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DIGEST 


OF    THE 


LAWYERS  REPORTS 
ANNOTATED 


VOLUMES  1-70 


(CITED   "L.  R.  A.") 


WITH  FULL   INDEX  TO  ANNOTATION 


Abandonment-Enlistment 


TE^E  LAWYERS  CO-OPERATIVE  PUBLISHING  COMPANY 

ROCHESTER,  N.  Y. 

1907 


Entered  according  to  Act  of  .Congress,  in  the  j'ear  nineteen  hundred  eeven,  by 

THE  LAWYERS    CO-OPEKATIVE  PUBLISHING  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C 


K.  R.  Amjkews  Pkihtino  Company,  Rochester,  N.  T. 


PKEFACE. 

This  Digest,  in  the  main,  follows  the  lines  pursued  in  former  Digests. 
A  few  changes  in  classificMion  have,  however,  been  made,  chief  among 
which  are  the  following :  The  subjects  of  Abatement  and  Revival,  Appear- 
ance, Dismissal  and  Discontinuance,  Election  of  Remedies,  Parties,  and 
Yenue  have  been  taken  from  Action  or  Suit,  and  placed  under  their  respec- 
tive titles.  The  subject  of  Assignments  for  Creditors  has  been  removed 
from  Insolvency,  and  placed  by  itself.  Matters  as  to  the  impairment  of  the 
obligation  of  contracts  have  been  changed  from  Contracts  to  Constitutional 
Law.  The  subject  of  Judges  has  been  placed  in  a  title  by  itself.  Fraud 
and  Fraudulent  Conveyances  have  been  separated,  and  each  subject  placed 
by  itself.  Breach  of  Promise,  Marriage,  and  Divorce  have  each  been  sepa- 
rated from  Husband  and  Wife,  and  placed  under  separate  heads.  Matters 
as  to  the  right  to  and  selection  of  a  jury  will  now  be  found  under  Jury, 
instead  of  under  Trial.  And  the  subjects  of  Mechanics'  Liens  and  Chattel 
Mortgages  have  been  placed  under  separate  heads,  instead  of  under  Liens 
and  Mortgages  as  heretofore. 

In  the  matter  of  subdividing  subjects  and  making  cross-references 
the  greatest  care  has  been  taken.  In  addition  to  the  full  and  carefully 
prepared  scheme  or  analysis  at  the  head  of  each  subject,  heavy-faced  head- 
ings are  used  throughout  the  work,  the  constant  aim  being  to  lighten  the 
labor  of  the  users  by  making  every  subdivision  that  could  in  any  possible 
way  be  helpful  to  them.  This  work  of  subdividing  has  been  supplemented 
by  a  most  careful  and  exhaustive  scheme  of  making  cross-references,  the 
effort  in  each  case  being  to  make  cross-references  from  every  subdivision, 
including  such  heavy-faced  headings,  to  all  paragraphs  on  the  same  subject 
in  other  parts  of  the  Digest,  whether  in  the  same  or  different  titles,  so  that 
anyone  finding  a  subdivision  in  any  part  of  the  Digest  bearing  on  the  subject 
before  him  will  be  able  to  find  there  all  cases  in  point,  or  cross-references 
to  them. 

The  cross-references  will  also  be  found  helpful  in  finding  any  particular 
subject  where  one  is  doubtful  as  to  its  exact  location.  The  thought  con- 
stantly in  mind  in  preparing  them  has  been  to  make  a  cross-reference  from 
every  place  where  one  would  be  liable  to  think  that  the  subject,  or  a  cross- 
reference  to  it,  might  be  found.  This  may  be  shown  by  the  following  illus- 
tration :  Matters  as  to  estoppel  of  the  grantor  in  a  deed  to  claim  the  property 
under  a  title  subsequently  acquired  by  him  are  placed  in  Estoppel.  One 
who  does  not  know  its  location  may  find  cross-references  from  After-Ac- 
quired Property,  Deeds,  Real  Property,  and  Vendor  and  Purchaser. 

This  Digest  contains  also  a  complete  index  to  the  annotation  for  the 


series.  The  index  for  each  subject  will  be  found  in  its  entirety  at  the  close 
of  the  subject.  This  course  was  adopted  to  preserve  the  homogeneity  of  the 
work,  which  could  not  have  been  done  if  isolated  portions  were,  in  each 
instance,  placed  in  the  particular  subdivision  where  they  naturally  belong. 
A  further  advantage  from  this  mode  of  treatment  is  the  doing  away  with  the 
necessity  of  using  the  separate  volume  of  the  Index  to  Notes,  except  as  one 
may  choose  to  use  it  when  looking  for  notes  only.  All  advantages  to  be 
obtained  by  scattering  the  matter  throughout  the  different  subdivisions  are 
secured,  however,  by  a  cross-reference  from  each  subdivision  to  the  particular 
section  or  sections  of  the  notes,  if  any,  which  are  in  point. 

A  Table  of  Cases  containing  reversed  titles  and  such  abbreviated,  as  well 
as  full,  forms  of  corporate  titles  as  will  be  likely  to  be  cited  by  the  courts  in 
any  instance,  together  with  references  to  all  Digest  paragraphs,  will  be 
found  at  the  close  of  the  third  volume. 

The  responsibility  for  the  preparation  of  this  digest  has  fallen  chiefly 
upon  Joseph  H.  Hill.  With  exceptional  ability,  developed  by  long  exper- 
ience in  similar  work,  he  has  shown  a  tireless  patience  in  the  endeavor  to 
give  this  digest  the  highest  excellencies  and  the  greatest  value. 


DIGEST 
LAWYERS  REPOETS  ANNOTATED 


TOLTJMES   1-70. 


A 


ABANDONMENT. 

Of  Cause  of  Action,  see  Action  or  Suit,  49; 
Election  of  Remedies,  53. 

Of  Appeal,  see  Appeal  and  Error,  364. 

Of  Common  Counts,  see  Appeal  and  Error, 
684. 

Of  Canal,  see  Canals,  10. 

Of  Eule  by  Carriers,  see  Carriers,  34,  36,  37. 

Of  Trip  by  Vessel,  see  Carriers,  116. 

Of  Cemetery,  Reversion  of,  see  Cemeteries, 
8-12. 

Of  Legal  Proceedini^s  as  Consideration,  see 
Compromise  and  Settlement,  4. 

Of  Constitutional  Power,  see  Constitutional 
Law,  I.  h. 

Of  Contract,  see  Contracts,  680,  761-764, 
VTII.  §§  49,  50. 

Of  Dedication,  see  Dedication,  IIL 

As  Ground  for  Divorce,  see  Divorce  and  Sep- 
aration, III.  b. 

Of  Easement,  see  Easements,  IV. 

Of  Condemnation  Proceed insfs,  see  Constitu- 
tional Law,  1128;  Eminent  Domain,  208. 

Of  Ferry,  see  Ferry,  24. 

Of  Pipe  Line,  see  Gas.  6,  7. 

Of  Hiphway,  see  Hisrhways,  V.  c;  Vendor 
and  Purchaser,  47. 

Of  Homestead,  see  Homestead,  HI. 

Of  Quarantine  Station,  see  Hospitals,  2. 

Of  Husband,  see  Courts.  454;  Homestead, 
60:  Husband  and  Wife,  93,  199,  208- 
224. 

Of  Wife,  see  Husband  and  Wife,  IV.;  Stat- 
utes, 299. 

Of  Children,  see  Infants,  41;  Parent  and 
Child.  37. 

Of  Revival  of  Judgment,  see  Judgment,  406. 

Of  Drifting  Logs,  see  Logs  and  Logging,  7. 

Of  Mining  Claim,  see  Mines,  11. 

Of  Premises  by  Lessee,  see  Landlord  and 
Tenant,  63,'  65. 

•Of  Levy,  see  Lew  and  Seizure,  59,  60. 
L.R.A.  Dig.— 1. 


Of  Contract  with  City,  see  Municipal  Cor- 
porations, 308,  309. 

Of  Railroad,  see  Eminent  Domain,  156. 

Of  Railroad  Lease,  see  Railroids,  10. 

Of  Street  Rnilway,  see  Mandamus.  113,  lU: 
Street  Railways,  40-49,  80-84. 

Of  Trademark,  see  Trademark.  40. 

Of  Trade  Name,  see  Trade  Name,  22. 

Of  Trial,  see  Trinl.  1. 

Of  Trust,  see  Trusts,  97. 

Of  Turnpike  Road,  see  Constitutional  Law, 
806. 

Of  Stream  for  Floataee    see  Wa+orci    4".  4*5. 

Of  Water  Rights,  see  Waters,  372-380,  411, 
502. 

Editorial  Notes. 

Of  right;  what  constitutes.    5:  259.* 

Of  canal.     61:871. 

Of   right   by   prior  apnropriator    of   water. 

30:265. 
Effect  of  nonuser  of  an  easement.     1:214;* 

6:652;*  18:5.3.5. 
Of  highway  by  nonuser  or  otl>prwi3<>  than 

by  act  of  nublic.     26:449. 
Of  bi<?hway,  effect  of.     26:659. 
Of  homestead  by  parent,  effect  on  rights  of 

children.     56:80. 
Of    vessel,    as    affectin?    marine    insurance. 

9:831.* 


ABATEMENT. 


Of  Action,  eee  Abatement  and  Revival. 
Of  Excessive  Portion  of  Assessment,  see  As- 
sumpsit, 56a,  57. 
Of  Rent,  see  Landlord  and  Tenant,  205,  206. 
Of  Nuisance,  see  Nuisances,  11.  c;  III. 
Of  Tax,  see  Taxes.  IIL  i. 
Of  Legacy,  see  Wills,  III.  I. 


ABATEMENT    AND  REVIVAL,   I.,  II. 


Editorial  Notes. 

Of  rent  on  destruction  of  premises,    22:  613. 
Of  obstruction  to  navigable  water.    59:  91. 
Of  dam.    59:  879. 


ABATEMENT  AND  REVIVAL. 

I.  In  General. 
II.  By  Death. 

III.  Pendency  of  Prior  Action. 

IV.  Revival. 

V.  Editorial  Notes. 

Abatement  of  Appeal,  see  Appeal  and  Er- 
ror, .362,  363. 

Following  State  Decision  as  to,  see  Courts, 
540. 

Plea  of,  see  Criminal  Law,  129,  130;  Plead- 
ing, 453-455,  560. 


I.  In  General. 

By  Unexecuted  Accord,  see  Accord  and  Sat- 
isfaction, 4. 

I'or  Misnomer,  see  Justice  of  the  Peace,  21. 

For  Lack  of  Necessary  Parties,  see  Parties, 
176. 

lU  Repeal  of  Statute,  see  Statutes,  610,  611, 
613. 

1.  A  disability  of  the  plaintiff  to  sue  is 
waived  by  failure  to  file  a  plea  in  abatement, 

■V  to  take  a  special  exception.     Missouri  P. 
R.  Co.  V.  Cullers,  81  Tex.  382,  17  S.  W.  19. 

13:  542 

2.  A  right  to  recover  for  injuries  to  real 
I)roperty  is  not  affected  by  its  sale  after 
commencement  of  the  action.  Seymour  v. 
Cummins,  119  Ind.  148,  21  N.  E.  549,    5:  126 

3.  The  mere  fact  that  suit  was  brought 
against  a  town  in  its  corporate  name  does 
not  amount  to  an  admission  of  its  continued 
corporate  existence.  Hornbrook  v.  Elm 
(Jrove.  40  W.  Va.  543.  21  S.  E.  851,     28:  416 

4.  A  suit  by  a  municipal  corporation  does 
not  abate  by  the  repeal  of  its  charter  and 
the  sul)stitution  for  the  old  corporation  of 
a  now  one  with  substantially  the  same  in- 
haliitants  and  localitv.  Mobile  Transp.  Co. 
v.  Mobile,  128  Ala.  3.35.  30  So.  645,  64:  333 
For  nonresidence. 

Of  At  tacliincnt  Suit,  see  Attachment.  48. 

5.  \\'Iicro  a  citizen  or  citizens  of  one  state 
sue  in  equify  citizens  of  other  states,  to 
enforce  a  trust,  in  a  district  where  tlio  prop- 
erty in  controversy  is  situated,  and  of  which 
one  or  more  of  the  defendants  is  or  are  in- 
haliitants,  the  suit  does  not  abate  by 
reason  of  the  nonresidcnry  of  some  of  the 
defendants;  but  the  nonresident  defendants 
who  have  been  properly  served  by  publica- 
tion or  otherwise,  and  who  sliall  fail  to  ap- 
pear, are  nevertheless  bound.  Langdon  v. 
((  lit  nil    ]\.   S:    15kg.   Co.   37    Fed.  449,     2:  120 


n.  By  Death. 

By  Dissolution  of  Corporation,  see  Corpora- 
tions, VI.  d. 

Power  of  Court  Over  Costs  Terminated  by, 
see  Appeal  and  Error,  1227. 

For  Editorial  Notes,  see  infra,  V.  §  1.-, 

6.  A  personal  action  under  the  Tennessee 
Code  is  not  abated  by  the  death  of  a  party, 
except  when  it  affects  the  character  of  the 
plaintiff.  Warren  v.  Furstenheim,  35  Fed. 
691,  1:40' 

7.  Under  the  Tennessee  Code,  the  surviva- 
bility of  a  cause  of  action  in  all  cases,  ex- 
cept for  an  injury  resulting  in  death,  re- 
mains as  at  common  law,  unless  an  action 
has  already  been  brought  before  a  death 
which  would  otherwise  abate  the  cause  of  ac- 
tion. Id. 

8.  A  cause  of  action  for  damages  to  real 
property  accruing  during  the  lifetime  of  de- 
cedent, which  is  survivable,  survives  to  hi* 
personal  representatives,  and  not  to  his- 
heirs.  Seymour  v.  Cummins,  119  Ind.  148, 
21  N.  E.  549,  5:  126 

9.  A  cause  of  action  will  not  survive  on 
the  ground  that  it  is  substantially  a  quasi- 
contract  unless  the  wrongdoer  acquired  spe- 
cific propertj'  by  which  the  assets  of  the  es- 
tate are  increased.  Payne's  Appeal,  65  Conn. 
397,  32  Atl.  948,  33:  418^ 
Stockholders'  liability. 

10.  The  contingent  liability  of  a  stock- 
holder in  a  Kansas  corporation  survives  up- 
on his  death  as  against  his  personal  repre- 
sentative. Fidelity  Ins.  T.  &  S.  D.  Co.  v. 
Mechanics'  Savings  Bank,  38  C.  C.  A.  193, 
97   Fed.  297,  56:  228 

11.  A  stockholder's  liability  to  creditors 
for  failure  to  make  and  record  the  certificate 
of  payment  of  all  the  capital  stock,  as  re- 
quired by  N.  Y.  act  1875,  is  not  penal,  and 
survives  his  death.  Cochran  v.  Matthiessen. 
119  N.  Y.  399,  23  N.  E.  803,  7:  55? 
Judgment  for  alimony. 

12.  A  judgment  for  alimony  in  favor  of  a 
wife,  the  right  to  which  becomes  vested, 
by  force  of  statute,  upon  a  uecree  of  divorce 
for  the  fault  of  the  husband,  is  a  debt 
against  the  husband,  subject  only  to  varia- 
tion in  amount  in  case  of  appeal,  which,  up- 
on the  death  of  both  parties  pending  ap- 
peal, will  survive  in  favor  of  the  personal 
representative  of  the  wife  and  against  the 
personal  representative  of  the  husband. 
Coffman  v.  Finney,  65  Ohio  St.  61,  61  N.  E. 
155,  55:  794 
Actions  for  torts  generally. 

13.  A  suit  for  a  tort,  brought  against  a 
wife  and  her  husband  jointly,  does  not 
abate  as  to  her  in  consequence  of  his  death 
during  its  pendencv.  Baker  v.  Braslin,  16 
R.  I.  635,  18   Atl.   1039,  6:  718 

14.  An  action  for  damages  by  fraudulent- 
ly inducing  plaintiff  to  take  a  lease  of  un- 
healthy premises  survives  after  defendant's- 
ileath.  Cutter  v.  Hamlen,  147  Mass.  471,  18 
N.  E.  397,  1 :  429 

15.  An  action  for  the  value  of  property 
stolen  is  included  among  the  causes  of  ac- 
tion and  actions  of  trespass  and  trespass  onj 


ABATEMENT   AND   REVIVAL,    III. 


the  case  for  damages  to  property,  within  the 
meaning  of  R.  I.  Pub.  Stat.  chap.  204,  §  8, 
providinfj  tor  the  survival  of  such  actions, 
on  the  death  of  the  partv.  Aylsworth  v. 
Curtis,  19  R.  1.  517, '34  Atf.  1109,  33:  110 
IG.  An  action  for  twice  the  value  of  prop- 
erty stolen  unless  it  is  restored,  and  for  its 
value  in  case  of  restoration,  which  is  given 
l»y  R.  I.  Gen.  Laws,  chap.  233,  §  16,  is  not 
a  penal  action  so  as  to  take  it  out  of  the 
rule  for  the  survival  of  actions  for  dam- 
ages to  personal  estate.  Id. 
Action  to  cancel  forged  marriage  'contract. 

17.  T'ht>  right  of  action  to  cancel  a  mar- 
riage contract  which,  if  genume  and  fol- 
lowed by  the  requisite  consummation  to 
make  it  operative,  would  create  rights  in  the 
property  of  the  alleged  husband,  survives  to 
liis  executor  or  administrator.  Sharon  v. 
Terry,  13  Sawy.  387,  36  Fed.  337,         1:  572 

18.  The  transfer  of  the  property  of  the 
plaintiff  in  a  suit  to  cancel  a  forged  marriage 
contract,  while  such  suit  is  pending,  does 
not  abate  it  if  the  plaintiff  retain  a  right 
during  his  life  to  claim  the  rents  and  prof- 
its thereof;  and  the  purchasers  or  bene- 
ficiaries under  such  transfer  are  entitled  to 
the  benefit  of  the  decree  rendered  in  such 
suit  canceling  the  contract, ,  to  protect  the 
property  from  claims  made  under  or  by  vir- 
tue of  it.  Id. 
For  breach  of  promise  of  marriage. 

For  Editorial  Notes,  see  infra,  V.  g  1. 

19.  An  action  for  breach  of  contract  of 
marriage  and  seduction  necessarily  tenders 
iin  issue  us  to  the  plaintiff's  character,  and 
is  within  the  exception  of  Mill.  &  V.  (Tenn.) 
Code.  §  3560.  which  provides  that  actions 
shall  not  abate  by  the  death  of  either  party, 
except  actions  "for  wrongs  affecting  the 
character  of  the  plaintiff."  Weeks  v.  Rus- 
sell, 87  Tenn.  442,  10  S.  W.  771,  3:  212 
For  personal  injuries. 

20.  A  cause  of  action  for  personal  inju- 
ries does  not  survive  at  common  law;  and 
the  administrator  of  the  injured  person  can- 
not maintain  an  action  in  Rhode  Island  for 
injuries  occurring  in  Massachusetts,  unless 
there  is  a  Massachusetts  statute  providing 
for  the  survival  of  such  action.  O'Reillv  v. 
New  York  &  N.  E.  R.  Co.  16  R.  L  388, '17 
Atl.  906,  5:  364 

21.  Causes  of  action  for  personal  injuries 
which  survive  the  death  of  the  persons,  in- 
jured, under  Wis.  Rev.  Stat.  §  4253,  are  not 
limited  to  cases  where  deatn  does  not  ensue 
from  the  injury,  although  other  sections  of 
the  statute  provide  a  right  of  action 
for  relatives  injured  by  wrongful  death. 
Brown  v.  Chicago  &  N.  W.  R.  Co.  102  Wis. 
137,  77  N.  W.  748,  78  N.  W.  771,  44:  679 

22.  A  cause  of  action  against  a  master  for 
injuries  inflicted  on  a  servant  by  a  mob  of 
strikers  does  not  survive  the  servant's  death, 
under  a  statute  providing  that  no  action  for 
personal  injury  shall  die  with  the  person  ex- 
cept actions  for  assault,  etc.  Foreman  v. 
Taylor  Coal  Co.  112  Ky.  845,  66  S.  W.  1044. 

57:447 

23.  An  action  against  a  railroad  company 
for  personal  injuries,  pending  when  Ga.  act 
November    12,    1880,   amending   Ga.   Code,   § 


2967,  was  passed,  does  not  abate  upon  the 
death  of  the  plaintiff;  nor  is  that  act,  as 
applicable  to  actions  pending  at  the  time  of 
its  passage,  unconstitutional.  Pritehard  v. 
Savannah  Street  &  R.  R.  Co.  87  Ga.  294,  13 
S.  E.  493,  14:  721 

24.  The  negligent  act  of  a  driver  in  run- 
ning over  a  person  is  not  a  trespass  or  as- 
sault and  battery,  within  the  meaning  of  a 
statute  which  provides  that  a  right  of  action 
for  personal  injury  will  survive,  except  cer- 
tain actions  including  that  of  assault  and 
battery.  Perkins  v.  Stein,  94  Ky.  433,  22  S. 
W.  649,  20:  861 
For  death. 

See  also  infra,  42;  Death,  4,  9,  33. 

25.  The  liability  of  a  person,  under  the 
Pennsylvania  act  of  1855,  for  causing  the 
death  of  another  by  unlawful  violence  or 
negligence,  does  not  survive  against  his  ad- 
ministrator. Moe  v.  Smiley,  125  Pa.  136, 
17  Atl.  228,  3:  341 

26.  The  provision  of  Pa.  Const,  art.  3,  § 
21,  that  in  case  of  injui-ies  resulting  in  death 
the  right  of  action  shall  survive,  saves  the 
cause  of  action,  but  not  the  liability.     Id, 

27.  An  action  for  causing  the  death  of  a. 
person,  brought  under  N.  Y.  Code  Civ.  Proc^ 
§  1902,  by  an  administrator  who  is  also  the- 
father  and  sole  next  of  kin  of  the  deceased 
and  the  sole  beneficiary  of  the  action,  is  aik 
action  to  recover  damages,  not  for  in- 
jury to  the  person  of  the  decedent,  but  for- 
wrongs  done  to  the  property  rights  or  in- 
terests of  the  beneficiary,  and  therefore  sur- 
vives to  his  estate  on  his  death,  although 
there  are  other  persons  living  who  would 
have  been  next  of  kin  of  the  deceased,  and 
for  whose  benefit  the  action  might  have  beea 
maintained  if  the  father  had  not  been  living 
when  the  right  of  action  accrued.  Re  Mee- 
kin,  164  N.  Y.  145,  58  N.  B.  50,  51:  235 
Abatement  as  to  one  defendant. 

28.  The  death  of  one  of'  two  physicians 
sued  as  partners  in  an  action  for  damages 
for  unskilful  treatment,  and  the  abatement 
of  the  action  as  to  him,  does  not  abate  it 
as  to  the  survivor.  Hess  v.  Lowrey,  122 
Ind.  225,  23  N.  E.  156,  7:  90 


III.  Pendency  of  Prior  Action. 

Waiver  of  Objection,  see  Appeal  and  Error, 

672. 
See  also  Election  of  Remedies,  47;  Pleading, 

560. 
For  Editorial  Notes,  see  infra,  V.  §  1. 

•  29.  The  mere  pendency  of  a  suit  against 
the  lessee  of  a  wharf,  for  injuries  caused  by 
its  defective  condition,  will  not  abate  a 
subsequent  suit  against  the  owner  of  the 
wharf.  State  use  of  Bashe  v.  Boyce,  72  Md. 
140,  19  Atl.  366.  7:  272 

30.  Fla.  act  of  June  9,  1891,  chap.  4043, 
which  gives  to  the  board  of  phosphate  com- 
missioners control  of  the  phosphate  inter- 
ests of  the  state,  and  authorizes  it  to  in- 
stitute suits  and  legal  proceedings  in  the 
name  of  the  state  to  protect  such  interests. 


ABATEMENT   AND  REVIVAL.   IV..  V. 


does  not  abate  an  action  previously  institut- 
ed by  the  attorney  general  in  the  name  of 
the  state.  State  v.  Black  River  Phosphate 
Co.  32  Pia.  82,  13  So.  640,  21:  189 

31.  The  pendency  of  an  action  by  one  per- 
son to  enjoin  the  collection  of  a  license  tax 
is  not  ground  for  the  abatement  of  a  similar 
ax:tion  by  another  person,  although  the  lat- 
ter contributed 'towards  paying  the  expenses 
of  the  suit  by  the  former.  Davis  v.  Petrino- 
vich,  112  Ala.  654,  21  So.  344,  36:  615 
Suit  in  other  state. 

32.  The  pendency  of  an  action  in  another 
state  between  the  same  parties  and  for  the 
same  cause  does  not  abate  another  suit. 
Douglass  V.  Phenix  Ins.  Co.  138  N.  Y.  209,  33 
N.  E.  938.  20:  118 

33.  The  pendency  of  a  former  suit  for  the 
same  cause  of  action  is  not  a  ground  for  the 
abatement  of  an  action,  unless  the  prior  and 
subsequent  actions  are  both  pending  in  the 
same  jurisdiction.  O'Reilly  v.  New  York  & 
N.  E.  R.  Co.  16  R.  I.  395,  19  Atl.  244,  6:  719 

34.  Garnishment  proceedings  pending  in 
another  state  are  not  ground  for  abatement 
of  an  action  for  the  garnisheed  debt,  if  no 
jurisdiction  was  acquired  in  the  garnishment 
proceedings.  Douglass  v.  Phenix  Ins.  Co. 
138  N.  Y.  209,  33  N.  E.  938,  20:  118 

35.  The  pendency  of  a  prior  action  by  at- 
tachment in  another  state,  which  binds  the 
debt,  may  be  set  up  by  way  of  defense  to 
a  suit  by  the  defendant  in  the  attachment  in 
the  state  of  Minnesota  to  recover  the  same 
debt.  Harvev  v.  Great  Northern  R.  Co.  50 
Minn.  405,  52  N.  W.  905,  17:  84 

36.  An  action  upon  notes  on  which,  after 
its  commencement,  a  judgment  is  recovered 
in  another  state,  is  barred  thereby,  and  can- 
not be  continued  on  a  supplemental  com- 
plaint stating  the  fact  of  such  judgment. 
Swedish  American  Nat.  Bank  v.  Dickinson 
Co.  6  N.  D.  222,  69  N.  W.  455,  49:  285 

37.  A  pending  action  on  a  poMcy  of  life 
insurance,  brought  in  another  state  by  a 
duly  appointed  administrator  of  the  insured, 
who  died  there  having  the  policy,  which  was 
payable  to  his  legal  representatives,  in  his 
possession,  service  of  process  being  duly  ob- 
tained upon  a  designated  agent  of  the  com- 
pany, will,  on  the  principle  of  comity,  de- 
feat jurisdiction  of  an  action  brought  on  the 
policy  in  the  state  where  it  was  payable  at 
the  home  office  of  the  insurer,  and  where  the 
insured  resided  when  the  policy  was  issued 
and  his  widow  still  resides,  even  if  she  has 
been  duly  appointed  his  administratrix  in 
that  state.  Sulz  v.  Mutual  Reserve  Fund 
L.  Asso.  145  N.  Y.  563,  40  N.  E.  242,  28:  379 
Federal  or  state  court. 

For  Editorial  Note,  see  infra,  V.  §  1. 

38.  The  pendency  in  a  state  court  of  a 
prior  action  between  the  same  parties  for 
the  same  cause  furnishes  no  ground  for  an 
abatement  or  for  a  stay  of  proceedings  in 
a  subsequent  action  brought  by  the  same 
plaintiff  in  a  Federal  court,  where  no  con- 
flict arises  between  the  courts  over  the  cus- 
tody or  dominion  of  specific  property.  Re 
Barber  Asphalt  Pav.  Co.   132  Fed.  945, 

67:  761 

39.  The  pendency  of  an  action  in  a  Federal 


court  after  removal  from  a  state  court  will 
abate  an  action  subsequently  brought  in  the 
state  court.  Willson  v.  Milliken,  103  Ky. 
165,  44  S.  W.  660,  42:  449 

Effect  of  dismissal  or  discontinuance. 

40.  The  objection  of  a  former  suit  pend- 
ing is  removed  by  its  dismissal  or  discontin- 
uance, even  after  plea  in  abatement  in  a 
second  suit,  unless  this  was  brought  for  the 
purpose  of  vexation.  Id. 

41.  To  prevent  abatement  of  an  action  on 
purchase-money  notes,  it  may  be  shown  that 
a  prior  attachment  and  a  bill  in  chancery 
for  the  recovery  of  the  debt  had  been  re- 
spectively discontinued  and  unproductive. 
Grossman  v.  Universal  Rubber  Co.  127  N. 
Y.  34,  27  N.  E.  400,  13:  91 


rv.  Revival. 

For  Editorial  Notes,  see  infra,  V.  §  2. 

42.  While  the  right  to  revive  an  action  in 
a  Federal  court  is  made,  by  U.  S.  Rev.  Stat. 
§  955,  to  depend  upon  the  survivability  of 
the  cause  of  action,  these  courts  are  bound 
by  a  local  law,  such  as  that  of  Tennessee, 
which  saves  an  action  already  commenced, 
although  the  right  of  action  would  not  have 
survived  except  for  the  previous  commence- 
ment of  ^he  suit.  Warren  v.  Furstenheim, 
35  Fed.  691,  1 :  40 

43.  An  ejectment  suit  may  be  revived  in 
the  name  of  the  heirs  on  the  death  of  the 
plaintiff,  although  the  provision  in  McClel. 
(Fla.)  Dig.  p.  829,  §  74,  is  for  revival  in  the 
name  of  the  "legal  representative,"  since  the 
heir  is  the  real  representative  of  the  ances- 
tor, and  by  the  supreme  court  rule  95  any 
person  in  interest,  other  than  the  executor 
and  administrator,  may  be  made  a  party  by 
direction  of  the  court.  Gould  v.  Carr,  33 
Fla.  523,  16  So.  259,  24:  130 

44.  An  administrator  is  properly  substi- 
tuted for  his  predecessor  in  a  pending  suit 
of  replevin.  Cox  v.  Martin,  75  Miss.  229, 
21  So.  611,  .36:  800 

45.  After  the  death  of  an  administrator 
suing  in  his  own  name  in  a  foreign  state 
upon  a  judgment  obtained  in  the  state  of  his 
appointment,  the  suit  may  be  revived  in 
the  name  of  his  administrator  appointed  un- 
der the  laws  of  the  foreign  state.  Tittman 
V.  Thornton,  107  Mo.  500,  17  S.  W.  979, 

16:  410 

46.  An  action  for  libel  against  a  corpora- 
tion, which  abates  by  the  expirntion  of  the 
corporate  charter,  may  be  revived  against 
the  trustees  of  the  dissolved  corporation  in 
office  at  the  time  of  dissolution.  Shayne  v. 
Evening  Post  Pub.  Co.  168  N.  Y.  70,  61  N. 
E.  115,  55:  777 


V.  Editorial  Notes. 

§  I.  Abatement;  survival. 

Pendency  of  actions  in  both  state  and  Fed- 
eral courts  sitting  in  the 
same  state.     42:  449. 


ABBREVIATION— ABSTRACTS. 


Cases  holding  that  the  pendency  of  suit 
is  no  defense.     42:  449. 
Summary.    42:  449. 
Where    the    parties    are    different. 
42:  450. 
Actions  against  one  of  several 

obligors.     42:  450. 
Actions  to  foreclose  mortgages. 

42:  451. 
Actions    by    bondholders.     42: 

452. 
Miscellaneous      actions.       42: 

453. 
Suits  affected  by  garnishment. 
42:  455. 
Where  the  parties  in  one  are  parties 
or    privies    to    the   other. 
42:  455. 
Where     the      pending     suit      has 

been  dismissed.    42:  459. 
In  matters  of  insolvency,  adminis- 
tration, and  probate  pro- 
ceedings.    42:  460. 
Admiralty  cases.     42:  462. 
Cases  holding  that  the  pendency  of  suit 
is  a  defense.    42:  462. 
Suits  for  divorce   in   different   states.      59: 

187. 
Effect  of  death  of  party.     3:  212.* 
Death  of  party  to  suit  for  libel  or  slander 

by  wife.    30:  529. 
Suit  for  breach  of  promise.     3:   213.* 
Action   against   phvsician    or   surgeon.     37: 

838. 
Action  for  fraudulently  inducing  void  mar- 
riage.    33:411. 
Survivability  as  a  test  of  assignability  of 
cause   of    action    for    per- 
sonal tort.     14:514. 
§  2.  Revival. 

On  death  of  party.     1:  40.* 
On  death  of  sole  plaintiff.     1 :  572.* 


ABBREVIATION. 


Judicial  Notice  of,  see  Evidence,  133. 

Editorial  Notes. 

Of  person's  name.     14:  694, 

Of  officer's  name  in  acknowledgment, 

815. 

Use  of,  in  books  of  account,  as  affecting 
their  admissibility  in  evi- 
dence.    52:  573. 


14: 


ABDUCTION. 


Habeas  Corpus   for  Abducted  Criminal,  see 
Habeas  Corpus,  35. 

Wrongful  abduction  of  a  criminal  by  state 
officers  from  another  state  to  which  he  has 
fled  docs  not  defeat  the  jurisdiction  of  the 
courts  to  try  him  in  the  state  where  he 
committed  the  crime.  Kingen  v.  Kelley,  3 
Wyo.  566,  28  Pac.  36,  15:  177 


Editorial  Notes. 

Of  criminal  as  defense  to  prosecution. 
177. 


15: 


ABORTION. 


Evidence  of  Statements  of  Female,  see  Evi- 
dence, 1584. 

Admissibility  of  Dying  Declarations,  see  Ev- 
idence, 1701,  1703,  1705. 

Resulting  in  Death  of  Female,  see  Homicide, 
9. 

Indictment  for  Causing  Death  by,  see  In- 
dictment, etc.,  88. 

Death  of  Insured  While  Submitting  to,  see 
Insurance,   1077,  1078. 

Question  for  Jury  as  to  Necessity  of,  see 
Trial,  158. 

1.  Conspiring  to  commit  an  abortion  is 
not  a  felony  at  common  law.  Scott  v.  El- 
dridge,  154  Mass.  25,  27  N.  E.  677,       12:  379 

2.  Voluntary  submission  to  treatment  for 
the  purpose  of  an  abortion  precludes  any 
right  of  action  against  other  persons  tor  in- 
ducing and  aiding  the  attempt.  Goldnamer 
V.  O'Brien,  98  Ky.  569,  33  S.  W.  831,    36:  715 

Editorial  Notes. 

Evidence  of  other  crimes  in  prosecution  for. 
62:  229. 

Homicide  in  commission  of,  or  attempt  to 
commit.     63:  902. 

Admissibility  of  dying  declarations  in 
prosecution  for  homicide 
by  commission  of,  or  at- 
tempt to  commit,  abortion. 
63:  916. 


ABRIDGMENT. 

Editorial  Notes. 


As  infringement  of  common-law  right  in 
intellectual  productions. 
51:  378. 


ABSENCE. 

Of  Judge  During  Trial,  see  Appeal  and  Er- 
ror, nil,  1112. 


ABSORBED. 


Death  of  Insured  from  Thing  Absorbed,  see 
Insurance,  VI.  b,  3,  e. 


ABSTRACTS. 


On  Appeal,  see  Appeal  and  Error,  IV.  m. 
Levy  on  Books  of,  see  Levy  and  Seizure,  20. 


<; 


ABUSE— ACCEPTANCE. 


Eigrlit  to  Kxamine  Records  for,  see  Records, 

Tax  on  Jlooks  of.  see  Taxes,  128,  129. 
Delect   in  Title  Shown  by,  see  Vendor  and 
Purchaser.  28-33. 

1.  A  clerk  is  not  liable  for  want  of  skill 
or  lionest  errors  of  jiulfrnient  in  making  an 
al)stract  of  title  and  certifying  to  the  result, 
aitlioii<:li  lie  received  25  cents  therefor,  where 
it  is  not  his  duty  to  make  such  search,  but 
he  erroneously  supposed  that  it  was.  and  he 
was  neither  a  lawyer  nor  engaged  in  the 
business  of  making  such  abstracts.  Mallory 
V.  Ferguson,  50  Kan.  685,  32  Pac.  410,    22:  99 

2.  It  is  not  part  of  the  official  duty  of  a 
clerk  of  the  district  court  of  Kansas  to 
make  and  certify  to  searches  of  the  records 
in  liis  ofHce  for  judgments,  liens,  or  suits 
pending  aflecting  the  title  to  real  property. 

Id. 
.).  It  will  not  be  presiuued,  in  the  absence 
of  evidence,  that  a  clerk  whose  duty  it  was 
not  to  make  abstracts  of  title  and  who  was 
not  a  lawyer  nor  engaged  in  the  business  of 
making  abstracts,  agreed  to  make  a  careful 
searcli.  and  correctly  certil>  as  to  the  condi- 
tion of  the  title,  merely  because  he  signed 
a  certilicate  to  an  abstract  of  the  title  and 
received   2-")  cents  therefor.  Id. 

IMitorial  .votes. 

Right    of    abstractors    to    inspect     records. 

27:  82. 
Of   title.    Iiiibilit\    of   odicer   for  defects    in. 

22:  IIO. 


ABUSE. 
Of  Passenger,  see  Carriers,  II.  a,  3,  b. 


ABUSE  OF  PROCESS. 

P>y  Attorneys,  see  .\ttorneys.  80. 
Resulting  in  Death,  see  D«ith.  58. 
Punitive  Damages  for.   see  Damages.  47-4!). 
Measure  of   Damages  for,  see    Damages.  III. 

g-   . 
Successive    (iarnishment    of    \\  ages    as.    see 

llxeniptions.  4. 
l.ial)i]ily   for.  see   False  Imprisonment;   Ma- 

licidus   Prosecution. 
Fur    Ivlitotial    Note.   >ee  Writ   and    Process. 

1\'.  i  4. 

I!enio\ing  a  tenant  from  the  leased  prem- 
ises in  which  lie  and  his,  family  are  living, 
under  a  judgment  of  forcible  entry  and  de- 
tainer, (in  a  <ol{l  (lay.  at  a  time  when  his 
child  is  visibly  broken  out  with  measles, 
is  an  abu-e  .  '  legal  ])rocess  which  will  render 
llie  landlord  liable  for  the  injurious  conse- 
fjuences  to  the  child,  although  he  has  pro- 
cured a  certificate  from  her  physician  to  the 
ell'ect  that  removal  will  not  injure  her 
health.  I'.rad.shaw  v.  Frazier.  113  Iowa.  57!). 
85  X.  \\  .  7.")2.  55:  25S 


ABUTTING  OWNERS. 

Rights  of,  in  Alley,  see  Alleys,  3-6. 

Injuries  Resulting  to,  from  Construction  and 
Operation  of  Canal,  see  Canals,  3,  6. 

Punitive  Damages  for  Cutting  Trees  on  Side- 
walk, see  Damages,  58. 

Measure  of  Damages  to.  in  Condemnation 
Proceedings,  see  Damages,  III.  I,  4. 

Right  to  Maintain  Ejectment  for  Wrongful 
Use  of  Highway,  see  Ejectment,  19-22. 

What  Constitutes  a  Taking  of  Propertj'  of, 
see  Eminent  Domain,  III.  b.  2. 

Right  to  Compensation  for  Property  Taken, 
see  Eminent  Domain,  271-274,'^327-338. 

Additional  Servitude  as  against,  see  Emi- 
nent Domain,  IV.  b,  V.  §  19. 

Rights  in,  and  Title  to.  Highways,  see  High- 
ways, II.,  VII.  §  4. 

Rights  of,  as  against  Railroad  in  Street,  see 
Highways,  142-147. 

Right  of,  as  to  Trees  and  Materials  in 
Streets,  see  Highways,  II.  e. 

Compelling  Cleaning  of  Sidewalks  by,  see 
Highways,  195,  196. 

Criminal  Liability  for  Failure  to  Build  and 
^laintain  Sidewalk,  see  Highways,  208. 

Right  to  Change  Street  Grade  as  against,  see 
Highways,  200-202. 

Injury  to,  by  Improving  or  Repairing  High- 
ways, see  Highways,  III. 

Liability  of,  for  Injury  by  Defect  in  Street 
or  Sidewalk,  see  Highways,  IV.  d,  3. 

Right  to  have  Highway  Kept  Open,  see 
Highways,  V.  a^  2. 

Certiorari  as  Remedy  where  Highway  is  Dis- 
continued, see  Certiorari.  13.  19. 

Right  to  Injunction,  see  Injunction.  I.  1. 

Running  of  Limitations  against,  see  Limita- 
tion of  Actions,  142-145. 

Municipal  Liability  for  Injurj-  to,  see  Mu- 
nicipal Corporations,  453. 

Interference  with  Rights  of,  by  Discontinu- 
ing Park,  see  Parks  and  Squares.  8,  9. 

Duty  and  Liability  as  to  Local  Improv- 
ments  Generally,  see  Public  Improve- 
ments. 

Liability  of  Railroad  to,  on  Abolition  of 
Grade  Crossing,  see  Railroads,  68. 

Contest  by,  against  Laying  of"  Street  Car 
Tracks,  see  Street  Railways,  12. 

Consent  of,  to  Operation  of  Street  Railway, 
see  Street  Railways,  27-30. 

See  also   Adjoining  Owner. 


ACADEMY. 


Diversion  of  Charitable  Gift  for,  see  Chari- 
ties.  125. 

Sale  of.  by  County,  see  Counties,  80. 

I'se  of  School  Funds  for,  see  Schools,  4. 

Kveniption  of,  from  Taxation,  see  Taxes, 
2!t4.   304. 


ACCEPTANCE. 


Of  Service  on   Appeal,   see  Appeal  and   Er- 
ror,   1.36. 


ACCESS— ACCIDENT    INSURANCE. 


Of  Assignment  for  Credi'^ors,  Necessity  of, 
see  Assignments  for  Creditors,  56. 

Of  Negotiable  Paper,  see  Bills  and  Notes, 
II..   VII.   §   12. 

Of  Ofl'er,  see  Contracts,  I.  d,  4. 

Of  Performance  of  Contract,  see  Contracts, 
rv".  c,  3. 

Of  Dedication,  see  Dedication,  II. 

Of  Deed,  see  Deeds.  21,  29. 

Of  Deed  Poll,   see   Deeds,  34,  76. 

Of  Guaranty,  see  Guaranty,  8-13. 

Of  Highways,  see  Highways,  11-14. 

Of  Insurance  Risk,  see  Insurance,  210-215. 

■Of  Insurance  Policy,  see  Insurance,  216- 
230.  " 

Of  Provision  in  Benefit  Certificate,  Law 
Governing,  see  Conflict  of  Laws,   67. 

Of  Surrender  of  Lease,  see  Landlord  and 
Tenant,  62-67,  88-92. 

By  Purchaser,  see  Sale,  I.  d,  IV.  §  4. 

By  Public,  see  Towns,  14. 

Of  Legacy,  see  Executors  and  Administra- 
tors,  173;   Wills,  III.  i. 

♦•» 


ACCESS. 
Riparian  Eight  of,  see  Waters,  190-192. 


ACCESSION  AND  CONFUSION. 

Title  to  Crops  by,  see  Crops,  3. 
Compensation  for  Driving  Logs  Mixed  with 
One's  Own.  see  Logs  and  Logging,  2-4. 

A  tenant  does  not  lose  his  property  in 
manure  by  intermixing  it  wit;h  manure  of 
the  same  quality  and  value  belonging  to  the 
landlord,  without  the  latter's  consent. 
Pickering  v.  Moore,  67  N.  H.  533,  32  Atl. 
828,  31 :  698 

Editorial  Notes. 

Title  by  accession  to  crops,  fruit,  and  tim- 
ber wrongfullv  severed. 
32:  422. 

General  doctrine.     32:  422. 

Wlien  severed  under  bona  fide  belief  of 
title.      32:  423. 

When     severed     and     converted     with 
wrongful   intent.     32:  424. 

Distinguishable     though      changed      or 
mixed.     32:  429. 

When  article  changed  bv  process.     32: 
430. 

Position  of  purchaser.    32:  432. 

When  title  in  or  derived  from  the  states 
or  the  United  States.    32: 
433. 
Of  logs  in  jam.    3:  408.' 


ACCESSORY. 


Indictment    against,    see    Indictment,    etc., 
20,  92. 


Instructions  as  to,  see  Trial,  854. 
See  also  Criminal  Law  I.  e,  VI.  §  6. 


ACCIDENT. 


Meaning  of,  in  Bill  of  Lading,  see  Contracts, 
327. 

Judicial  Notice  of,  see  Evidence,  103,  104. 

Presumption  of  Negligence  from,  see  Evi- 
dence, II.  'h. 

To  Insured,  Presumption  as  to,  see  Evi- 
dence, 431^40. 

Evidence  of  Declarations  as  to,  see  Evi- 
dence, 1609-1616. 

Evidence  of  Precautions  after,  setf  Evidence, 
1919-1929. 

Evidence  of  Other  Accidents,  see  Evidence, 
1964-1974.  , 

Evidence  as  to.  Generally,  see  Evidence, 
1561-1569. 

Injuries  from  Accidental  Explosions,  see 
Explosions  and  Explosives,  II. 

As  Cause  of  Death  or  Injury  of  Insured, 
see  Insurance,  VI.  b,  3. 

Proximate  Cause  of,   see  Proximate   Cause. 

To  Person  on  Railroad  Track  or  at  Cross- 
ing, see  Railroads,  II.  d,  and  e. 

See  also  Act  of  God. 

1.  The  meaning  of  the  word  "accident" 
includes  the  result  of  human  fault  held  to 
be  actionable  negligence,  and  as  ordinarily 
used  is  not  synonoraous  with  "mere  acci- 
dent," or  "purely  accidental,"  or  any  simi- 
lar term.  Ullman  v.  Chicago  &  N.'W.  R. 
Co.  112  Wis.  150,  88  N.  W.  41,  56:  246 

2.  Loss  occasioned  by  accident  and  un- 
controllable events  does  not,  under  La.  Rev. 
Civ.  Code,  art.  2754,  render  a  person  liable 
if  he  is  without  fault.  New  Orleans  &  N. 
E.  R.  Co.  v.  McEwen  &  M.  49  La.  Ann. 
1184,  22  So.  675,  38:  134 

Editorial  Notes. 

What  is.    9:  685.* 

Inevitable;   what  is;   as  defense  to  carrier, 

11:  615.*   See  also   Act   of 

God. 
Liability  of  carrier  for  injuries  arising  from 

inevitable.     2:  252.* 
As  ground  of  injunction  against  judgment. 

■  30:  794. 
Equitable  relief  against  forfeiture  of  estate 

due  to   accident.     69:  849. 


ACCIDENT   INSURANCE. 

Notice  of  Injury  or  Death,   see  Insurance, 

892-894,  897,  898,  900-906. 
Cause  of  Injury  or  Death  of  Insured,   see 

Insurance,  VI.  b,  3. 
Extent  of  Recovery,  see  Insurance,  VI.  c.  2. 
Limitation  of  Time  to  Sue,  see  Insurance, 

1311,  1314. 
Insurance  against  Liability  for  Accident  to 

Employee,  see  Insurance,  1343-1354. 
Purchase  of  Policy  by  City  for  Fireman  as 

Defense   to   Action   for   his   Death,   see 

Municipal  Corporations,  461. 


ACCOMMODATION  NOTES— ACCORD  AND  SATISFACTION. 


ACCOMMODATION  NOTES. 

Note  for  Bank's  Accommodation,  see  Banks, 
295-297. 

Rights  on  Generally,  see  Bills  and  Notes, 
33,  98,  120,  130,  139,  190,  191,  200-203, 
217,  250,  266,  267,  VII.  §  11;  Ohecks,  25. 

What  Constitutes  Payment  of,  see  Bonds, 
36. 

Oral  Agreement  as  to,  see  Contracts,  141. 

Of  O»rporation,  see  Corpora ';ions,   135,  302. 

FW«ral  Jurisdiction  of  Action  on,  see  Courts, 
845a. 

Parol  Evidence  as  to,  see  Evidence,  1156, 
1158. 

Accommodation  Indorsement  by  Married 
Woman,  see  Husband   and  Wife,  32. 

Accommodation  Indorsement  by  Insane  Per- 
son, see  Incompetent  Persons,  12. 

Partner's  Power  to  Make,  see  Partnership, 
29. 


ACCOMPLICE. 


Liability  of,  see  Criminal  Law,  I.  e,  f. 

Admissibility  of  Instructions  to,  see  Evi- 
dence, 1026. 

Proof  of  Acts  or  Declarations  of,  see  Evi- 
dence, X.  g. 

As  Witness,  see  Witnesses,  17-20. 

Cross-Examination   of,   see   Witnesses,    107. 

Corroboration  of,  see  Witnesses,  194,  198, 
2372-2376. 

Editorial  Notes. 

Spectators  at  prize  fight  as.     15:  516. 
Basing  an  indictment  unon  testimony  of  ac- 
complices.   28:  319. 


ACCORD  AND  SATISFACTION. 

As  to  Compromise  and  Settlement,  see  Com- 
promise and   Settlement. 

1.  An  accord  and  satisfaction  is  the  ad- 
justment of  a  disagreement  as  to  what  is 
due  from  one  party  to  another,  and  the 
payment  of  the  amount  so  agreed  upon. 
Harrison  v.  Henderson,  67  Kan.  194,  72  Pac. 
875,  62:700 

2.  The  technical  distinction  between  a  sat- 
isfaction before  or  after  breach  of  a  contract 
is  disregarded  in  the  state  of  New  York; 
and  a  new  agreement  by  parol,  followed  by 
actual  performance  of  the  substituted  agree- 
ment, whether  made  and  executed  before  or 
after  breach,  is  a  good  accord  and  satisfac- 
tion of  the  covenant.  McCreery  v.  Day,  119 
N.  Y.  1,  23  X.  E.  198,  6:  503 

3.  A  new  agreement,  although  without 
performsMiPo,  if  based  on  a  good  considera- 
tion, will  be  a  satisfaction  of  the  old  6no 
if  accepted  as  such.  Id. 

4.  An  np-reement  to  deliver  a  new  machine 
and  take  back  one  in  controversy  is  not, 
before  it  is  executed,  a  bar  to  the  further 
prosecution  of  a  pending  action  to  recover 


the  latter.    A.  D.  Puffer  &  Sons  Mfg.  Co.  v. 
Lucas,  112  N.  C.  377,  17  S.  E..174,        19:  682 

5.  An  acceptance  of  benefits  from  a  relief 
fund  to  which  a  railroad  company  has  large- 
ly contributed,  by  an  employee  who  knows 
that  this,  under  his  contract,  will  have  the 
effect  to  release  the  railroad  company  from 
liability  for  the  injuries  he  has  received, 
constitutes  an  accord  and  satisfaction.  Eck- 
man  v.  Chicago,  B.  &  Q.  R.  Co.  169  111.  312, 
48  N.  E.  496,  38:  750 
By  part  payment  generally. 

Gift  of  Balance,  see  Gift,  2. 
See  also  infra.  Editorial  Notes. 

6.  The  payment  of  less  than  is  due  will 
discharge  the  debt  when  an  agreement  to 
that  effect  is  fully  executed,  and  the  dis- 
charge is  evidenced  by  a  written  receipt  for 
the  lesser  sum  in  full  satisfaction  of  the 
greater  one.  Dreyfus  v.  Roberts,  75  Ark. 
354,  87  S.  W.  641,  69:  823 

7.  The  mere  payment  by  a  debtor  of  an 
amount  denominated  "a  balance"  upon  an 
account  rendered,  and  its  retention  by  the 
creditor,  do  not  constitute  an  accord  and 
satisfaction.  Harrison  v.  Henderson,  67 
Kan.  194,  72  Pac.  875.  62:  760 

8.  To  constitute  a  payment  by  a  debtor  of 
an  amount  denominated  "a  balance,"  upon 
an  account  rendered,  an  accord  and  s-itisfac- 
tion,  it  must  have  been  offered  as  full  sat- 
isfaction of  a  claim,  and  accompanied  by 
such  declarations  or  under  such  circum- 
stances as  would  amount  to  a  condition 
that,  if  accepted  by  the  creditor,  it  would 
be  in  full  satisfaction  of  the  debt.  Id. 

9.  A  receipt  in  full  given  without  protest 
on  payment  of  the  undisputed  part  of  a 
claim  after  refusal  to  pay  another  part 
which  is  disputed,  when  the  money  is  appar- 
ently accepted  in  full  satisfaction,  consti- 
tutes an  accord  and  satisfaction.  Tanner 
V.  Merrill,  108  Mich.  58,  65  N.  W.  664, 

31:  171 

10.  The  acceptance  from  a  debtor  of  a 
sum  of  money  less  than  is  actually  due,  on 
a  distinct  agreement  that  it  shall  extinguish 
the  whole  debt,  may  operate  as  a  discharge, 
although  it  is  not  paid  at  any  different  time 
or  place  than  that  agreed  upon  originally. 
Clayton  v.  Clark,  74  Miss.  499,  22  So.  189, 

37:771 

11.  Promissory  notes  for  one  half  of  a 
debt  secured  by  chattel  mortgages  on  prop- 
erty of  the  debtor,  accepted  in  full  satisfac- 
tion and  discharge  of  the  indebtedness,  con- 
stitute a  good  accord  and  satisfaction.  Jaf- 
fray  v.  Davis,  124  N.  Y.  164,  26  N.  E.  351. 

11:  710 

12.  The  insolvency  of  the  debtor  is  Suffi- 
cient to  create  an  exception  to  the  rule  that 
acceptance  of  part  of  an  amount  due  cannot 
affect  the  satisfaction  of  the  whole  debt. 
Engbretson  v.  Seiberling,  122  Iowa,  522,  98 
N.  W.  319,  64:  75 
Part  payment  by  third  person. 

See  also  infra,  Editorial  Notes. 

13.  Payment  of  part  of  a  judgment  by  a 
third  person  for  the  benefit  of  the  debtor  is 
a  sufficient  consideration  for  a  release  of  the 
entire  judgment.  Marshall  v.  Bullard,  114 
Iowa,  462,  87  N.  W.  427,  54:  862 


ACCOUNT  BOOKS;  ACCOUNTING. 


Accord  with  third  person. 

14.  An  accord  between  the  plaintiff  and  a 
third  person  as  to  the  subject-matter  of  the 
suit,  and  a  satisfaction  moving  from  such 
third  person  to  the  plaintiff,  who  accepts 
and  retains  it,  are  available  in  bar  of  the 
action,  if  the  defendant  has  either  author- 
ized or  ratified  the  settlement.  Jackson  v. 
Pennsylvania  R.  Co.  (N.  J.  Err.  &  App.)  66 
N.  J.  L.  319,  49  Atl.  730,  55:  87 
Retaining  check  stating  that  it  is  in  full 

payment.  . 

15.  Retaining  the  proceeds  of  a  check  for 
less  than  the  amount  claimed  bo  an  unli- 
quidated bill  for  physician's  services  consti- 
tutes an  accord  and  satisfaction,  where  the 
check  was  sent  with  the  express  statement 
that  it  was  in  full  satisfaction.  Fuller  v. 
Kemp,  138  N.  Y.  231,  33  N.  E.  1034,  20:785 
Agreement  to  accept  less  than  full  amount. 

16.  A  mere  agreement  without  consider- 
ation, to  accept  a  less  sura  than  the  debtor 
owes,  in  full  satisfaction  of  the  debt,  is  a 
nudum  pactum,  and  cannot  be  enforced. 
Chicora  Fertilizer  Co.  v.  Dunan,  91  Md.  144, 
46  Atl.  347,  50:401 

17.  A  creditor  cannot  bind  himself  by  a 
simple  agreement  to  accept  a  smaller  sum  in 
lieu  of  an  ascertained  debt  of  larger  amount, 
such  an  agreement  being  nudum  pactum; 
but  if  there  be  any  benefit,  or  even  any  leg- 
al possibility  of  benefit,  to  the  creditor, 
thrown  in,  that  additional  weight  will  turn 
the  scale  and  render  the  consideration  suffi- 
cient to  support  the  agreement.  Jaffray  v. 
Davis,  124  N.  Y.  164,  26  N.  E.  351,     11:710 

18.  An  agreement  by  a  creditor  to  abate 
a  portion  of  his  debt,  payable  in  instalments 
and  secured  by  collateral  which  is  not  to  be 
sold  until  after  the  maturi*,y  of  the  last  in- 
stalment, in  consideration  of  its  immediate 
payment,  is  valid,  and  may  be  specifically 
enforced  bv  a  court  of  equity.  Chicora  Fer- 
tilizer Co.  V.  Dunan,  91  Md.  144,  46  Atl.  347, 

50:401 
Release  of  contract  of  satisfaction. 

19.  The  mutual  return  of  a  note  and  ac- 
counts given  in  satisfaction  of  it  is  a  re- 
lease of  the  contract  of  satisfaction,  and  re- 
stores the  note  to  its  status  as  a  valid  claim 
against  the  maker.  Feder  v.  Ervin  (Tenn. 
Ch.  App.)  38  S.  W.  446,  36:335 

Editorial  Notes. 

Defined;    what    constitutes.     11:  712.* 
Necessity    of    new    consideration.     11:  711.* 
By  part  payment.     20:  785. 

General  principles.     20:  785. 

Receipts.     20:  787. 

Consideration.     20:  788. 

Liquidated  demands.     20:  789. 

Payment  less  interest.     20:  789. 

Payment   before  the   debt   is   due,   etc. 
20:  790. 

Payment    of   costs   and    expenses.     20: 
790. 

Debtor's  note  or  check.    20:  791. 

Further  security.     20:  792. 

The  surrender  and  cancelation  of  note. 
20:  792. 

Other  than  money.     20:  792. 

Payment  by  third  party.     20:  794. 


Disputed  claim.     20:  795. 
Composition  arrangements.     20:  802. 
Unliquidated  demands.     20:  805. 
Effect  of  insolvency  of  debtor.     20:  808. 
No   consideration.     20:  808. 
Statutory  provisions.     20:  811. 
Effect  of  payment  of  debt   by   a  volunteer 
or  stranger  to  the  original 
undertaking.     23:  120. 
Of  partly   performed  contract    for   services. 

24:  233. 
With  one  joint  tort  feasor,  effect  on  liabil- 
ity of  other.     58:  300. 


ACCOtTNT  BOOKS. 


As  Evidence,  see  Evidence,  IV.  j,  XIII.   §§ 

42-45. 
Condition  in  Insurance  Policy  as  to  Place  of 

Keeping,  see  Insurance,  III.  e,  1,  d. 
Levy  on,  see  Levy  and  Seizure,  19. 


ACCOUNTING. 


By  Assignee  for  Creditors,  see  Assignments 
for  Creditors,  89-92. 

By  Insolvent  Loan  Association,  see  Build- 
ing and  Loan  Associations,  70-77. 

Under  Illegal  Contract,  see  Contracts,  429, 
605,  615,  627. 

By  Corporate  OflScers  for  Amounts  With- 
drawn for  Salaries,  see  Corporations, 
262. 

By  Promoter  of  Corporations,  see  Corpora- 
tions, 339-341,  344-346. 

In  Suit  by  Stockholders,  see  Corporations, 
484. 

Between  Forei^  Insurance  Company  and 
One  of  Its  Members,  see  Courts,  82. 

Between  Cotenants,  see  Cotenancy,  24-26. 

By  Personal  Representative,  see  Executors 
and  Administrators,  IV.  c. 

By  Infant  for  Use  of  Bicycle  on  Rescission 
of  Purchase,  see  Infants,  85. 

On  Resale  of  Mortgaged  Property,  see  Mort- 
gage, 55. 

Between  Partners,  see  Partnership,  102-115, 
132-135. 

Between  Sureties,  see  Principal  and  Surety, 
59. 

In  Receivership,  see  Receivers,  74. 

By  Trustee,  see  Trusts,  170,  171. 

Retention  of  Cause  for  Purpose  of,  see  Eq- 
uity, 73,  74. 

Effect  of  Judgment  in  Suit  for,  see  Judg- 
ment, 219. 

Jury  Trial  in  Case  of,  see  Jury,  21,  22. 

See  also  Accounts. 

1.  Equity  has  no  jurisdiction  on  the  ground 
of  an  accounting,  -of  a  suit  to  enforce  a  con- 
tract to  make  up  the  deficiency  in  the 
amount  of  the  net  earnings  of  a  railroad 
company  to  pay  interest  on  bonded  indebted- 
ness, where  plaintiff  alleges  that  there  have 
been  no  net  earnings,  and  asks  for  the  full 
amount  of  the  interest.  Bradford,  E.  &  C. 
R.  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.  123 
N.  Y.  316,  25  N.  E.  499,  11:  116 


10 


ACCOUNTS. 


2.  A  sheriflF  cannot  maintain  a  bill  in  eq- 
uity for  an  account  against  his  deputy  with- 
out  showing,  by  sufficient  allegations,  spe- 

,  cial  circumstances  entitling  him  to  discovery 
as  necessary  to  complete  and  adequate  re- 
lief, or  that  the  accounts  are  complicated 
and  intricate.  White  v.  Cook,  51  W.  Va. 
201,  41  S.  E.  410,  57:  417 

Between  life  tenants. 

3.  All  costs  of  production,  including  costs 
of  boring  productive  wells,  may  be  allowed 
as  a  set-off  against  rents  and  profits  for 
which  a  life  tenant,  who  is  also  a  tenant  in 
common  of  the  land,  may  be  compelled  to 
account  when  he  has  taken  petroleum  from 
the  land.  Williamson  v.  Jones,  43  W.  Va. 
562,  27  S.  E.  411,  38:  694 

4.  An  accounting  on  the  basis  of  rents  and 
profits,  and  not  for  annual  rental,  must  be 
made  oy  a  tenant  for  life,  or  a  tenant  in 
common  who  is  in  sole  possession,  claiming 
exclusive  ownership,  if  he  takes  petroleum 
oil  and  converts  it  to  his  exclusive  use.     Id. 

Editorial  Notes. 

Admiralty  jurisdiction  of.     66:  235. 

By  mortgagee.     9:  678.* 

Liability  of  cotenants  to  account  for  use 
and  occupation  and  rents 
and  profits.     28:  849. 

Jurisdiction  of  equity  over  suits  for  ac- 
counting with  respect  to 
real  property  in  another 
state  or  count rj'.     69:  691. 


ACCOUNTS. 


Priority  between  Assignees  of,  see  Assign- 
ment, 44. 

Mortgage  of,  see  Chattel  Mortgage,  21. 

Best  and  Secondary  Evidence  of,  see  Evi- 
dence, 800-802.' 

As  Evidence,  see  Evidence,  IV.  j. 

Settlement  of,  in  Probate  Court,  see  Exec- 
utors and  Administrators,  136. 

Interest   on.  see  Interest,  23,  24. 

Conclusiveness  of  Verified  Account,  see 
Pleading,  18. 

Compulsory  Reference  of  Long  Accounts,  see 
Kefcrence,  4,  5. 

T-equest  of,  see  Wills,  224. 

See  also   .Account  Books;   Accounting. 

1.  Where  the  subject-matter  of  a  contract 
is  the  ascertainment  «jf  the  net  profits  of  a 
firm  for  the  purpose  of  paying  in  cash  the 
value  of  a  one-third  share,  the  term  "out- 
standing accounts,"  unless  it  otherwise  ap- 
pear, has  a  particular  meaning  different 
from  the  ordinary  or  common  meaning. 
MacCulsky  v.  Klosterman.  20  Or.  108,  25 
Pac.  300.  10:  785 

2.  .A.ri  attoMi"  may  properly  include  in 
one  item  of  his  account  sued  on  his  compensa- 
tion for  writing  two  letters  to  different  per- 
sons U[)on  the  same  subject-matter.  Powers 
V.  Maiming,   154  Mass.  370,  28  N.  E.  290, 

13:  258 
What  are. 
Sop   also    infra.    Editorial    Notes,    §    2. 

3.  Tlie  doctrine  of  an  account  stated  does 


not  apply  to  a  single  item,  not  of  a  debt  due 
and  owing,  but  of  an  unliquidated  claim  of 
damages  for  the  breach  of  a  parol  or  simple 
contract.  Vanbebber  v.  Plunkett,  26  Or. 
562,  38  Pac.  707,  27:  811 

Opening;  correcting;  review  of. 
See  also  infra.  Editorial  Notes,  §  2. 

4.  The  delay  must  be  clearly  and  satis- 
factorily accounted  for,  and  absence  of 
laches  shown,  to  induce  a  court  to  grant  a 
review  of  a  trustee's  account  and  open  it 
up  to  further  litigation  four  years  after 
the  death  of  the  trustee,  and  more  than 
four  years  after  the  confirmation  of  his  ac- 
count. Priestley's  Appeal,  127  Pa.  420,  17 
Atl.  1084,  4:  503 

5.  A  stated  account  is  open  to  rectifica- 
tion upon  proof  at  any  time  before  the  limi- 
tation period  has  run  from  the  time  of  its 
rendition.  First  Nat.  Bank  v.  Allen,  100 
Ala.  476,  14  So.  335,  27:  426 

6.  A  bill  to  review  an  account  settled  and 
confirmed  can  only  be  maintained,  as  a  mat- 
ter of  right,  for  error  of  law  apparent  on 
the  face  of  the  record;  and  as  a  matter  of 
grace  it  can  only  be  had  upon  allegation  of 
newly  discovered  ,  testimonv.  Priestley's 
Appeal,  127  Pa.  420,  17  Atl.  1084,  4:  503 

7.  An  allegation  in  a  petition  for  a  re- 
view of  a  trustee's  account,  that  the  ac- 
countant had  claimed  commissions  on  money 
which  had  not  passed  through  his  hands, 
raises  an  objection  to  a  question  of  fact,  and 
not  of  law,  and  will  not  justify  the  granting 
of  a  bill  of  review.  '  Id. 

Editorial.  Notes. 

§  I.  Generally. 

Future;    mortgage    or   assignment    of.     14: 

126. 
§  2.  Account  stated. 

What    constitutes   an    account   stated.     27: 
811. 
General  definitions.     27:  811. 
Illustrations  of  what  have  been  held  to 
be    accounts    stated.      27: 
813. 
The   balance   must   be    definitely   fixed. 

27:  814. 
The  creditor  must  be  definite.     27:  814. 
Must  be  of  a  subsisting  debt.     27:  81.t. 
Need  not  be  signed.     27:  815. 
May   be  oral.     27:  815. 
Vouchers  need  not  be  surrendered.     27: 

815. 
With  third  person.     27:  815. 
Agreement   must    be    reached.     27:  816. 
Character    of    account    necessary.     27: 

818. 
Who  may  state  accounts.     27:819. 
Effect  to  change  contract  or  create  debt. 

27:  821. 
Subsequent   events.     27:  821. 
Retention     of     rendered     account.     27: 

821. 
Time  necessary.     27:823. 
.Mere  delivery   not   sufficient.     27:  824. 
Ettect  of  objection.     27:  824. 
To  whom  applicable.     27:  824. 
Death  or  cessation  of  dealing.     27:  825. 
Balance  brought  forward.     27:825. 
The  claim  must  be  clear.     27:  825. 


ACCRETIONS— ACKNOWLEDGMENT,  II. 


11 


Admission  of  debt.     27:  825. 
Question  foi-  court  or  jurv.     27:  825. 
"Effect  of,     4:503.* 
Effect  of  acquiescence  in.     4:  505.* 
Opening  up   settled  account.     4:  505.* 
•Correction    of    mi!>take    and    readjustment. 

4:  504.* 
Equitable  jurisdiction  over  stated  account'*. 
.  4:  504.* 


ACCRETIONS. 


See  Waters,  1.35,  164-169,  172.  173,  210-215, 
217,  IV.  §§  27,  28;   Wharves,  10. 


ACCUMULATION. 


Talidity  of  Devise  to  Trustees  for,  see  Per- 
petuities, 29j  4o. 


ACCUSED. 

^Necessity  of  Presence  of,  see  Criminal  Law, 

93-95. 
"Cross-Examination  of.  see  Witnesses,   108- 

115. 


ACETYLENE   GAS. 


Allegation  as  to  Falsity  of  Warranty  on 
Sale  of  Machine  for,  see  Pleading,  278. 

Damages  for  Injury  by  Explosion  of  Ma- 
chine, see  Damages,  150. 


ACKNOWLEDGMENT. 

I.  Who  may  Make  or  Take. 
II.  Nature  of  Act  of  Taking, 
ill.  Sufficiency;   Necessity;    Effect. 

a.  In  General. 

b.  By  Married  Woman. 
S.Y.  Correcting  or  Curing  Defects. 

V.  Editorial  Notes. 

To  Prove  Execution,  see  Evidence..  821,  823. 
To    Interrupt    Statute    of    Limitations,    see 

Limitation  of  Actions.  266-276. 
Of  Woman  as  One's  Wife,  see  Marriage,  26. 
•Of  Illegitimate  Child,  see  Parent  and  Child, 

19,  24. 
Forgery  of,  see  Real  Property,  73. 


I.  Who  may  Make  or  Take. 

For  Editorial  Notes,  see  infra,  V. 

1.  The   acknowledgment   of    a   deed   of   a 
corporation   aggregate  may   be  made  by  a 


authority  to  execute  the  deed,  in  the  absence 

of  any  statute  particularly  relating  to  the 

acknowledgment    or    proof    of    such    deeds. 

Hopper  V.  Ijovejoy    (N.  J.  Err.  &  App.)    47 

N.  .].  Eq.  573,  21  Atl.  298,  12:  588 

Who  may  take. 

Notary  of  Other  State,  see  Evidence,  918. 

Mortgagor,  see  Real  Property,  56. 

See  also  Mortgage,  24. 

For  Editorial  Notes,  see  infra,  V. 

2.  A  deputy  may  take  an  acknowledgment 
of  a  deed  in  his  own  name.  Summer  v.  ]Mit- 
ehell,  29  Fla.  179,  10  So.  562,  ~    14:  815 

3.  A  notary  who  is  the  trustee  in  a  deed 
of  trust  cannot  take  an  acknowledgment 
thereto.  Rothschild  v.  Dougher,  85  Tex. 
332,  20  S.  W.  142,  16:  719 

4.  An  attorney  who  is  a  notary  public  is 
not  disqualified  from  taking  an  acknowledg- 
ment of  a  mortgage  made  to  his  client,  mere- 
ly because  he  holds  for  collection  a  claim  se- 
cured by  the  mortgage,  if  it  does  not  appear 
that  he  had  any  beneficial  interest  in  having 
the  mortgage  made,  or  that  his  compensa- 
tion in  any  manner  depended  upon  the  mak- 
ing of  the  mortgage.  Havemeyer  v.  Dahn, 
48  Neb.  53G.  67  N.  W.  489,  33:  332 

5.  The  fact  that  an  acknowledgment  of  a 
deed  of  trust  to  a  corporation  was  taken  by 
a  stockholder  and  director  who  was  a  notary 
public  does  not  make  the  instrument  in- 
valid, in  the  absence  of  any  improper  con- 
duct, bad  faith,  or  undue  advantage  arising 
out  of  his  relation  to  the  corporation. 
Cooper  V.  Hamilton  Perpetual  Bldg.  &  L. 
Asso.  97  Tenn.  285,  37  S.  W.  12,  33:  338 

6.  A  notary  public  is  not  disqualified  from 
taking  an  acknowledgment  of  a  mortgage 
made  to  a  corporation,  merely  because  he 
is  the  secretary  and  treasurer  of  the  mort- 
gagee, where  it  does  not  appear  that  he  was 
a  stockholder  or  otherwise  beneficially  inter- 
ested in  having  the  mortgage  made.  Hor- 
bach  V.  Tyrrell,  48  Neb.  514,  67  N.  W.  485, 

37:  434 

7.  An  acknowledgment  of  an  instrument 
adopting  a  child,  which  is  required  to  be 
made  like  that  of  a  deed  of  real  estate,  may 
be  taken  by  a  deputy  clerk,  under  Iowa 
Code,  §  277,  which  gives  him  authority  to 
take  acknowledgment  "of  instruments  in 
writing,"  although  §  1955,  providing  for  the 
acknowledgment  of  conveyances  of  real  es- 
tate before  "some  judge  or  clerk."  does  not 
specifically  mention  deputies,  as  this  section 
is  to  be  construed  with  §  277.  Hilpipre  v. 
Claude,  109  Iowa,  159,  80  N.  W.  .332,     46:  171 

8.  An  acknowledgment  by  a  married  wom- 
an before  a  notary  in  Kentucky,  of  a  con- 
vevance  of  her  separate  estate  in  Tennessee, 
is 'ineffectual,  under  Tenn.  act  1869-70,  §  2 
(Mill.  &  V.  Code,  §  3347),  which  requires  a 
privy  examination  before  a  chancellor  or  cir- 
cuit judge  of  the  county  court.  Robinson  t. 
Queen,  87  Tenn.  445,  11  S.  W.  38,  3:  214 


n.  Nature  of  Act   of   Taking. 
9.  The  act  of  an  officer  in  taking  an  ac- 


representative  of  the  corporation  who  has    knowledgment  of  the  grantor  to  a  convey- 


12 


ACKNOWLEDGMENT,   III.   a.— IV. 


ance  of  real  estate  is  a  ministerial  one. 
Horbach  v.  Tyrrell,  48  Neb.  514,  67  N.  W. 
485,  37:434 

10.  In  taking  and  certifying  an  acknowl- 
edgment of  a  mortgage  as  provided  in  Ohio 
Rev.  Stat.  1892,  §  4106,  the  act  of  the  no- 
tary public  or  other  officer  taking  and  certi- 
fying the  same  is  a  ministerial,  and  not  a 
judicial,  act.  Read  v.  Toledo  Loan  Co.  68 
Ohio  St.  280,  67  N.  E.  729,  62:  790 


III.  Sufficiency;  Necessity;   Effect, 
a.  In  General. 

Necessity  of  Acknowledging  Assignment  for 
Creditors,  see  Assignments  for  Credit- 
ors, 53. 

Presumption  as  to  Validity,  see  Evidence, 
618. 

For  Editorial  Notes,  see  infra,  V. 

11.  A  blank  in  place  of  the  name  of  the 
grantor  in  a  certificate  of  acknowledgment, 

stating  that personally  came  before  the 

notary,  and  was  personally  known  to  be  the 
identical  person  whose  name  was  affixed  to 
the  instrument,  is  not  a  fatal  defect.  Mil- 
ner  v.  Nelson,  86  Iowa,  452,  53  N.  W.  405, 

19:  279 

12.  It  is  the  established  policy  of  the  law 
to  uphold  certificates  of  acknowledgment  of 
deeds,  and,  wherever  substance  is  found,  ob- 
vious clerical  errors  and  all  technical  omis- 
sions will  be  disregarded.  Summer  v.  Mit- 
chell, 29  Fla.  179,  10  So.  502,  14:  815 

13.  The  acknowledgment  of  a  deed  for 
record  in  Florida,  taken  out  of  the  state  and 
according  to  the  laws  of  the  state  where  it 
is  taken,  is  valid  under  Fla.  act  February 
24,  1873, — at  least  if  the  execution  of  the 
deed  complies  with  the  laws  of  both  states. 

Id. 

14.  The  omission,  from  a  certificate  of  ac- 
knowledgment of  a  tax  deed  of  the  words 
"in  and  for  said  county,"  following  the  name 
and  title  of  the  justice  of  the  peace  who  took 
the  acknowledgment,  will  not  render  the 
deed  invalid,  where  the  caption  or  venue 
gives  the  name  of  the  state  and  of  the  coun- 
tv.  Douglass  V.  Bishop,  45  Kan.  200,  25  Pac. 
828,  10:  837 

15.  The  instrument  acknowledged  may  be 
resorted  to  for  support  to  the  acknowledg- 
ment. Summer  v.  Mitchell,  29  Fla.  179,  10 
So.  562,  14:  815 

10.  The  grantee  of  the  heirs  of  one  who 
has  made  an  unacknowledged  deed  is  not  a 
"purchaser,"  within  1  N.  Y.  Rev.  Stat.  738, 
§  137,  declaring  that  an  unacknowledged  and 
unattested  deed  "shall  not  take  effect  as 
against  a  purchaser  or  encumbrancer  until 
so  acknowledged."  Strough  v.  Wilder,  119 
N.  Y.  530,  23  N.  E.   1057,  7:  555 

Showing  character  of  officer  taking. 
For  Kilitorial  Notes,  see  infra,  V. 

17.  Initials  may  l>e  suflTicient  to  show  the 
character  of  the  officer  by  whom  the  ac- 
knowledgment of  a  deed  is  taken.  Summer 
V.  Mitchell,  20  Fla.  179,  10  So.  562,      14:  815 

18.  Where  the  title  of  an  officer  taking  an 


acknowledgment  of  a  deed  is  written  out  in 
full,  in  the  body  of  the  certificate,  its  oinis- 
sion  from  the  signature  is  immaterial,  and 
affixing  it  to  the  signature  is  itself  suffi- 
cient. Initials  may,  however,  be  used,  and 
are  sufficient  to  designate  such  title.         Id. 

19.  A  certificate  of  acknowledgment 
signed  by  a  person  as  "deputy  clerk  S.  &  J. 
C."  was  held  sufficient  to  show  his  official 
character,  where  the  same  name  was  signed 
as  a  witness,  followed  by  "J.  P.,"  and  the 
statutes  of  the  state  permit  acknowledg- 
ment before  a  clerk  of  the  superior  court 
or  a  justice  of  the  peace.  Id. 

20.  Where  the  titlfe  of  an  officer  stated  in 
the  body  of  a  certificate  of  acknowledgment 
is  of  one  whom  the  law  did  not  authorize  to 
take  the  acknowledgment,  and  the  suffix  to 
the  signature,  read  in  connection  with  the 
deed,  if  not  alone,  indicates  an  officer  having 
such  authority,  the  suffix  will  control.       Id. 

21.  The  omission  of  the  words  "notary 
public,"  in  the  signature  to  a  certificate  of 
acknowledgment  by  a  notary,  the  body  of 
which  shows  that  he  was  acting  officially  as 
a  notary  public,  doe«  not  make  the  certifi- 
cate invalid.  Lake  Erie  &  W.  R.  Co.  v. 
Whitham,  155  111.  514,  40  N.  E.  1014, 

28:  612 
b.  By   Married   Woman. 

Conflict  of  Laws  as  to  Privy  Examination, 

see  Conflict  of  Laws,  108. 
See  also  supra,  8;  infra,  25,  27;  Husband  and 

Wife,  136-139. 
For  Editorial  Notes,  see  infra,  V. 

22.  A  conveyance  of  a  homestead  is  abso- 
lutely void  under  Neb.  Comp.  Stat.  1895, 
chap.  36,  §  4,  unless  it  is  acknowledged  by 
both  husband  and  wife.  Horbach  v.  Tyr- 
rell, 48  Neb.  514,  67  N.  W.  485,  37:  434 

23.  A  mistake  in  taking  the  privy  exam- 
ination of  a  woman  to  a  deed  before  her 
husband  has  acknowledged  the  execution  of 
it,  contrary  to  the  provisions  of  the  statute, 
which  deprives  it  of  the  privilege  of  regis- 
tration, may,  as  between  the  parties,  b"' 
cured  by  a  subsequent  statute,  so  as  to  per- 
fect the  title  in  the  grantee.  Barreit  v. 
Barrett,  120  N.  C.  127,  20  S.  E.  691,    36:  226 

24.  A  wife  who  fails  to  acknowledge  a 
conveyance  of  the  homestead  as  required  by 
Ala.  Code,  §  2508,  at  the  time  of  its  execu- 
tion or  subsequently,  during  the  life  of  her 
husband,  cannot  do  so  efficiently  as  against 
the  heirs,  after  the  husband's  death.  Rich- 
ardson V.  Woodstock  Iron  Co.  90  Ala.  266, 
8   So.  7,  9:  348 


IV.  Correcting  or  Curing  Defects. 

Ratification  of  Defective  Acknowledgment, 
see  Husband  annd  Wife,  139. 

Statute  Curing  Defects,  see  Constitutional 
Law,  128,  1137,  1191. 

See  also  supra.  23. 

For  Editorial  Notes,  see  infra,  V. 

25.  The  power  of  an  officer  authorized  to 
take  acknowledgments  of  married  women  to 
conveyances   of   homestead    property   ceases 


ACKNOWLEDGMENT,     V.— ACTION     OR  SUIT. 


13 


when  he  has  delivered  his  certificate  of  ac- 
knowledgment to  the  parties  and  it  has  been 
accepted  for  recording.  He  cannot  after- 
wards correct  errors  in  his  certificate,  or 
make  a  new  one,  without  a  reacknowledg- 
ment  of  the  instrument.  Griffith  v.  Ven- 
tress,  91  Ala.  366,  8  So.  312,  11:193 

26.  Void  acknowledgments  of  mortgages 
cannot  be  cured  by  statute  so  as  to  give 
them  effect  against  prior  purchasers  of  the 
property  in  good  faith  for  value  and  with- 
out notice.  Blackman  v.  Henderson,  116 
Iowa,  578,  87  N.  W.  655,  56:  902 

27.  A  statute  validating  the  probate  of  a 
deed  of  a  married  woman  whose  privy  ex- 
amination was  had  before  the  husbana's  ac- 
knowledgment, contrary  to  the  provisions  of 
the  statute,  will  cover  cases  where  the  exe- 
cution of  the  deed  by  the  husband  is  not 
proved  by  acknowledgment,  but  by  a  sub- 
scribing witness.  Barrett  v.  Barrett,  120 
N.  C.  127,  26  S.  E.  691,  36:  226 


V.  Editorial  Notes. 

As  Affecting  Limitation,  see  Limitation  of 
Actions,  V. 

Right    of    interested    persons    to    take    ac- 
knowledgment.    33 : 332. 
Parties  to  instruments.     33:  332. 
Parties  in  interest,  not  parties  to   the 

instruments.     33:  336. 
Agents,  attorneys,   and  officers   of  cor- 
porations.    33:  337 
Relatives   of  parties.     33:  340. 

Validity  of  acknowledgment  of  deed  of 
trust  taken  by  trustee. 
16:  719. 

Power  of  consul  to  take  acknowledgment  of 
deeds  and  powers  of  at- 
torney.    45:  499. 

Leaving  blank  for  name  of  party  in  cer- 
tificate of  acknowledg- 
ment.   19:  279. 

Sufficiency  of  abbreviation  to  show  official 
character  of  officer.  14: 
815. 

Of  deed  by  married  woman.  3:826;*  11: 
193.* 

Substantial  (onipliance  with  statute  suffi- 
cient; omission  in  caption 
not  to  invalidate;  how  in- 
formality cured ;  presump- 
tion as  to  official  charac- 
ter of  justice  of  the  peace. 
10:  857.* 


ACQUIESCENCE. 


Ratification  by,  see  Corporations,  245. 
Estoppel  by,  see  Estoppel,  III.  g. 


ACQUITTAL. 


As  Bar  to  Prosecution,   see  Criminal   Law, 

II.  g. 
What  is,  see  Criminal  Law,  144-146. 


ACTION  ON  THE  CASE. 


Right  to  Appeal  from  Judgment  of,  see  Ap- 
peal and  Error,  I.  c. 


See  Case. 


ACTION  OR  SUIT. 

I.  Nature  and  Right. 

a.  In  General;  What  Action^jhle. 

b.  Premature;    Conditions   Precedent. 

1.  In  General. 

2.  Restoration    of    Benefits    Re- 

ceived. 

3.  Demand;  Notice. 

c.  Defenses. 

II.  Union.  Choice,  or  Form  of  Remedies. 

a.  Kind;  Name. 

b.  Consolidation. 

c.  Splitting;  Successive  Suits. 

d.  Joinder. 

e.  Multifariousness. 

III.  Editorial  notes. 

Appearance  in,  see  Appeararlce. 

Dismissal  of,  see  Dismissal  or  Discontinu- 
ance. 

Commencement  of,  see  Limitation  of  Ac- 
tions, 222,  234-236. 

Parties  to  Action,  see  Parties. 

Removal  of,  see  Removal  of  Causes. 

Venue  of,  see  Venue. 

Costs  and  Fees,  see  Costs  and  Fees. 

Transfers  between  Law  and  Equity,  ace  Eq- 
uity, IT. 

Comity  in  General,  see  Conflict  of  Laws. 

Limitation  of  Actions  or  Suits,  see  Limi- 
tation of  Actions. 

Effect  of,  on  Runninsr  of  Limitations,  see 
Limitation  of  Actions,  IV.  b. 

Causes  of  Action  delating  to  Ships  and 
Shipping  Generally,  see  Shipping. 

Summary  Proceedings,  see  Summary  Pro- 
ceedings. 

Wliat  Constitutes  Due  Process  in,  see  Con- 
stitutional Law,  IT.  b,  7. 

Illegality  of  Contract  to  Prevent  Compro- 
mise of,  see  Contracts.  403. 

Right  to  Bring  Second  Action  of  Ejectment, 
see   Ejectment,  36. 

Actions  for  Injuries  from  Defects  in  Bridges, 
Highways,  and  Streets,  see  Bridges; 
Hisrhways,  IV. 

Civil  Damage  Suits,  see  Intoxicating  Liq- 
uors. IV.     b. 

To  Set  Aside  Judsrment,  see  Judgment,  VTI. 

To  Compel  Compliance  with  Bid  on  Judicial 
Sale,  see  .Judicial  Sale,  29a,  31. 

Between  Partners,  see  Partnership,  VII. 

Petition  for  Receiver  as,  see  Receivers.  3. 

Specific  Performance  of  Arreement  Not  to 
Bring,   see  Specific  Performance,  50. 

Suits  as   to  Taxes,  see  Taxes,  III.  d. 

Time  of  Filing,  see  Time,  26. 

Privilege  from,  see  Writ  and  Process,  II.  d. 


14 


ACTION  OR  SUIT,   I.   a. 


Jurisdiction  of  Courts,  see  Admiralty;  Ap- 
peal and  Error ;  Cloud  on  Title ;  Courts ; 
Creditors'  Bill;  Equity;  Injunction; 
Mandamus;  Prohibition;  Quo  Warran- 
to; Specific  Performance. 

On  Various  Instruments  and  Obligations, 
see  Bills  and  Notes,  VI.;  Bonds;  Con- 
tracts; Insurance,  VI.  h:  Judgment, 
VT.;  Mortgage,  VI.;  Patents:  Shipping. 

Particular  Causes  of  Action  for  Wrongs,  see 
Assault  and  Battery;  Case;  Conspir- 
acy; Death;  False  Imprisonment; 
Fraud  and  Deceit;  Fraudulent  Convey- 
ances; Libel  and  Slander;  Malicious 
Prosecution;  Negligence^;  Nuisances; 
Patents;  Seduction. 

Various  Matters  of  Procedure,  see  Attach- 
ment: Continuance  and  Adjournment; 
Depositions;  Evidence;  Execution; 
Judgment;  Jury;  Levy  and  Seizure; 
Trial;  Witnesses;  Writ  and  Process. 

Matters  Peculiar  to  Particular  Kinds  of 
Actions  and  Proceedings,  see  Admiral- 
ty; Assumpsit;  Attachment;  Case; 
Covenant;  Creditors'  Bill;  Debt;  Dis- 
covery and  Inspection;  Ejectment;  Em- 
inent* Domain;  Equity;  Garnishment; 
Injunction;  Mandamus;  Partition;  Pro- 
hibition; Quo  Warranto;  Replevin; 
Specific  Performance;  Trespass;  Trover. 


I.  Nature  and  Right, 
a.  In  General;  What  Actionable. 

Acts  Pursuant  to  Judgment  Subsequetly  Re- 
versed as  Basis  of  Action,  see  Appeal 
and  Error,  1244.  ' 

Due  Process  as  to  Right  of  Action,  see  Con- 
stitutional Law,  II.  b,  7,  b.  1. 

Equal  Privileges  of  Nonresidents  as  to,  see 
Constitutional  Law,  384,  385. 

Right  of  Action  by  or  against  Particular 
Classes  of  Persons,  see  Assignments  for 
Creditors;  Bankruptcy;  Carriers;  Char- 
itable Institutions;  Corporations:  Coun- 
ties; Executors  and  Administrators, 
III.;  Guardian  and  Ward;  Husband  and 
Wife,  HI.:  Incompetent  Persons,  V.;  In- 
fants, III.;  In.solvency;  Insurance; 
Landlord  and  Tenant;  Master  and 
Servant;  Municipal  Corporations;  Offi- 
cers; Parent  and  Child;  Partnership; 
Principal  and  Agent:  Principal  and 
Surety:  Railroads:  Receivers,  IV.; 
Sale;' Schools;  Sheriff ;  State;  Street 
Railways;  Tole^jraphs  ;  Telephones; 
Trusts;  Vendor  and  Purchaser. 

By  Stockholder  of  Corporation,  see  Corpora- 
tions, V.  e.  2. 

By  or  Against  Foreign  Corporations,  see  Cor- 
porations. \'IT.  c. 

For  Mental  SufTciing,  see  Damages,  III.  o. 

For  Soliciting  Woman  to  Sexual  Inter- 
course, see  Indecent  Proposals. 

Against  Insured  for  Premiums,  or  Assess- 
ments Due,  see  Insurance,  673. 

For  Assault  on  Servant,  see  Master  and 
Servant.  3. 


Against  Street  Railway  under  Ordinance- 
Imposing  Duties,  see  Municipal  Corpo- 
rations, 76. 

For  Erection  of  City  Prison,  see  Prison,  3. 

Against    School    Principal,    see    Schools,   62. 

Right  of  One  Civilly  Dead  to  Sue,  see  Civil' 
Death,    6,    7. 

Loaning  to  County  Treasurer  to  Enable  Him: 
to  Conceal  llmbezzlement,  see  Counties^ 
27. 

For  Editorial  Notes,  see  infra,  III.  §  1. 

1.  A  prohibition  against  suits  at  law  on 
policies  of  insurance  by  an  association  to  its- 
members,  who  were  jointly,  and  not  sever- 
ally, liable  thereon,  is  merelv  declaratory  of 
the  law  itself.  Perry  v.  Cobb,  88  Me.  435. 
34  Atl.  278,  49:  389' 

2.  Wrong  without  damage,  or  damage 
without  wrong,  does  not  constitute  a  cause 
of  private  action.  Janesville  v.  Carpenter, 
77  Wis.  288,  46  N.  W.  128,  8:  80a 

3.  The  maxim  De  minimis  non  curat  lex^ 
does  not  apply  to  the  positive  and  wrongful 
invasion  of  another's  property.  The  right 
to  maintain  an  action  for  the  value  of  prop- 
erty of  which  the  owner  is  wrongfully  de- 
prived is  never  denied.  Wartman  v.  Swin- 
dell (N.  J.  Err.  &  App.)  54  N.  J.  L.  589,  25 
Atl.   356,  18:  44 

4.  Where  the  invasion  of  a  right, — as  by 
the  erection  of  a  permanent  structure  on 
the  land  of  another. — if  submitted  to  on  the 
one  hand  and  persisted  in  on  the  other  a 
sufficient  length  of  time,  may  result  in  the 
extinction  of  the  right,  a  remedy  may  be 
sought  before  actual  damage  has  occurred. 
Attornev  General  ex  rel.  Adams  v.  Tarr,  148 
Mass.  309,  19  N.  E.  358,  2:  87 

5.  A  plaintiff  must  recover  on  the  strength 
of  his  own  case  instead  of  the  weakness  of 
the  defendant's  case,  as  it  is  his  right,  in- 
stead of  the  defendant's  wrongdoing,  that 
is  the  basis  of  recoverv.  Home  F.  Ins.  Co. 
V.  Barber,  67  Neb.  644'.  93  N.  W.  1024. 

60:  927 

6.  The  owner  of  goods  may  dictate  the 
prices  at  which  he  will  sell  them;  and  the 
damages  which  are  caused  to  an  applicant 
to  buy.  by  the  refusal  of  the  owner  to  sell 
to  him  at  prices  which  will  enable  him  to 
resell  them  at  a  profit,  constitute  no  legal 
injury,  and  are  not  actionable  because  they 
are  not  the  result  of  any  breach  of  duty  or 
of  contract  bv  the  owner.  Whitwell  v.  Con- 
tinental Tobacco  Co.  60  C.  C.  A.  200.  125 
Fed.  454.  64:  689 

7.  Continuing  trespasses  by  an  elevated 
railroad  company  on  easements  appurtenant 
to  certain  premises  give  a  right  of  action  to 
the  purcliaser  of  the  premises,  without  re- 
gard to  tlie  price  paid  by  him.  Pappenheim 
v.  Metropolitan  Elev.  R.  Co.  128  N.  Y.  436, 
28  N.  E.  518,  13:  401 

8.  An  action  at  law  will  not  lie  against 
a  city  to  recover  damages  for  the  prevention 
of  the  use  of  a  private  sewer  in  a  public 
street,  by  the  passage  of  a  municipal  ordi- 
nance, although  such  ordinance  interferes 
witli  vested  contract  rights  of  the  owner  of 
the  sewer.  Stevens  v.  Muskegon,  111  Mich. 
72,  69  N.  W.  227,  36:  777 


ACTION   OR  SUIT,   I.  b,  1. 


15 


9.  A  mnniiipal  ordinance  cannot  create 
civil  liability  apainst  a  person  vioating  it, 
in  favor  of  persons  injured  by  its  violation, 
since  this  is  a  power  which  belongs  alone  to 
the  sovereign  power  of  the  state.  Moran  v. 
Pullman  Palace  Car  Co.  134  Mo.  641,  36  S. 
W.  659,  33:  755 

10.  The  acts  of  a  commander  of  revolu- 
tionary forces  in  charge  of  a  captured  city 
of  another  countrj%  causing  injury  by  as- 
sault and  false  imprisonment  to  a  citizen  of 
the  United  States,  do  not  render  him  liable 
in  a  civil  action  in  the  United  States,— at 
least  after  the  revolutionary 'government 
has  been  established  and  recognized  by  the 
United  States  government,  even  if  the  acts 
complained  of  were  performed  before  the 
revolution  became  successful.  Underbill  v. 
Hernandez.  13  C.  C.  A.  51,  26  U.  S.  App.  573, 
65  Fed.  577,  38:405 

Affirmed   bv   the   Supreme    Court    of   the 
I'nited  States,  in  168  U.  S.  250,  42  L.  eo.  456, 
18  Sup.  Ct.  Rep.  83. 
Abstract  questions. 
See  also  infra,  25. 

11.  Courts  do  not  sit  for  the  purpose  of 
determining'  speculative  and  abstract  ques- 
tions of  law,  or  laying  down  rules  for  the 
future  conduct  of  individuals  in  their  busi- 
ness and  social  relations,  but  are  confined  in 
their  judicial  action  to  real  controversies 
wherein  legal  rights  of  parties  are  necessar- 
ily involved  and  can  be  conclusively  deter- 
mined. Thomas  v.  Musical  Mut.  Prot. 
Union,  121  "N.  Y.  45,  24  N.  E.  24,  8:  175 

12.  An  action  for  damages  will  not  lie 
against  a  state  institution  against  which 
judgment  cannot  be  enforced,  merely  for  the 
purpose  of  fixing  the  amount  of  damages  in 
order  to  make  a  claim  for  presentation  to 
the  legislature.  Maia  v.  Eastern  State  Hos- 
pital. 97  Va.  507,  34  S.  E.  617,  47:  577 
Novelty. 

13.  The  absence  of  a  common-law  prece- 
dent is  not  conclusive  that  no  right  of  ac- 
tion exists.  Koerber  v.  Patek,  123  Wis.  453. 
102  N.  W.  40,  68:  956 

14.  The  novelty  of  a  complaint  is  no  ob- 
jection to  the  action  if  it  is  made  to  ap- 
pear that  an  injury  has  been  inflicted  of 
which  the  law  is  cognizable.  Hundlev  v. 
Louisville  &  N.  R.  Co.  105  Ky.  162,  48  S.  W. 
429,  63:  289 

b.  Premature;     Conditions  Precedent. 
1.  In  General. 

By  Withdrawing  Member  of  Loan  Associa- 
tion, see  Building  and  Loan  Associa- 
tions, 67.   . 

To  Enforce  Stockholder's  Liability,  see 
Conflict  of  Laws,  190-193;  Corporations, 
638.   639. 

To  Rescission  of  Contract,  see  Contracte,  V. 
c,  2. 

To  Action  on  Policy,  see  Insurance,  921-925, 
1282,  1353. 

To  Action  for  Malicious  Prosecution,  see 
Malicious  Prosecution.  III. 

In  Foreclosure  Suit,  see  Mortgage,  140-142. 


To  Relief  from  Local  Assessment,  see  Pub-\ 
lie  Improvements,   150,  151. 

To  Action  for  Replevin,  see  Replevin,  1. 

In  Action  for  Penalty  for  Taking  Usury,  see 
Usury,  54. 

Tender  as  Prerequisite  to  Re-entry  for  Con- 
dition Broken,  see  Covenant,  48. 

See  also  Life  Tenants,  13. 

For  Editorial  Notes,  see  infra,  III.  §  2. 

15.  A  right  of  action  must  be  complete 
before  the  action  is  brought,  and  the  subse- 
quent occurrence  of  a  material  fact  will  not 
avail  in  maintaining  it.  Marj'lanJ  Tube  & 
I.  Works  V.  West  End  ImproV.  Co.  87  Md. 
207,  39  Atl.  620,  39:  810 

16.  If  a  contract  fixes  the  time  for  a 
payment  agreed  upon,  but  fixes  no  time  for 
doing  that  which  is  the  condition  of  the  pay- 
ment, performance  of  the  condition  is  not 
a  condition  precedent  to  an  action.  Donovan 
V.  Judson,  81  Cal.  334.  22  Pac.  682.        6:  591 

17.  The  right  to  bring  an  action  for  pur- 
chase money  of  land,  under  a  contract  by 
which  one  party  agrees  to  convey,  without 
fixing  any  time  therefor,  while  the  other 
agrees  to  pay  the  price  a  certain  time  after 
final  judgment  in  his  favor  in  a  certain 
pending  suit,  accrues  when  such  time  has 
expired,  although  no  conveyance  is  made.  Id. 

18.  Where  goods  are  purchased  upon  an 
agreement  to  give  a  promissorj'  note  for 
the  price,  payable  in  one  year,  with  interest, 
on  refusal  of  the  purchaser  to  make  and 
deliver  the  note  after  the  goods  have  been 
delivered,  the  vendor  may,  without  wait- 
ing for  the  expiration  ot  the  credit,  maintain 
an  action  at  once  for  the  breach  of  the  agree- 
ment; and  the  measure  of  damages  will  bb 
the  price  of  the  goods  sold  and  delivered. 
Stephenson  v.  Repp,  47  Ohio  St.  551,  25  N. 
E.  803,  10:  620 

19.  An  action  against  a  county  treasurer 
and  his  bondsmen  for  the  recov^y  of  moneys 
alleged  to  have  been  converted  by  such 
treasurer  is  not  prematurely  brought,  if 
commenced  after  the  termination  of  office 
of  such  treasurer,  and  after  he  has  given  a 
bond  and  qualified  as  his  own  successor  in 
office.  Thomssen  v.  Hall  County,  63  Neb. 
777,  89  N.  W.  393,  57:303 

20.  A  prior  entry  upon  the  premises,  or 
a  demand  for  the  possession,  is  not  neces- 
sary, upon  the  breach  of  a  condition  subse- 
quent, before  suit  to  recover  possession. 
Lyman  v.  Suburban  R.  Co.  190  111.  320,  60 
N.   E.  515,  52:  645 

21.  The  payment  of  a  note  which  has  been 
transferred  to  an  innocent  purchaser  by  the 
payee  in  violation  of  his  contract  with  the 
maker  is  not  a  condition  precedent  to  a 
right  of  action  by  the  maker  for  breach  of 
the  contract,  notwithstanding  that  he  is  in- 
solvent. Lvle  V.  McCormick  Harvesting 
Mach.  Co.  10*8  Wis.  81,  84  N.  W.  18,      51:  906 

22.  The  delivery  of  a  life  insurance  policy 
which  is  void  for  failure  to  pay  a  premium 
is  not  a  prerequisite  to  the  institution  of 
an  action  to  obtain  judgment  for  a  paid-up 
policy  in  accordance  with  a  provision  of 
the  policy,  as  such  original  policy  is  of  no 
effect  and  can  be  of  no  value  to  any  person. 


16 


ACTION  OR  SUIT.    I.   b.   2.   3. 


Mutual   L.  Ins.  Co.  v.  Jarboe,  102  Ky.  80, 
42  S.  W.   1097,  39:  504 

23.  No  formal  rescission  of  the  contract 
is  necessary  before  bringing  an  action  for 
damages  in  obtaining  property  from  an  in- 
toxicated person  at  an  inadequate  price. 
Baird  v.  Howard,  51  Ohio  St.  57,  36  N.  E. 
732,  22:  846 

24.  A  decree  of  the  judge  of  probate  is 
not  necessary  to  a  suit  on  an  executor's 
bond  for  a  sum  which  is  admitted  to  be  due. 
Judge  of  Probate  v.  Sulloway,  68  N.  H.  511, 
44  Atl.  720,  49:  347 

25.  A  concrete  case  of  which  the  court 
has  jurisdiction  is  presented  by  a  petition 
on  behalf  of  a  railroad  company  to  enjoin 
ticket  brokers  from  buying  and  selling  spe- 
cial tickets  made  nontransferable  on  their 
faces,  not  only  as  to  those  tickets  which 
have  already  been  issued,  but  as  to  such  as 
will  be  issued  in  the  future,  where  the  in- 
junction is  to  be  made  applicable  only  after 
the  contract  has  been  entered  into,  the  tick- 
et issued,  and  property  rights  thereunder 
have  accrued.  Sehubaeh  v.  McDonald,  179 
Mo.  163,  78  S.  W.  1020,  65:  136 
Breach  of  promise  of  marriage. 

26.  The  refusal  to  carry  out  a  contract  of 
marriage  may  entitle  the  other  party  to 
bring  a  suit  for  the  breach,  even  though  the 
time  in  which  the  contract  is  to  be  per- 
formed has  not  expired.  Lewis  v.  Tapman, 
90  Md.  294,  45  Atl.  459,  47:  385 

27.  An  action  for  brieach  of  promise  of 
marriage  is  not  prematurely  brought  when 
begun  eight  daj's  after  the  day  fixed  for  the 
marriage,  and  without  waiting  for  the  cure 
of  a  disease  for  which  the  defendant  claimed 
to  liave  postponed  the  marriage,  where  his 
acts  and  declarations  sufficiently  show  that 
he  did  not  intend  to  fulfil  his  contract,  even 
after  he  was  cured,  Trammell  v.  Vaughan. 
158  Mo.  214,  .59  S.  W.  79,  61 :  854 

2.  Restoration  of  Benefits  Received. 

28.  A  return  of  a  sum  of  money  paid  to  a 
wife  in  consideration  of  a  deed  of  separation 
between  herself  and  her  husband,  in  which 
she  attempted  to  release  all  her  rights  in  his 
property,  is  not  a  necessary  prerequisite  to 
the  maintenance  of  an  action  to  enforce 
her  right  of  dower  in  her  husband's  lands 
after  his  death,  since  such  release  was  ab- 
solutely void,  and  can  in  no  way  affect  her 
dower  rights.  Land  v.  Shipp,  98  Va.  284. 
36  S.  E.  391,  50:  560 

29.  Return  of  the  property  is  not  a  condi- 
tion precedent  to  the  maintenance  of  an 
action  against  promoters  for  secret  profits 
in  the  sale  of  the  property  to  the  corpora- 
tion in  fraud  of  the  rights  of  future  stock- 
holders, if  the  property  is  no  longer  in  the 
condition  in  which  it  was  when  the  corpora- 
tion took  it,  or  it  did  not  originally  belong 
to  the  promoters,  but  to  straners.  Hay- 
ward  V.  Leeson,  176  Mass.  310,  57  N.  E.  656, 

49:  725 

30.  A  city  is  not  bound  to  repay  money 
which  has  been  paid  into  the  treasury  on 
an  illegal  sale  of  waterworks  by  the  citA', 
council,  before  recovering  possession  of  the 


property,  where  it  has  not  appropriated  or 
use  I  the  money  in  any  way.  Huron  Water- 
works Co.  V.  Huron,  7  S.  D.  9,  62  N.  W.  975, 

30:  848 

3.  Demand;  Notice. 

Demand. 

To  Action  on  Guaranty,  see  Guaranty,  22. 

In  Mandamus  Suit,  see  Mandamus,  153-156, 
206. 

For  Foreclosure  of  Mortgage,  see  Mortgage, 
142. 

In  Suit  against  City,  see  Municipal  Corpora- 
tions, II.  g,  6. 

For  Support  of  Pauper,  see  Poor  and  Poor 
Laws,  10. 

In  Replevin   Suit,   see  Replevin,   I.   c. 

As  Condition  Precedent  to  Set -Off,  see  Set- 
off and  Counterclaim,  53. 

In  Trover,  see  Trover,  I.  c. 

See  also  supra,  20. 

For  Editorial  Notes,  see  infra,  III.  §  2. 

31.  No  subsequent  demand  upon  a  sheriff 
is  necessary  to  recover  money  collected  by 
him  upon  execution  under  an  exempt  judg- 
ment, where  he  has  applied  it  upon  an- 
other execution  which  has  not  been  lawfully 
levied  thereon  against  the  creditor  in  the 
exempt  judgment,  without  any  notice  to  him 
or  opportunity  to  make  any  demand.  Wvlie 
V.  Grundysen,  51  Minn.  360,  53  N.  W.  805, 

19:  33 

Notice. 

In  Suit  against  City,  see  Municipal  Corpora- 
tions, II.  g,  6. 

Before  Abatement  of  Nuisance,  see  Nui- 
sances, 113-116. 

32.  An  action  for  damages  for  conspiracy 
is  not  within  the  provision  of  Wis.  Rev. 
Stat.  §  4222,  subd.  5,  requiring  notice  wifhin 
one  year  after  the  event  as  a  condition  of 
an  action  for  injury  to  the  person.  Gatzow 
V.  Buening,  106  Wis.  1,  81  N.  W.  1003, 

49:475 

33.  The  requirements  of  notice  in  Mass. 
employers'  liability  act,  §  3,  only  apply,  so 
far  as  §  1  is  concerned,  to  the  cases  lying 
outside  the  common-law  rule  but  embraced 
by  §  1,  unless  the  plaintiff,  although  having 
a  common- law  remedy,  insists  on  relying 
upon  the  statute  alone.  Ryalls  v.  Mechanics 
Mills,  150  Mass.  190,  22  N.  E.  766,        5:  667 

34.  A  notice  to  a  railroad  company  of  a 
claim  by  two  persons  for  the  value  of  certain 
live  stock  killed  on  the  railroad  is  not  in- 
sufficient to  authorize  a  recovery  by  one  of 
those  persons  for  a  part  of  the  stock  owned 
by  him  individually,  under  Or.  Laws  1893, 
p.  28,  requiring  notice  bv  the  owner.  Brown 
V.  Southern  P.  Co.  36  Or.  128,  58  Pac.  1104, 

47:  409 
35-36.  Failure  to  object  to  the  mainte- 
nance of  an  action  without  having  given  the 
notice  required  by  Wis.  Rev.  Stat.  §  4222, 
subd.  5,  to  be  given  within  one  year  after 
the  injury,  except  by  objection  to  evi- 
dence on  the  trial,  is  a  waiver  of  the  failure 
to  give  the  notice,  as  the  statute  does  not 
make  this  a  condition  of  the  right,  but  only 
a  limitation  on  the  remedy.  Gatzow  v. 
Buening,  106  Wis.  1,  81  N.  W.  1003,    49:  475 


ACTION  OR  SUIT,   I.   c. 


17 


c.  Defenses. 

In  Action  for  Assault,  see  Assault  and  Bat- 
tery, II. 

In  Disbarment  Proceedings,  see  Attorneys, 
31-33. 

In  Action  on  Negotiable  Paper,  see  Bills  and 
Notes,  VI.  0. 

In  Action  for  Breach  of  Promise,  see  Breach 
of  Promise,  II.  • 

In  Suit  to  Remove  Cloud  from  Title,  see 
Cloud  on  Title,  II. 

In  Proceeding  to  Punish  Unlawful  Combina- 
tion, see  Conspiracy,  129.       \ 

In  Action  for  Causing  Death,  see  Death,  PV. 

In  Suit  for  Divorce,  see  Divorce  and  Separa- 
tion, IV. 

In  Ejectment  Suit,  see  Ejectment,  II.  b. 

In  Action  for  False  Imprisonment,  see  False 
Imprisonment,  III. 

In  Action   on  Policy,  see  Insurance,   VI.   e. 

In  Action  for  Rent,  see  Landlord  and  Tenant, 
190. 

In  Libel  Suit,  see  Libel  and  Slander,  III.  c. 

In  Mandamus  Case,  See  Mandamus,  207-219. 

In  Foreclosure  Suit,  see  Mortgage,  VI.  d. 

In  Action  for  Death  of  Fireman,  see  Munici- 
pal Corporations,  461. 

In  Proceedinsrs  to  Abate  Nuisance,  see  Nui- 
?ances,  II.  d. 

In  Replevin  Suit,  see  Replevin,  II.  b. 

In  Trover,  see  Trover,  36-38. 

Discharge  in  Bankruptcy  of  Individual  Lia- 
bility on  Firm  Debt,  see  Bankruptcy,  52. 

Invalidity  of  Cashier's  Purchase  of  Bank 
Stock,  see  Banks,  41. 

Contributory  Negligence  as,  see  Blasting,  20. 

Violation  of  Statute  as  Excuse  for  Breach  of 
Contract  to  Finish  Cars,  see  Carriers, 
950. 

Champerty  as,  see  Champerty,  18,  19. 

Defect  in  Administrator's  Bond.  See  Execu- 
tors and  Administrators,  24. 

Infancy  as,  see  Infants,  I.  d. 

Fraudulent  Use  of  Label  or  Trade  Name,  see 
Injunction.  454-458. 

Illegality  as  Defense  in  Collateral  Matter, 
see  Lotterj%  2. 

Mistake  of  Law  as,  see  Reformation  of  In- 
struments. 14. 

Violation   of  Sunday  Law,   see  Sunday,  V. 

Usury  as,  see  Usury,  27. 

To  Guaranty  of  Corporate  Dividends,  see 
Corporations,  724. 

Against  Liability  as  Stockholder,  see  Cor- 
porations, 600-606.  618-621. 

Defense  to  Creditors'  Bill,  see  Creditors'  Bill, 
10. 

To  Local  Improvement  Assessment,  see  Pub- 
lic Improvements,  200-203. 

Of  Telegraph  Company,  see  Telegraphs,  99. 

Liability  on  Contracts  Generally,  see  Con- 
tracts, VI.  b. 

Due  Process  as  to,  see  Constitutiona  Law, 
II.  b,  7,  b,  2. 

Question  for  Jury  as  to  Validity  of,  see 
Trial,  502. 

See  also  infra,  85. 

37.  The  invalidity  of  a  gratuitous  contract 
to  do  a  certain  act  is  no  defense  to  an  action 
by   the   promisee   for  injuries   sustained  by 
L.R.A.  Dig.— 2. 


want  of  due  care  and  skill  in  doing  it. 
Wertheimer  v.  Saunders,  95  Wis.  573,  70  N. 
W.  824,  37:  146 

38.  The  right  to  recover  for  injury  to  a 
dog  is  not  lost  by  killing  him,  under  the 
honest  but  mistaken  beliet  that  he  was  fa- 
tally injured.  Citizens'  Rapid  Transit  Co.  v. 
Dew,  100  Tenn.  317,  45  S.  W.  790,        40:  518 

39.  When  both  husband  and  wife  are  par- 
ties plaintiff  to  a  suit  and  the  claim  sued 
on  belongs  to  one  or  the  other,  the  defendant 
is  without  interest  to  urge  that  the  claim 
belongs  to  one  of  the  spouses  in  particular, 
and  that  the  suit  should  have  been  brought 
distinctively  in  the  name  of  the  owner  of 
tjie  claim.  Lewis  v.  Holmes,  109  La.  1030, 
34  So.  66,  61:  274 
Kight  to  make. 

Right  of  Corporation  to  Set  vsp  Ultra  Vires 
as,  see  Corporations,  IV.  d,  2. 

Who  may  Set  up  Defense  of  LTsury,  see 
Usury,  40-45. 

40.  The  right  to  defend  a  suit  for  a  di- 
vorce cannot  be  denied  on  account  of  de- 
fendant's failure  to  pay  alimony  as  ordered 
by  the  court.  Gordon  v.  Gordon,  141  111.  160, 
30  N.  E.  446,  21 :  387 
Legislative  authority. 

41.  Acts  of  a  railroad  or  other  private 
corporation  in  the  execution  of  charter  or 
statutory  powers  are  not  within  the  rule 
that  legislative  authority  for  acts  causing 
consequential  injury  to  private  property  is 
a  bar  to  a  claim  for  indemnity.-  Booth  v. 
Rome,  W.  &  O.  T.  R.  Co.  140  N.  Y,  267,  35 
N.  E.  592,  24:  105 
Corn^ption  in  passage  of  resolution. 

42.  Corruption  in  the  passage  of  a  resolu- 
tion by  a  city  council  may  be  set  up  by  *bs 
city  in  defense  of  an  action  which  is  based 
on  the  resolution.  Weston  v.  Syracuse,  158 
N.  Y.  274,  53  N.  E.  12,  "  43:  678 
Worthlessness  of  property  destroyed. 

43.  That  property  was  worthless  is  no 
defense  to  a  claim  for  damages  for  its  de- 
struction. Ft.  Wayne  Land  &  Improv.  Co. 
V.  Maumee  Ave.  Gravel  Road  Co.  132  Ind. 
80,  30  N.  E.  880,  15:651 
Nuisance. 

44.  A  railroad  company  which  unlawfully 
injures  a  mill  by  the  construction  of  its  road 
cannot  set  up  in  defense  that  the  mitldara 
is  a  public  nuisance.  Watts  v.  Norfolk  & 
W.  R.  Co.  39  W.  Va.  196,  19  S.  E.  521, 

23:  674 
Act  or  fault  of  plaintiff. 

45.  An  unlawful  act  of  a  person,  if  it  di- 
rectly contributes  to  a  personal  injury  which 
he  sustains,  is  a  conclusive  bar  to  a  recovery 
for  such  injury  against  another  person  on 
the  ground  of  negligence.  Broschart  v.  Tut- 
tle,  59  Conn.  1,  21  Atl.  925,  11 :  33 

46.  An  infant,  even  one  of  tender  years, 
is  precluded,  by  his  violation  of  the  law 
against  climbing  upon  or  catching  hold  of  a 
locomotive  or  car,  from  recovering  for  in- 
juries sustained  in  consequence  thereof. 
Barney  v.  Hannibal  &  St.  J.  R.  Co.  126  Mo. 
372,  28  S.  W.  1069,  26:  847 

47.  It  is  no  defense  to  an  action  for  dam- 
ages caused  by  the  falling  of  a  wall  on  ac- 


18 


ACTION  OR  SUIT,   I.   c. 


count  of  fastening  a  wire  to  it  to  secure  a 
telpgraph  pole,  which  occurred  during  a 
heaAV  rain,  whereby  plaintiffs  rooms  were 
flooded  with  water'  that  the  property  in- 
jured consisted  of  furniture  and  implements 
kept  for  the  purpose  of  gaming,  where  it  is 
not  shown  that,  at  the  time  of  the  injury, 
plaintiff  did  any  act  contributing  or  having 
any  relation  to  it,  or  that  the  property  was 
then  being  used  for  illegal  purposes.  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Johnson,  71  Tex.  619, 
9  S.  W.  602,  1:  730 

Commencement  of  work. 

48.  The  fact  that  work  has  begun  under 
an  illegal  contract  will  not  preclude  an  ac- 
tion to  prevent  its  execution,  and,  at  the 
most,  will  affect  the  extent  of  relief.  Adams 
V.  Brenan,  177  111.  194,  52  N.  E.  314,  42:  718 
Abandonment. 

49.  Failure  to  bring  an  injunction  suit  to 
prevent  the  changing  of  the  grade  of  a  street 
without  making  compensation  for  injury  to 
the  abutting  owner  is  not  an  abandonment 
of  the  right  to  bring  an  action  for  such  com- 
pensation after  the  change  is  effected.  Hen- 
derson V.  McClain,  102  Ky.  402,  43  S.  W.  700, 

39:  349 
Effect  of  motive. 

50.  The  motive  which  induces  a  person  to 
bring  an  action  is  immaterial,  if  he  has  a 
legal  right  to  the  remedy  he  is  seeking. 
Hamilton.  G.  &  C.  Traction  Co.  v.  Parrish. 
67  Ohio.  181,  6.J  N.  E.  1011,  60:  531 

51.  The  motives  inspiring  those  who  in- 
duce the  governor  to  institute  an  action  in 
the  name  of  the  state  to  prevent  the  viola- 
tion of  Ga.  Const,  art.  4,  §  2,  ^4 
(Oiv.  Code,  §  5800),  are  not  material  in 
determining  whether  the  action  is  well 
brought  and  maintainable,  but  that  matter 
depends  upon  the  pleadings  and  evidence. 
Trust  Company  of  Georgia  v.  State,  109  Ga. 
736,  35  S.  E.  323,  48:  520 

52.  The  fact  that  a  person  boarded  a  car 
for  the  purpose  of  making  a  test  case  as  to 
the  amount  of  fare  demandable  will  not 
effect  his  right  to  maintain  an  action  for  an 
unlawful  ejection  after  tendering  the  fare 
lawfully  due.  Adams  v.  Union  R.  Co.  21  R. 
I.  134,  42  Atl.  515,  44:  273 

53.  A  malicious  motive  in  instituting  a 
valid  cause  of  action  against  another  is  no 
defense.  Jacobson  v.  Van  Boening,  48  Neb. 
80,  66  N.  W.  993,  32:  229 
Right  of  other  person  generally. 

Heir  or  Legal  Representative  of  Infant,  see 

Infants,  47. 
In  Action  on  Contract,  see  Contracts,  832- 

8.34. 
In  Defense  of  Ultra  Vires,  see  Corporations, 

161. 
In  Eminent  Domain,  see  Eminent  Domain,  5 

6,  63,  213. 
Of  Insurer  to  Set  up  Bar  of  Limitations,  see 

Insurance,  133. 
See  also  Husband  and  Wife.  136. 

54.  It  is  no  defense  to  an  action  for  the 
purchase  price  of  a  contract  for  the  sale  of 
land,  that  another  than  the  assignor  was  the 
real   owner  of  such  contract,  when   the  as- 


signee received  a  valid  assignment.     Fergtt- 
son  V.  McBean,  91   Cal.  6.3,  27  Pac.  518, 

14:  65 

55.  The  right  of  the  owner  of  property  de- 
stroyed by  fire  to  recover  damages  from  an- 
other by  whose  fault  it  was  burned  is,  a» 
against  the  defendant,  unaffected  by  the 
fact  that  he  may  have  already  received  full 
payment  for  his  loss  by  insurance,  and  that 
the  insifrer  is  entitled  to  be  subrogated  to 
the  claim.  Anderson  v.  Miller,  96  Tenn.  36, 
33  S.  W.  615,  31 :  604 

56.  The  franchise  of  a  company  operating 
an  electric  street  railway  with  an  assump- 
tion of  corporate  powers  cannot  be  assailed 
by  an  individual  in  a  suit  to  enjoin  him 
from  interfering  with  the  operation  of  the 
road.  Williams  v.  Citizens'  R.  Co.  130  Ind. 
71,  29  N.  E.  408,  15:  64 
Unconstitutionality  of  statute  as  to  other 

person. 

Plaintiff's  Right  to  Attack  Unconstitutional- 
ity of  Statute,  see  Parties,  11,  12. 

See  also  Attorneys.  36:  Building  and  Loan 
Associations,  89;  Insurance,  37;  License, 
133;  Mandamus,  208-210;  Statutes,  53- 
55. 

57.  A  question  of  the  unconstitutionality 
of  a  statute  as  to  other  corporations  cannot 
be  raised  by  a  railroad  company  as  to  which 
the  act  is  valid.  Pittsburgh,  C.  C.  &  St.  L. 
R.  Co.  v.  Montgomery,  152  Ind.  1,  49  N.  E. 
582,  69:  875- 

58.  A  railroad  company  cannot  complain 
that  a  statute  is  unconstitutional  in  dis- 
criminating against  its  employees  by  giving^ 
a  right  of  action  against  it  for  negligence- 
causing  the  death  of  any  person  who  is  not 
in  its  employ.  Louisville  Safety  Vault  &  T. 
Co.  V.  Louisville  &  N.  R.  Co.  92  Ky.  233,  17 
S.  W.  567,  14:571> 

59.  An  accident   insurance  companj'   can 
not  insist  on  the  invalidity  of  a  statute  for 
unconstitutional  discrimination  against  fire 
insurance  companies.     Fidelity  &  C.  Co.  v. 
Freeman,  48  C.  C.  A.  692,  109  Fed.  847, 

54:  680 
60-61.  The  unconstitutionality  of  a  stat- 
ute in  omitting  to  provide  for  compensation 
for  property  taken  or  injured  is  not  a 
ground  of  objection  to  any  person  except 
those  whose  property  is  affected  by  it. 
Prince  v.  Crocker,  166  Mass.  347,  44  N.  E. 
446,  32:  610 

62.  The  invalidity  of  a  provision  impairing; 
a  contract  between  tne  state  and  a  bridge 
company  for  the  construction  of  a  bridge  in 
a  statute  charging  the  burden  of  the  bridge- 
upon  a  city  and  towns  specially  benefited,, 
instead  of  upon  the  state,  will  not  avail  to 
relieve  the  city  and  towns  of  their  liability. 
— especially  after  a  settlement  between  the 
state  and  the  company.  State  ex  rel.  Bulke- 
ley  V.  Williams.  68  Conn.  131,  35  Atl.  24. 
421,  48:  465. 

63.  A  denial  of  the  constitutional  rights^ 
of  women  in  a  criminal  proceeding  against  a 
man  cannot  be  set  up  by  him  in  his  own 
behalf.  McKinney  v.  State,  3  Wyo.  719,  30 
Pac.  293,  16:  7ia 


ACTION  OR   Si;  IT,   II.    a— c. 


19 


II.  Union,    Choice,    or    Form    of   Remedies. 

a.  Kind ;  Name. 

As  to  Election  of  Remedies,  see  Election  of 
Remedies. 

64.  An  action  to  compel  specific  perform- 
ance of  a  contract  to  convey  real  estate  is 
one  in  personam.  Silver  Camp  Min.  Co.  v. 
Dickert,  31  Mont.  488,  78  Pac.  967,     67:  940 

65.  A  proceeding  to  set  aside  a  deed  for 
want  of  capacity  of  the  grantor  is  not  in 
rem.  Allred  v.  Smith,  135  N.  C.  4^3,  47  S. 
E.  597,  65:  924 

66.  An  action  for  wrongfully  appropriat- 
ing water  from  a  reservoir  created  by  plain- 
tiff's dam  is  one  in  tort.  Green  Bay  &  M. 
Canal  Co.  v.  Kaukauna  Water  Power  Co. 
112  Wis.  323,  87  N.  W.  864,  62:  579 

67.  The  name  by  which  an  action  brought 
to  establish  title  to  a  portion  of  a  railroad 
light  of  way  is  de&;gnated  is  immaterial  in 
(leteruiining  the  relief  to  be  afforded,  or 
whether  the  defense  of  prescription  is  avail- 
able, where  there  is,  imder  the  statute,  but 
one  form  of  civil  action,  the  character  of 
which  is  determined  by  the  substance  of  the 
complaint.  Southern  P.  Co.  v.  Hyatt.  1^52 
Cal.  240,  64  Pac.  272,  '     54:  522 

b.  Consolidation. 

As  Ground  for  Reversal,  see  Appeal  and  Er- 
ror, 855. 
See  also  Creditors'  Bul,  19,  32. 

.68.  A  consolidation  of  several  actions 
against  different  defendants  cannot  be  made 
under  Colo.  Civ.  Code,  §  20,  which  authorizes 
consolidation  of  causes  of  action  which 
might  have  been  joined  when  they  are  in  the 
same  court  and  '"between  the  same  parties." 
Smith  V.  Smith,  22  Colo.  480,  46  Pac.  128. 

34:  49 

69.  The  consolidation  of  two  creditors' 
bills  is  proper  where  each  is  seeking  to  ob- 
tain a  first  lien  on  the  property  of  the  same 
judgment  debtor,  the  one  filing  the  second 
bill  relying  for  success  upon  lack  of  good 
faith  in  the  former  bill  and  the  judgment  on 
which  it  was  founded;  and  it  is  immaterial 
that  the  parties  defendant  to  the  two  bills 
are  not  identical,  being  the  judgment  debtor 
only  in  the  first  bill,  and  sueh  debtor  and  the 
rival  claimant  in  the  second.  Russell  v. 
Chicago  Trust  &  Sav.  Bank,  139  111.  538,  29 
N.  E.  37,  17:  345 

c.  Splitting;   Successive  Suits. 

70.  A  judgment  for  a  part  of  an  entire, 
indivisible  demand,  all  of  which  is  due  when 
the  action  is  commenced,  is  an  election  to 
take  the  part  in  satisfaction  of  the  whole, 
and  it  estops  the  plaintiff  from  recovering 
the  residue.  Deweese  v.  Smith,  45  C.  C.  A. 
408.   106  Fed.  4.38,  66:971 

71.  A  judgment  for  a  part  of  an  entire, 
indivisible  demand  which  is  due  does  not 
estop  the  plaintiff  from  maintaining  another 
actioo  for  another  part  of  the  demand,  which 


becomes  due  subsequent  to   the  commence- 
ment of  the  first  action.  Id. 

72.  Where  a  railway  company  unlawfully 
constructs  its  road  in  a  public  street  so  as 
to.  interfere  with  the  private  rights  of  abut- 
ters, it  constitutes  a  continuing  trespass, 
for  which  successive  suits  for  damages  may 
be  brought  so  long  as  the  trespass  is  con- 
tinued, until  the  occupation  ripens  into  title 
by  prescription.  Lamm  v.  Chicago,  St.  P.  M. 
&  O.  R.  Co.  45  Minn.  71,  47  N.  W.  455, 

10:  268 

73.  A  recovery  in  an  action  for  damages 
arising  from  a  nuisance  consisting  in  the  un- 
lawful and  improper  use  which  a  railroad 
company  makes  of  its  tracks  in  a  city  street, 
being  limited  to  the  damages  sustained  be- 
fore the  bringing  of  the  suit,  does  not  pre- 
clude a  second  suit  for  subsequent,  damages 
if  the  use  is  continued.  Iron  Mountain  R. 
Co.  V.  Bingham,  87  Tenn.  522,  11  S.  W.  705. 

4:  622 
On  series  of  notes. 

74.  An  action  on  a  mortgage  securing 
notes  payable  at  different  times,  brought  be- 
fore some  of  the  notes  are  payable,  is  not 
a  bar  to  a  subsequent  action  on  the  latter 
notes.  .Anderson  v.  Pilgram,  30  S.  C.  499, 
9  S.  E.  5S7.  4:  205 
Interest  and  principal  of  note. 

75.  Where  one  guarantees  the  payment  of 
interest  on  a  note  so  long  as  any  part  of  the 
principal  thereof  remains  unpaid,  the  prom- 
ises to  pay  the  interest  and  to  pay  the  prin- 
cipal are  severable,  and  an  action  may  be 
maintained,  even  after  maturity  of  the  note, 
upon  the  promise  to  pay  the  interest,  with- 
out including  it  in  an  action  for  the  princi- 
pal debt.  King  v.  Bates.  149  Mass.  73,  21 
N.  E.  237,  -i:  268 
By  servant  wrongfully  dismissed. 

76.  Successive  actions  may  be  brought  by 
a  servant  wrongfully  discharged,  for  succes- 
sive deficiencies,  without  his  fault,  in  his 
earnings,  measured  by  the  instalment  of 
wages  that  he  would  have  earned  if  allowed 
to  perform  his  contract.  McMullan  v.  Dick- 
inson Co.  60  Minn.   156,   62  N.   W.   120. 

27:  409 

77.  One  dismissed  from  service  in  breach 
of  a  contract  to  employ  him  for  one  year 
at  a  certain  sum  per  week,  payable  weekly, 
can  maintain  but  one  action  for  the  breach, 
and  will  not  be  permitted  to  maintain,  a 
separate  action  for  each  weekly  instalment 
as  it  falls  due.  Olmstead  v.  Bach,  78  Md. 
132.  27  Atl.  501,  22:  74 
Rev'g  on  Rehearing  25  Atl.  343,  18:  53 
Against  stockholder. 

78.  Tlie  right  of  a  creditor  having  var- 
ious claims  against  a  corporation,  to  exact 
payment  from  a  stockholder,  is  not  such  a 
single  and  indivisible  demand  that,  by  plac- 
ing one  such  claim  in  judgment  against  the 
stockholder,  he  is  precluded  from  proceeding 
against  him  upon  the  others.  Manlev  v. 
Park,  68  Kan.  400,  75  Pac.  557.  66:*  967 

79.  A  judgment  in  favor  of  the  receiver  of 
an  insolvent  national  bank  for  the  recovery 
of  an  assessment  made  by  the  Comptroller 
of  the  Currency  upon  a  shareholder  does  not 
estop  him  from  maintaining  a  second  action 


20 


ACTION    OR  SUIT,   II.   d. 


against  the  same  shareholder  for  another  as- 
sessment which  had  not  been  made,  or  was 
not  due,  when  the  first  action  was  com- 
menced. Deweese  v.  Smith,  45  C.  C.  A.  408, 
106  Fed.  438.  66:  971 

For  elevated  railroad  in  streeL 

80.  A  single  recovery  for  all  damages, 
present  and  future,  may  be  had  by  an  abut 
ting  owner  against  one  constructing  a  rail- 
road in  the  street  in  front  of  his  property, 
although  the  structure  is  unlawful  and 
therefore  subject  to  abatement  at  any  time. 
Doane  v.  Lake  Street  Elev.  Co.  165  111.  510, 
46  N.  E.  520,  36:  97 
For  injuries  by  flooding. 

81.  Judgment  for  accrued  damages  only 
in  an  action  for  obstruction  of  water  by  a 
railroad  embankment  lawfully  built,  if 
neither  party  demanded  the  assessment  of 
permanent  damages,  will  not  be  a  bar  to  a 
future  action  for  permanent  damages.  Rid- 
ley V.  Seaboard  &  R.  R.  Co.  118  N.  C.  996. 
24  S.  E.  730,  32:  708 
Injuries  to  person  and  to  property. 

82.  Injuries  to  a  person,  and  injuries  to 
the  property  of  the  person  injured,  both  re- 
sulting from  the  same  tortious  act,  are  sep- 
arate items  of  damages  constituting  but  one 
cause  of  action.  King  v.  Chicago,  M.  &  St. 
P.   R.   Co.   80   Minn.    83,  82  N.   W.    1113, 

50:  161 
Injuries  to  man  and  wife. 

83.84.  A  recovery  for  his  own  personal  in- 
juries will  not  bar  a  subsequent  action  by 
a  man  to  recover  for  loss  of  the  society  and 
services  of  his  wife,  and  for  expense  in  ef- 
fec^^^ing  her  cure,  caused  by  the  same  negli- 
gent act  which  caused  his  own  injuries. 
Skoglund  V.  Minneapolis  Street  R.  Co.  45 
Minn.  330,  47  N.  W.  1071,  11:  222 

d.  Joinder. 

Of  Causes  in  Admiralty,  see  Admiralty,  10. 
For  Accounting  and  Final  Distribution,  see 

Executors  and  Administrators,  167. 
To    Make    up    Jurisdictional    Amount,    see 

Courts.  294,  295. 
Joinder  of  Parties,  see  Parties,  I.  b;   II.  b. 
For  Editorial  Notes,  see  infra,  III.  3. 

85.  Only  those  who  are  improperly  joined 
as  defendants  can  object  to  the  misjoinrier. 
Slegel  V.  Herbine,   148  Pa.  236,  23  Atl.  990, 

15:  547 

86.  Any  event  in  which  two  or  more  per- 
sons are  actors,  involving  a  right  which  may 
presently,  or  by  what  may  proximately  oc- 
cur in  respect  thereto,  be  violated,  creating 
an  actionable  wrong,  is  a  transaction  within 
the  meaning  of  a  statute  permitting  the 
joinder  in  one  complaint  of  two  or  more 
causes  of  action  "where  they  arise  out  of 
the  same  transivction."  Emerson  v.  Nas<h. 
124_Wis.  369.  102  X.  W.  921,  70:  326 

87.  When  a  contract  between  two  or  more 
persons  on  one  side  and  two  or  more  persons 
on  the  other  creates  a  situation  involvino 
presently  or  proximately  separate  rights  up- 
on one  side,  each  of  which,  with  a  violation 
thereof  by  tlie  other  side,  wo>ild  constitute 
a  complete  ground  of  complaint  for  judicial 
redress,  the   initial  circumstance — the  mak- 


ing of  the  contract — is  a  'transaction,"  with- 
in the  meaning  of  a  statute  permitting  the 
joinder  of  causes  of  action  arising  out  of  the 
same  transaction;  and  such  grounds  of  com- 
plaint, should  they  arise,  would  be  separate 
"causes  of  action  arising  out  of  the  same 
transaction,"  within  the  meaning  of  the  stat- 
ute. Id. 

88.  All  such  wrongs,  as,  in  the  regular 
course  of  events,  through  the  rights  violat- 
ed, have  such  proximate  relation  to  a  single 
transaction  that  it  may  legitimately  be  said 
they  arise  out  of  it,  are,  under  Wis.  Rev. 
Stat.  1898,  §  2647,  redressible  in  one  action, 
regardless  of  the  form  of  the  remedy  requi- 
site as  to  each,  providing  they  affect  all  the 
parties,  and  do  not  require  different  places 
of  trial.  Id. 

89.  Counts  in  case  and  trover  may  be 
joined.  Haves  v.  Massachusetts  Mut.  L. 
ins.  Co.  125'lll.  626,  18  N.  E.  322,         1:  303 

90.  A  cause  of  action  for  breadh  of  con- 
tract to  pay  for  a  machine,  and  one  for  tort 
for  forcibly  preventing  the  seller  from  re- 
gaining possession  of  the  machine,  may 
properly  be  joined  in  one  complaint  which 
seeks  merely  to  recover  the  purchase  price 
of  the  machine.  Craft  Refrigerating  Mach, 
Co.  V.  Quinnipiac  Brew/  Co.  63  Conn.  551,  29 
Atl.  76,  25:  856 

91.  A  complaint  asserting  rights  in  waters 
upon  one's  land,  and  also  claiming  the  same 
rights  under  a  contract,  does  not  combine 
inconsistent  causes  of  action.  Case  v.  Hoff- 
man, 84  Wis.  438,  54  N.  W.  793,  20:  40 

92.  A  note  for  principal,  and  one  for  inter- 
est, signed  by  the  same  maker  and  secured 
by  the  same  mortgage,  may  be  enforced  in 
one  a<'tion.  Kleis  v.  McGrath,  127  Iowa,  4^9, 
103N.  W.  371,  69:260 
Suits  for  injunction. 

92a.  The  practice  of  including  in  one  in- 
junction several  separate  seizures  made  by 
creditors  between  whom  there  is  no  privit'y 
is  not  to  be  encouraged,  and  can  be  sanc- 
tioned only  in  highly  exceptional  cases, 
where  evidently  no  inconvenience  can  be  oc- 
casioned to  the  defendants  in  injunction, 
and  no  complication  can  possibly  arise. 
Speyrer  v.  Miller,  108  La.  204,   32  "So.  524, 

61:781 
Legal  and  equitable  actions. 
Liberal   Construction   of  Statute  as  to,  see 

Statutes,  517. 
Action  for  Damages  and  for  Reformation  of 
Instrument,  see  Trial,  70. 

93.  Different  causes  of  action,  whether 
legal  or  equitable,  may  be  imited  in  the  same 
petition,  when  connected  with  the  same  sub- 
ject of  action;  and  in  an  action  for  a  nui- 
sance plaintiff  may  ask  for  damages  and  for 
an  injunction  to  restrain  its  continuance. 
Paddock  v.  Somes,  102  Mo.  226,  14  S.  W.  746, 

10:  254 

94.  That  the  statutes  require  an  issue  as 
to  the  validity  of  a  will  to  be  tried  by  jury, 
while  the  question  of  fraud  in  the  procure- 
ment of  a  deed  may  be  tried  by  the  court, 
will  not  prevent  an  attempt  to  set  aside 
both  instruments  bv  one  bill  in  equitv.  Wil- 
liams V.  Crabb,  54  C.  C.  A.  213,  117  Fed.  193. 

59:  425 


ACTION  OR  SUIT,   II.   e.  III. 


2T 


95.  Consistent  causes  of  action  in  equity 
arising  out  of  the  same  transaction,  which 
may  be  joined,  are  disclosed  by  a  complaint 
against  directors  of  a  corporation  and  its  at- 
torney to  recover  from  the  directors  a  sum 
which  they  had  received  for  turning  their 
offices  over  to  third  persons,  another  sum  re- 
ceived for  surrender  of  their  stock  in  excess 
of  its  value,  and  damages  for  losses  result- 
ing from  a  conspiracy  to  wreck  the  corpora- 
tion, as  well  as  to  set  aside  a  contract 
fraudulently  made  with  the  attorney  in  fur- 
therance of  the  conspiracy.  Boswft^-th  v.  Al- 
len, 168  N.  Y.  157,  61  N.  E.  163,         55:  751 

96.  A  single  cause  of  action  upon  which 
but  one  action  can  be  maintained  under 
statutes  abolishing  the  distinctions  between 
actions  at  law  and  suits  in  equity,  and  re- 
quiring a  complaint  to  contain  a  plain  and 
concise  statement  of  the  facts  constituting 
each  cause  of  action,  and  to  demand  the 
judgment  to  which  plaintitf  supposes  himself 
entitled,  is  presented  by  the  encroachment  of 
a  permanent  wall  upon  another's  property, 
the  removal  of  which  cannot  be  effected  by 
legal  process,  but  requires  the  aid  of  equit- 
able remedies.  Hahl  v.  Sugo,  169  N,  Y.  109, 
62  N.  E.  135,  61:  226 

97.  A  claim  for  the  reformation  of  a  deed, 
and  one  for  damages  for  breach  of  cove- 
nants of  the  deed  as  amended,  may  be  joined 
in  the  same  action,  under  Conn.  Gen.  Stat. 
§  877,  providing  that  legal  and  equitable 
remedies  may  be  enforced  in  one  action. 
Butler  V.  Barnes,. 60  Conn.  170,  21  Atl.  419, 

12:  273 

e.  Multifariousness. 

98.  All  parties  to  a  suit  need  not  have 
an  interest  in  every  matter  contained  there- 
in; it  is  sufficient  if  each  party  has  an  inter- 
est in  some  material  matters  in  the  suit, 
and  they  are  connected  with  the  others. 
Williams  v.  Crabb,  54  C.  C.  A.  213,  117  Fed. 
193,  59:  425 

99.  A  bill  is  not  multifarious,  although 
the  claims  of  the  several  complainants  arose 
under  difTerent  contracts,  if  they  are  pursu- 
ing, upon  the  same  grounds  and  for  the  same 
reasons,  a  common  trust  fund  in  which  they 
are  jointly  interested.  Langdon  v.  Central 
R.  &  Bkg.  Co.  37  Fed.  449.  2:  120 

100.  A  bill  is  not  multifarious  because  a 
large  number  of  insurance  companies  join 
in  it  to  set  aside  an  award  against  them  all 
upon  a  joint  submission,  for  misconduct  of 
the  arbitrators.  Hartford  F.  Ins.  Co.  v. 
Bonner  Mercantile  Co.  44  Fed.  151,      11:  623 

101.  Joinder  of  causes  of  action  for  set- 
ting aside  a  deed  and  a  will  does  not  render 
the  bill  multifarious,  where  both  grow  out  of 
the  same  sxibject-matter.  Williams  v. 
Crabb,  54  C.  C.  A.  213,  117  Fed.  193, 

59:  425 

102.  A  bill  to  subject  real  estate  of  the 
three  members  of  a  firm  to  the  payment  of 
one  judgment  against  the  firm,  and  one 
against  two  partners,  is  not  multifarious  as 
to  the  third  partner,  since  he  is  interested  in 
having  the  real  estate  of  his  partners  sub- 
jected   to   the   payment   of   the   firm   debts 


rather    than    to    their    own.      Alexander   v. 
Alexander,  85  Va.  353,  7  S.  E.  335,       1 :  125 

103.  A  single  bill  in  equity  by  creditors  of 
an  insolvent  corporation  cannot  be  sustained 
to  reach  unpaid  stock  subscriptions,  to  re- 
cover funds  transferred  by  it  to  preferred' 
creditors,  and  to  administer  an  assignment 
by  the  corporation  for  benefit  of  creditors. 
O'Bear  Jewelry  Co.  v.  Volfer,  106  Ala.  205, 
17  So.  525,  28:  707 

104.  A  cause  of  action  for  damages  to  a 
retail  coal  dealer  by  reason  of -a  combina- 
tion between  wholesalers  and  favored  re- 
tailers to  drive  other  retailers  out  of  busi- 
ness cannot  be  united  in  the  same  complaint 
with  one  by  him,  on  behalf  of  himself  and  all 
other  dealers  similarly  injured,  to  enjoin 
the  illegal  acts,  under  a  statute  providing 
that  causes  of  action  in  order  to  be  united 
must  affect  all  the  parties  to  the  action. 
Hsiwarden  v.  Youghiogheny  &  L.  Coal  Co. 
Ill  Wis.  545,  87  N.  W.  472,  55:  828 

105.  A  bill  by  several  patrons  of  a  tele- 
phone company  having  distinct  and  separate 
contracts  for  service,  to  enforce  the  com- 
pany's duty  under  a  municipal  ordinance  as 
to  rates  for  service,  will  not  be  dismissed  for 
multifariousness,  although  the  facts  alleged 
in  connection  with  the  various  contracts  are 
somewhat  variant,  where  there  is  a  common 
interest  in  enforcing  the  duty,  and  no  diffi- 
culty or  embarrassment  will  be  created  in 
decreeing  the  relief  which  the  bill  seeks. 
Charles  Simon's  Sons  Co.  v.  Maryland 
Teleph.  &  Teleg.  Co.  99  Md.  141,  57  Atl.  193, 

63:  727 

106.  A  bill  is  not  multifarious  which  seeks 
to  recover  the  use  of  a  church  building,  be- 
cause in  it  are  united  the  claims  of  a  pre- 
siding elder,  entitled  to  use  the  church  for 
holding  quarterly  conferences,  of  the  pastor, 
entitled  to  hold  religious  services  therein, 
and  of  members  of  the  congregation,  enti- 
tled to  worship  therein.  Fuchs  v.  Meisel,  102 
Mich.  357,  60  N.  W.  773,  32:  92 


ni.  Editorial  Notes. 

§  I.  Generally. 

Where  there  is  a  risrht  there  is  a  remedy. 
.4:  295.» 

Effect  of  statute  to  defeat  or  preserve;  ef- 
fect of  repeals.     14:  721. 

Effect  of  repeal  and  re-enactment  of  stat- 
ute on  pending  suit.  5: 
31o,» 

Effect  upon  suit,  of  discharge  from  arrest 
of  one  arrested  while  at- 
tending court.     19:  560. 

Statutory  authoritv  to  justify  injury.     10: 

2io.» 

Effect  of  collusion.     12:  815.* 
Proceedings  in,  on  holidaj's.     19:  319. 
Right    to    plead    inconsistent    defenses    in. 

48:  177. 
Loss  of  cause   of  action  by   lapse   of  time 

pending  suit.     18:  211. 
Privileges    of    members    of    Congress    and 

state  legislature  from  suit. 

23:632. 


22 


ACT  OF  BANKRUPTCY;   ACT   OF  GOD. 


Privilege  of  consul  from  suit.    45:  579. 

§  2.  Conditions. 

Necessity  and  effect  of  demand  and  refusal 
as  a  condition  of  trover. 
1 :  305.* 

Prerequisites  to  suit  against  national  bank 
for  twice  amount  of  in- 
terest paid.    56:  704. 

Request  of  corporation  to  sue  as  condition 
of  suit  bv  stockholder.  9: 
656.» 

§  3.  Joinder. 

Of  causes  of  action  generally.  1:125;*  11: 
222.* 

Whether  injuries  both  to  person  and  to 
property  constitute  but 
one,  or  more  than  one, 
cause  of  action.  50:  161. 
Rule  basing  cause  of  action  on  the,  in- 
jury. 50:  161. 
Rule  basing  cause  of  action  on  the  act 

causing  injury.     50:  162. 
Effect  of  statutes  as  to  joinder  of  causes 

of  action.    50:  164. 
Effect  of  injury  in  different  capacities, 
or  to  different  parties.  50: 
107. 

§  4.  Stay. 

Until  former  costs  are  paid.     11:  620.* 

Effect  of  stay  laws  as  impairment  of  obli- 
gation of  contract.  1 : 
358.* 

Of  proceedings  to  ent'one  mortgage  for  part 
of  mortgage  debt.    37:  749. 


ACT  OF  BANKRUPTCY. 
What  is,  see  Bankruptcy,  6-9. 


ACT  OF  GOD. 


Inevitable  Accident,  see  also  Accident. 
Prejudicial  Instruction  as  to.  see  Appeal  and 

Error.  1020,  1021. 
Carrier's   Liability  for  Loss  of  Baggage  by, 

see  Carriers.  077.  678.  087,  688. 
Currici's  Liability  for  Loss  of,  or  Injury  to, 

Freight  bv,  .sec  Carriers,  771,  776.  827- 

829. 
As  (; round  for  Nonperformance  of  Contract, 

see  Contracts.    IV.  b.  2:   Sale.  117.    118. 
Injury  by  Electricity  During  Thunder  ytorm, 

see  Elcctri(ilv.'22.  44.  47-4!t;  Trial,  470, 

472.  473,  475.  479. 
Presumption  as  to.  see  Evidence,  486. 
Necessity  of  Pleading  see  Pleading,  479. 
As   Proximate  Cause,  see   Proximate  Cause, 

11. 
Question    for  Jury  as  to,   see  Trial,  289. 
Restoring  to  Old  Channel  Water  Diverted  bv, 

>-.•<■  Waters.  275,  276. 
Inipo'^sil.ility    of   Performance   of   Condition 

.■^ubscfiiicnt  by,  see  Wills.  302. 

1.  To  excuse  nonperformance  of  a  contract 
on  the  ground  of  an  act  of  God  there  must 
he  no  mixture  of  negligence  or  want  of  dili- 
gence, judgment,  or  skill  on  the  part  of  the 


promisor.    Smith  v.  North  American  Transp. 
&  T.  Co.  20  Wash.  580,  56  Pac.  372,      44:  557 

2.  A  loss  or  injury  is  due  to  the  act  of 
God  where  it  is  occasioned  exclusively  by 
natural  causes  such  as  could  not  be  pre- 
vented bv  human  care,  skill,  and  foresight. 
Wald  V.  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  162 
111.  545,  44  N.  E.  888,  35:  356 

3.  Nothing  less  than  such  a  fortuitous 
gathering  of  circumstances  as  prevents  the 
performance  of  a  duty,  and  such  as  could 
not  have  been  foreseen  by  the  exercise  of 
reasonable  prudence,  or  overcome  by  the 
exercise  of  reasonable  care  and  diligence, 
constitutes  an  act  of  God  which  will  excuse 
the  discharge  of  a  dutv.  Southern  P.  Co.  v. 
Schoer,   52   C.   C.   A.   268.    114  Fed.   466, 

57:  707 
Fire  of  unknown  origin. 

4.  The  burning  of  a  hotel  cannot  be  at- 
tributed to  an  irresistible  superhuman  cause, 
where  the  origin  of  the  lire  is  not  shown  ex- 
cept that  it  broke  out  in  a  room  containing 
nothing  but  batteries  which  supplied  the 
place  with  electricity.  Fav  v.  Pacific  Im- 
prov.  Co.  93  Cal.  253,"  26  Pac.  1099,  16:  188 
Wind. 

5.  An  injury  is  not  attributable  to  an  act 
of  God,  but  to  neglect,  where  it  is  caused  by 
the  fall  of  a  sign  in  a  wind  such  as  might 
be  expected  in  the  regular  course  of  the  sea- 
sons, St.  Louis,  I  M.  &  S.  R.  Co.  v.  Hopkins, 
54  Ark.  209,  15  S.  W.  610.  12:  189 
Flood. 

Presumption   of  Negligence  in  Case  of,  see 

Evidence,  486. 
See  also  infra.  Editorial  Note. 

6.  A  flood  which  no  human  power  could 
stay  and  no  foresight  or  prudence  anticipate 
is  an  act  of  God  Which  will  relieve  a  carrier 
who  is  free  from  negligence  from  liability 
for  damage  by  the  flood  to  goods  in  his 
custwlv.  Smith  v.  Western  R.  of  Ala.  91 
Ala.  4.-).5,  8   So.  754,  11:  619 

7.  An  unprecedented  flood,  by  reason  of 
which  the  baggage  of  a  passenger  is  swept 
awav.  is  an  act  of  God.  Wald  v.  Pittsburg, 
C.  C.  &  St.  L.  R.  Co.  162  111.  545,  44  N.  E. 
888,  35:  350 

8.  TFie  .Johnstown  flood  of  1889.  which  was 
of  such  extraordinary  character  that  a  party 
was  not  bound  to  anticipate  or  provide 
against  it.  and  which  came  with  such  sud- 
denness and  power  that  escape  from  it  was 
impossible,  was  an  inevitable  accident  or  act 
of  GikI  in  respect  to  tlie  loss  of  baggage  on 
a  railroad  train,  where  utmost  care  was  ex- 
ercised by  the  agents  and  employees  of  the 
carrier  to  escape  the  dangers  of  which  they 
had  knowledge,  or  jeasonable  ground  to  ap- 
prehend. Long  V.  Pennsylvania  R.  Co.  147 
Pa.  .34.3,  23  Atl.  459,  "  14:  741 

9.  The  loss  of  whisky  on  a  train  wrecked 
by  a  flofKl  cannot  be  attributed  to  an  in- 
evitable accident.  So  as  to  relieve  the  car- 
rier from  liability,  where  the  whisky  was 
not  destroyed  by  the  flood,  but  part  of  it  was 
stolen  without  any  attempt  of  the  trainmen 
to  prevent  it.  and  the  remainder  destroyed 
by  a  volunteer  guard  of  citizens  in  order  to 
prevent  it  from  falling  into  the  hands  of 
the  dangerous  class  of  men  who  were  deter- 


ACTRESS— ADMIRALTY,  I. 


23 


/mined  to  capture  it.     Lang  v.  Pennsylvania 
R.  Co.  154  Pa.  342.  26  Atl.  370,  20:  360 

10.  An  extraordinary  and  unprecedented 
storm,  flood,  or  other  unavoidable  casualty 
•caused  by  the  hidden  forces  of  nature,  un- 
known to  common  experience,  and  which 
■could  not  have  been  reasonably  anticipated 
b}'  tiiat  degree  of  engiueering  slcill  and  ex- 
j)ericnce  required  in  the  prudent  construc- 
tion of  a  railroad,  must  be  regarded  as  an 
unavoidable  accident,  or  act  of  God,  which 
will  uot,  by  causing  a  washout  of  a  railroad 
■culvert,  make  the  railroad  company  liable 
for  the  damages.  Libby  v.  Maine  C.  E,.  Co. 
85  Me.  34,  26  Atl.  943,'  20:  812 

11.  An  extraordinary,  unprecedented  storm 
which  came  suddenly  and  lasted  about  two 
hours,  causing  the  washout  of  a  railroad  cul- 
vert which  was  insufficient  to  carry  off  one 
third  of  the  water  which  fell,  although  it 
had  proved  sufficient  for  more  than  forty 
years,  is  to  be  regarded  as  an  act  of  God. 

Id. 

12.  Overflow  of  water  obstructed  by  a 
•dam  across  an  abandoned  river  bed  which 
was  lawful  when  built  is  to  be  laid  to  the 
account  of  Providence,  and  not  to  the  hand 
•of  man,  if  it  would  not  have  happened  ex- 
cept for  the  filling  up  of  the  new  channel  of 
the  river  bv  natural  causes.  Pavne  v.  Kan- 
sas City.  St.  .J.  &  C.  B.  R.  Co.  li2Mo.  6.  20 
S.  W.  322,  17:  628 

Editorial  Notes. 

What  constitutes.     11:  615.* 
Flood  as.     11:  615. 

As  affecting  rights  in  watercourse.     30:  820. 
As  defense  to  carrier.     11:  615.* 
Effect  of,  on  carrier's  contracts,  law  govern- 
ing.    63:  531. 


-♦<-♦- 


ACTRESS. 


Inducing  Breach  of  Contract  by,  see  Master 
and  Servant.  50. 


ACTUARY. 
Powers  of,  see  Corporations,  235. 


ADDITIONAL  SERVITUDE. 
See  Eminent  Domain,  IV.,  V.  §  19. 


ademptic:l 


Parol  Evidence  as  to,  see  Evidence,  1121. 
See  also  Wills,  III.  1;  V.  §  29. 


ADJOINING  OWNER. 

Injury    to    Property    of,    by    Blasting,    see 
Blasting.  6,  9,  14. 


Boundaries  Between,  see  Boundaries,  II. 

Discharge  of  Water  from  Roof,  see  Build- 
ings, 41. 

Injury  to  Lateral  Support,  see  Lateral  Sup- 
port. 

Rights  in  Party  Wall,  see  Party  Wall. 

Right  of  Action  for  Erection  of  City  Prison, 
see  Prison,   3. 

See  also  Abutting  Owner. 


ADJOURNED  TERM. 

Of  Court,  see  Courts,  312. 

♦*-♦ • 

ADJOURNMENT. 

See  Continuance  and  Adjournment. 


ADJUSTER. 


Waiver  or  Estoppel  by  Acts  of,  see  Insur- 
ance,  788,   789,   874,  882-888. 


ADJUSTMENT. 


Of  Claim  on  Insurance  Policy,  Conflict  oif 
Laws  as  to,  see  Conflict  of  Laws,  78, 
79. 


ADMINISTRATION. 


Of  Decedent's  Estate,  see  Executors  and  Ad- 
ministrators. 


ADMINISTRATOR  AD  LITEM. 

See  Trusts,  108. 


ADMIRALTY. 


I.  Jurisdiction. 
II.  Practice. 
III.  Editorial  Notes. 

Bond  for  Vessel,  see  Appeal  and  Error,  1267, 

1268. 
Application  of  Doctrine  of  Last  Clear  Chance 

in  Admiralty  Case,  see  Negligence,  299. 
Release   of    Sureties   in,   see    Principal   and 

Surety,  30. 


I.  Jurisdiction. 

Of  State  Courts  on  Bond  to  Stay  Proceed- 
ings, see  Courts,  438,  439. 
For  Editorial  Notes,  see  infra,  III.  §  2. 


24 


ADMIRALTY.   IL,  lU. 


1.  The  United  States  courts  as  courts  of 
admiralty  have  jurisdiction  of  all  cases  of 
admiralty  cognizance  when  the  thing  or  par- 
ties are  within  the  reach  of  their  process, 
without  reference  to  the  nationality  of 
either.  The  City  of  Carlisle,  14  bawy.  179, 
39  Fed.  807,  5:  52 

2.  Waters  of  a  river  which  can  be  used  by 
vessels  only  for  the  transportation  of  per- 
sons and  property  between  different  places 
in  the  same  state  are  not  within  the  mari- 
time jurisdiction  of  the  United  States.  Com. 
V.  King,  150  Mass.  221,  22  N.  E.  905,  5:  536 
Injuries  by  vessel  to  bridge. 

3.  Admiralty  has  no  jurisdiction  of  an  in- 
jury to  a  swing  bridge  turning  on  its  center, 
which  rests  upon  a  stone  pier  constructed 
upon  the  bed  of  a  river,  caused  by  vessels 
navigating  the  river.  The  Curtis,  The  Cam- 
den, and  The  Welcome,  37  Fed.  705,      3:  711 

4.  A  state  statute  creating  a  lien  for  all 
injuries  done  by  vessels  to  persons  or  prop- 
erty cannot  give  jurisdiction  in  admiralty 
for  injuries  the  consummation  and  substance 
of  which  are  on  the  land.  Id. 
Contracts  as  to  freight. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

5.  Admiralty  has  jurisdiction  of  a  libel 
in  personam  for  breach  of  a  contract  to  fur- 
nish freight  to  be  carried  by  an  ocean  trans- 
portation line  at  about  a  certain  time, 
without  specifying  the  vessel.  Baltimore 
Steam  Packet  Co.  v.  Patterson,  45  C.  C.  A. 
575,  106  Fed.  736,  66:  193 

6.  The  admiralty  and  maritime  jurisdic- 
tion of  the  United  States  courts  extends  to 
controversies  arising  out  of  contracts  for  the 
shipment  of  merchandise  upon  the  high  seas 
between  ports  of  the  same  state.  Oowden  v. 
Pacific  Coast  S.  S.  Co.  94  Cal.  470,  29  Pac. 
873,  18:  221 
Death. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

241. 
See  also  infra,  12. 

7.  A  state  statute  giving  right  of  action 
for  death  by  negligence  is  applicable  to  a 
death  occurring  on  the  waters  of  Lake  Mich- 
igan, more  than  three  miles  from  the  shore 
of  such  state,  and  may  be  enforced  in  a  Fed- 
eral court  of  admiralty.  Bigelow  v.  Nicker- 
son,  .34  U.  S.  App.  261,  17  C.  C.  A.  1,  70  Fed. 
113,  30:  336 

8.  A  court  of  admiralty  has  jurisdiction  of 
a  suit  by  personal  reprfisentatives  of  a  pas- 
senger killed  by  collision  between  vessels, 
under  a  state  statute  giving  a  right  of  ac- 
tion for  death  by  negligence,  as  the  tort  is 
maritime.  The  Willamette,  44  U.  S.  App. 
26.  96.  70  Fed.  874,  72  Fed.  79,  18  C.  C.  A. 
.366.  373,  31 :  715 

Bigelow  V.  Nickerson,  70  Fed.  113,  34  U. 
S.  App.  261,  17  C.  C.  A.  1,  30:  336 


Effect  of  Instituting  Proceedings  to  Limit 
Liability,  see  Election  of  Remedies,  39. 

9.  An  affidavit  on  behalf  of  respondents 
cannot  be  considered  on  a  hearing  on  an  ex- 
ception to  a  libel.  Prince  Steam  Shipping 
Co.  V.  Lehmann,  39  Fed.  704,  5:  464 

10.  The  joinder  of  causes  of  suit  not 
enumerated  in  admiralty  rules  12  to  20  in- 
clusive is  not  governed  thereby,  but  by  rule 
46;  and  where  the  facts  in  a  case  establish 
a  liability  against  the  master  and  a  lien  on 
the  s-hip  for  the  same  claim,  such  liability 
and  lien  may  be  enforced  in  one  libel.  The 
City  of  Carlisle,  14  Sawv.  179,  39  Fed.  807, 

5:  52 

11.  Recovery  for  personal  injuries  or  death 
due  to  collision  cannot  be  had  by  libellants 
intervening  after  the  vessel  has  been  re- 
leased on  stipulation  under  the  original  libel. 
The  Willamette,  44  U.  S.  App.  26.  96,  70  Fed. 
874,   72   Fed.   79,   18   C.  C.   A.    366,  373, 

3U715 

12.  By  the  general  maritime  law  as  ad- 
ministered by  the  admiralty  courts,  no  re- 
covery can  be  had  for  a  death  by  wrongful 
act.  Rundell  v.  Compagnie  Generale  Trans- 
atlantique,  40  C.  C.  A.  625,  100  Fed.  655, 

49:  92 


II.  Practice. 

On  Appeal,  see  Appeal  and  Error,  126. 
Apportionment  of  Damages  in,  see  Damages, 
669. 


III.  Editorial  Notes. 

§  I.  Generally. 

Limit  of  liability  on  bond.    55:  395. 

Conclusiveness  of  sentence  of  foreign  court 

of  admiralty.     20:  668. 
Imprisonment  under  orders  of  court  in,  as 
imprisonment      for      debt. 
34:  664. 
State   statute   creating   lien   on   vessel.      1: 

505.* 
Lien  of  decree  in  admiralty.     47:  480. 
§  2.     Jurisdiction. 
Generally.    5:  684.* 

Admiralty  jurisdiction  of  contracts.    66:  193. 
Antiquity   and   original    jurisdiction   of 

court.     66 :  193. 
The  acts  of  Richard  II.  and  Henry  IV. 

66:  194. 
The  compromises  of  1575  and  1632.    66: 

195. 
Jurisdiction   which   common-law   courts 
permitted     admiralty     to 
exercise.     66:  196. 
No  jurisdiction  of  things  done   on 

land.     66:  196. 
Within  botly  of  county.     66:  198. 
Application  of  above  rules  to  par- 
ticular contracts.     66:  198. 
Exceptions  to  rules.     66:  201.    . 
Jurisdiction  of  things  done  at  sea. 

66:   206. 
Prohibition  must  be  sought  prompt- 
ly.    66:207. 
Summary     of     common-law     view. 
66:  207. 
The  English  act  of  1840.     66:  208. 
The  English  act  of  1861.     66:  209. 
Admiralty    jurisdiction    in    the    United 
States.     66:  211. 


ADMISSIONS— ADVANCEMENTS. 


25 


On  what  founded.     66:  211. 
Scope  of  jurisdiction.     66:  215. 
Illustrations    of   exercise    of   juris- 
diction.    66:  216. 
Contracts  for  building  and  out- 
fitting ships.     66:  216. 
Charter    parties    and    carriage 

contracts.     66:  223. 
Contracts  for  services  in  use  or 
operation    of    vessel.     66: 
226. 
Contracts    of    stevedores    and 

watchmen.     66:  229. 
Contrnets  to  assist  vessel.     66: 

232. 
Bottomry,  hypothecation,  mort- 
gage.    66:  233. 
Insurance     and     average.     66: 

234. 
Partnership,      trust,     account- 
ing.    66:  235. 
Contracts  leading  to  maritime 

contract.      66:  236. 
Other  contracts.     66:  236. 
Contracts    between    foreigners. 
66:  238. 
Effect  of  form  of  action.     66:  238. 
Jurisdiction  and  powers   of  consul  in  prize 

cases.     45:  495. 
Jurisdiction  and  powers  of  consul  as  to  dis- 
abled vessels.     45:  495. 
Jurisdiction   and  powers  of  consul  with  re- 
spect to  seamen.     45:  486, 
488,  493. 


ADMISSIONS. 


In  Agreed  Statement  of  Facts,  see  Agreed 
Case,  4. 

Of  Attorneys,  see  Attorneys,  I.  a. 

On  Application  for  Continuance.  Effect  of, 
see  Continuance  and  Adjournment,  TV. 

As  to  Invalidity  of  Statute,  see  Courts,  492. 

Estoppel  by,  see  Estoppel,  III.  e. 

Oral  Evidence  of,  see  Evidence,   782. 

As  Evidence,  see  Evidence,  IX. 

Attempt  to  Bribe  Witness  as,  see  Evidence, 
1906. 

By  Guardian  of  Minor,  see  Infants,  102. 

By  Pleading  or  Failure  to  Plead,  see  Plead- 
ing,  I.   m. 

By  Demurrer,  see  Pleading,  VII.  e. 

Of  Counsel,  see  Trial,  39. 

See  also  Stipulation. 

#  »  » 


ADOPTED  STATUTE. 
Construction  of,  see  Statutes,  II.  c. 
■♦*» 

ADOPTION. 

Of  Constitution,  see  Constitutional  Law,  I. 

a,  1. 
Inheritance  by  or  through  Adopted  Children, 

see  Descent  and  Distribution,  I.  d. 


Conclusiveness  of  Effect  of  Adoption  in  Oth- 
er State,  see  Judgment  362-365. 

Of  Child,  see  Parent  and  Child,  III. 

Revocation  of  Will  by,  see  Wills,  76-79. 

Abatement  of  Legacies  on  Subsequent 
Adoption,  see  Wills,  219. 


ADULTERATION. 


Of    Milk,    see    Constitutional    Law,     1064; 
Food,  4. 


♦  *» 


ADULTERY. 


As  Justification  for  Assault  by  Husband,  see 

Assault   and  Battery,  34. 
Of     Indian,     Jurisdiction     of     Offense,     see 

Courts,  453. 
Solicitation  to  Commit,  see  Criminal  Law, 

44. 
As  Affecting  Right  to  Claim  Widow's  Share, 

see  Descent  and  Distribution,  53. 
As    Ground    for    Divorce,    see    Divorce    and 

Separation,  IV.;  IX.  §  11. 
As  Defense  in  Divorce  Suit,  see  Divorce  and 

Separation,  48-51;  Pleading    541. 
Condonation   of,    as   Ground   for  Review   of 

Divorce  Decree,  see  Review,  10. 
As  Affecting  Alimony,  see  Divorce  and  Sepa- 
ration, 88,  89. 
Effect  of   Divorce   for,   on   Wife's   Property 

Rights,  see  Divorce  and  Separation,  102. 
As  Affecting  Dower  Right,  see  Dower,  49-52. 
Evidence  of,  see  Evidence,  1596,  1918,  2284; 

Witnesses,   192. 
Reducing  Degree  of  Homicide,  see  Homicide, 

28. 
As  Defense  to  Crime  of  Abandoning  Wife, 

see  Husband  and  Wife,  240. 
Dismissal  of  School  Superintendent  for,  see 

Schools,  56. 

A  divorce  after  the  finding  of  an  indict- 
ment for  adultery  is  no  bar  to  further  pros- 
ecution of  the  indictment,  although  the  stat- 
ute says  that  no  prosecution  for  adultery 
can  be  commenced  but  on  the  complaint  of 
the  husband  or  wife,  since,  after  proceedings 
are  once  commenced,  they  may  be  carried  on 
without  further  action  on  the  part  of  the 
one  who  commenced  them.  State  v.  Russell, 
90  Iowa,  569,  58  N.  W.  915,  28:  195 

Editorial  Notes. 

Solicitation  to.    25 :  438. 

Injunction  against  enforcing  contracts  for 
illicit  intercourse.  48: 
844. 

Necessity  of  proof  of  marriage  in  prosecu- 
tion for.     68:  44. 

Insanity  as  affecting.     34:  162. 


ADVANCEMENTS. 


Parol   Evidence   as   to,  see   Evidence,    1121, 
1151.  1209. 


26 


ADVANCES— ADVERSE  POSSESSION,  I.    a. 


Evidence  to  Rebut  Presumption  of,  see  Evi- 
dence, 2014. 

Interest  on.  see  Interest,  52-54. 

Effect  of  Release  by  Part  of  Children  Re- 
ceiving, see  Release,  7. 

Enforcement  of  Contract  for,  see  Specific 
Performance,  31,  52. 

To  Adeem  Legacy,  see  Wills,  447. 

1.  The  net  amount  received  on  life-insur- 
ance policies  after  the  death  of  the  insured 
is  the  amount  which  can  be  charged  as  an 
advancement  to  the  child  of  the  insured, 
who  receives  it.  Cazassa  v.  Cazassa.  92 
Tenn.   573,  22  S.  W.  560,  20:  178 

2.  Insurance  taken  out  by  a  father  in  the 
name  of  a  child,  or  in  his  own  name  and 
transferred  to  the  child,  constitutes  an  ad- 
vancement for  which  the  child  must  aceouTit 
in  the  settlement  of  the  father's  estate.    Id. 

3.  A  conveyance  to  minors  at  the  request 
of  their  father,  who  purchases  the  property, 
constitutes  an  advancement,  although  he  re- 
mains in  possession  until  his  death,  and 
erects  a  brick  house  on  the  land.  Rhea  v. 
Baglev.  63  Ark.  374.  38  S.  W.   1039,     3G:  86 


Editorial  Notes. 


12: 


Doctrine    of     advancements     to    heirs. 
5(i6.* 

Distinction  between  advancement  and  gift. 
12:  567.* 

Effect  of,  to  create  debt.     12:  569.* 

Effect  of.  as  ademption  of  legacy.  1:  203;* 
12:569.* 

Int<'rest  on,  or  to  equalize.     14:  716. 

Priority  as  between  mortgages  for  advances 
and  mechanics'  liens.  14: 
307. 

Admissibility  of  parol  evidence  to  show  an 
advancement  as  considera- 
tion for  a  deed.     20:  108. 

Right  of  one  receiving  advancement  and  ex- 
ecuting release  of  interest 
in  estate  to  share  in  after- 
acquired  property.  65: 
578. 
Effect  of  release  on  descendants  of  de- 
ceased releasor.  65:  582. 
Release  of  interest  of  married  wonum 
or  infant.     l>'^:  583. 

Maritime  liens  for.     70:  ;5(i7.  414.  439. 


ADVANCES. 


Interest  on.  see  Interest.  I.  b. 
.Mortgage  to   Socure.    see   Mortgage,   20,   33, 
65,  96. 


ADVERSE  CLAIM. 


Action   to   Determine,  as   Suit   in   Rem,  see 
Judgment,  31. 

1.  An  action  to  determine  an  adverse 
claim,  provided  by  Id.  Rev.  Stat.  §  4928,  is 
nn  action  at  law,  triable  in  the  ordinary 
courts  of    law   by    a   Jury,    unless  a   jury    be 


waived.     Ada  County  v.   Bullen  Bridge  Co. 
5  Idaho,  79,  48  Pac.  818,  36:  367 

2.  A  county  can  compel  the  holders  of 
its  warrants  to  wage  their  claims  upon 
them,  or  forever  abandom  them,  under  Id. 
Rev.  Stat.  §  4928,  giving  a  right  of  action 
to  determine  an  adverse  claim  made  by  an- 
other party  for  money  or  propertj-  upon  an 
alleged  obligation.  Id. 


ADVERSE  POSSESSION. 

L  What  Constitutes. 

a.  In  General. 

b.  On  Boundary. 

c.  Vendor  and  Purchaser. 

d.  Landlord  and  Tenant. 

e.  As  to  Dower;  Mortgage  or  Trust. 

f.  As  to  Tenants  in  Common  and  by 

Entirety. 

g.  As  to  Remaindermen  or  Reversion- 

ers, 
h.  As  to  Public;  Highway,  Canal,  or 

Tide  Land, 
i.  Color  of  Title, 
j.  Claim;  Hostility, 
k.  Extent  and  Kind  of  Possession. 
II.  Effect. 

III.  Who  may  Hold  Adversely. 

IV.  Editorial'   Notes. 

Of   Land    Conveyed,   Effect   on    Validity   of 

Conveyance,  see  Champerty,  III. 
Creating  Cloud  on  Title,  see  Cloud  on  Title, 

13.   14,   21. 
Easement    bv    Prescription,   see   Easements, 

IL  b. 
Estoppel  to  Set  up,  see  Estoppel,   173,  289. 
Presumption   as  to  Knowledge  of.  see   Evi- 
dence, 304. 
Admissions    against,    see   Evidence,   1457. 
Evidence  as  to,  see  Evidence.  2157-2159. 
Applicability    of    Torrens    Law    to    Adverse 

Claimant,  see  .ludgment.  265. 
As  to  Limitation  of  Actions,  .see  Limitation 

of  Actions. 
Notice  of  Rights   from   Possession    of  Land 

Cenerally.  see  Notice,  IL  b.  • 
Acquiring  Right    to    .Maintain    Nuisam-e    by 

Prescription;  see  Nuisances,  1.50-155. 
Who     nuiy     Maintain     Action     to     Protect 

Rights  Acquired  by,  see  Parties,  106. 
As  Affecting  Partition,'  see  Partition.  10-13. 
Replevin   by    .\dverse   Possessor   for  Timber 

Severed,  see  Replevin,  23. 
Finding  as  to.  see  Trial,  881. 
To   (iive   Title   to   Vendor,   see   Vendor  and 

Purchaser.  45. 
Prescriptive  Right  in  Waters  of  Great  Ponds, 

see  Waters.  65-67. 
Of  Water,  see  Waters,  II.  k. 


I.  What   Constitutes, 

a.  In  General. 

See  also   infra,  77. 

1.  A  common  source  of  title  will  not  pre- 


ADVERSE  POSSESSION,   I.   b— e. 


27 


vent  one  part}'  in  possession  from  claiming 
adverselj-  to  the  other,  where,  although  he 
claims  under  a  deed  from  the  same  person, 
each  insists  than  the  deed  of  the  other  is 
invalid  and  passes  no  title.  Smith  v.  Osage, 
80   Iowa,  84,  45  N.  W.  404,  8:  633 

2.  In  determining  the  truth  of  an  allega- 
tion that  the  person  claiming  real  estat* 
by  adverse  possession  obtained  by  fraud  the 
title  under  color  of  which  he  took  possession, 
the  fact  may  be  considered  that  the  one 
■claiming  to  be  the  true  owner  made  no 
■claim  to  the  land,  directly  or  indii^tly.  for 
a  period  of  sixteen  years,  during  all  of 
which  time  the  adverse  claimant  paid  the 
taxes  thereon.  Cramer  v.  Clow,  81  Iowa, 
255,  47  N.  W.  59,  9:  772 

b.  On  Boundary. 

As    to    Boundaries    Generally,    see   Bounda- 
ries. 
Evidence  as  to.  see  Evidence,  2159. 
•See  also  infra,'  12,  81. 
For  Editorial  Notes,  see  infra,  IV.  §  2. 

.3.  Possession  or  intrusion  upon  land  by 
mistake  in  consequence  of  confusion  or  un- 
<^ertainty  as  to  the  true  boundary,  without 
iiny  intention  to  claim  title  beyond  one's 
lawful  boundarv,  is  not  adverse.  King  v. 
Brigham.  23  Or.  262,  31  Pac.  601,       18:  361 

4.  Occupancy  of  land  up  to  a  certain  fence 
believing  it  to  be  the  true  line,  but  with  no 
intention  to  claim  title  beyond  the  true 
boiuidary,  is  not  an  adverse  possession  be- 
vond  the  true  line.  Preble  v.  Maine  C.  R. 
€o.  85  :Me.  260,  27  Atl.  149,  21:  829 

5.  Possession  to  a  fence  beyond  the  true 
boundary,  in  ignorance  of  the  true  line,  may 
constitute  an  adverse  possession,  it  there  is 
an  intention  to  claim  title  and  to  acquire  it, 
if  necessarv,  by  possession  up  to  the  fence. 

Id. 

6.  Where  a  purchaser  of  land  by  mistake 
incloses  a  parcel  contiguous  to  land  pur- 
■chased.  believing  that  he  is  putting  his  fence 
on  the  true  boundary,  and  holds  such  parcel 
as  his  own  for  seven  years,  his  possession  is 
adverse  as  against  the  true  owner.  Erck  v. 
Church,  87  Tenn.  575,  11  S.  W.  794,  4:  641 
Jtailroad  right  of  way. 

See  also  infra,  10,  39,  40,  67. 

7.  Wliere  a  deed  of  a  railroad  right  of  way 
c-onsisting  of  a  strip  through  the  grantor's 
farm,  100  feet  in  width  on  each  side  of  the 
track,  required  the  railroad  to  maintain 
fences  dividing  the  right  of  way  from  the 
adjoining  land,  and  it  inclosed  a  strip  100 
feet  in  width  in  place  of  the  200  conveyed, 
the  occupation,  for  twenty  years,  by  the 
grantor  and  his  assigns  to  the  fences,  claim- 
ing thcin  as  the  bovmdary  line  established 
by  compromise,  will  bar  an  action  of  eject- 
ment by  the  railroad  company  against  re- 
mote grantees,  although  the  first  conveyance 
of  the  farm  was  subject  to  the  easement 
conveyed  to  the  railroad.  Illinois  Central 
T;  Co.  v.  Houghton,  126  111.  233,  18  N.  E. 
SOI,  1:213 


c.  Vendor  and  Purchaser. 

See  also  supra,  7,  infra,  15,  16,  20,  25-29. 

8.  The  possession  of  real  estate  by  one 
who  enters  under  an  agreement  to  purchase 
from  the  owner,  but  without  paying  the  con- 
sideration price,  cannot  be  adverse  until  he 
repudiates  the  seller's  title  and  asserts  his 
own  title  to  the  propertv.  Spratt  v.  Liv- 
ingston,   32  Fla.    507,    14  "So.    160,       22:453 

9.  A  grantee  may  perfect  his  title  to  land 
conveyed  to  him  by  deed  by  the  attorney  iu 
fact  of  one  of  two  joint  owners,  by  being  in 
exclusive  possession  of  and  openly  asserting 
title  to  the  whole  tract  for  ten  years,  pro- 
viding the  heirs  or  vendees  of  the  other  joint 
owner  assert  no  claim  thereto  within  that 
time.  Harvev  v.  Briggs,  68  Miss.  60.  8  So. 
274,  *  10:  62 

10.  A  deed  to  a  railroad  company  of  a 
strip  through  a  farm  for  a  right  of  way 
confers  a  right  of  possession  tipon  the  com- 
pany wholly  inconsistent  with  subsequenr 
possession  by  the  grantor  for  the  purpose  of 
grazing  or  agriculture;  and  therefore  such 
possession  by  the  grantor  and  his  assigns 
imder  claim  of  right  is  adverse,  and.  if  con- 
tinued for  the  requisite  time,  will  defeat  the 
title  of  the  railroad.  Illinois  C.  R.  Co.  v. 
Houghton,  126  111.  233,  18  N.  E.  301,      1:  213 

d.  Landlord  and  Tenant. 

Repeal  of  Statute  as  to,  see  Statutes,  572. 

See  also  infra,  73. 

For  Editorial  Notes,  see  infra,  IV.   §  3. 

11.  An  agent's  occupancy  of  a  house  on 
his  principal's  property  as  a  part  merely  of 
the  contract  for  service  does  not  establish 
the  relation  of  tenant  and  landlord  between 
him  and  the  principal,  so  as  to  preclude  him 
from  acquiring  an  adverse  title  to  the  prop- 
ertv. Davis  V.  Williams,  130  Ala.  530.  30 
So.' 488,  54:  749 

12.  The  possession  of  a  tenant  beyond  the 
boundaries  of  the  land  contained  in  the  lease 
even  if  he  believes  that  he  is  occupying  only 
the  land  demised,  will  not  be  the  possession 
of  the  landlord,  if  the  latter  never  had  pos- 
session of  the  land  or  claimed  it.  Holmes  v. 
Turners  Falls  Lumber  Co.  150  Mass.  535. 
23  N.  E.  305,  6:  283 

13.  A  tenant  who  has  never  attempted  to 
surrender  his  rights  during  the  existence  of 
the  term,  or  committed  any  act  which  au- 
thorized a  re-entry  thereunder,  can  acquire 
no  righ'ts  during  that  time  by  adverse  pos- 
session. Bedlow  V.  New  York  Floating  Drv 
Dock  Co.  112  N.  Y.  263,  19  N.  E.  800,     2:  629 

e.  As  to  Dower;  Mortgage  or  Trust. 

Dower. 

14.  A  widow's  dower  is  not  barred  by  ad- 
verse possession  during  her  husband's  life- 
time, though  for  a  period  sufficient  to  defeat 
his  title.  Williams  v.  Williams,  89  Ky.  381. 
12  S.  W^  760,  6:  637 

15.  There  is  no  adverse  holding  by  the 
grantee  of  land  during  the  life  of  the  grant- 
or, against  the  dower  right  of  the  grantor's 


as 


ADVERSE  POSSESSION,   I.  f,   g. 


wife,  who  did  not  join  in  the  conveyance; 
but  it  is  otherwise  in  tne  case  of  a  disseisor 
who  has  acquired  title  by  adverse  possession 
as  against- the  husband  during  his  lifetime. 
Winters  v.  De  Turk,  133  Pa.  359,  19  Atl. 
354,  7:  658 

Mortgage. 

16.  Neither  the  mortgagor  nor  his  grantee 
holds  adversely  to  the  mortgagee  until  he 
has  distinctly  disclaimed  holding  under  him, 
and  asserted  title  in  himself.  Holmes  v. 
Turners  Falls  Lumber  Co.  150  Mass.  535,  23 
N.  E.  305,  6:  283 

17.  Purchase  of  tax  titles  to  land  by  the 
wife  of  a  mortgagor  in  possession,  which 
have  arisen  under  taxes  assessed  subse- 
quently to  the  execution  of  the  mortgage, 
which  was  to  secure  paj'ment  of  purchase 
moB.ey  for  the  land,  will  not  create  a  title 
in  the  mortgagor  or  his  wife  which  is  ad- 
verse to  the  mortgagee.  McKisson  v.  Dav- 
enport, 83  Mich.  211,  47  N.  W.  100,     10:  507 

18.  The  possession  by  a  wife  of  land  under 
a  parol  gift  from  her  husband  is  not  adverse 
to  his  mortgagee  while  the  husband  resides 
with  her  upon  the  land.  GafTord  v.  Strouse, 
89  Ala.  283,  7  So.  248,  7:  568 
Trust. 

See  also  infra,  30,  35. 

19.  When  possession  of  trust  property  is 
taken  by  the  trustee,  it  is  the  possession  of 
the  cestui  que  trust,  whether  the  trust  be 
express  or  implied,  and  cannot  be  adverse 
until  the  trust  is  openly  disavowed  or  de- 
nied, and  this  fact  is  brought  home  to  the 
knowledge  of  the  cestui  que  trust.  Revnolds 
v.  Sumner,  126  111.  58,  18  N.  E.  334,    'l:  327 

20.  Possession  of  land  by  a  grantee  as 
trustee  for  the  use  and  benefit  of  his  wife, 
so  long  as  it  continues  to  be  held  under  the 
deed,  is  not  adverse  to  her,  even  after  he  has 
obtained  a  divorce  from  her.  Meacham  v. 
Bunting,  156  111.  586,  41  N.  E.  175,     28:  618 

f.  As  to   Tenants  in  Common  and  by  En- 
tirety. 

See  also  infra,  82. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

21.  The  possession  of  one  tenant  in  com- 
mon, in  the  absence  of  an  ouster,  will  inure 
to  the  benefit  of  his  ootenant.  Morrill  v. 
Morrill,  20  Or.  96,  25  Pac.  302,  11:  155 

29.  A  judgment  in  favor  of  one  tenant  in 
common  against  an  adverse  claimant  whom 
he  sues  to  recover  possession  of  the  entire 
land  makes  his  possession  thus  acquired  re- 
late back  to  the  beginning  of  the  action  and 
inure  to  the  benefit  of  his  cotenants,  as 
against  whom  no  adverse  possession  can  be 
acquired  during  the  pendency  of  the  action. 
Newman  v.  Bank  of  California,  80  Cal.  368, 
22  Pac.  261,  5:  467 

23.  The  mere  receipt  of  rents  and  payment 
of  taxes  by  a  tenant  in  common  is  not  a 
sufficient  claim  of  adverse  possession  as 
against  his  cotenant.  Sontag  v.  Bigelow, 
142  111.  143.  31  N.  E.  674,  16:  .326 

24.  Entering  into  possession  of  a  portion 
of  a  cemetery  lot  which  is  inclosed  by  one 
claiming  to  be  the  owner  of   such   portion, 


and  erecting  a  substantial  iron  fence,  so  as 
to  divide  the  part  so  claimed  from  the  re- 
maining part  of  the  lot,  is,  as  to  that  pe- 
culiar character  of  property,  an  act  showing 
adverse  possession,  of  a  public  nature,  to- 
tally irreconcilable  with  cotenancy,  and 
amounts  to  an  actual  ouster  of  others 
claiming  to  be  tenants  in  common  with  the 
possessor.  Roumillot  v.  Gardner,  113  Ga. 
60,  38   S.  E.  362,  53:  729 

By  grantee  of  cotenant. 

Running  of  Limitations  in  Favor  of  Gran- 
tee, see  Limitation  of  Actions,  134. 

25.  The  purchase  of  property  from  one  of 
several  cotenants,  or  from  a  life  tenant,  fol- 
lowed by  the  taking  of  possession  and  as- 
sertion of  exclusive  title  to  the  property,  is 
suflRcient  to  set  in  motion  the  statute  of 
limitations  against  the  claims  of  the  other 
cotenants  or  the  remainderman,  where  the 
statutes  enable  remaindermen  to  maintain 
actions  to  settle  disputed  questions  of  title. 
Crawford  v.  Meis,  123  Iowa,  610,  99  N.  W. 
186,  66:  154 

26.  Possession  by  a  purchaser  under  an  ex- 
ecutory contract  of  sale,  made  by  the  hus- 
band alone,  of  land  owned  in  joint  tenancy 
by  husband  and  wife,  is  not  adverse  to  the 
wife.  McNeeley  v.  South  Penn  Oil  Co.  52 
W.  Va.   616,  44  S.  E.  508,  62:  562 

27.  Possession  under  an  execution  sale 
against  the  husband,  of  land  formerly  held 
by  entireties  by  a  couole  who  were  divorced 
prior  to  the  sale,  is  suiUcient,  if  properly 
maintained,  to  bar  all  rights  of  the  wife 
thereto,  even  before  the  husband's  death. 
Hopson  V.  Fowlkes,  92  Tenn.  697,  23  S.  W. 
55,  23:  805 

28.  Until  the  close  of  the  husband's  curt- 
esy estate,  possession  of  land  owned  by 
husband  and  wife  in  joint  tenancy,  by  a  pur- 
chaser under  an  executory  contract  by  the 
husband  alone,  followed  by  a  deed  at  the 
wife's  death,  purporting  to  convey  the  fee 
to  the  whole  tract,  is  not  adverse  to  the 
wife's  heirs,  to  whom,  by  statute,  the  wife's 
moiety  descends,  subject  to  the  curtesy  es- 
tate. McNeeley  v.  South  Penn  Oil  Co.  52 
W.  Va.  616,  44   S.  E.  508.        "  62:  562 

29.  A  purchase  by  a  public  corporation  or- 
ganized in  perpetuity,  of  lands  to  be  de- 
voted to  the  burial  of  the  dead,  followed  by 
inclosing,  improving,  and  laying  out  the 
land  in  such  manner  and  devoting  it  to  such 
use  as  is  utterly  inconsistent  with  every 
other  claim  of  title,  is  a  termination  of  the 
joint  agency  of  the  heirs  to  whom  the 
lands  descended,  and  constitutes  such  an 
ouster  as  will  give  title  by  adverse  posses- 
sion after  the  expiration  of  the  statutory 
period.  Baker  v.  Oakwood,  123  N.  Y.  16, 
25  N.  E.  312,  10:  387 

g.  As   to  Remaindermen   or  Reversioners. 

See  also  supra,  25;  infra,  80. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

30.  Adverse  possession  begins  against  the 
reversioner  immediately  upon  a  reversion  of 
title  by  abandonment  and  prohibition  of  the 
use  for  which  alone  the  land  was  granted. 


ADVERSE  POSSESSION,   I.   h. 


29 


whether  the  legal  title  has  passed  to  the  re- 
versioner or  still  remains  in  a  trustee,  dis- 
charged of  the  public  use.  Newark  v.  Wat- 
son (N.  J.  Err.  &  App.)  56  N.  J.  L.  667,  29 
Atl.  487,  24:   843 

By  life  tenant. 

31.  Possession  of  land  by  a  tenant  for  life 
cannot  be  adverse  to  the  remainderman  or 
reversioner.  Meacham  v.  Bunting,  156  111. 
586,  41  N.  E.  175,  28:  618 

32.  The  possession  of  a  life  tenant,  after 
purchasing  at  an  administrator's  sale  and  re- 
ceiving a  deed  of  it,  if  not  technically  ad- 
verse to  the  heirs,  is  of  an  adver&ry  char- 
acter; and  such  possession,  continued  by 
such  life  tenant  and  her  grantees  for  twen- 
ty years,  constitutes  a  title  which  is  a  suffi- 
cient defense  to  an  action  of  ejectment. 
Balkham  v.  Woodstock  Iron  Co.  43  Fed.  648. 

11:  230 

33.  The  fact  that  a  life  tenant  and  his 
immediate  grantees  during  the  existence  of 
the  life  estate  laid  out  and  platted  a  town 
upon  the  land  does  not  show  a  possession 
adverse  or  hostile  to  those  entitled  to  the 
possession  at  the  termination  of  his  life  es- 
tate. Orthwein  v.  Thomas,  127  111.  554,  21 
N.  E.  430,  4:  434 
By  third  person. 

34.  The  statute  of  limitations  does  not 
run  during  the  life  of  a  life  tenant,  against 
persons  entitled  to  the  land  after  suca  life 
tenant's  death.  Haskett  v.  Maxey,  134  Ind. 
182,  33  N.  E.  358,  19:  379 

35.  A  trustee  is  in  such  privity  and  so 
represents  contingent  remaindermen  that  ti- 
tle by  adverse  possession  may  be  acquired 
against  the  latter  during  the  life  of  the  life 
tenant.  Gindrat  v.  Western  R.  of  Ala,  96 
Ala.   162,  11  So.  372,  19:  839 

36.  Where  the  estate  of  a  life  tenant  has 
been  absorbed  by  a  third  person  through  an 
adverse  possession  of  the  land,  a  deed  of  the 
life  estate  by  the  life  tenant  to  the  remain- 
derman will  be  ineffective  to  pass  any  title 
to  the  latter  which  can  merge  in  the  remain- 
der so  as  to  enable  the  remainderman  to 
bring  suit  to  recover  the  land  before  the 
death  of  the  life  tenant.  Baker  v.  Oakwood, 
123  N.  Y.  16,  25  N.  E.  312,  10:  387 

37.  Possession  for  seven  years  by  one 
claiming  under  a  deed  purporting  to  con- 
vey the  interest  of  a  remainderman,  and 
sufficient  to  constitute  color  of  title,  coupled 
with  payment  of  taxes  for  the  same  period, 
will  bar  the  estate  in  remainder,  notwith- 
standing the  existence  of  the  outstanding 
life  estate,  where  ttie  remainderman  is  un- 
der no  disability  and  could  have  paid  the 
taxes.  Nelson  v.  Davidson,  160  111.  254,  43 
N.  E.  361,  31:  325 

h.  At  to  Public;    Highway,  Canal,   or  Tide 
Land. 

38.  Prescription  does  not  run  against  a 
municipal  corporation  in  regard  to  land  held 
for  the  benefit  of  the  public.  Norrell  v. 
Augusta  R.  &  E.  Co.  116  Ga.  313,  42  S.  E. 
466,  59:  101 


Railroad  right  of  way. 

See  also  supra,  7;   infra,  67,  68;  Limitation 

of  Actions,  73. 
For  Editorial  Notes,  see  infra,  IV.  §  4. 

39.  A  railroad  right  of  way  is  of  such  a 
public  nature  that  title  thereto  cannot  be 
acquired  against  the  company  by  prescrip- 
tion or  the  running  of  the  statute  of  limita- 
tions. Southern  P.  Co.  v.  Hyatt,  132  Cal. 
240,  64  Pac.  272,  54:  522 

40.  A  railroad  company  cannot  set  up  the 
rights  of  the  government  to  defeat  a  title 
acquired  through  adverse  possession  by  a 
third  person  to  a  portion  of  its  right  of  way- 
Northern  P.  R.  Co.  V.  Ely,  25  Wash.  384, 
65  Pac.  555,  54:  526 
Passway. 

41.  The  presumption  that  public  use  of  a 
passway  through  uninclosed  woodland  is  by 
permission  of  the  owner,  and  not  adverse 
to  his  title,  is  not  conclusive.  Riley  v.  Buch- 
anan, 116  Ky.  625,  76  S.  W.  527,  .  63:  642 
Highways. 

Establishment  -of  Highway  by  Prescription 

or  User,  see  Highways,  4-9,   18,  21. 
See  also  infra,  68. 
For  Editorial  Notes,  see  infra,  IV.  §  3. 

42.  Actual,  visible,  exclusive  and  uninter- 
rupted possession  of  a  portion  of  a  street 
in  a  city  under  a  claim  of  right  for  the 
statutory  period  vests  an  absolute  title  in 
the  occupant.  Meyer  v.  Graham,  33  Neb. 
566,  50  N.  W.  763,  18:  146 

43.  Adverse  possession  of  a  street  may  be 
obtained  in  W^est  Virginia,  where  the  stat- 
ute expressly  declares  that  every  statute  of 
limitations,  unless  otherwise  expressly  pro- 
vided, shall  apply  to  the  state.  Teass  v.  St. 
Albans,  38  W.  Va.  1,  17  S.  E.  400,       19:  802 

44.  Adverse  possession  cannot  be  claimed, 
as  against'  a  town,  of  land  within  the  boun- 
daries of  a  street  as  shown  on  a  plat  filed 
in  the  clerk's  office  imder  the  provisions  of 
W.  Va.  Laws  1845-46,  p.  139,  incorporating 
the  town,  which  declares  that  the  piat  shall 
be  conclusive  evidence  of  the  street  boun- 
daries in  all  future  suits  and  contests  that 
may  arise  concerning  them.  McClellan  v. 
Weston,  49  W.   Va.   669,  39  S.  E.  670, 

55:  898 

45.  Adverse  possession  of  part  of  a  strip 
of  land  dedicated  as  a  city  street  and  ac- 
cepted by  the  authorities  as  such  cannot  rip- 
en into  title  by  prescription,  although  such 
possession  is  under  a  deed  from  the  dedica- 
tor subsequent  to  the  deed  to  the  municipal- 
ity, and  the  part  so  occupied  has  never  been 
opened  and  used  by  the  city  as  a  street. 
Norrell  v.  Augusta  R.  &  E.  Co.  116  Ga.  313, 
42  S.  E.  466,  59:  101 

46.  The  rights  of  the  public  in  a  street 
are  not  lost  by  acquiescence  in  its  obstruc- 
tion or  private  use  by  a  citizen,  or  by 
laches  in  resorting  to  legal  remedies,  or  by 
the  .statute  of  limitations,  or  prescription. 
Webb  V.  Demopolis,  95  Ala.  116,  13  So.  289. 

21:  62 

47.  Possession  of  a  strip  marked  on  a  map 
as  a  street,  by  grantees  of  lots  under  deeds 
referring  to  it  as  such,  one  of  whom  fences 
in  part  of  the  strip,  plants,  and  adorns  it, 
while  another  owns  a  house  upon  it,  cannot 


30 


ADVERSE  POSSESSION,    I.   i,   j. 


be  regarded  as  adverse  while  they  them- 
selves have  recognized  the  easement  within 
twenty  years  by  conveyances  referring  to 
the  strip  as  a  street,  and  the  grantees  of 
other  lots  have  not  needed  or  sought  to  use 
their  easement  in  it.  Ee  Olean,  135  N.  Y. 
341,  32  N.  E.  9,  17:  640 

48.  Me.  Rev.  Stat.  chap.  18,  §  95,  in  rela- 
tion to  adverse  possession  by  buildings  and 
fences  fronting  upon  ways  and  streets,  has 
no  application  where  the  act  complained  of 
consists  in  maintaining  a  dam  whereby  the 
water  is  caused  to  overflow  a  highway  and 
injure  the  same.  Charlotte  v.  Pembroke 
Iron  Works,  82  Me.  391,  19  Atl.  902,  8:  828 
Canals. 

49.  Title  by  adverse  possession  may  be 
obtained  to  land  which  formed  part  of  the 
bed  of  a  canal,  the  public  uses  of  which  have, 
with  the  acquiescence  of  the  state,  been 
abandoned.  After  such  abandonment  the 
canal  ceases  to  be  a  highway,  and  its  ob- 
struction does  not  constitute  a  nuisance  so 
as  to  be  an  indictable  offense,  within  the 
rule  that  no  prescriptive  right  can  arise 
therefrom.  Collett  v.  Vanderburgh  Countv, 
119  Ind.  27,  21    N..E.  329,  4:321 

.lO.  Filling  up  a  canal,  thereby  obliterat- 
ing every  trace  of  the  public  highway,  with 
the  intention  of  asserting  ownership  to  the 
land  previously  occupied  thereby,  and  con- 
tinuing in  visible,  exclusive  possession  under 
such  claim,  exercising  those  acts  of  owner- 
ship usually  practised  by  owners  of  such 
land,  and  using  it  for  purpo-ses  to  which  it 
is  adapted,  without  asking  permission  and 
in  disregard  of  all  conflicting  claims, — are 
sufficient   to   make   the   possession   adverse. 

Id. 
Tide  Lands. 

51.  Title  to  property  below*  high-water 
mark  on  a  tidal  river,  held  by  a  municipality 
in  trust  for  the  public,  cannot  be  acquired 
bv  an  individual  bv  adverse  possession.  Mo- 
bile Transp.  Co.  v*  Mobile,  128  Ala.  335.  .30 
So.  645,  64:  333 

52.  Adverse  possession  cannot  be  held  of 
bind  covered  by  water  within  the  ebb  and 
flow  of  the  tide, — at  least  where  the  law 
prohibits  the  grant  of  land  covered  by  nav- 
igable water.  Sollers  v.  Sollers,  77  Md.  148, 
2(>  Atl.  188,  20:  94 

i.  Color  of  Title. 

See  also  supra.  37. 

For  Editorial  Notes,  see  infra,   IV,   §   1. 

53.  Title  by  prescription  without  any  pre- 
tense of  paper  title  may  be  gainefl  by  wrong- 
ful entry  ufKUi  land  under  a  claim  of  riglit 
inc-onsdstent  with  the  title  of  the  true  own- 
er, with  continued  possession  and  exercise  of 
acts  of  ownership  hostile  to  the  rights  of  the 
owner.  Swan  v.  Mimch,  65  ^Minn.  500.  67 
X.  W.  1022,  35:  743 
Parol  gift. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

.54.  Possession  of  land  under  a  parol  prom- 
ise of  a  gift  may  be  the  foundation  of  ad- 
verse possession  bv  the  donee.  S(^hafer  v. 
Hauser.   Ill    Mich. '622,  70  N.  W.    136. 

35:  835 


Parol  partition. 

See  also   infra,  57. 

55.  A  parol  partition  does  not  constitute 
color  of  title  for  the  purpose  of  adverse  pos- 
session against  the  cotenant.  Sontag  v. 
Bigelow,  142  111.  143,  31  N.  E.  674,  16:  326- 
Contract  for  sale. 

56.  An  executory  contract  for  the  sale  of 
land,  stipulating  for  future  conveyance  of 
legal  title,  the  purchase  money  payable  in 
future,  is  color  of  title  under  the  statute  of 
limitations  as  to  hostile  claimants,  since 
such  a  contract  is  recognized  at  law,  even  as 
against  the  vendor,  to  sustain  the  vendee's 
possession  by  W.  Va.  Code  1899,  chap.  90,  § 
20,  providing  that  a  vendor,  or  any  person 
claiming  under  him,  shall  not  at  law  recover 
against  a  vendee,  or  those  claiming  imder 
him,  lands  sold  bj'  the  vendor,  to  the  vendee, 
when  there  is  a  writing  stating  the  pur- 
chase, and  the  terms  thereof,  signed  by  the- 
vendor  or  his  agent,  and  chap.  98,  cl.  6. 
saying  that  no  one  shall  without  a  writing 
be  chargeable  upon  any  contract  for  sale  of 
real  estate  for  more  than  a  j'ear.  McNeelev 
V.  South  Penn  Oil  Co.  52  W.  Va.  616.  44  .S. 
E.  508,  62:  .562 
Deeds. 

57.  A  master's  deed  in  partition  pra:*eed- 
ings  is  sufficient  color  of  title  upon  which  to- 
found  a  claim  to  adverse  possession,  not- 
withstanding the  proceedings  which  led  to 
the  sale  did  not  conform  to  the  law.  Sontag- 
v.  Bigelow,   142  111.   143,   31  N.   E.   674, 

16:  .326; 

58.  Deeds  tending  to  show  title  in  plain- 
tiff, together  with  the  possession,  are  suffi- 
cient color  of  title  to  support  an  action  to 
trv  title  to  real  estate.  Heyward  v.  Farm- 
ers' Min.  Co.  42  S.  C.  1.38,  19  S.  E.  963.  20 
S.  E.  64,  28:  42: 

59.  A  deed  to  land  may  constitute  suui- 
cient  color  of  title  to  found  a  claim  by  ad- 
verse possession,  although  it  is  not  properly 
acknowledged.  Cramer  v.  Clow.  81  Iowa. 
255.  47  N.  W.  59,  9:  772" 

60.  A  deed  for  "a  part  of  the  west  half  of 
a  quarter  section  of  land,  "containing  one- 
acre  more  or  less,"  without  specifying  the- 
part  of  the  tract  out  of  which  it  is  taken, 
is  void  for  uncertainty,  and  will  not  consti- 
tute color  of  title  on  which  to  found  a  title^ 
under  the  statute  of  limitations.  Hanna 
V.  Palmer.  194  III.  41,  61  N.  E.  1051.     .16:  91? 

61.  A  deed  purporting  on  its  face  to  con- 
vey the  title  of  land  to  the  grantee  is  suffi- 
cient to  constitute  claim  and  color  of  title- 
in  the  grantee,  although  the  title,  when 
traced  back  to  its  source,  is  not  apparent!}" 
legal  and  valid.  Nelson  v.  Davidson.  16r> 
111.  254.  43  N.  E.  361,  31:  .325* 

62.  A  conveyance  of  a  pew,  sufficient  in 
every  respect  to  convey  real  estate  except  in 
the  want  of  seals  or  words  calling  for  seals, 
is  a  basis  of  adverse  possession,  if  the  gran- 
tees occupied  under  it,  believing  their  title 
good.  Avlward  v.  O'Brien,  160  Ma.ss.  118. 
.35  N.  E.  31,3,  22:  20© 

j.  Claim;  Hostility. 

See  al.so  supra.  23,  29.  41.  42.  47. 

For  Editorial  Notes,  see  infra,  IV.  §  1. 


ADVERSE   POSSESSION,   I.  k,   II. 


31 


63.  Actual  hostile  exclusive  occupancy  of 
land  without  any  presumption  or  claim  of 
right  is  sufficient  to  ripen  into  title  under 
the  statute  of  limitations.  Illinois  Steel 
Co.  V.  Budzisz,  161  Wis.  499,  81  N.  W.  1027, 

48:  830 

64.  A  claim  of  title,  or  specific  intent  to 
make  the  land  his  own,  is  not  necessary  to 
perfect  the  title  of  one  in  adverse  posses- 
sion of  real  estate  for  the  statutory  period. 
Carney  v.  Hennessey,  74  Conn.  107,  49 
Atl.  910,  53:  699 

65.  To  contsitute  adverse  possession  suffi- 
cient to  defeat  the  legal  title,  the  possession 
must  be  actual,  visible,  exclusive,  and  hos- 
tile in  its  inception,  and  so  continued  for  the 
period  of  twenty  years.  It  need  not  be 
under  a  rightful  claim,  or  under  a  muni- 
ment of  title,  nor  need  there  be  oral  decla- 
ration of  a  claim,  if  the  proof  of  acts  on 
the  part  of  the  party  in  possession  clearly 
indicates  such  claim.  Illinois  C.  R.  Co.  v. 
Houghton,  126  111.  233,  18  N.  E.  301,      1:  213 

k.  Extent  and  Kind  of  Possession. 

See  also  supra,  24. 

For  Editorial  Notes,  see  infra,  IV.  §  1. 

66.  Adverse  possession  of  a  burial  lot  is 
held  by  its  use  for  a  burial  place,  with  or 
without  inclosure,  as  long  as  gravestones 
stand  marking  the  place  as  burial  ground. 
Hook  V.  Joyce,  94  Ky.  450,  22  S.  W.  651. 

21:  96 

67.  The  fencing  and  cultivation  by  the 
owner  of  the  fee  in  land,  over  which  a  rail- 
road company  has  a  right  of  way,  of  such 
portions  thereof  as  are  not  covered  by  the 
tracks  of  the  company,  is  not  inconsistent 
with  the  company's  easement  therein,  and 
will  not  amount  to  an  adverse  possession 
which  can  destroy  the  easement,  where  the 
company  is  not  notified  that  such  use  is 
intended  to  be  adverse  to  the  easement. 
Hence  a  construction  of  side  tracks  by  the 
company  over  such  inclosed  land  will  not 
entitle  the  owner  to  compensation,  although 
he  has  maintained  his  inclosure  for  the 
period  necessary  to  bar  actions  in  regard  to 
real  estate.  East  Tennessee,  V.  &  G.  R. 
Co.  v.  West,  89  Tenn.   293,   14  S.  W.  776, 

10:  855 

68.  The  mere  construction,  maintenance, 
and  occasiional  use  by  a  railroad  company  of 
an  ordinary  railroad  track  across  a  platted 
street  while  it  still  remains  unimproved  and 
unfit  for  use,  and  before  public  conven- 
ience or  necessity  requires  it  to  be  opened 
and  improved  for  use  as  a  street,  does  not 
constitute  adverse  possession  as  against  the 
public,  but  must  be  presumed  to  be  subject 
to  the  paramount  right  of  the  public.  St. 
Paul  &  D.  R.  Co.  V.  Duluth,  73  Minn.  270, 
76  N.  W.  35,  43:  433 
Of  surface. 

69.  Adverse  possession  of  the  surface  of 
land  for  sufficient  time  to  give  title  to  the 
surface,  by  one  Vho  has  actual  notice  that 
the  legal  owner  purchased  and  is  using  a 
larger  tract  of  land,  including  that  of  which 
he  holds  adverse  possession,  for  the  purpose 


of  mining  the  underlying  coal,  does  not  give 
title  by  adverse  possession  to  the  coal  under 
the  surface.  Delaware  &  H.  Canal  Co.  v. 
Hughes,  183  Pa.  66,  38  Atl.  568,  38:  826 

70.  The  possession  of  the  soil  by  the  own- 
er for  the  purpose  of  tillage,  etc.,  gives  him 
no  possession  of  gas  under  the  surface,  as 
against  parties  to  whom  he  has  leased  the 
land  for  gas  purposes,  and  who  remain  in 
possession  of  a  well  which  gives  them  the 
sole  control  of  the  gas  so  far  as  its  utiliza- 
tion is  concerned,  and  the  sole  possession  of 
which  it  is  capable,  apart  from  the  land. 
Westmoreland  &  C.  Natuaral  Gas  Co.  v.  De 
Witt,  130  Pa.  235,  18  Atl.  724,  5:  731 

71.  Possession  of  land  is  not  adverse  to 
the  owner  of  minerals  therein,  when  the 
land  is  used  merely  for  agricultural  pur- 
poses, without  any  denial  to  the  right  to 
the  minerals,  or  any  assertion  of  claim  in- 
consistent therewith.  Murray  v.  Allard, 
100  Tenn.  100,  43  S.  W.  355,  39:  249 
Constructive. 

72.  Actual  possession  by  inclosure  of  a 
portion  of  land  claimed  under  a  paper  title 
draws  to  it  constructive  possession  of  all 
land  within  the  boundaries  called  for  by  the 
title  papers.  Wheeler  v.  Clark,  114  Tenn. 
117,  85  S.  W.  258,  69:  732 

73.  Under  a  lease  of  two  tracts  of  land, 
by  the  owner  of  one  of  them,  possession  of, 
and  work  upon,  the  track  owned  by  the 
lessor,  for  the  statutory  period,  does  not 
constitute  constructive  adverse  possession  of 
the  other  tract,  which  has  never  been  invad- 
ed by  actual  physical  possession,  so  as  to 
bar  the  owner  thereof  from  brini,!ag  an  ac- 
tion to  recover  such  tract.  McNeelev  v. 
South  Penn  Oil  Co.  52  W.  Va.  616,  44  S.  E. 
508,  62:  562" 

74.  Actually  occupying  adversely  part  of 
the  north  half  of  a  quarter  section  of  land 
under  a  recorded  patent  including  the  whole 
quarter  section  does  not  constitute  adverse 
possession  of  the  south  half,  which  is 
claimed  under  a  separate  title.  Turner  v. 
Stephenson,  72  Mich.  409,  40  N.  W.  735, 

2:277 


n.  Effect. 


See  also  supra,  6,  37. 

75.  Adverse  possession  of  lands  for  a  peri- 
od sufficient  to  bar  an  action  does  not  mere- 
ly cut  oflF  the  owner's  remedy  without  affect- 
ing the  estate,  but  devests  the  estate  of  the- 
true  owner,  and  transfers  it  to  the  party 
holding  adversely.  Baker  v.  Oakwood.  123 
N.  Y.  16,  25  N.  E.  312,  10:  .-{87 

76.  Title  acquired  by  takdng  actual  posses- 
sion of  vacant  land  after  having  paid  taxes 
thereon  for  seven  years  under  color  of  title 
made  in  good  faith  is,  by  force  of  the  Illi- 
nois statute  of  limitations,  such  a  fixed  title 
as  will  enable  one,  not  only  to  defend  his- 
possession,  but  to  recover  possession  from 
another  who  has  subsequently  taken  it. 
Gage  V.  Hampton,  127  111.  87,  20  N.  E.  12, 

2:  512 

77.  Where  a  person  has  been  in  the  open, 
notorious,   exclusive,    adverse  possession  of 


ADVERSE  POSSESSION,   III..   IV. 


real  estate,  as  owner,  for  ten  years,  he  there- 
by acquires  an  absolute  title  to  the  land, 
free  from  the  lien  created  by  a  tax  deed 
on  the  property,  issued  prior  to  the  com- 
mencement of  such  adverse  possession. 
Alexander  v.  Wilcox,  30  Neb.  793,  47  N.  W. 
81,  9:  735 

Continuity  and  interruptions. 
Erroneous  Instruction  as  to,  see  Appeal  and 

Error,  1046. 
Evidence  as  to  Interruptions,  see  Evidence, 

2158. 
For  Editorial  Notes,  see  infra,  IV.   §   1. 

78.  Detached  occupation  of  portions  of 
certain  property  by  diflFerent  people  not 
holding  under  the  paper  title,  and  not  con- 
tiguous in  point  of  tiixie,  constitutes  merely 
a  series  of  independent  trespasses,  and  can- 
not give  title  by  adverse  possession.  Pitts- 
burgh, Ft.  W.  &  C.  R.  Co.  V.  Peet,  152  Pa. 
488,  25  Atl.  612,  19:  467 

79.  Possession  need  not  be  constant  to 
make  it  sufficiently  continuous  to  be  adverse 
when  the  property  is  used  from  time  to  time 
as  needed.  Swan  v.  Munch,  65  Minn.  500, 
67  N.  W.  1022,  35:  743 

80.  Possession  during  the  life  of  a  life 
tenant  cannot  be  joined  to  possession  after 
his  death  to  complete  title  against  the  own- 
er of  a  vested  remainder  in  fee.  Gindrat  v. 
Western  R.  of  Ala.  96  Ala.  162,  11  So.  372, 

19:  839 

81.  Where  a  purchaser  of  land,  who,  by 
mistake,  incloses  a  parcel  contiguous  to  his 
purchase,  believing  that  he  is  putting  his 
fence  on  the  true  boundary,  is  succeeded  in 
possession  by  one  between  whom  and  him- 
self there  is  no  privity  of  estate,  such  as 
exists  between  an  ancestor  and  heir,  or  de- 
visor and  devisee,  and  none  is  created  by 
contract,  the  possession  of  the  two  cannot 
be  connected  so  as  to  make  out  the  period  of 
limitation.  Erck  v.  Church,  87  Tenn.  575, 
II  S.  W.  794,  4:  641 

'82.  An  adverse  possession  of  an  undivided 
half  interest  in  land  by  the  owner  of  the 
other  half  continues  nfter  his  death  in  favor 
of  his  minor  heirs,  where  a  purchaser  takes 
possession  under  a  deed  from  the  widow 
having  only  a  dower  interest,  and  her  second 
husband  and  part  of  the  heirs,  but  the  deed 
is  subsequently  disaffirmed  as  to  the  in- 
fants, rendering  it  void  ab  initio  as  to  them. 
By  the  death  of  their  mother  the  purchaser 
becomes  merely  a  tenant  at  sufferance  of  the 
hoirs.  Harvey  v.  Briggs,  68  Miss.  60,  8  So. 
274,  10:  62 

83.  A  parol  transfer  by  the  first  to  the 
second  occupant  of  property  held  adversely 
and  the  latter's  succession  in  possession  un- 
der it  may  be  sufficient  to  unite  the  two 
possessions  into  one  continuous,  uninterrup- 
ted possession  referable  to  the  first  entry, 
for  the  purpose  of  acquiring  title  by  ad- 
verse possession.  Illinois  Steel  Co.  v.  Budz- 
eiz.  106  Wis.  499,  81  N.  W.  1027,         48:  830 

84.  The  continuity  of  adverse  possession 
is  interrupted  by  dispossession  under  a  judg- 
ment in  ejectment,  although  this  is  reversed 
on  appeal  and  the  possession  restored. 
Gould  V.  Carr,  33  Fla.  523,  15  So.  259, 

24:  130 


III.  Who  May  Hold  Adversely. 

85.  An  unincorporated  church  society  can- 
not acquire  title  to  real  estate  by  adverse 
possession.  Stewart  v.  White,  128  Ala. 
202,  30  So.  526,  55:  211 


rV.  Editorial  Notes. 

§  I.  Generally. 

Conflict  of  laws  as  to.     48:  635. 

^Vhat    constitutes.     4:321;*     6:833;*     13: 

206.* 
How  far  tax  title  constitutes.     2:512;*   9: 

772. 
Color  of  title.     2:  513;*  9:  772.* 
Under  ancient  deeds.     10:  388.* 
Necessity    that    possession    be    hostile    and 

adverse.     4:  641.* 
Necessity    that    possession    be    continuous. 

4:  641.* 
Necessity    that     occupation    be    open     and 

notorious.     4:  641.* 
Presumption  from  lapse  of  time.    4:  646.* 
Connected  possessions;  tacking  on.    4:  642.* 
What  acts  operate  as  a  dis.seisin.     10:  389.* 
Limits  of  land  to  which  presumption  of  title 

applies.     1:  214.* 
Necessity  of  actual  occupation.     4:641.* 
Right,  by  or  against  one  in  adverse  posses- 
sion of  land,  to  maintain 
replevin    for    things    sev- 
ered.    69:  732. 
§  2.  Boundaries. 

As  to  Boundaries,  Generally,  see  Boundaries. 
Effect    of    acquiescence    in    boundary    lines. 

4:  643.* 
Adverse  possession  due  to  ignorance  or  mis- 
take as  to  boundarv.     21: 
829. 
Claim  and  occupancy  to  fence.    21:  830. 
Recognition  of  true  line.     21:830. 
The  effect  of  belief  based  on  mistake. 
21:  831. 
Cases  'holding  mistake   fatal.     21: 

831. 
Cases    holding   the    possession   the 
important   fact.     21:  831. 
Possession  necessary.     21:  833. 
Necessity  of  knowledge  or  dispute.    21: 

833. 
Possession   following   agreement   as    to 

boundary.     21 :  833. 
Acquiescence  in  boundary.     21:  834. 
Settling  one  line  not  conclusive  on  oth- 
ers.    21 :  834. 
§  3.    By  and  against  whom. 
By  donee  under  parol  gift.     35:  835. 
Genera]  doctrine.     35:  835. 
Assertion   of  title   against  donor.      35: 

838. 
Interruption  by  donor's  acts.     35:  839. 
Effect  of  statutes  as  to  slaves.     35:839. 
By  tenant.     53:  941. 
Against  remaindermen  or  reversioners.     10: 

389.* 
Against  remaindermen  and  owners  of  future 
estates.      19:  839. 
Tenants  for  life  and  remaindermen  inter 
se.  19:  839. 


ADVERTISING— AFFIDAVIT. 


38 


Tenant    in    dower    and    remainderman. 

19:  839. 
Tenant  by  the  curtesy  and  remainder- 
man.    19:  841. 
Ouster  of,  and  sales  by,  tenants  for  life. 
19:  841. 
In  case  of  tenants  in  common.    4:  645;*  10: 

388.* 
Adverse  possession  of  husband's  lands,  ef- 
fect upon  wife's  right  of 
dower.    18:  78. 
Against  wife  holding  by  entireties.    30:  335. 
Acquisition  of  title  by  prescription,  against 

public.     20:451.       " 
Rights  acquired  as  against  the  public  by  ad- 
verss    possession   of   high- 
way  or   city  street.      18: 
146. 
Presumption  of  abandonment.     18:  146. 
Estoppel.     18:  147. 
Rule  in  case  of  city  street.     18:  147. 
Enclosure  of  part  of  the  width  of  the 

way.     18:  149. 
Neglect  to  open.     18:  149. 
Restraint  of   summary    proceedings    to 
remove    obstructions.     18: 
149. 
Right  to  lateral  support.     18:  150. 
Miscellaneous  decisions.     18:  150. 
Statutory  provisiions.    18:  150. 
§  4.  As  to  what  property  or  rights. 
Prescriptive  right  to   flow  of  subterranean 

waters.     19:  94. 
Island.     58:  677. 

Rights  of  person  in  adverse  possession  with 
respect    to    accretions    to 
shore  lands.     58:  209. 
Acquisition  by  prescription  of  title  to  land 
for  purposes  of  canal.    61 : 
877. 
Flats.     40:394. 
In  case   of   easements  and   servitudes.     4: 

645.* 
Right  of  way  of  railroad.    1:  214.* 


ADVERTISING. 


Provision  in  Note  for  Privilege  of  Hanging, 
in  Street  Cars,  see  Bills  and  Notes,  47, 
236. 

Uae  of  Flag  for,  see  Constitutional  Law,  450, 
451,  767,  1007. 

Forbidding  Use  of  Land  Near  Park  for,  see 
Eminent  Domain,  220. 

In  Streets,  see  Municipal  Corporations,  148, 
149,  265-267. 

What   May   be  Used   for,  see  Engraver, 

Publishing  Picture,  as  Part  of,  see  Consti- 
tutional Law,  1091 ;  Libel  and  Slander, 
14;  Privacy,  6,  7. 

Of  Sale  of  Debts,  see  Constitutional  Law, 
932,  1087. 

Foreclosure  by,  see  Mortgage,  VI.  f. 

For  Letting  of  Public  Contract,  see  Con- 
tracts, VII.  b. 

One  having  the  right  to  sell  a  medicinal 
preparation  which  is  not  patented  may  pub- 
lish the  fact  that  it  is  made  in  accordance 
with  the  original  formula  therefor.     Wat- 
L.R.A.  Dig.— 3. 


kins  V.  Landon,  52  Minn.  389,  54  N.  W.  193, 

19:  236 


ADVICE  OF  COUNSEL. 

As  Defense  to  Action  for  Malicious  Prosecu- 
tion, see  Malicious  Prosecution,  4,  25. 


AEROLITE. 


An  aerolite  which  embeds  itself  in  the 
earth  as  it  falls  from  the  sky  becomes  the 
property  of  the  owner  of  the  land,  and  an- 
other person  cannot  acquire  ownership  of  it 
by  discovering  it,  digging  it  up,  and  carry- 
ing it  away.  Goddard  v.  Winohell,  86  Iowa, 
71,  62  N.  W.  1124,  17:  788 


AFFECTION. 


As  Consideration,  see  Contracts,  54,  55. 
Presumption  of,  see  Evidence,  268. 
Alienation  of,  see  Husband  and  Wife,   199, 
208-224. 


AFFIANCED. 


Insurable  Interest  of,   see   Insurance,   170- 

173. 
Seduction  of,  see  Seduction,  3, 


AFFIDAVIT. 


In  Admiralty,  see  Admiralty,  9. 

On  Appeal,  see  Appeal  and  Error,  IV.  e. 

In  Attachment  Suit,  see  Attachment,  III.  a; 
Bankruptcy,  58. 

For  Attorney's  Fees,  see  Attorneys'  Fees,  7. 

For  Certiorari,  see  Certiorari,  20,  34,  35,  38. 

For  Renewal  of  Chattel  Mortgage,  see  Chat- 
tel   Mortgage,  57-60. 

As  Contempt  of  Court,  see  Contempt,  33. 

In  Contempt  Proceedings,  see  Contempt,  67- 
69. 

For  Continuance,  see  Continuance  and  Ad- 
journment, in. 

Of  Right  to  Vote,  see  Elections,  81-83,  90, 

As  an  Estoppel,  see  Estoppel,  232. 

As  Evidence,  see  Evidence,  900-902,  951. 

For  Extradition,  see  Extradition,  27,  28. 

For  Arrest,  see  False  Imprisonment,  746. 

In  Garnishment  Proceeding,  see  Garnish- 
ment, 104,  109. 

For  Practising  Medicine  without  License, 
see  Indictment,  etc.,  68. 

For  Injunction,  see  Injunction,  481-483. 

As  to  Cause  of  Death  of  Insured,  see  In- 
surance, 758. 

As  to  Amount  of  Loss,  see  Insurance,  933. 

For  Revocation  of  Liquor  License,  see  In- 
toxicating Liquors,  84. 

For  Revival  of  Judgment,  see  Judgment, 
402. 


84 


AFFILIATION— AFTERBORN    CHILDREN. 


For  Vacation  of  Judgment,  see  Judgment, 

432-434. 
Of  Merits,  see  Judgment,  425. 
For  Change  of  Judge,  see  Judges,  47. 
On  Motion  for  New  Trial,  see  New  Trial,  V. 

c,  and  d. 
To  Plea,  see  Pleading,  20. 
For  Record  of  Mortgage,  see  Real  Property, 

55. 
For    Removal    of    Cause,    see    Removal    of 

Causes,  30. 
In  Replevin  Suit,  see  Replevin,  25. 
Of  Giving  Notice  of  Tax  Sale,  see  Taxes,  520. 
For  Change  of  Venue,  see  Venue,  29,  30. 
Of  Attesting  Witnesses  to  Will,  see  Wills, 

124. 
To  Impeach  Witness,  see  Witnesses,  151. 
Of  Service  by  Mail,  see  Writ  and  Process,  86. 
For  Publication,  see  Writ  and  Process,  44- 

46. 
Charging  Cnlawful  Sale  of  "Beer,"  see  In- 
toxicating Liquors,  95. 
Denying   Sidewalk    Assessment,   see    Public 

Improvements,  152. 
Consideration  of,  on  Appeal,  see  Appeal  and 

Error,  806. 
Effect  of  Failure  to  Indorse  "Filed"  on,  see 

Appeal  and  Error,  592. 
Failure  to  Read,  see  Insurance,  336. 
Sufficiency  of  Objection  to,  see  Trial,  63. 
See  also  Oath. 

Editorial  Notes. 

Power  of  consul  to  take  affidavits.    45:  499. 
Defective  affidavit   to   schedule  annexed  to 

assisnment    for    creditors. 

3:  140.* 
Right    to   amend   affidavit   for   attachment. 

31 :  422. 
Use  of,  before  grand  jury.     28:  319. 
In  proceedings   for  removal   of   cause.     11: 

570.* 
Necessity  of  venue  and  jurat.     13:  556.* 
Privilege  as  to  statements  in.    22:  837. 


AFFILIATION. 


Merger  in  Judgment  of  Rights  Under  Order 
of,   see  Judgment,  97. 


AFFINITY. 

Relationship  by,  sec  Incest. 

Insurable   Interest   \v   Life  of  Relative  by, 

see  Insurance,  168. 
Disqualification    of    Judge    Because    of,    see 

Judges,  26-29. 
What  is,  see  Judges,  29. 

Affinity  is  the  relationship  which  arises 
from  marriage,  between  one  of  the  spouses 
and  the  blood  relations  of  the  other,  and 
docs  not  include  persons  related  to  the  oth- 
er simply  by  aflinitv.  Chinn  v.  State,  47 
Ohio  St.*575,  26  N.  E.  986,  11:  630 

Editorial  Notes. 

Relationship  by,  when  exists.     11:  630.* 
Whether    "relatives"    include   those   by    af- 
finity.    14:  342. 


AFTER-ACQUIRED  PROPERTY. 

Mortgage  on,  see  Chattel  Mortgage,  11.  c 
Estoppel    to    Claim,    see    Estoppel,    54-61, 

Deeds,  III.  §  13. 
Lien  of  Judgment  on,  see  Judgment,  318. 
Passing  under  Mortgage,  see  Mortgage,  20. 
Passing  under  Will,  see  Wills,  12,  237-243. 

Editorial  Notes. 

Priority  of  judgment  liens  on.     42:209. 

Right  of  one  receiving  advancement  and 
executing  release  of  in- 
terest in  estate  to  share 
in  after-acquired  property. 
65:  578. 

Effect  of  covenant  of  warranty  upon.  2: 
335.* 

Effect  of  covenant  of  married  woman  as  an 
estoppel  against  acquiring 
superior  title.     22:  779. 

Validity  of  agreement  to  transfer,  in  con- 
sideration of  maintenance. 
70:  485. 


AFTERBORN  CHILDREN. 

Effect  of  Prior  Suit  on  Rights  of,  see  Ac- 
tion or  Suit,  84. 

Protecting  Rights  of,  see  Constitutional 
Law,  650. 

Damages  for  Causing  Death  of,  see  Dam- 
ages, 328-332,  596. 

Action  for  Death  of,  see  Death,  33. 

Right  of  Action  for  Death  of  Father,  see 
Death,  34. 

Rights  of.  Under  Deed,  see  Deeds,  59,  60,  81; 
Real  Property,  41. 

At  Time  of  Divorce,  Custody  and  Support  of, 
see  Divorce  and  Separation,  116,  117. 

Right  to  Share  in  Benefits  of  Insurance  Pol- 
icy, see  Insurance,  1178,  1224. 

Effect  of  Judgment  Upon,  see  Judgment, 
249-252. 

Effect  of  Judicial  Sale  on  Rights  of,  see  Ju- 
dicial Sale,  9,  10. 

Conclusiveness  against,  of  Sale  of  Land, 
see  Life  Tenants,  9. 

Running  of  Limitations  against,  see  Limi- 
tation of  Actions,  128. 

Representation  of,  in  Suit,  see  Parties,  182. 

Provision  as  to,  in  Will,  see  Wills,  215-219. 

1.  An  infant  has  not  before  birth  such  an 
independent  existence  that  a  negligent  in- 
jury to  him  will  sustain  an  action  in  his 
favor  after  he  is  bom.  Allaire  v.  St.  Luke's 
Hospital,  184  111.  359,  56  N.  E.  638,    48:  225 

2.  The  fact  that  other  members  of  a 
class  to  whom  an  estate  is  given  may  come 
into  being  will  not  prevent  the  court  from 
ordering  a  conversion  of  real  property  into 
personalty,  where  there  are  persons  before 
the  court  belonging  to  the  same  class  and 
equally  certain  to  bring  forward  the  entire 
merits  of  the  question  so  far  as  the  rights 
of  the  persons  not  in  being  can  be  affected. 
Hale  v.  Hale,  146  111.  227,  3  N.  E.  858. 

20:  247 


AGED— AGREED   CASE. 


85 


Eklitorial  Notes. 
As  grantees  in  deeds.     14:  489. 


AGED. 

Who  is,  see  Homestead,  2. 


AGENT. 

Insurance  Agent,  see  Insurance,  I.  d. 
Of  Telegraph  Company,  see  Telegraphs. 
In  General,  see  Principal  and  Agent. 


AGGRAVATION. 


In  Conspiracy  Case,  see  Conspiracy,  29. 
Of  Damages,  see  Damages,  HI.  t. 
Of  Injury,  see  I>J egligence,   187,   188. 
In    Malpractice    Case,    see    Physicians    and 
Surgeons,  56,  57. 


AGGRIEVED. 


Right  to  Appeal  as  Party  Aggrieved,  see  Ap- 
peal and  Error,  99-101,  104. 


AGISTERS. 


Lien  of,  see  Liens,  11-13,  17-22,  III.  §§  1,  5. 
Burglary     by    Owner    of     Horse     Entering 

Stable  to  Remove  without  Payment  of 

Lien,  see  Burglary,  4. 


AGREED  CASE. 


On  Appeal,  see  Appeal  and  Error,  397. 

.ludgment  on  Appeal  on,  see  Appeal  and  Er- 
ror, 1177. 

Admissibility  of,  see  Evidence,  903. 

Matters  Concluded  by  Judgment,  on,  see 
Judgment,  163. 

1.  A  statute  providing  for  the  submis- 
sion of  causes,  without  action,  upon  agreed 
statements  of  fact,  is  applicable  to  contro- 
versies which  are  within  the  original  juris- 
diction of  the  supreme  court.  Carolina 
(hocery  Co.  v.  Burnet,  61  S.  C.  205.  39  S. 
E.  381,  58:  687 

2.  The  provision  of  N.  Y.  Code  Civ.  Proc. 
ij  532,  that  it  is  sufficient,  in  pleading  a  judg- 
ment or  other  determination  of  a  court  or 
orticer  of  special  jurisdiction,  to  state  that 
the  same  has  been  duly  given  or  made,  may 
be  applied  to  a  statement  of  facts  upon 
■which   a  controversy  is  submitted  under  § 


1279.    Brownell  v.  Greenwich,  114  N.  Y.  518, 
22  N.  E.  24,  4:  685 

3.  The  expression  "duly  adjudged,"  in  a 
statement  for  the  submission  of  a  contro- 
versy with  respect  to  the  validity  of  town 
bonds,  which  declares  that  the  county  judge 
•'duly  adjudged,  determined,  and  orderetl." 
means  adjudged  according  to  law, — that  is, 
according  to  the  statute  governing  the  sub- 
ject,— and  implies  the  existence  of  every 
fact  essential  to  perfect  regularity  of  pro- 
cedure and  to  confer  jurisiiction  both  of  the 
subject-matter,  and  of  the  parties  affected 
by   the   juagment.  Id. 

4.  An  admission  in  an  agreed  statement  of 
facts  that  under  the  laws  of  another  state 
a  claim  has  been  allowed  by  its  courts 
against  a  decedent's  estate  does  not  admit 
that  the  claim  is  valid  and  enforceable  under 
the  laws  of  the  state  where  it  is  sought  to 
be  enforced  against  real  property  belonging 
to  the  estate.  Smith  v.  Smith,  174  111.  52, 
50  N.   E.   1083,  43:  403 

5.  A  statement  in  an  agreed  statement  of 
facts  in  a  proceeding  for  violation  of  an  or- 
dinance regulating  the  keepin»  of  dogs,  that 
the  sum  exacted  for  the  privilege  of  keeping 
them  is  intended  as  a  tax  for  revenue,  is 
not  binding  on  the  courts  where  the  ordi- 
nance shows  that  it  is  a  license  fee.  Gib- 
son V.  Harrison,  69  Ark.  385,  63  S.  W.  999, 

54:  268 

6.  An  agreed  case  in  wliich  an  insolvent's 
assignee  asserts  the  right  to  recover  a  depos- 
it, or,  if  not,  to  have  it  charged  up  as  cash 
paid  on  a  pro  rata  distribution  of  the  in- 
solvent's assets,  is  in  effect  a  suit  by  the 
assignee,  and  the  filing  of  the  agreed  case 
is  the  commencement  of  a  suit  within  a  rule 
fixing  the  legal  rights  of  the  parties  to  a 
suit  at  the  time  of  its  commencement. 
Nashville  Trust  Co.  v.  Fourth  Nat.  Bank, 
91  Tenn.  336,  18  S.  W.  822,  .  15:  710 
Judgment  on. 

7.  No  judgment  can  be  rendered  in  a  case 
submitted  to  the  court  for  its  opinion  upon 
an  agreed  statement  of  facts,  unless  a  re- 
quest for  judgment  is  distinctly  made  in  the 
agreed  case.  Tyson  v.  Western  Nat.  Bank, 
77  Md.  412,  26  Atl.  520,  23:  161 
Withdrawal  of  submission. 

8.  The  exercise  of  the  power  of  a  trial 
court  to  permit  parties  to  withdraw  from 
written  stipulations  waiving  a  jury  and 
submitting  the  cause  upon  an  agreed  state- 
ment of  facts  to  the  court  rests  in  its  dis- 
cretion, and  such  jKJwer  is  properly  exercised 
where  the  application  is  made  before  the 
court  has  decided  the  cause  under  the  writ- 
ten submission,  and  the  party  applying 
has  discovered  other  pertinent  facts  since 
the  submission  was  entered  into,  which  the 
other  party  declines  to  embrace  in  the 
agretni  statement ;  and  the  lact  that,  by  the 
exercise  of  due  diligence,  the  omitted  facts 
might  have  been  discovered  before  the  sub- 
mission was  entered  into,  does  not  deprive 
the  court  of  the  power  to  grant  the  appli- 
cation to  withdraw.  Hartford  F.  Ins.  Co.  v. 
Redding,  47  Fla.  228,  37  So.  62,  67:  518 


AGRICULTURAL    COLLEGE— ALABAMA    CLAIMS. 


AGRICULTURAL  COLLEGE. 

Appointment  or  Removal  of  OflScers  of,  see 

Officers,  49,  50,  126,  161. 
Liability  to  Suit,  see  State  institutions,  9. 


AGRICULTURAL  SOCIETIES. 
See  also  Mandamus,  70. 

1.  Agricultural  societies  are  not  corpora- 
tions within  the  ordinary  meaning  of  the 
term,  but  rather  agencies  adapted  by  the 
state  for  the  purpose  of  promoting  the  in- 
terests of  agriculture  and  manufacturing. 
State  ex  rel.  Custer  County  Agri.  Soc.  &  L. 
S.  Exch.  V.  Robinson,  35  Neb.  401,  53  N.  W. 
213,  17:  383 
Liability. 

For  Arrest  by  Officers  of,  see  False  Impris- 
onment, 20. 

2.  A  county  agricultural  society  organ- 
ized under  Ohio  act  February  28,  1846,  is 
not  exempt  from  liability  for  an  injury  re- 
ceived by  a  person  attending  its  annual  fair, 
on  account  of  its  negligence  in  erecting 
seats  on  its  fair  grounds.  Dunn  v.  Brown 
County  Agri.  Soc.  46  Ohio  St.  93,  18  N.  E. 
496,  1 :  754 

3.  A  state  agricultural  society,  which  is 
one  of  the  agencies  of  the  state,  and  not  a 
corporation  for  pecuniary  profit,  cannot  be 
held  liable  for  the  wilful  and  illegal  acts  of 
its  agents,  as  in  case  of  wilful  arrests  and 
assaults.  A'Hern  v.  Iowa  State  Agri.  Soc. 
91  Iowa,  97,  58  N.  W.  1092,  24:  655 
Contributions  to. 

4.  Annual  contributions  by  the  state  to  a 
state  agricultural  society  which  is  required 
to  report  to  the  state  are  not  sufficient  to 
make  it  a  public  corporation  for  the  sole 
purpose  of  discharging  a  governmental  func- 
tion, on  account  of  which  it  will  be  exempt 
from  liability  to  persons  injured  by  its  neg- 
ligence. Lane  v.  Minnesota  State  Agri.  Soc. 
62  Minn.  175,  64  N.  W.  382,  29:  708 

5.  The  provision  of  Neb.  Comp.  Stat.  chap. 
2,  §  12,  entitled  "Agriculture,"  for  the  pay- 
ment to  agricultural  societies  complying 
with  the  provisions  thereof,  of  a  sum  equal 
to  3  cents  for  each  inhabitant,  from  the 
county  general  fund  of  the  several  counties, 
does  not  conflict  with  the  provisions  of  Neb. 
Con<»t.  art.  3,  §  15,  as  to  local  or  special 
laws.  State  ex  rel.  Custer  County  Agri.  Soc. 
&  L.  S.  Exch.  V.  Robinson,  35  Neb.  401,  53 
N.  W.  213,  .  17:  383 
Board  of  agriculture. 

6.  A  state  board  of  agriculture,  created  a 
body  corporate  with  peri>etual  succession, 
including  as  ex  oflicio  members  the  presi- 
dent of  each  county  agricultural  society, 
and  which  is  in  a  sense  an  educational  insti- 
tution, required  to  hold  an  annual  meeting 
and  receive  repxjrts  from  county  societies 
and  make  an  annual  report  to  the  legisla- 
ture, its  funds  having  been  received  for  the 
most  part  from  other  sources  than  the 
state,  is  a  private,  and  not  a  public,  corpo- 
ration, although  no  shares  of  stock  are  is- 


sued.     Downing  v.  .Indiana    State   Bd.   of 
Agri.  129  Ind.  443,  28  N.  E.  123,         12:  6G4 


AGRICULTURAL  STATION. 

Use  of  County  Funds  for  Building  sA, 
Counties,  68. 


^•» 


AGRICULTURE. 
See  Department  of  Agriculture. 

♦<-♦ . 

AIDERS  AND  ABETTORS. 
See  Criminal  Law,  47. 

♦*-• 

AIR. 

Easement  of,  see  Alleys,  3,  6;  Covenant, 
32-34;  Easements,  11,  49-54,  65,  81, 
107;  Eminent  Domain,  367,  375;  High- 
ways, 38-41,  55,  390. 

Editorial  Notes. 

Servitude  of  light  and  air.     11:  634;*    14: 

370,  371. 
Injury  to  easements  of  light  and  air.     14: 

370,  383. 
Obstructing;  effect  of  bad  motive.    62:  683. 


AIR  BRAKES. 


Requiring  Street  Cars  to  Use,  see  Municipal 
Corporations,   187-189. 


ALABAMA  CLAIMS. 

Authority  of  Attorneys  as  to,  see  Attorneys, 
13,  14. 

Attorney's  Interest  in,  see  Attorneys,  80,  83. 

Effect  of  Bankruptcy  on,  see  Bankruptcy,  24. 

Note  Conditioned  on  Payment  of,  see  Bills 
and  Notes,  272. 

Champerty  in  Connection  with,  see  Cham- 
perty, 12. 

As  Assets  for  Administration,  see  Executors 
and  Administrators,  16. 

1.  The  judges  of  the  Court  of  Commission- 
ers of  Alabama  Claims  hold  their  offices 
while  the  court  continues  to  exist,  unless 
they  are  lawfully  removed  therefrom;  and 
where,  before  the  expiration  of  the  time 
for  which  the  court  was  first  created,  Con- 
gress continues  it  for  a  further  period,  they 
will  continue  to  be  judges  during  such 
extended  period  without  the  necessity  of  a 
reappointment.  Manning  v.  French,  149 
Mass.  391,  21  N.  E.  945,  4:  339 

2.  The  fees  of  a  commissioner  of  the 
Court  of  Commissioners  of  Alabama  Claims 
are  not  regulated  by  U.  S.  Rev.  Stat.  §  847. 


ALCOHOL— ALIENS,  L 


87 


relating  to  commissioners*  fees.     Powers  v. 
Manning,  154  Mass.  370,  28  N.  E.  290, 

13:  258 
Editorial  Notes. 

Genera  award;  right  of  assignees;  war 
premiums;  claims  against 
indemnity  fund;  compen- 
sation for  collection;  rights 
•  of    representatives   of   de- 

ceased claimant;  jurisdic- 
tion and  procedure;  liti- 
gation as  to  title  to  fund. 
3:460.* 

Oomm'i8si<mers  of.     13:  258.*  ' 


ALCOHOL. 

Aa  Spirituous  Liquor,  see  Intoxicating  Li- 
quors, 91,  93. 


ALCOHOLISM. 

See  Dmnkenness. 

<  *  » 


ALDERMEN. 

Slander  by  Testimony  before  C!ommittee  of, 
see  Libel  and  Slander,  133-135. 

Interest  of,  as  Affecting  Vote,  see  Parlia- 
mentary Law,  27,  28. 


ALE. 

Editorial  Notes. 


"Ab  intoxicating  liquor.    20:  647. 


ALIBI. 

Burden  of  Proving,  see  Evidence,  231. 

Editorial  Notes. 
Burden  and  measure  of  proof  as  to.    41 :  530. 


ALIENATION. 


Suspension  of  Power  of,  see  Perpetuities. 

Editorial  Notes^ 

ProTision  against  alienation  of  interest  of 
cestui  que  trust.    2:  113.* 


ALIENATION  OF  AFFECTIONS. 

Of  Husband,  see  Husband  and  Wife,  208- 
224. 

Of  Wife,  see  Husband  and  Wife,  199;  Par- 
ties, 177. 

Of  Affianced,  see  Seduction,  3. 


Editorial  Notes. 


Right  of  wife  to  maintain  action  for  alien- 
ation of  husband's  affec- 
tions.    6:  553;*   10:  468.' 


ALIENS. 

I.  In  General;  Immigration;  Deportation. 
II.  Naturalization. 

III.  Property  Eights. 

IV.  Editorial  Notes. 

Conflict  of  Laws  as  to  Status  of,  see  Con- 
flict of  Laws,  152. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  II.  a,  2,  b. 

Illegality  of  Contract  Not  to  Rent  to,  see 
Contracts,  382. 

As  Directors  of  Corporations,  see  Corpora- 
tions, 219. 

JurisQiction  Over  Real  Property  of,  see 
Courts,  57. 

Right  to  Recover  for  Death  of  Relative,  see 
Death,  12-15. 

Burden  of  Proving  Status,  see  Evidence, 
250. 

Proof  of  Foreign  Citizenship,  see  Evidence, 
2280. 

As  to  Expatriation,  see  Expatriation. 

Obtaining  Jurisdiction  by  Service  on,  see 
Judgment,  20. 

Right  to  Hold  Office,  see  Officers,  15,  21,  22. 

Right  to  Vote  at  School  Meeting,  see 
Sohools,  80-83. 

Tax  on,  see  Constitutional  Law,  562;  Taxes, 
32. 

Effect  of  Treaty  on  Status  of,  see  Treaties. 


L  In  General;  Immigration;  Deportation. 

1.  The  relation  of  husband  and  wife  is 
not  inconsistent  with  one  being  a  citizen 
and  the  other  an  alien.  Comitis  v.  Parker- 
son,  56  Fed.  556,  22:  148 
Immigration;  deportation. 

Effect  of  Treaty  as  to,  see  Treaties,  1. 

2.  The  wife  and  children  of  a  Chinese  mer- 
chant, who  is  entitled,  under  the  treaty  of 
1880,  art.  2,  and  act  of  Congress  1884,  §  6, 
to  come  within  and  dwell  in  the  United 
States,  are  entitled  to  come  into  the  country 
with  him  or  after  him,  as  such  wife  and 
children,  without  the  certificate  prescribed 
in  said  §  6.  Re  Chung  Toy  Ho,  14  Sawy. 
531,  42  Fed.  398,  9:  204 

3.  No  authority  is  given  to  a  United 
States  marshal  to  remove  a  Chinese  person 
from  the  district  in  which  he  is  found  to 
another  district,  and  there  imprison  him, 
with  a  view  to  returning  him  to  the  country 
whence  he  came,  by  a  mere  finding  of  a  cir- 
cuit court  commissioner  that  he  was  not 
lawfully  entitled  to  be  or  remain  in  the 
United  States,  without  the  entry  of  any 
formal  judgment  thereon  or  any  direction 
to  the  marshal  as  to  his  removal.  People 
v.  Ah  Teung,  92  Cal.  421,  28  Pac.  577, 

15:  190 
Head  money. 

4.  Head  money,  at  the  rate  of  50  cents  per 


38 


ALIENS,   II.,  III. 


passenger  paid  by  owners  of  a  Danish  ves- 
sel on  foreign  passengers  landed  by  it,  was 
not,  by  reason  of  the  treaty  with  Denmark, 
or  U.  S.  Rev.  Stat.  §  4227,  U.  S.  Comp.  Stat. 
1901,  p.  2855,  illegal,  improper,  or  excessive; 
and  the  Secretary  of  the  Treasury  has  no 
authority  to  refund  it.  Thingvalla  Line  v. 
United  States,  24  Ct.  CI.  255,  5:  135 


II.  Naturalization. 

Effect  of,  on  Right  to  Hold  Office,  see  Offi- 
cers, 21. 

Effect  of,  on  Right  to  Registration,  see  Elec- 
tions, 51. 

Jurisdiction  over,  see  Courts,  260-262. 

Admissibilitv  of  Certificate  of,  see  Evidence, 
841. 

Collateral  Attack  on  Judgment,  see  Judg- 
ment,  122. 

Laches  Preventing  Vacation  of  Order  of,  see 
Limitation  of  Actions,  39. 

For  Editorial  Notes,  see  infra,  IV.  §  1. 

Power  of  Congress  as  to. 

See  also  infra,  12. 

5.  Congress  cannot,  without  the  consent 
of  the  state,  constrain  the  state  courts  to 
entertain  or  act  upon  applications  for  nat- 
uralization. State  ex  rel.  Rushworth  v. 
Judges  of  Inferior  Ct.  (N.  J.  Sup.)  58  N.  J. 
L.  97,  32  Atl.  743,  30:  761 
Eligibility. 

6.  It  is  the  duty  of  the  court  to  judge  of 
the  moral  character  and  other  qualiticaiions 
prescribed  by  law  of  an  applicant  for  citi- 
zenship. He  should  have  sufficient  intelli- 
gence to  understand  the  principles  of  the 
government  of  the  United  States  and  its 
institutions.  Re  Kanaka  Nian,  6  Utah,  259, 
21   Pac.  993,  4:  726 

7.  An  alien  who,  although  he  knows  that 
the  United  State«  has  a  President,  and  that 
Wasihington  was  President  once,  does  not 
know  who  fills  that  office  now,  and  cannot 
read  or  write  English,  though  he  has  read 
the  Constitution  in  his  own  language,  does 
not  understand  the  principles  of  the  United 
States  government  or  its  institutions  suffi- 
ciently to  become  a  citizen,  under  the  re- 
<iuirement3  of  U.  S.  Rev.  Stat.  §  2165,  U.  S. 
Comp.  Stat.  1901,  p.  1329.  Id. 

8.  Members  of  the  Japanese  race  are  not 
entitled  to  become  citizens  of  the  United 
States.  Re  Yamashita,  30  Wash.  234,  70 
Pac.  482,  59:671 

9.  A  Kanaka  from  tlie  Hawaiian  islands 
is  not  a  member  either  of  the  white  or  of 
the  African  race,  whieli  by  U.  S.  Rev.  Stat. 
1878,  §  2169,  U.  S.  Comp.  Stat.  1901,  p.  1333, 
are  the  only  persons  allowed  to  become  citi- 
zens. And  that  section  was  not  by  implica- 
tion enlarged  by  the  statute  expressly  pre- 
cluding the  Chinese  from  citizenship.  Re 
Kanaka   Nian,  6  Utah,  259,  21   Pac.  993, 

4:  726 
Declaration  of  intention. 

10.  A  declaration  of  intention  to  become  a 
citizen,  made  before  a  clerk  of  a  court,  need 
not  be  made  in  his  office  or  in  open  court. 
Andres  v.  Ottawa  County  Circuit  Ct.  Judge. 
77  Mich.  85,  43  N.  W.  857.  G:  238 


Time  for  application. 

11.  The  state  legislature  may  by  statute 
prescribe  and  limit  the  times  when  and  dur- 
ing which  applications  for  naturalization 
may  be  heard  in  the  state  courts.  State  ex 
rel.  Rushworth  v.  Judges  of  Inferior  Ct. 
(N.  J.  Sup.)    58  N.  J.  L.  97,  32  Atl.  743, 

30:  761 
By  marriage  of  woman. 
See  also  Schools,  81,  82. 
For  Editorial  Notes,  see  infra,  IV.  §   1. 

12.  ihe  power  of  Congress  to  enact  a  uni- 
form rule  of  naturalization  throughout  the 
United  States  authorizes  the  provision  of  U. 
S.  Rev.  Stat.  §  1994,  U.  S.  Comp.  Stat.  1901, 
p.  1269,  that  the  marriage  of  an  alien  wom- 
an with  a  citizen  will  make  her  a  citizen. 
Dorsey  v.  Brigham,  177  111.  250,  52  N.  E. 
303,  42:  809 

13.  A  foreign-born  woman  becomes  a  citi- 
zen by  marrying  a  citizen  of  the  United 
States.  •  Id. 
Setting  aside. 

Collateral   Attack   on  Judgment,  see   Judg- 
ment,  122. 

14.  A  private  individual  has  no  standing 
in  court  to  institute  a  proceeding  to  set 
aside  an  order  admitting  an  alien  to  citi- 
zenship. Re  McCarran  (N.  Y.  C.  P.)  8  Misc. 
482,  29  N.  Y.  Supp.  582,  23:  835 


m.  Property  Rights. 

As  to  Inheritance  by  or  through  Aliens,  see 
Descent  and  Distribution,  I.  b. 

Right  to  Partition,  see  Partition,  1. 

Special  Legislation  as  to,  see  Statutes,  294. 

Tax  on  Succession  by  Foreign  Heirs,  see 
Taxes,  629. 

For  Editorial  Notes,  see  infra,  TV.  §  2. 

15.  The  word  "citizens,"  as  used  in  the 
Kansas  Bill  of  Rights,  §  17,  prior  to  the 
amendment  of  1888,  prohibiting  any  distinc- 
tion between  citizens  and  aliens  in  reference 
to  the  purchase,  enjoyment,  or  descent  of 
property,  means  citizens  of  Kansas;  and  the 
word  "aliens"  means  persons  born  out  of 
the  United  States  and  not  naturalized. 
Buffington  v.  Grosvenor,  46  Kan.  730,  27 
Pac.  137,  13:282' 

16.  The  most  favored  nation  clause  in  the 
treaty  between  Italy  and  the  United  States 
entitles  the  citizens  and  subjects  of  Italy  to 
the  same  right  to  acquire  and  dispose  of 
pix>perty  in  this  country,  whether  by  dona- 
tion, testament,  or  otherwise,  that  French- 
men possess  under  the  treaty  with  France 
giving  them  the  same  rights  in  this  matter 
that  citizens  of  the  United  States  have. 
Rixner's  Succession,  48  La.  Ann.  552,  19  So. 
597,  32:  177 

17.  Conveyances  made  to  a  corporation 
when  a  majority  of  the  stock  was  owned  by 
citizens  will  be  declared  void  where  a  ma- 
jority of  the  stock  is  transported  to  and 
held  by  aliens  under  Wash.  Const,  art.  2,  § 
33,  prohibiting  the  ownership  of  land  by 
aliens  and  providing  that  all  conveyances  of 
lands  to  anj-  alien  directly  or  in  trust  shall 
be  void,  and  that  every  corporation  the  ma- 


ALIENS,    IV.— ALLEYS. 


jority  of  the  capital  stock  of  which  is  owned 
by  aliens  shall  be  considered  an  alien  for 
the  purpose  of  such  prohibition.  State  ex 
rel.  Winston  v.  Hudson  Land  Co.  19  Wash. 
85,  52  Pac.  574,  40:430 

Purchase  by  or  from. 
Sale  of  Inherited   Lands,   see   Descent   and 

Distribution,  25,  26. 
See  also  infra,  21,  22. 

18.  Mortgages  are  purchases,  within  the 
meaning  of  Iowa  Code,  §  2442,  protecting 
purchasers  from  nonresident  aliens  against 
claims  for  dower.  Re  Gill's  Estate,  79  Iowa, 
296,  44  N.  W.  553,  -,    9:  126 

19.  The  word  "purchase"  includes  an  ac- 
quisition by  devise  in  N.  Y.  Laws  1875, 
chap.  38,  providing  that,  if  a  citizen  or  alien 
resident  who  shall  purchase  and  take  a  con- 
veyance of  real  estate  within  the  state  shall 
die  intestate  leaving  persons  who  according 
to  the  statutes,  would  answer  the  descrip- 
tion of  heirs  to  him,  such  persons,  although 
aliens,  shall  be  capable  of  taking  and  hold- 
ing as  heirs  all  the  real  estate  owned  by 
him  at  the  time  of  his  death.  Stamm  v. 
Bostwick,  122  N.  Y.  48,  25  N.  E.  233,  9:  597 
Lease. 

20.  A  lease  of  land  for  forty-nine  years  to 
an  alien  is  void  under  Wash.  Const,  art.  2, 
§  33,  prohibiting  the  ownership  of  lands  by 
aliens  and  providing  that  all  conveyances 
of  land  to  any  alien  shall  be  void.  State  ex 
rel.  Winston  v.  Hudson  Land  Co.  19  Wash. 
85,  52  Pac.  574,  40:  430 
Alien  corporation. 

See  also  supra,  17. 

21.  A  deed  of  land  by  an  alien  corporation 
may  convey  an  indefeasible  title  notwith- 
standing bad  faith  of  the  corporation  in  ac- 
quiring the  l"nd  in  evasion  of  a  constitu- 
tional prohibition,  if  the  state  has  not  under- 
taken to  have  the  conveyance  set  aside  or 
adjudged  invalid.  Oregon  Mortg.  Co.  v. 
Carstens,  16  Wash.  165,  47  Pac.  421,    35:  841 

22.  The  right  of  an  alien  corporation  to  ac- 
quire land  "under  a  mortgage"  as  permitted 
by  an  exception  to  the  prohibition  of  Wash. 
Const,  art.  2,  §  33,  against  the  acquisition  of 
real  estate  by  aliens,  includes  the  acquisition 
by  a  direct  deed  from  the  mortgagor  of  t)ie 
land  in  satisfaction  of  the  mortgage  debt,  if 
this  was  done  in  good  faith  and  the  original 
purpose  oi  taking  the  mortgage  was  not  to 
acquire  title  to  the  land.  Id. 


rv.  Editorial  Notes. 

§  1.  Generally. 

Treaty  guaranties  to.     16:277. 

Disabilities  of.     12:  532.* 

Right  to  equal  protection  of  laws.     14:  583. 

As  grand  jurors.    28:   195. 

Alienage  of  juror  as  ground  for  new  trial. 

18:  476. 
Right  of  action  for  dcith  of  other  person. 

54:  934. 
Powers  of  state  legislatures  and  courts  in 

respect   to   naturalization. 

30:  761. 


Power  of  Federal  government  to  confer 
power  on  state  courts.  30: 
762. 
What  state  courts  may  act.     13:  229; 
30:  763. 

Jurisdiction  of  state  courts  over  natural- 
ization proceedings.   48:  36 

Effect  of  marriage  on  wife's   status  as  an 
alien.     22:  148. 
The  ancient  doctrine.     22:  148. 
The   doctrine    since    the    enactment    of 
modern  statutes.    22:  149. 

§  2.  Inheritance. 

Ali«n's  right  to  inherit.    31:  177. 

Effect  of  treaties  upon  alien's  right  to  in- 
herit.   32:  177. 

Effect  of  state  Constitutions  and  statutes 
upon  inheritance  by  oi 
from  an  alien.     31:  85. 

Effect  of  state  statutes  and  Constitutions 
upon  inheritance  through 
an  alien.    31 :  146. 

Effect  of  naturalization  on  alien's  right  to 
inherit.    31:  181. 


ALIMONY. 

See  Divorce  and  Separation,  V.;  EX.  §§  16- 
21. 


ALLEYS. 

Condemnation  for,  see  Eminent  Domain,  209. 

Title  of  Public  to,  see  Highways,  24,  25. 

Injunction  against  Obstruction  of,  see  In- 
junction, 185. 

Exercise  of  Power  to  Convey  Right  to  Use, 
see  Powers,  9. 

Improvement  of,  see  Public  Improvements, 
9,  179. 

Assessment  for  Grading,  see  Public  Improve- 
ments, 179. 

1.  Where  the  alleys  of  a  city  have  been 
dedicated  to  the  public,  no  further  action  ii 
required  by  the  city  to  open  them  for  public 
use.  Osage  City  v.  Larkina,  40  Kan.  206,  19 
Pac.  658,  2:  56 

2.  An  alley  retains  its  character  as  an  al- 
ley, although  the  lots  on  both  sides  thereof 
are  owned  by  one  person,  and  it  is  so  inter- 
sected by  a  railroad  as  to  make  it  practi- 
cally impassable.  Id. 
Rights  of  abutting  owner. 

Easement  in,  see  Easements,  65,  85,  86,  101, 
107-109. 

3.  Special  damages  are  caused  to  an  abut- 
ting owner  by  an  overhead  bridge  across  a 
public  alley  or  street,  when  the  light  and  air 
passing  to  his  property  over  such  alley  will 
be  seriously  diminished  bv  the  structure. 
Field  v.  Barling,  149  111.  556,  37  N.  E.  850, 

24:  40(i 

4.  The  right  to  make  a  bridge  or  o^^erhead 
crossing  over  a  public  alley  for  private  use 
cannot  be  granted  by  city  authorities,  al- 
though the  fee  of  the  alley  belongs  to  the 
city.  Id. 


40 


ALLOTMENT— ALTERATION  OP  INSTRUMENTS,  L 


5.  The  right  of  an  abutting  owner  who 
has  bought  with  reference  to  a  dedicated 
public  alley  or  street,  to  have  it  forever  kept 
open,  includes  the  enjoyment  of  light  and  air 
from  the  space  above  extending  unobstruct- 
ed to  the  sky.  Id. 

6.  The  easement  of  an  abutting  owner  in 
a  public  alley  laid  out  by  the  original  grant- 
or of  the  land,  who  conveyed  it  with  refer- 
ence to  the  alley  as  a  boundary,  cannot  be 
taken  away  for  private  use  by  an  ordinance 
closing  the  alley.  Van  Witsen  v.  Gutman, 
79  Md.  405,  29  Atl.  608,  24:  403 
Personal  injuries  in. 

7.  An  attempt  without  good  cause  to  walk 
through  an  unlighted  alley  in  the  night  is 
such  negligence  as  to  preclude  a  recovery  for 
injuries  received  by  falling  into  an  unguard- 
ed area.  Ely  v.  Des  Moines,  85  Iowa,  55, 
52  N.  W.  475,  17:  124 

8.  An  alley  not  opened  for  public  use, 
or  used  in  fact  as  an  alley,  and  which  ex- 
ists only  on  a  recorded  p'.at  of  a  city  addi- 
tion, is  not  within  ordinances  prohibiting 
uncovered  excavations  near  an  alley  or  other 
public  place,  or  vehicles  therein.  Hunter  v. 
Weston,  Hi  Mo.  176,  19  S.  W.  1098, 

17:  633 

<  »  » 


ALLOTMENT. 
Of  Homestead,  see  Homestead,  V. 
♦  « » 
ALLOWANCE. 

Against   Decedent's   Estate,   see  Executors 

and  Administrators,   136. 
To  Widow  of  Nonresident,  see  Executors  and 

Administrators,  175. 


♦  •» 


ALLUVION. 

Compensation  for  Loss  of,  see  Waters,  216. 

#  »  > 

ALMANAC. 

Editorial  Note& 

As  Evidence.    40:  560. 

Judicial  notice  of  facts  stated  in.    4:  35.* 


ALMS  HOUSE. 


Liability  of  Physicians  in,  see  Physicians 
and  Surgeons,  45. 


ALTERATION. 


Of  Highways,  see  Highways,  V.  b.  • 
Revocation  of  Will  by,  see  Wills,  57-61. 


ALTERATION  OF  INSTRUMENTS. 

I.  In  General. 
IL  Bills  and  Notes. 

a.  In  General. 

b.  What  Alterations  are  MateriaL 
m.  Editorial  Notes. 

Bank's  Liability  for  Loaning  Money  on 
Raised  Collateral,  see  Banks,  292. 

Presumption  and  Burden  of  Proof  as  to,  see 
Evidence,  690-094. 

As  to  Forgery  Generally,  see  Forgery. 

Effect   of  Guaranty,   see   Guaranty.  28. 

As  Proximate  Cause  of  Injury,  see  Proxi- 
mate Cause,  133. 

Question  for  Jury  as  to,  see  Trial,  251. 


L  In  GeneraL 

1.  Changes  made  in  a  contract  by  stran- 
gers to  it,  however  material,  are  ineffective 
to  give  to  the  instrument  any  other  or  differ- 
ent meaning  or  operation  than  that  which 
attached  to  it  before  such'  intermeddling. 
Anderson  v.  Bellinger,  87  Ala.  334,  6  So.  82, 

4:680 

2.  An  alteration  may  be  made  in  an  in- 
strument by  words  added  thereto  which  are 
not  literally  incorporated  in  the  body  tliere- 
of.  Sanders  v.  Bagwell,  32  S.  0.  238,  10  S. 
E.  946,  7:743 

3.  The  unauthorized  insertion  of  the  word 
"gold"  before  the  word  "dollars"  in  an  in- 
sti-ument,  after  its  execution  and  delivery, 
is  a  material  alteration.  Foxworthy  v. 
Colby,  64  Neb.  216,  89  N.  W.  800,  62:  393 
Bonds. 

Erasure  of  Names  of  Sureties  on,  see  Prin- 
cipal and  Surety,  18-20. 

4.  A  surety  has  the  right  to  stand  upon 
the  very  terms  of  his  contract;  his  contract 
cannot  be  changed  in  any  respect,  whether 
a  subsequent  alteration  is  or  is  not  to  his 
benefit  is  not  open  to  inquiry.  An  altera- 
tion, however,  in  order  to  operate  as  a  dis- 
charge of  the  surety,  must  be  material,  and 
change  the  legal  import  of  the  instrument. 
Anderson  v.  Bellinger,  87  Ala,  334,  6  So.  82, 

4:680 

5.  After  the  sheriff  has  received  and  ap- 
proved a  bond  given  in  a  claim  suit,  the  sub- 
sequent signature  of  another  surety  thereto 
will  not  vitiate  the  bond  or  release  the  for- 
mer surety.  Id. 

6.  The  doctrine  of  spoliation  has  nothing 
to  do  with  the  question  of  the  effect  of  eras- 
ing the  name  of  a  surety  betore  the  approval 
of  a  bond,  upon  the  liability  of  other  sure- 
ties. State  v.  McGonigle,  101  Mo.  353,  13  S. 
W.  758,  8:  735 

7.  Alteration  of  a  bond  after  execution,  by 
an  agent  of  the  obligee  without  authority, 
express  or  implied,  will  not  avoid  it.  White 
Sewing  Machine  Co.  v.  Dakin,  86  Mich.  681, 
49  N.  W.  583,  13:  313 

8.  The  interlineation  ot  an  agreement  to 
pay  attorneys'  fees,  in  that  clause  of  a  bond 
to  secure  an  agent's  possible  indebtedness  to 
his   principal,    in   which   the    obligors   bind 


ALTERATION  OF  INSTRUMENTS,   II.  a. 


41 


themselves  to  pay  the  penalty,  which  has 
been  fixed  at  a  definite  amount,  is  not  a 
material  alteration  which  will  avoid  the 
bond,  under  a  statute  providing  that  judg- 
ment in  case  of  breach  shall  be  entered  for 
the  penalty,  and  execution  issued  for  the 
damages  assessed  by  the  jury,  not  to  exceed 
the  penalty,  as  it  cannot  afl'ect  the  judgment 
or  amount  of  damages  assessed.  Id. 

Mortgages. 
See  also  infra,  21. 

9.  An  alteration  in  a  mortgage,  made  by 
the  attorney  who  drew  it,  without  the 
knowledge  of  the  mortgagee  arid,  with  the 
purpose  of  procuring  the  assent  of  the 
mortgagor  and  his  reacknowledgment,  will 
not  invalidate  the  instrument.  Gleason  v. 
Hamilton,  138  N.  Y.  353,  34  N.  E.  283, 

21:210 


n.  Bills  and  Notes. 
a.  In  General. 

Bank's  Liability  on  Altered  Checks,  see 
Banks,  IV.  a,  3,  b,  2. 

Consideration  for  Ratification  of  Altered  In- 
strument, see  Bills  and  Notes,  45. 

Alleging  Ratification  of  Altered  Note,  see 
Pleading,  291. 

Presumption  and  Burden  of  Proof  as  to,  see 
Evidence,  691-694. 

Evidence  as  to,  see  Evidence,  2063,  2078. 

10.  The  same  rule  as  to  alteration  applies 
to  negotiable  promissory  notes  as  to  other 
instruments.  Wilson  v.  Haves,  40  Minn. 
531,  42  N.  W.  467,  "  4:  196 

11.  The  maker  of  a  negotiable  instrument 
complete  in  all  its  parts  is  not  bound  at  his 
peril  to  guard  against  the  commission  of 
forgery  by  one  into  whose  hands  such  instru- 
ment may  come.  Bank  of  Herington  v. 
Wangerin,  65  Kan.  423,  70  Pac.  330,  59:  717 
By  agent. 

See  also  supra,  7.        , 

12.  The  unauthorized  alteration  of  an  in- 
strument by  an  agent  with  whom  it  is  left 
to  be  delivered  does  not  bind  the  principal. 
Walsh  V.  Hunt,  120  Cal.  40,  52  Pac.  115, 

39:  697 

13.  An  alteration  of  an  obligation, 
amounting  to  forgery,  by  an  agent  of  the 
maker,  does  not  avoid  the  contract  in  its  en- 
tirety or  prevent  a  recovery  by  an  innocent 
holder  upon  it  in  accordance  with  its  origi- 
nal terms,  if  they  can  be  ascertained.         Id. 

14.  A  bank  which  issues  to  a  confidential 
clerk  and  employee  a  draft  upon  another 
bank,  upon  such  clerk's  representation  that 
he  desires  it  for  the  purpose  of  making  a  re- 
mittance, is  not  liable  to  a  bona  fide  holder 
of  such  draft  who  takes  it  after  it  has  been 
raised  by  such  clerk  to  a  larger  amount,  for 
the  increased  amount,  since  such  clerk  does 
not  in  raising  it  act  for  the  bank  or  in  his 
capacity  as  clerk.  Exchange  Nat.  Bank  v. 
Bank  of  Little  Rock,  19  U.  S.  App.  152,  7 
C.  C.  A.  Ill,  58  Fed.  140,  22:  686 
Effect. 

See  also  supra,  12-14;  infra,  IT.  b. 
For  Editorial  Notes,  see  infra.  III. 


15.  A  material  and  fraudulent  alteration 
of  a  promissory  note  defeats  any  recovery 
on  the  original  consideration  for  which  it 
was  given,  as  well  as  upon  the  note.  Wal- 
ton Plow  Co.  v.  Campbell,  35  Neb.  173,  52 
N.  W.  883,  16:  468 

16.  A  material  alteration  of  a  promissory 
note  by  any  of  the  parties  thereto  discharges 
from  liability  all  other  parties  not  consent- 
ing to  or  authorizing  the  alteration,  whether 
or  not  it  is  apparently  or  presumably  to 
their  benefit  or  detriment.  Montgomery  v. 
Crosthwait,  90  Ala.  553,  8  So.  498,      12:  140 

17.  A  material  alteration  of  a  promissory 
note  invalidates  the  paper  as  to  the  maker, 
who  has  not  assented  to  or  ratified  the 
change,  even  in  the  hands  of  a  bona  fide 
holder  for  value.  Erickson  v.  First  Nat. 
Bank,  44  Neb.  622,  62  N.  W.  1078,        28:  577 

18.  Signing  an  instrument  in  which  the 
amount  to  be  paid  is  written  in  pencil,  and 
leaving  it  with  an  agent  to  be  delivered  for 
a  loan,  do  not  constitute  negligence  or  render 
the  maker  liable  to  an  innocent  holder  for 
the  forgery  of  the  agent  in  raising  the  same. 
Walsh  v.  Hunt,  120  Cal.  46,  52  Pac.  115, 

39:  697 

19.  A  drawer  of  a  draft  or  note  complete 
in  itself,  but  in  such  form  as  to  be  easily  al- 
tered without  attracting  attention,  is  not 
liable  for  the  amount  to  which  it  is  after- 
wards fraudulently  raised  by  a  third  person 
without  his  knowledge  or  authority,  even 
to  an  innocent  purchaser,  since  it  is  not  his 
negligence,  but  the  crime  of  the  forger,  that 
is  the  proximate  cause  of  the  loss.  Ex- 
change Nat.  Bank  v.  Bank  of  Little  Rock,  19 
U.  S.  App.  152,  7  C.  C.  A.  Ill,  58  Fed.  140, 

22:  686 

20.  The  indorser  of  a  note  before  it  was 
signed,  who  gave  it  to  the  maker  to  be 
signed,  for  the  purpose  of  raising  money  for 
both  of  them,  is  not  released  as  indorser  by 
the  fact  that  the  maker  changed  his  signa- 
ture to  that  of  his  firm  by  adding  "&  Co." 
since,  so  far  as  the  indorser  was  concerned, 
he  could  have  signed  the  firm  name  in  the 
first  place.  Montgomery  v.  Crosthw.iit,  90 
Ala.  553,  8  So.  498,  12:  140 

21.  A  mortgage  is  discharged  by  the 
fraudulent  alteration  of  a  promissory  note 
which  is  secured  by  it.  Walton  Plow  Co.  v. 
Campbell,  35  Neb.  173,  52  N.  W.  883,  16:  468 
Subsequent  assent. 

For  Editorial  Notes,  see  infra,  III. 

22.  Where  the  holder  of  a  promissory  note 
makes  a  fraudulent  alteration  amounting 
in  law  to  a  forgery,  destroying  the  instru- 
ment and  extinguishing  the  debt,  a  subse- 
quent assent  by  the  maker  to  such  altera- 
tion, without  any  new  consideration,  will 
not  create  any  liability  upon  the  note  as  al- 
tered in  favor  of  the  holder  who  made  the 
fraudulent  alteration.  Wilson  v.  Hayes,  40 
Minn.  531,  42  N.  W.  467,  4:  I9ft 
Striking  out  alteration. 

23.  The  fraudulent  addition  after  indorse- 
ment of  a  promissory  note,  of  words  to  make 
it  payable  with  interest,  will  prevent  recov- 
ery from  the  indorser,  although  such  words 
have  been  stricken  out  before  they  come  in- 
to  the   hands   of   a  bona  fide   holder  who 


43 


ALTERATION  OF  INSTRUMEN1 S,   II.   b,  IIL 


brings  suit  upon  the  note.     Citizens'  Nat. 
Bank  v,  Williams,  174  Pa.  66,  34  Atl.  303, 

35:  464 

b.  What  Alterations  are  Material. 

What  Constitutes  Forgery,  see  Forgery,  7,  8. 
For  Editorial  Notes,  see  infra,  III. 

24.  An  application  for  insurance,  on  a  sin- 
gle sheet  containing  at  the  bottom  a  prom- 
issory note  intended  to  secure  assessments, 
is  a  single  contract  of  which  the  removal  of 
the  note  is  a  material  alteration,  so  that  it 
is  void,  even  in  the  hands  of  a  bona  fide 
holder,  although  the  note  is  written  below  a 
perforated  line,  if  the  general  appearance  of 
the  paper  is  such  that  the  applicant  is  not 
guilty  of  negli<ience  in  signing  it.  Rochford 
v.  McGee,  16  S.^D.  606,  94  N.  W.  695,  61:  335 
Altering  date. 

25.  An  alteration  of  the  date  of  a  promis- 
sory note  by  the  payee  without  the  maker's 
knowledge  or  consent  will  render  the  instru- 
ment void,  even  in  the  hands  of  an  innocent 
purchaser  for  value.  Newman  v.  King,  54 
Ohio  St.  273,  43  N.  E.  683,  35:  471 
Changing  rate  of  interest. 

See  also  supra,  23. 

26.  Inserting  the  figure  "8"  before  the 
words  "per  cent  interest,"  in  a  promissory 
note,  is  a  material  alteration.  Palmer  v. 
Poor,  121  Ind.  135,  22  N.  E.  984,  6:  469 

27.  An  addendum  written  below  the  signa- 
tures on  a  sealed  note  bearing  interest  at 
7  per  cent,  saying,  "The  above  note  is  to 
be  accounted  for,  with  interest  at  8  per  cent 
per  annum,"  and  signed  by  the  principal 
obligor  on  the  note, — constitutes  a  material 
alteration  which  will  avoid  the  note  as 
against  a  surety  thereon  who  did  not  consent 
to  the  alteration.  Sanders  v.  Bagwell,  32  S. 
C.  2.38.  10  S.  E.  946,  7:  743 

28.  The  alteration  without  authority  or 
direction  from  the  holder  of  a  note,  by  one 
of  the  makers,  changing  it  from  a  note  f  jr 
.$1,500  at  8  per  cent 'to  one  for  $1,590  at  12 
per  tent,  as  well  as  changing  the  date,  is  a 
material  alteration  which  discharges  an  ac- 
com7nodation  indorser  who  did  not  consent 
thereto.  Ruby  v.  Talbott,  5  N.  M.  251,  21 
Pac.  72,  3:  724 
Increasing  amount. 

See  also  supra,  28. 

29.  The  maker  of  a  negotiable  instrument 
which  is  delivered  to  the  payee  complete  in 
all  of  its  parts,  is  not  liable  thereon,  even 
to  an  innocent  holder,  after  the  same  has 
been  fraudulently  altered  so  as  to  express  a 
larger  amount  than  is  written  therein  at 
the  time  of  its  execution.  Bank  of  Hering- 
ton  V.  Wan^^'erin,  65  Kan.  423,  70  Pac.  330. 

59:  717 

30.  The  indorser  of  a  promissory  note 
which  is  complete  on  its  face, — the  sum  pay- 
able, the  date,  time  of  payment,  and  name 
■of  payee,  all  being  inserted, — who  delivers 
it  to  the  maker,  who  is  neither  his  agent  nor 
employee,  to  be  carried  to  the  payee,  is  not 
liable  to  a  Ixina  fide  holder  for  value  for  the 
increased  amount  of  the  note,  if  the  maker 
raises  it  before  delivering  it,  simply  because 


spaces  were  left  in  the  note  in  such  a  manner 
as  to  permit  the  words  and  figures  to  be  in- 
serted, and  thus  increase  the  amount  pay- 
able, and  readily  deceive  innocent  third  par- 
ties. Burrows  v.  Klunk,  70  Md.  451,  17  Atl. 
378,  3:  576 

Altering  name  of  maker. 

31.  The  fact  that  the  addition  of  "&  Co." 
to  the  maker's  name  on  a  note  is  ineffectual 
to  bind  his  partners  will  not  prevent  it  from 
being  a  material  alteration  as  to  an  in- 
dorser. Montgomery  v.  Crosthwait,  90  Ala. 
553,  8  So.  498,  12:  140 

32.  Adding  "&  Co."  to  his  name  by  the 
maker  of  a  note  is  a  material  alteration 
of  it,  which  will  release  the  indorser  if  done 
without  his  consent  or  authority.  Id. 
Adding  new  maker. 

33.  The  addition  by  the  payee,  after  deliv- 
ery of  a  note  to  him,  of  the  name  of  another 
person  as  comaker,  is  such  an  alteration  as 
relieves  the  maker.  Brown  v.  Johnson  Bros. 
127  Ala.  292,  28  So.  579,  51:403 
Inserting  or  changing  payee's  name. 

See  also  infra,  37. 

34.  The  holder  of  a  note  is  not  authorized 
to  insert  the  name  of  a  payee  on  the  theory 
that  he  is  authorized  to  fill  blanks,  where  no 
space  is  left  for  such  name,  but  the  words 
follow  each  other  in  close  order,  and  hiatus 
having  been  inadvertently  left  in  the  sense 
of  the  instrument.  Smith  v.  Willins,  123 
Wis.  377,  101  N.  W.  692,  68:  940 

35.  The  fraudulent  erasure  of  the  name  of 
the  original  payee  of  a  promissory  note  after 
its  execution,  by  a  party  to  the  instrument, 
and  the  substitution  of  another  name  with- 
out the  consent  of  the  maker,  is  a  material 
alteration.  Erickson  v.  First  Nat.  Bank,  44 
Neb.  622,  62  N.  W.  1078,  28:  577 
Inserting  word  "bearer." 

36.  An  unauthorized  alteration  of  a  non- 
negotiabie  note  by  the  payee,  by  inserting 
the  word  "bearer"  after  his  name,  is  a  mate- 
rial alteration  which  will  nullify  the  instru- 
ment. Walton  Plow  Co.  v.  Campbell,  35 
Neb.   173,  52  N.  W.  883,  16:  468 

37.  Filling  blanks  in  a  promissory  note 
bj'  the  insertion  of  the  words  "or  bearer," 
ind  of  the  name  of  the  bank  after  the  word 
"at,"  constitutes  a  material  alteration  which 
will  avoid  the  note  in  the  hands  of  an  inno- 
cent holder.  Simmons  v.  Atkinson  &  L.  Co. 
69  Miss.  862,  12  So.  263,  23:  599 


III.  Editorial  Notes. 

What  are  material.     4:  197;*  7:  743.* 
Filling  blanks.     1:  648;*  6:  469.* 
Ratification  of  altered  or  forged  note.     12: 

140.* 
Effect  of.     4:  190:*   6:  469;*  7:  743.* 
Effect  of  immaterial   alteration.     7:  743.* 
Kffcct  on  surety.     7:  743.* 
EHect  of  alteration  of  promissory  note,  gen- 
erally.      3:  724.* 
Effect   of  alteration  by   maker  to  dis- 
charge indorser.    3:726.* 
Change  in  date.     3:  725.* 
Change  in  amount.     3:  725.* 


AMBIGUITY— ANARCHIST. 


48 


Alteration  of  interest  clause.    3:  725." 
Inserting  a  place  of  payment.     3:  726.* 
Effect  of  consent  to  alteration.    3:  726.* 
Effect  of,  as  a  discharge.    4:  15)6,*  108.* 
Alteration  by  stransjer.     4:  196.* 
By  holder  of  bill  of  exchange.    4:  196.* 
By  agent.    4:  196.* 
Effect  upon  bona  fide  holder.    35:  464. 
Effect  on  mortgage  of  alteration  of  note  se- 
cured thereby.     16:  468. 
Liability  of  bank  to  depositor  for  payment 

of  altered  check.    2:  96.* 
Liability  of  maker  or  drawer  oq  raised  ne- 
gotiable paper.  <22:  686. 
Duty  of  party  producing  instrument  to  ac- 
count for  alteration*.    13: 
313.* 
Alteration  in  books  of  account,  as  affecting 
admissibility    in   evidence. 
52:  574. 
Forgery    by    altering    mere    memorandum. 
54:  794. 


AMBIGUITY. 

Parol  Evidence  to  Explain,  see  Evidence,  VI. 

e. 
In  Statute,  see  Statutes,  52-63. 


AMENDMENTS. 


On  Appeal,  see  Appeal  and  Error,  IV.  d ;  VII. 
c. 

In  Attachment  Suit,  see  Attachment,  50-52. 

Of  Consrtitutiim,  By-Laws,  etc.,  of  Benefit 
Society,  see  Benevolent  Societies,  24-37. 

Of  Charter,  see  Corporations,  72-77 ;  Munici- 
pal Corporations,  42-46. 

Of  Constitution,  see  Constitutional  Law,  I. 
a.  2;  Courts,  119-121;  Criminal  Law, 
123. 

Of  Statute  in  Election  Contest,  see  Elections, 
342-344. 

Of  Petition  in  Condemnation  Proceedings, 
see  Eminent  Domain,  177. 

Of  Execution,  see  Execution,  6. 

In  Garnishment  Proceedings,  see  Garnish- 
ment, 105. 

Of  Information,  see  Indictment,  etc.,  127. 

Of  Judgment,  see  Judgment,  I.  g. 

As  Affecting  Limitation  of  Action,  see  Limi- 
tation of  Actions,  237-244. 

Effect  of,  on  Purchaser  Pendente  Lite,  see 
Lis  Pendens,  21. 

In  Mandamus  Case,  see  Mandamus,  219. 

Of  Lien  Claim  or  Statement,  see  Mechanics' 
Liens,  116,   117. 

Of  Declaration  of  Location  of  Mining  Claim, 
see  Mines,  9;  10. 

Of  Ordinance,  see  Municipal  Corporations, 
81. 

Of  AfTidavit,  see  Oath,  5. 

Of  Pleading,  see  Divorce  and  Separation,  10; 
Parties,  220,  221 ;  Pleading,  I.  n;  Remov- 
al of  Causes,  51. 

Of  Statutes,  see  Statutes,  L  e.  3;  IIL  . 

Of  Verdict,  see  Trial,  V.  d. 

Of  Writs,  see  Writ  and  Process,  6,  7. 


AMERICAN  SUNDAY  SCHOOL  UNION. 

Exemption   of,   from   Taxation,   see   Taxes, 
311. 


♦  •» 


AMICUS  CURIJE. 

Application  by,  for  Rehearing,  see  Appeal 
and  Error,  1254. 

Notice  of  Motion  by,  see  Motions  and  Or- 
ders, 2. 

An  attorney  as  amicus  curice  may  move  to 
dismiss  an  action  as  collusive:  and  it  is  his 
duty  to  do  so  if  he  knows,  or  has  reason  to 
believe,  that  the  action  is  fictitious.  Haley 
V.  Eureka  County  Bank,  21  Nev.  127,  26  Pac. 
64,  12:  815 


AMNESTY. 


Editorial  Notes. 
Legislative  power  to  grant.     34:  251. 


AMOUNT  IN  CONTROVERSY. 

For  Purpose  of  Jurisdiction,  see  Appeal  and 
Error,  95-98;   Courts,  290-293. 


AMPUTATION. 


Liability  for  Failure  to  Deliver  Amputated 
Portion  of  Limbs,  see  Hospitals,  7. 


AMUSEMENTS. 


Civil  Rights  in  Places  of,  see  Civil  Rights, 
1-6. 

Prohibiting  Keeping  of  Devices  for,  in  Sa- 
loons, see  Intoxicating  Liquors,  36,  47. 

Liability  for  Selling  Liquor  in  Place  of,  see 
Intoxicating  Liquors,  173. 

See  also  Bathing  Resort;  E-vhibition;  Horse 
Race;  Public  Resorts. 

Editorial  Notes. 

Use   of   public   money   for   entertainments. 

14:  475. 
Municipal  regulation  of,  as  a  nuisance.    39: 

528. 
Injunction    against,    by    municipality.     41: 

322. 
Delegation  of  power  to  license.     20:  721. 


ANARCHIST. 


As  Libelous  Appellation,  see  Libel  and  Slan- 
der, 30,  31. 
See  also  Sedition. 


M 


ANCIENT  BOOK— ANIMALS. 


ANCIENT  BOOK. 

Editorial  Notes. 
Use  of,  as  evidence.    53 :  532. 


♦  •» 


ANCIENT  DOCUMENTS. 

Editorial  Notes. 

Necessity  of  proving,  by  subscribing  wit- 
nesses.   35:  341. 

Adverse  possession  under  ancient  deed.  10: 
388.* 


ANCIENT   ORDER   OF   UNITED   WORK- 
MEN. 

Right  to  Use  of  Name,  see  Corporations.  44. 

♦  •» 

ANCILLARY  ADMINISTRATION. 

Collateral  Attack  on  Award  to  Administra- 
tor, see  Judgment,  125. 

See  also  Executors  and  Administrators,  7,  28, 
29,  40,  114,  12G-128,  133,  163,  164,  168, 
184. 

Editorial  Notes. 

When  ancillary  letters  granted.  9: 218,* 
246.* 

Distribution  when  domiciliary  and  ancillary 
administrators  have  been 
appointed.    9:  219,*  246.* 


ANCILLARY  JURISDICTION. 

In  Federal  Court,  see  Courts,  III.  g. 

♦-»-♦ 

ANCILLARY  RECEIVER. 

Bee  Garnishment,  78;  Receivers,  VL 

♦  *» 

AND. 

Meaning  of,  see  Contracts,  275;  Corporations, 
133. 


ANIMALS. 

L  Rights  and  Liabilities  Concerning. 

a.  Rights  of  Owners  Generally. 

b.  Liability  for  Killing  Dogs. 

c.  Liability  for  Injuries  by. 

1.  Stock. 

2.  Dogs. 

d.  Running  at  Large. 


I. — continued. 

e.  Animals  with  Infections  Diseafses. 

f.  Tax  on  Dogs. 
11.  Cruelty  to. 

III.  Editorial  Notes. 

Bailment  of  Horse,  see  Bailment,  25,  26. 

Transportation  of,  see  Carriers,  11.  b,  6; 
III.  §  39;  Commerce,  44. 

Chattel  Mortgage  on,  see  Chattel  Mortgage 
11,  23. 

Unlicensed,  Delegating  Power  to  Humane 
Society  to  Destroy,  see  Constitutional 
Law,  172. 

Privilege  of  Humane  Society  to  Keep  Dogs 
without  License,  see  Constitutional 
Law,  470. 

Dipping  Sheep  from  Other  State,  see  Consti- 
tutional Law,  383;  Evidence,  1944;  Of- 
ficers, 200. 

Due  Process  as  to,  see  Constitutional  Law, 
769-777. 

Police  Power  as  to,  see  Constitutional  Law, 
362,  973-978. 

Damages  for  Killing  of,  or  Injury  to,  see 
Damages,  239,  380,  386. 

Order  of  \  eterinary  Surgeon  to  Examine,  see 
Discovery  and  Inspection,  16. 

Judicial  Notice  as  to,-  see  Evidence,  128-130,^ 
167. 

Opinion  Evidence  as  to  Value  of,  see  Evi- 
dence, 1334-1336. 

Evidence  of  Pedigree  of  Dog,  see  Evidence, 
1476. 

Exemption  of,  see  Exemptions,  40,  41. 

Fright  of,  see  Blasting,  5,  7,  8,  20;  Evidence, 
128,  1968;  Highways,  263,  264,  289,  290, 
295,  298,  299,  338,  356 ;  Proximate  Cause, 
81,  82,  98-102,  121,  141-143;  Railroads, 
IL  d,  5;  Street  Railways,  140-144; 
Trial,  355,  356,  363,  378,  386,  562,  563. 

As  Game,  see  Game  Laws. 

Proliibiting  Driving  of,  in  Highway,  see  Con- 
stitutional Law,  325. 

Injunction  against  Permitting  in  Park,  see 
Injunction,  172. 

Insurance  of  Horse,  see  Insurance,  472. 

Conclusiveness  of  Judgment  as  to  Increase 
of,  see  Judgment,  177. 

Lien  for  Keeping,  see  Liens,  11-13,  17-22. 

Assumption  of  Risk  of  Injury  by,  see  Master 
and  iservant,  268. 

Monopoly  in  Removal  of  Carcasses,  see  Mo- 
nopoly, 3. 

Ordinance  for  Muzzling  Dogs,  see  Municipal 
Corporations,  67. 

Municipal  Regulations  as  to  Dead  Animals, 
see  Municipal  Corporations,  211-213. 

Ordinance  against  Keeping  Hogs  in  City,  see 
Municipal  Corporations,  217. 

Contributory  Negligence  as  to  Horse,  see 
Negligence,  239,  240. 

Imputing  Bailee's  Negligence  to  Bailor,  see 
^Negligence,  252. 

Slaughter  House  as  Nuisance,  see  Nuisances^ 
44-48. 

Proximate  Cause  of  Injury  to,  by  Train,  see 
Proximate  Cause,  84,  85. 

Bounty  for  Killing  Coyotes,  see  Public  Mon- 
eys, 50. 

Injury  to,  by  Railroad  Trains,  see  Railroads, 
II.  d,  6;  II.  e,  4;  III.  §  17. 


ANIMALS.   I.    a.  b. 


45 


Warranty  of  Horse,  see  Sale,  54,  56,  69,  70. 
Stable  for  Horses,  see  Livery  Stable;  Stable. 
Trespass  by  Placing  Wild  Animals  ia  Park, 

see  Trespass,  4. 
See  also  Bees;  Blood  Hounds. 


I.  Rights  and  Liabilities  Concerning. 
a.  Rights  of  Owners  Generally. 

Presumption  of  Ownership  of,  see  Evidence, 

723.  \ 

For  Editorial  Notes,  see  infra,  III.  §  1. 

L  A  contract  for  the  use  of  a  mare  for  the 
purpose  of  breeding  a  colt,  which  gives  a 
right  to  possession  of  her  until  the  colt  is 
bred,  foaled,  and  weaned,  establishes  a  right 
to  the  colt  as  against  a  subsequent  execu- 
tion creditor  of  her  own?r.  Maize  v.  Bow- 
man, 93  Ky.  205,  19  S.  W.  589,  17:  81 

2.  Liberating  an  animal  captured  during 
close  time  in  violation  of  statute  interferes 
with  no  legal  right  or  title  of  the  person  il- 
legally holding  it  captive,  and  gives  him  no 
right  of  action.  James  v.  Wood,  82  Me.  173. 
19  Atl.  160,  8:  448 
Property  right  in  dogs. 

See  also  infra,  8,  9,  14. 

For  Editorial  Notes,  see  infra.  III.  §  1. 

3.  There  is  only  a  qualified  property  in 
dogs,  and  in  fact  there  may  be  said  to  be 
no  property  in  them  as  against  the  police 
power  of  the  state,  though  as  against  a 
wrongdoer  the  law  regards  them  as  proper- 
ty. Fox  V.  Mohawk  &  H.  R.  Humane  Soc. 
165  N.  Y.  517,  59  N.  E.  353,  51:  681 

4.  The  owner  of  a  dog  has  such  a  prop- 
erty in  it  as  will  entitle  him  to  maintain 
trover  for  its  recovery  in  case  of  its  wrong- 
ful conversion.  Graham  v.  Smith,  100  Ga. 
434,  28  S.  E.  225,  40:  503 

5.  A  dog  is  the  subject  of  larceny  under 
Iowa  Code  1873,  §  3902,  making  it  a  crime 
for  anyone  to  steal  any  "chattels"  of  an- 
other. Hamby  v,  Samson,  105  Iowa,  112,  74 
N.  W.  918,  40:  508 
Property  right  in  animals  ferae  naturae. 

6.  To  acquire  a  property  right  in  animals 
ferce  naturw  so  that  tney  may  be  the  sub- 
ject of  larceny,  the  pursuer  must  bring  them 
into  his  power  and  control,  so  that  he  may 
subject  them  to  his  own  use  at  his  pleasure, 
and  must  so  maintain  his  possession  and 
control  as  to  indicate  that  he  does  not  intend 
to  abandon  them  again  to  the  world  at 
large;  but,  in  cases  where  larceny  is 
charged,  the  law  does  not  require  absolute 
security  against  the  possibility  of  escape. 
State  v.  Shaw,  67  Ohio  St.  157,  65  N.  E. 
875,  60:  481 
Right  to  recover  for  injury  to  trespassing 

animal. 

7.  A  statute  and  custom  depriving  the 
owner  of  unfenced  land  of  the  right  to  re- 
cover for  injuries  causad  by  trespassing  ani- 
mals do  not  require  him  to  keep  the  proper- 
ty safe  for  such  animals,  so  as  to  charge 
him  with  the  loss  in  case  he  leaves  poisonous 
liquids  used  in  his  business  exposed  where, 
without  his  knowledge,  the  animals  drink  it 


and  perish.    Beinhom  v.  Griswold,  27  Mont. 
79,  69  Pac.  557,  59:  771 

b.  Liability  for  Killing  Dogs. 

Loss  of  Right  to  Recover  for  Injury  to  Dog, 

see  Action  or  Suit,  38. 
Loss  of  Dog  on  Train,  see  Carriers,  683. 
Due  Process  as  to  Killing,  see  Constitutional 

Law,  911-913. 
City's    Liability    for   Reckless    Attempt    to 

Kill,   see  Municipal    Corporations,   478, 

479. 
On  Railroad  Track,  see  Railroads,  231-234. 
By  Street  Car,  see  Street  Railways,  136-139. 
Question  for  Jury  as  to,  see  Trial,  135,  136. 
See  also  Statutes,  484. 
For  Editorial  Notes,  see  infra.  III.  §§  1,  5. 

8.  A  dog  is  "property"  within  the  mean- 
ing of  the  constitutional  provision  against 
taking  property  without  due  process  of  law. 
Jenkins  v.  Ballantyne,  8  Utah,  245,  30  Pac. 
760,  16:  689 

9-10.  The  owner  of  a  dog  has  such  proper- 
ty in  him  that  he  may  maintain  an  action 
for  killing  or  injuring  him.  Citizens'  Rapid 
Transit  Co.  v.  Dew,  ICO  Tenn.  317,  45  S.  W. 
790,  40:  518 

11.  A  dog  has  a  money  value  in  Nebraska, 
which  the  owner  may  recover  from  one  who 
wrongfully  and  unlawfully  kills  the  dog. 
Nehr  v.  State,  35  Neb.  638,  53  N.  W.  589, 

17:  771 

12.  Evidence  of  the  market  value  of  dogs 
is  not  necessary  to  sustain  a  judgment  for 
damages  for  poisoning  them,  where  there  is 
proof  of  their  usefulness  and  services  from 
which  the  jury  can  infer  value.  Heiiigmann 
V.  Rose,  81  Tex.  222,  16  S.  W.  931,       13:  272 

13.  The  killing  of  a  dog  which  is  "justifi- 
able in  the  protection  of  life  or  property," 
under  Conn.  Gen.  Stat.  §  3755,  extends  to  a 
killing  which  is  justifiable  under  the  stat- 
utes of  the  state,  as  well  as  to  that  which 
is  justifiable  under  the  common  law.  Sim- 
monds  v.  Holmes,  61  Conn.   1,  23  Atl.  702, 

15:253 

14.  The  wilful  and  malicious  killing  of  a 
dog  is  not  an  indictable  offense  under  Ga. 
Code,  §  4627,  as  the  "injuring  or  destroying 
.  .  .  public  or  private  property,"  even  if 
dogs  are  regarded  as  property,  since  this 
statutory  provision  is  intended  to  apply  ex- 
clusively to  inanimate  property.  Patton  v. 
State,  93  Ga.  Ill,  19  S.  E.  734,  24:  732 
By  person  assaulted  by  dog. 

15.  The  right  of  a  person  whom  a  dog  has 
suddenly  assaulted,  to  kill  the  dog,  under  R. 
I.  Pub.  Stat.  chap.  93,  §  6,  need  not  be  exer- 
cised instantly,  but  the  person  has  a  right 
to  go  for  a  weapon  and  return  and  kill  the 
dog.  Spaight  v.  McGovem,  16  R.  I.  658,  19 
Atl.  246,  7:388 

16.  The  fact  that  a  person  assaulted  by  a 
dog  followed  it  into  the  shop  of  a  third  per- 
son and  killed  it  there  does  not  make  him 
liable  to  the  owner  of  the  dog,  where  the 
statute  gave  him  a  right  to  kill  it.  Id. 

17.  A  man  bitten  in  consequence  of  his  in- 
terference between  two  dogs  to  separate 
them  is  not  sudderily  assaulted,  within  the 
meaning  of  R.  L  Pub.  Stat.  chap.  93,  §  e» 


46 


ANIMALS,  I.  c.  1. 


80  as  to  give  him  the  right  to  kill  the  dog. 

Id. 

18.  A  dog  that  persistently  and  in  a 
threatening  manner  assails  people  passing 
along  a  public  road  is  a  nuisance,  and  may 
be  killed  bv  any  person  so  assailed.  Nehr 
V.  State,  35'Neb.  638,  53  N.  W.  589,  .  17:  771 
By  police  officers. 

For  Editorial  Note,  see  infra.  III.  §  1. 

19.  Ine  killing,  by  po.ice  officers,  of  an 
unmuzzled  dog,  when  running  at  large  upon 
the  city  streets,  unattended  by  any  person, 
at  a  time  when  there  is  danger  of  hydro- 
phobia and  an  ordinance  requires  dogs  to  be 
muzzled  or  confined,  is  justifiea  by  Burns's 
(Ind.)  Rev.  Stat.  1894,  §  2857,  the  substance 
of  which  is  re-enacted  in  Burns's  Supp. 
Kev.  Stat.  1897,  §§  2864a-2864o  (Ind.  Acts 
1897,  p.  178).  Walker  v.  Towle,  156  Ind. 
639,  59  N.  E.  20,  53:  74 J 
Dogs  running  at  large. 

Police  Power  as  to,  see  Constitutional  Law, 
977,  978. 

20.  A  dog  running  at  large  without  a  col- 
lar having  a  metallic  plate  thereon  on  which 
is  inscribed  the  name  of  the  owner  may,  un- 
der the  Nebraska  statute,  be  lawfully  killed 
by  any  person.  Nehr  v.  State,  35  Neb.  638, 
53  N.  W.  589,  17:  771 

21.  A  dog  is  running  at  large  so  that  it  is 
lawful  to  kill  hinr  under  Neb.  Consol.  Stat. 
§  191,  if  he  has  not  the  required  collar  on 
when  he  leaves  the  owner's  premises  or  goes 
upon  the  public  road,  no  one  having  control 
of  him  being  near.  Id. 
Trespassing  dog. 

22.  A  trespassing  dog  cannot  lawfully  be 
killed  mere.y  because  the  owner  has  been 
notified  to  keep  the  dog  off  the  premises. 
Hodges  v.  Causey,  77  Miss.  353,  26  So.  945, 

48:  95 

23.  The  right  to  kill  a  dog  "found  doing, 
or  attempting  to  do  mischief  when  not  under 
the  care  of  any  person,"  which  is  given  by 
Conn.  Gen.  Stat.  §  3757,  is  not  limited  to 
damages  done  by  his  teeth  or  to  animal  life, 
but  extends  to  injuries  by  destroying  young 
and  tender  plants  in  a  garden,  and  does  not 
depend  on  the  relative  value  of  the  dog 
and  the  property.  Simmonds  v.  Holmes,  61 
Conn.  1,  23  Atl.  702,  15:  253 
Barking  dog. 

24.  Shooting  into  a  congregation  of  dogs 
on  cne'<»  premises  at  night,  barking,  quarrel- 
ing, and  fighting  there  so  as  to  keep  the 
family  awake  and  seriously  annoy  them, 
and  which  has  become  an  intolerable  nui- 
sance, is  justified  if  it  is  a  reasonable  and 
necessary  means  to  protect  the  family  from 
such  nuisance.  Hubbard  v.  Preston,  90  Mich. 
221,  51  N.  W.  209,  15:  249 

25.  A  man  is  not  justified  in  kiiling  his 
neighbor's  valuable  dog,  of  which  he  has 
never  made  complaint  although  knowing  the 
owner,  merely  because  the  dog  has  barked 
around  his  house  at  night,  and  chased  cats 
into  the  trees,  and  has  left  tracks  on  his 
freshly  painted  porch,  and  has  once  been 
found  in  his  henhouse,  in  which  he  did  no 
damage,  except  perhaps  to  break  one  egg. 
Powers  V.  Horan,  93  ifich.  420,  53  N.  W. 
635,  17:  773 


c.  Liability  for  Injuries  by. 
1.  Stock. 

Liability  for  Communication  of  Infectious 
Diseases,  see  infra,  I.  e. 

Due  Process  in  Permitting  Sale  of  Trespass- 
ing Animals,  see  Constitutional  Law, 
909. 

As  to  Duties  and  Liabilities  as  to  Fences, 
see  Fences. 

For  Editorial  Notes,  see  infra.  III.  §§  I,  5. 

26.  The  owner  is  not  in  general  liable  for 
an  injury  committed  by  a  domestic  animal 
while  in  a  p.ace  where  it  rightfully  may  be, 
unless  it  is  shown  that  the  animal  was  vi- 
cious in  the  particular  complained  of,  and 
that  the  owner  had  notice  of  such  vicious 
propensity.  Morgan  v.  Iludnell,  52  Ohio  St. 
552,  40  N.  E.  716,  27:  862 
While  trespassing  or  running  at  large  gen- 
erally. 

Duties    and    Liabilities    as  to    Fences,  see 

Fences. 
See  also  infra,  51. 
For  Editorial  Notes,  see  infra.  III.  §§  1,  5. 

27.  The  common-law  ru.e  requiring  an 
owner  to  keep  his  stock  within  his  own  in- 
clcsure  is  not  in  force  in  Oregon.  Moses  v. 
Southern  P.  R.  Co.  18  Or.  385,  23  Pac.  498, 

8:  135 

28.  The  common-law  rule  which  requires 
the  owner  of  animals  to  keep  them  on  his 
own  land  or  within  inclosures  is  not  in  force 
in  Virginia,  being  inconsistent  with  Va.  Acts 
1893-94,  p.  941,  and  other  legislation  of  the 
state  making  provisions  as  to  what  shall 
constitute  a  lawful  fence,  except  in  counties 
which  have  adopted  what  is  known  as  the 
"No  Fence  Law,"  thereby  restoring  the  com- 
mon-law rule  in  those  localities.  May  v. 
Poindexter,  98  Va.  143,  34  S.  E.  971, 

47 :  588 

29.  The  common-law  rule  as  to  the  duty 
of  the  owners  of  domestic  animals  to  keep 
them  from  trespassing  exists  in  Illinois,  un- 
der the  act  of  1874,  except  in  districts  where 
a  vote  taken  under  the  statute  hajs  estab- 
lished the  contrary  rule,  although  for  a 
long  period  of  time  the  common-law  rule 
was  rejected  in  that  state  as  inapplicable  to 
its  conditions.  Bulpit  v.  Matthews,  145  III. 
345,  34  N.  E.  525.  22:  55 

30.  Knowledge  that  cattle  are  liabie  to 
break  fences  is  necessary  in  order  to  make 
the  owner  liable  in  Texas  for  permitting 
chera  to  run  at  large.  Clarendon  Land,  I. 
&  A.  Cp.  V.  McClelland  Bros.  89  Tex.  483, 
34  S.  W.  98,  35  S.  W.  474,  31 :  669 

31.  If  an  animal  breaks  into  the  close  of 
'nother,  and  there  damages  the  real  or  per- 
jonal  property  of  the  one  in  possession,  even 
if  it  is  by  viciously  attacking  another  ani- 
oial,  the  owner  of  the  trespassing  animal  is 
•iable  without  reference  to  whether  or  not 
such  animal  was  vicious  and  without  refer- 
ince  to  whether  such  propensity  was  known 
:o  the  owner.  ^Morgan  v.  Hudnell,  52  Ohio 
St.   552,  40  N.  E.  7i6,  27:  862 

32.  The  owner  of  an  unaltered  jack  is  not 
liable  for  a  filly  killed  by  it,  where,  without 


ANIMALS,  1.  c,  2.  d. 


47 


his  knowledge  or  intentional  or  negligent 
permission,  it  broke  from  the  place  in  which 
it  was  kept,  under  Sand.  &  H.  (Ark.)  Dig.  § 
7301,  making  the  owner  of  such  animal  lia- 
ble for  ail  damages  sustained  by  its  "run- 
ning at  large."  Briscoe  v.  Alfrey,  61  Ark. 
196,  32  S.  W.  505,  30:  607 

33.  The  owners  of  domestic  animals  are 
liable  at  common  law  for  damages  commit- 
ted by  them  in  trespassing,  without  regard 
to  the  negligence  of  the  owners  in  permit- 
ting them  to  escape,  or  to  the  fact  of  inclo- 
sure,  or  lack  of  inclosure,  of  premises  on 
which  they  are  trespassing.  'Bulpit  v. 
Matthews,   145  111.  345,  34  N.  E.  525, 

22:55 

2.  Dogs. 

Proximate  Cause  of  Injury,  see  Proximate 
Cause,   130,  131. 

34.  Although  an  owner  of  an  animal  is 
not  responsible  when  damage  is  caused  by 
an  unforeseen  accident,  or  an  accident  he 
could  not  guard  against, — as,  when  it  arises 
from  vis  major, — he  is  responsible  when  he 
is  chargeable  with  the  least  fault.  Delisle  v. 
Bourriague,  105  La.  77,  29  So.  731,  54:  420 
Liability  of  person  harboring. 

35.  One  who  harbors  a  dog  on  his  prem- 
ises as  owners  usually  do  with  their  dogs 
is  to  be  deemed  the  owner  under  a  statute 
respecting  the  liability  of  owners  for  inju- 
ries done  by  dogs.  Shultz  v.  Griffith,  103 
Iowa,  150,  72  N.  W.  445,  40:  117 

36.  A  married  woman  is  liable  for  an  in- 
jury caused  by  the  bite  of  her  husband's  dog 
which  she  harbors  on  her  own  premises,  with 
knowledge  of  its  vicious  propensities.  Quil- 
ty  V.  Battle,  135  N.  Y.  201,  32  N.  E.  47, 

17:  521 

37.  A  wife  is  not  liable  for  harboring  a 
vicious  dog  on  her  own  premises  where  her 
husband  lives  with  her,  although  the  stat- 
utes secure  to  married  women  their  separate 
estates  and  relieve  the  husband  from  liabil- 
ity for  his  wife's  torts  "in  the  commission  of 
which  he  does  not  participate,"  since  the  dog 
cannot  be  kept  without  his  consent  and  par- 
ticipation, and  must  be  charged  to  his  ac- 
count as  the  head  of  the  family.  Strouse  v. 
Leipf,  101  Ala.  433,  14  So.  667,  23:  622 
Knowledge  of  vicious  disposition. 

38.  The  mere  fact  that  a  dog  bites  a  per- 
son does  not  render  the  owner  liable  in  dam- 
ages,, where  the  dog  has  always  been  of  a 
kind  temper,  and  has  never  given  occasion  to 
suspect  that  he  would  bite,  and  the  owner 
is  in  no  way  in  fault.  Martinez  v.  Bernhard, 
106  La.  368,  30  So.  901,  .55:  67  J 

39.  The  owner  of  a  dog,  without  knowl- 
edge of  its  vicious  propensities,  is  not  liable 
for  damages  caused  by  its  bite,  although 
his  wife,  on  whose  premises  it  is  kept,  is 
found  liable  on  the  ground  that  she  harbored 
the  dog  knowing  of  such  vicious  propensities. 
Quilty  v.  Battle,  135  iS.  Y.  201,  32  N.  E.  47. 

17:521 

40.  One  whose  dogs  are  large  and  appear 
vicious  is  placed  on  lier  guard  as  to  their 
propensity  to  do  harm.  Delisle  v.  Bourria- 
gue, 105  La.  77,  29  So.  731,  54:  420 


41.  The  owner  of  savage  dogs,  who  re- 
quests another  to  come  into  her  yard,  and, 
after  compliance  with  the  request,  does  not 
protect  her  from  attack  by  the  dogs,  is  re- 
spon.sible  for  the  injury  which  the  dogs  in- 
flict upon  such  person.  Id. 

42.  Special  negligence  in  permitting  a  vi- 
cious dog  to  escape  from  an  inclosure  is  not 
necessary  to  create  a  liability  tor  keeping 
such  a  dog  with  knowledge  of  its  propensi- 
ties, when  he  escapes  and  inflicts  injuries. 
Strouse  v.  Leipf,   101   Ala.  433,   14  So.  667, 

23:  622 

43.  The  owner  of  ferocious  dogs,  who 
leaves  them  running  loose  in  his  back  yard, 
m  a  city  knowing  tnat  they  are  accustomed 
to  bite,  is  liable  for  the  injury,  where  they 
bite  a  person  who  enters  the  yard  on  lawful 
business  without  notice  or  knowledge  of 
the  dogs.  Conway  v.  Grant,  88  Ga.  40,  13 
S.  E.  803,  14:  196 

44.  That  an  assault  committed  by  a  dog 
in  jumping  upon  a  stranger  and  injuring 
him  resulted  merely  from  its  mischievous  or 
playful  propensity  will  not  absolve  the 
owner  from  liability,  if  he  knew  of  its  dis- 
position to  commit  such  injuries,  or  knew 
enough  of  its  habits  to  convince  a  man  of 
ordinary  prudence  of  its  inclination  to  com- 
mit them.  Crowley  v.  Groonell,  73  Vt.  45, 
50  Atl.  546,  55:  876 
Cotttributory  negligence. 

45.  Negligence  of  a  party  bitten  by  a  dog 
is  immaterial  under  Iowa  Code,  §  1485,  on 
the  question  of  the  liability  of  the  owner  of 
the  dog,  unless  that  negligence  amounts  to 
an  unlawful  act.  Shultz  v.  Griffith,  103 
Iowa,   150,  72  N.  W.  445,  40:  117 

46.  One  who  wilfully  provokes  a  dog  to 
bite  him  is  not  entitled  to  the  protection 
of  a  statute  making  the  owner  of  a  dog  lia- 
ble in  case  it  injures  any  person  traveling 
on  the  highway  or  out  of  his  inclosure. 
Peck  v.  Williams,  24  R.  I.  583,  54  Atl.  381, 

61:  351 

47.  That  one  bitten  by  a  dog  was  at- 
tempting to  climb  upon  the  owner's  cart 
without  leave  does  not  relieve  the  owner  of 
liability  for  the  injury,  under  a  statute 
making  the  owner  of  a  dog  liable,  whether 
or  not  he  knew  of  its  vicious  propensity,  if 
it  shall  bite  any  person  traveling  on  the 
highway  or  out  of  his  inclosure.  Id. 

48.  A  traveler  going  into  a  yard  of  a  feed 
and  livery  barn  which  is  op.en  to  patronage 
by  the  public  and  at  which  his  team  is  being 
kept  for  the  night,  in  order  to  see  that  his 
buggy,  which  was  left  in  the  yard,  has  been 
put  in  the  barn,  and  to  get  same  articles 
from  it,  when  this  is  done,  between  8  and 
half  past  8  o'clock  in  the  evening,  while  em- 
ployees are  working  at  the  bam,  is  not  a 
trespasser  or  doing  an  unlawful  act  within 
the  meaning  of  Iowa  Code,  §  1485,  so  as  to 
preclude  his  recovering  from  the  proprietor 
for  injuries  received  from  a  dog  wbioh  at- 
tacks and  bites  him.  Shultz  v.  Griffith,  103 
Iowa,  150,  72  N.  W.  445,  40:  117 

d.  Running  at  Large. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,    380. 


48 


ANIMALS.  I.  e. 


Due  Process  as  to,  see  Constitutional  Law, 
769,   770,   910. 

Police  Power  to  Prohibit,  see  Constitutional 
Law,  973. 

County  Law  as  to  Hogs,  see  Constitutional 
Law,   186. 

Presumption  as  to  Lawfulness  of  Impound- 
ing, see  Evidence,  604. 

Special  Legislation  as  to,  see  Statutes,  345. 

Ordinance  as  to,  see  Municipal  Corporations, 
153-162. 

Municipal  Liability  for  Injury  from,  see  Mu- 
nicipal Corporations,  552,  553. 

See  also  supra,  20,  21,  27-33. 

For  Editorial  Notes,  see  infra,  IIL  §§  2,  8. 

49.  A  colt  three  months  old  is  not  "run- 
ning at  large"  within  the  meaning  of  an  or- 
dinance, when  following  its  dam  when  she 
is  driven  along  the  street  with  the  colt 
directly  in  front  of  or  by  her  side  until  it 
is  separated  from  her  and  chased  away  by  a 
horse  which  is  running  at  large.  Elliott  v. 
Kitchens,  111  Ala,  546,  20  So.  366,        33:  b64 

e.  Animals  with  Infectious  Diseases. 

Establishing    Quarantine    against    Diseased 

Sheep,  see  Commerce,  12. 
Judicial  Notice  as  to,  see  Evidence,  118. 
Question  for  Jury,  as  to,  see  Trial,  501. 
Venue  of  Prosecution  as  to,  see  Venue,  19. 
For  Editorial  Notes,  see  infra.  III.  §  3. 

Liability  of  owner. 

50.  The  owner  of  cattle  is  liable  for  their 
communicating  a  disease  to  others,  if  he 
knew  or  had  good  reason  to  be.ieve  that 
they  could  communicate  it,  and  still  let 
them  run  at  large.  Clarendon  Land  I.  &  A. 
Co.  v.  McClelland  Bros.  89  Tex.  483,  34  S. 
W.  98,  35  S.  W.  474,  31:  669 

51.  Knowledge  of  the  owner  that  cattle 
were  breachy,  but  without  knowledge  or 
good  reason  to  believe  that  they  were  liable 
to  communicate  disease,  will  not  make  him 
responsible  for  the  effect  of  such  disease  actu- 
ally imparted  to  the  cattle  of  another  per- 
son in  consequence  of  their  breaking  a  fence. 

la. 

52.  Cattle  known  to  be  diseased  may  be 
placed  by  the  owner  in  his  own  pasture 
without  making  him  liable  for  communicat- 
ing the  disease,  unless  he  is  negligent  in  the 
m  nner  of  keeping  them.  Id. 
Liability  of  seller. 

Liability  for  Communicating  Disease  to  Cat- 
tle Transported,  see  Carriers,  866. 

Measure  of  Damages,  see  Damages,  146,  379. 

Death  of  One  Caring  for  Horse  from  Con- 
tracting Disease,  see  Death,  44. 

53.  Liability  of  one  who  knowingly  sells 
animals  infected  with  an  infectious  disease, 
for  the  death  of  sound  animals  belonging 
to  a  subsequent  purchaser,  which  contract 
the  disease  from  them,  is  not  destroyed  by 
the  intervention  of  an  iiiternietliate  owner 
of  the  animals,  where  the  latter  did  not 
know  of  the  disorder,  and  was,  therefore, 
not  a  wrongdoer.  Skinn  v.  Reuttcr,  135 
Mich.  57,  97  N.  W.   152.  63:  743 

54.  One  selling  hogs  known  to  be  infected 
with    a    dangerous    and    infectious    disease 


commits  a  wrong  imminently  dangerons  to 
human  life,  within  the  rule  that  one  guilty 
of  such  an  act  may  be  liable  for  injury  to 
life  or  property  tnereby  caused,  even  to 
persons  not  immediately  connected  with  the 
transaction.  aX 

Liability  of  carrier. 
Partial    Invalidity    of    Statute   as    to,    see 

Statutes,   113. 
See   also  infra,  57. 

55.  The  escape  by  a  carrier's  negligence, 
of  Texas  cattle  infected  with  microbes  or 
parasites  by  which  Texas  fever  may  be  com- 
municated, makes  the  carrier  liable  for  uam- 
ages  to  other  cattle  to  which  they  communi- 
cate the  disease.  Grimes  v.  Eddy,  120  Mo. 
168,  28  S.  W.  756,  26:  638 

56.  Cattle  infected  with  microbes  or  para- 
sites by  which  Texas  fever  may  be  communi- 
cated to  other  cattle,  although  not  them- 
selves diseased,  are  within  the  provisions  of 
Mo.  Rev.  Stat.  1889,  §  953.  for  protection 
against  cattle  affecteid  or  infected  with  Tex. 
as  fever.  Id. 
Prohibition  against  importation  of. 
Delegation  of  Power  to  Governor  as  to,  see 

Constitutional  Law,  169. 

57.  Absolute  liability  for  damages  caused 
by  importation  of  cattle  infected  with  Texas 
fever,  without  allowing  it  to  be  shown  that 
defendant  had  no  notice  and  cou.d  not  have 
ascertained  the  condition  of  the  cattle  by 
the  exercise  of  reasonable  care,  is  not  cre- 
ated under  Iowa  Acts  21st  Gen.  Assem.  chap. 
156,  §§  2,  3,  substituted  for  Iowa  Code,  |§ 
4058,  4059,  prohibiting  the  importation  of 
such  cattle,  and  making  a  violation  of  the 
law  a  misdemeanor,  with  a  right  of  action 
to  persons  injured  for  the  damages  sus- 
tained. Furlev  v.  Chicago,  M.  &  St.  P.  R. 
Co.  90  Iowa,  146,  57  N.  W.  719,  23:  73 

58.  Under  a  statute  permitting  the  gov- 
ernor to  schedule  localities  from  which  cat- 
tle cannot  be  imported  except  under  the 
regulations  of  the  board  of  live-stock  com- 
missioners, upon  their  reporting  to  him  that 
certain  contagious  and  infectious  diseases 
have  become  epidemic  in  such  locality,  the 
governor  cannot  schedule  all  the  states  and 
territories  of  the  United  States,  so  as  to 
prevent  the  importation  of  cattle  therefrom 
until  after  a  tuberculin  test,  upon  a  report 
of  the  board  that  "contagious  disease  pre- 
vails to  a  greater  or  less  extent"  in  such 
states  and  territories.  Pierce  v.  Dilling- 
ham, 203  111.  148,  67  N.  E.  846,  62:  888 

59.  A  statute  permitting  the  regulations 
which  will  prevent  the  importation  of  cattle 
except  under  the  rules  of  the  state  board  of 
live-stock  commissioners  from  "certain  lo- 
calities in  other  states"  in  which  contagious 
diseases  have  become  epidemic  cannot  be  so 
extended  as  to  comprehend  the  whole  world 
outside  of  the  state,  where  the  regulations 
are  to  be  enforced.  Id. 

60.  A  report  by  a  board  of  live-stock  com- 
missioners that  cattle  affected  with  a  dis- 
ease which  prevails  to  a  greater  or  less  ex- 
tent in  a  particular  locality  are  liable  t» 
communicate  the  disease  does  not  meet  the 
requirements  of  a  statute  authorizing  the 
governor  to  schedule  places  from  which  cat- 


ANIMALS.   I.   f— IIL 


49 


tie  cannot  be  imported  except  under  the 
regulations  of  the  board,  when  the  condition 
of  cattle  from  such  locality  is  such  as  to 
render  them  "liable  to  convey  such  disease." 

Id. 
Tuberculin  test. 
Claim   for  Unnecessary  Destruction  of,  see 

Claims,  22. 
See  also  supra,  58. 

CI.  Rules  of  a  state  board  of  live-stock 
commissioners  providing  for  applying  a  tu- 
berculin test  to  all  cattle  which  are  brought 
into  the  stnte  for  dairy  or  breeding^  purposes, 
but  exempting  all  other  kinds,  sire  invalid. 
Pierce  v.  Dillingham,  203  111.  148,  67  N.  E. 
846,  62:  888 

62.  To  justify  the  application  of  the  tu- 
beculin  test  to  all  cattle  imported  into  the 
state  for  dairy  or  breeding  purposes,  it  must 
appear  that  it  will  in  a  reasonable  degree, 
or  in  some  manner,  determine  the  existence 
or  nonexistence  of  tuberculosis.  Id. 
Liability  for  killing  uninfectel  animal, 

63.  Mass.  act  1887,  §  13,  requiring  the 
commissioners  on  contagious  diseases  among 
domestic  animals  to  cause  an  animal  infect- 
ed with  farcy  or  glanders  to  be  killed,  only 
authorizes  the  killing  of  actually  infected 
horses;  and  their  order  will  not  protect  the 
man  who  kills  a  horse  who  has  not  such  dis- 
ease, in  a  subsequent  suit  by  the  owner  for 
compensation.  Miller  v.  Horton,  152  Mass. 
540,  26  N.  E.  100,  10:  116 

f.  Tax  on  Dogs. 

Binding  Effect  of  Agreed  Statement  as  to, 
see  A  creed  Case,  5. 

Grant  of  Tax  to  Humane  Society,  see  Pub- 
lic Moneys,  51. 

Use  of  Tax,  see  Taxes,  94. 

See  also  Municipal  Corporations,  161. 

For  Editorial  Notes,  see  infra.  III.  §§  1,  2. 

64.  The  imposition  of  a  license  tax  on 
dogs,  under  a  city  charter  empowering  the 
city  to  tax,  regulate,  and  restrain  the  run- 
ning at  large  of  dogs,  does  not  violate  Mo. 
Const,  art.  10,  §  4,  requiring  all  property  to 
bo  taxed  in  proportion  to  its  value.  Carth- 
age V.  Rhodes,  101  Mo.  175,  14  S.  W.  181, 

9:  352 


II.  Cruelty  to. 

Due  Process  in  Permitting  Killing  of  Neg- 
lected Animal,  see  Constitutional  Law, 
914. 

Liability  of  vendor  of  unwholesome  food  for 
Committing,  see  Negligence,  25. 

Ordinance  as  to,  see  Constitutional  Law, 
772;   Municipal  Corporations.  201. 

Title  of  Statute  as  to,  see  Statutes,  268. 

For  Editorial  Notes,  see  infra.  III.  §  7. 

65.  Favoritism  of  a  society  for  the  pre- 
vention of  cruelty  to  animals,  in  respect  to 
giving  notice  or  warning  to  violators  of  an 
ordinance,  does  not  constitute  a  defense  to 
a  prosecution  instituted  in  the  name  of  the 
slate  for  such  violation.  State  v.  Karsten- 
diek,  49  La.  Ann.  1621,  22  So.  845,  39:  520 
L.R,A.  Dig.— 4- 


To  dogs. 

66.  Dogs  are  domestic  animals,  within  the 
meaning  of  Ga.  Pen.  Code,  §  703,  prohibit- 
ing cruelty  to  domestic  animals,  since  they 
are  classed  as  such  by  the  constitutional 
provision  authorizing  a  tax  "upon  such 
domestic  animals  as  from  their  nature  and 
habits  are  destructive  of  other  property." 
Wilcox  V.  State,  101  Ga.  563,  28  N.  E.  981, 

39:  709 
Shooting  pigeons. 

67.  Shooting  pigeons  at  a  shooting  match 
as  they  are  liberated  from  a  trap,  and  mere- 
ly wounding  them  because  of  unskilful 
markmanship,  is  not  cruelty  to  animals, 
where  the  wounded  ones  are  at  once  killed 
and  sold  for  food.  Com.  v.  Lewis,  140  Pa. 
201,  21  Atl.  396,  11:  522 

68.  One  who  shoots  for  amuserrient  at  live 
doves  released    from    traps   as   targets,    al-    ^ 
though  those  that  are  killed  outright  o*"  cap- 
tured  and   killed    after  bein^   wounded   are 
used   as   food,  thereby   "tortures,   torments, 

.  .  .  or  needlessly  mutilates  or  kills" 
them,  within  the  prohibition  of  Mills's 
(Colo.)  Ann.  Stat.  §  104,  as  further  defined 
by  §  117  to  be  the  cause  of  "unnecessary  or 
unjustifiable  pain  or  sufferini."  Waters  v. 
People,  23  Colo.  33,  46  Pac.  112,  33:  836 

Docking. 
Class  Legislation  as  to,  see  Constitutional 

Law,   362. 
Due  Process  as  to,  see  Constitutional  Law, 

776. 
Police  Power  as  to   see  Constitutional  Law, 

975. 

69.  Proof  that  a  docked  horse  was  not 
registered  is  not  necessary  in  a  prosecution 
for  using  such  horse  contrary  to  the  provi- 
sions of  the  statute,  where,  because  of  .-he 
time  when  the  docking  occurred,  registra- 
tion was  not  possible  under  the  provisions 
of  the  act.  Bland  v.  People,  32  Colo.  319, 
76  Pac.  359,  65:  424 

70.  The  legislature  may  lawfully  deprive 
those  who  violate  the  provisions  of  a  statute 
forbidding  the  docking  of  horses'  tails  of 
the  right  to  use  the  horses  as  a  penalty  for 
such  violation.  Id. 


m.  Editorial  Notes, 

§  I.  Generally. 

Feros  naturoe,  property  in;   game  laws.     8: 

448.* 
Property  rights  in  bees.    40:  687. 
Property  ri'jhts  in  dosrs.    40:  503, 
Generally.    40:  503. 

Actions  of  trover,   replevin,   and   tree- 
pass.     40:  507, 
Actions  against  common  carriers.     40: 

508. 
Actions  for  injuries  to  dogs  by  railroad 

and  street  cars.     40:  509. 
Liability  of  railroad   for  killing   doga. 

37 :  659. 
Right  to  damages  for  killing  of  dog  by 

public  officer.    19:  196. 
Criminal   actions   for  injuries   to  dogs. 

40:  511. 
Larceny  and  obtaining  a  dog  by  false 

pretenses.    40:  514. 


60 


ANNEXATION— ANNUITIES. 


Value.     40:  518. 

As  to  license  and  tax  laws.    40:  520. 
Generally.     40:520. 
Taking  property  without  due  pro- 
cess of  law.     40:  523. 
Title  to  the  increase  of  animals.     17:  81. 
Generally.     17:  81. 

As  between  life  tenant  and  remainder- 
man.    17:81. 
On  conditional  sale  of  dam.    17:  82. 
As  between  mortgagee  of  dam  and  oth- 
er claimants.     17:  82. 
Duty  to  inform  hirer  of  character  of  horse. 

12:  39/.* 
Liability   of  owner   for  trespass   of  cattle. 
22:  55. 
From  the  highway.  22:  59, 
Driving  cattle  on  land  of  another.    22: 

CO. 
Lack  of  division  fences.    22:  60. 
Removal  of  division  fence.    22:  62. 
Defects  in  partition   fence.     22:  62. 
Liability  for  trespass  of  stock  of  third 

party.     22:  03. 
As  between  owner  and  keeper.    22:  64. 
Liability  of  owner  of  bees  for  injuries  done 
by  them.    62:  132. 
Actions   for  injuries   inflicted  by  bees. 

62:  133. 
Bees  as  a  nuisance.    62:  133. 
Liability  of  hirer  of  horse.     12:  397.* 

For  driving,  to  place  where  it  was  not 
hired  to  go.    26:366. 
Warranty  of  horses  kept  for  hire.     19:  283. 
Evidence   of   traalin<T   by   bloodhounds.     4:i: 

432. 
Evidence  of  other  crimes  in  prosecution  for 
killing    or    injuring    ani- 
mals.    62:239. 
§  2.  Regulations  concerning;    impounding. 
Municipal    ordiinance   regulating   stray    ani- 
mals.    4:  254.* 
License  on  privilege  to  keep  dogs.     9:  352.* 
Tax  on  dogs.     10:  43." 

Impounding  and   forfeiture  of  animals.     4: 
252.* 
Authority   to  impound    and   sell   stray 

animals.     4:  253.* 
Rights  of  owner.     4:  254.* 
§  3,  Diseased. 

Validity  and  construction  of  statutory  regu- 
lations as  to  infected  ani- 
mals.    26:  638. 
Statutes   providing    for    destruction    of 
infected  animals.     26:  638. 
Texas  cattle  atts.     20:  638. 
Necessity  of  the  s*^atutes.     26:  640. 
Construction  of  statutes.     26:  G40. 
Ellect  of  contributory   negligence.     26: 

640. 
Conditional  ownership.     20:  640. 
§  4.  Duty  and  liability  to  owner. 
See  also  Carriers.   IV.   §  39;    Railroarls,  TTT. 
Liability  of  vendor  of  unwholesome  food  for 

cattle.  21:  140. 
Liability  for  escape  of  another's  stock  from 
pasture  by  failure  to  keep 
proper  division  fence.  20: 
479. 
Loss  of  stock  as  element  of  damages  for  re- 
moval of  fences.     53:  629. 


Injury  by  reason  of  leaving  gates  in  rail- 
road  fence  opea.     49:  625. 
§  5.  Liability  for  damage  by. 
Liability  of  owner  for  injuries  by,  to  per- 
sons coming  upon  owner's 
premises.    14:  196. 
Liability  of  municipality  for  permitting  in 

streets.     27:  728. 
Damage  by  trespassine  animals.    4:  840. 
§  6.  Killing. 

Right  to  kill  dogs.     15:  249;  40:  510. 
Police   power.     15:  249;    40:  510. 
Unlicensed  dogs.     15:  249. 
Owner's  right  of  action.     15:  249. 
Barking  or  how.ing  dogs.     15:  249;  40: 

510. 
Dogs  dangerous  to  mankind.     15:  249; 

40:  511. 
Trespassing   and   predatory  dogs.     15: 

250;  40:  51 L 
Dogs  that  worry,  attack,  or  injure  sheep 
or  other  animals.    15:  251; 
40:  511. 
Relative  value  of  dog  and  of  property 

endangered.     15:  252. 
When   dogs    are    "at    large."      15:  252; 

40:  511. 
Negligent  killing,  or  killing  by  mistake. 

15:252;    40:  51L 
Criminal  killing.     15 :  252. 
Liability  of  railroad  for  killing  dogs.     37: 

659. 
Right  to  damages  for  killing  of  dog  by  pub- 
lic oificer,     19:  196. 
§  7.  Cruelty. 
Liability  for.     11:  522.* 
§  .^.  Nuisance. 

Running  at  large  as  a   nuisance  in  street 
subject  to   municipal  con- 
trol.   39:  674. 
Municipal  regulation  as  to  nuisance  of.    38: 

332. 
Municipal    power   over   stockyards  as  nui- 
sances.   38:  655. 
Bees  as.    62:  133. 
§  g.  Liens. 

Liens   for  keeping.     6:  82.* 
Priority  of  agister's  lien.     17:  792, 
Waiver  of  Men  by  attachment  or  execution. 
50:  720, 


ANNEXATION. 


To  County,  see  Evidence,  2310. 
To  City,  see  Estoppel,  178;  Municipal  Cor- 
porations, I.   b. 


ANNOTATOH. 

Editorial  Notes. 

Common-law  right  of  annotator  or  commen- 
tator.   51 :  358. 

<~»^ 


ANNUITIES. 


Payment  of,  from  Insolvent  Estate,  see  As- 
signments for  Creditors,  96. 


ANNULMENT— ANTITRUST    LAW. 


51 


Bar  of  Dower  Right  by,  see  Dower,  53. 
Validity  of  Provisions  for,  see  Perpetuities, 

"ti,  34. 
Deduction  from  Teacher's  Salary  to  Prpvide, 

see  Schools,  35. 
Succession   Tax   on   Annuitants,   see  Taxes, 

565,  567,  571,  630,  633. 
Protection    of,    as    Spendthrift    Trust,    see 

Trusts,  195. 
Trust  in  Money  to  Raise,  see  Trusts,  218. 

Charge  on  lands  for. 

1.  The  devise  of  an  annuity  or  yearly 
portion  out  of  the  net  rents  and  profits  of 
a  trust  estate  carries  no  interest  in  the  real- 
ty, where  the  donee  can  never  assert  any 
right  of  possession,  control,  or  ownership 
during  has  lifetime,  unless  as  tenant  of  the 
trustee.  De  Haven  v.  Sherman,  131  111.  115, 
22  N.  E.  711,  6:  745 

2.  An  annuity  given  by  will  is  not  made 
a  rent  charge  upon  trust  lands  from  the 
rents  of  which  it  is  to  be  paid,  where  there 
are  no  words  creating  a  legal  rent  charge, 
and  no  power  given  to  distrain  if  the  annu- 
ity be  not  paid.  Id. 
When  payable. 

3.  An  annuity  out  of  the  yearly  income 
of  a  farm  is  payable  at  the  end  of  a  year. 
Henry  v.  Henderson,  81  Miss.  743,  33  So. 
960,  .       63:  616 

4.  An  annuity  to  take  etrect  from  and  aft- 
er the  death  of  the  donor  is  payable,  not  in 
advance,  but  at  tne  termination  of  the  year- 
ly periods  commencing  with  his  death. 
Mower  v.  Sanford,  76  Conn.  504,  57  Atl.  119, 

63:  625 
Apportionment. 
See  also  infra,   Editorial  Notes. 

5.  An  annuity  is  not  apportionable,  even 
when  given  to  a  widow  in  lieu  of  dower; 
so  that  her  death  pending  a  yearly  period 
will  terminate  all  claim  to  any  portion  of 
the  sum  which  would  have  become  payable 
at  the  termination  of  that  period.  Mower 
V.  Sanford,  76  Conn.  504,  57  Atl.  119,    63:  625 

6.  An  annuity  created  by  will,  to  be  paid 
to  an  adult  during  the  lifetime  of  the  hus- 
band of  the  testratrix,  is  not  apportionable 
in  the  absence  of  anything  in  the  will  to 
indicate  such  an  intent,  and,  in  case  the 
husband  dies  before  the  first  payment  be- 
comes due,  the  annuitant  will  receive  noth- 
ing. Henry  v.  Henderson,  81  Miss.  743,  33 
So.  960,  63:  616 
Paying   previous  deficiencies  from   surplus. 

7.  Where  for  a  number  of  years  the  in- 
come from  an  estate  was  insufflcent  to  pay 
in  full  an  annuity  payanle  out  of  the  in- 
come, a  surplus  in  subsequent  years,  when 
such  income  was  more  than  sufficient,  should 
be  applied  in  satisfaction  of  the  previous  de- 
ficiencies, and  not  be  paid  to  the  next  of 
kin.  Re  Chauncey,  119  N.  Y.  77,  23  N.  E. 
448,  .  7:  361 
Necessity  of  seal. 

8.  A  contract  for  a  life  annuity  not  is- 
suing out  of  or  charged  upon  lands,  but  by 
which  an  insurance  company,  in  considera- 
tion of  a  sum  certain,  agrees  to  pay  the  an- 
nuitant specified  sums  annually  during  life, 
is  a  mere  chose  in  action  for  the  payment 
of  money,  which  need  not  be  made  in  the 


form  of  a  deed  or  under  seal.  Cahill  v. 
Maryland  L.  Ins.  Co.  90  Md.  333,  45  Atl. 
180,  47 :  614 

9.  A  charter  authorizing  an  insurance 
company  to  "grant,  purchase,  or  dispose  of 
annuities,"  does  not  limit  the  company  to 
the  grant  of  annuities  by  deed  or  contract 
under  seal.  Id. 

10.  The  failure  to  attach  the  seal  of  the 
insurance  company  to  a  policy  granting  an 
annuity,  or  the  omission  of  some  other  tech- 
nical requirement,  will  not  constitute  a  de- 
fense to  a  suit  for  annuity  after  the  insur- 
er has  received  the  purchase  money.         Id. 

Editorial  Notes. 

Form   of    instrument    necessary    to   create. 

47:  614. 
Apportionment  of  annuities   in  absence  of 
statute.     63:  616. 
General  rule.     63:  616. 
Exceptions.    63:  621. 

Annuity  created   for  maintenance. 

63:  621. 
Consideration     passing     from    an- 
nuitant.    63:  625. 
In  lieu  of  dower.    63:  626. 
Other  consideration.    63:  627. 
Special  instances.    63:  628. 
Interest.     63:  629. 
Form  of  judgment  on  annuity  and  instal- 
ment bonds.     62:  439,  453. 
Set-oflf  in  bankruptcy.    55:  68. 


ANNULMENT. 
Of  Marriage,  see  Marriage,  IV.;  V.  §  7. 


ANSWER. 
See  Pleading,  III, 

♦»» 


ANTENUPTIAL  CONTRACT. 
See  Husband  and  Wife,  II.  i. 


ANTICIPATED  INJURY. 

Injunction  to  Prevent,  see  Injunction,  11-21 ; 
Nuisances,  127-128b. 


ANTI-TRUST  LAW. 


Combination  in  Violation  of,  see  Conspiracy, 
11. 

As  Denial  of  Equal  Protection,  see  Consti- 
tutional Law,  361. 

As  to  Insurance,  see  Commerce,  7. 

Limitation  of  Action  for  Violation  of,  see 
Limitation  of  Actions,  177,  178. 

Partial  Invalidity  of,  see  Statutes,  78. 

Sufficiency  of  Title,  see  Statutes,  184. 

Strict  Construction  of,  see  Statutes,  610. 


52 


A.  O.  U.  W.— APPEAL  AND  ERROR. 


A.  0.  U.  W. 

Right  to  Use  of  Name,  see  Corporations,  44. 

♦ « » 

APARTMENT  HOUSE. 

As  Violation  of  Covenant,  see  Covenant,  30, 
56. 


APOTHECARY. 


Liability  for  Libel,  see  Libel  and  Slander, 
63,  64. 


APPEAL  AND  ERROR. 

L  Right    of   Appeal;    What    Cases    Re- 
viewable; Modes  of  Appeal. 

a.  In  General. 

b.  Finality  of  Decision. 

c.  Criminal  Cases. 

d.  Modes  of  Review. 

II.  Jurisdiction  of  Particular  Courts. 

a.  Of    Supreme    Court    of    United 

States. 

1.  In  General. 

2.  Over  State  Courts. 

b.  Of  Circuit  Courts  of  Appeals. 

c.  Of  State  Courts. 

1.  Generally. 

2.  Over    Constitutional    Ques- 

tions;   Validity    of    Stat- 
utes. 

3.  Over  Questions  of  Title. 

4.  Amount   Necessary   for  Ju- 

risdiction. 
in.  Transfer  of  Cause;    Parties. 

a.  Rig-ht  to  Transfer. 

b.  Ell'ect;    Subsequent   Proceedings 

in  Court  Below. 

c.  Parties. 

d.  Mode;    Conditions;   Regulations. 

e.  Citation;  Notice;  Appearance. 

f.  Time. 

g.  Security. 

rV.  Record  and  Case  in  Appellate  Court. 

a.  In  General. 

b.  What  Should  be  Shown  by. 

c.  Contradictions  in. 

d.  Amending. 

e.  Affidavits. 

f.  Evidence. 

g.  Stenographer's  Notes, 
h.  Instructions. 

i.  Findings. 

j.  Opinions. 

k.  Motions   and  Orders. 

1.  Certificates. 

m.  Abstracts. 

n.  Case  Made;  Statements. 

o.  Bill  of  Exceptions. 

1.  In  General. 

2.  SnfTioionfy;  \^Tiat  Should  be 

Presented  by. 

3.  Signing;   Settling;   Practice. 

4.  Time  for. 


rV. — continued. 

p.  Assignments  of  Error. 

1.  Necessity  of. 

2.  Sufficiency;  Definiteneas. 

3.  Cross  Errors. 

q.  Waiver  of  Assignments  of  Er- 
ror. 

r.  Briefs. 
V.  Objections    and    Exceptions;    Raising 
Questions  in  Lower  Court. 

a,  Definiteness;  Sufficiency. 

1.  In  General. 

2.  To  Evidence. 

a.  Admission  of. 

b.  Exclusion. 

3.  To  Instructions. 

b.  Necessity  for  Exceptions. 
e.  Time  for  Exceptions. 

d.  Raising  Questions  by  Motion  or 

Other  Mode. 
VL  Preliminary       Motions;       Dismissal; 
Abatement;  Abandonment. 

a.  In  General. 

b.  Grounds  for  Dismissal. 
Vn.  Hearing  and  Determination. 

a.  In  General;  Rules  of  Decision. 

b.  Who  May  Complain. 

e.  Evidence;     Amendments;     Trial 

de  A'ovo. 
d.  Presumptions. 
erWhat  Reviewable  Generally. 

f.  Decisions  in  Favor  of  Party,  or 

or  Not  Affecting  Him. 

g.  Objections  as  to  Which  Party  is 

Estopped. 

1.  In  General. 

2.  By  Requesting  or  Obtaining 

Ruling  or  Decision, 
h.  Interlocutory    Matters;     Orders, 

etc.,  Not  Appealed  from. 
L  Discretionary  Matters. 

1.  In     General;     Costs;     Con- 

tempt. 

2.  Continuance     or     Adjourn- 

ment. 

3.  As  to  Pleadings. 

4.  As  to  Evidence;  Witnesses. 

5.  Injunction;   Receivers. 

6.  Conduct  of  Trial;  Jury. 

7.  Vacation    of    Judgment    or 

Verdict;  New  Trial. 
J.  Questions  Not  Raised  Below. 

1.  In  General. 

2.  Jurisdiction. 

3.  Causes    of    Ac 'ion    or    De- 

fense; New  Theories. 

4.  As     to     Pleadings,     Indict- 

ments, etc. 

5.  As  to  Evidence;  Witnesses; 

Variance. 

0.  As  to  Jury. 

7.  As    to    Instructions;    Ques- 

tions Submitted  to  Jury. 

8.  As    to    Judgment,    Verdict, 

etc. 
k.  Errors  Waived  or  Cured  Below. 

1.  In  General. 

2.  As  to  Pleadings. 

3.  As  to  Evidence. 

4.  As  to  Instructions. 

5.  Taking  Case  Irom  Jurju 


APPEAL  AND  ERROR,   I.   a. 


68 


Vn. — continiied. 

L  Review  of  Facts. 

1.  In  General. 

2.  Of  Verdict. 

a.  In    General. 
6.  As  to  Damages  and  Val- 
ues. 

3.  Of  Findings  of  Court. 

a.  In    General. 
6.  In   Equity. 

4.  Of  Findings  by  Referee,  etc. 
6.  On  Appeal    from  Appellate 

Court. 
m.  What  Errors  Warrant'Reversal. 

1.  In  General. 

2.  As  to  Pleadings. 
8.  As  to  Evidence. 

o.  Erroneous      Admission. 

(1)  In  General;   Var- 

ious  Particular 
Matters. 

(2)  Immaterial;     Ad- 
mitted     or      Un- 

contraverted 
Facts. 

(3)  Facts      Otherwise 

Proved. 

(4)  Witnesses         an  J 

Their      Exami- 
nation. 

(5)  Error    Cured     by 

Ins  t  r  uction. 
Verdict,  etc. 
6.  Erroneous  Exclusion. 

c.  Refusal  to  Strike  Out. 

d.  Variance. 

e.  In  Cases  Tried  without 

Jury. 
4.  As  to  Instructions. 

o.  Instructions  Given. 

(1)  Generally;       Mis- 
cellnneous     Mat- 
ters. 

(2)  As  to  Negligence. 

(3)  As  to  Damages. 

(4)  As   to  Witnesses. 

(5)  Upon    Facts    and 

Evidence. 
6.  Failure    or    Refusal    to 

Instruct. 
c.  Modification  of  Instruc- 
tion. 
6.  Argument    or    Remarks    of 
Counsel. 

6.  Remarks     or     Conduct     of 

Judge. 

7.  As    to    Jury;     Conduct    of 
I  Trial. 

a.  In  General. 
5.  Summoning  and  Selec- 
tion of  Jury. 

c.  Conduct  of  or  Interfer- 

ence with  Jury. 

d.  Submission    of    Issues; 

Directing  Verdict. 

8.  As  to  Findings,  Verdict,  or 

Judgment. 
Vm.  Judgment. 

a.  In  GeneraL 


vm. — continued. 

b.  Rendering  Modified  Judgment. 

c.  Remanding;  Granting  New  Trial. 

d.  Costs. 

e.  Effect  of  Decision. 

f.  Correction. 
IX.  Rehearing. 

X.  Liability  on  Appeal  Bond. 
XI.  Editorial  Notes. 

By  Expelled  Member  to  Superior  Tribunal  of 
Society,  Necessity  of,  see  Benevolent  So- 
cieties, 51. 

For  Certified  Questions,  see  Cases  Certified. 

Effect  of  Remedy  by,  on  Right  to  Other  Rem- 
edy, see  Certiorari,  21-26;  Mandamus, 
22;   Prohibition,  5,  6,  8. 

Effect  of  Amendment  of  Constitution  Pend- 
ing Appeal,  see  Constitutional  Law,  20. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  598-601. 

Due  Process  as  to,  see  Constitutional  Law, 
811,  812. 

For  Error  Coram  Nobis,  see  Coram  Nobis. 

From  County  Board,  see  Counties,  91. 

Effect  of  Reversal  on  Former  Jeopardy,  see 
Criminal  Law,  159-163. 

In  Eminent  Domain  Case,  see  Eminent  Do- 
main, II.  d. 

Insurer's  Liability  for  Failure  to  Perfect 
Appeal,  see  Insurance,  1347. 

Calling  in  Circuit  Judges  to  Assist  in  Deci- 
sion, see  Judges,  6,  7. 

Quorum  of  Court  on,  see  Judges,  14-16. 

Jury  Trial  on,  see  Jury,  55-58. 

From  Justice's  Judgment,  see  Justice  of  the 
Peace,  IV. 

Effect  on,  of  Surrender  of  Leased  Premises, 
see  Landlord  and  Tenant,  228. 

Mandamus  in  Aid  of,  see  Mandamus,  29-31. 

From  Local  Improvement  Assessment,  see 
Public  Improvements,  158. 

As  to  Bill  of  Review,  see  Review. 

Partial  Invalidity  of  Statute  Allowing,  see 
Statutes,  97. 

From  Assessment,  see  Taxes,  HL  c. 


I.  Right  of  Appeal;  What  Cases  Reviewable; 
Modes  of  Appeal. 

a.  In  General. 

Retrospective  Statute  as  to,  see  Statutes, 
546. 

1.  The  right  to  appeal  is  not  a  common- 
law  right,  but  depends  upon  written  law. 
McClain  v.  Williams,  10  S.  D.  332,  73  N.  W. 
72,  11  S.  D.  60,  75  N.  W.  391,  43:  287 

2.  No  appeal  lies,  unless  expressly  given 
by  statute,  from  a  decision  of  the  circuit 
court  sitting,  under  statutory  authority,  as 
an  appellate  court.  Arnsperger  v.  Crawford, 
101  Md.  247,  61  Atl.  413,  70:  497 

3.  Legislative  power  to  limit  appeals  to 
defined  class  of  cases  is  not  restricted  by  a 
constitutional  provision  that  all  courts  shall 
be  open  and  every  man  shall  have  a  remedy 
by  due  course  of  law.  McClain  v.  Williams, 
10  S.  D.  332,  73  N.  W.  72,  11  S.  D.  60,  75  N. 
W.  391,  43:  287 


54 


APPEAL  AND   ERROR,  L   b. 


4.  Tliere  ia  no  inherent  right  to  appeal 
from  a  judgment  of  &  court  of  inferior  to 
one  of  superior  jurisdiction  for  the  purpose 
of  securing  a  second  trial  upon  the  merits; 
such  right  can  only  exist  by  reason  of  a  stat- 
ute. Sullivan  v.  Haug,  82  Mich.  548,  46  N. 
W.  795,  10:  263 

5.  A  constitutional  provision  clothing  cer- 
tain courts  with  appellate  jurisdiction  does 
not  give  a  right  of  appeal  to  such  courts  in 
all  cases,  but. only  in  such  as  the  legislature 
shall  determine  and  designate, — at  least 
where  no  process  is  provided  by  the  Consti- 
tution for  bringing  the  cause  from  the  in- 
ferior into  the  superior  court.  Id. 

6.  Failure  to  provide  for  an  appeal  from 
the  order  of  removal  does  not  render  void  a 
statute  providing  that,  when  a  plaintiff  is 
entitled  to  some  relief,  but  not  in  the  court 
in  which  he  has  brought  his  action,  the  cause 
may,  in  the  discretion  of  the  court,  be  re- 
moved to  the  proper  tribunal,  where  such 
amendments  may  be  made  as  may  be  neces- 
sary to  a  hearing  of  the  case  according  to  its 
practice.  Insurance  Co.  of  N.  A.  v.  Schall, 
96  Md.  225,  53  Atl.  925,  61:  300 

7.  A  decision  that  a  regulation  is  reason- 
able upon  its  face  as  matter  of  law,  without 
reg&rd  to  the  facts  in  proof,  is  subject  to  re- 
view, although,  if  the  court  had  decided  the 
question  as  it  should  have  done,  as  a  ques- 
tion of  fact,  there  could  have  been  no  ap- 
peal. Moore  v.  District  of  Columbia,  12  App. 
D.  C.  537,  41:208 

8.  An  appeal  lies  from  an  order  refusing 
to  modify,  so  as  to  restore  such  power  to 
him,  a  decree  improvidently  entered,  which 
deprives  a  trustee  of  his  original  power  over 
the  trust  fund,  and  gives  definite  directions 
as  to  its  expenditure.  Re  Washington  Monu- 
ment Fund,  154  Pa.  621,  26  Atl.  647,    20:  323 

9.  The  insanity  of  a  defendant  in  a  di- 
vorce suit  does  not  prevent  maintaining  a 
writ  of  error  from  a  decree  against  him. 
lago  V.  lago,  168  111.  339,  48  N.  E.  30, 

^  ^  39: 115 

10.  An  appellant  cannot  insist  on  having 
clerical  enors  in  the  judgment  corrected  by 
the  appellate  rather  than  by  the  trial  court, 
although  the  correction  by  the  trial  court 
deprives  him  of  his  ground  for  appeal.  Kin- 
del  V  Beok  &  P.  Lithographing  Co.  19  Colo. 
310,  35  Pac.  538,  24:  311 
Habeas  corpus. 

11.  A  writ  of  error  does  not  lie  from  the 
supreme  court  of  Florida  to  review  a  judg- 
ment rendered  by  an  individual  justice 
thereof  in  a  habeas  corpus  proceeding.  Ex 
parte  Cox,  44  Fla.  537,  33  So.  509,     61 :  734 

12.  A  statute  allowing  a  writ  of  error  to 
the  supreme  court  of  Florida  to  review  the 
judgment  of  an  individual  justice  thereof  in 
a  habeas  corpus  proceeding  is  invalid,  where 
such  right  of  review  is  not  granted  by  the 
Constitution,  which  created  the  court  and 
prescribed  its  jurisaiction,  and  no  power  to 
confer  additional  jurisdiction  upon  such 
court  is  delegated  by  the  Constitution  to  the 
legislature.  Id. 

13.  A  habeas  corpus  proceeding  to  deter- 
mine the  right  to  the  custody  of  a  child  be- 
ing a  civil  suit,  a  judgment  of  the  district 


court  awarding  the  custody  to  the  fath«*  as 
against  the  relatives  of  the  deceased  moth- 
er may  be  reviewed  by  the  court  of  appeals 
on  writ  of  error.  People  ex  rel.  Green  v. 
Court  of  Appeals  of  Co.o.  27  Colo,  405,  61 
Pac,  592,  51:  105 

14,  A  final  order  of  discharge  on  habeas 
corpus,  of  a  person  imprisoned  for  crime, 
may  be  reviewed  and  reversed  on  error,  by 
a  higher  court,  Henderson  v.  James,  52 
Ohio  St.  242,  39  N,  E.  805,  27 :  290 

b.  Finality  of  Decision. 
For  Editorial  Notes,  see  infra,  XI.  §§  2,  3. 

15.  That  a  case  has  not  been  disposed  of 
as  to  one  defendant  who  has  never  been 
served  with  notice  or  appeared  in  the  ac- 
tion will  not  prevent  an  appeal  from  a  judg- 
ment entered  in  favor  of  a  codefendant. 
Lough  V,  John  Davis  &  Co.  30  Wash,  204,  70 
Pac,  491,  59:  802 

16,  An  order  quashing  a  summons  is  ap- 
pealable under  a  statute  permitting  appeals 
from  orders  terminating  the  action  or  pro- 
ceeding, Carstens  v,  Leidigh  &  H.  Lumber 
Co,   18  Wash,  450,  51   Pac,  1051,         39:  548 

17,  The  denial  of  an  application  by  a 
stranger  to  be  admitted  as  a  party  defendant 
to  a  pending  suit  in  equity  is  not  such  a 
final  decree  as  is  the  subject  of  appeal 
under  U,  S,  Rev,  Stat,  §  692,  Hamlin  v. 
Toledo,  St,  L,  &  K,  C,  R,  Co,  24  C.  C.  A.  271. 
47  U,  S,  App,  422,  78  Fed.  664,         36:  826 

18,  No  appeal  lies  from  an  order  granting 
a  motion  for  judgment  notwithstanding  the 
verdict,  Sanderson  v.  Northern  P.  R,  Co. 
88  Minn,  162,  92  N,  W.  542,  60:  403 

19.  An  order  or  decree  which  retains  or 
dismisses  defendants  who  are  charged  to  be 
jointly  liable  with  other  defendants  in  the 
suit  is  not  a  final  decision,  and  is  not  ap- 
pealable, because  it  does  not  dispose  of  the 
whole  case.  Carmichael  v.  Texarkana,  54 
C.  C.  A.  179,  116  Fed.  845,  58:  911 
As  to  pleadings. 

20.  A  judgment  on  demurrer  to  an  inter- 
vening petition,  which  makes  a  final  dispo- 
sition of  the  case  so  far  as  concerns  the 
petitioners,  may  be  appealed  from.  Union 
Trust  Co.  v,  Richmond  City  R.  Co,  154  Ind. 
291,  55  N,  E.  745,  48:41 

21,  The  reservation  of  a  right  to  deter- 
mine how  far  an  answer  and  cross  bill  are 
pertinent,  when  granting  a  motion  for  the 
admission  of  parties  defendant,  does  not 
prevent  a  subsequent  decision  that  the 
pleadings  are  impertinent  and  show  no  sub 
stantial  defense  and  dismissing  the  plead- 
ing and  the  party  from  the  cause,  from  being 
appealable  as  a  final  decree  on  the  merits. 
Hamlin  v.  Toledo,  St,  L.  &  K,  C,  R,  Co.  24 
C.  C.  A,  271,  47  U,  S,  App.  422,  78  Fed. 
664,  36:  826 
As  to  challenges  to  jury. 

22.  The  right  to  appeal  from  the  rulings 
of  the  trial  court  upon  challenges  to  jurors 
is  entirely  within  the  legislative  judgment. 
People  v.  Dunn,  157  N.  Y.  528,  52  N.  K 
572,  43:247 
As  to  new  trial;  affecting  judgment. 

23.  An  appeal  may  be  taken  to  the  geoeral 


APPEAL  AND  ERROR.  I.  b. 


55 


term  of  the  supreme  court  of  New  York 
from  a  decision  of  the  trial  court  denying  a 
motion,  made  upon  the  judge's  minutes  for 
new  trial  in  an  action  which  has  been  tried 
before  a  jury,  notwithstanding  judgment 
has  been  entered  therein  from  which  no  ap- 
peal has  been  t.aken,  and  as  to  which  the 
time  for  appealing  has  expired.  Voisin  v. 
Commercial  Mut.  Ins.  Co.  123  N.  Y.  120,  2.5 
N.   E.  325,  9:  G12 

24.  An  order  entered  upon  motion,  set- 
ting aside  a  judgment  entered,  upon  the 
verdict  of  a  jury,  and  granting  a  new  trial 
unless  the  party  in  whose  favor  «the  judg- 
ment was  entered  submits  to  a  spftified  re- 
duction thereof,  is  an  intermediate  order 
which  is  reviewable  without  anv  exceptions 
thereto,  under  Ky.  Rev.  Stat.  1898,  §  3070, 
on  appeal  from  a  judgment  which  is  en- 
tered in  accordance  with  the  order,  with  his 
consent,  for  the  reduced  amount.  Ililde- 
brand  v.  American  Fine  Art  Co.  109  Wis. 
171,   85  N.  W.  268,  53:  826 

25.  An  appeal  from  an  order  refusing  to 
set  aside  a  judgment  rendered  without  juris- 
diction will  not  be  denied  on  the  ground 
that  the  judgment  was  appealable.  De  La 
Montanya  v.  De  La  Montanya,  112  Cal.  101, 
44  Pac.   345,  '  32:  82 

26.  An  order  reversing  an  order  modify 
ing  the  direction   as  to  alimony   contained 
in  a  judgment  which  dissolved  the  marriage 
of  the  parties  is  appealable.     Livingston  v. 
Livingston,  173  N.  Y.  C77,  66  N.  E.  123, 

61 :  800 
Decision  on  appeal. 

27.  An  order  dismissing  an  appeal  from  a 
justice's  court,  which  terminates  the  action 
and  prevents  a  judgment  from  which  an  ap- 
peal can  be  taken,  is  appealable.  Finley  v. 
Prescott,  104  Wis.  614,  80  N.  W.  930,    47:  695 

28.  An  order  of  the  district  court  direct- 
ing a  dismissal  of  an  appeal  from  justice's 
court  is  one  which  looks  fonvard  to  and  re- 
quires the  entry  of  a  formal  judgment,  and 
therefor  is  not  a  final  judgment,  and 
is  not  an  appealable  order  under  the  Ne- 
braska statute  regulating  appeals.  Re 
Weber,  4  N.  D.  119,  59  N.  W.  523,       28:  621 

29.  No  writ  of  error  lies  lies  to  the  court 
of  appeals  of  Maryland  from  a  decision  of 
the  circuit  court  on  an  appeal  from  the 
judgment  of  a  justice  of  the  peace.  Jude- 
find  v.  State,  78  Md.  510,  28  Atl.  405, 

22:  721 

30.  An  order  of  the  general  term  of  the 
New  Ybrk  supreme  court  denying  a  motion 
for  a  new  trial,  made  under  N.  Y.  Code 
Civ.  Proc.  §  1001,  is  appealable  to  the  New 
York  court  of  appeals.  Wahl  v.  Barnum, 
118  N.   Y.   87,  22   N.   E.   280,  5:  623 

31.  An  appeal  from  an  order  of  the  gen- 
eral term  is  not  premature,  although  no 
judgment  has  been  entered  thereon,  where 
the  order  is  in  a  special  proceeding  appealed 
from  the  surrogate  which  could  only  ter- 
minate in  an  order.  Libbey  v.  Mason,  112 
N.  Y.  525,  20  N.  E.  355,  2:  795 

32.  An  appeal  as  from  a  final  order  in  a 
special  proceeding  or  a  final  judgment  in  an 
action  aes  from  an  order  of  the  appellate 
division  of  the  supreme  court  to  the  court 


of  appeals,  reversing  an  order  of  a  special 
term,  which  modified  provisions  of  a  former 
leertee  in  a  divorce  proceeding  as  to  payment 
if  income  of  a  trust  fund  as  alimony,  which 
proceeding  was  instituted  in  accordance  with 
permission  contained  in  the  former  decree 
upon  affidavits  that  were  given  the  effect 
of  pleadings,  the  lacts  becoming  the  sub- 
ject of  reference,  and  the  order  being  based 
upon  the  report  of  the  referee.  Wetmore  v. 
Wetmore,   162  N.  Y.  603,  56  N.  E.  997, 

48:  em 

As  to  costs. 

33.  An  appeal  lies  from  so  much  of  a 
judgment  as  allows  a  recovery  of  attorneys' 
fees  in  an  action  upon  a  bill  of  exchange,  un- 
der a  statute  allowing  an  appeal  from  a 
judgment  or  any  part  thereof.  Bank  of 
Commerce  v.  Fuqua,  11  Mont.  285  28  Pac. 
291,  14:  588 

34.  No  appeal  lies  from  a  refusal  of  the 
trial  court  to  require  the  giving  of  a  prose- 
cution bond  for  payment  of  costs  upon  pain 
of  dismissal  of  the  action  in  case  of  refusal. 
Christian  v.  Atlantic  &  N.  C.  R.  Co.  136  N. 
C.  321,  48  S.  E.  743,  68:  418 
As  to  injunction. 

35.  A  decree  declaring  a  patent  valid,  and 
that  it  has  been  infringed,  and  for  an  m- 
junction  and  accounting,  is  an  interlocutory 
decree  from  which  an  appeal  lies  to  the  Fed- 
eral circuit  court  of  appeals  under  the  act 
of  Congress  of  March  3,  1891.  Richmond  v. 
Atwood,  5  U.  S.  App.  151,  2  C.  C.  A.  596, 
52  Fed.   10,  17:  615 

36.  An  "interlocutory  order  or  decree" 
granting  or  continuing  an  injunction,  within 
the  meaning  of  the  act  of  Congress  giving  a 
right  to  appeal  to  the  circuit  court  of  ap- 
peals from  such  an  order  or  decree,  includes 
every  order  or  decree  which  was  not  ap- 
pealable under  prior  acts  of  Congress.  Id. 
As  to  receivers. 

37.  An  order  appointing  a  receiver  is  ap- 
pealable as  a  final  judgment,  within  the 
meaning  of  Utah  Const,  art.  8,  §  9,  as  the 
question  whether  an  order  is  appealable  de- 
pends on  its  effect  on  the  rights  of  the  par- 
ties rather  than  the  stage  of  the  litigation. 
Ogden  City  v.  Bear  Lake  &  R.  Waterworks 
&  Irrig.  Co.  16  Utah,  440,  52  Pac.  697, 

41 :  305 

38.  An  order  in  response  to  a  petition  filed 
by  the  receiver  in  an  action  for  the  winding 
up  of  a  corporation  and  the  appointment 
of  a  receiver,  for  the  assessment  of  the  sup- 
eradded liability  of  stockholders,  which  de- 
termines their  liability  and  directs  enforce- 
ment thereof,  affects  the  substantial  rights 
of  the  stockholders,  and  is  a  final  decree 
from  which  they  are  entitled  to  appeal. 
Bennett  v.  Thorne,  36  Wash.  253,  78  Pac. 
936,  68:  113 

39.  An  appeal  may  be  taken  from  an  order 
directing  a  receiver  to  restore  a  schedule  of 
wages  to  employees,  although  it  is  in  the  na- 
ture of  a  mere  administrative  direction, 
which  ordinarily  lies  within  the  discretion 
of  the  court,  if  the  question  of  the  power 
of  the  court  to  appropriate  the  funds  in 
his  hands  for  the  purposes  covered  by  the 
order  is  distinctly  raised  and  decided.  Guar- 


56 


APPEAL  AND  ERROR,   I.  c. 


antee  Tnist  &  S.  D.  Co.  v.  Philadelphia,  R. 
&  N.  E.  R.  Co.  69  Conn.  709,  38  Atl.  792, 

38:  804 
As  to  partition. 

40.  Orders  directing  the  construction  of 
weirs  for  the  partition  of  water,  and  for  im- 
provements by  raising  the  level  of  the  water 
to  facilitate  partition,  involve  the  merits 
of  a  controversy  for  the  partition  of  a  water 
power,  so  that  an  appeal  therefrom  may  be 
had  although  the  final  decision  has  not  been 
made.  Brown  v.  Cooper,  98  Iowa,  444,  67 
N.  W.  378,  33:  61 
As  to  attachment. 

41.  A  writ  of  error  is  the  proper  remedy 
to  review  the  everruling  of  a  motion  to 
quash  an  attachment  after  the  entry  of 
judgment  in  favor  of  the  attachment  credi- 
tor. Pierce  v.  Johnson,  93  Mich.  125,  53  N. 
W.  16,  18:  486 
Decree  on  foreclosure. 

42.  A  decree  adjudging  that,  unless  the 
owner  of  a  second  mortgage  within  a  pre- 
scribed time  gives  notice  to  the  purchaser  of 
the  premises  on  foreclosure  of  the  prior 
mortgage  of  his  des're  and  intention  to  re- 
deem, he  shall  be  forever  barred  and  fore- 
closed, is  a  final  decree  from  which  an  ap- 
peal may  be  taken,  where  the  time  for  giv- 
ingr  the  notice  has  expired.  Moulton  v.  Cor- 
nish, 138  N.  Y.  133,  33  N.  E.  842,  20:  370 
Eminent  domain. 

43.  A  denial  of  the  right  to  take  proper- 
ty by  right  of  eminent  domain  upon  the 
issues  made  by  the  pleadings  after  hearing 
testimony  introduced  upon  motion  for  the 
appointment  of  commissioners,  and  motion 
to  dismiss,  is  a  final  judgment,  which  may 
be  reviewed  by  the  appellate  court.  Denver 
Power  &  Irrig.  Co.  v,  Colorado  &  S.  R.  Co. 
30  Colo.  204,  69   Pac.  568,  60:  383 

44.  A  judgment  disallowing  the  claim  of 
one  interpleading  in  proceedings  to  condemn 
land  for  public  use,  to  the  compensation 
awarded,  is  a  final  one  from  which  a  writ  of 
error  will  lie,  although  a  judgment  had  pre- 
viously been  entered  in  the  proceeding  which 
fixed  the  right  of  the  public  to  the  property 
and  the  compensation  to  be  made  therefor. 
Hutchinson  v.  McLaughlin,  15  Colo.  492,  25 
Pac.  317,  11:287 

45.  The  constitutional  right  of  appeal  un- 
der Ala.  Const,  art.  14,  §  7,  from  any  pre- 
liminary assessment  of  damages,  by  viewers 
or  otherv/ise,  in  condemnation  proceedings, 
is  violated  by  Ala.  Code  1886,  §  1582,  which 
merely  provides  for  the  appointment  by  a 
probate  judge  of  three  arbitrators  and  the 
recording  of  their  awaixl,  without  any  pro- 
vision for  appeal,  as  the  general  statutes 
provide  for  an  appeal  only  from  a  final  judg- 
ment, order,  or  decree  of  the  judges  of  pro- 
bate. Memphis  &  C.  R.  Co.  v.  Birmingham 
S.  &  T.  R.  R.  Co.  96  Ala.  571,  11  So.  612, 

18:  106 
Contempt. 

46.  The  Colorado  statutes  providing  that 
judgments  or  orders  in  cases  of  contempt 
shall  be  final  and  conclusive  do€3  not  pre- 
vent a  writ  of  error  from  the  final  judgment. 


but  restricts  the  review  to  an  inquiry  into- 
the  jurisdiction  of  the  court  entering  the 
judgment.  Cooper  v.  People  ex  reL  Wyatt, 
13  Colo.  337,  373,  22  Pac.  790,  6:  430 

Probate  decrees. 
See  also  supra,  31. 

47.  A  decree  declaring  a  person  entitled  to 
a  share  of  a  legacy,  with  interest,  and  ad- 
judging the  true  construction  of  a  will,  with 
directions  that  ail  future  proceedings  in  the 
cause  be  in  accordance  with  such  construc- 
tion, but  making  no  decree  for  any  money, 
is  not  fiml.  Jameson  v.  Major,  86  Va.  51, 
9  S.  E.  480,  3:  773 

48.  An  order  directing  persons  named  both 
as  executors  and  trustees  in  a  will  to  render 
-an  account  as  executors,  against,  their  claim 
that  they  hold  the  estate  as  trustees,  in- 
volves a  decision  that  administration  is  nec- 
essary, and  is  therefore  final  so  as  to  au- 
thorize them  to  appeal  from  it.  Re  Hig- 
gins's  Estate,  15  Mont.  474,  39  Pac.  508. 

28:  116 

49.  No  appeal  will  lie  from  an  order  ap- 
pointing the  mother  guardian  of  a  natural 
child.  Ramsay  v.  Thompson,  71  Md.  315,  18 
Atl.  592,  C:  705 

c.  Criminal  Cases. 


See  also  infra,  80;  Courts,  479. 

60.  The  discretion  of  the  trial  judge  In 
denying  a  motion  to  set  aside  the  report  of 
physicians  to  the  effect  that  the  condition 
of  a  person  sentenced  to  death  was  the  same 
as  at  the  time  of  the  trial,  and  refusing  to 
submit  the  question  of  his  sanity  or  insanity 
for  determination  by  a  tribunal  before  which 
the  convict  might  be  represented  oy  counsel 
and  produce  witnesses,  is  not  subject  to  re- 
view by  appeal.  State  v.  Nordstrom,  21 
Wash.  403,  58  Pac.  248.  53:  584 

51.  The  provision  for  an  appeal  by  the 
mother  from  an  acquittal  of  the  putative 
father  in  a  bastardy  case,  made  by  N.  C. 
acts  1879,  chap.  92,  is  in  violation  of  the 
ccnstitutional  prohibition  against  placing  a 
person  twice  in  jeopardy,  as  the  statute,  by 
imposing  a  fine  upon  him  when  the  issue  of 
paternity  is  found  against  him,  makes  it  a 
criminal  proceeding.  State  v.  Ostwalt,  118 
N.  C.  1208,  24  S.  E.  660,  32:  396 

52.  A  statute  giving  a  right  of  appeal 
from  an  acquittal  in  a  criminal  case  for  il- 
legal fishing,  to  the  party  making  the  com- 
plaint or  any  person  who  will  give  the  neces- 
sary bond,  is  a  violation  of  the  constitu- 
tional provision  that  no  person  shall  "be 
twice  put  in  jeopardy  for  the  same  offense." 
People  ex  rel.  Hodson  v.  Miner,  144  HI.  308, 
33  N.  E.  40,  19:342 
Right  of  state  to  appeal 

See  also   Statutes,  465. 

For  Editorial  Notes,  see  infra,  XI.  §  3. 

53.  The  right  of  the  state  to  appeal  "upon 
a  question  reserved  by  the  state"  in  a  crim- 
inal case  includes  a  case  in  which  a  person 
who  has  not  actually  been  previously  in 
jeopardy   is   discharged   by   the   court   on  a 


APPEAL  AND  ERROR,   I.  d— II.  a,  2. 


67 


pTpa  of  such  jeopardy.     State  v.  Rook,  69 
Kan.  382,  59   Pac.   653,  49:  186 

54.  An  appeal  by  the  state  in  a  criminal 
case  from  a  general  verdict  of  not  guilty, 
which  was  entered  upon  motion  of  defendant 
because  the  warrant  was  issued  without 
any  affidavit,  will  not  be  granted  upon  the 
theory  that  the  verdict  is  equivalent  to 
quashing  the  indictment,  so  that  the  state 
can  appeal  under  N.  C.  Code,  §  1237,  where 
no  motion  to  quash  was  made  and  the 
court  refused  to  withdraw  a  juror  and  dis- 
miss the  action.  State  v.  Savery,  1^6  N.  C. 
1083,   36  S.   E.  22,  49:  585 

55.  A  statutory  right  of  appeal  by  the 
state  in  a  criminal  case  to  obtain  a  new 
trial  for  errors  of  law  after  an  acquittal  is 
not  in  violation  of  the  fundamentals  of  the 
common  law  of  Connecticut,  or  inconsistent 
vith  the  principle  that  enforces  the  con- 
clusiveness of  a  valid  and  final  judgment. 
State  V.  Lee,  65  Conn.  265,  30  Atl.  1110, 

27 :  498 

56.  After  acquittal  by  a  jury,  as  well  as 
after  trial  by  the  court,  an  appeal  may  be 
taken  by  the  state,  under  Conn.  Gen.  Stat. 
§  1637,  authorizing  the  state  to  appeal  in 
the  same  manner  and  to  the  same  effect  as 
the  accused  on  questions  of  law.  Id. 

57.  A  writ  of  error  lies  on  behalf  of  the 
state  to  review  an  order  quashing  an  indict- 
ment on  the  ground  of  the  unconstitutional- 
ity of  the  statute  under  which  it  was  drawn, 
under  a  statute  allowing  the  state  an  appeal 
or  writ  of  error  "when  any  indictment  is 
quashed  or  judged  insufficient  on  demurrer, 
or  when  judgment  thereon  is  arrested;"  and 
the  right  to  review  is  not  limited  to  cases 
where  the  indictment  is  held  insufficient  for 
matters  of  form,  by  a  subsequent  clause  in 
the  statute  which  authorizes  the  trial  court 
to  hold  the  defendant  if  it  has  reason  to  be- 
lieve that  he  can  be  convicted  of  an  offense 
if  properly  charged.  State  v.  Burgdoerfer, 
107  Mo.  1,  17  S.  W.  646,  14:  846 

d.  Modes  of  Review. 

See  also  supra,  41;  infra,  516;  Injunction, 

274,  386;  Review,  9. 
For  Editorial  Notes,  see  infra,  XL  §  1. 

68.  An  appeal,  and  not  a  writ  of  error, 
is  the  proper  mode  of  reviewing  a  decision 
on  habeas  corpus  by  the  circuit  court  of  the 
United  States.  King  v.  McLean  Asylum  of 
M.  G.  H.  21  U.  S.  App.  481,  12  C.  C.  A.  145, 
64   Fed.  331,  26:  784 

59.  An  appeal,  and  not  a  writ  of  error,  is 
the  proper  mode  of  review  in  an  action  for 
a  penalty  under  a  municipal  ordinance, 
where  the  act  is  not  made  criminal  by  the 
general  law  of  the  state.  Sioux  Falls  v. 
Kirby,  6  S.  D.  62,  60  N.  W.  156,  25:  621 

60.  Appeal,  and  not  petition  to  review,  is 
the  proper  remedy  for  rejection  of  a  claim 
in  a  bankruptcy  proceeding,  which  exceeds 
$500  in  amount.  Re  Dickson,  49  C.  C.  A.  574. 
Ill  Fed.  72C,  55:  349 


II.  Jurisdiction  of  Particular  Courts. 

a.  Of  Supreme  Court  of  United  States. 

1.  In  General. 

See  also  infra,  61. 

61.  The  question  cf  the  jurisdiction  of  a 
district  court  is  not  involved,  so  as  to  re- 
quire the  appeal  to  be  taken  to  the  Supreme 
Court  of  the  United  States  rather  than  to 
the  circuit  court  of  appeals,  in  the  deter- 
mination that  a  corporation  is  principally 
engaged  in  such  a  business  that  it  can  be 
adjudged  a  bankrupt.  Columbia  Ironworks 
V.  National  Lead  Co.  62  C.  C.  A.  99,  127  Fed. 
99,  64:  645 

2.  Over  State  Courts. 

For  Editorial  Notes,  see  infra,  XI.  §  2. 

62.  Questions  under  the  state  Constitution 
and  laws  cannot  be  considered  on  a  writ  ot 
error  to  a  state  court,  as  they  might  be  on 
error  to  an  inferior  Federal  court.  Missouri 
ex  rel.  ±iill  v.  Dockery,  191  U.  S.  165,  48 
L.  ed.  133,  24  Sup.  Ct.  Rep.   53,         63:  571 

63.  An  averment  in  an  answer  in  a  suit 
by  a  divorced  wife  on  a  policy  of  insurance 
on  her  former  husband's  life,  that,  by  virtue 
of  the  Hawaiian  laws  and  the  decree  of  di- 
vorce thereunder,  all  her  rights  in  such  pol 
icy  had  passea  to  and  become  the  property 
of  her  husband,  is  not  the  special  assertion 
of  a  right  or  claim  under  the  treaty  with 
Hawaii,  which  is  essential,  under  U.  S.  Rev. 
Stat.  §  709,  U.  S.  Comp.  Stat.  1901,  p.  575, 
to  confer  jurisdiction  on  the  Supreme  Court 
of  the  United  States  to  review  a  judgment 
of  a  state  court  adverse  to  such  right  or 
Claim.  Mutual  L.  Ins.  Co.  v.  McGrew,  188 
U.  S.  291,  47  L.  ed.  480,  23  Sup.  Ct.  Rep. 
375,  63:  33 
Federal  question  presented. 

For  Editorial  Notes,  see  infra,  XL   §  2. 

64.  A  decision  by  a  state  supreme  court 
that  the  granting  of  a  nonsuit,  instead  of 
submitting  the  case  to  the  jury,  where  the 
facts  are  admitted,  does  not  deprive  the 
plaintiu  of  due  process  of  law,  does  not  raise 
a  Federal  question  which  will  entitle  him  to 
a  writ  of  error  from  the  Supreme  Court  of 
the  United  States.  Apex  Transp.  Co.  v. 
Garbade,  32  Or.  582,  52  Pac.  573,  54  Pac. 
367,  882,  62:  513 

65.  A  decision  of  a  state  court  adverse  to 
the  claim  that,  under  Mexican  and  Spanish 
grants  confirmed  and  patented  under  the  act 
of  Congress  of  March  3,  1851  (9  Stat,  at  L. 
631,  chap.  41),  the  owners  of  the  land  were 
entitled  to  riparian  rights  and  subterranean 
waters,  involves  no  Federal  question  review- 
able in  the  hupreme  Court  of  the  United 
States,  where  the  validity  of  such  act  was 
not  drawn  in  question.  Hooker  v.  Los  An- 
geles, 188  U.  S.  314,  47  L.  ed.  487,  23  Sup. 
Ct.  Rep.  395,  63:  471 

66.  A  decision  of  the  Kentucky  court  of 
appeals  denying  any  force  or  effect  to  an 
Indiana  judgment,  which  is  based  on  a  de- 
nial of  the  jurisdiction  of  the  Indiana  court 


68 


APPEAL  AND  ERROR.   IL  b,  c,  1. 


because  of  the  place  of  service,  presents  a 
Federal  question  for  review  m  the  Supreme 
Court  of  the  United  States,  where  such  de- 
nial can  be  justified  only  on  the  ground  that 
the  Virginia  compact  of  1789  and  the  act 
of  Congress  of  February  4,  1791  (1  Stat,  at 
L.  189,  chap.  4),  admitting  Kentucky  to  the 
Union,  did  not  confer  the  right  of  jurisdic- 
tion whidi  the  Indiana  court  attempted  to 
exercise,  and  which  the  state  of  Indiana 
claims.  Wedding  v.  Meyler,  192  U.  S.  573, 
48  L.  ed.  570,  24  Sup.  Ct.  Rep.  322,     66:  833 

67.  A  taxpayer  who  admits  that  his  own 
tax  is  correct  cannot,  on  the  ground  that  he 
will  bs  deprived  of  his  property  without  due 
process  of  law,  and  denied  the  equal  protec- 
tion of  the  laws,  contrary  to  the  14th  Amend- 
ment of  the  Constitution  of  the  United 
States,  have  a  writ  of  error  from  the  United 
States  Supreme  Court  to  review  a  construc- 
tion by  the  supreme  court  of  the  state  of 
the  statutes  thereof,  as  exempting  in  wHole 
or  in  part  certain  corporations  from  the 
|)ayment  of  taxes.  Missouri  ex  rel.  Hill  v. 
Dockery,  191  U.  S.  165,  48  L.  ea.  133,  24 
Sup.  Ct.  Rep.  53,  63:  571 

68.  A  decision  of  a  state  court  cannot  be 
reviewed  in  the  Supreme  Court  of  the  Unit- 
ed States  as  a  denial  of  full  faith  and  credit 
to  an  Hawaiian  judgment,  where  the  Federal 
right  did  not  exist  when  judgment  of  the 
trial  court  was  rendered  because  the  Hawaii- 
iin  islands  had  not  then  been  annexed  to  the 
I'nitea  States,  and  such  contention  was  not 
l)rought  to  the  attention  of  the  highest  state 
ixjurt  in  any  form.  Mutual  L.  Ins.  Co.  v. 
McGrew,  188  U.  S.  291,  47  L.  ed.  480,  23 
Sup.  Ct.  Rep.  375,  .  63:  33 
Time  and  mode  of  raising  Federal  question. 
For  Editorial  Notes,  see  infra,  XI.  §  2. 

69.  A  Federal  question  raised  for  the  first 
{ime  on  motion  for  rehearing  comes  too 
late  as  a  foundation  for  taking  the  case  to 
t  he  Supreme  Court  of  the  United  States. 
Apex  Transp.  Co.  v.  Gaibade,  32  Or.  582, 
.V2  Pac.  573,  54  Pac.  367,  882,  62:  513 

70.  A  Federal  question  first  raised  Ja  a 
petition  for  rehearing  in  the  highest  state 
<-ourt  is  raised  too  late  to  confer  jurisdiction 
upon  the  Supreme  Court  of  the  United 
States,  where  such  petition  was  denied  with- 
out opinion.  Mutual  L.  Ins.  Co.  v.  McGrew, 
188  U.  S.  291,  47  L.  ed.  480,  23  Sup.  Ct.  Rep. 
375,  63:  33 

71.  A  judgment  of  a  state  court  cannot 
be  reviewed  in  the  Supreme  Court  of  the 
United  States  on  the  ground  that  it  denied 
a  right,  title,  privilege,  or  immunity  secured 
by  the  Federal  Constitution,  where  it  does 
not  appear  on  the  face  of  the  record  that 
such  right,  title,  privilege,  or  immunity  was 
specially  set  up  or  claimed  in  the  state 
court.  Home  for  Incurablas  v.  New  York, 
187  U.  S.  155,  47  L.  ed.  117,  23  Sup.  Ct.  Rep. 
84,  63:  329 

72.  A  judgment  of  a  state  court  in  con- 
demnation proceedings  is  not  reviewable  in 
the  Supreme  Court  of  the  United  States  on 
the  theory  that  a  question  respecting  due 
process  of  law  was  decided  thereby,  where 
there  is  nothing  in  the  record  which  ade- 
4]uately  shows  that  the  state  court  was  led 


to  suppose  that  any  claim  was  made  under 
the  Constitution  of  the  United  States,  or 
that  any  ruling  involved  a  decision  against 
a  right  set  up  under  that  instrument.  Hook- 
er v.  Los  Angeles,  188  U.  S.  314,  47  L,  ed. 
487,  23  Sup.  Ct.  Rep.  395,  63:  471 

73.'  A  certificate  of  the  chief  judge  of  the 
highest  state  court  that  a  Federal  question 
was  involved  is  not  properly  a  part  of  the 
record,  and  is  insufficient  in  itself  to  confer 
jurisdiction  on  the  Supreme  Court  of  the 
United  States  to  review  a  judgment  of  the 
state  court  or  to  determine  Federal  questions 
which  do  not  appear  from  the  record  to 
have  been  brought  to  the  attention  of  that 
court.  Home  for  Incurables  v.  New  York, 
187  U.  S.  155,  47  L.  ed.  117,  23  Sup.  Ct.  Rep. 
84,  63:  329 

b.  Of  Circuit  Courts  of  Appeals. 

In  Case  Involving  Right  of  Corporation  to 
be  Adjudged  Bankrupt,  see  supra,  61. 

74.  The  jurisdiction  of  the  United  States 
circuit  court  of  appeals  could  be  immediate- 
ly invoked  after  the  act  of  Congress  of 
March  31,  1891,  creating  those  courts,  al- 
though the  jurisdiction  of  the  circuit  courts 
and  the  supreme  court  was  preserved  as  to 
appeals  pending  or  taken  before  July  1,  1891. 
Baltimore  &  O.  R.  Co.  v.  Andrew,  6  U.  S. 
App.  75,  1  C.  C.  A.  636,  50  Fed.  728,     17:  190 

75.  An  appeal  lies  to  the  United  States 
circuit  court  of  appeals  from  an  interlocu- 
tory order  continuing  a  preliminary  injunc- 
tion, where,  although  there  is  a  question  of 
jurisdiction  resting  on  the  challenging  of  a 
state  law  as  in  contravention  of  the  Federal 
Constitution,  yet  at  the  threshold  of  the 
case  the  further  question  arises  whether  the 
facts  relied  on  make  a  case  of  equitable  cog- 
nizance. Green  v.  Mills,  25  U.  S.  App.  383, 
16  C.  C.  A.  516,  69  Fed.  852,  30:  90 

[Appeal  Dismissed  by  Supreme  Court  of 
United  States  in  159  U.  S.  651,  40  L.  ed. 
293,  16  Sup.  Ct.  Rep.  132.] 

c.  Of  State  Courts. 

1.  Generally. 

76.  Legislative  power  to  enlarge  the  juris- 
diction of  the  court  of  appeals  by  providing 
for  a  review  of  certain  judgments  of  inferior 
courts  that  were  not  reviewable  before  is 
not  taken  away  by  the  provision  of  N.  Y. 
Const,  art.  6,  §  9,  that  the  legislature  may 
further  restrict  such  jurisdictioa.  People 
ex  rel.  Comrs.  of  Public  Charities,  etc.  v. 
Cullen,  153  N.  Y.  629,  47  N.  E.  894.     44:  420 

77.  A  writ  of  error  lies  to  the  supreme 
court  from  the  court  established  "in  the  city 
of  Cartersville,  in  the  county  of  Bartow," 
by  Ga.  act  October  10,  1885,  although  the 
act  does  not  itself  provide  for  such  writ, 
iirice  it  is  provided  for  by  Ga.  Const,  art. 
6,  §  2,  TI  5,  and  Ga.  Code,'§  4266,  providing 
for  such  writs  from  the  city  courts  of  Atlan- 
ta and  Savannah  and  such  other  like  courts 
as  mav  be  thereafter  established.  Western 
&  A.  R.  Co.  v.  Voils,  98  Ga.  446,  26  S.  E.  483, 

35:  655 


APPEAL  AND  ERROR.  II.  c.  2—4. 


59 


78.  An  appeal  from  the  Illinois  county  I 
court  upon  the  question  of  the  amount  fo: 
which  a  claim  against  an  insolvent  estate 
should  be  allowed  is  properly  taken  to  the 
appellate  court.  Levy  v.  Chicago  Nat.  Bank, 
158  III.  88,  42  N.  E.   129,  30:  38i) 

79.  Where  the  probate  court,  in  the  set- 
tlement of  the  estate  of  a  decedent,  deter- 
mines the  liability  of  a  devise,  legacy,  be- 
quest, or  inheritance  to  pay  a  collateral-in- 
heritance tax,  under  the  provisions  of  Ohio 
Rev.  Stat.  §  2731-1,  appeal  may  be  taken, 
by  either  party  to  the  controversy  regarding 
the  tax,  from  the  judgment  of  thfe,  probate 
court  to  the  court  of  common  p'.eas,  as  au- 
thorized by  §  2731-13;  and  where  the  state, 
or  the  prosecuting  attorney  in  behalf  of  the 
state,  takes  the  appeal,  it  may  be  done  with- 
out giving  an  undertaking  for  such  appeal, 
and  without  filing  the  written  notice  of  an 
intention  to  appeal  provided  for  in  §  6408; 
and  the  appeal  may  be  perfected  by  either 
party  according  to  the  provisions  of  §§  6411 
and  5227.  Humphreys  v.  State,  70  Ohio  St. 
67,  70  N.  E.  957,  65:  776 

80.  A  writ  of  error  at  the  instance  of  the 
attorney  general  in  a  criminal  case  may  be 
sued  out  from  the  New  Jersey  court  of  ap- 
peals to  review  a  judgment  of  the  supreme 
court  reversing  a  conviction,  since  such  a 
writ  is  not  only  authorized  by  the  common- 
law  practice,  but  is  expressly  provided  for 
by  N.  J.  act  1799  (2  Gen.  Stat.  p.  1391),  en- 
acting that  errors  happening  in  tlie  supreme 
court  shall  be  heard  by  the  court  of  appeals 
in  all  causes  of  law,  and  that  the  attorney 
general,  in  behalf  of  the  state  or  for  any 
person  damnified  or  aggrieved  by  any  judg- 
ment in  the  supreme  court,  may  sue  forth  a 
writ  of  error.  State  v.  Mej'er  (N.  J.  Err. 
&  App.)  65  N.  J.  L.  233,  47  Atl.  485,    52:  346 

2.  Over  Constitutional   Questions;    Validity 
of  Statutes. 

81.  The  construction  or  application  of  the 
■Constitution  of  Pennsylvania  is  not  involved, 
for  the  purpose  of  an  appeal  to  the  supreme 
court,  by  reason  of  a  so-called  constitutional 
question  which  has  theretofore  been  raised, 
fully  considered,  and  more  than  once  definite- 
ly settled.  De  Walt's  Appeal,  190  Pa.  577, 
42  Atl.  1025,  45:  399 

82.  A  question  as  to  the  constitutionality 
of  a  license  tax  upon  a  merchandise  broker 
is  affirmatively  shown  by  the  record  so  as 
to  give  jurisdiction  to  the  Virginia  court  of 
appeals,  where  a  bill  of  exceptions  has  been 
duly  taken  to  the  refusal  of  an  instruction 
to  find  in  favor  of  the  broker,  if  he  carried 
on  business  only  as  a  resident  sales  agent 
for  nonresident  principals,  although  no  ref- 
erence was  made  in  terms  to  the  commerce 
clause  of  the  Federal  Constitution.  Adkins 
V.   Richmond,   98   Va.   91,   34  S.   E.   967, 

47 :  583 

83.  An  appeal  from  a  judgment  in  an  ac- 
tion by  a  city  against  those  who  refuse  to 
pay  an  amount  charged  to  them  as  a  paving 
assessment,  under  a  statute  authorizing  the 
paving  to  be  carried  on  by  ex  parte  proceed- 
ings  inaugurated  by  municipal  authorities 


alone,  under  an  ordinance  imposing  two 
thirds  of  the  costs  upon  the  abutting  owners, 
without  either  their  knowledge  or  consent, — 
s  within  the  clause  of  La.  Const.  1898,  art. 
35,  extending  the  jurisdiction  of  the  supreme 
court  to  ail  cases  in  which  the  constitution- 
ality or  legality  of  any  tax,  toll,  or  impost 
whatever  shall  be  in  contest,  when  the  de- 
fendants insist  that  the  assessment  under 
the  ordinance  was  not  warranted  by  the 
statute,  ishreveport  v.  Prescott,  51  La.  Ann. 
1895,  26  So.   664,  46:  193 

84.  In  an  action  against  a  county  by  an 
Industrial  school  for  girls,  to  compel  pay- 
ment for  the  support  of  girls  committed  to 
it  under  111.  act  May  28,  1879,  an  appeal 
lies  from  the  circuit  directly  to  the  su- 
preme court,  under  practice  act,  §  88,  relat- 
ing to  questions  as  to  the  validity  of  a  stat- 
ute or  constitution.  Cook  County  v.  Chicago 
Industrial  School  for  Girls,  125  111.  540,  18 
N.  E.   183,  197,  1:437 

3.  Over  Questions  of  Title. 

See  alao  infra,  93. 

85.  A  suit  to  set  aside  a  deed  and  specifi- 
cally enforce  a  contract  for  land  involves  a 
freehold,  within  the  jurisdiction  of  the  Illi- 
nois supreme  court.  Hayes  v.  O'Brien,  149 
HI.  403,  37  N.  E.  73,  23:  555 

86.  A  freehold  is  involved  so  as  to  give 
jurisdiction  to  the  supreme  court  of  Illinois 
of  an  appeal  from  an  order  overruling  a 
motion  to  quash  a  writ  of  possession  in  aid 
of  a  judgment  in  ejectment.  Bowar  v.  Chi- 
cago W.  D.  R.  Co.  136  111.  101,  26  N.  E.  702, 

12:  81 

4.  Amount  Necessary  for  Jurisdiction. 
See  also  infra,  471 ;  Parties,  100. 

87.  The  legislature  may  limit  the  right  to 
appeal  to  cases  involving  at  least  a  specified 
amount  under  constitutional  provisions  that 
the  supreme  court  shall  have  appellate  juris- 
diction only,  which  shall  be  coextensive 
througnout  the  state,  and  that  appeals  shall 
be  allowed  under  such  regulations  as  may 
be  prescribed  by  law.  McClain  v.  Williams, 
10  S.  D.  332,  73  N.  W.  72,  11  S.  D.  60,  75  N. 
W.  391,  43:  287 

88.  A  law  limiting  the  right  to  appeal  to 
cases  involving  at  least  a  specified  amount 
will,  unless  otherwise  "provided,  apply  to 
pending  appeals  as  well  as  to  those  subse- 
quently taken.  Id. 

89.  The  amount  involved  necessary  to  au- 
thorize an  appeal  cannot  be  fixed  at  differ- 
ent sums  in  suits  in  county  and  circuit 
courts  if  in  some  counties  the  two  courts 
have  concurrent  jurisdiction  in  a  large  class 
of  cases  and  the  Constitution  provides  that 
laws  relating  to  courts  shall  have  general 
and  uniform  operation  throughout  the  state, 
and  that  the  practice  of  all  courts  of  the 
same  class  or  grade  so  far  as  regulated  by 
law  shall  be  uniform.  Id. 

90.  Where  a  decree  is  rendered  against 
two  defendants  separately,  on  a  bill  to  com- 
pel contribution,  and  this  is  reversed,  an  ap- 


eo 


APPEAL  AKD  ERROR,  III.  a. 


peal  to  the  supreme  court  of  Illinois  from  a 
decree  of  reversal  cannot  be  sustained  as  to 
one  of  the  defendants  against  whom  the 
judgment  was  for  less  than  $1,000.  Farwell 
V.  Becker,  129  III.  261,  21  N.  E.  792,    6:  400 

91.  Where  an  item  of  statutory  costs  is 
disallowed  by  the  trial  court  in  an  action 
of  which  the  supreme  court  would  have  jur 
isdiction  on  appeal,  the  aggrieved  party  may 
have  such  disallowance  alone  reviewed  in 
the  supreme  court,  notwithstanding  the  fact 
that  siich  item  alone  is  not  sufficient  in 
amount  to  give  that  court  jurisdiction  of  the 
controversy.  Farley  v.  Geisecker,  78  Iowa. 
453,  43  N.  W.  279,  6:  533 

92.  Actions  relating  to  the  existence  of  a 
nuisance  are  not  within  the  provisions  of 
Iowa  Code,  §  3173,  making  the  right  of  ap- 
peal to  the  supreme  court  depend  upon  the 
amount  in  controversy  or  a  certificate  of  the 
trial  judge;  and  they  may  therefore  be  ap- 
pealed to  that  court  without  regard  to  the 
amount  involved.  Id. 
When  title  to  land  involve!. 

93.  The  amount  in  controversy  is  not  ma- 
terial to  the  jurisdiction  of  the  court  of 
appeals  of  Kentucky  when  the  title  to  land 
is  involved.  Stillwell  v.  Duncan,  103  Ky.  59. 
44  S.  W.  357,  39:  863 
In  equitable  proceeding. 

94.  in  equitable  proceedings  an  appeal  lies 
to  the  supreme  court,  irrespective  of  the 
amount  in  controversy.  Bennett  v.  Thome, 
36  Wash.  253,  78  Pac.  936,  68:  113 
What  is  the  amount  in  dispute. 

95.  The  amount  in  dispute  on  an  appeal 
is  the  diflerence  between  the  amount  c.aimed 
and  the  amount  recovered.  Holker  v.  Hen- 
nesiiey,  141  Mo.  527,  42  S.  W.  1090,   ,39:  165 

90.  The  amount  in  dispute  for  the  purpose 
of  determining  jurisdiction  on  appeal  is  that 
claimed  in  the  petition,  where  a  nonsuit  is 
granted,  although  the  sum  allowed  by  the 
jury  on  a  former  trial  was  much  smaller, 
and  the  action  is  for  killing  a  minor  whose 
earninirs  at  the  rate  received  at  the  time  of 
his  death  would  not  have  amounted  to  the 
sum  claimed,  before  his  maturity.  Hennes- 
8v  V.  Bavarian  Brew.  Co.  145  Mo.  104,  46 
S.  W.  906,  41:  385 

97.  An  appeal  involving  the  question  of  a 
garnishee's  liability  on  a  judgment  for  more 
than  $100,  including  costs,  involves  more 
than  $100,  although  the  original  debt,  ex- 
clusive of  costs,  may  have  been  less  than 
$100.  Mivo  V.  Milwaukee  Amusement  Co. 
94  Wis.  010,  69   N.  W.   344,  36:  561 

98.  The  jurisdictional  amount  for  an  ap- 
peal exists  where  a  judgment  for  the  neces- 
sary amount  is  rendered  consistently  with 
the  pleadings,  although  it  includes  exem- 
plary damages.  Thompson  v,  Jackson,  93 
Iowa,  376,  61  N.  W.  1004,  27:  92 


ni.  Transfer  of  Cause;  Parties, 
a.    Right  to  Transfer. 

Equal  Protection   as  to,  in  Criminal  Cases, 

see  Constitutional  Law,  GOl. 
See  also  infra,  405. 


Who  entitled  to. 

Right  of  State  to  Appeal,  see  supra,  53-57. 

For  Editorial  Notes,  see  infra,  XL  §  3. 

99.  A  necessary  party  to  a  judicial  pro- 
ceeding as  a  representative  of  public  author- 
ity, having  no  interest  in  the  litigation  ex- 
cept to  vindicate  such  authority,  is  a  party 
in  interest  and  may  be  a  party  aggrieved 
within  the  meaning  of  the  appeal  statute 
and  the  practice  on  review  on  writs  of  er- 
ror. State  ex  rel.  Burner  v.  Huegin,  110 
Wis.  189,  85  N.  W.  1046,  62:  700 

100.  If,  in  a  habeas  corpus  suit  against  a 
sheriff,  he  is  required  to  restore  his  prisoner 
to  liberty,  he  is  a  party  aggrieved  within  the 
rule  that  only  such  a  party  is  entitled  to  be 
heard  on  appeal  or  review  on  writ  of  error. 

Id. 

101.  The  right  to  appeal  as  a  party  "ag- 
grieved" does  not  extend  to  executors  who 
have  obtained  a  judgment  construing  a  will 
IS  to  which  of  two  parties  is  entitled  to  a 
certain  bequest,  where  the  alleged  claimants 
acquiesce  in  the  decision.  Bryant  v.  Thomp- 
son, 128  N.  Y.  426,  28  N.  E.  522,         13:  745 

102.  Persons  who  are  served  and  appear  as 
stockholders  in  a  proceeding  against  a  cor- 
poration to  assess  the  additional  liability 
of  stockholders  for  payment  of  its  debts  be- 
come parties  to  the  proceeding  so  as  to  be 
entitled  to  appeal  from  the  decree.  Bennett 
V.   Tnorne,  36  Wash.   253,   78   Pac.   936, 

6S:  113 

103.  A  mortgagor  cannot  appeal  from  an 
order  appointing  a '  receiver  of  the  mort- 
gaged property  on  the  ground  that  it  in- 
cludes a  tenement  in  possession  of  a  tenant 
who  has  paid  his  rent  for  a  term  beyond 
the  redemption  period  of  the  mortgage. 
Thorpe  V.  Mindeman,  123  Wis.  146,  101  N.  W. 
417,  68:  146 

104.  An  allegation  by  a«  appellant  that  he 
is  "aggrieved  both  as  an  heir  at  law  and 
next  of  kin"  is  a  mere  averment  of  a  legal 
conclusion,  and  not  sufficient  to  show  a  right 
to  appeal,  where  the  facts  set  up  show  that 
his  claim  is  without  foundation.  Camp- 
bell's Appeal,  64  Conn.  277,   29  Atl,  494, 

24:  667 

105.  Trustees  representing  a  religious  so- 
ciety to  which  a  devi.se  was  made  in  trust 
to  expend  the  proceeds  in  saying  masses  are 
proper  parties  to  appeal  from  a  decision 
against  the  devise.  Hoeflfer  v.  Clogan,  171 
111.  462,  49  N.  E.  527,  40:  730 

1C6.  On  the  death  of  an  administrator 
against  whom  a  decree  for  the  payment  of 
money  out  of  the  assets  of  the  estate  ha.s 
been  rendered,  the  proper  party  to  appeal  is 
not  his  administrator,  but  an  administrator 
de  bonis  non.  Miller  v.  McMechen,  33  W. 
Va.  197,  10  S.  E.  378.  6:  515 

107.  An  administrator  de  boms  non  need 
not  make  himself  a  formal  party  to  the  rec- 
ord in  order  to  appeal  from  a  decree  against 
his  predecessor,  who  is  dead,  but  may  simply 
petition  for  an  appeal,  stating  the  other's 
death  and  exhibiting  his  own  appointment. 

Id. 

108.  The  ne^t  friend  of  an  insane  person 
in  a  writ  of  error  is  not  necessarily  the  same 
person  who  represented  him  as  guardian  ad 


APPEAL  AND  ERROR,  III.  b.  c. 


61 


litem  in  the  lower  court,  since  the  incapac- 
ity of  the  insane  person  to  change  his  rep- 
resentative does  not  prevent  the  court  from 
making  the  change.  lago  v.  lago,  168  111. 
339,  48  N.  E.  30,  39:  115 

Leave  to  appeal. 

109.  Ihe  finding  of  facts  by  the  presiding 
judge  for  the  pur{K)se  of  an  appeal  is  suffi- 
cient evidence  as  to  permission  to  appeal,  al- 
though formal  permission  should  appear  on 
the  record.  State  v.  Lee,  65  Conn.  265,  30 
Atl.  1110,  27:498 

110.  An  application  for  an  appeal  to  the 
supreme  court  of  Pennsylvania  sh&iild  be  by 
petition  stating  clearly  and  distinctly  the 
reasons,  so  that  the  court  or  any  of  its  jus- 
tices may  readily  determine  whether  it  is 
within  the  letter  as  well  as  the  spirit  of  the 
superior  court  act.  De  Walt's  Appeal,  190 
Pa,  577,  42  Atl.  1025,  45:  399 

b.  Effect;  Subesquent  Proceedings  in  Court 
Below. 

In  Bankruptcy,  see  Bankruptcy,  2. 

Vacating  Levy  Pending  Proceedings  in  Er- 
ror, see  Courts,  425. 

From  Order  Admitting  Will  to  Probate,  see 
Executors  and   Administrators,  142. 

Suspension  of  Judgment  Pending  Appeal,  see 
Judgment,  312. 

See  also  infra,   150,  151. 

For  Editorial  Notes,  see  infra,  XL  §  9. 

111.  The  trial  court  may  correct  a  cleri- 
cal error  in  the  amount  of  the  judgment  en- 
tered, after  the  record  has  been  removed  to 
a  higher  court  by  appeal.  Kindel  v.  Beck  & 
P.  Lithographing  Co.  19  Colo.  310,  35  Pac. 
538,  24:  311 

112.  Praying  an  appeal,  without  taking 
«.ny  further  steps,  does  not  defeat  the  juris- 
diction of  the  trial  court  to  entertain  a  biil 
of  review.  State  ex  rel.  Terre  Haute  v. 
Kolsem,  130  Ind.  434,  29  N.  E.  595,       14:  566 

113.  The  filing,  in  a  probate  court,  of  a 
transcript  of  the  proceedings  of  a  circuit 
court  in  a  will  contest,  does  not  give  the 
probate  court  any  jurisdiction  to  revoke  the 
administration  pendente  lite,  since  the  atti- 
tude of  the  circuit  court  towards  the  pro- 
bate court  is  that  of  an  appellate  court,  and 
the  result  of  the  will  contest  in  the  circuit 
court  can  reach  the  j-...bate  court  only 
through  a  certificate  from  the  former  to  the 
latter.  State  ex  rel.  Hamilton  v.  Guinotte, 
156  Mo.  513,  57  S.  W.  281,  50:  787 
Supersedeas;  stay. 

.Supersedeas   Bond,  see   infra,   1267-1269. 
KfUect  of  Failure  to  Ask  for  Stay,  see  New 

Trial,  61. 
See  also  infra,  1G8. 
For  Editorial  Notes,  see  infra,  XL  §  9. 

114.  An  order  of  supersedeas  to  preserve 
the  status  quo  of  the  parties  pending  the 
determination  of  an  appeal  upon  Its  merits 
is  within  the  inherent  powers  of  an  appel- 
late tribunal  which  is  authorized  to  issue  all 
writs  necessary  and  proper  to  the  complete 
exercise  of  its  appellate  and  revisory  juris- 
diction. State  ex  rel.  Barnard  v.  Seattle  Bd. 
of  EdH.  19  Wash.  8,  52  Pac.  317,        40:  317 


115.  An  order  appointing  a  receiver  for  a 
dissolved  corporation  is  suspended,  undor 
Cal.  Code  Civ.  Proc.  §  949,  by  an  appeal  from 
the  judgment  declaring  the  forfeiture,  where 
the  requisite  undertaKing  is  given.  Have- 
meyer  v.  San  Francisco  Super.  Ct.  84  Cal. 
327,  24  Pac.   121,  10:  627 

116.  The  effect  of  a  conviction  of  felony 
as  a  ground  for  disbarring  an  attorney  is 
not  annulled  by  a  writ  of  error  and  super- 
sedeas. Re  Kirby,  10  S.  D.  322,  73  N.  W.  92, 
10  S.  D.  414,  73  N.  W.  907,  39:  856 

117.  A  stay  of  an  order  of  discharge  in  a 
habeas  corpus  case  may  be  made  by  the  ap- 
pellate court  without  fixing  any  terms,  un- 
der Ohio  Rev.  Stat.  §  6725,  providing  for  a 
stay  of  execution  of  a  judgment  or  final  or- 
der on  such  terms  as  may  be  prescribed. 
Henderson  v.  James,  52  Ohio  bt.  242,  3 J  N. 
E.  805,  27:  290 

118.  Granting  a  stay  of  execution  by  an 
appellate  court  pending  an  appeal  in  a  capi- 
tal case  is  not  a  reprieve  within  the  mean- 
ing of  a  constitutional  provision  giving  to 
the  governor  the  power  to  grant  reprieves; 
and  a  statute  authorizing  such  stay  merely 
declares  the  inherent  power  of  the  court,  in- 
dependent of  any  statutory  provision.  Par- 
ker V.  State,  135  Ind.  534,  35  N.  E.  179, 

23:  859 

c.  Parties. 

Who  Entitled  to  Appeal,  see  also  supra,  99- 

108. 
See  also  supra,  79;  infra,  134. 
For  Editorial  Notes,  see  infra,  XL  §§  3,  6. 

119.  A  defendant  who  has  succeeded  to  the 
rights,  whatever  they  are,  of  codefendants, 
may  join  them  with  him  in  prosecuting  an 
appeal.  Andrews  v.  National  Foundry  &  P. 
Works,  22  C.  C.  A.  110,  46  U.  S.  App.  281, 
76  Fed.   166,  36:  139 

120.  A  writ  of  error  to  review  a  joint 
judgment  against  defendants  only  one  of 
whom  is  named,  except  by  the  abbreviation 
et  al.,  is  fatally  defective  for  the  want  of 
necessary  parties.  State  ex  rel.  Andreu  v. 
Canfieid,  40  Fla.  36,  23  So.  591,  42:  72 

121.  An  amendment  to  bring-  in  new  par- 
ties plaintiff  in  error  is  a  new  writ  which 
cannot  be  allowed  after  the  expiration  of 
the  time  limited  for  suing  out  writs  of  er- 
ror. Id. 
Death  of  party  below. 

122.  A  motion  to  strike  from  the  title 
of  a  case  on  appeal  the  name  of  a  party  who 
died  pending  the  hearing  below  will  be 
granted,  where  his  entire  interest  is  repre- 
sented by  another  party  to  the  suit,  and  no 
injustice  can  follow  tne  granting  of  the  mo- 
tion. Johnston  v.  Little  Horse  Creek  Irrig. 
Co.  13  Wyo.  208,  79  Pac.  22,  70:  341 
Who  are  necessary  parties. 

See  also  infra,  X. 

For  Editorial   Notes,  see  infra,  XL  §  6. 

123.  Parties  to  the  record,  but  not  parties 
to  the  judgment,  are  not  required  to  be 
made  parties  on  appeal,  or  to  be  serve;l  with 
notice.  Lowe  v.  Turpie,  147  Ind.  G52,  44 
N.  E.  25,  47  N.  E.  150,  37:  233 


«3 


APPEAL  AND  ERROR,  IH.  d— f. 


124.  Coparties  to  a  judgment  need  not  be 
made  coappellants  in  a  term-time  ap'^^nl.  in 
any  case  pending  when  Ind.  act  1895,  p. 
179,  took  effect.  Id. 

125.  An  appeal  by  the  owners  of  the  prop- 
erty from  a  decision  establishing  a  mechan 
ic's  lien  can  be  maintained  without  joining 
other  defendants,  under  Mills's  (Colo.)  Ann 
Stat.  §  1085,  which  provides  that  appeals 
may  be  taken  by  any  person  aggrieved. 
Davidson  v.  Jennings,  27  Colo.  187,  60  Pac. 
354,  48:  340 

d.  Mode;  Conditions;  Regukitiona. 

See  also  supra,  110. 

For  Editorial  Notes,  see  infra,  XL  §  4. 

126.  Practice  on  appeal  in  an  admiralty 
case  to  a  territorial  supreme  court  is  regu- 
lated by  rules  and  usages  oi  courts  of  ad- 
miralty, and  not  by  territorial  statutes. 
•Braithwaite  v.  Jordan,  5  N.  D.  196,  65  N.  W. 
701,  31:238 

127.  An  appeal  in  a  suit  by  the  creditor 
of  a  legatee  against  him  and  the  administra- 
tor to  reach  money  in  the  tatter's  hands  is 
not  subject  to  the  provisions  of  Ind.  Rev. 
Stat.  1881,  §§  2454,  2455,  respecting  appeals 
in  proceedings  for  settlement  of  decedents' 
estates.  Koons  v.  Mellett,  121  Ind.  585,  23 
if  E.  95,  7:  231 

128.  An  affidavit  for  appeal  from  the  deci- 
sion of  a  circuit-court  commissioner  to  the 
circuit  court,  in  a  summary  proceeding  by  a 
landlord  to  recover  possession  of  the  leased 
premises  from  his  tenant,  is  sufficient  if  in 
the  common  form  of  affidavits  on  appeal 
from  justices'  courts,  although  it  does  not 
state  the  nature  of  the  action,  nor  when  it 
arose,  nor  when  it  was  tried.  Hanaw  v. 
Bp'--^.  »a  M'ch.  24,  46  N.  W.   1039,     9:  801 

129.  The  allowance  of  an  appeal  within 
the  time  prescribed  by  law  is  sufficient  to 
remove  tlie  case  to  the  appellate  court,  al- 
though the  appeal  is  not  perfected  by  the 
filinw  of  the  bond  and  issuance  of  service  of 
citation  within  that  time.  Columbia  Iron- 
works v.  National  Lead  Co.  62  C.  C.  A.  99. 
127  Fed.  99,  64:645 
Writ  of  error. 

For  Editorial   Notes,  see  infra,  XL  §   4. 

130.  A  writ  of  error  must  be  returned 
with  the  record  in  the  cause,  or,  at  the  lat- 
est, by  its  return  day,  and  must  have  in- 
dorsed on  it  a  certificate  of  its  record  in  the 
minute  book  of  the  circuit  court,  under  Fla. 
Laws  1897,  chap.  452D,  which  makes  such 
record  a  suVstitute  for  other  notice  of  the 
writ.  State  ex  rel.  Andreu  v.  Canfield,  40 
Fla.  36,  23  So.  591,  42:72 

131.  A  writ  of  error  issued  from  the  Fed- 
eral Supreme  Court  for  the  purpose  of  re- 
viewing the  decision  of  a  state  court  is  prop- 
erly directed  to  the  inferior  state  court 
where  the  judgment  of  the  highest  state 
court  was  oixiered  to  be  entered,  and  where 
the  record,  remained.  Wedding  v.  Mevler. 
192  U.  S.  573,  48  L.  ed.  570,  24  Sup.  Ct.  Ren. 
3-22.  66:  833 
Joining  several  orders  in  one  appeal. 

132.  Several  interlocutory  orders  granting 
temporary  injunctions  and  refusing  to  dis- 


solve them  may  be  brought  before  the  su- 
preme court  by  a  single  appeal,  if  made  in 
the  same  case,  and  the  appeals  are  taken  in 
proper  time,  under. a  statute  allowing  an  ap- 
peal from  such  orders.  Gagnon  v.  French 
l.ick  Springs  Hotel  Co.  163  Ind.  687,  72  N. 
E.  849,  68:  175 

e.  Citation;  Notice;  Appearance. 

Due  Process  in  Giving  Notice,  see  Consti- 
tutional  Law,  868. 

Notice  of  Appeal  from  Justice's  Judgment, 
see  Justice  of  the  Peace,  23,  24. 

See  also  supra,  79;  infra,  152,  225,  377. 

For  Editorial  Notes,  see  infra,  XI.  §  4. 

133.  A  notice  of  appeal  is  not  insufficient 
because  of  a  clerical  mistake  in  giving  the 
date  of  the  order  appealed  from  as  the  11th 
instead  of  the  10th  day  of  a  certain  month. 
Paul  v.  Cragnas,  25  Nev.  293,  59  Pac.  857, 
60  Pac.  983,  47:  540 

134.  Notice  of  appeal  to  coparties  need 
not  be  given,  under  Ind.  Rev.  Stat.  1881, 
§  035,  where  no  judgment  is  rendered  against 
them  and  they  have  no  interest  in  the  ap- 
peal. Koons  v.  Mellett,  121  Ind.  585,  23  N. 
E.  95,  7:231 

135.  The  provisions  of  a  statute  requiring 
the  record  by  the  clerk  of  the  circuit  court 
of  a  writ  of  error  in  the  minute  book  of 
his  court  as  a  substitute  for  other  notice 
must  be  strictly  complied  with  in  order  to 
give  jurisdiction.  State  ex  rel.  Andreu  v. 
Canfield,  40  Fla.  36,  23  So.  691,  42:  72 
Acceptance  of  service. 

136.  A  general  acceptance  of  service  of 
citation  on  appeal  by  an  attorney  is  good 
for  all  parties  whom  he  represents  of  record. 
Andrews  v.  National  Foundry  &  P.  Works, 
22  C.  C.  A.  110,  46  U.  S.  App.  281,  76  Fed. 
166,  36:  139 
Appearance. 

See  also  infra,  373. 

For  Editorial  Notes,  see  infra,  XI.  §  4. 

137.  Making  a  motion  to  dismiss  an  ap- 
peal on  'the  ground  that  the  decree  below 
was  not  liual  constitutes  an  appearance  in 
the  appellate  coi-tt.  Andrews  v.  National 
Foundry  &  P.  Works,  22  C.  C.  A,  110,  46  U. 
S.   App.  281,   76   Fed.    166,   619,  36:  139 

138.  That  a  joinder  in  error,  indorsed  upon 
the  record  and  signed  by  attorneys  who  des- 
ignated themselves  as  attorneys  for  appel- 
lees, was  unauthorized,  will  not  defeat  the 
jurisdiction  on  appeal  if  the  appellees  have 
otherwise  appeared  in  the  appellate  court. 
Lowe  V.  Turpie,  147  Ind.  652,  44  N.  E.  25, 
47  N.  E.  150,  37:  233 

f.  Time. 

Sufficient  Filing  on  Sunday  of  Application 

for  Writ,  see  Filing. 
See   also    supra.    121,    129,    130,   infra,    152, 

197,  374,   376. 
For  Editorial  Notes,  see  infra,  XL  §  5. 

139.  There  is  no  limitation  upon  the  time 
within  which  an  appeal  will  lie  from  an  in- 
terlocutory decree  sett.ing  the  principles  of 

a  cause.     The  limitation  of  one  year  upon 


APPEAL  AND  ERROR.  IIL  g. 


63 


the  time  for  appealing  provided  by  Va.  Code. 
§  3455,  runs  only  as  against  a  final  decree. 
Jameson  v.  Major,  86  Va.  51,  9  S.  E.   480. 

3:  773 

140.  A  judgment  that  one  of  the  parties 
to  an  election  contest  is  the  duly  elected 
officer,  and  that  he  is  entitled  to  the  office 
on  performing  necessary  acts,  is  not  a  judg- 
ment in  which  an  election  hns  been  "an- 
nulled and  set  aside,"  within  Nev.  Gen.  Stat. 
§  1569,  requiring  the  appeal  in  such  case  to 
be  taken  within  thirty  days.  Buckner  v. 
L,ynlp,  22  Nev.  420,  41  Pac.  762,      ^     30:  354 

141.  The  provision  of  Fla.  act'^Iay  11, 
1893,  chap.  4130,  that  all  appeals  in  chan- 
cery, whether  from  final  decrees  or  interloc- 
utory orders,  must  be  taken  within  six 
months  after  the  entry  of  the  decree  or  or- 
der appealed  from,  has  no  retroactive  effect, 
but  applies  only  to  decrees  and  orders  en- 
tered after  the  act  took  effect,  which  was 
Aug.  1,  1893,  or  sixty  days  after  the  final 
adjournment  of  the  legislature.  Sammis 
V.  Bennett,  32  Fla.  458,  14  So.  90,  22:  48 
For  cross  petition. 

142.  A  defendant  in  error  against  whom, 
as  cross  petitioner  in  the  trial  court,  a  judg- 
ment had  been  rendered  which  is  in  favor  of 
all  the  other  parties  to  the  suit,  and  to 
which  no  error  is  assigned  by  another  party, 
is  required  to  file  his  cross  petition  in  error 
within  two  years  alter  the  rendition  of  such 
judgment,  in  order  to  obtain  its  reversal. 
Mannix  v.  Furceil,  46  Ohio  St.  102,  19  N.  E. 
572,  2:  753 
Computation  of. 

Exclusion  of  Sunday,  see  Time,  27. 
For  Editorial  Notes,  see  infra,  XI.  §  5. 

143.  In  computing  the  time  for  taking  ap- 
peals under  a  statute  excluding  hoiidays 
from  the  number  of  days  specified,  half  holi- 
days established  by  law  should  be  taken  into 
account,  and  their  aggregate  added  to  the 
time  shown  by  the  calendar.  Ocumpaugh  v. 
Norton,  24  D.  C.  App.  296,  08:  2/2 

144.  Ihe  date  of  the  tiling  of  a  decree 
with  the  clerk,  and  nut  that  upon  which  it 
was  signed,  is  the  time  of  its  rendition  with- 
in the  meaning  of  §  25  of  the  bankruptcy 
act  of  18t»8,  requiring  au  appeal  to  be  taken 
within  ten  days  Irom  that  time,  where  it 
does  not  appear  where  the  decree  was  be- 
tween the  dates  of  signature  and  filing. 
Peterson  v.  Nash  Bros.  50  C.  C.  A.  260,  112 
Fed.  311,  55:  344 

g.  Security. 

Liability,  on  Bond,  see  infra,  X. 

Necessity. 

See  also  supra,  79. 

For  Editorial  Notes,  see  infra,  XI.  §  8. 

145.  No  bond  is  necessary  on  appeal,  in 
a  will  contest,  from  the  circuit  court  to  the 
supreme  court  of  Missouri,  in  order  to  con- 
tinue an  administration  granted  during  the 
time  of  the  contest,  since  the  appeal  itse.f, 
from  the  very  nature  and  necessity  of  the 
case,  carries  its  own  supersedeas  along  with 


it.    State  ex  rel.  Hamilton  v.  Guinotte,  l.'ifi 
Mo.  513,  57  S.  W.  281,  50:  787 

146.  The  court  cannot  eliminate  an  invalid 
orovision  for  a  recognizance,  from  a  statute 

iroviding  therefor  as  a  condition  of  appeal 

from  a  conviction,  in  order  to  sustain   the 

statute  as  authorizing  an  appeal  without  a 

recognizance.    State  v.  Gerry,  68  N.  H.  495, 

38  Atl.  272,  38:  228 

SuflSciency. 

For  Editorial  Notes,  see  infv-a,  XT.  §  8. 

147.  An  undertaking  on  appeal  is  not  vi- 
tiated by  a  mere  clerical  mistake  in  stating 
the  date  of  the  order  appealed  from.  Paul 
V.  Cragnas,  25  Nev.  293,  59  Pac.  857,  60  Pac. 
983,  47:  540 

148.  Defendant  in  error  in  the  Virginia 
supreme  court  of  appeals  waives  the  omis- 
sion from  the  appeal  bond,  given  before  the 
clerk  as  prescribed  by  Va.  Code,  §  3471,  of 
the  condition  for  the  paj'ment  of  all  actual 
damages  incurred  in  consequence  of  the  pro- 
ceedings, by  failing  to  raise  the  objection 
until  it  is  too  late  for  plaintiff  to  give  a 
new  bond  or  to  have  another  appeal  allowed. 
Virginia  F.  &  M.  Ins.  Co.  v.  New  York  Ca- 
rousal Mfg.  Co.   95  Va.  515,   28   S.   E.  888, 

40:  237 
Who  may  be  surety  on. 
Corporation,  see  Corporations,  137,  138. 
For  Editorial  Notes,  see  infra,  XL  §  8. 

149.  An  executor  acting  in  his  individual 
capacity  is  competent  as  surety  on  an  appeal 
bond  for  a  legatee  who  has  appealed.  Suc- 
cession of  Meunier,  52  La.  Ann.  79,  26  So. 
776,  48:  77 
Amount. 

For  Editorial  Notes;  see  infra,  XL  §  8. 

150.  The  amount  of  a  suspensive  appeal 
bond  may  be  fixed  by  the  trial  judge,  where 
the  judgment  annulled  a  will  and  probate 
thereof,  recognizing  plaintiffs  as  heirs,  but 
did  not  in  terms  send  them  into  possession 
nor  make  an  award  against  the  executors 
specifically  for  the  net  proceeds  of  the  es- 
tate in  their  hands.  Succession  of  Meunier, 
52  La.  Ann.  79,  26  So.  776,  48:  77 

151.  An  appeal  and  supersedeas  bond  in 
the  sum  of  $250  is  sufficient,  in  case  of  an 
appeal  from  a  judgment  dismissing  the  ac- 
tion with  $10  costs,  under  a  statute  requir- 
ng  the  penalty  of  an  anpeal  bond  to  be  not 
less  than  $200,  and,  "in  order  to  effect  a 
stay  of  proceedings  where  the  appeal  is 
from  a  final  judgment  for  the  recovery  of 
money,  it  shall  be  in  a  penalty  double  the 
amount  of  damages  and  costs  recovered  in 
such  judgment."  West  Coast  Mfg.  &  I.  Co. 
v.  West  Coast  Improv.  Co.  25  Wash.  627, 
06  Pac.  97,  62:763 
Time  for  giving. 

For  Editorial  Notes,  see  infra,  Al.  §  8. 

152.  The  execution  of  an  undertaking  on 
appeal  before  the  notice  of  appeal  is  filed 
will  not  make  the  undertaking  insutticient, 
if  it  is  filed  after  the  filing  of  the  notice  of 
appeal,  as  the  statute  recjuires.  Paul  v. 
Cragnas,  25  Nev.  293,  69  Pac.  857.  60  Prc. 
983,  47:540 


64 


APPEAL  AND  ERROR,  IV.  a— d. 


IV.  Record  and  Case  in  Appellate  Court, 
a.  In  General. 

Presumptions    Arising    from    Condition    of 

Record,  see  infra,  VII.  d. 
For  Editorial  Notes,  see  infra,  XI.  §  7. 

153.  Facts  not  appearing  in  the  record 
cannot  be  considered  in  the  decision  of  an 
appeal.  Fordham  v.  Northern  P.  R.  Co.  30 
Mont.  421,  76  Pac.   1040,  66:  55G 

154.  The  party  relying  on  the  exception 
in  a  statute  permitting  appeal  from  judg- 
ments or  orders  finally  determining  actions, 
excepting  unanimous  decisions  that  there  is 
evidence  to  sustain  a  finding  of  fact,  must 
show  from  the  record  that  the.  decision  was 
unanimous.  Laidlaw  v.  Sage,  158  N.  Y.  73, 
52  N.  E.  679,  44:  216 

155.  To  get  an  omitted  fact  into  the 
record  for  the  purpose  of  presenting  a  ques- 
tion of  law  under  Conn,  act  1897,  it  must 
appear  to  have  been  an  admitted  or  undis- 
puted fact,  and  that  its  statement  is  neces- 
sary to  present  properly  a  question  of  law 
decided  adversely  to  appCilant.  Hoadley  v. 
Savings  Bank  of  Danbury,  71  Conn.  599,  42 
Atl.  667,  44:  321 

156.  A  refusal  to  assess  damages  for  in- 
jury to  a  water  power  is  not  shown,  so  as 
to  present  a  question  of  law  on  appeal, 
where  there  is  no  expression  of  intention  to 
that  effect,  and  evidence  was  taken  on  the 
subject,  and  an  award  to  the  claimant  is 
maue  in  gr^^ss  without  items.  Re  Thompson. 
127  N.  Y.  463,  28  N.  E.  389,  14:  52 

157.  On  appeal  from  a  conviction  of  mur- 
der, where  the  record  recites  the  going  into 
court  of  defendant  and  his  counsel,  the  call- 
ing and  coming  in  of  the  jury,  the  continu- 
ance of  the  trial,  the  argument  of  counsel, 
the  instructions  to  the  jury,  their  retire- 
ment, and  the  return  of  the  jury  into  court 
with  the  verdict,  and  the  verdict  itself,  all 
in  one  entry,  it  sufficiently  shows  defend- 
ant's presence  at  the  rendition  of  the  ver- 
dict. I  rumble  v.  Territory,  3  Wyo.  280,  21 
Pac.  1081,  6:  384 
Record  of  other  appeal. 

158.  In  considering  a  cause  on  appeal  the 
court  may  proper.}^  look  into  the  record  of 
another  appeal  in  a  suit  between  the  same 
parties  which  it  has  recently  decided.  Salt 
Lake  City  v.  Salt  Lake  City  Water  &  E.  P. 
Co.  24  Utah,  249,  67  Pac.  672,  61:048 
Striking  out. 

See  also  infra,  210,  211. 

159.  Papers  which  constitute  no  part  of 
the  record  on  appeal  may  be  struck  out  on 
motion.  Paul  v.  Cragnas,  25  Nev.  293,  59 
Pac.   857,  00   Pac.  983,  47 :  540 

b.  What  Should  be  Shown  by. 

See  also  infra,  220,  221. 

For  Editorial  Notes,  see  infra,  XI.  §  7. 

100.  To  show  error  in  the  refusal  to  per- 
mit a  witness  to  answer  a  question  it  must 
appear  what  was  expected  or  proposed  to  be 
provwl  i)v  him.     Tnirn  C.  L.  Ins.  Co.  v.  Pol- 
lard, 94  Va.  140,  20  S.  E.  421,  36:  271 


161.  The  omission  of  a  statement  in  an 
order  of  reversal  by  an  appellate  court,  that 
the  reversal  was  upon  the  facts,  is  imma- 
terial in  a  case  where  there  are  no  disputed 
questions  of  fact.  Buffalo  &  L.  Land  Co. 
V.  Be.levue  Land  &  L  Co.  165  N.  Y.  247,  59 
N.  E.  5,  51 :  951 

162.  On  appeal  from  a  conviction  for  crime 
the  record  need  not  affirmatively  show  that 
defendant  was  furnished  with  a  copy  of  the 
indictment  and  a  list  of  jurors,  before  ar- 
raignment, as  required  by  statute.  Parker 
V.  People,  13  Cola.  155,  21  Pac.  1120,     4:  803 

c.  Contradictions  in. 

See  also  infra,  170,  397. 

163.  The  return  of  process  contained  in 
the  record  on  appeal  must  control  the  find- 
ing of  the  court,  when  they  are  contradict- 
ory. Lonkey  v.  Keyes  Silver  Min.  Co.  21 
Nev.  312,  31  Pac.  57,  17:  351 

164.  Evidence  outside  of  the  transcript  is 
inadmissible  on  appeal  to  show  that  a  mo- 
tion stated  therein  to  be  made  by  one  of  the 
parties  was  in  fact  made  by  the  other.  Nor- 
wegian Plow  Co.  v.  Bollman,  47  Neb.  186, 
66  N.  W.  292,  31:  747 

165.  A  certificate  to  the  bill  of  exceptions 
stating  that  it  contains  all  the  evidence  will 
not  be  conclusive  against  statements  in  the 
bill  to  the  contrary.  Greene  v.  Greene,  4i) 
Neb.  546,  68  N.  W.  847,  '  34:  110 

166.  'iiie  certificate  of  the  judge  that  a 
transcript  contains  all  the  evidence  will  be 
accepted  as  true  against  an  objection  that 
the  evidence  is  not  all  included,  in  the  ab- 
sence of  any  specific  reference  to  show  that 
fact.  Spencer  v.  Andrew,  82  Iowa,  14,  4/  N. 
W.  1007,  12:  115 

d.  Amending. 

For  Editorial  Notes,  see  infra,  XI.  §  7. 
See  also  infra,  177. 

167.  Leave  to  file  a  supplemental  record  in 
support  of  a  petition  for  renearing  will  not 
be  granted  to  bring  up  proceedings  of  the 
trial  court  which  occurred  subsequent  to  the 
final  judgment;  if  the  matters  were  all  with- 
in the  knowledge  of  the  plaintiff  in  error  be- 
fore the  original  bill  of  exceptions  was  ap- 
proved and  signed.  Clipper  Min.  Co.  v.  Eli 
Min.  &  L.  Co.  29  Colo.  377,  68  Pac.  286, 

64:  209 

168.  A  supreme  court  which  has  arrested 
a  judgment  of  conviction  in  a  criminal  case 
because  of  a  fatal  defect  in  the  indictment 
as  presented  to  it  may,  even  after  the  close 
of  the  term,  grant  the  state  the  opportunity 
to  correct  the  record  so  as  to  show  that  the 
alleged  defect  did  not  exist,  and  proceed  to 
hear  the  appeal  upon  the  corrected  record. 
State  V.  Marsh,   134  N.  C.  184,  47   S.  E.  6, 

67:  179 
109.  A  certiorari  wiil  not  be  granted  to  i»- 
corporate  in  a  case  settled  an  exception 
which  appellant  has  waived  by  failure  to 
set  it  out  in  his  statement  of  case  on  ap- 
peal. State  V.  Black,  109  iN.  C.  850,  13  S.  E. 
877,  "  14:  205 


APPEAL  AND   ERROR,  IV.  e— h. 


65 


e.  AfiBdavita. 

See  also  infra,  806. 

170.  Affidavits  as  to  oral  agreements  be- 
tween counsel  will  not  be  considered  on  ap- 
peal, under  Iowa  Code,  §  213,— at  least  so 
far  as  they  are  in  conflict.  Hardin  v.  Iowa 
R.  &  Conatr.  Co.  78  Iowa,  726,  43  N.  W.  543, 

6:  52 

171.  Orders  of  the  trial  court  dismissing 
the  regalar  panel  of  jurors,  and  summoning 
a  nf»w  on?.  C'^nnot  be  sufficiently  authenti- 
cated by  affidavit  of  a  party  to  the  suit  to 
justuy  tiieir  consideration  on  ap^al.  Mc- 
Kinney  v.  State,  3  Wyo.  719,  30  Pac.  293, 

16:  710 

172.  Affidavits  are  not  admissible  in  an 
appellate  court  to  show  that  a  bill  of  excep- 
tions was  improperly  allowed  and  signed  by 
the  trial  judge,  where  it  was  allowed,  signed, 
and  filed  as  a  part  of  the  record  during  term 
time.  The  record  cannot  be  attacked  in 
that  way.  East  Line  &  R.  R.  R.  Co.  v. 
Culberson,  72  Tex.  375,  10  S.  W.  706,     3:  567 

f.  Evidence. 

See   also   supra,   164,   166;    infra,   216,   218, 
224,  230,  232,  233,  406,  718. 

173.  An  appeal  from  the  judgment  alone 
in  a  contested  election  case  will  take  to 
the  South  Dakota  supreme  court  the  written 
evidence  on  which  the  findings  of  fact  are 
based.  McMahon  v.  Polk,  10  S.  D.  296,  73 
N.  W.  77,  47:  830 

174.  The  evidence  taken  by  a  master  in 
chancery  and  duly  reported  by  him  to  the 
court  appointing  him  is  a  part  of  the  record 
in  that  court,  and  when  specified  in  the  bill 
•of  exceptions  as  material  is  properly 
brought  to  the  Georgia  supreme  court  in  the 
certified  transcript.  Green  v.  Coast  I,ine 
R.  Co.  97  Ga.  15,  24  S.  E.  814,  33:806 

175.  A  translation  of  evidence  by  the 
short  band  reporter,  not  containing  the  name 
of  the  cause  except  by  an  indorsement  on 
the  outside,  whic'h  is  not  in  the  handwriting 
of  the  reporter,  and  is  not  referred  to  in  the 
certificate,  ana  is  not  identified  in  any  other 
manner, — is  not  sufficiently  identified  to  be- 
come a  part  of  the  record,  though  inserted 
in  the  proper  place  in  a  skeleton  bill  of  ex- 
ceptions. Joy  v.  Bitzer,  77  Iowa,  73,  41  N. 
W.  575,  3:  184 

176.  A  ruling  admitting  evidence  will  not 
be  reviewed  if  the  evidence  is  not  referred  to 
as  required  by  the  rules  and  practice  of  the 
court.  Skaggs  v.  Martinsville,  140  Ind.  476, 
39  N.  E.  241,  33:  781 
Documentary  evidence;  exhibits. 
Stenographer's  Notes,  see  infra,  IV.  g. 

See  also  infra,  232,  233. 

177.  When  any  document  is  offiered  in  evi- 
dence and  excluded,  it  must  be  brought  into 
the  record  to  have  its  con-i'?tency  deter- 
mined on  appeal.  Slauson  v.  Goodrich 
Transp,  Co.  99  Wis.  20,  74  N.  W.  574, 

40:  825 

178.  The  right  result  of  a  case  on  its  mer- 
its will  not  be  aisturbed  because  the  record 
•of  a  jndgment  referred  to  in  the  petition  was 

L.R.A.  Dig.— 5. 


not  copied  and  annexed  as  an  exhibit. 
Lyons  v.  Planters'  Loan  &  Sav.  Bank,  86 
Ga.  485,  12  S.  E.  882,  12:  J  56 

179.  Attaching  a  certified  copy  of  a  jus- 
tice's judgment  as  an  exhibit  to  a  complaint 
to  enjoin  the  execution  of  a  judgment  does 
not  make  it  a  part  of  the  record  so  that  it 
can  be  considered  on  appeal.  Gum- Elastic 
Roofing  Co.  V.  Mexico  Pub.  Co.  140  Ind.  158, 
39  N.  E.  443,  30:  700 

180.  A  deposition  affixed  to  bill  of  excep- 
tions only  by  placing  it  between  the  paste- 
board back  and  the  stenographer's  report,  al- 
though held  with  sufficient  tenacity  to  re- 
tain its  place,  but  not  marked  as  an  exhibit 
or  identified  by  the  trial  judge  or  the  stenog- 
rapher or  anyone  else,  will  not  be  treated  as 
part  of  the  bill  of  exceptions.  Lake  Erie  & 
W.  R.  Co.  V.  Mackey,  53  Ohio  St.  370,  41  N. 
E.  980,  29:  757 

g.  Stenographer's  Notes. 

See  also  supra,  175. 

181.  Filing  the  stenographer's  notes  of  the 
judge's  charge,  and  printing  it  in  the  paper 
book,  will  not  make  it  a  part  of  the  record 
unless  it  affirmatively  appears  that  the  fil- 
ing was  the  act  of  the  judge  himself,  or  was 
done  by  his  express  direction  evidenced  by 
his  signature,  either  to  the  charge  itself  or 
to  the  bill  of  exceptions.  Smith  v.  Times 
Pub.  Co.  178  Pa.  481,  30  Atl.  296,       35:  819 

182.  The  remedy  for  refusal  by  the  trial 
court  to  furnish  a  transcript  of  the  stenog- 
rapher's notes  to  a  person  convicted  of  crime 
is  an  application  to  the  supreme  court  for  an 
order  requiring  it  to  do  so.  Miller  v.  State, 
149  Ind.  607,  49  N.  E.  894.  40:  109 

h.  Instructions. 

See  also  supra,  181. 

183.  An  unnecessary  recital  by  the  clerk, 
of  a  charge  to  the  grand  jury,  does  not  make 
it  a  part  of  the  record.  Hobbs  v.  State,  133 
Ind.  404,  32  N.  E.  1019,  18:  774 

184.  The  supreme  court  has  no  authority 
to  heed  instructions  requested  by  the  par- 
ties, spread  upon  the  minutes  of  the  court, 
and  copied  into  the  transcript  by  the  clerk 
of  his  own  motion  without  authority.  Lake 
Erie  &  W.  R.  Co.  v.  Holland,  162  Ind.  406, 
69  N.  E.  138,  63:  948 

185.  On  an  appeal  involving  the  right  of  a 
commissioner  appointed  to  take  testimony 
by  the  Commissioners  of  Alabama  Claims  to 
make  a  special  contract  as  to  fees,  instruc- 
tions issued  by  the  Court  of  Commissioners 
cannot  be  received  when  not  put  in  evidence 
on  the  trial.  Powers  v.  Manning,  154  Mass. 
370,  28  N.  E.  290,  13:  258 
Necessity  of  bringing  up. 

186.  Failure  to  set  out  instructions  to 
which  objection  is  made,  as  required  by 
rule  of  court,  will  waive  the  objection.  Gar- 
ngue  V.  Keller,  164  ind.  676,  74  N.  E.  523, 

69:  870 

187.  Objection  to  the  giving  or  refusing 
of  instructions  found  in  the  record  cannot 
be  considered  by  the  supreme  court,  wjiere 


66 


APPEAL  AND  EIl'O-^,  IV.  i— k. 


the  record  affirmatively  shows  that  all  the 
instructions  given  are  not  in  it.  Lake  Lrie 
&  W.  R.  Co.  V.  Holland,  162  Ind.  406,  63  N. 
E.   138,  63:  948 

i.  Findings. 

See  also  supra,  163;  infra,  357. 

188.  A  case  will  not  be  remanded  for  a 
more  specific  finding  where  the  facts  neces- 
sary are  stated  in  effect  and  have  been  as- 
sumed by  both  parties,  and  the  case  heard 
on  its  merits  without  objection.  Bene<lict  v. 
Chase,  58  Conn.  196,  20  Atl.  448,  8:  120 

189.  FindiniTs  that  a  judgment  was  con- 
fessed in  contemplation  of  an  assignment 
for  creditors  and  in  fraud  of  the  statute 
governing  such  assignments,  thousrh  classi- 
fied among  conclusions  of  law,  will  be  given 
the  same  effect  to  uphold  the  judgment  as 
if  they  were  designated  as  findings  of  fact. 
Bero-er  v.  Varrelmann,  127  N,  Y.  281,  27  N. 
E.  1065,  12:  308 

190.  A  formal  finding  iij  a  partition  suit, 
that  plaintiff  and  defendant  were  tenants  in 
common,  does  not  show  that  the  defense  of 
adverse  possession  was  not  found  to  be  in- 
volved, where  the  court  expressly  found  at 
defendant's  request  that  they  had  held  ad- 
versely for  a  certain  period,  which  was  not 
long  enouorh  to  raise  the  presumption  of  a 
grant.  Weston  v.  Stoddard,  137  N.  Y.  119, 
33  N.  E.  6-2,  20:  624 

191.  A  finding  that  a  son  to  whom  a  bill 
of  sale  was  made  by  his  father  shortly  be- 
fore a  general  assignment  had  knowledge  of 
the  father's  intent  to  hinder  and  defraud 
creditors,  and  also  that  he  consnired  with 
him  to  prefer  creditors  in  violation  of  the 
statute,  cannot  be  construed  as  a  finding  of 
fraud  as  to  creditors  irrespective  of  the 
statute  as  to  preferences,  where  the  case 
was  decided  on  the  theory  that  the  bill  of 
sale  must  be  construed  with  the  assignment. 
Manning  v.  Beck,  129  N.  Y.  1,  29  N.  E.  90, 

14:  198 

192.  Findings  by  the  trial  court  cannot  be 
looked  to  by  the  appellate  court  to  ascer- 
tain the  facts  in  a  suit  for  maintenance  by 
a  deserted  wife,  where  there  was  no  neces- 
sity for  findings,  and  under  the  statute 
such  findings,  if  made,  do  not  constitute 
part  of  the  judement  roll.  Murray  v.  Mur- 
ray, 115  Cai.  266,  47  Pac.  37,  37:626 
Necessity  of. 

See  also   infra,  356. 

193.  A  special  question  withdrawn  from 
the  jury  by  consent  of  both  parties  before 
the  general  verdict  was  rendered  cannot  be 
considered  on  appeal  as  part  of  the  findings 
and  verdict,  even  if  the  word  '"Yes"  is  writ- 
ten un^er  it.  Read  v.  Nichols,  118  N.  Y.  224. 
23  N.  E.  468,  7:  130 

194.  The  omission  of  a  finding  is  immate- 
rial where  other  findings  necessarily  control 
the  judgment.  Southern  P.  R.  Co,  v.  Uu- 
four,  95  Cal.   615,  30  Pac.  783,  19:  92 

195.  Neglect  to  make  A  finding  not  re- 
quested cannot  be  objected  to  on  appeal, 
if  the  evidence  is  not  sufficient  to  require 
it  as  matter  of  law.  Wetzler  V.  Duffy,  78 
Wis.  170,  47  N.  W.  184,  12:  178 


Time  of  making. 

1C6.  The  special  finding  of  facts  provided 
for  by  Conn.  Pub.  Acts  is^l,  chap.  194,  §  6, 
is  not  for  the  purpose  of  spreading  those 
facts  upon  the  records  as  part  of  the  judg- 
ment, but  is  only  to  be  made  after  judgment 
has  been  rendered,  to  become  part  of  an  ap- 
peal, and  it  cannot  be  made  in  the  absence 
of  an  appeal  and  after  the  expiration  of  the 
time  for  taking  one.  Corbett  v.  Matz,  72 
Conn.  610,  45  Atl.  494,  48:  217 

197.  A  finding  of  facts  made  after  the 
end  of  the  term  at  which  judgment  was  ren- 
dered, when  the  court  had  no  power  to  mod- 
ify or  change  the  judgment,  and  after  the 
time  for  an  appeal  had  expired  without  an 
appeal  being  taken,  cannot  be  made  by  the 
court  a  part  of  the  judgment,  nor  of  the 
record  of  judgment,  nor  the  foundation  of  a 
writ  of  error  to  reverse  the  judgment,  al- 
though there  are  statutory  provisions  (such 
as  Conn.  Gen.  Stat.  §§  1107,  1111)  to  the  ef- 
fect that  any  party  is  entitled  to  have  a 
finding  of  the  facts  on  which  judgment  is 
founded  appear  on  the  record  and  become 
part  of  the  judgment.  Id. 

j.  Opinions. 
For  Editorial  Notes,  see  infra,  XL  §  7. 

198.  The  opinion  filed  in  a  case  is  in  no 
sense  a  proper  part  of  the  record  on  appeal 
to  the  supreme  court  of  Illinois  from  the 
judgment  of  an  appellate  court.  Pennsyl- 
vania Co.  V.  Versten,  140  111.  637,  30  N.  E. 
540,  15:  798 

199.  A  written  opinion  filed  by  the  trial 
court  on  a  trial  without  a  jury  is  not  an  es- 
sential part  of  the  record  on  appeal,  and 
where  general  findings  are  made  by  the 
court  and  a  judgment  pronounced  thereon, 
the  appellate  court  will  conclusively  pre- 
sume that  the  trial  court  considered  all  the 
competent  evidence  before  it  and  decided  all 
the  material  and  necessary  issues  presented 
by  the  pleading,  although  the  ooinion  shows 
the  contrary.  Phenix  Ins.  Co.  v.  Fuller,  53 
Neb.  811,  74  N.  W.  269,  40:  408 

k.  Motions  and  Orders. 
See  also  supra,  164,  171;  infra,  250,  251. 

200.  A  general  order  of  which  the  trial 
court  is  bound  to  take  judicial  notice  must 
be  treated  on  appeal  as  if  in  the  record. 
Jones  V.  Merchants'  Nat.  Bank,  22  C.  C.  A. 
483,  33  U.  S.  App.  703,  76  Fed.  683,     35:  698 

201.  A  motion  to  modify  the  decree  can- 
not be  considered  on  appeal,  where  it  was 
not  made  a  part  of  the  record.  Muncie 
Natural  Gas.  Co.  v.  Muncie,  160  Ind.  97,  66 
N.  E.  436,  60:  822 

202.  In  case  of  appeal  from  a  judgment 
the  record  need  not  contain  the  notice  of  in- 
tention to  move  for  a  new  trial.  Fordhara 
V.  Northern  P.  R.  Co.  30  Mont.  421,  76  Pac. 
1040,  66:  556 

203.  Matters  as  to  the  selection  of  jurors 
annot  be  brought  into  the  record  by  copy- 
ing them  into  the  motion   for  a  new  trial. 
Pownsend  v.  State,  147  Ind.  624,  47  N.  K 
19,  37:  294 


APPEAL  AND  ERROR,  IV.  1— o,  1. 


67 


How  brought  tip. 

204.  A  statement  by  the  clerk  in  the 
transcript,  that  motiions  were  filed  for  judg- 
ment on  the  pleadinjrs,  is  not  sufficient  to 
bring  tne  motions  before  the  appellate  court 
for  consideration,  if  they  do  not  appear  in 
the  transcript  and  were  not  made  part  of 
the  record.  Sternberg  v.  Levy,  159  Mo.  617, 
60  S.  W.  1114,  53:  438 

205.  An  order  will  be  treated  as  a  part  of 
the  record  and  legitimately  before  the  court 
for  examination  on  the  rehearing  of  an  ap- 
peal, if  the  case  was  submitted  by  both  par- 
ties at  the  first  hearing,  upon  tlie  theory 
that  the  order  was  properly  in  the  record. 
Republic  L.  Ins.  Co.  v.  Swigert,  135  111.  150, 
25  N.  E.  680,  12:  328 

206.  A  motion  for  judgment  on  the  plead- 
ings is  not  part  of  the  record,  and  can  only 
be  made  part  of  the  record,  so  as  to  be 
considered  on  appeal,  by  a  bill  of  excep- 
tions. Sternberg  v.  Levy,  153  Mo.  617,  60 
S.  W.  1114,  53:438 

207.  A  petition  for  a  transfer  of  a  cause 
to  another  judge  because  of  the  disqualifi- 
cation of  the  judge  before  whom  it  is 
brought,  and  an  order  denying  the  petition, 
constitute  part  of  the  judgment  roll  under 
S.  D.  Comp.  Laws,  §  5013,  as  they  are  in- 
cluded in  "all  orders  or  papers  in  any  way 
involving  the  merits  and  necessarily  af- 
fecting the  judgment,"  and  they  are  there- 
fore properly  before  the  court  for  review  on 
appeal,  without  any  bill  of  exceptions. 
First  Nat.  Bank  v.  McGuire,  12  sT  D.  226, 
80  N.  W.  1074,  47:  413 

1.  Certificates. 

See  also  supra,  73,  163,  175;  infra,  230,  831. 

208.  A  certificate  to  a  bill  of  exceptions 
regularly  signed  by  the  judge  need  not 
state  what  it  contains,  except  whether  it 
contains  all  the  evidence.  Muetze  v.  Tu- 
teur,  77  Wis.  236,  46  N.  W.  123,  9:  86 

209.  A  certificate  that  a  charge  of  fraud  is 
not  true  in  fact  is  sufficient  as  certifying  an 
ultimate  fact,  and  not  evidentiary  facts. 
Hayes  v.  Massachusetts  Mut.  L.  Ins.  Co. 
125  111.  626,  18  N.  E.  322,  1:  303 

m.  Abstracts. 

See  also  infra,  442. 

210.  Appellee's  additional  abstract  and  ar- 
gument will  not  be  stricken  from  the  rec- 
ord, with  costs  of  printing  the  same,  be- 
cause not  served  within  the  time  required 
by  the  rules,  where  the  final  submission  of 
the  cause  was  not  retarded  thereby.  Doo- 
little  V.  Doolittle,  78  Iowa,  691,  43  N,  W. 
616,  6:  187 

211.  A  supplemental  abstract  filed  by  ap- 
pellee merely  to  correct  his  abstract  in  re- 
spects in  which  the  appellant  claims  it  is 
deficient  will  not  be  stricken  from  the  files 
on  appellant's  motion  on  the  cround  that  it 
is  not  filed  in  time,  as  its  filing  does  not 
prejudice  appellant  in  any  manner.  Rich- 
ards T.  Knight,  78  Iowa,  69,  42  N.  W.  584, 

4:453 


212.  Appellee's  additional  abstract  is  not 
to  be  taken  as  admitted,  although  not  de- 
nied in  terms,  where  the  aopellant  has  filed 
a  certified  transcript  of  the  record,  and  a 
statement  that  he  has  done  so  because  the 
correctness  of  his  abstract  has  been  so  per- 
sistently denied,  and  has  attached  an  index 
of  the*  transcript  and  abstract,  for  the  pur- 
pose of  aiding  in  the  verification  of  the 
abstract  by  the  transcript.  Joy  v.  Bitzer, 
77  Iowa,  73,  41  N.  W.  575,  3:  184 

n.  Case  Made;  Statements. 

See  also  supra,  169. 

213.  The  filing,  with  the  clerk  of  the 
court,  of  an  order  by  the  judge  for  an  ex- 
tension of  time  for  serving  a  case  made  un- 
der Kan.  Laws  1903,  chap.  380,  p.  583,  §  1, 
satisfies  the  requirements  of  the  law  as  to 
notice,  such  filing  constituting  notice. 
Ciark  v.  Mitchell  County  Comrs.  69  Kan. 
542,  77  Pac.  284,  66:  965 

214.  That  there  is  evidence  in  the  record 
that  a  tenant  permitted  the  premises  to  be 
sold  for  taxes  in  violation  of  his  covenant 
through  mistake  does  not  require  a  reversal 
of  a  judgment  dismissing  his  bill  for  equita- 
ble relief  from  a  forfeiture  claimed  on  the 
ground,  where  there  is  no  statement  of 
facts  found,  or  of  rulings  made;  since  it  can- 
not be  held  to  have  been  error  to  refuse  to 
give  credence  to  such  evidence.  Gordon  v. 
Richardson,  185  Mass.  492,  70  N.  E.   1027, 

69:  867 

o.  Bill  of  Exceptions. 

1.  In  General. 

As  to  Exceptions  Generally,  see  infra,  V. 
See  also  supra,  165,  174,  206,  208;  infra,  250, 
351. 

215.  The  Louisiana  statute  authori'/in«r  ob- 
jection to  be  noted  in  lieu  of  a  bill  of  ex- 
ceptions does  not  supersede  the  rule  that  the 
particular  grounds  of  objections,  and  the  ma- 
teriality of  the  action  complained  of,  and 
the  reasons  of  the  judge  for  his  rulings, 
must  be  stated.  Warner  v.  Clark,  45  La. 
Ann.  863,  13  So.  203,  21 :  502 

216.  A  longhand  manuscript  of  alleged 
evidence  cannot  be  regarded  as  a  bill  of  ex- 
ceptions on  appeal.  Pittsburwh.  C.  C.  <^  St. 
L.  R.  Co.  V.  Reddine,  140  Ind.  101,  39  N.  E. 
921,  34:  767 
Necessity  for. 

217.  An  appeal  may  be  prosecuted  from  a 
decree  in  equity,  though  no  bill  of  exceptions 
was  settled  and  allowed.  National  Wall 
Paper  Co.  v.  Columbia  Nat.  Bank,  63  Neb. 
234,  88  N.  W.  481,  56:  121 

218.  A  bill  of  exceptions  is  not  necessary 
for  the  review  of  a  demurrer  to  evidence 
whi'-h  incorporates  the  evidence.  Mitchell  v. 
Nashville,  C.  &  St.  L.  R.  Co.  100  Tenn.  329, 
45  S.  W.  337,  40:  426 

219.  In  the  absence  of  a  bill  of  exceptions, 
the  findings  of  the  trial  court  on  a  question 
of  fact  will  not  be  reviewed.  Universitv  of 
IVIichiean  v.  McGuckin,  62  Neb.  489,  87  N. 
W.  180,  57:  917 


68 


APPEAL  AND  ERROR,  IV.  o,  2,  3. 


Amendments. 

On  Certiorari,  see  Certiorari,  37. 

See  al3o  supra,  77. 

220.  An  objection  that  a  bill  of  exceptions 
was  not  served  in  the  manner  provided  by 
law  is  waived  by  presenting  amendments 
thereto.  Fordhara  v.  Northern  P.  R.  Co. 
30  Mont.  421,  76  Pac.  1040,  66:  556 

221.  It  is  the  duty  of  a  commissioner  who 
has  been  appointed  by  the  supreme  judicial 
court  of  Massachusetts  to  report  upon  a  pe- 
tition to  establish  the  truth  of  allegations 
in  a  bill  of  exceptions  disavowed  by  the  su- 
perior court,  to  consider  the  statements  in 
the  certificate  disallowing  the  bill  wherein 
the  judge  points  out  the  amendments  which 
are  necessary  to  make  the  bill  conform  to 
the  truth.  Com.  v.  Joslin,  158  Mass.  482, 
33  N.  E.  C53,  21:  449 

2.  Sufficiency;    What   Should    be   Presented 

by. 

See  also  supra,  175;  infra,  275,  328,  372. 

222.  If  a  bill  of  exceptions,  though  bear- 
ing no  letter,  number,  or  other  mark  of 
identity,  do  of  itself,  by  its  own  matter  and 
character,  identify  itself  as  the  bill  men- 
tioned in  the  order  of  court  or  of  the  judge 
certifying  its  execution,  the  bill  is  part  of 
the  record.  Bank  of  Ravenswood  v.  Wetzel, 
(W.  Va.)  50  S.  E.  886,  70:  305 

223.  Facts  not  appearing  in  the  bill  of 
exceptions  will  be  treated  by  the  reviewing 
court  as  nonexistent.  Freeman  v.  Dodge,  98 
Me.  531,  57  Atl.  884,  66:  395 

224.  A  verdict  may  be  supported  on  any 
ground  which  the  evidence  in  the  bill  of  ex- 
ceptions permits,  when  the  bill  shows  that 
it  contains  all  the  evidence  material  to  the 
exceptions  in  the  case.  Whitney  v.  New 
York.  N.  H.  &  H.  R.  Co.  43  C.  C.  A.  19,  102 
Fed.  850,  50:  615 

225.  No  question  as  to  the  sufficiency  of 
the  notice  given  to  the  trial  court  of  ap- 
pellant's intention  to  reserve  and  present 
specified  questions  under  Ind.  Rev.  Stat. 
1894,  §  642,  arises,  where  such  court  has, 
pursuant  to  the  notice,  fully  and  correctly 
prepared  a  special  bill  of  exceptions  so  as 
to  present  briefly  and  distinctly  each  of  such 
questions.  Loesch  v.  Koehler,  144  Ind.  278, 
41  N.  E.  326.  43  N.  E.  129.  35:  68.i 

226.  A  bill  of  exceptions  embodying  the 
charge,  and,  immediately  following  it.  stat- 
ing that  one  of  the  counsel  said,  "The  de- 
fendant excepts,"  with  tlio  groimd  of  ex- 
ception, including  a  refusal  to  charge  as 
requested  and  exceptions  to  the  charge  as 
delivered, — sufficiently  shows  that  excep- 
tions to  the  charge  were  seasonablv  taken. 
Findlay  v.  Pertz,  13  C.  C.  A.  559,  31  U.  S. 
.\pp.  .j40.  66  Fed.  427.  29:  188 
What  should  be  presented  by. 

For  Editorial  Notes,  see  infra.  XI.  §  10. 

227.  An  appellate  court  can  take  notice  of 
papers  which  arc  not  part  of  the  judgment 
roll  only  when  they  have  been  preserved  and 
properly  identified  in  the  bill  of  exceptions. 
Slauson  v.  Goodrich  Transp.  Co.  99  Wis.  20, 
74  N.  W.  574,  40:  825 


228.  Questions  arising  on  motion  t«  strike 
averments  from  the  complaint  can  be  con- 
sidered on  appeal  only  when  properly  pre- 
sented by  bill  of  exceptions.  Western  U. 
Teleg.  Co.  v.  Crocker,  135  Ala.  492,  33  So. 
45,  59:398 

229.  A  transcript  of  judicial  proceedings, 
which  is  not  made  a  part  of  the  bill  of  ex- 
ceptions, cannot  be  considered  on  appeal,  al- 
though an  offer  of  it  in  evidence  is  recited. 
Shoemaker  v.  South  Bend  Spark  Arrester 
Co.  135  Ind.  471,  35  N.  E.  280,  23:  332 

230.  An  objection  to  evidence  is  not  avail- 
able on  appeal  unless  saved  by  bill  of  ex- 
ceptions, although  noted  on  certificate  of 
evidence.  Poling  v.  Ohio  River  R.  Co.  38  W. 
Va.  645,  18  S.  E.  782,  24:  215 

231.  The  evidence  will  not  be  examined 
on  appeal  to  ascertain  whether  it  was  suffi- 
cient to  support  the  uecision,  w^hen  it  is  not 
all  contained  in  the  bill  of  exceptions. 
Greene  v.  Greene,  49  Neb.  546,  68  N,  W.  947, 

34:  110 

232.  An  objection  to  a  bill  of  exceptions 
on  the  ground  that  part  of  the  evidence  is 
omitted  therefrom  is  untenable,  where  the 
evidence  referred  to  consists  of  ponderous 
articles  which  do  not  admit  of  physical  at- 
tachment to  the  record,  and  these  are  all 
referred  to  in  the  written  portion  of  the  bill 
of  exceptions,  and  articles  answering  to 
such  reference  were  filed  with  the  record  in 
the  case  and  produced  at  the  hearing  on 
appeal,  bearing  the  marks  of  identification 
of  the  official  reporter  of  the  trial  court. 
O'Neill  v.  Chicago,  R.  I.  &  P.  R.  Co.  66 
Ne>^.  638,  92  N.  W.  731.  60:  443 

233.  A  bill  of  exceptions  is  not  defective 
in  failing  to  copy  a  mortgage  as  a  part  of  the 
evidence,  where,  after  stating  that  it  was 
read  in  evidence,  it  refers  to  a  previous  page 
of  the  transcript  where  it  is  copied  as  an 
exhibit  filed  with  the  answer.  Binkley  v. 
Forkner,  117  Ind.  176,  19  N.  E.  753,       3:  33 

3.  Signing;  Settling;  Practice. 

See  also  supra,  172. 

234.  Bills  of  exception  in  criminal  trials 
should  be  signed  by  the  trial  judge;  and  a 
mere  note  of  a  reservation  of  exceptions,  or 
a  bill  signed  by  the  clerk  only,  is  insuffi- 
cient. State  V.  Haines,  51  La.  Ann.  731,  25 
So.  372,  44:  837 

235.  The  filing  of  a  bill  of  exceptions  aft- 
er it  receives  the  signature  of  the  judge  is 
necessary  to  make  it  part  of  the  record. 
Drew  v.  Geneva,  150  Ind.  662,  50  N.  E.  871, 

42:  814 

236.  When  a  judge  in  vacation  makes  an 
order  under  W.  Va.  Code  1899,  chap.  131,  §  9, 
showing  that  he  has  executed  a  bill  of  excep- 
tions, and  so  certifies  it  to  the  clerk,  the 
clerk  must  record  the  order  in  the  law-or 
der  book,  and  attest  it;  but  it  is  not  neces- 
sary that  the  bill,  or  any  part  of  it,  be  lit- 
erally recorded  in  said  book.  Bank  of  Ra- 
venswood V.  Wetzel  (W.  Va.)  50  S.  E.  886, 

70:  305 

237.  The  statement  of  facts  in  a  bill  of 
exceptions    is    conclusive    in    an    appellate 


APPEAL  AND  ERROR,  IV.  o,  4— p.  2. 


69 


eovrt,  naless  it  is  excepted  to  and  the  ex- 
ceptions are  recorded  in  the  bill  when  it  is 
settled.  Purple  v.  Union  P.  R.  Co.  51  C.  C. 
A.  564,  114  Fed.  123,  57:  700 

238.  The  successor  of  a  trial  judge  who 
presided  in  a  case,  overruled  a  motion  for  a 
new  trial,  and  granted  time  in  wliich  to  pre- 
sent a  bill  of  exceptions,  may,  on  the  lat- 
ter's  death  before  presenting  the  bill,  make 
the  order  for  its  allowance  in  open  court, 
where  the  statute  provides  that  it  shall  be 
allowed  by  the  court  if  presented  in  open 
court,  but  specifies  that  it  shall  be  done  by 
the  judge  of  the  court  before  '^hom  the 
cause  was  tried  if  presented  in  vacation. 
Conway  v.  Smith  Mercantile  Co.  6  Wyo.  327, 
44  Pac  940,  49:  201 

4.  Time  for. 

239.  Forty  days  after  the  expiration  of 
the  trial  term  may  he  allowed  by  the  court 
at  such  term  for  filing  a  bill  of  exceptions. 
Finalay  v.  Pertz,  13  C.  C.  A.  559,  31  U.  S. 
App.  340,  66  Fed.  427,  29:  188 

240.  The  rule  that  a  bill  of  exceptions 
must  be  signed  before  the  jury  leaves  the 
box  if  a  party  requires  it,  which  was  found- 
ed on  Md.  act  1834,  chap.  233,  §  11,  is  not 
in  force  under  the  Maryland  Code,  which 
does  not  contain  that  statute;  but  while  an 
exception  must  be  noted  at  the  time  of  the 
ruling,  reduction  of  the  exceptions  to  form 
may  be  deferred  until  after  the  trial,  if  it 
is  done  during  the  term.  State  use  of 
James  t.  Kent  County  Comrs.  83  Md.  377. 
35Atl.  62,  33:291 

241.  Exceptions  taken  during  the  trial  to 
the  rulings  of  the  trial  court  may  be  set- 
tled and  saved  in  accordance  with  Id.  Rev. 
Stat.  §  4426,  or  they  may  be  settled  after 
the  trial,  in  accordance  with  §  4430,  or  in 
the  statement  on  motion  for  a  new  trial, 
and  when  so  settled  and  saved  will  be  re- 
viewed by  the  supreme  court  on  appeal. 
Rumpel  V.  Oregon  S.  L.  &  U.  N.  R.  Co. 
4  Id.  13.  35  Pac.  700,  22:  725 

242.  Exceptions  to  the  appointment  of  a 
trustee,  instead  of  an  administrator  ad 
litem,  not  saved  by  a  term  bill  of  exceptions 
cannot  be  saved  by  a  final  bill  of  exceptions, 
signed  at  a  term  subsequent  to  that  at 
which  the  ruling  occurred.  United  States 
Casualty  Co.  v.  Kacer,  169  Mo.  301,  69  b. 
W.  370,  58:  430 
Computation  of. 

See   also- infra,  245. 

243.  The  time  for  caking  a  bill  of  excep- 
tions based  on  an  exception  in  respect  to  a 
charge  to  the  jury,  which  is  afterwards  em- 
bodied in  a  motion  for  a  new  trial,  which  is 
overruled,  is  to  be  computed  from  the  de- 
nial of  that  motion.  Cincinnati  Street  R. 
Co.  V.  Wright,  54  Ohio  St.  iSl,  43  N.  E.  688, 

32:  340 

244.  An  order  giving  a  party  "until"  a  cer- 
•tain  day  to  prepare  and  present  a  bill  ©f 
exceptions  includes  the  day  named,  under  a 
statutory  rule  that  the  last  day  mentioned 
shall  be  included  in  the  time  within  w^ich 
an  act  is  to  be  done  when  required  by  law. 
Conway  v.  Smith  Mercantile  Co.  6  Wyo.  327, 
44  Pac  940,  49:  201 


Excluding  Sundays. 

245.  Sundays  cannot  be  excluded  in  com- 
puting the  time  for  signing  of  bills  of  ex- 
ception under  Md.  Code  Pub.  Loc.  Laws,  art. 
4,  §  170,  allowing  it  to  be  done  "at  any  "time 
within  thirty  days"  after  verdict  or  finding 
of  fact.  American  Tobacco  Co.  v.  Strick- 
ling,  88  Md.  500,  41  Atl.  1083,  69:  909 

p.  Assignments  of  Error. 
1.  Necessity  of. 

See  also  infra,  349,  352,  371. 

246.  Action  of  the  appellate  court  not  as- 
signed as  error  is  not  subject  to  review  in 
the  supreme  court.  Peterson  v.  Gibson,  191 
[11.  365,01  N.  E.  127,  54:  836 

247.  In  actions  at  law  the  consideration  of 
the  appellate  court  will  be  confined  to  the 
errors  assigned  and  argued  by  the  plaintiff 
in  error.  Dell  v.  Marvin,  41  Fla.  221,  26  So. 
188,  45:  201 

248.  The  illegality  of  a  contract  which  is 
declared  void  by  statute  may  be  declnred  by 
the  court  on  appeal  without  any  assignment 
of  error  to  the  point,  when  it  appears  on  the 
face  of  the  record.  Fuoua  v.  Pabst  Brewing 
Co.  90  Tex.  298,  38  S.  W.  29,  750,       35:  241 

249.  Evidence  received  under  objection 
cannot  be  disregarded  by  the  court  on  ap- 
peal, if  no  assignment  of  error  is  predicated 
upon  the  rulings  which  resulted  in  its  admis- 
sion. Smith  V.  ^tna  L.  Ins.  Co.  115  Iowa, 
217,  88  N.  W.  368,  56:  271 

250.  Defects  in  a  motion  for  a  new  trial, 
caused  by  the  failure  to  properly  assign 
srror  upon  the  rulings  of  which  complaint 
is  made,  cannot  be  cured  by  setting  out  m 
the  bill  of  exceptions  the  various  grounds  of 
the  motion,  and  specifically  assigning  error 
upon  the  overruling  of  each  ground.  Phoe- 
nix Ins.  Co.  V.  Schwartz,  115  Ga.  112.  41  S. 
E.  240,  57:  752 

250a.  On  appeal  from  an  order  overruling 
a  motion  for  new  trial,  appellant  is  entitled 
to  have  the  assignment  and  specification  of 
errors  contained  in  his  statement  used  on 
the  hearing  of  such  motion  examined  and 
considered  by  the  appellate  court,  although 
such  order  was  not  assigned  as  error  on  ap- 
peal, since  Id.  Rev.  Stat.  1887,  §  4427,  allows 
an  aggrieved  party  an  exception,  as  a  matter 
of  law,  to  an  order  denying  his  motion  for  a 
new  trial.  Whitney  v.  Dewey,  10  Idaho,  633, 
80  Pac.  1117,  69:  51Z 

2.  Sufficiency;  Definiteness. 

Upon  Petition  for  Certiorari,  see  Certiorari, 
36. 

251.  A  general  and  vague  assignment  of 
an  error  will  not  be  considered  by  the  su- 
preme court  of  South  Dakota.  A  party 
complaining  of  error  must  specify  it  with 
precision.  It  should  be  specific  and  explicit, 
so  that  by  looking  at  the  grounds  stated 
the  court  can  at  on"e  see  how.  when,  and 
where  the  error  arises,  and  whether  it  is 
well  or  ill  taken.  State  v.  Chapman,  1  S.  D. 
414,  47  N.  W.  411,  .    10:  432 


70 


APPEAL  AND  ERKOR,  IV.  p.  8,  q. 


252.  The  requirement  of  a  distinct  state- 
ment of  errors  complained  of  is  not  met  oy 
four  or  five  pages  of  claims  consi3ting  most- 
ly of  argumentative  comments  .  a  to  errors 
in  the  charge  of  the  court.  State  v.  Lee, 
65  Conn.  2G5,  30  Atl.   1110,  27:49b 

253.  Error  cannot  be  predicated  upon  an 
assignment  the  substance  of  which  is  wholly 
immaterial.  Western  U.  Teieg.  C!o.  v.  Col- 
lins, 45  Kan.  88,  25  Pac.  187,  10:  515 

254.  Only  one  point  or  subject  should  be 
embraced  in  an  assignment  of  error.  Kellv 
V.  Bennett,  132  Pa.  218,  19  Atl.  69,       7:  120 

255.  An  assignment  of  error  embracing 
three  distinct  propositions,  without  particu- 
larly specifying  the  error  complained  of,  is 
insufficient.  Union  C.  L.  Ins.  Co.  v.  Chown- 
ing,  86  Tex.  654,  26  o.  W.  982,  24:  504 

25G.  Judicial  inquiry  on  a  general  appeal 
from  a  judgment  in  an  equitable  action  to 
sell  pirt  of  a  trust  estate,  presenting  the 
question  whether  the  judgment  is  proper  on 
the  undisputed  facts,  is  not  by  any  means 
circumscribed  by  the  assignment  of  errors. 
Ruggles  V.  Tyson,  104  Wis.  500,  79  N.  W. 
766.  81  N.  W.  367,  48:  809 

257.  A  statement  in  appellant's  brief,  that 
the  court  held  a  mortgage  prior  to  a  judg- 
ment, sufficiently  points  out  the  alleged  er- 
ror where  that  is  the  only  ouestion  present- 
ed. Goetzinger  v.  Rosenfeld,  16  Wash.  392, 
47  Pac.  882,  38:  257 

258.  The  failure  of  an  assignment  of  er- 
rors to  portions  of  a  decree  in  favor  of  cred- 
itors, to  name  them  or  allege  errors  sepa- 
rately in  respect  to  each  of  them,  is  not 
material  if  there  is  no  difference  in  liability 
as  to  the  different  creditors.  Andrews  v. 
National  Foundry  &  P.  Works.  22  C.  (J.  A. 
110.  46  U.  S.  App.  281,  76  Fed.  166,  36:  139 
As  to  exclusion  of  evidence. 

259.  An  assignment  of  error  upon  the  re- 
fusal of  the  court  to  allow  a  witness  to  an- 
swer a  specified  question  propounded  by  the 
party  calling  him  is  not  properly  made  un- 
less it  .states  what  evidence  was  thus  sought 
to  be  elicited,  and  that  the  court  was  in- 
formed thereof  at  the  time  of  the  ruling. 
Bisby  V.  Warpock,  115  Ga.  385,  41  S.  E. 
622,  57:  754 

260.  An  assignment  of  error  to  the  ex- 
clusion of  the  evidence  of  a  certain  witness, 
some  of  which  was  properh-  excluded,  is 
sufTiciont.  in  the  Tennessee  court  of  chan- 
cery appeals,  to  reach  the  incorrect  part  of 
the  ruling  of  the  court.  Rovston  v.  McCul- 
ley   (Tenn.  Ch.)    59  S.   W.   725,  52:  899 

261.  An  assignment  of  error  in  sustaining 
an  objection  to  testimony  offered  to  prove  a 
certain  material  fact  need  not  name  the 
witnesses  or  state  what  questions  were 
asked  them.  Union  Bldg.  Asso.  v.  Rockford 
Ins.  Co.  83  Iowa.  647,  49  N.  W.  1032,  14:  248 
Sufficiency  of  evidence. 

2ti2.  The  sufficiency  of  the  evidence  to 
support  a  verdict  cannot  be  considered  on 
an  assignment  of  error  for  refusal  of  a  non- 
suit. Dierstein  v.  Schubkagel,  131  Pa.  4G,  18 
Atl.  1059,  6:  481 

2f)3.  An  assignment  of  error  that  there  is 
no  credible  proof  to  sustain  a  verdict  is  bad 
in  form,  because  it  is  the  exclusive  province 


of  the  jury  to  pass  upon  the  credibility  of 
witnesses.  Brown  v.  Odill,  104  Tenn.  250, 
56  S.  W.  840,  52:  660 

Pleading. 

264.  An  objection  that,  defendant  was  not 
given  time  to  demur  to  an  amended  com- 
plaint after  the  allowance  of  the  amendment 
is  not  available  on  appeal,  if  it  is  not  fairly 
included  in  the  assignments  of  error,  and  it 
nowhere  appears  that  an  offer  to  demur  was 
made,  or  the  right  to  do  so  questioned  or 
denied.  Ritchie  v.  Waller,  63  Conn,  155,  28 
Atl.  29,  27:  161 
Instructions. 

265.  The  supreme  court  will  not  consider 
a  general  assignment  of  error  in  the  over- 
ruling of  a  large  number  of  requests  for 
instructions  to  the  jury  which  are  widely 
different  in  character.  Farrell  v.  Eastern 
Machinery  Co.   77   Conn.   484,   59  Atl.  611, 

68:  239 

266.  An  assignment  of  error  which  merely 
alleges  that  instructions  between  certain 
lines  are  erroneous  is  insufficient.  Sim- 
monds  v.  Holmes,  61  Conn.   1,  23  Atl.  702, 

15:  253 

267.  An  assignment  that  the  court  erred 
"in  charging  the  jury  as  certified  to  in  the 
printed  record,"  without  pointing  out  the 
error  complained  of,  raises  no  question  which 
the  appellate  court  is  bound  to  review. 
Chase  v.  Waterbury  Sav.  Bank,  77  Conn. 
295,  59  Atl.  37,  69:  329 
New  Trial. 

268.  An  assignment  of  ^  error  that  the 
court  erred  in  refusing  a  rfiotion  for  a  new 
trial  is  too  general.  Selover  v.  Bryant,  54 
Minn.  434,  56  N.  W.  58,  21:  418 

3.  Cross  Errors. 
See  also  infra,  390. 

269.  An  assignment  of  cross  errors  is  es- 
sential to  the  review,  on  an  appeal  by  plain- 
tiff, of  the  decision  upon  a  motion  by  de- 
fendants to  suppress  a  deposition.  Long  v. 
Hess,  154  111.  482,  40  N.  E.  335,  27:  791 

q.  Waiver  of  Assignments  of  Error. 

270.  An  error  assigned  on  appeal  is  waived 
by  failure  of  appellant's  counsel  to  discuss 
the  same  in  their  brief.    Johnson  v.  Schloss- 

^r,  146  Ind.  509,  45  N.  E.  702,  36:  5rf 

271.  Assignments  of  error  not  specifically 
called  to  the  attention  of  the  court  by  brief 
or  argument  will  be  deemed  waived,  al- 
though a  party  in  fiis  brief  states  generally 
that  he  does  not  desire  to  waive  any  assign- 
ment. Bishop  v.  Middleton,  43  Neb.  10,  61 
N.  W.  129,  26:  445 

272.  An  assignment  of  error  as  to  the  ad- 
mission of  evidence,  wl.ich  is  not  argued  be- 
fore the  court,  will  not  be  considered  in  the 
opinion.  ii.sterbrook  v.  Riley,  81  Iowa,  479, 
46  N.  W.   1072,  10:  33 

273.  An  assignment  of  error  to  the  denial 
of  a  petition  for  the  removal  of  a  cause  to 
a  Federal  court  w'll  not  be  considered  wuen 
no  argument  is  made  on  it.  Calhoun  Gold 
Min.  Co.  V.  Ajax  Gold  Min.  Co.  27  Colo.  1, 
59  Pac.   607,  60:  209 


APPEAL  AND  ERROR,  IV.  r;  V.  a,  1. 


71 


274.  An  assignment  of  error  submitted 
"without  argument"  may  be  treated  as 
abandoned.  Jacksonville,  T.  &  K.  W.  R.  Co. 
V.  Peninsular  Land,  T.  &  Mfg.  Co.  27  Fla.  1, 
157,  2  So.  661.  9  So.   689,  17:  o3, 

275.  "Earnestly  insisting"  on  assignments 
of  error  will  not  prevent  the  court  from  con- 
sidering them  as  abandoned,  in  the  ab- 
sence of  any  further  notice  of  them  than  a 
statement  in  a  brief  that  "questions  to  wit- 
nesses, as  appearing  by  95  assignments," 
were  leading  and  sought  to  elicit  irrelevant 
testimony,  where  such  questions  are  scat- 
tered through  a  bill  of  exceptions  of  479 
pages.  Id. 

27G.  A  claim  for  the  refunding  to  a  ship- 
per of  an  overcharge,  made  in  a  petition  to 
railroad  commissioners  for  the  enforcement 
of  their  order  as  to  rates,  is  waived  on  ap- 
peal if  not  asked  in  the  appellate  court. 
Campbell  v.  Chicago,  M.  &  St.  P.  R.  Co. 
86  Iowa,  587,  63  N.  W.  351,  17:  443 

r.  Briefs. 

Allowing   Expense    of   Printing,    see    infra, 

1228,  1289. 
See  also  supra,  257,  270-275;  infra,  370,  375, 

587,  1248. 

277.  Under  rules  requiring  but  one  brief 
on  each  side,  and  permitting  a  reply  in  ad- 
dition, although  separate  briefs  may  be  per- 
missible where  there  are  several  counsel  on 
the  same  side,  the  anowance  for  printing 
will  extend  only  to  what  is  reasonably  nec- 
essary. Cook  v.  Minneapolis,  St.  P.  &  S. 
Ste.  M.  R.  Co.  98  Wis.  624,  74  xi.  W.  561. 

40:  457 

278.  The  provision  of  the  Wisconsin  su- 
preme court  rule  9,  that  in  cases  depending 
on  the  evidence  the  brief  of  appellant  must 
contain  a  concise  statement  of  the  leading 
facts  or  conclusions  which  the  evidence  es- 
tablishes or  tends  to  prove,  does  not  mean 
a  recital  or  restatement  of  the  evidence,  but 
merely  that  such  facts  or  conclusions  should 
be  stated  with  a  reference  to  the  names  of 
the  witnesses  and  the  places  in  the  printed 
cases  where  the  evidence  which  establishes 
or  tends  to  prove  such  facts  or  conclusions 
may  be  found.  Milwaukee  Cold  Storage  Co. 
V.  Dexter,  99  Wis.  214,  74  N.  W.  976, 

40:  837 

279.  Where  a  motion  for  a  new  trial  has 
been  made,  and  the  statement  used  on  such 
motion  contains  an  assignment  and  specifica- 
tion of  errors,  and  an  appeal  is  taken  from 
the  order  denying  the  motion,  and  the  origi- 
nal brief  of  appellant  contains  no  enumera- 
tion of  errors  relied  on,  but  refers  to  the 
transcript  and  discusses  such  errors,  and 
prior  to  the  argument  in  the  appellate  court 
a  supplemental  brief  is  filed  by  appellant, 
making  a  specific  enumeration  of  sueh  er- 
rors, the  same  will  be  regarded  as  a  sub- 
stantial compliance  with  the  rules  of  court 
requiring  an  assignment  of  errors,  and  the 
case  will  be  examined  on  the  merits.  Whit- 
ney V.  Dewey,  10  Idaho,  633,  80  Pac.   1117, 

69:  572 

280.  A  statement  of  facts  in  appellant's 


brief,  which  is  conceded  to  be  correct,  will 
be  so  regarded  by  the  court;  and  an  addi- 
tional statement  in  appe. lee's  brief,  of  facts 
which  he  considers  necessary  to  a  full  under- 
standing of  the  questions  raised,  will  not  be 
considered  by  the  court,  under  a  rule  which 
provides  that  the  statement  shall  be  deemed 
accurate  unless  the  opp  site  party  points  (  ut 
wherein  it  is  insufficient  or  inaccurate/ 
Shinylemeyer  v.  Wright,  124  Mich.  230,  82  N. 
W.  887,  50:  129 


V.  Objections  and  Exceptions;  Raising  Ques- 
tions in  Lower  Court. 

a.  Definiteness;  SuflBciency. 

1.  In  General. 

As  to  Bill  of  Exceptions,  see  sunra,  IV.  o. 
Matters  as  to  Trial,  see  Trial,  I.  f. 
For  Editorial  Motes,  see  infra,  XL  §  10. 

281.  The  rendition  of  judgment  cannot  be 
questioned  on  appeal,  unless  the  defect  or 
mistake  in  it  is  particularly  pointed  out  by 
the  objection.  Tucker  v.  Hyatt,  151  Ind.  332, 
51  N.  E.  469,  44:  129 

282.  Parties  can  preserve  by  exceptions 
any  questions  of  law  for  decision  as  read- 
ily as  by  submitting  propositions  to  be 
held  as  law,  under  111.  Rev.  Stat.  1893,  chap, 
117,  §  1,  providing  that  referees  shall  have 
authority  to  take  testimony  ana  report  the 
same  in  writing  together  with  their  conclu- 
sions of  law  and  fact,  and  that  either  party 
may  except  to  sueh  report.  Chicago  Sani- 
tary Dist.  V.  Cook,  169  Iil.  184,  48  N.  E.  46i, 

33:   369 

283.  Exceptions  by  appellees  to  rulings  of 
the  trial  court  under  which  its  liability  for 
wrongful  death  was  established  cannot  be 
considered  by  the  appellate  court  upon  re- 
versal on  appeal  as  to  measure  of  damages, 
where  the  statute  requires  consideration  of 
appellee's  exceptions  only  where  the  ques- 
tions could  arise  on  a  new  trial.  Broughel 
v.  Southern  New  England  Teleph.  Co.  72 
Conn.  617,  45  Atl.  43o,  49:  404 
To  overruling  of  demurrer. 

284.  A  general  exception  to  the  overruling 
of  separate  demurrers  to  several  paragrapV.8 
of  complaint  presents  no  question  for  the 
court  on  appeal.  Southern  Indiana  R.  Co.  v. 
Harrell,  161  Ind.  689,  68  N.  E.  262,  63:  460 
To  argument  of  counsel. 

285.  A  mere  exception  to  the  language  of 
counsel  in  argument  to  the  jury,  not  preced- 
ed by  any  ruling  of  the  court,  is  insufficient 
to  raise  a  question  as  to  the  propriety  of 
the  language  used.  Kansas  City  v.  McDon- 
ald,   60  Kan.  481,  57  Pac.  123,  45:  429 

286.  An  attorney  who  has  persisted  in  his 
efforts  to  protect  his  client  against  im- 
proper statements  of  the  prosecuting  at- 
torney, until  the  court  has  held  that  he  is 
out  of  order,  is  not  obliged  to  run  the  risk  of 
punishment  for  contempt  by  continuing  to 
object,  but  his  objections  will«be  applied  to 
all  that  is  subsequently  said  by  the  district 
attorney.  People  v.  Fielding,  158  N.  Y.  542, 
53  N.  E.  497.  46:  641 


73 


APPEAL  AND  ERROR.  V.  a,  3. 


To  findings  or  conclusions  of  court. 

287.  A  general  exception  "to  these  findings 
of  fact  and.  conclusions  of  law,  and  to  each 
of  them,"  is  n.)t  sufficient  to  raise  any  ques- 
tion for  review  by  the  supreme  court  in 
Washington.  Moyer  -v.  Van  de  Vanter,  12 
Wash.  377,  41   Pac.  60,  29:  G70 

,  288.  Exceptions  to  the  conclusions  of  a 
surrogate  that  the  next  of  kin  of  an  intes- 
tate, who  was  not  made  a  party  to  the  ad- 
ministrator's accounting,  cannot  institute 
a  proceeding  for  a  new  accounting,  but  must 
come  in  under  the  former  decree,  present  a 
question  of  law  for  the  appellate  court.  Re 
Killan's  Estate,  172  N.  Y.  547,  65  N.  E.  561, 

63:  Ud 
To  direction  of  verdict. 
See  also  Trial,  64. 

288a.  The  action  of  the  trial  court  in 
directing  a  verdict  upon  one  count  in  a  com- 
plaint at  the  first  trial  of  a  cause,  and  re- 
fusing to  transfer  the  exception  to  such  ac- 
tion to  the  supreme  court,  as  to  which  no 
exception  is  filed,  cannot  be  considered  by 
the  latter  court  wlien  the  case  is  transferred 
to  it  upon  exceptions  to  the  direction  of  a 
verdict  upon  the  other  counts  at  a  subse- 
quent trial.  Spead  v.  Toralinson,  73  N.  H. 
46,  59  Atl.  376,  68:  432 

To  refusal  of  peremptory  instruction. 

289.  Preserving  an  exception  to  the  re- 
fusal by  the  trial  court  of  a  peremptory  in- 
struction to  find  for  defendant  on  the  whole 
evidence  requires  the  appellate  court  to  re- 
view the  evidence  as  a  whole.  Fuchs  v.  St. 
Louis,  167  Mo.  620,  67  S..  W.  610,       57:  136 

2.  To  Evidence. 

a.  Admission  of. 

See  also  Trial,  62,  63. 

290.  An  objection  that  evidence  ofTered  is 
incompetent,  immaterial,  and  irrelevant  is 
sufTicient  if  the  evidence  is  "no  evidence  at 
all."  State  v.  Bartlett,  170  Mo.  658,  71  S. 
W.  148,  59:  756 

291.  An  objection  to  the  admission  of 
evidence  in  answer  to  a  question  propjunded 
to  a  witness,  on  the  ground  that  it  is  "im- 
proper and  incompetent,"  or  that  it  is  "ir- 
relevant and  immaterial  and  does  not  rebut 
anything,"  is  too  general  to  raise  any  ques- 
tion for  the  consideration  of  the  appellate 
court.  Cincinnati,  I.  St.  L.  &  C.  R.  Ck).  v. 
Howard,  124  Ind.  280,  24  N.  E.  892,  8:  593 
Stringer  v.  Frost,  116  Ind.  477,  19  N.  E.  331, 

2:  014 

292.  An  objection  to  evidence  as  "incompe- 
tent and  immaterial"  is  suflficient  to  appraise 
the  court  of  the  real  nature  of  the  objection, 
when  it  immediately  succeeds  eight  previous 
objections  to  similar  evidence,  made  upon 
the  ground  that  the  witness  was  not  com- 
petent, to  testify  to  transactions  and  con- 
versations with  a  deceased  person.  Ke  Eys- 
aman's  Will,  113  N.  Y.  62,  20  N.  t.  61.3, 

3:  599 

293.  An  exception  to  a  question  will  not 
be  considered  when  the  answer  is  not  given. 
Kimball  v.  Carter,  95  Va.  77,  27  S.  E.  82.3. 

38:  570 


294.  An  exception  to  a  ruling  on  a  qne*- 
tion  does  not  show  error  if  it  does  not  ap- 
pear that  the  question  was  answered.  Lew- 
is V.  Tapman,  90  Md.  294,  45  AtL  459, 

47:  385 

295.  An  exception  to  a  question,  which 
subjects  the  court  to  unnecessary  labor  and 
danger  of  mistake  by  being  required  to 
search  through  a  record  to  ascertain  the 
facts  that  ought  to  be  embodied  in  the  ex- 
ception itself  will  not  be  considered.  Kim- 
ball V.  Carter,  95  Va.  77,  27  S.  E.  823, 

38:  570 

296.  An  objection  that  a  hypothetical 
question  "is  not  a  proper"  one  is  too  general 
to  raise  any  question  for  a  review  by  the 
appellate  court.  I.ongan  v.  Weltmer,  180 
Mo.  322,  79  S.  W.  656,  64:  969 

297.  Objections  to  the  admission  of  testi- 
mony in  criminal  as  well  as  in  civil  cases 
must  state  opportunely  the  reasons  there- 
for, in  order  to  preserve  rulings  for  a  re- 
view. State  v.  Hope,  100  Mo.  347,  13  S.  W. 
490,  8:  608 

298.  Ah  objection  to  evidence  on  a  specific 
ground  waives  other  grounds.  Bailev  v. 
Chicago.  M.  &  St.  P.  R.  Co.  3  S.  D.  *531, 
54  N.  W.  596,  19:  653 

299.  Error  cannot  be  assigned  to  the  mere 
introduction  of  evidence  whic'h  was  not 
shown  to  be  irrelevant  when  it  was  given, 
but  only  shown  to  be  so  on  cross-examina- 
tion, where  no  motion  was  made  to  strike 
it  out.  Jacksonville,  T.  &  K.  W.  R.  Co.  v. 
Peninsular  Land,  T.  &  Mfg.  Co.  27  Fla.  1, 
157,  2   So.  661,  9  So.  689,  17:  33 

300.  The  benefit  of  an  objection  to  the  ad- 
mission of  evidence  cannot  be  availed  of  on 
appeal,  if  such  evidence  is  admitted  over  the 
objection,  unless  the  objecting  party  applies 
to  the  court  to  exclude  the  evidence  object- 
ed to,  and  thus  obtafns  a  distinct  ruling  as 
to  its  admissibility.  Roberts  v.  Bonaparte, 
73  Md.  191,  20  Atl.  91 8,  10:  689 

301.  An  objection  to  a  question  is  not 
sufficient  to  exclude  evidence  where  it  i» 
not  apparent  from  the  question  itself  that 
the  response  thereto  will,  upon  any  theory 
of  the  case,  be  inadmissible;  but,  if  inadmis- 
sible testimony  is  given  in  response  to  it, 
a  motion  should  be  made  to  strike  it  out. 
People  v.  Lawrence,  143  Cal.  148,  76  Pac. 
893,  68:  1^3 
What  questions  raised. 

302.  Objections  that  testimony  is  incom- 
petent and  immaterial  will  not  justify  re- 
versal on  the  ground  that  the  plea  was  not 
sufficiently  definite  to  warrant  its  admis- 
sion. Bacon  v.  Reich,  121  Mich.  480,  80  N. 
W.  278,  49:  311 

303.  An  objection  to  a  deed  as  incompe- 
tent, immaterial,  and  irrelevant  is  not  spe- 
cific enough  to  reach  defects  in  its  execu- 
tion,— as,  that  it  was  not  witnessed.  Ru- 
pert V.  Penner,  35  Neb.  587,  53  N.  W.  598, 

17:  824 

304.  An  objection  to  the  competency  of 
evidence  is  not  sufficient  to  raise  the  ques- 
tion of  the  competency  of  the  witness,  where 
the  evidence  is  competent,  but  the  witness 
is  under  statutory  disability  to  testify  to 


APPEAL  AND  ERROR.  V.  a,  8. 


73 


the  facte.     Hoag  v.  Wright,  174  N.  Y.  36, 
66  N.  E.  579,  63:  163 

305.  An  objection  that  a  witness  is  not 
an  expert  is  insufficient  to  raise  the  question 
of  the  competency  of  opinion  evidence  on  the 
question  involved.  Detzur  v,  B.  Stroh 
Brewing  Co.  119  Mich.  282,  77  N.  W.  948, 

44:  500 
,  306.  An    objection    that    a    hypothetical 

question  is  incompetent  does  not  raise  the 
point  that  the  question  is  not  in  proper 
form  because  it  includes  the  witness'  under- 
standing of  the  testimony  of  another  wit- 
ness. »  Id- 
307.  Objecting  to  the  admission'  in  evi- 
dence of  a  will  for  the  reason  that  it  is  im- 
material and  incompetent  for  any  purpose 
is  not  sufficient  to  raise  the  question  wheth- 
er or  not  it  is  sufficiently  authenticated  or 
proved  to  be  admissible.  Crawford  v.  With- 
■  erbee,  77  Wis.  419.  46  iN.  W.  545,  9:  561 
V  308.  An  objection  that  footprints  made 
in  a  box  of  sand  were  not  made  under  con 
ditions  similar  to  those  made  in  a  desert 
is  not  raised  by  a  general  objection  to  the 
proof  of  the  footprints  in  the  box,  without 
any  specific  objection  to  the  aissimilarity  of 
the  conditions.  People  v.  Searcey,  121  Cal. 
1,  53  Pac.  359,                                          41:  157 

309.  An  objection  to  evidence  of  an  agree- 
ment as  irrelevant  and  incompetent  is  not 
sufficiently  specific  to  raise  the  point  that 
an  agent  vVho  made  the  agreement  for  one 
of  the  parties  was  not  authorized  to  make 
it.  Hangen  v.  Hachemeister,  114  N.  Y.  566, 
21N.  E.  1046,  5:137 

310.  An  objection  to  the  incompetency  of 
the  admissions  of  the  president  of  a  de- 
fendant corporation,  made  a  few  hours  after 
an  accident,  does  not  raise  the  question  of 
his  authority  to  make  a  settlement,  or  of 
his  being  engaged  in  the  company's  business, 
or  in  an  attempt  to  make  a  compromise. 
Detzur  v.  B.  Stroh  Brewing  Co.  119  Mich. 
282,  77  N.  W.  948,  44:  50U 

311.  An  objection  that  declarations  were 
too  remote  to  be  proved  cannot  be  raised  for 
the  first  time  on  appeal,  where  the  objection 
at  the  trial  was  merely  general.  Morrill  v. 
Palmer,  68  Vt.  1,  33  Atl.  829,  33:  411 

312.  A  general  objection  to  the  introduc- 
tion of  a  map  in  evidence  on  the  question  ot 
a  town  boundary  is  not  sufficient  to  raise 
an  objection  to  the  lack  of  proof  that  it 
was  a  genuine  map  published  by  order  of 
the  legislature.  Com.  v.  King,  150  Mass. 
221,  22  N.  E.  905,  .  5:  536 

313.  A  general  objection  to  declarations 
of  two  persons  whose  statements  are  not 
distinguished  is  insufficient  to  question  the 
admissibility  of  the  declarations  of  one  of 
them.  Holmes  v.  Turners  Falls  Lumber  Co. 
150  Mass.  535,  23  N.  E.  305,  6:  283 

6.  Exclusion. 

314.  An  exception  to  a  decision  of  the 
court  overruling  an  offer  of  evidence  or  ex- 
cluding a  defense  must  state  the  ground 
upon  which  the  offer  was  made.  Dale  v. 
See  (N.  J.  Sup.)  51  N.  J.  L.  378,  18  Atl. 
308.  6:583 


315.  An  exception  to  the  exclusion  of  a 
question  cannot  be  maintained  where  there 
is  nothing  to  show  what  the  answer  would 
have  been,  or  what  there  was  an  offer  to 
prove.  Sliinners  v.  Proprietors  of  Locks  & 
Canals,  154  Mass.  168,  28  N.  E.  10,     12:  554 

Smethurst  v.  Independent  Cong.  Church, 
148   Mass.  261,   19  N.  E.  387,  2:  6J5 

Smith  v.  Niagara  F.  ins.  Co.  GO  Vt.  6o2, 
15  Atl.  353,  1:  216 

3.  To  Instructions. 

316.  An  exception  is  sufficient  to  bring  up 
for  review  a  portion  of  a  charge  to  the 
jury  when  it  particularly  sets  out  the  lan- 
guage complained  of.  Scott  v.  Astoria  & 
C.  River  R.  Co.  43  Or.  26,  72  Pac.  594, 

62:   543 

317.  An  exception  to  the  "instructions  on 
the  question  of  exemplary  damages"  is  too 
indefinite  to  raise  any  question  in  the  ap- 
pellate court.  Giddinga  v.  Freedley,  128 
Fed.  355,  65:  327 

318.  An  exception  "to  the  court's  measure 
of  damages"  is  sufficient  if  the  charge  on  the 
measure  of  damages  constitutes  a  single 
subject,  and  the  circumstances  are  such  that 
the  judge  eould  not  have  misapprehended, 
the  SL'ope  of  the  exception.  HinJman  v. 
First  hat.  Bank,  50  C.  C.  A.  623,  112  Fed. 
931,  57:  108 

319.  A  general  request  for  an  instruction 
that  under  the  law  and  evidence  the  plain- 
tiff cannot  recover  is  too  broad  to  raise  the 
question  of  failure,  in  an  action  on  an  in- 
surance policy,  to  prove  that  proofs  of  loss 
had  been  furnished  as  required  by  the  pol- 
icy. Such  a  defect  should  be  specified  in  the 
request.  Hoose  v.  Prescott  Ins.  Co.  84  Mich. 
309,  47  N.  W.  587,  11:340 
Confining  to  objectionable  portion. 

320.  A  broadside  exception  "to  the  charge 
as  given"  will  not  be  considered.  Pierce  v. 
North  Carolina  R.  Co.  124  N.  C.  83,  32  S.  E. 
399,  44:  316 

321.  A  general  exception  to  the  court's 
charge  to  the  jury  is  unavailing  without  a 
specification  calling  the  attention  of  the 
court  to  the  particular  error,  that  it  may 
be  corrected.  Wheeler  v.  Grand  Trunk  R. 
Co.  70  N.  H.  607,  50  Atl.  103,  54:  955 

322.  An  exception  to  an  entire  charge  of 
the  court,  or  to  a  series  of  propositions  in 
gross,  cannot  be  sustained  if  any  portion 
excepted  to  is  sound.  Morrill  v.  Palmer,  68 
Vt.  1,  33  Atl.  829,  33:411 

323.  A  general  objection  is  not  sufficient 
to  raise  ■  the  point  that  an  instruction  is 
slightly  defective  in  form  and  m„y  be  mis- 
understood. Phoenix  Ins.  Co.  v.  Flemming, 
65  Ark.  54,  44  S.  W.  464,  39:  789 

324.  One  who  reserves  only  a  general  ex- 
ception to  a  charge  cannot  afterwards  be 
allowed  to  select  particular  phrases  and 
found  special  exceptions  thereon.  Com.  v. 
Tolman,  149  Mass.  229,  21  N.  E.  377,     3:  747 

325.  A  single  exception  covering  several 
distinct  propositions  of  an  instruction  col- 
lectively is  inoperative  if  one  of  the  propo- 
sitions is  sound.  Giddings  v.  Freedley,  128 
Fed.  355,  65:  327 


74 


APPEAL  AND  ERROR,  V.  b— d. 


326.  An  exception  covering  several  dis- 
tinct propositions  of  the  charjre  to  the  jury 
is  insufficient  if  either  proposition  is  correct. 
Hindman  v.  First  JNat.  Bank,  50  C.  C.  A. 
623,  112  Fed.  931,  57:  108 
Refusal  or  failure  to  instruct. 

327.  An  exception  to  "refusals  to  charge 
as  requested"  is  not  sufficiently  definite, 
where  some  of  the  requests  were  given  as 
requested,  others  modified,  and  some  re- 
fused. Read  v.  Nichols,  118  N.  Y.  224,  23  N. 
E.  468,  7:  130 

328.  A  statement  in  a  bill  of  exceptions, 
that  the  court  refused  to  give  certain  num- 
bered instructions  asked  by  defendant,  to 
which  refusal  of  the  instructions  thus  asked 
the  defendant  by  his  counsel  then  and  there 
excepted  at  the  time,  will  entitle  defendant 
to  have  such  refused  instructions  considered 
on  appeal,  and  win  not  be  treated  as  a  gen- 
enil  exception  to  the  refusal  of  the  instruc- 
tions as  a  whole.  Weber  v.  Kansas  City 
Cable  R.  Co.  100  Mo.  194,  12  S.  W.  804, 

7:  819 

329.  Objecting  that  the  trial  judge  did  not 
instruct  the  jury  upon  all  the  grades  of 
homicide  to  which  the  evidence  may  be  rea- 
sonably applicable  is  futile  in  the  absence 
of  a  request  for  instructions  on  the  lesser 
grades  than  that  of  which  the  accused  was 
convicted.  Lovett  v.  State,  30  Fla.  142,  11 
So.  5r.O,  17:  705 

330.  A  prayer  for  instructions  to  raise 
the  question  of  the  sufficiency  or  insufficien- 
cy of  p.eaaings  must  be  framed  with  a  di- 
rect reference  to  them.  South  Baltimore 
Co.  V.  Muhlbach,  69  Md.  395,  16  Atl.  117, 

1:507 

b.  Necessity  for  Exceptions. 

Vested  Rights  as  to,  see  Constitutional  Law, 

812.  • 
Retrospective  Statute  as  to,  see   Statutes, 

545. 
Strikin.,'  out  Evidence  not  Objected  to,  see 

Trial,  32-34. 
See  also  infra,  351. 
For  Editorial  Notes,  see  infra,  XL  §  10. 

331.  A  he  withdrawal  of  a  special  defense 
is  not  subject  to  review  on  appeal  if  no  ob- 
jection or  exception  is  taken  thereto. 
Southern  P.  R.  Co.  v.  Dufour,  95  Cal.  615, 
30  Pac.  783,  19:  92 

332.  Rulings  on  the  admission  and  rejec- 
tion of  testimony  will  not  be  considered  if 
no  exception  was  preserved  to  them.  Ebner 
v.  Mackey,  186  III.  297,  57  N.  E.  834,    51:  298 

332a.  The  Illinois  supreme  court  cannot 
consider  the  exclusion  of  testimony,  where 
no  exception  to  the  ruling  was  preserved. 
Anheuser-Kusch  Brew.  Asso.  v.  Hutmacher, 
127  III.  0.52,  21  N.  E.  626,  4:  5/5 

333.  The  api>cl!ate  court  will  not  review 
a  discrepancy  between  an  indictment  char- 
ging misapplication  of  funds  on  September 
1,  18ii3,  nnd  proof  showing  the  transaction  to 
have  been  on  November  1,  1894,  where  no 
exception  was  taken  with  reference  to  it, 
and  there  is  nothing  to  show  that  any  prac- 
tical injustice   was  done  by  it  in  the   trial 


of  the  cause.    Jewett  v.  United  States,  41 
C.  C.  A.  88,  100  Fed.  832,  53:  568 

334.  In  the  absence  of  a  special  exception 
signed  and  sealed  by  the  judge,  an  objection 
that  there  is  no  evidence  to  support  an  in- 
struction will  not  be  considered  on  appeal. 
Norfolk  &  W.  R.  Co.  v.  Hoover,  79  Md.  253, 
29  Atl.  994,  25:  710 

335.  Objectionable  remarks  of  counsel   in 
arguing  to  the  jury  must   be  preserved  by        ' 
bill  of  exceptions,  to  be  the  subject  of  re- 
view on  appeal.    Illinois  C,  R.  Co.  v.  Josey, 
110  Ky.  342,  61  S.  W.  703,  54:78 

336.  In  tbe  absence  of  exception  to  the 
conduct  of  the  prosecuting  attorney  in  read- 
ing the  verdict  of  a  coroner's  jury  in  pro- 
pounding a  question  to  a  witness  the  su- 
preme court  will  not  set  aside  a  ver- 
dict of  guilty  in  a  murder  case  merely  be- 
cause the  coroner's  verdict  stated  that  the 
homicide  for  which  accused  was  on  trial  was 
unjustified.  State  v.  Coleman,  186  Mo.  151, 
84  S.  W.  978,  69:  381 

337.  In  the  absence  of  proper  exceptions 

to  a  finding  on  a  mixed  question  of  law  and       J 
fact  the  only  question  is  whether  the  find-        \ 
ings  of  fact  warrant  the  conclusions  of  law. 
Carstens   v.   Leidigh    &   H.   Lumber   Co.    18 
Wash.  450,  51  Pac.  1051,  39:  548        . 

338.  An  objection  to  an  instruction  to 
whicfh  no  exception  was  taken  in  the  trial 
court  will  not  be  considered  on  appeal. 
Keady  v.  People,  32  Colo.  67,  74  Pac.  892, 

66:  353 

c  Time  for  Exoeptiona. 

See  also  Trial,  65. 

339-340.  An  exception  to  the  admission  of  1 
evidence  is  not  available  in  the  New  York  ' 
court  of  appeals,  where  the  objection  to  such 
evidence  was  not  made  until  after  it  had 
gone  to  fhe  jury,  and  where  there  was  no 
motion  to  strike  out.  Hangen  v.  Haehemeis- 
ter,  114  N.  Y.  566,  21  N.  E.  1046,       5:  137 

341.  Exceptions  filed  within  the  time  al- 
lowed, which  the  opposite  party  asks  to 
have  disallowed,  may  be  amended  in  the  dis- 
cretion of  the  presiding  justice,  with  con- 
sent of  the  excepting  party,  although  the 
time  for  filing  exceptions  has  passed.  Hector 
V.  Boston  Electric-Light  Co.  161  Mass.  558, 
37  N.  E.  773,  25:  554 

d.  Raising  Questions   by   Motion  or   Other 
Mode. 

By  Motion  to  Strike  Out  Evidence,  see  in- 
fra, 910. 
Motion  to  Exclude  Testimony,  see  Trial,  36. 
See  also  supra,  160,  264,  299-301,  340. 

342.  A  request  that  the  court  hold  that 
under  the  law  of  the  case,  the  plaintiff  could 
not  recover,  is  in  the  nature  of  a  demurrer 
to  the  evidence,  and  preserves  the  question 
of  law  for  review  on  appeal.  Hogan  v. 
Stophlet,  1/9  111.  150,  53  N.  E.  604,  44:  809 
Motion  for  new  triaL 
Vested  Rig-hts  as  to,  see  Constitutional  Law, 

812. 
See  also  infra,  516. 


I 


APPEAL  AND  ERROR,   VI.  a. 


75 


^o 

L""' 
^v* 

V 


34/{.  Questions  made  on  a  demurrer  need 
not  be  embodied  in  a  motion  for  a  new  trial 
in  order  to  be  saved  for  appeal.  Wise  v. 
Morgan,  101  Tenn.  273,  48  S.  \v.  971, 

44:  548 

344.  A  motion  for  a  new  trial  is»not  neces- 
sary to  preserve  the  right  to  have  a  review 
in  the  appellate  court  of  the  action  of  the 
trial  court  in  striking  out  on  motion  a  por- 
tion of  a  pleading.  Sternberg  v.  Levy,  159 
Mo.   617,   UO   S.    W.    1114,  53:  438 

345.  A  slight  difference  in  the  phrase- 
ology of  a  motion  for  a  new  trial  and  that 
of  a  bill  of  exceptions,  relating  to  testimony, 
will  not  prevent  the  consideration  <Ji  a  ques- 
tion as  to  the  exclusion  of  the  testimony, 
if  the  evidence  be  referred  to  with  sucn  cer- 
tainty .is  to  call  the  attention  of  the  court 
to  it  and  to  the  ruling  in  relation  thereto, 
so  that  the  judge  cannot  mistake  the  mat- 
ter. Springer  v.  By  ram,  l37  Ind.  15,  36  N. 
E.  361,  23:244 

346.  Questions  of  law  in  regard  to  the 
legal  sufficiency  of  the  evidence  to  sustain 
a  verdict  in  a  criminal  case  may  be  present- 
ed by  motion  for  new  trial,  which  may  be 
reviewed  by  the  supreme  court.  People  v. 
Lewis,  124  Cal.  551,  57  Pac.  470,  45:  783 

347.  'lo  present  a  question  as  to  damages 
on  appeal,  it  must  have  been  assigned  as  a 
cause  for  a  new   trial.     Vincennes  v.  Citi- 

;en3'  Gaslight  &  C.  Co.  132  Ind.  114,  31  N.  E. 
73,  16:  485 

348.  The  overruling  of  a  motion  to  quash 
the  entire  panel  of  jurors,  interposed  before 
the  trial  began,  may  be  considered  indepen- 
dently of  a  motion  for  a  new  trial  in  which 
it  was  unnecessarily  embodied,  but  which 
was  filed  too  late.  McKinney  v.  State,  3 
Wyo.  719,  30  Pac.  293,  16:  /lO 

349.  The  giving,  or  refusal  to  give,  in- 
structions can  be  considered  on  appeal  only 
under  an  assignment  of  errors  for  overruling 
a  motion  for  a  new  trial.  Louisville,  N.  A. 
«&  C.  R.  Co.  v.  Hart,  119  Ind.  273;  21  N.  E. 
753,  4:549 

350.  Error  in  giving  instructions  must  be 
made  a  ground  for  a  new  trial  in  the  motioni 
filed  for  that  purpose;  and  if  this  is  not  done 
the  instructions  cannot  be  reviewed  by  the 
supreme  court  of  Missouri.  State  v.  Nelson, 
101   Mo.  477,   14  S.  W.  718.  10:  39 

351.  An  alleged  error  in  the  charge  of  the 
court  cannot  be  reviewed  on  appeal,  where 
appellant  failed  to  complain  of  the  charge  by 
bill  of  exceptions  or  on  motion  for  a  new 
trial,  as  required  by  Tex.  Code  Crim.  Proc.  § 
723.  Johnson  v.  State,  42  Tex.  Crim.  Rep. 
87,  58S.  W.  60,  51:272 

352.  The  overruling  of  a  motion  to  strike 
out  parts  of  a  verdict  can  be  considered  on 
appeal  only  under  an  assignment  of  error 
for  overruling  a  motion  for  a  new  trial. 
Ix)uisville,  N.  A.  &  C.  R.  Co.  v.  Hart,  119 
Ind.  273,  21  N.  E.  753,  4:  549 

353.  If  a  verdict  does  not  cover  the  issues 
in  a  case,  or  so  far  cover  them  as  to  entitle 
the  appellees  to  a  judgment,  the  question  on 
appeal  must  be  presented  as  a  reason  in  the 
motion  for  a  new  trial,  or  by  a  motion  for  a 
judgment  upon  the  verdict.  Id. 


Motion  as  to  judgment. 

354.  Objections  to  a  judgment  must  be 
presented  by  the  proper  motion  to  the  trial 
court,  or  they  will  not  be  regarded  en  ap- 
peal. McNutt  v.  MclMutt,  116  Ind.  545,  19 
N.  E,  115,  2:  3<2 
Motion  for  nonsuit. 

355.  A  motion  for  a  nonsuit  on  the  ground 
that  there  is  no  evidence  of  negligence  on 
the  part  of  the  employer  against  whom  aa 
action  is  brought  by  a  servant  sufficiently 
raises  the  question  as  to  the  liabi.ity  of  the 
employer  for  the  negligence  of  a  feliow 
servant  by  which  the  injury  was  caused. 
Byrnes  v.  New  \ork,  L.  E.  &  W.  R.  Co.  113 
N.  Y.  251,  21  N.  E.  50,  4:  151 
Findings. 

356.  A  finding  by  the  trial  judge  is  unnec- 
essary when  the  appeal  is  used  as  a  suosti- 
tute  for  a  former  motion  in  error.  Hoadley 
V.  Savings  Bank  of  Danbury,  71  Conn.  599, 
42  Atl.  667,  44:  321 

357.  The  finding  by  the  trial  judge  when 
an  appeal  is  used  as  a  substitute  for  a  mo- 
tion for  new  trial  may  contain  a  state- 
ment of  facts  on  which  the  judgment  is 
founded,  or  which  are  necessary  to  present 
a  question  of  law  which  was  made  at  the 
trial  and  decided  by  the  judge,  or  it  may 
contain  a  recital  of  what  took  place  at  the 
trial  for  the  purpose  of  presenting  for  re- 
view rulings  upon  questions  of  evidence  or 
other  rulings  not  directly  afl'ecting  the  judg- 
ment. Id. 


VT.  Preliminary  Motions;  Dismissal;  Abate- 
ment; Abandonment. 

a.  In  General. 

Motion  to  Dismiss  as  Appearance,  see  supra, 
137. 

Vested  Right  by  Dismissal,  see  Constitution- 
al Law,  148. 

Dismissal  of  Appeal  from  Justice's  Judg- 
ment, see  Justice  of  the  Peace,  28,  29. 

See  also  infra,  455,  1184. 

358.  Where  both  the  parties  to  a  case 
move  for  a  new  trial,  the  granting  of  either 
motion  leaves  the  case  pending  in  the  lower 
court,  and  while  it  so  remains  a  judgment 
overruling  the  other  motion  cannot  be  law- 
fully brought  to  the  supreme  court  for  re- 
view. Central  of  Ga.  R.  Co.  v.  Murphey, 
113  Ga.  514,  38  S.  E.  970,  53:  'iZO 

359.  Under  a  rule  of  the  supreme  court  of 
Colorado,  by  which  a  party  who  interposes  a 
timely  written  request  before  the  court  for 
an  oral  argument  upon  the  final  hearing  is 
entitled  thereto,  if  he  does  not  interpose 
such  request  until  after  the  cause  is  finally 
determined  he  will  be  held  to  have  waived 
his  right  thereto;  and  such  waiver  applies 
also  in  cases  sent  to  the  supreme  court  com- 
mission for  preliminary  consideration  and 
report.  Rockwell  v.  Butler,  17  Colo.  2J0, 
29  Pac.  458,  17:  611 

360.  In  civil  actions,  privileges  which  rise 
to  the  dignity  of  constitutional  or  statutory 
rights  may  be  waived;  and  where  they  re- 


76 


APPEAL  AND  ERROR.  VI.  b. 


late  to  procedure  in  the  court, — such  as  oral 
arguments, — their  exercise  is  subject  to  rea- 
sonable regulation.  Id. 
Motion  for  affirmance. 

3G1.  A  motion  to  affirm  a  judgment  on  the 
ground  that  the  justices  of  the  appellate 
court  are  equally  divided  in  opinion  may 
be  denied  and  the  case  held  for  a  decision  on 
the  merits,  where  it  is  evident  that  before 
the  time  for  the  next  term,  at  which  the 
cause  would  be  heard,  several  of  the  jus- 
tices would  be  succeeded  by  others  on  the 
bench.    Luco  v.  Toro,  88  Cal.  26,  25  Pac.  983, 

11:  543 
Abatement  by  death. 

362.  The  death  of  the  accused  pending  a 
writ  of  error  from  a  judgment  of  conviction 
and  sentence  to  imprisonment  abates  the 
writ.  O'SuUivan  v.  People,  144  111.  604,  32 
N.  E.  192,  20:  143 

363.  Judgment  cannot  be  rendered  nunc 
pro  tunc  to  prevent  the  abatement  of  the 
writ  of  error  by  the  death  of  the  accused 
pending  his  writ  of  error  to  review  a  judg- 
ment of  conviction  and  sentence  to  imprison- 
ment. Id. 
Abandonment. 

36 1.  An  abandonment  of  an  appeal  is  not 
effected,  as  by  a  new  appeal,  by  the  bring- 
ing up,  by  a  writ  of  certiorari  on  appli- 
cation of  appellant,  of  a  bill  of  exceptions 
purporting  to  contain  a  part  of  the  evidence 
and  matters  supposed  to  be  necessary  to  pre- 
sent reserved  questions  of  law,  as  a  part  of 
the  record  on  appeal.  Lowe  v.  Turpie,  147 
Ind.  652,  44  N.  E.  25,  47  N.  E.  150,    37:  233 

b.  Groimds  for  Dismissal. 

365.  An  appeal  from  a  judgment  or  order 
which  the  district  court  entered  in  exact 
accordance  with  the  mandate  of  the  appel- 
late court  upon  a  previous  appeal  will  ue 
dismissed  upon  motion  of  the  appellee. 
Krantz  v.  Rio  Grande  W.  R.  Co.  13  Utah,  1, 
43  Pac.  623,  32:  828 
Change  in  circumstances  pending  appeal. 

366.  An  appeal  will  be  dismissed  where 
the  judgment  has  been  performed.  Hintrag- 
er  v.  Mahony,  78  Iowa,  537,  43  IN.  W.  522, 

6:  50 

367.  An  appeal  from  a  decision  in  quo 
warranto  wiil  not  be  dismissed  because  the 
appellant  pending  the  appeal  has  been  re- 
moved from  office  for  insubordination  in  tak- 
ing the  appeal.  State  ex  rel.  Rylands  v. 
Pinkerman,  63  Conn.   176,  28  Atl,    110, 

22:  633 

368.  An  appeal  from  a  judgment  in  an  ac- 
tion broug*ht  to  establish  an  interest  in  a 
mining  claim  will  not  be  dismissed  because, 
since  the  appeal  was  taken,  defendants  have 
parted  with  their  interest  in  the  claim  to  one 
who  has  received  a  patent  from  the  govern- 
ment, if  notice  of  the  pendency  of  the  action 
was  filed  in  the  proper  county.  McCarthy  v. 
Speed,  11  S.  D.  302,  77  N.  W.-590,  12  S.  D.  7, 
80  N.  W.  135,  50:  184 

369.  An  appeal  from  a  decree  dismissing  a 
bill   askin'^  to  have  tax   bills  dec.ared   void 
as  a  cloud  upon  title  is  improperly  dismissed  I 
Against  the  objection  of  the  appellant,  upcfn ' 


proof  that  the  other  parties  had  caused  the 
tax  bills  to  be  canceled  and  marked  paid,  and 
had  paid  all  the  costs  which  had  arisen  or 
might  arise,  when  the  appellant  shows  that 
the  object  of  his  suit  is  to  have  the  bills  can- 
celed as  void  ab  initio,  and  that  during  the 
pendency  of  the  suit  he  has  conveyed  the 
property,  with  covenants  against  encum- 
brances. State  ex  rel.  Bayha  v.  Kansas  City 
Ct.  App.  97  Mo.  331,  10  S.  W.  855,  3:  476 
Irregularities  in  papers  or  proceedings. 

370.  Ihe  failure  of  an  appellant  to  meet 
every  requirement  of  the  rules  touching 
briefs  will  be  sufficient  cause  for  dismissal 
of  the  appeal.  Smith  v.  Deniff,  23  Mont.  65,, 
24  Mont.  20,  57   Pac.  557,   60  Pac.   398, 

50:  737 

371.  An  appeal  will  not  be  dismissed  on 
the  suggestion  or  request  made  in  argument 
only,  or  after  argument,  merely  for  lack  of 
any  assignment  of  errors.  Frenc^i  v. 
French,  84  Iowa,  655,  51  N.  W.  145,     15:  300 

372.  An  appeal  on  a  special  bill  of  excep- 
tions will  not  be  dismissed  for  lack  of  a 
general  bill  which  could  not  be  considered 
for  any  purpose  whatever.  Illinois  C.  R.  Co. 
V.  Minor,  69  Miss.  710,  11  So.  101,       16:  627 

373.  A  cause  will  not  be  dismissed  upon 
appeal  because  of  failure  to  aver  specifically 
in  the  petition  in  error  certain  facts,  where 
the  record  brought  up  with  the  petition  and 
referred  to  thereby  contains  what  is  lack- 
ing in  the  petition,  and  the  petition,  after 
mentioning  certain  errors,  contains  a  general 
allegation  that  there  are  other  errors  mani- 
fest upon  the  face  of  the  record, — especially 
when  voluntary  appearance  to  the  petition 
was  entered  by  defendants  in  error  without 
objection  and  none  was  made  until  the  oral 
argument,  and  no  prejudice  to  defendants 
in  error  has  resulted  from  the  irregularity. 
Mauk  V.  Brundage,  68  Ohio  St.  89,  67  N.  E. 
152,  62:  477 

374.  An  appeal  from  a  judgment  and  from 
an  order  denying  a  motion  for  a  new  trial 
will  not  be  dismissed  because  the  order  had 
not  been  entered  when  the  appeal  was  taken,^ 
but  the  record  will  be  reviewed  as  if  no 
motion  had  been  made.  McCarthy  v.  Speed, 
11  S.  D.  362,  77  N.  W.  590,  12  S.  D.  7,  80 
N.  W.  135,  50:  184 
Delay. 

375.  Three  weeks'  delay  in  filing  a  brief 
for  appellant  in  a  criminal  case  will  not  re- 
quire the  dismissal  of  the  appeal,  when  the 
delay  was  due  to  the  removal  of  his  attor- 
ney from  the  state,  and  the  brief  was  filed 
as  soon  as  the  appellant,  who  was  confined 
in  jail,  could  procure  it  to  be  done  after  he 
learned  that  it  was  not  done  within  the 
proper  time.  State  v.  Williams,  18  Wash. 
47,  50  Pac.  580,  39:  821 

376.  An  appellate  court  is  not  deprived  of 
jurisdiction  of  a  cause  by  failure  to  get  -it 
into  that  court  for  the  term  snecified  in  the 
notice  of  appeal.  Hoff  v.  Shockley,  122  Iowa, 
720,  98  N.  W.  573,  64:  538 

377.  An  appeal  by  a  defendant,  who  does 
not  serve  his  notice  of  appeal  upon  his  co- 
defendant,  nor  join  in  the  appeal  of  the  lat- 
ter, will  be  dismissed,  where  the  statute  re- 
quires notice  of  appeal  to  be  served  on  alT 


APPEAL  AND  ERROR,  VII.  a— c. 


77 


parties  who  have  appeared  in  the  action,  and 
who  do  not  join  in  the  notice  of  appeal. 
Davia  v.  Tacoma  R.  &  P.  Co.  35  Wash.  203, 
77  Pac.  209,  €6:  802 

Escape  of  appellant. 

378.  Where  appellant  from  a  conviction 
of  murder  escapes  pending  appeal,  and  does 
not  comply  with  an  order  to  surrender  him- 
self to  await  the  result,  the  appeal  will  be 
dismissed.  State  v.  Carter,  98  Mo.  431,  11 
S.  W.  979,  4:  621 


VIL  Hearing  and  Determination. 
a.  In  General;  Rules  of  Decision. 

379.  A  judgment  which  was  correct  when 
rendered,  holding  that  a  collateral  inheri- 
tance tax  law  was  unconstitutional  for  lack 
of  any  provision  for  notice  of  the  proceed- 
ings to  ascertain  the  amount  of  the  tax, 
may  be  reversed  on  account  of  an  amend- 
ment enacted  pending  the  appeal,  by  which 
the  defect  in  the  law  is  cured.  Ferry  v. 
Campbell,  110  Iowa,  290,  81  N.  W.  604, 

50:92 
Rules  of  decision. 
See  also  infra,  679.  686,  1177. 

380.  An  appellate  court  draws  conclusions 
of  law  from  a  special  verdict,  but  does  not 
draw  conclusions  of  fact  from  evidence. 
Behring  v.  Somerville  (N.  J.  Err.  &  App.)  63 
N.  .J.  L.  568,  44  Atl.  641,  49:  578 

381.  An  insufficient  complaint  which  was 
tested  by  demurrer  cannot  be  aided  on  ap- 
peal by  reading  into  it  a  fundamental  fact 
from  the  findings  of  the  jury.  Pittsburg, 
C.  C.  &  St.  Ti.  R.  Co.  V.  Moore",  152  Ind.  345. 
53  N.  E.  290,  419.  44:  638 

382.  Words  used  by  the  court  in  instruct- 
ing the  jury  must,  in  determining  whether  or 
not  they  were  erroneous,  be  construed  in  the 
sense  in  which  thev  were  used.  Cox  v. 
Royal  Tribe  of  Joseph,  42  Or.  365,  71  Pac. 
73,  60:  620 

383.  Where  an  erroneous  instruction  ap- 
pears in  the  record,  if  it  be  erroneous  to  such 
a  degree  that  it  could  not  be  cured  by  some 
other  instruction,  the  court  will  consider  it, 
although  it  does  not  appear  that  all  the  in- 
structions are  in  the  record.  Vancleave  v. 
Clark,  118  Ind.  61,  20  N.  E.  527,  3:  519 

384.  Where  all  parties  intended  to  treat 
the  case  as  though  the  court  had  dismissed 
the  action  or  granted  a  nonsuit  on  the 
ground  that  the  plaintiff  had  failed  to  "prove 
a  SHflficient  case  for  the  jury,"  it  will  be  so 
treated  by  the  supreme  court  under  the 
Colorado  Dractice.  W^dsworth  v.  Union  P. 
R.  Co.  18  Colo.  600,  33  Pac.  515,  23:  812 

b.  Who  may  Complain. 

Objections  as  to  which  Party  is  Estopped, 

see  infra,  VII.  g. 
See  also  supra,  100;  infra,  VII.  f. 

.385.  A  proper  party  to  appeal  or  writ  of 
error  is  entitled  to  be  heard  in  the  court  of 
review  by  counsel  regardless  of  whether  that 
will,  for  the  time  being,   recognize   him   as 


having  a  certain  status,  which  is  one  of  the 
very  matters  to  be  decided  on  such  review. 
State  ex  rel.  Burner  v.  Huegin,  110  Wis.  189, 
85  N.  W.  1046,  62:  700 

386.  The  question  of  costs  allowed  by  the 
trial  court  will  not  be  considered  on  appeal, 
at  the  instance  of  the  party  prevailing  in  the 
trial  court,  where  no  appeal  was  taken  from 
the  judgment  upon  that  question.  Carney  v. 
Hennessey,  74  Conn.  lOT,  49  Atl.  910, 

53:  699 

387.  On  appeal  by  defendant,  plaintiff  can- 
not ask  that  the  d€cree  be  changed  or  al- 
tered in  the  appellate  court.  Schlawig  v.  De 
Peyster,  83  Iowa,  323,  49  N.  W^.  843,     13:  785 

388.  The  insufficiency  of  an  unverified  an- 
swer to  a  verified  complaint  cannot  be  insist- 
ed on  by  plaintiff  in  the  appellate  court  if 
the  trial  court  rules  against  him  and  he 
takes  no  appeal.  Morgan  v.  Southern  P.  Co. 
95  Cal.  510,  30  Pac.  603,  17:71 

389.  An  appellant  cannot  assign  for  errors 
matters  which  affect  other  defendants  who 
refuse  to  join  in  the  appeal.  Baum  v.  Lynn, 
72  Miss.  932,  18  So.  428,  30:  441 

390.  One  of  two  defendants  cannot  assign 
errors  upon  a  general  exception  by  both  to 
the  overruling  by  the  court  of  demurrers  to 
the  complaint,  filed,  one  by  both  defendants 
demurring  generally  to  each  paragraph  of 
the  complaint,  and  others  by  the  complain- 
ing defendant  attacKing  specified  paragraphs 
of  it.  South  Bend  v.  Turner,  156  Ind.  418,  60 
N.  E.  271,  54:  396 

391.  Objection  cannot  be  made  on  appeal 
to  the  consolidation  of  two  creditors'  bills, 
by  one  who  did  not  become  a  party  to  the 
litigation  until  after  the  consolidation  was 
effected,  who  made  no  objection  to  it  in  the 
trial  court,  and  whose  rights  are  not  shown 
to  have  been  prejudiced  by  it.  Russell  y. 
Chicago  Trust  &  Sav.  Bank,  139  111.  538,  29 
N.  E.  37,  17:  345 

392.  Where  devisees  in  a  will  appeal  from 
a  decree  which  rejects  the  will  so  far  as  they 
are  concerned,  while  establishing  it  in  favor 
of  other  specific  devisees,  the  decree  will,  in 
the  absence  of  a  cross  appeal,  be  considered 
final  and  conclusive  as  to  the  latter,  although 
they,  together  with  the  contestants  of  the 
will,  come  before  the  appellate  court  as  ap- 
pellees. Randolph  v.  Lampkin,  90  Ky.  551, 
14  S.  W.  538,  10:  87 

c.  Evidence;  Amendments;  Trial  de  Novo. 

Evidence. 

As  Part  of  Record  on  Appeal,  see  supra,  IV. 

f. 
As  to  Judicial  Notice  by  Appellate  Court, 

see  Evidence,  I. 
On  Appeal  from  Commissioners  in  Eminent 

Domain  Proceedings,  see  Evidence,  1709. 
See  also  supra,  164,  249. 

393.  Testimony  introduced  on  an  immate- 
rial matter  not  in  issue  cannot  be  considered 
on  appeal  in  an  equity  case  tried  de  novo, 
although  no  exception  was  taken  to  its  ad- 
mission. Blagen  v.  Smith,  34  Or.  394,  56 
Pac.  292,  44:  .')22 

394.  Proof  in  an  appellate  court  to  obtain 
an  allowance  of  alimony,  counsel  fees,  and 


78 


APPEAL  AND  ERROR.  VII.  d. 


suit  moTiey,  mnat  be  made  in  addition  to  the 
proof  taken  when  a  similar  application  was 
made  to  and  granted  by  a  lower  court. 
Prine  v.  Prine,  36  Fla.  676,  18  So.  781, 

34:  87 
395.  A  reviewing  court  cannot  considei 
cases  and  statutes  for  the  purpcae  of  deter- 
mining what  is  the  law  of  another  state  bj 
which  the  contract  in  suit  is  alleged  to  be 
governed,  where  they  were  not  mentioned  in 
the  bill  of  exceptions,  and  it  is  apparent 
that  they  were  not  considered  by  tne  trial 
court.  Cherry  v.  Sprague,  187  Mass.  113, 
72  N.  E.  456,  67 :  33 

306.  Statutes  and  decisions  of  another 
state  not  put  in  evidence  at  the  trial  cannot 
be  used  for  the  first  time  at  the  argument 
of  a  case  on  report  to  the  supreme  judicial 
court  of  Jfnssachusetts.  Kelley  v.  Kelley, 
161  Mass.  111.  36  N.  E.  837,  25:  806 

307.  A  certified  copy  of  the  record  of  a 
deed  cannot  be  received  on  appeal  from  an 
action  tried  upon  an  agreed  statement  of 
facts,  to  contradict  such  statement  by  show- 
ing a  different  grantee  from  the  one  mmed 
therein.  Harvey  v.  Briggs,  68  Miss.  60,  8 
So.  274,  10:  62 
Amendments. 

See   also    supra,   121;   infra,   412,  499,  863, 
881-883,   1193. 

398.  An  amendment  of  a  complaint  which 
involves  a  question  of  fact  and  a  matter  of 
law  entirely  foreign  to  the  case  made  up 
on  appeal,  will  be  denied  in  the  anpellate 
court.  Howard  v.  Mutu«>l  Reserve  Fund  L. 
Asso.  125  N.  C.  49,  34  S.  E.  199,  45:  853 

399.  A  proposed  amendment  to  make 
pleadinsrs  conform  to  the  proof,  which  was 
erroneously  denied  by  the  court  on  the 
ground  that  it  was  unnecessary,  may  be 
treated  on  apneal  as  if  it  had  been  allowed, 
when  the  nVhts  of  the  parties  were  deter- 
mined on  the  facts  as  established  by  the 
evidence.  National  Bank  of  Commerce  v. 
Feenev,  9  S.  D.  550,  70  N.  W.  874,  12  S.  D. 
156.  80  N.  W.  186,  46:  732 

400.  Reviewing  courts  have  power  on  ap- 
peal to  so  amend  the  pleadings  as  to  con- 
form them  to  the  proofs,  in  order  to  affirm  a 
judgment,  but  have  no  such  power  for  the 
purpose  of  reversing  a  iudgment.  Amherst 
College  v.  Ritch,  151  N.  Y.  282,  45  N.  E. 
876,  37:  305 
Trial  de  novo. 

See  nlso  supra,  393:  infra,  811. 

401.  Facts  adjudicated  by  a  trial  court 
cannot  be  retried  on  appeal,  upon  the  certi- 
fied testimony.  Hoadlev  v.  Savings  Bank  of 
Dan^urv,  71  Conn.  599.  42  Atl.  667,      44:  .321 

402.  On  appeal  to  the  city  council  after 
the  first  trial  in  the  mayor's  court  of  An- 
derson, South  Carolina,  the  trial  must  be 
rfe  novo,  and  the  witnesses  examined  as 
though  there  had  been  no  previous  trial. 
Anderson  v.  O'Donnell,  29  S.  C.  355,  7  S.  E 
523,  1 :  032 

403.  An  appeal  from  the  county  court  to  a 
circuit  court  under  W.  Va.  Code  1899,  chap. 
39,  §§  47,  48,  and  chap.  112,  §  14.  is  to  be 
tried  by  the  record  as  made  up  in  the  county 
court,  and  does  not  give  a  right  to  a  new 
trial  by  jury,  or  otherwise  than  by  the  rec- 


ord, until  reversal  on  the  record.  Sisters- 
ville  Ferry  Co.  v.  Russell,  52  W.  Va.  356,  43 
S.  E.  1P7,  5;):  513 

404.  The  duty  of  the  supreme  court  to 
try  the  cause  anew  upon  the  judgment  roll 
and  render  final  judgment  therein  according 
to  the  justice  of  the  case,  which  is  imposed 
by  N.  D.  Sess.  Laws  1893,  chap.  82,  does  not 
require  the  court  to  perform  any  functions 
that  do  not  pertain  to  appellate  jurisdiction 
as  prescribed  by  the  Constitution.  Chris- 
tensen  v.  Farmers'  Warehouse  Asso.  5  N. 
D.  438,  67  N.  W.  300,  32:  730 

d.  Presumptions. 

405.  It  will  be  presumed  on  appeal  that  an 
appellant  who  had  an  appealable  interest, 
as  shown  by  the  record,  at  the  time  when 
the  judgment  was  rendered,  still  has  such 
right,  in  the  absence  of  proof  to  the  con- 
trary. Wood  V.  Seattle,  23  Wash.  1,  62  Pac. 
135.  52:  369 

406.  The  fact  that  the  entire  evidence  is 
not  in  the  record  will  not  require  the  as- 
sumption that  the  right  result  was  reached 
for  the  purpose  of  affirming  the  judgment, 
if  the  record  contains  errors.  Hauk  v.  Al- 
len.  126  Ind.  568,  25  N.  E.  897,         11:  706 

407.  No  presumption  can  be  indulged 
that  there  was  some  other  and  different 
service  of  process  made  from  that  which  ap- 
pears in  the  record  on  appeal  from  a  judg- 
ment by  default.  Lonkev  v.  Keyes  Silver 
Min.  Co.  21  Nev.  312,  31  Pac.  57,         17:  351 

408.  The  presumption  of  innocence  is  not 
sufficient  to  raise  an  inference  in  the  appel- 
late court  that  a  sale  was  of  the  original 
package  so  as  to  warrant  that  court  in  con- 
sidering the  claim  that  one  convicted  of  il- 
legal sales  was  exempt  from  prosecution 
under  the  state  law  because  the  sale  was 
of  an  original  package  brought  from  an- 
other state,  where  that  question  was  not 
raised  below,  and  the  record  shows  only  that 
the  property  was  shipped  from  the  other 
state  without  showing  that  it  was  in  the 
original  packas^p.  State  v.  Schuman,  36  Or. 
16,  58  Pac.  661,  .47:  153 

409.  On  appeal  from  a  judgment  setting 
aside  the  cancelation  of  a  marine  insurance 
policy  and  allowing  recovery  of  its  amount, 
for  mistake  arising  from  the  ignorance  of 
the  insured  that  the  insured  vessel  was  lost 
at  the  time  of  the  cancelation,  it  will  be 
presumed  that  delay  in  returning  the  pro 
rata  premiums  received  upon  the  cancelation 
was  explaimble  in  such  manner  as  not  to 
prejudice  plaintiff's  right  to  recover,  where 
no  defense  based  upon  such  delay  was  al- 
'oTed  in  the  answer,  or  m  any  way  alluded 
to  or  insisted  upon  at  the  trial,  and  there 
is  no  finding  of  lact  or  law  in  relation  there- 
to. Duncan  v.  New  York  Mut.  Ins.  Co. 
138  N.  Y.  8S.  .33  N.  E.  730,  20:  386 

410.  It  will  be  presumed  on  appeal  that  a 
city  attorney  had  authority  to  file  a  peti- 
tion for  the  city,  in  the  absence  of  anything 
to  show  the  contrary.  Belleville  v.  Citi- 
zens' Horse  R.  Co.  152  111.  171,  38  N.  E.  584, 

26:  681 

411.  Both    parties    are    deemed    to    have 


APPEAL  AND  ERROR.  VII.  d. 


79 


asked  for  a  direction  of  the  verdict,  where 
defendant's  counsel,  after  moving  unsuccess- 
fully for  a  nonsuit,  replied  to  an  inquiry 
frora  the  court,  that  he  did  not  care  to 
have  any  question  submitted  to  the  jury, 
and,  after  a  request  by  plaintiffs  counsel  for 
the  direction  of  a  verdict,  stated  that  he 
desired  to  stand  on  his  motion  for  a  non 
suit,  while  neither  party  asked  to  have  any 
question  of  fact  submitted  to  the  jury. 
Trimble  v.  New  York  Central  &  a  R.  R:  Ck). 
1C2  N.  i'.  84,  56  N.  E.  532,  48:  115 

As  to  pleadings. 

412.  A  petition  may  be  considefed  upon 
appeal  as  having  been  amended  to  conform 
to  the  facts  proved,  where  it  is  manifest 
that  defendant  was  not  misled  or  surprised 
by  the  va.-iance,  so  that  the  trial  court 
would  doubtless  have  permitted  the  amend- 
ment upon  request.  Chicago,  M.  &  St.  P.  R. 
Co.  v.  Voelker,  65  C.  C.  A.  226,  129  Fed.  522, 

70:  264 
As  to  evidence  admitted. 

413.  It  cannot  be  assumed  on  appeal  that 
answers  of  witnesses  were  prejudicial  w..en 
they  do  not  appear  on  the  record.  Jackson 
v.  Jackson,  82  Md.  17,  33  Atl.  317,     34:  773 

414.  It  will  be  presumed,  if  no  objection 
appears  in  the  record  to  the  use  of  a  cer- 
tified copy  of  the  record  of  a  deed  in  evi- 
dence, that  a  constitutional  requirement  as 
to  producing  the  original  was  complied  with 
or  waived  in  the  court  below.  Summer  v. 
Mitchell,  29  Fla.  179,  10  So.  562,         14:  815 

415.  It  will  not  le  presumed  on  appeal 
that  evidence  properly  admitted  in  the  case 
for  one  purpose  was  considered  for  another 
purpose,  particularly  where  the  court  di- 
rected the  jury  to  consider  it  only  for  the 
first  purpose.  State  v.  Pancoast,  5  N.  D. 
516,  67  N.  W.  1052,  35:  518 
As  to  evidence  excluded. 

416.  The  rejection  of  written  evidence  can- 
not be  presumed  on  appeal  to  be  prejudicial 
when  the  record  does  not  show  the  nature 
of  the  evidence  rejected.  Modern  Woodmen 
Acci.  Asso.  V.  Shryock,  54  Neb.  250,  74  N.  W. 
607,  39:  826 

417.  It  will  be  presumed  that  the  rulings 
of  the  court  below  excluding  f.'om  evidence 
a  will  ofTered  to  show  the  condition  of  the 
testator's  mind,  and  claims  filed  in  the  pro- 
bate court,  ofi'ered  to  show  his  financial  con- 
dition, were  correct,  where  the  will  and  tne 
claims  are  not  contained  in  the  record. 
-Etna  L.  Ins.  Co.  v.  Florida,  69  Fed.  932, 
16  C.  C.  A.  618,  32  U.  S.  App.  753,     30:  87 

418.  The  exclusion  of  testimony  v/ill  not 
lie  presumed  error  where  the  evidence  is  noc 
in  the  record,  and  there  is  nothing  to  show 
that  it  was  not  excluded  because  intrinsi- 
cally incompetent,  or  a  mere  repetition  of 
testimony  already  given.  Mercer  v.  Corbin, 
117  Ind.  450,  20  N.  E.  132,  3:  221 
As  to  sufficiency  of  evidence. 

See  also  infra,  421-433,  453a. 

419.  Allegations  of  a  complaint  which  are 
necessary  to  support  the  judgment  will  be 
deemed  on  appeal  to  have  had  confirmation 
in  the  evidence.  Murray  v.  Murray,  115  Cal. 
266,   47   Pac.   37,  37:  620 

420.  Absence  of  evidence  to  support  a  jus- 


tice's judgment  cannot  be  presumed  where 
no  attempt  to  return  the  evidence  was  made, 
but  the  return  states  that  the  judgment 
was  rendered  after  listening  to  the  testi- 
mony and  after  due  deliberation.  Su.livan 
V.  Hall,  80  Mich.  7,  48  N.  W.  646,  13:  556 
As  to  lindin::s  or  verdict. 
Review  of,  see  infra,  VII.  1. 
See  also  infra  453a,  811. 

421.  All  controverted  facts  and  all  infer- 
ences therefrom  must  be  deemed  conclu- 
sively established  in  faVor  of  the  party  for 
whom  judgment  is  rendered,  when  both  par- 
ties are  in  the  position  of  having  asked  for 
a  direction  of  the  verdict.  Trimble  v.  New 
>  ork  C.  &  H.  R.  R.  Co.  162  N.  Y.  84,  56  N.  E. 
532,  48:  115 

422.  It  will  be  presumed  by  the  court  of 
appeals  that  all  the  facts  warranted  by  the 
evidence  and  necessary  to  support  the  judg- 
ment were  found  by  a  referee,  when  his 
decision  does  not  separately  state  the  facts 
found  by  him,  and  the  judgment  entered 
thereon  has  been  affirmed  by  the  appe.late 
division.  Solomon  v.  Continental  F.  Ins.  Co. 
160  N.  Y.  595,  55  N.  E.  279,  46:  682 

423.  On  review  of  a  verdict  directed  for 
the  defendant  after  plaintiff  asked  to  go 
to  the  jury,  all  the  facts  warranted  by  the 
evidence  must  be  assumed  as  settled  in 
favor  of  the  plaintiff.  Bank  of  Monongahela 
Valley  v.  Weston,  159  N.  Y.  201,  54  N.  E. 
40,  45:  547 

424.  The  presumptions  are  not  strong  in 
favor  of  the  correctness  of  a  ruling  g.^anting 
a  nonsuit.  Vermont  Marble  Co.  v.  Declez 
Granite  Co.  135  Cal.  579,  67  Pac.   1057, 

56:  728 

425.  It  will  be  presumed  that  a  judgment 
appealed  from  was  within  the  pleadings  and 
justified  by  the  proof,  if  nothing  appears  to 
the  contrarv.  Carter  v.  Gibson,  61  Neb. 
207,  85  N.  W.  45,  52:  468 

426.  In  the  absence  of  the  evidence  it  will 
be  assumed  that  findings  of  fact  by  the 
court  below  were  sustained  by  the  evidence 
and  contain  all  the  facts  which  the  evidence 
established.  Wiggins  v.  Muscupiabe  Land 
&  W.  Co.  113  Cal.  182,  45  Pac.  160,      32:  667 

427.  In  a  case  involving  the  question 
whether  certain  machinery  in  a  factory  is 
real  or  personal  property,  as  between  mort- 
gagor and  mortgagee,  the  findings  of  the 
master,  who  visited  the  factory  and  saw 
each  machine  and  its  mode  of  attachment, 
must  be  assumed  to  be  correct,  un!es3  the 
facts  and  evidence  reported  show  that  they 
are  wrong.  Southbridge  Sav.  Bank  v.  Ma- 
son, 147  Mass.  500,  18  N.  E.  406,         1 :  350 

428.  A  decision  of  the  trial  court  stating 
concisely  the  grounds  upon  which  the  is- 
sues have  been  decided,  and  directing  judg- 
ment to  be  entered  thereon  as  provided  by 
N.  Y.  Code  Civ.  Proc.  §  1022,  without  stat- 
ing separately  the  facts  found  and  the  con- 
clusions of  law,  has  the  same  effect  as  a  gen- 
eral verdict  rendered  by  a  jury,  and  the 
same  presumptions  arise  in  its  support. 
Amherst  Co.lege  v.  Pitch,  151  N.  Y.  282,  45 
N.  E.  876,  37:  305 

429.  Ail  the  facts  warranted  by  the  evi- 
dence and  necessary  to  support  a  judgment 


80 


APPEAL  AND  ERROR,  VII.  d. 


entered  upon  a  decision  stating  concisely 
the  grounds  upon  which  the  issues  were  de- 
cided, and  directing  entry  of  a  judgment, 
as  provided  by  N.  Y.  Code  Civ.  Proc.  § 
1022,  without  stating  separately  the  facts 
found  and  the  conclusions  of  law, — are  pre- 
sumed on  appeal  to  the  court  of  appeals 
from  a  judgment  of  affirmance  by  a  former 
general  term  of  the  supreme  court  to  have 
been  found  by  the  trial  court,  and  such  facts 
are  conclusive  on  the  court  of  appeals  if 
there  is  any  evidence  to  sustain  them.     Id. 

430.  An  excessive  verdict  cannot  be  sup- 
ported on  the  ground  that  it  may  include 
interest,  where  no  claim  was  set  up  in  the 
complaint  for  interest,  and  no  testimony  or 
instructions  concerning  it  given  on  the  trial. 
Miami  Powder  Co.  v.  Port  Roval  &  W.  C. 
R  Co.  38  S.  C.  78,  16  S.  E.  339,       21-:  123 

431.  An  express  statement  that  the  report 
and  verdict  are  concurred  in  by  ten  of  the 
jurors  defeats  any  presumption  that  all  of 
the  jurors  concurred,  as  required  by  law, 
although  all  signed  the  report.  Jackson- 
ville, 1.  &  K.  W.  R.  Co.  V.  Adams,  33  Fla. 
608,  15  So.  257,  24:  272 

432.  It  will  be  presumed  on  appeal  that 
the  court  found  against  a  counterclaim,  if 
it  omitted  to  set  out  any  finding  in  regard 
to  it,  and  the  evidence  clearly  justifies  a 
finding  against  it.  Wetzler  v.  Duffy,  78 
Wis.  170,  47  N.  W.  184,  12:  178 

433.  Where  a  special  verdict  on  the  ques- 
tion of  the  negligence  of  a  railroad  company 
finds  nothing  as  to  the  condition  of  the  en- 
gine or  as  to  the  manner  of  its  operation, 
the  facts  thus  omitted  must  be  regarded  as 
found  against  the  plaintiffs.  Louisville,  N. 
A.  &  C.  R.  Co.  V.  Hart,  119  Ind.  273,  21  N.  E. 
753,  4:  549 
As  to  instructions. 

434.  An  instruction  lost  and  not  ap- 
pearing in  the  record  will  be  presumed  to 
be  correct.  Jordan  v.  Benwood,  42  W.  Va. 
312,.  26  S.  E.  266,  36:  519 

435.  'Where  the  bill  of  exceptions  does  not 
allege  or  indicate  that  it  contains  all  the 
evidence  adduced  at  the  trial,  the  Arkansas 
supreme  court  must  assume  that  there  was 
evidence  sufficient  to  warrant  the  instruc- 
tions given,  if  they  stated  the  law  correctly. 
Dwelling-House*  Ins.  Co.  v.  Brodie,  52  Ark. 
11,  11  8.  W.   1016,  4:  458 

436.  If  instructions  given  would  have  been 
proper  under  any  evidence  that  might  have 
been  given  under  the  issues,  the  court  on  ap- 
peal will  presume  that  such  evidence  was  in 
fact  given,  where  the  evidence  is  not  in  the 
record.  Hilker  v.  Kelley,  130  Ind.  .356,  30 
N.  E.  304,  15 :  622 

437.  In  the  absence  of  the  evidence,  or  of 
a  statement  that  there  was  none,  the  appel- 
late court  will  not  presume  that  there  was 
none  to  support  an  instruction  given  by  the 
trial  court.  James  v.  Western  North  Caro- 
lina R.  Co.  121  N.  C.  523.  530,  28  S.  E.  537, 

46:  306 

438.  It  will  be  presumed  on  appeal  that 
the  jury  followed  an  erroneous  instruction 
allowing  interest  for  a  greater  period  than 
demanded  in  the  petition,  although  the  ver- 
dict is  much  less  than  the  damages  demand- 


ed.   Winney  v.  Sandwich  Mfg.  Co.  86  Iowa, 
608,  53  N.  W.  421,  18:  524 

439.  Where,  upon  an  exception  to  a  prop- 
osition in  a  general  charge,  the  court  with- 
draws it  and  instructs  the  jury  to  disregard 
it,  it  will  ordinarily  be  presumed  that  the 
jury  accepted  and  acted  on  the  correction. 
Goodsell  V.  Taylor,  41  Minn.  207,  42  N.  W. 
873,  4:  ft73 
As  to  jurisdiction. 

440.  The  jurisdiction  of  a  trial  court  which 
is  a  court  of  general  jurisdiction  will  be 
presumed  upon  appeal,  if  the  record  does  not 
show  its  absence.  O'Brien  v.  State,  125  Ind. 
38,  25  N.  E.  137,  9:  323 
As  to  records  and  proceedings  on  appeal 

441.  The  appellate  court  is  not  precluded 
from  considering  the  correctness  of  the  over- 
ruling of  a  demurrer  to  an  amended  eom- 
plaint  by  the  fact  that  the  original  and 
amended  complaints  as  they  appear  in  the 
transcript  are  alike,  on  the  theory  that  the 
original  complaint  was  erroneously  copied 
where  the  amended  one  should  appear,  where 
the  clerk  has  certified  that  the  amended 
complaint  was  correctly  copied,  and  his  duty 
required  the  copying  of  only  that  paper, 
Indianapolis  Union  R.  Co.  v.  Houlihan,  157 
Ind.  494,  60  N.  E.  943,  54:  787 

442.  The  presumption  that  the  abstract 
on  appeal  contains  the  record,  which  arises 
under  Iowa  Code,  §  4118  (supreme  court  rule 
22),  unless  it  is  aenied  or  corrected  by  a 
subsequent  abstract,  includes  the  presump- 
tion that  the  abstract  embodies  all  the  evi- 
dence, though  that  fact  is  not  expressly 
stated,  and  that  the  proper  steps  have  been 
taken  too  make  the  evidence  of  record. 
Kirchman  v.  Standard  Coal  Co.  112  Iowa, 
668,  84  N.  W.  939,  52:318 
As  to  regularity  of  proceeding  below  gen- 
erally. 

443.  Unless  the  record  o."  case  on  appeal 
sets  out  matter  from  which  the  appellate 
court  can  see  that  there  was  error,  tne  pre- 
sumption in  favor  of  the  correctness  of  the 
proceedings  below  universally  obtains, 
James  v.  Western  North  Carolina  R.  Co. 
124  N.  C.  362,  32  S.  E.  748,  46:  306 

444.  Where  it  appears  on  the  examination 
of  a  juror  that  he  was  placed  on  a  jury  as 
one  of  a  regular  panel,  and  the  record  fails 
to  show  that  it  was  done  by  order  or  direc- 
tion of  the  court  for  the  purpose  of  filling 
out  a  deficient  panel,  the  court  will  presume, 
where  a  challenge  has  been  sustained  on  the 
ground  that  the  juror  has  served  during  the 
preceding  year,  that  the  juror  was  not  one 
of  the  regular  panel,  and  that  the  challenge 
was  properly  sustained.  Gosihen  v.  England, 
119  Ind.  368,  21   N.  E.  977,  5:  253 

445.  When  a  circuit-court  commissioner 
takes  an  appeal  bond  in  proper  form  con- 
taining a  certain  penalty,  in  proceedings  had 
before  him  by  a  landlord  to  oust  his  tenant 
from  the  leased  property,  and  grants  an 
appeal  by  making  a  retu.*n  to  the  circuit 
court  of  such  proceedings,  with  the  affidavit 
and  bond  of  appeal,  it  will  be  presumed,  ia 
favor  of  the  jurisdiction  of  that  court,  not 
only  that  he  approved  the  bond,  but  also 
that  he  fixed  the  penalty  of  the  same  in 


APPEAL   AND  ERROR.  VII.  e. 


81 


accordance  witb  law,  although  the  bond  con- 
lains  no  indorsements  to  that  effect.  Hanaw 
V.  Bailev,   83   Midi.  24,  40  N.  W.   1039, 

9:  801 

446.  Since  no  response  will  satisfy  a  writ 
•of  habeas  corpus  unless  accompanied  with 
the  body  of  the  person  held  in  custody, 
or  unless  a  satisfactory  reason  for  his  non- 
production  is  piven,  it  will  be  presumed  in  a 
j^iven  instance,  whore  a  writ  has  been  is- 
sued, and  the  respondents  have  appeared  at' 
the  time  appointed  in  the  writ,  and  a  hear- 
ing is  had,  nothing  to  the  contrary  appear- 
ing, that  the  person  claimed  to  b^^illegally 
restrained  of  his  liberty  was  before  the  court 
at  that  time.  Simmons  v.  Georgia  Iron  & 
■Coal  Co.  117  Ga.  305.  43  S.  E.  780,     61:  739 

447.  A  third  extension  of  time  to  file 
•statement  of  evidence  on  a  motion  fo.-  new 
trial  will  be  presumed  to  be  within  the  time 
•of  a  former  extension,  where  it  was  duly 
allowed  by  the  trial  judge,  and  the  statute 
requires  extensions  to  be  within  the  time 
of  former  ones,  although  the  second  one  is 
not  on  file.  Crafts  v.  Carr.  24  E.  I.  397,  53 
Atl.  275,  (50:  128 
In  criminal  case. 

448.  On  appeal  from  conviction  for  crime, 
where  defendant  attacks  the  organization 
•or  impaneling,  either  of  the  grand  or  the 
petit  jury,  he  must  bring  up  the  record  of 
such  proceedings.  In  the  absence  of  the  rec- 
ord, the  proceedings  must  be  nresumed  to 
liave  been  regular  and  according  to  law. 
Parker  v.  People,  13  Colo.  155,  21  Pac.  1120, 

4:  803 

449.  The  transcript  of  the  record  in  a  case 
•carried  for  trial  to  a  county  different  from 
that  in  which  the  indictment  was  found  need 
not  show  affirmatively  that  the  grand  jury 
■which  returned  the  indictment  was  duly  im- 
paneled, in  orde."  to  give  jurisdiction.  That 
the  jury  was  legally  impaneled  will  be  pre- 
sumed from  a  statement  in  the  record  and 
a  recital  in  the  copy  of  the  indictment  con- 
tained therein,  that  the  indictment  was  re- 
turned by  a  grand  jury  of  the  county  from 
■which  the  record  was  transmitted.  O'Brien 
V.  State,  125  Ind.  38,   25  N.  E.  137,        9:  323 

450.  Where  the  original  indictment  is  re- 
■quired  by  statute  to  be  filed  with  the  clerk 
of  the  court  in  Which  the  trial  is  to  be  had 
upon  change  of  venue  in  a  criminal  case,  if 
the  required  transcript  is  made  out  and  filed 
it  \yiil  be  presumed  on  appeal  to  have  been 
accompanied  by  the  indictment,  in  the  ab- 
sence of  evidence  to  the  contrary:  and  the 
fact  that  the  record  is  silent  as  to  the  filing 
of  the  indictment  is  immaterial,  if  the  stat- 
ute does  not  require  it  to  make  mention 
•of  that  fact.  Id. 

451.  The  improper  separation  of  jurors 
<iuring  the  trial  of  a  capital  case  is  presumed, 
if  the  prisoner  is  convicted,  to  have  been 
prejudicial  to  him;  and  the  burden  of  proof 
is  upon  the  prosecution  to  show  that  the 
prisoner  has  suffered  no  injurv  thereby. 
Gamble  v.  State,  44  Fla.  429,  33' So.  471, 

60:  547 

452.  An  inference  that  a  prisoner  was  not 
present  in  court  at  the  time  the  verdict  of  a 
jury  against  him  was  received  will  not  be 

L.R.A.  Dig.— 6. 


permitted  to  overcome  the  legal  presumotion 
that  evervthing  was  rightly  done  in  court. 
Welsh  v.  State,  126  Ind.  71,  25  N.  E.  883, 

9:  664 
On  appeal  from  appellate  court. 

453.  A  conclusive  presumption  that  a 
judgment  of  reversal  by  the  appellate  di- 
vision was  not  based  upon  a  question  of 
fact  arises  under  N.  Y.  Code  Civ.  P.-oc.  § 
1338,  when  the  order  of  reversal  is  silent 
upon  that  subject,  although  the  opinion  in 
that  court  shows  an  intention  to  reverse 
upon  the  facts  as  well  as  the  law.  Spence 
v.  Ham,  163  N.  Y.  220,  57  N.  E.  412,    51 :  238 

453a.  All  the  facts  warranted  by  the  evi- 
dence, and  necessary  to  support  a  decision 
rendered  by  the  trial  court  without  stating 
separately  the  facts  found  and  tlie  conclu- 
sions of  law,  are  presumed,  on  appeal  to  the 
30urt  of  appeals  from  a  judgment  of  affirm- 
ance by  tlie  general  term,  to  have  been  found 
by  the  trial  court ;  and  the  oourt  of  appeals 
is  concluded  thereby.  Amherst  College  v. 
Ritch,  151  N.  Y.  282,'  45  N.  E.  876.      37:  305 

454.  Where  the  appellate  division  of  the 
supreme  court  allows  an  appeal  to  the  court 
of  appeals,  and  certifies  a  question  of  law 
for  the  latter  court  to  review,  the  presump- 
tion is  that  its  determination  of  the  case 
was  upon  the  merits,  and  not  a  matter  of 
discretion  whidi  the  court  of  appeals  cannot 
review,  unless  the  contrary  expressly  ap- 
oears  from  the  record.  Re  Davies,  168  N.  Y. 
89,  61  N.  E.   118,  56:  855 

455.  The  fact  that  defendant  in  a  divorce 
suit  is  guilty  of  contempt  in  refusing  to 
come  into  the  jurisdiction  of  the  court  and 
submit  to  cross-examination  is  not  sufficient, 
where  the  record  does  not  show  a  reversal 
on  the  facts  and  the  statute  requires  the 
reviewing  court  under  such  circumstances 
to  presume  it  was  on  the  law,  to  authorize 
the  court  of  appeals  to  affirm  an  order  of 
the  appellate  division  of  the  supreme  court 
which  reversed  an  order  of  the  special  term 
modifying  a  decree  awarding  the  income  of 
a"  fund  held  in  trust  for  his  benefit,  as  ali- 
mony, but  soijie  legal  error  in  the  order 
must  be  pointed  out.  Wetmore  v.  Wetmore, 
162  N.  Y.  503,  56  N.  E.  997,  48:  666 

e.  What  Reviewable  Generally. 

Condition  of  Record  as  Aff'ecting  Reviewabil- 
ity, see  supra,  IV. 

In  Condemnation  Proceedings,  see  Eminent 
Domain,  200. 

On  Appeal  from  Justice's  Judgment,  see 
Justice  of   the   Peace,   25. 

See  also  supra,  247,  280;  inf<-a,  1180,  1187. 

450.  Only  errors  of  which  the  appellant 
complains  can  be  considered  on  appeal.  Den- 
nis  V.  Caughlin,  22  Nev,   447,  41   Pac.   768. 

29:  731 

4.57.  In  no  case  will  the  supreme  court 
undertake  to  pass  upon  questions  presented 
by  a  bill  of  exceptions,  when  an  adjudica- 
tion of  them,  even  though  favorable  to  the 
plaintiff  in  error,  could  not  possibly  result 
in  any  practical  benefit  to  him.  Singleton 
V.  Benton,  114  Ga.  648,  40  S.  E.  811,' 

68:  181 


83 


APPEAL  AND  ERROR,  VII.  f. 


458.  Nothing  but  the  amount  is  in  ques- 
tion on  appeal,  where  the  plaintiffs  asked 
pennission  to  pay  the  amount  due,  and  the 
defendants  asked  that  they  be  required  to 
pay  the  amount  due.  Eandall  v.  National 
Bldg.  L.  &  P.  Union,  42  Neb.  809,  60  N.  W. 
1019,  29:  133 

459.  The  granting  by  the  appellate  divi- 
sion of  a  writ  of  mandamus  to  compel  a 
municipal  officer  to  perform  a  ministerial 
duty  is  not  reviewable  by  the  court  of 
appeals,  although  relator  was  not  entitled 
to  the  writ  absolutely  and  as  matter  of 
legal  right.  People  ex  rel.  Rodgers  v.  Coler, 
166  N.  Y.  1,  59  N.  E.  716,  52:  814 

460.  The  question,  what  remedy  may  be 
open  to  a  taxpayer  in  case  of  an  illegal  as- 
sessment or  over\'aluation  of  his  property, 
is  not  properly  before  the  court  upon  appeal 
from  a  decision  refusing  to  enjoin  collection 
of  the  taxes  on  the  ground  that  the  statute 
under  which  it  is  levied  is  unconstitutional. 
Nathan  v.  Spokane  County,  35  Wash.  26, 
76  Pac.  521,  65:  .3.30 

461.  On  appeal  from  an  orde.-  granting 
a  new  trial  because  of  error  of  the  court  in 
overruling  a  motion  for  a  nonsuit  on  the 
ground  that  the  contract  sued  on  was  void, 
the  sufficiency  of  the  complaint,  but  not 
the  evidence,  mav  be  considered.  Alpers  v. 
Hunt.  86  Cal.  78!^  24  Pac.  846,  9:  483 

462.  The  appellate  court  is  not  limited, 
upon  appeal  from  an  order  granting  a  new 
t/ial.  to  an  exclusive  consideration  of  the 
grounds  upon  which  the  new  trial  was  al- 
lowed, although  all  other  grounds  relied  on 
were  distinctly  overruled;  but  all  the 
grounds  embraced  in  the  motion,  excepting 
an  allegation  of  insufficiency  of  evidence  to 
justify  the  verdict,  will  be  examined,  and  the 
order  sustained  if  justified  by  any  of  them, 
irrespective  of  the  ones  mentioneil  by  the 
trial  court.  Kauffman  v.  Maier,  94  Cal.  260. 
29  Pac.  481,  18:.  124 
Errors  of  law. 

For  iMlitorial  Notes,  see  infra,  XI.  §  11. 

463.  Upon  an  appeal  from  an  order  grant- 
ing plaintiff  a  new  trial  for  error  in  giving 
instructions,  the  only  questions  open  for 
review  are  erro.s  of  law,  and  whether  or  not 
there  is  any  basis  in  the  evidence  for  a  ver- 
dict in  plaintiff's  favor.  Granev  v.  8t.  Louis, 
1.  M  &  S.  R.  Co.  157  Mo.  66<),  57  S.  W.  276. 

50:  1.53 
4(i4.  Mere  prayers  or  .solicitations  to  find 
particular  facts  "under  the  law  and  the  evi- 
dence'' do  not  present  a  question  of  law  on 
appeal.  First  Nat.  Bank  v.  Northwestern 
Nat.  Bank.  152  111.  296.  38  N.  E.  7.39.  26:  289 
465.  Refusal  of  a  request  to  hold  as  mat- 
ter of  law  that  the  judgment  should  be  for 
defendant  vinder  the  law  and  the  evidence 
presents  a  question  of  law  on  appeal.  Id. 
4fi('>.  A  ruling  tiiat.  becnuse  of  its  char- 
acter, property  alleged  to  be  employed  with- 
in the  state  by  a  corporation  sought  to  be 
subjected  to  a  frantdiise  tax  cannot  in  fact 
be  made  the  basis  of  the  assessment,  pre- 
sents a  nui'sti'  n  of  law  reviewable  by  th.; 
court  of  appeals.  People  ex  rel.  Commercial 
(able  Co.  V.  Morgan,  178  N.  Y.  4,33.  70  N'.  K. 
967,  67:  OCO 


467.  Where,  at  the  close  of  a  trial  to  a 
jury,  each  party  requests  a  peremptory  in- 
struction in  his  favor,  and  the  court  grants 
one  of  the  requests,  that  ruling  constitute* 
a  general  finding  for  the  successful  pai'ty  by 
the  court;  (jnd  the  only  questions  it  pre- 
.sents  in  an  appellate  court  are  whether  the 
finding  was  without  substantial  evidence  to 
support  it,  and  whether  there  was  error  in 
the  court;  and  the  only  questions  it  pre- 
law. Pherax  Ins.  Co.  v.  Kerr,  64  C.  C.  A. 
251,  129  Fed.  723,  66:  569- 
Pleadings. 

468.  An  apj>eal  on  the  judgment  roll  will 
present  the  question  of  the  correctness  of 
the  granting  of  a  motion  to  .st.-ike  out  an 
answer.  Gregg  v.  Groesbeck,  11  Utah,  310, 
40  Pac.  202,  .32:  266 

469.  The  refusal  to  strike  the  answer  of 
defendants  in  an  action  for  malicious  prose- 
cution will  not  be  considered  on  appeal  front 
a  judgment  sustaining  demurrers  to  and  dis- 
missing the  petition,  since,  if  the  court  be- 
low passed  on  the  question  at  all,  it  was  in 
an  irregular  wav.  Page  v.  Citizens'  Bkg. 
Co.  Ill  Ga.  73,  36  S.  E.  418,  51:46» 
Evidence. 

470.  A  question  as  to  the  competency  of 
evidence  which  cannot  affect  the  decree  will 
not  be  considfe-'ed  on  appeal,  where  there  is 
ample  proof,  imassailed,  to  justify  the  find- 
ings and  decree.  Hague  v.  Nephi  Irrig.  Co. 
16 Utah,  421,  52  Pac.  765,  41:  311 

471.  The  supreme  court  having  assumed 
jurisdiction  of  a  cause  under  La.  Const.  1898, 
art.  85,  giving  jurisdiction  in  all  ca.ses  in 
which  the  constitutionality  or  legality  of 
any  tax,  toll,  or  impost,  whatever  shall  be 
in  contest,  when  the  amount  involved  ia 
below  the  limit  of  the  appellate  jurisdiction, 
will  not,  the  question  being  one  of  the  law, 
deal  with  any  question  of  evidence  which 
does  not  appertain  strictly  thereto. 
Shreveport  v.  Prescott,  51  La.  Ann.  1895.  2(> 
So.  664,  46:  193 

f.  Decisions  in  Favor  of  Party,  or  Not  Af- 
fecting Him. 

In  party's  favor. 

472.  An  appellant  cannot  complain  of  an 
error  which  inures  to  his  benefit.  Illinoi.s 
C.  R.  Co.  V.  Decatur,  126  III.  92,  18  N.  E. 
315,  1:613 

473.  A  party  cannot  complain  of  an  error 
in  an  instruction  which  is  in  his  own  favor. 
Ilohverson  v.  St.  Louis  &  S.  R.  Co.  157  Mo. 
216,  57  S.  W.  770,  50:  8.50 

Erb  V.  Ge.man-American  Ins.  Co.  98  Iowa. 
606,  07  N.  W.  583.  40:  S4i> 

Treadwell  v.  Whittier,  80  Cal.  574,  22 
Pac.  266,  5:  498 

474.  An  inconsistency  in  the  instructions, 
due  to  the  fact  that  some  instructions  are 
more  favorable  to  one  of  the  |)arties  than 
h(!  is  entitled  to,  is  not  available  to  such 
partj'.  Hess  v.  Preferred  Masonic  Miit.  Acci. 
Asso.   112  .Mich.  196,  70  X.  W.  460.     40:  444 

475.  In  the  trial  of  (nie  charged  with  prac- 
tising niediciiu>  without  the  license  re(|uir«Hl 
by  statute,  an  instruction  which  -estricLH 
the  number  of  acts   which   the  jury   might 


APPEAL  AND  ERROR,  VII.  g,  1. 


83 


otherwise  find  the  defendant  committed  in 
violation  of  the  statute  cannot  be  com- 
plained of  by  him.  Territory  v.  Newman 
(N.  M.)    79  JPac.  813,  68:  783 

476.  One  who  relied  upon  a  former  ad- 
judication of  a  matter  cannot  complam  of  a 
decision  which  is  to  the  same  effect.  Gib- 
son V.  Gibson,  18  Wash.  489,  51.Pac.  1041, 

40:  587 

477.  The  failure  of  the  court  to  assess 
disfranchisement  as  part  of  the  punishment 
of  a  convict  is  not  error  of  which  he  can 
complain.  Miller  v.  State.  149  Ind,  607,  49 
N.  E.  894,  '  ''40:  109 
Not  affecting  him. 

See  also  infra,  852,  1188. 

478.  A  person  awarded  all  he  is  entitled 
to  out  of  a  fund  in  court  cannot  complain 
because  it  was  not  mace  payable  out  of  the 
allowance  made  to  another  claimant,  if  his 
own  claim  is  satisfied.  Farmers'  Loan  &  T. 
Co.  V.  *^anada  &  St.  L.  R.  Co.  127  Ind.  250, 
26  N.  E.   784,  11:  740 

479.  Error  in  determininji  the  amount  due 
subcontractors,  laborers,  and  material  men. 
gives  the  owner  of  the  building  no  right 
to  complain,  where  these  amounts  are  mere- 
ly deducted  from  the  aggregate  due  to  the 
original  contractor,  who  is  allowed  a  lien 
only  for  the  remainder.  Menzel  v.  Tubbs, 
51  *Minn.  364,  53  N.  W.  65.3,  17:  815 

480.  The  admission  of  a  note  in  evidence 
without  proof  of  its  execution,  when  it  was 
admitted  by  the  maker,  who  was  a  defend- 
ant, cannot  be  complained  of  on  appeal  by 
another  party  as  to  whom  the  evidence  was 
immaterial.  Wiehl  v.  Robertson,  97  Tenn. 
458,  37  S.  W.  274,  39:  423 

481.  A  creditor  liaving  only  a  general 
equitable  lien  cannot  complain  because  one 
of  the  specific  lienholde.-s  is  given  a  greater 
part  of  the  fund  than  he  is  entitled  to  as 
against  other  specific  lienholders,  where  the 
fwrnl  is  insufficient  to  satisfy  the  specific 
liens.  Farmers'  Jjoan  &  T.  Co.  v.  Canada  & 
St.  L.  R.  Co.  127  Ind.  250,  26  N.  E.  784, 

11:  740 

482.  A  concession  of  exemption  from  lia- 
bility under  certain  circumstances,  of  parties 
situated  similarly  to  defendant,  by  the  judge 
in  charging  the  jury  in  an  action  to  recover 
damages  for  injuries  .to  adjoining  prope.-ty 
by  a  manufacturing  establishment,  although 
erroneous,  is  not  ground  for  complaint  by 
defendant,  where  it  places  no  burden  on  him 
because  he  is,  at  all  events,  within  the  gen- 
eral rule,  and  not  within  the  exception. 
Robb  y.  Carnegie,  145  Pa.  324,  22  Atl.  649. 

14:  .329 

483.  One  who  directed  an  arrest  and  is 
found  guilty  of  false  imprisonment  cannot 
complain  that  the  one  who  actually  made 
the  an-est  was  found  not  guiltv.  Burroughs 
V.  Eastman,   101   Mich.   419.  59  N.  W.   817, 

24:  859 

g.  Objecbionsas  to  Which  Party  is  Estopped. 

1.  In  General. 
See  also  supra,  VTI.  f. 

484.  One  whbse  demurrer  has  been   sus- 


tained cannot,  for  the  purpose  of  sustaining 
the  judgment,  challenge  the  truthfulness  of 
the  statements  in  the  pleadings  demurred 
to.  Barnard  v.  Shirley,  135  Ind.  547,  34  N. 
E.  000,  35  N.  E.  117,  24:  568 

485.  That  a  defendant  succeeded  in  ob- 
taining a  peremptory  instruction  in  his  favor 
in  the  trial  court  upon  the  facts  Avill  not 
prevent  him  from  raising  the  question  in 
the  appellate  court  that  the  complaint  does 
not  set  up  a  cause  of  action.  Abbott  v. 
Thorne,  34  Wash.  692,  76  Pac.  302,      65 :  826 

486.  One  cannot  object  on  apjieal  to  a  pe- 
tition because  it  failed  to  make  him  a  party 
if  he  filed  an  answer  to  it  and  had  all  the 
rights  of  a  party  on  the  trial.  Belleville 
V.  Citizens'  Horse  R.  Co.  152  HI.  171,  38  N. 
E.   584,  ■  26:  681 

487.  An  appellee  cannot  complain  of  ap- 
pellant's failure  to  prove  an  alleged  contract 
as  justification,  where  the  court  prevented 
the  proof  on  the  ground  that  it  was  conced- 
ed. Benner  v.  Atlantic  Dredging  Co.  134 
N.  Y.  156,  31  N.  E.  328,  "     17:  220 

488.  A  prisoner  who  was  out  on  bail  at 
the  time  of  his  trial  cannot  be  heard  to 
complain  that  the  verdict  of  the  jury  was 
received  in  'his  absence.  Welsh  v.  State,  126 
Ind.  71,  25  N.  E.  883,  9:  664 
By  consent. 

489.  If  a  party  aceept  a  privilege  granted 
to  take  judgment,  upon  the  theory  that  all 
facts  warranting  a  more  favorable  judgment 
are  established  against  him,  he  cannot  there- 
after change  his  attitude  as  to  the  existence 
of  such  facts,  for  the  purpose  of  preventing 
a  review  of  any  question  legitimately  aris- 
ing thereon,  on  an  appeal  from  such  judg- 
ment. Hildebrand  v.  American  Fine  Art  Co, 
109  Wis.  171,  85  N.  W.  268,  53:  826 

490.  A  defendant  in  attachment  who  ap- 
pears in  open  court  and  consents  that  judg- 
ment may  be  entered  for  the  full  sum  de- 
manded cannot  on  appeal,  where  the  declar- 
ation, notes,  and  open  accounts  sued  on,  are 
absent  from  the  record,  without  exception 
taken  at  the  trial  on  the  ground  that  they 
were  not  filed,  assert  that  the  debt  sued  for 
wa.s  not  due,  or  that  the  notes  or  accounts 
were  not  filed.  Queen  City  Mfg.  Co.  v.  Bla- 
lack  (Miss.)  No  Off.  Rep.  18  So.  800,    31:  222 

491.  A  defendant  charged  with  murder, 
who  consents  in  open  court  that  the  case  be 
sent  for  trial  to  the  district  court  of  a 
county  that  is  not  "near  or  adjoining"  the 
county  of  original  venue,  as  provided  by  the 
North  Dakota  statute,  cannot  object  to  the 
jurisdiction  of  the  court  to  which  the  venjie 
is  changed,  after  trial.  State  v.  Pancoast, 
5  N.  D.  516,  67  N.  W.  1052,  .35:  518 

492.  As  consent  cannot  confer  jurisdiction, 
a  plaintiff  upon  whose  bill  there  is  a  final 
decree  and  adjudication  against  him  upon 
the  matter  set  up  in  the  bill  is  not  estopped 
to  assert,  upon  appeal,  that  the  court  to 
which  he  resorted  had  no  jurisdiction  of  the 
subject-matter.  Freer  v.  Davis,  52  W.  Va. 
1,  43  S.  E.  164.  59:  556 
By  obtaining  similar  ruling. 

See  also  infra,  903,  926. 

493.  An  error  in  instructions  cannot  i^ 
complained  of  by  a  party  who  subsequently 


84 


APPEAL  AND  ERROR,  VII.  g,  2,  h. 


asks  and  obtains  the  same  instructions. 
Cicero  &  P.  Street  R.  Co.  v.  Meixner,  160 
111.320,  31:331 

Queen  City  Mfg.  Co.  v.  Blalack  (Miss.) 
No  Off.  Rep.  18  So.  800.  31:  222 

494.  The  use  of  certain  language  in  an 
instruction  cannot  be  complained  of  on  ap- 
peal, whe/e  appellant,  in  its  request  for  in- 
structions, used  similar  language.  Kansas 
City  V.  Orr,  62  Kan.  61,  61  Pae.  397, 

50:  783 

495.  One  who  has  proved  certain  state- 
ments by  his  own  witnesses  cannot  object 
to  proof  of  the  same  statements  by  wit- 
Hesses  for  the  other  party.  Modem  Wood- 
men Acci.  Asso.  V.  Shryock,  54  Neb.  250,  74 
N.  W.  607,  39:  826 

496.  When  one  attacking  a-  patent  to  a 
mining  location  is  permitted,  against  the 
objection  of  his  adversary,  to  go  behind  the 
patent  and  introduce  evidence  as  to  the  pri- 
ority of  location,  he  cannot  complain  if  his 
adversa/y  is  permitted  to  introduce  evidence 
showing  that  his  own  location  is  the  prior 
one.  Jefferson  Min.'  Co.  v.  Anchoria-Leland 
Min.   &  Mill  Co.    (Colo.)    75  Pac.   1070, 

64:  925 

2.  By  Requesting  or  Obtaining  Ruling  or 
I  Decision. 

497.  A  partj'  cannot  complain  on  appeal 
of  a  ruling  which  he  procured  to  be  made. 
Norwegian  Plow  Co.  v.  BoIIman,  47  Neb. 
186,  66  N.  W.  292,  31:  747 

498.  A  party  cannot  on  appeal  insist  on 
error  committed  at  his  own  instance,  or  con- 
trary to  his  express  stipulations  upon  whieh 
the  lower  court  was  induced  to  act.  Chicago 
&  N.  W.  R.  Co.  V.  West  Chicago  Park  Comrs. 
151  111.  204,  37  N.  E.  1079,  25:  300 

499.  It  is  too  late  to  say  that  a  decree  for 
performance  of  a  contract  is  not  responsive 
to  pleadings,  where  for  three  years  the  com- 
plainant has  placed  itself  in  the  attitude 
of  asking  for  such  a  decree,  and  has  never 
dismissed  its  bill  or  withdrawn  its  prayer; 
but  any  formal  defect  in  this  particular  is 
subject  to  amendment,  even  in  fhe  appellate 
court.  National  Waterworks  Co.  v.  Kansas 
City,  27  U.  S.  App.  165,  10  C.  C.  A.  653,  62 
Fed.  853,  27:  827 

500.  An  accused  cannot  complain  that  a 
view  by  the  jury  was  had  in  his  absence 
and  without  the  presence  of  the  judge, 
wtere  it  was  taken  on  his  motion  and  with- 
out any  request  to  be  present  or  any  objec- 
tion made  by  him,  although  he  knew  it  was 
to  be  taken  without  the  presence  of  the 
judge.  State  v.  Hartley,  22  Nev.  342,  40 
Pac.  372,  '  28:  33 

501.  Where  defendants,  separately  indict- 
ed, have  their  cases  consolidated  on  their 
own  motion,  they  cannot,  after  trial  and  con- 
victions upon  appeal,  complain  of  such  con- 
solidations. Parker  v.  People,  13  Colo.  155, 
21  Pac.  1120,  4:  803 
Pleading. 

502.  One  who  submits  a  pleading  as  a 
demurrer  cannot  complain  of  the  action  of 
the  court  in  treating  it  as  such.  Citizens' 
Nat.  Bank  v.  Gentry,  111  Ky.  206,  63  S.  W. 
464,  757,  56:  C73 


503.  A  defendant  cannot,  on  appeal,  insist 
that  his  answer  was  bad,  for  the  purpose  of 
showing  error  in  refusing  him  the  closing 
argument,  if,  after  the  overruling  of  a  de- 
murrer which  settled  the  law  of  the  case, 
he  denied  facts,  proof  of  which  was  neces- 
sary to  a  recoverj',  and  thereby  attempted 
to  place  the  burden  on  plaintiff.  American 
Acci.  Co.  v.  Reigart,  94  Kv.  647,  23  S.  W. 
191,  '  21:651 
Evidence. 

504.  A  defendant  in  a  criminal  case  cannot 
complain  of  error  in  the  admission  of  evi- 
dence which  he  himself  draws  out.  State 
V.  Hamey,   168  Mo.  167,  65  S.  W.  946, 

57:  846 

505.  A  party  who,  upon  cross-examining 
his  adversary,  insisted  upon  making  the  very 
proof  objected  to,  cannot  be  heard  on  appeal 
to  object  that  tlie  evidence  was  not  within 
the  legal  form  presented  by  the  pleadings. 
State  Ins.  Co.  v.  Schreck,  27  Neb.  527,  43 
N.  W.  340,        •  6:  524 

506.  An  insurer  who,  in  cross-examining 
the  assured  as  to  his  having  encumbered  the 
property,  particularly  inquired  of  him 
whether  the  encumbrance  had  been  paid  be- 
fore the  fire,  cannot  object  on  appeal  that 
the  finding  of  payment  was  not  established 
by  the  answers  of  tlhe  assured  that  they  had 
been  paid.  Id. 

507.  On  appeal  from  a  conviction  for  mur- 
der, defendant,  who  has  objected  in  the  trial 
court  to  testimony  that  it  was  impossible 
for  the  grand  jury  finding  the  indi(;tment  to 
obtain  the  name  of  the  deceased,  cannot 
complain  of  the  absence  of  proof  that  such 
is  the  case,  and  so  insist  that  the  indictment, 
charging  him  with  the  murder  of  a  person 
to  the  grand  jury  unknown,  is  at  variance 
with  the  evidence,  which  shows  the  name  of 
such  person.  Trumble  v.  Territory,  3  Wvo. 
280,  21  Pac.  1081,  6:  384 
Instructions. 

508.  A  party  cannot  on  appeal  complain 
of  an  error  in  giving  an  instruction  at  his 
own  instance  and  request.  Schmitz  v.  St. 
Louis,  L  M.  &  S.  R.  Co.  119  Mo.  256.  24  S. 
W.  472,  23:  250 

h.  Interlocutory  Matters;  Orders,  etc..  Not 
Appealed  from. 

509.  The  appellate  court  is  confined  to 
such  of  the  interlocutory  orders  made  in 
the  action  as  are  appealed  from.  Wiggins 
V.  Williams,  36  Fla.  637,  18  So.  859,    30:  754 

510.  Error  may  be  assigned  upon  an  inter- 
locutory order  which  is  continued  in  force 
by  the  final  decree,  and  involves  and  deter- 
mines a  matter  of  substantial  right.  Repub- 
lic L.  Ins.  Co.  V.  Swigert,  135  111.  150,  25  N. 
E.  680,  12:  328 

511.  An  appeal  from  a  final  decree  in  chan- 
cery brings  up  for  review  the  whole  case, 
with  all  interlocutory  orders  involving  the 
merits  of  the  controversy.  Pennineton  v. 
Todd  (N.  J.  Err.  &  App.)  47  N.  J.  Eq.  569, 
21   Atl.   297,  11:  589 

512.  Errors  in  rulings  at  a  trial  upon  a 
plea  to  the  jurisdiction  in  which  a  judgment 
of  respondeat  ouster  is  reached  are  open  up- 
on appeal  from  a  final  judgment  against  de- 


APPEAL  AND  ERROR.  VII.  i,  1.  3. 


85 


fendant,  wthout  the  necessity  of  a  separ- 
ate appeal  therefrom.  Gambrill  v.  Schooley, 
95  Md.  2C0,  52  Atl.  500,  63:  427 

513.  A  decree  establishing  and  confirming 
the  respective  interests  of  the  parties,  and 
appointing  referees  to  make  partition  of 
property,  is  not  conclusive  of  the  right  to 
have  tlie  property  divided  in  kind  rather 
than  sold,  when  presented  on  appeal  from 
a  decree  confirming  the  report  of  the  refer- 
ees. Brown  v.  Cooper,  98  Iowa,  444,  67 
N.  W.  378,  33:  61 

514.  An  appeal  by  the  owner  of  a  vessel 
from  a  decree  awarding  the  .sum  Recovered 
for  probable  loss  of  earnings  because  of  a 
collision,  to  the  insurer,  wiil  not  give  the  ap- 
pellate court  jurisdiction  to  review  the  por- 
tion of  the  decree  which  awarded  appellant 
the  amounts  recovered  for  loss  of  freight 
under  existing  contracts  and  for  loss  of  coal 
on  board.  Mason  v.  "Marine  Ins.  Co.  49  C. 
C.  A.  106,  110  Fed.  4.52,  54:  700 

515.  Where  a  suit  by  a  husband  and  wife 
to  subject  real  estate  of  her  judgment  debt- 
ors to  the  judgment,  and  a  suit  by  one  of 
the  debtors  to  have  her  property  declared 
liable  for  her  husband's  debt,  and  to  have 
a  judgmei>t  against  the  hus.band  set  off" 
against  the  wife's  judgment,  were  heard  to- 
gether, and  a  decree  made  in  both  suits  that 
the  property  was  the  wife's  separate  estate, 
an  appeal  by  'her  brought  up  both  suits  for 
veview.  Alexander  v.  Alexander,  85  Va.  353. 
7  S.  E.  335,  1 :  125 

516.  A  motion  for  new  trial  is  not  the  sole 
remedy  to  cure  an  error  in  the  amendment  of 
a  decree  of  a  probate  court  allowing  cojn- 
pensation  to  a  broker  who  bad  rendered 
services  to  an  estate,  so  as  to  make  the  al- 
lowance to  the  administrator,  J)ut  the  ques- 
tion is  open  upon  appeal  from  a  dec/ee  set- 
tling the  account  and  ordering  distribution 
of  the  estate.  Re  Willard's  Estate,  139  Ca.. 
501,  73  Pac.  240,  64:  554 

517.  A  separate  appeal  must  be  taken 
from  a  death  warrant  signed  after  judgment, 
to  bring  the  question  of  its  regularity  before 
the  appellate  court.  People  v.  Ebanks,  117 
Cal.  652,  49  Pac.  1049,  40:  269 
Pleadings. 

518.  An  order  sustaining  a  motion  to 
strike  out  a  portion  of  an  answer  is  review- 
able on  appeal  from  the  judgment,  under 
Mont.  Code  Civ.  Proo.  §  230,  which  designates 
the  orders  which  shall  be  deemed  to  have 
been  excepted  to,  and  §  306,  providing  that 
the  judgment  roll  shall  contain  all  pleadings 
and  copies  of  orders  overruling  or  sustaining 
demurrers.  Bank  of  Commerce  v.  Fuqua,  1 1 
Mont.  285,  28  Pac.  291.  14:  588 
Injunction. 

519.  Error  in  continuing  a  temporary  in- 
junction until  final  hearing  cannot  be  cor- 
rected on  appeal  from  the  final  judgment, 
where  the  trial  court  itself  dissolved  the  in- 
jimction  at  the  final  hearing.  Watkins  v. 
Dorris,  24  Wash.  636,  64  Pac.  840,  54:  199 
Contempt. 

520.  An  appeal  from  an  equity  decree  will 
not  bring  up  for  review  an  order  discharging 
a  rule  to  show  cause  why  a  party  shall  not 
be  punished  for  contempt  in  disol>eying  an 


injunction  awarded  in  the  suit.  Alderson  v. 
Kanawha  County  Ct.  Comrs.  32  W.  Va.  640, 
9   S.  E.  868,  5:  334 

i.  Discretiona/y  Matters. 

1.  In  General;  Costs;  Contempt. 

521.  There  is  no  abuse  of  discretion  on  the 
part  of  the  trial  court  in  limiting  an  abut- 
ting owner  who  sues  for  injuries  to  his  busi- 
ness by  the  unreasonable  closing  of  a  street 
to  a  period  of  three  months  after  the  street 
is  reopened  in  showing  the  difference,  in 
profits  between  the  times  wten  the  street 
was  open  and  closed.  Lund  v.  St.  Paul,  M. 
&  M.  R.  Co.  31  Wash.  286,  71  Pac.  1032, 

61 :  506 

522.  When  the  penalty  for  violation  of  a 
statute  or  ordinance  is  left  to  the  discretion 
if  the  trial  judge,  within  certain  fixed  limits, 
his  judgment  will  not  be  disturbed  upon  the 
ground  that  the  sentence  was  excessive,  if 
the  penalty  imposed  does  not  exceed  the 
limit  provided.  Fitts  v.  Atlanta,  121  (Ja. 
567,  49  S.  E.  793,  .  67:  803 

522a.  A  decision  of  the  general  terra  of 
the  supreme  court  of  New  York  refusing  a 
writ  of  mandamus  to  restore  to  the  office  of 
manager  of  a  charitable  institution  a  person 
who  alleges  himself  to  be  wrongfully  exclud- 
ed therefrom  will  not  be  reversed  by  fhe 
court  of  appeals,  where  serious  doubt  exists 
upon  the  question  of  claimant's  title  to  the 
office.  People  ex  rel.  Nicoll  v.  New  York 
Infant  Asylum,  122  N.  Y.  190,  25  N.  E.  241, 

10:  381 
Costs. 
See  also  supra,  386. 

523.  Costs  on  motion  are  regarded  on  ap- 
peal as  in  the  discretion  of  the  court  below. 
Below  v.  Robbins,  76  Wis.  600,  45  N.  W.  416, 

8:  467 
Contempt. 

524.  The  necessity  for  instituting  con- 
tempt proceedings  to  vindicate  its  authority 
in  case  of  publication  of  newspaper  articles 
calculated  to  prejudice  the  jury  in  a  pend- 
ing trial  is  for  the  trial  court,  and  will  not 
be  considered  on  appeal.  Telegram  News- 
paper Co.  V.  Com.  172  Mass.  294,  52  N.  E. 
445,  44:  169 
Rehearing. 

525.  Refusal  of  a  rehearing  is  not  review- 
able on  appeal.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  V.  Gray,  41  C.  C.  A.  535,  101  Fed. 
623,  50:  47 

2.  Continuance  or  Adjournment. 

526.  The  suspension  of  a  trial  for  a  short 
time,  against  the  protest  of  the  defendant, 
for  the  purpose  of  procuring  the  evidence  of 
an  important  witness,  is  a  matter  within 
the  discretion  of  the  trial  judge,  and  is  not 
error.  Walker  v.  State,  116  Ga.  537,  42  S.  E. 
787,  67:  426 

527.  The  denial  of  a  continuance  is  not  a 
cause  for  reversal  imless  it  was  plainly  erro- 
neous and  an  abuse  of  discretion.  State  v. 
Harrison,  36  W.  Va.  729,  15  S.  E.  982. 

18:224 


86 


APPEAL  AND   ERROR,  VII.  i.  3.  4. 


3.  As  to  Pleadings. 

528.  An  exercise  of  discretion  in  permit- 
ting a  plea  and  demurrer  to  the  whole  bill 
at  the  same  time  is  not  a  subject  of  appeal. 
Alexander  v.  Alexander,  13  App.  D.  C.  334, 

45:  »06 
Amendment. 

529.  It  is  within  the  discretion  of  the  trial 
court  to  permit  a  defendant  to  amend  his 
answer,  and  error  cannot  be  predicated  of 
it,  unless  an  abuse  of  discretion  is  shown, 
and  prejudice  resulting  therefrom.  Scherar 
V.  Prudential  Ins.  Co.  63  Neb.  530,  88  N.  W. 
687,  56:611 

530.  The  filing  of  amended  petitions,  even 
at  or  nfear  the  final  hearing  of  the  ease,  is 
entirely  within  the  discretion  of  the  trial 
court,  and  not  reviewable  on  appeal.  Cin- 
cinnati, N.  0.  &  T.  P.  R.  Co.  V.  Giav,  41 
C.  C.  A.  535,  101  Fed.  623,  50:  47 

531.  The  refusal  of  the  trial  court  to  per- 
mit an  amendment  of  a  pleading  is  not  an 
abuse  of  discretion,  btensgaard  v.  St.  Paiil 
Real-Estate  Title  Ins.  Co.  50  Minn.  429,  52 
N.-W.  910,  17:  575 

532.  Refusal  to  grant  leave  to  am(*nd  the 
complaint  so  as  to  set  up  a  new  issue,  after 
the  introduction  of  the  evidence,  is  not  re- 
viewable on  appeal.  Allen  v.  North  Des 
Moines  M.  E.  Church,  127  Iowa.  96.  102  N. 
W.  808,  69:  255 

4.  As  to  Evidence;  Witnesses. 

533.  The  practice  of  tlie  court  as  to  per- 
mitting a  paper  put  in  evidence  during  the 
examination  of  a  witness  to  be  read  by 
counsel  or  witness  is  not  reviewable  on  ap- 
peal. Press  Pub.  Co.  v.  Monroe,  19  C.  C.  a. 
429,  38  U.  S.  App.  410,  73  Fed.  196,    51:  353 

534.  The  discretion  of  the  trial  court  in 
determining  whether  a  witness  outside  the 
Btate  is  "inaccessible"  so  as  to  admit  his 
former  evidence  is  not  reviewable.  Atlanta 
&  C.  Air  Line  R.  Co.  v.  Gravitt,  93  Ga.  369, 
20  S.  E.  550.  2(5:  553 
Admission  of  evidence. 

535.  The  sufficiency  of  the  verification  of 
photographs  to  pe/mit  their  admission  in 
evidence  is  not  a  mater  of  exception.  Van 
Houten  v.  Morse,  162  Mass.  414,  38  N.  E. 
705,  26:  430 

536.  Permitting  the  introduction  in  evi- 
dcn.-e  of  records  of  deeds  to  prove  title  to 
real  estate  in  ejectment,  instead  of  requir- 
ing the  production  of  the  original  deeds, 
rests  largely  in  the  discretion  of  the  court, 
which  will  not  be  overruleil  unless  the/e 
has  been  an  abuse  of  discretion.  Rupert  v. 
I'enner,  35  Neb.  587,  53  N.  W.  598.  17:  »24 
Exclusion  of  evidence. 

5:57.  Exclusion  of  questions  with  reference 
if)  ])rior  ailiiieiits  of  the  i)lainti(l'  in  an  ac- 
tion for  personal  injuries  is  within  the  dis- 
cretion of  the  court,  where  a  physician  who 
has  treated  the  plaintiff  has  testified  that  he 
docs  not  think  there  was  any  connection  be- 
tween prior  ailments  and  the  condition  after 
the  accident,  although  it  might  be  possible 
that  other  physicians,  if  examined,  would 
have  a  dillercnt  opinion.  Boomer  v.  Wilbur, 
17(;  Mass.  482.  57  N.  E.  1004.  53:  172 


538.  It  is  within  the  discretion  of  the 
court  to  exclude  the  question  "whether  the 
sheathing  of  the  church  was  burned  by  the 
use  of  the  torch,"  in  a  suit  for  insurance  on 
a  building  burned  while  the  paint  was  being 
burned  off  by  such  a  torch.  First  Cong. 
Church  V.  Holyoke  Mut.  F.  Ins.  Co.  158  Mass. 
475,  33  N.  E.  572,  19:587 

539.  It  is  not  an  abuse  of  discretion  which 
will  warrant  a  reversal  of  the  judgment  of 
a  trial  judge,  to  refuse  to  permit  a  witness 
to  be  asked  on  cross-examination  as  to  what 
he  testified  to  in  a  former  action  on  the  sub- 
ject of  his  own  ar/est  and  conviction  on 
criminal  charges,  where  he  has  denied  both 
that  he  ever  was  arrested  and  that  he  ad- 
mitted in  the'  former  suit  that  he  had  been. 
Helwig  V.  Laschowski,  82  Mich.  619,  46  N.  W. 
1033,  10:  378 
View  by  jury. 

540.  I'he  refusal  to  send  the  jury  to  view 
premises  at  a  particular  time  during  the 
trial  and  before  the  close  of  the  testimony 
cannot  be  complained  of,  where  the  place 
had  been  fully  described,  and  they  we/e  sent 
to  make  the  view  at  the  close  of  the  testi- 
mony. Kentucky  C.  R.  Co.  v.  Smith,  93 
Ky.  449,  20  S.  W.  392,  .  18:  63 

541.  The  refusal  to  allow  a  jury  to  view 
water  in  a  pond  and  then  after  it  has  been 
passed  through  filters,  on  an  issue  as  to  its 
pollution,  is  within  tlie  discretion  of  the 
court,  and  not  subject  to  review.  Rudolph  v. 
Pennsylvania  S.  V.  R.  Co.  186  Pa.  541,  40 
Atl.  1083,  47:  782 
Tests. 

542.  Refusal  to  permit  a  test  of  the  rate 
of  'speed  at  which  editors  can  digest  re- 
ported cases,  when  ofl"ered  on  the  hearing  of 
a  copyright  case  to  meet  the  contention 
that  the  /ate  at  which  they  had  worked  in- 
dicated unfair  use  of  syllabi,  is  not  error, 
since  the  matter  is  largely  within  the  dis- 
cretion of  the  trial  court.  West  Pub.  Co. 
v.  Lawvers'  Ck)-Operative  Pub.  Co.  51  U.  S. 
App.  210,  79  Fed.  756.  25  C.  C.  A.  648, 

35:  400 
Rev'g  64  Fed.  360,  25:  441 

Competency  of  witness;    experts. 

543.  The  examination  of  an  infant  witness 
as  to  his  competency  must  be  left,  necessar- 
ily, to  the  discretion  ot  the  trial  judge;  and 
this  discretion  will  not  be  reviewed  by  an 
appellate  court  unless  the  error  of  the  judge 
be  palpable!  and  plain  and  amount  to  an 
abuse  of  his  discretion.  Uttermohlen  v. 
Bogg's  Run  Min.  &  Mfg.  Co.  50  W.  Va.  457, 
40  S.  E.  410,  55:  911 

544.  The  decision  of  a  trial  judge  in  ad- 
mitting a  witness  to  testify  as  an  expert 
will  not  be  reviewed  unless  it  is  clearly 
shown  to  have  been  based  on  incompetent 
or  insufficient  evidence.  State  v.  Main,  69 
Conn.  123,  37  Atl.  80,  3(5:  623 

545.  The  question  whether  a  witness  has 
such  special  knowledge  or  experience  as  to 
qualifj-  him  to  give  opinion  evidence  is  a 
question  of  fact  for  the  determin.ation  of  the 
trial  court,  whose  finding  is  not  reviewable 
on  writ  of  error,  if  there  be  any  legal  evi- 
dence to  support  it.    Burns  v.  Delaware  &  .d. 


APPEAL  AND  ERROR.  VII.  i,   5,  6. 


87 


Teleg.  &  Tcleph.  Co.  (N.  J.  Err.  &  App.) 
70  N.  J.  L.  745,  59  Atl.  220,  592,  67:  956 
Hypothetical  questions. 

546.  J'lie  rejection  of  a  hypothetical  ques- 
tion involving  as.siimptions  concerning  which 
no  evidence  has  been  offered  is  not  ground 
of  error.  Porter  v.  Ritch,  70  Conn.  2.35,  39 
Atl.  109,  ;W:  353 
Leading  questions. 

8ee  al.-^o   infra,   933. 

547.  The  admis.sion  of  a  leading  question 
<annot  be  reviewed  on  appeal.  T.-enton 
Pass.  R.  Co.  V.  Cooper  (N.  .J.  Err.  &  App.) 
CO  N.  J.  L.  219,  37  Atl.  730,  .,  38:  637 

548.  The  permission  of  leading  questions 
is  much  in  the  discretion  of  the  trial  court, 
and  a  case  will  not  be  reversed  on  that 
account  unless  the  discretion  was  abused. 
(Joudv  V.  Werbe.  117  Ind.  154.  19  N.  E.  764, 

3:  114 
Cross-examination. 
,See  also  supra,  539. 

549.  The  court  on  appeal  will  not  interfere 
with  the  discretion  of  the  trial  court  as  to 
the  extent  of  the  cross-examination  of  wit- 
nesses, where  a  just  verdict  has  been  ren- 
<lered  and  the  testimony  objected  to  could 
Jiot  have  improperly  affected  the  result. 
Lafavette  Bridge  Co.  v.  Ol&en,  47  C.  C.  A. 
:167,  "l08  Fed.  335,  .  54:  33 
Credibility  of  witness. 

55(1.  The  decision  of  the  trial  court  as  to 
the  credibility  of  witnesses  will  not  be  re- 
viewed on  api)eal.  Joseph  v.  Macowskv,  96 
CaJ.  5 IS.  31  Pac.  914,  19:53 

Committing  witness  for  perjury. 

551.  (Committing  to  jail  one  of  the  wit- 
nesses for  defendant  in  the  presence  of  the 
jury,  on  accotint  of  alleged  false  evidence,  is 
•within  the  discretion  of  the  judge,  for 
which  no  legal  error  can  be  assigned.  Peo- 
ple V.  Haves,   140  N.  Y.  484,  35  N.  E.  951, 

23:  83U 

5.  Injunction;  Receivers. 

552.  The  grant  of  an  injunction  will  not 
be  disturl)e<l  on  appeal,  unless  the  discretion 
of  the  court  was  abused.  Piatt  Bros.  &  Co. 
V.  Watifrbury,  72  Conn.  531,  45  Atl.  154, 

48:  691 

553.  The  decision  of  the  lower  court  in 
Ti'fusing  to  grant  an  injunction  on  the 
ground  of  fraud  against  creditors  will  not 
l)e  reviewed  on  appeal.  Powell  v.  Kelly.  82 
il-A.   1,  9  S.  E.  27S,  3:  139 

554.  The  granting  of  a  preliminary  in- 
junction in  an  action  to  enjoin  the  abstrac- 
tion of  ore  in  alleged  violation  of  plaintiff's 
mining  claim  is  so  largely  a  matter  of  dis- 
•cretion  that  it  will  be  sustained  upon  appeal, 
where  there  has  been  a  reasonable  showing 
made  in  support  of  the  application  in  the 
<^ourt  below.  Parrot  Silver  &  C.  Co.  v. 
Helnze,  25  Mont.  1.39,  64  Pac.  326,      53:  491 

555.  When  the  matter  in  dispute  is  one 
•of  law  merely,  the  Michigan  supreme  court 
will  veview  the  action  of  a  circuit  judge  in 
granting,  an  injunction.  Ionia.  E.  &  B. 
Tanners'  Mut.  F.  Ins.  Co.  v.  Ionia  Circuit 
Judge,  100  Mich.  606,  59  N.  W.  250,    32:  481 

550.  The    rule    that    the   dissolving  of   an 


injunction  is  discretionary,  and  that  the  re- 
fusal of  the  court  below  to  dissolve  it  will 
not  be  disturbed  unless  the  discretion  is 
abused,  does  not  apply  to  cases  involving 
questions  of  law  arising  upon  the  face  of  the 
pleading.  Burlington,  C.  R.  &  1^.  R.  Co.  v. 
Dey,  82  Iowa,  312,  48  N.  W.  98,  12:  430 

Receivers.  . 

557.  The  sufficiency  of  a  complaint  on  an 
appeal  from  an  interlocutory  order  appoint- 
ing a  receiver  is  reviewable  so  far  as  it  re- 
lates to  the  statement  of  a  cause  of  action 
for  the  appointment  of  the  receiver.  Su- 
preme Sitting  O.  of  I.  H.  v.  Baker,  134  Ind. 
293,  33  N.  E.  1128,  20:  210 

558.  The  exercise  of  discretion  in  the  ap- 
pointment of  a  receiver  will  not  be  inte.-- 
fered  with  on  appeal,  unless  the  discretion 
is  abused,  if  the  evidence  is  conflicting. 
Simmons  Hardware  Co.  v.  Waibel,  1  S.  D. 
488,  47  N.  W.  814,  11:  267 

6.  Conduct  of  Trial;  Jury. 

559.  The  decision  of  the  trial  court  as  to 
impaneling  a  jury  to  inquire  into  the  san- 
ity of  a  prisoner  will  not  be  reversed,  if 
at  all,  unless  it  manifestly  appears  that  the 
decision  was  wrong  or  that  the  cou.'t  abused 
its  discretion.  State  v.  Harrison,  36  W.  Va. 
729,  15  S.  E.  982,  18:  224 

560.  In  an  action  for  the  recovery  of  mon- 
ey, what  questions  of  fact  shall  be  submitted 
to  the  jurj'  for  specific  findings  is  in  the 
discretion  of  the  trial  court.  Stensgaard  v. 
St.  Paul  Real-Estate  Title  Ins.  Co.  50  Minn. 
429,  52  N.  W.  910,  17:  575 
Summoning  of  jury. 

561.  Permitting  an  officer  who  had  heard 
the  evidence  on  a  former  trial  of  accused, 
and  had  formed  an  opinion  as  to  his  guilt, 
to  summon  the  jury  for  the  new  trial,  is 
not  such  an  abuse  of  discretion  as  to  re- 
quire a  new  trial,  where  it  affirmatively  ap- 
pears that  he  had  no  actual  bias  or  prejudice 
against  accused,  and  there  is  nothing  to 
show  that  he  used  his  office  to  the  detri- 
ment of  the  prisoner.  State  v.  Hall,  16  S. 
D.  6,  91  N.  W.  325,  65:  151 
Selection  of  jury. 

562.  No  exception  is,  by  the  tdaho  stat- 
ute, allowed  to  an  order  overruling  a  chal- 
lenge to  a  juror  for  general  cause.  Terri- 
tory V.  Evans,  2  Id.  651,  23  Pac.  232,     7:  646 

563.  The  decision  of  the  trial  court  as  to 
the  qualification  of  juimrs  may  be  reviewed 
on  appeal  when  it  raises  legal  questions. 
People  V.  Mol.  137  MiCh.  692,  100  N.  W. 
913,  68:  871 

564.  The  discretion  of  the  trial  judge  to 
determine  partiality  or  impartiality  in  a 
ju/y  is  subject  to  review  on  appeal  under  a 
constitutional  guarantj'  to  the  accused  of  a 
trial  bv  an  impartial  jurv.  State  v.  Stentz, 
30   Wa'sh.    134,  70  Pac.  241,  63:  807 

565.  A  determination  of  the  trial  court 
that  a  jurror  is  not  disqualified  by  forming 
and  expressing  an  opinion  basea  on  news- 
paper accounts,  because  the  court  is  satis- 
lied,  as  the  statute  requires,  that  he  can 
render  a  fair  and  impartial  verdict,  is  sub- 
jfect  to  review  on  appeal,  where  he  is  held 


63 


APPEAL  AND  ERROR,  VIL  i,  7. 


competent  after  expressing  a  fixed  opininon 
as  to  the  prisoner'a  guilt.  Coughlin  v.  Peo- 
ple, 144  111.  140,  33  N.  E.  1,  19:  57. 

566.  The  decision  of  the  trial  court  on  the 
compet€ncy  of  a  juror  in  a  criminal  case, 
after  full  investigation,  is  one  of  mixed  law 
and  fact,  and  should  not  be  disturbed  by  the 
appellate  court  unless  there  be  clear  ana 
manifest  error  prejudicing  the  defendant. 
Garlitz  v.  State,  71  Md.  293,  18  Atl.  39, 

4:  601 

567.  In  a  criminal  prosecution  the  deci- 
sion of  the  trial  judge  on  tiie  question  of 
bias  of  a  juror  is  not  reviewable,  except  in 
the  absence  of  any  evidence  to  support  it; 
in  which  case  it  is  an  error  of  law  to  which 
an  exception  lies.  People  v.  McQuade,  110 
N.  Y.  284,  18  N.  E.  156,  1:  273 

State  V.  Chapman,  1  S.  D.  414,  47  N.  W. 
411,  10:  432 

568.  Refusal  to  permit  defendant's  counsel 
to  ask  a  juror  on  his  voir  dire  to  what  ex- 
tent he  had  read  about  tne  case  in  tihe  news- 
papers, after  the  statutory  questions  had 
been  exhausted,  is  not  an  abuse  of  discre- 
tion requiring  reversal,  if  there  is  nothing 
to  show  what  counsel  had  any  reasonable 
expectation  of  proving.  Com.  v.  Trefefchen, 
157  Mass.  180,  31  N.  E.  961,  24:  235 

569.  A  ruling  admitting  a  juror  whose 
declaration  that  a  present  opinion  would 
not  influence  him  is  not  absolute ;  if  excepted 
to,  it  may  be  reverserd  on  appeal.  People  v. 
McQuade,  110  N.  Y.  284,   18  N.  E.  156, 

1:  273 

570.  Under  N.  Y.  Code  Crim.  Proc.  §  455, 
subd.  2,  exceptions  lie  to  erroneous  rulings 
of  the  trial  court  excluding  jurors,  and  are 
reviewable  on  appeal.  Id. 
Discharge  of  jury;  withdrawal  of  juror. 
As  to  Withdrawal  of  Juror  Generally,  see 

Trial,  I.  e. 
371.  The  discretion  of  the  trial  judge  in 
discharging  the  jury  on  a  criminal  trial  be- 
fore they  render  their  verdict  is  judicial  and 
subject  to  review.  State  v.  Nelson,  19  R.  I. 
467,  34  Atl.  990,  33:  559 

572.  The  denial  of  a  motion  to  withdraw  a 
juror  cannot  be  reviewed  on  appeal  if  no 
reason  for  the  motion  appears  in  the  record. 
Smith  V.  Times  Pub.  Co.  178  Pa.  481,  36  Atl. 
296,  35:  819 
Election  between  counts. 

As  to  Election  between  Counts  Generally, 
see  Trial,  I.  b. 

573.  The  discretion  of  the  trial  court  in 
refusing  to  require  the  state  to  elect  upon 
which  count  of  an  information  it  will  pro- 
ceed in  a  criminal  case,  where  each  count 
charges  a  separate  defendant  as  principal 
and  the  others  as  accessories,  will  not  be 
reviewed  on  appeal,  where  under  the  stat- 
utes, all  the  defendants  might  be  regarded 
as  principals,  and  the  various  counts  in  the 
information  merely  charge  that  the  crime 
had  been  committed  by  defendants  either 
as  principals  or  as  accessories,  in  such  a  way 
that  the  charge  might  be  stated  according 
to  the  facts  which  the  testimony  should  es- 
tablish. Tuttle  V.  People,  33  Colo.  ^3,  79 
Pac.  1035,  70:  3^ 


Remarks  of  counsel. 

Aa  to  Argument  of  Counsel  Generally,  see- 
Trial,  I.  d. 

574.  Remarks  of  counsel  are  not  assign- 
able for  error,  being  under  the  discretionary 
control  of  the  court  below,  Smith  v.  Times 
Pub.  Co.  178  Pa.  481,  36  Atl.  296,       35:  819' 

575.  The  appellate  court  will  not  declare 
remarks  of  counsel  for  the  state  in  address- 
ing the  jury  in  a  criminal  case  to  be  error,, 
in  the  absence  of  a  clear  abuse  of  the  dis- 
cretion vested  in  the  trial  court  to  control 
counsel.  State  v.  Pancoast,  5  N.  D.  516,  67 
N.  W.  1052,  35:  518- 
Nonsuit. 

576.  The  refusal  of  the  court  to  grant  a. 
nonsuit  is  not  assignable  as  error.  Kelly  v. 
Bennett,   132  Pa.  218,   19  Atl.  69,         7:  120- 

577.  The  relieving  of  a  plaintiff  from  a 
stipulation  submitting  the  case  on  a  motion 
for  nonsuit,  and  allowing  him  to  file  an 
amended  complaint,  is  discretionary,  and  not 
reviewable  on  appeal.  Robinson  v.  Exempt 
Fire  Co.  103  Cal.  1,  36  Pac.  955,  24:  715- 
Refusal  to  reopen  case. 

As  to  Order  of  Proof  Generally,  see  Trials 
20-26. 

578.  The  refusal  to  open  the  case  after 
the  trial  had  closed,  on  the  ground  of  thes- 
discovery  of  important  testimony,  is  not 
error  where  the  witnesses  had  been  previous- 
ly summoned,  except  one  who  was  an  em- 
ployee of  the  party  moving  to  open  the- 
case.  Kentucky  C.  R.  Co.  v.  Smith,  93  Ky. 
449,  20  S.  W.  392,  18:  6$ 

7.  Vacation  of  Judgment  or  Verdict;  New- 
Trial. 

579.  A  decision  upon  a  motion  for  a  new- 
trial  is  not  the  subject  of  review  in  a  Fed- 
eral appellate  court.  Morning  Journal  Asso. 
V.  Rutherford,  1  U.  S.  App.  296,  2  C.  0.  A. 
354,  51  Fed.  513,  16:  803; 

580.  If  substantial  justice  has  been  denied 
by  refusal  of  a  new  trial  in  a  criminal  case, 
the  appellate  cojirt  will  not  hesitate  to  -re- 
verse the  ruling.  State  v.  Stowe,  3  Wash. 
206,  28  Pac.  337,  14:  60» 

581.  The  exercise  by  the  trial  court  of  ita 
discretion  as  to  the  setting  aside  of  a  ver- 
dict as  being  contrary  to  the  clear  weight 
of  the  evidence  will  not  ordinarily  be  re- 
viewed on  appeal.  Hancock  v.  Western  U. 
Teleg.  Co.  137  N.  C.  497,  49  S.  E.  952, 

69:  403: 

582.  The  granting  of  a  new  trial  for  new- 
ly discovered  evidence  is  so  peculiarly  a  mat- 
ter within  the  discretion  of  the  trial  court 
that  it  will  not  be  interfered  with  on  appeal^ 
save  where  a  clear  abuse  of  judicial  discre- 
tion is  made  out.  Chambliss  v.  Hass,  125 
Iowa,  484,  101  N.  W.  153,  68:  126 

583.  The  discretion  of  the  court  in  setting 
aside  a  verdict  for  inadequacy  of  damages- 
is  not  reviewable  on  appeal.  Benton  v.  Col- 
lins, 125  N.  C.  83,  34  S.  E.  242,  47:  3? 

584.  The  refusal  of  a  new  trial  on  the 
ground  of  fraud  in  the  conduct  of  the  case- 
and  corruption  of  the  jury  will  not  be  in- 
terfered with  on  appeal  in  the  absence  of 
anything  to  show  that  the  trial  court  abused 


APPEAL  AND  ERROR.   VII.  j.  1—3, 


8» 


Its  discretion.    Callihan  v.  Washington  Wa- 
ter Power  Co.  27  Wash.   154,  67  Pac.  607, 

56:  772 
Vacation  of  judgment. 

585.  An  application  made  under  N.  D.  Rev. 
Codes  1899,  §  5298,  to  vacate  a  judgment  en- 
tered by  default  is  addressed  to  the  sound 
judicial  discretion  of  the  trial  court,  and  in 
such  eases  the  order  of  the  court  below  will 
not  be  disturbed  unless  it  clearly  appears 
that  the  same  involves  an  abuse  of  discre- 
tion. Wheeler  v.  Castor,  11  N.  D.  347,  92  N. 
W.  381,  ,     61:  746 

586.  The  vacation  of  a  judgment  by  de- 
fault at  the  term  during  which  it  was  ren- 
dered will  not  be  reversed  unless  the.^e  is  a 
clear  abuse  of  discretion;  and  a  stronger 
showing  of  abuse  must  be  *made  than  in 
cases  where  a  trial  on  the  merits  is  denied. 
Bigler  v.  Baker,  40  Neb.  325,  58  N.  W.  1026. 

24:  255 

j.  Questions  Not  Raised  Below. 
1.  In  General. 

Necessity  and  Sufficiency  of  Exceptions  Be- 
low, see  supra,  V. 

Mode  of  Raising  Objection  below,  see  supra, 
V.  d. 

587.  Objections  not  raised  by  the  briefs 
in  the  Illinois  appellate  court  cannot  be  re- 
newed Oa  made  lor  the  first  time  in  the  su- 
preme court.  Fidelity  &  0.  Co.  v.  Water- 
man, 161  111.  632,  44  N.  E.  283,  32:  654 

588.  Where  no  objection  to  the  clerk  as  a 
custodian  of  a  note  was  made  in  the  court 
beiow,  it  cannot  be  raised  on  appeal.  Brandt 
V.  Allen,  76  Iowa,  50,  40  N.  W.  82,       1 :  653 

589.  Objections  to  the  report  of  a  com- 
missioner appointed  to  purge  the  usury 
from  bills  of  exchange  cannot  be  taken  for 
the  first  time  on  appeal.  Taylor  v.  Citizens' 
Sav.   Bank,    114   Ky.   577,  71   S.   W.   520, 

61:  90 

590.  The  question  of  the  rate  at  which 
executors'  commissions  should  be  computed 
cannot  be  raised  for  the  first  time  on  ap- 
peal. Re  Bicker's  Estate,  14  Mont.  153,  35 
Pac.  960,  29:  622 

591.  The  constitutionality  of  a  statute 
making  the  thiixl  verdict  conclusive  as  to  the 
amoimt  of  damages  cannot  be  attacked  for 
the  first  time  on  appeal.  Illinois  C.  R.  Co. 
v.  Minor,  CO  Miss.  710,  11  So.  101,  16:  627 
Irregularities  in  proceedings. 

592.  Failure  of  the  clerk  to  indorse  the 
word  "Filed"  upon  an  affidavit  is  a  mere  ir- 
regularity which  may  be  amended  at  any 
time  l)efore  or  during  trial,  and  objection  to 
it  cannot  be  made  for  the  first  time  on  ap- 
peal. State  V.  Coleman,  186  Mo.  151,  84  S. 
W.  978,  69:  381 

593.  Objections  to  the  impaneling  or  or- 
ganization of  a  grand  jury  on  the  ground  of 
irregularities,  cannot  be  ma<le  for  the  first 
time  in  the  appellate  court.  They  must  be 
taken  advantage  of  by  plea  before  trial  or 
they  are  waived.  Parker  v.  People,  13  Colo. 
Ida,  21  Pac.  1120,  4:  tt03 


Remarks  of  counsel. 

Sufficiency   of   ICxception  or  Objection,   see- 
supra,  285,  286. 
Necessity  for  Exceptions,  see  supra,  335,  336. 

594.  Failure  to  object  to  remarks  of  coun- 
sel in  argument  to  the  jury  will  be  regarded 
as  a  waiver  of  any  irregularity  in  them» 
Cutzman  v.  Clancy,  114  Wis.  589,  90  N.  W. 
1081,  58:  74* 

595.  If  the  trial  court  sustains  the  objec- 
tion of  the  losing  party  'to  remarks  by  the 
opposing  counsel  in  argument  to  the  jury,  he 
cannot  complain  on  appeal  that  they  were 
not  ruled  out  if  he  did  not  ask  that  they 
should  be.  Illinois  C.  R.  Co.  v.  Beebe,  174 
111.  13,  50  N.  E.  1019,  43:  210 

2.  Jurisdiction. 

Waiver  of  Objection  to,  by  Pleading  or  Fail- 
ure to  Plead,  see  Pleading,  60-63. 
See  also  infra,  670,  671. 

596.  Want  of  jurisdiction  will  be  i-ecog- 
•nized  by  the  court,  even  if  no  objection  is 
made.  State  ex  vel.  Perine  v.  Van-Beek,  87 
Iowa,  569,  54  :N.   W.   525,  19:622. 

597.  The  question  of  the  jurisdiction  of  a 
county  court  to  try  a  crinnnal  prosecution 
which  it  has  certified  to  the  circuit  court, 
after  the  refusal  of  the  latter  court  to  take 
jurisdiction,  cannot  be  raised  for  the  first 
time  on  appeal.  Long  v.  People,  135  111.  435, 
25  N.  E.  851,  10.:  48 

598.  The  objection  that  there  was  a  plain 
and  adequate  remedy  at  law  cannot  be  taken 
in  an  equity  suit  for  the  first  time  on  ap- 
peal. Corev  v.  Sherman,  96  Iowa,  114,  bO 
N.  W.  232,  ■(34  N.  W.  828,  32;  490 

599.  An  objection  that  the  cause   shomd 
not  be  tried  as  an  equitable  action  will  not 
be  considered  when  raised  for  the  first  time 
on   api>eal.     Adams   County   v.   Hunter,   78^' 
Iowa,  328,  43  N.  W.  208,  6:  615- 

3.  Causes  of  Action  or  Defense;  New  The- 
ories. 

600.  Objectijjus  to  the  litigation  of  a  ques- 
tion presented  by  the  pleadings  will  not  b& 
considered  when  first  made  on  appeal. 
Greene  v.  Greene,  49  Neb.  546,  68  N.  W. 
947,  34:  lia 

601.  The  objection  that  the  facts  foimd 
show  that  plaintifis  have  no  cause  of  action 
cannot  be  raised  on  appeal  under  Conn.  Gen.^ 
Stat.  §  1135,  where  the  appellant  did  not 
make  any  claim  of  that  kind  in  the  court 
below  and  does  not  make  it  in  his  assign- 
ments of  error,  but  merely  presents  it  in  hi» 
brief.  Gustafsou  v.  Rusteraeyer,  70  Conn. 
125,  39  At).  104,  39:  644 

602.  A  fatal  objection  either  to  a  cause  of 
action  or  to  a  defense,  when  it  is  shown  by 
the  record  ajid  could  not  have  been  obviated 
if  raised  in  the  court  below,  may  be  raised 
for  the  f'st  time  on  appeal.  Wilson  v. 
Alabama  G.  S.  R.  Co.  77  Miss.  714,  28  So. 
567.  52 :  ,357 

603.  That  a  statute  providing  for  licens- 
ing public  warehousemen  p.'ovides  an  effi- 
cient remedy  for  violation  of  their  duty  can- 
not be  raised  for  the  first  time  on  appeal  i» 


90 


APPEAL  AND  ERROR,  VII.  j.  3. 


an  equity  case  to  enjoin  them  from  using 
their  privileges  to  suppress  competition. 
Central  Elevator  Co.  v.  People  ex  rel.  Mo- 
loney, 174  111.  203,  5L  N.  E.  254,       43:  t»o8 

6(k.  The  correctness  of  the  form  of  ac- 
tion to  hold  a  broker  liable  for  assisting 
the  treasurer  of  a  corporation  in  misappro- 
priating its  securities  cannot  be  raised  for 
the  first  time  on  appeal,  where  all  questions 
pertaining  to  the  liability  were  tried  in 
the  form  of  action  auopted.  Jennie  Cla^k- 
son  Home  for  Children  v.  Missouri,  K.  &  T. 
E.  Co.  182  N.  Y.  47,  74  N.  E.  571,  70:  787 
Unconstitutionality  of  statute. 
See  also  supi'a,  591. 

605.  The  unconstitutionality  of  a  statute 
cannot  be  set  up  for  the  first  time  on  ap- 
peal, as  a  ground  of  attack  on  instructions 
which  were  given  «n  other  issues.  Ross  v. 
Hawkeye  Ins.  Co.  93  Iowa.  222,  61  N.  W. 
a.-)2,  34:  460 

Remoteness  of  damages. 

(iOG.  An  objection  that  damages  are  too 
n-niote,  to  which  no  allusion  was  made  on 
the  trial,  will  not  be  considered  on  appeal. 
O'Neill  V.  New  York.  0.  &  W.  R.  Co.  115 
N.  Y.  .'^79,  22  N.  E.  217,  5:  591 

Res  judicata. 

607.  A  question  of  res  judicata  cannot  be 
raised  on  appeal  Wiwn  it  is  not  presented  by 
the  record.  Consolidated  Coal  Co.  v.  Peers, 
166  III.  361,  46  N.  E.  1105,  38:  624 
Laches. 

608.  The  delay  of  a  relator  in  instituting 
proceedings  by  mandamus  cannot  be  urged 
for  the  first  time  in  the  appellate  court. 
Rav  v.  Wilson,  29  Fia.  ,342.  10  So.  613, 

14:  773 
Attachment. 

609.  The  objection  that  the  groimd  of  an 
attachment  sued  oiit  on  a  large  demand  con- 

.  sisting  of  many  items,  some  of  which  are 
due  and  others  not,  is  maintainable  only  as 
to  a  few  of  them  as  representing  debts 
fraudiilently  contracted,  must  be  made  in 
the  trial  court  to  be  available  on  appeal. 
Queen  City  Mfg.  Co.  v.  Blalack  (Miss.)  No. 
Ofi".  Rep.  "18  So.   800,  31 :  222 

Liens. 

610.  Objection  that  liens  cannot  be  liti- 
gated in  an  action  to  determine  adverse 
estates  and  interests  cannot  be  raised  for 
the  first  time  on  appeal,  where  such  liens 
have  been  passed  \ipon  without  objection. 
Power  V.  Bowdle.  3  N.  D.  107.  54  N.  \V.  404, 

21:  328 
Negligence. 

(511.  The  defense  that  a  passenger  who 
was  injured  by  riotous  conduct  of  fellow 
passengers  voluntarily  placed  himself  in 
danger  thereof  cannot  be  raised  for  the  first 
time  on  appeal.  Illinois  ('.  K.  Co.  v.  Minor. 
69  Miss.  710,  11   So.  101.  16:  627 

Contracts. 

612.  A  theory  of  defense  to  an  action  on 
contract  cannot  be  considered  on  appeal  if 
it  was  not  presented  in  the  answer,  or  the 
issues  tcn'lered  at  the  trial.  National  Cash 
Register  Co.  v.  Hill.  136  N.  C.  272,  48  S.  E. 
♦'.37.  68:  100 

613.  An  objection  that  a  contract  is  void 
upon    its    face    for    uncertainty    cannot    be 


raised  for  the  first  time  on  appeal.    Hodges 
v.  Rowing,  58  Conn.  12,  18  Atl.  979,      7:  87 

614.  Error  in  dismissing  a  petition  set- 
ting up  a  compromise  agreement,  the  gen- 
uineness of  which  is  admitted  by  failure  to 
file  an  affidavit  denying  it,  without  giving 
an  opportunity  to  show  lack  of  considera- 
tion, fraud,  rescission,  o.'  waiver,  cannot  be 
set  up  for  the  first  time  on  appeal,  where  no 
such  ground  of  attack  was  made  on  the 
trial.  Re  Garcelon's  Estate,  104  Cal.  570. 
38  Pac.  414,  32:  595 

615.  An  objection  to  the  validity  of  a 
contract  for  a  street  improvement,  not  made 
in  the  court  below,  cannot  be  considered  on 
appeal  from  a  judgment  of  sale  for  nonpay- 
ment of  a  special  assessment.  Fiske  v. 
People  ex  rel*  Ravmond,  188  111.  206,  58  N. 
E.  985,  "  52:  291 

616.  An  objection  by  defendant  that  plain- 
tifi''s  claim  has  not  matured  cannot  be  urged 
for  the  first  time  on  appeal.  Wright  v.  IjOU- 
don  F.  Ins.  Asso.  12  Mont.  474.  31  Pac.  87, 

19:  211 

617.  Where  the  answer  sets  up  a  counter- 
claim upon  a  note  of  the  plaintiff  not  ^iue  at 
the  time  of  the  trial,  and  no  objection  is 
made  that  it  is  premature,  but  the  case  is 
trie<i  throug'hout,  including  the  charge  of  the 
court  not  excepted  to,  on  the  theory  that  it 
is  a  proper  counterclaim,  the  plaintiff  must 
be  held  to  have  waived  the  objection  that 
the  note  was  not  yet  due.  Stensgaard  v. 
St.  Paul  Real-Estate  Title  Ins.  Co.  50  Minn. 
429,  52  N.  W.  910,  17:  575 
Assessments  according  to  frontage. 

618.  The  unconstitutionality  of  arbitrary 
assessments  per  front  foot  will  not  be  con- 
sidered when  the  question  has  not  been  pre- 
sented to  the  lower  court  and  the  assessment 
complained  of  is  void  for  other  reasons. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Ottumwa,  112 
Iowa,  300,  83  N.  W.  1074,  51:  763 
Corporate  matters. 

(il9.  The  wrongful  refusal  of  inspection  of 
the  books  of  a  corporation,  on  the  broad 
giound  that  the  shareholder  had  no  right  to 
inspect  them  at  any  time  or  for  any  pur- 
pose, cannot  be  sustained  on  appeal  on  the 
ground  that  it  was  not  shown  that  his  de- 
mand was  made  during  bizsiness  hours,  or 
at  the  proper  place,  or  that  the  person  mak- 
ing it  was  his  asent.  State  ex  rel.  Weinberg 
V.  Pacific  Brewing  &  M.  Co.  21  Wash.  451,  58 
Pac.  584,  47:  208 

620.  The  suggestion  that  a  foreign  insur- 
ance company  had  no  authority  to  do  busi- 
ness in  the  state  comes  too  late  on  appeal 
to  i)revent  the  enforcement  of  an  assessment 
upon  premium  notes.  Warner  v.  Delbridge 
&  C.  Co.  110  Mich.  590,  68  N.  W.  283,  34:  701 
Criminal  cases. 

Fiist  Raisinir.  on  Petition  for  Rehearing,  see 
infra,    1262. 

621.  A  conviction  for  resisting  an  officer 
in  arresting  the  defendant  for  breach  of  the 
peace  without  a  warrant  cannot  be  sus 
tained  on  appeal  by  the  claim  that  defendant 
WAS  liable  to  arrest  for  Ijeing  intoxicated  in 
a  public  street.  People  v.  Johnson,  86  Mich. 
175,  48  N.  W.  870,  13:  163 


APPEAL  AND  ERROR.  VII.  j,  4.  5. 


91 


'4.  As  to  Pleadings;  Indictments,  etc. 

Mode  of  Preserving  Question  for  Review,  see 

supra,  343,  344. 
See  also  supra,  284;  infra,  647. 

622.  Since  the  Colorado  Code  is  liberal  in 
allowing  amendments  if  applied  for  in  apt 
time,  ordinary  defects  in  pleadings  and  pro- 
ceedings will  not  be  considered  when  ob- 
jected to  for  the  first  time,  on  appeal.  John- 
son V.  Robinson  Consol.  Min.  Co.  13  Colo. 
258,  22  Pac.  4.59,  5:  769 

623.  A  judgment  will  not  be  reversed  for 
failure  to  sustain  a  demuiTer  for' reasons 
not  specified  therein.  Bristol  v.  New  Eng- 
land R.  Co.  70  Conn.  305,  39  Atl.  235, 

40:  479 
Complaint,  declaration,  or  petition. 

(}24.  The  vagueness  and  indefiniteness  of.  a 
complaint  cannot  be  considered  on  appeal, 
where  the  objection  was  not  taken  in  the 
court  below  by  motion  or  demurrer.  Orman 
V.   Maanix.   17   Colo.  564.  30   Pac.  1037. 

17 :  602 

625.  The  question  of  whether  a  petition 
states  a  cause  of  aetion,  or  discloses  grounds 
suflicient  for  the  granting  of  equitable  re- 
lief, may  be  raised  at  any  stage  of  the 
})roceedings  in  the  appellate  court,  up  to 
and  including  the  filing  of  a  motion  for  a 
rehearing.  Vila  v.  Grand  Island  E.  L.  I.  & 
C.  S.  Co.  08  Neb.  222,  97  .\.  W.  613,     63:  791 

626.  Although  the  statute  allows  com- 
plaint for  the  first  time  in  the  appellate 
court,  in  case  of  absence  f/om  the  com- 
plaint of  averments  essential  to  the  cause 
of  action,  or  the  presence  of  some  averment 
which  absolutely  destroys  the  right  to  re- 
cover, yet  mere  uncertainty  or  inade<]uacy 
of  averment,  which  might  have  been  amend- 
ed or  cured,  will  be  deemed  to  have  been 
waived  by  a  defendant  who  proceeds  with 
tlie  trial  to  final  judgment  without  objec- 
tion. South  Bend  v.  Turner,  156  Ind.  418, 
60  N.  E.  271,  54:396 

627.  The  defect  in  a  complaint  which  fails 
<<)  state  a  cause  of  action  because  an  es- 
sential fact  is  pleaded  only  by  way  of  ex- 
hibit cannot  be  taken  advantage  of  for  the 
first  time  on  appeal.  Wright  v.  Sherman, 
3  S.  D.  290,  52  N.  W.  1093,  17:  792 

628.  An  objection  to  the  declaration  in 
an  action  for  personal  injuries,  based  on  a 
fo/mal  defect  in  that  it  did  not  set  forth 
any  duty  owing  from  defendant  to  plaintiff 
cannot  be  raised  before  the  appellate  court 
iu  the  first  instance.  Cox  v.  American  Agri. 
Chemical  Co.   24  R.  I.  503,  53  Atl.  871. 

60:  629 

629.  The  question  whether  or  not  a  pe- 
tition to  recover  damages  for  injuries  co 
the  person  and  for  wrongful  death,  to  which 
a  demur/er  was  sustained,  states  a  cause  of 
action,  may  be  reviewed  on  ap])eul,  although 
the  causes  of  action  were  improperly  joined, 
where  no  motion  to  require  plaintiff  to  elect 
on  which  he  would  j)roceed  was  made.  Fore- 
man v.  Tavlor  Coal  Co.  112  Ky.  845.  66  S. 
W.  1044,     '  "^  57 :  447 

630.  A*i  attack  upon  one  of  several  para- 
graphs of  a  complaint,  made  for  the  first 


time  in  the  assignment  of  errors,  will  he  un- 
availing, even  although  the  paragraph  as- 
sailed is  radicallv  defective.  Ivouisvilie,  >!. 
A.  &  C.  R.  Go.  V.'  Corps,  124  Ind.  427,  24  N. 
E.  1046,  8:  636 

631.  An  allegation  that  defendant  "at  and 
within"  a  certain  county,  did  unlawfully 
fail  to  support  his  sister,  who  was  a  pauper, 
will  not  be  held  defective  in  failing  to  state 
that  she  is  likely  to  become  a  charge  upon 
that  county,  when  it  is  questioned  for  the 
first  time  on  appeal.  People  use  of  Peoria 
County  V.  Hill,  163  111.  186,  46  N.  E.  796, 

36:  634 

632.  Failure  to  allege  that  an  officer  was 
not  elected  his  own  successor,  in  a  complaint 
for  defalcation  after  the  expiration  of  the 
period  for  which  he  was  elected,  is  not  fatal 
when  first  asserted  on  appeal,  where  it  is 
alleged  that  the  term  expired  on  a  Certain 
day  but  that  he  contestetl  the  election  held 
on*  that  day,  and  refused  to  surrender  the 
office  for  a  certain  time  during  whieh  he 
was  a  de  facto  officer.  Baker  City  v.  Mur- 
phy, 30  Or.  405,  42  Pac.  133,  35:  88 
Answer. 

633.  An  objection  that  an  answer  does  not 
set  up  a  defense  is  not  available  when  made 
for  the  first  time  on  appeal,  and  all  the 
facts  pertaining  to  that  defense  were  proved 
on  the  trial  without  objection.  Fowler  v. 
Bowe.-y  Sav.  Bank,  113  N.  Y.  450,  21  N.  E. 
172.  '  4:  145 
Reply. 

634.  Reply  to  a  counterclaim  is  waived 
where  both  parties  treat  the  new  matter  as 
traversed,  and  put  in  evidence  thereon  with- 
out objection,  and  obtain  a  decision  upon  it. 
Power  v.  Bowdle,  3  N.  D.  107,  54  N.  W.  404, 

21:  328 
Indictments,  etc. 

635.  The  question  of  the  invalidity  of  an 
information  may  be  raised  for  the  first  time 
in  the  appellate  court.  State  v.  Coleman, 
186  Mo.  151,  84  S.  W.  978,  69:  381 

636.  An  objection  that  a  criminal  com- 
plaint was  verified  only  upon  information 
and  belief  is  too  late  when  raised  for  the 
first  time  on  appeal,  after  trial  and  convic- 
tion upon  plea  of  not  guilty.  I^^iwrence  v. 
Monroe,  44  Kan.  607,  24  Pac.  1113,       10:  520 

637.  A  motion  for  arrest  of  judgment  for 
defect  in  the  indictment  in  a  criminal  case 
may  be  made  for  the  first  time  in  the  ap- 
pellate coiut.  State  v.  Marsh,  134  N.  C.  184. 
47S.  E.  6,  67:179 

638.  An  objection  cannot  be  first  made  on 
appeal,  to  thij  fact  that  the  name  of  a  wit- 
ness was  not  indorsed  upon  an  information. 
People  n  De  France,  104  Mich.  563.  62  N. 
W.  709.  28:  139 

639.  An  objection  to  the  court's  permitting 
a  copy  of  an  information  to  be  filed  upon 
discovering  that  the  original  had  been  lost, 
on  the  ground  that  the  copy  was  not  a 
true  one,  cannot  be  raised  for  the  first  time 
on  appeal.  Long  v.  Pet>ple.  135  111.  435,  25 
N.  E.  851.  10:  48 

5.  As  to  Evidence;  Witnesses;  Variance. 

040.  The  fact  that  a  witness  tesetifled  on 


92 


APPEAL  AND  ERROR.  VII.  j,  6. 


behalf  of  the  state  in  a  criminal  case  with- 
out having  first  been  sworn  is  not  ground 
for  error,  where  no  objection  was  made  at 
the  hearing  before  he  was  fully  cross-ex- 
amined, btate  V.  Hope,  100  Mo.  347,  13  S. 
W.  490,  8:  608 

641.  Parties  excepting  to  a  refusal  by  the 
court  to  hold  that  a  given  state  of  facts,  if 
proved,  would  constitute  a  complete  defense 
in  law,  cannot  insist  on  appeal  that  the 
facts  oifered  to  be  proved  would  have  been 
competent  evidence  upon  an  issue  of  fact 
not  distinctly  presented.  Dale  v.  See  (N. 
J.  Err.  &  App.)  51  N.  J.  L.  378,  18  Atl.  306, 

5:583 
Form  of  question. 

642.  Objections  to  the  form  of  hypotheti- 
cal questions  add/essed  to  expert  witnesses 
must  be  made  in  the  trial  court.  Western 
U.  Teleg.  Co.  v.  Church,  3  Neb.  (Unof.)  22, 
90  N.  W.  878,  57:  905 
Admission. 

Sufficiency   of   Objection   or   Exception,   see 

supra,  V.  a,  2,  a. 
Necessity    for    Exceptions,    see   supra,    332, 

332a. 

643.  Objections  to  the  admission  of  testi- 
mony cannot  be  urged  for  the  first  time  on 
appeal.  Rupert  v.  Penner,  35  Neb.  587,  53 
N.  W.  598,  17:  824 

Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Penin- 
sular Land,  T.  &  Mfg.  Co.  27  Fla.  1,  157,  2 
So.  661,  9  So.  689,  17:  33 

644.  Objection  that  evidence  was  incompe- 
tent on  the  question  of  damages  cannot  be 
made  for  the  first  time  on  appeal,  where  the 
objections  in  the  court  below  were  me.'ely 
to  the  competenry  of  the  witnesses  and  as 
to  the  materiality  of  the  evidence  at  that 
stage  of  the  case.  Evans  v.  Keystone  Gas 
Co.  148  N.  Y.  112,  42  N.  E.  513,  30:  651 

645.  When,  upon  a  trial,  incompetent  or 
illegal  evidence,  but  which  tends  to  prove 
the  case  of  the  side  olTering  it,  is  admitted 
without  objection,  and  considered  by  the 
jury  in  agreeing  upon  their  veixlict,  the  in- 
<?onipetcncy  or  illegality  of  such  evidenct 
will  not  be  considered  on  error  or  appeal. 
Missouri  P.  E.  C'n.  v.  Vandevente.',  2(i  Neb. 
222,   41   N.   W.   998,  3:  129 

646.  Objections  to  answers  not  responsTve 
to  a  question- cannot  be  considered  on  appeal 
where  no  objection  was  made  below.  Reij)e 
v.  Elting,  89  Iowa,  82,  56  N.  W.  285,    26:  769 

647.  The  admission  in  evidence  of  plead- 
ings in  another  action,  which  contain  aver- 
ments which  are  properly  admitteil,  cannot 
be  questioned  on  appeal  on  the  grovind  of 
immaterial  matter  in  the  reply,  unless  the 
special  attention  of  the  trial  court  was 
called  thereto,  and  .some  action  in  that  re- 
spect was  asked.  Holnian  v.  Omaha  &  C.  B. 
Ry.  &  Bridge  Co.  117  Iowa.  268,  90  N.  W. 
833,  62:  395 
Exclusion. 

Sufficiency   of   Objection  o.*   Exception,   see 

supra,  V.  a,  2,  b. 
Necessity  for  Exceptions,  see  supra,  332. 

648.  The  trial  court  cannot  be  convicted 
of  error  on  appeal  in  excluding  evidence 
which  was  not  admissible  for  the  purpose 
for  which  it  was  offered  because  it  Avas  ad- 


missible for  purposes  first  suggested  in  the- 
appellate  court.  Gustafson  v.  Rustemeyei-,^ 
70  Conn.  125,  39  Atl.  104,  39:  644 

SuflSciency  of  evidence. 
Mode  of  Raising  Question  as  to,  see  supra^. 

346. 
See  also  supra,  334. 

649.  An  objection  that  there  is  no  evidence 
that  the  defendant  was  operating  a  cable 
railroad  at  the  time  of  the  accident  will 
not  be  considered  on  appeal,  when  no  such 
question  was  raised  on  the  trial,  and  the 
operation  of  the  road  by  defendant  is  an 
admitted  fact  in  the  case.  Winter  v.  Kansas 
City  Cable  R.  Co.  99  Mo.  509,  12  S.  W.  652, 

6:  536 
Variance. 
See  also  supra,  333,  621. 

650.  Variance  between  pleading  and  proof 
is  not  ground  for  reversal  when  no  objections 
was  made  in  the  trial  court.  Colfax  Moun- 
tain Fruit  Co.  V.  Southern  P.  Co.  118  Cal. 
648,  50  Pae.  775,  40:  78- 

651.  The  objection  of  variance  cannot  -be 
first  raised  on  appeal  under  Wis.  Rev.  Stat. 
§  2669,  providing  that  no  variance  shall  be 
deemed  material  unless  it  mislead.  Wech- 
selberg  v.  Flour  City  Nat.  Bank,  24  U.  S. 
App.  308,  12  C.  C.  A.  56,  64  Fed.  90,    26:  47»- 

652.  A  defendant  which  has  defended  an 
action  on  the  theory  that  it  charged  negli- 
gence cannot,  for  the  first  time,  on  appeal,, 
/aise  the  question  of  A^ariance,  on  the  ground 
that  the  complaint  charged  it  with  Avilful 
Avrong.  Broughel  v.  Southern  New  England 
Teleph.  Co.  72  Conn.  617,  45  Atl.  435, 

49:  404 

653.  An  objection  for  variance  betAveen 
pleading  and  proof  cannot  be  raised  for  the- 
first  time  on  appeal,  where  the  statute  per- 
mits an  amendment  or  a  finding  of  facts  in, 
such  cases,  which  may  be  foUoAV^l  by  judg- 
ment according  to  the  right  of  the  case,  if 
the  opposite  party  will  not  be  prejudiced^ 
Bertha  Zinc  Co.  v.  Martin,  93  Va.  791,  22 
S.  E.  869,  70:  999- 
Limiting  number  of  witnesses. 

654.  An  order  limiting  the  number  of  wit- 
nesses on  each  side  on  a  certain  point,  when 
made  at  or  near  the  beginning  of  a  trial 
without  objection  by  either  party,  cannot  be 
complained  of  afterAvards.  McConnell  v. 
Osage,  80  Iowa,  293,  45  N.  W.  550,       8:  77* 

6.  As  to  Jury. 

Mode  of  Raising  Question  as  to,  see  supra,. 
348. 

655.  A  ncAv  trial  will  not  be  granted  for 
alleged  illegality  of  the  jury,  Avhich  is  as- 
serted f^r  the  first  time  on  appeal.  State 
V.  HoAvard,  64  S.  C.  344,  42  S.  E.  173,    58:  68.> 

656.  The  failui'e  to  urge  an  objection  at 
the  time  a  jury  retires  unaccompanied  by  a 
sworn  officer  amounts  to  consent  or  waiver, 
by  the  accused  of  compliance  Avith  a  statute- 
requiring  them  tq  be  so  accompanied. 
Drever  v.  People,  188  111.  40,  58  N.  E.  620, 

58:  868> 


APPEAL  AND  ERROR,  VII.  j,  7— k,  1. 


93 


"7.  As  to  Instructions;  Questions  Submitted 
to  Jury. 

Sufficiency  of  Objections  and  Exceptions,  see 

supra,   V.  Si,  3. 
Necessity    for   Exceptions,    see    supra,    337, 

338." 
Mode  of  Raising  Question  as  to,  see  supra, 

349-351. 

657.  Objections  to  instructions,  which 
were  not  made  in  the  court  below,  cannot  be 
considered  on  appeal.  Paul  v.  Cragnas.  25 
Nev.  293,  59  Pac.  857,  60  Pac.  983^      47 :  540 

Rock{X)rt  V.  Rockport  Granite^  Co.  177 
Mass.  246,  58  N.  E.  1017,  51 :  779 

657a.  To  warrant  reversal  for  instructions 
which  were  not  objected  to,  they  must  have 
been  calculated  to  injure  the  rights  of  the 
complaining  party.  Burt  v.  State,  38  Tex. 
Crim.  Rep.  397,  40  S.  W.  1000,  43  S.  W. 
344,  39:  305 

658.  A  party  cannot  complain  of  a  gen- 
eral instruction  on  the  measure  of  damages 
which  is  correct  as  far  as  it  goes,  unless  he 
calls  the  court's  attention  to  the  matter, 
and  requests  a  limitation  of  the  general  lan- 
guage used.  Longan  v.  Weltraer,  180  Mo. 
:322,  79  S.  W.  655,  64:969 

659.  A  party  fearing  that  an  instruction 
will  be  taken  by  the  jury  in  a  broader  sense 
than  he  deems  consistent  with  the  law  must 
-call  the  court's  attention  to  the  language, 
to  render  it  subject  to  review.  McKee  v. 
Tourtellotte,  167  Mass.  69,  44  N.  E.  1071, 

48:  542 

660.  An  assumption  of  a  fact  by  an  in- 
-fitruction  will  not  be  considered  on  appeal, 
if  there  is  nothing  in  the  record  to  show  that 
objection  was  made  to  it,  or  that  it  was 
passed  upon  in  the  court  below.  Lewis  v. 
Tapman,  90  Md.  294,  45  Atl.  459,      47:  385 

661.  Failure  to  object  to  an  instruction 
that  three  fourths  of  the  jury  may  return 
n  verdict  does  not  waive  the  right  to  have 
the  validity  of  the  verdict  considered  on 
appeal,  where  the  receiving  and  entering  of 
the  verdict  are  objected  to,  and  an  exception 
taken  to  the  decision  of  the  court  in  over- 
ruling the  objection.  First  Nat.  Bank  v. 
Foster,  9  Wv'o.  157,  61  Pac.  466,  63  Pac. 
1056,  '  54:  549 
!  662.  A  party  at  the  request  of  whose 
■counsel  a  question  has  been  prepared  and 
submitted  to  the  jury  for  a  special  verdict  at 
the  trial  of  an  action,  without  any  sugges- 
(■tion  as  to  its  insufbciency,  will  not  be  heard 
to  object  for  the  first  time  on  appeal  that 
the  question  was  not  broad  enough  to  cover 
the  point  in  controversy.  Wright  v.  Mul- 
vaney,  78  AVis.  89.  46  N.  W.  1045;  9:  807 
Refusal  to  instruct. 

Sufficiency  of  Objection  or  Exception,  see 
I         supra,  327-330. 

:  663.  The  refusal  to  instruct  the  jury  that 
the  burden  of  proving  that  the  insured  did 
mot  come  to  his  death  through  causes  from 
liability  for  which  the  policy  excepts  the 
insurer  is  upon  the  one  suing  on  the  pol- 
licy  cannot  be  queslioned  fo.-  the  first  time 
|<>n  appeal.  Fidelity  &  C.  Co.  v.  Freeman,  48 
iC.  C.  A.  692,  109  Fed.  847,  54:  680 


8.  As  to  Judgment,  Verdict,  etc. 


Sufficiency  of  Exception  to  Findings,  see 
supra,  287,  288. 

Exception  to  Refusal  of  Peremptory  Instruc- 
tions, see   supra,   289. 

See  also  supra,  352-354. 

664.  A  party  cannot  complain  on  appeal, 
of  a  judgment  for  costs  in  the  lower  court, 
where  the  matter  was  not  brought  to  the  at- 
tention of  that  court.  Cioud  v.  Malvin,  108 
Iowa,  52.   75  N.  AV.  645,  78  N.  W.  791, 

.     45:209 
Amount. 

665.  The  objection  that  the  amount  of  the 
judgment  is  in  excess  of  the  verdict  cannot 
be  taken  for  the  first  time  on  appeal.  Green- 
ville v.  Ormand,  51  S.  C.  58,  28  S.  E.  50, 

39:847 

666.  In  the  absence  of  any  objection  in 
the  lower  court  as  to  the  amount  of  dam- 
ages allowed  by  the  jury,  such  question  can- 
not be  raised  for  the  first  time  on  appeal. 
Schmitz  V.  St.  Louis,  L  M.  &  S.  R.  Co.  119 
Mo.  256,  24  S.  W.  472,  23:  250 

667.  AVhen  no  objection,  by  motion  to  set 
aside,  or  otherwise,  has  been  made  in  the 
trial  court  to  a  verdict  rendered,  subject  to 
the  action  of  the  court,  upon  a  demurrer  to 
the  evidence,  it  cannot  be  disturbed  in  the 
appellate  court  on  the  ground  of  excess  or 
paucity  of  damages.  Uhl  v.  Ohio  River  R. 
Co.  56  W.  Va.  494,  49  S.  E.  378,  68:  138 
Nonsuit;  direction  of  verdict. 
Sufficiency  of  Exception,  see  supra,  288a. 

668.  A  nonsuit  cannot  stand  on  a  ground 
not  called  to  the  attention  of  the  court  and 
the  plaintiff  at  the  time  the  motion  therefor 
was  made.  Flynn  v.  Dougherty,  91  Cal.  669, 
27  Pac.  1080,  14:  230 

669.  Alleged  error  in  failing  to  direct  a 
verdict  for  defendant  accident  insurance 
company  on  the  ground  that  plaintiff  had 
voluntarily  exposed  himself  to  unnecessary 
danger,  is  not  available  on  appeal  where  no 
request  therefor  was  made  in  the  trial  court. 
Johnson  v.  London  Guarantee  &  A.  Co.  115 
Mich.  86,  72  N.  W.  1115,  40:  440 

k.  Errors  Waived  or  Cured  Below. 

1.  In  General. 

As  to  Sufficiency  of  Appeal  Bond,  see  supra, 

148. 
As  to  Mode  of  Serving  Bill  of  Exceptions, 

see  supra,  220. 
Waiver  of  Assignments  of  Error,  see  supra, 

W.    q. 
Curing  Errors  in  Argument  or  Remarks  of 

Counsel,  see  infra.  1103-1106. 
By  Failure  to  Raise  Below,  see  supra,  \^I. 

J- 
On    Appeal    from   Justice's    Judgment,    see 

Justice  of  the  Peace,  26,  27. 
Waiver   of   Right   to   New   Trial,  see  New 

Trial,  63,  64. 
Waiver  by  Pleading  or  Failure  to  Plead,  see 

Pleading,  I.  g. 
See  also  infra,  845. 

670.  A    state    officer    who,    although    not 


94 


APPEAL  AND  ERROR   VII.  k.  2. 


subject  to  mandamus  by  a  court  having  gen- 
eral jurisdiction  to  issue  the  writ,  submits  to 
its  jurisdiction,  thereby  waives  the  objec- 
tion, and  it  cannot  be  afterwards  raised  on 
appeal.  Com.  ex  rel.  Elkin  v.  Barnett,  199 
Pa.  161,  48  Atl.  976,  55:  882 

671.  The  right  of  a  defendant  to  be  sued 
in  the  division  of  the  district  of  Washing- 
ton in  which  he  resides  is  waived  by  ap- 
pearing in  another  division  and  having  tht 
action  transferred  to  that  of  his  residence. 
The  Willamette,  44  U.  S.  App.  26,  96,  70  Fed. 
874,  72  Fed.  79,   18  C.  C.  A.  366,  373, 

31:  715 

672.  A  defense  of  former  action  pending 
may  be  waived  by  the  failure  to  introduce 
evidence  to  support  it  at  the  hearing.  Hey- 
ward  v.  Farmers'  Min.  Co.  42  S.  C.  138,  19 
S.  E.  96.3,  20  S.  E.  64,  "28:  42 

673.  An  alleged  error  in  allowing  a  defend- 
ant to  justify  under  a  statute  is  w^aived 
where  the  plaintiff  is  present  and  has  an  op- 
|>ortunity  to  accept,  but  does  not  do  so. 
Sinmionds  v.  Holmes,  61  Conn.  1,  23  Atl. 
702,  15:  253 

674.  The  answer  to  particular  questions  of 
fact  is  waived  by  allowing  the  jury  to  find  a 
general  verdict  without  asking  the  court  to 
have  them  answered.  Carrico  v.  West  Vir- 
ginia, C.  &  P.  R.  Co.  39  W.  Va.  86,  19  S.  E. 
.^>71,  24:  50 
Arraignment  and  plea. 

675.  Failure  to  arraign  the  defendant  and 
receive  his  ])lca  before  swearing  the  jury  and 
beginning  tne  trial  upon  an  indictment  for 
felony  is  reversible  eiror.  which  i**  not  «ured 
l>y  arraignment  and  plea  after  the  trial  has 
begun.  Parkinson  v.  People.  135  111.  401,  25 
X.  E.  764,  10:  91 
Selection  of  jury. 

See  also  Jury,  105,  106:  New  Trial,  21. 

676.  The  refusal  to  set  aside  an  incompe 
lent  juror  is  not  cured  by  the  fact  that,  at 
tiic  tune  the  jury  was  sworn,  defendant  had 
uhusinI  pereniptorv  challenges.  People  v. 
.McQuade,    110  Is.  V.  284,    18  N.    E.    156. 

1 :  273 
By  remittitur. 

678.  Error  in  taxing  an  item  of  costs  is 
cured  by  proinptlj'  remitting  that  item. 
Second  Ward  bav.  Bank  v.  Schranck,  97 
Wis.   250,  73  N.  \^'.  31,  39:  .-)69 

2.  .Vs  to  Pleadings. 

By  Failure  to  Raise  Obje(  tion  Below,  sec 
sui)ra,  V  II.  j,  4. 

By  Pleading  or  Failure  to  Plead.  s(!e  Plead- 
ing, 61.' 

679.  The  pleadings  will  be  treatetl  on  ap- 
]»eal  as  the  parties  elected  to  treat  them  in 
tli(^  court  Ix'low.  Daniels  \.  Brodie,  54  Ark. 
216,  15  S.  W.  467.  11:  81 

680.  An  express  agreement  for  a  hearing 
on  the  pleadings  and  to  dispense  with  fur- 
ther pleadings  is  a  waiver  of  all  objections 
to  th(!  pleadings.  Farmers'  f^oan  &  T.  Co. 
v.  Canada  &  St.  L.  B.  Co.  127  Ind.  250,  26 
X.   K.  784.  11:  740 

681.  ^^'l)en  a  case  is  submitted  to  tiie  law 
court  on  a  report  of  evidence  or  on  an  agreed 


statement  of  facts,  technical  questions  of 
pleading  will  be  considered  as  having  been 
waived,  unless  the  contrary  appears.  Pils- 
bury  v.  Brown,  82  Me.  450,  19  Atl.  858, 

9:  94 

682.  After  both  parties  have  assumed  that 
there  is  a  certain  issue,  and  the  trial  and 
judgment  have  proceeded  on  that  assump- 
tion, neither  can  question  the  fact  as  to 
such  issue  on  appeal.  San  Diego  Land  & 
T.  Co.  V.  Neale,  88  Cal.  50,  25  Pac.  977, 

11:  604 

683.  Where  a  complaint  based  upon  only 
one  cause  of  action  contains  all  the  allega- 
tions essential  to  a  cause  for  tort,  and  also 
to  a  cause  upon  contract,  and  the  answer 
fully  covers  both  causes,  if  the  court  before 
the  introduction  of  evidence  determines  as 
to  the  form  of  the  action,  the  plaintiff's  con- 
ducting the  trial  upon  the  theory  suggested 
by  the  court  will  be  an  election  on  his  part 
which  will  be  conclusive  upon  him.  Barndt 
V.  Frederick,  78  Wis.  1,  47  N.  W.  6,     11:  19{> 

684.  The  abandonment  of  common  counts 
makes  the  failure  to  elect  between  them  and 
others  immaterial.  Carland  v.  Western  U. 
Teleg.  Co.  118  Mich.  369,  76  N.  W.  762. 

43:  280 
Exceptions. 

685.  A  plaintiff  who,  where  an  exception 
of  no  cause  of  action  is  sustained,  with  leave 
to  amend,  amends  his  petition  in  obedience 
to  the  order  of  the  c*ourt,  thereby  waives  his 
right  to  question  the  correctness  of  the  rul- 
ing on  the  exception.  Wolf  v.  New  Orleans 
Tailor-Made  Pants  Co.  113- La.  >388,  «7  So. 
2,  67:  65 
Demurrer. 

686.  A  demurrer  treated  in  the  trial  court 
as  waived  or  withdrawn  must  be  so  consid- 
ered on  appeal.  Chesapeake  &  O.  R.  Co.  v. 
American  E.xch.  Bank,  92  Va.  495,  23  S.  E. 
935,  44:  449 

687.  Amending  a  declaration  under  leave 
granted  on  sustaining  a  demurrer  thereto 
prevents  any  objection  to  that  ruling  upon 
appeal.  Ball  v.  Chesapeake  &  O.  R.  Go.  9$ 
Va.  44,    24  S.  E.  407,  32:  792 

688.  Error  in  sustaining  a  demurrer  to  a 
s|)ecial  plea  is  cured,  if,  under  the  general 
issue,  proof  is  introduced  and  the  jury  passes 
upon  the  identical  qiu^stion  sought  to  bo 
raised  bv  such  plea.  Strouse  v.  Leipf,  101 
Ala.  433^  14  So.  667,  23:  622 

689.  The  right  to  except  to  an  order  in 
effect  striking  a  portion  of  a  petition  upon 
demurrer,  and  limiting  the  plaintiffs'  right 
of  recovery  to  specified  items  was  not  lost 
because  they  consented  to  so  much  of  a  ver- 
dict which  the  court  directed  in  their  favor 
as  related  to  the  amount  they  were  entitled 
to  recover  upon  such  items.  Wright  v.  Hol- 
Ivwood  Cemetery  Corp.  112  (la.  884,  38  S.  E. 
94,  52:  621 

600.  The  ruling  of  a  court  sustaining  a 
demurrer  to  a  complaint  for  misjoinder  of 
[)arties  and  causes  of  action  cannot  be  re- 
viewed upon  appeal  if  plaintiff,  after  such 
,  ruling,  withdraws  the  case  against  all  but 
one  of  the  defendants,  and  tiles  a  new  com- 
plaint against  him,  upon  which  the  case  is 
tried,  and  the  judgment  entered  from  which 


APPEAL  AND  ERROR,  VII.  k.  3-5. 


95 


the  appeal  is  taken.    Tyler  v.  Waddingham, 
58  Conn.  375,  20  Atl.  365,  8:  657 

3.  As  to  Evidence. 

By  Failure   to  Raise  Objection   Below,   see 
supra,  VII.  j,  5. 

Admission. 

Waiver  by  Nature  of  Objections  or  Excep- 
tions, see  supra,  V.  a,  2,  o. 
By   Failure   t«   Raise  Objection  Below,   see 

supra,  643-647. 
Errors  Cured  by  Instructions,  Verdict,  etc., 
see  infra,  VII.  ni,  3,  o,  (5). 
0!)1.  An  exception  to  a  rulincr  admitting 
incompetent  evidence  is  not  waived  by  of- 
fering testimony  on  the  same  line,  in  the  ex- 
ceptant's own  interest.  Horres  v.  Berkeley 
Chertiical  Co.  57  S.  C.  189,  35  S.  E.  500, 

52:  .30 

692.  Asking  a  witness  to  repeat  his  ac- 
count of  an  interview  on  his  cross-examina- 
tion does  not  amount  to  a  waiver  of  the 
right  to  urge  an  exception  already  saved  to 
bis  direct  testimony  on  the  subject.  Barker 
v.  St.  Tx)uis.  1.  M.  &  S.  R.  Co.  126  Mo.  143, 
28  S.  W.  866.  26:  843 

692a.  An  objection  to  the  testimony  of  the 
sui-viving  party  to  a  cause  of  action  in  his 
own  behalf,  which  is  forbidden  by  statute, 
is  not  waived  by  cross-examining  him  only 
as  to  matters  covered  by  his  examination  in 
chief.  Johnston  v.  .Jolinston,  173  Mo.  91, 
73  S.  W.  202.  61 :  166 

693.  Objection  to  the  admission  in  evi- 
dence of  a  will  because  it  is  not  proved  by 
the  subscribing  witnesses  is  obviated  by  the 
subsequent  calling  and  examination  of  the 
witnesses,  who  testify  to  the  execution  of 
the  will  by  the  testator.  Re  Stetson's  Will, 
167  Mass.'.-)5,  44  N.  E.  1085,  39:  715 
Exclusion. 

Waiver  by  Nature  of  Objections  or  Excep- 

1  inn-*,  see  s\ipra,  V.  a.  21,  b. 
By    Failure    to  Raise   Objection   Below,   see 

supra.  648. 
Effect  of  Subsecjuent   Admission,  see  infra, 

966-972. 

694.  Where  evidence  is  excluded,  and  sub- 
sequently the  objection  is  withdrawn,  and 
the  testimony,  for  aught  that  appears  could 
as  well  have  been  introduced  thereafter  no 
exception  can  be  taken  to  such  exclusion. 
Wabash.  St.  L.  &  P.  R.  Co.  v.  McDougall. 
126  III.  111.  18  N.  E.  291,  1:  207 
Striking  out. 

t)95.  A  moticm  to  strike  out  plaintifl's  tes- 
timony is  waived  if  defendant  proceeds  to 
introduce  evidence.  Manufacturers'  Acci.  In- 
demnitv  Co.  v.  Dorian.  16  U.  S.  App.  290, 
7  C.  C'.*  A.  581,  58  Fed.  945.  22:  620 

69().  Kiror  in  striking  out  evidence  of 
declarations  as  to  ownership  of  land  is  cured 
by  tinding  ownership  in  the  person  whom 
such  declarations  tend  to  show  to  be  the 
owner.  Uilcv  v.  .Martinelli.  97  Cal.  .575,  32 
Pac.  579,  21 :  33 

4.  As  to  Instructions. 

By   Failure    to  Raise  Objection   Below,   see 
supra.    VU.  j,  7. 


697.  Where  the  whole  drift  of  the  charge 
on  a  particular  question  is  erroneous,  the  er- 
ror will  not  be  cured  by  the  fact  that  ex- 
pressions may  be  found  in  the  charge,  which, 
standing  alone,  would  free  it  from  the  ob- 
jections urged.  People  v.  Flack,  125  N.  Y. 
324,  26  N.  E.  267.  II:  807 

698.  The  exception  given  by  law  on  refusal 
to  give  proper  instructions  to  the  jury  is  not 
waived  by  proceeding  with  the  trial  after 
an  instruction  has  been  refused.  Chess- 
man V.  Hale,  31  Mont.  577,  79  Pac.  254, 

68:  410 
By  other  instructions. 

699.  Erroneous  instructions  are  not  cured 
by  others  conti^adicting  them.  Chicago  City 
R.  Co.  V.  Wilcox  (111.)  24  N.  E.  419.       8:  494 

Rev'd  on  Rehearing  in  138  111.  370,  27  N. 
E.    899,  21:  76 

700.  Giving  a  correct  instruction  at  the 
request  of  one  of  the  parties  does  not  cor- 
rect an  error  in  the  general  charge,  unless 
the  instructions  there  given  are  recalled  or 
explained.  Standard  L.  &  Acci.  Ins.  Co.  v. 
Sale,  57  C.  C.  A.  418,  121  Fed.  664,        61:  337 

701.  A  defect  in  art  instruction,  consisting 
of  an  assumption  of  a  fact,  is  cured  by  other 
instructions  which  clearly  present  to  tne 
jury  the  question  as  to  the  fact  thus  as- 
sumed. Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Becker,  67  Ark.   1,  53  S.  W.  406,       46:  814 

702.  Faulty  instructions  given  at  the  in- 
stance of  one  party  are  not  ground  for  re- 
versal, if  any  error  in  them  is  explained  and 
cured  by  those  given  for  the  other  party. 
Chicago"  City  R.  Co.  v.  Tuohy,  196  III.  410, 
63  N.  E.  997,  58:  270 

703.  The  mere  general  instruction  to  the 
jury,  that  they  are  not,  to  consider  any  facts 
but  those  whidi  have  been  proved  by  the 
witnesses  or  the  exhibits,  is  not  sufficient  to 
cure  inflammatory  appeals  to  passion  and 
prejudice  against  the  accused  in  a  criminal 
case,  and  threats  to  the  jury  of  popular  de- 
nunciation. People  V.  Fielding,  158  N.  Y. 
542,  53  N.  E.  497,  46:  641 
By  verdict. 

704.  An  erroneous  instruction  is  not 
prejudicial  error  where  the  jury  find  in  favor 
of  the  excepting  party  on  the  issue  as  to 
which  the  instruction  was  given.  Omaha 
&  G.  Smelting  &  R.  Co.  v.  Tabor,  13  Colo. 
41,  21  Pac.  925,  5:  236 

705.  The  suggestion  by  the  trial  judge,  in 
his  charge  to  the  jury,  of  a  doubt  as  to  the 
truthfulness  of  the  witnesses  of  one  of  the 
parties,  is  immaterial  if  the  jury  show  by 
their  verdict  that  thev  believetl  them. 
Wriglit  V.  Mulvaney,  78  Wis.  89,  46  N.  W. 
1045,  9:  807 

5.  Taking  Case  from  Jury. 

By   Failure   to  Raise   Objection   Below,   see 
supra,  VII.  j,  7. 

706.  An  exception  to  a  refusal  to  take 
a  case  from  the  jury  at  the  close  of  plain- 
tiff's evidence  is  waived  by  the  introduction 
of  evidence  by  defendant.  United  Railways 
&  E.  Co.  V,  State  use  of  Deane,  93  Md.  619, 
49  Atl.  923,  54:  942 


96 


APPEAL  AND  ERROR,  VII;  1,  1,  2. 


Nonsuit. 

707.  The  fact  that  there  was  no  competent 
evidence  to  sustain  a  verdict  for  phiintiff 
wlien  a  motion  for  a  nonsuit  was  made  at 
the  close  of  plaintiff's  evidence  is  immaterial, 
where  defendant  has  introduced  evidence 
which  supplies  the  deficiency.  Gagnon  v. 
Dana,  69  N.  11.  264,  39  Atl.  982,  ^41:  389 
Directing  verdict. 

708.  A  motion  to  direct  a  verdict  for  the 
defendant  is  waived  when  he  proceeds  with 
his  evidence.  Poling  v.  Ohio  Eiver  R.  Co. 
38  W.  Va.  64.5,   18  S.  E.  782,  24:  215 

709.  A  motion  to  direct  a  verdict  for  de- 
fendant is  abandoned  by  proceeding  to  in- 
troduce evidence  to  sustain  the  defense  aft- 
«r  the  motion  is  overruled,  if  it  is  not  re- 
newed. Lake  Shore  &  M.  S.  R.  Co.  v.  Rich- 
ards, 152  111.  59,  38  N.  E.  773,  30:  33 

710.  A  party  cannot  complain  of  a  direct- 
ed verdict  on  conflicting  evidence  after  he 
has  moved  for  a  direction  of  the  verdict  in 
his  favor,  if  he  has  not  specifically  requested 
a  submission  of  any  questions  to  the  jury, 
but  this  rule  will  not  apply  if  the  verdict  is 
imsupported  bv  evidence.  Standford  v.  Ma- 
gill,  fi  N.  D.  536,  72  X.  W.  938,         38:  760 

711.  The  submission  by  defendant  of  its 
case  to  the  jurj'  upon  the  evidence  and  gen- 
eral instructions  as  to  the  law,  after  refusal 
of  its  request  for  an  instniction  to  return  a 
verdict  of  not  guilty,  asked  at  thQ  close  of 
plaintiff's  testimony  and  again  at  the  con- 
clusion of  all  the  evidence,  is  not  a  waiver 
of  the  right  to  assign  error  for  such  refusal. 
West  Chicago  Street  R.  Co.  v.  Liderman, 
187  111.  40.3,  58  X.  E.  367,  52:  655 
Demurrer  to  evidence. 

712.  Objection  to  the  overruling  of  a  de- 
murrer to  plaintiff's  evidence  is  waivefl  by 
the  introduction  of  evidence  on  behalf  of 
defendant.  Fuchs  v.  St.  Louis,  167  Mo.  620. 
67  S.  W.  610,  57:  136 

1.  Review  of  Facts.  * 

1.  In  General. 

See  also  supra.  231. 

For  Editorial  Notes,  see  infra,  XI.  §  12. 

713.  A  conclusion  as  to  an  ultimate  fact, 
•drawn  from  certain  specified  evidential  facts 

which  are  legally  incompetent  to  sup|X)rt  it, 
is  a  proper  subject  of  review  on  proceedings 
in  error.  Nichols  v.  Peck,  70  Conn.  439.  39 
Atl.  803,  40:  81 

714.  The  sufficiency  of  facts  found  to  sup- 
port a  judgment  may  be  raised  by  writ  of 
error,  when  the  facts  are  made  part  of  the 
record  of  the  judiinient.  Corbett  v.  Matz. 
72  Conn.  610.  45  Atl.  494,  48:  217 

715.  The  circuit  court  of  appeals  may  re- 
view the  question  whether  or  not  a  finding 
•of  facts  in  an  action  at  law   in  the  circuit 

court  has  anv  evidence  to  support  it.  King 
V.  Smith,  49"'C.  C.  A.  46.  110  Fed.  'Xk 

5-1 :  708 

716.  A  finding  treated  as  a  conclusion  of 
law  by  the  trial  court,  t.o  the  effect  that 
money  was  paid  to  defendant  "as  legatee." 
■cannot  be  treated  by  the  supreme  court  as 


a  finaing  of  fact.    Scott  v.  Ford,  45  Or.  531, 
78  Pac.  742,  68:  469 

717.  On  appeal  to  the  Louisiana  supreme 
court  solely  imder  the  grant  of  jurisdiction 
to  that  court  over  suits  involving  the  con- 
stitutionality or  legality  of  a  fine  or  penalty 
imposed  by  a  municipal  corporation,  the 
question  whether  the  facts  were  sufficient  to 
justify  the  conviction  of  the  appellant  can- 
not be  considered.  Crowley  v.  Ellsworth, 
114  La.  308,  38  So.   199,  69:  276 

718.  A  party  is  not  entitled  to  have  a  find- 
ing of  facts  corrected  where  thny  are  not  ad- 
mitted or  undisputed,  and  the  facts  found 
are  not  without  evidence  to  support  them, 
while  the  record  is  not  shown  to  embrace  all 
the  evidence  adduced  with  reference  to  them. 
Hj-geia  Distilled  Water  Co.  v.  Hygeia  Ice  Co. 
72  Conn.  646,  45  Atl.  957,  49:  147 

2.  Of  Verdict. 

a.  In  General. 

Presumption  as  to,   see  supra,  421-433. 
New  Trial  for  Insufficiency  of  Evidence,  see 
New  Trial,  14-17. 

719.  A  finding  of  fact  by  a  jury  on  con- 
flicting evidence  will  not  be  disturbed  on  ap- 
peal. Hall  V.  Manson,  99  Iowa,  698.  68  N. 
W.  922,  34:  207 

720.  Where  the  evidence  is  conflicting,  and 
is  sufficient  to  support  the  verdict,  it  will 
not  be  reviewed  on  appeal.  McConnell  v. 
Poor,  113  Iowa,  133,  84  N.  W.  968,    52:  312 

721.  That  the  verdict  is  against  the  clear 
weight  of  evidence  is  not  assignable  for  er- 
ror. Bouvier  v.  Baltimore  &  N.  Y,  R.  Co. 
(N.  J.  Err.  &  App.)  67  N.  J.  L.  281,  51  Atl. 
781,  60:  750 

722.  A  finding  by  the  jury  will  be  accept- 
ed as  correct  upon  appeal,  unless  it  clearly 
appears  to  have  been  erroneous.  James  v. 
Rapides  Lumber  Co.  50  La.  Ann.  717,  23  So. 
469,  44:  33 

723.  A  verdict  fiairly  rendered,  after  a  case 
has  been  fairly  submitted  to  a  jury,  ought 
not  to  be  interfered  with  by  the  court,  unless 
manifest  wrong  or  injustice  has  been  done, 
or  im'ess  the  verdict  is  plainly  not  warrant- 
ed by  the  evidence.  P.osley  v.  Baltimore  & 
O.  R.  Co.  54  W.  Va.   563.  46  S.  E.  613, 

66:  871 

724.  A  finding  of  fact  by  the  jury  cannot 
be  reversed  by  tlie  supreme  court  on  appeal, 
although  it  appears  to  be  against  the  pre- 
ponlera nee  of  evidence,  if  there  is  evidence 
to  support  it  which  cannot  be  said  to  be 
incredible,  and  it  cannot  be  said  that  all 
the  ivas;)nable  probabilities  and  inferences 
are  against  their  conclusion.  Busse  v.  Rog- 
ers.  120  Wis.  443,  98  N.  W.  219,         64:  183 

725.  The  sufficiency  of  evidence  to  go  to 
the  jury  or  to  sustain  a  verdict  cannot  be 
passed  upon  on  aj)peal.  further  than  to  as- 
certain if  at  the  close  of  the  plaintilfs  case 
there  was  evidence  tending  to  prove  the 
facts  alleged  in  his  declaration,  and  whether 
at  the  close  of  all  the  testimony  the  evi- 
dence, with  all  the  inferences  which  the  jury 
couUl  justifiably  draw  from  it,  was  insuffi- 
cient to  support  a  verdict  for  plaintiff.    Ci- 


APPEAL  AND  ERROR.  VII.  1.  2. 


97 


««ero  &  P.  R.  Co.  v.  Meixner,  160  111.  320,  43 
N.  E.  823,  31 :  331 

726.  A  second  verdict  in  favor  of  the  plain- 
tiff will  not  be  disturbed  on  appeal  after  the 
trial  judge  has  refused  to  set  it  aside,  merely 
because  the  evidence  does  cot  make  a  strong 
ease  to  support  it.  Western  &  A.  R.  Co.  v. 
Voils,  98  Ga.  446,  26  S.  E.  483,  35:  655 

727.  A  verdict  charging  a  person  upon  a 
lease  will  not  be  set  aside  on  appeal  as 
w^ithout  evidence  to  support  it,  wherp  it  ap- 
pears that  lie  had  the  benefit  of  it,  that 
his  checks  were  given  in  payment  of  the 
rent,  and  that  the  nominal  lessees  were  his 
agents  and  had  no  use  for  the  leasehold 
themselves.  Marshall  v.  Rugg,  6  Wyo.  270, 
44  Pac.  700,  45  Pac.  486,  33:  679 

728.  In  an  action  upon  a  policy  of  accident 
life  insurance,  where  the  defense  is  that  th( 
assured  came  to  his  death  by  suicide,  if  there 
is  some  evidence  to  go  to  the  jury  upon  the 
question  of  insanity,  and  the  jury  have,  un- 
der a  fair  submission,  determined  that  ques- 
tion in  the  affirmative,  the  Michigan  supreme 
court  will  not  disturb  the  finding.  Black - 
stone  v.  Standard  L.  &  A.  Ins.  Co.  74  Mich. 
-592,  42  N.  W.  156,  3:  486 

729.  A  general  verdict  for  plaintiff  is  not 
conclusive  in  the  appellate  court  upon  the 
question  whether  or  not  the  declaration 
states  a  cause  of  action.  Pontiac  v.  Talbot 
Paving  Co.   30  C.  C.   A.   88,  94  Fed.  65,  37 

"C.  C.  A.  556,  96  Fed.  679,  48:  326 

730.  A  verdict  controlled  by  no  reason, 
supported  by  no  justice,  and  which  is  mani- 
festly the  result  of  passion  and  prejudice, 
will  not  be  sustained  on  appeal,  no  matter 
how  many  similar  verdicts  may  have  been 
previously  returned  in  the  case.  Peterson  v. 
Western  U.  Teleg.  Co.  65  Minn.  18,  67  N.  W. 
^46,  33:  302 

731.  A  substantial  conflict  in  evidence 
which  will  prevent  a  review  of  a  verdict  is 
not  made  by  the  mere  general  conclusion 
of  a  tax  assessor  as  to  the  vaiue  of  a  rail- 
road without  examining  the  reports  of  the 
road,  or  inquiring  as  to  the  amount  of  its 
business,  or  considering  any  decrease  in  its 
-earnings,  where  the  undisputed  facts  show 
that  it  ought  to  be  assessed  much  lower  than 
his  estimate.  State  v.  Virginia  &  T.  R.  Co. 
23  Nev.  283,  46  Pac.  723,  35:  759 
Negligence. 

732.  A  verdict  that  facts  do  not  sustain 
-a  charge  of  negligence  cannot  be  disturbed 
on  appeal.  Gibson  v.  Huntington,  38  W. 
Va.  177.  18  S.  E.  447,  22:  501 

733.  The  appellate  court  will  not  interfere 
•with  the  jury's  adoption  as- a  basis  for  their 
verdict,  of  one  of  several  theories  as  to  the 

■cause  of  an  accident,  where  it  is  reasonably 
deducibh;  from  the  evidence.  Livermore 
Foundry  &  M.  Co.  v.  Union  Compress  & 
Storagi^  Co.  105  Tenn.  187,  58  S.  W.  270, 

.o3:  482 

734.  A  verdict  in  favor  of  plaintiff  in  an 
action  to  recover  for  injury  to  a  railroad 
brakeinan  while  coupling  cars  through  the 
alleged  negligence  of  the  engineer  in  failing 
to  stop  his  engine  as  soon  as  the  cars  came 
together,  and  hold  it  stationary  until  sig- 
<nalled  to  move  it  again,  will  not  be  disturbed 

L.R.A.  Dig.— 7. 


where  the  evidence  is  conflicting,  but  plain- 
tiff's evidence  that  the  engine  was  not 
stopped  is  corroborated  by  undisputed 
evidence  tending  to  show  that  fact.  Schus 
V.  Powers- Simpson  Co.  85  Minn.  447,  89  S. 
W.  68,  69:  887 

735.  A  verdict  finding  lack  of  due  care  in 
inspection  of  an  engine  which  was  derailed 
by  the  falling  of  a  brakeshoe  in  advance  of 
a  carwheel,  which  could  not  have  faLen  if 
properly  fastened,  and  the  fastening  of 
which  was  so  made  as  to  render  any  defect 
easily  observed,  will  not  be  set  aside  as 
against  evidence,  though  there  is  proof  of 
frequent  inspection.  Missouri  P.  R.  Co.  v. 
McElyea,  71  Tex.  386,  9  S.  W.  313,  1:  411 
Criminal  cases. 

736.  The  supreme  court  of  California  has 
no  jurisdiction  of  criminal  cases  on  questions 
of  fact.  People  v.  Lewis,  124  Cal.  551,  57 
Pac.  470,  45:783 

737.  A  verdict  which  is  clearly  against  the 
evidence  because  it  convicts  of  crime  a  per- 
son of  whose  sanity  there  appears  a  reason- 
able doubt  shou.d  be  set  aside.  Armstrong 
V.  -State,  30  Fla.  170,  11  So.  618,  17:  484 

738.  The  finding  by  tne  jury  of  a  conspir- 
acy to  rob,  and  a  participation  by  one  of 
the  conspirators  in  killing  the  owner  of  the 
property  while  attempting  to  carry  out  the 
conspiracy,  upon  conflicting  evidence,  some 
of  which,  if  believed,  is  sufficient  to  establish 
the  fact,  is  conclusive  upon  the  appellate 
court.  People  v.  Lawrence,  143  Cal.  148,  7(J 
Pac.  893,  6^:  193 

6.  As  to  Damages  and  Values. 

As  to  Measure  of  Damages  Generally,  see 
Damages   III. 

Instances  of  Excessive  Amounts  see  Dam- 
ages, 224-228,  251,  253,  257,  270,  272, 
354-378. 

Instance  of  Insufficient  Amount,  see  Dam- 
ages, 273. 

739.  An  excessive  vercjict  cannot  be  cor- 
rected in  the  Federal  courts  upon  a  writ 
of  error.  Morning  Journa'  Asso.  v.  Ruther- 
ford, 1  U.  S.  App.  296,  2  C.  C.  A.  354,  51 
Fed.  513,  16:  803 

740.  The  Michigan  supreme  court  cannot 
consider  the  question  whether  damages  are 
excessive;  it  can  only  determine  whether  er- 
rors of  law  have  been  committed.  Coots  v. 
Detfoit,  75  Mich.  628.  43  N.  W.  17,      5:  315 

Hunn  V.  Michigan  C.  R.  Co.  78  Mich.  513, 
44  N.  W.  502,  7:  500 

741.  A  verdict  for  damages  will  not  be 
disturbed  on  writ  of  error  on  the  ground 
that  they  were  excessive,  when  the  trial 
court  did  not  disturb  it.  Peirce  v.  Van 
Dusen,  24  C.  C.  A.  280,  47  U.  S.  App.  339, 
78  Fed.  693,  69:  705 

742.  The  amount  of  damages  is  a  question 
of  fact  for  the  jury  upon  all  the  evidence, 
and,  if  there  is  .any  evidence  to  support  the 
verdict,  the  Utah  supreme  court  is  not  at 
liberty,  under  the  Constitution,  to  set  it 
aside.  Croco  v.  Oregon  Short-Line  R.  Co. 
18  Utah,  311,  54  Pac.  985,  44:  285 

743.  No  mere  difference  of  opinion,  how- 
ever decided,  justifies  an  interference  by  the 


9S 


APPEAL  AND  ERROR,  VH.  1,  8. 


appellate  court  with  a  verdict  on  the  ground 
of  excessive  damages;  but  the  amount  must 
be  so  out  of  the  way  as  to  evince  passion, 
prejudice,  partialitv,  or  corruption  in  the 
jury.  Battrell  v.  Ohio  River  R.  Co.  34  W. 
Va.  232,  12  S.  E.  699,  11:  290 

744.  To  justify  an  inference  that  the 
amount  of  damages  awarded  by  the  jury 
was  not  the  result  of  fair  and  unprejudiced 
consideration  the  facts  in  evidence  should 
be  such  that  no  other  conclusion  can  be  en- 
tertained. Longan  v.  Weltmer,  180  Mo.  322, 
79S.  W.  655,  64:969 

745.  In  an  action  to  recover  damages  for 
personal  injuries,  the  court  will  not  interfere 
with  the  verdict  of  a  jury,  on  the  ground 
that  the  damages  are  excessive,  unless  tne 
finding  was  so  manifestly  unjust  as  to  show 
partiality,  prejudice  or  misapprehension  on 
the  part  of  the  jury.  Normile  v.  Wheeling 
Traction  Co.  57  W.  Va.  132,  49  S.  E.   1030, 

68:  901 

746.  The  verdict  is  conclusive  as  to  the 
value  of  property  in  a  building  at  the  time 
of  an  accidental  discharge  of  an  automatic 
fire  extinguisher,  in  determining  whether  or 
not  there  shall  be  an  apportionment  of  the 
loss  imder  a  policy  insuring  against  such 
loss,  but  providing  that,  in  case  the  value  of 
the  property  is  more  than  a  certain  amount, 
the  insurer  shall  be  liable  only  for  such  pro- 
portion of  the  face  of  the  policy  as  the 
amount  named  bears  to  the  value  of  the 
property  in  the  building.  Wertheimer- 
Swarts  Shoe  Co.  v.  United  States  Casualtv 
Co.  172  Mo.  135,  72  S.   w.  635,  61:  766 

747.  The  reversal  of  a  judgment  on  a  ver- 
dict for  excessive  damages,  authorized  by  Pa. 
act  May  20,  1891,  even  if  the  lower  court 
had  denied  a  motion  for  a  new  trial,  does 
not  infringe  the  constitutional  right  to  a 
jury  trial.  Smith  v.  Times  Pub.  Co.  178 
Pa.  481,  36  Atl.  296,  35:  819 

3.  Findings  of  Court. 

a.  In  General. 

Presumptions  as  to,  see  supra,  421-433. 
See  also  supra,  219,  467;  infra,  811. 

748.  A  finding  of  fact  by  the  court  in  a 
case  at  law  is  conclusive  on  appeal.  Kansas 
City,  M.  &  B.  R.  Co.  v.  Southern  Railwav 
News  Co.  151  Mo.  373,  52  S.  W.  205,    45:  380 

749.  Findings  of  fact  by  the  trial  court 
on  conflicting  evidence  will  not  be  disturbed 
on  appeal.  Barnes  v.  Western  U.  Teleg.  Co. 
27  Nev.  438,  76  Pac.  931,  65:  666 

750.  Findings  of  fact  will  not  be  disturbed 
on  appeal,  when  they  have  evidence  to  sup- 
port them  and  are  not  against  the  weight 
of  the  evidence.  Bates  v.  American  Mort- 
gage Co.  37  S.  C.  88,  16  S.  E.  883,     21:  340 

751.  The  credibility  of  witnesses  and  the 
weight  of  evidence  are  for  the  trial  court, 
and  the  appellate  court  will  not  disturb  its 
finding,  unless  plainly  contrary  t<i  the  pre- 
ponderance of  the  evidence.  Moore  v.  Strick- 
linjr.  46  VV.  Va.  515,  33  S.  E.  274,         50:  279 

752.  Under  Tnd.  Code,  §  658,  a  judgment 
cannot  be  rcvcrsetl  where  it  appears  that 
the  merits  of  the  cause  have  been  fairly  tried 


and  determined  in  the  court  below.    McNutt 
V.  McNutt,  116  Ind.  545,  19  N.  E.  115, 

2:  372 

753.  A  ruling  of  the  trial  court  upon  the 
weight  of  evidence  is  not  subject  to  review. 
Utley  V.  Hill,  155  Mo.  232,  55  S.  W.  1091, 
1102,  49:  32* 

754.  Failure  of  the  superior  court  to  de- 
termine the  facts  correctly  cannot  be  consid- 
ered in  the  supreme  court  of  errors.  Nolaa 
V.  New  York,  N.  H.  &  H.  R.  Co.  70  Conn. 
159,  39  Atl.  115,  43:  305- 

755.  A  general  finding  of  fact  in  a  case 
tried  by  a  United  States  court  without  the- 
intervention  of  a  jury  cannot  be  reviewed  by 
an  appellate  court.  Rhodes  v.  United  States 
Nat.  Bank,  24  U.  S.  App.  607,  66  Fed.  512,. 
13  C.  C.  A.  612,  34:  742 

756.  An  appeal  does  not  lie  in  Connecticut 
on  the  ground  that  the  evidence  does  not 
support  the  facts  found  by  the  court  below,, 
but  does  support  a  state  of  facts  whieh  the 
court  found  not  proved.  Curtis  v.  Bradley, 
65  Conn.  99,  31  Atl.  591,  28:  143 

757.  A  material  finding  in  favor  of  plain- 
tiff cannot  be  stricken  from  the  record  and  a 
judgment  rendered  for  defendant,  wher& 
there  is  any  evidence  to  support  it.  Conroy 
V.  Chicago,  St.  P.  M,  &  O.  R.  Co.  96  Wis. 
243,  70  N.  W.  486,  38:  419> 

758.  In  an  action  at  law,  the  inferences  of 
fact  made  by  the  trial  court  are  not  review- 
able on  appeal,  provided  they  are  fairly 
within  the  scope  of  the  evidence.  Conrad  v. 
Fisher,  37  Mo.  App.  352,  8:  147 

759.  The  findings  of  the  trial  court  on  con- 
flicting evidence  will  not  be  disturbed  unless 
they  are  clearly  against  the  preponderance- 
of  the  evidence.  Case  v.  Hoffman,  100  Wis. 
314,  72  N.  W.  390,  74  N.  W.  220,  75  N.  W. 
945,  44:  72» 

760.  Tlie  findings  of  the  trial  court  should 
receive  such  construction  as  will  uphold, 
rather  than  defeat,  its  judgment  thereon. 
Breeze  v.  Brooks,  97  Cal.  72,  31  Pac.  742, 

22:  256 

761.  The  supreme  court  cannot  make  find- 
ings of  fact  in  a  law  case,  nor  substitute 
one  finding  for  another,  except,  perhaps,  in 
a  case  wh^re  no  other  reasonable  inference- 
can  be  derived  from  the  evidence.  Scott  v. 
Ford,  45  Or.  531,  78  Pac.  742,  68:  46» 

762.  The  jurisdiction  of  the  supreme  couro 
of  Wisconsin  under  the  Constitution  being 
appellate  only,  except  in  specified  cases,  a 
statute  attempting  to  make  it  the  duty  of 
that  court  to  examine  and  review  the  evi- 
dence preserved  by  bill  of  exceptions,  and 
give  judgment  according  to  the  right  of  the 
case,  regardless  of  the  decision  by  the  court 
below,  upon  questions  of  fact  as  well  as  of 
law, — is  unconstitutional.  Kleim  v.  Vale- 
rius, 87  Wis.  54,  57  N.  W.  1112,         22:  60»^ 

703.  The  legal  .sufliciency  of  evidence  to- 
support  a  finding  by  tlie  court  is  a  question 
of  law  on  appeal.  Texas  Loan  Agency  v. 
Fleming.  92  Tex.  458,  49  S.  W.  1039,    44:  27i> 

764.  An  erroneous  conclusion  drawn  by  the 
trial  court  from  facts  found  by  it  from  the- 
evidence  ofl'ered  may  be  corrected  on  appeal. 
Xolan  V.  New  York.  N.  H.  &  H.  R.  C-o.  70 
Conn.   159,  39  Atl.    115,  43:  305^ 


APPEAL  AND  ERROR,  VII.  1.  3. 


9» 


765.  Conclusions  of  the   trial  court   front' 
subordinate  facts  found  may  Ye  reviewed  on 
jiyipeal.     lloadlcv  v.  Savings  Bank  of  Dan- 
bury,  71  Conn.  599,  42  Atl.  067,  44:  321 

7ti6.  The  cono.usion  of  law  to  be  deduced 
from  a  special  finding  of  facts  is  a  question 
to  be  finally  determined  by  the  supreme 
court.  .Jones  v.  Glidewell,  53  Ark.  IGl,  13 
S.  W.   723,  7 :  831 

7G7.  That  the  trial  court  found  in  accord- 
ance with  the  testimony  of  one  witness 
against  that  of  three  others  is  not  ground 
for  exception.  Condon  v.  Pomroy-Grace,  73 
Ck)nn.  607,  48  Atl.  7.50.  '^3:  696 

768.  The  same  strict  iiile  must  be  applied 
by  the  appellate  court  as  by  the  court  be- 
low in  respect  to  the  sufficiency  of  parol  evi- 
dence to  show  that  a  deed  was  intended  for 
a  mortgage.  Jasper  v.  Hazen,  4  N.  D.  1,  58 
N.  W.  454,  23:  58 

769.  A  finding  by  the  presiding  judge  in  a 
law  case  tried  without  a  jurj',  that  plaintiff 
in  an  action  to  try  title  to  real  estate  has 
sufficiently  connected  himself  with  the  orig- 
inal grant  from  t'he  state  to  maintain  the 
action,  is  a  finding  of  fact  that  cannot  be 
reviewed  by  the  supreme  court  upon  appeal. 
Hevward  v.  Farmers'  Min.  Co.  42  S.  C.  138, 
19  'S.  E.  963,  20  S.  E.  64,  28:  42 

770.  A  finding  by  the  trial  court  that  cer- 
tain land  is  overflowed  with  back  water  from 
a  dam,  which  is  supported  by  a  fair  pre- 
ponderance of  tlie  evidence,  will  not  be  dis- 
turbed by  the  appellate  court.  Charnley  v. 
Shawano  Water-Power  &  R.  Improv.  Co.  109 
Wis.  563,  85  N.  W.  507,  53:  895 

771.  Whether  or  not  the  construction  of 
a  granite  curb  in  place  of  an  old  one  of  blue- 
stone  is  new  work  for  the  repair  of  old  work 
is  a  question  of  fact,  upon  which  the  deter- 
mination of  the  trial  court  is  not  reviewable 
on  appeal.  People  ex  rel.  North  v.  Feather- 
atonliaugh,  172  N.  Y.  112,  64  N.  E.  802, 

60:  768 

772.  A  finding  t'hat  the  sanitary  code  of  a 
board  of  health  was  subscribed  by  the  secre- 
tary will  not  be  disturbed  on  appeal,  where 
tOiere  is  no  proof  that  the  original  which 
has  been  destroj'ed,  was  not  signed,  and  a 
copy  of  the  code  as  published  purports  to  be 
signed  by  the  secretary,  and  is  attested  by 
his  signature  as  published.  Yonkers  Bd.  of 
Health  v.  Copcutt,  140  N.  Y.   12,  35  N.  E. 

•  443,  23:  485 

773.  An  order  discharging  a  writ  of  habeas 
corpus  upon  the  report  of  a  guardian  ad 
litem  will  not  be  reversed  because  of  what 
the  appellant  may  allege  he  could  have 
proved,  where  the  record  shows  no  proof  or 
offer  to  give  proof  of  any  facts  which  would 
require  a  different  decision.  King  v.  McLean 
Asylum  of  M.  G.  H.  21  U.  S.  App.  481,  12  C. 
C.  A.  145,  64  Fed.  331,  26:  784 
Misconduct  of  counsel. 

774.  A  decision  of  the  trial  court  on  con- 
flicting evidence  as  to  the  misconduct  of 
counsel  will  not  be  disturbed  on  error.  Ger- 
man Ins.  Co.  V.  Shader,  68  Neb.  1,  93  N.  W. 
972,  60:  918 
Lowest  bidder. 

775.  The  decision  of  municipal  authori- 
ties as  to  who  among  several  bidders  is  the 


lowest  cannot,  if  resting  on  legal  evidence, 
be  reviewetl  on  writ  of  error.  State  ex  rel. 
Wilson  V.  Trenton,  (N.  J.  Err.  &  App.)  61 
N.  J.  L.  599,  40  Atl.  575,  44:  540 

Residence  of  voters. 

776.  The  decision  of  the  trial  court  as  to 
the  residence  of  voters  will  not  be  disturbed 
when  supported  by  their  testimony  and  t'he 
question  is  one  of  fact  into  which  the  in- 
tention of  the  parties  largely  enters.  Hope 
V.  Flentge,  140  Mo.  390,  41  S.  W.  1002, 

47:806 
Testamentary  capacity. 

777.  A  finding  by  the  court  that  testator 
had  testamentary  capacity  of  the  highest 
order  is  erroneous  where  the  question  of  un- 
due influence  is  also  involved,  if  it  appears 
that,  possessed  of  property  over  $300,000  in 
value,  he  gave  more  than  three  fourths  of 
it  to  one  of  his  children,  and  for  a  period  of 
ten  years  co\rering  the  time  of  the  will  he 
drank  largely  of  intoxicating  liquors  and 
was  afflicted  with  locomotor  ataxia;  while 
disinterested  witnesses  testify  to  the  daily 
consumption  of  unusual  quantities  of  intox- 
icants, and  the  failure  of  memory,  and 
weakening  of  will  power,  although  the  evi- 
dence of  incapacity  is  not  sufficient  to  send 
t'he  case  to  the  jurv.  Re  Miller's  Will,  179 
Pa.  645,  .36  Atl.  139,  39:  220 
Fraud;   good  faith. 

E.xcessiveness  of  Allowance,  see  Divorce  and 
Separation,  82. 

778.  A  finding  of  the  trial  court  as  to  the 
existence  of  facts  constituting  a  fraud,  will 
not  be  disturbed  on  appeal,  imless  clearly 
wrong.  Galusha  v.  Sherman,  105  Wis.  263, 
81N.  W.  495,  47:417 

770.  A  finding  by  the  trial  court  upon  a 
distinct  issue  of  fact  whether  or  not  tlie 
assignee  of  a  savings-bank  pass-book  is  a 
bona  fide  holder  is  conclusive.  McCaskill  v. 
Connecticut  Sav.  Bank,  60  Conn.  300,  22 
Atl.  568,  13:  737 

Agency. 

780.  A  finding  by  the  trial  court  that  an 
agent  of  a  foreign  corporation  upon  whom 
process  was  served  was  not  such  an  agent 
as  the  statute  authorized  the  service  of  pro- 
cess upon  is  not  such  a  finding  of  fact  as 
precludes  the  appellate  court  from  examin- 
ing the  question  in  view  of  the  undisputed 
testimony  in  the  case.  Abbeville  E.  L.  &  P. 
Co.  V.  Western  Electrical  Supply  Co.  61  S. 
C.  361,  39  S.  E.  559,  55:  146 

781.  The  appellate  court  will  not  review  a. 
finding  of  the  trial  court  that  an  agent 
for  liquidating  the  affairs  of  an  insolvent 
bank  misapplied  its  funds  by  declaring  and 
paying  a  dividend  on  stock  belonging  to 
himself,  while  be  claims  that  it  belonged 
to  a  third  person,  where  there  was  persua- 
sive evidence  to  go  to  the  jury  in  favor  of 
the  finding;  among  which  was  the  nonpro- 
duction  of  the  check  by  which  the  money 
was  paid,  and  the  existence  of  uncollected 
indebtedness  of  the  third  person  to  the 
bank  of  more  than  the  amount  of  the  divi- 
dend. Jewett  v.  United  States,  41  C.  C.  A. 
88,  100  Fed.  832,  53:  568 
Divorce;  alimony. 

782.  The  decision  of  a  single  justice  on  a 


100 


APPEAL  AND  ERROR,  VII.  1,  3. 


question  of  fact  in  a  cause  for  divorce  can- 
not be  revised  by  the  supreme  judicial  court 
of  Massachusetts,  eitr.er  on  appeal  or  on 
report.  Darrow  v.  Darrow,  159  Mass.  262, 
34  N.  E.  270,  21 :  100 

783.  An  allowance  of  alimony  by  the  trial 
court  will  not  be  disturbed  unless  manifest- 
ly unjust.  Hooper  v.  Hooper,  102  Wis.  598, 
78  N.  W.  753,  44:  725 
Contested  election  cases. 

784.  Where  the  law  makes  the  judge  the 
trier  of  facts  in  cases  to  which  the  consti- 
tutional right  of  trial  by  jury  does  not  ex- 
tend, as  has  been  done  in  contested  election 
cases,  his  findings  of  fact  are  -as  conclusive 
on  appeal  as  the  verdict  of  a  jury.  Jones 
vl  Glidewell,  53  Ark.  161,  13  S.  W.  723, 

7;  831 

785.  Although  the  supreme  court  will  not 
attempt  to  ascertain  where  the  weight  or 
the  preponderance  of  the  evidence  lies  in 
a  contested  election  case,  it  will  determine 
whether  or  not  a  given  finding  is  sustained 
by  the  testimony.  Id. 
Insurance  cases. 

786.  A  finding  of  the  trial  court  on  thp 
question  whether  or  not  a  refusal  to  answer 
as  to  the  cost  of  insured  property  will  pre- 
vent recovery  on  an  insurance  policy  which 
requires  the  insured  to  submit  to  an  exnm- 
jnation  will  not  be  reviewed  by  the  New 
York  court  of  appeals,  since  it  is  a  finding 
on  a  question  of  fact,  or  a  mixed  question 
of  law  and  fact.  Porter  v.  Traders'  Ins. 
Co.  164  N.  Y.  504,  58  N.  E.  641,  52:  424 

787.  Fndings  of  a  trial  court  on  the  ques- 
tion of  the  waiver  of  a  forfeiture  by  re- 
ceiving subsequent  payments  do  not  present 
any  question  of  law  for  review  on  appeal 
by  the  supreme  court  after  affirmance  by 
the  appellate  court  of  Illinois,  where  such 
findines  are  made  on  a  denial  of  the  facts 
alleged  to  constitute  the  waiver  after  a 
demurrer  to  the  pleading  which  set  them  up 
has  been  overruled.  Moerschbaecher  v.  Su- 
preme Council  Royal  League,  188  111.  9,  59 
N.  E.  17.  52:281 

788.  Where  insured  arrived  in  Council 
Bluffs  so  much  intoxicated  that  he  was  left 
in  the  car  until  morning,  but  registered  in 
a  hotel  at  that  place  on  thnt  morning,  and 
was  next  seen,  in  the  evening,  at  Omaha, 
near  a  ditch  containinsr  3  or  4  feet  of  water, 
where  he  was  found  dead  the  next  morning; 
and  the  witness  who  claims  to  have  seen 
him  that  morning  testifies  that  he  walked 
like  a  dnmken  man,  but  his  testimony 
shows  marked  discrepancies  in  the  descrip- 
tion of  the  man, — a  finding  by  the  trial 
judge,  that  the  defense  based  on  his  intox- 
ication at  the  time  of  his  death  was  not 
made  out,  will  not  be  disturbed.  Newman 
V.  Covenant  Mut.  Ben.  Asso.  76  Iowa,  56, 
40  N.  W.  87,  1:  659 
Negligence. 

789.  An  exception  to  a  finding  of  fact  as 
to  negligence,  where  there  is  no  uncertain- 
ty as  to  the  rule  by  which  it  is  to  be  gov- 
erned, but  only  as  to  what  the  conduct  was, 
constitutes  no  ground  of  anpeal  under  Conn, 
act  1893.  Peltier  v.  Bradley,  D.  &  C.  Co. 
67  Conn.  42,  34  Atl.  712,  32:  651 


790.  A  finding  of  negligence  cannot  be  re- 
viewed for  error  in  law  if  a  separate  state- 
ment of  the  facts  ascertained  and  the  ap- 
olication  of  the  law  thereto  is  impractica- 
ble, so  that  the  case  cannot  serve  as  a  prece- 
dent. Nolan  V.  New  York,  N.  H.  &  H.  R. 
Co.  70  Conn.  159,  39  Atl.  115,  43:  305 

791.  Negligence  is  a  question  of  fact 
which  cannot  be  reviewed  on  appeal  unless 
the  trial  court  failed  to  apply  the  correct 
standard  of  duty,  or  violated  some  ru.e  or 
principle  of  law  applicable  to  the  facts  as 
found.  Bergin  v.  Southern  Mew  England 
Telenh.  Co.  70  Conn.  54,  38  Atl.  888,    39:  192 

791a.  A  finding  that  conditions  attending 
two  trains  movins:  in  the  same  direction  on 
a  single-track  road  created  an  emergency 
for  which  the  rules  governing  the  operation 
of  trains  did  not  provide,  requiring  the  exer- 
r^ise  of  ordinary  prudence  in  giving  special 
instructions,  is  a  finding  of  law  reviewable 
by  the  appellate  court.  Nolan  v.  New  York, 
N.  H.  &  H.  R.  Co.  70  Conn.  159,  39  Atl. 
115,  43:  305 

792.  Findings  by  a  trial  court  that  a  rail- 
road did  not  sufficiently  provide  for  the  op- 
eration of  two  trains  which  came  into  col- 
lision; that  it  was  negligent  in  failing  so  to 
provide  by  special  order  in  addition  to  the 
freneral  rules;  that  an  injurv  resulted  from 
this  negligence;  and  that  the  railroad  did 
not  exercise  ordinary  care  in  the  move- 
ments of  trains, — although  called  findings  of 
fact,  are  reviewable  by  the  appellate  court 
as  conclusions  of  law.  id. 
Amount  of  damages. 

For  Editorial  Notes,  see  infra,  XL  §  13. 

793.  A  finding  upon  evidence,  of  the 
amount  of  compensation  for  propertv  con- 
demned, by  the  court  below,  is  conclusive 
in  the  New  York  court  of  appeals,  unless 
•^n  erroneous  rule  of  law  has  been  followed. 
Re  Brooklyn,  143  N.  Y.  596,  38  N.  E.  983. 

26:  270 

794.  A  question  of  fact  on  conflicting  evi- 
dence is  not  reviewable  by  the  New  York 
court  of  appeals,  on  an  appeal  from  an 
award  of  damages  in  condemnation  proceed- 
ings under  N.  Y.  Laws  1877,  chap.  445.  Re 
Thompson,  127  N.  Y.  463,  28  N.  E.  389, 

14:  52 

795.  A  conditional  assessment  by  the  trial 
court  of  substantial  damasres  for  death  by 
wrongful  act  in  case  such  damages  may 
properly  be  awarded,  together  with  an  act- 
ual assessment  of  nominal  damages  only,  ia 
not  conclusive  in  case  the  a^ppellate  court 
holds  the  actual  assessment  erroneous,  since 
the  finding  was,  in  th^  view  of  the  trial 
court,  upon  an  immaterial  fact.  Broughel 
v.  Southern  New  England  Teleph.  Co.  72 
Conn.  617,  45  Atl.  435,  49:  404 
Attachment. 

796.  A  finding  of  a  trial  court  sustaining 
an  attachment  upon  conflicting  evidence 
will  not  be  disturbed  on  appeal.  Second 
Nat.  Bank  v.  Fitzpatrick,  111  Ky.  228,  63 
S.  W.  459,  62:  599 

797.  A  decision  on  a  motirin  to  di«t"bnr're 
an  attachment  upon  conflicting  affidavits 
will  not  be  disturbed,  unless  clearly  against 


APPEAL  AND  ERROR,  VII.  1,  4. 


101! 


the  weight   of   evidence.     Whipple  v.  Hill, 

36  Neb.  720,  55  N.  W.  227,  20:  313 
Sanity  of  accused. 

798.  A  finding  by  the  trial  court  that 
there  is  not  any  doubt  of  the  sanity  of  the 
accused,  upon  which  it  refuses  to  impanel 
a  jury  to  try  that  question,  has  the  same 
effect  on  appeal  as  a  verdict  of  a  jury 
against  the  accused.  Maas  v.  pklahoma,  10 
Okla.  714,  03  Pac.  960,  53:  814 

6.  In  Equity. 

See  also  supra,  793-795 ;  infra,  809,  810,  822, 
823,   1198. 

799.  Findings  of  fact  in  a  diancery  case 
are  conclusive  in  the  appellate  court,  unless 
they  are  so  manifestly  erroneous  as  t»  dem- 
onstrate some  oversight  or  mistake.  Block 
V.  Salt  Lake  Rapid  Transit  Co.  9  Utah, 
31,  33  Pac.  229,  24:  610 

800.  The  findings  or  decree  of  a  chancellor 
may  be  sustained  on  conflicting  evidence,  al- 
though so  doubtful  and  unsatisfactory  that 
the  appellate  court,  if  acting  on  it  in  the 
first  instance,  would  have  pronounced-  a 
different  decree.  Reger  v.  O'Neal,  33  W.  Va. 
159,  10  S.  E.  375,  6:  427 

801.  A  decree  as  to  the  mental  capacity 
of  one  who  enters  into  a  marriage  contract, 
rendered  on  sufficient  but  conflicting ,  evi- 
dence, cannot  be  disturbed  on  appeal.  Prine 
V.  Prine,  36  Fla.  676,  18  So.  781,  34:  87 

802.  Judgment  by  a  court  of  equity  will 
not  be  disturbed  because  the  uncontradicted 
testimony  of  a  witness  examined  by  com- 
mission was  rejected,  where  the  court  states 
that  it  is  not  favorably  impressed  with  such 
testimony,  and  does  not  believe  the  witness 
to  have  been  actuated  by  a  desire  to  speak 
the  whole  truth,  and  believes  him  interested 
in  the  result.    Bates  v.  American  Mortg.  Cb. 

37  S.  C.  88,  16  S.  E.  883,  21:  340 

803.  Findings  of  fact  are  not  conclusive 
on  the  appellate  court  in  equity  cases,  un- 
less the  evidence  is  so  evenly  balanced  or  so 
unsatisfactory  as  to  leave  the  court  in  seri- 
ous doubt.  North  Point  Consol.  Irrigation 
Co.  V.  Utah  &  S.  L.  Canal  Co.  16  Utah,  246 
52  Pac.  168,  40:  851 

804.  The  legal  effect  of  undisputed  evi- 
dence consisting  of  written  statements  as 
to  whether  or  not  a  race  meeting  successive- 
ly held  on  different  tracks  close  to  each 
other  constitutes  one  race  meeting  or  more 
is  a  question  of  law,  and  not  of  fact,  on 
reviewing  a  finding  of  a  lower  court.  State 
ex  rel.  Matthews  v.  Forsyth,  147  Ind.  466, 
44  N.  E.  593,  '  33:  221 

805.  An  injunction  against  an  alleged  nui- 
sance, granted  against  a  great  preponder- 
ance of  evidence,  will  be  reversed.  Wood  v. 
McGrath,  150  Pa.  451,  24  Atl.  682,     16:  715 

806.  The  granting  of  a  temporary  injunc- 
tion to  plaintiff  by  the  trial  court,  after  is- 
sue joined,  and  upon  the  pleadings  and  affi- 
davits of  both  parties,  is,  fer  the  purpose 
of  reviewing  the  action  of  the  court,  deemed 
to  be,  in  effect,  a  finding  that  the  allega- 
tions of  the  complaint  upon  which  the  writ 
is  prayed  for  are  true;  and,  upon  appeal 
from  the  order  granting  the  writ,  the  ap- 


pellate court  will  review  the  affidavits  otily 
to  the  extent  of  determining  whether  they 
fairly  tend  to  support  the  allegations  of 
the  complaint.  Gray  v.  Building  Trades 
Council,  91  JVIinn.  171.  97  N.  W.  663, 

63:  753 

4.  Of  Findings  by  Referee,  etc. 

See  also  supra,  427. 

807.  A  referee's  findings  must  be  against 
the  clear  preponderance  of  evidence  in  order' 
to  be  set  aside  on  appeal.     Guetzkow  Bros. 
Co.  V.  A.  H.  Andrews  &  Co.  92  Wis.  214, 
66  N.  W.  119,  52:  209 

808.  The  finding  of  commissioners  of  the 
value  of  towage  services  based  upon  con- 
flicting evidence  will  not  be  disturbed  on 
appeal.  Scott  v.  Wiswall,  30  C.  C.  A.  339, 
57  U.  S.  App.  179,   86  Fed.  671,  42:  85 

809.  The  concurrent  finding  of  a  master 
and  a  chancellor  on  a  disputed  matter  of 
fact  cannot  be  reversed  on  appeal  by  the 
chancery  court  of  appeals,  where  there  is 
material  evidence  to  support  it.  Royston  v. 
McCulley  (Tenn.  Ch.)  59  S.  W.  725,    52:  899 

810.  A  finding  by  a  referee  and  court, 
made  without  excluding  any  evidence,  to  the 
effect  that  there  is  no  evidence  tending  to 
prove  an  allegation,  cannot  be  reviewed  on 
appeal,  as  that  would  be  to  pass  upon  the 
weight  of  the  evidence.  Lenoir  v.  Linville 
Improv.  Co.  126  N.  C.  922,  36  S.  E.  185, 

51:  146 

811.  Alt'houg'h  the  court  is  required  upon 
appeal  to  review  questions  of  fact  under 
N.  D.  Laws  1891,  chap.  120,  §  25,  in  cases 
tried  by  the  court  or  referee  when  excep- 
tions to  the  findings  are  duly  taken  and  re- 
turned, it  will  not  try  the  case  de  novo,  but 
the  findings  below  are  presumed  to  be  cor- 
rect; and  a  finding  based  upon  parol  evi- 
dencie  will  not  be  disturbed  unless  the  error 
be  made  clearly  to  appear.  Jasper  v. 
Hazen,  4  N.  D.  1,  58  N.  W.  454,  23:  58 

812.  Findings  of  fact  of  a  commissioner, 
though  not  as  conclusive  as  the  verdict  of  a 
jury,  will  be  sustained  on  appeal,  where 
they  have  been  approved  by  the  court  below, 
unless  plainly  not  warranted  by  any  rea- 
sonable view  of  the  evidence.  Reger  v. 
O'Neal,  33  W.  Va.  159,  10  S.  E.  375,    6:  427 

813.  The  finding  of  a  referee  in  favor  x)f 
the  genuineness  of  a  promissory  note  upon 
whi(;h  the  suit  is  brought  is  conclusive  upon 
the  court  of  appeals  of  New  York,  if  there 
was  enough  evidence  before  him  to  call  for 
his  opinion  upon  that  subject.  Mills  v. 
Davis,  113  N.  Y.  243,  21  N-  E.  68,       3:  394 

814.  The  finding  of  a  referee  affirmed  by, 
the  trial  court  is  conclusive  as  to  whether 
or  not  an  attempted  amendment  of  the  con- 
fession of  faith  of  a  religious  society  was 
so  radical  as  to  destroy  the  identity  of  the 
church,  unless  clear  error  in  the  finding  is 
pointed  out.  Schlichter  v.  Keiter,  156  Pa. 
119,  27  Atl.  45,  22.:  161; 

815.  A  general  finding  by  a  referee  that  a 
party  was  duly  appointed  adminstrator  of' 
the  estate  of  a  person  referred  to  as  "de-J 
ceased"  throughout  the  report  is  sufi&cient 


102 


APPEAL  AND  ERROR,  VII.  1,  5. 


to  sustain  the  administration,  where  noth- 
ing further  appears  in  the  record  to  enable 
the  appellate  court  to  judge  of  its  legality. 
Manning  v.  Leighton,  65  Vt.  84,  26  Atl.  258, 

24:  684 

816.  The  court  of  appeals  will  not  review 
the  conclusion  of  the  officer  specially 
charged  with  the  determination  of  the  ques- 
tion of  the  necessity  of  certain  work  to  com- 
plete a  job  or  certain  supplies  for  the  city 
of  New  York,  where  it  appears  that  the 
facts  called  for  the  exercise  of  his  judg- 
taent,  and  that  a  reasonable  necessity 
might  by  possibility  have  existed.  Bradv 
V.  New  York,  112  N,  Y.  480,  20  N.  E.  390, 

2:  751 

817.  A  referee's  finding  in  an  action  for 
an  accounting  of  the  profits  of  a  con- 
tract, that  defendants  are  entitled  to  judg- 
ment dismissing  the  complaint,  and  direct- 
ing judgment  to  be  entered  accordingly,  up- 
on the  ground  that  the  contract  is  contrary 
to  public  policy  and  void,  is  simply  a  non- 
suit, and  entitles  plaintiff  to  have  it  re- 
viewed in  the  light  of  the  facts  and  infer- 
ences most  favorable  to  him.  Veazey  v.  Al- 
len, 173  N.  Y.  359,  66  N.  E.  103,  62:  362 

'        5.  On  Appeal  from  Appellate  Court. 

See  also  supra,  793. 

818.  The  facts  may  be  reviewed  by  the 
supreme  court  of  Illinois  to  the  extent  of 
ascertaining  whether  or  not  there  was  such 
evidence  tending  to  establish  plaintiff's  dec- 
larations as  should  have  been  submitted  lo 
the  jury,  where  error  is  assigned  to  the 
giving  or  refusal  of  an  instruction  to  find 
for  the  defendant.  Siddall  v.  Jansen,  168 
111.  43,  48  N.  E.  191,  39:112 

819.  Controverted  questions  of  fact  can- 
not be  considered  on  appeal  from  the  ap- 
pellate court  of  Illinois,  although  the  court 
has  not  expressly  found,  in  terms,  against 
appellant  on  those  questions,  and  portions 
of  its  opinion  are  inconsistent  with  and  neg- 
ative the  presumption  of  such  a  finding. 
Postal  Teleg.  Cable  Co.  v,  Lathrop,  131  111. 
575,  23  N.  E.  583,  7:  474 

820.  A  finding  of  the  lower  court  as  to 
the  amount  of  benefits  sustained  by  an  ele- 
vated railroad  company  from  a  street  pave- 
ment is  not  subject  to  review  by  the  Illi- 
nois supreme  court.  Lake  Street  Elev.  R. 
Co.  V.  Chicago,  183  111.  75,  55  N.  E.  721, 

47:  624 

821.  A  statute  making  the  judgment  of 
the  appellate  court  conclusive  on  all  ques- 
tions ot  fact  does  not  violate  the  provisions 
of  the  Illinois  Constitution  authorizing  ap- 
peals and  writs  of  error  to  the  supreme 
<'ourt  in  all  criminal  cases  and  cases  in 
which  a  franchise  or  freehold  or  the  validity 
of  a  statute  is  involved,  and  "in  such  other 
case  as  may  be  provided  bv  law."  Lake 
Shore  &  M.  S.  R.  Co.  v.  Richards,  152  111. 
69,  38  N.  E.  773,  30:  33 

822.  The  finding  of  facts  by  the  appellate 
court  of  Illinois  does  not  bind  the  supreme 
court  in  chancery  cases.  Belleville  v.  Citi- 
Ecns'  Horse  R.  Co.  152  111.  171,  38  N.  E.  584, 

20:  681 


823.  The  supreme  court  of  Illinois  will  ex- 
amine and  determine  for  itself  the  truth 
in  respect  to  controverted  questions  of  fact, 
from  the  evidence  in  the  record,  in  review- 
ing causes  in  chancery.  Miller  v.  Cook,  135 
111.  190,  25  N.  E.  750,  10:  292 

824.  Findings  of  facts  by  the  district 
judge,  affirmed  by  the  court  of  appeal,  will, 
except  in  case  of  manifest  error,  be  treated 
and  considered  as  true.  Delisle  v.  Bourri- 
ague,  105  La.  77,  29  So.  731,  54:  420 

825.  The  supreme  court  of  Louisiana  has 
authority  to  review  conclusions  of  fact 
reached  by  the  court  of  appeals,  but  only 
does  so  in  exceptional  cases.  Brignac  v. 
Pacific  Mut.  L.  Ins.  Co.  112  La.  574,  36  So. 
595,  66:  322 

826.  A  finding  of  facts  affirmed  by  the  ap- 
pellate division  is  binding  on  the  court  of 
appeals.  Lahey  v.  Lahey,  174  N.  Y.  146, 
66  N.  E.  670,  61 :  791 

827.  On  an  appeal  to  the  New  York  court 
of  appeals  from  an  order  of  the  general 
term  of  the  supreme  court  denying  a  motion 
for  a  new  trial,  made  under  N.  Y.  Code  Civ. 
Proc.  §  1001,  only  the  questions  of  law 
presented  can  be  considered.  Wahl  v.  Bar- 
num,  116  N.  Y.  87,  22  N.  E.  280,  5:  623 

828.  A  decision  of  the  general  term  re- 
versing a  judgment  upon  exceptions,  and  at 
the  same  time  affirming  an  order  separate- 
ly ap'pealed  from  which  denied  a  motion  for 
a  new  trial,  can  be  reviewed  by  the  New 
York  court  of  appeals  only  upon  questions 
of  law  arising  upon  the  exceptions,  and  not 
in  respect  to  sufficiency  of  evidence  or  ex- 
cess of  damages.  Edgecomb  v.  Buckout,  146 
N.  Y.  332,  40  N.  E.  991,  28:  816 

829.  Exceptions  to  alleged  findings  of  fact 
when  they  are  supported  by  evidence,  and 
to  the  refusals  to  find  when  they  are  estab- 
lished by  undisputed  proof,  present  ques- 
tions of  law  reviewable  in  the  New  \ork 
court  of  appeals.  Bedlow  v.  New  York 
Floating  Drv  Dock  Co.  112  N.  Y.  263,  19 
N.  E.  800,  2:  629 

830.  On  appeal  from  a  judgment  of  re- 
versal upon  questions  of  both  law  and  fact, 
it  will  be  reviewed  as  to  both  in  the  New 
York  Court  of  Appeals.  Holmes  v.  Gilman, 
138  N.  Y.  369,  34  N.  E.  205,  20:  566 

831.  A  certificate  by  the  appellate  divi- 
sion, that  a  reversal  was  upon  the  law  and 
upon  the  facts,  will  not  prevent  the  court 
of  appeals  from  determining  whether  a  ques- 
tion of  fact  is  involved,  and  reviewing  the 
law,  if  there  is  none.  Hirshfeld  v.  Fitzger- 
ald, 157  N.  Y.  106,  51  N.  E.  997,  46:  839 

832.  A  statement  in  an  order  of  the  ap- 
pellate division,  that  it  reverses  the  judg- 
ment of  the  trial  court  "upon  the  law  and 
the  facts,"  will  not  prevent  a  review  by  the 
court  of  appeals  of  the  only  question  is 
whether  the  transaction  as  disclosed  by  the 
facts  was  forbidden  bv  a  statute..  O'Brien 
V.  East  River  Bridge  Co.  161  N.  Y.  539,  56 
N.  E.  74,  48:  122 

833.  The  New  York  court  of  appeals  will 
not  reverse  a  determination  of  a  matter  of 
fact  whidi  is  supported  by  some  evidence,  in 
case  of  a  certiorari  to  review  an  assessment 
for  taxes.    People  ex  rel.  Hecker-Jones-Jew- 


APPEAL  AND  ERROR,  VII.   m,  1. 


103 


«H  Mill  Co.  V.  Barker,  147  N.  Y.  31,  41  N. 
E.  435,  29:  393 

834.  The  court  of  appeals  cannot  review 
the  decision  of  the  comptroller  when  bused 
on  sufficient  evidence  and  affirmed  by  the 
appellate  divison  of  the  supreme  court  as 
to  the  capital  employed  within  the  state  up- 
on Which  a  corporation  is  subject  to  a 
franchise  tax.  People  ex  rel.  Commercial 
€able  Co.  v.  Morgan,  178  N.  Y.  433,  70  N. 
E.  967,  67:  960 

835.  What  may  be  the  law  which  is  to  be 
applied  to  a  contract  made  in  a  foreign 
state  is  a  question  of  fact,  upon  which  the 
finding  of  the  trial  court,  followed  by  a 
judgment  based  thereon,  which  is  affirmed 
hy  the  appellate  division,  is  binding  on  the 
court  of  appeals.  Spies  v.  National  City 
Bank,  174  N.  Y.  222,  66  N.  E.  736,       61 :  193 

836.  Findings  that  a  plaintiff  suing  to  set 
aside  a  deed  and  mortgages  never  executed 
or  acknowledged  the  deed,  but  that  her  sig- 
nature and  that  of  the  notary  public  to  the 
jicknowledgment  clause,  though  genuine, 
were  obtained  by  some  trick  or  artifice 
■which  is  unknown,  when  accompanied  by  a 
decision  in  her  favor  and  unanimously  af- 
firmed by  the  appellate  division,  without 
any  finding  that  the  plaintiff  was  negligent 
or  was  estopped  to  deny  the  validity  of  the 
deed,  or  that  the  holders  of  the  mortgages 
were  bona  fide  purchasers, — are  conclusive 
in  the  court  of  appeals  in  her  favor,  and  pre- 
clude any  contention  that  she  was  negligent 
or  estopped  or  that  the  mortgages  were  held 
by  bona  fide  purchasers.  Harden  v.  Dorthy, 
160  N.  Y.  39,  54  N.  E.  726,  46:  694 

837.  The  court  of  appeals  may  review  the 
reversal  of  a  judgment  by  the  appellate  di- 
vision of  the  supreme  court,  althougli  it  is 
stated  to  be  upon  the  facts,  if  the  inferences 
from  tiie  uncontradicted  evidence  all  point 
in  one  direction,  so  that  but  one  conclusion 
could  be  reached  by  any  reasonable  mind. 
Re  Totten,  179  N.  Y.  112,  71  N.  E.  748. 

70:  711 

838.  A  finding  that  there  is  no  such  dis- 
parity or  difference  between  signatures  on 
drafts  presented  to  a  savings  bank  and  that 
of  the  de|X)sitor  on  file  as  to  create  a  doubt 
or  misgiving  concerning  the  genuineness  of 
the  signatures  in  the  mind  of  a  competent 
and  reasonably  careful  bank  officer  when 
presented  by  a  person  unknown  to  him, 
and  that,  therefore,  the  bank  is  not  guilty 
of  negligence  in  failing  to  make  a  compari- 
son, is  a  conclusion  of  laAV  reviewable  by  the 
appellate  court,  and  not  a  finding  of  fact. 
Kellev  v.  Buffalo  Sav.  Bank,  180  N.  Y.  171, 
72  N.  E.  995,  63:  317 

830.  That  questions  raised  by  exceptions 
to  instructions  and  to  refusals  to  instruct 
are  the  same  as  would  be  raised  by  a  mo- 
tion to  dismiss  the  complaint  will  not  pre- 
clude the  court  of  appeals  from  considering 
them  after  unanimous  affirmance  by  the  ap- 
pellate division  where  there  was  no  request 
for  direction  of  a  verdict  or  nonsuit,  since 
the  constitutional  provision  which  precludes 
that  court  from  looking  into  the  record  to 
see  if  there  is  any  evidence  to  support  the 
verdict  equally   precludes   looking  into  the 


evidence  to  see  whether  or  not  the  propo- 
sition requested  to  be  charged  Miould  logical- 
ly bave  been  fatal  to  the  disposition  of  a 
motion  for  nonsuit  or  for  direction  of  a 
verdict,  McGuire  v.  Bell  Teleph.  Co,  167 
N.  Y,  208,  60  N.  E.  433,  52:  437 

840.  The  New  York  court  of  appeals  can- 
not draw  the  inference  of  fraud  in  the  first 
instance  for  the  purpose  of  supporting  a 
judgment  which  does  not  proceed  upon  that 
ground,  even  though  there  is  evidence  which 
would  permit  such  inference,  if  there  is 
also  evidence  negativing  its  existence.  Cle- 
mans  v.  Supreme  Assembly  R.  S.  of  G.  F. 
131  N.  Y.  485,  30  N.  E.  496,  16:  33 

m.  What  Errors  Warrant  Reversal, 
1.  In  General. 

Errors  Waived  or  Cured  below,  see  supra, 

VII,  k. 
Failure  to  Appoint  Guardian  ad  Litem  for 

Infant,  see  Infants,  110, 
See  also  supra,  214;  infra,  1188,  1189. 
For  Editorial  Notes,  see  infra,  XI.  §  14. 

841.  Error  without  prejudice  is  no  ground 
for  reversal.  Huron  v.  Second  Ward  Sav. 
Bank,  30  C,  C.  A,  38,  57  U.  S,  App,  593,  86 
Fed,  272,  49:  534 

Southern  P.  Co.  v.  Schoer,  52  C.  C.  A.  268, 
114  Fed.  466,  57:  707 

St.  Louis,  A.  &  T,  R.  Co.  v.  Triplett,  54 
Ark.  289.  15  S,  W.  831,  16  S.  W.  206, 

11:773 

Bergin  v.  Southern  New  England  Teleph. 
Co.  70  Conn.  54.  38  Atl.  888,  3y:  192 

Hartford  F,  Ins,  Co.  v.  Redding,  47  Fla, 
228,  37  So,  62,  67:518 

John  V,  Farwell  Co.  v.  Josephson,  96  Wis. 
10,  70  N.  W,  289,  71  N,  W.  109,  37:  138 

842.  A  correct  verdict  will  not  be  set 
aside  because  of  errors  occurring  on  the  trial. 
Krantz  v.  Rio  Grande  W.  R.  Co.  12  Utah, 
104,  41  Pac.  717,  30:  297 

843.  A  verdict  will  not  be  set  aside  be- 
cause of  minor  errors  of  law,  where  the 
charge  of  the  court  on  the  principal  ques- 
tion in  the  case  necessarily  controlled  the 
verdict.  Little  v.  Southern  R.  Co.  120  Ga. 
347,  47  S.  E.  953,  66:  509 

844.  Prejudicial  error  must  be  made  af- 
firmatively to  appear  in  ord»r  to  cause  the 
reversal  of  a  judgment.  Franke  v.  Mann, 
106  Wis.  118,  81  N.  W.  1014,  48:  856 

845.  A  special  verdict  does  not  cure  mate- 
rial errors  imless  it  affirmatively  shows 
with  decisive  clearness  that  they  did  no 
harm.  Bowlus  v.  Phoenix  Ins.  Co.  133  Ind. 
106,  32  N.  E.  319,  20:  400 

846.  Failure  to  show  that  a  designated 
person  was  regularly  appointed  shorthand 
reporter  to  take  the  testimony  of  an  ac- 
cused before  a  committing  magistrate  will 
not  support  an  assignment  of  error  if  it 
does  not  appear  that  he  acted  or  reported 
the  testimony  or  certified  to  it.  People  v. 
Ebanks.  117  Cal,  652,  49  Pac.  1049,      40:  269 

847.  The  failure  to  specify  in  the  order 
of  record  granting  a  new  trial  the  ground 
on  which  it;  was  granted,  as  required  by  Mo. 
Rev.   Stat,    1889,   §   2241,   is  not   reversible 


104 


APPEAL  AND  ERROR,  VII.  m,  2. 


error.     Smith   v.   Sedalia,   152  Mo.   283,   53 
S.  W.  907,  48:  711 

848.  In  an  action  for  damages  for  person- 
al injuries,  if  the  declaration  ^hows  the  ju- 
risdiction of  the  court,  and  no  plea  in  abate- 
ment has  been  filed,  the  judgment  will  not 
be  reversed  for  want  of  prooi  of  the  venue 
as  laid.  Snyder  v.  Philadelphia  Co.  54  W. 
Va.  149,  46  S.  E.  366,  63:  896 

849.  The  omission  to  allege  or  prove  an 
offer  to  return  benefits  received  undef  an 
agreement  for  a  release  is  not  prejudicial 
error  on  appeal,  where  the  point  was  rtot 
made  in  the  trial  court  and  the  benefits 
were  accounted  for  in  the  judgment.  Gi- 
rard  v.  St.  Louis  Car- Wheel  Co.  123  Mo.  358. 
27  S.  W.  648,  25:  514 

850.  Applause  at  the  conclusion  of  the  ad- 
dress by  the  prosecuting  attorney,  which 
was  not  connived  at  by  the  prosecution,  and 
was  quickly  suppressed  and  rebuked  by  the 
judge,  is  not  ground  for  reversal  where  the 
record  fails  to  show  that  it  prejudiced  the 
defendant.  Debney  v.  State,  45  Neb.  856, 
64  N.  W.  446,  34:  851 

851.  An  order  for  a  new  trial  on  plaintiff's 
motion,  even  if  inadvertently  granted  as  to 
one  of  the  defendants,  whose  right  to  an 
undivided  half  of  real  property  in  dispute 
was  admitted  to  be  as  the  judgment  deter- 
mined it,  must  be  reversed  as  to  him.  Lee 
v.  Fletcher,  46  Minn.  49,  48  N.  W.  456, 

12:  171 
Failure  to  summon  jury. 

852.  The  error  of  the  chancellor  in  failing 
to  summon  a  jury  to  inquire  into  the  in- 
competency of  the  complainant  in  a  suit 
brought  by  his  next  friend  to  set  aside  a 
conveyance,  jvhere  he  denies  his  incompe- 
tency and  asks  for  the  dismissal  of  the 
suit,  being  prejudicial  to  him  alone,  may  be 
disregarded  on  appeal  when  sudi  person  has 
died,  and  his  heirs  have  been  substituted 
and  ask  for  the  affirmance  of  the  judgment. 
Howard  v.  Howard,  87  Ky.  616,  9  S.  W.  411, 

1:  610 
Parties. 

853.  An  error,  if  any,  in  bringing  an  ac- 
tion in  the  corporate  name  of  a  c?hurch,  in- 
stead of  in  the  name  of  its  trustees,  is  im- 
material, as  the  appellate  court  will  direct 
the  substitution  of  the  trustees  as  plaintiffs. 
Chicago  G.  W.  R.  Co.  v.  First  M.  E.  Church, 
42  C.  C.  A.  178,  102  Fed.  85,  50:  488 
Costs. 

854.  Error  in  refusing  to  retax  costs  after 
rendition  of  a  judgment  is  no  groimd  for 
reversal  of  the  judgment.  Mobile  TranSp. 
Co.  v.  Mobile,  128  Ala.  335,  30  So.  645, 

64:  333 
Consolidation  of  actions. 

855.  The  improper  consolidation  of  sever- 
al actions  attacking  deeds  of  a  decedent  is 
ground  of  reversal  where  the  defendants 
therein  were  thereby  deprived  of  the  right 
to  each  other's  testimony.  Smith  v.  Smith, 
22  Colo.  480,  46  Pac.  128,  34:  49 

2.  As  to  Pleadings. 

Errors  Waived  or  Cured  below,  see  supra, 
VII.  k,  2. 


856.  Exceptions  as  to  issues  are  unten%bl» 
where  the  party  making  them  was  not  de- 
prived of  the  opportunity  to  present  any 
view  of  the  law  arising  out  of  the  testi- 
mony. Bass  V.  Roanoke  Nav.  &  W.  P.  Co. 
Ill  N.  C.  439,  16  S.  E.  402,  19:  247 

857.  Permitting  the  signature  of  the  clerk 
and  master  of  the  court  to  be  affixed  to  the- 
jurat  of  an  answer  on  the  trial  of  the  case 
and  before  the  answer  is  read,  "on  counsel's 
statement  that  it  has  been  sworn  to  before 
such  officer,  instead  of  on  the  evidence  of  the 
officer  himself,  is  not  reversible  error  unless 
it  appears  that  the  evidence  so  accepted  has 
led  the  Chancellor  aside  from  the  truth  to- 
the  injury  of  the  litigant  affected  thereby. 
Royston  v.  McCulley  (Tenn.  Ch.)  59  S.  W. 
725,  52:  899 

858.  Only  the  entire  absence  of  a  material 
fact  in  a  complaint  will  make  it  insufficient 
on  appeal  to  sustain  a  judgment  on  the 
merits.  Bates  v.  Babcock,  95  Cal.  479,  3lV 
Pac.  605,  16:  745. 

859.  A  judgment  in  a  suit  to  set  aside  Uwr 
cancelation  of  a  policy  of  insurance  and  t<> 
recover  the  amount  thereof  will  not  be  re- 
versed when  it  is  for  the  precise  sum  which 
plaintiff  could  have  recovered  at  law,  be- 
cause he  asked  for  equitable  relief,  which 
was  not  necessary  to  his  recovery.  Duncan 
V.  New  York  Mut.  Ins.  Co.  138  N.  Y.  88, 
33  N.  E.  730.  ■  20:  38(> 

840.  A  verdict  in  favor  of  a  railway  pas- 
senger to.  compensate  him  for  injuries  'ta 
his  arm  caused  by  contact  with  a  bridge 
abutment  cannot  be  sustained  on  appeal 
after  the  striking  of  a  count  alleging  that 
he  voluntarily  placed  his  arm  out  of  the- 
car  window,  if  the  other  counts  allege  that 
it  was  flung  out  by  a  lurch  of  the  car  causetl 
by  one  rail  being  lower  than  the  other,  and 
the  evidence  shows  only  Va  inch  difference- 
in  the  height  of  the  rails,  that  the  window 
was  15  feet  from  the  abutment,  which  wa» 
not  touched  by  the  car,  and  the  body  of  no 
passenger  was  moved  from  its  position,  the 
allegation  being  so  improbable  in  view  of  the 
evidence  that  the  stricken  count  must  have- 
influenced  the  verdict.  Richmond  &  D.  R. 
Co.  V.  Scott,  88  Va,  958,  14  S.  E.  763,    16:  91 

861.  The  allowance  of  bad  pleas  is  harm- 
less error,  if  no  evidence  is  given  under 
them.  Tower  v.  Whip,  53  W.  Va.  158,  44 
S.  E.  179,  63:  93? 

862.  A  decree  in  a  cause  in  which  the  par- 
ties, after  plea  is  filed  and  set  down,  fail 
to  bring  it  on  for  hearing,  and  proceed  to 
take  testimony  as  to  the  merits  of  the  plea, 
and  further  bring  the  case  on  for  hearing, 
will  not  be  reversed  unless  there  is  error  on 
the  merits.  Stackpoie  v.  Hancock,  40  Fia. 
362,  24  So.  914,  45:  814 

863.  The  omission  of  the  noneollusion 
clause  from  a  cross-bill  in  a  divorce  suit  is- 
not  fatal  on  appeal,  but  the  court  may  al- 
low it  to  be  supplied.  Glutton  v.  Glutton, 
108  Mich.  267,  06.- N.  W.  52,  31:  160- 

864.  Failure  to  dispose  of  a  special  plea 
is  not  ground  for  reversal  if  the  same  de- 
fense was  available 'imder  the  other  plead- 
ings. Taylor  v.  Branham,  35  Fla.  297,  17  So. 
552,  39:  362 


APPEAL  AND  ERROR.  VII.  m^  2. 


105 


865.  Refusal  to  permit  the  filing  of  addi- 
tional defenses  to  certain  counts  in  the  dec- 
laration is  not  error  when  the  counts  i„rc 
t  reated  as  out  of  the  case.  Hygeia  Distilled 
Water  Co.  v.  Hygeia  Ice  Co.  72  Conn.  640, 
45  Atl.  957,  49:  147 
Exceptions. 

Krrors  Waived  below,  see  supra,  685. 

866.  Error  in  sustaining  exceptions  to 
portions  of  an  answer  is  immaterial,  if  the 
averments  excluded  could  not  have  changed 
the  result.  Smith  v.  McDowell  ex  rel.  Hall, 
148  111.  51,  35  N.  E.  141,  22:  393 
Rulings  on  demurrer. 

lOrrors   Waived  or  Cured  below,   see   supra, 

686-690. 
See  also  infra,  887. 

867.  If  a  party  whose  pleading  is  de- 
murred to,  instead  of  applying  for  leave  to 
amend,  procures  a  ruling  in  his  favor,  he 
does  go  at  his  peril  that  sueh  ruling  will  be 
reversed  on  appeal.  Johnson  v.  Robinson 
C'onsol.  Min.  Co.   13  Co.o.  258,  22  Pac.  459, 

5:  769 

868.  Error  in  overruling  a  demurrer  to  a 
bad  answer  will  require  reversal  unless  it 
dearly  appears  from  the  record  that  iio 
harm  was  done  plaintiff.  Bowlus  v.  Phoenix 
Ins.  Co.  133  Ind.  106,  32  N.  E.  319,      20:  400 

809.  Overruling  a  demurrer  to  a  bad  par- 
agraph of  a  complaint  is  not  available  error 
if  the  judgment  rests  on  a  good  paragraph. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Moore, 
152  Ind.  345,  53  N.  E.  290,  419,  44:  638 

870.  Sustaining  a  demurrer  to  a  plea  is 
not  prejuuicial  error,  if  other  pleas  gave 
<lefendant  the  same  advantage  that  he  could 
have  had  under  the  former.  Kansas  City, 
M.  &  B.  R.  Co.  v.  Higdon,  94  Ala.  286,  10 
So.  282,  14:  515 

871.  Sustaining  a  demurrer  to  special  de- 
fenses is  not  prejudicial  error,  when  defend- 
iint  has  had  the  benefit  on  the  trial  of  all 
<'vi(lcnp<'  that  could  have  been  introduced 
under  those  defenses,  i'latt  Bros.  &  Co.  v. 
Waterbury,  72  Conn.  531,  45  Atl.  154. 

48:  691 

872.  Sustaining  a  demurrer  to  one  para- 
graph of  an  answer  is  not  cause  for  reversal, 
if  the  api>ellaut  could  avail  himself  of  the 
same  defense  under  the  paragraph  remain- 
ing. Wohlford  V.  Citizens.  Bldg.  L.  &  S. 
Asso.  140  Ind.  662,  40  N.  E.  694,         29:  177 

Lucas  V.  Herbert,  148  Ind.  64,  47  K.  E. 
146,  37.  376 

873.  Sustaining  a  demurrer  to  a  plea  in 
an  action  for  negligent  injuries,  which  al- 
leges that  thoy  were  committed  by  a  third 
person,  is  not  error  where  there  is  also  a 
plea  of  the  general  issue,  since  the  plea  de- 
murred to  amounts  merely  to  the  general 
issue,  llagerstown  v.  Klotz,  93  Md.  437, 
49  Atl.  830,  54:  940 

874.  Error  in  overruling  demurrers  to  cer- 
tain paragraphs  of  an  answer  is  immaterial 
where  the  same  evidence  could  be  introduced 
and  the  same  facts  found  under  the  general 
denial  as  luider  those  paragraphs  of  the 
answer,  and  there  is  a  special  finding  of 
facts  which  controls  the  judgment.  Walling 
V.  Burgess,  122  Ind.  299,  309,  22  N.  E.  419, 
23  N.  E.  1076,  7:  481 


875.  An  erroneous  ruling  in  sustaining  a 
demurrer  to  a  cross  bill  is  harmless  where 
all  the  facts  and  circumstances  a.leged  in 
such  cross  bill  were  brought  before  the  court 
so  as  to  show  that  such  cross  bill  could  not 
have  been  maintained  upon  the  facts.  Dun- 
ham v.  Dunham,  162  111.  589,  44  N.  E.  841, 

35:  70 

876.  Error  in  sustaining  a  demurrer  of 
a  party  disclaiming  any  interest  in  the  liti- 
gation is  not  sufficient  to  justify  a  reversal 
and  remanding  of  the  cause  for  the  purpose 
of  allowing  him  to  answer.  Harding  v. 
American  Glucose  Co.  182  111.  551,  55  N.  E. 
577,  64:  738 

877.  A  statute  forbidding  reversal  of  a 
judgment  when  it  shall  appear  that  the 
merits  of  the  case  have  been  fairly  tried  and 
determined  cannot  be  applied  in  case  of  the 
erroneous  sustaining  of  a  demurrer  to  the 
affirmative  matter  in  a  paragraph  of  the 
answer,  when  the  efi'ect  was  to  exclude 
evidence  of  the  matters  therein  alleged,  so 
that  it  is  impossible  to  determine  from  the 
record  how  far  defendant  was  prejudiced  by 
the  ruling.  Barnard  v.  Shirley,  135  Ind. 
547,  34  N.  E.  600,  35  N.  E.  117,  24:  568 

878.  The  erroneous  overruling  of  a  demur- 
rer to  a  bad  paragraph  of  a  complaint  re- 
quires a  reversal,  if  it  is  not  shown  by  the 
record  proper  that  the  judgment  rests  on  a 
good  paragraph,  'i'erre  Haute  &  T.  R.  Co. 
v.  Sherwood,  132  Ind.  129,  31  N.  E.  781, 

17:33» 

879.  Where  a  defendant  was  totally  de- 
prived of  his  defense  by  the  action  of  the 
court  in  first  sustaining  a  demurrer  to  his 
answer,  which  set  up  a  contract  for  the  sole 
agency  of  the  goods  purc'hased  by  him,  and 
a  breach  thereof  by  plaintiffs,  and  then,  on 
his  amended  answer  setting  up  the  invalid- 
ity of  the  contract  as  an  absolute  defense, 
making  a  ruling,  after  the  case  as  submit- 
ted on  the  pleadings,  to  the  effect  that  the 
contract  was  valid,  although  the  latter  rul- 
ing was  correct  the  judgment  will  be  re- 
versed. Newell  V.  Meyendorff,  9  Mont.  254, 
23  Pac.  333,  8:  440 

880.  Failure  to  pass  upon  a  demurrer  to  a 
defense,  and  entering  judgment  for  plaintiff 
on  the  pleadings,  is  not  prejudicial  to  de- 
fendant when  the  defense  was  insufficient 
and  the  defect  sueh  that  it  could  not  have 
been  cured  by  amendment.  Kindel  v.  Beck 
&  P.  Lithographing  Co.  19  Colo.  310,  35  Pac. 
538,  24:  311 
Amendments. 

881.  Refusal  to  allow  a  pleading  to  be 
amended  during  trial  will  not  be  groimd  for 
reversal,  where  no  abuse  of  discretion  or 
necessity  to  amend  is  shown.  York  v.  Stew- 
ard, 21  Mont.  515,  55  Pac.  29,  43:  125 

882.  Refusal  to  permit  an  amen^ent  of 
a  complaint  for  detention  of  property  so  as 
to  claim  damages  is  not  prejudicial  where 
the  right  to  recover  the  property  is  denied 
by  the  judgment.  National  Steamship  Co. 
V.  Sheahan,  122  N.  Y.  461,  25  N.  E.  858, 

10:  'ib-1 

883.  A  defendant  cannot  urge  that  he  was 
prejudiced  by  an  amendment  of  the  com- 
plaint, when  it  was  made  on  condition  that 


1C6 


APPEAL  AND  ERROR,  VII.  m,  3. 


lie  be  given  sufficient  time  to  prepare  to 
meet  th^  issues  as  amended,  and  he  subse- 
(juentiy  announced  himself  i"eady  and  pro- 
ceeded to  trial  on  tlie  amended  pleadings. 
McCabe  v.  ^tna  Ins.  Co.  9  i\.  D.  19,  81  N. 
W.   420,  47:  641 

Striking  out. 

884.  An  erroneous  order  striking  from  the 
files  a  bill  of  review  -will  not  be  reversed 
unless  it  is  prejudicial.  Wood  v.  Wood,  59 
Ark.  441,  27   S.   W.   641,  28:  157 

885.  Striking  a  paragraph  from  a  com- 
plaint on  motion  is  not  reversible  error,  if 
it  was  not  sufficient  to  authorize  a  recovery. 
Braithwaite  v.  Harvev,  14  Mont.  208,  36 
Pac.  38,  "  27:  101 

880.  Technical  error  in  refusing  to  strike 
out  mere  probative  matter  from  a  com- 
plaint is  not  groun.i  for  reversal.  Sloane  v. 
Southern  Cal.  R.  Co.  Ill  Cal.  668,  44  Pac. 
320,  32:  193 

887.  A  judgment  will  not  be  reversed  be- 
cause the  sufficiency  of  an  answer  was  test- 
ed by  Avhat  was  called  a  motion  to  strike, 
instead  of  by  demurrer,  although  the  prac- 
tice is  improper,  where  the  motion  has  been 
treated  by  the  parties  as  in  effect  a  de- 
murrer. Wisconsin  Lumoer  Co.  v.  Greene  & 
W.  Teleph.  Co.  127  Iowa.  350,  101  N.  W.  742, 

69:  968 
Criminal  cases. 
Errors  Cured  below,  see  supra,  675. 

888.  A  judgment  entered  on  general  ver- 
dict of  guilty  upon  an  information  for  prac- 
tising medicine  without  a  license,  one  count 
of  wliieh  is  good  and  sustained  by  the  evi- 
dence, will  not  be  set  aside  on  appeal  be- 
cause some  counts  of  the  information  are 
insufficient.  Parks  v.  State,  159  Ind.  211, 
64  N.  E.  862,  59:  190 

3.  As  to   Evidence. 

o.  Erroneous  Admission. 

(1)   In  General;  Various  Particular  Matters. 

Errors  as  to.   Waived  or  Cured  below,  see 
supra,  ^^I.  k,  3;  infra,  VII.  m,  3,  a,  (5). 
See  also  Evidence,   1934. 

889.  jMaterial  evidence  erroneously  admit- 
ted will  not  be  hold  harmless  unless  the 
other  evidence  in  favor  of  the  verdict  so 
greatly  preponderates  that  a  contrary  ver- 
dict would  be  sot  aside  by  the  court  as  con- 
trary to  the  evidence.  Ke  Evsaman's  Will, 
113  N.  Y.  02,  20  X.  E.  613,      '  3:  599 

890.  Incompetent  evidence  on  a  material 
point  cannot  be  hold  harmless,  unless  the 
facts  which  it  tended  to  prove  wore  estab- 
lished by  contradictory  evidence.  Ohio  &  M. 
R.  Co.  V.  Stein,   133  Ind.  243,  31  X.  E.   ISO. 

19:  733 

891.  Where  tlicre  is  error  which  cannot  be 
said  to  bo  witliout  injury,  as  it  cannot  be 
where  testimony  contributing  to  the  weight 
of  evidence  on  a  pr.int  as  to  which  there  is 
conflict  of  testimony  has  been  erroneous'y 
admitted,  the  judgment  must  be  reversed. 
Simmons  v.  Spratt,  26  Fla.  449,  8  So.   123. 

9:  343 


892.  The  admission  of  improper  testimony 
will  e^use  the  reversal  of  a  case  if  it  might 
have  influenced  the  jury  in  arriving  at  their 
verdict,  although,  in  the  absence  of  such  tes- 
timony, the  appellate  court  might  have  sus- 
tained the  verdict  upon  the  other  facts 
proved  in  the  case.  Fordvce  v.  McCants,  51 
Ark.  509,  1  S.  W.  694,       '  4:  296 

893.  Permitting  incompetent  evidence 
tending  to  support  a  finding  to  go  to  the 
jury  over  objection  will  cause  a  reversal  of 
the  judgment,  where  the  other  evidence  in 
support  of  such  finding  is  not  of  a  satisfac- 
tory character.  Terre  Haute  &  I.  R.  Co.  v. 
Clem,  123  Ind.  15,  23  N.  E.  965,  7:  588 

894.  Improper  evidence  introduced  by  eva- 
sion of  an  adverse  ruling  will  be  presumed 
prejudicial.  Bank  of  Commerce  v.  Goos,  39 
Xeb.  437,  58  X.  W.  84,  23:  190 

895.  Proof  made  by  an  original  book  of 
records  cannot  be  prejudicial  merely  because 
the  proof  should  have  been  made  by  certified 
copy.  State  v.  Iloskins,  109  Iowa,  656,  80 
X.  W.  1063,  47:  223 

896.  Although  the  motion  for  the  produc- 
tion of  books  and  papers  is  defective,  or  the 
order  made  upon  it  too  broad,  yet,  if  such 
instruments  of  evidence  are  used  in  the 
mode  required  by  law  on  the  trial,  there  is 
no  prejudicial  error.  Cleveland,  C.  C.  &  1. 
R.  Co.  v.  Closser,  126  Ind.  348,  26  N.  E.  159, 

9:  754 

897.  The  admission  of  testimony  by  phy- 
sicians appointed  by  the  court  to  examine 
plaintiff  in  an  action  for  negligent  inju- 
ries, as  to  the  result  of  an  examination  made 
after  defendant's  motion  for  such  exami- 
nation was  withdrawn,  is  erroneous.  South 
Covington  &  C.  Street  R.  Co.  v.  Stroh,  23 
Ky.  L.  Rep.  1807,  66  S.  W.  177,  57:  875 

898.  The  admission  in  evidence  of  news- 
paper publications  and  proceedings  of  pub- 
lic bodies,  consisting,  in  the  main,  of  decla- 
rations and  statements  irrelevant  to  the  is- 
sue, and  manifestly  tending  to  inflame  the 
minds  of  the  jury,  is  prejudicial  error, 
though  containing  some  evidence  which, 
standing  alone,  might  be  proper.  Green  v, 
Ashland  Water  Co.  101  Wis.  258,  77  X.  W. 
722,  43:  117 

899.  Testimony  by  the  plaintiff  in  a  suit 
for  breach  of  promise  to  marry,  that  she 
supposed  a  phrase  in  one  of  defendant's 
letters  had  reference  to  getting  married, 
though  it  was  the  province  of  the  jury  to 
interpret  the  phrase,  does  no  injury  because 
it  is  inconclusive,  and  merely  gives  her  sup- 
position. Lewis  v.  Tapman,  90  Md.  294.  in 
Atl.  459,  47:  385 

900.  It  is  not  reversible  error  to  admit 
evidence  of  general  reputation  as  to  the  fi- 
nancial ability  of  a  prior  indorser  of  a  note, 
to  corroborate  testimony  by  the  holder  that 
his  indorser  waived  presentment  and  notice 
of  dishonor  of  the  note  to  him.  Coleman  v. 
Lewis,  183  Mass.  485,  67  X.  E.  603.     68:  4811 

901.  In  a  suit  by  the  wife  of  a  menil)er  of 
a  mutual  benefit  association,  who  is  tho 
beneficiary  named  in  the  certificate,  to  re- 
cover the  amount  of  the  death  benefit  named 
therein,  the  admission  in  evidence  by  the 
trial  judge  over  objection,  of  parol  declara- 


APPEAL  AND  ERROR.  VII.  m.  3. 


107 


'tions  of  the  secretary  to  the  plaintiff,  waiv- 
ing the  payment  or  assessments  for  death 
benefits  required  by  the  by-laws  until  such 
time  as  she  should  find  out  whether  her  hus- 
band was  dead  or  alive,  i3  error.  Kocher  v. 
Supreme  Council  C.  B.  L.  <N.  J.  Err.  &  App.) 
65  N.  J.  L.  649,  48  Atl.  544,  52:  861 

902.  Error,  if  any,  in  allowing  the  intro- 
duction in  evidence  of  a  deed  defective  be- 
cause executed  in  the  name  of  a  partnership 
simply,  and  not  signed  by  the  individual 
members  thereof,  is   immaterial   where  the 

•  deed  was  given  to  a  new  firm  composed  of 
the  members  of  the  partnership  and  one 
other,  who  afterwards  executed  a  deed 
signed  by  both  the  firm  and  the  individual 
members  thereof,  coveying  to  a  third  party 
the  property  described  in  the  first,  deed,  and 
the  question  at  issue  is  whether  title  to  the 
property  has  passed  out  of  the  grantors  in 
the  first  deed  into  the  grantees  in  the  second 
deed.  McRae  v.  Still  well,  111  Ga.  65,  36  S. 
E.  604,  65:  513 

903.  Evidence  in  rebuttal,  which  further 
refers  to  repairs  made  by  a  railroad  com- 
pany to  an  alleg'sd  defective  fence  after  an 
accident,  will  net  require  reversal,  if  the 
company  first  gave  evidence  of  such  repairs. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Reesman,  9 
-C.  C.  A.  20,  19  U.  S.  App.  596,  60  Fed.  370, 

23:  768 

904.  A  person  on  trial  for  collecting  fic- 
titious claims  against  a  county  is  not  pre- 
judiced by  the  admission  in  evidence  of 
claims  actually  filed  by  him,  although  they 
were  not  properly  authenticated,  and  were 
therefore  incompetent,  had  the  proper  ob- 
jection been  made.  State  v.  Brady,  100 
Iowa,  191,  69  N.  W.  290,  36:  693 

905.  The  admission  of  incompetent  evi- 
dence will  not  be  held  to  be  nonprejudicial 
"to  defendant  in  an  action  to  enjoin  an  ele- 
vated raiload  company  from  operating  its 
road  until  it  pays  the  damage  done  to  an 
abutting  property  owner,  because  the  com- 
pany is  not  bound  to  pay  the  ascertained 
damages  to  acquire  the  easement,  but  may 
submit  to  the  injunction  and  proceed  to  ac- 
quire the  right  bv  eminent  domain.  Roberts 
V.  New  York  Elev.  R.  Co.  128  N.  Y.  455, 
28  N.  E.  486,  13:  499 
Erroneous  reason. 

906.  The  admission  of  evidence  which  was 
not  objectionable  for  the  reason  urged 
against  it  will  not  be  ground  for  reversal, 
even  if  the  reason  urged  for  its  admission 
may  be  erroneous.  Jenney  Electric  Co.  v. 
Branham,   145  Ind.  314,  41   N.  E.  448, 

33:  395 
Criminal  cases. 

907.  It  is  not  prejudicial  error  to  admit 
against  one  on  trial  for  murder  the  whole 
of  a  conversation  in  which  some  of  his  re- 
plies had  a  tendency  to  show  guilt,  while 
others  were  explicit  denials  of  guilt.  Com. 
V.  Trefethen,  157   Mass.   180,  31  N.  E.  961, 

24:  235 

908.  Evidence  of  the  commission  of  an  of- 
fense at  different  times  will  not  require  the 
reversal  of  a  conviction  where  the  offense  is 
■a  continuous  one  and  all  prior  violations  are 


barred  by  the  conviction.  Townsend  v. 
State,  147  Ind.  624,  47  N.  E.  19,  37:  294 

909.  Although  in  a  murder  trial  the  proof 
of  the  murder  is  abundant,  yet  the  admis- 
sion of  evidence  that  defendant,  a  short 
time  after  the  killing,  committed  rape  upon 
the  wife  of  the  deceased,  no  apparent  con- 
nection being  shown  between  the  two 
crimes,  is  such  error  as  calls  for  a  rever- 
sal, the  tendency  of  such  evidence  being  to 
destroy  any  feeling  of  mercy  which  might 
otherwise  have  existed  in  the  minds  of  the 
jurv.  Farris  v.  People,  129  111.  521,  21  N.  E. 
'821,  4:582 

910-911.  It  is  not  error  to  admit  evidence 
of  comparisons  of  bills  presented  against 
him  in  an  equity  case  and  those  found  on 
the  bill  file  of  one  accused  of  obtaining  prop- 
erty by  false  pretenses,  although  evidence 
of  the  private  bill  file  was  not  proper  evi- 
dence in  the  case,  if  no  motion  had  been 
made  to  strike  it  out.  Blum  v.  State,  94 
Md.  375,  51  Atl.  26,  56:  322 

(2)  Immaterial;  Admitted  or  Uncontrovert- 
ed  Facts. 

912.  Irrelevant  testimony  will  not  require 
a  reversal,  if  it  was  harmless.  Mack  v. 
South  Bound  R.  Co.  52  S.  C.  323,  29  S.  E. 
905,  40:  679 

913.  Error  in  admitting  evidence  to  estab- 
lish immaterial  facts  incorporated  in  special 
findings  does  not  require  reversal.  Lajnson 
V.  Beard,  36  C.  C.  A.  56,  94  Fed.  30,  45:  822 

914.  An  error  in  admitting  testimony 
which  was  immaterial  upon  any  of  the  is- 
sues submitted,  and  which  affected  no  sub- 
stantial right,  is  not  ground  of  reversal. 
Kircher  v.  Milwaukee  ;^Iecha•nics  Mut  Ins. 
Co.  74  Wis.  470,  43  N.  W.  487,  5:  779 

915.  Evidence  of  the  suffering  of  the  moth- 
er on  account  of  a  son's  death,  for  which 
action  is  brought,  is  not  prejudicial  error  on 
the  ground  that  the  damages  belong  to  the 
father  only,  as  it  is  immaterial  to  the  de- 
fendant how  they  are  distributed.  Norfolk 
&  W.  R.  C?.  v.  Stevens,  97  Va.  631,  34  S.  E. 
525,  46:  367 

916.  Thfc  admission  of  evidence  of  a  con- 
versation between  the  maker  and  payee  of 
a  note  as  to  the  law  by  which  it  shall  be 
governed,  which  took  place  in  the  absence  ot 
the  surety,  is  not  reversible  error  upon  com- 
plaint of  the  surety,  where  the  conversation 
merely  corroborated  the  effect  of  the  con- 
tract itself,  and  there  was  no  evidence  to 
the  contrary,  (^arrigue  v.  Keller,  164  Ino. 
676,  74  N.  E.  523,  69:  870 

917.  If  no  evidence  was  introduced  tending 
to  suppoi't  a  counterclaim,  error  of  a  court 
in  basing  its  finding  against  the  counter- 
claim on  its  judicial  notice  of  tlie  record  in 
another  cause,  wliich  record  is  not  in  evi- 
dence, will  not  cause  a  reversal  of  the  judg- 
ment. Stanley  v.  McElrath,  86  Cal.  449,  25 
Pac.  16,  10:  545 

918.  The  admission  of  incompetent  dec- 
larations of  an  employee  of  a  railroad  com- 
pany, in  an  actiop  against  it  for  damages 
for  injuries  to  stock  transported  by  it,  is 
immaterial  error  where  the  facts  stated  by 
such  employee  are  not  in  controversy.    At- 


108 


chison,  T.  &  S.  F.  R.  Co.  v.  Temple,  47  Kan. 
7,  27  Pac.  98,  13:  362 

(3)  Facts   Otherwise  Proved. 

919.  The  admission  of  incompetent  evi- 
dence does  not  constitute  reversible  error 
when  without  the  evidence  the  decision 
must  have  been  the  same.  Barber  Asphalt 
Paving  Co.  v.  French,  158  Mo.  534,  58  S.  W. 
934,  54:  492 

920.  A  judgment  will  not  be  reversed  be- 
cause of  the  admission  of  incompetent  evi- 
dence, where  there  is  sufficient  uncontra- 
dicted and  admissible  evidence  to  uphold  it. 
Re  Crawford,  113  N.  Y.  560,  21  N.  E.  69^, 

5:  71 

Parsons  v.  New  York  C.  &  H.  R.  R.  Co. 

113  N.  Y.  355,  21  N.  E.  145,  3:  683 

921.  The  admission  of  an  answer  to  a 
question  whieh,  as  propoimded,  is  too  broad, 
is  not'  reversible  error  if,  irrespective  of 
such  answer,  there  is  ample  testimony  to 
sustain  the  finding  of  the  jurv.  Bergh  v. 
Herring-Hall-Marvin  Safe  Co.  136  Fed.  368, 

70:  756 

922.  The  admission  of  evidence  for  the 
purpose  of  proving  the  identity  of  goods 
delivered  to  and  lost  by  a  common  carrier, 
in  an  action  brought  to  recover  damages  for 
such  loss,  will  not,  although  improperly  ad- 
mitted, cause  a  reversal  of  a  judgment 
against  the  carrier,  if  the  identity  of  the 
goods  was  sufficiently  established  by  other 
testimonv  in  the  case.  Browning  v.  Good- 
rich Transp.  Co.  78  Wis.  391,  47  N.  W.  428, 

10:  415 

923.  The  admission  of  an  action  for  dam- 
ages for  the  destruction  of  property  by  fire 
set-  by  locomotive,  of  a  statement  made  oy 
the  witness  at  the  time  of  the  fire,  that  if 
there  were  any  coals  under  the  plank  walk 
there  would  be  a  blaze,  though  error,  is  not 
prejudicial  where  the  correctness  of  the  re- 
mark is  .shown  by  other  testimony.  Jack- 
sonville, T.  &  K.  W.  R.  Co.  V.  Peninsular 
Land;  T.  &  Mfg.  Co.  27  Fla.  1,  157,  2  So.  661, 
9  So.  089,  17:  33 

924.  Allowing  a  witness  to  give  an  opin- 
ion as  to  negligence  is  not  ground  for  re- 
versal, if  the  facts  were  fully  shown  and 
the  negligence  fully  proved  by  other  evi- 
dence. Giraudi  v.  Electric  Improv.  Co.  107 
Cal.  120,  40  Pac.  108,  28:  596 

925.  Error  in  permitting  consignees  of 
dressed  poultry  to  give  their  opinions  that 
nothing  was  omitted  to  be  done  towards  the 
proper  handling  of  the  poultry  by  them 
alter  receiving  it,  and  that  delay  in  deliv- 
ery was  not  caused  by  anything  they  did 
or  failed  to  do,  does  not  require  reversal 
of  a  judgment  against  the  carrier  for  loss 
caused  oy  delay  in  transportation,  where  it 
appears,  from  uncontradicted  facts  in  the 
record,  that  the  opinions  were  correct. 
Pennsylvania  R.  Co.  v.  Naive,  112  Tenn. 
239,  79  S.  W.  124,  64:  443 

920.  To  permit  an  answer  by  an  expert  on 
a  hypothetical  question  a&  to  insanity,  em- 
bracing only  the  evidence  of  one  party,  is 
not  reversible  error  if  both  parties  subse- 
quently submit  and  obtain  answers  to  ques- 


APPEAL  AND  ERROR,  VII.  m,  3. 


tions  containing  all  the  evidence.  Burt  Vi. 
State,  38  Tex.  Crim.  Rep.  397,  40  S.  W. 
1000,  43  S.  W.  344,  39:  305- 

927.  A  ruling  by  a  referee  that  the  pe- 
tition in' a  case  be  taken  as  true  becauso  of 
the  defendant's  failure  to  produce  book* 
and  papers  and  answer  interrogatories  i» 
not  reversible  error,  where  plaintiff's  evi- 
dence establishes  the  facts  pleaded  without 
conflict  and  defendant  introduces  no  evidence 
whatever.-  Cook  v.  Chicago,  R.  I,  &  P.  R. 
Co.  81  Iowa,  551,  46  N.  W.  1080,         9:  764 

928.  Permitting  a  paper  to  be  read  in  evi- 
dence which  -was  set  out  in  the  complaint, 
and  thus  made  a  part  of  the  record  in  the 
cause,  cannot  be  detrimental  to  the  objecting 
party  so  as  to  constitute  reversible  error. 
Citizens  Street  R.  Co.  v.  Robbins,  128  Ind. 
449,  26  N.  E.  116,  12:  498- 

(4)  Witnesses  and  Their  Examination. 

Instructions  as  to  Credibility  of  Witnesses^ 
see  Trial,  711-724. 

929.  A  judgment  will  not  be  reversed  be- 
cause an  improper  question  is  asked,  if  no- 
inadmissible  evidence  is  obtained  in  answer 
to  it.    State  v.  Burbee,  65  Vt.  1,  25  Atl.  964. 

19:  145- 

930.  Erroneously  permitting  an  expert  ta 
give  his  opinion  on  a  question  which  the 
jury  should  decide  without  such  aid  will  not 
cause  a  reversal,  if  the  opinion  was  correct,, 
and  expressed  the  conclusion  which  the  jury 
must  necessarily  have  drawn  from  the  facts- 
in  evidence.  Fisher  v.  Oregon  S.  L.  &  U.  N^ 
R.  Co.  22  Or.  533,  30  Pac.  425,  16:519- 

931.  An  error  in  permitting  a  question  to- 
be  asked  which  calls  for  the  opinion  of  the- 
witness,  involving  a  mixed  question  of  law 
and  fact  as  to  the  depreciation  in  the  mar- 
ket value  of  property  from  certain  causes, 
is  harmless  where  the  answer  of  the  witness 
is  equivalent  to  stating  the  value  of  the- 
property  before  and  after  the  alleged  causes 
existed,  and  that  the  causes  of  the  de- 
crease are  those  enumerated.  Gainesville,. 
H.  &  W.  R.  Co.  V.  Hall,  78  Tex.  169,  14  S. 
W.  259,  9:  29». 

932.  The  refusal  of  the  court  to  allow  a. 
witness  on  his  re-examination  to  answer  a 
question  whether  or  not  he  had  recovered  a 
judgment  against  the  defendant,  where  on 
cross-examination  he  had  been  asked  if  hfr 
had  not  a  controversy  with  the  defendant, 
sufficiently  protects  the  defendant's  right» 
as  against  an  objection  to  the  question. 
Kentucky  C.  R.  Co.  v.  Smith,  93  Ky.  449,. 
20  S.  W.  392,  18:  6;t 
Leading  questions. 

933.  No  reversal  will  be  granted  for  the 
allowance  of  leading  questions  unless  there- 
has  been  a  manifest  abuse  of  discretion. 
White  V.  White,  82  Cal.  427,  23  Pac.  276, 

7:  799 
Examination   of   witness;    physical    exami- 
nation. 

934.  There  will  be  no  reversal  for  cross-ex- 
amination as  to  matters  not  testified  to  in 
chief  if  the  examination  in  chief  is  not  ivk 
the  record;  so  that  it  does  not  appear  wheth- 


APPEAL   AND  ERROR,  VII    m,  3. 


K-O 


er  the  cross-examination  was  improper  or 
mot.  People  v.  Ebanks,  117  Cal.  052,  49 
Pac.   1049,  40:  269 

1)35.  Allowing  the  plaintiff  in  an  action 
for  personal  injuries  to  exhibit  her  actual 
condition  to  the  jury  by  lying  oi>  a  lounge, 
with  her  physician  attending  her.  when  her 
testimony  is  taken,  and  allowing  her  daugh- 
ter to  weep,  is  not  ground  of  reversal,  feci- 
leck  V.  Janesville,  100  Wis.  157.  75  N.  W. 
•975,  41:  563 

936.  If  a  proper  case  for  granting  a  mo- 
tion for  the  surgical  examination,  by  ex- 
perts, of  the  person  of  one  seeking  to  recover 
for  personal  injuries,  is  clearly  made  out, 
and  the  motion  is  refused,  the  appellate 
court,  having  before  it  all  the  facts  involved 
in  the  determination  by  the  Igwer  court, 
will  reverse  the  judgment.  Alablima  G.  S. 
II.  Co.  V.  Hill,  90  Ala.  71,  8  So.  90,     9:  442 

937.  It  is  reversible  error  to  refuse  defend- 
ant in  an  action  by  a  child  for  personal  in- 
juries an  order  for  a  physical  examination 
of  plaintiff  by  physicians  to  be  appointed  by 
the  court,  where  defendant  has  no  other 
method  of  determining  the  extent  of  the 
injury,  and  the  examination  may  be  made 
without  pain  or  danger  to  the  plaintiff. 
South  Bend  v.  Turner,  156  Ind.  418,  60  N.  E. 
271,  54:  396 

(5)  Error  Cured  by  Instruction,  Verdict,  etc. 

See  also  supra,  VII.  k.  3. 

938.  A  ruling  admitting  compftent  evi- 
dence to  be  given  by  a  witness  who  at  the 
time  was  incompetent,  over  the  objection 
that  the  evidence  was  not  competent,  does 
not  require  a  reversal  where  evidence  subse- 
<iuently  admitted  removed  the  disability, 
and  by  a  proper  objection  the  witness  might 
have  been  qualified  before  his  testimony  was 
received.  Hoag  v.  Wright,  174  N.  Y.  36,  66 
N.  E.  579,  63:  163 
By  withdrawal ;  striking  out. 

939.  The  erroneous  admission  of  evidence 
which  was  substantially  withdrawn  from 
the  jury  will  not  constitute  ground  for  re- 
versal where  it  does  not  appear  that  it  was 
calculated  to  operate  to  the  injury  of  the 
party  complaining.  Dillingham  v.  Anthony, 
73  Tex.  47,  11  S.  W.  139,  3:  634 

940.  Permitting  a  witness  to  answer  a 
question  as  to  what  he  did  on  a  certain 
occasion,  over  an  objection  that  it  calls  for 
A  conclusion  or  opinion,  is  not  reversible  er- 
ror where  the  court  subsequently  strikes  out 
of  the  answer  all  that  portion  which  .states 
a  conclusion  or  opihion.  Pennsylvania  Co. 
■V.  Marien,  123  Ind.  415,  23  N.  E.  973,    7:  687 

941.  Admission  of  testimony  by  the  pre- 
siding judge  on  a  trial  for  murder,  reflecting 
on  the  good  faith  of  defendant  in  a  pre- 
vious application  for  a  continuance,  is  re- 
versible error  although  the  testimony  is  sub- 
sequently excluded  and  no  objootion  was 
"taken  to  the  competency  of  the  judge  as  a 
"witness,  where  the  competency  of  the  evi- 
dence was  objected  to.  Rogers  v.  State,  CO 
Ark.  76,  29  S.  W.  894,  31 :  465 


By  instructions. 

942.  An  error  in  admitting  improper  evi- 
dence is  cured  where  the  court,  in  its  general 
charge,  placed  the  matter  before  the  jury  in 
a  manner  which  relieved  the  defendant  of 
any  effect  such  testimony  might  have  had 
in  enhancing  plaintiff's  damages.  Cadman 
V.  Markle,  76  Mich.  448,  43  IS.  W.  315, 

5:707 

943.  The  admission  of  testimony  relative 
to  an  injury  to  property  by  the  flow  of 
water  is  not  injurious  where  the  charge  of 
the  court  confines  the  jury  to  the  sole  ques- 
tion of  damages  caused  by  the  obstruction 
of  the  street  in  front  of  the  property. 
Schneider  v.  Detroit,  72  Mich.  240,  40  N.  W. 
329,  2:  54 

944.  Permitting  witnesses  to  give  an  opin- 
ion as  to  the  amount  of  damage  inflicted  on 
abutting  property  by  the  construction  of  a 
viaduct  in  the  street  is  not  reversible  error, 
where  the  jury  is  instructed  that  the  dam- 
age will  be  the  difference  in  the  value  of 
the  property  before  such  construction  and 
immediately  afterwards.  Spencer  v.  Metro- 
politan Street  R.  Co.  120  Mo.  154,  23  S.  W. 
126,  22:  668 

945i  The  admission  of  evidence  as  to  the 
degree  and  time  of  plaintiff's  disablement 
in  an  action  for  assault,  is  not  error,  al- 
thoug'h  no  damages  are  claimed  for  loss  of 
time,  where  the  jury  was  instructed  to  allow 
nothing  for  such  loss,  since  the  evidence  is 
admissible  to  show  the  extent  of  the  inju- 
ries. Gutzman  v.  Clancy,  114  Wis.  589,  90 
N.  W.  1081,  58:  744 

946.  Admitting  testimony  as  to  the  num- 
ber of  his  family  and  who  constitute  it,  by 
plaintiff  in  an  action  for  personal  injuries,  is 
immaterial, — at  least  where  the  jury  are 
limited  by  instruction  to  actual  damages  un- 
less they  find  a  wilful,  palpable  disregard  of 
duty  by  the  defendants.  Johns  v.  Charlotte, 
C.  &  A.  R.  Co.  39  S.  C.   162,  17  S.  E.  698. 

20:  520 

947.  Error  in  admitting  a  judgment  as  evi- 
dence in  another  suit  is  not  relieved  by  the 
court's  statement  to  the  jury  that  the  judg- 
ment is  not  conclusive,  hut  merits  serious 
consideration.  State  v.  Bradneck,  69  Conn. 
212,  37  Atl.  492,  43:  020 

948.  Permitting  proponent's  counsel  to 
ask  contestant  if  she  did  not  destroy  a  sub- 
sequent will  in  which  she  was  beneficiary 
is  not  reversible  error,  where  the  court 
charged  that'  if  the  will  was  not  destroyed 
by  testator,  but  by  another  person,  it  is 
still  his  last  will,  since,  although  the  evi- 
dence might  prejudice  contestant,  it  was 
proper  as  bearing  upon  a  possible  change  of 
testators  mind  towards  contestant.  Cheaver 
V.  North,  106  Mich.  390,  64  N.  W.  455, 

37:  561 

h.  Erroneous  Exclusion. 

Curing  Errors  as  to,  below,  see  supra,  694. 

949.  The  exclusion  of  evidence  whitfh 
would  not  have  benefited  the  party  offering 
it  is  not  error.  Bartlett  v.  Patton,  33  W. 
Va.  71,  10  S.  E.  21,  5:  523 


no 


APPEAL  AND  ERROR.  VII.  m,  3. 


950.  A  decision  will  not  be  reversed  mere- 
ly because  a  seemingny  pertinent  question 
was  excluded,  if  it  is  not  shown  what  the 
partv  proposed  to  prove.  Hickman  v.  Green, 
123  Mo.    165,  27   S.  W.  440,  22  S.  W.  455, 

29:  39 

951.  Excluding  answers  to  pertinent  ques- 
tions is  not  ground  for  reversal,  unless  the 
record  affirmatively  shows  that  the  answers 
would  have  been  competent  and  material. 
Weeks  v.  McXulty,.  101  Tenn.  495,  48  S.  W. 
809,  43:  185 

952.  Refusal  to  allow  answers  by  witness- 
es is  not  prejudicial  error,  if  no  possible  an- 
swers could  have  been  substantially  mate- 
rial. East  Tennessee,  V.  &  G.  R.  Co.  v. 
Kane,  92  Ga.  187,  18  S.  E.  18,  22:  315 

953.  The  exclusion  of  relevant  evidence  is 
not  legal  error  if  it  is  only  slight  and  con- 
jectural, and  afford*  no  basis  for  real  belief. 
Re  Claflin.  75  Vt.  19,  52  Atl.  1053,    58:  261 

954.  Refusing  to  allow  a  witness  to  an- 
swer a  question  which  calls  for  an  expres- 
sion of  opinion  will  not  warrant  reversal, 
even  if  erroneous,  when  it  was  harmless. 
Mason  v.  Southern  R.  Co.  58  S.  C.  70,  36 
S.  E.  440,  53:  913 

955.  A  technical  error  in  the  rejection  of 
evidence  will  not  cause  a  reversal  of  the  case, 
if  it  appears  that  early  in  the  trial  the  par- 
ties assented  to  a  rule  excluding  evidence  of 
that  character,  and  there  is  no  probability 
that  the  ruling  has  occasioned  harm  to  the 
complaining  partv.  Kane  v.  New  York 
Elev.  R.   Co.   125  N.  Y.    164.  26  N.  E.  278. 

11:640 
9.5G.  The  exclusion  of  evidence  of  payment 
of  a  third  person's  claim  as  an  admission  of 
liability  is  not  ground  for  reversal,  where  it 
does  not  appear  that  it  was  against  the  evi- 
dence to  hold  that  it  was  a  mere  purchase  of 
peace.  Colburn  v.  Groton,  66  N.  H.  151. 
29  Atl.  95,  22:  763 

957.  The  exclusion  of  evidence  in  corro- 
boration of  an  interested  party,  on  the 
ground  that  it  is  cumulative  or  that  the 
fact  is  no  hmger  open  to  dispute,  beine  un- 
contradicted, is  ground  for  reversal  if  the 
judge  in  his  charge  iloes  not  treat  the  fact 
as  established,  but  submits  the  (juestion  to 
the  jury  on  such  paity's  uncorroborated  tes- 
timonv.  Page  v.  Krekev,  137  X.  Y.  :^()7. 
35  N.E.  311.'  ■  21:  409 

958.  Rejection  of  evidence  that  one  joint 
maker  of  a  promissory  note  was  financially 
responsible  at  the  time  tlie  payee  is  alleged 
to  have  accepted  his  individual  note  in  pay- 
ment of  the  joint  note  upon  which  the  ac- 
tion is  brought  is  not  reversible  error,  al- 
though the  verdict  is  in  plaintiffs  favor, 
since  that  fact  would  have  no  tendency  to 
show  that  the  obligation  of  the  other  re- 
sponsible makers  was  voluntarily  surren- 
dered. Brink  v.  Stratton,  176  N.  Y.  150.  68 
N.  E.  148.  63:  182 

959.  Orders  suppressing  portions  of  the 
evidence,  allowing  the  retaking  of  deposi- 
tions, and  regulating  preparation  of  the 
cause  for  hearing,  must,  on  appeal  there- 
from, appear  by  the  face  of  the  record  to  be 
not    only   cnoneouS;   but   prejudicial    to    ap- 


pellant, to  warrant  reversal.    Bogga  v.  Bod- 
kin, 32  W.  Va.  566,  9  S.  E.  891,  5:  245- 

960.  The  rejection  Df  e\idence  that  a  car 
in  which  goods  were  shipped  was  sealed  at 
the  loading  point  and  remained  under  seal 
until  tne  delivery  of  the  goods  to  the  con- 
signee is  error,  where  the  issue  is  whether 
the  railroad  company  delivered  to  the  con- 
signee all  the  goods  it  received.  Missouri, 
K.  &  T.  R.  Co.  v.  Simonson,  64  Kan,  802,  6» 
Pac.  653,  57 :  765 

960a.  Direct  evidence  of  suicide  is  not  nec- 
essary to  require  the  consideration  of  the 
correctness  of  the  exclusion  of  evidence  of 
intention  to  commit  it,  since  that  theory 
must  be  considered  by  the  jury  if  the  cir- 
cumstances of  the  case  afford  evidence  to 
support  it.  Com.  v.  Trefethen,  157  Mass. 
180,  31  N.  E.  961,  24:  235 

Established  by  other  proof. 

961.  Excluding  evidence  of  a  fact  which 
is  otherwise  indisputably  proved  is  not  ma- 
terial error.  Houston,  E.  &  W.  T.  R.  Co. 
V.  Campbell,  91  Tex.  551,  45  S.  W.  2,    43:  225- 

962.  Rejection  of  evidence  is  immaterial 
error  if  the  complaining  party  has  had  the 
full  benefit  of  it  from  another  witness. 
Greenville  v.  Ormand,  51  S.  C.  58,  28  S.  E. 
50,  39:  84/ 

963.  The  exclusion  of  a  question  designed 
only  to  show  the  bias  of  a  witness  already 
effectually  impeached  by  record  evidence  is 
not  prejudicial  error.  Tyler  v.  Wadding- 
ham.  58  Conn.  37-5,  20  Atl.  335,  8:  657 

964.  Where  evidence  improperly  rejected 
tends  to  prove  an  item  which  may  or  may 
not  have  been  considered  by  the  jury  in  fix- 
ing the  anioimt  in  the  verdict;  and  it  is 
manifest  that  outside  of  such  item  there . 
was  ground  for  finding  at  least  the  amount 
found;  and  a  new  trial  is  refused  by  the 
trial  court, — the  judgment  will  not  be  re- 
versed. Bartlett  v.  Patton,  33  W.  Va.  71, 
10  S.  E.  21,  '  5:  523 

965.  Where,  on  the  trial  of  an  issue  devi- 
sarit  vel  non,  a  medical  expert  was  permit- 
ted to  answer  two  improper  hypothetical 
questions,  which  he  did,  fully  covering  the 
whole  case,  and  the  court  refused  to  permit 
him  to  answer  two  proper  hypothetical  ques- 
tions which  embraced  no  more  than  the  two 
he  was  permitted  to  answer,  the  party  who 
was  thus  deprived  of  having  his  proper  hy- 
pothetical questions  answered  was  net,  and 
could  not  have  been,  prejudiced  by  the  er- 
ror; and  for  such  error  the  appellate  court 
would  not  re\'^rse  the  decree  and  set  aside 
the  verdict.  Kerr  v.  Limsford,  31  W.  Va. 
659.  8  S.  E.  493,  505,  .  2 :  66» 
Subsequent  admission. 

966.  I'JxcIuding  evidence  is  not  reversioie 
en^or  where  the  excluded  evidence  is  subse- 
quentlv  admitted.  Pennsylvania  Co.  v.  Mar- 
ien,  123  Ind.  415,  23  N.  E.  973,  7:  68T 

967.  Especially  where  it  is  admitted  with- 
out objection.  Mitchell  v.  Southern  P.  R. 
Co.  87  Cal.  62,  25  Pac.  245,  11:  130 

968.  An  error  in  the  exclusion  of  evi- 
dence on  examination  in  chief  is  cured  by 
the  admission  of  the  evidence  on  re-exam- 
ination, if  it  is  as  effectual  at  that  time  a» 


APPEAL  AND   ERROR,  VII.  m,  4. 


Ill 


it  would  have  been  on  the  examination  in 
chief.     Re  Claflin,  75  Vt.   19,   52  Atl.   1053, 

58:  261 

969.  Where,  at  the  trial  of  a  caiise  to  a 
jury,  a  party  oHers  evidence  competent  to 
the  issue,  which,  upon  objection  by  the  oppo- 
site party,  is  not  permitted  to  be  given,  but 
afterward,  during  the  trial,  the  same  wit- 
ness being  upon  tlie  stand,  the  subject  of  the 
former  inquiry  is.  without  objection,  fully 
entered  upon,  both  in  chief  and  on  cross- 
examination,  and  the  questions  which  had 
been  held  incompetent  fully  answered,  the 
error  in  sustaining  the  objection  will  be 
deemed  cured.  Mauk  v.  Brundage,  G8  Ohio 
St.  89,  67  N.  E.  152,  62:  477 

970.  Error  in  refusing  to  allow  the  cross- 
examination  of  a  witness  may  b^  cured  by 
subsequently  permitting  such  cross-exam- 
ination. Mason  v.  Southern  R.  Co.  58  S.  C. 
70,   36   S.    E.   440,  53:  913 

971.  Ruling  out  a  question  to  a  motorman 
whose  car  collided  with  a  bicyclist  as  to 
Whether  or  not  he  would  have  moved  liis 
car  forward  if  he  thought  that  he  was  en- 
dangering hie  is  not  reversible  error,  where 
he  in  subsequently  permitted  to  testify  that 
he  thought  that  by  so  doing  he  would  avoid 
a  collision,  and  that  it  would  be  dangerous 
to  stop.  Harrington  v.  Los  Angeles  R.  Co. 
140  Cal.  514,  74  Pac.  15,  63:  238 

972.  The  exclusion  of  general  evidence  as 
to  the  past  life  of  one  accused  of  murder 
and  the  condition  of  his  father,  offered  as 
a  foundation  for  the  inference  that  he  was 
sufl'ering  from  de.irium  tremens  at  the  time 
of  the  homicide,  is  not  error  if  evidence  is 
subsequently  admitted  showing  his  condi- 
tion and  habits  Avithin  a  reasonable  time  of 
the  commission  of  the  crime.  State  v.  Quig- 
ley,  20  R.  I.  20,3,  58  Atl.  905.  07:  322 
Cross-examination  and  re-examination. 

973.  The  exclusion,  on  cross-examination, 
of  questions  bearing  on  the  motive  or  feeling 
of  a  witness  for  the  state  against  an  ac- 
cused person,  will  not  be  prejudicial  error, 
when  thes«  matters  were  made  immaterial 
by  the  admitted  conduct  of  the  accused.- 
State  v.  Abley,  109  Iowa,  61,  80  IST,  W.  225, 

46:  862 

974.  The  refusal  to  permit  a  witness  to  be 
questioned  on  redirect  examination  as  to 
matters  not  brought  out  on  the  examina- 
tion in  chief  will  not  cause"  a  reversal  of 
the  judgment.  Blake  v.  Stump,  73  Md.  160, 
20  Atl.  788,  10:  103 

c.  Refusal  to  Strike  Out, 

Curing  Error  as  to,  see  supra,  695,  696. 
As  to  Striking  out  Evidence  Generally,  see 
Trial,  27-37. 

975.  It  is  not  reversible  error  to  refuse 
to  strike  out  testimony  of  one  injured  in  a 
railroad  accident  that  "every  function  of  my 
body,  I  think,  was  out  of  order  from  the 
shock,"  as  being  a  mere  matter  of  opinion, 
since  it  is  also  a  statement  of  fact.  Chicago 
City  R.  Co,  V.  Saxby,  213  111,  274,  72  N.  E, 
755,  68:  164 

976.  Refusal  of  the  court  to  withdraw  ob- 
jectionable evidence  as  to  damages  from  the 


jury  is  reversible  error,  where  it  may  have 
had  the  effect  of  enhancing  them,  although 
the  charge  as  to  what  damages  mig'ht  be 
allowed  was  unobjectionable.  Maynaid  v. 
Oregon  R,  &  Nav.Co,   (Or.)   78  Pac.  983, 

68:  477 

977.  Refusing  to  strike  out  the  opinion  of 
a  witness  as  to  the  genuineness  of  signa- 
tures in  evidence  upon  withdrawing  other 
signatures  which  had  been  introduced  for  the 
purpose  of  comiKirison  is  not  error,  where 
the  witness  had  seen  the  person  write  who 
is  alleged  to  have  written  the  signatures,  as 
to  which  he  testifies,  and  is  therefore  com- 
petent to  give  his  opinion  as  to  their  gen- 
uineness independently  of  any  comparison 
with  other  signatures  in  evidence.  State 
V.  Hall,^  16  S.  D.  6,  91  N.  W.  325,       65:  151 

d.  Variance, 

978.  Varance  in  a  suit  upon  a  judgment 
alleged  to  be  simply  for  a  sum  of  money,, 
in  that  the  judgment  i)roved  is  payable  la 
gold  coin,  does  not  constitute  cause  for  re- 
versal, where  tne  judgment  recovered  there- 
on contains  no  direction  for  payment  in  any 
particular  kind  of  monev.  Belford  v.  Wood- 
ward, 158  111.  122,  41  N.'E.  1097,  29:  593 

979.  A  variance  between  plaintiff's  plead- 
ing and  proof  is  noc  fatal  on  appeal,  where 
the  precise  nature  of  the  defect  would  be 
peculiarly  within  defendant's  knowledge, 
and  there  has  been  no  surprise  unless  to  the 
plaintiff.  Willey  v.  Boston  Electric  Light  (Jo. 
168  Mass.  40,  46  N.  E.  395,  37:  723 

e.  In  Cases  Tried  without  Jury. 

980.  The  court  on  writ  of  error  will  not 
reverse  the  judgment  in  a  case  tried  to  the 
court  without  a  jury,  merely  because  of  the 
admission  of  improper  evidence.  Lunney  v,. 
Healey,  56  Neb.  313,  76  N.  W,  558,      44:  593 

981.  In  an  equity  case  the  judgment  will 
not  be  reversed  on  the  sole  ground  of  the 
admission  of  incompetent  evidence,  where 
the  other  evidence  in  the  case  is  sufTicient 
to  sustain  the  lindings.  Cameron  v.  White, 
74  Wis.  425,  43  N.  W.  1.55,  5:  493 

Richardson  v.  Eveland,  126  111,  37,  18  N. 
E.  308,  1:  20a 

982.  A  reversal  for  the  admission  of  irrele- 
vant evidence,  where  the  court  tried  the  case, 
will  not  be  made  unless  it  appears  that  the 
evidence  was  relied  upon.  White  v.  White, 
82  Cal.  427,  23  Pac.  276,  7:  799 

4.  As  to  Instruction*. 

a.  Instructions  Given, 

(1)  Generally;   Miscellaneous  Matters, 

Errors  as  to,  Waived  or  Cured  below,  see 

supra,  VII.  k,  4, 
As  to  Instructions  eienerally,  see  Trial,  III, 
As  to  Correctness  of  Instructions  Generally, 

see   Trial,  III,  e. 
See  also  supra,  657a. 

983.  Erroneous  instructions,  if  not  preju- 
dicial   to    the    c<miplaining   party,    will    not 


112 


APPEAL  AND  ERROR,  VII.  m,  4. 


cause  the  reversal  of  a  case.    State  v.  Gibbs, 
10  Mont.  213,  25  Pac.  289,  10:  749 

Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Pennin- 
sular  Land  T.  &  M.  Co.  27  Fla.  1,  157,  2  So. 
<5G1,  9  So.  689,  17:  33 

984.  An  inaccuracy  in  an  instruction  on  an 
immaterial  point,  and  not  prejudicial,  is  not 
wround  for  reversal.  Com.  v.  McManus,  143 
Pa.  64,  21  Atl.  1018,  22  Atl.  761,         14:  89 

984a.  An  instruction  which  could  not  pos- 
sibly have  prejudiced  the  party,  though  in- 
correct or  abstract,  will  not  be  ground  for 
reversal;  but  it  must  be  very  clear  that  it 
could  not  have  hurt  the  party  complaining  of 
it.  Carrico  v.  West  Virginia  C.  &  P.  R. 
Co.  39  W.  Va.  86,  19  S.  E.  571,  24:  50 

985.  A  verdict  will  not  be  set  aside  be- 
cause the  instructions  were  not  clear,  if  up- 
on the  evidence  no  other  verdict  could  be 
sustained.  Jansen  v.  Williams,  36  Neb.  869, 
55  N.  W.  279,  20:  207 

986.  An  erroneous  instruction  which  could 
not  have  prejudiced  t>he  complaining  party 
is  not  ground  for  reversal.  Debney  v.  State, 
45  IS  GO.  856,  64  N.  W.  446,  34:  851 

987.  An  erroneous  instruction  will  not 
cause  a  reversal  when  it  affirmatively  ap- 
pears that  the  defeated  party  was  not  in- 
jured by  the  error,  (jray  v.  Merriam,  148 
111.  179,  35  N.  E.  810,  32:  769 

988.  An  erroneous  instruction  will  not  re- 
<]uire  a  reversal  if  the  verdict  was  correct 
and  should  have  been  rendered  if  the  in- 
struction had  been  correct.  Richmond  R.  & 
E.  Co.  V.  Garthright,  92  Va.  627,  24  S.  E. 
267,  32:  220 

988a.  If  an  instruction  has  been  given, 
this  court  will  not  reverse  a  judgment  be- 
cause of  it,  if  there  is  any  evidence  tending 
to  prove  the  fact  it  supposes,  4;hough  that 
evidence  is  very  weak  in  the  opinion  of 
this  court.  Carrico  v.  West  Virginia  C.  & 
P.  R.  Co.  39  W.  Va.  80,  19  S.  E.  571,       24:  50 

989.  Where  the  testimony  is  cloarly  suffi- 
cient to  sustain  the  verdict,  and  it  is  evi- 
<ient  that  no  injury  could  have  been  sus- 
tained by  an  error  in  an  instniction  given  lo 
the  jury,  the  verdict  will  not  be  disturbed. 
Wooten  V.  State,  24  Fla.  335,  5  So.  39, 

1:  819 

990.  An  instruction  subject  to  criticism 
in  ^he  al)s*^^ract  is  not  prejudicial  if  it  was 
correct  when  tested  by  the  only  evidence  in 
the  case  to  which  it  could  relate.  Holland  v. 
Tennessee  Coal,  I.  &  R.  Co.  91  Ala.  444.  » 
tjo.  524,  12.  -ISi 

931.  An  inapplicable  illustration  in  m  in- 
struction to  the  jury  is  not  prejudicial  error, 
if  it  is  not  such  as  to  mislead  them.  Mason 
V.  Southern  R.  Co.  58  S.  C.  70,  36  S.  E.  440, 

53:  913 

992.  Verbal  inaccuracy  of  a  charge  to  the 
jury  will  not  require  a  reversal,  if  the  charge 
as  a  whole  fairly  and  acctuatcly  presents 
the  law  applicable  to  the  facts.  Perliam  v 
I'ortland  General  Electric  Co:  33  Or.  451,  53 
Pac.  14,  40:  799 

993.  Defects  in  portions  of  a  charge  to 
the  jury  do  not  require  a  reversal  it  the 
charge  as  a  whole  was  an  accurate  state- 
anent  of  the  law,  and  the  defects  could  not 


have  misled  the  jury.     State  v.  Power,  24 
Wash.   34,   63   Pac.    1112,  63:  902 

994.  In  considering  the  correctness  of  a 
single  instruction  in  a  charge  to  the  jury 
the  entire  charge  must  be  viewed,  and,  im- 
less  it  appears  that  the  jury  would  or  might 
have  been  misled,  mere  verbal  inaccuracies 
will  not  require  a  reversal.  Scott  v.  Astoria 
&  C.  River  R.  Co.  43  Or.  26,  72  Pac.  594, 

62:  543 

995.  An  instruction  not  incorrect  in  itself, 
although  not  as  definite  as  it  miglit  have 
been,  will  not  be  ground  for  reversal  where 
no  further  instruction  on  the  matter  was 
asked.  Kliegel  v.  Aitken,  94  Wis.  432,  69  N. 
W.  67,  35:  249 

996.  An  in.struction  which  was  not  influ- 
ential because  no  finding  was  made  on  the 
point  involved  therein  by  the  jury,  which 
rendered  a  special  verdict,  is  not  ground  lor 
reversal.  Louisville,  >J.  A.  &  C.  R.  Co.  v. 
Lynch,  147  Ind.  165,  44  N.  E.  997,  46  N.  E. 
471,  34:  293 

997.  An  instruction  which  correctly  states 
the  law  cannot  be  complained  of  by  a  party 
on  the  ground  that  it  is  inconsistent  with 
other  instructions  more  favorable  to  him. 
George  v.  Los  Angeles  R.  Co.  126  Cal.  357,  58 
Pac.  819,  46:  829 

998.  A  party  cannot  complain  of  the 
granting  of  prayers  for  his  opponent  which 
did  not  authorize  a  recovery  of  anything 
more  than  might  be  recovered  under  prayers 
oflered  by  himself.  Salabes  v.  Castelberg, 
98  Md.  645,  57  Atl.  20,  64:  800 

999.  Where  there  is  no  pretense  of  any  de- 
fense except  under  the  general  issue  requir- 
ing plaintiff  to  prove  his  case,  and  this  is 
done  oy  undisputed  testimony  S'howing  a 
right  to  recovery,  error  in  the  instructions 
is  immaterial.  Perin  v.  Parker,  126  111.  201, 
18  N.  E.  747,  2:  336 

1000.  An  instruction  directing  the  jury  to 
do  substantial  justice  between  the  parties, 
although  not  to  be  commended,  is  not  pre- 
judicial error,  where  they  are  told  to  do  so 
by  finding  a  verdict  "solely  from  the  evi- 
dence in  the  case,  applying  the  law  as  given 
in  these  instructions."  German  Ins.  Co.  v. 
Shader,  68  Neb.  1,  93  N.  W.  972,  60:  918 

1001.  In  a  civil  case,  where  there  is  no 
well-founded  complaint  of  the  exclusion  of 
evidence,  it  becomes  immaterial,  on  appeal 
to  the  supreme  court  of  Louisiana,  whether 
the  charge  of  the  trial  judge  was  right  or 
wrong,  since  it  is  the  duty  and  privilege  of 
the  court  to  apply  the  law,  accordin<;  to  its 
understanding  thereof,  and  regardless  of 
what  the  trial  judge  may  have  charged,  to 
the  facts  as  disclosed  by  the  record.  War- 
ner V.   xalbot,  112  La.  817,  36  So.  743, 

66:  336 

1002.  Failure  of  an  instruction  to  ex- 
plain the  meaning  of  a  word  which  might 
mislead  the  jury  is  not  ground  for  reversal, 
if  a  proper  charge  upon  the  subject  was  not 
requested.  Clarendon  Land,  I.  &  A.  Co.  v. 
McClelland  Bros.  89  Tex.  483,  34  S.  W.  98, 
35   R.  W.  474,    .  31:  669 

1003.  The  characterization  of  instructions 
as  requested  by  one  party  or  the  other,  or 
the  failure  to   so  characterize  them,  is  not 


APPEAL  AND   ERROR,  VII.  m,  4. 


113 


ordinarily     reversible     error.     Gutzman     v. 
Clancy,  il4  Wis.  589,  90  N.  W.  1081, 

58:  74^ 

10{)4.  An  explanation  of  a  charge,  given 
without  objection,  is  not  error  where  it  does 
not  lay  duvvn  a  diderent  pro|>osition  of  law 
from  that  contained  in  such  instruction. 
Mitchell  V.  Charleston  Light  &  P.  Co.  45  S. 
C.  146,  22  S.  E.  7G7,  31:577 

1005.  The  definition  of  a  word  by  the 
court  in  response  to  a  request  for  such  defi- 
nition from  the  jury,  if  correct,  is  not  re- 
versible error,  although  the  word  is  one  in 
common  use.  Cobb  v.  Covenant  Mut.  Ben. 
Ass).  ir).3  Mass.  170,  'ifi  N.  E.  230,       10:  Go6 

lOOG.  The  giving  of  erroneous  or  inappro- 
priate instructions  in  the  trial  of  a  criminal 
case  affords  the  accused  no  just  «(ause  of 
complaint,  when  so  doing  could  not  in  any 
manner  have  operated  to  his  injury.  Arn- 
heiter  v.  State,   115  Ca.  572,   41  S.  E.  989, 

58:  392 

1007.  An  instruction  permitting  one 
charged  with  conspiracy  to  murder  to  be 
found  guilty  as  an  accessory  before  the  fact, 
whether  he  was  present  at  the  time  of  the 
shooting  or  not,  is  not  prejudicial  error 
where  there  is  no  evidence  that  accused  was 
present.  Powers  v.  Com.  110  Ky.  386,  61 
S.   W.  735,  53:  245 

1008.  An  irrelevant  instruction  which 
may  have  been  in  some  degree  prejudicial 
may  constitute  ground  of  reversal.  O'Rourke 
y.  Citizens'  Street  R.  Co.  103  Tenn.  124,  52 
S.  W.  872,  46:  614 

1009.  A  general  verdict  in  a  case  where 
there  are  several  material  issues  tried  can- 
not be  upheld  if  the  jury  are  given  an  erron- 
eous charge  upon  any  one  of  them.  Funk  v. 
St.  Paul  City  R.  Co.  61  Minn.  435,  63  N.  W. 
1099,  29:  208 

1010.  A  case  cannot  be  affirmed  on  other 
grounds,  where  erroneous  instructions  on 
one  count  have  been  given  to  the  jury. 
Amaker  v.  New,  33  S.  C.  28,  11  S.  E.  386. 

8:  6J7 

1011.  It  is  error  to  inform  the  jury  of  the 
legal  effect  of  their  answers  to  questions 
in  a  special  verdict.  Gutzman  v.  Ciancy, 
114  Wis.  589,  90  N.  W.  1081,  58:  144 

1012.  That  instructions  requested  by  the 
defeated  party,  embodying  correct  princi- 
ples of  law,  were  given  to  the  jury,  will  not 
prevent  a  reversal  if  contradictory  and  er- 
roneous instructions  were  given  for  his 
adversary.  Gilmore  v.  Fuller,  198  111.  130. 
«5  N.  E.'84,  60:  286 

1013.  A  mere  verbal  mistake  oy  the  court 
in  calling  a  mine  by  the  wrong  name,  which 
could  not  prejudice  defendant,  cannot  be  as- 
signed by  him  as  error.  Burgess  v.  Terri- 
tory, 8  Mont.  57,  19  Pac.  558,  1:808 

1014.  An  erroneous  instruction  as  to  the 
effect  of  usury  is  harmless  where  the  jury 
have  found  there  was  no  usury.  Sanborn  v. 
Cole,  63  Vt.  590,  22  Atl.  716,  14:  208 

1015.  In  a  charge  of  the  court  a  mistake 
in  stating  the  number  of  letters  sent  from 
a  certain  place,  made,  not  positively,  but 
with  the  qualification  "I  think,"  is  not 
ground  for  reversal  When  no  suggestion  of 
the   mistnke    is    made   in  the   court   below. 

L.R.A.   Dig.— 8. 


Muetze  v.  Tuteur,  77  Wis.  236,  46  N.  W.  123, 

9:  86 

1016.  Error  in  a  statement  by  the  judge 
that  the  jury  are  not  to  try  the  constitu- 
tionality of  a  statute  will  not  require  re- 
versal of  a  conviction  wheu  no  motion  was 
made  to  discharge  the  jury,  and  the  judge 
at  the  proper  time  instructed  them  to  de- 
termine the  law  for  themselves, — especially 
when  there  is  no  question  as  to  the  fact  that 
the  statute  was  violated.  Townsend  v. 
State,  147  Ind.  624,  47  N.  E.   19,         37:  294 

1017.  A  judgment  will  not  be  reversed  for 
failure  of  the  trial  court  to  expressly  state 
that  certain  requested  instructions  are  given, 
where  it  states  that  counsel  have  handed  it 
some  requests  as  stating  propositions  of  law 
by  which  the  jury  should  be  guided  in  deter- 
mining their  verdict,  and  proceeds  to  read 
them  to  the  jurv.  Noble  v.  Bessemer  S.  S. 
Co.  127  Mich.  103,  86  N.  W.  520,  54:  456 
Mistake  in  copying. 

lOlS.  A  manifest  clerical  mistake  in 
copying  an  instruction  is  not  prejudicial  er- 
ror. Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v. 
Montgomerv.   152  Ind.   1,  49  N.  E.  582. 

69:  875 
Failure  to  number  or  sign. 

1019.  Failure  of  counsel  either  to  num- 
ber or  sign  instructions  furnishes  no  ground 
for  reversal,  when  the  instructions  are  given 
by  the  court,  although  it  might  have  been 
ground  for  refusing  them.  Orman  v.  Man- 
nix,  17  Colo.  564,  30  Pac.  1037,  17:  602 

(2)  As  to  Negligence. 

Necessity  of  Propriety  of  Instructions,  see 

Trial,  663-674. 
Correctness    of    Instructions    Generally,    see 

Trial,  III.  e.  4. 

As  to  act  of  God.. 

1020.  Failure  correctly  to  distinguish  be- 
tween "unavoidable  accident"  and  "the  act 
of  God,"  in  charging  the  jury,  will  not  re- 
quire a  reversal,  if  the  jury  could  not  have 
been  misled  thereby.  Blythe  v.  Denver  & 
R.  G.  R.  Co.  15  Colo.  333,  25  Pac.  702. 

11:  615 

1021.  An  instruction  that  the  failure  of  a 
defendant  to  establish  a  special  defense  that 
the  injury  was  caused  by  an  act  of  God 
which  is  pleaded  in  addition  to  the  general 
denial  will  require  a  verdict  lor  the  plain- 
tiff may  be  ground  for  reversal  of  judgment 
against  him.  Fremont,  E.  &  M.  V.  R.  Co.  v. 
Harlin,  50  Neb.  698,  70  N.  W.  263,  36:  417 
Negligence  of  earner. 

Necessity    of    Instructions,    see   Trial,    665, 
668,  670,  672,  673. 

1022.  An  instruction  that  a  railroad  com- 
pany is  bound  to  exercise  very  great  vigi- 
lance and  care  in  maintaining  order  and 
guarding  passengers  against  violence  will 
require  a  reversal  of  a  judgment  against  such 
a  company  based  on  lack  of  care,  althougl 
other  instructions  correctly  require  a  lower 
degree  of  care.  Illinois  C.  R.  Co.  v.  Minor, 
69  Miss.  710,  11  So.  101,  16:  627 

1023.  Error,  if  any,  in  instructing  that  it 
is  the  duty  of  a  railroad  companj'  to  use  the 
utino-<t  care  an  1  dilipenco  to  see  th;tt  a  pas- 
senger on  a  sleeper  is  awakened  in  time  to 


114 


APPEAL   AND   ERROR.  VII.  m.  4. 


dress  before  making  a  change  of  ears  is  elina- 
inated  by  a  special  verdict  finding  that  she 
was  not  awakened  and  no  attempt  was  made 
to  awaken  lier,  and  that  the  porter  did  not 
have  good  reason  to  believe  thaf  he  had 
awakened  -  her.  McKeon  v.  Chicago,  M.  & 
St.  P.  R.  Co.  94  Wis.  477,  69  N.  W.   175, 

35:  252 

1024.  An  instruction  that  if  the  failure  to 
awaken  plaintiff  so  as  to  give  her  reasonable 
time  to  dress  herself  and  child  before  the 
train  reached  a  station  at  which  she  was 
compelled  to  change  cars,  and  the  treatment 
she  received  thereafter,  were  the  cause  which 
under  all  the  proof  led  naturally  to  and 
might  have  been  expected  to  be  directly  in- 
strumental in  producing  the  injury  which 
the  jury  should  find  the  plaintiff  had  :sus- 
tained,  their  answer  to  a  certain  question 
should  be  "Yes,"  is  not  reversible  error  as 
allowing  the  jury  to  answer  such  question 
in  the  affirmative  if  the  defendant  or  its 
porter  might  have  expected  the  result,  in- 
stead of  if  a  man  of  ordinary'  intelligence 
and  prudence  would  have  expected  it,  in  the 
absence  of  a  request  for  a  more  definite  and 
certain  instruction.  Id. 

1025.  An  instruction  that  a  boy  injured 
while  playing  with  a  street  car  was  not  en- 
titled to  the  rignts  of  a  passenger,  though  it 
did  not  state  what  the  rights  of  a  passenger 
would  be,  is  not  prejudicial  error,  where  the 
jury  were  fully  instructed  as  to  the  law  ap- 
plicable to  fhe  facts  in  the  case.  George  v. 
Los  Angeles  R.  Co.  126  Cal.  357,  58  Pac. 
819,  46:  829 
Of  railroad. 

Correctness    of    Instruction    Generallj',    see 

Trial,  822-828. 
See  also  infra,  1028. 

1026.  The  giving  of  an  instruction  assum- 
ing that  it  was  a  railway  company's  duty  to 
keep  a  flagman  at  a  street  crossing,  whereas 
the  statute  imposes  no  such  duty,  is  not 
ground  for  reversal,  where  the  company 
could  not  have  been  prejudiced  thereby  be- 
cause the  evidence  clearly  shows  that  it  did 
have  a  flagman  at  such  crossing.  Schmitz 
v.  St.  Louis,  I.  M.  &  S.  R.  Co.  119  Mo.  256, 
24  S.  W.  472,  23:  250 

1027.  Instructions  to  the  jur\'  in  an  action 
for  injuries  on  a  highway  crossing,  that  "the 
fact  that  the  gates  were  up  would  be  notice 
to  plaintiff  that  there  was  no  danger  in 
crossing  the  track;  it  would  be  an  invita- 
tion to  him  to  cross  the  track;"  and  that, 
"if  the  jury  find  that  there  was  no  warning 
given  at  all,  the  plaintiff  had  a  right  to 
suppose  that  the  track  was  clear," — are  not 
so  erroneous  as  to  demand  a  reversal  where 
the  context  shows  that  they  were  applied  to 
the  question  of  negligence  on  the  part  of  de- 
fendant, and  not  to  plaintiff's  conduct  as 
constituting  contributory  negligence.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Franz,  127  Pa.  297, 
18  Atl.  22,  4:  389 
Negligence  of  master. 

Xecessitv  of  Instructions!  see  Trial.  663,  664. 

071."  674. 
Correctness    of    Instructions    Generally,    see 

Trial.  814-821. 

1028.  An  instruction  in  an  action  against 


a  railroad  company  for  the  death  of  an  em- 
ployee, which  permits  the  jury  to  consider 
the  question  of  the  safety  of  the  location 
of  the  road,  is  reversible  error,  although 
other  portions  of  the  charge  correctly  in- 
struct tnem  as  to  the  degree  of  care  which  it 
is  necessary  for  the  company  to  have  exer- 
cised. Scott  V.  Astoria  &  C.  River  R.  Co. 
43  Or.  26,  72  Pac.  594,  62:  543 

1029.  Instructions  to  the  jury  upon  the 
question  of  the  duty  which  a  master  owes 
to  one  servant  in  hiring  others  are  not 
ground  for  reversal,  where,  taken  as  a  whole,^ 
they  state  that  the  master's  duty  is  to  fur- 
nish reasonably  suitable  servants,  and  that 
he  discharges  this  duty  when  he  exercises 
ordinary  and  reasonable  care  in  so  doing,  al- 
though some  portions  of  them  seem  to  re- 
quire a  higher  duty  in  this  respect.  Sroufe 
V.  Moran  Brothers  Co.  28  Wash.  381,  (>8 
Pac.  896,  58:  313 
Comparative  negligence. 

1030.  An  instruction  as  to  comparative 
negligence  is  not  reversible  error  in  an  action 
against  a  master  for  negligent  injury  of  his 
servant,  where  there  is  not  a  particle  of  evi- 
dence of  negligence  on  the  part  of  the  serv- 
ant. Sroufe  v.  Moran  Brothers  Co.  28  Wash. 
381,  68  Pac.  869,  .58:  3ia 

1031.  An  instruction  that  plaintiff  in  an 
at'tion  to  recover  for  negligent  injuries  may 
recover  if  guilty  of  only  slight  negligence,, 
if  defendant  was  guilty  of  gross  neglige'nce, 
will  not  require  reversal  if  the  jury  find 
plaintiff  was  not  negligent  at  all.  Smith  v. 
L'nion  Trunk  Line,  18  Wash.  351,  51  Pac. 
400,  45:  169 
Contributory  negligence. 

Necessity  of  Instruction,  see  Trial.  666. 
Correctness  of  Instruction  as  to,  Generallv, 

see  Trial.  809-811.  822,  826. 
See  also  supra,  1030.  1031. 

1032.  Error  in  charging  on  the  rule  of  con- 
tributory negligence  is  not  prejudicial  ta 
defendant  where  there  is  no  evidence  of 
plaintiff's  negligence.  Pullman  Palace  Car 
Co.  V.  Smith.  79  Tex.  468.  14  S.  W.  993. 

13:  215 

1033.  In  an  action  to  recover  damages  for 
personal  injuries  sustained  by  the  |)laintiff 
on  account  of  the  defemlant's  negligence,  it 
is  not  error  to  omit  to  instruct  the  jury  as 
to  the  law  of  contributory  negligence,  in  an 
instruction  given  for  the  plaintiff,  when  the 
court,  in  giving  the  defendant's  instructions, 
instructs  the  jury  fully  and  fairly  on  that 
point.  Normile  v.  Wlieeling  Traction  Co. 
57  W.  Va.  132,  49  S.  E.  1030,  68:  901 

1034.  A  technical  error  in  saying  that  an 
infant  sixteen  months  old  could  not  bo  a 
trespasser  is  not  prejudicial  error  in  an  in- 
struction to  the  jury  as  to  the  killing  of  the 
infant  by  a  train,  wlien  the  remarks  of  the 
judge  draw  the  attention  of  the  jury  to  the 
distinction  between  the  infant  and  an  adult, 
and  state  that  such  an  infant  could  not  be 
guilty  of  contributory  negligence,  and  does 
not  know  right  from  wrong.  Mason  v. 
Southern  R.  Co.  58  S.  C.  70,  36  S.  E.  440. 

53:  913 

1035.  In  an  action  for  the  death  of  a  child 
the  father,  as  administrator,  being  plaintiff,. 


APPEAL  AND   ERROR,  V.I.  m    4. 


115 


it  is  error  to  instruct  the  jury  that  contrib- 
utory negliwencp  of  the  father  is  no  defense. 
Tucker  v.  Draper.  62  Xeb.  66.  86  N.  W.  917. 

54:  321 

(3)  As  to  Damages. 

Necessity  or  Propriety  of  Instructions  Gen- 
erally, see  Trial.  656-660. 

Correctness  of  Instructions  Generally,  see 
Trial.  III.  e,  2. 

1036-1037.  An  instruction  which  fails  to 
present  separately  the  elements  of  actual 
and  exemplary  damages,  but  limits  the 
amount  of  recovery,  is  not  prejudicial  if  the 
\  erdict  is  for  less  than  the  jury  can  properly 
find.  Heiligmann  v.  Rose,  81  Tex.  222,  16  S. 
W.  931,  '43:  272 

1038.  Where,  in  giving  the  rule  for  dam- 
ages in  a  suit  against  a  railroad  company  to 
recover  for  personal  injuries,  the  idea  of 
compensation  was  clearly  in  the  judge's 
mind,  and  was  fairly  brought  before  the  jury 
in  the  enumeration  of  the  elements  of  the 
damages  which  might  be  allowed,  the  fact 
that  the  jury  were  told  that  they  might  con- 
sider the  pain  and  suffering  which  the  plain- 
tiff "may  undergo"  in  the  future  will  not 
cause  a  reversal  as  giving  the  jury  unbridled 
license  or  leaving  them  without  a  guide  in 
the  ascertainment  of  damages.  Lake  Shore 
&  M.  S.  R.  Co.  V.  Franz.  127  Pa.  297,  18  Atl. 
22.  4:  389 

1039.  A  verdict  for  an  entire  sum  to  be 
awarded  to  a  man  and  wife  for  injury  to 
her  by  a  physician's  abandonment  of  her 
during  confinement  will  be  set  aside  if  the 
court's  instructions  authorized  a  considera- 
tion of  the  fact  of  the  child's  death  in  fixing 
the  damages.  Lathrope  v.  Flood,  135  Cal. 
458.  63  Pac.  1007,  67  Pac.  683,  57:  215 

1040.  An  instruction  in  an  action  for  false 
imprisonment  permitting  the  damages  to  be 
fixed  by  what  the  average  man  would  suffer 
under  the  circumstances  is  not  reversible  er- 
ror, where  there  is  nothing  to  show  that 
plaintiff  suffered  less  than  would  the  average 
man.  although  the  measure  of  damages 
should  actuallv  have  been  What  plaintiff  suf- 
fered. Mumford  v.  Starmont.  139  Mich.  188, 
102  N.  W.  602,  69:  .3.50 

1041.  A  charge  in  an  action  for  breach  of 
promise  of  marriage,  that  plaintiff  is  entitled 
at  least  to  such  damages  as  would  place  her 
in  as  good  a  pecuniary  condition  as  she 
would  have  been  in  if  the  contract  had  been 
fulfilled,  although  a  careless  use  of  language, 
is  not  ground  for  reversal,  where  the  jury 
could  not  have  failed  to  understand  from  the 
whole  charge  that  they  were  to  compensate 
plaintiff  for  what  she  had  lost  and  was  de- 
prived of  by  failure  of  the  marriage.  Ohellis 
v.  Chapman.  125  N.  Y.  214.  26  N.  E.  308, 

11:  784 

(4)  As  to  Witnesses. 

Instructions  as  to  Credibility  Generallv.  see 
Trial,  711-724. 

1042.  An  instruction  by  the  court,  where 
a  defendant  does  not  testify  in  his  own  be- 
half, that,  "while   a   statute  of  this  state 


provides  that  a  person  charged  with  crime 
may  testify  in  his  own  behalr.  he  is  under 
nn  obligation  to  do  so.  and  the  statute  ex- 
pressly declares  that  his  neglect  to  testity 
shall  not  create  any  presumption  against 
him," — is  not  prejudicial  error.  State  v. 
Ryno.  68  Kan.  348.  74  Pac.  1114,  64:  303 

(5)  L^pon  Facts  and  Evidence. 

Instructions  on.  Generally,  see  Trial,  III.  d. 
See  also  supra,  1042. 

1043.  An  instruction  which  submits  to  the 
jury  an  inquiry  of  fact  concerning  which 
there  is  no  evidence  is  reversible  error.  Mc- 
Cormick  Harvesting  Mach.  Oo.  v.  Willan,  63 
Xeb.  391,  88  N.  W.  497,  56:  338 

1044.  Instructions  which  are  length5-  and 
in  the  nature  of  a  resume  of  the  evidence 
and  an  argument,  do  not  constitute  revers- 
ible error,  if  they  are  not  so  unfair  to  appel- 
lant as  to  have  prejudiced  the  jurv.  Postal 
Teleg.  Cable  Co.  v.  Lathrop,  131  111.  575.  23- 
N.  E:  583,  7 :  474 

1045.  An  erroneous  charge  as  to  the  pre- 
sumption against  a  party  from  failure  to 
produce  books  or  papers  under  his  control 
will  require  a  reversal,  where  the  evidence 
was  conflicting  and  irreconcilable.  Cartier 
V.  Troy  Lumber  Co.  138  111.  533,  28  X.  E.  9.32. 

14:470 

1046.  An  instraction  as  to  the  effect  of  the 
interruption  of  possession  by  a  stranger, 
even  if  erroneous,  is  immaterial  where  there 
was  no  evidence  of  any  interruption  by  a 
stranger  or  anvbodv  else.  Wren  v.  Parker. 
57  Conn.  529,  18  Atl.  790,  6:  SO* 

1047.  An  instruction  in  an  action  for  per- 
sonal injuries,  that  defendant's  answer  de- 
nied the  lameness  of  plaintiff,  is  prejudicial 
error,  where  the  answer  really  denied  that 
the  lameness  was  caused  by  defendant,  ancf 
by  the  means  alleged,  and  there  was  evi- 
dence tending  to  show  a  previously  existing.' 
lameness.  Swift  v.  Bleise,  63  Neb.  739.  8» 
X.  W.  310.  57:  147 

1048.  An  objectionable  instruction  as  to 
the  credit  and  weight  of  the  testimony  of 
interested  witnesses  is  not  cause  for  rever- 
sal where  there  is  no  serious  conflict  be- 
tween the  appellant  and  any  other  witness, 
and  nothing  to  show  that  it  applied  to  hin> 
more  than  to  the  other  partv.  who  also  testi- 
fip  1.  Hess  V.  Lowrev,  122  Ind.  2'25,  23  N.  E. 
156,  '  7:90 

1049.  Representatives  of  a  person  who 
killed  himself  to  give  his  estate  the  benefit 
of  his  insurance  cannot,  in  a  suit  upon  the 
policies,  complain  of  an  instruction  that 
deceased  was  sane  if  he  imderstood.  as  a 
man  of  sound  mind  would,  the  consequences 
to  follow  from  his  contemplated  suicide  to 
himself,  his  character,  his  family,  and  others, 
and  was  able  to  comprefhend  the  wrongful- 
ness of  what  he  was  about  to  do  as  a  sane 
man  would.  Ritter  v.  Mutual  L.  Ins.  Co.  17 
C.  C.  A.  537,  28  U.  S.  App.  612,  70  Fed.  954. 

42:  583 

1050.  Comment  upon  the  testimony  by  th«> 
court,  to  the  effect  that  there  is  nothing  to 
show  that  lumber  was  set  on  fire  by  sparks 
from  a  boat,  where  there  is  no  attempt  to 


116 


APPEAL  AND   ERROR,  VII.  m,  4. 


prove  any  otlier  cause  of  the  fire  and  several 
witnesses  have  sworn  to  seein»  sparks  from 
the  boat  falling  upon  the  lumber,  although 
the  court  allowed  the  case  to  go  to  the  jury, 
— requires  reversal  of  a  judgment  on  a  ver- 
dict for  the  defendant.  Burrows  v.  Delta 
Transp.  Co.  106  Mich.  582,  64  N.  W.  501, 

29:  466 
Assuming  facts. 

Instructions  Assuming  Facts  Generally,  see 
Trial,  733-740. 

1051.  For  the  court  to  assume  in  its 
charge  to  the  jury  the  existence  of  undis- 
puted facts  is  not  reversible  error.  For- 
syth V.  Hammond,  142  Ind.  505,  40  N.  E. 
267,    41    N.    E.    950,  30:  576 

1052.  An  instruction  assuming  as  true 
facts  proved  beyond  controversy  is  not 
ground  for  reversal  because  of  such  assump- 
tion. Carrico  v.  West  Virginia  C.  &  P.  R. 
Co.  39  W.  Va.  86,  19  S.  E.  571,  24:  50 
Burden  of  proof. 

Instructions  as  to.  Generally,  see  Trial,  697- 
704. 

1053.  To  instruct  the  jury  that  the  burden 
is  on  the  proponents  of  a  will  to  establish 
the  testator's  sanity,  and  that  ohey  must  fail 
if  at  the  close  of  the  evidence  "the  scales 
stand  evenly  balanced,"  without  instructing 
as  to  the  legal  presumption  of  sanity,  is 
reversible  error.  Re  Barber's  Estate,  63 
Conn.  393,  27  Atl.  973,  22:  90 

1054.  It  is  reversible  error  to  instruct  the 
jury  in  a  proceeding  to  establish  a  will,  that 
if  from  the  whole  evidence  "it  is  left  un- 
certain whether  or  not  the  testator  was  of 
sound  mind,  then  it  is  left  uncertain  whether 
^  person  of  sound  mind,  within  the  meaning 
of  our  statute,  has  made  the  will,  and  the 
will  should  not  be  sustained,"  although  pre- 
'ceded  bj^  an  intimation  that  the  proponent 
lias  the  burden  of  establishing  the  will  by 
only  a  fair  preponderance  of  evidence,  and 
followed  by  a  statement  that  to  defeat  the 
will  because  of  insane  delusions  they  should 
be  established  by  "a  fair  preponderance  of 
evidence."  Id. 
Amount  of  evidence  necessary. 

1055.  An  instruction  in  an  action  on  an 
insurance  policy,  that  the  jury  should  be 
satisfied  by  a  "clear"  preponderance  of  proof 
that  plaintiff  burned  the  buildings,  befoi-e 
finding  the  fact,  is  not  misleading  in  connec- 
tion with  an  instruction  that  the  action  is 
a.  civil  one,  and  is  not  required  to  establish 
the  facts  beyond  a  reasonable  doubt,  but 
only  bv  a  fair  preponderance  of  proof.  Hart 
V.  Niagara  F.  Ins.  Co.  9  Wash.  620,  38  Pac. 
213,  27:  86 

1056.  An  instruction  on  a  life  insurance 
policy  that  fraud  is  not  to  be  presumed,  but 
like  any  other  fact  may  be  proved  by  circum- 
stances from  which  the  inference  of  fraud 
is  natural  and  "irresistible,"  is  not  ground 
for  reversal  because  of  the  use  of  the  word 
"irresistible"  where  it  is  so  qualified  by  the 
instruction  given  immediately  thereafter 
that  its  use  could  not  have  prejudiced  ap- 
pellant. Seiler  v.  Economic  L.  Asso.  105 
Iowa,  87,  74  N.  W.  941,  43:  537 


Criminal  cases. 

Instructions  as  to,  Generally,  see  Trial,  701- 

705,  708-710,  714,  715,  717,  722,  723,  739, 

744-749. 

1057.  Reference  by  the  court  to  the  "crime 
charged,"  in  its  instructions,  will  not  be  re- 
garded as  having  misled  the  jury  from  the 
fact  that  a  witness  incidentally  stated  that 
accused  had  been  arrested  upon  another 
charge  than  that  for  which  he  was  on  trial. 
State  V.  Thornton,  10  S.  D.  349,  73  N.  W. 
196,  41:530 

1058.  Charging  the  jury  as  to  the  effect  of 
verbal  statements  of  accused,  when  there  is 
no  evidence  that  he  made  aiTv,  is  not  revers- 
ible error,  where  the  facts  disclosed  by  the 
record  show  that  accused  was  not  prejudiced 
thereby.  State  v.  Coleman,  186  Mo.  151,  84 
S.  W.  978,  6-):  381 

1059.  The  court's  reciting  facts  which  the 
evidence  tends  to  establish,  and  stating  to 
the  jury  that  if  they  find  these  facts  to  have 
existed  their  verdict  must  be  in  a  certain 
way,  is  a  comment  on  the  evidence,  which  is 
STOund  for  reversal  in  Missouri.  (State  v. 
Grugin,  147  Mo.  39,  47  S.  W.  1058,    42:  774 

1060.  A  charge  permitting  the  jury  to  con- 
sider evidence  of  an  unlawful  sale  of  cider 
within  two  years  precedmsr  is  immnterial, 
although  the  statute  creating  the  oiTense  had 
been  passed  within  that  time,  where  the  only 
evidence  actually  given  related  to  a  sale 
after  the  act  took  effect.  Lawrence  v.  Mon- 
roe, 44  Kan.  607,  24  Pac.  1113,  10:  520 

b.  Failure  or  Refusal  to  Instruct. 

See  also  Trial,  665. 

1061.  The  fact  that  a  necessary  limitation 
upon  a  requested  charge  which  is  too  broad 
is  found  in  the  general  charge  cannot  have 
the  legal  effect  of  making  the  requested 
charge  sound  law,  so  as  to  constitute  its  re- 
fusal reversible  error.  Wellston  Coal  Co.  v. 
Smith,  65  Ohio  St.  70,  61  N.  E.  143,      55:  99 

1062.  The  refusal  of  a  proper  instruction 
is  not  ground  of  reversal  if  it  could  not  have 
been  prejudicial.  St.  Louis  S.  W.  R.  Co.  v. 
Jones,  64  Ark.  613,  44  S.  W.  809,       39:  784 

1063.  Failure  to  give  instructions,  thoug*h 
correct,  that  would  have  been  mere  surplus- 
age because  already  substantiallv  given,  is 
not  prejudicial  error.  Bonte  v.  Postell,  109 
Ky.  64,  58  S.  W.  536,  51:187 

1064.  Refusal  to  give  to  the  jury  a  re- 
quested instruction  which  is  not  strictly  cor- 
rect is  not  reversible  error.  Pennsvlvania 
R.  Co.  V.  Naive,  112  Tenn.  239,  79  S.  W.  124. 

64:  443 
1005.  The  refusal  of  parts  of  instructions 
asked  in  the  aggregate  is  not  available  as 
error  on  appeal,  where  the  instruction  as  a 
whole  contains  objectionable  matter.  Mann 
Boudoir  Car  Co.  v'.  Dupre,  13  U.  S.  App.  183, 
4  C.  C.  A.  540,  54  Fed.   646,  21 :  289 

1066.  Failure  to  give  a  requested  instruc- 
tion is  not  reversible  error,  where  the  in- 
structions given  were  calculated  to  impart 
to  the  jury  fully  as  clear  an  idea  of  the  mit- 
ter  involved  as  would  have  been  done,  by 
the  use  of  the  language  in  the  one  requested. 


APPEAL  AND  ERROR,  VII.  m,  4. 


117 


NashviJle,  C.  &  St.  L.  R.  Co.  v.  Heikens,  112 
Tenn.   378,  79   S.  W.    1038,  65:  298 

1067.  A  refusal  to  instruct  a  jury  in  ac- 
cordance with  suggestions  contained  in  spe- 
cial questions  presented  for  submission  to 
them,  or  the  giving  of  instructions  in  regard 
to  a  particular  subject,  is  not  reversible  er- 
ror, if.  Dv  the  verdict  rendered,  it  is  clear 
that  the  facts  necessary  to  the  applicability 
of  such  instructions  given  or  refused  did  not 
exist.  Tp=ch  v.  Milwaukee  Electric  R  &  L. 
Co.  108  Wis.  533,  84  N.  W.  823,  53:  618 

lOOS.  Failure  to  give  proper  instructions 
as  to  contributory  negligence,  in  an  action 
to  recover  damages  for  wrongful  death,  is 
not  reversible  error,  where  there  was  no  evi- 
dence upon  which  to  base  any  instruction 
upon  the  subject.  Louisville  &  E.'«^ail  Co. 
v.   Barnes,    li7   Kv.   860,   79   S.  W.   261, 

64:  574 

1C69.  Refusal  of  an  instruction  as  to  how 
far  intent  constitutes  fraud  is  not  reversible 
error  if  a  proper  disposition  of  the  case  can 
be  arrived  at  from  the  acts  of  the  parties 
without  regard  to  the  intent.  Rice  v.  Wood, 
61  Ark.  442,  33  S.  W.  036,  31:  609 

1070.  Refusal  of  instructions  the  meaning 
of  which  is  involved  in  doubt,  or  which  are 
imcalled  for  in  the  case,  is  not  reversible 
error  if  the  instructions  given  upon  that 
branch  of  the  case  are  as  favorable  to  the 
complaining  party  as  the  facts  and  the  law 
will  warrant.  People  v.  Erbanks,  117  Cal. 
652.  49  Pac.  1049,  40:  269 

1071.  The  refusal  of  the  court  to  instruct 
the  jury  as  to  assault  is  not  error,  where  it 
appears  that,  if  the  defendant  was  guilty  of 
any  offense,  it  was  one  of  a  higher  grade 
than  a  mere  assault.  State  v.  Rvno,  68  Kan. 
348.  74  Pac.  1114,  '  64:  303 

1072.  The  refusal  of  instructions  as  to  the 
rights  of  a  finder  in  respect  to  the  property 
found  is  reversible  error  in  a  prosecution 
against  him  for  murder,  in  which  he  pleads 
self-defense  and  the  evidence  shows  that  the 
homicide  occurred  while  he  was  attempting 
to  enforce  a  right  to  possession  as  against 
the  owner,  when  both  men  used  firearms, 
since  such  instructions  are  necessary  to  en- 
able the  jury  to  determine  which  was  first 
in  the  wrong.  People  v.  Hecker,  109  Cal.  451, 
42  Pac.  307,  .30:  403 

1072a.  The  refusal  of  an  instruction  in  an 
action  for  personal  injuries,  to  the  effect  that 
defendant  was  not  responsible  for  damage 
caused  by  want  of  reasonable  care  on  plain- 
tiff's part  after  the  alleged  injury,  is  er- 
roneous, where  evidence  has  been  admitted, 
without  objection,  tending  to  show  that 
plaintiff's  condition,  expense,  and  suffering 
were  in  part  due  to  his  failure  to  exercise 
reasonable  care  after  the  hurt  was  received. 
Swift  V.  Bleise,  63  Neb.  739,  89  N.  W.  310, 

57:  147 

1073.  The  refusal  of  instructions  which 
correctly  state  the  law  as  to  an  issue,  which 
would  not  be  material  otherwise,  may  con- 
stitute error  if  the  court  gives  other  instruc- 
tions on  that  issue  which  may  mislead  the 
jury.  Tryon  v.  Pingree,  112  Mich.  338,  70 
iM.  W.  905,  37:  222 


Where  no  instruction  is  requested. 

1074.  Failure  to  give  instructions  not 
asked  is  not  available  error  in*  a  civil  case. 
Mitchell  V.  Bradstreet  Co.  116  Mo.  226,  22  S. 
W.  358,  20:  138 

1075.  Failure  to  state  the  law  on  an  issue 
is  not  ground  for  reversal  if  no  instruction 
on  that  question  is  requested.  Texas  &  P. 
R.  Co.  V.  Gay,  86  Tex.  571,  26  S.  W.  599, 

25:  52 

1076.  Failure  to  give  an  instruction  which 
is  not  requested  upon  a  matter  to  which 
the  attention  of  the  court  is  not  called  is 
not  reversible  error.  State  v.  Coleman,  186 
Mo.  151,  84  S.  W.  978,  09:  381 

1077.  Failure  to  instruct  the  jury  upon  a 
particular  branch  of  the  case  is  not  revers- 
ible error,  where  the  complaining  party  pre- 
sented no  request  for  sucn  instruction. 
Nashville,  C.  &  St.  L.  R.  Co.  v.  Heikens,  112 
Tenn.  378,  79  S.  W.  1038,  65:  298 
As  to  facts  or  evidence. 

1078.  The  refusal  to  give  a  charge  to  the 
effect  that  there  is  no  evidence  tending  to 
show  a  given  state  of  facts  is  not  ground 
for  reversal.  Texas  &  P.  R.  Co.  v.  Miller, 
79  Tex.  78,  15  S.  W.  264,  11:  395 

1079.  It  is  not  error  for  the  court  to  refuse 
to  instruct  the  jury  under  a  request  which 
assumes  the  existence  of  a  fact  to  be  estab- 
lished by  evidence.  Daniels  v.  State,  2 
Penn.   (Del.)   586,  48  Atl.  196,  54:  286 

1080.  Where  testimony  of  accomplices  is 
the  principal  evidence  against  an  accused,  he 
is  entitled,  as  a  matter  of  right,  to  have  an 
instruction  given  to  the  jury  as  to  the  legal 
character  of  such  evidence,  and  a  refusal  of 
it  will  constitute  reversible  error,  unless  the 
evidence  of  his  guilt  is  so  conclusive  that 
such  an  instruction  could  have  no  effect  on 
the  result  reached  by  the  jury.  Hoyt  v.  Peo- 
ple, 140  111.  588,  30  N.  E.  315,  16:  239 
As  to  burden  of  proof. 

1081.  Refusal  to  instruct  the  jury,  upon  a 
trial  for  violation  of  a  Sunday  law,  that  the 
burden  of  proof  is  on  the  state  to  show 
that  the  work  was  not  a  work  of  necessity 
or  charity  within  the  exception  of  the  stat- 
ute, is  error.  State  v.  McBee,  52  W.  Va. 
257,  43  S.  E.  121,  60:  638 

1082.  Refusal  to  charge  the  jury  that  the 
burden  of  showing  that  the  loss  was  caused 
by  fire  was  upon  the  one  seeking  to  recover 
under  a  fire  insurance  policy  is  not  error, 
where  the  fact  was  fully  proved,  with  no 
question  as  to  the  accuracy  of  the  proof. 
Western  Assur.  Co.  v.  J.  E.  Mohlman  Co. 
28  C.  C.  A.  157,  51  U.  S.  App.  577,  83  Fed. 
811,  40:  561 
In  equity  case. 

1083.  Refusal  to  give  instructions  is  not 
cause  for  reversal  in  an  equity  case,  although 
the  court  adopts  the  answer  of  the  jury  in 
its  findings  of  fatt,  where  it  proceeds  at 
length  to  find  upon  all  the  issues  in  the  case. 
Riley  v.  MartineUi,  97  Cal.  575,  32  Pac.  579, 

21:33 

c.  Modification  of  Instruction. 

1084.  When  proper  instructions  are  given 
it  is  no  ground  of  exception  that  they  are 


118 


APPEAL  AND  ERROR.  VII.  m,  5. 


not  given  in  the  form  requested.  Wheeler 
V.  fJrand  Irunk  R.  Co.  70  N.  H.  607,  50  Atl. 
103,  54:  955 

1085.  A  party  cannot  complain  of  the 
court's  modification  of  an  instruction  to 
which  he  is  not  entitled.  Harrington  v.  Los 
Angeles  Ry.  Co.  140  Cal.  514,  74  Pac.  15, 

63:  2.38 

1086.  Modification  of  an  instruction  re- 
quested by  a  party,  which  leaves  it  more 
favorable  to  him  than  he  is  entitled  to,  is 
not  ground  for  reversal  upon  his  complaint. 
Wertheimer-Swarts  Shoe  Co.  v.  United 
States  Casualty  Co.  172  AIo.  135,  72  S.  W. 
635,  61:  766 

1087-1088.  An  improper  or  insufticient 
modification  of  an  instruction  is  not  ground 
for  a  reversal,  if,  on  the  facts  and  evidence 
in  the  case,  it  was  not  misleading.  Prosser 
V.  Montana  C.  R.  Co.  17  Mont.  372.  43  Pac. 
81,-  30:  814 

1089.  A  correction  of  an  instruction  dur- 
ing the  argument  is  not  ground  for  reversal, 
Avhen  it  merely  adds  what  has  been  implied- 
ly expressed  in  another  instruction,  although 
amendments  should  not  ordinarily  be  made 
after  the  argument.  Henderson  v.  Clavton, 
22  Ky.  L.  Rep.  283,  57  S.  W.  1,  53:  145 

1090.  The  elimination  from  a  requested  in- 
struction for  defendant  in  a  criminal  trial, 
of  thP  direction  to  find  the  defendant  not 
guilty  if  the  jury  find  the  facts  hypothesized 
in  the  instruction,  is  not  reversible  error,  al- 
though it  is  the  better  practice  to  add  such 
conclusion  to  each  instruction  which  war- 
rants it.  People  V.  Hecker,  109  Cftl.  451.  42 
Pac.  307.  30:  403 

5.  Argument  or  Remarks  of  Counsel. 

Matters  as  to,  Generally,  see  Trial.  I.  d. 

As  Ground  for  New  Trial,  see  New  Trial,  2. 

See  also  supra,  336. 

For  Editorial  Notes,  see  infra,  XI.  §  14. 

1091.  The  enforcement  of  a  rule  that  at- 
torneys who  testify  in  a  case  cannot,  with- 
out permission  of  the  court,  argue  the  case 
to  the  jury,  is  not  reversible  error,  where 
counsel  did  not,  before  testifying,  explain  his 
jKJsition  and  request  the  court's  permission 
to  sum  up.  State  v.  Gleim,  17  Mont.  17. 
41  Pac.  998,  31:  294 

1091a.  Harsh  and  unjust  statements  of  the 
district  attorney,  not  founded  upon  evidence, 
but  resting  wholly  upon  his  unsupported 
declarations,  persisted  in  after  repeated  ob- 
jections, and  his  right  to  make  them  sus- 
tained by  the  court,  together  with  threats 
of  po])ular  denunciation,  and  an  attempt  to 
frighten  the  jury  by  declaring  that  they 
would  commit  the  unpardonable  sin  if  they 
found  for  the  defendant,  will  constitute 
cause  for  reversal  of  the  conviction.  People 
v.  Fielding,  158  N.  Y.  542.  53  N.  E.  497. 

46:  641 

1002.  It  is  reversible  error  for  the  trial 
judge  to  permit,  without  rebuke,  the  prose- 
cuting attorney  to  state  to  the  jury,  in  a 
j)rosecution  for  burglary,  that,  if  they  do  not 
convict,  we  might  as  well  tear  down  the 
courthouses;  that,  if  defendant  is  not  guilty, 
there  are  too  manv  courts  for  the  case  to  go 


through  to  permit  his  conviction;  that  the 
state  has  proved  that  defendant  stole  the 
property  by  his  pleas  of  guilty,  which  the 
judge  would  not  have  entered  if  it  was  not 
tnie;  so  that  the  case  is  one  of  direct,  and 
not  circumstantial,  evidence,  although  a  2x4 
appellate  court  had  held  that  it  was  the 
latter.  Reason  v.  State,  43  Tex.  Crim.  Rep. 
442,  67  S.  W.  96,  69:  193 

As  to  evidence,  witnesses,  and  facts. 
Argument  as  to.  Generally,  see  Trial,  49-59. 
For  Editorial  Notes,  see  infra,  XI.  §  14. 

1093.  Statements  by  counsel  in  argument 
will  not  be  ground  for  reversal,  where  there 
is  evidence  from  which  the  facts  stated 
might  be  inferred.  Morrill  v.  Palmer,  68  Vt. 
1,  33  Atl.  829,  33:  411 

1094.  An  imwarranted  statement  by  coun- 
sel in  argument  as  to  the  effect  of  evidence 
in  the  case  will  not  cause  a  reversal,  if  it 
was  made  with  reference  to  an  immaterial 
issue  in  the  case.  Noble  v.  Mitchell,  100 
Ala.  519,  14  So.  581,  25:  238 

[Affirmed  by  the  Supreme  Court  of  the 
United  States 'in  164  U.  S.  367,  41  L.  ed.  472, 
17  Sup.  Ct.  Rep.  110.] 

1095.  Allowing  counsel  to  read  to  the  jury 
the  opinion  of  a  judge  overruling  a  demiurer 
in  the  case,  in  which  he  unmistakably  indi- 
cates his  opinion  as  to  the  libelous  character 
of  language  on  which  the  jury  must  decide, 
is  cause  for  reversal.  Press  Pub.  Co.  v.  Mc- 
Donald, 26  U.  S.  App.  167,  11  C.  C.  A,  155, 
63  Fed.  238,  26:  531 

1096.  An  abuse  of  privilege  in  making  an 
opening  statement  will  not  justify  setting 
aside  a  verdict,  unless  there  is  bad  faith  or  a 
gross  misconception  of  what  is  admissible 
whereby  matter  is  stated  which  is  wholly  ir- 
relevant and  calculated  to  create  so  pro- 
found an  impression  that  the  charge  of  the 
court  cannot  eliminate  the  prejudice  pro- 
duced. Prentis  v.  Rates,  93  Mich".  234,  53  N. 
W.  15,3,  17:  4M 

1097.  Assertions  by  counsel  in  argument 
to  the  jury  derogatory  to  the  character  of 
the  opix)sing  party,  based  on  his  own  knowl- 
edge, and  not  on  the  facts  in  evidence,  are 
erroneous.  Gutzman  v.  Clancv,  114  Wis. 
589.  90  N.  W.  1081.  "  58:  744 

1098.  Allowing  the  state's  counsel  to  argue 
before  the  jurj',  after  objection  by  the  pris- 
oner's coimsel,  that  the  defendant's  charac- 
ter is  b^.d  because  ne  had  a  right  to  prove 
his  good  character  and  has  not  done  so.  is 
an  error  which  will  require  a  reversal  of  a 
conviction.  Bennett  v.  State,  86  Ga.  401, 
12  S.  E.  806,  12:  449 

1099.  The  conduct  of  the  assistant  prose- 
cutor on  a  trial  for  rape  in  repeateaiy  asking 
the  son  of  the  accused  on  cross-examination 
if  he  had  not  stated  to  a  specified  person 
that  he  suspected  his  father  of  having  com- 
mitted a  similar  offense  with  other  girls,  one 
of  whom  was  a  member  of  his  family,  and 
that  such  conduct  on  the  part  of  the  accused 
caused  the  death  of  the  witness's  mother, 
and  that  if  at  such  conversation  the  witness 
did  not  cry  and  say  "I  cannot  go  against  my 
father,  even  if  he  is  guilty," — is  ground  for 
reversal.  State  v.  Irwin,  9  Idaho,  35,  71 
Pac.  608,  60:  716 


APPEAL  AND  ERROR,  VII.  m,  6. 


119 


1100.  A  statement  by  the  prosecuting  at- 
torney in  opening  a  case  of  liomieide  by 
shootinor  and  throat-cutting,  that  he  will 
show  that  defendant  did  both,  will  not  re- 
quire reversal  of  a  conviction,  although  no 
attempt  is  made  to  prove  that  defendant 
did  the  latter,  if  there  is  nothing  to  show 
that  the  statement  was  not  made  in  good 
faitli.  and  the  effect  was  in  fact  to  weaken 
the  case  of  the  prosecution.  People  v.  Lewis, 
124  Cal.  551,  57  Pac.  470,  45:  783 

1101.  The  jury  in  a  murder  case  cannot 
infer  that  a  verdict  was  rendered  by  a  coro- 
ner's jury,  merely  because  the  prosecuting 
attorney  asked  a  witness  whether  or  not  he, 
as  ;i  member  of  such  jury,  did  not  render 
sucli  verdict,  which  question  the  witness  was 
not  permitted  to  answer,  so  as  ttt^make  the 
conduct  of  the  prosecuting  attorney  ground 
for  reversal.  State  v.  Coleman,  186  Mo.  151, 
84  S.  W.  978.  69:  381 
Correction  or  withdrawal. 

Waiver  of  Errors  Below,  see  supra,  698. 
For  Editorial  Notes,  see  infra,  XI.  §  14. 

1102.  Misuse  of  a  paper  admitted  in  evi- 
dence by  counsel  in  argument  wrongfully 
construing  it  as  an  admission  of  defendant's 
liability  is  not  reversible  error,  if  the  judge 
cautioned  the  jury  not  to  put  that  interpre- 
tation on  it.  Shaw  v.  Chicago  &  G.  T.  R.  Co. 
123  Mich.  629,  82  N.  W.  618,  49:  308 

1103.  Remarks  of  counsel  in  argument  as 
to  matters  not  in  evidence  are  not  ground  for 
reversal  on  appeal,  where  the  court  declined 
to  permit  him  to  proceed,  and  charged,  the 
jury  to  disregard  statements  as  to  facts  not 
in  evidence,  and  the  remarks  were  not  mani- 
festly intended  to  unduly  influence  or  mis- 
lead the  jurv.  Rovd  v.  Portland  Gen.  Elec. 
Co.  37  Or.  567,  62  Pac.  378,  52:  509 

1 1 04.  An  improper  statement  by  counsel 
in  opening  a  case,  which  is  immediately 
withdrawn  after  an  exception,  with  an  ac- 
knowledgment that  it  was  not  justified  un- 
der the  existing  state  of  the  record,  will  not 
be  regarded  on  appeal  as  prejudicial  error, 
if  it  was  not  so  considered  by  the  trial  judge. 
Erb  V.  German-American  Ins.  Co.  98  Iowa, 
ma.  67  X.  W.   583,  40:  845 

1 104a.  The  immediate  withdrawal  and  re- 
traction of  an  obnoxious  and  untrue  state- 
ment made  by  counsel  during  argument  to 
the  jury,  upon  objection  by  opposing  coun- 
sel, removes  any  prejudice  that  might  otlier- 
wi.se  have  been  caused  bv  such  statement. 
State  V.  Gibbs,  10  Mont.  213,  25  Pac.  289, 

10:  749 

1105.  In  an  action  for  malpractice,  coun- 
ael's  comment  on  the  failure  to  call  defend- 
ant and  certain  other  physicians  who  were 
present,  as  witnesses,  if  it  was  improper, 
could  have  worked  no  prejudice  when  it  was 
promptly  counteracted  by  the  disapprobation 
of  the  judge  and  his  charge  that  no  presump- 
tions c<mld  be  drawn  from  the  failure  to 
call  such  witnesses.  Nelson  v.  Harrington, 
72  Wis.   59L  40  N.  W.  228,  1:  719 

HOG.  The  judgment  should  be  reversed 
and  a  new  trial  granted  in  a  criminal  case 
where  the  solicitor  general,  in  his  address 
to  the  jury,  uses  highly  improper  language, 


not  authorized  by  the  evidence  or  any  fair 
deduction  therefrom,  and  the  court  fails  to 
rebuke  him  or  charge  the  jury  with  reference 
to  the  matter,  and,  upon  motion  of  the  coun- 
sel for  the  accused,  refuses  to  declare  a  mis- 
trial. Ivey  V.  State,  113  Ga.  1062,  39  S.  E. 
423,  54:  959 

6.  Remarks  or  Conduct  of  Judge. 

See  also  supra,  1091. 

1107.  The  court's  telling  the  jury  the  legal 
effect  of  their  answers  to  questions  submit- 
ted to  them  for  a  special  verdict  is  ground 
for  reversal.  Gerrard  v.  La  Crosse  City  R. 
Co.  113  Wis.  258,  89  N.  W.  125,  57:  465 

1108.  A  statement  by  the  court  in  admit- 
ting in  evidence  in  a  libel  suit  a  circular  con- 
taining tne  libelous  letter  the  republication 
of  which  is  not  shown  to  have  been  author- 
ized by  defendant,  to  the  effect  that  the  cir- 
cular was  the  natural  effect  of  sending  the 
letter  under  the  circumstances,  is  reversible 
error  as  tending  to  lead  the  jury  to  believe 
that  the  question  of  defendant's  responsi- 
bility for  the  republication  is  settjed  bv  the 
court.  Coffin  v.  Brown.  94  Md.  190,  50  Atl. 
567,  55:732 

1109.  A  remark  by  the  trial  judge  to 
counsel  in  the  presence  of  the  jury  in  a 
criminal  case,  indicating  that  in  his  opinion 
the  case  is  not  one  depending  on  circumstan- 
tial evidence,  and  that  he  gives  instructions 
on  that  subject  only  in  deference  to  the 
opinion  of  the  higher  court,  is  reversible  er- 
ror. Reason  v.  State,  43  Tex.  Crim.  Rep. 
442,  67  S.  W.  96,  69:  193 

1110.  Remarks  by  the  court  in  the  pres- 
ence of  the  jury,  in  a  colloquy  with  counsel 
as  to  the  propriety  of  submitting  a  special 
finding,  will  not  require  reversal  because 
they  indicate  the  court's  opinion  upon  the 
defense  of  contributory  negligence,  if  the 
jury  have  been  fully  instructed  on  that  ques- 
tion, and  the  remarks  are  not  intended  for 
their  guidance,  and  do  not  prejudice  defend- 
ant's case.  Bov'd  v.  Portland  General  Elec- 
tric Co.  40  Or.  "126,  66  Pac.  576,  57:  619 
Absence  of  judge. 

1111.  The  absence  of  a  judge  from  a  court- 
room while  a  trial  is  in  progress,  for  a  brief 
space  of  time,  will  not  be  ground  for  re- 
versal of  the  judgment,  where  the  evidence 
demanded  the  verdict  rendered  and  his  ab- 
sence was  known  to  counsel,  who  made  no 
objection,  and  no  request  to  suspend  the 
trial,  and  no  motion  for  a  mistrial  upon  the 
judge's  return.  Home  v.  Rodgers,  110  Ga. 
362,  35  S.  E.  715,  49:  176 

1112.  The  temporary  relinquishment  bj'  a 
judge  of  the  control  of  proceedings  in  a 
trial  for  felony  by  going  250  or  300  yards 
from  the  court  room,  leaving  a  member  of 
the  bar  presiding  in  his  absence,  and  being 
gone  about  twenty  minutes,  during  which 
the  trial  goes  on,  amounts  to  a  dissolution 
of  the  court  which  makes  the  trial  void. 
Ellerbee  v.  State,  75  Miss.  522,  22  So.  950. 

41:569 


120 


APPEAL  AND  ERROR,  VII.  m,  7. 


7.  As  to  Jury;  Conduct  of  Trial. 

c.  In  General. 

Determinins  Case  Without  Calling  Jury,  see 
Jury,  20. 

1113.  A  defendant  wTio  has  the  benefit  of 
an  inspection  of  a  letter  offered  to  cx)ntra- 
dict  his  testimony,  and  who  testifies  that 
he  did  not  write  it,  is  not  injured  by  the 
fact  that  he  is  not  shown  the  letter  or  asked 
in  regard  to  it  until  after  it  is  read  in  evi- 
dence. Lewis  V.  Tapman,  90  Md.  294,  45 
Atl.  459,  47:  385 

1114.  A  judgment  will  not  be  reversed  for 
improperly  allowing  a  former  verdict  to  go 
to  the  jury  with  other  papers,  where  it  was 
not  known  or  read  by  them  until  their  own 
ver(fict  was  agreed  upon.  Georgia  P.  R.  Co. 
V.  Dooly,  86  Ga.  294,  12  S.  E.  923,         12:  342 

1115.  The  fact  that  a  party  is  compelled 
to  close  his  case  before  all  his  witnesses  have 
been  examined  is  not  reversible  error,  where 
the  time  for  taking  testimony  was  limited 
at  his  request,  in  order  that  a  decision  might 
be  reached  before  the  adjournment  of  the 
term,  and  he  was  allowed  more  time  than 
he  said  he  would  require  when  the  date  for 
closing  the  trial  was  fixed,  especially  where 
he  does  not  show  that  any  material  evidence 
was  thereby  lost.  Jones  v.  Glidewell,  53 
Ark.  161,  13  S.  W.  723,  7:  831 
Opening  and  closing. 

As  to  Right  to  Open  and  Close  Generally, 
see  Trial,  40-44. 

1116.  Error,  if  any,  in  refusing  defendant 
in  an  action  on  a  life  insurance  policy  the 
right  to  open  and  close,  is  not  ground  for  re- 
versal, where  defendant  was  not  thereby 
prejudiced  in  any  manner.  Seiler  v.  Eco- 
nomic L.  Asso.  105  Iowa,  87,  74  N.  W.  941, 

43:  537 
Absence  of  attorney. 

1117.  The  accidental  absence  of  the  attor- 
ney of  a  party  when  the  verdict  is  received, 
not  due  to  any  order  or  action  of  the  court 
or  any  conduct  by  the  counsel  or  parties 
on  the  other  side,  is  not  cause  for  reversal. 
Fitzgerald  v.  Clark,  17  Mont.  100,  42  Pac. 
273.  30:  803 

[Affirmed  by  the   Supreme  Court  of  the 
United  States  in  171  U.  S.  92,  58  L.  ed.  87, 
18  Sup.  Ct.  Rep.  941.] 
Refusal  to  elect  between  counts. 
As  to  Election  Between  Counts,  Generally, 
see  Trial,  I.  b. 

1118.  There  can  be  no  reversal  of  an  order 
dismissing  the  suit  because  of  plaintiff's  re- 
fusal to  comply  with  the  direction  of  the 
court  to  elect  upon  which  cause  of  action 
stated  in  his  complaint  he  will  proceed,  al- 
though the  direction  is  erroneous,  since  un- 
til reversed  the  direction  is  binding  and  as 
capable  of  enforcement  as  any  other  order, 
which  may  be  by  dismissal  of  the  suit  for 
disobedience.  Craft  Refrigerating  Mach.  Co. 
v.  Quinnipiac  Brew.  Co.  63  Conn.  .551,  29 
Atl.  76.  25:  856 
Order  of  reception  of  evidence. 

As   to  Order  of   Proof  (ieneraliy,  see  Trial, 
20-20. 


1119.  Permitting  the  prosecution  to  offer 
unimportant  evidence  after  the  defense  has 
closed  does  not  require  reversal  of  a  convic- 
tion. People  V.  Lewis,  124  Cal.  551,  57  Pac. 
470,  45:  783 

&.  Summoning  and  Selection  of  Jury. 

Errors  Cured  below,  see  supra,  676. 
Summoning  and  Selection  of  Jury  Generally, 

see  Jury,  II. 
Ground  for  New  Trial  as  to,  see  New  Trial, 

III.  c. 

1120.  The  provisions  of  the  Oklahoma 
statute  in  relation  to  the  selecting,  summon- 
ing, and  impaneling  of  a  jury  are  not  man- 
datory, but  merely  directory,  and  hence 
mere  irregularities  will  not  be  deemed  pre- 
judicial unless  it  is  clearly  shown  that  some 
injury  has  resulted  therefrom.  Queenan  v. 
Territory,  11  Okla.  201.  71  Pac.  218,     61:  324 

1121.  Filing  the  sheriff's  affidavit  that  he 
was  biased,  taken  upon  a  challenge  to  a  spe- 
cial venire  summoned  by  him,  embodying 
facts  brought  out  while  the  jury  were  ex- 
cluded from  the  room,  is  not  reversible  er-  ^ 
ror.  People  v.  Ebanks,  117  Cal.  652,  49  Pac. 
1049,  40:  269 

1122.  Exclusion  of  negroes  from  jury  duty 
upon  the  trial  of  a  negro  is  not  ground  for 
reversal  if  the  exclusion  was  not  designed. 
Johnson  v.  State  (N.  J.  Err.  &  App.)  59  N. 
J.  L.  535,  37  Atl.  949,  38:  373 

1123.  The  excusing  of  a  competent  juror 
on  motion  of  the  court  itself  is  not  ground 
of  error,  if  a  fair  and  impartial  jury  was 
obtained.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co. 
V.  Montgomery,  152  Ind.  1,  49  N.  E.  582, 

69:  875 

1124.  Excusing  for  cause  some  of  those  on 
the  venire  does  not  constitute  available 
error  to  one  who  is  tried  by  twelve  qualified, 
competent  jurors.  People  v.  Searcey,  121 
Cal.  L  53  Pac.  359,  41:  157 

1125.  The  denial  of  a  challenge  to  a  juror 
for  cause  is  not  ground  of  error  unless  ap- 
pellant exhausted  his  peremptory  challen- 
ges. State  V.  Ilartlev,  22  Xev.  342,  40  Pac. 
372,  '  28:  33 

1126.  A  refusal  to  sustain  challenges  for 
proper  cause,  necessitating  peremptory  chal-  i 
lenges  on  the   part  of  the  accused,  will  be           j 
considered  on   appeal   as  prejudicial,   where  ' 
the  accused  has  been  compelled  subsequent- 
ly to  exhaust  all  his  peremptory  challenges 
before  the  final  selection  of  the  jury.    State 

V.  Stenly,  30  Wash.   134,  70  Pac.  241, 

63:  807 

1127.  A  violation  of  the  statute  prescrib- 
ing the  order  of   peremptory  challenges   is  i 
a  substantial  and  not  a  mere  technical  error.           1 
People  v.  McQuade,  110  N.  Y.  284,  18  N.  tu,            ' 
156,                                                                    1:  273 

c.  Conduct  of  or  Interference  with  Jury. 

Gound  for  New  Trial  as  to,  see  New  Trial, 
III.  d. 

1128.  The  moderate  use  of  intoxicants  by 
the  jurors  in  a  capital  case,  though  improp- 
er, will  not  require  the  reversal  of  a  verdict 


APPEAL  ATs^D  ERROR,  VII.  m,  7. 


121 


against  the  prisoner,  where  none  of  the 
jurors  became  intoxicated,  and  it  is  clearly 
shown  that  no  injury  resulted  therefrom  to 
the  accused.  Gamble  v.  State,  44  Fla.  42!), 
33  So.  471,  60:  547 

1129.  An  alleged  error  in  allowing  the 
jury  to  separate  temporarily,  without  being 
admonished  by  the  trial  court  not  to  con- 
verse among  themselves  or  with  others  up- 
on the  subject  of  the  trial,  is  without  pre- 
judice, if,  upon  undisputed  facts,  no  other 
verdict  could  have  been  properly  rendered. 
Kirby  v.  Western  U.  Teleg.  Co.  4  S.  D.  105, 
43'),  7  S.  D.  623,  55  N.  W.  759,  57  N.  W. 
ion.  65  N.  W.  37,  30:  612 
Coercion  of  jury. 

Improper  Influence  on,  or  Coercion  of  Jury 
as  Ground  for  New  Trial,  S«e  New 
Trial,  34-39. 

1130.  It  is  error  to  susgest  to  a  jury  as 
a  reason  for  agreeing,  that  failure  to  agree 
is  "almost  to  confess  incompetency,"  as 
personal  considerations  should  never  be  per- 
mitted to  influence  their  conclusions.  Peo- 
ple v.  Sheldon,  156  N.  Y.  268,  50  N.  E.  840, 

41 :  644 

1131.  A  jury  must  be  deemed  coerced  so 
that  a  judgment  of  conviction  based  on 
their  verdict  will  be  reversed,  when  they 
agreed  after  they  had  been  out  for  eighty- 
four  hours  without  beds  or  cots,  during  for- 
ty of  which  they  had  been  confined  in  a 
small  room,  and  from  the  remarks  of  the 
court  and  the  treatment  they  had  received 
they  had  every  reason  to  believe  t'hat  a 
still  longer  confinement  on  chairs  and  hard 
benches  was  in  store  for  them,  while  the 
jvidffe  had  also  told  them,  after  the  foreman 
had  reported  that  their  agreement  was  im- 
possible, that  a  failure  to  agree  was  "almost 
to   confess  incompetency."  Id. 

d.  Submission  of  Issues;   Directing  Verdict. 

Errors  as  to.  Cured  or  Waived  below,  see 
supra,  VII.  k,  5. 

1132.  The  failure  to  rule  upon  a  motion 
for  a  nonsuit,  where  both  parties  proceeded 
to  trial  on  the  merits  and  proposed  findines 
which  were  passed  upon,  will  not  put  the 
plaintiff  in  a  better  position  than  if  the 
motion  had  been  formally  denied.  Burt  v. 
Oneida  Community,  137  N.  Y.  346,  33  N.  E. 
307,  19:  297 
Submitting  issues. 

As  to  Authority  of  Local  Lodge,  see  Benev- 
olent Societies,  11. 

As  to  Submissnon  of  Issues  to  Jury  General- 
ly, see  Trial.  II. 

As  to  Special  Interrogatories  Generally,  see 
Trial.  IL  e. 

1133.  Refusal  to  take  the  case  from  the 
jury  is  not  error  if  there  is  evidence  tending 
to  support  the  cause  of  action  set  up  in 
the  declaration.  Illinois  C.  R.  Co.  v.  Beebe. 
174  111.  13,  50  N.  E.  1010.  43:  210 

1134.  Error  in  sujimitting  a  question  of 
law  to  the  jury  is  harmless,  if  their  deci- 
sion upon  the  question  is  correct.  Chilton 
v.  Sf.  T,ouis  &  L  M.  R.  Co.  114  Mo.  88,  21 
S.  W.  458,  19:  269 


1135.  An  error  in  submitting  a  question 
to  the  jury  is  not  material,  where  the  court 
has  sufficiently  ruled  in  accordance  with  the 
jury's  decision  by  refusing  to  set  aside  the 
verdict.  Central  Lithographing  &  E.  Co.  v. 
Moore,  75  Wis.  170,  43  N.  W.  1124,       6:  788 

1136.  When,  upon  a  trial  to  a  jury,  im- 
material or  improper  questions  for  special 
findings  are  submitted  to  a  jury  at  the  re- 
quest of  a  party  afterwards  complaining, 
and  the  jury  is  discharged  without  answer- 
ing such  questions,  the  error  is  without 
prejudice.  Missouri  P.  R.  Co.  v.  Vandeven- 
ter,  26  Neb.  222,  41  N.  W.  998,  3:  129 

1137.  Leaving  to  the  jury  the  construc- 
tion of  a  record  is  harmless,  if  they  find 
what  the  court  should  have  directed  them  to 
find.  Morey  v.  Hoyt,  62  Conn.  542,  26  Atl. 
129,  19:  611 

1138.  No  complaint  can  be  made  of  the 
act  of  the  court  in  leaving  the  interpreta- 
tion of  a  written  instrument  to  the  jury 
where  their  finding  accords  with  the  legal 
interpretation.  Quebe  v.  Gulf,  C.  &  S.  F.  R. 
Co.  98  Tex.  6,  81  S.  W.  20,  66:  734 

1139.  Submission  to  the  jury  of  the  ques- 
tion whether  or  not  services  rendered  to  an 
infant  were  necessaries,  is  not  available  as 
error  to  defendant,  who  is  sought  to  be  held 
liable  therefor,  where  the  jury  found  them 
to  be  necessaries,  and  the  court  would  have 
been  compelled  to  make  the  same  ruling  had 
it  undertaken  to  decide  the  question.  Crafts 
V.  Carr,  24  R.  I.  397,  53  Atl.  275,       60:  128 

1140.  That  the  damages  awarded  a  widow 
for  the  negligent  killing  of  her  husband 
fall  short  of  the  value  of  his  life  will  not 
prevent  a  reversal  in  case  the  court  per- 
mitted a  consideration  of  her  loss  of  com- 
fort and  enjoyment  in  awarding  the  dam- 
ages, and  there  is  nothing  to  show  how 
much,  if  anything,  was  allowed  for  such 
loss.  Illinois  C.  R.  Co.  v.  Benz,  108  Tenn. 
670,  69  S.  W.  317,  58:  690 

1141.  Submission  to  the  jury  of  the  issue 
of  murder  in  the  first  degree  is  not  reversi- 
ble error  where  accused  is  found  guilty  of 
murder  in  the  second  degree,  thereby  ac- 
quitting him  of  the  higher  charge.  White 
V.  State,  44  Tex.  Crim.  Rep.  346,  72  S.  W. 
173,  63:  660 

1142.  A  judgment  will  not  be  reversed  for 
the  refusal  of  the  court  to  withdraw  from 
the  jury  the  consideration  of  the  question 
presented  by  one  charge  in  an  indictment, 
as  to  which  there  has  been  a  failure  of  proof, 
where  the  verdict  and  sentence  are  fully 
justified  by  the  proof  of  another  charge  con- 
tained in  the  same  indictment.  People  v. 
Budd,  117  N.  Y.  1,  22  N.  E.  670,  5:  559 
Refusal  or  failure  to  submit. 

Refusal  of  Special  Interrogatories  Generally, 
see  Trial,  II.   e. 

1143.  It  is  error  not  to  submit  to  the 
iurv  facts  fairlv  in  the  case.  J.  Thompson 
INTfg.  Co.  V.  Gunderson,  106  Wis.  449,  82  N. 
W.   299.  •  49:  859 

1144.  Refusal  to  submit  special  questions 
as  to  evidentiary  facts  is  not  cause  for  re- 
versal. McKeon  v.  Chicaio.  M.  &  St.  P.  R. 
Co.  94  Wis.  477,  69  N.  W.   175,  35:  252 

1145.  The  refusal  to  submit  an  issue  to 


122 


APPEAL  AND  ERROR,  VII.  m,  g- 


the  jury  is  not  error  if  the  view  of  the  law 
■embraced  in  it  could  have  been  presented 
to  the  jury  by  pertinent  instructions  upon 
the  issues  submitted.  Blackwell  v.  Moor- 
man, 111  N.  C.  151,  16  S.  E.  12,         17:  729 

1146.  A  judgment  for  defendant  will  be 
reversed  for  excluding  from  the  considera- 
tion of  the  jury  an  element  which  might 
have  entitled  plaintiff  to  nominal  damages 
at  least,  although  it  is  difficult  to  say  how 
the  jury  could,  under  the  evidence,  have 
determined  the  amount  of  damages  attribu- 
table thereto.  Moore  v.  Xew  York  Elev.  R. 
Co.  130  X.  Y.  523.  29  X.  E.  997,  14:  731 
Demurrer  to  evidence. 

Errors  as  to,  Waived  below,  see  supra,  712. 
As  to  Demurrer  to  Evidence  Generallv,  see 
Trial,  II.   d,  4. 

1147.  A  ruling  sustaining  a  demurrer  to 
the  evidence  will  not  be  reversed,  notwith- 
standing that  sufficient  evidence  was  ac- 
tually admitted  by  the  trial  court  to  make 
a  prima  faci*^  case  for  plaintiff,  where  a 
part  of  the  evidence  essential  for  that  pur- 
pose was  incompetent  and  admitted  over 
proper  objection,  although  it  was  not  for- 
mally stricken  out.  and  no  notice  was  giv- 
•en  plaintiff  that  it  was  to  be  disregarded. 
Lee  V.  ^lissouri  P.  R.  Co.  67  Kan.  402,  73 
Pac.  110,  63:  271 
Directing  verdict. 

P>rors   as   to,  Waived  or   Cured  below,  see 

supra,  708-711. 
As   to   Direction   of   Verdict   Generallv,    see 

Trial,  II.  d,  3. 

1148.  The  evidence  failing  to  disclose  in 
what  amount,  if  any,  the  plaintiffs  were 
damaged,  the  court  erred  in  directing  a  ver- 
dict in  their  favor  for  the  definite  amount 
for  which  suit  was  brought.  Western  U. 
Toleg.  Co.  V.  Waxelbaum,  113  Ga.  1017,  39 
S.  E.  443.  56:  741 

1149.  A  verdict 'by  direction  of  the  court 
when  ni)  verdict  was  required,  but  the  court 
should  Iiave  disposed  of  the  case  on  demur- 
rer to  the  evidence,  is  not  substantial  error 
if  the  jurv  disposed  of  the  case  correctly. 
Mapel  v.  .tohn.  42  W.  Va.  .30.  24  S.  E.  608. 

.32:  800 

1150.  A  judgment  will  not  be  reversed  for 
a  general  charge  directing  a  verdict,  erron- 
eous been  use  not  indicating  the  specific 
ground  of  the  ruling,  if  no  ground  appears 
on  which  the  adverse  party  could  prevail  in 
the  action.  Weinlienmaver  v.  Bitner.  88  Md. 
325,  42  Atl.  245,  "  45:  440 

1151.  A  judgment  will  not  be  reversed 
for  the  error  of  the  court  in  directing  a  ver- 
dict for  plaintiff  when  the  case  should  have 
been  submitted  to  the  jury  because  the 
right  of  recoverj^  depended  on  oral  testi- 
mony, where  no  interest  of  defendant  would 
be  suliscrvod  by  reversal,  if  the  assignments 
of  error  do  not  contain  the  language  of  tlie 
court  in  totidem  verbis,  and  the  question  is 
not  argued  for  appellant.  Genesee  Fork 
Tmprov.  Co.  v.  Tve3.  144  Pa.  114.  22  Atl. 
.S87.  13:  427 


8.  As  to  Findings,  Verdict,  or  Judgment. 

As  to  Findings  Generally,  see  Trial,  TV. 
As  to  Verdict  Generally,  see  Trial,  V. 
For  Editorial  Notes,  see  infra,  XL  §  14. 

1152.  A  judgment  will  not  be  reversed 
for  error  in  a  conclusion  of  law  stated  by 
the  lower  court,  if  a  proper  judgment  is 
rendered  upon  the  facts  found  by  it.  White 
V.  Chicago,  St.  L.  &  P.  R.  Co.  122  Ind.  317. 
23  N.  E.  782,  7:  257 

1153.  That  the  personalty  was  erroneous- 
ly directed  to  be  exhausted  before  the  real 
estate,  by  a  judgment  subjecting  to  pay- 
ment of  debts  of  the  assignor  property  as- 
signed in  fraud  of  the  rights  of  creditors, 
will  not  require  a  reversal  of  the  judgment 
if  the  entire  property  is  insufficient  to  sat- 
isfy the  creditors'  claims.  Oppenheimer  v, 
Collins,  115  Wis.  283,  91  N.  W.  690,       60:  406 

1154.  That  a  judgment  for  an  assess- 
ment upon  a  stockholder  of  a  corporation 
was  reversed  in  toto  by  the  appellate  divi- 
sion when  a  part  of  the  assessment  was 
valid  will  not  require  interference  by  the 
court  of  appeals,  to  which  the  case  has 
been  taken  under  a  stipulation  for  judgment 
absolute  in  case  of  affirmance,  where  the 
whole  claim  was  treated  as  one  in  the  lower 
courts.  Bank  of  China,  Japan,  and  the 
Straits  v.  Morse,  168  N.  Y.  458,  61  K  E. 
774,  56:  139 
Verdict  disregarding  instructions. 

1115.  A  verdict  will  riot  be  set  aside  be- 
cause the  jury  disregarded  an  instruction 
which  is  erroneous  in  law.  Watts  v.  Nor- 
folk &  W.  R.  Co.  39  W.  Va.  106,  19  S.  E. 
521,  23:  674 

1156.  A  verdict  rendered  in  disregard  of 
correct  instructions  will  be  set  aside  on  ap- 
peal. Fi.sher  v.  West  Virginia  &  P.  R.  Co. 
42  W.  Va.  183,  24  S.  E.  570.  33:  69 

1157.  A  verdict  ignoring  the  instructions 
of  the  court  to  limit  the  recovery  to  the 
amount  required  to  repair  the  building,  and 
givinar  the  whole  amount  of  insurance  there- 
of, will  be  set  aside.  Limburg  v.  German  F. 
Tn.s.  Co.  90  Iowa.  709.  57  X.  W.  626,  23:  99 
Insufficiency  of  verdict  or  finding. 

1158.  A  judgment  will  not  be  reversed  for 
insufficiency  of  the  .special  verdict  on  which 
it  is  founded,  if  the  verdict  supports  the 
theory  of  the  complaint  and  the  issuable 
facts  found  support  the  judgment,  although 
it  is  unnecessarily  long  and  contains  evi- 
dentiary facts,  as  well  as  conclusions  from 
the  facts  stated.  Brush  Electric  Liijhtin<r 
Co.    v.  Kellev.    126   Ind.   220.   25   X.   E.   812. 

10:  2.50 

1159.  A  special  finding  must  be  consid- 
ered as  a  whole,  and  cannot  be  assailed  in 
parts;  and  if.  taken  as  a  whole,  the  find- 
ins  legitimately  supports  the  judgment,  it 
will  he  uphold.  A  finding  containing  more 
facts  than  necessary  is  not  objectionable, 
if  such  facts  do  not  establish  another  cause 
of  action.  Cleveland.  C.  C.  &  I.  E.  Co.  v. 
Closser,   126  Ind.  348.  26  X.  E.   1.59,     9:  754 

1160.  Insufficient  finding  upon  certain  is- 
sues in  the  case  does  not  require  reversal 
unless  the  findinir  of  those  issues  in  favor 
of   appi^Ilant    would   entitle  him   to   a  judg- 


APPEAL  AND  ERROR,  Vlll.  a. 


123 


ment.     Blochman  v.  Spreekels,  135  Cal.  662, 
«67  Pac.  1061,  57:  213 

1161.  The  omission  of  admitted  or  undis- 
puted facts  from  a  finding  is  not  an  error 
that  aflects  the  judgment,  unless,  by  cor- 
recting the  record  and  including  them  in 
the  finding,  it  appears  that  the  court  erred 
in  some  mling  of  law  material  to  the  judg- 
ment. Hoadley  v.  Savings  Bank  of  Dan- 
"bury,  71  Conn.  599,  42  At  I.  667.  44:  321 
Pailure  to  find. 

1162.  Want  of  a  finding  will  not  warrant 
A  reversal  where  the  evidence  would  not 
have  justified  a  finding  in  favor  of  the  com- 
plaining party.  White  v.  White.  82  Cal. 
427.  23  Pac.  276,  7:  799 

1163.  Failure  to  make  a  finding  on  an  is- 
sue is  not  ground  for  reversal,  if  "dhe  find- 
ing would  necessarily  have  been  prejudicial 
to  the  appellant,  and  the  facts  found  are 
sufficient  to  sustain  the  decree.  Hague  v. 
JSTephi  Irrig.  Co.  16  Utah,  421,  52  Pac.  765, 

41:  311 

1164.  Refu-sal  to  find  facts  material  to 
sustain  a  defense,  and  which  are  establislicd 
hv  undisDuted  evidence,  is  error.  Farmers' 
Loan  &  T.  Co.  v.  New  York  &  N.  R.  Co.  150 
N.  Y.  410,  44  N.  E.  1043.  34:  76 
Amount;  measure  of  damages. 

lltlo.  Rendering  judgment  lor  a  sum  in 
excess  of  tliat  covered  by  the  prayer  of  the 
•complaint  is  not  ground  for  reversal,  where 
it  does  not  exceed  the  amount  due.  as  the 
complaint  might  have  been  amended  if  the 
objection  had  been  made  in  the  lower  court. 
Ke-tuc-e-mun-guah  v.  McClure.  122  Ind.  541, 
23   X.   E.    1080.  7:  782 

1166.  Failure  to  credit  overdue  premium 
notes  on  a  life  insurance  policy  in  entering 
judgment  thereon,  as  provided  in  the  con- 
tract, is  cause  for  reversal.  Union  C.  L. 
Ins.  Co.  V.  Spinks.  26  Kv  L.  Rep.  1205, 
S3  S.  W.  615.  ■  69:  264 

1167.  The  right  to  nominal  damages  is 
"not  suflicient  ground  for  reversing  a  judg- 
ment dismissing  an  action.  United  States 
Exp.  Co.  v.  Koerner.  65  Minn.  540.  68  X.  W. 
181.  33:  600 

1168.  A  decree  will  not  be  reversed  for 
failure  to  include  the  proper  elements  of 
damages  in  the  order  of  reference  to  ascer- 
tain the  measure  of  damages  for  breach  of 
contract,  if  at  the  reference  evidence  is 
jGjiven  of  every  proper  element  of  damage,  so 
that  the  complainant  ha.s  the  full  benefit  of 
them.  Jonas  v.  Xoel.  98  Tenn.  440.  39  S.  W. 
724.  36:  862 

116!).  The  failure  of  the  court  upon  a 
"trial  without  a  jury  to  definitely  adopt  one 
of  the  two  measures  of  damages  contended 
for  by  the  respective  parties  is  not  reversi- 
ble error,  where  the  application  of  either 
rul(>  leads  to  substantially  the  same  result. 
<jlustaf8on  V.  Rustemever.  70  Conn.  125.  39 
Atl.  104,  ■  .39:  644 

1170.  A  decision  awarding  punitive  dam- 
ages must  be  reversed  where,  although  they 
were  allowable  under  the  facts  set  out  in 
the  first  count  of  the  declaration,  they  were 
not  asked  for  by  it.  but  were  asked  for  in 
another  count  under  which  no  damages  were  I 
allowable,  where,  from  the  instructions  and 


the  award,  it  is  evident  that  they  were  al- 
lowed under  the  wrong  count.  Illinois  C. 
R.  Co.  V.  Harper,  83  Miss.  560,  35  So.  764. 

64:  283 
Wrong  reasons. 

1171.  A  judgment  which  is  correct  is  not 
affected  by  the  reasons  on  which  it  was 
based.  Pennsylvania  Co.  v.  Versten,  140 
111.  637,  30  N.  E.  540.  15:  798 

1172.  The  expression  of  an' erroneous  opin- 
ion will  not  require  the  reversal  of  a  de- 
cision which  makes  a  proper  disposition  of 
the  case.  Underbill  v.  Hernandez,  13  C.  C. 
A.   51.   26   U.    S.     App.     573.    65     Fed.    577. 

38:  405 
[Affirmed   bv   the   Supreme  Court   of  the 
United   States"  in  168  U.   S.  250.  42  L.   ed. 
456.  18  Sup.  Ct.  Rep.  83.] 

1173.  On  appeal  from  a  general  term  de- 
cision which  held  that  the  overruling  of  a 
motion  for  a  new  trial  by  the  special  term 
was  erroneous,  the  court  is  not  restricted  to 
the  particular  points  or  reasons  considered 
by  the  general  term  as  the  basis  of  its  de- 
cision, but  may  uphold  it  on  other  grounds 
presented  by  an  assignment  of  errors  in  the 
general  term,  if  the  conclusion  was  correct. 
Springer  v.  Rvram,  1.37  Ind.  15.  36  X.  E. 
361.  ■  23:  244 

1174.  Plaintiff  in  an  action  for  personal 
injuries  having  charged  the  defendant  with 
negligence  in  three  particulars,  and  the 
trial  judge  havinn'  withdrawn  from  the 
consideration  of  the  jury  the  first  two 
grounds  of  complaint  because  of  want  of 
evidence  to  support  them,  and  submitted 
the  case  solely  upon  the  third  ground,  upon 
which  a  verdict  was  found  against  tlie  de- 
fendant, the  judgment  cannot  be  sustained 
upon  appeal  upon  the  theory  thai  the  evi- 
dence would  have  justified  a  finding  again.st 
defendant  upon  either  of  the  first  two 
grounds.  Fielders  v.  X^orth  .Tersev  Street 
R.  Co.  (X.  .7.  Err.  &  App.)  68  N.  .f.  L.  .343. 
53   Atl.   404.  59:  455 


VIII.  .ludgment. 
a.  In    General. 

For  Editorial  Xotes.  see  infra.  XI.  §  15. 

1175.  .ludgment  absolute  must  be  entered 
upon  appeal,  in  favor  of  the  principal,  in 
an  action  against  principal  and  agent  for  an 
injury  caused  by  the  alleged  negligence  of 
the  agent,  where  judgment  was  entered  in 
the  trial  court  in  favor  of  the  agent  and 
against  the  principal,  and  the  principal  alone 
appeals,  since  the  judgment  in  favor  of  the 
agent  precludes  a  recovery  against  the 
principal,  and  the  appellate  court  has  no 
power  to  revise  such  judgment.  Doremus 
v.  Root.  23  Wash.  710,  63  Pac.  572,    54:  649 

1176.  The  appellate  court  has  no  juris- 
diction to  make  a  finding  of  fact  from  evi- 
dence before  the  trial  court  ujjon  which  the 
latter  court  made  no  finding.  Dinola  v. 
Allison,  143  Cal.  106,  76  Pac.  976.       65:  419 

1177-1178.  An  agreed  state  of  facts, 
adopted    by    the    trial    court    as    the    basis 


124 


APPEAL  AND   ERROR,  VIII.  b. 


of  its  findings,  and  spread  upon  the  record, 
which  includes  all  facts  essential  to  the  de- 
termination of  the  controversy  between  the 
parties,  will  be  treated  as  a  special  verdict, 
upon  which  the  court  of  review  will  render 
the  same  judgment  that  the  trial  court 
ought  to  have  rendered.  National  Bank  of 
New  Jersey  v.  Berrall  (N.  J.  Err.  &  App.) 
70  N.  J.  L.  757,  58  Atl.  189,  66:  599 

1179.  Where  a  demurrer  to  the  evidence 
is  sustained,  the  appellate  court  proceeds  to 
render  the  judgment  which  should  have 
been  rendered  in  the  court  below.  Good  v. 
Galveston,  H.  &  S.  A.  R.  Co.  (Tex.)  11  S.  W. 
854,  4:  801 

IISO.  An  appeal  by  a  purchaser  of  a 
pledged  note  at  an  invalid  sale  of  it,  from 
a  decree  allowing  his  claim  against  the  es- 
tate of  an  indorser  only  for  the  amoimt 
which  he  paid  for  the  note,  and  denying 
his  right  to  the  face  value,  brings  up  the 
question  of  his  title  to  the  note,  and  au- 
thorizes the  court  to  reverse  the  decree,  not 
only  so  far  as  it  is  against  him,  but  also 
that  part  of  it  which  is  in  his  favor.  Moses 
V.   Grainger,    106   Tenn.    7,   58   S.   W.   1067, 

53:857 

1181.  Appeal  by  defendant  against  whom 
judgment  is  rendered  in  an  action  against 
two  for  an  injury  caused  by  the  alleged 
negligence  of  one  acting  as  agent  for  the 
other,  in  which  judgment  is  rendered  against 
one  and  in  favor  of  the  other,  will  take  up 
only  that  part  of  the  judgment  which  affects 
appellant,  and  the  appellate  court  will  have 
no  power  over  the  other  judgment  on  such 
appeal.  Doremus  v.  Root,  23  Wash.  710. 
63   Pac.   572,  54:  649 

1182.  A  dismissal  of  the  complaint  on  the 
merits  cannot  be  made  by  the  appellate  di- 
vision on  hearing  exceptions  upon  a  motion 
for  a  new  trial  under  N.  Y.  Code  Civ.  Proc. 
§  1000,  but  if  the  exceptions  are  well  taken 
the  motion  should  be  granted  and  the  case 
sent  back  for  a  new  trial:  if  they  are  not 
well  taken,  the  motion  should  be  denied 
and  judgment  entered  on  the  verdict  or  or- 
der of  nonsuit,  as  the  case  may  be.  Mat- 
thews V.  American  C.  Ins.  Co.  154  N.  Y. 
449,  48   N,    E.  751,  39:  433 

1183.  Instructions  to  receivers,  which 
seem  material,  if  not  necessary,  to  their 
work,  may  be  given  by  an  appellate  court 
in  reviewing  instructions  given  by  a  lower 
court.  Strauss  v.  Carolina  Interstate  Bid?. 
&   L.   Asso.    117   N.   C.   308,   23   S.    K.   450. 

30:  693 

1184.  A  court  may,  in  dismissing  an  ap- 
peal by  a  railroad  company  from  the  refusal 
of  an  injunction  to  prevent  the  tracks  of  a 
street  railroad  from  being  carried  over  its 
tracks  on  a  bridge,  require  the  bridge  to  be 
made  safe  for  such  use,  under  a  penalty  of 
continuing  the  preliminary  injunction. 
Pennsvlvania  R.  Co.  v.  Greensburg,  J.  &  P. 
Street  R.  Co.   176  Pa.  559,   35  Atl.   122, 

36:  839 

1185.  An  appellate  court  will  not  deter- 
mine in  what  precise  manner  an  upper  pro- 
prietor upon  a  stream  may  use  the  water, 
and  at  what  specific  place  it  must  be  re- 
turned to  the  stream  so  as  not  to  infringe 


the  rights  of  a  lower  proprietor,  where  no 
such  issue  was  made  in  the  lower  court,  and 
the  record  contains  no  evidence  from  which 
such  questions  could  be  determined.  Pat- 
ten Paper  Co.  v.  Kaukauna  Water-Power 
Co.  90  Wis.  370,  61  N.  W.  1121,        28:  443 

1186.  A  certificate  of  affirmance  of  a  chan- 
cellor's decree  dissolving  an  injunction  will 
not  be  withheld  for  the  purpose  of  giving 
complainant  an  opportunity  to  amend  his 
bill  so  as  to  give  it  equity  under  the  decree 
of  affirmance.  Mack  v.  De  Bardeleben  Coal 
&  I.  Co.  90  Ala.  396,  8  So.  150,  9:  650 
Changes  pending  appeal. 

1187.  Affirmance  of  a  judgment  on  a  pro- 
bate bond  for  the  full  amount  will  not  be 
prevented  Ly  the  fact  that  some  of  the  sure- 
ties have  paid  their  proportion  of  the  judg- 
ment, since  that  fact  occurring  after  judg- 
ment cannot  be  considered  by  the  appellate 
court.  Belden  v.  Hurlbut,  94  Wis.  562,  69 
N.  W.  357,  37:853 

1188.  A  judgment  against  an  insolvent  es- 
tate will  not  be  reversed  at  the  instance  of 
the  administratrix,  where  the  reversal  would 
result  in  no  benefit  to  her  or  the  estate  from 
the  fact  that  the  claim  has  been  allowed  by 
the  probate  court.  Weare  Commission  Co. 
V.  Druley,  156  111.  25,  41  N.  E.  48,       30:  465 

1189.  Reversal  of  an  erroneous  injunction 
decree  against  making  a  bust  of  a  deceased 
person  for  exhibition  at  a  public  fair  will 
not  be  refused  because  the  fair  has  closed, 
if  there  is  also  the  purpose  of  placing  the 
bust  permanently  in  a  proper  place  as  a 
memorial  to  the  deceased.  Schuvler  v. 
Curtis,  147  N.  Y.  434,  42  N.  E.  22,      "31 :  286 

1190.  A  plaintiff  whose  time  to  redeem 
from  a  mortgage  as  allowed  by  the  court 
has  expired  ]jending  an  appeal  by  defendant 
which  prevented  the  redemption  will  be  al- 
lowed by  the  aopellate  court  the  same  time 
after  entry  of  final  judgment  upon  the  trial. 
Schlawig  V.  De  Peyster,  83  Iowa,  323,  49  N. 
W.  843,  13:  785 
Withholding  mandate  of  possession. 

1191.  On  affirming  a  judgment  in  eject- 
ment against  a  railroad  company  which  has 
taken  land  without  consent  of  the  owner 
under  proceedings  which  lack  a  material 
requirement  of  the  law,  the  court  may  with- 
hold its  mandate  of  possession,  in  the  ab- 
sence of  any  bad  faith  on  the  part  of  the 
company,  to  allow  a  reasonable  time  for 
now  condemnation  proceedincrs.  Jackson- 
ville, T.  &  K.  W.  R.  Co.  V.  Adams,  28  Fla. 
031,   10   So.  465,  14:  533 

1102.  An  order  withholding  a  mandate  for 
possession  on  affirmance  of  a  judgment  of 
ejectment  against  a  railroad  company,  until 
the  decision  of  an  anpeal  in  new  condemna- 
tion proceedings  on  the  part  of  the  company, 
should  be  on  the  express  condition  that 
they  shall  not  affect  the  landowner's  right 
to  sue  tor  mesne  profits  for  the  use  or  re- 
tention of  the  land  by  the  company.  Id. 

b.  Rendering  Modified  Judgment. 

1193.  Any  clerical  mistake  in  the  amount 
for  which  a  judgment  is  entered  in  the 
Illinois  appellate  court  may  be  corrected  in 


APPEAL  AND  ERROR,  VIII.  c. 


125 


the  supreme  court,  where  there  is  sufficient 
in  the  record  and  on  the  face  of  the  judg- 
ment itself  to  show  the  correct  amount. 
Belford  v.  Woodward,  158  111.  122,  41  N.  E. 
1097,  29:  593 

1194.  Alimony,  counsel  fees,  and  suit 
money  may  be  allowed  by  an  appellate 
court  as  essential  to  justice,  and  not  as 
an  exercise  of  original  jurisdiction,  when  on 
appeal  in  a  suit  to  annul  a  marriage  the 
wife  is  destitute  while  the  husband  has 
means  wherewith  to  live  and  to  litigate. 
Prine    v.    Prine,   36    Fla.   676,    18    So.   781, 

34:  87 

1195.  When,  upon  appeal  from  a  judgment 
granting  the  petition  of  a  city  to  extend 
its  limits  to  embrace  outlying  territory,  the 
petition  as  allowed  is  foimd  to. have  in- 
cluded lands  not  proper  to  be  annexed,  the 
petition  cannot  be  amended  so  as  to  exclude 
such  land  and  the  judgment  affirmed  as 
to  the  remainder,  but  the  whole  case  must 
be  remanded  for  a  new  trial.  Vestal  v. 
Little  Rock.  54  Ark.  321,  329,  15  S.  W.  891. 
16  8.  W.  291,  11:  778 
Affirming  in  part  and  reversing  in  part. 

1196.  A  judgment  against  minor  defend- 
ants for  whom  no  guardian  ad  litem  was  ap- 
pointed as  required  by  Mo.  Rev.  Stat.  1879, 
§  3477,  will  be  reversed  as  to  them,  though 
it  may  be  affirmed  as  to  other  defendants. 
Lehew  v.  Brummell,  103  Mo.  546,  15  S.  W. 
765,  11:828 
Reduction  of  damages;  remittitur. 
Remittitur  on  New  Trial,  see  New  Trial,  V. 

e. 
Remittitur  on  Trial,  see  Trial,  V.  e. 

1197.  A  judgment  upon  a  verdict  for  a 
lump  sum  of  damages  and  interest  will  not 
be  modified  to  exclude  the  interest,  which 
is  found  to  be  erroneous,  but  a  reversal  is 
necessary.  King  v.  Southern  P.  Co.  41  Pac. 
786,  109"Cal.  96,  29:  755 

11  OS.  A  fee  allowed  to  the  master  by  the 
trial  court  will  not  be  reduced  by  the  appel- 
late court,  in  the  absence  of  evidence  show- 
ing it  to  be  clearlv  excessive.  Linn  v.  Cham- 
bersburg.  160  Pa'  511,  28  Atl.  842,     25:  217 

1199.  A  remission  of  the  excess  cannot  be 
allowed,  under  the  Wisconsin  practice,  in 
order  to  prevent  reversal  of  a  judgment 
which  is  excessive,  although  it  is  due  to 
a  mistake  in  reckoning.  Evans  v.  Foster,  80 
Wis.  .509,  50  N.  W.  410,  14:  117 

1200.  A  remittitur  of  the  excess  in  a 
judgment  may  be  ordered  under  Wash. 
Code  Proc.  §  1429,  as  an  alternative  to  re- 
versal for  a  new  trial.  King  County  v. 
Ferry.  5  Wash.  536.  32  Pac.  538,         19:  500 

1201.  A  remittitur  of  the  excess  of  a 
verdict  may  be  required  as  a  condition  of 
denving  a  reversal.  Sloane  v.  Southern  Cal. 
R.  Co.  Ill  Cal.  668,  44  Pac.  320,         32:  193 

1202.  Mere  excess  of  damages  not  due  to 
passion  or  prejudice  of  the  jury  should  be 
designated  by  the  appellate  court,  and  the 
plaintilT  allowed  the  option  to  remit  such 
excess  and  take  an  affirmance  for  the  resi- 
due, or  submit  to  a  new  trial.     Burdict  v. 

•Missouri  P.   R.   Co.   123  Mo.   221,  27   S.  W. 
453.  26:  384 

1203.  Interest    improperly    included    in    a 


judgment  may  be  remitted  on  appeal,  to 
prevent  reversal  for  that  reason.  Louis- 
ville &  N.  R.  Co.  v.  Wallace,  91  Tenn.  35, 
17  S.  W.  882,  14:  548 

1204.  An  appellate  court  may,  instead  of 
reversing  a  judgment  for  damages  in  an 
action  for  tort  in  which  the  verdict  is  so 
excessive  as  to  evince  passion,  prejudice,  or 
caprice,  require  the  prevailing  party  to  re- 
mit the  portion  which  it  deems  excessive 
upon  penalty  of  a  reversal  for  refusal  to 
comply,  and  affirm  the  judgment  for  the 
smaller  amount  in  case  the  plaintiff  as- 
sents to  it.  Alabama  G.  S.  R.  Co.  v.  Roberts. 
113  Tenn.  488,  82  S.  W.  314,  67:  495 

1205..  Where,  in  an  action  for  damages  for 
negligence,  the  judgment  for  plaintiff  is  ex- 
cessive, and  the  correct  amount  is  very 
small,  making  it  admissible  to  avoid  the 
expense  and  delay  of  a  new  trial,  the  Cali- 
fornia supreme  court  will  remand,  with 
directions  to  enter  an  order  requiring  plain- 
tiff to  file  with  the  clerk  a  waiver  of  any 
greater  sum  than  the  proper  amount  found, 
together  with  interest  thereon  and  costs, 
and  directing  that,  unless  such  waiver  be 
filed  within  a  time  to  be  specified,  a  new 
trial  shall  be  granted;  in  case  such  waiver 
is  filed  each  party  to  pay  one  half  the  costs 
of  such  appeal.  Tx)veland  v.  Gardner,  79 
Cal.  317,  21  Pac.  766,  4:  395 

Reduction  of  punishment. 

1206.  A  sentence  warranted  by  statute 
will  not  be  reduced  by  the  court  on  apneal 
because  of  apparent  undue  severitv.  where 
no  error  anpears  in  the  record.  Fanton  v. 
State,  50  Neb.  351,  61  N.  W.  953.       36:  158 

1207.  A  fine  of  $500  for  the  publication, 
without  provocation,  of  a  grossly  offensive 
libel,  will  not  be  reduted  on  appeal  as  ex- 
cessive. State  V.  Belvel,  89  Iowa,  4^5.  56 
N.  W.  545,  27 :  846 

1208.  The  appellate  court  may  correct  a 
judgment  which  erroneously  imposes  im- 
prisonment in  addition  to  a  fine  for  a  stat- 
utory misdemeanor,  by  striking  out  the 
erroneous  portion  and  affirming  the  judg- 
ment as  modified.  Pressly  v.  State  (Tenn.) 
86  S.  W.  378,  69:  291 

c.  Remanding;  Granting  New  Trial. 

See  also  supra,  1182. 

1209.  An  appellate  court  may  grant  a  new 
trial  when  there  is  no  evidence  to  support 
the  verdict.  State  v.  Shaw,  64  S.  C.  566. 
43  S.  E.  14,  60:  801 

1210.  Judsrment  for  new  trial,  and  not  of 
reversal,  will  be  rendered  on  appeal  where 
error  is  found  in  the  proceeding  anterior  to 
and  including  the  verdict.  Bernhardt  v. 
Brown.  118  N.  C.  700.  24  S.  E.  527,  715,  119 
N.  C.  506,  26  S.  E.  162,  36:  402 

1211.  On  affirming  a  judgment  against 
plaintiff  for  fatal  variance  between  the 
pleading  and  proof,  although  a  good  cause  of 
action  is  proved,  the  court  may  remand  the 
case  for  new  trial.  Lucke  v.  Clothing  Cut- 
ters &  T.  Assemblv,  No.  7507,  K.  of  L.  77 
Md.  396,  26  Atl,  505,  19:  408 

1212.  If  a  judgment  in  an  equity  case  or 


136 


APPEAL  AND  ERROR,  VIII.  d. 


an  action  at  law  tried  by  the  court  be  re- 
versed on  appeal  to  the  supreme  court,  and 
there  is  an  unsolved  question  of  fact  that 
must  be  determined  before  final  judgment 
can  be  rendered,  and  there  are  conflicting 
reasonable  inferences  as  to  how  such  issue 
should  be  solved,  rendering  it  doubtful 
which  way  is  the  right  of  the  matter,  lest 
injustice  may  be  done  by  the  exercise  of 
jurisdiction  to  decide  the  issue  here  as  an 
original  matter,  the  court  will  remand  the 
cause  to  the  trial  court  to  determine  such 
issue  and  then  to  apply  the  law  to  the 
case  as  directed.  Bostwick  v.  Mutual  L. 
Ins.  Co.  116  Wis.  392,  89  N.  W.  538.  92  K 
W.  246,  67 :  705 

1213.  On  an  appeal  which  could  have  been 
heard  upon  questions  of  law  alone,  under 
the  Constitution  in  force  when  the  appeal 
was  taken,  but  which  could  have  been  heard 
upon  both  the  law  ana  the  facts  if  taken 
after  the  adoption  of  La.  Const.  1898,  which 
went  into  effect  while  the  appeal  was  pend- 
ing, but  in  which  the  evidence  has  not  been 
brought  up  and  no  statement  of  facts  can 
be  agreed  upon,  the  case  must  be  remanded 
in  order  that,  on  a  second  trial,  the  testi- 
mony may  be  reduced  to  writing;  and  on  a 
second  appeal  tlie  court  can  discharge  its 
constitutional  duty  of  adjudging  the  facts 
as  well  as  the  law  of  the  case.  Cassard  v. 
Tracy,  52  La.  Ann.  835.  27  So.  368.     49:  272 

1214.  A^Tiere  a  general  verdict  has  been 
rendered  in  favor  of  plaintiff,  upon  all  the 
counts  in  a  eonmlaint  seekinar  to  recover 
damages  for  slander,  and  the  aunellate  court 
holds  some  of  the  counts  insufficient,  with- 
out any  means  of  determining  upon  wliich 
counts  the  damages  were  in  fact  assessed. 
it  will  not  arrest  the  judgment,  but  will 
award  a  venire  de  novo.  Posnett  v.  ^farble. 
62  Vt.  481.  20  Atl.  813.  11:  162 

1215.  A  new  trial  solely  for  the  ])urpose 
of  inquiring  as  to  the  damages  may  be 
erranted  on  a  reversal  for  errors  affecting 
damages  onlv.  Pickett  v.  Wilmington  &  W. 
R.  Co.  117  X'.  C.  616.  23  S.  E.  264,         30:  2.57 

1216.  A  new  trial  in  a  foreclosure  action 
will  not  be  granted  under  X.  Dak.  Rev. 
Codes,  §  5630,  providing  that  the  supreme 
court,  if  it  deem  such  a  course  necessary  to 
the  accomplishment  of  justice,  may  order  a 
new  trial  of  an  action,  where,  although  the 
defendant  introduced  no  evidence  on  the 
trial  because  the  court  held  at  the  close  of 
plaintiff's  testimony  that  the  notice  of  sale 
was  insufficient  and  the  foreclosure  void, 
there  is  not  even  the  suggestion  of  the  pos- 
sibility of  establishing  facts  which  would 
alter  the  conclusions  already  reached. 
Orandin  v.  Emmons.  10  X.  D.  223,  86  X.  W. 
723,  54:  610 

1217.  Where  the  Xew  York  court  of  ap- 
peals cannot  determine  what  proportion  of 
insurance  premiums  paid  by  a  fraudulent 
grantee  whose  conveyance  is  set  aside  at 
the  suit  of  creditoi's  of  the  grantor  should 
be  borne  by  the  receiver  in  the  action,  it 
will  make  no  allowance,  but  will  leave  it  to 
the  discretion  of  the  supreme  court  to  order 
a  further  reference,  if  that  court  considers 


it  necessary.     Loos  v.  Wilkinson,  113  N.  Y. 
485,  21  X.  E.  392.  4.  35a 

Directions  to  trial  court. 
See  also  supra,  1205. 

1218.  On  reversing  an  interlocutorv  order 
or  decree  from  which  an  appeal  has  been 
taken,  the  Federal  circuit  court  of  appeals,, 
in  its  discretion,  may,  and  should  when 
equity  so  requires,  make  full  direction  as 
to  the  manner  in  which  the  cause  shall  be 
disposed  of  below.  Richmond  v.  Atwood.  5 
U.  S.  App.  151,  2  C.  C.  A.  596.  52  Fed.   10, 

17:  615 

1219.  The  appellate  court  will  not.  upon 
remanding  a  case  after  reversing  a  judgment 
because  of  the  error  of  the  trial  judge  in 
holding  that  it  Avas  barred  by  a  former 
judgment,  direct  judgment  to'  be  entered 
upon  a  verdict  rendered  at  the  first  trial 
of  the  action,  where  it  was  set  aside  and 
a  new  trial  granted  because  the  jury  did 
not  follow  the  instructions  of  the  court  as 
to  the  effect  of  such  judgment,  a'lthough  a 
contrary  verdict  was  rendered  at  the  second 
trial  by  the  direction  of  the  court,  which 
as  the  appellate  court  holds,  was  an  error. 
Hoover  v.  King.  43  Or.  281.  72  Pac.  880, 

65:  790- 
d.  Costs. 

Staying  Further  Proceedings  Till  Payment 

of.  see  Constitutional  Law.  1105.' 
Out  of  Fund  in  Suit,  see  Costs  and  Fees,  31. 
For  Editorial  Xotes,  see  infra.  XT.  §  16. 

1220.  Under  statutes  providing  that  in 
will  contests  the  court  may  award  costs  to- 
either  party  in  its  di.scretion.  and  upon  ap- 
peal the  costs  shall  be  paid  by  appellant  or 
respondent  "and  .shall  be  directed  by  the- 
court,"  the  costs  allowed  .should  lie  limited 
to  the  actual  taxable  costs.  Cheever  v. 
Xorth.  106  >Juh.  3;)(t.  64  X.  W.  455.     37:  561 

1221.  Where  a  decree  against  plaintiff  in 
a  suit  to  quiet  title  is  reversed  upon  ap- 
peal because  of  want  of  jurisdiction  in  the- 
lower  court,  the  costs  in  the  appellate  court 
will  be  awarded  aeainst  him.  Freer  v. 
Davis.  52  W.  Va.  1.  43  S.  E.  164.         .59:  556- 

1222.  On  a  reversal  in  the  supreme  court 
of  a  judgment  of  the  district  court,  the 
plaintiff  in  certiorari  is  not  entitled  to  co.sts. 
Seabury  v.  Crowell  (X.  J.  Err.  &  App.)  51 
X.  J.  L.  103.  52  X.  J.  L.  413.  21  Atl.  9.52. 

11:136- 

1223.  The  costs  of  an  appeal  must  be 
borne  by  the  appellant,  where  he  brought 
the  whole  case  to  the  supreme  court  for 
review,  and  was  unsupcessful  as  to  every- 
thing except  a  small  item  of  interest,  al- 
though he  obtained  a  decision  for  reversal 
on  accoiuit  of  that  item  unless  a  remittitur 
should  be  entered  therefor.  Illinois  C.  R. 
Co.  V.  Southern  Seating  &  C.  Co.  104  Tenn. 
368.  58  S.  W.  303.  50:  729 

1224.  Appellees  in  an  appeal  from  a  de- 
cree fixing  the  amount  due  on  a  loan  as- 
sociation contract,  from  which  they  do  not 
appeal,  should  not  be  charged  with  the  cost* 
merely  because  the  trial  court  did  not  * 
adopt  the  strictly  correct  rule  of  settle- 
ment,   where    one    was    adopted    which    for 


APPEAL   AND   ERROR,  VIII.  e. 


127 


practical  results  is  hardly  distinguishable 
from  the  correct  one,  and  is  quite  equitable. 
Mcllwaine  v.  Ellington,  49  C.  C.  A.  446,  111 
Fed.  578,  55:  933 

1225.  Costs  will  not  be  allowed  to  either 
party  upon  reversal  of  a  decision  in  favor  of 
a  quasi  officer  of  the  law,  where  the  proposi- 
tion sustaining  the  reversal  is  brought  for- 
ward bv  the  court  of  its  own  motion.  Re 
Dickson,  49  C.  C.  A.  574,  111  Fed.  726, 

55:  349 

1226.  Interest  on  the  amount  of  the  judg- 
ment, although  directed  by  statute  to  be 
added  to  the  costs,  is  no  part  of  the  costs 
so  as  to  be  included  in  an  affirmance  by  the 
appellate  court  of  the  allowance  by  the  trial 
court  of  costs,  if  the  appellate  court  desig- 
nates the  amount  of  interest  to  b^  allowed. 
John  V.  Farwell  Co.  v.  .Tosephson.*!)6  Wis. 
10.  70  X.  W.  289.  71  X.  W.   109.         37:  138 

1227.  The  abatement  of  a  divorce  pro- 
ceeding by  the  death  of  appellant  pending 
an  appeal  terminates  the  power  of  the  court 
over  costs,  under  a  statute  making  costs 
dependent  upon  a  judicial  determination  of 
the  action.  Begbie  v.  Begbie.  128  Cal.  1.54, 
60  Pac.  667.  49:  141 
Of  brief. 

1228.  The  expense  of  printing  a  large 
amount  of  unnecessary  matter  in  a  brief 
without  justification  will  not  be  allowed  in 
taxing  costs  on  appeal.  Jackson  v.  Wiscon- 
sin  feleph.  Co.  88  Wis.  243,  60  X.  W.  430, 

26:  101 

1229.  The  cost  of  l;)ringing  up  superfluous 
matter  will  be  taxed  against  the  party  at 
whose  instance  it  was  added  to  the  brief 
of  evidence.  Pullman's  Palace  Car  Co.  v. 
Martin,  95  Ga.  314,  22  S.  E.  700,        29:  498 

e.  Eflfect  of  Decision. 

Effect  of  Affirmance  on  Appeal,  on  Motion 

for  Xew  Trial,  see  Xew  Trial.  63. 
For  Editorial  Xotes,  see  infra,  XI.  §   15. 

1230.  The  affirmance,  by  the  Illinois  ap- 
pellate court,  of  a  judgment  rendered  on  a 
verdict,  is  a  decision  that  the  verdict  was 
authorized  bv  the  evidence.  Pennsvlvania 
Co.  V.  Versteij,  140  111.  637,  30  N.  E.  540. 

15:  798 

1231.  If  a  decree  in  chancery  be  partly  in 
favor  of  a  party  and  partly  adverse  to  him, 
and  he  appeal  from  that  portion  which  is 
adverse,  a  judgment  of  affirmance  does  not 
affirm  that  portion  of  the  decree  which  was 
in  his  favor.  Pennington  v.  Todd  fX.  J. 
Err.  &•  App.)  47  X.  .T.  Eq.  569,  21  Atl.  297. 

11:  589 
Conclusiveness  of,  generally. 

12.32.  An  order  of  affirmance  by  the  ap- 
pellate court  as  embodied  in  its  remittitur 
will  not  prevent  the  court  to  which  it  is 
directed  from  opening  the  judgment  for  the 
hearing  of  a  new  party  and  the  determina- 
tion of  a  new  claim.  Re  Rochester.  136  X. 
V.  83.  32  X.  E.  702.  19:  161 

1233.  The  jurisdiction  of  a  court  is  estab- 
lished as  tpf)  judirata  althoush  not  dis- 
cussed or  expressly  decided,  where  an  ap- 
pellate court  treats  its  judgments  and  de- 
crees as  those  of  a  lawful  court  in  the  exer- 


cise   of    its    lawful    jurisdiction.      WHiite   v. 
Hinton,  3  Wyo.  753,  30  Pac.  953,  17:  66 

1234.  Where  a  judgment  for  plaintiff  in 
an  action  for  personal  injuries,  removed 
from  a  state  to  a  Federal  court,  is  reversed 
and  the  cause  remanded  for  new  trial  on 
the  ground  that  the  injury  was  caused  by 
the  act  of  a  fellow  servant,  such  ruling  is 
not  the  law  of  the  case  if  plaintiff  discon- 
tinues the  action  and  begins  a  new  one  in  a 
court  of  another  comity  of  the  state,  but 
the  state  courts  may  apply  their  law  with 
reference  to  that  question.  Illinois  C.  R. 
Co.   v.  Benz,   108  Tenn.   670,   69  S.  W.   317, 

58:  690 
On  later  appeal. 
For  Editorial  Xotes,  see  infra,  XI.  §  15. 

1235.  A  decision  on  a  former  appeal 
is  the  law  of  the  case  so  far  as  it  is  appli- 
cable to  the  facts  establi.shed  on  the 
second  trial.  Case  v.  Hoffman.  100  Wis. 
314.  72  X.  W.  390.  74  X.  W.  220,  75  X.  W. 
945.  44:  728 

1236.  A  decision  by  the  Kansas  City 
court  of  appeals  is  not  binding  on  the  Mis- 
souri supreme  court  upon  subsequent  ap- 
peal to  it  after  retrial  in  the  circuit  court. 
Hennessv  v.  Bavarian  Brew.  Co.  145  Mo. 
104.  46  S.  W.  966.  41 :  385 

1237.  An  appellate  court  on  a  second  ap- 
peal may  re-examine  and  reverse  its  nilings 
on  the  first  appeal,  if  the  case  was  then  re- 
manded generallv  for  a  new  trial.  Hastings 
V.  Foxworthv,  45  Neb.  676,  63  X.  W.  955, 

.34:  321 

1238.  A  judgment  in  plaintiff's  favor  on 
his  appeal  from  an  involuntary  nonsuit 
granted  at  the  close  of  his  evidence  is  not 
conclusive  on  an  appeal  by  defendant  from 
a  judgment  in  plaintiff's  favor  at  the  close 
of  all  the  evidence,  which  differs  in  many 
essential  particulars  from  that  introduced  at 
the  first  trial.  Fuchs  v.  St.  Louis.  167  Mo. 
620.  67  S.  W.  610,  .57:  136 

1239.  A  decision  on  appeal  that  the  pos- 
session of  a  note  by  the  maker  raises  a 
presumption  of  payment  does  not  preclude 
the  raising  upon  a  subsequent  appeal  of  the 
question  as  to  the  legal  effect  of  the  in- 
dorsement and  transfer  of  the  note  by  the 
oavee.  Vann  v.  Edwards.  135  X'.  C.  661.  47 
S.  E.  784,  67:461 
Restitution. 

On  Certiorari,  see  Certiorari,  28. 

1240.  An  order  of  restitution  is  not  nec- 
ess.nry  to  enable  a  defendant  who  has  ap- 
pealed from  a  judgment  of  foreclosure  to 
assert  his  right  to  the  property  upon  re- 
versal of  the  judgment.  Di  Xola  v.  Allison. 
143  Cal.  106,  76  Pac.  976.  65:  419 

1241.  A  statute  authorizing  an  appellate 
court,  upon  reversal  of  a  judgment  or  fore- 
closure, to  make  restitution  so  far  as  such 
restitution  is  consistent  with  the  protection 
of  a  purchaser  at  a  sale  under  the  judgment, 
does  not  operate  to  perfect  the  title  of  a 
stranger  who  purchases  from  the  plaintiff  in 
the  action  after  an  appeal  is  taken,  since 
its  operation  must  be  limited  to  parties 
over  whom  the  court  has  jurisdiction.        Id. 

1242.  The  title  secured  by  a  purchase,  by 
a   str.qnger  after  an  appeal  has  been  taken 


128 


APPEAL  AND  ERROR,  VIII.  f,  IX. 


from  the  judgment,  from  one  who  has  pur- 
chased mortgaged  real  estate  at  his  own 
foreclosure  sale,  is  subject  to  be  defeated  by 
a  reversal  of  the  judgment,  notwithstand- 
ing the  execution  of  the  judgment  was  not 
superseded  pending  the  appeal.  Id. 

124.3.  A  writ  of  possession  which  has  been 
executed  will  not  be  quashed  unless  a  writ 
of  restitution  should  be  granted,  as  the 
quashal  would  otherwise  do  no  good.  Bowar 
V.  Chicago  W.  D.  R.  Co.  136  111.  101,  26  N. 
E.  702,  12:  81 

Liability  for  acts  done  in  accordance  with. 
For  Editorial  Notes,  see  infra,  XI.  §  15. 

1244.  Acts  done  pursuant  to  a  subsisting 
judgment  which  is  afterwards  reversed  can- 
not be  made  the  basis  of  an  action  for  dam- 
ages for  tort.  Bridges  v.  McAllister,  106 
Ky.  701,  51  S.  W.  603,  45:  800 

1245.  An  action  sounding  in  tort  cannot 
be  maintained  to  recover  damages  for  in- 
juries resulting  to  lands  by  reason  of  the 
casting  of  surface  water  thereon  through  a 
drain  which  was  constructed  in  good  faith 
in  accordance  with  a  judgment  of  a  court 
having  jurisdiction  of  the  parties  and  sub- 
ject-matter, although  such  judgment  has 
teen  subsequently  reversed  on  appeal  for 
error,  no  stay  of  proceedings  pending  the 
appeal  having  been  obtained.  Thompson  v. 
Reasoner,  122  Ind.  454,  24  N.  E.  223. 

7:  495 

f.  Correction. 

Due  Process  as  to,  see  Constitutional  Law, 
813. 

1246.  The  court  has  a  right  to  file  a  new 
and  fuller  opinion  containing  every  reason 
for  the  decision  that  was  included  in  the 
first  opinion  and  an  additional  reason  also, 
although  the  cause  has  been  remanded  to  a 
lower  covirt.  Adams  v.  Yazoo  &  M.  V.  R. 
Co.  77  Miss.  194,  24  Ro.  200,  317.  28  So.  956. 

60:  33 

1247.  An  appellate  court,  having  reversed 
a  judgment  in  a  capital  case  on  a  transcript 
of  the  record  of  the  court  below,  which  was 
an  entire  misrepresentation  of  the  real 
record,  does  not  lose  its  jurisdiction  by  is- 
suing a  remittitur  to  the  court  below,  but 
may  vacate  its  entry  of  judgment  and  re- 
store the  cause  to  its  docket ;  and  the  case 
is  not  altered  by  the  fact  that  the  misrepre- 
sentation was  unintentional.  Lovett  v. 
State.  29  Fla.  384,  11  So.  176,  16:  313 


TX.  Rehearing. 

Filing  Supplemental  Record  on  Petition  for, 

see  supra.   iri7. 
Power    of    TiPTislature    to    Authorize,    see 

Courts,  245. 
See  also  supra,  69,  70. 

1248.  A  rehearing  cannot  he  considered  if 
no  brief  is  filed  in  its  sunnort.  Parker  v. 
State  ex  rel.  Powell.  133  Ind.  178,  32  N.  F, 
836.  18:  .567 

1249.  The  right  to  file  a  petition  to  rehear 


a  case  in  the  supreme  court,  given  by  N.  C. 
Code.  §  966,  does  not  extend  to  the  right  to 
require  the  court  to  consider  the  rehearing 
contrary  to  its  rules.  Herndon  v.  Imperial 
F.  Ins.  Co.  Ill  K  C.  384,  16  S.  E.  465, 

18:  547 

1250.  On  A'acating  a  judgment  which  was 
void  because  the  qualified  members  of  the 
court  were  equally  divided,  the  court,  in- 
stead of  entering  judgment,  may  order  a  re- 
argument,  if  it  sees  fit  to  do  so.  Case  v. 
Hoffman,  100  Wis.  314,  72  N.  W.  390,  74  N. 
W.  220,  75  ]Sr.  W.  945,  44:  728 

1251.  A  rehearing  will  not  be  granted 
where  the  petition  for  it  suggests  nothing 
which  gives  reason  to  apprehend  error  in  the 
judgment.  .Jacksonville.  T.  &  K.  W.  R.  Co. 
V.  Peninsular  Land,  T.  &  Mfg.  Co.  27  Fla. 
1,  157,  2  So.  661,  9  So.  689,  17:  .33 

1252.  An  order  for  the  payment  of  a  divi- 
dend to  creditors,  made  during  the  course  of 
proceedings  for  the  winding  up  of  an  in- 
solvent insurance  company,  to  which  no  ob- 
jection was  taken  until  a  rehearing  of  an 
appeal  from  the  final  decree  in  the  case  had 
been  granted,  and  upon  which  the  receiver 
has  acted  and  had  his  report  confirmed,  will 
not  be  disturbed.  Remiblic  L.  Ins.  Co.  v. 
Swigert,  135  111.  150,  25  K  E.  680,  12:  328 
Who  mav  petition  for. 

1253.  One  to  whom  the  decision  is  not  ad- 
verse cannot  petition  for  a  rehearing. 
Parker  v.  State  ex  rel.  Powell,  133  Ind.  178. 
32  X.  E.  836,  18:  567 

1254.  The  attornev  general  is  only  an 
amicvs  curire  when  invited  by  the  court  to 
appear  in  an  action  involving  an  important 
constitutional  question  which  is  brought  in 
the  name  of  the  state  on  the  relation  of  a 
person  who  seeks  thereby  to  enforce  a 
private  right,  and  he  is  not  a  party  or  inter- 
vener who  is  entitled  as  such  to  file  a  peti- 
tion for  a  rehearing.  Id. 
Grounds  for. 

1255.  The  surprise  of  the  unsuccessful 
counsel  at  a  decision  does  not  constitv.te  a 
ground  for  reopening  the  case.  People  ex 
rel.  T/Abbe  v.  Lake  County  Dist.  Ct.  26 
Colo.  386,  58  Pac.  604,  46:  850 

1256.  A  rehearing  will  not  be  granted  in 
order  to  consider  points  not  made  in  the 
argument,  upon  which  the  case  was  original- 
Iv  submitted.  Kellogg  v.  Cochran,  87  Cal. 
192,  25  Pac.  677,  12:  104 

1257.  A  rehearincr  will  be  granted  for  the 
nurpopc  of  considering  new  matter  stated  in 
the  petition  therefor,  which  may  materially 
affect  the  merits  of  the  main  controversy, 
and  was  pot  considered  at  the  rendition  of 
the  original  opinion.  Kirbv  v.  Western  U. 
Teleg.  Co.  4  S.  D.  105.  439*  7  S.  D.  623,  55 
X.  W.  759.  57  N.  W.  199,  65  X.  W.  37, 

30:  612 
r?58.  The  supreme  court  of  Indiana  will 
not  jrrant  a  motion  for  rehearing  to  appellee 
on  the  ground  that  the  question  decided  was 
not  properly  before  it,  where  the  defect,  if 
any,  was  a  technical  one  in  the  form  of  the 
motion  for  new  trial  in  the  lower  court,  and 
*^he  appellee,  without  questioninsr  appel- 
lant's statemcTit,  which  showed  the  ques- 
tion to  have  been  properly  raised,  discussed 


APPEAL  AND  ERROR.  X. 


129 


the  question  on  the  merits,  while  a  rule  of 
the  court  provides  that  any  statement  of 
fact  by  counsel,  unquestioned  by  opposing 
counsel,  will  be  deemed  bv  the  court  to  be 
accurate.  Ohio  &  M.  R/Co.  v.  Stein,  133 
Ind.  243,  31  N.  E.  180,  19:  733 

1259.  A  rehearing  may  be  granted,  even 
when  the  result  must  be  the  same  as  an- 
nounced in  the  original  opinion,  when  (1) 
the  concurrence  of  one  of  two  judges  consti- 
tuting the  court  delivering  the  judgment  on 
appeal  is  limited  to  the  result;  and  thereby 
the  law  of  the  case  is  not  made;  and  (2)  the 
original  opinion  fails  to  consider  a  point 
raised  upon  the  appeal,  which,  if  tenable, 
might  be  fatal  to  the  cause  of  action  set 
forth  in  the  complaint;  and  (3)  the  former 
opinion  announces  certain  rules,  of  law 
which,  in  the  judgment  of  the  court  as  con- 
stituted when  the  motion  for  rehearing  is 
considered,  require  modification  to  prevent 
misapplication  of  same  upon  a  new  trial  of 
the  cause.  Fenstermaker  v.  Tribune  Pub. 
Co.  12  Utah,  439,  13  Utah,  532,  43  Pac.  112, 

35:  611 
What  will  be  considered. 

1260.  No  ground  or  position  not  taken  on 
the  hearing  can  be  assumed  in  a  petition  for 
rehearing.  Jacksonville,  T.  &  K.  W.  R.  Co. 
v.  Peninsular  Land,  T.  &  Mfg.  Co.  27  Fla.  1, 
157,  2  So.  661,  9  So.  689,  17:  33 

1261.  A  motion  for  a  new  trial  for  newly 
discovered  evidence  cannot  be  considered  on 
a  petition  to  rehear  on  appeal,  even  if  due 
diligence  has  been  shown.  Fleming  v. 
Borden,  126  N.  C.  450,  36  §.  E.  17,  127  K  C. 
214,  37   S.  E.  219,  53:  316 

1262.  That  the  death  of  deceased  was  not 
produced  solely  by  the  act  of  accused  can- 
not be  raised  as  a  defense  to  a  prosecution 
for  murder  for  the  first  time  on  a  petition 
for  rehearing  in  tlio  appellate  court  under 
the  Texas  Code  of  Criminal  Procedure. 
White  v.  State,  44  Tex.  Crim.  Rep.  346,  72 
S.  W.  173,  63:  660 

1263.  In  a  criminal  case,  if  the  accused 
has  actually  overlooked  an  error  in  the 
original  submission  which  might  have  mis- 
led the  jury  in  reaching  their  verdict,  the 
court  will  correct  it  on  rehearing.  State 
v.  Phillips,  119  Iowa,  652,  94  N.  W.  229, 

67 :  292 
In  banc. 

1264.  A  constitutional  provision  for  the 
transfer  of  criminal  cases  from  a  division 
of  the  appellate  court  to  the  court  in  banc 
on  motion  of  the  losing  party  when  a  judge 
dissents  from  the  opinion  applies  in  favor 
of  the  state ;  and  the  rule  that  in  such  cases 
the  state  is  not  entitled  to  a  review  of  a 
judgment  of  the  trial  court,  except  in  spe- 
cial cases  allowed  by  statute,  is  not  appli- 
cable. State  V.  Hamey,  168  Mo.  167,  65  S. 
W.  946,  57:  846 


X.  Liability  on  Appeal  Bond. 
Matters  as  to  Security  Generally,  see  supra, 

in.  g. 

Presumption  as  to,  see  supra,  445. 
L.R.A.  Dig.— 9. 


Protection  of  Appeal  Bond  against  Impair- 
ing Obligation  of  Contract,  see  Constitu- 
tional Law,   1120-1122. 

Corporation  as  Surety,  see  Corporations,  137, 
138. 

Jurisdiction  of  Action  on,  see  Courts,  438, 
439. 

On  Appeal  from  Justice's  Judgment,  see 
Justice  of  the  Peace,  30. 

For  Editorial  Notes,  see  infra,  XI.  §  8. 

1265.  An  appeal  bond  executed  in  accord- 
ance with  the  law  in  force  at  the  time  does 
not  become  inoperative  by  a  transfer  of  the 
appellate  jurisdiction  to  a  different  court. 
Mexican  Nat.  R.  Co.  v.  Mussette,  86  Tex. 
708,  26  S.  W.  1075,  24:  642 

1266.  Failure  of  the  court  to  fix  the 
amount  of  an  undertaking  on  appeal  does 
not  prevent  its  enforcement,  if  the  respond- 
ent has  treated  the  undertaking  as  sufficient 
and  thereby  waived  the  defect.  Braith- 
waite  V.  Jordan,  5  N.  D.  196,  65  N.  W.  701, 

31 :  238 

1267.  A  good  common-law  obligation  sup- 
ported by  a  sufficient  consideration  is  made 
by  an  undertaking  to  secure  a  stay  of  pro- 
ceedings on  appeal  in  an  admiralty  case, 
even  if  a  mere  cost  bond  might  have  been 
sufficient,  where  the  respondent  treats  the 
undertaking  as  entitling  the  appellant  to  a 
stay.  Id. 

1268.  A  bond  reciting  judgment  for  de- 
livery of  a  vessel  to  the  claimant  in  an  ad- 
miralty case,  when  given  to  secure  a  stay 
of  proceedings,  is  in  the  nature  of  a  stipu- 
lation for  value,  which  is  valid  as  a  volun- 
tary bond  when  claimant  refrains  from  dis- 
turbing the  appellants  in  possession  of  the 
vessel  pending  ati  appeal.  Id. 
Amount  of  liability. 

1269.  One  becoming  surety  on  a  super- 
sedeas bond  which  is  substituted  for  a  prior 
similar  bond  assumes,  under  the  Arkansas 
statutes,  liability  for  all  damages  accruing 
during  the  pendency  of  the  appeal,  and  not 
for  those  only  which  accrue  after  his  bond 
is  filed.  Wilson  v.  King,  59  Ark.  32.  26  S. 
W.  18,  23:  802 
What  will  release  sureties. 

See  also  Principal  and  Surety,  49. 

1270.  The  sureties  on  an  appeal  bond 
conditioned  for  the  prosecution  of  the  appeal 
to  a  court  of  appeals,  and  the  performance 
of  the  judgment  of  that  court,  or  of  the  su- 
preme court  of  the  state  in  the  event  of  an 
appeal  thereto,  are  discharged  where,  by  a 
change  in  the  statute  governing  appeals,  no 
judgment  is  rendered  by  the  court  of  ap- 
peals, or  any  appeal  taken  from  that  court 
to  the  supreme  court,  but  the  case  is  taken 
by  a  legislative  transfer  from  the  court  of 
appeals  to  the  supreme  court.  Schuster  v. 
Weiss,  114  Mo.  158,  21  S.  W.  438,         19:  182 

1271.  It  is  no  defense  to  the  sureties  in 
an  action  on  an  appeal  bond  that  the  plain- 
tiff has  unlawfully  taken  possession  of 
more  than  enough  of  the  property  of  the 
principal  in  the  bond,  who  is  deceased,  and 
that  there  has  been  no  administration  on 
the  estate.  Id. 

1272.  The  liability  of  sureties  on  an  ap- 


180 


APPEAL   AND  ERROR,  XI.  (Ed.  Notes.) 


peal  bond  is  wholly  discharged  when  the 
judgment  is  paid  by  sureties  upon  a  bond 
for  fjirther  appeal  to  a  higher  court  after 
affirmance  by  it,  and  the  latter  cannot,  by 
taking  an  assignment  of  the  judgment, 
raise  any  liability  on  the  part  of  the  former 
whicli  will  give  them  an  interest  in  the 
judgment  debtor's  property,  and  make  them 
necessary  parties  to  foreclose  proceedings 
against  him.  Wronkow  v.  Oakley,  133  N. 
y.  505,  31  N.  E.  521,  16:  209 


XI.  Editorial  Notes. 
a.  Substitutes  for  appeal  or  writ  of  error. 

§  I.  Generally. 

Exercise  of  superintending  control  in  place 
of    appeal.     51:109. 

Exceptions  to  rule  that  certiorari  will  not 
lie  where  there  is  an  ap- 
peal.    50:787. 

Lack  of  remedy  by  appeal  as  ground  for  in- 
junction against  judg- 
ment.    30:560. 

Prohibition  not  issued  to  review  or  correct 
errors  of  law  or  fact.  3: 
57. 

Writ  of  prohibition  not  to  serve  purpose  of 
writ  of  error.     9:59. 

b.  Appellate  jurisdiction. 

§  2.  Generally. 

What   adjudication  of  state   courts  can   be 
brought  up  for  review  in 
the  Supreme  Court  of  the 
United  States  by  writ  of 
error  to  those  courts.    62: 
513. 
Nature  of  decisions  reviewable.    62:515. 
Finality  of  determination.     62:515. 
Adjudication   must  be  that  of  the 
highest    state    court.     62: 
518. 
When  adjudication  is  rendered  in  a 
suit.     62:  619. 
The   nature   of   the  controversy   essen- 
tial   to    this    jurisdiction. 
62:  519. 
•     In  general.     62:519. 

Validity  of  Federal  law.     62:521- 
Questions    respecting    Federal    au- 
thority.    62:521. 
Repugnancy    of    state    statutes    or 
authority  to    Federal  law. 
62:525. 
State  authority.     62:525. 
State   statutes  generally.     62: 

526. 
State      legislation      impairing 
contract    obligations.      62: 
527. 
Eights     and     immunities     claimed 
under    Federal     law.     62: 
529. 
In  general.     62:529. 
Full  faith  and  credit.     62:  529. 
Former  jeopardy.     62:530. 
Commerce.     62 :  530. 


Due  process  of  law.     62:530. 
Equal  protection  of  the  lavrSw 

62:531. 
Treaty  rights.     62:532. 
Land  title.     62:532. 
Title  to  office.     62:534. 
Mining   claims.     62:534. 
Bankruptcy.     62:535. 
National  banks.     62:536.    . 
Citizenship.     62:537. 
Indians.     62 :  537. 
Contracts.     62:537. 
Vested    water    rights.     62:537. 
T^-egal  tender.     62:537. 
Exemption  from  taxation.    62: 

537. 
Customs  and  internal  revenue. 

62:538. 
Removal  of  causes.     62:538. 
Navigation.     62:538. 
Civil  rights.     62:538. 
Patents    for     inventions.     62: 

538. 
Slavery.     62 : 539. 
Limitation  of  actions.     62:539. 
Miscellaneous.     62:539. 
Questions  of   local   or  general   law 

are    not    Federal.     02:540. 
In  general.     62:  540. 
Practice    and    procedure.     62: 

541. 
Validity    of    state    legislation 

under   state    Constitution. 

62:542. 
Statutory       construction.     62: 

542. 
Questions  of  fact.     62:543. 
How  and  when  questions  must  be  raised  and 

decided  in  a  state  court  in 

order  to  make  a  case  for 

a  writ   of  error   from  the 

Supreme     Court     of     the 

United   States.     63:33. 
Presentation  of  the  Federal  question  to 

the   state  court.     63:33. 
How  raised.     63:33. 

The   general    rules.     63:33. 
Illustrative  cases.     63:  395. 
WHien  presented  in  time.     63:39. 
The  decision   of  the    Federal    question 

by  the  state  court.    63:42. 
Necessity  of  decision.     63:42. 
Essential     requisites    to      decision. 

63:4q. 
In  general.     63:42. 
Application  of  the  rules  to  dif- 
ferent   Federal    questions. 

63:44. 
Nature     of     decision    as    affecting 

right  of  review.     63:53. 
Decision    need    not    be    erroneous. 

63:56. 
Decision  must  be  controlling.     63: 

56. 

c.  Who  may  appeal;  from  what  decisions. 

§  3.  Generally. 

See  also  supra,  II. 

Who  may  appeal  to,  or  sue  out  writ  of  error 

from.      Federal      Supreme 

Court.     66:854. 


APPEAL  AND   ERUOR,  XI.  (Ed.  Notes  ) 


131 


Right  to  appeal  from  order  of  Federal  cir- 
cuit court  remanding 
cause  to  state  court. 
1:  67. 

Right  of  administrator,  executor,  or  trustee 
to  appeal  as  party  ag- 
grieved.    13:745.* 

Appeal  by  distributee  from  decree  on  ac- 
counting of  which  he  had 
no    notice.     63:97. 

Right  of  state  to  appeal  in  a  criminal  case. 
19:342. 

What  entry  or  record  necessary  to  com- 
plete judgment  or  order 
for  purposes  of  appeal. 
28:627. 

Appeal  from  drain  assessment.     10:288.* 

d.  Transfer  of  cause. 

§  4.  Generally. 

Practice  and  procedure  governing  the  trans- 
fer of  causes  to  the  Fed- 
eral Supreme  Court  on 
writ  of  error  or  appeal. 
66:833. 
The  writ  of  error.     66:834. 

Issuance  and  allowance.     66:834. 
In  general.     66:834. 
Where    the    writ    runs    to    a 
state  court.     66:835. 
To  what  court  directed.     66:836. 
Form.     66:838. 

Generally.     66:838. 
Description  of  parties.   66:  839. 
Amendments.     66:839. 
Service.     66:840. 
The  appeal.     66:841. 

General  requirements.     66:841. 
Allowance.     66:841. 
Description  of  parties.     66:843. 
The  citation.    66:843. 
Necessity.     66:843. 

On  appeal.     66:843. 
On  writ  of  error.     66:844, 
Formal  requisites.     66:844. 
By  whom  signed.     66:845. 
In  general.     66:845. 
On  writ  of  error  to  state  court. 
66:845. 
Service.     66:845. 
Appearance.     66:853. 
Second  appeal  or  writ  of  error.    66:870. 
§  5.  Time. 

Time  for  instituting  proceedings  to  transfer 
cause  to  Federal  Supreme 
Court.     66:846. 
When  review  only  is  desired.     66:846. 
Appeals  from,  or  writs  of  error  to, 
inferior     Federal     courts. 
66:846. 
Writs    of    error    to    state    courts. 
66:847. 
When  supersedeas  is  desired.     66:847. 
How  time  is  to  be  computed.     66:848. 
When  time  begins  to  run.     66:848. 
When     appellate     proceedings     are 

deemed   begun.     66:849. 
Suspensions  and  interruptions.    66: 
849. 
How  objections  may  be  raised.     66:850. 


Constitutionality  of  statute  reviving  right 

of  appeal  on  writ  of  error 

after  same  barred  by  lapse 

of  time.     45:614. 

First  and  last  days  in  computing  time  for. 

49:226. 
Time  for  filing  record  and  docketing  cause 
on  error  or  appeal  to  Fed- 
eral  Supreme   Court.    66: 
850. 
§  6.  Parties. 

Parties  necessary.    7:231.* 
On    error    or    appeal    to    Federal    Supreme 
Court.     66:854. 
Who    may    institute    proceedings.     66: 

854. 
Necessary  or  proper  parties.     66:855. 
Abatement   and   substitution.      66:  856. 
Description  of.     66:  839,  843. 
§  7.  Record. 

What  record  on  appeal  must  show.     8:611. 
What  the  record  must  show  respecting  the 
presentation    and    decision 
of  a  Federal    question    in 
order  to  confer  jurisdiction 
on  the  Supreme  Court  of 
the    United    States    of    a 
writ  of  error  to    a    state 
court.     63:471. 
The  general  rules.     63:471. 
Presentation  as  affected    by    the    class 
to  which  the  Federal  ques- 
tion belongs.     63:472. 
The  decision   of   the   Federal   question. 

63:474. 
Effect  of  certificate  of  state  court.     63: 
477. 
The  record  for  the  purpose  of  showing  juris- 
diction    in     the     Supreme 
Court      of      the       United 
States  of  a  writ  of  error 
to  a  state  court.     63:329. 
In  general.     63:329. 
Findings  of  fact.    63:330. 
Opinion  of  state  court.     63:330. 
Certificate  of  state  court.     63:332. 
Petition  for  rehearing.     63:  333. 
Petition  for  allowance  of  writ  of  error. 

63:333. 
Counsel's  arguments  or  briefs.     63:333. 
Assignment  of  errors.    63:333. 
Filing  record  and  docketing  cause    in    Fed- 
eral   Supreme    Court.    66: 
850. 
Time.    66:850. 
Clerk's  fees.     66:850. 
Docketing  twice.       66:852. 
Opinion  of  the  court  below  as  part  of  the 

record.     15:798. 
Amendment   of   record   to   cure    defect     for 
which  motion  in  arrest  of 
judgment  has  been  made. 
67:  185. 
§  8.  Bond. 

Security  on  error  or  appeal  to  Federal  Su- 
preme Court.     66:858. 
Necessity.    66 :  858. 
Requirements  as  to  time.    66:858. 

When  supersedeas  is  desired.     66: 
858. 
Formal  requisites  in  general.     66:859. 
Parties.     66:859. 


182 


APPEAL  AND  ERROR,  XI.  (Ed.  Note?.) 


Sureties.     66:860. 
Acceptance  and  approval.     66:860. 
Amount.     66:860. 

New  or  additional  security.     66:860. 
Condition   in   execution  of   appeal   bond   as 
to  its  execution  by  anoth- 
er.    45:333. 
Power  of  surety  company  to  act  as  surety 

on  appeal  bond.     48:590. 
Who   is   real   party  in   interest,   who   must 
bring     action     on     appeal 
bond.     64:  605. 
Form   of   judgment    on    appeal    bond.      62: 

442. 
Penaltv  as  limit  of  liability  on  appeal  bond. 

55:387. 
§  g.  Effect  of  appeal. 

Effect  of  right  to  appeal  from  divorce  decree 
on  party's  right  to  remar- 
ry. 17:573. 
Effect,  on  marriage  relation,  of  appeal  from 
conviction  of  husband  or 
wife.  31:518. 
Protection  of  property  pending  appeal.     11: 

480.* 
Effect  of  appeal  from  order  appointing  re- 
ceiver. 20:395. 
Further   proceedings   pending   error   or   ap- 
peal to   Federal    Supreme 
Court.     66:862. 
When  there  is  supersedeac.     66:  864. 
Compliance    with    statutes    as    af- 
fecting.   66:  864. 
In  civil  cases.     66:  864. 
In  criminal  cases.     66:  864. 
What  action  is  precluded  by  super- 
sedeas. 66:  868. 
Modifying  or  vacating.    66:  868. 
Injunction  cases.  66:  868. 
Habeas  corpus  proceedings.    66:  869. 
Bail.     66:  869. 

e.  Objections  and  exceptions. 

§  lo.  Generally. 

Objections   must   be   made   in   court   below. 

5:  591;*    8:  608.* 
Necessity   of   exception   to   improper   state- 
ment  by    prosecuting    at- 
torney.    46:  645. 
Exceptions  to  ruling.    8:  608.* 

Purpose  and  effect  of.     12:  554.* 
When  must  be  taken.     8:608;*  12:554.* 
Necessity  of  taking  at  trial.     12:  555.* 
Sufficiency       of      general       exceptions. 

8:  608.* 
What  exceptions  too  indefinite.    8:609.* 
Necessity  that  exceptions  to  admission 
of     evidence    be     specific. 
8:  609;*  12:  555.* 
Necessity  of  stating  grounds  of  objec- 
tion.    8:610.* 
What  bill  of  exceptions  must  show.    8:  611. 

f.  Hearing  and  determination. 

§   11.   Questions  reviewable;   extent  of  re- 
view. 
Decision   as   to   competency  of   children   as 

witnesses.     19:  605. 
Excessive  sentence.     45:  150. 


What  questions  the  Federal  Supreme  Court 
will  consider  in  reviewing 
the      judgment     of     state 
courts.     63:    571. 
The  general  rule.     63:  572. 
Particular     questions    not    reviewable. 
63:  573. 
Non-Federal   questions   in   general. 

63:  573. 
Statutory  construction.     63:  575. 
Validity  of  state    legislation.     63: 

576. 
Questions  not  involved  in  the  rec- 
ord.    63:  576. 
Questions  of  fact.    63:  577. 
Miscellaneous.     63:  578. 
The  rule  where  constitutional  rights  are 
involved.     63 :  578. 
Impairment  of  contract  obligations. 

63:  578. 
Full  faith  and  credit.     63:  580. 
Due  process  of  law.    63:  581. 
Equal    protection      of     the      laws. 
63:  581. 
§12.  Sufficiency  of  evidence;  facts. 
Power  to  reverse  conviction  for  insufficiency 
of  evidence  to  sustain  the 
verdict.     17:  484. 
Questions  of  fact  on  error  from  Federal  Su- 
preme     Court      to      state 
Court.     63:  577. 
§  13.  Excessive  or  inadequate  damages. 
Inadequacy  of  damages  as  a  ground  for  set- 
ting  aside   a   verdict.    47: 
33. 
Power   and   duty    of   the    court    as   to. 

47:  33. 
Rule  in  contract  actions.     47:  35. 
Rule  in  actions  with  relation  to  prop- 
erty  and  property   rights. 
47:38. 
Rule  in   actions   for  personal  injuries. 
47:  39. 
Generally.     47:  39. 
Actions     for     libel     and     slander. 

47:  42. 
Actions   for    malicious    prosecution 
and     false     imprisonment. 
47:43. 
Actions  for  assault  and  battery  and 

other  torts.     47:  44. 
Actions  for  personal  injuries  caused 
by   negligence.      47:  44. 
General  rules  as  to.     47:  44. 
What  sufficient  to  show  bias  or 
omission       of      duty — in- 
stances.    47 :  45. 
Statutory  provisions   as   to  small- 
ness  of  damages  for  per- 
sonal injury.     47:  48. 
Effect  of  uncertainty  as  to  cause  of  in- 
jury.    47:  48. 
Who  entitled  to  relief.     47:49. 
Matters  of  procedure.  47:  50. 
Increase  of  verdict  by  court.    47:  51. 
Power  of  appellate  court  to  interfere  with 
verdict  for  excessive  dam- 
ages.    26:  384. 
Reviewing  power  generally.     26:  384. 
Requiring  remittitur  in  appellate  court. 
26:  385. 


APPEAL  AND  ERROR,  XI.  (Ed.  Notes);  APPEARANCE. 


188 


Appellate  courts  granting  new  trials  for 
excessive     damages.       26: 
391. 
New  York  cases.     26:  396. 

Requiring  remittitur.     26:  396. 
Reversing  for  excessive  damages. 
26:  398. 
English  cases.     26:  398. 
Decision  that   damages  excessive,  effect  on 

second  appeal.    34:  343. 
§  14,  What  will  warrant  reversal. 
Reversal  of  conviction  because  of  unfair  or 
irrelevant      argument      or 
statements     of     facts    by 
prosecuting  attorney.     46: 
641. 
Improper  arguments  or  statements  as  a 

k  ground     for     appeal.     46: 

641. 
Necessity  of  objection,  and  when  made. 
46:  642. 
What  relief    must    be  asked    for.     46: 
644. 
Necessity  of  ruling  and  exception.    46: 
645. 
Necessity  of  perpetuation  in  the  record. 
46:  646. 
Effect  of  withdrawal  or  direction  to  dis- 
regard.   46:  648. 
Generally.    46:  648. 
By  prosecuting  attorney.     46:  648. 
By  the  court.    46:  648. 
Must  be  prejudicial.    46:  650. 
The  degree  of  impropriety  warranting  a 
reversal.     46:  652. 
The  general  principle.     46:   652. 
Denunciation  and  abuse  of  the  de- 
fendant.    46:  652. 
Attack    on    defendant's    witnesses. 

46:  653. 
Attack  on  counsel.     46:  655. 
Misstatement    of    the    facts.     46: 

655. 
Statement  of  facts  not  proved.    46: 
657. 
In  opening  address.    46:  657. 
In  closing  argument.     46:  658. 
In  embellishment    or    illustra- 
tion of  argument.    46:  661. 
Ck)mments       on       excluded       evidence. 
46:  661. 
Misstatements  of  the  law.   46:  663. 
Reference  to  previous  conviction  or 

other  crimes.     46:  663. 
Comments  on  personal  appearance 
of  the  defendant.     46:  665 
Comments  on  absence  of  witnesses 
and  what  they  would  testi- 
fy to.     46:  665. 
Comments  on  character  and  failure 
to   prove    character.      46: 
666. 
Expression  of  personal  opinion  as 

to  guilt.     46:  667. 
Appeals  to  passion,  prejudice,  and 

public  opinion.  46:  668. 
Comments  on  cost  of  trial,  right  to 
appeal,  punishment,  etc. 
46:670. 
Improper  language  prompted  by  state- 
ments of  the  defense.  46: 
670. 


Effect  of  verdict  which  is  clearly  right. 

46:  672. 
Excessive   sentence   as  ground  of  reversaL 

45:  150. 
Placing  manacles  upon  prisoner  as  ground 

of   reversal   of  conviction. 

39:  824. 

g.  Effect  and  conclusiveness  of  decision. 

§15.  Generally. 

Effect    of    reversal    upon     previous   judicial 

sale.     21 :  52. 
Liability  for  tort  in  doing  acts  authorized 
by     subsisting     judgment 
which    is    afterwards    re- 
versed.     45:  800. 
Form   and   extent   of   relief   in   case  of  ex- 
cessive   sentence.      45:150. 
Conclusiveness  of  prior  decisions  on  subse- 
quent appeals.    34:  321. 

Generally.     34:  321. 

Where  the  prior  decision  is  erroneous. 
34:  325. 

As  applied  to  matters  after  remanding 
a  case.     34:  329. 

As  to  evidence.     34 :  332. 

As  to  party.     34:  332. 

As  to  matters  necessarily  involved.  34: 
333. 

As  to  matters  of  estoppel.     34:  334. 

As  to  matters  of  jurisdiction.     34:  334. 

As  to  defective  appeals.     34:  335. 

As  to  cross  appeals.     34:  335. 

Where  prior  decision  is  not  final.  34: 
336. 

As  to  matters  of  pleading.     34:  337. 

As  to  injunctions  and  interlocutory  or- 
ders.    34:  340. 

As  to  questions  which  might  have  been 
made  on  prior  appeal.  34: 
341. 

As  to   excessive   verdicts.     34:  343. 

Change  of  court.     34:  343. 

As  to  effect  of  dicta.    34:  344. 

"Where  the  questions  are  different.  34: 
345. 

As  to  ambiguous  decisions.     .34:  346. 

As  to  limited  decisions.     34:  346. 

As  to  decisions  by  a  divided  court.  34: 
346. 

Statute  and  Constitution  changing  the 
rule.     34:  347. 

Rule   in   intermediate   courts.     34:  347. 

h.  Costs. 

§16.  Generally. 

Right  of  executor  or  administrator  to  ap- 
peal in  forma  pauperis. 
68:  418. 


APPEARANCE. 


On  Appeal,  see  Appeal  and  Error,  m.  e. 

Attorney's  Right  to  Withdraw,  see  At- 
torneys, 48. 

Opinion  Evidence  as  to,  see  Evidence,  1409, 
1410. 


114 


APPELLATE  COURT— APPRAISALS. 


By  Garnishee,  see  Garnishment,  113. 

For  State  in  Habeas  Corpus  Proceeding,  see 

Habeas  Corpus,  51,  52. 
For  Infant,  see  Infants,  101. 
Effect  of,  on  Right  to  Attack  Judgment,  see 

Judgment,  136,  153,  156. 
Unauthorized,    see    Injunction,    281;    Judg- 
ment.  25,   156,   428,  436,   439;    Judicial 

Sale,  37. 
Jurisdiction  to   Render    Judgment    on,    see 

Judgment,  35. 
Waiver  of  Defect  in  Pleading,  see  Pleading, 

53. 
Waiver  of  Objection  to  Tax  by,  see  Taxes, 

394. 

1.  A  general  appearance  by  any  of  a  num- 
ber of  nonresident  defendants  renders  an 
order  of  publication  unnecessary  as  to  such 
of  them  as  appear.  McClung  v.  Sieg,  54  W. 
Va.  467,  46  S.  E.  210,  66:  884 

2.  A  nonresident  owner  of  property  at- 
tached within  the  state  waives  his  objection 
to  the  jurisdiction  of  the  court  by  entering 
his  appearance  and  pleading  to  the  merits. 
Brand  v.  Brand,  116  Ky.  785,  76  S.  W.  868, 

63:  206 

3.  The  appearance  of  a  city  to  an  amend- 
ed petition  making  it  a  defendant  in  an 
action  originally  brought  against  an  alleged 
waterworks  corporation  which  had  no  exist- 
ence gives  jurisdiction  as  if  the  petition  was 
originally  filed  against  the  city.  Newport 
v.  Com.  106  Ky.  434,  50  S.  W.  845,  51  S.  W. 
433,  45:  518 

4.  A  railroad  company,  by  appearing  for 
any  other  purpose  than  to  object  to  juris- 
diction, submits  itself  to  the  jurisdiction  of 
the  court,  and  waives  an  objection  that  the 
action  is  brought  in  the  wrong  count  v.  con- 
trary to.  Ohio  Rev.  Stat.  §  5027.  Ohio  S.  R. 
Co.  V.  IMorey,  47  Ohio  St.  207,  24  N.  E.  269, 

7:701, 

Editorial  Xotes. 

EfiFect  of,  by  nonresident  to  give  jurisdiction 
of    divorce    case.     23:  287. 

Effect  of,  as  an  admission  or  waiver  by  a 
fiduciary.     32:  671. 

Power  of  defendant's  attorney  to  withdraw 
answer  or  appearance  and 
permit  default  judgment. 
33:  515. 

Effect  of  unauthorized,  of  attorney.  9: 
gr44;*  21:' 848. 

Effect  of,  upon  local  jurisdiction  of  action 
against  foreign  corpora- 
tion.    70:  701. 

By  appellee  or  defendant  in  error  in  Fed- 
eral Supreme  Court.  66: 
853. 


APPELLATE  COURT. 
Original  Jurisdiction  of,  see  Courts,  II.  a,  2. 


APPLAUSE. 


As   Ground    for   Reversing   Conviction,    see 
Appeal  and  Error,  850. 


APPLIANCES. 

Master's  Duty  as  to,  see  Master  and  Serv- 
ant, II.  a,  4. 


APPLICATION. 


Of  Deposits,  see  Banks,  IV.  a,  2;  VTII.  §  7. 
For  Insurance,  see  Conflict  of  Laws,  69-71; 

Evidence,    1023;    Insurance,    III.    e,   2: 

V.  b. 
For  Patent,  see  Patents,  15. 
Of  Payments,  see  Payments,  IV.;  V.  §  5. 


APPOINTMENT. 


Of  Personal  Representative,  see  Executors 
and  Administrators,  I. 

Of  Guardian,  see  Guardian  and  Ward,  I. 

Of  Committee  for  Insane  Person,  see  In- 
competent Persons,  49. 

To  Office,  see  Officers,  I.  b;  IV.  §  4. 

Power  of,  see  Powers. 

Of  Receiver,  see  Receivers,  I. 

Of  Preachers,  see  Religious  Societies,  46. 

Of  Trustees,  see  Trusts,  107-113,  118. 


APPORTIONMENT. 


Of  Annuity,  see  Annuities,  5,  6. 

Of  Expense  of  Highway  and  Bridge  between 
City  and  Towns,  see  Bridges,  7. 

Of  Representation  in  Congress,  see  Con- 
gress, 3. 

Of  Taxes.  Review  of,  see  Constitutional 
Law,  229. 

Of  Right  of  Action,  see  Contracts,  681. 

Review  of  Apportionment  Act,  see  Courts, 
129  135:   Mandamus,  169. 

Of  Damages,  see  Damages,  III.  u. 

Of  Election  Districts,  see  Election  Districts. 

Of  Loss  Between  Insurers,  see  Insurance, 
VI.  g. 

Between  Judges,  of  Labor  of  Holding  Courts, 
see  Judges,  5. 

Of  Rent,  see  Landlord  and  Tenant,  205,  206. 

Termination  of  Legislative  Existence  by, 
see  Legislature,  6. 

Of  Loss  between  Life  Tenant  and  Re- 
maindermen, see  Life  Tenants,  2,  3. 

Of  Representatives  in  Congress,  see  Man- 
damus, 48. 

Mandamus  to  Compel  Division  of  County 
for,  see  Mandamus,  60. 

Of  Street  Improvement  Assessment,  see 
Public  Improvements,  III.  e. 

Editorial  Notes. 

Of  annuities,  in  absence  of  statute.    63:  616. 


APPRAISALS. 


As  Evidence,  see  Evidence,  1007. 

Of  Insurance  Loss,  see  Insurance,  VI.  a. 


APPRENTICES— APPROPRIATIONS. . 


135 


On  Foreclosure,  see  Mortgage,  171,  172. 

■Conclusiveness  of  Decision  of  Appraisers, 
see  Arbitration,  20. 

Hight  to  Review  Appointment  of  Apprais- 
ers, see  Contracts,  754. 


APPRENTICES. 


Evidence  of  Abuse  of.  see  Evidence,  1543. 
Enjoining  Enticing  of,  see  Injunction,   140. 

1.  An  instrument  binding  children  to  the 
service  of  a  person  during  their  minority, 
though  signed  by  him  and  by  their  parents, 
is  void  as  to  them  as  an  indenture  of  ap- 
prenticeship under  S.  C.  Rev.  Stat.  1893,  § 
2206  unless  signed  by  the  infants,  although 
the  statute  does  not  expressly  prdVide  for 
their  signature.  Anderson  v.  Young.  54  S. 
€.  .*]88.  32  S.  E.  448,  44:277 

2.  Directors  of  the  poor  who  apprentice  a 
pauper  boy,  with  knowledge  of  the  unfit 
character  of  the  master,  and  who,  with 
knowledge  that  the  child  is  being  abused 
bj'  such  master,  refuse  to  take  any  measures 
to  rescue  him  from  th*e  cruelty  to  which  he 
is  subjected,  are  criminally  liable  at  common 
law  as  for  a  wilful  neglect  or  refusal  to 
discharge  their  duties.  Com.  v.  Covle,  160 
Pa.  36,  28  Atl.  634,  *24:  552 

Editorial  Notes. 

Effect  of  death  on  contract  of.     23:  707. 
Duty  to  furnish  medical  aid  to.    28:  555. 
Effect  of  master's  death.     23:  713. 
Homicide  by  excessive  chastisement  of  ap- 
prentice.    60:  804. 


APPROACHES. 


To  Bridge,  see  Bridges,  4,  20,  32;  Eminent 
Domain.  393.  421-426;     Trial,  230. 

To  Railroad  Station,  Safety  of,  see  Carriers, 
II.  a,  9;  IV.  §  8. 

Editorial  Notes. 

Approaches  of  a  bridge  as  part  of  it.     20: 
416. 


APPROACHING. 


Who  Are  Persons  Approaching,  Entitled  to 
Notice  of  Blast,  see  Blasting,  5. 


APPROPRIATIONS. 

L^surpation  of  Judicial  Power  in  Act,  see 
Constitutional  Law,  254. 

Retrospective  Legislation  as  to  Form  and 
^Method  of  Passing  Bill,  see  Constitu- 
tional Law,  118. 

Refusal  to  Make,  as  Impairment  of  Obli- 
gation of  Contract,  see  Constitutional 
Law.  1114. 

iReview  of,  by  Court,  see  Courts.  136. 


For  Disposal  of  Sewage,  see  Drains  and 
Sewers,  7. 

Injunction  against,  see  Injunction,  340,  341. 

Mandamus  to  Compel  Adjustment,  see  Man- 
damus, 37. 

Of  Public  Money,  for  what  Purposes  Al- 
lowed, see  Public  Moneys. 

For  Factory  Inspectors,  see  Statutes,  227. 

Sufficiency  of  Title,  see  Statutes,  278. 

Of  Water,  see  Waters,  II.  c. 

1.  An  appropriation  for  a  county  exhibi- 
tion at  a  state  centennial  exposition  in  1896 
is  not  avoided  by  a  subsequent  extension 
and  prolongation  of  the  exposition  so  that, 
while  beginning  in  1896,  it  shall  be  carried 
into  the  year  1897.  Shelby  County  v.  Ten- 
nessee Centennial  Exposition  Co.  96  Tenn. 
653,  36  S.  W.  694,  33:  717 

2.  An  appropriation  in  a  prior  act  is  not 
annulled  as  to  future  interest  on  certificates 
by  an  unconstitutional  statute  which  at- 
tempts to  ratify  the  act  of  commissioners 
in  stopping  interest  on  such  certificates,  in 
violation  of  the  contract,  for  nonpresent- 
ment  for  payment  at  a  time  and  place 
specified  in  a  notice  given  by  them.  Carr  v. 
State  ex  rel.  Du  Coetlosquet,  127  Ind.  201. 
26N.  E.  778,  11:370 
Necessity  of. 

See  also  infra.  Editorial  Notes. 

3.  Ark.  act  March  18,  1879  (Mansf.  Dig. 
§  1451).  forbidding  contracts  in  behalf  of  a 
count}'  in  the  absence  of  an  appropriation, 
is  not  unconstitutional  in  its  application  to 
bridges  as  interfering  with  the  exclusive  - 
jurisdiction  vested  by  the  Constitution  in 
ithe  county  court  over  bridges.  Fones  Bros. 
Hardware  Co.  v.  Erb,  54  Ark.  645.  17  S. 
W.  7,  13:  353 

4.  Ark.  act  March  18.  1879  (Mansf.  Dig. 
§  1451).  forbidding  contracts  in  behalf  of 
a  county  for  which  there  is  no  unexpended 
appropriation,  applies  to  contracts  for 
bridges.  Id. 

4a.  A  constitutional  provision  that  "no  in- 
debtedness shall  be  incurred  .  .  .  ex- 
cept in  pursuance  of  an  appropriation"  does 
not  prevent  the  legislature  from  incurring, 
or  immediately  directing  the  incurring  of. 
indebtedness  for  the  usual  and  current  ad- 
ministration of  state  affairs, — such  as 
making  a  contract  for  public  printing, — 
without  first  making  an  appropriation  for 
the  specific  purpose.  Carter  v.  Thorson,  5 
S.  D.  474,  59  N.  W.  469,  24:  734 

5.  A  statute  providing  for  the  payment  of 
bounties'  by  a  county  treasurer  for  the  de- 
struction of  certain  wild  animals  or  poison- 
ous weeds  and  for  planting  trees,  the 
amount  to  be  credited  in  his  settlement 
with  the  state  treasurer,  violates  a  consti- 
tutional provision  that  "no  money  shall  be 
paid  out  of  the  treasury  except  upon  ap- 
propriations made  by  law  and  on  warrant 
drawn  by  the  proper  officer."  The  fact  that 
the  money  has  not  actually  reached  the 
treasury  does  not  prevent  the  application  of 
this  provision  to  money  belonging  to  the 
state.  Institution  for  Edu.  of  Mute  &  Blind 
V.  Henderson,  18  Colo.  98.  31  Pac.  714. 

18:  398 


186 


APPROPRIATIONS. 


What  constitute;  form;  sufficiency. 

6.  A  promise  to  pay,  contained  in  a  state 
certificate  of  indebtedness,  is  not  an  appro- 
priation. Carr  v.  State  ex  rel.  Du  Coetlos- 
quet,  127  Ind.  204,  26  N.  E.  778,  11 :  370 

7.  An  act  creating  a  state  debt  sinking 
fund,  and  setting  apart  for  the  payment  of 
such  debts  certain  funds  which  shall  not  be 
paid  out  for  any  other  purpose,  declaring 
that  the  purpose  of  the  act  is  to  provide  for 
the  payment  of  certain  bonds  or  certificates, 
constitutes  an  appropriation  for  their  pay- 
ment. Id. 

8.  A  sufficient  appropriation  is  made  by 
an  act  expressly  authorizing  expenses  to  be 
incurred,  and  directing  that  they  shall  be 
paid,  when  it  is  taken  in  connection  with 
the  general  statute  authorizing  the  auditor 
of  the  state  to  "draw  warrants  on  the  treas- 
urer for  all  moneys  directed  by  law  to  be 
paid,"  etc.  Henuerson  v.  State  Soldiers  &  S. 
Monument  Comrs.  129  Ind.  92,  28  N.  E.  127, 

13:  169 

9.  An  appropriation  need  not  be  made  in 
a  particular  form  or  in  express  terms.  It  is 
sufficient  if  the  intention  is  clearly  evinced 
by  language  employed  in  the  statute  upon 
the  subject,  or  if  it  is  evident  that  no  effect 
can  possibly  be  given  to  a  statute  except 
to  make  an  appropriation.  Carr  v.  State  ex 
rel.  Du  Coetlosquet,  127  Ind.  204,  26  X.  E. 
778,  11:370 

lb.  An  appropriation  is  "made  by  law" 
for  the  salary  of  an  officer  by  a  state  Consti- 
tution which  plainly  declares  what  the 
amount  of  his  compensation  shall  be;  and 
no  legislative  appropriation  is  necessary  in 
that  case  to  authorize  payment.  State  ex 
rel.  Rotwitt  v.  Hickman,  9  Mont.  370.  23 
Pac.  740,  8:  403 

11.  No  appropriation  is  made  by  a  statute 
providing  for  the  payment  of  a  bounty  of  $5 
nut  of  the  general  fund  in  the  treasury  for 
each  coyote  which  shall  be  destroyed,  since 
the  total  amount  which  may  be  devoted  to 
such  purpose  is  not  specified.  Injiram  v. 
Colgan,  106  Cal.  113,  39  Pac.  437,  '  28:  187 
Confining  bill  for,  to  subject  of. 

12.  A  provision  in  a  statute  establishing 
free  employment  agencies,  that  the  salaries 
of  those  in  charge  of  them,  and  the  expenses 
of  necessary  equipment,  shall  be  paid  out  of 
public  moneys,  violates  a  constitutional  pro- 
vision that  bills  making  appropriations  for 
salaries  for  piiblic  officers  shall  contain  no 
provision  on  anv  other  subject.  Mathews 
V.  People,  202  Til.  389.  67  N.E.  28.       63:  73 

13.  Factory  inspectors  provided  for  in  111. 
act  June  17.  1893,  are  state  officers  or  offi- 
cers of  the  government.  Avithin  the  provision 
of  111.  Const,  art.  4.  §  16.  providing  that 
bills  making  appropriations  for  the  pay  of 
members  and  officers  of  the  general  assem- 
bly and  for  the  salaries  of  the  officers  of 
the  government  shall  contain  no  provisions 
on  anv  other  subject.  Ritchie  v.  People,  1.5.5 
111.  98,  40  N.  E.  454,  29:  79 

14.  A  statute  regulating  factories  and 
providing  for  the  appointment  of  factory  in- 
spectors is  not  invalidated  by  the  inclusion 
within  it  of  an  appropriation  for  the  salaries 
of  such  inspectors,  under  111.  Const,  art.  4, 


§  16,  declaring  that  appropriation  bills  for 
the  salaries  of  government  officers  shall  con- 
tain no  provision  on  any  other  subject,  as 
such  appropriation  is  merely  subordinate  to 
the  main  purpose    of    regulating    factories. 

Id. 
Majority  necessary  to  pass  bill  for. 

15.  An  appropriation  for  the  payment  of 
a  debt  or  the  repair  of  an  injury — such  as 
the  restoration  to  the  original  channel  of 
a  river  for  the  benefit  of  certain  riparian 
owners  of  waters  diverted  by  authority  of 
the  state  for  a  canal,  thus  depriving  them  of 
its  use — is  not  for  a  local  or  special  purpose 
such  as  requires  a  two-thirds  vote  under  N. 
Y.  Const,  art.  1,  §  9,  but  is  for  a  public  pur- 
pose. Waterloo  Woolen  Mfg.  Co.  v.  Shana- 
han,  128  N.  Y.  345,  28  N.  E.  358,       14:  481 

16.  The  expense  of  the  maintenance  of 
a  state  militia  is  a  necessary  expense  of 
government,  within  the  meaning  of  a  consti- 
tutional provision  that  appropriations  for 
other  purposes  must  receive  the  assent  of 
two  thirds  of  the  members  of  the  legislature. 
State  ex  rel.  Rogers  v.  Moore  (Ark.)  88  S. 
W.  881,  70:  671 

17.  That  a  portion  of  the  state  militia  has 
assumed  the  character  of  a  voluntary 
organization,  and  expects  to  receive  aid  as 
such  from  the  Federal  government,  does  not 
prevent  its  maintenance  being  a  necessity  of 
the  government,  within  the  meaning  of  a 
constitutional  provision  allowing  appropria- 
tions for  such  purposes  to  be  made  by  a 
mere  majority  vote  of  the  legislature.  "  Id. 

18.  The  restriction  on  appropriations  of 
public  moneys  for  local  purposes  without  the 
assent  of  two  thirds  of  the  members  elected 
to  each  branch  of  the  legislature,  made  by 
K  Y.  Const,  art.  3,  §  20.  is  not  violated  by 
the  act  of  March  23,  1896.  giving  two  thirds 
of  the  excise  taxes  thereby  imposed  to  the 
towns  and  cities  in  which  they  are  raised, 
since  such  funds,  which  never  reach  the 
state  treasury,  have  by  long  course  of  legis- 
lation been  treated  like  revenues  levied  for 
local  purposes,  and  not  as  public  moneys  of 
the  state  within  the  meaning  of  that  consti- 
tutional provision.  People  ex  rel.  Einsfeld 
V.  Murray,  149  N.  Y.  367,  44  N.  E.  146. 

32:  344 

19.  A  joint  resolution  of  the  legislature  is 
within  Mich.  Const,  art.  4,  §  45,  renuiring 
the  assent  of  two  thirds  of  the  members  to 
"every  bill  appropriating  the  public  money 
or  property  for  local  or  private  purposes."' 
Allen  v.  Board  of  State  Auditors,  122  Mich. 
324.  81  N.  W.  113,  47:  117 

20.  The  use  of  public  moneys  of  the  state 
to  pay  a  convict  for  wrongful  conviction  and 
imprisonment  is  a  mere  gratuitv.  subject 
to  Mich.  Const,  art.  4,  §  45,  requiring  the  as- 
sent of  two  thirds  of  the  legislature  for  an 
appropriation  for  private  purposes.  Id. 
Power  of  executive  to  veto  or  reduce  items 

of. 
See  also  Courts,  495. 

21.  A  constitutional  requirement  that  the 
legislature  shall  appropriate  each  year  at 
least  a  certain  amount  for  the  support  of 
public  schools  does  not  deprive  the  executive 
of  his  veto  power  of  separate  items  of  the 


APPURTENANCES;  ARBITRATION,  I. 


137 


appropriation.     Com.  ex  rel.  Elkin  v.  Bar- 
nett,  199  Pa.  161,  48  Atl.  976,  55:  882 

22.  Constitutional  power  to  veto  separate 
items  in  an  appropriation  bill  includes  power 
to  cut  down  an   item.  Id. 

23.  Under  constitutional  power  to  dis- 
approve of  any  item  or  items  of  an  ap- 
l)ropriation  bill  the  executive  may  dis- 
approve one  or  more  of  the  subdivisions  of 
a  clause  making  appropriations  for  schools, 
by  which  the  amount  is  distributed  among 
separate  designated  schools  or  educational 
interests,  either  as  to  the  beneficiary  or  as 
to  the  amount,  and  approve  the  residue.  Id. 
Continuing  appropriation. 

24.  A  continuing  appropriation  of  the 
amount  of  the  salary,  which  omission  of  an- 
nual appropriation  will  not  affect,  is  made 
by  a  statute  creating  an  office  and  fi^cing  the 
salary  in  obedience  to  a  constitutional  man- 
date, and  requiring  it  to  be  paid  by  the 
treasurer  in  the  same  manner  as  other  sal- 
aries of  state  oflficers  are  paid,  where  the 
constitution  provides  that  an  officer's  salary 
shall  not  be  diminished  during  his  term,  al- 
though it  also  provides  that  no  money  shall 
be  paid  out  of  the  trea^ry  except  on  ap- 
propriations made  by  the  legislature.  State 
ex  rel.  Henderson  v.  Burdick,  4  Wyo.  272, 
33  Pac.  125,  24:  266 
Partial  invalidity  of  appropriation  act. 

25.  An  appropriation  by  statute  does  not 
fail  because  of  the  invalidity  of  a  portion  of 
the  act  which  names  the  officers  who  are  to 
expend  the  money.  McComiek  v.  Pratt,  8 
Utah,  294,  30  Pac.  1091,  17:  243 
Duty  of  ofiBcers  as  to. 

26.  The  auditor  has  not  only  the  right, 
but  the  duty,  to  question  the  validity  of  a 
legislative  appropriation  on  the  ground  that 
it  is  unconstitutional,  when  he  is  called 
upon  for  a  warrant  upon  the  treasurer 
under  such  appropriation.  Norman  v.  Ken- 
tucky Bd.  of  Managers  of  World's  Col.  Expo. 
93  ky.  537,  20  S.  W.  901,  18:  556 

27.  The  state  auditor  must,  under  Kan. 
Gen.  Stat.  1889,  lllf  6582,  6597,  6676,  take 
notice  of  the  amount  appropriated  for  a 
specific  purpose,  and,  when  that  amount  has 
been  exhausted  for  that  purpose,  has  no 
authority  to  allow  or  audit  other  claims 
against  such  appropriation,  and  issue  war- 
rants therefor.  Henderson  v.  Hovey,  46 
Kan.  691,  27  Pac.  177,  13:  222 

28.  The  state  treasurer  may  properly  re- 
fuse to  recognize  or  pay  a  warrant  drawn 
by  the  state  auditor  after  the  appropriation 
against  which  it  was  dra;wn  is  exhausted. 

Id. 

Editorial  Notes. 

Necessity  of,  for  use  of  public  moneys.  13: 
222.* 

Self-executing  constitutional  provision  as 
to.     16:  285. 

To  aid  sectarian  institutions.     14:  418. 

How  made.     13:  169.* 

For  salary.     13:178.* 

Injunction  to  restrain  town  and  village  from 
making  illegal  appropria- 
tions.    7:  180.» 


Power  to  use  public  school  moneys  in  sup- 
port of  other  educational 
institutions.     15:  825. 


APPURTENANCES. 


Passing  by  Deed,  see  Cotenancy,  45;  Deeds, 

77. 
Easement  as,  see  Easements,  11.  c. 
Of  Yacht,  see  Sale,  9. 
Of  Water  Rights  to  Nonriparian  Land,  see 

Waters,  493. 
To  Uplands,  see  Waters,  134. 

Editorial  Notes. 

Corporeal  appurtenances  to  realty.     15:652. 

Soil  of  road.     15:  652. 

Land  as  appurtenant  to  buildings.     15: 
652. 

Appurtenances  to  railroads.     15:  654. 

In  mechanics'  lien  cases.     15:  653. 

Water-pipe,   aqueduct,  etc.     15:653. 

Personal    property    and    fixtures.     15: 
653. 

In  will  cases.     15:  654. 
Appurtenant  easements.    2:  285;*  14:  300. 


ARBITRATION. 


I.  In  General. 
II.  Arbitrators;  Umpire. 

III.  Award. 

IV.  Editorial  Notes. 

As  Affecting  Bond  for  Injunction,  see  In- 
junction, 491,  492. 

Waiver  or  Estoppel  by  Participation  in,  see 
Insurance,  V.  b,  5,  h. 

Of  Insurance  Loss,  see  Insurance,  VI.  a;  IX. 
§47. 

Provision  for  Fixing  Rent  on  Renewal,  by, 
see  Landlord  and  Tenant,  47,  48. 

Provision  for,  in  Street  Railway  Franchise, 
see  Municipal  Corporations,  249. 

Pleading  in  Case  of,  see  Pleading,  433. 

Effect  on  Title  of  Judgment  Based  on,  see 
Vendor  and  Purchaser,  97. 

As  to  References  Generally,  see  Reference. 


I.  In  General. 

1.  The  failure  to  appoint  an  arbitrator 
under  an  agreement  for  arbitration  cannot 
be  objected  to  by  another  party  who  has  ex- 
pressly given  notice  of  a  refusal  to  comply 
with  the  contract  for  arbitration.  Bristol 
V.  Bristol  &  W,  Waterworks,  19  R.  I.  413, 
34  Atl.  359,  32:  740 
Agreements  for;  what  may  be  submitted  to. 
Attorney's   Authority   to   Submit    Case    to 

Arbitration,  see  Attorneys,  58-60. 
What   Constitutes  a  Breach  of  Agreement, 

see  Election  of  Remedies,  22. 
Agreement  by  Infant,  see  Infants,  56-58. 
For  Editorial  Notes,  see  infra,  IV. 

2.  A  claim  arising  out  of  an  illegal  trans- 
action is  not  legitimate  subject-matter  for 
submission    to    arbitrators,    and    an    award 


138 


ARBITRATION,  11. 


founded  thereon  is  a  mere  nullity.     Single- 
ton V.  Benton,  114  Ga.  548,  40  S.  E.  811, 

58:  181 

3.  A  dispute  as  to  the  ownership  of  a 
strip  of  land  108  feet  wide,  claimed  by  each 
party  in  fee  simple  under  a  deed  which  in- 
cludes the  strip,  cannot  be  settled  by  arbi- 
tration, under  How.  (Mich.)  Stat.  §  8475, 
which  allows  arbitration  to  settle  bound- 
aries of  lands,  but  not  to  determine  a  claim 
to  anv  estate  in  fee  or  for  life.  Lang  v. 
Salliotte,  79  Mich.  505,  44  N.  W.  938,    7:  720 

4.  The  decision  of  the  question  of  law  as 
to  the  effect  which  the  failure  of  a  city  to 
have  bridge  piers  completed  within  a  certain 
time  had  upon  its  right  to  demand  liqui- 
dated damages  under  a  contract  to  com- 
plete the  bridge  at  a  certain  time  is  outside 
the  jurisdiction  of  a  commission  to  whom 
the  contract  refers  all  questions  "relative  to 
the  execution"  of  the  contract.  King  Iron 
Bridge  &  Mfg.  Co.  v.  St.  Louis,  43  Fed.  768, 

10:  826 

5.  A  provision  in  a  contract,  that  all  dif- 
ferences arising  imder  it  shall  be  submitted 
to  arbitrators  thereafter  to  be  chosen  will 
not  prevent  a  party  from  maintaining  a  suit 
in  the  first  instance  to  enforce  his  rights 
under  it.  Kinnev  v.  Baltimore  &  O.  Era- 
plovees'  Asso.  35  W.  Va.  385,  14  S.  E.  8. 

15:  142 

6.  An  agreement  between  parties  to  a 
contract  that  neither  shall  maintain  a  suit 
thereon  after  breach — all  differences  to  be 
settled  by  arbitration — is  without  binding 
force,  as  tending  to  oust  the  courts  of  their 
jurisdiction.  Hartford  F.  Ins.  Co.  v.  Hon. 
66  Xeb.  555,  92  N".  W.  746,  60:  436 

7.  An  agreement  by  which  parties  thereto 
stijnilato  in  advance  not  to  enforce,  by  a 
resort  to  a  court  of  justice,  a  substantial 
light  which  may  subsequently  be  involved 
in  dispute  between  them,  but  to  submit  such 
right  to  the  decision  of  a  private  tribunal, 
although  other  questions  involved  may  be 
reserved  for  adiudication  by  the  courts,  can- 
not be  enforced.  Id. 

8.  The  failure  to  appoint  an  arbitrator 
under  an  agreement  for  arbitration  cannot 
be  objected  to  by  another  party  who  has  ex- 
pressly given  notice  of  a  refusal  to  comply 
with  the  contract  for  arbitration.  Bristol 
V.  Bristol  &  W.  Waterworks.  19  R.  T.  413. 
34  Atl.  359,  32:  740 
Revocation  of  submission. 

By  National  Bank,  see  Banks.  30. 

See  .also  infra.  10.  11. 

For  F.ditorial  Xotes.  see  infra.  IV. 

9.  An  express  asrreement  not  to  revoke, 
;ind  to  waive  anv  right  to  revoke,  a  submis- 
sion to  arbitration,  does  not  prevent  a  rev- 
ocation thereof,  under  X.  Y.  Code  Civ.  Proc. 
§  23S3,  at  any  time  before  the  closing  of  the 
proofs  and  the  final  submission  of  the  cause 
for  decision:  and  upon  such  revocation  the 
foundation  of  the  arbitrator's  power  is  gone, 
and  no  further  action  can  be  had  under  the 
submission.  People  ex  rel.  Union  Ins.  Co. 
v.  Nash.  Ill  X.  Y.  310,  18  X.  E.  630,  2:  180 
Forfeiture  of  deposit  made  to  secure  award. 

10.  That  an  arbitration  agreement  pro- 
vides that  the  costs  shall  not  become  part 


of  the  amount  for  which  a  deposit  made  to 
secure  payment  of  the  award  shall  be  liable 
will  not,  in  ease  the  deposit  is  forfeited  by 
revocation  of  the  award,  prevent  the  deposit 
from  becoming  chargeable  with  the  costs 
which  the  statute  casts  upon  the  one  who 
revokes  an  arbitration.  Union  Ins.  Co.  v. 
Central  Trust  Co.  157  X.  Y.  633,  52  N.  E. 
671,  44:  227 

11.  A  deposit  made  to  secure  payment  of 
an  award  under  an  arbitration  agreement 
becomes  forfeited  upon  revocation  of  the 
arbitration,  and  subject  to  payment  of  the 
damages  allowed  by  statute  against  one 
who  revokes  an  arbitration,  although  made 
by  a  third  person  who  committed  no  breach 
of  the  agreement  and  had  no  control  over 
the  one  who  did  so.  Id. 
Court  of. 

Staving  Order  for  Rehearing  by,  see  Courts, 
'  268,  273. 

12.  The  court  of  mediation  and  arbitra- 
tion for  the  amicable  adjustment  of  dif- 
ferences between  employers  and  employees, 
which  is  created  by  Mich.  Comp.  Laws,  §§ 
559-568,  is  not  outside  the  grant  by  Mich. 
Const,  art.  6,  §  23,  of  the  power  to  create 
courts  of  conciliation  on  the  ground  that  it 
is  lacking  in  the  essential  powers  to  compel 
attendance  of  the  parties  and  to  enforce  its 
decisions.  Renaud  v.  State  Court  of  Media- 
tion and  Arbitration,  124  Mich.  648,  83  X. 
W.  620,  51 :  458 

13.  An  election  of  the  judges  of  a  court 
of  conciliation  the  creation  of  which  is  pro- 
vided for  by  Mich.  Const,  art.  6,  §  23.  is 
not  necessary,  since  the  Constitution  does 
not  specify  the  mode  of  their  selection,  and 
the  legislature  may  therefore  provide  for 
their   appointment.  Id. 

14.  The  power  to  grant  a  rehearing  is  not 
possessed  by  the  state  court  of  mediation 
and  arbitration  established  by  Mich.  Cnnm. 
Laws,  §§  559-568,  since  the  statute  conta5"s 
no  grant  of  such  power.  Id. 


n.  Arbitrators;  LTmpire. 

Certificate     of     Arbitrator,    see    Contracts, 

IV.  d. 
See  also  infra,  19. 
For  Editorial  Xotes,  see  infra,  IV. 

15.  An  umpire,  as  distinguished  from  a 
third  arbitrator,  may  properly  act  alone 
and  make  up  his  decision  alone.  Hartford 
F.  Ins.  Co.  V.  Bonner  Mercantile  Co.  44  Fed. 
151,  11:623 

16.  Submission  of  authorities  to  an  arbi- 
trator after  the  close  of  the  testimony, 
where  it  is  expressly  agreed  that  neither 
party  is  to  be  represented  by  counsel,  is  a 
violation  of  the  spirit  of  the  submission, 
which  will  avoid  the  award.  Hewitt  v.  Reed 
City.  124  Mich.  6,  82  X.  W.  616,  50:  128 
Compensation  of. 

See  also  infra,  22. 

17.  An  agreement  that  arbitrators  may 
fix  their  own  compensation  is  subject  to  the 
implied  condition  that  the  allowance  made 
to   themselves   shall   not    be    unreasonable. 


AliBITRATION,  111.— ARCHITECTS, 


139 


and  that  its  reascMiableness  may  be  de- 
tennihed  bv  the  court.  Kelly  v.  Lynchburg 
A  D.  R.  Co".  110  N.  C.  431,  15  S,  E.  200, 

16:  514 


III.  Award. 

Doctrine   of  Comity   as   to,   see   Conflict   of 

Laws,  12, 
Tederal     Juri.sdiction     to     Set     Aside,     see 
Courts,  345e,  361. 
Ldniissibilitv  of,  in  Evidence,  see  Evidence, 
842. 

^-Arbitrators   as   Parties    to    Action    to    Set 
Aside,  see  Parties,  139. 

Validity. 

Estoppel  to  Deny  Validity,  see  Estoppel,  155. 

■See  also  supra,  2. 

For  Editorial  Notes,  see  infra,  IV, 

18.  The  award  of  an  arbitrator  is  void 
when  he  acts  not  upon  his  own  volition  and 
investifration,  but  under  the  direction  of  one 
-of  the  parties.  Hartford  F,  Ins.  Co,  v, 
Bonner  Mercantile  Co.  44  Fed.  151,       11:  623 

19.  If  an  umpire,  on  an  arbitration  as  to 
the  amount  of  damage  to  goods  insured,  did 
not  .examine  damaged  goods,  but  procured 
the  separate  estimates  of  each  of  the  other 
-arbitrators,  and  then  made  up  his  estimate 
of  damage  and  loss  from  these,  with  the 
bills,  invoices,  books,  and  inventories  of  the 
insured,  he  was  guilty  of  misconduct  which 
should  avoid  his  award.  Id, 
Conclusiveness;  review. 

Award  against  Infant,  see  Infants,  113. 
For  Editorial  Notes,  see  infra,  IV. 

20.  The  decision  by  the  appraisers  as  to 
what  particular  articles  or  items  of  property 
are  embraced  within  the  general  descrip- 
tion of  the  property  on  which  they  are  to 
-appraise  damages  is  final  and  conclusive, 
"where  there  is  nothing  in  the  description  of 
the  property  to  embrace  or  suggest  the 
items  omitted  by  them.  Chandos  v.  Ameri- 
can F.  Ins.  Co.  84  Wis.  184,  54  N,  W.  390, 

19:  321 

21.  Where  a  cause  is  submitted  to  a 
solicitor  of  the  court  as  an  arbitrator,  "to 
liear  and  decide  the  same  according  to  the 
law  and  the  evidence,"  the  court  may  de- 
termine exceptions  as  to  whether  the  arbi- 
trator's conclusions  of  law  are  warranted  by 
the  facts  found.  Calbraith  v.  Lunsford,  87 
Tenn.  89,  9  S.  W.  365,  1:  522 

22.  The  court  when  asked  to  confirm  a  re- 
port of  arbitrators  may,  upon  suggestion  by 
exception  or  by  motion,  determine  whether 
•an  allowance  which  the  arbitrators  have 
made  to  themselves  by  consent  of  the 
parties  is  or  is  not  reasonable;  and  a  for- 
mal action  is  not  necessary,  Kelly  v.  Lynch- 
burg &  D.  R.  Co.  110  N,  C".  431,  15  S.  E.  200. 

16:514 

23.  An  award  made  by  arbitrators  may  be 
•set  aside  and  declared  null  and  void,  when 
it  rlH^irlv  appears  that  the  arbitrators  who 
signed  the  award  were  guilty  of  misconduct, 
partiality,  or  fraud.  Hartford  F.  Ins.  Co. 
"v.  Bonner  Mercantile  Co.  44  Fed.  151, 

11:  623 


IV.  Editorial  Notes. 

Agreements  to  arbitrate.     15:  142. 
Specific  performance,     15:142, 
Remedy  at  law  for  breach,     15:142. 
As  a  bar  to  actions.     15:142, 
Claims    against    building    and    loan    asso- 
ciation,    35 :  294, 
Validity  of  award.     11:  625.* 
Omissions    from    a.ward.      11:626.* 
When  award  set  aside.     11:  623.* 
Relief  from  mistake  in  award.     11:  624.* 
Submission    to;    effect    of;    revocation    of; 
judgment    on     award.     2: 
180.* 
Right  of  woman  to  hold  office  of  arbitrator. 

38:  210. 
Arbitration  of  infant's  cause  of  action.     70: 

170. 
Effect  of  award  upon  claim  arising  out  of 
illegal     transaction.       58: 
181, 
In  general.     58:  181. 
The  illegal  transaction  which  has  been 
the  subject  of  arbitration. 
58:  181. 
An  evasion  of  public  statutes.     58: 
181. 
The  general  rule.    58:  181. 
Davis  V.   Wentworth.     58:  182. 
Private  agreement    as   to   costs    in 

criminal  case.     58:  182. 
Composition   of   felony.     58:  182. 
Gaming  agreements.     58:  182. 
Futures.     58:  182. 
Horse  race.     58:  183. 
Confederate  treasury  notes  as  con- 
sideration.    58:  183. 
Variant  decisions  distinguished  by 
reference  to  statutes.     58: 
183. 


ARCHBISHOP. 
Rights  as  to  Pew,  see  Pews,  2. 


ARCHITECTS. 


Certificate  of  Performance  of  Contract  by, 

see  Contracts,  IV.  d. 
Lien  of,  see  Mechanics'  Liens,  41. 
As   Party  to   Injunction   Suit,    see   Parties, 

195. 

Editorial  Notes. 

As  independent  contractors.     65:  465. 

Architect's  certificate  as  condition  precedent 
to  recovery  under  building 
contract.  5:  273;*  17: 
211. 

Effect  of  stipulation  in  contract  that  work 
shall  be  done  to  satisfac- 
tion of  architect.     5:  272,* 

Binding  effect  of  architect's  decision  as  to 
performance  of  building 
contract,     5 :  273,* 


140 


AREA  WAYS— ARREST.  I.  a. 


AREAWAYS. 

Under  Sidewalks,  see  Highways,  58,  59. 

Editorial  Notes. 

Liability  of  landlord  to  third  persons  for 
condition  of.     26:  198. 


ARGUMENT. 


Of  Counsel,  see  Appeal  and  Error,  Vll.  m.  5; 
Trial,  I.  d. 


♦  •» 


ARGUMEN  T  ATI  VENESS. 
Demurrer  for,  see  Pleading,  569. 

*—~^ 

ARID  LANDS. 

Providing  for  Irrigation  of,  see  Waters,  39. 

^*  » 

ARMORY. 

Duty  of  County  to  Maintain,  see  Militia,  12. 
Tax  on,  see  Taxes,  320. 


ARMY  AND  NAVY. 


Commander's  Liability'  to  Action  for  Tort, 

see  Action  or  Suit,  10. 
Assignability   of  Unearned  Pay   of  Retired 

Officer  of,  see  Assignment,  21. 
Bounty  to  Soldiers,  see  Bounties,  4. 
Preference  of  Veterans  under  Civil  Service 

Laws,  see  Civil  Service,  13-19. 
See  also  Militia. 

The  enlistment  of  a  minor  without  the 
written  consent  of  his  parent  or  guardian, 
if  he  has  one  entitled  to  his  services  and 
control,  is  invalid  and  of  no  legal  effect; 
and  the  invalidity  may  be  claimed  by  the 
minor  himself,  either  before  or  after  attain- 
ing his  majority.  Re  Chapman,  37  Fed. 
327,  2:  332 

Editorial  Notes. 

Use  of  municipal  funds  to  provide  soldiers. 

14:476. 
Exemption  of  consul  from  military  service. 

45:  587. 


ARRAIGNMENT. 


Waiver  of  Objection  as  to,  see  Appeal  and 

Error,  675. 
Trial  without,  as  a  Bar,  see  Criminal  Law, 

148. 


ARREST. 

I.  For  Crime. 

a.  In  General. 

b.  Without  Warrant. 
11.  In  Civil  Cases. 

III.  Editorial  Notes. 

Assault  \A'Tiile  Attempting  to  Escape  Ar- 
rest, see  Assault  and  Battery,  13,  14. 

Assault  in  Resisting,  see  Evidence,  2137. 

Release  from,  on  Bail,  see  Bail  and  Recog- 
nizance. 

Liability  for,  of  Sureties  on  Mayor's  Bond, 
see  Bonds,  72. 

Of  Passenger,  see  Carriers,  U.  a,  3,  d. 

Equal  Privileges  as  to,  see  Constitutional 
Law,  358. 

Validity  of  Contract  to  Make,  see  Contracts, 
515,  516. 

Of  Convict  Violating  Parole,  see  Criminal 
Law,  279. 

Punitive  Damages  for,  see  Damages,  48,  214. 

Measure  of  Damages,  see  Damages,  III.  g. 

Evidence  as  to,  see  Evidence,  774,  1853, 
2133,  2137. 

Of  Fugitive  from  Justice,  see  Extradition, 
32-36;  and  also  infra,  III.  §  7. 

Civil  Liability  for  Making,  see  False  Im- 
prisonment ;  Municipal  Corporations, 
506-509;  Partnership,  47;  and  also 
infra,  HI.  §  4. 

Garnishment  of  Property  Taken  from  Per- 
son Arrested,  see  Garnishment,  53-55. 

Right  to  Co  on  Another's  Premises  to  Make, 
see  Homicide,  16. 

Unlawful,  as  Reducing  Homicide  to  Man- 
slaughter, see  Homicide,  20-22. 

Homicide  While  Resisting,  see  Trial,  222, 
678.     . 

Homicide  While  Making,  see  Homicide,  30- 
36;   Trial,  868. 

Of  Judgment,  see  Criminal  Law,  137-139  j 
Judges,  12. 

Libelous  Charge  of,  see  Libel  and  Slander, 
35. 

Mandamus  to  Compel,  see  Mandamus,  23. 

For  Disturbing  Military  Parade,  see 
Parades,  2. 

Reward  for,  see  Reward. 

Question  for  Jury  as  to,  see  Trial,  118,  195. 

Privilege  from,  see  Dismissal  or  Discontinu- 
ance, 10;  Writ  and  Process,  11.  d,  1;  IV. 
§3. 


L  For  Crime, 
a.  In  General. 

For  Editorial  Notes,  see  infra,  HI. 

1.  It  is  not  the  ofTicial  duty  of  a  peace  of- 
ficer to  arrest  a  criminal,  under  Tex.  Code 
Crim.  Proe.  art.  229,  unless  he  knows  the 
guilty  party,  as  well  as  the  fact  that  a 
folonv  has  been  -committed.  ^Nforris  v.  Kas- 
sling,"  79  Tex.  141,  15  S.  W.  226,         11:  398 

2.  An  arrest  under  a  warrant  which  was 
not  supported  either  by  oath  or  affirmation 


ARREST.  I.  b. 


141 


is  in  violation  of  S.  C.  Const,  art.  1,  §  16. 
State  V.  Higgins,  51  S.  C.  51,  28  S.  E.  15. 

38:  561 

3.  An  officer  with  a  writ  for  the  arrest 
of  a  railroad  engineer  may  lawfully  stop  a 
train  run  bv  him,  for  that  purpose.  St. 
Johnsl.urv  &  L.  C.  R.  Co.  v.  Hunt,  60  Vt. 
588,  15  Atl.  186,  1:  189 

4.  A  misreeital  of  the  hour  of  meeting  in 
a  warrant  of  arrest  of  absent  members  of 
a  board  of  commissioners,  which  could  mis- 
lead no  one,  will  not  impair  the  validity  of 
the  warrant.  State  ex  rel.  Rylands  v.  Pink- 
erman,  63  Conn.  176,  28  Atl.  110,  22:  653 
Disclosing  authority. 

5.  A  peace  officer  attempting  to  make  an 
arrest  for  unlawfully  carrying  arms  must 
make  known  to  accused  under  what  au- 
thority the  arrest  is  made,  although  by 
statute  he  has  power  to  make  the  arrest 
without  warrant,  where  he  is  by  statute  re- 
quired in  executing  warrants  to  make  kno\vn 
his  authority.  Montgomery  v.  State,  43 
Tex.  Crim.  Rep.  304,  65  S.  W.  537,      55:  866 

6.  The  exhibition  of  a  warrant,  or  a 
statement  of  the  grounds  of  the  arrest,  can- 
not be  demanded  before  submitting  to  an 
officer  who  makes  an  arrest,  although  it  can 
be  demanded  immediately  after  the  arrest. 
State  y.  Tavlor,  70  Vt.  1,  39  Atl.  447. 

42:  673 

7.  A  statement  of  official  capacity  suf- 
ficient to  compel  submission  to  an  arrest  is 
shown  by  a  statement  by  companions  of 
the  one  making  the  arrest,  that  he  is  an 
officer,  and  his  statement  that  he  makes  the 
arrest  by  authority  of  the  state.  Id. 
Measures  to  prevent  escape. 

Liability  for  Killing  to  Prevent  Escape,  see 

Bonds,  69. 
For  Editorial  Notes,  see  infra,  III.  3. 

8.  Xo  greater  force  or  violence  can  be  used 
to  prevent  the  escape  of  a  person  from  ar- 
rest than  might  rightfully  be  employed  to 
eff"pet  his  arrest.  Thomas  v.  Kinkead,  55 
Ark.  502,  18  S.  W.  57,  15:  558 

9.  An  officer  has  no  right  to  shoot  at  a 
person  who  is  merely  running  a-way  from 
him,  without  committing  any  violence,  when 
under  arrest  for  a  misdemeanor.  Brown  v. 
Weaver,  76  Miss.  7.  23  So.  388,  42:  423 

10.  An  officer  cannot  take  the  life  of  a 
person  arrested  for  a  misdemeanor  or  in- 
flict upon  him  a  great  bodily  harm  in  order 
to  prevent  his  escape,  except  to  save  his 
own  life  or  prevent  a  like  harm  to  himself. 
Thomas  v.  Kinkead,  55  Ark.  502,  18  S.  W. 
57.  15:  558 
Right  to  take  money  from  person  arrested. 

11.  Money  can  be  taken  from  a  prisoner 
under  arrest  only  when  there  is  probable 
ground  for  believing  that  it  is  connected 
with  the  ofl'ense  charged,  or  may  be  used  as 
evidence  on  his  trial.  Ex  parte  Hum.  92 
Ala.  102,  9  So.  515,  13:  120 

b.  Without  Warrant. 

Of  Passenger,  see  Carriers,  196. 

Due  Process  in,  see  Constitutional  Law,  822, 

823. 
See  p.ho  Reward,  15. 
For  Editorial  Notes,  see  infra,  m.  2. 


12.  An  arrest  by  an  officer  without  war- 
rant is  justified,  if  he  has  reasonable  cause 
to  believe  that  the  person  arrested  has  com- 
mitted a  felony  in  another  state.  State  v. 
Taylor,  70  Vt.  1,  39  Atl.  447,  42:  673 

13.  Constitutional  provisions  against  is- 
suing a  warrant  without  probable  cause  sup- 
ported by  oath  or  affirmation  do  not  apply 
to  an  arrest  without  a  warrant.  Burroughs 
V.  Eastman,  101  Mich.  419,  59  N.  W.  817, 

24:  859 
Warrant  in  possession  of  or  authority  from 

other  person. 
See  also  False  Imprisonment,  26,  27. 

14.  An  arrest  for  a  misdemeanor  cannot 
be  made  without  warrant,  on  the  authority 
of  a  letter  from  a  police  officer  of  another 
state.  Scott  v.  Eldridge,  154  Mass.  25,  27 
N.  E.  677,  12:  379 

15.  The  arrest  and  detention  of  a  person 
cannot  be  justified  against  a  petition  for 
habeas  corpus,  by  a  telegram  from  the  au- 
thorities of  another  state,  stating  that  they 
have?  a  warrant  for  his  arrest,  a  copy  of 
which  is  included  in  the  message,  and  that 
they  have  started  after  him  with  proper 
papers, — at  least  where  no  judicial  inquiry 
or  commitment  has  been  made.  Simmons  v. 
Van  Dyke,  138  Ind.  380,  37  N.  E.  973. 

26:  33 

16.  A  warrant  in  the  hands  of  a  marshal 
or  sheriff  will  not  justify  a  deputy  who  does 
not  have  possession  of  it,  in  making  an  ar- 
rest, where  the  statutes  require  the  warrant 
to  be  exhibited  on  request  to  the  person  ar- 
rested. Cabell  v.  Arnold,  86  Tex.  102,  23 
S.  W.  645,  22:  87 
For  what  crimes. 

For  Carrying  Weapons,  see  Carrying  Weap- 
ons, 2. 
For  Editorial  Notes,  see  infra.  III.  2. 

17.  An  officer  has  no  authority,  unless  ex- 
pressly given,  to  arrest  without  a  warrant 
for  a  mere  statutory  misdemeanor  not 
amounting  to  a  breach  of  the  peace.  Com. 
V.  Wright,  158  Mass.  149,  33  N.  E.  82, 

19:  206 

18.  A  person  who  openly  commits  a 
breach  of  the  peace  may  be  arrested  with- 
out warrant.  Boutte  v.  Emmer,  43  La. 
Ann.  980,  9  So.  921,  15:  63 

19.  An  officer  must  determine  at  his  peril 
whether  an  offense  has  been  committed,  be- 
fore making  an  arrest  without  a  warrant, 
where  his  power  to  arrest  without  warrant 
is  expressly  confined  to  cases  where  he  has 
seen  an  offiense  committed,  or  where  he 
knows  it  has  been  committed,  and  has 
reasonable  ground  to  apprehend  an  escape. 
State  V.  Hunter,  106  N.  C.  796,  11  S.  E.  366, 

8:  529 

20.  The  mere  fact  that  a  person  is  drunk 
on  the  streets  will  not  authorize  his  arrest, 
under  an  ordinance  for  being  "found  drunk 
in  the  streets,  hallooing  or  making  an  un- 
usual noise."  Id. 

21.  If  all  except  one  of  those  who  are  ob- 
structing a  sidewalk  disnerse  upon  request 
of  an  officer,  the  one  remaining  is  not  sub- 
ject to  arrest  for  obstructing  the  free  pas- 
sage of  the  street  "and  failing  to  disperse 
upon  notice."  Id. 


142 


ARREST,  II.,  III. 


22.  A  policeman  who  without  a  warrant 
arrests  a  citizen  for  refusing  to  make  way 
for  a  parade  on  the  public  street,  although 
he  has  been  ordered  by  the  chief  of  police  to 
clear  the  street,  is  liable  to  an  action  for 
false  imprisonment,  if  there  was  no  express 
legislative  authority  for  the  exclusive  ap- 
propriation of  the  street  for  the  purpose  of 
the  parade.  White  v.  State,  99  Ga.  16,  20 
S.  E.  742,  37:  642 

23.  A  mere  suspicion  that  a  woman  walk- 
ing on  the  street  in  the  night  is  plying  the 
vocation  of  a  prostitute  will  not  justify  her 
arrest,  without  a  warrant,  without  any  act 
on  her  part  indicating  that  such  is  her  pur- 
pose. Finkerton  v.  Verberg,  78  Mich.  573, 
44  N.  W.  579,  7:  507 

24.  Being  saucy  to  an  officer,  or  daring 
him  to  arrest  after  he  has  threatened  to  ar- 
rest without  warrant  or  any  right  to  do  so, 
will  not  justify  him  in  making  the  arrest. 

Id. 

25.  An  arrest  without  warrant  may  be 
authorized  by  the  legislature  for  other  mis- 
demeanors committed  in  the  presence  of  an 
officer  as  well  as  for  breach  of  the  peace. 
Burroughs  v.  Eastman,  101  Mich.  419,  59  N. 
W.  817,  24:  859 

20.  An  officer  has  no  authority  to  make 
an  arrest  without  a  warrant,  for  a  breach 
of  the  peace  committed  when -he  was  out  of 
sight  on  another  street  150  feet  away,  al- 
though the  disturbance  was  heard  by  him. 
People  V.  Johnson.  86  Mich.  175,  48  N.  W. 
870.  13:  163 

27.  An  officer  cannot,  without  a  warrant, 
arrest  a  person  for  breach  of  the  peace  not 
committed  in  his  presence,  where  the  arrest 
is  not  made  until  the  parties  have  departed 
from  the  vicinity,  and  the  oflicer's  knowl- 
edge is  obtained  onlv  from  statements  of 
bvstandors.  State  v.  Lewis,  50  Ohio  St,  179. 
.3.S  X.  E.  405.  19:  449 

28.  An  officer  cannot,  under  the  laws  of 
Florida,  lawfully  arrest  a  person  without  a 
warrant  for  the  bare  crime  of  carrying  con- 
cealed weapons;  whether  he  knows  it  of  his 
own  knowledge,  or  is  informed  of  it  by 
others,  and  w'hether  it  occurs  in  or  out  of 
his  presence,  unless  it  is  done  in  such  inan- 
ner  or  under  such  circumstances  as.  in  the 
presence  of  the  ofTicer,  to  create,  threaten,  or 
amount  to  a  breach  of  the  peace;  and  even 
in  the  latter  case  the  arrest  would  be  au- 
fliorizcd,  not  from  the  bare  fact  of  carrying 
cnncealed  weapons,  but  because  of  the 
throii toned  or  actual  breach  of  the  i)eace 
accompanving  it.  Eoberson  v.  State.  43 
Fla.  ].')fi,  20  So.  .").35,  ,52:  751 

29.  The  commission  of  a  criminal  assault 
in  the  presence  of  one  known  to  be  a  justice 
of  the  peace  will  justify  an  arrest  by  the 
latter  of  the  ofl'ender  without  warrant  and 
without  givintr  information  of  the  nat\ire  of 
tlie  charge.  State  v.  ]\lcAfee,  107  N.  (\  812. 
12  S.  E.'435.  10:  607 

30.  A  man's  striking  his  wife  with  a  stick 
from  4  to  5  feet  in  length  and  from  1  to  2 
inches  in  thickness,  when  so  near  an  officer 
that  the  latter  can  distinctly  hear  the 
conversation  and  the  sound  made  by  the 
hliiw,  is  a  breach  of  tlie  peace  in  the  presence 


of  the  officer,  within  the  rule  permitting 
an  arrest  without  warrant,  although  the  of- 
ficer could  not  at  the  time  see  the  parties  on 
account  of  darkness.  Id. 

Who  may  make  arrest. 

31.  An  arrest  without  a  warrant  for  ob- 
structing a  public  street  and  interrupting  a- 
military  parade  in  violation  of  CI  a.  Code,  f 
11037/,  may  be  made  by  a  policeman,  al- 
though the  power  of  arrest  in  such  cases  is 
expressly  given  by  that  section  to  the  com- 
manding officers  on  the  parade,  since  their 
authority  is  merely  cumulative.  White  v. 
State,  99  Ga.  16,  26  S.  E.  742,  37:  642 


II.  In  Civil  Cases. 

Privilege  of  Exemption  from,  see  Writ  and 

Process,  II.,  d,  1. 
For  Editorial  Notes,  see  infra,  HI. 

32.  "Injuring  property,"  withiji  the  mean- 
ing of  N.  C.  Code,  §  291,  1i  1,  authorizing  the 
arrest  of  a  defendant  "'where  the  action  is 
for  injuring  or  for  wrongfully  taking,  de- 
taining, or  converting  property,"  means  an 
injury  to  personal  property  only,  and  not 
to  real  property.  Bridgers  v.  Taylor,  102 
N.  C.  86,  8  S.  E.  93.  3:  376 


III.  Editorial  Notes 

§  I.  Generally. 

Validity  of  marriage  under  compulsion  of 
arrest  or  imprisonment. 
43:  816. 

First  and  last  davs  in  computing  time  on. 
49:  223. 

Searching  prisoner  for  evidence  of  guilt. 
9:  323.* 

§  2.  Right  to  make. 

Right  of  private  person  to  make  arrest. 
8:  5.32.* 

Distinction  between  private  person  and 
peace  officer  with  respect 
to  arrest.     8:  532.* 

Right  to  make  arrest  Avithout    a    warrant,, 
generally.     8:  529.* 
For  crime  committed   within  view.     8: 

529  :♦ 
For  breach  of  peace  committed  in  offi- 
cer's  presence.     8:  530.* 
For   misdemeanors.     8:  531.* 

§  3.  How  made,  rights  and  powers  of  person 
making. 

Right  to  use  necessarv  mears  to  effect.  8: 
533.* 

Authority  to  break  in  doors.     8:  533.* 

Right  of  officers  to  call  on  citizens  to  as- 
sist.    8:  534.* 

Killing  by  officer  in  making  arrest.     8:  534.* 
In  cases  of  misdemeanor.     8:  534.* 

What  information  is  an  accused  person  en- 
titled to  at  the  time  of  his. 
arre,st.     42:  673. 
Disclosing  the  cause   of   attempted  ar- 
rest.    42:  673. 
ENhibiting  the  warrant.     42:  677. 


ARSON. 


143 


Right  of  peace  officer  to  enter  dwellings  to 
make  arrests.      16:  500. 
Without  a  warrant.     16:  500. 
With  a  warrant.     16:  501. 
To    recapture    escaping  prisoner.      16: 

501, 
Necessity    of    notification    and    demand 
before     entering.      16:  502. 
Right  of  surety  on  bail  bond  to  pursue  prin- 
cipal   into    another    state 
for  the  purpose  of  arrest- 
ing him.     14:  605. 
§  4,  Liability  for  making. 
Liability  of  judicial  officer  for  issuing  war- 
rant of  arrest.     14:  142. 
Liability  of  an  officer.     51:  193. 

Under  a  warrant  or  writ.     51:  193. 
Valid  on  its  face.     51 :  193. 
WTiere   the   warrant  or   wri^  is  ir- 
regular.    51:  196. 
Where  the   warrant    is    invalid    or 

void.     51:  197. 
Where  tlie  court  has    no    jurisdic- 
tion.    51:  199. 
Where    the    defendant    is    exempt 

from   arrest.     51 :  200. 
Return.     51:201. 

Where  the  warrant  is  not  in  pos- 
session of  the  arresting  of- 
ficer.    51 :  202. 
Without   warrant.     51 :  203. 
For  a  felony.     51 :  203. 
For   a  breach    of    the    peace    "on 

view."      51 :  205. 
For  a  breach  of  the  peace  not  "on 

view."      51 :  206. 
For  breach  of  a  citv  ordinance. 
51 :  207. 
Where  a  statute  authorizes  ar- 
rests on  view.    51:  207. 
Where  an  ordinance  authorizes 
arrests   on   view.     51:209. 
Other   arrests   made    on    view. 

51:  209. 
Arrests     not     made    on     view. 
51:  210. 
For   other   misdemeanors.     51:211. 
Past  offenses.     51:  211. 
For   oflFenses   "on   view"   under 
statutory    authoritv.     51 
212. 
Arrests    in    other   cases.       51 
213. 
Circumstances     attending     arrest.     51 
214. 
Time.     51:214. 
Place  of  arrest.    51:  214. 
Manner  of  making  arrest.     51 :  215. 
Disposition  of  prisoner.     51 :  216. 
I^nrensonable     detention.      51: 

216. 
Place  of  detention  or  delivery. 
51:  218. 
Arrest  of  wrong    party    or    by    wrong 
name.    51:  219. 
Name  unknown.     51 :  219. 
Arresting  wrong  man.     51:219. 
Arresting  right   man  under  wrong 

name.     51:221. 
Arrest      after       judgment       taken 
against  wrong  partv.    51: 
221. 


Joinder.    51 :  222. 

Liability  on  official  bond.     51 :  222. 

Arresting  for  one  offense  and  justifying^ 

for  another.     51:  224. 
Question  of  probable  cause.     51:  225. 

Liability  of  municipal  corporation  for  false 
imprisonment  and  unlaw- 
ful arrest.     44:  795. 

Municipal  liability  for  arrest  and  imprison- 
ment under  invalid  ordi- 
nance.    47:  593. 

§  5.  Resisting;  escape. 

Right  to  resist  illegal  arrest.     8:  535.* 

Homicide  in  resisting.     66:  353. 

Evidence  of  crime  committed  in  resisting- 
'  arrest  after  commission  of 
crime  charged.    62:  338. 

§  6.  In  civil  action. 

As  ground  of  action  for  malicious  prosecu- 
tion.    13:  60.» 

Effect  on  suit  of  discharge  from  wrongful 
arrest.     19:  560. 

Right  to,  in  breach  of  promise  case.  59: 
957. 

§  7.  In  extradition  proceedings. 

Complaint  for  warrant  of,  in  extradition 
proceedings.      1 :  372.* 

Without  warrant,  awaiting  arrival  of  extra- 
dition papers.     26:  34. 

Warrant  of,  in  extradition  proceedings.  1: 
372.* 


ARSON. 

Solicitation  to  Commit,  see  Criminal  Law, 

45. 
Evidence  as  to,  see  Evidence,  1597,  2134. 
Indictment  for,  see  Indictment,  etc.,  43. 

1.  Setting  fire  to  one's  own  dwelling 
house  is  not  arson,  either  at  common  law  or 
imder  a  statute  making  it  arson  to  set  fire 
to  "any  house  of  whatever  name  or  kind."" 
altliough  the  property  is  insured  so  that  the 
loss  mav  fall  on  the  insurer.  State  v.  Sar- 
vis,  45  S.  C.  668,  24  S.  E.  53,  32:  647 

2.  Procuring  the  burning  of  one's  dwell- 
ing house  with  intent  to  defraud  an  insur- 
ance company  is  not  arson  in  the  absence  of 
a  statute  making  it  such.  Id. 

3.  A  man  is  not  guilty  of  arson  in  burn- 
ing his  own  house,  unless  it  or  some  part  of 
it  was  in  the  possession  of  another,  under 
Cal.  Pen.  Code,  §  447,  defining  arson  as  the 
wilful  and  malicious  burning  of  a  building 
with  intent  to  destroy  it.  and  §  4.52,  declar- 
ing that  it  is  not  necessary  that  a  person 
other  tlian  the  accused  should  have  had' 
ownership  in  the  building,  but  it  is  sufficient 
that  another  was  rightfully  in  possession  of 
or  actually  occupying  the  building  or  ai^v 
part  thereof.  People  v.  De  Winton.  113  Cal. 
403.  45  Pac.  708.  .33:  .374 

Editorial  Notes. 

Solicitation  to.     25:  437. 

Criminal  liability  of  children   for.     36:  201- 
Arson  in  setting  fire  to  one's  own  buildings 
.32:  647. 
At  common  law.     32:  647. 


144 


ART— ASSAULT  AND   BATTERY,  I. 


Under  statute.    32:  647. 
Generally.    32:  647. 
To  injure  insurer.     32:  648. 
Cruel  and  unusual  punishment  for.    35:  569. 
Evidence  of  other  crimes  in  prosecution  for. 
62:  208,  238,  289,  319,  325. 
Proof  of  corpus  delicti  in.    68:  41,  55,  71. 


♦  •» 


ART. 

Gift  for,  see  Charities,  22,  78,  79,  89,  124. 

♦  •» 

ARTESIAN  WELL. 

Prohibiting    Waste    of    Water    from,     see 

Constitutional  Law,  987. 
Judicial  Notice  of,  see  Evidence,  61. 
Disposal  of  Water  from,  see    Waters,    295, 

296. 
Watercourses   Supplying,   see  Waters,   434, 

444,  446,  449,  450. 


ARTICLES  OF  INC0RP0RATi6n. 

See  Corporations,  III. 

♦-•-♦ 

ARTIFICIAL  POND. 
As  Boundary,  see  Boundaries,  59.  • 


ASCERTAIN. 

Meaning  of  Term,  see  Corporations,  550. 


ASHES. 

Liability  for  Injury  by  Hot  Ashes,  see  Negli- 
gence, 122. 


ASPHYXIA. 


Death  of  Insured  from,  see  Insurance,  1021, 
1027,  1033-1037. 


ASPORTATION. 

Editorial  Notes. 


What  law  defines  larceny  for  purposes  of  a 
,  statute    against    bringing 

stolen    property    into    the 
state.       15:722. 


ASSASSINATION. 
Of  Judge,  see  Marshal,  1. 


ASSAULT  AND  BATTERY. 

I.  In  General. 
II.  Justification;    Defenses. 
III.  Editorial  Notes. 

Survivability  of  Action  for,  see  Abatement 
and  Revival,  24. 

Liability  to  Arrest  for,  see  Arrest,  29,  30. 

"By  Military  Commander,  see  Action  or  Suit, 
10. 

On  Passenger,  see  Carriers,  II.  a,  3,  c;  Dam- 
ages, 72-75,  212,  213. 

Jurisdiction  of  Prosecution  for,  see  Courts, 
51. 

Conviction  as  Bar  to  Subsequent  Prose- 
cution, see  Criminal  Law,  165. 

With  Intent  to  Commit  Robbery,  see  Crim- 
inal Law,  39. 

With  Intent  to  Rape,  see  Rape. 

Damages  for,  see  Damages,  44-46,  72-75, 
212,  213,  270-273,  579,  647,  683. 

Evidence  as  to,  see  Evidence,  2133. 

In  Making  Arrest,  see  False  Imprisonment, 
25;  Municipal  Corporations,  508. 

Homicide  in  Resisting,  see  Homicide,  III.  b. 

Efi"ect  of,  on  Right  to  Subsequently  Kill  in 
Self-Defense,  see  Homicide,  41-48. 

Indictment  for,  see  Indictment,  etc.,  129. 

Hotel  Keeper's  Liability  for  Assault  by  Em- 
ployees on  Guest,  see  Innkeepers,  26,  30. 

Protection  of  Judge  against,  see  Judges,  3. 

On  Servant,  Master's  Right  of  Action  for, 
see  Master  and  Servant,  3. 

By  Licensee,  see  Master  and  Servant,  10. 

Master's  Liability  for,  see  Master  and  Serv- 
ant, 668,  677. 

Father's  Duty  to  Furnish  Coimsel  Fees  to 
Prosecute  Action  for,  see  Parent  and 
Child,  8. 

Allegations  in  Action  for,  see  Pleading,  510, 
511,  602. 

On  Seamen,  see  Seamen,  2. 

Counterclaim  for  Injuries  Received,  see  Set- 
off and  Counterclaim,  12. 

Right  to  Open  and  Close  in  Action  for,  see 
Trial,  44. 

Question  for  Jury  as  to,  see  Trial,  194,  195. 

Direction  of  Verdict  in  Action  for,  see 
Trial,  551. 


I.  In  General. 

1.  There  may  be  an  actionable  assault 
and  battery  without  any  actual  or  specific 
intent  to  commit  that  offense.  Mercer  v. 
Corbin,  117  Ind.  450,  20  N.  E.  132.        3:  221 

2.  Liability  to  a  civil  action  for  assault 
is  incurred  by  one  who  goes  to  the  home  of 
another  and  orders  the  latter's  wife  and 
children  to  move  out,  states  his  intention 
to  burn  the  building ,  pours  oil  on  it, 
scratches  a  match  for  the  seeming  purpose 
of  setting  fire  to  the  house,  points  a  gun  at 
the  woman,  and  tells  her  that  if  she  does 
not  leave  the  place  he  will  shoot  her  and 
the  children.  Kline  v.  Kline,  158  Ind.  602, 
64  N.  E.  9,  58:  397 

3.  Merely  pushing  off  the  horses  of  an- 
other from  grass  which  one  is  entitled  to  cut 


ASSAULT  AND  BATTERY,  II. 


145 


in  a  highway,  where  the  other  is  wantonly 
endeavoring  to  spoil  the  grass,  and  then  de- 
fending against  the  latter's  attack,  do  not 
make  one  guilty  of  assault  and  battery. 
People  V.  Foss,  80  Mch.  559,  45  N.  W.  480, 

8:472 

4.  The  raising  of  a  stick  which  is  frona 
4  to  5  feet  long  and  from  1  to  2  inches  in 
thickness,  by  one  whom  an  officer  is  at- 
tempting to  arrest,  over  the  latter's  head,  so 
as  to  cause  him  to  step  aside  to  avoid  an 
apprehended  blow,  constitutes  an  assault 
upon  him.  State  v.  McAfee,  107  N.  C.  812, 
12  S.  E.  435,  10:  607 

5.  The  marshal  and  policemen  of  a  city, 
and  any  persons  aiding  and  abetting  them, 
are  liable  in  damages  for  unnecessary  cruel- 
ties and  indignities  inflicted  by  the^n  on 
prisoners  in  their  charge.  Topeka  v.  Bout- 
well,  53  Kan.  20,  So  Pac.  819,  27:  593 

6.  A  kick  upon  the  leg,  given  by  one 
pupil  to  another  in  school  in  violation  of 
the  order  and  decorum  of  the  school  while  in 
session,  being  unlawful,  renders  the  one  giv- 
ing it  liable  for  damages  caused  thereby,  re- 
gardless of  any  intention  to  inflict  an  in- 
jury. Vosburg  V.  Putney,  80  Wis.  523,  50 
N.  W.  403,  14:  226 

7.  The  fact  that  a  student  acts  merely  in 
sport,  and  that  he  is  only  the  foremost  of 
a  line  of  students  to  push  the  one  before 
him,  when  making  a  "rush"  upon  a  fellow 
student,  giving  him  an  unexpected  and 
violent  push  between  the  shoulders,  will  not 
prevent  the  act  from  being  an  unlawful  as- 
sault creating  a  liability  for  personal  in- 
juries thereby  caused  to  the  person  as- 
saulted. Markley  v.  Whitman,  95  Mich.  236, 
54N.  W.  763,       '  20:55 

8.  Both  the  unlawful  attempt  and  the 
present  ability  necessary  to  constitute  an 
assault  are  present  where  a  person  fires  his 
pistol  at  a  hole  in  the  roof  through  which 
the  bullet  will  pierce,  which  was  made  by 
a  policeman  for  the  purpose  of  watching  the 
inside  of  the  building,  believing  that  the 
policeman  is  then  present,  although  the 
latter  is  saved  from  harm  by  the  fact  that 
at  that  instant  he  is  on  another  part  of  the 
roof.  People  v.  Lee  Kong,  95  Cal.  666,  30 
Pac.  800,  17 :  626 

9.  An  assault  is  involved  in  the  unlawful 
infliction  of  an  injury  by  administering  poi- 
son.   Carr  V.  State,  135  Ind.  1,  34  N.  E.  533, 

20:  863 
By  bicyclist. 

10.  A  person  riding  a  bicycle,  who  reck- 
lessly nins  against  a  person  standing  with 
his  back  partially  toward  him,  when  he  can 
avoid  doing  so  by  the  exercise  of  the  slight- 
est care,  is  guilty  of  an  assault  and  battery. 
Mercer  v.  Corbin,  117  Ind.  450,  20  N.  E.  132, 

3:  221 
By  druggist. 

11.  A  druggist  who  drops  croton  oil  on 
candy  for  a  customer  in  quantity  sufficient 
to  produce  serious  injury  if  taken  into  a 
person's  system,  knowing  or  reasonably 
believing  that  it  is  intended  for  a  practical 
joke  on  someone,  and  not  for  medicinal 
purposes,  will  be  guilty  of  assault  upon  one 
injured   by   its  administration  bv    way    of 

LJl.A.  Dig.— 10. 


joke.     State  v.  Monroe,   121   N.  C.  677,  28 
S.  E.  547,  ■  43:  861 

Aggravated;  intent  to  kill. 
In  Resisting  Arrest,  Evidence  as  to,  see  Evi- 
dence, 2137.. 
For  Editorial  Notes,  see  infra.  III.  3. 

12.  Specific  intent  to  kill  is  an  essential 
element  of  an  assault  with  intent  to  kill, 
even  when  the  assault  was  by  shooting  at 
an  officer  in  resisting  an  authorized  arrest. 
State  V.  Taylor,  70  Vt.  1,  39  Atl.  447, 

42:  673 

13.  Assault  with  intent  to  murder,  by 
firing  on  an  officer  when  attempting  to 
escape  arrest,  is  not  reduced  to  an  assault 
with  intent  to  kill  by  the  fact  that  the  of- 
ficer, when  asked  if  he  had  any  papers, 
drew  his  revolver,  saying  that  was  all  the 
papers  he  needed,  but  at  once  returned  it  to 
his  pocket.  Id. 

14.  A  common  purpose  of  several  persons 
to  resist  arrest  will  not  make  them  all  lia- 
ble for  assault  with  intent  to  kill,  when  one 
shoots  at  an  officer  in  attempting  to  escape, 
unless  they  had  a  common  understanding 
that  they  would  do  whatever  might  be 
necessary  to  avoid  the  arrest.  Id. 

15.  An. assault  with  a  deadly  weapon 
with  intent  to  kill  is  sufficiently  proved  by 
evidence  that  defendant,  after  some  contro- 
versy, had  made  a  threat  against  the  prose- 
cuting witness  and  fired  a  pistol  after  her, 
sending  a  ball  through  her  clothing.  State 
v.  Kodat,  158  Mo.  125,  59  So.  73,        51:509 


n.  Justification;  Defenses. 

Consent  to,  see  Abortion,  2. 

To  Prevent  Escape  of  Person  Arrested,  see 
Arrest,  9. 

For  Assault  on  Passenger,  see  Carriers,  170- 
172. 

Good  Faith  in  Making  Complaint  for  Ar- 
rest, see  False  Imprisonment,  12. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

16.  Forcing  a  passage  to  the  upper  rooms 
of  a  hotel  against  the  remonstrance  and  re- 
sistance of  the  landlord  and  his  wife  and 
servants,  thereby  injuring  the  landlcfrd's 
wife,  on  a  mere  suspicion  that  the  law  in 
respect  to  the  sale  of  intoxicating  liquors 
is  being  violated  there,  but  without  any 
knowledge  of  the  fact  and  without  any 
warrant  for  the  arrest  of  any  person,  can- 
not be  justified  under  the  common-law  pow- 
ers and  authorities  of  constables,  or  other 
peace  officers,  or  by  the  statutory  authority 
of  marshals  of  law-and-order  societies  in 
New  Jersey,  to  arrest  persons  who  have  vio- 
lated any  law,  without  warrant.  Delafoyle 
V.  State  (N.  J.  Err.  &  App.)  54  N.  J.  L.  381, 
23  Atl.  557,  16:  500 

17.  A  license  to  commit  an  assault  and 
battery  which  constitutes  a  misdemeanor  is 
no  defense  to  an  action  therefor.  Willey 
V.  Carpenter,  64  Vt.  212,  23  Atl.  630,  15:  853 
Mistake  in  identity. 

For  Editorial  Notes,  ^ee  infra,  III.  §  2. 

18.  To  excuse  a  person  for  assaulting 
another  under  the  belief  that  hf  is  a  third 


146 


ASSAULT  AND   BATTERY,  II. 


person,  upon  whom  an  assault  would  be 
justified,  he  must  exercise  the  highest  de- 
gree of  care  practicable  under  the  circum- 
stances to  ascertain  whether  or  not  the  per- 
son whom  he  is  about  to  strike  is  in  fact 
the  one  whom  he  believes  him  to  be.  Crab- 
tree  V.  Dawson.  26  Ky.  L.  Rep.  1046,  83  S. 
W.  557,  67:565 

19.  A  property  owner,  who,  having  re- 
moved from  his  premises  an  intoxicated 
person,  strikes  and  injures  a  stranger  who 
is  attempting  to  enter  the  premises,  under 
the  belief,  after  exercising  the  highest  care 
practicable  under  the  circumstances  to  as- 
certain the  facts,  that  it  is  the  person  whom 
h«  has  just  ejected  returning,  is  excused 
from  liability  for  the  assault  on  the  ground 
of  self-defense  and  apparent  necessity,  if  be- 
lief in  the  identity  of  the  persons  is  based 
on  reasonable  grounds,  and,  if,  in  the  exer- 
cise of  a  reasonable  judgment,  he  further  be- 
lieves that  it  is  necessary  to  strike  the  eject- 
ed person  to  defend  himself,  and  uses  no 
more  force  than  is,  or  appears  to  be,  nec- 
essary for  the  purpose.  Id. 
Opprobrious  words. 

20.  Mere  words,  however  gross  and  abu- 
sive, and  although  spoken  for  the  purpose  of 
provoking  an  assault,  are  po  defense  to  an 
action  for  the  assault.  Willey  v.  Carpen- 
ter, 64  Vt.  212,  23  Atl.  630,  15:  853 
Goldsmith  v.  Joy,  61  Vt.  488,  17  Atl,  1010, 

4:  500 

21.  Opprobrious  words  and  abusive  lan- 
guage cannot  be  considered  by  the  jury  in 
a  civil  action  for  assault  and  battery  in  jus- 
tification thereof,  but  only  in  mitigation  of 
damages,  under  Ga.  Pen.  Code,  §  103,  pro- 
viding that  on  the  trial  of  an  indictment 
for  an  assault  or  assault  and  battery  de- 
fendant may  give  in  evidence  any  oppro- 
brious words  or  abusive  language  used  by 
the  person  assaulted,  and  the  jury  shall  de- 
termine whether  they  amount  to  a  justifi- 
cation, since  this  provision  is  not  applica- 
ble to  civil  cases.  Berkner  v.  Dannenberg, 
116  Ga.  954,  43  S.  E.  463,  60:  559 
Unlawful  arrest. 

22.  An  assault  upon  an  officer  with  a 
deadly  weapon  by  one  upon  whom  he  is  at- 
tempting to  serve  process  is  not  excused  by 
the  fact  that  the  process  is  not  fair  on  its 
face.  People  v.  Bernard,  125  Mich.  550,  84 
N.  W.  1092,  65:  559 

23.  One  is  not  justified  in  shooting  an  of- 
ficer who  merely  announces  the  intention  to 
arrest  him,  although  the  character  of  the 
officer  does  not  appear,  and  the  arrest  would 
be  unwarranted.  Keadv  v.  People,  32  Colo. 
57,  74  Pac.  892,  '  66:  353 
Defense  of  property  or  dwelling. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

24.  One  from  whom  property  has  been 
wrongfully  t<akon  may  regain  his  momentar- 
ily interrupted  possession  thereof  by  the 
use  of  reasonable  force  short  of  woxinding 
or  the  employment  of  a  dangerous  weapon, 
especially  after  making  demand  for  its  re- 
turn. Com.  V.  Donahue,  148  Mass.  529,  20 
N.  E.   171,  2:  623 

25.  An  assault  on  an  employee  to  recover 
money  voluntarily  given  him  to  pay  other 


help  is  not  justified  by  his  refusal  to  use 
it  as  directed,  and  his  claim  of  right  to  re- 
tain it  in  order  to  make  good  a  deduction 
from  his  wages,  which  he  claims  to  have 
been  unlawful.  Kirby  v.  Foster,  17  R.  L 
437,  22  Atl,   1111,  14:  317 

26.  An  assault  on  an  officer  in  charge  of 
a  pound,  who  forbids  a  person  from  tearing 
down  the  pound  to  regain  possession  of  his 
hogs  which  are  therein,  and  threatens  to  ar- 
rest him  if  he  does  not  desist,  is  not  justi- 
fied by  the  fact  that  the  hogs  were  taken 
and  impounded  under  an  illegal  ordinance. 
State  V,  Black,  109  N.  C.  856,  13  S.  E,  877, 

14:  205 

27.  A  small  boat  used  for  the  common 
carriage  of  passengers  for  hire,  and  having 
neither  sleeping  apartments  nor  places  for 
meals,  is  not  within  the  rule  justifying  the 
forcible  resistance  of  an  attempt  to  enter 
a  dwelling  house,  although  a  seat  in  the 
boat  is  used  for  a  sleeping  place  by  the  per- 
son in  possession  of  the  boat.  People  v. 
Bernard,  125  Mich,  550,  84  N.  W.  1092, 

65:  559 

28.  A  person's  dwelling  house  is  a  castle 
of  defense  for  himself  and  his  family;  and 
an  assault  upon  it,  with  intent  to  injure 
him  or  any  of  them,  may  be  met  in  the  same 
way  as  an  assault  upon  himself  or  any  of 
them;  and  he  may  meet  the  assailant  at 
the  threshold  and  use  the  force  necessary 
for  his  or  their  protection  against  the 
threatened  invasion  and  harm,  Wilson  v. 
State,  30  Fla.  234,  11  So.  556,  17:  654 

29.  An  innkeeper  may  be  justified,  on  a 
prosecution  for  assault  and  battery,  in  re- 
moving from  his  hotel  a  person  who  was  not 
there  as  a  guest  or  on  business  with  guests, 
if  he  did  not  use  excessive  force,  and  first 
requested  him  to  depart.  State  v.  Steele, 
106  N.  C.  766,  11  S,  E.  478,  8:  516 
Self-defense. 

See  also  supra,  18,  19. 

For  Editorial  Notes,  see  infra,  m.  §  4, 

30.  One  upon  whom  an  assault  is  com- 
mitted may  become  liable  for  a  battery 
upon  the  aggressor,  if  he  uses  more  than 
necessary  force  in  repelling  the  assault. 
Gutzman  v.  Clancy,  114  Wis.  589,  90  N.  W. 
1081,  '  58:  744 

31.  When  one  violently  assaults  another 
without  cause,  the  fact  that  the  other  goes 
beyond  the  limit  of  self-defense,  and  admin- 
isters a  chastisement  in  proportion  to  the 
provocation,  does  not  make  him  guilty  of  an 
assault.  People  v.  Pearl,  76  Mich,  207,  42 
N.  W.   1109,  4:  709 

32.  One  assaulted  by  citizens  of  a  town 
for  the  purpose  of  compelling  him  to  leave 
it  is  not  bound  to  retreat  to  avoid  a  conflict 
in  order  to  protect  himself  from  liability  to 
prosecution  for  assault,  but  he  may  repel 
force  with  force  so  long  as  he  uses  only 
such  force  as  is  necessary,  short  of  killing 
his  assailants,  even  though  he  provoked  the 
attack  by  drunkenness  and  disorderly  con- 
duct. State  V,  Evenson,  122  Iowa,  88,  97 
N.  W.  979,  64:  77 
Defense  of  others. 

33.  A  man  is  not  bound  to  notify  a  char- 
ivari party  that  their  shooting,  noise,  and 


ASSAULT  AND  BATTERY,  III— ASSETS. 


147 


tumult  by  making  all  kinds  of  hideous 
noises  are  causing  terror  and  fright  to  his 
wiie  and  children  and  endangering  their 
lives,  before  taking  effectual  means,  by 
shooting  or  otherwise,  to  drive  them  away, 
where  such  party  has  returned  for  the 
third  night  and  on  the  first  night  he  had 
warned  them  to  desist.  Higgins  v.  Mina- 
ghan,  78  Wis.  602,  47  N.  W.  941,  il:  138 
Criminal  intimacy  with  wife.    » 

34.  A  husband  may  attack  for  intimacy 
with  his  wife  in  his  presence,  raising  a 
well-founded  belief  that  the  criminal  act 
is  just  over  or  about  to  begin;  and  the  adul- 
terer, though  in  danger,  has  no  right  to  de- 
fend himself  by  using  a  deadly  weapon. 
Drysdale  v.  State,  83  Ga.  744,  10  S.  E.  358, 

\6:  424 


in.  Editorial  Notes. 

§  I,  Generally. 

Intent  as  an  element  of  simple  assault  or 
.  assault  and  battery.     14: 
226. 

Accidental  or  reckless  injuries.     14:  227. 

Solicitation  as  assault.     25:  434. 

Solicitation  to  commit.     25:  438. 

Cruel  and  unusual  punishment  for.     35:569. 

Evidence  of  other  crimes  in  prosecution  for. 
62:  207,  228,  278,  313,  314. 

Homicide  in  commission  of.     63:  375,  391. 

§  2.  Excuse;  justification;  defense. 

Consent    as    justification    for    assault.     15: 
853. 
As  to  civil  liability.     15:  853. 
As  to,  criminal  liability.     15:  854. 

Mistaken  identity  as  justification  for.  67: 
565. 

What   intoxication   will   excuse.     36:  477. 

Assault  in  defending  rights  in  land.  8: 
472.* 

Assault  in  recapture  of  property.     14:317. 

§  3.  Criminal  responsibility  of  children  for. 

Assault  and  battery  upon  female.     36:  206. 

Indecent  assault.     36:205. 

Common  assault  upon  female.     36:  205. 

Assault  with  intent  to  rape.     36:  204,  205. 

Assault  with  intent  to  inflict  great  bodily 
harm.     36:  201. 

§  4.  Resisting  assault. 

Homicide  in   resisting.     67:532,  541. 

Degree  of  force  that  may  be  used  in  de- 
fense of  person  or  prop- 
erty.    2:  624;*  6:424.* 

§  5.  Civil  liability. 

When  civil  action  for  assault  lies.    9:  445.* 

Effect  upon  civil  liability,  of  consent  to  as- 
sault.    15:  853. 

Carrier's  duty  to  protect  passenger  from 
assault  by  fellow  passen- 
ger.    16:  627. 

Liability  of  carrier  for  assault  upon  passen- 
ger by  strikers,  mob,  or 
third   persons.     65:  713. 

Liability  of  master  for  assault  by  servant. 
14:  737. 

Liability  of  servant  or  agent  for,  when  act- 
ing under  orders.    50:  646. 


Effect  of  admission  to  change  burden  of 
proof  and  right  to  open 
and  close  in  action  for  as- 
sault.    61 :  539,  548,  558. 

Right  to  plead  inconsistent  defenses  in  ac- 
tions for  assault.     48:  197. 

Damages  in  civil  action  for.     9:445.* 

Inadequacy  of  damages  as  ground  for  set- 
ting aside  verdict.     47:  44. 


ASSEMBLY. 


Apportionment  of  Districts  of,  see  Election 

Districts. 
Denial  of  Eight  of,  see  Elections,  318. 


ASSENT. 

By  Corporate  Directors  to  Unlawful  Acts, 

see   Corporations,   289-292. 
Estoppel  by,  see  Estoppel,  III.  f. 
Presumption   and  Burden   of  Proof   as  to^ 

see  Evidence,  11.  e. 


ASSESSMENT. 


Against  Members  of  Association,  see  In- 
junction, 239-241;  Receivers,  77. 

By  Loan  Association  to  Meet  Losses,  see 
Building  and  Loan  Associations,  78-82. 

Rights  of  Rirchaser  of  Stock  Sold  for,  see 
Corporations,  465. 

On  Corporate  Stock,  see  Corporations,  535, 
Vin.  §§  36,  37. 

On  Winding  up  of  Corporation,  see  Corpora- 
tions, 594-599,  603. 

As  Encumbrance,  see  Covenant,  21-24. 

Of  Damages,  see  Damages,  IV. 

For  Drains  and  Sewers,  see  Drains  and 
Sewers,  IH.;  IV. 

Injunction  against,  see  Injunction,  I.  k. 

Forfeiture  of  Benefit  Certificate  for  Nonpay- 
ment of,  see  Insurance,  III.  f,  2. 

For  Insurance,  see  Insurance,  in.  h;  IX. 
§  35. 

Action  against  Assessment  Company,  see 
Insurance,  VI.  h,  2. 

Of  Punishment  by  Jury,  see  Jury,  37,  38, 
66,  67. 

Pleading  as  to,  see  Pleading,  39,  286,  287, 
298. 

For  Public  Improvements,  see  Public  Im- 
provements, m.;  V.  §§  4-12. 

Of  Tax,  see  Taxes,  HI.;  V.  d. 


ASSETS. 

Life  Insurance  Policy  as,  see  Bankruptcy, 
27,  28. 

Of  Corporation,  Division  among  Stockhold- 
ers, see  Corporations,  471,  472,  485. 

Of  Decedent's  Estate,  see  Executors  and  Ad- 
ministrators, II.  c. 

Of  Insurance  Company,  see  Insurance,  73-85. 


148 


ASSIGNATION;  ASSIGNMENT,  I. 


Summary  Proceedings  by  Receiver  to  Re- 
cover, see  Receivers,  122,  123. 


ASSIGNATION. 


Tenant's  Liability  for  Using  Rooms  for,  see 
Case,  20. 


ASSIGNMENT. 


1.  What  Assignable;    Validity. 
II.  Equitable   Assignment;    Orders. 
III.  Rights  and  Liabilities  of  Assignees. 
rV.  Editorial  Notes. 

Of  Negotiable  Paper,  see  Bills  and  Notes, 
IIL;    v.;   VIL   §§  13-24. 

Of  Bill  of  Lading,  see  B^lls  of  Lading. 

Of  Chattel  Mortgage,  see  Chattel  Mortgage, 
V. 

Of  Interest  in  Copyright,  see  Copyright, 
21,  22. 

Of  Land  Contract,  see  Contracts,  350a,  827. 

Of   Expectancy,   see   Contracts,    432. 

Of  Corporate  Franchise,  see  Corporations, 
II. 

Of  Right  to  Use  Corporate  Name,  see  Cor- 
porations, 42,  43. 

Of  Damages  from  Conspiracy,  see  Corpora- 
tions, 130. 

Of  Corporate  Stock,  see  Corporations,  V.  c. 

Of  Overdue  Corporate  Notes,  see  Corpora- 
tions, 617. 

Of  Coupon,  see  Coupons,  4-7. 

Of  Deed,  see  Deeds,  55. 

Of  Dower,  see  Dower,  57-63. 

Of  Land  Warrant,  Presumption  as  to,  see 
Evidence,  689. 

Of  Ferry  Lease,  see  Ferry,  12,  13. 

Of  Unearned  Salary,  Forgery  of,  see  For- 
gery. 16. 

Of  Unpaid  Stock,  see  Garnishment,  3. 

Of  Homestead,  see  Homestead,  47. 

Of  Insurance  Policy,  see  Insurance,  IV.; 
VIII.  §§  37-40. 

Of  Claim  on  Employer's  Liability  Policy, 
see  Insurance,  1345,  1346. 

Of  Judges,  see  Judges,  IV. 

Of  Judgment,  see  Judgment,  V.;  VIII.  §  30. 

Of  Lease,  see  Landlord  and  Tenant,  II.  e; 
IV.  §  4. 

Of  Mortgage,  see  Mortgage,  IV.;  VIII.  §  13. 

Of  Street  Railway  Franchise,  see  Street 
Railways,  50-60. 

Of  Telephone  Franchise,  see  Telephones,  7. 

Of  Trademark,  see  Trademark,  IIL 

Of  Tradename,  see  Tradename,  13,  16,  21. 

Of  Usurious  Mortgage,  see  Usury,  47. 

Of  Purchase  Money  Notes,  see  Vendor  and 
Purchaser,  60,  61,  81-83,  85. 

To  Evade  Exemption  Laws,  Prohibition 
against,  as  Impairing  Obligation  of  Con- 
tract, see  Constitutional  Law,  1210. 

Power  of  Corporation  to  Take,  see  Corpora- 
tions,  130,  180. 

Effect  of,  on  Federal  Jurisdiction,  see  Courts, 
345-345b. 


Effect  of,  on  Right  of  Action,  see  Parties, 
L  a,  3. 

By  Indian,  see  Courts,  443. 

Right  of  Assignor  on  Covenant  of  War- 
ranty, see  Covenant,  62. 

Estoppel  as  to,  see  Estoppel,  114,  131,  159. 

Admissibility  of,  see  Evidence,  823. 

Unknown  Assigns  as  Parties  Defendant, 
see  Parties,  181. 

As  to  Composition  with  Creditors,  see  Com- 
position with  Creditors. 

As  to  Pledge,  see  Pledge  and  Collateral  Se- 
curity. 

As  Affecting  Set-Off,  see  Set-Off  and  Coun- 
terclaim, 25,  26,  35-43. 

As  Declaration  of  Trust,  see  Trusts,  7. 


I.  What  Assignable;   Validity. 

Stockholder's  Right  to  Have  Voidable  Trans- 
action Set  Aside,  see  Corporations,  492. 

Assignment  to  Defraud  Creditors,  see* 
Fraudulent  Conveyances,  5. 

Right  of  Re-entry  for  Condition  Broken, 
see  Real  Property,  27. 

See  also  infra,  34;  License,  1. 

For  Editorial  Notes,  see  infra,  TV.  §  2. 

1.  An  assignment  of  a  chose  in  action, 
void  at  the  time  of  its  execution,  cannot 
become  validated  by  the  removal  of  the 
cause  making  it  void  ipso  facto.  Brick  v. 
Campbell,  122  N.  Y.  337,  25  N.  E.  493, 

iO:  259 

2.  The  fact  that  a  claim  is  assigned  for 
collection  does  not  destroy  its  validity  or 
deter  the  holder  from  suing  in  his  own 
name.  Falconio  v.  Larsen,  31  Or.  137,  48 
Pac.  703,  37 :  254 

3.  The  assignment  of  a  bare  right  to  file  a 
bill  in  equity  for  a  fraud  committed  upon 
the  assignor  will  be  held  void  as  against 
public  policy  and  as  savoring  of  the  charac- 
ter of  maintenance.  Gruber  v.  Baker,  20 
Ne^.  453,  23  Pac.  858,  9:  302 
What  assignable  generally. 

Railroad  Ticket,  see  Carriers,  616-620. 

Claim  against  Government,  see  Attorneys, 
82,  83;  Claims,  6-10. 

Covenant  of  Seisin,  see  Covenant,  59. 

Claim  for  Alimony,  see  Divorce  and  Separa- 
tion, 64. 

Expectancy,  see  Expectancy. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

4.  A  cause  of  action  which  will  survive 
is  assignable.  Lehmann  v.  Deuster,  95  Wis. 
185,  70  N.  W.   170,  37:  333 

5.  A  right  of  action  for  personal  injuries 
is  not  assignable.  North  Chicago  Street 
R.  Co.  V.  Ackley,  171  111.  100,  49  N.  E.  222, 

44:  177 

6.  A  cause  of  action  for  personal  injuries 
resulting  from  negligence  is  assignable  un- 
der Wis.  Rev.  Stat.  §  4253,  as  amended  by 
Wis.  Laws  1887,  chap.  280,  which  provides 
for  the  survival  of  actions  for  assault  and 
battery,  false  imprisonment,  "or  other  dam- 
ages to  the  person."  Lehmann  v.  Deuster, 
95  Wis.  185,  70  N.  W.  170,  37:  333 

7.  The  fact  that  an  assignor  and  assign- 


ASSIGNMENT,  I. 


149 


ee  are  tenants  in  common  of  the  property 
in  question  does  not  change  the  rule  pro- 
hibiting the  assignment  of  a  right  of  action 
to  set  aside  a  conveyance  for  fraud.  Gruber 
V.  Baker,  20  Nev.  453,  23  Pac.  858,       9:  302 

8.  A  right  to  recover  damages  for  false 
imprisonment  is  a  mere  personal  right,  and 
not  assignable,  even  after  verdict  but  before 
judgment.  Hunt  v.  Conrad,  47  Minn.  557, 
50  N.  W.  614,  14:  512 

9.  A  right  of  action  for  the  severance 
of  gravel  from  the  realty  and  its  wrongful 
conversion  is  assignable.  Rogers  v.  Port- 
land &  B.  Street  Railway,  100  Me.  86,  60 
Atl.  713,  70:  574 

10.  The  right  of  a  purchaser  at  a  wrong- 
ful, unlawful,  or  erroneous  tax  sale  to  have 
his  money  refunded  under  the  provisions 
of  Dak.  Comp.  Laws,  §  1629,  is  assignable 
so  as  to  sustain  an  action,  by  the  assignee 
in  case  of  refusal  to  refund  the  money. 
Erickson  v.  Brookings  County,  3  S.  D.  434, 
53  N.  W.  857,  18:  347 

11.  An  assignment  may  be  made  of  the 
income  arising  out  of  personal  property 
held  in  trust  for  the  support  of  a  person 
during  life,  where  there  is  no  statute  re- 
stricting it  and  no  restriction  on  the  assign- 
ment in  the  will  creating  the  trust, — espe- 
cially where  the  assignment  is  to  the  wife 
of  the  assignor,  on  her  agreement  to  main- 
tain and  educate  their  children.  Lamber- 
ton  v.  Pereles,  87  Wis.  449,  58  N.  W.  776, 

23:  824 

12.  A  claim  for  damages  growing  out  of 
a  conspiracy  to  defraud  is  not  assignable. 
John  V.  Farwell  Co.  v.  Josephson,  96  Wis. 
10,  70  N.  W.  289,  71  N.  W.  109,  37:  138 
Assignment,  by  Indian. 

13.  An  assignment  by  an  Indian  of  a 
right  of  action  for  the  destruction  of  his 
personal  property  is  not  invalid.  Missouri 
P.  R.  Co.  v.  Cullers,  81  Tex.  382,  17  S.  W. 
19,  13:  542 
Right  of  action  for  wages  against  stock- 
holders of  employer. 

14.  A  laborer's  right  to  recover  wages  due 
him  by  a  corporation,  from  its  stockholders 
personally,  under  Wis.  Rev.  Stat.  §  1769,  is 
assignable.  Day  v.  Vinson,  78  Wis.  198, 
47  N.  W.  269,  10:  205 
Preference  of  claim  for  wages. 

15.  Assignees  of  employees  may  have 
their  priority  of  payment  out  of  the  assets 
of  a  receiver.  Drennen  v.  Mercantile  Trust 
&  D.  Co.  115  Ala.  592,  23  So.  164,      39:  623 

16.  The  preference  of  claims  for  wages, 
given  by  Or.  act  February  20,  1891,  in  case 
of  an  assignment  for  creditors,  is  an  inci- 
dent of  the  debt  or  claim  for  wages,  which 
is  assignable  therewith  so  as  to  entitle  the 
assignee  to  the  benefit  thereof;  and  he  may 
prosecute  the  claim  in  his  own  name.  Fal- 
conio  V.  Larsen,  31  Or.  137,  48  Pac.  703, 

37:254 
Future  wages. 

Effect  of  Discharge  on,  see  Bankruptcy,  50. 
Constitutionality  of  Statute  Forbidding,  see 

Constitutional  Law,  735. 
See  also  Contracts,  417. 
For  Editorial  Notes,  see  infra,  IV.   §   2. 


17.  The  court  will  not  construe  exemp- 
tion laws  as  forbidding  laborers  from  as- 
signing wages  yet  to  be  earned.  Mallin  v. 
Wenham,  209  111.  252,  70  N,  E.  564, 

65:  602 

18.  Public  policy  does  not  invalidate  an 
assignment  of  future  wages  to  be  earned 
under  an  existing  contract  of  employment. 

Id. 

19.  An  assignment  of  wages  to  be  earned 
in  the  future  under  an  existing  contract  is 
valid,  and  it  is  immaterial  that  the  term  of 
employment  is  not  of  definite  duration.  Id. 

20.  An  assignment  of  wages  for  the  pe- 
riod of  one  year,  made  by  a  person  then 
working  under  a  contract,  whether  it  was 
for  work  by  the  day,  by  the  week,  or  oth- 
erwise, is  valid,  under  R.  I.  Gen.  Laws, 
chap.  254,  §  28,  when  made  and  recorded  as 
the  statute  provides.  Dolan  v.  Hughes,  20 
R.  L  513,  40  Atl.  344,  40:  735 
Unearned  pay  of  oflScers. 

For  Editorial  Notes,  see  infra,  TV.  §  2. 

21.  The  assignment,  by  a  retired  officer 
of  the  United  States  Army,  of  his  unearned 
pay,  is  against  public  policy,  and  will  not 
be  upheld  by  the  courts.  Schwenk  v. 
Wyckoff  (N.  J.  Err.  &  App.)  46  N.  J,  Eq. 
560,  20  Atl.  259,  9:  221 

22.  An  assignment  by  a  sheriff  of  such 
fees  as  he  may  become  entitled  to  receive 
from  the  state  or  county,  for  public  services 
thereafter  to  be  rendered,  is  contrary  to 
public  policy  and  void.  Bowery  Nat.  Bank 
V.  Wilson,  122  N.  Y.  478,  25  N.  E.  855, 

9:  706 

23.  An  assignment  by  a  mail  carrier  in 
the  postoffice  department,  of  a  month's  sal- 
ary not  yet  earned,  is  void  as  against  pub- 
lic policy.  State  v.  Williamson,  118  Mo. 
146,  23  S.  W.  1054,  21 :  827 
Commissions  of  executor. 

24.  An  assignment  by  an  executor  before 
his  accounting,  of  his  commissions,  is  void 
as  contrary  to  public  policy,  since  when  the 
hope  of  compensation  is  gone  a  strong  in- 
centive to  diligence  and  zeal  is  wanting,  and 
the  temptation  to  be  content  with  a  lax  or 
perfunctory  administration  of  the  trust  be- 
comes more  persuasive.  Re  Worthington, 
141  N.  Y.  9,  35  N.  E.  929,  23:  97 
Future  instalment  of  alimony. 

25.  An  instalment  of  alimony  which  is  to 
become  due  at  a  future  time  under  a  decree 
is  not  assignable.  Kempster  v.  Evans,  81 
Wis.  247,  51  N.  W.  327,  15:  391 
Vendor's  lien. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

26.  A  vendor's  lien  upon  real  estate  is 
not,  in  general,  assignable.  Law  v.  Butler, 
44  Minn.  482,  46  N.  W.  53,  9:  856 
Of  right  to  use  name. 

See  also    Trade   Name,  21. 

27.  The  right  of  one  person  to  use  the 
name  of  another,  given  him  by  contract, 
cannot  be  assigned  or  transferred  to  a  third 
party,  in  the  absence  of  an  express  stipula- 
tion to  that  effect.  Bagby  &  R.  Co.  v. 
Rivers,  87  Md.  400,  40  Atl.  171,  40:  632 
Of  contract. 

28.  A  railroad  company's  interest  in  an 
executory  agreement,  by  certain  of  its  first- 


150 


ASSIGNMENT,  II,  III. 


mortgage  holders,  to  pay  it  a  certain  sum  of 
money,  for  which  debenture  bonds  were  to 
be  issued  to  them,  is  not  capable  of  being 
sold  or  assigned.  Pettibone  v.  Toledo,  C.  & 
St.  L.  R.  Co.  148  Mass.  411,  19  N.  E.  337, 

1:787 

29.  A  lawyer  cannot  make  a  valid  assign- 
ment of  a  contract  giving  him  an  option  as 
to  certain  lands  in  consideration  of  the  use 
of  his  professional  skill  in  removing  clouds 
on  the  title,  unless  the  contract  has  been 
fully  performed  on  his  part.  Sloan  v.  Wil- 
liams, 138  111.  43,  27  N.  E.  531,  12:  496 

30.  The  right  to  assign  a  contract  under 
Iowa  Ck)de,  §  2084,  giving  the  as- 
signee a  right  of  action  in  his 
own  name,  do«es  not  permit  one  who 
has  ordered  machines  agreeing  to  give 
his  own  notes  therefor,  and  turn  over  as 
collateral  any  notes  taken  by  him  from  pur- 
chasers, to  assign  the  contract  so  as  to  sub- 
stitute another  in  his  stead,  whose  note 
must  be  accepted  in  lieu  of  his  own.  Rap- 
pleve  V.  Racine  Seeder  Co.  79  Iowa,  220,  44 
N.  "W.  363,  7:  139 
Of   claim   against   nonresident;    to   defeat 

exemption  laws. 
To  Evade  Exemption  Law,  see  Exemptions, 
6-9. 

31.  Where  a  creditor,  knowing  his  debtor 
to  be  insolvent,  attaches  an  asset  belonging 
to  him  in  a  foreign  state,  and  then  sells  and 
delivers  his  claim,  with  all  rights  acquired 
by  the  attachment  suit,  to  a  nonresident,  to 
obtain  an  advantage  over  other  creditors 
and  to  avoid  being  enjoined  from  the  furth- 
er prosecution  of  the  suit,  no  action  can  be 
maintained  against  him  by  the  debtor's  as- 
signee in  insolvency,  either  to  enjoin  the 
suit  or  the  lending  of  his  name  for  such 
purpose,  or  to  recover  the  amount  which  he 
has  realized  from  the  claim.  Proctor  v. 
National  Bank  of  the  Republic,  152  Mass. 
223,  25  N.  E.  81,  9:  122 


n.  Equitable  Assignment;   Orders. 

Check  as  Equitable  Assignment,  see  Banks, 
90,  105-108,  117,  120;  Checks,  21;  Lim- 
itation of  Actions,   185. 

Of  Savings  Bank  Account,  see  Banks,  368. 

Of  Part  of  Mortgage  Indebtedness,  see 
Mortgage,  157. 

See  also  infra,  45;  Pledge  and  Collateral 
Security,  28. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

32.  A  fimd  that  exists  potentially,  al- 
though it  is  not  yet  due,  is  subject  to  an 
equitable  assignment  of  a  portion  of  it, 
which  will  be  operative  as  soon  as  the  fund 
is  acquired.  Warren  v.  First  Nat.  Bank,  149 
111.    9,   38   N.   E.    122,  25:  746 

33.  The  test  of  an  equitable  assignment 
IS  whether  the  debtor  would  be  justified  in 
paying  the  debt,  or  the  portion  contracted 
about,  to  the  person  claiming  to  be  assign- 
ee. Fairbanks  v.  Sargent,  117  N.  Y.  320, 
22  N.  E.  1039,  6:  475 

34.  Part  of  a  debt  or  chose  in  action  may 
be  assigned  in  equity,  creating  a  trust  in 


favor  of  the  assignee  and  an  equitable  lien 
upon  the  fund.  Warren  v.  First  Nat.  Bank, 
149  111.  9,  38  N.  E.   122,  25:  746 

35.  One  who  pays  the  debt  of  another  on 
a  promise  by  the  creditor  to  assign  it  is  the 
equitable  assignee  of  the  debt,  although  no 
assignment  in  writing  is  made.  Crumlish 
v.  Central  Improv.  Co.  38  W.  Va.  390,  18  S. 
E.  456,  23:  120 

36.  An  agreement  that  an  attorney  shall 
have  a  fixed  share  of  the  proceeds  of  certain 
claims  in  consideration  of  their  prosecution 
by  him  and  the  extinguishment  of  a  debt 
due  him  for  past  services,  although  the  sole 
right  to  compromise  them  and  the  power 
to  bring  suit  is  reserved  to  the  creditor, 
constitutes  an  equitable  assignment  of  the 
stipulated  share.  Fairbanks  v.  Sargent,  117 
N.  Y.  320,  22  N.  E.   1039,  6:  475 

37.  The  moment  a  creditor  attains  legal 
title  and  possession  of  bonds  received  in 
payment  of  a  claim,  the  equity  of  another 
to  whom  he  had  previously  made  an 
equitable  assignment  of  a  share  of  the 
claims  becomes  a  legal  title,  and  the  pos- 
session as  to  that  share  is  the  possession 
of  the  assignee.  Id. 
Orders. 

Issued    by  De  Facto    Town,  see    Municipal 

Corporations,  34. 
Liability  of  Town  Trustees  on,  see  Officers, 

196,  197. 

38.  An  order  to  pay  money  to  become 
due  under  a  contract  for  services  to  a  third 
person  will  constitute  a  valid  assignment 
which  equity  may  enforce.  Merchants'.  & 
M.  Nat.  Bank  v.  Barnes,  18  Mont.  335,  45 
Pac.  218,  47:  737 

39.  An  assignment  of  the  claims  of  la- 
borers to  a  bank  which  furnishes  money  to 
their  employer  to  pay  them  is  not  effected 
by  the  indorsement  of  the  orders,  by  the 
laborers  as  evidence  of  payment,  and  their 
retention  by  the  bank  as  vouchers.  United 
States  Use  of  Fidelity  Nat.  Bank  v.  Run- 
die,  46  C.  C.  A.  251,  107  Fed.  227,      52:  505 

40.  Neither  a  legal  transfer  of,  nor  a  lien 
upon,  the  proceeds  of  milk  to  be  delivered 
by  a  producer  to  a  cheese  manufacturer,  is 
effected  by  an  order  directing  the  latter  to 
deliver  to  a  third  person  the  proceeds  of  all 
milk  which  the  producer  shall  deliver  at  the 
factory  in  the  future,  where  no  contract 
exists  requiring  the  delivery  of  any  milk. 
O'Niel  V.  Helmke,  124  Wis.  234,  102  N.  W. 
573,  70:  338 


in.  Rights  and  Liabilities  of  Assignees. 

In  Savings  Bank  Pass  Book,  Assigned,  see 
Banks,  367. 

Rights  of  Assignees  of  Negotiable  Paper, 
see  Bills  and  Notes,  V.  a. 

On  Transfer  of  Probate  Bond,  see  Bonds,  14. 

Liability  of  Transferee  of  Corporate  Fran- 
chise, see  Corporations,  63-68. 

Rights  of  Transferees  of  Corporate  Stock, 
see  Corporations,  V.  c,  1. 

Liability  of  Transferees  of  Corporate 
Stock,  see  Corporations,  V.  f,  2. 


ASSIGNMENT,  IV 


161 


Right  to  Enforce  Covenant,  see  Covenant, 
76-79. 

Of  Executor's  Commissions,  see  Executors 
and  Administrators,  181. 

Assignee  of  Distributee,  see  Executors  and 
Administrators,   196-199. 

Right  of  Assignee  to  Intervene  in  Garnish- 
ment Proceeding,  see  Garnishment,  114. 

Of  Insurance  Policy,  see  Insurance,  724-726. 

Rights  of  Assignee  to  Insurance,  see  In- 
surance, VI.  d,  2,  b. 

Priority  of  Assignees  over  Mechanic's  Lien, 
see  Mechanics'  Liens,  19. 

Rights  of  Assignee  of  Rent  Note,  see  Lajid- 
lord  and  Tenant,  227. 

Liability  of  Assignee  for  Rent,  see  Land- 
lord and  Tenant,  212-216. 

Of  Gas  Lease,  see  Mines,  82. 

Of  Assignee  of  Mortgage,  see  Mortgage,  IV. 

Assignee's  Right  of  Action,  see  Parties, 
L  a,  3. 

Duty  of  Assignee  of  Warehouse  Receipt, 
see  Pledge  and  Collateral  Security, 
21-23. 

See  also  supra,  15,  16,  30. 

For  Editorial  Notes,  see  infra,  IV.  §  5. 

41.  The  assi^ee  of  a  chose  in  action 
takes  it  subject  to  all  the  defenses  which 
could  have  been  set  up  against  it  in  the 
hands  of  the  assignor  at  the  time  of  the  as- 
signment. Williams  v.  Neely,  67  C.  C.  A. 
171,  134  Fed.  1,  69:  232 

^.  An  assignment  by  a  purchaser  of  a 
contract  of  purchase,  although  it  does  not, 
under  Cal.  Civ.  Code,  §  1457,  relieve  him  of 
his  obligation  to  the  seller,  unless  the  latter 
consents  to  the  assignment,  does  make  him 
merely  a  surety  for  the  payment  of  the  pur- 
chase price  as  between  himself  and  the  as- 
signee. The  assignee  is  not  relieved  from 
the  obligation  under  the  assignment  to  pay 
such  purchase  price  by  the  fact  that  the 
seller  refuses  to  accept  him  as  his  debtor 
in  place  of  the  assignor.  Cutting  Packing 
Co.  v.  Packers'  Exchange,  86  Cal.  574,  25 
Pac.  52,  10:  369 

Priority  between  assignees. 
For  Editorial  Notes,  see  infra,  IV.  §  6. 

43.  As  between  successive  assignments  of 
a  fund  in  th'e  hands  of  a  third  person,  the' 
one  which,  being  acquired  without  notice 
of  prior  ones,  is  first  brought  to  the 
knowledge  of  the  depositary,  is  entitled  to 
priority.  Phillips'  Estate,  205  Pa.  515,  55 
Atl.  213,  66:  760 

44.  An  assignment  of  accounts  and  other 
choses  in  action  to  a  purchaser  in  good 
faith,  who  obtains  actual  possession  of  them 
and  immediately  notifies  the  debtors,  gives 
him  a  perfect  legal  title  thereto  as  against 
a  prior  assignee  to  whom  they  were  as- 
signed for  security,  but  who,  without  ob- 
taining possession  of  them  or  giving  notice 
to  the  debtors,  left  them  with  the  assignor 
for  collection.  Graham  Paper  Co.  v.  Pem- 
broke, 124  Cal.  117,  66  Pac.  627,         44:  632 

45.  The  equity  of  an  attorney  to  whom 
an  equitable  assignment  is  made  of  a  share 
of  claims  which  are  to  be,  and  which  are, 
collected  by  his  efi'orts,  although  the  power 
to  bring  suit   and  the   sole  right   to   com- 


promise are  reserved  to  the  creditor,  is  not 
inferior  to  that  of  one  to  whom  they  are 
assigned  as  collateral  security  for  a  prece- 
dent debt,  and  who  cannot  prevent  a  com- 
promise by  the  creditor  if  sufficient  is  ob- 
tained to  satisfy  his  claim.  Fairbanks  v. 
Sargent,  117  N.  Y.  320,  22  N.  E.  1039, 

6:  475 


TV.  Editorial  Notes. 

By  Bankrupt,  see  Bankruptcy,  V.   §  6. 

Of  Pjomissory  Note,  see  Bills  and  Notes, 
Vn.  §§  13-24. 

Of  Insurance,  see  Insurance,  VIII.  §§  37- 
40. 

Of  Judgment,  see  Judgment,  VIII.  §  30. 

Of  Mortgage,  see  Mortgage,  VIII.  §  13. 

Of  Lease,  see  Landlord  and  Tenant,  IV.  S 
4. 

§  I.  Generally. 

Transfer  of  right  to  use  water  for  irriga- 
tion.    65:407. 

Necessity  of,  to  surety's  right  of  subroga- 
tion to  judgment  against 
principal.     68:  572. 

Law  governing  assignment  of  claim  for 
damages  for  death  or  bod- 
ily  injury.     56:  223. 

§  2.  Assignability.  * 

Of   cause   of   action   for   personal  tort.  14: 
512. 
Test  of  assignability.     14:  512. 
Illustrations  of  rule.     14:  513. 
Iowa  rule.     14:  513. 
Effect  of  verdict.     14:  514. 
Conclusiveness    of    survivability    as    a 

test.      14:  514. 
Effect    of    verdict    on    assignability    of 
cause    of    action    for    per- 
sonal tort.     14:  514. 

Of    cause    of    action    for    personal    injury. 
44:  177. 
In  cases  of  insolvencv  and  bankruptcy. 

44:  180.' 
Test  of  assignability.     44:  180.- 
Classification  by  states.     44:  181. 

Of  mechanic's  lien.'  13:  704. 

Of  vendor's  lien.     13:  188.* 

Of  insurance  policy.     9:  660.* 

Of  policy  of  insurance  taken  out  by  wife 
on  husband's  life.  10: 
259.» 

Of  railroad  ticket.     18:  55. 

Of  future  contingent  interest.    5:  122.* 

Of  option.     21:  133. 

Of  contracts  for  personal  services.  12:  496.* 

Of  future  accounts  or  earnings.     14:  126. 

Of  unearned  salary  of  officer.     9:  706.* 

Of  contract  hiring  out  convicts.     27:  608. 

Of  right  of  entry  for  a  condition  broken. 
60:  750.^ 

Of  claim  for  penalty  against  national  bank 
taking  usurious  interest. 
56:  695. 

Of  trademark  or  trade  name.    9:  148.* 

Of  right  to  set  aside  judgment.     15:  813. 

Of  good-will  of  business.     13:  381.* 

Of  claims  against  United  States.    2:  571.* 

§  3.  How  made;  what  constitutes  eqmtable 
assignment. 


162 


ASSIGNMENTS  FOR  CREDITORS. 


How  futiire  crops  assignable.     23:  449. 
Efifect  of  check  or  bill  of  exchange  as  equi- 
table assignment.  7:  596.* 
Assignment    of    life    insurance    policy.      9: 

660.' 
Equitable  assignees  of  mortgagor.     5:  292.* 
§  4.  Effect  of. 

Effect  of  assignment  of  debt  to  carry  mort- 
gage security.     3:  785.* 
Effect  of  assignment  of  oil  and  gas  lease. 

34:  62. 
Undelivered  written  transfer  or  assignment 
of  property  as  a  gift.    21: 
693. 
Assignment   of  mortgage  as  a   conveyance 
within  recording  acts.     6: 
292.* 
§  5.  Rights  and  liabilities  of  parties;  notice. 
Liability  of  assignee  of  leasehold  for  rent. 

14:  151. 
Right  of  assignee  of  claim  against  foreign 

government.     3:  460.* 
Rule  that  assignee  of  non-negotiable  chose 
in  action  takes  subject  to 
prior   equities.     5:  620.* 
Effect   on   assignee   of  insurance   policy   of 
acts  of  forfeiture  by  as- 
signor.    18:  135. 
Right  of  attorney  to  purchase  chose  in  ac- 
tion.    9:  91.* 
§  6.  Priority  rights  of  different  assignees  of 

fund  in  hands  of  third  person. 
Priority  of  notice  to  trustee  gives  priority 
of  right.     66:  761. 
In  general.     66:  761. 
As  applied  to  assignees  in  bankruptcy. 
66:766. 
Under  English  statutes.     66:  766. 
Notice  before  bankruptcy.  66: 

766. 
No  notice  before  bankruptcy. 

66:  767. 
When  the  assignment  was  giv- 
en   after   the   bankruptcy 
of  the  assizor.     66:  768. 
In  the  United  States.     66:  769. 
Subsequent    assignee    must    take    bona 
fide.     66:  769. 
In  general.     66:  769. 
Duty  to  inquire  as  to  prior  encum- 
brances.    66:  770. 
SuflRciency  of  notice.     66:  770. 

Informal     and     imperfect     notice. 

66:  770. 
Accidental  Knowledge.     66:  771. 
Indirect  notice.     66:  771. 

Notice  to  solicitor  of  trustees. 

66:  771. 
Filing   lis  pendens.     66:1771. 
Notice  to  one  or  more  of  several 

trustees.     66:  771. 
When  trustees  notified  are  super- 
seded by  others.     66:  772. 
Notice  given  to  wrong  party.     66: 

772. 
When    assignor   is   also   a   trustee. 

66:  772. 
When  assignee  is  also  the  trustee, 
or  one  of  the  trustees.  66: 
773. 
When  the  fund  is  in  court.  66:  773. 


Notdce  to  trustee  before  fund  is 
vested  in  him  as  the  prop- 
erty of  assignor.  tJfi:  773. 
When  notices  are  simultaneous. 
66:  774. 
Interests  not  within  scope  of  rule.  66: 
774. 

Qui  prior  est  tempore,  potior  est  jure.  66: 
774. 

States  in  which  both  rules  have  been  fol- 
lowed.     66:  775. 
New    York.      66:  775. 
Pennsylvania.      66:  770. 
Other  states.     66:776. 

Other  cases.     66:  777. 

When  the  contract  assigned  provides  as  to 
mode  of  assignment.  66: 
777. 

Priority  of  notes  falling  due  at  different 
times  secured  by  same 
mortgage.     24:  800. 

§  7.  Actions. 

Assignment  as  ground  of  action.     36:  582. 

Suit  by  assignee  of  chose  in  action.     12: 
681.* 

Assignee  of  account  for  work  and  labor  of 
goods  sold,  as  real  party 
by  whom  action  must  be 
brought.      64:  597. 

When  assignee  of  chose  in  action  may  sue 
in  United  States  court.  2: 
746.* 

Right  of  assignee  of  chose  in  action  to  sue 
in  his  own  name.    5:  430.* 

§  8.  Set-off. 

Against  insolvent  of  claims  purchased  after 
insolvency.     2l:2S0. 

Against  assigned  claim,  of  debtor's  de- 
mand against  assignor. 
23:  305. 

Against  judgment  in  hands  of  assignee.  23: 
335. 

Against  assignee  of  commercial  paper,  of 
claim  against  assignon 
23:  325. 

Availability  of  equitable  set-off  against  as 
signee.     2:  273.* 


ASSIGNMENTS  FOR  CREDITORS. 

I.  What  Constitutes  an  Assignment. 
n.  Construction    and    Effect  of    Assign- 
ment. 
Ur.  Assignee  or  Trustee. 

a.  In  General. 

b.  Right  and  Powers. 

1.  In   General. 

2.  Property  or  Title  Taken. 

3.  Actions  by. 

c.  Liabilities. 

IV.  Rights   and   Liabilities  of   Assignee's 

Attorney. 
V.  Validity;  Taking  Effect. 
VI.  Property   Included. 
Vn.  Preferences  by  Insolvent. 

a.  In  General. 

b.  Validity  of. 


ASSIGNMENTS  FOK  CREDITORS,  I. 


153 


Vni.  Rights,  Duties,  and  Liabilities  of 
Creditors;  Priority  and  Release 
of  Claims. 

a.  In   General. 

b.  Release  of  Claims. 
IX.  Liability  of  Assignor. 

X.  Editorial  Notes. 

Discharge  of  Attachment  as  against  As- 
signee, see  Attachment,  52. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.    f ;     IIL  .  §    16. 

Power  of  Corporate  Agent  to  Make,  for 
Corporation,  see  Corporations,  224. 

By  Insolvent  Corporation,  Generally,  see 
Corporations,  764,  765. 

By  Foreign  Corporation,  see  Corporations, 
871-874. 

Priority  of  Garnishment  Proceedings,  see 
Garnishment,  99,  100. 

Effect  of  Partial  Invalidity  of  Statute  as 
to,  see  Insolvency,  4.  *< 

By  Insurance  Company,  see  Insurance,     79. 

Action  by  Stockholders  to  Set  Aside  As- 
signment, see  Insurance,  676. 

Libelous  Charge  of  Making,  see  Libel  and 
Slander,  51,   120;   Trial,  262. 

Parties  to  Action  to  Set  Aside,  see  Parties, 
169. 

Set-Off'  in  Case  of,  see  Set-Off  and  Counter- 
claim, 36-43,  56,  67. 

As  to  Bankruptcy  Matters,  see  Bankruptcy. 

As  to  Insolvency  Generally,  see  Insolvency. 

As  to  Receivers,  see  Receivers. 


I.  What  Constitutes  an  Assignment. 

See  also  Sale,  5. 

For  Editorial  Notes,  see  infra,  X.  §  1. 

1.  A  bill  of  sale  in  satisfaction  of  debts 
cannot  be  turned  into  an  assignment  by 
the  fact  that  the  creditor  agrees  to  pay 
other  claims  against  the  debtor,  if  the  in- 
ability is  absolute  and  not  dependent  on 
the  disposition  made  of  the  property.  Rice 
V.  Wood,  61  Ark.  442,  33  S.  W.  636,     31:  609 

2.  The  transaction  constitutes  an  assign- 
ment for  creditors,  where  one  or  more  in- 
struments are  executed  by  a  debtor,  in 
whatsoever  form  or  by  whatsoever  name, 
with  the  intention  of  having  them  operate 
as  an  assignment,  and  with  the  intention 
of  granting  the  property  conveyed  abso- 
lutely to  a  trustee  to  raise  a  fund  to  pay 
debts.  Richmond  v.  Mississippi  Mills,  52 
Ark.  30,   11   S.  W.   960,  4:  413 

3.  A  voluntary  transfer  by  an  insolvent 
of  certain  specified  property  in  trust  to 
sell  enough  of  it  to  pay  certain  specified 
debts  and  return  the  remainder  is,  regard- 
less of  the  form  of  the  instrument,  an  as- 
signment within  the  meaning  of  111.  act 
May  22,  1877,  conferring  jurisdiction  on 
county  courts  to  supervise  the  execution 
of  trusts  growing  out  of  voluntary  assign- 
ments for  creditors.  Farwell  v.  Cohen,  138 
m.  216,  28  N.  E.  35,  32  N.  E.  893,       18:  281 

4.  A  partial  assignment  for  particular 
creditors  is  included  within  the  provisions 
of  111.  act  May  22,  1877,  which  provides  that 


an  assignment  shall  include  "any  other 
property  .  .  .  comprehended  within  the 
general  terms  of"  the  same,  and  that  all 
debts  and  liabilities  are  to  be  paid  pro  rata 
"from  the  assets  thereof,"  and  the  trust  is 
enlarged  by  the  statute,  which  makes  it 
inure  to  the  benefit  of  all  the  creditors.  Id. 

5.  An  instrument  transferring  property 
to  a  trustee,  with  authority  to  sell  it  and 
make  a  deed  "in  the  name  of  the  grantors," 
and  providing  for  return  of  the  surplus  to 
the  grantors,  is  a  deed  of  trust,  and  not  an 
assignment  for  creditors.  Tittle  v.  Vanleer, 
89  Tex.  174,  34  S.  W.  715,  37:  337 

5a.  An  intent  to  make  a  mortgage,  and 
not  an  assignment  for  creditors,  is  indi- 
cated by  the  insertion  in  the  instrument  of 
provisions  for  a  preference  of  creditors, 
where  suck  preference  could  be  legally  made 
in  a  mortgage,  but  could  not  be  made  in  an 
assignment  for  creditors,  and  is  to  be  ig- 
nored, under  a  statute  requiring  a  provision 
for  such  preferences  to  be  ignored  only 
when  the  conclusion  is  reached  from  other 
language  in  the  instrument  that  it  was  in- 
tended to  be  an  assignment.  Id. 

6.  The  question  whether  an  instrument  is 
an  assignment  for  creditors  or  a  mortgage 
depends  on  the  legal  intent  of  the  grantor 
as  expressed  in  the  language  used,  when 
read  in  the  light  of  the  surrounding  circum- 
stances; and  it  will  be  considered  as  a 
mortgage,  unless  there  appears  an  intent  to 
devest  the  grantor  of,  and  vest  in  the 
giantee,  all  title  and  interest  in  the  prop- 
erty for  the  purpose  of  providing  for  the 
immediate  payment  of  the  debt  or  debts 
provided  for.  Id. 

7.  A  conveyance  of  property  of  a  corpora- 
tion in  trust  to  be  sold  and  the  proceeds 
applied  to  the  payment  of  indebtedness,  also 
authorizing  the  trustee  to  collect  accounts 
and  use  the  proceeds  in  payment  of  debts, 
but  providing  that  any  surplus  shall  be  re- 
turned to  the  corporation  or  its  assigns,  is 
an  assignment  for  the  benefit  of  creditors, 
and  not  a  mere  mortgage.  Conely  v.  Col- 
lins, 119  Mich.  519,  78  N.  W.  555,       44:  844 

8.  A  deed  of  trust  to  pay  debts  is  a 
mortgage,  and  not  an  assignment  for  ben- 
efit of  creditors,  where  it  is  not  the  inten- 
tion of  the  parties  to  devest  the  debtor  of 
the  title,  or  to  make  an  appropriation  of 
the  property  affected  to  the  raising  of  a 
fund  to  pay  debts.  Smead  v.  Chandler,  71 
Ark.  505,  76  S.  W.  1066,  65:  353 

9.  A  mortgage  by  a  merchant  of  all  his 
property  for  the  security  of  certain  credi- 
tors will  not  constitute  in  law  an  assign- 
ment for  creditors,  invalid  because  partial, 
where  the  mortgagor  intends  to  keep  up  his 
business  if  he  can,  and  does  not  intend  to 
devest  himself  of  title  to  and  control  over 
the  property.  Noyes  v.  Ross,  23  Mont.  425, 
59  Pac.  367,  47:  400 

10.  A  mortgage  taken  by  a  surety  from 
a  debtor  in  contemplation  of  insolvency,  as 
indemnity  not  only  for  the  debt  on  which 
he  is  liable,  but  also  for  another  debt  on 
which  he  was  not  previously  liable,  but 
which  he  assumes  and  actually  pays  in 
consideration  of  the  mortgage,  is  in  effect 


ASSIGNMENTS  FOR  CREDITORS,  II.,  III.  a. 


154 

a  trust  for  the  benefit  of  all  the  insolvent's 
creditors  within  the  meaning  of  Ohio  Rev. 
Stat.  §  6343;  and  the  mortgagee  holds  it 
not  for  himself  alone,  bat  is  a  trustee  for 
the  creditors  in  proportion  to  their  respec- 
tive demands.  Pendery  v,  Allen,  50  Ohio 
St.   121,  33  N.  E.  716,  19:  367 

11.  A  mortgage  by  a  debtor  of  his  entire 
stock  of  goods  and  store  furniture  to  secure 
certain  creditors,  and  an  assignment  "in 
pledge"  of  all  notes,  accounts,  and  choses  in 
action  to  the  same  parties  as  security  for 
the  same  debts,  constitute  a  general  assign- 
ment for  the  benefit  of  creditors,  where  the 
debts  are  past  due  and  no  extension  of  time 
for  payment  is  given,  and  an  immediate 
sale  of  the  property  is  provided  for,  the 
proceeds  to  be  applied  to  pay  debts,  and  a 
person  is  designated  to  take  charge  of  the 
property  and  do  all  that  is  required  of  a 
trustee  in  an  assignment;  upon  whom  or- 
ders are  drawn  in  favor  of  nonpreferred 
creditors,  which  are  directed  to  be  paid  out 
of  the  surplus  proceeds  of  the  property; 
and  where  letters  written  to  the  nonpre- 
ferred creditors  state  that  the  transaction 
"protects  all  from  complications."  Richmond 
V.  Mississippi  Mills,  52  Ark.  30,  11  S.  W. 
960,  4:  413 

12.  A  petition  by  a  creditor  or  some  other 
party  in  interest  is  a  proper  way  to  call 
upon  the  court  to  declare  a  deed  of  trust 
for  certain  creditors  to  be  in  eifect  an  as- 
.«:igiiment  for  all  creditors.  Farwell  v.  Co- 
hen. 138  111.  216,  28  N.  E.  35,  32  N.  E.  893. 

18:  281 
12a.  A  voluntary  assignment  which  on 
its  face  includes  only  part  of  the  debtor's 
property,  and  contains  no  general  terras 
descriptive  of  property,  is  not  converted 
into  a  general  assignment  of  all  the  debtor's 
iinexempt  property  by  111.  act  May  22,  1877, 
which  provides  that  an  assignment  for  cred- 
itors shall  not  be  void  for  want  of  any 
list  or  inventory,  and  that  a  list  or  inven- 
tory shall  not  be  conclusive,  but  that  the 
assignee  shall  take  title  to  "any  other 
property  not  exempt  by  law  .  .  .  com- 
prehended within  the  general  terms"  of  the 
assignment.  Id. 


II.  Construction  and  Effect  of  Assignment. 

Effect  of  Preference  on  Assignment,  see 
infra,  67,  68. 

To  Prevent  Attachment,  see  Courts,  420. 

Dissolution  of  Prior  Attachments  by,  see 
Parties,  218. 

On  Carrier's  Lien,  see  Carriers,  839,  840, 
844. 

Testing  Validity  of  Assignment,  see  Cer- 
tiorari, 29. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
262-267. 

Chan;2;e  in  Statute  as  to,  as  Impairing  Ob- 
ligation of  Contract,  see  Constitutional 
Law,  1199,  1211. 

Abrogation  or  Breach  of  Contract  by,  see 
Contracts,    744. 


Effect  on  Right  to  Rescind  Fraudulent  Con- 
tract, see  Contracts,  779. 

Taking  Possession  of  Vessel  Constructed, 
because  of,  as  Acceptance,  see  Con- 
tracts, 707. 

Termination  of  Insurance  Policy  by,  see 
Insurance,  1365,  1370,  1371. 

Assignment  as  Payment  of  Judgment,  see 
Insurance,  1344. 

Right  to  Levy  on  Property  Assigned,  see 
Levy  and  Seizure,  38. 

Retrospective  Statutes  as  to,  see  Statutes, 
538. 

For  Editorial  Notes,  see  infra,  X.  §  5. 

13.  The  legal  effect  of  two  deeds  executed 
in  duplicate,  and  in  all  essential  respects 
exactly  the  same,  assigning  property  for 
creditors,  is  the  same  as  that  of  a  single 
deed.  Riley  v.  Carter,  76  Md.  581,  25  Atl. 
667,  19:  489 

14.  An  assignment  for  the  benefit  of  his 
"creditors,"  by  a  person  in  his  own  right 
and  as  surviving  partner  of  all  partnership 
and  individual  property,  is  to  be  considered 
as  an  assignment  of  the  partnership  prop- 
erty for  the  benefit  of  partnership  credi- 
tors, and  of  separate  property  for  the  bene- 
fit of  separate  creditors.  Id. 

15.  An  assignment  by  lessees  of  a  coal 
mine  for  benefit  of  their  creditors  will  not 
defeat  the  right  of  the  lessor  to  proceed 
under  the  terms  of  the  lease  to  declare  a 
forfeiture  for  existing  defaults  and  to  take 
the  fixtures  at  an  appraised  value  and  ap- 
ply their  value  in  satisfaction  of  claims  for 
breaches  of  covenants  in  the  lease.  Potter 
V.  Gilbert,  177  Pa.  169,  35  Atl.  597,      35:  580 


m.  Assignee  or  Trustee. 
a.  In  General. 

Right  to  Have  Assignee  Accoimt,  see  infra, 

89-92. 
Estoppel  against,  see  Estoppel,  84. 
Approval  of  Bond  on  Holiday,  see  Holidays, 

3. 

Who  may  be. 

16.  A  creditor  of  the  assignor  may  be  de- 
signee in  an  assignment  for  benefit  of  cred- 
itors. Farwell  v.  Cohen,  138  HI.  216,  28  N. 
E.  35,  32  N.  E.  893,  18:  281 
Creditor's  rights  in  choice  of. 

17.  Partnership  creditors  may  vote  in 
the  choice  of  assignees  and  on  the  matter 
of  the  discharge  of  a  single  insolvent  part- 
ner, although  the  firm  is  not  insolvent. 
Clark  V.  Stanwood,  166  Mass.  379,  44  N.  E. 
537.  34:  378 

18.  The  right  of  the  creditors  of  an  insol- 
vent to  select  the  assignee,  under  the  Mary- 
land insolvent  law,  by  insolvent  proceedings 
begun  within  four  months  after  the  commis- 
sion of  an  act  of  insolvency,  cannot  be  de- 
feated by  a  deed  executed  within  that  time 
assigning  for  creditors  all  the  estate  of  the 
insolvent  to  a  trustee  selected  by  himself. 
Riley  v.  Carter,  76  Md.  581,  25  Atl.  667, 

19:  489 


ASSIGNMENTS  FOR  CREDITORS,  III.  b— c 


155 


b.  Rights   and   Powers. 
1.  In  General. 

Sending  Notice  of  Protest  to  Assignee,  see 

Bills  and  Notes,  175. 
Power  to  Avoid  Landlord's  Lien  for  Rent, 

see  Landlord  and  Tenant,  219. 
Right    to    Attorney's    Fees    for    Defending 

Suit,  see  Costs  and  Fees,  49,  50. 
Right    to    Set    up    Defense    of    Usury,    see 

Usury,  45. 
For  Editorial  Notes,  see  infra,  X.  §  7. 

19.  An  assignee  for  creditors  is  regarded 
as  the  representative  of  the  creditors,  and, 
as  such,  may,  for  the  benefit  of  creditors, 
set  aside  conveyances  by  the  assignor  in 
fraud  of  them,  to  the  extent  that  property 
is  needed  for  the  payment  of  debts.  Moore 
v.  Williamson  (N.  J.  Prerog.  Ct:)k  44  N.  J. 
Eq.  496,  15  Atl.  587,  1 :  336 

20.  Under  N.  Y.  Laws  1858,  chap.  314,  so 
long  as  a  voluntary  assignment  for  creditors 
is  in  force,  the  right  to  assail  prior  trans- 
fers of  property  made  by  the  assignor  rests 
in  the  assignee.  Loos  v.  Wilkinson,  110  N. 
Y.    195,   18   N.   E.   99,  1:  250 

21.  When  there  is  fraud  upon  an  honest 
assignment  (as  distinguished  from  fraud  in 
the  assignment),  by  prior  fraudulent  trans- 
fers of  his  property  by  the  assignor,  or  by 
a  subsequent  withholding  of  property  from 
the  assignee,  or  in  the  schedules  required  by 
law  to  be  made,  the  remedy  is  with  the  as- 
signee. Id. 

2.  Property  or  Title  Taken. 

Property    Included    in    Assignment    Gener- 
ally, see  infra,  VI. 
For  Editorial  Notes,  see  infra,  X.  §  4. 

22.  An  assignee  for  the  benefit  of  credi- 
tors can  have  no  greater  rights  in  the  as- 
signed property  than  his  assignor  had. 
Lockett  V.  Robinson,  31  Fla.  134,  12  So.  67, 

20:  67 

23.  A  trustee  of  an  insolvent,  "as  a  gen- 
eral rule,  takes  the  estate  subject  to  all  out- 
standing equities.  Merwin  v.  Austin,  58 
Conn.  22,  18  Atl.   1029,  7:  84 

24.  An  assignee  for  creditors  takes  the 
choses  in  action  of  his  assignor  as  a  volun- 
teer and  as  the  representative  of  the  assign- 
or and  his  estate,  subject  to  all  the  de- 
fenses and  equities  existing  against  them  in 
the  hands  of  the  assignor.  Nashville  Trust 
Co.  V.  Fourth  Nat.  Bank,  91  Tenn.  336,  18 
S.  W.  822,  15:  710 

3.  Actions  by. 

Jurisdiction  of,  see  Courts,  307. 

To     Enforce     Stockholder's     Liability,     see 

Banks,   24,  25;    Corporations,  631. 
Trover,  see  Trover,  23. 
See  also  Chattel  Mortgage,  70. 

25.  An  assignee  in  insolvency  to  whom,  by 
the  California  insolvent .  act,  §§  18,  21,  all 
the  insolvent's  estate  passes,  may  maintain 
«.n  action  on  behalf  of  the  creditors  to  de- 


clare a  chattel  mortgage  void.  Ruggles  y. 
Cannedy,  127  Cal.  290,  53  Pac.  911, 

46:  371 

26.  A  general  assignee  for  the  benefit  of 
creditors  of  an  insolvent  corporation,  being 
vested  with  the  legal  title  to  its  property, 
and  having  the  power  to  reduce  its  assets  to 
possession,  is  permitted  by  public  policy 
and  state  comity  to  sue  in  another  state  to 
collect  impaid  stock  subscriptions.  Stoddard 
V.  Lum,  159  N.  Y.  265,  53  N.  E.  1108, 

45:  551 

27.  An  assignee  for  creditors  has  no  right 
to  maintain  a  suit  for  property  claimed  to 
belong  to  the  assignor's  estate,  where  the 
assignor  would  be  prevented  from  doing  so 
by  his  own  agreement.  Sayre  v.  Weil,  94 
Ala.   466,    10   So.   546,  15:544 

28.  An  action  by  a  trustee  in  insolvency 
to  set  aside  a  voluntary  assignment  by  the 
insolvent  must  be  brought  within  a  rea- 
sonable time  after  he  has  qualified.  Riley  v. 
Carter,  76  Md.  581,  25  Atl.  667,  19:  489 

c.  Liabilities. 

Liability  to  Tax,  see  Taxes,  122,  127,  370. 

29.  An  assignee  for  creditors  who,  under 
the  advice  of  his  own  counsel  and  after  con- 
sultation with  and  by  the  consent  of  counsel 
employed  by  a  creditor,  compromises  suits 
afl"ecting  the  trust  estate,  is  not  chargeable 
by  that  creditor  with  lack  of  good  faith 
and  proper  diligence  which  will  render  him 
liable  for  assets  which  upon  the  compromise 
the  creditors  suing  are  allowed  to  retain 
imder  attachment.  Loucheimer  v.  Weil, 
113  N.  C.   181,  18  S.  E.  103,  23:  578 

30.  An  equity  order  confirming  the  re- 
port of  an  auditor  as  to  the  proper  dis- 
tribution of  funds  in  the  hands  of  an  as- 
signee for  benefit  of  creditors  cannot  be  at- 
tacked, even  upon  ground  of  fraud,  in  a  pro- 
ceeding at  law  upon  the  assignee's  bond 
after  his  failure  to  comply  with  the  terms 
of  the  order.  Such  attack  is  not  permitted 
by  a  statute  which  allows  equitable  de- 
fenses to  be  made  in  actions  at  law.  Tay- 
lor V.  State,  Use  of  Mallory,  73  Md.  208, 
20  Atl.  914,  11:  852 
For  act  of  coassignee. 

31.  An  assignee  for  creditors  is  not  re- 
sponsible for  money  of  the  trust  estate  col- 
lected and  misapplied  by  a  coassignee  with- 
out having  at  any  time  come  under  the 
former's  control.  Bruen  v.  Gillet,  115  N.  Y. 
10,  21   N.   E.  676,  4:  529 

32.  An  assignee  for  creditors,  who  signs 
checks  by  which  money  imder  the  joint 
control  of  himself  and  his  coassignee  is 
drawn  from  a  bank  and  transferred  to  the 
individual  and  separate  control  of  a  co- 
assignee,  is  responsible  for  any  amount 
which  is  lost  in  consequence  of  such  act, 
notwithstanding  that  the  money  had  been 
originally  collected  by  the  coassignee,  and 
voluntarily  deposited  by  him  to  the  joint 
credit  of  both  assignees,  and  notwithstand- 
ing, also,  that  the  assignee  is  a  private 
banker.  Id. 

33.  An  assignee  in  insolvency  whose  coas- 


ASSIGNMENTS  FOR  CREDITORS.  iV..  V 


156 

signee  collects  in  his  own  name  certain  of 
the  trus<,  funds  and  deposits  them  in  bank 
to  the  joint  account  of  both,  where  they 
subsequently  unite  in  drawing  the  funds 
from  the  bank  and  in  transferring  them 
to  the  individual  account  of  the  coassigriee, 
who  is  an  individual  banker,  is  responsible 
for  the  proper  application  of  the  funds  by 
the  coassignee;  but  if  the  latter  has  proper- 
ly disbursed  a  greater  amount  than  that 
transferred  to  him  from  the  joint  account, 
he  is  entitled  to  show  that  the  particular 
funds  transferred  were  used  in  such  dis- 
bursements. Moore  v.  Williamson  (N.  J. 
Prerog.  Ct.)  44  N.  J.  Eq.  496,  15  Atl.  587, 

1 :  336 

34.  An  assignee  for  creditors  who  united 
with  a  coassignee  in  drawing  out  funds  de- 
posited jointly  by  them  in  bank,  and  in 
transferring  them  to  the  individual  con- 
trol of  the  coassignee,  who  is  a  private 
banker,  is  not  chargeable,  in  case  of  a  mis- 
application of  the  funds  by  such  coassignee, 
with  more  than  5  per  cent  interest  on  such 
portion  of  the  fund  as  cannot  be  properly 
accounted  for,  in  the  absence  of  any  evi- 
dence of  affirmative  wrongdoing  on  the  part 
of  the  defendant,  or  of  the  use  by  him  of 
any  of  the  funds.  Bruen  v.  Gillet,  115  N. 
Y.  10,  21  N.  E.  676,  4:  529 
For  interest. 

See  also  supra,  34. 

35.  It  is  the  duty  of  an  assignee  to  have 
a  dividend  declared  as  soon  as  he  has  col- 
lected a  large  part  of  the  assets  and  has  as- 
certained the  probable  amount  of  the 
claims;  but  where  he  neglects  so  to  do, 
without  excuse,  he  is  liable  for  interest 
from  the  time  when  he  could  have  re- 
ceived an  order  declaring  a  dividend.  Man- 
hattan Cloak  &  S.  Co.  T.  Dodge,  120  Ind. 
1,  21  N.  E.  344,  6:  369 
On  bond. 

Release   of  Sureties  on,   see   Principal   and 
Surety,  48. 

36.  The  sureties  on  the  bond  of  the  as- 
signee of  an  insolvent's  estate  are  not  lia- 
ble for  his  conversion  to  the  use  of  the 
estate  of  property  not  belonging  to  it.  Best 
V.  Johnson,  78  Cal.  217,  20  Pac.  415,  3:  168 


IV.  Rights    and    Liabilities    of    Assignee's 
Attorney. 

37.  An  assignee's  attorney  has  no  right 
to  borrow  the  trust  funds,  paying  interest, 
and  buy  claims  against  the  debtor  below 
their  face  value,  and  then  file  them  and 
have  them  allowed.  Manhattan  Cloak  & 
S.  Co.  v.  Dodge,  120  Ind.  1,  21  N.  E.  344, 

6:  369 

38.  The  attorney  of  an  assignee,  who 
buys  claims  of  creditors  who  have  replevied 
goods  sold  to  the  debtor,  and  enters  judg- 
ments in  the  replevin  suits,  declaring  the 
goods  to  be  of  a  certain  value,  and  sells 
them  at  private  sale  for  a  less  sum,  is  ac- 
countable to  the  estate  of  the  insolvent  for 
the  actual  value  of  the  goods  only,  and 
not   for  the   amount  of  the  judgment.    Id. 


V.  Validity;     Taking    Effect. 

Effect  of  Preferences,  see  infra,  67,  68. 
Validity   of  Preferences,   see   infra,   VII.   b. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

252-261. 
Of   Foreign   Corporation,   see   Corporations, 

871-874. 
Estoppel   to   Deny   Validity,   see   Estoppel, 

242. 
By  Partnership,  see  Partnership,  49,  52-54. 
See  also  supra,  9. 

39.  Provisions,  in  a  general  assignment 
for  benefit  of  creditors,  requiring  the  exe- 
cution of  the  trust  in  a  manner  prohibited 
by  law,  render  it  void  as  to  nonassenting 
creditors.  Richmond  v.  Mississippi  Mills, 
52  Ark.  30,  11  S.  W.  960,  4:  413 
Assignments  by  partnerships. 

40.  A  surviving  partner  may  make  an  as- 
signment of  all  the  estate  of  the  late  firm 
for  creditors,  if  he  does  not  in  so  doing 
violate  any  statutory  provisions.  Riley  v. 
Carter,   76  Md.  581,  25  Atl.   667,       19:  489 

41.  An  assignment,  by  the  surviving  part- 
ners of  an  insolvent  firm  which  has  been 
dissolved  by  the  4eath  of  one  of  its  mem- 
bers, of  the  partnership  eS'ects  for  the  bene- 
fit of  the  social  creditors,  is  valid,  in  the 
absence  of  any  statutory  provision  to  the 
contrary,  although  it  provides  that  some 
creditors  shall  be  paid  before  others.  Pat- 
ton  V.  Leftwich,  86  Va.  421,  10  S.  E.  686. 

6:56» 

42.  The  separate  property  of  the  part- 
ners, as  well  as  the  firm,  property,  must 
be  included  to  make  valid  an  assignment  by 
a  partnership  for  benefit  of  creditors,  where 
the  statute  requires  all  creditors  accepting 
dividends  to  release  the  assignors  from  fur- 
ther liability.  McCord-Brady  Co.  v.  Mills, 
8  Wyo.  258,  56  Pac.  1003,  46:  737 

43.  An  assignment  by  a  firm  of  all  part- 
nership property  for  the  benefit  of  creditors 
is  not  rendered  invalid  by  reason  of  the 
fact  that  the  property  of  the  individual 
members  was  not  also  assigned,  where  no 
releases  are  required  from  the  creditors. 
McFarland  v.  Bate,  45  Kan.  1,  25  Pac.  238, 

10:  521 

44.  Statutes  which  relate  to  voluntary 
assignments  by  "insolvent  debtors"  for  the 
benefit  of  creditors;  and  require  sworn 
schedules  of  assets  and  creditors  to  be  pre- 
pared and  attached  to  the  deed  or  instru- 
ment of  assignment  by  "the  person,  firm, 
or  corporation"  making  such  assignment; 
and  provide  that  "in  case  of  assignments 
by  firms"  the  required  oaths  may  be  made 
by  any  member  of  the  firm, — assume  the 
right  of  insolvent  firms  to  assign  the  part- 
nership property  for  the  benefit  of  their 
creditors,  though  the  partners  themselves, 
as  individuals,  may  be  solvent.  It  follows 
that  the  individual  property  of  the  part- 
ners respectively  need  not  be  assigned  in 
order  to  render  the  assignment  valid.  Druck- 
er  V.  Welthouse,  82  Ga.  129,  8  S.  E.  40, 

2:  328 

45.  A  voluntary  assignment,  by  a  firm,  of 
partnership    property     for    the     benefit    of 


ASSIGNMENTS   FOR  CREDITORS,  VI. 


167 


creditors,  is  not  invalidated  by  a  provision 
excepting  therefrom  such  articles  as  are 
exempt  by  law,  such  provision  being  nuga- 
tory and  to  be  treated  as  surplusage.  Mc- 
Farland  v.  Bate,  45  Kan.   1,  25  Pac.  238, 

10:  521 
Delivery  of  possession. 

46.  The  delivery  by  an  assignor  for  bene- 
fit of  creditors  to  his  assignee  of  the  deed 
of  assignment  and  of  the  key  to  his  store- 
house, and  the  failure  of  the  assignor  to 
go  near,  or  exercise  any  control  over,  the 
assigned  goods  thereafter,  is  a  delivery 
of  the  possession  thereof,  within  the  mean- 
ing of  that  term  as  used  in  Mansf.  (Ark.) 
Dig.  §  305.  Gilkeson-Sloss  Commission  Co. 
V.  London,  53  Ark.  88,  13  S.  W.  513, 

7:  403 

47.  Delivery  of  possession  to  an  assignee 
for  creditors  before  he  has  filedi  an  inven- 
tory and  executed  a  bond  will  ^void  the 
assignment,  although  made  in  accordance 
with  a  parol  agreement  between  the  par- 
ties, entered  into  contemporaneously  with 
the  execution  of  the  deed  of  assignment, 
which  is  valid  on  its  face,  tnat  it  was  for 
the  purpose  of  enabling  the  assignee  to  pre- 
pare an  inventory.  Id. 
Fraud. 

See  also  supra,  19-21. 

For  Editorial  Notes,  see  infra,  X.  §   1. 

48.  When  the  fraudulent  intent  of  an  as- 
signor for  the  benefit  of  creditors  is  estab- 
lished, the  assignment  may  be  set  aside, 
and  creditors  may  then  pursue  their  rem- 
edies as  if  it  had  not  been  made.  Loos  v. 
Wilkinson,  110  N.  Y.  195,  18  N.  E.  99, 

1:250 

49.  Frauds  upon  the  assignment  by  the 
{assignor  or  assignee  do  not  necessarily 
avoid  the  assignment,  but  may  be  con- 
sidered in  determining  whether  there  was 
fraud   in   the   assignment.  Id. 

50.  A  creditor  of  an  assignor  for  the  bene- 
fit of  creditors  cannot  assail  prior  trans- 
fers of  property  made  by  him,  unless  he  also 
eflFectually  assails  the  assignment;  but  this 
may  all  be  done  in  the  same  action.  Id. 
Matters  as  to  schedules. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

260,  261. 
See  also  supra,   12a,  21,  44. 
For  Editorial  Notes,  see  infra,  X,  §  3. 

51.  An  assignment  preferring  some  credit- 
ors whom  it  fails  to  specify  either  in  the 
instrument  itself  or  in  an  indexed  schedule 
is  void  upon  its  face.  Wolf  v.  O'Connor,  88 
Mich.  124,  50  N.  W.  118,  13:  693 

52.  Where  the  schedules  required  by  stat- 
ute are  in  fact  attached  to  a  deed  of  as- 
signment, and  there  is  no  reason  to  con- 
clude or  even  suspect  that  they  were  not 
attached  at  the  time  the  assignment  was 
executed,  failure  of  the  writings  to  declare 
expressly  on  their  face  that  they  were  then 
attached  is  of  no  consequence.  Drucker 
V.  Wellhouse,  82  Ga.  129,  8  S.  E.  40, 

2:  328 
Taking  effect;   acceptance. 
For  Editorial  Notes,  see  infra,  X.  §  2. 

53.  Failure  to  acknowledge  and  record  an 
assignment   for  creditors  as   required   by   a 


statute  which  contains  no  negative  words 
declaring  it  void  for  such  failure  will  not 
prevent  the  assignment  from  becoming 
operative.  Farwell  v.  Cohen,  138  111.  216, 
28   N.   E.   35,   32   N.   E.   893,  18:  281 

54.  An  assignment  for  creditors  takes  ef- 
fect, as  to  all  persons,  from  the  time  of  its 
delivery  to  the  probate  court  of  the  county 
in  which  the  assignor  resides  at  the  time  of 
its  execution,  ic  is  not  necessary  that  it 
be  also  filed  for  record  with  the  recorder  of 
deeds.  Betz  v.  Snyder,  48  Ohio  St.  492,  28 
N.  E.  234,  13:  235 

55.  A  deed  in  trust  for  the  benefit  of 
creditors  vests  the  title  of  personal  prop-, 
erty  in  the  trustee,  under  Md.  Code,  art.  16, 
§  205,  when  the  deed  is  recorded  and  the 
bond  filed  in  the  coimty  in  which  the  grant- 
or resides;  and  such  title  is  not  affected 
by  the  fact  that  the  bond  is  not  filed  in 
another  county  in  which  real  estate  of  the 
grantor  is  located.  Fidelity  &  D.  Co.  v. 
Haines,  78  Md.  454,  28  AtL  393,  23:  652 

56.  To  make  a  deed  of  trust  valid  against 
an  attachment  of  the  property,  it  must 
have  been  accepted  by  some  of  ,  the  bene- 
ficiaries before  the  attachment  was  levied. 
Tittle  V.  Vanleer,  89  Tex.  174,  34  S.  W.  715, 

37:  337 


VI.   Property   Included. 

Property  or  Title  Taken  by  Assignee,  see 

supra.  III.  b,  2. 
See  also  supra,  42-45,  55. 
For  Editorial  Notes,  see  infra,  X.  §  4. 

67.  A  deed  assigning  for  creditors  all  the 
property,  estate,  and  assets  whatsoever  of 
a  late  firm,  sufficiently  conveys  all  the  real 
estate  of  the  firm,  whether  standing  in 
the  name  of  the  firm  or  of  the  individual 
partners  or  either  of  them.  Riley  v.  Carter, 
76  Md.  581,  25  Atl.  667,  19:  489 

58.  A  claim  accruing  after  an  assign- 
ment for  creditors  on  a  contract  previously 
made  by  the  assignor  is  assets  in  the  hands 
of  the  assignee  only  to  the  extent  of  the 
balance  due  after  deducting  a  claim  against 
the  assignor  which  was  a  valid  existing 
set-off  at  the  time  of  the  assignment.  Re 
Hatch,  155  N.  Y.  401,  50  N.  E.  49,     40:  664 

59.  The  assignees  of  an  insolvent  banking 
firm,  the  surviving  partner  of  which  has 
made  an  assignment,  cannot  hold  as  assets 
of  the  firm  the  proceeds  of  checks  and 
drafts  which  were  in  the  mails  at  the  time 
of  the  death  of  the  other  partner,  one  morn- 
ing before  banking  hourjj,  and  were  received 
by  the  survivor  the  same  day,  and  paid 
by  charging  them  against  the  accounts  of 
the  drawers,  the  proceeds  being  placed  to 
the  credit  of  the  bank  which  sent  them. 
First  Nat.  Bank  v.  Payne,  85  Va.  890,  9 
S.   E.    153,  3:  284 

60.  A  claim  upon  an  employer's  liabil- 
ity policy  does  not  pass  to  an  assignee  in 
insolvency  proceedings  under  an  assignment 
by  the  employer,  before  any  action  has  been 
commenced  against  him  by  the  employee 
who  was  injured.  Anoka  Lumber  Co.  v.  Fi- 
delity &  C.  Co.  63  Minn.  286,  65  N.  W.  353, 

30:  689 


158 


ASSIGNMENTS  FOR  CREDITORS,  VII.,  a.  b. 


61.  A  trademark  whica  is  not  strictly  per- 
sonal, such  as  the  words  "King  Bee,"  as  ap- 
plied to  manufactured  tobacco,  will  pass  by 
an  assignment  of  all  of  the  owner's  prop- 
erty for  benefit  of  creditors,  under  state 
insolvency  laws,  although  the  same  is  regis- 
tered in  the  United  States  patent  office  un- 
der the  act  of  Congress  of  March  3,  1881. 
Sarrazin  v.  W.  R.  Irby  Cigar  &  T.  Co.  35 
C.  C.  A.  496,  93  Fed.  624,  46:  541 

62.  Estates  of  a  debtor  and  his  wife,  by 
entireties,  except  her  right  of  survivorship, 
pass  by  his  assignment  of  all  his  estate, 
real  and  persqnal,  for  the  benefit  of  credi- 
tors, under  statutes  making  everything  pass 
which  might  oe  oaken  in  execution  against 
him,  and  providing  that  neither  the  wife's 
separate  property  uor  its  products  shall  be 
liable  for  his  debts.  Laird  v.  Perry,  74 
Vt.  454,  52  Atl.  1040,  59:  340 
Property  held  in  trust 

63.  An  interest  in  property  held  in  trust 
for  a  person  during  life,  under  a  will  pro- 
viding that  no  part  of  it  shall  be  "as- 
signable, .  .  .  or  in  any  way  liable  to 
be  taken,"  for  any  of  his  debts  or  liabili- 
ties before  payment,  conveyance,  or  transfer 
to  him,  does  not  pass  to  his  assignee  in  in- 
solvency, under  Mass.  Pub.  Stat.  chap.  157, 
§  44,  as.  limited  by  §  46,  since  s.  eh  inter- 
est is  not  property  which  the  debtor  "could 
have  lawfully  sold,  assigned,  or  conveyed, 
or  which  might  have  been  taken  upon  exe- 
cution." Billings  V.  Marsh,  153  Mass.  311, 
26  N.  E.  100,  10:  704 

64.  Property  held  upon  trusts  for  uses 
of  public  worship,  etc.,  by  the  archbishop 
does  not  pass  to  his  assignee  in  insolvency 
l)y  a  deed  of  assignment  made  in  his  in- 
dividual capacity  for  the  payment  of  his 
individual  debts.  Such  an  assignment 
passes  to  the  assignee  no  better  or  dif- 
ferent title  to  the  assigned  property  than 
the  assignor  held;  and  cestuis  que  trust 
may  assert,  as  against  the  a8signe,e  and  the 
creditors  of  the  assignor,  the  same  rights 
that  they  could  against  the  latter  if  no  as- 
signment had  been  made.  Mannix  v.  Pur- 
cell,  46  Ohio  St.  102,  19  N.  jbJ.  572,        2:  753 

65.  Where  such  trustee  has  made  ad- 
vances from  his  own  private  means,  other- 
wise than  as  donations,  to  assist  in  buying 
or  improving  the  trust  property,  he  has  a, 
claim  upon  the  particular  property  so  pur- 
chased or  improved,  which  passes  to  his 
assignee  in  insolvency  as  individual  as- 
sets; and  in  a  proceeding  by  the  assignee  to 
subject  the  assets  of  his  assignor  to  the 
payment  of  his  debts,  it  is  competent  for 
the  court  to  order  an  accounting  of  the 
advances  so  made,  with  a  view  to  subject- 
ing such  property  to  the  satisfaction  of 
such  claim.  Id. 


VTL  Preferences  by  Insolvent, 
a.  In  General. 
Priority  of  State,  see  infra,  82. 


Necessity  of  Surrender  of  Preferences 
Made  by  Bankrupt,  see  Bankruptcy, 
40-47. 

Effect  of  Statute  as  to,  on  Right  to  Pre- 
fer Creditors,  see  Fraudulent  Convey- 
ances, 24,  25. 

See  also  supra,  5a. 

For  Editorial  Notes,  see  infra,  X.  §  8. 

66.  Any  preference  in  a  deed  of  trust 
for  the  benefit  of  all  creditors  must  be 
plainly  expressed.  Goodman  Bros.  &  Co.  v. 
Henry,  42  W.  Va.  526,  26  S.  E.  528,  35:  847 
Effect  on  assignment. 

See  also  supra,  41. 

For  Editorial  Notes,  see  infra,  X.  §  8. 

67.  That  one  of  the  preferred  debts  of  a 
firm  was  a  due-note  payable  to  the  attor- 
ney who  drafted  the  assignment,  and  was 
given  to  him  by  the  firm  "for  services 
rendered  in  drawing  this  deed  of  assign- 
ment, and  for  ad,vice  and  counsel  in  refer- 
ence thereto,  and  services  to  be  rendered 
hereafter  for  the  purpose  of  prgtecting  and 
upholding  this  assignment,"  does  not  render 
tiie  assignment  void  per  se.  If  there  was 
actual  fraud,  the  fraud  is  matter  for  proof 
aliunde,  and  if  no  fraud  was  intended,  but 
the  amount  of  the  note  is  more  than  the 
services  rendered  and  to  be  rendered  are 
worth,  or  if  the  assignee  should  not  ac- 
cept the  attorney  as  his  counsel  in  behalf 
of  the  creditors,  or  should  not  need  his 
serArices,  a  proper  deduction  from  the 
amount  can  be  made,  and  the  note  be  left 
to  stand  gooa  against  the  assets  for  the 
balance  only.  Drucker  v.  Wellhouse,  82  Ga. 
129,  8  S.  E.  40,  2:  328 

68.  An  assignment  for  benefit  of  credit- 
ors will  be  annulled  by  the  preference 
therein  of  an  usurious  debt,  where  there  is 
a  statutory  right  of  action  to  recover  back 
the  entire  interest  when  usury  has  been 
paid.  Hiller  v.  Ellis,  72  Miss.  701,  18  So. 
95,  41 :  707 

b.  Validity  of. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

257-259. 
See  also  supra,  51. 
For  Editorial  Notes,  see  infra,  X.  §  8. 

69.  When  a  conveyance  of  property  is 
made  in  good  faith  directly  to  a  creditor 
in  absolute  executed  payment  of  a  debt, 
the  transaction  lacks  the  essential  element 
of  a  trust,  and  cannot  be  brought  within 
the  range  of  a  law  denying  preferences  in 
insolvent  assignments.  Sandwich  Mfg.  Co. 
V.  Max,  5  S.  D.  125,  58  N.  W.  14,.      24:  524 

70.  A  bank  president  who  has  induced  the 
cashier  to  loan  money  to  a  minor  whereby 
it  is  lost,  promising  that  it  shall  be  repaid 
before  money  which  the  minor  owes  him 
individually,  will  not,  as  against  the  bank, 
be  permitted  by  a  court  of  equity  to  take 
advantage  of  a  priority  in  his  favor  in  an 
assignment  by  the  minor  for  the  benefit  of 
creditors.  Brown  v.  Farmer's  &  M.  Nat. 
Bank,  88  Tex.  265,  31  S.  W.  285,  33:  359 

71.  Assignments  to  a  mortgagee  of  bills, 


ASSIGNMENTS  FOR  CREDITORS,  VIII.    a. 


159 


notes,  and  accounts,  being  the  proceeds  of 
the  sales  of  the  mortgaged  property,  can- 
not be  held  to  be  made  in  fraud  of  the 
South  Carolina  assignment  act,  although 
made  within  the  prohibited  time  before  a 
general  assignment,  where  the  mortgage 
was  made  previous  to  that  time  and  was 
valid  under  such  act.  Akers  v.  Rowan,  33 
S.  C.  451,  12  S.  E.  165,  10:705 

By  mortgage  or  bill  of  sale. 
Following  State  Decisions  as  to,  see  Courts, 
551. 

72.  A  mortgage  of  real  property,  which 
has  not  been  deposited  for  record  \Yith  the 
recorder  of  the  proper  county  before  an 
assignment  of  the  property  by  the  mort- 
gagor for  the  benefit  of  his  creditors  takes 
feffect,  is  not  a  valid  lien  upon  the  property, 
as  against  the  assignee  or  the  creditors;  nor 
does  it  become  so  by  being  subsequently 
recorded.  Betz  v.  Snyder,  48  Ohio  St.  492, 
28  N.  E.  234,  13:  235 

73.  A  mortgage  given  in  renewal  of  a 
prior  mortgage  is  not  invalid  as  an  unlaw- 
ful preference,  under  the  South  Carolina  as- 
signment law,  if  the  prior  mortgage  was 
valid  under  such  law;  it  is  merely  a  change 
of  securities.  Akers  v.  Rowan,  33  S.  C.  451, 
12  S.  E.   165,  10:  705 

74.  A  mortgage  giving  a  preference,  made 
by  an  insolvent  debtor  within  ninety  days 
before  a  general  assignment,  is,  under  the 
South  Carolina  assignment  act,  a  nullity, 
having  no  vitality  or  lien.  Id. 

75.  A  statute  prohibiting  preferences  in 
an  assignment  for  the  benefit  of  creditors 
is  not  violated  by  the  execution  of  chattel 
mortgages  covering  substantially  all  of  the 
debtor's  property  to  secure  only  a  portion 
of  his  creditors,  even  if  the  debtor  knew 
that  the  consequence  would  be  to  prevent 
his  continuing  business,  and  the  mortgagees 
at  once  took  possession  and  commenced 
foreclosure.  Cutter  v.  Pollock,  4  N.  D.  205, 
59  N.  W.  1062,  25:  377 

76.  An  agreement  for  compromise  between 
a  debtor  and  his  creaitors,  between  the  date 
of  the  execution  of  a  chattel  mortgage  on 
his  stock  and  an  assignment  by  him  for 
benefit  of  creditors,  will  prevent  the  mort- 
gage being  a  part  of  the  assignment,  al- 
though he  said  that  if  he  was  attached  he 
must  executa  an  assignment,  and  his  in- 
ability to  carry  out  his  part  of  the  com- 
promise agreement  resulted  in  an  attach- 
ment and  assignment.  Sabin  v.  Wilkins,  31 
Or.  450,  48  Pac.  425,  37:  465 

77.  A  chattel  mortgage  executed  and  de- 
livered, no  matter  how  short  a  time  be- 
fore the  making  of  an  assignment  for  credit- 
ors, is  not  invalid  although  the  mortgagor 
contemplated  the  making  of  the  assignment, 
where  the  mortgagee  acted  in  good  faith 
in  demanding  and  accepting  'the  mortgage, 
and  without  knowledge  of  the  mortgagor's 
purpose  to  make  an  assignment.  Otten- 
berg  V.  Corner,  40  U.  S.  App.  320,  76  Fed. 
263,  22  C.  C.  A.   163.  34:  620 

78.  A  creditor  who  does  not  know  of  his 
debtor's  intention  to  make  a  general  assign- 
ment for  creditors  at  the  time  of  taking  a 


bill  of  sale  for  an  honest  debt  is  not  af- 
fected by  such  intention,  so  as  to  make  the 
transfer  a  part  of  the  subsequent  assign- 
ment and  bring  it  within  the  New  York 
act  of  1887  restricting  preferences  in  such 
assignments.  Manning  v.  Beck,  129  N.  Y.  1, 
29  N.  E.  90,  14:  198 

79. -A  bill  of  sale  which  constitutes  a 
volimtary  transfer  or  assignment  of  a  stock 
of  goods  for  creditors,  securing  to  one  of 
them  a  preference  over  all  others,  is  in  vio- 
lation of  Wis.  Rev.  Stat.  §  1693a.  Fuller  & 
F.  Co.  V.  McHenry,  85  Wis.  573,  53  N.  W 
896,  18:  512 

By  confession  of  judgment. 

80.  A  confession  of  judgment,  made  in 
contemplation  of  a  general  assignment  for 
creditors  which  immediately  follows,  must 
be  treated  as  part  of  the  assignment  in 
respect  to  prohibited  preferences.  Berger 
V.  Varrelmann,  127  N.  Y.  281,  27  N.  E.  1065, 

12:  808 

81.  The  lack  of  the  knowledge  of  a  credit- 
or, on  receiving  a  confession  of  judgment, 
that  his  debtor  intends  immediately  to 
make  a  general  assignment,  does  not  ex- 
empt the  judgment  from  the  provisions  of 
the  New  York  statute  in  respect  to  prefer- 
ences in  such  assignments.  Id. 


Vni.  Rights,     Duties,     and     Liabilities     of 
Creditors;  Priority  and  Release  of  Claims. 

a.  In  General. 

Right  to  Proceeds  of  insurance  by  As- 
signee, see  Attachment,  26. 

Priority  of  Claim  against  Receivers,  see  Re- 
ceivers, III. 

For  Editorial  Notes,  see  infra,  X.  §  6. 

82.  The  right  of  a  state  or  a  municipal- 
ity, if  any  exists,  to  priority  or  preference 
of  payment  from  an  insolvent's  estate,  can- 
not be  asserted  after  a  general  assignment 
for  creditors,  which  passes  the  title.  State 
V.  Foster,  5  Wyo.  199,  38  Pac.  926,  29:  226 

83.  Creditors  for  whose  benefit  the  debt- 
or has  made  an  assignment  of  all  his  prop- 
erty are  entitled,  at  all  reasonable  times  and 
in  all  reasonable  ways,  to  be  informed  of 
the  progress  of  affairs  and  the  state  of  the 
business.  State  ex  rel.  Fourth  Nat.  Bank 
V.  Johnson,  103  Wis.  591,  79  N.  W.  1081, 

51:  33 
Rights  of  creditor  attacking  assignment. 
Right  to  Share  in  Distribution,  see  Election 

of  Remedies,  36. 
For  Editorial  Notes,  see  infra,  X.  §  6. 

84.  While  a  creditor  is  under  no  obliga- 
tion to  accept  the  provisions  of  an  assign- 
ment made  for  his  benefit,  yet  he  cannot 
hold  an  assignment  good  in  part  and  bad 
in  part;  nor  can  he  receive  the  benefits  of 
the  assignment  while  He  is  in  actual  hostil- 
ity to  it,  claiming  in  the  courts  that  it  is 
fraudulent  and  void,  and  refusing  to  accept 
its  benefits.  McLaughlin  v.  Park  City  Bank, 
22  Utah,  473,  63  Pac.  589,  64:  343 


160 


ASSIGNMENTS   FOR  CREDITORS;  VIII.  a. 


85.  A  creditor  is  not  entitled  to  two  in- 
consistent, adverse,  or  c  nflicting  rights,  and 
if  he  accepts  the  benefit  of  an  assignment 
knowing  the  facts,  he  cannot,  ordinarily, 
impeach  or  repudiate  it  thereafter  on  the 
ground  that  it  is  illegal  and  fraudulent;  nor 
can  he.  having  repudiated  it,  take  under  its 
provisions  as  other  creditors  who  have  ac- 
cepted  it.  Id. 

86.  WTiile  an  assignee,  or  a  receiver  as 
his  successor,  holds  the  assigned  property  in 
trust  for  such  creditors  as  accept  the  provi- 
sions of  the  assignment,  the  trust  relation 
cannot  exist  between  the  receiver  and  a 
creditor  who  repudiates  the  assignment  as 
well  as  the  trust  relation.  Id. 
Rights  of  creditor  unsuccessfully  defending 

assignment. 

87.  A  preferred  creditor,  who  has  been 
defending  an  assignment  successfully  at- 
tacked as  fraudulent,  cannot  share  pro  rata 
with  the  successful  creditors  in  the  pro- 
ceeds of  the  property  reached.  Hancock  v. 
Wooten,  107  N.  C.  9,  12  S.  E.  199,        11:  466 

88.  An  order  in  an  action  by  creditors 
to  set  aside  an  assignment  by  their  debtor 
as  fraudulent,  which  requires  all  creditors 
to  come  in  and  make  themselves  parties  to 
the  action,  cannot  be  extended  so  as  to  per- 
mit creditors  who  joined  with  the  assignee 
in  endeavoring  to  uphold  the  assignment  to 
come  in  after  the  assignment  has  been  set 
aside,  and  prove  their  claims  before  the  re- 
ceiver so  as  to  share  pro  rata  with  the 
creditors  who  attacked  the  assignment.  Id, 
Right  to  have  assignee  account. 

89.  Any  creditor  for  whose  benefit  a  debt* 
or  has  made  a  general  assignment  of  hds 
property  may  demand  that  the  assignee 
make  and  file  an  account  answering  the  re- 
quirements of  the  statute,  before  he  is  re- 
quired to  make  special  objection  to  any  par- 
ticular items  of  such  account.  State  ex 
rel.  Fourth  Nat.  Bank  v.  Johnson,  103  Wis. 
591,  79  N.  W.  1081,  51:  33 

90.  A  trial  judge  has  no  discretionary 
power  to  deny  creditors  for  whose  benefit 
a  general  assignment  has  been  made  the 
right  to  an  account  '  by,  and  examination 
of,  the  assignee,  given  by  statute,  which  is 
beyond  the  control  of  mandamus.  Id. 

91.  A  general  assignee  for  benefit  of 
creditors  of  one  who  purchased  a  stock  of 
goods,  upon  the  agreement  to  pay  the  debts 
of  the  vendor  out  of  the  purchase  price, 
does  not  take  any  of  the  property  impressed 
with  a  trust  in  favor  of  the  creditors  of 
such  vendor,  which  they  can  enforce  in 
priority  to  claims  of  other  creditors  of  the 
assignor;  but,  as  creditors  of  the  assignor, 
they  may  compel  the  assignee  to  show 
whether  any  assets  came  into  his  hands 
which  are  applicable  to  their  claim.  Voor- 
hees,  Miller,  &  Co.  v.  Porter,  134  N.  C.  591, 
47  S.  E.  31,  65:  736 

92.  If  the  purchaser  of  a  stock  of  goods, 
wlio  undertakes  to  pay  the  debts  of  the 
seller  out  of  the  purchase  price,  makes  a 
general  assignment  for  benefit  of  his  credit- 
ors  to   one    who   has   guaranteed    perform- 


ance of  his  undertaking,  creditors  of  the 
original  vendor  may  bring  suit  against  the 
assignee,  either  as  such,  or  as  guarantor, 
or  in  both  capacities,  and  compel  him  to 
show  what  fimds  came  to  his  hands  which 
are  applicable  to  payment  of  their  claims. 

Id. 
Liability  for  goods  purchased  by  trustee. 

93.  Creditors  who  join  with  an  insol- 
vent debtor  in  his  deed  of  trust  by  which  a 
trustee  is  to  continue  the  business  as  long 
as  he  shall  deem  it  for  the  interest  of  the 
creditoi^  to  do  so,  with  the  entire  manage- 
ment and  control  of  the  business,  and,  when 
he  deems  it  best,  to  sell  the  property  and 
pay  the  claims  of  the  creditors  from  the  pro- 
ceeds,— are  not  the  real  proprietors  of  the 
business,  so  as  to  become  liable  for  goods 
purchased  by  the  trustee  in  the  prose- 
cution of  the  business,  but  their  relation 
to  him  is  that  of  beneficiary  and  trustee, 
and  not  that  of  principal  and  agent.  Wells- 
Stone  Mercantile  Co.  v.  Grover,  7  N.  D.  460, 
75  N.  W.  911,  41:252 
Trusts;*  liens. 

See  also  supra,  86. 

94.  No  trust  can  be  imposed  upon  funds 
or  goods  in  the  hands  of  an  assignee  for 
creditors,  even  if  they  were  held  by  the 
assignor  as  an  agent,  unless  they  were  kept 
separate  and  can  be  identified.  Arbuckle 
Bros.  v.  Kirkpatrick,  98  Tenn.  221,  39  S. 
W.  3,  36:  285 

95.  The  proceeds  of  bonds  belonging  to  a 
decedent's  estate,  which  had  been  sold  un- 
der a  power  of  attorney  from  the  adminis- 
tratrix, can  be  recovered  by  her  from  the 
estate  of  an  insolvent  broker  who  has  re- 
ceived them.  Skiflf  v.  Stoddard,-  63  Conn. 
198,  26  Ati.  874,  21:102 

96.  Where, an  executor  and  trustee  under 
a  will  renders  a  final  account  and  charges 
himself  with  a  certain  amount  as  retained 
by  him  to  pay  annuities,  and  never  sets 
this  sum  apart,  but  uses  it  in  his  business, 
together  with  his  own  money,  and  after- 
wards makes  an  assignment  for  benefit  of 
creditors,  the  annuitants  cannot  impress  the 
funds  in  the  hands  of  the  assignee  with  a 
trust  for  the  payment  of  their  annuities. 
Little  v.  Chadwick,  151  Mass.  109,  23  N.  E. 
1005,  7:570 

97.  Moneys  collected  by  the  trustees  of  an 
insolvent,  as  the  proceeds  of  sales  made  by 
him  as  a  commission  merchant,  and  which 
are  capable  of  identification,  belong  to  the 
consignor.  Drovers'  &  M.  Nat.  Bank  v. 
Roller,  85  Md.  495,  37  Atl.  30,  36:  767 

98.  The  general  assets  in  the  hands  of  an 
insolvent's  trustee  are  not  chargeable  with 
a  lien  in  favor  of  one  for  whom  the  insol- 
vent has  sold  goods  on  commission,  when 
the  proceeds  have  been  collected  and  spent 
or  dissipated  by  the  insolvent  before  the 
trustee   is   appointed.  Id. 

99.  Notice  to  an  assignee  for  creditors  be- 
fore execution  of  the  assignment  is  not  nec- 
essary to  make  a  lien  on  the  assigned  prop- 
erty valid  as  against  him,  if  notice  is  filed 
as  required  bv  statute.  Lockett  v.  Rob- 
inson, 31   Fla.   134,   12  So.  67,  20-  67 


ASSIGNMENTS  FOR  CREDITORS,  VIII.  b.— X. 


161 


b.  Release  of  Claims. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
254. 

Estoppel  by  Accepting  Dividend,  see  Es- 
toppel, 30. 

Before  Sharing  in  Benefits  of  Receivership, 
see  Receivers,  79. 

See  also  supra,  42,  43;  Principal  and  Agent, 
16. 

100.  A  statute  providing  for  the  release 
of  a  claim  in  full  by  a  creditor  who  accepts 
a  dividend  under  an  assignment  cannot  ap- 
ply to  the-  state  or  a  municipality,  under 
a  constitutional  provision  that  such  lia- 
bility can  be  extinguished  only  by  payment 
into  the  proper  treasury.  State  v.  Foster, 
6  Wyo.  199,  38  Pac.  926,  29:  226 

101.  The  release  by  a  creditor  of  all  per- 
sonal claim  against  an  assignor  fo»  creditors 
who  makes  a  preference  in  favor  of  such 
creditor  will  not  make  the  creditor  a  pur- 
chaser of  the  assignment  if  the  assignor 
was  hopelessly  insolvent  and  the  release 
was  executed  to  uphold  the  assignment,  and 
not  to  procure  either  it  or  the  preference. 
ffiUer  V.  Ellis,  72  Miss.  701,   18  So.   95, 

41:  707 

102.  The  release  by  creditors  of  personal 
claims  against  the  assignor  in  consideration 
of  a  preference  in  their  favor  in  an  assign- 
ment for  benefit  of  creditors  does  not • en- 
title the  assignee  to  hold  the  assigned  prop- 
erty as  a  purchaser  for  value  for  the  satis- 
faction of  such  claims,  if  he  was  a  party 
to  a  fraudulent  preference  which  annulled 
the  assignment.  Id. 

103.  A  statute  requiring  a  creditor  ac- 
cepting a  dividend  from  an  estate  assigned 
for  benefit  of  creditors  to  release  the  assign- 
or from  further  liability  is  not,  as  applied 
to  a  partnership  assignment,  limited  in  its 
effect  to  liability  of  the  partnership  alone, 
but  includes  individual  liability  of  the 
partners  as  well.  McCord-Brady  Co.  v. 
Mills,  8  Wyo.  258,  56  Pac.  1003,       46:  737 


IX.  Liability  of  Assignor. 

104.  An  insolvent  who  makes  a  deed  of 
trust  for  creditors  is  not  liable  on  con- 
tracts made  by  the  trustee  in  administer- 
ing the  trust.  Wells-Stone  Mercantile  Co. 
▼.  Grover,  7  N.  D.  460,  75  N.  W.  911, 

41 :  252 


X.    Editorial  Notes. 

See  also  Conflict  of  Laws,  X.  |  16. 

As  to  Insolvency,  Generally,  see  Insolvency, 
VI. 

As  to  Bankruptcy,  see  Bankruptcy,  V. 

§  I.  Generally. 

For  Conflict  of  Laws  as  to,  and  Effect  of 
Foreign  Assignments,  see 
Conflict  of  Laws,  X.  §  16. 

What  operates  as.     10:  707.* 

Assignment  by  bill  of  sale.     10:  707.* 
LJl.A.  Dig.— 11. 


Assignment   by    mortgage.     10:  708.* 
By    chattel    mortgage.     10:  709.* 
Is  a  preference  by  mortgage  or  sale  an  as- 
signment    for     creditors. 
37:  337. 
First  and  last  days  in  computing  time  in 

matters  of.     49:  240. 
Garnishment  of  claim  to  surplus  under  as- 
signment     for      creditors. 
59:  372. 
By   firm  or  partner.     2:  328;*   6:569;*    10: 

521.* 
By  surviving  partner.     6:  569.* 
Power  of  one  partner  to  assign  partnership 
real  estate  for  benefit  of 
creditors.     28:  97. 
Necessity    of    participation    of   assignee    or 
beneficiaries    in    fraud    of 
assignor  to  invalidate  as- 
signment.   32:  44. 
§  2.  Necessity  of  acceptance. 
Assent  and  presumption.     24:  369. 

General  doctrine.     24:  369. 
Assent  presumed.     24:  370. 
In  general.    24:  370. 
Statutory  presumption.     24:  373. 
Extent  of  presumption.    24:  374. 
Rebuttal  of  presumption.     24:  374. 
In  general,    24:  374. 
Conditions    imposing    a    release.      24: 

375. 
Other  conditions.     24:  375. 
Assignments  hindering,  delaying,  or  de- 
frauding    creditors.       24 : 
376. 
Assignment    direct    to    creditors.      24: 
376. 
Express  assent.    24:  376. 
Sufficiency  of  assent.     24:  378. 
Time  of  assent.    24:  379. 
Effect  of  kssent.     24:  379. 
In  general.    24:  379. 
After  attack.     24:  380. 
Effect  of  assignment.    24:380. 
The  Massachusetts  doctrine.     24:  381. 
Principles  of.     24:  381. 
Time  of  assent.     24:  384. 
Comity.     24:  384. 
English  decisions.     24:  384. 
§  3.  Schedule. 
Annexing  schedule;    sufficiency  Of  schedule 

and  affidavit.     12:  809.* 
Necessity  of  annexing  schedule  to   assign- 
ment.   3:  139;*  6:  109.* 
Necessity  that   schedule  be   full   and   com- 
plete.    3:  140;*  6:  109.* 
Necessity   that  schedule  be   sworn   to.     3: 

140.* 
Effect  of  defective  affidavit  to  schedule.  3: 

140.* 
Fraudulent     assignment     for     creditors     as 
ground      of      attachment. 
30:  480. 
To  whom  notice  of  protest  or  nonpayment 
of  bill  or  note  should  be 
given    after    appointment 
of  assignee.     61:  900. 
§  4.  What  passes  by;  assets. 
What  does  not  pass.     3:  822.* 
Whether   cause   of  action   for  personal   in- 
juries  passes  to  assignee. 
44:  180. 


162 


ASSIGNMENTS  OF  ERROR— ASSOCIATIONS. 


Life  insurance  as  assets  of  bankrupt.     50: 

33. 
Transfer    of   trademark   by    insolvency    as- 
signment.   46:  541. 
Effect  of  assignment  by  husband  upon  wife's 

right  of  dower.     18:  77. 
§  5.  As  affecting  right  of  set-off. 
Right   of  debtor  of   insolvent   bank   to   set 

off  demand.     2:  273.* 
Right  of  bank  to  set  off  unmatured  claim 
against  deposit  account  of 
insolvent  debtor.     15:  710. 
Assignee's  right  of  set-off  in  case  of  bank- 
ruptcy.   55:  54. 
Right  to  set  off  insolvent's  claim  in  hands 
of   assignee   for   creditors. 
23:  313. 
Right   to  set  off,  against  insolvent,  claims 
purchased      after      insol- 
■  vency.     21 :  280. 
Effect  of  immaturity  of  claim  at  time  in- 
solvency occurs  upon  right 
of  set-off.     17:  456. 
§  6.  Rights  and  duties  of  creditors. 
Attachment    of   property    in    hands    of    as- 
signee  for   creditors.     26: 
595. 
Rule  of  distribution  of  estate  among  cred- 
itors.    8:  458.* 
Right  to  dividends.     11:  327.* 
Right   of  creditor  to  participate  under  as- 
signment or  deed  of  trust 
for  the   benefit   of  credit- 
ors whicli  he  has  repudi- 
ated.   54:  343. 
When  creditor  has  successfully  assailed  as- 
signment or  deed  of  trust. 
o4:   343. 
When    creditor's    attack   on    assignment    or 
deed   of  trust  has  failed. 
54:   345. 
When    creditor's    attack    on   assignment    or 
deed  of  trust  is  still  pend- 
ing     and      undetermined. 
54:  350. 
§  7.  Rights  and  duties  of  assignee. 
Right  of  assignee  for  creditors  to  compro- 
mise claims.     23:  578. 
Statutory  provisions.     23:  579. 
Duty  or  power  of  assignee  as  to  fraudulent 

transfers.      5:  140.* 
Right  of  assignee  fo-  creditors  to  question 
validity      of     attachment. 
35:  776. 
Injunction  in  favor  of  assignee  for  creditors 
to  prevent  execution  sale. 
30:  124. 
Inability  for  rent  of  premises  occupied  by 
receiver    or    assignee    for 
creditors.     59:  673. 
Assignee  for  creditors  as  real  party  in  in- 
terest    by     whom    action 
must  be  brought.    64:  610. 
Collection  of  notes  by  assignee  of  creditors 
of    mutual    fire    insurance 
company.     32:  486. 
Right  of  assignee  to  have  judgment  against 
assignor    set    aside.      54: 
762. 
Power  to  accept  notice  of  protest.     61:  900. 
Bond  of  assignee.     7:403;*   11:852.* 


§  8.  Preferences,  generally. 

Right  of  insolvent  debtor  to  make  prefer- 
ences,  generally.      11:466. 

JPreference  by  mortgage  or  sale  as  an  as- 
signment.    37:  337. 

Necessity  of  naming  preferred  creditors  in 
an  assignment.     8:  693. 

Assignment  with  preferences.  6:  571;  12: 
808. 

In  case  of  partnership  assignment.  10: 
523. 

Of  claims  of  laborers.     18:  305. 

§9.  —  Effect  of  preferring  usurious  debt  in 
assignment. 

General  doctrine.    41:  707. 

Deed  of  assignment  rendered  void.     41:  708. 

Preference  of  actual  debt  sustained,  but 
usury  rejected.    41:709. 

Preference  of  usurious  debt  sustained  gen- 
erally.   41:    710. 

Who  may,  and  who  may  not,  urge  the  usu- 
rious character  of  the  debt 
preferred.     41:  711. 


ASSIGNMENTS  OF  ERROR. 

On  Appeal,  see  Appeal  and  Error,  IV.  p. 
On   Petition   for   Certiorari,   see   Certiorari, 
36. 


As 


ASSISTANT  ROAD  MASTER. 

Fellow  Servant,   see  Master  and  Serv- 
ant, 576,  577. 


ASSOCIATIONS. 


I.  In  General. 
II.  Members. 

a.  In  General. 

b.  Right     to 

sion. 
III.  Editorial  Notes. 


Membership ;      Expul- 


Note  by  Member  of,  see  Bills  and  Notes,  22. 

Note  by.  Effect  of  Seal  on,  see  Bills  and 
Notes,  57. 

As  Beneficiary  or  IVustee  of  Charity,  see 
Charities. 

Refusal  of,  to  Deal  with  Person,  see  Com- 
pulsory Service,  2,  3. 

Illegal  Combinations  of,  see  Conspiracy. 

Boycott  by,  see  Conspiracy,  I.  c,  2. 

By-Law  to  Prevent  Competition,  see  Con- 
spiracy,  155. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  III.  a,  3. 

Of  Plumbers,  Matters  Not  Germane  to  Pur- 
pose of  Association,   see   Corporations, 

Jurisdiction  Over,  see  Courts,  I.  d-  VI  8 
3. 

Limitation  of  Action  as  to  Offices  in,  see 
Limitation  of  Actions,  223. 

Quo  Warranto  against,  see  Quo  Warranto,  7. 

Title  of  Statute  as  to,  see  Statutes,  188. 

Benevolent  Societies,  see  Benevolent  Socie- 
ties. 


ASSOCIATIONS,  I.,  II.  a. 


163 


Building  and  Loan  Associations,  see  Build- 
ing and  Loan  Associations. 

C'«nip  Meeting  Associations,  see  Camp  Meet- 
ing Associations. 

Exchanges,  see  Exchanges. 

Investment  Associations,  see  Investment 
Associations;  Receivers,  21. 

.Partnership  Association,  see  Partnership, 
VIIL 

Press  Associations,  see  Press  Associations. 

Railroad  Relief  Associations,  see  Railroad 
Relief  Asociations. 

Religious  Societies,   see  Religious  Societies. 

Syndicate,  see  Syndicate. 


I.    In  General. 

1.  By-laws  of  an  incorporated  nonprofit 
association,  like  those  of  all  other  corpora- 
tions, must  be  limited  to  the  powers  enum- 
erated in  the  charter,  plus  those  necessarily 
implied  from  the  object  of  incorporation. 
Bailey  v.  Master  Plumbers'  Asso.  103  Tenn. 
99,  52  S.  W.  853,  46:561 

2.  A  by-law  of  a  liverymen's  association 
which  binds  the  members  not  to  do  business 
with  any  person  who  does  not  patronize  its 
members  exclusively,  and  prevents  any  of 
them  from  letting  a  hearse  to  a  private  par- 
ty for  a  funeral  where  the  undertaker  in 
charge  of  it  is  reputed  to  patronize  non- 
union members,  or  to  any  person  whose 
family  for  the  occasion  patronizes  a  non- 
union livery, — is  unlawful  as  against  pub- 
lic policy.  Gatzow  v.  Buening,  106  Wis.  1, 
81  X.  W.  1003,  49:  475 

3.  A  by-law  of  a  land  association  to  which 
real  estate  is  conveyed  for  the  purpose  of 
having  it  opened  up  for  building  purposes-, 
enacted  in  accordance  with  its  contract  with 
the  grantor  that  lots  shall  not  be  sold  or 
leased  without  pledge  to  build  speedily,  is 
for  the  benefit  of  the  grantor  and  the  asso- 
ciation, and  may  be  waived  by  them.  Pea- 
body  xieights  Co.  V.  Willson,  82  Md.  186, 
32   Atl.  386,  .   36 :  393 

4.  A  provision  in  a  by-law  of  a  land  as- 
sociation to  which  property  is  conveyed  for 
the  purpose  of  being  opened  up  for  building 
lots,  that  the  houses  shall  be  placed  a  cer- 
tain distance  from  the  street,  and  that  the 
plans  of  houses  shall  be  approved  by  the  di- 
rectors, is  for  the  benefit  of  purchasers,  as 
well  as  of  the  association,  and  cannot  be 
waived  by  the  association.  Id. 

5.  A  camp-meeting  association  which  has 
made  perpetual  leases  of  cottages  on  its 
grounds,  without  any  restriction  except 
that  they  are  "subject  to  such  rules  and 
regulations  as  the  association  may  from 
time  to  time  adopt,"  and  which  also  owns 
a  stxjre  on  the  grounds  which  it  has  leased 
for  a  rental,  cannot  impose  a  revenue  tax 
on  the  business  of  taking  orders  for  fruit, 
groceries,  and  provisions  from  cottagers  up- 
on the  grounds  of  the  association.  North- 
port  Weslevan  Grove  Camp  Meeting  Asso. 
V.  Perkins,  93  Me.  23.5.  44  Atl.  893,  48:  272 
Dissolution;  property  rights. 
Dis-solution  of  Benefit  Societies  see  Benev- 
olent Societies,  V. 


Annulhnent   of   Franchise   of,   see   Corpora- 
tions, 751. 

6.  The  general  assembly  of  an  unincor- 
porated organization  cannot  be  invested  by 
the  constitution  of  the  order  with  govern- 
mental power  which  will  enable  it  by  its 
own  edict,  without  a  hearing,  not  only  to 
dissolve  a  local  assembly,  but  devest  the 
latter  of  its  title  to  property  derived  from 
its  own  members,  and  vest  it  in  itseif. 
Wicks  V.  Monihan,  130  N,  Y.  232,  29  N.  E. 
139,  14:  243 

7.  Furniture  purchased  with  the  proceeds 
of  an  Odd  Fellows  fair,  and  placed  by  the 
committee  of  the  fair  in  the  building  of 
an  Odd  Fellows  hall  association,  which  is 
a  corporation,  can  be  recovered  in  replevin 
by  such  corporation  when  removed  by  the 
trxistees  of  voluntary  associations  called 
"Encampments  of  Odd  Fellows,"  who  leased 
a  portion  of  the  building  and  used  the  fur- 
niture soon  after  it  was  placed  therein, 
where  there  is  nothing  to  show  more  defi- 
nitely any  title  to  the  property.  Odd  Fel- 
lows Hall  Asso.  v.  McAllister,  153  Mass.  292, 
26  N.  E.  862,  11:  172 

8.  The  arbitrary  and  illegal  deposition  of 
the  president  of  a  voluntary  benevolent  as- 
sociation cannot  be  relied  upon  by  him  sev- 
eral months  afterwards  as  a  ground  for 
dissolving  the  association,  if  at  the  time 
he  submitted  to  the  action  without  any  at- 
tempt to  enforce  his  rights  either  under  the 
constitution  of  the  association  or  in  the 
courts  of  law.  Industrial  Trust  Co.  v. 
Green,  17  R.  I.  586,  23  Atl.  914,       17:  202 

9.  A  vote  to  dissolve  a  voluntary  asso- 
ciation is  ineffectual  if  it  is  passed  at  a 
special  meeting  called  by  one  who  has  been 
deposed  from  the  presidency,  and  whose  con- 
tinued claim  to  the  office  is  neither  known 
to  nor  recognized  by  the  society,  and  the 
notices  of  the  meet>ing  do  not  specify  ics 
object.  Id. 


11.  Members, 
a.  In  General. 

As  to  Membership  in  Benefit  Society,  see 
Benevolent  Societies,  IV. 

Estoppel  of  Member  of,  see  Estoppel,  138, 
152. 

Evidence  of  Nonmehibership,  see  Evidence, 
2022. 

In  Exchange  or  Board  of  Trade,  see  Ex- 
changes, 6^10. 

Injunction  against  Illegal  Assessments,  see 
Injunction,  239-241. 

Blacklisting  Member,  see  Libel  and  Slander. 
115. 

Admission  of  Membership,  see  Pleading,  112. 

For  Editorial  Notes,  see  infra.  III. 

10.  The  contractual  relation  between  an 
association  and  one  of  its  members  is  that 
which  exists  by  virtue  of  the  rules  of  the 
association,  and  the  contract  is  not  violated 
so  long  as  the  association  acta  towards  him 
in  accordance  with  those  rules.  Lawson  v. 
Hewell,  118  Cal.  613,  50  Pac.  763,     49:  400 

11.  Rules  enacted  by  a   voluntary   asso- 


164 


ASSOCIATIONS,    II.  b. 


ciation  for  the  government  of  its  members 
must  be  conformed  to  by  it  in  all  matters 
relating  to  it  in  disciplining  them.  Green 
V.  Chicago  Bd.  of  Trade,  174  111.  585,  51  N. 
E.  599,  49 :  365 

12.  The  by-laws  to  which  a  member  of  a 
voluntary  association  agrees  to  submit  are 
such  as  are  authorized  by  the  nature  of  the 
association  and  the  laws  of  the  country,  and 
must  not  be  contrary  to  the  policy  of  the 
law,  or  unreasonable.  Id. 

13.  By-laws  of  a  plumbers'  association 
which  compel  every  member  to  make  week- 
ly reports  in  open  meetings  of  the  work  done 
by  him,  and  to  pay  fixed  sums  for  certain 
items  of  plumbing  work,  if  done  in  compe- 
tition with  other  members,  are  void  on 
grounds  of  public  policy,  because  tending  to 
the  destruction  of  free  and  natural  compe- 
tition and  to  the  unreasonable  increase  of 
prices  to  customers.  Bailey  v.  Master 
Plumbers'  Association,  103  Tenn.  99,  52  S, 
W.  853,  46:  561 

14.  The  defense  that  a  by-law  of  a 
plumbers'  association  is  illegal  because  tend- 
ing to  restrict  competition  and  enhance 
prices  may  be  set  up  in  an  action  by  the 
association    against    a    member    for    sums 

'  which  the  by-law  requires  him  to  pay  for 
work  done  in  competition  with  other  mem- 
bers although  the  defendant  has  himself 
received  the  sums  sued  for  from  his  custom- 
ers on  account  of  the  by-law,  in  addition  to 
what  he  would  have  charged  them  except 
for  that.  Id. 

15.  The  legal  right  of  each  individual 
plumber  to  purchase  supplies  and  materials 
from  any  dealer  or  dealers  he  may  choose 
will  not  justify  a  by-law  of  an  association 
of  plumbers  which  permits  them  to  make 
purchases  only  from  such  dealers  as  will 
sell  to  members  thereof  exclusively,  as  the 
individual  right  is  radically  different  from 
the  binding  action,  the  former  being  free- 
dom, the  latter  restraint.  Id. 
Property  rights  of. 

See  also  supra,  6;  infra,  23,  29,  35. 

16.  The  incorporation  of  a  community 
holding  all  property  in  common,  even  if  it 
should  be  regarded  as  a  dissolution  of  the 
original  community,  entitling  the  members 
to  a  distribution  of  the  property,  gives  no 
right  to  share  therein  to  one  who  had  pre- 
viously withdrawn  frqm  its  membership. 
Burt  v.  Oneida  Community,  137  N.  Y,  346, 
33  N.  E.  307,  19:297 

17.  A  contract  between  the  members  of 
an  unincorporated  association  or  commun- 
ity, by  which  the  property  of  each  becomes 
an  inseparable  part  of  the  capital  held  in 
common  by  the  members  of  the  community 
as  one  large  family,  no  part  of  which  caia 
be  demanded  by  the  member  on  withdrawal, 
is  not  in  contravention  of  any  law  regulat- 
ing the  possession,  ownership,  or  tenure  of 
property.  Id. 
Liability. 

18.  A  member  of  a  voluntary  association 
is  responsible  for  the  acts  of  its  officers  in 
placing  the  name  of  another  member  on 
the  black  list,  as  provided  by  the  by-laws 
of  the  association,  when  he  sent  them  the 


name  for  that  purpose.     Weston  v.  Barni- 
coat,  175  Mass.  454,  56  N.  E.  619,        49:  612 

19.  Individual  members  of  an  unincorpo- 
rated association  are  liable  for  contracts 
made  in  the  name  of  the  association,  with- 
out regard  to  the  question  whether  they 
so  intended,  or  so  understood  the  law,  and 
even  if  the  other  party  contracted  in  form 
with  the  association,  and  was  ignorant  of 
the  names  of  the  individual  members  com- 
posing it.  Lawler  v.  Murphy,  58  Coim.  294, 
20  Atl.  457,  8:  113 

20.  Knowledge  and  approval  by  the  mem- 
bers of  a  law  and  order  league,  of  the  re- 
tainer by  its  officers  of  a  lawyer  to  prose- 
cute violations  of  the  law,  will  not  render 
them  personally  liable  for  the  services  if 
they  had  no  reason  to  suppose  the  employ- 
ment was  on  their  credit,  but  expected  the 
expenses  to  be  met  by  individual  contribu- 
tions placed  at  the  disposal  of  their  officers 
for  that  purpose.  McCabe  v.  Goodfellow, 
133  N.  Y.  8'9,  30  N.  E.  728,  17 :  204 

21.  An  action  cannot  be  maintained  by  a 
lawyer  against  the  treasurer  of  a  law  and 
order  league,  imder  a  statute  authorizing  a 
sxiit  against  the  treasurers  of  voluntary  as- 
sociations when  actions  might  be  maintained 
against  all  the  associates  by  reason  of  their 
joint  liability,  to  recover  for  services  ren- 
dered under  contract  with  its  officers  in 
enforcing  the  laws  which  the  society  was 
organized  to  enforce,  if  there  is  nothing 
in  the  organization  or  methods  of  the  league 
to  show  an  intention  on  the  part  of  the 
members  to  become  personally  liable  for 
debts  of  that  character,  and  no  express  au- 
thority to  the  officers  to  bind  the  members 
for  such  services  appears.  Id. 

b.  Right  to  Membership;  Expulsion. 

Expulsion  from  Benefit  Society,  see  Benev- 
olent Societies,  38a-52. 

Power  of  Courts,  as-  to,  see  Courts,  219. 

Review  by  Court  of  Expulsion,  see  Courts, 
225-228. 

Right  to  Expel  Member  of  Political  Com- 
mittee, see  Elections,- 325. 

In  Exchange  or  Board  of  Trade,  see  Ex- 
changes, 6-9. 

Injunction  against  Expulsion,  see  Injunc- 
tion, 230-238, 

Mandamus  to  Compel  Reinstatement,  see 
Mandamus,  194,  195. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

22.  The  resolution  of  the  community,  that 
a  member  has  severed  his  connection  with 
it  and  can  no  longer  be  recognized  as  a 
member  does  not  constitute  an  expulsion  of 
which  he  can  complain,  where  this  is  based 
upon  his  voluntary  withdrawal  in  violation 
of  his  contract  and  without  recognizing  the 
established  practice  of  the  commuiiity  with 
reference  to  outgoing  members.  Burt  v. 
Oneida  Community,  137  N.  Y.  346,  33  N.  E. 
307,  19:297 

23.  The  rights  of  membership  and  the 
privilege  of  returning  cannot  be  reserved  by 
a  member  of  a  community  in  which  all  prop- 
erty is  held  in  common  and  all  members 
work   without   wages,   when  he  withdraws 


ASSOCIATIONS,  III;     ASSUMPSIT. 


165 


and  enters  the  employment  of  an  outride 
building  establishment  on  a  salary,  in  vio- 
lation of  his  obligation  to  the  community 
and  without  consent  of  its  members,  al- 
though he  announces  that  his  withdrawal  is 
only  temporary  pending  an  adjustment  of 
differences-,  and  that  he  shall  insist  upon 
his  rights  as  a  member.  Id. 

24.  A  resolution  of  the  Masonic  Order 
denying  membership  to  saloon  keepers  ap- 
plies to  existing  members  if  they  continue 
thereafter  in  that  business.  Ellerbe  v. 
Faust,  119  Mo.  653,  25  S.  W.  390,     25:  149 

25.  Denial  of  guilt  does  not  affect  the 
riglit  of  a  voluntary  association  to  proceed 
to  try  one  of  its  members  for  an  alleged  of- 
fense which  is  clearly  in  violation  of  its 
by-laws.  Green  v.  Chicago  Bd:  of  Trade, 
174  111.  585,  51  N.  E.  599,  49:365 

26.  The  directors  of  a  voluntary  asso- 
ciation are  not  deprived  of  jurisdiction  to 
try  a  member  of  the  association  By  the  fact 
that  the  charges  are  preferred  by  some  of 
their  number.  Id. 

27-28.  The  members  of  a  social  club  may 
regulate  through  their  by-laws'  the  causes 
for  the  expulsion  of  members  and  the  man- 
ner of  effecting  the  same,  when  such  power 
has  been  expressly  conferred  upon  them  by 
the  legislature.  Com.  ex  rel.  Burt  v.  Union 
League,  135  Pa.  301,  19  Atl.  1030,       8:  195 

29.  The  enforcement  of  the  provisions  of 
the  charter  and  by-laws  of  a  social  club, 
which  provide  for  the  expulsion  of  members, 
in  the  case  of  a  person  who  became  a  mem- 
ber after  their  adoption,  can  deprive  him  of 
no  legal  constitutional  right  on  the  ground 
that  his  personal  franchise  and  property 
rights  are  subject  to  the  action  of  a  ma- 
jority of  the  members.  Id. 

30.  By-laws  of  a  social  club  providing  for 
the  expulsion  of  members  guilty  of  acts  or 
conduct  which  the  board  of  directors  shall 
deem  disorderly  or  injurious  to  the  inter- 
ests or  hostile  to  the  objects  of  the  club 
are  not  unreasonable,  arbitrary,  or  oppres- 
sive, nor  do  they  violate  any  principle  of 
natural  justice.  Id. 

31-32.  Failure  of  a  by-law  to  designate 
and  define  the  various  and  specific  acts 
which  will  be  deemed  disorderly  within 
the  rule  subjecting  members  of  a  social 
club  to  expulsion  therefor,  the  determi- 
nation of  which  question  is  left  to  the  board 
of  directors,  does'  not  render  the  by-law  il- 
legal. Id. 
What   will   authorize    expulsion. 

33.  A  minor  offense  is  sufficient  to  justify 
the  expulsion  of  a  member  from  a  social 
club,  if  the  club  acts  in  good  faith,  and 
exercises  only  the  powers  conferred  by  its 
charter.  Com.  ex  rel.  Burt  v.  Union  League, 
135  Pa.   301,   19   Atl.   1030,  8:  195 

34.  Acts  defaming  members  for  reasons 
connected  with  the  society,  causing  dissen- 
sions and  disorders  in  the  midst  of  the  as- 
sociation, within  the  meaning  of  a  by-law 
of  a  secret  society,  authorizing  the  expul- 
sion of  members,  are  committed  by  the  pub- 
lication of  an  article  by  members  appointed 
upon  a  committee  to  conduct  a  celebration, 
charging  that  they  were  compelled  to  re- 


sign because  of  unjust  and  stupid  attacks 
by  their  fellow  members,  who  were  incap- 
able of  executing  such  an  exterprise,  but,  be- 
cause of  their  illiteracy,  were  compelled  to 
commit  the  matter  to  nonmembers ;  and  that 
since  the  contemplated  celebration,  because 
of  the  unreasonableness  of  the  majority, 
brings  the  society  to  dishonor,  the  persons- 
making  the  publication  do  not  recognize  it. 
Del  Ponte  v.  Societa  Italiana  di  Marconi 
(R.  L)  60  Atl.  237,  70:  188 

Interest  preventing  expulsion. 

35.  The  interest  of  a  member  in  tne  prop- 
erty of  an  association,  when  merely  inci- 
dental to  his  membership,  will  not  prevent 
his  expulsion  if  his  right  of  membership 
has  been  forfeited;  nor  will  it  give  the 
courts  any  right  to  prevent  the  investiga- 
tion of  the  charge  against  him,  or  to  deter- 
mine its-  sufficiency.  Lawson  v.  Hewell,  118 
Cal.  613,  50  Pac.  763,  .49 :  400 


III.  Editorial  Notes. 

§  I.  Generally. 

Benefit  association  as  an  insurance  com- 
pany.     38:  33. 

Liability  of  members  of  mutual  fire  insur- 
ance  companies.     32 :  4S1 

How  far  members  bound  by  rules  of,  8: 
177.», 

Infant  as  member  of  co-operative  insurance 
(company.    17 :  647. 

When  held  to  be  partnerships.    3 :  430.* 

Power  and  authority  as  partnerships.  17: 
204.» 

Effect  of  s-ubsequent  incorporation  to  make 
valid  a  gift  to  an  unin- 
corporated association. 
14:  410. 

Relations  and  rights  of  syndicate  members. 
40:  216. 

§  2.  Expulsion. 

Effect  of  expulsion  from  a  society  to  de- 
stroy right  to  insurance 
connected  therewith.  25: 
149. 

Mandamus  to  obtain  reinstatement  in  club 
or  social  organization. 
8:  195. 


ASSUMPSIT. 


I.  In  General. 
II.  Money  Paid  or  Received. 

a.  !NIoney  Paid. 

b.  Money  Received. 

c.  Recovering  Back  Payments. 

1.  In  General. 

2.  Of  Assessment  or  Taxes. 

3.  Public  Money. 
III.  Editorial  Notes. 

Against  Servant  or  Agent,  see  Case,  8. 

Implied  Promise  to  Pay  for  Benefit,  see  Con- 
tracts, 8. 

For  Breach  of  Contract  by  Telegraph  Com- 
pany, see  Election  of  Remedies,  27. 


166 

Changing  to  Bill  in  Equity,  see  Equity,  75. 

For  Negligence  of  Physician,  see  Physicians 
and  Surgeons,  58. 

By  Subscriber  for  Establishment  of  Manu- 
factory, see  Subscription. 


ASSUMPSIT,  I.— n.  b. 


I.  In  General. 

1.  Assiunpsit  will  not  lie  to  recover  per 
diem  fees  of  a  witness  for  the  time  of  his 
detention  to  secure  his  attendance,  but  the 
appropriate  proceeding  is  by  mandamus,  if 
anything  is  due  him.  Hall  v.  Somerset 
County,  82  Md.  618,  34  Atl.  771,       32:  449 

2.  A  recovery  upon  a  quantum  meruit  can- 
not be  had  for  literary  services  under  a  con- 
tract which  provides  that  compensation 
therefor  is  to  be  derived  solely  from  a  di- 
vision of  profits  from  sales  after  publica- 
tion. Keyser's  Appeal,  124  Pa.  80,  16  Atl. 
577,  2:159 

3.  No  recovery  can  be  hiid  for  goods  deliv- 
ered by  one  corporation  in  payment  of  an  in- 
valid subscription  to  the  stock  of  another, 
although  in  ignorance  of  the  law  aifecting 
the  contract.  Valley  R.  Co.  v.  Lake  Erie 
Iron  Co.  46  Ohio  St.  44,  18  N.  E.  486, 

1:  412 

4.  If  one  furnishes  goods  upon  an  execu- 
ted consideration,  he  cannot  maintain  an  ac- 
tion to  recover  for  their  price,  although  the 
original  agreement  ^tas  void  under  the  stat- 
ute of  frauds.  Starratt  v.  Mullen,  148  Mass. 
570,  20  N.  E.  178,  2:  697 


II.  Money  Paid  or  Received. 

a.  Money  Paid. 

Sufficiency  of  Pleading,  see  Pleading,  218. 
See  also  IJanks,  200. 

5.  A  person  who  pays  money  under  the 
demand  of  another,  with  full  knowledge  of 
all  the  facts,  cannot  afterwards  recover. 
Howard  v.  Mutual  Reserrg  Fund  L.  Asso. 
125  N.  C.  49,  34  S.  E.  199,  45:  853 

6.  A  stranger  paying  tho  debt  of  another 
without  request  cannot  sii&tain  an  action  at 
law  against  such  other,  unless  he  has  in 
some  way  ratified  such  pavment.  Crumlish 
v.  Central  Improv.  Co.  38  W.  Va.  390,  18  S. 
E.  456,  23:  120 

7.  The  payment  by  one  receiving  a  nego- 
tiable promissory  note  indorsed  for  collec- 
tion, of  the  amount  thereof  out  of  his  own 
funds,  if  made  with  the  assent  of  the  maker, 
renders  the  latter  liable  as  for  money  paid  to 
his  use,  or  on  the  note  as  a  reissued  note; 
but  as  to  a  maker  who  does  not  assent  to 
such  pavment  there  is  no  liability.  People 
&  Drovors'  Bank  v.  Craig,  63  Ohio  St.  374.  59 
\.  E.  102,  52 :  872 

8.  The  sum  paid  by  a  'aroker  for  corn  pur- 
fhased  by  him  to  fill  a  r^ntract,  in  conform- 
ity with  rules  and  usages  of  the  board  of 
t  rado.  whereby  the  principal  is'  under  an  im- 
])lied  obligation  to  indemnify  him,  is  a  debt 
.  ..oovorable  upon  common  money  counts  as 


money  advanced  to  defendant's  use.     Perin 
V.  Parker,  126  111.  201,  18  N.  E.  747,      2:  33(1 

9.  Money  subscribed  and  paid  as  a  dona- 
tion to  a  manufacturing  company  in  order 
to  be  used  in  buildings  on  lands  donated  to 
it,  in  consideration  of  the  removal  of  a 
manufacturing  business  to  that  place,  can 
be  recovered  back  by  the  sub&x;riber  for  fail- 
ure of  consideration  if  the  company  fails 
to  move  the  business  to  that  place  as  agreed, 
although  the  money  has  been  expended  ih 
the  erection  of  the  contemplated  buildings. 
Ft.  Wavne  Electric  Light  Co.  v.  Miller,  131 
Ind.  499,  30  N.  E.  23.  14:804 

10.  A  lessee  which  has  for  nine  years  paid 
taxes  under  a  system  requiring  return  to  be 
made  before  demanding  reimbursement  or 
deduction  from  the  rental  cannot  recover 
the  amounts  thus  paid  from  the  lessor. 
Western  &  A.  R.  Co.  v.  State  (Ga.  Special 
Judicial  Commission)  14:  438 

b.  Money  Received. 

Equity    Jurisdiction    to    Compel    Payment 

Over,  see  Equity,  22. 
Right  of  De  Jure  Officer  to  Recover  Salary 

iPaid  to  De  Facto  Officer,  see  Officers, 

227,  228. 
See  also  Principal  and  Agent,  57. 

11.  One  who  lends  money  to  a  corpora- 
tion upon  the  agreement  of  the  latter  to 
repay  the  loan  in  preferred  stock  to  be  sub- 
sequently issued  may  maintain  an  action 
to  recover  back  the  money  loaned,  where  the 
corporation,  at  the  time,  had  no  author- 
ity to  issue  the  stock.  Anthony  v.  House- 
hold Sewing-Mach.  Co.  16  R.  I.  571,  18  Atl. 
176.  5:575 

12.  An  action  for  money  had  and  re- 
ceived will  not  lie  against  a  corporation  in 
favor  of  one  who  has  loaned  money  to  its 
treasurer  for  the  company  in  the  mistaken 
belief  that  he  had  authority  to  borrow  it,  al- 
though the  money  was  used  in  paying  debts 
of  the  corporation,  where  the  treasurer  was 
a  defaulter,  having  embezzled  money  which 
otherwise  would  have  paid  such  debts,  and 
may  reasonably  be  presumed  to  have  bor- 
rowed the  money  to  cover  up  his  default  and 
escape  detection.  Craft  v.  South  Boston  R. 
Co.  150  Mass.  207,  22  N.  E.  920,  5:  641 

13.  Restitution  may  be  had  by  an  action 
based  on  an  implied  promise  in  favor  of 
plaintiffs  in  an  attachment  suit,  where  mon- 
ey obtained  by  the  levy  was  paid  over  by 
the  slieriff  before  judgment  to  subsequent 
lienors  who  had  procured  a  vacation  of  the 
attachment,  if  the  attachment  is  afterwards 
held  valid  on  appeal,  and  the  plaintiffs  have 
obtained  judgment  and  issued  execution 
which  is  returned  unsatisfied.  Haebler  v. 
Myers.  132  N.  Y.  363,  .30  N.  E.  963,     15:  588 

14.  A  public  officer  receiving  fees  to  which 
he  is  not  entitled,  from  a  party  whom  he 
knows  to  be  ignorant  of  the  law,  without 
informing  him  that  he  is  not  bound  to  pay, 
receives  money  fraudulently,  and  is  liable 
to  an  action  for  money  had  and  received. 
Marcotte  v.  Allen,  91  Me.  74,  39  Atl.  346, 

40:  185 


ASSUMPSIT,  II.  c,  1. 


167 


Purpose  for  which  money  received. 
Loan  to  Married  Woman,  see  Husband  and 
Wife,  31. 

15.  The  only  legal  remedy  to  compel  an 
agent  to  account  for  funds  furnislied  him  for 
an  illegal  purpose  is  an  action  in  assumpsit 
to  recover  so  much  of  the  money  as  was  not 
actually  used  by  him  in  carrying  such  pur- 
pose into  efifect.  Singleton  v.  Benton,  114 
Ga.  548,  40  S.  E.  811.  58:  181 

16.  An  action  for  money  had  and  received 
will  lie  to  recover  the  consideration  paid  for 
land,  where  the  purchaser  is  entitled  to  re- 
scind the  contract,  and  has  tendered  a  suffi- 
cient reconveyance.  McKinnon  v.  Vollmar, 
75  Wis.  82,  43  N.  W.  800,  6:  121 

17.  Advancements  to  a  contractor,  made 
by  the  owner  of  a  building,  may  be  recovered 
for  failure  of  consideration,  on  its  destruc- 
tion by  fire  before  completion,  a^Jthough  the 
contractor  can  set  off  his  claim  on  an  im- 
plied assumpsit  for  the  value  of  what  was 
already  done,  where  he  is  discharged  by  the 
fire  and  entitled  to  such  compensation  be- 
cause the  contract  was  for  part  only  of  the 
labor  and  materials.  Butterfield  v.  Byron, 
153  Mass.  517,  27  N.  E.  667,  12:571 

18-19.  Where  money  was'  advanced  to  a 
person  to  be  used  by  him  in  raising  sunken 
treasure,  upon  his  promise  to  retain  a  large 
sum  if  successful,  and  it  appeared  that  the 
further  prosecution  of  the  work  by  him  had 
become  impossible,  it  was  held  that  he  must 
account  for  the  moneys  received,  and,  after 
certain  allowances,  pay  back  the  imexpended 
balance.  Thomas  v.  Hartshome  (N.  J. 
Err.  &  App.)  45  N.  J.  Eq.  215,  16  Atl. 
916,  3:381 

20.  An  action  of  assumpsit  may  be  main- 
tained by  the  owner  of  stolen  money  to  re- 
cover the  amount  thereof  against  one  with 
whom  it  was  deposited  by  the  thief,  and 
who,  after  notice  of  the  owner's  rights,  paid 
it  upon  the  thief's  order  to  third  persons. 
Hindmarch  v.  Hoffman,  127  Pa.  284,  18  Atl. 
14,  4:  368 

21.  A  man  who  places  checks  in  the  hands 
of  another  to  be  cashed  for  his  benefit,  al- 
though with  the  original  intent  to  defraud 
creditors,  is  entitled  to  recover  the  money 
collected  on  them,  in  an  action  for  the  bene- 
fit of  one  to  whom  lie  has  assigned  in  con- 
sideration of  a  debt,  according  to  the  compo- 
sition with  creditors,  after  he  has  demanded 
it  for  that  purpose.  Carll  v.  Emerv,  148 
Mass.  32,  18  N.  E.  574,  1 :  618 

i2.  IMoney  paid  to  a  broker  for  effecting 
the  sale  of  real  estate  in  ignorance  of  the 
fact  that  he  is  also  the  agent  of  the  pur- 
chaser may  be  recovered  back,  even  if  the 
sale  is  an  advantageous  one.  Cannell  v. 
Smith,  142  Pa.  25.  21   Atl.  793,         12:  395 

23.  A  finding  of  fact  that  the  president  of 
a  bank  made  a  wrongful  and  unauthorized 
appropriation  of  its  funds  for  payment  of 
his  own  debts  cannot  be  overcome  in  favor 
of  persons  who  received  them,  by  the  fact 
that  entries  exist  in  the  bank's  books  which 
tend  to  show  the  contrary,  since  their  liabil- 
ity to  refund  depends,  not  upon  the  fraud- 
nlent  bookkeeping,  but  upon  the  misappro- 
priation of  the  money,  to  which  they  were 


parties,  in  regard  to  which  they  were  bound 
to  inquire  of  the  directors,  and  not  look  to 
the  books^  Lamson  v.  Beard,  36  C.  C.  A. 
56,  94  Fed.  30,  45:  822 

24.  An  action  for  money  had  and  received 
will  not  lie  against  a  municipality  in  favor 
of  a  bona  fide  purchaser  of  its  bonds  issued 
without  authority  to  a  railroad  corporation 
of  another  state,  in  payment  of  a  stock  sub- 
scription which,  it  had  no  power  to  make, 
although  the  proceeds  of  the  bonds  were  used 
in  constructing  tracks  and  depot  in  the  mu- 
nicipality, fftid  it  has  received  the  stock  cer- 
tificates, while  it  might  have  i&'sued  such 
bonds  to  a  domestic  corporation  in  payment 
of  a  subscription  to  stock,  Travelers'  Ins. 
Co.  v.  Johnson  City,  40  C.  C.  A.  58,  99  Fed. 
663,  49 :  123 
Privity  between  parties. 

25.  An  attorney  is  not  subject  to  an  ac- 
tion for  money  received  by  the  one  sending 
him  the  money  in  response  to  a  telegram 
from  his  client,  but  who  was  not  a  party  to 
a  conftract  befween  the  attorney  and  client 
under  which  he  retained  the  money.  Atwell 
V.  Jenkins,  163  Mass.  362,  40  N.  E.  178, 

28 :  60 ! 

26.  No  privity  between  the  parties,  and 
no  promise  to  pay,  other  than  that  whici- 
is  implied,  is  necessary  to  sustain  a  right  of 
action  in  assumpsit  when  defendant  ha=; 
money  in  his  hands  belonging  to  plaintifT 
that  he  has  no  right  oonscientioualy  to  re- 
tain. Soderberg  v.  King  County,  15  Wash. 
194,  45  Pac.  785,  33:  670 

c.  Recovering  Back  Payments. 

1.  In  General. 

By  Bank  from  Bona  Fide  Holder  of  Check, 

see  Banks,  110. 
Of    Amount    Paid    on    Forged    Check,    see 

Banks,     136-140,     142,     145,     166-168; 

Checks,   45. 
Recovery    Back    of   Money   Deposited   with 

Stakeholder,  see  Betting,  2. 
For  Amount  Paid  on  Note,  see  Bills  and 

Notes,  101. 
Of  Money  Paid  on  Draft  Attached  to  iSill  of 

Lading,  see  Bills  of  Lading,  4,  5. 
Of    Overcharges ,  by    Carrier    on   Interstate 

Shipments,  see  Carriers,  1018. 
Of  Money  Collected  by  Carrier  C.  O.  D.,  see 

Carriers,  779. 
Recovering  Donation  on  Removal  of  6usi> 

ness  by  Donee,  see  Contracts,  830. 
Of  Monev  Paid  under  Illegal  Contract,  see 

Contracts.  628. 
Amounts  Paid  by  Fraudulent  Grantee,  see 

Fraudulent  Conveyances,  41,  42. 
Insurance   Premiums  Paid,    see   Insurance, 

678-684,  1366. 
Limitation  of  Action  to  Recover  Excessive 

Freight  Charges,  see  Limitation  of  Ac- 
tions. 111-113. 
Of  Part  of  Purchase  Price  of  Land  in  Case 

of  Deficiency,  see  Vendor  and  Purchas- 
er. 56. 

27.  Money  or  assets  of  a  corporation  with- 
drawn by  a  majority  stockholder  and  con- 
verted to  his  own  use,  the  transactions  be- 


168 


ASSUMPSIT,  II.  c,  1. 


ing  concealed  by  means  of  opportunities  af- 
forded him  as  an  officer  of  the  company  un- 
til a  change  in  management,  may  be  re- 
covered back  by  the  corporation,  although 
no  one  but  subsequent  stockholders  will  de- 
rive benefit  from  such  recovery.  Home  F. 
Ins.  Co.  V.  Barber,  67  Neb.  644,  93  N.  W. 
1024,  60:  927 

Voluntary  payments. 
Usurious   Interest,   see  Usui^,   46. 
See  also  infra,  34,  35,  59-60a. 

28-29.Voluntary  payment  which  cannot  be 
recalled,  by  a  bank  to  its  princiftal,  is  made 
where,  after  taking  a  check  instead  of  cash, 
without  authority  to  do  so,  on  the  sale  of 
stock,  it  notifies  the  principal  of  the  deposit 
of  the  check  to  his  credit,  and"  afterwards 
pays  his  check  for  the  proceeds.  Pepperday 
V.  Citizens'  Nat.  Bank,  183  Pa.  519,  38  Atl. 
1030,  39:529 

30.  No  part  of  the  interest  paid  in  ad- 
vance on  a  note  in  accordance  with  its  terms 
can  be  recovered  back  on  a  voluntary  pay- 
ment of  the  principal  sum  during  the  period 
for  which  the  interest  was  paid, — at  least 
where  the  creditor  has  not  reserved  the 
right  to  demand  payment  during  that  time. 
Skelly  v.  Bristol  Sav.  Bank,  63  Conn.  83, 
26  Atl.  474,  19 :  599 

31.  Payments  of  freight  charges  made  by 
shippers  of  goods  in  ignorance  that  services 
similar  to  those  received  by  them  were  being 
secretly  rendered  by  the  carrier  to  other 
shippers  for  much  less  compensation,  and 
after  the  positive  assertion  of  the  cjtrrier 
that  no  lower  rates  were  received  by  it,  are 
not  voluntary  within  the  rule  that  volun- 
tary payments  cannot  be  recovered  back. 
Cook  ▼.  Chicago,  R.  I.  &  P.  R.  Co.  81  Iowa, 
551,  46  N.  W.  1080,  9:  764 

32.  Payment  of  an  overcharge  of  freight 
to  a  railroad  company  engaged  as  a  com- 
mon carrier  of  goods  is  not  voluntary  so 
as  to  prevent  recovering  it.  Louisville,  E. 
&  St.  L.  Consol.  R.  Co.  v.  Wil&x)n,  132  Ind. 
517,  32  N.  E.  311,  18:  105 

33.  One  who  voluntarily  and  knowingly 
deals  with  parties  combined  to  monopolize 
trade  and  arbitrarily  control  prices  cannot 
accept  and  retain  the  goods  and  have  a  right 
of  action  against  the  seller  for  the  money 
paid,  or  any  part  of  it,  «ither  upon  the 
ground  that  the  combination  was  illegal  or 
that  its  prices  were  unreasonable,  however 
urgent  the  need  of  dealing  with  such  combi- 
nation may  have  seemed  for  preservation  of 
business  interests,  as  such  need  cannot 
change  the  voluntary  character  of  the  pay- 
ment. Dennehy  v.  McNulta,  30  C.  C.  A. 
422,  59  U.  S.  App.  264,  Sfi  Fed,  825,  41 :  609 
Effect  of  protest. 

See  also  infra,  48,  49. 

34.  The  only  effect  of  a  protest  to  the 
payment  of  money  in  a  case  in  which  it  may 
be  legitimately  applied  is  to  show  that  the 
payment  was  not  voluntarily  made,  and  that 
the  party  protesting  intends  to  claim  it 
back.  De  la  Cuesta  v.  Insurance  Co.  of  N. 
A.  136  Pa.  62,  20  Atl.  505,  9:  631 

35.  The  payment  under  protest,  of  an  un- 
lawful demand,  when  such  payment  is  neces- 
sary to  avoid  serious  injury  or  risk  in  re- 


spect to  property,  is  not  to  be  deemed  as 
voluntarily  made,  and  the  .  money  may  be 
recovered  back.  State  ex  rel.  IMcCarty  v. 
Nelson,  41  Minn.  25,  42  N.  W.  548,     4:  300 

36.  Paying  money  imder  protest  will  not 
entitle  a  stockholder  of  a  corporation  who  is 
required  to  make  the  payment  as  a  bonus 
for  the  privilege  of  subscribing  to  new  stock 
to  be  issued  by  the  corporation  for  the  pur- 
pose of  increasing  its  capital,  to  recover 
back  the  amount  paid,  although  it  is  sub- 
sequently judicially  determined  that  the 
bonus  was  wrongfully  exacted,  and  that  he 
was  entitled  to  new  stock  upon  payment  of 
merely  its  par  value.  De  la  Cuesta  v.  Insur- 
ance Co.  of  N.  A.  136  Pa.  62,  20  Atl.  505, 

9:  631 

37.  An  assurance  to  one  who  is  about  to 
make  a  written  protest  before  the  payment 
of  money  which  is  demanded  of  him  that,  if 
he  will  not  write  the  protest,  he  shall  re- 
ceive under  his  verbal  one  any  benefit  which 
anyone  shall  receive  under  a  written  one  in 
any  suit,  will  have  no  more  effect  than  to 
place  him  in  the  same  position  he  would 
have  occupied  had  he  completed  his  written 
protest.  Id. 

38.  If  a  demand  made  upon  a  person  for 
the  payment  of  money  is  illegal,  and  he 
can  save  himself  and  his  property  in  no 
other  way,  he  may  pay  under  protest  and 
recover  back  the  payment;  but  if  other 
means  are  open  to  him  by  a  day  in  court  or 
otherwise,  he  must  resort  to  such  means. 

Id. 
Mistake. 
Check  J:'aid  to  Bona  Fide  Holder,  see  Banks, 

132. 
See  also  infra,  6I-63b. 
For  Editorial  Notes,  see  infra,  III.  §  3. 

39.  Money  paid  by  mistake  of  law,  with 
knowledge  of  all  the  facts,  cannot,  in  the 
absence  of  fraud,  deceit,  or  undue  impor- 
tunity, be  recovered  back.  Scott  v.  Ford,  45 
Or.  531,  78  Pac.  742,  68:  469 

40.  Payment  of  the  amount  due  on  an 
instrument  by  one  who  indorsed  it,  which  is 
made  and  accepted  in  the  mistaken  belief 
of  both  parties  that  such  indorser  was  le- 
gally liable,  where  the  matter  was  equally 
open  for  the  inquiry  and  judgment  of  both 
parties,  cannot  be  recovered  back  yhether 
the  mistake  is  to  be  considered  one  of  fact 
or  of  law.  Alton  v.  First  Nat.  Bank,  157 
Mass.  341,  32  N.  E.  228,  18:  144 

41.  An  assignee  of  a  mortgage  holding  it 
as  collateral  security,  who  receives  payment 
of  his  debt  from  the  mortgagor,  and  there- 
upon surrenders  the  mortgage  and  joins 
with  the  mortgagee  in  directing  a  cancela- 
tion of  the  mortgage  on  the  record,  which 
is  effected,  while  both  he  and  the  mortgagor 
are  ignorant  of  the  fact  that  there  is  a 
prior  assignment  of  the  mortgage,  duly  re- 
corded, cannot  be  compelled  to  repay  to  the 
mortgagor  the  amount  received  from  him 
without  being  restored  to  his-  former  posi- 
tion, although  the  mortgagor  is  compelled 
to  pay  a  second  time  to  the  first  assignee. 
Behring  v.  Somerville  (N.  J.  Err.  &  App.) 
63  N.  J.  L.  568,  44  Atl.  641,  49:  578 

42.  Assumpsit  will   lie  against  a  county 


ASSUMPSIT,  II.  c.  2. 


169 


for  the  recovery  of  a  surplus  on  foreclosure 
sale,  which  the  sheriif  has  mfstakenly  paid 
into  the  treasury  as  the  amount  of  commis- 
sions which  he  supposed  it  was  his  duty  to 
retain  and  pay  over,  but  which  he  should 
have  paid  to  the  judgment  debtor.  Soder- 
berg  V.  King  County,  15  Wash.  194,  45  Pac. 
785,  33:670 

43.  That  a  building  was  erected  on  a 
railroad  right  of  way  under  an  agreement 
releasing  the  railroad  company  from  liabil- 
ity for  injury  to  it  by  fire  from  its  loco- 
motives will  not  entitle  one  who  insures  it 
against  fire  without  notice  of  such  provision 
to  reclaim  from  its  owner  the  amount  paid 
under  the  policy  upon  its  destruction  as 
paid  under  a  mistake  of  fact.  Greenwich 
Ins.  Co.  V.  Louisville  &  N.  R.  Co.  112  Ky. 
598,  66  S.  W.  411,  56:477 

44.  One  who  takes  checks  drawn  by  a  per- 
son as  treasurer  of  a  corporation,  in  pay- 
ment of  his  individual  debt,  is  liable  to  the 
corporation  for  the  amount  of  the  checks- 
after  they  have  been  paid,  if  the  funds  of 
the  corporation  have  been  in  this  way  mis- 
appropriated by  the  treasurer  to  pay  his  in- 
dividual obligation.  Rochester  &  C.  Tump. 
R.  Co.  V.  Paviour,  164  N.  Y.  281,  58  N.  E. 
114,  52:790 

45.  Money  paid  by  executors  under  the 
erroneous  belief  that,  as  matter  of  law,  the 
payee  was  entitled  to  it  as  representative 
of  a  deceased  legatee  of  the  will,  cannot  be 
recovered  back.  Scott  v.  Ford,  45  Or.  531, 
78   Pac.   742,  68:  469 

46.  Money  paid  by  executors  to  the  rep- 
resentative of  one  whom  they,  without  neg- 
ligence on  their  part,  erroneously  believed, 
as  matter  of  fact,  to  have  been  alive  when 
the  will  took  effect,  so  as  to  be  entitled  to 
the  benefit  of  its  provisions,  may  be  recov- 
ered back.  Id. 

47.  An  overpayment  by  an  administrator 
to  a  creditor,  in  the  mistaken  belief  that  the 
estate  is  solvent,  where  the  mistake  is  one 
of  law  or  of  fact,  may  be  recovered  back  al- 
though the  creditor  received  it  in  good  faith 
believing  that  he  was  justly  entitled  thereto. 
Man&ifield  v.  Lynch,  59  Conn.  320,  22  Atl. 
313,  12:  285 
Duress. 

See  also  infra,  64,  65. 

For  Editorial  Notes,  see  infra.  III.  §  3. 

48.  A  declared  intention  not  to  recognize 
a  right  is  not  duress  within  the  rule  that 
a  person  acting  under  duress  of  person  or 
property,  who  under  protest  makes  a  pay- 
ment of  money  unlawfully  demanded  from 
him,  can  recover  the  same  back  again.  De 
la  Cuesta  v.  Insurance  Co.  of  N.  A.  136  Pa. 
62,  20  Atl.  605,  9:  631 

49.  Payment  under  protest  of  a  mechan- 
ics-' lien  filed  upon  an  unfounded  claim,  in 
order  to  clear  the  title  of  record  so  that  the 
owner  might  consummate  a  loan  upon  the 
property  which  he  had  negotiated  in  order 
to  raise  money  to  pay  a  prior  overdue  mort- 
gage and  other  oppressing  debts,  when  he 
had  no  available  means  of  raising  the  mon- 
ey, is  made  under  duress,  and  may  be  re- 
covered back.  Joannin  v.  Ogilvie,  49  Minn. 
564,  52  N.  W.  217,  16:376 


50.  Duress  may  be  shown  with  respect  to 
real  property  as  well  as-  personal,  so  as  to 
render  a  payment  on  account  of  it  involun- 
tary and  permit  it  to  be  recovered  back. 

Id. 

51.  Payment  by  a  wife  of  her  husband's 
debt,  induced  by  threats  of  his  arrest  on  the 
eve  of  their  departure  for  Europe,  and  her 
fear  of  the  effect  thereof  on  his  shattered 
and  feeble  health,  even  if  there  is  a  lawful 
ground  for  his  arrest,  constitutes  duress,  and 
she  can  recover  back  the  money  paid. 
Adams  v.  Irving  Nat.  Bank,  116  N.  Y.  606, 
23  N.  E.  7,  6:  491 

2.  Of  Assessment  or  Taxes. 

Assignability  of  Purchaser's  Right  to  Re- 
imbursement, see  Assignment,  10. 

Retrospective  Statute  as  to,  see  Constitu- 
tional Law,  121. 

Jurisdictional  Amount,  see  Courts,  290. 

Limitation  of  Action  for,  see  Limitation  of 
Actions,   148. 

Suit  by  Single  Taxpayer  to  Recover  Back, 
see  Parties,  99. 

Prerequisites  to  Refunding  Illegal  Tax,  see 
Counties,  74. 

See  also  Taxes,  473,  507-509. 

For  Editorial  Notes,  see  infra,  III,  §  4. 

52.  A  county  is  a  "municipal  corporation" 
within  the  meaning  of  the  proviso  of  Wyo. 
Rev.  Stat.  §  3055,  respecting  actions  against 
municipal  corporations  to  recover  back  taxes 
actually  paid  over  to  such  corporation. 
Kelley  v.  Rhodes,  7  Wyo.  237,  51  Pac.  593, 

39 :  594 
52a.  Payment  in  excess  of  the  amount 
constitutionally  chargeable  for  a  license  fee 
imposed  under  an  unconstitutional  ordi- 
nance entitles  the  one  who  pays  it  to  re- 
cover it  back  from  the  city.  Harrodsburg  v. 
Renfro,  22  Ky.  L.  Rep.  806,  58  S.  W.  795, 

51:  897 

53.  One  who  is  compelled  by  judicial  pro- 
ceedings to  pay  assessments  for  a  street 
improvement  which  is  never  completed,  but 
is  wholly  abandoned  by  the  city,  is  entitled 
to  recover  from  the  city  the  amount  so  paid 
by  him  as  upon  a  failure  of  consideration. 
McConville  v.  St.  Paul,  75  Minn.  383,  77  N. 
W.  993,  43:  584 

53a.  A  city  cannot  be  ■  compelled  to  re- 
pay an  assessment  for  a  street  improvement 
to  the  lot  owner  from  whom  it  was  col- 
lected, on  account  of  the  failure  to  com- 
plete the  work  and  the  fact  that  his  prop- 
erty was  not  benefited  by  the  work  'done, 
when  it  does  not  appear  that  the  money  ac- 
cruing from  the  assessment  has  not  been 
legally  and  honestly  expended  on  the  im- 
provement. Rogers  v.  St.  Paul,  79  Minn.  5. 
81  N.  W.  539,  47:537 

54.  Where  a  county  has  caused  land 
which  is  not  taxable  to  be  assessed  and  taxes 
levied  thereon,  under  which  the  land  is 
afterwards  sold  and  attempted  to  be  con- 
veyed; and  the  county,  from  year  to  year, 
afterwards  causes  said  land  to  be  assessed 
and  taxes  levied  thereon,  a  tax  purchaser 
may  pay  such  taxes  to  protect  his  supposed 
lien,  and,  upon   the  failure  of  his  Interest 


170 


ASSUMPSIT,  II.  c.  2. 


ill  ilie  land,  may  recover  the  amount  he  has 
so  paid,  with  interest  thereon,  from  the 
foiinty.  Wilson  v.  Butler  County,  26  Neb. 
(i76.  42  N.  W.  891,  4:  589 

55.  Where  a  county  has  caused  certain 
real  estate  to  be  assessed  and  taxes  to  be 
levied  thereon,  a  tax  purchaser  may  pre- 
sume that  the  property  was  taxable,  and  is 
not  required  to  make  a  further  examination 
of  that  fact  as  a  condition  of  maintaining 
an  action  against  the  county  for  the  pur- 
chase money  and  interest,  and  taxes  there- 
after paid  "to  protect  the  tax  lien  which 
was  believed  to  exist.  Id. 

56.  Where  the  lessee  of  a  railroad  is  com- 
pelled to  pay  taxes  assessed  against  the  les- 
sor, the  law  implies  a  request  on  the  part  of 
the  lessor  for  the  making  of  such  payment, 
and  the  lessee  may  maintain  an  action  to  re- 
cover the  amount  from  the  lessor,  or  may 
deduct  the  amount  from  the  rent  due.  Ver- 
mont &  C.  R.  Co.  V.  Vermont  C.  R.  Co.  63 
Vt.  1,  21  Atl.  262,  10:  562 

56a.  The  remedy  of  a  taxpayer  in  case  too 
large  a  portion  of  his  land  is  taxed  is  by 
application  for  abatement,  and  not  payment 
of  the  whole  amount  and  suit  to  recover 
the  illegal  portion  of  the  assessment.  All 
Saints  Parish  v.  Brookline.  178  Mass.  404, 
59  N.  E.  1003,  52:  778 

57.  If  an  assessment  of  taxes  upon  three 
adjoining  lots  of  the  same  owner  is  unlawful 
as  to  two  of  them  and  lawful  as  to  the  other 
one,  his  remedy  is  by  petition  for  abatement 
of  the  over-assessment,  and  not  by  action 
at  law  to  recover  back  the  amount  after 
pa\Tnent  imder  protest.  St.  James  Educa- 
tional iDst.  V.  Salem,  153  ^Mass.  185,  26  N. 
E.  636,  10:  573 

58.  State  and  school  district  taxes  are 
foUected  for  the     "use  and  benefit"  of  the 

*  rounty  within  the  meaning  of  the  proviso 
of  Wyo.  Rev.  Stat.  §  3055,  authorizing  ac- 
tion to  recover  back  a  tax  actuallj'  paid  over 
to  any  municipal  corporation  for  whose  use 
and  benefit  it  was  levied  or  collected.  Kel- 
ley  v.  Rhodes,  7  Wyo.  237,  51  Pac.  593, 

39:594 
Voluntary. 
See  also  infra,  61. 
For  Editorial  Notes,  see  infra.  III.  §  4. 

59.  One  who,  by  force  of  the  statute,  is 
unable  to  place  on  record  a  deed  of  convey- 
ance by  which  he  has  acquired  title  to  real 
f'state,  by  reason  of  illegal  taxes  being 
cliarged  upon  the  land,  may  pay  such  taxes 
in  order  to  secure  the  recording  of  his  deed, 
without  such  payment  being  deemed  volun- 
larv.  btate  ex  rel.  MoCarty  v.  Nelson,  41 
Minn.  25,  42  N.  W.  548,  4:  300 

60.  A  payment  of  a  tax  on  sheep  is  not 
voluntary  when  made  after  first  refusing  to 
pay  it  and  because  the  collector  declares 
either  that  he  can  or  that  he  will  take 
enough  sheep  to  pay  the  tax.  Kelley  v. 
Rhodes,  7  Wyo.  237,  51  Pac.  593,  39':  504 

60a.  Taxpayers  in  one  school  district  who 
voluntarily  pay  a  tax  for  another  district, 
levied  by  mistake  upon  the  lands  cannot 
recover  back  the  amount  paid,  where  the 
books  were  kept  open  for  inspection  by  them 
and  the  means  of  knowledge  existed  to  learn 


and  know  all  the  facts,  although  they  sup- 
posed that  they  w^ere  paying  the  tax  of  the 
district  in  which  their  lands  were  situated. 
Walser  v.  Bd.  of  Edu.  of  School  Dist.  No.  1, 
160  111.  272,  43  N.  E.  346,  31:329 

Mistake. 
See  also  supra,  60a. 

61.  A  voluntary  payment,  without  duress 
of  person  or  goods,  of  an  assessment  for  the 
expense  of  grading  and  paving  a  street,  un- 
der an  ordinance  which  was  void  on  its  face, 
is  a  mistake  of  law,  and  no  action  will  lie 
to  recover  back  the  money  so  paid.  Phelps 
V.  New  York,  112  N.  Y.  216,  19  N.  E.  408, 

2:  626 

62.  Payment  of  license  fees  by  one  who 
insists  that  the  law  exacting  them  is  un- 
constitutional cannot  be  held  to  have  been 
made  under  a  mutual  mistake,  so  that  he 
is  not  entitled  -to  recover  them  back  upon 
that  ground  after  the  law  is  declared  to  be 
invalid.  C.  &  J.  Michel  Brewing  Co.  v.  State, 
(S.  D.)   103  N.  W.  40,  70:  911 

63.  The  mistaken  belief  of  an  agent  that 
three  lots  jointly  sold  for  taxes  all  belonged 
to  his  principal,  whereas  one  belonged  to  an- 
other person,  will  not  entitle  the  principal 
to  recover  any  part  of  the  money  paid  by 
the  agent  to  redeem  the  three  lots  from  the 
tax  sale.  Langevin  v.  St.  Paul,  49  Minn. 
189,  51  N.  W.  817.  15:  766 

63a.  A  school  district  cannot,  if  it  can 
recover  at  all,  recover  from  another  district 
which  has  collected  taxes  upon  lands  within 
the  former  through  a  mistake  of  the  clerk 
as  to  the  location  of  the  lands,  a  greater 
sum  than  it  wovild  have  collected  had  there 
been  no  mistake.  Walser  v.  Board  of  Edu. 
of  School  Dist.  No.  1,  160  111.  272,  43  N.  E. 
346,  31 :  329 

63b.  A  school  district  cannot  recover  from 
another  district  which  has  collected  taxes 
upor  lands  within  the  former,  through  a 
mistake  of  the  clerk  as  to  the  location  of  the 
lands,  any  of  the  taxes  so  collected,  although 
the  rate  per  cent  of  the  tax  as  extended  in 
the  former  was  thereby  made  greater  than 
it  otherwise  would  have  been,  where  the 
full  amount  of  the  levy  made  by  its  board 
of  education  was  collected,  as  the  district 
does  not  become  a  trustee  for  one  taxpayer 
of  anexcessive  amount  collected  from  an- 
other. Id. 
Duress. 

64.  Requiring  a  foreign  corporation  to  pay 
a  license  fee  as  a  condition  precedent  to 
the  sale  of  its  product  within  the  state, 
or  subject  itself  to  penalties  supposed  to  be 
prescribed  by  a  statute,  is  not  such  com- 
pulsion as  will  entitle  it  to  recover  the 
amounts  paid  in  case  the  statute  is  adjudged 
to  be  unconstitutional.  C.  &  J.  Michel 
Brewing  Co.  v.  State  (S.  D.  103  N.  W.  40, 

70:  911 

65.  Illegal  taxes  may  be  recovered  as 
paid  under  compulsion,  where  the  tax  col- 
lector, after  a  constructive  seizure  of  per- 
sonal property,  is  attempting  to  sell  it  un- 
der authority  of  law,  and  the  owner,  to  pre- 
vent such  sale,  pays  the  taxes  under  written 
protest  of  their  illegality  and  of  his  inten- 
tion to  immediatelv  hring  suit  for  their  re- 


ASSUMPSIT,  II.  c,  3— ATTACHMENT. 


171 


covery,  although  there  has  been  no  actual 
seizure  or  detention  of  the  property.  St. 
Anthony  &  D.  Elevator  Co.  v.  Soucie.  9  N. 
D.  346,  83  N.  W.  212,  50:  262 

66.  An  occupation  tax  paid  under  coer- 
cion of  criminal  proceedings  may  be  recov- 
ered back  where  the  ordinance  imposing  it 
was  unconstitutional,  although  fair  on  its 
face,  because  of  the  persistent  failure  to  en- 
force it  against  part  of  the  persons  to  whom 
it  applied.  Hoelling  v.  San  Antonio,  85  Tex. 
^28,  20  S.  W.  85,  16:  608 

3.  Public  Money. 

Running  of  Limitation  against  Right  to  Re- 
cover, see  Limitation  of  Actions,  72. 

67.  A  payment  of  salary  in  excess  of  tne 
lawful  amount,  by  order  of  a  municipal 
council,  to  one  of  its  members,  is,  not  with- 
in the  rule  which  precludes  recovery  of  mon- 
ey voluntarily  paid.  Tacoma  v.  Lilis,  4 
Wash.  797.  31  Pac.  321,  18:  372 

68.  Payments  for  services  outside  the 
scope  of  his  official  duties,  rendered  by  a 
city  councilman,  and  which  could  have  been 
appropriately  performed  by  a  private  indi- 
vidual, under  a  contract  which  is  contrary 
to  public  policy,  cannot  be  recovered  back 
by  the  city,  in  the  absence  of  corruption  or 
fraud.  .  Id. 

69.  A  city  cannot  recover  back  money  paid 
to  a  councilman  for  his  services  in  pursuance 
of  a  vote  or  resolution,  on  the  sole  ground 
that  it  had  failed  to  pass  an  ordinance  au- 
thorizing the  payment,  if  it  had  legal  au- 
thority to  compensate  him.  Id. 


in.  Editorial  Notes. 

§  I.  Generally. 

Effect  of    admission  to    change  burden    of 

proof   and   right   to    open 

and  close.  .  61 :  534,  540. 
§  2.  When  lies. 
Election  between  assumpsit  and  trover.    8: 

216.» 
Recovery  on  quantum  meruit.    5:707,*  763.* 
On  partly  performed  contract   for  services. 

24:  233. 
To  recover  on  building  contract.    5:  275.* 
For  money  paid  on  illegal  contract.    6:  493.* 
To  enforce  contribution.     1:  312.* 
Against  cotenant  for  rents  and  profits.    28: 

844. 
For  repairs  and  improvements.     29:  452. 
On  contract  with  third  person.    25:  262. 

See  also  Parties,  V.  §  3. 
§  3.  For    money    paid    under     mistake     or 

compulsion. 
For  money  paid  by  mistake.    4:  300.* 
To  recover  back  compulsory  payment.     4: 

302.* 
Threats  as  coercion.    4:  302.* 
§  4- — Taxes;  assessments. 
Assumpsit  to  recover  tax.    11:818.* 
Assumpsit  to  recover  back  money  paid  for 

illegal  taxes.     2:  626;*  4: 

800.* 


Necessity  tSbat  payment  shall  have  been 

in  money.    4:  301.* 
Necessity    that    payment    be    involuntary. 

2:  626;*  4:  301.* 
Necessity  of  protest  against  payment. 

4:  302.* 
Sufficiency  of  protest.  2:  627;*  4:  303.* 
Taxes     voluntarily    paid.     2:  627;*   4: 

304.* 


ASSUMPTION  OF  DEBT. 

As  Consideration  for  Conveyance,  see  Fraud- 
ulent Conveyance,  15;  Mortgage,  III.; 
VnL  §  11. 


ASSUMPTION  OF  RISK. 

By  Passenger,  see  Carriers,  230,  265,  629. 

By  Employees,  see  Carriers,  41,  57. 

By  Servant,  see  Master  and  Servant,  11.  b; 
Trial,  535. 

Of  Explosion  of  Powder  Magazine,  see  Ex- 
plosions and  Explosives,  3,  4. 

From  Fireworks,  see  Fireworks,  6. 

By  One  Crossing  Highway  Partly  Obstruct- 
ed by  Train,  see  Highways,  158. 

On  Sale  of  Property,  see  Sale,  112,  113. 


ASYLUM. 

Equal  Privileges  as  to  Keeping,  see  Consti- 
tutional Law,  530. 

Right  to  Furnish  Support  to  Person  in,  see 
Contracts,  704. 

Soldiers'  Home  as,  see  Elections,  35a. 

As  Public  Institution,  see  State  Institutions, 
4. 

Liability  of  Keeper  for  Injury  to  Guest,  see 
Innkeepers,  23,  24,  31. 

See  also  Hospitals. 


AT. 

Meaning  of,  see  Contracts,  321. 

♦>» 

ATLAS. 
Copyright  of,  see  Copyright,  2, 


ATTACHMENT. 


I.  When  Lies. 

a.  In  General. 

b.  On  What  Claims. 

c.  By    or    Against    Nonresidents    or 

Foreign  Corporations. 

d.  For  Fraud. 

n.  Interest   Acquired;    Lien;    Priority. 

a.  In  General. 

b.  Lien ;    Priority. 


172 


ATTACHMENT.  1.  a,  b. 


III.  Procedure. 

a.  Affidavits,  Petition,  etc. 

b.  Bonds ;  Liability  on. 

c.  Dissolution;  Setting  Aside. 

IV.  Editorial  Notes. 

Review  of  Decision  on,  see  Appeal  ajid  Er- 
ror, 609,  796,  797. 

Waiver  of  Objection  to  Jurisdiction  by  Ap- 
pearance in,  see  Appearance,  2. 

Against  Nonresident,  Assignment  of  Claim, 
see  Assignment,  31. 

Necessity  of  Acceptance  to  Make  Deed  of 
Trust  Valid  as  Against,  see  Assignments 
for  Creditors,  56. 

Abuse  of,  to  Learn  Secrets,  see  Attorneys, 
86. 

By  Collecting  Bank,  see  Banks,  193. 

Of  Property  Covered  by  Bill  of  Lading,  see 
Bills  of  Lading,  2. 

By  Owner  of  Chattel  Mortgage  as  Waiver 
of  Mortgage  Lien,  see  Chattel  Mortgage, 
89. 

Chattel  Mortgagee,  Obtaining  Benefit  of,  see 
Chattel  Mortgage,  93. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
290,  325-327. 

Afl  a  Contempt  of  Court,  see  Contempt,  9, 
10,  65. 

Contribution  Between  Attaching  Creditors, 
see  Contribution,  4-6. 

Against  Insolvent  Corporation, '  see  Corpora- 
tions, 766-768. 

Acquiring  Jurisdiction  by,  see  Courts,  376. 

Creditors'  Bill  as,  see  Creditors'  Bill,  2,  3. 

Enforcement  by  Creditors'  Bill  of  Judgment 
Obtained  by  Attachment  Only,  see  Cred- 
itors' Bill,  7. 

Wrongful,  Damages  for,  see  Damages,  47, 
279,  280,  399. 

As  Election  of  Remedy,  see  Election  of  Rem- 
edies, 33,  37,  38,  51,  52;  Estoppel,  263, 
264. 

Record  of,  as  Evidence,  see  Evidence,  853, 
854. 

Of  Corporate  Dividends  after  Stockholder's 
Death,  see  Executors  and  Administra- 
tors, 129. 

Property  Exempt  from,  see  Exemptions; 
Homestead. 

Issue  of,  on  Holiday,  see  Holidays,  1,  2. 

Of  Homestead,  see  Homestead,  41. 

Injunction  Against  Removal  of  Materials 
Pursuant  to  Sale,  see  Injunction,  266. 

Injunction  in  Aid  of,  see  Injunction,  514, 
and  also  infra,  IV.  §  12. 

As  Process,  see  Insurance,  419. 

Eff'ect  on  Insurance  of  Issuance  of,  see  In- 
surance, 419-422. 

Jurisdiction  to  Render  Judgment  Against 
Nonresident,  see  Judgment,  24. 

Conclusiveness  of  Judgment  on,  see  Judg- 
ment, 299. 

Sale  under,  see  Judicial  Sale. 

On  Fixtures,  see  Landlord  'and  Tenant,  114. 

What  Property  Subject  to  Attachment,  see 
Levy  and  Seizure,  I.  and  also  infra,  IV. 
§•4. 

Mode  and  Sufficiency  of  Levy  and  Return, 
see  Levy  and  Seizure,  II. 

Sufficiency  of  Pleading  in  Action  for  Wrong- 
ful Attachment,  see  Pleading,  240. 


Effect  of,  on  Right  of  Stoppage  in  Transitiif 

see  Sale,  143. 
Against  Receiver,  see  Receivers,  57. 
Substituted   Service   in   Case    of,   see  Writ 

and  Process,  53. 
As  to  Garnishment,  see  Garnishment. 


I.  When  Lies. 
a.  In  General. 

1.  An  attachment  of  property  of  an  in- 
solvent bank  which  has  failed  and  closed  its 
doors  cannot  be  allowed  under  the  California 
bank  commissioners'  act,  §  11,  which  fully 
provides  for  the  winding  up  of  insolvent 
banks  by  commissioners,  and  takes  them  out 
of  the  operation  of  the  insolvent  act  applic- 
able to  other  corporations.  Crane  v.  Pacific 
Bank,  106  Cal.  64,  39  Pac.  215,  27:562 

b.  On  What  Claims. 

See  also  infra,  33.- 

2.  Attachment  of  the  debtor's  property  to 
secure  a  debt  not  due  is  not  authorized  by 
Mich.  Pub.  Acts  1889,  No.  149,  where  the 
facts  alleged  in  the  affidavit  as  a  basis  for 
the  attachment  are  consistent  with  an  hon- 
est purpose  on  the  part  of  other  creditors  to 
secure  their  just  claims.  Pierce  v.  Johnson, 
93  Mich.  125,  53  N.  W.  16,  18:  486 

3.  No  debt  is  created  on  the  part  of  a  bank 
Dy  the  sale  of  its  draft  on  another  bank  for 
cash,  which  can  be  levied  on  under  attach- 
ment against  the  purchaser,  so  long  as  the 
draft  remains  outstanding  without  default 
thereon.  Capital  City  Bank  v.  Parent,  134 
N.  Y.  527,  31  N.  E.  976,  18.-  240 

4.  The  assignee  of  a  note  given  on  the  pur- 
chase of  land 'by  contract  is  entitled  to  the 
benefit  of  the  vendor's  lien,  and  cannot  at- 
tach the  land  as  a  creditor  without  security, 
Gessner  v.  Palmater,  89  Cal.  89,  26  Pac.  789, 

13:  187 

5.  The  creditor  of  a  partnership  has  no 
lien  on  the  partnership  property  in  the  hands 
of  a  surviving  partner,  within  the  meaning 
of  Mont.  Code,  §  181,  providing  that  an  at- 
tachment can  be  issued  only  for  a  debt  which 
is  "not  secured  by  a  mortgage  lien  or  pledge 
upon  real  or  personal  property."  Kruger  v. 
Spieth,  8  Mont.  482,  20  Pac.  664,  3:  291 

6.  A  surviving  partner  does  not  hold  the 
partnership  property  as  a  trustee  in  such 
sense  that  he  is  exempt  from  the  levy  of  an 
attachment  in  an  action  upon  promissory 
notes  made  by  the  firm.  Id. 

7.  The  liability  of  sureties  on  a  contrac- 
tor's bond  is  not  for  the  direct  payment  of 
money,  within  the  meaning  of  a  statute  au- 
thorizing an  attachment  in  actions  on  con- 
tracts "for  the  direct  payment  of  money." 
Ancient  Order  of  Hibernians  v.  Sparrow,  29 
Mont.  132,  74  Pac.  197,  64:  128 

8.  An  attachment  is  not  authorized  in  a 
suit  for  breach  of  promise  of  marriage  by  a 
statute  authorizing  attachment  upon  the 
filing  of  an  affidavit  that  plaintiff  has  a  just 
claim  against  defendant  that  is  due,  upon 


ATTACHMENT,  I.  c.  d. 


178 


which  he  expects  to  recover  a  sum  sufficient 
to  give  jurisdiction.  Mainz  v.  Lederer,  24 
R.  L  23,  51  Atl.  1044,  59:  954 

c.  By  or  Against  Nonresidents  or  Foreign 
Corporations. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

By  nonresident. 

9.  A  nonresident  may  invoke  the  remedy 
of  attachment,  as  well  as  a  citizen.  Sheldon 
v.  Blanvelt,  29  S.  C.  453,  7  S.  E.  593,  13  Am. 
St.  Rep.  749,  1 :  685 

10.  That  a  nonresident  creditor  has  ex- 
hausted his  remedy  against  his  debtor  in  the 
state  of  his  residence,  so  as  to  be  enabled  to 
take  advantage  of  Mill.  &  V.  (Tenn.)  Code, 
§  5040,  permitting  him  to  subject  property 
in  Tennessee  to  the  payment  of  his  claim,  is 
shown  by  the  fact  that  the  property  of  the 
•debtor  in  the  state  of  his  residence  has  been 
placed  in  the  possession  of  a  receiver  under 
a  statute  forbidding  interference  with  it. 
Commercial  Nat.  Bank  v.  Matherwell  Iron 
&  S.  Co.  95  Tenn.  172,  31  S.  W.  1002, 

29:  164 
Against  nonresidents  generally. 
For  Editorial  Notes,  see  infra,  IV.  §  2. 

11.  vv'^here  a  man  has  a  settled  abode  for 
the  time  being  in  another  sta^  for  the  pur- 
pose of  business  or  pleasure,  he  is  a  non- 
resident within  the  meaning  of  the  Califor- 
nia attachment  law.  Hanson  v.  Graham,  82 
Cal.  631,  23  Pac.  56,  7:  127 

12.  The  exercise  of  the  right  of  suffrage  in 
the  state  is  not  conclusive  on  the  question  of 
domicil  for  the  purposes  of  an  attachment 
under  the  Louisiana  Code;  but  in  the  deter- 
mination of  such  question,  the  nature  of  the 
domicil  the  party  is  supposed  to  have  in  the 
state,  and  the  purpose  that  brings  him  there, 
the  time  he  spends  there  and  elsewhere 
where  his  wife  and  children  are,  his  declara- 
tions, and  his  conduct,  must  all  be  consid- 
ered. Hewes  v.  Baxter,  48  La.  Ann.  1303,  20 
So.  701,  36:  531 

13.  Nonresidence  in  the  state  for  the  pur- 
pose of  an  attachment  does  not  exist  in  the 
case  of  railroad  contractors  in  the  state  who 
intend  to  remain  therein  permanently,  and 
who  have  entered  into  a  binding  contract 
which  will  take  nearly  a  year,  if  not  longer, 
to  complete.  Munroe  v.  Williams,  37  S.  C. 
81,  16  S.  E.  533,  19:  665 

14.  While  it  is  necessary,  when  all  of  the 
distributees  are  within  the  jurisdiction  of 
the  court  in  which  an  ancillary  administra- 
tor who  has  been  compelled  to  pay  a  debt 
against  the  estate  after  he  has,  in  ignorance 
of  the  <lebt,  turned  over  the  assets  in  his 
hands  to  the  principal  administrator,  is  en- 
titled to  proceed  against  the  distributees  for 
relief,  that  all  of  them  shall  be  made  parties, 
to  the  end  that  they  shall  contribute  ratably, 
and  that  it  may  not  be  in  the  power  of  the 
administrator  to  throw  the  whole  liability 
upon  one  of  them  in  the  first  instance,  yet, 
when  they  are  not  all  within  the  jurisdiction 
of  the  court,  he  may  sue  such  of  them  as  are 
within  the  reach  of  the  court's  process;  and, 
if  they  are  all  nonresidents,  and  any  of  them 


have  property  within  reach  of  such  process, 
it  may  be  subjected  by  attachment  in  a  suit 
in  equity.  McClung  v.  Sieg,  54  W.  Va.  467, 
46  S.  E.  210,  66:  884 

15.  A  nonresident's  shares  of  stock  in  a 
foreign  corporation  cannot  be  reached  by  at- 
tachment in  a  state  where  the  corporation 
is  doing  business,  although  its  officers  are 
also  in  such  state.  Ireland  v.  Globe  Milling 
&  R.  Co.  19  R.  I.  180,  32  Atl,  921,  29:  429 
Against  nonresident  partnership. 

See  also  infra,  31. 

16.  The  nonresidence  of  one  partner  will 
not  be  ground  for  an  attachment  against  the 
firm  to  the  prejudice  of  social  creditors. 
Goodman  Bros.  &  Co.  v.  Henry,  42  W.  Va. 

526,  26  S.  E.  528,  35:  847 

17.  Attachment  against  the  property  of  a 
partnership  on  the  ground  of  nonresidence 
may  be  had,  where  the  members  of  the  firm 
reside  out  of  the  state,  although  the  firm 
carries  on  business  in  the  state,  and  the 
statute  allows  a  partnership  to  be  sued  in 
the  firm  name  and  service  to  be  made  by 
leaving  a  copy  of  the  summons  at  its  usual 
place  of  business.  By  era  v.  Schlupe,  51  Ohio 
St.  300,  38  N.  E.  117,  25:  649 
Against  foreign  corporations. 

See  also  supra,  15. 

18.  No  jurisdiction  can  be  acquired  of  a 
domestic  corporation  by  an  attachment  is- 
sued against  it  as  a  foreign  corporation. 
Bernhardt  v.  Brown,  118  N.  C.  700,  24  S.  E. 

527,  715,  119  N.  C.  506,  26  S.  E.  162, 

36:  402 

19.  Jurisdiction  by  attachment  and  publi- 
cation can  no  longer  be  obtained  against  a 
corporation  originally  chartered  in  a  foreign 
state,  after  it  has  obtained  a  domestic  char- 
ter. Id- 

d.  For  Fraud. 

Strict  Construction   of   Statute   as  to,   see 

Statutes,  515. 
See  also  infra,  47. 
For  Editorial  Notes,  see  infra,  TV.  §  3. 

20.  A  conveyance  by  a  debtor,  legally  or 
constructively  fraudulent  as  to  creditors,  as 
contradistinguished  from  fraudulent  in  fact, 
is  not  ground  for  attachment  by  them  under 
the  Illinois  attachment  law.'  Weare  Com- 
mission Co.  V.  Druley,  156  111.  25,  41  N.  E.  48, 

30:465 

21.  Individual  property  of  an  innocent 
partner  is  not  subject  to  attachment  for  a 
partnership  debt  fraudulently  contracted 
by  his  copartner,  under  a  general  provision 
of  the  statute  authorizing  attachment  for 
fraud  of  the  debtor,  where  another  provision 
expressly  says  that  in  a  case  for  attachment 
against  partners  or  joint  creditors  the  writ 
shall  issue  against  the  property  and  effects 
of  those  brought  within  the  statute.  Jaffray 
V.  Jennings,  101  Mich.  515,  60  N.  W.  52, 

25:  645 

22.  Property  of  one  partner  in  a  law  firm 
cannot  be  attached  for  failure  of  his  copart- 
ner to  account  for  money  collected  under 
contract  made  by  the  latter  in  the  firm 
name,  but  in  his  own  purely  personal  trans- 
action and   without  the  knowledge  of  the 


174 

other  partner,  that  the  firm  would  make  such 
collection  free  of  charge.  Davis  v.  Dodson, 
^  Ga.  718,  22  S.  E.  645,  29:  496 

23.  The  shipping  by  an  insolvent  corpora- 
tion of  its  manufactured  products  out  of  the 
state  to  fill  orders  by  which  the  goods  are 
to  be  delivered  in  other  states,  so  that  they 
remain  its  property  when  sent  out  of  the 
state,  is  a  removal  of  its  property  beyond 
the  state  which  constitutes  a  ground  for  at- 
tachment, although  its  business  cannot  be 
successfully  conducted  unless  the  property 
is  sent  outside  the  state  for  sale.  Queen 
Citv  Mfg.  Co.  V.  Blala«k  (Miss.)  No  Off.  Rep. 
18  So.  800,  31 :  222 

24.  The  making  of  a  false  written  state- 
ment as  to  financial  ability,  for  the  purpose 
of  obtaining  credit,  does  not  make  one  liable 
to  an  attachment  in  favor  of  a  creditor  who 
had  no  knowledge  of  such  statement  until 
after  the  credit  was  given,  under  N.  Y.  Laws 
1894,  chap.  736,  §  1,  authorizing  th«>  granting 
of  an  attachment  where  defendant  for  the 
purpose  of  procuring  credit  makes  a  f^lse 
statement  in  writing  as  to  his  financial  re- 
sponsioilities.  Penovar  v.  Kelsey,  150  N.  Y. 
77,  44  N.  E.  788,       '  34:  248 


ATTACHMENT,  II.  a,  b. 


H.  Interest  Acquired;  Lien;  Priority. 

a.  In  General. 

As  Custody  of  Law,  see  Courts,  418,  419. 
Insurable    Interest    of    Attaching    Creditor. 

see  Insurance,  139. 
Surrendering  Benefit  of  Attachment  Before 

Sharing  in  Benefits  of  Receivership,  see 

Receivers,  79,  80. 

25.  In  the  absence  of  fraud  and  statutory 
regulations,  a  creditor  proceeding  by  execu- 
tion or  attachment  obtains  only  such  rights 
in  the  property  seized  as  his  debtor  had  at 
the  time  of  the  seizure.  Lipscomb  v.  Condon, 
56  W.  Va.  416,  49  S.  K  392,  67:670 

26.  An  attachment  creditor  who  sits  back 
during  the  pendency  of  legal  proceedings, 
and  allows  the  receiver  of  the  estate  to  in- 
sure the  attached  property  for  the  benefit  of 
the  estate,  and  who  all  the  time  is  main- 
taining a  hostile  attitude  towards  the  re- 
ceiver and  the  assignment  under  which  he 
holds,  cannot,  after  money  is  collected  by  the 
receiver  on  an  insurance  policy,  claim  a  trust 
in  his  favor  on  account  of  his  attachment 
on  the  burned  building,  which  might  have 
satisfied  his  execution  had  it  not  burned. 
McLaughlin  v.  Park  Citv  Bank,  22  Utah,  473, 
63  Pac.  589,  *  54:  343 

b.  Lien;  Priority. 

Priority    Between    Attachment    and    Bank 

Check,  see  Checks,  21. 
Effect  of  Subsequent  Commencement  of  In- 

solvenov    Proceedings,    see    Conflict    of 

Laws,  267,  271,  272. 
Priority    as    to    Previous    Assignment    for 

Creditors  in  Other  State,  see  Conflict  of 

I^ws,  266. 


Against  Insolvent  Corporation,  see  Corpora- 
tions, 766-768. 
See  also  infra,  51. 
For  Editorial  Notes,  see  infra,  IV.  §§  6,  7^ 

Lien  generally. 

Discharge  of,  by  Commencement  of  Bank- 
ruptcy Proceedings,  see  Bankruptcy,  14. 

Effect  on,  of  Discharge  in  Bankruptcy,  see 
Bankruptcy,  50a. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
274. 

Vested  Right  in,  see  Constitutional  Law, 
159. 

See  also  Mortgage,  229. 

27.  An  attachment  lien  on  land,  the  legal 
title  to  which  is  in  the  attachment  debtor, 
is  subject  to  every  equity  which  exists 
against  the  debtor  at  the  time  of  the  levy 
of  the  attachment,  and  courts  of  equity  will 
limit  the  lien  to  the  actual  interest  of  the 
attachment  debtor  in  such  real  estate.  Wes- 
tervelt  v.  Hagge,  61  Neb.  647,  85  N.  W.  852, 

54:  333 

28.  The  lien  of  an  attachment  levied  on 
land  fraudulently  alienated  becomes  effective 
and  enforceable  after  the  real  estate  is  re- 
conveyed  and  restored  to  the  fraudulent 
grantor,  the  same  as  though  the  conveyance 
in  the  first  instance  had  not  been  made.    Id. 

29.  An  attachment  levied  on  real  estate 
fraudulently  "alienated  by  the  attachment 
debtor  and  grantor  for  the  purpose  of  hin- 
dering, delaying,  and  defrauding  creditors,, 
even  though  the  legal  title  of  record  is  in  an- 
other, gives  the  attachment  creditor  a  lien 
upon  the  interest  of  the  debtor  in  the  land 
attached,  which  he  may  enforce  by  appro- 
priate proceedings  after  recovery  of  judg- 
ment. Id. 

30.  Shares  of  corporation  stock  are  includ- 
ed in  the  terms  "personal  property,  choses  in 
action,  and  other  securities,"  as  used  in  W. 
Va.  Code  1899,  chap.  106,  §  9,  giving  the 
plaintiff  in  an  aouichment  proceeding  a  lien 
on  the  personal  property  of  the  debtor  front 
the  time  of  the  levying  of  the  attachment,  or 
serving  a  copy  tbereof  on  the  garnishee,  on 
all  the  personal  property,  choses  in  action, 
and  other  securities  of  the  defendant  in  the 
hands  of  the  garnishee,  and  on  any  real  es- 
tate of  the  debtor  levied  on  by  virtue  there- 
of, from  the  suing  out  of  the  same.  Lips- 
comb v.  Condon,  56  W.  Va.  416,  49  S.  E.  392. 

67:  670 

31.  Service  of  a  warrant  of  attachment 
upon  a  resident  member  of  a  nonresident 
partnership,  to  reach  a  sum  due  by  the 
partnership  to  a  nonresident  corporation, 
does  not  create  a  lien  upon  the  liability  of 
the  nonresident  partners  to  pay  the  debt,  so- 
as  to  form  the  basis  of  a  suit  against  them 
when  they  can  be  served  with  process  within 
the  state.  National  Broadway  Bank  v. 
Sampson,  179  N.  Y.  213,  71  N.  E.  766. 

66:  606 
Waiver  or  forfeiture  of  lien. 
Retrospective    Legislation    as   to,    see    Con- 
stitutional Law,  119. 
See  also  Garnishment,  90. 

32.  An  attachment  creditor  cannot  be 
deemed  guilty  of  laches  such  as  will  forfeit 


ATTACHMENT,  II.  b. 


175 


his  lien  where  he  obtains  judgment  in  his  ac- 
tion within  two  years  after  the  attach- 
ment is  levied  and  within  five  months  there- 
after sets  up  his  attachment  in  a  suit  to 
which  he  is  made  a  defendant,  which  is 
brought  to  foreclose  a  mortgage  on  the 
property  upon  which  he  claims  a  lien.  Wes- 
tel-velt  V.  Hagge,  16  Neb.  647,  85  N.  W.  852, 

54:  333 
Priority  between  attachment  liens. 

33.  An  attachment  issued  upon  a  debt 
not  due  may  be  avoided  by  a  junior  at- 
taching creditor  and  postponed  to  his  at- 
tachment lien,  where  there  is  no  statute  au- 
thorizing the  issuance  of  an  attachment  for 
a  debt  not  due  under  the  circumstances  and 
conditions  of  the  case.  Davis  v.  H.  B.  Claflin 
Co.  63  Ark.   157,  38  S.  W.  662,  1117, 

35:  776 

34.  A  groundless  attachment  based  on 
false  allegations  of  the  debtor's  *^raudulent 
intent  to  hinder  and  delay  creditors  is  a  con- 
structive fraud  on  the  part  of  the  creditor, 
which  will  postpone  him,  as  to  all  his  debts 
not  due  when  the  attachment  is  sued  out, 
to  a  junior  attachment  creditor.  Id. 
Priority  between  attachment  and  mortgage. 
Conflict  of  Laws  as  to.  see  Conflict  of  Laws, 

292-294. 
See  also  Corporations,  768;    Chattel   Mort- 
gage, 46. 

35.  Under  the  law  of  Arkansas,  as  ex- 
tended by  act  of  Congress  over  the  Indian 
territory,  the  owner  of  an  unrecorded  mort- 
gage out  of  possession,  although  having  the 
legal  title  to  the  property,  cannot  defeat  an 
attachment  upon  the  property  as  that  of  the 
mortgagor,  McFadden  v.  IBlocker,  2  Ind. 
Terr.  260,  48  S.  W.  1043,  58:  878 

36.  Creditors  bringing  attachment  suits 
on  prior  judgments  are  within  the  meaning 
of  a  statute  making  mortgages  liens  from 
the  time  they  are  filed  for  record,  and  de- 
claring that  such  filing  shall  be  notice  to  all 
persons,  so  that  their  attachments  will  take 
precedence  of  unrecorded  mortgages,  al- 
though founded  on  pre-existent  debts.        Id. 

37.  A  judgment  by  default  against  the 
debtor  in  an  attachment  suit  does  not  es- 
tablish the  lien  against  the  claim  of  an  in- 
tervening mortgage  creditor  so  as  to  pre- 
vent a  subsequent  statute  validating  mort- 
gages from  operating  to  defeat  the  attach- 
ment lien.  Evans-Snider-Buel  Co.  v.  Mc- 
Fadden, 44  C.  C.  A.  494,  105  Fed.  293, 

58:  900 

38.  The  filing  of  an  interplea  in  an  at- 
tachment suit  setting  up  a  claim  to  the 
property  under  a  mortgage  improperly  ad- 
mitted to  registration  will  not  prevent  the 
judgment  in  the  attachment  suit  from  per- 
fecting the  attachment  lien  so  that  it  can- 
not be  devested  by  a  subsequent  statute 
validating  the  registration  of  the  mortgage. 
McFadden  v.  Blocker,  2  Ind.  Terr.  260,  48  S. 
W.  1043.  58:  878 

38a.  Attachments  levied  on  the  property 
of  a  mortgagor  subsequently  to  the  execu- 
tion of  the  mortgage  are  properly  given 
priority  over  money  afterwards  paid  over 
on  the  security  of  the  mortgage  in  accord- 
ance with  the  agreement  under  which  it  was 


executed.     Dummer   v.  Smedley,  110  Mich. 
466,  68  N,  W.  260,  38:  490 

38b.  A  deed  of  trust  in  favor  of  certain 
creditors  does  not  become  operative  without 
their  consent  and  before  they  have  knowl- 
edge of  it,  so  as  to  take  priority  over  an 
attachment  whic'h  is  levied  after  the  ac- 
ceptance of  the  trust  by  the  trustee  and  his 
taking  possession  of  the  property.  Alliance- 
Milling  Co.  V.  Eaton,  86  Tex.  401,  25  S,  W. 
614,  24:  369 

38c.  A  lien  may  be  given  to  a  second  mort- 
gagee and  to  a  receiver  of  a  corporation, 
lor  money  advanced  to  pay  interest  on  the 
first  mortgage  and  taxes,  as  against  attach- 
ment creditors  of  the  corporation.  Dummer 
V.  Smedley,  110  Mich.  466,  68  N.  W.  260, 

38:  490 
Priority  between  attachment  and  other  liens. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

327. 
Between  Attachment  and  Garnishment  Lien, 

see  Garnishment,  98,  100. 
Between  Attachment  and  Innkeeper's  Lien, 

see  Innkeepers,  43. 

39.  The  juagment  of  the  court  in  an  at- 
tachment case  cannot  create  a  lien  operat- 
ing retroactively,  so  as  to  cut  out  interven- 
ing rights  of  others.  West  v.  People's  Bank, 
67  Miss.  729,  7. So.  513,  8:  727 

40.  An  attachment  levied  upon  pledged 
propertA'  as  that  of  the  pledgeor  is  subject 
to  the  lien  of  the  pledge.  First  Nat.  Bank 
V.  Harkness.  42  W.  Va.  156.  24  S.  E.  548. 

32:  408 

41.  One  who  has  acquired  a  lien  on  real 
estate,  pending  litigation,  after  the  levy  of 
an  attachment  thereon,  is  charged  with  no- 
tice and  takes  subject  to  the  rights  of  the 
plaintiff  in  the  action  wherein  the  attach- 
ment was  levied  and  final  judgment  ren- 
dered. Westervelt  v.  Hagge,  61  Neb.  647, 
85  N.  W,  852.  54:  333 

42.  No  valid  lien  is  acquired  by  an  at- 
tachment on  real  estate  by  a  creditor  of  a 
fraudulent  grantee  to  whom  the  legal  title 
has  been  conveyed  in  fraud  of  the  rights 
of  the  creditors  of  the  fraudi^ent  grantor, 
and  who  has  no  actual  interest  therein, 
and  who  restores  and  reconveys  the  real 
estate  to  the  fraudulent  grantor,  who  vol- 
untarily encumbers  the  same  for  the  benefit 
of  his  creditors,  as  against  such  creditors  of 
the  grantor  under  their  liens  thus  acquired. 

Id. 
■  43.  A  written  transfer  of  a  dertificate  of 
shares  of  stock  in  a  corporation,  made  in 
good  faith  and  for  value,  Dossession  being 
taken  thereof  as  a  pledge  for  the  payment 
of  a  private  debt  of  the  assignor,  and  the 
transfer  of  which  is  not  entered  on  the 
proper  book  of  the  corporation,  has  prefer- 
ence over  a  subsequent  attachment  thereof 
in  favor  of  a  creditor  of  the  assignor  or 
transferrer  of  the  stock.  Mapleton  Bank  v. 
Standrod,  8  Idaho.  740,  71  Pac.  119,  67:  656 
44.  The  right  of  a  creditor  to  sequester  a 
portion  of  the  debtor's  property  by  attach- 
ment, and  thereby  gain  priority  over  other 
creditors,  is  suspended  by  the  appointment 
of  a  receiver.  New  Haven  Wire  Co.  Cases, 
57  Conn.  352,  18  Atl.  266,  5:  300 


176 


ATTACHMENT,  III.  a— c. 


45.  The  ratification  of  the  act  of  an  at- 
torney in  bringing  an  unauthorized  attach- 
mentsuit  will  not  relate,  back  to  the  time  of 
the  commencement  of  the  suit,  so  as  to 
give  the  attachment  lien  priority  over  the 
liens  of  third  parties  which  have  been  ac- 
quired in  good  faith  during  the  interval 
between  the  bringing  of  the  suit  and  the 
ratification.  Carruth-Bynies  Hardware  Co. 
V.  Deere,  53  Ark.  140,  13  S.  W.  517,       7:  405 


in.  Procedure, 
a.  Affidavits,  Petition,  etc. 

Consideration  of,  in  Determining  Whether 
Other  Action  is  Fraudulent,  see  Bank- 
ruptcy, 58. 

See  also  intra,  57. 

For  Editorial  Notes,  see  infra,  IV.  §  10. 

46.  A  statement  of  material  facts  in  an 
affidavit  for  attachment  must  be  certain  and 
definite  in  a  legal  point  of  view,  so  as  to  in- 
form those  entitled  to  defend  the  attach- 
ment what  particular  facts  they  must  repel. 
Goodman  Bros.  &  Co.  v.  Henry,  42  W.  Va. 
626,  26  S.  E.  528,  35:  847 

47.  A  mere  statement  that  a  debtor  has 
conveyed  or  attempted  to  convey  his  prop- 
erty with  intent  to  defraud  is  not  sufficient 
ground  lor  an  attachment  without  stating 
facts  and  circumstances  to  sustain  the 
charge  of  fraud.  Id. 

48.  Where  the  affidavit  for  attachment 
and  other  papers  in  a  cause  show  that  the 
defendants  are  nonres-idents,  and  no  order 
of  publication  has  been  taken  on  the  return 
day  of  the  process,  the  plaintiff  is  entitled 
to  a  reasonable  time  in  which  to  perfect  his 
suit  by  order  of  publication,  and  the  suit 
does  not  abate  immediately  upon  the  retvuTi 
of  the  process  and  failure  to  take  the  order 
of  publication.  McClung  v.  Sieg,  54  W.  Va. 
467,  46  8.  E.  210,  66:  884 
Supplemental  affidavits. 

For  Editorial  Notes,  see  infra,  IV.  §  10. 

49.  The  provision  allowing  time  to  file  a 
supplemental  affidavit  of  other  material 
facts  to  show  ground  of  attachment,  made 
by  W.  Va.  Code,  chap.  106,  §  1,  is  remedial, 
and  should  be  liberally  construed.  Good- 
man Bros.  &  Co.  v.  Henrv,  42  W.  Va.  526, 
26  S.  E.  528,  ■  35:  847 
Amendments, 

For  Kilitorial  Notes,  see  infra,  IV.  §  10. 

50.  An  attachment  suit  maj  be  amended 
so  as  to  embrace  the  same  cause  of  action 
against  persons  who  have  intervened  to 
claim  the  property  as  was  set  up  against  the 
ori;.aiial  defendant.  Finch  v.  Gregg,  126  N. 
C.  176,  35  S.  E.  251,  49:  679 

51.  An  amendment  to  the  prejudice  of  a 
second  lien  l)y  a  deed  of  trust  or  attachment 
cannot  be  made  to  an  affidavit  for  an  at- 
tachment under  W.  Va.  Code,  chap.  106,  §  1, 
allowing  time  to  file  a  supplemental  affi- 
davit. [Court  equally  divided.]  Goodman 
Bros.  &  Co.  v.  Henry,  42  W.  Va.  526,  26  S. 
E.  528,  35:  847 

52.  An  attachment  is  discharged  as  to  an 


assignee  for  creditors  of  the  defendant  by  an 
amendment  to  the  complaint  and  affidavit 
for  attachment,  made  after  the  assignment, 
which  substitutes  an  entirely  different  and 
distinct  cause  of  action.  Heidel  v.  Benedict, 
61  Minn.  170,  63  N.  W.  490,  31:  422 

b.  Bonds;  Liability  on. 

For  Editorial  Notes,  see  infra,  IV.  §  11. 

53.  bureties  on  an  indemnity  bond  to  a 
sheriff  to  cause  him  to  levy  an  attachment 
may  be  held  liable  as  principals  to  the  own- 
ers of  the  property  attached  if  the  attach- 
ment is  wrongful.  Rice  v.  Wood,  61  Ark. 
442,  33  S.  W.  636,  31:609 

c.  Dissolution;   Setting  Aside. 

Abatement  of  Proceedings,  see  Abatement 
and  Revival,  35,  45. 

Appealability  of  Order  as  to  Quashing,  see 
Appeal  and  Error,  40. 

Review  of  Finding  as  to,  see  Appeal  and 
Error,  797. 

Proper  Party  to  Certiorari  to  Review  Deci- 
sion as  to,  see  Certiorari,  31. 

By  Commencement  of  Insolvency  Proceed- 
ings, see  Conflict  of  Laws,  267,  271,  272. 

By  Assignment  for  Creditors,  see  Constitu- 
tional Law,  1199;  Parties,  218. 

Effect  of  Subsequent  Appointment  of  Receiv- 
er, see  Courts,  419. 

See  also  supra,  33,  48,  52. 

54.  The  failure  to  continue  an  attachment 
suit  as  required  by  statute  does  not  defeat 
the  jurisdiction  of  the  court,  which  has  been 
lawfully  acquired  over  the  plaintiffs  and  the 
property  attached.  Morey  v.  Hoyt,  62 
Conn.  542,  26  Atl.  127,  19:  611 

55.  An  attachment  suit  against  a  foreign 
building  and  loan  association  is  not  cut  off 
by  the  fact  that  it  has  gone  into  the  hands 
of  a  receiver  in  its  home  state.  Southern 
Bldg.  &  L.  Asso.  V.  Price,  88  Md.  155,  41 
Atl.  53,  42:  206 

56.  A  claim  filed  with  a  receiver  of  a 
corporation  by  a  nonresident  creditor,  with 
an  eSpress  reservation  or  condition  that  by 
filing  it  he  does  not  intend  to  abandon  any 
rights  gained  by  reason  of  an  attachment 
suit  previously  brought  in  another  state, 
does  not  estop  the  creditor  from  pursuing 
the  attachment.  Linville  v.  Hadden,  88  Md. 
594,  41  Atl.  1097,  43:  222 
Grounds  for;    right  to. 

For  Editorial  Notes,  see  infra,  IV.  §  8. 

57.  An  attachment  creditor  cannot  have  a 
prior  attachment  set  aside  oecause  it  was 
without  legal  grounds,  and  was  based  on  an 
affidavit  known  to  be  false,  by  both  parties 
to  the  action  in  which  it  was  filed,  and  was 
permitted  by  the  debtor  while  in  failing  cir- 
cumstances to  give  a  preference.  Glaser 
Bros.  v.  First  Nat.  Bank,  62  Ark.  171,  34 
S.  W.  1061,  35:  765 

58.  False  statements  by  one  creditor  to 
another  as  to  an  intent  not  to  procure  an 
attachment  will  not  constitute  any  ground 
for  setting  aside  an  attachment  on  com- 
plaint of  the  other  creditor.  Id. 


ATTACHMENT,  IV.  (Ed.  Notes.) 


177 


Waiver  of  right  to. 

59.  'Ihe  right  of  attachment  debtors  to 
move  to  quas^h  the  attachment  is  not  waived 
by  the  fact  that  a  bond  was  given  to  the 
sheriff  for  the  retention  of  the  chattels  at- 
tached, by  a  stranger  to  the  suit  in  whose 
possession  tncy  were.  Pierce  v.  Johnson,  93 
Mich.  125,  53  IS*.  W.  16,  18:  486 


IV.  Editorial  Notes. 

See  also  CJarnishment,  IV. 

^  I.  Generally. 

By  Federal  court  to  obtain  jurisdiction.     6: 

252.* 
Corporations  as  'persons  under  laws  relating 

to  attachment.     19:  224. 
Effect  of  foreign  attachment.     17:  88. 
Effect  of  as  election  of  remedies  in  case  of 
fraudulent    puKchase.     15: 
90.  " 

Jurisdiction   obtained  by   attachment   proc- 
ess.    10:  505.* 
Eight  to  attachment  or  order  of  arrest  in 
breach    of    promise     case. 
59:  954. 
Waiver  of  lien  by.    50:  714. 
First  and  last  days  in  computing  time  on, 

49:  223. 
§  2.  Nonresidence. 
Attachment  of  property  of  nonresident.    10: 

504.* 
What  is  nonresidence  for  the  purpose  of  at- 
tachment.   19:  665. 
Protracted  absence  from  the  state.    19: 

665. 
Absence   on   account   of   war.      19:  665. 
Absence  on  account  of  contract  work  on 

railroads.     19:  665. 
Temporary  absence  from  the  state     19: 

665. 
Having  a  place  of  business  in  the  state. 

19:  666. 
Temporary  residence  in  the  state  where 
attachment      issues.      19: 
666. 
Effect   of   mere   presence   in   the   state. 

19:  667. 
Coming  into  the  state  to  locate  where 
the      attachment      issues. 
19:  667. 
Going  away   to   locate   elsewherie.      19: 

667. 
Absconding  debtors.     19:  668. 
Fugitives  from  justice.     19:  668. 
Nonresidence,  generally.    19:  668. 
§  3.  Fraud. 
See  also  infra,  §  8. 

What  intent  to  defraud  will  sustain  an  at- 
tachment.    30:  465. 
Actual  as  distinguished  from  construc- 
tive fraud.    30:  465. 
Fraudulent   contraction   of   debts.     30: 

468. 
Against  absconding  debtors.     30:  470. 
For  removal  of  property.     30:  471. 
For   assignment,   disposal,   or   secretion 
of  property.    30:  473. 
The  intent  to  defraud.     30:  473. 
Participation   in   fraudulent  intent 
by  transferee.     30:  475. 
L.R.A.  Dig.— 12. 


Gifts.     30:  476. 

Sales  of  property.     30:  470. 

Mortgaging    or    pledging   property. 

30:  479. 
Assignments  for  the  benefit  of  cred- 
itors.    30:  480. 
Threats    to    assign    or    dispose    of 

property.     30:  482. 
Making  preferences.     30:  484. 
Transfers    in    pavment    of    debts. 

30:  485.   " 
Confession  of  judgment.    30:  486. 
Transfers  and  withdrawals  by  part- 
ners.   30:  486. 
Formation  of  and  transfer  to  corpo- 
ration      or       partnership. 
30:  487. 
Overbuying.     30:  488. 
Refusal  to  pay.     30:  488. 
Statements  and  misrepresentations 

by  debtor.     30:  488. 
Conversion  of  property.     30:  490. 
Miscellaneous  cases.     30:  490. 
Right  of  creditors  to  attack  attachment  for 
fraud   and   collusion.     35: 
779. 
§  4.  Property  subject;  where  subject. 
As  to  Property  Subject  to  Levy  Generally, 
see  Levy  and  Seizure,  IV. 
§§    1-4." 
Property  of  national  banks.    6:  226.* 
Individual  property  of  one  partner  for  fraud 
of  his  copartner.     25:  645. 
Foreign  railroad  cars.'    64:  501. 
Pew.     22:  215. 

Property  in  the   hands   of   an  assignee   for 
creditors.      26:  593. 
Valid  assignments.     26:  593. 
Proceeds  of  assigned  property.    26:  593. 
Choses  in  action.    26:  593. 
Acknowledgment    and   record.     26:  594. 
Acts     of     assignee — qualifying — inven- 
tory.    26 :  594. 
Possession.    26:  594. 
Estoppel.    26:  595. 
Fraudulent  and  void  assignments.     26: 

595. 
Statutory  rights  of  assignee.     26:  596. 
When   assent   of   creditors   is   required 

26:  599. 
Partnership  assignments.     26:  600. 
Shares  of  stock  in  foreign  corporation.    55: 
796. 
Liability  of  rights  or  shares  to  attach- 
ment or  garnishment.    55: 
797. 
Presence  or  absence  of  certificates.     .'r5: 
806. 
Property  in  custody  of  law.    10:  529.* 
§  5.  Exemption. 
For  Exemption,  Generally,  see  Exemptions, 

IV. 
Exemption    of    laborers'    wages    from.     18: 

309,  586. 
Protection  of  pension  money  fund.    3:  219.* 
Liability  for  evasion  of  exemption  laws  of 
domicil  by  action  in  other 
state.     36:  582. 
§  6.  Priorities. 

SuflBciency  of  attachment  to  confer  priority 
of  claim  of  United  States. 
29:  234. 


178 


ATTACHMENT,  IV.  (Ed.  Notes);  ATTAINDER. 


Right  of  landlord  as  against  attaching  cred- 
itors of  tenant.     12:  848.» 
Right  of  possession  as  between  receiver  and 
creditor     levying     attach- 
ment    on     propertv.     20: 
392. 
Effect  as  against  attachment,  of  pledge  or 
other    transfer    of    corpo- 
rate   stock    not    made    in 
books    of    company.      67: 
656. 
§  7.  Proceedings  in  other  states. 
Right  of  attachment  as  affected  by  appoint- 
ment  of   foreign    receiver. 
23:52. 
Effect    of   insolvency    proceedings    in    other 
state.     23:  35.      [See   also 
65:  353.] 
Priority    of    foreign    assignment    over    sub- 
sequent   domestic    attach- 
ment.   17:  85. 
Priority  of  foreign  attachment  over  foreign 

assignment.     17:  88. 
§  8.  Right  of  creditors  to  question  validity 

of. 
What  creditors  may  question  the  validity  of 
attachment.      35:  766. 
Creditors  interested  in  the  propertv  at- 
tached.    .35:  766. 
Attachment   creditors.     35:  767. 
Judgment  creditors.     35:768. 
Mortgage  creditors.     35:  768. 
Partnership   creditors.     35:  769. 
Garnishee      haviug      an      interest. 

35:  769. 
General  creditors  in  absence  of  de- 
fendant.     35:  769. 
Receiver  or  assignee  of  creditors.     35: 
770. 
Insolvency  gives  an  interest  in  the 

property.      35:  770. 
Rule  as  to  receivers.     35:  770. 
Rule  as  to  assignee.    35:  770. 
How  creditors  may  question  the  validity  of 
attachment.    35:  771. 
In   the   absence   of   statute   relating   to. 
interventions.      35:  771. 
Motion  in  court  of  law.     35:  771. 
Bv  other  proceedings  at  law.     35: 

77i. 
Bill  in  equity.    35:  771. 
Bv    proceedings    under   a    statute.      35: 
772. 
Intervention  and  defense.     35:  772. 
Not     by     proceedings     in     another 

court.    .35:  774. 
Assertion  of  vendor's  lien  or  privi- 
lege.    35:  774. 
For  what  creditors  may  question  the  validi- 
ty of  attachment.    35:775. 
In  general.     35:  775. 
For  want  of  cause  of  action.    35:  775. 
For    illegality    or    irregularity    in    the 
proceedings.      35:  777. 
In  general.     35:  777. 
For  lack  of  ground  for  attachment. 

35:  778. 
For  insufliciencv  of  affidavits.     35: 
778. 
For  fraud  and  collusion.     35:  779. 
Rulo  stated  gonnrally.    .35:  779. 
In  amount  of  demand.     35:  779. 


In  preference  of  creditors.     35:  780. 
In  benefit  to  debtor  himself.     35: 

781. 
Other  frauds  and  deceits.     35:  781. 
For  injury  to  viested  rights  by  altera- 
tion      of       the       amount 
claimed.     35:  782. 
At  what  stage  of  the  proceeding  creditors 
may  question  the  validity 
of    the    attachment.     35: 
782. 
Before  the  trial.    35:  782. 
After  the  trial.    35:783. 
§  9.  Judgment. 

Extent  of  relief  when  process   served  con- 
structively    against    non- 
resident.   50:  583. 
§  10.  Affidavit. 

Right    to  amend   affidavit    for   attachment. 
31:  422. 
Statute    permitting    amendments.     31: 

422. 
General    statute    of    amendments.     31: 

424. 
What  is  matter  of  substance  and  mat- 
ter of  form.    31 :  425. 
Statute   denying  amendment.     31:  425. 
Rule  in  absence  of  statute.     31:  425. 
Additional  affidavits.    31:  427. 
Right  to  amend  as  against  third  person. 
31:  428. 
§11.  Bond;    damages  for  wrongful  attach- 
ment. 
Form    of    judgment    on    attachment    bond. 

62:442. 
Execution  of  bond  on  condition  that  other* 

shall  sign.     45:  334. 
Loss  of  profits  as  element  of  damages  under 
wrongful  attachment.    52: 
54. 
Who    is   real   party    in    interest   who   must 
bring    action    on     attach- 
ment bond.     64:  605. 
§  12.  Injunction. 

Injunction    in   aid   of  attachment.      20:  446. 
Injunction   in   favor  of   attaching   creditors 
against   sale   under  execu- 
tic"  or  subsequent  attach- 
ment.    30:  127. 
Against  attachment  in  other  state.     21:  75. 


14 


ATTAINDER. 


Effect  of  Constitutional  Provision  as  to, 
on  ^lurderer's  Rigrht  to  Inherit,  see 
Descent  and  Distribution,  12.  14. 

1.  A  resolution  expelling  a  member  from 
the  legislature  is  not  a  bill  of  attainder 
forbidden  bv  the  Constitution.  French  v. 
Senate.   ]46"Cal.  604,  80  Pac.   1031,  69:556 

2.  The  provision  of  a  state  Constitution 
disfranchising  all  persons  who  have  volun- 
tarily borne  arms  against  the  .government 
of  the  United  States  or  aided  or  abetted  an 
attempted  overthrow  of  the  government, 
unless  the  disability  has  been  removed  by 
service  and  honorable  discharge  in  the 
Army,  or  by  the  legislature,  is  not  invalid 
as  a  bill  of  attainder,  in  violation  of  U.  S. 


ATTEMPT— ATTORNEYS. 


17» 


Ck)iist.  art.  1,  §  10.     Bovd  v.  Mills,  -53  Kan. 
594,  37  Pac.   16,  25:  486 


ATTEMPT. 

To  Commit  Crime,  see  Criminal  Law,  I.  c. 
Punishment  for,  see  Criminal  Law.  223,  224, 

240. 
To   Procure  False   Testimony,   Evidence   of, 

see   Evidence,   1796,   1797. 

Editorial   Notes. 

To  commit  offenses;   what   constitutes.     3: 

743.* 
As  Crimes.  10:  109.* 
Solicitation    as    attempt   to    commit    crime. 

25:  434. 


ATTENDANCE. 

At  School,  see  Schools,  9,  10. 

♦•» 


ATTESTATION. 


Of  Change  of  Beneficiarv,  see  Insurance.  738, 

739. 
Of  Bill,  see  Statutes,  6. 
Of  Will,  see  Wills,  I.  b. 


ATTESTATION  CLAUSE. 

To  Will,  see  Evidence,  669;   Wills.  46,  123, 
125. 


ATTESTING  WITNESSES. 
See  Subscribing  Witnesses. 

♦«» 

ATTORNEY  GENERAL. 

Application  for  Rehearing  by,  as  Amicus 
Curhr,  see  Appeal  and  Error,  1254. 

Affidavit  by,  for  Certiorari,  see  Certiorari, 
20,  34,   .35. 

Power  to  Dismiss  Prosecution,  see  Criminal 
Law,  VI.    §   24. 

Judicial  Notice  of  Order  to  Prosecute  Crim- 
inal  Proceedings,  see  Evidence,  28. 

Signing  of  Indictments  by,  see  Indictment, 
etc.,  6. 

Prior  Decision  as  Bar  to  Suit,  see  Judgment, 
297. 

As  Proper  Party  to  Suit,  see  Parties,  138. 

Effect  of  Refusal  to  Bring  Suit,  see  Parties, 
93. 

1.  The  mere  signature  of  the  attorney 
general  in  his  official  capacity,  to  a  com- 
plaint or  bill  shown  to  be  that  of  a  private 
relator,  is  not  sufficient  to  impress  it  with 


the  functions  and  capacity  of  an  informa- 
tion competent  to  put  in  motion  the  ma- 
chinery of  the  courts,  whereby  they  will 
take  cognizance  of  ijuestions  pertaining  to 
the  high  prerogative  powers  of  the  state, 
or  affecting  the  whole  people  in  the  sover- 
eign capacitv.  State  ex  rel.  Taylor  v.  Lord, 
28   Or.  4S9/43   Pac.   471,  31:473 

Right  to  bring  suit. 
For    Enforcing    Provision    as   to   Height    of 

Building,  see  Buildings,  5,  6. 
Proceeding   for   Dissolution   of  Corporation, 

see  Corporations,  745-749. 
To  Protect  Fish,  see  Fisheries,  11. 
To  Restrain  Corporate  Excess  of  Power,  see 

Injunction,  227. 
Necessity  of   Bringing   Mandamus   Proceed- 
ing, see  Mandamus,  157,  163,  164. 
For  Abatement  of  Nuisance,  see  Nuisances, 

120. 
Action    to    Determine    Title    to    Office,    see 

Officers,   165. 
Right  to  Institute  Quo  Warranto   Proceed- 
ings, see  Quo  Warranto,  15,  26,  27. 
To    Vacate    Street    Railway    Franchise,    see 

Street  Railways,  40,  41. 
Retrospective   Statute   as   to,   see   Statutes,. 
543. 

2.  The  discretion  of  the  attorney  general 
in  determining  what  the  public  interests 
require  as  to  bringing  an  action  against  a 
domestic  business  corporation  or  its  officer* 
is  absolute  under  N.  Y.  Code  Civ.  Proc.  § 
1808,  and  cannot  be  made  the  subject  of  in- 
quiry by  the  courts.  People  v.  Ballard.  1.34 
N.  Y.  269.  .32  N.  E.  54,  17:  737 

3.  A  proceeding  in  equity  to  enjoin  an  in- 
trusion thereon,  and  to  compel  the  removal 
of  buildings  erected  on  land  reserved  for 
public  landing  places  by  private  individuals, 
may  be  maintained  by  the  attorney  general. 
Attorney  General  ex  rel.  Adams  v.TaiT.  148 
Mass.    .309.    19   N.    E.    358,  2:87 

4.  The  attorney  general  can  properly  in- 
stitute proceedings,  under  Mass.  Stat.  18.')2, 
cha]).  389.  to  require  a  railroad  company  to 
issue  mileage  tickets  and  receive  those  of 
other  companies,  since  it  is  not  a  proceeding 
in  equity,  but  rather  a  petition  for  a  writ 
of  mandamus  in  a  matter  concerning  the 
public.  Attorney  General  v.  Old  Colony  R. 
Co.   160  Mass.  62.  ,35  N.  E.  252.         22-^112 

5.  The  want  of  interest  or  title  to  relief 
in  a  private  person  on  whose  complaint  the 
attorney  general  has  based  an  information 
in  a  suit  on  behalf  of  the  state  does  not  de- 
feat the  right  of  action,  as  it  is  not  essen- 
tial to  the  jurisdiction  of  the  court  that 
there  should  be  any  private  relator  beyond 
the  attorney  general.  State  ex  rel.  Adams 
County  V.  Cunningham,  81  Wis.  440,  51  N. 
W.    724,  15:561 


ATTORNEYS. 


I.  Right  to  Practise. 

a.  Admission. 

b.  Disbarment, 
e.  License. 


180 


ATTORNEYS,  I.  a. 


II.  Relation  to  Client. 

a.  In  General;  Liability. 

b.  Authority. 

c.  Compensation;  Lien. 

1.  In  General;  Amount  of. 

2.  Lien   for;    Rights  in  Fund  or 

Property. 

d.  Summary  Proceedings, 
m.  Remedies  Against;  Motions. 
rV.  Editorial  Notes. 

Absence  of,  as  Ground  for  Reversal,  see 
Appeal  and  Error,  1117. 

Absence  of,  as  Ground  for  Continuance,  see 
Continuance  and  Adjournment,  5,  6. 

Argument  of.  see  Appeal  and  Error,  VII.  m, 
5;  New  Trial,  2;  Trial,  I.  d. 

Appearance  by,  see  Appearance. 

Contempt  by,  see  Contempt,  25,  28. 

Validity  of  Contract  with.  Contracts,  450, 
451. 

What  Constitutes  Fulfilment  of  Contract  to 
Employ  Permanently,  see  Contracts, 
697. 

Assisting  in  Prosecution,  see  District  and 
Prosecuting  Attorneys,  3,  4. 

Estoppel  by  Letter  of,  see  Estoppel,  132. 

Opinion  Evidence  by,  see  Evidence,  1331, 
1361,  1369. 

Confidential  Communications  to,  see  Evi- 
dence, 1493-1507,  1514,  and  also  infra, 
IV.  §  9. 

Administrator  as  Assistant  Attorney,  see 
Executors  and  Administrators,  37. 

Exemption  of  Library  of,  see  Exemptions. 
46. 

Larceny  by,  see  Larceny,  6,  7. 

Of  Legislative  (Committee,  see  Legislature, 
13. 

Application  by,  for  Mandamus,  see  Man- 
damus, 162. 

Notire  to  Member  of  Firm  of,  see  Notice, 
52-54. 

Accounting  between  Partners,  see  Partner- 
ship, 115. 

Receipt  of  Money  by,  as  Trustee,  see  Prin- 
cipal and  Surety,  13. 

Subrogation  of,  see  Subrogation,  10. 

Reference  of  Title  to,  see  Vendor  and  Pur- 
chaser, 51,  52. 

Privilege  from  Arrest,  see  Writ  and  Process, 
61,  62. 

Exemption  of,  from  Service  of  Process,  see 
Writ  and  Process,  68,  69. 

As  to  Attorney  General,  see  Attorney  Gen- 
eral. 


I.  Right  to  Practise. 

a.  Admission. 

Special  Legislation  as  to,  see  Statutes,  298. 
For  Editorial  Notes,  see  infra,  IV,  §  1. 

1.  The  details  of  the  common  law  as  to 
the  appointment  of  attorneys  at  law  are 
not  in  force  in  New  Hamnshsire,  being  in- 
applicable to  the  situation  and  circumstan- 
ces of  the  inhabitants  of  that  state.  Re 
Rickcr.  60  N.  R.  207,  29  Atl.  559,       24:  740 

la.  The    power    to    prescribe    reasonable 


rules  for  the  admission  of  persons  to  prac- 
tise law  is  one  of  the  inherent  privileges 
of  the  courts,  and  necessarily  extends  to 
control  over  the  membership  of  the  bar. 
Re  Leach,  134  Ind.  665,  34  N.  E.  641,  21:  701 

2.  A  statute  overriding  the  rules  of  court 
respecting  admission  of  attorneys,  by  requir- 
ing the  admission  of  any  person  who  began 
to  study  law  before  a  specified  date,  provid- 
ed he  has  obtained  a  diploma  from  a  law 
school  in  the  state  after  a  specified  period 
of  attendance,  or  passed  a  satisfactory  ex- 
amination before  an  examining  board,  af- 
ter a  prescribed  course  of  study, — is  an  un- 
constitutional assumption  by  the  legislature 
of  power  properlv  belonging  to  the  courts. 
Re  Day,  181  111.  73,  54  N.  E.  646,      50:  519 

3.  A  statute  providing  for  the  admis- 
sion of  attorneys  from  other  states  with- 
out examination  does  hot  affect  a  provision 
of  a  prior  statute  that  attorneys  must  be 
citizens  of  the  United  States.  Re  Yara- 
ashita,  30  Wash.  2.34,  70  Pac.  482,       59:  671 

4.  Attorneys  at  law  are  not  civil  officers 
within  Colo.  Const,  art.  7,  §  6,  requiring  the 
incumbent  of  a  civil  office  to  be  a  qualified 
elector.  Re  Thomas,  16  Colo.  441,  27  Pac. 
707,  13:  538 

5.  An  attorney  at  law  is  not  an  officer  of 
the  government,  such  that  the  right  of  ad- 
mission to  the  bar  will  depend  on  eligibility 
to  public  office.  Re  Ricker,  66  N.  H.  207, 
29  Atl.  559,  24:  740 
Right  of  women  to. 

For  Editorial  Notes,  see  infra,  IV.  §  1. 

6.  The  right  to  practise  law  is  not  a  nat- 
ural right  inherently  possessed  by  a  woman, 
independent  of  legislative  authorization. 
Re  Maddox,  93  Md.  727,  50  Atl.  487,    55:  298 

7.  Women  are  not  excluded  from  admis- 
sion as  attorneys  at  law  by  the  common-law 
rule  which  denies  them  the  right  to  vote  or 
hold  I'ublic  office.  Re  Ricker,  66  N.  H.  207. 
29   Atl.   559,  24:  740 

8.  Women  will  be  admitted  to  the  bar  on 
equal  terms  with  men,  in  the  absence  of  a 
statutory  or  constitutional  provision  to  the 
contrary.  Re  Thomas,  16  Colo.  441,  27  Pac. 
707,  13:  538 

9.  A  woman  is  not  excluded  from  the 
right  to  practise  law  by  the  provision  of 
Ind.  Const,  art.  7,  §  21,  that  "every  person  of 
good  moral  character,  being  a  voter,  shall  be 
entitled  to  admission  to  practise  law,"  and 
the  corresponding  provision  of  Ind.  Rev. 
Stat.  1881.  §  962.  Re  Leach,  134  Ind.  665, 
34  N.   E.  641.  21:  701 

10.  A  provision  for  admitting  to  the  bar 
lawyers  from  other  states  will  not  apply  in 
favor  of  women,  when  found  in  a  statute 
providinsr  for  admission  to  the  bar  of  "male 
citizens."  Re  Maddox,  93  Md.  727,  50  Atl. 
487,  55:  298 

11.  A  code  provision  that  the  masculine  in- 
cludes all  genders,  except  where  such  con- 
struction would  be  absurd  or  unreasonable, 
will  not  entitle  a  woman  to  admission  to  the 
bar,  under  a  provision  that  "any  male  cit- 
izen" having  certain  q\ialifications  shall  be 
so  admitted,  or  an  amendment  changing  the 
method  oi"  admitting  applicants,  which  deals 
alone  with  the  masculine  gender.  Id. 


ATTORNEYS,  I.  b. 


181 


12.  The  use  of  the  masculine  pronoun  ex- 
clusively in  the  statutes  relating  to  appli- 
cants for  admission  to  the  bar  and  to  li- 
censed attorneys  is  not  sufficient  to  show  a 
legislative  intent  to  exclude  women  from  the 
bar.     Re  Thomas,  16  Colo.  441,  27  Pac.  707, 

13:  538 
12a.  In  New  Hampshsire  the  legal  disa- 
bilities of  married  women  have  been  so  far 
removed  that  marriage  does  not  disqualify 
a  woman  for  admission  to  the  bar.  Re 
Ricker,  66  N.  H.  207,  29  Atl.  559,  24:  740 
In  court  of  Alabama  claims. 

13.  That  a  person  has  been  admitted  as 
an  attorney  at  law  in  the  Supreme  Court  of 
the  United  States,  in  the  courts  of  Massa- 
chusetts, and  in  the  United  States  court  of 
claims,  does  not  confer  upon  him  the  right 
to  practise  before  the  Court  of  Commission- 
ers of  Alabama  Claims;  and  an  order  dis- 
barring him  from  practising  beCpre  the  lat- 
ter court  will  not  remove  him  from  the  bar 
of  any  of  the  other  courts.  Manning  v. 
French,  149  Mass.  391,  21  N.  E.  945,     4:  339 

14.  The  Court  of  Commissioners  of  Ala- 
bama Claims  had  authority  to  make  rules 
for  the  admission  of  persons  to  prosecute 
claims  before  it  as  attorneys  for  claimants, 
under  the  grant,  in  the  act  of  June  23.  1874, 
§  3,  of  power  to  make  rules  for  regulating 
the  forms  and  mode  of  procedure  before  it, 
and  for  carrying  into  full  and  complete  ef- 
fect the  provisions  of  the  act  creating  the 
court;  and  this  authority  included  power  to 
determine  whether  or  not  an  attorney  al- 
ready admitted  was  a  fit  person  to  remain 
an  attorney,  and  to  remove  him  in  case 
he  was  not.  Id. 

b.  Disbarment. 

Compensation  of  Attorney  Conducting  Pro- 
ceedings, see  Counties,  43. 

Costs  in  Proceedings  for,  see  Costs  and 
Fees,  7. 

Disqualification  of  Judge  to  Hear  Proceed- 
ing, see  Judges,  41. 

Individual  Liability  of  Judge  for,  see  Judges, 
63,   64. 

See  also   supra,   13,   14. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

Grounds  for. 

Conviction  of  Felony,   Effect   of   Appeal   in 
Supersedeas,  see  Appeal  and  Error,  116. 
Repeal  of  Statute  as  to,  see  Statutes,  568. 
For  Editorial  Notes,  see  infra,  IV.   §  2. 

15.  A  bad  or  fraudulent  motive  must  be 
shown  to  justify  the  disbarment  of  an  attor- 
ney, although  the  acts  charged  against  him 
are  proved  to  have  been  committed.  State 
ex  rel.  Fowler  v.  Finlev,  30  Fla.  325.  11  So. 
674,  ^  18:  401 

16.  The  interlineation  into  a  decree,  after 
it  has  received  the  judicial  signature,  of  im- 
material words  patently  omitted  therefrom 
through  clerical  oversight,  is  not  ground  for 
disbarring  an  attorney,  where  he  acted  with- 
out any  bad  or  fraudulent  motive.  Id. 

17.  An  attorney's  anonymous  advertise- 
ment that  divorces  are  legally  obtained  by 
him  verj'  quietly  which  are  erood  everywhere 
is    sufficient    groimd    for    his    disbarment. 


Peopls  ex  rel.  Attorney  General  v.  MacCabe, 
18  Colo.  186,  32  Pac.  280,  19:231 

18.  The  absolute  disbarment  of  an  attor- 
ney is  justified  where,  upon  receiving  an  un- 
enforceable claim  against  his  own  client,  he 
caused  a  complaint  to  be  served  in  the  name 
of  another  attorney,  and  then  advised  his 
client  to  settle,  falsely  telling  him,  with  full 
knowledge  of  the  facts,  that  the  claim  was 
good  and  could  be  collected  out  of  his  prop- 
erty. Fairfield  County  Bar  ex  rel.  Fessen- 
den   v.   Taylor,   60   Conn.   11,  22  Atl.   441, 

13:  767 

19.  Champerty  renders  an  attorney  ame- 
nable to  the  summary  jurisdiction  of  the 
court,  notwithstanding  it  may  be  effectual 
as  a  defense  to  the  enforcement  of  a  con- 
tract.    Re  Evans,  22  Utah,  366,  62  Pac.  913, 

53:  952 

20.  An  attorney  who,  in  the  pursuit  of  his 
profession,  makes  an  agreement  which  is 
against  public  policy,  is  guilty  of  a  flagrant 
breach  of  professional  duty.  Id. 

21.  Receiving  property  of  the  government 
knowing  it  to  have  been  stolen,  with  intent 
to  convert  the  same  to  one's  own  use,  is 
an  offense  involving  moral  turpitude.  Re  ♦ 
Kirbv,  10  S.  D.  322,  73  N.  W.  72,  10  S.  D. 
414,  73  N.  W.  907,  39:  856 

22.  An  attorney  convicted  of  an  offense 
punishable  by  imprisonment  in  the  peniten- 
tiary is  guilty  of  felony  within  the  meaning 
of  a  statute  authorizing  disbarment.       Id. 

23.  A  license  to  practise  law  will  be  re- 
voked which  is  secured  by  a  fraudulent  con- 
cealment of  the  fact  that  the  plaintiff  has 
recently  been  convicted  of  embezzling  funds 
from  a  client  in  another  state, — especially  if, 
since  its  issuance,  the  plaintiff  has  been 
guilty  of  professional  misconduct  evincing 
such  lack  of  personal  integrity  and  profes- 
sional honor  as  to  establish  that  he  is  un- 
worthy to  be  allowed  to  hold  it.  People 
ex  rel.  Deneen  v.  Gilmore,  214  III.  569,  73 
N.  E.  737,  69:  701 

24.  An  attorney  will  not  be  struck  from 
the  roll  and  suspended  from  practice  of  his 
profession  because  of  a  wrongful  appropria- 
tion to  his  own  use  of  money  belonging  to 
his  client,  which  appears  as  a  single  offense 
in  a  long  professional  career,  where  he  had 
no  actual  intent  to  defraud,  and  not  only 
fully  expected  to  repay  the  money  when  de- 
manded, but  has  in  fact  made  full  restitu- 
tion, and  has  for  eight  years  thereafter 
maintatined  a  good  character  for  integrity 
in  private  and  public  stations.  Re  Lentz 
(N.  J.  Sup.)    65  N.  J.  L.   134,  46  Atl.   761, 

50:  415 
Practice  as  to. 
Admissibility  of  Record  of   Conviction   in, 

see  Evidence,  876. 
Judgment  against  Attorney  as  Evidence  for 

Disbarment,  see  Evidence,  868. 

25.  An  order  for  an  attorney  at  law  to 
show  cause  why  he  should  not  be  disbarred 
is  not  a  process  within  the  meaning  of  a 
constitutional  provision  requiring  process  to 
be  in  the  name  of  the  state.  Re  Kirbv,  10 
S.  D.  322,  73  N.  W.  92,  10  S.  D.  414,  73  N. 
W.   907,  39:  856 


18-.' 


ATTORNEYS,  I.  c;  II    a. 


26.  A  proceeding  for  disbarring  an  attor- 
ney is  a  civil  proceeding.  Id. 

27.  The  sum  mar}'  proceeding  of  disbar- 
ment is  civil,  not  criminal,  but  requires  more 
than  a  preponderance  of  the  evidence.  The 
guilt  of  the  attorney  must  be  clearly  estab- 
lished. Re  Evans. '22  Utah.  366,  62  Pac. 
<U3.  53:  952 

28.  A  judge  should  personally  hear  the 
evidence  in  a  proceeding  for  the  disbarment 
r)f  an  attorney,  and  should  not  delegate  the 
taking  of  the  evidence  to  a  commissioner 
or  anvone  else.  State  ex  rel.  Fowler  v.  Fin- 
ley.  30  Fla.  325,  11  So.  674,  18:  401 
Charges  against  attorney  for. 

20.  Charges  preferred  against  an  attorney 
for  the  purpose  of  disbarring  him  should  be 
clear,  specific,  and  circumstantial,  and  should 
be  stated  with  great  particularity.  State 
ex  rel.  Fowler  v.  Finlev,  30  FH,  325,  11  So. 
674.  '  18:401 

30.  Attorneys  preferring  charges  against 
another  attorney  of  unprofessional  conduct, 
for  the  purpose  of  having  him  disbarred, 
need  not  show  that  they  constitute  a  com- 
mittee appointed  by  the  bar  association  of 
the  county  for  that  purpose,  either  to  estab- 
lish their  right  to  institute  the  proceeding 
or  to  give  the  court  jurisdiction.  Fairfield 
Count V  Bar  ex  rel.  Fessenden  v.  Taylor,  60 
Conn  "ll.  22  Atl.  441.  13:  767 
Suspension  instead  of  disbarment. 

30a.  An  attorney's  answer  to  a  charge  of 
improper  advertising  for  divorce  business, 
that  he  did  it  in  entire  ignorance  that  it 
was  wrong,  and  that  he  ceased  on  coni- 
Tnenccment  of  the  proceeding,  and  that  he 
would  cheerfully  abide  by  and  obey  the  di- 
rections of  the  court,  was  considered  suflfi- 
cient  to  justify  his  suspension  for  six 
months,  instead  of  his  disbarment.  People 
ex  rel.  Attorney  General  v.  MacCabe.  18  Colo. 
ISO.  .'!2  Pac.  280.  19:  231 

What  will  preclude;  defenses. 

31.  'i'lic  resignation  of  an  attorney  with- 
out consent  or  privilege  of  the  court  is  in- 
ofiVctunl  to  preclude  his  disbarment,  when 
proceedings  therefor  were  pending  at  the 
time  of  his  resignation.  Re  Thompson.  32 
Or.   49!».  52   Pac.   .570.  40:  194 

32.  The  pardoning  of  a  lawyer  who  has 
been  convicted  of  embezzling  funds  from 
his  client  does  not  efface  the  moral  tur])i- 
fudc  and  want  of  professional  honesty  in- 
volvi'd  in  the  crime,  nor  obliterate  the 
stain  upon  his  moral  character.  People  ex 
rel.  Deneen  y.  Cilmore.  214  Til.  569.  73  X. 
K.   7.37.  69:  701 

.  ."{3.  A  \\Tit  of  error  and  siipersedeas  in  a 
proceeding  in  which  an  attorney  has  been 
convicted  of  felf)ny  are  jnatters  of  defense 
wliicli  he  must  prove  in  a  proceeding  to  dis- 
bar him  on  account  of  the  conviction.  Re 
Kirl.v.  10  S.  D.  .322.  73  X.  W.  92.  10  S.  D. 
414.  73  X.  W.  907,  39:  856 

c.  License. 

Impairiii!;  Obligation   of  Contract   as  to.  see 

Ccmstitutional   Law.   1124.   1125. 
See  also  supra.  23. 

34.  F.ach   nn-inl'.cr  of  a   firm   of  practising 


lawyers  must  pay  a  license  tax  and  fee 
prescribed  for  lawyers  practising  their  pro- 
fession, by  Fla.  act  June  10,  1891  (Fla.  Rev. 
State,  pp.  929  et  seq.)  and  must  take  out 
the  required  license,  before  he  can  lawfully 
practise  his  profession.  Blanchard  y.  State 
ex   rel.   Calhoun,    30   Fla.   223,    11    So.   785, 

18:409 

35.  Lawyers  are  not  exempt  from  occupa- 
tion tax  under  the  Texas  Constitution,  on 
the  ground  that  as  officers  of  the  court  they 
are  a  part  of  the  judicial  system,  which  such 
occupation  tax  would  tend  to  cripple  or  de- 
stroy. Ex  parte  Williams,  31  Tex.  Crim. 
Rep*  262,  20  S.  W.  580,  21:783 

36.  An  occupation  tax  will  not  be  h^ld 
unconstitutional  as  to  lawyers,  on  the 
ground  that  some  criminal  might  be  de- 
prived of  counsel  by  reason  of  the  law. — 
at  least  without  showing  that  some  criminal 
has  been  actually  deprived  thereby  of  legal 
counsel.  Id. 

37.  An  attorney  at  law  who  has  his  office 
and  place  of  business  within  the  city  limits, 
although  he  resides  outside,  is  subject  to  a 
license  tax  imposed  by  ordinance  in  general 
terms  "on  every  attorney  at  law."  Peters- 
burg  V.   Cocke,'  94   Va.   244,   26   S.   E,   576, 

36:432 


II.  Relation  to  Client, 
a.  In  General ;  Liability. 

Disqualification  to  Take  Acknowledgment, 
see  Acknowledgment,  4. 

Ratification  of  Unauthorized  Bringing  of 
Attachment  Suit,  Effect,  see  Attach- 
ment 45. 

Settlement  of  Suit  without  Attorney's 
Knowledge,  see  Compromise  and  Settle- 
ment,  15. 

Illegal  Contract  to  Defend  Prosecutions  for 
Sale  of  Liguor,  see  Contracts,  418. 

Rescission  of  Contract  for  Undue  Influence 
see  Contracts,  803,  804. 

Right  to  Purchase  at  Judicial  Sale,  see  Ju- 
dicial Sale.  16. 

Laches  Preventing  Vacation  of  Deed  to  At- 
torney,  see   Limitation  of  Actions,   12. 

Power  of  Bank  Attorney  to  Employ,  see 
Banks.  31. 

Governor's  Power  to  Employ,  see  Governor, 
2. 

Employment  by  Insane  Person,  see  Incom- 
petent Persons,  14. 

Employment  of,  by  Bishop,  see  Religious 
Societies,  66.  67. 

Power  of  Town  to  Employ,  see  Towns,  0, 
14. 

Ap|)ointiMent  of.  by  Foreign  Association,  see 
Building  and  Loan  Associations,  83. 

Eniplovnient  l)v,  for  County,  see  Counties, 
83. 

See  also  supra.  24. 

For  Editorial  Xotes.  see  infra,  TV,  §  4, 

38.  The  relation  of  attorney  and  client 
i.s  conlid.Mitial.  The  attorney  by  his  obliga- 
tion is  hound  to  discharge  his  duties  to  his 
client  with  (ho  strictest  fidelity,  and  he  13 
aincnil)!.*    to    the    summary    jurisdiction    of 


ATTORNEYS,  II.  b. 


188 


the  court  for  dereliction  of  duty.     Re  Evans, 
22  Utah,  366,  62  Pac.  913,  53:952 

39.  Tlie  appearance  as  attorney  in  pro- 
reedings  to  enforce  a  loggers'  lien  on  be- 
half of  the  claimant,  of  the  notary  public 
wlio  administered  llie  oath  in  support  of  the 
lien,  is  not  unlawful.  S'ullivan  v.  Ifall.  80 
Mich.  7,  48  X.  \V.  (MC,  13:556 

40.  An  att<uiiey  wlio  has  prepared  deeds 
of  trust,  and  been  consulted  as  to  the  pur- 
poses for  which  they  were  made,  cannot 
afterwards,  on  purchasing  the  land  included 
therein,  on  an  execution  sale,  maintain  a 
suit  to  set  aside  such  deeds  as  fraudulent ; 
and  where  another  person  simply  loans  to 
him  the  use  of  his  name  in  purchasing  the 
lands  and  bringing  the  suit,  the  case  will 
be  treated  as  if  the  attorney  were  the  ac- 
tual party.  Davis  v.  Kline,  96  Mo.  401, 
9  S.  W.  724,  2:  78 

41.  An  attorney  cannot  withhold  from  his 
client  information  acquired  by 'him  in  the 
exercise  of  such  attorneyship,  and  use  the 
«ame  to  extort  an  increased  compensation 
from  his  client,  or  coerce  him  into  a  contract 
he  would  not  enter  into  upon  full  informa- 
tion. Dorr  V.  Camden,  55  W.  Va.  226,  46 
S.  E.  1014.  65:  348 
Substitution. 

42.  The  substitution  of  an  attorney  for  a 
corporation,  in  a  proceeding  to  restrain  a  re- 
ceiver, cannot  be  prevented  by  the  prior  at- 
torney on  the  ground  of  disqualification  by 
reason  of  his  relations  to  the  receiver,  so 
long  as  the  parties  do  not  object.  People's 
Home  Sav.  Bank  v.  San  Francisco  Super.  Ct. 
104  Cal.  649,  38  Pac.  452,  29:  844 
Liability. 

Of  Attorney  for  Assignee  of  Creditors,  see 
Assignments  for  Creditors,  38. 

For  Receiving  Money,  see  Assumpsit,  25. 

As    Stockholder,    see   Corporations,   546. 

For  Mistake  in  Drawing  Will,  see  Parties, 
59. 

For  Editorial  Notes,  see  infra,  IV.  §  8. 

43.  A  lawyer  cannot  be  held  liable  for  a 
rnistake  in  reference  to  a  matter  in  which 
members  of  the  profession,  possessed  of  rea- 
sonable skill  and  knowledge,  may  differ  as 
to  the  law,  until  it  has  been  settled  in  the 
■courts:  nor  if  he  is  mistaken  ir.  a  point  of 
law  on  which  reasonable  doubt  may  be  en- 
tertained by  well-informed  lawyers.  Citi- 
Tcens  Tjoan,  F.  &  Sav.  Asso.  v.  Friedley,  123 
Ind.    143.    23    N.    E.    1075.  7:  669 

44.  Attorneys  are  not  liable  to  their 
flient  for  an  error  of  judgment  upon  a 
doubtful  question  of  law,  such  as  a  deter- 
mination to  proceed  in  a  pending  action  in 
a  state  court,  instead  of  abandoning  that 
and'piesenting  their  claim  against  a  receiver 
in  a  Inderal  court,  where  the  circumstances 
■were  such  that  attorneys  of  the  greatest 
eminenre  in  the  profession  might  well  have 
doubted  as  to  the  best  course  to  pursue  to 
attain  success  for  their  client.  Hill  v.  Mv- 
natt   (Tenn.  Ch.)   59  S.  W.  163,  52:  883 

45.  A  lawyer  upon  Avhose  advice  a  mort- 
gage was  taken  in  1883,  executed  by*a  hus- 
band and  wife  upon  lands  held  by  them  as 
tenants  by  entireties,  to  secure  the  hus- 
band's debt,  cannot  be  held  liable   for  the  loss 


I  occasioned  by  the  death  of  the  husband  and 
the  defeat  by  the  wife  of  a  foreclosure  suit 
upon  the  ground  that  she  signed  as  surety 
for  her  husband,  although  it  was  well  set- 
tled when  the  mortgage  was  executed  that 
the  wife's  signature  was  void,  since  it  was 
not  decided  until  1884  that  such  mortgage 
was  void  as  to  both  husband  and  wife.  Cit- 
izens Loan.  F.  &  Sav.  Asso.  v.  Friedley, 
123  Ind.   143.  23  N.  E.   1075,  7:  669 

46.  An  attorney  is  not  liable  to  a  son 
for  even  gross  negligence  in  so  drawing  the 
will  of  the  mother  as  not  to  carry  out  her 
desires  in  the  disposition  of  her  property, 
even  though  the  son  suffers  great  pecuniary 
loss  thereby,  there  having  been  no  privity  of 
contract  between  the  son  and  the  attorney. 
Bucklev  V.  Gray,  110  Cal.  339,  42  Pac.  900. 

31 :  862 
Settlement  with  client. 

47.  Independent  advice  is  not  necessary  to 
enable  a  competent  client  to  effect  a  binding 
settlement  with  his  attorney  concerning  serv- 
ices already  rendered,  where  the  client  is  in 
a  position  to  form  an  entirely  free  and  un- 
fettered judgment  independent  altogether  of 
anv  sort  of  control.  Kidd  v.  Williams,  132 
Ala.  140,  31  So.  458,  56:  879 

b.  Authority. 

Unauthorized  Appearance  on  Appeal,  see 
Appeal  and  Error.  138. 

Acceptance  of  Service  of  Citation  on  Appeal, 
see  Appeal  and  Error,  136. 

Power  to  Assign  Option  Contract,  .see  As- 
signment, 29. 

Of  Assignee  for  Creditors,  see  Assignments 
for  Creditors,  37. 

To  Purchase  on  Foreclosure,  Presumption  as 
to,  see  Evidence,  285. 

Admission  bv  Attorney  for  Infant,  see  In- 
fants. 102. 

Of  Citv  Attorney,  see  Municipal  Corpora- 
tions, 603. 

Imputing  Knowledge  of,  to  Client,  see  No- 
tice, 29.  33,  38. 

For   Editorial   Notes,   see   infra,  IV.   §   5. 

48.  An  attorney  who  appears  for  defend- 
ant in  an  action  for  divorce,  and  serves  an 
answer  therein,  cannot  withdraw  such  ap- 
pearance and  answer  in  avowed  hostility 
to  his  client  and  as  an  act  of  retaliation 
against  him  for  alleged  nonpayment  of  fees. 
Nickells  v.  Nickells,  5  N.  D.  125.  64  N.  W. 
73,  33:  515 

49.  Acts  of  record  by  counsel,  consenting 
to  the  allowance  of  alimony  in  a  gross  sum, 
are  binding  on  the  client.  Wood  v.  Wood, 
,59  Ark.  441.  27  S.  W.  641,  28:  1.57 
,  50.  An  attorney  of  record  has  power  to 
waive  objections  to  evidence,  and  enter  into 
stipulations  for  the  admission  of  facts  on 
the  trial.  Garrett  v.  Hanshue,  53  Ohio  St. 
482.  42  N.  E.  256,  .35:  321 

51.  A  stipulation  by  an  attorney  that  the 
action  shall  abide  the  event  of  another 
action  pending  binds  his  adult  clients,  un- 
less it  be  improvidently,  fraudulently,  or 
collusivelv  made.  Eidam  v.  Finnegan,  48 
Minn    53,'  50  N.  W.  933,  16:  507 


184 


ATTORNEYS,  IL  c.  I. 


52.  But  such  stipulation  does  not  bind  an 
infant  party  unless  approved  and  ratified  by 
the  court  upon  a  showing  that  it  is  for  the 
interest,  or,  at  least,  not  prejudicial  to  the 
interest,  of  the  infant.  It  must  appear  that 
the  matters  in  controversy  in  the  two 
actions,  so  far  as  affect  the  infant,  are  pre- 
cisely the  same,  and  that  he  is  represented 
in  the  two  actions  by  the  same  guardian 
ad  litem.  Eidam  v.  Finnegan,  48  Minn;  53, 
50  N.  W.  933,  16:  507 

53.  Although  money  made  on  execution 
can  by  the  Florida  statute  be  paid  to  an  at- 
torney of  record  of  the  execution  creditor, 
such  attorney  has  no  authority  as  such  to 
authorize  the  clerk  of  the  circuit  court  in 
his  official  capacity  to  accept  money  on  a 
judgment.  Hendry  v.  Benlisa,  37  Fla.  609, 
20  So.  800,  34:  283 
To  settle  or  make  final  disposition  of  suit. 

54.  That  an  agreement  by  an  attorney 
for  settlement  was  not  brought  to  the  at- 
tention of  the  court,  and  did  not  obtain  its 
sanction  before  it  was  entered  of  record, 
does  not  impair  its  effect.  Beliveau  V. 
Amoskeag   Co.   68   X.   H.   225,   40  Atl.   734, 

44:  167 

55.  An  attorney  employed  by  the  next 
friend  of  an  infant  to  prosecute  a  suit  on 
the  infant's  behalf  has  power  to  make  a 
settlement  of  the  suit  which  will  bind  the 
infant.  Id. 

56.  A  discharged  attorney  who  is  per- 
mitted to  remain  the  attorney  of  record 
without  notice  to  the  opposite  party  may 
enter  into  an  agreement  for  settlement  of 
the  .suit,  which  will  "bind  his  former  client. 

Id. 

.57.  A  final  disposition  of  a  cause  may  be 
made  by  agreement  of  the  attorney  of 
record,  as  to  whose  authority  no  limitation 
is  known  or  might  be  known  by  reasonable 
inquiry  by  the  opposite  party,  which  is 
entered  of  record,  made  an  order  of  court, 
and  executed  by  the  adversary  in  good  faith. 

Id. 
To  submit  case  to  arbitration. 

58.  An  attorney  has  no  implied  authority 
to  submit  a  case  in  which  he  is  employed  to 
arbitration  by  a  submission  made  in  pais, 
without  order  or  direction  of  the  court  or 
the  knowledge  of  his  client.  Daniels  v.  New 
Tendon.  58  Conn.  156.  19  Atl.  573,         7:  .563 

50.  A  material  change  in  a  submission  to 
arbitration,  made  by  the  parties  by  an  act 
in  pa'ft,  is  not  within  the  authority  of  an 
attorney,  unless  he  is  expressly  authorized 
to  make  it.  Id. 

60.  A  change  in  a  written  submission  to 
arbitration  by  which  the  award  is  to  be 
made  final,  instead  of  being  returned  to 
court  for  judgment  by  the  court,  is  a  ma- 
terial change  such  as  an  attorney  cannot 
make  unless  expressly  authorized.  Daniels 
▼.  New  I>ondon,  58  Conn.    156,   19  Atl.  573. 

7 :  563 

c.  Compensation;    Lien. 

1.  In  Ceneral;  Amount  of 

Matters  Intlndod   in   Item   of  Account,   see 
Accounts.  2. 


Stipulation  in  Contract  for  Attorney's  Fees 
to  Be  Added  to  Obligation,  see  At- 
torneys' Fees. 

Champertous  Agreements  between  Attorney 
and  Client,  see  Champerty,  II. 

Validitv  of  Contract  as  to,  see  also  Con- 
tracts, 413-418,  486. 

Implied  Agreement  to  Pay  for  Services,  see 
Contracts,  11-13. 

Preference  of,  see  Corporations,  806,  807. 

Of  Attorney  Conducting  Disbarment  Pro- 
ceedings, see  Counties,  43. 

Allowance  for  Attorneys  as  Element  of 
Damages  without  any  Stipulation  there- 
for, see  Damages,  III.  r. 

Opinion  Evidence  as  to  Value  of  Service,  see 
Evidence.  1331. 

For  Services  to  Decedent's  Estate,  see  Ex- 
ecutors and  Administrators,  134,  135. 

Exemption  of  Claim  for,  from  Garnishment, 
see  Exemptions,  36. 

Married  Woman's  Liability  on  Contract 
Emploving  Attorney,  see  Husband  and 
Wife,  "39. 

For  Services  to  Infant,  see  Infants,  67,  68. 

Father's  Duty  to  Pay,  see  Parent  and 
Child,  8. 

Right  of  one  Partner  to  Make  Collection 
without  Charging  for  Services,  see 
Partnership,  23. 

For  Services  in  Procuring  Pension,  see 
Pension,  2. 

See  also  supra,  41 ;  Mortgage,  228. 

For  Editorial  Notes,  see  infra,  IV.  §§  3,  7. 

61.  In  determining  the  value  of  the  pro- 
fessional services  of  an  attorney,  the  im- 
portance of  the  case  to  the  client  may  be 
considered.  Selover  v.  Bryant,  54  Minn.  434, 
56  N.  W.  58,  21:  418 

62.  One  thousand  dollars  is  adequate 
compensation  for  the  services  of  an  at- 
torney in  enforcing  the  liability  of  a 
sheriff's  bond  for  his  failure  to  pay  .$7,114.50 
as  directed  by  a  judgment,  where  the  judg- 
ment for  principal  and  penalty  is  $10,000, 
and  property  is  turned  over  to  his  client  in 
compromise  valued  at  $8,850.  Davis  v. 
Webber,  66  Ark.  190,  49  S.  W.  822,    45:  196 

63.  An  attorney  who  has  withdrawn  from 
a  case  in  which  the  client  has  other  counsel, 
because  of  misconduct  of  the  client  sufficient 
to  justify  him,  may  recover  for  services  pre- 
viously rendered.  Powers  v.  Manning,  154 
Mass. '370,  28  N.  E.  290.  13:  2.58 

64.  An  attorney  employed  by  a  building 
and  loan  association  to  procure  the  dis- 
charge of  all  the  receivers  who  have  been 
appointed  for  it,  but  who  is  also  employed 
and  paid  by  one  of  the  contesting  sets  of 
receivers  and  renders  services  for  them,*will 
be  precluded  by  public  policy  from  recover- 
ing from  the  association,  even  if  the  board 
of  directors  has  by  resolution  approved 
what  he  has  done,  with  full  knowledge  of 
his  inconsistent  employments.  Strong  v. 
Brennan,  183  111.  97.  55  N.  E.  675,  47:  792 
Contract  for  contingent  fee. 

As   Equitable  Assignment,  see  Assignment, 

3G. 
Priority  of  Attorney's    Equity    under,    see 
Assignment,  45. 


ATTORNEYS,  II.  c,  1. 


185 


Champertous  Agreements  for,  see  Champer- 
ty, 11-13. 

Consideration  for,  see  Contracts,  68. 

Admissibility  of  Evidence  as  to,  see  Evi- 
dence, 2130. 

Specific  .Enforcement  of  Contract  for,  see 
Specific  Performance,  56. 

See  also  infra,  82. 

65.  Ordinary  services  requiring  no  legal 
ability  are  not  a  sufficient  consideration  for 
a  contingent  fee  wholly  disproportionate 
thereto.  Dorr  v.  Camden,  55  W.  Va.  226, 
46  S.  E.  1014,  65:  348 

66.  An  attorney  whose  services  are  not  of 
such  character  as  to  furnish  a  consideration 
for  a  contract  for  a  contingent  fee  unfair- 
ly obtained  from  a  client  may  recover  for 
the  value  of  his  actual  services  rendered  his 
client,  upon  pleadings  and  proofs  justifying 
such  recovery.  ^  Id. 

67.  To  sustain  a  contract  for  »  contingent 
fee  it  must  be  show^n  that  no  unfair  ad- 
vantage was  taken  of  his  client  by  the  at- 
torney, but  that  the  same  was  entered  into 
by  the  client,  after  full  knowledge  of  the 
facts  and  circumstances,  for  legal  services 
of  skill,  judgment,  and  ability  of  a  char- 
acter to  justify  a  contract  for  such  con- 
tingent fee.  Id. 

68.  .\  contract  by  plaintiff  in  a  divorce 
proceeding  to  pay  to  her  attorney  one 
third  of  all  amounts  recovered  by  him  is 
illegal  and  void  as  against  public  policy,  and 
cannot  be  specifically  enforced  by  a  court  of 
equity  in  favor  of  an  assignee  thereof. 
Xewman  v.  Freitas,  129  Cal.  283,  61  Pac. 
907,  50:  548 

69.  A  contract  between  attorney  and 
client  during  the  pendency  of  a  litigation 
as  to  the  title  of  property,  to  give  a  part 
of  the  property  involved  therein  as  com- 
pensation for  the  attorney's  services  in  the 
litigation,  is  voidable  at  the  election  of  the 
client,  irrespective  of  the  fairness  or  un- 
fairness of  the  contract,  provided  such  elec- 
tion is  exercised  within  a  reasonable  time. 
Elmore  v.  .Tohnson,  143  111.  513.  32  N.  E. 
413.  21:366 
Rights  on  death  of  one  member  of  firm. 

70.  One  who  has  made  a  contract  with  a 
partnership  for  legal  services,  to  be  com- 
pensated partly  by  a  contingent  fee,  can- 
not, after  the  death  of  one  partner,  for  the 
purpose  of  depriving  his  estate  of  any  inter- 
est in  the  fee  not  fully  earned,  make  a  new 
contract  with  the  surviving  partner  for  the 
same  services.  Clifton  v.  Clark,  83  Miss. 
446.  36  So.  251,  66:  821 

71.  Permitting  the  surviving  partner  of 
a  firm  which  has  contracted  to  render  legal 
services  to  remain  in  control  of  the  business 
and  conduct  it  to  its  close  is  a  recognition 
and  continuance  of  the  original  contract, 
rendering  the  client  liable  for  the  compen- 
sation originally  agreed  upon  notwithstand- 
ing the  death  of  one  of  the  firm.  Id. 

72.  The  doctrine  of  quantum  meruit  is 
not  applicable  to  limit  the  amount  of  re- 
covery, in  favor  of  the  estate  of  a  deceased 
member  of  a  firm  of  attorneys,  to  the  value 
of  services  performed  during  the  decedent's 
lifetime,  where  the  compensation  was  to  be 


a  contingent  fee,  and  the  surviving  partner 
conducts  the  litigation  to  a  successful 
termination,  and  thereby  earns  the  fee.     Id. 

2.  Lien   for;   Rights   in  Fund  or  Property. 

Right  to  Protect  Lien  by  Preventing  Dis- 
missal, see  Dismissal  or  Discontinu- 
ance, 6. 

Embezzlement  of  Funds  on  which  Lien 
Claimed,    see    Embezzlement,   5,   6. 

Sufficiency  of  Finding  to  Support  Lien,  see 
Judgment,  49. 

Priority  of  Mechanic's  Lien,  see  Mechanics' 
Liens.  17. 

Right  of  Set-Off  in  Case  of,  see  Set-Off  and 
Counterclaim,  68. 

73.  An  attorney's  lien  is  either  a  retain- 
ing or  a  charging  lien.  The  former  is  based 
upon  the  possession  of  money  or  papers, 
and  expires  when  the  possession  ends.  The 
latter  is  the  right  to  make  the  claim  for 
compensation  a  charge  upon  the  judgment, 
and  is  not  perfected  until  notice  is  given 
the  defendant.  Manning  v.  Leighton.  65 
Vt.  84,  26  Atl.  258,  24 :  684 

74.  The  value  of  services  rendered  in  one 
suit  cannot  be  included  in  a  judgment  estab- 
lishing the  lien  of  an  attorney  for  his  fees 
on  property  received  by  his  client  in 
compromise  of  a  judgment  in  a  different 
suit.  Davis  v.  Webber,  66  Ark.  190.  49  S. 
W.  822,  45:  196 

75.  A  lien  for  attorneys'  fees  allowed  by 
a  judgment  foreclosing  a  real-estate  mort- 
gage attaches  to  the  land,  and  may  be  en- 
forced against  it  after  it  has  been  bid  in 
by  the  mortgagee  or  his  assignee  with 
notice  for  an  amount  less  than  that  due  on 
the  mortgage,  which  has  been  credited  on 
the  judgment, — especially  when  the  sale  is 
brought  about,  without  payment  of  the  fees, 
through  the  connivance  or  fraud  of  the 
purchaser  or  those  acting  in  his  behalf. 
Loofbourow  v.  Hicks,  24  Utah,  49,  66  Pac. 
602,  55:  874 

76.  Plaintiff's  attorney  has  no  lien  on  the 
land  in  controversy,  or  any  claim  against 
defendants  personally  for  his  fees,  under  Ky. 
Gen.  Stat.  chap.  5,  §  15,  giving  an  attorney 
a  lien  on  a  demand  arising  out  of  contract 
placed  in  his  hands  for  collection,  and  on  a 
judgment  whether  in  contract  or  for  a  tort, 
and  on  property  recovered,  upon  the  dis- 
missal in  good  faith  of  an  action  to  enforce 
a  contract  for  land  without  any  recovery  or 
consideration  except  that  each  party  shall 
pay  his  own  costs,  although  it  is  against 
the  consent  of  such  attornev.  Rowe  v. 
Fogle,  88  Ky.   105,  10  S.  W.  426,         2:  708 

77.  An  attorney's  lien  for  services  ren- 
dered his  client  cannot  be  successfully  as- 
serted against  money  appropriated  to  such 
client  by  an  act  of  the  legislature,  while 
such  money  is  in  the  custody  or  under  the 
control  of  the  state  treasurer.  State  ex 
rel.  Sayre  v.  Moore,  40  Neb.  854,  59  N.  W. 
755,  25:  774 

78.  A  lien  for  counsel  fees  attaches  to  the 
property  recovered  in  a  suit  by  minority 
stockholders  to  recover  corporate  property 


186 


ATTORNEYS,  II.  d.— IV. 


wrongfully  conveyed  by  the  corporate  of- 
ficers at  the  instance  of  the  majority  stock- 
holders. Grant  v.  Lookout  Mountain  Co.  93 
Tenn.  691,  28  S.  W.  90,  27:  98 

79.  A  stipulated  compensation  of  at- 
torneys, consisting  of  30  per  cent  of  the 
amount  recovered  in  an  action  for  un- 
liquidated damages,  on  which  insurance 
companies  have  some  claims  for  subro- 
gation, is  proper!}'  paid  out  of  the  fund  re- 
covered, before  paying  over  any  of  the 
money  to  the  insurers,  where  they  ]iave  paid 
over  the  insurance  money  with  full  knowl- 
edge of  this  agreement,  and  have  permitted 
the  attorneys  to  proceed  in  the  litigation 
without  objection.  Svea  Assur.  Co.  v. 
Packham,  92  Md.  464,  48  Atl.  359,        52:  95 

80.  The  provision  of  the  act  of  Congress 
of  June  5,  1882,  re-establishing  the  court  of 
Alabama  claims,  and  authorizing  the  ren- 
dition of  judgments  in  the  mode  and  subject 
to  the  conditions,  limitations,  and  provisions 
of  the  act  of  1874  originally  establishing 
such  court,  revive  the  provision  that  the 
court  shall  on  motion  allow  the  compen- 
sation of  attorneys  and  enter  it  as  part  of 
its  judgment,  and  that  all  other  liens  upon 
the  judgment  shall  be  of  no  effect.  Man- 
ning V.  Leighton,  65  Vt.  84,  26  Atl.  258. 

24:  684 

81.  An  attorney  who  l\as  rendered 
services  in  the  recovery  of  a  claim  from  the 
United  States,  which  has  finally  been  re- 
covered by  the  administrator  of  the  bene- 
ficiary througli  another  attorney,  cannot  im- 
pose a  lien  upon  the  funds,  where  such  ad- 
ministrator had  no  further  notice  of  the 
lien  than  the  mere  knowledge  that  such  at- 
torney had  rendered  services  in  connection 
with  the  claims;  nor  can  he  hold  him  per- 
sonally liable  although  he  has  paid  over  the 
fnnd  to  the  persons  entitled.  Id. 

82.  The  right  of  an  attorney  to  assert  a 
lien  upon  a  recovery  on  a  claim  against  the 
United  States,  under  an  agreement  for  a 
conditional  fee.  is  inconsistent  with  U.  S. 
Rev.  Stat.  §  3477,  U.  S.  Comp.  Stat.  1901, 
p.  2320.  providing  that  all  transfers  and 
assignments  of  any  claim  upon  the  United 
States,  or  of  any  interest  therein,  shall  be 
absohjtely  null  and  void  unless  made  with 
certain  formalities  and  after  the  allowance 
of  the  claim  and  the  issuing  of  a  warrant 
tlierefor.  Id. 

S3.  Claims  under  the  act  of  Congress  of 
•Tune  5,  1882  (22  Stat,  at  L.  98.  chap.  195), 
for  damage  on  the  high  seas  by  Confederate 
cruisers  and  for  premiums  charged  for  war 
risks  after  the  sailing  of  any  Confederate 
rniiser.  although  to  be  satisfied  out  of  a 
porticular  fund  without  further  responsi- 
hility  on  the  part  of  the  United  States,  are, 
since  tlie  monev  had  been  covered  into  the 
treasury  and  the  right  to  it  was  to  be  es- 
tablislied  by  legal  proceedings,  within  the 
proceedings,  within  the  provisions  of  U.  S. 
Rev.  Stat.  §  .']477.  V.  S.  Comp.  Stat.  1901, 
p.  2320,  making  void  all  transfers  and  as- 
signments of  any  claim  upon  the  United 
States  before  the  allowance  of  the  claim 
and  the  issuing  of  the  warrant,  so  as  to 
prevent  a  lien  in  favor  of  an  attorney  un- 


der an  agreement  for  a  conditional  fee  for 
their  prosecution.  Id. 

d.  Summary  Proceedings. 

Unauthorized  Appearance  as  Ground  for 
Setting  aside  Judicial  Sale,  see  Judicial 
Sale,  37. 

See  also  supra,  38;  infra.  III. 

84.  The  power  of  the  court  of  chancery  to 
compel  a  solicitor  to  pay  over  to  his  client 
funds  obtained  in  the  course  of  proceedings 
to  enforce  a  decree  of  that  court  is  not  af- 
fected by  the  fact  that  he  may  have  re- 
ceived his  commission  from  another  court, 
instead  of  the  chancery  court,  or  that  he 
mav  have  had  no  commission  at  all.  Lynde 
v.  Lynde  (N.  J.  Err.  &  App.)  64  N.  J.  Eq. 
736, '52  Atl.  694,  58:  471 

85.  A  solicitor  in  chancery  residing  in 
New  Jersey,  who  is  employed  to  procure  the 
reopening  of  a  divorce  decree  in  that  state 
and  an  order  for  the  payment  of  alimony, 
and  who,  after  obtaining  the  order,  brings 
actions  in  the  state  of  Xew  York  as  an  at- 
torney at  law  in  that  state  to  collect  the 
alimony,  and  obtains  large  sums  of  money 
in  compromise  of  the  litigation,  is  subject 
to  a  summary  proceeding  in  the  New  Jersey 
chancery  court  to  compel  him  to  do  justice 
to  his  client,  where  he  has  refused  to  pay 
over  a  large  part  of  the  funds,  claiming  the 
right  to  retain  them  as  compensation,  and 
contends  that,  as  they  were  obtained  by 
him  in  his  capacity  as  an  attorney  at  law 
in  Xew  York,  he  is  not  amenable  to  the 
summary  jurisdiction  of  the  New  Jersey 
chancery  court.  Id. 


III.  Remedies  Against;  Motions. 

See  also  supra,  38,  II.  d. 

86.  Attorneys  who  have  abused  the  proc- 
ess of  the  court  by  causing  a  writ  of  at- 
tachment known  to  them  to  be  utterly  void 
to  issue  for  the  purpose  of  obtaining 
custody  of  the  books  and  private  papers  of 
the  defendant,  for  the  purpose  of  founding 
subsequent  proceedings  upon  them  and  for 
inquisitorial  purposes,  will  be  compelled  to 
surrender  such  boots  and  any  copies  con- 
taining evidence  taken  from  such  books  and 
papers,  and  to  make  proof  that  they  have 
surrendered  the  whole  so  that  it  may  not 
be  used  by  them  or  anyone  else.  Rosenthal 
V.  Muskegon  Circuit  Judge,  98  Mich.  208,  57 
N.  W.  112,  22:  693 


rV,  Editorial  Notes. 

a.  Relation  to  court  and  public. 

§  I.  Generally. 

As  public  officers.     17:  244. 

Constitutional    privilege    to    practise    law. 

14:  581. 
Right  of  women  to  practise  law.    21:  701. 
License  tax  on.     18:  409. 


ATTORNEYS,  IV.  (Ed.  Notes.);  —ATTORNEYS'  FEES. 


187 


Improper     influence     or     interference     with 

grand    jury   by   attorneys. 

28:  370! 
■§  2.  Disbarment. 
-(Generally.      13:  767.'* 
Necessity  of  bad  or  fraudulent    motive    to 

justify.     18:401. 
§  3.  Champerty;  maintenance. 
AVhen  contract  between  attorney  and  client 

not         chanipertous.         1: 

516.* 
Prohibition  of  purchase  of  choses  in  action 

by.     9:  91.* 
Assignment  of  claim  to.     9:  92.* 
Right  to  purchase  adverse  title.     9:  92.* 

b.  Relation  to  Client. 

§  4.  Generally. 

Transactions  between  attorney  *nd  client  to 
be  closely  scriftinized.  9: 
90.* 

Burden  on  attorney  to  show  good  faith  of 
transaction  with  client. 
9:  90.* 

Eight  of  insured  to  have  attorney  present 
at  examination  as  to  loss. 
52:426. 

§  5.  Authority. 

To  enter  appearance  iji  case  in  behalf  of  in- 
fant or  incompetent.  32: 
681. 

Hfliect  of  unauthorized  appearance  of  at- 
torney in  an  action.  9: 
844;*'21:  848. 

Power  of  defendant's  attorney  to  withdraw 
answer  or  appearance  and 
permit     a     default    judg- 
ment.    33:  515. 
In  general.     33:  515. 
Withdrawal    of    attorney's    appearance. 
33:  517. 
In  general.     33:  517. 
Effect    on    defendant's    appearance. 

33:  518. 
Eflect  on  plea  or  answer.     33:  518. 
Withdrawal  of  answer.     33:  519. 
Withdrawal  of  answer  and  appearance. 
33:  520. 

Notice  to  attorney  as  notice  to  client.  2: 
734.* 

Kight  to  take  acknowledgment.     33:  337. 

§    6.    Client's    responsibility   for   attorney's 
neglect. 

Negligence  of,  as  a  bar  to  injunction  against 
judgment.      31:36. 

§  7.  Employment  of;    contract  with;    com- 
pensation of. 

See  also  supra,  IV.  §  3. 

Right  of  governor  to  employ  for  state. 
55:493. 

Power  of  public  officers  to  bind  successors 
by  employment  of  attor- 
neA'  for  term  of  years. 
16':  257. 

Power  of  president  and  vice  president  of 
corporation  to  employ  at- 
torneys.     14:. 360. 

Effect  of  death   on   contract    with.     23:  710. 

Recovery  for  services  to  wife  in  divorce 
suit.     24:  629. 


Damages  for  breach  of  contracts  with.     53: 

57,  79. 
Claims  against  state  for  fees  of.     42:  51. 
Statement  of  account  by.     27:  821. 
Expert  testimony- of  value  of  legal  services. 

"  11:  787.* 
§  8.  Duty  and  liability  to  client. 
Liability  of  attorney  to  client  for  mistake. 
52:  883. 
Generally.    52:  883. 
In  pleading.     52:  885. 
In  practice.     52:  886. 
In  wrong  proceeding.     .52:  888. 
In  examination  of  titles.     52:  889. 
In  payment  and  distribution  of  money. 

52:  890. 
In  drafting  and  preparing  instruments 

and  decrees.     52:  891. 
Mistakes  or  omissions    in    advice.     52: 
892. 
Liability  of,  for  interest  on  money  collected 

for  client.     18:  457. 
§  9.  Privileged  communications  between  at- 
torney and  client. 
Generally.     6:  481.* 
Waiver  of  privilege.     6:  481.* 
Testimony  of  third  person.     6:  482.* 
Privilege     of     communications    to    attorney 
during  preparation  of  will. 
17:  188. 


ATTORNEYS'  FEES. 

[This  title  includes  only  the  matter  of 
attorneys'  fees  added  to  a  recovery  upon  an 
obligation  by  virtue  of  a  stipulation  in 
the  instrument  creating  the  liability.  For 
the  right  of  an  attorney  to  recover  fees 
from  his  own  client  see  Attorneys,  II.  c. 
For  an  allowance  for  attorneys  as  an  ele- 
ment of  costs  or  damages  without  any 
stipulation  therefor,  see  Costs  and  Fees,  44- 
54;    Damages,  III.  r.] 

Interlineation  of  Agreement  to  Pay,  see 
Alteration  of  Instruments,  8. 

Right  to  Appeal  from  Allowance  of,  see  Ap- 
peal and  Error,  33. 

Effect  of  Provision  for,  on  Negotiability  of 
Note,  see  Bills  and  Notes,  83-89. 

Guaranty  of,  in  Note,  see  Bills  and  Notes, 
108. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  II.  a,  6. 

Due  Process  of  Law  as  to,  see  Constitution- 
al Law,  623,  624. 

Allowance  of,  to  Successful  Lien  Claimants, 
see  Constitutional  Law,  1106. 

Against  Insurance  Company,  see  Constitu- 
tional Law,  1107. 

In  Divorce  Suit,  see  Divorce  and  Separa- 
tion, V.  b. 

To  Counsel  for  State  on  Recovery  Back  of 
Escheated  Property,  see  Escheat,  3,  4. 

Subrogation  of  Insurer  to  Claim  for,  see 
Insurance,  1265. 

On  Foreclosure,  see  Building  and  Loan  As- 
sociations, 47 ;  Costs  and  Fees,  44 ; 
Mortgage,  204. 

Repeal  of  Statute  as  to,  see  Statutes.  567. 


188 


ATTORNMENT:  AUCTION. 


Special  Legislation  as  to,  see  Statutes,  392, 

393. 
Retrospective  Statute  as  to,    see    Statutes, 

550. 
As  Usury,  see  Usury,  17.  ' 

1.  A  provision  allowing  attorneys'  fees  on 
recovery  by  the  plaintitf  does  not  impose  a 
"penalty  for  exercising  the  right  of  de- 
fensp."  Burlington,  C.  R.  &  N.  R.  Co.  v. 
Dey,  82  Iowa,  312,  48  N.  W.  98,  12:  436 

2.  A  stipulation  to  pay  all  costs  of  col- 
lecting not  less  than  10  per  cent  "refers  to 
attorneys'  fees,"  as  the  parties  are  liable 
for  court  costs  without  any  stipulation. 
Montgomery  v.  Crosthwait,  90  Ala.  553, 
8  So.  498,  ^   12:  140 

3.  Attorneys'  fees  provided  for  in  a  bill 
of  exchange  are  earned  when  an  action  on 
the  bill  is  prosecuted  to  judgment,  and,  if 
lawfiil  to  be  charged,  may  properly  be  in- 
cluded therein,  without  the  necessity  of  a 
separate  action.  Bank  of  Commerce  v. 
Fuqua,  11  Mont.  285,  28  Pac.  291,         14:  588 

4.  A  stipulation  in  a  negotiable  bill,  for 
attorney's  fees,  becomes  operative  only 
after  the  bill  has  bten  dishonored, — espe- 
cially where  it  is  made  among  other  stipu- 
lations which  become  operative  only  in  that 
event.  Farmers  Xat.  Bank  v.  Sutton  Mfg. 
Co.  6  U.  S.  App.  312,  3  C.  C.  A.  1,  52  Fed. 
191,  17:  595 

5.  The  indorsement  of  a  negotiable  note 
passes  with  it  to  the  assignee  the  right  to 
enforce  a  stipulation  in  the  note  for  an  at- 
torney's fee,  to  be  recovered  either  as  part 
of  the  note  or  bv  separate  action.  Dorsev 
V.  Wolff,  142  111. '589,  32  N.  E.  495,     18:  428 

6.  A  separate  suit  for  an  attorney's  fee 
may  be  authorized  by  express  stipulation  in 
a  promissory  note.  Id. 

7.  An  affidavit  for  an  attorney's  fee  filed 
l)v  an  attorney  employed  pending  the  suit, 
after  the  one  who  brought  the  action  has 
withdrawn,  may  be  regarded  as  an  amend- 
ment of  the  aflidavit  made  by  the  latter  at 
the  commencement  of  the  action.  Fletcher 
v.  Kellv,  8S  Iowa,  475,  55  X.  W.  474, 

21 :  347 

8.  The  regulation  of  attorney's  fees  by 
Wash.  Laws  1895,  p.  81.  limiting  stip- 
ulations of  the  parties  in  that  respect,  is  a 
valid  measure  of  public  policv.  Dennis  v. 
Moses.  18  Wash.  5.17.  52  Pac.  333.  40:  302 
Validity. 

.Authority  of  Directors  to  Stipulate  for,  see 

Corporations,  242. 
Presumption   as  to  Reasonableness    of.    see 

Kvidencp.  f)77. 
See  also  infra,  Editorial  Notes. 

9.  An  agreement  for  a  specified  percent- 
age in  case  a  note  is  "collected  by  process 
of  law  or  by  an  attorney"  is  invalid,  al- 
though a  provision  for  a  reasonable  at- 
torney's foe  to  be  ascertained  by  the  court 
would  i  (■  pood.  Levens  v.  Briggs,  21  Or. 
.1.33,  -28    ]\u:   1.5.  14:  188 

10.  An  unconditional  stipulation  in  a 
note  for  10  per  cent  attorney's  fees,  in  ad- 
dition to  interest,  is  void.  Wright  v. 
Traver.  73  ^iich.  40.3,  41   X.  W.  517,     3:  50 

11.  The  provision,  in  a  promissory  note, 
for  attornev's  fees  of  a  fixed    and    definite 


amount  in  case  the  note  is  collected  by  suit, 
is  not  contrary  to  public  policy  and  there- 
fore void,  although  courts  might  interfere 
to  prevent  oppression  or  collusion.  Ex- 
change Bank  v.  Tuttle,  5  N.  M.  427,  23  Pac. 
241,  7:445 

See  Wright  v.  Traver,  73  Mich.  493,  41 
N.  W.  517,  3:  50 

Montgomery  v.  Crosthwait,  90  Ala.  553,  8 
So.  498,  12:  140 

Bank  of  Commerce  v.  Fuqua,  11,  Mont.  285, 
28  Pac.  291,  14:  588 

12.  A  stipulation  in  a  promissory  note  for 
payment,  in  addition  to  interest,  of  costs  of 
collection,  including  attorney's  commis- 
sions, on  failure  to  pay  at  maturity,  is  valid 
although  rendering  the  note  non-negotiable. 
Bowie  V.  Hall,  69  Md.  433,  16  Atl.  64, 

1:546 

13.  A  statute  making  void  an  agreement 
to  pay  attorney's  fees  "upon  any  condition 
therein  set  forth"  does  not  make  void  a 
stipulation  for  attorney's  fees  in  a  bill  of 
exchange  which  expresses  no  condition  for 
such  stipulation,  although  it  is  properly 
construed  to  be  operative  only  on  condition 
of  the  dishonor  of  the  bill.  Farmers  Nat. 
Bank  V.  Sutton  Mfg.  Co.  6  U.  S.  App.  312. 
3  C.  C.  A.  1,  52  Fed.  191,  17:  595 

14.  A  provision  in  a  trust  deed  for  at- 
torney's' fees  in  case  the  property  is  sold 
under  the  d*ed  is  void  as  contrary  to  pub- 
lic policy.  Turner  v.  Boger,  126  N.  C.  300, 
35  S.  E.  592,  49:  590 

15.  An  attorney's  fee  for  the  foreclosure 
of  a  mortgage,  expressly  provided  for  in  the 
instrument,  is  collectible  on  foreclosure. 
Falls  V.  United  States  Sav.  L.  &  B.  Co.  97 
Ala.  417,  13  So.  25,  24:  174 

Editorial  Notes. 

Constitutionality  of  provision  for.     14:  586. 

Validity  and  effect  of  stipulations  for,  gen- 
erally. 1:  546;  3:  50;*  7: 
445.* 

Allowance  of,  out  of  fund  for  attorneys  of 
creditors  who  sue  in  be- 
half of  themselves  and 
other  creditors.    54:  817. 

Effect  of  stipulation  for,  upon  negotiability. 
1:  547;*  3:51.» 


ATTORNMENT. 


To  Mortgagee,  see  Landlord  and  Tenant, 
196. 

By  Subtenant,  see  Landlord  and  Tenant,  91. 

By  Possessor  of  Pledged  Property,'  see 
Pledge  and  Collateral  Security,  10. 

By  Carrier  Preventing  Stoppage  in  Tran- 
situ, see  Sale,  157. 


AUCTION. 

Liability  of  Auctioneer  for  Sale  of  Goods 
01  tain ed  by  Fraud,  see  Fraud  and  De- 
ceit, 7. 


AUDITOR. 


189 


Fraudulent  Statement    by    Auctioneer,    see 

Fraud  and  Deceit,  47. 
License  for  Auctioneer,  see  License,  153,  154. 
Conversion  by  Auctioneer,  see  Trover,  11. 

1.  A  sale  will  be  treated  as  made  by 
auction  where,  at  the  time  duly  appointed 
and  announced,  property  to  which  the  vend- 
or has  a  good  title  is  put  up  and  offered  for 
sale,  bids  are  made,  and  it  is  sold  to  the 
highest  bidder,  although  some  of  the  con- 
ditions which  attended  the  sale  may  be  un- 
usual. Rowley  v.  D'Arcy,  184  Mass.  550,  69 
N.  E.  325,  64:  190 

2.  A  tender  of  money  in  satisfaction  of 
the  amount  of  his  bid  by  one  who,  acting 
as  clerk  at  a  public  sale,  bid  off  property 
sold  thereat,  will  not  vest  the  title  to  the 
property  in  him  so  as  to  enable  him  to  re- 
cover it  from  the  possession  of  the  seller, 
where  the  terms  of  sale  provided  for  pay- 
ment in  interest-bearing  notes,';jFith  surety. 
Morgan  v.  East,  126  Ind.  42,  25  N.  E.  867, 

9:  558 
Puffing. 

3.  A  bid  at  a  public  sale  by  one  who  does 
not  desire  the  property,  and  who  is  em- 
ployed to  bid  in  the  interests  of  persons 
who  are  interested  in  having  the  property 
bring  a  good  price,  but  who  are  not  con- 
ducting the  sale  so  as  to  be  able  to  release 
a  bidder  from  responsibility,  does  not 
constitute  "puffing"  or  such  a  fraud  on  other 
bidders  as  to  release  them  from  responsi- 
bilitv  for  their  bids.  McMillan  v.  Harris, 
110  Ca.  72,  35  S.  E.  334,  48:  345 

4.  An  auction  sale  by  the  assignee  of 
property  of  an  insolvent  debtor  is  not 
rendered  void  by  a  combination  between 
creditors  of  the  estate  to  enhance  the  price 
by  fictitious  bids,  which  is  not  known  to,  or 
participated  in  by.  the  assignee.  Rowlev  v. 
D'Arcy,  184  Mass.  550,  69  N.  E.  325,  64:' 190 
Agreement  not  to  bid. 

Setting  Aside  Sale   for  Prevention   of  Bid- 
ding, see  Judicial  Sale,  39. 
See  also  infra,  Editorial  Notes. 

5.  An  agreement  between  two  or  more 
persons  that  all  but  one  shall  refrain  from 
bidding  at  a  judicial  sale,  and  that  he  shall 
be  permitted  to  purchase  the  property,  is 
not  necessarily  void,  but  will  be  upheld  if 
the  intention  of  the  parties  is  fair  and 
honest,  and  the  primary  purpose  is  not  to 
suppress  competition  but  to  protect  their 
own  rights,  and  there  is  no  fraudulent  pur- 
pose to  injure  or  defraud  others  interested 
in  the  sale.  Hopkins  v.  Ensign,  122  N.  Y. 
144.  25  N.  E.  306,  9:  731 

6.  An  agreement  between  a  person  who 
thinks  of  attempting  to  collect  a  debt  due 
him  from  the  estate  of  an  insolvent  mort- 
gagor, and  the  mortgagor's  devisee,  who 
wishes  to  bid  in  the  property  for  the  value 
of  the  mortgage,  by  which,  in  consideration 
of  the  creditor's  refraining  from  bidding  at 
the  sale,  the  devisee  is  to  give  him  a  mort- 
gage on  the  property  for  the  amount  of  his 
claim,  provided  the  latter  is  thereby  en- 
abled to  secure  the  property  at  the  desired 
price,  is  not  illegal  in  the  absence  of  un- 
lawful intent,  although  incidentally  prevent 


ing  competition;  and,  in  case  it  is  carried 
out  and  acquiesced  in  by  the  other  person 
interested  in  having  a  large  amount  realized 
by  the  sale,  the  mortgage  cannot  be  repudi- 
ated by  the  devisee.  Id. 

■    Editorial  Notes. 

Implied  exception  in  statute  as  to.    25:  569. 

Rights  of  vendee  at.    9:  558.* 

In   street,   as   a   nuisance,    subject    to    city 

control.     39:  678. 
Delegation  of  municipal  power  as  to  license 

of.     20:  724. 
Right  of  auctioneer  or  officer  conducting  a 
sale    to    make    bids.     20: 
503. 
On  their  own  account.    20:  503. 
Auctioneers.    20:  503. 
Sheriffs,    deputy    sheriffs,    commis- 
sioners, col1ecto"3,  consta- 
bles, etc.    20:  505. 
For  third  party.     20:  508. 
Right  to  withdraw  property  from  an  auc- 
tion sale  after  it  has  been 
offered.     57:784. 
In  England  and  Canada.     57:  784. 
Withdrawal  after  bids.     .57:  784. 
Withdrawal  before    bids.      57:  787. 
In  the  United  States.     57:  787. 
In  general.     57:  787. 
Judicial  and  official  sales.     57:  789. 
Effect  of  preventing  or  checking  bids  upon 
the   validity    of    sales    at 
auction.     20:  545. 
The  general  rule.    20:  545. 
The  qualifications  and  evoeptions  to  the 

rule.    20:  55L 
English  cases.    20:  553. 


AUDITOR, 

Mandamus  to,  see  Mandamus,  10. 

Duty  of,  as  to  Appropriations,  see  Appro- 
priations, 26-28. 

Adjustment  of  Claims  by,  see  Claims,  12. 

Delegation  of  Power  to,  see  Constitutional 
Law,  171. 

Empowering,  to  Determine  Innocence  of 
Pardoned  Convict,  see  Courts,  239. 

Mandamus  to,  see  Mandamus,  37. 

Assumption  of  Risk  by,  see  Master  and 
Servant,  269. 

Casting  Vote  of,  see  Parliamentary  Law, 
34. 

Reference  to,  see  Reference,  6. 

Suit  Against,  see  State,  7. 

Power  to  Correct  Tax,  see  Taxes,  463. 

Service  of  Process  on,  see  Writ  and  Process, 
27. 

A  county  auditor  receiving  a  letter  of  in- 
structions from  the  auditor  of  state,  which 
commands  the  performance  of  a  number  of 
acts,  some  of  which  are  proper  and  others 
not,  is  bound  to  follow  the  former,  but  may 
disregard  the  latter.  State  ex  rel.  Guilbert 
V.  HalUday,  61  Ohio  St.  352,  58  N.  E.  118, 

49:  427 


190 


AUTHOR— AYES  AND  NOES. 


AUTHOR. 

Libel  of,  see  Libel  and  Slander,  15,  18,  86. 

♦-•-♦^ 

AUTHORITIES. 

Submission  of,  to  Arbitrator  after  Close  of 
Testimony,  see  Arbitration,  16. 


AUTHORITY. 


Presumption   as  to,   see  Evidence,  IL   e,  4. 

Evidence  as  to,  see  Evidence,  XL  x. 

Of  Agent,  see  Principal  and  Agent,  II. 


AUTOMATIC  FIRE  EXTINGUISHER. 

Insurance  against  Loss  bj'  Accidental  Dis- 
charge of,  see  Insurance,  434,  435. 

Cause  of  Discharge  of,  see  Insurance,  969- 
971. 

Liability  for  Injury  by,  see  Landlord  and 
Tenant,  131. 


AUTOMATIC  SWITCH. 

Dutv  as  to  Use  of,  see  Master  and  Servant, 
"89. 


AUTOMOBILES. 


Judicial  Notice  as  to  Speed  of,  see  Evi- 
dence, 162. 

Limiting  Speed  of,  see  Parks  and  Squares, 
15-17. 

1.  The  regulation  of  the  speed  of  auto- 
mobiles may  be  effected  by  the  use  of  the 
words  "ride  or  drive."  Com.  v.  Crownin- 
shield,  187  Mass.  221,  72  N.  E.  963,      68:  245 

2.  Requiring  an  automobile  to  carry  a 
number  does  not  violate  the  constitutional 
provision  against  unreasonable  searches,  or 
compel  the  owner  to  testify  against  him- 
self, or  deprive  him  of  property  without 
due  process  of  law.  People  v.  Schneider, 
139  Mich.  673,  103  N.  W.  172,  69:  345 

3.  Power  to  require  the  registering  and 
numbering  of  automobiles  is  conferred  upon 
the  city  council  by  charter  authority  to 
control,  prescribe,  and  regulate  the  manner 
in  which  the  streets  shall  be  used  and  en- 
joyed. Id. 


AUTOPSY. 

Opinion  Evidence  as  to.  see  Evidence,  1256, 

1289. 
Evidence  as  to  What  Took  Place    on,    see 

Evidence,  1559. 
Evidence    as    to    Subsequent    Condition    of 

Body,  see  Evidence,  1951. 
See  also  Corp.se.  6-8. 

Editorial  Notes. 

Power  of  coroner  to  order.     31:  540. 


AUXILIARY  SUIT. 

In  Federal  Court,  see  Courts,  III.  g. 
Service  of  Writ  in,  see  Writ  and  Process,  9_ 


AVERAGE. 

Effects  of  passengers  not  in  daily  use  or 
attached  to  the  person  are  not  only  to  be 
contributed  for,  but  are  liable  to  contribute, 
in  general  average.  Heve  v.  North  German 
Lloyd,  36  Fed.  705,        '  2:  287 

Editorial  Notes. 

Contribution  of  passengers'  effects.    2:  287.*' 
Maritime  lien  for.    70:  363,  375. 


AVOWRY. 

For  Rent,  see  Landlord  and  Tenant,  223. 


AWARD. 

Of  Arbitrators,  see  Arbitration,  TIL 
Doctrine   of  Comity   as   to,   see   Conflict   of 

Laws,  12. 
As  Evidence,  see  Evidence,  842. 


AWNING. 

Estoppel  as  to,  see  Estoppel.  22. 

Presumption  as  to  License,  see  Evidence,. 
731. 

Injunction  against  Removal  of.  see  Injunc- 
tion, .323. 

In   Street    Cenerally,   see   Highways,   71-76. 

Landlord's  Liability  for  Injury  by,  see 
Landlord  and  Tenant,  165. 

Ordinance  as  to,  see  Municipal  Corporations, 
150,  151. 

Negligence  as  to,  see  Negligence,  88. 

Editorial  Notes. 

Right  to  maintain  in  streets.    26:  340. 
Liability   of   landlord   to   third   persons   for 
condition  of.     26 :  200. 


AX. 

Fall  of  Head  of,  from  Building,  see  Negli- 
gence, 45. 


AYES  AND  NOES. 


On  Note  on  Proposed  Constitutional  Amend- 
ment, see  Constitutional  Law,  1.5. 

On  Vote  to  Employ  Teachers,  see  Schools. 
33. 

On  Passage  of  Statute,  see  Statutes,  2,  18, 
127-1.30. 


BACK  FIKE— BAIL  AND  RECOGNIZANCE. 


191 


B 


BACK  FIRE. 

As  Proximate  Cause,  see  Proximate  Cause, 
47-49. 

Question  for  Jury  as  to  Negligence  in  Start- 
ing, see  Trial,  4.56. 

See  also  Fires,  12-14. 


Editorial  Notes. 


Liability  of.     34:  137. 


BAD  DEBTS,     i 


Libel  by  Collecting  Agency,  see  Libel   and 

Slander,  1,  47,  48,  122. 
Liability   of   Member   of   Collecting   Agency 

for  Libel,  see  Libel  and  Slander,  1. 


BAGGAGE. 

In   General,   see  Carriers,   II.  a,   12;   IV.   §§ 

15,  28. 
Grant  of  Exclusive  Privilege  to  Solicit,  see 

Carriers,  1045-1067. 

Forfeiture  of  Dutiable  Articles  in,  see  Du- 
ties, 2-."). 

Lien  on,  for  Duties,  Instructions  as  to,  see 
Trial,  788. 

Disinfection  of,  see  Health,   16. 

Complaint  for  Carrying  without  License,  see 
Indictment,  etc.,  75. 

License  for  Carrying,  see  License,  142. 

Innkeeper's  Liability  for,  see  Innkeepers, 
III.  b. 


BAGGAGE  CAR. 


Passenger  Riding  in,  see  Carriers,  246,  247, 
320. 

Placing  Disorderly  Passenger  in,  see  Car- 
riers, 188. 


BAGGAGE    MASTER. 

Carrier's  Liability  for  Arrest  by,  see  Car- 
riers, 187. 


BAGGAGE  TRANSFER  COMPANY. 

Contract    for    Baggage    Transfer,    see    Car- 
riers, 680. 


BAIL  AND  RECOGNIZANCE. 

Loss  of  Jurisdiction  by  Admitting  to,  see 
Criminal  Law,  249,  250. 

Garnishment  of  Money  Deposited  as,  see 
Garnishment,   56. 

Municipal  Liability  for  Requiring  Exces- 
sive Bail,  see  Municipal  Corporations, 
510. 

1.  Where  a  party  is  in  custody  under  an 
information  charging  him  with  a  bailable 
felony,  and  the  judge  of  the  criminal  court 
of  record  before  which  he  is  charged  refuses 
to  take  any  action  whatever  in  the  case, 
either  as  to  bail  or  trial,  on  the  ground 
that  he  is  disqualified  by  reason  of  interest 
and  affinity  to  act,  and  it  does  not  appear 
to  the  supreme  court,  on  a  habeas  corpus 
proceeding,  that  tne  judge  is  disqualified, 
bail  conditioned  for  the  party's  appearance 
before  the  criminal  court  of  record  will  be 
allowed.  Ex  parte  Harris,  26  Fla.  77,  7  So. 
1,  6:  7ia 
Right  to;  when  admitted  to. 

See  also  infra.  Editorial  Notes. 

2.  Whether  one  under  arrest  as  an  al- 
leged fugitive  from  justice  shall  be  ad- 
mitted to  bail  pending  appeal  from  an  order 
refusing  to  annul  the  warrant  of  arrest,  is 
a  matter  "of  judicial  discretion.  Farrell  v. 
Hawley,    78    Conn.    150,    61    Atl.    502, 

70:  68ft 

3.  The  discretion  of  the  circuit  court  to 
order  into  actual  custody  a  defendant  in 
a  criminal  trial  which  has  commenced  can- 
not be  restricted  by  a  previous  allowance 
of  bail  bv  a  countv  judge.  Atkins  v.  Com. 
98  Ky.  539,  33  S.  W.  948,  32:  108 

4.  Bail  pending  appeal  from  a  conviction 
may  be  allowed  because  of  the  extraordinary 
character  of  the  circumstances,  on  proof  by 
physicians,  one  of  whom  was  selected  by 
the  district  attorney,  that  the  prisoner  is 
suffering  from  asthma  and  trouble  with  his 
lungs  to  such  an  extent  that  his  continued 
incarceration  in  the  county  jail  in  the  physi- 
cal conditions  existing  there  will  be  fraught 
with  serious  impending  danger  to  his  health, 
and  will  probably  be  fatal  if  he  is  laft 
there  three  months  or  more.  Re  Ward,  127 
Cal.   489,   59   Pac.   894,  47:  466 

5.  The  court  must,  upon  an  application 
made  before  his  trial  by  one  indicted  for 
murder  in  the  first  degree,  the  punishment 


192 


BAILIFF:  BAILMENT.  I. 


for  which  is  death,  investigate  the  proof  of 
his  guilt;  and  if,  although  aided  by  the 
presumption  arising  from  the  indictment, 
it  is  not  so  clear  and  strong  as  to  lead  a 
well-guarded  and  dispassionate  judgment 
to  the  conclusion  that  the  ofTense  has  been 
committed,  that  the  accused  is  the  guilty 
agent,  and  that  he  will  probably  be  punished 
capitally  if  the  law  is  administered,  the  ac- 
cused must  be  admitted  to  bail  under  a 
constitutional  provision  that  all  persons 
shall  be  bailable  except  for  capital  offenses, 
when  the  proof  is  evident  or  the  presump- 
tion great.  Re  Losasso,  15  Colo.  163,  24 
Pac.  1080,  10:   847 

Validity  of  bond. 

6.  A  bail  bond  given  under  Fla.  act  Janu- 
ary 6,  1848  (McClel.  Dig.  439,  440),  must 
be  approved  by  the  court,  if  given  while 
the  court  rendering  judgment  or  sentence 
is  in  session.  Williams  v.  State,  25  Fla. 
734,  6  So.  831,  6:  821 

7.  Unless  an  instrument  giv^n  as  bail,  un- 
der Fla.  act  January  6,  1848  (McClel.  Dig. 
439,  440),  has  a  seal,  it  is  not  a  bond  as 
required  by  the  act,  and  will  not  authorize 
execution  thereon,  under  the  statute,  "as 
if  there  had  been  judgment  at  law  upon  such 
bond."  Id. 

8.  A  bail  surety  who  requests  the  court 
to  impose  a  fine,  instead  of  imprisonment, 
on  a  prisoner,  and  offers  to  give  bond  to 
secure  payment  of  the  fine,  and  who  signs 
a  paper  purporting  to  be  a  bond,  and  in- 
forms the  court  he  has  given  the  bond  re- 
quired by  law,  whereupon  the  prisoner  is 
relea.sed  and  works  as  a  tenant  for  the 
surety  until  the  paper  falls  due,  is  not  es- 
topped from  questioning  the  legality  of  an 
execution  issued  by  the  clerk  upon  the  re- 
turn of  the  paper,  on  the  ground  that  there 
was  no  seal  to  such  paper,  where  it  was 
taken  and  approved  in  open  court  by  the 
judge.  Id. 
Who  may  act  as  bail. 

9.  Persons  who  have  been  indemnified 
by  the  accused  should  not  be  accepted  as 
bail  for  one  convicted  and  sentenced  to  im- 
prisonment for  embezzlement,  pending  his 
appeal  from  the  juiigment  of  conviction. 
United  States  v.  Simmons,  47  Fed.  575, 

14:  78 
Rights  of  sureties. 
See  also  infra,  Editorial  Notes. 

10.  Sureties  on  the  bail  bond  of  an  in- 
dicted person  who  has  fied  into  another 
state  may  follow  and  arrest  him  there, 
either  in  person  or  by  agent;  and  the  fact 
that  the  bond  has  been  conditionally  for- 
feited and  a  scire  facias  issued  is  imma- 
terial. State  V.  Lingeifolt,  109  N.  C.  775, 
14  S.  K.  75,  14:  605 
Forfeiture  of  bond. 

11.  The  pardon  of  an  accused  whose  bail 
bond  has  been  forfeited  for  a  departure 
from  court  contrary  to  the  conditions  of  the 
bond  does  not  aHect  the  forfeiture.  Dale 
V,  Com.  101  Ky.  012.  42  S.  W.  93,       38:  808 

Editorial    Notes. 

Indemnity  to,  in  Criminal  cases.     14:  78. 


Execution  of  bail  bond  on  condition  that 
others  shall  sign.    45:  334. 

Right  of  sureties  on  bail  bond  to  pursue 
their  principal  into  an- 
other state  for  the  pur- 
pose of  arresting  him. 
14:  605. 

Admission  to,  on  arrest  for  crime,  a  con- 
stitutional right;  form  of 
recognizance;  in  capital 
ofi"enses;  in  cases  of  homi- 
cide; proof  insufficient  to 
justify  denial  of;  discre- 
tion of  court  conclusive 
on  appeal.     10:  847.* 

Special,  in  suit  for  slander  by  wife.  30: 
530. 

Delay  of  prosecution  as  ground  for  dis- 
charge where  accused  out 
on  bail.   56:  533. 

Form  of  judgment  on  bail  bond.    62:  443. 

Penalty  as  limit  of  liability  on  bail  bond. 
55:391. 


BAILIFF. 

Accompanying    Jury,    Oath    of,    see    Trial, 
889. 


BAILMENT. 


I.  In  General. 
II.  Rights  of  Bailee. 

III.  Duty  and  Liability  of  Bailee. 

IV.  Editorial  Notes. 

Liability  of  Bank  Directors  as  Gratuitous 

Mandatories,  see  Banks,  57. 
Carrier  as  Bailee  of  Baggage,  see  Carriers, 

675. 
Consideration    of,    see    Contracts,    37. 
Contribution  in  Case  of  Insurance  of  Bailed 

Property,  see  Insurance,  1277. 
Levy    on    Property    Bailed,    see    Levy    and 

Seizure,  9. 
Lien    for    Repairs    on    Chattel    Bailed,    see 

Liens,  15. 
Limitation  of  Action  as  to,  see  Limitation 

of  Actions,  107. 
Right  of  Bailee  of  Logs  to  Compensation  for 

Driving,  see  Logs  and  Logging,.  2. 
Bailee's   Servant   as   Servant  of  Bailor,  see 

Master  and  Servant,  15. 
Imputing  Bailee's  Negligence  to  Bailor,  see 

Negligence,  251,  252. 
Of  Public  Money,  see  Officers,  204. 
Defense   to  Bailee's  Breach  of  Contract   to 

Procure    Insurance,   see   Payment,   5. 
Pledge  as,  see  Pledge  and  Collateral   Secu- 
rity, 1. 
Conversion   by  Bailee,   see  Trover,    17,  36; 

and  also  infra,  IV.  §  4. 
As  to  Warehousemen,  see  Warehousemen. 


I.  In  General. 
1.  A  general  proposal  to  all  persons  hav- 


BAILMENT,  II.,  III. 


198 


ing  articles  deemed  worthy  of  exhibition 
to  entrust  them  to  a  corporation  for  a 
competitive  exhibition  at  a  fair,  with  a 
promise  of  redelivery  when  the  exhibition 
is  closed,  becomes  a  special  contract  with 
each  person  sending  articles  for  exhibition, 
when  they  are  received  and  accepted. •Prince 
V.  Alabama  State  Fair,  106  Ala.  340,  17 
So.  449,  28:  716 

2.  A  library  board  of  a  city,  which  has 
statutory  power  to  receive  property  by 
gift,  grant,  purchase,  devise,  bequest,  "or 
otherwise,"  for  the  purpose  of  maintaining 
public  libraries,  art  galleries,  and  museums, 
has  power  to  receive  a  collection  of  coins 
as  a  loan  from  the  owner,  and  become  lia- 
ble therefor  as  bailee.  Smith  v.  Minneapo- 
lis Library  Bd.  58  Minn.  108,  59  N.  W. 
979,  25:  280 

3.  A  person  sued  individually  for  bonds 
received  from  another  may  sUow  that  he 
received  them  from  the  latter  jfe  the  prop- 
erty of  her  husband's  estate,  of  which  he 
was  executor,  as  against  a  claim  by  her 
administrator  that  they  belonged  to  her 
by  gift  from  the  testator.  Penny  v.  Croul, 
87  Mich.  15,  49  N.  W.  311,  .13:  83 
What  constitutes. 

See  also  Warehousemen,  4,  6. 

County  Treasurer  as  Bailee,  see  Bonds,  74, 

77. 
For  Editorial  Notes,  see  infra,  IV.  §  1. 

4.  A  mere  bailment,  and  not  a  sale  which 
passes  title,  is  made  by  a  contract  whereby 
farmers  deliver  produce  at  a,  factory  owned 
by  them,  to  be  manufactured  into  pickles, 
sauerkraut,  and  other  similar  articles,  the 
proceeds  of  the  sales  of  which  are  to  be 
divided  in  a  certain  ratio  between  the  farm- 
ers and  the  manufacturers.  Sattler  v.  Hal- 
lock,  160  N.  Y.  291,  54  N.  E.  667,        46:  679 

5.  No  bailment  is  created  by  placing  a 
gas  meter  on  the  premises  of  the  consumer, 
to  fulfil  the  requirements  of  the  law  for 
the  purpose  of  measuring  the  gas  consumed 
by  him  and  connecting  his  pipe  with  the 
supply  pipe  of  the  gas  company.  Con- 
solidated Gas  Co.  v.  Blondell,  89  Md.  732,  43 
Atl.  817,  46:  187 

6.  An  agreement  to  manufacture  engrav- 
ings and  lithographs  for  theatrical  purposes 
for  the  special  use  of  a  person,  to  be  taken 
and  paid  for  by  him  during  a  theatrical  sea- 
son, the  work  to  be  ready  for  delivery  by  a 
certain  day,  is  not  a  sale,  but  an  agreement 
for  work  and  labor;  and  the  manufacturer 
holds  the  work  merely  as  bailee  subject  to 
the  lien  of  the  consideration  to  be  paid. 
Central  Lithographing  &  E.  Co.  v.  Moore, 
75  Wis.  170,  43  N.  W.  1124,  6:  788 
Different  kinds  of  bailment. 

7.  A  bailment  is  for  hire,  although  no 
hire  is  paid,  when  it  is  a  necessary  incident 
of  a  business  in  which  the  bailee  makes  a 
profit.  Woodruff,  v.  Painter,  150  Pa.  91,  24 
Atl.  621,  16:  451 

8.  The  essentiifl  elements  and  character- 
istics of  a  lucrative  as  distinguished  from  a 
mere  gratuitous  bailment  exist  in  the  case 
of  the  loan  of  a  painting  for  a  competitive 
exhibition    at    a    fair.      Prince    v.    Alabama 

L.R.A.  Dig.— 13. 


State  Fair,  106  Ala.  340,  17  So.  449,    28:  716 
Termination  of. 

9.  A  bailment  of  hire  is  terminated 
when  the  property  is  no  longer  fit  and  suit- 
able for  and  cannot  be  devoted  to  the  use 
for  which  it  was  hired,  so  as  to  give  the 
bailor  the  right  to  maintain  an  action  for 
injury  done  to  the  property.  New  Jersey 
Elec.  R.  Co.  v.  New  York,  L.  E.  &  W.  R. 
Co.  (N.  J.  Sup.)  61  N.  J.  L.  287,  41  Atl. 
1116,  43:  849 
Rights  of  purchaser  from  bailee. 

10.  An  innocent  purchaser  of  a  diamond 
intrusted  by  the  owner  to  another  for  the 
purpose  of  exhibition  to  a  pretended  pur- 
chaser, but  immediately  pledged  by  him  to 
the  keeper  of  a  gambling  house,  and  sold 
by  the  two,  acquires  no  title  as  against  the 
owner.  Baehr  v.  Clark,  83  Iowa,  313,  49 
N.  W.  840,  13:  717 

11.  The  fact  that  lessees  of  a  piano  have 
a  retail  store  at  which  musical  instruments 
are  kept  for  sale,  which  is  well  known  to 
the  lessor,  gives  the  lessees  no  right  to  sell 
the  instrument.  Oliver  Ditson  Co.  v.  Bates, 
181  Mass.  455,  63  N.  E.  908,  57:  289 
Bailor's  right  of  action  against  third  per- 
son. 

12.  A  bailor  can  maintain  an  action 
against  a  third  party  for  injury  done  to  a 
chattel  during  the  continuance  of  the  bail- 
ment, whether  an  action  might  or  might  not 
be  maintained  against  such  third  party  by 
the  bailee  for  trover,  trespass,  or  replevin  to 
control  the  immediate  possession.  New 
Jersey  Elec.  R.  Co.  v.  New  York,  L.  E.  &  W. 
R.  Co.  (N.  J.  Sup.)  61  N.  J.  L.  287,  41  Atl. 
1116,  43:  849 


II.  Rights  of  Bailee. 

For  Editorial  Notes,  see  infra,  IV.  §§  1,  2. 

13.  Storage  charges  may  be  recovered,  al- 
though the  goods  stored  are  damaged 
through  the  negligence  of  the  storer,  where 
he  has  been  compelled  to  make  good  the 
loss  by  paying  damages.  Marks  v.  New 
Orleans  Cold  Storage  Co.  107  La.  172,  31 
So.  671,    .  57:  271 

14.  The  owner  of  a  cold-storage  ware- 
house may  retain  possession  of  goods  stored 
until  the  storage  charges  are  paid;  and  the 
amount  due  for  storage  cannot  be  com- 
pensated by  an  unliquidated  claim  for  dam- 
ages suffered  by  the  goods.  Id. 

15.  Insurance  of  goods  manufactured  to 
order  by  the  manufacturer,  who  holds  them 
as  bailee,  although  taken  by  him  as  nominal 
owner,  is  not  material  as  bearing  on  the 
question  of  their  ownership,  or  of  his  right 
to  collect  the  amount  due  him  on  the  con- 
tract from  the  person  for  whom  they  were 
made.  Central  Lithographing  &  E.  Co.  v. 
Moore,  75  Wis.  170,  43  N.  W.  1124,     6:  788 


III.  Duty  and  Liability  of  Bailee. 

Banker's  Liability  for  Negligence  in  Loan- 
ing for  Customer,  see  Banks,  289-294. 


194 


BAILMENT,  III. 


On  Breach  of  Contract  to  Insure  Property, 

see  Contracts,  748. 
As  to  Livery  Horse,   see  Livery   Stable,   1. 
For  Editorial  Notes,  see  infra,  IV.  §  2. 

16.  It  is  the  duty  of  a  bailee  of  goods  to 
do  work  upon  them  for  a  reward,  to  re- 
turn them  to  the  owner  immediately  upon 
completion  of  the  work.  Dale  v.  See  (N. 
.T.  Err.  &  App.)  51  N.  J.  L.  378,  18  Atl. 
306.  5:  583 

17.  Upon  a  bailment  of  goods  to  do  work 
upon  them  for  a  reward,  the  contract  im- 
plied by  law  that  the  work  shall  be  done 
with  due  care  ana  competent  skill  arises  im- 
mediately upon  delivery  of  the  goods.  Id. 
Limitation  of  liability. 

Sv  Warehouseman,  see  Warehousemen,   16, 
17. 

18.  A  cold-storage  company  may  by  con- 
tract limit  its  liability,  provided  such  limi- 
tation does  not  contravene  rules  and  laws 
enacted  on  grounds  of  public  policy;  but 
the  limited  liability  clause  should  be  specific, 
and  include  in  its  terms  al.'  :I^ftiages  and 
acts  for  which  the  cold  storer  does  not  hold 
himself  responsible.  Marks  v.  New  Or- 
leans Cold  Storage  Co.  107  La.  172,  31 
So.  671,  _  57:  271 

19.  Stipulations  or  conditions  qualifying 
or  abridging  the  contract  implied  by  law 
upon  a  bailment  must  be  contained  in,  or 
made  a  part  of,  the  origiiial  contract  of 
bailment.  Dale  v.  See  (N.  J.  Err.  &  App.) 
51  N.  J.  L.  378,  18  Atl.  306,  5:  583 

20.  A  notice  printed  on  bills  presented 
by  a  dyer  of  goods  for  work  done  by  him, 
"All  claims  for  deficiency  or  damage  must 
be  made  within  three  days  from  date;  oth- 
erwise not  allowed," — is  not  binding  upon 
the  party  for  whom  the  work  is  done.       Id. 

21.  Notice  by  a  bailee  of  goods  to  do  work 
upon  them  for  a  reward,  together  with  a  re- 
turn of  the  goods,  or  with  the  bill  for  the 
work  done,  containing  conditions  qualify- 
ing his  liability  for  defective  workmanship, 
lacks  the  consideration  necessary  to  sup- 
port a  contract,  although  the  owner  ac- 
cepts the  goods  with  knowledge  of  the  con- 
tents of  the  notice.  Id. 
Loss  of,  or  injury  to  property,  generally. 
Presumption    and    Burden    of    Proof    as    to 

Negligence,   see   Evidence,   537-539. 
Liability  of  Warehouseman,  see  Warehouse- 
men, 11,  12. 

22.  The  degree  of  care  required  of  a 
bailee  depends  on  the  nature  and  value  of 
the  thing  bailed  and  its  liability  to  loss 
or  injury.  Prince  v.  Alabama  State  Fair, 
106  Ala.*  340.   17  So.  449,  28:  716 

23.  A  lack  of  proper  care  which  will  create 
a  liability  for  the  loss  of  a  painting  on  the 
part  of  a  corporation  to  which  it  has  been 
loaned  for  a  competitive  exhibition  at  a 
fair  is  shown  where,  after  the  close  of  the 
fair  and  the  withdrawal  of  policemen,  the 
duty  of  repacking  and  reshipping  it  is  in- 
trusted to  an  agent  or  officer  who  is  not 
informed  that  the  painting  has  been  exhibit- 
ed or  in  the  possession  of  the  corporation, 
and  servants  are  employed  to  aid  him  who 


are  unknown  to  him  and  of  whose  skill  or 
integrity    there    is    no    evidence.  Id. 

24.  A  resolution  by  the  board  of  direct- 
ors of  a  corporation  which  has  become  a- 
bailee  of  property,  to  the  effect  that  it 
will  not  be  responsible  in  any  manner  for 
the  safety  of  the  property,  will  not,  even 
if  it  is  brought  to  the  notice  of  the  owner, 
relieve  the  corporation  from  liability  for 
loss  in  case  of  its  gross  negligence.  Smith 
V.  Minneapolis  Library  Bd.  58  Minn.  108, 
59  N.  W.  979,  25:  280 

25.  One  who  hires  a  horse  to  go  to  a 
certain  point  has  no  right,  without  the  con- 
sent of  the  owner,  to  go  with  the  horse  be- 
yond that  point,  unless  forced  to  do  so  by 
circumstances  which  he  cannot  controL 
Farkas  v.  Powell,  86  Ga.  800,  13  S.  E.  200. 

12:  397 

26.  Riding  a  hired  horse  a  few  miles  be- 
yond the  point  to  which  he  was  hired  to  go- 
will  not  make  the  hirer  liable  for  the  losa 
of  the  horse,  where,  after  returning  from 
the  extra  trip,  he  fell  on  the  homeward 
road,  and  died  a  day  or  two  afterwards,  un- 
less the  extra  ride  caused  or  materially  con- 
tributed to  this  result.  Id.. 
By  fire. 

Liability  of  Warehouseman,  see  Warehouse- 
men, 9,  10. 
See  also  Contracts,  670. 

27.  A  hirer  of  personal  property  under 
an  agreement  to  return  it  at  the  expira- 
tion of  the  lease  in  as  good  condition  as 
when  taken,  usual  wear  excepted,  is  not 
liable  for  its  loss  by  fire  without  his  fault. 
Seevers  v.  Gabel,  94  Iowa,  75.  62  N.  W.  660, 

27:73J 

28.  Failure  of  the  owner  of  a  building 
to  comply  with  an  ordinance  requiring  fire- 
proof shutters  on  all  brick  buildings  with- 
in the  city  limits  is  not  such  negligence  a* 
will  render  him  liable  to  persons  whose 
goods  were  in  his  custody  as  bailee,  and 
were  destroyed  by  fire  communicated  to  the- 
building  through  the  unprotected  windows. 
Frontier  Steam  Laundry  Co.  v.  Connolly 
(Neb.)    101  N.  W.  995,  68:  425- 

29.  A  livery-stable  keeper  who  stores  a 
hearse  for  an  imdertaker,  under  an  agree- 
ment which  does  not  expressly  specify  any 
particular  stable,  though  both  expect  that 
it  will  be  kept  at  the  main  stable,  at  which 
place  only  it  is  covered  by  an  insurance 
policy,  is  not  liable  for  the  loss  of  the 
hearse  by  fire  while  stored  in  another  stable 
also  used  in  his  business,  where  he  did  net 
in  fact  know  of  the  limitation  of  the  insur- 
ance, altliough  a  similar  limitation  existed 
in  policies  upon  his  own  vehicles.  Bradley 
V.  Cunningham,  61   Conn.  485,  23  Atl.  432,. 

15:  67(» 

30.  Where  <  !igraviiigs  and  lithographs 
were  burned  while  in  the  possession  of  the 
manufacturer,  after  they  were  ready  for 
delivery  and  after  they  had  been  accepted 
by  the  person  for  whom  they  were  made, 
the  latter  must  sufTer  the  loss.  Central 
Lithographing  &  E.  Co.  v.  Moore,  75  Wis. 
170.  43  N.  W.  1124.  6:  788- 
Of  customer  in  store. 

31.  A    retail    merchant    is    liable    for   the- 


BAILMENT,  IV. 


IDS 


loss  of  a  customer's  watch  and  chain  which 
is  taken  off,  and,  at  the  suggestion  of  a 
salesman,  put  in  a  drawer  while  the  cus- 
tomer is  trying  on  clothing,  if  ordinary  care 
is  not  exercised  for  its  safety,  but  not  if 
it  is  stolen ,  where  he  has  exercised  such 
care.  Woodruff  v.  Painter,  150  Pa.  91,  24 
Atl.  621,  16:  451 

32.  A  merchant  having  a  store  in  which 
he  keeps  ready-made  cloaks  for  sale,  who 
provides  mirrors  for  the  use  of  customers 
trying  on  such  cloaks,  and  clerks  to  aid  in 
the  process,  thereby  impliedly  invites  cus- 
tomers to  remove  their  old  cloaks  while  try- 
ing on  new  ones;  and  he  is  bound  to  exer- 
cise some  care  over  the  old  cloak  while 
the  customer's  attention  is  engaged  in  look- 
ing at  the  new  one.  Bunnell  v.  Stern,  122 
N.  Y.  539,  25  N.  E.  910,  10:  481 

33.  Where  a  merchant,  whose  duty  it  is 
to  exercise  some  care  over  the,  old  cloak 
of  a  customer,  which  has  been  removed 
for  the  plirpose  of  trying  on  a  new  one, 
while  the  customer's  attention  is  engaged 
with  the  new  cloak,  provides  no  place  where 
the  old  cloak  can  be  left,  fails  to  notify 
the  customer  to  look  out  for  it,  and  makes 
no  rules  requiring  employees,  after  seeing 
it  placed  on  a  counter,  to  keep  watch  of  it, 
he  is  liable  to  the  customer  for  its  value 
if  it  is  lost.  Id. 
While  in  cold  storage. 

For  Editorial  Xotes,  see  infra,  IV.  §  2. 

34.  For  the  deterioration  of  goods  while 
in  cold  storage  the  cold  storer  is  responsi- 
ble, notwithstanding  that  in  the  heading  of 
the  receipt  issued  for  the  goods  there  is 
printed  a  limited-liability  clause  to  the  ef- 
fect that  goods  are  not  examined  when  re- 
ceived, and  therefore  the  warehouseman 
will  not  be  responsible  for  the  contents 
or  damage,  or  for  leakage,  depreciation,  or 
damage  by  rats.  Marks  v.  New  Orleans 
Cold   Storage  Co.    107   La.    172,   31    So.   671, 

.57:271 

35.  The  undertaking  of  the  owner  of  a 
cold-storage  warehouse  being  to  preserve 
goods  liable  to  undergo  or  actually  under- 
going deterioration  through  the  develop- 
ment in  them  of  insect  life,  it  is  not  neces- 
sary, in  order  to  recover  against  him  for 
damage  to  goods,  to  prove  more  than  that 
the  goods,  when  delivered  into  his  cold  stor- 
age, were,  according  to  the  usual  and  or- 
dinary test  of  commerce,  soimd.  Id. 

36.  Bailees  for  hire  who  received  dressed 
poultry  to  be  kept  in  cold  storage,  without 
any  specific  agreement  respecting  the  tem- 
perature to  be  maintained,  are  not  liable  for 
a  damaged  condition  of  the  poultry  due  to 
the  fact  that  the  temperature  was  too  high, 
when  this  was  such  as  is  usually  maintained 
in  cold-storage  rooms,  and  both  parties  sup- 
posed it  would  be  sufficiently  cold,  but  it 
was  not  so  low  as  that  at  which  a  freezer 
is  kept.  Allen  v.  Somers,  73  Conn.  355.  47 
Atl.  653,  52:  106 
Delivery  to  third  person. 

By   Warehouseman,  see   Warehousemen,   14, 
15. 

37.  Lack  of  care  by  a  bailor  in  keeping 
a  check  for  his  property,  given  him  by  the 


bailee,  will  not  prevent  recovery  for  wrong- 
ful surrender  of  the  property  by  the  bailee 
to  one  who  presented  the  check,  but  who 
had  no  right  to  it,  if  the  bailee  could  have 
avoided  the  loss  by  the  exercise  of  reason- 
able care.  Tombler  v.  Koelling,  60  Ark.  62, 
28  S.  W.  795,  27 :  502 

38.  Possession  of  a  check  for  a  watch  and 
other  valuables,  given  by  the  keeper  of  a 
bath-house  to  a  patron  as  a  means  of  iden- 
tifying his  property,  is  not  proof  of  a  right 
to  the  property,  and  will  not  justify  its  de- 
livery to  one  who  has  no  right  to  the  check, 
where  the  custodian  knows  both  the  bailor 
and  the  property  and  would  have  known 
that  the  person  presenting  the  check  was 
not  entitled  to  the  property  if  he  had 
looked  lit  him.  Id. 

39.  When  property  in  the  custody  of  a 
safe  deposit  company  for  safe  keeping  and 
storage  is  demanded  by  third  persons  undei- 
color  of  process,  it  becomes  the  duty  of 
the  company  to  ascertain  whether  or  not 
the  process  requires  a  surrender  of  the  prop- 
erty; and  if  it  does  not  then  the  company 
must  refuse  to  surrender  it  and  offer  such 
resistance  to  the  taking,  and,  if  unsuccess- 
ful in  this,  adopt  such  measures  for  re- 
claiming it,  as  a  prudeni,  and  intelligent 
man  would  offer  and  adopt  if  the  demand 
was  made  and  the  property  taken  by  a 
third  person  under  a  claim  of  right  without 
legal  process.  Roberts  v.  Stuyvesant  Safe 
Deposit  Co.   123  N.  •¥.   57,  25  N.  E.  294, 

9:  438 

40.  It  is  no  defense  to  an  action  by  the 
owner  of  property  against  a  safe  deposit 
company  to  recover  for  the  loss  of  the  prop- 
erty, which  was  left  with  it  for  safe  keep- 
ing, and  which  it  negligently  permitted  to 
be  taken  by  a  third  person,  that  after  it 
went  into  the  possession  of  such  third  per- 
son it  was  seized  under  legal  process  against 
the  owner;  but  if  it  can  be  shown  that  the 
owner  had  the  benefit  of  it  by  application, 
through  regular  legal  proceedings,  upon  a 
judgment  against  him,  such  fact  will  go  in 
mitigation  of  damages.  Id. 


IV.  Editorial   Notes. 

§  I.  Generally. 

Distinguished    from    sale.       10:  233.* 

Reservation    of    title,    as    against    creditors 

in  bailment  for  sale.     22: 

850. 
Criminal  responsibility  of  child  for  larceny 

while  bailee.     36 :  202. 
§  2.  Duty  and  liability  of  bailee. 
Liability  of  gratuitous  bailee.     10:  481.* 
Liability  of  carrier  as  bailee.    6:  853.* 
Liability   of   warehousemen   as   bailees.     6: 

857;*  7:  529.* 
Liability  of  innkeeper  as  bailee.     8:  98.* 
Liability  of  bailee  for  hire.     12:  397-* 
Liability  of  bailee  of  horse.     12:  397.* 
Liability  of  hirer  for  driving  team  to  place 

where  it  was  not  hired  to 

go.     26:  366. 
Liability  of  bailee  of  bicycle.     47:  305. 


196 


BAIL  TROVER— BANKRUPTCY. 


Liability  of  infant  bailee  for  negligence  or 

wilful  injury.     57:  680. 
Liability  of  bailee  for  wrongful  appropria- 
tion   bv    his    servant    of 
thing   bailed.     29:  92. 
Where  servant  has  no  duty  in  respect 

to  thing  bailed.     29:  94. 
Where  servant's  duties  give  him  some 
control    of    thing    bailed. 
29:  94. 
Goods  not  in  possession  of  master.  29: 

96. 
Effect  of  statute.     29:  96. 
Ratification.     29:  96. 
Special  contract.    29:  96. 
Liability    of   bailee    for   damages   to   goods 
received  for  cold  storage. 
52:  106. 
Measure  of  damages.    52:  lOR. 
Liability   of   pledgee   of   stock   as   a   share- 
holder.    36:  139. 
When  statute  of  limitations  begins  to  run 
in    favor    of    bailee.      1: 
319:* 
§  3.  Duty  and  liability  of  bailor. 
Duty  to   inform  bailee   as   to   character  of 

horse.     12:  397. 
Implied  warranty  of  horse  or  vehicle.     19: 

'283. 
Liability  to  servants  of  bailee  for  injuries 
caused    by     condition     of 
thing  bailed.     46:  104. 
§  4.  Conversion. 

By  bailte;  necessity  of  demand.     1:  518.* 
Of  coin  by  bailee,  payment  for  in  coin.    29: 
522. 


BAIL  TROVER. 


See  Trover,  35. 


BAKERY. 

A  city  ordinance  having  for  its  object  the 
prevention  of  the  use  of  unwholesome  well- 
water  in  the  making  of  bread  for  public 
distribution  and  consumption  may  validly 
require,  as  a  means  to  that  end,  the  filling 
up  of  wells  on  premises  where  such  bread 
is  made.  State  v.  Schlemmer,  42  La.  Ann. 
1166,  8  So.   307,  10:  135 

♦  *» 


BAKING   POWDER. 


Requiring    Label    for,    see    Constitutional 

Law,  471. 
Containing  Alum,  Statute  Prohibiting  Sale 
of,  see  Constitutional  Law,  1074. 


BALLOON   ASCENSION. 
Injury  to  Spectator  at,  see  Exhibition,  3-6. 


BALLOT    BOX. 

Taking  Before  Grand   Jury,  see  Elections, 
276. 

♦-•-♦ 

BALLOT    MACHINES. 

See  Elections,  192-194. 


BALLOTS. 

Burden  of  Proof  as  to  Genuineness  of,  see 

Evidence,  214. 
Presumption  as  to,  see  Evidence,  614,  615, 

617. 
As  Best  Evidence,  see  Evidence,  779-781. 
Admissibility    in    Evidence,    see    Evidence, 

1020,  1021. 
Proof  as  to  Care  of,  see  Evidence,  2313. 
Vote  by,   at   School   Meeting,   see   Schools, 

72,  73. 
See  also  Elections,  II.  b. 


BALL  PLAYING. 


Contract  with  Ball  Player,  see  Contracts, 
361-363. 

Custom  as  to  Discharging  Player,  see  Cus- 
tom, 20. 

Injunction  against  Breach  of  Contract,  see 
Injunction,  36,  85. 

On  Sunday,  see  Constitutional  Law,  538, 
539,  l'095c;  Indictment,  etc.,  77;  Stat- 
utes, 57  J  Sunday,  7. 


BANC. 

Removal   of  Case   from   Division   to   Court 
in  Banc,  see  Appeal  and  Eirror,  1264. 


BANK  BOOKS. 


Admissibility  of,  in  Evidence,  see  Evidence, 

963,  964,  967,  968. 
Oral  Evidence  as  to,  «ee  Evidence,  1130. 
See  also  Banks,  35a,  360,  369-379a. 


BANK   CLERK. 
Liability  on  Bond  of,  see  Bonds,  44,  45. 


BANK   EXAMINER. 


Authority  of,  see  Banks,  53,  54. 
Demand  on,  for  Payment  of  Note,  see  Bills 
and  Notes,   167. 


BANKRUPTCY,  I. 


197 


BANKRUPTCY, 

I.  In    General, 
n.  Property  Vesting  in,  and  Rights  of,  As- 
signee or  Trustee. 

III.  Claims  against  Estate. 

IV.  Discharge. 

V.  Editorial   Notes. 

Time   of   Taking   Appeal,    see   Appeal   and 

Error,  144. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

328. 
As  to  Insolvency,  see  Insolvency. 


I.  In  General. 

1.  A  court  in  which  a  person  has  been  ad- 
judged bankrupt  has  power  to  proceed  sum- 
marily to  compel  the  bankrupt  to  sign  a 
transfer  of  property  to  which 'the  trustee 
in  bankruptcy  is  entitled.  Fisher  v.  Cush- 
man,  43  C.  C.  A.  381,  103  Fed.  860,       51 :  292 

2.  The  fact  that  an  unauthorized  appeal, 
which  must  be  dismissed,  is  taken  in  a 
bankruptcy  case  in  which  a  petition  is  also 
filed  to  revise  the  proceedings  of  the  lower 
court,  will  not  defeat  the  right  to  have  the 
case  determined  on  the  petition.  Id. 

3.  An  election  made  by  an  assignee  in 
bankruptcy  to  abandon  a  claim,  an  action 
on  which  by  him  is  barred  by  U.  S.  Rev. 
Stat.  §  5057,  and  his  consent  to  suit  there- 
on by  the  bankrupt  for  his  own  benefit, 
will  not  empower  the  bankrupt  to  maintain 
such  suit.  Kenyon  v.  Wrisley,  147  Mass. 
476,  18  N.  E.  227,  1:  348 
Effect  of  bankruptcy  acts  on  state  insol- 
vency laws  and  proceedings. 

For  Editorial  Notes,  see  infra,  V.  §  5. 

4.  The  enactment  of  the  Federal  bank- 
ruptcy 'law  of  July  1,  1898,  did  not  suspend 
the  right  of  a  state  court  to  appoint  a  re- 
ceiver for  an  insolvent  corporation  under 
state  laws,  when  it  had  not  been  adjudged 
a  bankrupt  under  the  law  of  Congress. 
State  ex  rel.  Strohl  v.  King  County  Super. 
Ct.  20  Wash.  545,  56  Pac.  35,  45:  177 

5.  An  action  by  a  trustee  in  insolvency 
under  Conn.  Gen.  Stat.  chap.  52,  which  is 
in  the  fullest  sense  an  insolvency  law,  to 
set  aside  a  fraudulent  conveyance  of  goods 
by  the  insolvent,  since  the  Federal  bank- 
rupt act  of  1898  took  effect,  cannot  be  main- 
tained, although  the  insolvent  has  not  been 
declared  a  bankrupt;  since  the  title  of  the 
trustee  under  the  state  insolvency  law  is 
not  merely  voidable  by  proceedings  in 
bankruptcy,  but  is  absolutely  void. 
Ketchara  v.  McNamara,  72  Conn.  709,  46 
Atl.  140,  50:  641 
What  is  an  act  of  bankruptcy. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

6-7  Permitting  a  mortgagee  to  take  pos- 
session of  mortgaged  chattels  after  the 
mortgagor  has  become  insolvent,  under  an 
unrecorded  mortgage  which  had  been  in  ex- 
istence a  long  time,  is  an  act  of  bankruptcy 
under  the  act  of  Congress  of  1898,  and  the 
preference  thereby  secured  will  be  defeated 
by  the  institution  of  bankruptcy  proceed- 
ings  within   four   months   after   that   time. 


Tatman  v.  Humphrey,  184  Mass.  361,  68  N. 
E.  844,  63:  738 

8.  A  transfer  of  property  forbidden  by 
the  bankruptcy  act  is  not  effected  by  the 
appropriation  by  a  bank  of  the  balance  of 
the  bankrupt's  deposit  account  in  payment 
of  his  indebtedness  to  it  after  knowledge  of 
the  bankruptcy.  Re  George  M.  Hill  Co.  64 
C.  C.  A.  561,   130  Fed.  315,  66:  68 

9.  The  payment  of  money  by  an  insol- 
vent to  an  unsecured  creditor,  in  the  ordin- 
ary course  of  business,  is  a  transfer  of 
property  within  the  meaning  of  the  bank- 
ruptcy act  of  1898,  §  60a,  providing  that  a 
person  shall  be  deemed  to  have  given  a 
preference,  if,  being  insolvent,  he  makes  a 
transfer  of  any  of  his  property  the  effect 
of  which  will  be  to  enable  any  one  of  his 
creditors  to  obtain  a  greater  percentage 
of  his  debt  than  any  other  of  such  creditors 
of  the  same  class.  Re  Fixen,  42  C.  C.  A. 
354,  102  Fed.  295.  50:  605 
Who  may  be  adjudged  bankrupt. 

To  what  Court  Decision  Appealable,  see  Ap- 
peal and  Error,  61. 

10.  Keeping  a  hotel  is  not  trading  or  a 
mercantile  pursuit  within  the  meaning  of 
a  statute  permitting  the  institution  of  in- 
voluntary bankruptcy  proceedings  against 
corporations  principally  engaged  in  trading 
or  such  pursuit.  United  States  Hotel  Co. 
V.  Niles,  67  C.  C.  A.  153,  134  Fed.  225, 

68:  588 

11.  Since  the  national  bankruptcy  law 
contains  no  provision  for  involuntary  pro- 
ceedings against  persons  engaged  chiefly 
in  the  tillage  of  the  soil,  it  does  not  super- 
sede the  provision  of  the  state  law  author- 
izing such  proceedings.  Old  Town  Bank  v. 
McCormick,  96  Md.  341,  53  Atl.  934,    60:  577 

12.  The  building,  sale,  and  repairing  of 
vessels  employed  in  commerce  is  within  the 
provisions  of  a  statute  permitting  bank- 
ruptcy proceedings  to  be  instituted  against 
corporations  engaged  principally  in  manu- 
facturing and  mercantile  pursuits.  Colum- 
bia Ironworks  v.  National  Lead  Co.  62  C. 
C.    A.    99,    127    Fed.   99,  64:  645 

13.  The  obligation  of  a  married  woman, 
not  a  free  trader,  to  pay  for  goods  which 
form  part  of  a  stock  in  trade  with  which 
she  is  carrying  on  business,  which  may,  in 
equity,  be  enforced  against  her  separate  es- 
tate, is  a  "debt"  within  the  meaning  of  the 
clause  of  the  bankruptcy  act  relating  to 
involuntary  bankruptcy  proceedings.  Mac- 
donald  v.  Tefft-Weller  Co.  63  C.  C.  A.  381, 
128  Fed.  381,  63:  106 
Discharge  of  prior  liens  by'  commencement 

of  proceeding. 
Se<^  also  supra.  6;   infra,  50a. 

14-15.  An  attachment  lien  upon  property 
of  a  bankrupt  which  is  exempt  and  over 
which  the  bankruptcy  court  has  disclaimed 
jurisdiction  is  not  included  in  §  67f  of  the 
bankruptcy  act,  providing  that  liens  of  at- 
tachments levied  within  four  months  prior 
to  the  petition  in  bankruptcy  shall  be  null 
and  void,  and  that  the  property  covered 
thereby  shall  pass  to  the  trustee  as  part  of 
the   estate   of   the   bankrupt.     Powers   Dry 


198 


BANKRUPTCY,  II..  III. 


Goods  Co.   V.   Nelson.    10  N.  D.  580,   88  N. 
\V.  703,  58:  770 

Sufficiency  of  schedule  of  debt. 

16.  A  debt  is  properly  scheduled  in  bank- 
ruptcy proceedings,  so  as  to  give  notice  to 
the  creditor  or  his  assignor,  where  in  the 
schedule  the  name  of  the  original  creditor 
and  the  nature  and  the  amount  of  the  debt 
are  correctly  stated.  I^oomis  v.  Wallblom. 
91  Minn.  392,  102  N.  W.  1114,  69:  771 
Exemptions. 

17.  The  jurisdiction  of  a  court  of  bank- 
ruptcy over  exempt  property  of  the  bank- 
rupt is  limited  to  determining  whether  or 
not  it  is  exempt,  and  the  title  thereto  re- 
mains'in  the  bankrupt;  and  when  set  apart 
as  exempt  by  the  bankruptcy  court  it  is 
subject  to  the  jurisdiction  of  the  state,  and 
not  of  the  Federal,  courts.  Powers  Dry 
Goods  Co  V.  Nelson,  10  N.  D.  580,  88  N.  W. 
703.  58:  770 

18.  The  voluntary  conveyance  by  an  in- 
solvent fo^  the  use  of  his  wife,  without  ac- 
tual fraud,  of  all  his  real  estate,  the  value 
of  which  is  not  greater  than  is  subject  by 
law  to  a  homestead  exemption  during  the 
life  of  himself  and  wife  and  the  minority 
of  his  children,  will  not  deprive  him  of  the 
right  to  have  the  homestead  set  off  to  him 
in  a  bankruptcy  proceeding,  in  case  he  ob- 
tains a  reconveyance  after  the  adjudication 
of  his  bankruptcy,  and  includes  the  land  in 
liis  schedule  of  property.  Re  Tollett.  46  C. 
C.  A.  11,  106  Fed.  866,"  54:  222 
Effect  cf  adjudication  in  bankruptcy. 

19.  An  adjudication  of  bankruptcy  ab- 
solves the  bankrupt  from  no  agreement,  ter- 
minates no  contract,  and  discharges  no  lia- 
bility.   Watson  v.  Merrill,  136  Fed.  359. 

69:719J 

20.  An  adjudication  of  bankruptcy  in  a 
case  in  which  there  was  no  rent  due  at  the 
time  of  the  filing  of  the  petition  in  bank- 
iui)tcy  does  not  constitute  a  breach  at  that 
time  of  the  covenants  of  the  bankrupt  in  ' 
Jiis   lease  to  pav  rents  accruing  thereafter. 

Id 


II.     Property    Vesting    in,    and    Rights    of, 
Assignee  or  Trustee. 

For  Editorial  Notes,  see  infra,  V.  §  1.  i 

21.  A    bankruptcy    trustee    has    sufficient  ' 
interest  to.be  entitled  to  contest  the  claim! 
of  the  bankrupt's  landlord  to  a  lien  on  the 
assets  for  rent.     Atkins  v.  Wilcox,  44  C.  C.  ' 
A.  626.  105  Fed.  595.  .53:  118 

22.  A  trustee  in  bankruptcy  has  the  op- 
tion to  assume  or  to  renounce  the  leases 
and  other  executory  contracts  of  the  bank- 
rupt, as  he  may  deem  for  the  best  inter- 
est of  the  estate.  Watson  v.  Merrill,  130 
Fed.  359,  .       69:  719 

23.  A  trustee  in  bankruptcy  is  entitled  to 
maintain  an  action  to  set  aside  the  convey- 
ance alleged  to  l)e  fraudulent  as  to  a  judg- 
ment creditor  where  the  estate  of  the  judg- 
ment debtor  is  in  the  bankrupt  court,  and 
the  claim  of  the  creditor  has  been  filed. 
Sehmitt  v.  Dahl,  88  Minn.  506,  93  N.  W. 
C65,  67:  590 


Property  vesting  in  trustee. 

24.  An  assignment  in  bankruptcy  prior 
to  the  act  of  Congress  of  .lune  5,  1882,  re- 
establishing 'the  Court  of  Commissioners 
of  Alabama  Claims,  does  not  cover  a  claim 
allowed  by  such  commissioners  for  war 
premiums  paid  by  the  bankrupt  in  1863  on 
vessels  insureu  against  confederate  cruis- 
ers; and  where  the  assignee  prosecuted  and 
collected  such  claim,  he  holds  the  proceeds 
in  trust  for  the  bankrupt.  Kingsbury  v. 
Mattocks,  81  Me.  310,  17  Atl.  126,         3:  460 

25.  A  liquor  license  which  is  by  law 
transferable  to  any  person  who  is  satisfac- 
tory to  a  board  of  police  commissioners, 
though  it  may  be  destroyed  without  com- 
pensation by  subsequent  legislation,  is 
"property"  within  the  meaning  of  the 
bankrupt  act,  §  70  (30  Stat,  at  L.  565, 
566),  which  provides  that  a  bauKrupt  must 
transfer  "property  which,  prior  to  the  pe- 
tition, he  could  by  any  means  have  trans- 
ferred." Fisher  v.  Cushman.  43  C.  C.  A. 
381,  103  Fed.  860,  51:  292 

26.  A  seat  in  a  stock  exchange,  owned  by 
one  who  has  no  unsettled  contracts  with, 
or  claims  against  him  in  favor  of,  other 
members,  under  which  circumstances  the 
rules  of  the  exchange  permit  a  sale  of  the 
seat,  is  within  the  provision  of  the  bank- 
ruptcy act  that  the  trustee  shall  be  vested, 
by  operation  of  law,  with  the  bankrupt's 
title  to  all  property  which,  prior  to  the  fil- 
ing of  the  petition,  he  could  bj-  any  means 
have  transferred.  Re  Page,  46  C.  C"  A.  160, 
107    Fed.   89.  59:  94 

27.  A  policy  of  insurance  upon  the  life  of 
a  banknipt.  though  payable  to  his  legal  rep- 
resentatives, does  not  vest  in  the  trustee  as 
assets  of  the  bankrupt's  estate,  under  the 
bankrupt  act  of  1898,  §  70a,  if  the  policy 
has  no  cash  surrender  value;  and  a  trans- 
fer of  such  a  policy  by  a  bankrupt  to  his 
wife,  within  four  months  of  the  filing  of 
his  petition  in  bankruptcy,  will  not  be  set 
aside  as  in  fraud  of  creditors.  Morris  v. 
Dodd,  110  Ga.  606,  36  S.  E.  83,  50:  33 

28.  A  life  insurance  policy  of  a  bankrupt, 
which  has  a  cash  surrender  value,  passes  to 
his  trustee  in  bankruptcy  as  assets  under 
the  bank<-upt  act  of  1898.  §  70,  unless  its 
cash  surrender  value  is  paid  over  or  secured 
to  the  trustee,  although  by,  the  laws  of  the 
state  in  which  the  bankrupt  resides  such 
{K)licies  are  exempt  from  claims  of  credi- 
tors, and  the  bankrupt  act,  §  6,  provides  in 
general  that  the  same  exemptions  shall  ex- 
ist under  that  act  as  exist  under  state 
laws,  since  the  specific  provisions  of  §  70, 
providing  that  such  a  policy  shall  pass 
to  the  trustee  unless  its  cash  surrender 
value  is  paid  over,  constitute  a  limitation 
of  the  more  general  provisions  of  §  6. 
Re  Scheld,  44  C.  C.  A.  233,  104  Fed.  870. 

52:  188 


III.  Claims  against  Estate. 

Proper    Mode    of    Reviewing   Rejection,   sett 

Appeal  and  Error,  60. 
See  also  supra,  21. 


BANKRUPTCY-.  III. 


199 


29.  A  receiver  appointed  by  the  court 
to  enforce  payment  of  the  statiitoiy  liabil- 
ity of  stockholders  of  an  insolvent  corpora- 
tion to  contribute  towards  payment  of  its 
debts  is  a  duly  authorized  agent  of  its 
creditors,  within  the  meaning  of  the  bank- 
ruptcy act,  so  as  to  be  entitled  to  prove 
the  claim  against  the  estate  of  an  insol- 
vent stockholder.  Dight  v.  Chapman,  44 
Or.   265,   75   Pac.    585.  65:  793 

30.  A  petition  for  bankruptcy  filed  by  a 
tenant  at  a  time  when  there  is  no  default 
in  payment  of  rent  notes  does  not  mature 
the  notes  for  the  remainder  of  the  term, 
so  as  to  give  the  landlord  a  lien  on  the 
bankrupt's  assets  for  their  amount,  under 
a  provision  in  the  contract  that  upon  failure 
to  pay  rent  punctually  the  rent  for  the  un- 
•expired  term  shall  at  once  become  due  and 
exigible.  Atkins  v.  Wilcox,  44  C.  C.  A.  626, 
105  Fed.  595,  ^^  53:  118 
What  claims  provable. 

For  Editorial  Notes,  see  infra,  V.  §  8. 

31.  There  is  no  liability  on  a  covenant  of 
warranty  which  was  provable  as  a  "con- 
tingent debt"  or  "contingent  liability"  un- 
der the  bankrupt  act  of  1867  (U.  S.  Rev. 
Stat.  §  5068),  until  there  was  a  hostile 
assertion  of  the  paramount  title.  Wight 
V.    Gottschalk     (Tenn.)     48    S.    W.     140, 

43:  189 

32.  Rents  which  a  bankrupt  had  agreed 
to  pay  at  times  subsequent  to  the  filing  of 
the  petition  in  bankruptcy  do  not  consti- 
tute a  provable  claim  upder  the  bankrupt- 
cy law  of  1898,  because  they  are  not  a 
''fixed  liability  .  .  .  absolutely  owing 
at  the  time  of  the  filing  of  the  petition 
against  him,"  and  because  they  do  not  con- 
stitute an  existing  demand.  Watson  v. 
Merrill,  136  Fed.  359,  69:  719 

33.  Damages  for  the  breach  of  a  contract 
of  the  bankrupt  to  pay  rents  at  times  sub- 
sequent to  the  filing  of  the  petition  in 
bankruptcy  are  not  a  fixed  liability,  abso- 
lutely owing,  which  may  be  proved  in 
bankruptcv  proceedings  under  the  law  of 
1898.  "  Id. 

34.  Under  a  statute  requiring  debts  to 
be  fixed  liabilities  absolutely  owing  at  the 
time  of  filing  the  petition  to  be  provable 
in  bankruptcy,  claims  for  unaccrued  rent 
are  not  provable,  where,  by  the  terms  of 
the  lease,  the  rent  is  to  abate  in  case  of 
destruction  of  the  property  or  the  lessee 
is  deprived  of  its  use.  Atkins  v.  Wilcox. 
44  C.  C.  A.  626,  105  Fed.  595,  53:  118 

35.  Liability  upon  a  penal  bond  condi- 
tioned for  the  payment  of  rents  and  an- 
nuities to  another  during  life  is  within 
the  provisions  of  §  63a  of  the  bankruptcy 
act.  of  1898,  allowing  the  proving  against 
the  bankrupt's  estate  of  a  fixed  liability, 
evidenced  by  instrument  in  writing,  abso- 
lutely owing  at  the  time  of  filing  the  pe- 
tition, whether  then  payable  or  not;  but 
the  claim  proved  must  be  limited  to  the 
penalty  of  the  bond,  where  the  computed 
value  of  the  expectancy  exceeds  that 
amount.  Cobb  v.  Overman,  48  C.  C.  A. 
223,   109   Fed.   65,  54:  369 

36.  A  decree  for  alimony  being  a  penalty 


imposed  for  a  failure  to  perform  a  duty, 
and  always  subject  to  modification  by  the 
court  according  to  the  varying  circum- 
stances of  the  parties,  the  obligation  im- 
posed thereby  is  not  a  provable  debt  in 
bankruptcy  proceedings.  Barclav  v.  Bar- 
clay, 184  in.  375,  56  N:  E.  636,    '      51:  351 

37.  A  judgment  determining  the  amount 
to  be  contributed  by  the  stockholders  of 
an  insolvent  corporation  for  the  payment 
of  its  debts  under  constitutional  and  stat- 
utoi'y  provisions  making  stockholders  lia- 
ble for  debts  to  the  amount  of  the  par 
valufe  of  the  stock  held  by  them  renders 
the  amount  due  from  each  stockholder  a 
debt  provable  in  bankruptcy  proceedings 
against  him,  so  as  to  be  canceled  by  a 
discharge,  although  he  did  not  appear  in 
the  proceeding  against  the  corporation, 
where  the  judgment  against  the  corpora- 
tion is  binding  upon  him.     Dight  v.  Chap- 

■ixn.  44  Or.  265,  75  Pac.  585,  65:793 

Set-offs. 
For  Eklitorial  Notes,  see  infra,  V.  §  9. 

38.  A  bankrupt's  debtor  who  in  the  re- 
lation of  a  surety  has  paid  claims  against 
the  bankrupt  which  have  befen  disallowed 
in  the  bankruptcy  proceedings  because  the 
creditor  had  accepted  a  preference  contrary 
to  §  57g  of  the  bankruptcy  act  cannot  on 
the  theory  of  subrogation,  set  them  off 
under  §  68b  of  that  act,  allowing  set-off 
only  of  claims  provable  against  the  estate, 
since  he  takes  them  subject  to  the  disabil- 
ities attaching  to  them  in  the  creditor's 
hands.  Morgan  v.  Wordell,  178  ISIass.  350, 
59  N.    E.    10,37,  55:  33 

39.  A  debtor  of  a  bankrupt,  who,  as 
quasi  surety,  has  paid  claims  against  the 
bankrupt,  may,  under  §  68  of  the  bank- 
ruptcy act,  set  them  off  as  a  "mutual  cred- 
it," in  a  pipceeding  against  him  to  enforce 
the  debt  although  they  could  not  have 
been  enforced  by  the  original  creditor, 
since  the  provision  of  §  68b,  forbidding 
set-off  of  claims  "not  proyable  against  the 
estate,"  refers  not  to  claims  which  could 
not  be  proved  in  the  bankruptcy  proceed- 
ing, but  to  those  not  provable  in  their  na- 
ture,— that  is,  not  liquidated  when  the  set- 
off is  claimed. 

40.  The  amount  recoverable  from  a  pre- 
ferred creditor,  against  which,  under  5  60c 
of  the  bankruptcy  act  of  1898,  he  is  enti- 
tled to  set  off  further  credit  extended  to  the 
bankrupt  in  good  faith,  is  not  limited  to 
the  amount  of  preference  knowingly  re- 
ceived, which  may  be  recovered  by  the 
trustee  inider  §  60b,  but  includes  pay- 
ments innocently  received,  which  he  is  en- 
titled to  surrender  under  §  57g,  as  a  con- 
dition of  proving  his  claim  in  the  bank^ 
ruptcy  proceedings.  Peterson  v.  Nash 
Bros.  50  C.  C.  A.  260,  112  Fed,  311,  55:  344 
Surrender  of  preferences. 

See  also  supra,  40. 

41.  A  creditor  who  has  received  an  im- 
lawful  preference  by  payment  from  an  in- 
solvent within  four  months  before  his  ad- 
judication in  bankruptcv  cannot  be  allowed 
to  claim  for  the  balance  of  his  account 
without   surrendering  his   preference   as  re- 


200 


BANKRUPTCY.  IV 


quired  by  the  bankruptcy  act  of  1898,  § 
57g,  although  he  received  the  payment  in 
the  regular  course  of  business,  without 
knowledge  of  the  debtor's  insolvency,  and 
continued  to  sell  him  goods.  Re  Fixen,  42 
C.  C.  A.  354,  102  Fed.  295,  50:  605 

42.  That  payments  received  by  a  credi- 
tor within  four  months  of  the  bankruptcy 
of  his  debtor  were  not  on  account  of  any 
merchandise  for  the  price  of  which  he  «eks 
to  make  a  claim  in  the  bankruptcy  pro- 
ceedings will  not  take  him  out  of  the  oper- 
ation of  57g  of  the  bankruptcy  act  of  1898, 
requiring  surrender  of  preferences  aS  a 
condition  of  sharing  in  the  assets.  Re 
Dickson,  49  C.  C.  A.  574,  111  Fed.  726, 

55:  349 

43.  Payments  on  an  account  current  will 
not  be  required  to  be  surrendered,  under  § 
57g  of  the  bankruptcy  act  of  1898,  requir- 
ing surrender  of  preferences  as  a  condition 
of  proof  of  claims,  in  order  to  entitle  the 
creditor  to  prove  his  claim,  where  they 
were  received  without  any  intention  of  ac- 
quiring an  unjust  preference,  and  the  cred- 
its have  been  increased  during  the  period 
when  they  were  made,  so  th'at  the  bank- 
rupt's estate  has  been  increased,  rather 
than  diminished.  Id. 

44.  Payment  to  a  bank,  by  an  insolvent 
within  four  months  of  the  ir^stitution  of 
bankruptcy  proceedings  against  nim,  of 
notes  given  to  and  discounted  for  other  per- 
sons l)y  the  bank,  constitutes  preferential 
payments  which  the  bank  must  return  to 
be' entitled  to  share  in  the  bankrupt's  es- 
tate, although  the  indebtedness  was  not 
charged  by  the  bank  against  the  maker 
of  the  notes,  but  was  carried  in  the  ac- 
counts of  the  payees.  Re  George  M.  Hill 
Co.  64  C.  C.  A.  oGl,   130  Fed.  315,       06:  68 

45.  In  determining  whether  or  not  the 
dealings  between  a  bank  and  an  insol- 
vent customer  have  decreased  the  estate 
within  four  months  prior  to  the  institution 
of  bankruptcy  proceedings,  so  as  to  re- 
quire the  bank  to  return  the  amount  of 
such  decrease  in  order  to  be  entitled  to 
prove  claims  against  the  estate,  all  the 
transactions  must  be  considered,  including 
payments  by  the  insolvent  upon  notes  giv- 
en to  and  discoimted  for  other  persons,  al- 
though such  notes  do  not  appear  in  his  ac- 
count on  the  bank's  books.  Id. 

46.  The  increase  of  contingent  liability  of 
an  insolvent  person  to  a  bank  by  reason 
of  tlic  discount  for  him  of  notes  executed 
by  f)thcr  persons  and  indorsed  by  him  can- 
not be  taken  into  consideration  in  deter- 
niining  whether  or  not  the  result  of  trans- 
actions between  him  and  the  bank  within 
four  months  of  the  institution  of  the  bank- 
ruptcy ])rocpedings  has  been  to  decrease  the 
estate,  so  as  to  reciuire  the  bank  to  return 
tiie  iiiiiuiuit  of  the  decrease  in  order  to  be 
IKTinittod  to  file  claims  against  the  estate. 

III. 

47.  Only  the  amount  of  direct  loss  to  t!ie 
estate  of  an  insolvent  during  the  period  of 
four  months  ])rior  to  the  institution  of 
l>ankruptcy  proceedings,  because  of  traiis- 
iictions  with  a  liank  consisting  of  payments 


and  loans,  must  be  returned  by  the  bank 
in  order  to  be  permitted  to  file  claims 
against  the  estate.  Id. 


rV.  Discharge. 

Estoppel  as  to,  see  Estoppel,  257. 
Discharge  in  Insolvency,  see  Insolvency,  V. 
Of    Stockholder    in    Insolvent    Corporation, 

see  Notice,  73. 
Plea  of,  see  Pleading,  496. 
Collateral  Attack  on  Judgment  to  Prevent, 

see  Judgment,   148. 
For  Editorial  Notes,  see  infra,  V.  §§  10,  11. 

48.  A  statute  permitting  one  who  has 
obtained  a  discharge  in  bankruptcy  to  ap- 
ply to  the  courts  in  which  judgments  were 
rendered  against  him  for  an  order  direct- 
ing their  cancelation  has  no  application  to 
judgments  from  which  the  bankruptcy  act 
does  not  release  the  debtor.  Colwell  v. 
^J'inker,  169  N.  Y.  531,  62  N.  E.  668, 

58:  765 

49.  The  discharge  of  a  judgment  debtor 
in  bankruptcy,  although  the  judgment  has 
ceased  to  be  a  lien,  does  not  render  it  un- 
availing for  the  purpose  of  redeeming  the 
debtor's  lands  from  sale  under  a  prior 
judgment.  Pease  v.  Ritchie,  132  111.  638, 
24  N.  E.  433,  8:  566 

50.  A  discharge  in  bankruptcy  of  one 
who  has  assigned  wages  to  be  earned  ir» 
the  future  does  not  affect  the  right  to  en- 
force the  assignment.  Mallin  v.  Wenham. 
209  111.  252,  70  N.  E.  564,  65:  602 

50a.  The  lien  of  an  attachment  on  per- 
sonal property  of  a  bankrupt  is  not  de- 
stroyed by  a  mere  discharge  of  the  debt  se- 
cured by  the  lien,  through  a  discharge  un- 
der the  present  national  bankruptcy  act; 
and,  unless  such  lien  is  one  which  is  itself 
declared  void  by  said  act,  it  may  be  en- 
forced, through  a  modified  form  of  judg- 
ment, as  against  the  property  on  which  the 
lien  exists.  Powers  Dry  Goods  Co.  v.  Nel- 
son, 10  N.  D.  580,  88  N.  W.  703,  58:  770 
Of  one  member  of  firm. 
For  j^ditorial  Notes,  see  infra,  V.  §  11. 

51.  A  full  discharge  of  the  individual  lia- 
bility of  one  partner  on  a  firm  debt   may 
be  had  in   bankruptcy  proceedings  concern 
ing    that    partner    only.      Loomis    v.    Wall- 
blom,   91    Minn.    392,    102   N.   W.    1114, 

69:  771 
.52.  A  discharge  of  individual  liability  on 
a  firm  debt  in  bankruptcy  proceedings  con- 
cerning one  partner  only  is  a  good  defense 
in  an  action  brought  against  both  partners 
to  renew  a  judgment  on  a  partnership  debt, 
the  process  in  which  action  was  served  only 
on  the  ])artner  who  had  been  duly  dis- 
charged in  bankruptcy  proceedings,  where 
it  appears  that,  many  years  before,  the 
parties  dissolved  the  firm,  and  the  firm,  to 
the  actual  knowledge  of  the  judgment  cred- 
itor, made  an  assignment  of  all  unexempt 
firm  and  individual  property  imder  a  state 
insolvency  law,  and  that  the  claim  wan 
properly  scheduled,  and  notice  thereof  duly 
given ;  and  it  does  not  aflirmatively  appear 
that  any   firm  assets  now  exist.  Id. 


BANKRUPTCY,  V. 


301 


Effect  on  surety's  liability  of  discharge  of 
principal. 

53.  A  surety  on  a  capias  bond  in  a  suit 
to  hold  the  principal  liable  for  selling  and 
converting  the  proceeds  of  property  sold 
to  him  on  condition  cannot  be  held  after 
the  principal  has  been  discharged  in  bank- 
ruptcy. Brvant  v.  Kinyon,  127  Michr  152, 
8(i  N."  W.  531,  53:  801 
What  debts  released  by  discharge. 

See  also  supra,  37. 

54.  A  debt  arising  from  the  sale  and  col- 
lection of  the  proceeds  of  property  condi- 
tionally sold  to  the  vendor,  with  reten- 
tion of  title  until  the  payments  were  made 
as  required  by  the  contract,  is  not  within 
the  provision  of  the  bankruptcy  act  ex- 
cepting from  the  operation  of  the  discharge 
debts  created  by  fraud,  etc.,  while  acting 
as  an  officer  "or  in  any  fiduciary  capacity;" 
but  the  disch-irge  will  reach  A  under  liie 
other  provisions  of  the  act.  L'-yant  v. 
Kinyon.   12/   Mich.   152,  86  N.   W.   .031, 

53:  801 

55.  A  judgment  for  the  publico  f  ion  of  a 
libel  is  within  the  clause  of  the  bankruptcy 
act  excepting  from  release  judgments  for 
wilful  and  malicious  injuries  to  the  person 
or  property  of  another.  McDonald  v. 
Brown,  23  R.  I.  546,  51  Atl.  213,        OS:  7C3 

56.  A  discharge  in  bankruptcy  includes 
liability  under  a  judgment  for  future  in- 
stalments of  alimony,  where  the  btate  law 
makes  the  husband  an  ordinary  debtor,  un- 
der such  judgment,  for  a  fixed  sum  of  mon- 
ey for  which  his  estate  is  liable,  in  the 
same  manner  that  it  would  be  liablo  for  a 
debt  due  upon  any  contract.  Fite  v.  Fite, 
no  Ky.  197,  61  S.  W.  26,  ^  .53;  2o5 

57.  No  fiduciary  relation  exists  between 
persons  negotiating  for  the  sale  and  pur- 
chase of  goods,  within  the  meaning  of  the 
section  of  the  bankruptcy  act  of  1898,  which 
prevents  a  release  from  affecting  del)t3 
created  by  fraud"  while  acting  in  any  fidu- 
ciary capacity,  so  as  to  prevent  the  release 
from  being  operative  in  case  the  goods  were 
obtained  by  the  purchaser  through  fraud 
and  false  representations.  Goodman  v. 
Herman,  172  Mo.  344,  72  S.  W.  546,   60:  885 

58.  An  affidavit  for  attachment  in  an  ac- 
tion upon  an  account  for  goods  sold  and 
delivered  cannot  be  looked  to  in  determin- 
ing whether  or  not  the  action  was  for  fraud, 
so  that  a  discharge  in  bankruptcy  will  not 
release    liability   on   the   judgment    therein. 

Id. 

59.  A  final  money  judgment  obtained  for 
the  total  amount  due  from  a  putative 
father,  who  in  bastardy  proceedings  was 
required  to  pay  a  monthly  stipend  for  the 
support  of  the  child,  is  a  debt  dischargeable 
by  procedings  under  the  bankruptcy  act 
of  1898.  McKittrick  v.  Cahoon,  89  ]\Iinn. 
383.   95  N.  W.  22.3,  62:  757 

60.  A  judgment  obtained  by  a  wife 
iigainst  another  woman  for  damages  sus- 
tained by  the  wife  by  reason  of  the  alien- 
ation of  the  affections  of  her  husband  is  not 
released  by  the  discharge  of  the  judgment 
debtor  under  proceedings  in  bankruptcy, 
where  such  alienation  has  been  accomplished 


by  schemes  and  devices  of  the  judgment 
debtor,  and  has  resulted  in  the  loss  of  sup- 
port and  impairment  of  health  to  the  wife. 
Leicester  v.  Hoadley,  66  Kan.  172,  71  Pac. 
318,  65:  523 

61.  A  judgment  awarding  damages  for 
criminal  conversation  with  plaintiff's  wife 
is  within  the  exception  in  §  17  of  the  bank- 
ruptc}'  act,  providing  that  a  discharge  shall 
not  release  judgments  for  wilful  and  ma- 
licious injuries  to  the  person  or  property 
of  another.  Colwell  v.  Tinker,  169  N.  Y. 
531,   62   N.  E.   668,  58:  765 


V.  Editorial  Notes. 

§   I.  Generally. 

Effect  of  husband's  bankruptcy  upon  wife's 

right  of  dower.     18:  77. 
Respective   rights   of   receiver   and   assignee 

in  bankruptcy.    20:  391. 
First  and  last  days  in  computing  time  for 

matters  of.     49:  240. 
Allowance  of  attorneys'  fees  in  bankruptcy 

cases.     54:  826. 
§  2.  Jurisdiction. 
Of  bankruptcy   court.      1:  121.* 
Of  state  courts  over  actions  by  or  against 
assignee     in     bankruptev. 
48:  36. 
Question  relating  to  bankruptcy  as  Federal 

question.     62:  535. 
§   3.  Relation   of   bankrupt   law   to   assign- 
ments and  insolvency  proceedings  un- 
der state  laws. 
Provision    of    the    various    bankrupt    laws. 

45:  177. 
An  assignment   for  creditors   as   an   act   of 

bankniptcy.      45:  177. 
Effect  of  bankrupt  law  on  assignments  for 
creditors.     45:  178. 
Cases  under  the  bankrupt  act  of  1841. 

45:  178. 
Cases  under  the  bankrupt  act  of   1867. 
45:  179. 
Where    no    bankrupt    proceedings 

were  instituted.     45:  179. 
Where   bankrupt   proceedings   were 
instituted,  but  the  assign- 
ment   was    not    attacked. 
45:  179. 
Where  the  assignment  was  not  at- 
tacked  in   time   by   bank- 
rupt's  assignee.     45:  180. 
Where     the     assignment     was    at- 
tacked  in   time   by    bank- 
rupt's assignee.     45:  181. 
Effect    on    intervening    judgments 
and    executions.      45:  183. 
Allowances    to    assignee    for    cred- 
itors   where    the    assign- 
ment    was     avoided.     45: 
184. 
Cases  under  bankrupt  act  of  1898.  45: 
185. 
Effect  of  bankrupt  law  on  insolvency   pro- 
ceedings under  state  laws. 
45:  186. 
On  subsequent  proceedings.    45:  186. 
On  pending  proceedings.     45:  187. 


202 


BANKRUPTCY,  V.  (Ed.  Notes  ) 


On  proceedings  after  the  repeal  of  the 

bankrupt  law.     45:  187. 
On   proceedings   for   arrest.     45:  188. 
Proceedings   for   a   receiver   as   affected   by 

bankrupt   law.     45: 190. 
Effect   of   creditor's   bill    or    supplementary 
proceedings      us      against 
bankrupt  proceedings.  45: 
193. 
Effect    of   an    assignment    for   creditors    on 
the      right      to      a      dis- 
charge    in        bankruptcy. 
45:  194. 
§  4.  Foreign  proceedings. 
Effect   of.      1:  121;»   2:  99.* 
Conclusiveness   of   foreign   adjudications   in 

bankruptcy.     20:  673. 
Transfer  of  property  by   foreign   bankrupt 
and        insolvent       assign- 
ments. 23:  33;  65:  353. 
§  5.  Acts  of  bankruptcy. 
Assignment  for  creditors  as  An  act  of  bank- 
ruptcy.    45:  177. 
§  6.  Assets;  transfer  of  property. 
Causes   of   action    for    personal    injuries   as 

assets.     44:  180. 
Transfer   of   trademark    by    bankruptcy    or 
insolvency  assignment. 

46:  541. 
§  7.  Priority;  preferences. 
Effect   of  creditor's   participation   in   fraud- 
ulent  intent   of  debtor  in 
making   transfer   by    way 
of  preference.     31:  647. 
Priority  of  rights  to   fund  as  between  as- 
signees in  bankruptcy  and 
prior    assignees.      66:  760. 
§  8.  Debts  provable. 

What  constitutes  a  fixed  liability  as  evi- 
denced by  a  judgment  or 
an  instrument  in  writing 
absolutely  owing  at  the 
time  of  the  filing  of  the 
petition  in  bankruptcy. 
54:  369. 
Judgments.     54:  369. 

In  general.     54:  369. 
For  alimony.     54:  369. 
Written  instruments.     54:  372. 
In  general.    .54:  372. 
Bonds.     54:  373. 
Notes.     54:  373. 
Leases.     54:  374. 
§  9.  Set-off  in  bankruptcy  cases. 
Debts  or  claims  existing  and  mature  at  the 
time    of    insolvency.      55: 
34. 
In  general.     .55:  34. 
Provability  of  debt.     55:  .36. 
Unliquidated  damages.     .55:  37. 
Breach   of   contract.     55:  37. 
Security  for  particular  dol)t,  or  special 
directions    or    agreements 
as   to  application   or  pay- 
ment of   funds.     55:  38.' 
In   general.    55:  .38. 
Brokers   or   agents.     55:  40. 
Banking  and  commercial  paper.  55: 
40. 
Debtors  and  creditors  in  same  right.    55:  41. 
In  general.     55:  41. 


Joint  or  partnership  debts.  55 :  41. 
Corporations.     55:  44. 
Agents,   factors,   and   brokers.   55: 
44. 
In  general.     55:  44. 
Insurance    brokers.      55:  45.' 
Trustees,  55:  46. 
Executors   and  administrators.   55: 

46. 
Husband  and  wife.     55:  47. 
Assignee  in  bankruptcy.     55:  47. 
Unpaid  shares  of  corporate  stock.     55: 

47. 
Bank   deposits.     55:  48. 

Bankruptcy-  of  bank.     55:  48. 
Bankruptcy  of  depositor.     55:48. 
Other   banking   transactions    and   com- 
mercial paper.     55:  48. 
Insurance  matters.     55:  49. 
Landlord  and  tenant.     55:  50. 
Overpayment    in    composition    proceed- 
ings.   55:  50. 
Debts   created,  or  claims  arising,  after  in- 
solvency.   55:  50. 
In  general.     55:  50. 
Agreement   to   pay   cash   or  by   bill  of 

exchange.     55:  51. 
Debtors   and    creditors    in    same    right. 
55:  5L 
Agents   and   factors.     55:51. 
Executors  and  administrators.  55: 
52. 
Bank  deposits.     55:  52. 

Deposits  by  trustee  in  bankruptcy 
in  bank  which  subsequent- 
ly becomes  bankrupt.  55: 
52. 
Bankruptcy  of  depositor.     55:53. 
Other    banking   transactions    and    com- 
mercial paper.     55:  53. 
Landlord  and  tenant.     55:54. 
Expenses  of,  or  payments  by,  assignees 

for  creditors.     55:  54. 
Payments  by   bankrupt.     55:  54. 
Set-off  of  costs.    55:  55. 
Set-off  after  discharge.     55:  50. 
Immaturity  of  debts  or  claims  at  time  of 
insolvencj'.     55:  .50. 
In  general.     55:  56. 
Uncertainty   or   contingency   of   claims. 

55:  57. 
Breach  of  contract.     55:  58. 
Security  for  particular  debt  or  special 
directions    or    agreements 
as  to  application  or  pay- 
ment  of   funds.     55:58. 
In  general.     55:  58. 
Banking     and     commercial     paper. 
55:  59. 
Debtors    and    creditors    in    same    right. 
55:  60. 
In  general.     55:  60. 
Agents,  factors,  and  brokers.     55: 
60. 
In  general.    55:  60. 
Insurance    brokers.     55:  61. 
Executors   and    administrators.     55:  62. 
Bank  deposits.     55:  62. 

Bankruptcy  of  bank.     55:  62. 
Bankruptcy  of  depositor.     55:  63. 
Other    banking   tran.sactions    and    com- 
mercial paper.     55:  64. 


BANKRUPTCY,  V.  (Ed.   Notes);  BANKS. 


803 


In  general.     55:  64. 
Accommodation  acceptor  or  indors- 
er.    55:  65. 
Insurance    matters.      55:  66. 
Life  insurance.     55:  66. 
Fire  and  marine  insurance.  55:  67. 
Landlord  and  tenant.    55:  67. 
Principal    and    surety.     55:68. 
Annuities.     55:  68. 
Debts   or   claims   assigned.     55:  68. 
In  general.     55:  68. 
Partnership.      55:  69. 
Bank  deposits.    55:  70. 

Bankruptcy    of    bank.      55:  70. 
Bankruptcy    of    depositor.      55:  70. 
Other   banking   transactions    and    com- 
mercial paper.     55:  70. 
Insurance  matters.     55:72. 
"Bankruptcy   of  third  persons.     55:  73. 
Form  of  action.     55:  74. 
Effect  of  proving  claim.     55:  74. 
Extent  of  set-off.     55:  75. 
Right   to   set  off,  against  bankrupt,  claims 
purchased  after  bankrupt- 
cy.    21:280. 
Right    of    creditor    to    set    off    new    credits 
given     after     receiving     a 
preference.      55:  344. 
•§  lo.  Discharge. 

Right  of  one  to  avail  himself  of  discharge 

procured  by  fraud.  25:571. 

Effect  of  assignment  for  creditors  on  right 

to  discharge.     45:  194. 
Eight  of  alleged  fraudulent  grantee  to  set 
up   grantor's   discharge   in 
bankruptcy    as    against    a 
judgment    creditor   of   the 
latter.     67:  599. 
New  promise  after  discharge.     53:  362. 
•§11.  —  Of  partnership  liability  in  individu- 
al proceedings. 
In   general.     69:  772. 

Provability  of  partnership  debts  in  individ- 
ual    proceedings.    69:  772. 
Introductory.    69:  772. 
In   general.     69:  773. 
Exceptions.     69:  775. 

Absence  of  joint  assets  or  solvent 
partners.     69:  775. 
In  general.     69:  775. 
When  partnership  assets  have 
been     assigned    to     bank- 
rupt.    69:  777. 
Fraudulent  abstraction  of  partner- 
ship   funds    by    bankrupt. 
69:  777. 
Right  of  petitioning  joint  creditor 
to  prove.    69:  778. 
Discharge  of  partnership  liability  in  individ- 
ual proceeding.     69:  778. 
Discharge  of  liability  by  reason  of  prov- 
ability of  claim.     69:  778. 
In  general.     69:  778. 
The  English  doctrine.     69:  779. 
Necessity  of  making  firm  or  copartners 
parties.      69:  780. 
Under    bankruptcy    law    of     1867. 
69:  780. 
In   general.    69:  780. 
In     absence     of    joint     assets. 
69:  782. 


Under    bankruptcy    law    of    1898.     69: 
783. 
In  general.    69:  783. 
In  absence  of  joint  assets.  69: 
784. 


BANKS. 

I.  Right    to    Do    Business;    Powers. 
II.  Stockholders. 
m.  Officers  and  Agents. 

a.  Qualification;  Election. 

b.  Authority;  Ratification. 

c.  Liability. 
IV.  Banking. 

a.  Deposits. 

1.  In     General;      Nature     of; 

Liens  on. 

2.  Bank's  Control  over;  Appli- 

cation of. 

3.  Payment  of  Checks;  Forger- 

ies. 
a.  In  General. 
6.  Forgeries. 

(1)  In  General. 

(2)  Altered    Checks. 

(3)  Forged      Indorse- 

ments. 

4.  Certificate  of  Deposit. 

b.  Collections. 

1.  In   General. 

2.  Insolvency. 

c.  Other    Transactions;     Di.scount8, 

etc. 

d.  Clearing  House  Business. 
V.  Insolvency. 

VI.  Savings  Banks. 
VII.  Crimes. 
VIII.  Editorial  Notes. 

Attachment  for  Outstanding  Draft,  see  At- 
tachment, 3. 

Carrier's  Liability  for  Delivery  to  Consignee 
after  Assignment  of  Bill  of  Lading  to, 
see  Carriers,  820. 

Due  Process  of  Law  as  to,  see  Constitution- 
al Law,  680,  681. 

Illegality  of  Contract  by  Defaulting  Of- 
ficer of,  see  Contracts,  405. 

By-laws  of,  see  Corporations,  233. 

Presumption  of  Officer's  Knowledge  of  Fals- 
ity of  Representations,  see  Evidence. 
313. 

Interest  to,  see  Interest,  4. 

Libel  of  Teller,  see  Libel  and  Slander,  59, 
109. 

Libel  by  Bank  Cashier,  see  Libel  and  Slan- 
der, 103. 

Limitation  of  Action  on  Teller's  Bond,  see 
Limitation  of  Actions,  123. 

Notice  to,  see  Notice,  11,  12,  42.  65-70. 

Title  of  Statute  as  to,  see  Statutes,  275. 

Subrogation  of,  see  Subrogation.  26. 

Taxation  of,  see  Constitutional  Law,  1152; 
Statutes,  609;  Taxes. — especially.  5- 
12,  24,  186,  243,  370,  463,  625,  VI.  §§ 
11-15,  and  also  infra,  VIII.  §  2. 

Liability  to,  for  Mistake  in  Telegram,  see 
Telegraphs,  2». 


204  BANKS,  I.,    II. 

Recovery   for   Money   Paid   on  False    Tele- 
gram, see  Telegraphs,  30. 

Usury  in  Transactions  by,  see  Usury,  I.  c. 


I.  Right  to  Do  Business;   Powers. 

Powers  of  Savings  Banks,  see  infra,  345- 
349. 

Presumption  as  to  Incorporation  of,  see  Evi- 
dence, 402-405. 

Title  of  Statute  as  to,  &ee  Statutes,  171. 

Question  for  Jury  as  to,  see  Trial,  175. 

Sefe  also  infra,  293. 

For   Editorial   Notes,   see   infra,  VIII.   §    1. 

1.  Constitutional  provisions  authorizing 
the  organization  and  control  of  banks  of 
circulation  do  not  prohibit  the  enactment 
of  laws  imposing  reasonable  regulations 
upon  banks  of  deposit  and  discount.  Blaker 
V.  Hood,  53  Kan.  499,  36  Pac.  1115, 

24:  854 

2.  Stockholders  of  a  corporation,  who 
are  obligors  on  a  bond  guaranteeing  pay- 
ment of  notes,  bills,  etc.,  discounted  for  the 
corporation  bj'  a  national  bank,  cannot  de- 
fend against  an  action  on  such  bond  on  the 
ground  that  the  paper  was  discounted  after 
the  expiration  of  the  corporate  existence 
of  the  bank,  and  an  extension  thereof  un- 
der the  act  of  Congress  of  July  12,  1882,— 
especially  where  the  paper  discounted  after 
the  extension  was  merely  in  renewal  of 
prior  notes,  and  they  had  failed  to  exercise 
the  privilege  reserved  to  them  in  the  bond, 
of  terminating  at  any  time  their  liability 
for  further  discounts  by  giving  written 
notice  to  that  effect  to  the  bank.  National 
Exch.  Bank  v.  Gay,  57  Conn.  224,  17  Atl. 
.5.55,  "  4:343 

3.  A  banking  corporation  organized  under 
the  laws  of  Nel)raska  has  no  power  to  be- 
come a  stockholder  in  an  insurance  com- 
puiv.  Bank  of  Commerce  v.  Hart,  37  Neb. 
197,"  .55  N.  W.  631,  20:  780 
Right  to  do  business. 

Equal  rrotcction  and  Privileges  as  to, 
see  Constitutional  Law,  510-516. 

Due  Process  of  Law  as  to,  see  Constitution- 
al Law,  6S0. 

What  Constitutes  Banking  Business,  see 
Corporations,  49. 

For  Editorial  Notes,  see  infra,  VIII.  §   1. 

4.  A  legislative  (h^claration  in  an  act.  that 
a  corporation  under  it  shall  not  be  deemed 
a  bank,  or  a  company  having  or  exercising 
banking  powers,  does  not  allect  the  powers 
conferred,  nor  does  it  limit  the  authority 
of  the  corporation;  and.  if  any  section  of 
the  act  in  express  words  confers  banking 
powers,  the  cliarac-ter  of  the  corporation  is 
to  be  (loterniined  tlierebv.  Reed  v.  Peojile 
ex  rel.  Attornev  General,'  125  111.  592,  18  N. 
E.    295,  '  1 :  324 


II.  Stockhoklers. 

Judgment  against  in  Suit  to  Recover  As- 
sessment as  Bar  to  Suit  on  other  As- 
sessment, see  Action  •or  Suit.  79. 


Right  of  Stockholders  in  Proceeds  of  Pol- 
icy, see  Corporations,  471. 

Garnishment  of  Stock,  see  Garnishment,  33. 

Limitation  of  Action  against,  see  Limita- 
tion of  Actions,  102,  103. 

See  also  infra,  310,  349,  380. 

Transfer  of  Stock. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
167. 

Gift  of  Stock,  see  Gift,  35-37,  41,  49. 

See  also  infra,  22,  23,  29. 

5.  The  transferable  quality  of  national 
bank  stock  as  it  is  left  by  the  statutes  of 
the  United  States  cannot  be  limited  or  in- 
terfered with  by  state  legislation.  Doty 
V.  First  Nat.  Bank,  3  N.  D.  9,  53  N.  W. 
77,  17:259 

6.  A  transfer  of  national  bank  stock,  good 
at  common  law,  is  good  as  to  all  parties 
other  than  the  corporation,  its  shareholders, 
and  cre<litors,  under  U.  S.  Rev.  Stat.  §  5139, 
U.  S.  Comp.  Stat.  1901,  p.  3461',  making 
the  stock  transferable  on  the  books  of  the 
association.  Id. 

7.  An  unrecorded  transfer  of  national 
bank  stock  good  at  common  law  makes  the 
rights  of  the  transferee  superior  to  those 
of  a  subsequent  attaching  creditor  of  the 
transferrer  without  notice.  Id. 

8.  A  transfer  on  the  books  of  a  national 
bank  is  not  necessary  to  give  to  a  donee  or 
purchaser  an  equitable  title  to  the  shares. 
Leyson  v.  Davis,  17  Mont.  220,  42  Pac.  775, 

31 :  429 
[Writ  of  Error  Dismissed  bv  the  Supreme 
Court  of  the  United  States  in  170  U.  S.  36, 
42  L.  ed.  939.] 

9.  Statutory  provisions  as  to  the  trans- 
fer of  bank  stock  will  not  preclude  a  condi- 
tion in  the  stock  certificates  that  the  stock 
will  not  be  transferred  on  the  books  until 
the  holder  has  paid  al!  his  debt  to  the  bank. 
Jennings  v.  Bank  of  California,  79  Cal.  323, 
21  Pac.  852,  5:  233 

10.  A  bank  is  put  upon  inquiry  as  to  the 
right  of  an  executrix  to  transfer  stock  in 
the  bank  to  herself  as  an  individual  by  a 
proposal  to  make  such  transfer  as  security 
for  her  indorsement  of  the  note  of  another; 
and  if  the  bank  relies  upon  the  statement 
of  the  maker  of  the  note  as  to  her  owner- 
ship, instead  of  consulting  the  will,  and  the 
transfer  by  the  executrix  was  unauthorized, 
it   can   claim   no   lien   as   security   for   such 

I  indorsement  against  those  who  are  enti- 
j  tied  to  tiie  stock  under  the  will.  Peck  v. 
i  Bank  of  America,  16  R.  L  710,  19  Atl.  369, 

7:  826 

11.  One  who  contemplates  the  purchase 
of  stock  in  a  national  bank  is  entitled  to 
rely  on  the  publication  of  reports  to  the 
comptroller  of  the  currency  respecting  its 
condition.  Gerner  v.  Mosher,  58  Neb.  135, 
78  N.  W.  384,  40:  244 
Lien   on   stock. 

Lien    on    Corporate    Stock    Generally,    see 
Corporations,  V.  c,  3. 

12.  The  invalidity  of  a  lien  on  shares  of 
stock  in  a  national  bank,  under  a  by-law 
in  conflict  with  the  national  banking  act 
of  Congress,  can  be  asserted  by  the  owner 


BANKS,     II. 


SOS 


of  the  stock  to  defeat  the  lien,  and  the 
right  to  raise  the  question  of  its  invalid- 
ity is  not  restricted  to  the  Federal  govern- 
ment. Buffalo  German  Ins.  Co.  v.  Third 
Nat.  Bank,  162  N.  Y.  163,  56  N.  E.  521, 

48:  107 

13.  An  equitable  lien  in  favor  of  a  nation- 
al bank  upon  its  shares  of  stock  cannot  be 
asserted  against  a  third  person  by  virtue 
of  a  loan  to  a  stockholder  on  the  security 
of  the  shares,  under  a  by-law  providing 
that  any  liability  of  the  stockholder  should 
be  a  lien  upon  the  stock,  which  by-law  is 
printed  on  the  face  of  the  certificate  of 
stock  so  as  to  be  notice  to  all  persons  deal- 
ing therein,  since  such  by-law  is  in  con- 
flict with  the  provisions  of  the  national 
banking  act  of  1864,  §  35,  prohibiting  any 
loan  by  such  bank  on  the  security  of  its 
own  shares  of  stock.  Id. 

14.  By-laws  of  a  bank,  » subsequently 
adopted)  that  certificates  of  its  stock  shall 
be  transferable  by  indorsement  and  deliv- 
ery thereof,  the  transfer  to  be  complete 
and  binding  on  the  bank  only  when  record- 
ed on  its  books,  and  which  do  not  provide 
for  any  lien,  do  not  forbid  a  contract  for  a 
lien  upon  shares  to  secure  a  loan  to  a  stock- 
holder,— the  lien  is  independent  of  the 
by-laws.  Jennings  v.  Bank  of  California, 
79  Cal.  323,  21  Pac.  852,  5:  233 

15.  The  assets  of  an  insolvent  stockholder 
in  an  insolvent  national  bank,  whether  liv- 
ing or  dead,  are  not,  as  against  his  other 
creditors,  subject  to  a  preferential  lien  by 
virtue  of  the  trust-fund  doctrine  applicable 
to  the  assets  of  insolvent  corporations, 
for  the  payment  of  his  liability,  under  U.  S. 
Rev.  Stat!  §  5152,  U.  S.  Com'p.  Stat.  1901, 
p.  3463,  for  the  debts  of  the  bank  for  an 
amount  equal  to  the  par  value  of  his  stock. 
Re  Beard's  Estate,  7  Wyo.  104,  50  Pac.  226, 

38:  860 

Nature  and  extent  of  stockholder's  liability. 

Liability  of  Corporate  Stockholders  Gener- 
ally, see  Corporations,  V.  f. 

See  also  supra,  15. 

For  Editorial  Notes,  see  infra,  VIII.  §  22; 
Corporations,  VIII.  §§  35-43. 

16.  The  contract  of  the  shareholder  of 
a  national  bank  with  the  bank  and  its 
creditors,  regarding  its  debts,  is  that,  to 
an  amount  not  exceeding  the  par  value  of 
his  shares  of  stock,  and  not  exceeding  his 
equal  and  ratable  proportion,  he  will  pay, 
at  such  times  and  in  such  amounts  as  the 
Comptroller  of  the  Currency  shall  demand, 
the  debts  and  obligations  of  his  bank.  De- 
weese  v.  Smith,  45  C.  C.  A.  408,  106  Fed. 
438,  66:  971 

17.  The  liability  of  the  shareholders  of 
national  banks  for  their  debts  under  U.  S. 
Rev.  Stat.  §  5151,  U.  S.  Comp.  Stat.  1901,  p. 
3465,  is  based  upon  contract.  Id. 

18.  A  bank  holding  certificates  of  de- 
posit issued  by  another  bank  in  which  it 
has  not  actually  deposited  the  moneys 
thereby  represented,  but  to  which  it  has 
given  credit  for  the  amount  ou  its  own 
books,  against  which  checks  or  drafts  are 
drawn,  is  not  a  depositor  within  the  pro- 
vision   of    3    Fow.    (Mich.)    Ann.    Stat.    § 


3208e5,  creating  an  individual  liability  of 
stockholders  to  depositors.  State  Sav. 
Bank  v.  Foster,  118  Mich.  268,  76  N.  W. 
499,  42:404 

19.  The  decision  of  the  Comptroller  of 
the  Currency  that  it  is  necessary  to  col- 
lect, and  his  requisition  of,  a  certain  per- 
centage of  the  liability  of  the  shareholders 
of  a  national  bank,  in  order  to  pay  its  debts, 
is  not  a  decision  that  a  larger  percentage 
will  not  be  necessary;  and  he  has  plenary 
power  to  make  successive  assessments  un- 
til the  full  liability  of  the  shareholder  is 
exhausted.  Deweese  v.  Smith,  45  C.  C.  A. 
408,   106  Fed.  438,  66:  971 

20.  Under  the  acts  of  Congress  the  Comp- 
troller of  the  Currency  is  constituted  a 
quasi-judicial  tribunal  to  determine  at  what 
times  and  what  amounts,  not  exceeding 
the  full  liability  of  the  stockholders,  it  is 
necessary  to  collect  from  them  to  pay  the 
debts  of  the  bank;  and  his  decisions  of 
these  questions  are  impervious  to  collateral 
attack,  and  open  to  avoidance  by  a  court 
only  in  a  direct  attack  upon  them  for  error 
of  law,  fraud,  or  mistake.  Id. 
Who  liable  as  stockholder. 

See   also  Corporations,  572,   628-637. 
For   Editorial   Notes,   see   Corporations,    §§ 
38   39. 

21.  Under  U.  S.  Rev.  Stat.  §  5151,  U.  S. 
Comp.  Stat.  1901,  p.  3465,  a  married  woman 
who  is  a  shareholder  in  a  national  bank  is 
liable  for  an  assessment  upon  stock  held 
by  her,  whether  acquired  by  subscription, 
purchase,  bequest,  or  otherwise.  Witters 
V.  Sowles,  35  Fed.  640,  1 :  64 

22.  A  pledgee  of  stock  in  a  national  bank, 
who  holds  it  solely  as  collateral  security  for 
a  debt  due  from  the  real  owner  of  the 
stock,  cannot  be  held  liable  as  a  stockholder 
for  assessments  thereon,  when  the  name  of 
such  pledgee  as  owner  or  holder  of  the 
shares  has  never  appeared  upon  the  books 
of  the  bank,  or  even  upon  the  certificates 
of  stock.     Welles  v.  Larrabee,  36  Fed.  866, 

2:  471 

23.  A  person  who  is  not  the  owner  of 
stock  in  a  national  bank,  and  has  no  bene- 
ficial interest  therein,  cannot  be  held  liable 
for  assessments  thereon  by  reason  of  the 
fact  that  the  shares  have  been  a<signed  to 
him  to  hold  in  trust,  where  it  appears  upon 
the  proper  books  of  the  bank  that  he  holds 
the  same  as  trustee.  If  he  can  be  held  to 
be  technically  a  stockholder,  under  U.  S. 
Rev.  Stat.  §  5151,  U.  S.  Comp.  Stat,  1901,  p. 
3465,  he  must  also  be  held  exempt  from 
liability  as  trustee,  under  §  5152.  Id. 
Enforcement  of  liability. 

Of    Corporate    Stockholders    Generally,    see 

Corporations,   V.    f,   4. 
For   Editorial   Notes,   see   Corporations,    §§ 

42,  43. 

24.  The  statutory  liability  of  a  share- 
holder of  an  insolvent  bank  cannot,  in  the 
absence  of  statutory  authority,  be  enforced 
by  the  assignee  of  such  bank.  Runner  v. 
Dwiggins,  147  Ind.  238,  46  N.  E.  580, 

36:  645 

25.  The  assignee  of  an  insolvent  bank  can- 
not enforce  the  statutory  liability  against 


206 


BANKS,  III.  a,  b. 


a  shareholder,  under  Ind.  Rev.  Stat.  1894, 
§  2908,  providing  that  the  trustee  shall  pro- 
ceed to  collect  the  "rights  and  credits"  of 
the  assignor.  Id. 

Release  from  liability. 

For  Editorial  Notes,  see  Corporations,  §  38. 
26.  A  resolution  passed  by  stockholders 
of  a  bank  a  year  after  the  bank  had  begun 
business,  but  before  any  certificates  of  stock 
had  been  issued,  reducing  the  amount  of 
stock  to  50  per  cent  of  the  amount  origi- 
nally subscribed,  which  was  the  minimum 
amount  fixed  by  charter  and  all  that  it  had 
been  contemplated  to  pay  in,  thus  reducing 
the  stock  to  full  paid-up  stock,  where  it 
is  not  shown  that  any  publicity  had  been 
given  to  the  subscription  list,  or  that  any 
creditor  knew  what  it  contained,  releases 
the  stockholders  from  any  liability  either 
to  the  bank  or  to  creditors  on  account  of 
the  additional  50  per  cent  of  stock  for 
which  they  originally  subscribed.  Hill  v. 
Silvey,  Sl'Ga.  500,  8  S.  E.  808,  3:  150 


III.  Officers  and  Agents, 
a.  Qualification;    Election. 

27.  A  national  bank  which  elects  not  to 
avail  itself  of  the  privilege  given  by  act 
of  Congress  of  July  12,  1882,  to  extend  its 
corporate  existence,  may,  under  the  pro- 
vision of  that  act  extending  its  "fran- 
chise" for  the  sole  purpose  of  liquidating 
its  affairs,  exercise  all  the  powers  original- 
ly conferred  upon  it  which  are  appropriate 
for  that  purpose,  among  which  is  the  elec- 
tion of  directors.  Richards  v.  Attlebor- 
ough  Nat.  Bank,  148  Mass.  187,  19  N.  E. 
.35.3,  '  1 :  781 

28.  The  qualification  of  directore  pre- 
scribed by  the  national  bank  act,  that  they 
shall  be  the  owners  of  ten  shares  of  the 
stock  of  the  bank  is  not  dispensed  with 
when  the  franchise  is  extended  merely  for 
the  purpose  of  liquidation.  Id. 

29.  National  bank  stock  is  not  transfer- 
iiblo  so  as  to  make  the  transferee  a  corpora- 
tor, after  the  bank  has  entered  into  liquida- 
tion; and  hence  only  those  can  become  di- 
rectors after  that  time  who  were  qualified 
by  the  requisite  holding  of  stock  when  the 
bank  ceased  to  do  business  and  commenced 
liquidation.  Id. 

30.  When,  on  the  expiration  of  its  char- 
ter term,  a  national  bank  elected  to  go  in- 
to liquidation,  its  franchise  being  extend- 
ed for  that  purpose  bj'  force  of  the  act  of 
Congress  of  July  12,  1882,  and,  after  its 
affairs  had  been  nearly  closed  up,  a  board 
of  directors  was  elected,  members  of  which, 
required  to  make  up  the  legal  number,  were 
disqualified  by  reason  of  not  being  holders 
of  the  requisite  shares  of  stock  when  the 
bank  commenced  liquidation,  the  election 
was  invalid,  and  the  board  so  chosen  had 
no  power  to  revoke  a  submission  to  arbi- 
tration theretofore  entered  into  by  the  bank. 

Id. 


b.  Authority;  Ratification. 

Imputing  OflScer's  Knowledge  to  Bank,  se» 

Notice,  42,  65-70. 
See  also  infra,  60-62,  299,  300. 
For  Editorial  Notes,  see  infra,  VIII.  §  5. 

Authority  of  president. 

Measure  of  Bank's  Liability  for  Fraud  by,. 

see  Damages,  258. 
Estoppel  to  Deny,   see  Estoppel,   157. 
See  also  infra,  294. 

31.  The  president  of  a  banking  corpora- 
tion has  the  power  to  employ  counsel  and 
manage  the  litigation  of  the  bank,  in  the- 
absence  of  any  order  of  the  board  of  direct- 
ors depriving  him  of  such  power.  Citizens'^ 
Nat.  Bank  v.  Berrv,  53  Kan.  696,  37  Pac. 
131,  '  24:  719- 

32.  The  president  of  a  national  bank  is 
conclusively  presumed  to  have  authority  to- 
guarantee  commercial  paper  on  a  saje  there- 
of, in  the  absence  of  notice  to  the  contrary. 
Thomas  v.  City  Nat.  Bank,  40  Neb.  501,. 
58  N.   W.   943,  24:  263 

33.  False  representations  by  a  defaulting 
bank  president  as  to  his  liability  to  the- 
bank  and  the  value  and  condition  of  securi- 
ties already  furnished  by  him  are  not  bind- 
ing upon  the  bank,  so  as  to  enable  a  per- 
son furnishing  securities  at  his  request,, 
with  knowledge  of  the  purpose  for  which 
he  intends  to  use  the  same,  to  rely  upon- 
such  representations  as  a  defense  in  a  sub- 
sequent action  by  the  bank  to  foreclose  its 
lien  upon  such  securities.  Tecumseh  Nat. 
Bank  v.  Chamberlain  Bkg.  House,  63  Neb- 
163,  88  N.  W.   186,  57:  811 

34.  Brokers  who  receive  drafts  drawn  in 
their  favor  by  the  president  of  a  bank  upon- 
its  funds  in  settlement  of  his  transactions 
upon  the  board  of  trade  are  bound  to  com- 
municate that  fact  to  the  bank  directors,, 
and  inquire  as  to  his  authority  to  execute 
the  paper.  Lamson  v.  Beard,  36  C.  C.  A. 
56,  94  Fed.  30,  45:  82'Z 
Authority  of  cashier. 

To  Induce  Person  to  Become  Suretj'  on- 
Teller's  Bond,  see  Bonds,  41,  43. 

Estoppel  of  Bank  bj-  Cashier's  Acts,  see  Es- 
toppel, 293. 

Presumption  as  to,  see  Evidence,  287. 

Imputing  Cashier's  Knowledge  to  Bank,  see 
Notice,  65-68. 

Right  to  Finding  as  to,  see  Trial,  870. 

See  also  infra,  274. 

35.  Persons  dealing  with  the  cashier  of 
an  incorporated  savings  bank  as  such  are 
chargeable  with  knowledge  of  the  corporate 
powers  of  the  bank  and  of  the  extent  to 
which  the  cashier  can  bind  it;  and  it  is  im- 
material that  the  institution  is  a  foreign 
one.  Jemison  v.  Citizens  Sav.  Bank,  112 
N.  Y.  135,  25  N.  E.  264,  9:  70a 

36.  The  fact  that  the  cashier  is  personal- 
ly interested  in  the  transaction  is  sufficient 
to  put  his  creditor  upon  inquiry  as  to  the- 
actual  extent  of  his  power,  where  the  cash- 
ier of  a  bank  attempts  to  pay  his  individ- 
ual  debt    by    entering   the   amount   thereof 


BANKS,  III.  b. 


207 


as  a  credit  on  the  passbook  of  his  creditor. 
Hier  v.  Miller,  68  Kan.  258,  75  Pac.  77, 

63:  952 

37.  A  cashier  of  a  national  bank  has  au- 
thority to  indorse  negotiable  paper  for  the 
hank  to  parties  dealing  with  it  in  good 
faith.  Auten  v.  Manistee  Nat.  Bank,  67 
Ark.  243,  54  S.  W.  337,  47:  329 

38.  A  cashier  of  a  bank  has  no  implied 
power,  merely  by  virtue  of  his  office,  to 
receive  money  for  interest  in  advance  on  a 
note  owned  by  the  bank,  and  agree  to  ex- 
tend the  time  of  payment,  and  thus  dis- 
charge an  indorser  from  liability.  Bank  of 
Ravenswood  v.  Wetzel  (W.  Va.)  50  S.  E. 
886,  70:  305 

39.  A  bank  cashier  in  stealing  or  clandes- 
tinely appropriating  to  his  own  use  a 
special  deposit  received  by  the  bank  through 
him  for  gratuitous  safe  keeping  is  not  act- 
ing within  the  scope  of  his  em'plojanent,  so 
as  to  make  the  bank  liable  therefor.  Mer- 
chants' Nat.  Bank  v.  Guilmartin,  88  Ga. 
797,  15  S.  E.  831,  17:  322 

40.  The  cashier  of  a  banking  corporation 
has;  by  virtue  of  his  office,  no  authority 
to  accept,  in  payment  and  discharge  of  a 
debt  due  the  bank,  certificates  of  the  capital 
stock  of  an  insurance  company.  Bank  of 
Commerce  v.  Hart,  37  Neb.  197,  55  N.  W. 
631,  20:  780 

41.  The  validity  of  a  purchase  of  national 
bank  stock  by  the  cashier  for  the  bank 
in  violation  of  U.  S.  Rev.  Stat.  §  5201,  U. 
S.  Comp.  Stat.  1901,  p.  3494,  cannot  be  de- 
nied by  sureties  of  the  cashier  as  a  de- 
fense to  an  action  on  his  bond  for  mis- 
appropriation of  the  stock,  since  only  the 
Federal  government  can  set  up  the  in- 
validity of  that  transaction.  Walden  Nat. 
Bank  v.  BircTi,  130  N.  Y.  221,  29  N.  E. 
127,  14:  211 

42.  A  bank  cashier  is  not  acting  within 
the  scope  of  his  authority  in  giving  informa- 
tion as  to  the  value  of  notes  executed  by 
customerK  of  the  bank,  so  as  to  render  it 
liable  in  case  the  statements  prove  to  be 
untrue.  Tavlor  v.  Commercial  Bank,  174 
N.  Y.  181,  66  N.  E.  726,  62:  783 

43.  A  bank  is  not  made  liable  for  the 
fraud  of  its  cashier  in  inducing  a  third 
person  to  give  credit  to  one  of  its  custom- 
ers by  false  representations  as  to  his  re- 
sponsibility, by  the  facts  that  the  customer 
was  then  largely  indebted  to  the  bank,  and 
its  representative  was  soon  after  made  re- 
ceiver of  his  property  to  aid  the  bank  in 
collecting  its  claim  against  him,  where  the 
receivership  resulted  in  no  benefit  to  the 
bank,  and  it  received  no  advantage  from 
the  credit  given.  Id. 

44.  No  duty  rests  on  the  cashier  of  a  bank 
to  disclose  the  situation  of  the  account  of 
a  customer  with  the  bank  upon  receiving 
an  inquiry  from  a  third  person  as  to  the 
responsibility  of  the  customer.  Id. 

45.  A  statement  by  the  cashier  of  a  bank 
to  one  inquiring  into  the  condition  of  one 
of  its  corporation  customers,  dividing  its 
deposit  into  capital  and  surplus,  is  binding 
on  the  bank,  llindman  v.  First  Nat.  Bank. 
50  C.  C.  A.  623,  112  Fed.  931,  57:  108 


46.  A  false  certificate  by  the  cashier  of 
a  bank,  stating  that  an  insurance  company 
had  on  deposit  subject  to  check  certain 
amounts  of  paid-up  capital  and  net  sur- 
plus, made  to  assist  the  company  to  obtain 
a  license,  and  authorized  by  the  board  of 
directors,  who  knew  it  to  be  false,  and  the 
publication  of  the  same  statement  in  the 
public  press,  to  which  the  bank  was  privy, 
for  the  purpose  of  securing  a  large  bank 
deposit  and  of  selling  stock  held  by  the 
bank  as  collateral,  render  the  bank  liable 
for  deceit  to  a  person  who  bought  worth- 
less stock  of  the  insurance  company  in  reli- 
ance on  these  statements.  Hindman  v. 
First  Nat.  Bank,  39  C.  C.  A.  1,  98  Fed.  oG2, 

48:  210 

47.  A  bank  is  liable  for  the  act  of  its 
cashier  in  falsely  certifying  that  the  capi- 
tal of  an  insurance  company  is  all  paid  in 
and  on  deposit  in  the  bank,  if  made  in 
the  general  course  of  the  bank's  business 
from  facts  supposed  to  be  known  to  him, 
although  the  giving  of  such  a  certificate  is 
}iltra  vires  the  bank,  if  it  is  not  sufficient- 
ly so  to  carry  notice  to  all  of  its  ultra 
vires  character.  Id. 

48.  If  the  cashier  of  a  bank,  without  ac- 
tual authority  so  to  do,  undertakes  to  pay 
his  individual  debts  by  entering  the  amount 
thereof  as  a  credit  upon  the  passbook  of  his 
creditor,  who  keeps  an  account  with  the 
bank,  the  bank  may  recover  of  his  credi- 
tor the  amount  of  money  it  may  pay  out 
upon  checks  drawn  upon  the  faith  of  the 
unauthorized  passbook  entries.  Hier  v.  Mil- 
ler, 68  Kan.  258,  75  Pac.  77,  63:  932 

49.  The  cashier  of  a  bank  organized  under 
the  laws  of  Kansas  has  no  implied  author- 

■  ity  to  pay  his  individual  debts  by  entering 
the  amount  of  them  as  a  credit  upon  the 
passbook  of  his  creditor,  who  keeps  an  ac- 
count with  the  bank,  and  permitting  the 
creditor  to  exhaust  such  account  by  checks 
which  are  paid,  the  bank  having  received 
nothing  of  value  in  the  transaction.         Id. 

50.  One  who  goes  into  a  bank  after  busi- 
ness hours,  and  finds  in  a  room  used  for 
the  transaction  of  business  after  the  usual 
hours  the  paying  teller  of  such  bank,  who 
is  the  only  officer  with  whom  he  was  ac- 
quainted, and  deposits  with  such  teller  for 
collection  a  post-dated  check  upon  such 
bank,  upon  the  teller's  promise  to  hold 
the  proceeds  subject  to  his  check,  the  trans- 
action being  substantially  in  the  presence 
of  the  cashier,  though  he  is  separated  by  a 
wire  partition,  is  entitled  to  hold  the  bank 
liable, — especially  where  such  teller  has,  tO' 
the  knowledge  of  the  cashier,  occasionally 
acted  as  receiving  teller,  and  the  depositor 
is  not  aware  of  any  limitations  upon  his 
authority.  Averell  v.  Second  Nat.  Bank,. 
2  App.  D.  0.  470,  25:  761 

51.  A  subsequent  misuse  or  misapplica- 
tion by  bank  officers  of  the  proceeds  of 
notes  bought  from  the  cashier  of  a  national 
bank  and  deposited  to  the  credit  of  sijch 
bank,  by  its  direction,  in  a  New  York  bank, 
will  not  affect  the  rights  of  the  purchaser, 


208 


BANKS,  III.   c. 


it  it  waH  innocent.  Auten  v.  Manistee  Nat. 
Bank,  67  Ark.  243,  54  S.  W.  337,  47:  329 
Authority  of  directors. 

52.  The  acts  of  the  directory  of  a  bank- 
ing corporation  in  dealing  with  and  invest- 
ing the  funds  of  the  stockholders,  to  bind 
the  bank  must  be  confined  to  the  express 
purposes  for  which  the  bank  wa^  incor- 
porated, and  to  purposes  incidental  thereto 
in  the  necessary  conduct  of  its  legitimate 
business.  Bank  of  Commerce  v.  Hart,  37 
Xeb.  197,  55  N.  W.  631,  20:  780 
Authority  of  bank  examiner. 

53.  A  bank  examiner  who  takes  charge  of 
the  assets  of  a  national  bank  under  the  di- 
rection of  the  comptroller  is  not  the  agent 
for  the  bank  in  such  negotiations  as  it  may 
be  permitted  to  enter  into  with  a  view  to 
the  resumption  of  business.  Tecumseh  Nat. 
Bank  v.  Chamberlain  Bkg.  House,  63  Neb. 
163.    8b    N.    W.    186,  57:  811 

54.  Statements  by  a  bank  examiner  who 
takes  charge  of  the  assets  of  a  national 
bank  under  the  direction  of  the  comptrol- 
ler, as  to  the  liabilities  of,  and  the  value 
ar.^  condition  of  securities  already  furnished 
by,  a  defaulting  officer  of  such  bank,  who, 
for  the  purpose  of  replenishing  its  assets 
and  enabling  it  to  resuine  business,  is  al- 
lowed to  furnish  collateral  securities  for 
liis  indorsements  upon  paper  .  previously 
sold  by  him  to  the  bank, — are  not  bind- 
ing upon  the  bank;  and  one  who  furnishes 
collateral  securities  to  such  defaulting  of- 
ficer, to  be  so  used  by  him,  cannot  rely 
upon  such  representations  of  the  examiner 
us  a  defense  in  an  action  by  the  bank  to 
t(jre(l()se  its  lien  upon  such  securities.  Id. 
Katification. 

.See  also  infra,  82. 

55.  The  retention  and  enjoyment  by  a  na- 
tional bank  of  the  proceeds  of  a  guaranty 
of  payment  of  a  commercial  paper  sold  by 
its  president  ratifies  his  act.  Thomas  v. 
City  Nat.  Bank,  40  Neb.  501,  58  N.  W.  943, 

24:  203 
c.  Liability. 

Liability  on   Bond  of,   see  Bonds,  34-45. 
Release  of  Sureties  on  Cashier's  Bond,  see 

Principal  and  Surety,  22-24,  40. 
Election    of    Remedy    against    Cashier,    see 

Election  of  Remedies,  55. 
See  also  infl'Si,  358. 

Of  president. 

Assumpsit  for  Money  Misappropriated  by, 
see  Assumpsit,  23. 
55a.  The  president  of  a  bank,  who,  by 
verbal  promises  of  collateral  liability,  in- 
duces tlie  cashier  to  advance  money  to  a 
minor,  whereby  it  is  lost,  is  liable  to  the 
bank  for  the  amount  on  the  ground  that  he 
is  guilty  of  a  breach  of  the  trust  imposed 
in  him  by  reason  of  his  position.  Brown 
v.  Farmers'  &  M.  Nat.  nank,  88  Tex.  205, 
31    S.   W.  285,  33:  359 

Of  directors. 
See  also  infra,  382,  383. 
For  Editorial  Notes,  see  infra,  VITI.  §  4. 

56.  The  degree  of  care  reijuired  of  bank 
directors  who  receive  no  compensation  for 
their  services  and   whose  principal   business 


is  to  assist  in  discounting  paper  is  not  that 
which  they  take  of  their  own  affairs,  but 
the  ordinary  care  of  bank  directors  in  the 
business  of  a  bank.  Swentzel  v.  Penn 
Bank,  147  Pa.   140,  23  Atl.  405,  15:  305 

57.  Bank  directors  who  are  gratuitous 
mandatories  are  only  liable  for  fraud,  or  for 
such  gross  negligence  as  amounts  to  fraud. 

Id. 

58.  The  failure  of  bank  directors  to  ex- 
amine the  individual  ledger  of  the  bank, 
which,  by  the  rules  of  their  bank  and  of 
most  other  banks  in  the  city,  directors  are 
not  permitted  to  see,  and  in  which  alone 
the  frauds  by  which  the  bank  was  wrecked 
could  be  discovered,  will  not  make  them 
liable  for  the  fraud  of  ofl[icers  and  employees 
of  the  bank.  Id. 

59.  Directors  of  a  national  bank  are  re- 
quired to  cause  examination  of  the  dis- 
counted paper  of  the  bank  due,  with  rea- 
sonable frequency,  and  to  keep  themselves 
sufficiently  informed  about  it  to  enable 
them  to  pass  an  intelligent  judgment  upon 
its  value.  Warner  v.  Penoyer,  33  C.  C.  A, 
222,  61  U.  S.  App.  372,  91   Fed.  587,  44;  761 

60.  Directors  of  a  national  bank  who 
aie  members  of  the  discount  and  examining 
committees  will  be  held  liable  for  losses 
occasioned  by  the  reckless  loans  of  the 
cashier,  where  they  made  not  even  a  cur- 
sory examination  of  the  discounts  o?  over- 
drafts beyond  looking  at  such  notes  as  the 
cashier  saw  fit  to  consult  them  about.     Id. 

61.  Mere  failure  to  attend  meetings  of 
the  board  will  not  render  directors  of  a 
national  bank  liable  for  defalcation  of  the 
cashier.  Id. 

62.  Bank  directors  are  not  required  to 
procure  periodical  expert  examination  of 
the  books  in  order  to  verify  by  personal 
examination  such  details  of  the  bank's  con- 
dition as  they  ought  to  know  before  declar- 
ing dividends,  or  which  are  required  to  be 
reported  to  the  comptroller  of  the  currency, 
if  there  is  no  reason  to  distrust  the  in- 
tegrity or  efficiency  of  the  cashier.  Id, 

63.  A  director  who  did  not  attest  or  in 
an}-  manner  participate  in  making  or  pub- 
lishing reports  of  a  national  bank  to  the 
comptroller  of  the  currency  is  not  responsi- 
ble for  misstatements  therein.  Gerner  v. 
Mosher,  58  Neb.  135,  78  N.  W.  384,     46:  244 

64.  Directors  of  an  insolvent  national 
bank,  who  attested  a  report  to  the  comp- 
troller of  the  currency,  representing  the 
bank  to  be  solvent,  are  personally  liable  to 
one  who  purchased  stock  in  the  bank  ic 
reliance  on  the  report,  even  if  they  had  no 
intent  to  defraud,  and  did  not  know  that 
the  report  was  false.  Id. 

65.  False  statements  in  a  report  which  a 
banking  corporation  is  required  to  make 
to  the  secretary  of  state  by  Mo.  Rev.  Stat. 
1889,  S  2752,  making  it  a  misdemeanor 
punishable  by  fine  or  imprisonment  for  the 
directors  to  refuse  to  make  the  statement, 
or  wilfully  and  corruptly  to  make  a  false 
statement,  will  not  make  the  directors 
liable  to  a  common-law  action  for  deceit  by 
one  who  makes  a  deposit  in  the  bank,  re- 
lying   on    such    report,    if    they    make    the 


BANKS,  IV.  a,  I. 


209 


statements  in  good  faith,  honestly  believing 
them  to  be  true.  Utley  v.  Hill,  155  Mo. 
232,  55  S.  W.   1091,   1102,  49:323 

66.  The  liability  of  bank  directors  and 
officers  under  Mo.  Rev.  Stat.  1889,  §  2760, 
for  deposits  accepted  with  the  directors'  as- 
sent after  they  have  knowledge  that  the 
bank  is  insolvent  or  in  failing  circumstances, 
does  not  extend  to  deposits  received  when 
they  did  not  have  actual  knowledge  of  the 
bank's  condition,  but  acted  in  good  faith 
and  were  innocent  of  wrongdoing,  although 
they  were  negligently  ignorant  of  the 
bank's  condition,  which  they  could  have  as- 
certained if  they  had  not  neglected  to  in- 
vestigate or  keep  posted  as  to  its  ailairs. 

Id. 


IV.  Banking.       *, 
a.  Deposits. 
1.  In  General;   Nature  of;   Liens  on. 

Rights  in  Deposit  in  Insolvent  Bank,  see 
infra,  309-318. 

Judicial  Notice  of  Custom  as  to  Deposit  of 
Check,  see  Evidence,  135. 

Parol  Evidence  as  to  Custom,  see  Evidence, 
1092. 

Parol  Evidence  as  to  Pass  Book,  see  Evi- 
dence, 1130. 

Evidence  as  to  Deposit  of  Check,  see  Evi- 
dence, 2181. 

Duty  of  Executrix  to  Deposit  Funds,  see 
Executors  and  Administrators,  27. 

Authority  of  Insolvent  Factor  to  Make,  see 
Factors,   13. 

Gift  of  Bank  Deposit,  see  Gift,  20-24,  38, 
58-65. 

Interest  on  Deposit,  see  Interest,.  19,  75- 
77. 

Liability  of  Judge  for  Loss  of  Deposit  in,  see 
•ludges,   65. 

Imputing  Agent's  Knowledge  to  Depositor, 
see  Notice,  45-48. 

Liability  as  Partner  in  Banking  Business, 
see  Partnership,  45. 

Power  of  Surviving  Partner  to  Accept  De- 
posit, see  Partnership,  128. 

Reply  in  Action  for  Balance  of  Deposit,  see 
"Pleading,  562. 

Deposits  of  Public  Money,  see  Public 
Moneys,  3-10. 

Taxation  of  Deposits,  see  Taxes,  75,  621. 

Question  for  Jury  as  to  Bank's  Negligence 
as  to.  see  Trial.  492. 

Deposit  by  Trustee  as  Negligence,  see 
Trusts,  158. 

As  Ademption  of  Legacy,  see  Wills,  452. 

See  also  infra,  364-368. 

For  Editorial  Notes,  see  infra,  VIII.  §  6. 

67.  Obtaining  a  new  check  in  place  of 
one  lost  in  the  mail,  which  bears  the  date 
of  the  former  one  and  is  marked  "Dupli- 
cate," is  not  a  new  transaction,  and  the 
payee  does  not,  by  placing  his  name  upon 
it  to  facilitate  collection,  assume  any  obliga- 
tion to  which  he  was  not  subject  under  his 
L.R.A.  Dig.— 14. 


original    indorsement.       Aebi     v.     Bank    of 
Evansville,  124  Wis.  73,  102  N.  W.  329, 

68:  964 

68.  Where  tax  receipts  are  received  by 
a  bank  in  good  faith  as  deposits,  and  credit- 
ed as  so  much  money,  it  becomes  at  once 
legally  liable  to  the  depositor  as  for  so 
much  cash  deposited.  Wasson  v.  Lamb,  120 
Ind.  514,  22  N.  E.  729,  6:  191 

69.  In  determining  the  liability  of  a  bank 
for  fraudulent  representations  as  to  solvency 
to  induce  certain  deposits,  where  this  de- 
pends on  the  question  whether  the  deposit- 
or had  checKed  out  the  whole  amount  de- 
posited after  such  representations,  the  time 
of  deposit  of  tax  receipts  is  the  time  when 
they  were  delivered  and  credited  on  the  de- 
positor's tax  book,  and  the  same  marked 
paid  b}'  him  on  the  tax  duplicate,  although 
he  was  not  credited  therewith  on  the  books 
of  the  bank  for  five  days  thereafter.  Id. 
Special. 

Burden  of  Proving  Diligence  in  Keeping,  see 
Evidence,  540. 

Proof  of  Agreement  Allowing  Checks 
aeainst,  see  Evidence,  2315. 

Parol  Evidence  as  to  Checking  against,  see 
Evidence,  1104. 

Evidence  as  to  Liability  for  Loss  of,  see 
Evidence,  2150. 

Sufficiency  of  Proof  of  Care  as  to,  see  Evi- 
dence, 2234. 

See  also  supra,  39;  infra,  380,  381,  386. 

For   Editorial   Notes,   see   infra,   VIII.   §   8. 

70.  A  deposit  of  money  with  bankers  at 
their  banking  house  is  regarded  as  general 
unless  it  appears  that  the  depositor  makes 
it  special  or  deposits  it  expressly  in  some 
particular  capacity.  Meadowcroft  v.  Peo- 
ple, 163  111.  56,  45'N.  E.  303,  35:  176 

71.  The  addition  to  the  name  of  the  de- 
positor in  an  account  with  a  bank,  of  the 
words  "judge  of  probate,  license  money,"  is 
not  alone  sufficient  to  make  deposits  on  such 
account  special.  Alston  v.  State,  92  Ala. 
124,  9  So.  732,  13:  659 

72.  Money  deposited  in  a  bank  on  open  ac- 
count subject  to  check,  and  not  received  as 
a  special  deposit,  is  in  substance  and  legal 
effect  a  loan.  State  ex  rel.  First  Nat.  Bank 
V.  Bartley,  39  Neb.  353,  58  N.  W.  172, 

23:  67 

73.  A  deposit  is  not  special  by  reason  of 
a  certificate  of  deposit  showing  that  it  is 
made  to  secure  the  banker  against  a  liabil- 
ity as  surety  of  the  depositor,  where  the 
latter  knows  that  the  money  is  mingled 
with  funds  of  the  bank;  but  such  deposit 
passes  to  the  banker's  assignee  in  case  of 
his  insolvency.  Miitual  Acci.  Asso.  v.  Ja- 
cobs, 141  111.  261,  31  N.  E.  414,  16:  516 

74.  A  special  deposit  is  gratuitous  if  it 
be  accepted  for  the  accommodation  of  the 
depositor,  and  without  any  undertaking  by 
him,  express  or  implied,  to  pay  or 'do  any- 
thing as  compensation  or  reward  for  keep- 
ing the  deposit.  Merchants'  Nat.  Bank  v. 
Guilmartin,  88  Ga.  797,  15  S.  E.  831, 

17:  322 

75.  A  deposit  of  gold  coin  in  a  bank  as  a 
pledge  to  secure  an  oblifjation  on  a  bail 
bond  and  the  receipt  of  an  acknowledgment 


210 


BANKS,  IV.  a.  I. 


that  it  is  payable  on  return  of  the  certifi- 
cate, with  a  clause  stating  that  it  is  pay- 
able only  on  release  of  bonds  and  is  not 
subject  to  check,  constitute  a  special  de- 
posit, the  return  of  which  can  be  enforced 
in  case  of  the  bank's  insolvency,  the  nature 
of  which  is  not  changed  by  the  fact  that 
without  the  knowledge  or  consent  of  the 
depositor  the  money  afterwards  gets  into 
the  bank  vaults  through,  the  regular  chan- 
nels. Anderson  v.  Pacific  Bank,  112  Cal. 
598,  44  Pac.  1063,  32:  479 

76.  A  bank  is  not  relieved  from  liability 
to  the  owner  of  a  special  deposit  stolen  by 
the  cashier,  by  the  fact  that  up  to  a  time 
three  or  more  years  previoiis  to  the  dis- 
covery of  the  theft  his  reputation  was  good, 
and  he  stood  in  the  community  for  honesty 
and  integrity  as  high  as  any  man;  but  it  is 
incumbent  upon  che  bank  to  show  that  it 
exercised  at  least  a  slight  supervision  of 
him,  and  that  no  indication  of  dishonesty 
or  other  reasons  for  distrusting  him  had 
appeared.  Merchants'  Nat.  Bank  v.  Car- 
hart,  95  Ga.  394,  22  S.  E.  628,  32:  775 

77.  A  bank  which,  according  to  its  cus- 
tom, receives  securities  as  a  special  deposit, 
is  liable  for  any  loss  thereof  occurring 
through  the  want  of  that  degree  of  care 
which  good  business  men  usually  exercise 
in  keeping  property  of  such  value.  Gray 
v.   Merriam,    148   111.   179,  35  N.   E.   810, 

32:  769 

78.  A  bank  holding  United  States  bonds 
as  collateral  security  is  liable  for  their 
am.ount  if  they  are  stolen  by  its  employee 
who  has  access  to  them,  after  the  manag- 
ing oflicer  of  the  bank  Knows  that  he  is 
speculating  on  the  board  of  trade,  and  ac- 
cepts his  statement  that  he  is  using  his 
own  mone}',  without  knowledge  that  he  has 
property  other  than  his  salary,  which  is 
$1,800  a  year.  Id. 

79.  Where,  upon  a  bank's  agreement  to 
transmit  money  to  a  person  in  a  distant 
city,  plaintiff  makes  with  it  a  special  de- 
posit of  the  amount  for  that  purpose,  and 
receives  a  letter  of  advice  directed  to  a  bank 
in  that  city,  to  the  effect  that  the  latter's 
account  is  credited  with  the  money  for  the 
use  of  the  one  to  whom  it  is  to  go,  plain- 
tiff may  recover  back  the  deposit  in  case 
the  correspondent  bank  fails  before  receiv- 
ing the  letter,  which  is  returned  with  the 
amount  unpaid;  and  the  fact  that  the 
money  is  credited  to  the  account  of  the 
correspondent  bank  on  the  books  of  the 
bank  of  deposit  is  immaterial.  Cutler  v. 
American  Exch.  Nat.  Bank,  113  N.  Y.  593, 
21  N.  E.  710,  4:  328 
Trusts. 

Gift  of  Bank  Deposit,  see  Gift,  20-24,  38, 

C8-65. 
Trust  in  Deposit  Generally,  see  Trusts,  10, 

15-22,   87,    156. 
See  also  infra,   101-104,  112,  113,   175,  260- 

272,  319-320,  379. 
For  Editorial  Notes,  see  infra,  VIII.   §§   9, 

20. 

80.  Money  deposited  in  a  bank  by  a  per- 
son  described   as   "manager"   is   subject   to 


his  checks,  even  if  the  bank  knows  that  it 
was  originally  obtained  from  other  persons 
on  a  certificate  of  deposit.  Leaphart  v. 
Commercial  Bank,  45  S.  C.  563,  23  S.  E. 
939,  33:  700 

81.  A  check  stating  that  it  is  for  "de- 
posit to  the  credit  of"  a  person  named, 
with  the  word  "Trustee"  added  to  his 
name,  is  an  explicit  notification  to  the  bank 
in  which  he  deposits  it  that  he  is  not  the 
actual  owner  of  the  money;  and  if  the 
bank  credits  it  to  his  individual  account, 
and  loss  ensues  to  the  trust  estate  by  rea- 
son of  his  drawing  out  the  fund  by  checks 
on  his  personal  account,  the  bank  is  liable 
for  participation  in  the  breach  of  trust. 
Duckett  v.  National  Mechanics*  Bank,  86 
Md.    400,    38    Atl.    983,  39:  84 

82.  A  ratification  by  a  trustee  of  the  act 
of  a  bank  in  placing  to  his  individual  cred- 
it a  check  which  showed  on  its  face  that 
it  was  due  to  him  as  trustee  cannot  re- 
lieve the  bank  from  liability  to  the  trust 
estate,  if  the  funds  are  lost  by  his  check- 
ing them  out  on  his  personal  account.     Id. 

83.  A  check  stating  that  it  is  "for  de- 
posit to  credit  of"  a  person  named,  without 
adding  the  word  "Trustee"  to  his  name,  al- 
though it  contains  a  further  clause  stat- 
ing that  it  is  "the  balance  of  purchase 
money  due  him  as  trustee,"  does  not  im- 
press the  funds  with  a  trust,  so  as  to  pre- 
vent a  bank  in  which  he  deposits  it  from 
crediting  the  check  to  his  individual  ac- 
count. Id. 

84.  Money  placed  in  a  bank  by  a  trustee 
merely  for  safe  keeping  until  an  invest- 
ment can  be  found,  although  at  a  small 
rate  of  intere.st  and  with  a  requirement  of 
two  weeks'  notice  for  withdrawal,  is,  when 
treated  by  the  bank  as  a  deposit,  and  so 
entered  on  its  books,  merely  a  deposit,  and 
not  a  loan  to  the  bank,  and  is  not  at  the 
trustee's  risk  if  he  has  used  due  care  in 
selecting  the  bank.  Re  Law's  Estate,  144 
Pa.  499,  22  Atl.  831,  14:  103 
Lien. 

Allegation  as  to,  see  Pleading,  311. 
See  also  infra,  247-249,  262. 
For  Editorial  Notes,  see  infra,  VTTI.  §  13. 
85-86.  No  equitable  lien  exists  upon  funds 
of  a  bank  in  the  hands  of  a  receiver,  in 
favor  of  one  who  deposited  money  in  the 
bank  for  a  special  purpose,  if  the  bank  was 
permitted  to  use  the  money  in  the  course 
of  its  regular  business,  so  that  no  part  of 
it  can  be  identified  in  the  receiver's  hands. 
Muhlenberg  v.  Northwest  Loan  &  T.  Co. 
26  Or.   132,  38  Pac.  932,  29:  667 

87.  A  bank  cannot  claim  a  lien  on  de- 
posits for  an  indebtedness  of  the  estate  of 
the  depositor  upon  unmatured  notes  given 
by  him  and  others,  when  an  action  at  law 
is  brought  by  his  administrator  for  the  de- 
posits. Gardner  v.  First  Nat.  Bank,  10 
Mont.    149,  25   Pac.   29,  10:45 

88.  Where  securities  are  delivered  to  a 
bank  specifically  to  protect  the  banker  in  a 
particular  transaction  or  series  of  trans- 
actions, the  bank  has  no  lien  upon  them 
for  any  other  purpose,  and  cannot  assert 
one    for    any    other   indebtedness,   whether 


BANKS,  IV.  a,  2. 


211 


arising  upon  general  account  or  otherwise, 
Armstrong  v.  Chemical  Nat.  Bank,  41  Fed. 
234,  6:  22G 

2.  Bank's  Control  over;  Application  of. 

Banks  Application  to  Payment  of  Indebt- 
edness to  It,  as  Act  of  Bankruptcy 
see  Bankruptcy,  8. 

Duress    in    Application    of,    see    Duress,    0. 

Set-Off  by,  or  against,  see  Set-Off  and 
Counterclaim.  11,  25,  44-64,  G6,  and 
also  infra,  VIII.  §§  13,  19,  21. 

See  also  infra,  314,  332. 

For  Editorial  Notes,  see  infra,  VIII.  §§  7, 
13,   19,  21. 

89.  The  amount  of  an  overdraft  upon  a 
bank  account  is  not  necessarily  the  sum 
drawn;  but  it  is  the  amount  drawn  less  the 
amount  to  which  the  drawer,  at  the  time,  is 
entitled  as  a  credit  balance  upon  his  ac- 
count. Armstrong  v.  Chemical  Nat.  Bank, 
41  Fed.  234,  6:  220 
Application  on  note  due  to  bank. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

263. 
Custom  as  to,  see  Custom,  18. 

90.  A  bank  to  which  a  check  is  presented 
by  a  third  person  receiving  it  in  the  usual 
course  of  business  cannot,  where  such  check 
constitutes  an  equitable  assignment  of  the 
fund,  appropriate  sueli  fund  after  such  pres- 
entation to  the  payment  of  a  note  neld  by  it 
against  the  depositor  and  refuse  to  pay 
the  check,  if  at  the  time  of  presentation  it 
has  taken  no  steps  to  appropriate  the  de- 
posit to  the  payment  of  the  note.  Niblack 
V.  Park  Nat.  Bank,  169  111.  517,  48  N.  E. 
438,  39:  159 

91.  A  bank  holding  an  overdue  note  of  a 
depositor  of  greater  amount  than  his  de- 
posit may  properly  refuse  to  pay  his  check, 
without  any  formal  appropriation  of  the  de- 
posit upon  the  note.  Mt.  Sterling  Nat.  Bank 
V.  Greene,  99  Ky.  262,  35  S.  W.  911, 

32:  568 
91a.  A  bank  having  money  to  the  credit  of 
the  maker  of  a  note  which  it  holds  is  not 
obliged  to  apply  the  money  thereon,  even 
if  it  may  have  the  right  to  do  so,  without 
the  consent  of  the  depositor.  Doctor  v. 
Riedel,  96  Wis.  158,  71  N.  W.  119,       37:  580 

92.  A  bank  is  not  bound  to  apply  to  the 
payment  of  a  note  held  by  it  the  deposit  ac- 
count of  the  first  indorser,  although  the  note 
was  made  for  his  accommodation,  and  he, 
and  not  the  apparent  maker,  is,  as  between 
themselves,  primarily  liable  on  it.  First 
Nat.  Bank  v.  Peltz,  176  Pa.  513,  35  Atl.  218, 

36:  832 
92a.  A  power  given  to  a  bank  by  one  who 
was  liable  with  others  upon  notes  held  by 
the  bank,  to  apply  his  deposits  to  the  pay- 
ment of  the  notes,  even  before  their  matu- 
rity if  the  bank  desired,  is  not  a  power  cou- 
pled with  an  interest,  but  ceases  if  not  ex- 
ercised before  the  death  of  the  depositor 
and  the  bank's  knowledge  thereof.  Gardner 
V.  First  Nat.  Bank,  10  Mont.  149,  25  Pac. 
29,  10:  45 

On  note  due  to  third  person. 

93.  A  bank  has  no  implied  authority  to 


pay  to  a  third  party  a  note  made  by  a  de- 
positor payable  at  its  place  of  business, 
simply  because  he  has  funds  there,  sudicient 
for  that  purpose,  in  the  absence  of  any 
course  of  dealing  or  previous  instructions 
so  to  apply  the  deposits.  Grissom  v.  Com- 
mercial Nat.  Bank,  87  Tenn.  350,  10  S.  W. 
774,  3:2/3 

94.  A  bank  which  in  good  faith  pays  a 
note  made  by  one  of  its  depositors,  payable 
.at  its  place  of  business,  and  against  which 
there  is  no  defense,  may  set  off  the  amount 
so  paid  against  the  balance  due  on  the  mak- 
er's account  although  the  payment  was  made 
without  notice  to,  or  express  authority 
from,  him.  Bedford  Bank  v.  Acoani,  125 
Ind.  584,  25  N.  E.  713,  9:  560 
On  note  on  which  depositor  is  surety. 

95.  A  bank  cannot  apply  money  due  to  a 
depositor  to  the  payment  of  a  note  upon 
which  he  is  a  surety,  in  the  absence  of  a. 
special  agreement  giving  it  the  right  to  do 
so.  Harrison  v.  Harrison,  118  Ind.  179,  20 
N.  E.  746,  4:  111 

96.  An  agreement  between  a  depositor  and 
the  bank,  authorizing  the  bank  to  charge 
him  with  the  amount  of  a  note  on  w*"ich  he 
was  surety,  although  the  actual  Jiitry  was 
not  made  at  the  time,  and  that  the  bank 
should  retain  the  note  and  collect  it  for  its 
benefit,  is  an  equitable  satisfaction  of  the 
note,  so  far  as  respects  the  depositor,  and 
makes  it  his  property,  and  he  is  entitled  to 
the  proceeds  thereof  when  collected  by  a  re- 
ceiver of  the  bank  after  it  has  become  insol- 
vent. Id. 
Deposits  by  partner. 

Estoppel  as  to  Overdraft,  see  Estoppel,  84. 

97.  The  deposit  of  a  partner  cannot  be 
applied  to  an  overdraft  of  the  firm,  al- 
though the  bank,  in  an  action  by  the  part- 
ner, might  set  -up  such  overdraft  as  a 
counterclaim,  Adams  v.  First  Nat,  Bank, 
113N.  C.  332,  18S.  E.  51.3,  23:111 
Deposit  by  agent  or  factor. 

For  Editorial  Notes,  see  infra.  VIII,  §  9, 

98.  A  bank  which  receives  from  an  agent 
for  deposit  in  his  own  name  the  money  of 
his  principal,  wif  Sout  notice  of  the  agency, 
is  protected,  in  applying  it  to  a  past-due 
debt  of  the  depositor,  to  the  same  extent 
as  in  paying  it  out  upon  his  checks,  when- 
ever such  application  is  authorized  by  the 
agent,  either  expressly  or  by  legal  implica- 
tion; and  such  authority  ordinarily  arises 
from*  the  making  of  a  deposit,  without 
other  directions,  where  the  debt  to  which  it 
is  applied  is  an  overdraft.  Kimmel  v.  Bean, 
68  Kan.  598,  75  Pac.  1118,  64:  785 

99.  A  bank  cannot  apply  funds  deposited 
by  a  factor  in  his  own  name  upon  a  claim 
held  by  it  against  him  individually,  after 
knowledge  that  he  is  insolvent  and  has  com- 
mitted an  r.ct  of  bankruptcy,  where  it  has 
the  means  of  knowing  that  the  funds  belong 
to  the  factor's  prinripal.  Interstate  Nat. 
Bank  v.  Claxton,  97  Tex,  569,  80  S,  W.  604, 

65:  820 
Deposit  by  a-'ministrator. 

100.  A  bank  account  kept  by  a  person  as 
administrator  cannot  be  applied  by  the 
bank  to  the  payment  of  a  check  drawn  by 


212 


BANKS,  IV.  a,  3. 


him  individually.     First  Nat.  Bank  v.  First 
Nat.  Bank,  58  uhio  St.  207,  50  N.  E.  723, 

41:  584 
Duty  as  to  trust  funds. 
See  also  supra,   80-84. 
For  Editorial  Notes,  see  infra,  VIII.  §  9. 

101.  A  bank  which,  at  the  request  of  the 
trustee,  has  knowingly  applied  a  trust  de- 
posit to  the  cancelation  of  his  individual 
note,  cannot  afterwards  maintain  a  suit 
against  him  on  the  note.  Sayre  v.  Weil,  94 
Ala.  4C6,  10  So.  546,  15:  544 

102.  An  agreement  by  a  bank  to  apply  a 
trust  deposit  in  cancelation  of  an  individual 
note  of  the  trustee  operates  to  destroy  the 
relation  of  debtor  and  creditor  between 
them,  although  no  entries  are  at  the  time 
made,  and  the  note  is  not  surrendered  up  or 
canceled.  Id. 

103.  A  bank  is  not  responsible  for  the  use 
of  trust  funds  made  by  a  trustee  unless  :t 
knowingly  participates  in  the  breach  of 
trust  or  profits  by  the  fraud.  Duckett  v. 
Nation<il  Mechanics'  Bank,  86  Md.  400,  38 
Atl.  983,  39:  84 

104.  A  bank  receiving  a  check  deposited 
and  indorsed  by  a  person  to  whom  it  was 
payable  as  administrator,  but  who  claims  to 
be  the  sole  heir  of  the  estate  and  deposits  it 
to  his  individual  credit,  cannot  appropriate 
a  part  of  the  fund  to  pay  his  individtial 
debts  to  the  bank.  American  Trust  &  Bkg. 
Co.  V.  Boone,  102  Ga.  202,  29  S.  E.  182, 

40:  250 

3.  Payment  of  Checks;  Forgeries, 
o.  In  General. 

As  to  Rights  and  Liabilities  on  Checics,  o^ 
Persons  other  than  Banks,  see  Checks. 

Presentation  of  Negotiable  Paper  for  Pay- 
ment, see  Bills  and  Notes,  IV.;  Checks, 
II. 

Bank's  Ricrht  to  Recover  Back  Amount  Paid, 
see  Parties,  9. 

See  also  supra,  80. 

For  Editorial  Notes,  see  infra,  VIII.  §§  10, 
11,  24. 

105.  A  bank  depositor  is  presumed  to  as- 
siirn  80  much  of  the  fund  which  he  has  on 
deposit  as  his  checks  call  for.  Raesser  v. 
National  Exch.  Bank.  112  Wis.  591.  88  N.  W. 
618,  56:  174 

106.  The  giving  of  a  check  on  a  bank  for 
the  whole  amount  of  a  deposit,  together  with 
the  mere  delivery  of  the  deposit  slip  to  an- 
other bank,  which  discounts  them,  do  not 
constitute  an  assignment  of  the  deposit. 
First  Nut.  Bank  v.  Clark.  134  N.  Y.  368.  32 
N.   E.   38.  17:  58f) 

107.  No  notice  or  demand  by  the  holder  of 
a  bnnk  check  can  impose  on  a  nonconsenting 
bank  any  duty  to  protect  his  e(iuitable 
rights,  or  any  trammels  upon  its  freedom 
in  paying  out  the  fund  to  others,  although 
the  check  operates  as  an  assignment  pro 
fanin  of  the  fimd  on  denosit.  Raesser  v. 
National  Exch.  Bank,  112  AMs.  591,  88  N.  W. 
618,  56: 174 

108.  A  check  drawn  upon  a  bank  is  an 
appropriation  to  the  holder  of  the  amount 


designated  in  the  check;  and  after  notice 
to  the  bank  of  the  drawing  of  the  check 
the  funds  cannot  be  drawn  out  by  the  draw- 
er. Fonner  v.  Smith,  31  Neb.  107,  47  IS.  W. 
632,  11:528 

109.  \Mien  a  bank  pays  its  depositor's 
check  which  has  been  given  for  a  vaiid  con- 
sideration, it  discharges  to  that  extent  all 
obligation  to  the  depositor,  and  the  latter 
has  no  rights  against  it.  Raesser  v.  Na- 
tional Exch.  Bank,  112  Wis.  591,  88  N.  W. 
618,  ^    56:  174 

110.  A  bank  on  which  a  check  is  dr.'iwn, 
after  payment  to  a  bona  fide  holder,  cannot 
recover  back  the  amount.  Germania  Bank 
V.    Boutell,    60   Minn.    189,    62   N.   W.    327, 

27:035 
Pa3dng  check  of  insane  person. 

111.  Payment  of  a  check  of  an  insane,  per- 
son who  had  been  lawfully  adjudged  insane 
by  a  court  in  another  state  will  render  a 
bank  liable  for  the  money,  although  it  did 
not  know  of  his  insanity.  American  Trust 
&  Bkg.  Co.  v.  Boone,  102  Ga.  202,  29  S.  E. 
182,  40-  250 
Individual  check  of  fiduciary. 

112.  Knowledge  by  a  bank  of  the  insolven- 
cy of"  factors  posse&oing  authority  to  deposit 
money  belonging  to  their  customers  in  their 
own  names  is  not  sufficient  to  charge  it 
with  liability  for  the  misappropriation  of 
such  funds  which  it  permits  to  be  checked 
out  in  favor  of  third  persons,  although  by 
the  exercise  of  care  it  might  have  known 
that  a  misappropriation  was  being  thereby 
effected.  Interstate  Nat.  Bank  v.  Claxton, 
97  Tex.  569,  80  S.  W.  604,  6a:  820 

113.  Knowledge  by  a  bank  of  facts  which 
would  enable  it  to  know  that  a  depositor 
holding  funds  in  a  fiduciary  relation  was 
violating  his  trust  does  not  impose  upon  it 
the  duty  of  instituting  an  inquiry  into  its 
customer's  financial  condition  for  the  pur- 
pose of  protecting  the  beneficiary,  or  charge 
it  with  participating  in  a  misuse  of  the  funds 
in  case  it  honors  the  checks  without  such  in- 
quiry. Id. 
Check  with  invalid  indorsement. 

114.  A  bank  has  sufficient  notice  of  the 
invalidity  of  an  indorsement  on  a  cashier's 
check  to  render  it  liable  for  paying  it  to 
the  indorsee,  where  it  knows  that  the  latter 
is  the  keeper  of  a  gambling  establishment, 
and  he  presents  the  check  the  day  after  it 
is  drawn,  before  the  regular  hour  for  opening 
the  bank,  and  the  indorser  is  present  at  the 
time,  and  repeatedly  protests  against  the 
payment  of  the  check,  and  demands  its  can- 
celation. Drunkall  v.  Movius  State  Bank, 
11  N.  D.  10,  88  N.  W.  724,  57:  341 

115.  The  payee  of  a  cashier's  cheek  in- 
dorsed in  payment  of  chips  to  be  used  in 
gambling  may  enforce  payment  thereof 
against  the  maker,  notwithstanding  the 
check  has  already  been  paid  to  the  indorsee, 
where  payment  was  made  to  the  latter  after 
notice  of  the  invalidity  of  the  consideration 
for  the  indorsement.  Id. 
Effect  of  drawer's  death. 

See  also  infra,  378. 

116.  A  banK  to  which  is  presented  a  check 
for  a  greater  sum  than  the  drawer  has  on 


BANKS.  IV.  a,  3. 


213 


deposit,  after  it  has  notice  of  the  drawer's 
death,  and  "which  thereupon  refuses  payment 
and  protests  the  check,  has  no  right  to  sub- 
sequently apply  the  deposit  upon  the  check. 
Roden  v.  State  Nat.  Bank,  112  Ky.  310,  65 
S.  W.  617,  56:  178 

117.  Where  a  bank  check  works  an  assign- 
ment pro  tanto  of  the  fund  on  deposit,  the 
death  of  the  depositor  will  not  revoke  the 
authority  of  the  bank  to  pay  a  check  which 
has  been  given  for  a  valuable  consideration 
under  circumstances  which  make  it  irrevoc- 
able as  to  the  assi<?nee.  Raesser  v.  National 
Exeh.  Bank,  112  Wis.  591,  88  N.  W.  618, 

56:  174 
Liability  for  dishonoring  check. 
Punitive  Damages  for,  see  Damages,  54. 
Measure  of  Damages  for,  see  Damages,  164- 

167,  572. 
Presumption  of  Damage  from,  see  Evidence, 

744. 
Limitation  of  Action  for,  see  Limitation  of 

Actions,  202. 
Allegation  as  to,  see  Pleading,  241,  311. 
Venue  of  Action  for,  see  Venue.  6,  7. 
See  also  infra,  272. 

118.  Damages  are  recoverable  against  a 
bank  for  refusal  to  pay  the  check  of  a  cus- 
tomer who  has  sufficient  funds  in  the  bank 
applicable  to  the  check.  Mt.  Sterling  Nat. 
Bank  v.  Greene,  99  Ky.  262,  35  S.  W.  911, 

32:  568 

119.  The  refusal  to  honor  a  check  when 
there  are  funds  in  a  bank  against  which  it 
is  drawn  gives  the  drawer  a  right  of  action 
against  the  bank,  if  he  is  a  trader  or  mer- 
chant. Svendsen  v.  State  Bank,  64  Minn. 
40,  05  N.  W.  1086,  31:  552 

120.  luere  is  an  implied  promise  on  the 
part  of  a  bank  to  pay  checks  drawn  by  its 
depositors  by  whomsoever  presented,  sub- 
ject to  the  limitation  that  the  total  amount 
drawn  shall  not  exceed  the  amount  of  the 
deposits.  Fonner  v.  Smith,  31  Neb.  107,  47 
N.  W.  632,  U:bz8 

121.  The  holder  of  a  check  drawn  upon 
funds  in  a  bank,  and  presented  before  such 
funds  are  otherwise  drawn  out,  may  sue  the 
bank  lor  refusal  to  pay  such  check.         Id. 

122.  The  holder  of  a  check  has  no  contract 
with  the  uank  on  which  it  is  drawn,  and  no 
legal  right  to  exact  its  payment.  National 
Bank  of  New  Jersey  v.  Berrall  (N.  J.  Err. 
&  App.)  70  N.  J.  L.  757,  58  Atl.  189,      66:  593 

123.  A  check,  although  it  constitutes  an 
assignment  of  a  fund  on  deposit,  as  between 
the  drawer  and  drawee,  does  not  charge  tLe 
bank  in  lavor  of  the  paya-?,  if  the  deposit  is 
otherwise  lawfully  appropriated  before  the 
presentment  of  the  check,  or  any  good  equiv- 
alent thereto.  Bank  of  Antigo  v.  Union 
Trust  Co.  149  111.  343,  36  N.  E.  1029, 

23:  611 

124.  The  holder  of  an  unaccepted  check 
cannot  maintain  an  action  against  the  bank 
for  refusal  to  pay  it,  although  there  stands 
to  the  credit  of  the  drav/er  on  the  bank 
books  a  sum  more  than  sufficient  to  meet  it. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Metropolitan 
Nat.  Bank,  54  Ohio  St.  60,  42  N.  E.  700, 

31;  653 


125.  The  acceptance  of  a  check  is  neces- 
sary in  order  to  give  the  holder  a  right 
of  action  thereon  against  the  bank.  Pickle 
V.  People's  Nat.  Bank,  88  Tenn.  380,  12  S. 
W.    919,  7:93 

126.  The  acceptance  of  a  check,  so  as  to 
give  a  right  of  action  to  the  payee,  ib  in- 
ferred irom  the  retention  of  the  check  by 
the  bank,  and  a  subsequent  charge  of  the 
check  to  the  drawer,  although  it  was  pre- 
sented by  and  payment  made  to  an  unau- 
thorized person.  Id. 

127.  The  payee  of  a  check  which  never 
came  into  his  hands,  but  which  was*  paid 
to  some  person  who  had  no  right  to  collect 
it,  or  was  left  with  the  bank  to  be  credited 
to  him,  and  credit  not  given  through  mere 
oversight  by  suing  the  bank  upon  it  ratifies 
the  receipt  of  the  check  from  the  drawer,  as 
if  it  had'been  received  by  his  agent  for  his 
use  and  benefit.  Id. 

128.  A  stipulation  stamped  on  the  face  of 
a  check,  that  it  will  not  be  paid  if  present- 
ed through  a  specified  agency,  may  be  up- 
held to  prevent  any  right  of  action  on  the 
check  by  the  prohibited  agency.  Commer- 
cial Nat.  Bank  v.  First  Nat.  Bank,  118  N. 
C.  783,  24  S.  E.  524,  32:712 
Stopping  payment. 

As   against   Bona    Fide    Purchaser    of   Bill, 

see  Bills  and  Notes,  198. 
See  also  ii'/'-a,  239-241. 

129.  After  a  check  is  given,  the  depositor 
cannot,  in  Illinois,  by  arrangement  with  the 
bank,  prevent  the  application  of  future  de- 
posits to  its  payment.  Gage  Hotel  Co.  v. 
Union  Nat.  Bank,  171  111.  531,  49  N.  E.  420, 

39:  479 

130.  Payment  of  a  check  given  after  full 
opportunity  for  investigation  in  accordance 
with  a  storage  contract  requiring  a  return 
of  the  property  or  "if  it  is  destroyed  to  pay 
its  value,"  under  the  belief  that  the  prop- 
erty had  been  stolen,  may  be  stopped  and 
the  settlement  avoided  as  made  under  a  mu- 
tual mistake  of  fact,  where  the  property  is 
discovered  in  the  storehouse  the  day  after 
the  chec':  is  given.  State  Savings  Bank  v. 
Buhl,  123  Mich.  193,  88  N.  W.  471,     50:  944 

131.  A  cashier's  check,  being  merely  .i  bill 
of  exchange  urawn  by  a  bank  upon  i;.self, 
and  accepted  in  advance  by  the  act  oi  its 
issuance,  is  not  subject  to  countermand  like 
an  ordinary  check;  and  the  relations  of  the 
parties  to  such  an  instrument  are  anal- 
ogous to  those  of  the  parties  to  a  negotiable 
promissory  note  payable  on  demand.  Drink- 
all  v.  Movius  State  Bank,  11  N.  D.  10.  88 
N.  W.  724,  ■  57:341 

132.  A  bank  which  receives  in  the  ordinary 
course  of  business  a  check  drawn  upon  it, 
presented  by  a  bona  fide  holder,  who  is  with- 
out notice  of  the  fact  that  payment  there- 
of has  been  stopped,  and  pays  the  amount 
thereof  to  such  holder,  cannot  afterwards 
recover  back  the  money  as  paid  by  mistake, 
on  the  ground  that  payment  of  the  check 
had  been  countermanded  by  the  drawer. 
National  Bank  of  New  Jersey  v,  Berrall 
(N.  J.  Err.  &  App.)  70  N.  J.  L.  757,  58  Atl. 
189,  66:  599 


214 


BANKS,  IV.  a,  3. 


6.  Forgeries. 
(1)  In  General. 


By  Savings  Bank,  see  infra,  369-377a. 

Conclusiveness  of  Finding  as  to  Bank's  Neg- 
ligence, see  Appeal  and  Error,  838. 

Rights  and  Liabilities  as  to  Parties  Other 
than  Bank,  see  Checks,  V. 

Estoppel  of  Depositor,  see  Estoppel,  229-231. 

Imputing  Agent's  Knowledge  of,  to  Deposi- 
tor, see  Notice^  46-50. 

Counterclaim  by  Bank  Paying,  see  Set-Oflf 
and  Counterclaim,  11. 

Question  for  Jury  as  to,  see  Trial,  490,  491. 

See  also  infra,  262. 

For  Editorial  Notes,  see  infra,  Vill.  §  24. 

133.  The  forgery  of  an  indorsement  on  a 
forged  check  will  not  make  a  good-faith 
holder  liable  to  the  drawee,  which-  has  paid 
the  check.  First  Nat.  Bank  v.  Marshall- 
town  State  Bank,  107  Iowa,  327,  77  N.  W. 
1045,  44:  131 

134.  Negligence  of  a  bank  which  first  cash- 
es a  forged  check  and  puts  it  in  circulation 
cannot  be  imputed  to  a  subsequent  good- 
faith  holder  of  the  check,  so  as  to  make  him 
liable  to  the  drawee,  from  whom  he  has  ob- 
tained payment  of  the  check.  Id. 

135.  In  balancing  an  account  between  a 
bank  and  its  depositor,  whose  clerk  has 
forged  checks  which  were  cashed  by  the 
bank,  when  the  vouchers  are  lost  so  that  the 
stubs  of  the  checks  are  relied  on  to  show  the 
amount  for  which  the  checks  were  drawn, 
the  court  is  not  authorized  to  charge  the 
bank  for  the  whole  amount  of  a  check  for 
which  there  is  a  stub  corresponding  in  num- 
ber but  not  in  amount,  unless  it  is  shown 
that  the  depositor  did  not  owe  money  or 
draw  checks  for  the  amount  expressed  in 
the  stubs.  First  Nat.  Bank  v.  Allen,  100 
Ala.  476,  14  So.  335,  27:426 
Recovery  back  by  drawee  of  amounts  paid. 
See  also  infra,  142,  145,  166-168. 

136.  The  drawee  bank  which  pays  the 
good-faith  holder  of  a  forged  check  cannot 
recover  back  the  money  paid.  First  Nat. 
Bank  v.  Marshal Itown  State  Bank,  107  Iowa, 
327,  77  N.  W.  1045,  44:  131 

137.  Payment  by  the  drawee  of  forged 
checks  made  payable  to  a  fictitious  person 
to  one  who  cashed  them  upon  an  indorse- 
ment purporting  to  be  that  of  the  payee, 
without  requiring  identification  of  the  one 
to  whom  payment  was  made,  will  not  pre- 
vent his  recovering  back  the  money  so  paid, 
where  he  was  ignorant  of  the  facts,  and 
relied  upon  the  indorsement  of  the  one  who 
cashed  the  checks;  and  the  latter  will  not 
be  placed  in  a  worse  position  by  the  recovery 
than  he  would  have  been  had  the  checks  not 
been  paid.  Canadian  Bank  of  Commerce  v. 
Bingham,  30  Wash.  484,  71  Pac.  43,    GO:  955 

138.  Recovery  by  the  payor  of  a  forged 
check  will  not  be  permitted  under  Pa.  act 
1849,  §  10,  providing  for  recovery  of  money 
paid  on  forged  signatures,  if  the  check  was 
paid  and  apparently  dismissed  from  further 
attention  until  five  days  later,  when  the 
payee,  after  parting  with  the  funds,  started 
an  investigation  which  disclosed  the  forgery. 


Iron  City  Nat.  Bank  v.  Fort  Pitt  Nat.  Bank, 
159  Pa.  46,  28  Atl.  195,  23:  615 

139.  Where  a  bank  accepts  and  cashes  a 
check  drawn  on  a  bank  in  another  county, 
to  whidh  the  names  of  the  drawer  and  payee 
have  been  forged,  without  requiring  any 
identification  of  the  parties  to  whom  pay- 
ment is  made,  the  bank  on  which  it  purports 
to  have  been  drawn,  and  by  which  it  is  paid 
on  its  being  transmitted  by  tne  former  bank, 
can  recover  .back  the  amount  so  paid.  Peo- 
ple's Bank  v.  Franklin  Bank,  88  Tenn.  299, 
12  S.  W.  716,  6:  724 

140.  A  bank  which  pays  forged  checks  pur- 
porting to  have  been  drawn  by  one  of  its 
depositors,  to  other  banks  which  had  in  good 
faith  advanced  money  on  them  to  the  forger, 
must,  as  between  itself  and  the  other  banks, 
bear  the  loss, — especially  where  the  depos- 
itor lived  near,  and  the  checks  continued  to 
be  presented  and  paid  for  several  months  be- 
fore the  forgery  was  discovered.  Deposit 
Bank  v.  Fayette  Nat.  Bank,  90  Ky.  10,  13 
S.  W.  339,  7:  849 
Drawee's  presumed  knowledge  of  drawer's 

signature. 

141.  The  drawee  of  a  check,  draft,  or  bill 
of  exchange  is  held  to  know  the  signature 
of  the  drawer,  and  makes  payment  in  case 
of  forgery  at  his  own  peril,  unless  the  rule 
is  modified  by  local  custom.  First  Nat. 
Bank  v.  First  Nat.  Bank,  58  Ohio  St.  207. 
50  N.  E.  723,  41 :  584 

142.  Indorsing  a  draft  "For  collection" 
does  not  guarantee  the  signature  of  the 
drawer  as  between  the  indorser  and  drawee, 
so  as  to  relieve  the  latter  of  its  obligation 
to  know  such  signature,  and  entitle  it  to 
recover  back  the  amount  paid  in  case  the 
signature  proves  to  be  a  forgery.  North- 
western Nat.  Bank  v.  Bank  of  Commerce, 
107  Mo.  402,  17  S.  W.  982,  15:  102 

143.  An  indorsement  of  a  check,  draft,  or 
bill  of  exchangfe,  "For  collection,"  by  one 
other  than  the  payee,  guarantees  the  gen- 
uineness of  the  names  of  the  indorsers,  but 
not  that  of  the  drawer.  First  Nat.  Bank  v. 
First  IN  at.  Bank,  58  Ohio  St.  207,  50  N.  E. 
723,  '  41 :  584 

144.  Presentation  for  payment  of  a  check 
by  a  bank  which  is  the  indorsee  for  collec- 
tion does  not  justify  the  drawee  bank  in 
relaxing  its  vigilance  in  determining  whether 
or  not  the  name  of  the  drawer  is  genuine.     Id. 

145.  The  rule  that  a  drawee  is  presumed 
to  know  his  drawer's  signature,  and  hence 
cannot  recover  back  money  paid,  through  a 
mistake  of  fact,  upon  a  bill  to  which  the 
drawer's  signature  was  forged,  is  not  avail- 
able in  favor  of  a  holder  wno,  by  his  own 
negligence,  contributed  to  the  success  of  the 
fraud  practised,  and  whose  conduct  had  a 
tendency  to  mislead  the  drawee,  who  was 
himself  free  from  fault.  Woods  v.  Colony 
Rank,  114  Ga.  683,  40  S.  E.  720,  56:  929 
Duties  and  liabilities  of  depositor. 
Amount    Recoverable    from    Depositor,    see 

Damages,  105. 
Question  for  Jury  as  to,  see  Trial,  493. 
See  a!so  infra,  174-177. 
For  Editorial  Notes,  see  infra,  VIII.  §  24. 

146.  A  depositor's  procurement  of  a  rub- 


BANKS,  IV.  a. 


815 


ber  stamp  which  will  make  a  facsimile  of 
his  signature,  of  which  tne  bank  has  no 
notice,  does  not,  in  the  absence  of  his  negli- 
gence, make  him  liable  for  the  loss  occa- 
sioned by  payment  of  his  deposit  on  forged 
checks  made  by  one  who  had  unlawfully  and 
clandestinely  obtained  the  stamp  and  used 
it  in  forging  checks.  Robb  v.  Pennsylvania 
Co.  for  ins.  on  Lives,  etc.  86  Pa.  456,  4o 
Atl.  969.  41-J-W5 

147.  A  bank  depositor  will  be  held  respon- 
sible to  the  bank  for  failure  to  impart  to  it 
knowledge  of  forgeries  of  checks  possessed 
by  his  clerk,  if  he  intrusts  to  his  clerk  the 
duty  of  examining  the  vouchers,  although 
the  clerk  deceives  him  and  keeps  him  in 
ignorance  of  the  forgeries.  First  Nat.  Bank 
V.  Ahen,  100  Ala.  476,  14  So.  335,        27:  426 

148.  A  depositor  owes  to  the  bank  the 
duty  of  examining  his  checks  within  a  rea- 
sonable time  after  they  are  returned  to  him, 
in  order  to  discover  and  give  notice  of  any 
forgery.  Janin  v.  London  &  S.  F.  Bank,  92 
Cal.  14,  27  Pac.  1100,  14:  320 

149.  A  depositor  owes  the  bank  the  duty 
to  exercise  reasonable  care  to  verify  the 
vouchers  returned  by  the  bank  on  balancing 
the  account  by  the  record  of  issued  checks, 
if  he  has  kept  one.  Critten  v.  Chemical 
Nat.  Bank,  171  N.  Y.  219,  03  N.  E.  969, 

57:  529 

150.  A  bank  depositor  owes  to  the  bank 
the  duty  of  examining  returned  vouchers 
and  reporting  forgeries  to  the  bank.  First 
Nat.  Bank  v.  Allen,  100  Ala.  476,  14  So.  335, 

27:426 

151.  In  case  a  bank  depositor  fails  to  no- 
tify the  bank  of  forged  checks  returned  in 
his  vouc-'hers,  the  bank  is  entitled  to  hold 
him  liable  for  damages  caused  to  it  by  such 
failure.  Id. 

152.  A  depositor  who,  by  negligence  in 
failing  to  detect  forgeries  among  the  vouch- 
ers returned  by  the  bank,  ana  give  the  bank 
notice  thereof,  causes  loss  to  the  bank,  ei- 
ther by  enabling  the  forger  to  repeat  his 
fraud,  or  by  depriving  the  bank  of  an  oppor- 
tunity to  obtain  restitution,  will  be  responsi- 
ble for  the  damage  caused  by  his  default. 
Critten  v.  Chemical  Nat.  Bank,  171  N.  Y.  219, 
63  N.  E.  969,  57 :  529 

153.  By  failing  to  discover  forgeries 
among  the  vouchers  returned  by  the  bank 
on  balancing  the  depositor's  account,  and  to 
notify  the  bank  thereof,  the  depositor  does 
not  adopt  the  checks  as  genuine,  ratify  their 
payment,  or  estop  himself  from  asserting 
that  they  are  forgeries.  Id. 

154.  A  depositor's  delay  in  returning  a 
forged  check  sent  him  by  the  bank,  which 
had  paid  it  and  charged  it  up  to  his  account, 
or  in  giving  notice  of  the  forgery  after  he 
discovers  it,  will  not  be  a  defense  to  his  ac- 
tion against  the  bank  to  recover  the  amount 
©f  the  check,  unless  the  bank  was  injured  by 
the  delay.  Janin  v.  London  &  S.  F.  Bank. 
92  Cal.  14,  27  Pac.  1100,  14:  320 


(2)  Altered  Checks. 

Bank  Loaning  Customer's  Money  on  Raised 
Collateral,  see  infra,  292. 

Imputing  Agent's  Knowledge  as  to,  to  De- 
positor, see  Notice,  47,  48. 

See  also  infra,  250,  251,  369-377. 

155.  A  bank  which  pays  to  a  clerk  of  the 
drawer  a  plainly  altered  check  without  re- 
quiring an  explanation  of  the  alteration 
from  his  employer  cannot  throw  the  loss 
occasioned  by  subsequent  payment  of  a  ser- 
ies of  such  checks  upon  the  emp.oyer,  on  the 
ground  that  he  negligently  failed  to  detect 
the  frauds  when  the  vouchers  were  returned 
to  him.  Critten  v.  Chemical  Nat.  Bank,  171 
N.  Y.  219,  63  N.  E.  909,  57:  529 

150.  Mere  presentation  of  a  check  for  pay- 
ment by  a  bank,  which  has  indorsed  upon 
it  a  restrictive  indorsement,  does  not  con- 
stitute a  warranty  that  it  is  what  it  pur- 
ports to  be,  and  has  not  been  altered  from 
the  form  in  which  it  was  originally  drawn, 
when  Dy  statute  a  contract  of  sale  does  not 
imply  a  warranty  except  as  provided  by  the 
statute,  which  provides  that  the  seller  of  a 
note  merely  warrants  that  he  has  no  knowl- 
edge of  defects.  Crocker-Woolworth  Nat. 
Bank  v.  Nevada  Bank,  139  Cal.  564,  73  Pac. 
456,  03:  245 

Negligence  of  depositor. 
Burden  of  Proving,  see  Evidence,  597a. 
See  also  siipra,  155. 

157.  Whether  or  not  the  drawer  of  a  check 
was  negligent  in  signing  it  in  the  condi- 
tion in  which  it  was  prepared  is  a  question 
of  fact  to  be  determined  largely  by  an  in- 
spection of  the  check  itself.  Critten  v. 
Chemical  Nat.  Bank,  171  N.  Y.  219,  63  N.  E. 
969,  57:  529 

158.  The  drawer  of  a  check  is  not  buid  to 
prepare  it  so  that  no  one  else  can  success- 
fully tamper  with  it,  to  charge  the  bank 
with  the  loss  in  case  it  pays  it  after  its 
amount  has  been  fraudulently  raised.         Id. 

159.  The  drawer  of  a  check  owes  no  duty 
to  detect  a  fraudulent  alteration  of  it  to  a 
bank  in  which  it  is  deposited  for  collection, 
and  to  which  the  proceeds  are  paid  by  the 
drawee.  Id. 

(3)  Forged  Indorsements. 

Drawee's  Duty  to  Pay  One  Holding  under 
Spurious  Indorsement,  see  Bills  and 
Notes,  214,  215. 

Rights  and  Liabilities  as  to  Persona  Other 
than  Bank,  see  Checks,  46-49. 

Imputing  Agent's  Knowledge  as  to,  to  De- 
positor, see  Notice,  49. 

See  also  supra,  100. 

160.  The  liability  of  a  bank  to  its  deposi- 
tor is  not  avoided  by  payment  of  money 
upon  his  check  to  a  person  who  forges  the 
name  of  the  pavee.  Atlanta  Nat.  Bank  v. 
Burke,  81  Ga.  597,  7  S.  E.  738,  2:  96 

161.  A  drawee  bank  which  pays  a  draft 
relying  on  a  forged  indorsement  thereon  of 
the  name  of  a  fictitious  person  to  whom  the 
payee  indorsed  it  innocently  as  the  result 
of  a  fraud  practised  upon  him  is  not  there- 


216 


BANKS.  IV.    a. 


by  relieved  from  liability  to  the  payee. 
Chisra  V.  First  l^at.  Bank,  96  Tenn.  641,  i>6 
S.W.  387,  32:778 

162.  A  bank  cannot  justify  the  payment 
of  a  check  on  the  indorsement,  by  one  who 
procured  it  by  representing  himself  as  an- 
other, of  the  latter's  name, — at  least  under 
a  statute  declaring  an  indorsement  to  be 
wholly  inoperative  which  is  made  without 
the  authority  of  the  person  whose  signature 
it  purports  to  be.  Tolman  v.  American 
Nat.  Bank,  22  R.  I.  462,  48  Atl.  480,    52:  877 

163.  A  collectin*^  bank  which  as  indorser 
of  checks  is  called  on  by  the  drawee  bank 
to  refund  the  proceeds  because  of  the  forgery 
of  prior  indorsements  cannot  throw  the  loss 
on  the  drawee  bank  by  asserting  the  forgery 
of  the  signature  of  the  drawer  also,  since 
estoppel  to  deny  the  drawer's  signature  is 
mutual.  First  Nat.  Bank  v.  Northwestern 
Nat.  Bank,  152  111.  296,  38  N.  E.  739,    26:  289 

164.  The  fact  that  the  forger  of  indorse- 
ments on  checks  has  made  good  the  amount 
to  the  payee  constitutes  no  defense  to  the 
bank  which  has  paid  out  money  on  the 
checks,  in  an  action  by  the  depositor  on  his 
deposit  money  founded  upon  the  checks, 
where  he  has  not  profited  by  such  payment. 
Shipman  v.  Bank  of  the  State  of  New  York, 
126  N.  Y.  318,  27  N.  E.  371,  12:  791 

165.  Checks  drawn  by  the  cashier  of  a 
bank  in  its  name  upon  another  bank  in 
which  it  has  a  deposit,  for  the  purpose  of 
speculating  in  stocks  without  the  knowl- 
edge of  the  officers  of  the  bank,  the  names  of 
the  payees  being  actual  customers  of  the 
bfink,  but  such  customers  having  no  knowl- 
edee  of  the  checks  or  connection  with  the 
trarsaction,  are  subject  to  the  same  rule  as 
if  fictitious  names  were  selected  and  used; 
and  the  payment  by  the  drawee  bank  of  such 
checks,  upon  indorsements  made  by  such 
cashier,  is  "'ood  as  against  the  bank  of  which 
he  is  an  officer.  Philiins  v.  Mercantile  Nat. 
Bank.  140  N.  Y.  556,  35  N.  E.  982,  23:  584 
Recovery  back  by  drawee  of  amounts  pail. 
See  nisi  supra.  136-140;  infra,  252. 

166.  The  drawee  of  a  draft  upon  which 
the  indorsement  of  the  payee  and  his  sig- 
nature to  a  bill  of  sale  on  the  back,  which 
is  the  consideration  of  the  acceptance  of  the 
instrument,  are  forged,  who  pays  it  in  ig- 
norance of  the  forgery,  upon  its  presentation 
bearing  the  indorsement  of  the  collecting 
bank,  may  recover  back  the  proceeds  from 
the  bank  as  money  paid  under  mistake. 
La  Fayette  v.  Merchants'  Bank,  73  Ark.  561, 
84  S.  W.  700,  68:  231 

167.  The  rule  that  the  drawee  of  a  draft 
upon  which  the  indorsement  of  the  payee 
was  torgod  cannot  recover  back  money  paid 
to  the  holder  where  the  forgery  was  com- 
mitted by  the  drawer  does  not  apply  where 
the  draft  itself  contains  evidence  that  it 
was  not  drawn  upon  funds  of  the  drawer 
in  the  hands  of  the  drawee,  but  was  accept- 
ed and  paid  on  the  faith  of  property  to  be 
delivered  to  the  drawee.  Id. 

168.  Failure  to  discover  that  the  indorse- 
ment of  the  payee  on  a  draft  was  a  forgery, 
and  to  notify  the  holder,  to  whom  its  pro- 
ceeds had  been  paid,  for  five  or  six  months, 


is  not  such  negligence  on  the  part  of  the 
drawee,  in  the  absence  of  anything  to  ex- 
cite his  suspicion,  as  to  prevent  his  recover- 
ing back  the  payment;  at  least  if  the  hold- 
er is  not  shown  to  have  been  injured  by  the 
delay.  Id. 

Bank's  duty  as  to  discovering  genuineness. 
See  also  infra,  304. 

169.  Accepting  a  check  does  not,  even  as 
to  subsequent  bona  fide  holders,  admit  the 
genuineness  of  any  indorsement  which  may 
be  on  it  at  the  time.  First  Nat.  Bank  v. 
Northwestern  Nat.  Bank,  152  III.  296,  38 
N.  E.  739,  26:  289 

170.  The  drawee  bank  which  pays  a  check 
does  not  thereby  admit  the  genuineness  of 
any  indorsement  on  it,  although  it  does  ad- 
mit the  genuineness  of  the  drawer's  signa- 
ture. Id. 

171.  The  genuineness  of  the  last  indorse- 
ment on  a  check  does  not  relieve  a  bank 
from  looKing  to  the  genuineness  of  preced- 
ing indorsements.  Atlanta  Nat.  Bank  v. 
Burke,  81  Ga.  597,  7  S.  E.  738,  2:  96 

172.  In  the  absence  ot  a  course  of  dealing 
or  understanding  to  the  contrary  between 
the  parties,  the  duty  of  a  banker  is,  in  all 
cases,  to  pay  to  the  person  named  or  his  or- 
der, where  the  terms  of  the  check  are  such; 
and  he  may  and  should  withhold  payment 
until  fully  satisfied  as  to  the  genuineness  of 
the  indorsement.  Armstrong  v.  Pomeroy 
Nat.  Bank,  46  Ohio  St.  512,  22  N.  E.  866, 

6:  625 

173.  Payment  of  checks  stolen  from  the 
depos'tor  without  negligence  on  his  part,  by 
his  clerk,  who  forged  the  indorsements  of  the 
payees'  names,  constitutes  no  defense  to  the 
bank  against  an  action  by  the  depositor  for 
its  deposit, — especially  where  the  bank  m<ide 
no  inouirv  as  to  the  eenuineness  of  the  in- 
dorsements, but  relied  upon  the  responsibil- 
ity of  the  persons  presenting  the  checks  for 
navment.  Shinman  v.  Bank  of  the  State  of 
New  York,  126  N.  Y,  318,  27  N,  E.  371, 

12:  791 
Duty  and  liability  of  depositor. 
See  also  supra.  146-154. 
For  Editorial  Notes,  see  infra,  VIII.  §  24. 

174.  A  depositor  has  the  right  to  assume 
when  checks  are  returned  to  him  bv  the 
bank  that  it  has  ascertained  the  genuineness 
of  indorsements  thereon.  Shipman  v.  Bank 
of  the  State  of  New  York,  126  N.  Y.  318, 
27  N.  E.  371,  12:  791 

175.  The  entry  in  a  depositor's  bank  book, 
which  is  returned  to  him,  of  the  payment  of 
a  check  to  the  payee  nimed  therein,  puts  the 
depositor  under  no  obligation  to  look  to  see 
whether  the  check  was  paia  upon  a  forged 
indorsement  or  not.  Atlanta  Nat.  Bank  v. 
Burke,  81  Ga.  597,  7  S.  E.  738,  2:  96 

176.  A  bank  depositor  is  not  precluded 
from  holding  the  bank  liable  for  cashing  his 
check  on  a  forged  indorsement,  by  the  fact 
that  a  note  and  deed  forged  in  the  same 
manner  had  been  palmed  off  on  the  depos- 
itor nimself.  Id. 

177.  Vvhere,  by  the  fraud  of  a  third  per- 
son, a  depositor  of  a  bank  is  induced  to  draw 
his  check  payable  to  a  nonexisting  person  or 
order,  the  drawer  being  in  ignorance  of  the 


BANKS,  IV.  b,  1. 


217 


fact  and  intending  no  fraud,  the  bank  on 
which  the  check  is  so  drawn  is  not  author- 
ized to  pay  it  and  charge  the  amount  or 
the  account  to  its  customer,  on  the  indorse- 
ment of  the  party  presenting  it,  although  it 
appears  to  have  been  previously  indorsed  by 
the  party  named  as  payee.  Such  mdorse- 
ment  is,  in  effect,  a  forgery,  and  the  pay- 
ment thereon  by  the  bank  confers  no  right 
on  it  as  against  the  drawer  of  the  check. 
Armstrong  v.  Pomeroy  Nat.  Jjank,  46  Ohio 
Gt.  512,  22  N.  E.  866,  6:  625 

(4)  Certificate  of  Deposit. 

Demand  for  Payment  of,  to  Bind  Indorser, 
see  Bills  arid  Notes,  172. 

Transfer  of,  by  Public  Officer,  see  Bonds, 
49.   85. 

Parol  Evidence  as  to,  see  Evidence,  1181. 

Opininn  Evidpnce  as  to,  see  Evidence,  1401. 

Personal  Liability  of  Administrator,  see  Ex- 
ecutors and  Administrators,  84. 

Preference  of,  against  Deceased  Banker's 
Estnte.  see  Executors  and  Administra- 
tors. 151. 

Limitatiin  of  Action  on,  see  Limitation  of 
Actions.  88,  225,  226. 

Set-Off  Against,  see  Set-Off  and  Counter- 
claim, 25,  50. 

Finding  as  to,  see  Trial.  876. 

See  also  sunra.  18,  73;  infra,  222,  223,  309, 
32?.  388,  389. 

For  Editorial  Notes,  see  infra,  VIIL  §  12. 

178.  A  deposit  of  money  with  the  manager 
of  a  "depositors'  co-operative  association" 
on  receipt  of  a  certificate  stipulating  that 
the  money  shall  be  repaid  at  an  agreed  time, 
with  a  specified  rate  of  interest,  does  not 
create  a  trust,  but  a  loan.  I.eaohart  v.  Com- 
mercial  Bank,  45    S.  C.   563,  23   S.   E.   939. 

33:  700 

179.  An  ordinary  deposit  slip  showing  the 
amount  of  a  derwsit  in  a  bank,  although 
S'^ned  by  the  cashier,  is  not  a  certificate  of 
deposit,  but  is  a  mere  receint.  First  Nat. 
Bank  v.  Clark,  134  N.  Y.  368,  32  N.  E.  38, 

17:  580 

180.  Merely  adding  the  word  "surety"  lo 
his  signature,  by  one  who  si9-ns  his  name  on 
the  back  of  a  certificate  of  deposit  in  order 
to  induce  a  depositor  to  take  such  certifi- 
cate in  place  of  a  former  one  instead  of 
withdraw'uT  his  monev.  does  not  prevent 
him  from  being  held  liable  as  m^^ker  instead 
of  as  in'ors-^r.  Ballard  v.  Burton,  64  Vt. 
387.  24  Atl.  769,  16:  664 

181.  Forbearing  to  withdraw  monev  from 
a  bank  tor  a  reasonable  time  although  with- 
out any  definite  time  agreed  upon,  is  a 
sufl^^ient  consideration  for  the  signing  by  a 
third  person  as  surety  of  another  certificate 
of  denosit  in  place  of  a  former  one  which 
is  surrendered.  Id. 

182.  The  return  of  a  certificate  of  deposit 
is  properly  made  to  the  receiver  of  a  bank 
where  the  Tank  has  been  closed  and  a  re- 
ceiver appointed.  Id. 
Negotiability. 

183.  A  certificate  of  deposit  issued  by  a 
bank  and  made  payable  to  order  or  bearer, 
and    payable    on    return   of    the    certificate 


properly  indorsed,  is  a  negotiable  instru- 
ment. Kirkwood  v.  First  Nat.  Bank,  40 
Neb.  484,  58  N.  W.  1016,  24:  444 

184.  A  provision  for  interest  if  left  for  six 
months,  but  no  interest  after  six  months, 
does  not  destroy  the  negotiability  of  a  cer- 
tificate of  deposit.  la. 

185.  The  provision  that  a  certificate  of  de- 
posit is  payable  in  current  funds  does  not 
prevent  it  from  being  negotiable.  lu. 

186.  A  certificate  of  deposit  in  the  usual 
form,  issued  by  a  bank  and  made  payable 
to  bearer  or  order,  is  negotiab'.e  and  enti- 
tled to  the  same  protection  in  the  hands 
of  a  bona  fide  purc'haser  as  other  negotiable 
paper.  First  Nat.  Bank  v.  Security  Nat. 
Bank.  34  Neb.  71,  51  N.  W.  305,  15:  386 
Restrictive  indorsements. 

187.  An  indorsement  on  a  certificate  of 
deposit  of  the  words,  "Pay  to  the  order  of 
R.  C.  O.  cash,  for  account"  of  the  indorser, 
is  a  restrictive  indorsement  which  vests  no 
general  property  to  the  paper  in  the  indor- 
see, but  merely  constitutes  him  an  agent  for 
collection.  United  States  Nat.  Bank  v. 
Greer,  53  Neb.  67,  73  N.  W.  266,  55  Neb.  462, 
75  N.  W.  1088,  41:  439 

188.  An  indorsement  "without  recourse" 
is  not  sufficient  to  charge  the  purchaser  of 
a  certificate  of  deposit  before  maturity  with 
notice  of  defenses.  First  Nat.  Bpnk  v.  Se- 
curity Nat.  Bank,  34  Neb.  71,  51  N.  W. 
305,  15:  386 
Maturity. 

For  Editorial  Notes,  see  infra,  VITT.  §  12. 

189.  A  certificate  of  deposit  becomes  over- 
due after  the  expiration  of  six  months,  and 
not  until  then,  when  it  provides  that  it  is 
not  subject  to  check,  and  that  it  shall  bear 
interest  at  6  per  cent  if  left  b\x  months,  but 
no  interest  after  six  months.  Kirlovood  v. 
First  Nat.  Bank,  40  Neb.  484,  58  N.  W.  1016, 

24:  444 

190.  The  words,  "This  certificate  payable 
three  months  after  date,  with  6  per  cent  in- 
terest per  annum  for  the  time  specified," 
stamped  across  the  face  of  a  certificate  of 
deposit  which  recites  that  it  is  pnyable  "on 
the  return  of  this  certificate  properly  in- 
dorsed,"— make  it  a  time  certificate  which 
is  overdue  after  the  expiration  of  three 
months.  First  Nat.  Bank  v.  Securitv  Nat. 
Bank,  34  Neb.  71,  51  N.  W.  305,  15:  386 

191.  A  demand  to  hold  the  indorser  of  a 
certificate  of  deposit  which  contains  the 
clause,  'To  be  left  six  months.  No  interest 
nfter  maturity," — must  be  made  on  the  last 
day  of  grace  on  the  expiration  of  the  six 
months,  as  the  certificate  is  not  payable  on 
demand,  but  six  months  after  date,  and 
therefore  does  not  fall  within  the  sixty-day 
limitation  fixed  for  demand  certificates  by 
Minn.  Gen.  Stat.  1894,  §  2231.  Towle  v. 
Starz,  67  Minn.  370,  69  N.  W.  1098,    36:  463 

b.  Collections. 

1.  In  General. 

Presentment   of   Negotiable   Paper   at,    for 
Payment,  see  Bills  and  Notes,  IV. 


218 


BANKS.  rV.  b,  1. 


Effect  of  Delay  in  Presentation  of  Check 
Taken  in  Payment  of  Other  Check,  see 
Checks,  22-2o. 

What  Law  Governs,  see  Conflict  of  Laws,  44. 

Opinion  Evidence  as  to  Intent,  see  Evi- 
dence, 1404. 

Allegation  of  Negligence  in,  see  Pleading, 
316. 

Setoff  in  Case  of,  see  Set-Off  and  Coxinter- 
claim,  45. 

See  also  supra,  50.  ^^ 

For  Editorial  Notes,  see  infra,  Vlll,  §§ 
14-16,  20. 

192.  Only  the  first  of  several  banks  suc- 
cessively receiving  a  check  for  collection  is 
the  agent  of  the  payee.  Corn  Exch.  Bank  v. 
Farmers'  Nat.  Bank,  118  N.  Y.  443,  23  N.  E. 
923,  7 :  559 

193.  A  bank  receiving  drafts  for  collection 
merely  does  not  thereby  become  a  guaran- 
tor, so  as  to  be  prevented  from  secut-ing 
the  priority  of  a  debt  due  from  the  drawee 
to  itself,  by  attaching  his  property.  Free- 
man y.  Citizens  Nat.  Bank,  78  Iowa,  150,  42 
N.  W.  632,  4:  422 

194.  A  person  receiving  at  the  place  of 
payment  a  negotiable  promissory  note  in- 
dorsed for  collection  has  no  power  to  sell 
or  transfer  it,  his  power  being  limited  to 
collection.  People's  &  Drovers'  Bnnk  v. 
CraiT.  63  Ohio  St.  374,  59  N.  E.  102,    52:  872 

195.  The  owner  of  drafts,  who  indorses 
them  in  blank  and  places  them  with  a  bank 
for  collection,  may  avail  himself  of  the 
benefit  of  a  restrictive  indorsement  placed 
thereon  by  such  bank  when  it  transmitted 
them  to  its  correspondent  for  the  purpose  of 
effecting  such  collection.  Freeman's  Nat. 
Bank  v.  National  Tube  Works  Co.  151  Mass. 
413,  24  N.  E.  779,  8:  42 

196.  The  selection  of  a  suitable  inter- 
mediate bank  for  the  purpose  of  sending  a 
check  for  collection  discharges  the  duty  of 
the  initial  bark  to  the  person  who  deposits 
the  cheok.  Civan  v.  Bank  of  Alexandria 
Tenn.  Ch.)   52  S.  W.  923.  47:  270 

197.  Failure  of  the  bank  on  which  a 
check  is  drawn  and  with  which  it  is  de- 
posited "for  collection  and  credit,"  to  notify 
the  drawer  of  its  neglect  to  transfer  the 
credit,  will  discharge  him  from  further  lia- 
bility in  case  he  is  injured  thereby.  Ex- 
charge  Bank  v.  Sutton  Bank,  78  Md.  577. 
28  Atl.  .503.  23:  173 

198.  A  bank  receiving  for  collection  a 
check  the  proceeds  of  which  it  is  to  retain 
to  the  drawer's  credit  will  be  regarded  as 
receiving  sufficient  compensation  .  for  its 
services  to  make  it  liable  for  negligence  in 
attempting  to  make  the  collection.  Ker- 
shaw V.  Ladd.  34  Or.  375,  56  Pac.  402,     44:  23G 

199.  A  credit  of  checks  deposited  for  col- 
lection, and  the  issuance  of  a  deposit  slip 
stating  that  all  cash  items  not  actual  cash 
are  entered  subject  to  payment,  entitle  the 
bank  to  charge  back  a  check  if  it  proves  un- 
collectible, nivan  y.  Bank  of  Alexandria 
(Tenn,  Ch.)  52  S.  W.  923,  47:  270 

200.  The  proceeds  of  a  bank  draft,  sent  in 
paj'ment  of  goods  sold,  deposited  in  bank, 
collected,  and  placed  to  the  credit  of  payee, 


cannot  be  claimed  by  the  drawer  because, 
to  get  possession  of  the  property  which  he 
bought,  he  was  compelled  to  pay  a  draft 
on  himself  which  the  seller  of  the  goods  had 
drawn,  attached  to  the  bill  of  lading,  and 
had  discounted,  although  the  seller  fraudu- 
lently appropriated  his  draft  while  leaving 
the  one  against  him  outstanding  in  the 
hands  of  the  concern  which  discounted  it 
with  a  lien  on  the  property  as  security. 
T.  S.  Reed  Grocery  Co.  v.  Canton  Nat. 
Bank,  100  Md.  299,  59  Atl.  716,  70:  959 

Title  to  paper. 
Title  of  Bona  Fide  Purchaser,  see  Bills  and 

Notes,  196. 
See  also  infra,  248,  308. 
For  Editorial  Notes,  see  infra,  Vni.  §§  15, 20. 

201.  An  indorsement  "for  collection"  will 
not  pass  the  title  to  commercial  paper  to 
the  bank  in  which  it  is  deposited.  Tyson 
V.  Western  Nat.  Bank,  77  Md.  412,  26  Atl. 
520,  23:  161 

202.  Entering  the  amount  of  commercial 
paper  deposited  with  the  bank  "for  col- 
lection" as  cash  in  the  pass  book  of  the  de- 
positor and  to  his  credit  on  the  books  of  the 
bank  will  not  pass  to  the  book  the  title  to 
the  paper,  if  it  was  not  to  be  an  absolute 
credit,  but  was  to  be  charged  back  if  not 
collected.  Id. 

203.  The  legal  title  to  commercial  paper 
indorsed  "For  collection"  passes  only  so 
far  as  to  enable  the  indorsee  to  demand, 
receive,  and  sue  for  the  money  to  be  paid. 
Upon  such  indorsement  the  owner  may  con- 
trol his  paper  until  it  is  paid,  and  may 
intercept  the  proceeds  thereof  in  the  hands 
of  an  intermediate  agent.  Freeman's  Nat. 
Bank  v.  National  Tube  Works  Co.  151  Mass. 
413,  24  N.  E.  779,  8:  42 

204.  A  third  person  can  acquire  from  the 
bank  no  title  to  commercial  paper  deposited 
with  an  indorsement  "for  collection." 
Tvson  y.  Western  Nat.  Bank,  77  Md.  412, 
26  Atl.  520,  23:  161 

205.  The  title  to  commercial  paper  pay- 
able on  demand,  which  is  sent  by  one  bank 
to  another  for  collection  and  so  indorsed, 
does  not  pass  to  the  latter  bank  prior  to 
its  collection,  although  it  is  accompanied  by 
a  letter  stating  that  it  is  sent  "for  collection 
and  credit,"  and  its  amount  is  credited  upon 
the  account  of  the  transmitting  bank  im- 
mediately upon  its  receipt  by  the  collecting 
bank,  in  pursuance  of  a  custom  existing  be- 
tween the  two  banks  in  regard  to  their 
dealings.  National  Butchers  &  D.  Bank  v. 
Hubbell,  117  N.  Y.  384,  22  N.  E.  1031, 

7:852 

206.  No  title  to  a  check  on  another  bank 
passes  to  the  bank  with  which  it  is  deposit- 
ed for  collection,  although  it  is  indorsed 
"For  deposit"  and  its  amount  is  immediate- 
ly credited  on  the  depositor's  passbook,  in 
the  absence  of  some  special  agreement  to 
that  effect  or  some  practice  or  custom 
equivalent  to  such  agreement.  Hence,  if  the 
depositary  becomes  insolvent  before  collect- 
ing the  check  it  can  acquire  no  title  to  the 
proceeds.  Beal  v.  Somerville,  5  U.  S.  App. 
14,  1  C.  C.  A.  598,  50  Fed.  647,  17:  291 


BANKS,  IV.  b,  1. 


219 


207.  The  collection  of  paper  deposited 
with  a  bank  indorsed  "for  coUectioH"  after 
the  bank  has  ceased  to  do  business  because 
of  insolvency  will  not  vest  the  title  to  the 
paper  in  the  bank.  Tyson  v.  Western  Nat. 
Bank^  77  Md.  412,  26  Atl.  520,  23:  161 

208.  The  assignee  of  a  bank  holding 
paper  indorsed  for  collection  uncollected, 
takes  no  title  thereto,  and,  if  he  collects  the 
same,  it  is  his  duty  to  remit  the  proceeds 
to  the  transmitting  bank;  and  the  fact  that 
he  has  expended  such  proceeds  in  the  pay- 
ment of  the  debts  of  his  assignor  in  good 
faith,  without  notice  of  the  claim  of  the 
transmitting  bank,  and  under  an  order  of 
court  for  the  payment  of  a  dividend  to 
creditors,  is  no  defense  to  a  suit  by  the  lat- 
ter to  recover  them.     National  Butchers  & 

D.  Bank  v.  Hubbell,  117  N.  Y.  384,  22  N. 

E.  1031,  ,  7:  852 
Notice  as  to  title  from  indorsement. 

201).  An  indorsement  for  collection  is 
notice  to  the  drawee  that  the  indorsee  is 
not  the  owner  of  the  paper,  but  only  the 
agent  of  the  owner  authorized  to  receive 
payment  for  him.  First  Nat.  Bank  v.  First 
Nat.  Bank,  58  Ohio  St.  207,  50  N.  E.  723, 

41 :  584 

210.  Notice  that  a  draft  is  held  by  its 
correspondent  merely  for  collection  is  not 
given  to  a  bank  where  the  indorsements  are 
all  without  restriction,  and  the  draft  is 
transmitted  to  it  with  directions  to  collect 
and  credit,  by  the  fact  that  on  the  face  of 
the  draft,  are  stamped  the  name  of  the 
correspondent,  toffether  with  the  words 
"Collection  No.  4627."  Garrison  v.  Union 
Trust  Co.,  139  Mich.  392,  102  N.  W.  978, 

70:  615 

211.  A  bank's  indorsement  of  com- 
mercial paper  directing  payment  "for  ac- 
count of  itself"  does  not  imply  that  it  is  the 
owner  of  the  paper,  where  the  indorsement 
of  the  bank  from  which  its  title  was  de- 
rived was  of  the  same  kind.  Freeman's 
Nat.  Bank  v.  National  Tube  Works  Co.  151 
Mass.  413;  24  N.   E.   779,  8:  42 

212.  An  indorsement  of  a  check  by  a 
bank  holding  it  for  collection,  "for  clear- 
ing house  purposes  only,"  does  not  consti- 
tute a  representation  that  it  is  its  owner. 
Crocker-Woolworth  Nat.  Bank  v.  Nevada 
Bank,  139  Cal.  564,  73  Pac.  456,  63:  245 
Care  in  selecting  correspondent. 

213.  The  selection  of  its  regular  corre- 
spondent employed  to  transact  its  own  busi- 
ness, for  the  purpose  of  sending  a  check  for 
collection,  indicates  proper  care  on  the 
part  of  a  bank  with  which  it  is  deposited 
for  collection.  Givan  v.  Bank  of  Alexandria 
(Tenn.  Ch.)   52  S.  W.  923,  47:270 

214.  A  bank  cannot  be  held  negligent  in 
selecting,  as  agent  for  the  collection  of  a 
note  for  its  customer,  another  bank  which 
is  regarded  as  solvent,  merely  because  it  is 
in  fact  insolvent  and  makes  an  assignment 
for  creditors  soon  afterwards,  and  because 
the  treasurer  of  the  corporation  making  the 
note  is  also  cashier  of  the  bank.  Second 
Nat.  Bank  v.  Merchants'  Nat.  Bank,  111 
Ky.  930,  65  S.  W.  4,  55:  273 


Sending  directly  to  bank  required  to  pay. 

See  also  Checks,  12,  13. 

For  Editorial  Notes,  see  infra,  VTII.  §  16. 

215.  A  collecting  bank  must  not  transmit 
checks  or  drafts  directly  to  the  bank  or 
prrty  by  whom  payment  is  to  be  made. 
Minneapolis  Sash  &  D.  Co.  v.  Metropolitan 
Bank,  76  Minn.  136,  78  N.  W.  980,  44:  504 

216.  Sending  a  check  directly  to  the 
drawee  bank  for  collection  constitutes  neg- 
ligence on  the  part  of  the  collecting  bank. 
Givan  v.  Bank  of  Alexandria  (Tenn.  Ch.) 
52  S.  W.  -923,  '  47:270 

217.  A  collecting  bank  is  chargeable  with 
the  loss,  where  it  sends  a  check  directly  to 
the  drawee  bank,  with  instructions  to  re- 
mit in  exchange  upon  another  place,  and 
the  drawee,  although  having  a  deposit 
against  which  the  check  was  drawn  and  con- 
tinuing to  do  business  for  one  whole  day 
after  receiving  it,  mails  back  the  check  at 
the  close  of  that  day  with  the  statement, 
"No  funds,"  and  immediately  suspends  bus- 
iness. Anderson  v.  Rodgers,  53  Kan.  542, 
36   Pac.   1007,  27:  248 

218.  Notice  to  a  depositor  by  a  collecting 
bank  that  it  will  be  responsible  only  for 
the  selection  of  agents  according  to  its 
judgment  and  means  of  knowledge,  and  will 
assume  no  risk  or  responsibility  on  ac- 
count of  their  omission,  neglect,  or  failure, 
will  not  relieve  the  bank  from  liability  for 
sending  a  check  directly  to  the  bank  by 
which  payment  is  to  be  mado.  Minneapolis 
Sash  &  *D.  Co.  V.  Metropolitan  Bank,  76 
Minn.  136,  78  N.  W.  980,  44:  504 

219.  An  established  usage  and  custom  ex- 
isting among  banks  will  not  justify  a  col- 
lecting bank  in  sending  a  check  or  a  draft 
by  mail  directly  to  the  drawee  because 
there  is  no  other  bank  of  good  standing  in 
the  same  town.  Id. 

220.  A  custom  of  banks  to  send  a  check 
direct  to  the  -irawee  bank  for  collection  and 
return  is  not  unreasonable,  at  least  as  ap- 
plied to  the  collection  of  a  plain,  unindorsed 
check.  Kershaw  v.  Ladd,  34  Or.  375,  56 
Pac.  402,  44:  236 

221.  One  who  deposits  for  coMection  a 
check  on  a  distant  bank,  with  knowledge 
that  it  is  the  only  bank  in  the  place,  and 
that  the  check  will  be  collected  without 
expense  to  him  through  other  banks,  in  ac- 
cordance with  banking  usages,  is  estopped 
from  charging  the  bank  in  which  he  depos- 
ited it,  with  negligence  in  sending  it  to  a 
correspondent  who  forwards  it  to  the  draw- 
ee for  collection,  in  accordance  with  the 
custom  in  such  cases.  Wilson  v.  Carlin- 
ville  Nat.  Bank,  187  111.  222,  68  N.  E.  250, 

52:  632 

222.  A  collecting  bank  is  impliedly  in- 
structed to  send  a  certificate  of  deposit  for 
collection  directly  to  the  bank  which  made 
it,  when  this  is  the  only  bank  in  the  place, 
and  is  rated  and  supposed  to  be  responsi- 
ble, and  the  instructions  received  by  th© 
collecting  bank,  after  calling  attention  to 
the  fact  that  it  had  a  correspondent  at 
that  place,  said  "Please  collect  for  us  at 
your  best   rate  of  exchange."     First  Nat. 


220 


BANKS.  IV.  b,  1. 


Bank  v.  Citizens'  Sav.  Bank,  123  Mich.  336, 
82   N.  W.  GO,  48:  583 

223.  Sending  a  certificate  of  deposit  di- 
rectly to  the  drawer  for  collection  without 
instructions  to  do  so  constitutes  negligence 
on  the  part  of  a  collecting  bank,  for  which 
it  will  be  liable  in  case  of  a  resulting  loss. 

Id. 
Promptness  in  making  collection  or  giving 
notice  of  failure. 

224.  A  bank  receiving  a  check  for  collec- 
tion exercises  due  diligence  if,  in  accordance 
with  its  custom,"  it  credits  the  check  and 
forwards  it  on  the  following  day.  Givan  v. 
Bank  of  Alexandria  (Tenn.  Ch.)  52  S.  W. 
923,  47:270 

225  A  bank  which  receives  a  post-dated 
check  upon  itseif  for  collection,  under  a 
promise  to  hold  the  proceeds  subject  to  the 
check  of  the  depositor,  is  liable  to  the  lat- 
ter where,  when  the  bank  opens  on  the  day 
of  the  date  of  such  check,  the  drawer  has 
funds  sufTif^ient  to  discharge  the  debt,  al- 
though at  the  closing  hour  on  such  day  the 
account  of  the  drawer  is  overdrawn.  Aver- 
ell  V.  Second  Nat.  Bank,  2  App.  D.  C.  470, 

25:  761 

226.  The  retention  by  a  collecting  bank  of 
a  dishonored  check  until  after  the  drawee 
bank  hns  closed  does  not  create  any  lia- 
bility to  the  sender,  unless  he  was  injured 
thercbv.  Kershaw  v.  Ladd,  34  Or.  375.  56 
Pac.  402,  44:  236 

227.  Where  a  bank  receives  a  draft  for 
collection,  with  instructions  to  wire  the 
drawer  and  await  reply  in  case  of  nonpay- 
ment, it  is  not  negligent  in  not  bringing  a 
suit  aTaip'^t  the  drawee  for  nonpayment, 
where  it  telegraphs  the  drawer  two  days  be- 
fore it  commences  an  attachment  suit 
against  the  drawee  on  a  note  held  by  it- 
self, and  receives  no  directions  to  sue  until 
after  the  levy  of  its  attachment.  •  Freeman 
V.  Citizens'  Xat.  Bank,  78  Iowa,  150,  42  N. 
W.  6.']2,  4:  422 

228.  Disobedience  of  an  instruction  to  ad- 
vise payment  promptly,  and  return  at  once 
if  not  paid,  by  a  bank  receiving  a  draft  for 
colle-tinn,  is  not  shown  by  merelv  holdin<r 
the  draft  a  few  days  to  await  the  arrival 
of  the  property  against  which  it  is  drawn, 
in  ace  rd-^n^e  with  a  course  of  dealing  which 
has  existed  between  the  parties.  Garrison 
V.  Union  Trust  Co.  139  Mich.  392,  102  X. 
W.   978.  70:  615 

229.  A  bank  which  has  received  com- 
mercial paper  for  collection  and  forwarded  it 
to  an  iigpnt  l)ank  is  negligent  in  not  send- 
ing a  tracer  promptly  when  the  paper  is  not 
heard  from  at  maturity,  or  in  allowing  the 
matter  to  run  along  wiihnut  hearing  from 
the  tracer,  or,  in  case  it  is  heard  from,  in 
not  notifying  the  owner  of  the  paper  of  th*-  ; 
tnie  situation,  or  taking  any  steps  to  pro- 
tect his  interest.  Second  Nat.  Bank  v.  Mer- 
chants' Nat.  Bank,  111  Ky.  930,  65  S.  W.  4. 

55:  273 

230.  A  1-ank  which,  having  received  a  v.nt,^ 
for  collection,  sends  it  to  another  bank  the 
cashier  of  which  is  the  treasurer  of  the 
corporation  making  the  note,  at  a  time  of 
groat    financial    uncertainty,     is     negligent, 


when  the  note  is  not  collected  at  maturity^ 
in  failing  to  ascertain  promptly  the  cause^ 
or  whether  or  not  steps  have  been  taken  tO' 
hold  the  indorser,  and  in  sending  forward, 
another  note  of  the  same  kind  after  the 
maturity  of  the  former  one,  without  hearing 
from  it.  Id. 

Payment. 
Payment  of  Notes  Preventing  Further  Suit 

Thereon,  see  Bills  and  Notes,  284. 
Sec  also  infra,  298. 
For  Editorial  Notes,  see  infra,  VIII.  §  16. 

231.  A  check  by  one  bank  upon  another^ 
sent  in  payment  of  the  collection  of  a  draft, 
is  not  an  equitable  assignment  of  any  por- 
tion of  a  general  deposit  on  which  it  is 
drawn.  Akin  v.  Jones,  93  Tenn.  353,  27  S. 
W.   669,  25:  523 

232.  Payment  of  a  d^aft  presented  by  a 
collecting  bank  to  the  drawee,  who  is  its 
own  depositor,  is  not  made,  as  between  him 
and  the  drawer,  by  his  acceptance  of  the 
draft,  which  was  regarded  by  him  and  the 
bank  as  equivalent  to  a  check.  State  Bank 
V.  Byrne,  97  Mich.  178,  56  N.  W,  355,  21 :  753 

233.  No  custom  of  a  bank  to  receive 
checks  or  acceptances  from  a  depositor  as 
payment  can  be  operative  as  against  one 
not  a  party  to  the  custom,  whose  draft  on 
one  of  its  depositors  is  received  by  the  bank 
for  collection.  Id. 

234.  A  bank  receiving  a  note  for  collec- 
tion, which  accepts  in  payment  a  check  on 
the  owner  of  the  note,  does  so  at  its  own 
risk,  in  case  the  check  is  not  good.  Bank 
of  Antigo  V.  Union  Trust  Co.  149  111.  343, 
36  N.  E.   1029,  23:  611 

235.  Where  a  debtor  sends  his  creditor  a 
check  on  bankers,  which  the  creditor  on  the 
same  day  sends  to  his  bank  for  collection, 
and  the  latter,  on  the  day  after  its  receipt, 
sends  it  to  the  drawees  for  collection  and 
remittance  according  to  the  common  prac- 
tice among  banks,  a  draft,  which  was  the 
usual  form  of  remittance  in  such  cases,  sent 
by  the  drawees  for  the  amount  of  the  debt, 
will  not  constitute  a  payment  where  the 
drawees  fail  and  make  an  assignment  on 
the  same  day,  payment  of  the  draft  being 
refused  on  its  being  presented  without  de- 
lay. Thomas  v.  Westchester  County,  115 
N.  Y.  47,  21  N.  E.  674,  "4:  477 

236.  Worthless  drafts  received  by  a  bank 
with  which  paper  was  deposited  for  col- 
lection, from  a  collecting  bank  to  which  the 
paper  was  sent,  and  thereunon  credited  to 
the  depositor,  without  knowledge  of  the  in- 
solvency of  the  collecting  agent,  do  not 
change  the  rule  that  the  depositor  must 
hear  the  loss,  since  the  rights  of  the  parties 
are  the  same  as  if  the  worthless  drafts  had 
been  deposited  bv  him.  Waterloo  Milling 
Co.  V.  Kuenster,  158  111.  259,  41  N.  E.  906, 

29:  794 

237.  A  bank  which  has  received  for  col- 
lection a  check  which  it  forwards  to  its 
correspondent  for  that  purpose  cannot  ful- 
fil its  obligation  to  the  owner  by  delivering 
to  him  the  correspondent's  draft  on  a  third 
person,  drawn  and  used  for  transmitting- 
the  proceeds  of  the  check,  not  to  the  o«vpr, 
but  to  itself,  and  which  has  become  worth- 


BAKKS,  IV.  b,  1. 


231 


less  because  of  the  inpolvenoy  of  both  draw- 
er and  drawee.  St.  Nicholas  Bank  v.  State 
Nat.   Bank,    128    N.    Y.    26,   27    N.    E.    84.). 

13:  241 

238.  If  a  collecting  bank  surrenders  a 
check  to  a  bank  on  which  it  is  drawn,  and 
accepts  a  cashier's  check  oi*  other  obliga- 
tion in  lieu  thereof,  its  liability  to  its  de- 
positor is  fi.xed  as  much  as  if  it  had  re- 
ceived the  cash.  The  bank  holding  the  check 
for  collection  has  no  right,  unless  specially 
authorized  to  do  so,  to  accept  anything  in 
lieu  of  rnonev.  Fifth  Nat.  Bank  v.  Ash- 
worth.  123  Pa'.  212,  16  Atl.  593,  2:  491 
Stopping  payment. 

239.  A  bank  which  at  its  customer's  re- 
quest mails  its  own  draft  to  his  creditor  in 
payment  of  the  creditor's  draft  on  him  can- 
not defeat  the  creditor's  right  to  its  draft 
by  intercepting  it  in  the  mail,  although  it 
extended  credit  for  the  amount  fnf  the  draft 
to  its  customer  in  ignorance  of  the  fact 
that  he  was  insolvent.  Canterbury  v.  Bank 
of  Sparta,  91  Wis.  53,  64  N.  W.  311,  30:  845 

240.  A  bank  to  which  commercial  paper 
has  been  ■  transmitted  for  collection  will 
not  be  permitted  to  dispute  the  right  of 
the  owner  to  stop  payment  thereof,  al- 
though it  has  made  credits  or  advances  to 
an  intermediate  collecting  agent  on  account 
of  the  paper,  if  the  same  were  made  before 
the  papor  had  been  collected;  nor  can  such 
advances  be  recovered  from  the  owner  as 
money  paid  for  his  use.  Freeman's  Nat. 
Bank  v.  National  Tube  Works  Co.  151  Mass. 
413,  24  N.  E.  779,  8:  42 

241.  A  bank  which  has  charged  up  to  the 
drawer,  canceled,  and  sent  a  draft  in  pay- 
ment of,  a  check  received  through  the  agen- 
cy of  two  other  banks  which  had  succes- 
sively received  it  for  collection,  the  latter 
of  which,  not  knowing  that  the  former  was 
not  the  owner  thereof,  as  the  payee's  in- 
dorsement was  in  blank,  had  given  credit 
therefor,  reserving  the  right  to  charge  it 
back  if  dishonored,  and  thereupon  sent  it 
on  for  collection  and  remittance, — cannot. 
at  the  request  of  the  drawer  and  payee  of 
the  check,  stop  payment  of  the  draft  to 
the  correspondent  bank  because  the  bank 
first  receiving  the  check  for  collection  had 
become  insolvent.  The  insolvent  bank  only 
is  the  agent  of  the  payee  of  the  check,  and 
the  drawee,  after  sending  the  draft,  is  not 
justified  in  resisting  payment,  for  the  bene- 
fit of  such  payee,  even  assuming  that  he  is 
entitled  to  the  proceeds  thereof.  Com 
Exch.  Bank  v.  Farmers'  Nat.  Bank,  118  N. 
Y.  44.'?.  23  N.  E.  02.3.  7:559 
Default  of  corresnondent. 

242.  A  bank  with  which  a  customer  has 
left  for  collection  his  draft  upon  a  party 
residing  at  a  distant  point  is  liable  for  the 
failure  and  default  of  a  correspondent  to 
whom  it  forwarded  the  draft  for  collection. 
Streissguth  v.  National  Herman-Am.  Bank. 
43  Minn.  50,  44  N.  W.  797,  7:363 

243.  A  bank  with  which  a  draft  is  de- 
posited for  collection  discharges  its  duty  by 
transmitting  it  in  due  season  to  a  suitable 
agent  at  the  residence  of  the  drawee,  with 
necessary  instructions,  and  is  not  liable  for 


loss  occasioned  by  the  negligence  or  default 
of  the  latter,  as  such  collecting  agent  be- 
comes the  agent  of  the  holder  of  the  draft, 
and  not  of  the  bank  with  which  it  is  de- 
posited for  col'ectinn.  Waterloo  ^TjHinor  Co. 
V.  Kuenster,   158  III.  259,  41  N.  E.  906, 

2):  794 

244.  A  bank  which  receives  for  collection 
a  note  or  bill  payable  at  a  distant  point, 
with  the  understanding  that  such  collec- 
tion is  an  accommodation  only,  or  that  it 
shall  receive  no  compensation  therefor  be- 
yond the  customary  exchange,  is  not  liable 
for  the  defaults  of  a  reputable  and  suit- 
able correspondent  at  the  place  of  payment 
to  which  it  transmits  the  paper  with  prop- 
er instruction  for  collection  and  remittance 
of  the  proceeds.  First  Nat.  Bank.  v. 
Sprague,  34  Neb.  318,  51  N.  W.  846,    15:  498 

245.  The  failure  to  collect  a  check  in 
consequence  of  the  negligence  of  a  bank  to 
which  it  was  sent  for  collection  by  a  bank 
in  which  it  was  deposited  for  collection  will 
not  preclude  the  latter  bank  from  recover- 
ing the  amount  thereof  from  the  depositor, 
to  whom  it  had  given  credit  for  the  amount, 
if  that  bank  exercised  due  care  in  selecting 
the  correspondent  to  which  it  sent  the  check 
since  the  correspondent  bank  is  the  agent 
of  the  depositor.  Wilson  v.  Carlinville  Nat. 
Bank,  187  111.  222,  58  N.  E.  250,  52:  632 

246.  The  exchange  usually  charged  by 
banks  for  transmission  of  money  from  one 
place  to  another  is  not  a  sufficient  consid- 
eration to  support  an  implied  undertaking 
to  answer  for  the  default  of  a  correspon- 
dent selected  to  make  collections  for  cus- 
tomers according  to  the  course  of  business 
of  bar^ks.  First  Nat.  Bank  v.  Sprague,  34 
Neb.  318,  51  N.  W.  846,  15:  498 
Lien  of  collecting  bank. 

See  also  infra,  262. 

247.  A  bank  has  a  lien  on  drafts  received 
from  a  correspondent  bank  for  collection 
and  credit  for  settlement  of  its  deposit  ac- 
count with  the  latter,  unless  it  has  notice 
that  the  correspondent  was  merely  an 
agent  for  collection,  and  not  owner  of  the 
draft,  or  unless  it  forfeits  its  lien  bv  dis- 
obedience of  instructions.  Garrison  v.  Union 
Trust   Co.    139   Mich.   392,   102  N.  W.  978. 

70:  615 

248.  A  bank  which  sends  to  another  bank, 
which  is  its  regular  correspondent,  for  col- 
lection, a  draft  indorsed  for  collection  and 
credit,  cannot  assert  its  title  against  the 
lien  upon  the  proceeds  to  which  a  third 
bank,  to  which  the  draft  is  forwarded  for 
collection,  is  entitled  in  the  ordinary  course 
of  business  to  balance  its  account  against 
the  intermediate  bank.  Id. 

249.  The  fact  that  the  bank  to  which  a 
draft  has  been  sent  by  a  correspondent  for 
collection  and  credit  has  become  insolvent 
when  it  receives  notice  of  the  collection 
from  a  third  bank,  to  which  the  paper  was 
forwarded  for  that  purpose,  does  not  change 
the  rule  that  the  bank  making  the  collec- 
tion is  entitled  to  a  lien  on  the  proceeds  to 
balance  its  account  with  its  correspondent, 
as  asainst  the  title  of  the  original  trans- 
mitting bank.  ItL 


223 


BANKS,  IV.  b,  a. 


Forgeries. 

Rights  of  Bank  Paying  Forged  Note  Taken 
for  Collection,  see  Bills  and  Notes,  238. 
See  also  supra,  142-144,  163. 

2.50.  A  drawee  bank  which  pay?  a  raised 
check  under  the  mistaken  belief  that  it  has 
not  been  altered  cannot  compel  the  collect- 
ing bank  to  refund  the  excessive  amount 
after  it  has,  in  good  faith  and  without  no- 
tice of  the  fraud,  turned  the  proceeds  over 
to  the  payee,  where  the  indorsement  of  the 
collecting  bank  is  restrictive,  and  the  draw- 
ee knows  that  it  holds  the  check  merely  for 
collection.  Crocker- Woolworth  Nat.  Bank  v. 
Nevada    Bank,    139  Cal.    564,  73  Pac.    4.'J6. 

63:  245 

251.  A  hank  cannot  recover  money  pkid 
on  a  raised  check  from  the  collecting  bank, 
merely  because  the  evidence  might  justify 
a  presumption  that  it  relied  upon  the  rep- 
resentations of  the  latter  as  to  the  genuine- 
ness of  the  paper,  unless  the  evidence  is  con- 
clusive of  the  fact,  where  it  does  not  plead 
such  reliance.  Id. 

2;"2.  Payment  to  a  collecting  bank  of  a 
check  bearing  a  forged  indorsement  of  the 
payee's  name  does  not  entitle  the  drawee 
bank  to  recover  back  the  proceeds  on  the 
theory  that  the  collecting  bank  had  guaran- 
teed the  indorsement,  when  the  drawee  had 
drawn  the  cheek  on  itself,  and  delivered  it 
to  a  person  who  falsely  personated  the  pay- 
ee named  therein,  for  money  to  be  loaned 
on  a  mortsrage.  Land  Title  &  T.  Co.  v. 
Northwpstepn  Nat.  Bank,  196  Pa.  2.?0,  46 
Atl.  -120,  50:  75 

Neglitrcnce  3s  to  protesting  and  giving  no- 
tice of  dishonor. 

25.*].  lr<;truction  to  "protest"  a  note  for- 
warded bv  one  bank  to  another  for  the 
purpose  of  collection  requires  everything  to 
be  done  which  is  necessary  to  bind  the 
drawer  or  indorsers.  Williams  v.  Parks. 
63  Xeb.  747,  80  N.  W.  305,  .56:  750 

2.54.  A  draft  having  been  sent  to  a  bank 
for  collpf'tion,  with  instructions  to  protest 
in  case  of  nonpayment,  the  sender  is  not  re- 
quired to  make  examination  to  find  out 
whether  proper  notices  of  dishonor  have 
been  served,  since  that  is  the  duty  of  the 
notnrv.  Id. 

25.").  A  bnnk  receivincr  for  collection  a  note 
on  wl'K-h  it  is  an  indorser  is  not  relieved 
of  linbility  by  renson  of  its  own  failure 
to  make  demand  and  srive  notice  of  dishonor. 
Auten  V.  TVfnnistee  Nat.  Bank,  67  Ark.  243, 
54  S.  W.  337,  47:  320 

2.'iG.  The  neglicrence  of  a  notary  public 
in  failinjr  to  learn  the  residence  of  an  in- 
dorser of  an  inlfind  draft,  and  give  him 
prooer  notice  of  its  dishonor,  is  not  charsre- 
abletoaba"k  of  which  he  is  assistant  cash- 
ier, and  which  placed  the.  draft,  which  it 
held  only  for  collection,  in  his  hands  for 
protest,  although  no  protest  of  the  draft 
was  reauired  by  law,  but  the  law  recognizes 
the  giving  of  notices  in  case  of  protest  as 
part  of  the  official  duty  of  the  notary. 
First  Nat.  Hank  v.  German  Bank,  107  Iowa. 
543.  78  N.  W.  195,  44:  133 

2.57.  An  honest  mistake  of  a  banker  as  to 
the   law   concerning  holidays   and   days   of 


grace,  concerning  which  able  lawyers  and 
judges  were  not  agreed,  will  not  make  the 
bank  liable  for  failure  to  protest  a  note 
until"  the  day  after  that  on  ^v^ich  the  court 
finally  holds  that  it  should  have  been  done. 
Morris  v.  Union  Nat.  Bank,  13  S.  D.  329,  Sa 
N.  W.  252,  •  50:  182 

2.  Insolvency. 

See  also  supra,  206-208,  217,  225,  226,  235- 

237. 
For  Editorial  Notes,  see  infra,  VIII.  §§  15, 

20. 

258.  A  bank  which  becomes  liable  to  pay 
a  check  sent  to  it  for  collection,  by  accept- 
ing a  cashier's  cheek,  instead  of  cash,  from 
the  bank  on  which  it  was  drawn,  just  be- 
fore the  latter  suspends  payment,  cannot 
claim  the  benefit  of  any  payment  made  in 
the  meantime  to  the  payee  of  the  check  by 
the  drawer.  Fifth  Nat.  Bank  v.  Ash  worth, 
123  Pa.  212,  16  Atl.  593,  2:  401 

2.59.  The  retention  of  worthless  drafts 
after  knowledge  of  the  insolvency  of  the 
drawer,  by  a  bank  which  has  received  them 
as  proceeds  of  paper  forwarded  for  collec- 
tion and  credited  to  the  depositor  before 
learning  of  such  insolvency,  and  the  subse- 
quent proof  of  a  claim  on  the  drafts  by  the 
bank  in  its  own  name,  and  the  receipt  of  a 
dividend  thereon  from  the  receiver  of  the 
drawer, — do  not  relieve  the  depositor  from 
liability  to  the  bank  for  the  loss  sustained 
on  the  balance  of  the  drafts.  Waterloo 
Milling  Co.  V.  Kuenster,  158  111.  259,  41  N. 
E.   906,  29:  794 

Insolvency  of  bank. 
See  also  supra,  241,  249 
For  Editorial  Notes,  see  infra,  VITT.  §  15,  20. 

260.  Sending  a  draft  to  a  bank  for  col- 
lection with  instructions  to  remit  in  New 
York  exchange,  is  equivalent  to  an  agree- 
ment that  the  money  collected  may  l>e  used 
by  the  collecting  bank,  and  precludes  the 
claim  that  such  proceeds  are  held  in  tnist, 
where  the  bank  fails  before  it  has  paid  the 
colleetion.  Akin  v.  Jones,  93  Tenn.  .3.53.  27 
S.  W.  660,  25:  523 

261.  A  bank  receiving  for  collection  from 
a  correspondent  bank  a  draft  indorsed  by 
the  payee  in  blank,  without  notice  that  the 
correspondent  holds  the  draft  for  collection 
only,  may,  before  receiving  notice  of  the 
insolvency  of  the  correspondent,  apply  the 
proceeds  in  reduction  of  the  correspondent's 
overdraft,  and  cannot  be  compelled  by  the 
payee  to  account  therefor.  American  Exch. 
Nat.  Bank  v.  Theummler,  195  111.  90,  62  N. 
E.    9.32,  58:  51 

262.  If  a  bank,  on  receiving  from  another 
bank  commercial  paper  "for  collection  and 
immediate  return,"  makes  the  collection  and 
mingles  the  money  collected  with  its  general 
funds,  and  thereafter  becomes  insolvent, 
having  cash  on  hand  sufficient  to  cover  such 
collection,  the  fund  collected  must  be  held 
to  have  so  lost  its  identity,  that  the  cash 
on  hand  will  not  be  impressed  with  a  trust 
lien  in  favor  of  the  bank  for  which  the  col- 
lection was  made,  as  against  general  cred- 


BANKS,  IV.  c.  2. 


223 


itors.     Philadelphia  Nat.  Bank  v,  Dowd,  38 
Fed.  172,  2:  480 

263.  A  bank  which  sends  paper  for  col- 
lection to  another  bank,  which  maVes  an  as 
si^^nment  for  creditors  after  the  money  h.is 
been  collected  and  paid  out  in  the  usual 
course  of  its  business,  occupies  a  position 
no  different  from  that  of  other  creditors  of 
the  assigning  bank,  so  far  as  the  proceeds 
oi  such  collections  are  concerned,  where  the 
custom  of  the  assicfning  bank  is  to  remit 
the  proceeds  of  collections  once  a  week,  and 
the  identical  moneys  collected  upon  the  pa- 
per are  not  expected  to  be  sent  to  the  trans- 
mitting bank.  National  Butchers  &  D. 
Bank  v.  Hubbell,  117  N.  Y.  384,  22  N.  E. 
1031,  •  7:852 

264.  Where  money  collected  by  a  bank 
for  another  bank,  under  instructions  for  im- 
mediate return,  is  allowed  to  remain  sever- 
al months  with  the  collecting  b^nk,  which 
becomes  insolvent  without  having  made  re- 
turn, the  bank  for  which  the  collection  was 
made  will  not  be  considered  a  cestui  que 
trust,  but  will  be  treated  as  on  ordinary 
creditor.  Philadelphia  Nat.  Bank  v.  Dowd. 
38  Fed.   172,  2:  480 

265.  Where  a  national  bank  contracts  to 
collect  drafts  and  checks  for  another  bank, 
under  which  contract  it  has  the  right  to 
mingle  the  proceeds  of  collections  with  its 
own  funds  and  make  itself  debtor  for  the 
amount,  its  insolvency  will  terminate  such 
right;  and  the  proceeds  of  a  check  nronprly. 
indorsed  as  for  collection,  and  sent  by  it  to 
a  third  bank  to  be  collected,  which  is  not 
accomplished  until  after  such  insolvency. 
are  the  property  of  the  principal  bank,  and 
may  be  recovered  by  it  in  a  suit  against 
such  third  bank.  Manufacturers  Nat.  Bank 
V.  Continental  Bank,  148  Mass.  553,  20  N. 
E.   103,  2:  600 

266.  One  who  sends  a  draft  for  collection 
to  a  bank,  which,  after  being  advised  bv 
another  bank,  to  which  it  sends  the  drnft 
for  the  same  purnose,  that  it  has  been  col- 
lected, credits  him  with  the  amount,  and 
afterwords  becomes  insolvent  without  hav- 
ing received  the  proceeds,  is  entitled  to  such 
proceeds  frym  the  collecting  bank,  as 
against  the  creditors  and  receiver  of  the, 
insolvent  bar-k.  Armstrong  v.  Bovertown 
Nat.  Bor'k,  no  Kv.  431,  14  S.  W.  411.  9:  5.53 

267.  Money  collected  by  a  bank  for  anoth- 
er on  notes  or  drafts,  and  retained,  does  not 
become  a  part  of  the  assets  of  the  bank, 
but  is  held  in  trust  for  the  owner,  so  that, 
in  case  the  bank  becomes  insolvent  and  goes 
into  the  hands  of  a  receiver,  the  person  for 
whom  such  money  is  collected  is  a  preferred 
creditor.  State  v.  Edwards,  61  Neb.  181, 
85  N.  W.  4,3,  52:  858 

268.  Payment  to  an  assignee  of  an  in- 
solvent bank  of  overdrafts  allowed  by  the 
bank,  on  the  faith  of  which  it  had  canceled 
drafts  held  by  it  for  collection,  cannot  be 
regarded  as  payments  of  such  previously  can- 
celed drafts  so  as  to  give  the  sender  of 
them  a  right  to  such  proceeds  as  a  trust 
fund.  Akin  v.  Jones,  93  Tenn.  353,  27  S. 
W.   669,  25:  523 

269.  The  fraud  of  a  bank  in  receiving  a 


note  for  collection  when  insolvent  will  not 
niter  the  rule  that  collections  mnde  under 
directions  to  remit  "bj'  draft"  will  not  be 
impressed  with  a  trust  giving  a  preferential 
rlnim  rgainst  the  bank's  assets.  Savles  v. 
Cox,  05  Tenn.  579,  32  S.  W.  626,       32:  715 

270.  It  is  not  such  laches  on  the  part  of 
(he  transmitting  bank  to  fail  for  sixteen 
days  after  the  recording  of  the  assignment 
by  a  bank  to  give  notice  of  its  claim  and 
make  demand  upon  the  assignee  for  the 
proceeds  of  the  paper  belonging  to  it  as  will 
bar  its  right  of  action  to  recover  them  from 
the  assignee,— especially  where  there  is  no 
reason  to  suppose  that  he  will  use  its  mon- 
ey to  pay  his  assignor's  debts.  National 
Butchers  &  D.  Bank  v.  Hubbell,  117  N.  Y. 
.184.  22  N.  E.  1031,  7:  852 

271.  The  completion  of  a  transfer  of  cred- 
it to  the  payee  of  a  check  indorsed  "for 
collection  and  credit"  by  the  assi<3mee  for 
creditors  of  an  insolvent  bank,  which  just 
before  assignment  had  charged  the  check  to 
the  maker,  but  had  not  given  credit  to  the 
payee,  will  not  constitute  a  payment  of 
the  demand  for  which  the  check  was  given. 
Exchange  Bank  v.  Sutton  Bank,  78  Md.  577, 
28  Atl.  563,  23:  173 

272.  The  fact  that  when  a  bank  received 
a  check  upon  itself  "for  collection  and  cred- 
it" to  another  account  it  was  hopelessly  in- 
solvent, and  the  same  day  placed  its  as- 
sets in  the  hands  of  trustees  for  creditors, 
shows  that  its  failure  to  notify  the  drawer 
of  its  neglect  to  transfer  the  credit  worked 
no  injury  to  him  which  would  discharge  him 
from  liability  for  the  debt  for  which  the 
check  was  given.  Id. 

c.  Other   Transactions;     Discounts,   etc. 

Bank  Taking  Note  as  Collateral  as  Bona 
Fide  Purchaser,  see  Bills  and  Notes, 
261. 

Depositor  Giving  Check  to  Bank  in  Payment 
for  Negotiable  Paper  as  Bona  Fide  Pur- 
chaser, see  Jiills  and  Notes,  254. 

Rights  and  Liability  of  Bank  Paying  Draft 
with  Bill  of  Lading  Attached,  see  Bills 
of  Lading,  3-8. 

Furnishing  Money  to  Pay  Labor  Claims,  see 
Bonds,  18. 

Estoppel  of  Bank  as  to  Stolen  Money,  see 
Estoppel,  135. 

Usury  in  Transactions,  see  Usury,  L  c. 

For  Editorial  Notes,  see  infra,  VIII.  §  17. 

273.  A  bank  is  not  liable  for  the  libelous 
protest  of  a  draft  sent  for  collection  by  a 
notary  employed  by  it  to  protest  negotiable 
paper,  although  he  is  an  employee  and 
agent  of  the  bank.  May  v.  Jones,  88  Ca. 
308.  14  S.  E.  552,  15:  637 

274.  A  national  bank  is  not  bound  by  the 
promise,  without  consideration,  of  its  cash- 
ier, to  pay  a  draft  drawn  or  to  be  drawn 
upon  a  depositor,  since  the  power  so  to  con- 
tract is  not  embraced  within  those  given 
by  U.  S.  Rev.  Stat.  §  5136,  subd.  7,  U.  S. 
Comp.  Stat.  1901,  p.  3456,  empowering  it 
to  exercise  all  incidental  powers  necessary 
to  carry  on  the  business  of  banking  by  dis- 


224 


BANKS,  IV.  c. 


counting  and  negotiating  notes,  drafts,  bills, 
and  other  evidences  of  debt,  receiving  de- 
posits, luying  and  selling  exchange,  coin, 
and  bullion,  loaning  money  on  personal  se- 
curity, and  issuing  and  circulating  notes. 
Flannagan  v.  California  Nat.  Bank,  56  Fed, 


959, 


23:  836 


275.  That  a  mortgage  to  cover  advances 
bv  a  bank  runs  to  the  cashier  individually, 
and  not  to  the  bank,  will  not  prevent  its 
enforcement  in  favor  of  the  bank,  if  no  one 
will  be  prejudiced  by  the  fact  that  it  was 
taken  in  that  form.  Chafey  v.  Mathews, 
104  Mich.  103,  62  N.  W.  141,  27:  558 
Guaranty. 

See  also  supra,  32,  303. 

276.  A  national  bank  may  guarantee  the 
payment  of  commercial  paper  as  incidental 
to  the  exericse  of  its  power  to  buy  and  sell 
the  same.  Thomas  v.  City  Nat.  Bank,  40 
Neb.  501,  58  N.  W.  943,  24:  263 
Disccunts  generally. 

Surrender  by  Bank  of  Preference  from  Bank- 
,    rupt  Customer,  see  Bankruptcy,  45,  46. 

Bank  Discounting,  as  Bona  Fide  Purchaser, 
see  Bills  and  Notes,  243,  252. 

Discrimination  as  to,  see  Constitutional 
Law,  514. 

Discounting  of  Three  Notes  as  Entire  Trans- 
action, see  Contracts,  302. 

Imputing  to  Bank  Officer's  Knowledge  in 
Matters  Concerning,  see  Notice,  67-70. 

Usury  in,  see  Usurj',  33-36. 

See   iilso  supra,  2;    Fraud   and   Deceit,   63. 

For  Editorial  Notes,  see  infra,  VIIT.  §  17.  _ 

277.  A  discount  is  a  loan  upon  an  evi- 
dence of  debt,  where  the  compensation  for 
the  use  of  the  money  until  the  maturity  of 
the  debt  is  deducted'  from  the  principal  and 
retained  by  the  lender  at  the  time  of  making 
the  loan.  Youngblood  v.  Birmingham  Trust 
&  S.   Co.  95  Ala.  521,   12  So.  579,      20:  58 

277a.  A  bank  does  not  become  a  purchas- 
er of  negotiable  paper  by  discounting  it  for 
one  not  its  debtor  at  the  time,  and  placing 
the  amount  to  the  credit  of  the  holder  by 
wav  of  denosit.  Warman  v.  First  Nat. 
Bank,  185  111.  60,  57  N.  E.  6,  49:  412 

278.  The  maker  of  a  note  cannot  show  that 
a  bank  which  discounted  it  did  not  become 
its  purchaser  merely  by  showing  that  the 
proceeds  were  placed  to  the  credit  of  the 
transferrer,  but  must  prove  by  the  state 
of  accounts  between  the  bank  and  the  trans- 
ferrer that  it  was  not  such,  or  had  not,  by 
the  drawing  of  the  deposit,  become  such,  as 
to  make  the  bank  a  purchaser.  Id. 

279.  Absence  of  an  assignment,  or  an  as- 
signment without  recourse,  anJ  the  nonac- 
countability  of  the  assignor  for  the  value 
of  the  note,  are  necessary  to  make  a  trans- 
fer of  a  note  to  a  bank  for  value,  before  ma- 
turity in  the  usual  course  of  discounting, 
and  without  notice  of  any  infirmity,  a  bar- 
ter and  sale  as  distinguished  from  a  dis- 
count. Nicholson  v.  New  Castle  Nat.  Bank. 
92  Ky.-  251,  17  S.  W.  627.  16:  223 

280.  The  purchase  by  a  bank  of  a  note 
by  a  lumping  trade  which  results  in  a  great- 
er discount  than  would  be  produced  by  an 
exact  calculation  at  the  usual  rate  does  not 
deprive  the  paper  of  its  standing  as  a  bill 


of  exchange,  if  the  circumstances  attending 
the  transaction  to  show  a  discount,  and  not 
a  bargain  and  sale.  Id. 

281.  The  title  of  a  note  and  its  negotia- 
bility are  not  affected  by  the  fact  that  a 
national  bank  discounts  it  at  a  usurious 
rate  of  interest,  although  the  bank  thereby 
forfeits  the   entire   interest.  Id. 

282.  Knowledge  on  the  part  of  a  bank  ' 
when  discounting  drafts  that  they  were 
given  in  consideration  of  a  promise  to  de- 
liver coal  in  the  future,  will  not  a1;ect  its 
right  to  enforce  payment  of  them,  although 
the  promise  is  not  complied  with,  if  it  took 
the  drafts  for  value  before  maturity  and 
before  the  time  for  delivery  had  arrived. 
Tradesmen's  Nat.  Bank  v.  Curtis,  167  N.  Y. 
194,  60  N.  E.  429,  52:  430 
Discounting  for  agent. 

283.  A  bank  which,  with  knowledge  that 
a  person  holds  negotiable  paper  simply  as 
agent,  discounts  the  paper  for  the  agent's 
own  benefit,  relying  on  his  statement  that 
he  has  secured  authority  to  discount  the 
paper  for  himself,  acts  as  its  peril.  Mer- 
chants' &  M.  Nat.  Bank  v.  Ohio  Valley 
Furniture  Co.  57  W.  Va.  625,  50  S.  E.  880, 

70:  312 

284.  A  bank  discounting  negotiable  paper, 
with  knowledge  that  the  person  from  whom 
it  is  taken  holds  it  as  agent  only,  is 
bound  to  ascertain  the  extent  of  the  au- 
thority of  the  agent;  but,  in  the  absence 
of  knowledge  of  any  limitation  upon  the  au- 
thority apparently  conferred  by  the  princi- 
pal, it  may  rely  upon  such  apparent  author- 
ity. '  Id. 

285.  Knowledge  by  a  bank  that  a  person 
holds  negotiable  paper  as  agent  only,  pre- 
cludes the  bank  from  dealing  with  him,  in 
respect  thereto,  on  the  basis  of  title  or  own- 
ership in  him.  Id. 
Deceptive  credits. 

Question    for   Jury  as  to   Bank's  Liability, 

see  Trial,  492. 
See  also  supra,  42-47;      Fraud  and  Deceit, 

63,  72. 

286.  A  bank  falsely  certifying  that  an  in- 
surance company  has  its  authorized  capi- 
tal on  deposit,  for  the  purpose^of  inducing 
the  insurance  commissioner  to  grant  it  a 
license,  is  liable  to  persons  who  are  damaged 
by  the  purchase  of  the  stock  in  reliance 
thereon,  if  it  is  intended  for  the  informa- 
tion of  all  who  shall  be  disposed  to  deal 
in  the  company's  stock,  or  to  one  who.  de- 
siring to  purchase  stock,  applies  to  the  bank 
for  information,  and  is  referred  to  the  cer- 
tificate, and  who  purchases  in  reliance  there- 
on. Hindmpn  v.  First  Nat.  Bank,  50  C.  C. 
A.  623,  112  Fed.  931,  .57:  108 

287.  That  a  false  entry  of  a  credit  by  a 
banker  upon  the  pass  book  of  a  customer 
was  not  orisrinally  intended  to  mislead  a 
nerson  who  dealt  with  the  ciistomer  on  the 
faith  of  it  doss  not  necessarily  relieve  the 
banker  of  liability  for  loss  incurred  by  him 
in  reliance  upon  such  credit  and  the  conduct 
of  the  banker  when  inquired  of,  calculated 
to  induce  him  to  believe  that  the  credit  was 
crenuine.  .Tames  v.  Crosthwa'it,  97  Ga.  673, 
25  S.  E.  754,  36:  631 


BANKS,  IV.  d. 


225 


288.  A  banker  is  not  liable  to  a  third  per- 
son who  deals  with  a  customer  upon  the 
faith  of  an  apparent  credit  to  his  favor  in 
his  pass  book,  which  was  ab  initio  false, 
but  which  was  immediately  canceled  by 
another  entry  based  upon  the  customer's 
agreement  to  draw  at  once  a  check  for  the 
full  amount  of  the  credit,  in  the  absence 
of  other  acts  of  misconduct  on  the  part  of 
the  bank.  Id. 
Loaning  for  customsr. 

Evidence  of  Negligence  as  to,  see  Evidence, 
1734,  1941. 

289.  A  banker  who  loaned  money  for  a 
customer  Avithout  any  compensation  for  the 
service  is  liable  for  failure  to  exercise  the 
skill  and  knowledge  of  a  banker  engaged  in 
that  business, — especially  where  he  had 
promised  to  give  careful  attention  thereto. 
Jsham  V.  Post,  141  N.  Y.  100,  3*  N.  E.  1084, 

23:  90 

290.  Taking  stock  as  collateral  without 
"verification  of  its  validity  at  the  company's 
•office,  especially  if  there  is  nothing  in  the 
appearance  of  the  certificate  to  excite  sus- 
picion, is  not  negligence  on  the  part  of  a 
banker  in   making   a  loan   for   a  customer. 

Id. 

291.  A  banker  making  a  loan  for  a  cus- 
tomer on  collateral  securities  is  not,  for  the 
purpose  of  avoiding  loss  on  the  collaterals, 
bound  to  make  inquiry  as  to  the  solvency  of 
the  borrower,  if  he  was  reputed  to  be  re- 
sponsible when  the  loan  was  made,  and 
nothing  indicated  the  slightest  reason  for 
refusing  the  loan.  Id. 

292.  A  banker  is  not  chargeable  with  neg- 
ligence in  loaning  a  customer's  money  on 
raised  collateral,  if  the  forgery  was  such  as 
to  deceive  any  reasonable  scrutiny  of  a  fair- 
ly prudent  banker  knowing  the  signatures, 
I>ut  not  suspecting  fraud  in  the  body  of  the 
instrument.  Id. 

293.  The  loaning  of  money  for  depositors 
or  other  persons  is  not  within  the  authority 
of  a  national  bank.  Grow  v.  Coekrill,  63 
Ark.  418,  39  S.  W.  60,  36:  89 

294.  A  receiver  of  a  national  bank  is  not 
liable  for  the  act  of  its  president  in  loaning 
the  money  of  a  depositor,  apparently  as  an 
accommotlation,  but  really  for  his  own  bene- 
fit, taking  a  note  from  tlie  nominal  borrow- 
er secured  by  stock  in  the  bank  which  be- 
eom.-'s  worthless  and  the  nominal  borrower 
insolvent  by  the  failure  of  the  bank,  caused 
by  the  misconduct  of  the  president.  Id. 
Note  for  bank's  accommodation. 

295.  A  bank,  or  its  receiver,  cannot  recov- 
er on  a  note  made  for  its  accommodation 
for  use  at  the  clearing  house  upon  the  so-' 
lieitation  of  its  presirlent,  who  was  its  sole 
managing  officer.  Simons  v.  Fisher,  5  C.  C.  A. 
311,  17  U.  S.  App.  1,  55  Fed.  905,     20:  554 

296.  The  wrongful  appropriation  to  his 
own  use,  by  the  managing  officer  of  a  bank, 
of  an  accommodation  note  to  the  bank,  or 
its  proceeds,  which  was  obtained  by  him 
in  the  exercise  of  his  power,  will  not  render 
the  maker  liable  to  the  bank.  Id. 

297.  A  bank  cannot  set  up  its  own  want 
of  legal  capacity  to  take  a  note  for  its  own 
accommodation     for    use     at    the     clearing 

L.R.A.  Dig.— 15. 


house,  as  a  basis  for  the  enforcement  of 
payment  thereof  from  the  maker.  Id. 

Taking  check  for  payment. 

298.  A  bank  receiving  a  check  instead  of 
cash,  without  authority  from  its  principal, 
on  a  sale-  of  his  stock,  and  crediting  his  ac- 
count with  the  amount  of  it,  is  liable  to 
him  therefor  notwithstanding  the  fact  that 
the  check  proves  worthless,  and  irrespective 
of  the  question  of  its  diligence  in  attempt- 
ing to  collect  it.  Pepperday  v.  Citizens'  Nat. 
Bank,  183  Pa.  519,  38  Atl.  1030,  39:529 
Borrowing  money. 

299.  The  fact  that  an  officer  authorized 
to  borrow  money  for  a  bank  is  engaged  in 
defrauding  it  will  not  prevent  the  liability 
of  the  bank  on  a  loan  obtained  by  him  for 
the  bank  from  another  bank  which  has  no 
knowledge  of  his  fraud.  Chemical  Nat. 
Bank  v.  Armstrong,  16  U.  S.  App.  465,  31 
U.  S.  App.  75,  8  C.  C.  A.  155,  13  C.  C.  A. 
47,  59  Fed.  372,  65  Fed.  573,  28:  231 

300.  To  charge  a  national  bank  on  a  loan 
of  money,  the  persons  making  it  must  see 
that  the  officer  or  agent  acting  for  the  bank 
has  special  authority  to  borrow  money,  or 
that  his  act  is  ratified.  Id. 

d.  Clearing  House  Business, 

Time  to  Present  Checks  in  City  Containing 
Clearing  House,  see  Checks,  9. 

See  also  supra,  212,  295-297;  infra,  337, 
338;    Checks,  38, 

For  Editorial  Notes,  see  infra,  VIH.  §  17*^. 

301.  An  arrangement  between  a  clearing 
house  and  a  bank  which  is  one  of  its  mem- 
bers and  another  bank  which  is  not  a  mem- 
ber, whereby  the  latter  pays  the  clearing 
house  a  fee  for  the  privilege  of  being  repre- 
sented by  such  member,  and  makes  a  cer- 
tain deposit  of  money  and  securities  with 
such  member  in  consideration  of  the  lat- 
ter's  agreement  to  clear  through  the  clear- 
ing house  checks  drawn  upon  the  other 
bank,  while,  the  constitution  of  the  clear- 
ing house  prohibits  the  discontinuance  of 
such  arrangement  without  previous  notice, 
which  notice  shall  not  take  effect  until  the 
exchanges  of  the  morning  following  the  re- 
ceipt of  the  notice  shall  have  been  complet- 
ed,— constitutes  a  tripartite  agreement,  up- 
on ample  consideration,  for  the  mutual  ben- 
efit of  all  the  parties  who  enter  into  it. 
O'Brien  v.  Grant,  146  N.  Y.  163,  40  N.  E. 
871,  28:  361 

302.  A  bank  which  is  a  member  of  a 
clearing  house  and  bound  by  contract  and 
the  constitution  of  the  clearing  house  to 
cleSir  checks  drawn  on  another  bank,  which 
is  not  a  member,  until  the  completion  of 
exchanges  on  the  morning  after  notice  to 
terminate  the  arrangement,  is  not  relieved 
from  paying  such  checks  on  the  morning 
after  such  notice  by  reason  of  the  known 
insolvency  of  the  bank  on  which  they  were 
drawn.  Id. 

303.  A  bank  which  guaranteed  the  pay- 
ment of  the  checks  of  another  bank  that 
was  not  a  member  of  a  clearing  house  as- 
sociation, in  order  to  clear  its  checks,  and. 


226 


BANKS,  V. 


after  the  latter  bank  had  made  an  assign- 
ment for  creditors,  and  a  check  thereon 
which  had  been  certified  for  the  drawers 
had  been  refused  at  the  clearing  house,  paid 
the  chi-ck  in  pursuance  of  the  guaranty, — 
did  not  do  this  as  agent  of  the  other  bank, 
but  became  an  assignee  of  the  check,  with 
the  right  to  recover  thereon  against  the 
drawers.  Voltz  v.  National  Bank,  158  111. 
532.  42  N.  E.  69,  30:  155 

.104.  Clearing  house  rules  that  paper  not 
owned  by  a  bank,  but  deposited  for  clear- 
ance, shnll  bear  a  stamped  indorsement 
which  shall  guarantee  the  validity  of  all 
prior  indorsements,  abrogates,  as  between 
members  of  the  clearing  house,  a  statutory 
provision  that  a  general  indorsement  war- 
rants that  the  paper  is  "in  all  resnects  what 
it  purports  to  be."  Crocker-Woolworth 
Nat.  Bank  v.  Nevada  Bank,  139  Cal.  564. 
73  Pac.  456,  63:245 

305.  The  equities  and  rights  arising  from 
express  agreement,  or  implied  from  the 
nature  of  dealings  between  a  national  bank 
and  a  clearing  house  association  or  the 
other  members  thereof  prior  to  the  closing 
of  the  bank,  must  be  preserved  and  enforced 
in  settling  its  aflfairs  bv  a  receiver.  Yard- 
lev  V.  Philler,  10  C.  C.  A.  562,  62  Fed. 
645.    17   U.   S.   App.   647,  25:  824 

[Koversed  bv  the  Supreme  Court  of  the 
United  States  in  167  U.  S.  344,  42  L.  ed. 
192.  17  Sup.  Ct.  Rep.  835.] 


V.  Insolvency. 

In  Case  of  Collections,  see  supra,  IV.  b,  2. 

Assets  Passing  under  Assignment  for  Credit- 
ors, see  Assignments  for  Creditors,  59. 

Attachment  of  Property  of  Insolvent  Bank, 
see  Attachment,   1. 

Demand  for  Payment  of  Note  on  Bank  Ex- 
aminer, see  Bills  and  Notes,  167. 

Officer's  Liability  on  Bond  for  Loss  by  Fail- 
ure of  Bank,  see  Bonds,  II,  c,  2. 

Federal  .Jurisdiction  of  Action  by  Agent, 
see  Courts,  333. 

Presumption  as  to,  see  Evidence,  405,  706. 

Interest  on  Dividends,  see  Interest,  55- 
58. 

Intere.st  on  Deposits  in  Case  of,  see  Inter- 
est, 77. 

Liability  of  Probate  Judge  for  Loss  of 
Public  Fuhds  by,  see  Judges,  65. 

Officers'  Liability  for  Loss  by  Failure  of 
Bank,  see  Officers.  205,  206. 

Substitution  of  Agent  in  Place  of  Re- 
ceiver of,  see  Parties,  219. 

Taking  Draft  in  Payment  after  Bank's  In- 
solvency, see  Payment,   11. 

Rights  of  Surety  Satisfying  Claims  Due  to, 
see  Principal  and  Surety,  53. 

Receivers  for,  see  Receivers,  15,  17,  66, 
85. 

Set-Off  in  Case  of.  see  Set-OfT  and  Counter- 
claim,  44-53.   66. 

Taxation  of  Insolvent  Bank,  see  Taxes,  122, 
170. 

See  also  supra,  15.  24,  25,  30.  206-208,  303, 
305;  infra,  380,  384,  385;  Corpora- 
tions,  780. 


For  Editorial  Notes,  see  infra,  VIIL  §§  IS- 
22,  25. 

306.  The  general  scope  of  the  duties  and 
powers  of  an  agent  appointed  under  the 
national  banking  act,  in  place  of  a  re- 
ceiver, are  those  of  the  receiver  and  of  all 
receivers  winding  up  an  insolvent  corpora- 
tion.   McConville  v.  Gilmour,  36  Fed.  277, 

1:  498 

307.  The  closing  of  the  doors  of  a  na- 
tional bank  by  the  comptroller  of  the  cur- 
rency on  account  of  insolvency,  and  the 
appointment  of  a  receiver  and  placing  him 
in  charge  of  its  assets  to  administer  them 
for  the  benefit  of  creditors,  does  not  ex- 
tinguish the  corporation  or  work  a  for- 
feiture of  its  charter.  Hutchison  v.  Crutch- 
er,  98  Tenn.  421,  39  S,  W.  725,  '    37:  89 

808.  On  indorsement  "for  deposit"  of  a 
check  which  is  credited  as  cash  by  the 
bank  which  receives  it,  and  thereafter  by 
indorsement  in  the  same  form  is  trans- 
ferred to  another  bank  which,  in  good  faith, 
credits  it  as  cash  and  pays  the  proceeds 
to  the  former  bank,  which  afterwards  makes 
an  assignment  for  creditors,  the  title  to 
the  check  must  be  held  to  be  in  the  bank 
which  holds  it  and  has  paid  for  it.  Ditch 
V.  Western  Nat.  Bank,  79  Md.  192,  29  Atl. 
72,  138,  23:  164 

Rights   in   deposit   after  insolvency   gener- 
ally. 
For  Editorial  Notes,  see  infra,  VIII.  §§  19, 
20. 

309.  A  cashier's  check  given  to  a  de- 
positor as  a  mere  acknowledgment  of  in- 
debtedness on  the  par*  of  the  bank  to  him, 
being  in  legal  effect  the  same  as  a  certifi- 
cate of  deposit  or  a  certified  check,  does 
not  amount  to  an  assignment  to  him  by  the 
bank  of  the  amount  of  the  check,  so  as  to 
give  him  any  better  right  against  the  re- 
ceiver of  the  bank  than  he  would  have  had 
by  reason  of  his  original  deposit.  Clark 
V.  Chicago  Title  &  T.  Co.  186  111.  440, 
57  N.  E.  1061,  53:  232 
Rights  in  deposit  taken  while  insolvent. 
Election  of  Remedy  as  to,  see  Election  of 

Remedies,  56. 
Estoppel      to     Demand     Return     of     Full 

Amount,  see  Estoppel,  241. 
Evidence    as    to    Insolvency,    see    Evidence, 

2110. 
Laches    Preventing    Relief,  '  see    Limitation 

of  Actions,  42. 
See   also    supra,   66,   269;    infra,   386-395. 

310.  A  shareholder  is  not,  by  reason  of 
his  relation  to  the  bank,  precluded  from 
recovering  back  a  deposit  fraudulently 
taken  by  the  bank  when  insolvent.  Rich- 
ardson V.  Oliver,  44  C.  C.  A.  468,  105  Fed. 
277,  53:  113 

311.  Checks  and  drafts  fraudulently  re- 
ceived by  a  bank  after  its  officers  know 
of  its  insolvency  can  be  reclaimed  if  they 
can  be  found  and  are  not  yet  collected  and 
credited  when  the  bank  closes  its  doors. 
Bruner  v.  First  Nat.  Bank,  97  Tenn.  540, 
37  S.  W.  286,  34:  532 

312.  The  identical  proceeds  of  a  check 
or  draft  fraudulently  received  on  deposit  by 


BANKS.  V. 


227 


an  insolvent  bank  are  sufficiently  traced  by 
the  depositor  when  it  appears  that  they 
are  included  in  a  fund  paid  over  to  the  re- 
ceiver of  the  bank  by  a  correspondent  as 
the  proceeds  of  credits  made  after  the  bank 
failed,  but  before  notice  thereof  to  the  cor- 
respondent. Id. 

313.  A  deposit  obtained  by  fraud  when 
a  bank  is  hopelessly  insolvent  creates  a 
trust  in  favor  of  the  depositor,  which  can 
be  recovered  from  a  receiver  of  the  com- 
pany, even  if  the  identical  money  deposit- 
ed does  not  pass  into  his  hands,  where  the 
funds  received  by  him  are  in  any  event 
increased  by  the  amount  of  the  deposit. 
Richardson  v.  New  Orleans  Debenture  Re- 
demption Co.  '42  C.  C.  A.  619,  102  Fed.  780, 

52:  67 

314.  Crediting  checks  and  drafts  to  a 
bank  which  has  failed,  although  done  by 
a  correspondent  which  does  nou  yet  know 
of  the  failure,  cannot  prejudice  the  rights 
of  persons  who  deposited  such  paper  in  the 
insolvent  bank  to  recover  back  their  paper 
or  its  proceeds,  when  the  deposit  was  re- 
ceived after  the  officers  of  the  bank  knew 
it  to  be  insolvent.  Bruner  v.  First  Nat. 
Bank,  97  Tenn.  540,  37  S.  W.  286,       34:  532 

315.  Fraud  in  receiving  a  deposit  of  checks 
or  drafts  after  bank  officials  know  that  it 
is  insolvent  will  not  give  the  depositor  a 
preferential  claim  against  assets  in  the 
hands  of  the  receiver  of  the  bank,  if  the 
bank  before  its  failure  had  received  the 
proceeds  of  such  paper  or  credit  therefor 
from  a  correspondent,  although  the  bank 
had  on  hand  when  it  failed  and  always 
after  the  deposits  were  made  more  than 
the  amount  thereof  in  cash.  Id. 

316.  A  cash  deposit  fraudulently  received 
by  an  insolvent  bank  after  its  officers  know 
of  its  insolvency  cannot  be  reclaimed  from 
its  receiver,  when  it  went  into  the  general 
funds  of  the  bank  and  cannot  be  identi- 
fied and  separated  from  other  funds  on 
hand  when  the  receiver  took  charge.         Id. 

.317.  A  credit  for  a  draft  given  by  one 
bank  to  another  on  the  same  day  that  the 
latter  failed  will  not  be  presumed,  in  the 
absence  of  proof,  to  have  been  given  after 
the  failure  in  order  to  entitle  one  who  de- 
posited the  draft  in  the  insolvent  bank  after 
its  officers  knew  it  was  insolvent  to  reclaim 
the  proceeds  of  the  draft  out  of  the  assets 
in  preference  to  other  creditors  who  seek  to 
have  them  distributed  pro  rata.  Klepper  v. 
Cox,  97  Tenn.  534,  37  S.  W.  284,  34:  536 
318.  Depositors  in  an  insolvent  partner- 
ship bank,  who  take  dividends  on  account 
of  deposits  which  were  voluntarily  received 
after  the  banker  knew  of  his  insolvency, 
have  no  greater  equities  than  other  con- 
tract creditors  of  the  firm  against  the  as- 
sets of  a  corporation  which  was  entirely 
owned  by  one  member  of  the  firm.  Potts  v. 
Schmucker,  84  Md.  535,  36  Atl.  592,  35:  392 
Trust  fund  generally. 
Following     Trust     Funds     Generally,     see 

Trusts,  V. 
See   also   supra,   260-269,   310-318. 
For    Editorial    Notes,    see    infra,    VIII.    § 

20. 


319.  A  receiver  of  a  bank  in  which  a 
trust  fund  was  deposited  cannot  be  re- 
quired to  repay  it  in  preference  to  the 
claims  of  other  creditors,  unless  the  trust 
fund  can  be  identified  or  traced  into  some 
other  spoeifie  fund  or  property.  Marquette 
Fire  &  W.  Comrs.  v.  Wilkinson,  119  Mich. 
655,  78  N.  W.  893,  44:  493 

320.  The  casih  found  among  the  assets  of 
an  insolvent  bank  at  the  time  of  its  failure 
will  be  first  appropriated  to  the  claim  of  a 
beneficiary  of  trust  money  which  the  bank 
has  mingled  with  its  own  funds,  unless  it 
is  affirmatively  shown  that  these  cash  as- 
sets are  not  part  of  the  trust  fund.  State 
V.   Edwards,   61   Neb.    181,   85   N.   W.   43. 

52:  858 

321.  The  statutory  prohibition  against 
preferences  in  the  distribution  of  assets  of 
insolvent  national  banks  will  not  prevent  a 
cestui  f]ue  trust  from  following  trust 
money  held  for  him  by  such  bank  as  trus- 
tee, into  any  new  investment  thereof  made 
by  the  bank,  capable  of  identification,  but 
will  prevent  its  oeing  followed  after  it  has 
lost  its  identity  by  being  mingled  with  the 
funds  of  the  bank.  Philadelphia  Nat.  Bank 
V.  Dowd,  38  Fed.  172,  2:  480 

322.  Money  received  by  a  banker  from 
one  about  to  lease  property,  to  be  kept  as 
security  for  the  performance  of  his  un- 
dertaking to  the  property  owner,  is  held 
by  the  bank  as  tru.stee,  and  it  acquires  no 
title  to  it  as  part  of  its  general  fund,  al- 
though, in  accordance  with  its  plan  of  book- 
keeping, it  makes  out  a  certificate  of  de- 
posit, which  it  pins  to  the  retained  dupli- 
cate of  the  receipt  given  the  depositor,  and 
mingles  the  money  with  its  funds.  Wood- 
house  v.  Crandall,  197  111.  104,  64  N.  E. 
292,  58:  385 

323.  Money  deposited  in  a  bank  for  pay- 
ment to  another  person  on  his  presentation 
of  a  warranty  deed,  with  abstract  showr 
ing  good  title  to  the  land,  for  which  the  de- 
positor takes  a  receipt  reciting  the  pur- 
pose for  which  the  money  is  left,  consti- 
tutes a  trust  fund,  and  not  assets  of  the 
bank  which  can  pass  to  a  receiver  of  the 
bank,  although  the  bank  on  receipt  of  the 
money  gave  credit  to  the  depositor,  with- 
out his  knowledge  or  consent,  and  mingled 
the  money  with  that  of  the  bank.  Kimrael 
V.  Dickson,  5  S.  D.  221,  58  N.  W.  561, 

25:  309 
323a.  The  general  deposit  by  an  adminis- 
trator, of  moneys  of  the  estate  in  a  bank 
owned  by  him,  destroys  its  identity  if  any 
portion  of  the  money  in  the  bank  is  after- 
ward checked  out,  so  that  it  is  impossible 
to  trace  the  fund  as  a  trust  fund  into  the 
hands  of  the  bank's  assignee  in  case  of  in- 
solvency, although  more  than  the  amount  of 
such  deposit  remains  in  the  bank.  Shute 
V.  Hinman,  34  Or.  578,  56  Pac.  412,  58  Pac. 
882,  47:  265 

3/4.  Money  remaining  in  the  vaults  of  a 
bank  and  on  deposit  by  it  in  other  banks 
when  the  banker  becomes  insolvent  will 
be  held  to  constitute  part  of  a  trust  fund 
of  greater  amount,  which  had  been  received 
by   the  banker;    but  it   is   otherwise    with 


228 


BANKS,  V. 


commercial  paper  representing  loans  made 
by  him  before  assignment.  State  v.  Foster, 
5  Wyo.  199,  38  Pac.  926,  29:  226 

325.  In  case  a  bank  fails  after  receiving 
money  to  be  kept  as  a  trust  fund  for  the 
benefit  of  the  depositor,  the  presumption 
is  that  enough  of  the  money  in  its  posses- 
sion when  it  closes  its  doors  to  satisfy  it 
belongs  to  the  trust,  and,  in  case  the  bal- 
ance on  hand  does  not  equal  the  trust 
fund,  such  balance  will  all  be  turned  over  to 
the  beneficiarv.  Woodhouse  v.  Crandall, 
197  III.  104,  64  N.  E.  292,  58:  385 
Trust  in  public  funds. 

326.  Public  moneys  placed  by  general 
•deposit  in  a  bank  do  not  establish  a  trust 
in  the  estate  of  the  banker  on  his  insol- 
vency, except  so  far  as  they  can  be  traced 
into  some  specific  fund  or  property.  State 
V.  Foster,  5  Wyo.  199,  38  Pae.  926,      29:  226 

327.  Public  moneys  deposited  by  an  of- 
ficer in  a  bank  of  which  he  was  a  partner 
constitute  a  trust  fund,  even  if  he  had  the 
legal  title  to  the  monev-  Marquette  Fire 
■&  W.  Comrs.  v.  Wilkinson,  119  Mich.  655, 
78  N.  W.  893,  44:  493 

328.  City  funds  received  on  deposit  by  a 
banker,  but  redeposited  by  him  in  other 
banks  under  an  arrangement  for  sharing 
in  the  deposits,  under  which  he  receives 
from  them  the  same  interest  that  he  pays 
the  city,  and  agrees  that  they  shall  be 
-drawn  only  to  paj'  city  orders,  are  held  in 
trust  for  the  city  as  against  his  assignee  for 
•creditors.  Marquette  v.  Wilkinson,  119 
Mich.  413,  78  N.  W.  474,  43:  840 
"Rights  of  holders  of  checks. 

:See  also  supra,  308. 

329.  The  holder  of  a  check  drawn  by  a 
Ibank  which  becomes  insolvent  before  its 
presentation,  whereupon  the  drawee  bank, 
■without  knowledge  of  the  check,  applies 
the  deposit  upon  its  own  claims  against 
the  insolvent  bank,  is  entitled  to  be  sub- 
rogated to  any  collateral  which  the  drawee 
bank  has  after  its  own  claims  are  satisfied. 
Wyman  v.  Ft.  Dearborn  Nat.  Bank,  181 
111.  279.  54  N.  E.  946,  48:  565 

330.  The  insolvency  of  a  national  bank 
and  its  passing  into  the  hands  of  a  receiver 
w^ill  destroy  the  right  ©f  holders  of  its 
checks  to  the  funds  called  for  by  them, 
•even  in  a  state  where  the  holder  of  a  check 
is  regarded  as  the  owner  of  the  fund  and 
entitled  to  maintain  an  action  for  it  against 
the  drawee.  First  National  Bank  v.  Sel- 
<ien.  56  C.  C.  A.  532,  120  Fed.  212,  62:  559 

331.  The  inconvenience  which  will  accrue 
to  the  drawee  of  checks  of  a  national  bank 
from  suits  by  holders  upon  its  refusal  to 
pay  them  when  the  drawer  becomes  in- 
solvent gives  it  no  right  to  make  the  pay- 
ment to  the  injury  of  the  general  creditors 
•of  the  insolvent  bank.  Id. 

332.  That  the  comptroller  of  the  cur- 
rency has  taken  charge  of  a  bank  at  the 
time  of  the  presentation  of  a  check  by  a 
third  person  holding  it  in  the  regular  course 
of  business  does  not  authorize  the  applica- 
tion subsequent  to  such  presentation  of  the 
fund  to  the  payment  of  a  note  held  by 
the  bank  against  the  depositor,  as  neither 


the  comptroller  nor  the  receiver  appointed 
by  him  has  any  more  right  to  transfer 
such  fund  than  the  bank  itself.  Niblack 
V.  Park  Nat.  Bank,  169  111.  517,  48  N.  E. 
438,  39:  K9 

Credits  on  claims. 
See  also  supra,  318. 

333.  The  claims  of  creditors  of  an  in- 
solvent national  bank  cannot  be  reduced 
by  any  credit  for  collections  from  collateral 
made  after  the  declared  insolvency  of  the 
bank,  whether  before  or  after  proof  of 
claims.  Chemical  Nat.  Bank  v.  Armstrong, 
16  U.  S.  App.  465,  31  U.  S.  App.  75,  8  C. 
C.  A.  155,  13  C.  C.  A.  47,  59  Fed.  372,  65 
Fed.  573,  28:  231 

334.  The  collection  by  a  creditor  of  an  in- 
solvent bank,  after  receiving  part  of  his 
claim  out  of  dividends  from  its  assets,  of 
another  part  by  enforcing  the  liability  of 
stockholders,  will  not  prevent  the  computa- 
tion of  subsequent  dividends  to  be  paid 
from  corporate  assets  upon  the  claim  as  it 
originally  existed,  in  the  same  proportion 
as  is  awarded  to  other  creditors.  Sacra- 
mento Bank  v.  Pacific  Bank,  124  Cal.  147,  56 
Pac.  787,  45:  863 
Unlawful  preferences. 

To  Officers,  Presumption  of  Knowledge   of 

Insolvency,  see  Evidence,  312. 
See  also   supra,   321,  331. 
For  Editorial  Notes,  see  infra,  VIII.  §  19. 

335.  The  preference  under  state  law  of 
the  debt  of  an  insolvent  national  bank  for 
a  lawful  deposit  by  a  savings  bank  is  not 
such  a  preference  as  is  prohibited  by  U.  S. 
Rev.  Stat.  §§  5236,  5242,  U.  S.  Comp.  Stat. 
1901,  pp.  3508,  3517,  requiring  a  ratable  dis- 
tribution among  creditors,  and  prohibiting 
preferences  in  contemplation  of  or  after 
committing  an  act  of  insolvency.  Elmira 
Sav.  Bank  v.  Davis,  142  N.  Y.  590.  37 
N.  E.  646,  25 :  546 

[Reversed  on  Other  Grounds  by  the  Su- 
preme Court  of  the  United  States  in  161  U. 
S.  275.  40  L.  cd.  700,  16  Sup.  Ct.  Rep.  502.] 

336.  The  prohibition,  under  U.  S.  Rev. 
Stat.  §  5242,  U.  S.  Comp.  Stat.  1901,  p.  3517, 
against  transfers  by  a  national  banking  as- 
sociation after  commission  of  an  act  of  in- 
solvency or  in  contemplation  thereof,  wfth 
a  view  to  the  preference  of  one  creditor, 
does  not  include  a  pledge  of  its  securities 
to  a  reasonable  amount  to  raise  money  to 
meet  an  unexpected  run,  although  the  bank 
is  then  in  fact  insolvent,  if  it  has  not  be- 
come reasonably  apparent  to  its  officers  that 
it  will  presently  be  unable  to  meet  its  ob- 
ligations, and  will  be  obliged  to  suspend 
its  ordinarv  operations.  Armstrong  v. 
Chemical  Nat.  Bank,  41  Fed.  234,         6:   226 

337.  A  preference  to  creditors  of  an  insol- 
vent bank  in  violation  of  the  New  York 
corporation  law  of  1892,  chap.  687,  §  48, 
prohibiting  transfers  with  intent  to  give  a 
preference  when  the  corporation  is  insol- 
vent or  its  insolvency  is  imminent,  is  not 
made  by  the  payment  of  checks  drawn  on 
an  insolvent  bank,  in  the  course  of  ex- 
changes at  a  clearing  house,  by  a  member 
of  the  clearing  house  which  knew  of  the  in- 
solvency, but  by  its  contract  and  the  consti- 


BANKS,  VI. 


22» 


tution  of  the  clearing  house  was  under  ob- 
ligation to  pay  them,  and  held  securities 
which  it  was  entitled  to  and  did  apply  to 
its  own  reimbursement.  O'Brien  v.  Grant, 
146  N.   Y.    163,  40   N.   K   871,  28:  361 

338.  The  appropriation  on  its  own  claims, 
by  a  clearing  house,  after  the  closing  of  a 
national  bank  by  an  examiner,  of  money 
paid  by  other  banks  on  a  call  by  the  clear- 
ing house  to  take  up  drafts  and  checks  on 
the  insolvent  bank,  which  they  had  sur- 
rendered to  its  clerk  in  due  course  of  busi- 
ness, in  an  exchange  at  the  clearing  house 
before  the  bank  suspended  and  which  had 
been  left  there  as  security  for  a  balance 
due  from  it  to  the  clearing  house, — is  not 
an  unlawful  preference,  as  the  subsequent 
transactions  do  not  rescind  the  exchange 
of  securities  made  while  the  bank  was  do- 
ing business;  and  gives  no  riglit  of  action 
to  the  receiver  of  the  bank  against  the 
clearing  house  committee  for  the  amount 
of  the  drafts  and  checks  on  other  banks 
which  it  surrendered  on  the  exchange. 
Yardley  v.  Thiller,  17  U.  S.  App.  647,  10 
C.  C.  A.  562,  62  Fed.  045,  25:  824 

[Reversed  by  the  Supreme  Court  of  the 
United  States 'in  167  U.  S.  344,  42  L.  ed. 
192,  17  Sup.  Ct.  Rep.  835.] 

339.  Payments  to  a  depo-sitor  during  a 
run  on  a  bank  and  after  the  cashier  has  per- 
suaded some  persons  not  to  withdraw  their 
deposits,  but  when  the  bank  has  assets 
sufficient  so  that  its  officers  hope  and  ex- 
pect to  continue  business  and  be  able  to 
pay  all  the  debts  of  the  bank,  are  not  made 
with  a  view  to  prevent  the  application  of 
the  assets  of  the  bank  in  the  manner  pre- 
scribed by  statute,  or  with  a  view  to  the 
preference  of  that  depositor  over  other  cred- 
itors, within  the  meaning  of  3  How.  (Mich.) 
Anno.  Stat.  §  3208e6.  Stone  v.  Jenison,  111 
Mich.  592,  70  N.  W.  149,  36:  675 

340.  Payment  by  an  insolvent  bank  of  a 
check  of  a  company  in  which  the  president 
of  the  bank  held  most  of  the  stock,  and  of 
a  note  on  which  its  directors  are  indorsers, 
although  it  has  not  committed  the  formal 
act  of  insolvency,  will  be  held  to  be  an  un- 
lawful preference,  whether  the  estate  be 
administered  in  equity  or  under  the  in- 
solvent law,  and  will  be  set  aside  in  an  ac- 
tion by  receivers  appointed  under  Md.  Code 
Gen.  Pub.  Laws,  art.  23,  relating  to  the 
dissolution  of  insolvent  corporations,  art. 
47,  §  22,  of  which  prohibits  preferences 
made  when  insolvent  or  in  contemplation  of 
insolvency.  James  Clark  Co.  v.  Colton,  91 
Md.  195,  46  At).  386,  49:  698 

341.  A  withdrawal  of  the  funds  of  a  cor- 
poration from  a  bank  that  is  about  to  fail, 
under  advice  of  the  president  of  the  cor- 
poration, who  also  signed  a  check  for  the 
money,  although  he  was  also  a  director  of 
the  bank  and  his  knowledge  of  its  condition 
was  acquired  by  him  as  such  director,  does 
not  violate  the  New  YorK  stock  corpora- 
tion law,  §  48,  which  prohibits  any  transfer 
of  assets  or  payment  by  the  bank  or  any  of- 
licer.  director,  or  stockholder  thereof,  with 
intent  to  prefer  any  creditor,  when  the 
bank    is   insolvent   or   its   insolvency   immi- 


nent.    O'Brien    v.    East    River    Bridge    Co. 
161  N.  Y.  539,  56  N.  E.  74,  48:  122 

342,  A  communication  by  a  director  of  a 
bank  of  his  knowledge  that  it  is  about  to 
fail,  though  made  to  a  depositor  which  is  a 
corporation  of  which  he  is  president,  does 
not  violate  the  New  York  stock  corpora- 
tion law,  §  48,  which  prohibits  a  bank 
which  is  insolvent  or  the  insolvency  of 
which  is  imminent,  or  any  officer  or  director 
thereof,  from  giving  a  preference  to  any 
particular  creditor  by  transfer  of  assets, 
payment,  suffering  judgment,  the  creation 
of  a  lien,  or  the  giving  of  security.  Id. 


VI.  Savings  Banks. 

Bond  to,  see  Bonds,  6. 
Presumption  as  to  Deduction  from  Old  De- 
posit, see  Evidence,  641. 
Change  of  Ownership  by  Wife's  Deposit  of 

Husband's  Money  in,  see  Husband  and 

Wife,  56. 
Imputing  Knowledge  of  Officer  to  Bank,  see 

Notice,  05,  66. 
Taxation  of  Mortgages  Held  by,  see  Taxes, , 

75. 
Testamentary  Nature  of  Entry  of  Account 

in,  see  Wills,  11. 
See  also  supra,  35. 
For  Editorial  Notes,  see  infra,  VIII.  §§9, 

23,  24. 

343.  The  Kansas  banking  law  of  1891 
suspended  the  savings  bank  act  of  1868,  and 
thereafter  all  savings  banks  previously  or- 
ganized and  engaged  in  the  business  of  re- 
ceiving money  on  deposit  were  amenable  to 
its  provisions.  West  v.  Topeka  Sav.  Bank, 
66  Kan.  524,  72  Pac.  252,  63:   137 

344.  A  corporate  debt  or  liability  is  creat- 
ed by  a  deposit  in  a  savings  bank  having  a 
capital  stock  and  stockholders,  which  i» 
organized  under  Cal.  Civ.  Code,  div.  1,  pt. 
4,  tit.  10.  Wells  V.  Black,  117  Cal.  157,  48 
Pac.  1090,  37:  619 
Powers. 

345.  A  savings  institution  has  power  to 
borrow  money.  Heironimus  v.  Sweeney,  83 
Md.   146,   34  Atl.  823,  33:  99 

346.  Speculative  dealing  in  cotton  futures 
is  not  authorized  by  a  clause  in  the  char- 
ter of  a  savings  bank  giving  it  power  to  buy 
and  sell  exchange,  bullion,  bank  notes,  gov- 
ernment stocks,  and  other  securities.  Jemi- 
son  V.  Citizens  Sav^  Bank,  122  N.  Y.  135,  25 
N.  E.  264,  9:  708 

347.  Where  brokers  purchase  and  hold 
cotton  futures  in  their  own  names  in  com- 
pliance with  the  orders  of  a  savings  bank, 
there  never  being  any  delivery  of  cotton  or 
other  property,  or  transfer  of  any  title 
thereto,  to  the  bank,  it  is  not  estopped  to 
set  up  the  defense  of  ultra  vires  when  sued 
for  commissiions  and  the  amount  expended 
by  the  brokers  in   purchasing  the   futures. 

Id. 

348.  Speculative  contracts  entered  into  by 
a  saving  bank  which  is  incorporated  with 
the  usual  powers  of  receiving  on  deposit 
and  loaning  money  and  discounting  notes, 
for  the  sale  or  purchase  of  cotton  futures. 


230 


BANKS,  VL 


subject   to  the  hazard   and   contingency   of 
yain  or  loss,  are  ultra  vires.  Id. 

340.  A  savinjrs  bank  with  power  to  re- 
ceive nione}^  on  deposit  and  to  discount 
notes  has  banking  powers,  within  the  mean- 
ing of  111.  Const,  art.  11,  §  5,  requiring  a 
statute  creating  corporations  with  banking 
powers  to  be  approved  at  a  general  election; 
and  it  is  immaterial  whether  it  has  any 
stockholders  or  not.  Reed  v.  People  ex 
rel.  Attorney  General,  125  111.  592,  18  N. 
E.  295,  1 :  324 

By-laws,  rules,  ani  agreements. 
Judicial  Notice  of,  see  Evidence,   101. 
See  also  infra,  369-377,  383. 
For  Editorial  Notes,  see  infra,  VIII.   §   24. 

350.  A  depositor  in  a  savings  bank  is 
bound  by  the  reasonable  rules  of  the  bank, 
to  which  he  assents  by  an  agreement  in 
writing.  Langdale  v.  Citizens'  Bank,  121 
Ga.  105,  48  S.  E.  708,  69-  341 

351.  Rules  of  a  savings  bank  governing 
its  contractual  relations  with  depositors 
need  not  be  shown  to  have  been  adopted 
formally  by  vote  of  the  trustees  of  the  in- 
stitution,  to   be   binding   on    depositors,   if 

.  they  have  been  long  in  use  with  the  knowl- 
edge and  approval  of  the  trustees.  Ladd  v. 
Auirusta  Sav.  Bank,  96  Me.  510,  59.  Atl. 
10l'2.  •  58:  288 

3.52.  A  depositor  in  a  savings,  bank,  who 
receives  a  bank  book  containing  rules  which 
affect  his  contractual  relations  with  the 
bank  and  its  liability  to  him,  which  he 
reads,  will  be  bound  by  them  if  he  con- 
tinues to  leave  his  deposit  in  the  bank  and 
to  make  additional  deposits.  Id. 

353.  A  rule  of  a  savings  bank  that  the 
institution  will  not  be  responsible  for  loss 
sustained  by  payment  to  a  stranger,  when 
the  depositor  has  not  given  notice  of  loss 
of  his  book,  since  the  offiters  of  the  insti- 
tution may  be  imable  to  identify  every  de- 
positor transacting  business  at  the  bank, 
does  not  relieve  the  officers  of  the  bank 
from  the  exercise  of  reasonable  care  to  pro- 
tect the  interests  of  the  depositor,  and 
prevent  loss  to  him  by  payment  to  a  per- 
.son  not  entitled  to  it.  Id. 

354-5.  A  savings  bank  whose  rules  permit 
withdrawal  of  money  by  the  depositor,  "or 
by  any  other  person  duly  authorized,"  acts 
at  its  peril  as  to  the  genuineness  of  orders, 
when  it  vmdertakes  to  make  payment  to  one 
purporting  to  hold  the  order  of  the  deposit- 
or. Id. 

356.  A  depositor  in  a'  savings  bank,  by 
accepting  and  using  a  deposit  book,  assents 
to  and  is  bound  by  the  rules  printed  therein 
regulating  the  method  of  withdrawing 
money.  Chase  v.  Waterbury  Sav.  Bank,  77 
Conn.   295.   59  Atl.   37,  69:  329 

357.  Failure  of  a  depositor  in  a  savings 
bank,  who  sent  his  deposit  by  letter,  to 
assent  to  the  by-laws  by  sjibscribing  his. 
name  in  a  book  kept  for  that  purpose,  will 
not  prevent  him  from  being  deemed  to  have 
assented  to  them,  where  he  retains  a  de- 
posit book  in  which  such  bv-laws  are  print- 
ed. GilTord  v.  Rutland  Sav.  Bank,  63  Vt. 
108,  21  Atl.  .340,  11:  794 

358.  A  by-law  of  a  savings  bank  declar- 


ing a  waiver  by  depositors  of  all  individ- 
ual liability  of  officers  or  stockholders, 
whether  founded  upon  Constitution  or  stat- 
utes of  the  state,  is  void,  since  by-laws  must 
be  consistent  with  the  Constitution  and 
laws.  Wells  v.  Black,  117  Cal.  157,  48  Pac. 
1090,  _  37:  619 

359.  An  agreement  printed  at  the  top  of 
each  page  of  what  is  called  a  "signature 
book"  of  a  savings  bank,  below  which  are 
ruled  lines  extending  across  the  page,  and 
under  these  the  spaces  divided  by  perpen- 
dicular lines,  is  not  made  binding  on  a 
depositor  by  his  writing  his  name  in  one 
of  the  ruled  columns  at  the  top  of  which 
is  the  word  "signature."  Id. 

360.  By-laws  printed  in  a  deposit  book 
given  for  a  deposit  in  a  savings  bank, 
which  is  a  stock  corporation  the  profits  of 
which  belong  to  the  stockholders,  are  not 
conclusively  presumed  to  receive  the  assent 
of  the  depositor, — at  least  where  he  is  not 
well  acquainted  with  the  English  language, 
— although  it  is  provided  therein  that  he 
will  assent  before  his  deposit  can  be  re- 
ceived. Ackenhausen  v.  People's  Sav.  Bk. 
110  Mich.  175,  68  N.  W.  118,  33:  408 

361.  An  agreement  between  a  depositor 
and  a  savings  bank  that  the  accruing  semi- 
annual interest  shall  be  left  in  the  institu- 
tion to  draw  interest  as  a  new  principal 
is  valid.  Heironimus  v.  Sweeney,  83  Md. 
146,  34  Atl.  823,  33:  99 
Negotiability  of  order  on. 

See  also  infra,  367. 

362.  An  order  on  a  savings  bank  is  not 
negotiable  when  upon  its  face,  although  be- 
low the  signature,  it  says:  "The  bank  book 
of  the  depositor  must  accompany  this  or- 
der," since  this  constitutes  a  contingency 
which  mav  impair  its  circulation.  White  v, 
Cu.shing.  88  Me.  339,  34  Atl.  164,  32:  590 

363.  An  order  on  a  savings  bank,  which 
has  at  the  top  the  words  "Return  notice 
ticket  with  this  order,"  and  at  the  bottom 
the  words  "Deposit  book  must  be  at  bank 
before  money  can  be  paid,"  is  not  negoti- 
able, as  the  production  of  such  ticket  and 
book  are  conditions  of  payment.  Iron  City 
Nat.  Bank  v.  McCord,  139  Pa.  52,  21  Atl. 
143,  11:559 
Rights  in  deposits  generally. 

Election  of  Remedy  by  Depositor,  see  Elec- 
tion of  Remedies,  45. 

For  Editorial  Notes,  see  infra,  VHI.  §§  9, 
24. 

364.  Savings  banks  in  Massachusetts  do 
not,  by  mere  force  of  their  relation  to  their 
depositors,  under  the  statutes  of  that  state, 

'  undertake   absolutely   to   pay   depositors   In 
j  full  at  all  events.     Their  undertaking  is,  in 
j  effect,  to   pay   each  depositor  in   full,  with 
I  his  dividends,  provided  the  assets  are  suf- 
ficient;   and   if  not   sufficient,   then   to   pay 
each  one  his  proportionate  share.     Lewis  v. 
Lynn  Sav.  Inst.  148  Mass.  235,  19  N.  E.  365, 

1:785 

365.  Losses  sustained  by  a  savings  bank 
may  be  deducted  by  its  officers  from  the  'de- 

!  posits  pro  rata;  and  if  a  depositor  accepts. 

j  without    objection,   the   balance    found    due 

him  after  such  deduction,  as  a  settlement 


BANKS,  VI. 


831 


and  payment  of  his  deposit,  he  is,  in   the 
absence  of  fraud,  bound  thereby.  Id. 

366.  The  entry  by  a  savings  bank  of  a 
credit  in  a  pass  book  will  not  estop  it  from 
denying  that  a  deposit  was  made,  as  against 
an  assignee  of  the  account,  where  the  entry 
was  procured  by  fraud,  and  the  bank  made 
it  without  knowledge  of  the  material  facts 
or  any  intention  that  the  representation 
should  be  acted  on, — especially  where  the 
assignee  is  not  a  bona  fide  holder.  Mc- 
Caskill  V.  Connecticut  Sav.  Bank,  60  Conn. 
300,  22  Atl.  568,  13:  737 
Assignment  of  deposit. 

Conclusivene.iis  of  Trial  Court's  Finding  as 
to,  see  Appeal  and  Error,  779. 

Gift  of  Deposit,  see  Gift,  20-24,  38,  58- 
65. 

367.  A  savings-bank  pass  book  is  not  a 
negotiable  instrument,  either  by  itself  or 
in  connection  with  an  order  signed  by  the 
depositor  directing  payment  to  a  third 
person  or  bearer;  nor  can  it  be  made  so  by 
contract.  The  account  may  be  transferred, 
but  the  assignee  takes  it  subject  to  the 
equities  and  defenses  between  the  original 
parties,  in  the  absence  of  facts  creating  an 
estoppel.  McCaskill  v.  Connecticut  tsv. 
Bank,  60  Conn.  300,  22  Atl.  568,         13:  737 

368.  A  transfer  of  a  savings  bank  account 
to  a  new  account  in  the  names  of  the  for- 
mer depositor  and  his  wife,  making  it  sub- 
ject to  the  order  of  either  and  to  survivor- 
«hip  on  the  death  of  either,  partakes  some- 
what of  the  nature  of  an  equitable  assign- 
ment, and  entitles  the  wife  to  the  fund 
after  the  husband's  death.  Metropolitan 
Sav.  Bank  v.  Murphy,  82  Md.  314,  33  Atl. 
640,  31:454 
Payment  to  wrong  person. 

Judicial    Notice    as    to,    see  •  Evidence,    101. 
Question    for    Jury    as    to,    see    Trial,    490, 

491. 
For  Editorial  Notes,  see  infra,  VIII.  §  24. 

369.  A  rule  of  a  bank  that  payment  made 
to  a  person  presenting  a  pass  book  shall  be 
good  and  valid  on  account  of  the  owner, 
unless  the  pass  book  has  been  lost  and  no- 
tice in  writing  given  to  the  bank  before 
such  payment  is  made,  is  reasonable  and 
bindinf/  upon  depositors.  Langdale  v.  Citi- 
zens' Bank,   121  Ga.   105,  48  S.  E.  708, 

69:  341 

370.  Payment  of  a  savings-bank  deposit 
to  the  wrong  person  on  his  presenting  the 
deposit  book  claiming  to  be  the  depositor 
and  giving  correct  answers  as  to  the  mode 
of  deposit,  which  was  by  letter,  where  the 
depositor  is  unknown  at  the.  bank  and  has 
not  given  notice  of  the  loss  of  his  book, 
will  not  make  a  bank  liable  to  the  latter, 
where  the  by-laws  require  the  deposit  book 
to  be  produced  in  order  to  draw  the  money, 
and  that  immediate  notice  of  its  loss  must 
be  given,  and  expressly  deny  responsibility 
for  loss  by  payment  to  the  wrong  person 
if  such  notice  has  not  been  given.  GifTord 
V.  Rutland  Sav.  Bank,  63  Vt.  108,  21  Atl. 
340,  11:794 

371.  Under  a  rule  of  a  bank  that  payment 
to  a  person  presenting  a  pass  book  shall 
be   good  on   account   of  the   owner,   unless 


the  book  has  been  lost  and  notice  in  writ- 
ing given  to  the  bank,  where  a  pass  book  is 
presented  by  a  person  other  than  the  de- 
positor to  whom  it  belongs,  together  with 
a  forged  check  bearing  a  signature  similar 
to  that  of  the  depositor,  and  there  is  noth- 
ing to  arouse  the  suspicion  of  the  teller, 
or  put  him  upon  inquiry,  as  a  reasonably 
prudent  man,  as  to  the  genuineness  of  the 
check,  and  the  bank  in  good  faith  pays  the 
check,  believing  the  person  presenting  it  to 
be  the  depositor,  it  is  not  liable  in  a  suit 
by  the  depositor  to  recover  the  money  so 
paid,  notwithstanding  another  rule  of  the 
bank,  that  depositors  must  always  present 
their  pass  books  when  depositing  or  with- 
drawing money,  and  that,  "if  not  present 
personally,  an  order  properly  signed  and 
witnessed  must  accompany  the  presenta- 
tion of  the  book  in  case  of  withdrawal." 
Langdale  v.  Citizens'  Bank,  121  Ga.  105.  48 
S.  E.  708,  69:  341 

372.  A  by-law  of  a  savings  bank  which  is 
organized  under  the  general  banking  law, 
and  the  profits  of  which  belong  to  stock- 
holders, and  not  to  the  depositors,  must  be 
brought  to  the  attention  of  a  depositor  and 
his  assent  actually  or  impliedly  given  there- 
to before  it  can  operate  to  relieve  the  bank 
from  liability  to  repay  him  his  deposit  be- 
cause of  payment  to  another  person  who 
had  presented  the  book  without  authority 
and  forged  the  depositor's  name.  Acken- 
hausen  v.  People's  Sav.  Bank,  110  Mich.  175, 
68  N.  W.  118,  33:  408 

373.  Active  vigilance  to  detect  fraud  and 
forgery  is  due  by  savings-bank  officers  to  a 
depositor  on  paying  the  deposit  to  one  pre- 
senting the  pass  book,  although  the  by-laws 
provide  that  the  bank  will  not  be  responsi- 
ble for  fraud  in  presenting  the  bank  book 
and  drawing  the  money,  where  they  also 
require  its  presentation  by  the  owner,  or 
his  agent  duly  constituted  by  a  writing 
signed  and  acknowledged,  as  a  condition 
of  pavment.  Kummel  v.  Germania  Sav. 
Bank,' 127  N.  Y.  488,  28  N.  E.  398,     13:  788 

374.  A  regulation  printed  in  the  deposit 
books  of  a  savings  bank  relieving  the  bank 
from  liability  for  any  fraud  that  may  be 
practised  o^i  its  officers  in  withdrawing 
money  by  means  of  forged  certificates,  does 
not  relieve  the  bank  from  its  duty  to  exer- 
cise ordinary  care  to  prevent  payment  to 
the  wrong  person.  Chase  v.  Waterburv  Sav. 
Bank,  77  Conn.  295.  59  Atl.  37,  69:  329 

375.  Failure  of  the  officers  of  a  savings 
bank  to  make  a  physical  comparison  of 
the  signature  on  a  draft  presented  with  a 
depositor's  bank  book  with  his  signature 
on  file  will  render  it  liable  for  paying  out 
money  on  a  forged  draft,  in  the  absence 
of  some  unusual  and  pertinent  excuse  which 
will  justifv  such  failure.  Kelley  v.  Buf- 
falo Sav.  Bank,  180  N.  Y.  171,  72  N.  E. 
995.  69:  317 

376.  Negligence  of  a  depositor  in  a  sav- 
ings bank  in  failing  to  keep  his  deposit 
book  where  it  will  not  fall  into  the  hands 
of  persons  who  will  fraudulently  withdraw 
the  deposit  does  not  relieve  the  bank  from 
liability   in   case   it   is  guilty   of  negligence 


BANKS,  VII. 


in  paying  out  a  deposit  to  one  not  au- 
thorized to  receive  it.  Chase  v.  Waterbury 
Sav.  Bank,  77  Conn.  295,  59  Atl.  37, 

69:  329 

377.  A  depositor  in  a  savings  bank  is 
not  estopped  to  hold  the  bank  responsible  in 
case  it  negligently  pays  the  deposit  to  an 
unauthorized  person  by  the  fact  that  he 
also  is  negligent  in  the  care  which  he  takes 
of  his  bank  book.  Id. 

377a.  A  savings  bank  having  thousands 
of  depositors  does  not  exercise  reasonable 
care  to  protect  them  from  loss  by  payment 
of  accounts  to  strangers,  where  the  only 
proof  of  identity  it  requires  is  the  posses- 
sion of  the  bank  book.  Ladd  v.  Augusta 
Sav.   Bank,   96  Me.   510,   52  Atl.    1012, 

58:  288 
Paying  out  deposit  after  depositor's  death. 
To    Foreign    Executor,    see    Executors    and 

Administrators,  39. 
See  also  infra,  379. 

378.  Ordinary  care,  under  the  circum- 
stances of  each  particular  case,  is  the 
measure  of  tne  duty  of  a  savings  bank  in 
paying  money  out  of  a  depositor's  accoimt 
after  his  death,  upon  production  of  the  bank 
book  and  the  presentation  of  a  draft  pur- 
porting to  bear  his  signature,  when  the 
bank  has  no  actual  notice  of  the  depositor's 
death,  and  nothing  has  transpired  to  charge 
it  with  knowledge  of  that  fact.  '  Kelley  v. 
Buffalo  Sav.  Bank,  180  N.  Y.  171,  72  N.  E. 
995,  69:  317 
Trusts. 

Trust  in  Deposit  Generally,  see  Trusts,  15- 

22. 
For  Editorial  Notes,  see  infra,  VIII.  §  9. 

379.  Payment  by  a  savings  bank  of  a  de- 
posit on  account  of  one  person  in  trust  for 
another,  to  the  depositor's  administrator,  is 
good  and  effectual  to  discharge  the  savings 
bank,  in  the  absence  of  any  notice  from 
the  beneficiary,  where  the  by-laws  of  the 
bank  authorized  by  law  provided  for  pay- 
ment on  the  death  of  a  depositor  to  his 
legal  representatives.  Schluter  v.  Bowery 
Sav.  Bank,  117  N.  Y.  125,  r2  N.  E.  572, 

5:541 
Insolvency. 

380.  A  savings  institution  which  has  re- 
ceived and  appropriated  to  the  purposes  of 
its  business  a  special  deposit  under  circum- 
stances which  gave  the  stockholders  every 
opportunity  to  know  of  the  transaction 
must,  in  case  of  insolvencj',  return  it  be- 
fore the  stockholders  can  claim  any  of  its 
assets,  whether  it  had  power  to  receive 
the  deposit  or  not.  Heironimus  v.  Sweeney, 
83  Md.  146,  34  Atl.  823,  33:  99 

381.  A  special  deposit  of  money  at  in- 
terest with  a  savings  institution,  the  regu- 
lar depositors  in  which  arc  stockholders, 
must,  in  case  of  insolvency  of  the  institu- 
tion, be  repaid  before  the  regular  deposit- 
ors are  entitled  to  a  dividend  out  of  its 
assets.  Id. 
Liability  of  officers. 

For  Editorial  Notes,  see  infra,  VIII.  §  4. 

382.  Directors  of  savings  banks  are  per- 
sonally responsible  for  frauds  and  losses 
resulting  from  gross  negligence  and  inatten- 


tion to  the  duties  of  their  trust.  Marshall 
V.  Farmers  &  M.  Sav.  Bank,  85  Va.  676,  8- 
S.  E.  586,  2:  534 

383.  Where,  instead  of  meeting  every 
week,  as  required  by  their  by-laws,  thfr 
directors  of  a  savings  bank  met,  in  some 
years,  but  once  or  twice,  and  never  caused 
the  books  of  the  bank  to  be  examined,  or 
called  for  a  statement  of  their  accounts 
with  other  banks,  while  their  vaults  and 
cash  drawer  were  emptied  by  illegal  ab- 
stractions and  insolvent  loans;  and  while 
one  of  them  was  president  of  an  insolvent 
railroad  company,  and  knew  its  condition^ 
and  secured  himself,  its  notes  to  the  bank 
for  a  large  sum  were  allowed  to  become 
worthless, — although  there  was  nothing  to 
show  dishonesty  or  bad  faith,  they  were 
held  guilty  of  such  negligence  as  made  them 
liable  for  losses  to  depositors,  occasioned 
by  the  insolvency  of  the  bank.  Idi. 


VII.     Crimes. 

Conviction  for  Embezzlement  Under  Indict- 
ment for  Misapplying  Funds,  see  Em- 
bezzlement, 1. 

Indictment  for,  see  Indictment,  etc.,  113^ 
114. 

384.  An  agent  appointed  to  wind  up  the 
affairs  of  an  insolvent  bank  is  subject  to 
indictment  under  U,  S.  Rev.  Stat.  §  5209, 
U.  S.  Comp.  Stat.  1901,  p.  3497,  in  case  he 
wilfully  misapplies  its  funds,  although  such 
office  was  not  created  by  statute,  since  it 
has  long  been  recognized  as  permitted  by 
law,  and  the  word  "agent"  is  used  in  the- 
statute  as  descriptive  of  those  subject  to 
its  provisions.  Jewett  v.  United  States, 
41  C.  C.  A.  88,  100  Fed.  832,  53:  56» 

*  385.  That  an  agent  to  wind  tip  the  affairs 
of  an  insolvent  bank  was  appointed  by  votfr 
of  the  stockholders  does  not  make  him  their 
individual  agent,  rather  than  the  agent  of 
the  corporation  so  as  to  take  him  out  of 
the  provisions  of  U.  S.  Rev.  Stat.  §  5209, 
U.  S.  Comp.  Stat.  1901,  p.  3497,  which  pro- 
vides for  the  punishment  of  agents  of  bank» 
who  misapply  the  bank  funds.  Id. 

Taking  deposit  when  insolvent. 
Due   Process   of  Law   as   to,   see   Constitu- 
tional law,  681. 
Inference  o^  Fraud,  see  Constitutional  Law^ 

921,  922;  Jury,  68. 
Evidence  as  to,  see  Evidence,  1008. 
Validity  of  Provision  for  Imprisonment  for^ 

see  Imprisonment,  1. 
Indictment  of  Banker,  see  Indictment,  etc. 

21,  03. 
Sufficiency  of  Verdict,  see  Trial,  919. 
For  Mitorial  Notes,  see  infra,  VIII.  §  25. 
386.  A  banker  who  receives  money,  know- 
ing that  he  is  insolvent,  but  puts  it  into  a 
special  envelope  with  intent  to  return  it  to 
the  depositor,  which  is  afterwards  done^ 
without  making  the  money  at  any  time  part 
of  the  funds  of  the  bank,  is  not  guilty  of  re- 
ceiving money  from  a  depositor  with  knowl- 
edge that  the  bank  is  insolvent,  which  un- 
der Pa.  Laws  1889,  §   1,  is  declared  to  b» 


BANKS,  VIII. 


238 


embezzlement.      Com.    v.    Junkin,    170    Pa. 
194,  32  Atl.  G17,  31:  124 

387.  A  banker  who  fails  to  repudiate  the 
act  of  his  son  in  receiving  a  depoi<it  con- 
trary to  his  instructions,  an  hour  or  two 
before  the  bank  finally  closed  and  when  its 
insolvency  was  known,  and  who  fails  to  re- 
turn the  money,  but  within  four  days  after 
its  receipt  includes  it  in  a  general  assign- 
ment for  the  benefit  of  creditors,  is  guilty 
of  accepting  and  receiving  the  deposit 
knowing  himsglf  to  be  insolvent,  in  viola- 
tion of  the  Iowa  statute.  State  v.  Eifert, 
102  Iowa,  188,  65  N.  AV.  309,  71  N.  W.  248, 

38:  485 

388.  A  certificate  of  deposit  for  money 
received  bj'  an  insolvent  bank,  providing 
that  the  money  shall  not  be  subject  to 
check,  but  .shall  be  payable,  with  interest,  in 
one  year  on  return  of  the  certificate,  does 
not  make  the  transaction  a  loJiji  instead  of 
a  deposit,  or  take  it  out  of  the  operation 
of  Wis.  Rev.  Stat.  §  4541,  making  it  an  of- 
fense punishable  by  imprisonment  to  re- 
ceive money  on  deposit  in  a  bank  when  the 
one  receiving  it  knows,  or  has  good  reason 
to  know,  that  the  bank  is  unsafe  or  in- 
solvent. State  v.  Shove,  96  Wis.  1,  70  N. 
W.  312,  37:  142 

389.  The  mere  fact  that  a  portion  of  the 
deposit  received  by  an  insolvent  bank  was 
made  by  the  surrender  of  a  certificate  of 
deposit  held  against  the  same  bank,  and 
the  accrued  interest  thereon,  does  not  re- 
lieve i,he  bank  from  the  criminal  liability 
imposed  by  statute  for  receiving  a  deposit 
when  in.solvent.  Id. 

390.  The  loss  of  a  deposit  in  an  insolvent 
bank  is  sufficient) v  established  within  the 
meaning  of  Ind.  Rev.  Stat.  1894,  §  2031,  de- 
fining embezzlement  as  receiving  deposits 
in  such  banks,  by  pi'oving  the  insolvency 
of  the  bank  at  the  time  of  the  deposit,  and 
that  by  reason  thereof  it  has  not  been 
repaid.  State  v.  Beach,  147  Ind.  74,  46  N. 
E.  145,  36:  179 

391.  A  bank  receiving  a  deposit  while  in- 
solvent has  no  right  to  apply  it  upon  an  im- 
matured  note  of  the  depositor,  so  as  to 
avoid  criminal  liability  for  receiving  the 
mone}'  during  insolvency, — especially  when 
there  is  a  large  balance  due  to  the  depositor 
before  the  deposit  in  question  is  made.     Id. 

392.  A  depositor  of  money  in  an  insol- 
vent bank  is  not  indebted  to  it  within  the 
meaning  of  Ind.  Rev.  Stat.  1894,  §  2031,  so 
as  to  relieve  the  banker  from  criminal 
liabilitj',  merely  because  the  bank  holds  his 
unmatured  note  while  a  much  larger  sum 
is  due  him  from  the  bank.  Id. 

393.  Money  received  by  a  banker  when 
insolvent  is  lost  to  the  depositor  within 
the  meaning  of  a  statute  making  the  bank- 
er guilty  of  embezzlement  if  when  insol- 
vent he  receives  a  deposit  which  is  lost  to 
the  depo.sitor  when  the  banker  closes  his 
doors,  leaving  some  portion  of  the  amount 
so  deposited  unpaid.  Meadowcroft  v.  Peo- 
ple, 163  111.  56,  45  X.  E.  303,  35:  176 

394.  Demand  for  return  of  a  bank  deposit 
is  waived  by  the  banker  when  he  suspends 
payment,  discontinues  business,  and  closes 


his  doors  against   creditors   and  depositors. 

Id. 
395.  Tender  of  the  amount  of  the  deposit 
at  the  trial  of  an  indictment  for  receiving 
a  bank  deposit  when  insolvent,  whereby  it 
is  lost  to  the  depositor,  will  not  defeat  the 
prosecution.  Id.. 


VIII.  Editorial  Notes. 

As  to  Matters  of  Stock  and  Stockholder* 
Generally,  see  Corpora- 
tions,   VIII.    §§    19-46. 

a.   In  general. 

§  I.  Generally. 

Constitutionality     of     statute     prohibiting 

private   banking.     15:  477. 
Nature   and  privileges   of  state   bank.     29: 

378. 
Nature  and  relation  to  state  of  incorporated 

bank  belonging  to  it.     29: 

378. 
Forfeiture  or  other  effect  of  taking  or  re- 
serving illegal  interest  by 

national  bank.     56:  673. 
Restrictions  on  transfer  of  stock  of  national 

bank.     27:  273. 
Right  to  issue  attachment  against  national 

bank.     6:  226.* 
§  2.  Taxation. 
As    to    Corporate    Taxation,   Generally^    see 

Taxes,   VI.    §§    11-15. 
Taxation    of    banking    corporations    in    the- 

United   States  as  affected 

by  the  contract   clause  ia 

the    Federal    Constitution. 

60:  60,  86. 
State  taxation  of  national  banks.    45:  737. 
Of  franchise.     57:  56. 
Taxation  of  bank  deposits.     57:  72. 
§   3.  Jurisdiction. 
Question    relating    to     national    banks    a* 

Federal    question.   62:  536.^ 
Jurisdiction  of  state  courts  over  actions  by 

or  against  national  banks.. 

48:  35. 

b.    Officers   and   agents. 

§  4.  Duties  and  liability  of. 
Care   reijuired   of   bank   directors.      15:  305.. 
As  to  the  corporation  and  stockholder.^ 

15:  305. 
As  to  third  parties.     15:  .308. 
Liability  of  savings  bank  directors.    2:  535.* 
§  5.  Authority. 

Power  of  agents  to  indorse  negotiable 
paper.     27:401. 

c.    Banking. 
I.    In   general;    deposits. 

§  6.  Generally. 

Banking  customs.     21:440. 

Relation  of  bank  to  depositors.  2:  491;* 
9:108;*    12:791;*    13:370.* 

Relation  between  bank  officials  and  depos- 
itors.    13:  371.* 


234 


BANKS,  VIII.  (Ed.  Notes.) 


Deposit  tickets  given  by  bank.     17:  580. 
Entries   in   bank   books   as    contracts.     24: 

737. 
Statement  of  account.     27:  820. 
Transfer  of  deposit  by  assignment  and  de- 
livery   of    pass    book.    13: 
737.*    , 
Right  of  set-off,  in  case  of  bankruptcy,  in 
respect   of  banking  trans- 
actions    and     commercial 
paper,    generally.      55:  48, 
53,  59,  64,  70. 
When  statute  of  limitations  begins  to  run 
against       depositor.        1 : 
319.* 
§  7.  Application. 
As   to   Bank's   Right    of   Set-ofT,   see   infra, 

Vlil.  §   13. 
Application   of  depositor's   money.    9:  560.* 
Application  by  bank  of  individual  partner's 
deposit  on  firm  debt.    23: 
111. 
§  8.  Special  deposit. 

When  a  deposit  is  special  so  that  the  title 

remains   in   the   depositor. 

16:  516. 

Care  required  of  bank  in  keeping.    32:769. 

Liability  of  national  banks  for  loss  of. 

32:  770. 
Measure  of  care  required  generally.  32: 

771. 
General   rulings.     32:  774. 
Delivery    to    wrong    person.      32:  775. 
Misappropriation   by    bank.      32:  775. 
Misappropriation  by  officer.     32:  776. 
Retention    of,    dishonest    officer.      32: 

776. 
Trover.     32:  776. 
Recovery   back   of.     4:  328.* 
§  9.  Trust  in,  or  gift  of,  deposit. 
See  also  infra,  VIII.  §  20. 
Deposit  as  direct  tY-ust.     8:  648.* 
Gift   of   deposit.      1:356;*    5:72;*    6:405;* 

11:  686.* 
Effect  of  delivery  of  bank  book  to  sustain 
gift  of  monev  in  bank.  3: 
2.30;*     11:686;*      18:171; 
19:  700. 
Effect  of  depositing  money  in  bank  in  trust 
for  third  person.     32:  373. 
What  sufficient  to  show  trust  general- 
ly.    32:  373. 
Effect  of  making  third  person  trustee. 

32:  374. 
Where   deposit   is   made   for  a   purpose 
other    than    to    pass    title. 
.32:  374. 
Effect  of  subsequent  acts  of  depositor. 

32:  375. 
Rights  and  hahilities  of  representative 
of  deceased  depositc-.   32: 
375. 
Liability   of   bank    or   other   depositary,   or 
of  drawee,  for  taking  de- 
posit   of    agent,    fiduciary, 
or  other  representative  to 
pav    his    own    debt.      52: 
790. 
Check  or  draft  drawn  bv  agent,  fiducia- 
ry, etc.     52:  791. 


Where  same  is  on  its  face  drawn 
in    fiduciary    or    represen- 
tative capacity.     52:  791. 
Where  same  does  not  show  agency 
or    representative    charac- 
ter.    52:  798. 
Depositary   applying   trust,   etc.,   funds 
to   its  own   claim   against 
agent,   etc.     52:  799. 
§10.  Paying  out  deposits. 
See  also  infra,  VIII.  §  24. 
Pass   book    as    evidence    of   fight    to    draw 

money.     13:  737.* 
Liability  to  depositors  for  payment  of  al- 
tered   or    raised    check    or 
forged    paper.      2:96:*    7: 
596,*    849;*    12:  793.* 
Duty  of  bank  in  paying  check.     6:  626;*  7: 

490.* 
Drawee's  duty  to  know  signature  of  drawer. 
27:  635.  * 

Duty  of  bank.     27 :  635. 
In  general.     27:  635. 
Negligence   or   fault   of   party    ob- 
taining payment.     27:  637. 
Duty  of  other  parties.     27:  639. 
Duty    of    depositor    in    respect    to    forged 
checks  chargeu  to  him  by 
the     bank.      27:426;    36: 
539. 
As  to  forged  indorsements.     27:  428. 
As    to    raised    or   altered    checks.      27: 

429. 
Examination   intrusted   to   agent.     27: 
429. 
As  to  Liability  of  Person  Whose  Signature 
is   Forged   on   Commercial 
Paper,  Generally,  see  Bills 
and  Notes,  VII.  §  5. 
Check   or   bill    issued,    or   indorsed,   to    im- 
postor— who     must     bear 
loss.     50:  75. 
Theory  of  actual  intent.     50:  75. 
Impostor  assuming  to  act  as  agent  of 

payee.     50:  80. 
Check  or  bill  sent  by  mail.    50:  81. 
Applicability    of    rule    as    to    fictitious 

payees.     50:  82. 
Theory  of  estoppel.     50:  83. 
§11.  Checks.  , 

See  also  supra,  VIII.  §   10. 
As  to  Matters  Not  Involving  Duty  or  Lia- 
bility of  Bank,  see  Checks, 
VL 
Banking  customs  as  to.     21 :  443. 
What   constitutes  bank   check.     7:  489.* 
Effect  of  certification  of.     12:  492.* 
On   liability  of  drawer.      16:  510. 
Of  parol  certification.     7:  428.* 
Indorsement  of,  "For  deposit."     23:  164. 
Right  to  .stop  payment  of.     30:  845. 
Liabilitv  of  bank   for  refusal  to  pay.     15: 

134. 
§   I?..  Certificates  of  deposit. 
Defense    against,    when    transferred    after 

maturity.     46:  809. 
Maturity  of.     15:  387. 
§  13.  Bank's  lien  or  right  of  set-off  against 

depositor. 
Lien    on   deposits.     6:  227.* 


BANKS,  VIII.  (Ed.  Notes.) 


235 


Bank's  right  of  set-off  when  depositor  be- 
comes bankrupt.  55:48, 
53,  63,  70. 
Ri^t  of  bank  to  set  off  unmatured  claim 
against  deposit  account 
of  its  insolvent  debtor. 
15:  710. 
In   case   depositor   dies   insolvent.      15: 

711. 
Effect  of  presentation  of  check  against 
,  the  fund.     15:  711. 

2.  Collections. 

§  14.  Generally. 

Banking  customs  as  to.    21:  442. 

For    whom    is    collecting    bank    agent.      2: 

699;*    4:422;*     8:42.* 
§  15.  Title  to,  and  disposition  of,  collection 

of  funds. 
\Vhen    collecting    bank    becomes    insolvent. 

7:859.* 
Trust  in  proceeds  of  collection  by  insolvent 

bank.     32:  715. 
WTien  paper  indorsed  in  blank.     7:  852.* 
When   paper   indorsed   "for   collection."     7: 

852;*  8:  42.^' 
Banking  custom  as  to  treatment  of  check 

deposited  "for  collection." 

21:  443. 
What  gives  collecting  bank  right  to  apply 

proceeds.    7:  854.* 
Effect  of  custom  or  course  of  dealing.     7: 

855.* 
Right  to  set  off  collection  against   amount 

due  to  bank.     2:  700.* 
§  16.  Duty  and  liability  of  collecting  bank. 
Generally.     7:  857.* 
Liability   of  collecting  bank   for  neglect  of 

agent.     8:  44.* 
Sending  directly  to  drawee  bank.  27:  248. 
Effect  of  banking  custom   as  to.     21: 

443. 
What  agent  may  accept  in  payment  of  col- 
lections.    2:  491.* 

3.  Other  transactions;  discounts. 

§   17,  Generally. 

Transmission  of  money  for  benefit  of  third 
party.     4:  328.* 

Purchase  of  notes  and  bills  by  bank  as  dis- 
tinguished  from  discount- 
ing.    16:  223. 
What  is  discounting.     16:  223. 
Whether    discounting    includes    buying 

and  selling.     16:  223. 
Application  of   usury   laws.     16:  224. 

Clearing-house  business.     25 :  824. 

Liability    of    bank    as    accommodation    in- 
dorser.     23:  836. 

Nature  of  drafts  by  one  bank  on  another. 
23:  173. 

Effect    of    national    bank    reserving    illegal 
interest.     56:  673. 

4.   Clearing-house   business. 

§   17J/2.  Generally. 
Clearing-house  business.     25:  824. 

Origin  and  description.     25:  824. 

Rights     and     liabilities     of     clearing- 
houses.    25:  825. 


Clearing-house    loan    certificates.      25: 
826. 

Clearing-house  duebill.     25:  826. 

Presentation      and     payment     through 
clearing-house.     25:  826. 
•   Return  of  paper  not  good  after  receiv- 
ing    it    through   clearing- 
house.    25:  827. 

Effect  of  clearing-house  rules  and  cus- 
toms.    25:  830. 

Agency     of     clearing-house      members. 
25:  830. 

Gold  clearing-house.    25:  830. 

Country      clearing-house      of     London. 
25:  831. 

Miscellaneous.     25:  831. 
Collection     made     through     clearing-house. 
2:  700.* 

d.   Insolvency  of  .bank. 

§18.  Generally. 
See  also  infra,  VIII,  §  25. 
Liability  of  executor  or  trustee  for  loss  of 
funds   through    failure   of 
bank.     14:  103. 
Deposit   awaiting  investment.     14:  103. 
Continuing   deposit    made   by    testator. 

14:  104. 
Requisite     character    of    deposit.      14: 

105. 
Deposit  contrary  to  order  of  court.  14: 

105. 
Losing  control   of   funds.     14:  105. 
Loss  caused  by  war.     14:  106. 
Liability  on  official   bond  for  loss  by  bank 

failure.     22:  449. 
§  19.  Preferences;   set-off  against  bank. 
Payment   of   depositor   during   a   run   on   a 
bank  as  an  unlawful  pref- 
erence.    .36:  675. 
Exceptions  to  the  prohibition  of  preferences 
by       insolvent       national 
banks.     25:  546. 
Priority  by  reason  of  trust  character  of 

deposit.     25:  546. 
Transfers  by  insolvent  national  banks. 
25:  548. 
Right  of  debtor  of  insolvent  bank  to  set  off 
demand.     2:273.* 
When  debt  to  bank  not  mature  at  time 
of  bank's  insolvency.     17: 
456. 
§  20.  Trust  in  funds. 

Trust    in   deposit   in    insolvent   bank.     34: 
532. 
Receiving    deposit    when    insolvent,    a 

fraud.    34:  533. 
How  far  trust  exists.     34:  534. 
Right  to  follow  money.     34:  535. 
Right  to  follow  commercial  paper.     34: 
536. 
Trust    in    proceeds    of    collection    made    by 
bank  when  insolvent.    32: 
715. 
As  against   claims  of  bank's  represen- 
tative.    32:  715. 
Where    title   has    passed   to   bank. 

32:  715. 
Effect  of  insolvency  at  time  of  re- 
ceiving paper.     32:  715. 


236 


BANKS,   VIII.  (Ed.  Notes.)— BAR  ASSOCIATION. 


Where  title  has  not  passed,  and 
the  paper  or  its  proceeds 
are  in  hands  of  receiver. 
32:  716. 
Proceeds  capable  of  distinct  iden- 
tification. 32:  716. 
Where  bank  has  received  no  fund. 

32:  717. 
Where   proceeds   have   been   mixed 
bv    bank     with    its     own 
funds.     32:  719. 
Taking  trust  monev  out  of  general 
fund.     32:' 719. 
As  against  claims  of  subagent.    32:  720. 
When    title    in    collecting    agent. 

32:  720. 
In  case  of  restrictive  indorsement. 

32:  721. 
Effect  of  knowledge  by  subagent  of 
true     condition     of     title. 
32:  721. 
Rule  where  the  indorsement   is  in 
blank.     32:  721. 
Priority  in  assets  of  insolvent  national  bank 
by   reason   of   trust   char- 
acter of  deposit.     25:  546. 
§  21.  Right  of  set-off. 
Right   of   debtor   of   insolvent   bank   to   set 

■     off  demand.     2:  273.* 
By  or  against  insolvent  bank.     17:  456. 
Right    to    set    off    against    insolv.ent    bank 
claims  purchased  after  in- 
solvency.     21 :  282. 
Depositor's  right  of  set-off  when  bank  be- 
comes    bankrupt.     55:  48. 
52,  62,   70. 
§  22.  Liability  of  stockholders. 
Liability    of    Stockholders    of    Corporation, 
Generallv,      see     Corpora- 
tions, Vill.   §§  35-43. 
Contingency   of  liability  of  stockholders  in 
national  bank  as  affecting 
time       for       presentation 
against    estate.      58:  85. 

e.  Savings  bank. 

§  23.  Generally. 

Savings  banks  distinguished   from  banks  of 

deposit.       1 :  785.' 
Joint   account   in.     31:454. 
Effect  of  delivery  of  savings  bank  book  as 
'  gift    of    deposit.      18:  171. 
As  to  Gifts  of  Deposit.  (Jenerallv,  see  supra, 

VIII.   §   it. 
§  24.  Liability  of,  for  payments  to  fraudu- 
lent claimants. 
General    rule    re()uiring    reasonable    care    by 

the   bank.     (iO:  317. 
The   application    of   tlie   rule   of   reasonable 
care    as    affected    by    the 
bank's     by-laws.      69:  318. 
In  general.     69:  318. 
By-law   providing   for   payment   to   the 
depositor's    representative 
after   his    death.      69:  323. 
The  binding  effect  of  the  by-laws  upon  the 
depositor.'    69:  .324. 
Assent    by    the    depositor.      69:  .324. 
What  is  a  reasonable  by-law.     69:  326. 
Limits   of   the   application   of   the   rule   re- 
quiring    reasonable     care. 
69:  327. 


In   general:      69:  327. 

Payment  upon  iraudulent  claim  of 
identity    merely.     69:  327. 

Payment  upon  impersonation  of  the 
depositor,  combined  with 
forgery.      69:  329. 

Payment  upon  forged  orders  alone. 
69:  333. 

Payment  without  either  impersonation' 
or  forgery.     69:  336. 

Payment  after  the  death  of  tht  depos- 
itor.    69:  338. 

The   obligation   to   compare   the   signa- 
tures.     69:  339. 
Contributory    negligence    of    the    depositor^ 
69:  340. 

In   general.     69:  340. 

Failure  to  give  notice  to  the  bank.  69  r 
341. 

Failure  to  keep  pass  book  safely.    69: 
342. 
Matters  of   evidence.     69:  342. 

f.  Crimes. 

§  25.  Generally. 

Criminal  liability  for  receiving  deposit  ia 
bank  knowing  of  its  in- 
solvency.    31:  124. 

Constitutionality  of  statutes.     31:  124. 

Effect  of  adopting  existing  nomencla- 
ture in  defining  the  of- 
fense.    31:  124. 

Liability  in  the  absence  of  statute.  31  r 
125. 

Who  liable.     31  i  125. 

Liability   of  partnership.     31:  125. 

Sufficiency   of   proof.      31:  125. 

Other  rulings.     31:  125. 


BAPTISMAL    RECORD. 

Libelous  Entry  in,  see  Libel  and  Slander^ 
33,    106. 


BAPTISTS. 

Power    of    Majority    of    Church,    see    Reli- 
gious Societies,  35,  36,  80. 


BAR. 


How  Dower  Alay  be  Barred,  see  Dower,  L 

c. 
Of  Judgment,  see  Judgment,  II. 
Of   Limitation,   see   Limitation   of  Actionsw 


BAR  ASSOCIATION. 


Disqualification    of    Judge    by    Membership 
in,   see   Judges,   41, 


BARBED  WIRE— BASTARDY. 


287 


BARBED  WIRE. 
ISee  Fences,  11,  12. 


BARBER. 

Equal  Protection  and  Privileges  as  to 
Working  on  Sunday,  see  Constitution- 
al  Law,   534-537. 

Due  Process  in  Prohibiting  Work  on  Sun- 
day,  see   Constitutional   Law,   683. 

Prohibiting  against  working  on  Sunday, 
see  Constitutional  Law,   1018-1021. 

Police  Regulation  of  Business  of,  see  Con- 
stitutional  Law,   1034. 

Contract  to  Restrain  Business  of,  see  Con- 
tracts, 589. 

Agreement  Not  to  Engage  in  Business  of, 
see  Contracts,  734.  *, 

Judicial  Notice  of  Danger  of  Spread  of 
Contagious  Disease  by,  see  Evidence, 
115. 

Exemption  of  Property  of,  see  Exemptions, 
38. 

Work  af.  Generally,  on  Sunday,  see  Sun- 
day, 17-19. 

<5uestion  for  Jury  as  to  Necessity  of  Keep- 
ing Shop  Open  on  Sunday,  see  Trial, 
156. 


BARBER'S    POLE. 

Liability  for  Injury  by,  see  Highways,  288. 


BARK. 

Editorial  Notes) 
Oral  contract  for  sale  of.     19:  721. 


BARKING. 

Right   to   Kill   Barking  Dog,   see   Animals, 
24,  25. 


♦  •» 


BARN. 

As  a  Fixture,  see  Fixtures,   15. 

♦-•-♦ 

BARRIERS. 

At  Dangerous  Place  in  Highway,  see  High- 
ways, 266-268,  271,  324. 


BASE   BALL. 

See  Ball  Playing. 


BASEMENT. 


Use    of    Elevator    as    Appurtenant    to,    see 
Easements,  59. 


BASTARDY. 


BAR    WAY. 

Easement  of,  see  Easements,  95,  106,  110. 


Right    to    Appeal    from    Acquittal    in,    see 

Appeal  and  Error,  51. 
Release    from    Judgment    in,    by    Discharge 

in  Bankruptcy,  see  Bankruptcy,  59. 
Consideration    for    Contract    against    Pro- 
ceedings,  see   Contracts.  75. 
Effect  of  Illegitimacy  on  Right  to  Inherit, 

see  Descent  and  Distribution,  I.  c;  IV. 

§  4. 
Admissibility     of     Pictures     of     Putative 

Father   and   Child,   see   Evidence,    1053. 
Exhibition  of  Child  to  Jury,  see  Evidence, 

1044. 
Right    of   Putative    Father   to    Custody    of 

Child,  see  Infants,  45. 
Service    bv    Publication    in,    see    Judgment, 

27. 
Form  of  Judgment  on  Bond  in  Proceedings 

in,  see  .Judgment,  44. 
Merger   in   Judgment   of  Rights   under   Or- 
der of  Affiliation,  see  Judgment,  97. 
Libelous  Charge  of,  see  Libel  and  Slander, 

32,  33. 
Legitiination    of    Bastard,    see    Conflict    of 

Laws,    149-154;    Parent    and   Child,   II. 
See  also  Illegitimacy. 

1.  At  common  law  a  bastard  child  was 
one  who  was  not  born  in  lawful  wedlock 
nor  within  a  competent  time  after  its  termi- 
nation, or  one  who  was  horn  under  cir- 
cumstances rendering  it  impossible  that 
the  husband  of  its  mother  could  be  its 
father.  Parker  v.  Xothomb,  65  Neb.  315, 
93  N.  W.  851,  60:  699 

2.  The  marriage  after  the  birth  of  a 
child,  of  a  woman  who  was  unmarried  at 
the  time  such  child  was  begotten  and  born, 
does  not  prevent  her  from  maintaining  an 
action  in  bastardy,  under  the  Nebraska 
statute  of  1875  entitled  "An  Act  for  the 
Maintenance  and  Support  of  Illegitimate 
Children,"  amending  the  act  of  1869  en- 
titled "An  Act  to  Provide  for  the  Support 
of  Illegitimate  Children,"  authorizing  such 
an  action  on  complaint  made  to  any  jus- 
tice of  the  peace  "by  any  unmarried  wom- 
an" resident  therein  who  shall  hereafter 
be  delivered  of  a  bastard  child,  or  is  preg- 
nant with  a  child  which,  if  born  alive,  may 
be  a  bastard.  Id. , 

3.  After  judgment  has  been  rendered  in 
a  bastardy  proceeding,  and  at  the  same 
term  of  court,  it  is  competent  for  the  court 
to  set  aside  the  judgment  on  its  own  mo- 
tion, having  ascertained,  that  the  com- 
plainant   was    mentally    incapacitated,    and 


238 


BATH  HOUSE— BATHING  RESORT. 


that  the  court  was  without  jurisdiction. 
State  ex  rel.  Yilek  v.  Jehlik,  66  Kan.  301, 
71   Pac.  572,  61:  265 

4.  An  unmarried  woman,  who  is  an  im- 
becile, and  incompetent  to  testify,  cannot 
institute  and  prosecute  a  proceeding  in 
bastardy,  under  a  statute  giving  the  right 
to  institute  such  a  proceeding  to  "any  un- 
married woman."  Id. 

5.  If  the  putative  father  of  a  bastard 
child  is  a  resident  of  the  state,  the  mother 
can  institute  proceedings  against  him  un- 
der the  Kansas  statute,  even  if  the  mother 
and  child  are  residents  of  another  state. 
Moore  v.  State  ex  rel.  Vernon,  47  Kan.  772, 
28  Pac.  1072,  17:  714 

6.  The  penalty  incurred  by  a  person  con- 
victed in  a  bastardy  proceeding,  under  S. 
C.  Gen.  Stat.  ?§  1579  et  seq.,  on  failure 
to  enter  into  a  recognizance  for  the  sup- 
port of  the  basta-d  child,  is  not  a  "debt," 
within  the  meaninj^  of  a  constitutional  pro- 
vision against  imprisonment  for  debt. 
State  V.  Brewer,  38  S.  C.  263,  16  S.  E.  1001, 

19:  362 

7.  A  judgment  on  conviction  of  bastardy 
does  not  authorize  perpetual  punishment 
because  it  directs  execution  for  $25  annu- 
ally as  for  a  penalty  on  default  of  the  re- 
quired recognizance,  and  confinement  upon 
execution  in  jail  until  payment  is  made 
in  case  the  execution  be  returned  nulla 
bona  as  in  a  ca.  sa.,  since  the  accused  is  en- 
titled to  the  privileges  of  insolvent  debtors. 

Id. 

Editorial  Notes. 

Penalty  as  limit  of  liability  on  bond  in 
bastardy  proceedings.  55 : 
395. 

Form  of  judgment  on  bastardy  bond.  62: 
444. 

Imprisonment  under  order  in  bastardy  pro- 
ceeding, as  imprisonment 
for  debt.     34:  667. 

Cruel  and  unusual  punishment  for.  35: 
570. 

Existence  of  bastard  child  as  ground  of 
uivorce  or  annulment  of 
marriage.      18:  377. 


BATH  HOUSE. 


Check   for  Property   in,   see  Bailment,   36. 
Use  of  Water  from  Artesian  Well  for,  see 
Waters,  449,  450. 


BATHING. 

Pollution    of   Water   by,   see   Waters,   291, 

292. 
Rights    of    Riparian    Owner     as     to,     see 

Waters,    291,    292. 


BATHING  RESORT. 

Liability  for  Injury  in  Use  of  Toboggan 
Slide  at,  see  Landlord  and  Tenant, 
181. 

1.  A  company  maintaining  a  bathing  re- 
sort and  letting  out  its  privileges  to  the 
public  for  hire  is  bound  to  take  such  pre- 
cautions for  the  safety  of  bathers  as  a 
person  of  ordinary  prudence  would  take 
imder  the  circumstances.  Brotherton  v. 
Manhattan  Beach  Improv.  Co.  48  Neb.  563. 
67   N.   W.   479,  33:  598 

2.  Ordinary  care  requires  the  keeper  of 
a  public  bathing  resort  frequented  by  a 
great  number  of  people  and  at  which  there 
is  detff  water,  to  keep  some  one  on  duty 
to  supervise  bathers  and  rescue  any  appar- 
ently in  danger,  or  at  least  to  exert  every 
effort,  without  a  moment's  delay,  to 
search  for  a  person  who  is  reported  miss- 
ing and   who   was  last   seen  in   the  water. 

^  Id. 

3.  One  maintaining  a  bathing  resort  on 
the  shore  of  a  natural  body  of  water,  to 
which  he  invites  the  public,  must  use  rea- 
sonable care  to  keep  the  bottom  under  the 
section  of  water  which  the  bathers  use 
free  from  everything  which  might  injure 
their  feet,  failure  to  do  which,  resulting 
in  injury,  is  actionable  negligence.  Boyce 
V.  Union  P.  R.  Co.  8  Utah,  353,  31  Pac 
450,  18:  509 

4.  A  municipality  upon  which  a  statu- 
tory duty  has  been  imposed  of  establish- 
ing and  maintaining  a  bathing  beach  is 
not  responsible  for  its  safety  and  the  safe 
use  of  it  by  those  likely  to  have  recourse 
to  it,  in  the  same  manner  as  streets  and 
highways,  or  even-  as  parks  and  grounds 
kept  for  entertainment  and  amusement 
without  profit,  are  to  be  rendered  safe. 
McGraw  v.  District  of  Columbia,  3  App. 
D.   C.   405,  25:  691 

5.  If  a  municipality  required  by  statute 
to  establish  and  maintain  a  free  bathing 
beach  is  liable  for  its  unsafe  condition 
after  the^  beach  is  opened,  the  detail  of  a 
policeman  to  preserve  the  peace  and  good 
order  at  such  beach  before  the  work  of 
construction  is  completed,  where  boys  and 
young  men  are  in  the  habit  of  congregat- 
ing and  have  congregated  for  many  years, 
is  not  an  opening  of  the  beach  to  the  pub- 
lic and  an  invitation  to  the  public  to  use 
it.  Id. 

6.  A  municipal  corporation  required  by 
statute  to  establish  and  maintain  a  free 
bathing  beach,  if  liable  for  the  condition 
of  such  beach,  cannot  be  held  responsible 
until  it  has  completed  the  work  of  con- 
struction and  thrown  the  beach  open  to 
the  public  for  the  uses  contemplated.       Id. 

7.  A  nuniicipality  required  by  statute 
to  establish  and  maintain  a  free  bathing 
beach  upon  the  margin  of  a  river  is  not 
bound  to  warn  the  public  against  change 
in  the  bed  of  the  stream,  or  to  mark  in 
any  way  the  depth  or  relative  depth  of  the 
water,  so  as  to  guard  the  ignorant  bather 
fiom   venturinj;  too  far.  Id. 


BATTERY. 

See    Assault    and    Battery. 


BATTERY— BELIEF.  K 

BEER  GARDEN. 
Injunction   against,   see   Nuisances,    128b. 


BATTURE. 

License  to  Use,  see  Municipal  Corpora- 
tions, 235. 

Ordinance  as  to  Use  of,  see  Public  Grounds, 
3. 

Editorial  Notes. 

In  bed  of  river.     5:  687.* 


BAWDY    HOUSE. 
See  Disorderl3»  Houses. 


BAY, 

Boundary  on,   see  Boundaries,  41. 

Editorial  Notes. 
Jurisdiction  over.     46:  275. 


BAY   WINDOWS. 


Covenant  as  to,  see  Covenant,  36. 
In  Highway,  see  Highways,  77. 


BEACH. 
Bond  to  Secure  Right  in,  see  Common,  2. 


BEER. 

Claim    of   Right   to   Inspect,    as    Cloud    on 

Title,  see  Cloud  on  Title,  11. 
Illegal  Combinations  as  to,  see  Conspiracy, 

143. 
Illegal    Sale    of,    to    Keeper    of    Unlawful 

House,  see  Contracts,  445. 
Judicial    Notice   as   to,   see   Evidence,    125- 

127. 
Burden  of  Proving  Intoxicating  Quality  of, 

see   Evidence,   212. 
Injunction  against  Requiring  Inspection  of, 

see  Injunction,  165. 
As    Intoxicating    Liquor,    see    Intoxicating 

Liquors,  94,   95. 
Allegation  as  to  Inspection  of,  see  Plead- 
ing, 191, 
As    to    Intoxicating   Liquor    Generally,    see 

Intoxicating  Liquor, 

Editorial    Notes, 
As  intoxicating  liquor,     20:  647. 


BEES. 

Negligence    in    Hitching    Horse    Near    Bee 

Hive,  see  Trial,  444, 
Question   for  Jury   as  to,   see   Trial,   444. 

Negligence  of  keeper  of. 

See  also   infra,  Editorial  Notes. 

1.  A  keeper  of  bees  must  exercise  or- 
dinary prudence  in  locating  their  hives 
so  as  to  avoid  unnecessary  danger  to  those 
who  are  likely  to  make  lawful  use  of  the 
premises  or  the  highwav  near  bv.  Parsons 
V.  Manser,  119  Iowa,  88,  93  N.  W.  86, 

62:  132 

2.  A  keeper  of  bees  may  be  found  guilty 
of  negligence  in  locating  their  hives  with- 
in a  few  feet  of  a  post  which  he  has  fixed 
for  fastening  horses  to,  where  he  knows 
that  they  are  prone  to  attack  perspiring 
horses.  Id. 

3.  The  rule  as  to  the  duty  which  a  prop- 
erty owner  owes  licensees  regarding  the 
safety  of  the  premises  is  not  applicable 
in  a  case  where  horses  were  left  tied  in  a 
highway  near  a  hive  of  bees,  which  at- 
tacked them  and  caused  them  to  crowd 
over  the  fence  into  such  proximity  to  the 
hives  as  to  be  stung  to  death.  Id. 
Rights  of  finder  of, 

4.  A  trespasser  who  finds  bees  on  the 
land  of  another  and  hives  them,  but  is  not 
the  owner  of  the  hive  \n  which  he  puts 
them  Or  the  land  on  which  he  leaves  thorn, 
has  no  interest  in  them  which  is  the  sub- 
ject of  larcenv.  State  v.  Repp,  104  Iowa, 
305,  73  N.  W."829.  40:  687 

5.  The  mere  finding  of  bees  in  a  tree  on 
the  land  of  another  person  gives  the  finder 
no  right  to  the  bees  or  to  the  tree.  Id. 

Editorial    Notes. 

Propertv   rights   in.      40:  687. 

Generally.     40:  687. 

Trespass  and  trover.     40:  G88, 

Larceny.     40:  689. 

Tithes.     40:  689. 
Liability    of    owners    of.    for   injuries    (Jone 

by  them.     62:  132. 
As  a  nuisance.     62:  133, 


BEET    SUGAR    BOUNTY. 
See  Bounties,  1-3. 


BELIEF. 

Burden  of  Proof  as  to,  see  Evidence,  339. 
Of    Person    Making    False    Representation, 

see  Fraud  and  Deceit,  IV. 
Question  for  Jury  as  to,  see  Trial,  223. 


240 


Bf]NCH  WARRANT— BENEVOLENT  SOCIETIES,   II. 


BENCH   WARRANT. 


Mandamus  to  Compel  Issuance  of,  see  Man- 
damus, 24. 


BENEFICIARY. 


In  Policy,  see  Insurance. 
In  Trusts,  see  Trusts. 
In  Will,  see  Wills,  III. 


BENEFITS. 


Deduction  for,  in  Condemnation  Proceed- 
ings, see  Damages,  III.  1,  6. 

Estoppel  by  Receiving,  see  Estoppel,  III.  k. 

From  Local  Improvement,  Judicial  Notice 
of,  see  Evidence,  153,  154. 


BENEVOLENT    SOCIETIES. 

I.  In  General. 
II.  Local  Lodges. 

III.  Constitution,   Rules,    and    By-Laws. 

IV.  Membership;    Expulsion. 
V.  Irregularities;    Dissalution. 

VI.  Editorial  Notes. 

Issue  as  to  Funds  of,  in  Contempt  Proceed- 
ings, see  Contempt,  11. 

Validity  of  Agreement  against  Selling  Ben- 
efit Certificates,  see  Contracts,  578. 

Distribution  of  Assets  of  Incorporated  As- 
sociations, see  Corporations,  485. 

Jurisdiction  Over,  see  Courts,  I.  d.;  VI.  § 
3. 

Usage  as  to  Mode  of  Deciding  Questions, 
see   Custom,    15. 

Measure  of  Damages  against,  see  Damages, 
!>-2.  93. 

Injunction  to  Compel  Admission  of  Dele- 
gate, see  Injunction.  40. 

Injunction  against  Excluding,  from  Right 
to   Note,   sec   Injunction.  234. 

Injunction  against  Removal  of  Oflicer  of, 
see  Injunction,  237.  238. 

Injunction  against  Illegal  Assessments,  see 
Injunction,   239-241. 

Insurance    by.    see    Insurance. 

Board  of  Control  of,  see  Insurance,  22. 

Pleading  in  Case  of,  see  Pleading,  2(67. 

Receiver  of.  see  Receivers.  30.  129-131,   139. 

For  Associations  Cenerally,  see  As.socia- 
tions. 

See   also   Railroad    Relief    Associations. 


T.  In   General. 

1.  Authority  to  hold  meetings  for  the 
exercise  of  strictly  corporate  functions 
outside  of  the  state  of  incorporation  arises 
by  implication  where  the  corporation  con- 
stitutes the  supreme  legislative  deoart- 
ment    of   a   benevol^-nt    order   to   be   estab- 


lished by  it,  with  power  to  organize  subor- 
dinate bodies  throughout  the  United  States 
and  Canada.  Sovereign  Camp,  W.  O.  W.  v. 
Fralev,  94  Tex.  200,  59  S.  W.  879, 

51 :  898 

2.  A  benevolent  and  social  organization 
having  also  in  view  the  protection,  bene- 
fit, and  welfare  of  its  members  in  their 
various  employments  is  in  no  sense  a  part- 
nership. Brown  v.  Stoerkel,  74  Mich.  269, 
41  N.  W.  921,  3:  430 
Ifame. 

3.  The  Supreme  Lodge,  Knights  of  Py- 
thias, which  becomes  incorporated  after 
the  words  "Knights  of  Pythias"  have  been 
used  by  the  order  as  an  existing  vohmtary 
society,  cannot  claim  any  greater  right  to 
that  name  than  the  order  of  which  it  is 
the  head.  Supreme  Lodge.  K.  of  P.  v.  Im- 
proved Order,  K.  of  P.,  113  Mich.  133,  71 
N.    W.   470,  38:  658 

4.  The  name  "Improved  ^rder,  Knights 
of  Pythias,"  can  be  lawfully  taken  as  the 
name  of  a  new  order  formed  by  members 
who  withdraw  from  the  Knights  of  Pythias 
chiefly  because  the  old  order  refuses  to  per- 
mit them  to  have  the  ritual  printed  in  the 
German  language.  Id. 
Disbursement  of  money  donated  for  mem- 
bers. 

5.  Money  donated  by  members  of  a  mu- 
tual benefit  society  for  aisbursement  by  a 
committee,  in  response  to  a  call  by  the 
chief  oflRcer  for  aid  to  members  and  friends 
of  a  subordinate  lodge  who  are  injured  in 
a  cyclone,  must  all  be  distributed  to  the 
intended  donees,  in  the  absence  of  any  mis- 
take or  fraud  in  the  donation;  and  the 
committee  has  no  discretion  to  withhold 
any  part  of  it  from  them  on  the  ground 
that  they  did  not  need  it,  and  to  turn  it 
over,  instead,  to  the  general  treasurer -of 
the  order.  Supreme  Lodge  Knights  &  L. 
of  H.  V.  Owens,  94  Ky.  327,  22  S.  W.  327, 

20:  347 


II.  Local  Lodges. 

Eff"ect  of  Failure  to  Remit  Assessments  to 
Grand  Ijodge,  see  Insurance,  626. 

Effect  on  Beneficiary  of  Officer's  Failure 
to  Act,  see  Insurance,  595. 

6.  The  financial  secretary  of  a  subor- 
dinate lodge  of  a  benefit  society,  who  is 
designated  by  the  supreme  lodge  to  re- 
ceive and  forward  assessments  from  certifi- 
cate holders,  is  for  that  purpose  the  agent 
of  the  supreme  lodge,  so  that  the  stand- 
ing of  certificate  holders  will  not  be  af- 
fected by  his  failure  to  foiward  assess- 
ments paid  him.  Bragaw  v.  Supreme 
Ix)dge  K.  &  L.  of  H.  128  N.  C.  354.  38  S. 
E.   905,  54 :  602 

7.  A  per.son  to  whom  all  the  members  of 
a  local  assembly  of  the  Knights  of  I^abor 
in  good  standing  have  executed  an  assign- 
ment of  their  right,  title,  and  interest  can 
maintain  an  actitm  to  recover  money  paid 
in  by  members  of  the  assembly  on  the  for- 
mation  of   a   preliminary   organization  pre- 


BENEVOLENT  SOCIETIES,  III. 


241 


paratory  to  forminp:  such  local  assembly, 
■with  the  intention  that  the  money  so  con- 
tributed should  be  used  as  initiation  fees 
in  tlie  assembly  to  be  formed  as  a  successor 
to  the  first  association,  when  the  defend- 
ants, who  were  the  treasurer  and  one  of 
the  trustees  of  the  first  association,  refuse 
to  give  it  up.  Brown  v.  Stoerkel,  74  Mich. 
269,  41  N.  W.  921,  3:  430 

8.  A  statute  authorizing  the  Grand 
Lodge  Independent  Order  of  Odd  Fellows 
to  establish  subordinate  lodges,  and  pro- 
viding that  such  lodges  may  hold  title  to 
property,  docs  not  delegate  power  to 
■create  corporations;  and  such  subordinate 
lodges  do  not  become  corporations.  Heis- 
kell  V.  Chicka.saw  Lodge  No.  8,  87  Tenn. 
<)68,  11  S.  W.  825,  4:  099 
Rights  and  powers  of  local  lodge. 

9.  Local  lodges  of  a  mutuaK  benefit  so- 
■ciety  are  the  agents  of  the  supreme  camp, 
for  whose  acts  within  the  scope  of  their 
siuthoritj'  the  latter  is  responsible,  where 
the  supreme  camp,  which  is  organized  and 
incorporated  for  the  purpose  of  furnish- 
ing aid  to  meml)ers  and  their  families,  se- 
lects and  organizes  local  lodges  to  trans- 
•act  it.s  business,  which  are  under  its  com- 
plete direction  and  control,  and  the  mem- 
bers of  which  are  to  all  intents  and  pur- 
poses members  of  the  supreme  camp. 
Mitchell  V.  Leech,  69  S.  C.  413,  4^  S.  E.  290, 

66:  723 

10.  The  supreme  lodge  of  a  mutual  ben- 
efit society  which  has  authorized  its  agent, 
«  local  lodge,  to  initiate  members  into  the 
order,  is  liable  for  injuries  inllicted  upon 
a  candidate  by  the  use  of  a  mechanical 
goat  in  the  initiation  ceremony,  although 
it  has  not  authorized  the  use  of  such  con- 
trivance. Id. 

11.  Although  it  is  the  duty  of  the  court 
to  determine  the  authority  of  local  lodges 
of  a  mutual  benefit  society  when  the  writ- 
ten instruments  determining  .such  author- 
ity are  before  it,  the  lodge  cannot  com- 
plain of  the  submission  of  the  question  to 
the  jury,  which  made  the  true  construction, 
and  which  was  given  an  opportunity  to 
find  against  such  construction  and  in  fa- 
Tor  of  the  contention  of  the  lodge.  Id. 

12.  Where  the  Grand  Lodge  Independent 
Order  of  Odd  Fellows  is  authorized  by  stat- 
ute to  establish  subordinate  lodges,  such 
a  subordinate  lodge  organized  under  a  char- 
ter from  the  grand  lodge,  having  a  contin- 
uous personality  and  officers  representing 
it,  and  being  clothed  by  the  legislature  with 
power  to  hold  pi'operty,  is  such  a  legal 
y>erson  as  is  capable  of  holding  and  admin- 
istering a  trust  germane  to  the  purposes 
of  the  order.  Heiskell  v.  Chickasaw 
I^dge  No.  8,  87  Tenn.  668,  11  S.  W.  825, 

4:  699 

13.  A  subordinate  lodge  duly  incorpo- 
rated under  state  laws  cannot  be  deprived 
of  the  possession  and  control  of  property 
belonging  to  it,  by  the  grand  lodge  of  the 
order  with  which  it  is  connected,  although 
under  the  constitution  of  the  order  it  has  | 
been  suspended  bv  the  grand  lodge.  Mer- 

L.R.A.  Dig.— 16. 


rill    Lodge    No.    299,    L    O.    0.    T.    v.    Ells- 
worth, 78  Cal.   166,  20  Pac,  399,  2:  841 

14.  The  legal  title  to  the  20  per  cent  of 
assessment  received  by  local  branches  of 
the  Order  of  Iron  Hall,  which  they  are  al- 
lowed to  retain  as  a  reserve  fund,  which 
by  the  law  of  the  order  is  declared  to  be 
the  property  of  the  supreme  sitting  and 
subject  to  its  control  at  all  times,  and 
which  is  to  be  called  for  in  ajinual  instal- 
ments after  the  period  of  six  years  and 
six  months, — is,  like  the  other  80  per  cent, 
which  is  paid  over  immediately,  in  the  su- 
preme sitting,  although  the  possession  is 
for  the  time  retained  by  the  branches. 
Buswell  V.  Supreme  Sitting  O.  of  I.  H.  161 
Mass.  224,  36  N.  E.  1065,  23:  840 

Baldwin  v.  Ilosmer,  101  Mich.  119,  59  N. 
W.   432,  25:  739 

15.  Local  branches  of  a  secret  benefit  or- 
der cannot,  when  called  upon  to  pay  over 
assessments  which  they  have  collected  un- 
der the  laws  of  the  order,  and  which  by 
such  laws  belong  to  the  supreme  sitting, 
question  the  validity  of  the  incorporation 
of  the  supreme  sitting.  Baldwin  v.  Hos- 
mer,  101  Mich.  119,  59  X.  W.  432,       25:  739 


III.  Constitution,   Rules,   and   By-laws. 

As  to  Matters  Relating  to  Insurance,  see 
Insurance,  189-199,  321,  622-626,  629, 
677,  821,  926,  927,  978,  1181,  1228,  1229, 
1232,  1306. 

See  also   infra,   39-43. 

For  Editorial  Notes,  see  infra,  VI.  §  3. 

16.  A  constitution  of  a  volimtary  associa- 
tion or  a  corporation,  which  is  created  by 
itself,  is  nothing  more  than  a  by-law  un- 
der an  inappropriate  name.  Supreme  Ijodge 
K.  of  P.  v.  Knight,  117  Ind.  489,  20  N.  E. 
479,   483,  3:  409 

17.  By-laws  may  be  unreasonable  and 
invalid  as  to  persons  who  are  members  of 
a  beneficial  association  when  they  are 
adopted,  although  reasonable  and  valid  as 
to  those  who  subsequently  become  mem- 
bers. Thibert  v.  Supreme  Lodge  K.  of  H. 
78  Mfnn.  448,  81  N.  W.  220,  47:  136 

18.  The  constitution  and  by-laws  of  a 
mutual  insurance  association  are  binding 
upon  the  members,  whether  they  have  ac- 
tual knowledge  thereof  or  not.  Clark  v. 
ihitual  Reserve  Fund  L.  Asso.  14  App.  D. 
C.    154,  43:  390 

19.  The  articles  of  agreement  of  a  benev- 
olent association,  whether  called  a  consti- 
tution, charter,  by-laws,  or  any  other  name, 
constitute  a  contract  between  the  members, 
which  the  courts  will  enforce  if  not  im- 
moral or  contrary  to  public  policy  or  the 
law  of  the  land.  Brown  v.  Stoerkel,  74 
Mich.   269,   41   N.   W.   921,  3:  430 

20.  Individuals  who  associate  themselves 
in  a  voluntary  fraternal  organization  may 
prescribe  conditions  upon  which  member- 
ship in  the  association  may  be  acquired  or 
upon  which  it  may  continue,  and  may  also 
prescribe  rules  of  conduct  for  themselves 
during  their  membership,  with  penalties 
for   their  violation,   and   the    tribunal   and 


212 


BENEVOLENT  SOCIETIES.  IH. 


mode  in  which  the  offenses  shall  be  deter- 
mined and  the  penalty  enforced.  Lawson 
V.  Hewell,  118  Cal.  613.  .jO  Pac.  763, 

49:  400 

21.  A  by-law  prohibiting  members  from 
licinj,'  connected  with  societies  not  approved 
by  a  particular  church  is  authorized  by  a 
provision  in  the  statute  authorizing  the 
incorporation  of  mutual  benefit  societies 
that  they  shall  have  power  to  establish 
rules  for  the  regulation  of  the  affairs  of 
the  corporation  not  contrary  to  the  laws 
of  the  state  or  United  States,  and  to  de- 
cide the  necessary  qualifications  of  mem- 
bership. Atazurkiewicz  v.  St.  Adelbertus 
Soc.  127  Mich.  145,  86  N.  W.  543,        54:  727 

22.  The  supreme  lodge  of  a  benefit  so- 
ciety cannot  delegate  to  a  board  of  con- 
trol its  power  to  enact  general  laws  affect- 
ing the  whole  endowment  rank  of  the  order, 
without  express  authority  in  the  charter. 
Supreme  Lodge  K.  of  P.  v.  La  Malta,  95 
Tenn.    157,    31    S.   W.   493,  30:  838 

23.  Power  given  by  the  supreme  lodge 
of  a  benefit  association  to  the  board  of 
control  of  the  endowment  rank,  to  have 
"entire  charge  and  full  control"  of  such 
rank,  does  not  authorize  the  board  to  enact 
laws.  Id. 
Changes  in. 

As   to   Matters   Relating   to   Insurance,   see 

Insurance,    195-199. 
For  Editorial  Notes,  see  infra,  VI.  §  3. 

24.  Any  change  or  amendment  of  the 
rules  of  a  voluntary  fraternal  organiza- 
tion, if  adopted  in  accordance  with  the 
mode  provided  by  the  association  there- 
for, is  binding  upon  each  of  the  members. 
Lawson  v.  Hewell,  118  CaL  613,  50  Pac. 
763,  49:  400 

25.  Where  a  change  is  regularly  made  in 
the  by-laws  of  a  benefit  society,  atid  the 
motive  which  influences  the  change  is  an 
honest  one, — to  promote  the  welfare  of  the 
society, — and  the  members  are  all  given 
an  opportunity  to  avail  themselves  of  the 
change,  no  actionable  wrong  is  done  the 
members  or  their  beneficiaries.  Supreme 
Lodge  K.  of  P.  V.  Knight,  117  Ind.  489,  20 
N.  K.  479,  483,  3:  409 

26.  A  person  who  becomes  a  member  of 
a  benefit  societj-,  the  constitution  of  which 
makes  a  clear  reservation  of  the  right  to 
amend,  is  bound  to  take  notice  of  the  ex- 
istence and  elfect  of  that  reserve  power. 

Id. 

27.  An  amendment  to  the  constitution 
of  a  benevolent  order  incorporated  as  the 
"Scjvercign  Camp  of  the  Woodmen  of  the 
World,"  when  adopted  by  delegates  as- 
sembled as  the  sovereign  camp,  in  the 
manner  required  by  the  by-laws,  is  a  prop- 
er exercise  of  the  power  given  to  the  cor- 
poration to  make  its  own  couhtitution  and 
to  exercise  general  legislative  authority, 
when  the  sovereign  camp  constitutes  the 
supreme  judicial  department  of  the  order, 
altiiough  an  executive  council  composed  of 
the  ollicers  of  the  sovereign  camp  may  ex- 
ercise legislative  authority  under  certain 
conditions  and  limitations.  Sovereign  Camp 


W.  O.  W.  V.  Fraley,  94  Tex.  200,  59  S.  W. 
879,  51:  898 

28.  Changes,  amendments,  and  repeals  of 
the  by-laws  of  a  beneficial  insurance  asso- 
ciation are  subject  to  the  restrictions  and 
limitations  of  the  charter  or  articles  of  as- 
sociation, and  of  the  by-laws*  themselves, 
and  also  subject  to  the  implied  condition 
of  being  reasonable.  Thibert  v.  Supreme 
Lodge  K.  of  H.  78  Minn.  448,  81  N.  W. 
220,  47:  136 

29.  A  provision  in  the  constitution  of  a 
benefit  society,  that  members  should  be- 
come such  subject  to  the  power  of  the  cor- 
poration to  change  its  by-laws,  cannot  be 
construed  into  liberty  to  change  at  will 
the  contract  of  insurance  it  has  made  with 
each  member.  Bragaw  v.  Supreme  Lodge 
K.  &  L.  of  H.  128  N.  C.  354,  38  S.  E.  905, 

54:  602 

30.  A  mere  general  consent  by  a  member 
of  a  mutual  benefit  society,  that  the  con- 
stitution and  by-laws  may  be  amended, 
applies  only  to  such  reasonable  regulations 
as  may  be  within  the  scope  of  its  original 
design,  and  does  not  authorize  changes 
which  will  destroy  tte  value  of  his  con- 
tract. Strauss  v.  Mutual  Reserve  Fund 
L.  Asso.  126  N.  C.  971,  36  S.  E.  352,  128 
N.  C.  465,  39  S.  E.  55,  54:  605 

31.^  The  contract  evidenced  by  a  certif- 
icate of  membership  in  a  mutual  benefit  so- 
ciety cannot,  after  the  holder  has  paid 
large  sums  thereon,  be  altered  by  resolu- 
tions of  the  society  without  the  holder's 
consent  so  as  to  place  him  in  a  class  and 
assess  that  class  in  a  manner  different 
from  the  rule  applied  to  newer  members, 
the  result  of  which  is  to  destroy  the  value 
of  the   contract.  Id. 

32.  A  provision  in  a  certificate  of  mem- 
bership in  a  benefit  society,  that  the  holder 
shall  comply  with  the  constitution  and  by- 
laws of  the  association,  a  copy  of  which  is 
attached  to  the  certificate,  refers  to  such 
laws  as  they  then  exist,  and  will  not  bind 
him  to  submit  to  a  change  subsequently 
made,  depriving  him  of  the  right  to  dis- 
pose of  the  benefit  by  will,  although  the 
constitution  provides  for  amendment.  Pe- 
terson v.  Gibson,  191  111.  365,  61  N.  E.  127, 

54:  836 

33.  The  ollicers  of  a  mutual  benefit  asso- 
ciation have  no  power  to  waive  the  provi- 
sions of  such  by-laws  as  relate  to  the  sub- 
stance of  the  contract  between  the  indi- 
vidual member  and  his  associates,  in  th^r 
corporate  capacity,  where  the  constitution 
and  by-laws  of  the  association  limit  the 
appointment  of  its  officers  and  the  scope  of 
their  powers  and  duties,  and  forbid  the  al- 
teration or  amendment  of  such  constitu- 
tion except  by  the  governing  body  in  the 
mode  therein  provided,  and  where  the  mem- 
bers of  such  association  have  agreed,  as 
part  of  their  contract  of  membership,  to 
comply  strictly  with  the  laws,  rules,  and 
regulations  of  the  association.  Kocher  v. 
Supreme  Council  C.  B.  L.  (N.  J.  Err.  & 
App.)  Go  N.  J.  L.  649,  48  Atl.  544,        52:  861 

34.  The  amendment  to  the  charter  of  a 
produce  exchange  and  the  by-laws  enacted 


BENEVOLENT  SOCIETIES,  IV. 


243 


purmant  thereto,  establishing  a  gratuity 
fund  for  the  families  of  deceased  members, 
to  be  created  by  assessment,  as  well  as  the 
wmtract  among  the  members  providing  for 
the  making  of  assessments  and  the  payment 
■Vi"  benefits,  must  be  looked  to  in  determin- 
ing a  member's  rights,  where,  by  the  con- 
tract, the  assessments  to  which  he  is  liable, 
and  the  payments  to  his  beneficiaries,  are 
to  be  determined  by  the  "by-laws;"  and 
consequently  he  is  bound  by  reasonable 
amendments  to  the  by-laws.  Parish  v.  New 
York  Produce  Exchange,  109  N.  Y.  34,  61 
N.  E.  977,  56:  149 

35.  An  association  authorized  by  char- 
ter, and  undertaking  by  its  by-laws,  to  ac- 
cumulate a  fimd  for  the  benefit  of  per- 
sons dependent  upon  members  at  the  time 
of  their  death,  cannot  bind  dissenting  mem- 
bers by  an  amendment  of  its  by-laws  so  as 
to  distribute  the  accumulated  fund  among 
the   living   members.  Id. 

36.  An  amendment  to  the  by-laws  of  an 
association  authorized  to  accumulate  a 
fund  for  the  benefit  of  persons  dependent 
on  members  at  the  time  of  their  decease 
will  fall  entirely  if  it  contains  an  illegal 
provision  which,  from  its  importance,  may 
liave  contributed  more  than  any  of  the 
others  to  secure  the  small  majority  of 
votes  bv  which  it  was  adopted.  Id. 

37.  The  aaoption,  certification,  promulga- 
tion, and  printing  as  one  full  and  complete 
instrument,  of  a  constitution  by  the  proper 
body  of  a  benefit  society,  will  cause  that 
instrument  to  annul  and  supersede  all  por- 
tions of  former  constitutions  which  are 
not  embodied  in  it.  Supreme  Lodge  K.  of 
F\  V.  La  Malta,  95  Tenn.  157,  31  S.  W. 
493,  30:  838 


IV.  Membership;   Expulsion. 

Members  Bound  by  Constitution,  By-Laws, 

etc..  see  supra.  III. 
For   Editorial   Notes,   see  Associations,   III. 

§  2;  and  also  infra,  VI.  §  2. 
Representation  of  members. 

38.  The  representation  of  the  4.000 
Maryland  members  in  the  Supreme  Lodge, 
Order  of  the  Golden  Chain,  extends,  under 
Md.  Laws  1894,  chap.  295  (Md.  Code,  art. 
2.3,  §  143el),  to  eight  members,  as  the  law 
gives  the  right  to  as  many  representatives 
as  will  equal  the  number  of  times  the  mem- 
l)ership  is  greater  than  the  unit  of  repre- 
•^entation,  which  is  the  number  of  mem- 
bers necessary  to  secure  one  representative, 
and  the  constitution  of  the  organization 
gives  each  state  one  representative  for  the 
first  500  members,  although  it  also  pro- 
ceeds to  declare  that  there  shall  be  two 
representatives  for  1,500  and  three  for 
4,500.  Supreme  Lodge  Order  of  Golden 
(^hain  v.  Simering,  88  Md.  276.  40  Atl.  723, 

41 :  720 
Expulsion. 

Vfeasure  of  Damages  for,  see  Damages,  2.'i0. 
Injunction  against,  see  Iniunction,  234-238. 
Reinstatement,  see  Insurance,  635;  Manda- 
'    muB,  195. 


Question  for  Jury  as  to  Notice  Before  Ex-. 

pulsion,  see  Trial,  226. 
See  also  Insurance,   199. 
For  Editorial  Notes,  see  Associations,  ill.  § 

2,  and  also  infra,  VI.  §  2. 
38a.  Affirmative  action  on  the  part  of  tile 
society  is  not  necessary  to  terminate  the 
rights  of  a  member  of  a  mutual  benefit  so- 
ciety with  reference  to  the  benefit  fund,  for 
violation  of  the  rules  of  the  order,  where 
the  contract  provides  that  there  shall  be  no 
liability  upon  any  certificate  of  membership 
unless  che  member  shall  have  complied  with 
all  such  rules,  although  such  action  would 
be  necessary  to  expel  him  from  membership. 
Langnecker  v.  Trustees  of  Grand  Lodge  A. 
O.  U.  W.  Ill  Wis.  279,  87  N.  W.  293, 

55:  185 

39.  A  by-law  of  a  mutual  benefit  society 
providing  for  the  expulsion  of  mepbers  for 
defaming  members  of  the  directing  council, 
or  any  member  whatsoever,  for  reasons  con- 
nected with  the  society,  causing  dissensions 
and  disorders  in  the  midst  of  the  associa- 
tion, is  reasonable.  Del  Ponte  v.  Societa 
Italiana  di  Marconi  (R.  I.)  60  Atl.  237, 

70:  188 

40.  A  by-law  of  a  mutual  benefit  society 
requiring  the  expulsion  of  a  member  who  en- 
gages in  a  certain  business  by  necessary  im- 
plication prohibits  such  business,  so  that  his 
engaging  in  it  will  be  a  violation  of  the 
rules  of  the  society.  Langnecker  v.  Trus- 
tees of  Grand  Lodge  A.  O.  U.  W.  Ill  Wis. 
279,  87  N.  W.  293,  55:  185 

41.  A  by-law  of  a  mutual  benefit  society, 
which  provides  that  any  member  of  the  or- 
der, who  shall,  after  a  certain  date,  enter  in- 
to a  certain  business,  shall  be  expelled  from 
the  order,  will  apply  to  a  member  not  en- 
gaged in  such  business  at  the  time  men- 
tioned, although  he  has  formerly  been  so  en- 
gaged. Id. 

42.  A  requirement  of  the  constitution  of 
a  mutual  benefit  society  that  its  privileges 
shall  be  limited  to  members  of  a  specified 
religious  denomination,  and  that  members 
neglecting  to  comply  with  the  rules  govern- 
ing that  denomination  shall  be  suspended  or 
expelled,  does  not  violate  a  provision  of  the 
state  Constitution  securing  the  right  to  wor- 
ship God  according  to  the  dictates  of  one  a 
own  conscience,  and  providing  that  no  hu- 
man authority  can  control  or  interfere  with 
the  rights  of  conscience.  Franta  v.  Bohe- 
mian Roman  Catholic  C.  Union,  164  Mo.  304, 
63  S.  W.   1100,  54:  723 

43.  One  who  joins  a  mutual  benefit  society 
whose  by-laws  provide  that  no  one  can  be 
a  member  of  it  who  is  a  member  of  a  so- 
ciety not  approved  bj^  a  particular  church 
cannot  complain  if  he  is  expelled  fiom  the 
society  for  membership  in  a  society  prohib- 
ited by  such  church.  Mazurkiewicz  v.  St. 
Adelbertus  Soc.  127  Mich.  145,  86  N.  W.  543, 

54:  727 

44.  Benefit  societies  being  charitable  or- 
ganizations, their  proceedings  may  be  law- 
fully transacted  on  Sunday,  even  to  the 
hearing  and  determination  of  charges 
against  members  which  result  in  their  ex- 


244 


BENEVOLENT  SOCIETIES,  V 


pulsion.     Pepin  v.  Societe  St.  Jean  Baptiste, 
24  R.  I.  550,  54  Atl.  47,  60:  626 

45.  The  hearing  of  charges  against  a  mem- 
ber of  a  benefit  society,  and  expelling  him, 
ffom  membership  because  of  violation  of  the 
rules,  are  not  a  judicial  proceeding  within 
the  rule  which  forbids  such  proceedings  on 
Sunday.  Id. 

46.  The  unlawful  expulsion  of  a  member 
of  a  mutual  benefit  society  will  not  give  him 
a  right  of  action  for  damages,  as  such  action 
is  based  on  an  acquiescence  in  the  expul- 
sion and  a  waiver  of  the  illegality  which 
must  be  counted  a  waiver  of  the  entire  cause 
of  action.  Other  reasons  against  the  action 
are  found  in  the  lack  of  any  fund  from 
which  damages  can  be  paid  and  in  the  im- 
possibility of  measuring  the  damages.  The 
proper  remedj'  is  mandamus  to  restore  him 
to  membership.  Lavalle  y.  Soci^t^  St.  Jean 
Baptiste  de  Woonsocket,  17  B.  I.  680,  24  Atl. 
467.  16:  392 

47.  A  mutual  benefit  society  cannot  escape 
liability  for  damages  for  the  illegal  expul- 
sion of  a  member  on  the  ground  that  the 
meeting  at  which  the  expulsion  occurred  was 
not  a  lawful  one,  and  that,  therefore,  its 
action  was  not  binding  on  the  society,  where 
the  society  at  a  subsequent  regular  meet- 
ing approved  the  act.  LahifT  y.  ^t.  Joseph's 
Total  Abstinence  &  Beoev.  Soc.  76  Conn. 
048,  57  Atl.  692,  65:  92 

48.  The  possibility  of  resorting  to  man- 
damus to  compel  reinstatement  to  his  rights 
will  not  deprive  a  member  wrongfully  ex- 
pelled from  an  unincorporated  benefit  socie- 
ty of  the  right  to  resort  to  an  action  for 
damages,  where  the  circumstances  are  such 
that  mandamus  could  not  restore  him  to  the 
full  enjoyment  of  the  privileges  of  member- 
ship. Id. 

49.  A  member  who  has  been  wrongfully 
expelled  from  an  tinincorporated  benefit  so- 
ciety may  abandon  all  claims  to  reinstate- 
ment, and  resort  to  an  action  for  damages 
for  the  injury  inflicted  upon  him  by  the 
expulsion.  Id. 

50.  The  termination  of  membership  in  a 
Masonic  lodge,  which  is  in  substance  and 
efi"ect  an  expulsion,  although  not  so  in  form, 
forfeits  meinborship  in  a  Masonic  mut\ial 
benefit  association  which  not  only  provides 
that  expulsion  from  the  lodge  shall  work  a 
forfeiture  of  membership  in  the  association, 
but  also  makes  it  a  retjuisite  for  membership 
that  Ihe  applicant  be  a  Mason  in  good  stand- 
ing. KUcrbe  v.  Faust,  119  :Mo.  65.3.  25  S.  W. 
390,  25:  149 

51.  No  appeal  is  necessary  troni  an  inferi- 
or to  a  superior  tribunal  of  a  nintnal  bene- 
fit society,  to  avoid  the  efl"ect  of  an  absolute- 
ly voiil  expulsion  of  a  member,  l/angnecker 
v.  Trustees  of  Crand  Lodge  A.  0.  U.  W.  Ill 
Wis.  279,  87  X.  W.  293.  55:  185 

52.  A  member  of  a  benefit  society'  having 
actual  notice  of  the  charge  against  him  for 
which  he  is  expelled  from  the  society  can- 
not reverse  the  decision  l)ecause  such  charge 
is  not  specially  stated  in  the  form  of  pro- 
ceedings against  him.  Pepin  v.  Societe  St. 
Jean   Baptiste.   24   P.    I.   550.   54   Atl.   47, 

60:  020 


V.  Irregularities:    Dissolution. 

For  Editorial  Notes,  see  infra,  VI.  §  1. 

53.  It  is  a  breach  of  official  duty  for  the 
officers  of  a  mutual  benefit  society  to  fail 
to  keep  correct  and  intelligible  books  of  ac- 
count, whether  such  failure  results  from 
design,  careles.sness,  or  want  of  skill.  Chi- 
cago Alut.  L.  I.  Asso.  V.  Hunt.  127  111.  257, 
20  N.  E.  55,  2 :  549 

54.  Limiting  and  perpetuating  the  admin- 
istration of  the  society  in  the  hands  of  the 
manager  and  secretary,  by  means  of  a  sys- 
tem of  blank  proxies  inadvisedly  signed  by 
applicants  for  membership,  is  a  violation  of 
the  provision  of  the  statute  requiring  the 
affairs  of  mutual  benefit  societies  to  be  man- 
aged by  not  less  than  five  trustees.  Id. 

65.  A  promise  to  members  to  refund  to 
them,  at  the  expiration  of  a  certain  period, 
all  the  reserve  fund  to  which  they  wo\ild  be 
equitably  entitled,  is  a  violation  of  the  stat- 
utory prohibition  against  the  receipt  by 
members  of  mutual  benefit  societies  of  any 
money  as  profit.  Id. 

56.  The  creation  of  a  tontine  reserve  fund 
to  be  distributed  among  persistent  meml)er3 
after  a  certain  period,  out  of  moneys  col- 
lected for  death  l)eTiefits,  is  a  violation  of 
the  statute  which  requires  such  moneys  to 
be  devoted  to  i)ayment  of  death  benefits 
only,  and  will  Avarrant  a  dissolution  of  the 
society.  Id. 

57.  Numbering  certificates  of  membership 
much  higher  than  the  actual  number  issued 
operates  as  a  fraud  upon  those  becoming 
members  in  reliance  tipon  such  false  num- 
bers, and  is  an  improper  practice,  whether  or 
not  done  with  an  actual  intent  to  deceive 
and  defraud.  Id. 

58.  The  use  of  advance  mortuary  assess- 
ments to  pay  current  expenses  is  such  a  vio- 
lation of  law  as  will  warrant  the  dissolu- 
tion of  a  mutual  benefit  society,  where  the 
statute  provides  that  no  part  of  the  funds 
collected  for  the  payment  of  deatli  benefits 
shall  be  applied  for  any  other  purpos«v     Id. 

59.  A  proceeding  to  dissolve  a  mutual  ben- 
efit society,  or  to  remove  its  officers,  for  fail- 
ure to  make  pro|)er  reports  or  for  improp- 
erly conducting  its  business,  instituted  un- 
der 111.  act  188.'),  §  10.  is  not  a  criminal  pros- 
ecution within  the  meaning  of  111.  Const,  art. 
6,  §  33,  which  requires  criminal  prosecutions 
to  be  carried  on  'in  the  name  and  by  the 
authority  of  the  people  of  the  state  of  Illi- 
nois," but  is  a  civil  proceeding  to  protect 
property  rights,  and  may  be  brought  in 
equity  l)v  the  attorney  general  in  his  own 
name.  Id. 

60.  Jurisdiction  to  decree  the  dissolution 
of  a  corixjration  may  be  conferred  upon 
courts  of  equity  by  statute;  and  such  juris- 
diction is  so  conferred  by  HI.  act  1883  (I 
Starr  &  C.  Stat.  1348),  in  reference  to  mu- 
tual l>enefit  societies.  Id. 

61.  Elinors  are  not.  merely  because  of  their 
minority,  disqualified  from  becoming  mem- 
bers of  mutual  benefit  societies,  in  the  ab- 
sence of  any  statute  on  the  subject;  and 
their  admission  is   not  such   a  violation  of 


BENEVOLENT  SOCIETIES,  VI.— BIBLE. 


215 


the  policy  of  the  law  as  will   subject  such 
•  Bociety  to  dissolution.  Id. 


VI.  Editorial  Notes. 

As  to  Conclusiveness  and  Review  of  Deci- 
sions of,  see  Courts,  VI.  § 
3. 

§  I.  Generally. 

How  regarded  under  the  vnrjous  state  stat- 
utes.    2:421.* 

Is  a  benefit  association  an  insurance  com- 
pany.    38:  33. 

Enlarged  powers  conferred  bv  statute.  4: 
382.* 

Dissolution  of.     2:  550.* 

Property  rights.     2:  841.* 

Liability  of  property  owned  by  fiaternal 
societies  to  asi?assment  for 
local  improvements.  35: 
38. 

§  2.  Rights  and  obligations  of  members. 

Expulsion  and  Discipline  of  Members,  see 
Associations,  III.  §  2. 

Powers  of  members  of.     2:  163.* 

Laws  of  society  determining  rights  of  mem- 
bers.   5:  96." 

Application  of  accrued  benefits  upon  dues 
or  assessments  accruing 
on  a  benefit  certificate. 
.55:  605. 

§  3.  Regulations;  by-laws. 

Power  to  make  by-laws;   repeal.     3:  409.* 

Members  bound  by  by-law.     3:  409.* 

Amendment  and  repeal  of  by-laws.     3:  409.* 


BENZINE. 

Effect  of  Keeping,  on  Insurance,  see  Insur- 
ance, 481,  482. 


BEQUEST. 


Bee  Wills,  in. 


BERMUDA  GRASS. 


The  mere  spreading  to  adjoining  farms  of 
Bermuda  grass  planted  by  a  railroad  com- 
pany upon  its  right  of  way  to  preserve  the 
embankments  does  not  render  the  company 
liable  for  the  damages  caused  thereby,  where 
it  is  not  shown  that  a  person  of  ordinary 
prudence  would  not  have  planted  such  grass 
upon  such  right  of  way.  (Sulf.  C.  &  S.  F. 
R.  Co.  V.  Oakes,  94  Tex.  155,  58  S.  W.  999, 
'  52:  293 


BERRIES. 
Levy  on,  see  Levy  and  Seizure,  25. 


BERTILLON  SYSTEM. 

Authority  to  Measure  Convict  Awaiting  Ex* 
ecution,  see  Convicts,  6. 


BEST  AND  SECONDARY  EVIDENCE. 
See  Evidence,  III. 


BETTERMENTS. 


Preference  of  Claim  for,  see  Receivergi,  93,  98, 
107. 


BETTING. 

Validity  of  Note  Payable  in  Event  of  Elec- 
tion to  Office,  see  Bills  and  Notes,  25. 

Validity  of  Gambling  and  AVager  Contracts, 
see  Contracts,  III.  d. 

Regulation  of,  as  Interference  with  Com- 
merce, see  Commerce,  8-10. 

On  Horse  Race,  see  Conflict  of  Laws,  244 ; 
Gaming,  11-16. 

Playing  Pool  as.  see  Gaming,  1. 

Partnership  in  Business  of,  see  Partnership, 
104-107. 

Title  of  Statute  as  to,  see  Statutes,  230-232. 

1.  The  Texas  statute  against  betting  on 
the  result  of  an  election  is  not  violated 
where  one  party  o  tiers  to  bet  a  specified 
amount  on  the  result  of  an  election,  and 
puts  up  such  amount,  while  the  other  party 
puts  up  a  smaller  amount,  which  is  to  be  for- 
feited upon  his  failure  within  a  specific 
time  to  put  up  the  balance,  and  a  forfeiture 
is  declared  for  failure  to  put  up  the  balance. 
Rich  V.  State,  38  Tex.  Crim.  App.  199,  42  S. 
W.  291,  .38:  719 

2.  Money  deposited  with  a  stakeholder  as 
a  wager  on  a  foot  race,  by  one  who  knows 
that  the  race  is  to  be  bogus  and  has  been 
fixed  in  advance,  may  be  recovered  by  him 
on  demand  before  the  race  has  been  run. 
Bernard  v.  Taylor,  23  Or.  416,  31  Pac.  968, 

18:  859 


BIAS. 

Effect  of.  on  Competency  of  Juror,  see  Jury, 

84,  95. 
Cross-Examination  of  Witness  to  Show,  see 

Witnesses,  116-118. 


BIBLE. 

Judicial  Notice  of  Contents  of,  see  Evidence, 

145. 
Entries  in,  as  Evidence,  see  E\'idence,  1018, 

1019. 


246 


BICrCLE  PATHS;  BICYCLES. 


Reading  of,  in  Schools,  see  Constitutional 
Law,  1094;  Evidence,  136;  Pleading, 
448;   Schools,  114,   119-128;   Trial,  508. 

Editorial  Notes. 

Entries  in,  as  evidence.    41:  449. 

<  » » 


BICYCLE  PATHS. 

Indictment  for  Driving  on,  see  Indictment, 

etc.,  69. 
License  Tax  to  Maintain,  see  License,  45. 
Special  Jjegislation  as  to,  see  Statutes,  375. 
Tax  for,  see  Taxes,  70,  71. 

1.  A  bicycle  path  constructed  with  the 
proceeds  of  a  tax  on  bicycles  is  a  highway 
for  bicvclists  and  pedestrians.  Ellis  v.  Fra- 
zier.  38  Or.  462,  63  Pac.  642,  53:  454 
Prohibition  against  driving  animals  or  ve- 
hicles on. 

2.  The  bicycle  paths  upon  which  it  is  made 
unlawful  by  Minn.  Laws  1899,  chap.  43,  §  1, 
to  drive  animals  or  vehicles  except  bicycles, 
include  public  bicycle  paths  only,  and  not 
private  biej-cle  paths  which  a  persan  has 
constructed  upon  his  own  land.  Stat«  v. 
Bradford,  78  Minn.  387,  81  N.  W.  202, 

47:  144 

3.  The  establishment  of  a  public  bicycle 
path  by  county  commissioners  is  impliedly 
ratified,  and  the  use  of  a  portion  of  the 
public  highway  therefor  impliedly  author- 
ized, by  Minn.  Laws  1899,  chap.  43,  §  1, 
making  it  a  misdemeanor  to  drive  animals 
or  any  vehicles  except  bicycles  upon  such 
paths.  Id. 
Duty  and  liability  of  city  constructing. 

4.  The  location  of  a  bicycle  path  is  not 
80  far  a  governmental  function  that  the 
city  making  it  will  be  relieved  on  that 
ground  from  liability  for  injuries  caused  by 
a  location  which  ig  unsafe  for  the  ordinary 
travel  for  which  it  is  intended.  Prather  v. 
Spokane.  29  Wash.  549,  70  Pac.  55,     59:  346 

6.  A  city  which  voluntarily  constructs 
a  cinder  bicycle  path  along  the  side  of  one 
of  its  streets  must  construct  and  maintain 
it  80  that  it  will  be  reasonably  safe  for  the 
ordinary  use  for  which  it  is  intended.       Id. 

6.  A  city  which  locates  a  turn  in  a  bicy- 
cle path  at  a  street  corner,  within  4  feet  of 
the  gutter  of  the  cross  street,  into  which 
persons  usinsr  it  are  liable  to  ride  and  be 
injured,  without  any  barrier,  siirn.  or  other 
means  of  notifying  travelers  of  the  danger, 
is  liable  to  a  traveler  who.  after  dark,  in 
the  exercise  of  ordinary  care,  goes  over  the 
curb  and  is  injured.  Id. 

7.  ihat  one  using  a  bicycle  path  con- 
structed by  the  city  for  that  purpose  might 
have  used  the  street  without  injury  will 
not  relieve  the  city  from  liability  for  inju- 
ries caused  by  the  unsafe  condition  of  the 
path.  Id. 


BICYCLES. 


Assault  bv  Use  of,  see  Assault  and  Battorv. 
10. 


Discrimination  against  Riders,  see  Consti- 
tutional Law,  M8,  349. 

Judicial  Notice  as  to,  see  Evidence,  102,  161. 

Burden  of  Disproving  Negligence  in  Use  of, 
see  Evidence,  559. 

Exemption  of,  see  Exemptions,  42. 

Manslaughter  by  Collision  Resulting  in 
Death,   see  Homicide,  7. 

Restraining  Use  of  Railroad  Track  by  Rider, 
see  Injunction,  421. 

License  Tax  on,  see  License,  45,  100. 

Tax  on,  see  Statutes,  375;  Taxes,  70,  71. 

Title  of  Ordinance  Regulating,  see  Munici- 
pal Corporations,  100. 

Municipal  Liability  for  Injury  by,  see  Mu- 
nicipal Corporations,  549,  550. 

Contributory  Negligence  of  Boy  Riding,  see 
Negligence,  200. 

Rider's  Right  to  Pass  on  Right-Hand  Side, 
see  Neglisrence,  233,  and  also  infra. 
Editorial  Notes. 

Proximate  Cause  of  Injury  to  Rider,  see 
Proximate  Cause,  92,  105. 

Injury  to  Rider  by  Street  Car,  see  Street 
Railways.  124,  129,  148,  and  also  infra. 
Editorial  Notes. 

Right  to  Collect  Toll  from  Riders,  see  Tolls 
and  Toll  Roads,  18-21,  and  also  infra. 
Editorial  Notes. 

Injury  to  Rider.  Question  for  Jury,  see 
Trial,  395,  396. 

For  Bicycle  Paths,  see  Bicycle  Paths. 

On  sidewalk. 

Tricycle  as  Bicycle,  see  Highways,  102. 
Who   may  be   Informer  as   to   use   of,   so* 
Informers. 

1.  The  riding  of  a  bicycle  upon  a  sidewalk 
is  not  an  unlawful  act  at  the  common  law. 
Lee  V.  Port  Huron,  128  Mich.  533,  87  N.  W. 
637,  55:  308 

2.  Charter  power  to  regulate  the  use  of 
sidewalks  authorizes  an  ordinance  permit- 
Uxi'i  the  riding  of  bicycles  on  them,  where 
such  act  will  not  amount  to  a  nuisance.    Id. 

3.  A  tricycle  is  not  within  the  scope  of 
an  ordinance  prohibiting  the  use  of  "all  va- 
rieties of  vehicles  known  by  the  general 
name  'bicycles,'  "  on  sidewalks.  Wheeler  v. 
Boone,  108  Iowa,  235,  78  N.  W.  909,    44:  821 

4.  A  sidewalk  is  intended  for  the  use  of 
pedestrians,  and  a  person  on  a  bicycle  makes 
an  unlawful  use  of  it  when  he  rides  or  drives 
his  bicycle  along  it  loniritudinallv.  Mercer 
V.  Corbin,  117  Ind.  4.50,  20  in.  E.  132,    3:  221 

5.  One  riding  a  bicycle  on  a  sidewalk  or 
footway  incurs  the  penalty  provided  by  Pa. 
act  May  7.  1889,  against  driving  any  horse 
or  any  other  animal  upon  such  walk,  by  vir-. 
tue  of  the  act  of  April  23.  1889,  declaring' 
that  bicycles  and  persons  using  them  are 
entitled  to  the  same  rights  and  subiect  to' 
the  same  restrictions  as  are  prescribed  in 
case  of  persons  using  carriages  drawn  bv 
horses.  Com.  v.  Forrest,  170  Pa.  40.  3-?  Atl. 
653.  29:  .365 

6.  The  fact  that  a  sidewalk  was  on  land 
appropriated  by  a  turnpike  company,  and 
had  been  constructed  and  kept  un  by  the 
turnpike  company,  aided  by  contributiona 
from  village  residents,  does  not  exempt  it 
from  the  provisions  of  Pa.  act  1889,  prohibit-l 


BICYCLES. 


347 


jng  the  use  of  sudh  walks  by  persons  riding 
bicycles.  Id. 

7.  The  consent  of  a  turnpike  company  to 
the  use  by  bicycles  of  a  sidewalk  established 
alongside  the  highway  and  on  land  appro- 
priated by  the  company  cannot  make  such 
use  lawful  under  Pa.  act  1889,  prohibiting 
the  use  of  bicycles  on  sidewalks.  Id. 

8.  The  unlawful  use  of  a  sidewalk  by  bi- 
cyclers for  a  time  without  complaint  can- 
not avail  as  a  defense  to  the  prosecution  ot 
a  person  for  such  offense.  Id. 
On  bndge. 

Burden  of  Proof  as  to,  see  Evidence,  204. 

9.  A  law  forbidding  the  riding  of  bicycles 
on  a  public  bridge  is  reasonable  if  such  rid- 
ing would  be  likely  to  frighten  horses  and 
imperil  the  lives  of  passengers  on  the  bridge. 
Twilley  v.  Perkins,  77  Md.  252,  2G  Atl.  28(5, 

19:  632 

10.  A  rule  or  by-law  forbiddi^ig  any  per- 
son to  ride  a  bicycle,  tricycle  or  velocipede, 
over  a  public  bridge  is  within  the  authority 
granted  to  county  commissioners  by  statute 
to  "make  reasonable  rules  and  regulations 
for  the  use  of  said  bridge."  Id. 

11.  An  ordinance  making  it  unlawful  to 
ride  upon  any  bicycle  or  velocipede  upon 
any  sidewalk  within  the  city  of  Topeka, 
Knnsas,  or  across  the  Kansas  river  bridge, 
will  not  be  construed  to  forbid  riding  on  that 
part  of  the  bridge  used  for  other  vehicles, 
as  such  a  construction  would  render  the  or- 
dinance void.  Swift  V.  Topeka,  43  Kan.  671, 
23  Pac.  1075,  8:  772 
In  highway  generally. 

Rigiht  of  Person  Riding  in  Highway  to  Re- 
cover for  Injuries  Due  to  Defects  There- 
in, see  Highways,  251-255. 

Contributory  Negligence  on  Approaching 
Railroad  Track,  see  Railroads,  282,  and 
also  infra.  Editorial  Notes. 

12.  A  Dicycle  is  not  within  the  meaning  of 
a  statute  passed  in  1786,  requiring  highways 
to  be  kept  reasonably  safe  for  carriages. 
Richardson  v.  Danvers,  176  Mass.  413.  57  N. 
E.  688,  50:  127 

13.  A  bicycle  is  a  vehicle,  and  may  be  law- 
fully ridden  upon  the  public  highway  for 
convenience,  recreation,  pleasure,  or  business. 
Thompson  v.  Dodge,  58  T.linn.  555,  60  N.  W. 
345,  28:  608 

14.  An  ordinance  forbidding  the  use  of  bi- 
cycleson  that  part  of  a  public  street  devoted 
to  the  use  of  vehicles  is  void  as  atjainst  com- 
mon right.  Swift  v.  Topeka,  43  Kan.  671. 
23  Pac.  1075,  8:  772 

15.  A  person  driving  a  horse  on  a  highway 
has  no  rights  superior  to  those  of  a  person 
riding  a  bicvcle.  Thompson  v.  Dodsre,  .58 
Minn.  .555,  60  N.  W.  545,  28:  608 

16.  One  riding  a  bicycle  down  a  narrow 
path  at  a  rate  of  5  or  6  miles  an  hour,  when 
it  is  occupied  by  many  other  persons  going 
in  the  same  direction,  is  not  excused  from 
liability  for  running  into  a  pedestrian  by 
the  fact  that  the  accident  was  caused  by  his 
striking  an  obstacle, — at  least  if  it  does  noc 
appear  that  he  was  imable  to  see  and  avoid 
it  by  the. exercise  of  due  care.  Myers  v. 
Hinds,  110  Mich.  300,  68  N.  W.  156,    33:  356 

17.  A  person  who  rides  a  bicycle  without 


a  light  or  other  signal  of  warning  in  a  pub- 
lic thoroughfare  when  he  is  liable  to  meet 
moving  vehicles  or  pedestrians,  at  a  time 
when  objects  can  be  discerned  readily  at  a 
distance  of  but  a  few  feet,  is  guilty  of  neg- 
ligence. Cook  V.  Fogarty,  103  Iowa,  500,  72 
N.  W.  677,  39:  488 

18.  Authority  to  provide  for  the  safety 
of  its  inhabitants  will  give  a  municipality 
power  to  require  bicyclists  using  its  streets 
after  dark  to  carry  lights.  Des  Moines  v. 
Keller,  116  Iowa,  648,  88  N.  W.  827,    57:  243 

19.  The  reasonableness  or  unreasonable- 
ness of  an  ordinance  or  regulation  prohibit- 
ing any  person  to  ride  on  the  streets  a  bi- 
cycle having  handle  bars  of  which  the  lower 
end  is  on  a  plane  more  than  4  inches  below 
the  top  of  the  saddle  at  its  center  is  more 
or  less  a  question  of  fact,  depending  on  the 
proof  as  to  the  safety  of  such  a  vehicle 
when  used  by  a  person  of  ordinary  care  and 
skill  in  riding.  Moore  v.  District  of  Colum- 
bia, 12  App.  D.  C.  537,  41 :  208 
Rules  of  the  road. 

See  also  infra,  Euitorial  Notes. 

20.  A  bicycle  is  a  carriage  or  a  vehicle 
within  the  meaning  of  R.  I.  Pub.  Stat.  chap. 
66,  §  1,  requiring  every  person  traveling 
with  any  carriage  or  other  vehicle,  on  meet- 
ing any  other  person  so  traveling  on  any 
highway  or  bridge,  to  pass  on  the  right  of 
the  centre  of  the  traveled  part  of  the  road. 
State  v.  Collins,  16  R.  I.  371,  17  Atl,  131, 

3:  394 

21.  The  rider  of  a  bicycle  is  not  required 
to  give  waj'  to  a  heavily  laden  wagon  when 
turning  a  corner  and  keeping  on  the  right 
side  of  the  street,  as  required  by  the  law 
of  the  road  and  the  express  terms  of  an  or- 
dinance, unless  some  apparent  necessity  is 
shown  tor  an  exception  to  the  rule.  Foote 
v.  American  Product  Co.  195  Pa.  190,  45  Atl. 
934,  49:  764 

22.  One  riding  a  bicycle,  as  he  approaches 
a  corner,  keeping  on  the  right  side  of  the 
street,  has  a  right  to  assume  that  the  driver 
of  a  wagon  approaching  the  corner  from  an- 
other direction  will  keep  to  the  right  if  they 
meet,  so  that  the  bicycle  can  pass  between 
the  wagon  and  the  curb.  Id. 

23.  The  rule  requiring  drivers  of  vehicles 
drawn  by  horses,  and  riders  of  bicycles,  to 
regard  the  ordinary  rules  of  the  road  for 
each  other's  convenience  and  safety  in  the 
ordinary  occupancy  of  streets,  does  not  re- 
quire the  driver  of  a  cart  in  an  open,  un- 
obstructed highway  to  drive  to  one  side  in 
order  that  the  bicyclist  may  be  relieved  of 
the  necessity  of  deviating  from  a  straight 
line.  Taylor  v.  Union  Traction  Co.  184  Pa. 
465,  40  Atl.  159,  47:  289 

24.  Bicycles  are  not  within  the  meaning  of 
an  ordinance  giving  vehicles  a  right  of  way 
upon  street  railway  tracks  in  the  direction 
in  which  the  cars  usually  run.  over  vehicles 
moving  in  the  opposite  direction,  so  that  a 
bicyclist  riding  between  the  rails  can  compel 
an  approaching  vehicle  to  give  way  to  him. 

Id. 

25.  A  bicyclist  who  rides  between  street 
railway  tracks  towards  a  vehicle  approach- 
ing from  the  opposite  direction,  under  the 


248 


BID;  BIGAMY. 


erroneous  impression  that  he  can  compel  it 
to  give  way  to  him,  until  a  collision  is  un- 
avoidable, cannot  hold  the  owner  of  the  ve- 
hicle liable  for  injuries  received  by  him 
from  the  collision.  Id. 

26.  A  person  riding  between  the  rails  of 
an  electric  street  railway  upon  a  bicycle 
has  the  duty  to  look  out  for  and  endeavor 
to  avoid  danger  from  the  electric  cars.  Ev- 
erett V.  Los  Angeles  Consol.  Electric  R.  Co. 
115  Cal.  105,  43  Pac.  207,  34:  350 

27.  Contributory  negligence  will  prevent 
a  recovery  under  a  statute  making  one  driv- 
ing on  a  highwaj'  liable  for  damages  caused 
by  his  failure  to  turn  to  the  right  upon 
meeting  another  vehicle.  Cook  v.  Fogarty, 
103  Iowa,  500,  72  N.  W.  677,  39:  488 
Insurance  of. 

See  also  infra.  Editorial  Notes. 

28.  A  bicjcle  association  which  for  mem- 
bership fees  of  $6  per  year  agrees  to  clean  a 
member's  bicycle  twice  during  the  year,  re- 
pair tires  wben  punctured  by  accident,  and 
the  bicycle  when  damaged  by  accident,  and 
replace  it  if  stolen  unless  recovered  in 
eight  weeks,  and  provide  a  bicycle  during 
that  time,  does  not  constitute  an  insurance 
company  which  is  required  to  have  a  char- 
ter as  such,  under  Pa.  act  1876.  Com.  ex 
rel.  Hensel  v.  Provident  Bicvcle  Asso.  178 
Pa.  G36,  36  Atl.  197,  *  36:  589 

Editorial  Notes. 

Bif  ycle  law.    47 :  289. 

Right  of  bicyclists  to  use  highways, 
generally.    47:  289. 

\'alidity  of  enactments  restricting  the 
use  of  highways  by  cy- 
clists.   47:290.' 

Reciprocal  duties  of  cjclists  and  other 
persons  traveling  on  higli- 
ways.    47 :  292. 
Dutv    of    cyclists    to    pedestrians. 

47 :  292. 
Bicyclists      entitled      to      benefits 
and     subject     to    burdens 
of   the  rules  of  the  road. 
47:  293. 

Liability  for  frightening  horses.  47: 
295. 

Duty  of  cyclists  to  carry  bells  and 
lamps.    47:   295. 

Use  of  footpath  by  cyclists.    47:  296. 
Under  the  common  law.    47:  296. 
Under     statutes     and     ordinances. 
47 :  296. 

Right  of  cyclists  to  recover  for  injuries 
caused  by  detective  high- 
ways.    47 :  298. 

Special  enactments  for  the  protection 
and  convenience  of  cv- 
vUni-'.     47:  ."JOl. 

Injuries  to  cyclists  at  railway  cross- 
ings.    47:  301. 

Injuries  to  cyclists  caused  hv  s(  roet 
(>ars.     47:  :?(»2. 

Injuries  to  bicycles  left  standing  in 
streets.     47:  30.'!. 

Payment  of  tolls,  liabililv  ot  cvcles  to. 
47:  303. 

Cycles  as  a  subicct  of  taxation  by  mu- 
nicipalities.    47:  304. 


Bicycles  as   a  subject   of  contracts  of 

sale  or  lease.    47:  305. 
The  bicycle  as  a  subject  of  bailment.. 

47:  305. 
The  bicvcle  as  a  subject  of  insurance. 

47:307. 
When   a   bicycle   is   a   necessary   for   a. 

minor.     47:  307. 


BID. 

At  Auction,  see  Auction,  3,  4. 

Construction  of  Contract  as  to,  see  Con- 
tracts, 359. 

Validity  of  Contract  to  Aflfect,  see  Con- 
tracts, 426-430. 

Disqualification  of  Bidder,  see  Contracts^ 
514. 

Validity  of  Contract  Affecting,  see  Con- 
tracts, 634,  635. 

For  Corporate  Stock,  Performance  of  Con- 
tract to  Procure,  see  Contracts,  706. 

For  Public  Contract,  see  Contracts,  ^'II.  b. 

At  Judicial  Sale,  Necessity  of  Compliance 
with,  see  Judicial  Sale,  29-32. 

Grant  of  Franchise  to  Highest  Bidder,  see 
Railroads,  I. 

Editorial  Notes. 

Lowest,  for  public  contracts.    26:  707. 


BIGAMY. 

Conflict  of  Law  as  to,  see  Conflict  of  Laws, 
245,  246,  307. 

Evidence  of  I'ormer  JIarriage,  see  Evidence, 
979. 

Right  of  One  Committing  to  Administer  For- 
mer Husband's  Estate,  see  Executor* 
and  Administrators,  9. 

Competency  of  Wife  as  Witness,  see  Wit- 
nesses, 34,  37. 

1.  Cohabitation  with  a  bigamous  wife, 
in  violation  of  Ala.  Crim.  Code,  1896,  §  4406, 
continues  while  the  parties  live  together  os- 
tensibly as  husband  and  wife,  presenting^ 
to  the  community  the  appearance  of  the  open 
and  demoralizing  example  of  living  in  an 
illicit  relation,  although  in  fact  such  rela- 
tions have  ceaseil  because  of  the  wife's 
physical  incapacitv.  Cox  v.  State,  117  Ala. 
103,  23  So.  8(Mi,  41 :  760 

2.  A  man  may  be  guilty  of  bigamy  al- 
though he  believes  his  former  marriage  is 
annulled,  where  a  statute  describes  the  of- 
fense as  marrying  again  while  a  former  hus- 
band or  wife  is  living,  without  any  specific 
provision  as  to  criminal  intent.  State  v. 
Zichfeld,  23  Xcv.  .304,  4(t  Pac.  802,        34:  784 

3.  The  fact  that  at  the  time  one  accused 
of  polygamy  contracted  his  alleged  polyga- 
mous marriage,  he  had  a  bona  fide  and  rea- 
sonable belief  that  his  former  wife  was  dead, 
does  not  constitute  a  defen.se  under  tfae 
Massachusetts  statutes.  Com.  v.  Havden, 
163  Mass.  453,  40  N.  E.  846,  28:  318 


BILL  BOARDS— BILLS  AND  NOTES. 


249 


Editorial  Notes. 

Necessity  of  proof  of  marriage.     G8:  42. 
Criminal  liability  of  children  for.     36:  202. 


BILL  BOARDS. 


Judicial  Notice  as  to,  see  Evidence,  157. 

Unreasonableness  of  License  Fees  for  Main- 
taining, see  License,  149. 

Municipal  Regulation  of,  see  Municipal  Cor- 
porations, 153—158. 

jSIunicipal  Liability  for  Injury  by  Fall  of, 
see  Municipal  Corporations,  551. 

Liability  for  erecting  a  billboard  in  ex- 
cess of  the  height  authorized  by  ordinance  is 
not  controlled  by  the  fact  that  no  injury 
has  occurred  by  reason  thereof,  or  that  it 
is  improbable  that  any  such  injur\*will  occur 
therefrom.  Rochester  v.  West,  164  N.  Y. 
510,  58  N.  E.  673,  53:  548 


BILLS. 


See  Statutes. 


BILLS  AND  NOTES. 


I.  Nature;  Requisites  and  Validity. 

a.  In  general. 

b.  Validity   Cerierally;    Delivery. 

c.  Consideration. 

d.  Negotiability. 

1.  In  General. 

2.  Certainty  as  to  Maturity  and 

Amount.  , 

II.  Acceptance. 

III.  Indorsement  and  Transfers. 

a.  In  General. 

b.  Liability  of  Indorser. 

1.  In  General. 

2.  Indorsement  before  Delivery. 

3.  Restrictive  Indorsements. 

c.  Disdiarge  of  Indorser. 

IV.  Presentment;  Demand;  Notice;  Protest. 

a.  Necessity. 

b.  Sufficiency. 

c.  Notice  of  Protest. 
V.  Rights  of  Transferees. 

a.  Extent  of  Rights    and   Protection 

Generally. 

1.  In  General. 

2.  Of  Bona  Fide  Holders. 

b.  Who  are  Protected  as  Bona   Fide 

Purchasers. 

1.  In  General. 

2.  Knowledge;       Notice;       Facts 

Putting  on  Inquiry. 

3.  Taken   as   Collateral   Security 

or  for  Antecedent  Debt. 

VI.  Actions  and   Defenses;    Maturity. 

a.  In  General;    Right  of  Indorser  to 

Sue. 

b.  Maturity;  Extension. 
('.  Defenses. 

VII.  Editorial  Notes. 


For  Part  of  Debt  as  Accord  and  Satisfaction, 
see  Accord  and  Satisfaction,  11. 

Effect  on,  of  Releasing  Contract  of  Satisfac- 
tion, see  Accord  and  Satisfaction,  19. 

Alteration  of,  see  Alteration  of  Instruments, 
IL;  III. 

Recovery  by  Volunteer  Paying,  see  Assump- 
sit, 7. 

Recovery  of  Advance  Payment  of  Interest 
on,  see  Assumpsit.  30. 

Attachment  against  Bank  for  Outstanding 
Draft,  see  Attachment,  3. 

Provision  for  Attorneys'  Fees  in,  see  Attor- 
neys' Fees. 

Payment  Out  of  Bank  Deposit,  see  Banks, 
90-96. 

Cashier's  Check  as,  see  Banks,  131. 

Collection  of,  see  Banks,  IV.  b;  Pleading, 
316. 

Draft  with  Bill  of  Lading  Attached,  see 
Banks,  200;  Bills  of  Lading,  3-8;  Car- 
riers, 813;  Pleading,  290;  Sale,  23-26, 
and  also  infra,  VII.  §  1. 

Power  of  Loan  Association  to  Execute  or 
Accept,  see  Building  and  Loan  Associa- 
tions, 58,  59. 

As  to  Certificates  of  Deposit,  see  Banks,  IV. 
a,  4. 

As  to  Checks,  see  Banks,  IV.  a,  3;  IV.  b; 
Chefeks. 

Chattel  Mortgage  Securipg  Several  Notes, 
see  Chattel  Mortgage,  93. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
L  b,  2;  IIL  §  3. 

Oral  Agreements  as  to,  see  Contracts,  140- 
142. 

Authority  of  Corporate  Officers  to  Make,  see 
Corporations.  226,  231,  234,  242,  and 
also  infra,  VII.  §  8. 

Liability  of  Corporate  Officers  on,  see  Cor- 
porations, 295-302,  and  also  infra,  VII. 
§  8. 

Following  St^te  Decisions  as  to,  see  Courts, 
546-549. 

State  Courts  Following  Federal  Decisions  as 
to,  see  Courts,  517,  518. 

Measure  of  Damages  for  Protesting,  see 
Damages,  287. 

Restoration  of,  Before  Rescinding  Contract, 
for  Duress,  see  Duress.  12. 

Estoppel  of  Maker  to  Claim  Right  to  Re- 
ceive Back,  see  Estopi>el,  221. 

Presumption  and  Burden  of  Proof  as  to,  see 
Evidence.  170.  236.  282,  305,  403,  640, 
071-680.  091-<)94,  732-738. 

Proof  of  Ownership  of,  see  Evidence,  2272. 

As  Evidence,  see  Evidence,  IV.  ra. 

Pai"ol  Evidence  as  to,   see  Evidence,  VT.  f. 

Staj-  of  Execution  on  Judgment  for  Maker, 
see  Execution,  13. 

Personal  Liability  of  Personal  Representa- 
tive, see  Executors  and  Administrators^ 
81-83. 

Fraud  as  to,  see  Fraud  and  Deceit.  VI. 

Gift  of,  see  Gift.  13-18,  40,  43,  51,  56. 

Guaranty  of,  see  Guaranty,  14-18,  23,  25.  29, 
35,  38,  41. 

Third  Person's  Right  of  Action  on  Guaranty 
of,  see  Parties,  71. 


250 


RILLS  AND  NOTES.  I.  a. 


Exemption  of  Homestead  from,  see  Home- 
stead, 25. 

By  Married  Woman,  see  Conflict  of  Laws, 
11(>-118;  Husband  and  Wife,  28-35,  40, 
47. 

Injunction  against  Making,  for  Corporation, 
see  Injunction,  228. 

Stay  of  Action  on  Purchase  Money  Notes, 
see  Injunction,  270. 

Premium  Notes,  see  Insurance,  220,  602-606, 
644,  648-659,  809,  858-860. 

Interest  on,  see  Interest,  13,  14,  73,  82,  86, 
87,  98,  100. 

Joint  Liability  as  Makers  on,  see  Principal 
and  Surety,  6,  9,  55. 

Effect  of  Judgment  as  to,  see  Judgment, 
236. 

Judgment  on,  see  Judgment,  350,  368. 

Action  on  Lost  Note,  see  Lost  Instruments. 

Rights  of  Holder  in  Mortgage  Security,  see 
Mortgage  1,  79-81,  106-117,  127,  149, 
218. 

Surety  on  Mortgage  to  Secure,  see  Principal 
and  Surety,  10. 

Power  of  Partners  as  to,  see  Partnership, 
27-34. 

Liability  of  Partners  on,  see  Partnership, 
3(i,"37,  and  also  infra,  VII.  §  8. 

Payment  of  Firm  Debt  Out  of  Proceeds  of 
Note  to  Partner,  see  Partnership.  98. 

Payment  of,  see  Payment,  2,  4,  27-31 ;  Sub- 
rogation, 7. 

Payment  by  Note,  see  Payment,  8-12. 

Application  of  Payments  on,  see  Payment, 
.'{8-41.  48,  49. 

Pleading  as  to,  see  Pleading,  15,  41,  42,  86, 
120.  24:5.  2ti6.  288-291,  316,  409.  512,  583, 
534,  608. 

Failure  to  Pav  on  Dernand,  see  Pledge  and 
Coiinf^^nl'  Securitv.  l.*?. 

Fledge  to  Secure,  see  Pledge  and  Collateral 
oeturiiy,  13,  14. 

Pledge  of.  see  Pledge  and  Collateral  Secur- 
ity, 25,  26,  33. 

Agency  as  to  Loan,  see  Principal  and  Agent, 
2. 

Holder's  Power  to  Repudiate  Condition 
Agreed  to  by  Agent  Taking,  see  Prin- 
'ipal  and  Agent.  19.  20. 

Liability  of  Agent  Signing,  see  Principal  and 
Agf-nt,  92.  and  also  infra.  VII.  §  8. 

Surety  on,  see  Conflict  of  Laws,  41;  Prin- 
cipal and  Surety.  1,  3,  6.  9,  11,  12,  25,  28, 
29.  34.  35,  40-4  i.  51.  .-52,  55. 

Kote  for  Purchase  l*riee  of  Goods,  see  Sale, 
100.  126,  131,  164-166. 

EfToft  of  Taking,  on  Ritrht  of  Stoppage  in 
Transitu,  see  Sale,   148,  149. 

Set-Ofl"  of.  or  Against,  see  Set-OfT  and  Coun- 
terclaim. 41,  51-5.3.  61. 

Taxat-on  of,  see  Taxes,  109.  121,  34.3. 

Liability  of  Town  on,  see  Towns;  18. 

Usury  in.  see  Usury,  12-16,  .32,  35-37,  39,  42- 
44,  50-53. 

Pot  Purchase  Money,  see  Vendor  and  Pur- 
chaser, •».i,  61,  63.  64, 

Secured  by  ^■enllor's  Lien,  .see  Vendor  and 
Purchaser,  II. 

Service  on  Ph'dgeor  of,  .see  Writ  a,;d  Pro- 
cess, 50. 


L  Nature;    Requisites   and   Validity, 
a.  In  GeneraL 

Nature  of  Check,  see  Checks,  1,  2. 

Time  of  Taking  Effect  of  Note  Given  in 
Settlement,  see  Compromise  and  Set- 
tlement,  17. 

Preliminary  Proof  of  Execution,  see  Evi- 
dence, 815. 

Fpr  Editorial  Notes,  see  infra,  VII.  §  3. 

1.  The  terms  of  a  note  may  be  modified 
and  controlled  by  an  accompanying  mort- 
gage. Brooke  v.  Struthers,  110  Mich.  562, 
68  N.  W.  272,  35:  536 

2.  A  promissory  note,  and  a  contemporan- 
eous written  agreement  referring  thereto 
and  providing  that  the  maker  may  receive 
back  the  note  on  surrendering  certain  stock, 
constitute  an  entire  contract  the  stipula- 
tions of  which  are  mutual  and  dependent, 
rather  than  independent  and  collateral. 
American  Gas  &  V.  M.  Co.  v.  Wood,  90  Me. 
516,  38  Atl.  548,  43:  449 

3.  A  stipulation  on  the  face  of  a  promis- 
sory note  that  it  is  given  to  secure  the 
payment  of  a  church  debt  does  not  make 
the  instrument  a  contract  of  guaranty  on 
which  liability  is  contingent  on  default  of 
the  principal  debtor.  Clanin  v.  Esterly  Har- 
vesting-Mach.  Co.  118  Ind.  372,  21  N.  E. 
35,  3:  863 

4.  A  payee  who  knows  of  the  facts  in- 
volved has  no  better  right  to  enforce  drafts 
drawn  by  his  secret  agent  than  the  latter 
had  to  claim  the  fund  drawn  upon.  Balti- 
more Trust  &  G.  Co.  v.  Hambleton,  84  Md. 
456,  36  Atl.  597,  40:  217 

5.  That  a  draft  is  to  the  knowledge  of 
the  payee  drawn  by  the  agent  of  the 
drawee  to  pay  the  latter's  debt  will  not  re- 
lieve the  drawer  from  personal  liability 
thereon  if  he  directs  the  amount  to  be 
charged  to  his  account.  Citizens'  Bank  v. 
Millett,  103  Ky.  1,  44  S.  W.  366,      44:  664 

6.  The  execution  of  a  renewal  note  in  con- 
sideration of  the  surrender  of  one  upon 
which  the  signer  was  liable  as  surety  will 
bind  him  as  principal,  as  between  himself 
and  the  payee.  Garrigue  v.  Keller,  164  Ind. 
676,  74  N.  E.  523,  6T:  870 

7.  A  dunlicate  draft  given  by  the  drawer 
of  one  which  has  been  lost  does  not,  as  a 
matter  of  law,  import  a  promise  to  pay  the 
draft  or  waive  a  defense  to  liability  there- 
on, where  it  was  done  to  accommodate  the 
payee  and  enable  him  to  collect  the  money 
from  the  drawee.  Bank  of  Gilby  v.  Farns- 
worth,  7  N,  D.  6,  72  N.  W.  901,  38:  843 
What  are. 

Certificates  of  Stock  as  Negotiable  Instru- 
ments,  see   Corporations,  397,  398. 
See  also  infra.  59. 
For  Editorial  Notes,  see  infra,  VTT,  §  2. 

8.  The  fact  that  the  bank  at  which  a  note 
is  made  payable  is  itself  the  payee  does 
not  tnke  the  note  out  of  the  operation  of  a 
statute  which  makes  notes  payable  to  or- 
der at  banks,  within  the  state  inland  bills 
of  exfhancre.  De  Pauw  v.  Bank  of  Salem. 
126  Ind.   .5.53,  25  N.  E.  705,  10:  46 

9.  That  an  instrument  may  be  a  promis- 


BILLS  AND  NOTES,  I.  b. 


351 


sory  note  it  must  contain  on  its  face  an  ex- 
press promise  to  pay  money.  Hence  an  in- 
utrument  in  the  following  form:  "L  O.  U. 
the  sum  of  $17.05  for  value  received," 
signed  by  the  maker,  is  not  a  promissory 
note.  Gay  v.  Kooke,  151  Mass.  115,  23  N. 
E.  835,"  7:  392 

10.  A  draft  for  money  drawn  on  a  bank, 
payable  at  a  day  subsequent  to  its  date  and 
to  the  date  of  its  issue,  is  not  a  "cheek," 
but  is  a  "bill  of  exchange"  and  entitled  to 
grace.  Harrison  v.  Nicollet  Nat.  Bank,  41 
.Minn.  488,  43  N.  W.  336,  5:  746 
Note  payable  to  fictitious  person. 

For  Editorial  Notes,  see  infra,  VII.  §  4. 

11.  The  rule  that  a  negotiable  instrument 
made  payable  to  a  fictitious  person  or  order 
is,  in  effect,  an  instrument  payable  to  bear- 
er, applies  only  where  it  is  so  made  with 
the  knowledge  of  the  party  making  it,  and 
does  not  apply  where  the  malvsr.  supposing 
the  payee  to  be  a  real  person,  and  intending 
payment  to  be  made  to  such  person  or  his 
order,  is  induced  by  the  fraud  of  another 
to  draw  it.  Armstrong  v.  Pomerov  Nat. 
Bank,  46  Ohio  St.  512,  22  N.  E.  866,'  6:  625 

12.  A  negotiable  paper  note  made  payable 
to  a  fictitious  person  and  negotiated  by  the 
maker,  which  is  given  the  same  validity  as 
against  the  maker  and  all  persons  having 
knowledge  of  the  facts  as  if  payable  to  bear- 
er, by  N.  Y.  Rev.  Stat.  768."  §  5,  includes 
only  paper  made  with  knowledge  that  the 
payee  is  fictitious,  and  does  not  include  pa- 
per made  by  one  who  supposes  the  payee  to 
be  a  real  person,  and  which  is  fraudulently 
negotiated  by  a  third  person  without  the 
maker's  fault.  Shipman  v.  Bank  of  the 
Bank  of  New  York,  126  N.  Y.  318.  27  N.  E. 
371,  12:  791 
Memorandum  on. 

13.  A  statement  upon  the  face  of  a  prom- 
issory note,  that  it  is  given  for  advance- 
ments, may  be  regarded  as  a  mere  memo- 
randum not  chantrinof  the  contract,  and  is 
immaterial.  Citizens'  Nat.  Bank  v.  Piollet. 
126  Pa.  194,  17  Atl.  603,  4:  190 

14.  A  condition  or  memorandum  written 
in  or  indorsed  on  a  promissory  note  by  the 
maker  prior  to  its  delivery  is  a  substantive 
part  of  such  note.  Snecht  v.  Beindorff.  56 
Neb.  553,  76  N.  W.  1059,  42:  429 

b.  Validity  Generally:    Delivery. 

Validity  as  to  Transferee,  see  infra,  V.   a. 
Validity  of  Provision   for  Attorneys'  Fees, 

see  Attorneys'   Fees,  9-13. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

35-40. 
Given  for  Money  to  Use  in  Cotton  Specula- 
tion, see  Contracts,  530. 
Effect  of  Provision  against  Payment  with 

Money    Borrowed    from  Third    Person, 

see  Contracts.  437,  438. 
Note  by  Indian,   see  Indians,  2. 
By  Incompetent    Person,    see    Incompetent 

Persons,   12,   13. 
By  Infant  fo.r  Necessaries,  see  Infants,  64. 
By  Insolvent  Firm,  see  Partnership,  68,  69. 
To  Withdrawing  Member  of  Insolvent  Firm, 

see  Partnership,  50. 
For  Editorial  Notes,  see  infra,  VII.  §  7. 


15.  A  note  given  as  a  forfeit  in  case  of 
the  nonperformance  of  a  parol  contract  for 
the  sale  of  land  void  under  the  statute  of 
frauds  is  itself  void.  Kraak  v.  Fries.  21  D. 
C.  100,  18:  142 
Certainty  as  to  maturity. 

Effect,  on  Negotiability,  see  infra,  63-70. 

16.  A  note  is  not  invalid  because  it  prom- 
ises to  pav  "on  or  before"  a  named  date. 
Miller  v.  Western  College,  177  111.  280,  52 
N.  E.  432,  42:  797 

17.  The  fact  that  a  note  is  to  become  due 
in  the  event  of  the  death  of  the  maker  be- 
fore the  date  of  its  maturity  does  not  in- 
validate it.  Id. 

18.  A  note  payable  "thirty  days  after 
death"  mav  be  a  valid  instrument.  Carn- 
wright  V.  Gray,  127  N.  Y.  92.  27  N.  E.  835, 

12:  845 
Note  making  gift  to  college. 

19.  A  provision  in  a  promissory  note 
makintr  a  gift  to  a  college,  that  it  is  to  be 
used  for  a  specifie  purpose,  does  not  make 
the  note  invalid.  Miller  v.  Western  Col- 
lege. 177  111.  280,  52  N.  E.  432.  42:  797 
By  intoxicated  person. 

20.  A  note  is  not  rendered  void  by  the 
fact  that  at  the  time  of  signing  it  the  mnk- 
er  is  voluntarily  intoxicated,  merely  to  the 
extent  that  he  cannot  give  proper  atten- 
tion to  it,  that  attention  that  a,  reasonably 
prudent  man  wouM  be  able  to  giv«.  Wright 
v.  Waller,  127  Ala.  557,  29  So.  57.  54:  440 
Payable  to  "estate"  of  a  deceased  nerson. 

21.  A  note  payable  to  "the  estate"  of  a 
certain  person  decensed,  or  order,  is  not  in- 
valid as  a  promissory  note  for  want  of  a 
sufficiently  definite  pavee.  Shaw  v.  Smith, 
150  Mass.*  166,  22  N.  E..  887.  6:  348 
Against  public  policy;  wageri"<r  contract. 
For  Editorial  Notes,  see  infra.  VTT.  §  7. 

22.  A  note  for  benefits  and  advantages  re- 
ceived or  expected  to  be  received  by  a  mem- 
ber of  an  association  under  the  provisions 
and  by-laws,  which  are  contrary  to  public 
policy,  cannot  be  enforced  by  the  associa- 
tion against  the  maker.  Milwaukee  Masons' 
&  B.  Asso.  V.  Niezerowski,  95  Wis.  129,  70 
N.  W.  166,  37:  127 

23.  A  note  given  to  reimburse  a  surety 
on  a  fidelity  bond  for  what  it  has  been  com- 
pelled to  pay  because  of  the  principal's  em- 
bezzlement, on  condition  that  the  surety 
would  not  prosecute  the  principal  for  the 
defalcation,  is  void.  United  States  Fidelity 
&  G.  Co.  V.  Charles,  131  Ala.  658,  31  So. 
558,  57:212 

24.  A  note  given  in  consideration  of  con- 
cealing from  the  maker's  wife  and  from  the 
public  his  criminal  intimacy  with  another 
woman  cannot  be  enforced.  Case  v.  Smith, 
107    Mich.   416,    65   N.    W.   279,         31:282 

25.  A  promissory  note  payable  in  the 
event  of  election  to  an  office  is  A'oid  on 
grounds  of  public  policy  as  a  wagerine  con- 
tract. Specht  V.  Beindorff,  56  Neb.  553,  76 
N.   W.    1059,  42:  429 

26.  In  the  absence  of  a  statute  in  direct 
terms  prohibiting  speculative  or  wager  con- 
tracts and  declaring  them  unlawful,  or  ex 
pressly  declaring  promissory  notes  growing 
out  of  such  transactions  invalid,  to  make 


253 


BILLS  AND  NOTES,  L    c. 


such  notes  invalid  in  the  hands  of  one  who 
advanced  money  thereon  to  be  used' in  such 
transactions,  it  is  not  enough  to  show  that 
the  lender  knew  the  borrower's  purpose; 
there  must  also  be  a  participation  in  the  il- 
legal or  immoral  purpose.  Sondheim  v.  Gil- 
l)ert,  117  Ind.  71,  18  N.  E.  687,  5:  432 

Note  for  patent  right. 
Requiring  Statement  as  to,  on  Face  of  Note, 

see  Constitutional  Law,  363. 
Police  Power  as  to,  see  Constitutional  Law, 

953. 
See  also  Patents,   17,  18. 

27.  The  statute  requiring  that  promissory 
notes  executed  for  a  patent  right,  or  rights 
claimed  to  be  a  patent  right,  shall  contain 
the  Avords  "given  for  a  patent  right,"  does 
not  apply  to  notes  given  for  articles  manu- 
factured under  a  patent.  Hankey  v.  Down- 
ey, 116  Ind.  118,  18  N.  E.  271,  1 :  447 

28.  The  rights  of  the  owner  of  a  patent 
under  laws  of  the  United  States  are  not  in- 
fringed by  a  state  statute  applicable  to  the 
sale  of  patent  rights  requiring  the  words 
"peddler's  note"  to  be  written  across  the 
face  of  all  notes  executed  for  articles  sold 
by  a  peddler  or  itinerant  person.  Union 
Nat.  Bank  v.  Brown,  101  Kv.  354,  41  S. 
W.  273,  38:  503 
Delivery. 

Delivery  in  Escrow,  see  Escrow,  5-7. 
Evidence    of   Declarations    as   to,    see    Evi- 
dence,  1592, 
In  Case  of  Gift,  see  Gift,  43,  51,  56. 
For  Editorial  Notes,  see  infra,  VII.  §§  6,  7. 
2!).  A  conditional  delivery  of  a  promissory 
note  to  the  payee  or  the  agent  of  the  payee 
cannot  be  made  so  as  to  make  the  subse- 
quent   signature    of    another    person    essen- 
lial  to  its  validitv.     Hurt  v.  Ford,  142  Mo. 
28.3,  44   S.   W.  228,  41:  823 

30.  A  promissory  note  is  not  delivered  so 
Ihat  it  can  become  valid,  even  in  the  hands 
of  a  bona  fide  ])urchaser.  where  the  maker 
signs  his  name  to  it  through  fear  of  violence, 
and  it  is  snatched  up  as  soon  as  signed,  and 
carried  awav  against  his  Avill.  Palmer  v. 
Poor,   121   Ind.   1.35,  22  N.   E.   984,       6:  469 

31.  Notes  placed  by  the  maker  in  the 
hands  of  another  person,  with  directions  to 
hand  them  when  called  for,  to  a  board  of 
(Mliieation  to  which  they  were  made  payable, 
arc  snlficiontly  delivered.  Kansas  City 
School  Dist.  v!  Stocking,  138  Mo.  672,  40 
S.  \V.  656,  37 :  406 

.32.  A  non-negotiable  note  intended  to  be 
given  a  manufacturing  corporation  in  pay- 
ment for  machinery,  bnt  in  terms  payable  to 
a  bank,  is  not  rendered  void  for  want  of  de- 
livery l)y  tiie  fact  that  it  was  sent  to  a 
person  who  Wiis  an  ofTicer  of  such  corpora- 
lion  and  tlie  bank,  and  by  him  deposited 
witli  tlie  latter  as  collateral  security  for 
overdrafts  by  the  manufacturing  corpora- 
lion,  under  an  :igreement  between  the  two 
corporations  by  which  the  bank  was  to  take 
all  notes  of  the  other,  since  the  bank  acts 
as  ajjent  of  the  nianuf{icturin<r  corporation. 
Stockton  Sav.  A-  T>.  Soc.  v.  Giddings.  06  Cal. 
84.    10   Pac.    1016.  21:  406 


c.  Consideration. 

Failure  of,  as  Defense,  see  infra,  291-295. 
Consideration    of    Contracts    Generally,    see 

Contracts,    I.    c. 
Pi-esumption    and   Burden   of   Proof   as   to^ 

see  Evidence,  675,  676. 
Parol  Evidence  as  to,  see  Evidence,  1155- 

1158. 
For  Editorial  Notes,  see  infra,  VII.  §  9. 

33.  A  note  by  a  stockholder,  director,  and 
creditor  of  a  corporation,  given  to  the  mak- 
er of  an  accommodation  note  which  the 
corporation  had  received  the  benefit  of  in 
consideration  of  money  furnished  by  the^ 
maker  of  the  accommodation  note  to  pay 
it,  is  not  without  consideration  although  the 
payee  was  bound  to  take  up  the  other  note- 
Ablxjtt  v.  Doane,  163  Mass.  433,  40  N.  E. 
197,  34:  3$ 

34.  The  expenditure  of  a  considerable- 
sum  in  holding  an  election  by  a  school  dis- 
trict and  the  incvuring  of  a  valid  indebt- 
edness for  a  large  amount  by  the  issue  of 
bonds  voted  at  the  election  to  secure  money 
for  the  erection  of  a  library  building,  will 
constitute  a  sufficient  consideration  for  a 
promissory  note  to  the  district  which  the 
maker  intended  should  go  for  the  purchase 
of  a  site  for  the  building  but  which  he  con-  v 
sented  might  l)e  used  as  the  Iward  should 
deem  best  in  aid  of  the  enterprise.  Kansas-' 
Citv  School  Dist.  v.  Stocking,  138  Mo.  672,. 
40  S.  W.  656,  37 :  406; 
Necessity  of  expressing. 

35.  A  promissory  note,  although  non-ne- 
gotiable, need  not  express  any  considera- 
tion.  Carnwright  v.  Grav,  127  N.  Y.  92,  27 
N.  E.  835,  *  12:  84.S 
To  enable  payee  to  cease  work. 

36.  A  promissory  note  given  to  enable  the 
payee  to  cease  work,  but  without  any  con- 
dition imposed  or  promise  exacted,  is  with- 
out consideration.  Ricketts  v.  Scothorn,  57 
Neb.  51,  77  N.  W.  36."),  42:  794 
Debt  due  from  drawee. 

37.  The  existence  of  a  debt  due  by  the 
drawee  of  a  bill  of  exchange  to  the  payee 
is  a  sufficient  consideration  to  bind  the 
drawer  upon  his  promise  to  pay  the  bill, 
and  render  him  liable  for  the  amount,  al- 
though he  was  a  stranger  to  the  debt. 
Citizens'  Bank  v.  Millett.  103  Ky.  I,  44  S. 
W.  366.  44:664 
Invalid  foreign  patent. 

38.  An  English  patent,  if  regular  in  form* 
and  in  existence  as  a  document  is,  by  force 
of  the  Englisli  decisions,  sufficient  consid- 
eration to  support  a  promissory  note  made 
in  .Massachusetts,  even  although  the  pat- 
ent is  in  fact  invalid  for  want  of  novelty, 
and  notwithstanding  the  fact  that,  under  the 
Massachusetts  decisions,  a  note  given  for  are 
invalid  United  States  patent  is  withoutcon- 
sidoration.  Chemical  Electric  Light  &  P.< 
Co.  V.  Howard,  148  Mass.  352.  20  N.''E.  92, 

2:  16» 
Parol  antenuptial  agreement. 

.39.  A  parol  antenuptial  agreement  which 
is  void  under  the  statute  of  frauds  wilt 
not  support  a  promissory  note  given  by  the 


BILLS  AND  NOTES,  L  d,  1. 


253 


husband  to  his  wife  after  marriage.  Rich- 
ardson V.  Richardson,  148  111.  503.  36  N. 
E.  G08,  26:  305 

Uote  for  amount  of  subscription. 
See  also  supra,  34. ' 

40.  A  sufficient  consideration  for  a  prom- 
issory note  executed  to  an  incorporated  col- 
lege is  the  accomplishment  ot  the  purposes 
for  which  it  is  incorporated  and  'in  whose 
aid  the  note  is  executed, — at  least  after  the 
corporation  has  been  encouraged  thereby  to 
expend  money  and  incur  obligations  in  car- 
rying out  its  purposes.  Irwin  v.  Webster, 
56  Ohio  St.  y,  46  A'.  E.  63,  36:  239 

41.  A  promissory  note  payable  at  a  future 
day  to  an  incorporated  charitable  education- 
al institution,  dependent  for  the  most  part 
on  voluntary  contributions  for  its  support, 
the  amount  thereof  to  form,  by  itself,  or 
■with  other  similar  ctrntributions,  a  perma- 
7)€nt  endowment  fund  for  sucT*  institution, 
■which  is  accepted  by  the  board  of  direct- 
ors, in  reliance  upon  which  and  other  simi- 
lar donations  such  institution  continues  its 
work  and  incurs  debts  and  obligations,  and 
solicits  subscriptions  from  others,  all  of 
which  is  known  to  the  maker  of  the  note, — 
33  supported  by  a  sufficient  consideration, 
and  it  not  revoked  by  the  maker's  death  be- 
fore its  maturitv.  Albert  Lea  College  v. 
Brown.  88  Minn.' 524,  93  N.  W.  672,  60:  870 
Compromise   of   disputed   claim. 

See  also  infra..  210-212. 

42.  A  note  given  in  compromise  or  set- 
tlement of  a  disputed  claim  the  validity  of 
■which  is  doubtful  is  supported  by  a  suffi- 
cient consideration.  French  v.  French,  84 
Iowa,  655,  51  X.  W.  145,  15:  300 
Substituted  note;    extension. 

43.  Indulgence  to  a  debtor  by  extending 
the  time  for  payment  for  a  certain  period 
is  a  valuable  consideration  for  a  note  for  the 
«ame  debt,  as  against  a  surety  on  the  note. 
Fowler  v.  Allen,  32  S.  C.  229,  10  S.  E.  947, 

7:745 

44.  A  note  given  in  part  satisfaction  of  a 
""red  line  wheat  note"  which  was  void  for 
fraud  and  failure  of  consideration  is,  if  un- 
supported by  any  other  c<5nsideration,  itself 
void  in  the  hands  of  the  original  payee,  or 
of  an  indorsee  with  notice.  Hunt  v.  Rum- 
«ey,  S3  Mich.  136,  47  N.  W.  105,  9:  674 
On  ratification  of  altered  note. 

45.  No  new  consideration  is  necessary  in 
order  to  make  valid  a  ratification  of  a 
note  by  one  who  was  entitled  to  his  release 
therefrom  because  of  an  alteration.  Mont- 
gomerv  v.  Crosthwait,  90  Ala.  553.  8  So. 
498,     '  12:  140 

d.  Negotiability. 

1.  General. 

Of  Note  Discounted   bv  Bank,  see  Banks, 

280,  281. 
Of    Savings    Bank   Pass   Book,    see   Banks, 

367. 
Of  Order  on  Savings  Bank,  see  Banks,  362, 

363. 
Of  Certificate  of  Deposit,  see  Banks,   183- 

186. 


Of  Checks,  see  Checks,  3-5. 

Of  Corporate  Bonds,  see  Bonds,  98-100. 

Of  Stock  Certificate,  see  Corporations,  397, 

398. 
Of  County  Warrant,  see  Counties,  55. 
Of  Interest  Coupons,  see  Coupons,  4-7. 
Of  Warehouse  Receipts,  see  Warehousemen, 

20,  21. 
Test   of,   for  Jurisdictional     Purposes,    see 

Courts,  345b. 
Evidence  as  to,  see  Evidence,  977. 
For  Editorial  Notes,  see  infra,  VII.  §  10. 

46.  The  provisions  of  a  mortgage  secur- 
ing a  contemporaneous  note,  which  merely 
relate  to  the  preservation  of  the  security, 
are  not  made  a  part  of  it  so  as  to  destroy 
its  negotiability  by  the  rule  that  contem- 
poraneous instniments  relating  to  the  same 
subject-matter  are  to  be  construed  together. 
Thorpe  v.  Mindeman,  123  Wis.  146,  lOl  N. 
W.  417,  68:  146 

47.  A  statement  or  recital  in  a  note  that 
it  is  given,  for  the  privilege  of  hanging  ad- 
vertising signs  in  street  cars  for  three 
months  from  a  certain  subsequent  date  will 
not  destrov  its  negotiability.  Siegel  v.  Chi- 
cago Trust  &  Sav.  Bank,  131  III.  569,  23  N. 
E.  417,  7:537 

48.  The  negotiability  of  a  note  is  not  de- 
stroyed by  a  clause  stating  that  it  is  given 
for  certain  property  the  title  to  which  shall 
not  pass  until  the  note  is  paid,  and  which 
is  subject  to  be  retaken  in  case  of  nonpay- 
ment of  the  note.  Choate  v.  Stevens,  116 
Mich.  28,  74  N.  W.  289,  43:  277 

49.  A  condition  in  a  promissory  note,  that 
if  it  is  not  paid  when  due  the  property  de- 
scribed therein  for  which  it  is  given  shall  be- 
long to  the  payee,  destroys  the  character  of 
the  instrument  as  a  promissory  note,  and 
reduces  it  to  a  mere  contract.  Wright  v. 
Traver.  73  :\Iich.  493,  41  N.  W.  517,  3:  50 
Effect  of  blanks. 

50.  Blanks  in  the  body  of  a  note  where  the 
amount  and  place  of  payment  should  be 
named  will  not  render  the  note  non-negotia- 
able,  if  the  amount  is  expressed  in  figures  at 
the  head  of  the  note,- — especially  under  a 
statute  making  negotiable  any  written 
promise  to  paj'  money,  which  is  signed  by 
the  promisor.  Wittv  v.  Michigan  Mut.  L. 
Ins.  Co.  123  Ind.  41 L  24  N.  E.  141,  8:  365 
Certainty  as  to  parties. 

51.  Certainty  as  to  the  payor  and  payee, 
the  amount  to  be  paid,  and  the  terms  of  pay- 
ment, is  the  essential  quality  of  a  negotia- 
ble promissory  note:  and  that  certainty 
must  continue  until  the  obligation  is  dis- 
charged. Ilegeler  v.  Comstock,  1  S.  D.  138. 
45  N.  W.  331,  8:  393 

52.  A  note  payable  to  i  certain  person 
"et  a}.,  or  order,"  is  not  negotiable,  because 
of  uncertainty  as  to  the  unnamed  payees. 
This  rule  is  not  changed  by  Iowa  Code,  § 
2085,  making  an  instrument  promising  to 
pay  money  or  property  to  another  negotia- 
able  if  such  is  the  manifest  intent  of  the 
maker.  Gordon  v.  Anderson,  83  Iowa,  224, 
49  N.  W.  86,  12:  483 

53.  A  note  containing  no  name  of  a  payee, 
nor   space   to   insert   it,   is  not   negotiabl*. 


254 


BILLS  AND  NOTES.  L  d,  2. 


Smith  V.  Willing,  123  Wis.  377,  101  N.  W. 
692,  68:  940 

54.  Incorporating  a  power  of  attorney  to 
confess  judgment  in  favor  of  the  holder,  in 
a  note  in  which  the  name  of  the  payee  is 
not  mentioned,  does  not  render  the  paper 
negotiable  by  making  it  payable  to  holder. 

Id. 
Adding  word  "trustee"  to  payee's  name. 
For  Editorial  Notes  see  infra  VII.   §   10. 

55.  The  addition  of  the  word  "trustee"  to 
the  name  of  the  payee  of  a  note  does  not  de- 
stroy its  negotiability.  Central  State  Bank 
V.    Spurlin,   111  Iowa,   187,    82  N.  W.  493, 

49:  661 

56.  The  addition  of  the  word  "trustee"  to 
the  name  of  the  payee  of  a  note  does  not  de- 
stroy its  negotiability.  Fox  v.  Citizens' 
Bank  &  T.  Co.  (Tenn.  Ch.  App.)  37  S.  W. 
1102,  35:  678 
Seal. 

For  Editorial  Notes,  see  infra,  VII.  §  10. 

57.  The  negotiability  of  a  note  given  by 
the  treasurer  of  a  limited  partnership,  is 
not  destroyed  by  a  device  stamped  upon  it 
purporting  to  be  the  seal  of  the  association, 
which  has  no  common  seal,  and  did  not  au- 
thorize any  seal  to  be  affixed  to  the  note. 
Stevens  v.  Philadelphia  Ball  Club,  142  Pa. 
52,  21    Atl.  797,  11:  860 

58.  A  corporate  seal  does  not  destroy  the 
negotiability  of  the  commercial  paper  of  a 
corporation  which  is  negotiable  in  form, 
aiase  Nat.  Bank  v.  Faurot,  149  N.  Y.  532, 
44   N.    E.    164,  35:  605 

59.  An  instrument  in  the  form  of  a  ne- 
gotiable promissory  note,  but  with  a  scroll 
in  whifli  the  word  "seal"  is  written  after 
the  signature  of  the  maker,  is  a  sealed  in- 
fitrumert  in  Oregon,  and  not  a  negotiable 
note.  tlKHiirh  there  is  no  reference  to  a  seal 
in  the  body  of  the  instrument.  D.  M.  Os- 
borne &  Co.  v.  Hubbard,  20  Or.  318.  25  Pac. 
1021,  11:833 
Payment  dependent  on  election. 

See  also  supra,  25. 

60.  A  note  payable  at  a  certain  time  if 
the  maker  is  elected  to  a  certain  office  is 
not  a  negotiable  instrument.  Specht  v. 
BeindorfT,   56   Neb.     553,     76    N     W.     1059. 

42:  429 
Indorsements  of  payments. 
For   Editorial    Notes,   see    infra,   VII.    §    10. 

61.  Payments  indorsed  on  the  back  of  a 
note  before  its  transfer  by  the  payee  do 
not  destroy  its  negotiability.  Farmers' 
Bank  v.  Shipper,  182  Pa.     24,  .37  Atl.  844. 

38:  823 
Guaranty  of  payment. 

62.  An  unrestricted  jruaranty  of  payment 
indorsed  on  a  negotiable  instrument  is  ne- 
gotiable, and  passes  with  the  title  to  the 
in.stntnient.  Commercial  Bank  v.  Ciieshire 
Provident  Institution,  .59  Kan.  361,  53  Pac. 
131,  41:175 

2.  Certninty   as   to   Maturity   and   Amount. 

Certainty  as  to  maturity. 

Effect  on   Validity,  see  supra,   16-18. 

For  Editorial  Notes,  see  infra,  VII.  §  10. 

63.  Making  a  note  payable  "on  or  before'' 


a  certain  fixed  future  date  will  not  make 
the  time  of  payment  so  uncertain  as  to  de- 
stroy the  negotiability  of  the  note.  First 
Nat.  Bank  v.  Skeen,  101  Mo.  683,  14  S.  W. 
732,  11:748 

64.  A  promissory  note,  on  the  face  of 
which,  across  one  end,  is  written  an  agree- 
ment that  the  note  will  be  renewed  at  ma- 
turity, is  not  negotiable.  Citizens'  Nat. 
Bank  v.   Piollet,   126  Pa.   194,   17  Atl.   603. 

4:  190 

65.  An  option  indorsed  upon  the  back  of 
a  negotiable  note  for  its  extension  for  a  defi- 
nite  time,  by  giving  a  new  note  at  the  op- 
tion of  the  makers  and  indorsers  similar  to 
the  original,  does  not  destroy  its  negotia- 
bilitv.  xYnniston  Loan  <fe  T.  Co.  v.  Stickney. 
108  Ala.   146,  19  So.  63,  31:  234 

68.  A  note  for  the  payment  of  a  certain 
3um  at  a  fixed  date  is  not  rendered  non- 
negotiable  by  a  stipulation  that,  upon  de- 
fault in  the  paj'ment  of  interest,  the  whole 
amount  shall  become  due,  at  the  option  of 
the  holder,  and  then  draw  a  greater  rate  of 
interest.  Clark  v.  Skeen,  61  Kan.  526,60 
Pac.  327,  49:  190 

67.  An  option  in  a  note  to  declare  the 
whole  amount  due  upon  default  in  payment 
of  an  instalment  does  not  render  the  note 
non-negotiable.  Wilson  v.  Campbell,  110 
Mich.   580,   68   N.   W.   278,  35:  544 

68.  A  provision  in  a  mortgage  securing 
a  promissory  note  requiring  the  mortgagor 
to  pay  taxes  and  assessments  for  default  of 
which  the  whole  debt  may  be  declared  im- 
mediately payable  does  not-  make  the  note 
non -negotiable.  Id; 

69.  A  provision  of  a  note  making  the  prin- 
cipal due,  at  the  option  of  the  payee,  upon 
failure  to  comply  with  certain  provisions  of 
the  accompanying  mortgage,  looking  to  the 
preservation  of  the  security  does  not  de- 
stroy the  negotiability  of  the  note,  under 
a  statute  providing  that  an  instrument  ia 
payable  at  a  determinate  future  time  when 
it  is  payable  at  a  fixed  period,  though  pay- 
able before  then  on  a  contingency.  Thorpe 
V.  Mindeman,  123  Wis.  146,  101  N.  W.  417. 

68:  146 

70.  A  provision  in  a  mortgage  securing, 
and  referred  to  in,  a  note  otherwise  negoti- 
able, that  the  mortgagor  shall  pay  taxes 
and  assessments,  and  that  failure  to  do  so 
for  thirty  days  shall  render  the  whole  debt, 
principal  and  interest,  immediately  due,  de- 
stroys the  negotiability  of  the  instrument. 
Brooke  v.  Struthers.  110  Mich.  .562.  68  N. 
W.  272,  35:  536 
Certainty  as  to  amount  generally. 

In  Certificate  of  Deposit,  see  Bfink.s,  184. 

See  also  supra,  51,  66. 

For  Editorial  Notes,  see  infra,  VII.  §  10. 

71.  To  render  a  note  negotiable  under  the 
law  merchant,  the  amount  to  be  paid  at 
maturity  must  be  ascertainable  by  the  face 
of  the  note,  Avithout  res-irt  to  evidence  de- 
horn the  instrument.  Windsor  Sav.  Bank 
V.  :\rc^ra1ion,  38  Fed.  283,  3:  192 

72.  Statutes  providing  that  negotiable 
notes  should  be  for  "any  sum  of  money,"  or 
for  "a  sum  of  money  in  property  or  labor." 
do  not  change  the  common-law  rule  as  to 


BILLS  AND  NOTES,  I.  d,  2. 


255 


the  certainty  of  amount.    Culbertson  v.  Nel- 
son, 03  Iowa,  187,  61  N.  W.  854,       27:222 

73.  A  provision  in  a  mortgage  securing 
a  note,  that  insurance  premiums  paid  by  the 
mortgagee  shall  constitute  a  lien,  added  to 
the  note,  does  not  alter  the  amount  of  the 
note  so  as  to  destroy  its  negotiability,  but 
■merely  provides  for  a  lien  on  the  property 
in  addition  to  the  amount  called  for  by  the 
note.  Thorpe  v.  Alindeman,  123  Wis.  146, 
101   N.  W.  417,  68:  146 

74.  Expressing  in  Mexican  silver  dollars 
the  sum  due  on  a  promissory  note  does  not 
affect  the  negotiability  of  the  note.  Hogue 
V.  Williamson,  85  Tex.  553,  22  S.  W.  580. 

20:  481 

75.  The  negotiability  of  a  note  with  ac- 
companying interest  coupons  is  not  de- 
stroyed by  clauses  declaring  that  the  con- 
tract shall  be  construed  by  the  laws  of  the 
state  in  which  it  is  executed,  tljat  it  shall 
draw  a  specified  higher  rate  of  interest  after 
maturity,  and  that  if  any  coupon  is  not 
paid, when  due  the  whole  debt  shall  mature 
at  that  time  without  demand,  and  the  first 
unpaid  coupon  shall  become  a  part  of  the 
principal  and  bear  interest  at  the  higher 
rate  specified.  DeHass  v.  Dibert,  28  U.  S. 
App.  559,  17  C.  C.  A.  79,  70  Fed.  227,  30:  183 

76.  Legislation  passed  after ,  the  making 
of  a  mortgage  securing  a  promissory  note 
which  relieves  the  mortgagor  of  a  portion 
of  the  burden  as  to  paj'ment  of  taxes,  and 
imposes  it  on  the  mortgagee,  will  not  make 
the  note  non-negotiable  if  it  is  otherwise 
negotiable.  Wilson  v.  Campbell,  110  Mich. 
580,  68  N.  W.  278,  35:  544 
Provision  for  exchange. 

For  Editorial  Notes,  see  infra,  VIT.  §  10. 

77.  A  note  made  payable  with  current  ex- 
change on  a  place  other  than  the  place  of 
payment  is  not,  by  that  fact,  made  non- 
negotiable.  Hastings  v.  Thompson,  54 
Minn.  184,  55  N.  W.  968,  21:  178 

78.  A  promissory  note  is  not  rendered 
non-negotiable  by  an  agreement  to  pay  the 
sum  named  "with  exchange"  on  a  point 
other  than  that  at  which  it  is  payable. 
Haslack  v.  Wolf,  66  .Neb.  600,  92  N.  W.  374, 

60:  434 

79.  A  stipulation,  in  an  instrument  for 
the  payment  of  a  certain  sum  of  money,  for 
payment  of  current  exchange  on  a  place 
other  than  the  place  of  payment,  is  not  de- 
structive of  negotiability.  Clark  v.  Skeen, 
(51  Kan.  526,  60  Pac.  327,"      ,  49:  190 

80.  The  words  "with  exchange,"  in  a 
draft,  destroys  its  negotiability.  Culbertson 
V.  Nelson,  93  Iowa,  187,  61  N.  W.  854, 

27:222 

81.  A  provision  for  the  payment  of  ex- 
change in  addition  to  principal  and  interest 
destroys  the  negotiability  of  an  instrument. 
Flagg  V.  Barnes  County  School  Dist.  No.  70, 
4  N.  D.  30,  58  N.  W.  499,  25:  363 

82.  A  clause  in  a  promissory  note  binding 
the  maker  to  pay  exchange  between  two 
places  renders  the  amount  payable  uncertain 
and  defeats  its  negotiability,  where  there  is 
no  fixed  rate  of  exchange  established  by  law 
or  bv  the  terms  of  the  note.  Windsor  Sav. 
Bank  ▼.  McMahon,  38  Fed.  283,  3:192 


Provision  for  attorneys'  fees. 

See  also  infra,  90- 

For  Evlitorial  Notes,  see  infra,  VTI.  §  10. 

83.  A  provision  in  a  bill  or  note  for  the 
payment  of  an  attorney's  fee  in  case  of  a 
suit  does  not  affect  the  negotiability  of  the 
instrument.  Bank  of  Commerce  v.  Fuqua, 
11   Mont.  285,  28  Pac.  291,  14:  588 

Montgomery  v.  Crosthwait,  90  Ala.  553. 
8   So.   498,  12:  140 

Contra,  Bowie  v.  Hall,  69  Md.  433,  16  At) 
64,  1:546 

84.  The  negotiability  of  a  note  is  not  de 
stroyed  by  an  agreement  to  pay  costs  of 
collection,  including  attorneys'  fees,  al 
though  Ga.  Civ.  Code,  §  3667,  provides  that 
such  agreements  shall  be  void  unless  a  plea 
be  filed  by  the  defendant  and  not  sustained. 
Jones  V.  Crawford,  107  Ga.  318,  33  S.  E.  51. 

45:  105 

85.  The  negotiability  of  a  note  is  not  <l< 
stroyed  by  a  stipulation  for  10  per  co;- 
attorney's  fee  to  be  recovered  as  part  of 
the  note  or  in  a  separate  suit,  if  the  note  i- 
not  paid  when  due,  and  suit  is  brought 
thereon.  Dorsey  v.  Wolff,  142  111.  589,  V/^ 
N.  E.  495,  18:  42K 

86.  A  note  is  not  rendered  non-negoti 
able  by  a  stipulation  for  the  payment  of  al 
torney's  fees,  which  is  entirely  inoperativ 
until  after  the  maturity  of  the  note  and  it  • 
dishonor  by  the  maker.  Oppenheimer  v 
Farmers'  &  M.  Bank,  97  Tenn.  19,  36  S.  W 
705,  33:  767 

87.  The  negotiability  of  a  bill  of  exchang 
is   not    defeated    by    a    .stipulation    for    a* 
torneys'  fees,  which  becomes  operative  onlv 
after     dishonor.      Farmers    Nat.    Bank    a  . 
Sutton  Mfg.  Co.  6  U.  S.  App.  312,  3  C.  C.A. 
1,  52  Fed.  191,  17:595 

88.  A  promissory  note  is  rendered  non 
negotiable  by  a  provision  for  attorneys' 
fees  in  addition  to  principal  and  interest  if 
it  is  collected  by  suit  or  placed  in  the  hands 
of  an  attorney  for  collection.  Sylvester 
Bleckley  Co.  v.*Alewine,  48  S.  C.  308,  26  S. 
E.  609,"  37:  86 

89.  A -provision  in  a  note  for  a  percentagf 
of  the  amount  due,  as  attorneys'  fees  "on 
suit  by  himself  or  an  attorney  employed,'* 
destroys  its  negotiability,  under  Cal.  Civ. 
Code,  §  3088,  providing  that  "negotiable 
instruments  must  be  without  any  condition 
not  certain  of  fulfilment."  Adams  v. 
Seaman,  82  Cal.  636,  23  Pac.  53,  7:  224 
Higher  rate  of  interest  after  maturity. 

90.  The  character  of  an  instrument  as  a 
promissory  note  is  not  destroyed  by  the  ad- 
dition to  the  promise  of  payment  of  clauses 
providing  for  additional  interest  after  ma- 
turity, and  for  payment  of  attorneys'  fees 
in  case  suit  is  necessary  to  collection. 
Cherry  v.  Sprague,  187  Mass.  113,  72  N.  E. 
456,  67:  33 

91.  The  negotiability  of  a  note  is  not  af- 
fected by  a  provision  for  a  higher  rate  of 
interest  after  maturitj',  or  by  a  clause  that 
upon  default  in  the  payment  of  interest  for 
ten  days  the  principal  sum  may,  at  the 
option  of  the  holder,  become  due.  Hollins- 
bead  v.  Globe  Invest.  Co.  8  N.  D.  35.  77  N. 
W.  80,  42:  65» 


256 


BILLS  AND  NOTES,  IL.  III.  a. 


92.  A  note  promising  to  pay  a  certain 
Slim,  ''with  interest  from  date  until  paid,  at 
the  rate  of  10  per  cent  per  annum,  8  per 
<ent  if  paid  when  due," — is  not  negotiable 
because  of  uncertainty  in  the  amount  to  be 
paid.  Ucgeler  v.  Comstock,  1  S.  D.  138,  45 
k  W.  ;i31,  8:  393 

Provision  for  discount. 

9:5.  A  stipulation  for  a  discount  of  12  per 
cent  if  a  note  is  paid  before  maturity  ren- 
<ler3  it  non-negotiable  because  of  the  un- 
certainty as  to  the  amount  to  be  paid. 
National  Bank  of  Commerce  v.  Feeney,  9 
S.  D.  5.50,  70  X.  W.  874,  12  S.  D.  156,  80  N. 
W.  186,  46:  732 

IL  Acceptance. 

Kflect  of  Cashier's  Promise  to  Pay  Draft, 
sec  Banks.  274. 

Acceptance  of  Check,  see  Banks,  125,  126. 

Acceptance  by  Loan  Association,  see  Build- 
ing and  Loan  Associations,  59. 

Exchange  as  Affecting  Duty  to  Accept,  see 
Contracts.  317. 

Consideration  for.  see  Contracts,  66. 

Statute  of  Frauds  as  to  Promise  for,  see 
Contracts,  137. 

See  also  infra,  '2(iti.  2t!7. 

For  Editorial  Notes,  see  infra,  VIL  §   12. 

93a.  Liability  on  a  written  promise  to  ac- 
oept  and  i)ay  an  order  of  another  for  a  cer- 
tain sum  is  not  created  by  the  latter's  in- 
dorsement on  sudi  writing,  without  draw- 
ing anv  order.  Allen  v.  I>eavens,  26  Or. 
ir>4,  37"Pac.  488,      ^  26:  620 

94.  A  telcfrram  stating  that  "Tate  is  good, 
fjend  on  your  paper," — sent  by  a  bank  in 
reply  to  an  incpiiry  as  to  whether  or  not  it 
would  pay  such  person's  check  for  a  certain 
amount,  constitutes  a  written  acceptance  of 
such  check  which  will  render  the  bank  lia- 
ble for  its  amount  to  a  holder  thereof  who 
was  sliown  the  telegram  and  took  the  check 
for  value  in  reliance  thereon.  Carrett- 
son  V.  North  Atchison  Bank.  39  Fed.  163. 

7:428 

!•.■>.  A  letter  from  one  expecting  a  consign- 
ment of  goods  for  sale  on  commission,  to  a 
bank,  stating  tliat  the  writer  will  honor  the 
consignor's  drafts  with  bill  of  lading  at- 
tached, nnist  be  read  in  the  light  of  a  usaufc 
of  trade  known  to  both  parties,  for  the 
consignor  to  draw  for  an  amount  not  ex- 
ceeding three  foiu'ths  of  the  value  of  tlie 
consigned  goods,  and  will  render  the  writer 
liable  onlv  for  sucli  aiiuMuit.  Fiske  v.  First 
Nat.  Bank,  i:):?  Pa.  -211.  10  Atl.  r>,-)4.  7:  209 
Contrihution  bv  acceptor  from  indorsers. 

90.  (^onfriliution  cannot  be  enforced  by  an 
aceomniodatioTi  acce])lor  against  subseouent 
accommodation  indorser-;  with  or  without 
knowledge  of  the  nature  of  the  accej)tance. 
Cillc^pic   V.  Ca.npbell.   .'59  Fed.  724.        5:  098 


III.    rndor-enuMit    and    Transfers 
a.  In  Ceneral. 
■For  niglits  of  Indorsees,  see  infra,  V. 


Bank   Discounting  Note   as   Purchaser,    se« 

Banks,  277-282. 
Bank  Cashier's  Power  to  Indorse,  see  Banks, 

37. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

42,  43. 
Writing  Contract   of  Guaranty  over  Blank 

Indorsement,  see  Contracts,  216. 
Of  Overdue  Notes  of  Corporation,  see  Cor- 
porations, 017. 
Power   of  Corporation   to   Indorse,   for  Ac- 
commodation, see  Corporations,  135. 
Following  State  Decisions  as  to,  see  Courts, 

548. 
Damages    for    Breach    of    Contract    not    to 

Transfer,  see  Damages,  104. 
Variance  in  Proof  of,  see  Evidence,  2399. 
Fraud  in  Inducing  Indorsement,  see  Fraud 

and  Deceit,  52,  54. 
Injunction  against  Transfer,  see  Injunction, 

70,  107. 
Admission   of  Genuineness  of  Indorsement, 

see  Pleading,  120. 
Indor.ser's  Rights,  as  to  Collateral  Security, 

see  Pledge  and  Collateral  Security,  41, 

42. 
Agent's   Authorit.v   to   Make,   see   Principal 

and  Agent,  32-39. 
Assignment   of   Purchase   Money   Note,   see 

Vendor  .and    Purchaser,   60,    61,    81-83, 

85. 
See  also  supra.  62:  infra,  263-268. 
For  Editorial  Notes,  see  infra,  VII.  §§   13- 

19. 

97.  One  who  writes  on  the  back  of  a  note 
an  assignment  with  a  guaranty  of  payment 
is  an  indorser.  ^laddox  v.  Duncan,  143  Mo. 
613.  45  S.  W.  688.  41:  581 
Rights   of   accommodation   indorser  paying 

note. 
See  also  supra,  96;  infra,  266,  267. 

98.  An  accommodation  indorser  of  a  ne- 
gotiable note  which  he  is  compelled  to  |>ay 
on  the  maker's  default  can  enforce  it  against 
the  maker  if  his  indorsement  was  made  in 
good  faith,  although  it  was  for  the  accommo- 
dation of  a  third  per.son,  and  although  after 
his  indorsement  he  may  have  learned  of  a 
failure  of  consideration.  Sheahan  v.  Davis, 
27  Or.  278.  40  Pac.  405,  28:  47« 
Warranty  of  genuineness  of  prior  signatures. 
Presumption     of     Drawee's     Knowledge     of 

Drawer's  Signature,  see  Banks,  141-145. 
Of  Prior  Indorsements  on  Checks,  see  Checks, 

49. 
For  Editorial  Notes,  see  infra,  VIL  §§  4,  17, 

18. 

99.  A  warranty  of  the  genuineness  of  a 
signature  to  a  promissory  note  arises  upon 
a  sale  and  a  delivery  thereof  to  a  purchaser 
in  goo<l  faith.  Strauss  v.  Hensev,  7  App.  D. 
C.  289.  '  36:  92 

100.  One  wlio,  at  the  request  of  the  prin- 
cipal fiel)tor.  places  his  name  as  surety  on  a 
note  after  tlie  signatures  of  several  makers, 
guarantees  tiie  geiuiineness  of  such  signa- 
tures to  an  innocent  pa.yee.  and  cannot  be  re- 
leased from  liability  on  the  ground  that  one 
signature  is  a  forgerv.  Wheeler  v.  Traders' 
Deposit  Bank,  107  Ky.  653,  55  S.  W.  .552. 

49:  315 


BILI  S  AND  NOTES,  III.  1).  1,  2. 


857 


101.  An  agent  of  one  who  made  a  note 
under  an  assumed  name,  who  pays  and  takes 
up  the  note  as  agent  of  the  maker,  although 
believing  him  to  be  the  person  he  assumed  to 
be,  cannot  recover  back  the  money  paid  on 
the  ground  that  the  holder  of  the  note  in 
transferring  it  to  him,  impliedly  warranted 
the  genuineness  of  the  signature.  Strauss  v. 
Hensey,  7  App.  D.  C.  289,  36:  92 
Liability  for  wrqngful  transfer. 

For  Editorial  Notes,  see  infra,  VII.  §  19. 

102.  The  transfer  of  a  negotiable  note,  by 
which  an  indorser  is  made  liable  to  a  bona 
fide  holder  for  the  ultimate  benefit  of  the 
transferrer,  who  knows  the  indorsement  is  [ 
ultra  vires  and  void,  makes  him  liable  to  ' 
such  indorser  for  the  damages  thereby  sus- 
tained. N  i^^hville  Lumber  Co.  v.  Fourth  Nat. 
Bank,  94  Tenn.  374,  29  S.  W.  368,        27:  519 

103.  A  widow  who,  after  her  husband's 
death,  negotiates  to  a  bona  fide  holder  a 
promissory  note  made  bj'  him  to  her  as  a 
gift,  may  be  compelled  to  refund  to  his  es- 
tate the  amount  which  it  is  compelled  to  pay 
on  the  note.  Richardson  v.  Richardson,  148 
111.  563,  36  N.  E.  608,  26:  305 

104.  Payees    of    a    negotiable   note   given 
for  the  purchase  price  of  property,  who  have 
transferred   it   before   maturity   to   a   bona 
fide  purchaser,  are  liable  to  the  makers  in  an 
action  for  the  amount  of  the  note,  where  the  : 
sale  has  been  rescinded  for  breach  of  war-  I 
ranty;  but  a  judgment  against  them  should  j 
not  be  enforced  until  they  are  relieved  of 
their    liability    as    indorsers    on    the    note. 
Baker  v.  Brem,  103  N.  C.  72,  9  S.  E.  629, 

4:370 

b.  Liability  of  Indorser. 
1.  In  General. 

Rights  of  Transferee  against  Indorser,  see 

infra,  V. 
Of  Sole  Stockholder,  see  Corporations,  548. 
Effect  of  Addina:  Word  "Surety"  to  Signa- 
ture, see  Banks,  180. 
Parol   Evidence  as  to,  see  Evidence,   1176, 

1179. 
Liability  of  Guarantor,  see  Guaranty,  14- 

18. 
Wife's  Liability  .as  Surety  for  Husband,  see 

Husband  and  Wife,  46,  47. 
Indorsement  bv  Married  Woman,  see  Hus- 
*        band  and  Wife,  28.  29,  32-35. 
Liability  of  Married   Woman   on  Guaranty 

of  Note,  see  Husband  and  Wife.  35. 
Effect  of  Mental  Incompetency  of  Indorser, 

see  Incompetent  Persons.  12.- 
Indorser  as  Creditor,  see  Lew  and  Seizure, 

5. 
See  also  supra.  96. 
For  Editorial  Notes,  see  infra,  VTI.  §§  13,  15, 

17. 

105.  Notice  to  the  indorsee  that  an  indors- 
er has  no  interest  in  the  transaction  will  not 
relieve  tne  indorser  from  liability  on  the 
note.  Tradesmen's  Nat.  Bank  v.  Loonev, 
99  Tenn.  278,  42  S.  W.  149,  38:  837 

106.  The  8i<mature  of  the  payee  to  an  as- 
signment written  out  on  the  back  of  a  ne- 
gotiable note  makes  him  liable  as  an  ordi- 

L.R.A.  Dig.— 17. 


nary  indorser.     Maine  Trust  &  Bkg.  Co.  ▼. 
Butler,  45   Minn.  506.  48  N.  W.  333, 

12:  370 

107.  An  action  against  a  person  as  the  in- 
dorser of  a  promissory  note  cannot  be  main- 
tained where  the  note  indorsed  by  him  is 
not  negotiable  because  of  an  agreement  on 
the  face  of  it  for  a  renewal.  Citizens'  Nat. 
Bank  v.  Piollet,  126  Pa.  194,  17  Atl.  603, 

4:  190 

108.  A  guaranty  of  attorney's  fees  "up  to 
10  per  cent,  if  this  note  has  to  be  collected 
by  law,  on  its  prompt  payment,"  without 
other  indorsement,  made  for  the  purpose 
and  in  the  course  of  negotiation,  makes  the 
payee  liable  as  an  indorser  with  a  superadd- 
ed liability  for  such  reasonable  sums,  not 
exceeding  10  per  cent,  as  might  be  expend- 
ed for  attorney's  fees  by  the  holder  in  the 
collection  of  the  note.  Pattillo  v.  Alexander. 
96  Ga.  60,  22  S.  E.  646,  29:  610 

109.  Where  the  payees  of  a  promissory 
note  who,  for  the  purpose  of  discounting  it, 
had  left  it,  with  their  indorsement,  to  enable 
the  proposed  purchaser  to  inquire  as  to  the 
.solvency  of  the  makers,  had  obtained  judg- 
ment for  the  value  of  the  note  against  the 
purchaser,  wno  refused  either  to  discount  or 
return  it,  the  payment  of  the  judgment  in- 
vested the  latter  with  title  to  the  note  as 
of  the  date  of  the  conversion,  but  without 
any  obligation  of  the  payees  as  indorsers, 
because  the  indorsement,  being  made  for 
the  mere  purpose  of  discounting  the  note, 
had  never  been  consummated.  Haas  v.  Sack- 
ett,  40  Minn.  53,  41  N.  W.  237,  2:  449 
Indorsement  by  trustee. 

110.  The  liability  of  the  indorser  of  a  note 
is  not  affected  by  the  addition  of  the  word 
"trustee"  to  his  name.  Tradesmen's  Nat. 
Bank  v.  Looney,  99  Tenn.  278,  42  S.  W.  149, 

38:  837 

2.  Indorsement  before  Delivery. 

Parol   Evidence  as  to,  see   Evidence,   1173- 

1175. 
See  al9o  infra,  140. 
For  Editorial  Notes,  see  infra,  VIT.  §  16. 

111.  A  non -negotiable  note  signed  on  its 
back  by  third  persons  -prior  to  its  passing 
to  the  payee  -is  not  evidence  per  se  of  a 
contract  bv  such  indorsers.  Absecom  Mut. 
L.  &  B.  Asso.  V.  Leeds  (N.  J.  Err.  &  App.) 
50  N.  J.  L.  399,  18  Atl.  82,  5:  353 

112.  Persons  who  indorse  a  note  before  de- 
livery, in  order  to  give  credit  to  the  maker, 
are  liable  as  joint  makers  rather  than  as  in- 
dorsers. Svlvester  Bleckley  Co.  v.  Alewine, 
48  S.  C.  308,  26  S.  E.  609,  3/:  86 

113.  A  stranger  to  a  note  who  places  his 
name  upon  it  before  delivery,  to  give  it  cred- 
it with  the  payee,  is  prima  facie  liable  as  a 
comaker.  First  Nat.  Bank  v.  Guardian 
Trust  Co.  187  Mo.  494,  86  S.  W.  109, 

70:  79 

114.  That  one  who  places  his  name  on  a 
note  before  delivery  to  give  it  credit  with 
the  payee  is  to  be  he'd  merely  as  a  surety, 
is  not  shown  by  the  fact  that  the  note  was 
duly  protested,  and  that  one  count  in  the 


258 


BILLS  AND  NOTES,  III.  b,  3,  c. 


complaint   against  him  proceeds   upon   tlie 
theory  that  he  is  an  indorser.  Id. 

115.  One  who  indorses  a  note  in  blank, 
whether  by  writing  his  name  above  or  be- 
low that  of  the  payee,  is  liable  prima  facie 
as  a  maker,  and  may  be  sued  as  such.  Na- 
tional Bank  of  Bellows  Falls  v.  Dorset  Mar- 
ble Co.  61  Vt.  106,  17  Atl.  42,  2:  428 

116.  If  R  non-negotiable  note  bearing  on 
its  back  the  signature  of  the  payee  and  fol- 
lowing it  that  of  another  person  does  not 
represent  an  existing  debt,  but  is  made  for 
the  purpose  of  obtaining  on  it  a  loan  of 
monej'  for  one  or  all  of  the  parties  to  it, 
a  person  who  makes  such  loan  on  the  faith 
of  it  and  takes  it  may,  in  the  absence  of 
an  agreement  to  the  contrary,  of  which  he 
has  notice,  treat  those  whose  names  are  on 
the  back  of  it  as  copromisors  with  him  who 
signed  on  its  face,  or  as  guarantors,  at  his 
election.  Young  v.  Sehon,  53  W.  Va.  127, 
44  S.  E.  136,  62:  499 

117.  By  placing  his  signature  on  the  back 
of  a  non-negotiable  note  at  or  prior  to  the 
time  of  its  inception,  without  making  an 
express  contract  defining  the  nature  and  ex- 
tent of  his  obligation,  a  person  becomes  lia- 
ble as  a  surety  or  joint  promisor;  and  a 
stipulation  in  such  note  waiving  notice  of 
nonpavment  is  wholly  immaterial.  Pool  v. 
Anderson,   116  Ind.  88,   18  N.  E.  445, 

1:  712 

118.  The  undertaking  of  a  third  person 
who  places  his  name  on  the  back  of  a  note 
payable  to  the  maker's  order,  before  or  at 
the  time  of  its  delivery  by  the  maker,  rests 
upon  the  consideration  which  supports  the 
note  in  the  hands  of  the  holder,  and  is 
prima  facie  that  of  a  surety  of  the  maker 
for  the  payment  of  the  note,  although  it  is 
competent  for  him  to  show  a  different  un- 
derstanding or  agreement  between  the  par- 
ties. Ewan  V.  Brooks-Waterfield  Co.  55 
Ohio  St.  596,  45  N.  E.  1094,  35:  786 

119.  An  indorsement  in  blank  before  in- 
ception makes  an  indorser  liable,  under  the 
Pennsylvania  statute  of  frauds  of  1885.  as 
second  indorser  only,  and  creates  no  liability 
to  the  pavee.  Temple  v.  Baker,  125  Pa.  634, 
17  Atl.  516,  3:  709 

120.  The  words  "credit  the  drawer."  writ- 
ten on  the  face  of  a  note  and  signed  by  one 
who  indorses  the  note  in  blank  before  de- 
livery and  who  is  liable,  by  such  indorse>- 
ment.  only  as  second  indorser,  must  be  con- 
strued, not  as  a  gtiaranty  of  the  note,  but 
as  a  statement,  for  the  purpose  of  advising 
any  party  to  whom  it  may  be  offered,  that 
the  indorsement  is  for  the  accommodation 
of  the  prior  parties,  and  that,  as  between 
the  indorser  and  them,  the  drawer  is  en- 
titled to  have  the  proceeds  of  the  note  de- 
livered to  him  or  passed  to  his  credit.     Id. 

121.  A  blank  indorsement  under  Conn. 
Gen.  Stat.  §  1860,  which  makes  it  "import 
the  contract  of  an  ordinary  indorsement," 
renders  the  inrlorser  liable  as  such  precis?ly 
in  the  order  in  which  he  stands  upon  the 
note,  although  he  signs  before  and  above  the 
payee.  Spencer  v.  Allerton,  60  Conn.  410. 
22  Atl.  778,  13:  806 

122.  The  liability  of  one  who   places   his 


name  on  the  back  of  an  inland  bill  of  ex- 
change before  its  delivery,  in  order  to  give 
the  maker  credit  with  the  payee,  is,  in  the 
absence  of  any  agreement  to  the  contrary, 
that  of  an  indorser  entitled  to  notice  of 
dishonor.  And  this  liability  can  be  in  n  > 
way  affected  oy  any  understanding  or  agree- 
ment between  the  maker  and  the  payee.  De 
Pauw  V.  Bank  of  Salem,  126  Ind.  553,  25 
N.  E.  705,  .  10:  46 

Liability  of  maker  indorsing  note. 

123.  The  maker  of  a  note  payable  to  his 
own  order,  who  indorses  his  name  on  the 
back,  does  not  thereby  become  an  indorser 
in  the  legal  sense  of  the  term,  or  contract 
any  liability  except  that  of  maker.  Ewan 
V.  Brooks-Waterfield  Co.  55  Ohio  St.  596,  45 
N.  E.  1094,  35:786 

124.  The  indorsement  of  the  maker's  name 
on  the  back  of  a  promissory  note  payable  to 
his  order,  and  its  delivery  in  that  form  to 
another  for  value,  are  essential  parts  of  tue 
execution  of  the  note,  which  then  becomes 
in  legal  effect  payable  to  the  holder  or 
bearer.  Id. 

3.  Restrictive  Indorsements. 

On  .  Certificate  of  Deposit,  see  Banks,   187, 

188. 
On  Notes  Placed  with  Bank  for  Collection, 

see  Banks,  195. 
Indorsement  for  Collection,  see  Banks,  201- 

212. 
Indorsing  Check  "for  Deposit,"  see  Banks, 

308. 
Parol  Evidence  as  to,  see  Evidence,  1178. 
See  also  infra,  183,  192. 
For  Editorial  Notes,  see  infra,  VIL   §§   15, 

17. 

124a.  The  phrase  "without  recourse,"  or 
its  equivalent,  must  be  used  to  limit  and 
qualify  an  indorsement  made  on '  the  back 
of  a  negotiable  note.  Maine  Trust  &  Bkg. 
Co.  V.  Butler,  45  Minn.  506,  48  N.  W.  333, 

12:  370 

125.  An  assignment  without  recourse  by 
the  payee  of  a  negotiable  note  payable  to 
order  will  not  prevent  an  indorsement  by  the 
assignee  from  making  him  liable  as  indorser 
of  negotiable  commercial  paper.  De  Hass 
V.  Dibert,  28  U.  S.  App.  559,  17  C.  C.  A.  79, 
70  Fed.  227,  30:  189 

126.  One  is  not  liable  as  indorser  on  % 
promissory  note,  who  places  over  his  signa- 
ture thereon  the  words,  "I  hereby  transfer 
my  interest  in  the  within  note."  Spencer  v. 
Halpern,  62  Ark.  595,  37  S.  W.  711,      36:  120 

127.  Liability  as  indorser  on  a  promissory 
note  is  not  prevented  by  the  use  of  the  words 
"I  hereby  assign  the  within  note  to"  the 
persons  named  as  assignees.  Markey  v. 
Corey,  108  Mich.  184,  66  N.  W.  493,   36:  117 

c.  Discharge  of  Indorser. 

Matters  as  to  Presentment  and  Notice  of 
Nonpayment  to  Hold  Indorser,  see  infra, 
IV. 

Rights  of  Transferee  Against,  see  infra.  V.  a. 

Bank  Cashier's  Power  as  to,  see  Banks,  38. 


BILLS  AND  NOTES,  IV.  a. 


259 


As  Consideration  of  Chattel  Mortgage,  see 

Chattel  Mortgage,  8. 
Discharge  of  Guarantor,  see  Guaranty,   23, 

25,  29-38,  41. 
Release  of  Surety,  see  Principal  and  Surety, 

25,  28,  29,  34,  35,  40-44. 
By  Limitation  of  Action,  see  Limitation  of 

Actions,  259. 
For  Editorial  Notes,  see  infra,  VII.  §  28. 

128.  The  suspension,  even  for  a  day,  of  a 
right  of  action  on  a  promissory  note  against 
the  maker  by  an  arrangement  with  him, 
irrevocably  discharges  an  indorser,  although 
the  maker  maj'  break  his  contract  by  which 
the  right  of  action  against  him  was  suspends 
ed.  Timberlake  v.  Thayer,  71  Miss.  279,  14 
So.  446,  24:  231 

129.  The  giving  of  a  judgment  or  other  se- 
curity by  the  maker  or  prior  indorser  of  a 
note  does  not  discharge  a  subl^quent  in- 
dorser. First  Nat.  Bank  v.  Peltz,  176  Pa. 
513,  35  Atl.  218,  36:  832 

130.  The  holder  of  a  note  cannot  collect  it 
from  an  accommodation  indorser,  if,  with- 
out giving  him  notice  that  the  note  is  un- 
paid, it  induces  him  to  discharge  a  judgment 
which  has  been  given  to'  secure  him  against 
liability  on  his  indorsement,  which  is  a 
prior  lien  on  property  of  the  one  primarily 
liable,  and  thereby  advances  to  the  position 
of  first  lien  a  judgment  which  has  been  giv- 
en by  such  person  to  the  holder  to  secure 
payment  of  the  note  in  question.  Id. 

131.  One  whose  name  is  indorsed  on  a  note 
cannot  be  held  liable  thereon  by  a  transferee 
if,  prior  to  the  transfer,  he  had  given  in- 
structions for  the  erasure  of  his  name,  which 
was  known  to  the  transferee,  although  the 
instructions  were  not  complied  with.  Gregg 
V,  Groesbeck,  11  Utah,  310,  40  Pac.  202, 

32:  266 

132.  The  liability  of  the  indorser  of  a  note 
cannot  be  preserved  by  a  reservation  of  the 
rights  and  claims  against  him  by  the  holder, 
when  he  releases  a  judgment  against  the 
maker  upon  payment  of  less  than  the 
amoimt  due.  Spies  v.  National  City  Bank, 
174  N.  Y.  222,  66  N.  E.  736,  61:  193 


IV.  Presentment;  Demand;  Notice;  Protest. 
a.  Necessity. 

Note  Received  for  Collection,  see  Banks,  25*5- 

257. 
What    will    Excuse    Nonpresentment,     see 

Checks,  26-28. 
Presumption  as  to.  see  Evidence,  170. 
Necessity  of  Alleging  Protest,  see  Pleading, 

289.' 
Pledgee's  Liability   for  Failure   to  Present, 

see  Pledge  and  Collateral  Security,  26. 
See  also  supra.  122;  infra,  163.  164,  265. 
For  Editorial  Notes,  see  infra,  VII.  §  26. 

133.  To  charge  the  payment  of  a  demand 
note  upon  a  payee  wbo  has  indorsed  and 
transferred  the  same,  demand  for  payment 
must  be  made  upon  the  maker,  and  notice 
of  failure  to  pay  be  given  to  the  indorser, 
within  a  reasonable  time  after  the  indorse- 


ment.    Turner  v.  iron  Chief   Min.   Co.    74 
Wis.  355.  43  N.  W.  149,  5:  533 

134.  A  failure  of  the  holder  of  a  promis- 
sory note  to  present  for  payment,  or  to  give 
notice  of  nonpayment,  discharges  the  indors- 
er from  liability.  Pattillo  v.  Alexander,  96 
Ga.  60,  22  S.  E.  646,  29:616 

135.  An  indorser  of  a  note  after  its  ma- 
turity is  not  liable  thereon  without  demand 
upon  the  maker  and  notice  of  nonpayment. 
Beer  v.  Clifton,  98  Cal.  323,  33  Pac.  204, 

20:  580 

136.  One  who  sends  paper  for  collection, 
whether  he  indorses  it  or  not,  is  entitled  to 
notice  of  dishonor  and  to  one  day  thereafter 
to  notify  prior  indorsers.  Rosson  v.  Carrol. 
90  Tenn.  90,  16  S.  W.  66,  12:  727 

137.  The  liability  of  the  indorser  of  a. 
note  for  annual  interest  which  becomes  due: 
before  the  maturity  of  the  note  is  dependent 
upon  a  prior  demand  of  the  maker.  Mt. 
Mansfield  Hotel  Co.  v.  Bailey,  64  Vt.  151,  24 
Atl.  136,  16:  295 

138.  An  indorser  of  a  forged  bill  is  liable 
to  the  indorsee  on  its  dishonor  without  proof 
of  demand  or  notice.  Hamer  v.  Brainard,  7 
Utah,  245,  26  Pac.  299,  12:  434 

139.  An  indorser  for  whose  benefit  an  ac- 
commodation note  was  made,  being  bound 
to  provide  funds  to  meet  it  at  maturity,  is 
not  released  bj'  lack  of  presentment,  pro- 
test, or  notice.  American  Nat.  Bank  v.  Junk 
Bros.  Lumber  &  Mfg.  Co.  94  Tenn.  624,  30 
S.  W.  753,  28:492 

140.  A  third  person  placing  his  name  on 
the  back  of  a  promissory  note  before  de- 
livery to  the  payee  is  an  original  promisor 
or  maker,  not  entitled  to  demand  or  notice 
of  nonpayment,  and,  as  to  him,  no  consider- 
ation need  be  proved.  Cherry  v.  Sprague, 
187  Mass.  113,  72  N.  E.  456,  67:  33 
Effect  of  insolvency. 

Necessity  of  Presenting  Cheek,  see  Checks, 
10. 

141.  Insolvency  of  the  maker  of  a  note  is 
no  excuse  for  failure  to  give  notice  of  dis- 
honor. Hudson  Furniture  Co.  v.  Harding, 
34  U.  S.  App.  148,  17  C.  C.  A.  203,  70  Fed. 
468,  30:513 

142.  The  mere  insolvency  of  the  makers 
of  a  note  does  not  excuse  a  demand  on  them 
as  a  condition  of  holding  the  indorser  liable. 
Leonard  v.  Olson,  99  Iowa,  162,  68  N.  W.  677, 

35:  381 
Waiver. 

See  also  infra,  225. 
For  Editorial  Notes,  see  infra,  VII.  §  29. 

143.  The  indorsement  of  a  waiver  of  pro- 
test and  notice  of  protest  implies  knowledge 
of  all  the  paper  contains  at  the  time,  and 
precludes  any  defense  based  on  matters  then 
apparent  on  the  face  of  the  instrument. 
Montgomery  v.  Crosthwait,  90  Ala.  553,  8 
So.  498,       '  12:  140 

144.  Oral  directions  by  indorsers.  not  to  do 
anything  with  a  note  on  default  of  payment, 
may  constitute  a  sufficient  waiver  of  de- 
mand and  notice.  Markland  v.  McDaniel, 
51  Kan.  350,  32  Pac.  1114,  20:  96 

145.  An  indorser,  by  asking  that  the  time 
of  payment  be  extended,  and  promising  to 
let  his  name  remain  on  the  note  if  the  ex- 


260 


BILLS  AND  NOTES.  IV.  b. 


tension  is  granted,  waives  demand  and  no- 
tice of  nonpayment.  Cady  v.  Bradshaw,  116 
X.  Y.  188,  22  "N.  E.  371,  5:  557 

146.  A  drawer's  promise  to  pay  a  draft, 
or  his  recognition  of  liability  to  pay  a  draft, 
with  full  knowledge  of  the  facts  releasing 
him  from  liability,  is  a  waiver  of  his  right 
to  insist  that  he  has  been  released  by  fail- 
ure to  take  the  necessary  steps  to  charge 
him.  Bank  of  Gilbv  v.  Farnsworth,  7  N.  D. 
6,  72  N.  W.  901.        '  38:  843 

147.  Payment  of  interest  on  a  note  after 
maturity  waives  the  defense  of  failure  to 
present  the  note  for  payment  at  the  place 
where  it  was  payable.  Greeley  v.  White- 
head. 35  Fla.  523.  17  So.  643,  28:  286. 

148.  Statements  by  an  indorser  to  third 
persons,  merely  showing  that  he  thought 
himself  still  liable  on  a  note  from  whieh  he 
had  been  discharged  by  failure  to  give  him 
notice  of  disnonor.  does  not  establish  an 
admission  of  liabilitv.  Rosson  v.  Carrol,  90 
Tenn.  90,  16  S.  W.  60,  12:  727 

149.  Acknowledgment  of  liability  by  an 
indorser  will  not  prevent  his  discharge  for 
lack  of  notice  of  dishonor,  unless  made  with 
full  knowledge  of  his  discharge.  Id. 

150.  A  subsequent  promise  to  pay  will 
not  bind  an  indorser  who  has  been  releaseu 
by  lack  of  notice,  unless  supported  by  a  con- 
■^iflfnit'on.  Sebree  Denorit  Bank  v.  More- 
land,  96  Ky.  150,  28  S.  W.  153,  29:  305 

b.  Sufficiency. 

EfTect  of  Dishonor  of  First  of  Series  on  Pur- 
chaser of  Later  Note,  see  infra,  233. 

Mode  of  Presenting  Check,  see  Checks,  11- 
13. 

Evidence  as  to,  see  Evidence,  2031. 

Extortionate  Protest  Fees,  see  Extortion,  3. 

Allegation  of  Giving  of  Notice,  see  Pleading, 
288. 

For  Editorial  Notes,  see  infra,  VII.  §  27. 

151.  The  notice  served  by  the  last  in- 
dorser of  a  promissory  note  need  not  be 
actually  prepared  by  him.  but  he  may  adopt 
and  utilize  for  that  purpose  a  notice  sent 
him  by  the  protesting  officer,  addressed  to 
the  next  prior  indorser.  Oakley  v.  Carr, 
66  Neb.  751.  92  N.  W.  1000,  60:  431 
Notice  by  mail. 

Proof   of   Sending  of  Notice,  see   Evidence, 

2.348. 
For  Editorial  Notes,  see  infra,  \ai.  §  27. 

152.  A  notice  of  y)r()test  of  a  note,  mailed 
to  an  indorser  at  the  town  where  the  note 
was  payable,  under  N.  Y.  Laws  1857,  chap. 
416,  §  3,  permitting  such  notice  where  the 
indorser  lives  in  the  s;inie  town,  in  reliance 
only  upon  an  entry  in  a  directory,  without 
further  inquiry  as  to  the  indorser's  res'- 
dence.  which  is  in  fact  in  another  town  and 
which  could  have  been  readily  ascert>ained  by 
innuiry, — is  insufficient  to  charge  him  with 
liabilitv  on  the  n'lte.  Bacon  v.  Hanna,  137 
N.  Y.  .379.  3.S  X.  E.  .303,  20:  495 
Time  generally. 

KlVcct  of  Banker's  Honest  Mistake  as  to,  see 

Banks,  257. 
On  Certificate  of  Deposit,  sec  Banks,  191. 


EflFeet   of  Delay   in   Presenting   Check,   see 

Checks,  14-25. 
Presumption  of  Premature  Presentment,  see 

Evidence,  640. 
Sufficiency    of   Proof   as    to,    see    Evidence, 

2347. 
Pleading  as  to,  see  Pleading,  42. 
See  also  supra,  133,  136. 
For  Editorial  Notes,  see  infra,  Vll.  §§  27, 

28. 

153.  The  time  for  notice  of  dishonor  of  a 
note  is  the  same  whether  it  was  indorsed 
before  or  after  maturity.  Rosson  v.  Carrol, 
90  Tenn.  90,  16  S.  W.  66,  ,12:  727 

154.  Demand  of  payment  of  a  note  in- 
dorsed when  overdue,  whieh  is  ineffectual  be- 
cause not  followed  by  protest  or  notice,  pre- 
vents any  effectual  demand  and  protest  on 
a  subsequent  date.  Id. 

155.  Notice  of  dishonor  of  a  promissory 
note  is  sufficient,  if  sent  to  the  last  indorser 
by  the  first  mail  of  the  day  following  dis- 
honor, even  though  such  indorser  is  an  agent 
for  collection,  merely,  and  he  is  entitled  to 
one  additional  day  to  notify  the  indorser  im- 
mediately preceding  him.  Oakley  v.  Carr, 
66  Neb.  75L  92  N.  W.  1000,  60:  431 

156.  Where  the  last  indorser  of  a  promis- 
sory note  receives  notice  of  dishonor  on  Sat- 
urday, his  notice  to  the  next  prior  indorser 
is  timely  if  served  on  the  following  Mondav. 

Id. 

157.  The  drawer  of  a  draft  which  is  lost 
in  course  of  transmission  through  the  mails 
from  the  payee  to  his  correspondent  in  an- 
other city  where  the  drawee  is  located  is  re- 
lieved from  liability,  where  the  payee  fails 
to  present  the  draft  or  to  discover  the  loss 
for  nearly  six  months,  although  the  fact  of 
the  loss  appeared  by  report  from  the  corre- 
spondent showing  that  the  draft  had  never 
been  received.  Bank  of  Gilby  v.  Farnsworth, 
7  N.  D.  6,  72  N.  W.  901,  38:  843 

158.  A  notice  of  the  protest  of  a  note  for 
nonpayment  is  sufficient  to  fix  the  liability 
of  an  indorser,  if,  being  sent  by  the  notary 
in  due  time,  it  is  delivered  the  ne.xt  day 
to  the  wife  of  the  indorser  at  his  place  of 
residence;  and  the  fact  that  the  letter  con- 
taining it  was  taken  from  the  mail  bag  in 
violation  of  a  postal  regulation  is  imma- 
terial. Stanley  v.  McElrath,  86  Cal.  449, 
25  Pac.  16,  10:  545 
On  demand  note. 

Time  for  Presenting  Checks,  see  Checks,  6- 

9. 
Question  for  Jury  as  to,  see  Trial,  150,  151. 

159.  A  demand  note,  whether  with  or 
without  interest,  onlj'  matures  as  to  an  in- 
dorser thereof  when  payment  is  demanded, 
but  in  the  absence  of  acts  excusing  the  same 
demand  must  be  made  of  the  maker  within 
a  reasonable  time  in  order  to  hold  an  in- 
dors.;M-.  Lecmard  v.  Olson,  99  Iowa,  162,  68 
N.  W.  677,  35:  .381 

160.  The  holder  of  a  demand  note  who  is 
unable  by  reason  of  the  removal  of  the 
makers  from  the  state  to  make  a  demand 
on  them  within  a  reasonable  time  must  give 
notice  of  that  fact  and  of  the  fact  of  non- 
payment to  the  indorser  within  a  reasonable 
time,  in  order  to  hold  him.  Id. 


BILLS  AND  NOTES,  IV.  c. 


261 


161.  A  demand  made  nearly  ten  years  aft- 
er the  giving  of  a  note  is  not  made  within  a 
reasonable  time  within  the  rule  that  to  bind 
the  indorser  of  a  demand  note  demand  or 
payment  must  be  made  upon  the  maker 
within   a  reasonable  time.  Id. 

162.  A  delay  of  more  than  ten  months  in 
making  a  demand  of  payment  and  giving  no- 
tice ot  protest,  after  the  indorsement  of  a 
promissory  note  payable  on  demand,  is  un- 
reasonable. Turner  v.  Iron  Chief  Min.  Co. 
74  Wis.  355,  43  N.  W.  149,  5:  533 
Place. 

For  Editorial  Notes,  see  infra,  VII.  §  27. 

163.  The  general  rule  that  the  holder  of  a 
note  or  bill  is  not  required  to  make  personal 
or  other  demand  on  the  maker  as  a  condi- 
tion of  holding  the  indorser  if  the  place  of 
payment  designated  in  the  note  or  bill  is 
closed  on  the  day  the  paper  falls  due  is 
not  modified  or  altered  by  the';fact  that  a 
new  bank  is  occupying  the  place  where  the 
bank  at  which  the  paper  was  made  payable 
had  formerly  been  engaged  in  business. 
Hutchison  v.  Crutche',  98  Tenn.  421,  39  S.  W. 
725,  37:  89 

164.  The  removal  of  the  maker  of  a  note 
from  and  his  continu'?d  residence  out  of  the 
state,  after  the  making  of  the  note  and  Im?- 
fore  its  maturity,  excuses  an  actual  demand 
on  him  as  a  condition  of  holding  an  indorser, 
unless  the  note  is  payable  at  a  particular 
place,  in  which  case  demand  must  be  made 
in  that  place;  but  if  it  is  made  payable  at 
a  specified  town  or  city  without  further 
specification  as  to  place  it  is  to  be  treated 
as  payable  generally,  unless  expressly  made 
payable  at  such  town  or  city  alone;  and 
presentation  there  is  not  necessary  in  the 
event  of  such  removal.  Leonard  v.  Olson, 
99  Iowa,  162,  68  N.  W.  677,  35:  381 

165.  The  only  bank  doing  business  in  a 
place  is,  for  the  purpose  of  demand  and  pro- 
test of  a  note,  the  successor  of  a  defunct 
bank  which  formerly  was  engaged  in  busi- 
ness at  that  place  but  is  closed,  and  at  which 
the  note  was  made  payable,  where  the  in- 
dorser resides  at  that  place,  but  the  maker 
floes  not.  First  Nat.  Bank  v.  Wever  (Tex. 
App.)  15  S.  W.  41,  11:  295 
Upon  whom  generally. 

166.  A  notarial  notice  of  protest  for  non- 
payment of  a  note,  adaressed  to  an  indorser 
as  if  living,  when  the  indorser  is  dead,  it 
actually  received  by  his  administrator,  is 
good  to  charge  such  indorser's  estate.  Bank 
of  Ravenswood  v.  Wetzel  (W.  Va.)  50  S.  E. 
886,  70:  305 

167.  A  demand  and  notice  upon  a  Federal 
examiner  in  possession  of  an  insolvent  na- 
tional bank  may  be  sufficient  to  bind  the 
bank  as  an  indorser,  when  he  is  by  operation 
of  law  in  charge  of  its  books  and  papers,  so 
that  there  is  no  other  person  upon  whom  to 
make  the  demand  at  the  place  appointed  in 
the  note.  Auten  v.  Manistee  Nat.  Bank,  67 
Ark.  243,  54  S.  W.  337,  47:  329 

168.  To  render  the  indorser  liable  on  a 
note  signed  by  one  who  affixed  the  word 
"a<rent"  to  his  mme  without  disclosing  his 
principal  payment  must  be  demanded  of, 
and  refused  by,  the  agent;   demand  on  the 


principal  is  not  sufficient.     Stinson  v.  Lee, 
68  Miss.   113,  8  So.  272,  9:  8?0 

On  joint  or  joint  and  several  parties. 
For  Editorial  Notes,  see  infra,  Vli.  §  27. 

16t).  Presentment  to  all  the  makers  of  a 
note  must  be  made  in  order  to  hold  an  indor- 
ser, whether  the  note  is  joint  in  form  or 
joint  and  several.  Benedict  v.  Schmieg,  13 
Wash.  476,  43  Pac.  374,  30:  ?03 

170.  A  statute  making  all  joint  obliga- 
tions joint  and  several  applies  to  the  in- 
dorsement of  a  promissory  note,  so  that  no- 
tice on  nonpayment  given  to  any  one  of 
several  joint  indorsers  is  sufficient  to  bind 
him.  Jarnagin  v.  Stratton,  95  Tenn.  619, 
32  S.  W.  625,  30:  495 

171.  The  fact  that  persons  who  become 
joint  makers  of  a  corporation  note  are  direct- 
ors of  the  company  and  constitute  a  ma- 
jority of  the  board  does  not  make  it  un- 
necessary to  give  them  notice  of  dishonor 
of  the  note,  when  by  the  law  of  the  state 
joint  makers  are  entitled  to  the  same  notice 
as  indorsers.  Hudson  Furniture  Co.  v.  Hard- 
ing. 34  U.  S.  App.  148,  17  C.  C.  A.  203,  70 
Fed.  468,  30:  513 
On  receiver. 

172.  Presentment  and  demand  of  payment 
made  on  a  receiver  pendente  lite  of  an  insol- 
vent bank  and  notice  of  nonpayment  by 
him  are  insufl^cient  to  bind  an  indorser  of  a 
negotiable  certificate  of  deposit  issued  by  the 
bank  before  its  insolvency.  Jackson  v.  Mc- 
Innis,  33  Or.  529,  54  Pac.  884,  43:  128 

173.  The  holder  of  a  bill  or  note  payable 
by  its  terms  at  a  national  bank  must,  as  a 
condition  of  holding  the  indorser,  present 
tiie  same  to  a  receiver  of  the  bank,  appointed 
by  the  Comptroller  of  the  Currency  because 
of  its  insolvency,  in  charge  of  its  assets  and 
administering  them  for  the  benefit  of  its 
creditors,  where  the  place  in  which  he  is  ad- 
ministering his  trust,  though  not  the  former 
banking  house,  is  in  the  same  city",  and  its 
location  is  well  known  in  the  business  com- 
munity. Hutchison  v.  Crutcher,  98  Tenn. 
421,  39  S.  W.  725,  37:  89 
On  Assif^nor  or  assignee  for  creditors. 

174.  Notice  of  protest  of  a  bill  of  ex- 
change to  a  drawer  who  has  executed  an  as- 
signment for  benefit  of  creditors,  is  sufficient 
to  bind  his  estate  in  the  hands  of  the  as- 
signee. Tavlor  v.  Citizens'  Sav.  Bank,  114 
Ky.  577,  71  S.  W.  .520,      '  61:900 

175.  An  assignee  of  the  indorser,  under  a 
general  assignment  for  creditors,  >:n  far 
stands  in  the  shoes  of  his  assignor  that  no- 
tice to  him  of  nonpayment  of  the  indorsed 
paper  will  bind  the  indorser.  American  Nat.' 
Bank  v.  Junk  Bros.  Lumber  &  Mfg.  Co.  94 
Tenn.  624,  30  S.  W.  753,  28:  492 

c.  Notice  of  Protest. 

Effect  of  Instruction  to  "Protest"  Note  Sent 
for  Collection,  see  Banks,  253,  254. 

Liability  on  Bond  of  Notary  for  Failure  to 
Give,  see  Bonds,  73. 

Of  Nonpayment  of  Check,  see  Checks,  29. 

Liability  for  Libelous  Protest,  see  Banks, 
273. 

As  Libel,  see  Libel  and  Slander,  56,  57. 


262 


BILLS  AND  NOTES,  V.   a,  1. 


Pkading  as  to,  see  Pleading,  368,  469. 

176.  A  sufficient  noting  of  protest  of  a 
bill  for  nonpayment  is  made  by  an  indorse- 
ment of  the  words  "Protested  for  nonpay- 
ment," together  with  the  date  and  the  offi- 
cial signature  of  the  notary.  Taylor  v.  Citi- 
zens' bav.  Bank,  114  Ky.  577,  71  S.  W.  520, 

61:  900 

177.  i'ailure  to  preserve  the  slip  upon 
which  the  noting  of  protest  of  a  bill  was 
entered  will  not  discharge  the  person  sought 
to  be  held  liable  thereon,  if  the  noting  was 
actually  made,  the  instrument  of  protest 
executed,  and  notice  duly  given  to  him.    Id. 


V.  Rights  of  Transferees. 

a.  Extent  of  Rights  and  Protection  Gener- 
ally. 

1.  In  General. 

Right  to  Attach  Land  as  Creditor,  see  At- 
tachment, 4. 
Right  to   Enforce   Provision   for  Attorneys' 

Fees,  see  Attorneys'  Fees,  5. 
Draft    with    Bill    of   Lading   Attached,    see 

Banks,  200;  Bills  of  Lading,  3-8. 
On   Assignment    of   Coupon   Interest   Note, 

see  Coupons,  4. 
False  Representations  by  Transferrer  as  to 

Value,  see  Fraud  and  Deceit,  28,  29,  56. 
Right  to  Attack  Fraudulent  Conveyance,  see 

Fraudulent  Conveyances,  60. 
Rights  of  Donee,  see  Gift,  13,  16. 
Of   Rent   Note,   see   Landlord    and    Tenant, 

227. 
Of  Note  Secured  by  Mortgage,  see  Mortgage, 

106-114,  218, 
Assignee's  Right  of  Action,  see  Parties,  88- 

90. 
Allegation  as  to  Transferee's  Ownership  of 

P.ill  of  Lading  Attached  seee  Pleading, 

290. 
See  also  supra,  44,  109. 
For  Editorial  Notes,  see  infra,  VII.  §§  20- 

24. 

178.  Unless  payable  to  bearer  or  indorsed 
negotiaole  paper,  although  assigned  before 
maturity,  will  be  subject  in  the  hands  of  the 
assignee  to  all  equities  which  acciiie  before 
notice  is  given  of  the  assignment.  Vann  v. 
Marbury,  100  Ala.  438.  14  So.  273,        23:  325 

179.  One  who  purchases  for  value,  of  a 
creditor,  the  obligation  of  his  debtor,  and 
obtains  the  latter's  promissory  note,  pay- 
able to  himself,  as  evidence  of  his  obligation, 
with  full  knowledge  of  the  consideration 
thereof,  and  of  the  facts  which  condition  the 
inception  of  the  original  obligation,  takes 
the  note  subject  to  all  the  defenses  which 
existed  against  it  in  the  hands  of  the  orig- 
inal creditor.  Williams  v.  Neelv,  67  C.  C. 
A.  171,  134  Fed.  1,  '        60:  2.32 

180.  A  transfer  of  commercial  paper  be- 
fore maturity  but  without  indorsement 
passes  an  equitable  title  only;  and  notice 
thereafter  given  to  the  transferee,  of  eouitios 
between  the  maker  and  payee,  will  make  the 
transferee  subject  thereto,  notwithstanding 


he  subsequently  obtains  an  actual  indorse- 
ment before  maturity.  Pavey  v.  Stautfer, 
45  La.  Ann.  353,  12  So.  512,  19:  716 

181.  An  assignment  of  a  note  on  which 
is  indorsed  a  guaranty  not  referred  to  in  the 
assignment,  but  which  is  all  that  gives  the 
note  any  value,  assigns  the  guaranty  also. 
Lemmon  v.  Strong,  59  Conn.  448,  22  Atl.  293, 

12:  270 

182.  A  note,  bill,  or  draft,  is  void  in  the 
hands  of  one  who  acquired  it  at  an  illegal 
discount,  which  is  made  by  statute  a  mis- 
demeanor, ii^oungblood  v.  Birmingham 
Trust  &  S.  Co.  95  Ala.  521,  12  So.  579. 

20:  58 
183.'  The  title  to  personal  property  re- 
served for  securing  the  payment  of  a  debt 
by  the  terms  of  a  promissory  note  for  the 
purchase  money  is  devested  by  a  transfer 
of  the  note  by  the  payee  for  value  to  a 
third  person,  without  recourse,  and,  unless 
at  the  time  of  such  transfer  of  the  note  the 
title  to  the  property  is  not  also  transferred 
to  the  purchaser  of  the  note  as  security,  it 
vests  in  the  maker,  and  the  transferee  of 
the  note  becomes  an  ordinary  creditor  of 
such  maker.  Burch  v.  Pedigo,  113  Ga.  1157, 
39  S.  E.  493,  54:  808 

184.  The  pledgee  of  a  promissory  note  as 
collateral  security  can  enforce  it  against  the 
maker  only  to  the  extent  of  his  claim 
against   the   pledgeor, — at   least   where   the 

.maker  has  a  valid  defense  against  the  en- 
forcement of  the  note  by  the  pledgeor. 
Yellowstone  Nat.  Bank  v.  Gagnon,  19  IVIont. 
402,  48  Pac.  762,  44:  243 

185.  An  assignment  of  a  mortgage  and  the 
note  secured  thereby  as  collateral  security, 
before  maturity  of  the  note,  accompanied 
by  a  delivery  of  the  mortgage  and  what  pur- 
ported to  be  the  note,  but  which  was  in  fact 
a  forgery  of  it,  will  pass  a  valid  title  to  the 
note  as  against  one  to  whom  the  assignor 
transfers  the  genuine  note  after  maturity. 
Kernohan  v.  Durham,  48  Ohio  St.  1,  26  N.  E. 
982,  12:  41 

186.  Enforcement  of  a  note  given  as  a 
subscription  to  the  stock  of  a  syndicate  or- 
ganized to  purchase  the  property  of  a  cor- 
poration, and  which  is  used  to  pay  for  such 
property,  cannot  be  defeated  by  fraudulent 
overvaluation  of  the  property  purchased,  if 
the  parties  making  the  representations  were 
representatives  of  the  syndicate  and  not  of 
the  vendor  corporation.  Tradesmen's  Nat. 
Bank  v.  Looney,  99  Tenn.  278,  42  S.  W.  149, 

38:  837 
Taken  after  maturity. 
See  also  supra,  185;  infra,  205. 
For  Editorial  Notes,  see  infra,  VII.  §  23. 

187.  An  equitable  claim  of  right  or  title 
to  a  negotiable  note  may  be  asserted  by  a 
third  party  not  a  party  to  the  instrument, 
affainst  an  indorsee  after  maturitv.  Ker- 
nohan V.  Durham,  48  Ohio  St.  1,  26  N.  E.  982, 

12:  41 
187a.  The  purchaser  of  a  note  surrepti- 
tiously taken  by  the  nominal  payee  from  the 
true  owner  after  maturity  gets  no  title  as 
against  the  latter,  although  he  paid  value  for 
it,  and  had  no  notice  of  the  defective  title 
of    the    person    from    whom    he    purchased. 


BILLS  AND  NOTES,  V.  a,  3. 


368 


Merrell  v.  Springer,   123  Ind.  485,  24  N.  E. 
258,  8:  61 

188.  The  fact  that  nefjotiable  paper  is 
overdue  when  transferred  in  the  usual  course 
of  business  by  an  indorsee  having  all  the 
indicia  of  an  absolute  title,  but  who  holds 
it  in  fact  only  as  collateral  security,  does  not 
subject  the  title  of  the  transferee,  who  takes 
it  after  maturity,  to  the  latent  equities  ex- 
isting in  favor  of  third  parties  against  the 
person  holding  the  paper  as  collateral. 
Young  Men's  Christian  Asso.  Gymnasium  Co. 
V.  Rockford  Nat.  Bank,  179  111.  599,  54  N.  E. 
297,  46:  753 

189.  Purchasers  from  the  payee,  after  ma- 
turity, of  a  negotiable  note  on  wliich  there 
are  indorsements  subsequent  to  that  of  the 
payee  by  persons  who  have  held  the  note  as 
collateral,  and  on  surrendering  it  have  failed, 
by  mistake,  to  cancel  their  indorsements, 
cannot  maintain  an  action  agaljjst  such  sub- 
sequent indorsers.  Adrian  v.  McCaskill,  103 
N.   e.   182,   9   S.   E.  284,  3:  759 

190.  An  accommodation  note  paid  at  its 
maturity  by  the  real  debtor,  although  he  is 
not  a  party  to  it,  cannot  be  thereafter  trans- 
ferred by  him  so  as  to  give  it  validity 
against  the  accommodation  makers  and  in- 
dorsers. Cottrell  v.  Watkins,  89  Va.  801, 
17  S.  E.  328,  19:  754 

191.  The  purchaser  of  an  accommodation 
note  after  its  maturity  gets  no  better  or 
greater  right  to  enforce  it  against  the  maker 
or  indorser  than  if  it  were  ordinary  nego- 
tiable business  paper  given  for  value.  Id. 
Transfer  by  restrictive  indorsement. 
Indorsed  for  Collection,  see  Banks,  194. 
See  also  supra,  124a-127,  183. 

192.  A  transfer  of  a  promissory  note  un- 
der an  indorsement  stating  a  sale,  transfer, 
and  assignment  of  the  note  and  interest  cou- 
pons "without  recourse"  does  not  destroy 
the  commercial  character  of  the  indorsement, 
so  as  to  make  it  subject  to  equities,  where 
the  statute  provides  that  the  addition  of  the 
words  "without  recourse,"  to  an  indorsement 
of  a  note,  shall  not  destroy  its  negotiability. 
Thorpe  v.  Mindeman,  123  Wis.  146,  101  N. 
W.  417,  68:  146 
Payment  to  other  person. 

103.  In  the  absence  of  notice  of  the  assign- 
ment, payment  to  the  payee  of  a  note,  as- 
signed without  indorsement,  will  be  a  com- 
plete protection  against  the  assignee,  al- 
though the  note  was  not  produced  or  deliv- 
ered up  at  the  time  of  the  pavment.  Vann 
V.  Marbury,  100  Ala.  438,  14  So.  273. 

23:  325 

2.  Of  Bona  Fide  Holders. 

Of  Raised  Draft,  see  Alteration  of  Instru- 
ments, II. 

Of  Check,  see  Checks,  43,  44. 

Of  Note  Secured  by  Mortgage,  see  Mortgage, 
111,  113. 

Effect  of  Misapplication  of  Proceeds  by 
Bank  Officers,  see  Banks,  51. 

Following  State  Decision  as  to,  see  Courts, 
549. 

As  Against  Married  Woman,  see  Husband 
and  Wife,  28-35,  47. 


Proximate  Cause  of  Injury  to,  see  Proximate 

Cause,  133. 
Construction  of  Statute  as  to,  see  Statutes, 

420. 
Effect  of  bsurv,  see  Usury,  39. 
See  also  supra,'  30,  102-104. 
For  Editorial  Notes,  see  infra,  VII.   §§  20, 

22. 

194.  The  fact  that  the  consideration  ot  a 
negotiable  note  is  future  and  contingent  does 
not  make  it  liable  to  equities  between  the 
parties  in  the  hands  of  a  bona  fide  holder 
before  maturitv.  Pavey  v.  Stauffer,  45  La. 
Ann.  353,  12  So.  512,  19:  716 

195.  Where  the  legislature  has  expressly 
declared  that  illegality  in  a  transaction 
shall  make  the  security  growing  out  of  it 
void,  a  note  given  on  a  consideration  which 
is  thereby  declared  illegal,  is  void  even  in 
the  hands  of  an  innocent  holder  for  value. 
Sondheim  v.  Gilbert,  117  Ind.  71,  18  N.  E. 
687,  5:  432 

196.  A  bona  fide  purchaser  of  drafts  in- 
dorsed in  blank  for  the  purpose  of  collection 
has  a  good  title  without  regard  to  prior 
equities  between  the  owner  and  the  collect- 
ing agent.  German  Nat.  Bank  v.  Coors, 
14  Colo.  202,  23  Pac.  328,  7:  845 

197.  A  promissory  note  delivered  by  an 
agent  before  the  execution  of  a  contract  on 
which  he  was  instructed  to  deliver  it,  and 
on  the  mere  promise  of  the  other  party  to 
execute  the  contract  or  return  the  note, 
has  such  a  legal  inception  as  will  sustain  it 
in  the  hands  of  a  bona  fide  purchaser,  al- 
though ine  party  who  obtained  it  of  the 
agent  acted  in  bad  faith.  Chase  Nat.  Bank 
v.  Faurot,  149  N.  Y.  532,  44  N.  E.   164. 

35:  605 

198.  A  purchase  for  value  and  in  good 
faith,  by  a  third  person,  of  a  foreign  bill  of 
exchange  from  the  one  by  whose  direction  it 
wns  drawn,  and  who  promised  to  pay  for  it, 
but  who  failed  to  do  so,  will  cut  off  the 
drawer's  right  to  stop  payment  on  the  draft 
because  of  the  nonreceint  by  him  of  the  pur- 
chase price.  Maver  v.  Heidelbach,  123  N.  Y. 
332,  25  N.  E.  416,  9:  850 

199.  A  note  given  to  an  unlicensed  prac- 
titioner for  medical  services  is  valid  in  the 
hands  of  a  bona  fide  purchaser,  notwith- 
standing the  provisions  of  Neb.  Comp.  Stat. 
art.  1,  requiring  all  persons  practising  medi- 
cine to  obtain  a  license,  and  providing  that 
no  person  shall  recover  any  sum  of  money 
for  any  medical  services  unless  he  has  ob- 
tained a  license,  and  making  it  unlawful  and 
a  misdemeanor  for  any  imlicensed  person  to 
practise  medicine.  Citizens'  State  Bank  v. 
Nore  (Neb.)  93  N.  W.  160,  60:  737 
Accommodation  paper. 

See  also  supra.  190,  191;  infra,  217,  218. 

200.  An  indorser  cannot  deny  the  validity 
of  a  oriirinal  note,  as  against  a  bona  fide 
holder,  although  the  indorsement  was  merely 
for  accommodation.  Binnev  v.  Globe  Nat. 
Bank,    150   Mass.   574,   23  N.   E.    380. 

6:  379 

201.  A  bona  fide  holder  for  value  of  a 
draft  accepted  and  delivered  to  the  drawer 
to  emble  him  to  raise  money  upon  it  is  not 
affected  by  the  fact  that  he  took  it  with 


264 


BILLS  AND  NOTES,  V.   a.  2. 


knowledge  that,  as  between  the  original 
parties,  it  was  merely  an  accommodation 
bill,  riopps  V.  Savage,  69  Md.  513,  16  Atl. 
133,  1:648 

202.  Accommodation  paper  of  a  corpora- 
tion is  not  void  in  the  hands  of  a  bona  fide 
purchaser,  under  a  statute  which  does  not 
expressly  declare  it  void,  although  it  makes 
it  unlawful  for  a  corporation  to  appi'opriate 
its  funds  to  any  purjrose  not  stated  in  its 
articles.  Farmers'  Nat.  Bank  v.  Sutton 
Mfg.  Co.  6  U.  S.  App.  312,  3  C.  C.  A.  1,  52 
Fed.  191,  17:  595 

203.  The  holder  for  value  and  without  no- 
tice of  notes  indorsed  by  a  business  corpor- 
ation for  the  accommodation  of  the  makers, 
and  not  in  the  usual  course  of  business, 
is  entitled  to  recover  against  the  corporation, 
if  it  had  the  general  power  to  bind  itself 
by  promissory  notes  and  contracts  of  in- 
dorsement. National  Park  Bank  v.  German- 
Am.  Mut.  Warehousing  &  S.  Go.  116  N.  Y, 
281.  22  N.  E.  567,  5:  673 
Rights  of  purchaser  from  bona  fide  holder. 

204.  The  general  rule  that  if  a  pei-son, 
with  knowledge  of  facts  which  will  defeat 
a  promissory  note  in  the  hands  of  the  payee, 
purchases  it  from  a  bona  fide  holder  thereof, 
he  may  recover  thereon  upon  the  strength  of 
such  bona  fides,  does  not  apply  to  a  pur- 
chaser who  is  the  payee  of  the  note.  If  he 
sells  such  paper  to  an  innocent  third  person 
and  repurchases  it  for  value,  he  does  not 
thereby  become  possessed  of  any  better  right 
as  against  the  maker  than  he  possessed  in 
the  first  instance.  Andrews  v.  Robertson, 
111  Wis.  334,   87  N.  W.   190,  54:  673 

205.  A  transfer  of  a  negotiable  note  aft- 
er maturity  and  without  consideration,  for 
the  purpose  of  enabling  the  transferee  to 
bring  an  action  thereon  in  the  state,  will 
sustain  a  right  of  action  by  him  against  the 
maker  in  the  right  of  the  transferrer  when 
the  latter  is  a  bona  fide  holder  before  matu- 
ritv  for  value.  Edeerly  v.  Lawson,  176 
:\rass.  551,  57  N.  E.  1020,  51:  432 
Note  procured  by  fraud. 

For  Editorial  Notes,  see  infra,  VII.  §  22. 

206.  A  plea  that  a  negotiable  note  signed 
by  a  party  was  procured  by  deception  and 
fraud  in  representing  it  to  be  a  paper  of 
diflVrcnt  character  is  not  good  against  a 
holder  for  value,  who  acquired  it  in  due 
cojirse  of  business  before  maturity,  unless 
the  plea  aver  notice  to  the  holder  of  such 
fraud  and  deception  before  he  acqiiired  the 
note.  Tower  v.  Whip.  53  W.  Va.  158,  44 
R.  E.  179,  63:  937 

207.  An  illiterate  maker  of  a  note  and 
mortgage  for  .$1,000,  who  is  fraudulently  in- 
duced to  sign  them  supposing  that  he  is 
sitrning  a  lease  and  a  note  for  $100  to  a 
different  payee,  is  not  liable  on  the  note, 
even  when  it  is  in  the  hands  of  an  innocent 
purchaser,  unless  he  is  guilty  of  ncglisrence 
in  making  it,  since  he  was  never  a  party  to 
such  contract.  Green  v.  Wilkie,  98  Iowa,  74, 
6fi  N.  W.  1040,  30:  434 
Note  hv  incomop'^ent  person. 

For  Editorial  Notes,  see  infra.  VIT.  §  22. 

208.  A  note  sii.'ncd  by  a  persmi  mentally 
incapacitated   although   negotiable  in   form, 


is  not  within  the  rule  of  commercial  law 
which  protects  negotiable  paper  in  the  hands 
of  a  bona  fide  holder  for  vaiue  against  de- 
fenses to  which  it  was  subject  in  the  hands 
of  the  payee,  but  the  purchaser  takes  it 
charged  with  notice  of  the  maker's  disabil- 
ity and  occupies  the  same  position  as 
against  him  as  the  pavee.  Hosier  v.  Heard. 
54  Ohio  St.  398,  43  N.  E.  1040,  35:  161 

Stolen  note. 

209.  No  liability  in  favor  of  a  bona  fide 
purchaser  of  a  negotiable  paper  attaches  to 
the  maker,  where  it  was  drawn  and  signed, 
but  not  delivered  or  intended  to  be  delivered, 
but  was  obtained  by  the  payee  by  theft, 
without  gross  carelessness  or  recklessness 
on  the  part  of  the  maker.  Salley  v.  Terrill, 
95  Me.  553,  60  Atl.  896,  55:  730 
Wagering  contracts  or  against  public  policy. 

210.  A  promissory  note  given  to  stop  a 
criminal  prosecution  is  for  an  "immoral  and 
illegal  consideration,"  and  invalid  even  in 
the  hands  of  a  bona  fide  purchaser  for  value 
before  maturity,  under  Ga.  Civ.  Code,  §  3694, 
protecting  such  holder  except  against  cer- 
tain defenses,  including  "immoral  and  ille- 
gal consideration."  Jones  v.  Dannenberg  Co. 
112  Ga.  426,  37  S.  E.  729.  52:  271 

211.  A  negotiable  note  given  for  differ- 
ences on  a  settlement  of  an  illegal  option 
contract  which  the  statute  expressly  de- 
clares shall  be  void  is  not  of  itself  void  in 
the  hands  of  an  innocent  holder  for  value 
before  maturity,  unless  the  statute  ex- 
pressly or  by  necessary  implication  declares 
that  such  note  shall  be  void.  Pone  v. 
Hanke,  155  111.  617,  40  N.  E.  839,       28:  568 

212.  A  negotiable  note  is  not  valid,  even 
in  the  hands  of  a  bona  fide  holder,  where  it 
was  given  in  consideration  of  a  wager  con- 
tract, which  is  made  a  crime  by  statute,  a 
transfer  of  such  note  to  a  party  ignorant  of 
its  illegality  being  also  made  a  crime,  al- 
though the  statute  does  not  expressly  de- 
clare that  such  notes  shall  be  void  in  the 
hands  of  innocent  holders.  Snoddv  v.  Amer- 
ican Nat.  Bank,  88  Tenn.  573,  13  S.  W.  127, 

7:  705 
Duress. 

213.  The  defense  of  duress  is  one  of  the 
defenses  to  negotiable  paper  which  is  cut  oflf 
by  transfer  to  a  bona  fide  holder.  Mack  v. 
Prang,  104  Wis.  1,  79  N.  W.  770,  45:  407 
Spurious  indorsement. 

214.  The  drawee  of  a  draft  cannot  be 
compelled  to  make  payment  to  one  who 
holds  under  a  spurious  indorsement,  al- 
though the  draft  was  taken  in  good  faith 
in  due  course  of  business.  Beattie  v.  Nation- 
al Bank,  174  111.  571,  51  N.  E.  602,        43:  654 

215.  Title  to  a  bill  of  exchange  is  not 
transferred  by  indorsement  of  one  bearing 
the  name  of  the  payee,  but  who  was  in 
fact  a  stranger  to  the  bill,  and  who  ac- 
quired possession  of  it  by  mistake.  Id. 
Taken  during  days  of  grace. 

216.  The  transfer  of  a  negotiable  note  on 
the  second  day  of  grace  is  before  maturity 
for  the  ])urpnse  of  conferring  ri<irhts  on  a 
bona  fide  purchaser.  Haug  v.  Riley,  101  Ga. 
372,  29  S.  E.  44,  40:  244 


BILLS  AND  NOTES.  V.  b,   1,  2. 


2C5 


Payment  to  other  party. 
See  also  supra,  193. 

217.  Payment  of  a  negotiable  note  by  one 
of  the  joint  makers,  for  whose  accommoda- 
tion it  was  signed  by  the  other,  will  not 
discharge  the  latter  as  against  a  bona  fide 
holder  to  whom  tne  note  is  indorsed  be- 
fore maturity  after  such  payment.  Haug  v. 
Kiley,  101  Ga.  372,  29  S.  E.  44,         40:  244 

218.  Payments  by  the  maker  of  a  note, 
which  are  not  indorsed  upon  it,  are  of  no 
effect  as  against  a  subsequent  bona  fide  pur- 
chaser of  the  note  before  maturity  without 
notice  of  the  payments.  Kernohan  v.  Dur- 
ham, 48  Ohio  St.  1,  26  N.  E.  982,  12:  41 
Extent  of  recovery. 

For  Editorial  Notes,"  see  infra,  VII.  §  35. 

219.  The  bona  fide  holder  of  a  note  pro- 
cured by  fraud  can  recover  only  to  the  ex- 
tent of  the  sum  actually  paid  by  him  for  it. 
Oppenheimer  v.  Farmers'  &  M.'^Bank,  97 
Teiin.  19,  36  S.  W.  705,  33:  767 

220.  A  bona  fide  holder  of  a  note  the  con- 
sideration for  which  has  failed  in  part  as 
between  the  original  parties  is  not  limited, 
by  the  fact  that  it  was  taken  as  collateral 
security,  to  recovery  only  of  the  amount  for 
which  it  was  valid  as  between  the  original 
parties,  unless  he  had  notice  of  the  equities 
loetween  them,  but  may  recover  at  least  the 
amount  for  which  it  was  pledged.  Bank  of 
Edgefield  v.  Farmers  Co-op.  Mfg.  Co.  2  U. 
S.  App.  282,  2  C.  C.  A.  637,  52  Fed.  98, 

18:  201 

221.  An  indorsee  of  a  promissory  note 
given  and  transferred  for  value  may  recov- 
er the  whole  amount  from  the  maker,  al- 
though a  portion  of  such  amount  has  been 
paid  by  the  receiver  in  insolvencj'^  of  the  in- 
dorser,  and  hold  tbe  judgment  pro  tanto 
as  trustee  for  the  indorser,  since  upon  the 
merger  of  the  note  in  judgment  the  indorser 
can  only  proceed  through  the  judgment  or 
against  its  proceeds,  and  such  judgment  and 
payment  thereunder  will  discharge  the  note 
utterly.  Madison  Square  Bank  v.  Pierce, 
137  N.  Y.  444,  33  N.  E.  557,  20:  335 

b.  Who  are  Protected  as  Bona  Fide  Purchas- 
ers. 

1.  In  General. 

Of  Check,  see  Checks,  39-42. 

Burden   of  Proof  as  to,  see  Evidence,  671- 

673. 
For  Editorial  Notes,  see  infra,  VTI.  §  21. 

222.  The  payment  of  value  for  negotiable 
paper  is  never  conclusive  upon  the  question 
of  the  bona  fides  of  its  purchase,  excepting 
in  the  absence  of  evidence  tending  to  show 
bad  faith  or  notice  on  the  part  of  the  pur- 
chaser of  equities  in  favor  of  the  maker. 
Canajoharie  Nat.  Bank  v.  Diefendorf,  123  N. 
Y.  191.  25  N.  E.  402,  10:  676 

223.  In  the  absence  of  actual  or  construct- 
■  ive  notice  of  defect  of  title,  fraud,  or  other 

circumstance  which  would  vitiate  the  title, 
a  purchaser  of  negotiable  paper  before  ma- 
turity, for  a  valuable  consideration,  is 
under  no  duty  to  make  inquiry  as  to  how 
the   holder   acquired   it.     Merchants'    &   M. 


Nat.  Bank  v.  Ohio  Valley  Furniture  Co.  57 
W.  Va.  625,  50  S.  E.  880,  70:  312 

224.  A  guardian  is  a  bona  fide  holder  of  an 
unmatured  note  taken  from  a  former  joint 
guardian,  who  has  resigned,  to  pay  an  in- 
debtedness to  the  ward  for  property  which 
the  resigning  guardian  has  had  and  failed 
to  account  for.  Mack  v.  Prang,  104  Wis.  1, 
79  N.  W.  770,  45:  407 

225.  The  transferee  of  a  note  by  an  in- 
dorsement of  a  guaranty  thereon  waiving 
notice  of  protest  and  demand  is  an  indorsee 
within  the  rule  protecting  an  innocent  pur- 
chaser of  such  paper  for  value  and  oefore 
maturity,  against  defenses  good  between  the 
original  parties.  Dunham  v.  Peterson,  5 
N.  D.  414,  67  N.  W.  293,  36:232 

226.  An  assignee  of  negotiable  notes  is  not 
a  bona  fide  purchaser  as  between  himself  and 
a  prior  assignee  of  other  notes  secured  by 
the  same  mortgage  or  vendor'.s  lien,  with  re- 
spect to  rights  in  such  security.  Nashville 
Trust  Co.  V.  Smythe,  94  Tenn.  513,  29  S.  W. 
903,  .  27 :  663 

227.  One  who  takes  title  to  a  promissory 
note  payable  to  order,  but  not  indorsed,  un- 
der a  mere  assignment  of  the  note  and  a 
mortgage  securing  it,  cannot  claim  the  pro- 
tection of  the  law  merchant,  but  holds  the 
notes  subject  to  the  equities  that  would 
affect  it  in  tne  hands  of  his  assignor.  Gal- 
usha  V.  Sherman,  105  Wis.  263,  81  N.  W. 
495,  47:417 
Carelessness  of  purchaser. 

228.  Evidence  of  gross  carelessness  in  the 
purchase  of  negotiable  paper  may  be  con- 
sidered as  tending  to  prove  bad  faith  on  the 
part  of  the  purchaser,  which  will  prevent 
his  claiming  to  hold  the  paper  free  from 
equities  on  the  part  of  the  maker.  Canajo- 
harie Nat.  Bank  v.  Diefendorf,  123  N.  Y. 
191,  25  N.  E.   402,  10:  676 

229.  One  who  takes  a  note  without  ob- 
serving that  it  does  not  name  the  payee,  or 
contain  a  blank  for  the  insertion  of  his 
name,  is  so  negligent  that  he  cannot  claim 
an  estoppel  of  the  maker  to  set  up  the  de- 
fense that  the  note .  has  been  used  for  a 
purpose  not  intended  by  him.  Smith  v. 
Willing,   123  Wis.  377,   101   N.  W.  692, 

68:  940 
Reliance  on  security. 

230.  One  who  takes  a  negotiable  note  rely- 
ing wholly  upon  the  sufficiency  of  mortgage 
security,  or  for  the  purpose  of  acquiring  the 
mortgaged  property  by  foreclosure,  and 
without  inquiry  or  care  as  to  the  financial . 
standing  of  the  makers  of  the  note,  is  noi 
thereby  precluded  from  being  a  bona  fide 
holder  of  the  note,  when  he  takes  it  for  full 
consideration,  before  maturity,  in  the  ordi- 
nary course  of  business.  Christensen  v. 
Farmers'  Warehouse  Asso.  5  N.  D.  438,  67 
N.  W.  300,  .32:  730 

2.  Knowledge;  Notice;  Facts  Putting  on  In- 
quiry. 

I  Note  Discounted  by  Bank,  see  Banks,  282- 

285. 
Burden   of   Proof  as  to,   see   Evidence,  305, 

671. 
For  Editorial  Notes,  see  infra,  VII.  §  21. 


266 


BILLS  AND  NOTES,  V.  b,  2. 


231.  Mere  negligence  in  making  inquiries 
as  to  the  validity  of  negotiable  paper  before 
purchasing  does  not  charge  one  wibh  notice 
of  infirmities.  Central  State  Bank  v.  Spur- 
lin,  111  Iowa,  187,  82  N.  W.  493,        49:  661 

232.  The  letters  "C.  I.  P.,"  preceding  the 
signature  on  the  face  of  a  note,  are  not 
alone  sufficient  notice  that  it  was  given  for  a 
patent  named  "Chapin  Iron  Process,"  so  as 
to  bring  it  within  Mill.  &  V.  (Tenn.)  Code, 
§  2481,  providing  that  a  note  given  for  an 
interest  in  a  patent  shall  be  subject  in  any 
holder's  hands  to  all  defenses  against  the 
original  payee,  when  the  fact  that  it  was 
so  given  appears  on  its  face.  First  Nat.  Bank 
v.  Stockell,  92  Tenn.  252,  21  S.W.  523, 

20:  605 

233.  Dishonor  of  the  first  to  mature  of 
several  notes  given  upon  the  same  considera- 
tion, but  not  showing  that  fact  upon  their 
face,  is  no  notice  to  a  subsequent  indorsee 
for  value  before  maturity  of  the  other  notes, 
of  the  equities  existing  between  the  original 
parties.  Bank  of  Edgefiejd  v.  Farmers'  Co- 
Op.  Mfg.  Co.  2  U.  S.  App.  282,  2  C.  C.  A.  637, 
52  Fed.  98,  18:  201 

•234.  Letters  by  the  holder  of  drafts  in- 
dorsed in  blank,  to  a  bank  with  w^hich  he  had 
rediscounted  them,  referring  to  his  account 
and  to  the  drafts  as  "discounts"  and  "accept- 
ances" of  the  drawer,  are  not  notice  that 
such  liolder  is  not  the  absolute  owner.  Ger- 
man Nat.  Bank  v.  Coors,  14  Colo.  202.  23 
Pac.  328,  7:  845 

235.  A  recital  in  a  promissory  note  that  it 
is  given  for  a  payment  on  land  that  day 
purchased  does  not  constitute  notice  that 
the  sale  of  the  land  was  oral,  .so  as  to  af- 
fect the  rights  of  an  indorsee  in  case  the  sale 
of  the  land  is  rescinded.  Ferress  v.  Tavel, 
87  Tenn.  380,  11  S.  W.  93,  3r414 

236.  Indorsees  of  a  note  are  not  put  upon 
inquiry  as  to  a  subsequent  failure  of  con- 
sideration, by  a  statement  or  recital  in  the 
note  that  it  is  given  for  the  privilege  of 
hanging  advertising  signs  in  street  cars  after 
i\  certain  subsequent  date.  Siegel  v.  Chicajro 
Trust  &  Sav.  Bank,  131  111.  569,  23  N.  E.  417, 

7:537 

237.  Knowledge  of  a  warranty  on  a  sale 
in  which  a  note  was  given  will  not  affect  the 
rights  of  a  bona  fide  purchaser  of  the  note 
for  value  before  maturity,  if  he  had  no 
knowledge  of  the  breach  of  the  warranty. 
Aliller  V.  Ottawav,  81  Mich.  196,  45  N.  W. 
005.  ■  8:  428 

238.  A  bnnk  is  a  bona  fide  holder  for  value 
of  a  draft  within  the  rule  that,  if  the  drawee 
pays  it  while  in  such  holder's  hands,  be  will 
be  concluded  by  the  act,  although  the  draft 
proves  to  be  a  forgery,  where  it  has  credit- 
ed it  to  the  account  of  the  payee,  who  had 
become  its  customer  upon  presenting  a  letter 
of  introduction  from  another  bank  showing 
his  genuine  signature,  and  has  honored  his 
check  for  the  amount  and  indorsed  it  "For 
collectif)n"  and  forwarded  it  for  that  pur- 
pose,  although   the    name   of   the    depositor 

,was  fictitious  and  many  things  about  his 
business  would  have  aroused  suspicion  had 
it  been  investigated,  if  there  was  nothing 
about   his   appearance   or   actions,   or   about 


the  draft  itself,  to  indicate  that  it  was  not 
genuine.  Northwestern  Nat.  Bank  v.  Bank 
of  Commerce,  107  Mo.  402,  17  S.  W.  982, 

15:  102 

239.  A  party  who  takes  negotiable  paper 
before  maturity,  for  a  valuable  considera- 
tion, without  knowledge  of  defect  of  title, 
and  in  good  faith,  obtains  indefeasible  title 
thereto,  although  at  the  time  of  the  purchase 
he  has  knowledge  of  circumstances  which  are 
sufficient  to  excite,  in  the  mind  oi  a  pru- 
dent man,  a  suspicion  of  want  or  defect  of 
title,  and  is  grossly  negligent  in  taking  it. 
Merchants'  &  M.  Nat.  Bank  v.  Ohio  Valley 
Furniture  Co.  57  W.  Va.  625,  50  S.  E.  880, 

70:  312 

240.  One  who  has  destroyed  his  prima 
facie  title  to  negotiable  paper,  arising  from 
the  fact  of  possession,  by  aidmitting  that  he 
has  no  title,  cannot  restore  it  by  a  mere 
verbal  claim  that  he  has  since  obtained  ti- 
tle or  the  right  to  discount  the  paper  for 
his  own  benefit;  and  a  purchaser  who  is  put 
on  inquiry  by  sufficient  knowledge  cannot 
rely  upon  information  imparted  by  one 
whose  interest  it  is  to  deceive  him.  Id. 

241.  The  purchase  from  strangers  at  a  dis- 
count of  20  per  cent,  of  a  note,  one  maker 
of  which  was  known  to  be  perfectly  solvent, 
does  not  charge  a  bank  with  constructive 
notice  of  fraud  in  procuring  the  note,  when 
the  bank  was  accustomed  to  discount  notes 
of  solvent  parties  at  from  12  to  25  per  cent 
per  annum.  Oppenheimer  v.  Farmers'  &  M. 
Bank,  97  T-enn.  19,  36  S.  W.  705,  33:  767 

242.  Knowledge  of  the  purchaser  of  a  note 
at  20  per  cent  discount,  who  asked  the  seller 
to  keep  quiet  about  it,  that  it  was  given  for 
"hulless  oats"  to  a  company  which  he  knew 
was  engaged  in  selling  such  oats,  with  proof 
that  the  seller  of  the  note  knew  the  oats 
were  worthless,  is  sufficient  to  justify  a 
finding  that  he  was  not  a  bona  fide  purchas- 
er, where  the  oats  were  purchased  at  an 
exorbitant  price  with  an  agreement  that  the 
company  should  sell  again  for  the  maker  of 
the  note  a  still  larger  quantity  of  oats  at 
the  same  price  per  bushel.  Griffith  v.  Ship- 
ley, 74  Md.  591,  22  Atl.  1107,  14:  405 

243.  Negotiable  notes  bought  by  a  bank 
cashier  cannot,  as  matter  of  law,  be  said  to 
have  been  purchased  in  good  faith  in  the 
usual  course  of  business  so  as  to  cut  off"  the 
defense  of  fraudulent  inception  on  the  part 
of  the  maker,  a  farmer  known  to  the  cashier, 
who  had  never  engaged  in  any  business  re- 
quiring the  discounting  of  paper  to  the  ex- 
tent represented  by  the  notes,  which  were 
executed  200  miles  from  home,  if  they  were 
purchased  at  a  usurious  rate  of  interest 
from  the  payee,  a  stranger,  without  any  in- 
quiry on  the  part  of  the  cashier  as  to  their 
origin  or  the  existence  of  equities  in  favor 
of  the  maker;  the  question  of  good  faith  is 
for  the  jurv.  Canajoharie  Nat.  Bank  v.  Die- 
fendorf,'  123  N.  Y.  191,  25  N.  E.  402,  10:  676 
Note  taken  from  partner. 

244.  The  indorsement  of  a  firm  name  on  a 
note  to  the  firm  from  one  partner,  made  in 
his  handwriting,  and  his  discount  of  the  note 
to  his  own  credit  at  a  bank,  are  sufficient  to 
put   the   banker  upon   inquiry'   and  prevent 


BILLS  AND  NOTES,  V.  b.  3. 


him  from  being  a  bona  fide  holder,  if  the 
indorsement  was  unauthorized.  Brown  v. 
Pettit,    178   Pa.    17,    35   Atl.   865,       34:  723 

•J45.  The  possession  of  a  negotiable  note 
by  a  firm  to  which  one  of  the  makers  be- 
longs will  not  charge  a  purchaser  of  the 
note  on  the  second  d^y  of  grace  with  notice 
that  the  note  has  been  paid.  Haug  v.  Riley, 
101  Ga.  372,  29  S.  E.  44,  40:  244 

Taken  from  trustee. 

^6.  A  note  is  not  subjected  to  equities  in 
the  hands  of  a  holder  for  value  by  the  fact 
that  it  is  payable  to  a  person,  "trustee,"  if 
inquiry  would  have  disclosed  the  fact  that 
the  word  was  merely  descriptive,  and  that 
the  note  was  made  to  him  for  the  purpose  of 
enabling  him  to  turn  it  over  in  consumma- 
tion of  a  subscription  to  the  stock  of  a  syn- 
dicate, which  was  accomplished  by  his  in- 
dorsement and  transfer.  Tradesmen's  Nat. 
Bank  v.  Looney,  99  Tenn.  278,  42,  S.  W.  149, 

38:  837 
Taken  from  officer  of  corporation. 

247.  One  who  takes  the  negotiable  note  of 
a  corporation  from  its  president  as  collater- 
al security  for  a  loan  to  him  or  a  firm  to 
which  he  belongs  is  not  precluded  from  claim- 
ing as  a  bona  fide  holder  by  reason  of  the 
fact  that  the  note  was  signed  by  the  pres- 
ident, where  it  was  payable  to  a  third  per- 
son who  had  indorsed  it.  Cheever  v.  Pitts- 
burjr.  C.  &  L.  E.  R.  Co.  150  N.  Y.  59,  44  N. 
E.  701,  34:  69 
Taken  from  agent. 

248.  If  the  holder  of  n^'gotiable  paper  in- 
forms a  person  intending  to  purchase  it  that 
he  has  no  title  to  it,  or  that  he  holds  it  in 
the  capacity  of  agent  for  the  maker  or  other 
party  to  it,  and  afterwards  a  sale  of  the 
paper  is  effected  between  the  parties,  the 
purchaser  takes  it  subject  to  the  equities 
existing  between  the  antecedent  parties. 
Merchants'  &  M.  Nat.  Bank  v.  Ohio  Vallev 
Furniture  Co.  57  W.  Va.  625,  50  S.  E.  880, 

70:  312 

249.  An  agent  having  in  his  possession  for 
discount,  sale,  safekeeping,  or  other  purpos- 
es, on  behalf  of  his  principal,  bills,  notes,  or 
other  paper  belonging  to  his  principal,  in- 
dorsed in  blank  or  in  such  other  form  as  to 
permit  transfer  of  title  thereto  by  mere 
delivery,  may  be  regarded,  by  strangers  hav- 
ing no  notice  of  the  agency  or  the  capacity 
in  which  such  paper  is  held,  as  the  owner 
thereof,  and  dealt  with  accordingly  in  re- 
spect to  it.  Id. 
For  maker's  accammodation. 

250.  The  fact  that  ttie  maker  of  a  promis- 
sory note  procures  it  to  be  discounted  for 
his  own  benefit  is,  if  unexplained,  notice  to 
the  discounter  that  the  indorsement  is  not 
in  the  usual  course  of  business,  but  is  for 
the  accommodation  of  the  maker.  National 
Park  Bank  v.  German-Am.  Mut.  Warehous- 
ing &  S.  €o.  116  N.  Y.  281,  22  N.  E.  567, 

5:  673 

3.  Taken  as  Collateral  Security  or  for  An- 
tecedent Debt. 

251.  One  who  takes  a  promissory  note  in 
payment  of  an.  antecedent  debt  in  the  usual 


course  of  business  may  be  a  purchaser  for 
value  within  the  rule  as  to  negotiable  paper. 
Dunham  v.  Peterson,  5  N.  D.  414,  67  N.  W. 
293,  36:  232 

252.  A  purchase  for  value  in  due  course  of 
trade,  of  a  note,  is  made  by  a  bank  which 
discounts  it  and  applies  the  proceeds  to  the 
payment  of  a  prior  note  due  by  the  inaorser 
and  an  overdraft  in  a  bank  in  which  the  in- 
dorser  is  interested.  Tradesmen's  Nat.  Bank 
V.  Looney,  99  Tenn.  278,  42  S.  W.  149, 

38:  837 

253.  The  actual  and  absolute  extinguish- 
ment of  a  pre-existing  debt  in  consideration 
of  a  transfer  to  the  creditor  of  negotiable 
paper  will  constitute  the  transferee  a  holder 
for  value  so  as  to  be  protected  against  prior 
equities  therein.  Mayer  v.  Heddelbach,  123 
N.  Y.  332,  25  N.  E.  416,  9:  850 

254.  Where  a  depositor  in  a  bank  having 
sufficient  funds  standing  to  his  credit  ten- 
ders to  it  his  check  upon  it  in  payment  for 
negotiable  paper  which  it  has  for  sale, 
and  the  bank  accepts  the  check,  charges  it 
against  the  deposit,  files  it  as  a  voucher,  and 
delivers  over  the  paper  purchased,  tile  pur- 
chaser is  a  holder  for  value,  as  the  antece- 
dent debt  is  pro  tanto  extinguished.  Id. 

255.  One  who  takes  a  promissory  note  in 
payment  of  a  pre-existing  debt  holds  it  sub- 
ject to  any  defense  that  could  have  been 
made  available  against  the  original  payee. 
Ferress  v.  Tavel,  87  Tenn.  386,  11  S.  W.' 93, 

3:  414 
Debt  of  third  person. 

256.  Brokers  who  take  from  its  president 
drafts  of  a  bank  playable  to  them  and  signed 
by  him,  in  payment  of  his  individual  debt 
to  them,  are  not  bona  fide  purchasers  so  as 
to  be  able  to  hold  the  proceeds  against  the 
bank  in  case  he  had  no  authority  to  draw  the 
drafts.  Lamson  v.  Beard,  36  C.  C.  A.  56, 
94  Fed.  30,  45:  822 

257.  One  who  executes  an  instrument  to 
enable  his  son  to  borrow  money  from  a  par- 
ticular bank  for  his  own  use  has  a  merito- 
rious defense  to  an  action  upon  it  in  the 
hands  of  one  who  has  derived  his  title 
through  an  attempt  to  use  the  instrument 
in  satisfaction  of  a  debt  of  a  corporation  of 
which  his  son  is  a  member.  Smith  v.  Will- 
ing, 123  Wis.  377,  101  N.  W.  692.  68:  940 
Taken  as  callateral  security. 

258.  Negotiable  paper  held  as  collateral 
security  for  a  pre-existing  debt  is  open  in 
the  hands  of  the  holder  to  all  defenses 
which  could  have  been  made  against  it  in  the 
hands  of  the  original  owner,  whether  there 
was  notice  of  them  or  not.  Vann  v.  Mar- 
bury,  100  Ala.  438,  14  So.  273,  23:  325 

259.  A  bank  to  which  a  non-negotiable 
note  is  made  payable,  instead  of  to  a  corpo- 
ration with  whom  the  transaction  in  wh\ch 
the  note  arose  was  had,  and  which  holds  it 
as  collateral  security  for  an  existing  debt 
of  such  corporation,  takes  subject  to  all  de- 
fenses which  might  nave  been  made  had  the 
note  been  made  to  the  corporation,  except 
such  as  arise  from  subsequent  transactions 
or  subsequent  assignments  of  claims  against 
the  corporation.  Stockton  Sav.  &  L.  Soc.  v. 
Giddings,  96  Cal.  84,  10  Pac.  1016,       21 :  406 


268 


BILLS  AND  NOTES.  VL  a,   b. 


260.  An  indorsee  of  a  negotiable  note  tak- 
en as  collateral  security  for  a  pre-existing 
debt,  there  being  no  extensiion  of  time  of 
payment  or  other  new  consideration,  except 
such  as  may  be  deemed  to  arise  from  the  ac- 
ceptance of  the  paper,  is  a  holder  for  value 
and  in  due  course  of  business,  and,  in  the 
absence  of  any  circumstances  charging  him 
with  notice,  is  protected  against  a  claim  of 
payment  made  to  the  original  payee.  Birk- 
et'v.  Eiward,  68  Kan.  295,  74  Pac.   1100, 

64:  568 

261.  A  bank  which,  on  making  a  loan, 
takes  the  borrower's  note,  with  other  notes 
payable  to  the  borrower,  regularly  indorsed 
and  attached  thereto  as  collateral  security 
before  their  maturitj^  and  enters  up  the  pro- 
ceeds to  the  borrower's  individual  account, 
is  a  bona  fide  holder  for  value  in  dvie  course 
of  trade  of  such  other  notes,  so  as  to  render 
unavailable  defenses  against  the  original 
payee.  First  Nat.  Bank  v.  Stoekell,  92 
Tcnn.  252,  21  S.  W.  523,  20:  605 


VL  Actions  and  Defenses;  Maturity, 
a.  In    General;    Right    of   Indorser    to    Sue. 

Right  of  Action  on  Note  Transferred  after 
Maturity,  see  supra,  205. 

Joining  Action  on  Note  for  Principal  and 
for  Interest,  see  Action  or  Suit,  92. 

Payment  of  Note  for  Purchase  Price  as  Con- 
dition Precedent  to  Action  for  Breach, 
see  Action   or   Suit,   21. 

Successive  Actions  on  Mortgage  Securing 
Series  of  Notes,  see  Action  or  Suit,  74. 

Judgment  bv  Confession  on,  see  Judgment, 
8,  10,  17. 

Time  of  Entering  Judgment  on,  see  Judg- 
ment, 70. 

Right  of  Surety  Paying  Judgment  to  Col- 
lect from   Principal,  see  .Judgment,  .384. 

Right  to  Jury  Trial,  see  Jury,  11. 

Assignee's  Kiglit  to  Sue,  see  Parties,  88-90. 

Payee  as  Party  Defendant,  see  Parties,  140. 

Bringing  in  Additional  Defendants,  see  Par- 
ties, 215. 

Action  on  Note  Given  by  Firm  to  one  Mem- 
ber, sec!  Partnership,  139. 

Setoff  by  Indorser,  see  Set-Off  and  Counter- 
claim, 24. 

For  Editorial  Notes,  .see  infra,  VII.  §§  31-38. 

262.  .Mere  jjromises  to  pay  a  forged  note 
do  not  lay  a  foiindation  for  liability,  in  the 
absence;  of  circumstances  to  create  an  es- 
toppel, and  when  the  promises  are  made  aft- 
er maturity,  without  consideration  and  with- 
out full  knowledge  of  the  material  facts  in 
relation  to  the  note.  Barry  v.  Kirkland.  6 
Ariz.  1.52  Pac.  771,  40:  471 

Right  of  indorser  to  sue. 
See  also  .supra,  180. 
For  Editorial  Notes,  see  infra,  VII.  §  32. 

2(i3.  The  indorsement  of  a  note  and  de- 
livery of  it  as  collateral  security  for  a  loan 
will  not  prevent  the  payee  from  maintain- 
ini^  stiit  upon  it  in  case  he  regains  possession 
of  it  for  that  purpose,  lliitchings  v.  Rein- 
halter,  2.3  R.  I.  518,  51  Atl.  420,  58:  (180 

264.  Payment   of   a    note  by   a    new   note 


of  an  indorser  which  is  accepted  in  full  sat- 
isfaction, and  a  transfer  of  the  note  to  the 
indorser  by  an  indorsement  without  re- 
course, give  him  an  immediate  right  of  ac- 
tion against  the  maker,  either  on  the  note  as 
equitable  assignee,  or  for  money  paid  to 
the  maker's  use.  Stanley  v.  McElrath,  86 
Cal.  449,  25  Pac.  16,  i  10:  545 

265.  'Ihe  maker  of  a  note  cannot  defeat 
a  suit  against  him  by  an  indorser,  who  has 
paid  it,  on  the  ground  thai  the  indorser  did 
not  receive  such  notice  of  default  a^  was 
necessary  to  fix  his  liability  on  the  note. 

Id. 

266.  The  fact  that  an  accommodation  in- 
dorser who  has  been  compelled  to  pay  a  bill 
of  exchange  knew  at  the  time  of  the  in- 
dorsement that  the  acceptance  of  the  bill 
was  for  accommodation  will  not  prevent  his 
recovery  thereon  against  the  accommodation 
acceptor.  Gillespie  v.  Campbell,  39  Fed. 
724,  5:  698 

267.  That  the  proceeds  of  a  bill  of  ex- 
change indorsed  for  accommodation  when 
discounted  were  applied  by  the  drawer  to 
the  payment  of  other  paper  on  which  the 
same  person  was  an  indorser  is  not  a  defense 
in  favor  of  an  accommodation  acceptor  of  the 
bill  against  the  indorser,  where  the  latter 
has  been  compelled  to  pay  it  on  maturitv. 

Id. 

268.  A  written  assignment  of  a  negotiable 
note  on  a  separate  and  unattached  piece  of 
paper  aoes  not  pass  the  legal  title,  or — at 
least  when  it  was  made  a  collateral  secu- 
rity and  has  been  surrendered  to  the  payee 
merely  for  the  purpose  of  collection — pre- 
clude him  from  bringing  action  on  the  note. 
Haug  V.  Riley,  101  Ga.  372.  29  S.  E.  44, 

40:  244 

b.    Maturity ;    Extension. 

Effect  of  Uncertainty  as  to  Maturity  on  Va- 
lidity, see  supra,  16-18. 

Effect  of  Uncertainty  as  to,  on  Negotiabil- 
ity, see  supra,  63-70. 

Provision  for  Higher  Rate  of  Interest  after 
Maturity,  see  supra,  90-92. 

Rights  of  One  Taking  Assignment  of  Note 
after  Maturity,  see  supra,  187-191. 

Maturing  of  Notes  by  Maker's  Petition  for 
Bankruptcy,  see  Bankruptcy,  30. 

Maturitv  of  Certificate  of  Deposit,  see 
Banks,  189-191. 

.ludgment  before  Maturity,  see  .Judgment, 
54. 

See  also  supra,   10,  43. 

For  Editorial  Notes,  see  infra,  VII.  §  30. 

269.  A  bill  of  exchange  reading  "One  hun- 
dred and  eighty  days,  pay  to  the  order  of." 
is  payable  one  hundred  and  eighty  days  aft- 
er date.  Tavlor  v.  ('itizens'  Sav.  Bank,  114 
Ky.  577,  71  "S.  W.  520,  61:  900 

270.  A  promis.sorv  note  on  demapd  '"pay- 
able when  payor  and  payee  mutually  agree" 
is  due  within  a  reasonable  time  if  the  payor 
will  not  agree.  Page  v.  Cook,  164  Mass.  116, 
41  N.  E.   115,  28:  759 

271.  A  note  for  value  received,  promising 
to  pay  a  certain  sum  at  the  maker's  "con- 


BILLS  AND  NOTES,  VL  c. 


venience  and  upon  this  express  condition, 
that"  he  is  "to  be  the  sole  judge  of  sucn 
convenience  and  time  of  payment,"  may  be 
enforced  by  an  action,  after  the  expiration 
of  a  reasonable  time,  on  demand  and  re- 
fusal of  payment.  It  does  not  give  the 
maker  the  sole  right  to  say  when  it  would 
suit  his  convenience  to  pay  it.  Smithers  v. 
Junker,  41  Fed.  101,  7:  2G4 

272.  A  promissory  note  payable  when  the 
United  States  pays  judgments  in  "Class  2'' 
of  the  Alabama  claims  was  due  when  judg- 
ments of  the  first  class  were  fully  paid,  and 
the  residue  of  the  fund  was  practically  ex- 
hausted in  the  fro  rata  payment  of  the 
second  class.  Powers  v.  Manning,  154  Mass. 
370,  28  N.  E.  290,  13:258 
Effect  of  provision  in  mortgage. 

273.  The  maturity  of  a  negotiable  prom- 
issory note  expressly  made  payable  in  the 
future  cannot  be  hastened  by  a'^lause  in  a 
mortgage  given  to  secure  it,  authorizing  the 
mortgagee  to  declare  the  "whole  sum"  to  be 
due  upon  default  in  any  provision  of  the 
mortgage.  White  v.  Miller,  52  Minn.  367,  54 
N.  W.  736,  19:673 

274.  The  mere  nonpayment  of  the  first  of 
two  notes,  secured  by  deed  of  trust,  without 
any  action  on  the  part  of  holders,  will  not 
render  the  other  note  due,  although  the  deed 
of  trust  provided  that  ui>on  default  in  pay- 
ment of  the  first  note  both  should  become 
immediatelv  due  and  payable.  Owings  v. 
McKenzie,  133  Mo.  323,  33  S.  W.  802, 

40:  154 
Excluding  Sunday. 
See  also  supra.  156. 
For  Editorial  Notes,  see  infra,  VIL  §  30. 

275.  A  negotiable  note  without  days  of 
gi'ace,  falling  due  according  to  its  face  upon 
Sunday,  is  not  payable  on  Saturday,  but  on 
the  following  Monday,  unless  that  day  is 
also  a  legal  holiday.  Hirshfield  v.  Ft.  Worth 
Nat.  Bank,  83  Tex.  452,  18  S.  W.  743,  15:  639 
Extension. 

As  Consideration  for  Promise,  see  Contracts, 
80. 

Extension  of  Lien  of  Mortgage  by,  see  Lim- 
itation of  Actions,  218. 

Effect  of,  on  Mortgage,  see  Mortgage,  127. 

Ratification  by  Sureties  of  Renewal,  see 
Principal  and  Surety,  1. 

Enforcement  of  Oral  Contract  to  Renew, 
see  Specific  Performance,  46. 

See  also  supra.  64,  65. 

276.  'I  lie  taking  of  interest  in  advance  on 
a  note  is.  in  the  absence  of  any  contrary 
agreement,  prima  facie  evidence  of  an  agree- 
ment to  forbear  collecting  the  note  during 
the  period  for  which  interest  is  paid.  Skelly 
v.  Bristol  Sav.  Bank.  63  Conn.  83,  26  Atl. 
474,  19:  599 

c.  Defenses. 


As  to  Notes  Transferred  or  Assigned,  see 
supra,  V.  a. 

Diversion  of  Note  as,  see  supra,  257. 

Bank's  Right  to  Recover  on  Note  Made  for 
Its  Accommodation,-  see  Banks.  295-207. 

Bank  President's  Lack  of  Authority  to  Ex- 
ecute, see  Banks,  34. 


Notes  Given  for  Purchase  of  Library  Site, 
see  Contracts,  797. 

Nonpossession  of  Note,  see  Contracts,  823. 

Right  to  Plead  Ultra  \^tres  as,  see  Corpora- 
tions, 174. 

Duress,  see  Duress^  9. 

Parol  Agreement  to  Procure  Another  Signer, 
see  Evidence,  1154. 

Parol  Evidence  as  to  Duplicate  Draft,  see 
Evidence,  1156. 

To  Note  for  Insurance  Premium,  see  Insur- 
ance, 651. 

Former  Judgment  as  Defense,  see  Judgment, 
236. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  40.  48,  56-58,  87,  92,  252,  253, 
256,  257.  259,   273. 

Defense  of  Surety,  see  Principal  and  Sure- 
ty, 3,  8,  11,  12,  25,  28,  29,  34.  35.  40-44. 

Usury,  Who  May  Set  up.  see  ITsury,  42-44. 

For  Editorial  Notes,  see  infra,  VII.  "§§  33-38. 

276a.  A  sound  reason,  inhering  in  the  same 
transaction  from  which  a  promissory  note 
springs,  why  the  holder  ought  not,  in  equity 
and  good  conscience,  to  recover  its  face 
value,  is  a  good  equitable  defense  to  it,  al- 
though this  defense  constitutes  neither  an 
offset  or  a  counterclaim,  nor  an  affirmative 
cause  of  action  against  the  holder  of  the 
note.  Williams  v.  Neelv,  67  C.  C.  A.  171, 
134  Fed.  1,  '  69:  2.32 

277.  The  liability  of  the  maker  of  a  note 
to  an  indorsee  is  not  affected  by  a  compro- 
mise of  a  suit  by  the  indorsee  against  the 
indorser  by  which  the  latter  is  permitted  to 
substitute  securities  in  lieu  of  his  liability 
as  indorser,  under  the  express  agreement 
that  the  liability  of  the  maker  shall  not 
be  affected,  and  that  when  any  money  is 
collected  from  the  maker  it  shall  be  ap- 
plied to  release  the  securities  so  deposited. 
Tradesmen's  Nat. 'Bank  v.  Looney,  99  Tenn. 
278,  42  S.  W.  149,  38:  837 

278.  The  other  makers  of  a  joint  note 
which  by  statute  is  made  joint  and  several 
remain  liable  for  the  amount  unpaid  on  it, 
including  the  sum  not  realized  by  a  suit 
against  one  maker  for  his  proportionate 
share,  although  that  proceeded  to  judgment 
and  execution  against  his  property.  Sully 
v.    Campbell,   99    Tenn.   434,   42    S.   W.    15, 

43:  161 
Note  signed  without  reading. 

279.  It  is  no  defense  to  an  action  on  a 
promissory  note,  that  it  does  not  contain  the 
agreement  which  the  maker  supposetl  it  to 
embody,  and  that  he  signed  it  without  read- 
ing it,  in  reliance  upon  representations  made 
by  the  party  who  drew  it,  where  there  was 
nothing  to  prevent  him  from  reading  it,  and 
it  was  not  signed  under  any  emer?ency  or 
in  consequence  of  any  actual  fraud  perpe- 
trated upon  him  at  the  time  of  its  execu- 
tion. Walton  Guano  Co.  v.  Copelan,  112  Ga. 
319,  37  S.  E.  411,  52:  268 
Promise  not  to  sue. 

Parol   Evidence   as  to,   see   Evidence,   11  Si- 
ll 53. 
For  Editorial  Notes,  see  infra,  VII.  §  33. 

280.  A  collateral  promise  never  to  sue  a 
note,  made  to  a  stranger  who  is  not  a  party 


270 


BILLS  AND  NOTES,  VL    c. 


to  the  note  or  to  the  suit,  is  not  a  good 
defense  to  a  suit  on  the  note  brought 
against  the  maker.  Marston  v.  Bigelow, 
150  Mass.  45,  22  N.  E.  71,  5:  43 

281.  A  son  who  is  the  maker  of  a  note 
cannot  avail  himself,  in  an  action  upon  the 
note,  of  a  promise  not  to  sue  the  note,  made 
for  his  benefit  to  his  father  by  the  plaintiff's 
intestate,  the  paj^ee  of  the  note.  Id. 

282.  A  promise  never  to  sue,  made  upon 
good  consideration,  to  the  maker  of  the 
note  himself,  would  operate  to  defeat  a  suit 
on  the  note.  Id. 
Agreement  to  substitute  other  note. 

283.  An  agent  who  made  a  note  in  his  own 
name  is  not  released  by  an  agreement  after 
its  maturity  between  the  payee  and  the 
principal  for  the  substitution  of  the  latter's 
note,  when  this  was  never  made.  Shuey  v. 
Adair.  18  Wash.  188,  51  Pac.  388,  39:  473 
Payment. 

Presumption  and  Burden  of  Proof  as  to,  see 
Evidence.  732-737. 

Payn)ent  to  Transferrer,  see  Payment,  28. 

Allegations  of  Readiness  to  Pay,  see  Plead- 
ings. 533,  534. 

See  also  supra.  103,  217,  218,  221. 

For  Editorial  Notes,  see  infra,  VII.  §  36. 

284.  A  remittance  to  the  owner,  of  the 
amount  of  a  negotiable  promissory  note  in- 
dorsed for  collection,  by  the  one  receiving 
it,  out  of  his  own  funds,  as  though  he  had 
in  fact  collected  the  note,  constitutes  a  pay- 
ment and  extinguishment  thereof,  and  not 
a  mere  transfer.  People's  &  Drovers'  Bank 
V.  Craitr,  63  Ohio  St.  374,  59  N.  E.  102. 

52:  872 

285.  The  mere  possession  of  a  negotiable 
instrument  indorsed  by  the  payee  in  blank 
is  prima  facie  evidence  of  the  holder's  right 
to  demand  and  receive  payment;  and  pay- 
ment to  such  holder  will  discharge  the  in- 
strument, when  made  in  good  faith  and  in 
ienorance  of  facts  which  impair  the  holder's 
title.  Drinkall  v.  Movius  State  Bank.  11  N. 
I),   in.  88  X.  W.  724.  57:  341 

2Sn.  Suit  cannnt  be  maintained  on  the  or- 
iginal note  after  it  has  been  surrendered  for 
a  new  note  and  judgment  taken  on  the  lat- 
ter, althoujih  the  judgment  is  uncollected. 
Dick  V.  Flanagan,  122  Ind.  277,  23  N.  E. 
705,  7:  590 

287.  Sealed  notes,  which  have  been  surren- 
dered up  and  canceled  by  a  valid  arrange- 
ment between  the  parties  thereto,  cannot 
afterwards  form  a  legal  cause  of  action  in 
favor  of  a  stranirer  asrainst  their  maker's 
estate.  McClure'v.  Melton.  .34  S.  C.  377, 
13   S.   E.  61.5,  13:  723 

288.  Payment  of  a  principal  debt  pending 
suit  on  a  note,  held  only  as  collateral  secu- 
ritv  leaves  it  subject  to  any  defense  that 
existed  against  the  pledgeor.  althoucrh  the 
suit  mnv  be  continued.  First  Nat.  Bank  v. 
Mann.  94  Tenn.  17.  27  S.  W.  1015,  27:  .565 
Waiver  of  limitations. 

289-290.  An  agreement  indorsed  on  a  note 
by  the  maker,  in  connection  with  a  small 
payment,  just  before  the  expiration  of  six 
years  from  its  date  and  of  five  years  from 
its  maturity,  not  to  take  advantage  of  the 
statute   of  limitations,   does   not   waive   the 


defense  of  the  statute  for  more  than  six 
years  from  the  making  of  the  agreement. 
Kellogg  v.  Dickinson,  147  Mass.  432,  18  N.  E. 
223,  1:  346 

Failure  of  consideration. 
Evidence    as   to,    see   Evidence,    1167,    1158, 

1833,  1834,  2062. 
See  also  supra,  220;    Gift,  17. 

291.  Mere  absence  from  the  record  of  one 
of  the  vendees  of  a  machine  who  was  not  a 
party  to  the  note  given  for  its  purchase 
price,  will  not  prevent  the  defendants,  in  a 
suit  upon  the  note,  from  setting  up  failure 
of  consideration  because  of  the  machine's 
proving  worthless.  Stockton  Sav.  &  L.  Soc. 
v.  Giddings,  96  Cal.  84,  10  Pac.  1016,    21:  406 

292.  A  partial  failure  of  consideration, 
which  results  from  a  defect  of  title,  is  a 
good  defense  pro  tanto  to  an  action  by  the 
vendor  upon  a  promissory  note  given  for 
the  purcnase  price  of  land  which  he  has  con- 
veyed with  covenants  of  warranty  and 
against  encumbrances.  Williams  v.  Neely, 
67  C.  C.  A.   171,  134  Fed.   1,  69:232 

293.  The  failure  of  a  vendee  under  a  bond 
for  title,  to  obtain  possession  of  the  prem- 
ises, is  no  defense  to  a  suit  on  a  note  given 
for  the  purchase  price,  where  it  appears  that 
he  not  only  never  desired  possession,  but 
also  that  he  could  have  obtained  possession 
at  any  time  on  demand.  Home  v.  Rodgers, 
110  Ga.  362,  35  S.  E.  715,  49:  176 

294.  One  who  bought  land,  paid  a  part  of 
the  purchase  money,  gave  a  promissory  note 
for  the  balance,  and  took  a  bond  for  titles 
with  knowledge  of  an  existing  encumbrance 
on  the  property,  and  who  subsequently  en- 
tered into  an  asrreement  with  the  vendor 
recognizing  liability  on  the  note,  and,  in 
effect,  the  promise  to  pay  therein  contained, 
upon  the  vendor's  removing  the  encum- 
brance, could  not  defeat  a  recovery  upon  the 
note  by  the  venaor  when  it  affirmatively  ap- 
peared that  the  latter  had  complied  with 
the  terms  of  the  agreement,  and  could,  and 
would,  on  the  payment  of  the  note,  nave 
made  the  vendee  a  good  title.  Id. 

295.  Where,  under  a  contract  of  sale,  the 
title  to  the  property  is  to  remain  in  the 
vendor  until  a  note  given  for  the  purchase 
money  is  paid,  and  the  vendee  has  posses- 
sion and  use  of  the  property,  it  is  no  de- 
fense to  an  action  on  the  note  that  the 
property  was  destroved  by  fire  before  the 
note  became  due.  Tiifts  v.  Griffin,  107  N.  C. 
47,  12  S.  E.  68,  10:  526 
Forged  paper. 

Alteration  of,  see  Alteration  of  Instruments. 

II. 
Evidence  as  to,  see  Evidence,  2063. 
Estoppel  to  Rely  on,  see  Estoppel,  219. 
What  Constitutes  Forgery,  see  Forgery,  7,  8. 
For  Ffirirod  Check,  see  Checks.  V. 
See  also  supra,  100,  238,  262;  Mortgage.  113. 
For  Editorial  Notes,  see  infra,  VII.  §§  5.  22. 

296.  Failure  to  repudiate  the  signature  to 
a  promissory  note  when  first  shown  to  him 
is  not  of  itself  an  affirmation  by  an  appar- 
ent indorser  of  the  signature,  but  is  merely 
evidence  in  the  nature  of  an  admission  bear- 
ing upon  the  question  of  the  assumption  of 


BILLS  AND  NOTES..  VH.  (Ed.   Notes.) 


371 


the  signature.  Traders'  Nat.  Bank  v.  Rog- 
ers. 1G7  Mass.  315.  45  N.  E.  923.  3(5:  539 
297.  A  statement  by  the  apparent  indorser 
of  a  note  that  it  will  be  paid  is  not  a  rati- 
fication of  a  forged  signature,  if  the  remark 
was  not  made  with  intent  to  induce  the 
holder  to  assume  that  the  signature  was 
genuine,  or  tliat  the  statement  was  an  ad- 
mission of  genuineness.  Id. 


VII.  Editorial  Notes. 

a.  In  general;    nature,  requisites,    and  va- 
lidity. 

§  I.  Generally. 

Conflict  of  laws  as  to.    61:  193. 

What  law  governs  as  to  collateral  effect  of 

instrument.    61:  199. 

General    commercial    principles  'as    opposed 

to  local  law  with  respect 

to  bills  and  notes.    61:  193 

Where  notes  taxable.     2:  801.* 

Situs    of,    for    purposes    of    administration. 

24:  689. 
Proof  of,  as  fixed  liability  under  bankruptcy 

act.    54:  373. 
Effect  of  attaching  draft  to  bill  of  lading, 
upon   passing    of    title   to 
the  property.    22:  423. 
Right  to  follow  commercial  paper  as  a  trust. 

34:  536. 
Conversion  of  commercial  paper.     2:  449.* 
§  2.  What  are. 

What  is  a  letter  of  credit.    7:  209.* 
Order  as  note.     3:  50.* 
§  3.  Nature;  form. 
Drawn   in   blank;    ricrht   to   fill   blanks.     1: 

648.* 
Nature  of  bank  draft.     23:  173. 
As  subjects  of  book  account.     52:  712. 
Effect  of  debtor's  note  as  accord  and  satis- 
faction.    20:  791. 
Nature  of  drafts  bv  one  bank  on  another. 

23:  173. 
§  4.  Signature;  use  of  fictitious  names. 
Signing  by  proxy.    22:  297. 
Signing  by  itiark.     22:  372. 
Use  of  initials  in  signing  or  indorsing  com- 
mercial paper.      14:  693. 
Guaranty    by    suretv    of    other    signatures. 

49:  315. 
Signing  as  surety  for  surety.  21 :  247. 
Fictitious   names    as    affecting   validity   of. 

39:  425. 
Right   of    bona    fide   holder   of   paper   with 

fictitious  name.    6:  625.* 
§  .5.  Forgery. 

As  to  Liability  of  Bank  for  Paying  Forged 
Check,  see  Banks/  VIII.  § 
10. 
Liability  of  person  whose  signature  is  forged 
on  commercial  paper.    36: 
539. 
Generally.     ,3fi:  539. 
On  forged  checks.     36:  539. 
Estoppel  and  ratification.    36:539. 
By  a  promise.     36:  539. 
By  silence.     36:  540. 
By  benefit  to  alleged  maker.     38: 
541. 


By  prejudice  to  holder.     36:  541. 
On   account  of  other  transactions. 

.36:  542. 
By  adoption.    36:  542. 
§  6.  Delivery. 
Necessity  of.    6:470.* 
Commercial  paper  as  an  escrow.     5:  697.* 
Taking  effect   from   delivery.     6:469;*    13: 

52.* 
Conditional   delivery.     43:  480. 
Agreement   for  other  signatures  before  de- 
livery,   45:  343. 
§  7.  Validity. 

Note  given  for  money  lost  at  play.    7 :  705.* 
Note  given  as  a  forfeit  or  as-  collateral  to 
an  invalid  oral  agreement 
within   statute   of   frauds. 
18:  142. 
Notes  given  for  patent  rights.     20:  605. 
Where  the  patent  is  invalid.    20:  605. 
Failure  of  consideration.     20:  605. 
As  to   recording   and   defective   assign- 
ments.     20:  606. 
As  to  notice  to  the  holder  affecting  the 
validity  of  the  note.     20: 
606. 
As  to  statutory  restrictions.    20 :  606. 
Validity  of  stipulation   for  attorney's  fee. 

7:445.* 
Renewal  of  note  by  insane  person.     34:  274. 
§  8.  Right  to  make;   who  liable;   in  what 

capacity. 
Power  of  building  association  to  issue  ne- 
gotiable paper.     43:  419. 
Power  of  president   or  A'ice  president   of  a 
corporation  to  make.     14: 
357. 
Liability  on  infant's  note  for  necessarv  sup- 
plies.    5:  177;*  12:  859.* 
Personal  liability  of  officers  on  note  made 

for  corporation.     19:  676. 
Liability    of    public    officers    on    negotiable 

paper.    15:512. 
Commercial   paper  executed  by  nontrading 

partner.      11:2,38.* 

Admissibility  of  evidence  to  charge  one  as 

^  undisclosed     principal     on 

commercial  paper.    9:8.30.* 

Personal    liability   of   agent   on   commercial 

paper.     9:  8.30.* 
Admissibility  of  extrinsic  evidence  to  show 
who  is  liable  as  maker  of 
a   note.     20:  705. 
§  9.  Consideration. 
Implication  of.     12:  845.* 
Effect  of  absence  of  phrase  "for  value  re- 
ceived."   12:  846.* 
Want  of,  as  a  defense.     1:  594.* 

When  paper  transferred  after  maturity. 
46:  760. 
False  representations  as   to.     10:  676.* 
Gift  of  promissorv  note.     26:  305. 
Gift  of  check.     18":  855. 
§10.  Negotiability. 
"\^Tiat  law  governs  as  to.     61 :  205. 
^Vhat  instruments  are  negotiable.     7:  537;* 

8:  393.* 
Certainty  as  to  payment ;  pavment  in  money 

only.     3:  50.* 
Of  bonds  issued  bv  railroad  companies.     1: 

299.* 
Of  counon  bonds.     1:  299.* 


272 


BILLS  AND  NOTES,  VII.   (Ed.  Notes.) 


Of  certificates  of  stock.     12:  781.» 

Of  check.     26:  568. 

Of  note  payable  in  foreign  money.     20:  481. 

Of   note   payable   "on  or  before"   a  certain 

date.     11:749.- 
Of  note  secured  by  mortgage  as  affected  by 
provisions     in     mortgage. 
35:536. 
Of  note  payable  out  of  particular  fund.    35: 
647. 
Orders  payable  out  of  particular  fund 
not     bills     of     exchange. 
35:  647. 
Analogous  rulings.     35:  649. 
Money  payable  absolutely.     35:  649. 
Draft    against    consignments.      35:  650. 
Of  note  payable  to  trustee.    35:  678. 
Provision  for  renewal  as  affecting.     31:  234 
Payments    indorsed    on    note    as    affecting. 

38:  823. 
As  affected  by  transfer  after  maturity.    46: 

763. 
Effect  of  stipulation  for  attorney's  fee.     1: 

547;*  3:  51.» 
Effect  of  seal.     35 :  605. 

Note  of  corporation.    35:  608. 
Ignoring  seal.     35:  607. 
Statutes.     35:  608. 
Provision    for    exchange    as    affecting.     27: 

222. 
Reservation   of  title  of  property  as  affect- 
ing  negotiability    of   note 
for    purchase    price.      43: 
277. 
General  rule.    43:  277. 
Modifications  of  the   rule.     43:  278. 
Effect  of  statutes.     43:  279. 
Michigan    decisions.      43:  279. 
§  II.  Accommodation  paper. 
Liability  of  accommodation  maker  and  in- 

dorser.    5 :  698.* 
Accommodation  indorsement  by  bank.     23: 
836. 

b.  Acceptance  and  payment  of  bills. 

§  12.  Generally. 

As    to    Liability    of    Bank '  Paying    Forged 

Check,  see  Banks,  VIII.  § 

10. 
What  law  governs  as  to  mode  of  acceptance 

of  bill.     61:196. 
SuflRcienev     and    etrect     of     acceptance.     1 : 

648:*   7:  209.* 
Acceptance  by  telegram.     2:  709.* 
Promise   to    accept.     2:  709.* 
Validity  of  parol   promise  to  accept  an  or- 
der   or    bill    of    exchange. 

26:  020. 
Orders    and    bills    drawn.      26:  620. 
Orders  and  l)ills  not  drawn.     20:  620. 
Effect  of  acoeptante  of  bill  payable  at  bank. 

2:  709.* 
Drawee's  duty  to  know  signature  of  drawer. 

27:  035. 
Acceptance  of  forged  ))aper.     7:  596.* 

c.  Indorsement  and  transfer. 

§  13.  Generally. 

What  law  governs  as  to  sufficiency  of  in- 
dorsement or  assignment. 
61:  222. 


What  law  governs  as  to  liability  of,  and  de- 
fenses available  to.  draw- 
er or  indorser.    61:212. 

W^hat  law  governs  as  to  necessity  of  suing 
primary  obligor  as  condi- 
tion of  holding  drawer  or 
indorser.     61 :  220. 

Parol  evidence  as  affecting  indorsement. 
13:  52.* 

Who  must  bear  loss  when  check  or  bill  is- 
sued or  indorsed  to  im- 
postor.   50:  75. 

Injunction  against  negotiation  of  note. 
28:  577. 

Liability  of  bank  as  accommodation  indors- 
er.   23:  836. 

§  14.'  Power  to  transfer  or  indorse. 

Powers  of  president  and  vice  president  of 
corporation  as  to  transfer 
of  negotiable  paper.  14: 
358. 

Power  of  agents  to  indorse  negotiable  paper. 
27:  40L 
Checks.    27:401. 
Other  negotiable  paper.    27:  402. 

Of  agents  in  general.     27:  402. 
Of   corporate  '  officers   and   agents. 

27 :  404. 
Of  bank  officers  and  agents.     27: 
405. 
Indorsement    for    accommodation.     27: 
407. 

Effect  of  principal's  death  on  agent's  right 
to  indorse.    23:  711. 

Right  of  pledgeor  and  pledgee  in  respect  of 
sale  of  commercial  paper. 
53:  857. 

Right  of  pledgee  to  sell.     4:  857.* 

§  15.  Various  forms  of  indorsement. 

Blank  indorsement,  what  is.     1:  712.* 

Indorsement  on  paper  with  blanks  not  filled 
up.    1:648.* 

Filling  of  blanks  in  notes.    6:  469.* 

Effect  of  restrictive  indorsements.    12:  370.* 

Effect  of  indorsement  "without  recourse." 
12:  371.* 

For  collection.    2:  689;*  7:  852;*  8:  42.*     • 

§16.  Irregular  indorsement. 

What  law  governs  as  to  character  and  lia- 
bility of  irregular  indors- 
er.    61 :  200. 

Liability  of  a  stranger  who  indorses  com- 
mercial   paper    before   de- 
livery.    18:  33. 
Distinction     between     negotiable     and 
non-negotiable  instru- 

ments.    18:  34. 
Presumption   as   to   date   of   signature. 

18:  35. 
Intention  of  the  parties  controls  liabil- 
ity.   18:  35. 
Intention  may  be  shown  by  parol.     18: 
36. 

§  17.  Assignor  as  indorsee;    guaranty. 

Assignment  merely  an  indorsement.    36:117. 

Assignor  not  an  indorser.    36:  118. 

Assignment  on  separate  paper.    36:  118. 

Assignment  with  guaranty  of  payment.  36: 
119. 

Without  recourse.     36:  119. 

Special    statute.      36:  119. 


BILLS  AND  NOTES,  VII.  (Ed.  Notes.) 


278 


Transfer  of  title  to  note  by  indorsement  in 
form  of  guaranty.    36 :  232. 
Guaranty  on  separate  paper.    36:  233. 
Guaranty  by  surety  of  other  signatures.    49: 

315. 
Effect  of  indorsement  of  negotiable  paper  to 
transfer     guaranty.       12: 
270.* 
§  i8.  Implied  warranty  of  genuineness. 
Implied  warranty  of  genuineness  upon  sale 
of  negotiable   paper.     36: 
92. 
Exceptional  cases.    36:  93. 
Liability  of  vendor.     .36:  94. 
Sale  by  agent.    36:  95. 
Knowiedge  of  defect.    36:  95. 
Effect  of  special  contract.    36:  95. 
Analogous  rulings.    36:  95. 
Effect  of  delay.    36:96. 
Right  of  indorser  to  question  ipaker's  sig- 
nature.   12 :  434*.* 
Guaranty   by    surety    of   other    signatures. 

49:  315. 
§  19.  Liability  for  transferring  note  to  bona 
fide  holder  so  as  to  cut  off  defenses. 
In  general.     27:  519. 

Cutting  off  defense  of  indorser.    27:  520. 
Effect  of  rule  as  to  parties  in  part,  delicto. 

27 :  520. 
Form  of  action.     27:  521. 

d.  Rights  of  transferees. 

§  20.  Generally. 

Rights  of  payee  of  note  after  repurchasing 
from  bona  fide  holder.    54: 
673. 
Rights  and  liabilities  of  assignee  of  bill  of 
lading      with      draft    at- 
tached,   as    against    con- 
signee  who   does  not   get 
goods  or  finds  them  defect- 
ive.   49:  679. 
§  21. Who  protected  as  bona  fide  purchasers. 
What  law  governs.     61:202. 
Effect  of  notice  of  facts  and  circumstances 
respecting  note.    10:  677;* 
12:  41.* 
§  22.   Extent   of  rights  and   protection  of 

bona  fide  purchaser. 
What  law  governs.    61 :    206. 
Fraud  in  obtaining  the  execution  of  a  note 
as    a    defense    against    a 
bona  fide  holder.     36:  434. 
No  relief  in  equity.     36:  435. 
Exception  where  maker  was  misled  as 
to  character  of  paper.    36: 
435. 
The  maker  must  not  be  guilty  of  neg- 
ligence.   36:  437.  ' 
What  is  negligence.     36:  437. 
Intention  to  sign  note.     36:  439. 
Rule  not  applicable  to  noncommercial 

paper.    36:  439. 
General     rule     applicable    to     sureties 

36:   439. 
Effect  of  statutes.     36:  439. 
Right  of  assignee  of  bona  fide  holder. 

36:  441. 
Amount  of  recovery.    36:  441. 
Regular  course  of  business.     36:  441. 
L.R.A.  Dig.— 18. 


Right  of  bona  fide  holder  of  promissory  note 

of  insane  person.    35:  161. 

Intoxication    of    maker    as    affecting    uona 

fide  holder.    54:  451. 
Right  of  transferee  of  void  note.     6:  502.* 
Rights  of  bona  fide  purchaser  of  note   de- 
clared    void     by     statute. 
16:  45. 
Right  of  bona  fide  purchaser  of  paper  with 
fictitious   name   used.     6: 
625.* 
Alteration   of   note   as   affecting   bona   fide 
holders.     35:  464. 
Reasons  of  the  rule.     35:  465. 
Illustrations.    35:  465. 

Change  in  olace  of  payment.     35: 

465. 
Change  in  date.     35:  466. 
Adding  interest  clause.    35:  466. 
Removal  of  condition.     35:  466. 
Reducing  amount  of  note.    35:  467. 
Raising  amount  of  note.     35:  467. 
Alteration  must  be  material.     35:  467. 
Corrections.     35:  467. 
Alteration  by  stranger  or  by  mistake. 

35:  467. 
Restoration    of    altered   bill.      35:  467. 
Consent.     35:  467. 
Persons   signing  after  alteration.     35: 

467. 
Filling  blanks.    35 :  467. 
Leaving  blanks  will  not  authorize  fur- 
ther change.    35 :  469. 
Spaces.     35:  469. 

Change  apparent  on  face  of  note.     35: 
470. 
As  to  Effect  of  Alteration,  Generally,   see 
Alteration  of  Instruments, 

m, 

§  23.  Presumption  and  burden  of  proof. 

In  action  by  purchaser.     17:  326. 

§  24.  Rights  of  holder  of  negotiable  paper 

transferred  after  maturity. 
Effect  of  transfer  after  maturity  on  nego- 
tiability.   46:753. 
Rights    acquired    unaer    transfer.      46:  754. 
The  general  doctrine.    46:  754. 
Different  statements  of  the  rule.     46: 

757. 
The  correct  rule.     46:  760. 
Defenses  which  maker  may  make.     46:  760. 
General    rules    as    to    right    to    defend. 

46:  760. 
Want  or  failure  of  consideration.     46: 

761. 
Illegal  consideration.     46:  764. 
Usury.     46:  767. 
Fraud  in  inception.     46:  768. 
Violation    of    contemporaneous    agree- 
ment.    46:  769. 
That  it  was  partnership  paper.    46:771. 
That  it  was  accommodation  paper.    46: 

772. 
That  it  was  intended  for  collateral  se- 
curity.   46:  774. 
That  it  had  been  lost  or  stolen.     46: 

775. 
That  transfer  was  unauthorized.     46: 

776. 
That  debt  had   been  attached  or  gar- 
nished.   46:  778. 


274 


BILLS  AND  NOTES.  VIL  (Ed.  Notes.) 


Pavment.    46:  778. 

As  a  defense  generally.    46:  778. 
Payment   bv    person   only    second- 
arily liable.     46:  78L 
Effect    of    reissue    after    payment. 
46:  782. 
Eight  of  the  transferee  to  sue.    46:  783. 
Equities  of  intermediate  holders.    46:  783. 
Exception  as  to  paper  taken  from  bona  fide 

holder.    46:  784. 
Exception  as  to  collateral  matters.     46:  787. 
The  general  rule.    46:  787. 
What  matters  are  collateral — instances. 
46:  787. 
Exceptions  as  to  set-offs  and  counterclaims. 
46:  790. 
The  general  rule.    46:  790. 
L^^nder  statutes  as  to  set-off  of  mutual 

claims.     46:  792. 
Lender  special  statutes.    46:794. 
Equitable   set-offs.     46:796. 
Interposition  or  set-off  against   set-off. 

46:  797. 
Effect  of  agreement  for  set-off.  46:  797. 
Exception    as    to   instruments    drawn    pay- 
able   without    defalcation 
or  discount.    46:  799. 
Effect    of   dishonor    as    to    interest,    instal- 
ments, or  part  of  a  series. 
46:  799. 
Effect  of  transfer  and  indorsement  at  dif- 
ferent times.    46:  801. 
Effect  of  extension  of  time.     46:  802. 
Effect  of  renewal  of  note.     46:  802. 
Effect  of  action  brought.     46:  803. 
Rights  of  holder  against  indorser.    46:  803. 
General  rules  as   to  effect   of  transfer. 

46:  803. 
Demand  and  notice  to  charge  indorser. 
46:  804. 
Special  rules  based  on  character  of  the  in- 
strument.   46:  807. 
On  demand  notes.     46:  807. 
Checks.     46:  808. 
Certificates   of  deposit.     46:  809. 
Negotiable  bonds.    46 :  810. 
Actions  against  transferees  to  enforce  equi- 
ties.     46:  811. 
Proof   with    reference   to   equities.     46:  812 

e.  Presentment;  demand;  notice;  protest. 

§  25.   Generally. 

What  law  governs.     61:  216. 

Banking  customs  as  to  demand  and  notice. 
21:441. 

§  26.  Necessity  of. 

What  law  governs.    61:  216,  217. 

When  paper  held  as  collateral  or  condition- 
al payment.    68:  487. 

Of  presentation,  demand,  and  notice.  12: 
727.* 

§  27.  Sufficiency;  mode;  time. 

What  law  governs.  61:  217.  218. 

Sufficiency  of  notice  to  indorser.    12:  731.* 

To  whom  should  notice  of  protest  or  non- 
payment be  given  after 
appointment  of  receiver, 
assignee,  or  other  repre- 
sentative of  insolvent. 
61 :  900. 


Absence  of  notice,  either  to  insolvent, 
or    to    his    representative- 
61 :  900. 
Notice  to  assignee,  or  other  representa- 
tive of  insolvent.     61 :  900. 
Notice    to    insolvent    maker,    indorser^ 
or    accommodation    payee* 
61:  901. 
Place  of   demand.      12:   727.* 
Presentment  to  joint  makers  to  hold  indors- 
ers  of  note.     36:  703. 
Partnei-ship  notes.     36:  704. 
Time  within  which  notice  of  dishonor  must 
be  given.     12:  729.* 
Diligence  required.    12:  729.* 
Contingency  of   claim   against,  as  affecting- 
limitation     of     time     for 
presentation     against     es- 
tate of  deceased  indorser. 
58:  87. 
Service  of  notice  by  mail.     12:  731.* 
Banking  customs  as  to  demand  and  notice 

21:  441. 
In  case  of  death  of  prior  obligor.     23:  711. 
§  28.  Effect  of  failure  or  delay. 
Effect  of  failure  of  holder  to  make  demand' 
or  give  notice  of  dishonor 
of  paper  held  as  collateral 
or     conditional     payment 
68:  482. 
Effect,  generallv,  on  original  debt.    68t 
483. 
Conditional  payment.     68:  483. 
Collateral  security.     68:  48.5. 
Necessity  for  demand.    68:  487. 
Necessity  for  notice.     68:  488. 

To  parties  to  the  paper.     68:  488. 
To  nonparties.    68:  488. 
Excuses  for  default  of  demand  or  notice. 
68:  490. 
Insolvency  of  a  party.    68:  490. 
Waiver.    '68:  491. 
Release   of   indorser   of   check   by   delay   in 

presenting  it.     22:  785. 
§  29.  Waiver. 

When  paper  held  as  collateral  or  condition- 
al payment.     68:  491. 
Waiver  of  laches  and  presumption  of  dili- 
gence.    29:  305. 
Promise  as  evidence  of  notice.     29:  305. 
Promise  as  evidence  of  waiver.     29:  307. 
Promise  as  a  waiver.    29:  308. 
What  knowledge  necessary  to  effect  waiver.- 

29:  309. 
Sufficiency  of  promise.     29:  310. 
Effect   of'  waiver.     29:  313. 
Effect   of   pavment  or  part   pavment.     29: 

313. 
Right   to  contradict  presumption  of  notice^ 

29:  314. 
Burden  of  proof.     29:  314. 
How  far  knowledge  may  be  inferred.     29: 

315. 
Is  question  for  court  or  jury.     29:  315. 

Effect  of  statute.    29:  3i5. 
Writing   waiver   on    note.      29:  315. 
Promise  secondary  evidence  of  a  notice  ac- 
tually given.     29:  315. 
Necessity  of  consideration  or  writing.     29:; 
315. 


BILLS  AND  NOTES,  VII.  (Ed.  Notes.) 


375 


Sufficiency  of  moral  obligation  to  sustain 
new  promise  after  defense 
of  laches.    53:  365. 

t.  Maturity. 

§  30.  Generally. 

What    Jaw    governs.      61 :  195. 

Banking   customs   as  to.     21 :  440. 

Of  demand  note.     5:  533.* 

When  statute  of  limitations  begins  to  run 
on  note  payable  on  de- 
mand.    1:319.* 

When  note,  transferred  after  maturity,  pay- 
able.   3:  759.* 

Extension  of  time  when  last  day  falls  on 
Sunday.      14:  120. 

Bank  customs  as  to  days  of  grace.     21:  442. 

First  and  last  davs  in  computing  time  on. 
49:  207. 

Meaning  of  term  "month"  in  relation  to 
promissory  note.    12:  772.* 

Priority  of  notes  falling  due  at  different 
times  secured  by  same 
mortgage.    24:   800. 

g.  Actions  and  defenses. 

§  31.  Generally. 

What  law  governs  respecting  right  to  join 
primary      and      secondary 
obligors.     61 :  226. 
Effect  of  alteration  of  bill  of  exchange  by 
holder.    4:  196.* 
By  agent.     4:  196.* 
Alteration    as    Affecting    Subsequent    Bona 

Fide  Holder,  see  supra,  VII.   §  22. 
Liability    of    maker    or    drawer    on    raised 
negotiable  paper.     22:  686. 
§  32.  Who  may  sue. 
\Vhat  law  governs.    61 :  222. 
Who  is  real  party  in  interest  by  whom  ac- 
tion    must     be     brought. 
64:  599. 
Right     of     assignee     to     maintain     action. 

12:  683.* 
§  33,  Contemporaneous       agreement       and 

breach  as  defense. 
Parol  agreements.    43:  449. 
General  rule.     43:  449. 
That  note  is  not  to  be  paid.    43:  450. 
That  payment  is  to  be  conditional.    43: 

453. 
As  to  time  of  payment.     43:  456. 
As  to  place  of  payment.     43:  458. 
As  to  medium  of  payment.    43:  458. 
As  to  mode  of  payment.     43:  459. 
As  to  amount  to  be  paid.    43:  460. 
As  to  capacity  of  maker.     43:  462. 
As  to  negotiation.     43:  463. 
As  to  subject-matter  of  the  considera- 
tion.    43:463. 
Collateral  and  independent  agreements.    43: 
464. 
General  rule.     43:  464. 
What  agreements  are  collateral  and  in- 
dependent.    43:  465. 
Mutual  and  dependent  agreements.    43:  467. 
General  doctrine.     43:  467. 
What  agreements  are   mutual   and  de- 
pendent.    43:  468. 


Must  be   between    same    parties.     43: 

472. 
Mortgage   contemporaneous    with   note. 
43:  472. 
Consistent  agreements  constituting  parts  of 
a  whole  transaction.     43: 
473. 
Agreements    constituting    consideration    for 
note.     43:  474. 
Scope  of  the  subject.     43:  474. 
The  general  doctrine.     43:  474. 
Application   to   parol   agreements.     43: 

476. 
What  agreements  are   within  the  rule. 
43:  477. 
Agreements  constituting  condition  of  deliv- 
ery.   43:  480. 
Agreements  constituting  satisfaction  or  dis- 
charge.   43:  482. 
Executed  agreements.     43:  483. 
Effect  on  transferee  of  note.     43:  485. 
Violation  of  contemporaneous  agreement  as 
defense  against   holder  of 
negotiable     paper     trans- 
ferred      after      maturity. 
46:  769. 
§  34.  Paper  lost  or  destroyed. 
Right  of  action  at  law  on  lost  bill  or  note. 
16:  205. 
Non-negotiable    paper.      16:  205. 
Presumptions.      16:  206. 
Negotiable  papers.     16:  206. 
Paper  overdue  or  otherwise  subject  to 

equities.     16:  206. 
Action  against  indorser.     16:  207. 
Loss  pending  action.    16:  207. 
Right  of  action  at  law  on  distroved  bill  or 

note.     16:  207.   "      . 
§  35.  Amount  of  recovery. 
By  Bona  fide  holder  when  execution  of  note 
obtained     bv     fraud.     36: 
441. 
Extent  of  recovery  by  pledgee  on  negotia- 
ble  paper   which    pledgeor 
could  not  collect.     44:243. 
The  general  rule.    44:  243. 
Limitation    to    unpaid    advances    made 
without    notice.      44:  245. 
Application    to    accommodation    paper. 

44:  249. 
Matters  of  procedure.     44:  250. 
§  36.  Payment. 
Effect   of   payment    of,   by   volunteer.     23 r 

124. 
Making  negotiable   paper  payable  at  bank 
as   authority   to   bank   to- 
pay  same.     9:  560.* 
Note  payable  in  foreign  money.    20:  481. 
§  37.  Set-off. 
In  bankruptcy  cases.     55:40,  48.  53,  59,  64, 

70. 
As  to  commercial  paper  in  the  hands  of  in- 
solvent's   ai5siirnee    or    re- 
ceiver.    23:  325. 
In    case    of    transfer   after    maturity.      46: 

790. 
§  38.  Pleading;  practice;  evidence. 
Sufficiency  of  answers  denj'ing  ownership  of 
plaintiff  in  actions  on  ne- 
gotiable instruments.    66: 
513. 


276 


BILLS  OF  ATTAINDER— BILLS  OF  LADING. 


Right  to  plead  inconsistent  defenses  in  ac- 
tions relating  to.    48:  194. 

Effect  of  admission  to  change  burden  of 
proof  and  right  to  open 
and  close  in  assumpsit  on 
bill  or  note.  61 :  535,  541, 
544. 

Admissibility  of  parol  evidence  of  condition 
to  vary  or  contradict  com- 
mercial paper.     3:  863.* 

Admissibility  of  parol  evidence  to  vary 
maker's  liability.     1:  594.* 

Admissibility  of  extrinsic  evidence  to  show 
who  is  liable  as  maker  of 
a  note.     20:  705. 

Admissibility  of  parol  evidence  to  vary  con- 
tract.    1:  816.* 

Admissibility  of  parol  evidence  to  prove 
relation  of  parties.  1: 
817.* 

Admissibility  of  parol  evidence  as  between 
immediate  parties  to 
promissory  note.    13:649.* 

Presumption  and  burden  of  proof  in  action 
by  purchaser.     17:  326. 


BILLS  OF  ATTAINDER. 
See  Attainder. 


BILLS  OF  CREDIT. 


Estate  by  Entireties  Created  by,  see  Hus- 
band and  Wife,  67. 


♦  •» 


BILLS  OF  DISCOVERY. 

See  Discovery  and  Inspection. 


♦  •» 


BILLS   OF  EXCEPTIONS. 

On  Appeal,  see  Appeal  and  Error,  IV.  o. 
On  Certiorari,  see  Certiorari,  37. 
As  Evidence,  see  Evidence,  894,  895. 
To  Impeach  Witness,  see  Witnesses,  149. 


BILLS  OF  EXCHANGE. 
See  Bills  and  Notes. 


BILLS  OF  LADING. 


With  Draft  Attached,  see  also  Banks,  200; 

Carriers,  813;   Pleading,  290;   Sale,  23- 

26. 
Rights   of  Holder  of,   against    Carrier,    see 

Carriers,  IL  b;  IV.  §§  31-47. 
Delivery  of  Propertv  Shipped  to  Holder  of, 

see  Carriers,  813-820. 
Parol  Evidence  as  to,  see  Evidence,  1072. 


Right  of  Bank  Accepting  as  Security,  see 

Factors,  4. 
Liability    of    Factor   Obtaining    Possession 

through    Forged    Bill     of    Lading,     see 

Factors,  7. 
Levy  oii  Consignment  Covered  by,  see  Levy 

and  Seizure.  3. 
Transfer  of  Title  bj'  Delivery  of,  see  Sale, 

22-26. 
Construction  of,  by  Court,  see  Trial,  244. 

1.  Minn.  Gen.  Stat.  1878,  chap.  124,  §  17, 
declaring  that  bills  of  lading  shall  be  ne- 
gotiable, does  not  put  them  on  the  footing 
of  bills  of  exchange,  but  merely  provides 
that  the  transfer  and  delivery  of  these  sym- 
bols of  property  while  it  is  in  transit  be 
equivalent  to  an  actual  transfer  and  de- 
livery of  the  property  itself.  National  Bank 
of  Commerce  v.  Chicago,  B.  &  N.  R.  Co.  44 
Minn.  224,  46  N.  W.  342,  560,  9:  263 

2.  Assignment  for  value  of  a  bill  of  lad- 
ing made  "to  order  of  shipper"  transfers 
title  to  the  property  covered  thereby  as 
against  all  the  world  except  the  shipper,  so 
that  the  property  can  no  longer  be  attached 
by  a  third  person  for  the  shipper's  debts. 
Finch  V.  Gregg,  126  N.  C.  176,  35  S.  E.  251. 

49:  679 

3.  An  assignee  of  a  bill  of  lading  with 
draft  attached  will,  in  case  he  receives  paj'- 
ment  of  the  draft,  be  subject  to  action  fo^r 
a  return  of  the  money  in  case  the  property 
covered  by  the  bill  does  not  comply  with  the 
contract.  Id. 

4.  Money  paid  by  the  drawee  upon  a 
draft  drawn  against  "indorsed  bills  of  lad- 
ing" which  are  in  fact  fictitious,  and  ac- 
cepted "against"  such  bills  in  ignorance  of 
the  fraud,  may  be  recovered  back  from  the 
payee.  Guaranty  Trust  Co.  v.  Grotrian,  52 
C.  C.  A.  235,  114  Fed.  433,  57:  689 

5.  Payment  by  the  drawee  to  the  payee, 
of  a  negotiable  draft  with  bill  of  lading  at- 
tached, cannot  be  recovered  back  by  the 
drawee  on  the  ground  that  the  paj'ee  has  re- 
ceived money  which  it  cannot  equitably  re- 
tain because  of  a  breach  of  warranty  made 
by  the  drawer  to  the  drawee  on  the  sale  of 
the  goods  for  which  the  bill  of  lading  was 
given,  since  any  equities  arising  therefrom 
do  not  affect  the  payee  when  he  has  secured 
an  acceptance  or  payment.  Tolerton  &  S. 
Co.  v.  Anglo-California  Bank,  112  Iowa, 
706,  84  X.  W.  930,  50:  777 

6.  The  purchaser  of  a  draft  with  bill  of 
lading  attached  is  not  liable  on  a  war- 
ranty, made  by  his  assignor,  of  the  goods 
represented  by  the  bill  of  lading.  Id. 

7.  A  bank  does  not,  by  purchasing  a 
draft  with  bill  of  lading  attached,  become 
a  party  to  the  sale,  so  as  to  be  responsible 
to  the  consignee  in  case,  after  he  has  paid 
the  draft,  the  bill  of  lading  proves  to  be 
fraudulent  so  that  the  consideration  fails. 
S.  Blaisdell,  Jr.,  Co.  v.  Citizens,  Nat  Bank, 
96  Tox.  026,  75  S.  W.  292,  62:  968 

8.  Neither  a  bank  which  purchased  a 
draft  for  a  consignment  of  grain,  with  bill 
of  lading  attached,  nor  the  payees  who  in- 
dorsed and  delivered  it  to  the  bank,  are 
liable  to  the  drawees,  the  consignees  of  the 


BILLS  OF  PARTICULARS— BLACKMAIL. 


277 


grain,  who  accepted  and  paid  the  draft,  for 
failure  of  title  in  the  drawer  to  the  prop- 
erty shipped.  Hall  v.  Keller,  64  Kan.  211, 
67  *Pae.   518,  62:  758 

Editorial  Notes. 

As  to  Liability  of  Carriers  of  Freight,  Gen- 
erally,   see    Carriers,    IV. 
§§  31-47. 
Character  and  effect  of.     10:  416.* 
As  a  receipt    and    contract.      4:244;*     10: 

416.* 
Right  to  contradict.     9:263.* 
Restriction  in.     6:  849;*  10:  415.* 
Rule  as  to  valuation  fixed  in.    12:  799.* 
To  whom  may  delivery  be  made  under  bill 
of  lading.     38:  358. 


BILLS  OF  PARTICULA^iS. 

Confining  Proof  to  Facts  Stated  in,  see  Evi- 
dence, 2061. 

In  Support  of  Indictment,  see  Indictment, 
etc.,  99. 

See  also  Pleading,  I.  i. 

♦-•-♦- 


BILLS  OF  REVIEW. 


See  Review. 


BILLS  OF  RIGHTS. 

See  Constitutional  Law,  especially,  32,  278. 

♦-•-♦ 

BILLS  OF  SALE. 

As  Evidence,  see  Evidence,  821,  822. 
As  Assignment,  see  Sale,  5. 


BINDING  SLIP. 
See  Insurance,  181,  182. 


BISHOP. 

Bequest  to,  for  Masses,  see  Masses,  2. 

Power  of,  as  to  Church  Property,  see  Re- 
ligious Societies,  24. 

As  Employer  of  Priest,  see  Religious  So- 
cieties, 55. 

Liability  on  Contract,  see  Religious  So- 
cieties, 65. 

As  Trustee,  see  Trusts,  11,  168. 


BITTERS. 

As    Intoxicating   Liquors,    see    Intoxicating 
Liquors,  93. 

Editorial  Notes. 
As   intoxicating  liquor.     20:647. 


BLACKBERRIES. 
Levy  on,  see  Levy  and  Seizure,  25. 


BLACKBOARDS. 


Blackboard  Announcements  as  to  Trains, 
see  Carriers,  11.  a,  11;  Constitutional 
Law,  419. 


BLACKLISTING. 


Placing  Member  of  Association  on,  see  As- 
sociations, 18. 

Admissibility  of  Evidence  as  to  Placing  of 
Name  on,  see  Evidence,  946,  947. 

Injunction  against,  see  Injunction,  124. 

Placing  Debtor's  Name  on  Blacklist,  see 
Libel  and  Slander,  176. 

Joinder  of  Actions  for,  see  Parties,  121. 

Pleading  as  to,  see  Pleading,  49. 

See  also  Libel  and  Slander,  115. 

1.  A  statute  prohibiting  employers  from 
combining  for  the  purpose  of  interfering 
with  or  preventing  any  person,  either  by 
threats,  promises,  or  blacklisting,  from  pro- 
curing employment  (Minn.  Laws,  1895,  chap. 
174),  is  not  in  conflict  with  the  Minnesota 
Constitution  or  U.  S.  Const.  14th  Amend. 
State  ex  rel.  Scheffer  v.  Justus,  85  Minn. 
279,  88  N.  W.  759,  56:  757 

2.  The  right  of  railroad  companies  to  dis- 
charge employees  does  not  imply  the  right 
to  be  guilty  of  a  violent  or  malicious  act 
which  results  in  injury  to  the  discharged 
employee's  calling.  Hundley  v.  Louisville 
&  N.  R.  Co.  105  Ky.  162,  48  S.  W.  429. 

63:  289 

3.  A  custom  of  railroads  to  keep  a  rec- 
ord of  the  causes  of  the  discharge  of  em- 
ployees, and  to  decline  to  employ  those  who 
are  discharged  for  certain  causes,  makes  it 
a  part  of  the  contract  of  employment  that 
no  false  entry  as  to  the  cause  of  such  dis- 
charge shall  be  made,  or  communicated,  if 
made,  to  any  other  railroad  company.       Id. 

4.  An  agreement  between  railroad  com- 
panies not  to  employ  persons  discharged  by 
the  respective  companies  gives  employees 
no  right  of  action  unless  carried  out.       Id. 

Editorial  Notes. 

Injunction  against.     20:  342. 
Of  dealer  as  libel.     49:  612. 
Blacklisting  employees.    63:  289. 


BLACKMAIL. 
As  to  Extortion,  see  Extortion. 


-278 


BLACKSMITH— BLASTING. 


1.  A  demand  by  the  owner  upon  the  of- 
fender for  a  reasonable  compensation  for 
property  criminally  destroyed  by  the  latter, 
■with  an  accusation  of  the  crime  and  a 
threat  to  prosecute  for  it  if  the  demand  is 
not  complied  with,  does  not  constitute  the 
offense,  under  Ohio  Rev.  Stat.  §  6830,  of 
accusing  a  person  of  a  crime  with  intent  to 
extort  or  gain  nionev  or  other  advantage, 
^lann  v.  State,  47  Ohio  St.  556,  26  N.  E. 
226,  11:656 

2.  The  truth  of  the  accusation  may  be 
material  on  the  trial  of  an  indictment  for 
accusing  another  of  crime  with  intent  to  ex- 
tort money  from  him,  on  the  question  of 
the  intent  with  which  the  accusation  was 
made.  Id. 

3.  The  name  and  signature  of  a  claimant 
agency  subscribed  to  threatening  letters 
and  circulars  which  are  sent  in  violation  of 
Mo.  Rev.  Stat.  1889.  §  3782,  are  entirely  im- 
material to  the  offense  of  the  persons  who 
sent  them.  State  v.  McCabe,  135  Mo.  450,  37 
S.  W.  123,  34:  127 


BLACKSMITH. 


Question  for  Jury  as  to  Negligence  of,  see 
Trial,  352. 


BLACKSMITH  SHOP. 

As  Nuisance,  see  Nuisances,  3. 


BLANK. 

In  Acknowledgment,    see    Acknowledgment, 
11. 

Filling   of.   see   Alteration    of    Instruments, 
34,  37. 

In  Note,  see  Bills  and  Notes,  50. 

In  l^ond,  see  Bonds,  5. 

leaving  Mortgagee's  Name  Blank,  see  Chat- 
tel Mortgage,  7. 

In  Doed,  see  Deeds,  47-49. 

Indorsement   in.   Parol    Evidence   as   to,   see 
Evidence,  1176,  1177. 

In   Assignment  of  Mortgage,  see  Mortgage, 
105. 

Editorial  Notes. 

Indorsement,  what   is.     1:712.* 

In  warrant  of  attorney  to  confess  judg- 
ment. *  13:  796. 

Filling  of  blanks  in  notes.  1:648;*  6: 
469.' 

For  name  in  certificate  of  acknowledg- 
ment.     19:  279. 


BLASPHEMY. 


Editoiial   Notes. 

Bla.spheniv    and    |)ri)faiiitv    as    criines.      22: 
353. 


Definitions.     22:  353. 

Indictable  at  common  law.     22:  353. 

Constitution    of    the   offenses.     22:  354. 

The  indictment.     22:  355. 

State  statutes.     22:  357. 

Constitutionality    of   statutes.    22:  359. 

English  decisions.    22:  359. 


BLAST  FURNACES. 

Judicial- Notice  as  to,  see  Evidence,  79. 


BLASTING. 


Measure  of  Damages   for   Injuries    by,    see 

Damages,  417. 
Evidence  as  to,  see  Evidence,  1714,  2086. 
Injunction  against,  see  Injunction,  159. 
Negligence  of  Independent  Contractor  as  to, 

see  Master  and  Servant,  702,   and    also 

infra.  Editorial  Notes. 
Municipal     Liability     for     Injury    by,     see 

Municipal  Corporations,  441. 
As  Nuisance,  see  Nuisances,  66. 
See  also  Explosions  and  Explosives. 

1.  Blasting  by  the  use  of  gunpowder  or 
dynamite  is  an  appropriate  and  justifiable 
mode  of  removing  rock  from  the  right  of 
way  of  a  railroad  in  order  to  bring  it  to 
grade;  and  a  railroad  company  or  its  grad- 
ing contractors  may  lawfully  employ  it, 
with  reasona'ule  care.  Carv  v!  Morrison,  63 
C.  C.  A.  207,  129  Fed.  177'  65:  659 

2.  Persons  using  such  an  inflammable 
and  powerful  instrumentality  as  blasting 
powder  are  charged  with  knowledge  of  any 
fact  in  reference  to  its  actual  effect  that  by 
reasonable  diligence  they  could  have  ascer- 
tained. Blackwell  v.  Moorman,  111  N.  C. 
151,  16  S.  E.   12,  17:  729 

3.  A  provision  in  a  contract  for  excavat- 
ing a  sewer  trench,  that  blasts  are  to  be 
carefully  covered  to  effectually  prevent  in- 
jury to  persons  or  property,  refers  to  in- 
jury from  flying  debi-is,  and  not  from  noise 
of  the  explosion.  Mitchell  v.  Prange,  110 
:Mich.  78.  67  N.  W.  1096,  34:  182 
Duty  to  give  warning. 

See  also  infra  20,  and  Editorial  Notes. 

4.  The  words  ''all  persons,"  in  Me.  Rev. 
Stat.  chaj).  17.  §§  23.  24,  requiring  notice  by 
those  engaged  in  blasting  before  an  ex- 
plosion, so  that  "all  persona"  or  teams  shall 
have  time  to  retire  to  a  safe  distance,  do 
not  apply  to  the  workmen  in  the  quarries. 
Hare  v.  "Mclntvre.  82  Me.  340,   19  Atl.  453, 

8:  450 

5.  Persons  "api)roaching"  to  whom  notice 
is  required  by  :Me.  Rev.  Stat.  chap.  17,  §  23, 
by  ])ers()ns  blasting  rock,  include  those  who 
have  passed  the  ])oint  nearest  the  blasting 
and  are  receding  from  it,  if  they  are  in 
Doar  proximity  to.  and  not  a  safe  distance 
from,  the  place  of  explosion.  Wadsworth 
V.  .Marshall.  88  ^le.  26.1,  .34  Atl.  .30,     .32:  588 

(!.  A  contractor  removing  rock  in  a  rail- 
road   ri^ht    of   wav    bv   blasting   with    gun- 


BLASTING. 


279 


powder  must  give  persons  rightfully  occupy- 
ing or  using  neighboring  property  reasoft- 
able  warning  of  coming  explosions.  Carv  v. 
3Iorrison,  63  C.  C.  A.  267,  129  Fed.  177'. 

65:  659 

7.  Failure  to  give  warning  of  an  intended 
blast  in  an  excavation  in  which  blasting  had 
been  going  on  for  several  weeks  will  not 
render  the  person  discharging  the  blast 
liablf  for  injury  to  a  blacksmith  injured  by 
the  starting,  in  consequence  of  the  noise, 
•of  a  horse  which  he  was  shoeing  at  a  place 
several  hundred  feet  distant  from  the  ex- 
cavation, ^litchell  V.  Prange,  110  Mich.  78, 
■67  X.  W.  1096,  34:  182 

8.  The  frightening  of  horses  by  the  noise 
•of  an  explosion  in  blasting  rock  is  one  of 
•the  dangers  which  it  is  intended  to  guard 
against  by  Me.  Rev.  Stat.  chap.  17,  §  23,  re- 
•quiring  reasonable  notice  of  the  explosion, 
and  §  24,  declaring  liability,  in  case  the  pro- 
vision is  violated,  for  all  damages  caused  by 
the  explosion.  Wadsworth  v.  Marshall,  88 
Me.  263,  34  Atl.  30,  32:  588 
Injury  to  persons  or  property  on  adjoining 

land. 
Compensation  for  Injury  by,  see  Evidence, 

323. 
See  also  supra,  6. 

9.  Injury  to  another's  house  by  a  mere 
concussion,  without  throwing  rock  or  other 
material  on  the  premises  occasioned  by 
blasting  on  one's  own  premises  in  order  to 
adapt  them  to  a  lawful  use,  when  that 
mode  is  the  only  one  and  the  work  is. 
transacted   with   due   care    and    diligence — • 

"•creates  no  liability.     Booth  v.  Rome,  W.  & 
O.  T.  R.  Co.   140  X.  Y.   267,  35  N.  E.  592, 

•  24:  105 

10.  Injuries  to  a  house  from  blasting, 
•caused  merely  by  the  shaking  of  the  earth 
or  pulsations  of  the  air,  or  both,  give  no 
right  of  action,  in  the  absence  of  negligence 
in  doing  the  bla.sting,  where  it  was  done 
under  a  contract  with  the  United  States  for 
the  purpose  of  removing  rocks  from  a 
harbor.  Benner  v.  Atlantic  Dredging  Co. 
1.34  X.  Y.   156,  31   X.  E.  328,  17:220 

11.  One  who  uses  high  explosives  in  ex- 
cavating so  near  the  property  of  another 
that  the  natural  and  probable  result  of  an 
explosion  will  be  injury  to  such  property  is 
liable  for  injuries  caused,  even  by  the 
vibration  of  earth  or  air,  however  high  a 
degree  of  care  he  may  have  exercised  in 
their  use.  Fitzsimons  &  C.  Co.  v.  Braun,  199 
III.  .300.  65  X.  E.  249,  59:  421 

12.  The  operation  of  a  stone  quarry  on 
city  lots  for  a  long  period  of  time  by  means 
of  blasting,  which  causes  vibrations  of  the 
earth  and  air  in  such  a  manner  as  to  render 
an  adjoining  dwellinjj  unsafe  for  occupation, 
and  causes  rents  in  its  walls,  will  render  the 
one  responsible  therefor  liable  for  the  in- 
jury, although  he  uses  due  care  in  the 
prosecution  of  the  work.  Longtin  v.  Persell. 
30  Mont.  306,  76  Pac.  699,  65:  655 

13.  Persons  engaged  in  blasting,  who 
know,  or  by  reasonable  diligence  could 
know,  that  stones  thrown  by  the  blasts 
have  been  falling  on  or  around  a  neighbor- 
-ing  dwelling  so  as  to  emperil  the  safety  of 


the  occupants,  must  protect  them  by  cover- 
ing the  blast  if  this  can  be  done  nt  a 
reasonable  cost,  and,  if  not,  nuist  give 
actual  warning  to  those  who  are  in  peril. 
Blackwell  v.  Moorman,  111  N.  C.  151,  16  S. 
E.  12,  17:  729 

14.  AVhile  a  contractor  may  lawfully 
blast  with  gunpowder  or  dynamite  to  re- 
move rock  in  the  right  of  way  of  a  railroad 
company,  he  has  no  right  by  blasting  to 
throw  rocks  upon  persons  rightfully  occupy- 
ing or  using  neighboring  property.  Cary  v. 
Morrison.  63  C.  C.  A.  267,  129  Fed.  177, 

65:  659 
Injury  to  former  tenapt's  property. 

15.  Blasting  for  the  improvement  of  one's 
property  does  not  make  him  liable  for  an 
accidental  destruction  thereby  caused,  with- 
out wilful  or  wanton  negligence,  of  the 
buildings  of  a  former  tenant,  who  by  fail- 
ure to  remove  them  and  by  violent  preven- 
tion of  their  removal  by  the  landowner  had 
become  a  trespasser.  Emry  v.  Roanoke 
Xav.  &  W.  P.  Co.  Ill  X.  C.  94,  16  S.  E.  18, 

17:  699 
Injury  to  person  in  highway.  . 

16.  One  who  explodes  a  blast  upon  his 
own  land  and  thereby  causes  a  piece  of 
wood  to  fall  upon  a  person  lawfully  travel- 
ing in  a  public  highway  is  liable  as  a  tres- 
passer for  the  injury  thus  inflicted,  al- 
though the  blast  is  fired  for  a  lawful  pur- 
pose and  without  negligence  or  want  of 
skill.  Sullivan  v.  Dunham,  161  N.  Y.  290, 
55  X.  E.  923.  47:  715 

j  Contributory  negligence. 

I  Question  for  .Tury  as  to,  see  Trial,  458,  459. 

!  17.  It  is  the  duty  of  one  who  is  lawfully 
using  property  near  to  that  upon  which 
another  is  legally  engaged  in  blasting,  and 
who  is  warned  of  a  coming  explosion,  to  use 
reasonable  diligence  to  escape  from  danger 
on  account  of  it;  and  a  failure  to  exercise 
such  care,  which  concurs  in  producing  his 
injury,  waives  his  right  of  action  for  the 
trespass,  and  constitutes  contributory  negli- 
gence, which  is  fatal  to  his  action  for  dam- 
ages for  the  injury.  Cary  v.  Morrison,  63 
C.  C.  A.  267,  129  Fed.  177,  65:  6.59 

18.  A  person  imperiled  by  blasting  opera- 
tions near  his  dwelling  is  not  chargeable 
with  contributory  negligence  because  he 
fails  to  find  an  absolutely  safe  place  when 
in  the  moment  of  peril  he  makes  an  effort 
to  protect  himself.  Blackwell  v.  Moorman, 
111  X.  C.  151,  16  S.  E.  12,  17:  729 

19.  A  passenger  who  goes  upon  a  boat  at 
a  wharf,  and  sits  down  and  goes  to  sleep  in 
the  cabin,  knowing  that  blasting  is  being 
done  by  contractors  near  by,  assumes,  as 
against  such  contractors,  all  risks  neces- 
sarily incident  to  such  work  if  prosecuted 
with  skill  and  reasonable  care.  Smith  v. 
Day,  40  C.  C.  A.  366,   100  Fed.  244, 

49:  108 

20.  Driving  a  vicious  horse  not  properly 
broken,  and  unsafe  for  the  purpose,  may 
contribute  to  the  injury  when  the  horse  is 
frightened  by  blasting  rock,  so  as  to  consti- 
tute a  defense  to  the  statutory  liability  for 
failure    to    give    notice    of    the    explosion. 


280 


BLASTING  POWDER— BOARDS. 


Wadsworth  v.  Marshall,  88  Me.  263,  34  Atl. 
30,  32:  588 

Editorial  Notes. 

Duty  of  those  engaged  in,  as  to  the  safety 

of  others.     17:  729. 
Injuries  to  land  and  buildings   from  blast- 
ing.    17 :  220. 
In  railway  construction.     17:  221. 
Liability  for,  when  done  by  independ- 
ent   contractor.      14:  830; 
65:  753,  854. 


BLASTING  POWDER. 

Use  of,  in  Blasting,  see  Blasting. 
Limiting  Carrier's  Liability  as  to,  see  Car- 
riers, 893,  894. 


BLIND. 

Duty  to  Receive  Blind  Passengers,  see  Car- 
riers, 447-451,  469,  483. 

Institution  for,  as  Charity,  see  Charities,  31. 

Walking  on  Street  Unattended,  see  High- 
ways, 366. 


BLINDNESS. 


Effect  of,  on  Application  of  Payments,  see 
Payment,  41. 


BLOOD   POISONING. 

Opinion  Evidence  as  to,  see  Evidence,  1288. 
Death  of  Insured  by,   see   Insurance,   1001, 
1002,  1024,  1038. 


BOARD  BILL. 
Of  Infant  as  Necessaries,  see  Infants,  70. 


BOARDING  HOUSES. 

Requiring  Furnishing  of  List  of  Boarders 
for  Poll  Tax,  see  Municipal  Corpora- 
tions, 234. 

Title  of  Statute  as  to  Keepers  of,  see  Stat- 
utes, 273,  274. 


BLIND  VEIN. 


Cutting  of,  by  Tunnel,  see  Mines,  22,  23. 


BLOCKING  SWITCHES. 

Remedy  for  Violation  of  Statute  as  to,  see 
Election   of  Remedies,   12. 

Judicial  Notice  of  Danger  from,  see  Evi- 
dence, 109. 

Injury  to  Employee  bv,  see  Master  and 
Servant,  165, '327,  392. 


BLOODHOUNDS. 


Admissibility  of  Photograph  of,  see  Evi- 
dence,  1054. 

Use  of,  in  ^Making  Unlawful  Search,  see  Evi- 
dence,  1807. 

Evidence  as  to  Trailing  of  Criminal  with, 
see  Evidence,  2146-2148,  2161,  2189. 

Editorial  Notes. 

Evidence  of  trailing  by.     42:  432. 


BOARDS. 

Of  Agriculture,  see  Boards  of  Agriculture. 
Of  County  Commissioners,  see  Counties,  11. 

d. 
Of  Pardons,  sec  Criminal  Law,  261. 
Of  Underwriters,  see  Fire  Underwriters. 
Of  Health,  see  Health,  I. 
Of   Schools,    see   Prohibition,   32;     Schools, 

III.  a. 
Of  Review  of  Taxes,  see  Taxes,  III.  c. 
Delegation  of  Power  to,  see  Constitutional 

Law,  I.  d,  4. 
Quorum   at  ^Meeting  of,   see  Parliamentary 

Law,    5-10. 
Quo  Warranto  to,  see  Quo  Warranto,  13,  14. 

Individual  action  by  members. 

1.  The  signature  of  a  majority  of  the 
members  of  a  board  of  trustees,  separately 
obtained  to  a  paper  when  the  board  is  not 
in  session,  w^ill  not  constitute  a  valid  act 
by  the  board.  Curry  Library  v.  Bliss,  151 
Mass.  364,  25  N.  E.  92,  7 :  765 

2.  A  majority  of  the  trustees  of  a  corpo- 
ration, acting  in  their  individual  names,  can- 
not act  for  the  board  itself  and  bind  the 
corporation,  without  any  meeting  of  the 
board.  Thompson  v.  West,  59  Neb.  677,  82 
N.  W.  13,  49:  337 

3.  Members  of  a  board  of  education  act- 
ing individually  and  separately,  and  not  as 
a  board  convened  for  the  transaction  of  bus- 
iness, cannot  accept  a  proposal  to  make  any 
contract  whatever  that  will  bind  them  as  a 
corporation.  Honaker  v.  Pocatalico  Dist. 
Bd.  of  Edu.  42  W.  Va.   170,  24  S.  E.  544, 

32:  413 

4.  The  consent  of  supervisors  to  the  con- 
struction of  a  street  railway  over  a  road 
must  be  given  when  they  are  together  and 
acting  in  their  official  character,  and  should 
appear  upon  the  township  books  kept  by  the 
town  clerk.  Pennsylvania  R.  Co.  v.  Mont- 
gomery County  Pass.  R.  Co.  167  Pa.  82,  31 
Atl.  4G8,  27:  766 
Notice  of  meeting. 

5.  The   specification  of  certain  objects  in 


BOARDS  OF  AGRICULTURE— BOILERS. 


281 


a  notice  of  a  meeting  of  a  board  of  alder- 
men does  not  exclude  action  upon  any 
others  which  are  within  the  range  of  its 
general  powers.  State  ex  rel.  Rylands  v. 
Pinkerman,     63     Conn.     176,     28  Atl.     110, 

22:  653 

6.  Want  of  notice  to  rightful  commission- 
ers of  the  meeting  of  a  pretended  board  is 
fatal  to  action  by  the  latter  without  a 
quorum  of  legal  members.  Id. 
Disqualification  of  members. 

Of  School  Directors  to  Try  Superintendent, 
see  Schools,  70. 

7.  The  disqualification  of  two  out  of  fif- 
teen freeholders  elected  to  prepare  a  city 
cliarter  under  Cal.  Const,  art.  11,  §  8,  which 
does  not  in  terms  require  the  joint  action 
of  all  the  members  of  the  board,  but  does 
provide  that  it  shall  be  signed  by  the  mem- 
bers or  a  majority  of  them, — do^s  not  pre- 
vent the  lawful  organization  and  action  as 
a  board  by  the  other  members.  People  ex 
rel.  Hoffman  v.  Hecht,  105  Cal.  621,  38  Pac. 
941,  27:203 

8.  The  disqualification  of  one  of  the  three 
members  of  a  town  board  to  sit  on  a  hear- 
ing for  the  revocation  of  a  license  will  make 
the  decision  of  the  board  revoking  the  li- 
cense invalid.  State  ex  rel.  Getchel  v.  Brad- 
ish,  95  Wis.  205,  70  N.   W.  172,         37:  289 

9.  The  chairman  of  a  town  board  is  dis- 
qualified to  sit  as  a  member  of  the  board  in 
hearing  a  case  for  the  revocation  of  a  li- 
cense to  sell  intoxicating  liquors,  under  Wis. 
Rev.  Stat.  §§  1558  et  seq.,  when  he  has  pro- 
cured and  hired  a  minor  to  purchase  whisky 
of  the  dealer  for  the  purpose  of  procuring 
evidence  on  which  to  revoke  the  license.  Id. 


BOARDS  OF  AGRICULTURE. 

Mandamus  to,  see  Mandamus,  38. 
See  also  Agricultural  Societies,  6. 


BOARDS  OF  CLAIMS. 


See  Claims. 


BOARDS  OF  CONTROL. 

Conclusiveness  of  Decision  of,  see  Judgment, 
270. 


BOARDS  OF  EDUCATION. 

Jurisdiction   of  Equity   as  to,   see   Equity, 

41. 
Liability  of  Member  of,  see  Officers,  201. 
See  also  Schools,  III.  a. 


BOARDS  OF  TRADE. 

Court's  Power  to  Correct  Abuses  by  Com- 
mittee, see  Courts,  229. 

Estoppel  of  Member  of,  see  Estoppel,   152. 

Protection  of  Quotations  by,  see  Injunction, 
128;   Property,  2. 

Tn    General,    see    Exchanges. 

Editorial  Notes. 

Compulsory   service  by.      15:  322. 
Review   of  decisions   of,   against   members. 
49:  358,  361. 


BOAT. 

As  Dwellinghouse  within  Rule  Authoriz- 
ing Resistance  of  Attempt  to  Enter,  see 
Assault  and  Battery,  27. 

Right  of  Owner  of,  to  Abate  Obstruction  of 
Stream,  see  Nuisances,  93,  94,  96-'.;  8. 


BODY  SNATCHING. 


Removal  of  Corpse  from  Grave,  see  Corpse, 
0-5. 


BOGUS  COIN  DETECTER. 

Validity  of  Patent  on,  see  Patents,  4. 


BOHEMIAN  OATS. 

Enforcement  of    Note    Given  for,  see  Bills 

and  Notes,  242. 
Illegality   of   Bohemian    Oat    Contract,    see 

Contracts,  607. 
Evidence  of  Fraud  as  to,  see  Evidence,  1788. 
Fraud  in   Note  for,   see  Fraud  and  Deceit, 

58. 

Editorial   Notes. 

Fraud  in  contract  for  sale  of.    6:  498,*  601.* 
Notes  for.     6:  501.* 


BOILERS. 

Presumption  of  Negligence  from  Explosion 
of,  see  Evidence,  552,  553. 

Inspection  of,  see  Municipal  Corporations, 
259,  260. 

Conclusiveness  of  Report  of  Inspectors,  see 
Evidence,  2307. 

Explosion  of,  see  Explosions  and  Explo- 
sives, 18-23. 

As  a  Fixture,  see  Fixtures,  23,  36,  51,  52. 

Injury  to  Employee  by  Explosion  of,  see 
Master  and  Servant,  124-126,  606. 

Mi.nicipal  Liability  for  Explosion  of,  see 
Municipal  Corporations,  543-545;  No- 
tice, 71. 


BOMBS  —BONDS. 


Editorial   Notes. 

Dutv    of    master    to    inspect    steam    boiler. 
41:87. 


BOMBS. 

Explosion  of,  see  Fireworks,  1,  2. 


BONA  FIDE  PURCHASERS. 

Of  Bills  or  Notes,  see  Bills  and  Notes,  V.; 
VI.  §  22. 

Of  Municipal  Bonds,  see  Bonds,  III.  b,  5. 

Of  Certificate  of  Deposit,  see  Banks,  186. 

Of  Mortgaged  Chattels,  see  Chattel  Mort- 
gage.  79. 

Of  Check,  see  Banks,  110,  132-134,  159; 
Checks,  IV.;  Telegraphs,  44. 

Of  Corporate  Stock,  see  Corporations,  424, 
425.  428,  429,  439,  443-447,  453,  454, 
675. 

Of  County  Warrants,  see  Counties,  55. 

Or  Coupons,  see  Coupons,  2. 

Of  land  Descended  or  Devised,  see  Descent 
and    Distribution,    65. 

Of  Goodc  Consigned,  see  Carriers,  845;  Es- 
toppel, 121;    Factors.  10. 

Of  Store  Order,  see  Master  and  Servant,  24. 

Of  Part  of  Mortgage  Debt,  see  Insolvency, 
15. 

Of   ;\iortgage.   see   Mortgage,    101. 

Of  Property  Subject  to  Trusts,  see  Notice, 
14. 

Of  Stolen  Property,  Compromise  of  Rights, 
sec   Compromise   and  Settlement,   10. 

Of  Land,  see  Evidence,  2275;  Real  Prop- 
erty. 62-64,  67,  70-75;  Vendor  and  Pur- 
chaser. 86,  110;  IV.  §  6. 

Of  Personalty,  see  Sale,  III.  d. 

From  Grantee  in   Escrow,  see  Escrow,  4. 

From  Fraudulent  firantor,  see  Fraudulent 
Ccnvcyances,  57. 

From  f;rantpo  of  Lunatic,  see  Incompetent 
Persons.  24. 

■Curing  Defective  Acknowledgment  in  Fa- 
vor of,  see  Acknowledgment,  26. 

Ivstornel  as  against,  see  Estoppel,  45,  148, 
297. 

ICxecutor  as,  see  Executors  and  Administra- 
tors, 73. 

Pl(  d>;ee  as.  see  Pledge  and  Collateral  Seciwi- 
ty.  29. 

B}^  Deed  l^nrecorded  at  Time  of  Assignment 
in  Insolvency,  see  Insolvency.  12. 

At    Sli.Miirs   Sale,   see   Judicial   Sale,   27. 

At  Foreclosure  Sale,  see  Mortgage,  198.  200. 

Trover  against,  see  Trover,  24. 

Editorial    Notes. 

AVlio  is,  within  protection  of  statute  of 
frauds.     31 :  612. 

Sufficiency  of  pre-existing  debt  to  give  one 
character  of  l)ona  fide 
purchaser  or  mortgagee. 
19:  .590. 

Tre-existing  debt  as  consideration  for  bona 
fide  purchase  of  property 
not       negotiable.     36:  llil. 


Law  determining  character  of  person  as 
bona  fide  holder  of  bill  or 
note.     61 :  202. 

Effect  of  notice  to  indorsee  of  facts  and  cir- 
cumstances respecting 
note.      10:677;*     12:41.* 

Row  far  a  purchaser  at  execution  or  judi- 
cial sale  is  protected  as  a 
bona  fide  purchaser.  21: 
33. 


BOND  FOR  TITLE. 


Failure  to  Obtain  Possession  under,  as  De- 
fense to  Purchase  Money  Note,  see 
Bills  and  Notes,  292. 

Right  to  Crop  on  Foreclosure  of,  see  Crops, 
10. 

Presumption  that  Crops  were  Planted  be- 
fore Commencement  of  Foreclosure  of, 
see  Evidence,  746. 


BONDHOLDERS. 

Rights  of,  on  Mortgage,  see  Mortgage,  I,  f. 


BONDS. 

1.  In  General;    For  Private  Oligations. 
II.  For  Indemnity  and  Security. 

a.  In  Oeneral. 

b.  For  Fidelity  of  Employees  or  Cor- 

porate   Officers, 
e.  B.y  Public  OflScers. 

1.  In    General. 

2.  Liability   for    Money   Lost  or 

Stolen, 
d.  By  State  Depository. 

III.  Commercial  and  Municipal. 

a.  Corporate  Bonds. 

b.  Municipal  Bonds. 

1.  In    General ;     Power   to   Issue 

Generally. 

2.  For  What  Purpose. 

3.  Authorizing;     Elections. 

4.  Form;     Conditions   and   Regu- 

lations of  Issue. 

5.  Who  are,  and  Rights  of.  Bona 

Fide  Holders. 

6.  Estoppel   as  to;    Ratification. 

7.  Payment ;    Time  and  Place  of. 

IV.  Editorial  Notes. 

On  Appeal,  see  Appeal  and  Error,  III.  g. ;  X.; 
XL   §   8:    Justice  of  the  Peace,  30. 

Of  Assignee  for  Creditors,  see  Assignments 
for  Creditors,   36,   55. 

For  Attachment,  see  Attachment,  53. 

For  Retention  of  Chattels  Attached,  see  At- 
tachment, .59. 

Bail   Bonds,  see   Bail   and  Recognizance. 

To  Secure  Right  in  Beach,  see  Common,  2. 

Of  Commission  Merchant,  Delegation  of 
Power  to  Fix  Amount,  see  Constitution- 
al Law,  223. 


BONDS.   I. 


283' 


JFrom  Merchant  Selling  Farm  Products,  see 
Constitutional  Law,  478. 

Prom  Owner  of  Property  on  Which  Build- 
ing is  Constructed,  see  Constitutional 
Law,  817. 

'On  Issuing  Duplicate  Certificates  of  Stock, 
see  Corporations,  369-37  L 

For  Creditors'  Bill,   see   Creditors'   Bill,   15. 

For  Good  Behavior,  see  Damages,  172. 

_As  Security  for  Compensation  in  Eminent 
Domain,  see  Eminent  Domain,  303,  304, 
306. 

•Of  Personal  Representative,  see  Executors 
and  Administrators,  30,  31,  91-97,  IV. 
§   14. 

•Of  Guardian,  see  Guardian  and  Ward,  III. 

Of  Pest  House  Keeper,  see  Hospitals,  5. 

In  Injunction  Suit,  see  Injunction,  488-492. 

On  Proceedings  for  Creating  irrigating  Dis- 
trict, see   Irrigating  District^,  7. 

For  Alimony,  see  Judgment,  48. 

To  Release  liuilding  nom  Mechanic's  Lien, 
see  Mechanics'  Liens,   107. 

FYoni  Electric  Light  Company,  see  Munici- 
pal Corporations,  64.   • 
•Of  Junk   Dealers,  Second-Hand  Dealers,  or 
Pawnbrokers,    see    Municipal    Corpora- 
tions, 229. 

J'or  Maintenance  of  Xew  Pavements,  see 
Public  Improvements,  28. 

For  Removal  of  Cause,  see  Removal  of 
Causes,  30,  49,  50. 

In  Replevin,  see  Replevin,  26. 

In  Trover,  sec  Trover,  35. 

Alteration    of,    see    Alteration    of    Instru- 
ments,  I. 
'Trust  in   Proceeds  of,  see  Assignments  for 
Creditors,   95. 

EflFect,  on  Surety,  of  Principal's  Discharge 
in   Bankruptcy,  see  Bankruptcy,  53. 

Liability  on,  as  Fixed  Liability,   see  Bank- 
ruptcy, 35, 
•Contlict  of  Laws  as  to,  see  Conflict  of  Laws, 
4.5-47. 

Invalid  Consideration  for,  see  Contracts, 
475. 

As  Condition  of  Exercising  Corporate  Fran- 
chise,  see   Corporations,   95. 
Coupons  on,  see  Coupons. 

Covenant  in  Bond  to  Town  Treasurer,  see 
Covenant.  106. 

Stipulation  for  Liquidated  Damages  in,  see 
Damages,    172,    180. 

Damages  on,  see  Damages.  III.  a,  2;  Replev- 
in, 26,  and  also  infra,  IV.;  §  4. 

Estoppel   by.   see  Estoppel,   62,  63. 

By  Life  Tenant,  Eviction  Constituting 
Breach  of.  see  Eviction. 

Bill  to   Protect   Rights  of  Town  under,  see 

Executors    and    Administrators,    5. 
"Necessity  of  Requiring  of  Legatee,  see  Exec- 
utors  and   Administrators.   174. 

Effect  of  Administrator's  Failure  to  Take 
Refunding  Bond,  see  Executors  and  Ad- 
ministrators.  185. 

Suit  by  Administrator  without  Giving,  see 
Costs   and   Fees.  21. 

Gift  of,  see  Gift.  4.  25,  26,  34. 
■Guaranty  by,  see  Guaranty.  41. 

Effect  of  Taking  from  Railroad  Laying 
Tracks  in  Street,  see  Highways.  2.37. 

Approval  of,  on  Holiday,  see  Holidays,  3. 


Delivery  on  Sunday,  see  SJnday,  4. 

Interest  on,  see  Interest,  12,  33,  64,  79,  80, 
83. 

Usury  in,  see  Usury,  9,  20. 

Joint  Liability  of  Obligors  in,  see  Joint 
Creditors  and  Debtors,  5j  Judgment, 
39. 

Judgment  on,  see  Judgment,  21,  44,  48,  and 
also  infra,  IV.  §  3. 

Nunc  Pro  Tunc  Entry  of  Judgment  on,  see 
Judgment,  76. 

Effect  of  Judgment  Against  Principal,  see 
Judgment,  II.  e,  4,  and  also  infra,  IV. 
§    7. 

Rendition  of  Judgment  against  Surety  on, 
see  Judgment,  21. 

Relative  Rights  of  Life  Tenant  and  Remain- 
dermen in,  see  Life  Tenants,  46-49. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  46,  84,  121,  122. 

As  Lottery  Ticket,  see  Lottery,  16. 

Priority  over  Mechanic's  Lien,  see  Mechan- 
ics' Liens,   19.  ^ 

Liability  for  Requiring  Excessive  Bond,  see 
ilunicipal   Corporations,   510. 

Notice  that  Delivery  was  Unauthorized,  see 
Notice,  5. 

Intervention  of  Surety,  see  Parties,  216. 

Agreement  to  Make  Payment  by,  see  Pay- 
ment, 2,  51. 

Allegation  of  Indorsement  on,  see  Pleading, 
285. 

Liability  and  Release  of  Sureties  on.  Gen- 
erally, see  Principal  and  Surety. 

Failure  of  Part  of  Obligors  to  Sign,  see 
Principal   and   Surety,    14-17. 

Erasure  of  Name  of  Surety  on.  see  Princi- 
pal  and   Surety,   18-20. 

Record  of,  see  Real  Property,  79. 

Reformation  of,  see  Reformation  of  Instru- 
ments, 1. 

Requirement  of,  from  Foreign  Partnership, 
see  Statutes,  442. 

Transfer  Tax  on  Ignited  States  Bonds,  see 
Taxes,  614,  615. 

Effect  of  Unaccepted  Tender  on  Liability  on, 
see  Tender,  1. 


I.  In  General;  For  Private  Obligations. 

Burden  of  Proving  Consent  to  Delivery 
Without  Signing  by  Principal,  see  Evi- 
dence, 280. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

1.  One  who  executes  a  bond  may  be  liable 
upon  it  although  his  name  does  not  appear 
in  the  body  of  it.  Campbell  v.  Rotering.  42 
Minn.    115.  43  N.  W.   795,  6:  278 

2.  An  obligor  in  a  bond  conditioned  for 
the  ultimate  payment  of  all  promissory 
notes,  etc.,  discounted  for  a  corporation  of 
which  he  is  a  stockholder,  the  proceeds  of 
which  notes  are  used  for  the  purposes  of 
the  corporation,  and  therefore  in  effect  for 
the  profit  of  the  obligor  himself,  will  not 
be  granted  the  special  protection  of  the 
law  accorded  to  one  who  guarantees  the 
faithful  discharge  of  the  duties  of  an  of- 
fice. National  Exch.  Bank  v.  Gay.  57  Conn. 
224,  17   Atl.  555,  4:  343 


284 


BONDS,  II.  a. 


3.  Where  a  bond  provides  a  penalty  for 
failure  to  perform  its  covenants,  recovery 
cannot  be  had  upon  the  covenants  and  for 
the  penalty  also.  Carey  v.  Mackey,  82  Me. 
516,  20  Atl.  84,  9:  113 

4.  Where  a  bond  running  to  a  town  treas- 
urer is  to  secure  privileges  to  the  inhabi- 
tants of  the  town,  the  obligor  cannot  have 
the  option  to  pay  the  penalty  and  avoid  the 
condition,  as  the  penalty  would  go  to  the 
town,  instead  of  to  the  inhabitants.  Mid- 
dletown  v.  Newport  Hospital,  16  R.  I.  319, 
15  Atl.  800,  1 :  191 
Signing  in  blank. 

Evidence  as  to,  see  Evidence,  2065. 

5.  The  signer  of  a  blank  bond  which  is 
filled  up  thereafter  with  terms  different  from 
those  authorized  by  him  is  not  bound  there- 
by unless  he  has  become  estopped  as  to  the 
holder  of  the  bond  to  deny  that  he  author- 
ized it  to  be  filled  up  in  that  form.  Rich- 
ards V.  Day,   137  N.  Y.   183,  33  N.  E.   146, 

23:  601 
To  savings  bank. 

6.  A  bond  taken  by  a  savings  bank  in  ex- 
cess of  the  amount  which  it  is  authorized 
to  take  by  Iowa  Acts  15th  Gen.  Assem. 
chap.  60,  §  18,  limiting  the  amount  of  mon- 
ey that  may  be  loaned  to  any  person  or 
firm,  is  not  for  that  reason  void, — especial- 
ly when  it  is  not  limited  to  indebtedness 
for  l)orrowed  money.  Benton  County  Sav. 
Bank  v.  Boddicker,  105  Iowa,  548,  *75  N. 
W.  G32,  45:  321 
Necessity  of  seal. 

7.  An  instrument  in  the  form  of  a  bond 
but  without  seals,  if  executed  for  a  suffi- 
cient consideration  and  delivered  to  take  ef- 
fect as  security,  is  a  valid  contract  obliga- 
tion. First  Nat.  Bank  v.  Briggs,  69  Vt. 
12,  37  Atl.  231,  37:  845 

8.  A  seal,  or  a  scrawl  to  which  the  stat- 
ute gives  the  same  effect,  is  essential  to  a 
bond;  and  an  instrument  without  such  seal 
or  scrawl  is  not  a  bond,  although  reciting 
in  the  hody  thereof  that  the  obligors  or 
parties  thereto  have  set  their  hands  and 
seals.  Williams  v.  State,  25  Fla.  734.  6  So. 
831,  6:  821 


n.  For  Indemnity  and  Security. 
a.  In  General. 

For  Editorial  Notes,  see  infra,  IV.  f§   1-6. 

9.  An  action  on  a  bond  to  save  a  person 
harmless  from  all  damages  and  costs  by 
reason  of  a  claim,  and  to  pay  all  costs  and 
damages  to  which  he  may  be  put  by  reason 
thereof,  does  not  accrue  until  he  has  actual- 
ly paid  such  costs  and  damages.  Campbell 
v.    Rotering.   42    Minn.    115,   43   N.   W.    705. 

6:  278 

10.  A  bond  conditioned  to  pay  the  full 
amount  of  the  indebtedness  of  a  firm,  but 
which  recites  an  intention  to  indemnify 
against  all  losses  hy  reason  of  the  failure 
of  the  firm  to  pay  indebtedness  then  ow- 
ing or  afterwards  contracted,  is  not  limited 
to    the    indebtedness    then    existing.      Ben- 


ton   County    Sav.    Bank   v.   Boddicker,    105 
Iowa,  548,  75  N.  W.  632,  45:  321 

To  indemnify  sheriff. 
Liability   on    Forthcoming   Bond,   see   Levy 

and  Seizure,  66. 
Liability  of  Obligors  on  Indemnity  Bond  to 

Sheriff,  see  Levy  and  Seizure,  63. 

11.  A  bond  to  indemnify  a  sheriff  against 
liability  for  faihire  to  execute  final  process, 
given  by  the  person  against  whom  the  proc- 
ess is  directed,  is  invalid.  Harrington  v. 
Crawford,  136  Mo.  467,  38  S.  W.  80,  35:  477 
To  support  wife. 

See  also  Divorce  and  Separation,  130. 

12.  A  defendant  who  is  made  a  party  by 
substituted  service  cannot  be  required  to 
give  a  bond  to  support  his  deserted  wife. 
Murray  v.  Murray,  115  Cal.  266,  47  Pac. 
37,  37:626 

13.  The  surety  on  a  bond  by  a  wife  to 
secure  her  husband  against  claims  for  fu- 
ture support  will  be  liable  thereunder  to 
the  obligee  for  amounts  which  the  obligee 
has  been  compelled  to  pay  on  a  decree  of 
the  probate  court  in  a  subsequent  proceed- 
ing by  the  wife  to  obtain  money  for  her 
support;  and  this  although  such  de- 
cree had  been  reversed  by  agreement  of  the 
parties.  Winn  v.  Sanford,  148  Mass.  3'». 
18  N.  E.  677,  1:  .512 
Probate  bond. 

14.  Affirmance  of  a  judgment  in  favor  of 
a  county  judge  upon  a  probate  bond  will 
not  be  prevented  by  the  fact  that  his  in- 
terest has  been  transferred  and  the  estate 
settled,  since  the  rights  of  the  transferee 
may  be  protected  by  the  trial  court.  Beld- 
en  V.  Hurlbut,  94  Wis.  562,  69  N.  W.  357. 

.37:  853 

Contractor's  bond. 

Attachment  of  Surety's  Property  in  Action 
on,  see  Attachment,  7. 

Measure  of  Damages  on,  see  Damages,  109. 

Pleading  as  to,  see  Pleading,  25,  66. 

Subrogation  of  Surety,  see  Subrogation,  24. 

See  also  Parties.  69,  70;  Principal  and  Sure- 
ty. 26,  32. 

15.  The  fact  that  the  bond  is  voluntary 
and  fovinded  upon  a  valid  consideration  will 
not  enable  a  city  to  enforce  a  bond  by  a 
street  contractor  to  repair  a  street  for  five 
years,  when  the  contract  is  entirely  beyond 
the  general  scope  of  the  powers  of  the  city, 
even  if  it  has  been  fully  executed  by  the 
city.  Portland  v.  Portland  Bituminous 
PaVinir  &  Improv.  Co.  33  Or.  307,  52  Pac. 
28.  44:527 

16.  A  bond  to  a  city  by  a  street  con- 
tractor which  constitutes  an  independent 
undertaking  by  the  latter  to  keep  the 
street  and  pavement  in  repair  for  five  years, 
and  which  covers  in  effect  all  injuries  liable 
to  arise  from  whatsoever  source,  is  not  au- 
thorized by  statutory  power  to  take  secur- 
ity by  bonds  for  the  performance  of  the 
contract.  Id. 

17.  Payment  in  full  and  acceptance  of  a 
plant  by  a  city  under  a  contract  for  its 
construction  will  release  sureties  on  the  con- 
tractor's bond  from  liability  under  a  con- 
dition that  materials  shall  be  paid  for, 
where    the    contract    nrovidos    that    before 


BONDS,  II.  b. 


285 


payment  is  made  the  contractor  shall  pre- 
sent receipts  in  full  for  all  materials  fur- 
nished. Electric  Appliance  Co.  v.  United 
States  Fidelity  &  G.  Co.  110  Wis.  434,  85 
N.   W.  648,  53:  609 

18.  Money  furnished  by  a  bank  to  pay 
labor  claims  is  not  within  the  protection  of 
a  bond  conditioned  to  pay  persons  supply- 
ing the  principal  with  "labor  or  materials 
in  the  prosecution"  of  his  work.  United 
States  Use  of  Fidelity  Nat.  Bank  v.  Run- 
die,  46  C.  C.  A.  251,  107  Fed.  227,     52:  505 

19.  A  bond  reciting  the  proposal  of  a 
board  of  commissioners  "to  advance"  the 
money  to  the  obligor,  who  binds  himself 
to  complete  the  job  of  furnishing  heating 
apparatus  for  a  public  building,  in  conse- 
quence of  the  default  of  the  principal  con- 
tractor for  the  building,  is  a  contract  to  pay 
for  the  work  when  completed,  and  not  mere- 
ly to  "advance"  money.  Gibson  County  v. 
Cincinnati  Steam  Heating  Co.  1^8  Ind.  240, 
27  N.  E.  612,  12:  502 
Liquor  bond. 

See  also  Intoxicating  Liquors,  11,  162. 

20.  The  bond  to  be  executed  by  a  person 
making  application  for  a  license,  to  sell 
intoxicating  liquors,  in  accordance  with 
Minn.  Gen.  Stat.  1894,  §  2026,  is  one  of 
indemnity,  given  to  protect  the  state,  as 
well  as  such  private  parties  as  are  author- 
ized to  maintain  actions  under  the  pro- 
visions of  §  1992;  and  the  amount  thereof, 
fixed  by  statute  at  $2,000,  is  a  penalty,  and 
not  in  the  nature  of  liquidated  damages, 
to  be  recovered  as  an  entire  sum  in  case 
any  of  the  conditions  of  the  bond  are  vio- 
lated. State  v.  Larson,  83  Minn.  124,  86 
N.   W.   3,  54:  487 

21.  A  statutory  liquor  bond  which  must 
be  approved  by  the  town  board,  and  then 
filed  with  the  county  treasurer,  who  has  no 
discretion  as  to  the  filing,  becomes  opera- 
tive on  its  approval  and  before  filing,  so  as 
to  make  the  sureties  liable  for  the  acts  of 
the  principal  between  the  dates  of  the  ap- 
proval and  the  filing.  Brockway  v.  Petted, 
79  Mich.  620,  44  N.  W.  61,  7:  740 

22.  A  liquor  bond  dated  back  several  days 
before  the  time  of  signing,  and  reciting  that 
the  principal  then  professes  to  carry  on  the 
business  of  liquor  dealer,  relates  back  to 
and  covers  the  period  from  its  date.         Id. 

23.  A  recital  in  a  liquor  bond,  that  the 
principal  then  professes  to  carry  on  the 
business  of  a  liquor  dealer,  estops  the  sure- 
ties from  denying  that  fact.  Id. 

b.  For  Fidelity  of  Employees  or  Corporate 
Officers. 

Defense  of  Illegality  in  Action  on  Bond,  see 

Banks,  41. 
Requiring    Execution    of,    by    Surety   Com- 

])any,  see  Constitutional  Law,  695. 
Validity  of  Stipulation  as  to  Conclusiveness 

of  Evidence,  see  Contracts,  442. 
Business    of.    as   Insurance,    see    Insurance, 

1341. 

24.  A  contract  guaranteeing  the  honesty 
of  employees  is  not  void  as  agamst  public 


policy.     Fidelity  &  C.  Co,  t.  Eickhoflf,  63 
Minn.   170,  65  N.  W.  351,  30:  586 

25.  The  obligation  of  an  esrJployee  to  in- 
demnify a  guaranty  insurance  company  for 
payments  to  his  employer  in  satisfaction  of 
a  guaranty  policy  executed  at  his  request 
insuring  against  his  fraud  or  dishonesty 
is  coextensive  with  the  insurer's  obligation 
to  indemnify  the  employer.  Id. 

26.  Provisions  as  to  proof  of  liability  on 
a  gu.nranty  policy  insuring  against  fraud  or 
dishonesty  of  an  employee  are  as  binding 
on  the  employee  at  whose  request  the  pol- 
icy was  executed,  when  reimbursement  is 
claimed  by  the  insurer,  as  they  were  upon 
the  insurer  in  favor  of  the  employer.  Id. 
Of  agent. 

27.  Failure  to  disclose  to  persons  sign- 
ing an  agent's  bond  in  ignorance  of  the  fact, 
that  he  has  been  short  in  his  accounts,  and 
is  retained  in  his  employment  crfly  on  con- 
dition that  he  pays  the  shortage  and  exe- 
cutes a  new  bond,  is  such  a  fraud  on  their 
rights  as  will  discharge  them  from  all  lia- 
bility on  the  bond.  Connecticut  (Jen.  L. 
Ins.  Co.  V.  Chase,  72  Vt.   176,  47  Atl.  825, 

53:  510 

28.  The  sureties  in  a  bond  given  by  an 
agent  to  his  principal,  to  secure  the  faith- 
ful performance  of  a  contract  by  the  terms 
of  which  the  agent  was  required  to  make 
weekly  reports  to  his  principal  of  the  bus- 
iness transacted  by  him,  are  released  from 
liability  on  the  bond  where  the  principal, 
without  the  knowledge  or  consent  of  the 
sureties,  permitted  the  agent  to  continue 
in  its  employ,  and  to  transact  its  business 
under  the  agency,  without  requiring  him  to 
make  such  weekly  reports,  since  this  con- 
stituted a  material  departure  from  the  terms 
of  the  contract,  and  one  affecting  the  sub- 
stantial rights  of  the  sureties.  Fidelity 
Mut.  Life  Asso.  v.  Dewey.  83  Minn.  389,  86 
N.  W.  423,  54:  945 

29.  Liability  upon  a  fidelity  bond  which 
insures  against  loss  through  the  fraud  or 
dishonesty  of  an  agent  cannot  be  extended 
to  cover  failure  to  pay  for  goods  purchased 
by  a  factor  or  broker,  although  the  appli- 
cation and  letter  of  advice  stated  that  ap- 
plicant wished  the  bond  to  cover  the  lia- 
bility of  one  who  was  engaged  in  an  agency 
or  commission  business,  and  who  desired  a 
credit  with  applicant.  Orion  Knitting  Mills 
v.  United  States  Fidelity  &  G.  Co.  137  N. 
C.  565,  50  S.  E.  304,  70:  167 
Of  firm  as  agent. 

30.  Sureties  on  a  bond  for  the  fidelity  of 
a  firm  as  agents  for  the  obligee  are  not  li- 
able for  funds  misappropriated  by  one  mem- 
ber of  such  firm  after  its  dissolution  and 
the  retirement  of  the  other  partner  from  the 
business  of  such  agency,  even  if  the  obligee 
does  not  know  of  such  dissolution.  Stan- 
dard Oil  Co.  v.  Arnestad,  6  N.  D.  255,  69  N. 
W.  197,  34:  861 
Corporate  officer  generally. 

31.  The  surety  on  the  bond  of  an  officer 
of  a  corporation  is  not  discharged  from  lia- 
bility thereon  by  the  fact  that  the  books  of 
the  oflScer  were  open  to  inspection  by  the 


286 


BONDS.  II.  b. 


obligees  in  his  bond,  and  that  they  failed 
to  detect  defaults  which  a  close  examination 
might  have  disclosed,  where  the  officer  bore 
a  good  reputation  and  was  generally  be- 
lieved by  the  obligees  to  be  honest,  and 
they  had  no  knowledge  or  notice  of  unfaith- 
fulness, if  they  acted  in  good  faith  toward 
the  surety.  McMullen  v.  Winfield  Bldg.  & 
Loan  Asso.  G4  Kan.  298,  67  Pac.  892.  56:  924 

32.  The  liability  of  a  surety  on  the  bond 
of  an  officer  of  a  coi-poration  extends  to 
the  defaults  of  the  entire  year,  where  the 
bond  recited  that  the  officer  had  been  elect- 
ed for  the  year  beginning  .January  1,  1885, 
and  ending  December  31,  1885,  was  condi- 
tioned that,  if  he  should  faithfully  perform 
the  duties  of  his  office  "during  said  year," 
the  bond  should  be  void  and  of  no  effect, 
but  otherwise  should  remain  in  full  force 
and  effect,  although  the  officer  was  not 
elected  until  some  time  after  the  first  of  the 
year,  but  had  held  successive  terms  and 
been  continually  in  office  for  several  years 
before  and  after  1885.  Id. 

33.  A  bond  insuring  a  foreign  corporation 
against  the  dishonesty  of  its  manager  in 
Pennsylvania  is  void  and  there  can  be  no  re- 
covery thereon  when  such  corporation  has 
not  complied  with  the  Pennsylvania  statute 
requiring  the  filing  of  a  statement  and  de- 
claring that  any  persons  transacting  busi- 
ness for  such'  corporation  without  comidi- 
ance  shall  be  guilty  of  a  misdemeanor. 
"McCanna  &  F.  Oo.  v.  Citizens'  Trust  &  S. 
Co.  39  IT.  S.  App.  332.  24  C.  C.  A.  11,  76 
Fed.  420,  35:  236 
Cashier. 

Pleasure  of  Damages  on,  see  Damages,  108. 
Flectioi.    of   Remedy   Preventing    Recovery 

on,  see  Election  of  Remedies,  55. 
Admissions  of.  as  against  Surety,  see  Evi- 
dence, 1465. 
See  also  Principal  and  Surety.  22-24,  46. 
.34.  The  cashier  of  a  national  bank,  who 
misappropriates  its  stock  which  he  has  tak- 
en in  his  own  name  as  security  for  a  note 
to  the  bank  which  he  indorses  in  order  to 
evade  the  prohibition  against  loans  by  the 
bank  on  the  securitv  of  its  own  sto?k,  is 
guilty  of  misappropriating  the  pronerty  of 
the  bank  intrusted  to  him  as  cashier;  and 
his  sureties  are  therefore  liable.  Walden 
Xat.  Bank  v.  Birch.  130  N.  Y.  221,  29  K  E. 
127.  14:  211 

35.  The  appropriation  by  a  bank  cashier 
to  his  own  \ise,  of  money  bclonsring  to  the 
bank,  is  a  breach  of  the  conditions  of  his 
bond  that  he  shall  well  and  faithfully  dis- 
charge the  duties  imposed  on  him  as  such 
cashier  by  the  charter  and  by-laws  of  the 
hank,  although  there  are  no  by-laws,  r  'd 
the  charter  merely  requires  him  to  make 
oath  that  he  will  discharge  his  duties  dili- 
gently, honestly,  and  impartially,  and  pro- 
hibits him  from  borrowing  money  from 
the  bank.  McShane  v.  Howard  Bank.  73 
Md.   1.35,  20  Atl.  776,  10:  552 

36.  The  fact  that  accommodation  notes 
have  been  procured  by  a  defaulting  bank 
officer,  to  be  used  as  apparent  assets  during 
an  expert  examination  of  the  bank,  for  the 
purpose  of  concealing  his  default,  will   not 


operate  as  the  payment  of  the  amount  owed" 
by  the  defaulting  officer,  so  as  to  release- 
the  sureties  on  his  bond,  if  the  notes,  after 
being  used  to  conceal  the  default  by  means 
of  false  checks  and  credits,  were  returned 
to  their  makers  without  anything  ever  be- 
ing paid  on  them.  Id. 

37.  The  bond  of  a  cashier  of  a  bank  condi- 
tioned for  the  faithful  discharge  of  his 
duties  as  cashier  forever  so  long  as  he  shall 
occupy  the  position  extends  for  but  one- 
year,  where  his  first  election  was  for  the  en- 
suing year,  and  he  was  thereafter  re-elected 
annually,  and  a  by-law  of  the  company  pro- 
vided that  he  should  be  appointed  to  hold 
his  office  during  the  pleasure  of  the  board. 
First  Xat.  Bank  v.  Briggs.  69  Vt.  12,  37  Atl. 
231,  37:  845- 

38.  The  bond  of  a  cashier  of  a  national 
bank  for  the  faithful  performance  of  his  du- 
ties "for  and  during  all  the  time  he  shall 
hold  the  said  office''  covers  defaults  in  years 
subsequent  to  that  in  which  it  is  given,  not- 
withstanding the  by-laws  of  the  bank  pro- 
vide that  the  cashier  shall  be  elected  annuaU 
ly  and  a  resolution  appointing  him  to  the- 
offiee  was  passed  in  each  year,  as  the  act  of 
Congress  relating  to  national  banks  provides 
that  the  cashier  may  be  dismissed  at  pleas- 
ure of  the  board  of  directors,  and  the  first- 
appointment  under  sucTi  act  is  for  an  unlim- 
ited term.  Westerve:t  v.  MohrenstecVer, 
22  C.  C.  A.  93.  40  U.  S.  App.  221,  76  Fed. 
118,  34:  477" 

39.  It  is  no  defense  to  an  action  upon  the 
bond  of  a  cashier  of  a  national  bank  for 
misai)propriation  of  money  and  excessive- 
loans,  that  the  bank  or  its  receiver  has  ob- 
tained judgment  upon  the  notes  taken  by 
the  cashier  for  such  money  and  loans.  Id. 
Other  employees  of  bank. 

Limitation  of  Action  on,   sec  Limitation  of 
Actions,  123. 

40.  Dishonesty  in  the  position  of  assistant- 
cashier  of  a  bank  is  covered  by  a  fidelity 
policy  insuring  against  dishonesty  as  re- 
ceiving teller  or  in  the  duties  "to  which  in- 
the  employer's  serA'ice  he  may  be  subse- 
quently appointed  or  assigned."  although  no 
notice  of  the  employee's  appointment  as  as- 
sistant cashier  had  been  given  to  the  insur- 
er. Fidelity  &  C.  Co.  v.  Gate  Citv  Xat. 
Bank.  97  Ga.  634,  25  S.  E.  392.         33:  821 

41.  Statements  made  by  the  cashier  of  a 
bank  without  authority,  for  the  purpose  of 
inducing  a  person  to  become  a  surety  on  the 
bond  of  a  teller,  will  not  bind  the  bank  so- 
as  to  relieve  the  surety  if  the  statements- 
are  not  true.  Lieberman  v.  First  Xat.  Bank, 
2  Penn.   (Del.)  416.  45  Atl.  901.  43  Atl.  .30.5, 

48:  514 

42.  The  published  reports  of  a  bank  pur- 
porting to  show  its  resources  and  liabilities, 
but  which  were  not  made  to  induce  a  person 
to  sign  the  bond  of  an  employee  of  the 
bank,  will  not  relieve  such  surety,  who  re- 
lied upon  them,  from  liability  because  the 
reports  failed  to  show  previous  defalcations 
by  sflch  employee,  which  he  had  concealed 
by  false  entries.  Id. 

43.  A  bank  cashier's  knowledge  of  the 
fraud  or  dishonest v  of  an  assistant  cashier 


BONDS,  II.  c,  1. 


28T 


and  teller,  or  of  his  arts  involving  loss  to 
the  bank,  is  not  imputable  to  the  bank  so 
as  to  make  it  the  duty  of  the  bank  to  give 
immediate  notice  thereof  to  a  guaranty  in- 
surance company  under  a  policy  requiring 
notice  of  such  acts  of  whicli  the  bank  has 
knowledge.  Fidelitv  &  C.  Co.  v.  Oate  City 
Nat.  Bank,  97  Ca.  634,  25  S.  E.  392,   33:  821 

44.  If  a  bank  clerk,  during  a  series  of 
years  covered  by  different  bonds  guaran- 
teeing the  bank  against  "loss"  through  his 
acts,  falsifies  the  accounts  of  a  customer  so 
as  to  give  him  a  fictitious  credit,  the  court, 
in  determining  the  liabilitj'  of  the  surety 
on  the  last  bond,  will  appropriate  the  de- 
])()sits  of  the  customer,  made  during  that 
time,  to  the  checks  drawn  during  the  same 
term,  and  if,  when  so  applied,  the  drafts 
have  not  exceeded  the  deposits,  no  loss  has 
resulted  to  the  bank  for  which  the  last 
suretv  can  be  charged.  First  National  Bank 
V.  Xational  Suretv  Co.  64  C.  C.'A.  601,  130 
Fed.  401,  *  66:  777 

45.  A  bank  clerk  who,  having  gone  on  a 
vacation,  has  overstayed  his  time  for  a 
short  period,  must  be  regarded  as  still 
in  the  service  of  the  bank,  where  that  re- 
lation is  yet  recognized  by  the  employer  for 
the  purpose  of  adjusting  the  liability  of  his 
bondsman  for  losses  suffered  by  the  bank 
because  of  fictitious  credits  entered  by  him 
in  the  accounts  of  a  customer,  so  that 
transactions  which  occur  during  such  ab- 
sence must  be  taken  into  consideration.  Id. 
Express  messenger. 

46.  I'nder  the  bond  of  a  conductor  of  a 
railroad  train  to  an  express  company  for 
the  faithful  discharge  of  his  duties  as  an 
express  messenger,  reciting  that  it  shall  not 
be  impaired  by  a  change  of  his  place,  posi- 
tion, or  duties,  or  by  his  temporary  absence 
from  duty,  a  surety  cannot  defend  against 
an  action  for  his  negligence  in  carrying  a 
j)ackage  of  money,  on  the  ground  that  he 
had  been  given  a  temporary  leave  of  ab- 
sence, during  which  a  person  alleged  to  be 
guilty  of  stealing  the  money  had  been  put 
in  his  place,  and  become  acquainted  with 
the  safe  in  which  the  money  was  carried. 
Frink  v.  Southern  Exp.  Co.  82  Ga.  33,  8  S. 
E.  882,  3:  482 

47.  The  conductor  of  a  train  who  is  in- 
trusted with  a  package  of  money  as  an  ex- 
press messenger  may  be  found  by  the  jury 
to  be  guilty  of  negligence  rendering  him  and 
his  sureties  liable  on  his  bond  to  the  ex- 
press company,  in  leaving  the  car  wherein 
the  money  is  placed  in  a  small  iron  safe, 
with  an  ordinary  lock  and  key,  standing  at 
a  place  abo\it  75  yards  from  the  depot,  with 
no  house  near  by.  from  sundown  until  half- 
])ast  9  o'clock  at  night,  while  he  goes  up 
town  to  play  cards  and  visit  drinking  sa- 
loons, although  the  only  instructions  he  re- 
ceived when  the  package  was  given  him 
were  to  put  it  in  the  safe,  lock  the  safe,  and 
put  the  key  in  his  pocket.  Id. 

c.  By  Public  Officers. 

1.  In  General. 

Premature  Action  on  Bond  of  County  Treas- 
urer, see  Action  or  Suit,  19. 


Effect  of  Invalidity  to  Sell  Office,  see  Con- 
tracts,  507. 

Estoppel  to  Pursue  Treasurer's  Bond,  see- 
Estoppel,  30. 

Interest  on  County  Treasurer's  Bond,  see 
Interest,   64. 

Presumption  of  Misappropriation  by  Princi- 
pal, see  Evidence,  416. 

Of  .Justice  of  the  Peace,  see  Damages,  280; 
.Justice  of  the  Peace,  6,  8. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  121,  122. 

Compelling  Approval  of,  see  Mandamus,  140, 
142. 

Effect  of  Failure  to  Give,  see  Officers,  71,  75,. 
76. 

Liabilitv  of  Officers  Generally,  see  Officers, 
II.  *c. 

Of  Postmaster,  see  Postoffice,  4. 

Judgment  on  Joint  Official  Bond,  see  Judg- 
ment, 39. 

For  Editorial  Xotes,  see  infra,  IV,  §§  3,  4, 
7. 

48.  The  failure  of  a  state  treasurer  to  ac- 
count to  the  .state  for,  or  deliver  to  hi» 
successor  in  office,  the  interest  received  by 
him  on  deposits  of  the  public  money,  is  a 
breach  of  the  conditions  of  his  official  bond 
for  which  he  and  his  sureties  are  liable. 
State  V.  McFetridge,  84  Wis.  473,  54  N.  W. 
1,  998,  20:  223 

49.  A  certificate  of  deposit  for  moneys, 
deposited  by  a  county  treasurer  in  a  bank 
before  the  giving  of  a  bond  to  secure  de- 
posits of  public  money  therein  is  to  be  re- 
garded as  the  equivalent  of  currency  with 
respect  to  liability  on  such  bond,  when  de- 
posited in  such  bank  after  the  bond  is  given. 
Allibone  v.  Ames,  9  S.  D.  74,  68  N.  W.  165, 

33:  585 

50.  Neither  the  negligence  of  the  county 
commissioners  in  respect  to  their  supervi- 
sory duties  over  the  treasury,  nor  their  ac- 
tual malfeasance  facilitating  or  encouraging 
a  conversion  of  the  public  funds  by  the 
treasurer,  is  a  defense  in  an  action  on  his 
bond.  Waseca  County  Comrs.  v.  Sheehan, 
42  Minn.  57,  43  N.  W.  690,  5:  785 

51.  An  action  may  be  prosecuted  by  a 
county  against  its  treasurer  and  the  sure- 
ties on  his  official  bond,  without  first  ob- 
taining leave  from  the  court.  Id. 
After  end  of  term. 

For  Editorial  Notes,  see  infra,  IV.  §  7. 

52.  The  defalcation  of  an  officer  while 
holding  over  pending  the  election  or  appoint- 
ment of  his  successor,  and  after  the  end  of 
the  year  for  which  he  was  elected,  imder  a 
city  charter  providing  that  he  shall  hold 
his  office  until  his  successor  is  elected  and 
qualified -makes  his  sureties  liable  upon  his 
official  bond.  Baker  City  v.  Murphy,  30  Or. 
405,  42  Pac.  133,  35:  88 

53.  The  extension  by  statute  of  the  term 
of  an  officer  who  was  elected  for  two  years, 
and  "until  his  successor  is  elected  or  qual- 
ified," will  not  make  his  sureties  liable  for 
any  default  occurring  after  the  two  years 
have  expired,  although  the  bond  states  the 
time  when  the  term  commences,  but  not 
when  it  ends,  and  further  provides  that  it 


2d8 


BONDS,  II.  c,  1. 


shall   remain   in    effect   while   he   shall    act 
"under  such  election."    King  County  v.  Fer- 
ry, 5  M'ash.  536,  32  Pac.  538,  19:  500 
During  second  term. 
Liability  of  Officers  Generally,  see  Officers, 

205*   206. 
For  Editorial  Notes,  see  infra,  IV.  §  7. 

54.  The  sureties  for  the  second  term  of  a 
ooinity  treasurer  are  prima  facie  liable  for 
a  deficiency  occurring  at  the  expiration  of 
that  term,  and  have  the  burden  of  prov- 
ing that  this  deficiency  occurred  during  the 
prTor  term.  Pine  County  v.  Willard,  39 
Minn.   125,  39  X.  W.  71,  1:  118 

55.  The  sureties  for  the  second  term  of  a 
county  treasurer  are  liable  for  money  com- 
ing into  the  treasury  during  that  time,  al- 
though it  was  placed  there  merely  to  cover 
a  prior  defalcation.  Id. 

56.  The  fact  that  a  county  treasurer  had 
converted  funds  during  his  first  term  does 
not  conclusively  show  that  such  conversion 
was  identical  with  the  deficiency  at  the  ex- 
piration of  his  second  term,  where  there 
is  evidence  of  continued  conversion  during 
the  second  term.  Id. 

57.  The  knowledge  of  county  commission- 
ers upon  acceptance  of  the  bond  of  the  coun- 
ty treasurer  for  a  second  term,  that  he  had 
been  chargeable  with  conversion  of  funds 
during  his  first  term,  does  not  avoid  the 
bond.  Id. 
Loan  to  city  treasurer. 

Kvidencc  as  to,  see  Evidence,  2184. 

58.  Money  is  not  loaned  to  a  city  treas- 
urer who  is  also  a  banker,  so  as  to  relieve 
his  sureties  from  liability  for  it,  by  his  in- 
valid promise,  made  to  induce  his  elec- 
tion, that  he  will  pay  interest  on  the  bal- 
ances in  favor  of  the  city.  Wilkes  Barre 
V.  Rockafellow,    171  Pa.    177,  33    Atl.    269. 

30:  393 

59.  Interest  paid  to  himself  as  city  treas- 
urer by  such  officer  on  money  which  he  had 
borrowed  from  a  fund  in  his  custody  is 
held  by  him  as  treasurer;  and  his  failure 
to  pay  it  over  to  his  successor  is  a  breach 
of  his  official  bond.  Id. 

GO.  A  city  treasurer  who  borrows  money 
in  his  custody,  from  sinking  fund  commis- 
sioners who  have  the  power  to  invest  it, 
holds  the  money  as  a  debtor  rather  than  as 
an  officer;  and  the  sureties  on  his  bond  are 
not  lirible  for  his  repayment  of  the  money, 
but  only  for  his  care  of  the  security  held 
by  him.  Id. 

Examination  or  settlement  of  county  treas- 
urer's account. 

61.  Negligence  or  carelessness  in  the  ex- 
amination of  accounts  or  reports  of  a  coun- 
ty treasurer  will  not  constitute  any  defense 
to  his  sureties  for  his  failure  to  pay  over 
funds  received  bv  him.  Rush  v.  Johnson 
County,  48  Neb.  l",  66  N.  W.  1023,        32:  223 

62.  Periodical  settlements  made  with  a 
county  treasurer  under  a  statutory  require- 
ment do  not  have  the  efTect  of  a  judicial 
determination,  and  an  approval  of  his  ac- 
count or  report  is  not  conclusive  in  favor 
of  his  bondsmen.  Id. 


Sheriff. 

Punitive  Damages  on,  see  Damages,  49. 

Who  may  Maintain  Action  on,  see  Parties, 

72. 
Substitution   of   Parties   in   Action   on,   see 

Parties,   220. 
For  Editorial  Notes,  see  infra.  IV.  §§  4,  7. 

63.  A  sheriff  is  not  liable  in  an  action  on 
his  official  bond  in  the  name  of  the  state 
for  acts  done  under  process  which  was  void 
upon  its  face.  McLendon  v.  State  Use  of 
Kennedy,    92     Tenn.    520,   22    S.   W.    200, 

21:738 

64.  The  sureties  on  a  sheriff's  bond  are 
not  liable  for  his  wrongful  acts  under  proc- 
ess Mhich  is  void  upon  its  face.  Id. 

65.  A  sheriff's  wrongful,  illegal,  and  op- 
pressive act  in  levying  on  a  growing  crop 
of  peaches  and  failing  to  gather  them,  or 
permit  the  owner  to  do  so,  until  they  have 
become  rotten  and  worthless,  is  an  official 
act,  for  which  an  action  can  be  maintained 
upon  his  bond.  State  ex  rel.  Wilson  v.  Fow- 
ler, 88  Md.   001,  42  Atl.  201,  42:  849 

06.  The  official  bond  of  a  sheriff  is  not 
liable  for  his  act  in  sending  out  a  photo- 
graph and  description  of  a  person  committed 
to  his  charge  together  with  a  statement  of 
the  accusation  against  him,  in  such  a  man- 
ner as  to  be  libelous.  State  ex  rel.  Bruns 
v.  Clausmeier,   154  Ind.  599,  57  N.  E.   541. 

50:  73 

67.  The  malicious  act  of  a  sheriff  in  aiding 
a  mob  to  take  a  prisoner  from  a  jail  and 
kill  him  does  not  create  any  liability  of  the 
sureties  on  his  official  bond.  State  Use  of 
Cocking  V.  Wade,  87  Md.  529,  40  Atl.   104, 

40:  628 

68.  The  wrongful  shooting  by  a  deputy 
sheriff  of  a  prisoner  attempting  to  escape 
from  arrest  for  a  misdemeanor  is  an  official 
act  which  creates  a  liability  on  the  sher- 
iff's bond.  Brown  v.  Weaver,  76  Miss.  7, 
23  So.   388,  42:  423 

69.  A  sheriff  is  liable  on  his  bond  for  the 
killing  by  a  deputy  of  a  third  person  under 
the  mistaken  belief  that  he  is  one  for 
whose  arrest  on  a  charge  of  felony  he  has 
a  warrant,  and  that  the  killing  is  necessary 
to  prevent  his  escape,  where  the  statute 
provides  that  the  sheriff  shall  be  liable  on 
his  bond  for  any  misconduct  or  default  of 
his  deputies.  Johnson  v.  Williams,  111  Ky. 
289,  63  S.  W.  759,  54:  220 
Deputy  sheriff. 

W\\o    may   [Maintain    Action    on   Bond,   see 
Executors  and   Administrators.   110. 

70.  The  bond  of  a  deputy  sheriff  condi- 
tioned for  the  faithful  performance  of  his 
duty,  and  containing  a  reference  to  a  con- 
tract between  him  and  the  sheriff  which  is 
illegal  because  in  violation  of  W.  Va.  Code, 
chap.  7,  §  5,  prohibitinc:  the  sale  or  farm- 
ing out  of  any  office  under  the  laws  of  the 
state,  is  void  as  to  the  private  interest  of 
the  sheriff  and  his  deputy,  and  no  recovery 
can  be  had  against  the  latter  for  a  sum 
which  he  has  agreed  to  pay  to  the  sheriff 
in  consideration  of  such  illegal  contract;  but 
the  sheriff  may  recover  thereon  for  taxes, 
fines,  etc.,  received  by  the  deputy  by  vir- 
tue of  his  office,  since  such  funds  have  come 


BONDS.  II.  c.   2. 


into  his  hands  as  a  de  facto  officer,  and  be- 
long primarily  to  the  public  and  innocent 
private  individuals.  White  v.  Cook,  51  W. 
Va.  201,  41  S.  E.  410,  57:  417 

Constable. 

Conclusiveness    Against    Sureties    of   Judg- 
ment Against  Constable,  see  Judgment, 
277. 
For  Editorial  Notes,  see  infra,  IV.  §  4. 
•  71.  The  sureties  on  a  constable's  bond  are 
not  liable  for  the  return  of  money  taken  by 
him   from  an  execution  defendant  to  stay 
the  execution  and  give  time  to  perfect  an 
appeal,    under    a    promise   to    return    it    in 
case  the  appeal  is  perfected,  since  such  act 
is   not    within    the    constable's    authority. 
Feller  v.   Gates,   40   Or.   543,   67   Pac.    416, 

56:  630 
Mayor. 

72.  The  sureties  on  the  official  bond  of  a 
mayor  are  liable  for  his  act  in  ckwsing  a  per- 
son's arrest  without  a  warrant,  and  trying, 
convicting,  and  sentencing  him  for  an  of- 
fense not  made  punishable  by  the  ordi- 
nances of  the  city  under  authority  of  which 
he  claimed  to  act.  State  ex  rel.  McLauren 
v.  McDaniel,  78  Miss.  1,  27  So.  994,  50:  118 
Notary. 

73.  Giving  notice  of  dishonor  of  protest- 
ed paper  is,  in  the  absence  of  contrary  in- 
structions, an  official  duty  of  a  notary  pub- 
lic under  the  Nebraska  statutes,  for  neg- 
lect of  which  an  action  is  maintainable  by 
the  party  jnjured,  upon  his  official  bond. 
Williams  v.  Parks,  63  Neb.  747,  89  N.  W. 
395,  56:  759 

2.  Liability  for  Money  Lost  or  Stolen. 

Liability  of  Officers  Generally,  see  Officers, 
203-207. 

74.  A  county  treasurer  who  is  by  law  re- 
quired safely  to  keep,  account  for,  and  pay 
over  the  public  moneys  that  come  to  his 
hands,  and  is  forbidden  to  make  any  loan 
therefrom,  is  not  a  mere  bailee,  but  his 
liability  on  his  bond  is  absolute,  except  for 
loss  from  overruling  necessity,  such  as  the 
act  of  God  or  the  public  enemy.  Maloy  v. 
Bernalillo  County  Comrs,  10  N.  M.  638,  62 
Pac.  1106,  52:  126 

75.  An  officer  is  not  an  insurer  of  the 
safety  of  public  funds  in  his  hands,  on  a 
bond  faithfully  to  perform  his  duties  and 
to  collect  and  pay  over  moneys,  but  is  re- 
sponsible only  for  the  exercise  of  good  faith, 
dilijjonce,  prudence,  caution,  and  a  disinter- 
ested effort  to  keep  and  preserve  the  fund 
for  those  entitled.  State  use  of  Overton 
County  V.  Copeland,  96  Tenn.  ^96,  34  S.  W. 
427,  31 :  844 

76.  A  statute  requiring  a  treasurer  to 
keep  safely  and  pay  over  the  money  re- 
ceived by  him  in  his  official  capacity  mere- 
ly states  his  common-law  duties,  and  does 
not  enlarge  his  responsibility  as  bailee,  or 
that  of  his  sureties.  Healdsburg  v.  Mulli- 
gan, 113  Cal.  205,  45  Pac.  337,  33:  461 

77.  A  bond  given  by  an  officer  does  not 
extend  the  obligation  imposed  on  him  by 
la.w,  unless  by  force  of  constitutional  or  leg- 
islative  provisions;     but  his   duty  and  lia- 

L.R.A.  Dig.— 19. 


bility  as  to  moneys  coming  into  his  hands 
are  measured  by  the  law  of  bailment.  Wil- 
son V.  People  use  of  Pueblo  &  A.  V.  R.  Co. 
19  Colo.  199,  34  Pac.  944,  22:  449 

78.  The  rule  which  makes  a  public  officer 
an  insurer  of  the  safety  of  the  public  funds 
under  his  control  is  not  based  upon  the  mere 
fact  that  he  is  a  public  officer  intrusted  with 
public  funds,  but  is  based  upon  the  princi- 
ple that  by  his  bond,  considered  alone  or  in 
connection  with  the  statutes  defining  his 
duties,  he  has  contracted  to  be  become  an  in- 
surer; and  the  rule  is  limited  to  cases  in- 
volving such  contracts.  State  v.  Gramm,  7 
Wyo.  329,  52  Pac.  533,  40:  600 
Lost  by  failure  of  bank. 

Liability  of  Probate  Judge,  see  Judges,  65. 
For  Editorial  Notes,  see  infra,  IV.  §  7. 

79.  The  loss,  through  failure  of  a  bank  in 
which  it  was  deposited,  of  money  received 
by  the  clerk  of  the  district  court  in  his 
official  capacity,  renders  the  clerk  and  the 
sureties  on  his  bond  liable,  although  the 
bank  was  solvent  at  the  time  the  money 
was  deposited,  and  the  clerk  in  making  the 
deposit  acted  in  good  faith  and  with  rea- 
sonable care  and  diligence.  Northern  P.  R. 
Co.  V.  Owens,  86  Minn.  188,  90  N.  W.  371, 

57 :  634 

80.  The  loss  of  money  deposited  by  a 
clerk  of  court  in  a  bank  of  reputed  solven- 
cy, acting  as  a  prudent  man  would,  will 
not  make  him  liable  on  his  bond  to  pay  over 
moneys  that  come  into  his  hands  Wilson 
V.  People  use  of  Pueblo  &  A.  V.  R.  Co.  19 
Colo.  199,  34  Pac.  944,  22:  449 

81.  A  deposit  of  public  money  by  a  coun- 
ty treasurer,  without  authority  of  law,  in 
a.  bank  that  has  not  given  bond  and  become 
an  authorized  depository,  renders  him  lia- 
ble for  the  loss  of  the  money  by  bank  fail- 
ure, under  Neb.  Comp.  Stat.  1901,  chap.  18, 
art.  3,  §  21,  making  such  unauthorized  de- 
posit a  felony,  where  other  statutes  pro- 
vide that  the  treasurer  shall  pay  out  money 
only  on  warrant,  except  where  specifil  pro- 
vision otherwise  is  made,  and  provide  gen- 
erally that  an  officer  shall  be  responsible 
on  his  bond  for  moneys  received  by  him,  and 
make  no  provision  for  his  exemption  from 
liability  for  the  loss  of  the  money  except 
where  it  is  deposited  in  a  bank  which  has 
given  bond  and  become  an  authorized  de- 
pository. Thomssen  v.  Hall  County,  63  Neb. 
777,  89  N.  W.  393,  .57:  303 

82.  The  loss  of  public  money  by  a  bank 
failure  will  not  prevent  liability  of  the 
county  treasurer  upon  his  bond  to  pay  the 
money  as  the  commissioners  shall  direct, 
although  he  was  not  negligent  in  selecting 
the  bank  and  the  county  has  not  provided 
a  suitable  and  safe  place  in  which  to  de- 
posit the  money.  Fairchild  v.  Hedges,  14 
Wash.  117,  44  Pac.  125,  31:  851 

83.  Liability  for  money  lost  by  failure  of 
the  bank  in  which  it  was  deposited  with  due 
care  by  the  state  treasurer  is  not  imposed 
by  his  bond  conditioned  to  account  for  all 
money  coming  into  his  hands  by  virtue  of 
his  office,  and  to  perform  all  the  duties  of 
his  office,  when  his  statutory  duty  is  to  re- 
ceive and  keep  all  moneys  of  the  state  not 


290 


BONDS,  II.  d,   III.  a. 


required  to  be  received  and  kept  by  some 
other  person.  State  v.  Gramm,  7  Wyo.  329, 
52   Pac.   .533,  40:  690 

84.  The  theft  of  public  money  or  its  loss 
by  bank  failure  without  the  fault  or  negli- 
gence of  a  county  treasurer  does  not  exon- 
erate him  or  his  bondsmen  from  liability  on 
a  bond  conditioned  for  the  faithful  account- 
ing for  and  paying  over  of  the  funds.  Bush 
V.  .Tohiison  County,  48  Xeb.  I,  66  N.  W.  1023, 

32:  223 

8.5.  A  certificate  of  deposit  received  by  a 
county  treasurer  from  his  predecessor  as 
representing  public  funds,  and  surrendered 
for  a  new  certificate  payable  to  himself  as 
county  treasurer,  is  the  equivalent  of  the 
money  for  the  purpose  of  charging  his 
bondsmen  therefor  on  a  failure  of  the  bank 
which  had  the  money.  Id. 

Stolen.  •     . 

See  also  supra,  84. 
For  Editorial  Notes,  see  infra,  IV.   §  7. 

86.  The  forcible  taking  by  robbers  of  mon- 
ey in  the  custody  of  a  city  treasurer  is  a 
defense  in  an  action  upon  his  bond  provid- 
ing that  he  shall  "well  and  faithfully  per- 
form all  official  duties,"  where  by  the  Con- 
stitution and  laws  of  the  state  the  re- 
ceipt of  the  money  makes  him  a  bailee,  and 
not  a  debtor.  Healdsburg  v.  Mvilligan,  113 
Cal.  205.  4.5  Pac.  337.  '  33:  461 

87.  Recovery  on  a  bond  conditioned  that 
a  postmaster  shall  turn  over  the  money  re- 
ceived in  the  money  order  department  of 
his  office  is  not  prevented  by  the  fact  that 
the  money  was  embezzled  without  his  fault 
or  neglect,  by  a  clerk  holding  office  under 
the  civil  service  rules  of  the  government. 
Brvan  v.  United  States,  33  C.  C.  A.  617.  61 
U.'S.  App.  259,  90  Fed.  473,  53:218 

d.  By  State  Depository. 

88.  The  approval  of  a  bond  given  by  a 
bank  selected  as  a  state  depository  by  the 
secretary  of  state  and  the  attorney  general 
only,  is  sufficient  where  the  governor  is 
present  at  the  conference  upon  the  sub- 
ject, under  Xeb.  Comp.  Stat.  1895,  p.  1036, 
§  3,  requiring  such  bond  to  be  "approved  by" 
the  three  officers  named.  Bartlev  v.  'Slc- 
serve,  51  Xeb.   116,  70  X.  AA'.  5.32,"     36:  746 

80.  The  deposit  by  a  state  treasurer  of 
public  funds  in  a  bank  chosen  as  a  state  de- 
pository, in  excess  of  half  the  amount  of 
the  i»enalty  of  the  bond  given  by  such  bank, 
in  violation  of  the  Xebraska  statute,  will  | 
not  release  either  the  bond  or  the  sureties 
on  the  bond  from  their  obligation  to  re- 
pay the  moneys  deposited,  to  half  the 
amount  of  the  bond  and  the  accretions 
thereof.  Id. 


HI.  Commercial    and    Municipal, 
a.  Corporate  Bonds. 

Liability  of  Stock  Broker  in  Case  of  Forg- 
ery nf.  see  Brokers.  13. 

Corporate  Liability  to  Owner  of  Registered 
Bonds,  see  Corporations,  203. 


Bondholders  as  Members  of  Corporation,  see 
Corporations,  426. 

Efi'ect  of  Forgery  on  Liability  on,  see  Cor^ 
porations,    238. 

Provision  against  Liability  of  Stockholders- 
on,  see  Corporations,  558. 

Liability  of  Bondholders  as  Members  of 
Corporations,  see  Corporations,  549. 

Stipulation  for,  in  Subscription  to  Stoc|f,. 
see  Corporations,  379. 

Purchase  of,  by  Corporate  Officers,  see  Cor> 
porations,    268. 

Pledge  of,  see  Corporations,  190,  778. 

Coupons  on,  see  Coupons. 

Estoppel  of  Majority  Bondholders  to  As- 
sert  Prior  Lien,  see  Estoppel,  292. 

Burden  of  Proving  Bona  Fides  of  Holder, 
see  Evidence,  674. 

Guaranty  of,  by  Parties  Interested  in  De- 
cedent's Estate,  see  Executors  and  Ad- 
ministrators, 153. 

Fraud  in  Sale  of,  see  Fraud  and  Deceit,  30, 
7L 

Conclusiveness  of  Decision  as  to,  see  Judg- 
ment, 231,  232. 

Rights  of  Holders  of,  on  Mortgage,  see- 
Mortgage,  I.  f. 

Consideration  of,  in  Determining  Amount 
of  Indebtedness,  see  Municipal  Corpo- 
rations,  364-368. 

Bondholders  as  Parties  to  Action,  see  Par- 
ties,  172,   174. 

Right  of  Trustee  for  Bondholders  to  Main- 
tain Action  on  Contract,  see  Parties, 
46. 

Preference  of  Bondholders  in  Proceeds  in 
Receiver's  Hands,  see  Receivers,  88-90,. 
92.   94-98,    103. 

Specific  Performance  of  Contract  as  to,  see- 
Specific  Performance,  31. 

Taxation  of,  see  Taxes,  146,  147,  339,  342, 
427,  436,  526. 

Transfer  Tax  on,  see  Taxes,  618,  619. 

Trust  for  Bondholders,  see  Trusts.  164, 
165. 

See  also  Mechanics'  Liens,  85-87;  Trusts,. 
208,  210,  2H. 

90.  Bonds  and  coupons  reciting  that  they 
are  upon  the  terms  and  conditions  set  forth 
in  a  mortgage  securing  them  charge  the 
holder  with  notice  of  the  provisions  in  the- 
mortgage.  MrClelland  v.  Norfolk  S.  R. 
Co.  110  X.  Y.  469,  18  N.  E.  237,  1:  299 

91.  The  bonds  of  a  corporation  subject  to 
the  provisions  of  the  general  manufacturing 
act  (X.  Y.  Laws  1848,  chap.  40,  §  2)  -may  be 
issued  by  it  at  .less  than  par  for  either 
money  or  property  required  for  its  use. 
(ianiblo  V.  Queens  Countv  Water  Co.  123  N. 
Y.  01.  23  N.  E.  201,        '  9:  527 

92.  A  constitutional  limitation  on  the 
issue  of  corporate  bonds  except  for  money, 
labor  done,  or  propert.y  received,  and  a  pro- 
vision that  all  fictitious  indebtedness  shall 
be  void,  do  not  prevent  pledging  the  bonds 
of  a  corporation  for  an  amount  in  excess  of 
the  indebtedness  to  be  secured.  Nelson  v. 
Hubbard.  96  Ala.  238,  11  So.  428,  17:  375 

93.  A  corporation  which  purchases  prop- 
erty intending  to  pay  therefor  by  issuing- 
its   stock   and   bonds,   the   former   of   which 


BONDS,  III.  b,   1. 


291 


must  be  issued  at  par,  Avill  not  be  permit- 
ted to  issue  a  much  larger  quantity  of 
bonds  taken  at  their  actual  value  than  is 
necessary  to  make  up  the  difl'erence  between 
the  par  value  of  the  stock  offered  and  the 
purchase  price  of  the  property,  the  surplus 
of  bonds  being  rendered  necessary  by  the 
fact  that  the  actual  value  of  the  stock  is 
much  less  than  par.  Gamble  v.  Queens 
Countv  Water  Co.  123  N.  Y.  91,  25  N.  E. 
201,     "  9:  527 

94.  A  corporation  which  has  power  to  is- 
sue bonds  to  raise  money  for  the  construc- 
tion of  its  works  may  issue  them  in  pay- 
ment for  works  already  constructed,  which 
are  suitable  for  its  purposes  and  can  be  pur- 
chased by  it.  Id. 

95.  Bondholders  of  a  corporation  take 
their  bonds  with  knowledge  that  the  con- 
tinuance of  the  charter  rights  '*ind  other 
franchise  of  the  company  depends  upon  the 
faithful  performance  of  its  duties  to  the 
public.  Palestine  Water  &  P.  Co.  v.  Pales- 
tine. 91  Tex.  540,  44  S.  W.  814.  40:  203 

95a.  A  holder  of  corporate  bonds  secured 
by  mortgage  is  not  given  a  present  right  of 
action  for  the  principal  of  the  bonds  upon 
default  in  payment  of  interest,  by  the  fact 
that  the  mortgage  provides  that  upon  de- 
fault the  holder  of  one  ti^ird  of  the  amount 
of  bonds  may  reijuire  a  sale  of  the  property, 
and  the  "bonds  shall  forthwith  become  due 
and  payable."  American  Xat.  Bank  v. 
American  Wood  Paper  Co.  19  R.  I.  149,  32 
Atl.  305,  29:  103 

96.  A  corporation  which  has  received  and 
enjoyed  the  fruits  of  its  mortgage  bonds 
cannot  assail  their  validity  in  the  hands  of 
a  bona  fide  holder  for  value,  on  the  ground 
that  they  exceeded  in  amount  one  half  of 
the  capital  stock  paid  in,  contrary  to  the 
provisions  of  the  statute.  Wood  v.  Corry 
Water  Works  Co.  44  Fed.  146,  12:  168 

97.  Payment  of  the  proceeds  of  regis- 
tered bonds  belonging  to  a  corporation,  to 
its  treasurer,  who  has  no  authority  to  sell 
or  transfer  its  securities,  but  who  has  taken 
them  from  the  corporation's  vault  for  the 
purpose  of  misappropriating  them,  is  made 
in  his  character  of  thief,  and  cannot  be  re- 
garded as  having  been  made  to  the  corpora- 
tion, so  as  to  prevent  its  recovery  of  the 
value  of  the  bonds  from  those  into  whose 
hands  they  are  traced;  and  the  fact  that 
tiie  parties  dealing  with  him  were  deceived 
as  to  the  character  in  which  he  acted  is 
immaterial.  Jennie  Clarkson  Home  for 
Children  v.  Missouri,  K.  &  T.  R.  Co.  182  N. 
Y.  47,  74  X.  E.  571.  70:  787 
Negotiability. 

For  Editorial  Notes,  see  infra,  IV.  §  8. 

98.  Corporate  bonds  secured  by  mort- 
gage and  payable  to  bearer  are  so  far 
negotiable  that  the  holder  may  maintain 
an  action  thereon  in  his  own  name. 
American  Xat.  Bank  v.  American  Wood 
Paper  Co.  19  R.  I.  149,  32  Atl.  305.     29:  103 

^  99.  That  a  statute  giving  "a  title  by  de- 
livery and  a  right  of  action  to  the  .holder  of 
negotiable  paper  in  terms  applied  only  to 
promissory  notes  will  not  prevent  the  courts 


from  recognizing  corporate  bonds  as  negotia- 
ble. Id. 
100.  That  a  bond  is  payable  ten  years 
after  date  or  sooner  after  five  years  does 
not  destroy  its  negotiability.  Id. 

b.  Municipal  Bonds. 

1.  In    General;    Power   to    Issue    Generally. 

Due  Process  in  Issue  of  Improvement 
Bonds,  see  Constitutional  Law,  893. 

Impairing  Obligation  of  Contract  to  Issue, 
see  Constitutional  Law,  1129. 

Proposition  to  Issue,  as  a  Contract,  see 
Contracts,  1. 

Coupons  on,  see  Coupons. 

County  Tax  to  Pay  Bridge  Bonds,  see 
Counties,  61. 

Duty  to  Convert  into  Cash,  see  Counties,  46. 

Jurisdiction  of  Suit   on,   see  Courts,   344. 

Federal  Jurisdiction  of  Suit  to  Enjoin  Is- 
suance, see  Courts,  ?,47. 

Following  State  Decision  as  to,  see  Courts, 
550. 

Injunction  against  Issuance  of,  see  In- 
junction, 347. 

Interest  on,  see  Interest,  79,  83. 

Laches  Preventing  Cancelation  of,  see 
Limitation  of  Actions,  36,  37. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  47,  183. 

Compelling  Indorsement  and  Attestation  of 
Certificate  for  Issuance  of,  see  Man- 
damus, 68. 

Liability  for  Original  Consideration  of  In- 
valid Bond,  see  Municipal  Corporations, 
321. 

Parties  to  Action  to  Have  Bonds  Declared 
Void,  see  Parties,  173. 

Special  Legislation  as  to,  see  Statutes,  365. 

Title  of  Statute  as  to,  see  Statutes,  205. 

As  to  County  Warrants,  see  Counties, 
III.  b. 

See  also  infra,  107,  131. 

For  Editorial  Notes,  see  infra,  IV.  §  8. 

101.  Unlimited  power  to  issue  bonds, 
granted  to  a  municipal  corporation  by 
special  charter,  is  not  revoked  by  a  general 
law  giving  such  corporations  power  to  is- 
sue bonds  for  specified  purposes,  where  a 
proviso  to  the  general  lavt'  expressly  pro- 
vides that  it  shall  not  be  construed  to  limit 
the  powers  theretofore  conferred  by  any 
special  charter.  Huron  v.  Second  Ward 
Sav.  Bank,  30  CCA.  38,  57  U.  S.  A  pp.  593. 
86  Fed.  272,  49:  534 

101a.  County  bonds  issued  under  au- 
thority of  a  statute  passed  in  violation  of 
the  state  Constitution  are  null  and  void. 
Wilkes  County  v.  Call.  123  N.  C  308,  41  S. 
E.  481,  44:  252 

102.  Bonds  issued  upon  a  vote  at  a  school 
meeting  held  in  a  district  organized  by  the 
county  superintendent  under  Dak.  Laws 
1879.  chap.  14,  in  which  district  officers  were 
elected  and  exercised  their  functions,  teach- 
ers Avere  employed,  and  school  taught,  are 
not  void  because  of  failure  to  comply  with 
statutory  provisions  regulating  the  organi- 
zation of  such  district,  as  to  matters  going 
to  the  jurisdiction  of  the  superintendent  to 


292 


BONDS,  ni.  b,   3. 


organize  the  district,  since  the  district  is 
a  de  facto  municipal  corporation.  Coler  v. 
Dwiglit  School  Tvvp.  3  N.  D.  249,  55  X.  W. 
587,  28:  649 

Amount. 

103.  An  amended  city  charter  providing 
that  the  city  may  borrow  money  by  issuing 
bonds  not  to  exceed  the  sum  of  $100,000, 
omitting  the  words  of  the  former  charter, 
"but  never  in  any  form  to  make  the  city 
liable  for  exceeding  that  amount  in  the  ag- 
gregate," gives  authority  to  issue  bonds 
subsequent  to  the  date  of  the  charter  to 
the  extent  of  $100,000,  although  a  bonded 
indebtedness  already  existed.  Mauldin  v. 
Oreenville.  33  S.  C.  1,  11  S.  E.  434,  8:  291 
Right  of  commissioners  to  purchase. 

104.  Commissioners  of  the  sinking  fund  of 
a  city  have  no  authority  to  purchase  from 
the  city,  for  that  fund,  bonds  of  the  city  at 
the  time  when  they  are  offered  for  sale  by 
the  city,  even  when  there  is  no  statute  ex- 
pressly forbidding  such  purposes.  Kelly  v. 
Minneapolis,  63  Minn.  125,  65  N.  W.  115, 

30:  281 

2.  For  What  Purpose. 

Purposes  for  which  Public  Money    may   be 

Used  Generally,  see  Public  Moneys,  II. 
For  County  Drains,  see  Drains  and  Sewers, 

1;    Public   Moneys,  58,  59. 
For   Construction  of  Electric    Light    Plant, 

see  Municipal  Corporations,  333. 
For    Reimbursement    of    Officer,    see    PuT)lic 

Moneys,  28. 
Evidence  as  to,  see  Evidence,  1470,  2092. 
For  Editorial  Notes,  see  infra,  IV.  §  8. 

105.  Bonds  may  be  issued  by  a  city  to 
pay  for  property  lawfully  purchased,  in  the 
absence  of  any  statutory  or  constitutional 
prohil)ition,  although  they  could  not  law- 
fully be  issued  to  be  placed  in  the  market 
for  sale  to  obtain  money.  Rushville  Gas 
Co.  V.  Rushville,  121  Ind.'206,  22  N.  E.  72, 

6:  315 

106.  Bonds  given  by  the  board  of  edu- 
cation of  a  school  district  to  obtain  money 
which  was  not  borrowed  or  used  for  any 
purpose  for  which  the  board  was  author- 
ized by  its  charter  to  issue  bonds  are  void. 
Normal  School  Dist.  Bd.  of  Edu.  v.  Blodgett. 
155  111.  441,  40  N.  E.  1025.  3l:  70 

lOfia.  A  statute  authorizing  a  municipal 
corporation  to  subscribe  for  stock  in  a 
corporation  organized  to  construct  a  system 
of  waterworks  within  its  limits,  and  to 
issue  bonds  and  pay  therefor,  does  not  au- 
thorize it  to  issue  bonds  to  pay  for  stock 
Bubsf>rihed  to  a  corpoiation  organized  to 
furnish  both  water  and  light  to  the  town 
for  public  and  private  use.  Voss  v.  Water- 
loo Water  Co.  163  Ind.  69,  71  N.  E.  208, 

66:  95 
For  state  home  for  feeble  minded. 
Use  of  Public  Funds  for,  see  Public  Moneys, 
38,  39. 

107.  Implied  power  to  issue  bonds  is 
given  to  a  county  by  authority  to  make  a 
donation  "of  money  or  other  sofurities"  for 
the  benefit  of  a  state  home  for  the  feeble- 


minded.   Lund  V.  Chippewa  County,  93  Wis. 
640,  67  X.  W.  927,  34:  131 

For  seed  grain. 

Jurisdiction    of   Action   to   Enjoin   Issuance 
of,  see  Courts,  280. 

108.  The  issue  of  county  bonds  to  be  paid 
by  tax,  for  the  purpose  of  procuring  seed 
grain  for  needy  farmers,  is  for  a  public  pur- 
pose; and  a  statute  authorizing  counties  to 
take  such  action  is  not  unconstitutional. 
Such  tax  is  for  the  necessary  support  of  the 
poor.  State  ex  rel.  Goodwin  v.  Nelson 
County,  1  N.  D.  88,  45  N.  W.  33,  8:  283 
For  promotion  of  sugar  manufacture. 

Use  of  Public  Fimds  for,  see  Public  Moneys, 
13. 

109.  Township  bonds  issued  for  the  pro- 
motion of  the  construction  and  operation  of 
mills  and  factories  to  manufacture  Sorghum 
cane  into  sugar  or  syrup,  and  the  act  of 
March  1,  1889,  authorizing  their  issue,  are 
beyond  the  powers  of  the  legislature  and 
the  township,  and  are  void.  Dodge  v.  Mis- 
sion Twp.  46  C.  C.  A.  661,  107  Fed.  827, 

54:242 
Railroad  aid  bonds. 
Evidence   as   to    Inducements   Held   out   by 

•  Railroad  Company,  see  Evidence,  1619. 
Bonds  for  Street  Railway  Owned  by  City, 

see  Municipal  Corporations,  423. 
Tax  to  Aid  Railroad,  see  Taxes,  87,  88,  350. 
Subscriptions  for  Stock  in  Aid  of  Railroad, 

see  Railroads,  31-36;    Towns,  3,  19,  20, 

25. 
See  also  Towns,  1. 
For  Editorial  Notes,  see  infra,  IV.  §  8. 

110.  The  legislature  cannot  by  a  sweeping 
statute  give  till  counties  in  th°  state  the 
right  to  issue  railroad  aid  bonds  without 
regard  to  the  restrictions  imposed  by  the 
Constitution  thereon.  Wilkes  County  v. 
Call,  123  N.  C.  308,  41  S.  E.  481,  44:  2.52 

111.  Haywood  county,  Tennessee,  has  the 
power  to  subscribe  to  the  stock  of  a  rail- 
road company  and  issue  its  bonds  in  pay- 
ment thereof  upon  a  majority  vote  of  the 
electors,  under  the  act  of  1869-70  provid- 
ing that,  "if  a  majority  of  all  the  votes  cast 
shall  be  in  favor  of  the  issuance  of  such 
county  bonds,  then  it  shall  be  the  duty"  of 
the  county  court  of  Haywood  county  to  is- 
sue such  bonds,  although  Haywood  county 
is  not  expressly  empowered  to  issue  its 
bonds  in  payment  for  stock  subscribed,  and 
the  other  counties  mentioned  in  the  act  are 
empowered  so  to  do.  Nelson  v.  Havwood 
County.  87  Tenn.  781,  11  S.  W.  885,      4:  648 

112.  An  unconstitutional  attempt  to  tax 
the  citizens  of  a  county  for  the  benefit  of 
certain  residents  thereof  is  made  by  a 
statute  authorizing  the  issue  of  county 
bonds  for  the  benefit  of  an  insolvent  rail- 
road company  in  the  hands  of  a  receiver, 
with  a  provision  that  from  the  proceeds 
thereof  proper  and  legal  claims  held  by 
bona  fide  residents  of  the  county  should  be 
first  pnid.  Baltimore  &  E  S.  R.  Co.  v. 
Spring,  80  Md.  510.  31  Atl.  208.  27:72 

113.  A  village  will  be  denied  relief  in 
equity  arrainst  bonds  issued  under  an  act  of 
the  legislature  authorizing  bonds  for  public 
improvements   in    the    village   and    used   in 


BONDS,  III.  b,   3. 


293 


aid  of  a  railroad,  for  which  purpose  they 
could  not  be  legally  authorized,  where  the 
act  was  obtained  by  the  people  of  the  vil- 
lage by  falsely  representing  to  the  legisla- 
ture that  the  power  to  issue  bonds  was  de- 
sired for  the  purpose  of  making  public  im- 
provements in  the  village.  The  people  must 
be  left  to  such  defense  as  they  may  be 
found  entitled  to  in  a  court  of  law.  Cedar 
Springs  v.  Schlich,  81  Mich.  405,  45  N.  W. 
994,  8:  851 

Refunding  bonds. 
See  also  infra,  155. 

114.  Power  to  borrow  money  and  issue 
bonds  for  all  municipal  purposes  includes 
the  power  to  do  so  to  pay  or  refund  in- 
debtedness of  the  municipality.  Huron  v. 
Second  Ward  Sav.  Bank.  30  C.  C.  A.  38,  57 
U.  S.  App.  593,  86  Fed.  272,  49:  534 

115.  The  issuance  of  bonds  to  fund  the 
floating  indebtedness  of  a  city„  where  the 
electors  have  voted  therefor,  is  authorized 
by  S.  D.  Laws  1890,  chap.  37,  art.  5,  §  1, 
authorizing  a  city  council  to  borrow  money 
on  the  city's  credit  for  municipal  purposes 
and  issue  bonds  therefor  en  a  majority  vote 
of  the  electors.  National  Life  Ins.  Co.  v. 
Mead,  13  S.  D.  37,  82  N.  W.  78,        48:  785 

116.  Bonds  do  not  contravene  the  limi- 
tation of  municipal  indebtedness,  which  are 
issued  to  take  up  what  the  city  is  estopped 
to  deny  are  just  debts,  although  the  total 
indebtedness  exceeds  the  permitted  amount. 
Huron  v.  Second  Ward  Sav.  Bank.  30  C.  C. 
A.  38,  57  U.  S.  App.  593,  86  Fed.  272, 

49:  534 

117.  Bonds  issued  for  the  purpose  of  re- 
funding an  existing  indebtedness  are  not  to 
be  regarded  as  creating  any  new  or  ad- 
ditional indebtedness,  and  should  not  be 
considered  in  determining  whether  or  not  a 
city  had  reached  or  exceedefi  its  constitu- 
tional debt  limit.  National  Life  Ins.  Co.  v. 
Mead,  13  S.  D.  37,  82  N.  W.  78,  48:  785 

3.  Authorizing;  Elections. 

Validity   of   Contract   to   Procure    Election, 

see  Contracts,  493. 
Necossitv  of  Majority  Vote,  see  Elections, 

245,'  247. 
Canvass  of  Election  at  Adjourned  Meeting, 

see  Elections,  258. 
Injunction    against    T^nauthorfzed    Issuance, 

see  Injunction.  499. 
See  also  supra,  111,  115. 

118..  The  alternative  of  making  interest 
payable  annually  or  semiannually  need  not 
be  submitted  to  the  voters  on  an  election 
respecting  the  issue  of  municipal  bonds 
under  Cal.  act  March  19,  1889,  §  3,  requiring 
a  notice  of  the  election,  the  purpose  and 
character  of  the  bonds,  and  the  rate  of 
interest,  without  requiring  any  notice  as  to 
the  time  of  paying  interest.  Murphy  v. 
San  Luis  Obispo,  119  Cal.  624,  51  Pac.  1085, 

39:  444 
TAff'g  in  Banc,  48  Pac.  974.] 
Special  election. 

119.  A  special  election  upon  the  question 
of  issuing  municipal  bonds  cannot  be  held 
where  the  Constitution   provides   that   not 


more  than  one  election  shall  be  held  in  each 
year,  but  such  question  must  be  submitted 
at  a  general  election.  Belknap  v.  Louis- 
ville, 99  Ky.  474,  36  S.  W.  1118,  34:  256 
Notice  of  election. 

120.  A  general  notice  that  an  election  will 
be  held  in  a  certain  county  on  a  certain 
day  on  the  question  of  issuing  county  bonds 
is  sufficient  without  specially  naming  the 
places  at  which  the  election  will  be  held, 
when  the  general  election  law  requires 
notices  to  be  posted  in  the  several  precincts, 
naming  the  place  of  voting.  Packwood  v. 
Kittitas  County,  15  Wash.  88,  45  Pac.  640, 

33:  673 

121.  The  terms  and  conditions  of  mu- 
nicipal bonds,  which  the  statute  reo.uires  to 
be  stated  in  a  notice  of  election,  including 
those  as  to  rate  of  interest  and  the  tax  levy 
required  for  .payment  thereof,  must  sub- 
stantially follow  those  stated  in  such  r.otice. 
Skinner  v.  Santa  Rosa,  107  Cal.  464,  4C  Pac. 
742,  29:  512 
Who  entitled  to  vote. 

122.  A  charter  allowing  one  vote  to  the 
person  or  persons  owning  and  paying  taxes 
on  each  $100  worth  of  property  in  the  city, 
at  an  election  on  the  question  of  iseuing 
bonds,  and  that  no  one  shall  be  entitled  to 
vote  "unless  he  or  she  is  the  owner  of 
property"  within  the  city  to  the  amount  of 
$100  and  has  paid  taxes  thereon,  does  not 
authorize  the  exclusion  from  the  vote  of 
property  belonging  to  estates  or  corpora- 
tions, or  of  any  property  in  the  city,  no 
matter  who  mav  be  the  owner.  Wilson  v. 
Florence.  39  S.  C.  397,  17  S.  E.  835,  20:  720 
Two-thirds  vote. 

123.  An  ordinance  providing  for  the  sub- 
mission to  the  voters  of  the  question  wheth- 
er or  not  park  bonds  shall  be  issued,  at  a 
specified  general  election,  and  authorizing 
the  issuance  of  the  bonds  "in  the  event  that 
two  thirds  of  those  voting  at  said  election 
shall  'vote  in  favor,"  renuires  a  favorable 
vote  of  two  thirds  of  all  those  voting  at 
the  treneral  election.  Belknap  v.  Louisville, 
99  Ky.   474,   36   S.   W.   1118,  34:  256 

124.  Two  thirds  of'  the  voters  voting  at 
an  election  to  be  held  for  that  purpose, 
whose  assent  is  necessary  to  authorize  mu- 
nicipal indebtedness,  means  two  thirds  of 
all  the  votes  cast  for  any  piirpose  at  the 
election,  where  but  one  election  can  be  held 
during  the  year,  at  which  all  questions  to 
be  submitted  to  the  voters  must  be  decided. 

Id. 
Railroad-aid  bonds. 
See  also  infra,  139. 

125.  In  Nebraska,  at  least  fifty  free- 
holders, resident  in  the  township,  etc.,  must 
sign  a  petition  to  the  county  commissioners, 
to  give  the  latter  jurisdiction  to  call  an  elec- 
tion for  the  purpose  of  voting  aid  for  a  rail- 
road. Wullenwaber  v.  Dunigan,  30  Neb. 
877,  47  N.  W.  420,  13:  811 

126.  Railroad-aid  bonds  issiied  by  a 
county  are  not  defeated  by  a  consolidation 
of  the  railroad  with  another,  taking  place 
after  notice  of  the  election  at  which  the 
bonds  were  voted,  xmder  a  statute  passed 
and  taking  effect  before  the  election.     Nel- 


294 


BONDS,  III.  b,  4,  5. 


son  V.   Havwood  County,   87   Tenn.   781,   11 
S.   \V.  885.'  4:  648 

4.  Form;     Conditions    and    Regulations     of 
Issue. 

Law  Governing  as  to  Rate  of  Interest,  see 

Conflict  of  Laws,  46. 
Ex  Post  Facto  Law  as  to  Time  of  Payment, 

see  Constitutional  Law,  117. 
Seal  of  County  on.  see  Seal,  4. 
See  also  supra,  118,  121;  infra,  139,  140. 

127.  Where  a  statute  prescribes  the  form 
for  the  issuance  of  bonds  by  an  irrigation 
district,  the  court  should  confine  its  con- 
firmation of  an  order  of  the  board  of  super- 
visors for  the  issuance  of  bonds  to  the 
portion  thereof  which  designates  the  amount 
to  be  issued,  and  leave  the  form  to'  be  gov- 
erned by  the  statute.  Re  Madera  Irrig. 
Dist.  Bonds,  02  Cal.  296.  341.  28  Pac.  272. 

14:  755 
Issuing    statement   of   indebtedness,   valua- 
tion, etc. 

128.  t'nder  the  Pennsylvania  Constitu- 
tion and  the  act  of  April  20,  1874,  providing 
that. a  city  maj'  incu:  debt  not  exceeding  2 
per  cent  of  its  assessed  valuation,  but,  be- 
fore issuing  security  for  such  debt,  a  state- 
ment shall  be  filed  showing  the  assessed 
valuation  of  the  property,  and  the  amount 
of  annual  tax  levied  to  pay  the  debt,  in  ac- 
cordance with  law.  bonds  issued  without  the 
levy  of  an  annual  tax  and  without  the  filing 
of  a  statement  are  invalid;  but  the  debt 
may  be  a  valid  one.  and  if  so  the  bond- 
holders mav  recover  on  the  contract.  Rains- 
burg  v.  Fy'an,  127  Pa.  74,  17  Atl.  078.  4:  336 

129.  The  holder  of  municipal  bonds  is- 
sued without  the  filing,  by  the  principal  of- 
ficers of  the  municipality,  of  a  statement 
showing  the  indebtedness  of  the  district,  the 
amount  of  the  last  preceding  valuation,  the 
amount  of  debt  to  be  incurred,  etc..  'as  re- 
quired by  Pa.  act  April  20.  1874,  §  2.  will 
be  deemed  to  have  full  knowledge  of  all  that 
would  have  appeared  in  such  statement  had 
it  been  filed.  i  Id. 
Providing  means  for  paying. 

Obligation  to  put  Revenues  of  Gas  Works 
into  Sinking  Fund,  see  Constitutional 
Law.   1176. 

Investment  of  Taxes  for,  see  Taxes,  538. 

130.  The  failure  of  a  statute  authorizing 
4  county  to  improve  the  navigation  of  a 
river  and  to  issue  bonds  therefor,  to  provide 
any  meiins  for  paying  the  bonds  or  any 
interest  thereon,  does  not  make  the  statute 
or  the  bonds  invalid.  Stockton  v.  Powell, 
29  Fla.  1.  10  So.  688,  15:42 
Negotiable  bonds.  . 

131.  The  is,suance  of  negotiable  bonds  by 
a  township  is  authorized  by  Kan.  Laws, 
1870.  chap.  50.  authorizing  tovmships  to  re- 
fund their  indebtedness.  Rathbone  v.  Hop- 
per. 57  Kan.  240.  45  Pac.  610.  34:  674 
Payable  in  gold. 

For  Editorial  Notes,  see  infra,  TV.  §  8. 

132.  Power  to  issue  bonds  payable  in  gold 
roin  of  the  Ignited  States  of  the  present 
vcight  and  fineness  is  not  conferred  upon  a 


county  by  a  statute  authorizing  the  issue 
of  bonds  without  prescribing  the  kind  of 
money  in  which  they  may  be  paid.  Burnett 
V.  Maloney,  97  Tenn.  697,  37  S.  W.  689, 

34:  541 

133.  Municipal  bonds  cannot  be  made  pay- 
able "in  gold  coin  of  the  United  States  of 
America  of  the  present  standard  of  weight 
and  fineness,"  wher*^  a  statute  provides  that 
such  bonds  shall  hr.  payable  'in  gold  coin 
or  lawful  money  of  the  United  States." 
Skinner  v.  Santa  Rosa,  107  Cal.  464,  40  Pac. 
742,  29:  512 

134.  Bonds  may  be  made  payable  in  gold 
coin  only,  under  Cal.  act  March  19,  1889,  as 
amended  in  1893,  giving  power  to  issue  mu- 
nicipal bonds  "payable  in  gold  coin  or  law- 
ful money,"  as  this,  to  have  any  effect,  must 
be  construed — especially  in  view  of  other 
provisions  of  the  statute — to  give  the  city 
the  option  to  make  them  payable  in  gold 
coin  alone,  or  in  lawful  money.  Murphy  v. 
San  Luis  Obispo,  119  Cal.  624,  51  Pac.  1085, 

39:  444 
[Aflf'g  in  Banc,  48  Pac.  974.] 

135.  Municipal  bonds  issued  under  ex- 
press authority  of  the  incorporating  act  are 
not  void  because  by  ordinance  authorizing 
their  issue  they  are  made  payable  in  "gold 
coin  of  the  United  States  of  America  of  the 
present  standard  weight  and  fineness,"  that 
section  of  the  act  authorizing  their  issue 
not  providing  the  kind  of  currency  in  which 
thev  shall  be  payable.  Judson  v.  Besse- 
mer. 87  Ala.  240,  6  So.  267.  4:  742 

136.  Authority  to  make  county  bonds " 
payable  in  bold  coin  is  implied  in  legislative 
authority  to  issue  bonds,  especially  when 
such  authority  to  issue  bonds  is  given  with- 
out restriction  as  to  the  kind  of  money  in 
which  they  should  be  made  payable  after 
it  has  become  customary  to  make  such 
bonds  payable  in  gold  coin.  Packwood  v. 
Kittitas  County,  15  Wash.  88.  45  Pac.  640. 

33:  673 

5.  \\nio    Are,    and    Rights    of.    Bona    Fide 
Holders. 

Assumpsit  on  Railroad-Aid  Bonds,  see  As- 
sumpsit, 24. 
See  also  supra,  129;   infra,  169. 

137.  There  can  be  no  bona  fide  holder  of 
county  l)onds  issued  under  authority  of  an 
unconstitutional  statute.  Wilkes  County  v. 
Call,  123  N.  C.  308,  41  S.  E.  481,  44:'2,52 

138.  Even  bona  fide  purchasers  of  negotia- 
ble municipal  securities  are  charged  with 
knowledge  of  all  the  requirements  of  the 
statute  under  which  such  securities  were 
issued.  People's  Bank  v.  School  Dist.  No. 
52.  3  N.  D.  496,  57  N.  W.  787,  28:  642 

130.  Conditions  not  fixed  by  a  statute 
authorizing  the  issuance  of  county  bonds  in 
aid  of  railroads,  but  imposed  iipon  the  as- 
signee of  the  bonds  and  accepted  by  the 
railroad  company,  cannot  be  set  up  by  the 
county  to  defeat  the  bonds  in  the  hands  of 
a  bona  fide  purchaser  for  value,  as  such 
purchaser  is  not  bo'and  to  inquire  into  the 
performance  of  such  conditions.     Nelson  v. 


BONDS,  m.  b,   6. 


29S 


Haywood  County,  87   Tenn.   781.   11   S.  W. 
■885,  4:  648 

140.  Under  N.  Y.  act  May  12,  1871,  re- 
quiring that  not  more  than  10  per  cent  of 
town  bonds  shall  be  made  payable  in  any 
one  year,  a  purchaser  from  a  broker  em- 
ployed by  the  commissioners  has  a  riijht  to 
assume  that  the  bonds  were  made  payable 
as  the  statute  then  required,  and  he  was  not 
bound  to  examine  the  entire  series  to  see 
that  no  more  became  due  in  a  single  year 
than  the  statute  permitted ;  and  he  cannot 
be  affected  by  subsequent  acts  of  the  com- 
missioners in  issuing  other  bonds  in  a 
manner  not  in  accordance  with  law. 
Brownell  v.  Greenwich,  114  X.  Y.  518,  22  N. 
E.  24,  4:  685 

141.  A  judgment  of  a  county  court,  under 
the  Xew  York  bonding  act  of  1869.  author- 
izing issuance  of  railroad-aid  bonds  by  a 
town,  and  appointing  commissioners  to 
execute  and  issue  such  bonds,  makes  the  ap- 
pointees commissioners  de  jure,  empowered 
to  act  for  the  town ;  and  their  acts  within 
their  authority  are  the  acts  of  the  town. 
Hence  irregularities  in  the  manner  of  per- 
form.ance  cannot  affect  the  validity  of  the 
bonds  so  issued,  in  the  hands  of  an  innocent 
purchaser   for   value.  Id. 

142.  Although  purchasers  of  bonds  issued 
"by  a  city  are  bound  to  examine  the  city 
records  to  ascertain  the  authority  of  the 
city  treasurer  to  issue  the  bonds,  they  are 
not  required  to  look  further  for  an  unusual 
private  agreement  between  the  citj'  treasur- 
er and  certain  bankers  who  are  authorized 
to  sell  the  bonds.  Suffolk  Sav.  Bank  v. 
Boston,  149  Mass.  364,  21  X.  E.  665.   4:  516 

142a.  The  fact  that  a  private  agreement 
made  by  a  city  treasurer  with  certain  bank- 
ers for  a  sale  of  bonds  issued  by  the  city 
stipulates  that  a  certain  proportion  of  them 
shall  be  called  and  redeemed  yearly,  where- 
as the  bonds  themselves  contain  an  un- 
conditional promise  to  pay  in  thirty  years, 
is  recorded  with  the  comniittee  of  finance, 
is  not  constructive  notice  to  purchasers  of 
the  bonds.  Id. 

143.  Where  bonds  issued  by  a  city  con- 
tain an  unconditional  promise  to  pay  in 
thirty  years,  purchasers  in  good  faith,  with- 
out knowlodsre  of  a  collateral  agreement  be- 
tween the  city  treasurer  and  certain  bank- 
ers for  a  sale  of  the  bonds,  stipulating  that 
a  certain  proportion  of  them  shall  be  called 
and  redeemed  yearly,  are  not  bound  by 
siifh  collateral  agreement.  Id. 
Refunding  bonds. 

See  al.so  supra.  114-117. 

144.  That  the  indebtedness  of  a  city  was 
temporarily  increased  beyond  the  prescribed 
limit  by  the  sale  of  bonds  and  failure  im- 
mediately to  apply  the  proceeds  to  retire 
existing  indebtedness  will  not  defeat  them 
in  the  hands  of  a  bona  fide  purchaser,  where 
they  might  have  been  exchanged  directly 
for  the  existing  evidences  of  debt,  so  that 
there  would  have  been  no  unlawful  in- 
crease, which  method  duty  required  the  mu- 
nicipal authorities  to  pursue.  Huron  v. 
Second  Ward  Sav.  Bank.  30  C.  C.  A.  38.  57 
U.  S.  App.  593,  86  Fed.  272,  49:  534 


Rights   of   one   purchasing    from   bona   fide 
purchaser. 

145.  One  who  buys  the  bonds  of  a  city 
from  a  purchaser  without  notice  of  a  private 
agreement  between  the  city  treasurer  and 
certain  bankers  authorized  to  sell  the  bonds 
takes  the  unimpeachable  title  of  his  vendor, 
notwithstanding  he  himself  had  knowledge 
of  the  existence  of  such  contract,  and  can 
enforce  the  bonds  according  to  their  tenor. 
Suffolk  Sav.  Bank  v.  Boston,  149  Mass.  364, 
21  K  E.  665,  4:  516 

6.  Estoppel  as  to;  Ratification. 

146.  The  consideration  of  bonds  cannot 
be  denied,  as  against  a  bona  fide  purchaser, 
where  they  were  issued  to  pay  claims  which 
had  been  audited  by  a  committee,  acting  by 
authoritv  of  a  statute.  Flagg  v.  Barnes 
Countv  School  Dist.  Xo.  70,  4  X.  D.  30,  58 
X.  W.  499,  25:  363 

147.  The  decision  of  a  count}'  clerk, 
whose  duty  it  is  to  pass  upon  the  question 
of  title  to  a  school  site  for  which  bonds  are 
given,  before  registering  and  certifying  the 
bonds,  is  final  on  that  point,  as  against  the 
district,  in  favor  of  a  bona  fide  purchaser 
for  value.  Id. 

148.  A  municipal  township  is  estopped 
from  denying,  in  an  action  of  mandamus  to 
compel  the  issue  and  delivery  of  railroad- 
aid  bonds  voted  by  it,  that  the  petition  for 
the  election  was  signed  by  the  requisite 
number  of  taxpayers,  where  the  county 
board,  whose  duty  it  was  to  decide  the  ques- 
tion, has  determined  that  it  was  so  signed 
and  was  legal  in  all  other  respects,  and  the 
railroad  h^s  been  constructed  on  the  faith 
that  all  the  statutory  requirements  had 
been  complied  with  as  shown  by  the  journal 
of  the  board,  and  the  township  has  received 
and  retained  the  certificates  of  stock  issued 
to  it.  Hutchinson  &  S.  R.  Co.  v.  Fox,  48 
Kan.  70.  28  Pac.  1078,  15:  401 

149.  Where  a  county  issues  bonds  to  aid 
a  railroad,  under  authority  of  law,  and  de- 
livers them  to  the  railroad  company  in  aid 
of  which  they  are  issued,  and  pays  interest 
on  them  for  fifteen  years,  it  is  thereafter 
estopped  from  setting  up  an  irregularitj*  in 
the  election  at  which  it  was  decided  to  Is- 
sue the  bonds,  as  against  an  innocent  pur- 
chaser for  value.  Xelson  v.  Haywood 
Countv,  87   Tenn.   781,   11   S.  W.   885. 

4:648 

150.  Certificates  signed  by  the  mayor, 
auditor,  and  attorney  of  a  city,  stating 
what  steps  had  been  taken  preliminary  to 
the  issuing  of  certain  bonds  and  as  to  the 
financial  condition  of  the  city,  though  used 
by  the  person  who  negotiated  the  bonds, 
are  inadmissible  in  an  action  thereon  to 
create  an  estoppel  against  the  city's  assert- 
ing that  the  bonds  were  in  excess  of  the 
limit  of  the  city's  indebtedness,  when  the 
making  of  such  a  statement  was  not  within 
the  scope  of  the  official  duty  of  the  of- 
ficers making  it.  Xational  Life  Ins.  Co.  v. 
]\Iead,  13  S.  D.  37,  82  X.  W.  78,  48:  785 


296 


BONDS,  III.  b,  7. 


By  recitals. 

151.  Recitals  in  municipal  bonds,  to  estop 
the  corporation,  need  not  state  in  detail 
that  all  the  necessary  preliminary  steps 
have  been  taken,  but  it  is  sufficient  that 
they  declare  that  the  bonds  are  issued  in 
pursuance  of  a  specified  statute.  Coler  v. 
Dwiffht  School  Twp.  3  N.  D.  249,  55  N.  W. 
587,  28:  649 

152.  A  municipal  corporation  is  estopped 
from  controverting  statements  made  upon 
the  face  of  its  bonds  as  to  the  purpose  for 
which  they  were  issued,  so  as  to  invalidate 
them  in  the  hands  of  bona  fide  purchasers. 
Huron  v.  Second  Ward  Sav.  Bank.  30  C.  C. 
A.  38,  57  U.  S.  App.  593,  86  Fed.  272,  49:  534 

153.  Recitals  by  municipal  officers  who 
are  invested  with  authority  to  perform  a 
precedent  condition  to  the  issue  of  negoti- 
able bonds,  or  with  authority  to  determine 
when  that  condition  has  been  performed, 
that  tVie  bonds  have  been  issued  "in  pur- 
suance of,"  or  "in  conformity  with,"  or  "by 
virtue  of,"  or  "by  authority  of,"  the  statute, 
will  preclude  inquiry,  as  against  an  innocent 
purchaser  for  value,  as  to  whether  or  not 
the  precedent  conditions  had  been  performed 
before   the  bonds   were   issued.  Id. 

154.  Recitals  in  township  bonds  to  the 
efTect  that  they  are  issued  under  Iowa  Laws, 
1880.  chap.  51,  which  authorizes  their  issue 
to  pay  judgments,  are  not  insufficient  to 
constitute  the  basis  of  an  estoppel  by  reason 
of  the  fact  that  they  are  not  made  payable 
to  the  holder  of  any  judgments,  or  payable 
at  the  office  of  the  treasurer  of  the  town- 
ship, but  at  the  chief  commercial  city  of  the 
county,  since  these  facts  do  not  destroy  or 
weaken  the  effect  of  the  plain  declaration 
that  they  are  issued  in  pursuance  of  the 
statute.  Independent  School  Dist.  v.  Rew, 
49  C.  C.  A.  198.  Ill  Fed.  1,  55:  364 

155.  A  recital  or  certificate  in  bonds  as  to 
facts  which  the  person  making  it  had  au- 
thority to  determine  is  conclusive  in  case 
of  non -negotiable  bonds,  as  well  as  those 
which  are  negotiable.  Flagg  v.  Barnes 
Countv  School  Dist.  No.  70,  4  N.  D.  30.  58 
N.  W.'499,  25:  363 

156.  Recitals  in  municipal  bonds  may  as 
conclusively  estop  the  municipality  from  de- 
feating an  action  on  the  coupons  as  though 
they  were  contained  in  the  coupons  them- 
selves. Independent  School  Dist.  v.  Rew, 
49  C.  C.  A.  198,  111  Fed.  1,  55:  364 

157.  A  district  township  is  estopped,  as 
against  a  bona  fide  holder  of  its  bonds,  to 
denv  the  truth  of  recitals  contained  therein 
that  they  are  issued  under  authority  of 
Iowa  Laws  1880,  chap.  51,  to  pay  unsatis- 
fied iudtrments  rendered  against  the  town- 
sliij)  before  the  passage  of  the  act,  where 
the  ofTifcrs  issuing  the  bonds  are  expressly 
autliori?:ed  by  law  to  make  such  recitals  in 
the  bonds.  Id. 

l')8.  Alunicipal  corporations  are  estopped, 
as  against  bona  fide  holders  of  their  bonds, 
from  settin":  up  as  a  defense  thereto  that 
all  the  preliminary  steps  necessary  to  au- 
thorize their  issue  were  not  taken,  where 
the  officers  having  charge  of  such  issue  are 
specially    or    impliedly    authorized    to    de- 


termine the  performance  of  all  the  con- 
ditions precedent,  and  the  bonds  recite  such 
compliance.  Coler  v.  Dwight  School  Twp. 
3  N.  D.  249,  55  N.  W.  587,  28:  649 

159.  A  municipal  corporation  which  has 
certified  on  the  face  of  its  bonds  that  they 
were  issued  for  funding  floating  indebted- 
ness— a  lawful  purpose — cannot  repudiate 
them  after  they  have  reached  the  hands  of 
bona  fide  holders,  on  the  ground  that  the 
proceeds  were  actually  intended  and  used  to 
take  up  invalid  warrants.  Huron  v.  Second 
Ward  Sav.  Bank,  30  C.  C.  A.  38,  57  U.  S. 
App.  593,  86  Fed.  272,  49:  534 

160.  That  a  municipality  is  indebted  be- 
yond its  constitutional  limit  at  the  time  of 
the  issue  of  bonds  will  not  release  it  from 
liability  thereon,  where  they  contain  re- 
citals which,  if  tnie,  warranted  their  issue 
notwithstanding  the  excess  of  indebted- 
ness, since  the  municipality  is  estopped  as 
against  bona  fide  holders  from  denying  the 
truth  of  such  recitals.  Independent  School 
DisL  V.  Rew,  49  C.  C.  A.  198,  111  Fed.  1, 

55:  364 
161-162.  Recitals  in  a  county  bond  will 
not  estop  the  county  from  denying  its  va- 
lidity, if  they  point  to  an  unconstitutional 
statute  as  the  authority  under  which  the 
bond  was  issued.  Wilkes  County  v.  Call, 
123  N.   C.  308,  41   S.  E.  481,  44:  252 

163..  A  recital  in  city  bonds  as  to  the 
amount  of  indebtedness  of  the  city  does  not 
create  an  estoppel  against  showing  that  the 
indebtedness  was  greater,  when  the  statutes 
require  the  public  records  of  the  city  to 
show  the  amount  of  the  existing  indebted- 
ness, as  well  as  the  amount  of  the  taxable 
property.  National  Life  Ins.  Co.  v.  Alead, 
13  S.  D.  37,  82  N.  W.  78,  48:  785 

Estoppel  of  holder.. 

164.  The  holder  of  a  county  bond  which 
recites  that  it  was  issued  under  a  particular 
statute  which  is  adjudged  unconstitutional 
will  be  estopped  from  contending  that  it 
was  issued  under  another  statute.  Wilkes 
County  V.  Call,  123  N.  C.  308,  41  S.  E.  481, 

44:  252 
Ratification. 

165.  The  payment  of  interest  on  town 
bonds  which  were  void  because  issued  with- 
out authoritv  does  not  ratifv  them.  Union 
Bank  v.  Oxford  Comrs.  119  N.  C.  214.  25  S. 
E.  966.  34:  487 

7.  Payment;  Time  and  Place  of. 

Injunction  against  Payment,  see  Injunction, 

337. 
See  also  supra,  130,  165. 

166.  Where  an  act  to  provide  for  the 
payment  of  township  bonds  issued  in  aid 
of  a  railroad  provides  that  no  tax  shall  be 
levied  to  pay  the  interest  on  any  bond  until 
the  railroad  shall  be  completed  through  the 
township,  and  also  provides  that  the  act 
sh,all  not  be  construed  to  authorize  a  tax 
to  pay  any  interest  which  shall  have  ac- 
crued prior  to  the  completion  of  the  road, 
funds  in  the  hands  of  the  county  treasurer 
at  the  time  of  such  completion,  arising  from 


BONDS,  IV.  (Ed.  Notes.) 


297 


taxes  levied  before  that  time,  cannot  be  ap- 
plied in  payment  of  interest  subsequently 
jict-ruing;  and  an  application  for  a  man- 
daniui?  to  compel  such  payment  will  be  de- 
nied. State  ox  rel.  Dickinson  v.  Neely,  30  S. 
C.  587,  9  S.  E.  664,  3:  672 

167.  Municipal  bonds,  in  the  absence  of 
any  provision  as  to  the  place  of  payment, 
are  pavable  at  the  treasury  of  the  munici- 
pality." Friend  v.  Pittsburgh,  131  Pa.  305, 
18  Atl.  1060,  6:  636 

168.  The  inception  of  a  bond,  as  to  a 
purchaser,  being  its  delivery,  town  railroad- 
aid  bonds  issued  under  a  statute  authorizing 
them  to  be  made  "payable  at  the  expiration 
of  thirty  years  from  their  date"  are  not  in- 
valid because  made  payable  in  twenty  years, 
although  they  are  executed  and  dated  be- 
fore the  passage  of  a  law  allowing  them  to 
be  made  payable  in  a  less  time,  where  they 
are  not  delivered  to  the  purchaser  until  aft- 
er such  law  takes  effect.  Brownell  v.  Green- 
wich, 114  N.  Y..518,  22  N.  E.  24,  4:  685 

169.  Bonds  issued  under  a  statute  author- 
izing the  issue  of  municipal  bonds  payable 
in  not  less  than  ten  years  from  date  are 
void  even  in  the  hands  of  a  bona  fide  pur- 
chaser, where  by  their  terms  they  are  pay- 
able in  eleven  days  less  than  ten  years 
from  date.  People's  Bank  v.  School  Dist. 
No.  52,  3  N.  D.  496,  57  N.  W.  787.    28:  642 


IV.  Editorial  Notes. 

For  General  Principles  with  Respect  to  Prin- 
cipal and  Sureties,  see 
Principal  and  Surety,  III. 

For  Sale  of  Liquor,  see  Intoxicating  Li- 
quors, V.  §   3. 

a.  For  indemnity  and  security. 

§  I.  Generally. 

Contingency  of  claim  on,  as  affecting  lim- 
itation of  time  for  presen- 
tation against  estate. 
58:  86. 

Who  is  real  party  in  interest  by  whom  ac- 
tion must  be  brought. 
64:  599. 

Average  bond;  jurisdiction  of  admiralty  as 
to.     66:  235. 

§  2.  Execution, 

Validity  of  execution.     6:  278.* 

Signing  by  proxy.     22:  297. 

What  essential  to  bind  surety.  8:  486.* 

Execution  on  condition  that  others  shall 
sign.     45:  321. 

Guaranty  by  surety  of  other  signatures. 
49:  316. 

§  3.  Form  of  judgment  on  penal  bonds. 

Under  English  statutes  and  decisions.     62: 
427. 
The  necessity  for  4  &  5  Anne,  chap.  16. 

"62:  427. 
Annuity    and    instalment    bonds.      62: 

428. 
Exceptions  to  the  scope  of  8  &  9  Wm. 

ni.  62:  431. 
Form  of  judgment  under  the  statute  8 
&  9  Wm.  IIL  62:  431. 


Under  statutes  and  decisions  in  the  United 
States.     62:433. 
When  the  condition  is  for  the  payment 
of  a  sum  certain  at  a  day 
certain.    62 :  433. 
When  the  condition  is  for  the  perform- 
ance of  covenants  or  col- 
lateral     agreements.      62 : 
435. 
Annuity,     and     instalment    bonds. 

62:  439. 
Appeal  bonds.     62:  442. 
Attachment  bonds.    62:  442. 
Bail  bonds.     62:  443. 
Bastardy  bonds.     62:  444. 
Certiorari  bonds.     62:  446. 
Injunction  bonds.     62:  446. 
Indemnity  bonds.     62:  448. 
Official  bonds.     62:  448. 
Post-obit  bonds.    62:  453. 
Replevin  bonds.     62:  453. 
Title  bonds.    62:  454. 
Effect  of  improper  form.    62:  455. 
§  4.  Penalty  as  limit  of  liability  on  stat- 
utory bond. 
The  original  rule.    55:  381. 
Exception   when   equitable  relief  is  sought. 

55:  382. 
Exception  as  to  bonds  for  money  or  for  di- 
rect performance  by  sure- 
ties.    55:  383. 
The    modern    rule    allowing     interest.     55: 
384. 
Statement  of  and  reasons  for.     55:  384. 
Measure  of  recovery  under.     55:  385. 
Allowance  for  costs.     55:  386. 
Application  of  rules  to  particular  classes  of 
bonds.     55:  387. 
General  statement  as  to.    55:  387. 
Bonds  for  appeal  or  writ  of  error.     55: 

387. 
Certiorari  and  supersedeas  bonds.     55: 

388. 
Injunction  bonds.     55:  389. 
Replevin  bonds.    55:  390. 
'   Bail  bonds.    55:  391. 
Administration  bonds.     55:  392. 
Guardians'  bonds.    55:  392. 
Treasurers',  collectors',  and  paymasters' 

bonds.      55 :  393. 
Sheriffs'    and    constables'    bonds.      55: 

393. 
Bonds  of  other  public  oflScers  and  con- 
tractors      generally.      55: 
393. 
Indemnity  bonds.     55:  394. 
Bonds    in    bastardy    proceedings.     55: 

395. 
Stipulations  for  release    in    admiralty. 
.55:  395. 
§  5.  Of  person  acting  in  representative  ca- 
pacity. 
See  also  Executors  and  Administrators,  TV. 

§  14. 
Necessity  of  bond  by  guardian  to  make  his 

acts  valid.     33:  759. 
Sureties  on  bonds  of  assignees  for  creditors. 

11:852.* 
Bond  required  of  surviving  partner.    7 :  794.* 


-298 


BONDS,   IV.    (Ed.    Notes.)— BONUS  TAX. 


§  6.  In  legal  proceedings. 

See  also  Appeal  and  Error,  XI.  §  8. 

Bond  as  a  condition  of  removal    of    cause. 

5:  476.* 
Wlio  is  real  party  in  interest  by  whom  ac- 
tion  must   be  brought   on 
bond  given   in  judicial   or 
other       proceedings.       64: 
605. 
§  7.  OflScial  bonds. 
See  also  supra,  IV.  §§  3,  4. 
As  to  Liability  of  Officers,    Generally,    see 

Officers,  IV. 
Suits  on  official  bonds  for  trespasses  or  un- 
authorized acts    of    officer 
done     colore    officii.       21: 
738. 
Liability   of   sureties   where  the   officer 
has  no  writ,  or  acts  under 
a  void  writ.     21 :  738. 
Oppression  in  office.     21:  741. 
Fraud  of  officer.     21:  741. 
Liability  on  official  l)ond  for  loss  of  money 
by   theft   or   bank    failure. 
22:  449. 
Extension  of  liability  on  official  bond  while 
officer      is      holding      over 
after  expiration  of  regular 
term.       35:  88. 
^lerely  holding  beyond  term.     35:  88. 
Provision  for  liability  until  successor  is 

appointed.     35:  90. 
Re-election.     .35:  92. 
General  bond.     35:  93. 
Resignation.     35:  93. 
Liability   of   sureties    for   second   term;    de- 
fenses.     1:  118.* 
Liabilitv  on  official  bond  for  making  arrest. 

51 :  222. 
Estojipei  of  surety  to  deny  official  capacity 

of  principal.      1:  119.* 
Breach  of  ofBcial  bond ;  conversion  of  funds. 

1:  118.* 
Effect   against   surety  on    official    bond,    of 
judgment     against     officer. 
52:  10,5. 
Wlien   not   evidence.     52:  166. 

Judgment  recovered  in  action.     52: 

16G. 
Judgment    on    motion    for   rule    ab- 
solute      or       amercement. 
52:  169. 
When  prima  facie  evidence.     52:170. 
Judgment  recovered  in  action.     52: 

170. 
Judgment  on  motion  for  rule  abso- 
lute   or    amercement.     52: 
175. 
"When    conclusive   evidence.        52:  170. 
•hulgment   recovered  in   action.     52: 

176. 
-Tudgmcnt    on    motion    for   rule   ab- 
solute      or       amercement 
.52:  182. 
In    action    on    bond    of    deputy    officer 
.52:  184. 
When  not  evidence.     52:  184. 

Judgment       against      superior 

52:  184. 
JudgiiHMit         against       deputv, 
.52:  184. 


When  prima  facie  evidence.   52:  184 

When  conclusive  evidence.    52:  185. 
Judgment    in   favor   of   principal.      52: 

187. 
Executors,    administrators,    and    guar- 
dians.    52:  187. 

When  not  evidence.     52:  187. 

When    prima    facie    evidence.      52: 
187. 

When  conclusive  evidence.     52:  187. 

b.  Commercial;    government  and  municipal 
bonds. 

§  8.  Generally. 

Power  to  issue  in  aid  of  railroad  construc- 
tion.    5:  728.* 

Taxation  of  United  States  honds  as  part  of 
capital  stock  of  corpora- 
tion.    57 :  57 ;   58 :  568. 

Issue  of  bonds  in  payment  of  municipal 
waterworks.      61 :  49. 

Statutes  legalizing  or  validating  municipal 
bonds.     27 :  697. 

Proof  of,  under  bankruptcy  act.     54:  373. 

Necessity  of  notice  of  default  to  bind  guar- 
antor of  bond.     20:  258. 

Payable  in  gold  coin.     29:  522. 

Rights  as  to  sale  of,  when  pledged.  53: 
857. 

Implied  authority  of  pledgee  to  sell  bonds. 
43:  743. 

Right  of  bondholder  to  sue  for  enforcement 
of  trust  deed.     20:  535. 

Negotiability  of  bonds,  issued  by  railroad 
corporations.     1 :  299.* 

Defense  against  negotiable  bonds  trans- 
ferred after  maturity.  46: 
810. 

§  9.  Coupons. 

Character  of:  negotiability.     1:  299.* 

As  distinct  and  separate  instruments.  6: 
562.* 

Xegotiability  of  detached  coupons.     1:299.* 

Past -due  coupons  attached.     2:  353.* 

Mandatory  injunction  to  compel  reception 
of  coupons  for  taxes.  20: 
167. 


BONUS. 

For  Public  Enterprise,  see  Contracts,  493. 
For  Privilege  of  Subscribing  to  New  Stock, 

see  Assumpsit,  .36;  .Judgment,  290. 
Bonus    Stock,    see    Corporations,     362,     363, 

()32.   6.33:    Pleading,   233. 
To  Agent  as  I^sury,  see  Usurj^  22-30. 

Editorial  Notes. 

Bonus  stock.     38:  490. 

To  secure  location  of  county  seat,  as  brib- 
ery.    15:  501. 


BONUS  TAX. 


Effect  on  Corporate  Existence,  of  Action  to 
Recover,   see   Corporations,    11. 


BOOK  MAKING— BOUNDARIES. 
BOOK  MAKING.  BOTTOMRY. 


Enforcement   of  Contract   as   to,    see    Con- 

trncts.  617,  618. 
Special  Privileges  as  to,  see  Constitutional 

Law,  610,  611. 
As  Gaming,  see  Gaming,  13-16. 
Title  of  Statute  as  to,  see    Statutes,    230- 

232,  272. 
Special  Legislation  as  to,  see  Statutes,  300. 
See  also  Horse  Race. 


BOOKS. 

Of  Account,  see  Account  Books. 

Right  to  Inspect  Books  of  Corporation,  see 

Corporations,   V.   e,   3;    Municipal   Cor- 
porations, II.  i.  , 
Ckjnipelling  Production  of,  see  Dis'fcovery  and 

Inspection,  9,  10,  12. 
In  Schools,  see  Schools,  V. 

Editorial  Xotes. 

Common-law  rights  of  authors  and  others 
in  intellectual  productions. 
51 :  353. 

Eight  to  inspect  books  of  public  officers. 
27 :  83. 

Right  of  stockholder  to  inspect  books  of 
corporation.     45:  446. 

Right  of  taxpayer  to  inspect  books  of  mu- 
nicipality.    64:  418. 

Adoption  of  text-books  for  public  schools. 
36:  277. 


BOOM. 

Oral  Contract  as  to,  see  Contracts,  175. 
Estoppel  to  Complain  of,  see  Estoppel,  183. 
As  Nuisance,  see  Nuisances,  54,  95. 
Right  to  Fasten  to  Trees,  see  Waters,  148. 
See  also  Logs  and  Logging,  1,  5. 


BORN  ALIVE. 

When  Child  is,  see  Curtesy,  3. 


BOROUGH. 

See  ^Municipal  Corporation. 


BORROWING    MONEY. 

For  Bank,  see  Banks,  299,  300. 

Power  of  Loan  Association  as  to.  see  Build- 
ing and  Loan  Associations,  60-62. 

Power  of  Corporation  as  to,  see  Corpo- 
rations, 97. 

Power  of  Municipality  as  to,  see  Munici- 
pal Corporations,  II.  e. 


In  General,  see  Maritime  Liens.' 

Editorial  Notes. 

Jurisdiction  of  admiralty   in  case  of.     66: 
204,  233. 


BOULEVARD. 


Class  Legislation  as  to,  see  Constitutional 
Law,  322;   Statutes,  372. 

Due  Process  as  to,  see  Constitutional  Law, 
763,  764. 

Condemnation  for,  see  Eminent  Domain,  89, 
90. 

Restriction  of  Building  on,  see  Eminent  Do- 
main, 221. 

Forbidding  Erection  of  Billboard  on  Private 
Property  Facing,  see  Municipal  Cor- 
porations, 154. 

Assessment  for,  see  Public  Improvements, 
68. 

Title  of  Statute  as  to,  see  Statutes,  207, 
208. 

See  also  Highways,  49;  Municipal  Corpora- 
tions, 137-14'l. 

1.  An  ordinance  prohibiting  the  use  of  a 
pleasure  driveway  with  traffic  vehicles  is 
unreasonable  and  void,  where  the  enforce- 
ment of  it  is  made  to  depend  upon  the  dis- 
cretion of  the  village  trustees  by  requiring 
their  permission  for  such  use.  Cicero  Lum- 
ber Co.  V.  Cicero,  176  111.  9,  51  N.  E.  758, 

42:  696 

2.  Limitation  bj'  a  municipality,  under 
legislative  authority,  of  the  use  of  a  pub- 
lic highway  to  the  purposes  of  a  pleasure 
driveway  to  the  exclusion  of  general  traf- 
fic, does  not  violate  the  trust  under  w'hich 
the  municipality  holds  the  fee  of  its  streets. 

Id. 

3.  Power  to  change  the  use  of  a  street 
from  general  traffic  to  pleasure  by  general 
laws  is  implied  by  a  constitutional  prohibi- 
tion of  the  vacation  of  streets  by  local  or 
special  laws.  Id. 
Liability  for  condition  of. 

4.  A  boulevard  150  feet  wide,  of  which 
60  feet  is  graded,  while  the  remainder  is 
occupied  by  grass  plots  and  sidewalks,  and 
which  is  under  the  control  of  park  and 
boulevard  commissioners,  who  constitute  a 
city  agency,  is  a  street,  for  the  defective 
condition  of  a  sidewalk  on  which  the  mu- 
nicipality is  liable  as  much  as  if  the  boule- 
vard was  under  the  direct  control  of  the 
common  council.  Burridge  v.  Detroit.  117 
Mich.  557,  76  N.  W.  84,  42:  684 


BOUNDARIES. 


I. 
II. 


Of  State  or  Municipality. 
Of  Private  Property. 

a.  In  General;  Rules  for  Fixing. 

b.  By  Highway  or  Passageway. 

c.  By  Waters. 
III.  Editorial  Notes. 


800 


BOUNDARIES,  I.    II.    a. 


Of  Highway,  Conclusiveness  of  Judgment  as 
to,  see  Judgment,  264. 


I.  Of  State  or  Municipality. 

Of  State. 

Jurisdiction  as  Affected  by  Change  of,  see 

Courts,  64. 
Jurisdiction  of  Crimes  Committed  on  State 

Boundary,  see  Courts,  50-53. 
Jurisdiction    of    Actions    Arising    on    River 

Forming  Boundary  of,  see  Courts,  30- 

37. 
For   Purpose     of    Regulating    Fishing,   see 

Fisheries,  6. 
For  Editorial  Notes,  see  infra.  III.  §  1. 

1.  The  boundary  line  of  Wisconsin,  as 
to  its  outlying  rivers,  is  the  main  channels 
of  such  rivers.  Roberts  v,  Fullerton,  117 
Wis.  222,  93  N.  W.  nil,  65:  953 

2.  A  person  in  a  boat  on  the  Savannah 
river,  within  thirtj'  yards  of  the  Georgia 
side,  at  a  point  where  the  river  is  at  least 
175  yards  wide,  is  prima  facie  in  the  state 
of  Georgia.  Simpson  v.  State,  92  Ga.  41,  17 
S.  E.  984,  22:  248 

3.  A  body  of  water  having  well-defined 
shores  and  no  current,  lying  entirely  in  the 
state  of  Iowa  i/4  of  a  mile  from  the  main 
channel  of  the  Mississippi  river,  and  form- 
ing no  part  of  that  river  for  the  purposes 
of  navigation,  is  within  the  provisions  of 
Iowa  Acts  23  Gen.  Assem.  chap.  34,  against 
the  use  of  seines  in  the  waters  of  that  state, 
and  is  not  within  the  exception  of  boundary 
waters,  over  which  the  state  has  not  ex- 
clusive jurisdiction.  State  v.  Haug,  95 
Iowa,  413,  64  N.  W.   398,  29:  390 

4.  The  sovereignty  of  the  state  of  Wis- 
consin extends  to  the  middle  of  Lake  Michi- 
gan, and  its  laws,  so  far  as  they  do  not 
conflict  with  those  of  the  United  States 
regulating  commerce  and  navigation,  are 
operative  within  such  limits.  Bigelow  v. 
Nickcrson,  34  U.  S.  App.  261,  17  C.  C.  A. 
1,  70  Fed.  113,  30:  336 

5.  The  territorial  limit  of  sovereignty 
with  respect  to  the  high  seas,  to  the  3- mile 
zone,  should  not  be  applied  to  a  lake  which 
is  not  the  common  boundary  of  nations,  or 
open  by  nature  for  the  commerce  of  the 
world,  but  is  within  the  exclusive  jurisdic- 
tion of  each  nation.  Id. 

6.  The  space  covered  by  the  high  sea  up- 
on the  border  of  a  .state,  to  the  extent  of 
3  miles  from  the  shore,  is  within  the  opera- 
tion of  a  state  statute  creating  a  liability 
for  wrongfully  causing  the  death  of  another. 
Humboldt  Lumber  Mfg.  Asso.  v.  Christo- 
pherson,  19  C.  C.  A.  481,  44  U.  S.  App.  434, 
73  Fed.  239,  46:  264 
Of  municipality  or  township. 

Of  County,  Equity  Jurisdiction  as  to,  see 
Equity,  17. 

Changing  Boundary  of  County,  see  Coun- 
ties, 6-9. 

Of  Election  Districts,  see  Election  Dis- 
tricts. 

Of  Irrigating  Districts,  see  Irrigating  Dis- 
tricts, 4. 


Of   Government    Subdivisions,    see    Waters, 

469. 
See  also  Towns,  4. 
For  Editorial  Notes,  see  infra.  III.  §§  1,  2. 

7.  The  same  rule  governs  as  to  the  boun- 
daries on  streams  of  water  of  incorporated 
territories  and  of  lands  of  individuals. 
Ft.  Smith  &  V.  B.  Bridge  Co.  v.  Hawkins,  54 
Ark.  509,  16  S.  W.  565,  12:  487 

8.  The  boundary  of  an  incorporated  town 
or  city  on  &  navigable  river  in  Arkansas, 
like  that  of  an  individual  proprietor,  ex- 
tends only  to  high-water  mark,  although 
the  county  boundary  goes  to  the  middle  of 
the  channel.  Id. 

9.  A  scow  on  which  intoxicating  liquors 
are  sold,  anchored  in  water  about  5  feet 
deep  and  about  Yz  mile  from  shore,  is  not 
within  any  township  in  Michigan,  and  no 
prosecution  can  be  had  for  such  sales  under 
the  Michigan  statute,  which  makes  the 
shore  the  boundary  line  of  a  municipal  cor- 
poration, although  rights  of  landowners  for 
fishing  purposes  are  extended  by  the  stat-. 
utes  over  the  water  a  mile  from  shore. 
People  v.  Bouchard,  82  Mich.  156,  40  N.  W. 
232,  9:  106 

10.  The  jurisdiction  of  a  municipality 
bounded  by  a  navigable  river  does  not  ex- 
tend beyond  low-water  mark,  in  the  absence 
of  anything  in  the  charter  extending  the 
limit  of  its  jurisdiction  expressly  or  by  fair 
implication.  State  v.  Eason,  114  N.  C.  787, 
19  S.  E.  88,  23:  520 


n.  Of  Private  Property, 
a.  In  General;   Rules  for  Fixing. 

Adverse  Possession  Beyond,  see  Adverse 
Possession,  I.  b. 

Of  Coal  Mine,  see  Constitutional  Law,  341. 

Due  Process  in  Establishing,  see  Constitu- 
tional Law,  894. 

Oral  Agreement  as  to,  see  Contracts,  169- 
169b. 

Amount  Passing  Under  Deed,  see  Deeds,  63- 
65,  78. 

Equity  Jurisdiction  as  to,  see  Equity,  15, 
16. 

Burden  of  Proof  as  to,  see  Evidence,  664. 

Evidence  as  to,  see  Evidence,  1617,  1618, 
1658,  1662,  1936,  2159. 

Fences  on  Boundary  Line,  see  Fences,  II. 

Trees  on.  see  Cotenancy,  10;  Injunction, 
198,  199;  Trees,  1-3. ' 

Conclusiveness  of  Judgment  as  to,  see  Judg- 
ment, 198. 

Indication  of,  upon  Plat,  see  Plat. 

False  Representation  as  to,  see  Vendor  and 
Purchaser,  12. 

Mistake  as  to,  see  Vendor  and  Purchaser, 
67. 

For  Editorial  Notes,  see  infra.  III.  §§  3,  6. 

11.  The  rule  that  a  marked  line  controls 
a  call  in  a  deed  for  course  and  distance  is 
not  applicable  unless  the  marked  line  is  so 
connected  with  the  deed,  either  by  intrinsic 
or   extrinsic  evidence,  as  to   create  a  pre- 


BOUNDARIES,  II.  b,  c. 


801 


sumption  that  the  grantor  intended  to  adopt 
it.  Elliott  V.  Jefferson.  133  X.  C.  207,  45 
S.   E.   558,  64:  1.35 

12.  Where  a  grantor,  in  dividing  his  es- 
tate, makes  calls  different  from  those  which 
he  had  previously  marked  upon  the  ground, 
the  question  whether  those  in  the  deed,  or 
those  marked  on  the  ground,  will  control, 
depends  upon  his  intention.  Id. 

13.  Ascertained  objects,  natural  land- 
marks, and  reputed  boundaries,  control 
mere  course  and  distance  in  determining 
the  boundaries  of  land.  Teass  v.  St.  Al- 
bans, 38  W.  Va.  1,  17  S.  E.  400,  19:  802 

14.  A  general  description  in  a  deed  of  a 
bank  building  and  lot,  which  bounds  the 
property  conveyed  on  the  south  by  the 
land  of  a  third  person,  yields  to  a  report 
and  plan,  expressly  referred  to  in  the  deed 
"for  a  more  particular  description,"  which 
shows  that  the  south  line  of  the  bank  lot 
was  2  inches  south  of  the  south  face  of  the 
south  wall  of  the  bank  building,  notwith- 
standing that  such  report  and  plan  w'ere 
made  to  settle  a  dispute  between  the  grant- 
or and  such  third  person  as  to  their  bound- 
ary line,  and  that,  after  they  were  made, 
and  before  the  execution  of  the  conveyance 
in  question,  the  grantor  conveyed  to  him 
a  strip  8  inches  wide  to  the  center  of  the 
wall  of  the  bank  building.  Clement  v. 
National  Bank  of  Rutland,  61  Vt.  298,  17 
Atl.  717,  4:  425 

b.  By   Highway  or  Passageway. 

For  Editorial  Notes,  aee  infra.  III.  §  5. 

15.  The  title  and  legal  possession  of  the 
owner  or  occupant  of  lands  abutting  upon  a 
street  presumably  extend  to  the  middle  of 
the  street,  in  the  absence  of  anything  to 
show  the  contrary.  Friedman  v.  Snare  & 
T.  Co.  (N.  J.  Err.'  &  App.)  71  N.  J.  L.  605, 
61  Atl.  401,  70:  147 

16.  A  deed  which  merely  calls  for  a  high- 
way or  street  carries  title  to  the  center 
thereof.  Iron  Mountain  R.  Co.  v.  Bing- 
ham, 87  Tenn.  522,  11  S.  W.  705,  4:  *622 

17.  A  conveyance  of  lots  with  reference 
to,  or  as  bounded  by,  streets  and  alleys  as 
laid  off  on  a  certain  plat,  passes  the  title  1 
to  the  center  of  the  street  or  alley,  even  I 
if  never  brought  into  public  use,  provided 
the  seller's  title  extended  to  the  center 
thereof.  Jacob  v.  Woolfolk,  90  Ky.  426, 
14  S.  W.  415,  9:  551 

18.  A  conveyance  of  land  bounded  "along" 
a  certain  road  which  was  laid  out  entirely  j 
on   the   grantor's   land,   but   on   the   margin 
thereof,  carries  the  fee  in  the  whole  road-  j 
bed.     Haberman   v.   Baker,    128   N.   Y.   253,  i 
28  N.  E.  370,  13:  611  ! 

19.  The  owner  of  a  lot  abutting  upon  a  [ 
street  in  a  city  is  presumed  to  be  the  own-  i 
er  of  the  soil  to  the  center  of  the  street,  ■ 
subject  to  the  public  easement  of  passage  i 
and  the  rights  of  the  municipality  to  use  ', 
it  for  municipal  purposes  as  authorized  by  \ 
law.  Edmison  v.  Lowry,  3  S.  D.  77,  52  N.  : 
W.  583,  17:275 


20.  A  statutory  dedication  of  land  for  a 
street  by  a  plat  filed  under  Mo.  Rev.  Stat. 
1855,  p.  1536,  §  8,  declaring  that  such  plat 
"shall  be  a  sufficient  conveyance  to  vest 
the  fee  .  .  .  for  public  use  .  .  . 
and  for  no  other  use  or  purpose,"  gives  the 
public  only  an  easement,  leaving  the  fee 
to  vest  in  abutting  owners  respectively  to 
the  center  of  the  street  when  they  subse- 
quently acquire  title  to  lands  abutting 
thereon.  Thomas  v.  Hunt,  134  Mo.  392,  35 
S.   W.   581,  32:  857 

21.  The  rule  that  a  city  lot  bounded  by 
a  street  extends  to  the  middle  of  the  street 
may  be  applied  to  carry  title  to  minerals 
under  the  surface  of  the  street,  which  had 
been  expressly  reserved  on  a  prior  convey- 
ance of  the  surface  of  the  street.  Snoddy 
V.  Bolen,  122  Mo.  479,  25  S.  W.  932, 

24:  507 

22.  A  deed  which  calls  for  the  side  of  a 
street  does  not  carry  the  fee  to  the  center 
of  the  street,  but  excludes  the  fee  of  the 
street  altogether,  and  gives  the  grantee  a 
mere  easement  in  the  street  in  front  of  the 
premises.  Iron  Mountain  R.  Co.  v.  Bing- 
ham, 87  Tenn.  522,  11  S.  W.  705,  4:  622 

23.  A  conveyance  of  land  bounded  "by  a 
5-foot  passageway"  does  not  include  any 
part  of  the  fee  of  the  way,  when  it  grants 
the  use  of  the  passageway  in  terms  without 
mentioning  any  rights  reserved,  and  refers 
for  description  to  a  deed  conveying  no  part 
of  such  way,  and  to  a  plan  minutely  speci- 
f5'ing  measurements  and  contents  which  ex- 
clude the  way,  while  the  fee  to  one  side  of 
the  way  for  a  portion  of  its  length  remains 
in  those  who  laid  it  out,  and  the  parties 
by  practical  construction  of  their  rights  for 
a  long  time  treat  the  conveyance  as  exclud- 
ing the  way.  Crocker  v.  Cotting,  166  Mass. 
183,  44  N.  E.  214,  33:  246 

c.  By  Waters. 

Title  to  Land  under  Water  Passing  by  Deed 

of  Upland,  see  Deeds,  63. 
Boundary  as  Between  Individual  and  Public, 

see  Waters,  I.  c,  4. 
Boundary   under  Grant  by   Government  of 

Land  under  Water,  see  Waters,  I.  c,  4, 

d. 
For  Editorial  Notes,  see  infra,  III.  §  4. 

24-26.  A  purchaser  of  lots  according  to  a 
plat  showing  them  bounded  by  a  definite 
line  at  a  specified  distance  from  the  front 
boundary  acquires  no  riparian  rights  in 
lands  covered  by  tidewater,  at  the  rear  of 
such  lots.  Kenyon  v.  Knipe,  2  Wash.  394, 
27  Pac.  227,  13:  142 

River  or  creek. 

Boundary   as  between   Individual  and  Pub- 
lic, see  Waters,  74-80,  86-95. 
See  also  infra,  44,  45,  55. 
For  Editorial  Notes,  see  infra,  III.  §  4. 

27.  Describing  land  as  "lying  on  the  south 
side"  of  a  non-navigable  river  which  is  also 
named  as  a  boundary  does  not  prevent  the 
grant  from  extending  to  the  center  of  the 
river.  Hanlon  v.  Hobson,  24  Colo.  284,  51 
Pac.  433,  42:  502 


302 


BOUNDARIES,  II. 


2S.  The  bed  of  the  river  between  the  mid- 
dle of  the  -Jtreani  and  the  abutting  land  be- 
longs to  the  owner  thereof,  under  an  ex- 
ception in  a  deed  of  a  piece  of  land  fronting 
on  a  river  "12  rods  in  length  on  the  bank 
(if  >aid  river  and  extending  back  far  enough, 
same  width,  to  comprise  1  acre  of  land." 
.Smith  V.  Furbish,  68  X.  H.  123,  44  Atl. 
398,  47:  226 

29-31.  A  conveyance  of  lands  situated 
upon  a  navigable  stream,  the  description 
being  by  courses  and  'distances  from  a 
fixed  monument,  and  establishing  a  bound- 
ary line  coincident  with  the  line  of  naviga- 
tion, conveys  the  grantor's  title  as  far  as 
the  thread  of  the  stream.  Lake  Shore  & 
M.  S.  R.  Co.  V.  Piatt.  53  Ohio  St.  254,  41 
X.  E.  243,  29:  52 

32.  Running  the  lines  of  a  grant  from  ob- 
ject to  object  along  the  bank  of  a  stream, 
so  as  to  inclose  a  given  quantity  of  land, 
will  prevent  the  grantee's  title  from  rvm- 
ning  to  the  center  of  the  stream,  although 
the  words  '"down  the  creek"  are  used  in 
describing  the  direction  of  the  lines.  Stew- 
art V.  White.  128  Ala.  202,  30  So.  526. 

55:  211 

33.  A  deed  of  land  naming  a  creek  as 
one  boundary,  made  by  a  probate  judge  as 
trustee  of  town-site  lots  under  act  of  Con- 
gress, conveys  only  to  the  bank  of  the 
creek,  wliere  at  the  same  sale  the  bed  of 
the  creek,  which  had  been  separately  de- 
sc-ribed  in  the  notice  of  sale,  is  separately 
sold  and  is  conveyed  the  same  day  to  an- 
other purchaser.  Pearce  v.  Denver,  13  Colo. 
383.  22   Pac.   774.  6:  541 

34.  The  boundary  line  l>etween  owners  of 
land  on  opjwsite  sides  of  a  channel  not  more 
than  200  rods  wide  into  which  the  tide 
flows,  but  from  which  it  wholly  ebbs  and 
through  which  a  fresh-water  stream  flows, 
is  the  middle  of  the  tidal  channel  and  not 
all'ected  by  the  fresh-water  stream,  although 
the  Colonial  ordinance  of  1641-47,  which  ex- 
tends the  ownership  of  the  land  on  tidal 
waters  to  low  water  mark,  if  not  more  than 
100  rods,  furnishes  no  guide  for  the  division, 
since  the  land  to  be  divided  is  all  above  low- 
water  mark.  Tappan  v.  Boston  Water 
Power  Co.  157  Mass.  24.  31  N.  E.  703. 

16:  3.53 
Lake  or  pond. 
Relative     Rights     brtween     Individual     and 

i'ublic.  see  Waters,  81-85,  88. 
Relative  Rights  of  Riparian  Owners  in  Bed 

of.  see  Waters.   195-109. 
See    also    infra.    46-49,    56-59. 
For  Kiiitorial  Notes,  see  infra.  III.  §  4. 

35.  The  common-law  rule  governing  the 
construction  and  extent  of  grants  of  land 
bordeiing  and  bounded  on  non-navigable  wa- 
teis  is  applicable  alike  to  conveyances 
bounding  lands  on  fresh-water  rivers  and 
small  non -navigable  lakes  or  ponds.  Gouv- 
erneur  v.  National  Ice  Co.  134  X.  Y.  355, 
31    X.    E.   805.  IS:  095 

36.  Describing  one  boundary  of  a  convey- 
ance of   land   as  along   a  certain    pond    will 
carry  "title  to  the  center  of  the  pond,  unless  , 
a  contrary  intention  appears.  Id. 


37.  The  designation  of  the  courses  and  dis- 
tances of  the  shore  line,  in  a  deed  describ- 
ing one  boundary  of  the  land  conveyed  as 
"along"  a  certain  pond,  will  not  prevent 
the  passing  by  the  grant  ot  title  to  the 
center  of  the  pond.  Id. 

38.  The  raising  of  a  dam  pending  litiga- 
tion over  the  boundary  of  land  conveyed  as 
bounded  on  a  pond  will  not  give  the  own- 
er of  the  bed  of  the  pond  any  right  to  the 
additional  land  which  is  thus  covered  by 
the  water.  Boardman  v.  Scott,  102  Ga. 
404.  30  S.  E.  982,  51:  178 

39.  If  a  description  be  by  metes  and 
bounds,  no  reference  being  made  therein  to 
a  lake  by  which  the  land  lies,  then  only 
the  land  included  within  the  lines  as  fixed 
by  the  terms  used  by  the  parties  to  the  deed 
will  pass  to  the  grantee.  Lembeck  v.  Xve, 
47   Ohio  St.   336,  24  N.  E.  686,  8:  57» 

40.  WTiere  one  who  owns  a  tract  of  land 
that  surrounds  and  underlies  a  non -navi- 
gable lake,  the  length  of  which  is  distin- 
guishably  greater  than  its  breadth,  con- 
veys a  parcel  thereof  that  borders  on  the 
lake,  by  a  description  that  makes  the  lake 
one  of  its  boundaries,  the  presumption  is 
that  the  parties  do  not  intend  that  the 
grantor  should  retain  the  title  to  the  land 
between  the  edge  of  the  water  and  the 
center  of  the  lake;  and  the  title  of  the  pur- 
chaser, thersfore,  will  extend  to  the  center 
thereof.  Id. 
Meandered  waters. 

For  Editorial  Xotes,   see  infra.  III.   §   4. 

41-42.  The  meander  line  of  a  govern- 
ment sur\  ey  along  a  navigable  bay  is  not  to 
be  taken  as  the  shore  line  for  the  purpose  of 
determining  the  respective  rights  of  co- 
terminous riparian  owners  of  lands  front- 
ing on  the  bay.  Xorthern  Pine-Land  Co.  v. 
Bigelow,  84  Wis.  157,  54  X.  W.  496.    21 :  77^ 

43.  Land  outside  the  meander  line  of  a 
grant,  if  so  grossly  in  excess  of  the  land 
sold  as  to  make  it  apparent  that  there  is 
fraud  or  mistake  in  the  survey,  will  not  be 
included  in  the  grant,  but  the  meander  line 
wilj  be  the  boundarv.  Fuller  v.  Shedd,  161 
III.  462.  44  X.  E.  286,  33:  146 

44.  A  narrow  strip  of  land  between  a 
meander  line,  and  a  natural  boundary,  such 
as  a  stream  or  river,  if  it  is  much  smaller 
than  the  land  granted,  will  be  included  in 
the  grant,  and  the  center  of  the  stream 
or  river  will  be  the  boundary,  unless  a  dif- 
ferent intention  is  manifested  by  the  terms 
used.  Id. 

45.  Mentioning  a  me'ander  line  on  the 
bank  of  a  river  as  a  boundary  will  convey 
the  property  at  least  to  the  water  line, 
with  riparian  rights,  if  not  to  the  thread 
of  the  stream,  imless  a  contrary  intent 
clearlv  appears  from  the  deed  itself.  Sizor 
v.-  Logansport.  151  Ind.  626,  50  X.  E.  377, 

44:  814 

46.  Land  described  as  rimning  to  a  lake, 
thence  by  the  meandering  of  said  lake, 
which  is  an  unnavigable  body  of  water  from 
5  to  7  miles  in  length  and  from  80  to  100' 
rods  in  width,  does  not  include  any  of  the 
l>ed  of  the  lake.  Xoyes  v.  Collins,  92  Iowa, 
566,   61    X.   W.   250,  26:  60» 


EOUNDARIES,  III.  a. 


30^ 


47.  A  grant  of  land  bounded  on  a  mean- 
dered lake  conveys  onlj'  to  the  water's  edge, 
with  ri|)arian  rifrhts,  but  does  not  include 
land  under  the  water.  Fuller  v.  Shedd.  161 
111.  -^02.  -:4  X.    R  280.  33:  146 

47a.  I.,aives,  whether  large  or  small,  if 
they  are  of  such  size  that  in  making  the 
original  survey  they  are  meandered,  are 
subject  to  the  same  rule  as  to  the  bound- 
ary of  the  grant  to  the  riparian  owner. 
Fiiller  v.  Shedd,  161  111.  462,  44  N.  E.  286. 

33:  146 

48.  If  a  meandered  lake  is  non-navigable 
in  fact,  the  patentee  of  riparian  land  takes 
the  fee  to  the  center  of  the  lake.  Lamprev 
V.   State,   52   Minn.    181,   53   N.   W.    1139. 

18:  670 

49.  The  purchaser  from  the  government 
of  lands  bordering  on  non -navigable  in- 
land lakes,  divided  therefrom  in  ^he  survey 
by  a  meandering  line,  and  desi*nated  as 
a  fractional  quarter  or  lot,  giving  the  num- 
ber of  acres  ot  dry  land,  takes  all  the  land 
within  the  subdivision,  including  that  part 
beyond  the  meandering  line  and  covered  by 
the  vrater.  Stoner  v.  Rice,  121  Ind.  51.  22 
N.    E.    968,  6:  387 

50.  Although  a  meander  line  is  not.  as 
a  general  rule,  a  boundary  line,  yet  where 
the  boundaries  of  fractional  lots  appear  by 
the  government  plat  to  abut  on  a  body 
of  water  which  in  fact  never  existed  at 
substantiallj'  the  place  indicated  on  the 
plat,  the  supposed  meander  line  will,  if 
consistent  with  the  other  calls  and  distances 
indicated  on  the  plat,  mark  the  limits  of  the 
survey,  and  be  held  to  be  the  boundary 
line  of  the  land  it  delimits.  Security  Land 
&  E.  Co.  V.  Burns.  87  Miroi.  97,  91  N.  W.  .304, 

63:  157 
Low-water  mark. 

Relative    Rights   of  Individual    and   Public, 
see  Waters,  I.  c,  4,  b. 

51.  Title  to  low-water  mark  will  pass  by 
a  conveyance  of  land  lying  on  the  seashore, 
the  boundary  lines  of  which  are  descrilied 
as  "beginning  at  the  sea;"  thence  running 
around  the  parcel  to  "the  shore,"  thence  to 
the  "first  bounds  mentioned," — especially 
where  nothing  appears  to  show  any  reason 
or  motive  for  separating  the  beach  from  the 
upland  and  retaining  title  to  it.  Snow  v. 
Mt.  Desert  Island  Real  Estate  Co.  84  Me. 
14.  24  Atl.  429.  17:  280 

52.  Riparian  rights,  including  the  right 
to  the  soil  between  ordinary  high  and  low- 
water  mark,  as  incident  or  appurtenant  to 
the'  adjacent  land,  pass  in  Virginia  by  vir- 
tue of  the  operation  of  the  statutes  extend- 
ing the  riglits  of  individuals  to  low-water 
mark,  although  the  conveyance  is  in  terms 
made  to  "high -water  mark,"  imless  the  deed 
manifests  a  clear  intention  to  control  the 
operation  of  the  statutes.  Waverly  Water 
Front  I.  &  D.  Co.  v.  Wliite.  97  Va.  176,  33 
S.  K.  534,  45:  227 

53.  That  the  object  of  the  purchase  of  a 
strip  of  land  was  to  build  ice  houses  thereon 
cannot  affect  the  construction  of  the  deed 
so  as  to  ext^'nd  the  boundary  below  low- 
water  mark,  where  it  is  expressly  fixed  by 


the  language  of  the  deed.     Allen  v.  Wel>cr» 
80  Wis.   531.   50   X.   W.   514,  14:  361 

54.  The  reservation  of  the  right  of  flow- 
age  on  conveyance  of  land  bounded  by  low- 
water  mark  and  bordering  on  a  dam  does 
not  imply  any  extension  of  the  boundary 
below  such  mark,  where  there  is  a  margin 
between  high  and  low^-water  marks,  to 
which  the  right  of  flowage  may  apply.     Id. 

55.  Low-water  mark  will  bound  lands, 
where  the  description  in  the  deed  gives  a 
river  with  its  several  courses  as  a  bound- 
ary. Freeland  v.  Pennsylvania  R.  Co.  197 
Pa.   529,   47   Atl.   745,       '  58:  206 

56.  A  boundary  described  as  running  "to 
low- water  mark;  thence  northerly  along  the 
low -water  mark"  of  a  pond  or  river, — fixes 
that  mark  as  the  permanent  boundary,  and' 
does  not  convey  any  land  below  the  water 
mark.  Allen  V.  Weber.  80  Wis.  531,  50 
X".   \y.    514.  14:  361 

57.  If  the  call  in  the  description  of  land 
lying  by  an  inland  non-navigable  lake  be 
to  and  thence  along  the  margin  of  the  lake, 
the  title  of  the  purchaser  will  extend  to 
low-water  marw  only.  Lembeck  v.  Xve.  47 
Ohio  St.  .336,  24  X.  E.  686.  8:  578 

58.  A  description  of  land  as  running  "to 
the  shore"  of  a  lake,  and  thence  "with 
said  shore"  to  a  certain  point,  does  not  in 
elude  the  shore  or  extend  to  low- water 
mark  so  as  to  make  the  grantee  a  riparian 
proprietor  entitled  to  submerged  lands  in- 
cluded in  the  Florida  grant  of  1856.  which 
is  limited  to  owners  of  lands  "actually 
bounded  by.  and  extending  to.  low-water 
mark."  Axline  v.  Shaw.  35  Fla.  .305.  17  S  •. 
411,  .28:  391 

59.  A  deed  bounding  land  by  an  artificial 
pond  which  has  been  in  existence  more  than 
forty  years  and  has  become  a  permanent 
body  of  water,  although  its  waters  ebb  and 
flow  from  time  to  time  so  as  to  leave  a 
margin  of  land  between  high  and  low-water 
marks,  does  not  carry  title  to  the  thread  of 
the  stream  from  whose  waters  the  pond 
was  formed,  but  only  to  the  low-water 
mark  of  the  pond  at  the  date  of  the  execu- 
tion of  the  deed.  Boardman  v.  Scott,  102 
Ga.  404,  30  S.  E.  982,  51:  178. 


III.  Editorial  Notes. 

a.  Of  states  and  municipalities. 

§   I.  Upon  waters. 

Rivers  and  lakes  as  state  boundaries.     15: 
187. 

Delaware   river.      15:  187. 

Mississippi  river.     15:  187. 

Ohio  river.     15:  187. 

Missouri  river.     15:  188. 

Potomac  river.     15:  188. 

Chattahoochee  river.     15:  188. 

Hudson    river   and   neighboring   waters. 
15:  189. 

Fluctuation  of  river.     15:  189. 

Lake  Michigan.     15:189. 
Jurisdiction   over   boundary   river.     65:  953.. 


804 


BOUNTY;  BOWLING  ALLEY. 


Of  municipality  on  navigable  stream.  23: 
520. 

Of  municipal  corporations  on  tidal  waters. 
45:  243. 

§  2.  Change  of. 

Legislative  power  to  change  boundaries  of 
municipal  corporations.  1: 
757.* 

fvegislative  power  to  change  county  bound- 
aries.    1:  757.* 

b.  Of  private  property. 

§  3.  Generally. 

Right  to  inspect  public  records  as  to  bound- 
aries   and    titles.      27:  84. 

Property  rights  in  trees  on.     21:  729. 

Fraud  in  opinion  as  to.     35:  419. 

Rin-ht  to  rely  upon  representations  as  to. 
37:  610. 

Adverse  possession  in  case  of  ignorance  or 
mistake  as  to.    21:829. 

§  4.  On  waters. 

On  non-navigable  waters.     8:  579.* 
On  artificial  bodv  of  water.     51:  178. 
Canal.     51:  179. 
Pond.     51:  179. 

Permanent  artificial  pond.  51:  180. 
Of  grant  bordering  on  stream.  10:207.* 
Change  of,  bv  sudden  submergence  of  land. 

38:  850. 
Effect  of  bounding  grant   on   river  or  tide 
water.  42:  502. 
General  rule.     42:  502. 
No     strip     reserved     between     granted 
land   and   water.     42:  502. 
Title  will  go  to  middle  of  stream.    42: 

503. 
Particular  descriptions  which  have  been 
held  to  pass  title  to  thread 
of  stream.    42:  505. 
Presumption   that   title   goes   to   center 
may  be  rebutted.    42:  506. 
Particular   descriptions    which    will    re- 
but presumption.     42:  506. 
Generally.     42:  506. 
Boundary  on  margin.     42:  506. 
Boimdary  on  bank.     42:  507. 
Where  rights  in  river  are  in  third 

person.    42:  508. 
Conveyance   by   plat.     42:  509. 
Artificial    channel.     42:  509. 
Jlighway  on  bank.    42:  509. 
Stream   "between"   lands.     42:  510. 
Effect    of    call    for   quantity.      42: 

510. 
Meander  line.     42:  510. 
Between  nations.     42:  511. 
Some  exceptional  New  York  cases. 

42:511. 
Specific   descriptions.     42:  511. 
Question  for  jurv.     42:  511. 
Tidal  waters.'   42:  511. 
§  5.  On  highway. 
Conveyance  "along"  highway.     4:  624.* 

§  6.  Establishment  of;  description. 
K.sta])lished  by   agreement.     1:214.* 
Fixing  by  estoppel.     1:  522.* 
Effect    of    acquiescence    in    boundary    lines. 

4:  643. 
Map   as  alTecting  description.     13:  142.* 


BOUNTY. 


Necessity  of  Appropriation  for,  see  Appro- 
priations, 5. 

Sufficiency  of  Appropriation  for,  see  Ap- 
propriations, 11. 

For  Killing  Coyotes,  see  Claims,  24. 

Use  of  Public  Funds  for,  see  Public  Moneys, 
49,  50. 

Sugar  bounties. 

1.  The  bounty  on  the  manuf aciui  e  of 
beet  sugar,  given  by  Mich.  Pub.  Acts  1897, 
act  No.  48,  is  unconstitutional  as  a  taking 
of  the  property  of  the  taxpayers  for  a  use 
which  is  not  public;  and,  as  the  act  takes 
the  property  of  one  citizen  and  turns  it 
over  to  another,  or  compels  one  class  to 
donate  a  part  of  its  propertj^  to  another, 
it  is  void  irresj>ective  of  any  express  consti- 
tutional provisions.  Michigan  Sugar  Co.  v. 
Dix,  124  Mich.  674,  83  N.  W.  625,        56:  329 

2.  Recognition  by  Mich.  Pub.  Acts  1899, 
act  No.  263,  of  the  supposed  obligation  of 
the  state  to  pay  sugar  bounties  under  the 
unconstitutional  act  of  1897  cannot  give  any 
•validity  to  such  bounties.  Id. 

3.  Engaging  in  the  business  of  sugar 
manufacture  under  the  inducement  offered 
by  Mich.  Pub.  Acts  1897,  act  No.  48,  of- 
fering sugar  bounties,  and  incurring  large 
expense  in  reliance  on  such  bounties,  will 
not  give  one  a  valid  claim  against  the  state 
for  the  bounties  on  the  ground  that  after 
such  investments  the  bounties  cannot  be 
considered  a  gift,  but  that  the  state  is  in 
honor  bound  to  pay  them.  Id. 
To  soldiers. 

4.  Where  a  town  in  1861  contracted,  with- 
out authoritj',  to  pay  a  monthly  bounty  to 
such  of  its  citizens  as  should  be  mustered 
as  soldiers  into  the  service  of  the  United 
States,  and  the  legislatvire  subsequently 
passe<l  an  act  empowering  the  town  to  car- 
r}'  out  such  contract,  but  stating  that  the 
contract  should  terminate  in  ninety  days 
from  its  date,  no  recovery  can  be  had  for 
any  time  of  service  longer  than  ninety  days, 
.although  in  1863  the  legislature  passed  an 
act  ratifying  all  acts  of  towns  in  agreeing* 
to  pay  bounties  to  soldiers  furnished  by 
them  for  the  war  then  existing.  Marsh  v. 
Scituate,   153   Mass.   34,   26  N.   E.   412, 

10:202 
Editorial  Notes. 

Claims  against  state  for.     42:  63. 

Right    to   use   public   money   to   pay.      14: 

476. 
Decisions  under  various  state  statutes.     10: 

202.* 


BOWLING  ALLEY. 


Exemption  of,  see  Exemptions,  39. 
Editorial   Notes. 

Mimicipal  regulation  of,  as  a  nuisance.    39: 
524. 


BOXING  MATCH— BREACH  OF  PROMISE. 
BOXING  MATCH. 
See  Prize  Fighting. 


BOYCOTT. 

Refusal  of  Association  to  Deal  with  a  Per- 
son, see  Compulsory  Service,  2,  3. 

As  Conspiracy,  see  Conspiracy,  I.  c,  2. 

As  Contempt  of  Court,  see  Contempt,  55,  56. 

Jurisdictional  Amount  in  Injunction  against, 
see  Courts,  291. 

Estoppel  of  Boycotted  Member  of  Produce 
Exchange,   see  Estoppel,   138. 

Evidence  of,  see  Evidence,  1550. 

Injunction  against,  see  Injunction,  129-152. 

Presumption    as   to,    see    Trademark,    67. 

1.  Compelling  employees  to  withhold  their 
patronage  from  a  merchant  as  d  condition 
of  their  employment  may  be  an  actionable 
wrong  when  done  solely  from  motives  of 
malice.  Graham  v.  St.  Charles  Street  R.  Co. 
47  La.  Ann.  214,  16  So.  806,  27:  416 

2.  One  who  maliciously  induces  the  with- 
drawal of  patronage  from  a  person,  not  for 
his  own  benefit  in  the  exercise  of  the  right 
of  free  competition,  but  for  the  purpose 
of  injuring  and  destroying  such  person's 
business,  is  liable  to  an  action  for  damages; 
and  the  fact  that  there  was  no  contract  be- 
tween such  person  and  his  patrons  is  not 
material.  West  Virginia  Transp.  Co.  v. 
Standard  Oil  Co.  50  W.  Va.  611,  40  S.  E. 
591,  56:  804 

Editorial  Notes. 

As  conspiracy.     12:194.* 


BRAKEMAN. 


Liability  of,  for  Negligent  Homicide,  see 
Homicide,  1. 

Authority  to  Hire,  see  Master  and  Servant, 
4,  5. 

As  to  Relative  Duties  of  Brakeraan  and  Em- 
ployer, see  Master  and  Servant. 


BRAKES. 

Requirement  of  Air  Brakes  on  Street  Cars, 
see  Municipal  Corporations,  187-189. 


BRAND. 

False  Brand  on   Illuminating  Oil,   see   Oil, 
3-6. 


BREACH. 

Of    Contract,    see    Contracts,    IV.    e;    Evi- 
dence, XI.  o. 

L.R.A.  Die— 20. 


805 


Of  Covenant,  see  Covenant,  II. 
Of  Condition  in  Pardon,  see  Criminal  Law, 
278-281. 


BREACH  OF  PROMISE. 

I.  In  General. 

II.  Defenses;  What  will  Excuse  Breach. 
III.  Editorial  Notes. 

Survivability  of  Action  for,  see  Abatement 

and  Revival,  19. 
Prematurity  of  Action   for,  see   Action   or 

Suit,  26,  27. 
Prejudicial  Error  in  Admitting  Testimony 

in  Suit  for,  see  Appeal  and  Error,  899. 
Prejudicial     Error    in     Instruction     as     to 

Amount   of  Damages,   see   Appeal  and 

Error,  1041. 
Attachment  in  Suit  for,  see  Attachment,  8, 

and  also  infra.  III.  §  1. 
Agreement    to    Marry    after   Death   of   Di- 
vorced  Wife,    see   Contracts,    101,    and 

also  infra,  III.  §  I. 
Oral  Contract  to  Marry,  see  Contracts,  156, 

157. 
Exemplary  Damages  for,  see  Damages,  40, 

41. 
Measure  qf  Damages  for,  see  Damages,  255- 

257,  and  also  infra.  III.  §  1. 
Aggravation  of  Damages  for,  see  Damages, 

668. 
Evidence  in  Action  for,  see  Evidence,  943, 

2096. 
Libelous   Charge   that   Suit    is  Threatened, 

see  Libel  and  Slander,  27. 
Contradiction  of  Witness  on  Trial  for,  see 

Witnesses,  166. 


I.   In  General. 
For  Editorial  Notes,  see  infra,  m.  §  2. 

1.  An  agreement  to  marry  is  not  void 
merely  because  its  performance  is  intend- 
ed to  depend  on  the  happening  of  a  con^ 
tingencv.  Lewis  v.  Tapman,  90  Md.  294,  45 
Atl.  459,  47:  385 

2.  Upon  failure  of  one  of  the  parties  to  a 
marriage  contract  to  perform  his  agree- 
ment at  the  time  fixed  for  the  ceremony, 
no  reasonable  excuse  existing  for  such  fail- 
ure, the  other  party  may  rescind  the  con- 
tract, and  maintain  an  action  for  damages. 
Waneck  v.  Kratky,  69  Neb.  770,  96  N.  W. 
651,  66:  798 

3.  The  parties  to  a  marriage  contract  hav- 
ing expressly  agreeu  that  the  ceremony 
shall  be  celebrated  in  accordance  with  the 
rules  and  customs  of  a  particular  religion 
and  church,  such  rules  and  customs  become 
a  part  of  the  contract,  and  binding  upon 
the  parties.  Id. 
What  constitutes  a  breach. 

4.  A  breach  of  a  man's  promise  to  marry 
a  woman  after  his  former  wife,  from  whom 
he  is  divorced,  is  dead,  is  made  by  his  mar- 
rying another  woman  during  the  life  of  the 


806 


BREACH  OF  PROMISE.  II.  III. 


divorced  wife,  notwithstanding  the  fact  that 
there  is  a  possibility  that  upon  her  death 
he  may  be  able  and  ready  to  perform  his 
promise.  Brown  v.  Odill,  104  Tenn.  250,  56 
S.  W.  840,  52:  660 


II.  Defenses;  What  will  Excuse  Breach. 

For  Editorial  Notes,  see  infra,  III. 

5.  Kinship  of  the  parties  is  no  defense  to 
an  action  for  breach  of  promise  of  marriage, 
when  it  is  not  within  the  degrees  within 
which  marriage  is  made  unlawful  by  stat- 
ute. Albertz  v.  Albertz,  78  Wis.  72,  47  N. 
W.  95,  10:  584 

6.  The  abusive  conduct  of  plaintiff  toward 
the  mother  and  sister  of  the  defendant  in 
an  action  for  breach  of  promise  of-  mar- 
riage, and  her  lewd  and  immodest  conduct 
with  another  man,  are  matters  for  mitiga- 
tion of  damages  only.  Id. 

7.  Breach  of  a  contract  to  marry  a  wo- 
man is  not  justified  as  a  matter  of  law,  in 
the  absence  of  fraud,  by  the  fact  that  she 
has  negro  blood  in  her  veins,  or  has  mer- 
cenary motives,  or  is  wanting  in  affection, 
or  that  there  is  an  incompatibility  result- 
ing from  disparity  of  age,  difference  in 
character,  disposition,  and  other  causes. 
Van  Houten  v.  Morse,  162  Mass.  414,  38  N. 
E.  705,  26:  430 
Sickness  or  disease  of  party  breaking  prom- 
ise. 

For  Editorial  Notes,  see  infra.  III.  §  1. 

8.  To  excuse  the  breach  of  a  promise  of 
marriage  on  the  ground  of  illness,  defend- 
ant must  prove  that  he  has  such  a  disease 
or  complication  of  diseases  as  renders  the 
making  of  the  marriage  contract  and  the 
consummation  of  the  marriage  by  marital 
intercourse  impossible.  Smith  v.  Compton, 
(N.  J.  Err.  &  App.)  67  N.  J.  L.  548,  52  Atl. 
386,  58:  480 

9.  A  man  is  excused  from  breach  of  a 
contract  of  marriage  when,  after  it  was 
made,  he  has,  without  fault  on  his  part, 
developed  a  grave  malady  of  such  a  char- 
acter that  marriage  would  endanger  his 
life  or  health.  Sanders  v.  Coleman,  97  Va. 
690,   34   S.    E.   621,  47:  581 

10.  A  man  engaged  to  marry,  in  whom 
there  subsequently  appears,  without  any  in- 
tervening fault  on  his  part,  a  loathsome 
venereal  and  contagious  disease,  which  ren- 
ders it  unsafe  or  improper  for  him  to  marry, 
is  entitled  to  postpone  the  marriage  until  he 
is  cured  if  the  disease  is  of  a  temporary 
character,  and  to  refuse  to  carry  out  the 
contract  if  the  disease  is  permanent.  Tram- 
mell  V.  Vaughan,  158  Mo.  214,  59  S.  W.  79, 

51:  854 

11.  A  man  is  justified  in  breaking  an 
engagement  to  marry  if  he  is  afflicted  with 
an  incurable  disease,  such  as  syphilis,  which 
has  reappeared  without  any  new  fault  on 
his  part,  after  making  the  engagement, 
where  he  believed  himself  at  that  time  to  be 
entirely  cured  and  in  sound  health.  Shackle- 
ford  V.  Hamilton.  93  Ky.  80,  19  S.  W.  5, 

15:531 


Fraud  of  other  party. 

For  Editorial  Notes,  see  infra,  IIT.  §  3. 

12.  A  woman  is  bound  not  to  suppress  or 
conceal  any  material  facts  necessary  to 
the  correct  understanding  of  the  facts  which 
she  states  to  a  prospective  husband  concern- 
ing her  history  or  life,  parentage  or  fam- 
ily, or  her  former  or  present  position,  if 
without  inquiry  she  undertakes  to  state 
such  facts,  although  mere  silence  on  her 
part  might  not  constitute  fraud.  Van  Hou- 
ten v.  Morse,  162  Mass.  414,  38  N-  E.  705, 

26:  430 

13.  A  woman's  suppression  of  the  fact 
that  a  divorce  had  been  obtained  from  her 
on  account  of  her  vicious  disposition  and 
cruel  conduct,  when  stating  that  she  had 
obtained  a  divorce  from  her  husband  for  his 
cruelty,  constitutes  a  fraudulent  conceal- 
ment knd  misrepresentation  which  will  jus- 
tify a  breach  of  a  contract  to  marry  her. 

Id. 


in.   Editorial   Notes. 

§  I.  Generally. 

Validity  of  agreement  to  marry  on  death 
or  divorce  of  present  hus- 
band  or   wife.     52:  660. 

Disease  as  a  defense  for  breach  of  promise 
to  marry.     15:  531. 

Nature  of  action  for.     10:  584.* 

Abatement  of  suit  for.    3:  213.* 

Right  to  attachment  or  order  of  arrest  in 
breach  of  promise  case. 
59:  954. 

Constitutionality  of  imprisonment  for  debt 
arising  from  breach  of 
promise.     34:  639. 

Lewdness  of  woman,  known  at  time  of 
promise,  as  a  defense.  10: 
584.* 

Evidence  in  action.     10:584.* 

Rule  of  damages.     10:  585.* 

Seduction    as    an    element    of    damage. 
10:  585.* 

§  2.  What  constitutes. 

Refusal  or   failure  to   keep   agreement   for 
marriage     at     a     specified 
time    or    place    as    breach 
of  the  marriage  contract. 
66:  798. 
Anticipatory  refusal.     66:  798. 
Postponement  of  ceremony.     66:  798. 
Right  to  postpone.    66:  798. 
Effect  of  postponement.    66:  799. 
Failure  to  fulfil  agreement  at  appoint- 
ed time  or  place.     66:  799. 
Acts  subsequent  to  time  agreed   upon 
as     constituting     refusaL 
66:  801. 
When  cause  of  action  accrues.    66:  801. 

§   3.   Effect   of   fraudulent   concealment   to 

avoid  promise  of  marriage. 
Generally.     26:  430. 
Want  of  chastity.    26:  431. 
Physical  incapacity.    26:  431. 
Bad  character.    26:  431. 

Personal  life  and  traits  and  family  affairs. 
26:  432. 


BREACH  OF  THE  PEACE— BRIDGE  COMMITTEE. 


307 


Mitigation  of  damages.     26:  432. 
Necessity  of  alleging  fraud.    26:  432. 


BREACH  OF  THE  PEACE. 

Arrest  for,  Without  Warrant,  see  Arrest,  18, 
25-30. 

Carrying  Weapons  as,  see  Carrying  Weap- 
ons, 2. 

By  Assaulting  Judge,  see  Marshal. 

Being  intoxicated  and  yelling  on  the 
public  streets  of  a  village  in  such  a  man- 
ner as  to  disturb  the  good  order  and  tran- 
quillity is  a  breach  of  the  peace.  Peoole  v. 
Johnson,  86  Mich.  175,  48  N.  W.  870,  13:  163 

Editorial  Notes.      «, 

Defined;   examples  of.     13:  163.* 

Homicide  in  attempting  to  prevent.    67:  535. 

Right  to  arrest  for,  without  warrant.     8: 

530.* 
Liability   of   officer    for   making   an    arrest 

for,  without  warrant.    51: 

206. 


BREAD. 

Order  to  Fill  Wells  on  Premises  Where 
Made,  see  Bakery. 

Ordinance  as  to  Weight  of  Loaves,  see  Con- 
stitutional Law,  1073. 

Editorial  Notes. 

Legislative  power  to  fix  price  of.     33:  182 


BREAD    AND    WATER. 

Editorial  Notes. 

Keeping   prisoner  on,  as   cruel   or  unusual 
punishment.     35:  569. 


BREEDING 


Of  Bloodhounds,  Evidence  as  to,   see  Evi- 
dence, 2189. 


♦  •» 


BREWERS. 

Combination  of,  see  Conspiracy,  143. 

♦■•-♦ 

BREWING  COMPANY. 

As   Surety   on   Appeal   Bond,   see   Corpora- 
tions, 138. 


BRIBERY. 

Validity  of  Contract  to  Procure  Official  Ac- 
tion, see  Contracts,  III.  c,  4. 

In  Election  as  to  Coiuity  Seat,  see  Counties, 
21. 

Solicitation  of  Bribe,  see  Criminal  Law,  42, 
43. 

Acquittal  Procured  by,  as  a  Bar,  see  Crim- 
inal  Law,   147. 

Disfranchisement   for,  see   Elections,  274. 

What  Constitutes,  see  Elections,  277,  278. 

Evidence  of,  see  Evidence,  1676-1678,  1681, 
2139. 

Indictment  for,  see  Indictment,  etc.,  35,  42, 
66,  84,  133,  134. 

Removal  of  Member  of  Legislature  for,  see 
Legislature,  25. 

Removal  from  Office  for,  see  Officers,   135. 

Vote  Buyer's  Right  to  Reward,  see  Re- 
ward, 14. 

Of  Witness,  as  Admission  of  Wealaiess  in 
Case,  see  Evidence,  1906. 

Of  Witness,  Setting  aside  Relief  from 
Judgment  for,  see  Judgment,  429. 

1.  Any  agreement  by  which  a  person  un- 
dertook to  thwart  the  ends  of  justice  by  us- 
ing his  official  position  in  procuring  the  re- 
lease of  intoxicating  liquors  in  his  posses- 
sion and  under  his  control  as  an  officer  will 
subject  him  to  the  penalties  of  the  crime 
of  receiving  a  bribe.  State  v.  Potts,  78 
Iowa,  656,  43  N.  W.  534,  5:  814 

2.  The  question  of  the  legality  or  ille- 
gality of  the  proposed  ordinance  need  not  be 
considered  in  determining  the  guilt  of  a 
member  of  a  municipal  assembly  who  is  al- 
leged to  have  agreed  to  sell  his  vote  to 
secure  its  passage.  State  v.  Lehman,  182 
Mo.  424,  81  S.  W.  1118,  66:  490 

Editorial  Notes. 

See  also  Contracts,  Vlil.  §  32. 

By  gift  to  public;   for  street  improvements, 

14:  62. 
By  bonus  to  secure  location  of  county-seat. 

15:501. 
Of  voters  at  elections.     5:  217.* 
Of  public  officer.    5:  814.* 
Solicitation  to.     25:  439. 
Instigation  to.    25:  345. 


♦-•-♦ • 

BRICK  KILN. 

As  Nuisance,  see  Nuisances,  37. 

♦-•-♦ 

BRICK  YARD. 

What  Covered  by  Mortgage  in  Lease  of,  see 
Chattel   Mortgage,  25. 


BRIDGE    COMMITTEE. 
As  Office,  see  Officers,  29. 


308 


BRIDGE  COMPANY— BRIDGES,  I. 


BRIDGE  COMPANY. 


As  Common  Carrier,  see  Carriers,  9-13. 

Right  to  Compel  Business  with,  see  Com- 
merce, 50. 

Right  to  Exercise  Power  of  Eminent  Do- 
main in  Other  State,  see  Eminent  Do- 
main, 12-15. 

Taxation  of,  see  Taxes,  197. 


BRIDGES. 

I.  In  General. 
II.  Defects;  Injuries  on. 
III.  Toll  Bridges. 
rV.  Editorial  Notes. 

Admiralty  Jurisdiction  Over,  see  Admiral- 
ty, 3. 

Necessity  of  Appropriation  for,  see  Appro- 
priations, 3,  4. 

Riding  Bicycles  on,  see  Bicycles,  9-11;  Evi- 
dence, 204. 

Carrier's  Liability  for  Injury  to  Passenger 
by  Collapse  of,  see  Carriers,  236,  237. 

Excuse  for  Delay  in  Completing,  see  Con- 
tracts.  678. 

Liability  of  Contractor  for  Injury  by  De- 
lay in  Construction  of,  see  Highways, 
333. 

Damages  for  Erection  of,  in  Street,  see 
Damages,    505,    508,    510. 

Damages  for  Cost  of  Adjusting  to  Change 
in  Width  of  Street,  see  Damages,  527. 

Destruction  of,  by  Drainage  District,  see 
Drains  and  Sewers,  30. 

Cattle  Pass  under,  see  Easements,  87. 

Condemnation  for,  see  Eminent  Domain,  87, 
88. 

Construction  of  Pier  for,  as  a  Taking  of 
Property,  see  Eminent  Domain,  257. 

As  New  Servitude,  see  Eminent  Domain,  420, 
425. 

Presumption  as  to  Grant  from  Use  of,  see 
Evidence,  722. 

Over  Street  or  Alley,  see  Alleys,  3,  4; 
Courts,  274;  Eminent  Domain,  337;  Es- 
toppel, 198;   Highways,  54,  55,  149-151. 

Temporary  Closing  of  Street  while  Con- 
structing, see  Highways,  107. 

Liabilitv  for  Injurv  bv  Defective  Streets, 
see' Highways,  213,"^214,  222. 

Negligence  of  Gateman  at  Drawbridge,  see 
Highways,  239. 

Injunction  against  Building,  see  Injunction, 
335,  344. 

License  for,  over  Canal,  see  License,  21. 

Compelling  Repair  of,  see   Mandamus,   103. 

Injurv  to  Railroad  Employee  by,  see  Mas- 
ter and  Servant,  91-95,  154-156,  306, 
470. 

Injury  to  Employee  by  Collapse  of,  see 
.Master  and  Servant,  130. 

Necessity  of  Inspecting  Material  in,  see 
Master  and  Servant,  219. 

Assumption  of  Risk  as  to,  see  Master  and 
Servant,   328,   329. 

Contributory  Negligence  of  Employee  as  to, 
see  ^Master  and  Servant,  417^19. 


Liability  for  Negligence  of  Independent  Con- 
tractor as  to,  see  Master  and  Servant, 
700. 

Independent  Contractor's  Liability  for  In- 
juries from  Construction  of,  see  Mas- 
ter and  Servant,  723. 

Lien  on,  see  Mechanics'  Liens,  38,  67. 

Power  of  City  to  Erect,  see  Municipal  Cor- 
porations, 418. 

Liability  of  City  for  Injury  from  Failure 
to  Open  Draw,  see  Municipal  Corpora- 
tions, 477. 

Extending  Highway  over  Railroad  by,  see 
Railroads,  54. 

Over  Railroad,  see  Highways,  197;  Railroads, 
62-67. 

Invitation  to  Public  to  Use,  see  Railroads, 
110,  113. 

Title  of  Statute  as  to,  see   Statutes,  276. 

Special  Legislation  as  to,  see  Statutes,  365, 
366. 

Tax  on,  see  Taxes,  19,  197,  333,  361,  363, 
and  also  infra,  IV.  §  2. 

Direction  of  Veraict  in  Action  for  Injury 
in  Constructing,  see  Trial,  560. 

Obstruction  of  Navigation  by,  see  Com- 
merce, 6a,  6b;  Courts,  137;  Nuisances, 
98;  Waters,  156-158,  and  also  infra, 
IV.  §§  1,  4. 


I.   In   General. 

1.  A  statute  authorizing  a  city  to  build 
bridges  within  its  limits  does  not  neces- 
sarily revoke  authority  given  to  the  county 
by  general  statute,  without  restriction  as 
to  locality,  to  build  a  bridge  within  those 
limits.  As  there  may  be  bridges  serving 
only  a  city  purpose,  so  there  may  be 
others  demanded  in  the  same  territory  for 
county  purposes;  and  where  the  circum- 
stances create  this  demand,  and  the  bridge 
is  for  the  use  and  benefit  of  the  people 
of  the  county  at  large  or  of  some  consider- 
able portion  of  them,  and  intended  and 
needed  as  well  for  those  outside  as  for  those 
inside  the  city,  the  authority  of  the  county 
to  build  it  is  not  annulled  by  the  local  city 
statute.  Skinner  v.  Henderson,  26  Fla.  121, 
7  So.  464,  8:  55 
Management  and  control  of. 

2.  The  transfer  of  the  management  and 
control  of  public  bridges  and  ferries  may  be 
made  by  the  legislature  to  any  government 
agencj', — such  as  a  county  court,— although 
the  bridges  and  ferries  belong  to  a  city. 
Simon  v.  Northup,  27  Or.  487,  40  Pac.  560, 

30:  171 
Authorizing  removal  of. 

3.  The  legislature  may  authorize  a  drain- 
age district  to  remove  a  county  bridge 
across  a  stream  which  it  is  necessary  to 
widen  for  drainage  purposes,  and  require 
the  county  to  replace  it  at  its  own  expense. 
Heffner  v.  Cass  &  Morgan  Counties,  193  111. 
439,  62  N.  E.  201,  58:  353 
Approaches. 

Compensation    for    Property    Used    for,    see 
Eminent  Domain,  393. 


BRIDGES,  II. 


309 


As  New  Servitude,  see  Eminent  Domain, 
421-426. 

Establishment  of  Street  Grade  by  Provi- 
sion as  to,  see  Highways,  199. 

Lack  of  Barriers  to,  see  Highways,  267, 
268. 

Injunction  against  Unauthorized  Approach, 
see  Injunction,  55. 

Retrospective  Statute  as  to,  see  Statutes, 
544. 

Question  for  Jury  as  to,  see  Trial,  230. 

See   also   infra,  20,   32. 

For  Editorial  Notes,  see  infra,  IV.  §  1. 

4.  A  trestle  or  approach  to  a  railroad 
drawbridge  is  not  a  part  of  the  bridge  with- 
in the  meaning  of  a  statute  and  a  rule  of 
the  company  limiting  the  speed  of  trains 
"running  on  or  across  any  drawbridge." 
Savannah,  F.  &  W.  R.  Co.  v.  Daniels,  90  Ga, 
608,  17  S.  E.  647,  -,  20:  416 
As  nuisance. 

Conclusiveness  of  Decision  of  Congress  as 
to  Obstruction  of  Navigation  by,  see 
Courts,  137. 

For  Editorial  Notes,  see  infra,  IV.  §  4. 

5.  A  bridge  erected  under  lawful  author- 
ity cannot  be  regarded  as  a  nuisance,  so  as 
to  render  those  responsible  for  its  construc- 
tion liable  for  injuries  caused  to  adjoining 
land  as  trespassers  or  tort  feasors.  Salliotte 
v.  King  Bridge  Co.  58  C.  C.  A.  466,  122  Fed. 
378,  65:  620 
Cost  of  constructing  and  maintaining. 
Who    May    Complain    of    Invalid    Provision 

as  to,  see  Action  or  Suit,  62. 

Submitting  to  Arbitration,  Damages  from 
Failure  to  Complete  in  Time,  see  Arbi- 
tration, 4. 

Vested  Rights  as  to,  see  Constitutional  Law, 
1132. 

Due  Process  as  to,  see  Constitutional  Law, 
673. 

Town's  Vested  Right  to  Contribution  for, 
see  Constitutional  Law,  158. 

Letting  of  Contract  for  Construction  of,  see 
Contracts,  853. 

Contract  by  County  to  Build,  see  Counties, 
76. 

Cost  of  Replacing  County  Bridge,  see  Drains 
and  Sewers,  29. 

Special  Election  as  to  Aiding  in  Construc- 
tion,  see  Elections,   104. 

Estop)jel  to  Deny  Validity  of  Contract  to 
Maintain,  see  Estoppel,  18. 

Parties  to  Proceeding  to  Compel  Payment 
of,  see  Mandamus,  175. 

Legislative  Power  to  Require  City  to  Con- 
tract Debt  for,  see  Municipal  Corpora- 
tions, 322. 

Apportionment  Between  City  and  Railroad 
Company,  see  Municipal  Corporations, 
283. 

Special  Legislation  as  to  Bond  for,  see 
Statutes,  365,  366. 

Assessment  for,  see  Public  Improvements, 
69. 

Tax  for,  see  Counties,  61-64;  Municipal 
Corporations,  571;  Taxes,  85. 

6.  The  legislature  may  require  a  town 
to  contribute  a  portion  of  the  cost  of  main- 
taining a  highway  or  bridge  wholly  out- 
side   of   its    territorial    bounds,    but    which 


specially  benefits  the  town.  State  ex  rel. 
Bulkeley  v.  Williams,  68  Conn.  131,  35  Atl. 
24,  421,  48:  465 

7.  The  legislature  may  reconsider  an  ap- 
portionment of  the  expense  of  a  highway 
and  bridge  over  a  river  between  a  city  and 
certain  towns,  although  its  former  appor- 
tionment was  based  on  a  determination 
by    judicial    proceeding.  Id. 

8.  A  town  tax  for  moneys  to  be  paid  over 
to  the  treasurer  of  a  bridge  or  highway  dis- 
trict in  which  the  town  is  included,  for 
district  expenditures,  may  be  required  by 
the  legislature.  Id. 

9.  Failure  to  require  any  estimate  of  the 
amount  needed  for  the  ensuing  year  to  be 
submitted  to  a  town  by  a  bridge  district 
which  includes  it,  before  the  time  for  lay- 
ing a  tax,  does  not  make  void  a  statute 
charging  tiie  town  with  a  portion  of  the 
expenses  of  the  district,  on  the  ground  that 
it   does   not   provide   the   necessary   means. 

Id. 


n.  Defects;  Injuries  on. 

Evidence  as  to  Defects,  see  Evidence,  1943, 
1988,   1989. 

Lack   of  Barriers,   see   Highways,   267,  268. 

Proximate  Cause  of  Injury  by,  see  Proxi- 
mate Cause,  61,  109,  110. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

Liability  of  city,  county,  or  town. 
Question  for  Jury  as  to,  see  Trial,  344. 
See  also  Highways,  210. 
For  Editorial  Notes,  see  infra,  IV.  §   3. 

10.  A  city  owes  to  the  public  the  duty  of 
keeping  its  bridges  in  a  safe  condition  for 
public  use,  and  is  liable  for  special  inju- 
ries resulting  from  neglect  to  perform  this 
duty,  after  reasonable  notice  of  the  defect- 
ive condition  of  a  structure.  Buechner 
V.  New  Orleans,  112  La.  599,  36  So.  603, 

66:  334 

11.  A  county  is  not  liable  for  the  negli- 
gent exercise  of  the  duty  of  maintaining 
bridges,  imposed  on  it  by  the  state,  since 
it  derives  no  special  advantage  from  it  in 
its  corporate  capacity.  Markev  v.  Queens 
County,  154  N.  Y.  675,  49  N.  E."71,       39:  46 

12.  An  action  to  recover  damages  caused 
by  the  negligence  of  the  countj'  commis- 
sioners in  failing  to  keep  a  bridge  in  repair 
is  properly  brought  under  Ohio  Rev.  Stat. 
§  845,  as  amended  April  13,  1894  (91  Ohio 
Laws,  p.  142),  against  the  board  in  its  of- 
ficial capacity,  and  the  county  is  bound  for 
the  payment  of  the  judgment  recovered. 
Hardin  County  v.  Coffman,  60  Ohio  St.  527, 
54  N.  E.  1054,  48:  455 

13.  The  duty  of  commissioners  to  keep 
bridges  under  their  control  in  a  safe  con- 
dition extends  to  the  use  of  the  bridges 
for  all  usual  and  ordinary  modes  of  travel 
and  transportation  of  property  over  them, 
but  does  not  require  the  commissioners  to 
anticipate  an  unusual  and  extraordinary 
use,  subjecting  the  bridge  to  an  unusual 
and  extraordinary  burden  involving  pecu- 
liar danger.  Id. 


310 


BRIDGES,  II. 


14.  County  officers  are  not  negligent  in 
accepting  a  bridge  containing  defective  tim- 
bers which  an  expert  employed  by  thera  to 
examine  it  honestly  believes  sufficient.  Ver- 
million County  V.  Chipps,  131  Ind.  56,  29  N. 
E    1066,  16:  228 

15.  A  mistake  in  respect  to  the  safety  of 
a  bridge  made  by  a  competent  person  em- 
ployed by  the  proper  county  officers  to  ex- 
amine it  and  put  it  in  good  repair  will  not 
make  the  coimty  liable  if  it  remains  un- 
safe. Id. 

16.  A  county  is  not  liable  by  implication 
for  damages  caused  by  negligence  of  its 
officers  in  respect  to  keeping  bridges  in  re- 
pair, where  the  county  commissioners  have 
no  power  to  appropriate  county  funds  for 
that  purpose,  except  when  and  so  far  as  the 
road  district  is  unable  to  make  the  repairs, 
and  there  is  no  statute  giving  a  right  of  ac- 
tion against  the  county  for  its  negligence 
or  that  of  its  commissioners,  or  authorizing 
the  use  of  county  funds  to  pay  damages 
caused  thereby.  Jasper  County  v.  Allman, 
142  Ind.  573,  42  N.  E.  206,  39:  58 

17.  All  of  the  towns  whose  duty  it  is  to 
keep  a  bridge  in  repair  are  liable  as  for  an 
insufficiency  of  the  bridge,  for  an  injury 
occurring  at  a  space  between  a  point  des- 
ignated by  the  order  of  the  court  as  the 
end  of  the  bridge  and  the  end  as  built, 
which  space  was  filled  in  and  the  filling 
maintained  by  one  of  the  towns  at  its  own 
expense.  Tvler  v.  Williston,  62  Vt.  269, 
20  Atl.  304,  '  9:  338 

18.  Failure  of  township  officers  to  know 
of  a  defect  in  a  bridge  which  an  examina- 
tion by  one  intending  to  use  it  did  not  dis- 
close is  not  negligence.  Clulow  v.  McClel- 
land, 151  Pa.  583,  25  Atl.  147,  17:  650 

19.  A  statute  imposing  upon  the  county 
commissioners  the  duty  to  build  all  high- 
way bridges  of  a  certain  class  does  not  re- 
lieve the  town  in  which  one  of  them  is  lo- 
cated from  damages  for  injuries  resulting 
from  the  bridge  being  out  of  repair,  where 
another  statute  gives  cities  and  towns  ex- 
clusive control  over  the  bridges  within  their 
respective  limits.  Wabash  v.  Carver,  129 
Ind.  552,  29  N.  E.  25,  13:  851 

20.  Failure  to  repair  the  planking  on  the 
abutment  of  a  bridge  which  rests  upon  a 
dam,  in  consequence  of  which  water  washes 
away  part  of  the  approach  behind  the  abut- 
ment and  damages  a  mill,  gives  the  owner 
no  right  of  action  against  the  coimtv,  un- 
der X.  J.  act  1860  (N.  J.  Rev.  p.  86,"  §  9), 
which  makes  a  county  or  town  charged 
with  the  maintenance  of  a  bridge  liable  to 
anyone  who  is  injured  in  person  or  property 
by  reason  of  neglect  to  repair  it.  Such  lia- 
bility does  not  extend  beyond  the  duty  to 
keep  the  bridge  safe  for  use  as  a  bridge. 
Jernee  v.  ]Monmouth  Countv  Bd.  of  Chosen 
Freeholders  (N.  J.  Err.  &  App.)  52  N.  J.  L. 
553,  21  Atl.  291.  11:  416 
Liability  of  railroad  company. 

21.  For  injuries  caused  by  defects  in  a 
highway  bridge  which  a  railroad  company  is 
bound  to  maintain  over  its  tracks,  the  rail- 
road company  cannot  escape  liability  on  the 
ground  that  an  action  would  lie  for  the  in- 


jury against  the  township.    Gates  v.  Penn- 
sylvania R.  Co.  150  Pa.  50,  24  Atl.  638, 

16:  554 
Notice  of  defects. 

22.  Constructive  notice  which  will  ren- 
der a  city  liable  for  injury  caused  by  a  de- 
fect in  a  bridge  under  Mich.  Pub.  Acts 
1887,  p.  345,  §  2,  which  creates  a  right  of 
action  against  a  city  for  such  a  defect  only 
when  it  has  knowledge  or  notice  thereof, 
does  not  arise  from  the  mere  existence  of 
such  a  defect  for  two  or  three  davs  only. 
Thomas  v.  Flint,  123  Mich.  10,  81  N.'W.  936, 

47 :  499 

23.  Notice  to  a  road  overseer  of  the  de- 
fective condition  of  a  bridge  is  notice  to  a 
town  under  the  Michigan  statutes  defining 
the  duties  of  such  overseer.  Moore  v.  Ken- 
ockee  Twp.  75  Mich.  332.  42  X.  W.  944,  949, 

4:  555 

24.  Under  Vt.  Acts  1882,  No.  13,  §  4,  re- 
quiring notice  to  the  town  or  towns  in 
which  a  bridge  is  situated,  notice  of  defects 
to  the  towns  in  which  the  bridge  is  situated 
is  constructive  notice  to  all  of  the  towns 
by  which  it  is  required  to  be  maintained 
and  kept  in  repair.  Tyler  v.  Williston,  62 
Vt.  269,  20  Atl.  304,  9:  338 

25.  Although  township  officers  receive  no 
actual  notice  of  the  unsafety  of  a  bridge 
maintained  by  the  township,  yet  if,  by  the 
exercise  of  reasonable  care,  they  might  have 
known  of  such  condition,  or  if  they  had  ac- 
tual knowledge  through  any  other  means,  a 
statutory  requirement  as  to  notice  before 
bringing  suit  against  the  township  is  sat- 
isfied. Moore  v.  Kenockee  Twp.  75  Mich. 
332,  42  N.  W.  944,  949,  4:  555 
Contributory  negligence. 

Allegation  of  Freedom  from,   see  Pleading, 

356. 
Question  for  Jury  as  to,  see  Trial,  359,  360. 
See  also  Railroads,  §  262. 

26.  A  person  is  not  chargeable  with  con- 
tributory negligence  in  assuming  that  a 
bridge  is  in  safe  condition  for  travel  over  it 
in  my  usual  and  ordinary  wav.  Hardin 
Countv  V.  Coffman.  60  Ohio  St.  527,  54  N.  E. 
1054,  48:  455 

27.  One  who  subjects  a  bridge  to  an  un- 
usual and  extraordinary  load  or  strain  can- 
not recover  damages  for  an  injury  which 
he  receives  in  consequence.  Vermillion 
County  V.  Chipps,  131  Ind.  56,  29  N.  E.  1066, 

16:  228 

28.  A  person  who  chooses  to  subject  a 
bridge  to  some  extraordinary  burden  by 
placing  upon  it  some  unusual  weight,  and 
causing  it  to  be  moved  in  an  unusual  man- 
ner, takes  upon  himself  the  risk  of  any  in- 
jury thereby  sustained,  although  the  bridge 
was  defective  and  out  of  repair,  and  he  was 
not  aware  of  its  condition,  and  did  not  have 
good  reason  to  believe  that  it  was  insuf- 
ficient to  sustain  the  load.  Hardin  County 
V.  Coffman,  60  Ohio  St.  527,  54  N.  E.  1054, 

48:  455 

29.  Attempting  to  cross  a  bridge  on  a 
public  highway  which  is  in  constant  use, 
with  a  traction  steam  engine,  water  tank, 
and  threshing  machine,  is  not  per  se  negli- 


BRIDGES.  III.  IV. 


an 


gence  as  a  matter  of  law.  Wabash  v.  Car- 
ver, 129  Ind.  552,  29  N.  E.  25,  13:  851 
30.  A  traveler's  inability  to  read  the 
English  language  will  not  relieve  him  from 
the  charge  of  contributory  negligence  in 
attempting  to  cross  a  bridge  condemned  as 
unsafe,  on  which  warning  notices  are  con- 
spicuouslv  posted  in  that  language.  Weirs 
V.  Jones 'Ck)unty,  86  Iowa,  625,  53  N.  W. 
321,  17 :  445 


III.  Toll  Bridges. 

Traffic  of  Carrier  on,  see  Carriers,  9-13. 

Compliance  with  Contracts  to  Sell  Tickets 
for,  see  Contracts,  699. 

Amount  of  Recovery  for  Taking,  see  Dam- 
ages, 465. 

Condemnation  for,  see  Eminent  J)omain,  88. 

What  Constitutes  a  Taking  of,  s^e  Eminent 
Domain,  226,  227. 

Approach  for,  as  Additional  Servitude,  see 
Eminent  Domain,  425. 

Evidence  as  to  Value  of,  see  Evidence,  1842, 
1843. 

Injunction  against  Unlawful  Use  by  Street 
Railway,  see  Injunction,  407. 

Ordinance  as  to  Tickets,  see  Municipal  Cor- 
porations, 242. 

Duty  Toward  Person  Using,  see  Railroads, 
218. 

Contributory  Negligence  on,  see  Railroads, 
262. 

Taxation  of,  see  Taxes,  19. 

Operating  Railroad  Bridge  as,  see  Trial,  563. 

For  Editorial  Notes,  see  infra,  IV.  §  5. 

31.  The  right  to  exact  tolls  on  a  public 
bridge  does  not  carry  with  it  the  power  to 
prohibit  such  use  of  it  by  the  public  as  is 
reasonably  consistent  with  its  public  pur- 
poses. Pittsburgh  &  W.  E.  Pass.  R.  Co.  v. 
Point  Bridge  Co.  165  Pa.  37,  30  Atl.  511, 

26:  323 
Authority  to  construct. 
.  32.  The  legislature  may  lawfully  grant 
franchises  to  erect  a  toll  bridge  which  will 
include  the  right  to  provide  proper  and  suit- 
able approaches  and  to  lay  rails  thereon  for 
the  accommodation  of  railroad  traffic  for 
the  benefit  of  which  the  bridge  is  to  be 
erected.  Southern  I.  &  M.  Bridge  Co.  v. 
Stone,  174  Mo.  1,  73  S.  W.  453,  63:  301 

33.  Power  to  construct  railroad  toll 
bridges  is  not  destroyed  by  the  amendment 
of  a  statute  providing  for  the  formation  of 
corporations  to  construct  bridges  by  strik- 
ing out  a  provision  requiring  the  articles  of 
incorporation  to  state  whether  the  bridge 
is  to  be  for  railroad  or  other  purposes,  and 
remitting  incorporators  to  the  general  pro- 
visions of  the  statute  in  forming  their 
articles  of  incorporation  without  mention- 
ing railroad  purposes  as  one  for  which  a 
bridge  may  be  constructed.  Id. 
Right  of  electric  or  street  cars  to  use. 

See  also  infra,  36;   Street  Railways,  30. 

34.  An  electric  railway  company  has  the 
right  to  cross  a  public  toll  bridge  on  pay- 
ment of  adequate  toll,  where  the  statute 
gives  it  the  right  to  use  "any  street  or  high- 


way."   Pittsburgh  &  W.  E.  Pass.  R.  Co.  v. 
Point  Bridge  Co.  165  Pa.  37,  30  Atl.  511, 

26:  323 

35.  A  toll  bridge  is  dedicated  to  use  by 
street  cars  as  well  as  to  other  modes  of 
travel,  so  that  the  bridge  company  cannot 
prevent  such  use  although  it  was  not 
obliged  to  allow  it  originally,  where  the 
bridge  company  has  laid  the  street-car 
track  over  it,  and  permitted  and  invited  its 
use  by  such  cars  for  more  than  twenty-five 
years,  during  which  large  expenditures  of 
money  have  been  made  in  building  street 
railways.  Covington  &  C.  Bridge  Co.  v. 
South  Covington  &  C.  Street  R.  Co.  93  Ky. 
136,  19  S.  W.  403,  15:  828 
Amount  of  toll. 

For  Editorial  Notes,  see  infra,  IV.  §  5. 

36.  A  toll  of  2  cents  for  each  passenger 
crossing  a  bridge  in  a  street  car  is  not  un- 
reasonable or  an  unjust  discrimination  as 
compared  with  a  charge  of  20  cents  for  each 
two-horse  vehicle.  Covington  &  C.  Bridge 
Co.  V.  South  Covington  &  C.  Street  R.  Co. 
93  Ky.  136,  19  S.  W.  403,  15:  828 
Expiration  of  franchise. 

37.  Expiration  of  a  franchise  to  take 
tolls  for  the  use  of  a  bridge  vests  the  free 
use  of  the  bridge  in  the  people  as  a  public 
highway.  Brand  v.  Multnomah  County,  38 
Or.  79,  60  Pac.  390,  62  Pac.  209,  50:  289 


IV.  Editorial  Notes. 

§  I.  Generally. 

Obstruction  of  waters  of  stream  by.  59: 
862. 

Right  of  foreign  corporation  as  to.     24:313. 

Liability  of  county  for  injury  to  real  prop- 
erty from  construction 
and  operation  of  bridge. 
39:  65. 

Delegation  of  municipal  power  as  to.  20: 
726. 

Municipal  control  of,  as  a  nuisance.  29: 
681. 

Liability  of  street  railway  company  for  re- 
flooring.     46:  199. 

Approaches  of  a  bridge  as  part  of  it.  20: 
416. 

Presumption  as  to  statutory  authority  to 
commit  nuisance  by  erec- 
tion  of   bridge.     70:  584. 

§  2.  Taxation. 

Bridges  as  real  property  for  purposes  of. 
15:  298. 

Jurisdiction  for  purpose  of,  over  bridge 
spanning  boundary  of 
state  or  its  divisions. 
29:  69. 

Taxation  of  franchise  of  bridge  company 
whose  structure  spans  a 
navigable  stream  between 
two  states.     57:  56. 

§  3.  Duty  and  liability  with  respect  to. 

Negligence  in  respect  to;  liability  for  in- 
juries caused  by  defects 
of;  extraordinary  use. 
13:  851.* 

Notice  of  defect  to  fix  liability.    13:  851.»  ^ 


812 


BRIEFS;  BROKERS,  I 


Liability  for  injuries  from  fall  of.  13:  852.* 
Liability  of  municipal  corporation  for  inju- 
ries from  defective  bridges. 
5:  253;*    13:  851.* 
Liability   of   counties   for   torts   and   negli- 
gence as  to.     39:  33. 
Sufficiency  of  general   allegations  of  negli- 
gence as  to.     59:  252. 
§  4.  Over  navigable  waters. 
Power  of  Congress  to  legalize.    2 :  540.* 
Constructed  under  state  authority,    2:  541.* 
Railroad    bridges    over    navigable    streams. 

2:  542.* 
Jurisdiction  of  United  States  circuit  court 
with   respect    to.    2:  541.* 
Removal  of  suit  with  respect  to.     2:541.* 
Power  of  state  as  to.     12:  675.* 
As  nuisance;  when  constructed  under  legis- 
lative    authority.     59:  64. 
§  5.  Toll  bridges. 

Rights  and  duties  of  toll-bridge  proprietors. 
.58:  155. 
Creation  of  rights.     58:  155. 
Rights  of  abutting  owners.     58:  157. 
Place  and  method  of  construction.     58  f 
159. 
In  general.    58:  159. 
Imposition     of     additional     duties. 

58:  159. 
Interference  with  navigation.     58: 

160. 
Injury  to  rivals.    58:  161. 
Use  of  bridge.     58:  161. 
Duty  as  to  maintenance  of  bridge.     58: 

162. 
Tolls.     58:  163. 

Conditions   to  right  to  take.     58: 

163. 
Legislative  interference  with.     58: 

164. 
In  general.     58:  164. 
By    authorizing    competition.      58: 

164. 
Validity  of,  and  remedy  for,  com- 
petition.   58:  167. 
Remission,    evasion,    and    enforce- 
ment of.     58:  167. 
Remedy  for  injury  to  bridge.     58:  168. 
Taxation.     58:  168. 
Termination    of    franchise.      58:  169. 
Taking  of  toll  bridge  by  eminent  domain. 

13:  432> 
Necessity  of  franchise  for  taking  tolls  on. 

37:  715. 
Legislative  regulation  of  rates  of.    33:  181. 


BRIEFS. 


On  Appeal,  see  Appeal  and  Error,  IV.  r. 


BROKERS. 

I.  Stock  Brokers. 
II.  Real  Estate  Brokers. 

a.  Liability  of. 

b.  Compensation. 

1.  In  General. 

2.  Failure  to  Complete  Transac- 

tion. 
ni.  Editorial   Notes. 


As  Bona  Fide  Purchasers  of  Drafts  of  Bank 
from  its  President,  see  Bills  and  Notes, 
256. 

By  VlTiat  Law  Legality  of  Transaction  is 
Determined,  see  Conflict  of  Laws,  36. 

Statute  of  Frauds  as  to  Contract  with,  see 
Contracts,  130. 

Custom  of,  see  Custom,  19,  25;  Evidence, 
1089-1091,   1093. 

Interest  on  Advances  by,  see  Interest,  20. 

License  of,  see  License,  41,  71-74. 

Authority  to  Employ  Subagent,  see  Prin- 
cipal and  Agent,  29. 

Usury  in  Loans  by,  see  Usury,  28,  29. 

As  to  Factors,  see  Factors. 

Insurance  Broker,  see  Insurance,  I.  d. 


I.  Stock  Brokers. 

First  Raising  on  Appeal  •  Question  as  to 
Form  of  Action  against,  see  Appeal  and 
Error,  604. 

Right  to  Recover  Money  Paid  for  Princi- 
pal, see  Assumpsit,  8. 

Right  to  Commissions  on  Illegal  Contracts, 
see  Contracts,  625. 

Parol  Evidence  as  to  Custom  of,  see  Evi- 
dence, 1093. 

License  of,  see  License,  73,  74. 

Conversion  of  Stolen  Stock  by,  see  Trover, 
10. 

Liability  of  Broker  Selling  Stocks  for  Trus- 
tee, see  Trusts,  214. 

For  Editorial  Notes,  see  infra.  III.  §  1. 

1.  A  customer  is  not  precluded  from  re- 
covering upon  his  brokers'  agreement  that 
if  he  shall  be  dissatisfied  with  bonds  which 
they  shall  pruchase  for  him  they  will  take 
them  off  his  hands  at  what  they  cost  him, 
by  delay  in  returning  the  bonds  to  the 
brokers  and  demanding  the  price  paid,  where 
he  retains  them  upon  the  advice  of  one  of 
the  brokers  that  the  bonds  are  good,  and 
will  ultimately  advance  in  the  market. 
Johnston  v.  Trask,  116  N.  Y.  136,  22  N.  E. 
377,  5:  630 
Margins;  claims  to  stock. 
Speculations  in  Cotton  Futures  by  Savings 

Bank,  see  Banks,  .346-348. 

Validity  of  Contract,  for  Sales  on  Margin, 
see  Contracts,  III.  d. 

Jurisdiction  of  Suit  to  Recover  Margins, 
see  Equity,  23. 

Enjoining  Withdrawal  of  Margins,  see 
Equity,  74;  Injunction,  84. 

Presumption  as  to  Claim  on  Stock,  see 
Evidence,  709. 

Sufficiency  of  Proof  of  Intent  Not  to  Re- 
ceive Stock  Certificates,  see  Evi- 
dence, 2287. 

Agreement  by  Broker  to  Repurchase  Stock, 
see  Partnership,  24. 

Pledge  of  Stock  by,  see  Pledge  and  Collat- 
eral Security,  19. 

Setting  Off  Amount  Paid  to  Agent,  see 
Set-Off  and  Counterclaim,  4. 

2.  It  is  not  the  duty  of  a  broker  who  is 
entitled  to  have  a  margin  supplied  by  his 


BROKERS.  II.  a,  b,  1. 


819 


principal  on  the  sale  of  corn,  to  buy  in  the 
corn  within  a  reasonable  time  after  the 
principal's  refusal  to  supply  the  margin, 
where  such  refusal  is  not  absolute,  but  ac- 
companied by  a  promise  to  pay  the  losses 
when  differences  were  settled,  and  not  be- 
fore. Perin  v.  Parker,  126  111.  201,  18  N.  E. 
747,  2:  336 

3.  Under  the  rules  of  the  Board  of  Trade 
of  Chicago,  where  a  broker  sells  for  future 
delivery  under  authority  from  his  princi- 
pal, the  latter  is  under  an  implied  con- 
tract to  furnish  margins  when  demanded; 
and  if  he  fails  to  do  so  the  broker  is  au- 
thorized, without  waiting  for  the  maturity 
of  the  contract,  to  buy  produce  to  fill  his 
contracts.  Id. 

4.  The  relation  of  pledgeor  and  pledgee  is 
created  where  a  broker  purchases  and  carries 
stocks  upon  a  margin  by  advanoing  the  bal- 
ance of  the  purchase  price,  and  holding  the 
stock  as  security  therefor.  Skiff  v.  Stod- 
dard, 63  Conn.  198,  26  Atl.  874,  21 :  102 

5.  The  custom  of  brokers  in  a  certain 
market  to  repledge  stocks  which  they  are 
carrying  for  customers  on  a  margin  gives 
implied  authority  for  sucn  repledge  when 
they  are  employed  to  deal  in  that  market. 

Id. 

6.  The  insolvency  of  a  stockbroker  does 
not  deprive  a  customer  of  the  right  to  re- 
deem stocks  which  the  broker  is  carrying 
for  him  on  a  margin,  although  the  stock 
has  been  transferred  to  the  broker  on  the 
books  of  the  corporation,  provided  it  is 
capable  of  identification.  Id. 

7.  Stock  specifically  held  by  a  firm  of 
brokers  at  the  time  of  their  insolvency,  for 
the  firm  or  its  members,  and  not  carried  for 
its  customers,  can  be  claimed  by  the  as- 
signee for  creditors  as  against  customers 
for  whom  the  brokers  had  agreed  to  carry 
such  stocks.  Id. 

8.  A  block  of  stock  carried  by  a  firm  of 
brokers  at  the  time  of  their  insolvency,  for 
customers  on  margins,  but  which  is  insuf- 
ficient to  meet  all  the  demands  of  such  cus- 
tomers as  pleugeors  of  the  stock,  is  to  be 
divided  pro  rata  among  those  customers  for 
whom  the  firm  was  holden  to  carry  such 
stock.  Id. 

9.  The  burden  of  discharging  a  pledge  of 
stocks  belonging  to  different  persons,  made 
by  brokers  with  implied  authority  from 
their  customers,  from  whom  the  brokers 
themselves  hold  it  in  pledge  while  carrying 
it  on  margins,  is  to  be  averaged  among  all 
the  stocks  and  securities  included  in  such 
pledge  made  by  the  brokers.  Id. 

10.  The  particular  certificates  of  stock 
bought  by  a  firm  of  brokers  for  a  customer 
or  carried  for  him  in  fulfilment  of  his  order 
can  be  claimed  by  the  customer  in  case  of 
the  broker's  insolvency,  as  against  other 
customers  for  whom  no  particular  stoclc 
was  held,  but  for  all  of  whom  together, 
including  the  brokers  themselves,  a  clock 
of  stocks  was  held.  Id. 

11.  There  is  a  sufficient  identification  of 
the  shares  of  stock  claimed  by  customers  of 
an  insolvent  broker,  where  he  carried  for 
them   a   single  block  of  certain   stock,   and 


their  interests  are   satisfied  by   a  distribu- 
tion to  each  of  his  proper  number  of  shares. 

Id. 
Transfer  of  securities. 

12.  A  member  of  a  stock  exchange,  who 
witnesses  the  signature  of  an  olficer  of  a 
corporation  to  a  power  of  attorney  for 
the  transfer  of  securities  belonging  to  it, 
and  demands  their  transfer  thereon,  guar- 
antees that  the  oflScer  nas  authority  to 
execute  such  power,  under  a  rule  of  the  ex- 
change thai  an  indorsement  by  a  member 
of  the  exchange  on  a  certificate  is  consid- 
ered a  guaranty  of  the  correctness  of  the 
party  in  whose  name  the  stock  stands,  so 
that  he  will  be  liable  to  make  good  any  loss 
to  persons  actmg  upon  the  faith  of  the  sig- 
nature, who  are  injured  by  reason  of  want 
of  authority  on  the  part  of  the  officer  to 
sign  the  corporate  name.  Jennie  Clarkson 
Home  for  Children  v.  Missouri,  K.  &  T.  R. 
Co.  182  N.  Y.  47,  74  N.  E.  571,  70:  787 

13.  A  stockbroker  who  assists  the  treas- 
urer of  a  corporation  owning  registered 
bonds  to  secure  a  cancelation  of  the  regis- 
try and  dispose  of  the  bonds  in  the  market, 
taking  possession  of  them  and  acting  as 
broker  for  the  purpose  of  the  transfer, 
which  results  in  misappropriation  of  the 
proceeds,  is  liable  to  the  corporation  for 
their  value,  notwithstanding  he  was  de- 
ceived into  rendering  such  assistance  by  the 
treasurer's  forgeries  and  misrepresenta- 
tions. Id. 


n.  Real-Estate  Brokers, 
a.  Liability  of. 

Discrimination  in  License  of,  see  Constitu- 
tional Law,  464. 

Purchase  of  Land  for  Syndicate  by  Mem- 
bers thereof,  see  Syndicate,  5,  6. 

See  also  Principal  and  Agent,  82,  85,  86. 

14.  An  agent,  employed  to  exchange  real 
estate  for  other  specified  property  on  spec- 
ified prices  and  terms,  who  makes  such  ex- 
change without  disclosing  to  his  principal 
a  more  advantageous  exchange  which  he 
learns  can  be  made,  is  liable  to  the  princi- 
pal for  the  damages  resulting  thereby. 
Holmes  v.  Cathcart,  88  Minn.  213,  92  N.  W. 
956,  60:  734 

15.  An  agent,  employed  to  exchange  real 
estate,  who  is  told  by  his  principal  that  the 
amount  received  on  the  exchange  must  in- 
clude all  commissions  to  be  received  or 
claimed  by  such  agent,  is  not  liable  to 
such  principal  for  commissions  received 
from  the  other  party  on  making  the  ex- 
change on  the  terms  and  for  the  prices  fixed 
by  the  principal.  Id. 

b.  Compensation. 

1.  In  General. 

Proper  Remedy  for  Curing  Error  in  Decree 
as  to,  see  Appeal  and  Error,  516. 


314 


BROKERS,  IL  b,  1. 


Right  of  Unlicensed  Broker  to  Recover  for 

Services,  see  Contracts,  389-391. 
Evidence  in  Action  for,  see  Evidence,  1005. 
Allowance   of  Administrator    for,    see    Ex- 

eentors  and  Administrators,  186. 
Modifying  Decree  as  to,  see  Judgment,  78. 
Sufficiency  of  Answer  as  to,   see  Pleading, 

518. 
Liability  of  Trust  Estate  for  Compensation 

of,  see  Trusts,  201,  202. 
Question  for  Jury  as  to,  see  Trial,  245. 
See  also  supra,   15.  • 

For  Editorial  Notes,  see  infra.  III. 

16.  A  person  employing  brokers  to  sell 
land  is  not  liable  to  them  for  commissions, 
where  he  was  acting  for  an  undisclosed 
principal,  and  his  agency  was  disclosed 
after  the  brokers  had  brought  persons  to 
accept  an  option  merely,  but  before  a  bind- 
ing agreement  was  made.  Brackenridge  v. 
Claridge,  91  Tex.  527,  44  S.  W.  819,     43:  593 

17.  The  right  of  a  broker  to  commissions 
on  a  contract  the  signature  of  which  he 
has  procured  is  not  affected  by  the  fact 
that,  as  agent  for  the  buyer,  he  subse- 
quently seeks  to  procure  from  the  seller 
some  modification  of  the  terms  of  sale. 
I'airlv  v.  Wappoo  Mills,  44  S.  C.  227.  22  S. 
E.  108,  29:  215 
Acting  for  both  parties;    compensation  from 

both. 
Recovering  back  Payments  Made  to  Broker, 

see  Assumpsit,  22. 
Instructions  as  to,  see  Trial,  635. 
For  Editorial  Notes,  see  infra,  III.  8  2. 

18.  It  is  against  public  policy  for  one  to 
act  as  broker  for  both  parties,  unless  that 
fact  is  fully  communicated  to  them.  Can- 
nell  V.  Smith.  142  Pa.  25,  21  Atl.  793, 

12:  395 

19.  A  broker  employed  as  a  mere  middle- 
man, not  to  negotiate  a  sale  or  purchase, 
but  simply  to  bring  two  parties  together 
and  permit  them  to  make  their  own  bar- 
<;ain,  may  recover  an  agreed  compensation 
from  either  or  both,  though  neither  may 
know  that  compensation  is  expected  from 
the  other.  Friar  v.  Smith,  120  Mich.  411, 
79  N.  W.  633,  46:  229 

20.  A  broker  employed  to  sell  property 
<annot  be  at  the  same  time  the  agent  of 
the  purchaser  and  entitled  to  commissions 
from  both  parties,  unless  both  principals 
know  that  he  is  acting  in  such  dual  ca- 
pacity. Id. 

21.  A  real-estate  broker  cannot  be  re- 
garded as  a  middleman  entitled  to  a  com- 
mission from  both  sides,  if  he  has  contract- 
ed expressly  to  serve  the  buyer,  and 
throughout  the  negotiations  endeavors  to 
depress  the  price  and  arrange  conditions 
favorable  to  the  buver.  Leathers  v.  Can- 
field,  117  Mich.  277,  75  N.  W.  G12,  45:  33 
Sufficiency  of  broker's  services. 
Instructions  as  to,  see  Trial,  791. 
For-Ivlitorial  Xotes,  sec  infra.  HI.  §S  4,  5. 

22.  The  concealment  of  the  identity  of 
the  purchaser  from  his  principal  will  not 
preclude  a  broker  from  recovering  his  com- 
mission on  a  sale  of  land,  where  it  does 
not  appear  that  there  was  anything  in  the 


facts  or  circumstances  to  render  that  fact 
of  any  importance  to  the  seller.  Veasey  v. 
Carson,  177  Mass.  117,  58  N.  E.  177, 

53:  241 

23.  That  a  broker  was  not  given  the  ex- 
clusive sale  of  property,  and  that  the  own- 
er himself  made  the  sale,  will  not  defeat  the 
broker's  right  to  commissions  if  he  was  the 
procuring  cause  of  sale.  Hoadley  v.  Sav- 
ings Bank  of  Danbury,  71  Conn.  599,  42  Atl. 
667,  44:  321 

24.  A   broker   may   be    found    to    be    the 
i  procuring  cause   of   sale,   where  he   calls   a 

person's  attention  to  a  certain  piece  of  prop- 
erty, and  gives  him  information  as  to  how 
to  obtain  admission  thereto,  although  the 
owner,  without  the  broker's  knowledge,  sub- 
sequently takes  up  the  negotiation  and 
completes  the  sale.  Id. 

25.  That  one  who  is  led  to  begin  negotia- 
tion for  property  which  he  finally  purchases 
through  the  intervention  of  a  broker  had 
been  engaged  at  some  prior  time  in  a  boot- 
less negotiation  for  the  same  property,  and 
that  he  finally  completes  the  sale  through 
secret  negotiations  with  the  owner,  do  not 
deprive  the  broker  of  his  right  to  commis- 
sions. Id. 

26.  After  a  broker  haa  rendered  the  serv- 
ices which  make  him  the  procuring  cause  of 
sale  the  owner  cannot  escape  liability  by 
telling  him  that  no  commission  will  be  paid 
in  case  the  property  brings  only  a  certain 
price.  Id. 

27.  A  commission  for  procuring  a  person 
willing  to  take  a  lease  of  property  on  terms 
fixed  by  the  owner  cannot  be  recovered  on 
proof  of  procuring  an  offer  for  a  lease  the 
terms  of  which  were  subsequently  accepted 
and  the  contract  executed  through  another 
broker.  Cadigan  v.  Crabtree,  179  Mass.  474, 
61  N.  W.  37,  55:  77 

28.  A  commission  is  not  earned  by  a  real- 
estate  broker  from  the  owner  of  property, 
who  leases  it  to  one  who  has  been  ap- 
proached by  the  broker  to  take  the  lease 
on  the  terms  of  a  lease  which  had  been  pre- 
pared for  another  person,  on  substantially 
the  terms  of  such  lease,  where,  prior  to  the 
revocation  of  the  broker's  authority,  the 
intending  lessee  had  not  agreed  to  take  the 
lease  on  the  terms  proposed,  although  the 
broker  informed  the  owner  that  the  custo- 
mer "was  ready  to  hire"  on  the  terms  pro- 
posed. Id. 
Transaction   effected  without   broker's  aid. 

29.  In  case  of  an  agency  to  sell  real  estate 
on  commission,  the  exclusive  right  to  sell 
not  being  given,  the  owner  himself  has  still 
the  right  to  make  a  sale  independent  of  the 
agent,  and  in  such  case  will  not  be  liable 
to  the  agent  for  commissions  unless  he  sells 
to  a  purchaser  procured  by  the  agent.  Dole 
V.  Sherwood,  41  Minn.  535,  43  N.  W.  569, 

5:  720 

30.  An  exclusive  agency  to  sell  merely 
proliibits  the  appointment  of  another 
agency  for  the  sale  of  the  property,  but 
does  not  prevent  the  owner  himself  from 
making  a  sale.  Id. 
Amount   of  compensation. 

31.  Where  a  real-estate  broker  who  under- 


BROKERS,  II.  b,  2,  III. 


815 


takes  to  sell  a  house  and  lot  only  succeeds 
in  disposing  of  the  house  and  leasing  the 
lot  upon  a  reserved  ground  rent,  he  is  en- 
titled to  commissions  only  on  the  cash  ac- 
tually received,  and  not  on  the  value  of  the 
whole  property,  unless  the  owner  contracted 
to  pay  more,  either  expressly  or  by  impli- 
cation. Blake  v.  Stump,  73  Md.  160,  20 
Atl.    788,  10:  103 

2.  Failure  to  Ck)mplete  Transaction. 

32.  A  real-estate  broker  who  has  obtained 
an  optional  contract  sanctioned  by  his  em- 
ployer is  entitled  to  commissions  upon  the 
sura  paid  and  forfeited  by  the  purchase,  al- 
though the  purchase  is  not  completed.  Gil- 
der V.  Davis,  137  N.  Y.  504,  33  N.  E.  .5<)9, 

20:  398 

33.  A  letter  to  a  broker  by  Jiis  principal 
after  the  negotiation  of  a  contract  for  the 
sale  of  land  upon  which  a  deposit  has  been 
made,  to  be  forfeited  in  case  of  the  failure 
of  the  purchaser  to  complete  the  sale,  stat- 
ing the  understanding  of  the  writer  that 
there  shall  be  no  commission  paid  for  the 
sale  until  the  final  purchase  money  has  been 
paid,  as  otherwise  he  would  be  granting  an 
option  for  the  amount  of  such  deposit  less 
the  total  commission  on  the  sale;  and  a 
reply  by  such  broker  that  the  commission 
due  on  the  sale  shall  not  be  paid  until  the 
final  purchase  money  is  paid  in, — do  not 
defeat  the  right  of  the  broker  to  commis- 
sion on  the  deposit  forfeited  upon  the  pur- 
chaser's failure  to  complete  the  sale.  Id. 
Default  of  princiipal;  revocation  of  author- 
ity. 

For  Editorial  Notes,  see  infra,  III.  §  3. 

34.  A  broker  through  whose  efforts  a 
binding  contract  is  made  for  land  between 
his  principal  and  the  owner  of  the  land  has 
earned  his  commission,  notwithstanding 
the  fact  that  the  owner  cannot  make  a  good 
title  to  the  land  because  of  encumbrances 
not  known  to  the  broker,  as  the  remedy  of 
the  principal  is  against  the  other  party  to 
the  contract.  Roche  v.  Smith,  176'  Mass. 
595,  58  N.  E.   152,  51:  510 

35.  That  work  has  been  done  by  a  real- 
estate  broker  in  reliance  upon  a  promise  to 
pay  a  commission  in  case  a  purchaser  is 
found  for  certain  property  at  a  price  stated 
will  not  prevent  the "  revocation  of  his  au- 
thority, without  liability  for  any  compen- 
sation, at  any  time  before  a  purchaser  is 
found  at  the  price  named.  Cadigan  v.  Crab- 
tree,  179  Mass.  474,  61  N.  E.  37,  55:  77 

35a.  No  compensation  can  be  recovered 
by  a  broker  employed  to  procure  offers  for 
real  estate  upon  which  no  price  is  fixed,  in 
case  all  offers  are  rejected  and  his  authority 
is  revoked,  although  he  has  not  been  given 
a  reasonable  time  in  which  to  procure  an 
acceptable  offer.  Id. 

36.  No  rights  of  a  real  estate  broker 
who  has  been  employed  to  lease  property 
are  infringed  by  the  decision  of  the  prin- 
cipal not  to  lease  the  property,  and  the 
withdrawing  of  authority  from  the  broker 
after  he  has  produced  a  customer  who  is 
willing  to  negotiate  for  the  lease.     Cadigan 


V.  Crabtree,  186  Mass.  7,  70  N.  E.  1033, 

66:  982 

37.  A  real-estate  broker  is  not  entitled  to 
a  commission,  where,  after  having  produced 
a  customer  willing  to  negotiate  for  the 
lease  which  he  was  employed  to  effect,  the 
principal  in  good  faith  decides  not  to  lease, 
terminates  the  negotiation,  and  discharges 
the  broker,  although  the  principal  subse- 
quently again  decides  to  lease,  and  makes 
a  contract  with  the  customer  produced  by 
the  broker.  Id. 
Default  of  other  party. 

Burden  of  Proof  as  to,  see  Evidence,  651, 
652. 

38.  Where  a  real-estate  broker  contracts 
to  produce  a  purchaser  who  shall  actually 
buy  he  has  performed  his  contract  by  the 
production  of  one  financially  able,  with 
whom  the  owner  actually  makes  an  en- 
forceable contract  of  sale.  The  failure  to 
carry  out  that  contract,  even  if  the  default 
be  that  of  the  purchaser,  does  not  deprive 
the  broker  of  his  right  to  commissions. 
Lunney  v.  Healey,  56  Neb.  313,  76  N.  W. 
558,  44:  593 

39.  Refusal  to  comply  with  a  contract  to 
purchase  real  estate,  by  reason  of  which 
the  broker  who  negotiated  the  sale  is  de- 
prived of  his  commissions,  will  render  the 
intending  purchaser  liable  for  the  damages 
thereby  inflicted  on  the  broker,  although  he 
had  agreed  to  look  to  the  seller  for  his  com- 
missions. Livermore  v.  Crane,  26  Wash. 
529,  67  Pac.  221,  57:  401 

40.  A  commission  for  procuring  one  will- 
ing to  lend  a  certain  sum  on  mortgage  is 
not  earned  by  the  production  of  a  person 
willing  to  loan  that  amount,  but  who  in- 
sists that  the  contract  shall  provide  for 
payment  of  principal  and  interest  in  gold, 
because  of  which  the  offer  is  not  accepted. 
Caston  V.  Quimby,  178  Mass.  153,  59  N.  E. 
653,  52:  785 


III.  Editorial  Notes. 

§  I.  Generally. 

Character  of  agency.     4:  392.* 

Jurisdiction  of  admiralty  over  contracts  of 
ship  brokers.     66:  236. 

Implied  warranty  of  genuineness  upon  sale 
of  negotiable  paper  by. 
36:  95. 

Employed  by  executor  or  administrator  to 
sell  property  of  estate; 
liability  of  estate  for  com- 
missions of.     64:  554. 

Statement  of  account  by.    27:  821. 

Right  to  recover  for  services  rendered  or 
losses  incurred  in  dealings 
in  futures  or  options.  1: 
141.* 

Effect  of  failure  to  procure  license  on  va- 
lidity of  contract.     16:424. 

Duty  to  disclose  to  principal  the  identity 
of  a  purchaser.    53:  241. 

Employment  of  real  estate  broker.  10: 
103.' 

Exclusive  agency  to  sell.     10:  103." 


316 


BROKERS,  III.  (Ed.  Notes.) 


Right  of  commissions  on  exchange  of  prop- 
erty.    10:  103.* 
Conditions  of  right   to   commissions  gener- 
erally.     10:  103.* 
Effect    of    procuring    contract    of    sale. 
10:  105.* 
Set-off  in  case  of  bankruptcy.     55:  40,  44, 

51,  60. 
Maritime  lien  for  services  of  brokers.     70: 

387. 
§  2.  Fraud  and  secret  dealings  of  real  es- 
tate   broker   as    affecting    commissions. 
General  doctrine.     45:  33. 
In  order  to  decrease  price.     45:  36. 
In  case  of  conflicting  interests.     45:  37. 
Nondisclosure  of  true  position.    45:  37. 
Soliciting  others.     45:  39. 
Conspiring  with   purchaser.     45:  39. 
Secret  profit.     45:  39. 
Negligence  of  broker.     45:  39. 
Agreement  to  divide  commissions.    45:  40. 
By  purchase  of  property.     45:  40. 
Double   commissions.     45:  44. 
General  rule.     45:  44. 
Reasons  for  the  rule.     45:  47. 
Custom  or  usage.     45:  48. 
Pooling  arrangements.    45:  48. 
Exceptions    to    rule.     45:  48. 
General.     45:  48. 
Knowledge  or  consent.     45:  48. 
Mere  middleman.     45:  51. 
As  affecting  purchaser.    45 :  52. 
Miscellaneous  cases.    45:  53. 
Burden   of   proof.     45:  53. 
§  3.  Negligence,  fraud,  or  default  of  princi- 
pal, or  defective  title  as  affecting  real 
estate  broker's  commissions. 
Default    of    principal    in    entering    into    or 
carrying  out  contract  with 
purchaser.    43:  593. 
In  general.     43:  593. 
Refusal  to  enter  into  written  contract 
or  to  make  the  sale.     43: 
595. 
Refusing    to    accept    purchaser    found. 

43:  598. 
\ATiere  the  contract  is  oral.     43:  599. 
When    a   binding   contract    exists.     43: 

599. 
Principal's  refusal  to  enforce  contract, 
and   release   of   purchaser. 
43:  600. 
Refusing    to    execute    deed    or    convey- 
ance.    43:  602. 
Refusal    of    other    parties    to    convey. 

43:  603. 
Inability  of  principal  to  complete  sale. 

43:  603. 
Negligence  of   principal.     43:  604. 
Refusal  to  accept  purcha.se  money.    43: 

604. 
Purchaser's      pecuniary      responsibility. 

43:  604. 
Necessity  of  tender  of  performance  by 

purchaser.     43:  604. 
Effect  of   stipulations   in   broker's   con- 
tract.    43:  605. 
Principal's  acts  justified.     43:605. 
Actions  relating  to,  and  damages  there- 
for.    43:  605. 
Default     in    carrying     out     contract     with 
broker.    43:  606. 


Principal's     interference     with     broker. 

43:  606. 
Wrongful  termination  of  agency.     43: 
608. 
Defective  title.     43:  609. 

General  doctrine.    43:  609. 
The  question  of  notice.     43:  613. 
Misrepresentation    and    fraud    of    principal. 

43:  614. 
§  4.  Procuring  cause  of  sale  or  exchange. 
When   real   estate   broker  is   considered  as. 

44:  321. 
Procuring  cause  of  sale.     44:  321. 
General  rule.     44:  321. 
Evidence  to  establish  procuring  cause. 

44:  327. 
Acts   held   sufficient   to   establish.     44: 

328. 
Acts    held    not    sufficient    to    establish. 
44:  333. 
When   several   brokers   are   employed.     44: 

337. 
In  case  of  a  sale  by  his  principal.     44:  344. 
General  rule  governing.     44:  344. 
Negotiations  by  principal.    44:  345. 
Before    broker    has    reasonable    oppor- 
tunity to  reap  result  of  his 
efforts.    44:  345. 
Pending  broker's  negotiations  with  pur- 
chaser.     44:  345. 
After  suspension   of  negotiations.     44: 

346. 
After    withdrawal    or    termination    of 

agency,  etc.     44:  347. 
After  broker  has  failed  to  secure  pur- 
cnaser  or  to  close  negoti- 
ations.   44:  348. 
Within  time  limited  by  contract.     44: 

349. 
When  broker  has  option  or  sole  agency. 

44:  350. 
Effect    of    modification    of   terms.     44: 
350. 
§  5.  Performance  of  contract. 
By  a  real  estate  broker  to  find  a  purchaser 
or   effect    an    exchange   of 
his     principal's     property. 
44:  593. 
General  rule.     44:  593. 

Custom   as   affecting  performance.     44:  600. 
The  necessity    of    a    written  contract.     44: 

601. 
Necessity  of  consummated  sale.     44:  605. 
Time  of  performance.     44:  608. 
In  case  of  a  special  contract.     44:  611. 
In  case  of  an  exchange.     44:  612. 
Negotiations  by  principal.    44:  612. 
Acceptance  of  purchaser  by  principal.     44: 

616. 
Broker's  presence  at  sale  by  principal.     44: 

617. 
Ratification  of  broker's  acts.     44:  618. 
Position  of  purchaser  found.     44:  619. 
Effect  of  purchaser's  default.     44:  623. 
Failure  of  broker  to  report  purchaser.     44: 

624. 
Acts  held  sufficient  performance.    44:  625. 
Acts    held    not    to    constitute    performance. 
44:  629. 


BROTHER— BUILDING  AND  LOAN  ASSOCIATIONS,  II. 


817 


BROTHER. 

Insurable  Interest  in  Life  of,  see  Insurance, 
155-157. 


BUGS. 

In  Leased  Premises,  see  Landlord  and  Ten- 
ant, 60. 


BUILDING   AND    LOAN   ASSOCIATIONS. 

I.  In  General. 
II.  Stock;  Advance  Dues, 
ni.  Loans;   Mortgages. 

a.  In  General. 

b.  Premiums. 

c.  Usury.  % 

d.  Foreclosure. 
IV,  Dues  and  Fines. 

V.  Powers  Generally. 
VI.  Withdrawals. 

VII.  Termination;      Insolvency;     Winding 
up. 
Vni.  Foreign  Associations. 
IX.  Editorial  Notes. 

Foreign,  Effect  of  Appointment  of  Receiv- 
er on  Attachment  against,  see  Attach- 
ment, 55. 

Compensation  of  Attorney  Employed  by, 
see  Attorneys,  64. 

Restrictions  on,  as  Regulation  of  Com- 
merce, see  Commerce,  4. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  400-^04. 

Impairment  of  Contract  of,  by  Taxing,  see 
Constitutional  Law,   1156. 

Insurance  on  Life  of  Member,  see  Insur- 
ance, 145,  698,  1218. 

Title  of  Statute  as  to,  see  Statutes,  185, 
186. 

Tax  on,  see  Taxes,  68,  69,  185,  241. 


I.  In  General. 

1.  A  member  may  recover  from  a  building 
and  loan  association  the  amount  which  he 
has  contributed  to  it  to  enable  it  to  pay 
the  interest  on  its  debt  and  the  premium 
on  a  policy  of  life  insurance  assigned  as 
collateral  •  security  for  such  debt.  Tate  v. 
Commercial  Bldg.  Asso.  97  Va.  74,  33  S.  E. 
382,  •  45:  243 
By-laws. 

See  also  infra,  20,  21,  54. 

2.  A  by-law  more  or  less  affecting  the 
remedy  of  a  shareholder  in  a  building  and 
loan  association  may  be  passed  and  be  bind- 
ing on  existing  members,  so  far  at  least 
as  they  consented  to  the  exercise  of  such 
power  when  they  became  members,  al- 
though the  contract  between  the  member 
and  the  corporation  cannot  be  destroyed 
by  a  by-law.  Engelhardt  v.  Fifth  Ward 
Permanent  Dime  S.  &  L.  Asso.  148  N.  Y. 
281,  42  N.  E.  710,  35:  289 


Power  of  officers. 

3.  The  power  to  indorse  a'  check  which 
the  secretary  of  a  loan  association,  who  is 
its  general  financial  agent,  has  authority  to 
collect,  is  implied  in  the  power  given  him  to 
collect  its  securities  and  pay  the  money  for 
them  to  the  treasurer.  Gate  City  Bldg.  &, 
L.  Asso.  V.  National  Bank  of  Commerce,  126 
Mo.  82,  28  S.  W.  633,  27:  401 


II.  Stock;   Advance  Dues. 
See  also  infra,  14-18,  49-51,  73,  75-77. 

Income  stock. 

4.  Income  stock  on  which  60  per  cent 
shall  be  paid  in  advance,  with  cash  dividends 
limited  to  8  per  cent  as  the  only  proht  to 
the  stockholders,  while  any  dividends  be- 
yond these  shall  go  to  holders  of  other 
kinds  of  stock,  is  not  illegal  under  the  New 
York  law  applicable  to  savings  and  loan 
societies.  People  ex  rel.  Fairchild  v.  Pres- 
ton, 140  N.  Y.  549,  35  N.  E.  979,  24:  57 
Prepaid  stock;  advance  dues. 

See  also  infra,  26. 

5.  The  issuance  of  paid-up  stock  is  not 
authorized  by  the  Illinois  statute  govern- 
ing building  associations.  Rhodes  v.  Mis- 
souri Sav.  &  L.  Co.  173  111.  621,  50  N.  E. 
998,  42:  93 

6.  Prepaid  stock  on  which  60  per  cent  of 
the  amount  of  the  shares  shall  be  paid  in, 
and  on  which  dividends  at  the  rate  of  6  per 
cent  per  annum  on  the  amount  paid  in  may 
be  drawn  out,  with  any  further  dividends 
to  be  credited  and  payable  with  the  stock 
at  its  maturity,  is  not  illegal  under  N.  Y. 
Laws  1892,  chap.  689.  People  ex  rel.  Fair- 
child  V.  Preston,  140  N.  Y.  549,  35  N.  E. 
979,  24:  57 

7.  The  illegality  of  an  issue  of  paid-up 
stock  by  a  building  and  loan  association 
cannot  be  asserted  by  stockholders  who 
have  taken  it  and  paid  for  it  in  order  to 
place  themselves  in  a  better  position  with 
respect  to  other  stockholders,  who  do  not 
question  its  validity*,  than  they  would  be 
in  if  the  stock  had  been  valid.  Gibson  v. 
Safety  Homestead  &  L.  Asso.  170  ul.  44,  48 
N.  E.  580,  39:  202 

8.  Dues  may  be  paid  in  advance  with  the 
assent  of  the  directors  in  a  savings  and  loan 
society,  under  the  New  York  banking  law 
(N.  Y.  Laws  1892,  chap.  689),  and  a  rebate 
or  discount  on  such  payments  allowed  at 
such  rate  per  annum  as  the  directors  from 
time  to  time  prescribe.  People  ex  rel.  Fair- 
child  V.  Preston,  140  N.  Y.  549,  35  N.  E. 
979,  24:  57 
Preferred  stock. 

See  also   infra,    11,  87-89. 

9.  The  issuance  of  preferred  stock  by  a 
building  and  loan  association  which  is  based 
on  principles  of  co-operation,  equality,  and 
mutuality  is  void  as  against  public  policy. 
Sumrall  v.  Columbia  Finance  &  T.  Co.  106 
Ky.  260,  50  S.  W.  69,  44:  659 
Maturity  of  stock. 

10.  A  mistaken  declaration  of  the  matu- 
rity of  stock  by  a  building  and  loan  associa- 


818 


BUILDING  AND  LOAN  ASSOCIATIONS,  III.  a. 


tion,  when  the  stock  is  in  fact  not  matured, 
will  not  make  the  stockholder  a  creditor  or 
put  him  in  the  position  of  a  holder  of  ma- 
tured stock  in  subsequently  winding  up  the 
affairs  of  the  association  when  insolvent. 
Post  V.  Mechanics'  Bldg.  &  L.  Asso.  97 
Tenn.  408,  37  S.  W.  216,  34:  201 

11.  A  guaranty  that  preferred  stock  in  a 
building  and  loan  association  shall  mature 
at  a  certain  time,  and  that  the  common 
stock  shall  constitute  a  guaranty  there- 
for, constitutes  a  guaranty  for  the  accu- 
mulation of  sufficient  profits  or  dividends  to 
mature  the  preferred  stock,  and  does  not 
control  a  distribution  of  the  capital  and 
assets  of  the  concern  on  the  winding  up  of 
the  association,  when  there  are  no  profits 
on  hand.  Sumrall  v.  Columbia  Finance  & 
T.  Co.  106  Ky.  260,  50  S.  W.  69,  44:  659 


III.  Loans;  Mortgages, 
a.  In  General. 

Dues  and  Fines  Paid  by  Borrower,  see 
infra,  IV. 

Law  Governing,  see  Conflict  of  Laws,  27, 
.  28. 

Giving  Priority  Over  Other  Liens,  see  Con- 
stitutional Law,  403;   Statutes,  50. 

Title  of  Statute  as  to,  see  Statutes,  186. 

See  also  infra,  64,  79,  80. 

For  Editorial  Notes,  see  infra,  IX.  §  1. 

12.  The  necessary  expenses  of  perfect- 
ing a  loan  may  be  taken  out  of  the  money 
loaned  to  a  member  by  a  loan  association. 
Iowa  Sav.  &  L.  Asso.  v.  Heidt,  107  Iowa, 
297,  77  N.  W.  1050,  43:  689 
Cancelation  of  mortgage. 

13.  A  borrowing  member  of  a  building  as- 
sociation is  not  entitled  to  cancelation  of 
the  mortgage  given  to  secure  the  loan,  un- 
til the  dues  paid  and  the  dividends  declared 
and  not  paid,  equal  the  par  value  of  his 
shares.  Eversmann  v.  Schmitt,  53  Ohio  St. 
174,  41  N.  E.  139,  ^  29:  184 
Forfeitures;  credits  on 'default. 

See  also  infra,  77. 

For  Editorial  Notes,  see  infra,  IX.  §  1. 

14.  A  borrowing  member  of  a  building 
and  loan  association  has  no  right  to  receive 
interest  on  his  stock  payments,  or  to  have 
such  payments  applied  in  reduction  of  his 
indebtedness,  unless  such  right  is  express- 
ly reserved.  Reeve  v.  Ladies  Bldg.  Asso.  56 
Ark.  335,   19  S.  W.  917,  18:  129 

15.  Forfeited  payments  made  by  a  mem- 
ber of  a  loan  association  on  shares  which 
lapse  in  consequence  of  his  default  cannot 
be  credited  upon  his  loan  from  the  associa- 
tion. Pioneer  Sav.  &  L.  Co.  v.  Cannon,  96 
Tenn.  559,  36  S.  W.  386,  33:  112 

16.  Forfeiture  of  stock  in  a  building  and 
loan  association  for  failure  to  make  re- 
quired payments,  if  it  is  authorized  by  the 
contract  of  the  parties,  the  rules  and  regu- 
lations and  by-laws  of  the  association,  and 
the  statute  under  which  it  is  created,  can- 
not be  relieved  against;  and  the  mortgage 
given  by  such  member  may  be  foreclosed  for 


the  full  amount  of  his  original  Jo&n,  with  in- 
terest, without  any  abatemtiit  for  the  value 
of  the  stock  or  for  payments  made  by  him 
thereon.  Southern  Bldg.  &  L.  Asso.  v. 
Anniston  Loan  &  T.  Co.  101  Ala.  582,  15 
So.   123,  29:  120 

17.  The  application  upon  a  mortgage  to 
a  building  and  loan  association,  of  pay- 
ments made  by  the  mortgagor  upon  his 
shares  of  stock  in  the  association,  which 
were  declared  forfeited  after  default,  must 
be  allowed  on  foreclosure  of  the  mortgage, 
notwithstanding  a  rigid  provision  in  his 
contract  that  his  membership  and  all  sums 
theretofore  paid  should  be  forfeited  in  case 
of  default;  and  a  claim  that  the  loan  and 
membership  are  separate  and  distinct  con- 
tracts cannot  be  sustained  after  the  ter- 
mination of  the  membership  and  the  ma- 
turity of  the  loan  by  an  election  to  fore- 
close. Randall  v.  National  Bldg.  L.  &  P. 
Union,  42  Neb.  809,  60  N.  W.  1019, 

29:  133 

18.  Stock  payments  by  a  borrowing  mem- 
ber of  a  building  and  loan  association  are 
not  ipso  facto  credits  upon  his  indebtedness, 
so  as  to  reduce  pro  tanto  the  amount  due 
on  hia  mortgage,  but  a  borrower  may  elect 
to  have  payments  on  account  of  stock  ap- 
plied upon  his  indebtedness  to  the  associa- 
tion. Id. 
Computing  amount  due  on  default. 

19.  To  compute  the  amount  of  recovery 
on  foreclosure  of  a  mortgage  in  a  building 
and  loan  association  for  default  of  the 
mortgagor,  there  should  be  added  to  all  ar- 
rearages of  dues,  interest,  and  fines  the 
present  value  of  the  anticipated  future  pay- 
ments, all  stated  dues  and  interest  for  the 
remainder  of  the  time  required  for  the  ma- 
turity of  the  stock;  that  is,  the  amount  of 
principal,  which,  with  interest  thereon  fro)n 
the  present  date  to  the  time  of  maturity  of 
the  stock,  would  equal  the  total  amount  of 
such  anticipated  future  payments.  Rob- 
erts V.  American  Bldg.  &  L.  Asso.  62  Ark. 
572,  36  S.  W.    1085,  33:  744 

20.  Members  of  a  building  and  loan  asso- 
ciation are  bound  by  the  articles  of  associa- 
tion which  show  the  scheme  of  the  organ- 
ization and  define  the  obligation  of  the  as- 
sociation and  the  rights  of  members,  as 
such  articles  constitute  a  contract.  Engel- 
hardt  v.  Fifth  Ward  Permanent  Dime  S.  & 
L.  Asso.   148  N.  Y.  281,  42  N.  E.  710, 

35:  289 

21.  A  by-law  that  withdrawing  members 
shall  be  paic^  in  the  order  of  the  presenta- 
tion of  their  application  is  a  reasonable 
regulation  of  a  building  and  loan  associa- 
tion, and  is  binding  on   existing  members. 

Id. 

22.  Notice  of  withdrawal  before  the  ap- 
pointment of  a  receiver  of  a  building  and 
savings  association  does  not  give  priority  to 
a  shareholder  of  an  insolvent  association  un- 
der by-laws  providing  for  the  payment  of 
withdrawals  "'according  to  the  priority  of 
notice,"  but  also  providing  that  no  more 
shall   be   paid   in   any    month   than    30   per 

j  cent  of  the  cash  receipts  of  the  loan   fund 
during  that  month,  as  these  by-laws  con- 


BUILDING  AND  LOAN  ASSOCIATIONS,  III.  b.  c. 


81» 


template  a  going  concern.     Rabbitt  v.  Wil- 
coxen,  103  Iowa,  35,  72  N.  W.  306,       38:  183 

23.  A  nonborrowing  member  of  a  mutual 
building  association  cannot  be  allowed  to 
bring  an  action  to  take  judgment  against 
the  association,  when  there  is  no  money  in 
the  treasury  legally  applicable  to  the  pay- 
ment of  his  claim,  although  he  has  com- 
plied with  the  prescribed  conditions  of  with- 
drawal. Heinbokel  v.  National  Sav.  L.  & 
B.  Asso.  58  Minn.  340,  59  N.  W.   1050, 

25:  215 

24.  A  withdrawing  member  cannot  sue  a 
loan  association  until  there  are  funds  in 
the  treasury  out  of  which  his  claim  can  be 
paid, — at  least  in  the  absence  of  bad  faith 
or  the  insolvency  of  the  association,  where 
the  articles  of  association  provide  for  re- 
funding to  withdrawing  members  "where 
the  necessary  funds  are  collected."  Engel- 
hardt  v.  Fifth  Ward  Permane»t  Dime  S. 
&  L.  Asso.  148  N.  Y.  281,  42  N.  fe.  710, 

35:  289 

25.  Notice  of  withdrawal  from  an  insol- 
vent loan  association  does  not  entitle  mem- 
bers to  priority  of  payment  over  their  fel- 
low stockholders.  Gibson  v.  Safety  Home- 
stead &  L.  Asso.  170  111.  44,  48  N,  E.  580, 

39:  202 

26.  Payment  of  dues  in  advance  under 
an  agreement  with  a  building  and  loan  as- 
sociation for  interest  upon  the  advances 
until  they  are  absorbed  by  dues  does  not 
entitle  the  stockholder  in  case  of  the  insol- 
vency of  the  association  to  be  treated  as  a 
creditor  with  the  right  to  repayment  of  his 
advances  with  interest, — especially  when  the 
agreement  for  interest  thereon  was  not  war- 
ranted by  the  charter.  Post  v.  Mechanics' 
Bldg.  &  L.  Asso.  97  Tenn.  408,  37  S.  W.  216, 

34:  201 

27.  Borrowing  members  of  an  insolvent 
building  and  loan  association  are  not  es- 
topped from  contesting  a  scheme  of  settle- 
ment agreed  upon  by  a  majority  of  the 
stockholders,  and  adopted  by  the  court,  on 
a  bill  filed  by  certain  other  members,  bor- 
rowers and  nonborrowers,  "on  behalf  of 
themselves  and  all  others  who  may  be  sim- 
ilarly situated  and  having  like  interests, 
who  may  join  them  as  complainants," 
against  the  association,  a  corporation,  as 
sole  defendant;  none  of  the  complainants  be- 
ing in  exactly  the  same  class  as  such  bor- 
rowing members.  Ottensoser  v.  Scott,  47 
Fla.   276,   37   So.   161,  66:  346 

b.  Premiums. 

See  also  infra,  35,  44,  48. 

For  Editorial  Notes,  see  infra,  IX.  §  I. 

28.  A  fixed  premium  is  established  by  a 
by-law  of  a  building  association  forbidding 
loans  to  be  made  at  a  premium  greater 
than  30  per  cent  or  less  than  23%  per  cent. 
McCauley  v.  Workingman's  Bldg.  &  S.  As- 
so. 97  Tenn.  421,  37  S.  W.  212,  35:  244 

29.  The  taking  of  a  fixed  premium  for  a 
loan  by  a  building  association  is  forbidden 
by  a  statute  providing  that  the  loan  shall 
be  to  the  highest  bidder.  Id. 


30.  A  building  and  loan  association  may 
fix  a  minimum  premium  to  be  deducted  in 
advance  or  paid  in  periodical  instalments, 
but  in  either  case  such  premium  must  be  a 
certain,  definite  sum,  fixed  and  determined 
at  the  time  of  the  making  of  the  loan. 
Floyd  V.  National  Loan  &  Invest.  Co.  49 
W.  Va.  327,  38  S.  E.  653,  54:  536 

31.  A  fixed  minimum  premium  in  a  build- 
ing association  which  may  be  paid  in  ad- 
vance or  in  periodical  instalments  must  be 
a  lump  sum  certain  and  definite,  and  not 
a  percentage  payable  indefinitely  at  fixed 
periods.  Gray  v.  Baltimore  Bldg.  &  L. 
Asso.  48  W.  Va.  164,  37  S.  E.  533,       54:  217 

32.  The  exaction  of  an  arbitrary  sum  in 
addition  to  interest  from  a  borrower,  when 
there  is  no  competition,  is  not  authorized  by 
Iowa  Code,  1873,  tit.  9,  chap.  6,  allowing 
premiums  bid  for  the  right  of  precedence  in 
taking  loans.  Iowa  Sav.  &  L.  Asso.  v.  Heidt, 
107  Iowa,  297,  77  N.  W.   1050,  43:  689 

c.  Usury. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws. 

56-59. 
Class  Legislation  as  to,   see   Constitutional 

Law,  400-402. 
For  Editorial  Notes,  see  infra,  IX.  §1. 

33.  Persons  compelled  to  take  stock  in 
a  loan  association  to  secure  a  loan,  but  for 
whom  the  scheme  of  the  concern  provides  no 
dividends  or  other  share  in  the  profits,  can- 
not be  regarded  as  members  and  their  pay- 
ments as  made  upon  stock  calls  for  the  pur- 
pose of  taking  them  out  of  the  usury  law. 
Falls  V.  United  States  Sav.  L.  &  B.  Co.  97 
Ala.  417,  13  So.  25,  24:  174 
What  constitutes  usury. 

34.  The  contract  of  a  member  borrowing 
money  from  a  building  and  loan  association 
is  not  within  the  usury  laws,  where  the  rate 
of  interest  to  be  paid  cannot  be  known  un- 
til the  maturity  of  the  shares,  and  wheth- 
er it  will  be  greater  or  less  than  the  legal 
rate  is  wholly  contingent  on  the  prosperity 
of  the  association.  Reeve  v.  Ladies  Bldg. 
Asso.  56  Ark.  335,  19  S.  W.  917,  18:  129 

35.  A  note  to  a  building  and  loan  associa- 
tion stipulating  for  5  per  cent  interest  per 
annum,  and  5  per  cent  premium  per  annum, 
is  not  usurious  under  the  laws  of  Tennes- 
see. Pioneer  Sav.  &  L.  Co.  v.  Cannon,  96 
Tenn.  599,  36  S.  W.  380,  33:  112 

36.  A  percentage  payable  to  a  building 
and  loan  association  indefinitely  and  at  fixed 
periods  is  interest,  although  it  be  called 
premium,  and,  being  in  addition  to  the  legal 
rate  of  interest  already  charged,  is  usu- 
rious. Gray  v.  Baltimore  Bldg.  &  L.  Asso. 
48  W.  Va.  164,  37  S.  E.  533,  54:  217 

37.  A  plan  of  a  building  and  loan  asso- 
ciation by  which  a  borrower  is  required 
to  bid  shares  of  its  stock  as  a  premium  for 
a  loan,  upon  which  he  is  required  to  pay 
the  dues  the  same  as  on  the  stock  which 
represents  his  loan,  which  dues  inure  to  the 
benefit  of  the  association,  is  a  mere  device 
to  cover  usury,  and  if,  when  added  to  the 
regular  interest  charge,  the  aggregate  is  usu- 


320 


BUILDING  AND  LOAN  ASSOCIATIONS,  ILL  d. 


rious,  the  contract  cannot  be  enforced. 
Pacific  States  Savings.  L.  &  Bldg.  Co.  v. 
Hill,  40  Or.  280,   67   Pac.    103,  56:  163 

38.  Loans  at  fixed  premiums  without  free 
and  competitive  bidding,  as  required  by  the 
Tennessee  statutes  (Mill.  &  V.  Code,  §  1751), 
cannot  be  lawfully  made  by  a  building  and 
loan  association,  but  are  usurious,  if  the 
premium  is  more  than  lawful  interest.  Post 
V.  Mechanics'  Bldg.  &  L.  Asso.  97  Tenn.  408, 
37  S.  W.  216,  34:  201 

39.  A  contract  with  a  building  and  loan 
association  for  a  loan,  which  provides  for 
a  fixed  premium  which,  added  to  the  inter- 
est reserved,  exceeds  the  legal  rate,  is  usu- 
rious. Shannon  v.  Georgia  State  Bldg.  &  L. 
Asso.  78  Miss.  955,  30  So.  51,  57:  800 

40.  The  exaction  of  a  premium  consisting 
of  a  certain  percentage  upon  the  amount  of 
the  loan,  payable  monthly  in  the  same  way 
interest  is  paid,  which,  together  with  the  re- 
quired interest,  exceeds  the  rate  allowed  by 
law,  is  not  authorized  by  a  provision  in 
a  statute  governing  building  associations 
that  the  provisions  as  to  bidding  for  loans 
shall  not  apply  to  an  association  which 
fixes  the  rate  of  premium  in  its  by-laws 
or  by  resolution,  and  that  no  premium  shall 
be  considered  or  treated  as  interest,  since 
the  statute  will  not  be  presumed  to  mean 
by  the  words  "rate  of  premium"  the  same 
thing  as  rate  of  interest.  Washington 
National  Bldg.  L.  &  I.  Asso.  v.  Stanlev,  38 
Or.  319,  63  Pac.  489,  58*:  816 

41.  To  bring  a  transaction  by  a  building 
and  loan  association  within  the  statute  ex- 
empting it  from  the  usury  laws  it  must  be 
effected  in  the  mode  fixed  by  the  statute, 
so  that  in  case  the  statute  prescribes  that 
loans  shall  be  made  by  offering  the  money 
to  the  highest  bidder  in  an  open  meeting, 
or  under  a  by-law  establishing  a  uniform 
premium  rate,  a  loan  will  not  be  exempt 
from  the  usury  law,  which  is  effected  by 
private  contract  with  the  borrower  with- 
out such  by-law.  Borrowers'  &  I.  Bldg. 
Asso.  V.  Eklund,  190  111*.  257,  60  N.  E.  521, 

52:  637 

42.  The  premium  for  a  loan,  if  reason- 
able in  amount,  need  not  be  ascertained  by 
competitive  bidding  for  precedence  in  ob- 
taining the  loan,  but  it  may  be  fixed  at  a 
uniform  rate  by  the  constitution  and  by- 
laws of  the  association,  under  a  statute 
empowering  building  and  loan  associations 
to  impose  such  premiums  or  assessments  as 
may  be  provided  for  in  the  constitution  and 
by-laws,  and  exempting  such  associations 
from  the  operation  of  the  usury  laws. 
Cramer  v.  Southern  Ohio  L.  &  T.  Co.  72 
Ohio  St.  395.  74  X.  E.  200,  6;):  415 
Effect  of  usury. 

Curative  Act  as  to,  see  Constitutional  Law, 

133-135. 
See   also   infra,   76. 

43.  A  borrower  from  a  building  associa- 
tion at  a  fi::cd  premium  which  is  forbidden 
l)y  law  will  not  be  compelled  to  comply 
with  his  contract  for  a  series  of  years  upon 
the  possibility  that  upon  the  winding  up 
of   the  association    it   will   not   prove  to   be 


usurious.     McCauley  v.  Workingman's  Bldg. 
&  S.  Asso.  97  Tenn.  421,  37  S.  W.  212, 

35:  244 

44.  Only  the  principal  of  the  loan,  with 
legal  interest  thereon,  together  with  such 
sums  as  have  been  necessarily  expended  in 
preserving  the  property,  less  the  amounts 
paid  into  the  association  by  the  borrower 
as  dues,  interest,  premium,  and  fines,  to  be 
treated  in  the  settlements  as  partial  pay- 
ments, can  be  collected  by  a  building  and 
loan  association  on  a  contract  for  a  premium 
which  the  law  deems  usurious.  Floyd  v. 
National  Loan  &  Invest.  Co.  49  W.  Va.  327, 
38  S.  E.  653,  54:  536 

45.  A  loan  by  a  building  association,  usu- 
rious on  its  face,  will  be  set  aside  upon  equit- 
able terms,  by  requiring  the  borrower  to  re- 
pay the  loan  with  legal  interest,  taking 
credit  for  such  payments  as  may  have  been 
made,  and  proper  interest.  McCauley  v. 
Workingman's  Bldg.  &  S.  Asso.  97  Tenn. 
421,  37  S.  W.  21?,  35:  244 

d.  Foreclosure. 

Law  Governing,  see  Conflict  of  Laws,  49. ' 

46.  A  receiver  of  a  building  and  loan  as- 
sociation cannot  foreclose  under  the  power 
of  sale  contained  in  mortgages  held  by  the 
association.  Strauss  v.  Carolina  I.  Bldg.  & 
L.  Asso.  117  N.  C.  308,  23  S.  E.  450,      30:  693 

47.  On  foreclosure,  by  the  receiver  of  an 
insolvent  building  and  loan  association,  of  a 
mortgage  given  by  a  borrowing  member,  at- 
torneys' fees  are  properly  allowed;  the 
mortgage  providing  that  the  borrowing 
member  "promises  and  agrees  to  pay  a 
reasonable  sum  of  money  for  solicitors'  fees 
that  may  be  incurred  by  the  associa- 
tion in  the  event  that  foreclosure  of  this 
mortgage  becomes  necessary."  Ottensoser 
V.  Scott,  47  Fla.  276,  37  So.  161,  66:  346 

48.  On  foreclosure  by  the  receiver  of  an 
insolvent  building  and  loan  association 
against  a  borrowing  member  who  paid  his 
dues  and  assessments  promptly  until  the 
association  was  dissolved  by  the  appoint- 
ment of  the  receiver  through  no  fault  of 
such  member,  the  receiver  is  not  entitled 
to  charge  such  member  with  the  so-called 
earned  premium,  where  such  premium  is  in 
the  form  of  a  deduction  from  the  sura 
loaned.  Id. 

49.  A  member  of  a  building  and  loan  as- 
sociation who  borrows  money  from  the  as- 
sociation, and  bids  a  premium  for  the  privi- 
lege of  obtaining  the  loan,  and  executes  his 
1)1111(1  for  the  amount  of  the  loan  and  pre- 
mium, and  gives  a  mortgage  to  secure  the 
payment  of  such  bond,  and  also  assigns  to 
such  association  his  shares  of  stock  as  col- 
lateral security  for  such  payment,  is  not 
entitled,  in  an  action  brought  to  foreclose 
such  mortgage  by  the  receiver  of  such  asso- 
ciation (said  association  being  insolvent),  to 
apply  the  amounts  he  has  paid  as  dues  upon 
his  stock  in  reduction  of  his  indebtedness. 
Hale  V.  Cairns,  8  N.  D.  145,  77  N.  W.  1010, 

44:  261 

50.  In  a  proceeding  to  foreclose  a  mort- 


BUILDING  AND  LOAN  ASSOCIATIONS.    IV.  V. 


321 


gage  to  an  insolvent  building  and  loan  as- 
sociation to  aid  in  winding  it  up  and  dis- 
tributing its  assets,  no  decree  for  the  sale 
of  the  pledged  stock  will  be  made  in  the 
event  that  the  mortgaged  land  proves  in- 
sufficient, since  the  object  of  the  proceeding 
is  to  pay  oflf  the  stock  by  an  equitable  dis- 
tribution of  the  assets.  Mcllwaine  v.  El- 
lington, 49  C.  C.  A.  446,  111  Fed.  578, 

55:  933 
51.  Borrowers  from  a  loan  association 
who  have  accepted  its  stock  and  dealt  with 
it  in  its  corporate  capacity  cannot  defeat 
its  action  to  foreclose  the  mortgage  on  the 
ground  that  the  articles  of  incorporation 
were  not  acknowledged  by  the  number  of 
persons  required  by  statute,  where  the  asso- 
ciation apparently  and  in  good  faith  at- 
tempted to  comply  with  the  law.  Wash- 
ington National  Bldg.  L.  &  I.  Assp.  v.  Stan- 
ley, 38  Or.  319,  63  Pac.  489,  "    58:  816 


rv.  Dues  and  Fines. 
See  also  snprtt,  7,  8,  48,  49;  infra,  72,  74-76. 

52.  A  deduction  of  a  specified  part  of  the 
dues  paid  to  a  loan  association  for  neces- 
sary expenses  of  management  is  lawful. 
Iowa  Sav.  &  L.  Asso.  v.  Heidt,  107  Iowa, 
297,  77  N.  W.  1050,  43 :  687 

53.  The  appointment  of  a  receiver  for  a 
building  and  loan  association  terminates  the 
contract  of  a  shareholder  who  is  also  a  bor- 
rower and  has  given  a  mortgage  to  secure 
the  loan,  so  that  he  is  not  liable  for  the 
monthlv  dues  accruing  after  such  appoint- 
ment. 'Buist  V.  Brvan,  44  S.  C.  121,  21  S. 
E.  537,  29:127 
Fines. 

For  Editorial  Notes,  see  infra,  IX.  §  3. 

54.  In  case  the  by-laws  of  a  loan  associa- 
tion do  not  impose  as  great  a  fine  as  is  au- 
thorized by  the  charter,  the  by-laws,  and 
not  the  charter,  will  govern.  Dupuv  v. 
Eastern  Bldg.  &  L.  Asso.  93  Va.  460,  25 
S.  E.  637,  35:215 

55.  Cumulation  of  fines  for  each  addition- 
al month  of  default  is  not  permitted  by  the 
by-laws  of  a  loan  association  providing 
that  borrowing  members  who  shall  neglect 
to  pay  instalments  as  they  become  due  shall 
pay  a  fine  of  20  cents  per  month  on  each 
$100  that  they  have  borrowed,  so  as  to 
make  the  amount  of  fine  for  any  month 
either  as  many  times  the  designated  amount 
as  the  number  of  such  month  beyond  com- 
mencement of  the  default,  or  the  designat- 
ed amount  multiplied  by  the  sum  borrowed 
and  the  arrearages.  Id. 

56.  Fines  for  failure  to  make  payments 
to  a  building  and  loan  association  when 
they  are  due  are  in  the  nature  of  liquidat- 
ed damages,  which,  so  far  as  they  are  rea- 
sonable, may  be  sustained  by  a  court  of 
equity  even  without  the  sanction  of  any 
statute.  Roberts  v.  American  Bldg.  &  L. 
Asso.  62  Ark.  572,  36  S.  W.  1085.        ^3:  744 

57.  A  fine  of  5  cents  for  the  first  default 

L.R.A.  Dig.— 21. 


on  each  share,  and  10  cents  for  each  sub- 
sequent default  by  a  member  of  a  loan  as- 
sociation, is  not  exorbitant.  Iowa  Sav.  & 
L.  Asso.  V.  Heidt,  107  Iowa,  297,  77  N.  W. 
1050,  43:689 


V.  Powers  Generally. 

As  to  negotiable  paper. 

For  Editorial  Notes,  see  infra,  IX.  §  1. 

58.  The  right  of  a  building,  loan,  and  in- 
vestment society  to  execute  negotiable 
paper  is  implied  in  the  power  to  incur  debts 
for  various  purposes  and  to  sell  and  mort- 
gage property.  Grommes  v.  Sullivan,  26  C. 
C.  A.  320,  53  U.  S.  App.  359,  81  Fed.  45, 

43:419 

59.  The  acceptance  of  a  negotiable  order 
by  a  building,  loan,  and  investment  society 
which  has  power  to  execute  negotiable  paper 
under  some  circumstances  is  binding  on  the 
corporation  in  favor  of  a  bona  fide  holder, 
although  nothing  was  due  to  the  drawer  of 
the  order  when  it  was  accented.  Id. 
To  borrow  money. 

For  Editorial  Notes,  see  infra,  IX.  §  1. 

60.  A  building  and  loan  association,  the 
plan  of  which  contemplates  the  maturing 
of  its  stock  by  profits  and  accumulations, 
and  the  stock  of  which  is  issued  in  sep- 
arate series  at  diflFerent  dates,  has  power, 
in  the  absence  of  a  statute  or  by-law  to 
the  contrary,  to  borrow  money  to  pay  off 
nonborrowing  holders  of  a  particular  series 
of  stock  when  it  attains  its  par  value. 
North  Hudson  Mut.  Bldg.  &  L.  Asso.  v. 
First  Nat.  Bank,  79  Wis.  31,  47  N.  W.  300, 

11:845 

61.  A  building  and  loan  association  which 
has  power  to  borrow  money  may,  in  the  ab- 
sence of  any  law  expressly  prohibiting  it, 
secure  the  payment  of  the  loan  by  an  as- 
signment of  the  bonds  and  mortgages  which 
it  holds  against  its  members.  Id. 

62.  Where  the  directors  of  a  building  and 
loan  association  have  borrowed  money  and 
applied  it  to  the  retirement  of  matured 
shares  of  stock,  the  corporation  is  estopped 
by  receiving  the  benefit  of  the  loan  from 
setting  up  a  want  of  power  to  make  it. 
Even  if  the  stock  was  not  fully  matured, 
and  there  was,  in  consequence,  no  power  to 
borrow  the  money,  the  corporation  cannot 
take  advantage  of  that  fact  without  refund- 
ing the  money  advanced  and  used  for  its 
benefit.  Id. 
To  purchase  land. 

63.  A  building  and  loan  association  has 
no  power  to  encage  in  the  business  of  trad- 
ing in  real  estate  or  acquiriner  the  same,  ex- 
cept as  incidental  to  its  legitimate  business. 
National  Home  B.  &  L.  Asso.  v.  Home  Sav. 
Bank.  181  Til.  :^5.  .^4  N.  E.  619,  64:  399 

64.  The  right  of  a  building  and  loan  as- 
sooiation  to  purchase  such  real  estate  as 
it  has  a  mortgage  on  for  its  necessary  pro- 
tection in  makin?  collections  does  not  ex- 
tend to  the  purchase  of  additional  real  es- 
tate, though  taken  as  a  part  of  the  same 
transaction.  Id. 


822 


BUILDING  AND  LOAN  ASSOCIATIONS,  VI.  VIL 


VL  Withdrawals. 

Running  of  Limitations  against  Withdraw- 
ing Member,  see  Limitation  of  Actions, 
93. 

See  also  supra,  21-25. 

For  Editorial  Notes,  see  infra,  IX.  §  2. 

65.  The  right  of  members  of  a  building 
and  loan  association  under  the  by-laws, 
upon  one  month's  notice,  to  withdraw  from 
it  the  contributions  they  have  made  to  its 
funds,  is  not  applicable  to  funds  loaned  by 
the  association.  Only  the  funds  in  the 
hands  of  the  association  can  be  thus  with- 
drawn. State  V.  Redwood  J^'alls  Bldg.  &  L. 
Asso.  45  Minn.  154,  47  N.  W.  540.     10:  752 

66.  A  stockholder  does  not  become  a  gen- 
eral creditor  of  a  mutual  building  associa- 
tion by  giving  notice  of  withdrawal.  Hein- 
bokel  V.  National  bav.  L.  &  B.  Asso.  58 
Minn.  340,  59  N.  W.  1050,  25:  215 

67.  The  inability  of  a  building  and  loan 
association  to  comply  with  its  contract 
abrogates  a  condition  of  the  payment  of 
withdrawals,  requiring  certain  collections  to 
be  first  made,  so  that  an  action  may  be 
brought  in  another  state  by  one  who  has 
given  proper  notice  of  withdrawal.  South- 
em  Bldg.  &  L.  Asso.  V.  Price,  88  Md.  155, 
41   Atl.  53,  42:  206 

68.  Notice  of  withdrawal  given  by  a 
member  of  a  building  and  loan  association 
does  not  sever  his  relation  so  completely  as 
to  preclude  him  from  bringing  a  suit  for  the 
appointment  of  a  receiver  and  the  winding 
up  of  the  affairs  of  the  company,  when  it 
has  failed  in  its  duty  to  set  apart  a  fund 
to  meet  its  obligation  to  withdrawing  mem- 
bers, and  the  stockholders  have  taken  such 
action  as  to  preclude  the  possibility  of  re- 
lief from  that  source.  Andrews  v.  Roanoke 
B.  A.  &  L  Co.  98  Va.  445,  36  S.  E.  ."SSI. 

49 :  659 


VII.  Termination;  Insolvency;  Winding  up. 

Receiver  for  Association,  see  Receivers,  77. 
See  also  supra,  46-50,  53;  infra,  84-86. 

69.  A  judgment  confessed  by  a  building 
and  loan  association,  otherwise  than  for  a 
debt  contracted  or  money  loaned  at  the 
time,  will,  under  Va.  Code,  §  1149,  inure 
ratably  to  the  benefit  of  all  existing  credit- 
ors. Tate  V.  Commercial  Bldg.  Asso.  97 
Va.  74,  33  S.  E.  382,  45:  243 
Accounting  when  association  insolvent. 

70.  Upon  the  voluntary  dissolution  of  a 
building  association  the  principle  of  ac- 
counting with  members  is  the  same  whether 
the  association  is  solvent  or  insolvent. 
People's  Bldg.  &  L.  Asso.  v.  McPhillamy.  81 
Miss.  61,  32  So.  1001,  _  59:743 

71.  The  form  of  the  proceeding  in  which  a 
settlement  of  the  accounts  between  a  bor- 
rowing member  and  an  insolvent  building 
association  is  sought  cannot  affect  the  meth- 
od of  the  accounting.  Id. 

72.  When  an  insolvent  building  and  loan 
association   goes   into   voluntary  liquidation 


prematurely,  a  borrowing  member  cannot  be 
credited  on  his  debt  with  the  full  amount  of 
dues  he  has  paid  in  on  his  stock,  but  his 
stock  payments  must  share  the  losses  and 
expenses  of  winding  up,  and  the  balance 
only  be  credited  on  the  loan,  when  it  can 
be  ascertained.  Id. 

73.  Whether  the  value  of  the  shares  of  a 
borrowing  member  of  a  building  and  loan 
association  which  is  to  be  credited  upon  his 
loan  in  case  of  the  premature  voluntary 
liquidation  of  the  association  should  be 
estimated  and  credited  in  advance  of  the 
settlement  of  the  affairs  of  the  association, 
or  the  credit  made  only  at  the  settlement, 
must  be  determined  by  the  court  in  its 
sound  discretion.  Id. 

74.  The  affairs  of  an  insolvent  building 
and  loan  association  are  to  be  settled  in 
North  Carolina  by  charging  borrowing 
members  6  per  cent  interest  on  the  amounts 
they  received,  with  a  credit  for  all  they 
have  pafld  into  the  concern,  whether  it  was 
called  "fines,"  "penalties,"  "weekly  dues," 
or  by  any  other  name;  while  nonborrowing 
members  are  entitled  to  inter^t  at  the  same 
rate  upon  the  amounts  due  tSem.  Strauss 
V.  Carolina  I.  Bldg.  &  L.  Asso.  117  N.  C. 
308,  23  S.  E.  450,  30:  693 

75.  The  monthly  payments  for  subscrip- 
tions to  the  shares  of  a  building  and  loan 
association,  which  have  been  pledged  as  col- 
lateral security  for  a  loan  secured  by  mort- 
gage, in  which  interest  and  dues  are  con- 
solidated, should  be  applied  upon  the  mort- 
gage in  determining  whether  that  has  been 
paid,  when  the  association  is  in  the  hands 
of  a  receiver.  Buist  v.  Bryan,  44  S.  C.  121, 
21  S.  E.  537,  29:  127 

76.  Payments  of  dues  upon  stock  in  a 
building  and  loan  association  cannot  be 
credited  upon  an  usurious  loan  to  stockhold- 
ers in  winding  up  the  affairs  when  the  as- 
sociation is  insolvent,  since  such  credit 
would  relieve  the  borrowing  shareholders 
from  their  share  of  the  losses  and  throw 
them  all  on  the  nonborrowing  stockholders. 
Post  V.  Mechanics'  Blag.  &  L.  Asso.  97  Tenn. 
408,  37  S.  W.  216,  34:  201 

77.  On  a  settlement  with  an  insolvent 
building  and  loan  association,  borrowing 
members  are  not  entitled  to  be  credited 
with  the  full  face  or  book  value  of  their 
stock,  but  only  for  such  pro  rata  amount 
thereof  as  the  actual  conditions  may  war- 
rant, based  upon  the  net  assets  in  the 
hands  of  the  receiver.  Ottensoser  v.  Scott, 
47  Fla.  276,  37  So.  161,  66:  346 
Losses;  assessments  for. 

For  Editorial  Notes,  see  infra,  IX.  §  1. 

78.  The  members  of  a  building  associa- 
tion, both  borrowers  and  nonborrowers, 
must  assist  in  bearing  its  losses.  Evers- 
mann  v.  Schmitt,  53  Ohio  St.  174,  41  N.  E. 
139.  29:  184 

79.  A  borrowing  member  of  a  building  as- 
sociation whose  mortgage  stipulates  for  the 
payment  of  such  "assessments"  as  may  be 
levied  on  him  as  a  member  is  liable  for  a 
pro  rata  assessment  on  the  members,  made 
by  a  receiver  in  insolvency  of  the  associa- 
tion. Id. 


BUILDING  AND  LOAN  ASSOCIATIONS,  VIIL  IX. 


323^ 


80.  An  assessment  on  stock  in  a  building 
and  loan  association,  for  the  purpose  of 
covering  losses  and  equalizing  the  members, 
so  that  they  may  all  go  out  at  the  final 
close  on  an  equal  footing,  is  within  the 
liabilities  of  a  member  upon  a  note  and 
mortgage  which  include  a  provision  for  the 
payment,  not  only  of  instalments  of  dues, 
but  of  any  fees  or  assessments.  Wohlford 
V.  Citizens'  Bldg.  L.  &  Sav.  Asso.  140  Ind. 
662,  40  N.  E.  694,  29:  177 

81.  An  assessment  to  cover  losses  and 
equalize  members  is  properly  made  by  the 
board  of  directors  of  a  building  and  loan 
association  instead  of  by  the  association  as 
a  whole,  under  a  statutory  provision  that 
the  business  of  the  association  shall  be 
managed  by  a  board  of  directors.  Id. 

82.  A  formal  acceptance  in  writing  of 
the  provisions  of  Ind.  1885,  wh^ich  ex- 
pressly grants  to  building  and  loan  asso- 
ciations power  to  make  assessments  or  stock 
calls  to  cover  losses,  is  not  necessary  in 
order  that  such  an  association  may  exercise 
the  enlarged  powers  granted  by  that  stat- 
ute, including  the  power  to  make  an  assess,- 
ment  to  cover  losses  and  thereby  equalize 
members,  so  that  all  at  the  close  may  go 
out  on  an  equal  footing.  Id. 


Villi  Foreign  Associations. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

163. 
Unconstitutional  Discrimination  against,  see 

Constitutional  Law,  404. 
Taxation  of,  see  Taxes,  68,  69. 

Appointing  attorney  to  accept  service. 

83.  A  building  and  loan  association  is  not 
within  a  statute  requiring  foreign  banking 
concerns  to  appoint  an  attorney  to  ac- 
cept, and  upon  whom  lawful  service  may  be 
made  of,  process  necessary  to  give  jtirisdic- 
tion  of  the  corporation  to  the  state  courts. 
Pacific  States  Savings,  L.  &  Bldg.  Co.  v. 
Hill,  40  Or.  280,  67  Pac.  103,  56:163 
Securities  deposited  by. 

84.  Securities  deposited  by  a  foreign 
building  and  loan  association  "in  trust  for 
the  benefit  and  security  of  its  members  in 
this  state,"  in  order  to  obtain  the  right  to 
do  business  in  the  state  under  the  Wiscon- 
sin statute  (Sanb.  &  B.  Ann.  Stat.  §§  2014a, 
2014b),  will  be  sold  or  collected  in  case  of 
insolvency,  and  the  proceeds  applied  accord- 
ing to  the  trust,  and  the  residue  only  turned 
over  to  the  receiver  appointed  in  the  state 
of  incorporation.  Lewis  v.  American  Sav. 
&  L.  Asso.  98  Wis.  203,  73  N.  W.  793,  39:  559 

85.  Only  resident  shareholders  and  credit- 
ors are  entitled  to  participate  in  the  pro- 
ceeds of  securities  deposited  with  the  state 
treasurer  by  a  foreign  building  and  loan 
association  under  the  Wisconsin  statute 
(Sanb.  &  B.  Ann.  Stat.  §§  2014a,  2014b)  in 
order  to  obtain  the  right  to  do  business  in 
the  state.  Id. 

86.  The  compliance  by  a  foreign  building 
and  loan  association   with  the   laws  of  the 


state  which  created  it  need  not  be  investi- 
gated by  the  authorities  of  another  state  in 
which  it  deposits  securities  as  required  by 
statute  in  order  to  obtain,  a  license  to  do 
business  therein.  Id. 

Exemption  from  usury  statutes. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
56-59. 

87.  A  statute  giving  special  advantages 
to  building  and  loan  associations,  as  to  the 
rate  of  interest  they  may  receive  on  loans, 
will,  unless  a  contrary  intention  appears, 
be  confined  in  its  operation  to  domestic 
corporations.  Falls  v.  United  States  Sav. 
L.  &  B.  Co.  97  Ala.  417,  13  So.  25,        24:  174 

88.  The  exemption  of  a  building  associa- 
tion from  usury  by  the  Illinois  corporation 
act,  H  78  (Starr  &  C.  Stat.  p.  632),  does  not 
extend  to  an  association  incorporated  in 
another  state,  which  derives  its  fund  for 
loaning  from  the  issuitog  of  paid-up  stock, 
which  Illinois  associations  are  not  author- 
ized by  statute  to  issue.  Rhodes  v.  Missouri 
Sav.  &  L.  Co.  173  111.  621,  50  N.  E.  998, 

42:  93 

89.  A  foreign  building  and  loan  associa- 
tion which  localizes  its  business  in  a  state 
cannot  complain  of  a  provision  of  its  laws 
making  foreign  associations  subject  to  the 
usury  laws,  but  exempting  domestic  asso- 
citations  therefrom.  Shannon  v.  Georgia 
State  Bldg.  &  L.  Asso.  78  Miss.  955,  30  So. 
51,  57:  800 


IX.   Editorial   Notes. 

§  I.  Generally. 

Power  of  building  association  to  issue  ne- 
gotiable  paper.     43:  419. 
Power  to  borrow  money.     11:  847.* 
Conflict   of  laws   as   to  usury   in   contracts 

of.     62:  64.* 
How  far  loans  are  usurious.     18:  129. 
Right   to   apply   payments   made   on    stock 
in  a  building  and  loan  as- 
sociation upon  a  mortgage 
given   for  a   loan  by   the 
same  member.    29:  120. 
Associations  not  protected  by  law.    29: 

120. 
Payments  not  ipso  facto  a  reduction  of 

the   mortgage.     29:  121. 
Right  of  third  persons  to   require  the 

,  application.     29:  121. 
Associations  on   the  terminating  plan. 

29:  123. 
Rule  under  changed  conception  of  loan 

association.      29:  127. 
Right  to  a  credit  of  profits.    29:  129. 
Forfeiture.     29:  131. 
Insolvencv  or  abandonment  of  scheme. 

29:  132. 
Change  of  rules.    29:  134. 
Right  of  third  person  to  resist  applica- 
tion.    29:  134. 
Eff'ect  of  special  agreement.     29:  134. 
Liability  of   advanced   member   of  building 
and    loan    association    to 
assessment  for  losses.    29: 
177. 


324 


BUILDING  COMMITTEE— BUILDINGS. 


Decisions    proceeding    on    the    partner-  ] 
ship  theory.    29:  177. 

The    original    loan    association    theory. 
29:  178. 

Effect   of  rules  of  provisions  in  mort- 
gage.   29:  180. 

Change  of  rules.    29:  181. 

Liability   as  members   after  release   of 
mortgage.     29:  181. 

Statutory  provisions.   29:  181. 
Fixed  premiums  or  fixed  minimum  of  premi- 
ums in  building  and  loan 
associations.     35:  244. 

§  2.  Withdrawals. 

What  is  a  withdrawal.    35:  289. 

Right  to  withdraw.     35:  289. 

Status  of  withdrawing  member.    35:  290. 

Change  of  rules  affecting  withdrawal.     35: 

291. 
Notice  of  withdrawal.    35:  292. 
Terms   and   conditions   of  withdrawal.    35: 
292. 

In  general.    35:  29:i. 

Effect  of  losses  on  withdrawing  mem- 
bers.   35:  293. 

Interest  on  withdrawals.     35:  293. 

Applying  withdrawal  accounts  on  mort- 
gage.    35:  294. 

Arbitration  of  claims.     35 :  294. 
Pavment    of    withdrawals;     priorities.     35: 

294. 
Withdrawal    by    borrowing    members.      35: 
296. 

In  general.    35:  296. 

Effect  of  losses.    35:  296. 

Amount  to  be  paid.     35:  297. 
When  association  is  insolvent   or  is  being 

wound  up.    35:  298. 
Termination   of   liability    bv     withdrawals. 

35:  300. 
Orders  to   pay   withdrawals.     35:  300. 
Action  to  enforce  withdrawal.     35:  301. 
§  3.  Fines. 
Nature  and  validity.     35:  215. 

In  general.     35:  215. 

Power  to  impose.     35:  215. 

On  whom.     35:  216. 

For  what.     35:  216. 
Amount;   reasonableness.     35:  217. 
Construction    of    provisions    imposing.      35: 

218. 
Cumulative  and  successive  fines.     35:  219. 
Fines  on  fines.    35:  220. 
Interest  on  fines.     35:  220. 
Secured  by  mortgage.     85:  220. 
Enforcement.     35:  221. 
Payment;  crediting.    35:  221. 
Remission;    failure  to  enforce.     35:  222. 
When   fines  cease.     35:  222. 


BUILDING  COMMITTEE. 
Ratification  of  Act  of,  see  Corporations,  245. 

♦-•-♦ 

BUILDING  CONTRACT. 

ConstructioTi  oi,  sec  Contracts,  355,  358,  359. 


Effect  of  Destruction  of  Building  before 
Completion  of  Contract  see  Contracts, 
654,  690-694. 

Sufficiency  of  Performance  of,  see  Contracts, 
702,  703,  708-710. 

Certificate  of  Performance  of,  see  Contracts, 

rv.  d. 


BUILDING  PERMITS. 

Estoppel  by  Issuance  of,  see  Estoppel,  20. 

Mandamus  to  Compel  Issuance  of,  see  Man- 
damus, 152. 

Liability  of  City  for  Granting,  see  Munici- 
pal Corporations,  440. 

See  also  Buildings,  11-14. 


BUILDINGS. 


I.  Statutory   and   Municipal  Regulations. 

a.  In  General. 

b.  Fire  Escapes.- 
II.  Private    Rights. 

in.  Editorial  Notes. 

Requiring  Water  Closets  in,  see  Constitu- 
tional Law,  360. 

Prohibiting  Malicious  Erection  of,  see  Con- 
stitutional Law,  655. 

Effect  of  Destruction  of,  on  Contract  to  Re- 
pair, see  Contracts,  654. 

Right  to  Recover  on  Contract  for,  on  De- 
struction of,  before  Completion,  see 
Contracts,  690-694. 

Acceptance  of,  see  Contracts,  708-710. 

Measure  of  Damages  for  Injury  to  or  De- 
struction of,  see  Damages,  III.  k,  2. 

Easement  for,  see  Easements,  25,  60,  80,  96, 
97. 

Over  Passage  Way,  see  Easements,  81-83. 

Easement  of  Stairway,  see  Easements,  84. 

Injury  by  Electric  Wires  on,  see  Elec- 
tricity, 45-49,  77-81. 

Elevators  in,  see  Elevators,  II. 

As  Encroachment,  see  Encroachment. 

Presumption  and  Burden  of  Proof  as  to  Fall 
of,  see  Evidence,  209,  546,  547. 

Opinion  Evidence  as  to  What  is  a  Tenement, 
see  Evidence,   1371. 

Fireman  as  Licensee  in,  see  Fire  Depart- 
ment, 1,  2. 

Fixtures  in,  see  Fixtures. 

Encroachment  of,  on  Highway,  see  High- 
ways, 42,  114,  115,  125. 

Liability  for  Injuries  Caused  in  Moving 
Building  along  Highway,  see  High- 
ways, 291. 

Materials  for,  in  Highway,  see  Highways, 
111,  201,  302-305,  323,  and  also  infra, 
m.  §  1. 

Injury  Dy  Fall  of  Snow  from,  see  High- 
ways, 315,  329. 

Precaution  in  Erection  of,  see  Highways, 
334,  335. 

Homestead  in,  see  Homestead,  10-15,  32,  36. 

Homestead  in  Rooms  in,  see  Homestead,  35. 

Injunction  against,  see  Injunction.  122,  163, 
167.  379. 

Injunction  against  Erection  of,  see  Injunc- 
tion, 181-185. 


BUILDINGS,  I.  a. 


S25 


Proceeding  to  Compel  Removal  of,  see  At- 
torney General,  3. 

Injunction  against  Removal  of,  see  Injunc- 
tion, 72,   174,  500. 

Compelling  Removal  of,  see  Injunction,  43, 
45. 

Injunction  against  Destruction  of,  see  In- 
junction, 170. 

Enjoining  Publication  of  Secret  Information 
as  to,  see  Injunction,  125,  126. 

When  Separate  for  Insurance  Purposes,  see 
Insurance,  1331. 

Tenant's  Right  to  Remove,  see  Landlord  and 
Tenant,  116-122. 

Liability  of  Landlord  for  Injury  by  Defects 
in,  see  Landlord  and  Tenant,  III.  c. 

Lateral  Support  for,  see  Lateral  Support, 
IL;  in. 

License  to  Use  Stairway  on  Outside  of,  see 
License,  6.  » 

Removal  of,  by  Life  Tenant,  see  Life  Ten- 
ants, 25. 

Lien  on,  see  Mechanics'  Liens. 

Mortgage  of,  see  Mortgage,  32. 

Negligence  in  Fall  of,  see  Negligence,  77-87. 

Negligence  as  to  Condition  of,  see  Landlord 
and  Tenant,  IIL  c;  IV.  §§  17-22;  Negli- 
gence, I.  c;  Trial.  351.  and  also  infra, 
IIL  §  4. 

As  Nuisance,  see  Equity,  13;  Highways,  48, 
and  also  infra,  IIL  §  3. 

Liability  for  Breaking  into,  see  Officers,  210. 

Possession  as  Basis  of  Action  for  Destruc- 
tion of,  see  Parties,  20. 

On  Park  or  Square,  see  Parks  and  Squares, 
3-5. 

Party  Wall  for,  see  Party  Wall. 

Tax  on,  see  Taxes,  37. 

Loss  of,  by  Fire,  After  Contract  of  Sale, 
see  Vendor  and  Purchaser,  13,  14. 

As  to  Walls,  see  Walls;  Party  Walls. 


I.  Statutory  and  Municipal  Regulations. 
a.  In  General. 

Due  Process  in  Establishing  Building  Line, 
see  Constitutional  Law,  869. 

Restriction  of  Building  on  Boulevard,  see 
Eminent  Domain,  221. 

Estoppel  to  Repudiate  Conditions  in  Build- 
ing Regulation,  see  Estoppel,  268. 

Requirement  of  Roofed  Passage  Way  Dur- 
ing Construction  of,  see  Municipal  Cor- 
porations, 134. 

For  Editorial  Notes,  see  infra.  III.  §  3. 

1.  A  monument  consisting  of  a  statute 
upon  a  pedestal  is  not  a  "building"  within 
the  meaning  of  a  statute  prohibiting  the 
erection  of  buildings  on  a  public  square, 
which  is  to  remain  a  public  green  and  walk 
forever.  Re  Washington  Monument  Fund, 
1.54  Pa.  621,  26  Atl.  &47.  20:  323 

2.  The  full  market  value  of  the  property, 
and  not  the  value  above  encumbrances, 
should  be  taken  into  consideration  in  es- 
timating the  reasonableness  of  a  proposed 
outlay  to  which  a  property  owner  will  be 
subjected  in  complying  with  the  require- 
ments   of   a   statute    enacted    for    the    pro- 


motion of  the  public  health.  Tenement 
House  Department  v.  Moeschen,  179  N.  Y. 
325,  72  N.  E.  231.  70:  704 

Provision  as  to  insecurity  of  building. 

3.  An  ordinance  requiring  the  owner  of 
a  dangerous  or  insecure  wall  or  building  to 
make  it  safe  within  twelve  hours  after 
notice  does  not  apply  to  a  building  which  is 
safe  for  the  purpose  of  commerce  and  trade, 
but  falls  by  reason  of  the  large  quantities 
of  water  thrown  into  and  upon  it  in  ex- 
tinguishing a  fire,  while  it  is  stored  with 
stationery  by  a  tenant,  thus  putting  it  to 
an  extraordinary  strain.  Woodruff  v. 
Bowen,  136  Ind.  431,  34  N.  E.  1113,  22:  198 
'4.  An  ordinance  declaring  that  any  build- 
ing or  structure  of  any  kind  partially  ae- 
stroyed  by  fire,  which  shall  be  permitted  to 
remain  in  such  condition  after  notification 
to  remove,  repfiir  or  rebuild  it,  shall  consti- 
tute a  nuisance,  without  making  any  limita- 
tions with  regard  to  its  dangerous  character 
by  reason  of  its  weak  condition  or  location 
or  surroundings, — is  void.  Evansville  v. 
Miller,  146  Ind.  613,  45  N.  E.  1054,  38:  161 
Height. 
Compensation   for  Limiting,   see   Municipal 

Corporations,  58. 
See  also. Parks  and  Squares,  2;  Public  Mon- 
eys, 17. 

5.  An  information  in  equity  by  the  at- 
torney general  is  the  proper  form  of  pro- 
ceeding for  the  enforcement  of  jpublic  rights 
against  a  building  erected  above  the  height 
permitted  by  statute  in  front  of  a  public 
park.  Knowlton  v.  Williams,  174  Mass.  476, 
56  N.  E.  77,  47:314 

6.  A  statutory  remedy  for  enforcing  build- 
ing laws,  given  by  Mass.  Stat.  1894,  chap. 
257,  to  the  city  of  Boston,  does  not  exclude 
a  suit  by  the  attorney  general  to  enforce 
Mass.  Stat.  1898,  chap.  452,  prohibiting  the 
erection  of  buildings  adjacent  to  Copley 
square  above  a  certain  height,  and  requir- 
ing the  city  to  pay  damages  for  the  interest 
in  lands  thus  taken,  thus  giving  the  city  a 
pecuniary  interest  against  the  enforcement 
of  the  law.  .  Id. 

7.  An  approval  of  certain  sculptured  or- 
naments on  the  face  of  the  wall  on  two 
sides  of  a  building  above  the  lawful  height, 
made  by  park  commissioners  under  Mass. 
Stat.  1898,  chap.  452,  authorizing  them  to 
approve  sculptured  ornaments  extending 
above  the  permitted  height  of  the  building, 
does  not  relieve  the  building  from  the  pro- 
hibition of  the  statute,  when  its  solid  brick 
walls  extend  6  feet  above  the  limit,  and 
its  roof  is  at  the  top.  Id. 
Water  supply. 

Due  Process  as  to,  see  Constitutional  Law, 

867. 
Police  Power  as  to,  see  Constitutional  Law, 

1005. 

8.  One  place  of  water  supply  on  each 
floor  of  a  tenement  house,  fairly  accessible 
to  all  occupants  of  the  floor,  is  all  that  can 
usually  or  reasonably  be  required  for  health 
and  fire  protection,  and  therefore  all  that 
the  board  of  health  has  power  to  order  un- 
der N.  Y.  Laws  1887,  chap.  84,  amending  § 
663    of    the   New   York    city    consolidation 


32G 


BUILDINGS,  I.  b. 


act.     New    York   Health   Dept.   v.    Trinity 

Church,  145  N.  Y.  32,  39  N.  E.  833.       27:  710 

Water-closets. 

Police  Power  as  to,  see  Constitutional  Law, 

1002,  1003. 
Requirement  of,  as  a  Taking  of  Property, 

see  Eminent  Domain,  218. 

9.  An  act  providing  that  buildings  de- 
signed for  habitation  shall  have  sufficient 
water-closets  connected  with  the  public 
sewers,  and  imposing  a  penalty  ^  on  "any 
person  violating  any  provision"  of  it,  applies 
to  violations  which  continue  after  its  pas- 
sage, as  well  as  to  those  which  then  come 
into  existence.  Com.  v.  Roberts,  155  Mass. 
281,  29  N".  E.  522,  16:  400 

10.  A  water-closet-  within  the  meaning  of 
an  act  providing  that  every  building  de- 
signed for  habitation  shall  have  sufficient 
water-closets  connected  with  the  sewer  and 
shall  not  have  a  cess-pool  or  privy,  is  an 
arrangement  with  a  permanent  water  sup- 
ply which  can  be  used  systematically  and 
regularly  for  carrying  whatever  is  deposited 
therein  to  the  sewer,  and  does  not  include  a 
privy  vault  which,  although  connected  with 
the  sewer,  can  be  flushed  only  by  a  rain 
storm  or  from  a  hydrant.  Id. 
Building  permits. 

Estoppel  by  Issuance  of,  see  Estoppel,  20. 
Mandamus    to    Compel    Issuance    of,    see 

Mandamus,  152.    . 
I.,iability  of  City  for  Granting,  see  Municipal 

Corporations,  440. 

11.  An  ordinance  prohibiting  any  building 
or  addition  to  any  building  without  per- 
mission of  the  aldermen  is  void  because  it 
would  make  the  right  depend  on  their  arbi- 
trary decision,  subject  to  no  uniform  nile 
of  action.  State  v.  Tenant,  110  N.  C.  609, 
14  S.  E.  387,  15:  423 

12.  An  ordinance  making  the  right  of  the 
owner  of  property  to  improve  and  use  it  de- 
pendent upon  the  decision  of  a  city  building 
inspector  in  respect  to  a  permit,  from  which 
there  is  no  appeal  is  an  unconstitutional 
interference  with  the  rights  of  citizens. 
Sioux  Falls  v.  Kirby,  6  S.  D.  62,  60  N.  W. 
156;  25:  621 

13.  Charter  authority  to  make  regulations 
to  guard  against  construction  of  buildings 
so  as  to  be  unsafe  or  inflammable,  or  of- 
fensive or  deleterious  to  health,  or  danger- 
ous to  life,  limb,  or  property,  does  not  cover 
an  ordinance  authorizing  the  refusal  of  per- 
mits for  the  erection  of  buildings  unless 
they  are  to  conform  in  size,  general 
character,  and  appearance  to  those  previous- 
ly erected  in  the  same  locality,  and  to  be 
such  as  will  not  tend  to  depreciate  the  value 
of  surrounding  improved  or  unimproved 
property;  nor  does  the  grant  of  general 
police  power,  and  power  to  provide  for  the 
general  welfare,  authorize  such  ordinance. 
Bostock  V.  Sams,  95  Md.  400,  52  Atl.  665, 

59:  282 

14.  An  ordinance  providing  for  the  grant- 
ing of  building  permits  is  not  rendered  void 
in  toto  by  the  invalidity  of  a  provision  that 
no  permit  shall  be  granted  unless,  in  the 
judgment  of  the  proper  officers,  the  size, 
general    character,    or    appearance    of    the 


building  will  conform  to  the  general  char- 
acter of  the  buildings  previously  erected  in 
the  same  locality,  and  will  not  in  any  way 
tend  to  depreciate  the  value  of  surrounding 
property.  Id. 

Fireproof  shutters. 

Failure  to  Comply  with  Ordinance  as  to,  see 
Bailment,  28. 

15.  An  ordinance  which  requires  the  plac- 
ing of  fireproof  shutters  upon  the  windows 
of  brick  buildings  within  a  city  imposes  a 
duty  for  the  purpose  of  giving  to  the  gen- 
eral public  protection  against  fire,  which  the 
common  law  did  not  provide,  and  is  not 
intended  for  the  benefit  of  individuals  who 
may  be  injured  by  failure  to  comply  there- 
with. Frontier  Steam  Laundry  Co.  v.  Con- 
nolly (Neb.)  101  N.  W.  995,  68:  425 
Fire  limits. 

Estoppel   to   Tear   down   Wooden   Building 

within,  see  Estoppel,  20. 
Rebuilding  of  Wooden  Building  within,  see 

Injunction,  114. 
Joint    Action    to    Prevent    Rebuilding,    see 

Parties,  118. 
Liability  for  Failure  to  Enforce  Ordinance 

as  to,  see  Municipal  Corporations,  471. 

16.  An  ordinance  establishing  fire  limits 
within  which  wooden  buildings  cannot  be 
erected  is  authorized  by  a  city  charter  giv- 
ing the  city  power  to  make  regulations  for 
the  prevention  of  fire,  provided  such  means 
are  proper  or  necessary  to  the  accomplish- 
ment of  the  end  in  view.  Olympia  v. 
Mann,  1  Wash.  389,  25  Pac.  337,  12 :  150 

17.  The  reservation  by  a  city  council  to 
itself,  in  an  ordinance  establishing  fire  limits 
within  whioh  the  erection  of  wooden  build- 
ings^ is  prohibited,  of  the  right  to  grant 
special  permits  for  the  erection  of  such 
buildings  within  such  limits,  does  not  make 
the  ordinance  so  unreasonable  as  to  render 
it  void.  Id. 

18.  A  municipality  cannot,  without  ex- 
press authority,  absolutely  and  without  re- 
gard to  circumstances,  prohibit  the  making 
upon  any  wooden  building  within  designated 
limits,  of  repairs  to  the  amount  of  $300  or 
over.  Mount  Vernon  First  Nat.  Bank  v. 
Sarlls,  129  Ind.  201,  28  N.  E.  434,        13:  481 

19.  No  judicial  proceeding  is  necessary  to 
give  a  city  the  right  to  tear  down  a  wooden 
building  erected  in  violation  of  an  ordinance 
fixing  fire  limits.  Eichenlaub  v.  St.  Joseph, 
113  Mo.  395,  21  S.  W.  8,  18:  590 

20.  An  ordinance  prohibiting  wooden 
buildings  within  fire  limits,  which  is  enacted 
under  a  charter  which  allows  such  regula- 
tions to  be  made  only  by  ordinance,  cannot 
be  suspended  by  a  simple  resolution  of  the 
city  council,  which  is  not  presented  to  the 
mayor,  and  which  does  not  constitute  an  or- 
dinance; and  a  permit  given  in  accordance 
with  such  resolution  is  void.  Id. 

b.  Fire  Escapes. 

Delegation  of  Judicial  Power  as  to,  see  Con- 
stitutional Law,  241,  242. 

Repeal  of  Ordinance  as  to,  see  Municipal 
Corporations,  84. 

Title  of  Statute  as  to,  see  Statutes,  217. 


BUILDINGS,   I.  b. 


327 


Special  Legislation  as  to,  see  Statutes,  297. 
Construction  of  Statute  as  to,  see  Statutes, 

511. 
Question  for  Jury  as  to,  see  Trial,  94. 
For  Editorial  Notes,  see  infra,  ITT.  §  4. 

21.  The  second  storj'  of  a  buildinor  is  one 
of  "the  different  upper  stories"  within  the 
meaning  of  a  statute  requiring  fire  escapes, 
altho-ugh  it  is  made  applicable  only  to  build- 
ings "more  than  two  stories  high."  Rose  v. 
King,  49  Ohio  St.  213,  30  N.  E.  267,     15:  160 

22.  The  location  in  the  Ohio  Revised  Stat- 
.utes,  under  the  general  heading  "Municipal 

Corporations,"  of  provisions  of  a  statute 
as  to  convenient  exits  from  fche  upper  stories 
of  tenement  houses,  factories,  workshops, 
inns,  or  public  houses,  which  was  first  con- 
nected with  an  independent  statute,  does 
not  confine  the  effect  thereof  to  buildings 
within  municipal  corporations,',  although 
some  sections  of  the  act  provide  for  penal- 
ties to  be  recovered  by  municipal  officers,  as 
the  manifest  purpose  of  the  statute  is  the 
protection  of  life  and  limb,  for  the  benefit 
of  dwellers  in  such  buildings  wherever  lo- 
cated. Id. 
Liability  of  owner  generally. 
For  Editorial  Notes,  see  infra,  III.  §  4. 

23.  The  duty  to  provide  fire  escapes  for 
buildings  properly  constructed  and  peculiar- 
ly exposed  to  danger  of  fire  from  the  char- 
acter of  the  work  to  be  carried  on  therein 
did  not  exist  at  common  law.  Pauley  v. 
Steam  Gauge  &  L.  Co.  131  N.  Y.  90,  29  N.  E. 
999;  15:  194 

24.  Failure  of  the  owner  of  a  building  to 
comply  with  the  ordmance  as  to  fire  escapes, 
even  if  not  of  itself  the  ground  of  an  action 
by  a  person  injured  thereby,  is  at  least  a 
matter  to  be  considered  in  connection  with 
other  facts  and  circumstances,  on  the  ques- 
tion of  negligence.  Schmalzried  v.  White,  97 
Tenn.  36,  36  S.  W.  393,  32:  782 

25.  Action  by  the  municipal  authorities 
is  not  necessary  to  charge  the  owner  of  a 
building  with  liability  for  failure  to  provide 
fire  escapes,  under  a  statute  requiring 
buildings  to  be  equipped  with  them,  and 
directing  such  authorities  to  make,  annually, 
careful  inspection  of  the  safeguards  pro- 
vided, pass  upon  their  sufficiency,  and  notify 
the  owner  of  the  building  in  case  they  are 
insufficient,  and  imposing  a  penalty  on  him 
for  failure  to  comply  with  their  recom- 
mendations. Carrigan  v.  Stillwell,  97  Me. 
247,  54  Atl.  389,  61:  163 

26.  Notice  from  the  inspector  is  not  neces- 
sary to  charge  the  owner  of  a  building 
with  the  duty  of  placing  a  fire  escape  there- 
on, under  a  statute  providing  that  within 
three  months  after  the  |>assage  of  the  act 
all  buildings  of  certain  kinds  shall  be  pro- 
vided with  fire  escapes  although  one  sec- 
tion provides  that  any  person  "who  shall  be 
required"  to  place  fire  escapes  on  his  build- 
ing shall  obtain  a  permit,  such  requirement 
referring  to  the  duty  imposed  by  the  statute 
itself,  and  not  to  any  act  of  the  inspector. 
Arms  V.  Ayer,  192  lU.  601,  61  N.  E.  851, 

58:  277 

27.  A  civil  action  for  damages  may  lie  for 


the  owner's  neglect  of  "the  duty  .  .  . 
to  provide  a  convenient  exit  from  the  diflfer- 
ent  upper  stories"  of  a  tenement  house,  as 
provided  by  Ohio  Rev.  Stat.  §  2573,  although 
the  notice  by  the  mayor,  provided  for  by 
§  2574,  on  failure  to  comply  with  which  for 
sixty  days  the  owner  or  agent  shall  be  liable 
for  a  penalty,  and  "may  also  be  held  for 
civil  damages  to  the  party  injured,"  has  not 
been  given.  Rose  v.  King,  49  Ohio  St.  213, 
30  N.  E.  267,  15:  160 

28.  Compliance  with  the  terms  of  a  stat- 
ute requiring  fire  escapes,  by  providing  es- 
capes which  are  examined  and  approved  in 
number,  character,  and  location  by  the  pub- 
lic officer,  appointed  for  that  purpose,  re- 
lieves the  owner  of  the  building  from  any 
liability  for  failure  to  provide  further  es- 
capes. Pauley  v.  Steam-Gauge  &  L.  Co.  131 
N.  Y,  90,  29  N.  E.  999,  15 :  194 

29.  An  iron  ladder  constituting  a  fire 
escape  which  is  extended  from  the  upper 
story  of  a  building  to  the  roof  is  a  fit  and 
suitable  substitute  for  an  inside  ladder  and 
scuttle  required  by  statute.  Id. 
Liability  of  hotelkeeper. 

30.  Failure  to  construct  fire  escapes  on  a 
hotel  as  required  by  an  ordinance  does  not 
make  the  proprietor  liable  for  the  death  of 
a  guest  by  fire,  unless  that  was  caused  by 
the  lack  of  the  fire  escapes.  Weeks  v.  Mc- 
Nulty,  101  Tenn.  495,  48  S.  W.  809,    43:  185 

31.  Want  of  fire  escapes  is  not  shown  to 
be  the  cause  of  the  death  of  a/  guest  in  a 
hotel  by  fire,  where  it  is  not  shown  that  he 
was  at  a  window  or  in  any  position  where 
a  fire  escape  would  have  afforded  him  any 
benefit,  but  there  is  evidence  that  he  had 
locked  himself  in  his  room  and  tried  to 
break  the  door  to  make  his  escape,  and  also 
that  he  could  have  safely  escaped  by  leaping 
frojn  the  window  to  the  roof  of  an  adjoin- 
ing building.  Id. 
Liability  of  landlord. 

32.  Fire  escapes  need  not  be  provided  by 
a  landlord  for  the  safety  of  a  tenant,  or  for 
anyone  on  the  premises  by  the  latter's  invi- 
tation or  permission,  unless  this  is  required 
by  statute  or  ordinance.  Schmalzried  v. 
White,  97  Tenn.  36,  36  S.  W.  393,         32:  782 

33.  The  owner  of  a  building  required  by 
statute  to  be  provided  with  fire  escapes  is 
not  relieved  from  liability  for  their  absence 
by  the  fact  that  the  building  was  in  pos- 
session of  a  tenant  where  the  statute  re- 
quires notice  to  be  given  to  him  in  case 
they  are  found  to  be  unsafe,  and  imposes  a 
penalty  upon  him  for  neglect  to  comply  with 
recommendations  in  regard  to  them.  Carri- 
gan V.  Stillwell,  97  Me.  247,  54  Atl.  389, 

61 :  163 

34.  A  four-story  building  occupied  by 
three  families  living  in  separate  apartments 
on  the  second  floor,  and  by  two  families 
living  in  separate  apartments  on  the  third 
floor,  numbering  in  all  sixteen  persons,  all 
tenants  of  one  owner,  is  a  "tenement 
house"  within  the  meaning  of  Ohio  Rev. 
Stat.  §  2573,  requiring  convenient  exits  from 
the  upper  stories.  Rose  v.  King,  49  Ohio  St. 
213,  30  N.  E.  267,  15:  160 


328 


BUILDINGS,  II.  III. 


Liability  of  master. 

Sufficiency  of  Proof  of  Master's  Negligence, 
see  Evidence,  224S. 

35.  Operatives  injured  by  the  omission  of 
the  owner  of  a  building  to  provide  fire  es- 
capes as  required  by  the  New  York  act  of 
1887  are  entitled  to  recover  from  him  the 
damages  occasioned  thereby.  Pauley  v. 
Steam-Gauge  &  L.  Co.  131  N.  Y.  90,  29 
N.  E.  999,  15:  194 

36.  The  existence  of  a  chute  leading  into 
the  basement  of  a  building,  almost  under 
the  lo-wer  end  of  a  fire  escape,  so  as  to 
create  danger  that  persons  using  the  fire 
escape  may  fall  into  the  basement,  will  not 
charge  the  owner  of  the  building,  on  the 
ground  of  negligence,  with  liability  for  the 
death  of  an  employee  by  fire,  which  was  not 
in  any  respect  caused  by  such  chute.        Id. 

37.  A  building  having  above  the  first  floor 
a  restaurant  kitchen  containing  three  em- 
ployees is  not  within  the  meaning  of  a  stat- 
ute requiring  "fire  escapes  upon  buildings 
in  which  any  trade,  manufacture,  or  busi- 
ness is  carried  on"  requiring  the  presence 
of  workmen  above  the  first  floor.  Carrigan 
v.  Stillwell,  99  Me.  434,  59  Atl.  683,   68:  386 

38.  It  is  not  negligence  for  a  master  to 
fasten  windows  leading  to  fire  escapes,  if 
this  does  not  violate  any  statute  and  the 
windows  can  be  easily  broken  through  to 
reach  the  fire  escapes  if  there  is  not  time 
to  unfasten  them.  Huda  v.  American  Glu- 
cose Co.     154  N.  Y.  474,  48  N.  E.  897, 

40:  411 

39.  Screwing  down  the  windows  of  a  fac- 
tory so  that  there  is  no  access  to  fire  es- 
capes except  by  breaking  the  windows,  and 
forbidding  employees  to  open  the  win- 
dows, in  order  to  preserve  a  high  temper- 
ature, which  is  necessary  for  the  business, 
do  not  violate  a  statute  requiring  the  con- 
struction and  maintenance  of  fire  escapes  on 
such  buildings  where  the  windows  are  so 
light  in  frame  as  to  off'er  but  the  slighest 
difficulty  in  breaking  through,  if  there  is  not 
time  to  unscrew  them.  Id. 


TI.    Private    Rights. 

Equitable  Relief  in  Case  of  Building  Wrong- 
fully Erected  on  Another's  Land,  see 
Equity,  95. 

40.  The  fact  that  a  building  has  stood  for 
ten  years  without  falling  is  not  sufficient  to 
disjyrove  that  it  was  negligently  construct- 
ed. Waterhouse  v.  Joseph  Schlitz  Brew. 
Co.  12  S.  D.  397,  81  N.  W.  725,  48:  1.57 

41.  Ordinary  care  is  not  the  full  measure 
of  the  duty  of  one  who  arranges  a  roof  and 
gutter  in  such  a  way  that  the  first  will  col- 
lect water  and  the  second  discharge  it 
through  an  aperture  upon  a  neighbor's  land. 
Fitzpatrick  v.  Welch,  174  Mass.  486,  55 
N.  E.   178.  48:  278 

42.  When  a  building  threatens  ruin,  the 
neighbor  has  a  right  of  action  against  the 
owner,  imder  the  Louisiana  Code,  to  compel 
him  to  cause  such  a  building  to  be  deniol- 
iehed   or   propped   up.     Tn   the   meantime,  if 


there  be  danger  of  any  damage  by  its  fall, 
he  may  be  authorized  to  make  the  necessary 
works,  for  which  he  shall  be  reimbursed 
after  the  danger  sihall  have  been  ascertained. 
Factors  &  T.  Ins.  Co.  v.  Werlein,  42  La. 
Ann.  1046,  8  So.  435,  11:  361 

Grant  of  rooms  in  building. 

43.  Grants  of  rooms  or  apartments  in  a 
building,  like  leases  of  the  same,  must  be 
construed  according  to  the  intention  of  the 
parties  and  with  reference  to  the  subject- 
matter  upon  which  they  operate.  Hahn  v. 
Baker  Lodge  No.  47,  A.  F.  &  A.  M.  21  Or. 
30,  27  Pac.  166,  13:  158* 

44.  A  conveyance  of  the  middle  room  of 
the  upper  story  of  a  building,  with  an  ease- 
ment of  ingress  and  egress,  does  not  grant 
any  part  of  the  building,  or  any  interest 
which  will  continue  after  a  fire  has  de- 
stroyed the  greater  part  of  the  building, 
and  the  identity  of  the  room  and  its  ex- 
istence as  such  have  been  extinguished.  Id. 
Malicious  erection  of  building. 

45.  Structures  intended  to  spite,  injure, 
or  annoy  an  adjoining  proprietor,  within 
the  meaning  of  Ballinger's  (Wash.)  Anno. 
Codes  &  Stat.  §  5433  (2  Hill's  Anno.  Stat. 
&  Codes,  §  268),  providing  that  an  injunc- 
tion may  be  granted  to  restrain  the  mali- 
cious erection  of  such  a  structure  or  to  com- 
pel its  removal,  do  not  include  a  structure 
which  really  enhances  the  value,  usefulness, 
or  enjoyment  of  land,  but  include  only  such 
as  serve  no  really  useful  and  reasonable 
purpose.  Karasek  v.  Peier,  22  Wash.  419, 
61  Pac.  33,  .50:  345 
Restrictions. 

In  Covenant,  see  Covenant,  28-41,  47,  56,  57, 
63-65,  114. 

In  Dedication,  see  Dedication,  24. 

Against  Obstructing  View  by,  see  Ease- 
ments, 56,  57. 

Parol   Evidence  as  to,  see  Evidence,   1140. 

Injunction  against  Violation  of,  see  Injunc- 
tion, 379. 

Creation  of  Conditional  Fee  by,  see  Real 
Property,  34. 

46.  A  restriction  against  the  erection  of 
buildings  upon  land  dedicated  as  a  park  is 
not  removed  by  the  change  of  the  use  of  the 
buildings  abutting  thereon  from  residence 
to  business  purposes.  Chicago  v.  Ward,  169 
111.  392,  48  N.  E.  927,  38:  849 

47.  The  submergence  of  lands  dedicated 
as  a  public  park  with  the  express  condition 
that  no  buildings  shall  be  erected  thereon, 
as  the  result  of  heavy  storms,  and  the 
subsequent  reclamation  by  the  city  of  such 
land,  does  not  destroy  the  restrictions.     Id. 


m.  Editorial  Notes. 

Lateral  Support  for,   see   Lateral    Support, 
III. 

§  I.  Generally. 

Covenants  with  respect  to.     3:  580.* 

Injury   to.  by  blasting.     17:220. 

Covenant  against.     3:  579.* 

Erected  on  another's  land.     10:  723.' 


BULKHEAD— BURGLARY. 


830 


Mechanic's  lien  upon  buildings  distinct  from 
land.     62:  369. 
As  to  Mechanics'  Liens,  Generally,  see 
Mechanics'    and    Laborers' 
Liens,  IX. 
EflFeot  of  sale  of  part  of  building.     13:  158.* 
■Prescriptive  right  to  maintain.     53:  901. 
Placing    building    material    in    street.     14: 

560;   19:  643. 
Negligence    as    to    electric   wires    on   or   in 

buildings.     32:400. 
Building    materials    not    actually    attached 

as  fixtures.     69:  898. 
§  2.  Destruction  of. 

Liability  of  city  for  destroying  buildings  to 
stop  spread   of   fire.       19: 
197. 
Liability  for  destruction  of,  as  a  nuisance. 

19:  198. 

Limit  of  power  of  municipality  h>  destroy 

building    as     a     nuisance. 

38:  166. 

§  3.  Control   over;    regulations   concerning; 

nuisance. 
Constitutionality  of  police  regulations  con- 
cerning.    16:  400. 
Municipal    control    over    erection    of   build- 
ings.    12:  150;*  13:  481.* 
Delegation  of  municipal  power  as  to.     20: 

725. 
Municipal    power    over    buildings    as    nui- 
sances.    38:  161. 
Municipal    power    over    buildings    as    nui- 
sances in   street.     39:  662. 
Injmiotion    by     municipality     against    nui- 
sance of.    41 :  328 ;  42 :  822. 
§  4.  Duty  and  liability  in  respect  of  condi- 
tion of. 
As  to  Negligence  with  Respect  to  Premises, 
Generally   see  Negligence, 
in.  §  7. 
As  to  Liability  with  Respect  to  Condition  of 
Leased  Premises,  General- 
ly, see  Landlord  and  Ten- 
ant, rv.  §§  17-22. 
Duty  of  owner  of  building  to  keep  it  in  safe 

condition.     11:361.* 
Duty  as  to  fire  escapes  on.     15:  160. 
Individual    liability    for    falling    walls    or 
buildings.      11:361;*     34: 
557. 
Liability  of  owner  or  occupier.    34:  557. 
Building    in    possession    of    contractor. 

34:  558. 
Liability  for  injury  to  person  in  street. 

34:  559. 
Liability  for  injury  to  person  on  adjoin- 
ing property.     34:  560. 
Liability  for  injury  to  gerson  on  prop- 
erty.    34:  561. 
Neglect  to  comply   with   covenants   in 

lease.     34:  562. 
Illegal  building.     34:  562. 
Liability  of  firemen.    34:  562. 
Act  of  third  person.     34:  563. 
Vis  major.     34:  563. 
Fire.     34:  563. 

Contributory  negligence.     34:  563. 
Liability  of  county  for  injury  to  real  prop- 
erty on  account  of  condi- 
tion of  buildings.     39:  70. 


BULKHEAD. 

Maintenance  of,  in  Canal,  see  Canal,  10,  11. 
Limitation  of  Action  for  Injury  by  Erec- 
tion of,  see  Limitation  of  Actions,  142. 


BULL. 

Warranty  of,  see  Sale,  87. 


BUNCO  STEERING. 

Indictment  for,  see  Indictment,  etc.,  65. 

#  >  » 

BURDEN  OF  PROOF. 

In  General,  see  Evidence,  II. 
Instruction  as  to,  see  Trial,  697-704. 


BURGLARY. 


Attempt  to  Commit,  see  Criminal  Law,  37. 
Efi'ect  of  Instigation  or  Consent  on  Criminal 

Responsibility    see    Criminal    Law,    62, 
^  63,   65-67. 
Evidence  of  Other  Burglaries,  see  Evidence, 

2012. 
Sufficiency  of  Proof  of  Intent,  see  Evidence, 

2288. 
Proof  of  Homicide  in  Attempt  to  Commit, 

see  Evidence,  2379-2381. 
Killing  of  Burglar,  see  Homicide,  14. 
Indictment  for,  see  Indictment,  etc.,  130. 
Question  for  Jury  as  to,  see  Trial,  78. 
Instruction  as  to,  see  Trial,  680. 
Sufficiency  of  Verdict,  see  Trial,  923. 

1.  A  servant  having  a  right  to  lodge  in 
his  master's  house  is  guilty  of  burglary 
if  he  opens  a  closed  door  or  raises  a  sash 
and  enters  the  building,  not  for  the  purpose 
of  using  the  house  as  a  lodging  place,  but 
with  intent  to  steal  his  master's  goods. 
State  V.  Howard,  64  S.  C.  344,  42  S.  E.  173, 

58:  685 

2.  Raising  a  window  partly  open  so  as  to 
create  an  aperture  sufficient  to  admit  of  en- 
trance into  a  building,  which  is  subsequently 
effected  through  the  opening,  is  a  sufficient 
breaking  to  come  within  the  statute  defining 
burglary  as  the  "breaking  and  entering  into 
a  mansion  house  by  night  with  intent  to 
commit  a  felony."  Claiborne  v.  State.  113 
Tenn.  261,  83  S.  W.  352,  68:  859 

3.  A  burglarious  entry  into  a  granary 
was  made  by  boring  holes  into  it  from  the 
outside  with  an  auger,  though  the  burglar 
did  not  and  could  not  get  into  the  building, 
when  the  auger  was  used  not  only  for  the 
purpose  of  breaking  into  the  building,  but 
also  for  the  purpose  of  committing  a  felony, 
which  was  accomplished  by  the  removal  of 
grain  from  the  granary  through  the  holes 
bored    therein,   by   the   aid    of   gravitation. 


330 


BURIAL— BUTTER. 


which  forced  grain  out  through  the  aper- 
ture. State  V.  Crawford,  8  N.  D.  539, 
80  N.  W.  193,  46:  312 

4.  Burglary  may  be  committed  by  the 
owner  of  a  horse  in  feloniously  breaking 
and  entering  a  livery  stable  where  it  is 
kept,  for  the  purpose  of  removing  it  and 
depriving  the  stable  keeper  of  his  lien  upon 
it  for  food  and  care.  State  v.  Nelson,  36 
Wash.  126,  78  Pac.  790,  68:  283 

Editorial  Notes. 

Instigation   to   commit.     25:  342. 

What  intoxication  will  excuse.     36:  470. 

Criminal  liability  for  agent's  act  in.  41: 
652. 

Criminal  liability  of  children  for.     36:  201. 

Homicide  in  attempting  to  prevent.   69:  534. 

Proof  of  corpus  delicti  in.     68:  41. 

Necessity  of  instruction  as  to  law  on  cir- 
cumstantial evidence  on 
nrosecution  for.  69:  197, 
207. 

Cruel  and  unusual  punishment  for.     35:  570. 

Evidence  of  other  crimes  in  prosecution  for. 
62:  236,  285,  317,  324. 


BURIAL. 

^Ex^inplary  Damages  for  Interference  with 

Right  of,  see  Damages,  30. 
Expense  of,  see  Funeral  Expenses. 
Within   City   Limits,   Ordinance   as   to,   see 

Municipal  Corporations,  203-210. 
Parties    to    Action    for    Interference    with 

Right  of,  see  Parties,  149. 
See  also  Cemeteries;   Corpse. 

Editorial  Notes. 

Rights   and   duties   in   regard   to;    right   to 

control       disposition       of 

body.     14:85. 
Liability    for   disinterment   of   dead   bodies. 

42:  721. 
Prescriptive  right  with  respect  to  burial  of 

dead.     53:  895. 
Character  ot  estate  or  property  of  owner  in 

burial  lot.     67:  118. 
Power  of  coroner  to  order  a  post  mortem 

examination.     31:  540. 
Municipal  regulation  of  burial,  as  nuisance. 

38:  327. 


♦  >» 


BURIAL  GROUND. 

See  Cemeteries. 


BURIAL   LOT. 


Adverse  Possession  of,  see  Adverse  Posses- 
sion, 24.  29.  (56. 

Rights  in,  see  Cemeteries.  4-7. 

Executor  Setting  Apart  Separate  Fund  for, 
see  Trusts.  184. 


BURIAL  PERMIT. 

See  Corpse,  1. 

#  >  » 

BURSTING. 

Of    Hogshead    During    Transportation,    see 

Carriers,  776. 
See   also  Explosions   and   Explosives. 


BUSINESS. 


Right  of  Action  for  Injuries  to,  see  Case, 

16-20. 
Equal  Protection  and  Privileges  in  Regula- 
tion of,  see  Constitutional  Law,  II.  a,  6. 
Due  Process  of  Law  in  Regulation  of,  see 

Constitutional  Law,  II.  b,  4. 
Police  Power  Over,  see  Constitutional  Law, 

IL  c,  4. 
Validity  of  Agreement  to  Refrain  from,  see 

Contracts,  III.  e,  2. 
Right  of  Foreign  Corporation  to  Engage  in, 

see  Corporations,  VIL  b. 
Damages  for  Injury  to,  see  Damages,  453, 

471,  618;  Eminent  Domain,  318,  319. 
As  Property,  see  Eminent  Domain,  196. 
Charges  Injurious  to,  sm  Libel  and  Slander, 

n.  c. 
What  Constitutes,  see  License,  Si- 
Editorial  Notes. 

What  constitutes.     14:  530. 

Constitutionality  of  restrictions  on.  21 :  789. 

Legal  restriction  on  department  stores.  48: 
261. 

Liability  for  damage  to  business  by  injur- 
ing tangible  property  of 
other  party.    64:  94. 

Appropriations  of  public  funds  for  business 
enterprise.     14:  478. 

Constitutionality  of  statute  attempting  to 
grant  a  monopoly.  53: 
763. 

Injunction  against  unfair  competition  in. 
3:  771.* 

Tax  on.     9:  787.* 


BUST. 

Injunction  against  Making,  see  Injunctions, 
66,  67. 

Making,  as  Invasion  of  Privacy,  see  Pri- 
vacy, 5. 


BUTCHERS. 

Sale  of  Meat  on  Sunday,  see  Sunday,  16. 


BUTTER. 

Creation    of   Monopoly   in,    see   Conspiracj, 
1.36. 


i 


BUZZ  SAW— CAMP  MEETING  ASSOCIATIONS. 


881 


BUZZ  SAW. 

Injury  to  Insured  by  Use  of,  see  Insurance, 
1061,  1062. 


BY-LAWS. 

« 

Of  Association,  see  Associations;  Benevo- 
lent Societies,  III.;  Conspiracy,  53-56, 
155,  156;  Courts,  219;  Injunction,  230, 
233;    Partnership,    146. 

Of  Bank,  see  Banks,  14,  350-360,  369-374; 
Evidence,  101. 

Of  Benefit  Society,  see  Benevolent  Societies, 

m. 

Of  Building  and  Loan  Association,  see 
Building  and  Loan  Associations,  2,  20, 
21,   54. 

Of  Corporation,  see  Corporations^  100,  132, 
214,  216,  217,  223,  254,  359-361,  392, 
401,  414,  430,  431,  437,  438,  465,  543, 
565,  588,  592,  644,  645,  650,  661,  665, 
743,  744;  Notice,  19;  Mandamus,  85; 
Pleading,  613;  Principal  and  Agent,  10; 
Public  Moneys,  32;  Statutes,  566. 

Of  Exchange,  or  Board  of  Trade,  see  Con- 
tracts, 543;  Exchanges,  6-8;  Estoppel, 
138. 

Of  Board  of  Health,  see  Constitutional  Law, 
214. 

Of  Insurance  Company,  see  Insurance,  27, 
189-199,  321,  622-626,  629,  677,  821, 
926,  927,  978,  1134,  1181,  1228,  1229, 
1232,  1306. 


Of  Press  Association,  see  Newspaper,  5; 
Press  Associations,  2. 

Of  Railroad  Relief  A^ssociation,  see  Con- 
tracts, 468. 

Of  Regents,  see  Schools,  50. 

Of  Village,  see  Mandamus,  25. 

Of  Water  Company,  see  Waters,  540. 

As  Synonymous  with  Ordinances,  see  Mu- 
nicipal Cornorations,  73a. 

Question  for  Jury  as  to,  see  Trial,  142. 

Editorial  Notes. 

Defined.  3:261.* 

To  compel  acceptance  of  oflSce.  24:  492. 

Of  savings  bank  as  attecting  liability  for 
payments  to  fraudulent 
claimants.     69:  318. 

Effect  of  corporate  by-laws  as  notice.  26: 
48. 

Whether  tihird  party  dealing  with  agents  of 
private  corporation  charge- 
able with  knowledge  of. 
10:  355.* 

Restricting  transfer  of  stock.    27:  271. 

Effect  of,  on  contract  of  corporation.  1: 
482.* 

Mandamus  to  enforce  by-laws  of  corpora- 
tion.    32:  575.* 

Regulation  by  by-laws  of  elections  by  pri- 
vate corporations.    18:582. 

Rights  of  members  of  benefit  society  as  af- 
fected by  by-laws.     5:  96.* 

Conflict  between  by-laws  and  certificate^  ol 
policy,  of  mutual  benefit 
society  or  insurance  com- 
pany.   47:  681. 


o 


CABLE. 

Liability  for  Injury  by  see  Negligence,  125. 
For   Ferry,   Obstruction   of  Navigation   by, 
see    Waters.    163. 


CABLE   ROADS. 


In  General,  see  Street  Railways,  7,  79. 

Injury  to  Passenger,  see  Carriers,  263,  295, 
311,   507. 

Who  are  Fellow  Servants  on,  see  Master 
and  Servant,  598. 

Negligence  in  Operation  of,  see  Street  Rail- 
ways, 91,  101,  111,  114,  123,  134. 

Contributory  Negligence  of  Person  Injured 
by  Car,'  see  Street  Railways,  168. 

Question  for  Jury  as  to  Negligence,  see 
Trial,  370. 


CABMAN. 

Carrier's  Liability  for  Injury  to  Passenger 
by,   see   Carriers,    128. 


CABS. 


See  Hacks. 


CALENDAR. 


Short    Cause    Calendar,    see    Short    Cause 
Calendar. 


CALENDAR  MONTH. 

See  Time,  3,  9. 


CALLS. 

For  Boundary,  see  Boundaries,  11. 

On   Stock,   see   Corporations,   565,   586-593. 

Of  Pastor,  see  Religious  Societies,  48-50. 


CAMP  MEETING  ASSOCIATIONS. 

Imposition  of  Revenue  Tax  by,  see  Asso- 
ciations, 5. 


332 


CANALS. 


1.  Streets  shown  on  the  plan  of  the  park 
of  an  association  organized  to  maintain  a 
camp  meeting  and  lease  lots  to  persons  de- 
siring the  advantages  of  the  ground  are 
dedicated  to  the  use  of  the  lessees  and  those, 
at  their  request,  using  them  for  access  to 
their  lots,  so  that  the  association  cannot 
prevent  such  use.  Thousand  Island  Park 
Asso.  V.  Tucker,  173  N.  Y.  203,  65  X.  E. 
975,  60:  786 

2.  Exclusive  rights  are  not  given  by  a 
statute  merely  authorizing  an  association 
organized  to  maintain  a  camp  meeting  to 
purchase  and  deal  in  provisions  and  other 
commodities  for  supplying  the  needs  of  lot 
lessees  and  visitors,  and  to  maintain  stores 
and  shops  for  that  purpose,  and  to  anthor- 
ize  others  to  engage  in  such  pursuits,  and 
to  make  and  establish  regulations  therefor. 

Id. 

3.  Power  to  prohibit  hawking  and  ped- 
dling within  a  camp-meeting  ground  does 
not  authorize  the  prohibition  of  the  de- 
livery therein  of  produce  ordered  by  mail 
by  lot  lessees,  although  the  price  is  noit 
fixed  until  the  goods  are  delivered.  Id. 

4.  Power  to  adopt  a  regulation  requiring 
lessees  of  lots  to  purchase  all  supplies  from 
the  lessor  is  not  reserved  to  an  association 
organized  for  the  maintenance  of  a  camp 
meeting  by  a  provision  in  the  leases  that 
the  lessee  shall  keep  and  perform  all  such 
conditions  or  rules  as  the  lessor  shall  from 
time  to  time  impose,  since  such  require- 
ment is  not  reasonable.  Id. 


CANALS. 

Adverse  Possession  of  Canal  Lands,  see  Ad- 
verse Possession,  I.  h. 

Police  Power  to  Regulate,  see  Constitutional 
Law,  1004. 

Forfeiture    of    Franchise    of    Company,    see 
Corporations,  753. 

Measure  of  Damages  in  Condemning  Right 
of  Way  for,  see  Damages,  448,  452. 

Dedication  of  Highway  Over,  see  Dedica- 
tion,  9. 

Condemnation  for,  see  Eminent  Domain,  136, 
137,  163. 

Presumption  of  Grant  for  Bridge  Over,  see 
Evidence,   722. 

License  for  Bridge  Over,  see  License,  21. 

I.evy  on  Property  of,  see  Levy  and  Seizure, 
27. 

.\>Mimption  of  Risk,  in  Deepening  of,  see 
Master  and   Servant,  354. 

I 'el  low  Servants  in  Deepening  of,  see  Mas- 
ter and  Servant,  546. 

Notice  of  Rights  in,  see  Notice,   90. 

state  as  Party  to  Action  Concerning,  see 
Parties,  134. 

Tax  on  Land  Covered  by,  see  Taxes,  97,  98. 

nights  on  Opening  for  Dockage,  see  Waters, 
30. 

I"  1  Irrigation  or  Drainage,  see  Estoppel, 
201;  Waters,  285,  309.  320,  324,  .349 
47.3-479. 


Liability  of  state  as  to. 

See  also  infra,  Editorial  Notes. 

1.  The  state  of  New  York  is  liable  to  a 
town  for  damages  to  a  highway  from  a 
break  in  the  Erie  canal  caused  by  the  neg- 
ligence of  the  canal  officials.  Bidelman  v. 
State,  110  N.  Y.  232,  18  N.  E.  115,  1:  258 
Lien  of  state  on. 

2.  A  waiver  by  the  state  of  its  priority 
in  favor  of  certain  liens  on  a  canal,  created 
and  authorized  by  statute,  does  not  operate 
to  defeat  the  priority  of  the  state  as  to 
other  claims  against  the  canal  company. 
Brady  v.  Johnson,  75  Md.  445,  26  Atl.  49, 

20:  737 
Title  of  person  in  possession. 

3.  The  title  of  one  in  possession  of  a 
right  of  way  for  a  canal  will,  in  the  ab- 
sence of  evidence  showing  how  the  right 
was  acquired,  or  its  extent,  be  presumed  to 
be  a  mere  easement  limited  to  the  extent 
to  which  it  has  been  used.  Mullen  v.  Lake 
Drummond  Canal  &  W.  Co.  130  N.  C.  496, 
41  S.  E.  1027,  61 :  833 
Right  to  surplus  waters  of. 
Enforcement  of  Judgment  as  to,  see  Judg- 
ment, 394. 

^4.  The  use  by  right  of  the  surplus  waters 
of  a  canal,  continued  after  the  state  en- 
larges the  canal,  cannot  ripen  into  a  right 
to  the  increased  surplus  thereby  caused,  no 
matter  how  long  the  use  continues.  Water- 
loo Woolen  Mfg.  Co.  v.  Shanahan,  128  N.  Y. 
345,  28  N.  E.  358,  14:  481 

5.  If  any  right  could  be  acquired  in  the 
increased  surplus  of  water  caused  by  the 
state's  enlargement  of  a  canal,  it  could  not 
prevent  the  state  from  otherwise  improving 
navigatioai  whereby  the  surplus  would  be 
reduced  to  the  original  amount.  The  rem- 
edy, if  any,  would  be  a  claim  in  the  dam- 
ages. Id. 
Right  to  divert  water  to. 

6.  A  canal  company  cannot  divert  water 
into  its  canal,  and  permit  it  to  injure  ad- 
joining proprietors  by  soaking  through  the 
embankments.  Mullen  v.  Lake  Drummond 
Canal  &  W.  Co.  130  N.  C.  496,  41  S.  E. 
1027,  61:833 
Regulating  diversion  of  water  from  feeder. 
Practical    Construction    of    Contract    as    to 

Diversion,  see  Contracts,  351. 
Enforcement  of  Judgment  as  to,  see  Judg- 
ment, 394. 

7.  Canal  commissioners  Avho  have  con- 
tracted to  permit  a  riparian  owner  to  take 
water  from  its  feeder  in  consideration  of 
the  right  to  take  the  water  of  the  river  to 
supply  their  canal,  will  not  be  permitted  to 
place  weirs  intended  to  restrict  him  to  the 
quantity  to  which  he  is  entitled,  in  such  a 
manner  as  to  deprive  him  of  a  portion  of 
the  water  to  which  he  is  entitled  under  his 
contract.  Merrifield  v.  Canal  Commission- 
ers, 212  III.  456,  72  N.  E.  405,  587,       67 :  369 

8.  Under  a  contract  giving  the  right  to 
withdraw  a  certain  quantity  of  water  from 
a  canal  feeder,  with  the  proviso  that  the 
water  shall  not  be  drawn  so  that  "during 
the  season  of  navigation"  the  water  in  the 
canal  shall  be  reduced  to  less  than  a  speci- 
fied depth,  the  canal  coinmissioners  have  no 


CANCELATION  OF  INSTRUMENTS;  CANDIDATES. 


888 


right  to  place  weirs  in  the  flumes  by  which 
the  water  is  taken  from  the  feeder,  so  as 
to  maintain  the  water  in  the  feeder,  at  all 
times,  of  a  depth  requisite  to  maintain  the 
specified  depth  in  the  canal,  even  after  the 
close  of  navigation,  and  at  times  when 
water  from  the  feeder  is  not  necessary  to 
maintain  the  specified  depth  in  the  canal. 

Id. 
Continuance  of;   maintenance  of  dams  and 

bulkheads. 
Dam  for  supply  of,  see  Dams,  5,  9. 
See  also  infra,  Editorial  Notes. 

9.  One  whose  water  rights  have  been  in- 
jured by  diverting  a  watei:  course  by  a 
canal  constructed  across  his  land  without 
his  consent  may  make  a  valid  contract  for 
the  continuance  of  the  canal  and  a  supply 
of  water  therefrom.  Case  v.  Hoffman,  100 
Wis.  314,  72  N.  W.  390,  74  N.  W.  220, 

N        44:  728 

10.  The  owner  of  a  canal  which  has  be- 
come a  substitute  for  a  natural  water 
course,  although  he  acquires  it  with  notice 
of  certain  rights  and  privileges  of  other 
persons  thereon,  whieh  are  open,  visible,  and 
notorious,  which  require  the  maintenance 
by  him,  so  long  as  he  uses  the  canal,  of  a 
dam  or  bulkhead  to  furnish  them  water 
from  the  canal,  can  free  himself  from  this 
obligation  by  the  abandonment  of  his  use 
of  the  canal.  Id. 

11.  The  owner  of  a  canal  who  acquires  it 
with  notice  of  the  rights  of  other  persons 
to  have  a  certain  quantity  of  water  sup- 
plied from  it,  for  which  a  dam  or  bulkhead 
m  the  canal  is  required,  must  maintain  such 
dam  or  bulkhead  as  long  as  he  continues  to 
use  the  canal.  Id. 

Editorial  Notes. 

Construction  and  operation  of  canals.     61: 
833. 
As  public  improvement.     61:  833. 
Acquisition  of  rights.     61 :  834. 

What  may  be  acquired.     61:  834. 
What   is    taken   or   acquired.     61: 

■     836. 
Extent  of  title.     61 :  838. 
Compensation.     61:  841. 
In  general.     61:  841. 
Amount.     61 :  844. 
How  paid.     61 :  846. 
Remedy.     61 :  846. 

In  general.     61 :  846. 
Procedure.    61:  847. 
Other  matters.     61:  848. 
Location.     61:849. 
Use  of.     61 :  850. 

As  highway.     61:  850. 
Other  uses.     61 :  852. 
In  general.     61:  852. 
For  water  power.    61 :  853. 
Injury  by   construction   and   use.     61: 

858. 
Duty  to  patrons.     61 :  862. 
Adjuncts  to  canal.     61 :  863. 
Rights  of  owner.     61 :  868. 
Abandonment  and  transfer.     61:  871. 
Repair  and  improvement.    61:  876. 
Riparian  rights.     61:  877. 
Prescription.     61:  877. 


Claims  against  state  for  injuries  on.  42: 
65. 

Liability  of  counties  for  injury  to  real  prop- 
erty from.     39 :  69. 

Boundary  on.     51:  179. 

Necessity  of  franchise  for  taking  tolls  on. 
37:  715. 


CANCELATION  OF  INSTRUMENTS. 

Proceeding  for,  as  one  in  Rem,  see  Action  or 

Suit,  65. 
Jurisdiction    of    Suit    for,    see    Courts,    56; 

Equity,  I.  f. 
Limitation  of  Action  for,  see  Limitation  of 

Actions,  196,  199. 
Parties  to  Action  for,  see  Parties,  186. 
For  Fraud,  see  Pleading,  658. 
As    to    Reformation    of    Instruments,    see 

Reformation  of  Instnimemts. 
Removal    of    Action    for,    see    Removal    of 

Causes,  15. 
For  Usury,  see  Usury,  48. 
Of  Registry  of  Corporate  Bonds,  see  Brokers, 

13. 
Of    Mortgage     to     Loan     Association,     see 

Building  and  Loan  Associations,  13. 
Of    Nontransferable    Railroad    Ticket,    see 

Carriers,  618. 
Of  Contracts  Generally,  see  Contracts,  V.  c. 
Of  Stock  Paid  for  from  Secret    Profits    of 

Promoters,  see  Corporations,  338. 
Of    Stock    Subscriptions,   see    Corporations, 

380-388. 
Of  Deed  by  Infant,  see  Infants,  76. 
Of  Insurance  Policy,  see  Insurance,  III.  c. 
Of  Liquor  License,  see  Intoxicating  Liquors, 

n.  d. 
Of    Deeds    and    Leases    not    Mentioned    in 

Pleading,  see  Judgment,  59. 
Of  Gas  Lease,  see  Mines,  83. 
Of  Release  of  Mortgage,  see  Mortgage,  120, 
Of  Will,  see  Wills,  57-61. 

1.  To  authorize  equity  to  cancel  a  writing 
on  the  ground  of  mistake  based  on  mistaken 
belief  of  a  party,  that  belief  must  be  a 
fair  and  reasonable  one,  justified  by  facts 
adequate  to  inspire  it.  Attkisson  v.  Plumb, 
50  W.  Va.  104,  40  S.  E.  587,  58:  788 

2.  A  written  contract  may  be  canceled  on 
proof  that  it  was  signed  by  one  of  the  par- 
ties at  the  request  of  the  other  parties, 
under  an  agreement  that  it  should  not  be 
binding,  and  on  their  statement  that  the 
signature  was  necessary  to  comply  with 
their  rules  in  order  to  permit  him  to  see  a 
certain  process  for  the  manufacture  of  glu- 
cose, for  the  manufacture  of  which  he  talked 
of  organizing  a  corporation.  Olmstead  v. 
Michaels,  36  Fed.  455,  1:  840 


CANDIDATES. 


Libel    of,    see    Libel    and    Slander,    76,    77 
147-155. 


834 


CANNON— CARRIERS. 


CANNON, 

Municipal  Liability  for  Firing,  see  Munici- 
pal Corporations,  442,  443. 


CANVASS. 
Of  Vote,  see  Elections,  II.  c. 


CANVASSERS. 


Interstate  Business  of,  see  Commerce,   154. 
As  Peddlers,  see  Peddlers,  6. 


CAPACITY. 


Presumption  and  Burden  of  Proof  as  to,  see 
Evidence,  II.  e,  5. 


CAPITAL. 

Change  of  Location  of,  as  Subject  for 
Amendment  of  Constitution,  see  Con- 
stitutional Law,  3-6. 

Implied  Contract  against  Change  of  Loca- 
t\gn  of,  see  Contracts,  22. 

Of   Corporation,   see   Corporations,   V. 

As  to  County  Seat,  see  Counties,  I.  b. 

As  Distinguished  from  Income,  see  Life 
Tenants,  IL  b. 

1.  There  can  be  no  irrepealable  law  to 
prevent  the  removal  of  the  seat  of  state 
government,  as  this  involves  a  governmental 
subject.  Edwards  v.  Lesueur,  132  Mo.  410, 
33  S.  W.  1130,  31:815 

2.  The  power  tb  select  and  afterwards  to 
change  its  own  seat  of  government  if 
deemed  expedient  is  necessarily  implied  in 
a  state  Constitution  providing  for  a  repub- 
lican fonn  of  government  not  repugnant  to 
the  Constitution  of  the  United  States,  and 
making  no  limitation  upon  its  political  or 
governmental  power  or  the  power  to  man- 
age its  own  internal  affairs.  Id. 

• ♦-•-♦ 


CAPITAL  CASE. 

Editorial  Notes. 


Statute    allowing    plea    of    guilty    in.     16: 
358. 


CAPITAL  PUNISHMENT. 

As  to  Execution,  see  Certiorari,  41;  Consti- 
tutional Law.  112;  Criminal  Law,  190, 
208-211,  20S.   209. 

\'a1idit}'  of  Insurance  Contract  against,  see 
liKurancp.   185.  186.  973. 


CAPITATION   TAX. 

Self-Executing  Provision  as  to,  see  Consti- 
tutional Law,  92. 


CAPTAIN. 

Of   Foreign  Vessel.  Liability  for  Arresting, 

see  False  Imprisonment,  28. 
Of  Militia,  Authority  of,  see  Militia,  2. 


CAPTION. 

Failure  to  Name  Crime  in,  see  Indictment, 

etc.,  55. 
Of  Amendatorv  Act.  see  Statutes,  245. 


CARCASS. 

See  Dead  Animals. 


CAR  COUPLERS. 


See  Couplers. 


CARDS. 

Validity  of  Agreement  as  to  Winnings  from 
Play,  see  Contracts,  521,  522. 


CARNAL  INTERCOURSE. 
See  Rape;  Seduction. 


CARPET   MAKERS. 
Custom  of,  see  Custom,  21. 


CARRIAGES. 


Bicycles  as,  see  Bicycles,   12. 
Discrimination     of     Carrier     between,     see 
Carriers,    104.5-10(57. 


CARRIERS. 

I.  Whp  are  Common  Carriers;  Relation  to 
Public. 
II.  Rights,  Duties,  and  Liabilities. 

a.  As  to  Passengers  and  Other  Per- 
sons. 

1.  In  General. 

2.  Rules   and   Regulations;    Who 

are  Passengers. 


CARRIERS. 


886 


IL  a,  2 — continued. 

a.  Rules  and  Regulations 
6.  Who  are  Passengers. 

(1)  Persons  Riding  Free; 

Wrongfully  on 
Train. 

(a)  In  General. 

(b)  Employee      o  f 

Carrier. 

(c)  Other  Persons. 

(2)  When  Relation  Com- 

mences. 

(3)  Termination  of  Rela- 

tion. 
3.  Duty    to    Passengers;    Protec- 
tion. 
o.  In  General;  Care  of  Pas- 
sengers. 
6.  Abuse 


c.  Assault. 

d.  Arres.t; 

nient. 
Measure     of 


False  'imprison- 


Care    Required ; 
Negligence  Generally. 
o.  Of  Carrier. 

( 1 )  In  General. 

(2)  As  to  Tracks,  Road- 

bed, etc. 

(3)  As     to     Vehicle,     or 

Place  of  Riding  Gen- 
erally. 

5.  Contributory      Negligence 

of  Passenger. 

(1)  In  General. 

(2)  Riding    on    Platform 

or  Footboard. 

(3)  Riding  in  Wrong  Car. 
6.  Ejection  of  Passenger  or  Tres- 
passer. 

o.  In  General. 

6.  Grounds  for. 

( 1 )  Misbehavior ;       D  i  s- 

ease. 

(2)  Nonpayment  of  Fare, 

or  Defective  Ticket. 
c.  At  What  Place. 

6.  Leaving  at  Destination;   Stop 

Over. 

7.  Disabled  or  Incompetent  Pas- 

sengers. 
o.  Duty     or    Negligence    of 
Carrier. 

(1)  In  General. 

(2)  Duty  to  Receive. 
Contributory  Negligence. 


8.  Getting  On  or  Off. 

a.  Duty     or    Negligence 


of 


Carrier 
6.  Contributory  Negligence. 

(1)  In  Getting  On. 

(2)  In  Getting  Off. 
Safety     of     Approaches     and 

Platforms. 
c.  In  General. 

( 1 )  Carrier's      Duty      or 

Negligence. 

(2)  Contributory     Negli- 

gence. 
h.  Platform'a  Generally, 
c.  Duty   to  Keep  open   and 
Light. 


n.  a,  2— continued. 

10.  Tickets;  Conditions;  Fare. 

o.  In  General. 

h.  Excursion  or  Round  Trip 
Tickets. 

c.  Passes. 

d.  Extra  Fare. 

e.  On  Street  Cars. 

f.  Limitation  of  Liability. 

11.  Blackboard  Announcements  as 

to  Trains. 

12.  Baggage  or  Property  of  Pas- 

senger. 
o.  In  General. 
h.  What  is  Baggage. 

c.  Taking  Parcels  on  Train. 

d.  Liability  of  Sleeping  Car 

Company. 

e.  Limitation  of  Liability. 

b.  As  to  Freight. 

1.  In  General;  Powers  of  Agents. 

2.  Duty   to   Receive    and    Trans- 

port. 

3.  Loss   of,   or   Injury   to.   Prop- 

erty. 

4.  Delivery  by  Carrier;  Delay. 

a.  In  General;  Refusal  to 
Deliver. 

h.  Notice  of  Arrival;  Ter- 
mination of  Liability. 

c.  Misdelivery ;  Wr  o  n  g  f  u  1 

Delivery. 

d.  Time;  Delay. 

6.  Liability  and  Lien  for  Freight 
Charges ;   Rates. 

6.  Carrying  Livestock. 

7.  Stipulations     to     Limit     Lia- 

bility. 
a.  In  General, 
ft.  As  to  Negligence. 

c.  As  to  Amount. 

d.  As  to  Time  of  Giving  No- 

tice or  Commencing  Suit. 

e.  Excepted  Perils. 

8.  Contract   or  Duty  to   Furnish 

Cars. 

9.  Demurrage    on    Cars. 

c.  Connecting  Carriers. 

1.  Of  Passengers. 

2.  Of  Freight. 

a.  In  General. 

6.  Selection  of  Route. 

d.  Criminal  Transportation. 

III.  Governmental  Control;  Rates;  Discrim- 

ination; Duty  as  to  Stopping 
Places. 

a.  In  General. 

b.  Compulsory  Connection  and  Inter- 

change of  Business;  Discrimina- 
tion between  Carriers;  Hackmen. 
etc.;  Through  Rates. 

c.  Rates;       Discrimination      between 

Passengers  or  Shippers;  Re- 
bates. 

1.  In  General. 

2.  Power  to  Fix  Rates;  Mileage 

Tickets. 

3.  Reasonableness  of  Rates. 

4.  Discrimination ;    Rebates. 

d.  Duty     as     to     Depots;      Stopping 

Tra.?n.<!:  Dntv  to  Riui  Trains. 

IV.  Editorial  Notes. 


336 


CARRIERS,  I. 


Liability  of  Passenger's  EfTeots  to  General 
Average,  see  Average. 

Conflict  of  Laws  as  to  Contracts  of,  sefi  Con- 
flict of  Laws,  I.  b,  4. 

Illegal  Combination  of,  see  Conspiracy,  II.  d. 

Discrimination  against,  as  to  Attorney's 
Fees,  see  Constitutional  Law,  574-576. 

Police  Power  as  to,  see  Constitutional  Law, 
1014,  1015. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  III.  a,  3,  b. 

Consideration  for  Contract  with,  see  Con- 
tracts, 71. 

Agreement  for  Excursion  Party,  see  Con- 
tracts, 110. 

Right  to  Furni&h  Liquor  to  Travelers,  see 
Corporations,  91. 

Death  Penalty  for  Assault  upon  a  Train, 
see  Criminal  Law,  208. 

Damages  in  Actions  against,  see  Damages, 
II.  b;    III.  c;    III.  d;    trial,  660. 

Elevators  as  Carriers,  see  Elevators,  II. 

Condemnation  of  Landing  of,  for  Wharf, 
see  Eminent  Domain,  65. 

Judicial  Notice  as  to,  see  Evidence,  80-98. 

Papers  of,  as  Evidence,  see  Evidence,  970-2. 

Admissibilitv  of  Declarations  of  Carrier's 
Apent,  see  Evidence,  1630-1635. 

Garnishment  of,  see  Garnishment,  16,  17,  36, 
37. 

Indictment  of,  see  Indictment,  etc.,  48. 

Place  of  Sale  on  Delivery  to,  see  Intoxi- 
cating Liquors,  145-148. 

Revocability  of  License  to  Maintain  Siding, 
see  License,  19. 

Liability  for  Homicide  by  Station  Agent, 
see"  Master  and  Servant,  678. 

Ordinance  Against  Soliciting  Buainess  in 
Depot,  see  Municipal  Corporations,  240. 

Shipper's  Liability  for  Negligently  Loaded 
Gars,  see  Negligence,  62. 

Imputing  Carrier's  Negligence  to  Passenger, 
see  Negligence,  254-265. 

Imputing  Employee's  Knowledge  to,  see 
Notice,  58,  60. 

Liability  for  Loss  of  Mail,  see  Postoflice,  9-12. 

Proximate  Cause  of  Loss  or  Injury  by,  see 
Proximate  Cause,  III. 

Injury  to  Person  Going  to  Depot  to  Inter- 
view Passenger  or  Employee,  see  Rail- 
roads, 114,  117. 

Release  of,  from  Liability  for  Injuries,  see 
Release,  14-16,  19-21. 

Matters  Peculiar  to  Ships,  see  Shipping. 

Partial  Invalidity  of  Statute  as  to,  see 
Statutes,  113,  114. 


I.  Who  are  Common  Carriers;    Relation   to 
Public. 

Owner  of  Refrigerator  Cars   as,  see  infra, 

948. 
Owner  of  Elevator  as,  see  Elevators,  11. 
Telegraph  Company  as,  Bee  Telegraphs,  8,  9, 

45. 
Telephone   Companv  as,   see   Tele]>hones,   6, 

19. 
See  also  infra.  655,  1140. 
For  Editorial  Notes,  see  infra,  IV.  §§  2,  33. 

1.  A  common  carrier  may  be  a  carrier  of 
cither     passengers,     or     freight,     or     both. 


Thomson -Houston  Electric  Co.  v.  Simon,  20 
Or.  60,  25  Pac.  147,  10:  251 

2.  The  duty  of  common  carriers  with  re- 
spect to  the  transportation  of  persons  and 
property  is  independent  of  contract.  Dela- 
ware, L.  &  W.  R.  Co.  V.  Trauitwein  (N.  J. 
Err.  &  App.)  52  N.  J.  L.  169,  19  Atl.  178, 

7:435 

3.  A  person  trucking  goods  for  particular 
customers  at  prices  fixed  in  each  case  by 
special  contract  is  not  a  common  carrier  so 
as  to  be  liable  as  an  insurer  of  the  goods. 
Faucher  v.  Wilson,  68  N.  H.  338,  38  Atl. 
1002,  39:  431 

4.  A  licensed  carrier  within  a  city,  hauling 
for  all  persons  who  require  his  services,  is 
liable  as  a  common  cairier  while  carrying 
goods  outside  of  the  city  under  an  agree- 
ment to  take  them  to  a  certain  point,  with- 
out any  further  contract,  although  he  could 
not  have  been  compelled  to  carry  outside  the 
city.  Farley  v.  Lavary,  107  Ky.  523,  54  S. 
W.  840,  47 :  383 

5.  A  constitutional  provision  making  all 
railroad  companies  common  carriers  does  not 
apply  to  a  corporation  organized  for  busi- 
ness purposes,  which  operates  a  railroad, 
upon  its  own  property  for  purposes  con- 
nected with  its  business.  Wade  v.  Lutcher 
&  M.  Cypress  Lumber  Co.  41  U.  S.  App.  45, 
20  C.  C.  A.  515,  74  Fed.  517.  33:  255 

6.  A  railroad  company  is  not  a  common 
or  public  carrier  in  respect  to  a  special  trajn 
of  cars  loaded  with  wild  animals  and  other 
property  as  well  as  persons,  belonging  to  or 
connected  with  a  circus,  which  is  loaded  and 
unloaded  by  the  proprietor  of  the  circus  and 
is  run  on  specjal  tdme  to  suit  his  conven- 
ience, under  a  special  contract  that  he  shall 
assume  all  the  risk  of  accidents,  the  only 
duty  of  the  railroad  company  being  to  haul 
the  cars.  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Wallace,  24  U.  S.  App.  589,  14  C.  C.  A.  257, 
66  Fed.  506,  30:  161 
Sleeping  car  companies. 

7.  A  sleeping  car  company  is  not  a  com- 
mon carrier  or  an  innkeeper.  Pullman  Pal- 
ace-Car Co.  V.  Gavin,  93  Tenn.  53,  23  S.  W. 
70,  21 :  298 
Street  railway  companies. 

For  Editorial  Notes,  see  infra,  IV.  §  2.     • 

8.  Street  railway  companies  are  common 
carriers,  ana  liable,  like  other  common -car- 
riers, upon  common-law  principles.  Spell- 
man  V.  Lincoln  Rapid  Transit  Co.  36  Neb. 
890,  55  N.  W.  270,  20:  316 
Bridge  companies. 

9.  A  bridge  company  owning  no  freight 
cars,  which  solicits  freight  for  railway  com- 
panies who  will  furnish  the  cars  and  over 
whose  lines  the  freight  is  to  go,  and  merely 
transfers  such  cars  over  its  bridge  to  the 
railway  companies  furnishing  them,  charg- 
ing for  its  service  its  regular  bridge  toll,  but 
making  no  charge  for  transporting  the 
freight  contained  or  carried  in  the  cars,  is 
not  a  cf>iiimon  carrier  of  such  interstate 
freig-ht.  Kentucky  &  I.  Bridge  Co.  v.  Louis- 
\-ille  &  N.  R.  Co.  37  Fed.  567,  2:  289 

10.  The  franchises  and  powers  of  building, 
iiinintainintr.  and  operatinu  a  brid^ee  tind  ap- 
proaches, designated  as  its  terminal   facil- 


CARRIERS,  II.  a.  1. 


o67 


ities,  do  not,  in  and  of  themselves,  consti- 
tute the  bridge  company  a  common  carrier 
of  property;  nor  do  they,  by  any  clear  im- 
plication, confer  upon  it  authority  "to  equip 
its  road,  and  to  transport  goods  and  passen- 
gers thereon,  and  charge  compensation 
therefor."  Id. 

11.  Under  the  charter  of  a  bridge  com- 
pany making  its  bridge  and  approaches 
thereto  a  public  thoroughfare  or  highway, 
for  the  use  of  which,  by  railroads  or  street 
cars,  wagons,  vehicles,  animals,  and  foot 
passengers,  it  was  authorized  to  charge 
"reasonable  tolls,"  for  the  collection  of 
which  suitable  toUgates  could  be  estab- 
lished, the  word  "tolls"  is  strictly  applicable 
to  charges  for  the  use  of  its  highway,  rather 
than  to  compensation  for  transportation 
services  which  the  bridge  company  may  per- 
form or  be  permitted  to  render.    «  Id. 

12.  Where  a  railroad  company,  by  con- 
tract with  a  bridge  company,  acquires  the 
right  to  use  a  bridge,  with  its  approaches, 
for  its  engines,  cars,  and  trains,  it  is  re- 
garded, under  the  Act  to  Regulate  Com- 
merce, §  1,  as  the  owner  or  operator  of  the 
bridge  and  approaches,  for  the  time  being, 
as  to  all  freight  transported  by  it  over  the 
bridge.  And  as  to  all  such  traffic  it,  and 
not  the  bridge  company,  must  be  regarded 
as  the  common  carrier.  Id. 

13.  A  corporation  which,  being  under  no 
legal  obligation  to  do  so,  voluntarily  con- 
tracts to  switch  cars  over  its  tracks,  be- 
tween two  or  more  railways,  for  Avhich 
service  it  collects  a  certain  switching  charge 
for  switching  the  cars,  loaded  or  empty,  but 
charges  no  traffic  rates  on  the  freight  trans- 
ported or  transferred  in  the  cars  in  the  per- 
formance of  such  service,  assumes  none  of 
the  responsibilities  of  a  common  carrier,  but 
only  those  of  a  switchman.  Id. 


n.  Rights,  Duties,  and  Liabilities. 

a.  As  to  Passengers  and  Other  Persons. 

1.  In  General. 

Due  Process  in  Statutory  Imposition  of  Lia- 
bility, see  Constitutional  Law,  852. 

Punitive  Damages  for  Injury  to  Passenger, 
see  Damages,  II.  b. 

Recovery  for  Mental  Anguish,  see  Damages, 
564-566. 

Limitation  of  Action  for  Causing  Death  of 
Passenger,  see  Limitation  of  Actions, 
200. 

Liability  of  Railroad  Company  Operated  by 
Receiver,  see  Railroads,  23. 

Power  of  agents. 

As  to  Freight,  see  infra,  742-745. 
Bnrden  of  Proof  as  to,  see  Evidence,  294. 
Allegation  as  to,  see  Pleading.  389. 
See  also  infra,  605,  606,  613,  979. 

14.  The  conductor  of  a  train  on  which  a 
passenger  has  been  carried  past  destination 
has  no  implied  authority  to  constitute  the 
proprietor  of  a  hotel  an  agent  of  the  car- 
rier for  the  purpose  of  caring  for  such  pas- 
L.R.A.  Dig.— 22. 


senger  until  a  return  train  comes,  so  as  to 
render  the  company  liable  for  injuries  to  the 
passenger  in  consequence  of  the  hotelkeep- 
er's  negligence.  Central  of  Ga.  R.  Co.  v. 
Price,  106  Ga.  176,  32  S.  E.  77,  43:  402 

15.  Depot  agents  have  the  power,  as  inci- 
dent to  the  office,  to  make  reasonable  regula- 
tions as  to  the  conduct  of  business  at  their 
depots,  unless  restricted,  controlled,  or  limit- 
ed in  that  respect.  Smith  v.  Chamberlain, 
38  S.  C.  529,  17  S.  E.  371,  19:  710 
Route. 

For  Freight,  see  infra,  n.  c,  2  6. 
See  also  infra,  23,  607. 

16.  Failure  of  a  railroad  company  to  noti- 
fy a  passenger  of  its  regulation  that  through 
passengers  between  two  points  shall  take  a 
direct  route,  instead  of  a  more  circuitous 
one  which  it  also  operates,  does  not  entitle 
the  passenger  to  ride  between  such  points 
on  the  more  circuitous  route.  Chureh  v. 
Chicago,  M.  &  St.  P.  R.  Co.  6  S.  D.  235,  60  N. 
W.'854,  26:616 

17.  Failure  of  a  railroad  company  to  no- 
tify a  passenger  having  a  through  ticket  to 
change  cars  at  a  junction  to  connect  with 
the  more  direct  route  over  which  its  regula- 
tion requires  her  to  travel  does  not  entitle 
her  to  travel  by  a  more  circuitous  route,  al- 
though such  failure  may  be  tdie  ground  for 
damages.  Id. 

18.  Failure  of  a  gatekeeper  at  the  initial 
station  to  inform  a  passenger  who  states 
that  she  desires  to  go  to  her  destination  by 
a  certain  route,  that  she  will  have  to  change 
at  a  junction  500  miles  away,  and  cannot  go 
from  such  junction  by  the  route  named,  does 
not  entitle  her  to  take  such  route  against 
the  regulation  of  the  company  requiring 
through  passengers  to  take  a  more  direct 
route.  Id. 
Injury  due  to  third  person's  negligence. 

As  to  Freight,  see  infra,  772,  949. 
Negligence  of  Connecting  Carriers,  see  infra, 

IL  c,  1. 
Joint  Liability  for,  in  Case  of  Concurring 

Negligence,    see    Joint    Creditors     and 

Debtors,  4. 
Eflfeot  of  Release  of  One  of  Parties  Causing 

Injury,  see  Joint  Creditors  and  Debtors, 

8. 
Joint   Action   against   Two   Railroad   Com- 
panies, see  Parties,  200. 
See  also  infra,  164,  231,  264,  528,  537,  559, 

593,  734;  Proximate  Cause,  63. 
For  Editorial  Notes,  see  infra,  IV.  §§6,  30. 

19.  A  passenger  on  a  street  car,  injured 
by  its  collision  with  a  wagon  at  a  street 
crossing,  cannot  recover  from  the  street  car 
company  for  his  injuries,  although  he  was  in 
the  exercise  of  due  care,  if  the  evidence,  so 
far  as  it  goes,  tends  to  show  that  the  col- 
lision was  due  to  the  negligence  of  the  per- 
son in  charge  of  the  wagon.  Black  v.  Bos- 
ton Elev.  R.  Co.  187  Mass.  172,  72  N.  E. 
970,  _      ^  68:799 

20.  A  railroad  company  is  liable  to  a  pas- 
senger on  its  train  for  negligence  of  the 
servants  of  another  railroad  company  over 
whose  track  such  train  is  running  under  a 
contract  between  the  companies,  whereby 
the  train  is  to  be  run  subject  to  the  orders 


838 


CARRIERS.  II.  a,  2. 


and  signals  given  by  servants  of  the  owner 
of  the  track,  since  they  become  ther^y  the 
servants  of  the  owner  of  the  train  for  the 
purpose  of  its  management.  Murray  v. 
I^high  Valley  R.  Ck).  66  Conn.  512,  34  Atl. 
506,  -32:  539 

2.  Rules  and  Regulations;  Who  are  Passen- 
gers. 
a.  Rules  and  Regulations. 

Evidence  as  to,  see  Evidence,  2077. 
Alleging  Compliance  with,  see  Pleading,  229. 
Question  for  Jury  as  to  Reasonableness  of, 

see   Trial,   143-147. 
See  also  supra,   15;    infra,   63-72,   140,  258, 

290,    366,   639,   646-649,    683,   686,    691, 

1056. 
For  Editorial  Notes,  see  infra,  IV.  §§7,  17. 

21.  A  common  carrier  has  a  right  to  make, 
and  as  a  condition  precedent  to  insist  upon  a 
compliance  with,  reasonable  rules  and  regu- 
lations designed  to  protect  its  interests  and 
promote  the  safe  and  convenient  transaction 
of  business,  when  the  same  contravene  no 
consideration  of  public  policy  and  in  no 
manner  affect  its  liabilivy  under  the  stat- 
utory or  common  law.  Kirby  v.  Western  U. 
Teleg.  Co.  4  S.  D.  105,  439,  7  S.  D.  623,  55 
X.   \N'.  759,  57  N.  W.  199,  65  K  W.  37, 

30:612 

22.  The  dominion  of  a  railroac^  corporation 
over  its  trains,  tracks,  and  right  of  way  is 
no  less  complete  or  exclusive  than  that 
which  every  owner  has  over  his  own  prop- 
erty. Hence,  the  corporation  may  exclude 
whom  it  pleases  when  they  come  to  transact 
their  own  private  business  with  passengers 
or  other  third  persons,  and  admit  whom  it 
pleases,  when  they  come  to  transact  such 
business.  This  applies  to  selling  lunches  to, 
or  soliciting  orders  from,  passengers  for  the 
sale  of  lunches  Fluker  v.  Georgia  R.  & 
Bkg.  Co.  81  Ga.  461,  8  S..E.  529,  2:843 
As  to  route. 

23.  It  is  a  reasonable  regulation  for  a  rail- 
road company  having  two  lines  of  road  be- 
tween two  points,  one  direct  and  the  other 
circuitous,  to  require  that  through  passen- 
gers traveling  upon  a  simple  ticket  from  one 
of  such  points  to  the  other  shall  go  by  the 
most  direct  route;  and  such  regulation  be- 
comes a  part  of  the  contract  of  carriage. 
Church  v.  Chicago.  M.  &  St.  P.  R.  Co.  6  S. 
D.  235.  60  N.  W.  854,  26:  616 
As  to  dress  of  passengers. 

24.  A  rule  adopted  by  a  railroad  company, 
which  inhibited  passengers  on  its  trains 
from  wearing  the  uniform  cap  of  a  line  of 
steamers  running  in  opposition  to  a  line  of 
steamers  ninning  in  connection  with  the 
company,  was  not  reasonable,  and  hence  not 
binding  on  the  public.  South  Florida  R.  Co. 
V.  Rhoads,  25  Fla.  40,  5  So.  633,  3:  733 
As  to  keeping  depot  open. 

For  Editorial  Notes,  see  infra,  IV.  §  7. 

25.  A  rule  for  closing  a  railroad  waiting 
room  after  the  departure  of  a  train,  until 
thirty  minutes  before  the  departure  of  the 
next  train,  is  a  reasonable  one  as  applied 
to  a  person  who  has  come  to  the  station 
at  8  p.  M.  to  wait  for  a  train  at  1:.30  a.  m. 


and  is  driven  out  of  the  room,  although  the 
night  is  cold,  to  wait  several  hours  until  the 
regular  time  of-  reopening  the  room;  but  the 
rule  might  not  be  reasonable  in  case  of 
through  passengers  or  delayed  trains.  Phil- 
lips V.  Southern  R.  Co.  124  N.  C.  123,  32  S. 
E.  388,  45:  163 

As  to  sleeping  in  waiting  rooms. 

26.  In  the  absence  of  any  duty  devolv- 
ing upon  a  railway  company  to  provide  at 
its  stations  a  place  wherein  its  patrons  may 
sleep  while  awaiting  the  arrival  or  depart- 
ure of  trains,  a  regulation  forbidding  pas- 
sengers from  going  to  sleep  in  its  waiting 
rooms,  or  lying  down  on  the  benches  there- 
in, is  not,  in  a  legal  sense,  unreasonable. 
Central  of  Georgia  R.  Co.  v.  Motes,  117  Ga. 
923j  43  S.  E.  990,  62:  507 
As  to  tickets. 

As  to  Extra  Fare,  see  infra,  II.  a,  10,  d. 
Question  for  Jury  as  to  Reasonableness  of 

Rule,  see  Trial,  145. 
For  Editorial  Notes,  see  infra,  TV.  §§  17,  18. 

27.  A  ticket  issued  by  a  carrier  gives  the 
passenger  the  right  to  transportation  sub- 
ject to  such  reasonable  rules  and  regulations 
as  the  company  may  make  concerning  the 
running  of  its  trains  and  their  route. 
Church  V.  Chicago,  M.  &  St.  P.  R.  Co.  6  S. 
D.  235,  60  N.  W.  854,  26:  616 

28.  The  absence  of  the  agent  from  his  of- 
fice when  there  is  not  sufficient  time  re- 
maining for  an  intending  passenger  to  pur- 
chase a  ticket  and  enter  a  train  before  its 
departure  will  not  entitle  the  passenger  to 
disregard  a  rule  requiring  the  possession  of 
tickets  as  a  condition  to  entering  the  train. " 
Mills  V.  Missouri,  K.  &  T.  R.  Co.  94  Tex. 
242,  59  S.  W.  874,  55:497 

29.  A  rule  forbidding  passengers  to  enter 
cars  without  tickets  cannot  be  enforced 
under  a  statute  requiring  ticket  offices  to 
be  open  half  an  hour  before  departure  of 
trains,  unless  during  that  time  someone  has 
been  there  to  sell  tickets;  and  it  is  unen- 
forceable where,  although  the  office  was 
open,  the  agent  was,  for  a  portion  of  the 
time,  absent  therefrom  attending  to  other 
duties.  Id. 

30.  A  regulation  of  a  railroad  company 
requiring  passengers  to  purchase  tickets  be- 
fore entering  trains  is  not  forbidden  by  stat- 
utes requiring  the  transportation  of  passen- 
gers ''on  due  payment  of  fare  legally  author- 
ized therefor,"  and  prescribing  that  when 
fare  is  paid  on  the  train  a  higher  rate  may 
be  exacted  than  when  tickets  are  purchased. 

Id. 

31.  A  rule  of  a  street  railway  company 
requiring  passengers  to  buy  tickets  and 
board  the  cars  within  the  station,  and  com- 
pelling one  who  boards  a  car  withoiit  the 
station  to  pay  fare,  even  though  he  has 
previously  paid  a  fare  within  .the  station, 
is  a  reasonable  regulation  for  facilitating 
the  transfer  of  passengers  and  the  dispatch 
of  cars;  but  it  must  be  enforced  in  a 
reasonable  manner.  Nashville  Street  R.  Co. 
v.  Griffin,  104  Tenn.  81,  57  S.  W.  153,  49:  451 

32.  A  regulation  upon  a  crowded  subur- 
ban train,  by  which  a  conductor  and  a  col- 
lector start  from  each  end  of  the  train  to 


CARRIERS.  II.  a,  2. 


339 


collect  tickets  and  fares,  and  passengers  are 
prohibited  from  passing  either  without  a 
ticket  unless  they  satisfy  the  conductor  or 
collector  that  they  have  already  paid,  is 
reasonable,  and  may  be  enforced  against  a 
passenger  having  no  previous  notice  thereof. 
Faber  v.-  Chicago  G.  W.  R.  Co.  62  Minn.  433, 
64  N.  W.  918,  36:  789 

As  to   place   to   ride. 

Question  for  Jury  as  to  Reasonableness  of 
Rule,  see  Trial,  146,  147. 

33.  A  rule  requiring  passengers  to  remain 
in  the  cars  provided  for  them,  and  prohibit- 
ing them  to  ride  in  an  express  car  or  other 
place  of  increased  danger  set  apart  for  an- 
other purpose,  is  reasonable.  Florida  S.  R. 
Co.  V.  Hirst,  30  Fla.  1,  11  So.  506,       16:  631 

34.  Although  a  carrier  may  abandon  its 
rule  prohibiting  passengers  to  ride  in  an  ex- 
press car,  the  mere  delinquency  oi,a  conduc- 
tor in  enforcing  the  rule  is  not  sufficient 
to  constitute  an  abandonment,  without  such 
conduct  as -in  effect  establishes  the  concur- 
rence of  the  carrier  in  the  disregard  of  the 
regulation.  Id. 

35.  A  rule  forbidding  passengers  on  elec- 
tric cars  to  ride  on  the  front  platform,  and 
declaring  that  the  company  will  not  be  re- 
sponsible for  their  safety  there,  is  a  reason- 
able one,  for  the  violation  of  which  a  pas- 
senger may  be  denied  any  remedy  for  injury 
resulting  therefrom.  Sweetland  v.  Lynn  & 
B.  R.  Co.  177  Mass.  574,  59  N.  E.  443,  51 :  783 

36.  A  pustoni  to  receive  passengers  upon 
the  front  and  rear  platforms  of  electric  cars, 
without  question,  and  to  receive  fare  from 
them,  will  constitute  a  waiver  and  abandon- 
ment of  a  rule  which  forbids  them  to  ride 
there.  Id. 

37.  The  rule  of  a  railroad  company  that 
passengers  must  not  stand  on  platforms  is 
waived  by  receiving  passengers  for  whom  it 
fails  to  proivide  suitable  accommodations 
inside  its  coaches.  Graham  v.  McNeill,  20 
Wash.  466,  55  Pac.  631,  43:  300 

38.  A  rule  of  a  street  railway  company 
requiring  colored  persons  to  occupy  front 
seats  and  white  passengers  the  back  seats 
is  a  reasonable  regulation.  Bowie  v.  Bir- 
mingham Railway  &  E.  Co.  125  Ala.  397,  27 
So.  1016,  50:  632 
As  to  baggage. 

Question  for  Jury  as  to  Reasonableness  of 
Rule,  see  Trial,  145. 

39.  A  rule  that  a  baggage  master  shall 
not  receive  baggage  into  the  baggage  room 
until  a  ticket  shall  have  been  procured  is 
an  imposition  on  the  public,  unreasonable, 
and  void.  Coffee  v.  Louisville  &  N".  R.  Co. 
76  Miss.  569,  25  So.  157,  '  45:  112 

40.  The  traveling  public  have  the  right  to 
stop  and  receive  their  baggage  at  any  regu- 
lar station  or  stopping  place  for  the  train 
on  which  they  may  be  traveling;  and  any 
regulation  that  deprives  them  of  that  right 
is  necessarily  arbitrary,  unreasonable,  and 
illegal.  Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 
Lyon,  123  Pa.  140,  16  Atl.  607,  2:  489 

41.  A  regulation  of  a  railroad  company  by 
which,  although  a  passenger  may  himself 
get  off  at  a  regular  station  or  stopping  place 
of  a  passenger  train,   which  is  just   across 


the  street  from  the  station  of  another  rail- 
road, he  will  not  be  sold  a  ticket  to  that 
place,  or  his  baggage  checked  to  or  delivered 
at  that  station,  but  will  be  compelled  to  pay 
for  a  ticket  to  another  station  a  mile  dis- 
tant, and  go  there  for  his  baggage, — is  un- 
reasonable and  invalid.  Id. 

6.  Who   are   Passengers.  , 

(1)  Persons    Riding    Free;    Wrongfully    on 
Train. 

(a)   In   General. 

Necessity   of   Proving   Alleged   Relation   of 

Passenger,   see   Evidence,   2409. 
Question  for  Jury  as  to,  see  Trial,  173. 
See  also  infra,  90;  Pleading,  363. 
For  Editorial  Notes,  see  infra, TV.  §§  12,  20. 

42.  A  newsboy  jumping  on  and  off  moving 
street  cars  to  sell  papers,  without  requesting 
the  car  to  stop  to  I'eceive  or  discharge  him, 
and  without  receiving  permission  or  asking 
for  leave  or  license,  is  in  no  sense  a  passen- 
ger, and  the  carrier  is  under  no  obligation 
to  him  to  exercise  a  high  degree  of  care,  but 
discharges  its  duty  by  exercising  ordinary 
care.  Padgitt  v.  Moll,  159  Mo.  143,  60  S.  W. 
121,  52:  8.54 
Postal  clerk. 

Variance  in  Proof  as  to,  see  Evidence,  2410. 
For  Editorial  Notes,  see  infra,  IV.  §§  12,  13. 

43.  A  United  States  mail  agent  on  a  train 
in  the  performance  of  his  duties  in  charge  of 
the  mail  is  a  passenger.  Gulf,  C.  &  S.  F.  R. 
Co.  V.  Wilson,  79  Tex.  371,  15  S.  W.  280, 

11:  486 

44.  A  mail  agent,  who,  in  pursuance  of 
his  duties,  rides  in  a  mail  car,  does  not 
thereby  assume  any  risk  of  danger  that  may 
result  from  the  negligence  of  the  carrier 
or  its  servants,  even  conceding  that  he  as- 
sumes all  risks  of  danger  necessarily  arising 
from  his  exposed  position.  Id. 

45.  A  railway  postal  clerk  in  the  employ- 
ment of  the  United  States,  who  is  entitled 
to  ride  free  while  on  duty  or  when  traveling 
to  and  from  duty,  is  a  passenger,  entitled  to 
the  same  care  and  protection  as  other  pas- 
sengers, while  returning  home  from  duty, 
although  he  is  in  the  postal  car  assisting 
in  handling  the  mail  by  request  of  the  clerk 
in  charge,  and  has  not  paid  or  offered  to 
pay  fare,  or  exhibited  his  commission  as 
postal  clerk,  or  notified  the  conductor  of  lus 
presence  on  the  train,  and  the  conductor 
has  not  learned  that  he  is  on  the  train. 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Ketcham, 
133  Ind.  346,  33  N.  E.  116,  19:  339 

46.  A  postal  clerk  in  the  service  of  the 
United  States,  and  doing  his  duty  in  a  mail 
car  of  a  train,  is  a  passenger;  and  the 
railroad  company,  in  an  action  against  it  for 
injury  to  him  while  so  employed,  is  not  en- 
titled to  be  relieved  from  the  negligence  of 
its  servants,  on  the  ground  that  plaintiff 
was  a  fellow  servant  with  them.  Mellor  v. 
Missouri  P.  R.  Co.  105  Mo.  455,  14  S.  W.  758, 
16  S.  W.  849,  ID:  36 


340 


CARRIERS,  II.  a.  3. 


Express  messengers. 

For  Editorial  Notes,  see  infra,  IV.  §  12. 

47.  An  agreement  by  an  express  company 
to  assume  all  transportation  risks  as  to  its 
property  and  express  messenger,  and  in- 
demnify the  railway  company  against  any 
lial)ility  therefor,  will  not  deprive  a  mes- 
senger of  his  rights  as  a  passenger  to  pro- 
tection against  the  negligence  of  the  railway 
company,  vmless  he  had  knowledge  of  such 
ao-reement.  Brewer  v.  New  York,  L.  E.  & 
W.  R.  Co.  124  N.  Y.  59,  26  N.  E.  324,   11:  483 

48.  An  express  messenger  carried  on  a. 
railway  train  in  the  exercise  of  his  business, 
under  a  contract  between  the  railway  com- 
pany and  the  express  company,  is  a  pas- 
senger entitled  to  protection  as  such  against 
the  negligence  of  the  railway  company.    Id. 

(b)  Employee  of  Carrier. 

See  also  Master  and  Servant,  505,  545. 

For  Editorial  Notes,  see  infra,  IV.  §§  12,  20. 

49.  An  employee  of  a  passenger  railway 
company,  who  accepts  transportation  from 
the  company  as  a  mere  gratuity,  and  not 
in  consideration  for  his  services,  stands  like 
anj'one  else  traveling  on  a  free  pass  con- 
ditioned that  the  user  shall  assume  risk  of 
injury,  notwithstanding  the  transportation 
w^oiild  probably  not  be  bestowed  in  the  ab- 
sence of  the  employment.  Peterson  v. 
Seattle  Traction  Co.  23  Wash.  615,  65  Pac. 
543,  .  53:  586 

50.  An  employee  of  a  railroad  company  is 
to  be  regarded  as  a  passenger  when  riding 
on  a  ticket  such  as  is  issued  only  to  em- 
ployees of  the  company  who  live  on  the  line 
of  the  road  elsewhere  than  at  the  place  of 
employment.  Doyle  v.  Fitchburg  R.  Co.  166 
Mass.  492,  44  N.  E.  611,  33:844 
On  own  business. 

For  Editorial  Notes,  see  infra,  IV.  §  12. 

51.  An  employee  of  a  railroad  company 
riding  on  a  pass,  not  in  the  course  of  his 
employment  or  in  going  to  or  from  his  work, 
but  in. making  a  trip  for  his  own  conven- 
ience, but  whose  free  transportation  is  given 
him  under  a  stipulation  in  his  contract  of 
employment,  sustains,  while  so  riding,  the 
relation  of  a  passenger,  and  not  of  an  em- 
ployee, to  the  carrier.  W  hitney  v.  New 
York.  N.  H.  &  IJ.  R.  Co.  43  C.  C.  A.  19,  102 
Fed.  850,  50:  615 

52.  A  street  railway  employee  riding 
gratuitously  under  a  rule  of  the  company 
permitting  employees  to  ride  free  at  any 
time,  who  is  not  on  actual  duty,  and  who 
takes  no  part  in  the  management  of  the 
car,  is  not  a  fellow  servant  of  the  motor- 
man,  by  whose  negligence  he  is  injured,  but 
a  i)asscnger,  to  whom  the  company  is  liable. 
Dickinson  v.  West  End  Street  R.  Co.  177 
Mass.  365,  .59  N.  E.  60,  52:  320 

53.  A  railroad  employee  having  a  month- 
ly ticket  given  him.  which  is  good  for  more 
rides  than  are  necessary  in  attending  to  his 
work,  with  the  express  privilege  of  using 
them  for  his  own  private  interest  or  pleas- 
ure, is  not.  when  passing  over  tlie  road  en- 
tirely for  his  own  business  or  pleasure,  an 


employee,  but  is  a  passenger,  within  Mass. 
Pub.  Stat.  chap.  112,  §  212,  creating  a  lia- 
bilitv  for  injury  to  a  passenger.  Doyle  v. 
Fitchburg  R.  Co.  162  Mass.  66,  37  N.  E. 
770,  25:  157 

Engaged  in  duties. 
For  Editorial  Notes,  see  infra,  IV.  ■§  12. 

54.  A  railroad  em.ployee  engaged  in  work- 
ing upon  a  bridge  \s  a  passenger  while  rid- 
ing on  a  railroad  train  to  his  home  after  his 
day's  work  is  done,  where  his  contract  enti- 
tles him  to  free  transportation  and  he  is  not 
under  any  obligation  to  ride,  or  engaged  in 
any  service  for  the  company  while  so  riding. 
McNulty  v.  Pennsylvania  R.  Co.  182  Pa.  479, 
38  Atl.  524,  38:  376 

55.  A  civil  engineer  of  a  railroad  com- 
pany traveling  on  duty  for  the  company, 
upon  a  pass  exempting  the  company  from 
liability  for  injuries  to  person  or  property, 
occupies  the  position  of  an  employee,  and 
not  that  of  a  passenger  upon  the  train  upon 
which  he  is  carried.  Texas  &  P.  R.  Co.  v. 
Smith,  30  U.  S.  App.  176,  67  Fed.  524,  14  C. 
C.  A.  509,  31:321 
Riding  to  or  from  work  or  to  report  for 

duty. 
For  Editorial  Notes,  see  infra,  IV.  §  12. 

56.  A  night  watchman  at  a  railroad  depot 
who  boards  a  train  near  his  home  to  ride  to 
the  depot  and  report  his  readiness  to  return 
to  duty  the  coming  night,  after  being  off 
duty  a  few  days,  has  the  rights  of  a  pas- 
senger in  case  he  is  injured  by  the  carrier's 
negligence,  although  he  was  riding,  in  viola- 
tion of  a  rule  of  the  company,  without  a 
pass  or  payment  of  fare,  but  with  the  im- 
plied permission  of  the  conductor,  who  has 
neglected  to  enforce  the  rule.  Chattanooga 
Rapid  Transit  Co.  v.  Venable,  105  Tenn. 
460,  58  S.  W.  861,  51:  886 

57.  A  station  agent  traveling  to  his  home 
in  another  town  without  paying  fare,  sev- 
eral hours  after  his  duties  for  the  day  have 
ceased,  is  to  be  regarded  as  a  passenger,  and 
does  not,  by  reason  of  his  employment  by 
the  carrier  as  such  agent,  assume  the  risk 
of  injury  through  the  negligent  operation  of 
the  train.  Louisville  &  N.  R.  Co.  v.  Weaver, 
108  Ky.  392,  56  S.  W.  674,  50:  381 

58.  A  railroad  employee  gratuitously  car- 
ried by  a  train  toward  home  after  his  day's 
work  is  done,  when  the  ride  is  a  privilege 
incidental  to  his  confract  of  service,  with- 
out any  charge  or  deduction  from  his  wages, 
is  not  a  passenger,  but  is  a  fellow  servant 
of  the  trainmen.  lannone  v.  New  York,  N^ 
H.  &  H.  R.  Co.  21  R.  I.  452,  44  Atl.  592, 

46:  730 

(c)  Other  Persons. 

Erroneous  Instruction  as  to,  see  Appeal  and 

Error,    1025. 
Presumption  as   to,  see  Evidence,   259-261. 
For  Editorial  Notes,  see  infra,  IV.  §  12. 

59.  To  constitute  one  a  passenger  on  a 
train,  tne  knowledge  or  consent  of  the  car- 
rier, or  its  agent  in  charge  of  the  train,  is  es- 
sential, iinless  such  person  is  rightfully  on 
the  train.  Woolsey  v.  Chicago,  B.  &  Q.  R- 
Co.   30  Neb.   798,  58  N.  W.  444,  25:  79 


CARRIERS,  II.    a,  2. 


841 


60.  The  mere  failure  to  pay  fare  will  not 
prevent  a  person  from  being  entitled  to  the 
status  of  a  passenger,  where,  without  any 
attempt  on  his  part  to  defraud  the  carrier, 
the  conductor  has  failed  to  call  upon  hira  for 
the  fare.  Florida  S.  R.  Co.  v.  Hirat,  30  Fla. 
1,  11  So.  506,  16:  631 

61.  One  who  enters  and  rides  upon  a  car 
or  train  which  he  knows,  or  by  the  exercise 
of  reasonable  diligence  would  know,  is  pro- 
hibited from  carrying  passengers,  is  a  tres- 
passer, and  not  a  passenger;  and  the  only 
duty  of  the  railroad  company  toAvard  him 
is  to  abstain  from  wanton  or  reckless  injury 
to  him.  Purple  v.  Union  P.  R.  Co.  51  C.  C. 
A.    564,    114   Fed.    123,  57:  700 

62.  A  person  lawfully  on  a  car  and  en- 
titled to  transportation  is  a  passenger  en- 
titled to  recover  for  an  injury  through  the 
negligence  of  the  carrier  or  it;^  servants, 
whether  the  carrier  receives  an  agreed  com- 
pensation for  his  transportation,  or  is  com- 
pensated therefor  by  the  charge  for  the  car, 
or  for  transportation  of  property  in  his 
charge,  'or  receives  no  compensation  what- 
ever.' Gulf,  C.  &  S.  F.  R.  Co.  V.  Wilson,  79 
Tex.  371,  15  S.  W.  280,  11:  486 
With  knowledge  or  consent  of  carrier's  em- 
ployees. 

63.  A  person  cannot  claim  the  rights  of  a 
passenger  if  he  has  knowingly  induced  the 
conductor  of  a  train  to  violate  a  rule  of  the 
company  in  carrying  him  without  charge. 
McVeety  v,  St.  Paul,  M.  &  M.  R.  Co.  45 
Minn.  268,  47  N.  W.  809,  11:  174 

64.  One  who  pays  a  brakeman  on  a  pass- 
enger train  a  sura  of  money  to  be  carried 
to  a  certain  point,  and  is  told  to  ride  upon 
the  platform  of  the  baggage  car,  and  get 
off  the  train  at  all  stops,  and  keep  out  of 
sight,  and  who  follows  such  instructions,  is 
not  a  passenger.  Mendenhall  v.  Atchison, 
T:  &  S.  F.  R.  Co.  66  Kan.  438,  71  Pac. 
846,  61 :  120 

65.  One  who,  knowing  that  a  conductor 
has  no  authority  to  grant  free  transporta- 
tion, enters  and  rides  upon  his  train,  with 
the  deliberate  intention  not  to  pay  his  fare, 
under  an  agreement,  or  under  a  tacit  under- 
standing, with  the  conductor  that  he  shall 
ride  free,  commits  a  fraud  upon  the  rail- 
road company,  and  is  not  a  passenger,  but 
is  a  mere  trespasser,  to  whom  the  only  duty 
of  the  company  is  to  abstain  from  wilful 
or  reckless  injury.  Purple  v.  Union  P.  R. 
Co.  51  C.  C.  A.  564,  114  Fed.  123,  57:  700 

66.  A  passenger  on  a  freight  train  with 
t/he  conductor's  permission,  but  knowing 
that  he  is  violating  the  rules  of  the  road, 
assumes  the  risk  of  accidents.  Louisville  & 
N.  R.  Co.  V.  Hailey,  94  Tenn.  383,  29  S.  W. 
367.  27:  549 

67.  The  failure  of  the  conductor  of  a 
freight  train  which  is  not  accustomed  to 
carry  passengers  to  stop  it  in  the  night- 
time and  eject  from  the  caboose  a  cripple 
whose  presence  on  the  train  he  did  not  dis- 
cover until  it  was  well  under  way,  and 
whom  he  had  previously  refused  to  carry, 
will  not  make  the  latter  a  passenger  within 
the  rule  as  to  liabilities  of  a  carrier  to  pas- 
sengers. Atchison.  T.  &  S.  F.  R.  Co.  v. 
Headland,  IS  Colo.  477,  33  Pac.  185,    20:  822 


68.  A  person  riding  on  the  locomotive  of 
a  freight  train  without  the  conductor's 
knowledge  or  consent,  by  agreement  with 
the  fireman  to  shovel  coal  for  the  privilege 
of  riding,  is  not  a  passenger.  Woolsey  v. 
Chicago,  B.  &  Q.  R.  Co.  39  Neb.  798,  58  N. 
W.   444,  25 :  79 

69.  One  tiuveling  on  a  train  by  courtesy 
of  the  conductor,  without  paying  fare,  is 
not  deprived  of  the  character  and  rights  of 
a  passenger  by  the  fact  that  the  conductor, 
in  carrying  him  free,  is  violating  a  rule  of 
the  company.  Louisville  &  N.  R.  Co.  v. 
Weaver,  108  Ky.  392,  56  S.  W.  674,    50:  381 

70.  The  acceptance  of  free  transportation, 
which  a  railroad  company  is  prohibited, 
under  penalty,  from  granting,  does  not  de- 
prive one  of  the  character  of  a  bona  fide 
passenger,  or  the  protection  to  which  he  is 
entitled  as  such.  McNeill  v.  Durham  &  C. 
R.  Co.  135  N.  C.  682,  47  S.  E.  765,         67 :  227 

71.  One  who  is  on  a  freight  train  with  the 
knowledge  and  consent  of  the  agent  having 
charge  of  it  cannot  be  said  to  be  there 
wrongfully,  although  he  had  knowledge  that 
he  was  on  the  train  in  violation  of  the  rules 
of  the  company.  Whitehead  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.  99  Mo.  263,  11  S.  W.  751, 

6:  409 

72.  A  passenger  allowed  to  ride  on  a 
special  train,  who  has  no  notice  of  any  want 
of  authority  to  grant  the  permission,  wheth- 
er he  pays  fare  or  not,  in  the  absence  of  col- 
lusion between  him  and  the  conductor  to 
defraud  the  company  of  its  fare,  becomes  a 
passenger,  and  as  such  is  entitled  to  have 
the  train  on  which  he  travels  managed  with 
the  care  that  is  due  from  a  common  carrier 
to  passengers  on  a  train  of  that  character. 
Wagner  v.  Missouri  P.  R.  Co.  97  Mo.  512, 
10  S.  W.  486,  3:  156 
By  fraud  or  stealth. 

73.  The  relation  of  carrier  and  passenger 
is  not  established  between  a  railroad  com- 
pany and  one  who  gets  upon  a  passenger 
train  with  the  deliberate  purpose  not  to  pay 
his  fare,  and  adheres  to  that  purpose,  or 
who,  being  on  the  train  and  having  money 
with  him  with  which  he  could  pay  his  fare, 
falsely  and  fraudulently  represents  to  the 
conductor  that  he  is  without  means,  and 
thereby  induces  the  conductor  to  permit  him 
to  remain  on  the  train  without  paying  his 
fare.  Condran  v.  Chicago,  M.  &  St.  P.  R. 
Co.  32  U.  S.  App.  182,  14  C.  C.  A.  506,  67 
Fed.  522,  28:  749 

74.  The  rule  that  one  riding  upon  a  train 
by  fraud  or  stealth,  without  payment  of 
fare,  cannot  recover  for  injuries  not  due  to 
recklessness  or  wilfulness  of  the  company, 
is  not  modified  or  abrogated  by  McClain 
(Iowa)  Ann.  Code,  §  2002,  making  every 
railroad  company  liable  for  all  damages  sus- 
tained by  any  person  in  consequence  of  the 
neglect  of  agents,  or  by  mismanagement  of 
the  engineers  or  other  employees.  Id. 

75.  One  riding  on  a  railroad  train  by  fraud 
or  stealth,  without  the  payment  of  fare, 
takes  upon  himself  all  the  risk,  and,  if  in- 
jured by  an  accident  happening  to  the  train, 


342 


CAKRIERS,  II.  a,  2. 


not  due  to  recklessness,  or  wilfulness  on  the 
part  of  the  company,  cannot  recover.  Id. 
Person  with  ticket  on  wrong  train. 

76.  A  person  having  a  ticket  for  passage 
upon  a  railroad,  who  boards  a  freight  train 
which  does  not  carry  passengers,  believing 
the  ticket  good  on  that  train,  is  to  be  treat- 
ed as  a  passenger,  and  is  not  a  trespasser. 
Boggess  V.  Chesapeake  &  O.  R.  Co.  37  W. 
Va.  297,  16  S.  E.  525,  23:  777 

77.  One  who  boards  a  train  which  he 
should  know  does  not  stop  at  the  station 
for  which  he  has  a  ticket,  in  the  hope  that 
it  will  do  so  and  so  afford  him  an  oppor- 
tunity of  reaching  his  destination,  and  who 
refuses  to  pay  the  additional  fare  to  the 
first  stopping  place  upon  the  conductor's  de- 
mand, is  a  passenger  within  the  meaning  of 
a  statute  requiring  the  ejection  of  passen- 
gers at  usual  stopping  places.  St.  Louis  S. 
W.  R.  Co.  V.  Harper,  69  Ark.  186,  61  S.  W. 
911,  53:220 
Shipper  with  stock. 

For  Editorial  Notes,  see  infra,  IV.  §§  12,  20. 

78.  A  person  traveling  on  a  train  in  charge 
of  cattle  is  a  passenger  for  hire.  The  con- 
sideration for  his  passage  is  the  service  he 
renders  in  taking  care  of  the  cattle,  or  it  is 
found  in  the  charges  made  for  shipping  the 
cattle.  Missouri  P.  R.  Co.  v.  Ivey,  71  Tex. 
409,  9  S.  W.  346,  1 :  500 

79.  A  shipper  traveling  on  a  freight  car 
with  the  consent  of  the  carrier,  to  care  for 
his  stock,  is  regarded  as  a  payng  passen- 
ger. Illinois  C.  R.  Co.  v.  Beebe,  174  111.  13, 
50  N.  E.  1019,  43:  210 

(2)  When  Relation  Commences. 
For  Editorial  Notes,  see  infra,  IV.  §  12. 

80.  A  person  must  be  expressly  or  im- 
pliedly received  as  a  passenger  before  he  can 
sustain  that  relation  to  a  carrier.  Illinois 
C.  R.  Co.  V.  O'Keefe,  168  111.  115,  48  N.  E. 
294,  39 :  148 
Before  entering  train. 

For  Editorial  Nptes,  see  infra,  IV.  §  12. 

81.  The  duty  of  a  railroad  company  to  one 
as  a  passenger  has  not  arisen  when,  with  a 
passage  ticket  in  his  pocket,  he  is  crossing 
its  tracks  on  a  public  highway  for  the  pur- 
pose of  boarding  a  train  standing  on  the 
track  farthest  from  him,  and  when  he  has 
not  yet  reached  the  platform  provided  for 
passengers.  Chicago  &  E.  I.  R.  Co.  v.  Jen- 
nings, 190  111.  478,  60  N.  E.  818,  54:  827 

82.  One  holding  a  mileage  ticket  who, 
with  intent  to  board  a  train  standing  on  a 
siding  near  the  station,  without  going  to  the 
station,  is  compelled  to  cross  the  main  line, 
is  not  a  passenger  to  whom  the  rail'road 
company  owes  extraordinary  care  or  "dili- 
gence, but  is  entitled  only  to  ordinary  care 
as  one  of  the  general  public,  as  he  has  done 
nothing  to  notify  any  of  the  officers  or 
agents  of  the  defendant  company  that  he 
is  a  prospective  passenger.  Southern  R.  Co. 
V.  Smith.  30  C.  C.  A.  58,  52  U.  S.  App.  708. 
80  Fed.  292,  40:  740 

83.  A  person  does  not  become  a  passen- 
ger because  he  has  previously  obtained  a 
ticket,  and  is  on  the  premises  of  a  railroad 


company  designed  for  the  use  of  passengers, 
and  is  about  to  take  a  train,  where  he  is 
running  from  the  direction  of  a  public 
street,  across  the  premises,  outside  the  sta- 
tion, to  catch  a  train  about  to  start,  and  is 
struck  while  crossing  a  track  by  an  incom- 
ing train.  Webster  v.  Fitohburg  R.  Co.  161 
Mass.  298,  37  N.  E.  165,  24:  521 

84.  One  intending  to  take  passage  on  a 
railroad  train  cannot  claim  the  relation  of 
passenger,  so  as  to  require  the  company  to 
protect  him  from  the  assaults  of  strangers, 
by  resorting  to  its  premises  an  unreason- 
able time  before  the  departure  of  the  train, 
in  the  absence  of  an  agreement,  express  or 
implied,  on  its  part  to  do  so;  and,  when  the 
statute  fixes  the  time  during  which  the 
station  must  be  open,  that  time  will  be  re- 
garded as  the  reasonable  time  during  which 
the  carrier's  responsibility  exists.  Illinois 
C.  R.  Co.  V.  laloge,  113  Ky.  896,  69  S.  W. 
795,  62:  405 

85.  A  party  coming  to  a  railroad  station 
with  the  intention  of  taking  the  next  train 
is,  in  contemplation  of  law,  a  pa'ssenger, 
provided  his  coming  is  within  a  reasonable 
time  before  the  departure  of  the  train.  Phil- 
lips v.  Southern  R.  Co.  124  N.  C.  123,  32  S. 
E.  388,  45:  163 

86.  A  person  who  goes  to  a  flag  station  on 
a  railroad,  at  which  there  is  no  ticket  oflRce, 
for  the  purpose  of  boarding  a  train,  is,  upon 
properly  signifying  an  intention  to  get  upon 
a  passenger  train  which  has  actually 
stopped,  entitled  to  the  rights  of  a  passen- 
ger. Western  &  A.  R.  Co.  v.  Veils,  98  Ga. 
446,  26  S.  E.  483,  35:655 

87.  The  relation  of  common  carrier  and 
passenger  is  established  when  a  person  pur- 
chases a  ticket  at  the  station  or  depot  of  a 
railroad  company,  intending  to  be  a  passen- 
ger on  the  cars  of  the  company;  and  the 
company  is  required  to  exercise  reasonable 
care  to  protect  the  passenger  from  injury 
in  the  use  of  the  station  or  depot  for  the 
purposes  of  the  journey.  Exton  v.  Central 
R.  Co.  (N.  J.  Err.  &  App.)  63  N.  J.  L.  356, 
46  Atl.  1099,  56:  508 
After  entering  train. 

88.  All  passengers  actually  on  a  train, 
whether  the  same  is  moving  or  not,  and  pas- 
sengers who  have  left  the  train  at  the  ex- 
press or  implied  invitation  of  the  carrier,  for 
any  necessary  purpose  incident  to  their  jour- 
ney, are  passengers  "being  transported  over 
the  road,"  within  the  meaning  of  Neb.  Comip. 
Stat.  chap.  72,  art.  1,'§  3,  making  a  carrier 
liable  for  all  personal  damage  inflicted  on  a 
passenger  while  being  transported  over  its 
road.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler, 
li4  Neb.  636,  90  N.  W.  649,  57 :  890 

89.  The  relation  of  passenger  is  estab- 
lished when  one  has  safely  entered  a  passen- 
(Ter  car  with  the  intention  of  becoming  a 
passenger,  although  at  a  stopping  place  not 
a  station,  and  where  no  invitation  was  held 
out  to  take  trains,  but  where  they  were 
permitted  to  be  taken.  Dewire  v.  Boston  & 
M.  R.  Co.  148  Mass.  343,  19  N.  E.  523,  2:  166 

90.  The  holder  of  a  free  pass  on  a.  rail- 
road, who  gets  on  the  front  platform  of  a 
baggage  car  next  th/>  tender  when  the  train 


CARRIERS.  11.  a,  2. 


848 


is  in  motion  and  after  it  has  left  the  depot, 
and  then  tries  to  open  the  baggage-car  door, 
does  not  thereby  become  a  passenger  so  as 
to  make  the  railroad  company  liable  for  his 
protection  as  such,  when  he  is  killed  by  a 
collision  while  he  is  on  the  car  platform. 
Illinois  C.  R.  C!o.  v.  O'Keefe,  168  111  115,  48 
N.  E.  294,  39:  148 

91.  A  conductor's  knowledge  that  some 
one  has  boarded  his  train  while  in  motion 
by  getting  on  the  platform  between  the 
tender  and  baggage  car  is  not  sufficient  to 
show  that  he  has  accepted  him  as  a  passen- 
ger, when  he  does  not  know  who  the  person 
is  or  what  he  is  there  for.  Id. 
Before  entering  street  car. 

92.  The  relation  of  carrier  and  passenger 
does  not  exist  between  a  street  railway 
company  and  a  person  who  has  given  a  sig- 
nal, which  is  seen  and  responded  to.  for  a 
car  to  stop,  but  who  is  struck 'by  the  un- 
expected swinging  of  the  car  from  its 
proper  track  on  to  a  switch  track.  Donovan 
V.  Hartford  Street  R.  Co.  65  Conn.  201.  32 
Atl.  350,  29:297 

93.  A  woman  with  a  transfer  ticket  ap- 
proaching a  street  car  to  get  on,  when  she 
is  struck  by  a  piece  of  the  trolley  pole, 
which  breaks  while  the  motorman  is  trying 
to  change  it  to  the  other  end  of  the  car, 
is  a  passenger  to  wliom  the  high  degree  of 
care  which  a  common  carrier  owes  to  pas- 
sengers is  due.  Keator  v.  Scranton  Trac- 
tion Co.  191  Pa.  102,  43  Atl.  86,  44:  546 

94.  A  street  car  company  does  not  owe  to 
a  person  upon  a  street,  when  its  car  has 
stopped  to  receive  him  as  a  passenger,  the 
same  high  degree  of  care  with  respect  to  de- 
fects in  the  car,  while  he  is  approaching  the 
car  to  enter  it,  that  it  owes  to  passengers 
actually  on  board,  so  that  its  liability  for 
injury  to  such  a  person  by  the  fall  of  the 
trolley  pole  and  a  sign  board  cannot  be  de- 
termined by  the  application  of  the  rule  gov- 
erning the  relation  of  carrier  and  passenger. 
Duchemin  v.  Boston  Elev.  R.  Co.  186  Mass. 
3.53,  71  N.  E.  780.  66:  980 
While  on  gang  plank  of  vessel. 

95.  A  person  injured  by  the  slipping  of  a 
gang  plank  while  attempting  to  cross  it  in 
entering  a  steamer  to  take  passage  is  to  be 
regarded  as  a  passenger.  Rogers  v.  Kenne- 
bec Steamboat  Co.  86  Me.  261,  29  Atl.  1069, 

25:  491 

(3)  Termination  of  Relation. 

See  also  supra,  88;  infra,  549. 

For  Editorial  Notes,  see  infra,  IV.  §§  12,  25. 

96.  A  passenger  is,  whenever  the  perform- 
ance of  the  contract  of  carriage  in  a  usual 
and  proper  way  necessarily  involves  leaving 
the  vehicle  and  returning  to  it,  entitled  to 
protection  as  such,  as  well  while  so  leaving 
and  returning  as  at  any  other  time.  Dodge 
V.  Boston  &  B.  S.  S.  Co.  148  Mass.  207,  19 
N.  E.  373,  2:  83 

97.  The  relation  of  carrier  and  passenger 
exists  between  a  railroad  company  and  a 
passenger  on  a  train  which  is  temporarily 
stopped  by  a  burninu  tank  of  oil  on  the 
track,  during  which  time  passengers  on  the 


train  are  taken  to  a  piace  some  distance 
from  the  tank,  while  waiting  for  a  train  to 
receive  them  on  the  other  side  of  the  ob- 
struction. Conroy  v.  Chicago.  St.  P.  M.  & 
0.  R.  Co.  96  Wis.  243,  70  N.  W.  480,    38:  419 

98.  A  person  passing  from  a  railroad  sta- 
tion across  a  track  to  a  platform,  intending 
to  take  a  train  for  which  he  has  purchased 
a  ticket,  is  a  passenger  within  the  meaning 
of  Mass.  Pub.  Stat.  chap.  112,  §  212,  relating 
to  the  liability  of  a  railroad  company  for 
negligently  causing  the  death  of  a  passenger. 
Young  V.  New  York,  N.  H.  &  H.  R.  Co..  171 
Mass.  33,  50  N.  E.  455,  ^    41 :  193 

99.  A  passenger  on  a  railroad  train  does 
not  lose  his  character  as  such  by  alighting 
from  the  cars  at  a  regular  station  from  mo- 
tives of  either  business  or  curiosity,  al- 
though he  has  not  yet  arrived  at  the  termin- 
us of  his  jouniey.  Parsons  v.  New  York  C. 
&  H.  R.  R.  Co.  113  N.  Y.  355,  21  N.  E.  145, 

3:683 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler,  64 

Neb.  636,  90  N.  W.  649,  57:  890 

Contra,   De    Kay    v.    Chicago,    M.    &    St. 

P.  R.  Co.  41  Minn.  178,  43  N.  W.  182,     4:  632 

100.  A  passenger  who  leaves  his  car  of  his 
own  volition,  for  some  purpose  of  his  own, 
not  incident  to  the  journey  he  is  pursuing, — 
as,  for  instance,  to  get  a  drink  of  water 
while  the  train  is  standing  on  a  side  track, 
and  at  a  place  not  designed  for  t'he  discharge 
of  passengers, — cannot  chiini  the  pr>teotion 
of  Neb.  Comp.  Stat.  chap.  72,  art.  1,  §  3 
making  a  carrier  liable  for  all  personal  dam- 
age inflicted  on  a  passenger  beiqg  transport- 
ed. Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler, 
64  Neb.  636,  90  N.  W.  649,  57:890 

101.  A  passenger  who,  having  got  upon 
the  wrong  train,  voluntarily  gets  off  at  a 
point  not  a  static^,  upon  the  stopping  of 
such  train  by  the  conductor,  ana  walks 
along  the  track  towards  a  train  pointed  out 
by  the  conductor  as  one  which  will  carry 
him  towards  his  destination,  ceases  to  be  a 
passenger  after  leaving  the  train,  and  cannot 
recover  for  injuries  sustained  by  falling  into 
a  cattle  guard  upon  the  track.  Finnegan  v. 
Chicago,  St.  P.  M.  &  0.  R.  Co.  48  Minn.  378, 
51  N.  W.  122,  15:  399 

102.  If  the  performance  of  a  railroad  com- 
pany's contract  to  transport  a  passenger  is 
temporarily  suspended  by  a  defect  in  the 
roadbed,  he  is  entitled,  during  the  time  re- 
quired to  overcome  the  defect,  to  all  the 
rights  of  a  passenger  upon  a  moving  train, 
including  that  of  protection  from  the  wilful 
misconduct  of  the  company's  servants. 
Dwindle  v.  New  York  C.  &,H.  R.  R.  Co.  120 
N.  Y.  117,  24  N.  E.  319,  8:  224 

103.  A  railroad  company  owes  no  duty  to 
a  passenger  as  such  after  he  alights  from 
the  train  at  a  station,  and  proceeds  towards 
a  section  house  connected  with  the  station, 
for  the  purpose  of  engaging  in  his  regular 
business  of  a  peddler.  Krantz  v.  Rio  Grande 
W.  R.  Co.  12  Utah,  104,  41  Pac.  717,  30:  297 

104.  A  person  leaving  a  street  car,  who 
passes  behind  it  and  is  then  struck  by  a  car 
on  a  parallel  track,  is  no  longer  a  passenger 
to  whom  the  street  railway  company  owes 
the  extiaordinarv  degree   of  care  to   which 


344 


CARRIERS,  II.  a.  3. 


passengers  are  entitled,  but  is  to  be  deemed 
onlv  a  traveler  on  the  highway.  Chatta- 
nooga Electric  Ry.  v.  Boddy,  105  Tenn.  666, 
.58  S.  W.  646,  51 :  885 

105.  The  relation  of  a  passenger  is  termin- 
ated as  soon  as  he  steps  from  a  street  car 
upon  the  street,  and  does  not  continue  dur- 
ing his  passage  to  the  sidewalk.  Creamer  v. 
West  End  Street  R.  Co.  156  Mass.  320,  31  N. 
E.  391,  16:  490 

3.  Duty  to  Passengers;  Protection. 

a.  In  General;  Care  of  Passengers. 

Duty  to  Light  and  Keep  Open  Station,  see 

infra  II.  a,  9,  c. 
Measure  of  Damages  for,  see  Damages,  211, 

218. 
Recovery  for  Mental  Anguish  for  Failure  of 

Diity,  see  Damages  III.  o,  2,  c. 
Instruction  as  to  Damages,  see  Trial,  766. 
Proximate  Cause  of  Injury,  see  Proximate 

Cause,  73. 
Repeal    of   Act   Making   Liable   for   Injury, 

see  Statutes.  .569. 
See  also  supra.  20,  102;   infra,  200. 
For  Editorial  Notes,  see  infra,  TV.  §§  6,  11, 

16.  21. 

106.  The  relations  between  a  steamboat 
company  and  a  passenger  occupying  a  state- 
room are  those  that  exist  between  an  inn- 
keeper and  his  guest.  Adams  v.  New  Jersey 
Steamboat  Co.  151  N.  Y.  16.S.  45  N.  E.  365. 

.  34:  682 

107.  It  is  the  duty  of  a  transportation 
company  legitimately  to  inform  itself  con- 
cerning the  stages  of  water  on  a  route  over 
which  it  contracts  to  transport  a  passenger, 
and  he  may  rely  upon  tfe  carrier's  informa- 
tion concerning  the  practicability  and  feas- 
ibilitv  of  the  trip.  Smith  v.  North  Amer- 
ican Transp.  &  T.  Co.  20  Wash.  580.  56  Pac. 
372,  44:557 

108.  A  passenger  carrier  is  bound  to  make 
use  of  such  cars  and  appliances  as  have 
proved  by  experience  to  be  most  eflScacious 
in  known  use  in  the  same  business.  Palmer 
V.  Warren  Street  R.  Co.  206  Pa.  674,  56 
Atl.  49.  63:  507 

109.  A  railroad  company  cannot  subject 
passengers,  even  in  a  second-class  car,  to 
noxious  influences  not  necessarily  or  ordin- 
arily incident  to  such  travel, — such  as  hear- 
ing rough,  profane,  and  obscene  language, 
and  witnessing  acts  of  violence  and  drunken- 
ness which  the  company,  by  the  exercise  of 
proper  care  and  due  reirard  for  the  welfare 
of  passengers,  could  prevent.  St.  Louis,  A. 
&  T.  R.  Co.  V.  Mackie.  71  Tex.  491,  9  S.  W. 
451.  1:G67 

110.  A  street  car  conductor's  knowledge  of 
the  peculiar  sensitiveness  of  a  lady  passen- 
ger does  ndt  increase  the  carrier's  obliga- 
tion toward  her,  although,  in  case  of  a 
■wron?  toward  her,  the  carrier  will  be  liable 
for  the  actual  consequences,  even  if  the  ef- 
fect would  have  been  less  upon  a  normal 
person.  Spade  v.  Lvnn  &  B.  R.  Co.  172 
Mass.  48S.  52  X.  E.  747,  4.3:  8.32 

111.  It  i=  the  duty  of  a  carrier  to  protect 


a  passenger  against  any  injury  from  the 
negligence  or  wilful  misconduct  of  its  serv- 
ants and  of  his  fellow  passengers  and  stran- 
gers, so  far  as  practicable.  Gillingham  v. 
Ohio  River  R.  Co.  35  W.  Va.  588,  14  S.  E. 
243,  14:  798 

Passenger  entering  wrong  car. 

112.  The  conductor  of  a  passenger  train  is 
under  no  obligation  to  place  upon  the  right 
car  a  passenger  who  has  entered  the  wrong 
one  by  mistake.  Illinois  C.  R.  Co.  v.  Har- 
per, 83  Miss.  560,  35  So. -764,  64:  283 
Duty  to  transport  generally. 

Punitive  Damages  for  Failure,  see  Damages, 

68-70. 
Damages  for  Refusal,  see  Damages,  210. 
Form   of   Action   for   Failure   of   Duty,   see 

Election  of  Remedies,  24,  25. 

113.  The  bad,  dilapidated,  and  ruinous 
condition  of  a  railroad,  and  the  old,  worn, 
and  bad  condition  of  its  two  engines,  render 
the  company  liable  for  compensatory  dama- 
ges to  a  passenger  whom  it  was  unable  to 
carry  in  accordance  with  its  contract  on  a 
return  trip,  because  one  of  its  engines  had 
broken  down  while  the  other  was  in  the 
shop  for  repairs,  although  the  company  was 
poor  and  struggling  for  existence  and  ex- 
pending all  its  earnings  and  more  oji  the 
road.  Hanslev  v.  Jamesville  &  W.  R.  Co. 
115  N.  C.  602",  117  N.  C.  565,  20  S.  E.  628, 
23  S.  E.  443,  32:  543 

114.  On  the  refusal  of  a  person  to  take  a 
special  train  which  he  has  hired,  unless  the 
carrier  will  guarantee  to  reach  the  destina- 
tion by  a  certain  time,  the  latter  is  exoner- 
ated from  any  liability  except  to  return  the 
money  which  has  been  paid  on  the  contract. 
Wilcox  V.  Richmond  &  D.  R.  Co.  8  U.  S.  App. 
118,  3  C.  C.  A.  73,  52  Fed.  264,  17:  804 
Leaving  before  advertised  time. 

115.  The  holder  of  a  steamboat  ticket  can- 
not recover  damages  because  the  boat  leaves 
before  the  advertised  time  and  before  he  is 
aboard,  if,  before  it  leaves,  the  government 
inspector  has  refused  to  permit  any  more 
persons  to  get  aboard  because  the  number 
permitted  by  its  license  has  been  reached. 
Hughson  V.  Winthrop  Steamboat  Co.  181 
Mass.  325,  64  N.  E.  74,  58:  432 
On  abandoning  trip. 

116.  A  steamer  compelled  to  abandon  for 
the  season  its  trip  from  Seattle  to  Dawson 
after  it  reaches  Ft.  Yukon,  because  of  the 
low  stage  of  the  water  in  the  Yukon  river, 
owes  to  a  passenger  whom  it  has  agreed  to 
transport  to  Dawson  by  September  15  of  the 
current  year  the  duty  of  bringing  him  back 
to  Seattle  without  charge,  and  has  no  right 
to  leave  him  where  he  will  be  forced  to  re- 
main over  winter  in  the  Alaskan  climate,  to 
await  the  convenience  of  the  carrier  for  com- 
pleting the  transportation  the  following 
summer.  Smith  v.  North  American  Transp. 
&  T.  Co.  20  Wash.  580,  56  Pac.  372,  44:  567 
Riding  in  smoking  or  second-class  car. 

See  also  infra,  143. 

117.  A  passenger  who,  without  protest, 
obeys  the  directions  of  a  porter  to  ride  in 
the  smoking  car,  cannot  hold  the  carrier 
liable  for  the  discomfort  thorebv  caused  to 


CARRIERS,  II.  a.  3. 


345 


him,  although  his  ticket  entitles  him  to 
first-class  passage.  Brezewitz  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.  75  Ark.  242,  87  S.  W. 
127,  70:  212 

118.  Where  a  man  in  the  exercise  of  such 
care  as  a  prudent  man  would  ordinarily 
exercise,  on  paying  for  first-class  tickets  for 
himself  and  fa-mily,  receives  second-class 
tickets  without  examination,  and,  on  offer- 
ing them  to  the  conductor,  is  compelled, 
with  his  family,  to  go  into  and  ride  in  a 
second-class  car,  whereby  they  are  humiliat- 
ed and  mjured,  he  can  recover  for  the  phys- 
ical and  mental  injuries  which  they  sus- 
tained. St.  Louis,  A.  &  T.  R.  Co.  v.  Mackie, 
71  Tex.  491,  9  S.  W.  451,  1:667 

119.  A  person  compelled  to  ride  in  a  sec- 
ond-class car  when  he  had  paid  for  first- 
class  tickets,  although  by  mistake,  or  other- 
wise, second-class  tickets  had  been  given 
him,  is  not  prevented  from  recovering  for 
damages  sustained  by  the  fact  that  he  rC' 
fused  the  conductor's  offer  to  ride  in  the 
first-class  car  on  payment  cf  1  cent  per  mile 
in  addition.  Id. 
Duty  to  deliver  telegrams. 

Burden  of  Proof  as  to,  see  Evidence,  291. 

120.  A  steamship  company  is  not,  merely 
by  reason  of  its  relation  as  carrier  to  its 
passengers,  bound  to  receive  telegrams  to  be 
delivered  to  them.  Davies  v.  Eastern 
Steamboat  Co.  94  Me.  379,  47  Atl.  896, 

53:239 

121.  A  steamship  company  is  not  liable 
for  the  nondelivery  to  a  passenger  of  a  tele- 
gram which  the  captain  has  taken  for  him, 
where  no  habit  or  custom  is  shown, — no 
holding  out  to  the  world  of  the  captain  as 
having  authority  to  do  such  an  act.  Id. 
Duty  to  watch  sleeping  car. 

122.  A  corporation  engaged  in  running 
sleeping  coaches,  with  sections  separated 
from  the  aisle  only  by  curtains,  is  bound  to 
have  an  employee  charged  with  the  duty  of 
carefully  and  continually  watching  the  in- 
terior of  the  car  while  the  berths  are  occu- 
pied by  sleepers.  Carpenter  v.  New  York, 
N.  H.  &  H.  R.  Co.  124  N.  Y.  53,  26  N.  E. 
277,  11:759 
Communication  of  disease. 

123.  A  railroad  company  is  not  liable  for 
the  communication  to  a  passenger  of  a  con- 
tagious disease  from  its  railroad  ticket 
agent,  if  neither  the  company  nor  any  of 
its  superior  officers  had  any  knowledge  that 
he  had  such  disease.  Long  v.  Chicago,  K. 
&  W.  R.  Co.  48  Kan.  28,  28  Pac.  977,  15:  319 
Cutting  off  car. 

Punitive  Damages  for,  see  Damages,  84. 
Proximate  Cause  of  Injury  by,  see  Proxi- 
mate Cause,  72. 
'124.  Cutting  off  a  sleeper  from  a  train  and 
leaving  it  on  a  siding  late  at  night,  without 
notice  to  passengers  who  have  entered  it 
while  it  was  attached  to  the  train  on  being 
informed  by  the  carrier's  servant  that  the 
sleeper  would  go  with  that  train,  renders 
the  carrier  liable  for  the  resulting  damages 
to  a  passenger  who  is  thus  left  with  a  sick 
child,  while  their  baggage,  including  medi- 
cine, has   been   carried   off   upon   the   train. 


Norfolk  &  W.  R.  Co.  v.  Lipscomb.  90  Va. 
137,  17  S.  E.  809,  20:  817 

Medical  services. 

125.  The  mistake  of  a  ship's  physician 
in  giving  out  medicines  will  not  render  the 
shipowner  liable,  where  it  has  complied  with 
a  statute  requiring  it  to  employ  a  competent 
physician  duly  qualified,  and  supply  him 
with  proper  and  necessary  medicines,  and 
furnish  him  a  proper  place  in  which  to  keep 
them.  Allen  v.  State  S.  S.  Co.  132  N.  Y.  91, 
30  N.  E.  482,  15:  166 

126.  The  owner  of  a  vessel  carrying  emi- 
grants, who  has  provided  a  competent  sur- 
geon under  act  of  Congress  of  August  2, 
1882  (22  U.  S.  Stat,  at  L.  188,  chap.  374,  U. 
S.  Comp.  Stat.  1901,  p.  2935),  is  not  liable 
for  the  want  of  care  of  such  surgeon  in  per- 
forming an  operation.  O'Brien  v.  Cunard 
Steamship  Co.  154  Mass.  272,  28  N.  E.  266, 

13:  329 
Injury  by  stranger. 
Evidence    of   Other    Scuffling   by    Hackmen 

Causing  Injury,  see  Evidence,  1969. 
See  also  supra.  111. 

127.  A  street  railway  company  is  not 
liable  for  injury  to  a  passenger  caused  by 
iron  falling  from  a  canal  bridge  belonging 
to  the  state  and  over  which  the  railroad 
company  has  no  control,  but  which  it  is 
necessary  to  cross  on  its  route,  if  the  com- 
pany has  not  been  guilty  of  negligence  in 
failing  to  discover  the  defect.  Birmingham 
V.  Rochester  City  &  B.  R.  Co.  137  N.  Y.  13, 
32  N.  E.  995,  18:  764 

128.  A  railroad  company  is  liable  for  in- 
juries to  a  passenger  at  its  station,  caused 
by  scuffling  cabmen,  even  if  the  danger 
arose  from  the  acts  and  conduct  of  intruders 
or  strangers,  if  such  acts  and  conduct  were 
so  continued  and  so  notorious  that  the  serv- 
ants of  the  defendant  company  in  charge  of 
the  depot  and  the  passageways  thereof  de- 
voted to  the  use  of  passengers  knew  of  such 
acts  and  conduct,  or  should  have  known  of 
them  and  of  the  danger  arising  therefrom. 
Exton  V.  Central  R.  Co.  (N.  J.  Err.  & 
App.)  63  N.  J.  L.  356,  46  Atl.  1099,    56:  508 

129.  A  railroad  company  is  not  liable  for 
an  injury  to  a  passenger  caused  by  the 
grossly  criminal  act  of  a  stranger  in  letting 
off  the  brakes  on  loaded  cars  standing  on  a 
switch  and  closing  the  switch,  which  had 
been  left  open  to  derail  the  cars  if  they  got 
loose,  on  account  of  the  cars  running  down 
grade  and  out  on  the  main  track,  causing  a 
collision,  where  there  was  no  negligence  in 
failing  to  discover  the  mischief  or  prevent 
its  effect.  Fredericks  v.  Northern  C.  R.  Co. 
157  Pa.  103,  27  Atl.  689,  22:  306 

130.  The  unusual,  rude,  and  hasty  act  of 
a  stranger  in  rushing  through  a  door  while 
hurrying  to  take  a  train,  thereby  violently 
striking  a  person  on  the  other  side,  does  not 
i^'ender  the  carrier  liable.  Graeff  v.  Philadel- 
phia &  R.  R.  Co.  161  Pa.  230,  28  Atl.  1107, 

23:  606 

131.  A  carrier  is  liable  for  injury  to  a  pas- 
senger by  a  third  person  whenever  it  knows, 
or  has  opportunity  to  know,  of  a  threat- 
ened injury  from  such  source,  whether  the 
third  person  is  a  passenger  or  not,  or  when 


346 


CARRIERS,  II.  a,  8. 


the  circumstances  are  such  that  injury  to 
a  passenger  from  such  a  source  may  reason- 
ably be  anticipated,  and  proper  precautions 
are  not  taken  to  prevent  the  injury.  Savan- 
nah, F.  &  W.  R.  Co.  V.  Bo  vie,  115  Ga.  836, 
42  S.  E.  242,  *  59:  104 

Injury  by  tramp  stealing  ride. 

132.  The  presence  upon  a  train  of  two 
negro  tramps,  secreted  and  stealing  a  ride 
thereon,  is  not  alone  sufficient  to  cause  the 
emoloyees  in  charge  of  the  train  to  suspect 
that  such  tramps  are  armed  with  deadly 
weapons,  and  to  anticipate  that  when 
brought  into  the  train  under  arrest  they 
may  endeavor  to  escape,  and,  while  an  em- 
ployee is  attempting  to  prevent  the  escape, 
make  a  murderous  assault  with  such 
weapons  upon  one  to  whom  the  railroad 
company  owes  the  duty  of  protection,  and 
who  is  taking  no  part  in  the  effort  to  pre- 
vent the  escape.  Savainnah,  F.  &  W.  R.  Co. 
V.  Boyle,  115  Ga.  836,  42  S.  E.  242,      59:  104 

133.  A  carrier  is  not  liable  for  the  shoot- 
ing of  a  passenger  by  negro  tramps  en- 
deavoring to  escape  after  having  been 
brought  into  the  train  under  arrest  for 
stealing  a  ride,  simply  becaiise  the  em- 
ployees failed  to  search  and  bind  them, 
where  it  does  not  appear  that  there  was 
anything  in  the  circumstances  under  which 
the  tramps  were  arrested,  or  in  their  man- 
ner, to  cause  the  employees  to  apprehend 
that  they  were  dangerous  characters,  or 
armed  with  deadly  weapons,  or  likely  to  re- 
sort to  violence  in  an  effort  to  escape.  Id. 
Injury  by  other  passenger. 

See  also  supra,  111. 

134.  A  carrier's  liability  for  the  miscon- 
duct of  a  passenger  because  of  the  injury 
to  another  passenger  arises  only  when  the 
carrier  or  his  servants  could  have  prevented 
the  injury,  but  failed  to  interfere  to  avert 
it,  with  knowledge,  or  upon  facts  which 
ought  to  have  imparted  knowledge,  that  the 
injury  was  threatened.  Tall  v.  Baltimore 
Steam  Packet  Co.  90  Md.  248,  44  Atl.  1007' 

47:  120 

135.  The  rule  that  a  carrier  is  charged 
with  the  highest  degree  of  care  consistent 
with  the  nature  of  his  undertaking,  as  be- 
tween him  and  his  passenger,  in  respect  to 
the  acts  or  omissions  of  the  carrier  and  his 
servants,  does  not  extend  to  the  matter  of 
the  carrier's  liability  for  injuries  to  passen- 
gers by  acts  of  fellow  passengers  or  stran- 
gers. Id. 

136.  A  lady  passenger  whose  light,  gauzy 
summer  dress  is  ignited  on  an  open  street 
car  by  a  match  carelessly  thrown  by  an- 
other passenger  after  lighting  a  cigarette 
cannot  hold  the  street  railway  company 
liable  for  her  injuries,  where  the  servant  in 
charge  of  the  car  was  not  charoreable  with 
anv  negligence.  Sullivan  v.  .Jefferson  Ave. 
R.'^Co.  133  Mo.  1,  34  S.  W.  -566,  32:  167 

137.  The  lawfulness  of  the  act  of  a  passen- 
ger on  an  excursion  boat  in  using  his  gun 
with  a  loaded  shell  will  not  excuse  the  own- 
ers of  the  boat  from  liability  for  an  injury 
resulting  from  such  passenger's  negligence 
or  lack  of  caution,  provided  his  action  is 
Buch  as  to  excite  apprehension  in  a  reason- 


ably prudent  person.  West  Memphis  Pack- 
et Co.  V.  \Yiiite,  99  Tenn.  256,  41  S.  W. 
583,  38 :  427 

138.  The  owner  of  a  steamboat  is  required 
to  exercise  the  utmost  vigilance  and  dili- 
gence in  protecting  its  passengers  from  in- 
juries by  the  negligent  and  careless  use  of 
a  loaded  gun  exhibited  by  another  passen- 
ger, where,  under  all  the  circumstances, 
such  owner  or  his  officers  and  agents  might 
reasonably  expect  or  anticipate  the  injury. 

Id. 
Injury  by  mail  agent. 

Evidence  of  Other  Accidents  by  Throwing 
of  Mail  Bag,  see  Evidence,  1970,  1971. 

139.  A  railroad  company  is  liable  for  the 
negligence  of  a  mail  agent  in  throwing  a 
mail  sack  upon  a  station  platform,  causing 
the  injury  of  a  person  thereon,  although  the 
company  has  no  right  to  interfere  with  the 
discharge  of  his  duties,  if  it  had  notice  of 
his  practice  to  throw  sacks  in  this  way. 
Galloway  v.  Chicago,  M.  &  St.  P.  R.  Co.  56 
Minn.  346,  57  N.  W.  1058,  23:  442 
Homicide  of  passenger. 

See  also  infra,  264. 

140.  The  murder  of  a  passenger  when 
asleep  in  a  sleeping  car,  by  some  intruder, 
stranger,  or  fellow  passenger,  does  not  ren- 
der the  carrier  liable,  if  the  carrier  or  its 
employees  did  not  know  of  an  impending 
danger  and  there  were  no  circumstances  to 
arouse  their  suspicions.  Ball  v.  Chesapeake 
&  O.  R.  Co.  93  Va.  44,  24  S.  E.  467,    32:  792 

b.  Abuse. 

See  also  infra,  182. 

By  employee. 

Punitive  Damages  for,  see  Damages,  71. 

141.  There  is  an  implied  contract  on  the 
part  of  a  common  carrier  that  a  passenger 
shall  receive  proper,  polite,  and  courteous 
treatment  from  its  employees.  Knoxville 
Traction  Co.  v.  Lane,  103  Tenn.  376,  53  S. 
W.  557,  46:  549 

142.  The  cursing,  abuse,  and  maltreat- 
ment of  a  person  by  an  agent  of  an  express 
company,  immediately  after  refunding  to 
such  person  overcharges  which  he  had  come 
to  the  office  to  obtain,  and  the  delivery  of 
a  receipt  therefor,  are  part  of  the  res  gestce 
and  makes  the  company  liable  for  the  tort. 
Richberger  v.  American  Exp.  Co.  73  Miss. 
161,  18  So.  922,  31:390 

143.  A  railroad  passenger  holding  a  first- 
class  ticket  may  recover  damages  from  the 
company  if  his  request  to  the  conductor  for 
a  seat  in  a  first-class  coach  is  met  by  an  ex- 
plosion of  profane  and  contemptuous  wrath, 
and  he  is  compelled  to  stand  although  pas- 
sengers in  the  car  ai'e  occupying  more  seats 
than  they  are  entitled  to.  Louisville,  N.  O. 
&  T.  R.'Co.  V.  Patterson,  69  Miss.  421,  13 
So.  697.  22:  259 

144.  Injuries  to  the  feelings  and  sensibil- 
ities of  a  woman  of  good  character  while  a 
passenger  on  a  street  car,  caused  by  insult- 
ing and  indecent  language  used  to  and  about 
her  by  one  of  the  carrier's  employees  in 
charge  of  the  car.  lenders  the  carrier  liabla 


CARRIERS.  II.  a,  3. 


347 


for  damages,  irrespective  of  any  negligence 
in  employing  the  servant  or  of  any  author- 
ization or  ratification  of  his  conduct.  Knox- 
ville  Traction  Co.  v.  Lane,  103  Tenn.  376,  53 
S.  W.  557,  46:  549 

145.  For  abuse  and  defamation  of  a  pas- 
senger by  the  driver  of  a  street  car,  who 
charges  the  passenger  with  having  given  him 
counterfeit  money  and  threatens  to  have 
him  arrested,  the  street  car  company  may 
be  held  liable.  Lafitte  v.  New  Orleans  City 
&  L.  R.  Co.  43  La.  Ann.  34,  8  So.  701, 

12:  337 

146.  The  fact  that  a  street  car  conductor 
acts  maliciously  in  calling  a  passenger  a 
deadbeat  when  asked  for  change  due  her 
does  not  absolve  the  company  from  liability 
for  his  act,  since  it  is  done  in  the  course  of 
his  employment,  and  constitutes  a  breach  of 
the  company's  duty  to  protect  thej)assenger 
from  such  insult.  Gillespie  v.  Brooklyn 
Heights  R.  Co.  178  N.  Y.  347,  70  N.  E.  857, 

66:  618 
By  fellow  passenger. 
Measure  of  Damages  for,  see  Damages,  215. 

147.  Insult  to  and  abuse  of  a  passenger  by 
a  drunken  and  disorderly  fellow  passenger, 
which  the  conductor  permits  to  continue  in 
his  presence  without  interference,  renders 
the  carrier  liable  to  damages.  Lucy  v.  Chi- 
cago G.  W.  R.  Co.  64  Minn.  7,  65  N.  W.  944, 

31:551 

c.  Assault. 

Evidence  of  Abusive  Language  by  Passen- 
ger on  Other  Occasion,  see  Evidence, 
1953. 

Evidence  as  to  Vaccination  of  Passenger,  see 
Evidence,  2177. 

See  also  infra,  188. 

By  fellow  passenger  or  stranger. 

See  also  supra,  84. 

For  Editorial  Notes,  see  infra,  IV.  §  16. 

148.  A  railroad  company  is  bound  to  exer- 
cise reasonable  care  to  protect  its  passen- 
gers from  assault  and  injury  by  strangers; 
and  neglect  by  its  servants  to  exercise  such 
care,  resulting  in  injury  to  its  passengers, 
establishes  liability  to  respond  in  damages. 
Exton  V.  Central  R.  Co.  (N.  J.  Err.  &  App.) 
63  N.  J.  L.  356,  46  Atl.  1099,  56:  508 

149.  A  railroad  company  is  bound  to  use 
extraordinary  diligence  to  protect  a  passen- 
ger, while  in  transit,  from  violence  or  in- 
jury by  third  persons.  Brunswick  &  W.  R. 
Co.  V.  Ponder,  117  Ga.  63,  43  S.  E.  430, 

60:  713 

150.  A  common  carrier  is  required  to  pro- 
tect a  passenger  from  an  unprovoked  as- 
sault of  a  fellow  passenger,  if  the  conductor 
knows  that  it  is  threatened  and  can  pre- 
vent it  with  the  assistance  of  employees 
and  willing  passengers.  Illinois  C.  R.  Co.  v. 
Minor,  69  Miss.  710,  11  So.  101,  16:627 

151.  A  railroad  company  is  liable  for  in- 
jury to  a  passenger  by  a  missile  thrown 
through  the  window  by  fellow  passengers 
who  had  just  alighted,  where  its  servants 
knew  that  such  passengers  were  intoxicated 
and  had,  before  leaving  the  train,   insult- 


ed and  mistreated  the  other  passengers,  and 
had  threatened  that  when  they  reached  their 
station  they  would  be  revenged  upon  their 
fellow  passengers  because  the  latter  had 
interfered  with  their  boisterous  and  dis- 
orderly conduct.  Spangler  v.  St.  Joseph  & 
G.  L  R.  Co.  68  Kan.  46,  74  Pac.  607,      63:  634 

152.  Failure  of  employees  of  a  street  rail- 
way company  to  overpower  or  remove  from 
the  car  a  drunken  passenger  whose  conduct 
is  such  as  to  indicate  danger  to  other  pas- 
sengers if  he  is  permitted  to  ride  unre- 
strained is  negligence  which  will  render  the 
company  liable  for  injuries  which  he  in- 
flicts upon  a  passenger,  although  there  is 
nothing  to  indicate  that  the  one  injured 
is  in  especial  peril.  United  Railways  & 
E.  Co.  V.  State  Use  of  Deane,  93  Md.  619, 
49  Atl.   923,  54:942 

153.  Permitting  a  drunken  passenger  who 
has  been  removed  from  a  street  car  for 
turbulence  and  an  assault  upon  a  fellow 
passenger,  to  return  to  and  remain  upon  the 
car  without  further  effort  to  remove  him, 
although  his  turbulence  continues,  is  negli- 
gence which  will  render  the  street  car  com- 
pany liable  for  injuries  inflicted  by  him 
upon  a  passenger.  Id. 

154.  It  is  the  duty  of  a  railroad  company 
to  protect  passengers  upon  its  trains  from 
the  misconduct  and  assaults  of  fellow  pas- 
sengers, not  only  while  such  fellow  passen- 
gers remain  on  the  train,  but  also  after  they 
have  alighted  therefrom  at  the  station  of 
their  destination,  whenever  the  company 
knows  of  the  threatened  injury,  or  might 
reasonably  have  anticipated  that  under  all 
the  circumstances  it  would  occur.  Spangler 
v.  St.  Joseph  &  G.  I.  R.  Co.  68  Kan.  46,  74 
Pac.  607,  63:  634 

155.  Allowing  passengers  to  play  cards  in 
the  smoking  room  of  a  steamboat,  in  viola- 
tion of  a  rule  of  the  carrier,  does  not  make 
the  carrier  liable  for  the  injury  to  another 
passenger  who  is  shot  during  a  quarrel 
which  occurs  during  the  game.  Tall  v. 
Baltimore  Steam  Packet  Co.  90  Md.  248,  44 
Atl.  1007,  47:  120 

156.  A  colored  passenger  upon  a  railway 
train  is  entitled  to  the  same  protection 
against  drunken  and  violent  men  seeking  to 
molest,  outrage,  and  humiliate  him  as  a 
white  passenger.  This  protection  must  bo 
afforded  by  the  conductor  to  the  extent  of 
all  the  power  with  which  he  is  clothed  by 
the  company  or  by  the  law;  and  his  failure 
to  afford  it  when  he  has  knowledge  that 
there  is  occasion  for  his  interference  will 
subject  the  company  to  liability  in  dam- 
ages. Richmond  &  D.  R.  Co.  v.  JeflFerson,  80 
Ga.  554,  16  S.  E.  69,  17:  571 
By  striker. 

For  Editorial  Notes,  see  infra,  IV.  §  16. 

157.  The  attempt  of  a  street  railway  com  - 
pany  to  operate  its  cars  during  a  strike 
of  its  employees  is  not  negligence  so  as  to 
make  it  liable  for  an  injury  to  a  passenger 
struck  by  a  stone  thrown  from  the  street 
into  the  car  by  a  strike  sympathizer  in 
no  way  under  the  control  or  direction  of  the 
company.  Fewings  t.  Mendenhall,  88  Minn. 
336,  93  N.  W.  127,  60:  601 


348 


CARRIERS,  II.  a,  8. 


158.  Failure  of  a  street  railway  company, 
attempting  to  operate  its  cars  during  a 
strike  of  its  employees,  to  pull  down  the 
blinds  of  a  car  or  stretch  a  heavy  canvas 
over  the  window  outside  the  car,  is  not  such 
negligence  as  will  justify  a  recovery  of 
damages  by  a  passenger  injured  by  a  stone 
thrown  into  the  car  by  a  strike  sympa- 
thizer. Id, 
By  employees. 
Measure  of  Damages  for,  see  Damages,  72- 

75,  212,  213. 
Burden  of  Proof  as  to,  see  Evidence,  472. 
Question  for  Jury  as  to,  see  Trial,  194,  303. 
For  Editorial  Notes,  see  infra,  IV.  §  16. 

1.59.  A  common  carrier  is  liable  for  a 
malicious  assault  made  by  its  employee  up- 
on a  passenger.  Haver  v.  Central  R.  Co.  (N. 
J.  Err.  &  App.)  62  N.  J.  L.  282.  41  Atl.  916, 

43:  84 

160.  An  imjustifiable  assault  upon  a  pas- 
senger by  a  railroad  employee  who  owes 
him  the  duty  of  protection  renders  the  car- 
rier responsible  for  the  injuries  caused 
thereby.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Henry,  55  Kan.  715,  41  Pac.  952,         29:  465 

161.  A  passenger  on  whom  a  drunken  man 
is  thrown  by  being  jostled  while  the  con- 
ductor is  removing  another  drunken  man 
from  the  car.  rightfully  and  without  negli- 
gence, has  no  right  of  action  therefor 
against  the  carrier.  Spade  v.  Lynn  &  B.  R. 
Co.  172  Mass.  488,  52  N.  E.  747,  43:  832 

162.  The  porter  of  a  sleeping  or  drawing- 
room  car  which  forms  a  part  of  the  train  of 
a  railroad  company  tinder  a  contract  with 
its  owner,  who  sells  separate  tickets  for 
privileges  upon  such  cars,  and  who  fur- 
nishes his  own  servants  to  collect  tickets 
and  assist  passengers,  is  the  servant  of  the 
railroad  company,  for  whose  acts  done  in 
the  performance  of  a  contract  to  carry  a 
passenger  it  is  responsible,  notwithstanding 
an  agreement  which  may  be  made  upon  the 
subject  between  the  company  and  the  owner 
of  the  car.  Dwindle  v.  New  York  C.  &  H. 
R.  R.  Co.  120  N.  Y.  117,  24  N.  E.  319,    8:  224 

163.  It  is  no  defense  to  a  suit  against  a 
carrier  to  recover  damages  for  an  assault 
committed  by  its  servant  upon  a  passenger, 
that  at  the  time  the  assavilt  was  committed 
the  servant  had  finished  the  temporary  and 
particular  service  which  he  had  undertaken 
to  render  to  the  passenger,  if  the  contract 
of  carriage  was  not  yet  performed,  and  the 
duty  still  rested  on  the  carrier  to  protect 
the  passenger  from  the  violence  of  its  serv- 
ants. Id. 

164.  Reccivt>rs  of  a  railroad  company  are 
liablo  for  injuries  to  a  passenger  on  a  train, 
resulting  from  the  wilful  or  malicious  acts 
of  the  conductor.  Dillingham  v.  Anthony. 
73  Tex.  47,  11  S.  W.  139,  3:  6.34 

165.  A  carrier  is  liable  for  an  unlawful 
and  improper  act,  and  for  the  natural  and 
legitimate  consequences  thereof,  which  is 
committed  by  its  servant  towards  its  pas- 
senger while  such  servant  is  engaged  in 
performing  a  duty  which  the  carrier  owes 
to  the  passenger,  no  matter  what  the  mo- 
tive is  which  incites  the  commission  of  the 


act.     Dwindle  v.  New  York  C.  &  H.  R.  R. 
Co.  120  N.  Y.  117,  24  N.  E.  319,  8:  224 

166.  The  liability  of  a  railroad  company 
for  injury  to  a  trespasser  on  a  freight  car  by 
a  brakeman  is  not  founded  upon  the  duty 
and  obligation  of  a  common  carrier,  but  is 
referable  to  the  law  of  agency.  Farber  v. 
Missouri  P.  R.  Co.  116  Mo.  81,  22  S.  W.  631, 

20:  350 

167.  A  boy  upon  whom  a  locomotive  en- 
gineer throws  hot  water  and  steam  to  drive 
him  off  from  the  engine  is  entitled  to  re- 
cover from  the  railroad  company  for  the 
assault,  regardless  of  injuries  which  resulted 
from  his  attempt  to  get  off  in  consequence 
of  such  act.  Galveston,  id.  &  S.  A.  R.  Co. 
V.  Zantzinger,  92  Tex.  365,  48  S.  W.  563, 

44:  553 

168.  The  wrongful  act  of  a  brakeman  in 
kicking  a  boy  off  from  a  train  in  rapid  mo- 
tion for  failure  to  pay  his  fare  is  within  the 
scope  of  his  employment,  so  as  to  render  the 
railroad  company  liable  for  the  act  where 
the  brakeman's  duties  included  the  assist- 
ance of  the  conductor  in  collecting  fares 
and  ejecting  persons  who  had  no  right  to 
ride;  but  if  he  kicked  the  boy  merely  for 
the  purpose  of  injuring  him,  and  not  with 
the  purpose  of  ejecting  him  from  the  train, 
the  employer  is  not  liable.  Smith  v.  Louis- 
ville &  N.  R.  Co.  95  Ky.  11/23  S.  W.  652, 

22:  72 

169.  A  railroad  company  is  not  liable  for 
injuries  received  by  a  passenger  from  an  ac- 
cidental blow  by  one  of  its  employees  while 
making  a  playful  attempt  to  strike  another 
employee,  as  the  act  is  not  within  the  line 
of  his  employment.  Goodloe  v.  Memphis  & 
C.  R.  Co.  107  Ala.  233,  18  So.  166,        29:  729 

170.  A  conductor  beating  a  passenger  who 
slaps  his  face  with  his  hand  renders  the  car- 
rier liable,  if  he  uses  force  greatly  exceeding 
that  which  would  appear  to  a  reasonable 
man  necessary  to  repel  the  assault.  St. 
Louis  S.  W.  R.  Co.  V.  Jones,  64  Ark.  613,  44 
S.  W.  809,  39:784 

171.  An  assault  by  a  conductor  upon  a 
passenger  is  not  excused  or  the  liability  of 
the  carrier  defeated  by.  the  fact  that  the 
passenger  had  used  grossly  profane  and  abu- 
sive language  to  the  conductor  without 
provocation.  Baltimore  &  0.  R.  Co.  v.  Bar- 
ger,  80  Md.  23,  30  Atl.  560,  26:  220 

172.  A  street  car  company  is  liable  for  an 
assault  by  its  conductor  on  a  passenger  be- 
cause the  latter,  after  being  carried  past  his 
station,  in  order  to  stop  the  car,  pulled  the 
bell  rope  so  hard  that  he  broke  it,  and 
jerked  the  conductor  several  feet  along  the 
car  floor,  notwithstanding  the  passenger, 
upon  the  conductor's  following  him  to  the 
platform,  attempted  an  assault  on  him. 
Birmingham  R.  &  E.  Co.  v.  Baird,  130  Ala. 
334,  30  So.  456,  54:  752 

173.  A  railroad  company  is  liable  in  dam- 
ages to  a  female  for  an  assault  with  intent 
to  commit  rape  upon  her  person  by  one  em- 
ploye<l  as  a  baggage  master  upon  a  train  on 
which  she  is  at  the  time  being  conveyed  as 
a  passenger.  Savannah,  F.  &  W.  R.  Co.  v. 
Quo.  103  Ga.  125,  29  S.  E.  607,  40:  48a 


CARRIERS,  11.  a,  3. 


349 


174.  The  vaccination  of  a  passenger  by  a 
ship's  surgeon  will  not  constitute  an  assault 
if  the  passenger's  behavior  indicates  con- 
sent, whatever  may  be  his  unexpressed  feel- 
ings on  the  subject.  O'Brien  v.  Cunard  S.  S. 
Co.  154  Mass.  272,  28  N.  E.  266,  13:  329 

175.  A  railroad  company  is  liable  for  an 
injury  to  a  person  in  one  of  its  station 
houses  in  a  sparsely  settled  country,  al- 
though he  was  not  an  intending  passenger, 
caused  without  any  provocation  by  one  of 
the  employees  of  such  company,  aided  by 
strangers,  in  the  presence  of  the  ticket 
agent,  who  represented  the  company,  and 
who  made  no  effort  to  prevent  the  injury. 
Krantz  v.  Rio  Grande  W.  R.  Co.  12  Utah, 
104,  41  Pac.  717,  30:  297 

176.  A  passenger  who  displays  a  persist- 
ent determination  to  disregard  a  regulation 
of  the  carrier  forbidding  passengers  from 
going  to  sleep  in  its  waiting  rooms^or  lying 
down  on  the  benches  therein,  and  by  his 
wrongful  conduct  so  exasperates  a  servant 
of  the  company  as  to  unfit  him  from  prop- 
erly performing  the  duty  he  owes  his  mas- 
ter with  respect  to  his  treatment  of  its  pat- 
rons, cannot  justly  complain  that  the  com- 
pany's servant  lost  his  temper  and  resorted 
to  unnecessary  force  in  compelling  an  ob- 
servance of  the  regulation  on  the  part  of 
the  passenger.  Central  of  Georgia  R.  Co.  v. 
Motes,  117  Ga.  923,  43  S.  E.  990,  62:  507 
Duty  toward  licensee. 

177.  A  railroad  company  is  under  no  obli- 
gation to  protect  persons  who  resort  to  its 
stations  to  aid  the  departure  of  friends  who 
are  to  become  passengers  on  its  cars,  from 
assaults  by  persons  lounging  abput  the  sta- 
tions, although  such  duty  may  exist  as  to 
the  intending  passengers.  Houston  &  T.  C. 
R.  Co.  Phillio,  96  Tex.  18,  69  S.  W.  994, 

59:  392 

d.  Arrest;  False  Imprisonment. 

Right  to  Stop  Train  to  Arrest  Engineer,  see 

Arrest,    3. 
For  Editor«l  Notes,  see  infra,  IV.  §  16. 

By  employees. 

Measure  of  Damages  for,  see  Damages,  214. 

Waiver  of  Cause  of  Action  for,  see  False 

Imprisonment,  43. 
Instruction  as  to,  see  Trial,  670. 
See  also  infra,  196. 

178.  A  street  railroad  company  is  not  lia- 
ble for  the  act  of  a  driver  without  instruc- 
tions in  causing  the  arrest  of  a  passenger 
on  a  charge  of  passing  counterfeit  money. 
Lafitte  v.  New  Orleans  aty  &  L.  R.  Co.  43 
La.  Ann.  34,  8  So.  701,"  12:  337 

179.  The  common  carrier  of  passengers  is 
liable  for  the  false  imprisonment  of  a  pas- 
senger, made,  or  caused  to  be  made,  by  its 
conductor  in  charge  of  the  train,  during  his 
executioti  of  the  carrier's  contract  to  treat 
properly  and  convey  safely.  Gillingham  v. 
Ohio  River  R.  Co.  35  W.  Va.  588,  14  S.  E. 
243,  14:  798 

180.  A  statute  giving  the  conductor  of  a 
railroad  train  oil  the  powers  of  a  conserv- 
ator of  the  peace  while  in  charge  of  the 
train  does  not  relieve  the  carrier  from  lia- 


bility for  false  imprisonment  of  a  passenger, 
made,  or  caused  to  be  made  by  him.        Id. 

181.  An  agent  whose  sole  duty  is  to  sell 
tickets  from  the  window  of  the  ticket  office 
of  a  railway  station  is  not  charged  with 
the  protection  of  passengers  waiting  for 
trains,  nor  intrusted  with  the  execution  of 
the  transportation  contract,  within  the  rule 
which  renders  the  cajrier  liable  for  wilful 
misconduct  of  its  servants  engaged  in  per- 
forming a  duty  which  the  carrier  owes  the 
passenger,  so  as  to  charge  the  carrier  with 
liability  for  the  wrongful  arrest  of  a  wait- 
ing passenger  by  direction  of  the  agent. 
Mulligan  v.  New  York  &  R.  B.  R.  Co.  129 
N.  Y.  506,  29  N.  E.  952,  14:  791 

182.  A  ticket  agent  who  follows  a  woman 
who  has  bought  a  ticket  out  upon  the  plat- 
form, and  charges  her  with  having  given 
him  counterfeit  money,  with  a  demand  for 
other  money  in  its  stead,  and  on  her  refusal 
angrily  insults  her  by  slandering  her  char- 
acter, and  puts  his  hand  upon  her,  telling 
her  not  to  stir  until  he  gets  a  policeman 
to  arrest  and  search  her,  but  lets  her  go 
when  he  fails  to  get  an  officer,  is  acting 
within  the  scope  of  his  employment,  and 
renders  the  carrier  liable  for  false  imprison- 
ment and  slander,  if  the  detention  was  un- 
lawful and  his  charges  false.  Palmeri  v. 
Manhattan  R.  Co.  133  N.  Y.  261,  30  N.  E. 
1001,  16:  136 

183.  A  railroad  ticket  agent  who  takes  a 
bill  believing  it  to  be  counterfeit,  in  pay- 
ment for  tickets,  and  immediately  procures 
the  arrest  of  the  person  from  whom  he  takes 
it,  is  not  acting  within  the  scope  of  his  busi- 
ness so  as  to  make  the  railroad  company 
liable  for  false  imprisonment,  although  the 
arrest  is  wrongful  and  the  bill  proves  to 
be  a  good  one.  Mulligan  v.  New  York  & 
R.  B.  R.  Co.  129  N.  Y.  506,  29  N.  E.  952, 

14:  791 

184.  Illegal  arrest  without  a  warrant,  and 
false  imprisonment  of  a  passenger,  caused 
by  a  conductor  in  charge  of  the  train  on 
which  he  was  riding,  while  acting  in  the  line 
of  his  employment,  renders  the  carrier  lia- 
ble. Atchison,  T.  &  S.  F.  R.  Co.  v.  Henry, 
55  Kan.  715,  41  Pac.  952,  29:  465 

185.  The  arrest  of  a  street  car  passenger 
by  a  policeman  called  by  the  conductor  of 
the  car  to  arrest  and  take  him  off,  on  the 
charge  of  riding  without  payment  of  fare, 
does  not  render  the  carrier  liable  for  fal<se 
imprisonment,  when  the  conductor  had  been 
authorized  only  to  put  delinquent  passen- ' 
gers  off  the  car.  Little  Rock  Traction  &  E. 
Co.  v.  Walker,  65  Ark.  144,  45  S.  W.  57, 

40:  473 

186.  The  superintendent  of  a  street  rail- 
way company  has  no  implied  authority  to 
cause  the  arrest  of  a  passenger  for  placing 
in  the  fare  box  a  counterfeit  coin  in  pay- 
ment of  fare,  so  as  to  make  the  company 
liable  for  false  imprisonment  in  case  of  such 
arrest,  without  proof  of  precedent  authority 
or  subsequent  ratification  of  his  act.  Cen- 
tral R.  Co.  V.  Brewer,  78  Md.  394,  28  Atl. 
615,  27:63 

187.  A  railroad  company  is  liable  for  the 


830 


CARRIERS,  II.  a,  4. 


act  of  if^  baggage  master,  who  has  been 
placed  in  charge  of  its  waiting  room,  in  as- 
sisting in  the  wrongful  arrest  of  a  passenger 
waiting  at  the  station  for  a  train,  although 
the  arrest  was  at  the  instanete  of  the  city 
authorities,  and  not  on  behalf  of  the  rail- 
road company;  since  it  was  the  duty  of  the 
railroad  company,  and  its  servants  to  whom 
the  care  of  passengers  was  committed,  to  re- 
frain from  committing  wrongful  acts  to- 
ward them.  Texas  M.  R.  Co.  v.  Dean,  98 
Tex.  517,  85  S.  W.  1135,  70:  943 

188.  The  removal  of  a  disorderly  passen- 
ger from  a  passenger  car,  without  arrest- 
ing him,  and  placing  him  in  the  baggage  car 
to  carry  him  to  his  destination,  may  be  rea- 
sonable and  proper  conduct  on  the  part  of  a 
railroad  company,  and  not  render  it  liable 
for  assault  or  imprisonment.  Sullivan  v. 
Old  Colony  R.  Co.  148  Mass.  119,  18  N.  E. 
678,  1:513 

189.  The  right  to  remove  a  disorderly  pas- 
senger without  arresting  him,  which  rail- 
road corporations  possess  at  common  law, 
was  not  intended  to  be  taken  away  by 
iMass.  Pub.  Stat.  chap.  103,  §  18,  which  pro- 
vides that  railroad  police  oflBcers  may  ar- 
rest and  remove  such  passenger  to  the  bag- 
gage car  or  other  suitable  place  of  deten- 
tion. Id. 

190.  Ratification  of  the  act  of  a  street- 
railway  superintendent  in  arresting  a  pas- 
senger for  putting  counterfeit  coin  in  the 
box  for  his  fare  is  not  shown  by  the  fact 
that  the  president  of  the  company,  the  su- 
perintendent and  the  driver  of  the  street 
car,  gave  evidence  against  the  person  ar- 
rested. Central  R.  Co.  v.  Brewer,  78  Md. 
394,  28  Atl.  615,  27:  63 

191.  The  unreasonable  refusal  of  a  pas- 
senger to  state  his  name  when  asked  by  a 
conductor  to  whom  he  tenders  a  mileage 
ticket  if  the  name  thereon  is  his  own  does 
not  justify  the  conductor  in  procuring  his 
arrest  without  a  warrant,  on  the  charge  of 
fraudulently  evading  payment  of  fare.  Pal- 
mer V.  Maine  C.  R.  Co.  92  Me.  399,  42  Atl. 
800,  44:  673 
By  public  officers. 

192.  A  railroad  company  owes  no  duty 
towards  a  passenger  arrested  by  the  officers 
of  the  law  acting  under  color  of  their  of- 
fice to  inquire  into  the  legality  of  the  ar- 
rest. Brunswick  &  W.  R.  Co.  v.  Ponder, 
117  Ga.  63,  43  S.  E.  430,  60:  713 

193.  A  railroad  company  owes  no  duty  to- 
wards a  passenger  arrested  by  officers  un- 
der color  of  their  office  to  see  that  they  use 
only  such  force  as  is  necessary  to  make  the 
arrest.  Id. 

194.  A  railroad  company  is  not  liable  to 
a  passenger  illegally  arrested  by  officers 
of  the  law  under  color  of  their  office  for 
failure  to  interfere  and  prevent  the  arrest, 
or  for  stopping  the  train  to  allow  the  of- 
ficers  to   remove   their   prisoner   therefrom. 

Id. 

195.  A  statement  by  a  passenger  on  a 
railroad  train  in  the  hearing  of  the  con- 
ductor to  officers  attempting  to  arrest  him, 
that  he  has  paid  them  all  he  owes  them,  is 


not  of  itself  sufficient  to  put  the  condueloi 
on  notice  that  the  arrest  is  for  a  debt  in- 
stead of  for  a  crime.  Id. 

196.  Arrest  of  a  disorderly  passenecr 
without  a  warrant  by  an  officer  who  was 
waiting  at  the  depot  for  that  purpose  in  re- 
sponse to  a  telegram  from  the  con<luctor, 
who  pointed  out  the  passenger  as  the  party 
to  be  arrested,  was  not  unlawful  because 
made  without  a  warrant  and  for  an  offense 
not  committed  within  the  view  of  the  of- 
ficer. Baltimore  &  O.  R.  Co.  v.  Cain,  81  Md. 
87,  31  Atl.  801,  28:  688 

4.  Measure    of    Care    Required;    Negligence 
Generally. 

a.  Of  Carrier. 

(1)  In  General. 

Prejudicial  Instruction  as  to,  see  Appeal  and 

Error,  1022. 
Presumption    and   Burden   of   Proof   as   to 

Negligence,  see  Evidence,  II.  h,  1,  6. 
Evidence  as  to  Having  Coach  in  Front  of 

Engine,  see  Evidence,  1891. 
Allegation   as  to  Negligence,  see  Pleading, 

329a-331,  335. 
Instructions  as  to,  see  Trial,  668,  830-832. 
Proximate  Cause  of  Injury,  see  Proximate 

Cause,  63,  138. 
Question  for  Jury  as  to,  see  Trial,  11.  c,  8, 

6,  (1). 
See  also  supra,  61,  65,  72,  90,  93;  infra,  476, 

524. 

197.  The  utmost  care  and  diligence  which 
human  foresight  can  use  is  the  measure  of 
duty  which  a  carrier  owes  to  a  passenger. 
Baltimore  City  Pass.  R.  Co.  v.  Nugent,  86 
Md.  349,  38  AtL  779,  39:  161 

198.  The  omission  of  a  carrier  to  exercise 
the  highest  degree  of  practicable  care  con- 
stitutes negligence;  and  its  measure  of  duty 
is  not  to  be  determined  by  what  a  reasona- 
ble and  prudent  person  would  ordinarily  do 
under  the  circumstances.  Louftville,  N.  A. 
&  C.  R.  Co.  V.  Snider,  117  Ind.  435,  20  N.  E. 
284,  3:  434 
Dodge  V.  Boston  &  B.  S.  S.  Co.  148  Mass. 
207,  19  N.  E.  373,  2:  83 
Treadwell  v.  Whittier,  80  Cal.  574,  22 
Pae.  266,  5:  498 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Lucas,  119 
Ind.   583,  21  N.   E.  968,                           6:  193 

199.  A  common  carrier  of  passengers,  al- 
though not  an  insurer,  must  do  all  that 
human  care,  vigilance,  and  foresight  can, 
under  the  circumstances,  considering  the 
character  and  mode  of  conveyance,  to  pre- 
vent accident  to  passengers.  Libby  v. 
Maine  C.  R.  Co.  (Me.)  85  Me.  34,  26  Atl. 
943,  20:812 
Spellman  v.  Lincoln  Rapid  Transit  Co.  36 
Neb.  890,  55  N.  W.  270,  20:  316 

200.  A  carrier  of  passengers  is  charged 
with  the  highest  degree  of  care  and  fore- 
sight consistent  with  the  orderly  conduct 
of  its  business,  in  respect  to  the  protection 
of  its  passengers  from  injuries  resulting 
from   its   acts   or  omissions,   from   the   acts 


CARRIERS,  II.    a.  4. 


361 


or  omissions  of  its  servants,  and  from  the 
acts  of  strangers,  who  are  under  its  control 
or  direction;  but  it  is  charged  with  ordi- 
nary care  and  pnidence  only  to  guard 
against  the  lawless  acts  of  third  persons 
not  under  its  direction  or  control.  Fewings 
V.  Mendenhall,  88  Minn.  336,  93  N.  W.  127, 

60:  601 

201.  Railroad  corporations  are  not  the  in- 
surers of  the  lives  or  safety  of  passengers 
upon  their  cars,  and,  in  order  to  render  them 
so,  it  is  essential  to  show  that  they  have  neg- 
lected the  performance  of  some  duty  which, 
in  the  exercise  of  reasonable  care,  prudence, 
and  diligence,  they  owe  to  such  passengers. 
Palmer  v.  Pennsvlvania  Co.  Ill  N.  Y.  488, 
18  N.  E.  859,       '  2:252 

202.  The  words  "utmost  care  and  dili- 
gence," which  carriers  of  passengers  must 
exercise,  do  not  mean  the  utmost>  care  and 
diligence  which  men  are  capable  of  exercis- 
ing; but  they  mean  the  utmost  care  con- 
sistent with  the  carrier's  undertaking  and 
with  a  due  regard  for  all  the  other  matters 
which  ought  to  be  considered  in  conducting 
the  business.  Dodge  v.  Boston  &  B.  S.  S. 
Co.  148  Mass.  207,  19  N.  E.  373,  2:  83 

203.  A  railroad  company  owes  to  a  pas- 
senger the  highest  degree  of  care  consistent 
with  the  proper  management  of  the  busi- 
ness. .Jordan  v.  New  York,  N.  H.  &  H.  R. 
Co.   165  Mass.  346,  43  K  E.  Ill,         32:  101 

203a.  A  passenger  carrier  is  bound  to  ex- 
ercise the  highest  degree  of  practical  care 
and  diligence  that  is  consistent  with  the 
mode  of  transportation  adopted.  Palmer  v. 
Warren  Street  R.  Co.  206  Pa.  574,  56  Atl. 
49,  63 :  507 

204.  Trainmen  are  not  guilty  of  wilful 
or  wanton  neglect  of  duty  in  failing  to  stop 
a  freight  train  running  on  a  sharp  up-grade 
at  a  speed  of  8  miles  an  hour,  to  remove 
a  boy  eight  years  and  five  months  old,  who, 
in  violation  of  the  statutes  as  well  as  of 
the  orders  of  the  engineer,  caught  hold  of 
and  hung  to  one  of  the  cars  in  the  moving 
train, — especially  where  it  does  not  appear 
that  the  train  could  safely  be  stopped  at 
that  place.  Pittsburgh,  Q.  C.  &  St.  L.  R. 
Co.  V.  Redding,  140  Ind.  101,  39  N.  E.  921, 

34:  767 

205.  A  railroad  company  is  liable  for  in- 
juries to  a  passenger  by  the  overturning  of 
the  car  where  it  leaves  her  in  the  car  with- 
out warning  because  she  cannot  understand 
the  language  in  which  other  passengers  are 
warned,  after  the  engine  has  been  over- 
turned by  a  washout,  and  the  water  is  run- 
ning along  the  track  on  Avhich  the  car 
stands,  in  such  a  way  as  to  imdermine  one 
side  of  it  and  render  an  overturning  of  the 
car  probable.  Southern  Pac.  Co.  v.  Tarin, 
47  C.  C.  A.  648,  108  Fed.  734,  54:  240 

206.  When  a  car  containing  a  sleeping 
passenger  becomes  detached  from  a  train, 
and  is  left  standing  at  the  foot  of  a  long 
down  grade,  and  the  trainmen  know  that 
another  train  will  soon  come  down  that 
grade  on  the  same  track,  and  that  it  is  lia- 
ble to  be  broken  in  two  and  thus  not  under 
complete  control,  and  there  is  frost  on  the 


track,  the  failure  on  tne  part  of  the  train- 
men either  to  warn  the  passenger,  or  to 
signal  the  coming  train  at  a  greater  dis- 
tance than  a  quarter  of  a  mile  from  the 
standing  car,  there  being  ample  time  to  do 
so,  will  furnish  evidence  of  gross  negligence. 
Whitehead  v.  St.  Louis,  I.  M.  &  S.  R.  Co. 
99  Mo.  263,  11  S.  W.  751,  6:  409 

207.  A  passenger  who  aids  in  carrying 
another  who  has  become  sick  on  the  train, 
into  another  car  on  the  conductor's  request 
in  order  that  he  may  be  treated  by  a  physi- 
cian, can  recover  against  tlie  carrier  for  in- 
juries sustained  by  falling  between  the  car 
platforms,  which  was  caused  by  the  negli- 
gence of  the  carrier's  servants.  Lake  Shore 
&  M.  S.  R.  Co.  V.  Salzman,  52  Ohio  St.  558, 
40  N.  E.  891,  31 :  261 

208.  A  steamship  company  is  not  answer- 
able for  the  negligence,  in  vaccinating  pas- 
sengers, of  a  surgeon  carried  by  it  in  obe- 
dience to  law,  if  it  has  used  due  care  in  his 
selection  and  in  procuring  pure  virus. 
O'Brien  v.  Cunard  S.  S.  Co.  154  Mass.  272, 
28  N.  E.  266,  13:  329 
Livery-stable  keepers. 

See  also  Hacks,  3. 

209.  Livery-stable  keepers  are  not  within 
the  rule  that  common  carriers  of  passengers 
are  bound  to  exercise  extraordinary  care 
for  the  safety  of  their  passengers.  Stanley 
v.  Steele,  77  Conn.  688,  pO  Atl.  640,     69:  561 

210.  Whether  or  not  a  livery-stable  keep- 
er is  liable  to  a  patron  for  an  injury  due  ' 
to  a  defect  in  the  neck  yoke  of  the  carriage 
furnished  by  him  depends  upon  whether  it 
was  discoverable  by  the  exercise  of  such 
care  as  is  usually  exercised  by  persons  of 
ordinary  prudence  in  the  conduct  of  such 
business.  Id. 
Negligence  of  sleeping  car  conductor. 

211.  A  railroad  company  is  responsible  to 
a  passenger  for  negligence  of  the  sleeping- 
car  conductor.  JTorfolk  &  W.  R.  Co.  v. 
Lipscomb,  90  Va.  137,  17  S.  E.  809.  20:  817 
Speed;  sudden  jolt. 

As  Proximate  Cause  of  Injury,  see  Proxi- 
mate Cause,  67. 
For  Editorial  Notes,  see  infra,  IV.  §  26. 

212.  A  railroad  company  is  liable  for  in- 
jury to  a  passenger  thrown  from  the  plat- 
form of  a  car  on  which  he  is  lawfully  rid- 
ing, when  the  accident  is  due  to  the  exces- 
sive speed  of  the  train,  considering  the 
curves  and  condition  of  the  track,  which 
occasion  a  severe  jar  or  jolt.  Lynn  v. 
Southern  P.  Co.  103  Cal.  7,  36  Pac.  1018, 

24:  710 

213.  A  passenger  lawfully  on  a  freight 
train,  who,  in  the  exercise  of  due  care, 
arises  when  the  train  comes  to  a  standstill, 
either  to  leave  the  train  or  to  feed  stock, 
which  his  contract  requires  him  to  do,  may 
recover  from  the  carrier  for  injuries  caused 
by  a  sudden  start  or  unusual  jerking  of  the 
train.  Illinois  C.  R.  Co.  v.  Beebe,  174  111. 
13,  50  N.  E.  1019,  43:  210 
On  approach  of  street  car  to  railroad  cross- 
ing. 

Negligence  in  Running  Street  Car  Across, 
see  Street  Railways,  44,  45. 


352 


CARRIERS.  II.     a.  4. 


213a.  Running  a  street  car  across  a  rail- 
road track  at  grade  without  first  stopping 
it,  and  without  some  employee  going  ahead 
to  see  if  the  way  is  clear  and  free  from  danger 
and  giving  a  signal  to  that  effect  as  required 
by  Ohio  act  May  4, 1891  (88  Ohio  Laws,  582), 
is  negligence — at  least  in  the  absence  'of 
extraordinary  circumstances — for  which  the 
street  railroad  company  will  be  liable  for 
any  damages  directly  caused  by  such  neg- 
ligence. Cincinnati  Street  R.  Co.  v.  Murray, 
.53  Ohio  St.  570,  42  N.  E.  596,  30:  508 

213b.  The  existence  of  gates  and  a  watch- 
man at  a  railroad  crossing  does  not  relieve 
a  street  railroad  company  from  the  neces- 
sity of  complying  with  the  provisions  of 
Ohio  act  May  4,  1891  (88  Ohio  Laws,  582), 
requiring  a  street  car  to  be  stopped  and  an 
employee  to  go  ahead  to  ascertain  if  the 
way  is  clear  and  safe  and  give  a  signal  to 
that  effect  before  crossing  a,  railroad  track 
at  grade.  Cincinnati  Street  R.  Co.  v.  Mur- 
ray, 53  Ohio  St.  570,  42  K  E.  596,  30:  508 
Street  cars  approaching  on  same  track. 

214.  Negligence  on  the  part  of  a  street 
railway  company  is  not  shown  by  the  fact 
that  cars  are  allowed  to  approach  each  oth- 
er from  opposite  directions  on  the  same 
track.  Palmer  v.  Warren  Street  R.  Co.  206 
Pa.  574,  56  Atl.  49.  63:  507 
Operating  during  strike. 

215.  The  attempt  of  a  street  railway 
company  to  operate'  its  cars  during  a  strike 
of  its  employees  does  not  constitiite  negli- 
gence toward  its  passengers,  unless  the  con- 
ditions are  such  that  it  ought  to  know,  or 
ought  reasonably  to  anticipate,  that  it  can- 
not do  so  and  at  the  same  time  guard  from 
violence,  by  the  exercise  of  the  utmost  care 
on  its  part,  those  who  accept  its  implied 
invitation  to  uecome  passengers.  Fewings 
v.  Mendenhall,  83  Minn.  237,  86  K  W.  96,' 

55:  713 
Failure  to. heat  car. 
For  Editorial  Notes,  see  infra,  IV.  §  9. 

216.  A  railroad  company  is  not,  as  mat- 
ter of  law,  free  from  liability  to  a  passen- 
ger for  a  severe  illness  resulting  from  its 
failure  to  heat  the  car  on  which  he  was 
riding  during  a  cold  night,  where  there  were 
stoves  therein  and  ample  opportunity  to 
supply  the  needed  heat,  and  the  employees 
in  charge  of  the  train  were  requested  to 
supply  the  needed  heat.  Taylor  v.  Wabasli 
R.  Co.  (Mo.)  38  S.  W.  304,  42:  110 
Failure  to  provide  for  wreck. 

217.  The  failure  to  equip  a  train  with  the 
tools  usually  carried  by  trains  for  emer- 
gency use  in  case  of  a  wreck  is  negligence; 
and  where,  for  want  of  such  tool,  a  pas- 
senger is  not  rescued  as  promptly  as  would 
otherwise  have  been  practicable  from  his 
position  in  tlie  debris  of  a  wreck,  the  rail- 
road conipany  will  be  held  responsible  in 
damages  for  such  additional  sufferings,  re- 
gardless f)f  wlietlier  the  wreck  itself  is  or  is 
not  caused  bv  its  negligence.  Jackson  v. 
Natchez  &  W.  R.  Co.  114  La.  981,  38  So. 
701,  70:294 
Toward  person  riding  without  contract. 
See  also  supra.  42. 


218.  A  trespasser  stealing  a  ride  on  a 
freight  car  is  not  entitled  to  any  care  on 
the  part  of  the  railroad  company,  except 
that  it  must  not  wilfully  or  recklessly  in- 
jure him  after  discovering  his  presence  on 
the  train.  Farber  v.  Missouri  P.  R.  Co.  116 
Mo.  81,  22  S.  W.  631,  20:  350 

219.  A  person  riding  on  the  cars  of  a  rail- 
Toad  company  with  its  consent  without  any 

contract  between  him  and  the  company  may 
hold  it  liable  for  injuries  inflicted  upon  him 
by  the  negligence  of  the  company  or  its 
servants.  McNeill  v.  Durham  &  C.  R.  Co. 
135  N.  C.  682,  47  S.  E.  765,  67:  227 

Duty  to   stop  for  passenger  thrown  from 

train. 
Allegations  as  to  Negligence,  see  Pleading, 

336. 

220.  A  railroad  company  is  under  obliga- 
tion to  stop  a  train,  and  rescue  a  passenger 
who  has  been  thrown  or  pushed  therefrom 
without  any  fault  on  its  part,  where  he  is 
liable  to  perish  or  suffer  great  injury  un- 
less rescued,  only  when  it  can  stop  the  train 
long  enough  to  rescue  him  without  endan- 
gering the  safety  of  other  passengers  by 
collisions.  Reed  v.  Louisville  &  N.  R.  Co. 
104  Kv.  603,  47  S.  W.  591,  48  S.  W.  416, 

44:  823 
After  passenger  leaves  car. 
Allegation   as  to   Carrier's  Negligence,    see 

Pleading,  331. 
For  Editorial  Notes,  see  infra,  TV.  §  27. 

221.  A  street  railway  comnany  op'erating 
a  double-track  road,  on  discharging  a  pas- 
senger at  a  street  crossing,  with  reason  to 
know  that  he  must  cross  its  tracks,  must 
so  control  the  speed  of  cars  and  give  such 
warning  of  their  approach  as  will  reason- 
ably protect  him  from  injury.  Cincinnati 
Street  R.  Co.  v.  Snell,  54  Ohio  St.  197,  43 
N.  E.  207,  32:  276 

222.  A  railway  company  is  required  to 
exercise  only  ordinary. care  and  prudence  to- 
wards a  passenger  who  is  temporarily  pre- 
vented from  continuing  his  journey  by  a 
burning  tank  of  oil  on  the  track,  while  he 
is  waiting  for  a  train  to  come  from  the 
other  side  of  the  tank  to  receive  him.  Con- 
roy  V.  Chicago,  St.  P.  M.  &  O.  R.  Co.  96 
Wis.  243,  70  N.  W.  486,  38:  419 

223.  A  railroad  company  is  not  required 
to  restrain  by  physical  force  a  passenger  on 
a  railway  train  which  is  temporarily 
stopped  by  a  burning  tank  of  oil  on  the 
track,  from  unnecessarily  exposing  himself 
to  danger  from  an  explosion  of  the  tank  by 
approaching  too  close  to  it.  Id. 

224.  A  burning  tank  of  oil  on  a  railroad 
traek,  the  flames  from  which  ascend  several 
feet  into  the  air,  is  sufficient  notice  of  the 
danger  of  an  explosion  to  a  passenger  on  a 
train  temporarily  stopped  by  the  fire,  to 
render  unnecessary  any  caution  to  him  from 
the  company  not  to  approach  too  near  the 
tank.  Id. 

225.  ^Miere  a  passenger  is  injured  while 
attempting  to  alight  from  a  train  at  a  reg- 
ular station,  by  another  train  belonging  to 
the  same  carrier  and  in  charge  of  its  serv- 
ants, which  runs  past  the  station  platform 


CARRIERS,  II.    a,  4. 


353 


while  the  passengers  of  the  former  train 
are  being  received  and  discharged,  the  car- 
rier, to  relieve  itself  from  liability  for  dam- 
ages, must  show  that  it  uses  the  degree  of 
care  which  the  law  imposes  upon  it.  Phil- 
adelphia, W.  &  B.  R.  Co.  V.  Anderson,  72 
Md.  519,  20  Atl.  2,  8:  673 

226.  If  a  passenger  alights  by  direction 
or  implied  invitation  of  the  carrier  at  a 
place  where,  in  order  to  leave  the  carrier's 
premises,  it  is  necessary  to  ci'oss  the  car- 
rier's track,  there  is  an  implied  agreement 
that  in  using  that  mode  of  egress  trains 
will  not  b?  so  operated  as  to  make  the  exit 
unnecessarilv  dangerous.  Chesapeake  <iL  O. 
R.  Co.  V.  King,  40  C.  C.  A.  432,  99  Fed.  251. 

49:  102 
(2)   As  to  Tracks,  Roadbed,  etc. 

Punitive  Damages  for  Injury  by  Derail- 
ment, see  Damages,  67.  ', 

Presumption  and  Burden  of  Proof  in  Case 
of  Derailment,  see  Evidence,  466,  467. 

Evidence  as  to  Condition  of  Track  at  Other 
Place  or  Time,  see  Evidence,  1986.  1993. 

See  also  supra,  82. 

227.  Failure  of  a  I'ailroad  company  to 
have  a  good,  substantial,  and  safe  track  for 
its  trains,  or  to  see  that  its  trains  are 
properly  managed,  will  render  it  liable  for 
an  injury  to  a  passenger  therefrom.  Illi- 
nois C.  R.  Co.  V.  Beebe,  174  111.  13,  50  N.  E. 
1019,  43:210 

228.  A  railroad  company  should  inspect 
its  lines  with  more  than  ordinary  prompti- 
tude under  circumstances  of  more  than  or- 
dinary peril, — as  in  case  of  violent  storms,— 
particularly  those  portions  which  are  most 
liable  to  injury  by  storm  or  flood.  The 
greater  the  peril  the  greater  the  vigilance 
demanded.  Libby  v.  Maine  C.  R.  Co.  85  Me. 
34,  26  Atl.  943,  20:812 

229.  That  an  obstruction  causing  an  ac- 
cident on  a  railroad  was  the  result  of  work 
done  on  the  road  by  an  independent  con- 
tractor is  no  defense  to  the  carrier.  Car- 
rico  V.  West  Virginia.  C.  &  P.  R.  Co.  39 
W.  Va.  86,  19  S.  E.  571,  24:  50 

230.  The  assumption  by  a  passenger  of 
the  extra  risks  of  riding  on  a  freight  train 
does  not  include  any  greater  risk  as  to  the 
condition  of  the  track  than  passengers  on 
other  trains  assume.  Ohio  Valley  R.  Co.  v. 
Watson.  93  Ky.  654,  21  S.  W.  2^4,        19:  310 

231.  If  a  railroad  company  is  using  tracks 
belonging  to  a  third  party,  and  the  danger- 
ous character  of  such  tracks  might  have 
been  discovered  by  the  exercise  of  due  care, 
it  will  be  liable  for  an  accident  occasioned 
thereby  and  resulting  in  the  death  of  a 
passenger,  whether  the  defect  was  in  the 
original  construction  of  the  road,  or  was 
dut  to  the  failure  of  the  owner  to  make 
repairs,  or  however  otherwise  it  may  have 
been  caused.  Littlejohn  v.  Fitchburg  R.  Co. 
148  Mass.  478,  20  N.  E.   103,  2:  502 

232.  For  a  railroad  company  to  have  its 
freight  platform  so  near  the  track  that  the 
elbow  of  a  passenger  projecting  only  3  or  4 
inches  through  an  open  window  is  broken 
by  coming  in  contact  with  a  bale  of  cotton 

L.R.A.  Dig.— 23. 


on  such  platform  is  gross  negligence,  ren- 
dering the  company  liable  for  the  injury 
sustained.  Kird  v.  New  Orleans  &  N.  W. 
R.  Co.  109  La.  525,  33  So.  587,  60:  727 

233.  A  trolley-railway  company  should 
foresee  the  possible  danger  to  which  pas- 
sengers on  tlie  footboards  of  its  cars  may 
be  exposed  by  a  slight  movement  of  the 
body,  when  trolley  poles  are  placed  from 
10  to  12  inches  from  the  edge  of  the  foot- 
l)oard.  Elliott  v.  Xewport  Street  R.  Co. 
18  R.  I.  707,  28  Atl.  338.         '  23:  208 

234.  A  railroad  company  is  not  liable  for 
the  insufficiency  of  its  culvert  in  an  un- 
precedented storm,  because  the  danger 
might  have  been  averted  if  known,  where 
the  degree  of  care  and  prudence  used  was 
that  which  cautious  and  prudent  persons 
would  use  under  such  circumstances,  with- 
out reasonable  knowledge  that  such  a  storm 
was  likelv  to  occur.  Libbv  v.  Maine  C.  R. 
Co.  85  Me.  34,  26  Atl.  943^  20:  812 

235.  For  injuries  to  a  passenger  on  a 
train  by  the  negligent  handling  of  a  der- 
rick near  the  track,  which  was  operated 
by  employees  of  a  state  board  engaged  in 
raising  the  grade  of  a  railroad  bridge  and 
the  approaches  thereto,  the  railroad  com- 
pany is  not  liable,  in  the  absence  of  any 
negligence  on  its  own  part,  when  it  had  no 
voice  in  the  selection  of  the  board  or  its 
employees,  and  no  power  to  interfere  with 
or  prevent  their  operations.  New  york,  N. 
H.  &  H.  R.  Co.  v.  Baker,  39  C.  C.  A.  237,  98 
Fed.  694,  50:  201 
Bridges. 

Sufficiency  of  Proof  of  Negligence,  see  Evi- 
dence, 2250. 
Question  for  Jury  as  to,  see  Trial,  289. 

236.  A  railroad  company  will  be  held  re- 
sponsible for  injury  to  a  passenger  resulting 
from  the  collapse  of  one  of  its  bridges,  un- 
less it  can  show  that  the  bridge  was  as  safe 
as  the  highest  degree  of  practical  care  and 
skill  could  make  a  bridge  of  that  class,  and 
that,  to  the  fullest  extent  that  the  high- 
est degree  of  care  and  foresight  could  sug- 
gest, such  bridge  was  inspected  for  discov- 
ering and  remedying  any  defects  that  might 
have  developed  in  it  from  the  operation  of 
the  road  or  other  causes;  and.  in  case  the 
defect  was  latent  in  the  materials,  then 
that  the  materials  were  thoroughly  tested 
before  being  put  in  position.  Jackson  v. 
Natchez  &  W.  R.  Co.  114  La.  981,  38  So. 
701,  70:  294 

237.  'A'  railroad  company,  before  trusting 
the  lives  of  passengers  upon  its  bridges, 
must  carefully  and  skilfully  test  and  in- 
spect the  materials  used  therein;  and  the 
duty  of  inspection  continues  thereafter  dur- 
ing their  use,  requiring  a  test  from  time  to 
time  to  ascertain  whether  they  are  being 
impaired  by  use  or  exposure  to  the  ele- 
ments. Louisville,  N.  A.  &  C.  R.  Co.  v. 
Snider,  117  Ind.  435,  20  N.  E.  284,  *  3:  434 
Animal  on  track. 

238.  Derailment  of  a  train  by  contact 
with  an  animal  is  a  fact  which  may  be 
looked  to  in  ascertaining  whether  the  car- 
rier exercised  du€  care,  in  view  of  the  fact 


354 


CARRIERS,  II.  a.  4. 


that  the  carrier  has  a  right  to  fence  its 
track  to  keep  animals  off  from  it.  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Wilson,  79  Tex.  371,  15 
S.  W.  280,  11:486 

(3)   As  to  Vehicle,  or  Place  of  Riding  Gen- 
erally. 

Contributory  Negligence  as  to,  see  infra,  II. 

a,  4,  b,  (2). 
Fall    of    Ventilating    Window,    Burden    of 

Proof  as  to,  see  Evidence,  460. 
Question  for  Jury 'as  to,  see  Trial,  288a. 
See  also  supra,  94;  infra,  271,  275. 
For   Editorial    Notes,   see    infra,   IV.    §§    6, 

9,  10. 

239.  Carriers  of  passengers  are  bound  for 
defects  in  the  vehicles  furnished  by  them, 
which  might  have  been  discovered  by  the 
most  careful  examination.  Treadwell  v. 
Whittier,  80  Cal.  574,  22  Pac.  266,        5:  498 

240.  A  railroad  company  which  under- 
takes to  transport  all  the  passengers  oh 
board  a  train,  although  some  are  upon  plat- 
forms, must  exercise  all  additional  care 
commensurate  with  the  perils  and  dangers 
surrounding  the  passengers  in  such  situa- 
tion. Lynn  v.  Southern  P.  Co.  103  Cal.  7, 
36  Pac.   1018,  24:  710 

241.  The  failure  of  a  railroad  company 
to  furnish  accommodations  for  its  passen- 
gers on  a  train,  so  that  a  large  number  of 
them  are  compelled  to  stand  in  the  aisles 
and  upon  the  platforms  of  the  cars,  consti- 
tutes neglisence.  Graham  v.  McNeill,  20 
Wash.  466,  "55   Pac.   631,  43:  300 

242.  A  door,  such  as  is  in  common  use, 
does  not  show  negligence  of  a  railroad  com- 
pany because  it  is  not  all  made  of  glass 
above  the  middle,  so  persons  on  opposite 
sides  can  see  each  other,  nor  because  a 
screw-eye  4  feet  10  inches  from  the  bottom 
projects  9-16  of  an  inch  beyond  the  surface 
and  causes  injury  to  a  person  against  whom 
it  is  violently  pushed  by  another  hurrying 
to  a  train.  Graeff  v.  Philadelphia  &  R.  R. 
Co.  101  Pa.  230,  28  Atl.  1107,  23:  606 
Electric  cars. 

Sufficiency  of  Proof  of  Negligence,  see  Evi- 
dence, 2249. 

243.  One  operating  an  electric  car  may 
be  guilty  of  negligence  in  placing  a  fuse 
box  under  the  seat  of  an  open  car  in  such 
a  position  that  its  burning  out  will  be  like- 
ly to  injure  a  person  occupying  the  sear. 
Cassady  v.  Old  Colony  Street  R.  Co.  184 
.Vlass.  i56,  68  N.  E.  10,  03:  285 

244.  An  electric  street  railway  cotnixiny 
is  liable  for  injuries  to  a  passenger  from  an 
electric  shock  received  while  passing  from 
one  car  to  another  by  grasping  a  hand  rail 
charged  with  electricity  because  of  imper- 
fect insulation,  where  it  has  ready  means 
of  ascertaining  the  escape  of  electricity 
from  the  works  of  the  car,  and  the  passen- 
ger is  free  from  contributory  negligence. 
Burt  V.  Douglas  County  Street  R.  Co.  83 
Wis.  229,  53  X.  W.  447.  18:  47!) 

245.  An  injury  to  a  passenger  on  a  trol- 
ley car  by  contact  with  a  trolley  wire 
charged  with  electricity,   which  breaks  and 


falls  over  the  rear  end'  of  the  car,  does  not 
render  the  carrier  liable  if  the  accident  was 
caused  solely  by  a  hidden  or  latent  defect 
in  the  wire,  which  could  not  have  been  dis- 
covered or  detected  by  any  reasonable  ex- 
amination, unless  the  carrier  has  been  in 
some  way  negligent  in  respect  to  the  danger 
of  such  an  accident.  Baltimore.  City  Pass. 
R.  Co.  V.  Nugent,  86  Md.  349,  38  Atl.  779. 

39:  161 
Baggage  cars. 

246.  One  who  purchases  a  ticket  for  a 
regular  passenger  train  has  a  rrght  to  be 
conveyed  in  a  passenger  coach  instead  of  a 
baggage  car,  unless  the  latter  is  as  safe  a 
vehicle  as  can  be  procured  by  the  utmost 
care  and  diligence.  Baltimore  &  P.  R.  Co. 
V.  Swann,  81  Md.  400,  32  Atl.  175,       31:  313 

247.  Reasonable  effort  at  least  to  make  a 
baggage  car  safe  and  convenient  for  a  pas- 
senger is  necessary  when  this  is  the  only 
vehicle  that  can  be  furnished  for  passengers 
in  a  regular  passenger  train.  Id. 
Freight  trains. 

See  also  supra,  213,  218,  230. 

248.  A  railroad  company  admitting  pas- 
sengers to  a  freight  train  incurs  the  same 
liability  to  transport  them  safely  as  if  on 
a  passenger  train.  New  York,  C.  &  St.  L. 
R.  Co.  V.  Doane,  115  Ind.  435,  17  N.  E.  913, 

1:  157 

249.  If  one  is  riding  on  a  freight  train 
with  the  consent  of  the  agents  in  charge 
thereof,  the  company  owes  him  a  duty  al- 
though he  is  there  against  the  rules  of  the 
company.  Whitehead  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.  99  Mo.  263,  11  S.  W.  751,      6:  409 

250.  The  consent  of  the  conductor  of  a 
freight  train  having  entire  charge  thereof, 
to  permit  one  to  ride  on  such  train,  al- 
though he  was  forbidden  to  carry  passen- 
gers on  that  train,  and  although  the  person 
permitted  to  ride  was  not  required  to  pay 
fare,  is  within  the  scope  of  the  conductor's 
authority  so  as  to  render  the  company  lia- 
ble for  an  injury  resulting  from  lack  of  or- 
dinary care  on  the  part  of  the  employees  of 
the  company.  Id. 
Ice,  snow,  or  filth,  on  floors  or  car  plat- 
forms. 

251.  A  passenger  who  is  injured  by  fall- 
ing on  a  small,  smooth  patch  of  ice,  frozen 
to  the  deck  in  the  passageway  of  a  ferry- 
boat, in  ordinary  winter  weather,  has  a 
prima  facie  right  to  hold  the  ferry  company 
liable  therefor.  Rosen  v.  Boston,  187  Mass. 
245,  72  N.  E.  992,  68:  153 

252.  The  mere  existence,  during  the  storm 
which  caused  it,  of  snow  on  the  deck  of  a 
ferryboat,  raises  no  presumption  of  negli- 
gence on  the  part  of  the  ferry  company 
which  will  establish  its  liability  to  respond 
in  damages  to  a  passenger  who  receives  in- 
juries by  falling  on  the  slippery  deck. 
Foarn  v.  West  Jersey  Ferry  Co.  143  Pa.  122, 
22  Atl.  708,  13:  366 

253.  Railroad  corporations  are  not  obliged, 
immediately  and  effectually,  to  remove 
from  the  exposed  platform  of  a  car  while 
en  route  the  effects  of  a  continuous  storm 
of  snow,  sleet,  rain,  or  hail;  their  obliga- 
tion in  this  respect  is  analogous  to  that  im- 


CARRIERS.  II.    a.  4. 


5(55 


posed  upon  municipal  corporations  in  re- 
spect to  the  removal  of  snow  and  ice  from 
streets.  Palmer  v.  Pennsylvania  Co.  Ill  N. 
Y.  488,  18  K.  E.  859,  2:  252 

254.  The  degree  of  care  required  of  rail- 
road corporations  in  the  removal  of  ice  or 
snow  from  car  platforms  must  generally  be 
determined  by  the  circumstances  of  each 
case;  but  they  should  not  be  held  responsi- 
ble for  dangers  produced  by  the  elements, 
until  they  have  assumed  a  dangerous  form 
and  there  has  been  a  reasonable  oppo-rtunity 
to  remove  their  effects.  Id. 

255.  The  failure  of  a  railroad  company  to 
remove  from  the  platform  of  a  passenger 
car  on  a  through  train,  before  5  o'clock 
A.  M.,  while  yet  on  the  route,  ^  thin  cover- 
ing of  ice  and  snow  which  had  accumulated 
during  the  night,  will  not  constitute  negli- 
gence such  as  will  make  it  liable  for  an  in- 
jury which  a  passenger  sustained  *by  slip- 
ping thereon, — especially  when  he  had  sev- 
eral times  crossed  over  the  platform  during 
the  night  and  knew  of  its  slippery  condi- 
tion. Id. 

256.  Failure  of  a  railroad  company  to 
discover  filth  on  the  steps  of  a  passenger 
car  in  the  nighttime,  within  half  an  hour 
after  the  car  had  been  inspected  and  found 
to  be  in  good  condition,  will  not  render  the 
company  liable  to  a  passenger  who  is  injured 
by  slipping  on  the  step,  where  the  proof 
does  not  show  that  due  care  would  have 
prevented  the  accident.  Proud  v.  Philadel- 
phia &  R.  Ry.  (N.  J.  Err.  &  App.)  64  N.  J. 
L.  702,  46  Atl.  710,  50:468 

6.  Contributory    Negligence    of    Passenger. 

>  (1)   In  General. 

On  Approaches  and  Platforms,  see  infra,  II. 

a,  9,  a,  (2). 
In  Getting  on  or  off  Train,  see  infra,  11.  a, 

8,  6. 
Of    Intoxicated    Passenger,    see    infra,    452, 
I  453. 

^        As  to  Baggage,  see  infra,  732,  733. 

First  Raising  Question  as  to,  on  Appeal,  see 

Appeal  and  Error,  611. 
Passenger    on    Boat    Injured    by    Blasting 

Nearby,  see  Blasting,  19. 
Custom  as  to  Riding  on  Pilot  of  Engine, 

see  Custom,  11. 
Contributory  Negligence  of  Infant,  see  Neg- 
ligence, 210. 
Imputing    Mother's    Negligence    to    Infant 

Passenger,  see  Negligence,  280. 
Proximate  Cause  of  Injury  to  Mail  Clerk, 

see  Proximate  Cause,  120. 
Violation     of    Sunday    Law,    see     Sunday, 

33,  34. 
Question  for  Jury  as  to,  see  Trial,  11.  c,  8, 

&,   (2). 
Instructions  as  to,  see  Trial,  833. 
See  also  supra,  107,  224;  infra,  381. 
Foa-  Editorial  Notes,  see  infra,  IV.  §  29. 

257.  Contributory  negligence  of  the  pas- 
senger is  no  defense  to  an  action  under 
Mass.  Pub.  Stat.  chap.  112,  §  212,  imposing 
a  penalty  on  railroad  companies  for  neg- 


ligently killing  passengers,  unless  his  neg- 
ligence was  the  true  cause  of  the  accident. 
Boston  &  M.  R.  v.  Hurd,  47  C.  C.  A.  615, 
108  Fed.  116,  56:  193 

258.  In  a  contract  for  safe  carriage,  there 
is  an  implied  agreement  that  the  passenger 
will  obey  the  reasonable  rules  of  the  car- 
rier; and  where  the  passenger  purposely 
violates  such  rule,  and  is  thereby  injured, 
he  cannot  recover  damages  from  the  carrier 
in  an  action  on  the  contract.  Cincinnati, 
L.  &  A.  Electric  Street  R.  Co.  v.  Lohe,  68 
Ohio  St.   101,  67  N.  E.   161,  67:  637 

259.  One  about  to  board  a  train,  who  has 
knowledge  of  facts  which  would  put  a  per- 
son of  ordinary  prudence  and  diligence  upon 
inquiry  to  ascertain  whether  or  not  the 
train  is  permitted  to  carry  passengers,  is 
charged  with  knowledge  of  all  the  facts 
which  a  reasonably  diligent  inquiry  would 
discover.  Purple  v.  Union  P.  R.  Co.  51  C. 
C.  A.  564,  114  Fed.  123,  57:  700 

260.  Where  a  passenger  is  in  his  proper 
place  in  the  car,  and  makes  no  exposure  of 
his  person  to  danger,  there  can  be  no  ques- 
tion of  contributory  negligence  in  the  case 
of  an  injury  by  the  fall  of  a  railroad  bridge. 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Snider,  117 
Ind.  435,  20  N.  E.  284,  3:  434 

261.  An  experienced  traveler  who  opens 
a  vestibule  door  of  a  sleeping  car  by  mis- 
take, about  6  o'clock  in  the  morning,  while 
the  train  is  passing  through  a  tunnel  and 
the  car  is  dark,  and  steps  off  upon  the 
track,  when  he  supposes  he  is  entering  the 
car  closet,  is  guilty  of  such  negligence  as 
will  preclude  his  recovery  even  if  the  car- 
rier is  deemed  negligent.  Piper  v.  New 
York  C.  &  H.  R.  R.  Co.  156  N.  Y.  224,  50  N. 
E.  851,  41:  724 

262.  A  passenger  escaped  from  a  wrecked 
and  burning  car  is  not  guilty  of  contribu- 
tory negligence  in  failing  to  close  her  ears 
and  shut  her  eyes  as  to  everything  that 
transpires  resulting  from  the  collision, 
while  remaining  for  about  thirty  minutes 
upon  an  embankment  to  which  she  has 
climbed  out  of  a  deep  trench,  although  the 
horrors  incident  to  the  collision  may  thus 
increase  the  fright  or  nervous  shock  which 
she  sustains.  Denver  &  R.  G.  R.  Co.  v. 
Roller,  41  C.  C.  A.  22,  100  Fed.  738,     49:  77 

263.  It  is  not  negligence  for  a  passenger 
on  a  cable  railway  to  take  a  seat  on  the 
outside  of  the  grip  car,  in  a  place  provided 
for  passengers,  although  there  is  room  in 
the  trailer.  Hawkins  v.  Front  Street  Cable 
R.  Co.  3  Wash.  592,  28  Pac.  1021,        16:  808 

264.  A  street  railway  company  which  per- 
mits cars  of  another  company  to  be  run 
over  its  tracks  under  a  mere  traffic  arrange- 
ment is  not  liable  for  the  death  of  a  pas- 
senger of  the  latter  company  caused  by  col- 
lision with  a  tree  beside  the  track,  although 
it  laid  its  tracks  so  close  to  a  line  of  stand- 
ing trees  that  faulty  construction  of  a  car 
or  negligent  management  might  bring  a  pas- 
senger into  collision  with  them,  if,  by  the 
exercise  of  care,  they  could  be  passed  in 
safety,  Sias  v.  Rochester  Railway  Co.  169 
N.  Y.  118,  62  N.  E.  132,  56:  850 


356 


CARRIERS,  II.    a,  4. 


26o.  A  passenger  who  leaves  his  train  be- 
fore the  completion  of  his  trip  must  assume 
all  the  ordinary  risks  incident  to  his  ac- 
tion, where  the  train  is  run  upon  a  switch 
to  allow  the  pa^ssage  of  another  train,  or  is 
stopped  at  a  place  other  than  that  used  by 
the  carrier  for  receiving  and  discharging 
passengers,  and  the  stoppage  is  not  for  the 
jmrpose  of  allowing  passengers  to  board 
tlie  train  or  alight  therefrom.  Chicago,  R. 
I.  &  P.  R.  Co.  V.  Sattler,  64  Neb.  636,  90 
X.   W.  649,  57 :  890 

266.  The  standard  of  care  for  a  person 
wrongfullj'  ejected  from  a  railroad  train  is 
to  get  off  the  track  at  the  earliest  practi- 
cable opportunity  that  a  reasonably  prudent 
man  would  discover  and  seize.  Ham  v. 
Delaware  &  H.  Canal  Co.  155  Pa.  548,  26 
Atl.  757,  20:  682 
Entering  car  before  time  for  starting. 

267.  A  woman  who  enters  a  car  left 
standing,  with  brakes  set,  on  the  ground  of 
a  sanitarium,  a  few  minutes  before  the  time 
for  it  to  start  and  when  no  one  is  in  chariore 
of  it.  but  when  other  women  and  children 
are  already  in  it,  is  not  guilty  of  negli- 
gence, as  matter  of  law,  which  will  prevent 
her  recovery  for  injuries  occasioned  by  the 
starting  of  the  car  when  a  small  boy  let  off 
the  brakes. — especially  where  rules  against 
entering  the  car  before  notice  had  never 
been  published  or  posted,  and  she  had  no  ac- 
tual knowledge  of  them.  Western  Mary- 
land R.  Co.  V.  Herold,  74  Md.  510.  22  Atl. 
323,  14:75 
Projection  from  window. 

Question  for  Jury  as  to,  see  Trial,  311,  312. 

See  also  infra,  310. 

For  Editorial  Notes,  see  infra,  IV.  §  29. 

208.  A  {>assenger  is  not,  as  a  matter  of 
law,  guilty  of  such  contributory  negligence 
in  permitting  his  elbow  to  project  3  or  4 
inches  through  an  open  window  as  to  re- 
lieve the  company  from  liability  for  its 
gross  negligence  in  constructing  a  freight 
platform  so  near  the  track  that  the  pas- 
senger's arm  is  broken  by  contact  with  a 
bak>  of  cotton  thereon.  Kird  v.  New  Or- 
leans &  N.  VV.  R.  Co.  109  La.  525.  33  So. 
587,  60:  727 

269.  A  passenger  riding  with  his  elbow 
slightly  projecting  out  of  a  car  window  is 
not  thereby  precluded  from  recovering  for 
an  injury  to  his  hand  and  wrist,  which  were 
inside  the  car,  from  a  stick  of  wood  com- 
ing in  through  the  open  window,  unless  the 
fact  that  his  elbow  was  out  of  the  window 
contributed  to  the  injurv.  Moakler  v.  Port- 
land &  W.  V.  R.  Co.  18  "Or.  189.  22  Pac.  948. 

6:  656 

270.  A  youth  sixteen  years  of  age,  trav- 
eling alone,  cannot  be  held,  merely  on  ac- 
count of  his  immature  years,  to  have  been 
incaj)al)le  in  law  of  exercising  sufficient  disv 
cretion  and  judgment  to  avoid  incurring  the 
risk  of  a  voluntary  exposure  of  his  person 
beyond  the  sides  of  a  moving  train.  Bene- 
dict V.  Minneai)()lis  &  St.  L.  R.  Co.  86  Minn. 
224,  90  N.  W.  360,  57 :  639 

271.  While  it  is  the  absolute  duty  of  a 
railway   carrier   of   passengers  to  provide  a 


safe  and  secure  place  for  its  patrons  to 
ride  within  its  ears,  when  such  duty  is  per- 
formed the  passenger  has  no  right  to  vol- 
untarily extend  his  person  beyond  the  line 
of  a  moving  car,  or  ride  upon  its  platform; 
and  if  he  does  so,  and  injury  follows,  no 
recovery  can  be  had  therefor.  Id. 

272.  A  carrier  is  not  liable  for  injury  to 
a  passenger's  hand  from  striking  against  a 
bridge,  where  he  put  it  out  of  the  car  win- 
dow, although  it  projected  but  3  inches. 
Richmond  &  D.  R.  Co.  v.  Scott,  88  Va.  958, 
14  S.  E.  763,  16:  91 

273.  A  passenger  who  protrudes  his  el- 
bow through  a  window  in  a  railway  coach 
as  it  is  passing  through  a  tunnel,  so  that 
it  strikes  against  timbers  so  near  that  the 
sides  of  the  cars  often  touch  them  in  the 
natural  and  usual  oscillation  of  the  cars, 
is  guilty  of  negligence,  as  matter  of  law, 
although  it  was  protruded  inadvertently 
and  did  not  extend  more  than  1%  inches 
beyond  the  outer  surface  of  the  side  of  the 
car.  Clark  v.  Louisville  &  N.  R.  Co.  101 
Ky.  34,  39  S.  W.  840,  36:  123 
Remaining  in  unheated  car. 

274.  A  passenger  on  a  railway  train  is 
not,  as  matter  of  law,  guilty  of  such  con- 
tributory negligence  as  will  prevent  a  re- 
covery for  a  severe  illness  resulting  from 
the  failure  to  properly  heat  the  car,  by  re- 
maining on  the  train  after  he  had  an  op- 
portunity to  get  off,  by  failing  to  attempt 
to  get  any  wraps  from  his  trunk  in  the 
baggage  car,  by  taking  off  his  overcoat  to 
give  his  wife  the  benefit  of  the  same,  or 
by  wearing  inadequate  clothing  to  meet  the 
demands  of  the  season.  Taylor  v.  Wabash 
R.  Co.  (Mo.)  38  S.  W.  304,  42:  110 
Riding  on  overloaded  boat. 

275.  The  owner  of  a  steamship  is  liable 
for  the  death  of  a  passenger  drowned  by 
the  swamping  of  a  boat  sent  to  convey  him 
from  the  shore  to  the  vessel,  where  the  of- 
ficer in  charge  of  the  boat  permits  it  to 
attempt  the  journey  in  an  overloaded  con- 
dition, although  the  passengers  are  them- 
selves guilty  of  contributory  negligence  in 
failing  to  leave  the  boat  when  told  it  is 
overloaded,  and  requested  to  do  so.  Weiss- 
haar  v.  Kimball  Steamship  Co.  128  Fed.  397. 

65:  84 
Falling  over  fender. 

276.  A  street  car  passenger  who  is  in- 
jured after  leaving  the  car  and  while  at- 
tempting to  pass  behind  the  car  in  the  dark, 
by  falling  over  a  fender  which  had  become 
disarranged  without  the  knowledge  of  the 
company,  and  was  projecting  from  the  rear 
of  the  car.  cannot  hold  the  street  railway 
companv  liable  for  the  injurv.  Garsran  v. 
West  End  Street  R.  Co.  176  'Mass.  106.  57 
N.  E.  217,  49:421 
Riding  on  top  of  car. 

277.  Where  a  shipper  of  stock  of  a 
freight  train  voluntarily  went  on  too  of  the 
train  in  obedience  to  an  order  or  direction 
of  the  conductor  to  help  sisjnal,  and,  while 
watching  a  brakeman  trying  to  make  a 
coupling,  was  severely  injured  by  a  sudden 
forward  motion  or  jerk  of  the  train,  no  re- 


CARRIEKS,  II.   a,  4. 


357 


covery  can  be  had  against  the  railroad  com- 
pany for  his  injuries,  as  he  voluntarily 
placed  himself  in  a  position  of  known  dan- 
ger. Atchison,  T.  &  S.  F.  R.  Co.  v.  Lind- 
ley,  42  Kan.  714,  22  Pac.  703,  6:  640 

Injury  by  explosion. 

278.  A  passenger  on  a  railway  train 
which  is  stopped  for  some  time  by  tanks 
of  burning  oil  upon  the  track  who,  from  mo- 
lives  of  curiosity  and  pleasure,  leaves  a 
|)lace  fixed  as  a  temporary  station  at  a 
safe  distance  from  the  burning  oil,  and  goes 
within  85  feet  of  the  same  and  remains 
there  for  several  minutes,  is  guilty  of  such 
contributory  negligence  as  will  prevent  re- 
covery for  injuries  caused  by  an  explosion 
of  a  tank  by  which  burning  oil  is  thrown 
upon  him.  Conroy  v.  Chicago,  St.  P.  M.  & 
O.  R.  Co.  96  Wis.  243,  70  N.  W.  486,  38:  419 
Crossing  track. 

(Question  for  Jury  as  to,  see  Trial,  316-320. 

279.  A  person  crossing  a  street  car  track 
in  the  dark  on  a  crosswalk  for  the  purpose 
of  taking  passage,  after  proper  signals  have 
been  given  to  stop  the  car,  is  not  negligent 
in  assuming  that  the  car  will  heed  the  sig- 
nals, and  that  it  is  running  at  lawful  speed 
only,  where  reliance  upon  such  assumption 
is  not  apparently  attended  with  danger. 
Walker  v.  St.  Paul  City  R.  Co.  81  Minn. 
404,  84   N.  W.   222,  51 :  6.-^2 

279a.  One  who  steps  around  behind  a 
street  car  from  which  he  alights,  and  at- 
tempts to  cross  a  parallel  track  without 
looking  for  an  approaching  car  coming  from 
the  other  direction  on  a  straight  track,  is 
guilty  of  such  negligence  as  will  preclude 
a  recovery  for  injuries  if  struck  by  the  car. 
Baltimore  Traction  Co.  v.  Helms,  84  Md. 
515,   36   Atl.    119,  36:  215 

280.  A  passenger  alighting  from  a  train 
at  a  place  where  he  must  cross  a  track  to 
reach  the  public  highway  may,  in  the  ab- 
sence of  warning,  presume  that  trains  will 
not  be  so  operated  as  to  impose  on  him  the 
same  degree  of  care  which  he  would  be 
obliged  to  exercise  if  he  were  not  a  pas- 
senger. Chesapeake  &  O.  R.  Co.  v.  King, 
40  C.  C.  A.  432,  99  Fed.  251,  49:  102 

281.  A  passenger  has  the  right  to  pre- 
sume that  a  train  will  not  be  permitted  to 
pass  between  that  from  which  he  alights 
and  the  station,  in  violation  of  a  rule  of 
the  company,  while  passengers  are  being  re- 
ceived and  discharged,  and  is  not  necessa- 
rily chargeable  with  contributory  negligence 
for  failure  to  look  and  listen  before  pro- 
ceeding over  the  tracks  towards  the  station. 
Atlantic  City  R.  Co.  v.  Goodin  (N.  J.  Err.  & 
App.)  62  X.  J.  L.  394,  42  Atl.  333,      45:  671 

282.  A  passenger  is  justified  in  assum- 
ing that  no  train  will  be  permitted  to  pass  a 
station  at  which  a  passenger  train  has 
stopped  for  the  discharge  and  receipt  of 
passengers,  in  such  manner  as  to  interfere 
with  them.  Hence  he  cannot  he  held  guilty 
of  contributory  negligence  as  matter  of  law 
because  he  failed,  before  leaving  the  car  on 
which  he  was  traveling,  to  look  out  for  an 
approaching  train  by  which  he  was  injured. 


Philadelphia,  W.  &  B.  R.  Co.  v.  Anderson, 
72  Md.  519,  20  Atl.  2,  8:  673 

283.  A  passenger  who  steps  from  a  train 
while  slowing  up  before  stopping,  and  while 
the  exhaust  steam  of  the  engine  is  making 
considerable  noise,  who  looks  and  sees  no 
train  approaching  on  a  side  track,  has  a 
right  to  assume  that  none  is  coming  at 
such  a  rate  of  speed  as  will  preclude  him 
from  crossing  a  single  track,  and  is  not 
guilty  of  negligence,  as  a  matter  of  law, 
in  attempting  to  cross  the  track,  although, 
if  he  had  looked  in  the  right  direction  at 
the  moment  of  stepping  upon  the  track,  he 
could  have  seen  the  approaching  train. 
Parsons  v.  New  York  C.  &  H.  R.  R.  Co.  113 
N.  Y.  355,  21  N.  E.  145,  3:  683. 

284.  Failure  by  a  passenger  to  look  and 
listen  for  approaching  trains  before  cross- 
ing tracks  intervening  between  his  train 
and  an  eating  house  maintained  by  the  car- 
rier for  the  accommodation  of  passengers 
is  not  negligence  per  se.  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Shean,  18  Colo.  368,  33  Pac.  108, 

20:  729 

285.  A  passenger  who  leaves  his  car  while 
the  train  is  standing  on  a  side  track  await- 
ing the  arrival  of  another  train,  at  a  place 
not  designed  for  the  oischarge  of  passen- 
gers, and  crosses  the  track  to  a  pump  to 
get  a  drink  of  water,  but,  on  hearing  the 
whistle  of  the  incoming  train,  starts  back 
on  a  rapid  run  to  regain  his  car,  and  at- 
tempts to  cross  in  front  of  the  train  when 
it  is  about  50  feet  distant  from  him.  and 
is  struck  and  killed,  is  guilty  of  such  neg- 
ligence as  will  preclude  recovery  for  his 
death  from  the  railroad  company.  Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  Sattler,  64  Neb. 
636,  90  N.  W.  649,  57:  890 

286.  Passengers  who  have  left  their  train 
at  an  intermediate  station  while  on  a  side 
track  for  the  purpose  of  letting  another 
train  pass  are  bound  to  exercise  reasonable 
care  and  caution  to  avoid  injury  from  pass- 
ing trains,  although  the  company  has  per- 
mitted the  practice  of  leaving  and  re-enter- 
ing the  train  under  such  circumstances;  and 
they  have  no  right  to  expect  such  a  place 
of  ingress  or  egress  to  be  as  safe  as  a  sta- 
tion platform,  or  to  rely  on  the  conductor's 
call  of  "All  aboard"  as  indicating  that  they 
can  cross  the  track  safely  without  looking 
for  approaching  trains.  DeKay  v.  Chica^, 
M.  &  St.  P.  R.  Co.  41  Minn.  178,  43  N.  W. 
182,  4:  632 

287.  Recovery  for  injuries  to  one  struck 
by  a  train  upon  a  track  which  he  was 
obliged  to  cross  to  reach  the  train  which  he 
desired  to  take  is  barred,  under  Ga.  Code,  § 
3830,  providing  that  if  the  plaintiff  by  or- 
dinary care  could  have  avoided  the  conse- 
([uence  to  himself  caused  by  defendant's 
negligence  he  is  not  entitled  to  recover,  if 
such  person  failed  to  use  his  senses  to  as- 
certain the  approach  of  the  train,  and  could 
have  avoided  the  consequence  of  the  com- 
pany's negligence  by  the  exercise  of  ordi- 
nary care.  Southern  R.  Co.  v.  Smith.  30 
C.  C.  A.  58,  52  U.  S.  App.  708,  86  Fed.  292. 

40:  746 


358 


CARRIERS,  II.    a,  4. 


Place  of  sleeping. 

288.  A  steamboat  passenger,  who,  upon 
being  refused  a  berth  in  accordance  with  the 
transportation  contract,  elects  to  occupy  a 
couch  in  the  cabin,  rather  than  nay  the 
small  additional  sum  demanded  for  the 
berth,  assumes  the  risk  of  injury  from  so 
doing  through  drafts  and  insufficient  cov- 
erin<^.  McWethy  v.  Detroit,  G.  R.  &  W.  R. 
Co.  127  Mich.  333,  86  N.  W.  827,        55:  306 

289.  A  steamship  company  is  not  liable 
for  the  death  of  a  passenger  caused  by 
sleeping  on  a  wet  mattress,  where,  because 
of  an  extraordinary  passenger  list  he  could 
not  be  furnished  with  a  berth,  and  to  reach 
his  destination  he  agreed  to  make  use  of  a 
mattress  borrowed  by  the  company  from  a 
storekeeper,  the  condition  of  which  he  had 
an  opportunity  to  inspect.  Van  Anda  v. 
Northern  Nav.  Co.  49  C.  C.  A.  596,  111  Fed. 
765,  55:  544 

(2)   Riding  on  Platform  or  Footboard. 

Presumption  of  Negligence  in,  see  Evidence, 

578. 
Question  for  Jury  as  to,  see  Trial,  308a-310. 
See  also  supra,  35,  36,  271. 
For  Editorial  Notes,  see  infra,  IV.  §  29. 

290.  The  law  of  negligence  governing  the 
standing  on  a  platform  of  a  moving  inter- 
urban  car  outside  of  a  municipality  is  the 
same  as  in  the  case  of  steam  cars;  and 
where  a  rule  of  the  company  prohibits  pas- 
sengers from  standing  on  the  platform,  and 
notice  thereof  is  properly  posted,  or  where 
the  passengers,  upon  request,  refuse  to  en- 
ter the  car,  there  being  in  either  case  vacant 
seats,  they  remain  on  the  platform  at  their 
peril.  Cincinnati,  L.  &  A.  Electric  Street 
R.  Co.  V.  Lohe,  68  Ohio  St.  101,  67  N.  E. 
161,  67:637 

291.  While  interurban  railroad  companies 
are  subject  to  the  same  regulations  and 
have  all  the  powers  of  street  railroad  com- 
panies, so  far  as  applicable,  the  law  of  neg- 
ligence governing  the  standing  on  a  plat- 
form of  a  moving  street  car  in  a  munici- 
pality is  not  applicable  to  the  case  of  stand- 
ing on  such  platform  of  a  moving  interur- 
ban car  in  the  open  country.  Id. 

292.  Riding  on  the  front  platform  of  an 
electric  street  car  is  not  negligence  as  a 
matter  of  law.  Watson  v.  Portland  &  C.  E. 
R.  Co.  91  Me.  584,  40  Atl.  699,  44:  157 

293.  A  passenger  is  not  bound  to  antici- 
pate the  danger  and  be  on  the  lookout  for 
trolley  poles  while  riding  with  permission 
on  tne  footboard  of  a  street  car,  unless  he 
has  knowledge  of  the  proximity  of  such 
poles  to  the  track.  Elliott  v.  Newport 
Street  R.  Co.   18  R.  I.  707,  28  Atl.  338, 

23:  208 

294.  Riding  on  the  platform  of  a  street 
car  when  there  is  room  inside  is  not  negli- 
gence per  se.  Upham  v.  Detroit  City  R.  Co. 
85  Mich.  12,  48  N.  W.  199,  12:  -129 

295.  A  passenger's  standing  on  the  plat- 
form of  the  trail  car  in  a  moving  cable 
train,    in    a/^cordance    with    custom,    is    not 


negligence  as  matter  of  law,  in  the  ab- 
sence of  any  rule  of  the  company  against 
it.  Muldoon  v.  Seattle  aty  R.  Co.  7  Wash. 
528,   35   Pac.   422,  22:  794 

296.  An  attempt  by  a  passenger  to  escape 
from  danger  by  going  out  on  the  car  plat- 
form cannot  be  considered  contributory  neg- 
ligence, when  he  acts  as  a  man  of  ordinary 
prudence  would  under  the  circumstances; 
but  the  fact  that  he  was  injured  in  such 
attempt,  while  others  exposed  to  the  same 
danger  who  remained  quiet  were  not  in- 
jured, should  be  considered  by  the  jury  in 
determining  whether  he  acted  with  ordi- 
nary prudence.  Mitchell  v.  Southern  P.  R. 
Co.  87  Cal.  62,  25  Pac.  245,  11:  130 

297.  A  statute  providing  that  a  railroad 
company  shall  not  be  liable  for  injuries  re- 
ceived by  any  passenger  on  the  platform  of 
a  car  will  not  prevent  a  recovery  for  any 
injury  received  in  such  place  by  a  passen- 
ger who  went  there  for  the  purpose  of  es- 
caping danger,  and  whose  act  in  so  doing 
was  such  as  a  person  of  ordinary  care  and 
prudence  might  do  under  the  circumstances. 

Id. 

298.  A  passenger  riding  on  the  platform 
of  a  street  car  is  not  a  passenger  "on  any 
railroad"  who  assumes  the  risk  of  injury, 
under  the  provisions  of  the  New  York  gen- 
eral railroad  law  of  1850,  §  46,  as  that  was 
not  intended  to  apply  to  street  railways. 
Vail  V.  Broadwav  R.  Co.  147  N.  Y.  377,  42 
N.  E.  4,  *  30:  626 

299.  It  is  prima  facie  negligence  for  a 
passenger  to  ride  on  the  platform  or  step 
of  a  car  while  the  train  is  running  at  30 
miles  an  hour  around  curves,  and  is  sway- 
ing and  jolting  badly.  Worthington  v.  Cen- 
tral Vermont  R.  Co.  64  Vt.  107,  23  Atl.  590. 

15:  326 

300.  A  passenger  riding  on  the  platform 
of  a  car,  and  refusing  to  go  inside  on  the 
conductor's  request,  is  guilty  of  contribu- 
tory negligence  which  will  preclude  recov- 
ery for  injuries  caused  by  falling  from  the 
train.  Fisher  v.  West  Virginia  &  P.  R.  Co. 
42  W.  Va.  183,  24  S.  E.  570,  33:  69 

301.  A  passenger  on  the  running  board 
along  the  side  of  a  street  car  cannot  re- 
cover for  injuries  caused  by  coming  in  con- 
tact with  a  pillar  near  the  track  while  at- 
tempting to  pass  around  the  conductor,  who 
is  also  on  the  board,  in  obeying  the  con- 
ductor's direction  to  come  forward  and  get 
a  s«at,  unless,  under  all  the  circumstances, 
he  acts  as  a  man  of  ordinary  prudence 
would  act.  Third  Ave.  R.  Co.  v.  Barton. 
46  C.  C.  A.  241,  107  Fed.  215,  52:  471 

302.  Going  from  a  car  in  which  there  is 
plenty  of  standing  room  to  the  lower  step 
of  the  car  platform  in  order  to  vomit,  when 
the  train  is  running  at  the  rate  of  25  miles 
per  hour,  constitutes  such  contributory  neg- 
ligence on  the  part  of  a  boy  fifteen  years 
of  age  as  to  preclude  any  recovery  from  the 
carrier  for  his  injuries  when  thrown  off  by 
a  jerk  of  the  train.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Moneyhun,  146  Ind.  147,  44  N. 
E.   1106,  34:  141 


CARRIERS,  II.    a.  4. 


859 


Of  crowded  car. 

For  Editorial  Notes,  seo  infra,  IV.  §  10. 

303.  Mere  standing  place  on  the  inside  of 
a  car  is  not  ordinarily  such  proper  accom- 
modation for  a  passenger  as  will  make  it 
negligence  for  him  to  stand  on  the  car 
platform.  Graham  v.  McNeill,  20  Wash. 
46(5,  55  Pac.  631,  43:  300 

304.  A  passenger  is  not  guilty  of  negli- 
gence in  standing  on  the  platform  of  a  car 
when  there  are  no  vacant  seats  in  the  car 
and  the  platform  is  the  most  comfortable 
and  convenient  place  for  him  to  occupy  on 
the  trip.  Id. 

305.  Excursionists  have  the  right  to  re- 
turn home  on  the  train  by  which  they  are 
taken  out,  and  if,  owing  to  the  crowded 
condition  of  the  train,  they  can  secure  no 
safer  position  than  the  platforms,  it  is  not 
negligence  on  their  part  to  ride  thereon. 
Jackson  v.  Natchez  &  W.  R.  Co.  114  La.  981, 
38  So.  701,  70:  294 

306.  The  right  to  stand  and  ride  upon 
the  platform  of  a  car  exists  where,  on  the 
return  of  an  excursion,  a  passenger  with  an 
excursion  ticket  is  unable  to  get  room  in- 
side the  car,  and  is  not  informed  that  he 
can  be  carried  on  another  train.  Lynn  v. 
Southern  P.  Co.  103  Cal.  7,  36  Pac.  1018, 

24:  710 

307.  It  is  not  negligence,  as  matter  of 
law,  for  a  passenger  who  is  upon  a  train 
so  crowded  that  he  cannot  find  a  seat,  and 
becomes  sick  because  of  lack  of  proper  ven- 
tilation and  tobacco  smoke,  to  seek  relief 
upon  the  platform  when  unable  to  reach  a 
window.  Morgan  v.  Lake  Shore  &  M.  S.  R. 
Co.  138  Mich.  626,  101  N.  W.  836,        70:  609 

308.  The  failure  of  a  carrier  to  furnish 
a  seat  for  a  passenger  does  not  justify  him 
in  going  to  a  place  of  peril  on  the  platform 
when  there  is  plentv  of  standing  room  in 
the  car.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 
Moneyhun,  146  Ind.  147,  44  N.  E.  1106, 

34:  141 

309.  A  person  is  not  excused  from  con- 
tributory negligence  in  standing  on  the  plat- 
form of  a  car  while  the  train  was  in  motion 
when  there  was  standing  room  in  the  car, 
because  his  position  in  the  car  was  one  of 
some  discomfort  to  himself  and  to  others. 
Worthington  v.  Central  Vermont  R.  Co.  64 
Vt.   107.  23  Atl.  590,  15:  326 

310.  The  voluntary  exposure  of  the  body 
beyond  the  sides  of  a  moving  train  by  a 
passenger  riding  on  the  platform  is  such 
negligence  as  will  preclude  recovery  for  his 
death  caused  by  coming  in  contact  with  an 
iron  post  near  the  track,  although  hs  was 
forced  to  ride  on  the  platform  because  of 
the  overcrowded  condition  of  the  car,  and 
the  carrier  would  have  been  liable  for  in- 
jury resulting  to  him  therefrom,  in  the  ab- 
sence of  any  negligence  on  his  part.  Bene- 
dict v.  Minneapolis  &  St.  L.  R.  Co.  86  Minn. 
224,  90  N.  W.  360,  57 :  639 
Preparatory  to  alighting, 

311.  Standing  on  the  platform  of  a  cable 
car,  with  one's  back  against  the  dashboard^ 
will  not  constitute  negligence  on  the  part 
of  a  passenger  who  goes  out  oi  the  car  as 


he  approaches  his  destination,  so  as  to  pre- 
clude a  recovery  for  injury  caused  by  a 
sudden  jerk  of  the  car,  throwing  him  into 
the  street.  North  Chicago  Street  R.  Co.  v. 
Baur,  179  111.  126,  53  N.  E.  568,  45:  108 

312.  A  passenger  who  leaves  his  seat  in  a 
car  on  a  dummy  railroad  and  goes  down  on 
the  lower  step  of  the  back  platform  as  the 
train  slows  up  for  a  street  crossing  at  which 
he  is  to  stop,  and  while  it  is  passing  over 
the  street  at  a  speed  of  about  three  miles 
an  hour,  is  not  guilty  of  negligence,  as  mat- 
ter of  law,  which  will  preclude  his  recov- 
ering for  injuries  caused  by  the  sudden  in- 
crease of  speed,  which  throws  him  to  the 
ground.  Watkins  v.  Birmingham  R.  &  E. 
Co.   120  Ala.  147,  24  So.  392,  43:  297 

313.  A  passenger  who  gets  on  the  step 
of  a  car  for  the  purpose  of  alighting,  when 
the  car  is  slowing  down  at  a  stopping  place, 
is  not  riding  on  the  platform,  within  the 
meaning  of  the  carrier's  regulations,  but  is 
merely  using  it  as  a  means  of  egress.     Id. 

314.  A  statute  forbidding  a  passenger  to 
attempt  to  leave  a  train  at  a  place  other 
than  an  established  depot,  without  the  con- 
sent of  the  person  in  charge,  is  not  violated 
by  making  preparations  with  intent  to  leave 
at  a  place  elsewhere  than  at  a  depot  if  the 
train  shall  stop.  Smith  v.  ^tna  L.  Ins.  Co. 
115  Iowa,  217,  88  N.  W.  368,  56:  271 
While  changing  cars. 

For  Editorial  Notes,  see  infra,  IV.  §  29. 

315.  The  act  of  crossing  a  car  platform 
from  one  car  to  another  while  the  train  is  in 
motion  is  not  negligence  as  matter  of  law  in 
the  absence  of  any  rule  of  the  carrier  pro- 
hibiting it  or  any  attempt  to  prevent  pas- 
sengers from  so  doing.  McAfee  v.  Huide- 
koper,  9  App.  D.  C.  36,  34:  720 

316.  It  is  not,  as  matter  of  law,  negli- 
gence contributing  to  injury  from  an  elec- 
tric shock  caused  by  imperfect  insulation, 
for  a  passenger  to  swing  around  from  the 
step  of  an  electric  street  car  to  that  of  the 
trailer,  when  the  railway  company  has  no 
rule  prohibiting,  and  allows  it  without  ob- 
jection. Burt  V.  Douglas  County  Street  R. 
Co.  83  Wis.  229,  53  N.  W.  447,  18 :  479 

317.  A  passenger  who  goes  to  one  car 
from  another  of  a  moving  train  to  find  a 
seat  does  not,  while  so  upon  the  platform, 
take  the  risk  of  collision  with  another  train; 
and  when  his  conduct  does  not  contribute 
to  an  injury  from  such  collision,  he  may 
recover  from  the  railroad  company  for  its 
negligence.  Dewire  v.  Boston  &  M.  R.  Co. 
148  Mass.  443,  19  N.  E.  523,  2:  166 

(3)  Riding  in  Wrong  Car. 

As  Proximate  Cause  of  Injury,  see  Proxi- 
mate Cause,  77. 
Instructions  as  to,  see  Trial,  829. 
P'or  Editorial  Notes,  see  infra,  IV.  §§  14,29. 

318.  For  a  postal  clerk  to  ride  in  a  mail 
car  while  off  duty,  in  the  absence  of  any 
rule  of  the  railroad  company  forbidding  him 
to  do  so,  is  not  contributory  negligence 
which  will  prevent  recovery  of  damaces  for 
injuries  caused  by  a  collision  of  trains.   Eal- 


360 


CARRIERS,  II.    a,  5. 


timore  &  0.  R.  Co.  v.  State  use  of  Wiley. 
72   Md.   36,   18  Atl.   1107,  6:  706 

319.  A  passenger  who  rides  in  an  ex- 
press car  in  violation  of  a  known  rule  of 
the  carrier,  even  with  the  permission,  con- 
nivance, or  knowledge  of  the  conductor  of 
thi!  train,  and  is  there  injured  through  the 
negligence  of  the  carrier,  cannot  recover  if 
ho  would  not  have  been  injured  had  he  re- 
nin uied  in  the  passenger  car  as  required  by 
the  rules.  P^lorida  S.  R.  Co.  v.  Hirst,  30  Fla. 
1.   11   So.  506,  16:631 

."20.  A  woman  who  takes  passage  in  a 
baggage  car,  when  no  passenger  cars  are 
provided  for  a  passenger  train,  and  pressing 
domestic  duties  call  for  her  immediate 
transportation,  does  not  thereby  renounce 
her  right  as  a  passenger  to  safety  and  pro- 
tection. Baltimore  &  P.  R.  Co.  v.  Swann.  81 
-Md.  400,  32  Atl.  175,  31:  313 

321.  A  member  of  a  theatrical  troupe,  rid- 
ing in  the  show  car,  does  not,  as  matter  of 
1:,  w.  assume  the  hazard  of  the  journey, — es- 
pecially where  it  is  not  shown  that  the  car 
was  not  a  safe  one  to  ride  in  or  that  he  had 
been  forbidden  to  ride  there,  but  there  is 
some  evidence  that  his  employment  requires 
him  to  ride  there.  Blake  v.  Burlington,  C. 
R.  &  N.  R.  Co.  89  Iowa.  8,  56  N.  W.  405, 

21 :  559 

o'22.  A  stockowner  on  a  freight  train,  un- 
der a  contract  to  care  for  his  stock,  but  to 
ride  in  the  caboose,  will  not  be  negligent  in 
icrnaining  in  the  stock  car,  if,  before  he  has 
finished  attending  to  the  stock,  the  train 
starts  and  proceeds  upon  its  journey.  Illi- 
nois C.  R.  Co.  v.  Beebe,  174  111.  13,  50  X.  E. 
1019.  43:210 

323.  Taking  an  improvised  seat  made  by 
a  plank  across  empty  kegs,  on  a  flat  car 
next  to  the  engine  upon  a  special  train,  and 
remaining  there  after  a  request  by  the  con- 
ductor to  go  into  the  box  car.  to  which  the 
l)assenger  replies  that  he  wants  to  ride  on 
the  flat  car  and  see  the  country,  on  which 
the  conductor  saj'S  nothing  more,  is  not 
such  negligence,  as  a  matter  of  law,  as  will 
prevent  recovery  for  the  death  of  the  pas- 
senger in  consequence  of  the  derailment  of 
the  train  caused  by  negligence  in  its  man- 
agement, although  if  the  passenger  had  been 
inside  the  box  car  he  might  not  have  been 
killed.  But  it  is  a  question  for  the  jury 
whether  an  ordinarily  prudent  man  could 
have  reasonably  anticipated  that  by  taking 
that  jjosition  he  Avas  exposing  himself  to 
the  injury  received ;  and  also  whether  the 
conductor  consented  to  his  remaining  there; 
and,  if  so,  whether  the  train  was  managed 
with  the  care  and  caution  commensurate 
with  the  passenger's  risk  in  that  situation; 
and  whether  his  injury  was  or  was  not  the 
direct  and  inimediato  result  of  failure  to 
(lisrhargc  that  dutv.  Wagner  v.  Missouri 
P.  K.  Co.  n?  Mo.  r,\2,  10  S.  W.  486,         3:  156 

324.  Where,  in  an  action  for  personal  in- 
juries to  a  civil  engineer  employed  l)y  a 
railroad  company,  while  riding,  under  or- 
flers,  on  a  wrecking  train,  over  a  new  track 
which  he  was  constructing,  to  the  front,  in 
firder   to   aid    in    putting   upon    the   track    a 


derailed  engine,  it  appeared  that  the  train 
consisted  of  a  wrecking  car  in  front,  a  ca- 
boose next,  fixed  up  as  a  tool  ear,  then  sev- 
eral flat  cars,  and  a  box  car  in  the  rear;  and 
the  plaintiff  was  riding  in  the  tool  car, 
which  was  as  fit  for  passengers  as  any, — it 
was  held  that  he  was  not.  as  a  matter  of 
law,  guilty  of  negligence  in  riding  there  in- 
stead of  in  the  rear  car,  which  was  fixed 
up  as  a  way  car,  although  in  the  accident 
which  derailed  the  tool  car  and  injured  the 
plaintiff  the  rear  car  was  not  derailed.  Me- 
loy  V.  Chicago  &  N.  W.  R.  Co.  77  Iowa,  743, 
42  N.  W.  563,  4:  287 

5.  Ejection  of  Passenger  or  Trespasser. 

a.  In  General. 

Care  Required  from  Ejected  Passenger,  see 
supra.  266. 

Punitive  Damages  for,  see  Damages,  76-81. 

Measure  of  Damages  for,  see  Damages,  III. 
e,  2;   Trial,  660. 

Recovery  for  Mental  Anguish  from,  see 
Damages,  600,  610. 

Remedy  for  Wrongful  Ejectment,  see  Elec- 
tion of  Remedies,  26. 

Judicial  Notice  as  to  Brakeman's  Author- 
ity  as  to,   see   Evidence,   92. 

Presumption  as  to,  see  Evidence,  293. 

Evidence  as  to  Trouble  in  Paying  Fare  on 
Other  Occasion,  see  Evidence,  1952. 

Of  Colored  Person,  Evidence  as  to,  see  Evi- 
dence, 2077. 

Variance  in  Proof  as  to,  see  Evidence,  2412. 

Engineer  Throwing  Steam  on  Trespasser 
on  Footboard,  see  Negligence,  169. 

Alleging  Compliance  with  Rules,  see  Plead- 
ing, 229. 

Question  for  .Jury  as  to,  see  Trial,  297. 

See  also  infra.  521,  631,  640. 

For  Editorial  Notes,  see  infra,  IV.  §  19. 

325.  Removing  a  passenger  from  a  train 
of  cars  while  the  train  is  moving  very  slow- 
ly is  not  negligence  or  wantonness  per  se. 
Southern  Kansas  R.  Co.  v.  Sanford,  45  Kan. 
372,   25   Pac.   891,  11:432 

326.  A  street  car  company  is  liable  to 
damages  for  injuries  occasioned  by  the 
wrongful,  wanton,  and  malicious  ejection  of 
a  passenger  by  its  conductor.  Such  act  is 
within  the  general  scope  of  the  conductor's 
employment.  And  it  is  immaterial  that 
the  person  ejected  is  only  a  trespasser,  if  the 
manner  of  the  'ejection  be  violent  and  ma- 
licious. North  Chicago  City  R.  Co.  v.  Gast- 
ka,  128  111.  613,  21  N.  E.  522,  4:  481 

327.  Authority  of  a  brakeman  on  a  freight 
train  to  eject  a  passenger  cannot  be  implied, 
so  as  to  render  the  employer  liable  for  his 
acts  in  this  respect,  from  rules  of  the  com- 
pany providing  that  such  trains  shall  not 
carry  passengers,  and  also  that  the  brake- 
men  must  familiarize  themselves  with  the 
rules,  but  also  providing  that  brakemen  are 
subject  at  all  time  to  the  orders  of  the 
conductors.  Randall  v.  Chicago  &  G.  T.  R. 
Co.  113  Mich.  115,  71  N.  W.  450,  38:  66U 


CARRIERS,  11.    a,  5. 


361 


Of  trespasser. 

Opinion  as  to  Brakeman's  Duty  in  Regard 
to,  see  Evidence,  1425. 

328.  A  railroad  company  may  eject  a  tres- 
passer from  its  train,  although  a  storm  is 
imminent,  wliere  he  is  ejected  at  a  safe 
place.  Burch  v.  Baltimore  &  P.  R.  Co.  3 
App.    D.    C.    346,  26:  129 

329-339.  A  railroad  company  cannot  eject 
from  its  train  a  boy  ten  years  old  who  is 
trespassing  on  it,  or  cause  him,  by  fright 
or  fear,  to  leave  the  train  while  it  is  in 
rapid  motion  so  as  to  endanger  his  life. 
Enright  v.  Pittsburgh  Junction  R.  Co.  198 
Pa.   166,  47  Atl.  938,  53:  330 

340.  The  tortious  act  of  a  brakeman  in 
throwing  coal  at  a  boy  on  the  tender  of  an 
engine,  by  which  he  knocks  him  off  or 
frightens  him  so  that  he  jumps  off,  causing 
him  to  be  run  over  and  killed  ,by  the  en- 
gine, renders  the  railroad  compSiny  liable. 
Pierce  v.  North  Carolina  R.  Co.  124  N.  C. 
83,  32  S.  E.  3.^9,  44:  316 

341.  The  throwing  of  rocks  and  clods  by  a 
brakeman  at  a  trespasser  stealing  a  ride 
on  rods  under  a  box  car  is  within  the  scope 
of  his  employment,  so  as  to  render  the  rail- 
road company  liable  for  the  death  of  the 
trespasser,  who  falls  under  the  wheels  when 
driven  out  by  the  rocks.  Dorsey  v.  Kan- 
sas City,  P.  &  G.  R.  Co.  104  La.  478,  29  So. 
177,  52:92 

342.  The  ejection  of  a  trespasser  from  the 
footboard  of  a  locomotive,  though  his  pres- 
ence there  does  not  interfere  with  the  ma- 
nipulation of  the  machinery  by  the  engineer, 
whose  position  is  inside  the  cab,  is  within 
the  autliority  of  the  engineer,  when  he  has 
possession  and  control  of  the  engine,  so  as 
to  charge  the  railroad  company  with  liabil- 
ity for  his  wrongful  conduct  in  exercising 
the  authority.  Galveston,  H.  &  S.  A.  R. 
Co.  V.  Zantzinger,  93  Tex.  64,  53  S.  W.  379. 

47 :  282 

343.  A  brakeman  has  implied  authority 
to  eject  trespassers  from  a  ear,  so  that  his 
master  will  be  liable  for  injuries  caused  by 
his  wantonly  and  wilfully  kicking  a  tres- 
passer from  a  moving  car  to  his  injury,  un- 
less entire  absence  of  such  authority  is 
shown  by  the  master.  Dixon  v.  Northern 
P.   R.   Co.   37   Wash.   310,   79   Pac.   943, 

68 :  895 
From  sleeping  car  berth. 
For  Editorial  Notes,  see  infra,  IV.  §§  15,  19. 

344.  A  sleeping  car  company  is  not  liable 
in  damages  for  ejecting  a  passenger  from  a 
berth  which  has  been  assigned  her  by  the 
conductor  of  the  car,  where  by  its  standing 
order  such  berth  was  reserved  for  passen- 
gers getting  upon  the  car  at  a  station  fur- 
ther along  the  road,  and  the  conductor  er- 
roneously assigned  such  berth  to  such  pas- 
senger, but  notified  the  latter  of  the  error 
within  a  reasonable  time  before  reaching 
such  station,  and  offered  her  another  berth 
in  the  car  equal  in  accommodation  to  that 
originally  assigned  her.  and  she  refused  to 
accept  such  berth  and  left  the  oar  without 
being  compelled  to  do  so.  Mann  Boudoir 
Car  Co.  V.  Dupre,  13  U.  S.  App.  183,  4  C.  C. 
A.  540,  54  Fed.  646,  21 :  289 


Duty  after  ejectien. 

Proximate   Cause  of   Injury  after  Ejection, 

see  Proximate  Cause,   75. 
See  also  infra,  425,  426;  Railroads,  270. 

345.  A  railroad  company  owes  no  duty 
to  a  trespasser  ejected  from  its  train  to 
provide  shelter  or  see  that  he  incurs  no  risk 
from  the  inclemency  of  the  weather  or  the 
fury  of  the  elements,  other  than  that  of 
common  humanity  to  abstain  from  unnec- 
essary violence  or  from  exercising  its  right 
under  circumstances  savoring  of  harshness 
and  cruelty.  Burch  v.  Baltimore  &  P.  R.  Co. 
3  App.  D.  C.  346,  26:  129 

346.  A  railroad  company  whicli  ejects 
from  its  cars  at  the  station  where  his  tick- 
et expires  a  drunken  passenger  acting  in  a 
boisterous  manner,  using  no  more  force  than 
is  reasonably  necessary,  is  not  liable  for 
any  injury  which  may  result  to  him  from 
his  effort  to  pursue  and  re-enter  the  train. 
Chesapeake  &  O.  R.  Co.  v.  Saulsberrv,  112 
Ky.  915,  66  S.  W.   1051,  56:  580 

347.  A  railroad  company  which  ejects  a 
drunken  passenger  from  its  cars  at  the  sta- 
tion where  his  ticket  expires  is  under  no 
obligation  to  stop  the  train  to  ascertain  thy 
extent  of  his  injuries  in  case  he  falls  in  at- 
tempting to  pursue  and  re-enter  the  train. 

Id. 

348.  A  somewhat  intoxicated  passenger 
who  gets  off  safely  without  assistance,  when 
told  that  he  must  pay  his  fare  or  leave  the 
train,  and  whom  the  conductor  has  seen  a 
few  minutes  before  in  an  eating-house  de- 
manding food  and  acting  somewhat  boister- 
ously, may  be  reasonably  supposed  to  be 
capable  of  reaching  a  place  of  safety,  where 
he  is  left  in  the  evening,  when  it  is  neither 
raining  nor  freezing,  within  200  yards  of  a 
dwelling  house,  and  not  far  from  the  rail- 
road station.  Roseman  v.  Carolina  C.  R. 
Co.  112  N.  C.  709,  16  S.  E.  766,  19:  327 

349.  A  conductor  is  not  bound  to  act  upon 
the  volunteered  opinion  of  any  passenger  as 
to  the  physical  or  mental  state  of  a  drunk- 
en man  who  has  been  expelled  from  the 
train,  where  he  has  no  reasonable  ground  to 
believe  that  the  man  is  unable  to  find  a 
place  where  he  will  be  safe.  Id. 

350.  A  railroad  company  is  liable  to  one 
who,  at  night,  without  right  and  while  in 
a  drunken  and  helpless  condition,  boards  a 
train  standing  in  a  cut,  and  is  immediately 
ejected  from  the  train  with  knowledge  on 
the  part  of  the  trainmen  that  a  passenger 
train  will  soon  pass  through  the  cut,  for 
injuries  by  the  latter  train,  which  its  super- 
intendent and  nearest  station  agent,  who 
have  been  informed  of  his  peril,  make  no  ef- 
fort to  avoid.  Waldron  v.  Louisville  &  N. 
R.  Co.  113  Ky.  30,  63  S.  W.  580,  54:  91» 

6.  Grounds   for. 

(1)  Misbehavior;  Disease. 

Misbehavior  and  drunkenness. 

See  also  supra,  347;   infra,  360. 

For  Editorial  Notes,  see  infra,  IV.  §   19. 

351.  The  use  of  indecent  or  profane  lan- 
guage in  a  street   car,  which  constitutes  a 


362 


CARRIERS,  II.   a,  5. 


breach  of  the  peace  for  which  a  person  may 
be  punished  by  fine  or  imprisonment,  justi- 
fies the  conductor  in  putting  the  offender 
off  the  car.  Robinson  v.  Rockland,  T.  & 
C.  Street  R.  Co.  87  Me.  387,  32  Atl.  994, 

29:  530 

352.  A  passenger  in  a  crowded  street  car 
in  which  there  are  many  ladies,  who,  on  be- 
ing requested  by  the  conductor  to  stop 
swearing,  denies  his  guilt,  and  when  told 
that  he  has  been  profane  calls  the  conductor 
"a  damned  liar,"  says  that  he  would  swear 
as  much  as  he  "damned  pleased,"  and  that 
he  "would  be  God  damned  if  he  would  put 
him  off  the  car,"- — should  be  ejected  from 
the  car  even  if  the  conductor  was  at  first 
in  error  in  charging  him  with  profanity. 

Id. 

353.  The  intoxication  and  misbehavior  of 
a  passenger  which  will  authorize  his  ex- 
pulsion from  a  train  will  not  justify  his  ex- 
pulsion without  exercising  due  ears  for  his 
safety,  having  reference  to  time,  place,  and 
surroundings.  Louisville  &  N.  R.  Co.  v. 
Johnson,  108  Ala.  62,  19  So.  51,  31:  372 

354.  Permitting  a  passenger  to  enter  a 
train  knowing  him  to  be  intoxicated  does 
not  deprive  the  carrier  of  a  right  to  eject 
him  when  he  becomes  boisterous  and  obnox- 
ious during  the  journev.  Louisville  &  X.  R. 
Co.  V.  Logan,  88  Kv.  232,  10  S.  W.  655. 

3:  80 
3.55.  An  intoxicated  passenger  who  was 
boisterous,  and  who  followed  the  conductor 
from  one  car  to  another  with  a  knife, 
threatening  to  kill  him,  causing  general  ex- 
citement among  the  passengers,  and  who, 
after  being  locked  in  the  smoking  car,  sly- 
ly pulled  the  bell  rope,  causing  the  train 
to  stop,  was  properly  ejected  from  the  train 
after  refunding  to  him  his  fate,  although 
it  was  at  night,  but  not  too  dark  to  see  the 
track  distinctly,  when  the  weather  was  not 
cold  or  inclement:  and  the  faet  that  he  was 
run  over  during  the  night  and  killed  by  an- 
other train  does  not  make  the  railroad  com- 
pany liable.  Id. 

356.  A  conductor  requiring  an  intoxicated 
man  to  leave  the  train  for  nonpayment  of 
fare  does  not  render  the  carrier  liable  for 
the  death  of  the  man  from  exposure,  where 
the  conductor  did  not  have  reasonable 
ground  to  believe  that  the  man  was  imable 
to  find  his  way  or  walk  to  the  nearest  house, 
or  to  the  railroad  station,  or  even  to  his 
own  father's  house,  which  was  not  far 
away.  Roseman  v.  Carolina  C.  R.  Co.  112 
N.  C.  709,  16  S.  E.  766,  19:  327 
Disease. 

357.  A  carrier  has  a  right  to  remove  from 
a  train  a  passenger  who  breaks  out  with 
eruptions  which,  from  tlie  best  medical  ad- 
vice that  can  be  obtained,  are  believed  to 
be  smallpox,  although  such  belief  may  after- 
wards turn  out  to  be  mistaken.  Paddock  v. 
Atchison,  T.  &  S.  F.  R.  Co.  37  Fed.  841, 

4:  231 

358.  Although  a  common  carrier  of  pas- 
sengers owes  obligations  to  its  well  passen- 
gers as  well  as  to  those  who  are  sick,  and 
is  bound  to  protect  the  rights  of  both ;  and 


although  when  the  condition  of  one  passen- 
ger, from  sickness  or  otherwise,  is  such  as 
to  be  inconsistent  with  the  safety,  health, 
or  even  reasonable  comfort,  of  his  fellow 
passengers,  regard  for  the  rights  of  the  lat- 
ter will  authorize  the  carrier  to  terminate 
the  carriage  by  excluding  him,— yet  this 
right  cannot  be  exercised  arbitrarily  and  in- 
humanely, or  without  due  care  and  provi- 
sion for  the  safety  and  well  being  of  the 
ejected  passenger.  ConoUy  v.  Crescent  City 
R.  Co.  41  La.  Ann.  57,  5  So.  259,  3:  133 

359.  A  passenger  stricken  with  apoplexy 
while  riding  on  a  street  car,  although  at- 
tended with  severe  vomiting,  to  the  incon- 
venience and  great  discomfort  of  other  pas- 
sengers, cannot  be"  removed  while  in  a 
speechless  and  helpless  condition  and  laid 
in  the  open  street  on  a  bleak,  drizzling  De- 
cember day,  and  there  abandoned,  with  no 
effort  to  procure  him  attention,  without  a 
gross  violation  by  the  carrier  of  its  duty 
as  such,  and  liability  for  resulting  dam- 
age. Id. 

360.  The  mistake  of  the  driver  in  suppos- 
ing that  a  passenger  was  drunk,  when  the 
latter  had  ridden  a  considerable  distance 
without  misbehavior,  and  had  been  guilty  of 
none  except  vomiting  occasioned  by  illness, 
cannot  excuse  the  company  for  ejecting  him 
and  leaving  him  uncared  for  on  the  street 
in  inclement  weather.  Id. 
Order  of  board  of  health. 

361.  The  ejection  of  a  passenger  from  a 
train  cannot  be  justified  by  a  void  order  of 
a  board  of  health  prohibiting  all  persons 
from  coming  into  the  state  by  train  until 
further  orders  of  the  board.  Wilson  v.  Ala- 
bama G.  S.  R.  Go.  77  Miss.  714,  28  So.  567, 

52:  357 

(2)  Nonpayment     of     Fare,     or     Defective 
Ticket. 

Punitive  Damages  for,  see  Damages,  81. 
Admissibility  of  Conductor's  Declarations  as 

to,  see  Evidence,  1633. 
Evidence  as  to  Nonpayment,  see  Evidence, 

1780. 
Tender  of  Unusual  Coin,  see  Money,  1. 
See  also  infra,  396,  397. 
For  Editorial  Notes,  see  infra,  IV.  §  19. 

362.  A  railroad  conductor  may  demand  a 
ticket  as  evidence  of  a  passenger's  right  of 
passage,  or,  on  failure  to  produce  it,  may 
demand  payment  of  fare,  and,  on  failure  to 
pay  it,  may  lawfully  eject  the  passenger 
from  the  train,  using  no  more  force  than  is 
necessary.  MacKay  v.  Ohio  River  R,  Co.  34 
W.  Va.  65,  11  S.  E.  737,  9:  132 

303.  A  passenger  who  refuses  to  pay  fare 
or  leave  the  train,  and  who  furnishes  only 
a  ticket  which  does  not  on  its  face  entitle 
him  to  passage  on  that  train,  although  he 
was  told  by  the  carrier's  agent  that  he 
could  ride  upon  it,  cannot  recover  for  in- 
juries received  in  putting  him  off  the  train 
without  more  force  than  is  necessary.  He 
should  either  pay  his  fare,  or  quietly  leave 
the  train  and  resort  to  his  appropriate  rem- 


CARRIERS,  11.  a,  5. 


363 


rdy  for  any  damages  sustained.  Peabodv 
V.  Oregon  R.  &  Nav.  Co.  21  Or.  121,  26 
Pac.    1053,  12:  823 

364.  A  second  demand  for  fare  need  not 
be  made  by  a  street  car  conductor  before 
ejecting  from  the  car  a  person  who,  in  re- 
sponse to  his  first  demand,  tendered  a 
worthless  ticket,  and  was  informed  that  it 
was  insufficient.  United  Railways  &  Electric 
Co.  V.  Hardesty,  94  Md.  661,  51  Atl.  406. 

57 :  275 

365.  Insulting  or  ungentlemanly  conduct 
is  not  necessary  to  render  the  ejection  of  a 
woman  from  a  train  wrongful,  if,  under  the 
terms  of  her  carriage  contract,  she  has  a 
right  there.  Illinois  C.  R.  Co.  v.  Harper, 
83  Miss.  560,  35  So.   764,  64:  283 

366.  A  conductor  of  a  train  running  be- 
tween two  points  connected  by  different 
routes  is  bound  to  listen  to  the, explanation 
of  a  passenger  holding  a  ticket  \vhich  does 
not  specify  the  route  she  is  to  take,  that 
the  agent  selling  the  ticket  had  directed  her 
to  take  the  route  on  which  the  conductor 
finds  her;  and  he  cannot  eject  her  from  the 
train  because  of  regulations  of  the  carrier, 
imknown  to  her,  requiring  her  to  take  the 
other  route.  Id. 
Refusal  to  pay  fare  of  child. 

See  also  infra,  394,  395. 

For  Editorial  Notes,  see  infra,  IV.  §  19. 

367.  A  parent  who  refuses  to  pay  the 
fare  of  a  child  in  his  custody  who  is  sub- 
ject to  the  payment  of  fare  may  be  ejected 
from  the  train  with  the  child,  though  the 
parent  tenders  payment  of  his  own  fare. 
Braun  v.  Northern  P.  R.  Co.  79  Minn.  404. 
82  N.  W.  675,  49:  319 

368.  A  person  taking  passage  on  a  rail- 
road with  a  child  in  his  charge  of  sufficient 
age  to  require  payment  of  fare  becomes  lia- 
ble for  the  payment  of  the  child's  fare  and 
upon  refusal  to  pay  the  same  both  may  be 
ejected  from  the  train  at  the  next  station. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Orndorff,  55 
Ohio  St.  589,  45  N.  E.  447,  38:  140 
Refusal  to  pay  more  than  regular  tare. 

369.  A  passenger  who  refuses  to  comply 
with  the  regulations  of  a  railroad  company 
requiring  passengers  withovit  tickets  to  pay 
25  cents  extra  may  be  lawfully  ejected  in 
a  proper  manner  .and  at  a  proper  place.  Mc- 
Gowen  v.  Morgan's  L.  &  T.  R.  &  S.  Co.  41 

■La.  Ann.  732,  6  So.  606,  5:  817 

370.  The  ejection  of  a  passenger  who  has 
no  ticket,  because  he  will  not  pay  more 
than  the  regular  fare,  is  wrongful  where  his 
failure  to  get  a  ticket,  for  which  he  other- 
wise would  have  had  time,  was,  without  any 
fault  of  his,  due  to  delay  in  finding  his 
satchel  in  the  baggage  room,  where  he  had 
left  it  without  any  check,  at  a  time  when 
the  ticket  office  was  closed,  as  he  was  di- 
rected to  do  by  the  baggage  master,  who 
refused  to  give  him  a  check  until  he  had 
procured  his  ticket.  Coffee  v.  Louisville  & 
N.  R.  Co.  76  Miss.  569,  25  So.  157, 

45:  112 

371.  A  passenger  on  a  street  car  who  re- 
ceives from  the  driver  a  package  of  nickels 
marked  "50  cents"  but  actually  containinc 


but  45  cents,  in  exchange  for  a  50-cent 
piece,  cannot  be  lawfully  ejected  for  refusal 
to  put  5  cents  in  the  box,  although  he  is  as- 
sured by  the  driver  that  if  he  will  put  the 
fare  in  the  box  the  mistake  will  be  cor- 
rected at  the  office  of  the  company.  Curtis  v. 
Louisville  City  R.  Co.  94  Ky.  573,  23  S.  W. 
363,  21 :  649 

Refusal  to  pay  full  fare  alter  less  accepted. 

372.  A  railway  conductor  who  collects 
from  a  passenger  boarding  the  train  with- 
out a  ticket  a  less  sum  than  the  full  train 
fare  to  his  destination  may,  within  a  rea- 
sonable time,  on  discovering  the  mistake, 
require  him  to  pay  the  deficiency,  and  eject 
him  at  the  next  station  on  his  refusal  to 
pay  it,  upon  first  refunding  the  sum  paid, 
less  the  fare  for  the  distance  actually  trav- 
eled. Wardwell  v.  Chicago.  M.  &  St.  P.  R. 
Co.  46  Minn.  514,  49  N.  W.  206,  13:  596 
Refusal  to  pay  for  distance  already  ridden. 
For  Editorial  Notes,  see  infra,  IV.  §   19. 

373.  Refusal  to  pay  fare  for  the  distance 
already  ridden  without  a  valid  ticket  will 
justify  the  ejection  of  a  passenger  who,  on 
notice  that  he  must  pay  such  fare  or  be  put 
off  at  the  next  station,  has  procured  at  that 
station  a  ticket  for  the  remainder  of  his 
trip.  Manning  v.  Louisville  &  N.  R.  Co.  95 
Ala.  392,  11  So.  8,  16:55 
Miutake  in  transfer  slip. 

374.  No  recovery  can  be  had  for  injuries 
received  by  a  passenger  in  resisting  forci- 
ble ejection  from  a  street  car  for  refusal  to 
pay  fare  or  leave  the  car,  although  he  ten- 
ders a  transfer  from  another  line,  which 
should  be  valid,  but  is  not,  because  of  the 
mistake  of  the  conductor  from  which  it 
was  received,  if  no  more  force  is  used  than 
is  reasonably  necessary  to  effect  the  expul- 
sion. Kiley  v.  Chicago  City  R.  Co.  189  111. 
384,  59  N.  E.  794,  52:  626 

375.  A  street  car  passenger  who  is  ejected 
from  a  car  to  which  he  is  transferred  be-' 
cause  of  a  mistake  not  noticed  by  him  in 
the  transfer  slip  given  him  by  the  conductor 
to  whom  he  paid  his  fare  may  recover  sub- 
stantial damages  from  the  company,  since  it 
is  responsible  for  the  mistakes  of  its  agents, 
and  cannot  require  passengers  to  make  tech- 
nical examination  of  transfer  slips.  Lawshe 
V.  Tacoma  R.  &  P.  Co.  29  Wash.  681,  70  Pac. 
118,  59:  350 
Failure  to  get  transfer. 

376.  A  passenger  who  fails  to  ask  or  ob- 
tain any  written  transfer  or  other  evidence 
of  his  right  to  ride  in  a  car  which  he  enters 
after  leaving  one  in  which  he  has  paid  fare 
may  be  lawfully  ejected  if  he  refuses  to  pay 
fare  therein;  and  the  conductor  is  not 
obliged  to  take  the  passenger's  statement 
as  evidence  of  his  right  to  ride.  Mahoney 
V.  Detroit  Street  R.  Co.  93  Mich.  612,  53 
N.  W.  793,  18:335 
Defective  ticket. 

377.  The  refusal  of  the  agent  at  the  inter- 
mediate terminal  to  indorse  a  return  trij) 
ticket,  which  indorsement,  according  to  the 
terms  of  the  ticket,  is  necessary  to  validate 
it,  "because  his  instructions  were  different." 
is  not  a  final  breach  of  its  contract  by  the 


364 


CARRIERS.  II.    a,  5. 


carrier,  so  as  to  preclude  recovery  by  the 
passenger  of  any  damages  that  may  subse- 
(juently  accrue ;  therefore,  in  case  he  is  eject- 
ed from  a  train  when  attempting  to  use 
the  ticket,  under  circumstances  of  humilia- 
tion, he  may  recover  damages  therefor.  Tex- 
as &  P.  R.  Co.  V.  Payne  (Tex.)  87  S.  W. 
330,  70:  946 

378.  The  failure  of  a  carrier's  agent  to 
stamp  the  return  coupon  of  a  round-trip 
ticket  in  order  to  make  it  valid  for  use  un- 
der the  carrier's  regulations  will  not  justi- 
fy the  expulsion  from  a  train  of  a  passen- 
ger who  had  presented  himself  to  the  a^ent, 
and  signed  the  ticket  in  the  agent's  pres- 
ence, and  delivered  it  jto  and  received  it  from 
the  agent  under  such  circumstances  as  to 
justify  the  belief  that  the  ticket  had  been 
properly  stamped.  Northern  P.  R.  Co.  v. 
Pauson,  70  Fed.  585,  44  U.  S.  App.  178, 
17  C.  C.  A.  287,  30:  730 

379.  The  expulsion  of  a  passenger  from 
a  train  for  failure  to  have  his  round-trip 
ticket  signed  and  stamped  as  required  by  a 
condition  thereon  providing  that  it  shall  not 
be  good  for  return  passage,  unless  the  orig- 
inal purchaser  shall  procure  it  to  be 
signed  and  stamped  by  an  agent  of 
the  compiuiy  at  the  point  of  desti- 
nation, and  shall  use  it  on  the  date  it  is 
so  signed,  renders  the  company  liable  in 
damages,  where  the  passenger  explains  to 
the  conductor  that  he  was  unable  to  comply 

With  the  condition  because  of  the  failure 
of  the  company  to  have  present  at  the  sta- 
tion before  the  arrival  of  the  train  he 
wished  to  take  an  agent  authorized  to  so 
sign  and  stamp  his  ticket.  Southern  R.  Co. 
V.  Wood,   114  Ga.   140,  39  S.  E.  894, 

55:  536 

380.  There  was  no  waiver  of  the  wrongful 
expulsion  of  a  i)assenger  from  a  train  be- 
cause of  his  failure,  through  the  fault  of 
the  carrier,  to  have  his  ticket  signed  and 
stamped  as  recjuired  by  a  condition  thereon, 
by  the  fact  that  after  being  expelled  he 
returned  to  the  station  where  he  had  board- 
ed the  train,  had  his  ticket  properly  val- 
idated, and  used  it  for  passage  on  a  later 
train.  Id. 

381.  A  passenger  in  getting  on  a  train 
with  a  ticket  which  he  knows  does  not  on 
its  face  entitle  him  to  passage  is  guilty  (5f 
negligence  as  a  matter  of  law.  which  will 
bar  a  recovery  for  his  expulsion,  although 
after  discovering  the  defect  he  sought  to  ex- 
change it  at  the  ticket  oHice.  and  was  told  by 
the  person  in  cnarge  that  the  agent  who  had 
authority  to  chantje  it  was  out,  but  that  he 
thought  it  was  all  right,  and  that  conduct- 
ors wo\ild  understand  the  mistake.  Poulin 
v.  Canadian  P.  R.  Co.  6  U.  S.  App.  298,  3 
C.  C.  A.  23,  52  Fed.  197,  17:  800 
Expired  ticket. 

382.  One  who  gets  upon  a  train  with  a 
ticket  which  he  knows  does  not  upon  its 
face  entitle  him  to  passage,  becaus?  the 
time  for  wliich  it  purports  to  be  valid  has 
expired,  although  he  thinks  the  limitation 
unreasonable,  cannot  recover  damages  for 
being  ejected,  if  he  refuses  to  pay  fare.   Tre- 


zona  V.  Chicago  G.  W.  R.  Co.  107  Iowa,  22. 
77  N.  W.  486,  43:136 

Misdated  ticket. 

383.  Failure  to  pay  for  a  ticket  when  pur- 
chased because  of  haste  to  catch  a  train,  and 
the  acceptance  of  a  promise  to  pay  on  re- 
turn, will  not  defeat  the  right  of  the  pas- 
senger to  recover  damages  for  ejection  be- 
cause the  ticket  bears  a  prior  date.  Ells- 
worth V.  Chicago,  B.  &  Q.  R.  Co.  95  Iowa,  98. 
63  X.  W.  584,  29:  173 
Ticket  for  station  at  which  train  does  not 

stop. 

384.  One  who  purchases  a  ticket  for  pas- 
sage on  a  particular  train,  on  the  assurance 
of  the  ticket  agent  that  the  train  will  stop 
at  the  station  at  which  the  purchaser  de- 
sires to  alight,  may  recover  damages  from 
the  company  if  expelled  from  the  train  by 
the  conductor  solely  on  the  ground  that  the 
train  does  not  stop  at  the  station  in  ques- 
tion, unless  the  purchaser, knows  or  has  rea- 
son to  believe  that  the  information  given  him 
by  the  ticket  agent  is  incorrect,  or  that 
there  is  a  rule  or  regulation  of  the  com- 
pany making  the  agent  incompetent  to  give 
the  information,  or  prohibiting  the  conduct- 
or from  stopping  the  train  at  that  station. 
Atkinson  v.  Southern  R.  Co.  114  Ga.  146, 
39   S.   E.    888,  55:  223 

385.  One  purchasing  a  round-trip  railroad 
ticket  good  only  on  the  day  of  purchase 
may  recover  damages  in  case  he  is  ejected 
from  the  only  train  passing  his  station  on 
the  return  trip  on  that  day,  for  the  reason 
that  the  ticket  is  not  good  on  that  train 
because  the  train  is  not  scheduled  to  stop 
at  that  station.  Illinois  C.  R.  Co.  v.  Harris, 
81  Miss.  208,  32  So.  309,  59:  742 
Refusal  to  pay  second  fare;  ticket  wrong- 
fully taken  up. 

386.  Xoupossession  of  a  ticket  does  not  of 
itself  authorize  the  ejection  from  a  train 
of  a  passenger  who,  having  a  contract  for 
stopover  privileges,  exercises  them  after  his 
ticket  has  been  taken  up  against  his  protest, 
and  attempts  to  complete  his  journey  with- 
out procuring  another  ticket.  Scofield  v. 
Pennsylvania  Co.  50  C.  C.  A.  553,  112  Fed. 
855,  56:  224 

387.  --A.  railroad  company  cannot  absolve 
itself  from  its  duty  to  carry  a  passenger  to 
his  destination  by  taking  up  his  ticket,  so 
as  to  require  him  to  sue  for  the  breach  of 
the  contract  thereby  consummated,  and  pre- 
vent his  suing  for  the  tort  in  case  he  is  sub- 
sequently ejected  from  the  train.  Id. 

388.  The  wrongful  expulsion  by  a  conduc- 
tor of  a  passenger  who  had  no  ticket  be- 
cause it  had  been  taken  up  by  .another  con- 
ductor renders  the  carrier  liable.  Sloane  v. 
Southern  (\il.  R.  Co.  Ill  Cal.  668,  44  Pac. 
320.  32:  193 

3S9.  The  ejection  for  refusal  to  pay  a  sec- 
ond far;',  of  a  passenger  who,  after  paying 
fare  within  a  station,  has  boarded  a  car 
that  has  left  the  station  and  is  standing  a 
few  feet  outside  of  it.  and  who  would  other- 
wise have  to  wait  twenty  minutes  for  an- 
other car,  is  an  unreasonable  and  arbitrary 
enforcement   of  a   rule  of  the  company  re- 


(:;arrieiis.  ii.  a,  5. 


365 


quiring  passengers  to  board  the  cars  witliin 
the  station  or  pay  another  fare  if  they 
board  them  beyond  the  station  limits,  and 
will  subject  the  company  to  liability  for  in- 
juries sustained  in  consequence  of  the  ejec- 
tion, where  the  conductor  knows  that  he 
has  already  paid  fare  at  the  station.  Nash- 
ville Street  Ry.  Co.  v.  Griffin,  104  Tenn.  81, 
57  S.  W.  153,  49:451 

390.  The  rule  that  a  conductor  cannot  be 
required  to  rely  on  the  word  of  one  who  en- 
ters a  train  without  a  ticket,  as  to  a  con- 
tract entitling  him  to  carriage,  but  that 
the  passenger  should  provide  himself  with 
another  ticket  and  sue  for  breach  of  con- 
tract if  he  was  wrongfully  deprived  of  the 
old  one,  does  not  apply  where  the  conductor, 
before  ejecting  the  passenger,  applies  to 
headquarters  for  instructions.  Scofield  v. 
Pennsylvania  Co.  50  C.  C.  A.  553,  112  Fed. 
855,  "  '••56:224 
Effect  of  subsequent  willingness  or  offer  to 

pay. 
For  Editorial  Notes,  see  infra,  IV.  §  19. 

391.  A  mere  willingness  of  a  passenger  to 
pay  fare,  without  any  tender  or  offer  to 
pay,  when  the  conductor  is  about  to  put 
him  off  after  passing  his  destination  in 
spite  of  his  request  to  be  taken  to  the  next 
station,  and  when  the  conductor  charges 
him  with  trying  to  "bum"  his  way,  is  not 
sufficient  to  place  the  conductor  in  the 
wrong  in  ejecting  him.  Texas  6i,  P.  R.  Co. 
v.  James,  82  Tex.  306,  18  S.  W.  589, 

15:347 

392.  A  passenger  cannot  avoid  expulsion 
by  tendering  fare  while  the  train  is  being 
stopped,  or  after  the  stoppage,  with  a  view 
to  his  expulsion,  if  he  has  made  the  stop 
necessary  by  refusal  of  a  rightful  demand 
for  fare.  Georgia  Southern  &  F.  R.  Co.  v. 
Asmore,  88  Ga.  529,  11  So.  8,  16:  53 
Duty  to  return  ticket  or  unused  portion  of 

fare. 

393.  The  retention  by  a  railroad  conduc- 
tor of  a  worthless  ticket  after  he  has  stated 
that  it  is  worthless,  although  wrongful,  does 
not  absolve  the  holder  from  the  duty  of 
producing  a  valid  one,  or  paying  fare  to 
prevent  ejection  from  the  train.  Elliott  v. 
Southern  P.  Co.  145  Cal.  441,  79  Pac.  420. 

68:  393 

394.  In  ejecting  a  person  who  has  paid 
fare  or  presented  a  ticket,  taken  up,  for 
failure  to  paj^  the  fare  of  a  child  in  his 
I'harge,  the  conductor  must  first  return  or 
offer  to  return  the  unused  value  of  such 
ticket  or  fare  over  and  above  the  fares  of 
both  for  the  distance  already  traveled;  but 
if  the  ticket  is  such  that  a  stop  over  may  be 
had  thereon  the  conductor  may  tender  a 
stop-over  check  instead  of  money.  Lake 
Shore  &  iN.  S.  R.  Co.  v.  Omdorff,  55  Ohio 
St.  589.  45  N.  E.  447,  38:  140 

395.  The  fare  paid  by  a  parent  who  re- 
fuses to  pay  the  fare  rightfully  demanded 
for  a  child  in  his  custody  must  be  returned 
or  tendered  to  the  parent,  or  such  part 
thereof  as  may  be  unearned,  before  the  child 
can  lawfully  be  ejected  from  the  train,  since 
the    forcible    ejection    and    removal    of   the 


child  for  nonpayment  of  fare  is  in  effect 
the  ejection  and  removal  of  the  parent. 
Braun  v.  Northern  P.  R.  Co.  79  Minn.  404, 
82  N.  W.  675,  49:  319 

c.  At  What  Place. 

See  also  supra,  77;  infra,  425,  426. 

For  Editorial  Notes,  see  infra,  IV.   §   19. 

395a.  A  railroad  company  w^hich  finds  on 
one  of  its  trains  a  trespasser  who  has  no 
right  to  be  there  and  whom  it  is  entitled 
to  remove  is  not  bound  to  carry  him  to  a 
regular  station  before  ejecting  him.  Burch 
V.  Baltimore  &  P.  R.  Co.  3  App.  D.  C.  346, 

26:129 

396.  The  expulsion  of  a  passenger  for  non- 
payment of  fare,  at  any  place  other  than  a 
usual  stopping-place  or  near  a  dwelling  house 
is  forbidden  by  Wis.  Rev.  Stat.  §  1818,  pro- 
viding that  if  any  passenger  shall  refuse  to 
pay  his  fare  the  conductor  may  put  him 
and  his  baggage  off  the  cars,  on  stoppin<( 
the  cars  and  using  no  unnecessary  force,  at 
any  usual  stopping  place  or  near  any  dwell- 
ing house,  as  the  conductor  may  elect. 
Ph«ttiplace  v.  Northern  P.  R.  Co.  84  Wis. 
412,  54  N.  W.  1092,  20:  483 

397.  The  statute  (Fla.  Laws,  chap.  1987, 
§  41)  prohibit*  the  expulsion  of  a  passen- 
ger by  a  railroad  company  for  nonpayment 
of  fare  at  any  point  other  than  a  usual  stop- 
ping place,  or  near  some  dwelling  house. 
When,  however,  a  passenger  wantonly  vio- 
lates any  other  reasonable  rule  of  a  railroad 
company,  the  obligation  to  transport  him 
ceases,  and  the  company  may  expel  him 
from  the  train  at  any  convenient  and  safe 
point  that  may  be  selected  by  the  officer  in 
charge,  no  more  force  being  used  than  may 
be  necessary  for  such  purpose.  This  is  a 
common-law  right,  and  has  not  been  re- 
stricted by  statute  as  in  cases  of  nonpay- 
ment of  fare.  South  Florida  R.  Co.  v. 
Rhoads,  25  Fla.  40,  5  So.  633,  3:  733 
Drunken  passenger. 

Question  for  Jury,  as  to,  see  Tri^l,  298. 
For  Editorial  Notes,  see  infra,  IV.  §  19. 

398.  The  ejection  from  a  train  at  nin;ht,  of 
a  passenger  known  to  be  drunk  and  irre- 
sponsible, at  a  place  from  which  he  can  es- 
cape only  by  following  the  roughly  ballasted 
railroad  track  and  crossing  cattle  guarus  on 
one  side  and  a  bridge  over  a  creek  on  the 
other,  renders  the  railroad  company  liable 
where  he  is  killed  by  another  train  soon 
after.  Louisville  &  N.  R.  Co.  v.  Johnson. 
108  Ala.  62,  19  So.  51.  31:372 

399.  A  conductor  was  not  negligent  in 
ejecting  from  a  train,  a  short  distance  from 
the  station,  within  the  yard  limits,  and  near 
dwelling  houses,  a  man  who,  although  ap- 
parently intoxicated,  was  able  to  walk  and 
carry  on  intelligent  conversation,  although 
he  had  been  informed  at  the  station  that  the 
man  was  not  fit  to  travel;  where  the  man. 
when  asked  for  his  fare,  refused  to  pay  it 
or  tell  his  destination.  Korn  v.  Chesapeake 
&  0.  R.  Co.  62  C.  C.  A.  417,  125  Fed.  8'^". 

63:  872 


866 


CARRIERS,  II.    a,  6. 


6.  Leaving  at  Destination;  Stop  Over. 

Punitive  Damages  for  Failure  to  Stop  at 
Station,  see  Damages,  82,  83. 

Measure  of  Damages  for  Carrymg  Beyond 
Station,  see  Damages,  216,  217. 

Allegation  as  to  Carrying  Beyond  Station, 
see  Pleading,  334. 

Failure  to  Stop  as  Proximate  Cause  of  In- 
jury, see  Proximate  Cause,  69,  71,  76. 

See  also  infra,  425,  483. 

For  Editorial  Notes,  see  infra,  IV.  §§  23,24. 

400.  A  passenger  holding  a  ticket  to  a 
flag  station  at  which  trains  do  not  stop 
unless  signaled  is  not,  in  the  absence  of 
some  special  reason  therefor,  required  to 
notify  the  conductor  of  his  destination  be- 
fore being  called  upon  to  exhibit  his  ticket. 
Chattanooga,  R.  &  C.  R.  Co.  v.  Lyon,  89 
Ga.  16,  15  S.  E.  24,  15:  857 

401.  A  sleeping  car  company  is  liable  for 
the  mistake  of  its  servants  in  awakening 
passengers  in  its  car,  and  causing  them  to 
get  oflF  at  a  water  tank  half  a  mile  from 
the  depot  in  the  dark  and  rain,  where  they 
were  left  by  the  train,  when  the  consequent 
exposure  resulted  in  serious  damage  to  them. 
Pullman  Palace  Car  Co.  v.  Smith,  79  Tex. 
468,  14  S.  W.  993,  13:  215 
Train  not  stopping  at  destination. 

402.  A  passenger  going  upon  a  railroad 
train   has   a  right  to   rely  upon  the  repre- 

.  sentations  of  a  local  ticket  agent,  and 
upon  those  of  the  railroad  company's  agent 
in  charge  thereof,  that  such  train  will 
stop  at  a  certain  point  to  which  he  has  pur- 
chased a  ticket  and  desires  to  ride,  and  the 
company  is  liable  in  damages  if  he  is  com- 
pelled to  leave  the  train  before  arriving  at 
his  destination,  because  by  the  general  rules 
of  the  company,  unknown  to  the  passenger, 
such  train  is  not  schedul^'d  to  stop  at  such 
station.  Kansas  City,  Ft.  S.  &  M.  R;  Co. 
V.  Little.  66  Kan.  378,  71  Pac.  820,       61:  122 

403.  The  fact  that  one  who  asked  a  ticket 
agent  for  a  ticket  on  a  limited  or  fast  train 
was  refused  a  ticket  because  the  train  was 
not  allowed  to  stop  at  her  destination  is 
sufficient  notice  to  her  that  any  agreement 
the  tonductor  might  afterwards  make  to 
put  her  oflF  at  her  destination  would  be  a 
violation  of  the  rules  of  the  company,  so  as 
to  exempt  the  company,  which  provided  an- 
other train  which  made  stops  at  all  sta- 
tions, from  liability,  where  she  paid  fare 
to  the  conductor,  who  agreed  to  let  her  off 
at,  but  carried  her  beyond,  her  destination. 
Alabama  G.  S.  R.  Co.  v.  Carmichael,  90  Ala. 
19,  8  So.  87,  9:  388 
Duty  to  awake. 

Allegations  as  to,  see  Pleading,  385. 

404.  A  passenger  carried  beyond  his  des- 
tination while  asleep  is  not  entitled  to  a 
free  passage  to  the  next  station.  Texas  & 
P.  R.  Co.  V.  James,  82  Tex.  306,  18  S.  W. 
589,  15:  347 

405.  The  obligation  to  awaken  and  notify 
a  passenger  in  time  for  him  to  prepare  safe- 
ly and  fonifortahly  to  leave  tne  train  at 
his  destination  is  directly  involved  in  his 
contract    for   the    use   of   a   sleeping  berth. 


Pullman  Palace  Car  Co.  v.  Smith,  79  Tex. 
468,  14  S.  W.  993,  13:  215 

406.  It  is  the  duty  of  a  railroad  company " 
toward  a  passenger  holding  a  ticket  to  one 
point  and  a  sleeping-car  ticket  to  another 
at  which  she  must  change  cars  in  order  to 
reach  her  destination,  to  awaken  her  in  time 
to  make  the  necessary  preparation  for  the 
change  in  a  suitable  and  decent  manner  up- 
on reaching  the  station,  or,  failing  so  to  do, 
to  hold  the  train  for  a  sufficient  time  to 
enable  her  to  make  such  preparation  as  is 
necessary  to  change  cars  without  trepida- 
tion or  the  exposure  of  her  person  to  the 
gaze  of  spectators,  whether  or  not  such  duty 
is  stipulated  in  the  contract  of  carriage. 
McKeon  v.  Cliicago,  M.  &  St.  P.  R.  Co.  94 
Wis.  477,  69  N.  W.  175,  35:  252 
Stop  over. 

Statutory  Right  of,  as  AfTecting  Commerce, 

see  Commerce,  41. 
See  also  supra,  386;  infra,  676. 
For  Editorial  Notes,  see  infra,  IV.  §  22. 

407.  A  conductor's  refusal  to  honor  a  rail- 
road ticket  on  the  ground  that  It  was  out 
of  date  will  not  prevent  the  carrier's  setting 
up  the  defense  to  an  action  for  breach  of 
the  contract  that  the  passenger  had  without 
right  stopped  at  an  intermediate  point,  and 
attempted  to  continue  his  journey  on  the 
same  ticket.  Louisville  &  N.  R.  Co.  v. 
Klyman,  108  Tenn.  304,  67  S.  W.  472, 

56:  769 

408.  A  regular,  full-rate,  non-coupon  rail- 
road ticket  is,  in  the  absence  of  an  agree- 
ment to  the  contrary,  good  for  a  continu- 
ous passage  to  destination  only;  and  if  the 
journey  necessitates  a  change  of  trains  it 
must  be  continued  on  the  next  available 
train,  or  the  .carrier  may  refuse  to  honor 
the   ticket.      . .  Id. 

409.  A  ticket  which  is  good  for  a  contin- 
uous passage  only  does  not  entitle  a  pas- 
senger who  voluntarily  takes  passage  upon 
a  train  which  he  must  be  held  to  have 
known  would  not  convey  him  to  his  destina- 
tion, and  who  leaves  that  train  at  an  inter- 
mediate point,  to  be  carried  the  remainder 
of  the  journey  on  the  train  which  he  ought 
to  have  taken  in  the  first  place.  Gulf,  C. 
&  S.  F.  R.  Co.  V.  Henry,  84  Tex.  678,  19 
S.  W.   870,  16:  318 

410.  A  passenger  contracting  for  a  stop- 
over privilege  is  not  bound  to  take  notice 
of  a  rule  of  the  carrier,  of  which  he  is  ig- 
norant, which  forbids  the  granting  of  such 
privileges.  Scofield  v.  Pennsylvania  Co.  50 
C.  C.  A.  553,  112  Fed.  855,  56:224 

411.  One  having  a  contract  for  stop-over 
privileges,  which  is  assented  to  by  the  first 
conductor  to  whom  his  ticket  is  presented, 
is  not  guilty  of  negligence,  as  matter  of 
law,  in  attempting  to  continue  his  journey 
without  a  ticket,  when  he  has  exercised  his 
privilege  after  the  ticket  has  been  taken  up 
by  another  conductor  to  whom  he  stated 
the  contract,  since  he  may  be  justified  in  as- 
suming that  the  facts  will  be  reported  to 
the  company  and  his  right  recognized.       Id. 

412.  The  right  to  ride  to  "destination  or 
any  intermediate  station,  and  from  any  in- 


CARHIEKS,  II.  a,  7. 


367 


termediate  station  to  the  depot  of  destina- 
tion," declared  in  Cal.  Civ.  Code,  §  490,  to 
be  given  by  a  railroad  ticket,  cannot  be  con- 
strued to  give  merely  the  right  to  begin  a 
journey  at  an  intermediate  station,  but  in- 
cludes the  right  of  stopover.  Robinson  v. 
Southern  P.  Co.  105  Cal.  526,  38  Pac.  94. 
722,  28:  773 

413.  A  railroad  company  cannot  deprive  a 
passenger  who  pays  the  regular  rates  for  a 
ticket  to  a  certain  destination,  entitling  him 
to  go  by  a  certain  route,  of  his  right  given 
by  statute  to  stop  over  at  an  intermediate 
point  on  such  route  by  giving  him  a  ticket 
purporting  to  entitle  him  to  transportation 
to  either  the  point  of  destination  or  the  in- 
termediate point.  Id. 

414.  A  passenger  who  leaves  a  train  de- 
layed by  a  wreck  nearly  all  night,  and  waits 
at  a  hotel  for  another  train  because  he  is 
not  well  enough  to  remain  on  the^car,  is  en- 
titled to  pass  the  next  day  on  the  check 
given  him  as  a  substitute  for  his  ticket 
by  the  first  conductor,  or  at  least  upon  pay- 
ment of  the  regular  fare;  and,  if  put  off  for 
refusal  to  pay  the  extra  charge  required  of 
those  who  fail  to  procure  tickets,  he  may 
recover  damages.  Louisville  &  N.  W.  R.  Co. 
V.  Wilsey,  11  Kv.  L.  Rep.  419  (Not  to  be 
Rep.)    12  S.  W,  275,  5:  855 

415.  If  there  are  two  or  more  regular 
stopping  places  for  trains  in  a  city,  where 
passengers  are  allowed  to  enter  and  leave 
trains,  either  of  them  may  be  chosen  as  the 
place  to  stop  off,  under  Cal.  Civ.  Code,  § 
490,  although  no  station-house  is  there  lo- 
cated. Robin.son  v.  Southern  P.  Co.  105  Cal. 
526.  38  Pac.   94,  722,  28:  773 

416.  The  junction  of  a  ferry  and  a  rail- 
road is  an  intermediate  station  within  Cal. 
Civ.  Code,  §  490,  giving  the  right  of  stop 
over  where  a  ticket  is  sold  foe  transporta- 
tion over  both  ferry  and  railroad.  Id. 

7.  Disabled  or  Incompetent  Passengers. 

a.  Duty  or  Negligence  of  Carrier. 

(1)   In  General. 

Termination   of  Carrier's  Liability,   see   su- 
pra. II.  b.  4,  b. 
Question  for  Jury  as  to,  see  Trial,  301. 
See  also  supra,  161,  207;  infra,  467,  476. 
For  Editorial  Notes,  see  infra,  IV.  §  16, 

417.  A  railroad  company  which  volunta- 
rily accepts  a  passenger,  without  an  at- 
tendant, a  person  whose  inability  to  care  for 
himself  is  apparent  or  made  known  at  the 
time  to  its  servants,  is  negligent  if  it  fails 
to  render  such  passenger  the  necessary  care 
and  assistance.  Croom  v.  Chicago,  M.  &  St. 
P.  R.  Co.  52  Minn.  296,  53  N.  W.  1128, 

18:  602 

418.  A  railroad  company  is  chargeable 
with  the  knowledge  of  its  conductor  and 
baggageman  as  to  the  helpless  condition  of 
a  passenger  riding  in  the  baggage  car. 
Wheeler  v.  Grand  Trunk  R.  Co.  70  N.  H. 
607,  50  Atl.  103,  54:  955 


Sick  passengers. 

Proximate  Cnnse  of   Injury   to,   see   Proxi- 
mate Cause,  71. 
See  also  supra,  357-360;   infra,  409,  483. 
For  Editorial  Notes,  see  infra,  TV.  §  10. 

419.  Knowledge  communicated  to  the  con- 
ductor of  a  train,  that  a  passenger  is  feeble 
and  will  need  assistance  in  getting  oif,  is 
notice  to  the  carrier;  and  it  is  not  necessary 
to  notify  every  other  conductor  and  train- 
hand  that  may  be  in  charge  of  the  train. 
Foss  V.  Boston  &  M.  R.  Co.  66  N.  H.  256,  21 
Atl.  222,  11:  367 

420-422.  A  passenger  who  becomes  sick  on 
a  railroad  train  is  entitled  to  such  care  from 
the  carrier  as  is  fairly  practicable  for  it  to 
give  with  the  facilities  at  hand,  without 
thereby  unduly  delaying  the  train  or  unrea- 
sonably interfering  with  the  safety  and 
comfort  of  other  passengers.  Lake  Shore  & 
M.  S.  R.  Co.  V.  Salzman,  52  Ohio  St.  558, 
40  N.  E.  891,  31:  261 

423.  A  passenger  who,  through  sudden  ill- 
ness, becomes  less  able  to  look  after  his  own 
safety,  and  makes  that  fact  known  to  the 
proper  agent  of  the  carrier,  is  entitled  to  a 
greater  degree  of  care  than  is  demanded  in 
ordinary  circi^mstancesu  McCann  v.  New- 
ark &  S.  0.  R.  Co.  (N.  J.  Err.  a,  App.)  58  N. 
J.  L.  642,  34  Atl.  1052,  33:  127 

424.  A  conductor's  failure  to  stop  a  street 
car  when  twice  requested  by  a  girl  who  had 
become  suddenly  ill  and  who  asked  to  get 
off,  and  his  failure  to  afford  her  such  reason- 
able attention  as  would  save  her  from  harm 
because  of  her  detention  in  the  moving  ve- 
hicle, constitute  negligence.  Id. 

425.  A  railroad  company  which  carries  a 
sick  passenger  past  his  destination  while  un- 
conscious, although  the  conductor  and  sta- 
tion agent  have  agreed  to  give  him  care  on 
the  way  and  have  him  carried  from  the  train 
at  his  destination,  and  puts  him  off  in  fact 
at  a  small  way  station,  where  he  is  left 
nearly  forty  hours,  without  care  and  atten- 
tion, and  then  brought  back  to  his  destina- 
tion is  liable  for  the  injuries  which  result 
to  him  therefrom.  Weightman  v.  Louisville, 
N.  0.  &  T.  R.  Co.  70  Miss.  563,  12  So.  586, 

19:  671 

426.  It  is  the  duty  of  a  carrier,  on  remov- 
ing a  passenger  with  a  contagious  disease 
from  a  train,  to  put  him  off  at  some  place 
where  he  can  find  accommodations  and  med- 
ical attendance,  or  where  there  is  reasonable 
ground  to  believe  that  he  can  do  so.  Pad- 
dock V.  Atchison,  T.  &  S.  F.  R.  Co.  37  Fed. 
841,  4:  231 

427.  A  carrier  is  not  liable  for  the  death 
of  a  passenger  who  was  sick,  but  supposed 
to  be  under  the  influence  of  liquor,  and  who 
was  helped  from  the  car  at  the  terminus  of 
the  route,  and  led  by  the  conductor  to  the 
front  of  the  station,  at  or  near  the  public 
street  where  the  way  was  open  in  the  di- 
rection that  the  passenger  wished  to  go,  but 
who,  after  the  conductor  had  started  on  his 
outward  trip,  turned  and  went  towards  the 
back  of  the  station,  and  subsequently  slipped 
down  between  the  wheels  of  a  moving  car. 


368 


CARIUERS,  II.  a.  7. 


Bageard  v.  CJonsolidated  Traction  Co.  (N.  J. 
Err.  &  App.)   C4  N.  J.  L.  316.  45  Atl.  620, 

49:  424 
Injured  passengers. 
Proximate  Cause  of  Injury  to,  see  Proximate 

Cause,  66,  74. 
Question  for  Jury  as  to,  see  Trial,  298-300. 
See  also  supra,  147,   151-153,  346-350,  353- 

356,  427. 

428.  A  railroad  company  is  under  a  duty 
to  a  passenger  who  is  thrown  on  its  tracks 
by  the  fault  of  its  servant,  producing  men- 
tal incapacity,  to  take  steps  to  prevent  in- 
jury to  him  from  the  danger  it  knows  he 
is  likelv  to  incur  from  its  trains.  On- 
cinnati.'l.  St.  L.  &  C.  R.  Co.  v.  Cooper,  120 
Ind.  469,  22  N.  E.  340,  6:  241 

429.  Failure  to  stop  a  train  and  remove 
from  the  track  one  who  has  steppxed  or  fall- 
en from  the  train  while  it  is  going  at  high 
speed,  and  is  helpless  upon  the  track,  where 
this  can  be  done  without  danger  or  any  con- 
siderable inconvenience,  or  to  notify  those 
in  eharge  of  another  train  of  his  exposed 
condition,  which  can  be  done  by  telegram  be- 
fore the  other  ti'ain  has  left  the  nearest  sta- 
tion,— will  render  the  railroad  company  lia- 
ble for  the  death  of  such  person,  where  he  is 
killed  by  the  following  train,  although  those 
in  charge  of  it  are  not  guilty  of  negligence. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Kassen,  49.  Ohio 
St.  230,  31  N.  E.  282,  16:  674 
Intoxicated  passengers. 

430.  ihat  incapacity  of  a  passenger  is 
caus?(l  bv  his  voluntary  intoxication  will  not 
absolve  the  carrier,  upon  discovering  it,  from 
using  clue  care  to  prevent  his  l>eing  injured 
because  he  has  placed  himself  in  a  danger- 
ous position  without  abilitv  to  care  for  him- 
self. Wheeler  v.  Grand  Ti-unk  R.  Co.  70  N. 
H.  607,  50  Atl.   103.  54:  955 

431.  A  railroad  company  is  liable  for  in- 
juries to  a  drunken  passenger  caused  by  his 
fall  from  the  door  of  a  baggage  car,  near 
which  he  was  porniittefl  to  dance  and  stag- 
ger, if,  by  exercising  the  care  the  situation 
required,  it  could  have  prevented  the  injury, 
and  the  passenger  could  not  avoid  it,  al- 
though his  inability  resulted  from  his  vol- 
untary intoxication.  Id. 

432.  The  duty  of  a  carrier  to  protect  an 
intoxicitc'l  nisseneer  from  falling  from  an 
exposed  po.sition  on  the  cars  is  not  changed 
by  the  fact  that  the  intoxication  is  in  viola- 
tion of  a  statute.  Id. 

433.  The  dutv  of  a  railroad  company  may 
\>e  found  by  the  jury  to  include  the  doing 
of  something  to  prevent  injury  to  a  drunken 
passenger  who  is  in  a  dan'jerous  position, 
the  danger  of  which  it  knows  he  is  ignorant 
of  and  powerless  to  avoid.  Id. 

434.  A  railroad  company  cannot  be  held 
free  from  fault  if  its  employees  in  charge  of 
a  train  knowin'jfly  jicrmit  a  person  who  is 
beasth'  drunk  to  go  out  alone  upon  the  plat- 
form of  a  niovinij  car.  Fox  \.  Michigan 
C.  R.  Co.  138  Mich.  433.  101  N.  W.  624. 

68:  336 

435.  The  intoxication  of  a  passenger 
standing  on  the  running  board  of  a  street 
car  will  not  absolve  the  company  from  ex- 
ercising care  toward  him,  or  prevent  his  re- 


covering damages  in  case  he  is  injured  by  its 
negligence.  Kingston  v.  Fort  Wayne  &  E.  R. 
Co.  112  Mich.  40,  70  N.  W.  315,  40:  131 

436.  The  failure  of  a  conductor  to  compel 
a  young  man  twenty  years  of  age  who  was 
somewhat  under  the  influence  of  liquor  to 
enter  a  car  after  he  had  declined  to  do  so 
and  persisted  in  riding  on  the  platform  will 
not  render  the  carrier  liable  for  his  in- 
juries when  thrown  from  the  car,  if  the  con- 
ductor did  not  think  he  w^s  sufficiently 
drunk  to  be  unable  to  care  for  himself,  al- 
though the  young  man's  father  asked  the* 
conductor  to  get  him  to  come  in.  Fisher  v. 
West  Virginia  &  P.  R.  Co.  42  W.  Va.  183, 
24   S.    E.   570,  33:  69 

437.  The  carrier  is  not  liable  for  injury  to 
a  passenger  who  had  been  drinking,  and 
who,  after  refusing  to  go  inside  the  car  on 
the  conductor's  request,  goes  down  without 
his  knowledge  on  the  steps  of  the  car  and 
falls  overboard,  where  the  conductor  does 
not  know  that  he  is  so  much  under  the  in- 
fluence of  liquor  as  to  be  incapable  of  tak- 
ing care  of  himself.  Fisher  v.  West  Vir- 
ginia &  P.  R.  Co.  39  W.  Va.  366,  19  S.  E. 
578,  23:  758 

438.  The  conductor  of  a  train,  knowing 
that  a  passenger  standing  on  the  platform 
of  a  car  is  intoxicated,  should  call  his  atten- 
tion to  the  rules  of  the  company  forbidding 
such  exposure,  and  invite  him  to  go  inside 
of  the  car.  Id. 

439.  A  person  who,  from  the  voluntary 
use  of  intoxicants,  is  incapable  of  protect- 
ing himself,  cannot,  by  entering  a  train 
from  which  he  is  forbidden,  and  without  the 
knowledge  or  consent  of  the  conductor,  im- 
pose on  the  railway  company  any  duty  be- 
yond ordinary  care  to  protect  him  from 
injury  while  ^pon  the  train  and  to  leave 
him  in  a  reasonably  safe  condition.  Mis- 
souri P.  R.  Co.  v.  Evans,  71  Tex.  361,  9  S. 
W.  325,  1 :  476 

440.  The  drunken  condition  of  a  passen- 
ger will  not  excu.se  a  carrier  for  negligently 
leaving  him  exposed  on  a  railroad  track, 
wliere  he  had  fallen  from  a  train  through 
the  fault  of  the  carrier,  and  was  in  conse- 
(juence  dazed  and  his  mental  faculties  im- 
paired. Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v. 
Cooper,  120  Ind.  469,  22  N.  E.  340,        6:  241 

441.  A  railroad  company  which  accepted 
a  drunken  man  as  a  passenger,  negligently 
carried  him  beyond  his  destination,  and  put 
him  off  at  another  station,  from  the  depot 
of  which  he  was  ejected  although  the  night 
was  cold  and  stormy,  is  liable  in  damages 
to  his  widow  for  his  death,  where  he  died 
from  exposure  while  attempting  to  find  shel- 
ter. Haug  v.  Great  Northern  R.  Co.  8  N. 
D.  23,  77  N.  W.  97,  42:  664 

(2)   Duty  to  Receive. 

Person  under  influence  of  cocaine. 

442.  Knowledge  of  a  station  agent  that 
a  person  desiring  to  board  a  train  is  under 
the  influence  of  cocaine  is  not  imputable  to 
the  company,  since  it  is  not  his  duty  to 
pass  upon  the  efl"ect  of  that  condition  upon 


CARRIERS,  II.    a,  8. 


869 


\ 


the  passenger's  fitness  to  travel.  Kom  v. 
Chesapeake  &  0.  R.  Ck).  62  C.  C.  A.  417,  125 
Fed.   897,  63:  872 

443.  That  a  person  is  known  to  be  under 
the  influence  of  cocaine  does  not  require  the 
conductor  of  a  train  to  refuse  to  permit 
him  to  enter  the  train  when  there  is  nothing 
in  his  condition  or  conduct  to  indicate 
that  he  is  not  fit  to  care  for  himself.  Id. 
Insane  persons. 

444.  Common  carriers  cannot  absolutely 
refuse  to  transport  persons  who  are  insane, 
but  may  in  all  cases  insist  that  they  be 
properly  attended,  safely  guarded,  and  se- 
curely restrained.  Owens  v.  Macon  &  B.  R. 
Co.   119  Ca.  230,  46   S.  E.  87,  63:  946 

445.  Where  it  becomes  necessary  to  trans- 
port a  lunatic  who  by  reason  of  his  vio- 
lence may  endanger  the  safety  or  interfere 
with  the  comfort  of  other  travelers,  the 
carrier  is  entitled  to  seasonable*  notice,  in 
order  that  it  may  make  proper  arrange- 
ments for  his  transportation.  Id. 

446.  The  right  of  other  travelers  to  a 
safe  and  comfortable  passage  warrants  a 
carrier  in  refusing  to  receive  one  who  has 
been  adjudged  a  lunatic,  and  who,  though 
in  charge  of  attendants,  is  loudly  cursing 
and  using  obscene  language  at  the  time  of 
boarding  the  car.  Id. 
Blind  person. 

447.  A  common  carrier  cannot  refuse  to 
accept  a  person  as  a  passenger  merely  be- 
cause he  is  blind.  Zachery  v.  Mobile  &  0. 
R.  Co.  74  Miss.  520,  21  So.  246,  36:  546 

448.  The  blindness  of  a  person  does  not 
justify  his  rejection  as  a  passenger  of  a 
railroad  when  unaccompanied  by  some  other 
person,  unless  he  is  otherwise  incompetent 
to  travol  alone.  Zackery  v.  Mobile  &  O.  R. 
Co.  .75  Miss.  746,  23  So.  434,  41 :  385 

449.  A  carrier  is  liable  in  damages  for  re- 
fusal to  accept  as  a  passenger  a  blind  per- 
son who  tenders  fare  and  brings  to  the  car- 
rier's notice  proof  of  capacity  to  travel  with- 
out requiring  more  care  from  the  carrier 
than  the  law  requires  it  to  bestow  upon  all 
passengers  alike.  Illinois  C.  R.  Co.  v.  Smith, 
85   Miss.   349,  37   So.  643,  70:  642 

450.  A  blind  person  is  entitled  to  trans- 
portation upon  a  railroad  upon  tender  of 
fare,  without  an  attendant,  if,  as  matter 
of  fact,  he  is  competent  to  travel  alone 
without  requiring  other  care  than  that 
which  the  law  requires  the  carrier  to  be- 
stow upon  all  its  passengers  alike.  Id. 

451.  A  carrier  cannot  be  held  liable  for 
failure  to  receive  as  a  passenger  an  unat- 
tended blind  person,  in  the  absence  of  any 
notice  to  it  or  knowledge  on  its  part  of 
his  competency  to  travel  unattended.       Id. 

h.  Contributory   Negligence. 

Question  for  Jury  as  to,  see  Trial,  314,  335. 

See  also  supra,  430-441. 

For  Editorial  Notes,  see  infra,  TV.  §  29. 

452.  The  self-inflicted  disability  of  intox- 
ication will  not  excuse  a  passenger  from 
the  exercise  of  such  care  as  is  due  from  a 
.sober  man.  Fisher  v.  West  Vircfinia  &  P. 
R.  Co.  42  W.  Va.  183,  24  S.  E.  570,     33:  69 

L.R.A.  Dig,— 24. 


453.  The  rule  of  contributory  negligence 
does  not  apply  to  an  injury  to  a  drunken 
passenger  by  falling  from  a  train  while 
staggering  and  dancing  between  the  open 
doors  of  the  baggage  car,  where,  with 
knowledge  on  the  part  of  the  carrier  of  his 
inability  to  realize  his  danger  and  to  care 
for  himself,  it  makes  no  effort  to  protect 
him  from  injury.  Wheeler  v.  Grand  Trunk 
R.  Co.  70  N.  H.  607,  50  Atl.  103,      54:  955 

8.  Getting  On  or  Off. 

a.  Duty  or  Negligence  of  Carrier. 

Negligence  in  Permitting  Children   to   Get 
on  While  Moving,  see  Negligence,  133. 
Question  for  Jury  as  to,  see  Trial,  291a. 
See  also  supra,  212,  213,  221-226. 
For  Editorial  Notes,  see  infra,  IV.  §  27. 

454.  The  degree  of  care  required  of  a  car- 
rier in  stopping  at  stations  for  passengers 
to  alight  is  such  as  persons  of  the  great- 
est care  and  prudence  would  use  in  similar 
cases,  Texas  &  P.  R.  Co.  v.  Miller,  79  Tex. 
78,  15  S.  W.  264,  11:  395 

455.  A  railroad  company  stopping  a  pas- 
senger car  at  a  point  where  there  is  no  plat- 
form owes  a  passenger,  not  only  a  reason- 
ably safe  appliance  for  enabling  her  to 
alight,  but  the  safest  that  has  been  known 
and  tested.  Missouri  P.  R.  Co.  v.  Wortham, 
73  Tex.  25,  10  S.  W.  741,  3:  368 

450.  Those  in  charge  of  a  railroad  train 
are  bound  to  warn  passengers  about  to 
alight  from  it  of  danger  of  possible  injury 
in  case  an  altercation  has  taken  place  be- 
tween the  railroad  employees  and  another 
passenger  which  has  resulted  in  an  exhibi- 
tion of,  and  apparent  intention  to  use,  dead- 
ly weapons  after  the  latter  passf^nger  has 
left  the  train.  Pennv  v.  Atlantic  Coast  Line 
R.  Co.  1.33  N.  C.  221,  45  S.  E.  563,     63:  497 

457.  The  negligent  and  terrifying  acts  and 
exclamations  of  a  brakeman  on  a  train  car- 
rying both  freight  and  passengers,  made  in 
a  car  containing  passengers  from  which 
they  may  reasonably  infer  that  a  wreck  of 
the  train  is  imminent,  and  which  caused 
them  to  jump  from  the  train,  render  the  car- 
rier liable  for  injuries  received  in  thus  jump- 
ing, although  the  brakeman  had  no  express 
duty  to  perform  in  or  about  such  car  or  in 
the  direction  of  passengers.  Ephland  v.  Mis- 
souri P.  R.  Co.  137  Mo.  187,  37  S.  W.  820, 

35:  107 
Children  jumping  on  and  off  trains. 
See  also  supra,  167;  infra,  516. 
For  Editorial  Notes,  see  infra,  IV.  §  27. 

458.  A  railroad  company  is  liable  for  in- 
jury to  a  child  of  immature  years  who  gets 
upon  the  running  board  of  an  engine  as  it 
enters  a  plavfirround,  according  to  a  general 
custom  of  "children  playing  there,  well 
known  to  the  railroad  employees,  and  who 
is  injured  while  attempting  to  jump  there- 
from at  a  point  where  children  have  been, 
for  a  long  time  previous,  in  the  habit  of 
alighting,  even  though  the  employees  in 
charge  of  the  train  have  no  actual  knowl- 
edge of  the  child's  presence  upon  the  en- 


370 


CARRIERS,  II.    a,  8. 


gine,  sinciC,  under  the  circumstances,  they 
should  anticipate  the  presence  of  children 
upon  the  train,  and  take  measures  to  pro- 
tect them.  Ashworth  v.  Southern  R.  Co. 
116  Ga.   635,  43  S.   E.  36,  59:  592 

450.  Where  a  number  of  children  ranging 
in  age  from  six  to  fifteen  years  are,  with 
the  knowledge  and  without  the  disapproval 
of  the  employees  of  a  railroad  company  in 
charge  of  its  trains,  permitted  to  board 
and  ride  upon  the  trains  while  they  are 
passing  over  a  side  track  through  a  play- 
ground of  the  children  to  a  point  beyond, 
and  while  they  are  returning  from  such 
point  to  the  main  line  of  the  road,  the  chil- 
dren alighting  from  the  trains  at  the  limits 
of  the  playground,  both  going  and  return- 
ing; and  this  custom  is  a  continuous  one. — 
it  is  the  duty  of  the  employees  of  a  train 
who  are  aware  of  this  custom,  to  anticipate 
that  when  the  train  enters  the  playground 
the  children  will  attempt  to  ride  upon  it  and 
alight  from  it  at  the  point  where  they  have 
been  accustomed  to  do  so;  and  they  are 
under  a  further  duty,  consequent  upon  the 
first,  to  take  proper  measures  to  prevent  in- 
jury to  such  children.  Id. 
Waitin?c  for  passenger  to  reach  seat. 
For  Editorial  Notes,  see  infra,  IV.  §  26. 

460.  A  train  may  be  started  without  wait- 
ing for  a  passenger  to  reach  a  seat  after 
entering  the  vehicle,  unless  there  is  some 
special  reason  to  the  contrary.  Louisville 
&  N.  R.  Co.  V.  Hale,  102  Ky.  600,  44  S.  W. 
213,  42:  293 

461.  A  street  car  company  which  stops 
its  car  for  the  purpose  of  receiving  passen- 
gers is  charged  with  the  highest  degree  of 
care  to  see,  before  starting  the  car,  that  all 
passengers  lawfully  entering  the  car  get  to 
a  place  of  safety  thereon.  Normile  v. 
Wheelinsr  Traction  Co.  57  W.  Va.  132.  49 
S.  E.  1030,  68:  901 

462.  A  railroad  train  may  be  started 
without  waiting  for  a  passenger  to  reach  a 
seat  after  he  has  entered  the  vehicle,  unless 
there  is  some  special  reason  to  the  contrary, 
as  in  the  case  of  a  weak  or  lame  person. 
Yamoll  V.  Kansas  Citv,  Ft.  S.  &  M.  R.  Co. 
113  Mo.  570.  21  S.  W.  1,  18:  599 

463.  A  street  car  company  is  liable  for 
injury  to  a  passenger  caused  by  starting  the 
car  after  he  has  got  on  the  step  or  foot- 
board, before  he  has  a  reasonable  oppor- 
tunity to  reach  a  safe  place.  Steeg  v.  St. 
Paul  Citv  R.  Co.  50  Minn.  149,  52  N.  W. 
393,  *  16:  379 

464.  The  conductor  of  a  street  car  must 
see  that  a  passenger  entering  the  car  is  in  a 
place  of  safety  before  he  gives  the  signal  to 
proceed ;  and  the  passenger  is  entitled  to 
damages  if  he  is  thrown  down  and  injured 
bv  the  premature  starting  of  the  car. 
Akersloot  v.  Second  Ave.  R.  Co.  131  N.  Y. 
599,  30  y.  E.  195.  15:  489 
Announcing  stations. 

Error  in  Instruction  as  to  Awakening  Pas- 
poniror  on  Sleeper,  see  Appeal  and  Error, 
10-23.  1024. 

See  also  infra.  481,  401. 

For  Editorial  Notes,  see  infra,  IV.  §  23. 

465.  While   it    is   the    dutv   of   a   railway 


company  to  duly  announce  to  passengers  the 
approach  of  its  trains  to  regular  stations,  in 
order  that  they  may  be  prepared  to  alight 
promptly  at  their  respective  points  of  desti- 
nation, yet  a  failure  to  comply  with  this 
duty  cannot  count  against  the  company, 
relatively  to  a  passenger  who  is  in  no  way 
misled  thereby.  Southern  R.  Co.  v.  Hobbs, 
118   Ga.   227,  45   S.   E.   23,  63:68 

Assistance  to  passengers. 
Question  for  Jury  as  to,  see  Trial,  296. 
See  also  infra,  490. 
For  Editorial  Notes,  see  infra,  TV.  §  27. 

466.  Alighting  from  the  train  and  assist- 
ing passengers  to  enter  it  are  no  part  of  the 
duty  of  the  employees,  on  a  passenger  train, 
where  access  to  the  cars  is  easy,  a  neglect 
of  which,  resulting  in  injury,  can  be  the 
basis  of  an  action.  Yarnell  v.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.  113  Mo.  570,  21  S.  W.  1, 

18:  599 

467.  A  passenger  has  a  right  to  rely  on 
the  assistance  oflfered  by  the  conductor  and 
brakeman,  where,  in  getting  off  a  train,  she 
is  in  a  flustered  state  of  mind  and  in  fear 
of  being  carried  beyond  her  destination,  so 
that  she  does  not  notice  the  distance  of  the 
ear  step  from  the  ground;  and  if  in  such 
circumstances  they  fail  to  assist  her  from 
the  car  without  injury,  it  is  the  fault  of  the 
carrier.  Foss  v.  Boston  &  M.  R.  Co.  66  N. 
H.  256,  21  Atl.  222,  11:  367 

468.  A  custom  on  the  part  of  railroad 
conductors  to  lend  special  assistance  to 
women  passengers  when  traveling  unattend- 
ed is  not  binding  on  the  carriers,  unless 
the  company's  officials  have  knowledge 
thereof  and  recognized  it  as  entering  into 
the  contracts  of  carriage  made  with  pur- 
chasers of  tickets.  Southern  R.  Co.  v. 
Hobbs,  118  Ga.  227,  45  S.  E.  23,  63:  68 

469.  A  promise  by  a  cpnductor  to  assist 
a  passenger  who,  to  his  knowledge  is  par- 
tially blind,  in  alighting  from  the  train 
when  it  reaches  her  destination,  does  not 
amount  to  an  undertaking  on  the  part  of 
the  conductor  to  enter  the  car  in  which  the 
passenger  is  riding,  assume  charge  of  her 
bundles,  and  escort  her  from  her  seat,  down 
the  aisle,  and  out  upon  the  platform,  un- 
less the  passenger  is  so  helpless  as  to  re- 
quire this  extraordinary  attention,  and  the 
conductor  has  notice  that  such  is  the  case. 

Id. 

470.  A  trainman  attempting  to  assist  a 
woman  to  get  aboard  after  the  train  has 
moved  away  from  the  platform  and  then 
stopped  for  her  where  the  ground  is  so 
low  that  she  cannot  get  on  without  assist- 
ance may  be  found  by  the  jury  to  be  acting 
within  the  scope  of  his  duty  so  as  to  render 
the  carrier  liable  for  his  negligence.  West- 
ern &  A.  R.  Co.  V.  Voils,  98  Ga.  446,  26  S.  E. 
483,  35:  655 

471.  It  is  the  duty  of  a  railroad  company 
which  furnishes  a  box  for  passengers  to 
alight  upon,  at  a  point  where  there  is  no 
platform,  at  least  to  render  such  assistance 
to  passenjrers  as  to  make  the  box  as  safe 
as  a  platform  would  have  been.  Missouri 
P.  R.  Co.  V.  Wortham,  73  Tex.  25,  10  S.  W. 
741,  3:  368 


CARRIERS,  II.    a,  8. 


371 


472.  A  stool  in  the  shape  of  a  box,  about 
11  inches  square  on  the  top  and  somewhat 
larger  at  the  bottom,  which  is  capable  of 
being  overturned  at  least  by  an  incautious 
step,  and  which  is  furnished  by  a  railroad 
company  for  a  passenger  to  alight  upon,  at 
a  place  where  there  is  no  platform,  may  be 
found  by  a  jury  to  be  not  such  a  substitute 
for  a  platform  as  it  is  the  duty  of  the  com- 
pany to  furnish,  without  regard  to  the  time 
it  has  been  used  and  the  number  of  persons 
who  have  passed  over  it  securely,  or  expert 
opinion  as  to  its  safety.  Id. 
Duty  toward  person  assisting  passenger. 
For  Editorial  Notes,  see  infra,  IV.  §  27. 

473.  If  train  employees  offer  to  assist  a 
lady  and  child  to  a  seat  and  to  care  for  their 
hand  baggage,  another  persion  has  no  right 
to  enter  the  car  to  assist  them;  and,  if 
he  does  so,  the  carrier  owes  him  nQ  duty  ex- 
cept to  refrain  from  v/ilful  or  wanton  in- 
jury to  him.  Little  Rock  &  Ft.  S.  R.  Co. 
V.    Lawton,    55  Ark.    428,    18    S.  W.    543, 

15:  434 

474.  One  who  goes  upon  a  train  to  render 
necessary  assistance  to  a  passenger,  in  con- 
formity to  a  practice  approved  or  acquiesced 
in  by  the  carrier,  is  entitled  to  a  reasonable 
time  after  rendering  the  assistance  to  leave 
the  car,  if  the  carrier  has  notice  that  he 
wishes  to  get  off.  Id. 

475.  Failure  of  a  train  to  stop  the  full 
length  of  time  that  is  usually  required  for 
passengers  to  get  on  and  off  at  that  place 
will  give  no  right  of  action  to  a  person  in- 
jured in  getting  off  after  going  on  the  train 
to  assist  a  lady  and  child  to  a  seat,  provided 
he  had  a  reasonable  time  to  get  off.  Id. 

476.  The  fact  that  a  woman  getting  into 
a  car  is  fleshy  and  encumbered  with  a  num- 
ber of  children,  when  she  has  an  escort  with 
her,  is  not  sufficient  notice  to  the  conductor 
of  an  infirmity  which  requires  him  to  wait 
until  she  reaches  a  seat  before  starting  the 
train.  Louisville  &  N.  R.  Ck).  v.  Hale,  102 
Ky.  600,  44  S.  W.  213,  42:  293 

477.  Time  need  not  be  given  for  a  per- 
son who  has  entered  a  railroad  train  merely 
to  assist  passengers  in  getting  on  to  leave 
the  train,  where  no  notice  is  given  of  his 
intent  to  get  off.  Yarn  ell  v.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.  113  Mo.  570,  21  S.  W.  1, 

18:  599 
Allowing  time  to  alight. 
See  also  supra,  474-477. 
For  Editorial  Notes,  see  infra,  TV.  §  26. 

478.  A  carrier  is  liable  for  injuries  to  a 
passenger  in  alighting  from  a  train,  caused 
by  the  starting  of  the  train  with  a  jerk 
without  giving  sufficient  time  to  alight  in 
safety.  Texas  &  P.  R.  Co.  v.  Miller,  79  Tex. 
78,  15  S.  W.  264,  11:395 

479.  Stopping  a  train  drawn  by  a  dummy 
engine,  with  no  regular  stopping  place,  for 
a  reasonable  time  on  request  to  stop,  is  not 
the  full  measure  of  the  conductor's  duty, 
"but  before  starting  he  must  see  that  no 
passenger  is  in  the  act  of  alighting  or  in  a 
position  that  will  be  perilous  if  the  train 
starts.  Highland  Ave.  &  B.  R.  Co.  v.  Burt. 
92  Ala.  291,  9  So.  410,  13:  95 

480.  Starting  a  train   without   notice    or 


warning  is  negligence,  where  it  has  not 
stopped  a  reasonable  length  of  time  for  pas- 
sengers to  get  on  and  off.  Carr  v.  Eel  Riv- 
er &  E.   R.   Co.   98  Cal.  366,    33   Pac.   213, 

21:  354 

481.  A  railroad  company  is  liable  to  a 
passenger  on  a  freight  train  for  violently 
jerking  the  train  after  a  passenger  has 
arisen  in  the  car  to  alight  just  as  it  stops 
at  the  station  platform  after  the  station 
had  been  announced  in  the  usual  manner. 
Chicago  &  A.  R.  Co.  v.  Arnol,  144  111.  261, 
33  N.  E.  204,  19:  313 

482.  A  passenger  on  a  railroad  train,  with 
a  ticket  for  a  station  at  which  it  is  custom- 
ary for  the  train  not  to  stop,  but  to  slow 
its  movement  so  as  to  allow  passengers  to 
alight,  will  be  entitled  to  damages  if,  called 
to  the  platform  by  the  announcement  of  the 
station,  he  is  thrown  from  the  steps  of  the 
car  and  injured,  his  fall  being  caused  by  the 
sudden  increase  of  the  speed  of  the 
train  when  it  should  have  been  slowed  or 
stopped.  Brashear  v.  Houston,  C.  A.  &  N.  R. 
Co.  47  La.  Ann.  735,  17  So.  260,        28:  811 

483.  Relatively  to  a  female  passenger  on 
a  railway  train,  who  is  partially  blind,  and 
who  informs  the  conductor  of  her  infirmity, 
and  requests  him  to  assist  her  in  alighting 
from  the  train  when  it  reaches  her  destina- 
tion, which  he  promises  to  do,  it  is  at  least 
the  duty  of  the  carrier  to  stop  the  train 
at  its  station  a  sufficient  length  of  time  to 
enable  her,  without  undue  haste,  to  leave 
the  train  in  safety;  and  if  the  conductor, 
despite  his  promise,  signals  the  train  ahead 
before  the  passenger  has  had  a  reasonable 
opportunity  to  reach  the  platform  of  the 
car,  and  in  consequence  she  is  carried  beyond 
the  station,  and  then  put  off  at  a  point 
some  distance  therefrom,  the  carrier  is  lia- 
ble to  respond  for  all  damages  directly  at- 
tributable to  the  tortious  conduct  of  its 
conductor.  Southern  R.  Co.  v.  Hobbs,  118 
Ga.   227,  45   S.   E.  23,  63:  68 

484.  A  person  who  has  rightfully  entered 
a  pay  car  on  the  stopping  of  the  train  to 
which  it  is  attached  is  entitled  to  a  rea- 
sonable time  for  the  transaction  of  his 
business  before  the  train  is  started,  and  to 
a  proper  warning  of  the  purpose  to  start 
the  train,  to  enable  him  to  leave  the  car 
in  safetv.  New  York,  P.  &  N.  R.  Co.  v. 
Coulbourn,  69  !Md.  360,  16  Atl.  208,       1 :  541 

485.  A  passenger  cannot  recover  for  in- 
juries received  in  alighting  from  a  train  be- 
cause it  started  too  soon,  if  it  had  stopped 
a  sufficient  length  of  time  to  enable  him 
to  alight  in  safety,  and  he  had  failed  to  use 
reasonable  diligence  to  leave  the  train.  Tex- 
as &  P.  R.  Co.  V.  Miller,  79  Tex.  78,  15  S. 
W.  264,  11:395 
Stopping  at  unusual  place. 

Question  for  Jury  as  to,  see  Trial,  295. 
See  also  infra,  510. 

486.  A  custom  to  take  passengers  on  a 
mixed  freight  and  passenger  train  at  a 
distance  from  the  station  is  not  shown  by 
the  fact  that  they  cometimes  got  on  there, 
where  no  direction,  authority,  or  consent  to 
do  so  is  shown,  except  the  direction  of  a 
baggageman  in  a  single  instance,  and  the 


872 


CARRIERS.  II.    a,  8. 


fact  that  a  flagman  saw  them  board  the 
train,  while  it  appears  that  the  train,  when 
made  up,  always  came  to  the  station.  Jones 
V.  New  York  C.  &  H.  R.  R.  Co.  156  N.  Y. 
187,  50  N.  E.  856,  41 :  490 

487.  The  sudden  jolting  of  a  passenger 
car  on  a  mixed  train  while  the  train  was 
being  made  up  and  a  passenger  was  at- 
tempting to  enter  the  car  at  a  distance 
from  the  station,  without  the  knowledge 
of  any  person  in  control  of  the  train,  al- 
though the  station  baggage-master  knew 
it,  does  not  render  the  railroad  company 
liable  to  the  passenger  for  resulting  inju- 
ries, in  the  absence  of  any  invitation  to  get 
on  th'j  car  at  that  place.  Id. 

483.  If  a  passenger-freight  train  is 
stopped  near  a  station,  and  the  passengers 
rightfully  understand  they  are  to  leave  the 
train,  the  company  is  liable  for  the  injuries 
they  may  sustain  in  so  doing,  to  the  same 
extent  and  upon  the  same  ground  as  if 
suffered  from  the  defectiveness  of  its  own 
premises.  New  York,  C.  &  St.  L.  R.  Co.  v. 
Doane,  115  Ind.  435,  17  N.  E.  913,         1:  157 

489.  A  freight  train  accustomed  to  dis- 
charge passengers  away  from  its  platform, 
or  where  it  is  impracticable  to  reach  it, 
may  require  them  to  leave  at  some  con- 
venient place.  Id. 

490.  Where  a  passenger-freight  train 
stopped  at  an  inconvenient  place,  a  female 
passenger  was  justified  in  supposing  it 
would  stop  at  the  platform,  and,  her  pres- 
ence being  discovered  as  the  train  pass«ed 
the  station,  it  was  negligence  in  the  com- 
pany not  to  return  to  the  station  or  assist 
her  to  alight  from  the  train  when  it  stopped, 
or  to  reach  the  station  in  safety.  Id. 

491.  Calling  the  name  of  a  station,  and 
stopping  the  train  soon  after  to  take  a 
side  track  while  another  train  passes,  will 
not  make  the  carrier  liable  for  injuries  to 
a  passenger  who  attempts  to  get  off  at  that 
place,  where  all  the  surroundings  indicate 
that  it  is  not  the  proper  place  for  alight- 
ing. Smith  V.  Georgia  P.  R.  Co.  88  Ala.  538, 
7  So.  119,  7:  323 
Re-entering    car    which    has    been    ferried 

across  river. 

492.  A  railroad  company  is  not  bound  to 
warn  passengers  who  have  left  its  cars 
while  being  ferried  across  a  river  of  the  dan- 
ger of  attempting  to  re-enter  {hem  after  the 
train  has  begun  to  move  at  a  point  where 
it  is  necessary  suddenly  to  increase  the 
speed  to  give  momentum  to  ascend  the  in- 
cline to  the  land.  Allen  v.  Northern  P.  R. 
Co.  35  Wash.  221,  77  Pac.  204,  66:  804 

493.  The  sudden  increase  of  the  speed  of 
a  train  which  has  been  ferried  across  a  riv- 
er, and  which  has  moved  at  low  speed  some 
distance  from  the  point  where  it  stopped  on 
the  boat,  in  order  to  acquire  momentum  to 
carry  it  up  the  incline  to  the  land,  is  not 
negligence  per  se  with  respect  to  a  passen- 
ger, who,  ha\-ing  left  the  train,  is  attempt- 
ing to  re-enter  it  at  the  point  where  the 
speed  is  increased,  where  the  company  has 
no  actual  notice  of  such  attempt.  Id. 

494.  A  passcntrpr  who  attempts  to  re-en- 
ter a  train   which   he  has   left   while  it   is 


crossing  a  ferry,  and  is  injured  by  being 
thrown  by  a  sudden  starting  forward  of  the 
train  against  an  appliance  necessary  for  the 
operation  of  the  ferry,  which  is  within  26 
inches  of  the  car,  cannot  charge  the  carrier 
with  negligence  with  respect  to  the  location 
of  such  appliance,  where  it  had  no  reason 
to  believe  that  passengers  would  attempt  to 
enter  the  cars  at  that  point,  and  no  notice 
of  his  attempt  to  do  so.  Id. 

•  6.  Contributory  Negligence. 

(1)  In  Getting  On. 

Evidence  as  to,  see  Evidence,  1901. 

Ordinance  Against,  see  Municipal  Corpora- 
tions, 256. 

Question  for  Jury  as  to,  see  Trial,  97,  324, 
325. 

See  also  supra,  279,  287;    infra,  503. 

For  Editorial  Notes,  see  infra,  IV.  §  29. 

495.  Attempting  to  get  up  on  a  slowly 
moving  train  is  not  negligence  per  se. 
Mills  V.  Missouri,  K.  &  T.  R.  Co.  94  Tex. 
242,  59  S.  W.  874,  55:  497 

496.  It  is  not  negligence  per  se  for  a  pas- 
senger to  step  from  a  station  platform  to  a 
train  moving  at  the  rate  of  2  or  3  miles  an 
hour,  in  accordance  with  the  direction  of 
the  conductor,  when  there  is  nothing  to  in- 
dicate anv  unusual  or  peculiar  danger. 
Distler  v.  Long  Island  R.  Co.  151  N.  Y.  424, 
45  N.  E.  937,  35:  762 

497.  Negligence  in  stepping  on  to  a  train 
in  motion  will  not  prevent  a  passenger  from 
recovering  for  injuries  caused  by  his  being 
thrown  from  the  train  by  a  sudden  jerk  or 
lurch,  if  this  was  the  proximate  cause  of 
the  accident,  and  took  place  after  he  had 
safely  boarded  the  car  and  reached  the  top 
step  with  one  foot  upon  the  platform.  Id. 

498.  A  municipal  ordinance  making  it  a 
misdemeanor  for  one  not  an  employee  of  the 
railroad  company  to  be  found  jumping  or 
swinging  on  or  off  from  any  moving  train, 
if  applied  to  the  case  of  a  passenger  attempt- 
ing to  board  a  train  which  has  begun  to 
move,  is  void  as  beyond  the  power  of  the 
municipality  to  enact.  Mills  v.  Missouri, 
K.  &  T.  R.  Co.  94  Tex.  242,  59  S.  W.  874, 

55:  497 

499.  Although  it  is  not  negligence  on  the 
part  of  a  passenger  to  attempt  to  board  a 
slowly  moving  car,  he  is  not  entitled  to 
hold  the  carrier  liable  for  injuries  received 
in  making  the  attempt,  unless  he  shows 
affirmatively  that  the  injuries  were  due  to 
its  negligence.  Allen  v.  Northern  P.  R.  Co. 
35  Wash.  221,  77  Pac.  204,  66:  804 

500.  It  is  contributory  negligence,  as  a 
matter  of  law,  for  one  under  no  coercion  or 
necessity,  to  attempt  to  get  upon  a  moving 
train,  no  matter  what  the  speed,  in  a  place 
where  a  false  step  or  a  misstep  would  possi- 
bly, if  not  certainly,  be  serious.  Hunt- 
er V.  Cooperstown  &  S.  V.  R.  Co.  126  N. 
Y.  18,  26  N.  E.  958.  _  12:  429 

501.  Endeavoring  to  board  a  train  mov- 
ing at  the  rate  of  6  miles  an  hour  is  an  act 
of  such  danger  as  to  prevent  any  recovery 


CARUIEKS,  II.  a,  8. 


873 


from  the  railroad  company  for  the  death 
of  the  person  attempting  it,  even  though  the 
train  was  evidently  about  to  pass  the  sta- 
tion where  it  was  advertised  to  stop,  and 
where  he  was  waiting  for  it,  without  stop- 
ping, and  the  conductor  called  to  him  to 
jump  on  if  he  was  going.  Hunter  v. 
Cooperstown  &  S.  V.  R.  Co.  112  N.  Y.  371, 
19  X.  E.  820,  2:  832 

(2)  In  Getting  OS. 

Ordinance  Against,  see  Municipal  Corpora- 
tions, 256, .257. 

Question  for  Jury  as  to,  see  Trial,  326-336. 

See  also  supra,  279a-286,  311-314,  453,  485. 

For  Editorial  Notes,  see  infra,  IV.  §§  27, 
29. 

From  ferryboat. 

502.  A  passenger  on  a  ferryboat  on  which 
there  are  no  animals  or  vehicles  is  not 
guilty  of  negligence  contributing  to  his  in- 
jury, in  starting  to  pass  from  the  boat  by 
the  vehicle  way  when  that  is  opened  for 
passengers  by  the  persons  in  charge,  so  as 
to  prevent  his  recovery  for  injury  by  a  run- 
away horse  which  had  escaped  from  its 
stable  yard  at  a  distance  from  the  ferry, 
and  had  bolted  into  the  ferry  house  and  in- 
to that  driveway.  Watson  v.  Camden  & 
A.  R.  Co.  (N.  J.  Err.  &  App.)  55  N.  J.  L. 
125,  26  Atl.  136,  19:  487 
From  moving  street  car. 

See   also   infra,   526-530. 

503.  To  board  or  depart  from  an  electric 
ear  while  in  motion  is  not  negligence  per 
se.  Cicero  &  P.  Street  R.  Co.  v.  Meixner, 
160  111.  320,  43  N.  E.  823,  31 :  331 

504.  Jumping  from  an  electric  car  moving 
at  the  rate  of  from  4  to  5  miles  an  hour  is 
contributory  negligence  as  matter  of  law. 
Jagger  v.  People's  Street  R.  Co.  180  Pa.  436. 
36  Atl.  867,  38:  786 

505.  The  fact  that  a  door  in  the  side  of 
a  grip  car  is  open  is  no  invitation  to  a  pas- 
senger to  jump  off  while  the  car  is  running 
at  full  speed.  Weber  v.  Kansas  City  Cable 
R.  Co.  100  Mo.  194,  12  S.  W.  804,  7:  819 
In  front  of  car  on  other  track. 

506.  Stepping  from  a  street  car  which  is 
slowing  up,  but  is  still  in  motion,  in  front  of 
an  electric  car  coming  from  the  opposite  di- 
rection at  the  rate  of  15  miles  an  hour,  and 
which  is  lighted  and  can  be  plainly  seen, 
and  the  gong  of  which  is  ringing,  is  such 
negligence  as  will  prevent  the  liability  of 
the  street  car  company  for  the  resulting 
death  of  a  passenger,  where  there  is  noth- 
ing to  show  that  his  senses  are  defective  or 
that  he  exercises  any  care  or  caution,  al- 
though his  fellow  passengers  shout  to  him 
to  stop.  Creamer  v.  West  End  Street  R. 
Co.  156  Mass.  320,  31  N.  E.  391,         16:  490 

507.  A  passenger  who  alights  from  a  grip 
car  running  at  full  speed,  and  is  instantly 
struck  by  a  car  running  in  the  other  di- 
rection, which  he  can  see  if  he  looks  for  it, 
is  guilty  of  contributory  negligence  which 
will  prevent  any  recovery  for  his  injuries. 
Weber  v.  Kansas  City  Cable  R.  Co.  100  Mo. 
194,  12  S.  W.  804,  7:  819 


508.  A  passenger  on  a  crowded  street 
car,  whose  view  in  front  of  the  car  is  ob- 
structed by  standing  passengers,  is  not  guil- 
ty of  negligence,  as  matter  of  law,  in  step- 
ping from  the  moving  car  upon  the  track 
used  by  cars  going  in  the  opposite  direction, 
at  a  largely  used  street  crossing  in  a  popu- 
lous city,  when  no  signal  of  the  approach 
of  a  car  on  that  track  has  been  given. 
Smith  v.  Union  Trunk  Line,  18  Wash.  351, 
51  Pac.  400,  45:  169 
On  wrong  side  of  car. 

509.  It  is  not  negligence  as  matter  of  law 
to  attempt  to  alight  from  a  car  at  a  pleas- 
ure resort  station  established  by  a  street 
railway  company,  on  the  side  opposite  to 
that  prepared  for  the  reception  of  passen- 
gers, if  those  in  charge  of  the  car  have  in- 
vited an  alighting  on  such  opposite  side. 
Poole  V.  Consolidated  Street  R.  Co.  100 
Mich.  379,  59  N.  W.  390,  25:  744 
At  place  other  than  station. 

Question  for  Jury  as  to,  see  Trial,  329,  332, 

334. 
For  Editorial  Notes,  see  infra,  IV.  §  27. 

510.  A  female  passenger  required  to  alight 
from  a  freight  train,  beyond  the  station, 
was  not  negligent  in  not  discovering  gates 
into  a  private  inclosure  through  which  the 
station  might  be  reached  by  an  unmarked 
route;  and  the  company  is  liable  for  in- 
juries suffered  by  her  falling  while  attempt- 
ing to  cross  a  cattle  pit.  New  York,  C.  & 
St.  L.  R.  Co.  v.  Doane,  115  Ind.  435,  17. N. 
E.  913,  1:  157 

511.  That  a  car  has  not  reached  the  usual 
stopping-place  when  a  stop  is  made  and  a 
passenger  attempts  to  alight  will  not  render 
him  guilty  of  negligence,  if  there  was  no 
warning  not  to  alight,  and  from  the  sur- 
roundings a  passenger  might  well  have  un- 
derstood that  the  stop  was  made  for  that 
purpose.  Poole  v.  Consolidated  Street  R. 
Co.  100  Mich.  379,  59  N.  W.  390,  25:  744 
From  moving  train  generally. 

As  Proximate  Cause  of  Injury,  see  Proxi- 
mate Cause,  68. 

Question  for  Jury  as  to,  see  Trial,  326-328. 

For  Editorial  Notes,  see  infra,  IV.  §§  27, 
29. 

512.  The  attempt  on  the  part  of  a  passen- 
ger to  get  off  from  a  moving  train,  in  the 
absence  of  any  evidence  of  necessity,  ap- 
parent or  real,  is  contributory  negligence  as 
a  matter  of  law;  and  it  is  the  duty  of  the 
court  to  instruct  the  jury  that  he  cannot 
recover  in  an  action  for  damages  received 
in  making  such  attempt;  and  this  is  so  in 
a  greater  degree  where  the  attempt  is  made 
in  disregard  of  a  brakeman's  warning  not 
to  leave.  New  York,  L.  E.  &  W.  R.  Co.  v. 
Enchos,  127  Pa.  316,  17  Atl.  991,  4:  432 

513..  Jumping  from  the  steps  of  a  car 
while  the  train  is  leaving  a  station  is  not 
necessarily  negligent,  where  the  train  has 
not  stopped  a  reasonable  time  to  allow  the 
passenger  to  get  off,  and  an  ordinarily  cau- 
tious, careful,  and  prudent  person  would  not 
apprehend  danger  from  the  act.  Carr  v. 
Eel  River  &  E.  R.  Go.  98  Gal.  366,  33  Pac. 
213,  21:354 


374 


CARRIERS,  U.  a.  8. 


514.  A  woman  with  an  infant  in  her  arms 
on  the  steps  of  a  car  in  the  act  of  getting 
off  is  not  guilty  of  contributory  negligence 
in  alighting  after  the  car  is  in  motion, 
where,  by  starting  while  she  was  on  the 
steps,  it  compelled  her  to  choose  between 
the  clanger  of  stepping  off  and  of  being 
thrown  off  while  trying  to  re-enter  the  car. 
Odom  V.  St.  Louis  S.  W.  R.  Co.  45  La.  Ann. 
1201,  14  So.  734,  23:  152 

515.  A  bright  boy  nearly  thirteen  years 
of  age  who  is  expert  in  jumping  on  and  off 
moving  trains  is  chargeable  with  contribu- 
tory negligence  in  attempting  to  get  off  a 
train  running  at  the  rate  of  20  miles  an 
hour.  Howell  v.  Illinois  C.  R.  Co.  75  Miss. 
242,  21  So.  746,  36:  545 

51G.  Running  a  train  at  high  speed  in  vio- 
lation of  law  and  in  breach  of  the  promise 
of  the  engineer  to  a  boy  who  attempted  to 
jump  off  will  not  render  the  railroad  com- 
pany liable  for  injury  to  the  boy  in  at- 
tempting to  get  off  when  he  knew  the  dan- 
ger. Id. 
Failure  to  stop  at  station. 
For  Editorial  Notes,  see  infra,  IV.  §  27. 

517.  While  it  is  the  duty  of  a  railroad 
company  to  stop  its  train  at  a  station  to 
which  it  has  contracted  to  carry  a  passen- 
ger, and  to  land  him  safely  and  con- 
veniently, 3'et  the  fact  that  the  company 
neglects  its  duty  and  the  train  passes  the 
station  without  stopping  does  not  justify 
a  passenger  in  jumping  from  the  moving 
train,  unless  expressly  or  impliedly  invited 
to  do  so  by  the  employees  of  the  company. 
Walker  v.  'Vicksburg,  S.  &  P.  R.  Co.  41  La. 
Ann.  7!)5,  6  So.  916,  7:  111 

518.  Negligence  of  a  passenger  is  not 
shown  by  the  fact  that  he  was  thrown  from 
a  car  on  the  side  opposite  his  station,  just 
after  it  had  passed  the  station  without  af- 
fording opportunity  to  alight,  and  after  he 
had  crossed  to  the  other  side  under  a  rea- 
sonable expectation  that  the  train  would  be 
slowed  at  a  mill  just  beyond.  Brashear  v. 
Houston.  C.  A.  &  X.  R.  Co.  47  La.  Ann.  735, 
17  So.  200.  28:  811 
Order  or  advice  of  employees. 

For  Editorial  Notes,  see  infra,  IV.  §  27. 

510.  The  unlawful  act  of  a  person  in  at- 
tempting to  steal  a  ride  on  a  freight  train 
contributes  to  his  injury  in  jumping  off, 
while  the  train  is  in  motion,  under  the  or- 
ders and  threats  of  a  brakeman,  even  if  the 
latter  are  wrongful,  where  the  trespasser, 
instead  of  jumping  off,  could  keep  away 
from  the  brakeman  for  a  considerable  time 
at  least,  by  going  forward  to  the  other  end 
of  the  train.  Planz  v.  Boston  &  A.  R.  Co. 
157   Mass.  377,   32  N.   E.   356,  17:835 

520.  One  who  jumps  from  a  locomotive  on 
a  freight  tr.iin  while  it  is  running  at  a  dan- 
gerous speed,  because  he  is  told  by  the  fire- 
man that  he  will  be  arrested  if  he  is  found 
thereon  when  the  train  stops,  and  who  is 
not  a  passenirer,  but  is  riding  on  agreement 
with  the  fireman  to  shovel  coal  for  the 
privilege  of  riding,  is  chargeable  with  neg- 
ligence which  will  prevent  any  recovery  for 
injuries  received  in  jumping  off.    Woolsey  v. 


Chicago,  B.  &  Q.  R.  Co.  39  Neb.  798,  58  N. 
W.  444,  25:  79 

521.  A  threat  in  violent  and  insulting  lan- 
guage of  the  conductor,  who  has  force  at 
his  command  to  execute  such  threat,  to 
eject  a  person  from  the  train  by  force  if  he 
does  not  jump  off,  is  sufficient  compulsion 
or  show  of  force  to  excuse  the  person  from 
the  charge  of  contributory  negligence  in  so 
jumping  from  the  train.  Boggess  v.  Chesa- 
peake &  O.  R.  Co.  37  W.  Va.  297,  16  S.  E. 
525,  23:  777 
To  avoid  apprehended  danger. 

Evidence    as  to,   see    Evidence,     1562-1564, 

1903. 
In    Jumping     from     Public     Carriage,     see 

Hacks,  2. 
Question  for  Jury  as  to,  see  Trial,  315,  331, 

333. 
Instructions  as  to,  see  Trial,  665. 
See  also  supra,  457. 
For  Editorial  Notes,  see  infra,  LV.  §§  25,  29. 

522.  A  reasonable  cause  of  alarm  occa- 
sioned by  the  negligence  or  misconduct  of 
the  carrier  must  have  existed  to  render  it 
liable  for  injuries  received  by  a  passenger 
While  leaving  a  train  in  an  effort  to  escape 
an  apprehended  danger,  St.  Louis  &  S.  F. 
R.  Co.  V.  Murray,  55  Ark.  248,  18  S.  W.  50, 

16:  787 

523.  The  prudence  of  a  passenger's  leav- 
ing a  railway  train  to  escape  an  apparent 
danger  must  be  judged  by  the  circumstances 
as  they  appeared  to  him  at  the  time,  and 
not   by   the   result.  Id. 

524.  The  impulsive  and  unguarded  act  of 
a  lady  passenger,  by  which  she  is  hurt, 
while  trying  to  escape  from  a  car  because 
of  a  reasonable  fear  due  to  mismanagement 
of  the  carrier,  is  to  be  deemed  a  conse- 
quence of  such  mismanagement,  for  which 
the  carrier  is  responsible.  Gannon  v.  New 
York,  N.  H.  &  H.  R.  Co.  173  Mass.  40,  52 
N.  E.  1075,  43:  833 

525.  That  those  in  charge  of  a  railroad 
train  used  sufficient  precaution  to  prevent 
collision  with  a  train  standing  on  the  track 
ahead  of  it,  and  no  collision  in  fact  oc- 
curred, will  not  relieve  the  company  froia 
liability  for  injuries  received  by  a  passenger 
in  leaving  the  forward  train  to  avoid  being 
injured  by  the  collision,  which  appeared  to 
him  to  be  imminent.  St.  Louis  &  S.  F.  R. 
Co.   v.   Murrav,  55  Ark.  248,   18  S.  W.   50. 

16:  787 

526.  A  passenger  is  not  guilty  of  contrib- 
utory negligence  in  jumping  from  a  mov- 
ing car  to  avoid  an  impending  collision,  if 
he  acts  from  a  well-grounded  fear  of  im- 
minent danger.  Palmer  v.  Warren  Street 
R.  Co.  206  Pa.  574,  56  Atl.  49,  63:  507 

527.  That  a  passenger  jumps  from  a 
street  car  to  avoid  injury  by  an  impending 
collision  with  another  car  does  not  deprive 
him  of  the  benefit  of  the  presumption  that 
the  collision  was  the  result  of  the  carrier's 
negligence.  Id. 

528.  A  street  car  company  is  not  liable 
for  an  injury  to  a  passenger  in  jumping 
from  the  car  under  a  reasonable  apprehen- 
sion   of    danger,   where   there   was   no   real 


CARRIERS,  II.  a,  9. 


375 


danger  and  the  apparent  danger  was  caused 
by  the  negligence  of  the  gateman  at  the 
railway  crossing  and  his  confusing  and  con- 
tradictory warnings  and  signals  without 
any  necligence  of  the  driver  of  the  street 
car.  Kleiber  v.  People's  R.  Co.  1Q7  Mo. 
240,  17  S.  W.  946,  14:  613 

529.  A  passenger  upon  a  street  car  ap- 
proaching a  railroad  crossing,  which  has 
stopped  75  feet  away  from  the  crossing  and 
again  started,  is  under  no  duty  to  be  on 
the  lookout  to  learn  if  the  railroad  track 
can  be  safely  crossed  and  if  by  so  doing  he 
can  see  an  approaching  locomotive,  to  jump 
off, — especiallv  where  he  is  crippled. 
O'Toole  V.  Pittsburg-h  &  L.  E.  R.  Co.  158  Pa. 
99,  27  Atl.  737,  22:  606 

530.  To  jump  from  a  street  car  which  is 
about  to  cross  a  railroad  track  is  not  con- 
tributory negligence,  as  matter  of  law,  suffi- 
cient to  defeat  an  action  for  injuries  there- 
by received,  although  such  action  proved  to 
be  wrong,  where  the  view  of  the  track  was 
entirely  cut  off  until  the  crossing  was 
reached,  when  an  engine  was  seen  approach- 
ing only  a  short  distance  away,  and  the 
gate  keeper,  who  appeared  greatly  confused, 
was  lowering  the  gates  so  as  to  stop  the 
street  car  directly  on  the  track,  while  the 
actions  of  passengers  and  bystanders  in- 
dicated an  apprehensio.i  of  imminent  peril. 
Kleiber  v.  People's  R.  Co.  107  Mo.  240.  17 
S.   W.   946,  14:  613 

9.  Safety  of  Approaches  and  Platforms. 

a.  In    General. 

(1)  Carrier's  Duty  or  Negligence. 

Governmental    Regulations    as   to    Depots, 

see  infra,  III.  d. 
Injury  by  Things  Thrown  by  Baggageman 

from   Train,   see  Master   and   Servant, 

650,  651. 
Question  for  Jurj'  as  to,  see  Trial,  291-293. 
See  also  supra,  25,  26,  28,  29,  221-226. 
For  Editorial  Notes,  see  infra,  IV.  §  8. 

531.  A  carrier  cannot  delegate  to  another 
the  duty  of  seeing  that  the  means  of  egress 
from  its  terminal  grounds  are  reasonably 
safe.  Cotant  v.  Boone  Suburban  R.  Co.  125 
Iowa,  46,  99  N.  W.  115,  69:  982 

532.  A  less  degree  of  care  is  required  of 
a  railroad  company  in  regard  to  the  condi- 
tion of  the  approaches  to  its  cars — such  as 
platforms,  halls,  stairways,  etc.,  than  that 
of  the  roadbed,  machinery,  etc.;  the  rule 
being  that,  in  regard  to  the  former,  the 
company  is  bound  simply  to  exercise  ordi- 
nary care  in  view  of  the  dangers  to  be  ap- 
prehended. Kelly  v.  Manhattan  R.  Co.  112 
N.  Y.  443,  20  N.  E.  383,  3:  74 

533.  A  railway  carrier  must  provide  safe 
means  of  access  to  and  from  its  stations  for 
the  use  of  passengers,  and  passengers  have 
the  right  to  assume  that  the  means  pro- 
vided are  reasonablv  safe.  Delaware,  L.  & 
W.  R.  Co.  v.  Trautwein  (N.  J.  Err.  &  App.) 
52  N.  J.  L.  169,  19  Atl.  178,  7:  435 

534.  Passenger  carriers  are  bound  to  ex- 


ercise the  utmost  degree  of  care,  skill,  and 
diligence  consistent  with  the  nature  of  their 
business,  in  providing  safe  and  conveniont 
modes  of  access  to  their  trains  and  of  de- 
parture from  them.  Philadelphia,  W.  &  B. 
R.  Co.  v.  Anderson,  72  Md.  519,  20  Atl.  2, 

8:  673 

Pennsylvania  Co.  v.  Marien,  123  Ind.  415, 

23  N.  E.  973,  7:  687 

535.  A  carrier  of  passengers  is  under  a 
duty  to  provide  and  maintain  safe  alight- 
ing places,  and  must  respond  in  damages  to 
a  passenger  who,  without  contributory  fault 
on  his  part,  is  injured  by  a  negligent  failure 
to  perform  such  duty.  Louisville,  N.  A.  & 
C.  R.  Co.  v.  Lucas,  119  Ind.  583,  21  N.  E. 
968,  6:  193 

536.  Fatal  injuries  to  a  person  at  a  rail- 
road station  awaiting  the  arrival  of  a  rel- 
ative, at  the  place  provided  by  the  company 
for  that  purpose,  and  while  in  the  exercise 
of  due  care  and  caution,  render  the  railroad 
company  liable  if  caused  by  negligence  of 
its  employees.  Denver  &  R.  G.  R.  Co.  v. 
Spencer.  27  Colo.  313,  61  Pac.  606.     51:  121 

537.  A  railroad  company  is  not  relieved 
from  liability  for  injury  to  its  passenger 
by  reason  of  the  unsafe  condition  of  the 
depot  premises  which  the  passenger  must 
use  to  reach  its  trains,  by  the  fact  that  the 
premises  are  used  by,  and  in  possession  of. 
a  union  depot  company  or  its  receiver,  with 
whom  the  railroad  company  contracts  for 
terminal  facilities.  Herrman  v.  Great 
Northern  R.  Co.  27  Wash.  472,  68  Pac.  82. 

57:  390 
As  to  mail  bags. 

538.  A  railroad  company  must  not  per- 
mit the  continuance  of  dangerous  habits  of 
a  mail  agent  in  delivering  heavy  packages 
from  the  car  in  such  manner  as  to  endanger 
persons  lawfully  on  its  premises.  Shaw  v. 
Chicago  &  G.  t.  R.  Co.  123  Mich.  629,  82 
N.  W.  618,  49:  308 

539.  Continuance,  for  a  considerable 
length  of  time,  of  a  practice  by  mail  agents 
to  deliver  mail  bags  from  the  car  in  such  a 
manner  as  to  endanger  persons  on  the  prem- 
ises, will  charge  the  carrier  with  notice.  Id. 

540.  The  fact  that  mail  bags  are  thrown 
on  a  station  platform  by  postal  clerks  un- 
der the  control  of  the  United  States  does 
not  relieve  the  carrier  from  the  duty  to 
guard  against  accidents  to  passengers  from 
them.  Sargent  v.  St.  Louis  &  S.  F.  R.  Co. 
114  Mo.  348,  21  S.  W.  823,  19:  460 
As  to  stile. 

.541.  A  railway  company  which  expressly 
or  by  implication  invites  its  passengers  to 
use  a  stile  over  a  wire  fence  in  leaving  its 
grounds  is  bound  to  use  at  least  ordinary 
care  in  seeing  that  it  is  fit  for  the  purpose 
intended,  although  the  stile  was  not  erected 
by  it,  and  the  defective  part  is  not  on  its 
property,  but  where  it  has  no  right  to  go 
to  make  inspection  or  repairs.  Cotant  v. 
Boone  Suburban  R.  Co.  125  Iowa,  46,  99  N. 
W.    115,  69:  982 

As  to  toilet  room. 

542.  A  dangerous  hole  in  the  floor  of  a 
toilet  room  in  a  railroad  depot  is  evidence 
of   negligence   on   the   part   of  the   carrier. 


376 


CARRIERS,  II.  a.  9. 


Jordan  v.  New  York,  N.  H.  &  H.  R.  Ck).  165 

Mass.  346,  43  N.  E.   Ill,  32:  101 

Passageway. 

Question  for  Jury  as  to,  see  Trial,  292,  294. 

543.  A  railway  company  is  not  absolved 
from  the  duty  to  keep  a  passageway  held 
out  by  it  for  use  to  and  from  its  depot 
reasonably  safe,  by  the  fact  that  another 
passageway  is  provided.  Delaware,  L.  &  W. 
R.  Co.  V.  Trautwein  (N.  J.  Err.  &  App.) 
52  N.  J.  L.  169,  19  Atl.  178,  7:  435 

544.  It  is  the  duty  of  a  railroad  company 
to  furnish  a  reasonably  safe  passage  to  and 
from  its  mail  cars,  for  the  purpose  of  mail- 
ing letters,  while  stopping  at  its  regular 
stations,  when  such  company  carries  the 
mail  under  a  contract  with  the  government 
of  the  United  States,  by  whose  regulations 
postal  clerks  on  mail  trains  are  required  to 
receive  at  the  cars  stamped  letters  and  sell 
stamps;  and  a  failure  to  provide  such  pas- 
sage is  actionable  negligence.  Hale  v.  Grand 
Trunk  R.  Co.  60  Vt.  605,  15  Atl.  300,  1 :  187 

545.  The  fact  that  an  elevated  walk  to  a 
boat  landing  is  upon  a  public  street  does  not 
relieve  the  carrier  which  maintains  it  from 
liability  for  injuries  caused  by  its  danger- 
ous condition,  where  the  street  has  never 
been  opened  as  such,  or  used  except  by  the 
carrier  and  those  doing  business  with  it. 
Skottowe  V.  Oregon  S.  I,.  &  U.  N.  R.  Co.  22 
Or.  430,  30  Pac,  222,  16:  593 
Stairway. 

546.  \'STiere  an  elevated  railroad  company 
has  provided  a  suitable  covering  for  the 
staircase  leading  to  its  station,  a  rubber  tip 
for  each  step,  and  a  hand  rail  on  each  side 
to  aid  passengers  in  going  up  and  down,  its 
failure  to  throw  ashes  or  sawdust  upon  the 
steps  during  the  continuance  of  a  storm  of 
sleet  and  snow  which  lasts  from  midnight 
to  4  o'clock  in  the  morning,  and  which  ren- 
ders the  sidewalks  very  slippery,  or  to  clean 
off  the  steps  within  two  hours  after  the  ter- 
mination of  the  storm,  is  not  such  negli- 
gence as  to  render  it  liable  for  injuries  re- 
sulting to  a  passenger  from  falling  upon  the 
steps  while  attempting  to  descend  them, — 
especially  when  he  knows  of  the  storm  and 
its  effects.  Kellv  v.  Manhattan  R.  Co.  112 
Y.  Y.  443,  20  N.  E.  383,  3:  74 
Towards  whom  duty  owed. 

Duty   towards   Person   Assisting   Passenger 

on  or  off  Train,  see  supra,  473-477. 
See  also  supra.  177,  536;  infra,  .'574-.576. 
For  Editorial  Notes,  see  infra,  IV.   §  8. 

547.  A  woman  who  goes  to  a  railroad  de- 
pot in  the  night  to  see  her  husband  off  on  a 
freight  train  which  does  not  carry  passen- 
gers, but  on  which  he  is  carried  under  a 
contract  by  which  he  ships  some  horses  and 
other  freight,  is  a  mere  licensee  to  whom 
the  company  owes  no  duty  to  keep  lights 
and  railinjTS  on  the  station  platform.  Dowd 
V.  Chicago.  -M.  &  St.  P.  R.  Co.  84  Wis.  105. 
.54  N.  W.  24.  20:  527 

548.  One  who  goes  to  a  railroad  station 
and  on  the  platform  as  a  mere  spectator  for 
his  own  pleasure  and  convenience  is  there 
at  his  own  risk  and  peril,  and  cannot  re- 
cover for  injuries  received  in  consequence  of 
a  defective  platform,  unless  there  is  gross 


and  wanton  negligence  on  the  company's 
part  equivalent  to  intentional  mischief. 
Burbank  v.  Illinois  C.  R.  Co.  42  La.  Ann. 
1156,  8  So.  580,  11:720 

549.  A  passenger  on  a  steamboat,  whohaa 
purchased  a  ticket  not  entitling  him  to 
meals,  can  properly  go  on  shore  for  a  meal 
at  any  intermediate  stopping  place  before 
reaching  his  destination,  and  has  a  passen- 
ger's right  to  protection  during  his  egress, 
in  the  proper  manner,  from  the  steamer  for 
that  purpose.  Dodge  v.  Boston  &  B.  S.  S. 
Co.  148  Mass.  207,  19  N.  E.  373,  2:  83 

(2)  Contributory  Negligence. 

Question  for  Jury  as  to,  see  Trial,  321. 
See  also  supra,  533. 

549a.  Opening  a  station  for  the  sale  of 
tickets  upon  a  train  which  is  about  to  pass 
is  an  invitation  to  persons  to  come  there  if 
they  wish  to  take  the  train.  Jordan  v. 
New  York,  N.  H.  &  H.  R.  Co.  165  Mass. 
346,  43  N.  E.  Ill,  32:  101 

550.  Passengers  have  a  right  to  assume 
that  means  of  egress  from  the  carrier's  ter- 
minal grounds  are  reasonably  safe.  Cotant 
V.  Boone  Suburban  R.  Co.  125  Iowa,  46,  99 
N.  W.  115,  69:  982 

551.  A  passenger  has  the  right  to  assume 
that  the  usual  passage  leading  from  the 
ticket  office  of  a  railroad  station  to  the 
baggage  room  is  safe  for  use  for  the  purpose 
of  obtaining  baggage  to  be  checked,  and  the 
use  of  it  cannot  be  contributory  negligence 
merely  because  there  is  another  way  which 
might  be  used  without  injury,  when  the 
dangers  of  the  used  passageway  are  not 
perceivable  or  avoidable  by  the  passenger  in 
the  exercise  of  ordinary  care  in  the  use  of 
the  depot  and  passageway  for  the  purposes 
of  the  journey  to  be  undertaken.  Exton 
V.  Central  R.  Co.  (N.  J.  Err.  &  App.)  63 
N.  J.  L.  356,  46  Atl.   1099,  56:  508 

552.  When  a  proper  place  of  exit  for  pas- 
sengers from  a  steamer  is  provided,  a  warn- 
ing to  a  passenger  not  to  leave  at  another 
part  of  the  boat  is  a  reasonable  regulation 
which  the  passenger  is  botind  to  obey;  and 
his  disobedience  thereof  will,  in  the  absence 
of  a  good  reason  for  it,  prevent  his  recovery 
from  the  carrier  for  an  injury  growing  out 
of  it.  Dodge  v.  Boston  &'  B.  S.  S.  Co.  148 
Mass.  207,  19  N.  E.  373,  2:  83 

553.  A  passenger  is  justified  in  using  a 
passageway  held  out  by  the  carrier  as  a 
means  of  entrance  to  and  exit  from  the  pub- 
lic street;  and  it  is  immaterial  whether 
the  way  is  made  and  kept  in  repair  by  the 
carrier  or  other  parties.  Delaware,  L.  &  W. 
R.  Co.  V.  Trautwein  (N.  J.  Err.  &  App.) 
52  N.  J.  L.  169,  19  Atl.  178,  7:435 
In  toilet  room. 

554.  Due  care  on  the  part  of  a  lady  wha 
is  injured  by  falling  through  a  dangerous 
hole  in  the  floor  of  an  unlighted  toilet  room 
in  a  railroad  depot,  the  door  to  which  wa» 
open  from  the  waiting  room,  may  be  found 
by  the  jury,  where  she  fell  while  feeling 
with  her  hand  for  the  seat.  Jordan  v.  New 
York.  N.  H.  &  H.  R.  Co.  165  Mass.  .146.  4.*? 
N.  E.  Ill,  32:  lOT 


CARRIERS,  II.    a,  9. 


877 


555.  The  maintenance  of  a  toilet  room 
opening  out  of  a  waiting  room  in  a  railroad 
depot,  for  a  long  period  of  time,  and  leav- 
ing the  door  of  it  open  when  persons  enter 
the  depot  for  the  purchase  of  tickets,  al- 
though there  is  no  light  in  either  room  ex- 
cept what  comes  from  the  ticket  office,  is  an 
invitation  to  a  passenger  to  enter  the  toilet 
room  in  case  of  a  wish  to  use  it.  Id. 

6.  Platforms  Generally. 

For  Editorial  Notes,  see  infra,  IV.   §  8. 

556.  A  man  standing  on  a  station  plat- 
form waiting  for  a  train  after  purchasing 
a  ticket,  when  he  is  struck  and  injured  by 
the  body  of  a  person  killed  by  a  passing 
train,  has  no  greater  right  of  action  than 
if  he  had  been  injured  at  any  other  place 
where  he  had  a  right  to  be.\  Wood  v. 
Pennsylvania  R.  Co.  177  Pa.  306,  35  Atl. 
699,  35:  199 

557.  A  railroad  company  which  leaves  the 
platform  of  its  depot  in  an  unsafe  condition 
will  be  held  to  have  contemplated  the  gen- 
eral nature  of  any  injuries  to  a  passenger, 
and  it  is  not  necessary  that  precisely  such 
an  accident  as  actually  occurred  might  be 
anticipated.  Louisville,  N.  A.  &  C.  R.  Co. 
V.  Lucas,  119  Ind.  583,  21  N.  E.  968,  6:  193. 

558.  The  extraordinary  care  required  of  a 
railroad  company  in  respect  to  passengers 
on  trains  is  required  in  respect  to  a  bridge 
or  elevated  platform  on  the  railroad  proper- 
ty, which  is  used  for  an  approach  to  the 
station  and  over  which  persons  are  invited 
to  enter  the  premises  for  the  purpose  of 
taking  passage  on  trains,  where  it  joins 
an  open  trestle  on  the  same  level  into  which 
persons  are  liable  to  walk  while  crossing 
the  bridge.  Johns  v.  Charlotte,  C.  &  A.  R. 
Co.  39  S.  C.   162,  17  S.  E.  698,  20:  520 

559.  A  railroad  company  is  liable  for  an 
injury  to  a  passenger  resulting  from  an  un- 
safe condition  of  a  platform  of  its  depot, 
notwithstanding  the  negligence,  in  not  re- 
pairing the  platform,  of  another  company 
which  used  it  jointly  with  itself.  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Lucas,  119  Ind.  583,  21 
N.  E.  968,  6:  193 
In  street. 

See  also  infra,  573. 

560.  There  is  no  negligence  on  the  part 
of  a  street  car  company  in  building  in  a 
public  street,  for  the  accommodation  of  its 
passengers,  a  platform  aroxmd  the  stump 
of  a  pole  which  had  been  left  by  an  electric 
light  company,  and  which  the  railroad  com- 
pany had  no  right  to  remove,  which  will 
render  it  liable  to  one  who  stumbles  over 
it  and  is  injured  in  attempting  to  board  a 
car.  Lucas' v.  St.  Louis  &  S.  R.  Co.  174 
Mo.  270,  73  S.  W.  589,  61 :  452 

561.  A  street  car  company  does  not  main- 
tain the  stump  of  an  electric  light  pole  in 
its  platform  so  as  to  render  it  liable  for 
injuries  thereby  caused  to  a  person  attempt- 
ing to  board  its  car,  M'here.  for  the  accom- 
modation of  its  passengers,  it  merely  builds 
in  a  public  street  a  platform  around  the 
stump,    winch    had    been    left    there   by    an 


electric  light  company,  and  which  it  had  no 
right  to  remove.  Id. 

562.  A  street  railway  company  which,  for 
the  facilitation  of  its  own  business,  con- 
structs a  platform  along  a  street  tempora- 
rily submerged  during  a  freshet,  for  the  ac- 
commodation of  its  passengers,  is  required 
to  make  such  walk  reasonably  .safe,  but  not 
to  make  it  "as  reasonably  safe  as  possible." 
Finseth  v.  City  &  S.  R.  Co.  32  Or.  1,  51 
Pac.  84,  39:  517 
Contributory  negligence. 

563.  A  passenger  is  under  obligation  to 
look  where  he  steps  on  the  depot  platform 
at  a  small  station,  on  which  baggage  and 
mail  bags  are  handled.  Sargent  v.  St.  Louis 
&  S.  F.  R.  Co.  114  Mo.  348,  21  S.  W.  823, 

19:  460 

564.  Ordinary  care  is  required  of  a  pas- 
senger in  alighting  from  a  train  and  leav- 
ing the  platform;  and  in  the  absence  of 
such  care  no  recovery  can  be  had  for  in- 
juries sustained  by  falling  over  a  raised  por- 
tion of  the  platform.  Graham  v.  Penn- 
sylvania Co.  139  Pa.  149,  21  Atl.  151,  12:  293 

565.  The  fact  that  a  person  may  have 
seen  a  station  platform  out  of  repair  at  one 
time  does  not  bind  him  to  carry  such  de- 
fect in  mind  upon  all  future  occasions  when 
approaching  or  leaving  a  train  at  such  place. 
Pennsylvania  Co.  v.  Marien,  123  Ind.  415.  23 
N.  E.  073,  7:  687 

566.  A  passenger  is  not  bound  to  abandon 
the  use  of  a  .station  platform  which  is  not 
in  good  repair,  and  seek  some  other  way  of 
entering  and  leaving  the  cars,  if  it  is  still 
held  out  biv  the  company  as  safe,  and  used 
by  the  public.  Id. 

567.  Knowledge  of  the  unsafe  condition  of 
a  platform  provided  by  a  carrier  for  load- 
ing stock  will  not  prevent  recovery  for  in- 
juries to  a  person  on  attempting  to  use  it 
for  that  purpose  in  the  exercise  of  due 
care.  White  v.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  89  Ky.  478,  12  S.  W.  936,  7:  44 

568.  A  passenger  has  a  right,  within  rea- 
sonable limits  and  while  using  care  and 
caution,  to  rely  upon  the  presumption  that 
a  railroad  company  has  done  its  duty,  and 
that  the  platform  of  its  depot  is  safe. 
Louisville,  N.  A.  8r.  C.  R.  Co.  v.  Lucas,  119 
Ind.  583.  21  N.  E.  968,  6:  193 

569.  The  court  cannot  declare  it  to  be 
contributory  negligence  for  persons  to  walk 
off  from  an  elevated  walk  in  the  dark  at 
a  place  where  there  is  no  railing,  while 
thev  are  on  their  way  to  a  boat  landing. 
Sko'ttowe  V.  Oregon,  S.  L.  &  U.  N.  R.  Co. 
22  Or.  430,  30  Pac.  222,  16:  593 

c.  Duty  to  Keep  Open  and  Light. 

See  also  infra,  639,  640. 

Keeping  open. 

Joinder   of   Causes   of  Action   for  Fine   for 

Failure,  see  Courts,  295. 
See  also  infra,  574,  600,  601.  638-640. 
For  Editorial  Notes,  see  infra,  IV.  §  18. 

570.  The  opening  of  ticket  offices  at  de- 
pots during  intervals  when  they  are  not 
regularly   used  as   such  is  not   required  by 


378 


CARRIERS,  II.  a,  10. 


Kj.  Stat.  §  784,  requiring  ticket  offices  and 
waiting  rooms  to  be  kept  open  thirty  min- 
utes before  the  departure  of  a  regular  pas- 
senger train  "from  every  regular  passenger 
depot  from  which  such  trains  start  or  at 
which  thev  regularly  stop."  Louisville  & 
N.  R.  Co/v.  Com.  102  Ky.  300,  43  S.  W. 
458,  53:  149 

Lights. 

See  also  infra,  575,  576. 
For  Editorial  Notes,  see  infra,  IV.  §  7. 

571.  Where  passengers  are  discharged 
from  the  cars  after  dark,  it  is  the  duty  of 
a  railroad  company  to  light  its  stations  and 
platforms.  Louisville,  N.  A.  &  C.  R.  Co. 
V.  Lucas,  119  Ind.  583,  21  N.  E.  968,  6:  193 

572.  A  railroad  company  need  not  have 
gas  or  electric  lights  on  its  station  platforms 
at  villages  where  such  lights  are  not  used. 
Sargent  v.  St.  Louis  &  S.  F.  R.  Co.  114  Mo. 
348,  21  S.  W.  823,  19:  460 

573.  A  street  railway  company  which  con- 
structs a  walk  over  a  street  temporarily 
submerged  by  a  freshet,  for  the  use  of  pas- 
sengers in  going  from  one  car  to  another, 
is  not,  as  matter  of  law,  required  to  provide 
a  light  for  such  walk  at  night.  Finseth  v. 
City  &  S.  R.  Co.  32  Or.  1,  51  Pac.  84, 

39:  517 
Towards  whom  duty  owed. 
Duty   towards   Person   Assisting  Passenger 

on  or  off  Train,  see  supra,  473-477. 
See  also  supra,  87,  547-549. 
For  Editorial    Notes,  see  infra,  IV.  §  7. 

574.  The  duty  to  keep  ticket  offices  and 
waiting  rooms  open  at  least  thirty  minutes 
before  the  departure  of  a  passenger  train 
from  a  "regular  passenger  depot"  from 
which  such  trains  start  or  at  which  they 
regularly  stop,  imposed  by  Ky.  Stat.  §  784, 
does  not  extend  to  the  opening  of  such 
rooms  for  night  trains  for  the  sale  of  tick- 
ets for  which  the  railroad  company  had 
never  kept  such  rooms  open  or  charged 
passengers  getting  on  them  more  than  tick- 
et rates.  Louisville  &  N.  R.  Co.  v.  Com. 
102  Ky.  300,  43  S.  W.  458,  53:  149 

575.  A  mere  licensee  injured  in  the  dark 
by  falling  through  an  open  trapdoor  while 
crossing  the  platform  of  a  railroad  station, 
which  the  company  allows  people  to  use  as 
a  short  cut  between  public  streets,  cannot 
recover  damages  from  the  company,  al- 
though no  light  or  barrier  was  placed  at 
the  opening.  Rediean  v.  Boston  &  M.  R. 
Co.  155  Mass.  44,  28  N.  E.  1133,         14:  276 

.576.  A  carrier's  liability  for  the  lack  of 
proper  lights  on  a  walk  leading  to  its  boat 
landing,  on  account  of  which  persons  are 
injured  while  on  their  way  to  the  boat  in 
the  evening,  is  not  defeated  by  the  fact  that 
the  boat  did  not  start  until  morning,  where 
passengers  were  provided  with  sleeping  ac- 
commodations on  the  boat  at  an  extra 
charge.  Skottowe  v.  Oregon  S.  L.  &  U.  N. 
R.  Co.   22   Or.  4.30,  30  Pac.  222,         16:  593 

10.  Tickets;    Conditions;     Fare. 

a.  In  General. 

Rules   and   Regiilations   as   to   Tickets,    see 
supra,  27-32. 


Person  with  Ticket  as  Passenger,  see  supra, 
vS2,  83,  87,  93. 

Provisions  for  Stop  Over,  see  supra,  407- 
416. 

Ejection  for  Nonpayment  of  Fare  or  De- 
fective Ticket,  see  supra,  II.  a,  5,  b, 
(2.) 

Sale  of  Tickets  beyond  Line,  see  infra,  II. 
c,  1. 

Confining  Sale  of  Tickets  to  Agents,  see 
infra,    1019,   1020. 

Redemption  of  Ticket,  see  infra,  1021. 

Discrimination  between  Passengers,  see  in- 
fra,  1121-1125. 

Regulation  of  Rates,  see  infra.  III.  c. 

Condition  Precedent  to  Suit  to  Enjoin  Sale 
of  Tickets  by  Ticket  Brokers,  see  Ac- 
tion or  Suit,  25. 

Delegation  of  Power  as  to  Creation  of  Of- 
fense in  Sale  of  Tickets,  see  Constitu- 
tional Law,  173. 

Requiring  Free  Transportation  of  Shippers 
of  Stock,  see  Constitutional  Law,  420. 

Due  Process  in  Prohibiting  Transfer  of,  see 
Constitutional  Law,  751-753. 

Judicial  Notice  of  Conductor's  Authority 
as  to,  see  Evidence,  91. 

Judicial  Notice  as  to  Surrender  of  Sleeping 
Car  Ticket,  see  Evidence,  88. 

Conclusiveness  of  Evidence  of  Berth  Check, 
see  Evidence,  1105. 

Opinion  Evidence  as  to  Opportunity  to  Ob- 
tain Ticket,  see  Evidence,  1355. 

Evidence  of  Declaration  as  to  Reason  for 
Refusing  Ticket,  see  Evidence,  1631. 

Repeal  of  Statute  as  to,  see  Statutes,  564. 

See  also  supra,  117,  404. 

For  Editorial  Notes,  see  infra,  IV.  §   18. 

577.  Railroad  tickets  in  the  hands  of  pas- 
sengers are  not  property  within  the  con- 
stitutional meaning  of  that  term.  Jannin 
V.  State,  42  Tex.  Crim.  Rep.  631,  51  S.  W. 
1126,  62  S.  W.  419,  53:  349 

578.  A  passenger  is  not  called  upon  to 
question  the  right  of  a  conductor  in  taking 
up  a  ticket  in  order  to  preserve  the  right 
to  be  carried  to  destination.  Sloane  v. 
Southern  Cal,  R.  Co.  Ill  Cal.  668,  44  Pac. 
320,  32:  193 

579.  The  constitutional  declaration  that 
railways  are  public  highways  does  not  make 
them  such  in  the  sense  that  persons  are  au- 
thorized to  ride  on  railway  cars  without 
consent  of  the  company  or  payment  of  fare. 
Farber  v.  Missouri  P.  R.  Co.  116  Mo.  81, 
22   S.   W.   631,  20:  350 

580.  A  ticket  for  a  voyage  purporting  to 
be  a  contract,  containing  written  and  print- 
ed folios  which  cover  the  greater  part  of 
two  quarto  pages,  bearing  the  signature  of 
the  carrier's  agent,  with  a  blank  space  for 
that  of  the  passenger,  charges  him  with  no- 
tice of  the  stipulations,  and  they  are  bind- 
ing on  him  although  he  does  not  read  them. 
Fonseca  v.  Cunard  S.  S.  Co.  153  Mass.  553, 
27  N.  E.  66.5,  12:  340 

581.  The  illegibility  of  the  date  on  a  tick- 
et which  the  passenger  receives  in  that  con- 
dition does  not  impose  on  him  the  duty  of 
getting  the  indorsement  of  a  ticket  receiv- 
er as  to  its  validity  because  it  is  questioned 


•CARRIERS.  II.  a,  10. 


879 


by  the  gateman;  and  a  rule  of  the  railroad 
company  making  such  a  requirement  is  un- 
reasonable because  it  would  subject  a 
passenger  to  great  inconvenience,  and  might 
cause  him  to  lose  his  train.  Northern  C. 
R.  Co.  V.  O'Conner,  76  Md.  207,  24  Atl.  449, 

16:  449 

582.  The  mere  purchase  by  a  husband  of 
an  ordinary  railway  ticket  for  his  wife,  even 
though  he  pays  for  it,  does  not  constitute 
a  contract  between  the  husband  and  the 
company  for  the  safe  transportation  of  the 
wife,  but  an  implied  contract  for  safe 
carriage  in  favor  of  the  wife  only.  Aiken 
V.  Southern  Ry.  Co.  118  Ga.  118,  44  S.  E. 
828,  62:  666 
Passenger  not  signing  ticket. 

See  also  infra,  630,  877. 

583.  The  fact  that  a  passenger  does  not 
sign  a  ticket  which  constitutes  a  contract 
and  has  a  blank  space  for  his  sig^ture  does 
not  relieve  him  from  the  effects  of  its 
stipulations.  Fonseca  v.  Cunard  S.  S.  Co. 
153  Mass.  553,  27  N.  E.  665,  12:  340 
Duty  to  pay  fare  of  child. 

See  also  supra,  367,  368. 

584.  The  law  implies  a  contract  on  the 
part  of  a  parent  who  enters  a  railroad 
train  with  a  child  non  sui  juris  and  subject 
to  payment  of  fare,  to  pay  the  fare  of  such 
child.  Braun  v.  Northern  P.  R.  Co.  79 
Minn.  404,  82  N.  W.  675,  49:  319 
Limitations  in  ticket  generally. 
Prohibiting      Enforcement      of      Injunction 

against     Dealing     in     Nontransferable 

Tickets,  see  Prohibition,  9. 
See  also  infra,  715,  716. 
For  Editorial  Notes,  see  infra,  IV.   §  30. 

585.  The  mere  stamping  or  printing  of  a 
limitation  upon  a  railroad  ticket,  and  the 
acceptance  of  such  ticket  by  a  passenger, 
are  not  sufficient  to  bind  him  to  such  limi- 
tation in  the  absence  of  actual  notice  of  it, 
and  his  assent  thereto  when  he  purchases 
the  ticket.  Louisville  &  N.  R.  Co.  v.  Turn- 
er, 100  Tenn.  213,  47  S.  W.  223,  43:  140 
Limitations  as  to  time  of  using. 

See   also   supra,   382,   385,  407;    infra,   608- 

615. 
For  Editorial  Notes,  see  infra,  IV.  §  18. 

586.  To  limit  a  general  ticket  for  passage 
on  a  railroad,  for  which  full  price  is  paid, 
to  the  date  on  which  it  is  sold,  there  must 
be  an  express  contract  based  upon  a  con- 
sideration, or  the  alternative  must  be  given 
the  purchaser  to  have  a  full  and  unlimited 
licket.  Louisville  &  N.  R.  Co.  v.  Turner, 
100  Tenn.  213,  47  S.  W.  223,  43:  140 

587.  Posting  notices  of  intention  to  limit 
the  time  for  passage  on  railroad  tickets  in 
the  waiting  rooms,  ticket  offices,  and  on  the 
cars,  will  not  affect  passengers  with  notice 
so  that  they  will  be  bound  by  limitation 
by  taking  the  ticket  without  agreeing  to 
the  limitation.  Id. 
Conditions   on   back  of  ticket. 

See  also  infra,  736,  737. 

For  Editorial  Notes,  see  infra,  IV.   §   18. 

588.  A  contract  on  the  back  of  a  ticket 
on  which  an  employee  of  the  carrier  was 
traveling  ,is  a  passenger  is  invalid  so  far 
as  it  purports  to  exonerate  the  carrier  from 


liability  for  its  negligence  or  that  of  its 
servants.  Doyle  v.  Fitchburg  R.  Co.  166 
Mass.  492,  44  N.  E.  611,  33:  844 

589.  Conditions  on  the  back  of  a  ticket 
cannot  release  the  railroad  from  liability 
for  the  penalty  given  by  Mass.  Pub.  Stat, 
chap.  112,  §  212,  to  the  widow  and  children 
and  next  of  kin  of  a  passenger  injured  by 
the  gross  negligence  or  carelessness  of  the 
servants  of  the  company.  Doyle  v.  Fitch- 
burg R.   Co.    162   Mass.   66,  37   N.   E.   770, 

25:  157 
Right  to  rely  on  face  of  ticket. 

590.  The  face  of  the  ticket  is  conclusive 
evidence  to  the  conductor  of  the  terms  of 
the  contract  of  carriage  between  a  passen- 
ger and  the  carrier.  Poulin  v.  Canadian  P. 
R.  Co.  6  U.  S.  App.  298,  3  C.  C.  A.  23,  52 
Jred.   197,  17:  800 

591.  The  face  of  a  passenger's  ticket  is 
not  the  sole  criterion  of  his  right  of  passage, 
but»  if  he  has  made  a  valid  contract  for  pas- 
sage he  is  entitled  thereto,  though  the  face 
of  the  ticket  may  not  in  any  true  sense  ex- 
press the  contract.  O'Rouke  v.  Citizens' 
Street  R.  Co.  103  Tenn.  124,  52  S.  W.  872, 

46:  614 
Misdated  ticket. 
See  also  supra,  383. 

592.  The  clause  "continuous  passage  with- 
in one  day  of  date  of  sale"  on  a  railroad 
ticket  does  not  make  the  ticket  invalid  on 
the  day  of  sale  because  it  bears  a  prior 
date.  Ellsworth  v.  Chicago,  B.  &  Q.  R.  Co. 
95  Iowa,  98,  63  N.  W.  584,  29:  173 
Ticket  for  wrong  road. 

Evidence  of  Declarations  as  to,  see  Evidence, 

1632. 
See  also  supra,  366. 

593.  A  railroad  company  whose  ticket  was 
given  by  mistake  to  a  passenger  in  lieu  of 
a  ticket  of  another  companv  which  was 
called  for,  where  it  was  bought  in  a  union 
depot  of  an  agent  who  had  authority  to 
sell  tickets  for  both  companies,  is  not  liable 
for  the  agent's  mistake,  since  the  breach  of 
duty  is  that  of  the  company  whose  ticket 
was  desired.  Scott  v.  Cleveland.  C.  C.  &  St. 
L.  R.  Co.  144  Tnd.  125,  43  N.  E.  133.  32:  154 
Palace  car  ticket. 

594.  A  ticket  for  a  room  in  a  palace  car 
of  a  company  which  does  not  own  or  oper- 
ate the  train  of  which,  by  contract  with 
the  carrier,  such  car  forms  a  part,  marked 
good  for  that  date  and  car  only,  when  ac- 
companied by  a  first-class  railroad  ticket 
from  one  designated  station  to  another,  is 
not  a  contract  of  the  palace-car  company  to 
carry  the  passenger  over  the  designated 
route,  but  merely  to  accommodate  him  in 
its  car  as  long  as  the  railroad  company  will 
convey  it.  Duval  v.  Pullman's  Palace  Car 
Co.  10  C.  C.  A.  331,  23  U.  S.  App.  527.  62 
Fed.  265,  33:  715 
Mutilation. 

595.  To  "mutilate"  a  railroad  ticket,  with- 
in the  reasonable  meaning  of  a  stipulation 
on  its  face  that  it  shall  not  be  good  for 
passage  if  mutilated  in  any  way,  it  must 
be  deprived  of  some  essential  or  material 
part;  and  such  a  ticket  is  valid,  although 
torn   in  two  pieces,   when  both  pieces  are 


880 


CARRIERS,  II.  a,  10. 


presented  to  the  conductor  at  the  same  time 
and  it  is  apparent  that  they  are  parts  of  the 
same  ticket,  that  together  they  form  the  en- 
tire ticket,  and  that  no  fraud  has  been 
perpetrated  upon  the  railroad  company. 
Youpg  V.  Central  of  Georgia  R.  Co.  120  Ga. 
25,  47  S.  E.  556,  65:436 

Mileage  or  commutation  books. 
Person  Having,  as  Passenger,  see  supra,  82. 
Limitation   of   Liability   in,   see   infra,   661. 
Statutory  Provision  as  to,  as  Affecting  Com- 
merce, see  Commerce,  42. 
See  also  supra,   191. 

590.  A  carrier  is  not  obliged  to  honor  a 
coupon  from  a  commutation  book  of  tick- 
ets intended  for  passage  between  designated 
points  and  which  provide  that  they  are  not 
"good  unless  detached  by  the  conductor" 
when  is  has  been  detached  by  the  commuter 
and  the  book  left  with  a  member  of  his 
family,  so  that  it  is  not  present  when  he 
tenders  the  coupon  in  payment  of  fare. 
United  Railways  &  Electric  Co.  v.  Hardesty, 
94  Md.  661,  51  Atl.  406,  57:  275 

6.  Excursion  or  Round-Trip  Tickets. 

Limitation  of  Liability  in,  see  infra,  660. 
Liability   of   Connecting  Carrier,   see  infra, 

976. 
Refusal  of  Connecting  Line  to  Honor,  see 

infra,  980-984. 
See  also  supra,  596. 

597.  An  excursion  ticket  having  the  words 
"Not  good  for  passage,"  on  the  going  part 
of  the  ticket,  and  the  words  "If  detached," 
on  the  returning  part,  is  valid  when  both 
parts  are  presented  together  at  the  same 
time,  to  the  same  conductor,  on  the  going 
trip,  although  the  parts  have  become  sepa- 
rated by  inadvertence.  Wightman  v.  Chicago 
&  N.  W.  R.  Co.  73  Wis.  169,  40  N.  W.  689, 

2:  185 

508.  A  sale  of  round-trip  excursion  tick- 
ets at  reduced  rates  is  itself  sufficient  to 
put  a  purchaser  upon  inquiry  and  affect 
him  with  notice  of  unusual  terms  and  con- 
ditions attached  to  the  use  of  such  ticket. 
Watson  V.  Louisville  &  N.  R.  Co.  104  Tenn. 
194,  56  S.  W.  1024,  49:  454 

599.  For  refusing  to  accept  the  remaining 
part  of  a  return  ticket  on  the  return  trip, 
where  the  return  part  has  been  taken 
through  mistake  by  the  conductor  on  the 
first  trip,  and  ejecting  the  passenger  for 
refusing  to  furnish  any  other  ticket  or  fare, 
the  carrier  may  be  compelled  to  pay  dam- 
ages. Kansas  Citv,  M.  &  B.  R.  Co.  v.  Ri- 
ley, 68  ^iliss.  765,*  9  So.  443,  13:  38 
Right  to  reduced  fare  without  procuring. 

600.  The  mere  fact  that  a  railroad  com- 
pany has  been  accustomed  to  sell  round- 
trip  tickets  at  reduced  rates  on  Sundays 
cannot  be  relied  on  to  constitute  a  contract 
of  carriage  at  that  reduced  rate,  when  a 
person  finds  the  ticket  office  closed  on  Sun- 
day, and  is  unable  to  get  such  a  ticket. 
Johnson  v.  Georgia  R.  &  Bkg.  Co.  108  Ga. 
496.   34    S.    E.    127,  46:  502 

601.  A  right  to  ride  at  the  reduced  rate 
of  fare  at  which  round-trip  tickets  had  been  j 
previously     sold  on     Sundays     cannot     be 


claimed  by  one  who  gets  on  the  train  on 
Sunday  without  such  ticket  merely  because 
he  was  unable  to  procure  such  a  ticket  on 
account  of  the  ticket  office  being  closed.  Id. 
Requirement  as  to  stamping  return  part 
See  also  supra,  377-380. 

602.  A  condition  printed  on  the  return 
part  of  a  round-trip  excursion  ticket,  "Not 
good  for  passage  unless  stamped  by  joint 
agent  ot"  the  place  of  departure,  is  a 
reasonable  regulation  by  the  carrier.  Wat- 
son V.  Louisville  &  N.  R.  Co.  104  Tenn.  194, 
56  S.  W.  1024,  49:  454 

603.  That  the  purchaser  of  a  round-trip 
excursion  ticket  is  unable  to  read  or  write, 
and  i?  not  specially  notified  of  the  require- 
ments and  conditions  upon  which  the  tick- 
ets are  sold,  does  not  relieve  him  from  the 
necessity  of  complying  with  a  condition 
printed  on  the  return  portion  of  the  ticket, 
requiring  it  to  be  stamped  by  the  agent  of 
the  company  on  the  day  of  departure.     Id. 

604.  The  fact  that  other  passengers  are 
allowed  to  travel  upon  round-trip  excur- 
sion tickets  without  having  them  stamped 
as  required  by  a  rule  of  the  company  does 
not  abrogate  the  rule,  or  relieve  a  purchaser 
of  such  a  ticket  from  the  duty  to  comply 
with  the  condition,  unless  such  violations 
of  the  rule  are  so  frequent  as  to  amount  to 
a  custom  and  to  mislead  the  purchaser.  Id. 
On  what  trains  good. 

See  also  supra,  385. 

605.  A  statement  by  the  agent,  when  sell- 
ing a  round-trip  railroad  ticket  good  only 
on  the  day  of  sale,  that,  in  case  the  only 
train  returning  that  day  is  late,  the  pur- 
chaser may  have  difficulty  in  getting  it  to 
stop  to  let  him  off,  has  no  effect  upon  his 
rights  under  the  contract.  Illinois  C.  R.  Co. 
V.  Harris,  81  Miss.  208,  32  So.  309,    59:  742 

606.  The  right  of  the  holder  of  a  round- 
trip  railroad  ticket  good  only  on  the  day 
of  sale,  to  return  upon  the  only  train  pass- 
ing his  station  that  day,  is  not  affected  by 
the  statement  of  a  flagman,  when  he  at- 
tempts to  board  the  train,  that  it  does  not 
stop  at  his  destination,  and  his  agreement 
to  leave  the  train  at  the  last  stop  before 
his  destination.  Id. 

607.  A  round-trip  ticket  via  "Burlington 
branch"  from  a  point  on  the  main  line  of  a 
railroad  to  a  point  on  the  branch  line,  with 
the  provision  that  it  is  "not  good  to  stop  off 
en  route,"  is  subject  to  a  regulation  of  the 
company  making  it  good  on  the  main  line 
upon  those  trains  only  which  connect  with 
trains  on  the  branch,  and  does  not  entitle 
a  passenger,  on  reaching  the  junction  upon 
his  return  trip,  to  take  an  accommodation 
on  the  main  line  which  stops  at  his  destina- 
tion, but  which  he  is  enabled  to  catch  only 
because  it  is  late  and  by  leaving  the  branch 
train  while  it  stands  on  a  Y  track  and  walk- 
ing to  the  depot,  although  he  might  have 
ridden  on  the  accommodation  train  without 
paying  any  more  for  his  ticket  if  he  had 
bought  separate  tickets  for  the  round  trip 
on  each  line,  and  although  by  taking  the  ac- 
commodation he  could  avoid  waiting  a  half 
hour  or  more  for  the  so-called  connecting 
train.     Pennsylvania  R.  Co.  v.  Parry   (N.  J. 


CARRIERS.  11.    a.  10. 


881 


Err.  &  App.)    55    N.   J.  L.  551,  27  Atl.  914, 

22:  251 
Expiration  of  time  for  use. 
See  also  supra,  586,  587. 
For  Editorial  Notes,  see  infra,  IV.  §  18. 

608.  The  holder  of  a  railroad  ticket  who 
does  not  use  it  for  a  passage  during  its  life 
for  such  a  purpose  is  not  entitled,  as  matter 
of  law,  to  have  the  purchase  price  refunded. 
Trezona  v.  Chicago  G.  W.  R.  Co.  107  Iowa, 
22,   77    N.    W.   486,  43:  136 

609.  Fraudulent  concealment  by  a  rail- 
road company,  at  the  time  of  selling  a 
round-trip  ticket,  of  facts  which  will  pre- 
vent it  from  carrying  the  passenger  on  his 
return  trip  within  the  time  limited,  does 
not  extend  the  time  within  which  he  may 
use  the  return  coupon.  Elliott  v.  Southern 
P.  Co.  145  Cal.  441,  79  Pac.  420,         68:  393 

610.  The  question,  what  is  a  reasonable 
time,  or  the  first  opportunity,  ftv  one  who 
has  purchased  a  round-trip  ticket,  the  re- 
turn portion  of  which  he  is  prevented  from 
using  because  of  a  strike,  to  make  use  of  it 
after  the  cessation  of  the  strike,  cannot  be 
determined  by  when  he  was  next  at  the  in- 
termediate terminal  with  intent  to  travel 
to  the  point  where  he  began  his  journey.  Id. 

611.  Failure  of  a  railroad  company  to 
perform  its  contract  to  carry  the  passenger 
of  a  round-trip  ticket  on  his  return  journey 
because  of  a  strike,  by  reason  of  wliich  he 
is  put  to  the  trouble  and  expense  of  return- 
ing without  its  aid,  does  not  entitle  him  to 
use  the  return  coupon  upon  a  subsequent 
journey  after  the  expiration  of  the  time  lim- 
ited, although  he  attempts  to  make  such  use 
within  a  reasonable  time.  Id. 

ei2.  The  inability  of  a  railroad  company 
to  perform  its  contract  to  carry  the  purchas- 
er of  a  return-trip,  limited  ticket  on  his  re- 
turn journey  because  of  a  strike  does  not 
extend  the  time  within  which  it  is  bound 
to  honor  the  ticket.  Id. 

613.  A  statement  by  a  railroad  employee 
at  a  ticket  office  upon  being  shown  a  re- 
turn-trip ticket  and  telling  the  holder  that 
trains  are  not  running,  in  response  to.  a 
question  as  to  what  would  happen  if  trains 
were  not  running  within  the  time  limited  in 
the  contract,  that  the  ticket  would  be  good 
when  they  did  run,  does  not  waive  the  limi- 
tation as  to  time,  contained  in  the  ticket. 

Id. 

614.  A  ticket  over  connecting  roads,  limit- 
ed as  to  time,  but  which  is  a  joint  contract 
of  the  carriers,  entitles  a  passenger  who  is 
delaj'ed  by  a  wreck  on  one  of  the  roads  to 
complete  his  journey,  although  the  time  ex- 
pires before  he  reaches  the  last  of  the  con- 
necting roads.  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Looncy,  85  Tex.  158,  19  S.  W.  1039.     16:  471 

615.  A  coupon  ticket  over  connecting  roads, 
limited  as  to  time  and  expressly  providing 
that  the  currier  selling  it  is  not  responsible 
beyond  its  own  line,  but  is  only  an  agent 
of  the  connecting  roads,  will  not  entitle  a 
passenger  to  be  carried  over  the  last  road 
in  the  series  after  the  time  has  expired,  al- 
though his  failure  to  complete  the  journey 
on  time  was  due  to  a  wreck  on  one  of  the 
other  connecting  roads.  Id. 


Transferability. 

For  JCditorial  Notes,  see  infra,  IV,  §   18. 

616.  Each  portion  of  a  "coupon  ticket" 
issued  by  a  railroad  company  for  itself  and 
also  as  agent  for  other  lines  to  be  passed 
over  is  a  separate  contract  so  far  as  to  be 
transferable,  although  the  ticket  is  sold  at 
a  reduced  rate,  where  there  are  no  words 
of  limitation  or  restriction  thereon  as  to 
the  person  entitled  to  use  it.  Nichols  v. 
Southern   P.  Co.  23   Or.    123,  31   Pac.  296, 

18:  55 

617.  A  round-trip  excursion  ticket  used  by 
the  purchaser  in  going  to  the  station  named 
therein,  and  then  sold  and  transferred,  no 
restrictions  appearing,  is  valid  in  the  hands 
of  the  holder,  and  entitles  him  to  a  return 
passage  subject  to  the  prescribed  limitations 
a?  to  time,  etc.  Carsten  v.  Northern  P.  R. 
Co.  44  Minn.  454,  47  N.  W.  49,  9:  688 

618.  A  railroad  company  may  issue  spe- 
cial tickets  at  a  reduced  rate,  which  shall 
be  nontransferable,  either  limited  or  unlim- 
ited as  to  time  or  occasion;  and,  in  case 
the  contract  of  which  the  ticket  is  the  evi- 
dence is  violated  by  a  transfer  of  the  tick- 
to,  it  may  invoke  the  jurisdiction  of  a  court 
of  equity  to  cancel  the  contract  because  of 
the  fraud;  or,  if  the  ticket  is  used  by 
another,  it  may  maintain  an  action  for 
damages  for  breach  of  the  contract.  Schu- 
bach  V.  McDonald,  179  Mo.  163,  78  S.  W. 
1020,  65:136 

^19.  A  purchaser  of  a  special  railroad 
ticket  at  a  reduced  rate,  which  on  its  face 
recites  that  it  is  nontransferable,  and  that 
it  is  supported  by  the  consideration  of  a 
reduced  rate,  has  no  right  to  transfer  it, 
a  deprivation  of  which  will  give  him  a  cause 
of  complaint.  Id. 

620.  No  assignee  of  a  railroad  ticket  sold 
at  a  reduced  rate,  and  which  recites  that 
fact  on  its  face,  and  also  that  it  is  non- 
transferable, can  acquire  any  right  in  the 
ticket  as  a  contract  for  transportation, 
which  he  can  assign,  or  which  will  give  him 
a  right  to  complain  in  case  he  is  forbidden 
to  assign  it.  Id. 

c.  Passes. 

Persons  Riding  Free  as  Passengers,  see  su- 
pra, II.  a,  2,  b,  'I). 
Employee    Riding    on,    as    Passenger,    see 

supra,  U.  a,  2,  6,  (1),  (b). 
Oral  Agreement  to  Furnish,  see  Contracts, 

155. 
Construction  of  Contract  for  Free  Pass,  see 

Contracts,  334. 
Recovery  for  Injury  where  Contract  for  Free 

Passage  was  Illegal,  see  Contracts,  629. 
Prohibition   against   Officer   Riding  on,   see 

Officers,  171. 
Prohibition  against  Free  Transportation,  see 

Statutes,  475. 
See  also  infra,   1123. 
For  Editorial  Notes,  see  infra,  IV.  §  20. 

621.  Conditions  on  the  back  of  a  void  pass 
are  without  effect  upon  the  rights  of  the 
person  who  is  attempting  to  use  it  for 
transportation.  McNeill  v.  Durham  &  C.  R. 
Co.  135  N.  C.  682,  47  S.  E.  765,        67:  227 


382 


CARRIERS,  II.    a,  10. 


Limitation  of  liability  in. 

Limitation  of  Liability  Generally,  see  infra, 

II.  a,  10,  f. 
See  also  supra,  588,  589. 
For  Editorial  Notes,  see  infra,  IV.  §  20. 

622.  One  who  accepts  a  free  pass  on  a 
street  railway,  with  a  printed  condition 
that  the  company  shall  not  be  liable  under 
any  circumstances,  whether  by  negligence 
of  agents  or  otherwise,  for  injuries,  is 
bound  by  that  condition.  Muldoon  v. 
Seattle  City  R.  Co.  7  Wash.  528,  35  Pac. 
422,  22:  794 

623.  A  person  traveling  with  a  friend 
by  invitation,  knowing  that  they  are  go- 
ing on  a  pass  held  by  the  latter,  although 
not  seeing  the  pass  or  knowing  its  con- 
tents, is  bound  by  a  condition  thereon  that 
passengers  traveling  upon  it  assume  all 
risks  of  injury.  Rogers  v.  Kennebec  Steam- 
boat Co.  86  Me.  261,  29  Atl.  1069,     25:  491 

624.  A  condition  in  a  free  pass,  that  the 
passenger  will  assume  all  risks  of  personal 
injury,  is  not  against  public  policy.  Id. 

625.  An  agreement  by  one  who  accepts 
a  railroad  pass  purely  as  a  gratuity,  that 
he  will  assume  all  risks  of  accident  of  every 
name  and  nature,  is  not  against  public 
policy,  and  will  prevent  a  recovery  by  him 
for  injuries  occasioned  by  the  negligence 
of  the  railroad  company's  servants.  Quim- 
by  V.  Boston  &  M.  R.  Co.  150  Mass.  365, 
22  N.  E.  205,  5:  846 

626.  A  stipulation  in  a  pass  releasing 
the  carrier  from  liability  for  negligent  in- 
juries to  one  riding  thereon  is  valid.  Payne 
V.  Terre  Haute  &  I.  R.  Co.  157  Ind.  616,  62 
N.  E.  472,  56:  472 

627.  In  Wisconsin,  stipulations  in  a  drov- 
er's pass  exempting  tne  carrier  from  liabil- 
ity for  accidents  are  void.  Davis  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.  93  Wis.  470,  67 
N.  W.   16,  33:  654 

628.  A  contract  by  a  person  in  charge  of 
cattle  on  a  railroad  train,  by  which,  in  con- 
sideration of  a  free  pass,  he  agrees  to  be 
regarded  as  an  employee  of  the  road,  to 
whom  the  company  shall  be  liable  only  as 
to  its  regular  employees,  is  a  pretense — a 
subterfuge — which  cannot  change  the  true 
relation  of  the  narties.  Missouri  P.  R.  Co. 
V.  Ivey,  71  Tex.  409,  9  S.  W.  346,         1:  500 

629.  Conditions  indorsed  on  an  em- 
ployee's pass,  to  the  effect  that  he  assumes 
all  risks  arising  from  the  negligence  of 
agents  of  the  carrier,  or  otherwise,  while 
using  it,  are  invalid  on  grounds  of  pub- 
lic policy,  where  he  is  riding,  not  in  the 
course  of  his  employment  or  in  going  to 
or  from  his  work,  but  in  making  a  trip 
for  his  own  convenience,  and  the  pass  is 
given  him,  not  as  a  gratuity,  but  in  pur- 
suance of  an  agreement  in  his  contract  of 
employment  that  he  shall  have  such  free 
transportation,  and  is  therefore  based  on 
a  valuable  consideration.  Whitney  v.  New 
York,  N.  H.  &  H.  R.  Co.  43  C.  C.  A.  19, 
102  Fed.  850,  60:  615 
Passenger  not  signing  agreement  in. 

See  also  supra,   158. 

630.  The  failure  of  a  passenger  to  sign 
an   agreement  on  the  back   of  a  free  rail- 


road pass,  which  expressly  declares  that  it 
is  given  to  him  "provided  he  signs  the 
agreement,"  is  immaterial  where  he  accepts 
and  uses  the  pass.  Quimby  v.  Boston  &  AL 
R.  Co.  150  Mass.  365,  23  N.  E.  205,  5:  84ft 

d.  Extra  Fare. 

Effect  of  Purpose  to  Make  Test  Case  on 
Right  of  Action,  see  Action  or  Suit, 
52. 

See  also  supra,  77,  369-373,  386-390. 

For  Editorial   Notes,    see   infra,   IV.    §    18, 

631.  A  regulation  of  a  railroad  com- 
pany wnich  is  ancient  and  public,  requir- 
ing passengers  without  tickets  to  pay  an 
extra  fare,  is  presumed  to  be  the  act  of 
the  corporation;  and  a  party  ejected  for 
noncompliance  has  no  right  to  question 
the  fact  or  the  method  of  its  adoption. 
McGowen  v.  Morgan's  u.  &  T.  R.  &  S.  Co. 
41  La.  Ann.  732,  6  So.  606,  5:  817 

632.  Railroad  companies  have  the  right 
to  adopt  reasonable  regulations  as  to  the 
method  of  paying  fares  by  passengers,  and 
may  discriminate  between  fares  paid  for 
tickets  at  stations  and  those  paid  in  the 
cars.  Id. 

Reese  v.  Pennsylvania  R.  Co.  131  Pa.  422, 
19  Atl.   72.  6:  529 

633.  A  regulation  that  a  railroad  pas- 
senger who  fails  to  purchase  a  ticket 
must  pay  10  cents  more  than  the  regular 
fare,  for  which  extra  charge  a  check  will 
be  given  by  the  conductor,  which  will  be 
cashed  at  any  ticket  office,  is  not  unrea- 
sonable. Reese  v.  Pennsylvania  R.  Co.  131 
Pa.   422,    19   Atl.   72,  6:  529 

634.  An  extra  demand  of  10  cents  from  a 
passenger  without  a  ticket,  which  will  be 
refunded  at  any  regular  ticket  office  on 
presenting  a  check  given  him  by  the  con- 
ductor, is  not  a  part  of  the  "fare  or  charge 
for  transportation,"  within  the  meaning  of 
a  statute  fixing  the  maximum  rate  of  fare. 

Id. 

635.  A  regulation  of  a  railroad  company 
requiring  passengers  without  tickets  to  pay 
25  cents  extra  is  not  unreasonable.  Mc- 
Gowen V.  Morgan's  L.  &  T.  R.  &  S.  Co. 
41  La.  Ann.  732,  6  iSo.  606,  5:  817 

636.  Exempting  passengers  who  board 
the  train  at  stations  where  tickets  are 
not  on  sale,  from  a  regulation  requiring 
passengers  without  tickets  to  pay,  25  cents 
extra,  is  not  an  unjust  discrimination 
against  other  passengers.  Id. 

637.  That  a  railroad  company  gives  a 
drawback  coupon  for  the  extra  fare,  on 
which  a  passenger  may  collect  it  back  from 
any  agent  at  a  station,  does  not  affect  the 
validity  of  a  regulation  requiring  pas- 
sengers without  tickets  to  pay  an  extra 
fare.  Id. 
What  excuses  failure  to  have  ticket. 

638.  A  higher  rate  of  fare  can  be  de- 
manded of  a  passenger  who  has  no  ticket, 
only  when  the  failure  to  procure  a  ticket 
is  not  due  to  the  nonattendance  of  the 
ticket  agent,  or  some  other  fault  or  de- 
fault of  the  carrier.    Georgia  Southern  &  F. 


CARRIER-,  II.    a,  10. 


388 


R.    Co,    V.    Asmore,    88   Ga.    529,    15    S.    E. 
13,  16:  53 

639.  The  insertion,  in  a  section  of  a 
gtatute  giving  a  railroad  company  the 
right  to  charge  additional  fare  on  the  train, 
of  the  clause,  "provided  railroads  shall  be 
required  to  keep  their  ticket  offices  open," 
a  certain  time  before  departure  of  trains, 
does  not  limit  its  effect  merely  to  the  ques- 
tion of  the  extra  fare,  but  will  preclude 
the  enforcement  of  a  rule  requiring  the  pos- 
session of  tickets  as  a  condition  to  enter- 
ing trains,  unless  the  proviso  is  complied 
with.  Mills  V.  Missouri.  K.  &  T.  R.  Co. 
84  Tex.  242,  59  S.  W.  874,  55:  497 

640.  One  who  boards  a  train  without  a 
ticket  because  the  ticket  office  is  not  open 
for  the  sale  of  tickets  as  required  by  stat- 
ute cannot  refuse  to  pay  the  extra  train 
fare  required  of  passengers  without  tickets, 
and  resist  ejection  on  tender  or«  the  price 
of  the  ticket,  but  must  pay  the  additional 
fare  and  resort  to  his  legal  remedy  to  re- 
cover it  and  the  statutory  penalty  for  fail- 
ure to  have  the  office  open.  Monnier  v. 
New  York  C.  &  H.  R.  R.  Co.  175  N.  Y.  281, 
67  N.  E.  569,  62:  357 

641.  A  passenger  having  a  ticket  to  a 
station  where  there  is  no  ticket  office 
cannot  be  charged  an  extra  fare  imposed 
upon  passengers  having  no  tickets,  upon 
his  determining  while  on  the  train  to  go 
to  a  station  beyond  that  for  which  his 
ticket  calls,  although  provision  is  made 
for  its  subsequent  return  to  him;  and  his 
failure  to  pay  such  additional  charge  is  no 
legal  justification  for  expelling  him  from 
the  train.  Phettiplace  v.  Northern  P.  R. 
Co.  84  Wis.  412,  54  N.  W.  1092,        20:  483 

«.  On  Street  Cars. 

Governmental    Regulation    of    Rates,     see 

infra,  1081-1091. 
Requirement    as    to    Keeping    Tickets    for 

Sale,  see   Municipal  Corporations,  243, 

273. 
Passenger's    Right    of   Action    on    Contract 

with    Town    as   to   Rate   of   Fare,    see 

Parties,  73. 
Mode  of  Collecting  Fare  During  Receiver- 
ship, see  Receivers,  55. 
Special    Legislation    as    to,    see    Statutes, 

302,  303. 
Rates  of  Fare  of  Leased  Road,  see  Street 

Railways,  54-57. 
Question  for  Jury  as  to  Reasonableness  of 

Tender,  see  Trial,  133. 
See  also  supra,  622. 
For  Editorial  Notes,  see  infra,  IV.  §  5. 

642.  A  person  on  a  street  car  does  not 
acquire  the  right  to  be  carried  to  his 
destination  by  the  fact  that  the  conductor 
rings  up  his  fare  on  taking  from  him  a 
void  coupon  ticket.  United  Railways  & 
Electric  Co.  v.  Hardesty,  94  Md.  661,  51 
Atl.  406,  57:275 

C)i'^.  The  mere  starting  of  a  car  upon 
its  journey,  by  the  conductor,  with  knowl- 
edge that  a  person  has  boarded  the  car 
without  the  station,  after  paying  fare  with- 


in the  station,  is  not  an  acceptance  of 
such  person  as  a  passenger,  or  a  waiver 
of  a  rule  of  the  street  railway  company 
requiring  passengers  to  pay  fare  and  board 
cars  within  the  station,  and  compelling  one 
who  has  boarded  a  car  without  the  station 
to  pay  a  fare,  although  he  has  already 
paid  his  fare  on  entering  the  station.  Nash- 
ville Street  R.  Co.  v.  Griffin,  104  Tenn. 
81,  57  S.  W.  153,  49:  451 

Change. 
For  Editorial  Notes,  see  infra,  IV.  §   18. 

644.  A  passenger  on  a  street  car  need 
not  tender  the  exact  fare,  but  must  tender 
a  reasonable  sum,  and  the  carrier  must 
furnish  change  to  a  reasonable  amount. 
Barrett  v.  Market  Street  Cable  R.  Co. 
81  Cal.  296,  22  Pac.  859,  6:336 

645.  A  passenger  on  a  street  car  is  not 
bound  to  tender  tlje  exact  fare,  but  the 
conductor  is  bound  to  furnish  change  for 
a  reasonable  sum.  Barker  v.  Central  Park, 
N.  &  E.  R.  R.  Co.  151  N.  Y.  237,  45  N.  E. 
550,  35:  489 

646.  Notice  need  not  be  brought  home  to 
a  street  car  passenger,  of  a  rule  reasonably 
limiting  the  amount  of  change  which  a  con- 
ductor is  required  to  furnish,  in  order  to 
make  the  rule  operative.  Id. 

647.  The  duty  to  receive  from  a  passen- 
ger a  coin  or  bill  in  excess  of  the  fare  due 
and  return  the  change  in  a  respectful  man- 
ner is  part  of  the  contract  obligation  of 
a  street  car  company  so  long  as  the  amount 
tendered  is  not  in  excess  of  the  reasonable 
amount  which  may  be  tendered  under  the 
rules  and  regulations  of  the  company.  Gil- 
lespie V.  Brooklyn  Heights  R.  Co.  178  N.  Y. 
347,    70   N.    E.    857,  66:  618 

648.  A  rule  requiring  change  to  the 
amount  of  $2  to  be  furnished  by  conduct- 
ors on  street  cars  to  passengers  is  a  rea- 
sonable provision  for  the  convenience  of  the 
public;  and  the  conductor  cannot  be  re- 
quired to  furnish  change  for  a  five-dollar 
bill.  Barker  v.  Central  Park,  N.  &  E.  R. 
R.  Co.  151  N.  Y.  237,  45  N.  E.  550,      35:  489 

649.  Five  dollars  is  not  an  unreasonable 
amount  for  a  passenger  in  a  street  car  ta 
tender  in  payment  of  his  fare.  Barrett  v. 
Market  Street  Cable  R.  Co.  81  Cal.  296,  22^ 
Pac.  859,  6:  336 
Transfers. 

Conflict    of    Laws    as    to,    see    Conflict    of 

Laws,  93. 
Conductor's   Trip   Report    as    Evidence,   see 

Evidence,  1006. 
Ordinance   as  to   Sale   or   Giving   Away   of, 

see  Municipal  Corporations,  244-246. 
See  also  supra,  374-376. 

650.  A  transfer  ticket  issued  to  a  street 
railway  passenger,  by  which  the  route  is 
designated  so  generally  as  to  be  applica- 
ble to  several  lines,  entitles  him  to  be 
transported  over  either.  Pine  v.  St.  Paul 
City  R.  Co.  50  Minn.  144,  52  N.  W.  392, 

16:  347 

651.  A  restriction  that  a  street  railway 
transfer  ticket  given  without  extra  charge 
must  be  used  within  fifteen  minutes  after 
it  is  punched  on' the  first  line  is  not  unrea- 
sonable  or   invalid  in  the   absence  of  any 


384 


CAURIERS.  II.   a,  10. 


contract  to  carry  a  passenger  on  both  lines 
for  a  single  fare,  without  exception  or 
conditions  or  any  provision  to  that  effect 
in  the  charter  or  ordinance,  or  of  any  hold- 
ing out  to  the  public  to  this  effect;  al- 
though this  might  be  subject  to  exception 
if  no  car  came  along  within  the  time  limit- 
ed. Heffron  v.  Detroit  City  R.  Co.  92 
Mich.  406,  52  K  W.  802,  16:  345 

652.  The  mistake  of  a  street-car  conduct- 
or in  punching  a  transfer  ticket  so  as 
wrongly  to  indicate  the  hour  of  its  issu- 
ance, making  it  appear  that  the  passenger, 
after  he  has  diligently  sought  and  promptly 
entered  the  first  passenger  car,  has  no 
right  to  ride  thereon,  will  not  defeat  his 
right  of  passage,  when  he  has  taken  the 
ticket,  believing  it  is  all  that  it  should  be, 
and  makes  a  fair  and  reasonable  statement 
of  the  facts.  O'Rouke  v.  Citizens'  Street 
R.  Co.  103  Tenn.  124,  52  S.  W,  872,  46:  614 

653.  A  condition  printed  on  a  street  rail- 
way transfer  check,  that  the  passenger 
will  examine  date,  time,  and  direction,  and 
see  that  they  are  correct,  is  void  for  un- 
reasonat)leness, — especially  when  these  mat- 
ters are  so  complex  that  an  inexperi- 
enced passenger  could  not  examine  them 
and  see  that  they  are  correct  within  the 
time  at  disposal  and  without  an  explana- 
tion. Id. 

654.  A  condition  on  a  transfer  check, 
that  the  passenger  agrees  to  pay  the  regu- 
lar fare  charged,  in  case  of  controversy 
with  the  conductor  about  the  check  and 
its  refusal,  and  then  apply  at  the  office  of 
the  company  for  reimbursement, — is  void 
because  unreasonable.  Id. 

f.  Limitation  of  Liability. 
• 
Limitation    as    to    Time    of    Using    Ticket, 

see  supra,  586,  58/ . 
In  Passes,   see  supra,  622-629. 
As  to  Baggage,  see  infra,  II.  a,  12,  e. 
As  to  Freight,  see  infra,  II.  b,  7. 
Validity  of  Contract   Indeninifymg  Carrier, 

see  Contracts,  409.    . 
Insurance  of  Carrier   against   Liability,   see 

Insurance,   1355-1357. 
Of  Vessel  Owner,  see  Shipping,  5. 
See  also  supra,  588,  589. 
For    Editorial   Notes,    see   infra,   IV.    §§    6, 

18. 

655.  A  carrier  of  passengers  is  not  a  com- 
mon carrier  within  the  meaning  of  Ga.  Civ. 
Code,  S  2276,  providing  that  common  car- 
riers cannot  limit  their  legal  liability  by 
notice,  but  may  make  an  expres.s  con- 
tract and  be  governed  thereby.  Central 
of  Georgia  R.  Co.  v.  Lippman,  110  Ga. 
C05,   36   S.   F.   202,  50:  673 

656.  A  carrier  cannot  contract  for  relief 
from  liability  for  injuries  to  a  passenger 
pjiving  fare,  caused  bv  its  own  negligence. 
Illinois  C.  R.  Co.  v.  ijeebe,  174  III.  13,  50 
N.    E.    1019,  43:  210 

657.  A  carrier  of  passengers  cannot  con- 
tract against  liability  for  negligence,  or  to 
limit  its  obligation  to  use  extraordinary 
diligence    for    the    protection    of    the    pas- 


senger.    Central  of  Georgia  R.  Co.  v.  Lipp- 
iuan,  110  Ga.  665,  36  S.  E.  202,  50:  673 

658.  By  the  law  of  South  Dakota,  a  com- 
mon carrier  of  property  or  passengers  may 
limit  its  liability  by  an  express  contract 
signed  by  the  parties,  except  as  to  gross 
negligence,  fraud,  or  wilful  wrong  of  such 
carrier  or  its  servants.  Meuer  v.  Chicago, 
M.  &  St.  P.  R.  Co.  5  S.  D.  568,  59  X.  W. 
945,  25:  81 

659.  The  one  of  several  transportation 
companies  acting  as  a  through  line,  which 
sells  a  ticket  upon  condition  that  it  shall 
not  be  responsible  beyond  its  own  line, 
will  not  be  liable  for  injuries  caused  by 
breach  of  the  contract  by  another  one  of 
the  companies-^a  steamboat  company — in 
refusing  to  furnish  the  passenger  with  a 
berth.  McWethy  v.  Detroit,  G.  R.  &  W. 
R.  Co.   127  Mich.   333,  86  N.  W.   827, 

55:  306 
Holder  of  excursion  or  mileage  ticket. 

660.  To  hold  the  carrier  responsible  for 
an  injury  received  by  aC  passenger  while 
using  an  excursion  ticket,  one  of  the  condi- 
tions on  which  is  that  the  passenger  as- 
sumes all  risk  of  accident,  he  must  show 
affirmatively  that  the  carrier  was  guilty  of 
negligence  which  caused  the  injury.  Crarv 
V.  Lehigh  Valley  R.  Co.  203  Pa,  525,  53 
Atl.  363,  59:  815 

661.  An  agreement  by  a  passenger  when 
procuring  a  mileage  ticket  at  a  reduced 
rate,  not  to  hold  the  carrier  liable  for  in- 
juries received  while  riding  on  freight 
trains,  is  unenforceable  with  respect  to 
such  freight  trains  as  are  designated  by 
the  carrier  to  carry  passengers  generally. 
Richmond  v.  Southern  Pacific  Co.  41  Or. 
54,  67  Pac.  947,  57:  616 
Porter  of  sleeping  car. 

662.  A  railroad  company  hauling  a  sleep- 
ing car  may  take  advantage  of  a  contract 
by  which  the  porter  in  charge  of  it  con- 
tracts with  the  sleeping-car  company  to 
waive  his  right  of  action  for  injuries  caused 
by  the  negligence  of  the  railroad  com- 
panies by  which  the  car  is  hauled.  Rus- 
sell V,  Pittsburgh,  C.  C.  &  St.  L.  R.  Co. 
157  Ind.  305,  61  N.  E.  678,  55:  253 

663.  Public  policy  does  not  forbid  a  con- 
tract by  a  porter  placed  in  charge  of  a 
sleeping  car  to  waive  his  right  of  action 
for  injuries  caused  by  the  negligence  of 
any  railroad  company  by  which  the  car  is 
hauled,  or  its  servants.  Id. 
Express  messengers. 

See  also  supra,  47,  49. 

664.  A  railroad  company  cannot  enforce 
a  contract  between  a  messenger  and  an  ex- 
press company,  that  the  railroad  company 
will  not  be  held  liable  for  accidental  in- 
juries to  the  messenger,  of  the  making  of 
which  the  railroad  company  has  no  knowl- 
edge. Louisville,  N.  A.  &  C.  R.  Co.  v. 
Keefer,   146  Ind.  21,  44  N.  E.   796,       38:  93 

065.  A  contract  by  an  express  company 
authorized  by  a  messenger  in  its  employ, 
that  in  consideration  that  the  express  com- 
pany be  permitted  to  do  business  on  a 
railroad,   the   railroad   company   will   be   ex- 


CARRIERS,  II.  a.  11,  120. 


885 


empted  from  all  liability  for  injuries  to  the 
messenger,  is  binding  on  the  messenger, 
since  the  railroad  company  in  making  it 
acts  not  as  a  public,  but  as  a  private,  car- 
rier. Id. 
Passenger  on  freight  train. 

666.  A  passenger  on  a  freight  train  is 
entitled  to  the  protection  of  the  rule  which 
prohibits  a  carrier  from  contracting  against 
liability  for  failure  to  exercise  extraor- 
dinary diligence  to  protect  the  passenger, 
although  the  passenger  takes  the  risk  of 
the  usual  and  necessary  jolts  and  jars  in- 
cident" to  the  running  of  such  train.  Cen- 
tral of  Georgia  R.  Co.  v.  Lippman,  110  Ga. 
665,  36  S.  E.  202,  50:  673 
Shipper  of  stock. 

See  also   supra,  627,  628. 

667.  A  shipper  while  unloading  his  stock 
is  within  an  exemption  clause  erf  the  con- 
tract of  transportation,  by  which  he  as- 
sumes the  risk  of  personal  injury,  though 
the  car  has  arrived  at  its  destination,  and 
the  shipper  has  left  the  car  for  a  short 
time,  prior  to  the  injury,  and  proceeded 
to  a  hotel,  to  get  lanterns  and  assistants  to 
aid  him  in  unloading  the  car.  Meuer  v. 
Chicago,  M.  &  St.  P.  R.  Co.  5  S.  D.  568,  59 
N.   W.   945,  25:  81 

668.  A  special  contract  for  transporting 
a  car  load  of  live  stock  and  emigrant 
movables,  in  which  it  is  stipulated  that 
the  shipper  shall  be  entitled  to  passage 
upon  the  same  train  to  care  for,  feed,  and 
water  his  stock,  and  load  and  unload  the 
same,  at  his  "own  risk  of  personal  injury 
from  whatever  cause," — exonerates  the 
railroad  company  from  all  liability  for  any 
injury  to  him  while  a  passenger,  not  caused 
by  the  gross  negligence,  fraud,  or  wilful 
•wrong  of  the  company  or  its  servants.    Id. 

11.  Blackboard  Announcements  as  to 
Trains. 

CJlass  Legislation  as  to,  see  Constitutional 
Law,  419. 

669.  A  statute  providing  that  a  "cor- 
poration, company,  or  person,"  operating 
a,  railroad,  shall  place  in  the  passenger 
deppt  of  such  "company"  a  blackboard  up- 
on which  such  "company  or  person"  shall 
cause  to  be  written  the  fact  as  to  whether 
trains  are  on  time,  is  clearly  intended  to 
apply  to  corporations,  as  well  as  natural 
persons,  although  the  word  "corporation" 
is  not  repeated  in  each  clause.  State  v.  In- 
diana &  L  S.  R.  Co.  133  Ind.  69,  32  N.  E. 
817,  18:  502 

670.  The  words  "each  passenger  depot 
.  .  .  located  at  any  station  ...  at 
which  there  is  a  telegraph  office,"  at  which 
a  railroad  company  is  required  by  Ind.  act 
1889  to  provide  a  blackboard  on  which  shall 
be  stated  whether  a  train  is  on  time  or 
not,  do  not  mean  merely  the  station  house 
for  passengers,  but  include  every  station 
where  a  train  stops,  if  there  is  a  telegraph 
office  at  such  point  at  which  information 
is  received  as  to  the  arrival  of  trains  at 
such  stopping  place.  Id. 

L.R.A.  Dig,— 25. 


Penalty  for  violation  of  statute  as  to. 

671.  The  penalty  for  failure  to  report 
on  a  blackboard  the  time  of  the  arrival  of 
trains,  provided  by  Ind.  act  1889,  §  2,  can- 
not be  avoided  by  the  failure  to  provide 
a  blackboard,  which  is  expressly  required 
to  be  done  by  §  1  of  the  act.  State  v.  In- 
diana &  L  S,  R.  Co.  133  Ind.  69,  32  N.  E. 
817,  18:  502 

672.  More  than  one  penalty  can  be  in- 
curred by  violating  the  Indiana  act  of  1889 
which  requires  a  report  at  each  railroad 
station  at  which  there  is  a  telegraph  of- 
fice as  to  whether  trains  are  on  time,  and 
provides  that  "for  each  violation"  in  failing 
to  report  or  making  a  false  report  a  penal- 
ty may  be  recovered;  but  there  can  be 
only  one  forfeiture  as  to  one  train  at  any 
particular  station  on  the  same  trip.       Id. 

12.  Baggage  or  Property  of  Passenger, 
o.  In  General. 

Rules  and  Regulations  as  to,  see  supra, 
39^1. 

Grant  of  Exclusive  Privilege  as  to  Solicita- 
tion of,  see  infra,  1045-1067. 

What  is  an  Act  of  God  Releasing  Carrier 
from   Liability   for,   see   Act   of   God. 

Action  by  Husband  for  Wife's  Baggage,  see 
Husband   and   Wife,    197,    198. 

Right  of  Traveling  Salesman  to  Sue  for 
Injury  to,  see  Parties,   103. 

Instructions  as  to,  see  Trial,  784. 

For  Editorial  Notes,  see  intra,  IV.  §§  28, 
30. 

673.  Carriers  are  the  insurers  of  bag- 
gage in  the  same  manner  and  to  the  same 
extent  as  of  goods  or  freight.  Oakes  v. 
Northern  P.  R.  Co.  20  Or.  392,  26  Pac.  230, 

12:  318 

674.  Carriers  of  passengers  are  responsi- 
ble for  the  carriage  and  safe  delivery  of 
such  baggage  as  by  custom  and  usage  is 
ordinarily  carried  by  travelers;  and  the 
payment  of  the  usual  fare  includes,  in 
legal  contemplation,  a  compensation  for  the 
conveyance  of  such  baggage.  Id. 

675.  One  who  purchases  a  railroad  ticket 
for  the  sole  purpose  of  checking  his  bag- 
gage on  it,  with  the  intention  of  going 
to  his  destination  in  his  private  convey- 
ance, can  hold  the  carrier  liable  only  as 
a  gratuitous  bailee  of  the  baggage,  and 
cannot  recover  in  case  it  is  stolen  from 
the  baggage  room,  unlcos  the  carrier  is 
guilty  of  gross  negligence,  Marshall  v. 
Pontiac,  O.  &  N.  R.  Co.  126  Mich.  45,  85  N. 
W.   242,  55:  650 

676.  A  passenger  on  a  steamboat,  -who 
takes  a  stop-over  check  at  an  intermediate 
point,  permitting  her  baggage  to  remain  on 
board,  on  the  porter's  assurance  that  it  will 
be  all  right,  and  who  follows  it  on  another 
steamer  several  days  after,  cannot  recover 
for  its  loss,  in  the  mean  time,  by  the  burn- 
ing, without  fault,  of  a  warehouse  be- 
longing to  the  local  agents  of  the  carrier, 
in  which  the  baggage  was  placed  at  the 
point  of  destination,  subject  to  delivery  on 


CARRIERS,  II.  a,  12. 


presentation  of  the  check.    Laffey  v.  Grum- 
mond,  74  Mich.   186,  41  N.  W.  894,     3:287 

677.  A  carrier  is  responsible  where  prop- 
erty committed  to  it  is  brought  by  its  neg- 
li^encp  under  the  operation  of  natural 
causes  that  work  its  destruction,  or  is 
exposed  to  such  cause  of  loss.  Wald  v. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  162  111. 
545,  44  N.  E.  888,  35:  356 

678.  A  common  carrier  is  not  exempt 
from  liability  for  a  loss  which  takes  place 
because  of  an  act  of  God  if  the  carrier 
has  been  guilty  of  any  previous  negligence 
or  misconduct  which  brings  the  property 
in  contact  with  the  destructive  force  of 
the  actus  Dei,  or  unnecessarily  exposes  it 
thereto.  Id. 
Express  companies. 

679.  An  express  company  which  under- 
takes to  execute  a  commission  to  go  to 
the  baggage  room  of  a  hotel  and  obtain 
and  ship  articles  *  belonging  to  its  patron 
is  liable  for  the  loss  in  case  articles  be- 
longing to  a  stranger  are  taken  by  mis- 
take, and  shipped  so  that  they  cannot  be 
recovered  and  restored  to  him.  Edwards 
V.  American  Express  Co.  121  Iowa,  744,  96 
N.  W.  740,  63:  467 
Baggage  transfer  company. 

For  Editorial  Notes,  see  infra,  IV.  §  33. 

680.  The  contract  of  a  baggage  transfer 
compai>y  to  transport  baggage  from  a  resi- 
dence to  a  railroad  depot  is  fully  performed 
so  that  its  responsibility  ceases  when  the 
baggage  is  delivered  to  the  agent  of  the 
railroad  company  at  the  depot.  Anniston 
Transfer  Co.  v.  Gurley,  107  Ala.  600,  18 
So.  209,  34:  137 
In  steamer  stateroom. 

681.  Theft  of  money  from  the  clothing 
of  a  steamer  passenger  during  the  night 
while  he  is  occupying  a  stateroom  with  the 
door  locked  and  windows  fastened  renders 
the  carrier  liable  for  the  loss  as  an  in- 
surer and  without  any  proof  of  negligence, 
if  the  sum  lost  was  reasonable  and  proper 
for  the  passenger  to  carry  on  his  person  to 
defray  the  expenses  of  his  journey.  Adams 
V.  New  Jersey  Steamboat  Co.  151  N.  Y.  163, 
45  N.  E.  369,  34:  682 
Liability  &f  connecting  line. 

682.  The  checking  of  baggage  to  destina- 
tion upon  a  through  ticket  to  transport 
the  passenger  over  roads  of  initial  and 
connecting  carriers  will  render  the  initial 
carrier  liable  for  its  loss  on  a  connecting 
line.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Washington,  74  Ark.  9,  85  S.  W.  406, 

69:65 
Dogs. 

*  683.  The  loss  of  a  dog  by  negligence  of 
a  baggage  master  will  render  the  carrier 
liable,  although  a  rule  of  the  company 
provided  that  it  would  not  be  responsible 
for  dogs,  where  the  owner  was  not  noti- 
fied of  such  rule  or  •f  the  company's  re- 
fusal to  be  responsible,  but  put  the  dog 
in  the  baggage  car  under  instructions  of 
the  conductor.  Kansas  City,  M.  &  B.  R. 
Co.  v.  Iligdon,  94  Ala.  286,  10  So.  282, 

14:  515 
Trunks  sent  over  wrong  road. 

684.  A  railroad   company   receiving  from 


another  carrier  and  transporting  trunks 
under  the  mistaken  supposition,  induced 
by  checks  on  the  trunks,  that  they  be- 
long to  passengers  who  have  bought  tickets 
over  its  road  when  in  fact  the  owners  of 
the  trunks  traveled  by  another  route  and 
supposed  their  trunks  were  properly 
checked,  is  not  liable,  on  the  ground  of 
mere  negligence,  for  the  loss  of  the  trunks 
by  the  fall  of  a  railroad  bridge.  Beers  v. 
Boston  &  A.  R.  Co.  67  Conn.  417,  34  Atl. 
541,  32:535 

Requiring  proof  that  articles  in  trunk  are 
baggage. 

685.  A  carrier  may  require  a  passenger 
who  has  been  in  the  habit  of  carrying  in 
his  trunk  articles  of  merchandise  contrary 
to  its  regulations  to  furnish  satisfactory 
proof  of  its  contents,  and  decline  to  checK 
the  trunk  upon  his  refusal.  Morfolk  &  W. 
R.  Co.  V.  Irvine,  85  Va.  217,  7  S.  E.  233. 

1:  llO 

686.  A  regulation  of  a  carrier  requiring 
a  passenger  whom  it  suspects  of  carrying 
articles  of  merchandise  in  his  trunk, 
against  its  regulations,  to  sign  a  certifi- 
cate that  the  trunk  contains  nothing  but 
wearing  apparel,  is  a  reasonable  regulation. 

Id. 
Delay  of  baggage. 

687.  Unnecessary  delay  of '  a  carrier, 
which  subjects  the  goods  in  its  possession 
to  a  loss  by  an  act  of  God  which  they 
would  not  otherwise  have  met  with,  is  of 
itself  such  negligence  as  will  make  the 
carrier  liable  for  the  loss.  Wald  v.  Pitts- 
burg, C.  C.  &  St.  L.  R.  Co.  162  111.  545,  44 
N.  E.  888,  35:  356 

688.  A  carrier  which,  without  sufficient 
reason,  fails  to  ship  the  trunk  of  a  pas- 
senger upon  a  limited  train,  upon  the  same 
train,  because  of  its  negligence  in  omit- 
ting to  place  the  proper  tag  upon  such 
trunk,  but  ships  it  upon  a  later  train  which 
comes  in  contact  with  a  flood  in  itself  an 
act  of  God,  by  reason  of  which  the  bag- 
gage  is   destroyed, — is   liable   for  the   loss. 

Id. 

689.  There  is  an  implied  undertaking  on 
the  part  of  a  railway  company  when  a 
passenger  buys  his  ticket  for  passage  upon 
a  limited  express  train,  and  applies  to  have 
his  baggage  checked,  that  the  baggage  shall 
go  upon  the  same  train  on  which  he  takes 
passage,  unless  he  gives  some  direction, 
does  something,  or  omits  to  do  something 
which  authorizes  the  carrier  to  send  the 
baggage  by  another  train.  Id. 
Leaving  baggage  at  station  before  time  for 

train. 

690.  A  carrier  may  be  charged  as  in- 
surer for  baggage  delivered  at  the  station 
before  the  starting  of  a  train,  only  when 
it  is  delivered  within  the  time  reasonably 
necessary  for  obtaining  the  ticket,  check- 
ing the  baggage,  etc.  Goldberg  v.  Ahnapee 
&  \V.  R.  Co.  105  Wis.  1,  80  N.  W.  920, 

47:  221 

691.  A  rule  that  baggage  will  not  be 
checked  more  than  thirty  minutes  before 
train  time  cannot  be  held  unreasonable  as 
matter   of   law,   nor   can    it   be   thus    held 


CAHRIERS,  II.  II,  12. 


387 


to  be  reasonable  to   leave  baggage  in  tbe 
evening  for  a  train  at  six  in  the  morning. 

Id. 
When  liability  for  ceases. 
For  Editorial  Notes,  see  infra,  IV.  §  28. 

692.  The  responsibility  of  a  railroad 
company  fof  baggage  as  a  carrier  after  it 
reaches  the  destination  of  the  passenger 
continues  only  until  he  has  had  a  reason- 
able time  and  opportunity  to  take  it  away. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Mc- 
Gahey,  63  Ark.  344,  38  S.  W.  659,     36:  781 

693.  A  passenger  who  leaves  his  bag- 
gage on  a  depot  platform  merely  because 
on  his  arrival,  after  11  o'clock  at  night, 
there  are  no  conveyances  running  by  which 
he  can  take  it  away,  cannot  hold  the  rail- 
road company  liable  as  a  common  carrier, 
but  only  as  a  warehouseman  if  the  bag- 
gage is  burned  in  the  depot  during  the 
night.  'n  Id. 

6.  What  is  Baggage. 

See    also    infra,    710,    726,    727. 

For  Editorial  Notes,  see  infra,  IV.  §  28. 

694.  Only  what  a  passenger  takes  with 
him  for  his  own  personal  use  and  con- 
venience is  within  the  meaning  of  a  stat- 
ute requiring  carriers  to  check  baggage. 
Illinois  C.  R.  Co.  v.  Matthews,  114  Kv. 
973,  72  S.  W.  302,  60:  846 

695.  Articles  which  are  not  properly  per- 
sonal baggage,  but  which  are  taken  by  the 
passenger  as  such  with  the  carrier's  knowl- 
edge, either  with  or  without  payment  of  an 
extra  charge,  will  be  regarded  as  such  in 
respect  to  the  carrier's  liability.  Oakes 
v.  Northern  P.  R.  Co.  20  Or.  392,  26  Pac. 
230,  12:  318 

696.  A  carrier  receiving  as  baggage 
trunks  and  boxes  which  contain  more  than 
ordinary  baggage,  of  which  fact  it  has  no- 
tice, is  estopped  from  denying  its  responsi- 
bility for  them  as  baggage.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.  v.  McGahey,  63  Ark.  344, 
38   S.    W.    659,  36:  781 

697.  Notice  to  the  carrier  that  a  package 
delivered  to  it  for  transportation  as  bag- 
gage contains  articles  which  are  not  such 
is  not  imputed  by  the  fact  that  the  pas- 
senger pays  a  charge  for  excessive  weight. 
Illinois  C.  R.  Co.  v.  Matthews,  114  Ky. 
973,  72   S.  W.   302,  60:  846 

698.  One  engaged  in  the  business  of 
transporting  baggage  is  liable  for  the  value 
of  articles  necessary  for  use  in  travel,  con- 
tained in  a  valise  which  has  been  delivered 
to  his  agent  for  transportation,  and  has 
been  lost  solely  through  such  agent's  neg- 
ligence, notwithstanding  He  had  posted 
notices  that  he  would  not  be  responsible 
for  valises,  and  had  instructed  his  agents 
not  to  receive  them,  where  the  owner  of 
the  valise  was  ignorant  of  those  facts. 
Staub  V.  Kendnck,  121  Ind.  226,  23  N.  E. 
79,  6:  619 
Merchandise. 

For  Editorial  Notes,  see  infra,  IV.  §  28. 

699.  A  carrier  may  assume  liability  for 
merchandise  delivered  to  it  by  a  passen- 
ger, equal  to  that  which  is  imposed  upon 


it  in  case  of  baggage,  by  accepting  it  for 
transportation  as  baggage,  with  knowledge 
of  its  character.  Illinois  C.  R.  Co.  v. 
Matthews,  114  Ky.  973,  72  S.  W.  302, 

60:  846 

700.  Samples  of  merchandise  carried  by  a 
traveling  salesman  do  not  constitute  bag- 
gage within  the  meaning  of  Ark.  act  of 
April  19,  1895,  regulating  charges  on  excess 
baggage,  but  may  be  charged  for  by  the 
railroad  company  as  freight.  Kansas  City, 
P.  &  G.  R.  Co.  v.  State,  65  Ark.  363,  46  S. 
W.  421.  41:333 

701.  Baggage,  within  the  rule  of  a  car- 
rier's liability,  is  confined  to  articles  us- 
ually carried  as  such  for  the  personal  use 
of  the  passenger,  or  for  his  convenience, 
instruction,  or  amusement  on  the  journey, 
and  does  not  include  that  which  is  carried 
for  the  purpose  of  business, — such  as  mer- 
chandise or  the  like.  Oakes  v.  Northern 
P.  R.  Co.  20  Or.  392,  26  Pac.  230,  12:  318 
Papers  of  insurance  agent. 

702.  Papers  pertaining  to  the  business 
of  an  insurance  agent  and  belonging  to 
his  employer  are  not  baggage,  and  there- 
fore, in  case  they  are  placed  in.  a  trunk 
which  is  checked  as  baggage,  an  action  can- 
not be  maintained  for  the  benefit  of  the 
employer  for  loss  caused  by  delay  in  their 
transportation.  Yazoo  &  M.  V.  R.  Co.  v. 
Blackmar,  85  Miss.  7,  37  So.  500,  67:646 
Salesman's  catalogue. 

703.  A  catalogue  prepared  by  a  travel- 
ing salesman  at  his  own  expense,  and  which 
was  his  own  individual  property,  and  car- 
ried with  him  as  an  article  convenient  and 
necessary  for  use  in  his  business  while 
traveling,  is  an  article  of  pei'sonal  bag- 
gage for  which  he  may  recover  when  lost, 
with  other  articles  in  a  valise,  by  a  bag- 
jrage-transfer  carrier.  Staub  v.  Kendrick, 
121  Ind.  226,  23  N.  E.  79,  6:  610 
Sample  trunks. 

704.  A  railroad  company  is  liable  for  the 
loss  of  a  sample  trunk  on  a  contract  for 
its  transportation  as  freight,  where  it  was 
checked  without  any  misrepresentation, 
and  without  any  release  of  liability  or  any 
request  therefor,  on  payment  of  a  charge 
for  excess  baggage,  which  was  the  same 
for  sample  trunks  as  for  ordinary  baggage, 
and  the  baggageman  had  constructive  no- 
tice of  the  character  of  the  trunk  from  its 
appearance  and  from  other  circumstances, 
although  there  was  a  rule  of  the  company 
prohibiting  the  cnecking  of  sample  trunks 
without  a  release  of  liability.  Trimble  v. 
New  York  C.  &  H.  R.  R.  Co.  162  N.  Y.  84, 
56  N.  E.  532,  48:  115 
Stage  properties. 

705.  Stage  properties,  costumes,  para- 
phernalia, advertising  matter,  etc.,  are  not 
"baggage"  within  the  rule  of  a  carrier's 
liabililv,  unless  accepted  as  such.  Oakes 
V.  Northern  P.  R.  Co.  20  Or.  392,  26  Pac. 
230,  12:  318 
Jewelry. 

706.  Ladies*  jewelry  is  not  a  proper  ar- 
ticle of  baggage  to  be  carried  in  the  trunk 
of  a  man  traveling  alone,  so  as  to  render 
the  carrier  liable  for  its  value  in  case  of  its 


3?8 


CARRIERS,  n.  a,  12. 


loss, — at  least  when  it  is  placed  in  the 
trunk  simply  for  the  purpose  of  having  it 
transported.  Metz  v.  California  S.  R.  Co. 
85  Cal.  329,  24  Pac.  610,  9:  431 

Money. 

707.  A  carrier  is  liable  for  the  transpor- 
tation as  baggage  of  money  in  an  amount 
more  than  is  needed  for  use  on  the  journey, 
where  the  passenger,  in  ignorance  of  the 
carrier's  rules  and  instructions  to  the  con- 
trary, delivers  it  to  the  baggage  agent  and 
informs  him  of  the  amount,  and  he  ac- 
cepts it  to  ship  as  baggage.  St.  Louis  S. 
W.  R.  Co.  V.  Berry,  60  Ark.  433,  30  S.  W. 
764,  28:  501 

708.  Money  sufficient  for  personal  use  on 
the  journey  may  be  included  in  baggage 
for  which  the  carrier  will  be  liable  as  an 
insurer  if  no  more  is  taken  than  is  neces- 
sary or  usual  for  persons  of  like  station, 
habits,  and  condition  in  life  on  similar 
journeys.  Id. 

c.  Taking  Parcels  on  Train. 

709.  Small  packages  of  merchandise,  the 
use  of  which  is  not  personal  to  the  pas- 
senger in  accomplishing  the  purpose  of  his 
journey,  cannot  be  taken  in  a  passenger 
car  as  part  of  the  baggage  which  he  is 
allowed  to  take  at  common  law.  Runyan 
V.  Central  R.  Co.  (N.  J.  Err.  &  App.) 
61    N.   J.    L.   537,   41    Atl.   367,  43:  284 

710.  The  baggage  which  a  passenger  is 
entitled  to  take  at  common  law  includes 
not  only  wearing  apparel,  but  other  ar- 
ticles, within  reasonable  limit,  for  per- 
sonal use  during  his  journey  and  in  accom- 
plishing its  purposes.  Id. 
Effect  of  custom. 

Sufficiency    of    Proof   of   Custom,   see   Evi- 
dence, 2350. 

711.  A  usage  or  practice  of  passengers 
to  carry  small  packages  of  merchandise 
into  a  car  in  derogation  of  the  common-law 
contract  of  carriage  must,  in  order  to  be- 
come a  part  of  a  contract  so  that  it  may 
be  relied  upon  by  the  passengers,  be  so 
general,  certain,  unitorm,  and  notorious, 
and  must  be  so  clearly  proved,  that  it  can 
be  concluded  that  the  officers  and  agents  of 
the  carrier  possessed  knowledge  of  such 
usage  and  acquiesced  therein  as  part  of  the 
contract.  Runyan  v.  Central  R.  Co.  (N.  J. 
Sup.)  64  N.  J.  L.  67,  44  Atl.  985,  48:  744 

712.  The  mere  indulgence  by  servants 
of  a  railroad  company  of  the  practice  by 
passengers  to  carry  packages  of  merchan-, 
dise,  when  it  is  not  in  obedience  to  duty  or 
contract,  cannot  bind  the  carrier  or  pre- 
vent  it    from   discontinuing  the   practice. 

Id. 

713.  A  habit  of  one  particular  passenger 
to  carry  a  package  of  merchandise  into  the 
passenger  cars,  and  with  him  on  his  jour- 
ney, will  not  constitute  a  usage  or  prac- 
tice which  can  be  relied  on  by  passengers 
as  a  general  regulation  of  the  railroad 
company.  Id. 

714.  Long  acquiescence  by  a  common  car- 
rier in  the  carriage  of  small  packages   of 


merchandise  by  its  passengers,  and  its 
provision  therefor  in  passenger  cars,  will 
establish  a  regulation  which  cannot  be 
rescinded  without  reasonable  notice.  Run- 
yan V.  Central  R.  Co.  (N.  J.  Err  &  App.)  61 
N.  J.  L.  537,  41  Atl.  367,  43:  284 

Provisions  in  ticket  affecting  right. 

715.  The  common-law  right  of  a  pas- 
senger to  carry  personal  baggage  with  him 
is  not  restricted  by  a  clause  on  his  ticket 
stating:  "Free  transportation  allowed  for 
150  lbs.  baggage  (wearing  apparel)  only, 
and  company's  liability  expressly  limited 
to  $1  per  lb."  Runvan  v.  Central  R.  Co. 
(N.  J.  Err.  &  App.)  61  N.  J.  L.  537,  41  Atl, 
367,  43:  284 

716.  The  right  to  carry  packages  of  gro- 
ceries for  the  use  of  one's  family  is  not 
included  in  the  right  of  a  passenger  to 
ride  on  a  commutation  ticket  entitling 
him  to  "personal  passage  only."  Bullock 
V.  Delaware,  L.  &  W.  R.  Co.  (N.  J.  Sup.) 
60  N.  J.  L.  24,  36  Atl.  773,  37:  417 
Carrier's  right  to  remove. 

717.  The  forcible  removal  of  parcels  from 
a  passenger  whose  ticket  does  not  entitle 
him  to  carry  them,  and  the  transfer  of 
them  to  an  express  car,  with  orders  to 
carry  them  onward,  constitute  a  conver- 
sion. Bullock  V.  Delaware,  L.  &  W.  R. 
Co.  (N.  J.  Sup.)  60  N.  J.  L.  24,  36  Atl.  773, 

.S7:  417 

718.  The  remedy  of  a  carrier,  when  -a, 
passenger,  after  notice  to  remove  packages 
which  he  has  no  right  to  carry,  refuses  to 
give  them  up,  is  to  remove  the  passenger 
and  his  packages,  using  no  unnecessary 
force;  but  the  carrier  has  no  right  to  take 
his  packages  away  from  him  forcibly.     Id. 

d.  Liability  of  Sleeping  Car  Company. 

Measure  of  Damages,  see  Damages,  234. 
Presumpton  as  to  Negligence,  see  Evidence, 

475. 
Question    for    Jury    as    to,    see    Trial,    95, 

304. 
For  Editorial  Notes,  see  infra,  IV.  §  15. 

719.  A  sleeping-car  company  must  exer- 
cise reasonable  diligence  in  looking  after 
the  person  and  property  of  passengers 
while  they  are  asleep  on  the  car.  Pull- 
man's Palace  Car  Co.  v.  Adams,  120  Ala. 
581,  24  So.  921,  45:  767 

720.  The  mere  fact  that  the  porter  did 
not  go  to  sleep  during  his  watch  will  not 
relieve  the  sleeping-car  company  of  liabil- 
ity for  loss  of  effects  of  a  passenger,  if 
he  was  guilty  of  other  negligence  which 
caused  the   loss.  Id. 

721.  A  sleeping  car  company  may  be 
found  liable  for  loss  of  a  passenger's  ef- 
fects, where  the  porter  went  to  sleep  dur- 
ing his  watch,  and  also  left  the  car  at  a 
station,  with  no  one  on  watch  on  the  in- 
side of  the  car.  Id. 

722.  A  sleeping-car  company,  so  far  as  it 
renders  services  similar  in  kind  to  an  inn- 
keeper, is  subject  to  the  same  liabilities; 
and  where  an  article  of  wearing  apparel 
belonging   to   a    passenger   in   one   of    such 


CARRIERS,  II.  a.  12. 


88n 


cars  has  been  placed  in  the  care  of  a  por- 
ter, and  is  stolen  from  the  car,  the  company 
will  be  liable  therefor.  Pullman  Palace- 
Car  Co.  V.  Lowe,  28  iNfeb.  239,  44  N.  W.  226, 

6:  809 

723.  The  reasonable  exercise  of  care  to 
protect  the  baggage  of  a  sleeping  passenger 
IS  not  shown  by  a  sleeping-car  company 
which  allows  a  number  of  passengers  to 
leave  the  car  at  a  station,  with  baggage 
in  their  hands,  without  paying  any  atten- 
tion as  to  whose  it  is,  where  an  emploj'ce 
is  present  who  knows  the  baggage  of  the 
sleeping  passenger,  and  by  attention  might 
prevent  its  removal  from  the  car  by  a 
stranger.  Cooney  v.  Pullman  Palace-Car 
Co.  121  Ala.  368,  25  So.  712,  53:  690 

724.  Theft  of  a  passenger's  valise  from 
the  sleeping  car  by  one  who  took  it  out  of 
the  car  window  by  catching  on  to  the  car 
as  it  slackened  speed  while  cros^ng  another 
railroad  will  not  render  the  sleeping-cAr 
company  liable,  where  it  had  locked  the 
back  door  of  the  car,  and  the  conductor 
and  porter  were  guarding  the  open  door  in 
front,  while  the  passenger  himself  was  in 
the  smoking  car.  Pullman's  Palace-Car  Co. 
V.  Hall,  106  G a.  765,  32  S.  E.  923,  44:  790 
For  what  property  liable. 

For  Editorial  Notes,  see  infra,  IV.  §  15. 

725.  For  such  a  sum  of  money  and  such 
articles  as  a  passenger  might  for  her  per- 
sonal convenience  and  adornment  appropri- 
ately carry  with  her  in  a  sleeping  car,  if 
stolen  by  an  employee  while  the  passenger 
was  under  his  protection,  the  sleeping-car 
company  is  liable.  Pullman's  Palace-Car 
Co.  V.  Martin,  95  Ga.  314,  22  S.  E.  700, 

29:  498 

726.  A  passenger  on  a  sleeping  car  can- 
not recover  from  the  sleeping-car  company 
the  value  of  a  ring  carried  in  his  pocket- 
book,  and  which  was  not  capable  of  being 
usfd  by  him  on  the  journey,  although  the 
loss  occurred  through  its  negligence.  Pull- 
man's Palace  Car  Co.  v.  Adams,  120  Ala. 
581,  24  So.  921.  45:  767 

727.  A  sleeping-car  company  through 
whose  negligence  a  satchel  of  a  passenger 
is  lost  is  liable  for  mileage  tickets,  which  it 
is  usual  for  such  persons  to  carry,  for 
opera  glasses,  compass,  razor  and  accoutre- 
ments, and  nasal  syringe,  with  accom- 
paniments, which  were  in  the  satchel,  but 
not  for  a  pistol.  Cooney  v.  Pullmani  Palace- 
Car  Co.  121  Ala.  368,  25  bo.  712,  53:  690 
Property  in  passenger's  possession. 
Action   by   Passenger   for   Theft   of  Money 

Intrusted  to  Him,  see  Parties,  104. 

728.  Money  carried  during  the  day  in  a 
passenger's  clothing,  and  placed  under  his 
pillow  at  night,  is  not  in  the  custody  of 
the  carrier  furnishing  him  a  berth  in  a 
sleeping  coach,  within  the  rule  that  a  car- 
rier is  liable  for  the  value  of  the  effects 
of  travelers  lost  while  in  its  custody  for 
transportation.  Carpenter  v.  New  York, 
N.  H.  &  H.  R.  Co.  124  N.  Y.  53,  26  N.  E. 
277,  11:  759 

729.  A  sleeping-car  company  is  not  lia- 
ble to  a  passenger  for  the  loss  by  theft  of 
personal  effects   taken   into   the   car   by   a 


passenger  for  his  own  use  and  retained 
in  his  possession,  either  under  the  rules 
governing  innkeepers  or  those  relating  to 
carriers'  liability  for  baggage,  but  the  car- 
rier is  liable  only  for  failure  to  exercise 
reasonable  care  to  guard  the  property. 
Pullman's  Palace-Car  Co.  v.  Hall,  106  Ga. 
765,   32   S.   E.   923,  44:  790 

730.  The  theft  of  diamond  rings  from 
the  finger  of  a  woman  while  she  is  asleep 
in  a  sleeping  car  gives  her  a  right  of  ac- 
tion against  the  sleeping-car  company,  if 
the  theft  results  from  the  failure  of  the 
agents  and  employees  in  charge  of  the 
car  to  use  ordinary  care  and  watchfulness 
to  protect  her  and  her  property  from 
thieves.  Pullman's  Palace  Car  Co.  v.  Hun- 
ter, 107  Ky.  519,  54  S.  W.  845,  47:  286 
Theft  by  ptfrter. 

731.  The  theft  of  the  money  of  a  pas- 
senger on  a  sleeping  car  by  a  porter  in 
charge  of  the  car  renders  the  sleeping-car 
company  liable  therefor  to  the  passenger. 
Pullman  Palace-Car  Co.  v.  Gavin,  93  Tenn. 
53,  23  S.  W.  70,  21:  298 
Contributory  negligence. 

732.  A  passenger  on  a  sleeping  car  is 
not  required  to  place  his  pocketbook  in 
the  safest  place  in  order  to  hold  the  sleep- 
ing-car company  liable  for  its  loss.  Pull- 
man's Palace  Car  Co.  v.  Adams,  120  Ala. 
581,  24  So.  921,  45:  767 

733.  That  a  passenger  removes  a  ring 
from  his  finger  to  his  pocketoook  upon  re- 
tiring for  the  night  in  a  sleeping  car  will 
not  deprive  him  of  the  right  to  hold  the 
sleeping-car  company  liable  for  its  loss  by 
theft  through  its  negligence.  Id. 
Fellow  traveler's  negligence. 

734.  The  negligence  of  a  fellow  traveler 
will  not  deprive  a  passenger  on  a  sleeping 
car  of  the  right  to  hold  the  sleeping  car 
company  liable  for  loss  of  his  effects  by 
theft  while  he  is  asleep  in  the  car.  Pull- 
man's Palace  Car  Co.  v.  Adams,  120  Ala. 
581,  24  So.  921,  45:  767 

e.  Limitation  of  Liability. 

As  to  Passengers,  see  supra,  II.  a,  10,  f. 
As  to   Freight  generally,  see   infra,  II.  b, 

7. 
See  also  supra,  715. 
For  Editorial  Notes,  see  infra,  IV.  §§  28, 

33. 

735.  A  steamship  company  is  not  entitled 
to  a  limitation  of  its  liability  for  loss  of 
passengers  and  baggage  through  the  sink- 
ing of  its  vessel,  where  its  crew  could  not 
understand  the  language  of  its  officers, 
and  were  not  drilled  in  the  launching  of 
the  boats,  so  that  after  the  accident  but  one 
boat  was  successfully  launched,  although 
there  was  time  enough  to  launch  them  all 
had  proper  orders  been  given  and  obeyed, 
and  the  statute  provides  that  no  steamer 
carrying  passengers  shall  depart  from  any 
port  unless  she  shall  have  in  her  service 
a  full  complement  of  licensed  officers,  and 
a  full  crew  sufficient  at  all  times  to  man- 
age the  vessel.  Re  Pacific  Mail  S.  S.  Co. 
64  C.  C.  A.  410,  130  Fed.  76,  69:  71 


390 


CARRIERS,  II.  b,  1. 


736.  A  regulation  limiting  the  amount  of 
liability  for  injuries  to  baggage  of  a  pas- 
senger may  be  made  by  notice  on  the  back 
of  a  steamship  contract  ticket,  where  at- 
tention is  directed  thereto  by  the  words 
•'See  back,"  conspicuously  printed  on  the 
face  of  the  ticket,  since  the  carrier's  liabil- 
ity as  to  baggage,  not  being  exactly  de- 
fined, may  be  made  definite  and  certain 
by  reasonable  restrictions.  Potter  v.  The 
Majestic,  20  U.  S.  App.  503,  9  C.  C.  A. 
161,  60  Fed.  624,  23:  746 
[Reversed  by  the  Supreme  Court  of  the 
United  States  in  166  U.  S.  375,  41  L.  ed. 
1039,  17  Sup.  Ct.  Rep.  597.] 

737.  A  condition  restricting  the  liability 
of  a  steamship  company  to  a  passenger 
by  exempting  it  froxn  liability  for  injuries 
to  person  or  baggage  by  periA  of  the  sea 
and  negligence  in  navigation,  among  other 
things,  is  so  material  a  restriction  of  a 
carrier's  liability  that  it  cannot  be  made 
by  notice  on  the  back  of  a  steamship  con- 
tract ticket,  although  the  words  "See  back" 
are  conspicuously  placed  on  the  face  of  the 
ticket.  Potter  v.  The  Majestic,  20  U.  S. 
App.  503,  9  C.  C.  A.  161,  60  Fed.  624, 

23:  746 
[Reversed  on  other  grounds  by  the  Su- 
preme Court  of  the  United  States  in  166 
U.  S.  375,  41  L.  ed.  1039,  17  Sup.  Ct.  Rep. 
597.] 

b.  As  to  Freight. 
1.  In  General;  Powers  of  Agents. 

Matters    as    to     Connecting    Carriers,    see 

infra,  II.  c,  2. 
Dut^   as  to  Tracing  Freight   Shipped  Over 

Connecting  Lines,  see  infra,   1002-1005. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

I.  b,  4. 
Act    Making    Specification    of    Weights    in 

Bills    of    Lading    Conclusive,    see    Con- 
stitutional Law,  925. 
Measure  of  Damages  for  Breach  of  Duty  as 

to,  see  Damages,  III.  d. 
Judicial   Notice  as  to   Special   Street  Cars 

Carrying,  see  Evidence,  97. 
Presumption    and    Burden    of    Proof    as   to 

Negligence,    see    Evidence,   II.   h,    1,    6, 

(2). 
Passing  of  Title  on  Delivery  to  Carrier,  see 

Sale,   18-26. 
Conversion   by  Carrier,  see  Trover,   15,  31- 

33. 
See  also  supra,  4. 
For  Editorial  Notes,  see  infra,  IV.   §§   31- 

47. 

738.  A  shipper  who  procures  the  estab- 
lishment of  a  train  for  the  accommodation 
af  his  business  by  guaranteeing  the  carrier 
against  loss,  with  the  understanding  that 
it  shall  not  be  at  the  service  of  rivals, 
cannot,  when  the  carrier  is  compelled  to 
serve  such  rivals,  compel  them  to  con- 
tribute to  the  expense  of  establishing  the 
train,  since  it  would  be  impossible  to  state 
an  equitable  account.  One  is  no  more 
bound  to  contribute  than  are  all  who  have 
utilized   the  advantages  of  that  train,  and 


no  shipper  is  bound,  as  a  condition  of  the 
right  to  have  his  property  transported  by 
a  particular  train,  to  share  a  burden  volun- 
tarily assumed  by  another  shipper  for 
the  purpose  of  having  the  train  established. 
Memphis  News  Pub.  Co.  v.  Southern  R.  Co. 
110  Tenn.  684,  75  S.  W.  941,  63:  150 

739.  A  contract  binding  a  carrier  to 
transport  as  many  carloads  of  grain  as  the 
shipper  may  desire  transported  is  valid 
as  to  acts  done  in  performance  of  it,  and 
until  revoked.  Cleveland,  C.  C.  &  I.  R,  Co. 
V.  Closser,  126  Ind.  348,  26  N.  E.  159, 

9:  754 

740.  A  shipper's  contract  with  a  carrier 
cannot  be  changed  by  handing  a  receipt  or 
bill  of  lading  to  his  clerk.  Rudell  v. 
Ogdensburg  Transit  Co.  117  Mich.  568,  76 
N.  W.  380,  44:  415 

741.  A  bill  of  lading  issued  by  a  station 
or  shipping  agent  of  a  common  carrier 
without  receiving  goods  for  transportation 
imposes  no  liability  upon  the  carrier,  even 
to  an  innocent  consignee  or  indorsee  for 
value;  and  the  carrier  is  not  estopped  by 
the  bill  from  showing  that  no  goods  were 
in  fact  received.  National  Bank  of  Com- 
merce V.  Chicago,  B.  &  N.  R.  Co.  44  Minn. 
224,  46  N.  W.  342,  560,  9:  263 
Powers  of  agents. 

Power    of    Agents    as    to    Passengers,    see 

supra,  14,  15. 
See  also  supra,  741. 
For  Editorial  Notes,  see  infra,  IV.  §  38.    ' 

742.  A  contract  by  a  carrier  to  deliver 
goods  at  destination  at  a  certain  time, 
which  allows  the  usual  period  for  making 
the  trip,  is  within  the  general  authority 
of  the  carrier's  agent.  Rudell  v.  Ogdens- 
burg Transit  Co.  117  Mich.  568,  76  N.  W. 
380,  44:  415 

743.  A  carrier  which  knowingly  permits 
one  to  act  as  its  agent  in  such  manner 
and  for  such  length  of  time  as  to  induce 
a  person  of  ordinary  prudence  to  believe 
that  such  assumed  agent  is  in  fact  a  gen- 
eral agent  will  be  bound  by  his  acts  with- 
in the  apparent  scope  of  his  authority. 
Seasongood,  S.  K.  &  Co.  v.  Tennessee  & 
O.  R.  Transp.  Co.  21  Ky.  L.  Rep.  1142, 
54  S.  W.  193,  49:  270 

744.  An  agent  employed  to  solicit  traf- 
fic for  a  foreign  railroad  company  having 
no  line  of  road  in  Nebraska  has  implied 
authority  to  bind  his  principal  for  the  safe 
delivery  of  goods  at  a  point  beyond  its 
own  lines,  and  to  contract  over  what  road 
beyond  that  line  the  property  shall  be 
transported.  Union  State  Bank  v.  Fre- 
mont, E.  &  M.  Valley  R.  Co.  66  Neb.  159, 
92   N.   W.    131,  59:  939 

745.  A  shipper's  knowledge  of  directions 
to  the  carrier's  agent  not  to  receive  cer- 
tain articles  for  transportation  will  not  re- 
lieve the  carrier  from  liability  if  their 
transportation  is  actually  undertaken. 
Bennett  v.  American  Exp.  Co.  83  Me.  236, 
22  Atl.  159,  13:  33 
Duty  to  place  cars  on  switch. 

See  also  infra,  968,  969. 

746.  A  railroad  company  will  not  be  com* 


CARRIERS,  IL  b.  2. 


391 


pelled  to  place  cars  on  a  switch  in  a  public 
street  in  front  of  the  property  of  a  shipper 
who  desires  to  load  and  unload  them  at 
that  point,  in  the  absence  of  express  au- 
thority from  the  municipality  to  do  so, 
and  conclusive  evidence  that  it  would  not 
be  prejudicial  to  other  patrons  of  the  road. 
Louisville  &  N.  R.  Co.  v.  Pittsburgh  &  K. 
Coal  Co.  Ill  Ky.  960,  64  S.  W.  969, 

55:  601 
Payment  of  duties. 

747.  A  earner  which  pays  the  duties  on 
imported  goods  at  the  place  of  entry,  when 
it  has  agreed  to  receive  and  transport 
them  in  bond  to  another  place,  where  there 
may  be  a  market  for  the  goods  in  bond  for 
purposes  of  export  or  tor  sale  to  the  United 
States  government,  is  liable  to  the  owner 
for  the  damages  which  he  sustains  on  ac- 
count of  such  unauthorized  payment  of  the 
duties  by  the  carrier.  Smith  Bfos.  &  Co. 
V.  New  Orleans  &  N.  E.  R.  Co.  106  La.  11, 
30  So.  265,  54:  923 
Requirement  of  notice  of  value  and  char- 
acter. 

See  also  infra,  782,  837. 

748.  "Trinkets,"  within  the  meaning  of 
U.  S.  Rev.  Stat.  §  4281,  U.  S.  Comp.  Stat. 
1901,  p.  2942,  requiring  shippers  of  certain 
articles  to  give  written  notice  to  the  car- 
rier of  the  true  character  and  value  there- 
of, include  fans  and  parasols  made  of  deli- 
cate and  expensive  materials,  ornamented 
with  carving,  fragile  in  construction,  and 
intended  more  for  ornament  than  use,  al- 
though possessing  to  some  extent  the  qual- 
ity of  utility.  Ocean  feteamship  Co.  v. 
Way,  90  Ga.  747,  17  S.  E.  57,  20:  123 

749.  A  lady's  shawl  made  exclusively  of 
Chantilly  lace  is  "lace"  within  the  meaning 
of  U.  S.  Rev.  Stat.  §  4281,  U.  S.  Comp. 
Stat.  1901,  p.  2942,  requiring  notice  to  car- 
riers of  the  true  character  and  value  of 
certain  articles  shipped.  Id. 
Express  limits. 

750.  An  express  company  may  lawfully 
establish  limits  beyond  which  it  will  not 
collect  or  deliver  packages  carried  or  to 
be  carried  by  it,  as  against  one  having 
knowledge  of  such  limits;  and  it  is  imma- 
terial that  the  limits  extend  farther  from 
its  office  in  one  direction  than  in  another. 
Bullard  v.  American  Exp.  Co.  107  Mich. 
695,  6*5  N.  W.  551,  33:  66 
Agreement  for  insurance. 

Parties  to  Action  for  Breach  of,  see  Par- 
ties, 164. 
See  also  Insurance,  304. 

751.  A  condition  in  a  bill  of  lading,  that 
the  shipper  shall  insure  the  goods  for  the 
carrier's  benefit,  cannot  protect  the  carrier 
against  the  consequences  of  its  own  negli- 
gence. Willock  V.  Pennsylvania  R,  Co.  IGO 
Pa.  184,  30  Atl.  948,  27:  228 

2.   Duty   to   Receive   and   Transport. 

Penalty  for  Refusal  to  Receive,  see  infra, 

1024. 
<'ontract    or    Duty    to    Furnish    Cars,    see 

infra,  IL  b,  8. 


Agent's  Right  to  Sue  for  Breach  of  Con- 
tract to  Transport,  see  Parties,  43. 

Question  for  Jury  as  to  Failure  to  Forward 
Corpse,    see    Trial,    307. 

See  also  supra,   745;    infra,  846. 

For  Editorial  Notes,  see  infra,  IV.  §  42. 

752.  A  common  carrier  is  under  a  legal 
duty  to  accept  and  carry  whatever  is  of- 
fered to  him,  at  a  reasonable  time  and 
place,  of  a  kind  that  he  undertakes  or  is 
accustomed  to  carry  subject  to  the  full  lia- 
bilit}'  of  a  common  carrier,  unless  such  lia- 
bility is  restricted  by  a  valid  agreement  be- 
tween such  carrier  and  his  emplover.  Kir- 
by  V.  Western  U.  Teleg.  Co.  4  S.  D.  105,  439, 
7  S.  D.  623,  55  N.  W.  759,  57  N.  W.  199.  65 
N.  W.  37,  30:  612 

753.  A  shipper  who  tenders  fruit  for 
transportation  in  excess  of  the  capacity  of 
the  refrigerator  cars  which  he  has  notified 
the  carrier  he  will  need  may  recover  for 
the  carrier's  refusal  to  accept  the  excess, 
unless  such  refusal  is  excused  by  the  cir- 
cumstances of  the  case.  Mathis  v.  South- 
ern R.  Co.  65  S.  C,  271,  43  S.  E.  684, 

61 :  824 

754.  It  is  the  duty  of  an  express  com- 
pany, under  N.  C.  Code,  §  1964,  which  re- 
quires that  agents  shall  receive  articles  for 
transportation  "whenever  tcTj^dered  at  a 
regular  depot.  .  .  .  and  sliall  forward 
the  same  by  the  route  selected  by  the  per- 
son tendering  the  freight,  under  existing 
laws,"  to  receive  a  package  of  money 
"whenever  tendered,"  except  at  times  for 
repose  or  for  taking  meals  according  to  the 
usages  of  the  place;  the  words  "under 
existing  laws"  refer  only  to  the  time  of 
forwarding.  Therefore  a  rule  of  the  com- 
pany prohibiting  the  receipt  of  monej' 
packages  except  on  the  same  day  of,  and 
prior  to,  the  arrival  and  departure  of 
trains  going  towards  the  destination  of 
the  package,  is  unreasonable  and  void.  Al- 
sop  V.  Southern  Exp.  Co.  104  N.  C.  278,  10 
S.  E.  297,  6:  271 
What  justifies  refusal. 

For  Editorial  Notes,  see  infra,  TV.  §  42. 

755.  A  railroad  company  which  refuses 
to  receive  fruit  for  transportation  because 
it  is  not  in  a  properly  7ced  refrigerator 
car  cannot  relieve  itself  from  liability  for 
breach  of  its  duty  to  transport  the  fruit 
on  the  ground  that  it  did  not  hold  itself 
out  to  the  public  as  furnishing  such  cars 
for  that  purpose.  Mathis  v.  Southern  R. 
Co.  65  S.  C.  271,  43  S.  E.  684,  61:  824 

756.  A  railroad  company  cannot  refuse  to 
accept  fruit  for  transportation  because  re- 
frigerator cars  are  necessary  therefor, 
which  are  provided  and  furnished  only  by 
another  company.  Id. 

757.  The  liability  of  a  railroad  company 
for  refusal  to  accept  fruit  for  transporta- 
tion does  not  depend  upon  its  having  made 
an  agreement  to  furnish  properly  refriger- 
ated  cars.  Id. 

758.  A  common  carrier  has  no  right  to  de- 
mand of  a  shipper  a  waiver  nf  his  rights 
as  a  condition  precedent  to  receiving 
freight.'  Missouri  P.  R.  Co.  v.  Fagan,  72 
Tex.  127,  9  S.  W.  749,  2:  75 


'692 


CARRIERS,  II.  b,  8. 


759.  That  freight  is  destined  to  a  point 
beyond  its  line  will  not  authorize  a  car- 
rier to  refuse  to  accept  it  when  tendered 
to  it  for  transportation.  Seasongood,  S. 
K.  &  Co.  V.  Tennessee  &  O.  R.  Transp.  Co. 
21  Ky.  L.  Rep.  1142,  54  S.  W.  193,       49:  270 

760.  An  agreement  between  rival  car- 
riers, that  each  will  accept  only  freight 
destined  to  points  within  certain  specified 
limits,  will  not  absolve  one  from  liability 
to  shippers  for  refusal  to  accept  freight 
destined  for  points  within  another's  terri- 
tory. Id. 
Liability  for  loss  resulting  from  refusal. 
Measure  of  Damages  for  Refusal,  see  Dam- 
ages, 232. 

Allegations  as  to,  see  Pleading,  362. 

761.  A  carrier  refusing  to  accept  freight 
tendered  may  be  held  liable  for  its  loss  by 
theft  before  the  owner  has  opportunidy, 
after  notice  of  refusal,  to  make  some  safer 
disposition  of  it  than  to  leave  it  in  the 
warehouse  at  the  wharf.  Seasongood,  S. 
K.  &  Co.  V.  Tennessee  &  O.  R.  Transp.  Co. 
21  Ky.  L.  Rep.  1142,  54  S.  W.  193,    49:  270 

3.  Loss  of,  or  Injury  to.  Property. 

Termination  of  Liability  for,  see  infra,  11. 
b,  4,  6. 

Loss  of,  or  Injury  to  Live  Stock,  see  infra, 
II.  b,  6.         . 

Stipulations  to  Limit  Liability,  see  infra, 
II.  b,  7. 

Perils  Excepted  by  Contract  of  Carriage, 
see  infra,  II.  b,  7,  e. 

By  Connecting  Carrier,  see  infra,  986. 

Act  of  God  Relieving,  from  Liability,  see 
Act  of  God,  6-11. 

Evidence  Admissible  to  Show  That  No 
Goods  Were  Lost,  see  Appeal  and 
Error,  960. 

Action  on  the  Case  for  Injury,  see  Case, 
7. 

Estoppel  of  Consignee  by  Giving  Clear  Re- 
ceipt, see  Estoppel,  140, 

Presumption  and  Burden  of  Proof  as  to 
Megligence,  see  Evidence,  481-490. 

Presumption  and  Burden  of  Proof  as  to 
Condition  of  Property  on  its  Receipt 
by  Carrier,  see  Evidence,  755,  766. 

Evidence  of,  see   Evidence,  972. 

Sufficiency  of  Proof  of  Condition  on  De- 
livery to  Carrier,  see  Evidence,  2251. 

Liability  to  Insurer  Paying  Loss,  see  In- 
surance, 1254. 

Liability  for  Loss  of  Mail,  see  Postoffice, 
9-12. 

Proximate  Cause  of  Loss,  see  Proximate 
Cause,  64. 

Subrogation  of  Carrier,  see  Insurance,  VI. 
f;   Subrogation,  3. 

Question   for  Jury  as  to,  see  Trial,  581. 

Trover  for   Injury,  see  Trover,  33. 

See  also  supra,  751,  761;  infra,  784,  827- 
835. 

For  Editorial  Notes,  see  infra,  TV.  §§  31, 
39. 

762.  A  carrier's  duty  is  not  limited  to 
the  transportation  of  goods  delivered  for 
carriage.     Ha  must  exercise  such  difigence 


as  is  required  by  law  to  protect  the  goods 
from  destruction  and  injury  from  any 
source,  which  may  be  averted  and  which  in 
the  exercise  of  care  and  ordinary  intelli- 
gence may  be  known  or  anticipated.  Beard 
V.  Illinois  C.  R.  Co.  79  Iowa,  518,  44  N.  W. 
800,  7:  280 

763.  A  carrier  cannot  absolve  itself  from 
its  duty  to  furnish  safe  cars  by  exact- 
ing a  contract  requiring  the  shipper  to  in- 
spect and  select  his  car,  where  the  shipper 
is  induced  to  take  the  risk  by  safe,  but 
false,  appearances,  while  the  carrier  knows 
that  the  car  selected  is  unsafe.  Lake  Erie 
&  W.  R.  Co.  V.  Holland,  162  Ind.  406,  69 
N.  E.   138,  63:  948 

704.  The  rate  of  charges  as  shown  by 
the  waybill  of  butter,  if  it  does  not  ex- 
press a  contract  to  excuse  the  carrier  from 
the  exercise  of^the  care  required  by  law, 
although  it  is  the  rate  for  common  cars, 
will  not  limit  the  care  to  be  exercised  by 
the  carrier  or  restrict  its  liability.  Beard 
V.  Illinois  C.  R.  Co.  79  Iowa,  518,  44  N.  VV." 
800,  7:  280 

By  fire. 
Limitation    of   Liability   as   to,    see    infra, 

941-946. 
Proximate    Cause    of   Loss    by,    see    Proxi- 
mate Cause,  31,  36. 
See  also  infra,  778,  794,  795. 

765.  While  common  carriers  are  not  con- 
sidered, under  the  provision  of  the  Civil 
Code  of  Louisiana,  as  insurers  against  loss 
or  damage  by  fire,  they  are  liable  "un- 
less they  can  prove  that  such  loss  or  dam- 
age has  been  occasioned  by  accidental  and 
uncontrollable  events."  Lehman,  Stern,  & 
Co.  V.  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  115 
La.   1,  38  So.  873,  70:  562 

766.  Where  cotton  on  a  railroad  plat- 
form, in  course  of  delivery,  is  damaged  by 
fire,  the  carrier,  in  order  to  escape  liability, 
must  prove  that  the  fire  was  purely  ac- 
cidental and  impossible  to  prevent;  and, 
in  the  absence  of  proof  of  the  origin  of 
the  fire,  the  loss  will  be  imputed  to  the 
fault   of   the   carrier.  Id. 

767.  The  jury  may  properly  find  that 
the  failure  of  a  carrier  to  rescue  goods 
from  a  car  which  had  been  overturned  by 
the  force  of  the  wind,  before  they  were 
consumed  by  fire  started  by  the  stove  fire 
and  lights  within  the  car,  was  not  negli- 
gence, where  ,the  evidence  shows  that'  the 
wind  was  so  strong  as  to  render  it  almost 
impossible  for  men  to  stand  or  walk,  while 
the  air'  was  so  full  of  dust  and  flying 
material  that  scarcely  anything  could  be 
seen,  and  the  fire  succeeded  the  overturn- 
ing almost  instantaneously,  so  that  even 
the  messengers  within  the  car  escaped  with 
great  difficulty.  Blythe  v.  Denver  &  R.  G. 
R.  Co.  15  Colo.  333,  25  Pac.  702,         11:  615 

768.  Under  a  contract  for  transportation 
of  property  by  a  transportation  agency  by 
means  of  which  certain  carriers  contract 
for  the  carriage  of  freight  over  their  con- 
necting lines,  which  provides  that  no  car- 
rier shall  be  liable  after  the  property  is 
ready  for  delivery  to  the  next  carrier,  a 
railroad  company  is  not  liable  if  the  prop- 


CAl^RIERS,  II.  b,  8, 


893 


erty  is  accidentally  destroyed  by  fire  in  its 
warehouse  on  a  pier  where  it  is  awaiting 
the  arrival  of  a  vessel  of  an  ocean  carrier 
by  which  it  is  to  be  taken  to  its  destina- 
tion, and  which  has  no  place  of  storage 
of  its  own.  Courteen  v.  Kanawha  Des- 
patch, 111  Wis.  610,  86  N.  W.  176,     55:  182 

769.  A  carrier  which,  by  contract  or  by 
usage,  selects  a  compress  company  as  its 
agent  to  receive  cotton  that  is  to  be 
shipped  over  its  road,  and  issues  bills  of 
lading  therefor  on  presentation  of  the  com- 
press company's  receipts,  is  in  possession  of 
the  cotton  when  the  bill  of  lading  has  been 
executed,  so  as  to  be  liable  for  its  loss  by 
fire.  Deming  v.  Merchants'  Cotton-Press  & 
S.  Co.  90  Tenn.  306,  17  S.  W.  89,       13:  518 

770.  No  rights  of  a  shipper,  growing  out 
of  a  contract  between  the  carrier  and  its 
agent  that  the  latter  shall  procure  insur- 
ance on  the  shipper's  property  \^ile  in  its 
possession  as  such  agent,  can  be  adjusted, 
as  between  the  shipper  and  agent,  in  case 
of  the  loss  of  the  property  by  fire,  unless 
the  carrier  has  been  sued  and  its  liability 
for  the  loss  established.  Id. 
By  freezing. 

Limitation    of    Liability    as    to,    see    infra, 
940. 

771.  A  carrier  which  sends  a  carload  of 
orange  trees  early  in  March  from  New 
Orleans,  Louisiana,  to  Riverside,  California, 
by  the  way  of  Denver,  Colorado,  and  Ogden, 
Utah,  without  notifying  the  consignees  or 
consignor  and  taking  directions  from  them, 
is  liable  for  the  loss  of  the  trees  by  freez- 
ing, although  its  own  route  through  Texas, 
New  Mexico,  and  Arizona  was  temporarily 
interrupted  by  storms  and  washouts.  Pierce 
v.  Southern  P.  Co.  120  Cal.  156,  47  Pac.  874,. 
52  Pac.  302,  40:  350 
By  lack  of  proper  refrigeration. 
Evidence   of   Custom   as   to,   see   Evidence, 

2052. 

772.  The  loss  of  perishable  freight  on  ac- 
count of  lack  of  proper  refrigeration,  when 
shipped  in  refrigerator  cars,  renders  the 
railroad  company  liable  to  the  shipper,  al- 
though the  cars  were  leased  by  the  rail- 
road company  from  a  transportation  com- 
pany which  agreed  to  keep  them  properly 
refrigerated.  New  York,  P.  &  N.  R.  Co. 
V.   Cromwell,  98   Va.   227,  35   S.  E.   444, 

49:  462 

773.  A  railroad  company  which  contracts 
to  furnish  a  refrigerator  car  for  the  trans- 
portation of  fruit  cannot  relieve  itself  from 
liability  because  of  failure  to  have  the  car 
properly  iced  on  the  ground  that  it  be- 
longs to  another  company.  Mathis  v. 
Southern  R.  Co.  65  S.  C.  271,  43  S.  E. 
684,  61 :  824 

774.  A  carrier  which  has  accepted  butter 
for  transportation  cannot  .escape  liability 
for  damage  to  the  butter  from  the  heat 
during  transportation  by  the  fact  that  it 
did  not  have  refrigerator  cars  which  were 
ready  for  use, — at  least  when  it  could  have 
been  carried  safely  by  the  use  of  ice  in 
the  cars  which  were  used.  Beard  v.  Illi- 
nois C.  R.  Co.  79  Iowa,  518,  44  N.  W.  800, 

7:280 


775.  The  sealing  of  a  car  containing  but- 
ter when  received  from  a  connecting  car- 
rier is  no  excuse  for  failure  to  put  ice  in 
the  car  if  necessary  to  protect  the  butter 
from  the  heat.  Id. 
By  fermentation. 

776.  A  carrier  is  not  liable  for  the  loss 
due  to  the  bursting  of  a  hogshead  of  mo- 
lasses by  reason  of  fermentation,  as  this 
results  from  the  operation  of  natufal  laws 
which  a  common  carrier  does  not  insure 
against.  Faucher  v.  Wilson,  68  N.  H.  338, 
38  Atl.  1002,  39:  431 
By  mob. 

Limitation    of    Liability    as    to,    see    infra, 

947. 
See  also  infra,  830. 
For  Editorial  Notes,  see  infra,  IV.   §§  42, 

43. 

777.  A  mob  of  rioters  is  not  a  public 
enemy,  within  the  exception  to  the  rule 
that  makes  a  common  carrier  an  insurer 
of  goods  carried.  Missouri  P.  R.  Co.  v. 
Nevils,  60  Ark.  375,  30  S.  W.  425,  28:  80 
In  warehouse. 

778.  Permitting  a  car  labeled  "Powder** 
to  stand  in  such  close  proximity  to  its 
warehouse  as  to  deter  the  city  fire  depart- 
ment from  attempting  to  extinguish  a 
fire  in  the  warehouse  will  render  a  carrier 
liable  for  the  loss  of  goods  in  the  ware- 
house which  would  not  have  been  destroyed 
had  the  car  not  been  there,  although  lia- 
bility as  carrier  had  ceased  and  there  was 
in  fact  no  powder  in  the  car.  Hardman 
V.  Montana  Union  R.  Co.  27  C.  C.  A.  407, 
48  U.  S.  App.  670,  83  Fed.  88,  39:  300 
Goods  shipped  C.  0.  D. 

779.  A  carrier  which,  having  transport- 
ed goods  at  consignor's  risk  C.  O.  D.,  pre- 
sents a  bill  to  the  consignee  before  de- 
livering them,  knowing  facts  which  indi- 
cate that  they  have  been  damaged  in  tran- 
sit, must  disclose  such  facts,  or  it  may  be 
compelled  to  return  the  money  collected,  in 
case  the  consignment  is  rejected  by  the 
consignee.  Hardy  v.  American  Exp.  Co. 
182  Mass.  328,  65  N.  E.  375,  59:  731 

780.  That  a  carrier  who  collected  the  bill 
for  goods  carried  C.  O.  D.,  before  deliver- 
ing them,  with  knowledge  of  their  prob- 
able injury  in  transit,  has  delivered  the 
fund  to  the  consignor,  will  not  absolve  him 
from  liability  to  return  the  amount  to  the 
consignee,  in  case  notice  of  refusal  to  re- 
ceive the  goods  is  given  him  within  a  rea- 
sonable time.  Id. 

781.  A  notice  by  a  consignee  of  goods  C. 
0.  D.  who,  before  delivery  of  the  goods, 
paid  the  bill  to  the  carrier,  who  presented 
it  knowing  of  the  probable  injury  of  the 
goods  in  transit,  that  he  put  in  a  claim 
for  the  entire  shipment,  and  held  the  goods 
subject  to  the  carrier's  inspection,  may 
be  found  by  the  jury  to  be  a  sufficient  in- 
dication of  readiness  to  rescind,  although 
no  tender  of  the  goods  was  actually  made 
and  they  were  of  some  value,  where  the 
circumstances  indicate  an  absolute  denial 
of  liability,  and  that  a  tender  would  have 
been  of  no  avaiL  Id. 


394 


CARRIERS,  n.  b.  4. 


Effect  of  shipper's  fraud. 

782.  A  constructive,  if  not  an  actual, 
fraud  to  obtain  cheap  rates  of  freight, 
which  relieves  the  carrier  from  liability  for 
loss  of  the  goods,  is  shown  where  a  man 
of  intelligence  ships  in  a  basket  with  a 
rope  around  it,  without  making  known  its 
contents,  a  quantity  of  silks,  satins,  laces, 
curtains,  silver  spoons,  and  other  valuable 
articles,  most  of  which  are  for  sale  by  his 
wife  in  her  business  as  a  dressmaker  and 
milliner,  and  remains  silent  when  he  hears 
"the  carrier's  agent  designating  them  as 
household  goods,"  the  rate  on  which  is 
verv  much  less  than  that  on  merchandise. 
Shackt  V.  Illinois  C.  R.  Co.  94  Tenn.  658,  30 
S.  W.  742,  28:  176 

4.  Delivery  by  Carrier;  Delay. 

o.  In  General;  Refusal  to  Deliver. 

Measure  of  Damages  for  Nondelivery,   see 

Damages,  235,  236. 
See  also  infra,  967. 
For  Editorial  Notes,  see  infra,  IV.  §  44. 

Place  of  delivery. 

Burden  of  Proof  as  to,  see  Evidence,  237. 
Enforcing  by  Quo  Warranto,  see  Quo  War- 
ranto, 8. 
See  also  infra,  798,  799. 

783.  A  common  carrier  by  water,  who 
receipts  for  goods  marked  for  delivery  at 
a  private  landing,  cannot,  without  ex- 
cuse or  justification,  deliver  them  at  an- 
other landing  without  liability  for  the 
damages  so  occasioned.  Strieker  v.  Leath- 
ers, 68  Miss.  803,  9  So.  821,  13:  600 

784.  Unloading  goods  during  a  storm  on 
an  open  platform  and  leaving  them  unpro- 
tected from  the  weather  is  not  a  fault  of 
the  carrier  where  there  is  no  building  at 
that  station  or  any  agent  of  the  carrier, 
and  the  bill  of  lading  provides  that  when 
delivered  on  the  platform  they  are  at  the 
risk  of  the  owner.  Allam  v.  Pennsvlvania 
R.  Co.  183  Pa.  174,  38  Atl.  709,  39:  535 

785.  A  carrier  must  place  freight  carried 
on  platform  cars  to  a  station  where  it 
maintains  a  freight  house,  but  no  agent, 
in  the  house,  to  relieve  itself  from  liabil- 
ity for  freight  lost  through  theft,  unless  it 
shows  that  it  is  not  able  to  do  so.  Xor- 
mile  V.  Northern  P.  R.  Co.  36  Wash.  21, 
77  Pac.  1087,  67:  271 
Refusal  to  deliver. 

Statutory  Penalty  for,  as  Interference  with 

Commerce,  see  Commerce,  49. 
Relief  in  Equity  in  Case  of,  see  Equity,  97. 
See  also  supra,  785. 

786.  A  carrier  is  not  justified  in  refusing 
to  deliver  consigned  car  loads  of  freight  to 
consignees  because  they  have  entered  into 
a  combination  to  resist  the  enforcement  of 
rules  providing  demurrage  for  the  unrea- 
sonable detention  of  cars.  Kentucky  Wag- 
on Mfg.  Co.  V.  Ohio  &  M.  R.  Co.  '98  [\v. 
152.  .32  S.  W.  595,  36:  850 

787.  A  railroad  company  which  refuses 
to  deliver  freight  because  of  refusal  to  pay 
an  excessive  charge  for  carriage  cannot  es- 


cape liability  for  the  loss  thereby  caused 
on  the  ground  that  the  one  making  the 
demand  had  not  obtained  possession  of  the 
bill  of  lading,  or  an  order  for  delivery  from 
the  nominal  consignee.  Clegg  v.  Southern 
R.  Co.  135  N.  C.  148,  47  S.  E.  667,      65:  717 

788.  The  penalty  provided  by  the  Texas 
statute  for  the  refusal  of  a  railroad  com- 
pany to  deliver  freight  on  payment  or  ten- 
der of  the  charges. due  as  shown  by  the  bill 
of  lading  applies  only  to  a  company  which 
has  itself  executed,  authorized,  or  ratified 
the  execution  of  the  bill  of  lading.  Dwyer 
V.  Gulf,  C.  &  S.  F.  R.  Co.  75  Tex.  572,  12 

5.  W.  1001,  7:  478 

789.  The  exhibition  of  the  bill  of  lading 
at  the  time  of  the  tender  of  the  charges 
and  demand  of  the  goods  is  not  a  condi- 
tion precedent  to  the  recovery  of  a  penal- 
ty, under  the  Texas  statute,  for  refusal  to 
deliver  the  goods,  although  such  penalty 
should  be  inflicted  only  for  a  wilful  dis- 
regard of  the  law.  Id. 

6.  Notice  of  Arrival;   Termination  of  Lia- 

bility. 

When    Liability    for    Baggage    Ceases,    see 

supra,  692,  693. 
Termination   of   Initial   Carrier's   Liability, 

see  infra,  993-995. 
Burden  of  Proof  as  to,  see  Evidence,  484. 
For  Editorial  Notes,  see  infra,  IV.  §  41. 

790.  It  is  not  unlawful  to  stipulate,  in  a 
bill  of  lading  whi(jh  requires  a  ship  to  use 
reasonable  care  in  discharging  goods  at  a 
proper  time  and  place,  that  no  notice  of 
discharge  need  be  given  to  the  consignee. 
Rolfe  V.  The  Boskenna  Bay,  40  Fed.  91, 

6:  172 

791.  The  liability  of  a  carrier  by  rail 
as  such  terminates  upon  the  delivery  of 
the  goods  at  a  secure  depot  or  warehouse 
at  the  point  of  destination,  though  beyond 
its  own  line,  without  notice  to  the  con- 
signee of  the  arrival  or  warehousing  of  the 
goods.  Illinois  C.  II.  Co.  v.  Carter,  1().")  111. 
570,  46  N.  E.  374,  36:  527 

792.  The  liability  of  a  railroad  company 
for  goods  in  its  possession  for  transporta- 
tion as  a  common  carrier  does  not  cease, 
and  its  liability  as  warehouseman  begin, 
until  the  goods  are  deposited  in  the  depot 
or  warehouse.  Pennsvlvania  R.  »Co.  v. 
Naive,  112  Tenn.  239,  79  S.  W.  124,    64:  443 

793.  No  new  contract  is  created  by  the 
fact  that  after  goods  have  reached  their 
destination  and  been  unloaded  the  carrier's 
duty  is  by  law  reduced  from  that  of  car- 
rier to  that  of  warehouseman;  but  in 
case  of  their  nondelivery  suit  may  be 
brought  on  the  original  transportation 
contract.  Wilson  v.  California  C.  R.  Co. 
94  Cal.  166,  29  Pac.  861,  17:  685 
Loss  by  fire. 

794.  A  railroad  company  is  not  liable  as 
a  common  carrier  for  goods  destroyed  by 
fire  after  they  are  unloaded  and  stored  in 
its  depot,  although  the  consignee  had  re- 
peatedly called  for  them  and  been  told  that 
they   were   not  there.     East   Tennessee,   V. 


CAKRIERS,  II.  b,  4. 


8d5 


&  G.  R.  Co.  V.  Kelly,  91  Tenn.  699,  20  S. 
W.   312,  17:  691 

795.  A  carrier  is  liable  for  the  loss  of 
goods  by  fire  while  stored  in  a  warehouse  at 
the  place  of  destination,  because  not  called 
for  by  the  owner,  where  the  carrier,  after 
receiving  the  goods,  had  refused  to  ship 
them  without  prepayment  of  freight,  and 
then  promised  to  hold  them  during  the  de- 
tention of  the  owner,  but  afterwards  ship- 
ped them  without  notice  to  the  owner, 
who  did  not  know  of  the  shipment  until 
after  the  fire.  Campion  v.  Canadian  P.  R. 
Co.  43  Fed.  775,  11:  128 
Necessity  of  notice. 

796.  The  rule  that  a  carrier  must  give  no- 
tice to  iihe  consignee  of  the  arrival  of  goods 
at  destination  is  subject  to  exceptions  gro"»v- 
ing  out  of  special  circumstances  and  out  of 
customs  that  have  grown  up  for  the  mutua! 
advantage  of  shipper  and  carrier.  'AUam  v. 
Pennsylvania  R.  Co.  183  Pa.  174,  38  At!.  709, 

39:  535 

797.  Ordinarily  a  carrier  by  water  must 
notify  the  consignee  of  the  arrival  of  goods 
before  its  liability  as  carrier  terminates,  but 
such  notice  may  be  waived  by  a  former 
course  of  dealing  with  the  consignee,  or  by 
usage  prevailing  among  carriers  in  the  same 
trade  at  that  port.  Illinois  C.  R.  Co.  v.  Car- 
ter, 165  111.  570,  46  N.  E.  374,  36:  527 

798.  A  condition  in  a  bill  of  lading  by 
which  the  consignee  agrees  to  be  ready  to 
receive  his  goods  when  the  ship  is  ready  to 
unload,  that  in  default  thereof  the  ship  may 
land,  warehouse,  or  place  them  in  a  lighter 
without  notice,  immediately,  at  his  risk  and 
expense,  after  the  goods  leave  the  deck  of 
the  ship,  exempts  the  ship  from  the  duty  of 
giving  him  any  notice,  but  not  from  the 
duty  of  exercising  reasonable  care  to  dis- 
charge them  at  a  suitable  place.  Rolfe  v. 
The  Boakenna  Bay,  40  i?'ed.  91,  6:  172 

799.  Where  a  consignee  stipulates  that 
goods  may  be  discharged  without  notice  to 
him  at  his  risk  after  they  leave  the  deck  of 
the  ship,  there  is  no  negligence  on  the  part 
of  the  master,  which  will  render  the  ship 
liable  for  injuries  to  the  goods  after  their 
discharge,  if  they  are  discharged  at  a  place 
and  time,  and  in  a  manner,  to  which  the 
consignee,  if  present,  could -not  reasonably 
object,  and  are  placea  in  proper  custody. 

Id. 

800.  Notice  must  be  given  a  consignee  up- 
on arrival  and  storage  of  goods,  in  order  to 
reduce  the  degree  of  care  required  of  the 
carrier  to  that  of  a  warehouseman,  under 
Cal.  CiT.  Code,  §  2120,  providing  that  if  for 
any  reason  a  carrier  does  not  deliver  freighc 
to  the  consignee  or  his  agent  pei"Sonally  he 
must  give  notice  to  the  consignee  of  its  ar- 
rival, and  keep  the  same  in  safety,  on  his 
responsibility  as  a»  warehouseman,  until  the 
consignee  has  had  a  reasonable  time  to  re- 
move it.  Wilson  v.  California  C.  R.  Co.  94 
Cal.  166,  29  Pac.  861,  17:  685 
Delay  in  giving  notice. 

See  also  infra,  833. 

801.  The  liability  of  a  carrier  for  neg- 
lect to  give  prompt  notice  of  the  arrival  of 


perishable  goods  is  not  destroyed  by  the 
failure  of  the  consignee  to  make  inquiries 
for  them,  although  he  has  reason  to  believe 
that  they  are  overdue.  Pennsylvania  R.  Co. 
V.  Naive,  112  Tenn.  239,  79  S.  W.  124, 

64:  44o 
Suflaciency  of  notice. 

802.  Mailing  notice  of  the  arrival  of  the 
consignment  of  freight  to  the  consignee  at 
the  place  of  its  destination  is  sufficient. 
Normile  v.  Northern  P.  R.  Co.  36  Wash,  21, 
77  Pac.  1087,  67:271 

803.  Written  notice  of  the  arrival  of  a 
consignment  of  freight  need  not  be  given  to 
a  consignee  if  he  has  actual  notice  thereof. 

±d. 
Delay  by  consignee  in  removal. 
Question  for  Jury  as  to,  see  Trial,  154. 

804.  Reasonable  time  to  accept  and  re- 
move goods  after  their  arrival  is  given  before 
the  liability  of  a  carrier  is  reduced  to  that 
of  a  warehouseman.  Missouri  P.  R.  Co.  v. 
Nevils,  60  Ark.  375,  30  S.  W.  425,  28:  80 

805.  A  reasonable  time  within  which  to 
remove  from  the  depot  household  goods 
shipped  from  Indiana  to  California  is  not,  as 
matter  of  law,  limited  to  three  months, 
where  the  owner  wrote  the  freight  agent  a 
letter  received  two  days  after  the  arrival  of 
the  goods,  notifying  him  that  she  was  sick 
and  asking  him  to  store  the  goods  in  a  fire- 
proof warehouse,  and  the  only  attempt  at 
giving  her  notice  of  their  arrival  was  a  let- 
ter so  defectively  addressed  that  it  never 
reached  her,  and  possibly  a  postal  card  ad- 
dressed to  her  at  the  point  of  destination. 
Wilson  V.  California  C.  R.  Co,  94  Cal,  166, 
29  Pac.  861,  17:  685 

806.  A  consignee  of  freight  loaded  on  a 
flat  car  which  is  placed  on  a  side  track  at 
a  station  where  no  agent  is  maintained  by 
the  company  is  not  guilty  of  laches  when, 
after  receiving  notice  of  the  arrival  of  the 
property  and  communicating  with  the  agent 
having  supervision  of  the  station,  insuffi- 
cient time  remains  to  effect  a  removal  that 
day,  so  that  his  vehicle  does  not  reach  the 
car  until  the  next  morning.  Normile  v. 
Northern  P.  R.  Co.  36  Wash.  21,  77  Pac. 
1087,  67:  271 

c.  Misdelivery;  Wrongful  Delivery. 

Punitive  Damages  for  Delivery  at  Wrong 

Landing,  see  Damages,  85. 
Allegations  as  to,  see  Pleading,  284. 
For  Editorial  Notes,  see  infra,  IV.  §§  39,  44. 

To  impostor. 

For  Editorial  Notes,  see  infra,  IV.  §  44. 

807.  An  express  company  is  not  relieved 
from  liability  for  the  delivery  of  a  package 
of  money  to  an  impostor  representing  that 
he  is  the  consignee,  by  the  fact  that  sucu 
impostor  telegraphed  for  such  money  in  the 
name  of  the  consignee  and  a  reply  to  the 
latter  was  delivered  to  such  impostor,  and 
that  the  sender  of  the  money  believed  that 
the  telegram  was  from  the  person  by  whom 
it  purported  to  have  been  sent.  Pacific  Exp. 
Co.  V.  Shearer,  160  111.  215,  43  N.  E.  816, 

37:  177 


896 


CARRIEHS,  II.  b.  4. 


To  oflScer. 

For   I'^di tonal  Notes,  see  infra,  IV.  §  40. 

808.  Seizure  of  property  in  the  course  of 
transportation,  by  an  officer  without  any 
warrant  or  other  legal  process,  does  not  ex- 
cuse the  carrier  for  nondelivery.  Bennett 
V.  American  Exp.  Co.  83  Me.  236,  22  Atl.  159, 

13:  33 
To  one  having  title  paramount. 
Burden  of  Proving  Ownership,  see  Evidence, 

605. 
For  Editorial  Notes,  see  infra,  IV.  §  36. 

809.  The  fact  that  goods  <vere  taken  from 
the  possession  of  a  carrier  by  one  having 
title  paramount  to  that  of  the  consignor  is 
a  good  defense  to  an  action  by  the  consignee 
or  the  indorsee  of  the  bill  of  lading  for  the 
nondelivery  of  the  property.  National  Bank 
of  Commerce  v.  Chicago,  B.  &  N.  R.  Co.  44 
Minn.  224,  46  N.  W.  342,  560,  9:  263 
To  holder  of  bill  of  lading  or  consignee. 
For  Editorial  Notes,  see  infra,  IV.  §  44. 

810.  A  carrier  must  deliver  goods  to  the 
true  owner,  claiming  under  the  consignee, 
when  it  has  notice  of  the  true  owner's  rights, 
and  the  bill  of  lading  has  alrendy  been  sur- 
rendered. National  Newark  Bkg.  Co.  v.  Del- 
aware, L.  &  W.  R.  Co.  (N.  J.  Err.  &  App.) 
70  N.  J.  L.  774,  58  Atl.  311,      "  66:  595 

811.  A  carrier  is  an  insurer  of  the  safe  de- 
livery of  the  goods  to  the  person  to  whom 
they  are  consigned.  Pacific  Exp.  Co.  v. 
Shearer,  160  III.  215,  43  N.  E.  816,       37:  177 

812.  No  fraud  or  imposition  practised  up- 
on a  carrier,  and  no  mistake  of  the  carrier  or 
its  agent,  however  satisfactory  the  circum- 
stances of  identification  may  be,  will  relieve 
the  carrier  from  liability  for  delivery  of  the 
goods  to  a  person  other  than  the  one  to 
whom  they  are  consigned.  Id. 

813.  A  railroad  company  is  not  liable  for 
delivery  to  the  consignee,  to  whom  goods  are 
billed,  without  notice  to  it  that  the  bill  of 
lading  has  been  forwarded  to  a  bank  with  a 
draft  attached  for  collection,  although  the 
bill  of  lading  is  not  produced.  Nebraska 
Meal  Mills  v.  St.  Louis  S.  W.  R.  Co.  64  Ark, 
169,  41  S.  W.  810,  38:  353 

814.  The  right  of  a  carrier  to  deliver  to  the 
consignee  is  not  affected  by  the  Arkansas 
statute  declaring  bills  of  lading  negotiable, 
and  that  any  person  to  whom  the  same  are 
transferred  shall  be  held  the  owner  so  far 
as  to  give  validity  to  any  pledge,  lien,  or 
transfer  upon  the  faith  thereof,  and  that  no 
property  specified  therein  shall  be  delivered 
except  on  the  surrender  and  cancelation  of 
the  bill  of  lading, — except  in  cases  where  the 
bill  of  lading  has  been  transferred.  Id. 

815.  A  local  custom  to  deliver  goods  to 
any  person  who  holds  the  bill  of  lading,  but 
which  is  not  a  general  custom,  does  not  bind 
a  shipper  who  takes  a  bill  of  lading,  naming 
himself  as  consignee. — at  least  if  he  has  no 
knowledge  of  it.  Wevand  v.  Atchison,  T.  & 
S.  F.  R.  Co.  75  Iowa,  573,  39  N.    VV.  899, 

1:  650 

816.  Where  a  shipper  takes  a  bill  of  hid- 
ing for  the  delivery  of  goods  to  himself,  the 
carrier  is  liable  for  delivery  to  another  per- 


son on  bis  mere  presentation  of  the  bin  of 
lading  unindorsed.  Id. 

817.  A  written  order  signed  by  one  of  the 
partners  of  a  firm  to  which  a  bill  of  lading 
has  been  indorsed,  directing  the  carrier  to 
make  delivery  of  the  goods  to  another  per- 
son, is  sufficient  to  justify  the  carrier  in  do- 
ing so,  although  the  signer  privately  intend- 
ed it  as  his  individual  act,  if  this  was  not 
known  to  the  carrier  and  the  circumstances 
justified  treating  it  as  an  act  of  the  partner- 
ship. Chicago  Packing  &  P.  Co.  v.  Savannah, 
F.  &  'W.  R.  Co.  103  Ga.  140,  29  S.  E.  698, 

40:  367 

818.  The  delivery  of  goods  by  a  carrier  at 
destination,  without  requiring  the  surrender 
of  a  bill  of  lading,  as  required  by  a  stipula- 
tion therein,  does  not  involve  any  breach  of 
duty  to  the  consignor,  if  the  delivery  is  made 
to  the  consignee,  or  upon  his  ordar,  or  by 
his  authority.  Id. 

819.  A  railroad  company  tno  whose  com- 
press cotton  is  shipped  on  a  through  bill  of  < 
lading,  a  manifest  of  which  accompanies  the 
property  consigned  to  "order  notify"  con- 
signor, is  liable  to  the  holder  of  the  bill  of 
lading  for  the  loss  thereby  inflicted  on  him 
in  case  the  cotton  is  delivered  from  the 
compress  to  a  third  person  unaer  direction  of 
the  consignor.  Southern  R.  Co.  v.  Atlanta 
Nat.  Bank,  50  C.  C.  A.  558,  112  Fed.  861, 

56:  546 

820.  A  carrier  which  issues,  in  exchange 
for  bills  of  lading  surrendered  to  it,  orders 
directing  the  delivery  of  grain  en  route  to 
certain  purchasers,  or  the  consignee  or  his 
order,  on  presentation  of  the  orders,  and 
stamps  across  the  face  of  them  a  statement, 
signed  by  its  agent,  that  cars  are  to  be  de- 
livered on  them  the  same  as  on  the  bills  of 
lading  taken  up,  is  thereby  charged  with  no- 
tice of  the  rights  of  a  bank  to  whom  the 
orders  are  transferred  upon  the  indorsement 
of  the  consignee,  and  is  liable  to  it  in  an 
action  for  the  conversion  of  the  grain  by 
delivering  it  to  the  purchasers  from  the  con- 
signee, upon  the  latter's  written  instructions, 
■iyithout  a  presentation  of  the  orders.  Na- 
tional Newark  Bkg.  Co.  v.  Delaware,  L.  & 
W.  R.  Co.  (N.  J.  Err.  &  App.)  70  If.  J.  L. 
774,  58  Atl.  311,  66:  595 

821.  Where  parties  made  a  contract  in 
their  own  names  with  a  carrier  for  the  de- 
livery of  goods  to  themselves,  any  delivery 
by  the  carrier  to  a  purchaser,  before  the 
shippers  have  parted  with  the  right  of  pos- 
session, is  at  the  carrier's  own  risk;  and  it 
d.oes  not  devolve  on  the  carrier  to  decide 
whether  by  the  contract  of  purchase  the 
purchaser  was  entitled  to  the  delivery,  or 
not.  Wolfe  V.  Missouri  P.  R.  Co.  97  Mo".  473, 
11  S.  W.  49,  3:539 
To  purchaser  before  payment. 

822.  Where  a  carrier  by,  whom  goods  sold 
are  shipped  to  be  delivered  to  the  vendee  up- 
on the  payment  of  the  purchase  money  neg- 
ligently delivers  the  goods  before  such  pay- 
ment, neither  the  carrier  nor  the  vendor  can 
recover  the  goods  from  a  bona  fide  purchaser 
from  the  vendee.  Norfolk  S.  R.  Oo.  v. 
Barnes,  104  N.  C.  25,  10  S.  E.  83,       5:  611 


CARRIERS,  11.  b,  5. 


397 


d.  Time;  Delay. 

PreJHdicial  Error  in  Admitting  Opinion  as  to 

Delay,  see  Appeal  and  Error,  925. 
Presumption  as  to,  see  Evidence,  491,  492. 
Delay    by    Strike,    Evidence    of    Means    to 

Avoid  Effects  of,  see  Evidence,  2017. 
Interest  on  Damages  Allowed  for  Delay,  see 

Interest,  31. 
Question  for  Jury  as  to,  see  Trial,  306. 
See  also  supra.  7*99,  801,  804-80B. 
For  Editorial  Notes,  see  infra,  IV.  §§  39,  42, 

43. 

823.  It  is  the  duty  of  a  common  carrier  to 
whom  goods  are  delivered  for  transporta- 
tion, to  forward  them  promptly,  and  with- 
out unreasonable  delay,  to  their  destination. 
Bibb  Broom  Ck)rn  Co.  v.  Atchison,  T.  &  S.  F. 
R.  Co.  91  Minn.  269,  102  N.  W.  709,    69:  509 

824.  Accidents  and  obstructions,  although 
excusing  a  carrier's  delay,  do  not  pTit  an  end 
to  the  contract,  which  must  be  completed  as 
soon  as  the  impediment  to  transportation  is 
removed  or  can  reasonably  be  overcome. 
Baltimore  &  O.  R.  Co.  v.  O'Donnell,  47  Ohio 
St.  489,  32  N.  E.  476,  ?.1:1I7 

825.  A  carrier  sued  for  failure  to  deliver 
freight  in  proper  time,  according  to  con- 
tract, may  show,  as  a  defense,  an  impossi- 
bility to  deliver  the  freight  before  it  did  so, 
because  of  a  strike  on  the  road  and  a  conse- 
quent interference  with  its  operation.  In- 
ternational &  G.  N.  R,  Co.  V.  Tisdale,  74 
Tex.  8,  11  S.  W.  900,  4:  545 

826.  The  service  of  a  garnishee  summons 
upon  a  carrier  after  goods  have  been  received 
and  placed  in  a  car  for  interstate  transpor- 
tation, although  the  car  has  not  yet  been 
put  into  the  train,  does  not  excuse  the  car- 
rier from  its  duties  as  such,  or  authorize  un- 
reasonable delay  in  forwarding  the  property 
to  its  destination.  Baldwin  v.  Great  North- 
em  R.  Co.  81  Minn.  247,  83  N.  W.  986, 

51:640 
Injuries  due  to  delay. 

Measure  of  Damages  for,  see  Damages,  233. 
Delay   as   Proximace   Cause  of  Injury,  see 
Proximate  Cause,  64. 

827.  A  carrier  who  negligently  and  care- 
lessly delays  a  shipment  is  liable  for  the 
loss,  where  the  goods  are  overtaken  in  tran- 
sit and  damaged  by  an  act  of  God  which 
would  not  have  caused  the  damage  had 
there  been  no  delay,  even  though  the  act  ot 
God  could  not  reasombly  be  anticipated; 
and  this  is  true  whether  the  goods  are  in 
tbeir  mture  perishable  or  nonperishable. 
Bibb  Broom  Corn  Co.  v.  Atchison,  T.  &  S.  P. 
R.  Co.  91  Minn.  269,  102  N.  W.  709,     69:  509 

828.  A  carrier  who  accepts  for  transporta- 
tion an  article  liable  to  be  innired  bv  freez- 
ing unfler  a  special  contract  for  delivery  to 
a  connectin?  line  by  a  fixed  time,  and  who 
negligently  delays  delivery  to  the  connecting 
line,  will  be  liable  for  damasres  occasioned 
by  freezing  on  the  connecting  line,  in  conse- 
quence of  such  delay,  where  such  freezing 
was  reasonably  to  be  anticipfted  and  was 
contemnlated  bv  the  parties.  Fox  v.  Boston 
&  M.  R.  Co.  l'48  Mass.  220,   19  N.   E.  222, 

1:  702 

829.  Delay  by  the  initial  carrier  in  the 


transportation  of  goods  at  a  season  when 
weather  conditions  would  naturally  produce 
deterioration  in  their  quality,  which  may 
have  aided  in  causing  the  damaged  condition 
in  which  they  were  delivered  to  the  coi\pign- 
ee,  will  render  it  liable  for  the  loss  unless 
it  shows  that  its  delay  did  not  produce 
the  injury  in  whole  or  in  part,  although  de- 
lay by  a  connecting  carrier  is  also  shown, 
which  might  have  Caused  or  contributed  to 
the  injury.  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Coolid^,  73  ArK.  112,  83  S.  W.  333,    67:  555 

830.  Delay  in  the  transportation  of  goods, 
which  is  caused  solely  by  a  mob,  will  not 
render  the  carrier  liable  at  common  law  to 
make  good  losses  arising  from  a  decline  in 
the  market  price,  or  from  the  deterioration 
in  their  quality  on  account  of  their  perish- 
able nature,  during  time  of  transit.  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Levi,  76  Tex.  337,  13  S. 
W.  191,  8:  323 
Suspension  of  business  during  holiday. 

831.  A  custom  to  suspend  business  on  the 
4th  of  July  is  not  unreasonable  even  when 
applied  to  the  delivery,  by  a  carrier,  of  per- 
ishable freight  on  that  day;  although  the 
weather  in  the  locality  is  usually  very  warm 
at  that  time  of  the  vear.  Pennsylvania  R. 
Co.  V.  Naive,  112  Tenn.  239,  79  S.  W.  124, 

64:  443 

832.  A  custom  to  suspend  business  on  a 
holiday  does  not  violate  the  duty  imposed 
by  contract,  common  law,  or  statute,  upon  a 
carrier  to  transport  goods  delivered  to  it 
to  their  destination,  according  to  its  regular 
course  of  business,  with  all  reasonable  de- 
spatch, and  to  give  prompt  notice  to  the  con- 
signee of  their  arrival.  Id. 

833.  A  carrier  is  not  guilty  of  negligence 
in  failing  to  notify  a  consignee  of  the  arrival 
of  perishable  goods  on  a  legal  holiday,  where, 
by  general  custom  of  the  locality,_all  busi- 
ness is  suspended  on  that  aay.  Id. 

834.  One  consigning  goods  to  his  agents  in 
another  city,  for  sale,  is  bound  to  take  no- 
tice of  a  certain,  well-established,  and  gen- 
eral custom  in  force  there,  that  business  will 
be  suspended  on  a  certain  holiday,  so  that 
he  cannot  hold  the  carrier  liable  for  failure 
to  make  delivery  of  the  consignment  on  that 
day.  Id. 

835.  When  perishable  freight  in  posses- 
sion of  a  railway  company  for  transporta- 
tion reaches  its  destination  in  the  evening 
before  a  general  holiday,  when  all  business 
will  be  suspended,  too  late  for  delivery  that 
night,  at  a  time  of  year  when,  unless  cared 
for,  it  will  be  likely  to  spoil  before  it  can 
be  delivered,  the  company  is  bound  to  use 
the  facilities  at  hand  to  prevent  that  re- 
sult, and  it  will  be  liable  for  loss  occasioned 
by  its  failure  to  do  so.  Id- 

5.  Liability  and  Lien  for  Freight  Charges; 
Rates. 

Regulation  of  Freight  Rates,  see  infra,  III. 
c. 

Recovery  Back  of  Overcharge,  see  Assump- 
sit,* 31,  32. 

Charges  on  Interstate  Business,  see  C<Ma»- 
merce,  53-61. 


898 


CARRIERS,  II.  b.  6. 


Evidence  of  Paj'ment  of  Charges,  see  Evi- 
dence, 970. 
Parol  Evidence  as  to  Amount,  see  Evidence, 

1072,  1095. 
Effect  of  Garnishment  on  Right  to  Payment, 

^ee  Garnishment,  IC. 
Limitation  of  Action  to  Recover  Excess  Paid, 

see  Limitation  of  Actions,  111-113. 
Allegation  of  Over  Charge,  see  Pleading,  34. 
Quo  Warranto  as  Remedy  against  Unlawful 

Charges,  see  Quo  Warranto,  9. 
Receiver's  Power  to  Contract  for  Rebate,  see 

Receivers,  63.  ' 

Necessity  of  Tendering  Charges,  see  Trover, 

32. 
See  also  supra,  764,  787;  Sale,  156. 
For  Editorial  Notes,  see  infra,  IV.  §§  5,  40. 

836.  A  statute  requiring  a  railroad  com- 
pany to  deliver  freight  carried  by  it  upon 
any  track  it  owns  or  can  use  does  not  de- 
prive it  of  the  right  to  make  a  charge  from 
a  "hold  track"  to  a  point  designated  after 
the  freight  reaches  the  hold  track.  State 
ex  rel.  Crow  v.  Atchison,  T.  &  S.  F.  R.  Co. 
176  Mo.  687,  75  S.  W.  776,  63:  761 
Right  to  full  rates. 

In  Matters  Affecting  Interstate  Commerce, 
see  Commerce,  53,  54. 

837.  A  consignee,  though  a  factor  only,  is 
liable  for  any  balance  of  freight  due,  accord- 
ing to  the  statements  of  the  bill  of  lading, 
on  account  of  the  excess  of  the  real  value  of 
the  goods  over  that  named  in  the  bill  of  lad- 
ing, which  was  known  to  him  but  concealed 
from  the  carrier,  although  on  delivery  of  the 
goods  he  paid  all  the  freight  which  the  car- 
rier then  supposed  to  be  due.  North  German 
Lloyd  v.  Henle,  44  Fed.  100,  10:  814 

838.  An  express  company  which  has  car- 
ried a  package  of  United  States  bonds  of 
much  greater  value  than  it  was  represented 
to  be,  and  at  the  rate  chargeable  for  a  pack- 
age of  the  value  represented,  cannot  recover 
the  additional  compensation  which  would 
have  been  charged  for  the  package  if  its 
true  value  had  been  stated,  since  its  liability 
cannot  exceed  the  value  represented,  but  is 
entitled  to  compensation  for  the  increase  of 
the  risk  of  loss  up  to  that  amount  by  rea- 
son of  the  greater  value  of  the  package. 
United  States  Exp.  Co.  v.  Koerner,  65  Minn. 
540,  68  N.  W.  181,  33:  600 
Lien  generally. 

Effect   of,   on   Right  of  Stoppage  in  Tran- 

ftifua,  see  Sale,  158-160. 
For  Editorial  Xotos,  see  infra,  TV.  §§  43,  47. 

839.  The  lien  of  a  common  carrier  for  his 
charges  upon  pro]>erty  carried  is  not  de- 
featetl  by  an  assignment  made  for  the  benefit 
of  creditors  by  the  owner  of  the  property 
shipped.  Cave  v.  Fabel,  108  Ky.  124,  55  S. 
W.  887,  49:  251 

840.  A  fund  arisinsr  from  the  collection,  by 
an  assifrnee  for  creditors,  of  money  on  a  con- 
tract, in  the  porfnrninnce  of  which  property 
subject  to  a  carrier's  lien  has  been  used,  is 
char'Tcable  with   such  lien.  Id. 

841.  A  carrier  which  received  gomls  from 
anotlier  carrier,  with  the  knowledge  that 
the  shipper  has  directed  shipment  by  the 
first  carrier  over  a  different  connecting  route, 
has  r.o  carrier's  lien  upon  the  goods,  either 


for  its  own  charges  or  for  charges  advanced 
to  the  first  carrier;  and  proof  of  a  contract 
between  the  two  carriers  systematically  to 
disregard  shipping  directions  obviates  the 
necessity  of  specific  proof  of  different  ship- 
ping directions  in  the  case  in  suit.  Hid  v, 
Denver  &  R.  G.  R.  Co.  13  Colo.  35,  21  Pac. 
914,  4:  376 

842.  A  railroad  company  receiving  horses 
from  a  connecting  line,  with  notice  that  the 
shipper  has  attempted  to  prepay  the  freight 
for  the  whole  transportation  but  has  not 
paid  it  in  full  at  the  regular  rates,  and  also 
that  he  contemplates  a  continuous  and 
speedy  passage,  has  the  right  to  carry  the 
horses  through  to  their  destination,  and 
claim  a  lien  on  them  for  the  balance  of  the 
freight.  Crossan  v.  New  York  &  N.  E.  R. 
Co.  149  Mass.  196,  21  N.  E.  367,  3:  766 

843.  A  common  carrier  waives  his  right 
to  detain  goods  for  the  freight  if  he  puts 
his  refusal  to  deliver  them  to  the  owner  up- 
on the  ground  that  they  are  not  in  his 
possession  at  the  place  where  a  demand  is 
duly  made.  Adams  Exp.  Co.  v.  Harris,  120 
Ind.  73,  21  N.  E.  340,  7:  214 
Effect  of  delivery  on  lien. 

See  also  infra,  967. 

844.  A  delivery  by  a  common  carrier,  to  an 
assignee  for  creaitors,  of  property  subject  to 
the  carrier's  lien,  is  for  the  benefit  of  all 
creditors,  including  the  carrier,  according  to 
their  respective  interests,  and  does  not  de- 
feat the  carrier's  right  to  be  paid  out  of 
the  proceeds  of  the  property.  Caye  v.  Fabel. 
108  Ky.  124,  55  S.  W.  887,  49:  251 

845.  If  a  consignee  of  goods  shipped  by 
rail  obtains  possession  of  them  through  the 
negligence  of  the  railroad  company,  without 
paying  the  freight  charges,  and  sells  them 
to  a  bona  fide  purchaser  for  value,  the  com- 
pany cannot  enforce  its  lien  for  freight 
against  the  goods  in  the  hands  of  such  pur- 
chaser. Norfolk  S.  R.  Co.  v.  Barnes,  104  N. 
C.  25,  10  S.  E.  83,  5:  611 

6.  Carrying  Live  Stock. 

Shipper  of  Stock  as  Passenger,  see  supra,  78, 
79. 

Pass  to  Shipper,  see  supra,  627,  628. 

Limiting  Liabilitv  for  Injury  to  Shipper,  see 
supra,  667,  668. 

Injury  to  Shipper,  see  supra,  277,  322. 

State  Requirement  of  llouble-Decked  Cars 
for  Sheep,  see  Commerce,  70. 

Prohibition  as  to  Transportation  as  Affect- 
ing Commerce,  see  Commerce,  44. 

Requiring  Free  Transportation  of  Shippers, 
see  Constitutional  Law,  420. 

Measure  of  Damages  for  Injury,  see  Dam- 
ages, 238,  239. 

Judicial  Notice  as  to  Shipper  Accompanying 
Stock,  see  Evidence,  80. 

Burden  of  Proof  as  to,  see  Evidence,  485,  492. 

Evidence  of  Custom  as  to,  see  Evidence, 
1724,  1725. 

Pleading  in  Action  for  Injury  to,  see  Plead- 
ing, 280.  332,  362. 

Partial  Tnvaliditv  of  Statute  as  to,  see 
Statutes.    11.3. 

Question  for  Jury  as  to,  see  Trial,  306,  308. 


CARRIERS,  11.  b.  6. 


399 


See  also  supra,  842;  infra,  910,  917,  918,  922, 

925,  931.  932,  950.  987,  992. 
For  Editorial  Notes,  see  infra,  IV.  §§  30,  39. 

846.  A  custom  of  railroads  not  to  receive 
for  transportation  any  live  stock  unless  un- 
der certain  conditions  nioiiif^iing  their  com- 
mon-law liability  would  be  contrary  to  law 
and  public  policv.  Missouri  P.  R.  Co.  v. 
Fagan,  72  Tex.  127,  9  S.  W.  749,  2:  75 

847.  A  carrier  is  not  an  insurer  of  live 
stock,  but  must  provide  suitable  means  for 
its  conveyance,  and  use  all  reasonable  dili- 
gence and  forethought  in  the  varying  cir- 
cumstances arising  in  the  business.  Coup- 
land  v.  Housatonic  R.  Co.  61  Conn.  531,  23 
Atl.  870,  15:  534 

848.  A  shipper  of  cattle  is  entitled  to  re- 
cover from  the  carrier  for  a  loss  in  value  of 
the  stock  caused  by  the  gross  negligence  and 
carelessness  of  the  agent  of  the  carrier  in 
handling  and  transporting  the  cal^Ie,  con- 
sisting of  unnecessary  delay  in  their  trans- 
portation, the  needless  confinement  of  the 
cattle  in  the  cars  of  the  company  at  the 
different  stations  on  the  road,  and  the  bruis- 
ing and  bumping  of  the  stock,  to  which  they 
are  subjected  by  the  improper  transporta- 
tion by  the  company.  Good  v.  Galveston,  H. 
&  S.  A.  R.  Co.  (Tex.)  11  S.  W.  854,  4:  801 
Salt  water  in  shipping  pens. 

849.  The  knowledge  of  the  sellers  of  live 
stock  to  be  delivered  in  the  shipping  pen  of 
a  railroad,  of  the  existence  of  salt  water 
therein,  does  not  charge  the  buyer,  who  has 
contracted  for  their  transportation,  with 
contributory  negligence  precluding  recovery 
for  damages  to  stock  from  drinking  such 
water.  Harman  v.  Norfolk  &  W.  R.  Co. 
91  Va.  601,  22  S.  E.  490,  44:  289 

850.  Permitting  salt  water  to  run  through 
pens  provided  by  a  carrier  of  live  stock  to 
facilitate  sihipments,  so  that  it  is  accessible 
to  animals  placed  in  the  pens,  is  negligence 
which  will  render  the  carrier  liable  for  inju- 
ries caused  to  animals  placed  in  the  pens  for 
shipment,  by  drinking  of  the  water.  Id. 
Safety  of  cars. 

Opinion  Evidence  as  to,  see  Evidence,  1388. 

851.  Injuries  to  live  stock  by  the  break- 
ing of  Dars  or  slats  of  a  car.  although  caused 
by  the  crowding  or  kicking  of  the  stock,  if 
this  is  not  beyond  the  ordinary  and  normal 
conduct  of  such  stock,  will  render  the  car- 
rier liable.  Betts  v.  Chicago,  R.  I.  &  P.  R. 
Co.  92  Iowa,  343,  60  N.  W.  623,  26:  248 

852.  A  carrier  is  liable  for  injuries  to  live 
stock  carried  by  it,  if  it  fails  to  provide  cars 
reasonably  safe  to  transport  it,  in  view  of  its 
natural  propensities;  but  not  for  those  oc- 
curring in  a  reasonably  safe  car,  because  of 
such  propensities.  .  Id. 

853.  The  risk  of  shipping  a  horse  in  a  com- 
mon Lux  freight  car,  the  roof  of  which  is  so 
low  that  a  horse  on  lifting  its  head  is  liable 
to  strike  it  and  which  has  no  stalls  or  par- 
titions, is  assumed  by  the  shipper,  if  the  car 
is  suitable  for  the  ordinary  business  of 
transporting  Ivorses  of  the  value  of  that 
.shipped,  where,  with  knowledge  that  special 
cars  oould  be  had  for  a  reasonable  additional 
price,  he  acquiesced  in  the  use  of  the  car  and 
attempted  to  remedy  the  defects  by  padding 


the  rafters  of  the  car  and  placing  a  stuffed 
hood  upon  the  horses.  Coupland  v.  Housa- 
tonic R.  Co.  61  Conn.  531,  23  Atl.  870, 

15:  534 
Caring  for,  during  transit. 
Right  to  Contract  as  to,  see  Commerce,  49a. 
For  Editorial  Notes,  see  infra,  IV.  §  39. 

854.  A  carrier  which,  with  knowledge  that 
a  shipper  of  live  stock  has  faiicd  to  furnish 
a  care  taker  as  agreed,  proceeds  under  the 
shipping  contract,  is  liable  for  any  loss  re- 
sulting from  its  failure  to  provide  the  stock 
with  proper  care  and  protection.     Chicago, 

B.  &  Q.  R.  Co.  V.  Williams,  61  Neb.  608,  85 
N.  W.  832,  55:289 

855.  A  carrier  is  liable  for  the  loss  of 
stock  which  die  or  are  injured  for  want  of 
proper  care  and  protection  while  in  tran- 
sit, where  the  shipper  has  not  agreed  to  fur- 
nish a  care  taker.  Td. 

856.  A  carrier  has  the  duty  to  feed  and 
water  stock  during  transportation,  and  can- 
not transfer  it  to  the  shipper  by  a  custom 
requiring  him  to  go  along  on  the  same  train 
with  the  stock  to  feed  and  water  them  at 
his  own  risk  and  expense.  Missouri  P.  R. 
Co.  V.  Fagan,  72  Tex.  127,  9  S.  W.  749, 

2:75 

857.  Failure  of  a  shipper  to  comply  with 
his  agreement  to  furnish  a  man  to  feed,  wa- 
ter, and  care  for  his  live  stock  in  transit 
will  not  relieve  the  carrier  from  liability 
for  injury  caused  by  their  falling  into  a  hole 
in  the  car  floor  due  to  its  decayed,  weaic, 
and  unsafe  condition.  Lake  Erie  &  W.  R. 
Co.  V.  Holland,  162  Ind.  406,  69  N.  E.   138, 

03:  94S 

858.  Under  Tex.  Rev.  Stat.  art.  2S4,  pre- 
scribing  a  penalty  to  be  recovere.l  by  the 
owner  against  a  carrier  who  shall  fail  suffi- 
ciently to  feed  and  water  live  stock  during 
transportation  and  until  delivery,  in  order 
to  authorize  a  recovery  of  such  penalty  the 
statutory  grounds  must  be  particularly  set 
forth  and  clearly  established  l)V  proof. 
Good  V.  Galveston,  H.  &  S.  A.  R.  Co.  (Tex.) 
11  S.  W.  854,  4:  801 
Sidetracking  car  containing. 

859.  A  car  containing  a  horse  should  be 
set  on  a  side  track  at  the  request  of  the 
owner  of  the  horse  or  his  agent,  when  the 
persons  in  charge  of  the  train  are  informed 
that  the  horse  is  frightened  by  the  transpor- 
tation and  is  acting  badly  and  in  danger  of 
being  killed  or  hurt,  if  it  can  reasonably  be 
done.  Coupland  v.  Housatonic  R.  Co.  61 
Conn.  531,  23  Atl.  870,  15:  534 

80'J.  There  is  no  obligation  on  a  railroad 
company  to  lay  out  for  reloading  a  car  hired 
at  a  certain  price  for  the  trip  and  partly 
filled  with  horses,  because  one  of  them  has 
got  down  in  the  car,  when  the  owner  is 
with  them,  and,  under  the  contract,  is 
chargeable  with  their  care,  and  can.  if  he 
chooses,  abandon  the  contract  altogether  or 
make  a  new  one  for  a  longer  time.    Illinois 

C.  R.  Co.  V.  Petersen.  68  Miss.  454,  10  So. 
43,  14:  550 
Necessity  of  unloading  during  transit. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws. 

201. 
For  Editorial  Notes,  see  infra,  IV.  §  39. 


400 


CARRIERS,  II.    b,  7. 


861.  Failure  of  a  railroad  company  to  pro- 
vide suitable  and  safe  facilities  for  loading 
and  unloading  stock,  and  also  for  water- 
ing and  leading  them,  whiie  being  carried 
over  its  line  of  road,  is  negligence  against 
which  a  common  carrier  is  not  permitted  to 
contract.  Chesapeake  &  O.  R.  Co.  v,  Amer- 
ican Exch.  Bank,  92  Va.  495,  23  S.  E.  935, 

44:  449 

862.  Horses  and  mules,  as  well  as  ari- 
mals  intended  for  food  are  within  the  provi- 
sions of  U.  S.  Rev.  Stat.  §  4386,  U.  S.  Comp. 
Stat.  1901,  p.  2995,  requiring  "cattle,  sheep, 
swine,  or  other  animals,"  when  carried  from 
one  state  to  another  to  be  unloaded  for  rest, 
water,  and  feeding,  if  confined  for  twenty- 
eight   hours.  lu. 

863.  "Other  accidental  causes"  within  the 
meaning  of  U.  S.  Rev.  Stat.  §  4386,  U.  S. 
Comp.  Stat.  1901,  p.  2996,  making  a  rail- 
road company  liable  for  failure  to  unload 
cattle  when  confined  tor  twenty-eight  hours, 
unless  prevented  by  ."storm  or  other  acci- 
dental causes,"  must  be  taken  to  mean  oth 
er  inevitable  accidental  causes.  Id. 
Unloading   at   destination. 

864.  A  rule  of  a  carrier,  known  to  the 
shipper,  requiring  the  latter  to  unload  live- 
stock from  the  cars,  will  not  override  an  ex- 
press contract  placing  that  duty  on  the  car- 
rier. Benson  v.  Gray,  154  Mass.  391,  28  N.  E. 
275,  13:  262 

865.  A  contract  by  a  railroad  company  for 
the  transportation  of  horses  and  their  deliv- 
ery at  its  depot,  providing  for  their  storage 
unless  called  for,  and  containing  stipulations 
in  relation  to  unloading  which  imply  that 
the  company  will  unload  them,  requires  the 
company  to  unload  the  horses  at  the  place 
of  destination,  notwithstanding  a  usage  of 
its  agent  there,  known  to  the  shipper,  of 
requiring  owners  of  animals  to  unload  them. 

Id. 
Communicati'on  of  disease  to. 
Liability  for  Communication  from  Diseased 
Cattle,  see  Animals,  55,  56. 

866.  The  communication  of  Texas  fever  by 
infected  cars  to  cattle  transported  in  them 
renders  the  railroad  company  liable  for  the 
damages.  Illinois  C.  R.  Co.  v.  Harris,  184 
111.  57,  56  N.  E.  316,  "  48:  175 

7.  Stipulations  to  Limit  Liability. 

a.  In  GeneraL 

As  toTJaggage,  see  supra,  11.  a,  12,  e. 

As  to  Piissengers,  see  supra,  II.  a,  10,  f. 

As  to  Personal  Injury  to  Shipper,  see  supra, 

667,  668. 
Prohibition    against,  as    Interference    ■;vith 

Commerce,  see  Commerce,  62-68. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

91-96.  ^    ' 

Construction   of  Contract   as   to,   see   Con- 
tracts, 327. 
Validity  of  Stipulation  against  Liability  for 

Fires,  see  Contracts,  453—459. 
Presumption     of    Shipper's     Knowledge     of 

Terms  of  Receipt,  see  Evidence,  301. 
Conclusiveness  of  Foreign   .ludgment  as  to 

Validity  of,  see  Judgment,  346. 


Admission  of  Truth  of  Plea  as  to,  see  Plead- 
ing, 610. 

Limitation  of  Liability  of  Vessel  Owner,  see 
Shipping,  I. 

By  Telegraph  Company,  see  Telegraphs,  II. 
c. 

See  also  infra,  999,  1001. 

For  Editorial  Notes,  see  infra,  IV.  §§  37,  39. 

867.  To  be  valid,  a  contract  restricting  a 
carrier's  liability  must  be  fairly  obtained, 
just,  and  reasonable.  Louisville  &  N.  R.  Co. 
V.  Gilbert,  88  Tenn.  430,  12  S.  W.  1018, 

7:  162 

868.  Contract  limitations  of  a  carrier's  lia- 
bility, being  in  derogation  of  the  common 
law,  are  strictly  construed  in  favor  of  the 
shipper,  and  are  never  enforced  unless  shown 
to  be  reasonable.  Parker  v.  Atlantic  Coast 
Line  R.   Co.    133  N.   C.   335,  45   S.   E.   658, 

63:  827 

869.  A  statute  forbidding  common  carriers 
within  the  state,  on  land  or  in  boats  or  ves- 
sels on  waters  entirely  within  the  body  of 
the  state,  to  limit  or  restrict  their  liability 
as  it  exists  at  common  law,  applies  to  ship- 
ments purely  domestic,  beginning  and  end- 
ing in  the  state.  Missouri  P.  R.  Co.  v.  Sher- 
wood, 84  Tex.  125,  19  S.  W.  455,       17:  643 

870.  A  shipper  of  goods  who  fills  out  one 
of  tne  blank  receipts  contained  in  a  book 
previously  furnished  by  an  express  company 
for  his  use,  and  obtains  the  signature  of  the 
company's  agent  thereto  upon  delivering  to 
him  a  package  for  transportation,  will  be 
presumed  to  know  the  contents  of  the  re- 
ceipt; and,  if  he  receives  such  receipt  with- 
out objection,  his  assent  to  its  conditions 
will,  in  the  absence  of  fraud,  be  conclusively 
presumed.  Durgin  v.  American  Exp.  Co.  66 
N.  H.  277,  20  Atl.  328,  9:  453 
Assent  by  shipper;  reduced  rates. 
Evidence  as  to  Choice  of  Modes  of  Shipment, 

see  Evidence,  2085. 
Drayman's  Authority  to  Assent  for  Shipper, 

see  Principal  and  Agent,  14. 
See   also  infra,   887,   894,  899-906,  911-919, 

923-930,  939,  941,  942. 
For  Editorial  Notes,  see  infra,  TV.  §  37. 

871.  A  railroad  company  operating  a  line 
of  railroad  in  Nebraska  is  a  common  carrier, 
and  cannot,  under  the  provisions  of  the  Con- 
stitution, limit  its  liability  as  such  bv  sne- 
cial  agreement  with  a  shipper.  Missouri  P. 
R.  Co.  V.  Vandeventer,  26  Neb.  222,  41  N.  W. 
998,  3:  129 

872.  A  railroad  companv  in  the  carriage 
of  goods  is  subject  to  the  liability  of  a  com- 
mon carrier,  and  must  answer  for  all  losses 
not  occasioned  by  the  act  of  Ood  or  the  pub- 
lic enemy,  and  cannot,  in  Nebraska,  by  spe- 
cial contract  limit  or  relieve  itself  from  this 
liabilitv.  St.  Joseph  &  P..  L  R.  Co.  v.  .Pnlni- 
er,  38  Neb.  463.  56  N.  W.  957,  22:  335 

873.  A  railroad  company  may,  by  special 
contract,  limit  its  liability  to  the  owner  of 
stock  or  goods,  so  Ions  as  the  limitation  does 
not  relate  to  its  liability  for  negligence  or 
misconduct.  Atchison,  T.  &  S.  F,  R.  Co.  v. 
Temple,  47  Kan.  7,  27  Pac.  98,  13:  362 

874.  It  is  lawful  for  a  carrier  to  limit,  by 
special  contract,  his  common-law  liability, 
and  he  may  thereby  exempt  himself  from 


CARRIERS.  II.  b.  7. 


401 


liability  for  any  loss  resulting  otherwise 
than  by  the  negligence  or  misfeasance  of 
himself  or  hia  servants.  Eussell  v.  Erie  R. 
€o.  (N.  J.  5rr.  &  App.)  70  N.  J.  L.  808,  59 
Atl.  150,  67:  433 

875.  A  stipulation  in  a  contract  to  carry 
perishable  freight  that  it  must  be  at  owner's 
risk  is  vodd  where  those  are  the  only  terms 
upon  which  the  carrier  would  undertake  the 
service.  Parker  v.  Atlantic  Coast  Line  R. 
Co.  133  N.  C.  335,  45  S.  E.  658,  63:  827 

876.  A  common  carrier  cannot  lesrnlly  ex- 
act an  agreement  limiting  its  liability,  as 
a  condition  precedent  to  receiving  or  carry- 
ing the  ofTered  freight  or  message.  Kirby  v. 
Western  U.  Teleg,  Co.  4  S.  D.  105,  439,  7  S. 
D.  623,  55  N.  W.  759,  57  N.  W.  199,  65  N. 
W.  37,  30:  612 

877.  An  agreement  restricting  the  carrier's 
liability  except  as  "to  the  rate  of  hire,  the 
time,  nnd  place,  and  manner  of  delivery," 
can  only  be  manifested,  under  §.'♦  D.  Comp. 
Laws,  §  3888,  by  the  signature  of  the  pas- 
senger, consignor,  consdgnee,  or  person  em- 
ploying such  carrier.  Id. 

878.  A  carrier  cannot  by  special  contract 
limit  its  common-law  liability  for  losses  not 
occasioned  by  negligence,  where  it  does  not 
aflTord  the  shipper  an  opportunity  to  con- 
tract for  the  service  reouired  without  such 
restriction,  even  if  he  makes  the  snecial  con- 
tract without  obiection  or  demau'l  for  a 
diflferent  one.  Little  Rock  ^  Ft.  S.  R.  Co.  v. 
Cravens,  57  Ark.  112,  20  S.  W.  803,       18:  527 

879.  The  signing  of  a  special  contract  lim- 
iting a  carrier's  liaHlity  does  not  prevent 
the  dipper  from  relying  on  the  common- 
law  dutv  of  the  carrier,  where  he  receives  no 
consideration  for  a  wiver  of  such  liability, 
and  was  given  no  choice  of  a  contract  im- 
posing it.  T-ake  Erie  &  W.  R.  Co.  v.  Holbnd, 
162  Tnd.  406,  69  N.  E.  138,  63:  948 

880.  A  common  carrier  may,  in  coT^sider- 
afcion  of  a  sneci^'l  freight  rate  or  other  val- 
uable cons''''eration.  secure  entire  exemntion 
from  liability  as  an  insurer  for  loss  of  or 
damage  to  pronerty  received  from  a  s^iiner 
for  tr^n<Miorta+ion.  not  caus-Ml  by  ne^li^ence 
or  wilful  misfeasance.  Ull»Tian  v.  CTii^a^o 
&  N.  W.  R.  Co.  112  Wis.  150,  88  N.  W.  41. 

56:  246 

881.  Assent  by  the  shinier  to  a  con-^itinn 
in  the  carria'i'e  contract  that  the  goods  are 
subiect  to  del'iy  is  immatpr^n'  if  it  has  no 
leoral  effer>t.  Parker  v.  Atlantic  Coast  Line 
R.  Co.  133  N.  C.  3.35.  45  R.  E.  658.  63:  827 
Au+^orifv  of  s^i»>T)er's  ascent  t'v  assent. 

By  Telcn-aoh  Comnanv.  s^e  Tele"'raTihsr94. 

RSP.  'ihe  a^ent  of  a  railroad  c^mnnny  his 
no  ri"ht  to  as^'Ume  that  a  fartman  has  the 
auth^ntv  to  a^ter  or  modi'fy  the  terms  of 
the  s>iinr»?Ti"'  or'^T.  whf^'-p  the  owner  of  goods 
held  in  storage  dire'»ted  the  s^^^^rnfrp  comnanv 
to  send  them  to  him  by  railroad,  and  an 
ofTi"er  of  the  stora^'e  comnanv  sent  the  bo\ 
•containing  the  goods  by  the  cartman  to  trie 
railroad  station,  accomnanierl  by  a  complete 
shipping  order.  Russell  v.  Erie  R.  Co.  (N. 
J.  Err.'&  App.)  70  N.  J.  L.  808,  59  Atl.  150, 

67 :  433 

883.  Ihe  presentation  of  a  shipping  order, 
-signed  by  a  storage  company,  to  a  railroad 
L.'R.A.  Dig.— 26. 


agent  by  a  cartman  sent  to  deliver  goods 
for  shipment,  was  notice  to  the  raiiroad 
company  that  the  authority  of  the  cartman 
was  in  no  sense  discretionary,  and  there  was 
no  authority  on  his  part  to  enter  into  a  con- 
tract to  exempt  the  railroad  company  from 
liability.  Id. 

To  own  line. 

884.  An  initial  carrier  may  protect  itself 
by  contract  against  liability  for  loss  not 
occurring  on  its  own  line,  whether  the  ship- 
ment be  wholly  within  one  state  or  be  in- 
terstate. McCarn  v.  International  &  U.  N. 
R.  Co.  84  Tex.  352,  19  S.  W.  547,  16:  39 

885.  Although  a  railroad  company  enters 
into  a  joint  contract  with  another  company 
for  the  transportation  of  goods  to  a  point 
beyond  the  end  of  its  own  line,  it  is  compe- 
tent for  it  to  enter  into  an  express  contract 
with  the  shipper,  limiting  its  liability  to  the 
transportation  of  the  property  over  its  own 
line.  Lnion  State  Bank  v.  Fremont,  E.  & 
M.  Valley  R.  Co.  66  Neb.  159,  92  N.  W.  131, 

59:  939 

886.  A  clause  limiting  the  liability  of  a 
railway  company  to  its  own  line,  which  is 
wholly  within  the  state,  will  not  convert 
into  a  domestic  bill  of  lading  an  instrument 
which  purports  on  its  face  to  be  a  through 
bill  of  lading  to  a  foreign  port,  providing 
for  the  transportation  of  the  goods  to  their 
foreign  destination,  and  fixing  the  through 
rate  of  freight.  Missouri  P.  R.  Co.  v.  Sher- 
wood, 84  Tex.  125,  19  S,  W.  455,       17:  643 

887.  While  a  carrier  may  restrict  its  lia- 
bility to  its  own  line  by  contract  with  the 
shipper,  it  cannot  do  so  by  a  mere  stipula- 
tion in  a  bill  of  lading  not  signed  by  the 
shipper,  without  proof  that  the  shipper  sCc- 
cepted  the  same,  consenting  to  the  restric- 
tion. Illinois  C.  R.  Co.  v.  Carter,  165  111.  570, 
46  N.  E.  374,  36:  527 

888.  A  contract  to  exempt  a  carrier  from 
liability  on  account  of  the  negligence  of  con- 
necting carriers  is  illegal  under  Mo.  Rev. 
Stat.  §  944,  when  a  carrier  makes  a  con- 
tract for  a  through  shipment  to  a  point  be- 
vond  its  own  terminus.  McCann  v.  Eddy, 
133  Mo.  59,  33  S.  W.  71,  35:  110 

889.  A  stipulation  in  a  through  bill  of  lad- 
ing, limiting  liability  for  loss  or  damage  to 
that  line  on  wliich  it  shall  occur,  will  not  re- 
lieve the  initial  carrier  from  liability  for  de- 
lay on  another  line,  where  this  is  caused  by 
a  negligent  misdirection  in  the  waybill  made 
out  bv  the  initial  carrier.  Illinois  C.  R.  Co. 
V.  Southern  Seating  &  C.  Co.  104  Tenn.  368, 
58  S.  W.  303,  50:  729 

890.  The  liability  of  a  carrier  for  a  pas- 
senger train  service  continues  to  dastimtion, 
under  a  contract  to  receive  and  forward  fruit 
by  such  service  to  a  connecting  station  on 
its  road,  and  from  there  "to  forward"  the 
property  to  des.tination,  but  providing  that 
"its  responsibility  as  a  common  carrier  is 
to  cease  at  the  point  where  the  freight  leaves 
its  mad."  Colfax  Mountain  Fruit  Co.  v. 
Southern  Pac.  Co.  118  Cal.  648,  50  Pac.  775, 

40:78 

891.  An  indorsement  on  a  bill  of  lading  of 
the  final  destination  of  freight  tendered  for 
transportation,  which  is  beyond  ihe  termina- 


402 


CARRIERS,  IL  b,  7. 


tion  of  the  carrier's  line,  and  the  stipu- 
lation that  it  shall  go  "on  fastest  passenger 
train  service,"  will  not  render  the  carrier 
liable  for  carriage  to  destination,  but  only 
to  deliver  it  to  the  connecting  carrier, 
where  the  bill  of  lading  expressly  states  that 
the  carrier  will  not  be  liable  for  losses  be- 
j'ond  its  own  line,  and  the  blank  for  destina- 
tion in  the  body  of  the  contract  is  left  un- 
filled in  accordance  with  an  express  direc- 
tion that  it  shall  not  be  filled  by  a  point 
"not  on  the  lines  of  this  system."  Taffe  v. 
Oregon  R.  &  Nav.  Co.  41  Or.  64,  67  Pac.  1015, 

58:  187 
Special  train. 

892.  A  railroad  company  hauling  a  special 
train  of  cars  as  a  private  carrier  may  law- 
fully contract  for  entire  exemption  from  the 
risk  of  accidents.  Chicago,  M.  &  St.  P.  R. 
Co.  v.  Wallace,  24  U.  S.  App.  589,  14  C.  C.  A. 
257,  66  Fed.  506,  30:  161 

Dangerous  articles. 
For  Editorial  Notes,  see  infra,  TV.  §  37. 

80.3.  A  contract  exempting  a  carrier  from 
liability  for  loss  by  fire  from  any  cause 
whatsoever,  in  transporting  blasting  powder, 
is  not  void  as  unconscionable  or  unreason- 
able. California  Powder  Works  v.  Atlantic 
&  P.  R.  Co.  113  Cal.  329,  45  Pac.  691. 

36:  648 

894.  A  carrier  receiving  blasting  powder 
for  transportation  can  insist  upon  such 
terms  and  limitation  of  common-law  lia- 
bility as  it  sees  fit,  since  it  is  not  obliged 
to  receive  and  transport  such  dangerous  .ar- 
ticles. Id. 
After  unloading. 

895.  A  contract  that  goods  shall  be  at  the 
risk  of  the  consignors  when  unloaded  on  a 
platform  at  a  station  where  there  is  no 
building  or  any  agent  of  the  carrier  is  not 
against  public  policy.  Allam  v.  Pennsvl- 
vania  R.  Co.  183  Pa.  174,  38  Atl.  709,39:  535 

6.  As  to  Negligence. 

Of  Connecting  Carrier,  see  infra,  987. 

Burden  of  Proof  as  to,  see  Evidence,  483,  488, 
490. 

Stipulation  by  Telegraph  Company,  see  Tel- 
egraphs, n.  c. 

See  also  infra,  889,  920-928,  932. 

For  Editorial  Notes,  see  infra,  IV.  §  37. 

896.  A  stipulation  against  liability  except 
for  gross  negligence  will  not  relieve  a  car- 
rier from  liability  for  nesrligence,  although 
it  mav  not  be  gross  negligence.  Pierce  v. 
Southern  P.  Co.  120  Cal.  156,  47  Pac.  874, 
52  Pac.  302,  40:  350 

807.  A  common  carrier  cannot  limit  its 
liability  by  contract  for  the  negligence  of  its 
servants  or  its  own  negligence.  Missouri  P. 
R.  Co.  v.  Ivey,  71  Tex.  409,  9  S.  W.  346, 

1:  500 

Durcrin   v.    American   Exn.   Co.   66   N.   H. 

277.  20  Atl.  328,  "  9:  453 

808.  Although  goods  are  shipped  at  the 
owner's  risk,  the  carrier  may  be  liable  for 
damage  caused  by  the  weather  or  rust,  if 
occasioned  by  the  carrier's  negligence  or  by 
unreasonable  delay  upon  the  road.    Western 


&  A.  R,  Co.  V.  Exposition  Cotton  Mills,  81 
Ga.  522,  7  S.  E.  916,  2:  102 

Assent  by  shipper;  reduced  rates. 
See  also  supra,  873,  874,  880. 

899.  In  Virginia  a  common  carrier  eannot 
contract  for  exemption  from  liability  for  in- 
jury or  loss  caused  by  its  own  neglect.  Har- 
man  v.  Norfolk  &  W.  R.  Co.  91  Va.  601,  22 
S.  E.  490,  44:  289 

900.  A  carrier  cannot  contract  for  exemp- 
tion from  liability  for  injuries  caused  by 
delays  due  to  its  ovn..  negligence.  Parker 
v.  Atlantic  Coast  Line  R.  Co.  133  N.  C.  335, 
45  S.  E.  658,  63:  827 

901.  A  carrier  cannot,  by  contract,  exempt 
itself  from  liability  for  damages  to  property 
received  for  transportation  which  directly 
result  from  its  own  negligence,  whether  it 
occurs  before  or  after  the  property  is  re- 
ceived. Id. 

902.  A  carrier  may  by  special  contract  free 
himself  from  many  common-law  liabilities, 
although  not  from  his  own  fraud  or  negli- 
gence. Terre  Haute  &  I.  R.  Co.  v.  Sherwood, 
132  Tnd.  129,  31  N.  E.  781,  17:  339 

903.  A  common  carrier  cannot,  eren  by  ex- 
press contract,  exempt  itself  from  liability 
for  gross  negligence  or  wilful  misconduct. 
Chicago  &  N.  W.  R.  Co.  v.  Chapman,  133  111. 
96,  24  N.  E.  417,  8:  508 

904.  A  common  carrier  of  goods,  whose  lia- 
bility is  limited  by  special  contract  to  loss 
or  injury  through  his  negligence,  must  show 
that  a  loss  occurred  from  some  cause  other 
than  his  negligence,  in  order  to  escape  lia- 
bility therefor.     Hull  v.  Chicago,  St.  P.  M. 

6  O.  R.  Oo.  41   Minn.  510,  43  N.  W.  391, 

5:  587 

905.  If  a  shipper  of  machinery  agrees  that 
it  may  be  transported  upon  open  cars,  the 
carrier  may  still  be  liable  for  damage  by  rust 
or  by  the  weather  durinor  a  detention  on  the 
road,  if  ordinary  diligence  required  the  car- 
rier to  cover  the  cars  during  such  detention, 
and  it  failed  to  do  so.  Western  &  A.  R. 
Co.  V.  ExDosition  Cotton  Mills,  81  Ga.  522, 

7  S.  E.  916,  2:  102 

906.  A  limitation  of  liability  in  fche  bill 
of  lading  will  not  control  where  the  damage 
is  an  effect  of  the  carrier's  negligence,  and 
where  it  does  not  appear  that  the  limitation 
was  in  consideration  of  a  lower  rate  of 
freight.  Adams  Exp.  Co.  v.  Harris,  120  Ind. 
73,  21  N.  E.  340,  7:  214 
Chicago  &  N.  W.  R.  Co.  v.  Chapman,  133 
111.  96,  24  N.  E.   417,                              8:  508 

c.  As  to  Amount. 

Stipulation  by  Telegraph  Company,  see  Tel- 
egraphs. 91-95. 
For  Editorial  Notes,  see  infra,  FV.  §§  37,  46. 

907.  Absence  of  an  invoice  will  not  pre- 
vent the  operation  of  a  stipulation  in  « 
carriage  contract,  that  the  carrier's  liability 
for  loss  shall  be  limited  to  the  invoice  price 
at  the  point  of  shipment,  but  the  ralue  of 
the  property  at  that  point  will  be  the  meas- 
ure of  damage.  Pierce  v.  Southern  P.  Co. 
120  Cal.  156,  47  Pac.  874,  52  Pac.  30'>. 

40:  350 

908.  A  carrier's  contract  limiting  liability 
for  loss  to  a  specified  amount  has  no  appii' 


CARRIERS,  11.  b,  7. 


403 


cation  to  the  damages  to  be  recovered  for 
its  failure  to  comply  with  a  notice  of  stop- 
page tn  transitu  after  it  had  agreed  tD  do  so. 
Eosenttua  v.  Weir,  170  N.  Y.  148,  63  N.  E. 
65,  57:52/ 

909.  A  contract  limiting  the  liabiUtj  of  a 
common  carrier  for  loss  of  or  damage  to 
the  subject  of  carriage,  to  an  arbitrary  sum 
of  money  not  fixed  \vith  reference  to  the 
agreed  actual  or  maximum  value  of  the 
property,  is  an  unlawful  limitation  of  lia- 
bility. Ullman  v.  Chicago  &  N.  W.  R.  Co. 
112  Wis.  150,  88  N.  W.  41,  56:  246 

910.  A  statiment  of  the  value  of  a  horse 
shipped,  made  by  the  shipper  in  answer  to 
the  carrier's  inquiry,  which  value  is  inserted 
in  the  bill  of  lading,  is  conclusive  on  him  as 
to  the  value  of  the  horse,  in  an  actioa 
against  the  carrier  for  its  loss,  although  the 
bill  of  lading  is  silent  as  to  the  effect  of  such 
valuation  upon  the  shipper's  liaTjdlity,  and 
he  has  no  actual  information,  and  did  not 
suppose  that  his  statement  would  affect  ihe 
amount  of  the  company's  fiability.  Coup- 
land  V.  Housatonic  R.  Co.  61  Conn.  531,  23 
Atl.  870,  15:  534 
Assent  of  shipper;  reduced  rates. 
Estoppel  of  Shipper,  see  Estoppel,  117. 

See  also  infra,  923-928. 

911.  A  custom  requiring  a  shipper  to 
agree,  as  a  condition  of  shipment,  that  his 
measure  of  damages  shall  not  be  more  than 
the  cash  value  of  the  stock  shipped  at  the 
place  of  shipment,  is  illegal.  Missouri  P. 
R.  Co.  v.  Fagan,  72  Tex.  127,  9  S.  W.  749, 

2:  75 

912.  If  a  bill  of  lading  issued  by  a  com- 
mon carrier  states  the  value  of  the  prop- 
erty received  for  shipment,  or  the  maximum 
value  thereof,  either  as  declared  by  the  ship- 
per or  without  specifying  the  same  to  be  so 
declared,  and  the  latter,  without  objecting 
to  such  stated  value,  delivers  bis  property 
to  the  carrier  and  receives  the  bill,  he  there- 
by assents  to  the  terms  thereof  as  regards 
such  value.  Ullman  v.  Chicago  &  N.  W.  R. 
Co.  112  Wis.  150,  88  N.  W.  41,  56:  246 

913.  A  clause  inserted  without  consider- 
ation in  a  carriage  contract,  fixing  the  dam- 
age, in  case  of  loss  of  the  goods,  at  their 
value  at  the  place  of  shipment  rather  than 
of  destination,  is  invalid.  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Coolidge,  73  Ark.  112,  83  S.  W. 
333,  67:555 

914.  A  contract  fixing  the  measure  of  dam- 
ages for  the  loss  of  goods  at  the  actual  in- 
voice cost  at  point  of  shipment,  if  fairly 
made  in  consideration  of  a  lower  freightage, 
is  not  invalid.  Pierce  v.  Southern  P.  Co. 
120  Cal.  156,  47  Pac.  874,  52  Pac.  302, 

40:  350 

915.  A  stipulation  in  a  bill  of  lading,  that, 
in  consideration  of  rates  inserted  therein  less 
than  the  regular  rates,  it  is  asrreed  in  case 
of  loss  or  damage  to  the  property  transferred 
that  the  same  shall  be  adjusted  at  an  agreed 
valuation,  which  is  less  than  the  actual  val- 
ue of  such  property, — is  binding  upon  the 
Bhipper.  J.  J.  Douglass  Co.  v.  Minnesota 
Transfer  R.  Co.  62  Minn.  288,  64  N.  W.  899, 

30:  860 


916.  A  valid  contract  limiting  the  liability 
of  a  carrier  to  a  certain  agreed  valuation  of 
the  property  carried  may  be  made  where  it 
is  just  and  reasonable  in  its  terms,  and  a 
reduced  rate  of  freight  is  made  the  consid- 
eration for  it.  Richmond  &  D.  R,  Co.  v. 
Payne,  86  Va.  481,  10  S.  E.  749,  6:  849 
Louisville  &  N.  R.  Co.  v.  Gilbert,  88  lenn. 
430,  12  S.  W.  1018,  7:  162 

917.  A  regulation  of  a  carrier  with  respect 
to  the  transportation  of  live  animals,  fixing 
the  ordinary  value  of  horses  at  $200,  and  re- 
quiring an  extra  charge  for  transporting  ani- 
mals of  a  greater  value,  is  reasonable,  and 
not  in  conflict  with  the  general  rule  that  a 
carrier  cannot  discharge  himself  of  legal 
responsibility  by  goneral  notice.  Duntley  v. 
Boston  &  M.  R.  Co.  66  N.  H.  263,  20  Atl.  327, 

9:449 

918.  One  who  ships  a  horse  as  an  ordinary 
horse,  understanding  that  the  carrier  has  a 
regulation  limiting  its  liability  in  case  of  in- 
jury to  a  certain  sum  for  an  ordinary  horse, 
and  if  a  higher  value  is  given  a  higher  rate 
will  be  charged,  cannot  insist  upon  a  higher 
valuation  in  case  of  loss  or  injury.  Id. 

919.  A  stipulation  placing  an  agreed  val- 
uation upon  goods  delivered  to  an  express 
company  for  transportation,  which  is  insert- 
ed in  the  shipping  receipt  and  is  designed  to 
fix  the  extent  of  the  company's  liability  in 
case  the  goods  are  lost,  is  binding  on  the 
shipper  if  he  understands  its  purpose  and 
knows  that  the  freight  charges  are  propor- 
tioned to  the  nature  and  extent  of  the  risk; 
and  the  fact  that  neither  the  value  of  the 
goods  nor  the  rate  of  charges  is  asked  in  a 
particular  case  is  immaterial.  Durgin  v. 
American  Express  Co.  66  N.  H.  277,  20  Atl. 
328,  9:  453 
In  case  of  negligence. 

920.  A  contract  limiting  the  amount  of 
liability  of  a  common  carrier  for  loss  of 
goods  carried,  even  if  the  loss  is  due  to  neg- 
ligence, is  not  contrary  to  public  policy. 
Ballon  V.  Earle,  17  R.  L  441,  22  Atl.  1113, 

14:  433 

921.  A  common  carrier  may  limit  its  lia- 
bility for  loss  or  damage  to  property  car- 
ried, attributable  to  such  carrier's  negli- 
gence, to  actual  loss,  uoon  a  value  basis  es- 
tablished by  contract  with  the  shipper;  and 
the  agreed  value  may  be  the  maximum  or 
actual  value  of  the  propertv.  Ullman  v.  Chi- 
cago &  N.  W.  R.  Co.  112  Wis.  150,  88  N.  W. 
41,  56:  246 

922.  A  carrier  of  live  stock  cannot  exempt 
itself  for  liability  for  loss  caused  by  delay 
in  transportation  occasioned  by  the  negli- 
gence or  misfeasance  of  itself  or  its  serv- 
ants, by  a  contract  with  the  shipper  pro- 
viding that  in  case  of  any  unusual  detention 
of  such  live  stock  caused  by  the  negligence 
of  the  carrier  or  its  servants  or  connecting 
carriers,  the  shipper  shall  accept  as  full  com- 
pensation the  amount  actually  expended  by 
him  in  the  purchase  of  food  and  water  for 
the  stock  while  so  detained.  Posley  v.  Bal- 
timore &  O.  R.  Co.  54  W.  Va.  663,  46  S.  E. 
613.  66:  871 

923.  A  receipt  or  contract  stipulating  that 
tihe  carrier  shall  be  liable  only  for  a  certain 
sum  on  the  loss  of  an  article,  unless  its  just 


404 


CARRIERS,  11.  b.  7. 


and  true  value  is  stated  therein,  will  be  up- 
held where  no  value  is  stated,  if  it  was 
freely  and  voluntarily  entered  into,  al- 
though the  loss  results  from  slight  or  ordi- 
nary negligence,  i'acific  Exp.  Co.  v.  Foley, 
46  Kan.  457,  26  Pac.  665,  12:  79{) 

924.  The  rule  that  a  contract  exempting  a 
common  carrier  from  liability  for  loss  of  or 
damage  to  property  received  for  transporta- 
tion, caused  by  negligence,  is  void  because 
contrary  to  public  policy,  does  not  militate 
against  the  validity  of  an  agreement,  fairly 
made,  liquidating  such  loss  or  damage  in  ad- 
vance upon  an  actual  or  maximum  value 
basis  agreed  upon  and  stated  in  the  con- 
tract. Ullman  v.  Chicago  &  N.  W.  R.  Co. 
112  Wis.  115,  88  N.  W.  41,  56:  246 

925.  A  stipulation  fixing  the  value  of  live 
stock  in  a  carrier's  contract,  if  fairly  maae 
as  the  basis  of  the  rate  of  compensation  for 
the  carrier's  services  and  risks,  will  consti- 
tute the  limit  of  recovery  for  loss  of  the 
stock,  although  it  is  caused  by  the  carrier's 
negligence;  but  such  limitation  is  invalid  in 
ease  of  negligence,  if  its  purnose  was  mere^ 
ly  to  limit  the  amount  of  the  carrier's  lia- 
bility. A  lair  v.  Northern  P.  R.  Co.  53  Minn. 
160,  54  N.  W.  1072,  19:  764 

926.  A  common  carrier  may,  by  special 
agreement  just  and  reasonatile  in  itself,  and 
fairly  made  between  itself  and  the  consignor 
of  a  horse  at  the  time  of  the  shinment.  fix 
the  va'ue  of  such  horse,  upon  consideration 
that  the  rate  of  charges  for  transportation 
shall  be  commensurate  with  the  value  of 
the  horse  thus  ascertained,  and  may  also 
limit  its  liaoility  in  case  of  loss  to  the 
amount  thus  agreed  upon,  even  though  the 
loss  may  be  the  result  of  negli<?ence  on  the 
part  of  the  carrier,  provided  said  neelieence 
be  not  gross,  wanton,  or  wilful:  but  cannot 
wh'^llv  exempt  itself  from  liability  for  loss 
resu'tinT  from  neglifenoe.  Zouch  v.  Chesa- 
peake &  O.  R.  Co.  36  W.  Va.  524,  15  S.  ii;. 
185.  i;:116 

927.  A  railwav  oomnany  in  its  carwcity  as 
a  common  carrier  mav.  ag  the  basis  for  fix- 
ing its  char"-ps  and  limiting  the  amount  of 
its  corresnonding  lial^ilitv,  lawfully  make 
with  a  shioner  a  contract  of  afi"reiorhtment 
embracing  an  actual  and  bona  fide  agree- 
ment as  to  the  value  of  the  property  to  be 
transported;  and  in  such  case  the  latter, 
wl^en  loss,  d^mase.  or  destruction  ocurs. 
wi'l  be  botmd  bv  the  "afn-eed  valuation." 
But  a  m'"'e  general  limitation  as  to  vabie. 
expressed  in  a  bill  of  ladinw.  and  amounting 
to  no  more  than  an  "arbitrary  preadiust- 
ment  of  the  measure  of  damages."  will  not, 
though  the  shinper  as'^ents  in  writing  to  the 
terms  of  the  document,  serve  to  exemnt  a 
nei'lieept  carrier  from  liability  for  the  true 
value.  Co^'tral  of  Oa.  R.  Co.  v.  Murohev  <^' 
Hunt.  113  Oa.  514.  .38  S.  E.  970.  .53:720 

928.  Apnropriate  language  being  used  in  a 
bill  of  Indip''  linuidatin".  on  a  vihie  basis, 
recoverable  damages  for  the  loss  of  or  iniury 
to  the  s'lbjct  of  carriage  happening  through 
events  d^^sfri^ed  bv  sur<h  lan^ange  as  to  rea- 
sonab'r  include  results  of  negli^en'^e  on  the 
part  of  the  carrier,  and  also  appropriate  lan- 
guage exempting  the  carrier  from  all  lia- 


bility, in  consideration  of  a  special  freight 
rate  or  other  va.uable  consideration,  for  loss 
of  or  damage  to  such  subject  by  events  not 
necessarily  attributable  to  the  carrier's  neg- 
ligence,— the  reasonable  and  sensible  con- 
struction of  the  whole  is  that  the  limita- 
tion of  liability  upon  a  value  basis  refers  to 
loss  by  negligence,  that  being  the  customary 
way  of  liquidating  damages  in  advance, 
caused  by  fault  of  that  nature,  and  that 
the  entire  exemption  from  liability  refers' 
to  damages  caused  by  such  mere  accidents 
as  the  carrier  would  be  liable  for,  and  that 
neither  refers  to  occurrences  for  which  there 
would  be  no  liability  whatever,  nor  to  dam- 
ages caused  by  wilful  misfeasance.  Ullman 
V.  Chicago  &  N.  W.  R.  Co.  112  Wis.  150,  88 
JS".  W.  41,  56:  246 

d.  As  to  Time  of  Giving  Notice  of  Commen- 
cing Suit. 

Stipulation  by  Telegraph  Company,  see  Tel- 
egraphs, 82-91. 

929.  A  custom  cannot  require  that  a  ship- 
per should  expressly  agree,  as  a  condition 
precedent  to  his  right  to  damages  for  in- 
jury to  stock  during  transportation,  that  he 
would  give  notice  before  removing  the  stock. 
Missouri  P.  R.  Co.  v.  Fagan,  72  Tex.  127,  9 
S.  W.  749,  2:  75 

930.  Under  Dak.  Civ.  Code,  §  1261,  provid- 
ing that  the  obligations  of  a  common  carrier 
cannot  be  limited  by  general  notice,  and  § 
1263,  providing  that,  except  as  to  the  rate  of 
hire,  time,  place,  and  manner  of  delivery,  the 
acceptance  of  a  ticket,  bill  of  lading,  or  writ- 
ten contract  shall  not  constitute  an  accept- 
ance of  provisions  modifying  the  carrier's 
obligations,  unless  the  person  accepting  it 
manifests  his  assent  by  his  signature, — a 
provision  in  an  express  company's  contract 
or  receipt,  exempting  the  company  from  lia- 
bility unless  a  claim  should  be  presented  in 
writing  within  ninety  days  from  that  date, 
is  of  no  effect,  where  such  contract  or  re- 
ceipt was  signed  only  by  the  company's 
agent.  Hartwell  v.  Northern  Pac.  Exp.  Co. 
5  Dak.  463,  41  N.  W.  732,  3:342 

931.  Provisions  in  a  carrier's  contract  that 
notice  of  injury  to  cattle  must  be  given  be- 
fore they  are  unloaded  or  mixed  with  others, 
and  that  no  animal  S'hall  be  considered  as 
worth  more  than  a  specified  sum,  conflict 
with  a  constitutional  provision  that  common 
carriers  shall  not  contract  for  relief  from 
their  common-law  liability.  Ohio  &  M.  R. 
Co.  V.  Taber,  98  Ky.  503,  32  S.  W.  168.  36 
S.  W.  18,  34:  685 

932.  A  railroad  company  is  not  absolved 
from  liability  for  injuries  to  stock  transport- 
ed by  it  occasioned  by  the  negligence  of  its 
employees,  by  a  clause  in  the  shipping  con- 
tract providing  that  it  shall  not  be  liable 
unless  written  notice  is  given  before  removal 
of  the  property  from  the  car,  where  it  had  a 
good,  fair,  and  reasonable  opportunity  to 
inspect  the  stock  before  removal.  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Temple,  47  Kan.  7.  27 
Pac.  98,  13:  362 

933.  A  condition  inserted  in  the  contract 
of  a  common  carrier  making  its  liability  de- 


CARRIERS.  II.  b,  7. 


40S 


pendent  upon  the  givins:  of  a  written  notice 
to  some  officer  of  the  carrier  or  the  nearest 
station  agent,  of  any  loss  or  injury  to  the 
■property  before  removing  it  froni  the  place 
of  delivery,  or  mingling  it  with  other  proper- 
ty, is  an  unreasonable  limitation  upon  the 
liability  of  such  carrier.  Good  v.  Galveston, 
H.  &  S.  A.  R.  Co.  (Tex.)  11  S.  W.  854, 

4:  801 

934.  If  a  carrier  sets  up  a  claim  to  notica 
of  a  given  fact  as  a  condition  on  which  its 
liability  to  a  shipper  was  to  depend,  it  is  in- 
cumbent upon  it,  when  the  notice  was  to  be 
given  to  one  of  its  officers  or  agents,  to  show 
that  it  had  an  officer  or  agent  at  or  near  the 
place  where  the  notice  was  to  be  given.  Id. 
Commencing  suit. 

For  Editorial  Notes,  see  infra,  IV.  §  37. 

935.  Aa  agreement  in  a  bill  of  lading,  that 
in  caae  of  a  breach  of  the  shipping  contract 
a  suit  to  recover  the  damages  th^^by  occa- 
sioned will  be  barred  unless  brought  within 
forty  days  after  the  damage  occurs,  is  valid 
and  binding  on  the  shipoer;  and  after  the 
lapse  of  forty  days  he  cannot  maintain  an 
action  to  recover  for  the  losses  sustained, 
unless  he  shows  some  reasonable  excuse  for 
the  delay.  Gulf,  C.  &  S.  F.  R.  Co.  v.  Gate- 
wood,  79  Tex.  89,  14  S.  W.  913,  10:  419 

e.  Excepted  Perils. 

Breakage,  Presumption  as  to,  see  Evidence, 

400. 
For  Editorial  Notes,  see  infra,  IV.  §  37. ' 

936.  j?]xemptions  in  favor  of  a  common 
carrier  in  bills  of  lading  are  to  be  strictly 
construed  against  the  carrier,  and  any  doubt 
or  ambiguity  therein  is  to  be  resolve<i  in  fa- 
vor of  the  shipper.  N.  K.  Fairbank  &  Co.  v. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  26  C.  C. 
A.  402,  47  U.  S.  App.  744,  81  Fed.  289, 

38:  271 

937.  General  and  comprehensive  words  of 
exemption  following  an  enumeration  of  par- 
ticular dangers  or  risks  in  a  bill  of  lading 
are  to  be  construed  to  embrace  only  particu- 
lar occurrences  ejusdem  generis  with  those 
enumerated,  unless  there  is  a  clear  intent  to 
the  contrary.  Id. 

938.  Those  devices  and  parts  of  a  car 
which  have  no  physical  operation  and  con- 
nection with  the  locomotive,  except  by 
means  of  the  cars  of  the  train  and  the  coup- 
lers between  them,  such  as  the  axles  of  the 
car,  are  not  within  the  term  "machinery"  in 
the  phrase  "accidents  to  boilers  and  ma- 
chinery," as  used  in  the  exemption  clause  in 
a  bill  of  ladinw,  evidently  intended  to  apply 
either  to  water  or  rail  transportation.  Id. 
Wet. 

See  also  infra,  1001. 

For  Editorial  Notes,  see  infra,  IV.  §  37. 

939.  A  commor  carrier  may,  in  consider- 
ation of  a  ref'':.ced  freight  rate,  stipulate  for 
exemption  Irom  liabilitv  to  the  nrooerty  bv 
wet.  Mears  v.  New  York,  N.  H.  &  H.  R.  C^. 
75  Conn.  171,  52  Atl.  610,  56:  884 
Freezing. 

WO.  Loss  of  freight  by  freezing  caused  by 
its  being  sent,  by  direction  of  the  carrier, 


over  a  route  which  subjected  it  to  such  peril, 
is  not  within  a  clause  in  the  shipning  con- 
tract exempting  the  carrier  from  liability 
for  loss  from  any  "cause  arising  out  of  re- 
sponsibility as  master  over  its  agents  or 
^rvants,  incident  to  said  .shipment."  Pierce 
V.  Southern  P.  Co.  120  Cal.  156,  47  Pac.  874, 
52  Pac.  302,  40:  350 

Fire. 
For  Editorial  Notes,  see  infra,  TV.  §  37. 

941.  A  "fire  clause"  in  a  bill  of  lading,  ex- 
empting the  carrier  from  liability  for  loss 
by  fire,  is  not  valid  where  transportation 
under  the  rules  of  the  common  law  is  not 
offered  as  an  alternative,  and  no  reduction  of 
rates  is  made  as  a  considerntion  for  the  ex- 
emption. Louisville  &  N.  R.  Co.  v.  Gilbert, 
88  Tenn.  430,  12  S.  W.  1018,  7:  162 

942.  Mere  acquiescence  by  shippers  in  the 
use  of  bills  of  lading  containing  a  clause  ex- 
empting from  liability  for  fires  will  not 
show  the  reasonableness  of  the  exemption, 
where  the  shippers  have  not  had  an  oppor- 
tunity of  selectinsr  between  bills  of  lading 
with  and  those  without  this  clause.  Id. 

943.  The  ordinary  exemption  clause  in  a 
bill  of  ladinor,  exemptin?  the  carrier  from 
liabilitv  for  loss  of  the  sihipoer's  nronertv  by 
fire,  will  not  cover  cotton  while  in  the  ware- 
house of  a  compress  company  which  has  re- 
ceived it  as  the  agent  of  the  carrier.  Dem- 
ing  V.  Merchants'  Cotton-Press  &  S.  Co.  90 
Tenn.  306,  17  S.  W.  89,  13:  518 

944.  A  railroad  company  is  liable  for  cot- 
ton burned  in  its  car  while  intrusted  to  it 
for  shipment,  where  the  cotton  would  not 
have  been  destroyed  but  for  the  breaking  of 
a  drawbar  in  attempting  to  draw  the  train 
out  of  danger,  although  its  bill  of  lading 
contains  a  valid  clause  exempting  it  from 
liability  for  loss  by  fire.  To. 

945.  Carriers  making  a  through  contract 
for  the  shipment  of  merchandise,  whether 
through  an  initial  line  agreeing  to  ship  be- 
yond its  own  road,  or  through  a  transporta- 
tion company  having  no  line  of  its  ov/n, 
but  simply  authorized  to  ship  over  connect- 
ing lines,  may  insert  therein  a  fire  exemp- 
tion clause,  although  no  offer  is  made  to  as- 
sume the  risk  for  additional  compensation, 
since  there  is  no  common-law  liability  to 
make  the  through  shipment.  Id. 

946.  The  burning  of  cotton  while  awaiting 
compression  as  provided  by  a  bill  of  lading, 
in  a  compress  not  owned  or  operated  by  the 
carrier,  is  within  a  clause  in  the  bill  exempt- 
ing the  carrier  from  loss  by  fire  while  the 
property  is  on  deposit  in  place  of  tranship- 
ment or  depots  or  landings,  or  at  points  of 
deliverv.  Missouri  P.  R.  Co.  v.  Sherwood.  84 
Tex.  125,  19  S.  W.  455,  17:  643 
Mob  or  strike. 

947.  A  common  carrier  may  lawfully  stip- 
ulate by  special  contract  for  exemption  from 
liability  for  loss  occurring  by  reason  of  de- 
lay in  the  transportation  and  delivery  of 
goods,  occasioned  by  a  mob,  or  strike,  or 
threatened  vioTence  to  person  or  property. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Gatewood,  89  Tex. 
89,  14  S.  W.  913,  10:419 


406 


CARRIERS,  II.  b,  8  9, 


8.  Contract  or  Duty  to  Furnish  Cars. 

Duty  to  Receive  and  Transport  Freight  Of- 
fered, see  supra,  II.  b,  2. 

Duty  to  Furnish  Safe  Cars,  see  supra,  763. 

Penalty  for  Failure  to  Furnish  Cars,  see 
infra,   1022-1024. 

Measure  of  Damages  for  Failure  to  Furnish, 
see  Damages,  231. 

Evidence  of  Animosity  against  Shipper,  see 
Evidence,  2176. 

Evidence  of  Declarations  as  to,  see  Evidence, 
1630. 

Mandamus  to  Compel  Furnishing  of  Cars, 
see  Mandamus,  109,  163,  164. 

Pleading  as  to,  see  Pleading,  45. 

See  also  supra,  773. 

For  Editorial  Notes,  see  infra,  IV.  §§  34,  39. 

948.  I'he  question  whether  or  not  the  own- 
er of  refrigerator  cars  which  are  to  be  used 
for  shipping  fruit  is  a  common  carrier  does 
not  determine  the  liability  of  a  railroad 
company  for  breach  of  its  contract  to  fur- 
nish such  cars  for  a  particular  shipment. 
Mathis  V.  Southern  R.  Co.  65  S.  C.  271,  43 
S.  E.  684,  61 :  824 

949.  A  railroad  company  which  contracts 
to  furnish  a  refrigerator  car  in  which  to 
transport  fruit  cannot  relieve  itself  from 
liability  for  failure  to  do  so  on  the  ground 
that  such  cars  are  only  furnished  by  anoth- 
er company,  and  that  the  railroad  company 
did  not  solicit  the  business,  but  an  agree- 
ment for  the  cars  was  made  between  the 
shipper  and  the  owner  of  the  car.  Id. 

950.  No  excuse  for  the  breach  by  a  carrier 
of  its  contract  to  furnish  a  car  and  transport 
cattle  to  a  certain  place  by  a  certain  day  is 
furnished  by  the  fact  that  the  shipper's  ob- 
ject in  n<^ming  that  day  was  to  ennble  him 
to  offer  the  cattle  for  sale  on  Sunday,  con- 
trary to  law,  unless  that  object  entered  into 
the  contract  as  part  of  the  inducement  or 
consideration.  Waters  v.  Pif4imond  &  D.  R. 
Co.  110  N.  C.  338,  14  S.  E.  802,  16:  834 

951.  A  notification  to  a  railroad  company 
by  a  person  to  whom  shipments  were  being 
made  under  a  contract,  not  to  receive  any 
more  suc^  shipments,  will  not  relieve  the 
carrier  for  failure  to  furnish  cars  to  the 
shipper  when  demanded.  Houston,  E.  &  W. 
T.  R.  Co.  v.  Campbell,  91  Tex.  551,  45  S.  W. 
2,  43:  225 

952.  A  carrier's  knowledge  of  a  shipper's 
contract  is  not  necessary  in  order  to  make  it 
liable  for  failing  to  furnish  cars  when  de- 
manded, in  order  to  make  shipments  to  fill 
the  contract.  Id. 

953.  Failure  of  a  railroad  company  to  fur- 
nish cars  to  a  shipper  who  has  property 
ready  to  ship  under  a  contract,  and  demands 
cars,  will  render  the  carrier  liable  for  his 
damages  on  account  of  the  failure,  although 
he  does  not  continue  to  prepare  and  offer  for 
^inment  the  remainder  of  the  property  re- 
quired to  fill  the  contract.  Id. 

954.  The  duty  of  a  railroad  company  to 
furn'sh  cars  for  transportation  to  a  person 
makincr  a  timelv  demand  therefor  is  imposed 
by  Tex.  Rev.  Stat.  1895,  arts.  4494,  4496, 
without  the  necessity  of  a  contract  for  the 
cars.  Id. 


955.  'j.ne  proviso  in  Tex.  Rev.  Stat.  art. 
4498,  that  the  place  designated  in  an  appli- 
cation for  cars  "shall  be  at  some  station  or 
switch  on  the  railroad,"  was  not  intended 
to  require  cars  to  be  furnished  at  such 
switches  as  were  not  otherwise  within  the 
terms  of  the  statute.  Id. 

9.  Demurrage  on  Cars. 

Elegal  Combinations  to  Fix  Charges  for,  see 

Conspiracy,  184-187. 
See  also  supra,  786. 
For  Editorial  Notes,  see  infra,  IV.  §  43. 

956.  A  carrier  which  has  adopted  a  rea- 
sonable regulation  regarding  demurrage  up- 
on its  cars  is  not  prevented  from  enforcing 
it  by  the  fact  that  it  was  promulgated  by 
a  board  or  combination  of  carriers.  Miller  v. 
G€orgia  R.  &  Bkg.  Co.  88  Ga.  563,  15  S.  E. 
316,  18:  323 

957.  A  reasonable  charge  for  improper  de- 
lay in  unloading  cars  is  not  one  for  trans- 
portation, storage,  or  delivery  of  freight 
within  Va.  Code  1887,  §§  1202,  1203,  whieh 
provide  that  no  charge  other  than  that  pro- 
vided by  law  shall  be  made.  Norfolk  &  W. 
R.  Co.  v.  Adams,  90  Va.  393,  18  S.  E.  673, 

22:  530 

958.  A  carrier  whose  customers  are  al- 
lowed the  option  of  unloading  for  themselves 
may  make  and  enforce  a  reasonable  regula- 
tion as  to  the  time  in  which  the  vehicles 
may  be  unloaded  free  of  demurrage,  and 
may  fix  a  reasonable  rate  per  day  at  which 
demurrage  will  be  charged  for  such  vehicles 
so  lo'nsr  as  they  remain  unloaued  after  the 
expiration  of  such  time.  Miller  v.  Georsria 
R.   &   Bkg.   Co.   88   Ga.   663,   15   S.   E.   316. 

18:  323 

959.  Under  a  regulation  of  a  carrier  pro- 
viding for  demurrage  upon  cars  to  be  placed 
and  remain  accessible  to  the  consignee  for 
the  purpose  of  unloading,  the  cars  are  to  be 
considered  accessible,  where  the  carrier  is  al- 
ways ready  to  place  them  in  a  position  for 
unloadinsr  within,  at  the  longest,  a  few  hours 
after  being  notified  that  the  consignee  is 
ready  to  unload.  la. 

960.  A  regulation  of  a  carrier  as  to  demur- 
rage upon  cars,  known  to  its  customer  be- 
fore its  shipments  are  made,  is  binding  upon 
him,  whether  mentioned  in  the  bills  of  lad- 
ing or  not,  and  whether  the  shipments  are 
made  to  the  order  of  the  consignor  with  in- 
structions to  notify  the  customer,  or  direct- 
ly to  the  customer  himself.  Id. 
Reasonableness  of  charge. 

Question  for  Jury  as  to,  see  Trial,  153, 

961.  A  charge  to  a  consignee  of  $1  per  day 
after  three  days,  for  every  car  remaining 
unloaded  after  notice  of  arrival,  is  not  un- 
reasonable, Norfolk  &  W.  R.  Co,  v,  Adams, 
90  Va.,393,  18  S,  E.  673,  22:  530 

962.  A  charge  of  $1  per  day  demurrage  up- 
on railroad  cars  which  the  consignee  of 
freight  fails  to  unload  within  a  reasonable 
time  allowed  for  that  purpose  is  not,  as  mat- 
ter of  law,  unreasonable,  although  cars  vary 
in  capacity,  and  the  customary  rate  of  stor- 
age in  warehouses   and  elevators   is  much 


CAIIRIERS.  II.  c,  1. 


4©7 


lower.     MHler  r.  Georgia  R.  &  Bkg.  Co.  88 
Ga.  563,  15  S.  E.  316,  18:  323 

What  will  relieve  from  payment  of  charge. 

963.  Ignorance  of  the  existence  of  a  rule 
imposing  a  demurrage  charge  for  dilatori- 
ness  in  unloading  cars  does  not  relieve  a 
consignee  from  the  eflfect  of  its  operation, 
where  it  appears  upon  the  bill  of  lading. 
Yazoo  &  M.  V.  R.  Co.  v.  Searles,  85  Miss. 
520,  37  So.  939,  68:  715 

964.  1  he  existence  of  an  unadjusted  claim 
for  damage  to  a  car  load  of  freight  is  no 
justification  for  the  refusal  of  a  consignee 
to  pay  demurrage  on  cars  subsequently 
delivered  to  him.  Id. 

965.  A  rule  of  a  car-service  association 
that  payment  of  demurrage  bills  shall  not 
be  unduly  delayed,  and  that  no  claim  of  mis- 
take or  overcharge  will  be  considered  until 
the  bill  has  been  first  paid,  does  not  subject 
consignees  to  liability  to  imposition,  since 
the  consignee  would  have  an  action  for  dam- 
ages in  case  of  any  extortion.  Id. 

966.  Payment  of  bills  for  demurrage  fo/ 
failure  promptly  to  unload  cars  cannot  be 
refused  because  they  were  on  letter  heads 
of  a  car-service  association,  rather  than  on 
those  of  the  railroad  company.  id. 
Loss  of  lien  for  charges. 

967.  Placing  a  car  of  lumber  upon  the 
team  track  to  be  conveniently  unloaded  by 
the  consismee  is  not  such  an  absolute  de- 
livery of  the  property  into  his  possession  as 
to  cut  off  the  carrier's  lien  for  subsequent 
demurrage  charges  accruing  while  the  lum- 
ber remains  upon  its  car.  Southern  R.  Co. 
V.  Lock  wood  Mfg.  Co.  142  Ala.  322,  37  So. 
667,  68:  227 
Effect  of  nonpayment  of  charjres. 

968.  Refusal  by  a  carrier  to  place  cars 
on  the  switch  tracks  leading  to  the  ware- 
house of  a  consismee,  because  of  his  refusal 
to  recognize  or  be  uound  by  its  rule  impos- 
ing demurrage  charges  for  dilatoriness  in 
unloading,  is  not  a  breach  of  its  common- 
law  duty  which  will  'subject  it  to  damages, 
although  it  would  have  no  right  to  take 
such  course  merely  because  of  dispute  as  to, 
or  refusal  to  pay,  past-due  charges.  Yazoo 
&  M.  V.  R.  Co.  V.  Searles,  85  Miss.  520,  37 
So.  939,  68:  715 

969.  Compellinsr  a  consignee  of  goods  to 
receive  them  on  the  wagon  track  of  the  rail- 
road company  rather  than  have  them  placed 
upon  the  switch  track  leading;  to  his  ware- 
house, because  of  his  refusal  to  pav  demur- 
rage charges  according  to  the  rules  of  a 
car-service  association,  which  results  in  in- 
creased expense  of  unloading,  does  not  en- 
title him  to  the  penalty  imposed  by  statute 
when  one  has  been  compelled  to  pay  more 
for  services  rendered  by  a  corporation  exer- 
cising a  public  franchise  oy  reason  of  an  un- 
lawful act  or  agreement  of  a  trust  than  he 
would  liave  been  compelled  to  pay  but  for 
such  act.  Id. 
Rules  of  car  service  association. 

See  also  supra,  965,  966. 

970.  There  may  be  a  reasonable  charge 
for  the  detention  of  a  carrier's  cars  by  the 
consignee  or  consignor  beyond  a  reasonable 
time  within  which  to  load  and  unload  them, 


which  may  be  imposed  and  enforced  by  a 
^•ar  service  association.  Kentucky  Wagon 
Mfg.  Co.  V.  Ohio  &  M.  R.  Co.  98  Ky.  152, 
32  S.  W.  595,  36:  850 

971.  That  shippers  are  not  consulted  by  a 
car  service  association  in  framing  rules  for 
the  collection  of  demurrage  for  the  deten- 
tion of  cars,  and  that  the  rules  do  not  pro- 
vide for  reciprocity  of  indemnity  or  counter 
penalties,  do  not  render  the  rules  void.     Id. 

972.  Carriers  do  not  surrender  their  au- 
tonomy and  functions  by  relegating  the  con- 
trol and  management  of  the  prompt  loading 
and  unloading  of  cars  by  patrons  to  the  con- 
trol of  a  car  service  association.  Id. 

973;  A  provision  permitting  the  carrier 
which  delivers  a  car  to  a  consignee  to  collect 
the  demurrage  for  its  unreasonable  deten- 
tion does  not  render  a  rule  of  the  car  servi?e 
association  invalid,  although  the  car  may  in 
fact  belong  to  anoth-^r  L-arrier.  Id. 

974.  A  rare  or  exceptional  circumstance 
incident  to  a  particular  shipper  at  a  particu- 
lar time  cannot  be  allowed  to  annul  a  rule 
of  a  car  service  association  providing  for  the 
payment  of  a  demurrage  for  the  detention 
of  cars  beyond  a  certain  time.  Id. 

c.  Connecting  Carriers. 

1.  Of  Passengers. 

Liability  as  to  Baggage,  see  supra,  682,  684. 
See  also  supra,  614-616,  659. 

975.  A  railroad  company  Whidi  sells  a 
ticket  to  a  point  beyond  its  line  is  liable  for 
injuries  to  the  passenger  caused  by  the  neg- 
ligence of  those  in  charge  of  the  train  and 
car  at  a  point  beyond  its  own  line,  to  which 
the  passenger  was  carried  without  change 
of  cars.  Chollette  v.  Omaha  &  R.  V.  R.  Co. 
26  Neb.  159,  41  N.  W.  1106,  4:  135 

976.  A  railroad  company  contracting  to 
carry  an  excursion  party  by  a  special  train 
to  a  point  beyond  its  own  road  becomes  lia- 
ble for  the  entire  transportation;  and  anoth- 
er company  over  whose  road  it  passes,  and 
the  agents  of  the  latter  company,  become 
pro  hac  vice  its  agents  in  such  transporta- 
tion, for  whose  negligence  it  is  liable. 
Washington  v.  Raleigh  &  G.  R.  Co.  101  N.  C. 
239,  7  S.  E.  789,  1 :  830 

977.  Where  two  connecting  railroad  com- 
panies use  a  station  jointly,  or  hire  one  per- 
son to  discharge  the  duties  of  ticket  agent 
for  both,  and  such  person  sells  a  ticket  over 
one  of  the  roads,  the  other  company  is  not 
responsible  for  the  negligence  of  the  connect- 
ing road.  Atchison.  T.  &  S.  F.  R.  Co.  v. 
Cochran,  43  Kan.  225,  23  Pac.  151,       7:  414 

978.  A  railroad  company  which  sells  as 
first-class  and  for  a  full  first-class  fare  a 
ticket  over  its  own  and  other  lines,  noon 
which  is  printed  a  provision  that  in  selling 
the  ticket  the  company  acts  only  as  agent, 
and  is  not- responsible  beyond  its  own  line, 
is  not  liable  to  the  purchaser  on  account  of 
the  latter's  being  ejected  from  a  first-class, 
and  compelled  to  travel  on  a  second-class, 
car  on  another  line.  Harris  v.  Howe.  74 
Tex.  534,  12  S.  W.  224,  5:  777 


408 


CARRIERS,  II.  c,  2. 


979.  An  undertaking  by  a  ticket  agent, 
upon  receiving  money  to  pay  the  passage  of 
a  third  person  from  a  point  on  another  road 
to  the  point  where  the  money  is  received, 
that  he  will  instruct  the  initial  carrier  to  de- 
liver a  ticket  to  the  intending  passenger, 
will  not  render  his  employer  liable  for  delay 
of  the  initial  carrier  in  complying  with  the 
instructions.  Brezewitz  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.  75  Ark.  242,  87  S.  W.  127, 

70:  212 
Refusal  of  connecting  line  to  honor  tickets. 

980.  A  railroad  company  by  selling  tickets 
.bearing  coupons  for  transportation  over  con- 
necting lines  does  not  impliedly  contract 
that  such  tickets  will  be  recognized  and  hon- 
ored by  such  connecting  lines,  but  merely 
that  it  is  the  agent  of  such  lines'  and  has  au- 
thority to  i.ssue  such  tickets.  Chicago  &  A. 
R.  Co.  V.  Mulford,  162  111.  522,  44  N.  E.  861, 

35:  599 

981.  The  fact  that  each  of  two  connect- 
ing railroads  sells  through  tickets,  taking  its 
own  S'hare  of  the  price  according  to  its 
mileage,  does  not  constitute  them  partners 
so  as  to  render  the  selling  road  liable  for 
failure  of  the  connecting  road  to  honor  such 
a  ticket.  Id. 

982.  The  statements  on  tickets  sold  by  one 
railroad  company  bearing  coupons  good  over 
connecting  roads,  "Issued"  by  such  company 
and,  "Good  for  one  first-class  passage,"  do 
not  constitute  a  contract  by  the  selling  com- 
pany to  transport  the  holder  over  the  con- 
necting roads,  so  as  to  make  it  liable  for 
failure  of  the  latter  roads  to  honor  the 
tickets.  Id. 

9S3.  It  is  not  necessary  to  relieve  a  rail- 
road company  selling  tickets  bearing  cou- 
pons for  transportation  over  connecting 
roads  from  liability  for  failure  of  such  con- 
connecting  roads  to  honor  such  coupons,  that 
the  tickets  should  contain  anything  to  nega- 
tive a  contract  by  the  selling  company  for 
the  entire  journey,  as  there  is  no  presump- 
tion that  it  acts  otherwise  than  as  agent 
for  the  connecting  companies.  Id. 

984.  A  railroad  company  which  sells  a 
quantity  of  coupon  tickets  over  its  own  and 
connecting  roads,  to  brokers,  under  the  rep- 
resentation that  they  can  make  a  through 
rate  less  than  the  regular  through  rate  by 
adding  the  Incni  rate  beyond  the  termi- 
nation of  such  tickets,  is  not  liable  to  such 
brokers  because  of  the  refusal  of  a  connect- 
ing company  to  honor  such  tickets,  as,  in 
the  absence  of  any  contract  other  than  the 
mere  sale  of  tickets,  the  coupons  are  to  be 
regarded  as  distinct  tickets  tor  each  road, 
sold  hy  the  finst  company  as  agent  for  the 
others.  Id. 

2.  Of  Freight. 

a.  In  General. 

Liability  as  to  Bngcrage,  see  supra,  682.684. 
Carrif>r  LimitinT  T>i!'bility  to  Its  Own  Line, 

see  siinra,  884-801. 
Carrier's   Duty  to   Accept  Freight  Destined 

to    P^^int    Beyond   its   Line,   see   supra, 

759,  760. 


Compulsory  Connection  and  Interchange  of 
Business,  see  infra.  III.  b. 

Provision  against  Liability  for  Acts  of, 
as  Interference  with  Commerce,  see 
Commerce,  66,  67. 

Provision  as  to  Liability  Beyond  Line  as 
Interference  with  Commerce,  see  Com- 
merce, 47. 

Burden  of  Proof  as  to  Negligence,  see  Evi- 
dence, 487. 

Oral  Evidence  as  to  Receipt  of  Goods,  see 
Evidence,  785. 

Partnership  between,  see  Partnership,  14. 

AllegatioTis  as  to  Negligence,  see  Pleading, 
3,33. 

Admission  of  Partnership,  see  Pleading,  114. 

See  also  supra.  744,  768,  775,  841.  945. 

For  Editorial  Notes,  see  infra,  IV.  §  38. 

985.  A  carrier  cannot  be  considered  as 
ratifying  the  original  contract  of  shipment 
for  goods  which  it  receives  from  another 
company  and  transports,  when  it  is  bound 
hy  statute  to  perform  such  service.  Dwyer 
V.  Gulf.  C.  &  S.  F.  R.  Co.  75  Tex.  572,  12  S. 
W.  1001,  7:  478 

986.  A  custom  to  take  cars  from  con- 
necting carriers  without  changing  the  goods 
cannot  be  invoked  to  protect  from  negli- 
gence in  failing  to  transport  the  goods  with 
care.  Beard  v.  Illinois  C.  R.  Co.  79  Iowa, 
518.  44  N.  W.  800,  7:  280 

987.  A  carrier  of  live  stock  cannot  re- 
lieve itself  from  liability  for  the  death  of 
animals  by  showing  that  they  died  in  pos- 
session of  a  connecting  carrier,  if  its  own 
negligence  was  the  cause  of  their  death. 
Harman  v.  Norfolk  &  W.  R.  Co.  91  Va.  601, 
22  S.  E.  490,  44:  289 

988.  The  giving  of  a  through  bill  of  lading 
by  a  carrier  contracting  to  carry  goods,  the 
making  of  through  freight  charges,  the 
furnishing  of  one  car  for  the  whole  distance, 
and  the  act  of  the  agent  at  the  end  of  the 
route,  being  the  agent  of  another  company 
than  the  receiving  company,  in  receiving  the 
whole  freight  money,  sufficiently  show  joint 
liability  on  the  part  of  the  two  carriers  for 
failure  to  deliver  the  goods  according  to 
the  contract  made  bv  the  receiving  carrier. 
International  &  O.  N  R.  Co.  v.  Tisdale,  74 
Tex.  8,  11  S.  W.  900,  4:  545 

980.  On  a  shipment  from  Boston  to  At- 
lanta, the  Inst  road  named  on  the  bill  of 
ladintr,  which  runs  into  Atlanta,  cannot 
avoid  its  liability  under  Ga.  Code,  §  2084.  as 
the  last  of  several  connecting  roads,  by  the 
simple  fact  that  it  pushed  the  cars  to  the 
track  of  another  railroad  in  Atlanta,  and 
srot  that  road  to  haul  them  with  its  engine 
214  miles,  and  deliver  them  to  the  mills  to 
which  thev  were  shipped.  Western  &  A.  R. 
Co.  V.  Exposition  Cotton  Mills,  81  Ga.  522. 
7  S.  E.  916,  2:  102 

990.  A  carrier  which  has  engaged  space 
with  an  ocean  transportation  company  for 
a  quar.tity  of  merchandise  is  not  relieved 
from  liability  for  breach  of  the  contract,  by 
the  fact  that,  for  its  benefit  after  the 
broach,  the  bill  was  made  out  to  a  third 
person,  who  had  been  expected  to  furnish 
the  goods  to  fill    the    contract.     Baltimore 


CARRIERS,  II.  c,  2. 


40» 


Steam  Packet  Co.  v.  Patterson,  45  C.  C.  A. 
575,  106  Fed.  736,  66:  193 

991.  A  contract  by  a  carrier,  reading,  "We 
have  this  day  booked  with  you  via  Johns- 
ton Line"  certain  merchandise  for  ocean 
transportation,  constitutes  an  absolute  en- 
gagement to  fill  the  required  space,  for 
breach  of  which  the  one  signing  the  contract 
will  be  liable,  in  the  absence  of  anything  to 
show  that  the  contract  was  merely  part  of 
a  joint-traffic  arrangement  under  which,  in 
case  the  goods  were  not  secured,  each  car- 
rier should  sustain  its  own  loss.  •  Id. 
Duty  to  deliver  to  connecting  carrier. 

992.  No  common-law  duty  rests  upon  a 
common  carrier  to  deliver  a  shipper's  live 
stock  to  a  connecting  carrier  in  order  that 
it  may  reach  a  certain  stock  yard  in  the 
city  to  which  it  is  consigned,  if  the  car- 
rier has  contracted  for  adequate  facilities 
for  handling  the  stock  in  anoth,er  yard  in 
the  same  city.  Central  Stock  YdJrds  Co.  v. 
Louisville  &  N.  R.  Co.  55  C.  C.  A.  63,  118 
Fed.  113,  63:  213 
When  initial  carrier's  liability  ceases. 

993.  A  carrier  by  accepting  for  ship- 
ment goods  marked  to  a  point  beyond  its 
termination  impliedly  agrees  to  carry  them 
to  their  destination,  in  the  absence  of  re- 
strictions limiting  the  contract  of  the  car- 
rier to  its  own  line,  consented  to  by  the 
shipper.  Illinois  C.  R.  Co.  v.  Carter,  165 
111.  570,  46  N.  E.  374,  36:  527 

994.  The  liability  of  a  forwarding  carrier 
ceases  upon  the  safe  delivery  and  ware- 
housing of  the  goods  at  their  destination, 
and  it  is  not  liable  for  a  subsequent  mis- 
delivery of  the  same  by  an  agent  of  the 
connecting  line  or  warehouseman.  Id. 

995.  The  liability  of  a  forwarding  carrier 
after  safely  delivering  goods  at  the  depot 
or  a  warehouse  of  the  connecting  line  at  the 
point  of  destination  cannot  be  extended  by 
its  agent,  in  the  absence  of  authority,  so 
as  to  cover  future  safe  delivery.  Id. 
Receipt  to  init-al,  from  other  carrier. 

996.  S.  C.  Gen.  Stat.  §  1513,  providing 
that  an  initial  carrier  may  exempt  itself 
from  liability  for  goods  lost  or  injured  in 
transit  by  producing  a  receipt  showing  that 
the  goods  were  delivered  to  a  connecting 
carrier  in  due  course  of  transportation,  does 
not  rpquire  the  receipt  to  be  in  any  par- 
ticular form ;  such  written  evidence  of  the 
receipt  of  the  property  by  the  connecting 
carrier  as  will  shift  the  liability  to  account 
for  the  property  to  the  latter  is  sufficient. 
Miller  V.  South  Carolina  R.  Co.  33  S.  C. 
359,  11   S.  E.  1093.  9:  833 

997.  Delay  of  a  railroad  company  in  pro- 
ducing upon  reouest  a  receipt  for  lost  goods 
from  a  steamship  company  to  which  it  was 
the  company's  duty  to  deliver  them,  caused 
bv  mistnke  in  producing  the  receipt  of  the 
first  railroad  company  beyond  it  in  the 
line  of  transportation,  is  not  such  "wilful 
failnro  and  refusal"  to  deliver  the  receipt 
as  will  deprive  the  company  of  the  benefit 
of  a  statutory  provision  permitti»ig  the 
initial  carrier  to  relieve  itself  from  liability 
for  loss  by  the  production  of  such  receipt, 
where   from   the  terms   of  the   act  it  was 


very  doubtful  whether  or  not  the  receipt  of 
the  steamship  company  would  suffice  and 
the  act  had  never  been  judicially  construed. 

Id. 

998.  S.  C.  Gen.  Stat.  §  1513,  requiring  a 
railroad  company,  in  order  to  relieve  itself 
from  liability  for  loss  of  goods  delivered  to 
it  for  transportation  over  its  own  and  con- 
necting roads,  to  produce,  a  receipt  therefor 
from  the  corporation  to  whom  it  was  its 
duty  to  deliver  the  goods  in  the  regular 
course  of  transportation,  includes  a  steam- 
ship company  among  the  corporations  from 
whom  receipts  must  be  produced  when  such 
company  happens  to  form  one  of  the  com- 
mon carriers  in  a  through  line  of  transpor- 
tation agreed  on  by  the  parties,  although 
the  statute  does  not  in  terms  mention 
steamship  lines.  Id. 
Right  to  benefit  of  shipper's  contract  with 

other  carrier. 

999.  A  connecting  carrier  is  not  entitled 
to  the  benefit  of  provisions  in  the  bill  of 
lading  taken  by  the  initial  carrier,  if  it 
makes  a  new  contract  upon  taking  the 
goods  from  the  latter,  and  gives  a  new  bill 
of  lading  stating  the  extent  of  its  liability. 
Browning  v.  Goodrich  Transp.  Co.  78  Wis. 
391,  47  N.  W.  428,  10:  415 

1000.  An  intermediate  carrier  can  derive 
no  benefit  from  a  contract  between  the  first 
carrier  and  the  shipper,  limiting  the  for- 
mer's liability,  which  makes  no  provision 
for  an  extension  of  its  benefits  to  any  other 
than  the  first  carrier.  Adams  Exp.  Co.  v. 
Harris,  120  Ind.  73,  21  N.  E.  340,  7:  214 

1001.  A  connecting  carrier  is  entitled  to 
the  benefit  of  a  stipulation  in  the  bill  of 
lading  exempting  it  from  liability  for  in- 
jury to  the  property  by  wet,  although  it  is 
not  named  in  the  bill  and  the  property 
might  have  been  sent  by  another  route. 
Mears  v.  New  York,  N.  H.  &  H.  R.  Co.  75 
Conn.  171,  52  Atl.  610,  56:  884 
Tracing  property. 

Provision  for,  as  Impairment  of  Obligation 
of  Contract,  see  Constitutional  Law. 
1158. 

Shipper's  Right  of  Action  for  Failure  to 
Trace,  see  Parties.  6. 

1002.  A  carrier  failing  to  comply  with 
the  requirements  of  Ga.  Civ.  Code,  §  2317, 
as  to  tracing  "freight"  which  has  been 
lost,  damaged,  or  destroyed,  and  giving 
information  with  respect  thereto,  becomes 
liable  under  §  2318  for  the  negligence  of  a 
connecting  carrier.  Central  of  Ga.  R.  Co. 
V,  Murphey,  113  Ga.  514,  38  S.  E.  9/0. 

53: 72a 

1003.  That  the  system  employed  by  a 
carrier  in  tracing  goods  delivered  by  it  to 
a  connecting  line,  under  a  contract  exempt- 
ing it  from  responsibility  on  delivery  of 
such  goods  to  a  connecting  line  in  good 
order,  was  inadequate  to  enable  it  to  trace 
the  goods  and  give  information  as  to  the 
time,  place  and  manner  of  loss  or  injury 
thereto  within  thirtv  davs  as  renuired  by 
Ga.  Civ.  Code,  §§  2317,  2318,  does  not  re- 
lieve it  from  lia>^ility  for  the  loss  or  injury 
to  the  goods  if  the  tracing  within  such  time 
was  not  an  impossibility.    Central  of  Ga.  R. 


410 


CARRIERS,  II.    d,  III.  a. 


Ck).  V.  Murphey,  116  Ga.  863,  43  S.  E.  265, 

60:  817 

1004.  The  provision  of  Ga.  Civ.  Code,  §§ 
2317,  2318,  requiring  a  carrier  to  trace  and 
give  information  within  thirty  days  after 
application  as  to  the  time,  place,  and  man- 
ner of  injury  to  goods  shipped,  under  a  con- 
tract relieving  any  of  two  or  more  connect- 
ing carriers  from  Responsibility  on  delivery 
to  the  next  carrier  in  good  order,  is  not 
unreasonable  or  arbitrary  as  to  the  time 
allowed  for  tracing  the  goods  when  applied 
to  a  shipment   from  Georgia  to  Nebraska. 

Id. 

1005.  The  provisions  of  Ga.  Civ.  Code,  §§ 
2317,  2318,  that  when  freight  which  has 
been  shipped,  to  be  conveyed  by  two  or 
more  carriers  to  its  destination,  under  a 
contract  by  which  the  responsibility  of  one 
carrier  ceases  on  delivery  to  the  next  in 
good  order,  has  been  lost,  damaged,  or  de- 
stroyed, it  shall  be  the  duty  of  the  initial 
or  connecting  carrier  on  application  by  the 
shipper,  consignee,  or  their  assigns,  within 
thirty  days  after  the  application,  to  trace 
such  freight  and  inform  the  applicant  in 
writing  as  to  the  time,  place,  and  manner  of 
the  loss  or  injury,  and  the  names  of  the 
parties  and  their  official  position,  if  any,  by 
whom  the  truth  of  the  facts  can  be  estab- 
lished; and  making  a  carrier  who  fails  to 
traco  the  freight  and  give  such  information 
within  the  prescribed  time  liable  for  the 
freight  lost,  damaged,  or  destroyed, — are 
not  unreasonable  and  arbitrary,  nor  an  un- 
lawful regulation  by  the  state  of  interstate 
commerce,  nor  an  infringement  of  the  cor- 
relative liberty  of  silence,  nor  a  compul- 
sory private  discovery  by  statutory  terror. 

Id. 

6.  Selection  of  Route. 

Right   of  Carrier  to   Select  Route   of  Pas- 
senger, see  supra,  16-18,  607. 
See  also  supra,  744. 

1006.  The  carrier's  right  to  select  the 
route  for  through  shipments  does  not  ex- 
tend to  the  selection  of  insolvent  lines  or 
uncertain  or  unreliable  agencies.  Post  v. 
Southern  R.  Co.  103  Tenn.  184,  52  S.  W.  301, 

55:  481 

1007.  An  illegal  advantage  to  a  shipper 
over  other  shippers,  by  way  of  rebates 
from  a  fast  freight  line,  will  not  be  ground 
for  giving  him  the  right,  as  asainst  a  car- 
rier, to  designate  the  route  for  a  through 
shipment  at  through  rates.  Id. 

1008.  The  right  to  designate  the  route  of 
through  shipments  at  through  rates  belongs 
to  the  carrier,  and  not  to  the  shipper,  in  the 
absence  of  any  sufficient  or  controlling 
"reason  to  the  contrary.  Id. 

1000.  A  railroad  company  which  cannot, 
because  of  a  strike,  obey  the  shinping 
directions  as  to  the  route  by  which  the 
goods  shall  he  sent  forward,  is  liable  to  the 
shipper  in  case  it  selects  another  route 
without  consulting  him,  on  which  the 
freight  charges  are  greatly  increased,  where 
means  of  communication  with  the  shipper 
are    easily   available,   and   can    be    utilized 


without  injury  to  the  property,  although 
the  bill  of  lading  stipulates  that  it  may, 
in  case  of  necessity,  forward  the  goods  to 
destination  by  any  route.  Fisher  v.  Boston 
&  M.  R.  Co.  99  Me.  338,  59  Atl.  532,  68:  390 

d.  Criminal  Transportation. 

Liability  for  Violating  Liquor  Law,  see  In- 
toxicating Liquors,  97-101,  and  also 
infra,  IV.  §  35. 

For  Editorial  Notes,  see  infra,  IV.  §  35. 

lOlft.  Common  carriers  are  not  included  in 
the  provision  of  Me.  Rev.  Stat.  chap.  30, 
§  12,  imposing  a  penalty  on  "whoever  .  .  . 
has  in  possession"  between  October  1  and 
January  1  more  than  the  number  therein 
specified  of  the  carcasses  of  certain  wild 
animals.  Bennett  v.  American  Exp.  Co.  83 
Me.  236,  22  Atl.  159,  13:  33 

1011.  A  common  carrier  who  does  not 
know,  or  have  good  reason  to  know,  that 
barrels  received  by  him  for  shipment  con- 
tain short  lobsters,  is  not  liable  for  receiv- 
ing them,  under  Me.  Laws  1889,  chap.  292, 
§  2,  making  it  unlawful  to  catch  or  "pos- 
sess for  any  purpose"  between  specified 
dates  any  lobster  less  than  10%  inches  long. 
State  V.  Swett,  87  Me.  99,  32  Atl.  806, 

29:  714 


III.    Governmental    Control;    Rates;     Dis- 
crimination;   Duty  as  to  Stopping  Places. 

a.  In  General. 

Requirement  of  Blackboard  Announcement 
as  to  Trains,  see  supra,  II.  a,  11. 

Duty  to  Trace  Freight  Shipped  Over  Con- 
necting Lines,  see  supra,  1002-1005. 

Regulation  of  Interstate  Business  of,  see 
Commerce,  II. 

Vested  Rights  in  Contract  for  Interstate 
Transportation,  see  Constitutional  Law, 
1157. 

Mode  of  Giving  Notice  of  Violation  of 
Order,  see  Constitutional  Law,  192. 

Violation  of  Game  Laws  by,  see  Game  Laws, 
2. 

Requiring  Keeping  of  Street  Car  Tickets  for 
Sale,  see  Municipal  Corporations,  243, 
273. 

See  also  supra,  869. 

1012.  Common  carriers  may,  within  the 
limits  of  fairness  and  impartiality,  consult 
their  own  interests  in  making  contracts  for 
the  carriage  of  goods.  Cleveland,  C.  C.  & 
I.  R.  Co.  v.  Closser,  126  Ind.  348,  26  N.  E. 
159,  9:  754 

1013.  A  carrier  may  at  any  time  change 
its  policy  as  to  furnishing  shippers  of  a 
certain  commodity  privileges  which,  under 
the  law,  it  is  not  bound  to  extend  to  them. 
Central  of  Ga.  R.  Co.  v.  Augusta  Brokerage 
Co.  122  Ga.  646,  50  S.  E.  473,  69:  119 

1014-1015.  Land  grants  by  Congress  to 
states  in  aid  of  railroads  do  not  relieve  a 
railroad  thus  aided  from  the  regulation  and 
control  of  the  state  in  which  it  is  incorpo- 
rated. Illinois  C.  R.  Co.  v.  People,  143  111. 
434,  33  N.  E.  173,  19:  119 


CARRIERS.  III.  b. 


411 


1016.  A  foreign  corporation  which  comes 
into  the  state  to  operate  a  railroad  there- 
by undertakes  and  becomes  bound  to  do  it 
according  to  the  terms  and  conditions  im- 
posed by  the  Constitution  and  laws  of  the 
state  upon  domestic  corporations,  in  respect 
to  regulation  of  its  rates.  St.  Louis  &  S. 
F.  R.  Co.  V.  Gill,  54  Ark.  101,  15  S.  W.  18, 

11:452 

1017.  An  express  company  doing  business 
outside  of  the  state  of  its  origin,  though  it 
be  not  a  corporation,  but  a  partnership  en- 
titled to  do  business  there  without  per- 
mission, and  as  free  from  the  control  and 
visitorial  power  of  the  state  as  any  other 
individual  or  partnership,  is  subject,  as  a 
common  carrier,  to  public  control  and  regu- 
lation, and  therefore  may  be  compelled  to 
give  information  to  the  state  as  to  all  its 
property  and  business  within  the  state,  as 
a  basis  for  such  public  regulation  of  its 
business,  but  not  as  to  its  property  out  of 
the  state,  nor  as  to  its  interstate  business, 
except  so  far  as  necessary  to  enable  the 
state  authorities  to  discharge  their  duties 
as  to  its  business  and  property  within  the 
state.  State  ex  rel.  Railroad  &  W.  Com.  v. 
United  States  Exp.  Co.  81  Minn.  87,  83  M. 
W.  465,  50:  667 

1018.  Overcharges  by  a  common  carrier 
on  interstate  shipments  made  prior  to  the 
taking  effect  of  the  Interstate  Commerce 
Act  of  Congress  cannot  be  recovered  by  the 
shipper  by  the  application  of  common-law 
doctrines.  Gatton  v.  Chicago,  R.  I.  &  P.  R. 
Co.  95  Iowa,  112,  63  N.  W.  589,  28:  556 
Confining  sale  of  tickets  to  agents. 

In  Matters  Affecting  Interstate  Commerce, 
see  Commerce,  40,  43. 

Delegation  of  Power  as  to,  see  Constitution- 
al Law,  173. 

Invasion  by  Courts  of  Legislative  Preroga- 
tive as  to,  see  Constitutional  Law,  248. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  422,  423. 

Police  Power  as  to,  see  Constitutional  Law, 
1079,  1080. 

Impairing  Obligation  of  Contract  by,  see 
Constitutional  Law,  1159. 

Due  Process  in  Regulatinsr  Sale,  see  Consti- 
tutional Law,  751-753. 

Injunction  against  Ticket  Brokers,  see  In- 
junction, 71,  80,  501. 

See  also  Prohibition,  9;  Ticket  Brokers. 

For  Editorial  Notes,  see  infra,  IV.  §§  3,  18. 

1019.  The  sale  of  passage  tickets  on  rail- 
roads may  be  confined  by  statute  to  agents 
of  the  railroad  company,  and  a  penalty  im- 
posed upon  the  sale  by  other  persons. 
.Tannin  v.  State.  42  Tex.  Crim.  Ren.  6-31, 
51  S.  W.  1126,  62  S.  W.  419.  53:  349 

1020.  Confining  the  sale  of  railroad  tickets 
to  the  company's  agents  is  not  the  grant  of 
a  monopoly.  Id. 
Redemption  of  ticket. 

1021.  The  word  "owner,"  in  the  Minnesota 
statute  requiring  the  owner  of  a  railroad 
or  steamboat  to  redeem  unused  tir-keta.  in- 
c1udp=<  all  those  who  operate  a  railroad  or 
•steamboat  in  the  transportation  of  pas- 
sengors, — as,  for  example,  lessees,  receivers, 
and  the  like.  State  v.  Corbett,  57  Minn. 
345,  59  N.  W.  317,  24:  498 


Penalty  for  failure  to  furnish  cars. 

As   to   Connecting  Carriers    Generally,    see 

siipra,  II.  c. 
Contract   or   Duty    to    Furnish    Cars,    see 

supra,  II.  b,  8. 
Compelling    Interchangeable     Mileage,     see 

Attorney  General,  4. 
See  also  supra,  9-13;  infra,  1080. 

1022.  The  act  of  1887,  imposing  a  penalty 
on  railroad  companies  for  failure  to  furnish 
cars  to.  shippers,  is  in  no  manner  extended 
or  controlled  by  the  laws  then  existing. 
Houston,  E.  &  W.  T.  R.  Co.  v.  Campbell,  91 
Tex  551,  45  S.  W.  2,  43:  225 

1023.  A  penalty  for  failure  to  furnish 
cars  to  a  shipper  under  Tex.  Rev.  Stat.  arts. 
4497^4502,  cannot  be  imposed  for  failure  to 
furnish  cars  at  a  switch  where  the  carrier 
has  no  agent,  as  "the  agent"  to  whom, 
under  art.  4500,  a  deposit  must  be  made  of 
one  fourth  the  freight  charge  for  the  car, 
means  the  agent  at  or  for  the  station  where 
the  cars  are  desired.  Id. 

1024.  Statutes  imposing  a  penalty  on  car- 
riers for  refusal  to  accept  freight  offered 
for  transportation  do  not  limit  the  com- 
mon-law liability  of  the  carrier.  Parker  v. 
Atlantic  Coast  Line  R.  Co.  133  N.  C.  335,  45 
S.  E.  658,  63:  827 

b.  Compulsory  Connection  and  Interchange 
of  Business;  Discrimination  between 
Carriers,  Hackmen,  etc.;   through  Rates. 

For  Editorial  Notes,  see  infra,  IV.  §  32. 

Connecting  switches;  interchange  of  traffic. 
In  Matters  Affecting  Interstate  Commerce, 

see  Commerce,  50-52d. 
As  Impairment  of  Obligation   of  Contract, 

see  Constitutional  Law,  1161. 
Judicial  Power  of  Courts  as  to,  see  Courts, 

172. 
1025-1026.  A  contract  to  give  all  the  traf- 
fic of  certain  mines  and  furnaces  and  of  a 
railroad  therefrom  at  reasonable  rates  to 
another  and  connecting  railroad,  which 
furnishes  aid  to  develop  the  business  is  not 
ultra  vires  or  in  violation  of  Pa.  Const,  art. 
17,  §§  1,  3,  4,  requiring  railroads  to  carry 
each  other's  traffic  without  discrimination, 
and  "prohibiting  discrimination  in  trans- 
portation for  individuals,  and  prohibiting 
the  consolidation  of  parallel  and  competing 
roads.  Bald  Eagle  Valley  R.  Co.  v.  Nittany 
Valley  R.  Co.  171  Pa.  284,  33  Atl.  239, 

29:  423 

1027.  A  connecting  switch  may  be  or- 
dered by  the  state  railroad  and  warehouse 
commission  at  the  intersection  of  two  rail- 
roads, when  this  is  a  necessity,  because  of 
the  benefit  which  will  accrue  to  state  traffic. 
Jacobson  v.  Wisconsin,  M.  &  P.  R.  Co.  71 
Minn.  519,  74  N.  W.  893,  40:  389 

1028.  Power  to  require  a  connecting 
switch  .at  the  crossing  of  two  railroads,  to 
facilitate  the  transfer  of  cars  from  one 
road  to  the  other,  when  this  will  benefit 
both  state  and  interstate  traffic,  is  within 
the  concurrent  iurisdiction  of  the  state  and 
Federal   authorities.  Id. 

1090- mm  The  transfer  and  interchange 
of   loaded    cars    as    well    as    a    connecting 


412 


CAliIUER3.  III.  b. 


switch  at  the  intersection  of  two  railroads, 
required  by  the  railroad  and  warehouse 
commission  under  Minn.  Gen.  Laws  1887, 
chap.  10,  as  amended  by  Minn.  Gen.  Laws 
ISJo,  ciiap.  91,  does  not  violate  the  consti- 
tutional   rights   of   the   railroad   companies. 

Id. 

1031.  Where  the  charter  of  a  railroad 
company  provided  "that  any  and  all  such 
railroad  or  railroads  hereafter  constructed 
may  connect  and  join  with  the  road  here- 
by contemplated,"  the  connection  thus 
authorized  is  a  physical,  and  not  a  business, 
connection,  and  it  does  not  require  an  inter- 
change of  traffic  at  the  point  of  junction. 
Kentucky  &  I.  Bridge  Co.  v.  Louisville  & 
N.  R.  Co.  37  Fed.  567,  2:  289 

1032.  Refusal  of  a  carrier  to  interchange 
traffic  with  a  new  road,  at  a  point  where 
proper  facilities  therefor  do  not  exist,  does 
not  constitute  any  discrimination,  or  any 
undue  or  unreasonable  preference  or  ad- 
vantage. Id. 

1033.  A  carrier  cannot  be  compelled  by  a 
new  connection  formed  with  its  road  by 
another  railroad,  at  a  point  where  there  are 
no  facilities  for  handling  freight,  to  concede 
the  use  of  its  own  track  and  terminal  facili- 
ties to  the  new  company,  and  accomplish 
the  interchange  of  traffic  at  its  own  yards 
and  with  its  own  employees.  The  use  of 
such  advantages  can  be  acquired  only  by 
mutual  agreement.  Id. 
Through  rates. 

As  to  Matters  Affecting  Interstate  Com- 
merce, see  Commerce,  52a-52c. 

Ilegal  Contract  to  l^stablish,  see  Con- 
spiracy, 183. 

Power  of  Interstate  Commerce  Commission 
as  to.  see  Interstate  Commerce  Com- 
mission, 2. 

Carrier's  Right  to  Injunction,  see  Injunction, 
391,  392. 

1034.  A  statute  requiring  freight  in  car- 
load lots  to  be  transferred  without  unload- 
ing, unless  the  unloading  is  done  without 
charsre.  and  that  smaller  qu-^ntities  shall  be 
transferred  into  the  cars  of  the  connecting 
carrier  at  cost,  which  shall  be  made  a  part 
of  the  joint  rate,  does  not  interfere  with  the 
constitutional  guaranties  for  the  protection 
of  the  rights  and  property  of  the  carriers. 
Burlineton.  C.  R.  &  N.  R.  Co.  v.  Dev,  8? 
Iowa.  312.  48  N.  W.  98,  12:  436 

103.5.  The  power  to  establish  joint 
"thrnunrh  rptos"  for  connecting  carriers  is 
included  within  the  power  of  the  stnte  to 
rocrnlatp  rates  of  chnr<Te3  for  transportation 
of   frpiTht  by   railroads.  Id. 

lO.'^n  lO'^O.  A  railroad  comnany  is  not 
compelled  to  enter  involuntarily  into  con- 
trnrt  rolatio'is  with  other  companies,  by  a 
statute  roquiring  the  adoption  of  joint 
rates,  or.  in  default  thereof,  the  fixing  of 
such  rntes  by  railroad  commissioners,  as  in 
the  latter  case  the  obliixation  of  the  com- 
pany as  to  the  rates  is  one  imposed  by 
law.   and    not   bv   contract.  Id. 

1040.  An  individual  shipper  or  consignor 
cannot  legallv  require  a  railroad  company 
to  send  a  shipment  by  a  particular  route 
beyond  the  company's  line,  at  the  same  or 


equivalent  through  rates  which  such  com- 
pany may  have  established  with  other  con- 
necting lines;  and  what  the  individual 
shipper  of  interstate  commerce  may  not 
lawfully  demand,  common  carriers  engaged 
in  transporting  such  traffic  may  not  law- 
fully require  of  connecting  lines.  Kentucky 
&  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co. 
37  Fed,  567,  2:  289 

1041.  The  making  of  joint  rates  for 
through  shipments  when  part  of  the  haul  is 
on  one  and  part  on  the  other  of  two  con- 
necting railroads  for  which  power  is  given 
by  Minn.  Laws  1895,  p.  214,  §  3  (C),  is  not 
unconstitutional  as  an  attempt  to  make  the 
railroad  companies  partners  for  such  ship- 
ment or  liable  for  each  other's  default,  as 
the  statute  merely  provides  that,  if  the 
companies  fail  to  fix  a  reasonable  total  sura 
for  the  total  haul,  the  commission  shall  do 
so  for  them.  Jacobson  v.  Wisconsin,  M.  & 
P.  R.  Co.  71  Minn.  519,  74  N.  W.  893, 

40:  389 

1042.  Other  connecting  carriers  are  not 
entitled  to  through  billing  and  rating,  and 
to  the  use  of  tracks  and  terminals  of  a 
carrier  which  has  voluntarily  made  an  ar- 
rangement giving  .these  advantages  to  one 
connecting  carrier.  Little  Rock  &  M.  R. 
Co.  V.  St.  Louis  &  S.  W.  R.  Co.  27  U.  S.  App. 
280,  11  C.  C.  A.  417,  63  Fed.  775,  26:  192 
Discrimination  between  express  companies. 

1043.  A  railroad  company  is  not  under 
obligation  to  furnish  an  express  company 
with  facilities  for  doing  an  express  business 
upon  its  road,  such  as  it  provides  for  itself 
or  some  other  express  company,  unless  it 
holds  itself  out  as  a  common  carrier  of  ex- 
press companies.  Atlantic  Exp.  Co.  v. 
Wilmington  &  W.  R.  Co.  Ill  N.  C.  463,  16 
S.  E.  394,  18:  313 

1044.  A  statute  making  it  unlawful  for 
any  common  carrier  to  give  undue  or  un- 
reasonable preference  to  any  person,  com- 
pany, firm,  corporation,  or  locality,  does  not 
require  equal  facilities  to  be  given  to  ex- 
press companies  for  carrying  on  business 
over  a  railroad,  unless  it  holds  itself  out 
as  a  common  carrier  of  such  companies. 

Id. 
Between  hacks,  carriages,  etc. 
Injunction  against  ITaekmen  Soliciting  Busi- 
ness, see   Injunction,  171. 
See  also  Parties,  5. 
For  Editorial  Votes,  see  infra,  IV.  §§  4,  7. 

1045.  A  railroad  company  has  no  right 
to  give  one  hackman  an  exclusive  privilege 
of  entering,  with  his  hacks,  its  inclosed 
station  grounds  to  solicit  passen<rers.  St«ite 
v..l^•..d,  76  Miss.  211,  24  So.  308,       43:  134 

10-16  The  exclusive  right  to  use  the  plat- 
form of  a  railway  company  for  receiving 
and  discharging  passengers  cannot  be  grant- 
ed by  the  company  to  one  hack  owner. 
Montana  Union  R.  Co.  v.  Langlois,  9  Mont. 
419.  21  Pac.  209,  8:  753 

1017.  Neither  can  it  give  a  mononoly  of 
grounds  for  a  hack  and  bus  stand.  Kalama- 
zoo Track  &  B.  Co.  V.  Sootsma,  84  Mi-h. 
194.  47  X.  W.  6B7,  10:  819 

1048.  A  crant  by  a  railroad  company  of 
the   exclusive   right  to   stand   hacks   on   an 


CARRIERS,  III.  b. 


413 


area  owned  by  it  adjacent  to  a  passenger 
station,  for  the  purpose  of  soliciting  busi- 
ness, is  unlawful,  as  the  company,  which 
acquired  its  grounds  through  the  sovereign 
right  of  eminent  domain,  whether  by  pur- 
chase or  by  condemnation,  cannot  grant 
special  privileges  and  immunities  that  the 
state  could  not;  and  such  action  is  also 
against  public  policy  as  tending  to  restrict 
competition  and  to  enhance  prices.  Indian- 
apolis U.  R.  Co.  V.  Dohn,  153  Ind.  10,  53  N. 
E.  937,  45:427 

104i).  The  payment  by  passengers  for 
transportation  includes  payment  for  the 
common  use  of  the  station  facilities,  and 
entitles  them  to  have  the  railroad  company 
refrain  from  coercing  them  into  yielding 
further  tribute  by  giving  an  exclusive  right 
to  a  hackman  to  solicit  their  business  as 
they  leave  the  station.  Id. 

1050.  All  hackmen  and  persons  engaged 
in  the  business  of  conveying  passengers  and 
baggage  for  hire  have  the  right  of  entry, 
without  discrimination,  to  the  depots  of  a 
common  carrier,  to  deliver  or  receive  pas- 
sengers or  baggage,  in  pursuance  of  a  con- 
tract or  order,  subject  to  proper  rules  and 
regulations  for  the  interest  of  the  travel- 
ing public.  Godbout  v.  St.  Paul  Union 
Depot  Co.  79  Minn.  188,  81  N.  W.  835, 

47 :  532 

1051.  Hackmen  and  private  carriers,  in 
common  with  all  others  in  that  business, 
have  the  right  and  privilege  of  soliciting 
public  patronage,  without  being  discrimi- 
nated against  by  a  railroad  company,  at  all 
points  without  the  railroad  depot,  when 
such  points  or  places  have  been  properly 
designated.  Id. 

1052.  A  railroad  company  which  has 
leased  a  hack  stand  on  its  own  property 
cannot  grant  the  lessee  special  privileges 
beyond  the  limits  of  its  own  land  by  pre- 
venting others  from  occupying  hack  stands 
in  the  street.  Pennsvlvania  Co.  v.  Chicago. 
181  111.  289,  54  N.  E.  825,  '  53:  223 

1053.  A  common  carrier  has,  by  virtue  of 
its  right  of  ownership  in  its  property,  the 
control  of  its  depots,  subject  only  to  the 
rights  of  the  public  having  business  re- 
lations with  it.  Godbout  v.  St.  Paul  Union 
Depot  Co.  79  Minn.  188,  81  N.  W.  835, 

47:532 

1054.  A  railroad  company  may  give  the 
exclusive  right  to  solicit  patrons  within  its 
station  to  one  hackman.  Donovan  v. 
Pennsylvania  Co.  57  C.  C.  A.  362,  120  Fefl 
215,  61:140 

1055.  A  grant  of  the  exclusive  privilege 
of  entering  station  grounds  to  solicit  pas- 
sengers or  baggage  is  not  unlawful,  if  its 
terms  are  not  inconsistent  with  the  reason- 
able accommodation  of  the  public.  New 
York,  N.  H.  &  H.  R.  Co.  v.  Scovill,  71  Conn. 
136,  41  Atl.  246,  42:  157 

1056.  A  common  carrier,  by  rules  and 
regulations  which  it  deems  necessary  for 
the  control  of  its  business  within  its  depot 
building,  may  grant  special  and  exclusive 
privileges  to  hackmen  to  solicit  business, 
provided  such  rules  and  regulations  are 
reasonable  and  conduce  to  the  comfort,  con- 


venience, and  interest  of  its  patrons.  God- 
bout v.  St.  Paul  Union  Depot  Co.  7i)  Minn. 
188,  81  N.  W.  835,  47:  532 

1057.  The  grant,  by  a  railroad  company, 
to  a  single  corporation  or  individual,  of  the 
exclusive  right  to  enter  passenger  trains 
and  the  passenger  stations  to  solicit  bag- 
gage, and  of  the  use  of  an  office  in  the 
baggage  room  of  the  railroad  company,  and 
also  of  the  privilege  of  checking  baggage  of 
prospective  passengers  at  hotels  and  resi- 
dences in  advance  of  the  delivery  of  the 
baggage  at  the  railroad  station,  does  not 
violate  any  public  duty  or  deprive  any 
citizen  of  any  lawful  right.  Kates  v. 
Atlanta  Baggage  &  Cab  Co.  107  Ga.  636,  34 
S.  E.    372,  46:  431 

1058.  A  union  depot  company  may  grant 
to  a  transfer  company  the  exclusive  right 
to  use  a  designated  portion  of  its  depot 
grounds  for  the  purpose  of  standing  thereon 
its  hacks  and  vehicles,  and  of  soliciting 
thereon  the  patronage  of  incoming  passen- 
gers; and  a  rule  excluding  from  the  grounds 
all  others  engaged  in  a  like  business,  except 
for  the  purpose  of  delivering  passengers  or 
of  receiving  passengers  who  shall  have 
previously  employed  them,  is  a  reasonable 
rule,  and  may  be  enforced  so  long  as  said 
transfer  company  provides  and  furnishes  at 
such  depot  adequate  accommodations  in  the 
way  of  vehicles  to  meet  the  reasonable  re- 
quirements of  the  traveling  public,  and 
makes  no  greater  charge  for  its  services  in 
carrying  passengers  and  baggage  to  and 
from  such  station  than  is  made  or  may  be 
permitted  to  be  made  by  others  for  like 
services.  State  ex  rel.  Sheets  v.  Union 
Depot  Co.  71  Ohio,  379,  73  N.  E.  633, 

68:792 

1059.  An  exclusive  privilege  given  by  a 
railroad  company  to  one  baggage  transfer 
company,  of  entering  the  railroad  depot  to 
solicit  business,  without  interfering  with  the 
right  of  a  rival  company  to  receive  and  de- 
liver baggage  at  the  station,  is  not  in  vio- 
lation of  Va.  act  March  3,  1892,  prohibit- 
ing any  undue  or  unreasonable  preference 
by  any  common  carrier  to  any  person,  since 
this  statute,  which  was  adopted  from  Eng- 
land, had  been  previously  construed  by  the 
English  courts  to  apply  only  to  preferences 
by  common  carriers  in  respect  to  their 
servif es  as  carriers.  Norfolk  &  W.  R.  Co.  v. 
Old  Dominion  Baggage  Transfer  Co,  99  Va. 
Ill,  37  S.  E.  784,  50:  722 

1060.  Teamsters  1  ave  no  right,  either  at 
common  law  or  under  a  statute  renuiring 
railroad  companies  to  furnish  facilities  for 
the  accommodation  of  the  public,  and  to 
furnish  to  all  persons  equal  terms,  facili- 
ties, and  accommodations  for  the  transpor- 
tation of  persons  and  property  over  their 
roads,  and  for  the  use  of  buildings  and 
grounds  in  connection  with  such  transpor- 
tation, to  enter  upon  the  railroad  property 
to  solicit  the  privilege  of  carrying  the  bag- 
gage of  passengers:  but  the  railroad  com- 
pany may  give  such  right  to  one  of  them, 
and  exclude  others  from  its  grounds,  if 
the  reasonable  reauirements  of  passengers 
are      thereby      fully      met.       Hedding     v. 


414 


CARRIERS,  III.  c,  1. 


Gallagher,  72  N.  H.  377,  57  AtL  225, 

64:811 

1061.  Each  hackman  may  be  assigned  a 
separate  stand  at  the  depot  ground  of  a 
railroad  company,  and  may  be  ejected  from 
the  stand  assigned  to  another  for  refusing 
to  leave  it,  if  no  unnecessary  force  is  used. 
Cole  V.  Rowen,  88  Alich.  219,  50  N.  W.  138, 

13:848 

1062.  The  owner  of  an  omnibus  line 
which  is  given  access  to  depot  grounds  and 
allowed  by  the  railroad  company  to  occupy 
a  particular  stand  cannot  complain  because 
the  position  is  not  as  favorable  as  that 
given  to  a  competing  line.  Lucas  v.  Herbert, 
148  Ind.  64,  47  N.  E.  146,  37:  376 

1063.  A  rule  excluding  unlicensed  hack- 
men  from  a  wharf  will  not  make  one  of 
them  a  trespasser  in  going  there  for  a  pas- 
senger whom  he  is  specially  ordered  to 
meet  on  the  arrival  of  a  steamboat.  Gris- 
wold  V.  Webb,  16  R.  I.  649,  19  Atl.  143, 

7:302 

1064.  The  implied  license  of  the  owner 
and  driver  of  a  carriage  to  enter  railroad 
grounds  for  a  passenger  who  has  ordered 
the  carriage,  notwithstanding  the  exclusive 
privilege,  given  by  the  railroad  company  to 
another  person,  of  entering  such  grounds  to 
solicit  such  business,  is  violated  so  as  to 
make  him  a  trespasser  if,  while  there,  he  so 
places  his  carriage  and  conducts  himself  as 
to  indicate  his  willingness  to  receive  and 
transport  any  other  passenger.  Boston  & 
A.  R.  Co.  V.  Brown,  177  Mass.  65,  58  N.  E. 
189,  52:  418 

1065.  The  fact  that  the  driver  of  a  pub- 
lic carriage,  who  solicits  business  on  depot 
grounds,  with  knowledge  that  another  has 
the  exclusive  privilege  therefor,  is  doing 
the  business  under  a  contract  with  a  hotel 
keeper,  does  not  relieve  him  from  liability 
for  his  trespass,  since  notice  to  him,  so  far 
as  he  represents  the  hotel  keeper,  consti- 
tutes notice  to  the  latter.  Id. 

1066.  A  hackman  or  private  carrier  for 
hire  is  not  a  party  having  such  relations 
with  a  common  carrier  as  will  permit  him 
to  enter  a  depot  to  solicit  business  from 
passengers.  Godbout  v.  St.  Paul  Union 
Depot  Co.  79  Minn.  188,  81  N.  W.  835, 

■47:  532 

1067.  An  ordinance  requiring  hackmen  to 
keep  outside  a  railroad  depot  while  trains 
are  there,  and  leave  a  clear  passageway  at 
the  entrance,  cannot  be  limited  in  operation 
by  a  prior  contract  by  which  the  railroad 
company  has,  "so  far  as  it  is  lawful,"  grant- 
ed to  a  hackman  the  exclusive  right  to  enter 
the  depot  and  trains  for  soliciting  passen- 
gers. Lindsey  v.  Anniston,  104  Ala.  257. 
16  So.  545,  27:436 

c  Rates;    Discrimination    between    Passen- 
gers or  Shippers;  Rebates. 

1.  In  General. 

Charging  Extra  Fare  in  Certain  Cases,  see 

supra,  IT.  a,  10,  d. 
Requiring  Establishment  of  Through  Rates 

for  Connecting  Carriers,  see  supra,  1034- 

1042. 


Regulation  of  Rates  in  Interstate  Business, 

see  Commerce,  53-61. 
Allowing  Attorney's  Fees  in  Proceeding  for 

Violation,  see  Constitutional  Law,  576. 
Fixing  Rates   as  Impairment  of  Ooligation 

of    Contract,    see    Constitutional    Law, 

1145-1148. 
Schedule  of  Rates  as  Evidence,  see  Evidence, 

851. 
Injunction  as  to  Rates,  see  Injunction,  314- 

316,  468. 
Mandamus    to    Prevent    Over    Charge,    see 

Mandamus,  165. 
Passenger's  Right  of  Action  on  Contract  of 

Carrier  with  Town,  see  Parties,  73. 
Action  to  Enforce  Order  of  Railroad  Com- 
missioners, see  Parties,  95. 
Compelling     Abolition     of     Reconsignment 

Charge,  see  Quo  Warranto,  26. 
Extension    of    Time    of    Taking    EflFect    of 

Schedules,  see  Railroad  Commissioners, 

2. 
Special  Legislation  as  to,  see  Statutes,  302, 

303. 
Regulation  of   Telephone   Rates,  see   Tele- 
phones, 19-24. 
See  also  supra,  992,  1007;  Statutes,  423. 
For  Editorial  Notes,  see  infra,  IV.  $  5. 

1068.  W.  Va.  Code  1891,  chap.  54,  §  82c, 
subs.  7,  8,  as  to  classification  of  freight  and 
rates  of  charges  therefor,  are  repealed  by 
W.  Va.  Acts  1895,  chap.  17.  Norfolk  &  W. 
R.  Co.  V.  Pinnacle  Coal  Co.  44  W.  Va.  574, 
30  S.  E.  196,  41 :  414 

1069.  The  court  will  not  presume  that  a 
contract  between  a  carrier  and  shipper 
which  is  valid  in  itself  violates  the  sched- 
ule which  had  been  prepared  by  the  public 
authorities,  in  the  absence  of  anything  in 
the  contract  or  pleadings  to  indicate  that  it 
does  so.  Laurel  Cotton  Mills  v.  Gulf  &  S.  I. 
R.  Co.  84  Miss.  339,  37  So.  134,  66:  453 
Unauthorized  overcharge  by  conductor. 

1070.  A  railroad  company  is  not  liable  for 
the  penalty  of  $500  for  overcharge  of  freight 
or  passenger  rates  under  W.  Va.  Code  1891, 
chap.  54,  p.  559,  cl.  v.,  for  the  mere  charge 
of  it.  by  a  conductor,  unless  the  company 
authorized  or  approved  the  act.  Hall  v. 
Norfolk  &  W.  R.  Co.  44  W.  Va.  36,  28  S.  E. 
754,  41:669 
Posting  or  filing  rates. 

1071.  A  pamphlet  hanging  in  a  railroad 
company's  office,  containing  freight  rules 
and  rates,  although  the  law  requires  them 
to  be  posted,  is  not  of  itself  constructive 
notice  of  its  contents.  Coupland  v.  Housa- 
tonic  R.  Co.  61  Conn.  531,  23  Atl.  870,  15:  534 

1072.  To  enforce  a  contract  for  freight 
rates  a  shipper  is  not  required  to  prove  that 
the  carrier  has  complied  with  its  statutory 
duty  to  file  the  rates  established  thereby 
with  the  proper  authorities.  Laurel  Cotton 
Mills  V.  Gulf  &  S.  L  R.  Co.  84  Miss.  339, 
37  So.  134,  66:463 
Penalty  for  overcharge. 

Fine  for  Overcharge,  see  Fines,  1,  3. 
See  also  supra,  1070. 

1073.  Voluntary  payment  of  an  over- 
charge by  a  carrier  will  not  preclude  a  re- 
covery for  a  statutory  penalty.     St.  Louis  & 


CARRIERS,  III.  c,  3. 


415 


S.  P.  R  Co.  T.  Gill,  54  Ark.  101,  15  S.  W. 
18,  11:452 

1074.  The  fact  that  a  person  rode  on 
trains  for  the  sole  purnose  of  accumulating 
penalties  against  the  carrier  by  payment  of 
excessive  fares  which  thei  carrier  demanded 
will  not  preclude  a  recovery  for  statutory 
penalties  imposed  for  such  overcharges.     Id. 

2.  Power  to  Fix  Rates;  Mileage  Tickets. 

Illegal  Combinations  of  Carriers,  see  Con- 
spiracy, II.  d. 

Delegation  of  Power  as  to,  see  Constitution- 
al Law,  191,  220-222. 

Equal  Protection  as  to,  see  Constitutional 
Law,  421. 

Due  Process  aa  to,  see  Constitutional  Law, 
741-745. 

For  Editorial  Notes,  see  infra,  IV.  §  5. 

1075.  The  legislature  has  the  power  to  fix 
the  maximum  passenger  and  freight  rates 
which  railroad  companies  may  charge. 
Pingree  v.  Michigan  C.  R.  Co.  118  Mich.  314, 
76  N.  W.  635,  53:  274 

1076.  The  exclusive  right  to  fix  freight 
and  passenger  rates  within  the  maximum 
limit,  conferred  upon  the  Michigan  Central 
Railroad  Company  by  §  15  of  its  charter, 
has  not  been  lost  or  surrendered  by  the 
company's  acceptance  of  additional  privi- 
leges under  acts  professedly  or  impliedly 
amendatory  of  its  charter,  and  under  the 
general  railroad  law,  or  by  its  absorption  of 
the  property  and  franchises  of  other  rail- 
corporations.  Id. 

1077.  The  exclusive  power  to  fix  passen- 
ger and  freight  rates,  within  the  maximum 
limit,  which  could  not  be  impaired  bv  subse- 
quent legislation  attempting  to  fix  such 
rates,  was  conferred  upon  the  Michigan  Cen- 
tral Railroad  Company  by  §  15  of  its  char- 
ter, providing  that  it  shall  be  lawful  for  the 
company  to  fix  the  tolls  and  charges  for  the 
transporta/tion  of  property  and  persons,  sub- 
ject only  to  a  limitation  as  to  passengers  of 
3  cents  a  mile;  and  such  power  is  not  limit- 
ed by  §§  11,  30,  authorizing  the  company  to 
charge  such  tolls  as  shall  be  lawfully  estab- 
lished by  by-laws,  and  to  pass  such  by-laws 
as  shall  be  necessary  to  carry  into  execution 
the  powers  vested  in  it,  provided  they  are 
not  contrary  to  the  laws  or  Constitution  of 
the  United  States  or  of  the  state.  Id. 

1078.  In  order  to  exempt  a  common  car- 
rier from  legislative  control  over  its  rates 
of  fare,  the  exemption  must  be  made  by 
clear  and  unmistakable  language  inconsist- 
ent with  the  exercise  of  such  power  by  the 
leofislature.  Indianapolis  v.  Xa\in,  151  Ind. 
139.  156,  47  N.  E.  525,  51  N.  E.  80,      41 :  337 

1078a.  A  railroad  is  not  exempt  from  state 
regulations  of  its  rates  by  the  fact  that  it 
has  been  declared  a  post  and  military  route 
and  national  highway  by  acts  of  Congress 
which  panted  to  it  lands  for  a  ri?ht  of 
way.  St.  Louis  &  S.  F.  R.  Co.  v.  Gill,  54 
Ark.  101,  15  S.  W.  18,  11:  452 

Mileage  tickets. 

Statutory  Requirement  as  Interference  with 
Interstate  Commerce,  see  Commerce,  42. 


Compelling  Issuance  of,  see  Attorney  Gen- 
eral, 4. 

Due  Process  as  to,  see  Constitutional  Law, 
742. 

1079.  Mich.  Pub.  Acts  1891,  act  No.  90, 
providing  for  the  issuance  of  family  mileage 
tickets,  cannot  be  ueemed  an  exercise  of 
the  power  of  amendment  reserved  in  the 
charter  of  the  Michigan  Central  Railroad 
Company,  as  it  does  not  purport  to  be  an 
amendment  of  the  charter,  and  contains  no 
provision  for  compensating  the  company  for 
the  loss  of  its  exclusive  right,  under  the 
charter,  to  fix  its  fares.  Pingree  v.  Michi- 
gan C.  R.  Co.  118  Mich.  314,  76  N.  W.  635, 

53:  274 

1080.  A  statute  requiring  railroad  com- 
panies to  issue  mileage  tickets  and  to  re- 
ceive those  of  other  roads  in  payment  of 
fare,  without  providing  any  fund  for  their 
redemption,  or  making  them  a  lien  on  any 
tangible  property,  or  putting  any  limit  on 
the  number  of  them  which  may  be  issued, 
or  the  time  within  which  they  must  be  used, 
is  unconstitutional  as  an  appropriation  of 
individual  property  to  public  use  without 
the  owner's  consent  and  without  legal  pro- 
vision for  a  reasonable  compensation  there- 
for. Attorney  General  v.  Old  Colony  R.  Co. 
160  Mass.  62,  35  N.  E.  252,  22:  112 
Rates  on  street  cars  generally. 

Due  Process  as  to,  see  Constitutional  -Law, 

741. 
Rates  of  Fare  of  Leased  Road,  see  Street 

Railways,  54-57. 

1081.  A  municipal  corporation  has  no 
power  to  make  a  contract  with  a  street  rail- 
road company  which  will  prevent  the  legis- 
lature from  regulating  its  rates  of  fare. 
Indianapolis  v.  Navin,  li>l  Ind.  139,  156,  47 
N.  E.  525,  51  N.  E.  80,  41 :  337 

1082.  An  ordinance  regulating  the  rate  of 
fare  "to  be  charged"  by  street  railway  com- 
panies, and  providing  for  transfers  between 
lines  which  do  "now  or  shall  hereafter" 
join,  connect,  etc.,  is  not  limited  to  roads  in 
existence  at  the  time  of  its  passage.  Chi- 
cago Un'on  Traction  Co.  v.  Chicago,  199  111. 
484,  65  N.  E.  451,  59:  631 

1083.  An  ordinance  providing  that  the 
fare  to  be  charged  by  a  company  authorized 
to  construct  street  railways  within  certain 
divisions  of  the  mimicipality  shall  not  ex- 
ceed a  certain  rate  "for  any  distance"  does 
not  give  a  right  to  charge  a  full  fare  upon 
every  car,  but  entitles  the  passenger  to 
travel  any  distance  within  such  divisions 
for  one  fare,  although  in  so  doing  it  is  neces- 
sary for  him  to  change  cars.  Id. 

1084.  Power  to  -require  the  giving  of 
transfer  tickets  between  street  car  lines 
operated  by  one  company  is  included  in 
charter  authority  "to  prescribe  the  compen- 
sation" of  such  companies.  Id. 

1085.  Power  to  prescribe  the  compensa- 
tion of  horse  car  companies  is  conferred  on 
a  municipality  by  charter  authority  to 
regulate  hackmen,  omnibus  drivers,  cabmen, 
"and  all  others  pursuing  like  occupations, 
and  to  prescribe  their  compensation."        Id. 

1086.  The  standard  of  measurement  con- 
templated by  Ohio  Rev.  Stat.  §  3374,  pro- 


416 


CARRIERS,  III.  c.  3. 


viding  that  railroad  companies  shall  not 
charge  for  the  transportation  of  passengers 
a  rate  exceeding  3  cents  a  mile  for  a  dis- 
tance of  more  than  8  miles,  is  the  mile, 
without  regard  to  fractions  thereof,  and  the 
3-cent  limit  does  not  apply  to  any  distance 
less  than  9  miles.  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  V.  Wells,  65  Ohio  St.  313,  62  N.  E. 
332,  58:651 

1087.  Any  doubt  as  to  the  right  of  a 
street  railway  company  to  fix  its  fares  with- 
in a  specified  limit  will  be  resolved  against 
such  right.  Chicago  Union  Traction  Co.  v. 
Chicago,  199  111.  484,  65  N.  E.  451,  59:  631 
Duty  "to   sell  tickets  at   reduced  rates   on 

street  cars. 

1088.  The  duty  of  a  street  railway  com- 
pany to  sell  tickets  in  quantities  at  reduced 
rates  on  each  car,  by  virtue  of  the  terras  of 
its  franchise  from  a  certain  town  from 
which  it  runs  to  a  neighboring  city,  extends 
to  a  passenger  on  the  line  who  gets  on  the 
car  and  ofTers  to  buy  such  tickets  at  a  point 
outside  the  town.  Rice  v.  Detroit,  Y.  &  A. 
A.  Ry.  122  Mich.  677,  81  N.  W.  927,      48:  84 

1089.  A  street  railway  company  which  has 
assumed  to  complj'  with  the  terms  of  its 
franchise  requiring  sales  of  tickets  at  re- 
duced prices  for  a  certain  trip,  by  providing 
separate  tickets  for  different  parts  of  the 
trip,  without  offering  any  through-trip 
ticke-ts  for  sale,  and  which  has  accepted 
a  ticket  for  one  portion  of  the  trip,  cannot 
escape  liability  for  refusing  to  sell  tickets 
at  the  reduced  price  for  the  remaining  part 
of  the  trip,  on  the  ground  that  its  franchise 
obliees  it  to  sell  through  tickets  only.       Id. 

1090.  An  ordinance  requiring  street  rail- 
road tickets  to  be  kept  for  sale  by  the  con- 
ductor or  driver  of  every  car  is  not  unrea- 
sonable, and  is  within  the  statutory  grant  of 
power  to  fix  and  determine  the  fare.  Stern- 
berg v.  State,  36  Neb.  307,  54  N.  W.  553. 

19:  570 

1091.  An  ordinance  requiring  tickets  to  be 
kept  for  sale  upon  street  cars  is  within  a 
reservation  of  power  to  maKe  such  rules 
and  reETulations  from  time  to  time  as  may 
be  deemed  necessary  to  protect  the  interests, 
welfare,  or  accommodation  of  the  public. 
Detroit  v.  Ft.  Wavne  &  B.  I.  R.  Co.  95 
Mich.  456,  54  N.  W.  958,  20:  79 

3.  Reasonableness  of  Rates. 

Requirements  as  to  Extra  Fare,  see  supra, 

II.  a,   10,  d. 
Makin?     Commissioners'     Schedule     Prima 

Facie   Evidence  of  Reasonableness,   see 

Constitutional  Law,  919. 
Inquiry  by  Courts  as  to,  see  Courts,   179, 

180. 
Sufficiency  of  Proof  of,  see  Evidence,  2308. 
See  also  .Tnrv.  50. 
For  Editorial  Notes,  see  infra,  TV.  §  5. 

1092.  A  common  carri'er  cannot  lawfully 
make  unreasonable  charges  for  his  services. 
or  unjust  discrimination  between  his  cus- 
tomers. Cook  V.  Chicago.  R.  I.  &  P.  R.  Co. 
81  Iowa.  ."551,  46  N.  W.  1080,  9:  764 

1093.  Where  a  schedule  of  rates  for  rail- 


road charges,  fixed  by  legislative  authoiity, 
will  not  pay  the  cost  of  necessary  senice, 
appliances  and  the  repair  thereof,  and  in- 
terest on  bonds,  and  then  leave  something 
for  dividends,  its  enforcement  will  be  en- 
joined. Chicago  &  N.  W.  R.  Co.  v.  Dey, 
35  Fed.  806,  1 :  744 

1094.  In  a  suit  to  restrain  the  enforce- 
ment o"f  unreasonable  rates,  it  is  no  defense 
that  plaintiff  is  a  foreign  corporation  and 
may  retire  when  the  business  ceases  to  be 
profitable,  or  that  it  operates  through  other 
states,  where  no  rates  are  fixed  which  will 
enable  it  to  make  profit.  Id. 

1095.  In  a  suit  to  restrain  the  enforce- 
ment of  unreasonable  rates  it  is  no  defense 
that  the  reduced  rates  may  increase  the 
volume  of  business,  and  make  it  more  re- 
munerative in  the  future.  Id. 

1096.  The  fact  that  Iowa  act  April  5, 
1888  (Laws  22  Gen.  Assem.  chap.  28),  to 
make  and  put  in  effect  a  schedule  of  rates 
for  railroad  transportation  within  the  state, 
imposes  a  penalty  to  be  enforced  by  crimi- 
nal prosecution  against  any  railroad  com- 
pany which  shall  charge  "more  than  a  fair 
and  reasonable  rate  of  toll,"  does  not  render 
the  act  invalid  as  being  a  penal  act  which 
fails  to  describe  the  offense  covered  there- 
by with  suflScient  certainty,  as,  taken  as 
a  whole,  the  act  makes  the  commissioners' 
schedule  the  test  as  to  reasonableness  of 
rates.  Id. 

1097.  The  provision  of  a  statute  that  rates 
fixed  by  railroad  commissioners  shall  be  re- 
garded as  prima  facie  reasonable  is  within 
the  power  of  the  state  as  to  prescribing 
rules  of  evidence  in  all  proceedings  under 
the  laws  of  the  state.  Burlington,  C.  R.  & 
N.  R.  Co.  V.  Dey,  82  Iowa,  312,  48  N.  W. 
98,  12:436 

1098.  A  statute  giving  railroad  commis- 
sioners authority  to  fix  joint  rates  for  a 
railroad  makes  the  rules  thus  fixed  only 
prima  facie  evidence,  although  not  expressly 
limiting  them  to  that  effect,  where  the  only 
penalties  are  for  charging  unjust  ana  un- 
reasonable rates,  and  a  former  statute  which 
did  not  extend  to  joint  rates,  and  of  which 
this  was  an  amendment,  expressly  limited 
the  effect  of  the  commissioners'  order  as  to 
rates  to  prima  facie  evidence.  Id. 

1099.  There  is  no  uncertainty  in  a  statute 
prescribing  a  penalty  for  unreasonable  rail- 
road charges,  and  declaring  that  rates  fixed 
by  railroad  commissioners  as  the  maximum 
shall  be  prima  facie  reasonable,  on  the 
wround  that  it  does  not  permit  any  charge 
with  certainty  of  its  reasonableness,  as  the 
state  is  precluded  from  denying  that  the 
commissioners'   rates   are   reasonable.       Id. 

1100.  The  enforcement  of  a  tariff  of 
freight  and  passenger  rates  which  will  not 
pay  the  expenses  of  operating  a  railroad, — 
Held,  upon  the  pleadings,  to  show  an  abuse 
of  the  discretion  given  to  railroad  commis- 
ooners  by  the  statute  authorizing  them  to 
prescribe  reasonable  and  just  rates  of  freight 
nnd  passenger  transportation,  and  to 
amount  to  a  taking  of  the  railroad  com- 
pany's property  without  just  compensation. 


CARRIERS,  III.  c,  4. 


417 


Pensacola    &   A.   R.    Co.    v.    State,   25   Fla. 
310,  .5  So.  833,  3:661 

1101.  WTiere  a  tariff  of  freight  and  passen- 
ger rates  has  been  established  by  the  rail- 
road commissioners,  and  the  railroad  com- 
pany and  the  commissioners  differ  as  to 
whether  such  rates,  considered  as  a  whole, 
will  prove  remunerative  to  the  company, 
and  there  is  room  for  a  difference  of  intelli- 
gent opinion  on  the  question,  the  courts 
cannot  interfere  or  substitute  their  judg- 
ment for  that  of  the  commissioners,  but  the 
tariffs  as  fixed  by  the  commissioners  must, 
in  so  far  as  the  courts  are  concerned,  be  left 
to  the  test  of  experiment.  Id. 

1102.  The  courts  have  no  power  to  make 
freight  or  passenger  tariffs.  Id. 

1103.  The  courts  will  not  interfere  or 
grant  any  relief  to  a  railroad  company 
against  rates  fixed  by  commissionerg,  upon  a 
complaint  made  as  to  one  or  several  rates 
only,  or  where  the  freight  and  passenger 
rates  established  by  the  commissioners  are 
not   assailed   as   an   entirety.  Id. 

1104.  Part  only  of  the  line  of  a  railroad 
company  cannot  be  taken  separately  in  test- 
ing the  justice  of  a  statute  regulating  rates 
of  transportation.  St.  Louis  &  S.  F.  R.  Co. 
T.  Gill,  54  Ark.  101,  15  S.  W.  18,  11:  452 

1105.  The  justice  of  a  statute  limiting 
rates  of  transportation  must  be  determined 
with  reference  to  its  effect  on  the  whole  of 
a  class  of  railroads,  where  they  are  classified 
by  the  statute,  and  not  with  reference  to 
one  particular  road.  Id. 

4.  Discrimination;    Rebates. 

Matters  as  to  Interstate  Business,  see  Com- 
merce, 32,  56. 

Measure  of  Damages  for,  see  Damages,  238, 
239. 

Indictment  for  Discrimination,  see  Indict- 
ment, etc.,  48,  119-126. 

Compelling  Carrier  to  Furnish  Equal  Facil- 
ities, see  Injunction,  50. 

Cross  Bill  in  Action  to  Prevent  Discrimina- 
tion,   see    Pleading,    545. 

Authority  to  Hear  Complaints  as  to,  see 
Railroad  Commissioners,  3. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes,   114. 

Adopting  Construction  of  Adopted  Statute 
as  to.  See  Statutes,  527. 

Discrimination  in  Telegraph  Rates,  see  Tele- 
graphs, 12-14. 

Question  for  Jury  as  to,  see  Trial,  499. 

See  also  supra,  1042;  Parties,  163. 

For  Editorial  Notes,  see  infra,  IV.  §§  4,  5. 

1106.  Competition  in  transportation  does 
not  prevent  "substantially  similar  circum- 
stances and  conditions,"  within  the  meaning 
of  Ky.  Const.  §  218,  and  Ky.  Stat.  §  820, 
but  those  words  relate  to  the  actual  cost  of 
transportation.  Louisville  &  N.  R.  Co.  v. 
Com.  104  Kv.  226,  46  S.  W.  707,  105  Ky.  179, 
47  S.  W.  598,  43:541 

1107.  The  purpose  of  a  carrier  to  suppress 
competition  does  not  make  it  unlawful  to 
offer  low  rates  when  a  rival  vessel  is  loading 
to  those  only  who  will  not  ship  anything  by 

L,R.A.  Dig.— 27. 


the  latter.     Lough  v.  Outerbridge,  143  N.  Y. 
271,  38  N.  E.  292,  25:674 

1108.  Mere  inequality  between  the  rate 
charged  a  shipper  and  the  published  tariff 
rates  does  not  constitute  unjust  discrimina- 
tion, within  the  meaning  of  Colo.  Const,  art. 
15,  §  6,  prohibiting  "undue  or  unreasonable 
discrimination."  Bayles  v.  Kansas  P.  R.  Co. 
13  Colo.  181,  22  Pac.  341,  5:  480 

1109.  Discrimination  in  the  making  of 
contracts  by  a  carrier  for  the  carriage  of 
goods,  without  partiality,  is  inoffensive. 
Partiality  exists  only  in  cases  where  ad- 
vantages are  equal  and  one  party  is  unduly 
favored  at  the  expense  of  another  who 
stands  upon  an  equal  footing.  Cleveland, 
C.  C.  &  I.  R.  Co.  V.  Closser,  126  Ind.  348,  26 
N.  E.  159,  9:  754 
Kentucky  &  I.  Bridge  Co.  v.  Louisville  & 
N.  R.  Co.  37  Fed.  567,  2:  289 

1110.  Mere  discrimination  in  freight  rates 
by  a  common  carrier  against  a  shipper  was 
not  a  wrong  for  which  the  common  law  gave 
a  remedy,  so  as  to  come  within  the  clause 
in  the  United  States  statute  (U.  S.  Rev. 
Stat.  §  711,  U.  S.  Comp.  Stat.  1901,  p.  577) 
conferring  jurisdiction  over  maritime  cases 
upon  United  States  courts  to  the  exclusion 
of  state  courts,  which  saves  to  suitors  in  all 
cases  "the  right  of  a  common-law  remedy 
where  the  common  law  is  competent  to  give 
it."  Cowden  v.  Pacific  Coast  S.  S.  Co.  94 
Cal.  470,  29  Pac.  873,  18:  221 

1111.  A  railroad  company  cannot  discrim- 
inate in  favor  of  a  shipper  who  is  able  to 
furnish  a  large  amount  of  freight,  over 
one  engaged  in  the  same  business  who  is  un- 
able to  furnish  the  same  quantity, — at  least 
where  both  ship  in  carload  lots.  Louisville, 
E.  &  St.  L.  Consol.  R.  Co.  v.  Wilson,  132 
Ind.  517,  32  N.  E.  311.  18:  105 

1112.  A  carrier  cannot  rightfully  establish 
rates  in  order  to  keep  on  its  own  line  ma- 
terial for  which  it  has  use,  or  to  keep  the 
price  low  for  its  own  advantage.  Id. 

1113.  A  contract  with  a  shipper,  of  such 
character  as  to  destroy  the  business  of  his 
rivals  by  giving  him  a  monopoly,  is  unjust 
without  regard  to  the  consideration  upon 
which  it  is  based.  Id. 

1114.  A  corporaton  created  by  the  state  of 
Ohio,  and  engaged  in  carrying  goods  for  hire 
as  a  common  carrier,  has  no  franchise,  privi- 
lege, or  right  to  discriminate  in  its  freight 
rates  in  favor  of  one  shipper,  even  when  it 
is  necessary  to  do  so  to  secure  his  custom, 
if  the  discriminating  rate  will  tend  to  cre- 
ate a  monopoly  by  excluding  from  their 
proper  markets  the  products  of  the  com- 
petitors of  the  favored  shipper.  State  ex 
rel.  Kohler  v.  Cincinnati,  W.  &  B.  R.  Co.  47 
Ohio  St.  130,  23  N.  W.  928,  7:319 

1115.  Where  a  corporation  fixes  a  rate  of 
freight  per  hundred  pounds,  for  carrying  pe- 
troleum oil  in  tank  cars,  substantially  lower 
than  its  rate  for  transporting  it  in  barrels  in 
carload  lots,  it  is  exercising  "a  franchise, 
privilege,  or  right  in-  contravention  of  law," 
within  the  meaning  of  Ohio  Rev.  Stat.  5 
6761,  cl.  4.  Id. 

1116.  Special  freight  rates  for  transporta- 
tion by  ship,  which  are  too  low  to  be  profit- 


418 


CARRIERS,  III.    c.  4. 


able,  and  are  offered  by  the  carrier  only  at 
particular  periods  when  a  rival  vessel  is 
loading  and  on  the  single  condition  of  the 
shipper's  stipulation  not  to  ship  by  the  rival 
vessel,  cannot  be  claimed  by  a  shipper  who 
refuses  to  make  such  stipulation,  but  he 
may  be  lawfully  charged  the  ordinary 
reasonable  rates  for  shipment  during  the 
same  period  in  which  the  lower  rates  are 
given  to  those  who  comply  with  the  con- 
dition. Lough  V.  Outerbridge,  143  N.  Y.  271, 
38  N.  E.  292,  25:  674 

1117.  Notice  by  a  carrier  of  special  rates 
to  other  shippers  entitled  thereto  by  dif- 
ference of  conditions  need  not  be  given  to 
regular  shippers  in  order  to  protect  the  car- 
rier from  the  charge  of  unreasonable  dis- 
crimination. Hoover  v.  Pennsylvania  R.  Co. 
156  Pa.  220,  27  Atl.  282,  22:263 

1118-1120.  If  directors  of  a  railroad  or- 
ganized to  transport  stone  from  lime  quar- 
ries to  the  kilns  act  in  good  faith  in  refus- 
ing to  extend  the  right  to  serve  other  quar- 
ries after  the  ownership  of  all  those  served 
by  the  road  becomes  vested  in  one  person, 
their  action  is  not  subject  to  review  by  the 
courts.  Ulmer  v.  Lime  Rock  R.  Co.  98  Me. 
579,  57  Atl.  1001,  66:  387 

Between  passengers. 
Discrimination  against  Colored  Persons,  see 

Civil  Rights,   10-18. 
In  Matters  Affecting  Interstate  Commerce, 

see  Commerce,  23a. 
Prohibition  against  Free  Transportation,  see 

Statutes,  475. 
For  Editorial  Notes,  see  infra,  IV.  §  4. 

1121.  An  intention  to  violate  the  law  pro- 
hibiting free  transportation  of  favored  pas- 
sengers is  not  essential  to  constitute  a  viola- 
tion of  N.  C.  Acts  1891,  chap.  320.  State  v. 
Southern  R.  Co.  122  N.  C.  1052,  30  S.  E.  133, 

41:246 

1122.  Circumstances  and  conditions  which 
surround  two  persons  are  not  dissimilar  so 
as  to  relieve  a  railroad  company  from  the 
prohibition  of  N.  C.  Acts  1891,  chap.  320,  § 
4,  against  discriminating  in  rates  between 
persons  under  substantially  similar  circum- 
stances and  conditions,  merely  because  one 
is  a  high  official,  or  a  larger  shipper,  or  a 
politician  of  power,  whose  influence  may  be 
of  service  to  the  company,  and  the  other  is 
not.  Id. 

1123.  The  giving  of  passes  in  consideration 
of  the  publication  of  railroad  time-tables 
in  a  newspaper  is  within  the  prohibition  of 
a  statute  making  it  unjust  discrimination 
for  a  common  carrier  to  receive  from  any 
person  a  greater  or  less  compensation  for 
transportation  than  is  demanded  or  received 
from  any  other  person  by  means  of  any 
special  rate,  rebate,  drawback,  or  other  de- 
vice. McNeill  V.  Durham  &  C.  R.  Co.  135 
N.  C.  682,  47  S.  E.  765,  67 :  227 

1124.  A  railroad  company  renders  itself 
liable  to  the  penalty,  provided  by  a  stat- 
ute for  making  unjust  discrimination  in 
rates  for  transportation  over  its  road,  not 
by  making  a  contract  for  free  transporta- 
tion, but  by  actually  transporting  a  person 
without  charge  or  for  an  inadequate  con- 
Bideraticm.  Id. 


1125.  The  mere  fact  that  a  train  is  run  by 
a  railroad  company  at  the  solicitation  of  a 
newspaper  publisher,  who  agrees  that  the 
daily  revenue  shall  amount  to  a  certain  simi 
in  consideration  that  he  have  the  exclusive 
right  to  use  it  for  the  transportation  of 
papers,  does  not  make  it  a  chartered  train, 
so  as  to  enable  the  carrier  to  exclude  other 
publishers  from  its  use,  where  it  is  placed 
on  the  regular  schedule  of  the  road,  and 
advertised  to  carry  persons  and  property 
generally  the  same  as  other  trains.  Mem- 
phis News  Pub.  Co.  v.  Southern  R.  Co.  110 
Tenn.  684,  75  S.  W.  941,  63:150 
Between  localities. 

For  Editorial  Notes,  see  infra,  IV.  §  5. 

1126.  Discrimination  between  localities  in 
facilities  for  transportation,  such  as  a  bet- 
ter supply  of  cars  at  a  terminus  of  the  road 
than  at  some  other  point  on  the  road,  when 
there  are  not  cars  enough  to  supply  all, 
does  not  make  the  railroad  company  liable 
to  an  action  for  a  penalty  under  Ark.  act 
March  24,  1887,  providing  that  "all  in- 
dividuals, associations,  and  corporations 
shall  have  equal  rights  to  have  persons  and 
property  transported,  .  .  .  and  no  un- 
just or  undue  discrimination  shall  be  made 
.  .  .  in  facilities  for  transportation,"  and 
that  "no  discrimination  in  .  .  .  facil- 
ities for  transportation  shall  be  made  be- 
tween transportation  companies  and  in- 
dividuals, or  .  .  .  any  preferences  in 
furnishing  cars."  The  act  does  not  apply 
to  discrimination  in  facilities  at  different 
localities.  Little  Rock  &  Ft.  S.  R.  Cfe.  v. 
Oppenheimer,  64  Ark.  271,  43  S.  W.  150, 

44:  353 

1127.  A  contract  between  a  railroad  com- 
pany and  a  manufacturer  to  maintain  the 
same  rates  on  goods  shipped  by  him  be- 
tween competitive  points  as  are  maintained 
from  other  shipping  points  where  like  fac- 
tories are  located  is  not  a  discrimination 
forbidden  by  the  interstate  commerce  act, 
nor  by  state  statutes  enacted  to  prevent  un- 
just discrimination  in  transportation  against 
any  person,  locality,  or  corporation.  Laurel 
Cotton  Mills  V.  Gulf  &  S.  L  R.  Co.  84  Miss. 
339,  37  bo.  134,  66:  453 
Long  and  short  hauls. 

Conclusiveness  of  Decision  of  Railroad  Com- 
mission, see  Courts,  89. 

Indictment  for  Violation  of  Statute  as  to, 
see  Indictment,  etc.,  48,  126. 

1128.  The  omission  from  Ky.  Stat.  §  820, 
of  the  proviso  found  in  Ky.  Const.  §  218, 
that  the  railroad  commission  may  authorize 
a  less  charge  for  longer  than  for  shorter 
distances,  on  application  by  the  carrier, 
does  not  make  the  statute  Inconsistent  with 
the  Constitution,  as  the  proviso  is  self-exe- 
cuting and  the  statute  exnressly  provides 
that  the  commission  may  exonerate  a  car- 
rier from  its  provisions  even  without  previ- 
ous application.  Louisville  &  N.  R.  Co.  v. 
Com.  104  Ky.  226,  46  S.  W.  707,  105  Ky.  179, 
47S.  W.  598,  43:541 
Between  different  occupations. 

1129.  Giving  lower  rates  for  transporta- 
tion of  coal  to  a  manufacturing  company 
than  to  a  coal  d€aler  is  not  undue  or  va- 


CARRIERS,  III.  d. 


419 


reasonable  discrimination,  in  violation  of  Pa. 
Const.  1874,  art.  17,  §  3,  or  of  the  act  of 
1883,  which  further  specifies  that  the 
equality  of  rates  required  shall  be  for  "a 
like  service  for  the  same  place,  upon  like 
conditions,  and  under  similar  circum- 
stances," where  the  manufacturing  company 
consumes  the  coal  in  creating  products 
which  furnish  a  large  amount  of  additional 
transportation  to  the  carrier, — and  es- 
pecially where  the  carrier  was  bound  to 
give  such  company  the  lower  rate  by  a  con- 
tract made  years  before  the  coal  dealer  be- 
gan business.  Hoover  v.  Pennsylvania  R. 
Co.  156  Pa.  220,  27  Atl.  282,  22:  263 

1130.  A  manufacturing  company  violates 
its  right  to  accept  lower  rates  for  the  trans- 
portation of  coal  than  are  given  to  a  coal 
dealer,  if  it  sells  coal,  even  to  its  own  em- 
ployees; and  the  carrier  on  notice  of  such 
sales  must  charge  such  company  tlje  same 
rates  that  are  charged  to  coal  dealers.  Id. 
Against  commodities. 

1131.  That  a  discrimination  by  a  carrier 
against  a  particular  commodity  is  dictated 
by  the  business  interests  of  the  carrier,  and 
really  affects  but  a  single  shipper,  does  not 
make  it  unlawful.  Central  of  Ga.  R.  Co.  v. 
Augusta  Brokerage  Co.  122  Ga.  646,  50  S. 
E.  473,  69:  119 

1132.  Discrimination  against  shippers 
only,  and  not  against  commodities,  is  forbid- 
den by  the  rule  promulgated  by  the  railroad 
commission  of  Georgia  that  carriers,  "in  the 
conduct  of  their  intrastate  business,  shall 
afford  to  all  persons  equal  facilities  in  the 
transportation  and  delivery  of  freight."     Id. 

1133.  A  discrimination  by  a  carrier 
against  cotton  seed,  by  refusing  to  issue 
through  bills  of  lading  or  to  furnish  its  cars 
to  connecting  carriers  in  order  that  ship- 
ments may  be  carried  to  ultimate  destina- 
tion without  reloading  at  terminal  points, 
is  not  unlawful,  provided  all  shippers  of 
that  commodity  are  treated  alike.  Id. 
Rebates. 

Receiver  as  Party  to  Action  for,  see  Parties, 

162. 
For  Editorial  Notes,  see  infra,  IV.  §  5. 

1134.  An  agreement  by  a  common  carrier 
to  give  one  shipper  a  favor  and  advantage 
over  others  by  a  rebate  is  illegal  at  common 
law.  Fitzgerald  v.  Grand  Trunk  R.  Co.  63 
Vt.  169,  22  Atl.  76,,  13:  70 

1135.  Existing  contracts  for  special 
freight  rates,  or  rebates  from  regular  tariff 
rates,  which  had  been  made  with  railroad 
companies  subject  to  the  Interstate  Com- 
merce Act,  became  illegal  when  the  act  took 
effect,  and  were  after  that  time  incapable  of 
enforcement.  Bnllard  v.  Northern  P.  R.  Co. 
10  Mont.  168,  25  Pac.  120,  11:  246 

1136.  Where  a  carrier  agrees  that  he  will 
carry  goods  at  a  certain  rate,  and  that  after 
the  shipment  he  will  repay  the  shipper  a  re- 
bate of  part  of  such  rate,  this  is  oijly  an 
agreement  to  carry  the  goods  at  a  compensa- 
tion ultimately  agreed  upon,  and  is  not  il- 
legal. Cleveland,  C.  C.  &  I.  R.  Co.  v.  Closser, 
126  Ind.  348,  26  N.  E.  159,  9:  754 

1137.  The  allowance  of  a  rebate  by  a  com- 
mon carrier  to  certain  of  his  customers  from 


the  tariff  rates  charged  other  customers  for 
precisely  similar  services  is  sufficient  of 
itself  to  show  that  the  rates  charged  the 
latter  were  unreasonable,  and  that  there 
was  unjust  discrimination  against  them,  il- 
legal by  the  common  law,  which  will  give 
the  latter  a  right  to  recover  the  amounts 
paid  by  them  in  excess  of  the  rates  charged 
the  former  after  deducting  the  rebates. 
Cook  V.  Chicago,  R.  I.  &  P.  R.  Co.  81  Iowa, 
551,  46  ]N.  W.  1080,  9:  764 

1138.  An  agreement  by  a  railroad  com- 
pany to  transport  coal  at  a  specified  rebate 
from  regular  tariff  rates,  in  consideration  of 
the  coal  dealer's  erecting  a  dock  on  the  com- 
pany's land  for  use  by  both  parties,  is  not, 
as  a  matter  of  law,  void  because  of  unjust 
discrimination  agSinst  other  shippers.  It  is 
a  question  of  fact.  Root  v.  Long  Island  R. 
Co.  114  N.  Y.  300,  21  K  E.  403,  4:  331 

1139.  A  milling  in  transit  agreement  be- 
tween a  manufacturer  and  carrier,  by  which 
the  former  is  to  be  credited  on  its  freight 
bills  for  manufactured  goods  shipped  the 
freight  paid  on  raw  materials  shipped  to  the 
mill,  is  not  prohibited  by  statutes  forbid- 
ding the  granting  of  any  rebate  to  shippers. 
Laurel  Cotton  Mills  v.  Gulf  &  S.  I.  R.  Co. 
84  Miss.  339,  37  So.  134,  66:  453 

1140.  A  railroad  company  chartered  to 
transact  the  general  business  of  a  common 
carrier  cannot  by  special  contract  make 
itself  a  special  carrier  as  to  a  particular 
commodity,  such  as  newspapers,  so  as  to  be 
able  to  make  discriminating  contracts  in 
favor  of  one  publishing  house  against  oth- 
ers. Memphis  News  Pub.  Co.  v.  Southern 
R.  Co.  110  Tenn.  684,  75  S.  W.  941,      63:  150 

d.  Duty    as    to    Depots;    Stopping    Trains; 
Duty  to  Run  Trains. 

Requiring  Blackboard  Announcement  in,  as 
to  Trains,  see  supra,  II.  a,  11. 

As  to  Safety  of  Approaches  and  Platforms, 
see  supra,  11.  a,  9. 

Grant  of  Exclusive  Privileges  to  Hacks,  Car- 
riages, etc.,  see  supra,  1045-1067. 

Punitive  Damages  for  Failure  to  Stop  for 
Passenger,  see  Damages,  82. 

Mandamus  to  Compel  Stopping  at  Station, 
see  Mandamus,  108. 

Question  for  Jury  as  to  Depots,  see  Trial, 
174. 

See  also  supra,  15,  25,  26. 

For  Editorial  Notes,  see  infra,  IV.  §  7. 

Maintenance  of  depot. 

Contract  to  Establish  Depot,  see  Contracts, 

322. 
Mandamus   to    Compel  Location   of   Depot, 

see  Mandamus,  104. 
Covenant  as  to,  see  Covenant,  109. 

1141.  Authority  of  railroad  commission- 
ers to  Older  a  railroad  company  to  build  and 
maintain  a  depot  or  station  house  for  which 
there  is  a  clear  and  pressing  public  neces- 
sity, at  a  certain  station,  is  conferred  by 
S.  "D.  Laws  1897,  chap.  110,  §  2,  giving  them 
"general  supervision  of  all  railroads,"  and 
providing  that  they  shall  inform  a  railroad 
corporation     of     "the     improvements     and 


420 


CARRIERS,   IV. 


changes  which  they  adjudge  to  be  proper" 
whenever  in  their  judgment  "any  addition 
to  or  change  of  its  stations  or  station 
houses  ...  is  reasonable  and  expedi- 
ent in  order  to  promote  the  security,  con- 
venience, and  accommodation  of  the  public." 
State  ex  rel.  Tompkins  v.  Chicago,  St.  P.  M. 
&  0.  R.  Co.  12  S.  D.  305.  81  N.  W.  503, 

47:  569 

1142.  The  fact  that  a  railroad  runs 
through  the  territorial  limits  of  a  town  or 
\illage  does  not  absolutely  require  it  to  es- 
tablish a  station  and  depot  therein, — es- 
pecially where  reasonable  provision  for  the 
accommodation  of  the  inhabitants  is  made 
by  a  station  near  its  limits.  Chicago  &  A. 
R.  Co.  V.  People  ex  rel.  Hunt,  152  111.  230,  38 
N.  E.  562,  -  26:  224 

1143.  The  location  of  railroad  stations  at 
joints  where  the  cost  of  maintaining  them 

will  exceed  the  profits  resulting  therefrom 
cannot  be  compelled.  Id. 

Stopping  at  terminal  station. 

1144.  A  statute  authorizing  a  railroad  to 
connect  with  rails  of  a  railroad  bridge  where 
it  terminates  on  any  line  of  continuous  rail- 
road thoroughfare  of  which  the  bridge  is  a 
part  does  not  exempt  such  road  from  a  re- 
quirement that  trains  must  stop  at  its  ter- 
minal station,  where  the  connection  has  been 
made  several  miles  from  such  station.  Illi- 
nois C.  R.  Co.  V.  People,  143  111.  434,  33  N. 
E.  173,  19:  119 
At  county  seats. 

In   Matters  Affecting   Commerce,   see  Com- 
merce, 71,  72. 

1145.  It  is  not  an  unreasonable  regulation 
for  the  legislature  to  require  all  regular  pas- 
senger trains  to  stop  at  county  seats.  State 
V.  Gladson,  57  Minn.  385,  59  N.  W.  4S7, 

24:  502 
[Aff'd  bv  the  Supreme  Court  of  the  United 
States  in  166  U.  S.  427,  41  L.  ed.  1004,  17 
Sup.  Ct.  Rep.  627.] 

1146.  The  fact  that  a  passenger  train  car- 
ries United  States  mail  does  not  relieve  it 
from  the  operation  of  a  state  statute  requir- 
ing all  passenger  trains  to  stop  at  county 
seats.  Id. 

1147.  A  state  statute  requiring  a  fast  mail 
train,  like  other  passenger  trains,  to  stop 
at  a  county  seat,  instead  of  running  through 
the  place  at  a  distance  from  the  station  on 
another  track,  does  not  constitute  an  un- 
constitutional interference  with  the  Federal 
government.  Illinois  C.  R.  Co.  v.  People,  143 
111.  434,  33  N.  E.  173,  19:  119 

1148.  A  fast  mail  train  running  daily  on 
schedule  time,  carrying  passengers,  and  ad- 
vertised as  a  passenger  train,  with  through 
coach  and  sleeping  car,  is  a  "regular  passen- 
ger train"  within  the  meaning  of  a  statute 
requirin£r  such  trains  to  stop  at  the  county 
seats,  although  the  main  object  of  the  train 
as  originally  organized  may  have  been  the 
expeditious  transportation  of  the  United 
States  mail.  Id. 

1149.  A  through  fast  train  which  crosses 
a  bridge  over  a  river  at  a  county  seat 
through  which  it  passes  is  not  exempt  from 
duty  under  the  Illinois  general  railroad  law, 
$   88,  to  stop  for  passengers  at  its  station 


at  such  county  seat,  by  reason  of  the  fact 
that  it  leaves  the  main  line  and  starts  on 
the  approach  to  the  bridge  3  miles  from  the 
city  limits,  at  which  point  it  is  met  by  a 
short  train  from  the  county  seat  to  ex- 
change passengers.  Id. 

1150.  The  use  of  short  trains  for  transfer 
purposes,  which  meet  a  through  train  at  a 
distance  from  the  station  at  a  county  seat, 
does  not  constitute  a  compliance  with  a 
statute  which  requires  all  passenger  trains 
to  stop  at  such  station  to  receive  and  let  off 
passengers.  Id. 
Duty  to  run  trains. 

Considering  Preferred  Stock  as  a  Debt  in 
Determining  Duty,  see  Corporations, 
367. 

Covenant  to  Run  Trains,  see  Covenant,  96. 

Duty  to  Operate  Ferry,  see  Ferry,  22-26. 

Mandamus  to  Compel,  see  Mandamus,  105- 
107. 

1151.  The  sufficiency  of  the  earnings  of  a 
railroad  to  justify  the  expense  of  running  a 
separate  passenger  train  over  a  certain 
branch  line  constituting  a  part  of  an  entire 
system  is  not  to  be  determined  by  consider- 
ing the  profits  of  that  branch  alone,  but  of 
the  whole  business  of  the  various  parts  ope- 
rated as  one  line.  People  ex  rel.  Cantrell  v. 
St.  Louis,  A.  &  T.  H.  R.  Co.  176  111.  512,  45 
N.  E.  824,  52  N.  E.  292,  35:  656 

1152.  The  duty  of  furnishing  a  separate 
passenger  train  for  passengers  only,  and  not 
for  freight  and  passengers  together,  is  im- 
plied in  the  duty  of  a  railroad  company  to 
furnish  necessary  rolling  stock  and  equip- 
ment for  the  suitable  and  proper  operation 
of  a  railroad.  Id. 

1153.  A  railroad  company  owning  two 
lines  between  the  same  points  will  not  be 
compelled  to  operate  local  trains  on  both,  if 
this  would  entail  great  loss  and  expense 
without  any  return,  and  the  convenience  of 
the  greater  number  of  people  will  be  secured 
by  operating  one  of  them  exclusively  for 
through  trams.  Chicago  &  A.  R.  Co.  v. 
People  ex  rel.  Hunt,  152  HI.  230,  38  N.  E. 
562.  26:  224 


IV.  Editorial  Notes, 
a.  In  General. 

§  I.  Generally. 

Conflict  of  laws  as  to  contracts  of.  63: 
513. 

Authority  of  agent  or  representative  of  rail- 
road company  to  employ 
medical  services  for  em- 
ployee or  other  third  per- 
son.    20:  695. 

Locality  of  crime  committed  through  the 
agency  of  carriers.  19: 
775. 

Liability  of  receiver  as  common  carrier  for 
torts  or  negligence  of 
servants.     63:231. 

Taxation  on  passenger  trafHc.     57:  59. 

State  taxation  of  passenger  travel  as  af- 
fected by  commerce  clause. 
60:  666. 


CARRIERS.  IV.  (Ed.  Notes.) 


421 


Liabilitv  of  carrier  to  garnishment.  28: 
GOO. 

Mandatory    injunctions   to.     20:  166. 

Sufficiency  of  general  allegations  of  negli- 
gence of.     59 :  239. 

Liability  to  servants  of  other  persons.  46: 
56. 

Claim  against  state  for  services  by.  42: 
55. 

§  2.  Who  are  common  carriers. 

Generally.     10:  415.* 

Ferryman  as  a  common  carrier.     68:  153. 

Is  an  interurban  railroad  company  con- 
trolled by  general  railroad 
law  in  regard  to  the  oper- 
ation of  railroads  as  car- 
riers of  passengers?  67: 
637. 

Railroad  companies  as  private  carriers  in 
drawing  special  Jtrains  or 
special  cars.     30:161. 

b.  GoTernmental  control;    rates;   discrimin- 
ation. 

§  3.  Generally. 

Statutes  against  ticket  brokerage  or  "scalp- 
ing."    24:  152. 

Constitutional  and  statutory  provisions  af- 
fecting combinations  be- 
tween railroads  to  prevent 
competition.     1 :  849.* 

Compulsory  service  of  carriers.     15:  321. 

§  4.  Discrimination. 

As  to  Rates,  see  infra,  IV.  §  5. 

Right  of  company  to  discriminate  as  to  pas- 
sengers.    5:  818;*  18:  105. 

Against  colored  persons.     18:  639. 

Right  of  carrier  at  common  law  to  discrimi- 
nate between  shippers. 
18:  105. 

Duty  to  give  equal  facilities  to  express  com- 
panies.    18:  393. 

Discrimination  as  to  hackmen  and  other 
solicitors  of  patronage  at 
depots,  wharves,  etc.  13: 
848. 

§  5.  Rates. 

Rates  as  Affected  by  Interstate  Commerce 
Act,  see  Commerce,  V. 

State  regulation  of  fares  and  freights.  3: 
661;*  9:  754;*    11:  452.* 

Regulation  of,  by  railroad  commission.  3: 
661:*  9:  75.* 

Legislative  power  to  regulate.     33:  179. 

When  rates  fixed  by  penal  statute  are  suffi- 
ciently definite  and  cer- 
tain.    33:209. 

Discrimination  in  rates,  when  justified.  4: 
331.* 

What  are  unlawful  discriminations  as  to 
rates.     3:  662.* 

Remedy  against  discriminating  charges.  3: 
662.* 

Necessity  that  rates  fixed  be  reasonable.  9: 
759;*  12:  436.* 

Right  of  carrier  to  make  special  rates.  9: 
7.58.* 

Different  rates  for  delivery  to  different  ware- 
houses in  same  city.  9: 
758.* 


Discrimination   between   local   and  through 

transportation.     9:  758.* 
Recovery   back   of   excess   freight   paid.     9: 

759.* 
Agreement  for  rebates.     9:  758.* 
Under  interstate  commerce  act.     2:  444.* 
Classification.     2:  445.* 
Preferences   as   to   localities.     2:  445.* 
Through   traffic  arrangements.     12:  437.* 
Municipal   regulation    of   fares   charged  by 
street     railways.     19:  570. 

c.  Right;  duties  and  liabilities. 
I.  As  to  passengers  and  other  persons. 

§  6.  Generally. 

Restriction  of  liability.     12:  340.* 

Care  and  diligence  required.  2:  83;*  6:  241;* 
11:  720;*  13:95.* 

Not  liable  as  insurers.     2:  252.* 

Liability  of  carrier  for  acts  of  independent 
contractor.     66:  150. 

Liability  of  railroad  company  for  accidents 
caused  by  wrongful  act  of 
stranger.     22:  306. 

Distinction  as  to  liability  between  carriers 
of  goods  and  carriers  of 
passengers.     2:  252.* 

Usage  or  custom  as  affecting  carrier's  lia- 
bility.    2:  76.* 

Liability  for  injuries  arising  from  inevi- 
table accident.    2:  252.* 

Duty  to  keep  lookout  for  passenger  on  track. 
25 :  290. 

Right  of  street  railway  company  to  carry 
passengers  on  platforms. 
12:  129.* 

Liability  for  personal  injury  by  collision  be-* 
tween  carriers.     1:  681.* 

§  7.  Depots  and  grounds. 

Use  of,  by  hackmen,  etc.     13:  848. 

As  to  admission  of  passenger  to  train  house. 
16:  449. 

Duty  to  light  stations.     6:  193.* 

Duty  as  to  lights  and  guards.  3:  75;*  7: 
688.* 

Regulations  as  to  use  of  depot  and  groiinds. 
8:  754.* 

Duty  owed  to  strangers  and  licensees.  II: 
720.* 

Taking  lana  for.     9:  295.* 

Formation  of  union  depot.     13:  415.* 

§  8.  Approaches  and  platforms. 

Duty  as  to  platforms  and  approaches,  gen- 
erally. 6:  193;*  7:  111,* 
687.* 

Duty  of  carrier  with  respect  to  means  of  ap- 
proach and  departure.  7: 
688.- 

Liability  of  railroad  for  injuries  caused  by 
defective  platforms.  3 : 
76;*  11:  720.* 

Duty  to  maintain  safe  approaches  beyond 
its  own  premises.     16:  593. 

To  whom  railroads  owe  the  duty  of  keep- 
ing station  platform  safe. 
20:  527. 

Measure  of  care  which  a  carrier  must  exer- 
cise to  keep  its  platforms 
and  approaches  safe.  20: 
520. 


422 


CARRIERS.  IV.  (Ed.  Notes.) 


§  9.  Condition  of  cars. 

Liability  for  defects  in  cars  and  appliances. 

2:  86.* 
Responsibility    for    defects    attributable   to 
the  fault  of  the  manufac- 
turer.   2 :  86.* 
Duty  of  railroad  carrier  in  respect  to  fur- 
nishing   proper    cars    for 
passengers.     31:  313. 
Duty  to  adopt  improvements.     31:  315. 
Rule  as  affected  by  character  of  train. 
31:  315. 
Duty  of  railroad   companies  to   heat  cars. 
42:  110. 
In    general.     42:  110. 
State  legislation.     42:  110. 
§  10.  Duty  of  carrier  permitting  cars  to  be- 
come overcrowded. 
Injuries  received  on  crowded  railroad  trains. 
24:  710. 
Riding  on  the  platform.     24:  710. 
Riding  in  other  dangerous  places.     24: 

710. 
Getting  on  or  off  the  cars.     24:  711. 
Injuries    caused    by    fellow    passengers    on 

crowded  trains.     24:  711. 
Failure  to  provide  train  for  crowd.     24:  711. 
Street  railroads.     24:  712. 
Elevated  railroads.     24:  713. 
§  II.  Default  or  delay  in  running  train. 
Liability  to  passenger.     32:  543. 

Duty    of   railroads    as   to    punctuality. 

32:  543. 
Effect  of  limitation  of  liability  in  time- 
tables.    32:544. 
Passenger's  rights.     32:  545. 
What  damages  are  recoverable.    32 :  545. 
§  12.  Who   are   passengers;    when   relation 

begins. 
Generally.    2:  66;*  7:  688.* 
Necessity  of  payment  of  fare  to  constitute 
one  a  passenger.     11 :  720.* 
Railroad   employees    or   officers   as   passen- 
gers.    31:321. 
Riding  in  course  of,  or  as  part  of,  em- 
ployment.    31:321. 
Rule  in  case  of  one  being  transported 
to  or  from  work.     31:  321. 
Person  riding  for  purposes  of  his  own. 

31:  324. 

Riding  on  pass.     31:  321;  50:  462. 

Tramps  as  passengers.     2:  166.* 

Express  messengers  as  passengers.     22:  796. 

Person  riding  free  entitled  to  protection  as 

passenger.     2:  167.* 
Freight  owner  as  free  passenger.     2:  166.* 
Mail  agents  and  clerks  as  passengers.     2: 

166.* 
When  a  person  who  haa  started  for  a  train 
becomes  a  passenger.     24: 
521. 
When  passenger  becomes  a  trespasser.     3: 

733.* 
§  13.  Liability  for  injuries  to  postal  clerk. 
Generally.     19:339. 

Relief  from  liability  by  statute.     19:  340. 
§  14.  Passenger  on  freight  train. 
^Vhat  risk  is  assumed  by  a  passenger  on  a 
freight  train.     19:  310. 
As  to  jerking  the  cars  in  stopping  or 
starting  a  train.     19:  310. 
As  to  risk  in  stock  car.     19:  311. 


As  to  what  degree  of  care  is  required  in 
other  cases.     19:  311. 
Regulation  as  to  passage  on  freight  trains. 

5:  817.* 
Freight  owner  as  free  passenger.     2:  166.* 
§  15.  Liability    to    passengers    on    sleeping 

cars. 
Liability  of  sleeping  car  company.     21:  289. 
For  money  stolen  from  passenger.     11: 

762. 
For  baggage.     21:  289. 

As  innkeepers.     21:  289. 
As  common  carriers.     21 :  291. 
For  negligence.      21:  292. 
Extent  of  liability.     21:  295. 
Effect  of  notice.     21 :  295. 
CJontinuous  passage.    21 :  295. 
Ejection  and  refusal  of  accommodation. 

21:  295. 
Personal  injuries.     21:  296. 
Liability  of  railroad  company.     21 :  297. 
§  16.  Protection    of    passenger;    mistreat- 
ment; assaults. 
Liability  for  torts  to  passengers.     12:  113,* 

337.* 
Passenger's  right  to  proper  treatment  from 
carrier's      employees.      1 : 
682;*   3:  133.* 
Duty  to  protect  from  violence  and  insult. 

3:  634,*  733.* 
Duty  as  to  passenger  taken  ill  during  jour- 
ney.    31:261. 
Liability  of  carrier  for  assaults  by  employ- 
ees upon  passengers.     14: 
738. 
During  transportation.     14:  738. 
Generally.     14:  738. 
Effect  of  passenger's   misbehavior. 

14:  738. 
Insults,  threats,  obscene  language. 
14:  739. 
At  station;  before  and  after  transporta- 
tion.    14:  739. 
By  servants  of  sleeping  and  palace  car 

company.     14:  740. 
When  assault  results  in  death.     14:  740. 
Remedy  in  rem.     14:  740. 
Liability    for    assault    upon    passenger    by 
strikers,  mob,  or  third  per- 
sons.    55:  713. 
Assault  by  fellow  passenger.     16:  627. 
False  arrest  of  passenger.     14:  791. 
Measure  of  damages  for  misconduct  of  em- 
ployee  toward    passenger. 
3:735.* 
§17.  Rules  and  regulations  of  carrier. 
Reasonable  rules  for  carriage  of  passengers. 

5:817;*  7:  111.* 
Regulations  respecting  tickets.    2:  185.* 
Regulations  as  to  passage  on  freight  trains. 

5:817.* 
§  18.  Tickets;  fare. 
As  to  Privilege  of  Stop-over,  see  infra,  IV.  { 

22. 
Duty  of  passenger  to  pay  fare  wrongfully 
demanded  in  order  to 
avoid  expulsion  and  lessen 
damages.  43:  706. 
Where  the  failure  to  have  a  proper 
ticket  is  the  fault  of  the 
ticket  agent.     43:  707. 


CAKRIEHS,  IV.  (Ed.  Notes.) 


428 


Where  another   conductor   is   in   fault. 

43:710. 
Where  the  conductor  demanding  fare  is 

in  fault.     43:  712. 
Where  the   passenger   loses   his   ticket. 
43:  715. 

Right  to  charge  additional  fare  for  neglect 
to  procure  ticket.    5:  817.* 

Duty  to  keep  tscket  office  open  a  reasonable 
time.     5:  818.* 

Validity  of  extra  charge  for  passenger  fare 
when  paid  upon  train. 
20:  483. 

How  far  purchaser  bound  by  terms  and  con- 
ditions on  ticket.    5:  819.* 

Ticket  as  a  mere  receipt  for  passage.  5: 
818.* 

Notice  to  passenger  of  conditions  on  ticket. 
23 :  746. 
Steamship  tickets.     23:  746. 
Railroad  tickets.     23:  746.  • 

Burden  of  proof  as  to  knowledge  by  pas- 
senger of  memorandum  on 
ticket  limiting  company's 
liability.     12:340.* 

Stipulation  in  ticket.     12:  340.* 

Assignability  of  railroad  ticket.     18:  55. 

How  far  ticket  may  be  used  for  passage 
after  expiration  of  time 
limited.     16:471. 

Round-trip  tickets.     2:  185.* 

Through   tickets.     2:  186.* 

Lost   ticket.     5:  819.* 

Duty  of  passengers  to  exhibit  and  surrender 
tickets  when  requested. 
5:818.* 

Regulations  respecting  tickets.     2:  185.* 

What  is  a  reasonable  sum  out  of  which 
carrier  may  be  required 
to  take  passenger's  fare 
and  return  change.  35: 
489. 

§  19.  Ejection. 

Ejection  of  trespasser  from  train.  11: 
432;*  12:  338.* 

From  sleeping  car.     21 :  295. 

Right  of  carrier  to  remove  disorderly  pas- 
senger.    1:  513.* 

What  constitutes  ejection.     3:  733,*  734.* 

For  refusal  to  pay  fare.  1:513;*  5:819, 
820;*  12:338,*  823.* 

Place  where  one  refusing  to  pay  fare  may 
be  ejected.    26:  129. 
Expulsion  in  absence  of  statutory  pro- 
visions.    26:  129. 
Expulsion   in  states    having   statutory 
provisions.     26:  130. 
At  station.     26:  130. 
Between  stations.     26:  131. 
Amount  of  damages.     26:  132. 
"Stopping  place,"  or  "near  dwell- 
ing,"  defined.     26:  132. 
"Passengers"  defined.     26:  132. 
Statutory    provisions.     26:  133. 

Ejection  of  custodian  for  nonpayment  of 
child's  fare.     38:  140. 

Right  of  passenger  to  pay  fare  after  train 
begins  to  stop  for  pur- 
pose of  ejecting  him.  16: 
53. 


Payment  of  back  fare  for  distance  already 
ridden  as  condition  of  be- 
ing carried  further.    16:55. 

Exposure  of  drunken  passenger  to  danger 
by  ejection  from  car.  19: 
327. 

Duty  of  conductor  in  expelling  passenger. 
3:  733,*  734.* 

Use  of  excessive  or  unnecessary  force.  12: 
338.* 

Measure  of  damages  for.     1:  667.* 

Duty  of  passenger  to  pay  fare  wrongfully 
demanded  in  order  to 
avoid.     43:  706. 

§  20.  Passes. 

Employee  riding  on,  as  passenger.  31:  321; 
50:  462. 

Rights  of  person  riding  on  pass  or  contract 

for  free  passage.     22:  794. 

Stock  drover.    22:  794. 

Drover's  pass;  assuming  risk.     22:  794. 

Express  agents,  newsboys,  and  the  like. 

22:  796. 
Complimentary  or  gratuitous  pass.     22: 

796. 
Right  of  a  party  to  the  use  of  a  pass. 
22:' 797. 

When  person  riding  free  entitled  to  protec- 
tion as  passenger.  2: 
167.* 

Exemption  from  liability  for  negligence  by 
stipulation  in  pass.  1: 
501.* 

§  21.  Right  of  passenger  to  seat. 

Generally.     22:  259. 

Rights  of  passenger  when  seat  is  refused. 
22:  260. 

§  22.  Passenger's  right  to  stop  over. 

Generally.     28:  773. 

Rule  in  case  of  coupon  tickets.    28:  774. 

Effect  of  particular  stipulations.    28:  775. 

Agreements  or  representations  as  to  right  to 
stop  over.     28:  775. 

Statutory  permission.     28:  775. 

Limited  tickets.     28:  775. 

Special  rates  or  contracts.    28:  776. 

Rules  and  custom  of  carrier.     28:  776. 

Effect  of  delay  of  train.     28:  776. 

Through  train  must  be  taken.     28:  776. 

No  stoD-over  without  ticket.     28:  776. 

Time  within  which  stop-over  must  be  used. 
28:  776. 

Right  to  take  up  ticket.     28:  776. 

§  23.  Announcement  of  stations. 

Duty  to  make.     15 :  347. 

Effect  of.     15:  348. 

As  to  change  of  cars.     15:  349. 

§  24.  Canying    beyond    station. 

Liability  of  carrier  for.     7:  111.* 

Duty  of  carrier  to  use  care  and  caution  in 
stopping  trains  at  sta- 
tions.    3:  684.* 

§   25.   Liability  to   passenger    temporarily 
leaving  vehicle. 

At  regular  stations.     15:  399. 

At  sidings  and  coaling  stations.     15:  399. 

Leaving  to  avoid  anticipated  danger.  15: 
400. 

Leaving  to  rectify  mistake  in  taking  train, 
etc.     15:  400. 


424 


CARRIERS,  IV.  (Ed.  Notes.) 


§  26.  Starting  and  stopping. 
Duty  in  stopping  and  starting  trains.     13: 
95.* 
Length    of    stoppage.     13:  95.* 
Signal;  starting  of  train.     13:  95.* 
Starting    car    before    passenger    is    seated. 
42:  293. 
Ordinary  railway  cars.     42 :  293. 
Elevated  railway  cars.     42:  294. 
Street  cars.     42 :  294. 
Stage   coaches.     42 :  296. 
Negligence  in  starting  train  while  passenger 

alighting.     1 :  542. 
Duty  of  carrier  to  give  opportunity  to  pas- 
senger to  alight.     7:  689.* 
§  27.  Getting  on  or  off. 
As  to  Contributory  Negligence  of  Passen- 
ger, see  also  infra,  IV.  §  29. 
Passing    at    high    speed,    train    discharging 
passengers,  as  gross  negli- 
gence.    3 :  684.* 
Duty  to  assist  passenger  in  landing  safely. 

11:367.* 
Duty   to    person   entering   vehicle   to   assist 

passenger.     15:  434. 
Injuries    in    getting    on    and    oflf    railroad 
trains.     21 :  354. 
Injuries    received   by   persons   assisting 
passengers    on    board    the 
cars.     21:354. 
Rights  of  persons  assisting  passengers 

on  board.     21:  354. 
Parties  compelled  to  alight.     21:  364. 
Boarding  a  moving  train.     21 :  356. 
Alighting  from  moving  train.     21:  358; 
24:  711. 
Children  jumping  on  and  off  trains 

in  motion.     21:  355. 
Alighting  after  being  warned.     21: 

358. 
Getting  oflf  before  the  train  stops. 

21:359. 
Getting   oflf   where   train   makes   a 
preliminary  stop.    21:  359. 
Where  the  train  does  not  stop.    21 : 

360. 
Where  party  is  directed  by  the  con- 
ductor    or     employee     to 
alight.    21 :  361. 
Alighting  from  a  train  in  motion, 
where    it    had    stopped    a 
sufficient  time  at  the  sta- 
tion.    21 :  363. 
Where  time  is  not  given  the  pas- 
senger to  alight.     21:  363. 
§  28.  Baggage  and  property  of  passenger. 
Ab  to  Baggage  of  Passenger  on  Sleeping  Car, 

see  supra,  IV.  §  15. 
Liability  for  loss  of  baggage.     3:342;*  11: 
759.* 
What  is  baggage.     3:  346;*   11:  759.* 
Articles   of   baggage   worn   or   car- 
ried by  hand.     11:  760.* 
Bicycle  as.     47:  306. 
Responsibility   for  loss  of   merchandise 
carried    as     baggage.     11: 
761.* 
Regulation    for    protection    of    carrier. 
11:761.* 
Notice   to  passengers  of  nonliabil- 
itv.     11:762.* 


Liability  for  money  stolen  bv  employee. 
11:762.* 

Eflfect  of  contributory  negligence  to  de- 
feat   action.     11:  762.* 
Liability  fox  baggage  after  reaching  desti- 
nation  of   passenger.     36: 
781. 

General  statements  as  to  liability.  36: 
782. 

When  carrier's  liability  terminates. 
36:  782. 

Baggage  retained  for  carrier's  benefit. 
36:  784. 

Eflfect  of  agreement  to  care  for  bag- 
gage.    36:  785. 

Duty  when  baggage  not  called  for.  36: 
785. 

Liability   as    warehouseman.  "  36:  786. 

How  liability  limited.     36:  787. 

Liability  at  junctions.     36:  787. 

Baggage  in  custody  of  carrier's  serv- 
ant.    36:  788. 

Sickness  of  passenger.     36:  788. 

Negligence  of  passenger.     36:  788. 

Burden  of  proof.     36:  788. 
Liability  for  baggage  not  accompanied  by  a 

passenger.     55:  650. 

Implied    exceptions   in    statute    as    to    free 

transportation  of.    25:569. 

Liability  of  passenger  carrier  transporting 

merchandise    intrusted    to 

it  by  passenger.     14:  515. 

§  29.  Contributory  negligence. 

In  Getting  on  or  oflf  Railroad  Cars,  see  also 

supra,  IV.  §  27. 
Intoxication  as  aflfecting  negligence  of  pas- 
sengers.    40:  134. 
Negligence  in  getting  on  or  off  a  moving 
street  car.    38:  786. 

Carrier  must  have  been  negligent  in 
order  to  raise  question  of 
contributory  negligence. 
38:  786. 

Passenger  takes  the  risk.     38:  786. 

How  far  negligence  a  question  of  law. 
38:  786. 

How  far  act  is  due  care,  as  matter  of 
law.     38:  787. 

Question   for  jury.     38:  788. 

Negligence  dependent  on  circumstances. 
38:  788. 

Particular  classes  of  cases.     38:  788. 

To  avoid  danger.     38:  790. 

Negligence  after  knowing  peril.    38:  790. 

Summary.    38:  790. 
In   riding  on   platform   or   footboard.     11: 

130;*  12:  129.* 
Passenger's  negligent  exposure  of  person  at 
car  window.     16:  91. 

Question  of  law  or  fact.     16:  92. 
•Passengers  on  street  cars.     16:  93. 
Contributory  negligence  in  passing  between 

or  under  cars.     13:6.34.* 
Negligence   of   passenger   in    passing    from 
one   car   to    another.     34: 
720. 

The  general  rule.     34:  720. 

Passenger  assumes  incidental  risks.  34: 
720. 

Oh(>(r''ii"('  of  instructions.     34:  721. 

Vestibuled  trains.     34:  721. 

Negligence  in  fact.     34:  721. 


COURIERS,  IV.  (Ed.  Notes.) 


435 


Passenger's  riding  in  baggage  or  express  car 
as       contributory       negli- 
gence.    16:  631. 
Violation  of  rules.     16:  631. 
Where  riding  in  such  car  did  not  con- 
tribute   to    accident.     16: 
631. 
Power  of  conductor  to  waive  rule.     16: 
631. 

Alighting  from  train  while  in  motion  as 
contributory  negligence.  8: 
674;*   11:  395,*  721.* 

§  30.  Presumption  and  burden  of  proof. 

Generally.     13:33.* 

On  question  of  carrier's  negligence  when 
passenger  in  the  exercise 
of  due  care  is  injured  by 
collision  with  vehicle  un- 
der control  of  third  per- 
son.    68 :  799. 

Presumption  of  negligence  from,  occurrence 
of  accident  to  passenger. 
15:  35. 

Burden  of  proof  as  to  liability  of  common 
carrier  for  baggage.  36: 
781. 

Burden  of  proof  as  to  passenger's  knowledge 
of  memorandum  on  ticket 
limiting  company's  liabil- 
ity.    12:  340.* 

Burden  of  proof  as  to  injury  to  live  stock 
during  transportation.  17: 
339. 

2.  As  to  freight. 

§  31.  Generally. 

See  also  Shipping,  III.  §§  5-7. 

Conflict  of  laws  as  to  carriers'  contracts. 
63:513. 

Distinction  as  to  liability  between  carriers 
of  goods  and  passengers. 
2:  252.* 

When  liability  of  carrier,  as  such,  com- 
mences.    13:  33.* 

Rights,  duties,  and  obligations  in  general. 
2:  102;*  3:  342,*  424;*  5: 
587;*  6:  849;*   10:415.* 

Carriers  as  bailees.    6:  619,*  853.* 

Carriers  as  insurers.     1:  702;*  3:  424.* 

Responsibilities  of  carrier  by  water.    2:  173.* 

Impossibilities  of  performance  as  affecting 
liability  under  carrier's 
contract.     14:  216. 

Whether  shipments  between  points  in  same 
state  lose  their  character 
of  domestic  commerce  by 
passing  out  of  the  state 
during  transportation.  17: 
443. 

Shipment  within  a  state,  as  part  of  inter- 
state or  foreign  transpor- 
tation.    17:643. 

Inquiry  and  representations  as  to  value  of 
goods.     13:  33.* 

Transportation  contract  made  by  agent.  9: 
833.* 

Liability  of  consignee  to  servants  of  car- 
rier.    46:  97. 

Act  of  God  as  excuse;  exception  in  con- 
tract; inevitable  accident. 
U:  615.* 


Who  is  real  party  in  interest  by  whom  ac- 
tion    against     carrier     of 
goods    must    be    brought. 
64:  617. 
Estoppel  to  plead  defense  of  limitation  to 
action    on    carrier's    con- 
tract.    63:206. 
Passing  of  title  to  property  by  delivery  to 
carrier  for  transportation. 
22:  415. 
State  taxation  of  freight  carried  by  inter- 
state  carriers.     60:  657. 
§  32.  Express  companies. 
Duty    of    railroad-  company    to    give    equal 
facilities   to  express   com- 
panies.    18:  393. 
Duty  as  to  delivery  and  collection  of  pack- 
ages by  express  company. 
33:66. 
Express  messengers  as  passengers.     22:  796. 
§  33.  Liability    of    baggage    transfer    com- 
panies. 
As  common  carriers.     34:  137. 
When  liable.     34:  138. 
Limitation  of  liability.     34:  128. 
When  not   liable.     34:  139. 
The  effect  of  a  custom.     34:  140. 
§  34.  Duty  to  furnish  cars. 
Duty  of  a  railroad  company  to  furnish  cars 
to  shippers.     43 :  225. 
General  or  statutory  duty.     43:  225. 
Contract   duty.     43:  227. 
Interstate  Commerce  Act.     43:  230. 
As  affected  by  strike.     35:  623. 
§  35.  Transporting  intoxicating  liquor. 
Liability  of  carrier  for.     46:  417. 
In  general.     46 :  417. 
What   is    a   transportation   or   convey- 
ance.    46:  419. 
The  question  of  knowledge.     46:  419. 
Evidence    to    support    conviction.     46: 

420. 
Sufficiency  of  indictment  or  complaint. 
46:  422. 
§  36.  Bill  of  lading. 
To  whom  may  delivery  be  made  under  bill 

of  lading.     38 :  358. 
Character  and  effect  of  bill  of  lading.     10: 

416.» 
A  receipt  and  contract.     4:  244;*  10:  416.* 
Right  to  contradict.     9:263.* 
Restriction  in.     6:  849;*   10:  415.* 
Rule  as  to  valuation  fixed  in  bill  of  lading. 

12:  799.* 
§  37.  Limiting  liability. 
Conflict  of  laws  as  to.     63:  525. 
Right  of  carrier  to  restrict  common-law  li- 
ability, generally.   1:500;* 
3:343,*  425;*   6:  849;*   7: 
214;*  10:  419;*  13:  518.* 
Of  baggage  transfer  company.     34:  138. 
Restriction    of    liabilitv    by    valuation.     6: 

851.*' 
Contracts   for   reasonable   exemptions.     13: 

362.* 
Power  to  limit  amoimt  of  liability  in  cases 

of  negligence.     14:  433. 
Right  to  limit  common-law  liability  by  coi>- 
tract    in    the    absence    of 
negligence.     18:  527. 
Exemption  from  liability  by  fire  or  flood. 
10:  417.* 


426 


CARRIERS,  IV.  (Ed.  Notes.) 


Validity    of    contracts    limiting    time    for 

bringing  suit.     3:  344.* 
Limitation   of    common   carrier's   duty   and 
liability  in  case  of  danger- 
ous articles.     36:  648. 
Duty  to  give  notice  of  dangerous  char- 
acter of  article.     36:  648. 
Statutory  pro\nsions.     36:  649. 
Right  to  refuse  shipment.     36:  649. 
Carrier  may  take  dangerous  substances. 
36:  649. 
What  constitutes  damage  by  the  elements 

in  contracts  of.     53 :  676. 
§  38.  Connecting  carriers;    liability  beyond 

own  line. 
Conflict  of  laws  as  to.     63 :  530. 
Authority  of  freight  agent  to  contract  for 
transportation  beyond  line. 
9:833.* 
Rights  and  liabilities  of  connecttng  carrier. 
4:  376,*  545;*  6:  849;*   7: 
214;*  9:  833;*  10:  415.* 
Joint  liability.     4:  545;*  9:  834.* 
Liability    beyond    own    line.     1:  705;*     4: 
545;*      6:  853;*      9:  835;* 
13:34.* 
Liability    for    loss    on    connecting    line.     1: 

705.* 
§  39.  Live  stock. 
Duties  and  liabilities,  generally.     2:  75;*  4: 

545.* 
Contract  limiting  liability.     9:  452.* 
Duties  of  carriers  of  live  stock  as  to  pens 
or  vards  at  stations.     44: 
289' 
The  general  rule.     44:  289. 
Application  generally.     44:  290. 
Commencement  and  termination  of  risk. 

44:  292. 
Effect  of  contributory  negligence.     44: 

294. 
Relief  from  liability  by  contract.     44: 

295. 
Compensation.     44:  295. 
Discrimination.     44:  296. 
Matters  of  procedure.     44:  296. 
Statutory  duties  of  carriers   of  live  stock 
with  reference  to  care  of 
stock    during    transporta- 
tion.    44:  449. 
The  United  States  statute.     44:449. 
The  South  Carolina  statute.     44:  452. 
The  Texas  statute.    44:  453. 
Miscellaneous  statutory  provisions.    44: 
456. 
Duty  as  to  shipment  of  stock.     9:  449.* 
Duty  to  feed  and  water.     9:  449.* 
Forwarding  by  connecting  line.    9:  450.* 
Damages   for   failure   to   transport.     9: 

450.* 
Liability  for  delay  in  shipment  and  de- 
livery.    9:  451.* 
Liability  for  miscarriage  and  wrongful 

delivery.     9:  451.* 
Damages   for  negligent   loss   or   injury. 

9:  451.* 
Notice  of  claim  for  damages.    9:  452.* 
Contract    limiting    liability.     9:  452.* 
Extraordinatv    unloading    of    live    stock    in 

transitu.     14:  550. 
Dutv   as  to  loading  live  stock.     1.3:  262.* 


Duty  to  furnish  cars  for  transportation  of 
live  stock.     9:  449.* 

Burden  of  proof  of  cause  of  injury  to  live 
stock  during  transporta- 
tion.    17:  339. 

§  40.  Conversion;  seizure  under  process. 

Conversion  by  carrier.     2:  80.* 

Payment  or  tender  of  freight  charges  as 
a  condition  precedent  to 
an  action  of  trover  against 
carrier.     21:  117. 

Effect  of  seizure  of  goods  by  judicial  pro- 
cess to  relieve  carrier  from 
liability.    9:  263;*  13:  35.* 

§41.  When   liability    of    carrier,    as    such, 
ceases. 

Conflict  of  laws  as  to.    63:  531. 

Generally.     10:  417.* 

The  two  rules.     17:  691. 

The  Massachusetts  rule.     17:  691. 
The  New  Hampshire  rule.     17:  693. 

Reasonable  time.     17 :  696. 

§  42.  Effect  of  strikes  upon  carrier's  liabil- 
ity. 

Duty  to  accept  freight  or  furnish  cars.  35: 
623. 

Destruction  of  property.     35:  623. 

Delay   in  transportation.     35:  624. 
In  general.     36:  624. 
Mere    refusal    of    employees    to    work. 

36:625. 
Effect  of  violence  and  intimidation.    35 : 

627. 
Strike  on  connecting  line.     35:  629. 
Sale  of  perishable  property.     35:  630. 

Delay  in  imloading  vessel.     35:  630. 

§  43.  Unloading;  delay;  demurrage. 

What  will  excuse  delay  in  transportation. 
9:  836.* 

Delay  in  unloading  caused  by  strike.  35: 
630. 

Demurrage;  charge  for  detention  of  its  cars 
by  consignees.     22:  530. 

Liability  for  delay  caused  by  mobs  or  un- 
lawful conduct  of  employ- 
ees.    4:  545.* 

Maritime  lien  for  demurrage.     70:  374. 

§  44.  Delivery. 

Effect  of  Delivery  of  Goods  to  Carrier  as 
Delivery  to  Purchaser, 
see  Sale,  LV.  §  3. 

Who  may  maintain  action  against  carrier 
for  nondelivery  of  goods 
delivered  to  carrier  by 
vendor  for  transportation 
to  purchaser.     22:  427. 

Custom  or  usage  at  port  of  delivery  as  part 
of  contract.     1:651.* 

Failure  to  deliver  to  consignee  as  prima 
facie  evidence  of  negli- 
gence and  liability.  13: 
33.* 

Liability  for  wrong  delivery  of  goods.  6: 
853.* 

Effect  of  misdelivery.     6:849.* 

Contract  to  deliver  at  a  designated  point. 
10:  416.* 

To  whom  may  delivery  be  made  under  bill 
of  lading.     38 :  358. 
Goods  deliverable  to  order.     38:  358. 
Must  deliver  to  holder  of  bill  of  lading. 
38:  359. 


CARRYING  ON  BUSINESS— CARS. 


427 


Necessity  of  production  of  bill  of  lad- 
ing.    38:359. 
Shipper's  rights.     38:361. 
Duplicate  bills.     38:  362. 
Shipping  receipts.     38:  362. 
Indorsement  required.     38:  363. 
Wrongful  holder.     38:  363. 
Effect  of  order  to  notify  certain  person. 

•     38:  363. 
Rights  of  true  owner.     38 :  364. 
Delivery  on  carrier's  copy.     38:  364. 
Incidents  of  delivery.     38:  364. 
Exceptions  in  bills  of  lading.     38:  365. 
•      Instructions  for  collections.     38:  365. 
Conflicting  claims.     38:  365. 
Acts  of  third  persons.     38:  365.  ' 
Consignment  to  consignor's  agent.     38: 
366. 
Delivery  to  impostor  by  carrier,     37:  177. 
General  rule  as  to  delivery.    37:  177. 
Imposition  on  carrier.     37 :  179. 
Imposition  on  consignor.     3Y:  180. 
Liability  of,  for  misdelivery  of  goods.     1: 

650.* 
§  45.  Insurance. 
Subrogation  of  insurer  to  rights  of  insured 

against  carrier.     3:  426.* 
Subrogation  of  carrier  to  rights  of  insured. 

3:  426.* 
§  46.  Extent  of  liability. 
Conflict  of  laws  as  to.    63:  529. 
Conclusiveness    of    shipper's    valuation.     4: 

545.* 
Restriction    of    liability    by   valuation.     6: 

851.* 
Rule  as  to  valuation  fixed  in  bill  of  lading. 

12:  799.* 
Allowance  of  interest  on  damages  to  prop- 
erty   injured,    delayed,    or 
lost  in  transportation.    18: 
451. 
Loss  of  profits  as  element  of  damages  for 
^  breach     of     contract     for 

carriage.     53:  83. 
§  47.  Liens. 
For  freight.     4:  376.* 
Maritime  lien  for  freight.     70:  368. 
Waiver  of  lien  of,  by  attachment  or  execu- 
tion.    50:  721. 


CARRYING  ON  BUSINESS. 

What  Constitutes,  see  Corporations,  VII.  b; 
License,  81. 

Editorial  Notes. 
What   constitutes.     14:  529. 


CARRYING  WEAPONS. 

Liability  to  Arrest  for.  Without  Warrant, 
see  Arrest,  28. 

Constitutional  Right  as  to,  see  Constitu- 
tional Law,  350,  613. 

Ordinance  Against,  see  Criminal  Law,  184. 

Evidence  of  Deceased's  Habits  as  to,  see 
Evidence,  1727. 


Prohibition  against  Imposing  Fine  for,  see 
Prohibition,  30. 

1.  The  constitutional  right  of  citizens  to 
bear  arms  is  not  violated  by  a  law  which 
makes  it  unlawful  for  tramps  to  carry  fire- 
arms or  other  dangerous  weapons.  State 
v.  Hogan,  63  Ohio  St.  202,  58  N.  E.  572, 

52:  863 

2.  The  carrying  of  arms  in  a  quiet,  peace- 
able, and  ordinary  manner,  but  concealed  on 
or  about  the  person,  is  not  either  a  breach 
of  the  peace  nor  malum,  in  se.  Neither  does 
it,  of  itself,  tend  to  a  breach  of  the  peace, 
but  it  becomes  a  misdemeanor  only  because 
it  is  prohibited  by  statute.  The  statute 
does  not  declare  it  to  be  a  breach  of  the 
peace,  nor  does  the  statute  authorize  an 
arrest  without  warrant  for  its  infraction. 
Roberson  v.  State,  43  Fla.  156,  29  So.  535, 

52:  751 

3.  The  constitutional  right  to  keep  and 
bear  arms  for  the  common  defense  is  not 
violated  by  Mass.  Stat.  1893,  chap.  367,  § 
124,  prohibiting  uTiauthorized  bodies  of  men 
to  associate  together  as  a  military  organiza- 
tion or  drill  and  parade  with  arms  in  cities 
and  towns.  Com.  v.  Murphy,  166  Mass.  171, 
44  N.  E.  138,  32:  606 
What  weapons  may  be  carried. 

4.  The  constitutional  right  to  keep  and 
bear  arms  does  not  extend  to  such  weapons 
as  pistols,  bowie-knives,  etc.,  but  that  pro- 
vision must  be  construed  in  reference  to  pre- 
existing laws,  which  prohibited  the  carry- 
ing of  certain  weapons,  and  must  be  held  to 
refer  to  weapons  of  warfare  to  be  used  by 
the  militia.  State  v.  Workman,  35  W.  Va. 
367,  14  S.  E.  9,  14:  600 

5.  Ordinary  breech-loading  Springfield 
rifles  which  have  been  altered  so  that  they 
cannot  discharge  a  missile  by  means  of  gun- 
powder or  any  other  explosive,  which  fact  is 
not  obvious  to  the  ordinary  observer,  are 
"firearms"  within  the  meaning  of  Mass. 
Stat.  1893,  chap.  367,  §  124,  prohibiting  un- 
authorized bodies  of  men  to  parade  with 
firearms.  Com.  v.  Murphy,  166  Mass.  171, 
44  N.  E.  138,  32:  606 
What  will  justify  carrying. 

6.  A  mere  indefinite  threat  of  violence, 
the  nature  and  extent  of  which  is  not  shown, 
unaccompanied  by  any  act  or  conduct  evin- 
cing a  design  to  do  violence,  will  not  justify 
the  carrying  of  a  pistol,  under  W.  Va.  Code, 
chap.  148,  §  7.  State  v.  Workman,  35  W. 
Va.  367,  14  S.  E.  9,  14:  600 

Editorial  Notes. 

Constitutionality  of  laws  restricting  right. 

14:600. 
Cruel  and  unusual  punishment  for.     35:571. 


CARS. 

Carrier's    Duty'  to    Place    on    Switch,    see 

Carriers,  746. 
Duty  to  Furnish  Safe  Cars,  see  Carriers,  763. 
For  Shipment  of  Live  Stock,  Safetv  of.  see 

Carriers,  851-853. 


428 


CAR  SERVICE  ASSOCIATION— CASE,  I. 


Carrier's  Contract  or  Duty  to  Furnish,  see 
Carriers,  II.  b,  8. 

Illegal  Agreement  for  Use  of  Sleeping  Car, 
see  Conspiracy,  1. 

Damages  for  Failure  to  Furnish,  see  Dam- 
ages, 231. 

Judicial  Notice  as  to,  see  Evidence,  85, 
86,  88. 

Levy  on,  see  Levy  and  Seizure,  30-34. 

Duty  to  Inspect,  see  Master  and  Servant, 
'226-229. 

Assumption  of  Risk  as  to,  see  Master  and 
Servant,  298-302. 

Contributory  Negligence  of  Employee  as  to, 
see  Master  and  Servant,  405-416. 

Injury  to  Employee  by,  see  ^uaster  and 
Servant,  IL  a,  4,  d,   (3). 

Liability  for  Negligently  Loading,  see  Negli- 
gence, 62. 

As  Dangerous  Attraction  to  Children,  see 
Railroads,  97. 

Taxation  of,  see  Taxes,  160,  161,  167,  168, 
227-229. 


CAR  SERVICE  ASSOCIATION. 

Illegal  Combination  of,  see  Conspiracy,  185, 

186. 
See  also  Carriers,  965,  966,  970,  974. 


CAR  STARTER. 


As   Fellow  Servant,   see  Master  and  Serv- 
ant, 597. 


CARTRIDGES. 


Negligence   in  Sale  of,  see  Negligence,  55, 
445. 


CASE. 

I.  In  General. 
IL  Inducing  Breach  of  Contract. 
III.  Editorial  Notes. 

Effect  of  Novelty  on  Right  to  Maintain  Suit, 

see  Action  or  Suit,  13,  14. 
Joinder  with  Trover,  see  Action  or  Suit,  89. 
Acts    Pursuant   to   Judgment   Subsequently 

Reversed  as  Basis  of  Action,  see  Appeal 

and  Error,  1244. 
For  Conspiracy,  see  Conspiracy. 
Right  of  Action  for  Performing  Autopsy,  see 

Corpse,  8. 
Right  of  Action  for  Mutilating  Corpse,  see 

Corpse,  10-12. 
Liability    for    Interference    with    Right    of 

Burial,  see  Corpse,  13,  14. 
Liability    to    Punitive    Damages    for    Con- 
spiracy, see  Damages,  28,  29. 
Right    of    Action    for    Causing    Death,    see 

Death. 
Injuries  by  Fright,  see  Fright. 


Liability  of  Seller  or  Manufacturer  for  In- 

iurv  Due  to  Defects,  see  Negligence,  L 

b,  2. 
Right  of  Action  by  Person  in  Possession  for 

Injury  to  Property,  see  Parties,  19-21. 
For  Negligence  of  Physician,  see  Physician* 

and  Surgeons,  58. 
Liability  for  Seduction,  see  Seduction. 
Against  Sheriff,  see  Sheriff,  •!. 
Venue  of  Action,  see  Venue,  3. 
See  also  Action  or  Suit,  2;  Boycott;  Torts. 


I.  In  General. 

1.  A  direct  precedent  for  the  action  is  not 
necessary  to  give  a  right  of  action  for  a 
wrong.  Kujek  v.  Goldman,  150  N.  Y.  176, 
44  N.  E.  773,  34:  15ft 

2.  An  action  lies  for  every  injury,  suffered 
by  reason  of  a  violent  or  malicious  act,  to 
a  man's  occupation,  profession,  or  way  of 
getting  a  livelihood.  Hundley  v.  Louisville 
&  N.  R.  Co.  105  Ky.  162,  48  S.  W.  429, 

63:  289 

3.  If  a  person,  by  the  fraud  of  another, 
or  of  someone  for  whose  conduct  he  is  re- 
sponsible, becomes  a  party  to  a  written  in-' 
strument  without  reading  it  or  personally 
knowing  the  contents  thereof,  he  is  not  pre- 
cluded thereby  from  obtaining  judicial  re- 
dress, in  some  form  of  action,  for  any  in- 
jury which  may  be  thereby  caused  to  him 
through  such  instrument  not  being  what  he 
supposed  it  to  be.  Bostwick  v.  Mutual*  L. 
Ins.  Co.  116  Wis.  392,  89  N.  W.  638,  92  N.  W. 
246,  67:705 
Wrong  motive. 

For  Editorial  Notes,  see  infra.  III. 

4.  The  motive  of  a  person  in  the  exercise 
of  a  legal  right  is  immaterial.  Raycroft  v. 
Tayntor,  68  Vt.  219,  35  Atl.  53,  33:  225 

5.  The  legality  of  an  act  cannot  be 
changed  or  affected  by  the  motive  with 
which  it  is  done.  State  v.  Van  Pelt.  136 
N.  C.  633,  49  S.  E.  177,  08:  760 

6.  An  act  which  does  not  of  itself  amount 
to  a  legal  wrong  cannot  be  made  so  bj-  a  bad 
motive.  Chambers  v.  Baldwin,  91  Kv.  121, 
15  S.  W.  57,  11:  545 
Against  carrier. 

When  Proper  Form  of  Remedy,  see  Election 
of  Remedies,  25. 

7.  A  shipper  of  goods  may  maintain  an 
action  on  the  case  against  the  carrier  for 
their  negligent  injury,  where  they  were  sold 
and  shipped  subject  to  the  payment  of  a 
draft  against  the  bill  of  lading,  the  shipper 
guaranteeing  payment  of  freight,  although 
when  notified  of  the  injury  he  refused  to 
give  directions  as  to  their  disposition  on  the 
ground  that  he  no  longer  had  title,  if  the 
carrier  did  not  act  upon  such  claim  to  his 
prejudice.  Spence  v.  Norfolk  &  W.  R.  Co. 
92  Va.  102,  22  S.  E.  815,  29:  578 
Against  servant  or  agent. 

Conspiracy  to  Prevent  Increase  in  Wages, 
see  Conspiracy,   .57-59. 

Conspiracy  to  Induce  Discharge  of,  see  Con- 
spiracy. 62,  63.  71.  72. 

8.  The   failure  of  a   servant   or  agent   to 


CASE.  I. 


429 


pay  over  on  demand  money  which  he  has 
collected  for  his  principal  will  not  sustain 
an  action  of  trespass  on  the  case,  but  the 
onlv  remedy  is  by  assumpsit  or  debt.  Royce 
V.  Oakes,  20  R.  I.  418,  39  Atl.  758,  39:  845 
Inducing  marriage. 

9.  A  man  who  induces  another  to  marry 
a  girl  by  false  representations  that  she  is 
virtuous  when  in  fact  she  has  been  seduced 
by  himself  and  has  become  pregnant  is  liable 
for  damages  in  an  action  by  the  husband 
for  fraud.  Kujek  v.  Goldman,  150  N.  Y. 
176,  44  N.  E.  773,  34:  156 

10.  Loss  of  the  comfort  founded  upon  af- 
fection and  respect  derived  from  conjugal  so- 
ciety is  sufficient,  irrespective  of  any  pecu- 
niary damages,  to  sustain  an  action  by  a 
husband  against  one  who  has  fraudulently 
induced  him  to  marry  a  woman  who  is 
pregnant  by  another.  Id. 
Ordering  from  public  resort. 

Damages  for  Unlawful  Ejection  from  Public 
Resort,  see  Damages,  578. 

11.  One  not  belonging  to  the  proscribed 
class  has  a  right  of  action  for  the  actual 
damages  suffered  in  case  he  is  ordered  from 
the  grounds  when  visiting  a  place  of  public 
resort  and  behaving  in  a  proper  manner, 
by  the  manager  or  his  representative,  in  a 
way  to  subject  him  to  humiliation  or  dis- 
grace, although  the  act  is  done  through  mis- 
take. Davis  V.  Tacoma  R.  &  P.  Co.  35 
Wash.  203,  77  Pac.  209,  66:  802 
Polluting  stream. 

12.  Case,  and  not  trespass,  is  the  proper 
form  of  action  for  applying  a  running 
stream  to  such  uses  as  to  render  it  impure 
and  fill  it  with  a  sediment  which  is  deposited 
on  the  land  of  a  lower  proprietor,  thereby 
preventing  him  from  putting  the  water  to 
the  ordinarv  uses,  and  damaging  his  land. 
Drake  v.  Ladv  Ensley  Coal,  I.  &  R.  Co.  102 
Ala.  501,  14  So.  749,  24:  64 
Wrongful  sale  of  land. 

13.  Interferenco  with  ownership  of  land 
by  advertising  and  selling  it  under  a  fraudu- 
lent mortgage,  and  notifying  tenants  not  to 
pay  rent  to  the  owner,  constitutes  an  action- 
able wron?.  Gore  v.  Condon,.  87  Md.  368, 
39  Atl.  1042,  40:  382 

14.  The  disgrace  and  aisrepute  into  which 
the  owner  of  property  is  brought  on  account 
of  the  advertising  and  sale  thereof  under  a 
fraudulent  mortgage  does  not  constitute  a 
cause  of  action.  Id. 
Wrongful  disposition  of  debtor's  property. 

15.  A  general  creditor  cannot  maintain  an 
action  on  the  case  for  conspiracy  of  the 
debtor  and  other  persons  to  dispose  of  the 
debtor's  property  fraudulently  and  defeat 
his  claim,  if  there  was  no  fraud  in  the  crea- 
tion of  the  debt.  Field  v.  Siegel,  99  Wis. 
605,  75  Js.  W.  397,  47:433 
Injury  to  business. 

Conspiracy    to    Injure    Business,    see    Con- 
spiracy, I.  c. 
For  Editorial  Notes,  see  infra.  III. 

16.  To  represent  to  customers  of  a  rival, 
maliciously  and  for  the  purpose  of  injuring 
his  business,  that  his  machinery  and  appli- 
ances are  dangerous  and  unsafe  for  the  pur- 
poses for  which  they  are  desijmed.  is  an  ac- 


tionable wrong.  West  Virginia  Transp.  Co. 
V.  Standard  Oil  Co.  50  W.  Va.  611,  40  S.  E. 
591,  56:  804 

17.  A  policy  calculated  to  destroy  or  in- 
jure the  business  of  another  by  threats  or 
intimidation  is  unlawful,  and  creates  a  lia- 
bility for  damages  to  the  person  injured. 
Jackson  v.  Stanfield,  137  Ind.  592,  36  N.  E. 
345,  37  N.  E.  14,  23:  588 

18.  Statements  that  loan  agents  are  inat- 
tentive and  neglectful,  and  have  been  guilty 
of  fraudulent  conduct,  for  which  their  prin- 
cipal has  taken  the  business  from  them,  and 
that  they  are  insolvent,  made  for  the  pur- 
pose of  breaking  them  up  in  business  and 
securing  their  custom,  give  them  a  right  of 
action  for  the  injuries  thereby  inflicted' upon 
them.  Brown  v.  American  F.  L.  M.  Co.  97 
Tex.  599,  80  S.  W.  985,  67:  195 

19.  A  merchant  does  not  subject  himself 
to  liability  to  an  action  for  damages  in 
favor  of  a  manufacturer  by  sending  circulars 
to  the  retail  trade  ofi'ering  a  small  quantity 
of  such  manufacturer's  product,  which  he 
owns,  at  a  cut  price  tor  the  purpose  of  in- 
juring and  destroying  such  manufacturer's 
trade  and  depressing  the  price  of  his  goods 
on  the  market.  Passaic  Print  Works  v.  Ely 
&  W.  Dry  Goods  Co.  44  C.  C.  A.  426,  105 
Fed.  163,  62:  673 

20-21.  A  man  who  hires  lodging  rooms  in 
a  dwelling  house  is  liable  to  the  owner  for 
injuries  to  the  good  name  of  the  house  and 
the  damage  to  the  owner's  custom  and 
business,  if  he  brings  dissolute  and  immoral 
persons  to  such  rooms  and  applies  the  rooms 
to  the  purpose  of  assignation  or  to  create  a 
nuisance  therein.  Sullivan  v.  Waterman,  20 
R.  1.  372,  39  Atl.  243,  39:  773 

Injury  to  property. 

22.  Injury  to  another's  property  in  the 
exercise  of  a  legal  right — especially  one  con- 
ferred by  statute — does  not  render  one  lia- 
ble for  damages,  unless  they  were  caused  by 
want  of  care  and  skill  ordinarily  exercised 
in  like  cases.  Coyne  v.  ^Mississippi  &  R.  R. 
Boom  Co.  72  Minn.  633,  75  N.  W.  74^, 

41 :  494 

23.  The  owner  of  land  occupied  by  a  ten- 
ant may  sue  in  trespass  on  the  case  for  the 
damage  to  his  reversionary  interest.  Rus- 
sell v.  Meyer,  7  N.  D.  335,  75  N.  W.  262, 

47:637 

24.  One  who  causes  noxious  vapors  to  rise 
upon  the  land  of  an  adjoining  proprietor  by 
Avrongfully  obstructing  the  natural  drain  of 
surface  water  therefrom  is  liable  for  the 
damage  the  same  as  if  such  vapors  had 
been  wrongfully  caused  to  rise  on  and  from 
his  own  land.  Garland  v.  Aurin,  103  Tenn. 
555,  53  S.  W.  940,  48:  862 

25.  One  who  wrongfully  enters  a  black- 
smith shop  and  kindles  a  fire  in  the  forge 
is  liable  in  case  for  consequential  injuries 
caused  by  the  fire  spreading  and  destroying 
the  building  and  personal  property  therein. 
Wyant  v.  Grouse,  127  Mich,  168,  86  N.  W. 
527,  53:626 
For  penalty. 

26.  A  penalty  prescribed  by  statute  for 
the  benefit  of  a  party  injured,  no  part  of 
which  goes  to  the  state,  may  be  recovered 


430 


CASE,  II.,  III. 


by  him  in  an  action  of  trespass  on  the  case 
where  no  specific  mode  of  recovery  is  pro- 
vided. 3Iapel  V.  John,  42  W.  Va.  30,  24 
S.  E.  608,  32:  800 


11.  Inducing  Breach  of  Contract. 

For  Editorial  Xotes,  see  infra,  III. 

27.  Maliciously  inducing  another  to  break 
a  contract  with  a  third  person  will  not  cre- 
ate a  liability  to  the  latter,  when  it  is  done 
without  threats,  violence,  fraud,  falsehood, 
deception,  or  benefit  to  the  person  inducing 
the  breach.  Boysen  v.  Thorn,  98  Cal.  578, 
33  Pac.  492,  21 :  233 

28.  Inducing  another  to  break  his  contract 
will  not  render  one  liable  to  the  other  party 
to  the  contract,  although  it  is  done  mali- 
ciously and  for  the  sake  of  profit,  if  without 
force  or  fraud.  Chambers  v.  Bald^vin,  91 
Ky.  121,  15  S.  W.  57,  11:545 

29.  A  party  to  a  contract,  who  is  injured 
by  reason  of  the  failure  of  the  other  party 
to  comply  with  its  terms,  cannot  recover 
damages  for  the  negligent  act  of  a  third 
person,  by  which  the  performance  of  the 
contract  was  rendered  impossible.  Byrd  v. 
English,  117  Ga.  191,  43  S.  E.  419,  64:  94 

30.  Notifying  a  railroad  company  not  to 
haul  any  more  sand  or  gravel  from  certain 
premises,  for  the  reason  that  the  premises 
are  the  property  of  the  one  giving  the 
notice,  which  causes  the  company  to  refuse 
to  comply  with  its  contract  to  haul  such 
sand  and  gravel,  will  not  render  the  one 
giving  the  notice  liable  for  the  damages 
caused  by  the  breach  of  contract.  Glencoe 
Sand  &  G.  Co.  v.  Hudson  Brothers'  Commis- 
sion Co.  138  Mo.  439,  40  S.  W.  93,        .36:  804 

31.  Inducing  one  of  two  parties  to  a  con- 
tract to  break  it,  intending  thereby  to  injure 
the  other,  or  to  obtain  a  benefit  for  one's 
self,  constitutes  an  actionable  wrong.  Gore 
V.  Condon.  87  Md.  368,  39  Atl.  1042,     40:  382 

32.  Wantonly  and  maliciously  inducing  a 
person  to  violate  his  contract  with  another, 
to  the  Litter's  injury,  whether  for  one's  own 
benefit  or  not,  is  an  actionable  wronj;. 
West  Virginia  Transp.  Co.  v.  Standard  Oil 
Co.  .50  W.  Va.  611.  40  S.  E.  591,  56:  804 

33.  Maliciously  to  persuade  another  to 
break  his  contract  with  a  third  person  for 
the  purpose  of  injuring  the  latter  is  an  ac- 
tionable wrong  if  the  injury  results  as  in- 
tended. Doremus  v.  Hennessv,  176  111.  608, 
52  X.  E.  924.  '43:  797 

.'54.  One  who  is  responsible  for  another's 
engauing  in  business  in  breach  of  his  con- 
tract not  to  do  so  is  liable  for  the  damages 
thereby  caused  to  the  other  contracting 
party,  wliether  he  induces  the  breach  of 
the  fontract  or  not.  Raymond  v.  Yarring- 
ton.  00  'J'ex.  443,  73  S.  w!  800,  62:  902 

Inducing  servant  to  leave  employment. 
For  Editorial  Notes,  see  infra,  III. 

3.1.  One  who  employs  a  person  in  igno- 
rance of  the  fact  that  he  was  under  a  time 
contract  to  work  for  another,  in  violation  of 
which    he   had    left    the    latter's    service,    is 


not  liable  in  damages  to  the  former  em- 
ployer because,  when  informed  of  the  serv- 
ant's breach  of  contract,  he  fails  to  dis- 
charge him,  wheje  the  servant,  though  of- 
fering to  release  his  new  employer,  expresses 
his  determination  not  to  return  to  the  one 
whose  service  he  has  abandoned.  Wolf  v. 
New  Orleans  Tailor-Made  Pants  Co.  113 
La.  388,  37  So.  2,  67:  65 

Not  to  join  labor  union. 

36.  Statutory  authority  to  workmen  to 
form  associations  for  mutual  aid,  and  to 
refuse  to  work  for  any  employer  under  cer- 
tain conditions  without  being  subject .  to 
prosecution  for  conspiracy  will  not  justify 
members  of  a  labor  union  in  enticing  em- 
ployees to  break  their  contracts  not  to  be- 
come members  of  such  unions  to  the  injury 
of  their  employer's  business.  Flaccus  v. 
Smith,  199  Pa.  128,  48  Atl.  894,  54:  640 
Inducing  discharge  of  servant. 

Master's  Liability  for  Wrongful  Discharge, 

see  Master  and  Servant,  42,  43. 
Allegation  as  to,  see  Pleading,  386. 
For  Editorial  Notes,  see  infra,  III. 

37.  A  patron  of  a  street  railway  company 
incurs  no  liability  to  a  conductor  by  re- 
porting to  the  superintendent  of  the  com- 
pany such  conductor's  misconduct  while  on 
duty  toward  a  passenger,  though  in  mak- 
ing the  report  he  is  prompted  by  ill  will  and 
a  desire  to  secure  the  conductor's  discharge 
from  the  service  of  the  company.  Lancaster 
V.  Hamburger,  70  Ohio  St.  156,  71  N,  E. 
289,  65:85& 

38.  One  who  procures  the  discharge  of  an 
employee  not  engaged  for  any  definite  time, 
by  threatening  to  terminate  a  contract  be- 
tween himself  and  the  employer,  which  he 
had  a  right  to  terminate  at  any  time,  is 
not  subject  to  an  action  by  the  employee 
for  damages,  whatever  may  have  been  his 
motive  in  procuring  the  discharge.  Ray- 
croft  V.  Tayntor,  68  Vt.  219,  35  Atl.  53, 

33:  225 

39.  That  an  employment  is  at  will,  and 
the  employer  is  free  from  liability  for  dis- 
charging a  servant,  does  not  exempt  from 
liability  one  who  has  controlled  the  employ- 
er's action  and  maliciously  procured  the  dis- 
charge. Moran  v.  Dunphy,  177  Mass.  485, 
59  N.  E.  125,  52:  115 

40.  The  malicious  procurement  of  a 
breach  of  contract  of  employment,  resulting 
in  damage,  where  the  procurement  was  dur- 
ing the  subsistence  of  the  contract,  is  an 
actionable  wrong.  Employing  Printers'  Club 
V.  Dr.  Blosser  Co.  122  Ga.  509,  50  S.  E.  353, 

69:90 

41.  Maliciously  and  without  cause  procur- 
ing the  discharge  of  an  employee  is  an  ac- 
tionable tort,  whether  this  is  accomplished 
by  intimidation,  slander,  or  malevolent  ad- 
vice. Moran  v.  Dnnphv,  177  Mass.  485,  59 
N.  E.  125,  '  52:  lib 


m.  Editorial  Notes. 

At  common  law;  what  action  founded  upon. 
11:547.* 


CA.se  MADE;   CASES  CERTIFIED. 


431 


Action  by  general  creditor  for  damages 
against  third  person  for 
fraud  in  preventing  plain- 
tiff from  collecting  his 
claim.  47:433. 
Action  on,  for  injury  to  business  or  occu- 
pation; etiect  of  malice  on 
liability.  62:694. 
Liability  of  a  person  in  damages  for  induc- 
ing a  third  party  to  break 
his  contract.     21:233. 

The  fundamental  principles  of  the  ac- 
tion.    21:234, 

Malice  the  gist  of  the  action.     21 :235. 

Contracts  generally.     21:236. 

Between  master  and  servant.     21:238. 


CASE   MADE. 
On  Appeal,  see  Appeal  and  Error,  IV.  n. 

♦-•-♦ 

CASES  CERTIFIED. 

Presumption  as  to,  see  Appeal  and  Error, 

454. 
See  also  Agreed  Case. 

1.  A  judge  has  sat  in  a  case  so  as  to  be 
entitled  to  dissent  from  the  decision  and 
cause  the  case  to  be  certified  to  another 
court  on  the  ground  of  a  conflict  of  deci- 
sions, notwithstanding  the  fact  that  he  has 
not  had  any  consultation  with  the  other 
judges  on  the  merits  of  the  case,  where  he 
was  on  the  bench  when  the  case  was  argued 
and  submitted,  and  afterwards  agreed  with 
the  other  judges  that  the  decision  should  be 
withheld  for  a  time,  and,  on  learning  of  a 
decision  rendered  by  them  in  his  absence, 
promptly  sent  to  the  judge  who  wrote  the 
opinion  a  memorandum  stating  that  it  was 
in  conflict  with  another  decision,  and  that  a 
motion  for  a  rehearing  ought  therefore  to 
be  granted,  in  addition  to  which  he  filed  a 
dissenting  opinion  pending  the  motion  for 
rehearing,  and  was  on  the  bench,  but  not 
consulted,  when  his  associates  overruled  that 
motion  in  accordance  with  an  agreement 
they  had  previously  made,  and  of  which 
they  had  notified  him.  State  ex  rel.  Hezel 
V.  Bland,  148  Mo.  625,  50  S.  W.  293,     43 :  845 

2.  A  judgment  that  the  respondent  cor- 
poration is  probably  guilty,  whereupon  the 
case  is  certified  to  the  supreme  court  upon 
the  question  of  the  constitutionality  of  a 
statute  under  whiph  the  corporation  is 
cherged,  is  a  sufficient  rendering  of  judg- 
ment under  R.  I.  Pub.  Stat,  cliap.  220,  §  2, 
providing  that  the  case  may  be  certified 
when  judgment  is  rendered  in  the  cause 
against  the  party  raising  the  constitutional 
question.  State  v.  Brown  &  S.  Mfg.  Co.  18 
R.  I.  16,  25  Atl.  246,  17:  856 

3.  The  United  States  circuit  court  of  ap- 
peals will  not,  upon  denying  a  motion  for 
rehearing,  certify  the  questions  involved  to 
the  United  States  Supreme  Court  under  the 


authority  given  it  to  certify  any  questions 
or  propositions  of  law  concerning  Avhich  it 
desires  the  instruction  of  that  court  for  its 
proper  decision,  but  such  certification  will 
be  made  only  before  decision  as  upon  the 
court's  own  motion.  Andrews  v.  National 
Foundry  &  P.  Works,  22  C.  C.  A.  110,  46 
U.  S.  App.  281,  76  Fed.  166,  36:  139 

Questions  to  be  certified. 
See  also  infra.  Editorial  Notes. 

4.  The  very  question  of  law  is  not  certi- 
fied, within  the  meaning  of  Tex.  act  May  2, 
1893,  by  presenting  a  petition  of  plaintiff 
covering  a  number  of  pages,  with  exceptions 
thereto.  Union  C.  L.  Ins.  Co.  v.  Chowning, 
86  Tex.  654,  26  S.  W.  982,  24:  504 

5.  The  very  question  to  be  decided,  which 
the  court  of  civil  appeals  is  by  statute  au- 
thorized to  certify  to  tlie  supreme  court,  is 
not  an  abstract  question  which  may  deter- 
mine the  issue  as  presented  to  that  court, 
but  the  issue  itself.  Galveston,  BL  &  S.  A. 
R.  Co.  V.  Zantzinger,  92  Tex.  365,  48  S.  W. 
563,  44:  553 

6.  The  question  of  the  right  of  a  boy  to 
recover  from  a  railroad  company  whose  en- 
gineer turns  hot  water  and  steam  on  him  to 
drive  him  from  the  engine,  for  the  loss  of 
his  leg  in  attempting  to  get  off,  in  the  event 
that  his  action  succeeding  the  assault  was 
negligent,  does  not  arise  upon  an  instruction 
to  find  for  plaintiff  if  the  engineer's  act  was 
negligent,  without  specifying  whether  the 
recovery  was  to  be  for  loss  of  leg  or  for  the 
assault,  so  that  it  can  be  certified  by  the 
court  of  civil  appeals  to  the  supreme  court; 
but  the  right  of  his  mother  to  recover  does 
so  arise,  since  her  recovery,  if  any,  must  be 
based  on  the  loss  of  the  leg.  Id. 

7.  The  "very  question  to  be  decided," 
which  is  required  to  be  certified  by  the  court 
of  .civil  appeals,  under  the  Texas  statutes, 
is  not  presented  by  a  certificate  of  the  ques- 
tion whether  or  not  a  demurrer  should  be 
sustained  .  to  plaintiff's  petition.  Waco 
Water  &  L.  Co.  v.  Waco,  86  Tex.  661,  26 
S.  W.  943,  31 :  392 

8.  The  question,  "What  judgment  should 
be  rendered  in  this  action  ?" — is  not  a  proper 
one  for  reservation  under  the  Wyoming 
statute  which  authorizes  questions,  not 
cases,  to  be  certified  by  the  supreme  court. 
Rasmussen  v.  Baker,  7  Wyo.  117,  50  Pac. 
819,  38:  773 
Answer  to  question;  matters  considered. 

9.  A  question  arising  upon  the  pleadings 
which  is  certified  to  the  supreme  court  for 
decision  cannot  be  answered  if  the  facts  do 
not  suflBciently  appear  in  the  pleadings  to 
authorize  a  complete  determination  of  it. 
Grand  Island  &  N.  W.  R.  Co.  v.  Baker,  6 
Wyo.  369,  45  Pac.  494,  34:  835 

10.  The  validity  of  a  defense  demurred  to 
may  be  considered  notwithstanding  defects 
in  the  complaint,  when  the  question  is  cer- 
tified for  review  to  the  court  of  appeals  un- 
der N.  y.  Code  Civ.  Proc.  §  190,  subd.  2, 
and  the  defendant  has  waived  the  defects  in 
the  complaint  by  omitting  to  call  attention 
to  them  or  to  have  any  questions  with  ref- 
erence thereto  certified.  Baxter  v.  McDon- 
nell, 155  N.  Y.  83,  49  N.  E.  667,  40:  670 


432 


CASES  SUBMITTED— CAUSE. 


Editorial  Notes. 

Definiteness  of  question  to  be  certified.  31: 
392. 

The  whole  case  must  not  be  sent  up. 
31:392. 

The  case  cannot  be  split  up  into  dis- 
tinct points  to  take  up 
whole  case.     31 :  392. 

The  importance  of  the  question  is  im- 
material.    31:393. 

The  point  of  difference  must  be  certified. 
31:393. 

The  question  must  not  be  general.  31: 
393. 

The  question  must  not  be  abstract.  31 : 
393. 

The  question  must  be  perfectly  stated. 
31:393. 

It  must  not  involve  a  question  of  fact. 
31:394. 

Necessary  facts  must  be  stated.  31:394; 

Question  whether  evidence  or  indict- 
ment sufficient.     31:394. 

Question  whether  demurrer  should  be 
sustained.     31:395. 

What  will  be  considered.     31:395. 

Questions  which  have  been  held  proper. 
31:395. 


♦  •» 


CASES  SUBMITTED. 

Editorial  Notes. 
Under  New  York  Code.     4:685.* 


♦  •» 


CASH  DIVIDENDS. 

Relative  Rights  of  Life  Tenant  and  Re- 
maindermen to,  see  Life  Tenamts, 
29-36. 

♦  •  » 

CASHIER. 

Authority  of,  see  Banks,  35-51,  60-62,  274. 

Mortgage  Taken  by,  see  Banks,  275. 

Liability  for  Theft  by,  see  Banks,  76. 

Bond  for  Fidelity  of,  see  Bonds,  34-39; 
Principal  and  Surety,  22-24,  46. 

Election  of  Remedy  for  Wrong  of,  see  Elec- 
tion of  Remedies,  55, 

Libel  by,  see  Libel  and  Slander,  103. 

Notice  to,  see  Notice,  65-68. 

As  Interested  Witness,  see  Witnesses,  203. 


CASHIER'S  CHECKS. 
Imputing  to  Principal  Agent's  Knowledge  as 

to      SGG    ^OtlCG     45 

See  also  Banks,  114,  115,  131,  165,  238,  258, 
309;  Checks,  5,  39,  42. 


<  •  » 


CASTING  VOTE. 

By    Mayor,    see    Parliamentary    Law, 
31-35. 


18, 


Editorial   Notes. 

By  presiding  officer  in  deciding  tie  on.  elec- 
tion.    47:561. 


CASUS  OMISSUS. 


In  Statute,  Power  of  Court  to  Supply,  see 
Courts,  493. 


CATALOGUE. 


As  Baggage,  see  Carriers,  703. 
Receiver  of,  see  Receivers,  19. 
Property  in  Secrets  in,  see  Secrets,  1,  2. 


CATTLE. 

Transportation  of,  see  Carriers,  n.  b,  6;  IV^ 

§  39. 
Claim  for  Unnecessary  Destruction  of,  see 

Claims,  22. 
See  also  Animals. 

Editorial  Notes. 

Liability  of  vendor  of  unwholesome  food  for. 
21:140. 


CATTLE    GUARDS. 


Due  Process  in  Requiring  Construction  of, 

see  Constitutional  Law,  842. 
Evidence  as  to  Removal  from,  see  Evidence, 

2080. 
Duty   of  Railroads  as  to,  see  Master  and 

Servant,  171,  172;  Railroads,  240-242. 


CATTLE  PASS. 

Easement  of,  see  Easements,  87. 

♦  «  » 

CATTLE  PEN. 

Negligence  as  to,  see  Master  and  Servant, 
167. 


CAUCUS. 


See  Elections,  m. 


CAUSA  MORTIS. 
Gift,  see  Gift,  11. 


CAUSE. 

Meaning  of  Term,  see  Clerks,  8. 


CAVEAT  EMPTOR— CEMETERIES. 


433 


Presumption  and  Burden  of  Proof  as  to,  see 

Evidence,  425-440. 
Opinion  Evidence  as  to,  see  Evidence,  Vll.  c. 
Sufficiency  of  Proof  of,  see  Evidence,  XII.  b. 
Of  Loss,   Death,   or   Injury,  see  Insurance, 

M.  h. 
Proximate  Cause,  see  Proximate  Cause. 
Question  for  Jury  as  to,  see  Trial,  II.  c,  2, 


CAVEAT  EMPTOR, 

Editorial   Notes. 

Rule  of.     6:73.* 

Application  of  doctrine  of,  to  judicial  sale. 
3:441.* 
To  execution  sales.     13:304.* 


CELEBRATIONS. 

Editorial  Notes. 
Appropriations  of  public  money  for.    14:475. 


CEMETERIES. 


Adverse  Possession  of  Burial  Lot,  see  Ad- 
verse Possession,  24,  29,  66. 
Issue  of  Stock  by  Cemetery  Company,  see 

Corporations,  147. 
Directing    Removal    of    Corpse    from,    see 

Corpse,  2-5. 
Damages  for  Trespass  on,  see  Damages,  415. 
Dedication  of  Land  for,  see  Dedication,  20. 
Prescriptive  Right   in,   see   Easements,   41; 

and  also   infra,   Editorial  Notes. 
Ejectment   for   Burial   Lot,   see   Ejectment, 

26,  27. 
Condemnation  of,  see  Eminent  Domain,  43. 
Condemnation    of    Land    for,    see    Eminent 

Domain,  92. 
Right  to  Compensation  on  Condemnation  of, 

see  Eminent  Domain,  297. 
Exemption  of,  from  Levy,  see  Exemptions, 

13,  14. 
Enjoining  Municipal  Interference  with,  see 

Injunction,  82. 
Regulation  of  Burial  within  City  Limits,  see 

Municipal  Corporations,  203-210. 
interment  in,  as  Nuisance,  see  Nuisances,  38. 
Provision  for  Erection  of  Fence  Around,  see 

Real  Property,  4. 
Condition  in  Conveyance  for,  see  Real  Prop- 
erty, 17. 
Assessments  on,  see  Public  Improvements, 

97,  98. 
Exemption   of,    from    Taxation,   see   Taxes, 

290,     318,     and     also     infra,     Editorial 

Notes. 
Executor  Setting  Apart  Separate  Fund  for 

Burial  Lot,  see  Trusts.  134. 
Burial  Lot  Passing  under  Residuary  Clause, 

see  Wills,  244. 

1.  Municipal  authorities   cannot  grant  to 

a  private ,  corporation  land  granted  by   the 

United  States  to  the  city  in  trust  for  "public 

uses"  and  which  has  been  set  apart  by  or- 

L.R.A.  Dig.— 28. 


dinance  ratified  by  the  legislature,  as  a 
cemetery,  to  be  "absolutely  dedicated  as 
such,"  although  the  grantee  intends  to  use 
it  as  such  and  to  bury  there  at  its  expense 
bodies  of  its  members  who,  if  not  members 
of  it,  would  be  buried  at  the  expense  of  the 
city.  La  Societa  Italiana  Di  Mutua  Benefi- 
cienza  v.  San  Francisco,  131  Cal.  169,  63  Pac. 
174,  53:382 

2.  The  purchase  of  cemetery  lands  al- 
ready improved  for  that  purpose  is  not 
within  the  provision  of  N.  Y.  act  1853,  limit- 
ing payments  for  the  land  out  of  the  cor- 
poration receipts  to  one  half  thereof.  Sey- 
mour V.  Spring  Forest  Cemetery  Asso.  144 
N.  Y.  333,  39  N.  E.  365,  26:  859 
Vesting  control  of,  in  city. 

3.  The  control  of  a  cemetery  which  has 
been  acquired  by  a  town  solely  for  public 
use  and  in  which  it  has  no  beneficial  in- 
terest may  lawfully  be  taken  from  it  by  the 
legislature,  and  vested  in  a  city  which  has 
been  organized  within  its  limits,  and  which 
embraces  the  cemetery  within  its  bounda- 
ries, if  the  rights  and  beneficial  interests  in 
the  property  of  the  inhabitants  of  both  city 
and  town  are  saved  to  them.  Columbus  v. 
Columbus,  82  Wis.  374,  52  N.  W.  425, 

16:  695 
Rights  as  to  burial  lots. 
See  also  infra.  Editorial  Notes. 

4.  A  coping  around  a  cemetery  lot  cannot 
be  lawfully  erected  by  the  widow  of  the 
man  buried  there,  against  the  objection  of 
the  owner  of  the  lot,  who  is  a  daughter  by 
a  former  marriage.  Thompson  v.  Deeds,  93 
Iowa,  228,  61  N.  W.  842.  35:  56 

5.  The  right  j|0  decorate  a  grave  with 
flowers  belongs  to  the  widow  and  all  the  kin 
to  the  person  buried  therein,  although  the 
cemetery  lot  is  owned  by  his  daughter;  and 
in  so  doing  they  must  not  interfere  with 
each  other.  Id. 

6.  A  widow  is  entitled  to  erect  a  suitable 
monument  for  her  deceased  husband  even  on 
a  cemetery  lot  belonging  to  his  daughter  by 
a  former  marriage,  where  he  was  buried 
by  his  wish  and  the  consent  of  all  parties, 
but  she  cannot  place  on  the  monument  the 
daughter's  name  or  that  of  her  former  hus- 
band, who  is  buried  on  the  same  lot.        Id. 

7.  The  right  of  sepulture  in  a  given  ceme- 
tery lot  exists  as  to  a  decedent  whose  de- 
ceased parent  was,  while  in  life,  the  owner 
thereof,  and  wjio,  as  heir  at  law  of  that 
parent,  inherited  an  undivided  interest  in 
the  lot.  Wright  v.  Hollywood  Cemetery 
Corp.  112  Ga.  884,  38  S.  E.  94,  52:  621 
Cessation  of  use  as;  effect. 

8.  As  long  as  rights  of  sepulture  in  land 
donated  lor  a  graveyard  are  outstanding  in 
the  public,  the  original  owners  have  no  right 
to  recover  the  use  of  the  land  for  any  enjoy- 
ment or  purpose  of  their  own.  Campbell  v. 
Kansas  City,  102  Mo.  326,  13  S.  W.  897, 

10:  593 

9.  The  original  use  of  land  dedicated  for  a 
graveyard  terminates,  and  the  fee  vests  in 
the  original  owners  or  their  legal  represent- 
atives free  from  it,  when  the  public  cease  to 
bury  in  the  ground,  and  refuse  or  neglect  to 
erect  or  preserve  monuments  to  indicate  the 


434 


CENSUS— CERTIFICATE. 


identity  of  those  already  buried,  or  to  give 
and  continue  to  the  place  the  character  and 
name  of  a  graveyard.  Id. 

10.  Reinterments  in  an  abandoned  grave- 
yard for  the  sole  purpose  of  preventing  a 
reverter  of  the  land,  which  had  been  dedi- 
cated for  that  purpose,  made  by  city  authori- 
ties on  the  final  grading  of  the  land  for  a 
public  park,  after  all  the  remains  which 
could  be  identified  had  been  removed  by  the 
city  undertaker,  or  by  the  friends  of  the 
parties  buried  there,  will  not  prevent  a 
reversion  of  the  land  to  the  donors,  where 
no  visible  grave  or  monument  is  left  to  per- 
petuate the  memory  of  the  dead,  but  the 
place  is  named  and  recognized  by  the  city 
as  a  park.  Id. 

11.  The  donor  of  land  for  a  graveyard  is 
not  estopped  from  claiming  a  return  of  it, 
after  an  abandonment  of  it  by  the  public  for 
graveyard  purposes,  by  the  fact  that  he  had 
sold  other  parcels  on  the  showing  of  a  map 
or  plat  which  dedicated  the  graveyard  to 
the   public.  Id. 

12.  The  title  of  a  municipal  corporation 
to  lands  granted  solely  for  iDurial  purposes 
reverts  when  by  statute  and  ordinance  the 
use  of  the  lands  for  such  purposes  is  pro- 
hibited. Newark  v.  Watson  (X.  J.  Err.  & 
App.)  m  X.  J.  L.  667.  29  Atl.  487,  24:  843 
Judicial  sale  of. 

13.  A  cemetery  company  organized  under 
Tex.  Rev.  Stat.  "art.  642,  'subd.  5,  authoriz- 
incr  the  creation  of  a  corporation  "for  the 
maintenance  of  a  public  or  private  ceme- 
tery," wliieh  purchases  land  and  dedicates 
it  as  a  public  burying  ground,  has  no  power, 
under  Tex.  Rev.  Stat.  arts.  715-717,  author- 
izing the  sale  of  lots  for  burial  purposes  and 
defining  the  rights  and  duties  of  such  cor- 
porations and  the  lot  owners,  to  create  debts 
on  the  faith  of  the  land  so  dedicated;  and  a 
sale  of  a  portion  of  such  land  for  a  debt  of 
the  company  is  void  as  in  violation  of  the 
rigiits  of  the  lot  owners.  Oakland  Cemetery 
Co.  v.  People's  Cemetery  Asso.  93  Tex.  569, 
57  S.  W.  27.  55:  503 
Police  regulations. 

14.  The  legislature  in  the  exercise  of  its 
police  power  can  lawfully  prohibit  the  use 
of  lands  for  the  purpose  of  burial,  when 
such  lands  are  held  by  a  municipal  corpoia- 
tion.  Newark  v.  Watson  (N.  J.  Err.  & 
App.)  m  X.  J.  L.  667,  29  Atl.  487,      24:  843 

Editorial   Notes. 

Prescriptive  right  to  maintain.     53:895. 
Injunctions    bv    municipality    against.     41: 

323. 
Injunction  against  municipality  maintaining 

nuisance  by.     23:303. 
Exenipti(m   of,   from  general  taxation.     10: 

365.* 
Liabilitv   to   assessment   for  local   improve- 
ments.    ,35:36. 
Character   of   estate    or    propertv   of   owner 
in  burial  lot.     67:118. 
Introductory     67 : 1 18. 
Easement.     67:119, 
License.     67:120. 
Devise.     67:121. 


Cemetery  dedicated  to  a  class.     67:122. 

When  held  in  common.     67:122. 

Right  to  mortgage.     67 :  122. 

Power  of  cemetery  authorities.     67 :  123. 

Trespass  on  lot  owner's  possession.     67: 
124. 

Ejectment.     67 :  125. 

Effect  upon,  of  legislative  act  or  mu- 
nicipal ordinance  closing 
cemetery.  67 :  125, 
Effect  of  language  in  grant  specifying  or  re- 
stricting property  for  use 
of  cemeteries.     19 :  266. 


CENSUS. 

As    Basis   of   Apportionment,    see   Election 

Districts,  2-4,  23. 
Judicial  Notice  of,  see  Evidence,  33,  34,  160. 


CENTENNIAL  EXPOSITION. 
See  Exhibition. 


CERTIFICATE. 


Of  Acknowledgment,  see   Acknowledgment. 

Xecessity  of,  for  Review  of  Will  Contest, 
see  Appeal  and  Error,  113. 

On  Appeal,  see  Appeal  and  Error,  IV.  1. 

Estoppel  of  Municipality  by,  see  Bonds,  150, 
155,  159, 

Of  Investment  Association,  see  Contracts, 
324-326,  406,  407;  Lottery,  25;  Receiv- 
ers, 21. 

Of  Performance  of  Contract,  see  Contracts, 
IV.  d. 

As  to  Right  of  Corporation  to  Name,  see 
Corporations,  35. 

Of  Stock  Generally,  see  Corporations,  V. 

Of  Stock,  Nature  of,  see  Corporations, 
355-357. 

Of  Stock,  Duplicates  of,  see  Corporations, 
369-371, 

Necessity  of,  to  Ti-ansfer  of  Stock,  see  Cor- 
porations, 393-396. 

Of  Stock,  Implied  Warranty  on  Sale  of, 
see  Sale.  91. 

Of  Officer  Taking  Deposition,  see  Deposi- 
tions, 7. 

Of  Deposit,  see  Banks,  TV.  a,  4. 

Of  Canvassers,  see  Elections,  264-267. 

Of  Election,  see  Elections,  271-273. 

Of  Nominations,  see  Elections,  294,  309-315. 

Evidence  of,  see  Evidence,  2093. 

Of  Naturalization,  see  Evidence,  2280. 

As  Evidence,  see  Evidence,  IV.  c. 

Of  Engineer,  Weight  of,  see  Evidence,  2305. 

Of  Health  by  Medical  Examiner,  Estoppel 
by,  see  Insurance,  808. 

Of  Loss,  see  Insurance,  920. 

Of  Indebtedness.  Interest  on,  see  Interest,  2, 
68,  69,  94. 

For  Sale  of  Liquor,  see  Intoxicating  Liquors, 

n. 


CERTIFICATE  OF  DEPOSIT— CERTIORARI,  I.  a. 


435 


Of  City  as  Part  of  Indebtedness,  see  Munici- 
pal Corporation,  362,  363. 

Of  Presiding  Officer  of  Senate,  see  Parlia- 
mentary Law,  13. 

Of  Settler  on  Public  Lands,  see  Public 
Lands,  10-12. 

Of  Proper  Record  of  Deed,  see  Real  Prop- 
erty, 66. 

Of  Receivers,  see  Receivers,  III. 

Of  School  Teacher,  see  Schools,  38,  39,  58. 

By  Secretary  of  State,  see  Secretary  of 
State,  1. 

As  to  Passage  of  Act,  see  Statutes,  130,  137. 

As  to  Unpaid  Taxes,  see  Taxes,  506. 

Rights  of  Holder  of  Tax  Certificate,  see 
Taxes,  508. 

Of  Trust,  see  Trusts,  VI. 

Of  Weight  of  Grain  Delivered  from  Elevator, 
see  Weights. 


^•» 


CERTIFICATE  OF  DEPOSIT. 

See  Banks,  IV.  a,  4. 

♦-»-♦ 

CERTIFICATION. 

Of  Check,  see  Checks,  III. 

Of  Service  of  Process,  see  Writ  and  Process, 

83. 
See  also  Cases  Certified. 

Editorial  Notes. 

Parol  certification  of  check.     7:428.* 
Effect  of  certification  of  check.     12:492.* 
On  liability  of  drawer.     16:510. 


CERTIFIED  CHECK. 


Acceptance   of,   as   Notification,   see   Nova- 
tion, 2. 
As  Payment,  see  Payment,  IS. 
Tender  of,  see  Tender,  6. 
See  also  Checks,  IIL 


CERTIFIED  COPY. 


Fee  of  Clerk  for,  see  Clerks,  16. 
As  Evidence,  see  Evidence,  794-799. 


CERTIFIED  QUESTIONS. 

See  Cases  Certified. 


CERTIORARI. 


I.  Jurisdiction;  Use  of  Writ  Generally. 

a.  In  General. 

b.  Existence  of  Other  Remedy. 

IT.  Procedure;    Hearing;    Determination. 
III.  Editorial  Notes. 


To  Complete  Record  on  Appeal,  see  Appeal 

and  Error,  169,  177. 
Who  Entitled  to  Costs  on,  see  Appeal  and 

Error,  1222. 
In  Contempt  Case,  see  Contempt,  72. 
Original  Jurisdiction  of  Appellate  Court,  see 

Coiirts,  II.  a,  2;  VI.  §  9. 
Conclusiveness  of  Judgment  on  Demurrer  to 

Petition  for,  see  Judgment,  103. 
Setting  Aside   Order  on,   see   Motions   and 

Orders,  8. 
Notice  in,  by  Telegram,  see  Telegraphs,  42. 


I.  Jurisdiction;  Use  of  Writ  Generally, 
a.  In  General. 

For  Editorial  Notes,  see  infra,  HI. 

1-2.  A  writ  of  certiorari  does  not  lie  to 
review  a  decision  of  a  question  of  fact  upon 
evidence  heard.  Devlin  v.  Dalton,  171  Mass. 
338,  50  N.  E.  632,  41 :  379 

3.  "Sufficient  cause"  for  a  writ  of  cer- 
tiorari, as  provided  by  Tenn.  Const,  art.  6, 
§  10,  must  be  defined,  either  by  statute  or 
judicial  decision,  and  does  not  exist  for  the 
purpose  of  reviewing  a  decision  on  the  mer- 
its, except  where  the  writ  lies  as  a  substi- 
tute for  an  appeal  or  writ  of  error,  or,  possi- 
bly, instead  of  audita  querela.  Tomlinson 
v.  Board  of  Equalization,  88  Tenn.  1,  12 
S.  W.  414,  417,  6:  207 

4.  The  determination  of  the  board  of  state 
canvassers  and  the  proclamation  of  the 
governor  that  proposed  amendments  to  the 
Constitution  had  been  adopted,  made  in  pur- 
suance of  the  duty  with  which  they  were 
charged  by  the  legislature,  are  subject  to 
review  by  the  supreme  court  by  certiorari 
at  the  instance  of  a  citizen  of  the  state. 
State,  Bott,  Prosecutor,  v.  Wurts  (N.  J. 
Err.  &  App.)  63  N.  J.  L.  289,  43  Atl.  744, 
881,  _  4.5:  251 

5-6.  Certiorari  will  not  be  granted  to  re- 
view the  action  of  a  municipal  corporation 
in  fixing  water  rates  merely  because  the 
schedule  did  not  originate  with  the  execu- 
tive board  as  required  by  charter,  where  it 
is  not  inequitable,  and  has  received  the 
approval  of  the  legislative  department, 
whose  approval  would  have  been  necessary 
had  it  originated  in  the  manner  pointed 
out  by  statute,  and  the  irregularity  may  be 
cured  by  ordinary  means.  State  ex  rel. 
Hallauer  v.  Gosnell,  116  Wis.  606,  93  N.  W. 
542,  61 :  33 

To  review  judicial  decisions  generally. 
Original  Jurisdiction  of  Appellate  Court,  see 

Courts,  277,  278. 
See  also  infra,  24,  40. 

7.  A  writ  of  certiorari  may  be  issued  to 
compel  the  sending  to  the  supreme  court  of 
the  record  of  proceedings  in  a  trial  court, 
which  is  necessary  for  the  information  of 
the  supreme  court  upon  the  question  of  the 
issuance  of  a  writ  of  mandamus  to  compel 
the  trial  court  to  accord  suitors  a  statutory 
right  which  it  has  denied  them.  Stat-e  ex 
rel.  Fourth  Nat.  Bank  v.  Johnson,  103  Wis. 
591,  79  N.  W.  1081,  51:  33 


436 


CEllTlOUAlil,  I.  b. 


In  criminal  case. 

See  also  infra,  27,  41, 

8.  Certiorari  is  the  proper  remedy  where 
a  person  is  denied  a  public  trial  in  a  crim- 
inal case  by  exclusion  of  citizens  while  seats 
for  spectators  were  vacant,  as  those  facts 
could  not  be  presented  by  a  bill  of  excep- 
tions. People  V.  Murray,  89  Mich.  276,  50 
X.  W.  995,  14:  809 
To  review  decision  of  military  tribunals.     . 

9.  Certiorari  will  not  lie  to  review  the  de- 
cision of  a  board  of  military  examiners  re- 
specting the  competency  of  a  person  to  be 
a  militia  officer,  as  the  proceeaings  of  the 
board  are  not  judicial.  Devlin  v.  Dalton, 
171  Mass.  338,  50  N.  E.  632,  41:379 

10.  No  implied  exception  from  the  pro- 
visions of  a  statute  authorizing  the  use  of 
the  common-law  writ  of  certiorari  when 
not  expressly  forbidden  by  statute  can  be 
made  in  case  of  the  decisions  of  state  mili- 
tary tribunals  in  proceedings  for  the  disci- 
pline of  militia  officers  in  time  of  peace,  on 
tlio  ground  that  if  civil  courts  were  per- 
mitted to  interfere  with  the  judgment  of 
military  courts  the  discipline  of  the  militia 
might  be  injured.  People  ex  rel.  Smith  v. 
TToffman,  166  N.  Y.  462,  60  N.  E.  187, 

.54:  597 

11.  A  military  examining  board  provided 
hy  the  Constitution  and  statutes  to  deter- 
mine the  moral  character,  capacity,  or  gen- 
eral fitness  for  office  of  officers  of  the  mili- 
tia, and  having  within  its  jurisdiction  the 
powers  of  a  court-martial,  and  upon  whose 
findings  the  governor  may  dismiss  an  officer 
from  the  service,  is  a  judicial  body  whose 
determination  may  be  reviewed  by  a  com- 
mon-law writ  of  certiorari.  Id. 
Decision  of  board  of  health. 

12.  The  decision  of  a  board  of  health 
condemning  an  alleged  nuisance  is  not  re- 
viewable by  certiorari,  where  the  board  is 
not  obliged  to  hear  any  party,  but  may  act 
upon  its  own  inspection  and  knowledge. 
People  ex  rel.  Copcutt  v.  Yonkers  Bd.  of 
Health,  140  N.  Y.  1,  35  N.  E.  320,  23:  481 
In  highway  matters. 

See  also  infra,  19. 

13.  One  who  is  injured  by  an  order  dis- 
continuinsr  a  portion  of  a  highway  only  in 
the  same  manner  as  the  rest  of  the  com- 
munity, although  in  greater  degree,  has  no 
standing  to  be  heard  individually  on  a  writ 
of  certiorari  to  review  the  order.  Davis  v. 
Hampshire  County,  153  Mass.  218,  26  K  E. 
848,  ^  11:750 

14.  The  owners  of  the  fee  simple  of  land 
in  a  street  may  prosecute  a  certiorari  to  test 
the  legality  of  a  municipal  ordinance  pur- 
porting to  authorize  a  railway  company  to 
place  rails,  poles,  and  wires  on  their  land 
in  the  street.  State  ex  rel.  Kennelly  v. 
Jersey  City  (N.  J.  Sup.)  57  N.  J.  L.  293, 
30  Atl.  531,  26:  281 
Tax  or  assessment  matters;  public  improve- 
ments. 

See  also  infra,  39. 

la.  Writs  of  certiorari  to  quash  proceed- 
ings of  county  commissioners  acting  as 
boards  of  appeal  from  decisions  of  tax  as- 
sessor* nrc  not  usually  issued  for  mere  mis- 


takes in  the  admission  of  evidence,  when 
substantial  justice  appears  to  have  been 
done.  Lowell  v.  Middlesex  County,  152 
Mass.  372,  25  K  E.  469,  9:  356 

16.  A  writ  of  certiorari  cannot  be  de- 
manded by  a  complaining  taxpayer  to  re- 
view on  the  merits  the  action  of  a  board 
of  equalization,  under  Tenn.  act  March  25, 
1887,  which  declares  that  the  action  of  the 
board  shall  be  final.  Tomlinson  v.  Board 
of  Equalization,  88  Tenn.  1,  12  S.  W.  414, 
417,  6:  207 

17.  The  proceedings  of  a  public  improve- 
ment commission  in  awarding  a  contract 
for  street  improvement  are  not  reviewable 
by  certiorari.  People  ex  rel.  North  v. 
Featherstonhaugh,  172  N.  Y.  112,  64  N.  E. 
802,  60:  768 

18.  Certiorari  is  a  proper  remedy  to  try 
the  question  whether  an  assessment  for 
local  improvements  is  invalid  for  any  rea- 
son disclosed  by  the  record,  or  because  of 
the  unconstitutionality  of  the  statute  under 
which  it  is  made.  Weed  v.  Boston,  172 
Mass.  28,  51  N.  E.  204,  42:  642 

b.  Existence  of  Other  Remedy. 

See  also  infra,  43. 

19.  An  action  for  damages,  and  not  a  re- 
view by  certiorari,  is  the  appropriate  remedy 
of  an  owner  of  property  abutting  on  a  high- 
way which  is  validly  closed  by  the  munici- 
pal authorities.  Borghart  v.  Cedar  Rapids, 
126  Iowa,  313,  101  N.  \v.  1120,  68:  306 

20.  A  writ  of  certiorari  is  properly  issued 
upon  the  affidavit  of  the  attorney  general, 
to  review  the  acts  of  the  county  commis- 
sioners of  an  organized  county  in  establish- 
ing voting  precincts  and  appointing  judges 
and  places  for  holding  elections  in  unor- 
ganized counties  attached  for  judicial  pur- 
poses, alleged  to  have  been  in  violation  of 
the  election  laws,  thereby  causing  an  injury 
to  the  rights  and  elective  franchises  of  all 
the  citizens  of  the  state,  as  there  is  no  other 
plain,  speedy,  and  adequate  remedy.  State 
ex  rel.  Dollard  v.  Hughes  County,  1  S.  D. 
292,  46  N.  W.  1127,  10:  588 
Appeal  or  error. 

For  Editorial  Notes,  see  infra.  III. 

21.  A  remedy  by  appeal  or  writ  of  error 
is  not  sufficient  to  bar  certiorari,  unless  it  is 
adequate  to  meet  the  necessities  of  the  case. 
State  ex  rel.  Hamilton  v.  Guinotte,  156 
Mo.  513,  57  S.  W.  281,  50:  787 

22.  An  adequate  remedy  by  appeal  which 
will  bar  certiorari  is  a  remedy  which  is 
equally  beneficial,  speedy,  and  sufficient; 
not  merely  a  remedy  which  at  some  time  in 
the  future  will  bring  about  a  reversal  of 
the  judgment  complained  of,  but  a  remedy 
which  will  promptly  relieve  the  petitioner 
from  the  injurious  effects  of  that  judgment 
and  the  acts  of  the  inferior  court  or 
tribunal.  Id. 

23.  The  appeal  which,  under  Code  Civ. 
Proc.  §  2122,  will  preclude  review  by  writ 
of  certioiari,  means  one  that  can  be 
brought,  argued,  and  heard  as  matter  of 
right,   and  not  a  secret   review  of  a  judg 


CERTIORARI,  II. 


487 


meat,  as  of  that  of  a  military  examining 
board,  the  existence  of  which  cannot  be 
known  to  the  defeated  party  until  after  the 
review  has  been  made  and  tne  judgment  ex- 
ecuted. People  ex  rel.  Smith  v.  Hoffman, 
166  N.  Y.  462,  60  N.  E.  187,  54:  597 

24.  Certiorari  lies  to  review  the  action  of 
a  justice  of  the  peace  without  jurisdiction 
in  issuing  a  search  warrant  not  authorized 
by  statute,  even  if  there  is  also  a  remedy 
by  appeal.  White  v.  Wagar,  185  111.  195, 
57  N.  E.  26,  50:  60 

25.  The  other  remedy  which  will  prevent 
certiorari,  under  Dak.  Lomp.  Laws,  §  5507, 
must  be  one  which,  like  appeal  or  writ  of 
error,  will  enable  the  relator  to  annul  the 
proceeding  complained  of  as  void,  and  does 
not  include  the  mere  right  to  sue  an  officer 
for  acting  under  a  void  order.  Re  Enderlin 
State  Bank,  4  N.  D.  319,  58  N.  W.  514, 

26:  593 

26.  Certiorari  will  not  lie  tb»  quash  a 
judgment  denying  the  right  to  condemn 
property  in  eminent  domain  proceedings,  for 
errors  which  may  be  corrected  by  appeal  or 
writ  of  error,  although  the  latter  remedies 
are  inadequate  because  too  slow.  State  ex 
rel.  Kansas  &  T.  Coal  Ry.  v.  Shelton,  154 
Mo.  670,  55  S.  W.  1008,  50:  798 
In  criminal  case. 

27.  The  quashing  of  the  proceedings  on 
appeal  from  a  conviction  may  be  reviewed 
by  certiorari  as  well  as  by  mandamus.  Grand 
Rapids  V.  Braudy,  105  Mich.  670,  64  N.  W. 
29,  32:  116 


II.  Procedure;  Hearing;  Determination. 

28.  A  writ  of  restitution  will  issue  from 
the  supreme  court  of  North  Dakota  on  en- 
tering judgment  on  certiorari  holding  an 
order  for  the  surrender  of  property  by  the 
sheriff  to  be  void,  as  no  mandate  for  judg- 
ment is  sent  down  in  such  a  case  and  the 
lower  court  is  without  jurisdiction  to  act. 
Re  Enderlin  State  Bank,  4  N.  D.  319,  58 
N.  W.  514,  26:  593 
Time. 

29.  Application  for  certiorari  is  not  pre- 
mature, where  a  sheriff  is  ordered  to  sur- 
render property  to  an  assignee,  merely 
because  the  assignee  is  directed  by  the  order 
to  hold  the  property  until  the  validity  of 
the  assignment  is  de+Tmined  or  until  fur- 
ther order  of  the  court.  Re  Enderlin  State 
Bank.  4  N.  D.  319,  58  N.  W.  514,  26:593 
Parties. 

See  also  supra,  4,  13,  14,  20;  infra,  34-36. 

30.  The  governor  is  not  a  proper  party  to 
a  writ  of  certiorari  to  review  a  determina- 
tion of  a  military  examining  board  as  to 
the  fitness  of  a  militia  officer  for  his  office. 
People  ex  rel.  Smith  v.  Hoffman,  166  N.  Y. 
462,   60  N.  E.   187,  54:  597 

31.  The  plaintiff  in  an  attachment  suit  is 
the  person  beneficially  interested,  within 
Dak.  Comp.  Laws,  §  5508,  for  the  purpose  of 
a  certiorari  to  set  aside  an  order  directing 
the  sheriff  to  surrender  the  attached  prop- 


erty.   Re  Enderlin  State  Bank,  4  N.  D.  319, 
58  N.  W.  514,  26:  593 

Petition. 

32.  Points  made  in  a  petition  for  cer- 
tiorari, not  verified  by  the  answer  of  the 
trial  judge,  present  nothing  for  determina- 
tion either  by  the  superior  or  the  supreme 
court.  Fitts  V.  Atlanta,  121  Ga.  567,  49  S.  E. 
793,  67:803 
Notice. 

33.  A  message  containing  a  proper  notice, 
and  signed  by  plaintiff  in  certiorari,  or  by 
another  as  his  attorney,  sent  by  telegraph 
and  properly  delivered  in  writing,  is  a  suf- 
ficient notice,  within  the  meaning  of  a  law 
requiring  plaintiff  in  certiorari  to  cause 
written  notice  of  the  sanction  of  the  writ, 
and  of  the  time  and  place  of  hearing,  to  be 
given  the  defendant  therein.  Western  U. 
Teleg.  Co.  v.  Bailey,  115  Ga.  725,  42  S.  E. 
89,  61 :  933 
Affidavit. 

See  also  supra,  20;  infra,  38. 

34.  An  affidavit  for  a  writ  of  certiorari 
to  determine  judicial  questions  affecting  the 
sovereignty  of  the  state,  its  franchises  or 
prerogatives,  or  the  liberties  of  its  people, 
made  by  the  attorney  general  in  behalf  of 
the  state,  is  made  by  a  party  "beneficially 
interested."  State  ex  rel.  Dollard  v.  Hughes 
County,  1  S.  D.  292,  46  N.  W.  1127,     10:  588 

35.  The  power  and  authority  to  make  an 
affidavit  for  a  writ  of  certiorari  to  deter« 
mine  judicial  questions  affecting  the  sov- 
ereignty, franchises,  or  prerogatives  of  the 
state,  or  the  liberties  of  its  people,  and  to 
apply  for  and  prosecute  such  writ  for  the 
review  of  questions  involved,  are  inherent  in 
the  office  of  the  attorney  general  upon  prin- 
ciples of  general  law,  and  do  not  depend 
upon  express  statute.  Id- 
Assignment  of  error. 

36.  An  assignment  of  error  on  petition 
for  certiorari,  that  the  trial  court  erred  in 
overruling  objections  to  the  testimony  of 
certain  witnesses  upon  designated  subjects, 
without  setting  forth,  either  literally  or  in 
substance,  the  testimony  to  which  the  ob- 
jections were  made,  is  not  well  taken.  Fitts 
V.  Atlanta,  121  Ga.  567,  49  S.  E.  793, 

67:  803 
Bill  of  exceptions. 

37.  On  certiorari  to  a  district  court  by 
statute,  where  the  amount  in  controversy 
exceeds  $200,  there  should  be  a  bill  of  ex- 
ceptions sealed  by  the  judge.  Larkin  v. 
Hecksher  (N.  J.  Sup.)  51  N.  J.  L.  133,  16 
Atl.  703,  3:  137 
Nature  and  extent  of  review. 

38.  Neither  affidavit  nor  proofs  of  any 
kind  contradicting  the  return  can  be  con- 
sidered in  determining  a  common-law  cer- 
tiorari proceeding,  but  this  must  be  deter- 
mined upon  the  record  made  by  the  petition 
for  the  writ  and  the  return  thereto.  State 
ex  rel.  Ellis  v.  Thome,  112  Wis.  81,  87  N.  W. 
797,  55:  956 

39.  The  court  cannot,  on  certiorari  to  re- 
view an  assessment  upon  property  benefited 
for  the  cost  of  a  street  improvement,  go 
behind  a  finding  that  the  property  assessed 
was  all  that  was  benefited  beyond  the  gen- 


488 


CERTIORARI.  III.— CHAMPERTY  AND  MAINTENANCE,  L 


eral  advantage  to  the  real  estate  in  the  city. 
Sears  v.  Boston  Street  Comrs.  180  Mass. 
274,  62  N.  E.  397,  62:  144 

40.  Certiorari  lies  only  to  ascertain  the 
validity  of  judicial  proceedings  on  their  face, 
and,  when  questioned,  the  jurisdiction  of 
the  court  entertaining  them;  it  cannot  serve 
to  review  a  judgment.  State  ex  rel.  Ma- 
tranga  v.  Marr,  42  La,  Ann.  1089,  8  So.  277, 

10:  248 

41.  On  a  writ  of  certiorari  allowed  with 
the  writ  of  habeas  corpus  to  bring  up  a 
warrant  for  the  execution  of  a  prisoner,  pur- 
porting to  be  issued  by  the  executive  de- 
partment of  the  state  government  under 
authority  of  N.  J.  act  April  16,  1846,  the 
court  will  adjudge  whether  such  warrant  is 
valid.  State,  Clifford,  Prosecutor,  v.  Heller, 
(N.  J.  Sup.)  63  N.  J.  L.  105,  42  Atl.  155, 

57:  312 

42.  An  examination  of  the  evidence  may 
be  made  on  certiorari  for  the  purpose  of  de- 
termining the  claim  that  the  court  exceeded 
its  power.  McClatchy  v.  Sacramento  Coun- 
ty Super.  Ct.  119  Cal.  413,  51  Pac.  696, 

39:  691 

43.  A  writ  of  certiorari  issued  under  Dak. 
Comp.  Laws,  §  5507,  will  bring  before  the 
court  for  review  the  proceedings  of  county 
commissioners  in  respect  to  acts  complained 
of  as  in  excess  of  the  jurisdiction  of  such 
board,  \vhere  there  is,  in  the  judgment  of 
the  court,  no  other,  plain,  speedy,  and  ade- 
quate remedy.  State  ex  rel.  Dollard  v. 
Hughes  Countv.  1  S.  D.  292,  46  X.  W. 
1127,  10:  588 

III.  Editorial  Notes. 

In  exercise  of  superintending  control  over 

inferior  courts.     51:33. 
To  review  excessive  sentence.     45:158. 
Use  of  writ;  to  review  habeas  corpus.     10 

248.* 
Form  of  judgment  on  certiorari  bond.     62 

446. 
Penaltv  as  limit  of  liability  on  bond.     55 

388. 
Exceptions  to  the  rule  that  certiorari  will 
not  lie  where  there  is  an 
appeal.     50 :  787. 
Generally.     50:787. 

When  exigency  of  the  case  calls  for  the 
remedy.  *  50:789. 
When    remedy    by    appeal    is    un- 
doubted.    50:789. 
Where  the  remedies   are  cumulat- 
ive.    50:793. 
Want  of  jurisdiction.     ,50:794. 
Where  appeal  is  a  trial  de  novo. 
50:795. 
Constitutional  grants  and  legislative  en- 
croachments.    50:798. 
From  United  States  Supreme  Court  to 
circuit    court    of    appeals. 
50:801. 

♦-»♦ 


CHAIN  GANG. 
See  Criminal  Law,  192,  225,  226. 
♦-•-♦ 

CHALLENGE. 

Of  Voter,  see  Elections,  78-83. 
To  Jurors,  see  Jury,  n. 


CHAMBER  OF  COMMERCE. 

Editorial  Notes. 

Review   of   decisions   of,  against   members. 
49:358,  361,  364. 


CHAMPERTY  AND  MAINTENANCE. 

I.  In  General, 
n.  Agreements     between     Attorney     and 

Client, 
m.  Purchase  of  Realty  in  Third  Person's 

Possession. 
rv.  Editorial  Notes. 

Assignment  of  Bare  Right  to  File  Bill  in 

Equity  as,  see  Assignment,  3. 
Necessity  of  Pleading,  see  Pleading,  489. 


CESS  POOLS. 

Editorial  Notes. 

Liability  of  landlord  to  third  persons  as  to. 
26:201. 


I.  In  General, 

1.  A  champertous  contract  being  void,  the 
right  of  recovery  on  an  existing  indebted- 
ness in  relation  to,  or  as  security  for,  which 
the  contract  was  entered  into,  cannot  be  af- 
fected thereby,  Boone  v,  Clark,  129  111,  466, 
21  N.  E.  850,  5:276 

2.  Champerty  is  illegal,  independent  of 
statute,  and  the  English  statutes  of  Edw.  I. 
and  m,  and  32  Hen.  Vm.  on  this  subject 
were  merely  declaratory  of  the  common  law. 
Johnson  v.  Van  Wyck,  4  App.  D.  C,  294, 

41 :  520 

3.  The  fact  that  a  champertous  trust  is  in 
part  for  the  benefit  of  the  heirs  of  one  who 
conveyed  land  in  consideration  of  a  share 
of  the  prospective  recovery  in  champertous 
litigation  will  not  make  the  trustee's  title 
valid  for  any  part  of  the  property.         Id, 

4.  A  fair  bona  fide  agreement  by  a  layman 
to  supply  funds  to  carry  on  a  pending  suit 
in  consideration  of  a  share  in  the  property 
if  recovered  is  not  per  se  void,  either  on  the 
ground  of  champertv  or  of  public  policy. 
Brown  v.  Bigne,  21  Or.  260,  28  Pac.  11, 

14:  745 

5.  While  it  is  permissible  for  a  near  kins- 
man of  a  poor  suitor,  out  of  charity,  to 
assist  him  in  the  maintenance  of  his  suit, 
such  kinsman  cannot  do  so  as  a  speculative 
venture  based  upon  a  contract  to  share  in 
the  proceeds  in  case  the  suitor  should  re- 
cover.   Re  Evans,  22  Utah,  366,  62  Pac.  913, 

53:  952 


CHAMPERTY  AND  MAINTENANCE,  II. 


488 


6.  It  is  not  maintenance  for  several  per- 
sons who  have  been  induced  to  purchase 
stock  from  defendants  by  the  same  alleged 
false  and  fraudulent  representations  and 
conduct,  to  contribute  to  defray  the  ex- 
penses of  a  test  case  to  determine  defend- 
ants' liability  to  refund  the  money  paid  for 
the  stock,  since  they  have  a  com.mon  interest 
in  that  question.  Davies  v.  Stowell,  78  Wis. 
334,  47  N.  W.  370,  10:  190 

7.  The  purchase  of  railroad  bonds  from 
litigant  bondholders,  pending  a  suit  involv- 
ing the  fate  of  the  railroad,  in  pursuance  of 
a  plan  to  obtain  a  lease  of  the  road  to  the 
purchaser  and  his  associates,  who  needed  it 
to  form  a  connection  with  a  road  already 
owned  by  them;  and  an  agreement  by  the 
purchaser  to  pay  all  expenses  of  the  pending 
litigation,  although  the  bonds  were  not  to 
be  delivered  until  its  termination, — are  not 
void  for  champerty  because  of  the  purchas- 
er's interest  in  the  result  of  the 'suit.  Gil- 
man  V.  Jones,  87  Ala.  691,  7  So.  48,  5  So. 
785,  4:  113 


n.  Agreements  between  Attorney  and  Client. 

As  Ground  for  Disbarment,  see  Attorneys, 

19. 
Validity  of  Contract  with  Attorney  as  to 

Compensation,  see  also  Contracts,  413- 

418. 
Right  to  Recover  on  Champertous  Contract, 

see  Contracts,  632. 
For  Editorial  Notes,  see  infra,  IV. 

8.  The  purchase  by  an  attorney  from  his 
client  of  the  subject-matter  of  litigation,  or 
any  speculative  bargain  in  relation  thereto, 
is  presumptively  invalid;  and,  to  uphold  the 
transaction  as  against  the  client,  the  attor- 
ney must  prove  affirmatively  by  evidence 
its  perfect  fairness,  adequacy,  and  equity. 
No  presumption  of  innocence  or  improba- 
bility of  wrongdoing  can  be  considered  in 
his  favor.  Burnham  v.  Heselton,  82  Me. 
496,  20  Atl.  80,  9:90 

9.  The  rule  that  Champerty  in  an  inci- 
dental contract  will  not  defeat  title  does  not 
apply  so  as  to  allow  a  recovery  of  land  by 
a  trustee  whose  title  is  derived  through 
champertous  conveyances  which  have  a 
merely  nominal  consideration  aside  from 
champertous  agreements  to  prosecute  suits 
for  the  property  at  the  expense  of  the  vari- 
ous grantees.  Johnson  v.  Van  Wyck,  4  App. 
D.  C.  294,  41 :  520 

10.  An  agreement  between  attorney  and 
client  about  to  begin  suit  upon  a  sheriff's 
bond  for  his  failure  to  pay  over  money  as 
directed  by  a  judgment,  that  the  attorney 
shall  have  the  stetutory  penalty  for  the 
default  as  his  compensation  after  the  client 
receives  his  claim  in  full,  is  not  void  for 
champerty,  and  will  not  be  set  aside  merely 
because  it  did  not  bring  the  client  the  antici- 
pated results.  Davis  v.  Webber,  66  Ark. 
190,  49  S.  W.  822,  45:  196 
For  contingent  fee. 

Contract     for.     Generally,     see     Attornevs, 
65-69. 


11.  An  agreement  by  an  attorney  to 
prosecute  a  suit  entirely  at  his  own  ex- 
pense, in  consideration  of  one  half  of  the 
recovery,  is  champertous.  Johnson  v.  Van 
Wyck,  4  App.  D.  C.  294,  ,  41 :  520 

12.  The  law  of  champerty  does  not  apply 
to  a  contract  by  an  attorney  at  law  for  the 
prosecution  of  a  claim  before  the  Court  of 
Commissioners  of  Alabama  Claims,  for  » 
contingent  fee  payable  out  of  the  award. 
Manning  v.  Sprague,  148  Mass.  18,  18  N.  E. 
673,  1 :  516 

13.  The  common-law  rule  as  to  champer- 
tous agreements  between  attorneys  and  cli- 
ents is  modified  by  Utah  Comp.  Laws  1888, 
§  3683,  providing  that  the  measure  and 
mode  of  compensation  of  attorneys  and 
counselors  at  law  shall  be  left  to  the  agree- 
ment, express  or  implied,  of  the  parties; 
and  under  that  section  it  is  competent  for 
the  attorney  and  client  to  agree  that  the 
former's  compensation  shall  be  contingent 
upon  success,  and  payable,  by  percentage  or 
otherwise,  out  of  the  proceeds  of  the  litiga- 
tion; but  it  is  not  competent  to  agree  that 
the  attorney  shall  pay  the  advance  fees  and 
costs  of  the  suit  thereafter  to  be  com- 
menced. Croco  v.  Oregon  Short-Line  R.  Co. 
18  Utah,  311,  54  Pac.  985,  44:  285 
For  payment  of  costs  and  expenses  by  at- 
torney. 

14.  A  stipulation,  in  a  contract  between 
attorneys  and  client,  for  the  payment  by 
the  attorneys  of  the  costs  of  the  litigation, 
is  against  public  policy,  champertous,  il- 
legal, and  void.  Re  Evans,  22  Utah,  366, 
62  Pac.  913,  53:  952 

15.  An  agreement  by  which  an  attorney  is 
to  bear  the  costs  and  expenses  of  litigation, 
in  consideration  of  an  interest  in  the  re- 
covery, is  cha.mpertous  and  void.  Geer  v. 
Frank,  179  111.  570,  53  N.  E.  965.        45:  110 

16.  An  agreement  by  an  attorney  to  ad- 
vance the  costs  and  expenses  of  collecting  a 
judgment  which  he  has  obtained  for  a  client, 
of  which  one  half  only  shall  be  repaid  in 
case  of  failure  to  make  the  collection,  in 
consideration  of  which  he  is  to  have  one  half 
the  net  proceeds  of  the  judgment  in  case  of 
success,  is  not  unlawful  on  the  ground  of 
champerty.  Reece  v.  Kvle,  49  Ohio  St. 
476,  31  N.  E.  747,  '  16:  723 

17.  A  contract  giving  each  of  two  attor- 
neys an  interest  in  the  subject-matter  of 
litigation,  in  consideration  of  the  legal  serv- 
ices to  be  performed  by  each  of  them,  and 
also  of  the  payment  of  the  cost  and  ex- 
penses of  litigation  by  one  of  them,  is  void 
as  to  both  because  of  the  illegal  provision 
as  to  the  payment  of  costs  and  expenses  by 
one  of  them.  Geer  v.  Frank,  179  111.  570, 
53  N.  E.  965,  45:  110 
Champerty  as  defense. 

For  Editorial  Notes,  see  infra,  IV. 

18.  Defendant  cannot  avail  himself,  as  a 
defense,  of  the  champertous  character  of  a 
contract  between  tbe  plaintiff  and  his  at- 
torney with  reference  to  the  prosecution  of 
the  suit.  Croco  v.  Oregon  Short-Line  R.  Co. 
18  Utah,  311,  54  Pac.  985,  44:  28.5 

19.  The  champertous  agreement  between 
a  plaintiff  and  his  attorney  for  the  prosecu- 


440 


CHAMPERTY  AND  MAINTENANCE,  III— CHARITIES. 


tion  of  a  suit  constitutes  no  defense  to  the 
suit.  Pennsylvania  Co.  v.  Lombardo,  49 
Ohio  St.  1,  29  N.  E.  673,  14:  785 


III.  Purchase   of  Realty  in   Third  Person's 
Possession. 

Champertous  Deed  as  Cloud  on  Title,   see 

Cloud  on  Title,  8. 
For  Editorial  Notes,  see  infra,  IV. 

20.  A  conveyance  by  the  administrator  of 
land,  of  which  one  holding  a  bond  for  title 
from  his  intestate  is  in  possession,  is  void 
as  being  a  conveyance  of  land  held  ad- 
versely. Heard  v.  Phillips,  101  Ga..  691, 
31  S.  E.  216,  44:  369 

21.  A  deed  of  a  tract  of  land  by  one  in 
possession  of  only  a  part  of  it,  at  a  time 
when  third  persons  were  in  possession  of 
the  greater  portion  claiming  under  a  supe- 
rior title,  is  not  absolutely  void  under  the 
champerty  statute,  but  only  voidable  at  the 
instance  of  the  parties  in  adverse  possession. 
Fort  Jefferson  Improv.  Co.  v.  Dupoyster,  108 
Ky.  792,  51  S.  W.  810,  48:  537 

22.  A  deed  to  one  who  purchases  when  a 
portion  of  the  tract  is  in  adverse  possession 
of  third  persons  cannot  be  attacked  by  his 
vendee  after  the  former  has  purchased  in 
the  outstanding  title,  to  avoid  taking  the 
title  tendered  under  the  contract.  Id. 


IV.  Editorial  Notes. 

Modification    of    common-law    doctrine.     4: 
113.* 

Collateral  champerty  as  a  defense.     14:785. 

Contract  between  attorney  and  client.     1: 
516.* 

Prohibition  of  purchase  of  choses  in  action 
by  attorney.     9:91.* 

Assignment  of  claim  to  attorney.     9:92.* 

Right  of  attorney  to  purchase  adverse  title. 
9:92.* 

Champertous  contracts  of  laymen.     14:745. 
For  prosecution  of  suits.     14:745. 
For  defense  of  suits.     14:  746. 
Contemplated  litigation  as  an  element. 
14:746. 

EflFect  of  interest;  relationship.     14:747. 

Maintenance  defined;  assisting  litigant,  con- 
tract for,  void.     10 :  190.* 


CHANGE. 

On  Payment  of  Street  Car  Fare,  see  Car- 
riers, 644-649. 

Of  Grade,  see  Eminent  Domain,  378-389; 
Highways,  198-203:  Injunction,  383- 
385. 

Of  Venue,  see  Venue,  II. 


CHAPEL. 

Charitable  Gift  for  Erection  of,  see  Chari- 
ties. 127. 


CHARACTER. 

Good  Character  as  Justification  for  Carrying 
Weapon,  see  Constitutional  Law,  613. 

Burden  of  Proof  as  to,  see  Evidence,  761. 

Presumption  from  Failure  to  put  in  Issue, 
see  Evidence,  399. 

Proof  of,  see  Evidence,  XI.  c. 

Libelous  Charges  Affecting,  see  Libel  and 
Slander,  II.  b. 

Instruction  as  to,  see  Trial,  867. 

Editorial  Notes. 

Presiunption  of  good  character  of  accused. 
20:609. 


CHARGES. 

For  Freight,  see  Carriers,  II.  b,  6. 
On  Realty,  see  Wills,  m.'  k. 


CHARITABLE  INSTITUTIONS. 

Forgery  of  Registered  Securities  by  Treas- 
urer of,  see  Corporations,  238. 
Commitment  of  Infants  to,  see  Infants,  42. 
See  also  Charities. 

1.  The  grant  of  power  to  a  public  corpora- 
tion created  by  Congress  to  administer  a 
public  charity,  to  sue  and  be  sued  at  law 
and  in  equity,  applies  to  such  matters  only 
as  are  within  the  scope  of  its  other  corporate 
powers,  and  does  not  authorize  such  cor- 
poration to  be  sued  for  tort.  Overholaer 
V.  National  Home  for  Disabled  Volunteer 
Soldiers,  68  Ohio  St.  236,  67  N.  E.  487, 

62:  936 

2.  The  National  Home  for  Disabled  Volun- 
teer Soldiers  is  a  corporation  created  by 
Congress  for  the  purpose  of  performing  an 
appropriate  and  constitutional  function  of 
the  Federal  government,  and  for  national 
purposes  only;  and  as  such  it  is  a  part  of 
the  government  of  the  United  Stat«s,  and 
cannot  be  sued  in  an  action  sounding  in  tort. 

Id. 


CHARITIES. 


1.  Nature  and  Validity. 

a.  In  General. 

b.  What  are  Charities. 

c.  Conditions;    Capacity  of  Trustees 

or  Beneficiaries. 

d.  Definiteness;  Discretion  of  Trustee, 
n.  Enforcement;   Control;   Forfeiture. 

a.  In  General. 

b.  Cy  Pres  Doctrine. 

c.  Liability  for  Damages, 
m.  Editorial  Notes. 

Charitable  Institutions,  see  Charitable  In* 
stitutions. 

Impairment  of  Contract  in  Gift  to,  see  Con- 
stitutional  Law,   1133.   1134. 


CHARITIES,  I,  a,  b. 


441 


Implied  Contract  in  liift  to,  see  Contracts, 
5,  6. 

Deed  for,  see  Deeds,  50. 

Right  to  Take  Money  under  Power  of  Emi- 
nent Domain,  see  Eminent  Domain,  66. 

Judicial  Notice  of,  see  Evidence,  151. 

Parol  Proof  of  Charitable  Trust,  see  Evi- 
dence, 1208. 

Guardian's  Right  to  Minor's  Share  in  Fire- 
men's Fund,  see  Guardian  and  Ward,  9. 

As  to  Gifts  for  Masses,  see  Masses. 

Parties  in  Action  as  to,  see  Parties,  133. 

Rule  of  Perpetuities  as  to,  see  Perpetuities, 
IV.;  V. 

Liability  to  Assessments  for  Public  Im- 
provements, see  Public  Improvements, 
9/-101. 

Use  of  Public  Funds  for,  see  Public  Moneys, 
29-33,  48. 

As  to  State  University,  see  State  Universi- 
ties. 

Works  of,  on  Sunday,  see  Sunday,'' m.  b. 

Tax  on  Gifts  to,  see  Taxes,  610-613. 

Exemption  of,  from  Taxation,  see  Taxes,  I. 
f,  3;  VI.  §  8. 

Creation  of  Trust  in  Favor  of  Religious  So- 
ciety, see  Trusts,  11-14. 

liability  of  Trust  Funds  for  Torta  of  Trus- 
tees, see  Trusts,  200. 

Effect  of  Termination  of  Corporate  Exist- 
ence after  Execution  of  Will,  see  Wills, 
146. 

Lapse  of  Charitable  Bequest,  see  Wills,  441. 

Limitation  on  Amount  of  Charitable  Be- 
quests, see  Wills,  III.  d. 


I.  Nature  and  Validity, 
a.  In  General. 

Validating  Indefinite   Trust,   see   Constitu- 
tional Law,  136. 

1-2,  The  common-law  system  of  trusts 
for  charitable  uses  did  not  originate  with, 
nor  is  it  dependent  upon,  the  statute  of 
43  Eliz.  chap.  4.  Harrington  v.  Pier,  105 
Wis.  485,  82  N.  W.  345,  50:  307 

3.  The  statute  of  charitable  uses  (43 
Eliz.),  while  not  in  force  as  a  statute  in 
Pennsylvania,  is  embodied,  as  to  its  prin- 
ciples, in  the  common  law  of  that  state. 
Philaaelphia  Fire  Ins.  Patrol  v.  Boyd,  120 
Pa.  624,  15  Atl.  553,  1 :  417 

4.  The  statute  of  43  Elizabeth,  whether  it 
was  ever  in  force  in  Virginia,  or  not,  is  of 
no  effect  in  determining  the  validity  of  a 
gift  for  charitable  uses.  Presbyterian  Gen- 
eral Assembly  v.  Guthrie,  86  Va.  125,  10  S. 
E.  318,  6:  321 

5.  A  trust  for  a  particular  and  valid 
charitable  purpose,  as  distinguished  from  a 
bequest  in  trust  for  charity  generally,  was 
sustained  in  chancery,  before  the  statute  of 
Elizabeth,  solely  by  the  judicial  power  of 
the  court,  and  to  that  extent  such  statute 
was  merely  confirmatory  of  the  common 
law;  and  to  the  same  extent  such  statute 
was  adopted  as  a  part  of  the  common  law  of 
this    country,    and    prevails    in    Wisconsin. 


Harrington  v.  Pier,  105  Wis.  485,  82  N.  W. 
345,  50:  307 

6.  Charitable  uses  are  not  exempt  from 
the  provisions  of  1  N,  Y.  Rev.  Stat.  p.  727, 
§  45,  abolishing  uses  and  trusts  except  such 
as  are  authorized  thereby.  People  v.  Pow- 
ers, 147  N.  Y.  104,  41  N.  E.  432,  35:  502 

7.  The  statute  of  charitable  uses  of  43 
Eliz.  is  not  abrogated  in  Illinois  by  111.  Rev. 
Stat.  chap.  23,  providing  for  state  charitable 
institutions.  Crerar  v.  Williams,  145  111. 
625,  34  N.  E.  467,  21:454 

8.  The  English  law  of  charitable  uses 
never  became  a  part  of  the  law  of  New 
York,  and  the  validity  of  trusts  for  objects 
which  were  denominated  "charitable"  under 
the  English  law  are  in  that  state  governed 
by  the  same  rules  by  which  the  validity  of 
trusts  for  other  purposes  is  determined. 
Cottman  v.  Grace,  112  N.  Y.  299,  19  N.  E. 
839,  3:  145 

9.  Charities  for  religious  purposes  are  not 
against  the  policy  of  the  law  in  Virginia. 
Presbyterian  General  Assembly  v.  Guthrie, 
86  Va.  125,  10  S.  E.  318,  6:  321 
Partial  invalidity. 

10.  The  whole  trust  fails  where  an  un- 
ascertainable  portion  thereof  is  given  on  a 
void  trust,  although  the  remainder  is  given 
on  a  trust  that  is  valid.  Kelly  v.  Nichols, 
18  R.  I.  62,  25  Atl.  840,  19:  413 

11.  A  direction  in  a  will  "to  use  a  part" 
of  the  estate  for  reprinting  and  circulating 
certain  religious  books,  as  the  means  in  the 
hands  of  the  trustees  "shall  increase  and 
allow  it,"  must  fail  whore  the  other  trusts 
created  by  the  will  are  invalid.  The  whole 
estate  cannot  be  applied  to  this  purpose, 
and  the  amount  applicable  thereto  is  un- 
ascertainable.  Id. 

b.  What  are  Charities. 

As  to  Bequest  for  Masses,  see  Masses. 

See  also  mfra,  131,  133,  138. 

For  Editorial  Notes,  see  infra.  III.  §  1. 

12.  Any  work  within  the  spirit,  in  its 
broadest  sense,  of  the  statute  of  43  Eliz. 
chap.  4,  including  whatever  promotes  in  a 
legitimate  way  the  comfort,  improvement, 
or  happiness  of  an  indefinite  number  of  per- 
sons from  among  the  people  as  a  whole,  or 
a  designated  class  thereof,  is  the  proper 
subject  for  a  trust  for  a  charitable  use. 
Harrington  v.  Pier,  106  Wis.  485,  82  N.  W. 
345,  50:  307 

13.  The  test  of  a  legal  public  charity  is, 
by  right,  to  be  obtained  in  the  motives  of 
the  donors  of  the  funds.  Philadelphia  Fire 
Ins.  Patrol  v.  Boyd,  120  Pa.  624,  15  Atl, 
553,  1:417 

14.  A  charitable  trust  in  the  legal  sense 
is  one  which  originates  from  a  gift,  and 
which  limits  its  property  to  any  public  use 
to  which  it  is  lawful  to  devote  property  for- 
ever. Webster  v.  Wiggin,  19  R.  I.  73,  31 
Atl.  824,  28  r  510 

15.  The  immediate  and  unconditional  de- 
votion of  a  fund  to  charity,  and  not  the 
time  or  manner  of  the  administration  or  dis- 


442 


CHARITIES.  I.  b. 


tribution   of   the   fund,    is   the   test   of   the 
validity  of  its  creation.  Id. 

16.  A  charitable  trust  is  one  of  which  the 
courts  will  take  cognizance  and  assume  con- 
trol for  the  purpose  of  preventing  its  abuse, 
perversion,  or  destruction.  Mannix  v.  Pur- 
cell,  46  Ohio  St.  102,  19  N.  E.  572,  2:  753 
Gifts  for  temperance  work. 

17.  The  beauest  of  three  fourths  of  the 
net  estate  to  trustees  to  expend  in  temper- 
ance work  in  a  certain  city  is  a  valid  be- 
quest for  a  charitable  use.  Harrington  v. 
Pier,  105  Wis.  485,  82  X.  W.  345,  50:  307 
For  tenements. 

18.  A  trust  for  the  erection  of  convenient 
and  healthful  tenements  for  the  laboring 
classes,  and  their  maintenance  in  proper  re- 
pair and  in  a  clean  and  tidy  condition,  pro- 
viding that  no  intemperate,  disorderly,  or 
filthy  person  shall  be  allowed  to  occupy 
them,  although  they  are  to  be  let  to  labor- 
ers for  rent,  and  not  gratuitously  furnished 
to  them, — creates  a  charity.  Webster  v. 
Wiggin,  19  R.  I.  73,  31  Atl.  824,  28:  510 
For  insurance  patrol. 

19.  The  fire  insurance  patrol  of  Philadel- 
phia— a  corporation  supported  by  the  volun- 
tary contributions  of  insurance  companies, 
whose  object  is  the  saving  of  life  and  prop- 
erty in  or  near  burning  buildings,  and  which 
has  no  capital  and  makes  no  dividends — is  a 
public  charitv.  Philadelphia  Fire  Ins.  Pa- 
trol V.  Boyd,  120  Pa.  624,  15  Atl.  553,  1 :  417 
For  hospitality. 

20.  A  trust  to  keep  testator's  house  open 
for  the  entertainment  of  ministers  and  oth- 
ers of  his  faith  "traveling  in  the  service  of 
truth,"  being  merely  for  hospitality,  al- 
though the  purpose  may  have  been  to  aid 
in  spreading  the  truth,  is  not  charitable. 
Kelly  V.  Nichols,  18  R.  I.  62,  25  Atl.  840, 

19:413 

21.  The  custom  of  a  society  of  Friends  to 
pay  from  its  treasury  for  the  traveling  ex- 
penses and  entertainment  of  members  does 
not  make  a  gift  by  will,  by  a  member  of 
the  society,  in  trust  to  keep  his  house  open 
for  the  reception  and  entertainment  of  all 
of  his  faith  "traveling  to  meetings  or  other- 
wise in  the  service  of  truth,"  a  religious  or 
charitable  trust,  or  anything  more  than  a 
gift  for  hospitality,  which  cannot  be  sus- 
tained as  a  charitable  trust.  Id. 
For  art. 

22.  A  bequest  is  a  lawful  charity  in  every 
respect,  where  it  is  given  for  an  art  insti- 
tute when  established,  and  the  income  is  to 
be  given,  in  the  mean  time,  in  annual 
prizes  for  works  of  art.  Almy  v.  Jones,  17 
R.  I.  265,  21  Atl.  616,  12:  414 
For  library. 

See  also  Towns,  13. 

23.  A  gift  for  a  free  public  library  in  a 
great  city  is  charitable.  Crerar  v.  Wil- 
liams, 145  111.  625,  34  N.  E.  467,  21:  454 
For  education  or  publications. 

For  Editorial  Notes,  see  infra,  III.  §  1. 

24.  The  education  and  preferment  of  or- 
phans, being  one  of  the  subjects  mentioned 
by  Stat.  43  Eliz.  chap.  4,  is  to  be  regarded 
as  a  public  charity  in  jurisdictions  where 


that  statute  is  in  force.     Clayton  v.  Hallett, 
30  Colo.  231,  70  Pac.  429,  59:407 

25.  A  bequest  to  a  school  township  for 
the  support  of  common  schools  is  a  public 
and  charitable  use.  Skinner  v.  Harrison 
Twp.  116  Ind.  139,  18  N.  E.  529,  2:  137 

26.  A  trust  for  the  purpose  of  educating 
boys  and  girls,  but  not  confined  to  poor  ones, 
is  not  invalid  under  a  constitutional  provi- 
sion limiting  the  creation  of  perpetuities  to 
eleemosynary  purposes.  People  ex  rel.  El- 
lert  V.  Cogswell,  113  Cal.  129,  45  Pac.  270. 

35:269 

27.  A  gift  to  promote  the  eflBciency  of 
public  schools,  or,  in  the  alternative,  to  es- 
tablish schools  for  the  education  of  children 
residing  in  tenements,  is  charitable.  Web- 
ster V.  Wiggin,  19  R.  I.  73,  31  Atl.  824, 

28:  510 

28.  A  bequest  for  the  maintenance  of  free 
public  scnools  is  not  pi-evented  from  being 
a  public  charity  by  the  fact  that  the  state 
has,  for  all  practical  purposes,  provided  for 
the  maintenance  of  free  public  schools  for 
all  children  of  school  age  within  the  same 
territory.  Re  John's  Estate,  30  Or.  494, 
47  Pac.  341,  36:  242 

29.  An  institution  which  is  educational  to 
some  extent  may  be  also  a  charitable  insti- 
tution within  the  meaning  and  intent  of  the 
Constitution  and  statutes  respecting  chari- 
table institutions.  People  ex  rel.  New  York 
Inst,  for  Blind  v.  Fitch,  154  N.  Y.  14,  47 
N.  E.  983,  38:  591 

30.  The  fact  that  an  institution  is  subject 
to  the  visitation  of  the  superintendent  of 
public  instruction  is  not  conclusive  against 
regarding  it  as  a  charitable  institution  sub- 
ject to  the  visitation  of  a  board  of  char- 
ities. Id. 

31.  An  incorporated  institution  for  the 
blind,  which  has  been  supported  and  its 
property  purchased  and  maintained  mainly 
by  appropriations  from  the  state,  although 
it  may  be  only  an  educational  institution 
so  far  as  it  educates  paying  pupils,  is  to  be 
regarded,  so  far  as  it  clothes,  educates,  and 
maintains  indigent  pupils  at  public  expense 
or  by  donations  from  individuals,  as  a  char- 
itable institution  subject  to  the  visitation 
and  the  rules  of  the  board  of  charities,  under 
N.  Y.  Laws  1895,  chap.  771,  and  also  to  the 
restriction  under  N.  Y.  Const,  art.  8,  §  14, 
against  payments  by  municipalities  for  any 
inmate  not  received  and  retaiiied  pursuant 
to  rules  established  by  the  state  board  of 
charities.  Id. 

32.  A  bequest  or  devise  to  educate  the 
public  in  any  branch  of  science  by  the  dis- 
semination of  the  works  of  a  given  author 
is  a  good  charitable  use,  provided  such 
works  contain  nothing  hostile  to  religion  or 
law.  George  v.  Braddock  (N.  J.  Err,  & 
App.)  45  N.  J.  Eq.  767,  18  Atl.  881,       6:  511 

33.  A  testamentary  disposition  for  the 
purpose  of  circulating  the  works  of  Henry 
George  upon  the  land  question,  etc.,  is  a 
valid  charitable  use.  Id. 

34.  A  trust  for  the  publication  of  religious 
books  of  a  specified  character  is  charitable. 
Kelly  V.  Nichols,  18  R.  I.  62,  25  Atl.  840, 

19:413 


CHARITIES,   I.  c. 


443 


Por  care  of  children  or  old  persons. 

35.  A  legacy  to  the  commune  of  Carouge, 
canton  of  Geneva,  Switzerland,  which  is 
directed  to  be  placed  at  interest,  and  with 
the  interest  to  endow  annually  two  poor 
girls  and  to  give  a  pension  to  ten  old  per- 
sons of  the  two  sexes,  is  sustainable  as  a 
legacy  to  pious  and  charitable  uses.  Suc- 
cession of  Meunier,  52  La.  Ann.  79,  26  So. 
776,  48:  77 
For  poor. 

See  also  infra,  92. 

36.  A  gift  is  charitable  where  a  fund  is  to 
be  permanently  maintained  and  its  income 
devoted  to  the  relief  of  the  poor  and  \m- 
fortunate,  although  its  distribution  is 
private  and  to  private  persons.  BuUard  v. 
Chandler,  149  Mass.  532,  21  N.  E.  951,  5:  104 

37.  The  word  "others,"  in  a  will  direct- 
ing charitable  gifts  to  the  "poor  and  un- 
fortunate whom  we  have  aided  in  past 
years,  and  also  to  others,"  meaiJs  others 
than  those  aided,  and  not  others  than  poor 
and  unfortunate.  Id. 
For  church. 

38.  A  bequest  in  trust  for  the  erection  of 
a  church  and  of  a  parsonage  is  a  charitable 
gift.  School  Land  Comrs.  v.  Wadhams,  20 
Or.  274,  25  Pac.  720,  11:210 

39.  A  gift  for  the  benefit  of  poor  churches 
of  a  city  and  vicinity  is  charitable  within 
the  exception  to  the  rule  of  law  against  per- 
petuities. McAlister  v.  Burgess,  161  Mass. 
269,  37  N.  E.  173,  24:  158 

40.  A  gift  to  the  rector,  church  wardens, 
and  vestrymen  of  an  unincorporated  reli- 
gious society,  in  trust  to  pay  the  salary  of 
the  rectors  of  the  parish  forever,  or  for 
church  purposes  only,  is  for  a  charitable  use. 
Alden  v.  St.  Peter's  Parish,  158  HI.  631,  42 
N.  E.  392,  30:  232 

41.  A  bequest  in  trust  to  purchase  a  lot 
and  build  a  chapel  to  be  used  forever  for 
public  worship  under  the  auspices  of  the  Ro- 
man Catholic  church  is  for  a  public  charit- 
able use.  Teele  v.  Bishop  of  Derry,  168 
Mass.  341,  47  N.  E.  422,  38:  629 
For  graves. 

42.  A  trust  to  keep  in  repair  the  graves  of 
a  testator  and  his  sisters  does  not  constitute 
a  charitable  use.  Kelly  v.  Nichols,  18  R.  I. 
62,  25  Atl.  840,  19:413 

43.  A  bequest,  the  income  of  which  is  to 
be  used  to  ornament  and  keep  in  repair  the 
burial  lot  of  the  testator,  is  void  because  it 
is  a  gift  in  perpetuity  for  a  private  trust, 
and  not  for  a  charitable  trust.  Sherman 
V.  Baker,  20  R.  I.  446,  40  AtL  11,        40:  717 

c.  Conditions;     Capacity     of     Trustees     or 
Beneficiaries. 

For  Editorial  Notes,  see  infra.  III.  §  3. 

Conditions. 

See  also  infra,  54,  63. 

44.  A  direction  that  a  school  or  schools 
should  never  be  used  to  inculcate  the  doc- 
trines of  any  religious  sect  or  denomina- 
tion, one  more  than  another,  may  be  proper- 
ly made  in  a  will  creating  a  charitable  trust 
to  maintain  such  school.  Re  John's  Estate, 
30  Or.  494,  47  Pac.  341,  36:  242 


Capacity  generally. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

318. 
Of  State  University,  see  State  Universities, 

4. 
Fee  Passing  to  Trustee,  see  Trusts,  125. 

45.  A  school  district  in  Indiana  is  capable 
of  taking  a  devise  in  trust  for  the  support 
of  common  schools  therein.  Skinner  v.  Har- 
rison Twp.  116  Ind.  139,  18  N.  E.  529,  2:  137 

46.  The  board  of  water  commissioners  of 
a  city  are  competent  to  receive  a  gift  by 
will  of  a  fund,  the  income  of  which  is  to  be 
used  for  ornamenting  the  grounds  where  the 
waterworks  are  established,  and  for  main- 
taining there  a  reference  library  chiefly  of 
books  of  practical  utility  relating  to  the 
progress  of  science,  the  arts,  and  of  events 
and  discoveries.  Penny  v.  Croul,  76  Mich. 
471,  43  N.  W.  649,  5:  858 

47.  Permission  given  to  trustees  to  re- 
ceive donations  and  bequests  for  education- 
al, charitable,  or  literary  purposes,  or  for 
the  benefit  of  institutions  to  promote  those 
purposes,  is  restricted  by  La.  act  1882,  No. 
124,  to  objects  and  institutions  within  the 
state.  Succession  of  Meunier,  52  La.  Ann. 
79,  26  So.  776,  48:  77 
City  or  town  as  trustee. 

See  also  Towns,  13,  16. 

For  Editorial  Notes,  see  infra.  III.  §  3. 

48.  A  city  cannot  be  restrained  by  injunc- 
tion from  declining  a  trust  for  charitable 
purposes  which  it  is  not  required  by  its 
charter  or  ordinances  to  accept  and  adminis- 
ter. Dailey  v.  New  Haven,  60  Conn.  314, 
22  Atl.  945,  14:  69 

49.  The  refusal  or  inability  of  a  city  to 
accept  a  trust  "for  deserving  persons  not 
paupers"  will  not  defeat  the  gift  under  a 
will  making  other  gifts  to  various  trustees, 
one  of  whom  at  least  is  also  the  beneficiary, 
and  providing  that  in  case  any  trust  is  not 
accepted  a  proportionate  distribution  shall 
be  made  among  the  others  of  the  amount 
intended  for  it.  Id. 

50.  The  capacity  of  a  municipality  to 
take  property  in  trust  is  to  be  determined, 
not  at  the  testator's  death,  but  when  the 
devise  is,  by  the  terms  of  the  will,  to  take 
effect.  Clayton  v.  Hallett,  30  Colo.  231,  70 
Pac.  429,  59 :  407 

51.  A  municipality  may  take  property  in 
trust  for  the  education  of  poor  white  male 
orphans  under  statutory  authority  to  take 
gifts  by  devise,  and  providing  for  the  as- 
sistance of  charitable  organizations,  and  for 
the  good  order,  health,  good  government,  and 
general  welfare  of  the  city.  Id. 

52.  A  city  has  no  implied  power  to  accept 
a  trust  "for  deserving  persons  not  paupers" 
whom  it  has  no  legal  power  to  support  or 
aid.  Dailey  v.  New  Haven,  60  Conn.  314, 
22  Atl.  945,  14:  69 
Holding  title  to  church  lots. 

53.  A  municipal  corporation  cannot  hold 
the  title  as  trustee  on  a  dedication  of  land 
for  a  church  lot  or  for  religious  purposes. 
Maysville  v.  Wood,  102  Ky.  263,  43  S.  W. 
403,  39 :  93 

54.  The  legal  incapacity  of  a  town  to  sup- 
port a  clergyman  entirely  defeats  a  bequest 
to  it  made  "strictly  on  this  condition,"  that 


444 


CHARITIES,  I.  d. 


it    sliall   support   him.     Bullard   v.    Shirley, 
153  Mass.  559,  27  N.  E.  766,  12:  110 

Foreign  city. 

55.  The  capacity  of  a  foreign  city  to  ac- 
cept a  legacy  is  not  wanting  so  as  to  de- 
feat the  gift  merely  because  the  capacity 
for  a  time  is  suspended  until  a  permit  is 
obtained  from  the  council  of  state.  Succes- 
sion of  Meunier,  52  La.  Ann.  79,  26  So. 
776,  48:  77 
Unincorporated  association. 

For  Editorial  Notes,  see  infra,  III.  §  3. 

56.  A  bequest  made  without  limitation  as 
to  its  use,  directly  to  an  unincorporated  but 
regularly  organized  and  well-established 
charitable  association,  is  valid.  Hadden  v. 
Methodist  Society  (N.  J.  Err.  &  App.)  51 
N.  J.  Eq.  154,  330,  26  Atl.  464,  32:  625 

57.  A  valid  bequest  may  be  made  by 
name  to  an  unincorporated  educational  so- 
ciety, which  has  an  existing  organization 
composed  of  certain  known  members,  gov- 
erned by  a  constitution  and  by-laws,  and 
having  officers  chosen  to  conduct  its  busi- 
ness affairs  and  carry  out  its  objects.  Re 
Winchester,  131  Cal.  271,  65  Pac.  475,  54:  28T 

58.  An  unincorporated,  voluntary  associa- 
tion constituting  a  branch  of  the  Salvation 
Army  cannot  be  the  beneficiary  of  a  trust 
under  Minn.  Gen.  Stat.  1894,  chap.  43,  re- 
quiring the  beneficiary  to  be  certain,  or  ca- 
pable of  being  rendered  certain.  Lane  v. 
Eaton,  ro  Minn.  141,  71  N.  W.  1031,  38:  669 
Effect  of  subsequent  incorporation. 

For  Editorial  Notes,  see  infra,  III.  §  3. 

59.  A  bequest  to  an  unincorporated  edu- 
cational society  may  be  received  by  a  cor- 
poration subsequently  formed  by  its  mem- 
bers to  carry  out  the  objects  of  the  former 
society.  Re  Winchester,  133  Cal.  271,  65 
Pac.  475,  54:  281 

60.  Incorporation  within  a  reasonable 
time  may  make  a  local  branch  of  the  Salva- 
tion Army  competent  to  become  the  benefi- 
ciary of  a  charitable  trust  by  virtue  of 
Minn.  Gen.  Stat.  §  3048,  providing  that  on 
the  incorporation  of  a  religious  society  any 
estate  devised  in  trust  for  it  shall  vest  in 
the  corporation  as  fully  as  if  it  had  been 
legaly  incorporated  from  the  date  of  its 
religious  organization.  Lane  v.  Eaton,  69 
Minn.  141,  71  N.  W.  1031,  38:  669 

61.  An  unincorporated  church  to  which 
"at  the  death"  of  testator's  wife,  to  whom  a 
life  estate  is  given,  property  is  devised  for 
use  as  a  parsonage  only,  to  revert  to  tes- 
tator's heirs  if  such  use  ceases,  may  take 
the  property  if  it  becomes  incorporated  be- 
fore her  death,  as  the  devise  does  not  vest 
until  that  time.  Lougheed  v.  Dikeman's 
Bapt.  Church  &  Soc.  129  N.  Y.  211,  29  N.  E. 
249,  14:  410 

62.  A  gift  in  trust  for  the  erection  and 
furnishing  of  a  church  and  parsonage  for 
the  use  of  a  society  of  a  certain  Christian 
denomination  is  not  invalid  because  no  such 
society  is  then  in  existence.  School  Land 
Comrs.  v.  Wadhams,  20  Or.  274,  25  Pac. 
720.  11:210 
Corporation  to  be  created. 

See  also  Perpetuities,  37. 

63.  A  gift   to  executors  in  trust  for  the 


creation  of  a  free  public  library  is  not  made 
conditional  by  a  provision  for  the  organiza- 
tion of  a  corporation  to  administer  the  char- 
ity; and  such  gift  will  not  fail  because  the 
provision  for  the  organization  of  the  corpo- 
ration may  violate  the  rule  against  perpetu- 
ities, or  even  because  the  corporation  cannot 
be  legally  organized  for  that  purpose. 
Grerar  v.  Williams,  145  HI.  625,  34  N.  E. 
467,  21 :  454 

Who  may  question  capacity. 

64.  The  legal  capacity  of  a  corporation  to 
take  a  devise  ol  property  in  excess  of  the 
amount  prescribed  by  its  charter  cannot  be 
raised  collaterally  by  private  persons, — such 
as  the  testator's  heirs  or  next  of  kin, — or  in 
any  other  way  except  in  a  direct  proceeding 
by  the  state.  Hanson  v.  Little  Sisters  of 
the  Poor,  79  Md.  434,  32  Atl.  1052,     32:  293 

65.  A  bequest  to  an  incorporated  chari- 
table institution,  of  property  in  excess  of  the 
amount  which  such  corporations  are  :iilowed 
by  general  statute  to  take  and  hold,  if  it  is 
not  prohibited  by  the  statute  of  wills  or  by 
the  charter  of  the  corporation  or  by  the  law 
which  authorized  its  organization,  and  there 
is  no  penalty  for  taking  in  excess  of  the 
limitation,  is  not  void,  but  merely  voidable, 
and  can  be  avoided  by  the  state  alone. 
Farrington  v.  Putnam,  90  Me.  405,  37  Atl. 
652.  38:  339 

66.  Where  a  charity  is  definite,  only  the 
state,  and  not  heirs  and  devisees,  can  ques- 
tion the  legal  capacity  of  the  trustee  to 
hold  and  administer  the  trust.  Heiskell  v. 
Chickasaw  Lodge,  No.  8,  87  Tenn.  668,  US. 
W.  825,  4:  699 

67.  The  legal  incapacity  of  a  corporation 
to  take  property  by  devise  or  bequest  in  ex- 
cess of  the  amount  prescribed  by  its  charter 
cannot  be  taken  advantage  of  by  heirs  at 
law  or  next  of  kin.  Congregational  Church 
Bldg.  Soc.  V.  Everitt,  86  Md.  79,  36  Atl.  654, 

35:693 

68.  A  devise  or  bequest  to  a  corporation 
of  property  which  will  exceed  the  amount 
or  value  which  the  corporation  is  by  law 
permitted  to  take  will  be  void  for  the  ex- 
cess; and  aa  to  that  excess  no  title  will  vest 
for  a  single  moment  in  the  corporation,  but 
will  vest  instantly  in  the  heir  or  next  of 
kin.  The  power  to  raise  the  question  of  the 
right  of  the  corporation  to  take  the  prop- 
erty is  not  confined  to  the  state,  but  the 
question  may  be  raised  by  the  heirs  or  next 
of  kin.  Re  McGraw's  Estate,  111  N.  Y.  66, 
19  N.  E.  233,  ,        2:  387 

d.  Definitenesa;  Discretion  of  Trustees. 

As  to  Definitenesa  of  Truat  Generally,  see 

Trusts,  31-35. 
For  Editorial  Notes,  see  infra.  III.  §  2. 

69.  The  statute  of  uses  and  trusts  fur- 
nishes no  standard  by  which  to  teat  the  suf- 
ficiency as  to  certainty  of  a  public  trust.  It 
refers  solely  to  private  trusts.  Farrington 
V.  Pier,  105  Wis.  485,  82  N.  W.  345,  50:  307 
Certainty  as  to  purposes  of  gift. 

See  also  infra,  90-93,  97. 

For  Editorial  Notes,  see  infra,  m.  §  2. 

70.  The   doctrine   that   the   scheme   of   a 


CHARITIES.  I,  d. 


445 


trust  for  charitable  uses  must  be  sufficiently 
indicated,  or  the  method  of  ascertaining  it 
pointed  out  and  its  object  made  sufficiently 
certain,  to  enable  the  court  to  enforce  bhe 
execution  of  the  trust  accordingly,  does  not 
refer  to  the  essentials  of  a  private  trust, 
indicated  in  the  statute  of  uses  and  trusts, 
but  to  the  common-law  essentials  of  a  trust 
for  charitable  uses,  in  order  to  be  enforce- 
able by  a  court  of  equity  through  its  judicial 
power.  Harrington  v.  Pier,  105  Wis.  485, 
82  N.  W.  345,  50:  307 

71.  A  trust  to  provide  education  in  the 
mechanical  arts  for  the  boys  and  girls  of 
California  is  not  void  for  uncertainty.  Peo- 
ple ex  rel.  EUert  v.  Cogswell,  113  Gal.  129. 
45Pac.  270,  35:269 

72.  A  gift  in  trust  for  the  maintenance  of 
a  parish  school,  to  the  vestry  of  a  Protes- 
tant Episcopal  church  which  is  a  corpo- 
ration, is  not  void  for  indefiniteness  and  un- 
certainty. Hanson  v.  Little  Sisti^  of  the 
Poor,  79  Md.  434,  32  Atl.  1062,  32:  293 

73.  A  trust  for  the  maintenance  of  a  par- 
ish school  is  germane  to  the  object  for 
which  a  Protestant  Episcopal  church  is  in- 
corporated. Id. 

73a.  A  devise  of  a  fund  to  be  distributed 
by  the  executor  "to  the  poor,"  in  his  dis- 
cretion, is  valid,  under  a  statute  making 
valid  gifts  to  charity  "which  shall  have 
pointed  out  with  reasonable  certainty"  the 
purpose  of  the  charity  and  the  beneficiaries 
thereof.  Thompson  v.  Brown,  24  Ky.  L. 
Rep.  1066,  70  S.  W.  674,  62:  398 

74.  There  is  no  uncertainty  which  will  de- 
feat a  gift  for  the  benefit  of  poor  churches 
of  a  city  and  vicinity.  McAlister  v.  Bur- 
gess, 161  Mass.  269,  37  N.  E.  173,        24:  158 

75.  A  legacy  to  a  missionary  society,  "to 
be  held  in  trust"  to  educate  six  girls  in 
India,  who  shall  be  given  certain  names,  and 
to  purchase  a  building,  which  shall  be 
called  a  certain  name  and  be  used  for  the 
education  of  girls  there,  the  location  of 
which  shall  be  left  to  the  decision  of  a 
certain  bishop  and  his  successors, — does  not 
create  a  trust  void  because  vague,  indefinite, 
and  uncertain,  where  the  society  is  engaged 
in  that  work,  but  is  merely  a  bequest  to  the 
society  for  the  prosecution  of  its  work  upon 
conditions  annexed  to  the  gift.  Woman's 
Foreign  Missionary  Soc.  of  M.  E.  Church  v. 
Mitchell,  93  Md.  199,  48  Atl.  737,        53:  711 

76.  A  trust  for  the  promotion  of  temper- 
ance work  in  a  certain  city  is  not  fatally 
indefinite,  ■where  the  term  "temperance 
work"  is  obviously  intended  to  mean  work 
to  prevent,  as  far  as  practicable,  the  use  of 
intoxicating  liquors.  Harrington  v.  Pier, 
105  Wis.  485,  82  N.  W.  345,  50:  307 

77.  The  promotion  of  the  cause  of  tem- 
perance is  too  vague  and  uncertain  as  a 
description  of  the  objects  for  which  a  cor- 
poration was  formed  to  enable  a  court  to 
say  that  funds  contributed  for  the  use  of 
the  corporation  constitute  a  public  charity 
which  can  be  administered  by  a  court  of 
equity.  Hence  a  division  of  the  fund  by 
the  corporation  among  its  own  members  is 
not  such  a  perversion  thereof  as  amounts  to 
an  injury  to  the  public  so  as  to  demand  a 


forfeiture  of  the  corporate  charter.  People 
ex  rel.  Attorney  General  v.  Daafhaway  Asso. 
84  Cal.  114,  24  Pac.  277,  12:  117 

78.  A  bequest  for  an  "art  institute"  is  not 
void  for  indefiniteness, — especially  when  a 
codicil  refers  to  its  distribution  of  prizes  for 
works  "of  the  fine  arts."  Almy  v.  Jones,  17 
R.  I.  265,  21  Atl.  616,  12:  414 

79.  A  bequest  is  not  void  for  remoteness 
where  it  gives  a  fund  for  an  art  institute,  to 
take  effect  when  the  necessary  funds  to 
found  one  are  contributed,  and  in  the  mean- 
while the  income  is  to  be  distributed  annu- 
ally in  prizes  for  the  best  works  of  art  by 
artists  belonging  to,  or  residing  in,  the 
state.  Id. 
As  ta  trustee  or  beneficiaries. 

Discretion  as  to  Beneficiaries,  see  infra,  94- 

101. 
See  also  supra,  56-58,  73a;  Trusts,  31. 
For  Editorial  Note,  see  infra.  III.  §  2. 

80.  Necessary  certainty  as  to  beneficiaries 
in  a  public  trust  goes  no  further  than  rea 
sonable  certainty  as  to  the  class — which 
may  be  great  or  small,  particular  or  general, 
— from  which  the  trustee  may  be  authorized 
to  select  the  immediate  persons  or  objects 
to  receive  the  special  benefits.  Harrington 
V.  Pier,  105  Wis.  485,  82  N.  W.  345,   50:  307 

81.  Indefiniteness  of  beneficiaries  is  one  of 
the  characteristics  of  a  trust  for  charitable 
uses.  Without  it  the  trust  is  private. 
Neither  such  indefiniteness,  nor  indefinite 
ness  as  to  the  precise  nature  of  the  work  to 
be  done,  or  the  mode  of  execution  in  carry- 
ing out  a  particular  purpose  which  may  be 
indicated  in  general  language,  militates 
against  the  validity  of  the  trust.  Id. 

82.  The  idea  that  there  must  be  certainty 
of  beneficiaries  holding  the  equitable  title, 
who  can  come  into  court  and  enforce  the 
trust,  applies  to  private,  but  not  to  public, 
trusts,  and  has  no  place  in  a  system  of 
charities  where  common-law  trusts  therefor, 
sustainable  without  the  aid  of  cy  pros  au- 
thority, are  valid.  Such  a  system,  as  to 
personal  property,  at  least,  exists  in  Wis- 
consin. Id. 

83.  A  residuary  bequest  to  certain 
churches  according  to  the  number  of  mem- 
bers, to  buy  coal  for  the  poor  of  the 
churches,  is  a  direct  gift  to  the  churches, 
and  does  not  create  a  trust  for  unascer- 
tained or  indefinite  beneficiaries.  Bird  v. 
Merklee,  144  N.  Y.  544,  39  N.  E.  G45,    27:423 

84.  A  bequest  of  property  to  be  used  by 
the  Roman  Catholic  bishop  of  the  diocese 
of  Green  Bay  "for  the  benefit  and  behoof  of 
the  Roman  Catholic  Church,"  there  being 
several  churches  in  the  diocese,  is  void  for 
uncertainty.  McHugh  v.  McCole,  97  Wis. 
166,  72  N.  W.  631,  40:  724 

85.  A  bequest  to  the  bishop  of  Fond  du 
Lac,  to  be  used  by  him  for  the  benefit  and 
behoof  of  the  Protestant  Episcopal  Church 
of  Fond  du  Lac,  which  is  not  shown  to  be  a 
body  corporate  or  legal  entity  capable  in 
law  of  taking  or  asserting  any  right  in  court 
to  the  fund,  but  which  consists  of  several 
organizations, — is  void  for  uncertainty.     Id. 

85a.  A  will  giving  property  "to  t^e  board 
of    trustees    for    the    Protestant    Episcopal 


416 


CHARITIES,  I.  d. 


Church  ill  the  diocese  of  North  Carolina" 
constitutes  a  gift  to  the  diocese  as  it  ex- 
isted at  the  execution  of  the  will,  although, 
prior  to  the  death  of  the  testatrix,  a  portion 
of  the  territory  was  detached,  and  a  new 
diocese,  designated  as  the  "diocese  of  East 
Carolina,"  created  therefrom.  East  Carolina 
Diocese  v.  North  Carolina  Diocese,  102  N.  C. 
442,  9  S.  E.  310,  3:  626 

85b.  A  legacy  to  the  "Board  of  Man- 
agers of  the  Foreign  Missionary  Society  of 
the  Methodist  Episcopal  Church,"  for  the 
education  of  girls  in  India,  no  body  of  that 
name  being  in  existence,  will  go  to  the 
Woman's  Foreign  Missionary  Society  of  said 
church,  that  being  the  only  foreign  mis- 
sionary society  in  the  Methodist  Church  that 
is  engaged  in  the  particular  work  to  wliich 
the  legacy  is  devoted.  Woman's  Foreign 
Missionary  Soc.  of  M.  E.  Church  v.  Mitchell, 
93  Md.  199,  48  Atl.  737,  53:  711 

S6.  A  devise  of  property  to  be  used  in 
aiding  the  cause  of  home  and  foreign  mis- 
sions, made  to  an  incorporated  church  which 
is  authorized  to  acquire  property  for  such 
pui-poses,  is  not  a  devise  in  trust  for  which 
there  must  be  an  ascertained  beneficiary, 
but  is  an  absolute  gift  to  the  church.  Lane 
V.  Eaton,  69  Minn.  141,  71  N.  W.  103,  38:  669 

87.  A  devise  to  Chickasaw  Lodge  of  Odd 
Fellows,  "for  the  benefit  of  the  widows  and 
orphans,"  is  sufficiently  definite  as  a  char- 
ity, being  a  devise  for  the  widows  and  or- 
phans of  deceased  members  of  the  lodge. 
Heiskill  v.  Chickasaw  Lodge,  No.  8,  87  Tenn. 
668,  11  S.  W.  825,  4:  699 

88.  A  bequest  to  a  town  in  trust  in  perpe- 
tuity for  the  benefit  of  the  poor  of  the 
town,  not  confined  to  those  for  whose  sup- 
port the  town  is  under  a  statutory  liability, 
is  invalid  for  want  of  an  ascertained  bene- 
ficiary. Fosdick  v.  Hempstead,  125  N.  Y. 
581,  26  i\.  E.  801,  11:715 

88a.  A  bequest  or  devise  to  a  township  in 
Indiana,  although  primarily  to  the  civil 
township,  will  be  held  to  be  to  the  school 
township  when  the  intention  appears  to 
create  a  fund  for  the  support  of  common 
schools.  Skinner  v.  Harrison  Twp.  116  Ind. 
139,  18  N.  E.  529,  2:  137 

89.  The  phrase  "worthy  of  the  city,"  in  a 
will  giving  a  fund  for  an  art  institute  when 
citizens  have  contributed  funds  necessary  to 
found  one  worthy  of  the  city,  does  not  make 
the  gift  void  for  indefiniteness.  Almy  v. 
•Tones,  17  R.  T.  265,  21  Atl.  616.  12:  414 
Discretion  as  to  purposes  of  gift. 

See  also  infra.  97. 

90.  Authorizing  trustees,  in  a  gift  for  a 
charity,  to  set  aside  a  proper  amount  to 
raise  an  income  to  pay  certain  charges  or 
expenses,  all  of  which  are  either  fixed  by 
law,  or,  by  the  terms  of  the  will,  must  be 
reasonable,  does  not  give  them  arbitrary 
powers  which  will  make  the  gift  invalid,  or 
authorize  them  to  expend  any  part  of  the 
estate  for  purposes  "noncharitable."  Crerar 
v.  AVilliams.  145  111.  625,  34  N.  E.  467, 

21 :  454 

91.  A  devise  to  trustees  "for  some  chari- 
table purpose,  preference  always  to  be  given 
to  something  of  an  educational  nature,  al- 


though permissible  to  appropriate  the  in- 
come in  any  way  it  may  seem  to  the  trus- 
tees to  be  necessary  and  most  desirable,  as 
they  may  elect," — is  too  indefinite  to  be  en- 
forced in  equity.  Johnson  v.  Johnson,  92 
Tenn.  559,  23  S.  W.  114,  22:  17» 

92.  The  fact  that  a  gift  of  money  by  will 
is  declared  to  be  "strictly  for  private  char- 
ities," and  to  be  expended  according  to  the 
judgment  of  testator's  sisters,  will  not  pre- 
vent it  from  being  a  public  charity  where 
it  is  for  the  relief  of  the  "poor  and  unfortu- 
nate." Bullard  v.  Chandler,  149  Mass.  532,, 
21  N.  E.  951,  5:  104 

93.  The  benefit  of  the  poor  is  a  merely 
subordinate  purpose  which  does  not  make 
valid  a  trust  created  explicitly  for  hospital- 
ity to  ministers  and  others  "traveling  in 
the  service  of  truth,"  where  in  the  preamble 
the  will  says  the  estate  shall  be  applied 
strictly  "according  to  the  directions"  there- 
in given,  although,  in  an  instrument  append- 
ed to  the  will,  testator  leaves  it  to  the  judg- 
ment of  his  executors  to  apply  funds  in 
their  hands  "to  the  personal  relief  of  the 
poor,  or  otherwise  in  the  service  of  the 
truth."  Kelly  v.  Nichols,  18  R.  L  62,  25 
Atl.  840,  19:413 
Discretion  as  to  beneficiaries. 

94.  A  bequest  cannot  be  upheld  as  an 
executory  devise  to  a  designated  institution 
where  the  property  is  given  to  trustee* 
with  complete  discretionary  power  to  con- 
vey or  not  to  convey  it  to  the  suggested 
beneficiary.  Tilden  v.  Green,  130  N.  Y.  29, 
28  N.  E.  880,  14:  33 

95.  A  bequest  of  money  "to  be  divided 
among  the  Sisters  of  Charity,"  without  any 
limitation  as  to  locality,  state,  or  nation, 
and  without  any  pro^sion  for  the  exercise 
of  discretion  by  the  trustees,  is  void  for  un- 
certainty. Moran  v.  Moran,  104  Iowa,  216, 
73  N.  W.  617.  39:204 

96.  A  trust  under  a  will  to  dispose  of 
property  among  the  charitable  and  benevo- 
lent institutions  or  corporations  in  a  city  as 
the  trustee  shall  choose  and  in  such  sums 
and  proportion  as  he  shall  deem  proper, 
which  is  unaffected  by  N.  Y.  Laws  1893, 
chap.  701,  is  .unenforceable  because  of  the 
failure  to  designate  or  describe  a  class  or 
kind  of  beneficiaries  to  whom  distribution 
is  practicable  or  that  can  with  reasonable 
certainty  be  identified.  People  v.  Powers, 
147  N.  Y.  104,  41  N.  E.  432,  35:  502 

97.  A  bequest  to  trustees  to  pay  oyer  "to 
some  Presbyterian  institution  in  Baltimore 
as  they  may  determine,  for  charitable  or  re- 
ligious purposes,"  is  void  for  indefiniteness 
both  as  to  the  donee  and  the  purposes  to 
which  the  gift  is  to  be  applied.  Gambel  v. 
Trippe,  75  Md.  252,  23  Atl.  461,  15:  236 

98.  A  devise  for  the  establishment  of  a 
college  for  the  education  "of  as  many  poor 
white  male  orphans  born  of  reputable  par- 
ents as  the  income  shall  be  adequate  to 
maintain"  is  not  void  for  indefiniteness, 
where  the  executors  of  the  will  are  given  au- 
thority to  "devise  and  promulgate  such  rules 
and  regulations  as  they  shall  deem  proper 
for    the    government    of    the    institution." 


CHARITIES,  II.  a. 


447 


Clayton  v.   Hallett,   30   Colo.   231,   70   Pac. 
429,  59:407 

99.  The  invalidity  of  a  charitable  trust 
because  of  uncertainty  as  to  the  beneficia- 
ries cannot  be  cured  by  anything  done  by 
the  trustees  to  execute  it.  Tilden  v.  Green, 
130  N.  Y.  29,  28  N.  E.  880,  14:  33 

100.  The  death  of  trustees  who  are  given 
by  will  power  to  select  the  beneficiary  of  a 
charitable  bequest,  without  making  such 
selection,  will  defeat  the  bequest  if  it  can 
be  considered  valid  in  the  first  instance. 
Gambel  v.  Trippe,  75  Md.  252,  23  Atl.  461, 

15:  235 

101.  Lack  of  a  designated  beneficiary,  and 
the  unlawful  delegation  of  the  selection 
thereof,  render  void  a  testamentary  gift  of 
the  residue  of  an  estate  to  trustees  to  be 
given  by  them  to  a  corporation  to  be  created 
for  the  maintenance  of  a  free  library  and 
reading  room  in  New  York  city,  and  for  the 
promotion  of  such  scientific  and  educational 
objects  as  they  may  designate;  but  in  case 
the  institution  is  not  incorporated  within 
two  specified  lives  in  being,  or  if  "for  any 
cause  or  reason"  the  trustees  "deem  it  in- 
expedient" to  give  to  it  all  or  any  part  of 
the  property,  then  it  is  to  be  given  by  them 
"to  such  charitable,  educational,  and  scien- 
tific purposes  as  in  their  judgment  will  ren- 
der the  gift  most  widely  and  substantially 
beneficial  to  the  interests  of  mankind."  The 
provision  as  to  the  proposed  corporation  is 
not  a  primary  gift  followed  by  an  ulterior 
or  alternative  disposition,  but  there  is  only 
a  single  scheme,  which  gives  the  trustees  un- 
limited discretion  as  to  the  selection  of 
beneficiaries  so  long  as  the  gift  goes  to 
charitable  objects.  Tilden  v.  Green,  130  N. 
Y.  29,  28  N.  E.  880,  14:  33 


n.  Enforcement;  Control;  Forfeiture. 
a.  In  General. 

Right  of  State's  Attorney  to  Bring  Suit  to 

Enforce,   see  District   and   Prosecuting 

Attorneys,  2. 
Interference    by    Court    with    Division    of 

Fireman's  Fund,  see  Courts,  221. 
Donor's  Right  of  Action  to  Protect  Fund, 

see  Parties,  13. 
For  Editorial  Notes,  see  infra.  III.  §  4. 

102.  Charitable  uses  will  be  enforced  in 
accordance  with  the  principles  of  the  com- 
mon law,  in  the  absence  of  statutory  pro- 
hibition. Clayton  v.  Hallett,  30  Colo.  231, 
70  Pac.  429,  .  59:  407 

103.  It  is  not  essential  to  the  existence  or 
enjoyment  of  a  trus£  for  charitable  uses 
that  the  individual  beneficiaries  are  able  to 
show  that  they  contributed  to,  or  have  a 
personal,  pecuniary  interest  in,  the  trust 
property;  their  interest  is  measured  by,  and 
limited  to,  the  uses  for  which  the  property 
is  held.  Mannix  v.  Purcell,  46  Ohio  St.  102, 
19  N.  E.  572,  2:  753 

104.  A  charitable  trust  will  not  fail  by 
reason  of  the  fact  that  judges  who  are  au- 
thorized to  appoint  a  board  of  trustees  to 


succeed  executors  in  the  management  of  the 
property  fail  to  make  such  appointment,  or 
because  the  board  may  not  be  a  body  of  per- 
petual succession  recognized  by  the  law. 
Re  John's  Estate,  30  Or.  494,  47  Pac.  341, 

36:  242 

105.  Any  change  of  the  boundaries  of  a 
school  district  in  which  a  free  school  is  to  be 
established  and  maintained  by  a  charitable 
gift  will  not  affect  the  validity  of  the  char- 
ity which  is  described  as  for  "children  of 
the  school  district,  which  shall  embrace"  a 
certain  town.  Id. 

106.  Power  to  formulate  rules  for  the  gov- 
ernment of  the  board  of  trustees  of  a  char- 
ity, given  by  will  to  judges  who  are  au- 
thorized to  appoint  such  trustees,  can  in  no 
way  impinge  upon,  change,  or  modify  the 
nature  of  the  charity  which  the  testator  has 
sought  to  establish,  or  modify  the  manner 
of  administration  wherein  he  has  particular- 
ized or  given  the  judges  supervisory  control 
over  the  board  of  trustees  in  the  direction  of 
the  tnist.  Id. 

107.  Failure  to  provide  for  conveyance  by 
executors  to  a  board  of  trustees  provided 
for  in  a  will  creating  a  charity,  even  if  it  is 
an  oversight,  will  not  prevent  the  execution 
of  the  trust,  as  the  property,  even  if  it  de- 
scends to  heirs  of  the  executor  or  testator, 
will' be  held  charged  with  the  trust,  and 
equity  will  place  it  in  the  proper  channel  of 
administration.  Id. 

108.  One  to  whom  the  public  contributes 
a  fund  for  the  benefit  of  the  families  of 
firemen  killed  in  the  discharge  of  their 
duties  may  resign  his  trust;  and  in  case  he 
does  so,  and  the  court  accepts  his  appointees, 
they  must  be  made  parties  to  the  proceed- 
ings before  a  binding  judgment  can  be  ren- 
dered as  to  the  disposition  of  the  fund. 
Hallinan  v.  Hearst,  133  Cal.  645,  66  Pac. 
17,  55:216 

109.  Where  property  is  held  by  an  arch- 
bishop of  the  Roman  Catholic  Church  in 
trust  to  be  devoted  to  the  uses  of  public 
religious  worship,  cemeteries,  orphan  asy- 
lums, and  schools,  each  church,  cemetery, 
asylum,  and  school  is  held  upon  a  separate 
trust  and  for  its  own  separate  uses :  and  one 
piece  of  property  so  held  is  not  chargeable 
with  any  part  of  the  expense  of  improving 
another,  Or  of  improving  church  property 
generally  in  the  diocese.  Mannix  v.  Purcell, 
46  Ohio 'St.  102,  19  N.  E.  572,  2:  753 

110.  Though  the  several  congregations  of 
the  churches  so  held  in  trust,  and  the  per- 
sons respectively  possessing  and  having 
charge  of  such  schools,  cemeteries,  and  asy- 
lums, are  severally  unincorporated  and  oth- 
erwise incapable  of  holding  the  legal  title  to 
the  property  so  used,  they  nevertheless  have 
such  an  interest  in  the  trust  property  as 
permits  them  to  be  represented  in  court  by 
a  number  less  than  the  whole,  having  a 
common  interest  with  them,  for  the  purpose 
of  protecting  the  property  from  seizure  and 
sale  for  the  satisfaction  of  the  private  debts 
of  the  trustee.  Id. 

111.  Changes  in  the  membership  of  such 
congregations  and  bodies  do  not  affect  their 
legal  identity;  and,  for  the  purpose  of  con- 


448 


CHARITIES,  II.  b. 


tinning  and  enjoying  the  uses  to  which  the 
propeilies  respectively  possessed  by  them 
are  devoted,  they  respectively  remain,  in 
legal  contemplation,  the  same  congregations 
and  bodies.  Id. 

112.  Such  a  trustee  has  power,  by  con- 
tract, to  charge  the  trust  property  with  the 
reasonable  expense  of  its  necessary  preser- 
vation, improvement,  anu  repair,  in  favor  of 
one  who  expends  money,  labor,  or  materials 
for  that  purpose.  Id. 

113.- A  nuisance  is  subject  to  injunction 
and  abatement  in  a  suit  for  that  purpose 
although  the  defendant  is  a  corporation 
maintaining  a  lunatic  asylum  at  the  expense 
of  the  state, — especially  when  the  statute 
creating  it  has  provided  that  it  may  sue 
and  be  sued.  Herr  v.  Central  Ky.  Lunatic 
Asylum,  97  Ky.  458,  30  S.  W.  971,  28:  394 
Power  to  designate  beneficiaries, 

114.  The  appointment  of  trustees  for  a 
college  for  the  education  of  orphans,  with 
power  to  control  and  supervise  the  college, 
carries  with  it,  by  necessary  implication,  the 
authority  to  designate  the  beneficiaries. 
Clayton  v.  Hallett,  30  Colo.  231,  70  Pac.  429, 

59:407 
Power  to  change  beneficiaries. 

115.  A  fund  contributed  for  the  relief  of 
sufferers  from  a  fire,  by  persons  whose 
identity  is  lost  so  that  a  surplus  cannot  be 
returned  to  them,  must  be  expended  for 
the  benefit  of  such  sufferers,  and  cannot  be 
capitalized    for    the    support    of    the    town 

.  poor  senerallv.  Doyle  v.  Whalen,  87  Me. 
414.  32  Atl.   1022,  31:  118 

IIG.  The  unexpended  share  of  a  bene- 
ficiary of  a  fund  contributed  by  the  public 
to  aid  tli8  families  of  members  of  the  fire 
department  killed  in  the  discharge  of  their 
duty  cannot  at  his  deatn  be  given  over  to 
the  Fire  Department  Charitable  Fund  As- 
sociation, so  long  as  any  dependent  relative 
of  one  of  the  firemen  remains.  Hallinan  v. 
Hearst.  133  Cal.  645,  66  Pac.  17,  55:  216 

Right    of    beneficiaries   to    compel   enforce- 
ment. 

117.  Sufferers  from  a  fire  for  whose  bene- 
fit a  fund  has  been  donated  by  individuals 
unknown  may  maintain  a  bill  to  compel  the 
trustees  to  expend  the  fund  for  their  bene- 
fit, if  the  trustees  have  undertaken  to  capi- 
talize the  fund  for  the  general  benefit  of  the 
poor  of  the  town.  Doyle  v.  Whalen,  87  Me. 
414.  .32  Atl.  1022,  31:  118 

118.  A  minor  beneficiary  of  a  fund  con- 
tributed by  the  public  to  aid  the  families  of 
members  of  the  fire  department  who  were 
killed  in  the  discharge  of  their  duty  cannot 
compel    payment   of   his    share   faster   than 

^  it  is  required  to  relieve  his  necessities  and 
contribute  to  his  support.  Hallinan  v. 
Hearst,  133  Cal.  645,  66  Pac.  17,  55:  216 

b.  Cy  Pr^s  Doctrine. 

See  also  Wills.  441. 

For  Editorial  Notes,  see  infra,  III.  §  4. 

119.  The  doctrine  of  cy  pres  is  not  in  force 
in  Wisconsin.  !McHugh  v.  McCole,  97  Wis. 
166,  72  X.  W.  631.  40:  724 


120.  The  cy  pres  doctrine,  as  indicative  of 
prerogative  authority,  does  not  prevail  in 
Wisconsin;  but  as  regards  liberal  rules  of 
construction  of  charitable  trusts,  applied  in 
chancery  in  England  independent  of  the 
statute  of  Elizabeth,  it  does  prevail.  Har- 
rington V.  Pier,  105  Wis.  485,  82  N.  W.  345, 

50:  307 

121.  Cy  pris  power,  as  commonly  under- 
stood, has  two  features:  One,  the  right  to 
exercise  prerogative  authority,  enabling  a 
court  to  deal  with  a  bequest  to  a  charitable 
use  having  no  designated  particular  purpose, 
as  a  bequest  to  charity  generally,  treating 
the  purpose  as  the  legatee,  or  a  bequest  for 
an  illegal  purpose,  or  some  purpose  impossi- 
ble of  execution  for  some  reason;  and  the 
other,  the  right,  by  liberal  rules  of  construc- 
tion, to  deal  with  a  trtist  having  a  designat- 
ed particular  purpose  though  in  general 
terms,  and  enforce  it  within  the  limits  of 
such  purpose,  supplying  the  trustee  if  nec- 
essary. The  former  is  not  exercised  in  Wis- 
consin, but  the  latter  is,  Id. 

122.  In  sustaining  a  charitable  trust  for 
a  particular  purpose,  courts  of  equity  resort 
to  liberal  rules  of  construction  to  determine 
the  intent  of  the  donor,  enabling  them  to 
go  to  the  limit  of  the  general  purpose  indi- 
cated by  the  donor,  and  do  everything  neces- 
sary to  enforce  such  purpose,  but  not  to  go 
outside  of  it  into  the  realms  of  preroga- 
tive authority  governed  by  the  cy  prds  doc- 
trine strictly  so  called.  Id. 

123.  Whether  the  doctrine  of  cy  prds  can 
be  properly  applied  in  Illinois  to  give  effect 
to  conveyances  for  charitable  uses,  or  not, 
a  court  of  chancery  will,  if  the  mode  point- 
ed out  in  the  conveyance  or  will  for  carry- 
ing it  into  effect  fails,  provide  another  mode 
by  which  the  charity  may  take  effect. 
Crerar  v.  Williams,  145  HI.  625,  34  N.  E. 
467,  _  21:454 

124.  If  the  main  object  of  a  legacy  is  to 
support  a  particular  institution  for  the 
promotion  of  a  particular  art,  the  gift  will 
fail  upon  failure  of  the  donee,  although  the 
bequest  is  to  a  public  charity.  Stratton  v. 
Phvsio-Medical  Inst.  149  Mass.  505,  21  N. 
E. '874,  5:33 

135.  A  fund  given  by  will  to  trustees  "to 
establish  a  female  academy,"  etc.,  may  be 
used  for  the  support  of  a  public  school  in 
connection  with  the  town,  when  it  has  be- 
come impracticable  to  maintain  a  female 
academy  with  it.  Adams  Female  Academy 
V.  Adama,  65  N.  H.  225,  18  Atl.  777,  23  Atl. 
430,  6:  785 

126.  Land  deeded  to  a  town  for  the  pur- 
pose of  establishing  a  public  school  therein, 
upon  the  condition  that  it  shall  remain  for- 
ever appropriated  to  such  use,  and  shall 
never  become  private  property,  cannot  be 
granted  by  the  town  to  a  board  of  regents 
for  the  purpose  of  establishing  a  normal 
school  in  such  town  for  the  training  and 
education  of  school  teachers.  Normal  School 
Dist.  No.  3  V.  Painter,  102  Mo.  464,  14  S. 
W.  938,  10:  493 

127.  The  failure  of  the  purpose  of  the 
testatrix  in  a  bequest  for  the  building  of  a 
chapel  in  her  native  place,  which  results  be- 


CHARITIES,  II.  c. 


449 


cause  the  people  there  are  diminishing  in 
number  and  are  too  poor  to  support  the 
chapel,  will  not  justify  a  diversion  of  the 
fund  by  the  cy  prcs  doctrine  to  the  repair 
of  a  neighboring  parish  church,  or  for  a 
parish  house,  or  the  enlargement  of  a  parish 
graveyard  or  otherwise  for  the  general  bene- 
fit of  the  parish,  but  the  bequest  must  be 
held  to  have  failed.  Teele  v.  Bishop  of 
Derry,  168  Mass.  341,  47  N.  E.  422.      38:  629 

128.  The  doctrine  of  cy  pres  does  not 
justify  appropriating  an  invalid  gift  in  trust 
for  the  entertainment  of  traveling  members 
of  the  Society  of  Friends,  of  the  same  faith 
as  that  of  the  testator,  to  the  printing  of 
religious  books  for  the  use  of  the  poor  of 
that  society,  where  he  had  devoted  to  these 
purposes  only  the  surplus  which  might  re- 
main after  meeting  the  demands  of  the 
main  trust.  Kelly  v.  Nichols,  18  R.  I.  62,  25 
Atl.  640,  19:413 

129.  Land  devised  as  the  site  of  a  city 
hospital  may  be  sold  by  order  of  court  and 
the  proceeds  invested  to  provide  for  the 
current  expenses  of  the  hospital>  by  the 
application  of  the  doctrine  of  cy  pres,  where 
the  will,  which  gives  a  sum  of  money  also 
for  such  hospital,  does  not  indicate  any  in- 
tent to  make  the  gift  depend  on  the  occu- 
pation of  that  particular  site,  and  it,  by  rea- 
son of  its  location  and  other  causes,  is  not 
a  suitable  site  for  a  hospital,  and  the  hos- 
pital has  in  the  meantime  received  by  gift 
from  other  parties  all  the  real  estate  need- 
ed. Weeks  v.  Hobson,  150  Mass.  377,  23 
N.  E.  215,  6:  147 

130.  The  doctrine  of  cy  pres  does  not  ap- 
ply to  a  bequest  which  is  not  made  to  a 
definite  charitable  use.  Kelly  v.  Nichols,  18 
R.  I.  62,  25  Atl.  840,  19:413 

131.  A  legacy  to  a  medical  institute  al- 
ready in  existence,  but  a  private  pecuniary 
enterprise,  is  not  a  bequest  to  a  public  char- 
ity; and,  in  case  the  beneficiary  ceases  to 
exist  before  the  will  takes  effect,  the  court 
will  not  apply  the  gift  cy  pres.  Stratton  v. 
Physio -Medical  Inst.  149  Mass.  505,  21  N. 
E.  874,  5:33 

c.  Liability  for  Damages. 

Liability  for  Negligence  in  Ultra  Vires  Man- 
agement of  Ferry,  see  Corporations,  206. 
For  Editorial  Notes,  see  infra,  III.  §  5. 

132.  A  personal  injury  caused  by  the 
negligence  of  an  agent  or  servant  of  a  pub- 
lic charitable  corporation  does  not  give  a 
right  of  action  for  damages  against  it, 
when  the  only  funds  from  which  payment 
could  be  made  are  such  as  have  been  volun- 
tarily contributed  for  charitable  objects. 
Philadelphia  Fire  Ins.  Patrol  v.  Boyd,  120 
Pa.  624,  15  Atl.  5,53,  1 :  417 

133.  A  corporation,  the  membership  in 
which  is  limited  to  officers  and  agents  of 
fire  insurance  companies  doing  business  in 
a  certain  city,  having  power  to  provide  for 
and  assist  in  the  saving  of  life  and  property 
at  fires,  the  funds  of  which  are  raised  by 
assessments  upon  the  companies  doing  busi- 
ness in  such  city,  is  a  private,  and  not  a 

L.R.A.  Dig.— 29. 


public  corporation;  nor  is  it  a  public  char- 
ity; and  it  is  liable  in  damages  for  injuries 
resulting  from  the  negligence  of  its  serv- 
ants in  driving  through  the  public  streets; 
notwithstanding  the  facts  that  the  saving 
of  life  and  property  are  referred  to  in  its 
charter  in  general  terms,  and  that  it  in  fact 
makes  no  distinction  in  its  efforts  to  save 
property  between  insured  and  uninsured. 
Newcomb  v.  Boston  Protective  Dept.  151 
Mass.  215,  24  N.  E.  30,  6:  778 

Reform  school. 

134.  A  reform  school  under  the  control 
and  oversight  of  the  legislature,  which  is 
an  agency  of  the  state  maintained  by  taxa- 
tion and  state  aid,  is  not  liable  to  an  action 
for  damages  for  negligent  or  malicious  in- 
juries to  an  inmate  by  its  servants  or  em- 
ployees. Williamson  v.  Louisville  Indus- 
trial School  of  Reform,  95  Ky.  251,  24  S. 
W.  1065,  23:  200 
Hospitals. 

See  also  Hospitals,  7;  State  Institutions,  8. 

135.  A  charitable  corporation  maintaining 
a  hospital  is  not  liable  for  injuries  caused  by 
personal  wrongful  neglect  of  servants  who 
have  been  selected  with  due  care.  Hearns 
V.  Waterburv  Hospital,  60  Conn.  98,  33  Atl. 
595,  '  31:224 

136.  A  hospital  organized  exclusively  for 
charity  is  not  liable  for  injury  to  a  patient 
caused  by  the  negligence  of  its  carefully 
selected  nurse,  even  though  a  charge  is  made 
and  paid  for  the  services  rendered  to  the 
patient  injured, — at  least  if  the  amount  paid 
does  not  make  full  pecuniary  compensation 
for  the  services  rendered;  since  an  agree- 
ment to  hold  the  hospital  harmless  for  the 
acts  of  its  servants  arises,  by  necessary  im- 
plication, from  the  relation  of  the  parties. 
Powers  V.  Massachusetts  Homoeopathic  Hos- 
pital, 47  C.  C.  A.  122,  129  Fed.  294,      65:  372 

137.  An  injury  to  an  inmate  of  a  hospital 
for  the  insane  which  is  a  purely  eleemosy- 
nary institution,  caused  by  the  tortious  or 
negligent  acts  of  its  managers  or  employees, 
will  not  create  a  liability  against  the  insti- 
tution for  damages.  Downs  v.  Harper  Hos- 
pital, 101  Mich.  555,  60  N.  W.  42,  25:  602 

138.  The  fact  that  patients  who  are  able 
to  do  so  are  required  to  pay  for  the  privi- 
leges of  a  hospital  will  not  of  itself  destroy 
its  character  as  a  charitable  institution,  or 
make  it  liable  to  such  a  patient  for  negli- 
gence or  torts  of  its  employees.  Id. 

139.  A  railroad  company  is  not  liable  to 
employees  for  negligence  of  physicians  and 
surgeons  in  a  hospital  which  it  voluntarily 
maintains  for  the  gratuitous  accommodation 
of  injured  employees  to  whom  the  company 
owes  no  statutory  or  contractual  obligation 
in  the  matter.  Eighmy  v.  Union  P.  R.  Co. 
93  Iowa,  538,  61  N.  W.  1056,  27:  296 

140.  A  corporation  which  voluntarily  pro- 
vides a  physician  for  injured  or  sick  employ- 
ees, whose  services  they  are  free  to  reject  or 
accept,  is  liable  only,  if  at  all,  for  negligence 
in  the  selection  of  the  physician,  and  not  for 
his  negligent  or  tortious  acts  in  the  treat- 
ment of  those  who  accept  his  services. 
Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Sullivan, 
141  Ind.  83,  40  N.  E.  138,  27:  840 


450 


CHARITIES,   III.— CHASTITT. 


141.  A  railroad  company  is  not  liable  for 
the  malpractice  of  physicians  or  the  care- 
lessness of  attendants  at  a  hospital  main- 
tained as  a  charitable  enterprise  by  contri- 
butions of  the  company  and  small  sums  de- 
ducted monthly  from  the  wages  of  its  em- 
ployees. Union  P.  R.  Co.  v.  Artist,  19  U. 
S.  App.  612,  9  C.  C.  A.  14,  60  Fed.  365, 

23:  581 


III.  Editorial  Notes. 

Taxes  on,  see  Taxes,  VI.  §  8. 

Rule  of  Perpetuities  as  to,  see  Perpetuities, 
V. 

§  I.  Generally. 

What  are  public  charities.  1:  418;*  3:  147;* 
5:  37,*  106;*  6:  84;*  12: 
414.* 

What  are  charitable  gifts.     5:  36.* 

Gift  of  fund  to  be  maintained.     4:  699.* 

Gifts  designed  to  promote  public  good.  5: 
106.* 

Gifts  to  promote  public  good.     5:  33,*  104.* 

Gift  for  educational  purposes.   5:  106,*  858.* 

Gift  for  religious  purposes.  3:  148;*  5: 
107.* 

Chancery  jurisdiction.     1:  418;*  5:  37.* 

Statute  of  Elizabeth.     1:  417;*  5:  33* 

Charitable  trusts  under  the  statute.   3:  146.* 

Distinction  between  charitable  and  other 
trusts.     5:34.* 

Doctrine  of  charitable  uses;  where  recog- 
nized.    3:  145.* 

When  charitable  trusts  void.     5:  35.* 

Gift  to  public  charity  favored  in  law.  3: 
148;*  4:  699;*   6:  511.* 

Purposes  of  trust;  when  separable.  5:  108.* 

Secret   trusts   for.     20:  465. 

Validity  of  bequests  for  masses.  25:  360; 
40:  717. 

\Vhen  trust  results  to  testator's  legatees  or 
next  of  kin.     5:  36.* 

Right  of  legislature  to  transfer  title  to  ces- 
tui que  trust.     5:  36.* 

Presumption  as  to  charitable  use  when  none 
declared.     5:  37.* 

§  2.  Uncertainty;    indefiniteness. 

As  to  object  of  charitv.  1:419;*  5:35,* 
42;*    12:  414.* 

Of  bequests.     3:149.* 

Uncertainty    as    to    beneficiaries.     3:  145;* 
4:  700;*   5:  40.* 
Where     beneficiarv      ascertainable.     5: 

41.*  ' 
Selection  of  beneficiary.     5:  41.* 
Beneficiary  not  in  being.     5:  41.* 

§  3.  Trustee;  gift  to  unincorporated  society. 

Municipal  corporation  as  trustee  of  char- 
itv. 7:765;*  13:217;* 
14:  09. 

Validity  of  gift  to  unincorporated  charitv. 
32:  62,5. 
Early  decisions.     32:  625. 
Right  to  take  real  estate  or  permanent 

fund.     .32:  625. 
Personal  property.     32:  628. 
Association  as  trustee.     32:  630. 
Statutes.     32:6.30. 

Effect  of  want  of  trustee.     5:  39.* 

Effect  of  subsequent  incorporation.     14:  410. 


§  4.  Administering;  cy  pres  doctrine. 

Power  of  court  to  require  trustee  to  execute 
trust.     5:  39.* 

Doctrine  of  cy  pres  stated.     5:  33;*  6:  147.* 
Applicability  of,  in  construction  of  wills. 

5:  34.* 
Exercise  of  cy  pres  power  by  courts  of 

equity.     5:  38. 
Giving  effect  to  general  intention  of  tes- 
tator.    5:  39.* 

Devising  scheme  to  carry  out  trust.     5:  40.* 

§  5.  Liability  of  charitable  institution. 

For  negligence.     23 :  200. 

Liability  to  assessment  of  property  o^  for 
local  improvements.  35 : 
37. 


CHARIVARI. 


Right  to  Drive  Away  Charivari  Party,  see 

Assault  and  Battery,  33. 
Instructions  as  to,  see  Trial,  787. 

One  participating  in  a  charivari  of  a 
wedding  party  cannot  recover  for  injuries 
inflicted  by  the  negligent  discharge  of  a  pis- 
tol by  a  coparticipant,  where  the  statute 
imposes  a  fine  upon  whoever  disturbs  the 
peace  of  a  family  or  neighborhood  by  loud 
and  unusual  noises,  or  disturbs  any  assem- 
bly of  people  met  for  a  lawful  purpose.  Gil- 
more  V.  Fuller,  198  111.  130,  65  K  E.  84, 

60:286 


CHARTERS. 


Of  Corporation,  see  Corporations,  III. 
Of  Municipality,  see  Municipal  Corporations, 
L  d. 


♦  •» 

CHARTERED  TRAIN. 

What  is,  see  Carriers,  1125. 

«-•-» . 

CHARTS. 

For  Schools,  see  Schools,  115. 
• ♦-•-♦ • 


'HASTISEMENT. 
Editorial  Notes. 

Homicide   by,   excessive   or    improper.     63: 
393. 


CHASTITY. 


Evidence  of  Reputation  as  to,  see  Evidence, 

1753-1757. 
Remarks  or  Publications  Affecting,  see  Libel 

^nd  Slander,  11.  b. 


CHATTEL  MORTGAGE.  I.— II.  b. 


451 


CHATTEL  MORTGAGE. 

I.  In  General. 
II.  Validity;   Consideration. 

a.  Generally. 

b.  Description  of  Property. 

c.  Property  Subject  to  Mortgage;  Af- 

ter-Acquired Property. 

d.  Possession;   Power  to  Sell. 
III.  Filing;   Recording;   Renewing. 

rV.  Effect;  Rights  of  Parties;  Priorities. 

a.  In  General. 

b.  Priorities. 

V.  Assignment;     Satisfaction;     Abandon- 
ment. 
VI.  Enforcement. 
VII.  Editorial  Notes. 

Note  Secured  by,  for  Part  of  Debt,  as  Accord 
and  Satisfaction,  see  Accord  and  Satis- 
faction, 11. 

Conflict  of  Laws  as  to,  see  Con&ict  of  Laws, 
I.  i. 

On  Crops  as  a  Severance,  see  Crops,  4. 

Copy  of,  as  Evidence,  see  Evidence,  797. 

Selection  by  Husband  of  Exempt  Property 
in  Giving,  see  Husband  and  Wife,  126. 

Effect  of,  on  Insured  Property,  see  Insur- 
ance, 385. 

Conclusiveness  on  Chattel  Mortgagee  of 
Judgment  on  Attachment,  see  Judg- 
ment, 299. 

Libelous  Charge  of  Giving,  see  Libel  and 
Slander,   52,   53. 

Distinguished  from  Assignment  for  Credi- 
tors, see  Assignments  for  Creditors,  5- 
12. 

Distinguished  from  Pledge,  see  Pledge  and 
Collateral  Security,  2. 

Pledgee's  Liability  for  Permitting  Lien  to 
Expire,  see  Pledge  and  Collateral  Se- 
curity, 25. 

Combined  with  Sale,  see  Sale,  42. 

Conversion  of  Mortgaged  Property,  see  Tro- 
ver, 11-13,  27. 


,  I.  In  General. 

1.  A  statute  requiring  a  mortgagee  to  war- 
rant that  he  will  not  require  the  mortgagor 
to  pay  the  tax  imposed  by  statute  upon  the 
interest  payable  under  the  mortgage  is  not 
applicable  to  a  mortgage  under  which  no  in- 
terest is  payable,  either  directly  or  indi- 
rectly. Salabes  v.  Castelberg,  98  Md.  645, 
57  Atl.  20,  64:  800 
Witnesses  to. 

See    also   infra,    51. 

2.  A  mortgagee  is  disqualified  from  being 
one  of  the  two  witnesses  to  a  chattel  mort- 
gage required  by  N.  D.  Rev.  Codes,  §  4738, 
by  reason  of  being  an  immediate  party  to 
the  instrument.  Donovan  v.  St.  Anthony  & 
D.  Elevator  Co.  8  N.  D.  585,  80  N.  W. 
772.  46:  721 


n.  Validity;   Consideration. 

a.  Generally. 

Right  of  Assignee  for  Creditors  to  Attack, 
see  Assignments  for  Creditors,  25. 


Giving  Preference,  see  Assignments  for  Cred- 
itors, 73-79. 

By  Insolvent  Corporation  to  Directors,  see 
Corporations,  786. 

Power  01  Vice  President  to  Make,  see  Cor- 
porations, 236. 

Following  State  Decision  as  to,  see  Courts, 
551,  552. 

Sufficiency  of  Proof  of,  see  Evidence,  2229. 

Right  of  Administrator  to  Disaffirm  Mort- 
gage, see  Executors  and  Administrators, 
60. 

Invalidity  under  Insolvent  Laws,  see  Insol- 
vency, 9. 

Validity  as  to  Receiver,  see  Receivers,  53. 

See  also  infra,  75. 

For  Editorial  Notes,  see  infra,  VII.  §  2. 

3.  A  chattel  mortgage  to  be  valid  must 
be  executed,  acknowledged,  and  recorded  ac- 
cording to  the  law  of  the  place  where  the 
property  is  located  at  the  time.  McFadden 
V.  Blocker,  2  Ind.  Terr.  260,  48  S.  W.  1043, 

58:  878 

4.  A  mere  general  creditor  without  any 
specific  lien,  although  made  a  party  defend- 
ant in  a  suit  to  foreclose  a  mortgage  on  the 
debtor's  chattels,  for  the  determination  of 
a  lien  claimed  by  him,  cannot  question  the 
validity  of  the  mortgage.  Wolcott  v.  Ash- 
enfelter,  5  N.  M.  442.  23  Pac.  780.       8:  691 

5.  A  relationship  between  a  mortgagor 
and  a  mortgagee  in  a  chattel  mortgage  will 
not  invalidate  it  as  against  other  creditors, 
if  the  mortgage  is  given  for  a  debt  that  is 
honestlv  due.  Noyes  v.  Ross,  23  Mont.  425, 
59  Pac."' 367,  47:  400 

6.  The  security  of  a  mortgage  is  not  af- 
fected by  statements  made  in  good  faith  by 
the  mortgagee  to  creditors  of  the  mortgag- 
or, that  the  latter  is  doing  a  good  business 
and  will  be  able  to  meet  his  obligations,  al- 
though the  statements  prove  to  be  untrue. 
Chafey  v.  Mathews,  104  Mich.  103,  62  N. 
W.  141,  2/:  558 
Mortgagee's  name  blank. 

7.  A  chattel  mortgage  in  which  the  name 
of  the  mortgagee  is  left  blank  is  of  no  effect 
as  against  a  subsequent  purchaser  of  the 
property,  where  the  same  formalities  are  re- 
quired as  in  case  of  real-estate  mortgages. 
Ferr  v.  Dpiiver  Mill.  &  M.  Co.  13  Colo.  406. 
22  Pac.  770.  6:  641 
Consideration. 

For  Editorial  Notes,  see  infra,  VII.  §  3. 

8.  The  release  of  an  indorser  or  surety  of 
a  promissory  note  on  a  pre-existing  debt, 
in  consideration  of  a  chattel  mortgage  on 
the  goods  of  the  maker,  is  a  valuable  con- 
sideration for  the  mortgage.  Henry  v. 
Vliet,  36  Neb.  138,  54  N.  W.  122,       19:  590 

b.  Description  of  Property. 

9.  A  sufficient  description  of  a  diamond 
ring  for  the  purpose  of  a  chattel  mortgage 
is  effected  by  specifying  the  weight  of  the 
stone,  the  style  of  setting,  and  the  house 
where  the  owner  resides  and  the  ring  is  to 
be  kept.  Salabes  v.  Castelberg,  98  Md.  645, 
57  Atl.  20,  64:  80C 

10.  The  description  of  the  property  in  a 


452 


CtiATTfiL  MORTGAGE.  11.  c. 


chattel  mortgage  as  "all  my  crop  of  com, 
cotton,  or  other  produce  that  I  may  raise, 
or  in  which  I  may  in  any  manner  have  an 
interest  for  the  year  1884,  in  Faulkner  coun- 
ty, Ark.,"  is  not  so  indefinite  and  uncertain 
that  it  cannot  be  made  certain  by  extrinsic 
evidence,  or  that  it  will  prevent  the  record 
of  the  mortgage  from  constituting  construc- 
tive notice.  Johnson  v.  Grisard,  51  Ark. 
410,  11  S.  W.  585,  3:  795 

11.  A  change  of  the  color  of  a  horse  which 
was  correctly  described  in  a  mortgage  when 
it  was  given  as  a  bay  horse,  but  which, 
from  natural  or  unnatural  causes,  became 
a  white  and  sorrel  spotted  horse,  without 
any  appearance  of  bay  whatever,  does  not 
defeat  the  rights  of  the  mortgagee  as 
against  a  person  who  purchased  the  horse 
after  his  change  of  color,  without  any  no- 
tice of  the  mortgage.  Turpin  v.  Cunning- 
ham, 127  N.  C.  508,  37  S.  E.  453,  51:  800 

12.  Under  a  mortgage  on  brick  described 
as  being  on  certain  lots  at  the  mortgagor's 
kiln,  the  latter  being  a  manufacturer  of 
brick,  but  not  designating  the  particular 
brick  mortgaged,  the  mortgagee  has  no  me- 
chanics' lien  on  a  building  in  the  erection  of 
which  brick  are  taken  from  the  kiln,  where 
the  mortgagor  testifies  that  he  was  contin- 
ually making  and  selling  brick,  and  does  not 
know  whether  the  brick  used  in  the  building 
were  made  before  or  after  the  execution  of 
the  mortgage,  as  in  such  case  the  mortgage 
is  invalid  as  against  other  claims  or  lien- 
holders.  Meredith  v.  Kunze,  78  Iowa,  111, 
42  N.  W.  619,  4:  455 

c.  Property  Subject  to  Mortgage;  After- Ac- 
quired Property. 

Fixtures,  see  Fixtures. 

By  De  Facto  Corporation,  see  Corporations, 

156. 
Effect  of  Mortgage  on  Right  of  Stoppage  in 

Transitu,  see  Sale,  144. 
See  also  infra,  80. 
For  Editorial  Notes,  see  infra,  VII.  §§  4,  6. 

13.  A  ring  for  the  finger,  although  an  ar- 
ticle of  personal  adornment,  is  a  proper  sub- 
ject for  a  chattel  mortgage.  Salabes  v. 
Castelberg,  98  Md.  645,  .57  Atl.  20.        64:  800 

14.  A  valid  chattel  mortgage  may  be  made 
by  the  owner  of  property  in  possession  of 
another  under  an  execution.  Gardner  v. 
Bunn,  132  111.  403,  23  N.  E.  1072,  7:  729 
After-acquired    property    or    things    not    in 

esse  generally. 

15.  A  mortgage  of  after-acquired  property 
is  good  and  valid;  and  the  lien  of  the  mort- 
gage attaches  as  soon  as  the  property  is 
acquired  bv  the  mortgagor.  Akers  v.  Row- 
an. 33  S.  C.  451,  12  S.  E.   165.  10=  705 

16.  A  mortgage  of  chattels  to  be  acquired 
is  not  valid  against  one  who  takes  actual 
possession  of  thorn  under  another  mortgage 
executed  by  tlie  mortgagor  after  they  are 
acquired  by  him.  New  England  Nat.  Bank 
v.  Northw'estern  Xat.  Bank,  171  Mo.  307. 
71  S.  W.  191,  60:  256 

17.  A  deed  of  trust  on  a  stock  of  goods, 
executed  in  good  faith  to  secure  a  bona  fide 


debt,  and  extending  to  cover  ai'ter-acquired 
property,  duly  recorded,  is  not  fraudulent 
per  se,  or  prima  facie  fraudulent,  as  to  sub- 
sequent creditors  with  notice,  in  equity. 
Homer-Gaylord  Co.  v.  Fawcett,  50  W.  Va. 
487,  40  S.  E.  564,  57:  869 

18.  A  mortgage  executed  in  the  name  of 
a  third  person,  on  chattels  not  yet  acquired 
by  the  mortgagor,  which  does  not  purport  to 
cover  after-acquired  property,  does  not  bind 
such  properi^y  as  against  a  mortgage  to  an- 
other person,  executed  by  the  mortgagor  in 
his  own  name,  after  the  property  has  come 
into  his  possession.  New  England  Nat. 
Bank  v.  Northwestern  Nat.  Bank,  171  Mo. 
307,  71  S.  W.  191,  60:  256 

19.  An  instrument  which  assumes  to  con- 
vey or  encumber  a  thing  not  in  esse  is  a 
mere  executory  contract  which  does  not, 
"without  a  new  intervening  act,"  create  any 
legal  right  to,  or  interest  in,  the  thing  to 
whidi  it  relates.  Battle  Creek  Valley  Bank 
V.  First  Nat.  Bank,  62  Neb.  825,  88  N.  W. 
145,  56:  124 
Future  earnings. 

For  Editorial  Notes,  see  infra,  VII.  §  4. 

20.  Claims  for  money  not  yet  earned  may 
be  the  subject  of  a  valid  chattel  mortgage. 
Sandwich  Mfg.  Co.  v.  Robinson,  83  Iowa, 
567,  49  N.  W.  1031,  14:  126 

21.  A  mortgage  on  threshing-machine  ac- 
counts not  yet  earned  is  void  as  to  them  for 
lack  of  definite  description,  where  they  are 
described  only  as  all  such  accounts  which 
shall  be  earned  up  to  the  time  the  mortgage 
debt  is  fully  paid  by  a  threshing-machine 
which  is  also  included  in  the  mortgage.  Id. 
Future  crops. 

Contract   for  Interest   in  Future  Crops   of 

Peaches,  see  Contracts,  373. 
Effect  of  Mortgagor's  Death,  see  Contracts, 

770. 
For   Editorial   Notes,   see   infra,   VII.    §§   2, 

4,   10. 

22.  A  mortgage  of  future  crops  for  suc- 
cessive years  is  invalid  to  pass  any  interest 
in  a  crop  planted  after  the  current  year 
in  which  the  mortgage  was  executed.  Loftiir 
v.  Hines,  107  N.  C.  360,  12  S.  E.  197,  10:  490 
Increase  of  animals. 

For  Editorial  Notes,  see  infra,  VII.  §   1. 

23.  A  provision  in  a  mortgage  of  domestic 
animals,  assuming  to  give  the  mortgagee  a 
lien  upon  the  increase  to  be  thereafter  be- 
gotten, is  nothing  more  than  an  agreement 
for  a  lien,  which,  without  possession,  vests 
no  legal  right  to,  or  interest  in,  such  in- 
crease. Battle  Creek  Valley  Bank  v.  First 
Nat.  Bank.  62  Neb.  825,  88  N.  W.  145, 

.56:  124 
Articles  not  yet  manufactured. 
For  Editorial  Notes,  see  infra,  VII.  §  4. 

24.  A  mortgage  on  chattels  afterwards 
manufactured  does  not  give  the  mortgagee 
a  sufficient  title  to  sustain  an  action  for  con- 
version. Deeley  v.  Dwight,  132  N.  Y.  59, 
30  N.  E.  258,  18:  298 

25.  A  mortgage,  in  a  lease  of  a  brickyard, 
upon  clay  and  materials  for  brick,  as  well  as 
manufactured  brick,  will  not  create  a  lien 
on  the  clay  that  has  not  been  manufactured 
or  in  any   way  set  apart  for  that  purpose 


CHA.TTEL  MORTGAGE,  II.  d. 


468 


T.  B.   Townsend  Brick  &  C.  Co.  v.  Allen, 
62  Kan.  311,  62  Pac.  1008,  52:  323 

d.  Possession;  Power  to  Sell. 

Permitting  Mortgagee  to  Take  Possession, 
as  Act  of  Bankruptcy,  see  Bankruptcy, 
6. 

Parol  Evidence  as  to,  see  Evidence,  1009. 

See  also   supra,  14. 

Permitting  mortgagor  to  retain  possession 

or  sell  generally. 
Change  of  Possession  of  Pledge,  see  Pledge 

and  Collateral  Security,  3-12. 
Change   of   Possession   of   Personalty   Sold, 

see  Sale,  I.  b. 
Conclusiveness  on  Mortgagee  of  Warranty 

by  Mortgagor,  see  Sale,  59. 
See  also  infra,  42,  49. 
For  Editorial  Notes,  see  infra,  VII.  §§  2,  5. 

26.  At  common  law  no  valid  mortgage 
could  be  made  unless  the  custody  and  pos- 
session of  the  property  were  delivered  to  and 
retained  by  the  mortgagee.  McFadden  v. 
Blocker,  2  Ind.  Terr.  260.  48  S.  W.  1043, 

58:  878 

27.  Permitting  a  mortgagor  to  remain  in 
possession  of  chattels  xmtil  forfeiture  does 
not  give  him  such  a  badge  of  ownership  that 
an  innocent  purchaser  from  him  will  have 
an  equity  superior  to  that  of  the  mortgagee. 
National  Bank  of  Commerce  v.  Morris,  114 
Mo.  255,  21  S.  W.  511,  19:  463 

28.  An  agreement  that  the  mortgagor  of 
Chattels  may  remain  in  possession,  and  sell 
or  dispose  of  the  mortgaged  property  for 
his  own  use,  renders  the  mortgage  fraudu- 
lent as  to  creditors,  whether  the  agreement 
is  contained  in  the  instrument,  or  is  inde- 
pendent of  it.  Hangen  v.  Hachemeister,  114 
N.  Y.  566.  21  N.  E.  1046,  5:  137 

20.  The  presumption  of  fraud  created  by 
the  mortgagor's  retention  of  possession  of 
mortgaged  property  where  the  mortgage  is 
not  recorded  is  not  conclusive  in  Oregon, 
where  the  statutes  have  not  materially 
changed  the  common  law  on  that  subject. 
Marks  v.  Miller,  21  Or.  317,  28  Pac.  14, 

14:  190 

30.  A  mortgage  on  a  stock  of  merchandise 
under  which  the  mortgagor  remains  in  pos- 
session and  is  allowed  to  sell  the  goods  for 
his  own  benefit,  is  A-oid  as  against  his  credi- 
tors; and  it  is  immaterial  whether  he  sells 
any  of  the  goods  or  not,  as  the  tacit  agree- 
ment or  understanding  that  he  may  sell,  and 
not  the  sale  itself,  is  what  vitiates  the  en- 
cumbrance. Hangen  v.  Hachemeister,  114  N. 
Y.  566,  21  N.  E.  1046.  5:  137 

31.  An  indemnity  chattel  mortgage  upon 
a  stock  of  goods  is  not  void,  as  matter  ol 
law,  in  favor  of  creditors  of  the  mortgagor, 
because  of  an  extraneous  agreement  that  he 
may  continue  to  sell  the  goods  in  the  usual 
course  of  trade,  and  use  the  proceeds  to  re- 
plenisli  the  stock  and  defray  the  expenses 
of  the  business,  applying  the  balance  in  dis- 
charge of  the  mortgage  indebtedness,  under 
a  statute  giving  him  the  right  to  possession 
until  foreclosure  and  sale;  its  invalidity  de- 


pends upon  the  finding  of  fraud  as  a  matter  . 
of  fact.     Ephraim  v.  Kelleher,  4  Wash.  243, 
29  Pac.  985,  18:  BU4 

32.  A  chattel  mortgage  covering  a  stock 
of  goods  and  store  fixtures  is  valiil  as  to  the 
fixtures,  in  the  absence  of  actual  fraudulent 
intent  on  the  part  of  the  mortgagee,  though 
void  as  to  the  goods  by  reason  of  a  pro- 
vision allowing  the  mortgagor  to  retain  and 
sell  them.  Hayes  v.  Westcott,  91  Ala.  143, 
8  So.  337.  11:48S 

33.  A  provision  for  the  retention  of  pos- 
session by  a  mortgagor  of  a  stock  of  goods, 
with  the  right  to  sell  them  in  the  ordinary 
and  usual  course  of  trade,  does  not  make  the 
instrument  invalid,  provided  it  appears  that 
the  sales  are  to  be  for  the  benefit  of  the 
mortgagee,  and  the  mortgagor  is  to  account 
to  him  for  the  proceeds  of  the  sales.  Noyes 
V.  Ross,  23  Mont.  425,  59  Pac.  367,  47:  400 
Credit  sales  by  mortgagor. 

34.  Credit  sales  should,  under  a  Chattel 
mortgage  of  a  stock  of  goods  permitting  the 
mortgagor  to  retain  possession  and  sell  for 
cash  or  credit,  all  be  deemed  cash  payments 
paid  over  to  apply  on  the  debt,  in  favor  of 
other  creditors  of  the  mortgagor,  although 
they  are  in  fact  imcollected  at  the  time  of 
the  accounting.  Noyes  v.  Ross,  23  Mont. 
425,  59  Pac.  367,  47:400 

35.  A  provision  tbat  a  mortgagor  may 
give  credit  for  thirty  days  on  sales  from  a 
mortgaged  stock  of  goods,  for  which  he  is 
to  account  to  the  mortgagee,  does  not  show 
bad  faith,  or  make  the  mortgage  invalid. 

Id. 
Mortgagor's  retention  of  part  of  proceeds. 

36.  A  reasonable  monthly  allowance  to  a 
mortgagor,  provided  for  in  a  chattel  mort- 
gage as  compensation  for  his  services  to  the 
mortgagee  after  the  latter  takes  possession, 
will  not  make  the  mortgage  fraudulent. 
Noyes  v.  Ross,  23  Mont.  425,  59  Pac.  367, 

47:  400 

37.  A  provision  that  a  mortgagor  of  a 
stock  of  goods  may  retain  his  necessary  liv- 
ing expenses  out  of  the  proceeds  of  sales  for 
which  he  is  to  account  to  the  mortgagee 
does  not  make  the  mortgage  invalid.  Id. 
Effect  of  mortgagee's  taking  possession. 
For  Editorial  Notes,  see  infra,  VII.  §§  5,  8. 

38.  Delivery  of  chattels  to  a  mortgagee 
cures  all  defects  in  the  mortgage.  Garner 
V.  Wright,  52  Ark.  385,  12  S.  W.  785, 

6:  715 

39.  A  chattel  mortgage  by  a  man  to  his 
wife,  which  is  fair  on  its  face  and  given  to 
secure  an  honest  claim,  will  be  valid  if  she 
takes  possession  of  the  property  two  days 
after  it  is  given,  and  retains  control  until 
after  an  attachment  is  levied  on  the  stock, 
retaining  the  proceeds  of  sales  upon  her 
claim,  and  not  receiving  them  for  the  bene- 
fit of  the  mortgagor.  Sabin  v,  Wilkins,  31 
Or.  450,  48  Pac.  425,  37:  465 

40.  A  mortgagee  of  chattels  who  has  them 
in  possession  does  not  lose  his  security  by 
lending  them  to  the  mortgagor,  although  the 
mortgage  is  not  filed  or  recorded.  Gamer  v. 
Wright,  52  Ark.  385,  12  S.  W.  785,      6:  715 


454 


CHATTEL  MORTGAGE.  III. 


in.  Filing;   Recording;   Renewing. 


For  Editorial  Notes,  see  infra,  VII.  §§2,  5, 
10. 

41.  An  adjudication  in  voluntary  insolven- 
cy, pursuant  to  the  debtor's  allegation  of  his 
inability  to  paj'  all  his  debts  in  full,  is  suffi- 
cient to  show  that  fact,  if  any  such  showing 
is  necessary,  for  the  purpose  of  asserting  the 
invalidity  ot  a  chattel  mortgage  because  not 
promptly  recorded.  Ruggles  v.  Cannedy,  127 
Cal.  2!)0,  53  Pac.  911,  46:  371 
Necessity  of  filing  or  recording. 
Recording  of  Pledge,  see  Pledge  and  Collat- 
eral Security,  11,  12. 

Receiver's  Power  to  Set  Aside  Unrecorded 
Mortgage,  see  Receivers,  53. 

Necessity  of  Recording  Contract  of  Condi- 
tional Sale,  see  Sale,  43-46. 

See  also  supra,  28,  40. 

For  Editorial  Not«8,  see  infra,  VU.  §  10. 

42.  The  interest  given  general  creditors  of 
an  insolvent  estate  by  statutes  providing  for 
its  distribution  is  sufficient  to  entitle  them, 
through  the  administrator,  to  attack  a  chat- 
tel mortgage  thereon  not  recorded  before  the 
death  of  the  mortgagor,  under  a  statute  pro- 
viding that  no  mortgage  of  personal  proper- 
ty, where  the  mortgagor  retains  actual  pos- 
session thereof,  is  valid  as  against  existing 
creditors,  unless  recorded.  Blackman  v. 
Baxter,  125  Iowa,  118,  100  N.  W.  75,    70:  250 

43.  Actual  notice  of  the  existence  of  an 
unrecorded  mortgage  creates  no  lien  as  to 
strangers,  under  a  statute  providing  that 
the  mortgage  shall  be  a  lien  from  the  time 
it  is  filed  for  record,  and  not  before.  Mc- 
Fadden  v.  Blocker,  3  Ind.  Terr.  224,  54  S.  W. 
873,  58:  894 

44.  A  warehouse  receipt  is  subject  to  a 
statute  respecting  the  acknowledgment  and 
recording  of  an  assignment  of  goods  by  way 
of  mortgage,  when  the  receipt  is  issued  by 
a  debtor  upon  his  own  property  in  his  own 
possession,  as  a  pledge  to  secure  his  debt. 
Franklin  Nat.  Bank  v.  Whitehead,  149  Ind. 
560,  49  N.  E.  592,  39:  725 
Sufficiency. 

See  also  supra,  3. 

45.  The  failure  to  record  with  a  chattel 
mortgage  a  receipt  agreeing  to  surrender  it 
in  case  of  failure  to  procure  the  discharge 
of  a  prior  mortgage  does  not  prevent  the 
record  of  the  mortgage  from  operating  as 
notice  to  third  persons  to  whom  the  mort- 
gagor sells  the  property.  National  Bank  of 
Commerce  v.  Morris,  114  Mo.  255,  21  S.  W. 
511,  19:  463 
Time. 

See  also  infra,  76. 

46.  A  chattel  mortgage  filed  as  soon  as 
possible  takes  eff'ect  from  delivery  as  against 
an  intermediate  attachment,  where  the  stat- 
ute makes  it  void  as  against  creditors  and 
subsequent  purchasers  or  lien  holders,  unless 
it  shall  be  "forthwith"  filed.  Baker  v.  Smel- 
ser,  88  Tex.  26.  29  S.  W.  377,  33:  163 

47.  A  chattel  mortgage  is  filed  "forth- 
with" as  required  by  statute  when  filed  ns 
soon  as  the  proper  office  opens  in  the  morn- 
ing after  its  delivery,  which  was  at  night. 

Id. 


48.  A  chattel  mortgage  withheld  from  ree- 
ord  beyond  a  time  reasonably  necessary  for 
its  prompt  recordation  is  void  against  cred- 
itors whose  claims  have  arisen  between  the 
date  of  its  execution  and  the  date  of  its  re- 
cordation, even  if  they  have  acquired  no  lien, 
under  Cal.  Civ.  Code,  §  2957,  making  the  rec- 
ord a  condition  of  the  validity  of  such  a 
mortgage  as  against  creditors.  Ruggles  v. 
Cannedy,  127  Cal.  290,  53  Pac.  911,      46:  371 

49.  One  who  sells  another  goods  on  credit 
during  the  interval  between  the  making  and 
recording  of  a  mortgage  on  the  latter's  stock 
in  favor  of  a  third  person,  under  which  no 
possession  was  taken,  and  who,  after  the 
recording  of  such  mortgage,  takes  another 
mortgage  on  the  stock  to  secure  his  claim, 
under  which  he  takes  possession,  has  a  right 
to  the  stock  which  is  superior  to  that  of  the 
first  mortgage,  under  How.  Stat.  §  6193. 
Dempsey  v.  Pforzheimer,  86  Mich.  652,  49 
N.  W.  465,  13:  388 
Place. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

295-299. 
See  also  infra,  55. 
For  Editorial  Notes,  see  infra,  VU.  §  10. 

50.  The  recordation  of  a  mortgage  upon 
personal  property  which  is  removed  from  one 
county  to  another  before  the  mortgage  is  re- 
corded must,  to  be  valid  against  creditors, 
be  in  the  latter  county,  under  Cal.  Civ.  Code, 
§  2959,  which  provides  for  its  record  in  the 
county  in  which  the  mortgagor  resides,  "and 
also  in  the  county  in  which  the  property  is 
situated  or  to  which  it  may  be  removed," 
and  §  2965,  which  provides  that  in  case  mort- 
gaged property  shall  thereafter  be  removed 
to  another  county  it  must  be  recorded  with- 
in thirty  days  after  removal,  the  latter  sec- 
tion not  applying  to  property  removed  be- 
fore the  mortgage  is  recorded.  Fassett  v. 
Wise,  115  Cal.  316,  47  Pac.  47,  36:  505 
Effect. 

See  also  infra,  59,  75,  76. 

For  Editorial  Notes,  see  infra,  VII.  §  10. 

51.  The  filing  of  a  chattel  mortgage  which 
is  witnessed  only  by  the  mortgagee  and  one 
other  person,  while  the  statute  requires  two 
witnesses,  does  not  operate  to  give  construc- 
tive notice  of  its  existence.  Donovan  v.  St. 
Anthony  &  D.  Elevator  Co.  8  N.  D.  585,  80 
N.  W.  772,  46:  721 

52.  The  filing  of  a  chattel  mortgage  for 
record  does  not  impart  constructive  notice 
to  a  commission  merchant  to  whom  the 
mortgaged  property  is  sent  for  sale,  and  who 
sells  it  and  pays  the  proceeds,  less  his  com- 
mission, to  his  consignor.  Greer  v.  Newland. 
70  Kan.  310,  77  Pac.  98,  70:  554 
Mortgage  by  nonresident. 

53.  No  valid  record  can  be  made  of  chattel 
mortgages  where  the  mortgagor  resides  out 
nf.  and  the  property  is  within,  the  state, 
under  a  statute  providing  for  the  recording 
'if  mortgages,  but  omitting  to  provide  for 
pases  where  the  mortgagor  resides  out  of  the 
-tate.  '  ^IcFadden  v.  Blocker,  2  Ind.  Terr. 
200,  48  S.  W.  1043,  58:  878 

54.  An  amendment  of  the  law  providing 
for  the  recording  of  mortgages,  so  as  to  per- 
mit the  record  of  a  chattel  mortgage  execut- 


CHATTEL  MORTGAGE.  IV.  a. 


46S 


ed  by  a  nonresident,  which  could  not  then  be 
done,  will  not  perfect  the  lien  of  an  existing 
mortgage  as  against  the  lien  of  a  pending 
attachment  suit,  although  the  amendment 
provides  that  all  mortgages  theretofore  ex- 
ecuted and  recorded  shall  be  valid,  and  the 
mortgage  was  actually  recorded  before  the 
suit  was  begun.  Id. 

55.  The  recording  of  a  chattel  mortgage  is 
of  no  effect  under  a  statute  requiring  its 
record  at  the  mortgagor's  place  of  .residence, 
where  the  property  is  situated  within,  but 
the  mortgagor  resides  out  of,  the  state.    Id. 

56.  Failing  to  provide  for  the  recording  of 
chattel  mortgages  executed  by  nonresidents 
on  property  within  the  state,  when  providing 
for  recording  those  executed  by  residents, 
does  not  require  tbe  treatment  of  the  former 
class  as  at  common  law,  so  that  the  trans- 
action can  be  upheld,  as  against  persons 
with  notice,  by  showing  its  fairness.  Mc- 
Fadden  v.  Blocker.  3  Ind.  Terr.  ^24,  54  S.  W. 
873.  "•  58:  894 
RenewaL 

Validity  of,  as  Unlawful  Preference,  see  As- 
signments for  Creditors,  73. 
For  Editorial  Notes,  see  infra,  VII.  §  10. 

57.  Affidavits  for  renewal  of  a  perpetual 
mortgage  need  not  state  the  amount  of  ma- 
tured indebtedness  if  the  obligations,  ma- 
tured and  unmatured,  exceed  the  amount  of 
the  mortgage.  Chafev  v.  Mathews,  104 
Mich.  103,  62  N.  W.  141,  27:  558 

58.  An  affidavit  of  a  renewal  of  a  chattel 
mortgage  in  favor  of  a  corporation  after  it 
is  received  and  filed  by  the  register  of  deeds 
of  the  county  is  not  void,  so  as  not  to  impart 
constructive  notice  of  the  lien  of  the  mort- 
gage, by  reason  of  the  fact  that  the  affidavit 
is  sworn  to  before  a  notary  public  who  is 
an  officer  and  stockholder  in  said  corpora- 
tion. Fair  v.  Citizens'  State  Bank,  70  Kan. 
612,  79  Pac.  144,  67:851 

59.  A  chattel  mortgage  regular  upon  its 
face,  duly  filed  for  record,  and  accompanied 
by  an  affidavit  of  renewal,  filed  in  proper 
time,  and  regular  upon  its  face,  and  regular 
in  fact,  except  for  the  latent  defect  that 
the  notary  public  who  administered  the 
path  was  a  stockholder  in  the  mortgagee 
corporation,  imparts  notice  as  fully  as  if 
such  defect  did  not  exist.  Id. 

60.  Where  a  firm  consisting  of  two  part- 
ners being  the  owners  of  horses,  executed  a 
chattel  mortgage  on  them  to  plaintiff,  which 
was  duly  filed,  and  afterwards  one  of  the 
partners  sold  his  interest  in  the  horses  to 
the  other,  and  received  from  him  a.  chattel 
mortgage  on  them  to  secure  the  purchase 
money,  and  died  before  the  time  for  renew- 
ing the  first  mortgage,  and,  after  the  time 
for  renewing  it,  his  administrator  took  the 
horses  under  the  latter  mortgage,  the  plain- 
tiff, although  he  neglected  to  renew  his 
mortgage  by  filing  the  affidavit  to  renew 
the  same,  required  by  Wis.  Rev.  Stat.  §  2315, 
may  recover  the  horses  of  defendant  after 
a  demand  and  refusal,  although  creditors 
had  filed  claims  with  him  against  the  estate 
of  his  intestate:  such  recovery  being  sub- 
ject to  the  right  of  the  surviving  partner, 
or  of  the  defendant,  as  administrator,  to  re- 


deem them  from  plaintiffs  mortgage,  by  pay- 
ing the  debt  it  was  given  to  secure.  Ullman 
V.  Duncan.  78  Wis.  213,  47  N.  W.  266,    9:  683 

«1.  Under  Wis.  Rev.  Stat.  §  2315,  which 
provides  for  renewing  chattel  mortgages,  the 
only  effect,  as  to  creditors,  of  a  failure  to  re- 
new a  chattel  mortgage,  is  to  render  it  in- 
valid as  against  such  creditors  of  the  mort- 
gagor as  obtain  liens  upon  the  property  aft- 
er the  time  expires  to  renew  the  mortgage. 

Id. 

62.  A  subsequent  mortgagee  with  notice  of 
prior  mortgage  is  not  a  subsequent  mortga- 
gee in  good  faith  as  to  whom  the  refiling  of 
a  chattel  mortgage  is  necessary,  under  Kan. 
Gen.  Stat.  1889,  If  3905,  the  words  "subse- 
quent purc'hasers"  and  "subsequent  mort- 
gagees in  good  faith,"  in  Tf  3905,  mean  only 
purchasers  and  mortgagees  who  purchased 
or  took  their  mortgages  after  the  expiration 
of  the  year  from  the  filing  of  the  mortgage. 
Howard  v.  First  Nat.  Bak,  44  Kan.  549,  24 
Pac.   983,  10:  537 


IV.  Effect;   Rights  of  Parties;  Prioritiea. 
a.  In  General. 

Form  of  Action  against  Commission  Mer- 
chant Selling  Mortgaged  Property,  see 
Election  of  Remedies,  20. 

What  Constitutes  Fixtures  as  Between 
Mortgagor  and  Mortgagee,  see  Fixtures. 

Mortgagee's  Rights  in  Proceeds  of  Insurance 
Procured  by  Donee,  see  Insurance,  1164. 

Mortgagee's  Right  to  Maintain  Trover,  see 
Trover,  4,  5. 

Rights  of  Mortgagee  against  Warehouseman, 
see  Warehousemen,  15. 

See   also  infra,  92. 

63.  That  a  mortgage  of  railroad  stock  was 
given  by  the  state,  which  owned  a  majority 
of  the  stock,  does  not  bind  the  state  to  use 
its  controlling  interest  in  the  road  exclusive- 
ly in  the  interest  of  its  mortgagees  of  the 
stock,  or  to  impress  the  earnings  received 
by  the  lessor  of  the  road  with  a  trust  for 
the  benefit  of  such  mortgagees.  Gibson  v. 
Richmond  &  D.  R.  Co.  37  Fed.  743,       2:  467 

64.  Railroad  bondholders  to  whom  stock  of 
the  corporation  has  been  mortgaged  as  col- 
lateral security  cannot  maintain  a  suit  in 
equity  to  charge  the  lessor  of  the  mortgaged 
road  with  the  earnings  derived  under  the 
lease,  when  such  lease  is  not  alleged  to  be 
void  or  voidable  as  between  the  parties  to 
it.  Id. 

65.  A  chattel  mortgage  on  real  estate  cre- 
ates no  lien  thereon,  as  Idaho  Rev.  Stat.  § 
3385,  as  amended,  limits  chattel  mortgages 
to  property  other  tnan  real  estate.  Beeler 
V.  C.  C.  Mercantile  Co.  8  Idaho,  644,  70  Pac. 
943,  60:  283 

66.  The  title  to  mortgaged  chattels  re- 
mains in  the  mortgagor  under  the  Nebraska 
statute  until  foreclosure  of  the  mortgage. 
Drummond  Carriage  Co.  v.  Mills,  54  Neb. 
417,  74  N.  W.  966,  40:761 

67.  After  condition  broken,  the  mortgagee 
under  a  chattel  mortgage  is  the  owner  of  the 


456 


CHATTEL  MORTGAGE,  IV.  b;  V. 


property  covered  by  the  mortgage,  and  the 
mortgagor  has  only  a  right  of  redemption. 
St.  Marys  Machine  Co.  v.  National  Supply 
Co.  1  Ohio  St.  535,  67  N.  E.  1055,       64:  845 

68.  Where  a  receiver  is  appointed  and 
takes  possession  of  chattels  covered  by  a 
chattel  mortgage,  after  condition  broken,  as 
provided  in  Ohio  Rev.  Stat.  1892,  §  3206a, 
such  chattels,  to  the  extent  that  the  same 
may  be  required  to  satisfy  the  mortgage, 
are  the  property  of  the  mortgagee,  and  not 
of  the  mortgagor.  Id. 

69.  A  mortgagee  of  personal  property  in 
possession  after  condition  broken  is  the  le- 
gal owner  entitled  to  retain  the  possession, 
subject  to  a  liability  to  account  for  the  sur- 
plus of  its  value  after  the  satisfaction  of  his 
own  claim.  Root  &  McB.  Bros.  v.  Davis,  51 
Ohio  St.  29,  36  N.  E.  669,  23:  445 

70.  The  possession  of  a  trustee  in  a  deed 
of  trust  which  has  been  accepted  by  the 
beneficiaries  will  authorize  him  to  maintain 
a  suit  to  protect  the  property  from  attach- 
ing creditors  without  joining  all  the  bene- 
ficiaries. Tittle  V.  Vanleer,  89  Tex.  174,  34 
S.  W.  715,  37:337 

71.  The  fact  that  one  of  the  debts  secured 
by  chattel  mortgage  was  due  at  the  time  the 
mortgage  was  given  does  not  nullify  the  de- 
feasance clause  so  as  to  make  the  instru- 
ment absolute  before  demand  and  refusal  to 
pay.  Brown  v.  Grand  Rapids  Parlor  Fur- 
niture Co.  7  C.  C.  A.  225,  58  Fed.  286,  16  U. 
S.  App.  221,  22:  817 

71a.  The  interest  of  a  vendee  of  goods  by 
conditional  sale  will  pass  under  a  mortgage 
of  all  his  stock,  so  that  the  mortgagee  may 
maintain  replevin  for  them  against  an  in- 
solvency receiver  claiming  them  for  the  bene- 
fit of  all  creditors.  Chafey  v.  Mathews,  104 
Mich.  103,  62  N.  W.  141,  27:  558 

Mortgage  of  vessel. 

72.  A  mortgagee  of  a  vessel,  who  after  de- 
fault takes  possession,  and  thereupon  con- 
sents that  the  mortgagor  may  make  two 
trips  with  the  vessel  in  consideration  of  the 
assignment  to  him  of  the  entire  freight  or 
earnings  of  the  vessel  upon  the  trips,  exclu- 
sive of  charges  for  towage,  is  entitled  to  the 
net  earnings  of  the  vessel  after  payment  of 
claims  and  expenses  for  a  trip,  where,  be- 
fore it  was  completed,  the  vessel  was  seized 
and  a  subsequent  mortgagee  paid  off  the 
claims  upon  it  and  brought  the  vessel  to 
port.  Kimball  v.  Farmers  &  M.  Bank,  138 
N.  Y.  500,  34  N.  E.  337,  20:  497 

73.  The  rights  of  a  first  mortgagee  of  a 
vessel  who  has  not  taken  possession  do  not 
affect  the  rights  of  the  second  and  third 
mortgagees,  as  between  themselves,  to  the 
profits  from  the  use  of  the  vessel,  where 
the  second  mortgagee  has  taken  possession 
and  there  has  been  a  default  on  all  the 
mortgages.  Id. 

b.  Priorities. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
292-204. 

Over  Lien  for  Rent,  see  Landlord  and  Ten- 
ant, 221. 

Over  Agister's  Lien,  see  Liens,  17-22. 


Over  Lien  for  Labor  or  Repairs,  see  liens, 

23-25. 
See  also  supra,  12,  18,  46,  49,  54. 
For  Editorial  Notes,  see  infra,  VII.  §  10. 

74.  A  chattel  mortgage  to  secure  a  pre- 
existing debt  is  a  mortgage  in  good  faith 
within  the  meaning  of  N.  J.  act  1889,  so  as 
to  be  entitled  to  priority  over  an  unrecord- 
ed contract  of  sale  of  which  the  mortgagee 
had  no  notice.  Knowles  Loom  Works  v. 
Vacher  (N.  J.  Sup.)  57  N.  J.  L.  490,  31  Atl. 
306,  33:  305 

75.  The  recital  of  a  chattel  mortgage  in  a 
subsequent  mortgage  upon  the  same  prop- 
erty, which  is  duly  recorded,  is  not  notice 
to  third  parties  of  the  lien  of  the  former 
mortgage, — especially  where  the  first  mort- 
gage is  ineffectual  by  reason  of  the  omis- 
sion therefrom  of  the  mortgagee's  name. 
Herr  v.  Denver  Milling  &  M.  Co.  13  Colo.  406, 
22  Pac.  770,  6:  641 

76.  A  chattel  mortgage  delivered  uncon- 
ditionally by  the  mortgagor  to  an  unauthor- 
ized third  person,  by  whom  under  the  mort- 
gagor's directions  it  is  filed  for  record,  takes 
effect,  as  between  the  mortgagor  and  mort- 
gagee, from  the  time  of  the  first  delivery; 
but  it  takes  effect  as  to  a  second  mortgagee, 
who  receives  his  mortgage  before  such  ac- 
ceptance, only  from  the  time  of  its  accept- 
ance by  the  mortgagee.  Rogers  v.  Head's 
Iron  Foundry,  51  Neb.  39,  70  N.  W.  527, 

37:  429 

77.  A  lessor's  mortgage  of  his  interest  in 
crops  raised  by  a  tenant  on  leased  land  and 
still  in  the  possession  of  the  tenant  and  un- 
divided gives  the  mortgagee  a  right  para- 
mount to  that  of  the  creditors  of  the  mort- 
gagor under  garnishment  proceedings  subse- 
quent to  the  mortgage.  Riddle  v.  Dow,  98 
Iowa,  7,  66  N.  W.  1066,  32:  811 

78.  Necessary  expenses  incurred  in  culti- 
vating and  completing  a  crop  by  one  who 
has  a  deed  of  trust  upon  it  may  give  a  prior 
right  of  payment  out  of  the  crop,  even  if 
any  of  such  expenses  are  incurred  outside 
of  the  contract.  Cox  v.  Martin,  75  Miss. 
229,  21  So.  611,  36:  800 

79.  A  bona  fide  purchaser  for  value  and 
without  notice  of  a  mortgage  given  without 
any  consideration  and  which  is  not  accom- 
panied by  any  negotiable  obligation  holds 
it  as  a  valid  encumbrance  as  against  cred- 
itors of  the  mortgagor,  since  his  equities  are 
at  least  equal  to  theirs,  and  in  such  case  the 
legal  title  prevails.  Economv  Savings  Bank 
v.  Gordon,  90  Md.  486,  45  Atl.   176,     48:  63 

80.  A  mortgage  by  the  holder  of  a  bill  of 
sale  of  chattels  which  the  seller  did  not  at 
the  time  possess  is  not  notice  to  one  who 
takes  a  mortgage  from  the  seller  upon  chat- 
tels which  he  has  purchased  to  fill  the  re- 
quirements of  the  bill  of  sale,  since  it  is 
outside  of  the  chain  of  the  latter's  tji^le. 
New  England  Nat.  Bank  v.  Northwestern 
Nat.  Bank,  171  Mo.  307,  71  S.  W.  191, 

60:  256 


V.  Assignment;  Satisfaction;  Abandonment. 

Effect  of  Mortgagors  Death,  see  Contracts, 
770. 


CHATTEL  MORTGAGE,  VI. 


457 


Assignment. 

Assignee's  Right  of  Action  on  Indemnify- 
ing Bond  to  Sheriflf,  see  Parties,  87. 

81.  An  assignment  of  a  chattel  mortgage 
may  be  made  by  an  indorsement  on  the  mar- 
gin thereof.  Hodges  v.  Wilkinson,  111  N.  C. 
56,  15  S.  E.  941,  17:545 

82.  One  who  pays  for  the  maker  a  note  se- 
cured oy  a  chattel  mortgage,  and  receives 
a  new  note  and  mortgage  therefor,  cannot 
claim  as  assignee  of  the  former  mortgage 
when  his  own  proves  defective,  if  the  orig- 
inal intention  was  to  cancel  the  former  note 
and  mortgage.  Herr  v.  Denver  ililling  &  M. 
Co.  13  Colo.  406,  22  Pac.  770,  6:  641 
Satisfaction;  discharge. 

Payment  of  Indebtedness  by  Taking  Notes, 
see  Payment,  10. 

Agreement  to  Cancel,  Inuring  to  Third  Per- 
son, see  Pledge  and  Collateral  Security, 
31. 

Keeping  Tender  Good,  s«e  Tender,  10. 

83.  The  taking  of  a  second  mortgage  to 
secure  the  same  debt  secured  by  a  first  mort- 
gage, and  upon  the  same  property,  does  not 
operate  as  a  satisfaction  and  release  in  law 
of  the  first  mortgage.  Howard  v.  First  Nat. 
Bank,  44  Kan.  549,  24  Pac.  983,  10:  537 

84.  To  extinguish  the  lien  of  a  chattel 
mortgage  by  a  tender,  the  proof  should  be 
clear  that  the  tender  was  fairly  made  and 
deliberately  and  intentionally  refused  by  the 
mortgagee,  that  sufficient  opportunity  was 
afiforded  for  the  latter  to  ascertain  the 
amount  due,  and  that  a  sum  sufficient  to 
cover  the  whole  amount  due  was  absolutely 
and  unconditionallv  tendered.  Moore  v. 
Norman,  43  Minn.  428,  45  N.  W.  857,    9:  55 

85.  Tender  of  the  amount  due  upon  a 
promissory  note  secured  by  a  chattel  mort- 
gage, though  made  after  the  note  has  ma- 
tured, extinguislhes  and  discharges  the  lien 
of  the  mortgage.  Id. 

86.  A  demand  for  the  surrender  of  notes 
will  prevent  a  tender  from  being  effectual 
so  as  to  discharge  a  chattel  mortgage  secur- 
ing the  notes,  where  the  creditor  in  good 
faith  claims  that  a  larger  sum  is  due. 
Moore  v.  Norman.  52  Minn.  83,  53  N.  W. 
809,  18:  359 
Abandonment;  waiver. 

For  Editorial  Notes,  see  infra,  VII.  §  7. 

87.  The  delivery  of  mortgaged  property  by 
the  mortgagee  to  a  stranger  is  not  an  aban- 
donment of  the  lien  of  the  mortgage.  Rog- 
ers V.  Heads  Iron  Foundry,  51  Neb.  39,  70 
N.  W.  527,  37:  429 

88.  The  lien  of  a  chattel  mortgage  upon 
property  exempt  from  execution  is  not 
waived  by  obtaining  judgment  upon  the 
notes  secured  by  the  mortgage  and  levying 
upon  the  mortgaged  property  under  execu- 
tion thereon,  although  the  exempt  property 
is  set  off  to  the  debtor  as  such;  but  sucn 
lien  may  be  enforced  under  the  terms  oi  the 
mortgage  in  a  jurisdiction  where  the  mort- 
gage creates  only  a  lien  and  does  not  trans- 
fer the  legal  title,  as  there  is  no  such  incon- 
sistency between  remedies  as  there  would 
be  where  the  levy  asserted  title  in  the  mort- 
gagor while  the  enforcement  of  the  mortgage 


claimed  title  in  the  mortgagee.    Barchard  v. 
Kohn,  157  111.  579,  41  N.  E.  902,  29:  803 

89.  The  levy  of  an  attachment  upon  prop- 
erty covered  by  a  chattel  mortgage,  although 
the  plaintiff  knows  of  the  mortgage  and  has 
bought  it  for  the  purpose  of  enabling  him 
to  attach  the  property,  will  constitute  a 
waiver  of  the  lien  of  the  mortgage,  since 
the  liens  under  the  mortgage  and  the  attach- 
ment are  so  different  and  inconsistent  that 
they  cannot  exist  at  the  same  time,  partic- 
ularly in  favor  of  the  same  person.  Dix  v. 
Smith,  9  Okla.  124,  60  Pac.  303,  50:  714 


VI.  Enforcement. 

Statutory  Limitations  on  Right  of,  see  Con- 
stitutional Law,  696,  697. 

Exclusiveness  of  Jurisdiction,  see  Courts, 
421,  422. 

Presumption  as  to,  see  Evidence,  668. 

Intervention  by  Attachment  Creditors  in  Ac- 
tion for,  see  Parties,  218. 

See  also  supra,  68. 

For  Editorial  Notes,  see  infra,  VII,  §  9. 

90.  Taking  possession  of  mortgaged  chat- 
tels and  selling  them  at  once  is  authorized 
by  a  chattel  mortgage  which  provides  that 
the  mortgagee  may  take  possession  and  sell 
whenever  he  "shall  choose  to  do  so," — espe- 
cially when  the  statute  provides  that  the 
mortgagee  is  entitled  to  possession  in  the  ab- 
sence of  stipulation  to  the  contrary, — ^not- 
withstanding the  fact  that  the  mortgage  is 
given  to  secure  notes  which  are  payable  at 
different  times  in  the  future.  Robison  v. 
Gray,  90  Iowa,  699,  57  N.  W.  614,      23:  780 

91.  A  stipulation  in  a  chattel  mortgage 
authorizing  the  mortgagee  to  take  posses- 
sion of  the  mortgaged  property  upon  failure 
of  the  mortgagor  to  make  payments  secured 
thereby  is  not  contrary  to  public  policy,  and 
will  authorize  the  mortgagee  to  take  peace- 
able possession  of  the  property,  even  against 
the  will  of  the  mortgagor.  Singer  Mfg.  Co. 
v.  Rios,  96  Tex.  174,  71  S.  W.  275,    60:  143 

92.  Creditors  who  have  no  title  or  right 
of  possession  to  mortgaged  property  cannot 
complain  that  the  mortgagee  takes  posses- 
sion thereof  and  sells  at  auction  before  the 
maturity  of  his  debt,  and  without  any  au- 
thority contained  in  his  mortgage  to  sell  at 
that  time.  Noyes  v.  Ross,  23  Mont.  425,  59 
Pac.  367,  47:  400 

93.  Under  a  mortgage  securing  several 
notes,  which  provides  that  in  case  of  default 
in  payment  of  one  and  sale  of  the  mortgaged 
property  the  mortgagee  may  appropriate 
the  fund  to  the  payment  of  the  amount  of 
principal  and  interest  hereby  secured,  where 
some  of  the  notes  have  been  defaulted,  an 
attachment  of  property  not  included  in  the 
mortgage  has  been  made  to  collect  the 
amount  due  on  them,  and  a  sale  made  un- 
der the  mortgage,  the  mortgagee  may  ap- 
propriate the  fund  realized  from  such  sale 
to  notes  not  due,  in  order  to  rean  the  bene- 
fit of  the  attachment  by  applying  its  pro- 
ceeds upon  the  matured  notes.  Hutchings  v. 
Reinhalter,  23  R.  L  518,  51  Atl.  429,    58:  680 


458 


CHATTEL  MORTGAGE,  VII.  (Ed.  Notes.) 


VII.  Editorial  Notes. 


§  I.  In  general;  what  constitutes. 

Conflict  of  laws  as  to  chattel  mortgages. 
64:  353. 

On  buildings  on  leased  premises.    21:  348. 

What  constitutes.     6:  641.* 

Sale;  when  not  construed  a  mortgage.  1: 
240.* 

When  transaction  deemed  a  chattel  mort- 
gage rather  than  a  condi- 
tional sale.     6:  643.* 

Sale  of  chattels  absolute  on  its  face  shown 
by  parol  to  be  intended  as 
a  mortgage.    6:  643.* 

Title  in  mortgagee.     6:  641.* 

Mortgaging  or  pledging  property  as  a 
ground  of  attachment. 
30:  479. 

Personal  liability  of  purchaser  of  property 
subject  to.    59:  737. 

Title  to  increase  of  animals  as  between 
mortgagee  of  dam  and 
other  claimants.     17:  82. 

Garnishment  of  claim  to  surplus  on  chattel 
mortgage.     59:  370. 

§  2.  Execution,  validity,  construction. 

Delivery  and  acceptance.     6:  642.* 

Registration  and  filing  as  equivalent  to  de- 
livery.   13:  388.* 

Description  of  goods.    3:  795.* 

Retaining  possession  of  chattels  by  mort- 
gagor.    5:  137.* 

Assumption  of  individual  debts  of  partner 
by  mortgage  of  partner- 
ship property.    29:  692. 

When  fraudulent.    5:  137.* 

Retention  of  possession  by  mortgagor. 

6:  138.* 
Retention  of  possession  with  power  of 
sale.     5:  139.* 

Right  of  creditors  at  large  to  assail  mort- 
gage.    5:  140.* 

On  crops  generally.     10:  490.* 

§  3.  Pre-existing  debt  as  consideratioT  for. 

As  against  other  creditors  or  equities.     33: 
305. 
As  against  prior  claims.    33:  305. 
As  against  subsequent  claims.     33:  308. 
Of  purchasers  and  mortgagees.    33: 

308. 
Judgments   and    attachments.    33: 
309. 
Where  there  was  an  extension  of  time 
or    a    new    consideration. 
33:  309. 

To  give  rights  as  a  bona  fide  purchaser  or 
mortgagee.     19:  590. 

§  4.  On  what  property. 

Future  crops.     23:  450. 

Future  accounts  or  earnings.     14:  126. 

Efficacy  of  mortgage  on  chattels  to  be  manu- 
factured   or    acquired,    as 
independent    articles,    and 
not    as    the    increase    or 
fruits  of   existing  proper- 
ty.    18:  298. 
The  general  rule.     18:  298. 
Effect  as  between  the  parties.     18:  298. 
Effect  of  further  act  to  perfect  title  in 
mortgagee.     18:  298. 


Property  contemplated  as  additions  to 

other  property.    18:  299. 
The    exception    established    by    equity. 

18:  300. 
Application  of  the  equitable  exceptions. 

18:  301. 
Where   the  equitable  exception  is   not 

recognized.     18:  302. 
The  attitude  of  courts  of  law  towards 
the      equitable      doctrine. 
18:  302. 
Sufficiency  of  record  notice.     18:  303. 
The   effect  of  Holroyd  v.   Marshall  in 
England.     18:  303. 
On  buildings  upon  leased  premises.    21:  347. 
§  5.  On  stock  of  merchandise. 
Property  covered.     13:  390.* 
Effect  of  a  provision  or  agreement  giving 
the  mortgagor   possession 
with   power  of   sale.     18: 
604. 
Mortgage  srhowing  possession  with  pow- 
er of  sale.    18:  605. 
Stipulation    that    mortgagor    may 
dispose    of    proceeds.    18: 
605. 
Possession  with  power  of  sale  sim- 
ply.    18:  606. 
Attempting     to     cover     future-ac- 
quired property.    18:  606. 
Provisions  as  to  keeping  up  stock. 

18:  607. 
Provisions  for  paying  busdness  and 

living  expenses.    18:  607. 
Construction    of    particular    mort- 
gages.   18 :  608. 
Effect    of   extraneous    agreement.      18: 
608. 
Kind  of  agreement  necessary.     18: 

609. 
Effect   of   evidence  of  good   faith. 
18:  609. 
Sales  by  mortgagor  as  agent  for  mort- 
gagee.    18:  609. 
Requirement   to    account    for   pro- 
ceeds.    18:  609. 
Construction    of    particular    mort- 
gages.   18:610. 
Application  of  proceeds.    18:  610. 
How  far  the  instrument  is  void  in  toto. 

18:  610. 
Effect  of  recording  acts.     18:  610. 
Effect  of  statutes  making  fraud  a  ques- 
tion for  the  jury.    18:  611. 
Effect  of  mortgagee's  taking  possession. 

18:  611. 
Analysis  of  the  law  in  different  juris- 
dictions.    18:  611. 
§  6.  Efficacy   of   chattel   mortgage   on   fix- 
tures. 
Generally.     15:  56. 

Afl  against  mortgagor  and  persons  consent- 
ing to  or  recognizing  them 
as  valid.     15:  56. 
As  agaanst  landlord.     15:  56. 
As  against  real-estate  mortgage.     15:  57. 
Effect  of  execution  of  chattel  mortgage  be- 
fore annexation.     15:  57. 
Effect  of  agreement  that  articles  shall  re- 
main chattels.     15:  58. 
Execution  of  mortgage  as  evidence  of  agree- 
ment.    15:  59. 


CHATTELS— CHECKS. 


459 


Effect  of  chattel  mortgage  as  against  sub- 
sequent purchaser  or  en- 
cumbrancer.   15:  61. 

Filing  mortgage  as  constructive  notice.  15: 
61. 

Prior  New  Hampshire  decisions.    15:  63. 

§  7.  Loss  or  waiver  of  lien. 

Waiver  of  lien  of,  by  attachment  or  execu- 
tion.    50:  714. 

Effect  of  unaccepted  tender  on  lien  of.    33: 
231. 
Generally.    33:  235. 
Before  and  at  maturity.    33:  235. 
After  maturity.     33 :  235. 
By   whom   made.     33:  236. 
Sufficiency.     33:  236. 

In  amount.     33:  236. 
Made  on  condition.     33:  236. 
Other  instances.     33:  237. 
Equivalent   of  tender.     33:237. 
Remedy  of  the  mortgagor.    33:  237. 

§  8.  Effect   of   "danger,"   "safely,"   or   "in- 
security" clause. 

Generally.    23:  780. 

Right  to  interfere  with  third  persons.  23: 
780. 

Effect  of  taking  possession.     23:  781. 

How  far  right  is  without  control.     23:  781. 

The  effect  of  malice.    23:  783. 

Pacts  which  justify  taking  possession.  23: 
783 

Selling.     23:784. 

Construction  of  different  provisions  and  cir- 
cumstances.    23:  784. 

Other  rights  conferred.    23:  784. 

§  g.  Enforcement;  remedies. 

Chattel  mortgagee  as  real  party  in  interest 
by  whom  action  relating 
to  property  must  be 
brought.    64:  618. 

Effect  of  provision  authorizing  mortgagee 
to  take  possession  when  he 
deems  himself  insecure. 
17:  209. 

Amount  in  dispute  in  case  of  injunction  to 
restrain  enforcement  of, 
against  specific  property. 
61 :  785. 

Injunction  against  execution  sale  of  mort- 
gaged chattels.    30:125. 

On  vessel;  jurisdiction  of  admiralty  as  to. 
66:  200,  234. 

§  10.  Priority;  filing;  recording;  renewal. 

Priority  as  between  agister's  lien  and  chat- 
tel mortgage.     17:  792. 

Priority  of  mortgages  on  buildings  upon 
leased  premises.     21:  348. 

Necessity  of  filing  or  recording  as  between 
parties.     13:  388.* 

Validity  and  effect  of  unrecorded  chattel 
mortgage.     13:  388.* 

Effect  of  actual  notice  of  unrecorded  mort- 
gage.     13:  389.* 

Necessity  and  effect  of  recording  mortgage 
of  future  crops.     23:  463. 

Retroactive  effect  of  filing  chattel  mortgages 
for  record  in  regard  to 
liens  acquired  on  the  same 
property  after  the  execu 
tion  of  the  mortgage.  33: 
163. 


Failure  to  record  as  fraud  on  other  credi- 
tors.    31 :  638. 

Necessity  of  filing  or  recording  in  state 
where  property  located. 
64:  361. 

Necessity  of  refiling  or  re-recording  in  state 
to  which  property  re- 
moved after  execution  of 
mortgage.    64:  356. 

Renewal  of  mortgage;  rules  in  different 
states.     13:  389.* 


CHATTELS. 


Mortgage  on,  see  Chattel  Mortgage. 
Liens  on,  see  Liens. 
Sale  of,  see  Sale. 

Editorial  Notes. 

Liability  to  servants  of  other  persons  for 
injuries  caused  by  con- 
dition  of.     46:  104. 


CHEATING. 


Conspiracy    for,    see    Conspiracy,    16,    17; 

Contracts,  600. 
By  Means   of  False    Pretenses,    see    False 

Pretenses. 
Indictment  for,  see  Indictment,  etc.,  103. 


CHECKS. 

I.  In  General;   Nature  of. 
II.  Presentation. 

III.  Certification. 

IV.  Bona  Fide  Holders. 
V.  Forged  Paper. 

VL  Editorial  Notes. 

As  Accord  and  Satisfaction,  see  Accord  and 

Satisfaction,  15,  and  also  infra,  VI.  §  3. 
For   Individual   Debt   of   Corporate   Officer, 

see  Assumpsit,  44. 
Given  by  Bailee  for  Goods,  see  Bailment,  37, 

38. 
Liability    of     Payee     Indorsing     Duplicate 

Check  Given  for  One  Lost,  see  Banks, 

67. 
Indorsing  "for  Deposit,"  see  Banks,  308,  and 

also  infra,  VI.  §  1. 
Right  of  Holders  of,  on  Bank's  Insolvency, 

see  Banks,  329-332. 
On  Savings  Bank,  Payment  of,  see  Banks. 

369-378. 
As  Equitable  Assignment,  see  Banks,  90  and 

also  infra,  VL  §  3. 
As  to  Duties  and  Liability  of  Bank  With 

Respect  to,  see  Banks,  IV.  a,  3,  VIII.  §§ 

10,  11,  14,  16. 
Collection  of,  see  Banks,  IV.  b,  VIIL  §§  14, 

15. 
Payable  on   '         •  juent  Day,  see  Bills  and 

Notes,  1 


460 


CHECKS,  L,  11. 


Depositor  Giving  Check  to  Bank  for  Ne- 
gotiable Paper  Purchased,  as  Bona  Fide 
Purchaser,  see  Bills  and  Notes,  254. 

Indorsements  by  Secretary  of  Loan  As- 
sociation, see  Building  and  Loan  As- 
sociations, 3. 

For  Draw  Back  to  Passenger,  see  Carriers, 
633,  634,  637. 

Of  Cashier,  see  Cashier's  Checks. 

Law  Governing  Collection  of,  see  Conflict 
of  Laws,  43. 

EflFect  of  Principal's  Indorsement  of,  see 
Contracts,  214. 

Tender  of,  as  Compliance  with  Contract  to 
Transmit  Money,  see  Contracts,  318. 

For  Subscription  on  Condition,  see  Con- 
tracts, 836. 

Punitive  Damages  for  Refusal  to  Honor,  see 
Damages,  54. 

Measure  of  Damages  for  Nonpayment,  see 
Damages,  164-167,  572. 

Presumption  as  to  Bank  Drawn  on,  see  Evi- 
dence, 678. 

Presumption  as  to  Payment  of,  see  Evi- 
dence, 734. 

Parol  Evidence  of  Agreement  to  Surrender, 
see  Evidence,  1180. 

Evidence  as  to  Deposit  of,  see  Evidence, 
2181. 

Proof  of  Drawer's  Isrnorance  of  Bank's  In- 
solvency, see  Evidence,  2286. 

Obtaining  Property  by  Giving  of,  see  False 
Pretenses,  6;  Indictment,  etc.,  23,  24. 

Effect  of,  to  Prevent  Garnishment,  see 
Garnishment,  30,  and  also  infra,  VI. 
§  3. 

Gift  of,  see  Gift,  10,  19,  38. 

Interest  on,  see  Interest,  16,  78. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  89.  184,  185. 

Limitation  of  Action  for  Wrongful  Refusal 
to  Pay,  see  Limitation  of  Actions,  202. 

Imputing  to  Principal,  Agent's  Knowledge 
as  to  Cashier's  Checks,  see  Notice,  45. 

For  Special  Partner's  Contribution,  see 
Partnership,  155. 

Bank's  Right  to  Recover  Amount  Paid  to 
Payee,  see  Parties,  9. 

Payment  bv,  see  Payment,  13-20,  and  also 
infra.  VL  §  5. 

Agent's  Authority  to  Indorse,  see  Principal 
and  Agent,  32-39,  64,  and  also  infra, 
VL  §  1. 

In  Payment  of  Wages,  see  Statutes,  460. 

Subrogation  of  Bank  Paying,  see  Subro- 
gation, 26. 

Delivery  by  Telegraph  Company  to  Wrong 
Party,  see  Telegraphs,  44. 


T.  In  General;  Nature  of. 

For  Editorial  Notes,  see  infra,  VI.  §  1. 

1.  It  is  an  essential  characteristic  of  a 
check  that  it  be  payable  on  demand.  Har- 
rison V.  Nicollet  Nat.  Bank,  41  Minn.  488. 
43  N.  W.  336,  5:  746 

2.  An  instrument  must  be  treated  as  a 
check,  which  is  headed  by  the  name  of  a 
bank  and  a  date,  and  over  the  signature  of 
the    cashier   directs   the     payment     to    the 


order  of  a  third  person  of  a  certain  amount 

of  cash,  while  at  the  bottom  of  the  paper 

it  is  directed  to  a  banking  firm.     Exchange 

Bank  v.  Sutton  Bank,  78  Md.  577,  28  Atl. 

563,  23:  173 

Negotiability. 

Negotiability  of  Bills  or  Notes,    see    Bills 

and  Notes,  I.  d. 
For  Editorial  Notes,  see  infra,  VI.  §  2. 

3.  A  bank  check  is  a  negotiable  instru- 
ment although  it  does  not  recite  any  con- 
sideration. Famous  ^hoe  &  C.  Co.  v.  Cross- 
white,  124  Mo.  34,  27  S.  W.  397,  26:  568 

4.  A  statute  declaring  that  a  promissory 
note  shall  be  negotiable  as  an  inland  bill 
of  exchange,  when  expressed  to  be  for  value 
received,  does  not  prevent  a  check  from 
being  negotiable  without  those  words.     Id. 

5.  A  cashier's  check  drawn  by  a  banker 
upon  himself  "to  the  order  of"  another  per- 
son is  a  negotiable  instrument.  Henry  v. 
Allen,  151  N.  Y.  1,  45  N.  E.  355,        36:  658 


n.  Presentation. 

For  Editorial  Notes,  see  infra,  VI.  §  6. 

What  is  a  reasonable  time  for. 

For  Editorial  Notes,  see  infra,  VI.  §  6. 

6.  The  holder  of  a  check  is  under  obli- 
gation to  an  indorser  thereon  to  present  it 
for  payment  not  later  than  the  next  day 
after  its  date.  Carroll  v.  Sweet,  128  N.  Y. 
19,  27  N.  E.  763,  13:  43 

7.  It  is  the  duty  of  the  holder  of  a  check, 
if  he  receives  it  after  banking  hours,  to 
present  it  during  banking  hours  of  the  next 
day,  if  the  bank  is  located  in  the  same 
town;  if  not,  then  to  forward  it  by  mail 
the  next  day.  Edminsten  v.  Herpolsheira- 
er.  66  Neb.  94,  92  N.  W.  138,  59:  934 

8.  A  check  must  be  presented  not  later 
than  the  day  following  its  receipt,  in  order 
to  hold  the  drawer  liable,  in  the  absence  of 
special  circumstances,  where  the  payee  re- 
ceives it  in  the  place  in  which  the  bank  on 
which  it  is  drawn  is  located.  Id. 

9.  That  a  check  is  drawn  on  a  bank  in  a 
city  where  the  collection  of  such  paper  is 
made  through  a  clearing  house,  and  the 
check  is  received  after  banking  hours,  does 
not  relieve  the  payee  of  the  necessity  of 
presenting  it  the  following  day.  Id. 
Necessity  of. 

For  Editorial  Notes,  see  infra,  VI.  §  6. 

10.  A  check  given  by  an  insolvent  to  a 
creditor  cannot  be  collected  after  the  insolv- 
ent's death,  without  previous  presentment 
of  certification.  Bernard  v.  Whitnev  Nat. 
Bank,  43  La.  Ann.  50,  8  So.  702,  'l2:  302 
Mode  of. 

For  Editorial  Notes,  see  infra,  VI.  §  6. 

1 1 .  A  check  is  properly  presented  to  a 
bank  for  payment  where  the  notary  public 
takes  it  to  the  bank  during  banking  hours 
for  the  purpose,  and  upon  finding  the  doors 
clnscfl  makes  a  demand  upon  the  bank 
president,  although  the  Comptroller  of  the 
Currencv  has  taken  charge  of  the  bank. 
Niblaek'v.  Park  Nat.  Bank,  169  111.  517,  48 
N.  E.  438,  39:  159 


CHECKS,  It. 


461 


12.  It  is  negligence  in  the  holder  of  a 
check  to  send  it  directly  to  the  drawee  re- 
siding in  a  distant  place  for  payment;  and 
the  holder  is  responsible  for  any  loss  oc- 
casioned by  adopting  such  course.  Ander- 
son V.  Rodgers,  53  Kan.  542,  36  Pac.  10G7, 

27 1  248 

13.  Sending  a  cheek  by  an  indirect  route 
will  not  constitute  negligence  in  presenting 
it,  if  it  reaches  its  destination  as  soon  as 
if  sent  direct,  taking  the  full  time  allowed 
by  law  for  mailing  it.  First  Nat.  Bank  v. 
Buckhannon  Bank,  80  Md.  475,  31  Atl.  302, 

27:  332 
Effect  of  delay. 
Burden   of    Proving   Harmlessness     of,    see 

Evidence,  679,  680. 
See  also  Payment,  20. 
For  Editorial  Notes,  see  infra,  VI.  §  6. 

14.  Delay  in  presenting  a  check  for  pay- 
ment does  not  release  the  drawer  unless 
some  loss  has  resulted  to  him  frola  the  de- 
lay. Merritt  v.  Gate  City  Nat.  Bank,  100 
Ga.  147,  27  S.  E.  979,  38:  749 

15.  The  indorser  of  a  check  is  released  by 
failure  to  present  it  for  several  days,  dur- 
ing which  the  bank  fails  and  the  collection 
of  the  check  is  rendered  impossible,  when 
there  was  a  deposit  out  of  which  it  would 
have  been  paid  if  promptly  presented. 
Kirkpatrick  v.  Puryear,  93  Tenn.  409,  24 
S.  W.  1130,  22:  785 

16.  The  maker  of  a  check  which  the 
payee  fails  to  present  for  some  time  and 
until  after  the  bank  has  failed  is  damaged 
thereby  so  as  to  be  discharged  from  lia- 
bility on  the  check  where  at  the  time  of  the 
failure  he  had  general  and  special  deposits 
in  the  bank  for  which  he  holds  collateral 
security  which  would  be  insufficient  to  pay 
the  amount  which  would  remain  in  the  bank 
if  the  check  were  paid.  Hamlin  v.  Simpson, 
105  Iowa,  125,  74  N.  W.  906,  44:  397 

17.  Failure  of  the  payee  of  a  check  to 
promptly  present  the  same  to  the  bank  for 
payment  will  release  the  maker  from  lia- 
bility if  he  is  injured  thereby  where  the 
bank  subsequently  fails,  although  his  gen- 
eral deposit  in  the  bank  was  overdrawn  at 
the  time  where  he  had  a  special  deposit  in 
the  bank  and  had  reasonable  grounds  to  be- 
lieve that  the  check  would  be  paid  because 
of  a  promise  by  the  cashier  to  allow  him 
to  check  against   such  special  deposit.     Id. 

18.  The  payee  of  a  check  who  fails  to 
make  presentment  within  a  reasonable  time 
assumes  the  risk  of  loss  occasioned  by  the 
insolvency  of  the  drawee  occurring  in  the 
meantime.  Anderson  v.  Rodgers,  53  Kan. 
542,  36  Pac.   1067.  27:  248 

19.  Mere  failure  of  an  indorsee  to  pre- 
sent a  check  for  payment  for  eleven  months, 
during  which  time  the  maker  pays  the 
amount  to  the  payee  on  his  assurance  that 
the  check  is  mislaid  and  that  he  will  return 
it  when  found,  will  not  estop  him  from  en- 
forcing payment,  where  the  maker  Telied 
wholly  on  the  Avord  of  the  payee  in  making 
his  pavnient.  Bradley  v.  Andrus,  46  C.  C. 
A.  238]  107  Fed.  196,  "  53:  4.32 

20.  Delay  in  presenting  a  check  at  the 
drawer's  request,  whereby  its  collection  be- 


comes impossible  because  of  his  insolvency, 
operates  as  payment  up  to  the  amount  of 
the  check  in  favor  of  an  indorser  who  has 
transferred  it  to  the  holder  on  account  of 
an  antecedent  debt.  Carroll  v.  Sweet,  128 
N.  Y.  19,  27  N.  E.  763,  13:  43 

21.  A  check  on  an  open  bank  account  does 
not  constitute  an  assignment  of  the  fund, 
or  take  precedence  of  a  subsequent  at- 
tachment levied  on  the  fund  before  the 
check  is  presented  for  payment  or  brought 
to  the  notice  of  the  bank,  if  such  present- 
ment is  not  made,  or  notice  given,  within 
a  ■  reasonable  time.  Love  v.  Ardmore 
Stock  ICxchange,  5  Ind.  Terr.  202,  82  S.  W. 
721,  67:617 
Delay  in  presenting  check  taken  in  payment 

of  other  check. 

22.  Taking  a  substituted  check  from  the 
drawee  of  a  worthless  check  who  cannot 
cash  it,  and  then  failing  to  use  diie  dili- 
gence in  presenting  the  new  check,  on  which 
no  amount  of  diligence  could  have  obtained 
payment,  will  not  create  any  liability  to  the 
drawer  of  the  original  check.  First  Nat. 
Bank  v.  Buckhannon  Bank,  80  Md.  475,  31 
Atl.  302,  27 :  332 

23.  To  hold  the  drawer  of  a  check  liable 
after  a  collecting  bank  has  surrendered  it 
to  the  drawee  bank  and  taken  for  it  the 
latter's  check  on  a  third  bank,  the  utmost 
diligence  to  present  the  substituted  check 
for  payment  must  be  exercised  by  the  col- 
lecting bank.  Anderson  v.  Gill,  79  Md.  312. 
29  Atl.  527,  25:  200 

24.  The  fact  that  the  loss  would  have 
fallen  on  the  depositor  if  a  check  held  for 
collection  had  not  been  presented  sooner 
than  was  necessary,  where  the  bank  failed 
before  the  time  for  collecting  it  expired, 
does  not  relieve  the  collecting  bank  ot  lia- 
bility for  the  loss,  if,  having  presented  the 
check  before  such  failure  and  accepted  the 
drawee's  check  on  another  bank  in  pay- 
ment, it  delays  presenting  the  latter  until 
it  is  Avorthless  because  of  the  failure  of  its 
drawer.  Id. 

25.  A  bank  which  cashes  a  check,  and 
duly  sends  it  for  collection  to  its  corre- 
spondent, whose  runner  duly  presents  it, 
with  other  checks,  to  the  drawee,  receiving 
in  payment  the  latter's  check  drawn  on  an- 
other bank  in  the  same  city,  which  check 
is  dishonored  because  not  presented  for 
two  or  more  hours,  during,  which  time  the 
drawee  fails,  cannot  recover  from  an  ac- 
commodation indorser  of  the  original  check, 
even  though  it  is  subsequently  reclaimed 
and  dulv  protested.  Comer  v.  Dufour,  95 
Ga.  376,'22  S.  E.  543.  30:  .300 
What  will  excuse  failure  to  present. 

20.  Presentation  of  a  check  for  payment, 
and  notice  to  the  drawer  of  nonpayment, 
are  unnecessary  when  the  drawer  has  or 
leaves  no  ftmds  on  deposit  for  its  payment 
at  the  time  when  it  should  be  presented,  or 
if  he  consents  or  agrees  that  the  same  shall 
not  be  presented  for  payment.  Under  such 
circumstances  the  drawer's  liability  becomes 
fixed  at  that  time  without  presentation  and 
notice,  and  whatever  takes  place  afterwards 
in  the  state  of  his  account  at  the  bank  will 


462 


CHECKS.  III.,  IV. 


not  change  the  rights  of  the  parties.    Culver 
V.  Marks,  122  Ind.  554,  23  N.  E.  1086, 

7:489 

27.  Willingness  on  the  part  of  the  bank 
officials  to  pay  a  check  for  the  payment  of 
which  there  are  no  funds  on  deposit  will  not 
render  the  presentation  of  the  cheek  for 
payment  necessary  in  order  to  charge  the 
drawer.  Id. 

28.  Lack  of  money  of  the  drawer  in  a 
bank  to  meet  a  check,  where  he  would  have 
provided  for  it  or  paid  it  if  payment  had 
been  insisted  upon,  does  not  relieve,  the 
holder,  who  has  taken  it  from  an  indorser 
on  an  antecedent  debt,  from  his  obligation 
to  present  it,  or  prevent  his  failure  to  do  so 
until  collection  becomes  impossible  from 
operating  as  payment  to  the  amount  of  the 
cheek.  Carroll  v.  Sweet,  128  N.  Y.  19,  27  N. 
E.  763,  13:  43 
Necessity  of  notice  of  nonpayment. 

29.  A  bank  which  has  accepted  a  check 
on  deposit,  with  the  depositor's  indorse- 
ment, discharges  the  indorser  from  liability 
thereon  by  failing  to  notify  him  of  its  non- 
payment for  nearly  a  month,  notwithstand- 
ing it  was  lost  in  the  mail  when  forward- 
ed for  collection,  and  the  bank  waited  in 
the  hope  that  it  would  reach  its  destination. 
Aebi  v.  Bank  of  Evansville,  124  Wis.  73, 
102  N.  W.  329,  68:  964 


III.  Certification. 

Acceptance  of  Certified  Check  as  Novation, 

see  Novation,  2. 
Certified  Check  as  Pavment,  see  Payment, 

18. 
Tender  of  Certified  Check,  see  Tender,  6. 
For  Editorial  Notes,  see  infra,  VT.  §  4. 

Rights  and  liability  of  drawee. 

30.  By  the  certification  of  a  check,  the 
drawee  undertakes  absolutely  to  pay  it 
when  presented  at  any  time  within  that 
fixed  by  the  statute  of  limitations,  and  is 
estopped  to  deny  the  possession  of  funds. 
•Tackson  Paper  Mfg.  Co.  v.  Commercial  Nat. 
Bank,  199  111.  151,  65  N.  E.  136,  59:  657 

31.  A  bank  is  not  estopped  to  deny  its 
liability  on  a  check  which  it  has  certified, 
even  as  against  a  bona  fide  holder  for  value 
who  purchased  upon  the  faith  of  the  certifi- 
cation, where  it  •has  never  been  indorsed  by 
the  paj'ee.  Goshen  Nat.  Bank  v.  Bingham, 
118  N.  Y.  349,  23  N.  E.  180,  7:  595 

32.  A  bank  whose  certification  of  a  check 
has  been  procured  Dy  fraud  cannot  maintain 
an  action  to  recover  possession  thereof 
against  one  who  has  purchased  bona  fide 
and  for  value  from  the  payee,  but  who  took 
it  without  the   latter's  indorsement.         Id. 

33.  The  purchaser  of  a  check  made  pay- 
able to  the  drawer's  own  order,  the  certifi- 
cation of  which  has  been  procured  by  fraud, 
who  by  mistake  of  both  himself  and  the 
payee  takes  it  without  the  latter's  indorse- 
ment, holds  it  subject  to  all  defenses  which 
the  bank  would  have  against  it  in  the  hands 
of  the  payee,  even  although  he  pays  full 
value  for  it  without  notice  of  the   fraud; 


and  a  subsequent  indorsement  made  after 
the  purchaser  has  received  such  notice  will 
not  render  the  check  valid  in  his  hands, — 
at  least  in  the  absence  of  an  express  agree- 
ment to  indorse,  made  at  the  time  of  the 
transfer.  Id. 

Effect  of,  on  drawer's  liauility. 
For  Editorial  Notes,  see  infra,  VI.  §  4. 

34.  One  who  accepts  a  certified  check  in 
the  usual  course  of  business  does  not  as- 
sume the  risk  of  insolvency  of  the  bank 
upon  which  it  is  drawn;  but,  in  case  it 
proves  insolvent,  he  may  look  to  the  drawer 
for  payment.  Born  v.  First  Nat.  Bank,  123 
Ind.  78,  24  N.  E.  173,  7:  442 

35.  The  drawer  of  a  check,  who  gets  it 
certified  in  his  own  behalf  or  for  his  own 
benefit,  and  then  delivers  it  to  the  payee, 
is  not  discharged,  but  continues  liable, 
where  the  bank  fails  before  payment  of 
the  check,  Minot  v.  Russ,  156  Mass.  458,  31 
N.  E.  489,  16:  510 

36.  If  the  payee  or  holder  of  a  check  gets 
it  certified  in  his  own  behalf  or  for  his  own 
benefit,  instead  of  getting  it  paid,  the 
drawer  is  discharged, — especially  where  the 
certification  amounts  to  an  extension  of  the 
time  of  payment.  Id. 

37.  Certification  of  a  check  by  a  bank  on 
the  drawee's  application  releases  the  drawer. 
Metropolitan  Nat.  Bank  v.  Jones,  137  111. 
634,  27  N.  E.  533,  12:  492 

38.  Even  if  a  guaranty  by  one  bank  to 
another  for  clearing  house  purposes  is 
ultra  vires,  this  fact  will  not  avail  the 
drawers  of  a  certified  check  who  are  not 
parties  to  the  guaranty,  when  charged  with 
liability  to  the  bank,  which  in  compliance 
with  its  guaranty  had  paid  the  check  and 
become  an  assignee  thereof  after  the  drawee 
became  insolvent.  Voltz  v.  National  Bank, 
158  111.  532,  42  N  E.  69,  30:  155 


rV.  Bona  Fide  Holders. 

See  also  supra,  31-33. 

Who  are. 

Of  Bills  or  Notes,  see  Bills  and  Notes,  V.  b. 

Parol  Evidence  as  to,  see  Evidence,  1092. 

39.  One  may  be  a  bona  fide  holder  of  a 
cashier's  check  received  from  an  agent  by 
mail  in  return  for  checks  and  drafts  mailed 
to  the  agent  for  deposit  in  a  bank  under 
an  agreement  to  return  checks  therefor,  al- 
though he  parted  with  the  paper  deposited 
before  he  received  anything  in  exchange  and 
before  the  cashier's  check,  which  he  subse- 
quently received,  had  come  into  existence. 
Henry  v.  Allen,  151  N.  Y.  1,  45  N.  E.  355, 

36:  658 

40.  One  who  receives  a  check  from  the 
maker,  and  whom  the  maker  desisrnates  as 
nnvoe,  is  T^rima  ffi^ie  the  pavee  intended; 
and  a  purchaser  who  takes  the  check  from 
him  in  good  faith  upon  his  indorsement  is 
not  required  to  inquire  any  further  than 
may  be  necessary  to  establish  the  identity 
of  the  indorser  and  the  party  to  whom  the 
check  is  delivered  as  payee,  though  such 
party  is  in  fact  an  imposter.     Burrows  v. 


CHECKS,  v.,  VL 


46:', 


Western  U.  Teleg.  Co.  86  Minn.  499,  90  N. 
W.  nil,  58:  433 

41.  If  mortgaged  property  is  sold  and  is 
paid  for  by  check  payable  to  the  mortgagor, 
who  thereupon  indorses  and  delivers  it  to 
the  mortgagee  for  the  purpose  of  having 
the  proceeds  applied  upon  the  debt,  the  lat- 
ter is  not  a  bona  fide  holder  for  value  and 
without  notice  of  the  equities  which  may 
have  grown  out  of  the  falsity  of  representa- 
tions or  failure  of  a  warranty  of  the  qual- 
ity or  condition  of  the  property  sold.  Na- 
tional Citizens'  Bank  v.  Ertz,  83  Minn.  12, 
85  N.   W.   821,  53:  174 

42.  The  indorsement  and  delivery  of  a 
cashier's  check  by  the  payee  to  a  gambler 
in  payment  for  chips  to  be  used  in  gambling 
does  not  make  such  gambler  a  holder  in 
due  course;  and  his  title  so  acquired  is 
defective,  where  the  statutes  of  the  state 
expressly  prohibit  gambling.  Drinkall  v. 
Movius  State  Bank,  11  N.  D.  IQ,  88  N.  W. 
724,  "  57 :  341 
Rights  of. 

Of  Bills  or  Notes,  see  Bills  and  Notes,  V. 
a,   2. 

43.  A  bona  fide  purchaser  of  a  check  re- 
ceived in  the  regular  course  of  business 
from  one  who  fraudulently  obtained  and  in- 
dorsed it  in  an  assumed  name  can  recover 
thereon  against  the  maker  where  the  bank 
has  refused  payment  under  the  directions  of 
the  maker  after  he  discovered  the  fraud. 
Famous  Shoe  &  C.  Co.  v.  Crosswhite,  124 
Mo.  34,  27  S.  W.  397,  26:  568 

44.  The  custom  of  a  bank  to  require 
identification  of  one  who  presents  a  check, 
which  is  relied  upon  by  a  depositor  in  giv- 
ing a  check  to  one  not  personally  known  to 
him,  and  who  in  fact  is  dealing  fraudulent- 
ly in  an  assumed  name,  constitutes  no  de- 
fense in  favor  of  the  maker  against  a  bona 
fide  holder  of  the  check,  where  payment  is 
stopped  by  the  maker's  direction.  Id. 


V.  Forged  Paper. 

Payment  by  Bank,  of  Forged  Checks,  see 

Banks,  IV.  a,  3,  6. 
Estoppel  as  to,  see  Estoppel,  229-231. 
Burden  of  Showing  Negligence  of  Drawer, 

see  Evidence,  597a. 
What  Constitutes  a  Forgery,  see  Forgery,  9, 

10,  15. 
For  Editorial  Notes,  see  infra,  VI.  §  1. 

45.  A  payer  of  a  forged  check  is  not  ex- 
empted from  the  consequences  of  his  act 
by  Pa.  act  1849,  §  10,  providing  for  the  re- 
covery of  money  paid  on  forged  signatures, 
if  the  result  of  a  recovery  would  be  that  his 
own  negligence  would  occasion  loss  to  the 
payee.  That  act  only  applies  in  case  of  due 
care  on  his  part,  and  where  his  recovery 
will  not  cause  loss  to  the  payee.  Iron  City 
Nat.  Bank  v.  Fort  Pitt  Nat.  Bank,  159  Pa. 
46,  28  Atl.  195,  23^  615 

Payment  on  forged  indorsements. 
Bank's  Liability   as  to,   see   Banks,  IV.   a, 
3,  b,   (3). 


Estoppel  to  Set  up  Forgery,  see  Estoppel, 

164. 
See  also  supra,  40,  43. 

46.  The  fact  that  checks  are  taken  in  ab- 
solute extinguishment  of  debts  does  not  re- 
lieve the  drawer  from  his  legal  obligations 
to  the  payee  as  drawer,  when  the  checks 
have  been  stolen  from  the  payee  and  col- 
lected upon  a  forged  indorsement.  Shepard 
&  M.  Lumber  Co.  v.  Eldridge,  171  Mass 
516,  51  N.  E.  9,  41:617 

47.  Negligence  of  the  holder  of  an  unin- 
dorsed check  payable  to  his  own  order,  in  in- 
trusting it  to  a  clerk  who  he  might  have 
known,  by  the  exercise  of  due  care,  was  dis- 
honest, and  who  puts  it  in  circulation  by 
forging  an  indorsement  thereon,  does  not 
deprive  the  holder  of  his  remedy  against 
the  drawer.  Id. 

48.  Notice  of  the  loss  of  a  check  which 
has  been  stolen  and  collected  upon  a  forged 
indorsement  is  not  required  to  be  given  by 
the  payee  to  the  drawer  and  drawee  or  to 
the  public,  if  he  is  honestly  ignorant  of  the 
facts,  and  incorrectly,  but  honestly,  as- 
sumes that  the  check  has  been  collected  in 
the  regular  course  of  business.  Id. 
Warranty  of  genuineness  of  prior  indorse- 
ments. 

49.  The  indorser  of  checks  warrants  the 
genuineness  of  all  preceding  indorsements 
including  that  of  the  payee.  First  Nat. 
Bank  v.  Northwestern  Nat.  Bank,  152  111. 
296,  38  N.  E.  739,  26:  289 


VI.  Editorial  Notes. 

§  I.  Generally. 

As  to  Matters  between  Depositor  and  Bank, 
see  Banks,  VIIL  §§  10,  11. 

As  to  Collection  of,  see  Banks,  VIII.  §§  14, 
15. 

Nature  of.     7 :  595.* 

What  are.    7:489.* 

Drafts  on  bank  as.    23:  173. 

Duty  of  drawee  to  know  signature  upon. 
27:  635. 

Power  of  agents  to  indorse.     27:  401. 

Liability  of  person  whose  name  is  forged 
to.      36:  539. 

Limitation   of  actions   on.     22:  110. 

Powers  of  president  of  corporation  as  to 
drawing  or  paying.  14: 
357. 

Who  must  bear  loss  when  check  issued  or 
indorsed  to  impostor.  50: 
75. 

Defense  against  check  transferred  after  ma- 
turity.   46:  808. 

Gift  of.     18:  855. 

Indorsement  of,  "for  deposit."    23:  164. 

Right  of  bank  as  against  holder  of  check  to 
set  off  unmatured  claim 
against  insolvent  deposit- 
or,    15:  711. 

Banking  customs  as  to.     21:  443. 

§  2.  Negotiability. 

Definitions.     26:  568. 

Date  of  check.    26:  568. 

Notice.     26:  569. 


464 


CHEMICAL  ANALYSTS— CHLOROFORM. 


Payee.    26:  570. 

Fictitious.     26:  570. 
Bearer.  26:  570. 
Indorsement.  26:  570. 

Proof.     26:  571. 

Lost  or  stolen  checks.     26:  571. 

Statutes.     26:  571. 

Payable  in  money.     26:  571. 

Possession.     26:  571. 

§  3.  Effect  of. 

As  accord  and  satisfaction.    20:  791. 

Check  drawn  on  fund  as  an  appropriation 
thereof.      11:528.* 

As  an  equitable  assignment.  7:  596;*  9: 
109.* 

Garnishment  of  debt  after  delivery  of 
check  in  payment.  19: 
475. 

§  4.  Acceptance;    certification. 

Eflfect  of  certification.     12:  492.* 
On  liability  of  drawer.  16:  510. 

Parol  certification.     7:  428. 

§  5.  Payment. 

As  to  Collection  of,  see  Banks,  VIIL  §§  14, 
15. 

Payment  by  check.     7 :  442.* 

Effect  of  acceptance  of  check  as  payment. 
9:  263.* 

Liability  of  bank  for  refusing,  when  it  has 
funds.     15:  134. 

Accepting  something  besides  money  as  pay- 
ment.    25:  200. 

Right  to  stop  payment  of.     30:  845. 

Liability  pf  drawee  for  accepting  check 
from  agent  or  fiduciary  in 
payment  of  his  debt.  52: 
790. 

§  6.  Presentation. 

Necessity  of  demand.     7:  490.* 

Time  for  presenting.     13:43.* 

When  check  considered   stale   or  over- 
due.    13:  44.* 
"What  is  reasonable  time.     13:  44.* 

What  is  an  ordinary  mode  of  presentment. 
13:  43.* 

Effect  on  drawer's  liability  of  delay  in  pre- 
senting       check        where 
drawee     remains     solvent. 
53:432. 
Necessity  of  loss  to  drawer's  discharge. 

53:  432. 
What  loss  sufficient  to  work  discharge. 
53:433. 

Release  of    indorser    of  check    by  delay  in 
presenting  it.     22:  785. 
Unreasonable  delay.    22:  785. 
Reasonable  delay.     22:  786.- 


CHEMICAL    ANALYSIS. 

By  City  of  Water  of  Public  Well,  see  Wa- 
ters, 553. 


CHICKEN  HOUSE. 
Aa  Nuisance,  see  Nuisances,  9, 


CHILDREH. 

Cruelty  to,  see  Cruelty. 

Use  of  Word,  in  Deed,  see  Deeds,  56,  57.    ' 

Deed  to,  see  Deeds,  82. 

Rights  of,  in  Life  Insurance,  see  Insurance, 
VI.  d,  2,  6. 

Relation  between  Parent  and  Children  Gen- 
erally, see  Parent  and  Child. 

Meaning  of  Term  as  Used  in  Will,  see  Wills, 
180,  191-194. 

Disinheriting,  see  Wills,  in.  c. 

In  General,  see  Infants. 

Editorial  Notes. 

See  also  Infants,  IV.;   Parent  and  Child,  IV. 

Criminal  Liability  of  Children,  see  Crimi' 
nal  Law,  VI.  §  2. 

Negligence  Of,  or  in  Respect  To,  see  Negli- 
gence, III.  §§8,  10,  13; 
Railroads,  IIL  §  18;  Street 
Railways,  IV.  §  5. 

Sale  of  intoxicating  liquor  to  minor.     10: 

80.* 
^Children"  as  a  word  of  limitation.    2:457.* 


CHIMNEY. 

Liability  for  Injury  by  Fall  of,  see  Negli- 
gence, 79. 

Editorial  Notes. 

Liability  of  landlord  to  third  persons  as  to 

condition  of.     26:  200. 
Liability  of  landlord  to  third   persons  for 

fall  of.     26:  200. 
Liability   of   landlord   to   third   person    for 

smoking     chimney.       26: 

201. 


CHINA. 

Editorial  Notes. 


Jurisdiction  and  powers  of  consul  in  China 
in   civil   cases.     45:  486. 


CHINESE. 

Immigration  of,  see  Aliens,  2,  3. 
Unconstitutional  Discrimination  against,  see 

Constitutional  Law,  462. 
Illegality  of  Contract  Not  to  Rent  to,  see 

Contracts,   382. 


CHISEL. 

Presumption    of   Negligence   from    Fall    of, 
see  Evidence,  544. 


CHLOROFORM. 


Sale  of,  to  Intoxicated  Person,  see  Drugs 
and  Druggists,  4,  5. 


CHOICE— CIGARS. 


465 


Proximate    Cause    of    Death    from   Taking, 
see  Proximate  Cause,  146. 


CHOICE. 
Of  Remedies,  see  Election  of  Remedies. 


CHOKING. 
Death  of  Insured  by,  see  Insurance,  lOIi. 


CHOSE  IN  ACTION. 


Rights  of  Assignee  of,  see  Assignment,  41- 

44;  IV. 
Gift  of,  see  Gift,  55. 
Insurance  Policy  as,  see  Insurance,  179. 

Editorial   Notes. 

Assignment   of,  see  Assignment,   IV. 
What  included  in  term.     2:  747.* 
Equitable   remedy   to   subject   to   judgment 
after  return  of  no  property 
found.     63:  673. 


CHRISTIAN  SCIENCE. 

Discrimination  against,  see  Constitutional 
Law,  508a. 

Practice  of,  as  Ground  for  Divorce,  see 
Divorce  and  Separation,  28.  , 

Right  to  Practise,  see  Physicians  and  Sur- 
geons, I.  b,  4. 

Question  for  Jury  in  Action  for  Failure  to 
Cure,  see  Trial,  81. 

A  statute  making  the  giving  of  Christian 
Science  treatment  lor  a  fee  a  misdemeanoi 
is  not  an  interference  with  the  rights  of 
conscience  and  of  worship,  conserved  by 
Ohio  Bill  of  Rights,  §  7,  and  is  not,  on  that 
ground,  unconstitutional.  State  v.  Marble, 
72  Ohio  St.  21,  73  N.  E.  1063,  70:  835 


CHRISTMAS. 


Prohibition   of  Business  on,   see  Municipal 
Corporations,  272. 


CHURCH. 

Gift  for  Erection  of,  see  Charities,  38,  41, 
62;  in. 

Sale  of  Liquor  Xear,  see  Intoxicating  Liq- 
uors, 150. 

In  General,  see  Religious  Societies. 

Editorial   Notes. 

See  also  Charities.  III.;    Religious  Societies, 
X. 
L.R.A.  Dig.— 30. 


Review  of  decisions  of  ecclesiastical  tri- 
bunals.    49:  384. 

Mandatory  injunction  to  require  opening  of 
church.     20:  167. 


CHURCH  DEACONS. 


Rights  of,  in  Church  Property,  see  Religious 
Societies,  18,  26. 


CHURCH  PAPER. 


Libelous  Publication  in,  see  Libel  and  Slan- 
der, 87,  107. 


CHURCH  PEWS. 


See    Pews. 


CIDER. 

Police  Power  as  to  Sale  of,  see  Constitution- 
al Law,  756. 

Question  for  Jury  as  to  Intoxicating  Na- 
ture of,  see  Trial,  170-172. 

Editorial  Notes. 

As  a  fermented  liquor.     10:  520.* 
As  intoxicating  liquor.     20:  648. 


CIGARETTES. 


Interstate  Commerce  in,  see  Commerce,  93, 
94,    120-122. 

Judicial  Notice  as  to,  see  Evidence,  124. 

Municipal  Regulation  of  Sale  of,  see  Mu- 
nicipal Corporations,  224. 


CIGAR  MAKERS'  UNION. 

Trademark  of,  see  Trademark,  7,  65,  66,  70. 

Editorial  Notes. 

Protection  of  trade  union  labels  or  trade- 
marks.   29:  300. 


CIGARS. 

Due    Process   in    Regulating    Sales    of,    see 

Constitutional  Law,  749. 
License  to  sell,  see  License,  89. 

Editorial  Notes. 

Misrepresentation  as  to,  as  affecting  valid- 
ity of  trademark.     19:  55. 


466  CIPHER  MESSAGE— CITY  ATTORNEY. 

CIPHER  MESSAGE.  CITIZENS. 


Law  Governing  Liability  for  Mistake  in 
Transmitting,  see  Conflict  of  Laws,  103. 

Damages  for  Delay  in  Transmitting,  see 
Damages,   206-209. 

Parol  Evidence  of  Meaning  of,  see  Evi- 
dence, 1135. 

See  also  Telegraphs,  65. 


CIRCUIT  COURTS  OF  APPEALS. 

Appellate    Jurisdiction  of,  see  Appeal    and 

Error,  II.  b. 
Issuance  of  Mandamus  in  Aid  of  Appellate 

Jurisdiction,   see   Mandamus,   29-31. 


CIRCULAR  LETTER. 

Libel  by,  see  Libel  and  Slander,  99,  148. 


CIRCULARS. 


Distributing  on  Streets,  see  Municipal  Cor- 
porations, 148,  149,  265-267. 
As  Records,  see  Records,  2. 


CIRCULAR  SAW. 


Failure  to  Guard,  see  Master  and  Servant, 
141. 


♦  •» 


CIRCUMSTANCES. 
Evidence  of,  see   Evidence,  VI.  k;   XL  j. 
-^—^^ 

CIRCUMSTANTIAL    EVIDENCE. 

Admissibility  of,  see  Evidence,  VI.  k;  XL  j. 

Snfficiencv  of,  see  Evidence.  2209,  2219, 
2223-2225,  22.32,  2261,  2340. 

Necessitv  of  Instructions  as  to,  see  Tri- 
al, 709. 


CIRCUS. 

Special  Train  for,  see  Carriers,  6. 

♦-•-♦ 

CISTERN. 

Negligence  as  to,  see  Negligence,  95. 


CITATION. 


On  Appeal,  see  Appeal  and  Error,  TIL  e. 


Admission  without  Examination  of  Attor- 
ney from  Other  State,  see  Attorneys,  3. 

Corporation  as,  see  Constitutional  Law, 
390-392. 

Abridging  Privileges  and  Immunities  of,  see 
Constitutional  Law,  II.  a. 

Right  to  Inspect  Books  and  Records  of 
Municipality,  see  Municipal  Corpora- 
tions, 11.  i. 

See  also  Aliens. 


CITIZENSHIP. 


As  Aflfecting  Jurisdiction,  see  Courts,  III. 
d. 

As  Qualification  for  Office,  see  Officers,  14, 
15. 

As  Affecting  Right  to  Removal,  see  Re- 
moval of  Causes,  I.  b;  III.   §  2. 

Editorial  Notes. 

Removal  of  Cause  to  Federal  Court  on 
Ground  of  Diverse  Citi- 
zenship, see  Removal  of 
Causes,  IIL  2. 

State  citizenship.     12:  364.* 

Privileges  of  citizens  of  states.     1 :  56.* 

Of  women.     1:  113.* 

Political  rights  of  citizens.     8 :  337.* 

Indians  in  tribal  relations  as  citizens.  7r 
126.* 

As  a  qualification  of  grand  juror.     28:  196. 

Corporations  as  citizens  for  purposes  of 
Federal  jurisdiction.  11: 
216.* 

Corporation  as  citizen  within  Federal 
Constitution.  14:  580;  60: 
330. 

Citizenship  of  corporation,  for  purposes  of 
Federal  jurisdiction,  in 
state  other  than  that 
where  created  14:  184. 
As  to  Status  of  Corporations.  General- 
ly,  see  Corporations,   §   2. 

Question  relating  to  citizenship  as  Federal' 
question.    62:  537. 

Of  party  in  District  of  Columbia  as  affect- 
ing jurisdiction  of  Feder- 
al court  on  ground  of  di- 
verse citizenship.     1 :  108.* 

Necessity  of  diversity  in,  at  time  suit 
brought,  as  condition  of 
Federal  jurisdiction.  1: 
108.* 


CITY. 

Meaning  of  Word,  see  Contracts,  328a. 
See  also  Municipal  Corporations. 


CITY  ATTORNEY. 


Presumption  on  Appeal  as  to  Authority  of,, 
see  Appeal  and  Error,  410. 


CITY  ENGINEER— CI VILITER  MORTUUS. 


467 


Validity  of  Contract  as  to  Compensation 
of,  see  Contracts,  501. 

Liability  of,  for  False  Imprisonment,  see 
False  Imprisonment,  38. 

Authority  of,  see  Municipal  Corporations, 
603. 

Removal  of,  see  Officers,   123,   124. 

Prohibition  against  Removal  of,  see  Pro- 
hibition, 31. 


CITY  ENGINEER. 


Conclusiveness  of  Decision  of,  see  Contracts, 
728,  731. 


CITY  HALL. 


Exemption  of,  from  Levy,  see  Exemptions, 
12. 

Exemption  of  Insurance  on,  from  Levy,  see 
Exemptions,  26,  27. 

Liability  for  Injuries  in,  see  Municipal  Cor- 
porations, 555. 

On  Public  Square,  see  Parks  and  Squares,  5. 


CITY   TREASURER. 


Bond  of,  see  Bonds,  58-60. 
Right  to  Inspect  Books  in  Office  of,  see  Mu- 
nicipal Corporations,  595,  596. 


CIVIL  AUTHORITIES. 

Stipulation  against  Lii.oility  for  Loss  by 
Order  of,  see  Insurance,  329. 

Nonliability  for  Loss  of  Property  by  Order 
of,  see  Insurance,  957. 

Power  over  Militia,  see  Militia,  8-11. 


CIVIL  DAMAGES. 


See  Intoxicating  Liquors,  IV.  b. 


CIVIL  DEATH. 


Of  Corporation,   see  Corporations,  732,  and 
also  infra,  Editorial  Notes. 

1.  Civil  death,  under  2  N.  Y.  Rev.  Stat.  p. 
701,  §  20  (Penal  Code,  §  708),  which  pre- 
scribes that  "a  person  sentenced  to  impris- 
onment in  a  state  prison  for  life  shall  there- 
after be  deemed  civilly  dead,"  does  not  de- 
vest the  criminal  of  his  property.  Avery 
v.  Everett,  110  N.  Y.  317,  18  N.  E.  148, 

1:264 

2.  A  statute  prohibiting  a  convict  from 
making  any  conveyance  of  his  property  or 
any  part  thereof  during  imprisonment  does 
not  prevent  him  from  incurring  a  liability 


by  executing  a  bail  bond.  Kenyon  v.  Saun- 
ders, 18  R.  I.  590,  30  Atl.  470,  26:  232 
Effect  of,  on  descent  of  property. 

3.  A  devise  of  property  to  a  nephew,  lim- 
ited upon  the  death  of  testator's  son  with- 
out children,  does  not  vest  on  the  son's  im- 
prisonment for  life,  under  2  N.  Y.  Rev.  Stat, 
p.  701,  §  20,  providing  that  one  sentenced  to 
imprisonment  for  life  shall  thereafter  be 
deemed  civilly  dead.  Avery  v.  Everett,  110 
N.  Y.  317,  18  N.  E.  148,  1:264 

4.  Sentencing  a  person  to  imprisonment 
for  life  does  not  cast  the  descent  to  his  es- 
tate, under  statutes  fixing  the  time  at  which 
descent  shall  be  cast  at  a  person's  death. 
Davis  v.  Laning,  85  Tex.  39,  19  S.  W.  846, 

18:  82 

5.  Descent  of  property  upon  heirs  is  not 
cast  by  the  fact  of  such  sentence  and  im- 
prisonment under  Kan.  Gen.  Stat.  1899,  § 
5583,  which  provides  that,  when  a  person 
shall  be  imprisoned  under  a  sentence  of 
imprisonment  for  life,  his  estate,  property, 
and  effects  shall  be  administered  and  dis- 
posed of  in  all  respects  as  if  he  were  nat- 
urally dead.  Smith  v.  Becker,  62  Kan.  541, 
64  Pac.  70,  53:  141 
Right  of  one  civilly  dead  to  sue. 

6.  One  convicted  of  a  capital  offense  and 
sentenced  to  death  in  one  state  is  not  there- 
by prevented  from  maintaining  a  civil  ac- 
tion in  another  state.  Wilson  v.  King,  59 
Ark.  32,  26  S.  W.  18,  23:  802 

7.  A  convict  may  maintain  an  action  to 
enforce  his  property  rights,  when  the  stat- 
utes provide  thai,  no  conviction  shall  work 
a  forfeiture  of  estate.  Kenyon  v.  Saunders, 
IS  R.  L  590,  30  Atl.  470,  26:  232 

Editorial  Notes. 

Law  as  to,  in  United  States.     18:  82. 

Effect  of  civil  death  of  debtor  after  judg- 
ment upon  the  remedy  by 
execution.      61 :  386. 

Dissolution  of  corporation  as  affecting  lia- 
bility for  running  con- 
tract for  services.  69: 
137. 


CIVIL  DIVISIONS. 


Editorial  Notes. 
Judicial  notice  with  respect   to. 


4:  37.» 


CIVIL  ENGINEER. 


Opinion  Evidence  by,  see  Evidence,  1387. 
Corroboration  of  Opinion  of,  see  Evidence, 

1241. 
Assumption    of    Risk  by,  see    Master    and 

Servant,  328,  359. 


CIVILITER  MORTUUS. 
See  Civil   Death. 


463 


CIVIL  LAW  ;  CIVIL  RIGHTS. 


CIVIL  LAW. 

Doctrine  ot,  as  to  Prior  Appropriation,  see 
Waters,  303. 


CIVIL  RIGHTS. 


Exclusion  of  Negroes  from  Jury,  see  Appeal 
and  Error,  1122,  and  also  infra,  Edi- 
torial Notes. 

Colored  Persons  as  Affecting  Apportionment, 
see  Election  Districts,  5. 

Intimidating  Negroes  at  Election,  see  Elec- 
tions, 281-285. 

Indictment  for  Denial  of,  see  Indictment, 
etc.,  59. 

In  places  of  amusement. 

Variance  in  Proof  as  to,  see  Evidence,  2421. 

See  also  infra,  6. 

1.  The  general  expression  in  the  Illinois 
civil  rights  act  of  June  10,  1885,  "all  other 
places  of  public  accommodation  and  amuse- 
ment," embraces  only  places  of  the  same 
general  character  or  kind  as  inns,  restau- 
rants, eating  houses,  barber  shops,  public 
convevances,  and  theaters,  specifically  enu- 
merated. Cecil  V.  Green,  161  111.  265,  43  N. 
E.   M05,  32:  566 

2.  A  discrimination  against  colored  per- 
sons by  permitting  them  to  sit  only  in  the 
balcony  of  a  theater  is  not  unlawful,  in 
the  absence  of  anv  statute  to  the  contrary. 
Younger  v.  Judah,  111  Mo.  303,  19  S.  W. 
1109,  16:  558 

3.  Colored  persons  to  whom  tickets  for 
the  orchestra  of  a  theater  are  sold  at  the 
\>o\  office  may  be  prevented  from  using 
them  and  required  to  give  them  up  for 
balcony  tickets  or  for  the  return  of  their 
money,  where  the  tickets  were  sold  without 
knowledge  that  the  persons  who  were  to 
use  them  were  colored,  and  the  rule  of  the 
theater,  as  well  as  a  custom  and  usage  pre- 
vailing in  the  state,  permit  colored  persons 
in  the  balcony  only.  Id. 

4.  Tho  rule  of  a  theater,  that  colored  peo- 
ple can  sit  in  the  balcony  only,  does  not  vio- 
late U.  S.  Const.  14th  Amend,  which  de- 
clares that  "no  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges 
and  immunities  of  the  citizens  of  the  United 
States."  Id. 

5.  The  provision  of  N.  Y.  Pen.  Code.  §  383, 
prohibiting  the  exclusion  from  the  equal  en- 
joyment of  any  place  of  amusement  of  any 
person,  by  reason  of  race,  color,  or  previous 
condition  of  servitude,  is  a  valid  exercise  of 
the  police  power  of  the  state,  and  is  not 
unconstitutional.  People  v.  King,  110  N.  Y. 
418.  18  N.  E.  245,  1:293 
Drug  store. 

G.  A  drug  store  in  which  soda  water  is 
sold  is  not  a  place  of  public  accommodation 
and  amusement  within  the  Illinois  civil 
rights  act  of  .Tune  10,  188.5,  but  is  to  be 
classed  with  other  mercantile  stores.  Cecil 
v.  Green,  161  111.  265,  43  N.  E.  1105,  32:  566 
In  restaurants. 

7.  The  refusal   of  a  waiter   in  an   eating 


house  to  wait  upon  a  colored  patron  because 
of  his  color  renders  the  eating-house  keeper 
liable,  although  he  did  not  aid  or  abet  the 
waiter  in  such  action,  to  at  least  the  mini- 
mum penalty  provided  by  Wis.  Laws  1805, 
chap.  223,  §  1,  providing  that  all  persons 
shall  be  entitled  to  the  equal  enjoyment  of 
the  privileges  of  eating  houses,  and  §  2, 
providing  that  any  person  who  violates  the 
foregoing  section  by  denying  anj'  person, 
except  for  reasons  applicable  alike  to  all 
persons,  the  full  enjoyment  of  all  such  privi- 
leges, shall  be  liable  to  the  person  aggrieved 
for  not  less  than  $5  and  costs.  Bryan  v. 
Adler,  97  Wis.   124,  72  N.  W.  368,  41 :  658 

8.  No  discrimination  between  persons  can 
be  made  by  a  restaurant  keeper  in  serving 
customers,  on  account  of  color  alone,  under 
a  statute  which  .declares  that  all  persons 
shall  be  entitled  to  the  full  and  equal  ac- 
commodations, advantages,  facilities,  and 
privileges  of  restaurants,  etc.  The  terms 
"full  and  equal"  require  identical  accommo- 
dations for  all;  offering  colored  people  sub- 
stantially the  same  accommodation  as  that 
offered  white  people  is  not  sufficient  if  the 
former  in  fact  differs  from  the  latter.  Fer- 
guson v.  Gies,  82  Mich.  358,  46  N.  W.  718, 

9:  589 

9.  One  who  viola'tes  the  law  making  it  a 
misdemeanor  for  a  restaurant  keeper  to  dis- 
criminate against  colored  persons  in  serving 
customers  becomes  liable  to  an  action  for 
civil  damages  at  the  suit  of  a  person  in- 
jured by  the  discrimination;  and  it  is  not 
necessary  in  such  action  to  declare  upon  or 
in  any  way  refer  to  the  penal  statute.  Id. 
In  cars  and  waiting  rooms. 
Regulations   as  to  Colored  Passengers,  see 

Carriers,  38. 

Rights  of  Negroes  to  Protection,  as  Pas- 
sengers, see  Carriers,  156. 

Evidence  as  to,  see  Evidence,  2077. 

Question  for  .Jury  as  to  Reasonableness  of 
Carrier's  Rules,  see  Trial,  146,  147. 

See  also  infra.  Editorial  Notes. 

10.  A  carrier  may  exchide  a  colored  wo- 
man from  a  car  set  apart  for  ladies,  where 
she  is  given  an  opportunity  to  ride  with 
people  of  her  own  color  in  a  car  which  is 
equal  in  accommodations  to  the  other.  Chil- 
ton V.  St.  Louis  &  I.  M.  R.  Co.  114  Mo.  88, 
21   S.  W.   458,  19:  269 

11.  A  state  statute  providing  for  sepa- 
rate but  equal  accommodations  for  the 
white  and  colored  races  on  railroads  is  a 
valid  police  regulation,  and  applies  both  to 
intra-  and  inter-state  travel.  Smith  v. 
State.  100  Tenn.  494,  46  S.  W.  566.  41 :  432 

12.  The  Mississippi  statute  of  1888,  re- 
quiring steam  railroads  to  provide  eoual 
but  separate  accommodations  for  the  differ- 
ent races,  by  providing  two  or  more  cars 
for  each  train,  or  by  dividing  the  cars  by 
partition,  is  not  invalid  as  a  regulation  of 
interstate  commerce,  as  it  refers  only  to  the 
carriage  of  passengers  to  points  within  the 
state.  Louisville,  N.  O.  &  T.  R.  Co.  v.  State. 
66  Miss.  602,  6  So.  203,  5:  132 

13.  Under  the  Louisiana  statute  author- 
izing a  railroad  conductor  to  assign  white 
and  colored  passengers  to  separate  coaches, 


CIVIL  SERVICE. 


469 


a  conductor  is  not  authorized  to  assign  a 
passenger  to  a  coach  to  which  his  race  does 
not  belong;  nor  is  the  passenger  bound  to 
accept  such  wrongful  assignment,  or  the 
carrier  exempt  from  liability  for  refusal  to 
carry  him  when  he  disobeys  such  assign- 
ment. Ex  parte  Plessy,  45  La.  Ann.  80,  11 
So.  P4.S  18:  639 

14.  The  mere  circumstance  that  there  has 
been  at  some  time  chewing  and  smoking  in 
a  room  set  apart  for  colored  passengers,  and 
not  in  the  one  set  apart  for  white  passen- 
gers, does  not  conclusively  show  that  the  ac- 
commodations of  the  two  rooms  are  not 
substantially  equal  at  a  time  when  there  is 
no  chewing  or  smoking  in  the  room.  Smith 
V.  Chamberlain,  38  S.  C.  529,  17  S.  E.  371, 

19:  710 

15.  A  statute  requiring  equal,  but  sepa- 
rate, accommodations  for  the  white  and 
colored  races  by  providing  separt^te  coaches 
or  compartments  does  not  deny  or  abridge 
the  equal  privileges  or  immunities  of  citi- 
zens. Ex  parte  Plessy,  45  La.  Ann.  80,  11 
So.  948,  18:  639 

16.  No  badge  of  slavery  or  involuntary 
servitude  contrary  to  the  13th  Amendment 
of  the  United  States  Constitution  is  im- 
posed by  requiring  equal,  but  separate,  ac- 
commodations for  the  white  and  colored 
races  in  railroad  cars  by  providing  separate 
coaches   or  compartments.     •  Id. 

17.  Miss,  act  March  2,  1888,  requiring 
steam  railroads  to  have  separatg  accommo- 
dations for  the  two  races,  was  not  re- 
pealed by  Miss,  act  March  14,  1888,  §  3. 
Louisville,  N.  O.  &  T.  R.  Co.  v.  State,  66 
Miss.  662,  6  So.  203,  5:  132 

18.  Separate  waiting  rooms  for  white  and 
colored  passengers  may  be  set  apart  in  a 
railway  depot,  provided  the  accommodations- 
are  equal.  Smith  v.  Chamberlain,  38  S.  C. 
529,  17  S.  E.  371,  19:  710 
In  schools. 

Question  for  Jury  as  to,  see  Trial,  507. 
Special  Interrogatories  as  to,  see  Trial,  591. 
See  also  Schools,  7,  8. 

19.  IMunicipal  authorities  have  no  right  to 
establish  difl'erent  schools  for  white  and  col- 
ored children  of  the  city,  and  exclude  col- 
ored children  from  schools  established  for 
white  children,  and  send  them  out  of  their 
district  to  reach  a  colored  school,  although 
the  schools  e.stablished  for  the  colored  chil- 
dren furnish  educational  facilities  equal  or 
superior  to  those  of  the  schools  established 
for  white  children.  People  ex  rel.  Bibb  v. 
Alton,   193  111.  309,  61  N-.  E.   1077,       56:  95 

20.  A  board  of  education  cannot,  in  the 
face  of  direct  statutory  prohibition,  comj)el 
a  school  committee  to  admit  negroes  into 
an  Indian  school.  McMillan  v.  Croatan 
School  Dist.  No.  4,  107  N.  C.  609,  12  S.  K. 
330,  10:  823 

21.  In  the  absence  of  a  constitutional  pro- 
hibition the  legislature  of  a  state  may  law- 
fully provide  separate  selmols  for  friendly 
Inaians  situated  within  its  jurisdiction,  and 
exclude  negroes  from  the  privilege  of 
attending  them.  fd. 


22.  The  rights  of  colored  children  under 
U.  S.  Const.  14th  Amend.  §  1,  are  not  vio- 
lated by  Mo.  Const,  art.  11,  §  3,  requiring 
separate  schools  for  children  of  African  de- 
scent, and  Mo.  act  1887,  p.  264,  providing 
for  such  a  school  in  every  district  where 
there  are  fifteen  or  more  such  children,  and 
that  if  there  are  less  than  that  number  in 
the  district  they  may  attend  in  any  dis- 
trict in  the  county  in  which  such  a  school  is 
maintained,  although  the  effect  may  be  to 
compel  them  to  go  farther  to  reach  schood 
than  white  children  have  to  go.  Lehew  v. 
Brummell,  103  Mo.  546,  15  S.  W.  765, 

11:  828 

23.  Until  the  legislature  clearly  confers 
power  upon  the  boards  of  education  of  cit- 
ies of  the  second  class  in  Kansas  to  establish 
separate  schools  for  the  education  of  white 
and  colored  children,  no  such  power  exists. 
Knox  V.  Independence  Bd.  of  Edu.  45  Kan. 
152,  25  Pac.  616,  11:  830 

24.  The  right  of  colored  children  to  at- 
tend any  school  they  or  their  parents  may 
choose,  instead  of  being  restricted  to  the 
separate  schools  established  for  colored 
children,  is  not  conferred  by  N.  Y.  Pen. 
Code,  §  383,  which  makes  it  a  misdemeanor 
for  teachers  or  officers  of  schools  to  ex- 
clude any  citizen  from  the  equal  enjoyment 
of  any  accommodation  or  privilege,  if  the 
schools  for  colored  children  furnish  facili- 
ties and  accommodations  equal  to  those 
which  are  furnished  by  the  other  schools. 
People  ex  rel.  Cisco  v.  School  Board,  161  N. 
Y.  598.  56  N.  E.  81,  48:  113 

25.  A  person  cannot  be  admitted  to  n 
school  from  which  negroes  to  the  fourth 
generation  have  been  excluded  by  the  leg- 
islature, if  by  tracing  back  through  his 
father  or  mother  four  successive  Gfcnera- 
tions  a  negro  ancestor  is  reached.  The  word 
"generation"  cannot  be  given  the  same 
meaning  as  "degree."  McMillan  v.  Crontfi 
School  Dist.  No^  4,  107  X.  C.  609.  12  S.  E. 
330,  10:  823 

Editorial   Xotes. 

Protection  of.     9:  589;*    14:  579. 

Effect  of  first  section  of  Fifteenth  Amend 
nient     on     elective     fran- 
chise.    8:  337. 

Elective  franchise  as  affected  by  Fourteenth 
Amendment.     8:  337. 

Of  colored  persons,  protection  of,  by  Four- 
teenth Amendment.  1 : 
293.* 

Rights  of  colored  passengers.     18:  639. 
Statutory  regulations.     18:  641. 

Negroes  as  grand  jurors.    28:  204. 

Removal  of  cause  from  state  to  Federal 
court  because  of  discrimi- 
nation aerainst  negroes  as 
jurors.  53:  574. 


CIVIL  SERVICE. 


Effect  of  New  Constitution  on  Law  as  to, 
see  Constitutional  Law,  53. 


470 


CIVIL  SERVICE. 


Grant  of  Judicial  Power  to  Civil  Service 
Commissioners,  see  Constitutional  Law, 
227. 

Disqualification  from  Holding  Office  as 
Punishment  for  Crime,  see  Criminal 
Law,  215. 

Promotion  of  Police  Officer,  see  Police,  1. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 83. 

Re-enactment  of  Law  after  Adoption  of,  see 
Statutes,  619. 

1.  A  statute  which  requires  the  mayor  of 
a  city  to  prepare  rules  for  the  selection  of 
the  city  officers  whose  appointment  has  been 
delegated  by  the  Constitution  to  the  munic- 
ipal authorities,  which  must  be  approved 
by  the  state  civil  service  commission  before 
they  can  go  into  effect,  does  not  subordinate 
the  power  of  the  local  authorities  to  that  of 
the  state  authorities  in  violation  of  the 
constitutional  provision  delegating  the  ap- 
pointing power  to  the  municipal  authorities. 
Rogere  V.  Buffalo,  123  N.  Y.  173,  25  N.  E. 
274,  9:  579 

2.  The  constitutional  provisions  respect- 
ing powers  and  duties  of  the  superintendent 
of  public  works,  which  the  New  York  Con- 
stitution of  1894  adopted  from  the  former 
Constitution,  must  be  read  and  understood 
in  connection  with  the  new  section  of  the 
Constitution  requiring  civil  service  appoint- 
ments to  be  made  according  to  merit,  ascer- 
tained so  far  as  practicable  by  competitive 
examinations.  People  ex  rel.  McClelland  v. 
Roberts,  148  N.  Y.  360,  42  N.  E.  1082, 

31:  399 

3.  The  provisions  of  the  civil  service  stat- 
utes in  force  at  the  time  of  the  adoption  of 
the  Constitution,  with  the  exception  of  the 
clause  exempting  discharged  soldiers  and 
sailors  from  examination  in  certain  cases, 
are,  so  far  as  they  provide  machinery  for 
determining  the  fitness  of  applicants,  con- 
tinued in  force  by  that  instrument.  Chit- 
tenden V.  Wurster,  152  N.  Y.  345,  46  N.  E. 
857,  37:809 
What  positions  within  civil  service  law  gen- 
erally. 

4.  An  officer  whose  appointment  is  sub- 
ject to  confirmation  by  the  city  council,  even 
though  he  be  a  subordinate  in  one  of  the 
principal  departments  of  the  city,  is  exclud- 
ed from  the  classified  service  by  §  11  of  the 
Illinois  civil  service  act  of  1895,  if  the  of- 
fice had  been  created  and  was  in  existence 
when  the  act  was  passed.  People  ex  rel. 
Akin  V.  Kipley,  171  111.  44,  49  N.  E.  229, 

41:  775 

5.  The  words  "heads  of  any  principal 
department  of  the  city,"  in  §  11  of  the  Illi- 
nois civil  service  act  of  1895,  excluding  such 
heads  of  departments  from  the  classified 
service,  refer  to  heads  of  the  departments  as 
they  existed  at  the  time  when  the  act  was 
passed,  and  do  not  extend  to  subordinates, 
even  where  the  department  has  but  one 
head.  Id. 
Confidential  positions. 

6.  Positions  in  the  confidential  class  of 
the  civil  service,  applicants  for  which  are 
not  requirea  to  submit  to  a  competitive  ex- 


amination, are  not  limited  to  those  which 
are  strictly  secret.  Chittenden  v.  Wurster, 
152  N.  Y.  345,  46  N.  E.  857,  37 :  809 

7.  The  Constitution  does  not  require  com- 
petitive examination  for  the  appointment  to 
office  of  a  person  who  is  to  receive,  open, 
read,  and  answer  the  letters  of  his  chief, 
counsel  and  advise  him  with  reference  to 
the  conduct  of  his  office,  sign  his  name  to 
checks  and  warrants,  collect  and  pay  out 
the  money,  and  have  the  combination  of  his 
safe  and  the  custody  and  control  of  its  eon- 
tents.  Id. 
Examinations;  examiners. 

As  to  Exemptions,  see  Constitutional  Law, 
80,  81. 

Delegation  of  Power  as  to,  see  Constitu- 
tional Law,  210. 

8.  A  law  providing  that  appointments  to 
municipal  offices  or  positions  shall  be  made 
according  to  merit  and  fitness,  and  that  such 
merit  and  fitness  must  be  ascertained  by 
competitive  examination,  is  within  the 
power  of  the  legislature.  People  ex  rel. 
Akin  V.  Kipley,  171  111.  44,  49  N.  E.  229, 

41:  775 

9.  An  ordinance  which  purports  to  change 
certain  subordinate  officers  into  heads  of 
principal  departments,  and  require  their  ap- 
pointments to  be  confirmed  by  the  city  coun- 
cil, in  order  to  remove  them  from  the  class- 
ified service  for  which  appointments  must 
be  made  by  examination  under  the  Illinois 
civil  service  act  of  1895,  and  place  them  in 
the  list  of ^  those  exempt  from  examination, 
which  includes  heads  of  principal  depart- 
ments and  officers  whose  nominations  must 
be  confirmed  by  the  city  council,  is  invalid 
as  an  attempt  to  nullify  the  statute.         Id. 

10.  A  medical  staff  comprising  the  board 
of  visiting  physicians  of  a  city  hospital  are 
"professional  experts,"  and  not  "officers, 
clerks,  and  employees,"  within  the  meaning 
of  a  statute  requiring  competitive  examina- 
tions for  appointment  of  the  latter,  but  ex- 
empting professional  experts  therefrom. 
Com.  ex  rel.  Hensel  v.  Fitler,  147  Pa.  288,  23 
Atl.  568,  15:  205 

11.  The  provision  against  establishing  ad- 
ditional executive  or  administrative  depart- 
ments, in  Ind.  Rev.  Stat.  1894,  §  3819,  is  not 
violated  by  the  creation  of  a  board  of  exam- 
iners, to  ascertain  the  fitness  of  applicants 
for  office  in  city  departments,  which  it  is 
made  the  duty  of  the  mayor  and  heads  of 
departments,  under  §  3816,  to  provide  for 
by  rules  and  regulations  prescribing  a  sys- 
tematic method.  Newcomb  v.  Indianapolis, 
141  Ind.  451,  40  N.  E.  919,  28:  732 

12.  The  creation  of  a  board  of  examiners 
is  a  proper  means  for  the  exercise  of  the 
duty  imposed  upon  the  mayor  and  heads  of 
departments  of  a  city  by  Ind.  Rev.  Stat. 
1894,  §  3816,  requiring  them  to  make  rules 
and  regulations  for  prescribing  a  systematic 
method  of  ascertaining  the  fitness  of  appli- 
cants for  appointments  and  promotion  in 
city  departments  without  regard  to  political 
opinions  or  services.  Id. 
Preference  of  veterans. 

As  to  License  Tax  for  Peddling,  see  Consti- 
tutional Law,  484,  485. 


CLAIM  BOND  ;    CLAIMS.  I. 


471 


13.  A  statute  providing  that  those  who 
have  served  in  the  Army  and  Navy  of  the 
United  States  in  the  War  of  the  Rebellion, 
and  have  been  honorably  discharged  there- 
from, shall  be  preferred  for  appointment  to 
oflice  in  every  public  department,  and  upon 
all  public  works  of  the  state  and  of  the 
cities  and  towns  thereof,  is  constitutional. 
Goodrich  v.  Mitchell,  68  Kan.  765,  75  Pac. 
1034,  64:945 

14.  The  exemption  from  competitive  ex- 
aminations of  honorably  discharged  soldiers 
and  sailors,  given  by  N.  Y.  act  1895,  chap. 
344,  is  in  conflict  with  the  Constitution  of 
the  state.  Re  Keymer,  148  N.  Y.  219,  42  N. 
E.  667,  35:  447 

15.  The  compulsory  appointment  of  vet- 
erans, if  they  desire  to  be  appointed,  when- 
ever they  make  a  sworn  statement  of  quali- 
fications with  the  certificate  of  three  citi- 
zens of  good  repute  in  the  community,  which 
Mass.  Stat.  1895,  chap.  501,  §§  2; -6,  attempt 
to  provide  for,  is  inconsistent  with  the  Con- 
stitution, especially  article  7,  declaring  that 
government  is  for  the  common  good,  "and 
not  for  the  profit,  honor,  or  private  interest 
of  any  one  man,  family,  or  class  of  men," 
and  article  6,  declaring  that  no  man,  corpo- 
ration, or  association  shall  have  any  other 
title  to  exclusive  privileges  than  what  arises 
from  the  consideration  of  services  rendered 
to  the  public.  Brown  v.  Russell,  166  Mass. 
14,  43  N.  E.  1005,  32:  253 

16.  The  preference  of  honorably  dis- 
charged soldiers  and  sailors  "in  appointment 
and  promotion  without  regard  to  their 
standing  on  any  list,"  which  is  given  by  the 
proviso  of  N.  Y.  Const,  art.  5,  §  9,  does  not 
exempt  them  from  examinations,  but  oper- 
ates when,  as  a  result  of  examinations,  they 
are  placed  upon  a  list  from  which  appoint- 
ments and  promotions  can  be  made.  Re 
Keymer,  148  N.  Y.  219,  42  N.  E.  667,  35:  447 

17.  The  discretion  to  appoint  veterans  to 
certain  oflRces  and  employment  without  an 
examination,  which  is  given  by  Mass.  Stat. 
1896,  §  3,  if  in  the  opinion  of  the  appointing 
power  the  public  service  requires  this  to  be 
done,  is  not  unconstitutional.  Opinion  of 
the  Justices,  166  Mass.  589,  44  N.  E.  625, 

34:  58 

18.  A  preference  of  veterans  over  all  other 
persons  except  women,  given  by  Mass.  Stat. 
1896,  §  2,  when  they  have  passed  the  civil 
service  examination,  is  not  unconstitutional. 

Id. 

19.  The  provision  that  civil  service  com- 
missioners shall  establish  rules  to  secure  the 
employment  of  veterans  in  the  labor  service 
of  the  commonwealth  and  its  cities  and 
towns  in  preference  to  all  other  persons  ex- 
cept women  which  is  made  by  Mass.  Stat. 
1896,  §  6,  if  construed  to  mean  that  only 
those  found  competent  shall  be  preferred,  is 
within  the  constitutional  power  of  the 
legislature.  Id. 
Classifications. 

Presumption  as  to,  see  Evidence,  608. 
See  also   supra,  6,   7,  infra,   16-20. 

20.  Payment  of  officers  appointed  without 
examination  under  a  classification  made  by 
the   proper   officer   will   not  be   enjoined   or 


the  offices  declared  vacant  until  it  has  been 
judicially  determined  that  the  classification 
is  erroneous.  Chittenden  v.  Wurster,  152  N. 
Y.  345,  46  N.  E.  857,  37 :  809 

21.  A  classification  of  positions  in  the 
civil  service,  made  by  the  proper  officer,  who 
is  not  shown  to  have  acted  corruptly  or  dis- 
honestly in  making  it,  is  valid,  and  a  pro- 
tection to  heads  of  departments  and  em- 
ployees acting  under  it  until  it  is  judicially 
determined  that  it  is  erroneous.  Id. 


CLAIM  BOND. 
Delivery  on  Sunday,  see  Sunday,  4. 


CLAIMS. 

I.  Against  United  States. 
II.  Against  State. 
III.  Editorial  Notes. 

Against  Bankrupt  Estate,  see  Bankruptcy, 
III. 

Against  Insolvent  Estate,  Release  of,  see 
Assignments  for  Creditors,  VIII.  b. 

Employment  of  Agent  to  Prosecute,  see  Con- 
tracts, 480. 

By  Uverseer  of  Poor,  Evidence  as  to,  see 
Evidence,  1013,  1029. 

Against  Decedent's  Estate,  see  Executors 
and  Administrators,  IV. 

Against  Insolvent  Estate,  see  Insolvency, 
IV. 

License  Fee  for  Buying,  see  License,  64. 

Against  City,  Presentation  of,  see  Municipal 
Corporations,  II.  g,  6. 

Who  may  Maintain  Injunction  Suit  for  Il- 
legal Combination  of  Dealers  in,  see 
Parties,  105. 

For  Patent,  see  Patents,  16. 

See  also  Alabama  Claims. 


I.  Against  United  States. 

Attorney's  Interest  in,  see  Attorneys,  80- 
83. 

Jurisdiction  of  Suit  on,  see  Courts,  325. 

As  Assets  for  Administration,  see  Executors 
and  Administrators,  16. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  35,  217. 

Setoff  Against,  see  Set-Off  and  Counter- 
claim, 20. 

See  also,  infra,  23. 

For  Editorial  Notes,  see  infra,  III.  §  1. 

1.  Public  officers  cannot  open  and  re-ex- 
amine claims  against  the  government  which 
were  rejected  by  their  predecessors  in  office, 
in  the  absence  of  fraud,  mistake  in  matters 
of  fact  arising  from  errors  in  calculations, 
or  of  newly  discovered  material  evidence. 
Waddell  v.  United  States,  25  Ct.  CI.  323, 

7:  861 

2.  The  act  of  Congress  of  February  22, 
1875    (18   Stat,   at   L.   333),   which  requires 


472 


CLAIMS,  II. 


that  the  accounts  of  district  attorneys, 
clerks,  marshals,  etc.,  shall  be  forwarded, 
"when  approved,"  to  the  proper  accounting 
officers  of  the  Treasury,  does  not  make  pre- 
sentation to  suoh  officers  a  condition  prece- 
dent to  a  right  of  action,  nor  is  rejection  of 
a  claim  by  the  accounting  officers  of  the 
Treasury  such  a  determination  of  a  "com- 
mission or  department  authorized  to  hear 
and  determine,"  within  the  meaning  of  the 
act  of  Congress  of  March  3,  1887  (24  Stat, 
at  L.  505),  as  will  bar  an  action  in  the 
proper  courts.  Erwin  v.  United  States,  37 
Fed.  470,  2:  229 

3.  Where,  in  an  action  against  a  debtor,  in 
a  state  court,  a  receiver  of  a  claim  of  the 
debtor  against  the  United  States  was  ap- 
pointed, and  the  state  court  by  its  decree 
subrogated  the  receiver  to  the  rights  of  the 
debtor  in  said  claim,  and  authorized  him  to 
sue  the  United  States  in  the  court  of  claims 
therefor,  for  the  benefit  of  a  single  creditor, 
such  decree  of  the  state  court  has  no  force 
in  the  court  of  claims,  and  a  suit  by  the  re- 
ceiver therefor  will  be  dismissed.  Howes  v. 
United  States,  24  Ct.  CI.  170,  5:  66 

4.  It  is  the  duty  of  the  Treasury  Depart- 
ment, through  the  accounting  officers,  to 
settle  all  claims  and  demands  by  and 
against  the  United  States,  and  in  proper 
cases  to  set  off  one  against  the  other,  when 
the  government  is  both  debtor  and  creditor 
of  the  same  party.  Id. 

5.  Where  two  partners  recovered  a  joint 
judgment  against  the  United  States,  and  it 
paid  one  half  thereof  to  one  partner,  and 
applied  the  other  half  to  a  judgment  in  its 
favor  against  the  other  partner,  who  execut- 
ed a  release  therefor,  such  partners,  having 
ratified  such  settlement  and  payments,  can- 
not compel  the  United  States  to  pay  the 
money  over  again  to  them  jointly.  Id. 
Effect  of  assignment. 

6.  Assignments  of  claims  against  the 
United  States,  made  before  the  issuing  of  a 
warrant  for  payment,  except  when  made  in 
a  general  transfer  of  the  claimant's  property 
by  operation  of  law,  or  by  voluntary  trans- 
fer of  all  his  property  for  the  benefit  of  his 
creditors,  are  void.  U.  S.  Rev.  Stat.  §  3477, 
U.  S.  Comp.  Stat.  1901,  p.  2320;  Howes  v. 
United  States,  24  Ct.  CI.  170,  5:  66 

7.  While  the  accounting  officers  of  the 
Treasury  may  state  and  certify  accounts  in 
favor  of  purchasers,  assignees,  or  transferees 
of  claims  against  the  United  States  for  wit- 
ness fees,  whose  assignments  are  not  contro- 
verted, they  may  exercise  their  own  dis- 
cretion in  the  matter,  with  due  regard  to 
the  convenience  of  parties  and  the  govern- 
ment. Such  assignees  have  no  rights  which 
make  it  obligatory  upon  the  accounting  of- 
ficers to  so  state  accounts  in  their  favor. 
Lopez  V.  United  States,  24  Ct.  CI.  84,    2:  571 

8.  Unrevoked  and  undisputed  orders,  as- 
signments, and  transfers  of  claims  against 
the  United  States  are  so  far  valid  under  the 
law  that,  if  payment  be  made  thereon,  the 
assignors  will  be  estopped  from  setting  up 
any  other  claim  on  their  behalf,  and  such 
payment  will  be  a  valid  discharge  of  the  in- 
debtedness. Id. 


9.  A  marshal  may  pay  witness  fees  to 
persons  other  than  those  in  whose  favor 
such  fees  are  taxed  by  the  court,  upon  the 
unrevoked  and  undisputed  orders,  assign- 
ments, or  transfers  thereof  by  the  wit- 
nesses. Id. 

10.  While  assignments  and  transfers  of, 
and  powers  of  attornej'  to  collect,  money 
due  from  the  United  .States,  before  the  issu- 
ance of  a  warrant  therefor,  are,  bj"^  force 
of  U.  S.  Rev.  Stat.  §  3477,  void  if  the  as- 
signors or  principals  revoke  and  repudiate 
them  before  payment  is  made  upon  them, 
still  the  accounting  officers  of  the  Treasury 
may  recognize  them  and  may  state  accounts 
in  favor  of  the  assignees  or  attorneys  in 
fact,  and  payment  may  be  made  at  any 
time  before  revocation;  and  such  payments 
are  binding  and  conclusive  upon  the  parties, 
and  are  a  complete  discharge  of  the  in- 
debtedness as  against  the  assignors.  Id. 


n.  Against  State. 

Action  against  State  Institution  to  Fix 
Amount  of,  see  Action  or  Suit,  12. 

For  Sugar  Bounty,  see  Bounties,  3. 

Waiver  of,  see  Contracts,  713. 

Promise  not  to  Pay,  as  Defense  against,  see 
Contracts,  655. 

Proper  Party  to  Present  Claim,  see  Parties, 
24. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

11.  The  word  "claim,"  in  a  statute  pro- 
viding that  any  person  having  a  claim 
against  the  state  may  begin  an  action,  is 
equivalent  to  "cause  of  action,"  when  the 
statute  is  passed  for  the  purpose  of  giving 
effect  to  a  constitutional  provision  that  the 
legislature  shall  direct  by  law  in  what  man- 
ner and  in  what  courts  suits  may  be  brought 
against  the  State.  Northwestern  &  P.  II. 
Bank  v.  State,  18  Wash.  73,  50  Pac.  586, 

42:33 

12.  The  claims  which  the  state  auditors 
are  authorized  to  adjust  under  Mich.  Const, 
art.  8,  §  4,  do  not  include  requests,  petitions, 
or  claims  for  appropriations  which  are  mere- 
ly gratuitous,  or  which  may  be  based  upon 
sentimental  or  moral  grounds  which  have 
not  the  semblance  of  any  legal  claim.  Allen 
v.  Board  of  State  Auditors,  122  Mich.  324, 
81  N.  W.  113,  47:117 

13.  An  action  to  recover  damages  for  in- 
juries resulting  from  the  negligence  of  a 
servant  of  the  commonwealth  in  the  per- 
formance of  his  duties  is  not  a  claim,  within 
the  meaning  of  Mass.  Acts  1887,  chap.  24(i. 
which  authorizes  the  maintenance  of  a  suit 
against  the  comimonwealth  to  recover  "all 
claims"  against  it,  whether  at  law  or  in 
equity.  Murdock  Parlor  Grate  Co.  v.  Com. 
152  Mass.  28,  24  N.  E.  854,  8:  399 

14.  A  state  treasurer  properly  refuses  to 
pay  a  warrant  drawn  on  him  by  the  auditor 
for  an  illegal  claim,  under  N.  C.  Code,  § 
3356,  subs.  3,  requiring  him  to  pay  all  war- 
rants legally  drawn  on  him  by  the  auditor. 


CLAIMS,  III. 


478 


Commercial  &  F.  Bank  v.  Worth,  117  N.  C. 
146,  23  S.  E.  160,  30:  261 

15.  An  act  authorizing  the  board  of  claims 
to  rehear,  audit,  and  determine,  and  allow 
reasonable  compensation  for,  meritorious 
services,  etc.,  rendered  to  the  state,  on  a 
claim  which  had  been  previously  rejected 
by  the  board  of  audit  because  of  the  lack  of 
legal  authority  for  employing  such  services, 
does  not  violate  N.  Y.  Const,  art.  3,  §  19, 
which  declares  that  "the  legislature  shall 
neither  audit  nor  allow  any  private  claim  or 
account  against  the  state,"  etc.  O'Hara  v. 
State,  112  N".  Y.  146,  19  N.  E.  6-59,        2:  603 

16.  The  proviso  in  the  amendment  to  N. 
Y.  Const,  art.  7,  §  14,  exempting  existing 
claims  from  the  prohibition  against  allow- 
ing claims  after  they  are  barred,  cannot  ap- 
ply to  any  claim  accruing  after  the  adoption 
of  that  amendment.  Id. 

17.  The  value  of  the  materials  furnished 
by  the  claimant  in  the  performance  of  the 
services  referred  to  in  the  New  York  act  of 
1886,  authorizing  the  board  of  claims  to 
rehear  and  audit  the  claims  of  O'Hara  & 
Company  for  work  and  services  performed 
by  them  for  the  state  under  the  directions 
of  the  quarantine  officials,  constitutes  a  part 
of  the  claim.  Id. 

18.  When  individuals  voluntarily  furnish 
property  or  render  valuable  services  to  the 
state  at  the  request  of  state  officers,  with 
the  expectation  of  payment,  the  legislature 
may  ratify  the  acts  of  such  officers,  al- 
though previously  unauthorized,  and  make 
the  state  liable  for  the  payment.  Id. 

19.  Legislative  ratification  of  an  un- 
authorized contract  by  officers  on  the  part  of 
the  state  gives  a  claim  therefor  a  legal 
existence  for  the  first  time;  and  the  fact 
that  a  claim  against  the  state  on  the  im- 
perfect obligation  previously  existing  would 
have  been  barred  by  lapse  of  time  does  not 
make  such  legislative  ratification  and  au- 
thority to  allow  such  claim  invalid,  under  N. 
Y.  Const,  art.  7,  §  14,  providing  that  no 
claim  shall  be  audited,  or  allowed,  or  paid 
which,  as  between  citizens  of  the  state, 
would  be  barred  by  lapse  of  time.  Id. 

20.  Under  an  act  submitting  to  a  commis- 
sion or  court  the  "legal  rights"  of  the  par- 
ties, claims  alleged  to  rest  upon  "equity  and 
good  conscience,"  but  not  shown  to  be  recog- 
nized by  any  established  doctrine  of  equity 
jurisprudence,  cannot  be  considered.  West- 
ern &  A.  R.  Co.  V.  State  (Ga.  Special  .ludi- 
cial  Commission),  14:  438 

21.  An  action  to  have  a  judgment  award- 
ing a  lien  on  lands  in  favor  of  the  state  de- 
creed to  be  subiect  to  a  prior  mortgage  held 
by  the  plaintiff  is  within  the  jurisdiction 
conferred  by  Wash,  act  March  20,  1895,  of 
actions  against  the  state  by  any  person 
"having  any  claim  against  the  state." 
Northwestern  &  P.  H.  Bank  v.  State,  18 
Wash.  73,  50  Pac.  586,  42:33 

22.  The  unnecessary  destruction  of 
healthy  and  valuable  cows  by  state  of- 
ficials who  suppose  them  to  be  diseased, 
after  applying  the  so-called  tuberculin  test, 
does  not  give  the  owner  "any  just  claim 
against  the  state,"  within  the  meaning  of 


Wis.  Rev.  Stat.  §  3200,  as  that  relates  only 
to  claims  which,  if  allowed,  would  render 
the  state  a  debtor  to  the  claimapt,  and  does 
not  include  a  demand  based  upon  unlawful 
and  tortious  acts  of  the  officers  or  agents  of 
the  state.  Houston  v.  State,  98  Wis.  481, 
74  N.  W,  111,  42:  39 

23.  The  trust  imposed  upon  the  states  by 
the  act  of  Congress  refunding  the  direct  tax 
levied  in  1861,  to  hold  the  same  for  the  ben- 
efit of  the  persons  from  whom  it  was  col- 
lected, is  not  binding  upon  states  which  paid 
the  tax  out  of  their  treasuries,  and  did  not 
collect  it  by  a  levy  upon  their  inhabitants. 
Davis  v.  Com.  164  Mass.  241,  41  N.  E.  292, 

30:  743 
Necessity  of  presenting. 

24.  The  presentation  to  the  board  of  ex- 
aminers, which,  by  Cal.  Pol.  Code,  §  672,  is 
required  before  the  comptroller  can  draw 
his  warrant  for  a  claim,  is  not  excused  by 
Cal.  act  March  31,  1891,  in  case  of  a  claim 
for  a  bounty  for  killing  coyotes,  although 
that  act  provides  .for  proving  the  claim  and 
obtaining  a  certificate  thereof  from  the 
board  of  supervisors.  Ingram  v.  Colgan,  106 
Cal.  113,  39  Pac.  437,  28:  187 


m.  Editorial    Notes. 

See   also   Alabama  Claims. 

§  I,  Generally, 

Act  creating  court  of  claims.     2:  572.* 

Court  of  claims;   jurisdiction,  practice,  and 

procedure.     3:  463.* 
Against     United     States;     assignment;     2: 

571.* 
Limitation  of  time  to  present.     7:  861.* 
§  2,  What  claims  are  valid  demands  against 

state. 
Generally.     42:  33. 

Summary  of  cases  in  regard  to  claims.  42: 
37. 
As   affected  bv  the  state  Constitution. 

42:  37. 
As  affected  by  the  construction  of  stat- 
lites.     42:  37. 
Allowing.     42 :  37. 
Creating  a   special   fund   for.     42: 

37. 
Limiting.     42 :  38. 
Prohibiting.     42 :  38. 
Repealing    or    altering    prior    stat- 
utes  allowing.     42:  38. 
Where  there  is  no  statute.     42:  38. 
As  to  priority.     42:  38. 
Arising  on  contracts.     42:  38. 
Contrary  to  public  policy.     42:  39. 
Where  the  claimant  was  estopped.     42: 

39. 
Affected  by  the  evidence.    42:  39. 
Affected  by  the  remedy.     42:  39. 
Where   there    was    an    injunction.     42: 

39. 
As  to  the  auditing.     42:  39. 
A  condition   precedent  not  being  com 

plied  with.     42 :  39. 
As  to  party.     42:  39. 
Affected  by  the  statute  of  limitations. 
42:  39. 


471 


CLAIRVOYANCE— CLERKS. 


42: 


42: 


For  per   diem.     42:  40. 
For  costs.     42:  41. 
For  fees.     42 :  44. 
For   services.     42:  47. 
For  expenses.  42:  49. 

For   attorneys'   fees.     42:  51. 
For  salary.     42:  53. 

As  to  the  performance  of  condition  pre 

cedent.     42:  53. 
As  to  priority.     42:  54. 
To  be  paid  out  of  a  special  fund, 
54. 
On  contracts.     42:  54. 
Generally.     42:  54. 
As  common  carrier  or  wharfinger, 
.    56. 
Of   sale.     42:  55. 

On  public  buildings  and  improvements. 

42:  56. 
For  prison  labor.     42:  59. 
For    printing.     42:  59. 
For  supplies.     42:  61. 
For  interest.     42:  62. 
By  public  institutions.     42:  63. 
For  bounty  and  reward.     42:  63. 
For    damages    from    negligence    and    torts. 

42:  64. 
Under  public  health  laws.     42:65. 
For   injuries  arising  on   canals   and   water- 
courses.    42:  65. 
Generally.     42:  65. 

Claims    on    account    of    revocation    of 
grant,  or  for  abandonment. 
42 :  67. 
As   affected  bv   statute   of  limitations. 

42:  67. 
For  personal  injuries.     42:  69. 
For    refunding    monev    paid    to    the    state. 
42: '69. 


CLAIRVOYANCE. 


See  Physicians  and  surgeons,  42. 


CLAMS. 


See  Fisheries,  III. 


CLASSIFICATION. 


Under  Civil  Service  Laws,  see  Civil  Service, 

20,  21. 
Of  Citv.  Change  in,  see  Constitutional  Law, 

in7. 

As  AfTocting  the  Law  of  the  Land,  see  Con- 
stitutional Law.  782. 

Of  Railroads  for  Privilege  Taxation,  see 
Constitutional  Law,  662. 

By  Statute,  see  Constitutional  Law,  II.  a; 
Statutes,  I.  g. 

In  Taxation,  see  Taxes,  .30-32.  578,  579. 


CLASS  LEGISLATION. 

See   Constitutional   Law,   II.   a. 


CLEARANCE  CARD. 

Duty  to  Give  to  Discharged  Employee,  see 
Master  and  Servant  44-46. 

Editorial   Notes. 

Duty  to  give  to  discharged  employee.     62: 
922. 


CLEARING   HOUSE. 


Business  of,  see  Banks,  IV.  d;  VIIL  §  17%. 
Time  for  Presenting  Checks  in  City  Con- 
taining, see  Checks,  9. 


CLEAR  RECEIPT. 
Estoppel  by  Giving,  see  Estoppel,  140. 


CLEPTOMANIA. 
See  Kleptomania. 

♦>» 


CLERGYMEN. 


Liability  for  Libel  or  Slander,  see  Libel  and 
Slander,  33,  106. 

Editorial  Notes. 


As  public  oflScers.     17:  245. 
Expression  of  opinion  of,  as  libel  or  slander. 
28:  674. 


CLERKS. 

I.  Of   United    States    Court. 
II.  Of  State  Court. 
III.  Editorial  Notes. 

Liability  for  Taking  Defective  Abstract,  see 

Abstracts,  and  also  infra,  HI. 
Liability   for   Loss   Through  Bank   Failure, 

see  Bonds,  79,  80. 
Acknowledgment    of    Instrument    Adopting 

Child,  see  Acknowledgment,  7. 
Time  to   Object  to   Claim   as   Custodian   of 

Note,  see  Appeal  and  Error,  588. 
Claims  of,  see  Claims,  2. 
Election  to  Fill  Vacancy,  see  Elections.  65. 
Refusal  of  County  Clerk  to  Certify  Return 

of  Canvassers,  see  Elections,  266,  207. 
Embezzlement  by,  see  Embezzlement,  2,  3. 
Garnishment    of,    see   Garnishment,    11,    12, 

nO-52. 
Appointment  by,   of  Commissioners   to   Set 

Off  Homestead,  see  Homestead,  71. 
Indictment  of,  for  Illejal  Registration,  see 

Indictment,  etc..  32. 


CLERKS,  I. 


475 


Entry  of  Judgment  by  Confession  in  Vaca- 
tion, see  Judgment,  9. 

Attachment  of  Fund  in  Custody  of,  see 
Levy  and  Seizure,  43. 

Of  House  of  Representatives,  Mandamus  to, 
see  Mandamus,  55. 

Compelling  Acceptance  of  Office  of,  see  Man- 
damus, 66. 

Eligibility  of  Women  to  Office  of,  see  Of- 
ncers,  17,  18,  and  also  infra,  IIL 

Nature  of  Office,  see  Officers,  117. 

Salary  of,  see  Officers,  178,  189. 

Special  Legislation  as  to,  see  Statutes,  404. 

Forgery  by,  see  Banks,  135,  147,  155. 

Termination  of  Contract  with,  by  Destruc- 
tion of  Property,  see  Contracts,  674. 

Preference  of,  see  Corporations,  809,  810. 

Priority  of  Claim  of,  for  Wages,  see  Exec- 
utors and  Administrators,  152. 

Sale  of  Liquor  by,  see  Intoxicating  Liquors, 
IIL  c. 

Ground  for  Discharge  of,  see  Master  and 
Servant,  40. 

Imputing  Knowledge  of,  to  Employer,  see 
Notice,  46-50. 

Of  Postmaster,  Liability  for  Embezzlement 
by,  see  Bonds,  87. 

Of  Corporation,  who  are,  see  Corporations, 
559. 

Of  Insurance  Agent,  see  Insurance,  110,  113, 
119-122,  and  also  infra,  IIL 

Of  Legislature,  see  Statutes,  8. 


I.  Of  United  States  Court. 

1.  In  determining  the  number  of  folios  in 
a  final  record,  each  separate  and  distinct 
order,  notice,  or  other  paper  is  to  be  counted 
separately  according  to  the  rule  prescribed 
in  U.  S.  ilev.  Stat.  §  854,  U.  S.  Comp.  Stat. 
1901,  p.  657;  and  the  aggregate  of  the  folios 
so  found  is  the  number  of  folios  in  the  rec- 
ord.    Erwin  v.  United  States,  37  Fed.  470, 

2:  229 

2.  Where  the  clerk  makes  the  copy  sub- 
poenas or  subpoena  tickets,  and  furnishes 
them  to  the  marshal  for  service,  at  the  re- 
quest or  by  the  acquiscence  of  the  district 
attorney,  the  clerk  is  entitled  to  charge  the 
government  for  making  such  copies.  Id. 

3.  When  the  clerk  states  the  accounts  of 
jurors  and  witnesses,  taking  their  affidavits 
as  to  travel  and  attendance,  and  presents 
the  accounts  stated  in  a  report  to  the  court 
for  its  approval,  he  is  entitled  to  the  fee  pre- 
scribed by  the  statute  "for  making  any  re- 
port." The  original  orders  signed  by  the 
judge  should  be  entered  of  record  and  placed 
upon  file  by  the  clerk;  ana  he  is  entitled  to 
a  fee  of  10  cents  for  filing  each.  Id. 

4.  Where,  by  order  of  the  court,  the  clerk 
enters  upon  the  minutes,  as  memorial  sei*v- 
ices  in  respect  to  the  late  Vice  President,  a 
proceeding  in  court  of  official  character,  the 
fee  for  entering  is  properly  chargeable  to  the 
government.  Id. 

5.  The  fees  of  the  clerk  for  entering  or- 
ders approving  accounts  of  marshals,  clerks, 
attorneys,  commissioners,  etc.,  as  required 


by  the  act  of  Congress  February  22,  1875 
(18  Stat,  at  L.  333),  and  for  certified  copies 
of  such  orders  for  the  department,  are  prop- 
erly chargeable  against  the  United  States. 

Id. 

6.  The  clerk  is  entitled  to  charge  for  filing 
each  separate  paper  sent  up  by  commission- 
ers after  hearing  in  criminal  cases,  and  for 
filing  each  separate  account  of  deputy  mar- 
shals, being  the  vouchers  to  accounts  cur- 
rent of  the  marshal.  Id. 

7.  The  clerk  is  entitled  to  a  docket  fee  for 
a  hearing  by  the  court  on  application  for  a 
warrant  for  the  transportation  of  a  defend- 
ant to  another  district,  under  the  provisions 
of  U.  S.  Rev.  Stat.  §  1014,  U.  S.  Comp.  Stat. 
1901,  p.  716.  Id. 

8.  An  attachment  against  a  defaulting 
witness  or  juror  for  contempt  of  court  is  an 
independent  suit,  and  a  "cause"  for  which  a 
docket  fee  is  chargeable,  under  the  fee  bill. 
The  clerk  is  required  to  make  a  final  record 
of  the  proceedings  in  such  a  case.  Id. 

9.  The  offices  of  clerk  and  commissioner 
are  compatible.  A  person  who  holds  two 
distinct  compatible  offices  may  receive  the 
compensation  of  each.  A  clerk  is  given  a 
per  diem  fee  "for  his  attendance"  at  a  ses- 
sion of  the  court;  a  commissioner  is  given  a 
per  diem  fee  "for  hearing  and  deciding," — 
services  clearly  distinct.  *  Id. 

10.  Since  the  passage  of  the  act  of  Con- 
gress of  March  3,  1887  (24  Stat,  at  L.  541), 
it  is  not  necessary  that  business  be  trans- 
acted in  court  to  entitle  the  clerk  to  his 
per  diem;  it  is  sufficient  if  the  court  be 
opened  for  business  by  the  judge.  Id. 

11.  Where  his  deputy  attends  a  session  of 
the  court,  the  clerk  is  entitled  to  a  per  diem 
compensation  for  such  attendance,  even 
though  the  clerk  has  received  a  per  diem  for 
his  personal  attendance  at  a  session  of  the 
court  at  another  place.  Id. 

12.  A  clerk  of  a  circuit  or  district  court  of 
the  United  States  is  entitled  to  compensa- 
tion for  revising  the  jury  box,  at  the  rate 
of  $5  per  day,  for  a  period  not  exceeding 
three  days  for  a  term  of  the  court;  also  to 
charge  15  cents  per  folio  for  recording  the 
names,  residences,  etc.,  of  jurors,  on  a  record 
which  he  is  required  to  make  by  a  rule  of 
court.  Id. 

13.  While  the  general  rule  is  otherwise, 
when  a  statute  is  silent  as  to  compensation, 
if  additional  labor  is  imposed  on  a  clerk,  not 
in  the  line  of  the  duties  ordinarily  apper- 
taining to  such  an  office,  and  if  contempo- 
raneous construction  of  the  statute  by  the 
Attornej'  General,  and  analogous  provisions 
of  other  statutes  subsequently  passed,  indi- 
cate an  intention  to  pay  for  such  services, 
the  officer  is  entitled  to  compensation.       Id. 

14.  The  affidavit  and  other  papers  to  show 
proper  proceedings  before  a  committing  mag- 
istrate, in  compliance  with  the  constitu- 
tional provisions  in  respect  to  criminal  in- 
formation, in  a  court  of  the  United  States, 
should  be  entered  on  the  record;  and  the 
clerk  is  entitled  to  fees  for  making  such 
entries.  Id. 

15.  The  fee  for  attaching  a  seal  to  certi- 


476 


fied  copies  of  commitments  furnished  for 
service  on  a  jailer  by  a  clerk  is  properly 
allowed.  Id. 

16.  A  clerk  of  a  court  of  the  United 
States  is  entitled  to  fees  for  making  certi- 
fied copies  of  writs  of  commitment  to  be 
served  on  the  jailer,  wliere  prisoners  are 
committed  to  the  local  jails  of  the  state.  Id. 


CLERKS,  II— CLOUD  ON  TITLE,  I.  a. 

CLOTHING. 


II.  Of  State  Court. 

Authority  to  Receive  Payment  of  Judgment, 
see  Judgment,  381. 

17.  The  clerk  of  a  court  may  refuse  to 
furnish  to  a  newsipaper  a  copy  of  the  pro- 
ceedings in  a  divorce  case  for  publication,  in 
the  absence  of  any  statutory  provision  on 
the  subject.  Re  Caswell,  18  R.  I.  835,  29  Atl. 
259,  27 :  82 

18.  The  power  given  by  statute  to  a  clerk 
of  court  to  issue  injunction  orders  cannot  be 
exercised  by  his  deputy  under  a  statute  pro- 
viding that  any  duty  enjoined  upon  a 
ministerial  officer  and  any  act  permitted  to 
be  done  by  him  may  be  performed  by  his 
lawful  deputy.  Payton  v.  McQuown,  97  Ky. 
757,  31  S.  W.  874,  31:33 

19.  A  legislative  act  repealing  in  toto  a 
former  statutory  provision  for  the  salary  of 
an  assistant  clerk  of  a  separate  orphans' 
court,  appointed  by  the  clerk  of  such  court 
pursuant  to  authority  conferred  upon  him 
by  the  state  Constitution,  without  making 
any  other  provision  for  his  salary,  is  un- 
constitutional and  void,  its  effect  being  to 
abolish  the  office  of  assistant  clerk.  Reid 
v.  Smoulter,  128  Pa.  324,  18  Atl.  445,    5:  517 


IIL  Editorial  Notes. 

Right  of  women  to  be.    38:  213. 
Women  as  deputy  clerks.     13:  721. 
Liability  of,  for  defective  abstract.     22:  99. 
Liability  on  official  bond  for  loss  by  bank 

failure.    22:  449. 
Employment   of,   by   insurance  agent.      10: 

609.* 
Improper    influence     or     interference     with 

grand  jury  by.    28:  371. 
Maritime  lien  for  services  of.    70:  387. 


CLOSE  SEASON. 


For  Fishing,  see  Fisheries,  I.  b. 
For  Game,  see  Game  Laws. 


CLOSING  STORES. 


Ordinance  for,   see  Municipal  Corporations, 
231. 


Police  Power  to  Regulate  Manufacture  of, 
see  Constitutional  Law,  1022,  105C. 

Made  in  Sweat  Shop,  Judicial  Notice  of 
Danger  to  Health  from,  see  Evidence, 
114. 

■ — ♦-•-♦ 

CLOUD  ON  TITLE. 

I.  When  Action  Lies. 

a.  In  General. 

b.  What   are   Clouds. 

c.  Who  May  Sue;    Title  or  Posses^ 

sion  of  Complainant. 
II.  Defenses;   Counterclaims. 

III.  Conditions. 

IV.  Cross  Bill 

V.  Editorial  Notes. 

Action  at  Law  to  Determine  Adverse  Claim, 

see  Adverse  Claim. 
Dismissal  of  Appeal,  see  Appeal  and  Error, 

369. 
Jurisdiction  of  Suit  to  Prevent,  see  Courts, 

298,  and  also  infra,  V. 
Federal  Jurisdiction  of  Suit,  see  Courts,  349. 
Evidence  in  Action  to  Remove,  see  Evidence, 

y78. 

Sufficiency  of  Evidence  as  to  Real  Plaintiff, 
see  Evidence,  2337. 

Injunction  to  Prevent,  see  Injunction,  180, 
and  also  infra,  V. 

Right  to  Jury  Trial,  see  Jury,  19. 

Parties  to  Action  to  Remove,  see  Parties, 
186. 

Pleading  in  Action  to  Remove,  see  Pleading, 
193. 

Specific  Enforcement  of  Contract  Notwith- 
standing, see  Specifio  Performance,  65. 


I.  When  Action  Lies, 
a.  In  General. 

As  to  Bill  Quia  Timet  Generally,  see  Quia 

Timet. 
In  Case  of  Breach  of  Contract  to  Support 

Minor,  see  Real  Property,  6. 

1.  A  cloud  on  title  may  be  removed  in 
equity,  although  the  defendants  have  not 
done  or  threatened  to  do  anything  in  oppo- 
sition to  the  title  of  the  plaintiffs.  Loring 
v.  Hildreth,  170  Mass.  328,  49  N.  E.  652, 

40:  127 

2.  Title  may  be  quieted  as  against  a 
claim  asserted  under  a  grant  of  the  right  to 
produce  petroleum  and  natural  gas,  when 
this  did  not  constitute  a  lease  and  the  right 
has  terminated  by  its  own  limitation.  Detlor 
V.  Holland,  57  Ohio  St.  492,  49  N.  E.  690, 

40:  266 

3.  The  power  of  a  court  of  equity  to  com- 
pel a  vendor  to  execute  another  deed  where 
one  has  been  lost,  so  as  to  clothe  the  pur- 
chaser with  the  record  title,  has  its  sanction 
in  the  general  jurisdiction  of  a  court  of 
equity.  Kent  v.  St.  Michael's  Church,  136 
N.  Y.  10,  32  N.  E.  704,  18:  331 


CLOUD  ON  TITLE,  I.  b.  c. 


477 


4.  A  judgment  creditor  may  maintain  a 
«uit  in  equity  to  have  the  lien  of  his  judg- 
ment declared  paramount  to  the  title  of  the 
purchaser  at  a  sale  by  the  administrator 
of  the  judgment  debtor,  where  such  sale  was 
made  without  mention  of  the  judgment, 
since  a  motion  would  not  remove  the  ob- 
struction to  the  enforcement  of  the  judg- 
ment, and  a  sale  upon  execution  would 
leave  such  purchaser's  claim  undetermined. 
McAfee  v.  Reynolds,  130  Ind.  33,  28  N.  E. 
423,  18:  211 

5.  An  execution  purchaser  of  land  included 
in  an  assignment  for  creditors  which  is  void 
on  its  face  may  have  his  title  quieted 
against  such  assignment,  where  the  statute 
at  the  time  of  the  purchase  authorized  a 
levy  on  lands  fraudulently  conveyed.  It  is 
not  necessary  for  the  judgment  creditor  to 
seek  aid  in  equity  before  the  sale.  Wolf  v. 
O'Connor,  88  Mich.  124,  50  N.  W.  118, 

"        13:693 

b.  What  are  Clouds. 
See  also  Vendor  and  Purchaser,  41. 

6.  The  legal  owners  in  the  actual  posses- 
sion of  land  can  maintain  a  suit  to  c|uiet 
title  against  adverse  claims  which  becloud 
the  title  and  injure  the  market  value  of  the 
land.  Kincaid  v.  McGowan,  88  Ky,  91,  4  S. 
W.  802,  13:  289 

7.  A  suit  to  declare  a  deed  null  and  void 
on  the  ground  that  it  created  a  determin- 
able fee  which  has  now  ceased  and  deter- 
mined, but  that  rights  are  still  asserted  un- 
der it  adversely  to  the  plaintiff,  presents  a 
proper  case  for  the  removal  of  a  cloud  upon 
title,  although  it  involves  the  construction 
of  the  deed.  Slegel  v.  Herbine,  148  Pa.  236, 
23  Atl.  996,  15:  547 

8.  A  deed  of  other  instrument  purport- 
ing to  convey  land,  that  shows  upon  its  face 
that  the  grantors  therein  were  out  of  pos- 
session of  the  land  granted  at  the  time  of  its 
execution,  and  that  such  land  at  the  time 
was  adAersely  held  by  another,  is  void  upon 
its  face,  as  to  such  adverse  occupant,  and, 
as  to  him,  does  not  create  such  a  cloud  upon 
his  title  as  will  authorize  the  interposition 
of  a  court  of  equitv  on  his  behalf  for  its  re- 
moval. Reyes  v.  Middleton,  36  Fla.  99,  1 
So.  937,  29:  66 

9.  An  action  to  quiet  title  to  real  prop- 
erty and  remove  a  cloud  therefrom,  directed 
against  an  apparent  lien  by  way  of  tax  or 
special  assessment,  is  only  maintainable  in 
case  such  tax  or  assessment  itself  is  abso- 
lutely void,  under  Xeb.  Comp.  Stat.  1901, 
chap.  77.  art.  1,  §  144,  providing  that  no  in- 
junction shall  be  granted  to  restrain  the 
collection  of  any  tax,  unless  the  tax  be  lev- 
ied for  an  illegal  or  unauthorized  purpose. 
Philadelphia  Mortg.  &  T.  Co.  v.  Omaha,  63 
Xeb.  2P0,  88  X.  W.  523,  57:  1.50 

10.  Equity  has  jurisdiction  of  a  suit  bv 
a  reversioner  to  remove,  as  a  cloud  on  his 
title,  a  tax  deed  acquired  by  a  lessee  for 
years,  who  has  covenanted  to  pay  the  tax6s, 
under  the  power  to  relieve  from  fraud  and 
enforce  trusts.  Oppenheimer  v.  Levi,  96  Md. 
296,  54  Atl.  74,  60:  729 


11.  A  claim  of  the  right  to  inspect  beer 
under  a  statute  cannot  constitute  a  cloud 
upon  title  which  equity  may  prevent,  even 
if  a  cloud  upon  title  can  arise  with  refer- 
ence to  personal  property,  when  the  inspec- 
tion law  makes  no  charge  against  property, 
and  provides  for  no  remedy  except  by  in- 
dictment or  criminal  information  against  in- 
dividuals. State  ex  rel.  Kenamore  v.  Wood, 
155  Mo.  425,  56  S.  W.  474,  48:596 

c.  Who    May   Sue;    Title  or   Possession   of 
Complainant. 

For  Editorial  Xotes,  see  infra,  V. 

12.  A  suit  to  set  aside  a  tax  sale  and  to 
have  the  tax  deed  declared  void  may  be 
maintained  by  a  mortgagee  of  the  land,  or 
by  any  person  who  can  show  such  an  in- 
terest in  it  as  will  entitle  him  to  redeem 
from  the  tax  sale.  Miller  v.  Cook,  135  111. 
190,  25  N.  E.  756,  10:  292 

13.  An  action  to  quiet  title  may  be  main- 
tained although  founded  simply  on  a  title  by 
prescription  arising  from  ten  years'  adverse 
possession  of  the  land.  Cramer  v.  Clow,  81 
Iowa,  255,  47  X.  W.  59,  9:  772 

14.  When  possession  has  been  taken  of 
vacant  land,  after  payment  of  taxes  for 
seven  years  under  color  of  title,  another  per- 
son, having  notice  of  such  reduction  to 
possession,  has  no  right,  although  claimini,' 
title,  to  take  possession  except  by  due  legal 
procedure;  and,  if  he  takes  possession  by 
any  other  means,  he  i  .  a  mere  trespasser, 
and  has  no  standing  to  maintain  a  suit  to 
quiet  title.  Gage  v.  Hampton,  127  111.  87,  20 
N.  E.  12,  2:  512 
Necessity  of  possession. 

For  Editorial  Xotes.  see  infra.  V. 

15.  Possession  of  land  by  the  plaintiff  is 
not  necessary,  under  the  Washington  stat- 
utes, in  order  to  maintain  an  action  to  quiet 
title.  Wagner  v.  Law,  3  Wash.  500,  28  Pac. 
1109,  ^  15:  784 

16.  Possession  is  not  necessary  to  enable 
a  reversioner  to  maintain  a  suit  in  eqtiity 
to  remove  the  cloud  from  his  title,  where 
the  term  lessee,  after  having  covenanted  to 
pay  the  taxes,  neglects  to  do  so,  and  ac- 
quires title  to  the  property  at  a  tax  sale. 
Oppenheimer  v.  Levi,  96  Md.  296,  54  Atl.  74, 

60:  729 

17.  Federal  courts  in  equity  have  cogni- 
zance of  bills  quia  timet,  altliouih  complain- 
ant is  not  in  possession,  if  the  local  legisla- 
ture gives  the  remedy  in  such  case,  unless 
defendant  would  be  entitled  to  a  jury  trial 
according  to  the  course  of  common  law. 
Grand  Rapias  &  I.  R.  Co.  v.  Sparrow,  36  Fed. 
210,  1:480 
What  constitutes  possession. 

For  Editorial  Xotes,  see  infra,  V. 

18.  Heirs  at  law  are  not  in  possession  of 
their  ancestor's  real  estate  within  the  mean- 
ins  of  a  statute  permitting  persons  in  pos- 
session to  maintain  a  suit  to  determine  ad- 
verse claims  to  real  estate  if  there  exists  a 
valid  probate  of  the  ancestor's  will  which 
places  other  persons  in  possession  of  the 
property,  although  the  object  of  the  action 


478 


CLOUD  ON  TITLE,  II— CLUBS. 


is  to  have  the  will  declared  void  and  a  cloud 
on  plaintiff's  title.  Chilcott  v.  Hart,  23 
Colo.  40,  45  Pac.  391,  35:  41 


U.  Defenses;  Counterclaims. 

19.  Defects  in  the  title  of  a  person  in  pos- 
session of  land  will  not  defeat  his  action  for 
quieting  the  title  as  against  a  stranger  who 
claims  the  land,  but  has  no  right  or  title 
thereto.  Detlor  v.  Holland,  57  Ohio  St.  492, 
49  N".  E.  690,  40:  2G6 

20.  A  purchaser  of  land  on  execution  sale 
can  maintain  a  suit  to  set  aside  a  prior  con- 
veyance by  the  execution  debtor  which  is 
fraudulent  as  to  creditors;  and  the  judg- 
ment creditor,  by  becoming  a  purchaser  at 
the  sale,  does  not  waive  his  right  to  relief 
in  equity.  Wagner  v.  Law,  3  Wash.  500,  28 
Pac.  1109,  15:  784 

21.  In  an  action  to  qiiiet  title,  where  the 
validity  of  the  plaintiff's  claim  depends  on 
the  question  of  notice  of  the  rights  of  the 
defendants,  being  a  perfect  title  if  he  had 
no  notice,  but  not  valid  if  he  had  notice,  the 
(juestion  whether  defendants  are  barred  by 
statute  from  setting  up  their  claim  to  the 
property  is  immaterial.  Randall  v.  Duff,  79 
Gal.  115,  21  Pac.  610.  3:  754 

22.  A  claim  of  title  in  himself,  with  a  de- 
mand that  it  be  quieted,  may  be  set  up  by 
defendant  as  a  counterclaim  in  an  action  to 
determine  adverse  estates  and  intei^est  in 
real  estate,  under  IST.  D.  Comp.  Laws,  § 
5449.  Power  v.  Bowdle,  3  N.  D.  107,  54  N. 
W.  404,  21 :  328 


III.  Conditions. 

23.  Reimbursement  of  the  amount  paid  by 
a  third  person  for  a  tax  title  void  because 
the  assessment  was  against  a  deceased  per- 
son is  not  a  condition  of  equitable  relief 
agrainst  the  tax  sale  as  a  cloud  on  title.  Mor- 
rill v.  Lovett,  95  Me.  165,  49  Atl.  666, 

.56:  6,34 

24.  One  who  comes  into  a  court  of  equity 
asking  to  have  a  tax  deed  set  aside  as  a 
cloud  upon  his  title  must  tender  or  offer  to 
pay  to  the  holder  of  the  certificate  of  pur- 
chase the  amount  of  the  lawful  and  valid 
taxes  due  upon  the  land,  toeether  with  the 
interest  thereon.  Miller  v.  Cook,  135  111.  190. 
25  N.  E.  756,  10:  292 

25.  It  is  error  for  the  court  to  fail  to 
have  an  accoimt  taken  of  the  taxes  actually 
due  on  the  land  and  to  decree  their  pay- 
ment, in  an  action  brought  to  have  a  tax 
fleed  set  aside  as  a  eloud  upon  the  title,  in 
which  the  complainant  offers  to  pay  the 
sum  equitably  due.  Id. 

26.  The  saim  paid  as  a  consideration  for 
a  grant  of  the  right  to  produce  oil  and  gas 
from  land  need  not  be  returned  in  order  to 
maintain  an  action  to  quiet  title  after  the 
prant  has  expired  bv  its  own  limitation. 
Detlor  V.  Holland,  57  Ohio  St.  492.  49  X.  E. 
690.  40:  266 


27.  Expenses  incurred  in  drilling  wells 
after  the  expiration  of  a  grant  of  the  right 
to  produce  oil  and  gas  and  after  notice  not 
to  drill  such  wells  cannot  be  recovered  from 
the  grantor  on  his  enforcement  of  his  right 
by  quieting  title.  Id. 


IV.  Cross  Bill. 

28.  A  cross  bill  in  a  suit  to  remove  a  cloud 
from  title  will  not  be  dismissed  because  de- 
fendant denies  the  title  to  have  been  in  the 
person  under  whom  both  parties  claim,  at 
the  time  of  the  levy  of  a  writ  of  attach- 
ment under  which  plaintiff  claims,  where 
this  denial  is  qualified  and  explained  by  al- 
legations showing  that  a  conveyance  can- 
celed at  suit  of  defendant  was  the  founda- 
tion of  the  denial.  West  v.  People's  Bank, 
67  Miss.  729,  7  So.  513,  8:  727 

29.  Relief  will  not  be  denied  on  a  cross- 
bill  in  a  suit  to  remove  a  cloud  on  title,  be- 
cause defendant  shows  a  perfect  title  on 
which  he  might  maintain  ejectment.  Id. 


V.  Editorial  Notes. 

Jurisdiction  of  court  of  equity  to  remove, 
generally.     8:  727.* 
Jurisdiction  founded  on  inadequacy  of 

legal  remedy.    8:  727.* 
Possession  as  essential  to  right  of  ac- 
tion.   8:  728.* 
Remedy  of  party  out  of  possession. 
8:  728.* 

Jurisdiction  of  equity  to  avert.    10:  293.* 

Jurisdiction  of  court  of  equity  to  quiet 
title.     10:  297.* 

Jurisdiction  of  equity  of  suit  to  remove 
cloud  on  title  to  land  in 
other  state  or  countrv. 
69:682. 

Injunction  to  prevent.    8:  729.* 

Injunction  against  tax  as  a  cloud.    22:  705. 

When  sale  for  taxes  will  be  restrained. 
10:  294.* 

Right  of  purchaser  on  execution  to  set 
aside  fraudulent  convey- 
ance.   15:  784. 

Bill  to  quiet  title  on  invalid  sale  of  prop- 
ertv  for  sewer  assessment. 
60:' 243. 

Who  may  maintain  bill  to  quiet  title  or 
remove  cloud.    10:  295.* 

Necessity  and  sufficiency  of  possession  a» 
condition  of  bill  to  remove. 
10:  205.* 


CLUBS. 

Expulsion  of  Members,  see  Associations,  27— 
33. 

Underwriters  Social  Club  as  Unlawful  Com- 
bination, see  Conspiracy,  198. 

Loan  by  Member  of,  for  Gambling  in,  see- 
Contracts,  522. 


COAL— COCAINE. 


479 


Right  of  Member  to  Inspect  Membership 
Roll,  see  Corporations,  515,  516. 

Review  of  Expulsion  of  Member,  see  Courts, 
228,  and  also  infra,  Editorial  Notes. 

Political,  Nominations  by,  see  Elections,  286. 

Sale  of  Liquor  by,  see  Injunction,  156;  In- 
toxicating Liquors,  III.  b,  and  also  infra. 
Editorial  Notes. 

Levy  on  Stock  in,  see  Levy  and  Seizure,  16. 

Management  of,  as  Lottery,  see  Lottery,  31. 

Manadmus  to  Compel  Reinstatement  of 
Member,  see  Mandamus,  194,  and  also 
infra,  Editorial  Notes. 

Exemption  of,  from  Taxation,  see  Taxes, 
275. 

1.  An  incorporated  social  club  is  not  en- 
gaged in  trade  or  carrying  on  business  with- 
in the  meaning  of  statutes  concerning  li- 
censes. State  v.  Boston  Club,  45  La.  Ann. 
585,  12  So.  895,  .  20:  185 

2.  The  violation  by  an  incorporated  social 
cub,  of  a  law  forbidding  the  sale  of  intoxi- 
cating liquors,  is  such  an  abuse  and  misuse 
of  its  cnarter  powers  and  franchises  as  to 
furnish  legal  cause  for  the  annulment  of  its 
charter.  State  v.  Easton  Social,  L.  &  M. 
Club,  73  Md.  97,  20  Atl.  783,  10:  64 

3.  Stockholders  of  an  incorporated  club  in 
which  gambling  is  carried  on,  from  the  win- 
nings of  which  they  receive  some  interest, 
however  small,  must  be  regarded  in  such 
matter  as  individuals.  White  v.  Wilson, 
100  Ky.  367,  38  S.  W.  495,  37:  197 

Editorial   Notes. 

Mandamus  to  compel  reinstatement  in.  8: 

195.* 
Power    of    courts    to    review    decisions    of, 

against  members.    49 :  359, 

362,  365. 
Taxation  of  social  clubs  engaged  in  sale  of 

liquor.     10:  82.* 
Sale  of  intoxicating  liquor   by   social  club. 

2:494;*    6:  128;*    12:  412.* 


COAL. 

Conspiracy  against  Retail  Dealer  in,  see 
Action  or  Suit,  104. 

Adverse  Possession  of,  see  Adverse  Posses- 
sion, 69,  71. 

Combination  of  Producers  of,  or  Dealers  in, 
see  Conspiracy,  136-141. 

Class  Legislation  as  to  Employees  in  Mine, 
see  Constitutional  Law,  553. 

Due  Process  in  Determining  Wages  of  Min- 
ers, see  Constitutional  Law,  720-723. 

Police  Regulation  of  Wages  of  Miners,  see 
Constitutional  Law,  1041,  1042. 

Requiring  Inspection  of  Mines,  see  Constitu- 
tional Law,  1051,  1052. 

Validity  of  Option  Contract  for  Purchase  of, 
see  Contracts,  539-541. 

Measure  of  Damages  for  Mining,  see  Dam- 
ages, 412,  413. 

Presumption  as  to  Partition  of,  see  Evi- 
dence, 711. 

Limitation  of  Action  for  Injury  to  Surface 
by  Mining,  see  Limitation  of  Actions, 
139. 


Drilling  for  Oil  or  Gas  Wells  through,  see 

Mines    61,    and    also    infra.    Editorial 

Notes. 
As  J;o  Mines  Generally,  see  Mines,  II.  a. 
Unloading  of,  as  Nuisance,  see  Nuisances,  29. 
Action  for  Removal  of,  from  Bed  of  Street, 

see  Parties,  22. 
Partition  of,  see  Partition,  18. 
Taxation  of,  see  Taxes,   105,  106,  and  also 

infra.  Editorial  Notes. 
Pollution  of  Water  in  Mining  of,  see  Waters, 

288. 

Editorial  Notes. 

As    real    estate    for    purposes    of    taxation. 

15:297. 
Right  to  drill  through  coal  of  another  own- 
er.    25 :  225. 


COAL  CARS. 

Lien  for,  see  Mechanics'  Liens,  45, 

♦*"♦ 

COAL  DEALERS. 

Conspiracy  against,  see  Action  or  Suit,  104. 
Combination  of,  see  Conspiracy,  136-141. 


COAL  HOLE. 


In  Sidewalk,  see  Highways,  317,  318,  320, 
321,  330,  331;   Indemnity,  4. 

Editorial  Notes. 

Liability  of  landlord  to  third  person  as  to. 
26:  199. 

♦  •  » 


COAL  MINES. 

As  an  Improvement,  see  Mechanics'  Liens, 
75. 

In  General,  see  Coal;  Mines,  II.  a. 

♦-•-♦ • 


COAL  SHEDS. 
As  Nuisance,  see  Nuisances,  80. 
♦-•-♦ 

COASTING. 

Liability  of  City  for  Injury  by,  see  Munic- 
ipal Corporations,  482,  483. 

Editorial   Notes. 

In  street,  aa  a  nuisance;   municipal  power 
over.    39 :  679. 


COCAINE. 

Transportation  by  Carrier  of  Person  under 
Influence  of,  see  Carriers,  442,  443 


480 


C.  O.  D.— COLD     STORAGE. 


Use  of,  as  Affecting  Criminal  Responsibility, 
see  Criminal  Law,  20. 


C.  0.  D. 

Liability  of  Carrier  for  Money  Collected  C. 

O.  D.,  see  Carriers,  779-781. 
Liability  for  Delivering  Liquor  Consigned  C. 

O.  D.,  see  Intoxicating  Liquors,   101. 
Delivery  of  Liquor  to  Carrier  Marked  C.  O. 

D.,  see  Intoxicating  Liquors,  147,  148. 
Passing  of  Title  to  Goods  Shipped  C.  O.  D., 

see  Sale,  19. 
Diligence  in  Examining  Package  Sent  C.  O. 

D.  before  Paying  for,  see  Trial,  160. 

Editorial  Notes. 

Transfer  of  title  on  delivery  to  carrier  of 
goods  sent  C.  0.  D.  22: 
426. 


CODE. 

Bid  for  Printing  of,  see  Contracts,  862. 

Receiver  of,  see  Receivers,  19. 

Property  in  Secrets  in,  see  Secrets,  1,  2. 

Incorporation  of,  into  Statute,  see  Statutes, 
17. 

Incorporation  of  Defective  Statute  into,  see 
Statutes,  156. 

Amendment  or  Revision  of,  see  Statutes, 
250,  254,  255,  258. 

Effect  of  Adoption  or  Revision  of,  see  Stat- 
utes, 573-576,  591. 

Special  Code  of  Procedure  in  Road  Cases, 
see  Statutes,  370. 

Construction  of  Section  of,  see  Statutes,  416, 
530. 

Editorial  Notes. 

Power  of  legislature  to  enact  or  amend  by 
single  statute.     55:  833. 


CODICIL. 

Contract  against  Obtaining,  see  Contracts, 
432. 

Parol  Evidence  as  to,  see  Evidence,  1144. 

Sufficiencv  of  Proof  as  to,  see  Evidence, 
2333.' 

Validity  of,  as  Regards  Rule  against  Per- 
petuities, see  Perpetuities,  6,  34. 

See  also  Wills,  I.  f. 


COERCION. 


Of  Jury,  see  Appeal  and  Error,  1130,  1131; 
New  Trial,  34-39;  Trial,  891. 

Editorial   Notes. 

Of  disagreeing  jury.    16:  643. 


COERCIVE  DISTRIBUTION. 
Bill  for.  see  Pleading,  424,  425. 


COEXECUTORS. 

Powers  of,  see  Executors  and  Administra- 
tors, 41. 

Liability  for  Acts  of,  see  Executors  and  Ad- 
ministrators, 88-90. 


COFFEE  GRINDER. 

Negligence  in  Use  of,  see  Negligence,  44. 

♦•» 

COG  WHEELS. 

Failure  to  Guard,  see  Master  and  Servant, 
139,  289-293. 


COHABITATION. 


Presumption  of  Marriage  from,  see  Evidence, 

262,  265. 
As  Evidence  of  Marriage,  see  Evidence,  1478, 

1479,  1917,  and  also  infra,  V. 
Effect  of,  see  Marriage,  16,  17,  23-26,  40-45, 

64. 

Editorial  Notes. 

As  Evidence  of  Marriage,  see  Marriage,  V. 

§  4. 
As  consideration  for  subsequent  promise  to 

pay.    53 :  357. 


COINS. 

Loan  of,  see  Bailment,  2. 
Opinion  Evidence  as  to  Value  of,  see  Evi- 
dence, 1326. 
As  Money,  see  Money. 

Editorial  Notes. 

Contracts  to  pay  in.    29:  512. 
Judgments  for.     29:  593. 


COKE  OVEN. 
As  Nuisance,  see  Nuisances,  25. 


COLD  STORAGE. 


Charges  for,  see  Bailment,  13,  14. 

Liability  for  Injurv  to  Goods  VThile  in,  see 

Bailment,  34-36. 
Limitation  of  Liability,  see  Bailment,  18. 
Illegal  Contract  for,  see  Contracts,  379.' 

Editorial  Notes. 

Liability  of  bailee  for  damage  to  goods  re- 
ceived for  cold  storage. 
52:  106. 


COLLATERAL  ATTACK— COLLEGES. 


481 


COLLATERAL  ATTACK. 

On  Decisions  and  Assessments  of  Comptrol- 
ler of  Currency,  see  Banks,  20. 

On  Corporate  Existence,  see  Corporations, 
676. 

On  Pardon,  see  Criminal  Law,  253. 

On  Appointment  of  Administrator,  see  Exec- 
utors and  Administrators,  21-25. 

On  Appointment  of  Guardian,  see  Guardian 
and  Ward,  4. 

On  Order  Vacating  Highway,  see  Highways, 
386. 

On  Judgment,  see  Judgment,  IL  c. 

On  Validity  of  Judicial  Sale,  see  Judicial 
Sale,  16,  17. 

On  Annexation  to  City,  see  Municipal  Cor- 
porations, 26,  27. 

On  Acts  of  Public  Officer,  see  Officers,  167 
223. 

On  Vote  by  Aldermen,  see  Parliamentary 
Law,  27. 

On  Partition  Sale,  see  Partition,"'  28. 

On  Local  Improvement  Assessment,  see  Pub- 
lic Improvements,  155,  199. 

On  Appointment  of  Receiver,  see  Receivers, 
17,  112. 

On  Title  to  Land  in  Replevin  Suit,  see  Re- 
plevin, 28. 

On  Assessments,  see  Taxes,  457. 

On  Trustee's  Appointment,  see  Trusts,  113. 

On  Service  of  Summons,  see  Writ  and  Pro- 
cess, 84. 


COLLATERAL  CONTRACTS. 

Statute  of  Frauds  as  to,  see  Contracts,  I. 
e,  2. 


COLLATERAL-INHERITANCE  TAX. 

See  Taxes,  V. 

#>» 

COLLATERAL    SECURITY. 

Effect  of,  on  Claim  in  Insolvency,  &.eo  In- 
solvency, 16-22. 
See  also  Pledge  and  Collateral  Set^'uritv. 


COLLECTION  AGENCY. 

Measure  of  Damages  for  Libel  by,  see  Dam- 
ages, 291. 

Libel  by,  see  Libel  and  Slander,  1,  2,  47,  48, 
122. 

See  also  Commercial  Agencies. 


COLLECTOR. 

Tax  for  Reimbursement  of,  see  Taxes,  89. 
Liability  of,  see  Taxes,  512. 

Editorial  Notes. 

Penalty  as  limit  of  liability  on  bond.     65: 

393. 
Execution  of  collector's  bond  on  condition 

that     others     shall     sign. 

45:  338. 


COLLECTIONS. 


COLLEGE  CAMPUS. 
Covenant  as  to,  see  Covenant,  57;  Deeds,  43. 


COLLEGES. 


By  Bank,  see  Banks,  IV.  b. 
Of  Costs,  see  Costs  and  Fees,  IL 
Of  Tax,  see  Taxes,  III.  a;  V.  d. 
L.R.A.  Dig.— 31. 


Definiteness  of  Devise  for,  see.  Charities,  98. 

Authority  to  Designate  Beneficiaries  of 
Trust,  see  Charities,  114. 

Protection  of  Property  of,  see  Constitutional 
Law,  635. 

Gift  or  Subscription  to,  see  Bills  and  Notes, 
19,  40,  41;  Contracts,  88,  795,  796;  Par- 
ties, 64. 

Contract  to  Establish,  see  Contracts,  320, 
321. 

Liability  of  Promoters  of,  see  Corporations, 
333. 

Covenant  as  to  Campus,  see  Covenant,  57; 
Deeds,  43. 

Estoppel  to  Deny  Liability  on  Agreement  of 
Subscribers,  see  Estoppel,  294. 

Infant's  Liability  for  Rooms  Leased  While 
Attending,  see  Infants,  71. 

Insurable  Interest  in  Life,  see  Insurance, 
147. 

Levy  on  Scholarship  in,  see  Levy  and  Seiz- 
ure, 18. 

Mandamus  to  Compel  Recognition  of  Diplo- 
ma from,  see  Mandamus,   178. 

Lien  on,  see  Mechanics'  Liens,  66. 

Medical  Colleges,  see  Medical  Colleges. 

Parties  in  Action  as  to,  see  Parties,  133. 

Aid  to  Sectarian  College,  see  Public  Moneys, 
62-64. 

Quo  Warranto  to,  see  Quo  Warranto,  13,  14. 

Belonging  to  State,  see  State  Institutions; 
State  Universities. 

Partial  Invalidity  of  Statute  as  to  Trust- 
ees, see  Statutes,  87. 

Exemption  of,  from  Taxation,  see  Taxes, 
242,  289,  293,  295,  296,  299,  300,  309,  314, 
316,  341,  611,  and  also  infra.  Editorial 
Notes. 

Liberal  Construction  of  Statute  Exempting 
Property  of,  see  Statutes,  520. 

1.  The  provisions  of  the  New  York  Re- 
vised Statutes  as  to  the  incorporation  of  col- 
leges are  not  restricted  to  colleges  incorpor- 
ated by  the  Regents  of  the  University  of  the 
state,  but  apply  also,  except  as  otherwise 
provided,  to  colleges  created  by  sp>ecial  char- 
ters. Re  McGraw's  Estate,  111  N.  Y.  66,  19 
N.  E.  233,  2:387 

2.  A  contract  by  the  board  of  education 


482 


COLLISION. 


of  Dakota  territory,  in  1887,  for  the  instruc- 
tion in  methods  of  teaching  of  a^  class  of 
students  in  a  sectarian  institution,  was 
not  authorized  by  Uw  for  any  definite 
term,  and  was  therefore  abrogated  by  a  re- 
peal of  the  law  under  which  the  contract 
was  made.  Synod  of  Dakota  v.  State,  2  S. 
D.  366,  50  N.  W.  632,  14:  418 

Property. 

3.  An  agreement  made  August  4,  1866, 
between  the  state  of  New  York,  through  the 
commissioners  of  the  land  office  acting  un- 
der and  by  virtue  of  N.  Y.  Laws  1866,  chap. 
481,  and  Ezra  Cornell,  for  the  sale  to  the 
latter  of  the  agricultural  land  scrip  held  by 
the  state,  must  be  construed  to  make  such 
sale  at  30  cents  per  acre,  with  an  additional 
30  cents  if  so  much  should  be  thereafter  re- 
alized on  the  sale  by  the  vendee;  and  the 
fact  that  he  agreed  to  pay  his  profits,  if  any 
were  realized,  into  the  treasury  of  the  state 
as  the  property  of  Cornell  University,  does 
not  make  such  profits  any  portion  of  the 
purchase  price  of  the  scrip.  These  profits 
which  he  hoped  to  realize,  and  which  were 
entirely  speculative,  were  paid  over,  not  as  a 
debt  to  the  state,  but  as  a  gift  of  his  own  to 
the  university.  Re  McGraw's  Estate,  111  N. 
Y.  66,  19  N.  E.  233,  2:  387 

4.  Section  5  of  the  charter  of  Cornell  Uni- 
versity, which  provides  that  "the  corpora- 
tion hereby  created  may  hold  real  and  per- 
sonal property  not  exceeding  $3,000,000  in 
the  aggregate,"  gives  the  measure  of  the 
power  of  the  university  to  take,  as  well  as 
to  hold,  real  property.  It  cannot  be  held  that, 
while  the  power  of  a  college,  given  by  1  N. 
Y.  Rev.  Stat.  460,  "to  take  and  hold  by  gift, 
grant,  or  devise  any  real  or  personal  prop- 
erty the  income  or  revenue  of  which  shall 
not  exceed  the  value  of  $25,000,"  is  enlarged 
in  respect  to  the  power  to  hold  property,  the 
power  to  take  is  thereby  left  unlimited.  Id. 

5.  A  statute  giving  absolute  control  and 
management  of  the  affairs  and  property  of 
a  college  to  the  directors  of  another  similar 
institution  is  a  donation  of  the  property  of 
the  former  to  the  latter,  and  violates  the 
constitutional  provision  which  declares  that 
private  property  shall  be  held  inviolate. 
State  ex  rel.  White  v.  Neff,  25  Ohio  St.  375, 
40  N.  E.  720,  28:  409 
Tuition. 

6.  Admission  into  the  Kansas  State  Uni- 
versity is  made  free  by  statute,  and  the 
board  of  regents  has  no  power  to  collect  a 
fee  of  $5  or  any  other  fee  for  the  use  of  the 
library,  or  to  exclude  students  from  the  use 
of  the'  library  for  the  nonpayment  of  such 
fee.  State  ex  rel.  Little  v.  Regents  of  Uni- 
versity, 55  Kan.  389,  40  Pac.  656,  29:  378 
Dismissal  of  student. 

Compelling  Reinstatement  of  Expelled  Stu- 
dent, see  Mandamus,  148,  149. 

7.  A  law  school  cannot  dismiss  a  student, 
or  refuse  to  permit  him  to  graduate,  for  ir- 
regularity in  attendance,  where  its  custom, 
as  understood  at  the  time  of  his  matricula- 
tion, was  that  all  that  was  necessary  for 
graduation  was  payment  of  the  required 
fees  and  completion  of  the  work,  to  accom- 
plish  which   the   student   might   take    such 


time  as  was  needed.  Baltimore  University 
V.  Colton,  98  Md.  623,  57  Atl.  14,  64:  108 
Conferring  of  degrees. 

8.  No  power  to  confer  the  degree  of  M.  D. 
or  any  other  degree,  is  given  by  a  general 
law  authorizing  incorporation  for  the  pur- 
pose of  maintaining  a  literary  and  scien- 
tific institution.  Townshend  v.  Gray,  62  Vt. 
373,  19  Atl.  635,  "     8:  112 

9.  An  educational  corporation  which  con- 
fers degrees  without  regard  to  merit,  and 
the  trustees  of  which  sign  diplomas  in 
blank,  leaving  them  in  the  control  of  one  of 
its  officers,  who  sells  them,  is  guilty  of  such 
misuse  of  the  powers  conferred  upon  it  as 
requires  its  dissolution  and  a  judgment  oust- 
ing it  of  its  right  to  be  a  corporation,  but  so 
executed  as  not  to  interfere  with  any  legiti- 
mate educational  work  which  it  may  be  do- 
ing. State  ex  rel.  Sheets  v.  Mt.  Hope  Col- 
lege Co.  63  Ohio  St.  341,  58  N.  E-  799, 

52:363 
Editorial  Notes. 

Exemption  of  from  taxation.     10:  376.* 

Property  used  for  profit.    19:  291. 
Collateral-inheritance    tax    on    bequest    to. 

3:206;*  12:  405.* 
Liability  of  property  of  private  educational 

institutions  to  assessment 

for     local     improvements. 

35:  37. 


COLLISION. 


Admiralty  Jurisdiction  of,  see  Admiralty,  3, 
4,  8._ 

Jurisdiction  on  Appeal  from  Award,  see  Ap- 
peal and  Error,  514. 

Jumping  from  Train  or  Car  to  Avoid  Im- 
pending Collision,  see  Carriers,  522-530. 

Presumption  and  Burden  of  Proof  in  Case  of, 
see  Evidence,  468-471,  556. 

Question  for  Jury  as  to,  see  Trial,  290. 

Injury  to  Vessel  at  Wharf,  see  Wharves, 
6,  7. 

1.  Failure  of  a  schooner  to  exhibit  a 
torchlight  will  not  render  her  responsible  for 
collision  with  a  vessel  which  sees  her  lights, 
where  her  position  and  course  are  distinctly 
apparent.  Bigelow  v.  Nickerson,  34  U.  S. 
App.  261,  17  C.  C.  A.  1,  70  Fed.  113,    30:  336 

2.  The  luffing  of  a  vessel  in  the  presence 
of  imminent  danger  of  collision  is  not  such 
a  fault  as  will  preclude  recovery  for  dam- 
ages from  such  collision.  Id. 

3.  A  tug  employed  by  a  ship  to  move  her 
from  her  anchorage  in  the  Wallamet  river  to 
a  dock  in  East  Portland,  under  the  direc- 
tion and  control  of  the  pilot  in  charge  of  the 
ship,  is  not  liable  for  injury  caused  by  a  col- 
lision of  such  vessel  with  another.  In  such 
case  the  tug  and  tow  are  but  one  vessel,  and 
that  one  is  the  tow.  The  Imperial,  13  Sawy. 
639,  38  Fed.  614,  3:234 

4.  A  shipowner  who,  to  exonerate  himself, 
has,  as  bailee  of  the  cargo,  recovered  and  re- 
ceived from  the  owner  of  another  vessel,  in  a 
suit  in  admiralty  for  damages  for  a  collision, 
the  value  of  the  cargo,  as  well  as  damages 


COLLUSION— COMMERCE. 


488 


tor  injury  to  his  ship,  is  answerable  to 
the  owner  of  the  cargo,  or  to  the  insurer 
subrogated  to  such  owner's  right,  for  the 
whole  value  thereof  so  received,  without  de- 
duction for  the  expenses  of  the  litigation  in 
which  it  was  obtained.  Hardman  v.  Brett, 
37  Fed.  803,  2:  173 

Editorial  Notes. 

Liability  of  tug  and  tow.     3:  234.* 
Duty  of  navigator  to  avoid  injury  by  pro- 
pelling      vessel       against 
property    of    others.    64: 
979. 
Limitation  of  liability  for.    7:  56.* 
Allowance  of  interest  on  value  of  property 
destroyed  in  collision,  18:  453 


COLLUSION. 


When  Contract  is  Void  for,  see  Contracts, 
369. 

Dismissal  of  Action  for,  see  Dismissal  or 
Continuance,  7,  11. 

In  Divorce  Suit,  see  Divorce  and  Separation, 
IV.  and  also  infra.  Editorial  Notes. 

Between  Life  Tenants,  Evidence  of,  see  Evi- 
dence, 1793. 

In  Judgment,  see  Judgment,  83,  158. 

Editorial  Notes. 

What  is;  effect  on  suit.  "12:  815.* 
Connivance  as  defense  to  suit  for  divorce. 
12:  524.* 


COLONIAL  ORDINANCE. 

Rights  in  Waters  of  Great  Pond  under,  see 

Waters,  70-73,  105. 
See  also  Ordinance  of  1787. 


COLOR  BOOKS. 


Damages  for  Detention  of,  see  Damages,  389. 
Recipes  for,  see  Recipes. 


COLORED  PERSONS. 

See  Negroes. 


COLOR  MIXERS. 
Usages  of,  see  Custom,  21. 


COLOR  OF  TITLE. 
See  Adverse  Possession,  L  i. 


COLT. 

Ownership   of,   see   Animals,    1;    Judgment, 

177. 
When  Running  at  Large,  see  Animals,  49. 
Insurance  of,  see  Insurance,  472. 
Assumption  of  Risk  of  Riding,  see  Master 

and  Servant,  365. 


COLUMBIAN  EXPOSITION. 

Judicial  Notice  of,  see  Evidence,  13. 
Liability  of  Board  of  Managers  to  Suit,  see 

State  Institutions,  10. 
Use  of  Public  Funds  for,  see  Counties,  70; 

Public  Moneys,  18-20. 


COMBINATIONS. 


Patent  on,  see  Patents,  I.  b. 
In  General,  see  Conspiracy. 


COMITY. 

International,  see  Courts,  539;  Extradition, 

2. 
Recognition  of  Decree  of  Other  State,  see 

Judgment,  IV.  b. 
See  also  Conflict  of  Laws;  Courts. 


COMMENCEMENT. 


Of  Action,  see  Limitation  of  Actions,  222, 
234-236. 


COMMENTATOR. 
Editorial  Notes. 


Com/mon-law  rights   of  commentator  upon 
literary  work.    51 :  358. 


COMMERCE. 


I. 
IL 


State  and  Federal  Power  Generally. 
Regulating    Carriers    and    Transporta- 
tion. 

a.  In  General. 

b.  Vessels. 

c.  Railroad  Companies. 

in.  Limiting  Exports  from  State. 
IV.  Sales  of  Goods;    License  Laws. 

a.  In  General. 

b.  In  Original  Packages. 

c.  Sales    by    Peddlers    and    Agents; 

by  Sample. 
V.  Editorial  Notes. 

Conspiracy  in  Restraint  of,  see  Conspiracy, 

n. 


484 


COMMERCE,  I. 


Federal  Jurisdiction  of  Action  Affecting,  see 
Courts,  331,  332,  334. 

Exclusiveness  of  Jurisdiction  as  to,  see 
Courts,   434-437. 

Burden  of  Proof  as  to,  see  Evidence,  749. 

Injunction  against  Interference  with,  see 
Injunction,  322. 

As  to  Powers  of  Interstate  Commerce  Com- 
mission, see  Interstate  Commerce  Com- 
mission. 

Tax  as  Affecting,  see  Taxes,  I.  e,  4;  VI.  §§ 
9,  14;  and  also  infra,  V.  §  6. 


I.  State  and  Federal  Power  Generally 
For  Editorial  Notes,  see  infra,  V.  §§  1-4. 

1.  The  nonexercise  by  Congress  of  its 
power  to  regulate  commerce  among  the 
states  is  equivalent  to  a  declaration  that 
such  commerce  shall  be  free  from  any  re- 
strictions. State  V.  Duckworth,  5  Idaho, 
642,  51  Pac.  456,  39:  365 

2.  The  purpose  of  an  act  of  Congress  re- 
lating to  commerce  being  legitimate  and 
warranted  by  the  Constitution,  it  is  wholly 
immaterial  to  the  consideration  of  the  va- 
lidity of  its  action  that  somewhere  it  has  a 
casual  or  contingent  effect  upon  the  domain 
of  state  legislation.  Lawton  v.  Comer,  40 
Fed.  480,  ^  7:55 

3.  Commerce  between  an  Indian  reserva- 
tion and  other  places  in  the  same  state  does 
not  constitute  interstate  commerce.  Sel- 
kirk V.  Stevens,  72  Minn.  335,  75  N.  W.  386, 

40:  759 

4.  Freedom  of  commerce  between  the 
states  is  not  interfered  with  by  Ky.  Stat.  § 
4228,  requiring  every  building  and  loan  as- 
sociation to  pay  into  the  treasury  annually 
2  per  cent  of  its  annual  gross  receipts. 
Southern  Bldg.  &  L.  Asso.  v.  Norman,  98  Kv. 
294,  32  S.  W.  952,  31 :  41 
Navigable  waters. 

See  also  Waters,  159,  160. 

For  Editorial  Xotes,  see  infra,  V.  §  2. 

4a.  The  provision  in  the  act  of  Congress 
of  March  3,  1899,  forbidding  obstructions  in 
navigable  rivers  which  are  not  authorized 
by  Congress,  does  not  apply  to  an  obstruc- 
tion placed  in  the  bed  of  a  river  for  the  pur- 
pose of  repairing  a  bridge  which  had  been 
placed  across  the  river  under  state  authority 
prior  to  the  passage  of  that  act.  Kansas 
City,  M.  &  B.  R.  Co.  v.  J.  T.  Wivgul  &  Son, 
82  Miss.  223,  33  So.  965,  '         61 :  578 

4b.  A  state  may,  in  the  absence  of  con- 
gressional legislation,  authorize  an  obstruc- 
tion in  the  bed  of  a  navigable  river  of  tho 
United  States,  where  it  is  entirely  within 
its  limits,  which  is  necessary  to  repair  a 
bridge  which  has  been  placed  across  the 
stream  under  its  authority,  although  the 
stream  extends  into  another  state.  Id. 

5.  The  improvement,  under  state  author 
ity,  of  a  river  constituting  a  navigable  wa 
ter  of  the  United  States,  but  lying  entirely 
within  a  state,  is  not  an  improper  inter- 
ference with  interstate  or  foreign  commerce, 
so  long  as  the  free  navigation  of  the  river 
is  not  impaired,  or  any  system  provided  for 


its  improvement  by  the  United  States  is 
not  interfered  with.  Stockton  v.  Powell,  29 
Fla.  1,  10  So.  688,  15:  42 

6.  The  power  to  regulate  commerce  among 
the  several  states  comprehends  the  power  to 
regulate  the  navigable  waters  of  the  United 
States  on  which  such  commerce  may  be  or 
is  carried;  and  to  this  end  Congress  may 
make  any  regulation  concerning  such  navi- 
gation, including  the  vessels  engaged  there- 
in, as  may  be  necessary  and  proper  to  se- 
cure and  maintain  the  safety  and  conven- 
ience of  the  waterway;  which  regulations 
are  as  applicable  to  vessels  engaged  only  in 
intrastate  commerce  thereon  as  to  those 
engaged  in  interstate  commerce.  The  City 
of  Salem,  13  Sawy.  607,  37  Fed.  846,  2:  380 

6a.  A  state  legislature  may  authorize  the 
building  of  a  bridge  or  other  structure  tend- 
ing to  obstruct  the  navigation  of  a  naviga- 
ble river  which  is  altogether  within  its  own 
boundary;  and  it  is  only  when  Congress, 
by  virtue  of  the  constitutional  provision, 
acts  as  to  such  obstructions,  that  its  will 
must  be  obeyed  so  far  as  may  be  necessary 
to  insure  free  navigation.  Green  &  B.  R. 
Nav.  Co.  V.  Chesapeake,  0.  &  S.  W.  R.  Co. 
88  Ky.  1,  10  S.  W.  6,  2:  540 

6b.  A  bridge  across  navigable  water  will 
continue  to  be  lawful  until  the  Secretary  of 
War  orders  its  modification,  under  an  act 
of  Congress  declaring  it  to  be  so,  with  the 
proviso  "that  such  modifications  are  made 
in  their  present  position,  condition,  and 
elevation  as  the  Secretary  of  War  may  or- 
der in  the  interests  of  navigation."  Frost 
V.  Washington  County  R.  Co.  96  Me.  76,  51 
Atl.  806,  59:  168 

6c.  The  power  of  a  state  to  require  fish 
ways  in  dams  across  streams  extends  to  a 
navigable  stream  ttiat  flows  beyond  the 
bounds  of  the  state,  so  long  as  inter- 
communication between  the  states  is  not 
therebv  affected.  State  ex  rel.  Remley  v. 
Meek,  "112  Iowa,  338,  84  N.  W.  3,  51:  414 
Insurance  business. 

7.  The  business  of  insurance  as  ordinarily 
conducted  by  insurance  companies  organ- 
ized under  the  legislation  of  other  states 
is  not  interstate  commerce  so  as  to  be  ex- 
empt from  state  legislation  as  to  combina- 
tion bv  insurance  companies  to  control  rates. 
State  V.  Phipps,  50  Kan.  609,  31  Pac.  1097, 

18:  657 
Betting  on  race  in  other  state. 

8.  A  statute  making  it  unlawful  to  make 
or  record  a  bet  upon  any  race  of  animals  in 
another  state  is  a  proper  exercise  of  the  po- 
lice power  of  the  state,  and  not  an  unlaw- 
ful interference  with  interstate  commerce. 
Ex  parte  Lacv,  93    Va.  159,    24  S.  E.    930, 

31 :  822 

9.  The  prohibition  of  wagers  or  the  sale 
of  pools  or  tickets  or  other  chances  on  any 
horse  race,  prize  fight,  or  other  contest  out- 
side the  state,  does  not  render  Ala.  act  Feb- 
ruary 26,  1889,  an  unconstitutional  interfer- 
ence with  interstate  commerce.  State  v. 
Stripling,  113  Ala.  120,  21  So.  409,        36:  81 

10.  A  state  statute  making  it  unlawful  to 
keep  a  place  in  which  the  business  of  trans- 
mitting money  to  be  placed  or  bet  on  any 


COMMERCE,  II.  a. 


486 


horse  race,  etc.,  whether  within  or  without 
the  state,  is  permitted  or  carried  on,  or  to 
be  concerned  in  such  business,  is  not  an  un- 
constitutional regulation  of  interstate  com- 
merce as  applied  to  an  agent  of  a  telegraph 
company,  who  keeps  such  place  or  is  en- 
gaged in  such  business,  and  transmits  the 
money  to  another  state  by  telegraph. 
State  V.  Harbourne,  70  Conn.  484.  40  Atl. 
179,  40:  607 

Quarantine  or  inspection  laws, 

11.  A  quarantine  law  enacted,  in  the  ex- 
ercise of  the  police  power  of  the  state,  for 
the  protection  and  preservation  of  the  pub- 
lie  health,  is  not  an  unconstitutional  regula- 
tion of  commerce.  Compagnie  Francaise  v. 
State  Board  of  Health,  51  La.  Ann.  645,  25 
So.  501,  56:  795 

12.  The  Idaho  law  establishing  quarantine 
against  diseased  sheep,  passed  March  13, 
1899,  which  prohibits  the  introduction  into 
the  state  of  sheep  from  a  knpwn  infected 
district,  except  upon  complian(?e  with  the 
laws  of  the  state  regarding  the  inspection 
and  dipping  of  sheep,  is  not  void  as  an  in- 
terference with  interstate  commerce,  or  as 
an  abridgment  of  the  rights  of  citizens  of 
other  states.  State  v.  Rasmussen,  7  Idaho. 
1,  59  Pac.  933,  52:  78 

13.  Restrictions  on  bringing  sheep  into  the 
state  by  Id.  Sess.  Laws  1895,  p.  125,  and 
Id.  Sess.  Laws  1897,  p.  115.  appointing  a 
sheep  inspector,  and  making  it  unlawful  to 
bring  sheep  into  the  state  without  his  in- 
spection and  having  the  sheep  dipped  as 
provided  in  the  statute, — constitute  an  un- 
necessary and  unconstitutional  burden  upon 
interstate  commerce.  State  v.  Duckworth, 
5  Idaho,  642,  51  Pac.  456,  39:  365 
Inducing  seamen  to  desert, 

14.  A  penal  statute  against  aiding  or  in- 
ducing an  articled  seaman  or  apprentice  to 
desert  from  or  leave  a  foreign  vessel  while 
in  the  waters  of  the  state,  such  as  Ga.  Pen. 
Code,  §  655,  is  not  an  unconstitutional  regu- 
lation or  interference  with  commerce,  in  the 
absence  of  any  legislation  of  Congress  on 
the  subject,  but  is  an  aid  to  commerce  and 
is  within  the  right  and  power  of  the  state. 
Handel  v.  Chaplin,  111  Ga.  800,  36  S.  E. 
979,  51 :  720 

15.  A  state  statute  making  it  an  offense 
to  solicit  a  seaman  to  desert  from  any  ves- 
sel within  the  jurisdiction  of  the  state  is 
not  in  violation  of  U.  S.  Const,  art.  1,  §  8, 
subd.  3,  as  a  regulation  of  foreign  or  in- 
terstate commerce,  in  the  absence  of  any 
act  of  Congress  repugnant  thereto.  Re 
Young,  36  Or.  247,  59  Pac.  707,       48:  153 


n.  Regulating  Carriers  and  Transportation. 
a.  In  General. 

Combination  Interfering  with,  see  Conspir- 
acy, 160-166. 

Power  of  Interstate  Commerce  Commission 
as  to,  see  Interstate  Commerce  Com- 
mission, 2-5. 

Construction  of  Statute  as  to,  see  Statutes, 
498. 


See  also  Common  Law,  5, 

For  Editorial  Notes,  see  infra,  V.  §  2. 

Of  oil  or  gas. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

16.  Natural  gas  is  as  much  an  article  of 
commerce  as  any  other  product  of  the  earth. 
State  ex  rel.  Corwin  v.  Indiana  &  O.  0.  G. 
&    Min.  Co.    120  Ind.    575,  22  N.  E.    778, 

6:579 

17.  State  regulation  of  the  pressure  of 
natural  gas  transported  in  pipes  within  the 
state  which  operates  upon  all  alike,  is  not 
an  unlawful  regulation  of  interstate  com- 
merce. Jamieson  v.  Indiana  Natural  Gas  & 
O.  Co.  128  Ind.  555,  28  N.  E.  76,  12:  652 

18.  Limiting  the  right  of  eminent  domain 
in  case  of  oil  and  gas  companies  to  those  en- 
gaged in  supplying  customers  within  the 
state  is  not  an  interference  with  interstate 
commerce.  Consumers  Gas  Trust  Co.  v. 
Harlesa,  131  Ind.  446,  29  N.  E.  1062,  15:  505 

19.  Ind.  act  March  9,  1889,  providing  that 
it  shall  be  unlawful  for  any  person,  natural 
or  artificial,  to  conduct  natural  gas  out  of 
the  state,  violates  the  provision  of  the  Fed- 
eral Constitution  against  the  regulation  by 
states  of  interstate  commerce.  State  ex 
rel.  Corwin  v.  Indiana  &  O.  O.  G.  &  Min.  Co. 
120  Ind.  575,  22  N.  E.  778,  6:  579 

20.  The  prohibition  of  the  transportation 
of  natural  gas  out  of  the  state,  by  Ind. 
act  ^March  9,  1889,  is  unconstitutional  be- 
cause natural  gas,  when  reduced  to  posses- 
sion, is  a  commercial  commodity,  so  that 
its  transportation  out  of  the  state  is  a  mat- 
ter of  interstate  commerce.  Manufacturers* 
Gas  &'  O.  Co.  V.  Indiana  Natural  Gas  &  O. 
Co.  155  Ind.  545,  58  N.  E.  706,  53:  134 
Telegraph  business. 

For  Editorial  Notes,  see  infra,  V.  §§  3,  5. 

21.  Telegraph  messages  between  points  in 
the  same  state  do  not  constitute  interstate 
commerce  because  of  the  fact  that  they 
traverse  another  state  on  the  route.  State 
ex  rel.  Railroad  Commission  v.  Western  U. 
Teleg.    Co.    113   N.    C.   213,    18   S.    E.    389, 

22:  570 

22.  A  telegraph  company  which  has  a  con- 
tinuous line  between  points  in  the  same 
state  over  which  it  might  transmit  a  mes- 
sage received  for  that  purpose,  but  which 
passes  through  another  state  on  the  route, 
cannot  claim  that  the  message  is  interstate 
commerce  and  therefore  exempt  from  state 
authority  limiting  the  charge  for  trans- 
mission, although  the  company  does  not  in 
fact  transmit  the  message  the  whole 
distance,  but  delivers  it  at  an  intermediate 
point  in  another  state  to  another  company 
because  its  own  line  for  the  remainder  of 
the  distance  is  fully  occupied  by  other  busi- 
ness. Leavell  v.  Western  U.  Teleg.  Co.  116 
N.  C.  211,  21  S.  E.  391,  27:  843 

23.  The  provision  of  the  United  States 
Constitution,  conferring  upon  Congress  the 
power  to  regulate  commerce  among  the  sev- 
eral states,  does  not  prohibit  the  legislature 
of  a  state  from  enacting  a  law  subjecting 
telcTraph  companies  to  penalties  for  acts  of 
negli>zpnce  occurring  entirely  within  the  lim- 
its of  the  state,  although  such  acts  are  com- 
mitted in  dealing  with  messages  to  be  trans- 


486 


COMMERCE,  II.  b,  c. 


mitted  to  points  in  other  states.  Western 
U.  Teleg.  Co.  v.  Howell,  95  Ga.  194,  22  S.  E. 
286,  30:  158 

Street  railroad  companies. 

23a.  A  discrimination  in  rates  in  favor  of 
the  residents  of  the  city,  made  by  an  ordi- 
nance as  one  of  the  considerations  for  ex- 
tending the  franchise  of  a  street  railway  en- 
gaged in  interstate  commerce,  renders  the 
ordinance  invalid  as  in  violation  of  the 
interstate  commerce  clause  of  the  Federal 
Constitution.  State  ex  rel.  Bump  v.  Omaha 
&  C.  B.  R.  &  B.  Co.  113  Iowa,  30,  84  N.  W. 
983,  52:  315 

b.  Vessels. 

Vested  Rights  in  Contract  for  Interstate 
Transportation,  see  Constitutional  Law, 
1157. 

See  also  supra,  6. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

Requiring  fire  screens. 

24.  A  state  statute  requiring  all  vessels 
using  wood  for  fuel  while  navigating  waters 
of  the  state,  to  be  provided  with  suitable 
fire  screens,  does  not  conflict  with  acts  of 
Congress  or  regulations  of  supervising  in- 
spectors, and  is  not  an  interference  with 
interstate  commerce.  Burrows  v.  Delta 
Transp.  Co.  106  Mich.  582,  64  N.  W.  501, 

29:  468 
License. 

25.  The  operation  of  towboats  on  naviga- 
ble waters  between  different  states  under  a 
Federal  license  cannot  be  subjected  to  a 
state  license  tax.  Frere  v.  Von  Schoeler,  47 
La.  Ann.  324,  16  So.  808,  27:  414 

26.  A  license  to  run  a  steamboat  on 
waters  of  a  river  which  can  be  used  only  for 
transportation  between  places  in  the  same 
state  may  be  required  by  a  state  law  mak- 
ing it  an  indictable  offense  to  run  such 
steamboat  without  a  license.  Com.  v.  King, 
150  ]\Iass.  221,  22  N.  E.  905,  5:  536 

26a.  A  city  ordinance  exacting  from  ves- 
sels having  a  coasting  license  under  U.  S. 
Rev.  Stat.  §  4321,  U.  S.  Comp.  Stat.  1901,  p. 
2963,  a  license  fee  for  the  privilege  of  tow- 
ing boats  or  other  water  craft  into  or  out 
of  the  harbor  or  from  one  place  to  another 
within  the  harbor,  although  this  fee  is  de- 
clared to  be  in  lieu  of  all  wharfage  provid- 
ed the  boat  or  barge  does  not  engage  in  any 
other  than  towing  or  transfer  business,  is 
in  violation  of  U.  S.  Const,  art.  1,  §  8,  giv- 
ing Congress  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several 
states,  and  art.  1,  §  10,  prohibiting  states 
from  laying  any  duties  of  tonnage  without 
the  consent  of  Congress.  St.  Louis  v.  Con- 
solidated Coal  Co.  158  Mo.  342,  59  S.  W.  103, 

51 :  850 
Limited  liability  legislation. 
See  also  Carriers,  869. 

26b.  The  act  of  Congress  of  June  19,  1886, 
extending  the  benefits  of  limited  liability 
legislation  to  vessels  engaged  in  inland 
navigation,  is  not  unconstitutional,  In  view 
of  the  power  of  Congress  to  regulate  com- 
merce.   Lawton  v.  Comer,  40  Fed.  480, 

7:  55 


26c.  Even  though  the  subjects  of  the  ex- 
tended limitation  of  liability,  or  the  terri- 
tory in  which  it  is  effective,  are  partially 
within  the  region  of  state  control,  yet  where 
the  sul^jects  are  separable,  and  are  partly 
under  the  national  control,  the  act  of  Con- 
gress will  be  sustained  by  the  courts  wher- 
ever the  power  of  Congress  extends,  and  as 
to  all  those  objects  to  which  it  attaches; 
and  this  rule  is  easily  applicable  in  this 
case.  Id. 

Limitation  of  capacity. 

26d.  The  regulation  contained  in  U.  S. 
Rev.  Stat.  §  4465,  U.  S.  Comp.  Stat.  1901, 
p.  3046,  forbidding  a  steamboat  to  carry 
more  passengers  than  allowed  in  her  certifi- 
cate of  inspection,  applies  to  such  boats 
engaged  in  carrying  passengers  on  a  navi- 
gable water  of  the  United  States  between 
ports  of  the  same  state  only.  The  City  of 
Salem,  37  Fed.  846,  38  Fed.  762, 

2:  380,  4:  125 

c.  Railroad  Companies. 

As  to  Governmental  Regulation  of  Carriers 
in  Matters  not  Affecting  Interstate 
Commerce,  see  Carriers,  III. 

Provision  as  to  Carrier's  Liability  as  Regu- 
lation, see  Carriers,  1005. 

What  Law  Governs  Contract  of  Interstate 
Transportation,  see  Conflict  of  Laws,  I. 
b,  4. 

State  Jurisdiction  of  Action  in  Case  of 
Violation,  see  Courts,  434,  435. 

Right  to  Take  Game  During  Interstate 
Transportation,  see  Game  Laws,  2. 

See  also  Carriers,  1017,  1018. 

For  Editorial  Notes,  see  infra,  TV.  §§  2,  4. 

27.  Where  a  railroad  company,  incorporat- 
ed under  the  laws  of  Ohio,  misuses  a  fran- 
chise, privilege,  or  right  conferred  upon  it, 
or  claims  the  right  to  exercise,  or  has  exer- 
cised, "a  franchise,  privilege,  or  right  in 
contravention  of  law,"  the  supreme  court 
has  jurisdiction  to  inquire  into  and  correct 
the  mischief,  though  the  corporation  may 
be  engaged  in  interstate  commerce,  and  the 
misuser  or  usurpation  to  be  corrected  re- 
lates to  and  concerns  that  traffic.  State  ex 
rel.  Kohler  v.  Cincinnati,  W.  &  B.  R.  Co.  47 
Ohio  St.  130,  23  N.  W.  928,  7:  319 

28.  When  a  carrier  ceases  to  be  a  carrier 
and  becomes  a  warehouseman,  he  cannot  be 
protected  as  a  carrier  by  the  constitutional 
provisions  as  to  regulations  of  commerce. 
State  V.  Creeden,  78  Iowa,  556,  43  N.  W. 
673,  7:  295 

29.  Compelling  a  foreign  railroad  corpora- 
tion, operating  a  portion  of  its  road  within 
the  state  to  become  domesticated  is  not  an 
unlawful  interference  with  interstate  com- 
merce. Com.  V.  Mobile  &  O.  R.  Co.  23  Ky. 
L.  Rep.  784,  64  S.  W.  451,  54:  916 

30.  When  an  agent  of  a  railroad  is  prose- 
cuted under  the  Interstate  Commerce  Act,  it 
is  not  necessary  either  to  allege  or  prove 
that  the  particular  unlawful  act  complained 
of  was  done  under  authority  conferred  by 
its  principal  or  by  its  direction;  it  is  suf- 
ficient to  show  that  the  accused  was  in  fact 


COMMERCE,  II.  c. 


487 


an  agent  of  a  railroad  subject  to  the  act, 
and  that  the  wrong  was  committed  under 
color  of  his  office  or  agency.  United  States 
V.  Tozor,  .37  Fed.  6.35,  2:  444 

31.  Railroad  companies  engaged  in  inter- 
state commerce  are  subject  to  a  state 
statute  making  railroad  companies  liable  for 
injuries  to  employees  on  account  of  the 
negligence  of  others  having  control  or  direc- 
tion of  them,  so  long  as  Congress  does  not 
deal  with  that  subject.  Peirce  v ,  Van 
Dusen,  24  C.  C.  A.  280,  47  U.  S.  App.  339, 
78  Fed.  693,  _  69:  705 

32.  Unjust  discrimination  against  ship- 
pers engaged  in  interstate  commerce,  as  to 
the  matter  of  issuing  through  bills  of  lading 
or  furnishing  reshipping  facilities  at  termi- 
nal points  within  the  state  of  Georgia,  d^es 
not  constitute  a  violation  of  rule  36  of  the 
Georgia  railroad  commission  that  carriers 
in  their  intrastate  business  shrill  afford  to 
all  persons  equal  facilities  in  'the  trans- 
portation and  delivery  of  freight.  Central 
of  Ga.  R.  Co.  V.  Augusta  Brokerage  Co, 
122  Ga.  646,  50  S.  E.  473,  69:  119 
When  transportation  is  interstate. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

33.  Only  transportation  within  the  state 
or  that  which  is  not  a  part  of  any  con- 
tinuous transportation  without  the  state, 
is  within  the  provisions  of  111.  act  May  2, 
1873,  §§  1,  7,  8,  11;  and  these  do  not,  there- 
fore, affect  interstate  commerce.  Chicago, 
B.  &  Q.  R.  Co.  V.  Jones,  149  111.  361,  37  N. 
E.  247,  24:  141 

34.  Shipments  between  points  within  the 
same  state  do  not  constitute  interstate  com- 
merce because  made  on  a  railroad  which 
runs  for  part  of  the  trip  in  another  state. 
Campbell  v.  Chicago,  M.  &  St.  P.  R.  Co.  86 
Iowa,  587,  53  N.  W.  351,  17:  443 

35.  A  shipment  from  one  point  to  another 
within  the  same  state  is  interstate  com- 
merce, although  a  bill  of  lading  is  given  and 
charges  are  collected  to  the  latter  point  only 
where  the  destination  of  the  property  is  in 
a  foreign  state,  to  which  a  continuous 
voyage  is  contemplated,  with  only  a  stop 
to  change  carriers  at  the  terminal  point 
mentioned  in  the  bill  of  lading.  Houston 
Direct  Nav.  Co.  v.  Insurance  Co.  of  N.  A. 
89  Tex.  1,  32  S.  W.  889,  30:  713 

36.  Where  transportation  of  goods  des- 
tined for  a  point  without  the  state  has 
been  actually  begun,  temporary  stoppage 
within  the  state,  without  the  intention  of 
abandoning  the  original  movement  (which 
movement  is  ultimately  completed),  will  not 
deprive  the  transportation  of  the  character 
of  interstate  commerce.  Delaware  &  H. 
Canal  Co.  v.  Com.  1  Monaghan  (Pa.)  36 
(Not  to  be  Rep.),  17  Atl.  175,  1:  232 

37.  The  interstate  character  of  the  trans- 
portation of  a  car  load  of  material  by  rail 
from  one  state  to  another  is  not  terminated 
when  the  car  reaches  the  town  of  its  desti- 
nation, if  it  has  not  been  placed  where  it  is 
to  be  unloaded.  Chicago,  M.  &  St.  P.  R.  Co. 
T.  Voelker,  65  C.  C.  A.  226,  129  Fed.  522, 

70:264 


Of  passengers  generally. 
Discrimination  against  Colored  Persons,  see 
Civil  Rights,  11,  12. 

38.  Transportation  of  persons  is  as  much 
commerce  as  transportation  of  property. 
Louisville,  N.  0.  &  T.  R.  Co.  v.  State,  66 
Miss.  662,  6  So.  203,  5:  132 

39.  A  state  statute  requiring  a  carrier 
who  brings  into  the  state  a  person  not  hav- 
ing a  settlement  therein,  to  remove  him 
from  the  state,  upon  request  of  the  proper 
officers,  if  he  falls  into  distress  within  a 
year,  or  to  be  liable  for  his  support,  is  an 
unconstitutional  regulation  of  commerce. 
Bangor  v.  Smith,  83  Me.  422,  22  Atl.  379, 

13:  686 
As  to  tickets. 
See  also  infra,  53-61. 

40.  The  regulation  of  the  sale  of  tickets 
on  railroads  and  steamboats,  which  makes 
such  sale  unlawful  without  a  certificate  of 
authority  from  the  carrier,  is  not  a  regula- 
tion of  commerce  beyond  the  power  of  a 
state  legislature,  but  is  a  mere  police  regu- 
lation of  a  public  employment.  Burdick  v. 
People,  149  111.  600,  36  N.  E.  948,  24:  152 
State  V.  Corbett,  57  Minn.  345,  59  N.  W. 
317,  _  24:  498 

41.  A  state  statute  making  railroad 
tickets  good  for  six  years,  and  giving  the 
holder  of  one  the  right  to  stop  off  at  as 
many  stopping  places  as  he  pleases  before 
reaching  his  destination,  cannot,  in  view  of 
the  power  of  Congress  over  commerce,  be  ap- 
plied, contrary  to  their  terms,  to  tickets 
sold  beyond  the  limits  of  the  state,  and  en- 
titling their  holders  to  passage  from  a 
point  in  a  foreign  state  or  country  to  one 
in  the  state  which  enacted  the  statute. 
Lafarier  v.  Grand  Trunk  R.  Co.  84  Me.  286, 
24  Atl.  848,  17:  111 

42.  A  state  statute  requiring  the  issuance 
of  mileage  books  at  reduced  rates  for  trans- 
portation wholly  within  the  state  is  not 
invalid  as  an  attempt  to  regulate  interstate 
commerce,  although  a  railroad  affected 
thereby  ejctends  into  other  states.  Purdy 
V.  Erie  R.  Co.  162  N.  Y.  42,  56  N.  E.  508, 

48:  669 

43.  A  contract  between  a  railroad  com- 
pany and  a  ticket  broker,  whereby  the 
latter  is  enabled  to  sell  tickets  to  indi- 
viduals over  the  company's  lines  for  inter- 
state transportation  at  less  than  the  estab- 
lished rate  for  the  sale  of  tickets  by  its 
regular  agents,  between  the  same  points  and 
for  the  same  accommodation,  is  in  violation 
of  the  act  of  Congress  of  Feb.  4,  1887,  to 
regulate  commerce.  Raleigh  &  G.  R.  Oo.  v. 
Swanson,  102  Ga.  754,  28  S.  E.  601,  39:  275 
Of  freight  generally. 

Subsequent  Illegality  of  Contracts  Existing 
When  Interstate  Commerce  Act  Took 
Effect,  see  Carriers,  1135. 

For  Editorial  Notes,  see  infra,  V.  §  2. 

44.  The  prohibition  of  the  transportation 
of  Texas,  Mexican,  Cherokee,  and  Indian 
cattle  through  a  state  by  railroads  and 
steamboats,  is  an  unconstitutional  regu- 
lation of  commerce.  Grimes  v.  Eddv,  126 
Mo.  168,  28  S.  W.  756,  26:  638 

45.  A    provision    in    a    carrier's    charter, 


488 


COMMERCE,  II.  c. 


that  it  shall  be  subject  in  the  transportation 
of  freight  to  the  laws  applicable  to  common 
carriers,  does  not  make  it  subject  to  state 
control  when  engaged  in  interstate  com- 
merce. Houston  Direct  Nav.  Co.  v.  Insur- 
ance Co.  of  N.  A.  89  Tex.  1,  32  S.  W.  889, 

30:  713 

46.  A  state  statute  compelling  the  ship- 
ment of  freight  within  a  certain  time  after 
delivery,  under  a  penalty  for  default,  is  not 
an  unconstitutional  regulation  of  interstate 
commerce  as  to  freight  for  shipment  out  of 
the  state,  as  it  does  not  tend  to  trammel  or 
obstruct,  but  to  expedite,  such  commerce. 
Bagg  V.  Wilmington,  C.  &  A.  R.  Co.  109  N. 
C.  279,  14  S.  E.  79,  14:  596 

47.  A  state  statute  making  a  carrier 
which  accept?  anything  for  transportation 
to  a  point  beyond  its  own  route  liable  for 
its  safe  carriage  to  such  point  of  desti- 
nation, in  the  absence  of  a  written  con- 
tract to  the  contrary,  and  imposing  upon 
the  carrier  the  burden  of  proving  even  in 
case  of  such  contract,  that  the  loss  or  in- 
jury did  not  occur  while  the  thing  was  In 
its  charge,  is  not  an  unconstitutional  inter- 
ference with  interstate  commerce.  Rich- 
mond &  A.  R.  Co.  V.  R.  A.  Patterson  To- 
bacco Co.  92  Va.  670,  24  S.  E.  261,    41:  511 

48.  The  interstate  commerce  clause  of  the 
Federal  Constitution  is  not  violated  by  Kan. 
Laws  1893,  chap.  100,  requiring  railroad 
companies  to  provide  track  scales  for  weigh- 
ing car-load  lots  of  hay,  grain,  etc.,  and  to 
issue  duplicate  bills  of  lading  for  ^  ship- 
ment, and  making  the  company  responsible 
for  the  full  amount  of  such  shipment,  less 
14  of  1  per  cent  of  its  weight,  since  the 
statute  is  an  exercise  of  the  police  power, 
and  does  not  impose  restrictions  of  any 
kind  on  commerce  between  the  states.  Mis- 
souri, K.  &  T.  R.  Co.  V.  Simonson,  64  Kan. 
802,  68  Pac.  653,  57:  765 

49.  A  state  statute  providing  a  penalty 
for  the  refusal  of  a  railroad  company  to  de- 
liver freight  on  payment  or  tender  of  the 
charges  due  as  shown  by  the  bill  of  lading 
is  not  invalid  as  a  regiilation  of  commerce. 
Dwyer  v.  Gulf.  C.  &  S.  F.  R.  Co.  75  Tex. 
572,  12  S.  W.  1001,  7:478 

49a.  A  railroad  company  is  not  prevented 
from  making  an  exclusive  contract  for  the 
care  of  live  stock  shipped  over  its  road  with 
one  stock  yard  by  §  3  of  the  Interstate  Com- 
merce Act,  which  makes  it  unlawful  for  a 
carrier  to  give  unreasonable  preference  to 
any  person  or  corporation.  Central  Stock 
Yards  Co.  v.  Louisville  &  N.  R.  Co.  55  C.  C. 
A.  63,  118  Fed.  113,  63:  213 

Interchange  of  business. 
Regulation   of   Other   Matters   Than   Inter- 
state Commerce,  see  Carriers,  III.  b. 
See  also  Carriers,  1028. 

50.  A  bridge  company  which  is  not  a  com- 
mon carrier  of  interstate  traffic  cannot, 
under  the  Act  to  Regulate  Commerce,  com- 
pel railway  companies  to  do  business  with 
or  through  it.  Kentuckv  &  I.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.  37  Fed.  5G7.      2:  28n 

51.  A  state  cannot  require  the  delivery  of 
interstate  freight  by  one  carrier  to  another 
within  Its  borders  in  order  that  the  freight 


may  reach  a  particular  depot  within  a 
certain  municipality.  Central  Stock  Yards 
Co.  V.  Louisville  &  N.  R.  Co.  55  C.  C.  A.  63, 
118  Fed.  113,  63:  213 

52.  The  provisions  of  the  Interstate  Com- 
merce Law  requiring  connecting  railroads 
to  receive  and  deliver  passengers  and 
freight  from  other  roads,  and  afford  equal 
facilities  for  the  interchange  of  traffic,  ap- 
ply with  equal  force  to  their  officers  and 
employees.  Toledo,  A.  A.  &  N.  M.  R.  Co.  v. 
Pennsylvania  Co.  54  Fed.  746,  19:  395 

52a.  Neither  at  cgmmon  law  nor  under 
the  act  of  Congress  of  June  15,  1866  (U.  S. 
Rev.  Stat.  §  5258,  U.  S.  Comp.  Stat.  1901, 
p.  3565),  or  the  Interstate  Commerce  Act  of 
February  4,  1887,  can  a  common  carrier  be 
compelled  to  make  through  traffic  arrange- 
ments with  connecting  lines.  Kentucky  & 
I.  Bridge  Co.  v.  Louisville  &  N,  R.  Co.  37 
Fed.  567,  2:289 

52b.  No  authority  to  issue  through 
tickets  or  through  bills  of  lading  for  prop- 
erty, at  through  rates,  over  connecting  lines, 
is  conferred  by  the  Act  to  Regulate  Com- 
merce upon  common  carriers  of  interstate 
commerce,  in  the  absence  of  arrangements 
between  the  companies.  Id. 

52c.  The  Interstate  Commerce  Law  does 
not  require  a  common  carrier  subject  to  its 
provisions  to  establish  through  routes  and 
through  rates  with  all  connecting  lines, 
merely  because  it  may  have  done  so  with 
one  of  them.  Id. 

52d.  The  requirement  of  the  Act  to  Regu- 
late Commerce,  that  every  common  carrier 
shall  afford  reasonable,  proper,  and  equal 
facilities  to  connecting  lines,  imposes  upon 
a  carrier  no  duty  either  to  form  new  con- 
nections, or  to  establish  new  stations,  yards, 
or  depots,  or  to  pay  any  part  of  the  expense 
of  providing  such  nerw  facilities,  either  for 
the  convenience  of  the  public  or  of  other 
carriers;  and  a  carrier  cannot  be  compelled 
to  receive  or  deliver  traffic  at  a  point  where 
another  company  has  made  a  new  con- 
nection with  its  roads,  but  has  not  provided 
proper  facilities.  Id. 

Charges  of  carriers. 
See  also  supra,  42,  43. 

53.  A  mistake  in  a  bill  of  lading,  by  stat- 
ing interstate  rates  less  than  those  sched- 
uled in  accordance  with  the  act  of  Congress, 
does  not  preclude  the  carrier  from  recover- 
ing the  full  schedule  rate  as  a  condition  of 
delivering  the  goods.  Southern  R.  Co.  v. 
Harrison,  119  Ala.  539,  24  So.  552,     43:  385 

54.  A  contract  with  a  carrier  for  rates 
less  than  those  on  its  schedule,  and  which 
is  therefore  unlawful  as  to  the  carrier  be- 
cause in  violation  of  the  Interstate  Com- 
merce Law,  may  nevertheless  be  enforced 
by  the  shipper  if  he  had  no  knowledge  that 
the  schedule  rate  was  higher  than  that 
given  him.  Mobile  &  0.  R.  Co.  v.  Dismukes, 
94  Ala.  131,  10  So.  289,  17:  113 

55.  The  Railroad  and  Warehouse  Com- 
mission of  Minnesota  has  no  authority  to 
prescribe  rates  for  transportation  by  com- 
mon carriers  in  another  state.  It  cannot  fix 
the  rates  for  carriage  between  two  points 
within  Alinnesota,  over  a    route    extending 


COMMERCE.  II.  c. 


489 


across  a  neighboring  state.  Such  power  is 
vested  exclusively  in  Congress.  State  Rail- 
road &  W.  Commission  v.  Chicago,  St.  P.  M. 
&■  0.  R.  Co.  40  Minn.  267,  41  N.  W.  1047, 

3:  238 

56.  Interstate  commerce  is  not  subject  to 
common-law  regulations  as  to  descriminat- 
ing  charges  of  common  carriers,  in  the  ab- 
sence of  congressional  action.  Gatton  v. 
Chicago,  R.  1.  &  P.  R.  Co.  95  Iowa,  112,  63 
N.  W.  589,  28:  556 

57.  A  state  statute  regulating  the  rights 
of  carriers,  and  declaring  what  rates  shall 
be  regarded  as  extortionate,  does  not  apply 
to  the  case  of  interstate  shipments.  Mobile 
&  O.  R.  Co.  V.  Dismukes,  94  Ala.  131,  10  So. 
289,  17:  113 

58.  A  state  cannot  fix  the  rates  to  be 
charged  by  an  interstate  carrier  for  the  car- 
riage within  the  state  of  a  shipment  which 
is  delivered  to  the  carrier  at  a  point  in  an- 
other state.  Southern  Express  Co.  v.  Gold- 
berg, 101  Va.  619,  44  S.  E.  893,"  62:  669 

59.  The  South  Carolina  Railroad  Com- 
mission has  no  jurisdiction  of  a  complaint 
for  charges  unlawfully  made  by  a  railroad 
partly  in  North  Carolina,  for  transportation 
which  was  partly  in  the  latter  state,  al- 
though it  was  for  part  of  the  original  trans- 
portation by  connecting  lines  between  points 
both  in  South  Carolina,  sucb  transportation 
being  interstate  commerce.  Sternberger  v. 
Cape  Fear  &  Y.  V.  R.  Co.  29  S.  C.  510,  7 
S.  E.  836,  t  2:  105 

60.  No  state  has  any  right  to  forfeit  the 
franchises  of  a  railroad  company  for  making 
unlawful  charges  upon  traffic  which  is  with- 
in the  provisions  of  the  Interstate  Com- 
merce Law,  State  ex  rel.  Crow  v.  Atchison, 
T.  &  S.  F.  R.  Co.  176  Mo.  687,  75  S.  W.  776, 

63:  761 
60a.  Requiring  prepayment  of  freight 
charges  by  a  connecting  carrier,  without  re- 
quiring it  of  other  shippers  or  carriers  at 
the  same  place,  does  not  constitute  an  un- 
reasonable or  undue  disadvantage  within 
the  meaning  of  the  Interstate  Commerce 
Act.  Little  Rock  &  M.  R.  Co.  v.  St.  Louis  & 
S.  W.  R.  Co.  27  U.  S.  App.  280,  11  C.  C.  A. 
417,  63  Fed.  775,  26:  192 

61.  The  state  of  Texas  has  the  right  to 
prohibit  and  interfere  with  a  contract  in 
restraint  of  competition,  some  of  the  parties 
to  which  are  corporations  created  by  the 
state,  although  it  regulates  charges  upon 
freight  carried  to  and  fro  between  Texas 
and  other  states.  The  agreement,  being 
illegal  as  to  some,  is  illegal  as  to  all.  Gulf, 
C.  &  S.  F.  R.  Co.  v.  State,  72  Tex.  404,  10 
S.  W.  81,  1 :  849 
Contracts  limiting  liability. 

See  also  Carriers,  869. 

62.  Prohibiting  common  carriers  from  con- 
tracting to  limit  their  common-law  liability 
does  not  interfere  with  the  power  of  Con- 
gress to  regulate  interstate  commerce.  Ohio 
&  M.  R.  Co.  V.  Taber,  98  Ky.  503,  32  S.  W. 
168,  36  S.  W.  18,  34:  685 

63.  Neither  the  common-law  rule  nor  a 
state  statute  denying  validity  to  a  contract 
exempting  a  common  carrier  from  liability 
can  be  regarded  as  a  regulation    of    com- 


merce, although  applied  to  an  interstate 
shipment.  Solan  v.  Chicago,  M.  &  St.  P. 
R.  Co.  95  Iowa,  260,  63  N.  W.  692,  28:  718 
[Alfirmed  by  the  Supreme  Court  of  the 
United  States  in  169  U,  S.  133,  42  L.  ed. 
688,  18  Sup.  Ct.  Rep.  289.] 

64.  A  provision  of  a  state  Constitution 
that  a  common  carrier  shall  not  be  permit- 
ted to  contract  for  relief  from  its  common- 
law  liability  is  not  in  conflict  with  the 
interstate  commerce  clause  of  the  Federal 
Constitution.  Western  U.  Teleg.  Co.  v. 
Eubank,  100  Ky.  591, 38  S.  W.  1068,     36:  711 

65.  The  fact  that  a  contract  was  for  the 
carrii^e  of  goods  from  one  state  to  another 
does  not  relieve  a  corporation  of  the  state  in 
which  the  contract  was  made  from  the  rule 
of  law  existing  in  that  state,  *hich  pro- 
hibits special  contracts  limiting  liability. 
St.  Joseph  &  G.  I.  R.  Co.  v.  Palmer,  38  Neb. 
463,  56  N.  W.  957,  22:  335 

66.  A  state  statute  prohibiting  a  carrier 
from  contracting  for  an  exemption  from 
the  negligence  of  a  connecting  carrier  when 
the  first  carrier  undertakes  to  transport 
property  to  a  point  beyond  its  own  route, 
is  not  an  unconstitutional  regulation  of 
commerce  among  the  states.  McCann  v. 
Eddy,  133  Mo.  59,  33  S.  W.  71,  35:  110 

67.  A  shipment  is  not  within  the  pro- 
visions of  a  statute  forbidding  carriers 
within  the  state  to  limit  their  common-law 
liability,  where  the  contract  provides  for 
the  carrying  of  the  goods  to  a  foreign  port 
by  means  of  the  carrier's  own  line,  its  con- 
necting lines  in  another  state,  and  an  ocean 
steamship  company.  Missouri  P.  R.  Co.  v. 
Sherwood,  84  Tex.   125,  19  S.  W.  455, 

17:643 

68.  The  refusal  of  a  state  court  to  en- 
force a  stipulation  in  a  carriage  contract 
made  in  another  state  fixing  a  value  on 
property  to  be  transported  into  the  state, 
after  its  negligent  injury  by  the  carrier 
within  the  state,  does  not  conflict  with  the 
Interstate  Commerce  Act  of  Congress. 
Hughes  V.  Pennsylvania  R.  Co.  202  Pa.  222, 
51  Atl.  990,  63:  513 
Cars;   running  of  trains. 

For  Editorial  Notes,  see  infra,  V.  §  2. 

69.  A  train  composed  of  empty  coal  cars, 
although  destined  for  a  point  in  another 
state  to  procure  a  load,  is  not  engaged  in 
transporting  articles  of  interstate  com- 
merce so  as  to  be  beyond  the  control  of 
state  laws.  Norfolk  &  W.  R.  Co.  v.  Com.  93 
Va.  749,  24  S.  E.  837,  34:  105 

70.  A  state  statute  compelling  railroad 
companies  to  furnish  double-decked  cars  for 
sheep,  under  a  penalty  for  failure  to  do  so. 
and  limiting  the  price  per  car  load,  is  void 
as  an  attempted  regulation  of  commerce, 
when  applied  to  interstate  shipments. 
Stanlev  v.  Wabash,  St.  L.  &  P.  R.  Co.  100 
Mo.  435,  13  S.  W.  709,  8:  549 

71.  A  law  requiring  all  regular  passenger 
trains  to  stop  at  county  seats  does  not 
constitute  a  regulation  of  interstate  com- 
merce, even  as  to  a  train  which  runs  to  an- 
other state  and  carries  United  States  mail. 
Illinois  C.  R.  Co.  v.  People,  143  HI.  434,  33 
N.  E.  173,  19:  119 


490 


CX)MMERCE.  m.,  IV.  a. 


72.  A  statute  compelling  railroad  com- 
panies to  stop  all  regular  passenger  trains 
at  county  seats  is  not  an  interference  with 
interstate  commerce.  State  v.  Gladson,  57 
Minn.  385,  59  X.  W.  487,  24:  502 
[Affirmed  by  the  Supreme  Court  of  the 
United  States  in  166  U.  S.  427,  41  L.  ed. 
1064,  17  Sup.  Ct.  Rep.  627.] 

73.  A  state  statute  prohibiting  freight 
trains  running  on  Sunday  between  sunrise 
and  sunset,  except  with  live  stock  or  perish- 
able freight,  or  to  complete  a  trip  which 
can  be  finished  before  9  A.  M.,  is  invalid  as 
a  regulation  of  commerce,  so  far  as  it  ap- 
plies to  interstate  freight  trains.  Norfolk 
&  W.  R.  Co.  V.  Com.  88  Va.  95,  13  S.  E. 
340,  13:  107 

74.  State  laws  prohibiting  the  running  of 
railway  trains  on  Sunday,  if  enacted  in 
good  faith  for  the  preservation  and  pro- 
tection, of  the  health  and  morals  of  the 
people,  and  without  discrimination  against 
interstate  or  foreign  commerce,  are  not  in 
eonllict  with  the  Constitution  of  the  United 
States.  Norfolk  &  W.  R.  Co.  v.  Com.  93 
Va.  740,  24  S.  E.  837,  34:  105 

75.  An  ordinance  limiting  the  speed  of 
trains  on  an  interstate  railway  which  carries 
United  States  mail  to  10  miles  an  hour  with- 
in the  corporate  limits  of  the  municipality, 
which  is  passed  for  the  safety  of  the  pub- 
lic and  the  protection  of  life  and  property, 
is  not  void  as  imposing  an  unreasonable  re- 
striction upon  interstate  commerce  and  the 
speedv  transportation  of  the  mail.  Chicago 
&  A.  R.  Co.  V.  Carlinville,  200  111.  314,  65 
N.  E.    730,  60:  391 

76.  A  state  statute  requiring  railroad 
companies  to  report,  at  each  station  at 
which  there  is  a  telegraph  office,  whether 
trains  are  on  time  or  not,  is  not  a  regu- 
lation of  interstate  commerce,  although  the 
information  to  be  noted  must  be  received 
from  an  agent  in  another  state,  through  the 
agency  of  a  telegraph  company  engaged  in 
interstate  commerce.  State  v.  Indiana  & 
I.  S.  R.  Co.  133  Ind.  60,  32  N.  E.  817, 

18:  502 

77.  Making  a  railroad  company  liable  for 
fires  set  by  its  engines  or  on  its  right  of 
way  is  not  a  reirulation  of  commerce  among 
the  states.  McCandless  v.  Richmond  &  D. 
R.  Co.  38  S.  C.  103,  16  S.  E.  429,         18:  440 


m.  Limiting  Exports  from  State. 

See  also  supra,  19,  20. 

78.  A  statute  prohibiting  the  exportation 
of  fish  from  a  territory  is  unconstitution- 
al as  a  regulation  of  commerce.  Territory 
V.  Evans,  2  Id.  658,  23  Pac.  115,  7:  288 

79.  A  statute  prohibiting  the  shipment 
out  of  the  state  of  oysters  taken  in  the 
waters  of  the  state,  while  they  are  in  shells, 
and  also  prohibiting  the  taking  of  such 
oysters  by  any  person  who  is  not  a  resident 
of  the  state,  is  not  unconstitutional  as  a 
regulation  of  interstate  commerce.  State  v. 
Harrub,  95  Ala.  176,  10  So.  752.         15:  761 


80.  A  Hcense  tax  on  all  those  engaged  in 
packing  or  canning  oysters  for  sale  or 
transportation,  whose  places  of  business  are 
in  the  state,  is  not  an  unconstitutional 
interference  with  interstate  commerce  as 
applied  to  those  who  may  sell  or  transport 
their  oysters  beyond  the  state.  State  v. 
Applegarth,  81  Md.  293,  31  Atl.  961,    28:  812 

81.  A  state  statute  prohibiting  game  birds 
to  be  killed  for  the  purpose  of  conveying 
them  out  of  the  state  is  not  an  unlawful 
interference  with  interstate  commerce. 
State  V.  Geer,  61  Conn.  144,  22  Atl.  1012, 

13:  804 


rv.  Sales  of  Goods;  License  Laws, 
a.  In  General. 

Licensing  of  Vessels,  see  supra,  25-26a. 

82.  An  ordinance  imposing  a  license  tax 
on  transient  persons  other  than  citizens  of 
the  municipality  for  selling  goods  is  un- 
constitutional and  void.  McGraw  v.  Marion, 
98  Ky.  673,  34  S.  W.  18,  47:  593 

83.  The  determination  of  what  Is  a 
legitimate  article  of  interstate  or  foreign, 
commerce  rests  primarily  with  Congress, 
but  a  state  legislature  may  act  according 
to  its  deliberate  view  of  the  matter,  until 
Congress  sliall  have  given  some  adverse  ex- 
pression on  the  subject.  Austin  v.  State, 
101  Tenn.  563,  48  S.  W._  305,  50:  478 

84.  Every  state  has  the  right,  under  its 
reserved  police  power,  to  prohibit  the  Im- 
portation and  sale  of  all  articles  inherently 
unworthy  of  commerce,  and  unfit  for  the  use 
of  its  people.  Id. 

85.  It  is  an  act  of  interstate  commerce 
for  a  foreign  corporation  to  sell  and  set  up 
machinery  in  a  state  where  it  has  no  agency 
or  office.  Milan  Mill.  &  Mfg.  Co.  v.  Gorton, 
93  Tenn.  590,  27  S.  W.  971,  26:  135 

86.  A  specific  tax  levied  under  a  statute 
of  a  state  on  persons  engaged  in  conducting 
a  particular  business  does  not  violate  U.  S. 
Const,  art.  1,  §  8,  If  3,  as  an  interference  by 
the  state  with  interstate  commerce,  where 
the  property  employed  in  such  business  Tias 
been  brought  into  the  state  and  has  itself 
become  subject  to  taxation  therein.  Singer 
Mfg.  Co.  v.  Wright,  97  Ga.  114,  25  S.  E.  249, 

35:497 

87.  An  article  brought  from  another  state 
under  a  contract  of  purchase  ceases  to  be  an 
article  of  interstate  commerce  so  far  as  the 
contract  makes  an  unlawful  trust  by  giving 
the  purchaser  an  exclusive  control  of  its 
sale  in  that  vicinity,  and  binding  him  not 
to  deal  in  any  other  article  of  the  kind. 
Fuqua  v.  Pabst  Brewing  Co.  90  Tex.  298, 
38  S.  W.  29,  750,  35:241 
Emigrant  agents. 

88.  A  tax  upon  emigrant  agents  engaged 
in  hiring  laborers  in  the  state  to  be  em- 
ployed beyond  the  limits  of  the  state  Is  not 
a  regulation  of  interstate  commerce.  Wil- 
liams v.  Fears,  110  Ga.  584,  35  S.  E.  699, 

50:  685 


COMMERCE.  IV.  a. 


491 


Food. 

89.  The  requirement  that  oleomargarine 
and  artificial  or  adulterated  butter  shall  be 
colored  pink,  which  is  made  by  W.  Va.  Acts 
1891,  chap.  8,  prescribing  a  penalty  for  its 
violation,  is  not  unconstitutional,  although 
it  applies  to  products  manufactured  within 
or  without  the  state.  State  v.  Myers,  42 
W.  Va.  822,  26  S.  E.  539,  .  35:  844 

90.  A  license  tax  of  $500  per  annum,  im- 
posed on  every  person  selling  in  a  city  any 
meat  which  is  not  from  animals  of  his  own 
raising,  unless  he  rents  a  stall  in  a  public 
market,  while  the  rent  of  such  stall  is  $150 
per  year  and  the  market  regulations  are  so 
restricted  and  burdensoipe  as  to  preclude 
the  reasonable  conduct  of  a  wholesale  busi- 
ness there,  is  unconstitutional  in  respect 
to  wholesale  dealers  in  meat  brought  from 
other  states,  by  reason  of  the  necessarily  re- 
sulting discrimination  against  them,  al- 
though the  ordinances  on  the  ^subject  on 
their  face  purport  to  apply  to  vendors  ir- 
respective of  the  places  from  which  it 
comes, — especially  where  neither  sales  nor 
inspection  of  meat  are  restricted  to  the 
market,  and  the  regulations  are  clearly 
made  for  the  purpose  of  revenue,  and  not 
merely  to  prevent  the  sale  of  uninspected 
meat.  Georgia  Packing  Co.  v.  Macon,  60 
Fed.  774,  22:  775 

91.  The  prohibition  of  having  in  pos- 
session, thereby  forbidding  the  sale  of, 
certain  fish  during  the  close  season,  con- 
tained in  the  New  York  fisheries,  game,  and 
forest  law,  §§  110,  112,  renders  the  act  void 
as  a  regulation  of  foreign  commerce,  as  ap- 
plied to  fish  purchased  in  Canada  and  Im- 
ported, under  the  United  States  Revenue 
laws  on  payment  of  the  prescribed  duties, 
for  sale  in  the  state  as  an  article  of  food 
and  commerce.  (Per  Parker,  Ch.  J.,  Landon 
&  O'Brien,  JJ.)  People  v.  Buffalo  Fish  Co. 
164  N.  Y.  93,  58  N.  E.  34,  52:  803 

92.  A  statute  prohibiting  the  sale  of  game 
or  fish  during  the  closed  season  is  not  an 
unlawful  restriction  of  interstate  com- 
merce as  applied  to  game  or  fish  imported 
from  other  states  as  articles  of  foo^. 
People  V.  O'Neil,  110  Mich.  324,  68  N.  W. 
227,  33:  696 
Cigarettes. 

93.  Cigarettes  are  not  legitimate  articles 
of  commerce  within  the  protection  of  the 
United  States  Constitution,  because  they 
possess  no  virtue,  but  are  inherently  bad, 
and  onlv  bad.  Austin  v.  State,  101  Tenn. 
563,  48  S.  W.  305,  50:  478 

94.  The  internal  revenue  tax  on  cigarettes 
by  U.  S.  Rev.  Stat.  §  3392,  U.  S.  Comp. 
Stat.  1901,  p.  2219,  is  not  a  recognition  of 
them  as  proper  commercial  commodities.  Id. 
Lightning  rods. 

95.  The  sale  of  lightning  rods,  constitut- 
ing only  a  part  of  the  original  package  in 
which  they  were  brought  from  another 
state,  is  not  interstate  commerce.  State  v. 
Gorham,  115  N.  C.  721,  20  S.  E.  179,    25:  810 

96.  A  license  tax  on  the  business  of  put- 
ting up  lightning  rods  is  not  a  tax  on  inter- 
state commerce,  in  case  of  a  person  who 
puts  up  no  rods  except  those  which  he  sells 


and  which 'are  brought  from  another  state, 
although  he  puts  them  up  without  extra 
charge.  Id. 

Intoxicating  liquors. 
For  Editorial  Notes,  see  infra,  V.  §  7. 

97.  The  sale,  as  well  as  the  conditions 
upon  which  intoxicating  liquors  shall  be 
transported  after  entering  the  territorial 
limits  of  a  state,  is  left  to  state  legislation 
by  the  act  of  Congress  of  1890  known  as  the 
Wilson  act.     State  ex  rel.  George  v.  Aiken, 

42  S.  C.  222,  20  S.  E.  221,  26:  345 

98.  The  police  power  of  the  state  to 
regulate  the  sale  of  liquors  transported 
from  another  state  does  not  infringe  on  the 
power  delegated  to  Congress  to  regulate 
interstate  commerce.  State  v.  Fulker,  43 
Kan.  237,  22  Pac.  1020,  7:  183 

99.  Intoxicating  liquors  transported  from 
one  state  cannot  be  sold  within  a  state  for 
uses  forbidden  by  its  laws,  although  the 
transportation  itself  cannot  be  prevented  by 
such  state.     State  v.  Creeden,  78  Iowa,  536, 

43  N.  W.  673,  7:  295 
[Overruled  by  Leisy  v.  Hardin,  135  U.  S. 
100,  34  L.  ed.  128,  10  Sup.  Ct.  Rep.  681,  but 
made  a  correct  statement  of  the  law  by  the 
act  of  Congress  of  August  8,  1890,  known 
as  the  Wilson  bill.] 

100.  A  statute  making  it  unlawful  for 
private  persons  to  sell  intoxicating  liquors 
is  not  an  unconstitutional  regulation  of 
interstate  commerce  because  a  person  may 
have  on  hand  some  liquors  imported  from 
other  states.  Plumb  v.  Christie,  103  Ga.  686, 
30  S.  E.  759,  42:  181 

101.  Beer  brought  from  another  state  un- 
der an  invalid  trust  agreement  becomes 
upon  its  arrival  in  the  state  immediately 
subject  to  an  anti-trust  law  of  the  state, 
by  virtiie  of  the  act  of  Congress  of  August 
8,  1890.  Fuqua  v.  Pabst  Brewing  Co.  90 
Tex.  298,  38  S.  W.  29,  750,  35:  241 

102.  The  commerce  clause  of  the  Federal 
Constitution  is  not  violated  by  a  provision 
of  a  state  statute  forbidding  the  bringing  of 
an  action  for  the  price  of  liquors  sold  in  an- 
other state,  to  be  resold  in  violation  of  the 
laws  of  the  state  where  the  statute  was 
passed.  Corbin  v.  Houlehan,  100  Me.  246, 
61  Atl.  131,  70:  568 

103.  Intoxicating  liquors  purchased  in 
another  state,  at  a  distillery,  for  the  use  of 
the  purchaser  himself,  and  transported  by 
him  in  his  own  private  conveyance  across 
the  state  line  toward  his  home,  have  not 
arrived  within  the  state,  within  the  mean- 
ing of  the  Wilson  act,  so  as  to  become 
contraband  under  the  South  Carolina 
statutes,  while  in  course  of  transportation' 
between  the  state  boundary  and  the  home 
of  the  purchaser.  State  v.  Holleyman,  55 
S.  C.  207,  31  S.  E.  362,  33  S.  E.  366,    45:  567 

104.  Discrimination  in  favor  of  intoxi- 
cating liquors  bought  from  a  dispensary,  as 
against  liquors  purchased  beyond  the  limits 
of  the  state  for  the  personal  use  of  the 
purchaser,  with  respect  to  the  necessity  of 
having  certificates  as  to  the  purity  of  the 
liquors,  or  the  fact  that  they  are  kept  for 
personal  use,  would  constitute  a  burden  on 
interstate  commerce.  Id* 


492 


COMMERCE,  IV.  b. 


105.  The  New  Hampshire  statute  making 
it  an  offense  for  a  person  to  solicit  or  take 
orders  for  spirituous  liquors  in  the  state,  to 
be  delivered  at  a  place  without  the  state, 
knowing,  or  having  reasonable  cause  to  be- 
lieve, that  if  so  delivered  the  same  will  be 
transported  into  the  state  and  sold  in  vio- 
lation of  law,  is  not  void  as  a  state  regu- 
lation of  commerce.  Lang  v.  Lynch,  38  Fed. 
489,  4:  831 
Convict  made  goods. 

106.  A  statute  forbidding  the  sale  of 
goods  made  by  convicts  without  being 
marked  "Convict  made"  is  unconstitutional 
as  applied  to  goods  made  in  other  states. 
People  V.  Hawkins,  157  N.  Y.  1,  51  N.  E. 
257,  42:  490 
Purchase  of  goods  to  be  shipped  from  state. 
See  also  supra,  105;  infra,  164-166. 

107.  Even  if  a  statute  imposing  a  license 
fee  for  the  privilege  of  buying  certain  prod- 
uce in  a  particular  county  to  be  shipped 
out  of  it  might  be  held  void  as  an  inter- 
ference with  interstate  commerce  so  far  as 
it  applies  to  produce  purchased  to  be 
shipped  out  of  the  state,  it  is  valid  in  its 
application  to  produce  intended  for  ship- 
ment to  places  within  the  state.  Rothermel 
v.  Meyerle,  136  Pa.  250,  20  Atl.  583,     9:  366 

108.  The  exaction  of  a  license  fee  for  the 
privilege  of  purchasing  goods  to  be  shipped 
to  another  state  is  not  unconstitutional  as  a 
tax  upon  interstate  commerce,  since  at  most 
it  is  simply  a  tax  on  the  goods  at  the  time 
of  their  purchase,  at  which  time  they  are 
subject  to  state  taxation,  and  so  remain 
until  the  business  of  transportation  has 
actually  commenced.  Id. 

b.  In  Original  Packages. 

See  also  supra,  95;  infra,  142-144,  160-162. 

109.  An  original  package  is  that  package 
which  is  delivered  by  the  importer  to  the 
carrier  at  the  initial  point  of  shipment,  in 
the  exact  condition  in  which  it  was  shipped. 
McGregor  v.  Cone,  104  Iowa,  465,  73  N.  W. 
1041,  39:  484 

110.  An  original  package,  trade  in  which 
is  protected  by  the  Federal  Constitution,  is 
such  form  and  size  of  package  as  is  used 
by  producers  or  shippers  for  the  purpose  of 
securing  both  convenience  in  handling  and 
security  in  transportation  of  merchandise 
between  dealers  in  the  ordinary  course  of 
actual  commerce.  Com.  use  of  Philadelphia 
Oountv  V.  Schollenberger,  156  Pa.  201,  27 
Atl.  30,  22:  155 
[Reversed  by  the  Supreme  Court  of  the 
United  States  in  171  U.  S.  1,  43  L.  ed.  49,  18 
Sup.  Ct.  Rep.  757.] 

111.  The  determination  of  the  internal 
revenue  department  that  a  package  is  a 
proper  and  original  package  for  purposes  of 
taxation  does  not  show  that  it  is  an  original 
package  of  commerce.  McGregor  v.  Cone, 
104  Iowa,  465,  73  N.  W.  1041,  39:  484 

112.  The  sale  of  a  package  of  goods  entire 
and  unbroken,  as  imported  from  another 
Btate,  will  be  protected  as  interstate  com- 
merce only  when  the  form  and  size  of  the 


package  is  that  usually  adopted  in  the 
trade  for  purpose  of  transportation,  and  not 
when  adopted  with  a  view  to  unlawful 
interstate  retail  trade.  Com.  use  of  Phila- 
delphia County  V.  Schollenberger,  156  Pa. 
201,  27  Atl.  30,  22:  155 

[Reversed  by  the  Supreme  Court  of  the 
United  States  in  171  U.  S.  1,  43  L.  ed.  49, 
18  Sup.  Ct.  Rep.  757.] 

113.  A  statute  prohibiting  the  sale  of  seed 
unless  the  year  in  which  it  is  grown  is  plain- 
ly marked  on  each  package,  except  on  a  sale 
of  seed  in  open  bulk  by  farmers  to  other 
farmers  or  gardeners,  is  void  as  to  seed 
brought  from  another  state  and  sold  in 
original  packages.  ,Re  Sanders,  52  Fed.  802, 

18:549 

114.  A  territorial  statute  which  imposes  a 
license  fee  as  a  condition  upon  which  coal 
oil  may  be  sold  in  the  territory  is  uncon- 
stitutional and  void,  in  so  far  as  it  applies 
to  sales  in  original  packages  by  the  importer 
of  coal  oil  produced  and  refined  without  the 
territory.  Re  Wilson,  10  N.  M.  32,  60  Pac. 
73,  48:  417 
Food;  oleomargarine. 

115.  Showing  that  a  package  of  material 
to  be  used  as  food  was  made,  stamped,  and 
branded  in  another  state,  is  not  sufficient  to 
show  that  it  is  an  original  package,  trade  In 
which  is  protected  by  the  Federal  Constitu- 
tion, without  showing  further  that  it  was 
in  the  form  usually  adopted  in  the  trade 
for  purposes  of  transportation.  Com.  use  of 
Philadelphia  County  v.  Schollenberger,  156 
Pa.  201,  27  Atl.  30,  22:  155 

116.  A  statute  prohibiting  the  coloring, 
coating,  or  polishing  of  an  article  intended 
for  food,  whereby  damage  or  inferiority  is 
concealed,  is  not  in  conflict  with  the  power 
of  Congress  to  regulate  commerce,  although 
applied  to  articles  sold  in  original  packages 
imported  from  other  states.  Arbuckle  v. 
Blackburn,  51  C.  C.  A.  122,  113  Fed.  616, 

65.-864 

117.  The  sale  of  oleomargarine  in  original 
packages  as  imported  from  another  state 
cannot  be  prohibited  or  interfered  with  by 
state   statute.     Re  Gooch,  44  Fed.  276, 

10:  830 

118.  A  statute  prohibiting  the  manu- 
facture, sale,  or  offer  for  sale,  of  any  article 
in  imitation  of  yellow  butter,  but  providing 
that  it  shall  not  prohibit  the  sale  of  oleo- 
margarine in  its  real  character,  free  from 
anything  that  looks  like  butter,  is  not  void 
as  a  regulation  of  commerce,  even  as  applied 
to  the  sale  of  oleomargarine  in  the  original 
packages  in  which  it  was  brought  from  an- 
other state.  Com.  v.  Huntley,  156  Mass. 
236,  30  N.  E.  1127,  15:  839 

119.  A  10-pound  package  of  oleomargarine 
put  up  by  a  nonresident  manufacturer,  and 
sent  into  the  state  for  sale  at  retail  to  an 
individual  customer,  and  thus  sold  by  an 
agent  for  use  as  food,  is  not  an  original 
package  the  sale  of  which  is  protected 
against  state  laws  by  the  Constitution  of 
the  United  States.  Com.  v.  Paul,  170  Pa. 
284,  33  Atl.  82,  30:  396 
[Reversed    by   the    Supreme   Court    of   the 


COMMERCE,  IV.  b. 


«» 


United  States  in  171  U.  S.  1,  43  L.  ed.  49, 

18  Sup.  Ct.  Rep.  757.] 

Cigarettes. 

120.  One  claiming  the  right  to  import  and 
sell  cigarettes  in  original  packages  con- 
trary to  the  law  of  the  state,  under  pro- 
tection of  the  United  States  Constitution, 
must  prove  every  fact  essential  to  show 
that  his  sale  was  of  such  package.  Austin 
V.  State,  101  Tenn.  563,  48  S.  W.  305, 

50:  478 

121.  Pasteboard  boxes  of  cigarettes,  each 
containing  ten  cigarettes,  and  separately 
stamped  and  labeled,  as  prescribed  by  the 
United  States  revenue  statute,  are  not 
original  packages  of  commerce,  when  they 
are  transported  in  an  open  basket  which  be- 
longs to  an  express  company,  and  which  is 
filled  and  emptied  by  its  agent;  but  the 
basket  is  the  original  package.  Id. 

122.  A  pine  box  in  which  are  packed  for 
convenience  in  shipment  packages  of  ciga- 
rettes, each  of  which  contains  terh  cigarettes 
and  is  sealed  with  an  internal  revenue 
stamp,  without  any  other  packing  or  in- 
closure  around  or  about  them  except  the 
box  itself,  is,  the  original  package  of  com- 
merce, and  when  that  is  opened  the  pack- 
ages of  cigarettes  are  subject  to  the  police 
power  of  the  state  as  a  part  of  the  common 
mass  of  property  therein.  McGregor  v. 
Cone,  104  Iowa,  465,  73  N.  W.  1041,  39:  484 
Intoxicating  liquors. 

Partial  Invalidity  of    Statute    as    to,    see 

Statutes,  104. 
For  Editorial  Notes,  see  infra,  V.  §  7. 

123.  Intoxicating  liquors  transported 
from  another  state  to  a  point  in  Kansas  are 
subject  to  the  laws  of  Kansas  relating  to 
the  sale  and  disposition  of  such  property, 
and  they  cannot  be  sold  at  the  place  of 
destination  in  the  original  packages  or  other 
form,  except  as  the  laws  of  the  state  pre- 
scribe. State  v.  Fulker,  43  Kan.  237,  22 
Pac.  1020,  7:  183 

124.  Intoxicating  liquors  purchased  in 
another  state,  when  delivered  to  the  pur- 
chaser, though  remaining  in  the  original 
packages,  become  at  once  subject  to  the 
laws  of  the  state  where  they  are  delivered; 
and  the  owner  has  no  right  to  use  or  dispose 
of  them  in  a  manner  different  from  that 
prescribed  by  the  laws  of  the  state  for  the 
sale  or  use  of  such  property  generally. 
Collins  V.  Hills,  77  Iowa,  181,  41  N.  W.  571, 

3:  110 
[The  decisions 'contained  in  the  two  preced- 
ing paragraphs  are  overruled  by  the  case  of 
Leisy  v.  Hardin,  135  U.  S.  100,  34  L.  ed. 
128,  10  Sup.  Ct.  Rep.  681,  but  nevertheless 
state  the  law  as  it  is  now,  by  virtue  of  the 
subsequent  act  of  Congress  of  August  8, 
1890,  known  as  the  Wilson  bill.] 

125.  Where  intoxicating  liquors  are  im- 
ported in  small  bottles,  each  bottle  being 
wrapped  in  a  separate  paper,  in  which  con- 
dition they  are  delivered  to  the  carrier,  who, 
for  the  purpose  of  facilitating  transpor- 
tation, places  the  bottles  in  boxes  furnished 
by  himself,  the  bottles  will  constitute  the 


original  package.     Keith  v.   State,  91   Ala. 
2,  8  So.  353,  10:  430 

12G.  Where  intoxicating  liquors  are  im- 
ported in  small  bottles,  each  of  which  is 
wrapped  in  paper,  and  labeled  "Original 
package,"  the  bottles  being  packed  by  tne 
shipper,  for  the  purpose  of  facilitating  the 
shipment,  in  an  open  box,  marked  with  the 
number  and  size  of  the  bottles  contained 
therein,  the  box,  and  not  the  bottle,  is  the 
original  package.  Id. 

127.  When  bottles  of  whisky  or  beer  are 
each  sealed  up  in  a  paper  wrapper,  ana 
closely  packed  together  in  uncovered  wooden 
boxes  furnished  by  the  importer,  and  these 
wooded  boxes  are  marked  to  the  address  oi 
the  agents,  and  shipped  from  one  state  to 
another,  the  wooden  boxes,  and  not  the  bot- 
tles, constitute  the  original  package,  within 
the  meaning  of  the  decision  of  the  Supreme 
Court  of  the  United  States.  State  v.  Chap- 
man, 1  S.  D.  414,  47  N.  W.  411,  10:  432 

128.  The  drawing  of  a  bung  in  a  barrel 
in  which  intoxicating  liquors  were  shipped 
from  another  state,  in  order  to  obtain  a 
small  quantity  for  testing  the  article  to  de- 
termine an  option  to  reject  the  purchase, 
does  not  destroy  the  nature  of  the  original 
package.  Wind  v.  Her,  93  Iowa,  316,  61  N. 
W.  1001,  27:  219 

129.  A  sale  of  the  contents  merely  of  the 
packages  in  which  liquor  was  imported  into 
the  state,  the  purchaser  being  required  to 
open  them  and  empty  the  liquor  into  glasses 
furnished  by  the  seller,  is  not  a  sale  by 
original  packages,  exempt  as  interstate  com- 
merce from  the  operation  of  state  laws 
regulating  the  sale  of  intoxicating  liquors. 
Hopkins  v,  Lewis,  84  Iowa,  690,  51  N.  W. 
255,  15:  397 

130.  An  importer  of  liquors  into  any  state 
cannot  be  restrained  by  the  courts  of  that 
state  from  selling  them,  so  long  as  they  are 
sold  in  the  unbroken  packages  in  which 
they  existed  during  their  transportation; 
and  such  sale  can,  under  the  authority  of 
the  decision  of  the  Supreme  Court  of  the 
United  States  in  Leisy  v.  Hardin,  135  U.  S. 
100,  34  L.  ed.  128,  10  Sup.  Ct.  Rep.  681,  be 
made  without  regard  to  the  size  of  the 
packages  or  of  the  laws  of  the  state  ivt^ 
which  such  liquors  are  imported.  State  ex 
rel.  Cochran  v.  Winters,  44  Kan.  723,  25 
Pac.  237,  10:  616 

131.  A  state  prohibitory  law,  under  the 
decision  in  Leisy  v.  Hardin,  remains  in  full 
force  except  so  far  as  it  was  declared  in- 
applicable as  to  imported  intoxicating 
liquors  while  remaining  in  the  original 
packages,  and  therefore,  under  the  Wilson 
bill,  making  such  liquors  subject  to  the 
laws  of  the  state  upon  their  arrival,  no  re- 
enactment  of  the  statute  is  necessary  in 
order  to  give  it  effect  as  to  such  imported 
liquors.  Re  Van  Vliet,  43  Fed.  761,  10:  451 
Re  Spickler,  43  Fed.  653,  10:  446 
Contra,  Re  Rahrer,  43  Fed.  556,  10:  444 

132.  A  state  law  may  make  a  sale  of 
liquors  to  a  person  of  known  intemperate 
habits  a  criminal  offense,  although  the 
liqiiors  are  sold  in  the  original  packages  in 


494 


COMMERCE,  IV.   c. 


which  they  are  imported  from  another  state. 
Com.  V.  Zelt,  138  Pa.  615,  21  Atl.  7,    11:  602 

133.  Sales  of  intoxicating  liquors  shipped 
to  another  state  in  the  original  packages  be- 
fore the  passage  of  the  Wilson  bill  are  not 
subject  to  the  laws  of  that  state  respecting 
the  recovery  of  money  paid  on  such  sales. 
Wind  V.  Her,  93  Iowa,  316,  61  K  W.  1001, 

27:  219 

134.  A  consignment  of  intoxicating 
liquors  "arrives"  in  the  state  within  the 
meaning  of  the  Wilson  bill,  which  makes 
such  liquors  subject  "upon  arrival  in  such 
state"  to  the  laws  of  the  state,  as  soon  as 
it  crosses  the  state  boundary  and  enters  the 
state,  although  the  contract  of  carriage  is 
not  then  completed.  State  v.  Rhodes,  90 
Iowa,  496,  58  N.  W.  887,  24:  245 
[Reversed  by  the  Supreme  Court  of  the 
United  States  in  170  U.  S.  412,  42  L.  ed. 
1089,  18  Sup.  Ct.  Rep.  664.] 

c.  Sales  by  Peddlers  and  Agents;  by  Sample. 

See  also  supra,  119. 

For  Editorial  Notes,  see  infra,  V.  §  4. 

135.  That  one  having  goods  for  sale  is  a 
nonresident  manufacturer,  and  sells  his 
goods  within  the  state  through  an  agent, 
does  not,  under  the  Federal  Constitution,  re- 
lieve him  from  the  operation  of  the  local  po- 
lice laws,  if  he  keeps  in  the  state  a  store 
containing  a  stock  of  goods  for  the'  inspec- 
tion of  customers,  from  which  he  makes 
sales  to  actual  customers.  Com.  use  of 
Philadelphia  County  v.  Sehollenberger,  156 
Pa.  201,  27  Atl.  30,  22:  155 
[Reversed  on  other  grounds  by  the  Supreme 
Court  of  the  United  States  in  171  U.  S.  1, 
43  L.  ed.  49,  18  Sup.  Ct.  Rep.  757.] 

136.  A  tax  on  the  privilege  of  selling  fer- 
tilizers is  a  tax  on  the  fertilizers  and  there- 
fore invalid,  so  far  as  it  relates  to  ferti- 
lizers brought  from  other  states,  being  a  tax 
on  interstate  commerce;  and  it  is  im- 
material that  no  discrimination  is  made  in 
favor  of  or  against  the  products  of  other 
states.  American  Fertilizing  Co.  v.  North 
Carolina  Bd.  of  Agri.  43  Fed.  609,     11:  179 

137.  That  clause  of  W.  Va.  Code,  chap.  32, 
§  2,  as  amended  by  W.  Va.  Acts  1885,  chap. 
17,  which  reads,  "Nor  shall  any  agent 
traveling  with  one  or  more  horses  sell  any 
lightning  rod,  sewing  machine,  or  organ,  oi 
other  musical  instrument,  without  a  state 
license  therefor,"  is  not  unconstitutional  as 
applied  to  such  agents  selling  Singer  sewing 
machines  manufactured  outside  of  that 
state.  State  v.  Richards,  32  W.  Va.  348.  9 
S.   E.  245,  3:  705 

138.  An  ordinance  prohibiting  the  busi- 
ness of  itinerant  merchants  to  be  carried  on 
without  a  license  is  not  invalid  as  a  regu- 
lation of  interstate  commerce,  as  applied  to 
one  who  purchases  bankrupt  stocks  wher- 
ever he  can  obtain  them  to  the  best  ad- 
vantage and  sometimes  buys  them  in  other 
states,  when  it  makes  no  discrimination  be- 
tween merchants  whose  goods  are  imported 
into  the  state  and  those  whose  goods  are 
manufactured  or  purchased  in  the  state,  and 
does   not   impose   any   burden   on    sales    in 


I  original  packages  brought  into  the  state. 
CarroUton  v.  Bazzette,  159  lU.  284,  42  N.  E. 
837,  31:  522 

By  peddlers  generally. 
For  Editorial  Notes,  see  infra,  V.  §  4. 

139.  A  state  statute  prohibiting  the  sale 
of  goods  by  hawkers  or  peddlers  is  not  void 
as  a  regulation  of  commerce,  where  there  is 
no  discrimination  against  nonresidents  or 
goods  from  out  of  the  state.  Com.  v. 
Gardner,  133  Pa.  284,  19  Atl.  550,      7:  666 

140.  Requiring  a  license  tax  of  peddlers  is 
not  a  regulation  of  interstate  commerce  be- 
cause the  goods  sold  belonged  to  a  citizen 
of  another  state,  if  they  are  carried  by  the 
peddler  and  delivered  as  they  are  sold.  State 
V.  Emert,  103  Mo.  241,  15  S.  W.  81,  H:  219; 
Re  Wilson,  8  Mackey,  341,  12:  624 
.  141.  An  ordinance  imposing  a  license  on 
hawkers  and  peddlers  does  not  interfere 
with  interstate  commerce  in  the  case  of  a 
peddler  of  chairs  imported  into  the  state  be- 
fore his  employment  begins,  even  though 
the  sale  by  him  is  conditional  and  the  title 
remains  in  the  foreign  owner.  South  Bend 
V.  Martin,  142  Ind.  31,  41  N.  E.    315.    29:  531 

142.  The  peddling  of  the  separate  articles 
after  the  package  in  which  they  were  ship- 
ped from  other  states  has  been  broken  may 
lawfully  be  regulated  under  the  police  power 
of  a  state.  Com.  v.  Harmel,  166  Pa.  89,  30 
Atl.  1036,  27:  388 

143.  A  reasonable  license  fee  charged  upon 
itinerant  vendors  of  drugs  or  articles  in- 
tended for  the  treatment  of  diseases,  who 
publicly  profess  to  cure  or  treat  diseases,  is 
not  an  unconstitutional  interference  with 
interstate  commerce,  although  the  medicines 
sold  were  in  original  packages  brought  from 
another  state.  State  v.  Wheelock,  95  Iowa, 
577,  64  N.  W.  620,  30:  429 

144.  Small  packages  of  goods  sold  from 
house  to  house  have  lost  their  distinctive 
character  of  imports,  where  wholesale  pack- 
ages have  been  sold  by  an  agent,  for  each 
of  which  he  credits  the  purchaser  with  the 
retail  price  of  one  of  the  small  packages 
therein  contained,  and  then  sells  these  as 
an  advertisement  for  the  purchasers,  if 
these  small  packages  are  either  taken  from 
the  packages  sold  at  wholesale,  or  are 
shipped  in  a  larger  package  directly  to  the 
agent.  Re  Wilson,  8  Mackey,  341,  12:  624 
By  factors. 

145.  A  statute  which  does  not  in  terms 
apply  to  interstate  business,  but  constitutes 
a  police  regulation  of  the  business  of  cer- 
tain classes  of  commission  men,  is  not  in- 
valid as  to  local  or  domestic  business  be- 
cause it  may  incidentally  or  indirectly  af- 
fect interstate  commerce.  State  ex  rel. 
Beek  v.  Wagener,  77  Minn.  483,  80  N.  W. 
633,  46:  442 

146.  A  statute  requiring  merchants 
licensed  to  sell  grain  on  commission  to 
render  a  true  statement  to  the  consignor 
within  twenty-four  hours  of  making  a  sale, 
showing  the  grain  sold,  price  received,  name 
and  address  of  purclvaser,  and  the  date, 
hour,  and  minute  when  sold,  with  vouchers 
for  charges  and  expenses,  is  not  unconsti- 
tutional as  an  interference  with  interstate 


COMMERCE,  IV.  c 


495 


commerce,  though  applying  to  shipments 
from  beyond  as  well  as  from  within  the 
state.  State  v.  Edwards,  94  Minn.  225,  102 
N.  W.  697.  69:  667 

Merchandise  brokers. 

Constitutional  Question  Shown  for  Purpose 
of  Appeal,  see  Appeal  and  Error,  82. 

147.  A  license  tax  on  merchandise  brokers 
is  invalid  as  a  regulation  of  interstate 
commerce,  when  applied  to  a  citizen  and  res- 
ident of  a  city  whose  occupation  is  solely 
the  solicitation  of  orders  in  the  city  by 
personal  application  and  by  exhibition  of 
samples,  for  nonresident  merchants,  who  are 
his  principals,  for  the  negotiation  of  sales 
of  goods  which  are  not  in  the  state.  Ad- 
kins  V.  Richmond,  98  Va.  91,  34  S.  E.  967, 

47:583 
Agents  of  foreign  corporation. 
See  also  infra,  164. 

148.  A  statute  expressly  providing  that 
all  contracts  of  a  corporation  whfoh  has  not 
paid  the  franchise  tax  shall  be  void  cannot 
apply  to  sales  of  foreign  corporations, 
through  itinerant  agents,  of  commodities 
manufactured  outside  the  state.  Coit  &  Co. 
V.   Sutton,   102    Mich.    324,    60  N.   W.   600, 

25:  819 

149.  A  contract  by  which  a  resident  of  a 
state  agrees  with  a  foreign  corporation  to 
canvass  certain  territory  for  the  sale  of  its 
sewing  machines,  which  the  corporation 
thereby  agrees  to  sell  to  him  on  credit,  and 
a  bond  given  to  secure  payment  to  the  cor- 
poration of  any  sum  that  may  become  due 
under  such  contract,  constitute  a  part  of  the 
interstate  commerce  carried  on  by  the  sale 
of  such  sewing  machines  in  accordance  with 
said  contract,  and  therefore  cannot  be  af- 
fected by  a  state  statute  prohibiting  busi- 
ness within  the  state  by  a  foreign  corpora- 
tion which  has  not  complied  with  certain 
requirements,  such  as  filing  a  certificate  to 
designate  an  agent  on  whom  process  may 
be  served.  Ounn  v.  White  Sewing- Mach.  Co. 
57  Ark.  24,  20  S.  W.  591,  18:  206 

150.  An  agent  of  a  nonresident  organ 
company,  who  travels  by  wagon,  carrying 
an  organ  with  him  which  he  sells  whenever 
he  can  do  so,  or,  in  lieu  thereof,  takes  an 
order  for  a  different  organ  which,  when 
shipped  to  him.  he  delivers  to  the  purchaser, 
is  engaged  in  interstate  commerce  so  as  to 
be  exempt  from  an  occupation  tax  on  ped- 
dlers under  state  law.  French  v.  State,  42 
Tex.  Crim.  Rep.  222,  58  S.  W.  1015,    52:  160 

151.  An  exemption  of  manufacturers  who 
have  paid  taxes  on  capital  employed,  from 
the  provisions  of  a  statute  imposing  a  li- 
cense tax  upon  peddlers,  renders  the  stat- 
ute unconstitutional  as  a  regulation  of  com- 
merce when  applied  to  a  nonresident  acting 
as  an  agent  or  employed  in  the  sale  of  goods 
owned  and  manufactured  by  a  nonresident 
corporation.  Com.  v.  Myers,  92  Va.  809,  23 
S.  E.  915,  31:379 
Solicitors  or  drummers;    by  sample. 

See  also  infra,  165. 

For  Editorial  Xotes,  see  infra.  V.  §  4. 

152.  One  soliciting  orders  for  goods  from 
house  to  house  cannot  refuse  to  comply  with 
the  terms  of  a  police  ordinance  regulating 


such  business,  which  applies  to  all  alike, 
on  the  ground  that  he  is  engaged  in  inter- 
state commerce,  because  he  is  working  for 
a  person  domiciled  in  another  state,  and 
simply  exhibits  samples  and  takes  orders 
which  are  filled  by  another  agent  or  by  ex- 
press. Titusville  v.  Brennan,  143  Pa.  642,  22 
Atl.   893,  14:  100 

153.  Persons  engaged  in  showing  samples 
of  goods  manufactured  by  their  principal  at 
his  residence  in  another  state,  and  in  taking 
orders  for  such  goods,  which  are  transmitted 
to  the  principal  to  be  filled,  cannot  be  com- 
pelled to  pay  a  license  tax  by  the  state  in 
which  they  are  operating,  whether  they  are 
within  its  statutory  definition  of  peddlers 
or  not.    Re  Spain,  47  Fed.  208,  14:  97 

154.  The  solicitation  of  orders  for  books 
within  a  city  by  an  agent  who  is,  like  his 
principal,  a  citizen  of  another  state  to  which 
all  orders  are  sent  to  be  filled^  such  agent 
neither  delivering  the  books  nor  collecting 
any  money,  constitutes  interstate  com- 
merce; and  an  ordinance  requiring  a  license 
for  doing  such  business  is  void.  Re  White 
43  Fed.  913,  11:  284 

155.  A  municipal  ordinance  prohibiting 
traveling  merchants  and  peddlers  from  sell- 
ing, or  offering  for  sale,  any  merchandise 
without  having  first  obtained  a  license  can- 
not be  enforced  against  a  person  who  makes 
negotiations  for  the  sale  of  property  owned 
and  situated  in  another  state,  because  of 
the  United  States  constitutional  provision 
giving  Congress  the  power  to  regulate  com- 
merce between  the  states.  McLaughlin  v. 
South    Bend,    126  Ind.    471,  26  N.  E.    185; 

10:  357 

156.  A  state  tax  on  the  business  of  buying 
and  selling  "futures"  is  not  a  tax  on  inter- 
state commerce,  although  the  business  is 
carried  on  by  the  agent  of  a  citizen  of 
another  state  who  solicits  orders  within  the 
state  imposing  the  tax,  to  be  executed  out 
of  it.  Alexander  v.  State,  86  Ga.  246,  12  S. 
E.  408,  10:  859 

157.  An  ordinance  imposing  a  license  tax 
on  occupations  is  invalid  as  against  a  per- 
son selling  picture  frames,  when  he  sells 
them  only  on  pictures  made  in  another 
state  pursuant  to  orders  theretofore  given. 
Laurens  v.  Elmore,  55  S.  C.  477.  33  S.  E. 
560,  45:249 

158.  The  sale  of  a  frame  for  a  portrait 
made  in  another  state  to  fill  an  order  taken 
by  a  solicitor  in  the  state  where  it  was  de- 
livered is  a  mere  incident  to  the  taking  of 
the  order  for  the  portrait,  and  is  not  with- 
in the  provisions  of  a  state  statute  against 
peddling  without  a  license,  where  the  order 
for  the  portrait  contained  a  provision  that 
it  should  be  delivered  in  a  frame  which  the 
purchaser  of  the  portrait  should  have  the 
option  of  buying  at  wholesale  price.  State 
V.  Coop,  52  S.  C.  508,  30  S.  E.  609,  41 :  501 

159.  Portraits  and  frames  manufactured 
in  another  state  in  compliance  with  orders 
taken  by  a  traveling  salesman,  and  shipped 
into  the  state  consigned  to  the  maker, 
whereupon  they  are  delivered  by  the  agent 
to  the  persons  ordering  them,  and  the  price 
agreed  upon   at  the  time  the  orders  were 


496 


COMMERCE,  V.  (Ed.   Notes.) 


given  collected,  are  the  subject  of  interstate 
commerce;,  and  such  agent  cannot  be  sub- 
jected to  a  licnse  tax  by  state  authority, 
since  the  sale  is  made  in  the  state  in  which 
the  home  company  is  located,  and  not  at 
the  place  of  delivery.  State  v.  Willingham, 
9  Wyo.   290,   62   Pac.   797,  52:  198 

160.  One  who  takes  orders  in  his  own 
name  from  house  to  house,  for  articles  man- 
ufactured in  another  state,  and  who  in  his 
own  name  sends  a  single  order  to  the  manu- 
facturer, without  stating  the  names  of  his 
customers,  and,  on  receiving  the  package 
containing  the  articles,  delivers  therefrom 
the  separate  articles  to  his  customers,  is 
not  engaged  in  interstate  commerce  so  as 
to  be  exempt  from  a  tax  on  the  privilege  of 
selling  articles  of  that  kind  within  the 
county.  Croy  v.  Epperson,  104  Tenn.  525, 
58  S.  W.  235,  51:  254 

161.  A  traveling  agent  for  a  nonresident 
principal,  who  makes  executory  contracts 
for  the  sale  of  goods,  and  who,  when  the 
goods  are  shipped  into  the  state  to  him, 
receives  them  in  bulk,  breaks  the  original 
package  and  distributes  the  contents  among 
his  customers,  is  not  exempt  from  a  state 
license  tax  on  the  ground  that  he  is  en- 
gaged in  interstate  commerce.  Racine  Iron 
Co.  V.  McCommons,  111  Ga.  536,  36  S.  E. 
866,  51 :  134 

162.  Filling  orders  taken  from  house  to 
house  by  an  agent  in  another  state,  by  send- 
ing the  articles  in  bulk  to  the  agent  to  be 
distributed  by  him,  does  not  subject  the 
latter  to  the  payment  of  a  license  tax  as  a 
peddler,  when  he  breaks  the  bulk  and  be- 
gins the  distribution.  Ee  Spain,  47  Fed. 
208,  14:  97 

163.  A  state  statute  requiring  a  license 
from  every  peddler  or  itinerant  trader  by 
sample  or  otherwise,  unless  he  is  a  disabled 
soldier  of  the  state,  is  unconstitutional  as 
a  regulation  of  commerce.  Wrought  Iron 
Range  Co.  v.  Johnson,  84  Ga.  754,  11  S.  E. 
233,  8:  273 
Soliciting  goods  to  be  shipped  from  state. 
See  also  supra,  105,  107,  108. 

164.  The  purchase  and  solicitation  of  wool 
by  an  agent  of  a  foreign  corporation,  for 
shipment  to  other  states  wherein  the  prin- 
cipal business  of  the  corporation  is  done,  is 
a  business  directly  pertaining  to  interstate 
commerce,  which  the  foreign  corporation  is 
entitled  to  engage  in  without  complying 
with  the  state  statute  imposing  conditions 
upon  its  right  to  do  business  in  the  state. 
Macnaughtan  v.  IMeOirl,  20  Mont.  124.  49 
Pac.  651,  38:  367 

165.  Soliciting  pictures  to  be  enlarged  out- 
side of  the  state  constitutes  interstate  com- 
merce, and  therefore  the  privilege  tax  im- 
posed by  Tenn.  Acts  1895  (2d  Sess.),  chap. 
4.  §  3,  pp.  579.  5SS.  on  all  persons  other  than 
phntographors  of  the  state,  who  do  such  so- 
liciting, is  unconstitutional.  State  v.  Scott, 
98  Tenn.  254,  39  S.  W.  1.  36:  461 

166.  An  agent  of  a  laundry  in  another 
state,  who  collects  garments  and  sends  them 
out  of  the  state  to  be  washed  and  laundered, 
and  afterwards  redelivers  them  to  their  own- 
ers, is  not  engaged  in  commerce  so  as  to  be 


protected  against  the  privilege  tax  imposed 
on  his  occupation  by  Tenn.  Acts  1899,  chap. 
432,  §  4,  Smith  v.  Jackson,  103  Tenn.  673, 
54  S.  W.  981;  47:416 


V.  Editorial  Notes. 

a.  Domestic. 

§  I.  Generally. 

State  sovereignty  over.    12.  673.* 
Right  of  states  to  regulate  their  internal 
commerce.    5:  559.* 

b.  Interstate. 

§  2.  Generally. 

As  to  Regulation  of  Freight  Rates,  Gen- 
erally, see  Carriers,  IV.  § 
5. 

Supreme    power    of    Congress    to    regulate. 
12:  624.* 
How  far  power  of  Congress  exclusive. 
6:  580.* 

Interstate  Commerce  Act  construed.  2: 
444.* 

Rates  must  be  reasonable  and  fairly  ad- 
justed.   2:  444.* 

Difference  in  rates ;  wheu  justified.     2 :  444.* 

Classification.     2:  445.* 

Preference  as  to  localities.    2:  445.* 

Right  of  distributing  trade  centers  to  pref- 
erence.   2:  446.* 

Long  and  short  hauls.    12:  436.* 

Power  of  Congress  over  navigable  waters 
under  common  law.  2: 
540.* 

Duty  of  carrier  under  Interstate  Commerce 
Act  to  furnish  cars  to 
shippers.    43 :  230. 

Effect  and  construction  of  Federal  anti- 
trust law.     64:  698. 

Restraint  on,  in  violation  of  anti -trust  act. 
64:  689. 

As  to  Contracts  in  Restraint  of  Trade,  Gen- 
erally, see  Contracts,  VIII. 
§  36. 

Injunction  against  strikes  affecting.  28: 
467. 

Jurisdiction  under  commerce  clause  to  pun- 
ish crimes  committed  by 
or  against  Indians.  21: 
169. 

§  3.  What  is;  subjects  of  commerce. 

Whether  shipments  between  points  in  the 
same  state  lose  their  char- 
acter of  domestic  com- 
merce by  passing  out  of 
the  state  during  transpor- 
tation.    17:44.3. 

Shipments  within  a  state  as  part  of  inter- 
state or  foreign  transpor- 
tation.    17:643. 

Includes  transportation  and  intercourse. 
6:  579;*    13:  107. 

Natural  gas  as  a  subject  of  interstate  com- 
merce.   12:  652. 

Interstate  telegrams  as  interstate  commerce. 
24:  161. 

When   vessel  engaged  in.     2:  380.* 


COMMERCIAL  AGENCIES. 


487 


§  4.  Interierence  with;   state  power. 

Right  of  states  to  regulate  matters  inci- 
dentally affecting  com- 
merce.    5:  559.* 

Jurisdiction  of  United  States  court  when 
person  illegally  held  in 
custody  for  violation  of 
state  law.     10:  617.* 

Game  laws  as  affecting.     13:  804.* 

Peddlers  and  drummers  as  related  to  inter- 
state  commerce.    14:  97. 

Exclusion  of  foreign  corporations  as  a  re- 
striction upon.     24:  311. 

Right  of  state  to  regulate  occupation.  6: 
581.* 

Police  power  of  state.     5:  559;*    6:  580.* 

State  inspection  laws.     11:  180.* 

State  power  to  regulate  freights  and  fares. 
9:  754;*  11:  452.* 

As  to  State  Regulation  of  Freights  and 
Fares,  Generally,  see  Car- 
riers, IV.   §§",3-5. 

§  5.  —  Telegraphs  and  telephones. 

Interstate  telegrams  as  interstate  commerce. 
24:  161. 

Power  of  state  to  control  or  impose  burdens 
upon  interstate  telegraph 
and  telephone  companies. 
24:  161. 

State  statutes  imposing  license  fees  on 
telegraph  companies.  31 : 
808. 

Statutes  regulating  telephone  prices  and  re- 
quiring service  on  equal 
terms  to  all.    31 :  807. 

State  statutes  imposing  penalties  upon  tele- 
graph companies  for  fail- 
ure to  transmit  or  deliver 
messages  properly.  31: 
807. 

§  6.  —  Taxation. 

Whether  state  tax  violates  commerce  clause, 
as  a  Federal  question. 
62:  530. 

State  taxation  as  interference  with  inter- 
state commerce.  9:  366* 
11:  179.* 

State  taxes  or  penalties  as  affecting;  what 
includes;  right  of  car- 
riers to  land  passengers. 
13:  686.* 

Corporate  taxation  as  interference  with 
interstate  commerce.  60 : 
641. 

Liability  of  domestic  corporation  engaged 
in  interstate  commerce  to 
franchise    tax.     57:  79. 

Taxation  of  bridge  over  a  navigable  river 
as  regulation  of  inter- 
state commerce.     29:  71. 

Taxation  of  receipts  of  corporations  en- 
gaged in  interstate  or  for- 
eign  commerce.     57:  59. 

State  license  tax  as  interference  with.  9: 
366.* 

§  7.  —  Intoxicating  liquor. 

State  power  to  regulate  the  sale  of  imported 
liquor.  7:  183,*  296;*  9: 
366,*  780;*    10:  616.* 

State  tax  on  liquors  or  persons  engaged  in 
selling  liquor.     9:  782.* 
i;,.R.A.  Dig.— 32, 


Subjection  of  liquor  imported  in  original 
package  to  police  laws  of 
state.     10:  616;*    12:  624.* 

Validity  of  state  license  tax  imposed  on  im- 
porter.    11:  ISO.* 


COMMERCIAL  AGENCIES. 

Interstate  Business  of,  see  Comimerce,  152- 
163. 

Publication  Defeating  Common  Law  Copy- 
right, see  Copyright,  15. 

Damages  Against,  for  False  Publication  by, 
see  Damages,  290. 

Estoppel  by  Representations  to,  see  Estop- 
pel, 210. 

Opinion  Evidence  as  to  Meaning  of  Report 
of,  see  Evidence,  1372. 

Sales  on  Credit  in  Reliance  on  Statements 
by,  see  Fraud  and  Deceit,  50,  51. 

Libel  by,  see  Libel  and  Slander,  1,  2,  5,  53, 
118-122,  185. 

Notice  to,  of  Partnership  Dissolution,  see 
Partnership,  117. 

Creation  of,  see  Principal  and  Agent,  6. 

Question  for  Jury  as  to  Libel  by,  see  Trial, 
262. 

1.  A  mercantile  agency  is  not  liable  for 
damages  for  a  false  report  made  by  a  sub- 
agent  whose  employment  is  contemplated  by 
the  contract  of  subscription,  under  which  the 
agency  merely  agrees  to  transmit  the  infor- 
mation obtained  by  such  subagent,  where  it 
has  exercised  due  care  in  tbe  selection  of 
such  subagent,  since  the  latter  is  the  agent 
of  the  subscriber.  Dun  v.  City  Nat.  Bank, 
14  U.  S.  App.  695,  7  C.  C.  A.  152,  58  Fed. 
174,  23:687 

2.  A  mercantile  agency  which  agrees  to 
transmit  information  to  subscribers  who 
may  wish  to  contract  with  outside  parties, 
under  a,  condition  that  it  is  not  to  be  re- 
sponsible for  loss  by  the  negligence  of  sub- 
agents  and  in  no  manner  guarantors  the  ac- 
tual verity  or  correctness  of  the  information 
given,  is  not  liable  to  a  subscribing  bank  for 
loss  upon  commercial  paper  bought  by  it  in 
reliance  upon  information  furnished  by  one 
of  its  subagents  as  to  a  party  to  such  paper, 
although  such  agent,  being  connected  in 
business  with  such  party,  knowingly  gave 
false  information,  and  such  bank  purchased 
the  paper  in  reliance  thereon.  Id. 

3.  A  commercial  agency  is  not  exempted 
from  liability  for  gross  negligence  in  errone- 
ously giving  the  financial  standing  of  a  per- 
son in  consequence  of  a  typographical  error, 
by  a  provision  in  the  contract  that  the  com- 
pany shall  not  be  liable  for  any  loss  or  in- 
jury caused  by  the  neglect  or  other  act  of 
any  officer  or  agent  of  the  company  in  pro- 
curing, collecting,  and  communicating  said 
information,  and  that  such  company  does 
not  guarantee  the  correctness  of  said  infor- 
mation. Crew  v.  Bradstreet  Co.  134  Pa.  161. 
19  Atl.  500,  7:  661 

Editorial  Notes. 

Statements    of,    as    privileged    communica- 
tioQS.    2:  405, 


498 


COMMERCIAL  LAW- COMMITTEE. 


Reliance  on  fraudulent  statements  to,  37: 

613. 

Misrepresentations    to,  as    a    fraud    upon 

seller.  14:  264. 


COMMERCIAL  LAW. 

Effect  of  Decisions  on,  see  Courts,  474,  475, 

517,  518,  546-550. 
See  also  Common  Law,  2. 


COMMERCIAL  TRAVELERS. 

Editorial  Notee. 

Liability  to  license  tax.  3:  706.* 
Drummers    as    related    to    interstate    com- 
merce.   14:  97 
Sale  of  liquor  by  drummer  in  non-li- 
cense county.     4:  835.* 
Extent    of    authority    conferred    upon. 
18:  663. 


COMMISSION. 


Drain  Commission   for  County,   see  Drains 

and  Sewers,  1. 
See  also  Municipal  Corporation,  558,  559. 


COMMISSIONERS. 


Abatement  of  Suit  by  Board  of  Phosphate 
Commissioners,  see  Abatement  and  Re- 
vival, 30. 

Of  Alabama  Claims,  see  Alabama  Claims,  2. 

Affidavit  for  Appeal  from  Decision  of,  see 
Appeal  and  Error,  128. 

For  Determining  Truth  of  Allegations  in 
Bill  of  Exceptions,  Duty  of,  see  Appeal 
and  Error,  221. 

Time  to  Object  to  Report  of,  see  Appeal  and 
Error,  589. 

Review  of  Findings  of,  see  Appeal  and  Er- 
ror, 812. 

Delegation  to,  of  Hearing  in  Disbarment 
Proceeding,  see  Attorneys,  28. 

Certiorari  to,  see  Certiorari,  15,  43. 

Per  Diem  Fees  of,  see  Clerks,  9. 

Constitutional  Provision  as  to  Term  of,  see 
Constitutional  Law,  51. 

Usurpation  of  Judicial  Functions  by,  see 
Constitutional  Law,  260. 

Appointment  of  Police  Commissioners  as 
Violation  of  Right  of  Local  Self  Gov- 
ernment, see  Constitutional  Law,  286- 
296. 

Delegation  of  Power  to,  see  Constitutional 
Law,  I.  d,  4. 

Of  Court,  Legislative  Power  to  Appoint,  see 
Courts,  249-251. 

Of  County,  Deed  to,  see  Deeds,  52. 

To  Assign  Dower,  see  Dower.  61. 

Drainage  Commissioners,  see  Statutes.  216. 

Of  Roads,  see  Highways,  233,  413,  414. 


To  Set  Off  Homestead,  see  Homestead,  71, 
72. 

Board  of  Medical  Commissioners,  see  Medi- 
cal College. 

Of  Patents,  Mandamus  to,  see  Mandamus, 
57,  162. 

Character  of  Office  of  Park  Conunissioners, 
see  Officers,  4. 

Of  Police,  see  Officers,  40,  42,  88,  90;  Stat- 
utes, 108-111,  214,  215,  224. 

For  Public  Improvement,  see  Public  Im- 
provements, 133. 

Deposit  of  Public  Funds  by,  see  Public 
Moneys,    10. 

For  Erection  of  Soldiers'  Monument,  see 
Public  Moneys,  70. 

Exception  to  Report  of,  see  Reference,  9. 

For  Town,  in  Issuing  Railroad  Aid  Bonds, 
see  Towns,  25. 

See  also  Railroad  Commissioners. 

The  supreme  court  of  Indiana  cannot  per- 
form its  judicial  duties  through  the  medium 
of  masters  in  chancery,  or  master  commis- 
sioners, or  persons  charged  with  duties  like 
those  performed  by  such  masters  and  com- 
missioners. State  ex  rel.  Hovey  v.  Noble, 
118  Ind.  350,  21  N.  E.  244,  4:  101 

Editorial  Notes. 

Of  sewers,  right  of  woman  to  be.     38:  211. 


COMMISSION  MERCHANT. 


See  Factors. 


COMMISSIONS. 


Of  Brokers,  see  Brokers,  11.  b. 

Delegation  of  Power  as  to,  see  Constitution- 
al Law,  170. 

When  Constitutionality  of,  will  be  Consid- 
ered, see  Courts,  503. 

Of  Personal  Representatives,  see  Executors 
and  Administrators,  IV.  c.  2. 

Injunction  against,  see  Injunction,  312,  313. 

Of  Officers,  see  Congress,  2;  Officers,  57,  58. 


■♦♦»■ 


COMMITMENT. 

Fee  of  Clerk  for,  see  Clerks,  16. 
For  Contempt,  see  Contempt,  60. 
Change   of,   as  to   Place   of   Imprisonment, 

see  Criminal  Law,  237. 
To  Reform  School,  see  House  of  Correction. 
To    Asylum,    Conclusiveness    of    Order,    see 

Incompetent  Persons,  8. 
As  to  Imprisonment  Generally,  see  Criminal 

Law,  rV. 


COMMITTEE. 


Delegation  of  Power  to,  see  Constitutional 

Law,  I.  d,  4. 
Ratification    of    Act    of,    see    Corporations, 

245. 


COMMODITIES— COMMON  LAW. 


499 


Act  by  Majority  of,  see  Corijorations,  248. 

Of  Political  Party,  see  Courts,  93,  94;  Elec- 
tions, III. 

Of  Incompetent  Persons,  see  Incompetent 
Persons,  VI. 

Of  Legislature,  see  Contempt,  43;  Corpo- 
rations, 85;   Legislature,   13-15. 

Of  Aldermen,  see  Libel  and  Slander,  133- 
135;  Municipal  Corporations,  71. 


COMMODITIES. 

What  are,  see  Taxes,  562. 


COMMON. 

1.  A  speech  on  a  common  addressed  to  aB 
persons  who  choose  to  draw  near  and  listen, 
whether  it  is  a  lecture,  polilical  discourse, 
or  sermon,  is  a  "public  aadress"  within  the 
prohibition  of  an  ordinance  against  such  an 
address  on  public  grounds.  Com.  v.  Davis, 
162  Mass.  510,  39  N.  E.  113,  28:  712 

2.  A  bond  securing  to  the  inhabitants  of  a 
town  the  right  to  take  sand,  gravel,  sea- 
weed, drift  stuflf,  etc.,  from  a  certain  beach, 
does  not  give  them  the  right  to  take  it  for 
use  or  sale  in  any  other  town.  Middletown 
V.  Newport  Hospital,  16  R.  I.  319,  15  Atl. 
800,  I:  191 


COMMON  CARRIER. 
See  Carriers. 


COMMON  ERROR. 


Question  for  Jury  as  to  Existence  of,  see 
Trial,  494. 
A  common  error  having  the  force  of  law 
is  not  shown  by  the  fact  that  33  per  cent 
of  the  mining  locations  of  one  county  in  a 
vast  territory  during  about  two  years  used 
a  form  of  verification  for  location  notice, 
which  was  fatally  defective  under  a  law  of 
Congress  by  reason  of  omitting  to  state  the 
date  of  the  location,  where  it  does  not  shovz 
that  any  considerable  number  of  persons 
have  relied  upon  or  sought  to  fix  their  rights 
upon,  the  alleged  common  error,  or  that 
large  property  interests  depend  upon  up- 
holding such  notice.  O'Donnell  v.  Glenn,  9 
Mont.  452,  23  Pac.  1018,  8:  629 

Editorial  Notes. 

May  pass  for  right.    8:  629.* 


COMMON  LAW. 


Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
6,  24,  25. 

As  to  Oral  Contract  for  Land,  see  Con- 
tracts, 164. 


As  to  Parol  Modifixjation  of  Sealed  Instru- 
ment, see  Contracts,  756. 

As  to  Right  to  Inspect  Corporate  Books, 
see  Corporations,  507,  513. 

Rules  Followed  in  Determining  What  is,  see 
Courts,  525. 

As  to  Default  on  Indictment,  see  Criminal 
Law,   188. 

As  to  Cumulative  Sentences,  see  Criminal 
Law,  227. 

As  to  Inheritance  through  Alien,  see  De- 
scent and  Distribution,  23,  24. 

As  to  Inheritance  by  Illegitimates,  see  De- 
scent and  Distribution,  31. 

Authority  to  Order  Physical  Inspection  as, 
see  Discovery  and  Inspection,  18,  19. 

Remedy  by,  as  Affected  by  Statute,  see 
Election  of  Remedies,  8,  14. 

Equity  as  Part  of,  see  Equity,  1. 

Presumption  as  to,  see  Evidence,  178-185, 
189,  190. 

Right  to  Common  Law  Jury,  see  Jury,  1,  2. 

As  to  Estovers,  see  Landlord  and  Tenant, 
129. 

Common  Law  Lien,  see  Liens,  2-4. 

Common  Law  Marriage,  see  Marriage,  n.  b. 

As  to  Bequest  for  Masses,  see  Masses,  3. 

As  to  Parent's  Right  of  Action  for  Daugh- 
ter's Seduction,  see  Seduction,  4. 

As  to  Sunday  Labor,  see  Sunday,  8. 

As  to  Riparian  Rights,  see  Waters,  220-224, 
230,  302,  306,  307,  323,  454-456. 

As  to  Surface  Waters,  see  Waters,  392. 

As  to  Revocation  of  Will  by  Marriage,  see 
Wills,  71,  72. 

As  to  Exemption  from  Arrest,  see  Writ  and 
Process,  59. 

1.  The  common  law  is  simply  the  "right 
reason  of  the  thing"  in  matters  as  to  which 
there  is  no  statutory  enactment.  Wilson  v. 
Leary,  120  N.  C.  90,' 26  S.  E.  630,       38:  240 

2.  There  is  no  such  thing  as  a  general 
commercial  or  a  general  common  law  sep- 
arate from,  and  irrespective  of,  the  particu- 
lar state  or  government  whose  authority 
makes  it  law.  Forepaugh  v.  Delaware,  L. 
&  W.  R.  Co.  128  Pa.  217,  18  Atl.  503,  5:  508 
Of  nation. 

See  also  infra,  Editorial  Notes. 

3.  There  is  no  national  common  law.  Gat- 
ton  V.  Chicago,  R.  I.  &  P.  R.  Co.  96  Iowa, 
112,  63  N.  W.  589,  28:  556 

4.  There  is  no  common  law  of  the  United 
States  except,  possibly,  as  the  common  law 
of  England  has  been  adopted  with  refer- 
ence to  the  construction  of  powers  granted 
to  the  Federal  Union.  Hudson  Furniture 
Co.  V.  Harding,  34  U.  S.  App.  148,  17  C.  C. 
A.  203,  70  Fed.  468,  30:  513 

5.  Resort  may  be  had  to  the  common  law 
to  determine  the  validity  of  a  contract  for 
interstate  carriage,  in  the  absence  of  any 
contrary  legislation  by  Congress.  Davis  v. 
Chicago,  M.  &  St.  P.  R.  Co.  93  Wis.  470, 
67  N.  W.  16,  33:  654 
Of  state: 

Rule  in  Shelley's  Case  as  Part  of,  see  Real 

i-roperty,  37,  38. 
See  also  infra,  Editorial  Notes. 

6.  The  common  law  of  one  of  the  United 
States  includes  the  long  recognized  judicial 


600 


COMMON  LAW. 


practice  of  that  state,  whether  it  was  ever 
known  in  England  or  not.  Com.  v.  Lehigh 
Valley  R.  Co.  165  Pa.  162,  30  Atl.  836, 

27:  231 

7.  The  practice  of  rendering  judgment  by 
default  on  defendant's  failure  to  appear, 
which  apparently  originated  in  usage,  has 
been  sanctioned  by  frequent  statutory  rec- 
ognition, and  has  been  extended  in  its  op- 
eration from  time  to  time  by  judicial  appli- 
cation, must  be  recognized  as  part  of  the 
common  law  of  Pennsylvania.  Id 

8.  The  fundamental  principles  of  right 
and  justice  on  which  the  common  law  is 
founded,  and  which  its  administration  is 
intended  to  promote,  require  that  a  dif- 
ferent rule  should  be  adopted  whenever  it 
is  found  that,  owing  to  the  physical  features 
and  character  of  a  state,  and  the  peculiar- 
ities of  its  climate,  soil,  and  products,  the 
application  of  a  given  common-law  rule 
tends  constantly  to  cause  injustice  and 
wrong,  rather  than  the  administration  of 
justice  and  right.  Katz  v.  Walkinshaw,  141 
Cal.  116,  70  Pac.  663,  74  Pac.  766,  64:  236 
Adoption  from  England. 

See  also  infra.  Editorial  Notes. 

9.  The  common  law  of  England,  though 
adopted  and  accepted  as  the  law  of  the 
state  and  though  unchanged  by  statute,  is 
not  under  all  ciroumstances  and  conditions 
to  be  applied  as  the  local  common  law. 
Kansas  City,  M.  &  B.  R.  Co.  v.  Smith,  72 
Miss.  677,  17  So.  78,  27:  762 

10.  The  term  "common  law  of  England," 
as  used  in  Neb.  Comp.  Stat.  1901,  chap.  15a, 
which  makes  the  common  law  of  England 
the  rule  of  decision  in  all  cases  not  gov- 
erned by  constitution  or  statutes,  so  far  as 
applicable,  refers  to  that  general  system  of 
law  which  prevails  in  England,  and  in  most 
of  the  United  States  by  derivation  from 
England,  as  distinguished  from  the  Roman 
or  civil-law  system,  and  hence,  the  statute 
does  not  require  adherence  to  the  decisions 
of  the  English  common-law  courts  prior  to 
the  Revolution  in  case  the  court  considers 
subsequent  decisions,  either  in  England  or 
America,  better  expositions  of  the  general 
principles  of  that  system.  Williams  v. 
Miles,  68  Neb.  463,  94  N.  W.  705.  62:  383 

11.  Nev.  Gen.  Stat.  3021,  adopting  "the 
common  law  of  England  so  far  as  it  is  not 
repugnant  to  or  in  conflict  with  the  Consti- 
tution and  laws  of  the  United  States,  or 
the  Constitution  and  laws"  ol-  that  .state, 
adopts  only  so  much  of  the  common  law  as 
is  applicable  to  the  condition  of  that  state. 
Reno  Smelting,  M.  &  R.  Works  v.  Steven- 
son, 20  Nev.  269,  21  Pac.  317,  4:  60 

12.  The  power  of  the  courts  to  declare 
established  doctrines  of  the  common  law 
inapplicable  to  the  state  of  Nebraska  should 
be  used  sparingly,  and  its  exercise  is  not 
justified  unless  the  inapplicability  of  a  rule 
is  general,  extending  to  the  whole  or  a 
greater  part  of  the  state,  or  at  least  to  an 
area  capable  of  definite  judicial  ascertain- 
ment. Meng  V.  Coffey,  67  Neb.  500,  93  N. 
W.  713,  60:  910 

13.  The  common  law  of  England  at  the 
time  of  its  adoption  by  Wyoming  had  no 


relation  to  the  master's  liability  for  injuries 
to  his  servants  and  decisions  by  the  Engl'ish 
courts  subsequently  rendered  are  not  bind- 
ing in  determining  the  question  of  the  liabil- 
ity of  the  master  for  injuries  occurring 
within  that  state.  Johnson  v.  Union  P.  Coal 
Co.  28  Utah,  500,  76  Pac.  1089,  67 :  506 

14.  The  term  "common  law  of  England," 
as  used  in  a  statute  adopting  such  law  as  a 
rule  of  decision  in  a  state,  does  not  include 
judicial  decisions  of  English  courts  rendered 
subsequently  to  the  independence  of  Amer- 
ica. Id. 

15.  In  ascertaining  the  rules  of  the  com- 
naon  law  the  court  may  look  to  the  de- 
cisions of  other  states  of  the  Union  as  well 
as  to  those  of  the  English  courts.  Seymour 
V.  McAvoy,  121  Cal.  438,  53  Pac.  946,  41 :  544 

16.  A  statutory  adoption  of  the  common 
law  of  England,  so  far  as  applicable  and  of 
a  general  nature  and  not  in  conflict  with 
special  enactments,  does  not  preclude  the 
consideration  of  the  expositions  of  the  com- 
mon law  by  judicial  authorities  of  our  own 
country  in  determining  what  the  common 
law  is.  Leyson  v.  Davis,  17  Mont.  220,  42 
Pac.  775,  31 :  429 
[Writ  of  Error  Dismissed  by  the  Supreme 
Court  of  the  United  States  in  170  U.  S.  36, 
42  L.  ed.  939,  18  Sup.  Ct.  Rep.  500.] 

17.  The  adoption  by  statute  of  the  com- 
mon law  of  England  as  it  existed  prior  to 
the  4th  year  of  James  I.  does  not  prevent 
the  consideration  of  decisions  rendered  sub- 
sequently to  that  time  for  the  purpose  of 
determining  what  the  common  law  was. 
Chilcott  V.  Hart,  23  Colo.  40,  45  Pac.  391, 

35:  41 

18.  The  common  law  was  brought  into 
Oklahoma  by  the  settlers  on  April  22,  1889, 
unless  it  had  already  been  established  there 
by  the  act  of  Congress  of  March  1,  1889,  es- 
tablishing a  district  court  of  the  United 
States  in  the  Indian  territory.  McKennon 
V.  Winn,  1  Okla.  327,  33  Pac.  682,      22:  501 

19.  The  legislative  adoption  of  so  much  of 
the  common  law  as  is  applicable  to  the  con- 
dition of  the  state  of  Washington  does  not 
include  vendor's  liens.  Smith  v.  Allen,  18 
Wash.  1,  50  Pac.  783,  39:  82 

20.  The  Hilary  rules  of  pleading  are  not 
in  force  in  Mississippi.  Alliance  Trust  Co. 
V.  Nettleton  Hardwood  Co.  74  Miss.  584,  21 
Si).  396,  36:  155 
Revival. 

21.  The  repeal  of  a  statute  which  abro- 
gated a  common-law  rule  revives  that  rule. 
Beavan  v.  Went,  155  HI.  592,  41  N.  E.  91, 

31:  85 
Editorial  Notes. 

Of  United  States.     5:  508.» 
Incorporation  of  common-law   principles  in 
constitutional       law ;      2 : 
655.' 
Adoption  of  the  common  law  in  the  United 
States.     22:601. 
Effect  of  English  decisions.     22:  502. 
Constitutional    and   statutory   adoption 
of   common   law.    22:  503. 
What     constitutes     the     common     law 
adopted.     22:  503. 


COMMON  PLEAS— COMPETITION. 


501 


Adoption    in    particular    matters.    22: 

604. 
As  to  remedies.     22:  504. 
Limitation  of  the  adoption.     22:  505. 
In  United  States  courts  and  territories. 

22:  506. 
In  criminal  matters.     22:  507. 
Adoption  of  British  statutes.     22:  508. 
Particular   illustrations.     22:  509. 
Repeal  of  English  statutes.     22:  511. 
When    rules    of    common     law    differently 
interpreted      in      different 
states.     56:219. 
Presumption   as   to   common   law   of  other 

state.     21:472. 
Jurisdictions    with    respect    to    which    pre- 
sumption in  favor  of  com- 
mon law  may  be  indulged. 
67 :  40. 
Conflict  between   presumption   in    favor  of 
common  law  and  presump- 
tion that  law  *of  other  ju- 
risdiction  is   the  same  as 
that  of  the  forura.     67:41. 
Common-law  right  of  action  of  parent  for 
loss    of    services    of   child 
killed.     41:807. 


COMMON  PLEAS. 

Jurisdiction  of,  see  Courts,  259. 
■     ♦■•-♦ 


COMMON  SCHOOLS. 


See  Schools. 


#•» 


COMMON  SCOLD. 

Editorial  Notes. 
Cruel  and  unusual  punishment  of.     35:  571. 

»  •  » 

COMMUNE. 
Charitable  Legacy  to,  see  .Charities,  35. 


COMMUNITY. 


Property  Rights  of,  see  Associations,  16,  17. 
Withdrawal  or  Expulsion  of  Member  from, 
see  Associations,  22,  23. 


^•» 


COMMUNITY  PROPERTY. 
See  Husband  and  Wife,  II.  c. 
♦  •» 
COMMUTATION. 
Of  Tax,  see  Taxes,  62. 


COMMUTATION   BOOK. 
See  Carriers,  596. 


COMMUTATION  MONEY. 
Tax  for  payment  of,  see  Taxes,  86. 
«-»-# 

COMPARATIVE  NEGLIGENCE. 

Negligence,  see  Negligence,  189-191. 


COMPARISON. 


Of  Hand  Writing  Generally,  see  Evidence, 

825-827,  2128;  Jury,  70,  71. 
By  Experts,  see  Evidence,  VII.  m. 
Admissibility  of  Writings  for  the  Purpose 

of,  see  Evidence,  IV.  p. 


COMPENSATION. 


Of  Arbitrators,  see  Arbitration,  17,  22. 

Of  Attorney,  see  Attorneys,  II.  c. 

Of  Corporate  Officers,  see  Corporations,  IV. 
g.  3. 

Of  District  Attorney,  see  District  and  Prose- 
cuting Attorneys,  5,  6. 

Of  Executor  or  Administrator,  see  Executors 
and  Administrators,  IV.  c.  2. 

Of  Guardian  Ad  Litem,  see  Infants,  65,  69, 
104. 

Of  Judge,  see  Judges,  V. 

Of  Employee,  see  Master  and  Servant,  I.  c. 

Of  Officer  Generally,  see  Officers,  II.  b. 

Of  De  Facto  Officer,  see  Officers,  226-228. 

Of  Teacher,  see  Schools,  II.  b. 

Of  Trustee,  see  Trusts,  172,  173. 

For  Taking  of  Property,  see  Eminent  Do- 
main, III.  c. 

For  Property  Destroyed  to  Protect  Health, 
see  Health,  FV. 

For  Driving  Logs,  see  Logs  and  Logging, 
2-4. 


COMPETING  RAILROADS. 

Illegal  Consolidation  of,  see  Conspiracy,  174- 

177. 
Judicial  Notice  as  to,  see  Evidence,  81. 


COMPETITION. 


Contract   to   Restrain,  see  Conspiracy,  U.; 

Contracts,   III.   e. 
Lawfulness  of,  see  Conspiracy,  20,  32. 
Contract    by    Corporation    to   Buy   Off,   see 

Corporations,   142-144. 
Injunction  against  Combination  to  Prevent, 

see  Injunction,  131-152. 


502 


COMPILATION— COMPROMISE  AND  SETTLEMENT. 

COMPOUNDING  CRIME. 


For  Street  Paving  Contract,  see  Public  Im- 
provements,  17-18b. 

Editorial  Notes. 

Injunction    against    unfair    competition    in 
business.    3:  771.* 

♦-•-♦ 


COMPILATION. 

Editorial  Notes. 

Of  laws,   power  of  legislature  to   enact   or 
amend  by  single  statute. 
55:  833. 

^*» 

COMPILER. 

Editorial  Notes. 

Common-law  right  of  compiler  of  literary 
materials.     51:  358. 


COMPLAINT. 


Necessity  of,  in  Contempt  Proceedings,  see 

Contempt,  66. 
Necessity  of,  in  Extradition  Proceedings,  see 

Extradition,  5. 
In  Criminal  Prosecution,  see  Indictment,  etc. 
Of  Plaintiff,  see  Pleading,  IL 


COMPOSITION  WITH  CREDITORS. 

Right    to    Money    Received    in    Accordance 
with,  see  Assumpsit,  21. 

A  composition  for  creditors  is  not  made 
entirely  void  so  as  to  defeat  a  recovery  on 
notes  given  in  furtherance  thereof,  merely 
because  of  a  secret  agreement  giving  to  the 
holder  of  them  a  preference  by  way  of  se- 
curity for  other  notes  given  him  under  the 
composition.  Hanover  Nat.  Bank  v.  Blake, 
142  N.  Y.  404,  32  N.  E.  519,  27:  33 

Editorial  Notes. 

Validity   of,  generally.     20:  802. 
New  promise  after  discharge  by.     53:  363. 
EflFect   of  giving   one  creditor  a   secret   ad- 
vantage in  a  composition. 
27:33.' 

Effect  on  the  composition.     27:  33. 

Action  on  original  claims.     27:  35. 

Contracts  to  induce  assent  to  a  com- 
position.    27:  36. 

Action  for  balance.     27:  38. 

Reservation  of  part  of  the  original 
claim  from  the  composi- 
tion.    27:38. 

Liability  of  creditor  on  obtaining  a 
fraudulent  preference.  27: 
39. 

Composition  not  general.     27:  39. 


Validity   of  Note  Given   for,  see  Bills   and 

Notes,  23,  210. 
Illegality    of    Contract    for,    see    Contracts, 

448-451,  641,  642. 
Evidence   of  Agreement   for,   see   Evidence, 

2026. 
Privilege  as  Witness  of  One  Charged  with, 

see  Witnesses,  136. 

Editorial  Notes. 

As  ground  of  injunction  against  judgments 
by  confession.     30:' 240. 

Injunction  against  enforcing  contracts  for. 
48:  848. 

EflFect  of  award  founded  upon.     58:  182. 


COMPOUNDING  MEDICINES. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 106. 


COMPOUND  INTEREST. 
See  Interest,  III. 


COMPRESS  COMPANY. 

Breach  of  Agreement  by,  to  Procure  Insur- 
ance, see  Contracts,  732,  748-750. 


COMPRESSED   AIR. 


Injury  to  Employee  by  Use  of,  see  Master 
and  Servant,  133. 


COMPROMISE  AND  SETTLEMENT. 

Of  Suit,  see  Attorneys,  54-57;  Bills  and 
Notes,  277;  Evidence,  1227;  Insurance, 
1267,  1268. 

By  Assignee  for  Creditors,  see  Assignments 
for  Creditors,  29,  and  also  infra.  Edi- 
torial Notes. 

As  Affecting  Assignment  for  Creditors,  see 
Assignments  for  Creditors,  76. 

Illegality  of  Contract  to  Prevent,  see  Con- 
tracts, 403. 

By  Common  Council,  Court's  Power  to  Re- 
view, see  Courts,  182. 

Authority  to  Compromise  Claim  for  Death, 
see  iOeath,  V.  and  also  infra.  Editorial 
Notes. 

Attempt  to  Make,  as  Admission  of  Liability, 
see  Evidence,  1458. 

Privilege  as  to  Evidence  of,  see  Evidence, 
1484,  1500. 

By  Executor,  see  Executors  and  Administra- 
tors, 48,  and  also  infra,  Editorial  Notes. 

By  Guardian,  see  (iuardian  and  Ward,  5, 
and  also  infra.  Editorial  Notes. 


COMPROMISE  AND  SETTLEMENT. 


503 


Of  Claim  for  Insurance  where  Insured  has 
Disappeared,  see  Insurance,  1235. 

Settlement  between  Partners,  see  Partner- 
ship, 102-115,   132-135. 

See  also  Accord  and  Satisfaction;  Compo- 
sition with  Creditors. 

1.  The  mere  fact  that  there  was  a  settle- 
ment between  a  debtor  and  creditor  which 
included  the  amount  of  a  secured  claim  will 
not  justify  a  finding  that  the  settlement 
was  in  discharge  of  such  claim,  where  there 
is  nothing  to  show  that  the  settlement  was 
accepted  in  satisfaction  thereof.  Coleman 
V.  Whitney,  62  Vt.  123,  20  Atl.  322,  9:  517 
What  is  a  proper  subject  of. 

See  also  infra,  Editorial  Notes. 

2.  An  honest  belief  of  both  parties  that 
a  claim  is  doubtful  makes  it  a  proper  sub- 
ject of  compromise,  even  if  there  is  a  certain 
defense  to  it.  Smith  v.  Farra,  21  Or.  395, 
28  Pac.  241,     ,  ^         20:  115 

3.  A  controversy  between  two  persons, 
actually  and  in  good  faith  existing,  is  a 
proper  subject  for  a  binding  contract  of 
settlement,  no  matter  what  may  be  the 
real  merits  of  the  claim  on  either  side. 
Galusha  v.  Sherman,  105  Wis.  263,  81  N. 
W.  495,  47:417 
Consideration  for. 

4.  Abandonment  of  legal  proceedings 
which  are  without  merit  is  no  consideration 
for  the  revocation  of  a  valid  and  binding 
contract.  Lukens's  Appeal,  143  Pa.  386,  22 
Atl.  892,  13:581 

5.  The  settlement  of  a  dispute  between 
the  owners  of  cross  veins,  who  are  ignorant 
of  their  legal  rights,  if  entered  into  in  good 
faith,  is  a  sufficient  consideration  to  support 
a  voluntary  agreement  for  the  amicable 
adjustment  of  the  controversy.  CoflFey  v. 
Emigh,  15  Colo.  184,  25  Pac.  83,  10:  125 

6.  In  case  of  a  dispute  as  to  whether  a 
partnership  has  previously  existed  between 
the  parties,  an  agreement  by  the  one  claim- 
ing that  it  did  exist,  and  that  he  is  entitled 
to  share  in  the  profits,  that,  in  consideration 
of  being  credited  with  a  given  sum  and  of 
his  being  a  partner  in  future,  he  will  waive 
the  claim  of  previous  partnership,  is  sup- 
ported by  a  valid  consideration.  Wahl  v. 
Bamum,  116  N.  Y.  87,  22  N.  E.  280,       5:  623 

7.  There  is  sufficient  consideration  for  a 
contract  to  settle  litigation  between  corpora- 
tions, under  a  patent  which  both  parties 
suppose  to  be,  but  which  is  not  in  fact, 
valid, — especially  where  the  contract  in- 
cludes mutual  covenants  as  to -the  conduct 
of  their  business,  and  is  partly  executed 
before  the  invalidity  of  the  patent  is  dis- 
covered. Gloucester  Isinglass  &  G.  Co.  v. 
Russia  Cement  Co.  154  Mass.  92,  27  N.  E. 
1005,  12:563 

8.  An  agreement  to  reduce  the  rent,  made 
with  a  tenant  holding  over  after  expiration 
of  a  lease  for  one  year  payable  monthly,  and 
after  payment  and  acceptance  of  one  ad- 
ditional month's  rent,  is  \vithout  consider- 
ation, and  will  not  pre\ent  recovery  of  the 
balance  of  the  monthly  rent  specified  in  the 
lease,    even    after    several    years'    further 


occupancy  with  payment  at  the  reduced 
rate.  Goldsbrough  v.  Gable,  140  111.  269,  29 
N.  E.  722,  15:  294 

9.  An  agreement  between  all  the  next  of 
kin  of  one  who  died  a  member  of  a  benefit 
society,  before  anyone  knew  in  whose  favor 
the  certificate  was  made  payable,  that  the 
fund  should  be  collected  by  the  adminis- 
trator and  divided  equally  among  them,  is 
sufficiently  supported  by  consideration  in 
the  mutual  surrender  by  each  of  the  chance 
to  receive  a  larger  share,  and  will  be  binding 
on  the  one  who  proves  to  be  the  beneficiary 
named.  Supreme  Assembly  R.  S.  of  G.  F. 
V.  Campbell,  17  R.  I.  402,  22  Atl.  307,  13:  601 

10.  An  agreement  of  the  owner  of  stolen 
property  to  permit  a  bona  fide  purchaser  to 
retain  a  part  of  it  if  he  will  surrender  the 
remainder  is  without  consideration,  and  will 
not  defeat  his  right  to  recover  the  other 
part  after  the  first  portion  has  been  surren- 
dered. Morgan  v.  Hodges,  89  Mich.  404,  50 
X.  W.  876,  15:  438 

11.  An  allegation  that  a  corporation 
"merely  protested"  against  the  use  of  a  cer- 
tain name  by  another  corporation,  where  the 
latter,  upon  being  remonstrated  with  for 
using  that  name,  promised  not  to  manufac- 
ture certain  articles,  shows  no  consideration 
for  such  promise.  Converse  v.  Hood,  149 
Mass.  471,  21  N.  E.  878,  4:  621 
As  consideration  for  promise, 

12.  A  settlement  of  a  disputed  claim  pre- 
ferred in  good  faith  by  a  promisee  against  a 
promisor  is,  in  the  absence  of  fraud  or 
duress,  a  legal  consideration  for  tlie  prom- 
ise; and  the  fact  that  the  promisor  had  a 
legal  defense  to  the  claim  settled  is  no  de- 
fense to  an  action  on  the  new  promise. 
Wahl  V.  Bamum,  116  N.  Y.  87,  22  N.  E. 
280,  5:623 
Validity;  when  binding. 

Of  Attorney  with  Client,  see  Attorneys,  47. 
Fraud  Avoiding,  see  Fraud  and  Deceit,  14. 
Between  Husband  and  Wife,   see  Husband 
and  Wife,  112. 

13.  A  settlement  of  a  real  controversy, 
when  free  from  mutual  mistake  of  fact  or 
mistake  upon  one  side  and  fraud  upon  the 
other,  is  binding  upon  the  parties  thereto, 
without  regard  to  which  gets  the  best  of  the 
bargain,  or  whether  all  the  gain  be  in  fact 
on  one  side  and  all  the  sacrifice  on  the 
other.  Galusha  v.  Sherman,  105  Wis.  263, 
81  N.  W.  495,  47:417 

14.  Where  a  party  competent  to  act  makes 
a  settlement  by  which  he  allows  his  surety 
50  cents  on  the  dollar  for  what  he  has  paid 
for  him  in  checks  and  deposits  on  a  bank,  he 
cannot  afterwards  repudiate  the  agreement 
merely  because  such  checks  and  deposits 
were  not  actuallv  worth  the  sum  allowed. 
Southall  V.  Parish,  85  Va.  403,  7  S.  E.  534, 

1:  641 

15.  Settlement  out  of  court  after  an  ac- 
tion is  brought,  if  made  without  the  knowl- 
edge or  consent  of  the  attorney  for  the 
plaintiff,  is  to  be  viewed  with  suspicion, — 
especially  if  the  defendant  knew  of  a  con- 
tract giving  the  attorney  supervisory  control 


504 


COMPROMISE  VERDICT— COMPULSORY  SERVICE. 


over    the    distribution    of    the    collection. 
Falconio  v.  Larsen,  31  Or.  137,  48  Pac.  703, 

37:254 

16.  A  final  settlement  by  a  county  with 
its  treasurer  for  moneys  due,  for  which  he  is 
in  default,  after  the  expiration  of  his  term 
of  office,  without  any  payment  of  interest 
thereon,  will  preclude  the  county  from 
thereafter  recovering  such  interest  as  a  mere 
incident  of  the  debt,  without  any  agreement 
therefor,  although  he  has  received  interest 
on  the  money  from  a  bank  in  which  he 
deposited  the  funds  while  in  office,  without 
any  agreement  for  interest.  Maloy  v. 
Bernalillo  County  Comrs.  10  N.  M.  638,  62 
Pac.  1106,  52:  126 

17.  The  failure  to  cancel  and  surrender  a 
note  on  receiving  another  in  settlement 
therefor  does  not  prevent  the  new  note  from 
taking  effect  when  delivered.  French  v. 
French,  84  Iowa,  655,  51  N.  W.  145,  15:  300 
Relief  from. 

Avoiding  Payment  of  Check,  see  Banks,  130. 

18.  Relief  from  a  settlement  and  compro- 
mise of  a  claim  for  insurance  will  be  grant- 
ed where  the  insured  acted  without  any  real 
consideration,  in  ignorance  of  the  rights  and 
obligations  of  the  parties,  while  the  insurer 
had  full  knowledge  thereof  and  of  his  igno- 
rance, and  induced  him  to  act  by  false  and 
fraudulent  misrepresentations,  although  his 
mistake  was  in  respect  to  his  legal  rights 
Titus  V.  Rochester  German  Ins.  Co.  97  Ky. 
567,  31  S.  W.  127,  28:478 

Editorial  Notes. 

Favored  by  courts.     13:  601.* 
Must    a    claim    be    doubtful    to    sustain    a 
compromise.     15:  438. 
Claims  not   in   litigation.     15:  438. 
When  legal  rights  of  parties  are  clear. 

15:438. 
Existence  of  controversy  only.     15:  438. 
Good  faith  of  parties.     15:  439. 
Suits  threatened  and  pendinof.     15:  440. 
Power  of  guardian  to  compromise  or  settle 

claims  of  ward.     1:  305.* 
By    personal    representative    of    claim    due 

estate.     14:  414. 

Power   of   president   and   vice   president   of 

corporation  to  compromise 

or  settle   claims.     14:  359. 

Of  action  for  death,  who  may  make.     21: 

158. 
By  assignee  for  creditors.     23:  578. 
Effect  of  mistake  of  party.     50:  204. 
Validity   of  contract  between  husband  and 
wife  to  compromise  pend- 
ing   or    contemplated    di- 
vorce suit.     60:  406. 


COMPROMISE  VERDICT. 

As  Ground  for  New  Trial,  see  New  Trial,  36, 
49,  81,  82. 


COMPTROLLER. 


COMPULSORY  ARBITRATION. 

Provision  for,  in  Street  Railway  Franchise, 
see  Municipal  Corporations,  249. 

♦*-♦ 


COMPULSORY  EDUCATION. 

As  Infringing  Parental  Rights,  see  Parent 

and  Child,  1. 
Title  of  Statute  as  to,  see  Statutes,   166, 

247. 
See  also  Courts,  124;  Schools,  9,  10. 


COMPULSORY  REFERENCE. 

See  Reference,  4,  5. 

Editorial  Notes. 

As  a  denial  of  constitutional  right  to  trial 
by  jury.     25:  68. 


Of  Currency,   see   Banks,    19;   20,   307,   332; 
Corporations,  723,  766. 


COMPULSORY   SERVICE. 

By  Carrier,  see  Carriers,  III.  b. 

By    Electric    Light    Company,    see    Electric 

Lights,  7,  8. 
By  Exchange  or  Board  of  Trade,  see  Ex- 
changes, 2-5. 
By  Gas  Company,  see  Gas,  H. 
By    Press    Association,    see   Newspaper,   4; 

Press  Associations,  3. 
By    Street    Railway    Company,    see    Street 

Railways,  80-84. 
By  Telegraph  Company,  see  Telegraphs,  II. 

a.   1. 
By  Telephone  Company,  see  Telephones,  6, 

8-16. 
By  Warehousemen,  see  Warehousemen. 
Of  Ferry,  see  Ferry,  22-26. 
Of  Water  Supply,  see  Waters,  III.  b.  2. 
Due  Process  as  to,  see  Constitutional  Law, 

628. 
Punitive  Damages  for  Refusal  of  Telephone 

Service,  see  Damages,  50. 
Mandamus  to  Compel,  see  Mandamus,  93-98, 

105-114. 

1.  Persons  or  corporations  enjoying  pub- 
lic franchises  and  engaged  in  public  employ- 
ment owe  a  duty  to  the  public,  as  well  as 
to  all  individuals  of  the  public  who  in  com- 
pliance with  established  customs  or  rules 
make  demands  for  the  beneficial  use  of  the 
privileges  and  advantages  due  to  the  public 
by  reason  of  the  aid  so  given  by  public  au- 
thority. Coy  V.  Indianapolis  Gas  Co.  146 
Ind.  655,  46  N.  E.  17,  20,  36:  535 

2.  An  action  for  damages  cannot  be  main- 
trained  against  members  of  an  undertakers' 
association  for  refusal  to  furnish  materials 
or  render  services  at  a  funeral  for  one  who 
has  refused  or  failed  to  pay  for  such  services 
previously  rendered  by  some  member  of  the 
association.  Brewster  v.  C.  Miller's  Sons, 
101  Ky.  368,  41  S.  W.  301,  38:  506 

3.  One  has   the  right  to  decline  to  enter 


COMP  DLSORY  VACCINATION— CONDITION. 


605 


into  a  business  undertaking  with  another 
person,  and  any  number  of  persons  can  en- 
ter into  an  agreement  by  which  they  can  de- 
cline to  assume  business  relations  with  or 
enter  into  any  contract  with  one  or  more 
persons.  Id. 

Editorial  Notes. 

By  party  whose  business  it  is  to  serve  the 
public.     15:321. 
Common  carriers.     15:  321. 
Innkeepers.     15:  321. 
Telephone    companies.     15:  321. 
Telegraph   companies.     15:  322. 
Board  of  trade.     15:  322. 
Gas  companies.     15:  322. 
Water  companies.     15:  322. 
Log  driving  company.     15:  322. 


COMPULSORY  VACCINATION. 
See  Health,  19-27;  Schools,  14-27. 


COMPUTATION. 


Admissibility    in    Evidence,    see    Evidence, 

1009. 
Of  Time,  see  Time,  10-19. 


CONCEALED  WEAPONS. 
Search  for,  see  Search  and  Seizure,  6. 


♦  •» 


CONCEALMENT. 

As  a  Fraud,  see  Fraud  and  Deceit,  II. 
Effect  of,  on  Running  of  Limitations,   see 
Limitation  of  Actions,  11.  e. 

Editorial  Notes. 

Of  other  crime,  as  motive  for  crime  charged. 
62:  211. 

♦  *  » 


CONCILIATION. 

Court  of,  see  Arbitration,  12-14. 

♦■•-♦^ 

CONCLUSION. 

Opinion  as  to,  see  Evidence,  VII. 
Averment   of,  see  Appeal  and  Error,   104; 
Pleading,  I.  f. 


CONCURRENT  JURISDICTION. 

Over  Waters  of  Boundary  River,  see  Courts, 

30-37. 
Over  Criminal  Oflfenses,  see  Criminal  Law, 

nL 


COi^  CURRENT  NEGLIGENCE. 

Of   Master   and   Fellow    Servant,   see   Mas- 
ter and  Servant,  II.  e,  3. 


CONCURRENT  PROCEEDINGS. 
Against  Accused,  see  Criminal  Law,  II.  e. 


CONCURRENT  REMEDIES. 

See  Election  of  Remedies. 


CONCURRENT    RESOLUTION. 

Necessity  of  Signature  of  President  of  Sen 
ate  to,  see  Parliamentary  Law,  14. 


CONDEMNATION, 

Of  Property,  see  Eminent  Domain,  196. 


♦-•-♦ 

CONDITION. 

Precedent  to  Suit,  see  Action  or  Suit,  I.  b; 

Insurance,  921-925. 
To  Taking  of  Appeal,  see  Appeal  and  Error. 

III.  d. 
As  to  Delivery  of  Note,  see  Bills  and  Notes, 

29. 
To   Delivery  of   Bond,    see   Evidence,   306; 

Principal  and  Surety,  14-17. 
Of  Issuance  of  Municipal  Bonds,  see  Bonds, 

III.  b,  4. 
In  Railroad  Tickets,  see  Carriers,  II.  a,  10. 
In  Pass,  see  Carriers,  II.  a,  10,  c. 
In  Creating  Charitable  Trust,  see  Charities. 

44,  54,  63. 
In  Contract,  see  Contracts,  IV.  d. 
For  Rescission  of  Contract,  see  Contracts. 

V.  c,  2. 
To   Subscription    for  Corporate   Stock,    see 

Corporations,  378,  379. 
As  to  Foreign  Corporation  Doing  Business 

within  State,  see  Corporations,  848-855. 
Right  of  Entry  for  Condition  Broken,  see 

Covenant,  48;  Ejectment,  18. 
In  Pardon,  see  Criminal  Law,  IV.  h.  2. 
In  Deed,  see  Perpetuities,  2. 
Distinction   Between   Covenant   and  Condi- 
tion, see  Deeds,  40-43. 
Creation  of,  by  Habendum  Clause  of  Deed, 

see  Deeds,  44. 
Parol  Evidence  of,  see  Evidence,  VI.  1. 
Of  Gift,  see  Gift,  7,  8. 
Of  Guaranty,  see  Guaranty,  11. 
On  Right   of   Railroad  to  Use   Street,   see 

Highways,   148. 
As  to  Right  to  Paid  Up  Policy,  see  Insur- 
ance, 275. 
In  Insurance  Contract,  see  Insurance,  III.  e, 

IX.  §  32. 


506 


CONDITIONAL  FEE— CONFESSION  OF  FAITH. 

CONDUCTION. 

See  Electricity,  8. 


To  Taking  EflFect  of  Lease,  see  Landlord  and 
Tenant,  8-12. 

In  Oil  annd  Gas  Lease,  see  Mines,  73,  74. 

To  Right  in  Party  Wall,  see  Party  Wall,  6. 

Violation  of  Rule  against  Perpetuities  by, 
see  Perpetuities,  22. 

Allegations  as  to,  see  Pleading,  235,  271,  274. 

To  Relief  from  Local  Improvement  Assess- 
ment, see  Public  Improvements,  150, 
151. 

Relating  to  Real  Property,  see  Real  Prop- 
erty, L  a,  2;  m.  §  5. 

To  Action  for  Replevin,  see  Replevin,  l-€. 

Of  Sale,  see  Sale,  I.  c. 

For  Specific  Performance,  see  Specific  Per- 
formance, 76. 

To  Use  of  Street  Car  Tracks,  see  Street 
Railways,  24-26. 

In  Telegram,  see  Telegraphs,  II.  c. 

For  Use  of  Streets  by  Telephone  Company, 
see  Telephones,  10,  11. 

To  Right  to  Cut  Timber,  see  Timber,  5. 

Imposition  of,  on  Canceling  Usurious  Con- 
tract, see  Usury,  48. 

To  Right  to  Enforce  Land  Contract,  see  Ven- 
dor and  Purcbaser,  51. 

In  Will,  see  Perpetuities,  1;  Wills,  III.  g,  4. 

Editorial  Notes. 

Liability  of  grantee  upon  conditions  in  deed 
poll.     23:  396. 

Execution  of  contract  on  condition  that  oth- 
ers shall  sign.     45:  321. 


CONDITIONAL  FEE. 
See  Real  Property,  I.  a,  3;  Wills,  272,  273. 


CONDITIONAL  LIMITATION. 
See  Wills,  HI.  g,  6. 


CONDITIONAL  PARDON. 

Partial    Invalidity    of     Statute    as    to,  see 

Statutes,  91. 
See  also  Criminal  Law,  FV.  h,  2. 


CONDITIONAL  SALES. 


Question  for  Jury  as  to,  see  Trial,  233. 
See  also  Sale,  I,  34-46,  122-131. 


CONDONATION. 


In  Divorce  Case,  see  Divorce  and  Separation, 
44. 


CONDUCT. 
Estoppel  by,  see  Estoppel,  III.  e. 


CONDUCTOR. 


Authority  to  Hire  Brakeman,  see  Master  and 

Servant,  4. 
Duty  to  Furnish  on  Local  Train,  see  Master 

and  Servant,  214. 
As  Fellow  Servant,  see  Master  and  Servant, 

520-522,  581-587. 


CONDUITS. 


For    Telephone    Wires,    see    Constitutional 

Law,  965;  Telephones,  5. 
See  also  Subway. 


#•» 


CONFEDERATE  CERTIFICATE. 

For  Public  Land,  see  Public  Lands,  24. 

♦-•-♦ 

CONFEDERATE  MONEY. 

Presumption  of  Agent's   Authority  to  Re- 
ceive, see  Evidence,  284. 
Payment  in,  see  Payment,  7. 

Editorial  Notes. 

Injunction  against   enforcing  contracts   for. 

48:  843. 
Award  on  contract  for.     58:  183. 

#-•-♦ 


CONFERENCE. 

Of  Church,  see  Religious  Societies. 

♦«» 

CONFESSION. 

Evidence   of,    see   Evidence,   VIII. 
Weight  of,  see  Evidence,  2360. 
Judgment  by,  see  Judgment,  I.  b;  VIII.  §  6. 
Jury  Trial  on,  see  Jury,  59,  60. 

Editorial  Notes. 

By  infants.     36:  208, 

Proof  of  corpus  delicti  for  purpose  of  cor- 
roborating. 68:  50.  64,  68, 
71,  73. 

Competency  and  sufficiency  of,  as  evidence 
before  grand  jurv.  28: 
318. 

Admissibility  of  evidence  obtained  by  aid  of 
an  involuntary  or  inadmis- 
sible confession.     53:  402. 


CONFESSION  OF  FAITH. 
Change  in,  see  Religious  Societies,  11-16,  22. 


CONFIDENCE-CONFLICT  OF  LAWS. 


507 


CONFIDENCE. 

Violation  of,   see  Photographs,  2. 


CONFIDENCE  GAME. 

Locality  of  Prosecution  for,  see  Courts,  46. 

Attempt  to  Obtain  Money  by,  see  Criminal 
Law,  33. 

Indictment  for  Obtaining  Money  by,  see  In- 
dictment etc.,  50,  107. 


CONFIDENTIAL  COMMUNICATIONS. 
See  Privileged  Communications. 


CONFIDENTIAL  POSITIONS. 

Appointment  to,  see  Civil  Service,  6,  7. 

♦-•-♦ 

CONFIDENTIAL   RELATIONS. 

Between  Corporation  and   Its   Officers,   see 

Corporations,  IV.  g,  4. 
Presumption  as  to,  see  Evidence,  367-369. 


CONFINEMENT. 


Damages  for  Delay  in  Telegram  Summoning 
Physician  During,  see  iJamages,  189. 

Damages  for  Death  of  Child  During,  see 
Damages,  254. 

Expert  Evidence  as  to  Duration  of,  see  Evi- 
dence, 1283. 

Of  Convicted  Criminal,  see  Criminal  Law,  IV. 

Of  Lunatic,  see  Incompetent  Persons,  FV. 


CONFIRMATION. 
Of  Judicial  Sale,  see  Judicial  Sale,  IV. 


CONFISCATION. 


In  Regulating  Street  Car  Fares,  see  Consti- 
tutional Law,  741. 

Assessing  Entire  Cost  of  Land  Taken  for 
Alley  to  Owner  as,  see  Eminent  Do- 
main. 209. 

1.  The  legislature  cannot  confiscate  all 
property  rights  of  one  who  has  undertaken 
to  make  a  public  improvement  imder  his 
contract,  because  of  his  breach  of  his  un- 
dertaking to  obey  the  provisions  of  a  stat- 
ute as  to  the  rate  of  wages  to  be  paid.  Peo- 
ple ex  rel.  Rodgers  v.  Coler,  166  N.  Y.  1, 
59N.  E.  716,  52:814 

2.  An  ordinance  prohibiting  the  owner  of 
a  dead  carcass  from  removing  it,  but  requir- 


ing him  to  pay  a  public  contractor  for  its 
removal  a  fee  greater  than  the  value  of  the 
carcass,  is  unconstitutional  as  an  indirect 
confiscation  of  the  property.  Knauer  v. 
Louisville,  20  Ky.  L.  Rep.  193,  45  S.  W.  510, 
46S.  W.  701,  41:219 

3.  A  statute  attempting  to  prevent  a  rail- 
road company  extending  into  the  state  from 
another  state,  in  which  one  of  the  citizens 
of  the  former  is  injured  while  in  the  employ 
of  the  railroad  company,  from  setting  up  the 
decisions  of  the  latter  state  in  defense  of  an 
action  brought  in  the  former  state  to  en- 
force its  liability  for  the  injury,  is  void  as 
an  unconstitutional  confiscation  of  its  prop- 
erty rights.  Baltimore  &  O.  8.  W.  R.  Co.  v. 
Read,  158  Ind.  25,  62  N.  E.  488,  56:  468 


CONFLICT  OF  LAWS. 

I.  As  to  Rights. 

a.  In  General. 

b.  As  to  Contracts;  Insurance. 

1.  In  General, 

2.  Negotiable  Instruments; 

Bonds ;    Mortgages ;    Loans ; 
Interest. 

3.  Insurance  Matters. 

4.  Carriers'  Contracts. 

5.  As  to  Telegrams. 

6.  Of  Married  Man  or  Woman. 

a.  Of  Married  Man. 
6.  Of  Married  Woman. 

c.  Status;  Marriage;  Domestic  Rela- 

tions; Legitimation. 

d.  Corporate  Matters. 

1.  In  General. 

2.  Liability  of  Officers  and  Stock- 

holders. 

a.  Officers. 

b.  Stockholders. 

e.  Torts  and  Crimes  Generally. 

1.  Torts  Generally;  Personal  In- 

juries. 

2.  Death. 

3.  Crimes. 

f.  Insolvency;  Assignments  for  Cred- 

itors. 

g.  Rights     in     Property     Generally; 

Transfers. 
h.  Transfers  of  Property  Generally, 
i.  Chattel     Mortgages;      Conditional 

Sales, 
j.  Descent  and  Distribution;  Wills. 
IT.  Remedies. 
in.  Editorial  Notes. 

Consideration  of,  on  Appeal,  see  Appeal  and 
Error,  395. 

As  to  Jurisdiction  over  Nonresidents  Gener- 
ally, see  Courts,  I.  b. 

As  to  Conflict  of  Authority  between  Courts, 
see  Courts,  IV. 

Judicial  Notice  of  Foreign  Laws,  see  Evi- 
dence, 15-20. 

Presumption  as  to  Law  of  Other  State,  see 
Evidence,  173-193. 

Admissibility  of  Judgment  of  Other  State, 
or  County,  see  Evidence,  872-875. 

Action  by  Foreign  Administrator,  see  Execu- 
tors and  Administrators,  114-118. 


508 


CONFLICT  OP  LAWS.  L  a.  b.  1. 


Action  against  Foreign  Executors,  see  Ex- 
ecutors and  Administrators,  124-129. 

Situs  of  Debt  for  Purpose  of  Garnishment, 
see  Garnishment,  I.  d. 

As  to  Validity  and  Effect  of  Foreign  Judg- 
ments, see  Judgment,  IV. 

Powers  and  Rights  of  Foreign  or  Ancillary 
Receivers,  see  Receivers,  VI. 

Extraterritorial  Effect  of  Tax  Law,  see 
Taxes,   138. 

As  to  Venue  of  Action,  see  Venue. 


I.  As  to  Rights, 
a.  In  General. 

1.  A  state  law  which  contravenes  a  valid 
law  of  the  United  States  is  void.  In  legal 
contemplation  there  can  no  more  be  two 
valid  conflicting  laws  operating  upon  the 
same  subject-matter  at  the  same  time,  than 
in  physics  two  bodies  can  occupy  the  same 
space  at  the  same  time.  Re  N  eagle,  14 
Sawy.  232,  39  Fed.  833,  5:  78 

2.  Though  the  laws  of  a  state  do  not  have 
extraterritorial  force  as  mere  laws,  neverthe- 
less the  general  rule  is  that  things  done  in 
one  state  in  pursuance  of  the  laws  thereof 
are  valid  and  binding  in  other  states.  Amer- 
ican Waterworks  Co.  v.  Farmers'  Loan  &  T. 
Co.  20  Colo.  203,  37  Pac.  269,  25 :  338 
Public  policy. 

See  also  infra,   19-23,  26-28,   35-40,  92.  93, 
108,  114,  122,  169,  242,  260,  323,  324. 

3.  A  cause  of  action  arising  in  one  state, 
although  it  is  given  by  statute,  instead  of 
the  common  law,  may  be  asserted  in  another 
state,  if  the  statute  is  not  contrary  to  the 
known  policy  or  prejudicial  to  the  interests 
of  the  state  in  which  the  suit  is  brought. 
Nelson  v.  Chesapeake  &  O.  R.  Co.  88  Va. 
971,  14  S.  E.  838,  15:  583 

4.  Comity  will  enforce  rights  not  in  their 
nature  local  and  not  contrary  to  the  policy 
of  the  government  of  the  tribunal,  no  mat- 
ter where  arising,  and  without  regard  to 
whether  they  are  of  common-law  or  statu- 
tory origin.  Usher  v.  West  Jersev  R.  Co. 
126  Pa.  206,  17  Atl.  597,  '     4:  261 

5.  Comity  between  different  states  does 
not  require  a  law  of  one  state  to  be  executed 
in  another,  where  it  would  be  against  the 
public  policy  of  the  latter  state.  Pope  v. 
Hanke,  155  111.  617,  40  ISJ.  E.  fc39,  28:  568 
Common-law  right  of  action. 

See  also  infra,  24,  25. 

6.  The  mere  existence  of  a  slight  variance 
of  view,  not  amounting  to  a  fundamental 
difference  of  policy,  between  the  state  in 
which  a  cause  of  action  imder  the  common 
law  arose  and  that  in  which  it  is  sought  to 
be  enforced,  does  not  deprive  the  court  of 
the  latter  state  of  jurisdiction  of  the  subject 
matter.  Eingartner  v.  Illinois  Steel  Co.  94 
Wis.  70,  68  N.  W.  664.  34:  503 
Statutory  cause  of  action  generally. 

As  to  Liabilitv  of  Stockholder,  see  infra,  I. 

d,  2,  b. 
See  also  supra,  3;   Statutes.  445. 

7.  A  cause  of  action  to  enforce  a  liability 
created  solely  by  statute  is  local,  and  can  be 


enforced    only    in    that    state.     Crippen   v. 
Laighton,  69  N.  H.  540,  44  Atl.  538,    46:  467 

8.  In  all  cases  where  a  court  is  called 
upon  to  give  effect  to  a  right  dependent  up- 
on a  foreign  statute,  it  involves  the  entorce- 
ment  of  foreign  law,  and  its  action  in  that 
regard  depends  upon  the  rule  of  comity. 
Finney  v.  Guy,  106  Wis.  256,  82  N.  W.  595, 

49:  486 

9.  A  statute  providing  that  an  associa- 
tion or  partnership  can  be  sued  in  its  com- 
pany name  has  no  extraterritorial  fojce  or 
effect.  ■  Edwards  v.  Warren  Linoline  &  G. 
Works,  168  Mass.  564,  47  N.  E.  502,    38:  791 

10.  A  court  will  not  undertake  to  adjudi- 
cate rights  which  originated  in  any  other 
state  or  country  under  statutes  materially 
different  from  the  law  of  the  forum  in  re- 
lation to  the  same  subject.  Mexican  Nat. 
R.  Co.  V.  Jackson,  89  Tex.  107,  33  S.  W.  857, 

31 :  276 

11.  It  is  for  the  court  whose  jurisdiction 
is  invoked  to  determine  whether  or  not  the 
law  of  a  foreign  country  by  which  the  right 
claimed  must  be  determined  is  such  that  it 
can  properly  and  intelligently  be  adminis- 
tered by  that  court,  with  due  regard  to  the 
rights  of  the  parties.  Id. 
Award. 

12.  The  doctrine  of  comity  of  states  can- 
not be  invoked  in  aid  of  an  award  founded 
upon  a  claim  arising  oiit  of  an  illegal  trans- 
action. Singleton  v.  Benton,  114  Ga.  548,  40 
S.  E.  811,  58:  181 

b.  As   to   Contracts;    Insurance. 

1.  In  General. 

As  to  Statute  of  Frauds,  see  infra,  331-335. 
As  to  Transfers  of  Property  Generally,  see 

infra,  I.  h. 
Conclusiveness  of  Fmding  as  to,  see  Appeal 

and  Error,  835. 
Place  of  Making  Contract  by  Telephone,  see 

Venue,  7. 
See  also  infra,  157,  162,  166,  320. 
For  Editorial  Notes,  see  infra,  III.  §§  6-8. 

13.  A  contract  made  and  to  be  performed 
in  a  certain  state  is  to  be  tested  by  the  law 
of  that  state.  Crumlish  v.  Central  Improv. 
Co.  38  W.  Va.  390,  18  S.  E.  456,       23:  120 

14.  Contracts  receive  their  sanction  from 
the  law  of  tne  place  where  they  are  executed 
and  to  be  performed,  and  their  interpreta- 
tion is  controlled  by  that  law.  Heaton  v. 
Eldridge,  56  Ohio  St.  87,  46  N.  E.  638, 

36:  817 

15.  The  place  of  making  the  contract  is 
presumably  that  of  its  performance,  in  the 
absence  of  anything  indicating  the  contrary. 
Tillinghast  v.  Boston  &  P.  R.  Lumber  Co. 
39  S.  C.  484,  18  S.  E.  120,  22  :49 

16.  The  law  declared  by  state  courts  to 
govern  contracts  made  within  their  jurisdic- 
tion is  conclusive  everywhere;  and  the  valid- 
ity or  binding  effect  of  such  contracts  cannot 
be  affected  by  any  so-called  commercial  law. 
Forepaugh  v'  Delaware,  L.  &  W.  R.  Co.  128 
Pa.  217,   18  Atl.  503,  5:  508 

17.  An   express   provision   in    a   contract, 


CONFLICT  OF  LAWS,  I.  b.  2. 


509 


that  it  shall  be  construed  to  have  been  made 
in  a  certain  state,  makes  it  subject  to  the 
laws  of  that  state.  Union  C.  L.  Ins.  Co.  v. 
Pollard,  94  Va.  146,  26  S.  E.  421,       36:  271 

18.  Courts  will  not  enforce  the  penal  stat- 
utes or  criminal  laws  of  a  foreign  state ;  but, 
by  the  comity  existing  between  states  or 
sovereigns,  contracts  and  liabilities  recog- 
nized by  the  laws  of  the  state  or  country 
where  made  or  established  may  be  enforced 
in  the  courts  of  the  state  or  country  where 
the  action  is  brought,  unless  contrary  to  the 
policy  or  laws  of  the  latter.  Midland  Co.  v. 
Broat,  50  Minn.  562,  52  N.  W.  972,  17:  312 
Public  policy. 

See  also  supra,  3-5,  35-40,  92,  93,  108,  114, 
122,  242,  260,  334. 

19.  A  contract  of  another  state,  valid 
where  it  was  made,  will  not  be  enforced  in  a 
state  in  which  it  is  forbidden  by  public  pol- 
icy. Gooch  V.  Faucette,  122  N.  C.  270,  29 
S.  E.  362,  39:  835 

20.  A  contract  which  violates  the  positive 
legislation,  or  the  established  public  policy, 
of  the  state  of  the  forum  will  not  be  en- 
forced in  that  state,  although  perfectly  valid 
and  legal  according  to  the  laws  of  the  state 
or  country  where  it  is  made.  Corbin  v. 
Houlehan,'lOO  Me.  246,  61  Atl.  131,     70:  568 

21.  The  doctrine  of  state  comity  will  not 
be  applied  in  behalf  of  a  corporation  seeking 
to  recover  upon  a  claim  on  a  contract  ex- 
pressly prohibited  by  law,  or  which  is  clearly 
at  variance  with  the  settled  policy  of  the 
state.  Seamans  v.  Temple  Co.  105  Mich. 
400,  63  N.  W.  408,  28:  430 

22.  A  clause  in  a  contract  for  a  tour  to 
conduct  entertainments,  the  performance  of 
whidh  will  extend  into  several  countries, 
that  suits  upon  it  shall  be  brought  in  the 
country  where  the  contracting  parties  are 
domiciled,  is  valid,  and  will  be  enforced  by 
the  courts  of  other  countries.  Mittenthal 
V.  Mascagni,  183  Mass.  19,  66  N.  E.  425, 

60:  812 

23.  One  who,  in  addition  to  selling  liquors 
in  one  state  to  a  resident  of  another  one  who 
intends  to  resell  them  there  in  violation  of 
law,  does  some  act  in  furtherance  of  the  il- 
legal purpose,  cannot  resort  to  the  courts 
of  the  latter  state  to  enforce  payment  there- 
for. Corbin  v.  Houlehan,  100  Me.  246,  61 
Atl.  131,  70:  568 
Common  law. 

See  also  supra,  0. 

24.  In  the  absence  of  proof  as  to  the  law 
of  another  state  by  which  a  contract  is  to 
be  enforced,  the  common  law,  and  not  the 
statute  law,  of  the  state  where  the  suit  is 
brought  will  be  applied.  Cherry  v.  Sprague, 
187  Mass.  113,  72  N.  E.  456,  67:  33 

25.  The  courts  of  New  York  will  construe 
the  common  law  as  applicable  to  a  contract 
made  and  to  be  performed  in  another  state, 
according  to  their  own  precedents,  although 
they  will  follow  the  courts  of  such  other 
state  in  the  construction  of  its  statute  law. 
St.  Nicholas  Bank  v.  State  Nat.  Bank,  128 
N.  y.  26,  27  N.  E.  849.  13:  241 


2.  Negotiable    Instruments;    Bonds;    Mort- 
gages;   Loans;    Interest. 

See  also  infra,  51,  108,  109,  250,  330. 
For  Editorial  Notes,  see  infra,  III.  §  3. 

26.  A  stipulation  in  a  contract  that  it 
is  to  be  regarded  as  one  made  in  a  foreign 
state  will  not  prevent  its  being  treated  as 
a  domestic  one  where  it  is  based  on  a  loan, 
the  application  for  which  is  made  in  the 
state,  to  a  corporation  domiciled  and  doing 
business  there  through  a  resident  agent,  and 
the  loan  is  secured  by  mortgage  upon  laud 
in  the  state,  executed  annd  acknowledged 
there,  and  the  money  is  used  there.  Wash- 
ington National  Bldg.  L.  &  I.  Asso.  v.  Stan- 
ley, 38  Or.  319,  63  Pac.  489,  58:  816 

27.  The  borrowing  of  money  from  the  lo- 
cal agent  of  a  foreign  loan  association  which 
maintains  a  place  of  business  within  the 
state,  and  giving  the  association  a  mortgage 
as  security  through  him,  is  a  local  contract, 
although  the  papers  are  to  be  approvea,  and 
the  money  paid  at  the  domicil  of  the  asso- 
ciation, and  the  papers  expressly  state  that 
th'?  contract  is  to  be  governed  by  the  law  of 
the  domicil.  Falls  v.  United  States  Sav.  L. 
&  B.  Co.  97  Ala.  417,  13  So.  25,  24:  174 

28.  A  contract  to  pay  money  to  a  loan 
association  situated  in  another  state  at  its 
place  of  business,  made  by  a  resident  of  one 
state,  who  applied  to  become  a  member  of 
the  association  as  resident  in  the  foreign 
state,  is  to  be  governed  by  the  laws  of  its 
residence,  although  it  had  an  agency  at  the 
place  where  the  borrower  resided  through 
which  the  contract  was  made.  Bennett  v. 
Eastern  Bldg.  &  L.  Asso.  177  Pa.  233,  35  Atl. 
684,  34:  595 
Bills  and  notes  generally. 

For  Editorial  Notes,  see  infra.  III.  §  3. 

29.  A  note  is  a  contract  of  the  state  where 
it  is  delivered  and  payable,  although  it  was 
sismed  in  another  state  by  a  person  resident 
there.  First  Nat.  Bank  v.  Shaw,  109  Tenn. 
237,  70  S.  W.  807,  59:  498 

30.  A  promissory  note  payable  in  the  state 
where  the  payee  receives  it  through  the  mail 
is  a  contract  of  that  state,  and  not  of  the 
one  where  the  maker  resides,  and  where  the 
instrument  was  executed.  Cherry  y. 
Sprague,  187  Mass.  113,  72  N.  E.  456,     67:  33 

31.  A  bill  of  exchange  drawn  in  Indiana 
and  accepted  in  Michigan,  to  be  discounted 
in  Indiana  and  to  be  paid  in  Michigan,  is  an 
Indiana  contract,  the  liability  on  which  is  to 
be  determined  by  Indiana  law.  Farmers 
Nat.  Bank  v.  Sutton  Mfg.  Co.  6  U.  S.  App. 
312,  3  C.  C.  A.  1,  52  Fed.  191,  17:  595 

32.  Delivery  of  notes  into  the  mail,  to  be 
forwarded  to  another  state  in  accordance 
with  the  understanding  between  maker  and 
payee,  completes  the  delivery  so  as  to  make 
the  contract  one  to  be  governed  by  the  laws 
of  the  state  where  the  postoflice  is  located. 
Garrigue  v.  Keller,  164  Ind.  676,  74  N.  E. 
523,  69:  870 

33.  The  fact  that  in  using  a  blank  form  a 
note  is  on  its  face  dated  at  a  certain  place 
and  made  payable  there  does  not  prevent  it 
from  being  considered  a  coatract  of  another 


510 


CONFLICT  OF  LAWS,  I.  b,  2. 


state  in  which  it  was  delivered,  when  such 
was  the  intention.  First  Nat.  Bank  v. 
Mann,  94  Tenn.  17,  27  S.  \V.  1015,      27:  565 

34.  The  liability  of  joint  makers  of  a  note 
is  controlled  by  the  law  of  the  place  where 
the  contract  is  payable.  Hudson  Furniture 
Co.  V.  Harding,  34  U.  S.  App.  148,  17  C.  C.  A. 
203,  70  Fed.  468,  30:  513 
Validity, 

35.  A  note,  valid  where  made,  cannot  be 
enforced  in  another  state  to  whose  public 
policy  the  transactions  which  form  its  con- 
sideration are  contrary.  Winward  v.  Lin- 
coln, 23  R.  I.  476,  51  Atl.  106,  64:  160 

36.  Transactions  of  a  broker  which  be- 
come the  basis  of  a  note  given  by  his  prin- 
cipal, and  which  are  performed  in  one  state 
where  the  note  is  delivered  under  directions 
of  the  principal  by  telephone  or  letter  from 
another  state,  are,  for  the  purpose  of  deter- 
mining the  validity  of  the  consideration  for 
the  note,  to  be  judged  by  the  law  of  the 
place  where  the  broker  performed  them.    Id. 

37.  The  validity  of  a  note  executed  and 
made  payable  in  the  state  of  New  York  by 
one  of  the  members  of  a  partnership  in  In- 
diana, to  pay  or  secure  losses  or  margins  on 
gambling  or  wagering  speculations  in  New 
York,  is  to  be  determined  primarily  by  the 
law  of  the  state  of  New  York.  Sondheira 
v.  Gilbert,  117  Ind.  71,  18  N.  E.  687,    5:  432 

38.  The  validity  of  a  negotiable  note  in 
tlie  hands  of  a  bona  iide  holder  in  the  state 
where  the  contract  was  made,  although  the 
consideration  of  the  note  was  the  settle- 
ment of  differences  under  an  illegal  option 
contract,  does  not  require  its  enforcement 
by  the  courts  in  another  state  in  which  the 
statutes  make  such  notes  void  even  in  the 
hands  of  a  bona  fide  holder,  and  make  the 
transactions  out  of  which  the  consideration 
arose  criminal.  Pope  v.  Hanke,  155  ill.  617, 
40  N.  E.  839,  28:  568 

39.  Whether  or  not  Ind.  Rev.  Stat.  1881, 
§  4950,  making  void  notes,  etc.,  any  part  of 
the  consideration  of  which  is  money  or  other 
valuable  thing  won  on  the  result  of  any 
wager,  or  to  repay  money  loaned  at  the 
time  of  such  wager,  etc.,  applies  to  a  note  in 
the  hands  of  an  innocent  holder,  given  and 
payable  in  that  state  for  speculation  in  fu- 
tures, it  will  not  be  construed  to  invalidate 
a  note  in  the  hands  of  such  a  holder  if  exe- 
cuted and  made  payable  in  New  York,  to  be 
used  in  purchasing  options,  or  to  be  put  up 
as  a  margin  in  cotton  speculations  in  that 
state.  Sondheim  v.  Gilbert,  117  Ind.  71,  18 
N.   E.   687,  5:  432 

40.  A  note  to  pay  a  bet  on  a  horse  race 
run  in  Virginia  where  such  notes  are  pre- 
sumed valid,  and  where  the  original  note  of 
which  this  is  a  renewal  was  given,  will  not 
be  enforced  in  North  Carolina,  even  if  it  is 
deemed  a  Virginia  contract,  since  it  is 
contrary  to  the  public  policy  of  the  state. 
Gooch  V.  Faucette,  122  N.  C.  270,  29  b.  E. 
362,  ^  39:  835 
Suretyship  on  note. 

See  also  infra,  116-118. 

41.  The  contract  of  a  surety  on  a  note  is 
complete  when  his  signature  is  afRxed  and 


the  instrument  delivered  to  the  payee,  and 
is  therefore  governed  by  the  law  of  the  place 
where  those  transactions  occur,  although  the 
note  is  payable  in  another  state,  and  as 
against  the  makers  has  no  valid  inception 
until  its  negotiation  in  the  latter  State,  if 
the  surety  has  no  knowledge  that  it  is  to 
be  negotiated  there,  or  intention  that  his 
contract  shall  be  governed  by  the  laws  of 
that  state.  Union  National  Bank  v.  Chap- 
man, 169  N.  Y.  538,  62  N.  E.  672,  57:  513 
Indorsement  of  note. 
For  Editorial  Notes,  see  infra,  IH.  §  3. 

42.  A  contract  of  indorsement  of  a  prom- 
issory note  is  governed  by  the  law  of  the 
state  where  it  is  made,  although  the  note 
itself  is  executed  and  payable  in  another 
state,  unless  the  intention  is  to  negotiate 
the  instrument  elsewhere.  Spies  v.  National 
City  Bank,  174  N.  Y.  222,  66  N.  E.  736, 

61 :  193 

43.  The  right  to  show  that  the  obligation 
growing  out  of  an  indorsement  of  a  promis- 
sory note  is  not  absolute,  but  depends  upon 
a  collateral  oral  agreement,  relates  to  the 
nature  and  validity  of  the  contract,  and  not 
to  the  remedy,  and  is  governed  by  the  lex 
loci  contractus.  Baxter  Nat.  Bank  v.  Tal- 
bot, 154  Mass.  213,  28  N.  E.  163,  13:  52 
Collection  of  check. 

44.  The  seeding  of  a  check  by  a  New  York 
bank  to  a  Tennessee  bank  for  collection  in 
Texas  does  not  constitute  the  contract  for 
collection  a  Tennessee  contract.  St.  Nicho- 
las Bank  v.  State  Nat.  Bank,  128  N.  Y.  26, 
27  N.  E.  849,  13:  241 
Bonds. 

45.  It  seems  that  the  validity  of  a  con- 
tract made  in  New  York  for  bonds  then  in 
litigation  in  Alabama,  and  for  the  payment 
of  the  expenses  of  such  litigation,  while  the 
bonds  were  not  to  be  delivered  until  its  ter- 
mination, is  to  be  determined  by  the  laws 
of  Alabama.  Gilman  v.  Jones,  87  Ala.  691, 
7  So.  48,  5  So..  785,  4:  li3 

46.  Railroad-aid  bonds  issued  by  a  county 
under  a  statute  authorizing  them  to  bear  in- 
terest at  the  legal  rate  at  the  place  where 
they  are  made  payable  are  not  defeated  by 
the  fact  that  the  rate  at  which  they  are 
fixed — they  being  payable  in  another  state 
— is  larger  than  the  maximum  rate  in  the 
state  where  they  are  issued.  Nelson  v.  Hay- 
woo<l  County,  87  Tenn.  781,  11  S.  W.  885. 

4:  648 

47.  A  bond  given  by  the  plaintiff  in  a  suit 
in  another  state,  in  conformity  with  the 
laws  of  such  state,  upon  the  issuance  of  a 
writ  of  ne  exeat,  to  secure  the  defendant 
therein  for  his  costs  and  damages,  gives  a 
right  of  action  under  the  lex  loci,  in  case 
of  a  breach  of  the  bond,  which  may  be  en- 
forced in  a  foreign  jurisdiction;  and  such 
1)ond  may  be  the  subject  of  counterclaim  in 
favor  of  the  obligee,  under  the  laws  of  Min- 
nesota, in  an  action  upon  contract,  brought 
against  him  there  by  the  obligor  in  such 
bond.  Midland  Co.  v.  Broat,  50  Minn.  562, 
52  N.  W.  972,  17:  312 


CONFLICT  OF  LAWS,  I.  b,  2. 


511 


Mortgages. 

As  to  Chattel  Mortgages,  see  infra,  I.  i. 

Law  Governing  Execution,  Acknowledgment 

and  Recording  of  Chattel  Mortgage,  see 

Chattel  Mortgage,  3. 
See  also  infra,  54--57,  59,  158,  159,  343. 

48.  A  loan  is  an  Alabama  contract,  when 
the  application  is  made,  the  money  paid  over 
to  the  borrower,  and  the  notes  and  mort- 
gage executed,'  in  that  state,  although  the 
debt  is  made  payable  in  New  York  and  the 
money  was  sent  from  that  state  to  the 
mortgagee's  agent  in  Alabama,  to  be  paid 
over  on  the  execution  of  the  papers.  Ameri- 
can Freehold  Land  Mortg.  Co.  v.  Sewell,  92 
Ala.  163,  9  So.  143,  13:299 

49.  The  attempt  to  enforce  a  mortgage  on 
land  in  one  state  to  secure  a  building  asso- 
ciation loan  and  contract  made  in  another 
state  does  not  require  the  validity  of  the 
contract  and  the  amount  due  under  it  to 
be  determined  by  the  law  of  the  St^te  where 
the  land  is  situated.  Mcllwaine  v.  Elling- 
ton, 49  C.  C.  A.  446,  111  Fed.  578,       55:  933 

50.  A  real-estate  mortgage  made  by  a  for- 
eign corporation  to  nonresident  creditors  to 
secure  a  bona  fide  antecedent  debt  may  be 
held  valid  in  the.  state  where  the  land  Is, 
when  it  is  not  prohibited  by  the  statutes  of 
the  state  in  which  the  corporation  and  the 
creditors  reside,  although  the  judicial  deci- 
sions in  that  state  hold  such  a  mortgage  to 
be  an  unlawful  preference.  Nathan  v.  Lee, 
152  Ind.  232,  52  N.  E.  987,  43:  820 

51.  A  note  and  mortgage  are  contracts  of 
the  state  where  the  mortgagee  resides,  when 
they  are  executed  in  favor  of  a  building 
and  loan  association  upon  an  application  ad- 
dressed to  it  at  its  home  office,  where  it 
was  to  be  examined  and  passed  upon  by  the 
company's  officers,  and,  if  approved,  the  nec- 
essary papers  were  to  be  filled  out  and  for- 
warded for  execution,  after  which  they  were 
to  be  returned  to  the  home  office  for  accept- 
ance, while  they  expressly  state  that  the 
contract  shall  be  governed  by  the  laws  of« 
the  residence  of  the  mortgagee,  although  the 
land  by  which  the  note  is  secured  is  located 
in  another  state,  where  the  application  is 
signed  and  delivered  to  the  agent  of  the 
mortgagee  for  transmission  to  the  home 
office.  United  States  Sav.  &  L.  Co.  v.  Beck- 
ley,  137  Ala.  119,  33  So.  934,  62:  33 
Interest  generally. 

52.  The  date  from  which  a  legacy  carries 
interest  is  to  be  determined  by  the  law  of 
testator's  domicil.  Welch  v.  Adams,  152 
Mass.  74,  25  N.  E.  34,  9:  244 
Rate  of  interest;  usury. 

See  also  supra,  46. 

For  Editorial  Notes,  see  infra,  III.  §§  9,  11, 
26. 

53.  The  rate  of  interest  on  a  contract  be- 
tween citizens  of  different  states  may  be 
made  according  to  the  law  of  either  state. 
Dugan  V.  Lewis.  79  Tex.  246,  14  S.  W.  1024, 

12:  93 
64.  The  law  of  the  state  in  which  a  note 
for  money  loaned  is  given,  governs  on  the 
question  of  usury,  wTiere  it  is  secured  by  a 
deed  of  land  located  in  the  state,  and  part 
of  the  money,  representing  the  usury,  was 


deducted  from  the  loan,  and  never  paid  over 
to  the  borrower,  although  the  note  is  ex- 
pressly made  payable  in  another  state. 
Martin  v.  Johnson,  84  Ga.  481,  10  S.  E. 
1092,  8:  170 

55.  The  law  of  Texas  governs  the  rate  of 
interest  on  notes  secured  by  a  trust  deeo 
given  for  money  borrowed  in  New  York, 
where  the  bargain  was  made  and  the  money 
and  papers  delivered  by  an  agent  in  behalf 
of  a  citizen  of  Texas  who  signed  and  dated 
the  papers  in  the  latter  state,  where  the 
stipulated  rate  of  interest  would  have  been 
usurious  in  New  York,  but  not  in  Texas,  and 
the  deed  of  trust  provides  that  the  contract 
"shall  be  construed  according  to  the  law  of 
the  state  of  Texas,  where  the  same  is  made." 
Dugan  V.  Lewis,  79  Tex.  246,  14  S.  W.  1024, 

12:  93 

56.  Whether  or  not  a  loan  by  a  foreign 
building  and  loan  association  to  a  resident 
of  the  state,  secured  by  mortgage  on  land 
within  the  state,  is  usurious,  will  be  deter- 
mined by  the  local  laws,  notwithstanding 
the  notes  are  payable  at  the  domicil  of  the 
corporation,  if  it  has  localized  its  business 
by  establishing  boards  throughout  the  state 
to  which  payments  on  loans  are  to  be  made. 
National  Mutual  Bldg.  &  L.  Asso.  v.  Brahan, 
80  Miss.  407,  31  So.  840,  57:  793 

57.  Whether  or  not  a  loan  by  a  foreign 
building  and  loan  association  to  a  resident 
of  the  state,  secured  by  mortgage  on  land 
within  the  state,  is  usurious,  will  be  deter- 
mined by  the  local  laws,  notwithstanding 
the  notes  are  payable  at  the  domicil  of  the 
corporation,  if  it  has  localized  its  business 
by  establishing  boards  throughout  the  state 
to  whicb  payments  on  loans  are  to  be  made. 
Shannon  v.  Georgia  State  Bldg.  &  L.  Asso. 
78  Miss.  955,  30  So.  51,  57:  800 

58.  Courts  of  a  state  where  a  foreign 
building  and  loan  association  is  doing  bus- 
iness will  not  enforce  a  usurious  contract 
loaning  money  to  one  of  its  citizens,  al- 
though the  loan  is  payable  at  the  domicil 
of  the  association,  where  the  contract  is 
valid,  if  the  stipulation  for  payment  there 
was  introduced  merely  to  avoid  the  local 
usury  laws.  Pacific  States  Savings  L.  & 
Bldg.  Co.  V.  Hill,  40  Or.  280,  67  Pac.  103, 

56:  163 

59.  The  contract  of  a  foreign  building  as- 
sociation, made  with  a  citizeri  of  West  Vir- 
ginia, secured  by  a  deed  of  trust  upon  real 
estate  situated  in  this  state,  and  by  its 
terms  to  be  performed  in  the  domiciliary 
state,  must  conform  to  the  requirement  of 
the  local  law  with  respect  to  premiums,  and, 
if  it  does  not,  such  contract  is  not  within 
the  exemption  from  the  operation  of  the 
usury  laws  given  by  the  statute  to  domestic 
building  and  loan  associations.  Floyd  v.  Na- 
tional Loan  &  Invest.  Co.  49  W.  Va.  327. 
,38  S.  E.  653,  54:536 

60.  Charter  privileges  as  to  the  rate  of 
interest  a  corporation  may  receive  on  its 
loans  are  not  available  to  it  in  a  foreign 
state,  in  contravention  of  the  usury  laws. 
Falls  V.  United  States  Sav.  L.  &  B.'  Co.  9/ 
Ala.  417,  13  So.  25,  24:  174 


512 


CONFLICT  OP  LAWS.  I.  b,  3. 


3.  Insurance  Matters. 

See  also  infra,  330. 

For  Editorial  Notes,  see  infra,  III.  §  4. 

61.  The  local  law  governs  a  policy  of  in- 
surance on  real  property  delivered  to  the 
owner  in  the  state  where  the  property  is 
situated,  although  the  policy  was  issued  by 
a  foreign  corporation.  Daggs  v.  Orient  Ins. 
Co.  136  Mo.  382,  38  K.  W.  85,  35:  227 

62.  A  contract  with  a  foreign  insurance 
company,  made  in  another  state  in  which  it 
is  valid,  but  in  direct  violation  of  the  laws 
of  the  state  in  which  the  property  is  situ- 
ated and  in  which  the  insured  resides,  will 
not  be  enforced  in  the  latter  state.  Swing 
V.  Munson,  191  Pa.  582,  43  Atl.  342,    58:  223 

63.  An  insurance  policy  which  is  not  to 
take  effect  until  it  is  delivered,  after  pay- 
ment of  the  liTst  premium,  is  a  contract  of 
the  state  where  delivery  takes  place,  and  to 
be  governed  by  its  laws;  and  it  is  immate- 
rial that  premiums  are  to  be  paid  and  the 
policy  liquidated  at  the  office  of  the  insurer 
in  another  state.  Metropolitan  L.  Ins.  Co. 
V.  Bradby,  98  Tex.  230,  82  S.  W.  1031, 

68:  509 

64.  The  office  of  the  insurer  is  the  place  of 
contract,  where  it,  in  response  to  the  re- 
quest of  a  broker  not  its  agent,  mails  a 
policy,  blank  application,  and  premium  note 
to  the  property  owner  in  another  state,  for 
him  to  fill  the  blanks  and  return  the  ap- 
plication and  note  for  the  approval  of  the 
insurer.  Seamans  v.  Knann  S.  &  Co.  Com- 
pany, 89  Wis.  171,  61  N.  W.  757,       27:  362 

65.  Where  a  policy  of  insurance  is  issued 
on  property  in  one  state  by  a  company  in 
another  state,  and  it  does  not  appear  where 
it  was  delivered  or  payable,  ol*  where  the 
contract  was  made  or  the  premium  paid,  it 
may  be  inferred  that  the  contract  was  made 
in  either  state,  as  readily  as  in  the  other. 
Pennypaeker  v.  Capital  Ins.  Co.  80  Iowa,  56. 
45  N.  W.  408,  8:  236 

66.  An  insurance  policy  is  governed  oy  the 
law  of  the  state  in  which  it  is  actually  de- 
livered to  the  insured  and  the  premium 
paid  by  him  to  the  insurer's  agent,  although 
it  was  issued  by  a  foreien  corporation  in 
another  state,  and  expressly  provides  that 
it  shall  be  construed  according  to  the  laws 
of  that  state,  where  it  also  provides  that 
it  shall  not  be  in  force  until  actual  payment 
of  the  premium.  Cravens  v.  New  York  L. 
Ins.  Co.  148  Mo.  583,  50  S.  W.  519,    53:  305 

67.  The  contract  contained  in  a  mutual 
benefit  certificate,  which  requires  the  ben- 
eficiary to  sign  an  acceptance  of  its  provi- 
sions, is  made  where  the  contract  is  con- 
summated by  such  acceptance,  and  subject 
to  the  laws  there  in  force.  Mever  v.  Su- 
preme Lodge  K.  of  P.  178  N.  Y.  63,  70  N.  E. 
Ill,  ■  04:  8.30 

68.  Executing  in  one  state  a  reinstate- 
ment of  a  policy  made  in  another  state  will 
not  destroy  the  character  of  the  polipy  as  a 
contract  of  the  state  where  it  was  origi- 
nallv  executed.  Goodwin  v.  Provident  Sav. 
L.  Assur.  Soc.  97  Iowa,  226,  66  N.  W.   157. 

32:  473 


Application. 

For  Editorial  Notes,  see  infra,  III.  §  4. 

69.  A  proviso  that  every  life  insurance 
policy  containing  a  reference  to  the  appli- 
cation must  have  a  correct  copy  thereof  at- 
tached to  it  must  be  limited  by  the  provi- 
sions of  the  statute  in  which  it  is  incorpo- 
rated; and,  if  that  deals  with  policies  issued 
in  the  state,  the  proviso  can  have  no  bearing 
on  policies  issued  by  foreign  companies  in 
other  states,  although  they  were  upon  lives 
of  persons  domiciled  in  the  state  Where  the 
statute  was  passed.  Johnson  v.  Mutual  L. 
Ins.  Co.  180  Mass.  407,  62  N.  E.  733, 

63:  833 

70.  A  statute  for  the  regulation  of  insur- 
ance contracts,  providing  that  no  answer  in 
an  application  shall  bar  a  recovery  unless 
wilfully  false,  fraudulently  made,  material, 
and  one  which  induced  the  company  to  issue 
the  policy,  will  govern  a  policy  issued  by  a 
corporation  of  that  state  on  property  in  an- 
other state  when  it  is  expressly  made  sub- 
ject to  the  laws  of  the  former  state.  Union 
C.  L.  Ins.  Co.  v.  Pollard,  94  Va.  '146,  26  S.  E. 
421,  36:  271 

71.  Applications  for  insurance  sent  by 
mail  to  another  state,  where  they  are  passed 
upon  and  accepted,  and  in  which  policies  are 
dated  and  signed  and  then  mailed  to  the  in- 
sured, are  governed  by  the  laws  of  that 
state,  so  as  to  be  unaffected  by  statutes  at 
the  residence  of  the  insured  prohibiting  in- 
surance by  unauthorized  foreign  companies. 
State  Mut.  F.  Ins.  Co.  v.  Brinkley  Stave  & 
H.  Co.  61  Ark.  1,  31  S.  W.  157,  29:  712 
Assignments. 

For  Editorial  Notes,  see  infra,  III.  §  4. 

72.  The  laws  of  Maryland  govern  the 
rights  of  parties  in  that  state  under  an  as- 
signment of  a  life  policy  issued  by  a  New 
York  corporation  to  a  citizen  of  Maryland 
on  an  application  made  to  an  agent  of  the 
company  in  Baltimore.  Mutual  Reserve 
Fund  L.  Asso.  v.  Hurst,  78  Md.  59,  26  Atl. 
956,  20:  761 
Notice  before  forfeiture. 

For  Editorial  Notes,  see  infra.  III.  §  4. 

73.  Policies  issued  and  delivered  by  a  New 
York  companv  in  another  state  are  subject 
to  the  terms  "of  N.  Y.  Laws  1892,  chap.  690, 
§  92,  providing  that  "no  life  insurance  com- 
pany doing  business  in  this  state"  shall  de- 
clare a  policy  forfeited  without  having  given 
prescribed  notice.  Mutual  L.  Ins.  Co.  v. 
Dingley,  40  C.  C.  A.  459,  100  Fed.  408, 

49:  132 

74.  A  provision  of  an  insurance  policy 
issued  by  a  corporation  of  one  state  to  a 
resident  of  another  state,  that  notice  as  to 
payment  of  premiums,  as  stated  in  the  pol- 
icy, is  given  and  accepted  by  its  delivery, 
and  "any  further  notice  required  by  any 
statute  is  waived,"  expressly  makes  inap- 
plicable a  statute  of  the  state  where  the  in- 
surer is  domiciled,  requiring  certain  notices 
to  be  given  before  policies  can  be  forfeited 
for  nonpavment  of  premiums.  Metropoli- 
tan L.  Ins.  Co.  v.  Bradlev,  98  Tex.  230, 
82  S.  W.  1031.  '  68:  509 

75.  A  statute  forbidding  the  forfeiture  by 
local  corporations  of  insurance  policies  for 


CONFLICT  OF  LAWS,  L  b,  4. 


618 


nonpayment  of  premiums,  until  a  certain 
time  after  notice  of  the  amount  and  date  of 
payment  has  been  mailed  to  the  insured  at 
his  last  known  postoffice  address  "in  this 
state,"  does  not  apply  to  policies  issued  in 
other  states,  unless  expressly  made  appli- 
able  by  the  terms  of  the  policy.  Id. 

76.  Policies  of  insurance  made  and  execut- 
e<l  in  New  York,  reciting  that  they  are  pay- 
able there,  and  that  premiums  are  to  be 
paid  there,  and  containing  a  waiver  of  the 
service  of  notice.^!  required  by  statute,  which 
reference  is  to  a  New  York  statute,  are  to  be 
governed  by  the  laws  of  that  state,  where 
the  applications  therefor  recite  that  they 
are  subject  to  the  laws  of  New  York,  al- 
though they  are  made  in  another  state  where 
the  applicant  resides  and  where  the  policies 
are  delivered  to  him  by  an  agent  of  the  in- 
surer upon  payment  of  premiums.  Mutual 
L.  Ins.  Co.  V.  Dinglev,  40  C.  C.  A.  459,  100 
Fed.  408,  *  %  49:  132 
Extensions  after  forfeiture, 

77.  Life  policies  issued  by  foreign  com- 
panies, which  do  not  take  effect  until  they 
are  delivered  to  the  insured  and  premium 
collected  from  him  in  the  state,  are  subject 
to  Mo.  Eev.  Stat.  1879,  §§  5983,  5985,  pro- 
viding for  extensions  of  the  policy  for  the 
full  sum  for  such  time  as  three  fourths  of 
the  net  revenue  will  pay  for,  in  case  of  de- 
fault after  two  full  annual  premiums  have 
been  paid,  notwithstanding  proAMsions  tor 
forfeiture  in  the  policies.  Cravens  v.  New 
York  L.  Ins.  Co.  148  Mo.  583,  50  S.  W.  519, 

53:  305 
Adjustment  of  claims. 

78.  The  right  to  contract  for  the  adjust- 
ment of  a  claim  on  an  insurance  policy  for- 
feited for  nonpayment  of  premiums,  accord- 
ing to  the  laws  of  the  insurer's  domicil,  al- 
though the  insurance  is  upon  the  life  of  a 
person  residing  in  another  state  where  the 
contract  is  made,  is  accorded  by  a  statute  of 
the  latter  state  providing  for  such  adjust- 
ment, but  making  its  provisions  inapplicable 
to  policies  issued  by  foreign  companies  au- 
thorized to  do  business  in  the  state  where 
the  laws  of  their  domicil  provide  for  con- 
tinued insurance  upon  svich  forfeiture. 
Niehols  v.  Mutual  Life  Ins.  Co.  176  Mo.  355, 
75  S.  W.   664,  62:  657 

79.  Leaving  it  optional  with  insured  as  to 
the  kind  of  policy  he  will  take  in  the  ad- 
justment of  a  claim  upon  a  policy  forfeited 
for  nonpayment  of  premium  does  not  pre- 
vent the  application  of  a  proviso  of  the  local 
statute  making  inapplicable  its  provisions  as 
to  such  adjustment,  where  the  laws  of  the 
state  of  the  insurer's  domicil,  with  respect 
to  which  the  parties  have  agreed  the  con- 
tract shall  be  construed,  provide  for  the 
methods  of  adjustment  which  the  local  stat- 
ute requires  to  make  its  provisions  inappli- 
cable. Id. 
Extent  of  recovery. 

For  Editorial  Notes,  see  infra.  III.  §  4. 

80.  The  provision  of  Wis.  Rev.  Stat.  § 
1943,  conclusively  establishing  the  value  of 
insured  real  property  when  wholly  de- 
stroyed, at  the  amount  of  insurance  written 
in  the  policy,  applies  to  contracts  made  in 

L.R.A.  Dig.— 33. 


other  states  as  well  as  in  Wisconsin,  where 
the  real  property  is  situated  in  that  state. 
Sevk  V.  Millers  Nat.  Ins.  Co.  74  Wis.  67, 
41  N.  W.  443,  3:  523 

Rights  of  claimants  under  policy. 
For  Editorial  Notes,  see  infra.  III.  §  4. 

81.  The  law  of  the  state  in  which  a  con- 
tract of  life  insurance  is  made  by  a  resident 
thereof  will  control  as  to  the  rights  of  his 
creditors  and  beneficiaries  instead  of  the  law 
of  another  state  in  which  the  beneficiaries 
reside,  or  of  another  state  in  which  the 
insurance  company  is  located  and  the  policy 
payable.  Roberts  v.  Winton,  100  Tenn.  484. 
45S.  W.  673,  41:275 

82.  The  rights  of  claimants  of  life  insur- 
ance are  to  be  determined  by  the  law  of  the 
state  in  which  the  applicant  resided,  made 
his  application,  and  received  the  policy,  al- 
though the  application  was  sent  by  an  agent 
to  the  home  office  of  the  company  in  another 
state,  where  it  was  accepted  and  the  policy 
returned  to  the  agent,  and  there  was  a 
stipulation  that  the  premiums  and  the  sum 
insured  were  to  be"  paid  in  that  state.  Mil- 
lard V.  Brayton,  177  Mass.  533,  59  N.  E.  436, 

52:  117 

83.  The  words  'Tieirs  at  law,"  in  a  benefit 
certificate  made  in  Massachusetts  by  inhabi- 
tants of  that  state,  must  be  construed  in  an- 
other state  as  they  would  be  in  Massachu- 
setts. Mullen  V.  Reed,  64  Conn.  240,  29  Atl. 
478,  24:  664 

4.  Carriers'  Contracts. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

84.  The  interpretation  and  validity  of  a 
contract  for  carriage  over  a  railroad  are  to 
be  governed  by  the  law  of  the  state  where 
the  contract  is  made.  Davis  v.  Chicago,  M. 
&  St.  P.  R.  Co.  93  Wis.  470,  67  N.  W.  16, 

33:  654 

85.  The  law  of  a  state  in  which  a  contract 
for  carriage  is  made  controls  as  to  its  na- 
ture, interpretation,  and  effect  if  it  is  en- 
tire and  indivisible,  although  it  is  to  be  per- 
formed partly  in  that  state  and  partly  in 
another.  Illinois  C.  R.  Co.  v.  Beebe,  174  111. 
13,  50  N.  E.   1019,  43:  210 

86.  A  contract  in  a  bill  of  lading  for  a 
shipment  from  Boston  to  Atlanta,  although 
it  would  not  have  been  a  good  contract  if 
made  in  Georgia,  not  being  intended  to  take 
effect  wholly  in  Georgia,  can  be  enforced  in 
that  state  if  it  is  a  good  contract  in  Massa- 
chusetts. Western  &  A.  R.  Co.  v.  Exposi- 
tion Cotton  Mills,  81  Ga.  522,  7  S.  E.  916, 

2:  102 

87.  A  contract  for  transportation  from 
Liverpool  to  New  York,  made  in  England  be- 
tween a  citizen  of  the  United  States  and  a 
British  shipowner,  is  an  English  contract 
governed  by  the  laws  of  England,  in  the  ab- 
sence of  anything  to  show  an  intent  that  it 
is  to  be  controlled  by  the  laws  of  the  United 
States.  Potter  v.  The  Majestic,  20  U.  S. 
App.  503,  9  C.  C.  A.  161,  60  Fed.  624,  23:  74G 
[Rev'd  by  the  Supreme  Court  of  the  Unit- 
ed States  in  166  U.  S.  375,  41  L.  ed.  1039, 
17  Sup.  Ct.  Rep.  597.] 


614 


CONFLICT  OF  LAWS,  L  b,  5. 


88.  The  law  of  the  state  in  which  a  con- 
tract of  interstate  transportation  was  made, 
and  in  which  the  performance  begins,  can- 
Tiiot  govern  the  contract  so  far  as  it  con- 
flicts with  the  Act  of  Congress  to  Regulate 
Commerce.  Southern  R.  Co.  v.  Harrison,  119 
Ala.  539,  24  So.  552,  43:  385 

89.  A  contract  safely  to  carry  property 
from  one  state  to  another,  and  deliver  it  at 
a  point  in  the  latter,  is  broken  in  the  former 
state  when  a  fire  consumes  the  property 
there  so  as  to  prevent  the  further  perform- 
ance of  the  contract.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Druien,  118  Ky.  237,  80  S.  W. 
778,  66:275 

90.  A  special  contract  between  a  railroad 
company  and  a  shipper,  for  transporting  a 
car  load  of  live  stock  and  emigrant  movables 
to  a  point  in  another  state  is  to  be  inter- 
preted according  to  the  law  of  the  state  in 
which  the  contract  was  made.  Meuer  v. 
Chicago,  M.  &  St.  P.  R.  Co.  5  S.  D.  568,  59 
N.  W.  945,  25:  81 
Limiting  liability. 

Conclusiveness  of  Judgment  of  Other  State 

as  to,  see  Judgment,  346. 
See  also  Commerce,  65,  68. 
For  Editorial  Notes,  see  infra.  III.  §  2. 

91.  In  case  of  a  breacb  of  a  carriage  con- 
tract in  a  state  whose  Constitution  prohib- 
its the  carrier  from  contracting  to  limit  its 
common-law  liability,  the  carrier  cannot,  in 
the  courts  of  that  state,  have  the  benefit  of  a 
contract  valid  where  made  in  another  state 
limiting  such  liability.  Adams  Exp.  Co.  v. 
Walker,  26  Ky.  L.  Rep.  1025,  83  S.  W.  106. 

67:  412 

92.  The  courts  of  a  state  whose  public  pol- 
icy forbids  the  limitation  of  a  carrier's  lia- 
bility by  contract  will  not  enforce  a  con- 
tract for  such  limitation  as  to  property  neg- 
ligently injured  within  the  state  while  being 
shipped  on  through  bill  of  lading  into  the 
state  from  another,  where  the  contract  was 
made  and  where  it  is  valid. — at  least  where 
the  contract  is  not  entire,  but  the  portion  to 
be  performed  within  the  state  is  a  separate 
contract  upon  a  separate  consideration. 
Hughes  V.  Pennsylvania  R.  Co.  202  Pa.  222, 
51  Atl.  990,  63:  513 

93.  A  contract  to  carry  a  passenger,  ex- 
empting the  carrier  from  liability  even  for 
negligence,  if  it  was  valid  where  it  was 
made,  will  be  upheld  by  the  courts  of  a  state 
in  which  such  contracts  are  held  void  as 
against  public  policv.  Fonseea  v.  Ciinard  R. 
S.  Co.  153  Mass.  553,  27  N.  E.  665.        12:  340 

94.  A  contract  of  carriage  exempting  the 
carrier  from  liability  for  negligence,  which 
is  valid  under  the  laws  of  the  state  where  it 
is  made  and  is  to  be  whollj*  performed,  the 
alleged  breach  occurring  in  that  state,  is 
enforceable  in  Pennsylvania  courts,  although 
such  a  contract  would  be  invalid  imder  the 
law  of  Pennsylvania.  Forepaugh  v.  Dela- 
ware, L.  &  W.  R.  Co.  128  Pa.  217,  18  Atl.  503. 

5:  508 

95.  The  courts  of  one  state  will  uphold 
a  contract  made  in  another  where  it  was 
valid,  limiting  the  liability  of  a  carrier  for 
loss  of  property  in  its  possession  for  trans- 
portation, by   fire  not  caused  by  its  negli- 


[gence,  where  the  loss  occurred  in  the  state 
I  where  the  contract  was  made,  although  the 
:  shipment  was  to  extend  into  the  state 
j  where  the  action  is  brought,  by  the  Consti- 
j  tution   of   which    the   contract   would   have 

been  invalid.     Cleveland,  C.  C.  &  St.  L.  R. 

Co.  V.  Druien,  118  Ky.  237,  80  S.  W.  778, 

66:275 

96.  The  prohibition  against  contracts  by 
common  carriers  for  relief  against  their 
common-law  liability,  which  is  contained  in 
Ky.  Const.  §  196,  does  not  make  it  unlaw- 
ful for  a  railroad  corporation  created  by  the 
authorities  of  that  state  to  make  a  contract 
in  another  state  limiting  its  liability  for 
a  transportation  of  goods  between  points 
in  other  states,  and  which  is  to  be  per- 
formed entirely  outside  of  the  state  of  Ken- 
tucky. Tecumseh  Mills  v.  Louisville  &  N. 
R.  Co.   108  Ky.  572,  57  S.  W.  9,       49:  557 

5.  As  to  Telegrams. 

97.  The  place  from  which  a  telegram  is 
sent  to  another  state  is  the  place  of  the  con- 
tract made  by  the  message,  in  the  absence 
of  anything  therein  to  the  contrary.  Til- 
linghast  v.  Boston  &  P.  R.  Lumber  Co.  39 
S.  C.  484,  18  S.  E.  120,  22:  49 

98.  A  contract  relating  to  what  is  to  be 
done  in  Massachusetts,  dated  and  signed 
there  and  sent  to  a  foreign  country  for 
acceptance,  which  is  to  be  signed  by  tele- 
gram sent  to  the  signers  there,  is  a  Mas- 
sachusetts contract,  governed  by  its  laws. 
Meyer  v.  Estes,  164  Mass.  457,  41  N.  E.  683, 

32:283 

99.  A  contract  made  in  Iowa  for  the 
transmission  of  a  telegram  from  a  place  in 
that  state  to  a  place  in  Missouri  is  governed 
by  the  laws  of  Iowa  making  the  proprie- 
tor of  the  telegraph  liable  for  all  mistakes 
in  transmission.  Reed  v.  Western  U.  Teleg. 
Co.  135  Mo.  661.  37  S.  W.  904,  34:  492 

100.  The  validity  and  interpretation  of 
the  contract,  as  well  as  the  rule  measuring 
the  damages  arising  upon  its  breach  and 
the  company's  liability  therefor,  are  to  be 
determined  by  the  laws  of  the  state  where 
a  telegram  is  filed  for  transmission  in  case 
the  points  of  inception  and  termination  are 
in  different  states.  Hancock  v.  Western  U. 
Teleg.  Co.  137  N.  C.  497,  49  S.  E.  952, 

69:  403 

101.  That  a  contract  for  transmission  of 
a  telegram  is  made  in  a  state  ihe  laws  of 
which  do  not  allow  damages  for  mental  an- 
guish for  its  breach  will  not  prevent  a  re- 
covery of  such  damages  for  neglect  to 
promptly  deliver  it  in  a  state  whose  stat- 
utes make  such  neglect  a  public  offense, 
subjecting  the  offender  to  liability  for  the 
injuries  thereby  caused,  and  whose  courts 
permit  the  consideration  of  mental  anguish 
in  fixing  the  damages.  Gray  v.  Western  U. 
Teleg.    Co.    108   Tenn.   39,   64   S.   W.    1063, 

56:  301 

102.  The  interpretation  by  the  courts  of 
the  state  where  it  is  passed,  of  a  statute 
requiring  the  transmission  of  telegrams 
upon  payment  of  the  usual  charges  accord- 
ing   to    the    regulations    of    the    company. 


CONFLICT  OF  LAWS,  I.  b.  6. 


515 


as  authorizing  a  provision  in  the  contract 
exempting  the  company  from  liability  for 
mistakes  in  the  absence  of  payment  of  a 
small  additional  fee  to  insure  accuracy,  as 
binding  in  other  states,  so  that  recover}' 
cannot  be  had  there,  in  the  absence  of  such 
payment,  for  a  mistake  in  transmitting  a 
■  telegram  sent  under  a  contract  containing 
such  provision  made  in  the  former  state, 
although  the  courts  in  which  the  action  is 
brought  would  not  so  have  interpreted  the 
statute.  Shaw  v.  Postal  Teleg.  Cable  Co. 
79  Miss.   670,  31   So.  222,  56:  486 

103.  If,  under  the  statutes  of  a  state 
where  a  contract  for  transmission  of  a  ci- 
pher telegram  is  made,  a  provision  in  the 
contract  is  valid  which  exempts  the  com- 
pany from  liability  for  mistakes  unless  a 
small  additional  fee  is  paid  to  insure  accu- 
racy, liability  for  mistakes  cannot  be  en- 
forced in  another  state  in  the  absence  of 
such  payment,  although  by  its*l^ws  the  pro- 
vision would  be  invalid.  Id. 


6.  Of  Married  Man  or  Woman. 


a.  Married  Man. 

104.  The  validity  of  a  sale  by  a  husband 
to  his  wife,  of  land  situated  in  Louisiana,  is 
to  be  determined  by  the  law  of  Louisiana. 
Rush  V.  Landers,  107  La.  549,  32  So.  95, 

57:  353 

105.  A  covenant  by  a  married  man,  valid 
in  the  state  in  which  it  was  niade,  to  sur- 
render all  his  marital  rights  in  land  of  his 
wife  situated  in  Massachusetts,  will  be  en- 
forced in  the  latter  state.  Poison  v. 
Stewart,  167  Mass.  211,  45  N.  E.  737. 

36:  771 

106.  The  validity  of  a  covenant  made  in 
North  Carolina,  in  which  state  the  parties 
are  domiciled,  by  a  married  man  to  surren- 
der all  his  mai-ital  rights  in  certain  land  of 
his  wife  located  in  Massachusetts,  in  con- 
sideration of  his  wife's  releasing  her  dower 
interest  in  the  husband's  lands,  after  she 
has  been  made  a  free  trader,  is  governed  by 
the  law  of  North  Carolina.  Id. 

h.  Married  Woman. 

As  to  Release  of  Right    of   Action    for    In- 
juries, see  Release,  4. 
See  also  infra,  326. 
For  Editorial  Notes,  see  infra.  III,  §  5. 

107.  Engagements  which  coverture  pre- 
vents a  woman  from  making  herself  she 
cannot  make  through  the  interposition  of  an 
agent  whom  she  assumes  to  constitute  as 
such  in  the  state  of  her  domicil.  Freeman's 
Appeal,  68  Conn.  533,  37  Atl.  420,        37:  452 

108.  A  married  Avoman  sued  in  the  state 
of  her  domicil  may  avail  herself  of  the  pro- 
tection of  its  statute  allowing  her  to  plead 
coverture  as  a  defense  to  her  contracts, 
when  sued  there  on  a  note  delivered  and 
payable  in  another  state  where  such  de- 
fense would  not  be  recognized.     First  Nat. 


Bank  v.  Shaw,  109  Tenn.  237,  70  S.  W.  807, 

59:  498 

109.  The  validity  of  an  order  drawn  by  a 
married  woman  upon  the  executor  of  her 
father's  estate  must  be  determined  by  the 
laws  of  her  domicil,  when  she  signs  the  in- 
strument and  it  is  accepted  by  the  executor 
in  that  state,  although  it  is  dated  in  an- 
other state  and  after  its  execution  it  is 
mailed  by  an  agent  of  the  payee  of  the  order 
to  such  payee  in  another  state.  Freeman's 
Appeal,  68  Conn.  533,  37  Atl.  420,  37:  452 
Sale  of  real  property. 

For  Editorial  Notes,  see  infra.  III.  §  5. 

110.  The  law  of  the  place  where  the  land 
is  located,  respecting  the  privy  examination 
of  a  married  woman,  and  not  that  of  her 
residence,  will  govern  in  determining  the 
validity  of  her  deed  of  real  estate.  Smith 
V.  Ingram,  130  N.  C.  100,  40  S.  E.  984, 

61 :  878 

111.  A  married  woman  authorized  by  de- 
cree of  court  to  buy,  sell,  and  convey  both 
real  and  personal  property  as  a  feme  sole, 
has  no  power  to  convey  real  property  in 
another  state,  to  which  she  subsequently  re- 
moves, without  the  joinder  of  her  husband, 
when,  by  the  laws  of  that  state,  a  married 
woman  cannot  lawfully  convey  property 
without  the  joinder  of  her  husband.  Wall- 
ing V.  Christian  &  C.  Grocery  Co.  41  Fla. 
479,  27  So.  46,  4V :  608 

112.  The  status  of  a  married  woman  in 
one  state  where  she  is  emancipated  from  the 
disabilities  of  coverture  cannot  dispense 
with  or  in  any  manner  affect  the  laws  of 
another  state  in  which  her  real  estate  is 
situated,  with  reference  to  a  conveyance 
thereof,  or  the  prerequisites  for  registration 
of  deeds,  as  against  creditors.  Robinson  v. 
Queen,  87  Tenn.  445,  11  S.  W.  38,  3:  214 
Sale  of  goods. 

113.  A  contract  for  the  sale  of  goods, 
made  by  an  order  given  by  a  married  wom- 
an in  North  Carolina  to  a  firm  in  Maryland, 
and  its  shipment  of  the  goods  in  Maryland, 
is  a  Maryland,  and  not  a  North  Carolina, 
contract.  Armstrong  v.  Best,  112  N.  C.  59, 
17  S.  E.  14,  26:  188 
Contracts  of  suretyship. 

113a.  A  contract  for  the  purchase  of 
goods,  made  in  another  state  where  it  is 
valid,  by  a  married  woman  resident  in 
North  Carojina,  where  the  common-law  dis- 
ability of  married  women  still  obtains,  and 
their  promises  under  the  policy  of  the  state 
are  void,  and  no  power  exists  to  proceed  to 
judgment  against  them  in  personam, — will 
not  be  enforced  in  the  latter  state.  Arm- 
strong V.  Best,  112  N.  C.  59,  17  S.  E.  14, 

25:  188 

114.  The  statute  of  New  Jersey  that 
regulates  the  right  of  married  women  to 
make  contracts  of  suretyship  is  not  a 
declaration  of  a  public  policy  that  closes 
the  courts  of  that  state  to  rights  of  action 
arising  in  other  jurisdictions  where  the  law 
is  different.  Thompson  v.  Taylor  (N.  J.  Err. 
&  App.)  66  N..J.  L.  253,  49  Atl.  544. 

54:  58.) 

115.  A  contract  of  suretyship  against  a. 
married  woman,  which  is  valid  in  the  state 


516 


CONFLICT  OF  LAWS,  I.  c. 


where  made,  is  not  unenforceable  in  another 
state,  as  violative  of  its  public  policy,  mere- 
ly because  its  statutes  forbid  her  to  bind 
herself  bv  such  a  contract.  Garrigue  v. 
Keller,  164  Ind.  676,  74  X.  E.  523,         69:  870 

116.  That  a  note  for  the  payment  of 
which  a  married  woman  becomes  surety  is 
made  payable  in  a  state  where  such  contract 
is  invalid  will  not,  although  the  suit  is 
brought  in  that  state,  defeat  her  liability  if 
the  contract  was  valid  at  her  domicil,  where 
it  was  executed.  Id. 

117.  The  written  promise  of  a  married 
woman  domiciled  in  New  Jersey,  to  pay  a 
sum  of  money  to  the  order  of  her  husband, 
signed  by  her  at  her  domicil,  and  carried  by 
him,  with  her  acquiescence,  to  New  York, 
and  there  indorsed,  and  delivered  in  ex- 
change for  other  notes  of  like  import,  is  a 
contract  made  in  the  state  of  New  York; 
and  the  capacity  of  the  wife  to  bind  herself 
by  a  contract  of  suretyship  is  to  be  de- 
termined by  the  law  of  that  state,  so  that 
if  valid  in  the  state  of  New  \ork  it  may 
be  enforced  against  her  in  New  Jersey,  al- 
though the  contract,  if  made  there,  would 
be  void.  Thompson  v.  Taylor  (N.  J.  Err.  & 
App.)  66  N.  J.  L.  253,  49  Atl.  544,        54:  585 

118.  A  note  executed  by  a  married  woman 
as  surety  for  a  firm  of  which  her  husband 
is  a  member,  in  a  state  where  the  makers 
reside  and  where  the  note  is  payable,  if 
valid  ill  that  state,  may  be  enforced  against 
her  in  the  courts  of  another  state,  although 

.  if  made  in  the  latter  state  it  would  have 
been  void.  Robinson  v.  Queen,  87  Tenn. 
445,  11  S.  W.  38,  3:  214 

Guaranty. 

119.  A  guaranty  executed  by  a  married 
woman  in  the  state  of  her  residence,  where 
the  law  does  not  give  her  capacity  to  exe- 
cute it,  does  not  become  valid  on  its  delivery 
in  another  state  by  her  agent  whose  agency 
is  created  in  the  state  of  her  residence. 
Freeman's  Appeal,  68  Conn.  533,  37  Atl.  420. 

37:452 

c.    Status;    Marriage;    Domestic   Relations; 
Legitimation. 

As  to  Contracts  of  Married  Man  or  Woman, 

see  supra,  I.  b,  6. 
Effect    of    Married    Woman's    Removal    to 

Other  State  on  Rights  of  Trustee,  see 

Trusts    124. 
See  also  infra,  i67,  282,  283,  304-308. 
For  Editorial  Notes,  see  infra,  HI.  §  20. 

120.  The  status  given  a  man  by  the  laws 
of  his  domicil  will  not  be  recognized  in 
other  jurisdictions  when  it  is  constructed  on 
principles  contrary  to  those  generally  recog- 
nized, or  to  those  which  can  be  admitted  by 
the  laws  of  the  forum.  Adams  v.  Adams. 
1.54  Mass.  290,  28  N.  E.  260,  13:275 
Marriage. 

Presumption  as  to  Evasion  of  Law  against 
Remarriage  of  Divorced  Person,  see 
Evidence,  349. 

See  also  infra.  245-247. 

For  Editorial  Notes,  see  infra,  III.  §  18. 
121.  The  validity  of  a  marriage  is  to  be 


determined  by  the  law  of  the  place  where 
the  marriage  is  solemnized;  and  a  marriage 
legal  where  solemnized  is  valid  everywhere. 
Hills  v.  State,  61  Neb.  589,  85  N.  W.  836, 

57 :  155 

122.  A  marriage  valid  in  the  state  in 
which  it  is  contracted  will  be  recognized  as 
valid  in  another  state  if  it  does  not  contra- 
vene the  declared  policy  of  the  positive  law 
of  the  latter,  although  it  may  have  been 
made  without  the  form  or  ceremony  re- 
quired in  the  latter  state.  Jackson  v.  Jack- 
son, 82  Md.  17,  33  Atl.  317,  34:  773 

123.  A  minor's  marriage  valid  in  the  state 
where  it  is  made  is  not  invalid  in  the  state 
of  his  residence  because  of  the  fact  that  he 
went  out  of  the  state  to  be  married,  for  the 
sole  purpose  of  evading  a  statutory  pro- 
vision requiring  his  father's  consent.  Com. 
V.  Graham,  157  Mass.  73,  31  N.  E.  706, 

16:  578 

124.  All  marriages  solemnized  in  another 
state,  by  parties  intending  at  the  time  to  re- 
side in  Georgia,  have  the  same  legal  effect 
as  if  solemnized  in  the  latter  state;  and 
parties  residing  in  Georgia  cannot  evade  the 
provisions  of  its  laws  as  to  marriage  by 
going  into  another  state  for  the  solemniza- 
tion of  the  ceremony.  State  v.  Tutty,  41 
Fed.  753,  7:  50 

125.  'V\Tiere  the  statutory  law  is  silent  as 
to  the  effect  of  marriage  between  persons 
domiciled  in  the  state,  and  who  leave  it 
with  the  purpose  of  solemnizing  the  mar- 
riage elsewhere,  to  evade  such  laws,  but  in- 
tending to  return  and  live  therein,  the  mar- 
riage may  be  upheld  where  the  inhibition 
relates  to  form,  ceremony,  or  qualifications 
depending  on  age  or  like  condition.  Id. 

126.  Where  the  state  has  enacted  legis- 
lation declaratory  of  the  effect  of  mar- 
riages extraterritorial,  of  its  citizens  who 
seek  to  evade  its  positive  policy  and  penal 
laws,  the  statute  affords  the  rule  of  de- 
cision. Id. 

127.  The  marriage  of  a  ward,  solemnized 
in  a  sister  state  where  it  is  valid,  is  not  void 
because  no  license  was  procured  with  the 
consent  of  the  guardian,  as  required  by  the 
laws  of  his  domicil,  nor  because  such  laws 
render  void  all  his  contracts.  Ex  parte 
Chace,  26  R.  L  351,  58  Atl.  978,  69:  493 

128.  The  marriage  of  a  ward,  valid  where 
made  in  a  sister  state,  must  be  regarded  as 
valid  at  his  domicil.  although  it  would  not 
have  been  so  had  it  been  solemnized  there 
because  of  statutory  limitation  of  his  right 
to  contract.  Id. 

129.  The  law  of  one  state  declaring  that 
cohabitation  for  a  period  of  years  is  proof 
of  marriage  is  not  effective  in  another  state 
to  dissolve  a  former  marriage  of  one  of  the 
parties  to  a  person  residing  there.  Re 
Newman's  Estate,  124  Cal.  688,  57  Pac.  686, 

45:  780 

130.  A  marriage  on  the  high  seas,  where 
there  is  no  law  regulating  the  manner  of 
performinir  the  same,  entered  into  by  the 
parties  with  the  avowed  purpose  of  evading 
the  laws  of  the  state  of  their  residence,  is 
not  within  Cal.  Civ.  Code,  §  63,  validating 
all  marriages  without  the  state  which  would 


COi^FLlOT  OF  LAWS,  I.  c. 


517 


'be  valid  "by  the  laws  of  the  country  in 
which  the  same  were  contracted."  Norman 
V.  Norman,  121  Cal.  620,  54  Pac.  143, 

42:  343 

131.  The  claim  that  marriage  is  a  natural 
right,  of  which  no  government  will  allow  its 
subjects,  wherever  abiding,  to  be  deprived, 
if  they  are  sojourning  in  a  place  where  there 
is  no  way  under  the  local  law  by  which  they 
can  enter  into  a  valid  marriage,  will*  not 
avail  at  the  residence  of  the  parties  to  sus- 
tain a  marriage  on  the  high  seas,  where 
there  is  no  law  regulating  the  subject,  if 
the  parties  went  there  to  evade  the  laws  of 
their  residence.  Id. 

132.  The  marriage  in  another  state  where 
it  is  valid,  of  a  divorced  person  incapable  of 
remarrying  by  the  law  of  his  domicil,  will 
not  be  held  void  under  the  law  of  his  domi- 
cil unless  the  statute  expressly  so  provides, 
although  he  went  outside  the  state  for  the 
express  purpose  of  evading  the  1»w,  and  im- 
mediately returned.  State  v.  Shattuck,  69 
Vt.  403,  38  Atl.  81,  40:  428 

133.  The  marriage  in  another  state,  where 
it  is  lawful,  of  a  divorced  man  and  his  para- 
mour, who  go  there  to  evade  the  law  of 
their  domicil,  which  prohibits  their  marriage 
during  the  life  of  the  former  wife,  is  not 
valid  in  the  latter  state.  Re  Stull,  183  Pa. 
625,  39  Atl.  16,  39:  539 

134.  Statutory  prohibition  to  remarry 
within  a  certain  time  after  divorce  has  no 
force  out  of  the  state  in  which  the  decree  is 
granted.  Phillips  v.  Madrid,  83  Me.  205,  22 
Atl.  114,  12:  862 

135.  The  Maine  statute  prohibiting  the 
guilty  party  in  a  divorce  suit  to  remarry 
applies  only  to  divorces  granted  by  the 
courts  in  that  state.  Id. 

136.  A  marriage  contracted  in  another 
state  by  a  resident  of  Oregon,  who  has  been 
divorced  in  that  state  by  a  decree  from 
which  there  is  yet  time  to  take  an  appeal, 
is  absokitely  void  under  1  Hill's  (Or.)  Ann. 
Laws,  §  503,  providing  that  a  divorce  de- 
cree shall  terminate  the  marriage  "except 
that  neither  party  shall  be  capable  of  con- 
tracting marriage  with  a  third  person"  until 
the  expiration  of  the  period  allowed  for  an 
appeaL  McLennan  v.  McLennan,  31  Or.  480. 
50  Pac.  802,  38:  863 

137.  A  marriage  valid  where  contracted, 
in  another  state,  between  a  man  and  one  for 
adultery  with  whom  he  was  divorced  in  a 
state  to  which  he  returns  immediately  after 
the  marriage  and  while  his  former  wife  is 
still  living,  will  not  be  recognized  by  the 
courts  of  the  latter  state  to  the  extent  of 
permitting  him  to  sue  for  her  property, 
where  the  statutes  prohibit  marriage  be- 
tween a  divorced  person  and  his  paramour, 
although  in  contracting  the  marriage  there 
was  no  intent  to  evade  the  laws  of  the  state 
where  the  divorce  was  granted.  State  use 
of  Newman  V.  Kimbrough  (Tenn.  Ch.)  59  S. 
W.  1001,  .      oz:  668 

138.  Disobedience  of  a  provision  in  a  de- 
cree of  divorce  prohibiting  the  offender 
under  penalty  from  marrying  again  during 
the  life  of  the  former  wife  will  not  make 
bis   subsequent    marriage   in   another  state 


with  a  woman  who  was  ignorant  of  such 
prohibition  void;  but  the  marriage  will  be 
recognized  for  the  protection  of  the  innocent 
wife  and  her  children.  Crawford  v.  State, 
73  Miss.  172,  18  So.  848,  35;  224 

139.  The  prohibition  of  the  statute  of 
New  York  to  the  effect  that  no  second  or 
other  subsequent  marriage  shall  be  con- 
tracted by  any  person  during  the  lifetime  of 
any  former  husband  or  wife  of  such  person, 
in  case  the  former  marriage  be  annulled  or 
dissolved  on  the  ground  of  adultery,  has  no 
extraterritorial  effect,  being  a  penal  statute; 
and  it  cannot  be  given  the  effect  of  annul- 
ling a  contract  of  marriage  between  per- 
sons at  the  time  residing  abroad,  from  one 
of  whom  a  divorce  had  been  obtained  in  an- 
other state  for  adultery,  notwithstanding  it 
was  solemnized  in  the  city  and  state  of 
New  York, — the  contracting  parties  an- 
nouncing their  intention  to  be  to  thereafter 
reside  in  Louisiana,  and  afterwards  actual- 
ly residing  there.  Re  Hernandez's  Succes- 
sion, 46  La.  962,  15  So.  461,  24:  831 
Relations  between  husband  and  wife  gen- 
erally. 

See  also  infra,  199,  210. 

For  Editorial  Notes,  see  infra,  III.  §  13. 

140.  A  wife  is  authorised  to  acquire  a 
separate  domicil,  where  the  conduct  of  the 
husband  justifies  her  in  leaving  him,  and 
furnishes  grounds  for  a  divorce;  a"d  the 
law  of  the  domicil  so  acquired  will  de- 
termine her  marital  status.  Benton's  Suc- 
cession, 106  La.  494,  31  So.  123,  59:  135 

141.  Whether  a  husband  becomes  the 
debtor  of  his  wife  by  receiving  and  using 
money  which  she  has  received  from  her  first 
husband  must  be  determined  by  the  law  of 
their  domicil.  Rush  v.  Landers,  107  La. 
549,  .32  So.  95,  57:  353 

142.  A  foreign  citizen  marrying  a  Mis- 
souri woman  in  that  state  does  not,  in 
view  of  the  Missouri  statutes,  acquire  an 
absolute  title  to  her  personal  property 
located  there,  which  will  be  enforced  by  the 
Missouri  courts,  although  he  might  have 
acquired  such  title,  under  the  laws  of  his 
domicil,  to  property  located  there,  bad  the 
marriage  been  solemnized  there.  Re  Mc- 
Pherson,  163  Mo.  493,  63  S.  W.  726,    52:  420 

143.  The  effect  of  a  divorce  granted  in  an- 
other state,  upon  the  divorced  wife's  right 
of  dower,  must  be  determined  by  the  laws 
of  the  state  where  tiie  lands  are  situated. 
Van  Cleaf  v.  Burns,  133  N.  Y.  540,  30  N.  E. 
661,  15:  542 
Separation  or  divorce. 

As  to  Remarriage  of  Divorced  Person,  see 
supra,  132-135. 

Conclusiveness  and  Effect  of  Decree  Ren- 
dered in  Other  State,  see  Judgment,  IV. 
b,2. 

Divorce  granted  in  Foreign  Country,  see 
Judgment,  336,  337. 

See  also  supra,  143;  infra,  329. 

For  Editorial  Notes,  see  infra,  m.  §  19. 

144.  A  contract  for  a  final  separation  of 
husband  and  wife,  and  procurement  of  a 
divorce,  will  not  be  enforced  by  the  courts 
of  a  state  under  whose  laws  it  is  invalid,  al- 


518 


CONFLICT  OF  LAWS,  L  d,  1. 


though  it  was  valid  where  made.    Palmer  v. 
Palmer,  26  Utah,  31,  72  Pac.  3,  61 :  641 

145.  An  agreement  for  separation,  entered 
into  by  a  husband  and  wife  in  a  state  where 
they  are  temporarily  abiding,  for  causes 
arising  there,  and  where  it  is  partly  per- 
formed, will  be  interpreted  by  the  law  of 
such  state  when  before  its  courts,  and  not 
by  that  of  the  state  of  their  doniicil,  if  by 
the  latter  it  would  be  invalid;  and  it  may 
be  legally  enforced, — at  least  if  no  attempt 
was  made  to  evade  the  laws  of  the  latter 
state,  and  the  contract  would  not  have  been 
criminal  there.  Carev  v.  Maekev,  82  Me. 
516,  20  Atl.  84,  '       •  9:  113 

146.  A  judgment  of  divorce  in  favor  of  a 
wife,  rendered  by  a  court  of  a  state  in 
which  she  has  acquired  a  separate  domicil, 
and  valid  where  rendered,  is  valid  in  other 
jurisdictions  without  regard  to  the  place  of 
marriage,  the  offense,  or  the  domicil  of  the 
husband.  Benton's  Succession,  106  La.  494, 
31  So.  123,  59:  135 

147.  A  divorce  granted  in  a  foreign  state, 
which  recites  that  all  the  facts  necessary  to 
the  jurisdiction  of  the  court  have  been 
established,  and  presents  upon  its  face  no 
intrinsic  nullity,  cap  only  be  attacked  on 
proof  of  extrinsic  facts  undermining  the 
jurisdiction,  and  will  therefore  serve  as  a 
basis  for  a  presumption  of  good  faith  with 
respect  to  a  subsequent  marriage.  Id. 

148.  Although  in  Louisiana  a  marriage 
will  not  be  dissolved  on  grounds  antedating 
the  establishment  of  the  marital  domicil  in 
the  state,  it  does  not  follow  that  its  courts 
will  not  recognize  the  validity  of  a  divorce 
granted  upon  such  groimds  in  another  state. 

Legitimation. 

For  Editorial  Notes,  see  infra.  III.  §  20. 

149.  The  law  of  the  domicil  of  the  father, 
and  not  that  of  the  mother  or  of  the  child, 
governs  the  question  of  the  legitimation  of 
a  bastard  child  by  the  father's  acknowledg- 
ment and  other  arts,  the  same  as  in  case 
of  subsequent  marriage.  Blvthe  v.  Ayres, 
96  Cal.  532,  31  Pac.  915,  '  19:  40 

150.  Legitimation  of  a  bastard  by  the 
laws  of  his  parents'  domicil  through  their 
marriage  during  his  minority  fixes  his 
status  so  that  he  is  legitimate  everywhere. 
Fowler  v.  Fowler.  131  N.  C.  169,  42  S.  E. 
563,  59:  317 

151.  Under  the  Pennsylvania  statutes,  a 
child  born  out  of  wedlock  is  rendered 
legitimate  by  the  subsequent  marriage,  and 
cohabitation  of  its  parents,  and,  being  legiti- 
mate there,  is  legitimate  in  New  Jersey, 
and  mav  inherit  land  in  the  latter  state. 
Davton'v.  Adkisson  (N.  J.  Ch.)  45  N.  J.  Eq. 
60.3,  17  Atl,  964,  4:  488 

152.  The  status  as  a  legitimate  heir  of  an 
alien  born  before  the  marriage  of  his 
parents  is  to  be  determined  by  the  law  of 
their  domicil,  De  Wolf  v.  Middleton,  18  P. 
L  810,  31  Atl.  271,  31:  146 

153.  Legitimation  in  a  foreign  country 
does  not  make  lawful  heirs  to  real  estate 
in  other  countries  where  the  common  law 
or  stntute  of  ^lerton  prevails,  of  those  who 
were   born   out  of    lawful    marriage.     Wil- 


liams use  of  Wallace  v.  Kimball,  35  Fla.  49, 
16  So.  783,  26:  746 

154.  A  statute  legitimating  all  children 
of  slaA'es  which  have  been  recognized  by  the 
man  as  his,  although  the  father  and  mother 
have  ceased  to  cohabit  prior  to  the  passage 
of  the  act,  is  not  binding  on  a  man  who  has 
become  domiciled  in  another  state.  Irving 
V.  Ford,  183  Mass.  448,  67  N.  E.  366,  65:  177 
Gudrdian's  right  to  custody  of  ward. 

155.  A  guardian  appointed  for  an  infant 
by  a  court  in  one  state  will  not,  on  the 
ground  of  comity,  be  given  custody  of  the 
child,  against  its  best  interests  by  the 
courts  of  another  state  into  which  the  child 
has  been  taken,  although  the  child  was  re- 
moved from  the  state  where  the  guardian 
was  appointed  contemporaneously  with,  and 
possibly  for  the  purpose  of  escaping  the  ef- 
fect of  proceedings  for,  the  guardian's  ap- 
pointment. Jones  V.  Bowman,  13  Wyo.  79, 
77  Pac.  439,  67:  860 

d.  Corporate  Matters. 

1.  In  General. 

See  also  infra,  344. 

Foreign  corporation  or  association. 

Insolvency  of,  see  infra,  I.  f. 

Matters  as  to  Foreign  Corporations,  General- 
ly, see  Corporations,  VII. 

As  to  Insurance  by  Foreign  Companies,  see 
supra,  I.  b,  3;   Insurance,  I.  b. 

Effect  of  Appointment  of  Receiver,  see 
infra,  269-275;  Attachment,  55. 

Exercise  of  Charter  Powers  in  Violation  of 
Local  Laws,  see  Corporations,  852. 

Jurisdiction  of  Action  by  or  against,  see 
Courts,  I.  b,  4. 

Right  to  Exercise  Power  of  Eminent  Do- 
main, see  Eminent  Domain,  12-15. 

Presumption  as  to  Validity  of  Assignment 
for  Creditors,  see  Evidence,  413. 

See  also  supra,  26-28,  49,  50,  56-60;  infra, 
312,  330. 

For  Editorial  Notes,  see  infra,  HI.  §§  4,  10. 

156.  On  failure  to  show  the  law  of  an- 
other state  which  governs  the  rights  of  a 
foreign  corporation  that  are  in  controversy, 
the  case  will  be  determined  by  the  law  of 
the  forum  as  established,  or,  in  the  absence 
of  any  controlling  authority,  as  justice,  hav- 
ing regard  to  all  interests,  may  seem  to  the 
court  to  require.  Bath  Gaslight  Co.  v. 
Claffy,  151  N.  Y.  24,  45  N.  E.  390,     36:  664 

157.  A  foreign  corporation  which  has 
complied  with  the  statutory  requirements 
to  entitle  it  to  do  business  in  the  state  will 
not  be  permitted  to  make  its  contracts  pay- 
able elsewhere  for  the  purpose  of  securing 
a  construction  or  advantage  not  authorized 
by  the  law  of  the  state  in  which  it  is  at- 
tempting to  do  business.  Washington 
National  Bldg.  L.  &  I.  Asso.  v.  Stanley,  38 
Or.  319,  63  Pac.  489,  58:  816 

158.  A  deed  of  trust  to  secure  debts  exe- 
cuted by  a  corporation  at  its  domicil  in  one 
state  will,  as  to  its  nature,  character,  and 
interpretation,  be  governed  by  the  laws  of 
that  state,  although  it  involves  choses  in 
action  in  another  state  where  the  corpora- 


CONFLICT  OF  LAWS,  I.  d,  2. 


610 


tion  is  doing  business,  and  in  whose  courts 
the  interpretation  of  the  instrument  is 
called  in  question.  Smead  v.  Chandler,  71 
Ark.  505,  76  S.  W.  1066,  65:  353 

159.  Whether  or  not  a  valid  lien  has  been 
created  by  an  execution  of  a  mortgage  by  a 
corporation  at  its  doniicil  upon  a  chose  in 
action  located  in  another  state,  where  the 
action  is  brought  to  enforce  it,  depends 
upon  the  law  of  the  latter.  Id. 

160.  A  corporation  has,  under  the  law  of 
comity,  the  legal  capacity  to  sue  in  states 
other  than  that  from  which  its  charter  was 
obtained.     Ckine  Export  &  C.  Co.   v.  Poole, 

41  S.  C.  70,  19  S.  E.  203,  24:  289 

161.  Courts  of  equity  are  not  open  to  a 
foreign  corporation  as  a  matter  of  strict 
right,  but  as  matter  of  comitv.  Xational 
Teleph.  Mfg.  Co.  v.  DuBois,   165  Mass.  117, 

42  N.  E.  510,  30:  628 

162.  The  rule  of  comity  does  not  require 
that  a  foreign  corporation  shdwid  be  al- 
lowed to  enforce  a  contract  in  conflict  with 
the  laws  of  the  forum,  when  it  would  work 
against  the  citizens  of  that  state,  and  give 
the  citizens  of  another  state  an  advantage 
which  the  resident  has  not.  Rhodes  v.  Mis- 
souri Sav.  &  L.  Co.  173  111.  621,  50  X.  E.  998, 

42:  93 
Membership  in  loan  association. 

163.  The  steps  taken  to  beconie  a  member 
of  a  building  and  loan  association  must  be 
regulated  by  the  law  of  its  domicil,  and  the 
fees  allowed  by  that  law  w-ill  be  held  valid 
everywhere.  Falls  v.  United  States  Sav. 
L.  &  B.  Co.  97  Ala.  417,  13  So.  25,  24:  174 
Shares  of  stock. 

164.  Shares  of  stock  of  a  corporation  are 
pei'sonal  property  only,  and  governed  by  the 
law  of  the  owner's  domicil.  Lowndes  v. 
Cooch,  87  Md.  478,  39  Atl.  1045,  40:  380 

165.  Provisions  of  a  statute  as  to  impli- 
cations to  be  drawn  from  acts  in  connection 
with  dealing  in  stocks  have  no  application 
in  the  courts  of  another  state,  where  the 
validity  of  a  stock  transaction  is  drawn  in 
question,  any  further  than  they  may  tend 
to  throw  light  upon  the  validity  of  such 
transactions  under  the  statute.  Winward  v. 
Lincoln,  23  R.  I.  476,  51  Atl.  106,     64:  160 

166.  A  contract  to  subscribe  to  the  stock 
of  a  corporation  located  in  a  foreign  state, 
and  which  is  to  be  performed  there,  will  be 
governed  by  the  laws  of  that  state.  Fear 
V.  Bartlett,  81  Md.  435,  32  Atl.  322,    33:  721 

167.  A  transfer  of  stock  in  a  national 
bank  of  another  state,  made  in  ^laryland  to 
a  married  woman,  who  is  competent  by  the 
law  of  that  state  to  be  a  stockholder,  is 
valid  irrespective  of  the  law  of  the  state  in 
which  the  bank  is  situated.  Kerr  v.  Urie.  86 
Md.  72,  37  Atl.  789,  38:  119 

2.  Liability  of  Officers  and  Stockholders. 
<7.  Officers. 

168.  The  liability  imposed  on  the  officers 
of  a  corporation  by  X.  Y.  act  1875,  chap. 
611,  §  21,  for  debts  of  the  corporation  in- 
curred while  they  were  officers,  if  any 
certificate,  report,  or  notice  by  them  shall 


be  false  in  any  material  representation,  is  in 
the  nature  of  a  penalty,  and  cannot  be  en- 
forced by  the  courts  of  another  state.  At- 
trill  v.  Huntington,  70  Md.  191,  16  Atl.  651, 

2:  779 

b.  Stockholders. 

As  to   Assessments    on    Stockholders,    see 

Corporations,  599. 
See  also  infra,  346-353;  Courts,  39. 
For  Editorial  Xotes,  see  infra.  III.  §  10. 

169.  The  enforcement  of  individual  lia- 
bility of  a  stockholder  to  a  creditor  of  a 
forcijjn  corporation  which  is  imposed  by  the 
statutes  of  the  state  in  which  the  corpora- 
tion exists  is  not  against  the  judicial  policy 
of  Illinois.  Bell  v.  Farwell,  176  111.  489,  52 
X.  E.  346,  42:  804 

170.  One  who  becomes  a  member  of  a  for- 
eign coi'poration  subjects  himself  to  such 
laws  of  the  government  of  its  situs  as  af- 
fect its  powers  and  obligations.  Warner  v. 
Delbridge  &  C.  Co.  110  Mich.  590,  68  X.  W, 
283,  34:  701 

171.  The  statutory  liability  of  stock- 
holders in  foreign  corporations  cannot  be 
enforced  except  at  the  domicil  of  the 
corporation  when  the  law  of  the  domicil  pro- 
vides the  remed}'.  Marshall  v.  Sherman,  148 
X.  Y.  9,  42  X.  E.  419,  34:  757 

172.  The  Illinois  statute  providing  that 
foreign  corporations  doing  business  in  the 
state  shall  be  subject  to  the  liabilities,  re- 
strictions, and  duties  imposed  upon  domestic 
corporations,  and  have  no  other  or  greater 
powers,  does  not  relieve  a  citizen  becoming 
a  stockholder  in  a  foreign  corporation  from 
a  liability  for  calls  made  upon  stock 
forfeited  for  nonpayment  of  such  calls,  im- 
posed by  the  statute  under  which  such 
corporation  was  organized,  as  the  term 
"doing  business"  has  no  relation  to  the  by- 
laws of  the  company,  or  its  relations  to  its 
own  members,  or  its  resort  to  the  Illinois 
courts  to  enforce  such  liability.  Mandel  v. 
Swan  Land  &  C.  Co.  154  111.  177,  40  X.  E. 
462,  27:313 

173.  The  liability  of  a  stockholder  in  a 
Kansas  corporation,  under  the  Constitution 
and  statute  of  that  state,  to  pay  an  ad- 
ditional amount  equal  to  the  par  value  of 
the  stock  owned  by  him,  being  several,  and 
not  joint,  can  be  enforced  in  a  Federal 
court,  or  any  court  of  general  jurisdiction, 
where  personal  service  may  be  made  upon 
the  stockholder,  in  an  action  at  law  brought 
by  a  judgment  creditor,  to  which  the 
corporation  is  not  a  party.  Fidelity  Ins. 
T.  &  S.  D.  Co.  v.  Mechanics  Sav.  Bank,  38 
C.  C.  A.  193,  97  Fed.  297,  56:  228 

174.  Comity  does  not  require  the  enforce- 
ment of  a  liability  of  a  stockholder  in  a 
foreign  corporation  to  its  creditors,  in  an 
amount  equal  to  the  amount  of  his  stock, — 
especially  where  the  laws  of  the  forum  in 
respect  to  a  stockholder's  liability  are  es- 
sentially different,  since  there  is  no  way  in 
which  the  obligation  can  be  so  enforced  as 
to  secure  substantial  justice.  Orippen  v. 
Laighton,  69  N.  H.  540,  44  Atl.  538,     46:  46" 


620 


CONFLICT  OF  LAWS,  L  d,  2. 


175.  Particular  provisions  of  a  statute 
providing  for  the  individual  liability  of 
stockholders  in  a  foreign  corporation  will 
not  be  detached  and  given  effect  outside  of 
the  doniicil  of  the  corporation,  if  it  would 
be  impossible  to  enforce  all  the  provisions 
of  the  statute  there,  and  its  whole  scope 
indicates  that  it  was  intended  t"  be  enforced 
only  where  passed.  Marshall  v.  Sherman, 
148  N.  Y.  9,  42  N.  E.  419,  34:  757 
What  law  governs. 

176.  The  liability  of  stockholders  must 
be  determined  according  to  the  law  of  the 
state  in  which  the  corporation  is  organized. 
Bell  V.  Farwell,  176  111.  489,  52  N.  E.  346, 

42:  804 

177.  The  liability  of  stockholders  in 
foreign  corporations  must  be  determined  by 
the  law  of  the  state  under  which  such 
corporations  were  created.  Mandel  v.  Swan 
Land  &  C.  Co.  154  111.  177,  40  N.  E.  462, 

27:313 

178.  A  stockholder  in  a  corpo-ration  organ- 
ized under  the  laws  of  a  foreign  state  con- 
tracts with  reference  to  the  laws  of  that 
state;  and  the  extent  of  his  individual  lia- 
bility for  corporate  debts  must  be  de- 
termined by  the  laws  of  that  Itate.  First 
Nat.  Bank  v.  Gustin-Minerva  Consol.  Min. 
Co.  42  Minn.  327,  44  N.  W.  198,  6:  676 

179.  The  legal  rights  of  a  creditor  against 
a  stockholder  of  a  corporation  of  one  state, 
when  action  thereon  is  brought  in  another 
state,  are  to  be  determined  by  the  law  of 
the  state  of  incorporation,  while  the  form 
of  action  and  the  method  of  conducting  it 
depend  upon  the  law  of  the  forum.  Blair  v. 
Newbcgin,  65  Ohio  St.  425,  62  N.  E.  1040, 

58:  644 
Nature  of  liability. 
See  also  infra,  193,  197,  352,  353. 

180.  The  statutory  liability  of  a  stock- 
holder in  an  insolvent  bank  is  not  primary 
and  contractual  so  as  to  be  enforceable  in 
any  jurisdiction  where  the  stockholder  may 
be  found.  JNIarshall  v.  Sherman,  148  N.  Y. 
9,  42  N.  E.  419,  34:  757 

181.  The  statutory  liability  of  a  stock- 
holder in  a  foreign  corporation  for  an  un- 
paid deficiency  of  assets,  which  he  assumes 
by  the  act  of  becoming  a  member  of  the 
corporation  through  the  purchase  of  stock, 
is  in  fact  a  contractual  liability  springing 
from  an  implied  promise;  and,  if  the  statute 
does  not  prescribe  any  remedy,  it  may  be 
enforced  in  the  state  where  he  resides. 
Howarth  v.  Angle,  162  N.  Y.  179,  56  N.  E. 
489,  47:  725 

182.  The  liability  imposed  by  statute 
upon  stockholders  for  debts  of  the  corpora- 
tion is  contractual  as  well  as  statutory,  and 
may  be  enforced  in  foreign  jurisdictions,  if 
the  statute  requires  no  preliminary  local 
proceedings  to  adjust  equities.  Howarth  v. 
Lombard,  175  Mass.  570,  56  N.  E.  888, 

49:  301 

183.  The  liability  of  a  stockholder  to 
creditors  of  a  Kansas  corporation  to  an  ex- 
tent equal  to  the  amount  of  his  stock  is  not 
contraotnal.  but  statutory,  and  not  en- 
forceable in  another  state.  Crippen  v. 
Laighton.  69  N.  H.  540.  44  Atl.  538.     46:  467 


184.  The  liability  of  each  stockholder  to 
each  individual  creditor  of  the  corporation, 
under  the  Kansas  statutes,  is  not  penal,  but 
contractual,  and  may  be  enforced  by  courts 
of  other  states.  Bell  v.  Farwell,  176  111.  489, 
52  N.  E.  346,         ^  42:  804 

185.  The  liability  of  stockholders  under 
the  Kansas  statutes,  to  the  amount  of  their 
stock,  for  payment  of  dues  from  the  corpo- 
ration, is  a  contractual,  and  not  a  penal,  lia- 
bility. Ferguson  v.  Sherman,  116  Cal.  169, 
47  Pac.  1023,  37:  622 

186.  The  right  of  a  corporation  to  re- 
cover in  another  jurisdiction  the  amount  of 
calls  made  upon  its  stock  does  not  depend 
upon  any  principle  of  comity,  but  upon  the 
right  to  enforce  a  contract  validly  entered 
into.  Mandel  v.  Swan  Land  &  C.  Co.  154 
111.  177,  40  N.  E.  462,  27:  313 

187.  The  liability  of  a  stockholder  to  the 
corporation  for  calls  made,  though  depend- 
ent upon  the  phraseology  of  the  statute 
creating  it,  is  contractual,  and  will  ordina- 
rily be  enforced  by  the  courts  of  another 
jurisdiction,  unless  a  wrong  or  injury  will  be 
done  to  the  citizens  of  such  jurisdiction,  or 
the  policy  of  its  laws  will  be  contravened 
or  impaired.  Id. 

188.  An  action  against  all  the  domestic 
shareholders  of  an  Illinois  corporation,  to 
recover  the  unpaid  balance  of  their  sub- 
scriptions to  the  stock,  or  such  pro  rata 
share  thereof  as  is  necessary  to  pay  the 
debts  of  the  company,  may  be  brought  in 
New  York  by  the  Illinois  assignee  for 
creditors,  since  the  cause  of  action  is  a 
contract  liability  which  has  for  its  foun- 
dation the  principles  of  the  common  law, 
and  does  not  depend  upon  111.  Rev.  Stat, 
chap.  32,  §  25,  which  provides  for  such  a 
suit  in  equity  against  all  delinquent  stock- 
holders. Stoddard  v.  Lum,  159  N.  Y.  265,  53 
N.  E.  1108,  45:  551 

189.  The  Kansas  statute  providing  reme- 
dies by  execution  or  action  to  enforce  the 
personal  liability  of  stockholders  which  the 
state  Constitution  declares  shall  be  secured, 
being  construed  by  the  state  courts  to  cre- 
ate a  personal  liability  against  the  stock- 
holders severally  in  the  nature  of  a  contract 
obligation,  the  enforcement  of  such  lia- 
bility by  action  at  law  is  not  confined  to 
the  courts  of  that  state,  but  may  be  had  in 
a  Federal  court  sitting  in  another  state 
wherein  a  stockholder  resides,  when  it  has 
jurisdiction  of  the  parties.  Rhodes  v. 
United  States  Nat.  Bank,  24  U.  S.  App.  607, 
66  Fed.  512,  13  C.  C.  A.  612,  34:  742 
Prerequisites  to  action. 

See  also  Corporations,  638. 

190.  The  courts  of  a  state  of  the  doraicil 
of  an  insolvent  corporation  must,  by  an 
appropriate  proceeding,  determine  the  re- 
lation of  the  corporation  and  its  creditors 
and  stockholders  and  the  proportionate 
share  of  the  corporate  indebtedness  to  be 
borne  by  each  solvent  stockholder  before  re- 
lief can  be  had  against  a  stockholder  in  the 
courts  of  another  state.  Tuttle  v.  National 
Bank  of  the  Republic,  161  111.  497,  44  N.  E. 
984,  34:  750 

191.  .Judgment  against  the  corporation  ob- 


CONFLICT  OF  LAWS,  L  e.  1. 


521 


tained  in  a  Federal  court  in  a  district  of 
Kansas  is  sufficient  to  entitle  a  creditor  to 
bring  an  action  in  a  California  court  against 
a  stockholder  who  is  found  in  the  latter 
state,  without  having  obtained  a  judgment 
against  the  corporation  in  California. 
Ferguson  v.  Sherman,  116  Cal.  169,  47  Pac. 
1023,  •  37:  622 

192.  Collection  may  be  made  from  stock- 
holders wherever  they  may  be  found,  after 
the  preliminary  proceedings  required  by 
statute,  and  the  adjustment  of  the  rights 
and  liabilities  of  the  corporation,  creditors, 
and  stockholders,  under  a  statute  imposing 
liability  for  corporate  debts  upon  stock- 
holders after  proceedings  showing  the  in- 
solvency of  the  corporation  and  the  need  of 
payment  by  stockholders  to  satisfy  the 
claims  of  creditors.  Howarth  v.  Lombard, 
175  Mass.  570,  56  N.  E.  888,  49:  301 

193.  The  contractual  liability  of  a  stock- 
holder domiciled  in  a  foreign  jurisdiction, 
for  debts  of  the  corporation  beyond  the 
amount  of  stock  subscription,  may  be  en- 
forced by  courts  of  that  jurisdiction,  where 
the  proofs  show  an  assessment  in  the  state 
of  the  creation  of  the  corporation  upon  do- 
mestic stockholders  to  the  full  amount  of 
the  stockholders'  liability,  and  the  testi- 
mony discloses  the  insolvency  of  the  corpo- 
ration, and  indebtedness  in  excess  of  the 
stockholders'  liability,  and  an  assessment 
is  sought  of  exactly  the  same  character  as 
was  enforced  in  the  action  brought  in  the 
domicil  of  the  corporation.  Kirtley  v. 
Holmes,  46  C.  C.  A.  102,  107  Fed.  1,    52:  738 

194.  The  courts  of  the  state  of  a  stock- 
holder's residence  will  not  take  jurisdiction 
of  a  suit  by  one  creditor  of  the  corporation 
on  behalf  of  all  to  enforce  his  statutory 
liability  to  contribute  towards  the  payment 
of  the  corporate  debts  in  Advance  of  any 
judicial  determination  of  his  proportionate 
liability,  where  the  corporation  was  created 
in  another  state,  the  laws  of  which  contem- 
plate only  a  pro  rata  contribution  to  debts, 
to  be  enforced  in  an  equitable  proceeding 
against  all  stockholders,  in  which  the  rights 
and  liabilities  of  all  parties  can  be  adjusted 
at  once.  Miller  v.  Smith,  26  R.  I.  146,  58 
Atl.  634,  66:  473 
Parties  to  action. 

195.  The  statutory  liability  of  a  stock- 
holder of  a  dissolved  Kansas  corporation 
may  be  enforced  in  Ohio  by  a  judgment 
creditor  of  the  corporation,  against  &  citizen 
of  the  state,  without  making  the  corpora- 
tion a  partv.  Blair  v.  Newbegin,  65  Ohio 
St.  425,  62  is\  E.  1040,  58:  644 

190.  The  joinder  of  stockholders  to  en- 
force a  several  liability  created  by  the 
statutes  of  another  state  is  authorized  by  a 
statute  permitting  the  joinder  of  persons 
severally  liable  on  the  same  instrument, 
since  the  stockholders,  though  not  technical- 
ly liable  on  the  same  promise,  are  liable 
upon  promises  which  are  identical.  Id. 

197.  The  right  to  join,  in  Ohio,  stock- 
holders of  a  dissolved  Kansas  corporation  to 
enforce  their  liability  under  Kansas  statutes 
to  bo  separately  sued  by  a  creditor  of  the 
corporation,  is  to  be  determined  by  the  law 


of  Ohio,  although  in  Kansas  such  joinder  is 
not  permitted,  since  the  nature  of  the  lia- 
bility is  contractual.  Id. 
Right  of  set-off. 

198.  The  right  of  a  stockholder  to  set  off 
the  indebtedness  of  the  corporation  to  him 
against  his  double  or  additional  liability  to 
creditors  under  the  Kansas  laws,  being  a 
purely  legal  defense  arising  under  the  state 
statute,  is  available  to  such  stockholder  in 
an  action  against  him  by  a  creditor  of  the 
company,  brought  in  a  Federal  court  in  an- 
other state.  Fidelity  Ins,  T.  &  S.  D.  Co.  v. 
Mechanics'  Sav.  Bank,  38  C.  C.  A.  193,  97 
Fed.  297,  56:  228 

e.  Torts  and  Crimes  Generally. 
1.  Torts  Generally;  Personal  Injuries. 

See  also  infra,  336. 

For  Editorial  Notes,  see  infra.  III.  §  25. 

199.  A  nonresident  married  woman  sui 
juris  under  the  law  of  her  domicil  may 
maintain  in  Louisiana  an  action  in  her  own 
name  for  a  personal  tort  in  that  state,  al- 
though the  laws  of  the  state  require  an 
action  in  favor  of  a  married  woman  to  be 
brought  by  her  husband,  and  provide  that 
all  property  acquired  in  the  state  by  non- 
resident married  persons  shall  be  subject  to 
the  same  provisions  of  law  which  regulate 
the  community  of  acquets  and  gains  be- 
tween citizens  of  the  state,  since  the  right 
of  action  for  such  tort  is  personal,  and  is 
not  property  acquired  in  the  state.  Wil- 
liams v.  Pope  Mfg.  Co.  52  La,  Ann.  1417, 
27  So.  851,  50:  816 

200.  One  who  takes  a  lease  of  land  in  the 
Indian  territory,  in  violation  of  law  can- 
not maintain  an  action  in  Kansas,  where  he 
resides,  for  conversion  of  crops  grown  upon 
land  and  lawfully  taken  therefrom  by  the 
defendant,  since  there  are  grave  doubts 
whether  he  could  recover  for  such  conversion 
in  the  territory  where  the  tort  was  com- 
mitted. Holderman  v.  Pond,  45  Kan.  410,  25 
Pac.  872,  11 :  542 

201.  A  civil  action  against  a  railroad 
company  by  the  owner  of  injured  cattle  to 
recover  damages  for  violation  of  U.  S.  Rev. 
Stat.  §  4386,  U.  S.  Comp.  Stat.  1901,  p.  2995, 
requiring  cattle  to  be  unloaded  for  rest, 
water,  and  feeding  when  confined  for 
twenty-eight  consecutive  hours,  can  be 
maintained  in  a  state  court,  and  is  not  with- 
in the  rule  which  prohibits  one  state  from 
enforcing  the  penal  laws  of  another  state  or 
country,  although  there  is  a  penalty  pro- 
vided for  violating  the  statute,  which  is 
payable  to  the  United  States.  Chesapeake  & 
0.  R.  Co.  v.  American  Exch.  Bank,  92  Va. 
495,  23  S.  E.  935,  44:449 
Personal  injuries  generally. 

See   also  Courts,    40,    41;     Executors    and 

Administrators,  115. 
For  Editorial  Notes,  see  infra,  III.  §  25. 

202.  The  effect  of  contributory  negligence 
to  defeat  or  limit  a  right  of  action  for  an 
injury  received  in  another  state  is  to  be 
determined  by  the  law  of  the  place  of  the 


CONFLICT  OF  LAWS,  I.  e,  1. 


injury,  and  not  by  the  law  of  the  forum. 
Louisville  &  X.  R.  Co.  v.  Whitlow,  105  Ky. 
1,  43  S.  W.  711,  41:  614 

203.  The  laws  of  Mexico  defining  negli- 
gence, and  the  civil  rights  resulting  there- 
from, are  not  too  vague  and  indefinite  to  be 
administered  by  courts  in  this  country. 
Evey  V.  Mexican  C.  R.  Co.  26  C.  C.  A.  407, 
52  U.  S.  App.  118,  81  Fed.  294,  38:  387 

204.  Dissimilarity  between  the  law  of 
Mexico,  where  the  cause  of  action  for  negli- 
gence arose,  and  the  law  of  Texas,  in  which 
an  action  is  brought  therefor,  will  not  pre- 
clude the  maintenance  of  the  action,  where 
the  dissimilarity  relates  chiefly  to  matters 
of  procedure,  and  does  not  involve  any 
conflict  with  the  settled  public  policy  of 
Texas.  Id. 

205.  The  provision  of  the  law  of  Mexico 
giving  extraordinary  indemnity  for  negli- 
gence considering  the  social  position  of  the 
party  injured  does  not  constitute  any 
reason  why  a  court  in  this  country  should 
not  entertain  an  action  for  negligence  oc- 
curring in  Mexico,  when  it  is  not  asked  to 
give    such   extraordinary    indemnity.         Id. 

206.  The  fact  that  negligence  may  consti- 
tute a  crime  in  Mexico  does  not  make  a 
civil  action  in  this  country  for  the  negli- 
gence amount  to  the  enforcement  of  a  penal 
law  of  Mexico,  when  the  civil  liability  does 
not  depend,  under  Mexican  law,  upon  the 
criminal  prosecution.  Id. 

207.  The  requirement  of  an  endeavor  to 
procure  an  agreement  and  a  compromise, 
which  is  found  in  the  Mexican  Code,  art. 
313,  relates  merely  to  procedure,  and  failure 
to  comply  therewith  does  not  prevent  an 
action  in  this  country  for  negligence  occur- 
ring in  Mexico.  Id. 

208.  The  right,  under  the  law  of  Mexico, 
to  recover  additional  damages  in  a  new  suit, 
when  they  accrue  after  the  first  judgment 
for  injuries  caused  by  negligence,  is  a  mat- 
ter of  remedy  only,  and  does  not  prevent  a 
court  in  the  United  States  from  enforcing 
a  liability  for  negligence  occurring  in  Mexi- 
co. Id. 

209.  Jurisdiction  of  an  action  for  personal 
injuries  sustained  in  any  other  country,  by 
a  railroad  employee  will  not  be  entertained 
by  a  Texas  court,  where  the  foreign  law 
which  governs  the  case  permits  what  is 
termed  "extraordinary  indemnity"  in  a  sum 
which  the  judge  might  deem  proper  con- 
sidering the  plaintiff's  social  position,  and 
also  provides  for  stibsoquent  judgments  for 
additional  damages  afterwards  arising  out 
of  the  same  injury,  as  well  as  for  a  re- 
duction of  the  judgment  in  case  of  an  in- 
creased earning  capacity  of  the  injured 
person.  Mexican  Xat.  R.  Co.  v.  .Tackson.  8ft 
Tex.  107,  33  S.  W.  8.57,  31 :  276 
To   married    woman. 

210.  A  married  woman's  right  of  action 
for  a  personal  iiijurv  is  not  property,  with- 
in the  internatioTial  law  of  domicil,  so  that 
the  statutory  right  of  action  in  such  cases 
in  the  state  where  she  resides  will  give  her 
11  right  of  action  in  the  District  of  C!olumbia 
for  an  injury  there  sustained:  and  it  is  im- 
material whether  the  statute  of  her  domicil 


treats  such  right  of  action  as  property,  or 
not.  Snashall  v.  Metropolitan  R.  Co.  8 
Mackey,  399,  10:  746 

To  employee. 
For  Editorial  Notes,  see  infra,  III.  §  25. 

211.  The  law  of  Mexico  must  be  applied 
to  the  rights  of  the  parties  in  an  action 
against  a  railroad  company  by  an  employee 
for  a  personal  injury  sustained  in  that  coun- 
try, in  which  the  contract  of  service  was 
made.  Mexican  Nat.  R.  Co.  v.  Jackson,  89 
Tex.  107,  33  S.  W.  857,  31 :  276 

212.  A  statute  of  a  state  in  which  a  rail- 
road employee  is  injured,  providing  that 
proof  of  a  defect  in  an  appliance  shall  be 
presumptive  evidence  of  knowledge  thereof 
on  the  part  of  a  railroad  company,  does  not 
govern  in  an  action  brought  for  the  injury 
in  another  state.  Jones  v.  Chicago,  St.  P. 
M.  &  O.  R.  Coi  80  Minn.  488,  83  N.  W.  446, 

49:  640 

213.  The  law  of  Canada  governs  the  lia- 
bility for  injury  to  an  employee  sent  from 
the  [Michigan  side  to  the  Canada  end  of  the 
tunnel  to  work  in  compressed  air,  when  the 
action  is  based  on  alleged  wrong  in  allow- 
ing him  to  enter  upon  a  dangerous  work  in 
ignorance  of  dangers  known,  or  which 
should  have  been  known,  to  the  master. 
Turner  v.  St.  Clair  Tunnel  Co.  Ill  Mich.  578, 
70  N.  W.  146,  36:  134 

214.  A  Federal  court  in  Tennessee  will  en- 
force the  Mississippi  Constitution  preclud- 
ing the  defense  to  an  action  for  an  employ- 
ee's injury  that  he  knew  of  the  defective  or 
unsafe  character  of  the  machinery  or  ap- 
pliances by  which  he  was  injured,  when  the 
injury  was  received  in  Mississippi,  since  this 
provision  is  simply  a  variation  from,  and 
not  repugnant  to,  the  law  of  Tennessee. 
Illinois  C.  R.  Co.  v.  Ihlenberg,  43  U.  S.  App. 
726.  75  Fed.  873,  21  C.  C.  A.  546,         34:  393 

215.  The  responsibility  of  the  master  for 
the  act  of  a  fellow  servant  is  governed  by 
the  law  of  the  place  where  the  cause  of  ac- 
tion arose.  Chicago  <%  E.  I.  R.  Co.  v. 
Rouse,  178  111.  132,  52  N.  E.  951.  44:  410 

216.  The  liability  of  an  employer  for  in- 
jury to  an  employee  by  a  fellow  servant  in 
a  state  which  has  by  statute  abolished  the 
common-law  rule  can  be  enforced  in  another 
state  in  which  the  common-law  rule  still 
prevails.  Id. 

217.  A  railroad  employee  injured  by  the 
negligeixce  of  a  fellow  servant  in  a  state 
where  the  laws  give  him  no  remedy  cannot 
recover  for  the  injury  by  bringing  a  suit  in 
another  state  where  the  laws  recognize  his 
claim.  Baltimore  &  Ohio  S.  AV.  R.  Co.  v. 
Read,  158  Ind.  25,  62  N.  E.  488,         56:  468 

218.  In  a  suit  by  a  railroad  employee  to 
rec()ver  damages  for  injuries  occurring  in 
another  state  and  caused  by  the  negligence 
of  a  coemployee,  the  common-law  rule  ex- 
empting the  employer  from  liability  for  in- 
juries caused  by  negligence  of  a  fellow  serv- 
ant will  be  presumed  to  be  in  force,  in  the 
absence    of    any    showing   to   the   contrary. 

Id. 

219.  The  law  of  a  state  in  which  a  rail- 
road brakeman  is  injured  by  negligence  of  a 


CONFLICT  OF  LAWS,  L  e,  2. 


523 


coemployee  determines  his  right  to  recover, 
although  such  law  is  contrary  to  that  of 
another  state  in  which  the  negligence  oc- 
curred, and  which  is  also  the  domicil  of  the 
parties  and  the  place  of  the  contract  6f  em- 
ployment. Alabama  G.  S.  R.  Co.  v.  Carroll, 
97  Ala.  126,  11  So.  803,  18:  433 

220.  The  assumption  of  risks  by  a  rail- 
road employee  on  account  of  the  acts  or 
omissions  of  other  employees  is  subject  to 
the  laws  of  the  state  in  which  an  injury  is 
sustained,  although  the  contract  of  employ- 
ment was  made  and  the  service  entered  into 
in  another  state.  Kansas  City,  Ft.  S.  &  ^I. 
R.  Co.  V.  Becker,  67  Ark.  1,  53  S.  W.  406, 

46:  814 

2.  Death. 

Effect  of  Judgment    in    Other    State,    see 

Judgment,  347. 
For  Editorial  Notes,  see  infra,  III.  §  25. 

221.  The  distribution  of  money  recovered 
in  Nebraska  on  a  cause  of  action,  under  the 
Kansas  statute,  for  causing  the  death  of  a 
person  in  Kansas,  may  be  enforced  in  the 
former  state  in  the  manner  prescribed  by 
the  statute  of  Kansas.  Missouri  P.  R.  Co. 
V.  Lewis,  24  Neb.  848,  40  N.  W.  401,      2:  67 

222.  The  plaintiff  in  an  action  to  recover 
damages  for  the  benefit  of  those  injured  by 
the  negligent  killing  of  a  person,  which  is 
brought  outside  of  the  state  where  the  ac- 
cident occurred,  in  the  courts  of  a  state 
which  enforce  the  liability  because  of  the 
similarity  of  its  statutes  to  those  of  the 
former  state,  must  be  the  person  designated 
by  the  statutes  of  the  state  where  the 
injury  occurred.  Wooden  v.  Western  N.  Y. 
&  P.  R.  Co.  126  N.  Y.  10.  26  N.  E.  10.50. 

13:458 

223.  The  mere  fact  of  a  difference  as  to 
the  one  designated  to  bring  the  action,  in 
the  provisions  of  the  statutes  of  two  states 
providing  for  the  recovery  of  damages  for 
the  benefit  of  those  injured  by  the  negligent 
killing  of  a  person,  is  not  sufficient  to  pre- 
vent the  maintenance  of  the  action  in  the 
state  where  the  accident  did  not  occur,  if 
the  statutes  are  otherwise  substantially  the 
same.  Id. 

224.  No  such  dissimilarity  between  the 
local  statute  and  one  of  another  state  under 
which  suit  is  brought  for  death  exists  as 
to  deprive  the  court  of  jurisdiction,  by  the 
fact  that  the  local  law  requires  damages  to 
be  based  on  actual  loss  proved,  while  the 
statute  under  which  the  suit  is  brought  re- 
quires them  to  be  fixed  by  the  culpability 
disclosed  by  a  comparison  of  the  facts  with 
the  defendant's  dxitv.  AVhitlow  v.  Nash- 
ville. C.  &  St.  L.  R.'  Co.  114  Tenn.  344.  84 
S.  W.  618.  68:  503 

225.  The  Massachusetts  statute  relating 
to  personal  injuries  received  from  railroad 
trains  at  grade  crossings,  and  providing  that 
the  railroad  company  may  be  punished  by 
fine  or  indictment  or  sued  for  damages,  is 
penal  in  its  nature;  and  it  is  no  authority 
for  an  action  in  Rhode  Island  for  injuries 
causing  death,  occurring  in  Massachusetts, 


the  Rhode  Island  statutes  having  none  of 
the  penal  features  contained  in  the  Massa- 
chusetts statute.  O'Reillv  v.  New  York  & 
N.  E.  R.  Co.  16  R.  I.  388, '17  Atl.  906,  5:  364 

226.  The  fact  that  the  amount  of  recovery 
for  the  negligent  killing  of  a  person  is  lim- 
ited in  the  lex  fori  and  unlimited  in  the  lex 
loci  does  not  make  the  statutes  of  the  two 
states  so  dissimilar  that  the  remedy  will 
not  be  enforced  in  the  former  state;  but 
the  amount  that  can  be  recovered  will  be 
governed  by  the  lex  fori, — at  least  where 
the  killing  was  done  by  one  of  its  corpora- 
tions. Wooden  v.  Western  N.  Y.  &  P.  R. 
Co.  126  N.  Y.  10,  26  N.  E.  1050,         13:  458 

227.  A  widow  residing  in  one  state,  of  a 
man  who  also  resided  there,  but  who  was 
negligently  killed  in  another  state,  is  en- 
titled to  the  benefit  of  a  statute  of  the  lat- 
ter state,  making  the  one  guilty  of  the  neg- 
ligence liable  therefor,  and  requiring  the 
amount  recovered  to  be  paid  over  to  the 
widow  of  decedent.  Robertson  v.  Chicago 
St.  P.  M.  &  O.  R.  Co.  122  Wis.  66,  99  N. 
W.  433.  66:  919 

228.  Mass.  Pub.  Stat.  1882,  chap.  112,  § 
212.  fixing  a  maximum  and  minimum  fine 
to  be  recovered  by  indictment,  as  a  penaltv 
against  a  railroad  company  for  negligently 
killing  a  passenger,  which  shall  be  paid  to 
the  executor  for  use  of  the  widow  and  chili' 
or  next  of  kin,  is  not  so  strictly  penal  that 
it  cannot  be  enforced  in  other  jurisdictions 
although  impliedly  operative  when  the  dc 
ceased  is  not  using  due  diligence,  since  ii 
also  permits  a  civil  remedy,  and  it  is  appar 
piit  that  its  main  purpose  is  compensation. 
Boston  &  M.  R.  v.  Hurd,  47  C.  C.  A.  615,  lOS 
Fed.  116,  56:  193 

229.  To   make    the    law   of   a   flag   under 
which  a  ship  was  sailing  applicable  to   an 
action  for  death  of  a  passenger  by  drown 
iug  while  upon  the  high  seas,  the  drowning 
must  be  shown  to  have  been  upon  the  ves 
sel.      Rundell  v.  Compagnie  Geuerale  Trans 
atlantique.  40  C.   C.   A.   625,   100  Fed.   655. 

49:  92 
Action  by  widow. 
See  also  supra,  227,  infra,  234. 
For  Editorial  Notes,  see  infra,  III.  §  25. 

230.  A  widow  cannot  maintain  an  action 
in  her  own  name  for  the  death  of  her  hus- 
band in  another  state,  under  a  statute  of 
the  foreign  state  which  expressly  directs  the 
action  to  be  brought  by  the  administrator, 
though  for  the  ultimate  benefit  of  the  wid- 
ow and  next  of  kin,  although  a  closely  sim- 
ilar statute  in  the  state  where  the  action  is 
brought  gives  the  right  to  sue  in  such  a 
case  expressly  and  exclusively  to  the  widow, 
if  there  be  one.  for  the  benefit  of  herself 
and  children.  Usher  v.  West  Jersev  R.  Co. 
126   Pi..  206.   17  Atl.   597,  "     4:  261 

231.  An  action  by  a  widow  for  the  death 
of  her  husband,  occasioned  in  Arkansas,  in 
which  state,  in  the  absence  of  administra- 
tion, she  can  sue  as  the  sole  heir  of  the 
husband,  and  where  exemplary  damages  are 
not  allowed,  cannot  be  maintained  in  Texas, 
where  such  damages  are  allowed,  and  where 
the  widow  of  a  man  killed  is  the  direct  and 
immediate  beneficiary  under  the  statute,  su 


524 


CONFLICT  OF  LAWS,  L  e.  3. 


ing  in  her  own  right,  and  where  the  period 
of  limitation  is  different;  especially  when 
an  administrator  has  been  appointed  in 
Arkansas  pending  the  action,  but  was  dis- 
charged and  the  administration  closed  to 
avoid  a  plea  in  abatement  on  that  ground. 
Although  a  cause  of  action  is  given  by  the 
statutes  of  both  states  for  wrongfully 
causing  death,  they  are  not  sufficiently 
similar  to  warrant  the  courts  of  one  state 
to  enforce  the  statute  of  the  other.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  McCormick,  71 
Tex.  660,  9  S.  W.  540,  1:  804 

Action  by  personal  representative. 
See  also  supra,  230. 
For  Editorial  Notes,  see  inifra,  III.  §  25. 

232.  An  administrator  appointed  in  one 
state  is  not  prevented  from  suing  in  another 
state  for  the  negligent  killing  of  his  intes- 
tate there,  by  the  fact  that  the  statutes  of 
the  two  states  providing  for  the  recovery 
and  distribution  of  damages  in  such  cases 
are  dissimilar  and  in  substantial  conflict. 
Florida  C.  &  P.  R.  Co.  v.  Sullivan,  57  C.  C. 
A.  167,  120  Fed.  799,  61:  410 

233.  A  statute  giving  the  personal  repre- 
sentative of  a  person  negligently  killed  a 
right  of  action  for  the  death,  the  proceeds 
of  which  are  to  be  distributed  among  his  le- 
•,'al  representatives,  is  not  a  penal  statute, 
which  cannot  be  enforced  by  the  courts  of 
other  states.  Whitlow  v.  Nashville.  C.  & 
St.  L.  R.  Co.  114  Tenn.  344,  84  S.  W.  618, 

68:  503 

234.  A  widow  appointed  administratrix  of 
Iier  husband  in  Nebraska  may  sue  a  rail- 
road company  in  Kansas  for  caxising  her 
liusband's  death  in  that  state,  to  enforce  a 
'-ause  of  action  given  by  the  Kansas  statute 
to  the  administratrix,  as  the  statute  does 
not  limit  the  right  to  an  administratrix  ap- 
pointed in  the  state  of  Kansas.  Missouri 
P.  R.  Co.  V.  Lewis,  24  Neb.  848,  40  N.  W. 
401,  2:  67 

235.  A  cause  of  action  for  death,  given  by 
the  statute  of  another  state,  may  be  en- 
forced in  a  state  having  a  statute  which  is 
different  in  some  particulars,  where  both 
statutes  require  the  action  to  be  brought  by 
the  personal  representative,  and  limit  the 
recovery  to  the  same  amount,  and  give  the 
benefit  to  the  snme  person.  Nelson  v. 
Chesapeake  &  0.  R.  Co.  88  Va.  971,  14  S.  E. 
838,  15:  583 

236.  An  action  may  be  maintained  in  one 
state  by  the  personal  representative  of  one 
killed  by  the  negligent  act  of  a  common  car- 
rier in  another  state,  to  recover  from  the 
carrier  damages  resulting  from  such  negli- 
gence, where  the  cause  of  action  survMvos  to 
the  personal  representative  by  the  statutes 
of  the  state  where  the  suit  is  brouirht. 
O'Rpillv  V.  New  York  &  N.  E.  R.  Co.  IG  R. 
L  .305.  19  Atl  244.  6:  719 

237.  An  administratrix  annointed  at  the 
place  where  decedent  resided  in  anot'ior 
state  may,  in  her  representative  capacity, 
maintain  an  action  for  his  neeligent  killing 
in  the  conrfs  of  the  state  where  the  acci- 
dent occtiriecl  which  resulted  in  his  death, 
where  its  statutes  provide  that  "every  such 
action  shall  be  brought  by  and  in  the  name 


of  the  personal  representative  of  the  de* 
ceased  person,"  and  the  recovery  shall  be 
for  the  benefit  of  his  widow.  Robertson  v. 
Chicago,  St.  P.  M.  &  0.  R.  Co.  122  Wis.  66, 
99  N.  W.  433,  66:  919 

What  law  governs. 
See  also  supra,  229. 
For  Editorial  Notes,  see  infra.  III.  §  25. 

238.  The  law  of  the  place  where  the  death 
occurred,'  and  not  where  the  accident  hap- 
pened, governs  in  an  action  for  death  by 
wrongful  act<  RundeH  v.  Compagnie  Gen- 
erale  Transatlantique,  40  C.  C.  A.  625,  100 
Fed.  655,  49:92 

239.  An  action  in  Pennsylvania  for  the 
death  of  a  person  in  New  .Jersey  must  be 
governed  by  the  laws  of  the  latter  state. 
Usher  v.  West  Jersey  R.  Co.  126  Pa.  206,  17 
Atl.    597,  4:  261 

240.  The  recovery  and  disposition  of  a 
fund  for  the  negligent  killing  of  a  person 
are  governed  by  the  laws  which  give  the 
right  of  action.  Florida  C.  &  P.  R.  Co.  v. 
Sullivan,  57  C.  C.  A.  167,  120  Fed.  799, 

61:410 

241.  A  United  States  admiralty  court  will 
not  enforce  the  local  law  of  another  country, 
in  an  action  for  negligent  homicide  occur- 
ring on  the  high  seas,  but  such  action  must 
be  governed  by  the  general  admiralty  law, 
although  the  negligence  occurred  upon  a 
vessel  under  the  flag  of  such  country.  Run- 
dell  V.  Compairnie  Generale  Tri nsatlantique, 
40   C.  C.  A.   625,   100  Fed.   655,  49:92 

3.  Crimes. 

Territorial  Limits  of  Jurisdiction  Over 
Crimes,  see  Courts,  I.  b,  2. 

Law  of  What  Date  Governs,  see  Criminal 
Law,  6. 

Construction  of  Penal  Statute  against  Com- 
binations, see  Statutes,  428. 

Extraterritorial  Effect  of  Statute  against 
Combinations,  see  Statutes,  483. 

See  also  supra,  18. 

For  Editorial  Notes,  see  infra.  III.  §  27. 

242.  One  who  receives  orders  for  the  pur- 
chase or  sale  of  cotton  futures,  and  tele- 
graphs them  for  execution  to  another  city 
in  another  state,  to  which  the  margins  are 
sent,  and  from  which  the  profits  are  trans-" 
mitted  for  delivery  to  the  customer,  does 
not  transact  the  business  of  buying  or  sell- 
ing futures  at  the  place  where  his  office  is 
located,  so  as  to  be  subject  to  punishment 
under  a  statute  forbidding  the  transaction 
of  such  business.  Scales  v.  State,  46  Tex. 
Crim.  Rep.  296,  81  S.  W.  947,  66:  730 

243.  What  constitutes  felonious  stealing 
in  another  state,  within  the  meaning  of  the 
Montana  statute  providing  that  one  who 
shall  "feloniously  steal  j)roperty  of  another 
in  any  other  state,  territory,  or  country," 
and  bring  it  into  ^Montana,  may  be  punished 
in  Montana  as  if  the  larceny  had  been  com- 
mitted there,  is  to  be  determined  by  the 
laws  of  i\fontana,  and  not  by  the  laws  of 
the  place  where  the  propertv  is  stolen. 
State  v.  Kief,  12  :Mont.  92,  29"Pac.  654, 

15:  722 


CONFLICT  OF  LAWS,  I.  L 


525 


244.  Forwarding  money  by  telegiaph  to 
enother  state  to  be  wagered  on  a  horse  race 
to  take  place  in  a  third  state  may  be  made 
a  criminal  oflfense  in  the  state  from  which 
the  nionej  is  sent,  although  it  is  lawful  to 
make  such  wagers  in  the  state  in  which  the 
wager  is  made.  Ex  parte  Lacy,  93  Va.  159, 
24  .•<:.  E.  930,  31:  822 
Bigamous  marriage. 

245.  Contracting  a  bigamous  marriage  in 
one  ptate  cannot  be  made  a  crime  in  anoth- 
er state  which  can  be  punished  in  the  lat- 
ter, in  the  absence  of  any  illegal  cohabita- 
tion there,  although  the  persons  come  within 
the  state.  State  v.  Cutshall,  110  N.  C.  538, 
15  S.  E.  261,  16:  130 

246.  Cohabitation  within  the  state  under 
a  bigamous  marriage  contracted  in  another 
state  is  not  punishable  under  N.  C.  Code, 
§  988,  which  attempts  to  make  it  a  crime 
to  cortract  a  bigamous  marriage  in  another 
state.  *  Id. 
Lewdness. 

247.  Citizens  of  Tennessee  prohibited  by 
its  laws  from  marrying  because  of  their 
adultery  while  one  of  them  was  married  to 
another  person  are  not  protected  from  a 
prosecution  in  that  state  for  lewdness  in 
living  together  as  man  and  wife,  by  leav- 
ing the  state  temporarily  for  the  manifest 
purpose  of  evading  its  laws  and  contracting 
a  marriage  in  Alabama  where  such  mar- 
riages are  not  prohibited.  Pennegar  v  State, 
87  Tcnn.  244,  10  S.  W.  305,  2:703 
Conflict  between  law  of  state  and  of  Unit- 
ed States. 

As  to    Hxclusiveness    of    .Jurisdiction,    see 

Courts,  IV.  d,  2. 
See  also  supra,  1. 

248.  Homicide,  when  necessarily  commit- 
ted by  a  deputy  marshal  in  the  performance 
of  his  duty  in  protecting  the  life  and  per- 
son of  a  justice  of  the  United  States  Su- 
preme Court  from  assault  and  violence  be- 
cause of  his  judicial  decisions,  is  an  "act 
done  in  pursuance  of  a  law  of  the  United 
States,"  and  is  not  and  cannot,  therefore, 
be  an  offense  against  the  laws  of  the  state, 
no  matter  what  the  statute  of  the  state 
may  bo, — the  laws  of  the  United  States  be- 
ing the  supreme  law  of  the  land.  Re  Neagle, 
14  Sawy.  232,  39  Fed.  833,.  5:  78 

f.  Insolvency;    Assignments  for  Creditors. 

See  also  infra,  327,  328,  330;  Insolvency,  10. 
For  Editorial  Notes,  see  infra,  III.  §  16. 

249.  The  situs  of  a  debt  follows  the  cred- 
itor; and  where  the  debtor  and  creditor  re- 
side in  different  states  the  law  of  the  domi- 
eil  of  the  creditor  prevails.  Birdseye  v. 
Baker,  82  Ca.   142,  7  S.  E.  863,  2:99 

250.  A  sale  to  a  resident  by  a  nonresi- 
dent of  notes  against  another  nonresident, 
at  a  discount  and  with  a  guaranty  against 
loss  of  expense  in  collection,  which  is  made 
to  avoid  the  insolvent  law  of  the  state 
where  the  other  parties  reside,  will  not  give 
the  transferee  as  an  attaching  creditor  a 
position  superior  to  that  of  his  nonresident 
assignor,  but  his  rights  will  be  subject  to 


such  insolvent  law.     Crippen  v.  Rogers,  67 
N.  H.  207,  30  Atl.   346,  25:  821 

251.  The  law  of  comity  does  not  require 
the  courts  of  one  state,  which  are  admin- 
istering the  assets  of  an  insolvent  foreign 
corporation,  to  give  effect  to  a  statute  of 
its  domicil  imposing  a  license  tax  upon  it, 
and  making  the  tax  a  preferred  debt  in  case 
of  insolvencv.  J.  A.  Holshouser  Co.  v. 
Gold  Hill  Copper  Co.  138  N.  C.  248,  50  S. 
E.  050,  70:  183 
Validity  of  assignment. 

Presumption  as  to,  see  Evidence,  413. 
For  Editorial  Notes,  see  infra.  III.  §  16. 

252.  A  transfer  of  a  chose  in  action  due 
to  a  foreign  corporation  froni  a  resident 
of  the  state  is  not  void  because  it  does  not 
comply  with  Cal.  Civ.  Code,  div.  4,  tit.  3, 
relating  to  assignments  of  property  situat- 
ed in  that  state.  Fenton  v.  Edwards,  126 
Cal.  43,  58  Pac.  320,  46:  832 

253.  The  question  of  the  validity  of  the 
attempted  transfer  of  title  to  an  assignee 
for  creditors  by  a  corporation  organized  in 
one  state  and  doing  business  in  another  is 
for  the  state  in  which  the  property  is  situ- 
ated. Vanderpoel  v.  Gorman,  140  N.  Y.  563, 
35  N.  E.  932,  24:  548 

254.  The  rule  that  a  voluntary  assign- 
ment for  creditors  is  valid  in  other  states 
when  upheld  by  the  law  of  the  domicil  of 
the  owner,  does  not  apply  to  an  assignment 
which,  though  voluntarily  made,  is  made 
under  a  statute  which  provides  for  a  dis- 
charge of  the  debts  of  all  creditors  who  ac- 
cept any  dividends  under  the  assignment  or 
otherwise  participate  therein;  but  such  an 
assignment  is  to  be  treated  as  a  transfer 
in  invitum  under  insolvency  or  bankruptcy 
laws.  Barth  v.  Backus,  140  N.  Y.  230,  35 
N.  E.  425,  23:  47 

255.  Assignments  of  personal  property 
valid  by  the  law  of  the  domicil  of  the  as- 
signor are  generally  recognized  as  valid  by 
the  law  of  the  state  where  the  property  is 
situated,  unless  they  violate  its  statutory 
law  or  its  known  and  settled  public  policy. 
Vanderpoel  v.  Gorman,  140  N.  Y.  563,  35  N. 
E.  932,  24:  548 

256.  A  voluntary  assignment  in  ore  state, 
where  it  is  valid,  will  be  upheld,  as  against 
the  citizens  of  that  state,  by  the  courts  of 
another  state.  Woodward  v.  Brooks,  128 
111.  222,  20  N.  E.  685,  3:  702 

257.  Although,  as  a  general  rule,  an  as- 
signment of  personal  property  valid  by  the 
laws  of  the  state  or  country  where  made  is 
valid  everywhere,  a  transfer  giving  pref- 
erences to  certain  creditors,  made  in  anoth- 
er state,  will  not  be  upheld  in  the  state 
where  the  property  is  situated,  if  in  contra- 
vention of  its  policy  and  laws.  Re  Dalpav, 
41  Minn. '532,  43  N.  W.  564,  6:  108 

258.  A  conveyance  of  property  situate  in 
Minnesota  by  an  insolvent  debtor  to  a  cred- 
itor, which  amounts  to  a  preference  unlaw- 
ful under  the  state  insolvent  laws,  may  be 
avoided,  although  the  creditor  so  preferred 
resides  without  the  state.  Macdonald  v. 
First  Nat.  Bank,  47  Minn.  67,  49  N.  W.  395, 

13:  462 

259.  Under  the  statute  of  South  Carolina 


526 


CONFLICT  OF  LAWS.  I.  f. 


declaring  that  an  assignment  for  creditors 
shall  be  absolutely  null  and  void  if  any 
preference  or  priority  is  given  thereby,  an 
assignment  preferring  employees,  executed 
in  New  York  by  a  citizen  of  that  state,  con- 
veying property  in  South  Carolina,  will 
be  hold  altogether  void  in  the  latter  state, 
although  the  assignment  conforms  strictly 
to  the  laws  of  New  York.  Sheldon  v. 
Blanvelt,  29  S.  C.  463,  7  S.  E.  593,       1 :  685 

260.  The  rule  that  contracts  made  out  of 
the  state,  which  contravene  the  policy  of 
the  state,  will  be  held  void,  does  not  make 
void  an  assignment  for  creditors  merely  be- 
cause it  does  not  have  annexed  to  it  the 
schedule  required  in  such  cases  by  the  laws 
of  the  state,  as  such  schedules  are  not  parts 
of  the  contract.  Birdseye  v.  Baker,  82  Ga. 
142,  7   S.  E.  863,  2:  99 

261.  An  assignment  made  in  the  state  of 
New  York,  which  is  legal  there,  will  not  be 
held  void  in  Georgia  for  failure  to  attach 
such  a  schedule  and  inventory  as  the  law 
of  that  state  requires  in  such  cases  of  as- 
signment, under  the  provision  of  Ga.  Code, 
§  8,  that  a  writing  intended  to  have  effect 
in  that  state  must  be  in  conformity  to  the 
laws  of  that  state,  where  there  is  nothing 
to  show  that  it  was  intended  to  have  ef- 
fect in  Georgia,  merely  because  debts  were 
due  by  citizens  of  that  state  to  the  assign- 
ors, and  were  assigned  in  the  instrument.  Id. 
Effect  of  assignment  or  commencement  of 

insolvency  proceedings. 
For  Editorial  Notes,  sec  infra,  IIL  §  16. 

262.  An  assignment  for  creditors,  made  in 
New  York  in  conformity  with  the  laws  of 
that  state,  passes  the  title  to  property  in 
Pennsylvania,  as  between  residents  of  New 
York.  alth.Miah  the  assignment  has  never 
been  recorded  in  Pennsylvania  in  accordance 
with  the  Pennsylvania  act  of  May  3,  1855 
(P.  L.  415).  Bacon  v.  Home,  123  Pa.  452, 
16  Atl.  794,  2:  355 

263.  Under  a  statutory  assignment  for 
creditors,  money  on  deposit  in  a  bank  of 
another  state  may  be  applied  to  notes  of 
the  assignor  held  by  the  bank,  after  they 
become  due,  since  the  assignment  conveys 
to  the  assignee  title  to  such  assets  only  as 
are  within  the  state;  and  the  subsequent 
filing  by  the  bank  in  the  assignment  pro- 
ceedings, of  a  claim  for  the  balance  due  on 
the  notes  after  exhausting  the  deposit,  does 
not  estop  it  from  denying  the  extraterri- 
torial effect  of  the  assignment.  Segnitz  v. 
Garden  Citv  Banking  &  T.  Co.  107  Wis. 
171,  83   N.   W.   327,  50:  327 

264.  An  assignment  for  creditors  under 
Sand.  &  B.  (Wis.)  Ann.  Stat,  chaps.  80, 
80a,  providing  that  the  assignor,  upon  com- 
pliance with  the  provisions  of  the  act,  may 
be  discharged  from  his  debts,  and  that  every 
creditor  residing  within  or  without  the 
state,  who  shall  accept  a  dividend  out  of  the 
assigned  estate,  or  participate  in  any  way 
in  the  proceedings,  shall  be  bound  by  the 
order  of  discharge,  will  not  carry  title  to 
personal  property  of  the  assignor  in  anoth- 
er state,  since  this  provision  is,  in  its  es- 
sential featiires,  a  bankrupt  law,  and  can 
be  given  no  extraterritorial  effect.  Id. 


265.  Garnishment  of  a  debt'  due  to  a 
foreign  corporation  is  precluded  by  a  pre- 
vious voluntary  assignment  for  creditors 
made  by  the  corporation  in  another  state, 
as  the  right  to  the  chose  in  action  is  there- 
bv  vested  in  the  assignee.  Fenton  v.  Ed- 
wards, 126  Cal.  43,  58  Pac.  320,  46:  832 

26C.  An  attachment  will  be  upheld  as 
against  a  prior  assignment  for  the  benefit 
of  creditors  in  another  state,  which  is  in 
fact  a  transfer  in  invitum  under  insolvent 
laws.  Barth  v.  Backus,  140  N.  Y.  230,  35 
N.  E.  425,  23:  47 

267.  The  dissolution  of  an  attachment 
made  within  four  months  previously,  by  the 
commencement  of  insolvency  proceedings, 
under  Me.  Rev.  Stat.  chap.  70,  §  33,  applies 
to  a  foreign  creditor  as  well  as  to  those  re- 
siding in  the  state,  if  his  debt  was  contract- 
ed while  that  statute  was  in  force.  Owen 
V.  Koberts,  81  Me.  439,  17  Atl.  403,  4:  229 
Effect  of  discharge. 

See  also  supra.  261;    Insolvency,  26-30. 

268.  A  discharge  under  state  insolvency 
laws  will  not  release  existing  debts  due  to 
nonresident  creditors  who  do  not  come  in 
and  prove  their  claims  in  the  insolvency 
proceedings.  Phoenix  Nat.  Bank.  v.  Bat- 
cheller,  151  Mass.  589,  24  N.  E.  917,  8:  644 
Effect  of  appointment  of  receiver  for  cor- 
poration. 

Effect  of,  on  Pending  Attachment,  see  At- 
tachment, 55,  56. 
For  Editorial  Notes,  see  infra.  III.  §  16. 

269.  A  conveyance  of  the  property  of  a 
corporation  to  a  receiver,  under  a  decree 
which  three  quarters  of  its  shareholders 
had  sought  and  none  opposed,  is  to  be 
deemed  voluntary  for  the  purpose  of  de- 
termining its  effect  on  the  title  of  per- 
sonal property  in  another  state.  Ward  v 
Connecticut  Pipe  Mfg.  Co.  71  Conn.  345,  41 
Atl.    1057,  42:  706 

270.  Nonresident  creditors  of  a  corpora- 
tion in  the  hands  of  a  receiver,  when  they 
are  not  residents  of  the  state  in  which  the 
receiver  is  appointed,  have  the  same  right 
to  contest  the  receiver's  title  to  property 
that  domestic  creditors  have.  Linville  v. 
Haddnn,  88  Md.  594,  41  Atl.  1097,      43:  222 

27 1 .  Legal  proceedings  in  other  states  are 
not  affected  by  Conn.  Pub.  Acts  1895,  p. 
491,  dissolving  attachments  made  within 
sixty  days  before  the  appointment  of  a  re- 
ceiver of  a  corporation.  Ward  v.  Connecti- 
cut Pipe  Mfg.  Co.  71  Conn.  345,  41  Atl.  1057, 

42:  706 

272.  A  statute  making  a  judgment  con- 
fessed by  a  corporation,  after  a  petition  has 
been  filed  for  its  dissolution,  void  as  against 
the  receiver  and  creditors,  is  not  effective  to 
control  the  disposition  of  property  attached 
according  to  the  laws  of  another  state  under 
such  judgment.  Commercial  Nat.  Bank  v. 
Matherwell  Iron  &  S.  Co.  95  Tenn.  172,  31 
S.  W.  1002,  29:  164 

273.  A  receiver  of  a  foreign  corporation, 
appointed  in  another  state  in  proceedings 
to  dissolve  the  corporation,  has  a  right  to 
a  debt  due  the  corporation,  as  against  an 
attempt  at  garnishment  of  the  debt  by  a 
nonresident  creditor  of  the  corporation,  who 


CONFLICT  OF  LAWS,  I.  g,  h. 


537 


is  a  citizen  of  the  state  in  which  the  cor- 
poration existed  and  in  which  the  receiver 
was  appointed.  Oilman  v.  Hudson  River 
Boot  &  S.  Mfg.  Co.  84  Wis.  60,  54  N.  W. 
395,  23:  52 

274.  Attaching  the  lines  and  property  of 
a  telegraph  company  in  other  states,  after 
a  receiver  has  been  appointed  in  the  state 
of  which  the  attachment  creditor  is  a  citi- 
zen and  the  creditor  served  with  a  copy  of 
:ui  injunction  against  interfering  with  the 
receivership,  is  a  violation  of  the  injunction, 
and  can  give  the  creditor  no  lien  which  can 
be  asserted  in  an  equitable  administration 
of  the  assets  in  the  state  where  the  receiv- 
er was  appointed.  Farmers'  Loan  &  T.  Co. 
V.  Bankers'  &  M.  Teleg.  Co.  148  N.  Y.  315. 
42  "N.  E.  707,  31:403 

275.  Debts  established  in  a  proceeding  for 
the  receivership  of  an  insolvent  foreign  cor- 
jjoration  will  be  paid  out  of  the  assets  in 
the  receiver's  hands  before  sendijig  the  re- 
mainder of  the  assets  to  a  receiver  at  the 
domicil  of  the  corporation.  Failey  v.  Fee, 
83  Md.  83,  34  Atl.  839,  32:  311 

g.  Rights  in  Property  Generally;    Transfers. 

As  to    Jurisdiction    Over    Land    in    Other 

Country,  see  Courts,  57. 
As   to    Jurisdiction    Over   Land    in    Other 

State,  see  Courts,  L  b,  3,  b. 
As    to    Jurisdiction    Over    Land    in    Other 

County,  see  Courts,  54-56. 
See  also  supra,  142. 
For  Editorial  Notes,  see  infra,  IIL    §§    12, 

13. 

276.  A  state  has  the  power  to  change  the 
rule  that  the  validity  of  a  transfer  of  per- 
sonal property  is  to  be  determined  by  the 
law  of  the  owner's  domicil,  so  far  as  it  re- 
lates to  property  within  its  borders,  and  to 
make  the  transfer  thereof  subject  to  its 
own  laws.  Farmers  &  M.  Xat.  Bank  v. 
Loftus,  133  Pa.  97,  19  Atl.  347,  7 :  313 
Ownership  of  land  under  water. 

276a.  The  law  of  the  state  in  which  the 
lands  lie  determine  the  question  whether 
the  bed  of  waters  belongs  to  the  state  or 
to  the  owners  of  riparian  lands,  where  these 
have  been  granted  by  the  United  States 
without  reservation  or  restriction.  Lampcey 
V.   State,  52   Minn.   181,  53  N.  W.   1139, 

18:  670 
Interest  in  trust  property. 
See  also  infra,  280. 

277.  The  laws  of  the  state  in  which  a 
trust  was  created  and  the  trustee  appoint- 
ed and  in  which  the  parties  interested  re- 
side will  govern  questions  relating  to  the 
interests  of  a  beneficiary.  First  Nat.  Bank, 
v.  National  Broadway  Bank.  1.56  N.  Y.  459, 
51  N.  E.  398,  42:  139 
Lien  for  materials. 

278.  That  a  contract  for  materials  to  be 
delivered  "at  and  for"  a  building  irt  New 
York  was  made  and  payable  in  another 
state  does  not  prevent  the  materialman 
from  obtaining  a  lien  therefor,  under  N.  Y. 
Laws  1885,  chap.  342,  providing  that  "any 
person"  may  have  a  lien  Avho  has  furnished  ' 


any  materials  wliich  have  been  used  in  the 
erection  of  any  building  within  the  state. 
Campbell  v.  Coon,  149  N.  Y.  556,  44  N.  E. 
300,  38:  410 

h.  Transfers  of  Property  Generally. 

Tax  on  Transfers,  see  Ta.xes,  616-625,  627- 

629. 
See  also  supra,  110,  111,  113,  114,  166,  infra, 

335. 

Power  of  appointment. 
See  also  infra,  316,  317. 

279.  Questions  as  to  the  execution  of  a 
power  of  appointment  of  personal  proper- 
ty are  to  be  decided  by  the  law  of  the  domi- 
cil of  the  donor  of  the  power,  and  not  by 
the  law  of  the  domicil  of  the  donee.  Lane 
V.  Lane,  4  Penn.   (Del.)  368,  55  Atl.  184, 

64:  849 
Conveyance  of  trust  property. 
See  also  supra,  277. 

280.  A  disposition  or  pledge  by  a  cestui 
que  trust,  of  an  interest  in  a  trust  created 
in  and  governed  by  the  laws  of  another 
state,  is  not  subject  to  the  provisions  of  1 
N.  Y.  Rev.  Stat.  729,  §  63,  prohibiting  the 
alienation  of  their  interests  by  cestuis  que 
trusts.  First  Nat.  Bank  v.  National  Broad- 
way Bank,  156  X.  Y.  459,  51  N.  E.  398, 

42:  139 
Conveyance  by  committee  of  lunatic. 

281.  A  conveyance  by  a  committee  of  the 
land  of  a  lunatic  is  not  valid  when  author- 
ized only  by  judgment  of  a  court  of  another 
state,  in  which  the  lunatic  and  the  commit- 
tee reside.  Hotchkiss  v.  Middlekauf,  96  Va. 
649,  32  S.  E.  36,  43:  806 
Effect   of   antenuptial  contract  to  prevent. 

282.  An  antenuptial  contract  made  in  a 
foreign  country,  by  which  children  of  a  for- 
mer marriage  of  the  wife  were  adopted  as 
heirs  of  the  husband,  will  not  prevent  dis- 
position of  real  property  subsequently  ac- 
quired in  Illinois  after  his  emigration  there- 
to, although  such  children  are  infants  at 
the  time  of  such  emigration,  incapable  of 
consenting  to  a  change  of  domicil,  or  waiv- 
ing any  rights,  as,  if  they  acquire  the  status 
of  heirs,  their  inheritance  must  be  in  ac- 
cordance with  the  laws  of  Illinois,  by  which 
the  husband  has  an  absolute  right  to  dis- 
pose of  his  property  by  will  to  the  exclu- 
sion of  natural  or  adopted  children.  Long 
V.  Hess.  154  111.  482.  40  N.  E.  335,      27:  791 

283.  An  antenuptial  contract  made  in  a 
foreign  country,  by  which  the  children  of  a 
former  marriage  of  the  wife  are  adopted  by 
the  husband  and  the  property  settled  upon 
them  and  the  children  of  the  marriage,  ap- 
proved by  the  courts,  is  not  applicable  to 
real  property  acquired  by  the  husband  in 
Illinois  after  his  emigration  to  this  country, 
so  as  to  prevent  his  disposition  thereof  by 
deed  or  will.  Id. 
Sale  of  personal  property. 

Sale  of  Liquor  for  Resale  in  Other  State 
as  Interference  with  Commerce,  see 
.    Commerce,  97-105. 

Illegality  of  Contract  for  Sale  of  Liquor  in 
Other   State,   see  Contracts,   397-399. 


528 


CONFLICT  OF  LAWS,  L   i. 


See  also  supra,  113a. 

For  Editorial  Xotes,  see  infra,  ITL  §  15. 

28  K  A  contract  by  a  Chicago  company, 
made  by  its  traveling  salesman  with  a  pur- 
chaser in  Iowa,  to  sell  coal  delivered  on  the 
cars  at  Chicago,  is  an  Illinois  contract.  Os- 
good V.  Bauder,  75  Iowa,  550,  39  N.  W. 
887,  1 :  655 

285.  A  sale  of  goods  by  a  drummer,  the 
order  for  which  is  taken  subject  to  the  ap- 
proval of  his  principal  in  another  state,  but 
which  is  consummated  by  the  segregation  of 
the  goods  sold  from  a  stock  of  goods  with- 
in the  state,  is  a  contract  of  the  latter 
state,  and  subject  to  its  laws.  Succession 
of  Welsh,  111  La.  801,  35  So.  913,        64:  823 

286.  Where  an  order  for  goods  is  taken  by 
a  drummer  in  one  state  subject  to  the  ap- 
proval of  his  principal,  and  is  transmitted  to 
the  principal  in  another  state,  and  is  there 
approved  and  there  filled  by  the  segregation 
and  shipment  of  the  goods,  the  sale  is  a 
contract  of  the  domicii  of  the  vendor,  and 
does  not  give  rise  to  a  vendor's  privilege 
on  the  goods,  unless  such  privilege  exists 
under  the  laws  of  such  other  state.  Id. 

287.  The  sale  of  beer  shipped  from  Illi- 
nois to  Iowa  is  an  Iowa  contract,  where  the 
agreement  fixing  the  terms  of  sale  is  for- 
warded from  Illinois  to  Des  Moines  and 
there  signed,  making  in  effect  a  continuing 
offer  to  sell  on  terms  stated,  which  offer  is 
accepted  by  letter  or  telegram.  Gipps  Brew. 
Co.  V.  De  France,  91  Iowa,  108,  58  X.  W. 
1087,  28:  386 

288.  A  sale  of  liquors  is  subject  to  the 
laws  of  the  state  of  the  purchaser's  res- 
idence, where,  although  the  order  is  sent 
to  another  state,  and  they  are  there  de- 
livered to  a  carrier  for  transportation  to 
the  purchaser,  the  seller  makes  delivery  to 
him  conditional  on  his  complying  with  the 
terms  of  the  contract  and  obtaining  the 
bill  of  lading,  which  the  seller  takes  in  his 
own  name  and  transmits  to  a  bank  for  de- 
livery when  the  contract  is  complied  with, 
the  shipper  retaining  full  control  until  that 
time.  Brown  v.  Wieland,  116  Iowa,  711, 
89  N.  W.  17,  61 :  417 

280.  A  statute  making  void  all  sales  of 
intoxicating  liquors,  and  providing  for  a 
return  of  the  price  paid,  does  not  apply  to 
sales  consummated  in  another  state,  al- 
though they  were  made  in  response  to  an 
order  procured  by  a  local  agent,  and  were 
delivered  by  the  carrier  to  the  purchaser  in 
the  state  where  the  statute  exists.  Id. 

i.  Chattel   Mortgages;    Conditional   Sales. 

Chattel  mortgages. 

Law  Governing  Execution,  Acknowledgment 
and    Recording    of,    see    Chattel    Mort- 
gage, 3. 
For  Editorial  Xotes.  see  infra,  TIT.  §  14. 

2P0.  The  law  of  Arkansas  will  be  applied 
in  an  attachment  suit  in  that  state  on  an 
interplea  by  a  person  claiming  chattels  un- 
der a  mortgage  given  in  the  Indian  terri- 
tory, where  there  is  no  proof  of  the  laws 
of  the  territory.  Garner  v.  Wright,  52  Ark. 
385,   12   S.   W."  785,  6:  715 


291.  The  validity  of  a  chattel  mortgage 
executed  by  an  insolvent  foreign  corpora- 
tion in  the  state  which  created  it,  to  secure 
a  creditor  residing  in  that  state,  must  be  de- 
termined by  the  laws  of  the  state  in  which 
the  property  is  situated.  Fowler  v.  Bell,  90 
Tex.  150,  37  S.  W.  1058,  39:  254 

292.  A  chattel  mortgage  duly  recorded  in 
one  state  will  not,  under  the  doctrine  of 
comity,  be  given  priority  by  the  courts  of 
another  state,  to  which  the  chattels  are  re- 
moved, over  local  attaching  creditors  who 
had  no  actual  notice  of  it.  Snider  v. 
Yates,  112  Tenn.  309,  79  S.  W.  796,      64:  353 

293.  The  lien  of  a  chattel  mortgage  duly 
recorded  in  the  state  where  the  mortgagor 
resides  is  not  superior,  in  another  state,,to 
which  the  property  was  carried  and  in 
which  the  mortgage  is  not  filed,  to  subse- 
quent attachments  in  the  latter  state.  Cor- 
bett  V.  Littlefield,  84  Mich.  30,  47  N.  W. 
581,  11:95 

294.  A  mortgagor's  removal  of  personal 
property  to  another  state,  where  it  is 
seized  and  sold  by  his  creditors  on  attach- 
ment, cannot  affect  the  rights  of  the  mort- 
gagee, whose  mortgage  was  duly  recorded  in 
the  state  where  the  parties  resided.  Horn- 
thall  V.  Burwell,  109  X.  C.  10,  13  S.  E.  721, 

13:  740 

295.  A  mortgagor  bringing  into  the  state 
property  encumbered  by  a  valid  mortgage 
duly  recorded  under  the  laws  of  another 
state  does  not  invalidate  the  recording,  or 
necessitate  recording  it  again  in  the  county 
to  which  he  has  removed  with  the  property. 
Handley  v.  Harris,  48  Kan.  606,  29  Pac. 
1145.     '  17:  703 

296.  'J'he  lien  of  a  mortgage  on  chattels, 
duly  recorded  as  required  by  the  law  of  the 
state  where  they  are  located,  follows  the 
property  when  it  is  taken  into  another 
state,  either  with  or  without  the  consent  of 
the  mortgagee,  and  is  not  destroyed  by  a 
local  statute  merely  prescribing  how  such 
mortgages  shall  be  executed  and  recorded. 
Shapard  v.  Hvnes,  45  C.  C.  A.  271,  104  Fed. 
449,  "  52:  675 

297.  The  constructive  notice  imparted  by 
the  registration'  of  a  chattel  mortgage  in 
the  county  and  state  where  executed  is  not 
confined  to  that  county  and  state,  but  pro- 
tects the  interests  of  the  mortgagee  when 
the  property  is  removed  by  the  mortgagor 
to  another  state,  by  the  law  of  comity  be- 
tween states.  Ord  Xat.  Bank  v.  Massey,  48 
Kan.   762,   30  Pac.   124,  17:  127 

298.  A  chattel  mortgage  duly  recorded  so 
as  to  constitute  notice  in  one  state  is  by 
comity  good  in  another  state  to  which  the 
property  is  taken  in  violation  of  the  agree- 
ment and  sold,  even  as  against  an  innocent 
purchaser  of  the  property  for  value,  unless 
this  rule  is  against  the  policy  of  the  laws 
of  the  latter  state.  Xational  Bank  of  Com- 
merce v.  Morris,  114  Mo.  255,  21  S.  W.  511, 

19:463 

299.  A  chattel  mortgage  on  horses,  given 
in  Canada  by  the  owner  of  a  half  interest ' 
in  them  and  filed  by  the  mortgagee,  who 
takes  possession  of  the  horses  and  puts 
them   in   the   care  of  a  keeper  of    a    hotel 


CONFLICT  OF  LAWS,  I.  j. 


629 


at  a  race  track  to  bold  possession  for  him, 
gives  such  mortgagee  a  better  right  to  such 
interest  in  the  horses  after  they  have  been 
taken  without  his  consent  from  the  custo- 
dian and  shipped  to  Michigan  by  the  owners 
of  the  other  half  interest  in  the  horses,  who 
did  not  know  of  his  mortgage,  than  the  lat- 
ter can  assert  under  another  chattel  mort- 
gage from  the  same  mortgagor,  which  they 
took  in  Michigan  before  the  horses  went  to 
Canada  and  recorded  after  their  return. 
Vinning  v.  IVIiller,  109  Mich.  205,  67  K  W. 
126,  32:442 

Conditional  sales. 
For  Editorial  Notes,  see  infra.  III.  §  15. 

300.  A  state  statute  requiring  conditional 
sales  of  personal  property  to  be  recorded  ap- 
plies to  a  contract  of  sale,  made  in  another 
state,  of  property  to  be  delivered  and  held 
within  the  former  state.  Knowles  Loom 
Works  v.  Vaclier  (N.  J.  Sup.)*57  X.  J.  L. 
490,  31  Atl.  306,  33:  305 

301.  A  conditional  sale  valid  where  it  is 
made,  by  which  the  title  is  retained  until 
the  purchase  money  is  paid,  may  be  upheld 
against  an  innocent  purchaser  from  the 
original  vendee  in  another  state  to  which 
the  property  is  taken  without  payment,  in 
accorda,nce  with  the  law  of  that  state,  al- 
though by  the  laws  of  the  former  state  the 
conditional  sale  would  be  held  invalid  as  to 
a  bona  fide  purchaser,  because  not  recorded. 
Weinstein  v.  Freyer,  93  Ala.  257,  9  So.  285, 

12:  700 

j.  Descent  and  Distribution;    Wills. 

Descent  and  distribution.     , 
See  also  supra,  143,  151-153,  221,  282;  Exec- 
utors  and  Administrators,   101. 
For  Editorial  Notes,  see  infra,  III.  §  17." 

301a.  The  different  states  of  this  Union 
are  foreign  countries  to  each  other  so  far 
as  the  law  of  descents  is  concerned.  Wil- 
liams use  of  Wallace  v.  Kimball.  35  Fla. 
49,  16  So.  783,  26:  746 

302.  The  law  in  the  state  in  w^hich  real 
estate  is  situated  furnishes  the  rule  as  to 
its  descent,  alienation,  and  transfer,  the 
construction  and  validity  of  conveyances, 
thereof,  and  the  capacity  of  the  parties  to 
such  conveyances,  as  well  as  their  rights 
under  the  same.  Walling  v.  Christian  &  C. 
Grocery  Co.  41  Fla.  479,  27  So.  46,  47:  608 

303.  The  descent  and  heirship  of  real  es- 
tate are  exclusively  governed  by  the  law  of 
the  country  within  which  it  is  actually  sit- 
uated. Williams  use  of  Wallace  v.  Kimball, 
35  Fla.  49,  16  So.  783,  26:  746 

304.  Upon  the  law  of  the  doniicil  of  a 
minor  child  at  the  time  of  its  death  depend 
the  inheritance  rights  of  its  heirs.  Fox  v. 
Hicks,  81  Minn.  197,  83  N.  W.  538,  50:  663 

305.  A  child  adopted  in  a  sister  state  in 
substantial  compliance  with  her  statutes 
will  inherit  lands  of  the  deceased  adopting 
parent  on  equal  terms  with  a  child  of  such 
parent  born  in  wedlock.  Grav  v.  Holmes, 
57   Kan.   217,   45    Pac.   596,      '  33:  207 

306.  Real  property  may  descend  to  a  child 
who,  by  adoption  in  another  state,  has  be- 
come there  the  lawful  heir  of  the  owner  of 

L.R.A.  Dig.— 34. 


the  property.     Van   Matre   v.   Sankey,   148 
111.  536,  36  N.  E.  628,  23:  665 

307.  The  offspring  of  a  bigamous  marri- 
age contracted  in  Illinois,  where  it  is  void, 
may,  as  legitimate  heirs,  inherit  lands  in 
Kentucky,  where  the  parents  lived,  by  vir- 
tue of  the  Kentucky  statute  declaring  that 
the  issue  of  an  illegal  or  void  marriage 
shall  be  legitimate.  Leonard  v.  Braswell, 
99   Ky.   528,   36  S.   W.   684,  36:  707 

308.  The  right  of  a  surviving  husband  to 
the  personal  estate  of  his  wife,  being  pro- 
vided for  by  the  New  York  statutes  only 
when  she  leaves  descendants,  and  being  in 
other  cases  referable  to  his  common-law 
marital  rights,  cannot  be  upheld  in  Missouri 
with  respect  to  the  personal  property  in 
that  state  of  a  married  woman  without  de- 
scendants, who  was  domiciled  in  New  York, 
under  Mo.  Rev.  Stat.  1899,  §  254,  providing 
that  the  personal  property  in  that  state  of 
the  inhabitant  of  another  state  will  be  dis- 
tributed according  to  the  law  of  the  Mat- 
ter state,  since  this  section  is  intended  to 
recognize  and  give  effect  to  foreign  statutes 
of  distribution  in  such  cases,  but  not  to 
adopt  foreign  laws  governing  marital  rights. 
Re  McPherson,  163  Mo.  493,  63  S.  W,  726, 

52:  420 
Wills. 
Conclusiveness   of  Probate  in   Other  State, 

see  Judgment,  356. 
Probate  of  Foreign  Will,  see  Judgment,  338, 

339. 
See  also   supra,  52,  infra,  334:   Wills,  157. 
For  Editorial  Notes,  see  infra,  HI.  §  17. 

309.  A  state  statute  concerning  wills,  for- 
bidding a  testator  to  give  more  than  half 
of  his  estate  to  religious  corporations,  etc., 
does  rot  apply  to  a  gift  to  such  a  corpora- 
tion of  that  state  by  a  will  executed  by  a 
nonresident  in  his  own  state.  American  Bi- 
ble Soc.  V.  Healy,  153  Mass.  197,  26  N.  E. 
404,  10:  766 

310.  A  bequest  of  personalty  to  a  "com- 
munity" in  a  foreign  country  is  valid  if  it 
has  capacity  to  take  by  the  laws  of  that 
country.  Re  Huss,  126  N.  Y.  537,  27  N.  E. 
784,  12:  620 

311.  That  promissory  notes  bequeathed  by 
will  are  secured  by  mortgage  on  real  estate 
does  not  deprive  them  of  the  character  of 
personal  property  so  as  to  prevent  their 
passing  by  a  foreign  will  duly  probated  at 
testator's  domicil,  and  recorded  in  the  state 
where  the  land  is  situated,  as  provided  by 
the  laws  of  the  latter  state.  Martin  v. 
Stovall,  103  Tenn.  1,  52  S.  W.  296,  48:  130 

312.  The  law  of  the  forum  as  to  the  valid- 
ity of  a  bequest  will  be  applied  to  a  gift  by 
will  to  a  foreign  corporation, — especially 
when  this  gratifies,  and  does  not  frustrate, 
the  testator's  wishes,  although  the  law  of 
the  state  which  created  the  corporation  may 
be  different.  Congregational  Church  Bldg. 
Soc.  V.  Everitt,  85  Md.  79,  36  Atl.  654, 

35:  693 

313.  The  law  of  a  legatee's  domicil  gov- 
erns the  lapsing  of  a  legacy  of  bank  stock 
made  by  a  will  in  another  state  in  which 
the  bank  is  situated,  although  a  statute  of 
the  latter  state,  if  applicable,  would   pre- 


S80 


CONFLICT  OF  LAWS,  H. 


vent  the  lapsing.    Lowndes  v.  Cooch,  87  Md. 
478,  39  Atl.  1045,  40:  380 

314.  The  residue — personalty  as  well  as 
real  estate — will  go  to  those  who  would  be 
entitled  to  succeed  to  the  real  estate  of  the 
life  tenant  in  case  of  intestacy,  under  a 
will  which  gives  a  portion  of  testator's  prop- 
erty, consisting  of  both  real  estate  and  per- 
sonalty, to  one  for  life  and  after  his  decease 
to  his  heirs  at  law;  and  such  persons  must 
be  determined  by  the  law  of  testator's  dom- 
icil,  by,  which  he  must  be  presumed  to  have 
intended  that  his  beneficiaries  should  be 
ascertained;  and  this  is  so  although  all  the 
land  given  by  the  will  is  situated  in  the 
state  where  the  life  tenant  resided,  which  is 
foreign  to  the  testator's  domicil.  Lincoln  v. 
Perry,  149  Mass.  368,  21  N.  E.  671,      4:  215 

315.  The  question  who  are  the  heirs  at 
law  of  a  person,  within  the  meaning  of  a 
Massachusetts  will  which  gives  them  an  es- 
tate in  a  certain  event  if  he  is  not  then 
living,  is  to  be  determined  by  the  law  of 
Massachusetts,  although  the  person  named 
is  domiciled  in  another  state.  Proctor  v. 
Clark,  154  Mass.  45,  27  N.  E.  673,        12:  721 

316.  The  law  of  the  domicil  of  the  donor 
of  a  power  given  by  will  must  govern,  as 
against  the  law  of  the  domicil  of  the  donee, 
in  determining  whether  or  not  the  will  of 
the  latter  is  an  execution  of  the  power. 
Cotting  V.  De  Sartiges,  17  R.  I.'  668,  24  Atl. 
530,  16:  367 

317.  The  establishment  by  express  stat- 
ute, both  in  England  where  a  will  was  made, 
and  in  New  York  where  the  testator  was 
domiciled,  of  the  rule  that  a  general  devise 
is  sufTicient  to  execute  a  power  of  appoint- 
ment, cannot  prevail  in  respect  to  a  trust 
fund  held  under  the  will  of  the  donor, 
whose  domicil  was  in  Rhode  Island,  as 
against  the  contrary  rule,  which,  in  the  ab- 
sence of  a  statute,  prevails  in  the  latter 
state.  Id. 

318.  A  gift  in  trust  to  a  charity  in  a  for- 
eign country  in  which  the  trustees  are  com- 
petent to  take  and  hold  and  the  trust  is 
capable  of  being  executed  and  enforced  is 
not  invalid  because  such  a  trust  would  con- 
travene the  law  of  the  testator's  domicil  in 
respect  to  the  creation  of  trusts  and  per- 
petuities. Hope  V.  Brewer,  136  N.  Y.  126. 
32  N.  E    558.  18:  458 

319.  The  New  York  law  against  perpetui- 
ties will  not  defeat  a  bequest  of  personal 
property  in  trust  which  was  valid  under  the 
law  of  the  testator's  domicil.  although  the 
propprt\  and  the  trustee  and  most  of  the 
beneficipries  are  in  the  state  of  New  York. 
Cross  V.  United  States  Trust  Co.  131  N.  Y. 
330,  30  N.  E.    125,  15:  606 


II.  Remedies. 

Effect  of  Death  Sentence  in  Other  State,  see 
Civil  Death.  6. 

Law  of  What  Date  Governs,  see  Criminal 
Law,   6;     Dower,  2;    Taxes,  564. 

Powers  and  Pigbts  of  Receivers,  see  Re- 
ceivers.  54,   79,   80. 


See  also  supra,  43. 

For  Editorial  Notes,  see  infra,  m.   §§  21, 
24. 

320.  The  remedy  upon  a  contract  will  be 
administered  according  to  the  law  of  the 
place  where  the  remedy  is  sought.  Heaton 
v,  Eldridge,  56  Ohio  St.  87,  46  N.  E.  638, 

36:  817 

321.  Where  a  statutory  right  is  created, 
coupled  with  a  specific  remedy  to  enforce  it, 
such  remedy  is  exclusive,  and  cannot  be 
pursued  in  foreign  jurisdictions.  Finney  v. 
Guy,  106  Wis.  256,  82  N.  W.  595,     49:486 

322.  Whether  the  determination  of  a 
matter  is  for  the  court  or  for  the  jury  is  a 
matter  affecting  the  remedy,  and  is  con- 
trolled by  the  lex  fori,  and  not  by  the  lex 
loci  contractus.  Massachusetts  Ben.  L. 
Asso.  v.  Robinson,  104  Ga.  256,  30  S.  E.  918, 

42:  261 

323.  The  spirit  of  comity  does  not  require 
that  a  nonresident  shall  be  allowed  a  rem- 
edy which  is  by  the  policy  of  the  state  law 
denied  to  its  own  citizens.  Ruhe  v.  Buck, 
124  Mo.  178,  27  S.  W.  412,  25:  178 

324.  The  law  of  the  forum  prevails  as  to 
the  form  of  the  remedy,  the  conduct  of  the 
trial,  and  the  rules  of  evidence  in  an  action 
upon  a  transitory  cause  of  action  arising 
in  another  jurisdiction.  Eingartner  v,  Il- 
linois Steel  Co.  94  Wis.  70,  68  N.  W,  664, 

34:  503 
Attachment  and  garnishment. 
Of  Resident's  -Wages  in  Other  State,  Equal 

Protection     as    to,    see    Constitutional 

Law,  564. 
See  also  supra,  250,  265-267,  271,  284,  290, 

292-294,   infra,   352;    Garnishment,   79- 

81,  91-94. 
For  Editorial  Notes,  see  infra,  III.  §  22. 

325.  Mill.  &  V.  (Tenn.)  Code,  §  5040,  pro- 
viding thgit  residents  of  other  states,  having 
exhausted  their  remedies  there  against  debt- 
ors residing  in  such  states,  may  subject  to 
the  satisfaction  of '  their  claims  property 
situated  in  Tennessee,  gives  such  creditors 
a  remedy  to  the  same  extent  and  in  the 
same  manner  and  with  the  same  priority  as 
a  citizen  of  Tennessee.  Commercial  Nat. 
Bank  v.  Matherwell  Iron  &  S.  Co.  95  Tenn. 
172.  31  S.  W.  1002,  29:  164 

326.  An  attachment  of  the  property  of  a 
married  woman,  which  is  not  allowed  by 
state  law  in.  the  case  of  its  own  citizens, 
will  not  be  allowed  to  a  nonresident  credi- 
tor, although  the  debt  was  created  in  anoth- 
er state  where  the  married  woman  resided 
and  where  the  contract  creating  it  was  val- 
id. Ruhe  V.  Buck,  124  Mo.  178,  27  S.  W. 
412,  25:  178 

327.  Attaching  creditors,  although  non- 
residents, who  seek  to  question  a  prefer- 
ence in  a  prior  assignment  under  an  insol- 
vent law  of  their  own  state,  are  entitled  to 
the  sam.e  protection  and  preference  under 
attachment  laws  as  if  they  were  residents, 
liar  til  V.  Backus,  140  N.  Y.  230,  35  N.  E. 
425,  23:  47 

328.  Citizens  of  a  foreign  state  will  not 
be  aided  by  the  courts  to  obtain  by  garnish- 
ment  preference   of  their  claims   against  a 


CONFLICT  OP  LAWS,  II. 


581 


foreign  debtor  in  disregard  of  proceedings  in 
his  own  country  for  the  sequestration  of 
his  estate  and  the  appointment  of  a  trustee 
thereof  in  bankruptcy.  Long  v.  Forrest, 
150  Pa.  413,  24  Atl.  711,  23:  33 

Action  on  judgment.      , 
See  also  infra,  338. 

329.  An  action  at  law  may  be  maintained 
to  enforce  payment  of  sums  due  under  a 
decree  in  equity  for  payment  of  alimony 
rendered  in  another  state,  although  the  de- 
cree is  not  for  a  specific  sum,  but  for  a 
periodic  allowance,  and  the  remedy  in  the 
state  where  the  decree  was  rendered  would 
be  by  contempt  proceedings  in  the  equity 
court.  Wagener  v.  Latham,  26  R.  I.  27,  57 
Atl.  1058,  65:  816 

330.  The  principles  of  comity  do  not  ap- 
ply to  an  action  by,  a  foreign  receiver  of 
a  foreign  mutual  insurance  convpany  acting 
under  a  decree  in  the  foreign  jurisdiction 
making  an  assessment  on  premium  notes, 
even  if  otherwise  applicable  where  the  notes 
were  taken  for  insurance  on  property  in 
the  state  while  the  company  was  doing  busi- 
ness within  the  state  in  violation  of  Mc- 
Clain's  (Iowa)  Code,  §  1144.  prohibiting  for- 
eign insurance  companies  from  doing  bus- 
iness without  compliance  with  the  condi- 
tions therein  mentioned.  Parker  v.  C. 
Lamb  &  Sons,  99  Iowa,  265,  68  N.  W.  686, 

34:  704 
Statute  of  frauds. 
For  Editorial  Notes,  see  infra,  HI.  §  8. 

331.  The  defense  of  the  statute  of  frauds 
depends  on  the  law  of  the  state  in  which 
an  action  is  brought.  Obear  v.  First  Nat. 
Bank,  97  Ga.  587,  25  S.  E.  335,  33:  384 

332.  The  law  of  the  forum  that  "no  action 
shall  be  brought"  upon  any  contract  which 
is  not  to  be  performed  within  one  year,  un- 
less it  is  in  writing,  will  govern  in  an  ac- 
tion upon  such  a  contract,  although  the  con- 
tract was  made  in  another  state  in  which  it 
could  be  proved  bv  oral  evidence.  Heaton 
V.  Eldridge,  56  Ohio,  87,  46  N.  E.  638, 

36:  817 

333.  A  court  will  not  entertain  a  suit  to 
charge  a  person  on  an  unsigned  representa- 
tion as  to  the  credit  of  another  person,  al- 
though it  is  valid  where  made,  if  the  stat- 
ute <jf  the  place  where  the  suit  is  brought 
provides  that  no  action  shall  be  brought  to 
charge  one  on  such  a  representation,  un- 
less it  is  in  writing,  signed, by  the  party  to 
be  charged  thereon.  Third  Nat.  Bank  v. 
Steel,  129  Mich.  434,  88  N.  W.  1050,  64:  119 

334.  An  oral  contract  to  make  a  will,  al- 
though valid  in  the  state  where  it  is  made, 
cannot  be  enforced  in  Massachusetts  against 
inhabitants  of  that  state,  since  an  action 
must  be  controlled  by  the  policy  of  Mass. 
Stat.  1888,  chap.  372,  which  requires  such 
agreements  to  be  in  writing.  Emery  v. 
Burbank,  163  Mass.  326,  39  N.  E.  1026, 

28:  57 

335.  An  oral  contract  for  real  property,  if 
valid  at  the  place  where  it  is  made  and 
where  the  property  is  situated,  may  be  en- 
forced in  another  state  notwithstanding  a 
statute   of   the    latter    declaring   that    such 


contract   shall  be  void  if  not    in    writing. 
Wolf  v,  Burke,  18  Colo.  264,   32  Pac.  427, 

19:  792 
Statute  of  limitations. 

Limitation  of  Action  to  Enforce  Judgment 
of  Other  State,  see  Limitation  of  Ac- 
tions, 209,  210. 
For  Editorial  Notes,  see  infra,  III.  §  23. 

330.  Where  a  right  of  action  for  a  tort  is 
given  by  a  statute  of  another  state,  and  no 
period  of  limitation  is  prescribed  otherwise 
than  by  the  general  law  of  limitation  pre- 
vailing in  that  state,  the  lea  fori,  not  the 
Jex  loci,  applies  on  the  subject  of  limitation. 
O'Shields  v.  Georgia  P.  R.  Co.  83  Ga.  621, 
10  S.  E.  268,  6:  152 

337.  The  bar  of  an  action  by  the  statute 
of  limitations  must  be  determined  by  the 
laws  of  the  state  in  which  the  remedy  is 
sought,  although  the  action  is  brought  on 
a  written  contract  executed  and  to  be  per- 
formed in  another  state.  Obear  v.  First  Nat. 
Bank,  97  Ga.  587,  25  N.  E.  335,         33:  384 

338.  A  plea  of  the  statute  of  limitations, 
in  an  action  on  a  judgment  obtained  in 
another  state,  is  a  plea  to  the  remedy,  and 
subject  to  the  lex  fori.  Arrington  v.  Ar- 
rington,  127  N.  C.  190,  37  S.  E,  212,  52:  201 

339.  The  courts  of  one  state  will  not  en- 
force the  provisions  of  a  contract  made  in 
another  state  as  to  the  time  in  which  ac- 
tions shall  be  brought  on  it,  which  are  con- 
trary to  the  provisions  of  the  local  stat- 
ute of  limitations.  Adams  Exp.  Co.  v. 
Walker,  26  Ky.  L.  Rep.  1025,  83  S.  W.  106, 

67:412 

340.  A  judgment  of  the  courts  of  a  state 
where  a  note  is  sent  for  collection  holding 
it  barred  by  the  statute  of  limitations  will 
not  bar  a  suit  upon  the  note  in  another 
state  where  the  action  is  not  barred,  if,  by 
the  laws  of  the  state  where  the  judgment 
was  rendered,  the  cause  of  action  was  not 
extinguished  by  the  judgment,  which  oper- 
ates exclusively  upon  the  remedy.  Brand 
V.  Brand,  116  Ky.  785,  76  S.  W.  868,    63:  206 

341.  A  statute  of  a  foreign  country,  pro- 
viding that  a  cause  of  action  for  personal 
injuries  shall  be  absolutely  extinguished  in 
one  year,  will  not  operate  as  a  defense  to  a 
suit  in  the  United  States,  where  the  injured 
person  left  such  country  before  such  statute 
became  operative  by  the  expiration  of  the 
year.  Canadian  P.  R.  Co.  v.  Johnston,  26 
U.  S.  App.  85,  9  C.  C.  A.  587,  61  Fed.  738, 

25:  470 

342.  Suit  in  another  state  to  collect  from 
an  intestate  estate  a  claim  barred  by  the 
statute  of  limitations  of  the  decedent's 
domicil,  but  not  of  the  state  where  the  suit 
is  brought,  is  not  inequitable;  and  an  in- 
junction against  it  will  not  be  granted  by  a 
court  of  his  domicil.  Thomdike  v.  Thorn- 
dike,  142  111.  450,  32  N.  E.  510,  21:71 

343.  The  right  to  redeem  land  from  a 
mortgage  or  absolute  deed  given  as  security 
is  governed  by  the  law  of  the  place  where 
the  land  lies;  and  the  rule  there  prevail- 
ing, that  such  a  right  is  barred  when  an 
action  on  the  debt  is  barred,  must  control, 
although  in  another  state,  where  the  par- 
ties reside  and  the  contract  was  made,  the 


532 


CONFLICT  OP  LAWS.  IL 


bar  of  the  debt  would  not  defeat  the  right 
to  redeem.  Allen  v.  Allen,  95  Cal.  184,  30 
Pac.  213,  16:  646 

344.  A  special  statute  of  limitations  ap- 
plicable to  liabilities  arising  under  statutes, 
acts  of  incorporation,  or  by  operation  of 
the  law,  such  as  Ga.  Code  1882,  §  2916 
(Code  1895,  §  3766),  is  to  be  considered  as 
forming  a  part  of  and  as  read  into  a  sub- 
sequent act  of  incorporation  as  much  as 
if  it  were  formally  incorporated  therein, 
and  therefore  it  will  govern  in  an  action 
in  another  state  to  enforce  the  liability  of 
a  stockholder  in  such  corporation.  Bruns- 
wick Terminal  Co.  v.  National  Bank  of  Bal- 
timore, 40  C.  C.  A.  22,  99  Fed.  635,    48:  625 

345.  The  effect  of  partial  payments  upon 
a  contract,  to  interrupt  the  statute  of  lim- 
itations, must  be  determined  by  the  law 
of  the  state  in  which  the  action  is  brought, 
although  the  contract  was  made  and  to  be 
performed  in  another  state.  Obear  v.  First 
Nat.  Bank,  97  Ga.  587,  25  S.  E.  335,  33:  384 
To  enforce  stockholder's  liability. 

Right  of  Assignee  for  Creditors  to  Sue  Out- 
side of  State,  see  Assignments  for  Cred- 
itors, 26. 
See  also  supra,  344. 
For  Editorial  Notes,  see  infra,  IIL  §  10. 

340.  Although  the  liability  of  a  stockhold- 
er in  a  foreign  corporation  may  be  enforced 
by  creditors  wherever  they  can  obtain  ju- 
risdiction of  the  necessary  parties,  yet  the 
remedy  is  governed  by  the  law  of  the  fo- 
rum. First  Nat.  Bank  v.  Gustin-Minerva 
Consol.  Min.  Co.  42  Minn.  327,  44  N.  W.  198, 

6:  676 

347.  A  special  remedy  against  stockhold- 
ers of  a  corporation  provided  by  the  laws  of 
the  fitate  where  the  corporation  is  domi- 
ciled will  not,  on  the  ground  of  comity,  be 
enforced  in  the  courts  of  another  state  which 
has  a  different  and  inconsistent  method  of 
procedure,  where  it  will  result  in  injustice 
to  the  citizens  of  the  latter  state.  Tuttle 
V.  National  Bank  of  the  Eepublic.  161  111. 
497,  44  N.  E.  984,  34:  750 

348.  No  action  will  lie  in  courts  out  of 
the  state  to  enforce  liability  of  stockholders 
for  corporate  debts,  where  the  statutes  im- 
posing such  liability  provide  a  single  meth- 
od of  enforcing  it  by  one  suit  in  the  state 
courts  in  favor  of  all  creditors  and  against 
the  corporation,  if  it  nas  assets,  and  all 
stockholders.  Finney  v.  Guv,  106  Wis.  25«i, 
82  N.  W.  595,  49:  486 

349.  If,  under  any  circumstances,  an  ac- 
tion to  enforce  a  statutory  liability  against 
a  stockholder  of  a  foreign  corporation  could 
be  enforced  outside  of'the  state  of  its  crea- 
tion, it  must  be  by  such  modes  of  procedure 
as  like  liabilities  created  by  the  state  where 
the  suit  is  brought  are  enforced  against  its 
citizens.  ]\Iarshall  v.  Sherman,  148  N.  Y.  9, 
42  N.  E.  419,  34:  757 

350.  An  action  to  charge  stockholder* 
with  the  amount  of  a  judgment  against  a 
corporation,  which  is  one  of  the  remedies 
authorized  by  Kan.  Stat.  chap.  23,  art.  4. 
§  1192,  is  transitory,  and  may  be  brought 
in  a  court  of  general  jurisdiction  in  another 
state,   where  personal  service  can  be  made 


upon  the  stockholder.    Ferguson  v.  Sherman, 
116  Cal.  169,  47  Pac.  1023,  37:622 

351.  An  action  by  a  creditor  to  enforce 
the  liability  of  a  stockholder  under  Kan. 
Gen.  Stat.  1889,  ^  1192,  is  transitory,  and 
may  be  brought  in  any  court  of  general 
jurisdiction  over  similar  actions  in  any  state 
or  country  where  service  can  be  made  ac- 
cording to  the  laws  of  that  place.  Hancock 
Nat.  Bank  v.  Ellis,  172  Mass.  39,  51  N.  K 
207,  42:  396 

352.  The  courts  of  another  state  cannot 
enforce  the  stockholders'  liability  for  unpaid 
subscriptions  provided  by  the  Illinois  act  of 
1871-72,  p.  299,  §  8,  as  that  is  not  a  general- 
contract  liability,  but  is  to  be  enforced  by 
the  remedy  corresponding  to  garnishment 
provided  in  that  section.  Russell  v.  Pa- 
cific R.  Co.  113  Cal.  258,  45  Pac.  323, 

34:  747 

353.  A  suit  equitable  in  form,  to  enforce 
in  Ohio  the  statutory  liability  of  those 
stockholders  of  a  Kansas  corporation  who 
are  within  the  jurisdiction  to  a  creditor  who 
had  obtained  judgment  against  the  corpo- 
ration in  Kansas,  is  not  objectionable  on 
the  ground  that  it  is  an  attempt  to  base  a 
creditors'  bill  on  a  judgment  of  another 
state,  since  the  liability  is  not  to  the  cor- 
poration, but  directly  to  the  creditor,  and 
the  right  to  maintain  the  suit  does  not  de- 
pend at  all  upon  the  form  of  the  action,  but 
on  the  substance  of  the  allegations.  Blair 
V.  Newbegin,  65  Ohio  St.  425,  62  N.  E.  1040, 

58:644 
Exemption  laws. 

354.  Exemption  laws  of  another  state 
have  no  extraterritorial  force,  and  will  not 
be  enforced  by  the  courts  of  this  state. 
Pennsylvania  R.  Co.  v.  Rogers,  52  "W.  Va. 
450,  44  S.  E.  300,  62:  178 

355.  An  exemption  law  of  one  state  has 
no  effect  in  an  action  brought  in  another 
state.  Carson  v.  Memphis  &  C.  R.  Co.  88 
Tenn.  646,  13  S.  W.  588,  8:  412 

356.  The  right  to  exemption  from  execu- 
tion is  subject  to  the  law  of  the  forum. 
Goodwin  v.  Claytor,  137  N.  C  224,  49  S.  E. 
173,  67:209 

357.  Property  exempt  from  levy  and  sale 
on  execution  cannot  be  subjected  to  the  pay- 
ment of  a  judgment  for  a  debt  incurred  in 
a  sister  state  where  the  exemption  laws  are 
different.  La  Selle  v.  Woolery,  11  Wash. 
337,  39  Pac.  663,  32:  73 

358.  A  debtor  cannot  claim  the  benefit  of 
the  exemption  law  of  the  state  of  his  dom- 
icil,  even  against  his  creditor  residing  there, 
with  respect  to  a  debt  due  him  by  a  corpora- 
tion, located  and  doing  business  in  another 
state,  which  is  also  the  situs  of  the  debt, 
and  which  debt  has  been  attached  by  the 
creditor  at  the  domicil  of  the  corporation. 
Goodwin  v.  Claytor,  137  N.  C.  224,  49  S.  E. 
173,  67:209 
Rules  of  evidence. 

See  also  supra,  324;  Evidence,  822,  823. 

'.]59.  A  statutory  provision  regulating 
the  use  of  an  application  for  a  policy  of  in- 
surance as  evidence  is  not  effective  in  an- 
other state,  although  action  is  brought  on  a 
policy  which  is  expressly  made  with  refer- 


CONFLICT  OF  LAWS.  IIL   (Ed.  Notes.) 


583 


ence  to  the  laws  of  the  former  state.  Union 
C.  L.  Ins.  Co.  V.  Pollard,  94  Va.  146,  26  S. 
E.  421,  36:271 

360.  The  admissibility  or  competency  of 
evidence  in  a  legal  proceeding  pe«rtains  to 
the  remedy  and  is  governed  by  the  lex  fori; 
and  therefore  a  clause  in  the  British  ship- 
ping act  of  1854,  making  certain  entries  in 
the  official  log  book  competent  evidence  in 
all  courts,  does  not  make  them  so  in  the 
courts  of  any  other  country.  The  City  of 
Carlisle,  39  Fed.   807,  5:  52 


ni.  Editorial  Notes. 

As  to  Jurisdiction  of  Action  with  Respect 
to  Land  in  Another  State, 
see  Courts,  VI.  §  6. 

As  to  Foreign  Judgment,  see' <  Judgment, 
VIII.  §§  26-29. 

Situs  of  Property  for  Purposes  of  Taxation, 
see  Taxes,  VL  §§  18-22. 

a.  In  general;  contracts. 

§  I.  In  general. 

Law  of  comity   in    enforcement   of   rights. 

6:  110.* 
Recognition   of   foreign   laws;    comity.     10: 

767.* 
When  lex  loci  contractus  governs.  3:  523,* 

702.* 
When  law  of  place  of  performance  governs. 

3:  524.* 
Validity.     1:  656;*  2:  355;*  6:  108.* 
Interpretation  and  effect.     1:  655;"  6:  108.* 
§  2.  Carriers'  contracts. 
General  principles.     63:  513. 

Intention    of    the    parties    generally; 

when  expressed.     63:  513. 
Presumed   intention;    subsidiary    rules. 
63:515. 
When  transportation  wholly  with- 
in one  state.     63:  515. 
WTien    transportation    within    two 
or   more   states   or    coun- 
tries.    63:516. 
Local  law  as  opposed  to  general  prin- 
ciples of  commercial  law. 
63:  523. 
Public  policy.     63:  525. 
Application  of  general  principles  to  partic- 
ular matters.     63:  525. 
Prima     facie    character    of    subsidiary 

rules.     63:  525. 
As   to  limitation   of  carrier's   common- 
law  liability.     63:525. 
Exemption  from   liability  for  loss 
or  injury  not  due  to  neg- 
ligence. '  63:  525. 
Exemption  from  liability  for  neg- 
ligent     loss      or      injury. 
63:  526. 
Limitation  of  amount  of  carrier's 
liability.     63:  529. 
As  to  liability  of  carrier  beyond  own 
line;   liability   of  connect- 
ing carrier.     03:  530. 
As  to  continiiance  of  carrier's  liability 
after  arrival  of  goods  at 
destination.     63:63L 


Vis  major:  act  of  Uod.    63:  531. 
Telegraph  cases.     63:  532. 
Miscellaneous.     63:  533. 
§  3.  Negotiable  paper. 
General    commercial    principles   as   opposed 

to  local  law.     61:  193. 
Time  of  payment.     61:  195. 
Mode  of  acceptance  of  bill.     61:  196. 
Collateral  effect  of   instrument.     61:  199. 
Character  and  liability  of  irregular  indors- 

er.     61:200. 
Character  of  holder.     61 :  202. 
Negotiability     in     general;     bill     or     note 
fraudulently     transferred. 
61 :  205. 
Liability    of,    and    defehses    available     to, 
maker,    or    acceptor.     61: 
206. 
In  general.     61:  206. 
As  between  the  law  of  the  substantive 
contract   and   the    law   of 
the  remedy.    61 :  207. 
As  between  the  law  of  the  original  con- 
tract and  the  law  of  the 
contract    of    indorsement. 
61:208. 
As  between  the  law  of  the  place  where 
the  contract  is  made  and 
that   of    the    place    where 
it  is  payable.     61:  209. 
Liability    of,    and    defenses    available    to, 
drawer    or   indorser.      61: 
212. 
The  nature  of  the  drawer's  or  indors- 

er's  contract.     61:212. 
Substantive  liability.     61 :  213. 
Conditions  precedent  to  liability  of  the 
drawer   or   indorser.      61 : 
215. 
In  general.     61:  215. 
Demand  and  protest.     61:  216. 
Notice.     61:  217. 

Necessity  of  suing  primary  obligor 
as    condition    of    holding 
drawer   or   indorser.     61: 
220. 
Who  may  bring  action;    sufficiency  of  the 
indorsement      or     assign- 
ment.     61:222. 
Right  to  join  primary  and  secondary  obli- 
gors.    61 :  226. 
§  4.  Insurance. 

Where  contract  ot  insurance  deemed  to  have 
been  made.     63:  834. 
In  general.     63:  834. 
When    proposition,    embodying    terms, 
emanates  from  the  insur- 
er.    63 :  835. 
When  concluded  in  first  instance  by  lo- 

'cal  agent.     63 :  835. 
When  local  agent  has  no  authority  to 
accept     application.       63 : 
836. 
When  policy  mailed  directly  to  in- 
sured.    63:  837. 
When  policy  mailed  to  agent  of  in- 
sured.    63 :  839. 
When   policy   delivered   to   insured 
by  local  agent  of  insurer. 
63:  84a 


534 


CONFLICT  OF  LAWS,  IIL  (Ed.  Notes.) 


When  local  agent  required  to 
countersign     policy.      83 : 
840. 
Stipulation    that    contract    is 
not    to    take    effect    until 
delivery    or    payment    of 
premium.    63:  841. 
When     no     conditions     prece- 
dent    expressly     imposed. 
63:  843. 
Revival;  open  policy.     63:  846. 
Choice  of  laws.     63:  847. 

General    principles;    intention;    express 
stipulations  as  to  govern- 
ing    law;     public     policy. 
63:  847. 
Local   statutes   relating  to   foreign   in- 
surance     companies      and 
their  agents.     03:  850. 
Laws  of  state  of  incorporation  as  limi- 
tation upon  powers  of  in- 
surance company.    63:  853. 
Law  of  place  of  performance.     63:  854. 
Law   of   place   where   insured   property 

is  situated.     63:  855. 
Law  of  place  where  loss  occurs,  63:855. 
Construction  and  interpretation  of  tne 
language     of     the    policy. 
63:  856. 
In  general.     63:  856. 
As    to   the   designation    of    benefi- 
ciaries.     63:  856. 
Assignment  of  policy.     63:  858. 
Right  of  insured  to  dispose  of  proceeds; 
validity  of  change  of  ben- 
eficiary.    63:  862. 
Rights  of  creditors  in  proceeds.  63:  862. 
As  to  notice;  forfeiture;  commutation; 
extended    insurance;    sur- 
render value.     63:  862. 
As  to  effect  of  misrepresentation  in  the 

application.     63:  864. 
As  to  valued  policy.     63:  866. 
Suicide.     63:  867. 

As   to   necessity   of   attaching  applica- 
tion,  or   copy   thereof,   to 
policy.     63:  867. 
Transitory  character  of  action.   63:  868. 
As   to   damages  and  interest  ex  mora. 

63:  868. 
As  to   contractual   limitation.     63:  868. 
Miscellaneous.     63:  869. 
Law    governing    notes    given    for   insurance 

premiums.     20:  409. 
§  5.  Contracts  of  married  women. 
Capacity    of    married    woman    to    contract. 
57:513. 
As  between  lex  loci  contractus  and  lex 
domicilii.     57:  513. 
General  rule.     57:  513. 
Exceptions;     when    domicil    is    at 
forum.     57:  517. 
As  between  lex  loci  contractus  and  lex 

fori;   remedy.      57:  520. 
As  between  lex  loci  contractus,  or   lex 
domicilii,  and  lex  rei  sitce. 
57:  523. 
Personal   property.     57:  523. 
Real  property.     57  :  524. 


Enforceability  of  contracts  of  married 
women  outside  of  state  in 
which  they  are  legally 
made.  25:  178. 
Contracts  m  relation  to  real  estate 
situated  where  the  suit  is 
brought.  25:  179. 
Contract   outside   of    state    of    domicil. 

25:  180. 
The  remedy  applicable.     25:  180. 

§  6.  Gambling  and  lottery  contracts. 

Gambling  contracts.     64:  160. 

Public  policy  of  forum;  transitory 
character  of  action. 
64:  160. 
Governing  law  when  public  policy  of 
forum  does  not  interfere. 
64:  165. 

Lottery  contracts.     64:  169. 

§  7.  Contracts  of  sale  of  intoxicating  liquor. 

General  principles.     61:  418. 

Where  executed  contract  consummated;  de- 
livery to  carrier  general- 
ly.    61 :  419. 

When  executory  contract  consummated  in 
one  state  and  executed 
contract  in  another. 
61:424. 

Effect  of  soliciting  order  within  state  hav- 
ing prohibitory  law. 
61:427. 

Public  policy  of  forum;  intention  to  violate 
prohibitory  statute  of 
forum.     61 :  429. 

New  or  substituted  contract.     61 :  433. 

When  sale  invalid  by  law  of  place  where 
made,  but  valid  by  law  of 
forum.    61 :  434. 

§  8.  Statute  of  frauds. 

Generally.  19:  792;  64:  119. 

As  between  law  of  forum  and  substantive 
law  of  contract.     64:  119. 

As  between  law  of  place  where  contract  is 
made  and  that  of  place 
where  it  is-  performable. 
64:  122. 

As  between  law  of  place  where  contract  is 
made  and  that  of  place 
where  property  is  situat- 
ed.    64:  123. 

§  9.  Interest  and  usury. 

Interest  as  Damages,  see  infra.  III.  §  11. 

General  principles;  intention  of  parties. 
62:  33. 

Contractual  interest.     62:  35. 

Usury.     62:  42. 

Effect   of   penal   or   remedial   character 

of  foreign  statute.    62:  42. 

General   principles   governing   choice   of 

law;   intention.     62:  44. 
Rule  that  law  upholding  the  contract 
will  be  applied.     62:  49. 
In  general.     62:  49. 
When    contract    usurious    by     lex 
loci  contractus,  but  valid 
by     lex     loci     solutionis. 
62:  51. 
When    contract    usurious    by    lex 
loci    solutionis,    but    valid 
by     lex     loci     contractus. 
62:  55. 


CONFLICT  OF  LAWS,  III.  (Ed.  Notes.) 


535 


When    claim    of   nsury    based    on 
transaction    with    drawer, 
or  indorser.    62:  59. 
When    usurious   by   both    lex  loci  con- 
tractus and  lex  loci  sulu- 
tionis.     62;  60. 
Effect  of  mortgage  security.     62:  61. 
Place    where    money    is    to    be    used. 

62:  62. 
Lex  loci  considerationis.    62:  63. 
Contracts  of  foreign  building  and  loan 

associations.     62:  64. 
Which    contract    to   be   regarded;    con- 
tract    of     principal     and 
surety.     62:  73. 
Effect   of  restriction   as  to  rate  of  in- 
terest  in   charter  of   cor- 
poration. 62:  76. 
Applicability  of  lex  fori.     62:  76. 
Statute  forbidding  corporation  to  plead 
usury.    62:  79.' 
Does  lex  rei  sitce  ^v^th  respect  to  interest 
and      usury      necessarily 
control    in    an    action    to 
foreclose    a    mortgage    on 
real  property?     .55:  933. 
§  10.  Stockholder's  liability. 
As  to  liability  of  stockholder  of  foreign  cor- 
poration. 6:676;*  13:  .56.* 
As  to  enforcement  of  stockholders'  liability 
outside  of  the  state  of  in- 
corporation.    34:  737. 
§  II.  Measure  of  damages. 
For  Tort,  see  infra,  III.  §  25. 
For  breach  of  contract,  generally.     56:  301; 

62:  37. 
Interest  by  way  of  damages.    56:  303. 

For  breach  of  contract,  or  detention  of 
money  or  other  property. 
56:  303;   62:  37. 
On  foreign  judgments.     56:  309. 

b.  Rights  in  and  title  to  property. 

§  12.  Generally. 

Mechanic's    lien    under    contract    made    in 

other  state.     38:  410. 
§  13.  Matrimonial  property. 
When    lex   domicilii  is   opposed  to   the    lex 
rei  sitce  or  lex  fori.     57: 
353. 
Real  estate,  or  immovables.    57:  353. 
Personal    property,    or   movables.     57: 

354. 
What     law     determines     character     of 
property   as    real    or    per- 
sonal.    57:  359. 
When   law    of    matrimonial    domicil    is    op- 
posed   to    that    of    place 
where    marriage    celebrat- 
ed.    57 :  359. 
How    original    matrimonial    domicil    ascer- 
tained.    57 :  360. 
Change  of  matrimonial  domicil.     57:  363. 
Property  acquired  prior  to  change.     57: 

3G3. 
Property    acquired    after    the     change. 

57:  366. 
Tacit  mortgages  or  liens.     57:  367. 
Marriage  settlements.     57:  36& 


§  14.  Chattel  mortgage. 
As  contract  inter  partes.     64:  353. 
As  a  lien  or  right  prior  to  claims  of  third 
persons.     64:  355. 
Effect   of   removal   of   property   to   an- 
other    judisdiction     after 
execution      of      mortgage. 
64:  355. 
Necessity  of  change  of  possession. 

64:  355. 
Necessity  of  refiling  or  re-record- 
ing in  state  to  which  prop- 
erty removed.    64:  356. 
When  property  located  in  another  state 
at    time    of    execution    of 
mortgage.     64:  361. 
Necessity  of  filing,  or  recording,  or 
change    of    possession    in 
state   where   located.    64: 
361. 
Oath  as  to  consideration.     64:  363. 
Necessity    of    complying    with    law    of 
domicil,      and      of      place 
where  mortgage  executed. 
64:  363. 
.Judgment  in  attachment  as  res  judica- 
ta asrainst  mortgagee.   64: 
366." 
As  between  lex  loci  contractus  and  lex 
domicilii.     64:  366. 
§  15.  Sales  of  personal  property. 
As  to  Statute  of  Frauds,  see  supra,  III.  §  8. 
Distinction    between    personal    rights    and 
obligations   and   rights   in 
property.     64:  823. 
Place  of  contract;   distinction  between  ex- 
ecutory and  executed  con- 
tract.    64:  824. 
Personal  rights   and   obligations   under  the 
contract.     64:  825. 
In    general;    construction    of    contract; 

warranty.     64:  825. 
Laws  prohibiting  or  regulating  the  sale 

of  property.    64:  826. 
As    to    rescission    of    sale    for    fraud; 
resolutory   condition.     64: 
827.  ^ 
As  to  right  to  maintain  action  for  pur- 
chase price  before  expira- 
tion of  credit.     64:  828. 
The  contract  as  affecting  the  title  to,  or  in- 
terest   in,    property.     64: 
828. 
In  general.    64:  828. 

Validity  of  sale  depending  upon  trans- 
fer    of     possession     gen- 
erally.    64:  829. 
Vendor's  lien.     64:  831. 
Conditional  sale.     64:  833. 
§  16.  Assignment  for  creditors;    insolvency 

proceedings;  receivers. 
Law  governing  validity  of  assignment.     17: 

84. 
Priority  of  foreign  assignment  over  subse- 
quent     domestic     attach- 
ment.    17:  85. 
Protection  of  domestic  creditors.     17:  86. 
Transfer  of  property  out  of  the   state  by 
bankruptcy   or  insolvency 
proceedings  or  assi<rnment 
for  creditors.    23 :  33.  [Ses 
infra  for  later  note.] 


536 


CONFLICT  OF  LAWS,  III.  (Ed.  Notes.) 


Personal  property.     23:  33. 

Voluntary  assignments.     23:  33. 
Place   of   assignment.      23:  33. 
Extraterritorial  effect  general- 
ly.    23:  33. 
As     against     attachments     in 

general.     23 :  35. 
Discrimination  in  favor  of  res- 
idents.   23:  37. 
As  to  nonresident  attachment 
creditors     generally.     23 : 
37. 
As     to     attachment     creditors 
residing  in  the  state  where 
the  assignment  was  made. 
23:  38. 
Eflfect  of  assignee's  possession. 
23:  39. 
Assignments  under  insolvency  stat- 
utes.    23:  40. 
In  general.     23:  40. 
As  to  resident  creditors.     23 : 

40. 
As  to  residents  of  state  where 
insolvency     transfer    was 
made.    23:41. 
As  to  other  nonresidents.    23: 

41. 
Eflfect  of  assignee's  possession. 

23:  42. 
Right    of    assignee    to   sue    in 
other  state.  23:42. 
Bankruptcy  transfers.     23:  42. 
English  decisions.     23:  42. 
American  decisions.     23:  43. 
Real  property.     23:  44. 
Ships  on  high  seas.     23:  46. 
As  to  transfer  of  property  out  of  the  state 
by    bankruptcy    or    insol- 
vency  proceedings    or   as- 
signment for  creditors.  65 : 
353. 
Voluntary  assignments.     65:  353. 

When  assignment  regarded  as  vol- 
untary.    65:  353. 
Discrimination    between    residents 
and    nonresidents,    gener- 
ally.    65:  354. 
When   foreign   assignment  not  op- 
posed to    lex  rei  sitw   et 
fori.     65 :  355. 
Law    determining    validity    of    as- 
signments.    65:  358. 
Personal   property.     65:  358. 
General  rule.     65:  358. 
Formal  validity.     65:  358. 
Notice ;      record ;      taking 

possession,     65:  359. 
Preferences.     65:  360. 
Exemptions.     65:  362. 
Assignment     by     corpora- 
tion.    65:  362. 
Real  property.     65:  362. 
Law    determining    assignee's    right 
to  avoid  fraudulent  trans- 
fers and  conveyances.    65 : 
365. 
As  to  effect  of  assignment  to  avoid 
previous      attachment     or 
transfer.     65:  365. 


As  between  law  of  assignor's  dom- 
icil     and    that     of     place 
where    assignment    made. 
65:  365. 
Assignments  under  insolvency  or  bank- 
ruptcy   statutes.     65:  366. 
General  rule.     65:  366. 
Choses  in  action.     65:  367. 
Discrimination    between     residents 
and  nonresidents.    65:  368. 
Right  of  assignee  to  sue  in  other 
state.     65:  369. 
Rights  of  receiver  as  to  property  in  other 

jurisdiction.    23:  52. 
§17.  Devolution  of  property;  wills. 
As  to  descent  of  real  property.     13:  282.* 
Supremacy  of  state  or  nation  over  devolu- 
tion of   property;    law   of 
comity.     17 :  84. 
As  to  will.     8:822;»  10:  766.* 
As  to  validity  of  attempt  to  exercise  power 
of    appointment    by    will. 
64:  892. 
In   ascertaining   donee's  intent   to   exercise 
power     of      appointment. 
64:  892. 

c.    Personal  status  and  relations. 

§  i8.  Validity  of  marriage. 
Manner  or  form  of  solemnization;   prelimi- 
naries.    57:  155. 
Polygamous  marriajres;   temporary  marital 

unions.    57:  159. 
Matrimonial   capacity    of    the    parties.     57: 
161. 
In   general;    lex  loci  or  lex  domicilii; 

public  policy.    '57:  161. 
Incestuous  marriages.     57:  166. 
Marriages  between  members  of  diflfer- 

ent  races.     57:  167. 
Remarriage    of    divorced    person.     24: 

831;    57:  169. 
Former    husband    or    wife    living.     57: 

171. 
Nonage;   consent  of  parents  or  guard- 
ian.   57:  172. 
§  19.  Divorce. 
In  general.     59:  136. 
What  law  determines  right  to  divorce.     59: 

141. 
Jurisdiction  of  subject-matter.     59:  142. 
Domicil.    59:  142. 

General  rule.     59:  142. 
When   neither   party   domiciled   or 
permanently     residing    at 
forum.    59:  143. 
Domicil    of    wife    for    purpose    of 

bringing  suit.     59:  146. 
Domicil   or  residence   of  defendant 
as   condition   of   relief   on 
cross  bill.     59:  149. 
Place  of  marriage  and  of  original  mat- 
rimonial domicil.     59:  151. 
Place  of  marital  offense.     59:  154. 
Time   of  marital   offense  relatively   to 
acquisition    of   domicil    at 
forum.     59:  155. 
Jurisdiction    of   the   person   or   of  the   res  ; 
foreign  decrees  upon  con- 
structive service.     59:  162. 
In  general.     59:  162. 


CONFLICT  OF  LAWS,  IIL  (Ed.  Notes.) 


687 


Decrees     rendered     upon     constructive 
service,      19:  814;    59:  162. 
When     defendant     a    resident     of 
state  where  rendered.    59: 
162. 
When    defendant     ia     nonresident. 
59:  165. 
Custody    of    children    when    international 
elements      involved.      59 : 
177. 
Effect  upon  property  rights  of  divorce  in- 
volving international  ele- 
ments.    59:  178. 
Alimony.    59:  178. 

Award  of,  upon  constructive  serv- 
ice.    59:  178. 
Enforcing    award    of,    in    another 

state.     59:  178. 
Effect  of  divorce  in  one   state  or 
country  upon^right  of  ac- 
tion  for    alimony    in   an- 
other.    59:  180. 
Dower.    59:  181. 

When    divorce    obtained    by    hus- 
band.    59:  181. 
When    divorce    obtained    by    wife. 
59:  182. 
Other  property  rights.    59:  183. 
Impeaching  decree  granted   in  other  state. 
59:  183. 
On  jurisdictional  facts.     59:  183. 
On  the  merits;  fraud.    59:  186. 
Suits  for  same  cause  in  different  jurisdic- 
tions.    59:  187. 
§  20.  Legitimacy;  adoption. 
Legitimacy.     65:  177. 

In  general.     65:  177. 
Applicability     of     lex     rei     sites,     or 
lex   .  domicilii    decedentis. 
65:  177. 
Legitimacy     dependent    upon     va- 
lidity    of     marriage.     65: 
'  177. 

Legitimacy  dependent  upon  acts 
subsequent  to  birth.  65: 
178. 
What  is  proper  law  after  eliminating 
lex  domicilii  decedentis. 
and  lex  rei  sitae,  as  such. 
65:  182. 
Adoption.     65:  186. 

Extraterritorial  effect  of  adoption  of  chil- 
dren.    17:439. 

d.  Remedies. 

§  21.  Generally. 

Injunction  against  suit  in  foreign  jurisdic- 
tion.    21:71. 

Oral  proof  of  foreign  laws.    25:  449. 

§  22.  Attachment;  garnishment. 

Garnishment  of  nonresident  creditor.  19: 
577. 

Where  debt  garnishable.     67 :  209. 

Priority  of  foreign  attachment  over  foreign 
assignment.    17:  88. 

Attachment  or  giarnishment  of  foreign  rail- 
road cars.     64:  501. 

Law  governing  exemption  of  wages  from 
garnishment.    67:  222. 

Evasion  of  exemption  laws  by  garnishment 
in  other  state.     19:  577. 


Action  for  loss   of  exemption  by  garnish- 
ment in  another  state.  19: 
580;   36:582. 
Effect  in  state  where  debt  is  garnished  of 
statutory     exemption     at 
domicil    of    principal    de-' 
fendant.     19:  578. 
§  23.  Limitation  of  action. 
When    statute    of    limitations    will    govern 
action  in  another  state  or 
country.     48:  625. 
General  rule.     48:  625. 
Exceptions.     48:  625. 
Where  there  is  no  statutory  provision 
in  forum   as  to   effect   of 
bar   of    other    state.     48: 
625. 
Contracts.     48:  625. 

In  general.    48:  625. 
Cases    in    which    the    doctrine 
that  the  law  of  the  forum 
governs,  questioned  or  do 
nied.     48:  629. 
When   right    of    action    extin 
guished,     as    well   as    the 
remedy    affected.     48:  630. 
Judgments.     48:  632. 

In  general.    48 :  632. 
Where   right   of   action   extin 
guished    as    well    as    tli 
remedy   affected.     48:  634. 
Decedent's  estates.     48:  634. 
Adverse  possession.    48:  635. 
Usury.     48:  637. 

Liability    of   stockholders.     48  :(!:>?. 
Personal  injuries.     48:  638. 
Death.     48:  639. 
Miscellaneous  cases.    48:  639. 
Where  statutes  of  forum  provide  as  tii 
effect     of    bar    of     other 
state.     48 :  639. 
§  24.  When  proper  foreign  law  not  proved. 
How  case  determined  when  proper  foreign 
law  not  proved.     67:  33. 
Judicial  cognizance  of  foreign  law.    67 : 
33. 
Specific  rules  of  law  of  other  juris 
diction.     67 :  33. 
Law  of  foreign  country.     67 : 

33. 
Law  of  other  state.    67:  34. 
General  system  of  law  upon  which 
foreign      jurisprudence 
based.    67 :  37. 
Different  theories  as  to  proper  practice. 
67:  38. 
In  general.     67:  38. 
Jurisdictions  with  respect  to  which 
the  presumption  in  favor 
of    common    law   may    be 
indulged.    67 :  40. 
Conflict    between    presumption    in 
favor  of  common  law  and 
presumption  that   law   of 
other  jurisdiction  is  same 
as  that  of  forum.     67:  41. 
Application    of    lex    fori    without 
indulging     any     presump- 
tion.    67 :  56. 
Refusal  to  apply  any  substantive 
law.    67:  59. 


538 


CONFUSION;   CONGRESS. 


e.  Torts;  penal  laws;  crimes. 

§  25.  Tort. 

Damages  for,  generally.     56:  312. 

Penalty  as  part  of  recovery.  56:  315. 
As  to  action  for  death  or  bodily  injury.    56: 
193. 
What  law  determines  the  right  of  ac- 
tion.    56:  193. 
Taking  jurisdiction  of  cause  of  action 
arising    outside    of    state. 
56:  J  95. 
Generally.    56:  195. 
Comity;    public      policy;      similar 
statute  at  forum  as  a  con- 
dition.   56:  202. 
Degree    of    similarity    or    dissimi- 
larity.    56 :  204. 
In  general.     56:  204. 
Differences  affecting  amount  of 

recovery.     56:  205.  • 

Differences     affecting     parties 

and  beneficiaries.     56:  206. 

Different     limitations     as     to 

time.     56:  208. 

Other    conditions    of    jurisdiction. 

56:208. 
Penal  statutes.     56:  209. 
Law  applicable  in  action  upon  foreign 
cause   of  action.      56:  210. 
Generally.     56:  210. 
Who  may  sue.     56:  211. 
Place  of  contract.     56:  215. 
Place  of  negligence  or  of  accident. 

56:  216. 
Place  of  accident  or  of  death.     56: 

218. 
As  affected  by  place  of  residence  or 

citizenship.     56:  218. 
When   rules   of    common    law    dif- 
ferently   interpreted.     56: 
219. 
Fellow -servant  rule.     56:  219. 
Contributory    negligence.      56:  221. 
Assumption  of  risk.     56:  221. 
Delegation  of  duty.     56:  222. 
Duty  to  warn.     56:  222. 
Criminal  prosecution  or  attempt  to 
compromise    as    condition. 
56:  222. 
Survival    of    cause   of    action;    re- 
vivor  of   action.     56:  222. 
Distribution  and  beneficiaries.     56: 

222. 
Presumption   and  burden   of  proof 
as  to  negligence.     56:  223. 
Assignment    or    release    of    claim. 
56:  223. 
Measure  of  damages.    56:  312. 
§  26.  Penal  laws. 
Enforcement  of  penal  laws  of  another  state. 

2:  779;*   13:  56.* 
Enforcement     of     foreign     laws     requiring 
affixing   of    stamp    to    in- 
struments.    48:  319. 
Effect  of  penal  or  remedial  character  of  for- 
eign   usurv    statutes.     62: 
42. 
Penalty  as  part  of  recovery  for  tort.   56: 
315. 


§  27.  Crimes. 

What  law  defines  larceny  for  purposes  of 
a  statute  against  bringing 
stolen    property    into    the 
state.     15:  7z2. 
Locality   of   crime   committed   through  the 
agency  of  the  mails  or  of 
carriers.      19:  775. 
Effect  of  prior  conviction  in  other  state  or 
country   to    enhance    pen- 
alty.    34:403. 
Locality    of    crime   committed   by    shooting 
or    striking    across    state 
boundary.     28:  59. 
What  constitutes  the  offense.    28:  59. 
The  question  of  locality.     28:  59. 
Statutory  provisions  regarding.    28:  63. 
Constitutionality  of  such  statutes.    28: 
.  64. 


CONFUSION. 

See  Accession  and  Confusion. 


CONGRESS. 


Power  as  to  Naturalization,  see  Aliens, 
5,  12. 

Liability  to  Suit,  of  Public  Corporation  Cre- 
ated by,  see  Charitable  Institutions. 

Power  of,  Over  Interstate  Commerce,  see 
Commerce. 

Delegation  of  Power  by,  see  Constitutional 
Law,  166-168. 

Inapplicability  to,  of  Provision  against  Im- 
pairment of  Contracts,  see  Constitution- 
al Law,  1110. 

Conclusiveness  of  Decision  of  on  State 
Courts,  see  Courts,  137. 

Power  to  Enact  Regulations  as  to  Health, 
etc.,  see  District  of  Columbia. 

Power  of,  to  Punish  for  Intimidation  of  Ne- 
gro Voters  at  Polls,  see  Elections,  283, 
285. 

Judicial  Notice  of  Acts  of,  see  Evidence, 
12,  13. 

Injunction  against  Certifying  Result  of  Vote 
for  Members  of,  see  Injunction,  251. 

Power  to  Allow  Local  Option,  see  Intoxicat- 
ing Liquors,  50. 

Power  of  as  to  Revenue  Stamps,  see  Inter- 
nal Revenue,  2. 

Power  to  Create  Commission,  see  Interstate 
Commerce  Commission,   1. 

Libel  of  Candidate  for,  see  Libel  and  Slan- 
der, 151. 

Commission  to  United  States  Senator,  see 
Mandamus,  35. 

Compelling  Apportionment  of  Representa- 
tives in,  see  Mandamus,  48. 

Power  over  Marriage,  see  Marriage,  4. 

Construction  of  Act  of,  see  Statutes,  449. 

Presumption  of  Intent  to  Deprive  Govern- 
ment of  Right  to  Sue,  see  United 
States,  3. 

Privilege  of  Member  of,  from  Arrest,  see 
Writ  and  Process,  63,  64. 


CONNECTING  CARRIERS— CONSEQUENTIAL  INJURIES. 


589 


1.  Neither  the  secretary  of  state  nor  the 
supreme  court  of  Florida  has  power  to  pass 
upon  the  legality  of  an  election  of  a  United 
States  senator  by  the  legislature,  or  of  an 
appointment  of  a  sena'tor  by  the  executive 
of  the  state.  The  power  is  in  the  United 
States  Senate  alone.  State  ex  rel.  Fleming 
V.  Crawford,  28  Fla.  441,  10  So.  118,     14:  253 

2.  The  commission  of  a  United  States 
senator  appointed  by  the  governor  should 
be  signed  by  the  governor,  and  sealed  with 
the  great  seal  of  the  state,  and  counter- 
signed by  the  secretary  of  state,  in  accord- 
ance with  Fla.  Const,  art.  4,  §  14,  Id. 

3.  A  state  which  is  entitled  to  increased 
representation  in  Congress  according  to  the 
latest  census  cannot  have  such  representa- 
tion until  Congress  has  made  provision 
therefor;  and  when  the  congressional  ap- 
portionment act  is  made  to  tai^e  effect  in 
the  future  the  state  has  no  remedy  for  the 
denial  of  the  increased  representation  dur- 
ing the  meantime.  State  ex  rel.  Cromelien 
V.  Boyd,  36  Neb.  181,  54  N.  W.  252,      19:  227 

Editorial  Notes. 

Power  of,  to  regulate  commerce.     11:  246.* 

See  also  Commerce,  V. 
Privilege  of  members  of,  as  to   service  of 

process.     23:  632. 
Judicial  notice  of  congressional  acts.  4:  39.* 
Members  of,  as  public  officers.     17 :  247. 

♦  «» 


CONNECTING  CARRIERS. 
See  Carriers,  II.  c. 


CONNIVANCE. 


In  Divorce  Suit,  see  Divorce  and  Separa- 
tion, IV. 

Editorial  Notes. 

As  defense  to  suit  for  divorce.     12:  524.* 
What  is  collusion;  effect  on  suit.     12:  815.* 

CONSCIENCE. 

Prohibition  against  Giving  Christian  Science 
Treatment  as  Interference  with  Rights 
of,  see  Christian  Science. 

Liberty  of,  see  Constitutional  Law,  EC.  d. 


CONSENT. 

To  Abortion,  as  Affecting  Right  of  Action, 

see  Abortion,  2. 
Of  Turnpike  Company  to  Use  of  Bicycle  on 

Sidewalk,  see  Bicycles,  7. 
To  Jurisdiction  of  Court,  see  Courts,  19-21. 
As  Defense  to  Crime,  see  Criminal  Law,  I. 

f;   and  also  infra,  Editorial  Notes. 
Elstoppel  by,  see  Estoppel,  III.  f. 


Presumption  and  Burden  of  Proof  as  to, 
see  Evidence,  II.  e,  4. 

To  Insurance  on  Life  of  Wife,  see  Husband 
and  Wife,  90. 

To  Wife's  Conveyance  of  Separate  Prop- 
erty, see  Husband  and  Wife,  131,  132. 

To  Change  of  Minor's  Domicil,  see  Infants, 
52. 

To  Encumbrance  on  Insured  Property,  see 
Insurance,  390. 

To  Assignment  of  Insurance  Policy,  see  In- 
surance, 689,  701. 

To  Change  of  Beneficiary,  see  Insurance, 
728. 

To  Sale  of  Liquor  to  Minor,  see  Intoxicat- 
ing Liquors,  134,  135. 

Judgment  by,  see  Judgment,  4,  410,  424. 

To  Revival  of  Judgment  against  Partner- 
ship, see  Judgment,  401. 

By  Vendor,  to  Construction  of  Building,  see 
Mechanics'  Liens,  14,  15. 

To  Annexation  of  Land  to  City,  see  Munic- 
ipal Corporations,  24. 

Of  City  to  Placing  Heating  Apparatus  un- 
der Sidewalk,  see  Municipal  Corpora- 
tions, 545. 

To  Levy  of  Tax  for  Library,  see  Municipal 
Corporations,  567. 

To  Adoption  of  Child,  see  Parent  and  Child, 
32-37,  40. 

Of  Husband  to  Operation  on  Wife,  see 
Physicians  and  Surgeons,  31. 

To  Treatment  by  Christian  Science  Healer, 
see  Physicians  and  Surgeons,  49. 

Rape  of  Female  Under  Age  of,  see  Rape, 
6,7. 

To  Daughter's  Marriage  to  Married  Man,  see 
Seduction,  5,  6. 

To  Construction  or  Operation  of  Street 
Railway,  see  Contracts,  473^76;  Emi- 
nent Domain,  44;  Judgment,  297;  Mu- 
nicipal Corporations,  310;  Street  Rail- 
ways, 14-16,  25,  27,  30,  43. 

To  Surrender  of  Street  Railway  Franchise, 
see  Street  Railways,  49. 

To  Use  of  One's  Name  as  Trade  name,  see 
Trade  name,  7. 

Question  for  Jury  as  to,  see  Trial,  229. 

To  Pay  Water  Rates  Charged,  see  Waters, 
593. 

Editorial  Notes. 

As  justification  for  assault.     15:  853. 

To  crime  for  purpose  of  detection,  as  de- 
fense to  prosecution. 
25:  341. 


CONSEQUENTIAL  INJURIES. 

Liability  for,  see  Case,  25. 
From  Condemnation  of  Property,  see  Dam- 
ages, III.  1,  3;  Eminent  Domain,  IH.  e. 

Editorial  Notes. 

See  also  Eminent  Domain,  V.  §  16. 
Extent   of  trespasser's  liability   for   conse- 
quential injuries.     53:  626. 


540 


CONSIDERATION-CONSPIRACY,   L  a. 


CONSIDERATION. 

For  Collection  of  Check,  see  Banks,  198. 

Of  Bills  and  Notes,  see  Bills  and  Notes, 
I.  c. 

Of  Chattel  Mortgage,  see  Chattel  Mortgage, 
II. 

For  Compromise  and  Settlement,  see  Com- 
promise and  Settlement,  4—11. 

Of  Contract,  see  Contracts,  I.  c. 

For  Deed,  see  Deeds,  31. 

Parol  Evidence  as  to,  see  Evidence,  VI.  g. 

Of  Conveyance  Attacked  for  Fraud,  see 
Fraudulent  Conveyances,  II. 

For  Guaranty,  see  Guaranty,  5. 

For  Antenuptial  Contract,  see  Husband  and 
Wife,  161. 

For  Mortgage,  see  Mortgage,  25,  26. 

For  Purchase  of  Mortgage,  see  Mortgage,  97. 

For  Contract  to  Deliver  Telegram,  see  Tele- 
graphs, 43. 

For  Purchase  of  Land,  see  Vendor  and  Pui-- 
chaser,  103,  104. 

Failure  of,  see  Contracts,  816,  818;  Deeds, 
n.  f. 


CONSIGNOR. 


Estoppel  of,  see  Estoppel,  120,  121. 

Levy  on  Consignment,  see  Levy  and  Seiz- 
ure, 3. 

Trust  in  Proceeds  of  Sale  by  Consignee,  see 
Trusts,  216. 


CONSOLIDATION. 


Of  Actions,  see  Action  or  Suit,  II.  b. 

As  Ground  for  Reversal,  see  Appeal  and  Er- 
ror, 855. 

Of  Corporation,  see  Corporations,  II.;  Plead- 
ing, 526b. 

Of  Creditors'  Bills,  see  Appeal  and  Error, 
391 ;  Creditors'  Bill,  19,  32. 

Of  Indictment,  see  Appeal  and  Error,  501; 
Criminal  Law,  187,  228;  Habeas  Cor- 
pus, 55. 

Of  Insurance  Companies,  see  Insurance, 
1336. 

Of  Religious  Societies,  see  Courts,  233,  233a ; 
Religious  Societies,  25;  Wills,  440,  441. 

Of  Railnwds,  see  Bonds,  126;  Statutes,  574. 

Of  Street  Railway,  Injunction  against,  see 
TnjujK-tion,  224;  Street  Railways,  62-65. 

Effert  of.  on  Tax  Exemption,  see  Taxes, 
263-2G6. 


CONSPIRACY. 


I.  In  General. 

a.  General  Rules;   Miscellaneous. 

b.  To  Cheat,  Rob,  or  Steal. 

c.  To  Injure  the  Business  of  Another. 

1.  In  General. 

2.  Boj'cott. 

d.  Of  Laborers;   Strikes. 


II.  In   Restraint   of   Trade,  Commerce,   or 
Competition;  Monopolies. 

a.  In  General. 

b.  Of  Manufacturers    of,   or  Dealers 

in,  Different  Products. 

c.  To  control  Prices  for  Services  Gen- 

erally. 

d.  Of  Railroad  Companies  or  Carriers. 

e.  Of  Insurers. 
HI.  Editorial  Notes. 

Notice  as  Condition  of  Action  for  Damages 
for,   see  Action   or  Suit,  32. 

Assignability  of  Claim  of  Damages  Grow- 
ing Out  of,  see  Assignment,  12;  Cor- 
porations, 130. 

Liability  for  Torts  Done  in  Pursuance  of, 
see  Corporations,  204. 

Criminal  Liability  of  Co-conspirators,  see 
Criminal  Law,  46-52. 

Punishment  for,  see  Criminal  Law,  204. 

Punitive  Damages  for,  see  Damages,  28,  29. 

Proof  of  Connection  with,  see  Evidence, 
2340. 

Necessity  of  Corroborating  Accomplice's 
Testimony,  see  Evidence,  2372-2376. 

Proof  of  Acts  or  Declarations  of  Co-con- 
spirators, see  Evidence,  X.  g,  and  also 
infra,  III.  §  1. 

Jndictment  for,  see  Indictment,  etc.,  38, 
42-44,  64,  97-104. 

Injunction  against,  see  Injunction,  129-152; 
IV.  §  3. 

Limitation  of  Action  for  Injury  by,  see  Lim- 
itation of  Actions,  177,   178. 

Municipal  Liability  for  rarticipation  of  Of- 
ficers in,  see  Municipal  Corporations, 
512. 

Allegations  as  to,  see  Pleading,  106,  391-394, 
406. 

Extraterritorial  Effect  of  Statute  as  to,  see 
Statutes,  424,  483. 

Construction  of  Statute  as  to,  see  Statutes, 
510. 

Effect  of  Re-enacting  Statute  as  to,  see 
Statutes,  614. 

Instruction  as  to,  see  Trial,  679,  680,  739, 
768,  862. 

Accomplice  as  Witness,  see  Witnesses,  17-20. 


I.  In   General. 

a.  General  Rules;  Miscellaneous. 

To  Commit  Abortion,  see  Abortion,  1. 

To  Resist  Arrest,  see  Assault  and  Battery, 

14. 
To  Murder,  see  Courts,  372;  Trial,  162. 
For  Editorial  Notes,  see  infra,  III.  §  1. 

1.  The  term  "conspiracy"  cannot  be  predi- 
cated of  the  deliberate  vote  of  a  governing 
bodv.  Lawson  v.  Hewell.  118  Cal.  613,  50 
Pac!  763,  49:  400 

la.  A  conspiracy  is  an  unlawful  confed- 
eracy or  combination  of  two  or  more  per- 
sons to  do  an  unlawful  act  or  to  accomplish 
an  unlawful  purpose.  The  offense  is  com- 
plete when  the  unlawful  conspiracy,  com- 
bination, or  agreement  is  made;  and  a  crim- 


CONSPIRACY,  I.  b. 


541 


inal  act  done  iu  pursuance  of  the  conspiracy 
is  not  necessary  to  justify  a  conviction  for 
the  crime  of  conspiracy  itself.  United 
States  V.  Lancaster,  44  Fed.  896,       10:  333 

2.  A  mere  declaration  of  the  common  law 
is  made  by  Wis.  Rev.  Stat.  1898,  §  44G6a, 
declaring  what  shall  constitute  an  indicta- 
ble conspiracy,  its  only  effect  being  to  re- 
move the  necessity  for  an  overt  act,  which 
was  required  by  the  change  in  the  com- 
mon law  by  §  4568.  State  ex  rel.  Durner 
V.  Huegin,  110  Wis.  189,  85  N.  W.  1046, 

62:  700 

3.  The  doctrine  that  an  act  which  is  not 
actionable  if  done  by  one,  is  not,  when  done 
by  many,  is  not  the  law  of  Wisconsin.       Id. 

4.  A  charge  of  conspiracy  will  lie  against 
those  concerting  together  to  perpetrate  a 
criminal  act  where  concert  is  not  a  mere 
part  of  it,  but  is  in  aid  of  it  and  is  itself 
criminal,  though  only  one  of  thJ  parties, 
or  neither  one  alone,  could  eflfect  such  pur- 
pose. Id. 

5.  The  doctrine  that,  where  concert  of  ac- 
tion is  necessary  to  an  offense,  a  charge  of 
criminal  conspiracy  does  not  lie,  does  not 
apply  where  the  unlawful  agreement  is  of 
itself  an  offense,  but  applies  only  where  the 
agreement  and  the  consummation  thereof 
are  so  closely  connected  that  the  two  con- 
stitute really  but  one  offense.  Id. 

6.  The  consummation  of  an  agreement  to 
commit  acts  which  result  in  the  perversion 
and  obstruction  of  justice  will  not  warrant 
a  conviction  under  a  statute  making  a  con- 
spiracy to  commit  acts  for  that  purpose  a 
misdemeanor,  unles.?  it  appears  that  the 
acts  were  designed  to  have  that  effect.  Peo- 
ple V.  Flack,  125  N".  Y.  324,  26  N.  E.  267, 

11:  807 

7.  A  criminal  intent  is  a  material  element 
in  the  crime  of  conspiracy.  Hence  on  the 
trial  of  an  indictment  for  such  crime  the 
criminal  intent  may  be  denied  and  the  de- 
nial supported  by  evidence.  Id. 

8.  Civil  liabilities  may  ensue  by  reason  of 
a  conspiracy  to  commit  that  which  is  not 
made  unlawful  by  statute.  Longshore 
Printing  &  Pub.  Co.  v.  Howell,  26  Or.  527, 
38  Pac.  547,  28:  464 

9.  It  requires  more  than  proof  of  mere 
passive  cognizance,  on  the  part  of  a  prison- 
er, of  a  crime,  to  sustain  a  charge  of  con- 
spiracy; the  jury  must  find  that  such  pris- 
oner did  some  act  or  made  some  agreement 
showing  an  intention  to  participate  in  some 
way  in  such  conspiracy.  United  States  v. 
Lancaster,  44  Fed.  896,  10:  333 

10.  An  unlawful  combination  to  injure, 
oppress,  threaten,  and  intimidate  a  citizen 
of  the  United  States  in  the  free  exercise  of 
a  right  and  privilege  secured  to  him  by  the 
Constitution  and  laws  of  the  United  States, 
and  because  of  his  having  so  exercised  the 
same,  is  a  conspiracy  indictable  and  punish- 
able under  U.  S.  Rev.  Stat.  §  5508,  U.  S. 
Comp.  Stat.  1901,  p.  3712.  Id. 

11.  Where  a  citizen  of  the  United  States 
is  interested  in  a  decree  of  a  circuit  court 
of  the  United  States,  and  where  it  has  be- 
come necessary  for  him  to  sue  out  attach- 
ments for  contempt  to  enforce  respect  for 


said  decree  and  obedience  to  the  same,  and 
to  punish  violations  thereof,  a  conspiracy 
U>  injure,  oppress,  threaten,  and  intimidate 
him  because  of  the  exercise  of  his  right  to 
apply  for  such  relief  is  a  violation  of  the 
statutes  of  the  United  States.  Id. 

12.  If,  in  pursuance  of  an  unlav/fui  con- 
spiracy to  pi'event  enforcement  of  a  decree 
of  a  Federal  court,  the  conspiratoi-s  mur- 
dered the  agent  of  the  party  against  whom 
the  conspiracy  is  directed,  it  is  indictable 
and  punishable  under  U.  S.  Rev.  Stat.  § 
5509,  U.  S.  Comp.  Stat.  1901,  p.  3712,  as 
such  crimes  are  punished  by  the  laws  of  the 
state  in  which  the  murder  was  committed. 

Id. 

13.  Where  a  city  officer  corruptly  agrees 
with  another  person  that  the  latter  shall 
buy  certain  property  selected  by  a  board  of 
which  the  officer  is  a  member  as  suitable 
for  a  certain  public  purpose,  and  that  the 
officer  will  use  his  influence  to  induce  tiie 
board  to  purchase  it  from  the  other  at  an 
advanced  price,  the  profits  to  be  divided 
between  them;  and  the  fraud  is  consum- 
mated by  means  of  the  officer's  information 
and  influence, — they  are  alike  liable  to  the 
city  for  the  injury  sustained.  Boston  v. 
Simmons,  150  Mass.  461,  23  N.  E.  iilO, 

6:  629 

14.  Persons  who  conspire  to  make  infants 
parties  plaintiff  to  an  action  without  lawful 
authority  are  liable  to  the  infants  for  the 
damages  sustained  by  them.  Hackett  v.  Mc- 
Millan, 112  N.  C.  513,  17  S.  E.  433,  21:  862 
To  engage  in  prize  fight. 

15.  An  agreement  to  engage  in'  a  prize 
fight  is  a  conspiracy  to  commit  a  crime.  Se- 
ville v.  State.  49  Ohio  St.  117,  30  N.  E. 
621,  15:  516 

b.  To  Cheat,  Rob,  or  Steal. 

Review  of  Verdict  as  to,  see  Appeal  and 
Error,  738. 

To  Dispose  of  Debtors  Property  Fraudu- 
lently, see  Case,   15. 

Compelling  Accounting  for  Profits  on  Con- 
spiracy to  Defraud,  see  Contracts,  619. 

16.  The  fact  that  a  person  from  whom 
money  was  obtained  by  a  conspiracy  to 
cheat  knew  that  the  representations  were 
false,  and  was  in  fact  a  detective,  does  not 
relieve  the  conspirators  from  crimmal  re- 
sponsibility, as  the  conspiracy  was  complete 
when  formed,  and  their  guilt  or  innocence 
did  not  depend  upon  the  success  of  the  en- 
terprise. People  V.  Oilman,  121  Mich.  187, 
80  X.  W.  4,  46:  218 

17.  Criminal  responsibility  for  a  con- 
spiracy to  cheat  by  materializing  seances  of 
a  professed  medium  cannot  oe  avoided  on 
the  ground  that  no  crime  was  committed 
because  it  was  an  obvious  humbug  which,  in 
the  nature  of  things,  could  not  deceive  any 
national  being.  Id. 

18.  A  conspiracy  to  rob  may  be  proved 
by  facts  and  circumstances  sufficient  to  sat- 
isfy the  jury  of  its  existence,  and  it  is  not 
necessary  to  show  that  the  accused  persons 


542 


CONSPIRACY,  I.  c,  1. 


met  and  actually  agreed  jointly  to  under- 
take the  perpetration  of  the  robbery.  Peo- 
ple V.  Lawrence.  143  Cal.  148,  76  Pac.  893, 

68:  193 

19.  Persons  cannot  be  convicted  of  con- 
spiracy to  commit  larceny,  if  they  merely 
adopt  a  scheme  which  is  suggested  to  them 
by  a  detective  and  which  has  received  the 
approval  of  the  owner  of  the  property.  Con- 
nor V.  People,  18  Colo.  373,  33  Pac.  159, 

25:  341 

e.  To  Injure  the  Business  of  Another. 
1.  In  General. 

Injury  to  Business  in  Absence  of  Conspiracy, 

see  Case,  16-20. 
Allegation  as  to,  sec  Pleading,  393. 
See  also  infra,  141. 
For  Editorial  Notes.,  see  infra,  III.  §  1. 

20.  Competition,  though  malicious,  if  car- 
ried on  to  get  customers  away  from  a  rival 
and  obtain  business  for  one's  self,  is  not  un- 
lawful if  the  customers  are  not  induced  to 
violate  any  contract.  West  Virginia  Transp. 
Co.  V.  Standard  Oil  Cd.  50  W.  Va.  611,  40 
S.  E.  591,  56:  804 

21.  A  combination  of  several  persons  to 
do  a  lawful  act,  violative  of  no  duty  to  an- 
other due  from  them,  is  not  an  unlawful 
conspiracy  subjecting  them  to  an  action  by 
him,  though  the  act  injures  him,  and  was 
so  intended.  Id. 

22.  A  conspiracy  to  wrongfully  injure  an- 
other is  "actionable  at  the  common  law  if 
executed  to  the  damage  of  another,  whether 
that  other  would  have  a  remedy  if  the  act 
were  committed  by  a  single  person  or  not, 
or  whether  one  person  could  commit  such 
injury  alone.  State  ex  rel.  Burner  v.  Hue- 
gin,  110  Wis.  189,  85  N.  W.  1046,         62:  700 

23.  The  term  "malicious  iniury"  as  used 
in  Wis.  Rev.  Stat.  1898,  §  446'6a,  is  synony- 
mous with  that  term  in  the  law  of  conspir- 
acy  independent   of  the   statute.  Id. 

24.  The  doctrine  that  an  act  lawful  with- 
out malice  does  not  become  unlawful  by 
adding  such  element,  as  applied  to  a  com- 
bination of  persons  to  wrongfully  injure 
another,  is  not  the  law  of  Wisconsin.         Id. 

25.  All  agreements  to  maliciously  injure 
another  in  any  way  are  contrary  to  the 
policy  of  the  law,  and  legislative  authority 
is  ample  to  outlaw  such  agreements  to  the 
extent  of  making  the  participants  therein 
liable  civilly  and  criminally.  Id. 

26.  A  combination  of  individuals  for  the 
purpose  of  inflicting  a  malicious  injury  up- 
on another  is  in  effect  an  agreement  to  in- 
jure by  violence,  and  it  was  the  policy  of 
the  common  law,  as  it  is  of  Wis.  Rev.  Stat. 
1898,  §  446Ga,  to  prevent  such  a  wrong  by 
civil  and  criminal  liabilities.  Id. 

27.  A  combination  of  persons  to  injure 
another  without  any  just  cause,  such  as  an 
injury  that  is  not  an  incidental  effect  of  the 
promotion  of  the  legitimate  interests  of  the 
members  of  the  combine,  is  a  conspiracy  to 
inflict  a  malicious  injury  upon  another  at 
common   law,  and  is  such  an  injury  under 


the  statute  (Wis.  Rev.  Stat.  1898,  §  4466a) 
if  it  relates  to  such  other's  reputation,  busi- 
ness, trade,  or  profession.  Id. 

28.  An  action  will  lie  for  a  combination 
or  conspiracy,  by  fraudulent  and  malicious 
acts,  to  drive  a  trader  out  of  business,  re- 
sulting in  damages.  Van  Horn  v.  Van  Horn 
(N.  J.  Sup.)  52  N.  J.  L.  284,  20  Atl.  485, 

10:  184 

39.  The  gravamen  in  a  civil  action  for  a 
combination  or  conspiracy,  by  fraudulent 
and  malicious  acts,  to  drive  a  trader  out  of 
business,  is  not  the  conspiracy,  but  the 
malice;  and  the  conspiracy  is  matter  of  ag- 
gravation or  inducement  only,  in  pleading 
and  evidence,  of  which  one  or  all  of  the  de- 
fendants may  be  found  guilty.  Id. 

30.  Several  persons,  conducting  independ- 
ent business  enterprises,  may,  in  the  ab- 
sence of  a  statute,  combine  to  control  prices 
for  the  purpose  of  promoting  their  indi- 
vidual interests,  and  in  their  operations  to 
that  end  imnoverish  a  rival  and  drive  him 
out  of  business,  there  being  no  malicious  in- 
tent in  their  conduct,  using  the  term  in  the 
sense  of  malice  in  law.  State  ex  rel.  Bur- 
ner V.  Huegin,  110  Wis.  189,  85  N.  W.  1046, 

62:  700 

31.  An  agreement  between  several  inde- 
pendent concerns,  each  publishing  a  news- 
paper and  furnishing  thereby  means  for  ad- 
vertising, to  compel  a  fourth  person  en- 
gaged in  like  business  to  reduce  his  rates 
for  advertising  or  lose  customers  indicates 
a  malicious  purpose  to  injure  the  business 
of  the  latter  within  the  meaning  of  Wis. 
Rev.  Stat.  1898,  §  4466a.  Id. 

32.  A  conspiracy  to  get  all  its  customers 
away  from  a  pipe-line  company,  when  en- 
tered into  by  other  companies  having  a  com- 
mon interest  and  owned  by  the  same  men, 
which  are  engaged  in  producing,  refining, 
and  selling  oil,  is  not  unlawful,  although  it 
is  carried  out  with  the  malicious  intent  to 
ruin  the  pipe-line  company  by  establishing 
a  rival  pipe  line  and  by  refusing  to  purchase 
any  oil  shipped  through  the  line  of  the  for- 
mer, or  to  allow  any  leases  to  be  held  in 
the  territory  under  their  control  by  pro- 
ducers who  ship  oil  through  that  line.  West 
Virginia  Transportation  Co.  v.  Standard  Oil 
Co.  50  W.  Va.  611,  40  S.  E.  591,         56:  804 

33.  An  action  lies  against  parties  who, 
through  conspiracy,  induce  another  to  break 
his  contract  to  the  injury  of  the  one  by 
whom  the  action  is  brought.  Raymond  v. 
Yarrington,  96  Tex.  443,  73  S.  W.  800, 

62:  962 

34.  Merchants  cannot  be  held  liable  for 
conspiracy  by  offering  goods  of  a  certain 
manufacturer,  which  they  own,  at  a  cut 
price  for  the  purpose  of  injuring  his  trade 
and  depressing  the  market  value  of  his  prod- 
uct. Passaic  Print  Works  v.  Ely  &  W.  Bry 
Goods  Co.  44  C.  C.  A.  426,  105  Fed.  163, 

62:  673 

35.  The  private  rights  or  interests  of  a 
dealer  in  plumbers'  supplies  are  injured  or 
put  in  hazard  by  proceedings  of  an  incor- 
porated plumbers'  supply  association  which 
is  not  engaged  in  the  trade  and  with  which 


CONSPIRACY,  I.  c,  2. 


548 


he  has  no  dealings  nor  any  relation  by 
which  its  legitimate  interests  are  affected 
by  the  question  whether  he  shall  have  cred- 
it in  the  market,  when  it  officiously  and 
without  right  assumes  to  notify  sellers  of 
such  goods  that  he  has  not  paid  his  ac- 
counts, and  to  debar  a  considerable  number 
of  dealers  from  selling  to  him  upon  credit. 
Hartnett  v.  Plumbers'  Supply  Asso.  169 
Mass.  229,  47  N.  E.  1002,  38:  194 

36.  A  conspiracy  to  injure  one's  business 
is  not  per  se  indictable.  State  v.  Van  Pelt, 
136  N.  C.  633,  49  S.  E.  177,  68:  760 

2.  Boycott. 

As  to  Boycott  Instigated  by   Single  Indi- 
vidual, see  Boycott. 
Injunction  against,  see  Injunction,  129-152. 
Allegation  as  to  Blacklisting,  see  Pleading, 
49.  '•• 

For  Editorial  Notes,  see  infra.  III.  §  1. 

37.  A  boycott  is  an  illegal  conspiracy  in 
restraint  of  trade.  Casey  v.  Cincinnati 
Typographical  Union  No.  3,  45  Fed.  135, 

12:  193 

38.  Any  man,  unless  under  contract  obli- 
gation, or  unless  his  employment  charges 
him  with  some  public  duty,  has  a  right  to 
refuse  to  work  for  or  deal  with  any  man  or 
class  of  men,  as  he  sees  fit;  and  this  right, 
which  one  man  may  exercise  singly,  any 
number  may  agree  to  exercise  jointly.  Bohn 
Mfg.  Co.  V.  Northwestern  Lumberman's 
Asso.  54  Minn.  223,  55  N.  W.   1119, 

21:  337 

39.  A  boycott  is  a  combination  of  several 
persons  to  cause  loss  or  injury  to  a  third 
person  by  causing  others,  against  their  will, 
to  withdraw  from  him  their  beneficial  busi- 
ness intercourse,  through  threats  that,  un- 
less a  compliance  with  their  demands  be 
made,  the  persons  forming  the  combination 
will  cause  loss  or  injury  to  him;  or  an 
organization  formed  to  exclude  a  person 
from  business  relations  with  others  by  per- 
suasion, intimidation,  or  other  acts  which 
tend  to  violence,  and  thereby  cause  him, 
through  fear  of  resulting  injury,  to  submit 
to  dictation  in  the  management  of  his  af- 
fairs. Gray  v.  Building  Trades  Council,  91 
Minn.  171,  97  N.  W.  663,  63:  753 

40.  Actual  violence  or  threat  of  violence 
is  not  needed  to  make  a  boycott  unlawful, 
when  intimidation  and  coercion  are  em- 
ployed to  prevent  persons  from  dealing  with 
the  person  boycotted.  Beck  v.  Railway 
Teamsters'  Protective  Union,  118  Mich.  497. 
77  N.  W.  13,  42:  407 

41.  Intimidation,  coercion,  or  threats  of 
injury  are  essential  elements  of  a  boycott; 
but  what  would  constitute  aots  of  that  char- 
acter must  depend  upon  the  facts  of  each 
particular  case.  Gray  v.  Building  Trades 
Council,  91  Minn.  171,  97  N.  W.  663, 

63:  753 

42.  A  malicious  conspiracy  to  injure  a 
dealer  by  refusing  to  deal  with  him  and 
by  inducing  others  to  do  likewise,  when  not 
made  with  the  purpose  of  serving  any  legiti- 
mate interest  of  the  conspirators,  renders 
them  liable  for  the  damaares  caused  if  his 


business  is  ruined  in  consequence.  Ertz  v. 
Produce  Exchange,  79  Minn.  140,  81  N.  W. 
737,  48:  90 

43.  A  combination  of  two  or  more  per- 
sons to  injure  one  in  his  trade  by  inducing 
his  employees  to  break  their  contract  with 
him,  or  to  decline  to  continue  longer  in  his 
employment,  is,  if  it  results  in  damage,  ac- 
tionable. Employing  Printers'  Club  v.  Dr. 
Blosser  Co.   122  Ga.  509    50  S.  E.  353, 

69:  90 

44.  A  conspiracy  to  injure  one's  business 
is  not  made  indictable  because  of  the  means 
employed  to  effectuate  it,  where  they  con- 
sist in  notifying  him,  by  a  committee  of 
three,  that  he  will  not  be  considered  in  sym- 
pathy with  organized  labor  unless  he  em- 
ploys only  union  men,  which  would  involve 
his  breaking  contracts  with  others,  and,  up- 
on his  refusal  to  do  so,  publishing  in  a  news- 
paper the  fact  that  he  is  unfair,  together 
with  a  statement  that  Union  men  will  there- 
after refuse  to  work  material  from  his  shop. 
State  V.  Van  Pelt,  136  N.  C.  633,  49  S.  E. 
177,  '  68:760 

45.  A  voluntary  association  of  a  large 
number  of  retail  lumber  dealers,  by  which 
they  mutually  agreed  that  they  would  not 
deal  with  any  manufacturer  or  wholesale 
dealer  who  should  sell  lumber  directly  to 
consumers  not  dealers,  at  any  point  where  a 
member  of  the  association  was  carrying  on 
a  retail  yard,  providing  in  the  by-laws  that, 
whenever  any  wholesale  dealer  or  manu- 
facturer made  any  such  sale,  their  secretary 
should  notify  all  the  members  of  the  fact, 
without  providing  for  any  coercion  to  pre- 
vent them  from  dealing  with  him,— is  not 
unlawful.  Bohn  Mfg.  Co.  v.  Northwestern 
Lumbermen's  Asso.  54  Minn.  223,  55  N.  W. 
1119,  21:  337 

46.  A  combination  of  retail  lumber  deal- 
ers to  destroy  the  business  of  brokers  and 
commission  dealers  who  do  not  keep  a  lum- 
ber-yard with  an  assorted  stock  of  lumber, 
by  coercing  wholesalers  to  refuse  to  make 
sales  to  such  brokers  or  lose  the  business  of 
the  members  of  such  combination,  is  un- 
lawful and  renders  a  member  who  procures 
action  by  the  association  to  the  injury  of 
brokers  liable  to  the  latter  for  damages. 
Jackson  v.  Stanfield,  137  Ind.  592,  36  N.  E. 
345,  37  N.  E.  14,  23:  588 
Against  mjerchant. 

See  also  infra,  151. 

47.  No  boycott  against  a  merchant  is  ef- 
fected by  the  refusal  by  the  manufacturers 
of  a  proprietary  medicine,  at  the  instance  of 
a  voluntary  association  of  merchants  en- 
gaged in  the  same  line  of  business,  to  give 
him  a  rebate  from  the  selling  price  of  the 
medicines  unless  he  will  maintain  the  price 
to  consumers.  John  D.  Park  &  Sons  Co.  v. 
National  Wholesale  Druggists'  asso.  175  N. 
Y.  1,  67  N.  E.  136.  62:632 

48.  A  merchant  of  large  means,  who  is  in 
position,  by  reason  of  large  orders,  to  ob- 
tain more  advantageous  prices  from  manu- 
facturers than  others,  so  that  he  can  under- 
sell them  in  the  market,  has  no  cause  of 
complaint  if  they  combine,  and,  by  repre- 
sentation and  persuasion,  induce  the  manu- 


544 


CONSPIRA.CT.  I.  c,  3. 


facturers  to  refuse  to  sell  to  him  unless  he 
will  agree  to  maintain  prices  to  consumers. 

Id. 

49.  The  adoption  of  a  plan  for  the  sale 
of  their  product,  by  manufacturers  of  pro- 
prietary medicines,  as  proposed  by  an  as- 
sociation of  wholesale  dealers,  which  results 
in  a  refusal  to  sell  to  complainant,  is  not 
shown  to  have  been  compelled  by  threats  or 
intimidation  by  allegations  that  the  manu- 
facturers were  prevented  from  selling  to 
complainant  for  the  reason  that  they  wished 
to  protect  themselves  "with  the  wholesale 
and  jobbing  druggists,"  and  that  the  com- 
mittee of  the  association  recommended  "that 
continuing  and  untiring  opposition  be  shown 
to  the  sale  of  those  articles  of  those  pro- 
prietors who  do  not  adopt"  the  plan.        Id. 

50.  A  combination  of  mercantile  dealers 
to  compel  another  dealing  in  similar  goods 
to  sell  at  prices  fixed  by  it,  or,  upon  his 
refusal  so  to  do,  to  prevent  those  of  whom 
its  members  are  purchasing  customers  from 
selling  goods  to  him,  is,  upon  general  legal 
principles  contrary  to  public  policy  and 
void,  and  the  members  of  such  a  combina- 
tion may  be  restrained  collectively  or  indi- 
vidually, by  appropriate  injimction,  from 
carrving  into  effect  such  purpose.  Brown  v. 
Jacobs  Pharmacy  Co.  115  Ga.  429,  41  S.  E. 
553,  57 :  547 

51.  The  restriction  by  a  manufacturer,  a 
corporation,  and  its  employee,  of  the  sales 
of  its  products  to  those  who  refrain  from 
dealing  in  the  commodities  of  its  compet- 
itors, by  fixing  the  prices  of  its  goods  to 
those  who  do  not  thus  refrain  so  high  that 
their  purchase  is  unprofitable,  while  it  re- 
duces the  prices  to  those  who  decline  to 
deal  in  the  wares  of  its  competitors,  so  that 
the  purchase  of  the  goods  is  profitable  to 
them, — is  not  violative  of  the  anti-trust  act 
of  July  2,  1890.  Whit  well  v.  Continental 
Tobacco  Co.  60  C.  C.  A.  290,  125  Fed.  454. 

64:  689 

52.  Communicating  with  customers  of  a 
merchant  in  furtherance  of  a  conspiracy  to 
ruin  his  business,  for  the  purpose  of  indu- 
cing, persuading,  or  compelling  them  by 
threats  or  intimidation  to  withhold  their 
custom  from  him,  is  wrongful  and  illegal. 
Mv  Maryland  Lodge,  No.  186  v.  Adt,  100 
Md.  238,  59  Atl.  721,  68:  7.52 
By  associations  generally. 

Punitive  Damages  for,  see  Damages,  28. 
See  also  supra,  45. 

53.  The  fact  that  members  of  an  associa 
tion  voluntarily  assumed  its  obligations  in 
the  first  instance  does  not  make  legal  a  by- 
law which,  by  fine  or  penalty,  compels  them 
to  act  in  concert  in  withdra\^nng  their  pat- 
ronage from  another  person.  Boutwell  v. 
Marr,  71  Vt.  1,  42  Atl.  607,  43:  803 

54.  Withdrawal  of  patronage  from  a  per- 
son by  members  of  an  association  by  con- 
certed action  becomes  illegal  when  the  con- 
cert of  action  is  procured  by  the  coercion  of 
a  by-law  which  imposes  a  fine  or  penalty 
upon  any  member  who  violates  it.  Id. 

55.  Members  of  a  trade  association  who 
combine  to  induce  or  conii),'l  other  persons 
not  to  deal  or  enter  into  contracts  with  one 


who  will  not  join  the  association  or  oonform 
his  prices  to  thos^  fixed  by  the  association 
will  be  liable  for  the  injuries  caused  to  him 
by  loss  of  business  resulting  from  such  com- 
bination. Doremus  v.  Hennessy,  176  111. 
608,  52  N".  E.  924,  43:797 

56.  An  action  will  lie  on  behalf  of  a  quar- 
ry owner  against  members  of  a  voluntary 
association  of  dealers  in  stone  of  which  he 
is  "not  a  member  who  enforce  a  by-law  of 
the  association  imposing  a  fine  upon  mem- 
bers who  deal  with  those  who  are  not  mem- 
bers, so  that  members  who  desire  to  deal 
with  nonmembers  are  coerced  from  doing 
so,  to  the  ruination  of  the  business  of  the 
quarry  owner.  Martell  v.  White,  185  Mass. 
255,  69  N.  E.  1085,  64:  260 
By  employers'  association. 

Validity  of  Statute  Prohibiting  Combina- 
tions to  Prevent  Employment,  see 
Blacklisting,  1. 

Liability  Where  Agreement  is  not  Carried 
Out,  see  Blacklisting,  4. 

57.  Sending  notices  to  wholesalers  that 
members  of  an  employers'  organization 
formed  to  resist  a  demand  by  workmen  for 
an  increase  in  wages  will  withdraw  their 
patronage  if  sales  are  made  to  persons  ac- 
quiescing in  the  workmen's  demand  is  not 
such  coercion  or  threat  as  will  render  the 
combination  unlawful.  Cote  v.  Murphy,  159 
Pa.  420,  28  Atl.  190,  23:135 

58.  A  combination  of  employers  to  resist 
an  advance  in  wages  determined  upon  by  an 
association  of  employees,  by  refusing  to  sell 
to  any  persons  who  concede  such  advance, 
is  not  an  unlawful  conspiracy  since  the  pas- 
sage of  the  Pennsylvania  statute  making  it 
lawful  for  employees  to  combine  to  raise 
wages,  and  to  persuade  by  all  lawful  means 
others  from  working  for  a  less  sum,  since 
such  combination  is  not  to  lower  the  price 
of  wages  as  regulated  by  supply  and  de- 
mand, but  to  resist  an  artificial  price  made 
by  a  combination,  which  by  statute  is  law- 
ful. Id. 

59.  That  one  whose  business  is  injured  by 
a  combination  of  employers  to  resist  a  de- 
mand of  workmen  for  an  increase  of  wages 
is  not  a  workman  nor  a  member  of  a  work- 
men's union  will  not  entitle  him  to  recover 
his  damages  from  the  members  of  the  com- 
bine, if  the  combination  was  lawful  as  to 
the  workmen  and  he  had  undertaken  to  aid 
their  cause.  Id. 
By  labor  union. 

Conspiracy  by  Labor  Unions  Generally,  sec 

infra,  I.  d. 
Injunction  against,  see  Injunction,  133-142. 
See  also  infra,  76,  81. 

60.  It  is  not  criminal  for  a  labor  union 
to  publish  a  statement  that  a  merchant  is 
unfair,  and  that  its  members  will  not  work 
material  sold  by  him,  for  the  purpose  of  in- 
ducing the  public  to  refrain  from  purchasing 
material  from  him  for  fear  of  incurring  the 
ill-will  of  the  union.  State  v.  Van  Pelt. 
136  N.  C.  633,  49  S.  E.  177,  68:760 

61.  A  boycott  by  a  combination  of  labor 
unions  against  firms  which  they  have  placed 
on  the  "unfair"  list,  because  of  their  em- 
ployment of  nonunion  men,  which  consists 


CONSPIRACY,    I.  d 


545 


in  threatening  customers  or  prospective  cus- 
tomers that,  if  they  attempt  to  deal  with 
the  boycotted  firms,  the  unions  will  make  it 
impossible  to  transact  business  with  them, 
and  will  see  that  they  shall  be  unable  to  get 
men  to  carry  on  their  work, — will  be  en- 
joined as  an  unlawful  conspiracy.  Gray  v. 
Building  Trades  Council,  91  Minn.  171,  97 
N.  W.   663,  63:  753 

62.  An  incorporated  labor  union  is  liable 
for  the  damages  sustained  by  a  nonunion 
man  whose  discharge  from  service  was 
caused  by  the  threats  of  the  union  to  pro- 
claim that  the  employer's  house  was  a  non- 
union one,  giving  him  to  understand  that 
his  business  would  suffer  great  loss  in  con- 
sequence. Lucke  V.  Clothing  Cutters  &  T. 
Assembly,  No.  7507,  K.  of  L.  77  Md.  396, 
26  Atl.  505,  19:  408 

63.  A  notice  by  a  labor  union  to  an  em- 
ployer that  all  labor  organizations  of  the 
city  will  be  notified  that  his  house  is  a 
nonunion  one  if  he  retains  a  certain  non- 
vmion  man  in  his  employ  is  a  sufficient  threat 
of  loss  or  injury  to  the  employer  in  case  he 
retains  the  nonunion  man,  to  make  the 
imion  responsible  for  the  discharge  of  such 
employee.  Id. 

63a.  Embarrassment  in  business  result- 
ing to  a  person  by  reason  of  nonmember- 
ship  in  a  protective  union,  and  arising  from 
the  refusal  of  those  engaged  in,  or  connect- 
ed with,  a  similar  business  to  deal  with  or 
work  for  him,  although  influenced  by  obliga- 
tions voluntarily  assumed  by  such  persons  in 
becoming  members  of  the  union,  or  by  rep- 
resentations made  to  them  by  inaividual 
members  thereof,  gives  no  right  of  action  to 
the  person  embarrassed,  against  either  the 
union  or  the  individuals  so  influenced. 
Thomas  v.  Musical  Mut.  Prot.  Union,  121 
N.  Y.  45,  24  >..  E.  24,  8:  175 

By  undertakers. 
Right  to  Refuse  to  Deal  with  a  Person,  see 

Compulsory  Service,  2,  3. 
Damages  for,  see  Damages,  29,  569. 

64.  It  is  not  unlawful  for  the  undertakers 
of  a  community  to  associate  themselves  to- 
gether, and  agree  to  refuse  to  render  serv- 
ice in  their  business  to  one  who  has  refused 
or  failed  to  pay  a  bill  due  to  some  member 
of  the  association  for  similar  services  previ- 
ouslv  rendered.  Brewster  v.  C.  Miller's  iSons, 
101  Ky.  368,  41  S.  W.  301,  38:  505 
By  plumbers. 

65.  An  agreement  among  the  members  of 
an  association  of  plumbers  not  to  deal  with 
wholesale  dealers  who  sell  to  any  who  are 
not  members  of  the  association,  and  the 
sending  of  notices  to  that  end,  do  not  con- 
stitute an  unlawful  conspiracy,  since  the 
object  of  the  combination  and  the  means 
adopted  for  its  accomplishment  are  lawful. 
Macauley  v.  Tierney.  19  R.  I.  255,  33  Atl.  1, 

37 :  455 

66.  Notice  by  a  plumbers'  association  that 
it  will  withdraw  its  patronage  from  whole- 
sale dealers  who  sell  to  any  who  are  not 
members  of  the  association  is  not  unlawful, 
although  the  cause  and  excuse  for  the  notice 
are  the  selfish  purpose  of  the  association  to 

L.R.A.  Dig.— 35. 


rid  its  members  of  the  competition  of  those 
who  are  not  members.  Id, 

Picketing  premises. 
As  to  Patrol  by  Strikers,  see  infra,  85-87. 

67.  To  picket  the  premises  of  a  person 
boycotted,  in  order  to  intercept  his  team- 
sters or  prevent  persons  going  there  to 
trade,  is  unlawful,  being  an  act  of  intimida- 
tion and  an  unwarrantable  interference  with 
the  right  of  free  trade.  Beck  v.  Railway 
Teamsters'  Protective  Union,  118  Mich.  497, 
77  N.  W.  13,  42:  407 

d.  Of  Laborers;    Strikes. 

Boycott  by  Labor  Union,  see  supra,  60- 
63a. 

Boycott  by  Employer's  Association,  see  su- 
pra, 67;  infra,  68,  69. 

See  also  infra,  160-166. 

For  Editorial  Notes,  see  infra,  m.  §  1. 

68.  Trades  unions  are  not  within  and  of 
themselves  unlawful  combinations.  Long- 
shore Printing  &  Pub.  Co.  v.  Howell,  26  Or. 
527,  38  Pac.  547,  28:  464 

69.  Illegal  combinations  are  not  sanc- 
tioned in  any  degree  by  the  act  of  Congress 
of  June  29,  1886,  legalizing  the  incorporation 
of  national  trades  unions.  Arthur  v.  Oakes, 
63  Fed.  310,  24  U.  S.  App.  239,  11  C.  C.  A. 
209,  25:414 

70.  A  combination  of  laborers  to  maintain 
wages  or  limit  the  number  of  apprentices  ia 
not  contrary  to  public  policy.  Longshore 
Printing  &  Pub.  Co.  v.  Howell,  26  Or.  527, 
38  Pac.  547,  28:  464 
To  compel  discharge  of  employee. 

See  also  supra,  62,  63;  Master  and  Sei-vant, 
36. 

71.  An  agreement  between  a  labor  asso- 
ciation and  an  employer's  association,  that 
all  employees  of  the  members  of  the  latter 
association  shall  be  members  of  the  former 
association,  and  that  no  employee  shall 
work  for  a  longer  period  than  four  weeks 
without  becoming  a  member,  is  illegal  and 
constitutes  no  defense  to  an  action  for  con- 
spiracy by  an  employee  who  is  discharged 
in  pursuance  of  such  agreement,  because  of 
his  refusal  to  become  a  member  of  the  labor 
association.  Curran  v.  Galen,  152  N.  \.  33, 
46  N.  E.  297,  37:802 

72.  A  man  has,  under  the  constitutional 
right  of  acquiring  property,  the  unrestricted 
right  to  work  for  such  employer  as  he 
chooses  for  such  wages  as  he  chooses  to  ac- 
cept, and  other  persons  cannot  interfere 
with  this  right  by  intimidating  either  him 
or  his  employers.  Erdman  v.  Mitchell,  207 
Pa.  79,  56  Atl.  327,  63:  534 
Strikes. 

-Injunction  against,  see  Injunction,  129-152. 

Joint  Action  by  Strikers  against  Black 
Listing,  see  Parties,  121. 

See  also  infra,  162-166. 

For  Editorial  Notes,  see  infra,  111.  §  1,  In- 
junction, rv.  §  3. 

73.  Employees  have  a  right,  both  as  in- 
dividuals and  in  combination,  to  refuse  to 
work  for  their  employers  unless  satisfactory 


546 


CONSPIRACY,   II.   a. 


wages  are  paid.     My  Maryland  Lodge  No. 
186  V.  Adt,  100  Md.  238,  59  Atl.  721, 

68:  752 

74.  An  agreement  of  employees  between 
themselves  to  quit  their  employer  is  not  un- 
lawful. Longshore  Printing  &  Pub.  Co.  v. 
Howell,  26  Or.  527,  38  Pac.  547,  28:  464 

75.  Communicating  to  their  employer  the 
reasons  for  the  design  of  employees  to  quit 
the  service  and  signifying  their  intention  is 
not  unlawful.  Id. 

76.  Labor  organizations  or  unions  are  not 
unlawful,  but  are  legitimate  and  proper  for 
the  advancement  of  their  members  and 
those  dependent  upon  them;  and  the  mem- 
bers thereof  may,  singly  or  in  a  body,  quit 
the  service  of  their  employer  for  the  pur- 
pose of  bettering  their  condition,  and  may 
by  peaceful  means  persuade  others  to  join 
them,  and,  as  a  means  to  that  end,  may  re- 
fuse to  allow  their  members  to  work  in 
places  where  nonunion  labor  is  employed. 
Gray  v.  Building  Trades  Council,  91  Minn. 
171,  97  N.  W.  663,  63:  753 

77.  A  strike  is  not  unlawful  it  it  is  mere- 
ly a  combination  among  employees  having 
for  its  object  their  orderly  withdrawal  in 
large  numbers  or  in  a  body  from  their  em- 
ployer's service,  to  accomplish  some  lawful 
purpose.  Arthur  v.  Oakes,  24  U.  S.  App. 
239,  11  C.  C.  A.  209,  60  Fed.  310,  25:  414 

78.  Employees  of  the  receiver  of  a  rail- 
road may  lawfully  confer  together  upon  the 
subject  of  a  proposed  reduction  of  wages, 
and,  if  not  restrained  by  their  contract,  may 
withdraw  in  a  body  from  the  receiver's  serv- 
ice because  of  such  reduction,  although  they 
expect  that  such  action  will  inconvenience 
the  receiver  and  the  public.  Id. 

79.  Ordering  a  strike  on  a  building  which 
has  reached  a  stage  of  construction  where 
work  cannot  be  stopped  without  disaster. 
in  accordance  with  an  intent  to  pursue  such 
course  in  respect  to  all  buildings  upon  which 
nonunion  men  are  employed  for  the  pur- 
pose of  forcing  all  men  into  unions,  is  un- 
lawful, although  under  existing  legislation 
the  responsible  persons  may  not  be  guilty 
of  criminal  conspiracy.  Erdman  v.  Mitchell, 
207  Pa.  79,  56  Atl.  327,  63:534 

80.  The  display  of  force  by  strikers, 
though  none  is  actually  used,  is  intimida- 
tion and  as  much  unlawful  as  violence  it- 
self. O'Neil  v.  Behanna,  182  Pa.  236,  37 
Atl.   843,  38:  382 

81.  A  combination  of  railroad  employees  to 
act  concertedly  in  quitting  their  employ- 
ment, in  a  way  to  injure  their  employer,  aid 
in  enforcing  a  boycott,  injure  the  public, 
and  oppress  other  employees,  is  criminal. 
Toledo.  A.  A.  &  N.  M.  R.  Co.  v.  Pennsyl- 
vania Co.  54  Fed.  746,  19:  395 

82.  While  an  employee  may  bestow  or 
withhold  his  labor  as  he  will,  if  he  uses  the 
benefit  which  his  labor  is  or  will  be  to  an- 
other by  threatening  to  withhold  or  agree- 
ing to  bestow  it,  or  by  actually  withhold- 
ing it  or  bestowing  it,  for  the  purpose  of 
inducing,  procuring,  or  comnelling  that  oth- 
er to  commit  an  unlawful  and  criminal  act, 
such  withholding  or  bestowing  his  labor  is 
itself  an   unlawful   and  criminal   act.      To- 


ledo, A.  A.  &  N.  M.  R.  Co.  V.  Pennsylvania 
Co.   54   Fed.   730,  'l9:  387 

83.  Strikers  who  induce  newly  employed 
men  to  break  their  contracts  by  meeting 
them  and  following  them  in  considerable 
numbers  as  the  new  men  enter  the  town, 
and  calling  them  "scabs"  and  '"Dlacklegs," 
sometimes  surrounding  them  and  endeavor- 
ing to  pull  them  away, — are  liable  to  the 
employer  for  any  damages  he  may  suffer  in 
consequence.  O'Neil  v.  Behanna,  182  Pa. 
236,  37  Atl.  843,  38:  382 

84.  All  who  participate  personally  in  the 
unlawful  conduct  of  strikers,  or  in  such 
combination  as  makes  them  liable  for  the 
acts  of  the  others  done  in  pursuance  of  the 
common  purpose,  are  liable  for  the  damages 
done  in  the  execution  of  such  purpose.  Id. 
Patrol. 

As  to  Picketing  Premises,  see  supra,  67. 

85.  A  conspiracy  of  strikers  to  prevent 
persons  from  entering  employment  or  con- 
tinuing therein,  even  if  they  are  not  under 
any  binding  contract,  by  maintaining  a  pa- 
trol in  front  of  the  employer's  premises  and 
by  means  of  threats  and  intimidation,  is  un- 
lawful. Vegelahn  v.  Guntner,  167  Mass.  92, 
44  N.  E.  1077,  35:  722 

86.  A  patrol  by  strikers  in  front  of  a  fac- 
tory, used  in  combination  with  social  pres- 
sure, threats  of  personal  injury,  or  unlawful 
harm  and  persuasion  to  break  existing  con- 
tracts, is  an  unlawful  interference  with  the 
rights  of  both  employer  and  employee,  since 
it  is  a  means  of  intimidation  indirectly  to 
the  employer  and  directly  to  persons  actual- 
ly employed  or  seeking  to  be  employed  by 
him.  Id. 

87.  The  motive  or  purpose  of  strikers  to 
secure  better  wages  for  themselves  by  com- 
pelling the  acceptance  of  their  schedule  of 
wages  does  not  justify  maintaining  a  pa- 
trol in  front  of  a  factory  as  a  means  of 
carrying  out  their  conspiracy.  Id. 


II.  In    Restraint    of    Trade,    Commerce,    or 
Competition ;   Monopolies. 

a.  In  General. 

As  to  Letting  Hearse  for  Funeral,  see  Asso- 
ciations, 2. 

An ti- Trust  Act  as  Denial  of  Equal  Protec- 
tion, see  Constitutional  Law,  361. 

Contracts  between  Two  Persons  in  Restraint 
of  Trade,  see  Contracts,  III.  e. 

Enforcing  Claim  to  Interest  in  Profits,  see 
Contracts,  620. 

Contract  by  Corporation  to  Buy  OflF  Com- 
petition, see  Corporations,  142-144. 

Power  of  Corporations  to  Purchase  Stock  of 
Other  Companies,  see  Corporations,  IV. 
b. 

Void  Provision  in  Corporate  Charter  for 
Creation  of  Monoply,  see  Corporations, 
18. 

Punishment  for  Entering  into,  see  corpora- 
tions, 687,  701-703. 

Forfeiture  of  Charter  for,  see  Corporations, 
687. 


CONSPIRACY.   II.   a. 


647 


Declaring    Forfeiture    in    Equity    Suit,    see 

Forfeiture,  3. 
Foreign  Corporation  Entering  into  Trust  in 

Violation   of  Local  Laws,  see  Corpora- 
tions, 852. 
Federal  Jurisdiction  of  Suit  to  Enjoin,  see 

Courts,  332. 
Exclusiveness    of   Federal   Jurisdiction,    see 

Courts,  436. 
Purchase    of    Other    Plant    as    Evidence    of 

Monopoly,  see  Evidence,  1950. 
Injunction    against,    see   Corporations,   489; 

Injunction,  131-152. 
Right  to  Jury  Trial,  see  Jury,  24. 
Who   may   Maintain   Action   for  Injury   by 

Conspiracy,  see  Parties,  4,  23,  105. 
Right   of   Owners   of   Patents    to   Combine, 

see  Patents,   1, 
Partial   Invalidity   of  Anti-Trust  Law,   see 

Statutes,  78. 
See  also  supra,  30.  ', 

For  Editorial  Xotes,  see  infra,  III.  §§  2,  3. 

88.  The  true  test  of  the  illegality  of  a 
combination  to  restrict  business  is  its  ef- 
fect upon  the  public  interests.  Nester  v. 
Continental  Brew.  Co.  161  Pa.  473,  29  Atl. 
104,  •  24:  247 

89.  The  Federal  anti-trust  act  should  have 
a  reasonable  construction, — one  which  tends 
to  advance  the  remedy  it  provides,  and  to 
abate  the  mischief  at  which  it  was  leveled. 
Whitwell  V.  Continental  Tobacco  Co.  60  C. 
C.  A.  290,  125  Fed.  454,  64:  689 

90.  Greed  of  profit  or  malice  toward 
others  is  an  essential  element  of  an  unlawful 
conspiracv  at  common  law  to  restrain  trade. 
Cote  V.  Murphy,  159  Pa.  420,  28  Atl.  190, 

23:  135 

91.  Efforts  to  prevent  competition  to  re- 
strict individual  effort  and  freedom  of  action 
in  trade  and  commerce  are  restrictions  hos- 
tile to  the  public  welfare,  not  consonant 
with  the  spirit  of  our  institutions  and  in 
violation  of  law.  People  ex  rel.  Mcllhany 
V.  Chicago  Live-stock  Exch.  170  111.  556,  48 
X.  E.  1062,  39:  373 

92.  If  the  object  of  a  contract  is  to  pre- 
vent or  impede  free  and  fair  competition  in 
trade,  and  it  may  in  fact  have  that  ten- 
dency, it  is  void  as  being  against  public 
policv.  Anderson  v.  Jett,  89  Ky.  375,  12 
S.  W.  670.  6:  390 

93.  A  contract,  tlie  sole  object  of  which  is 
to  restrain  competition,  and  enhance  or 
maintain  prices,  is  void  as  a  restraint  of 
trade.  United  States  v.  Addyston  Pipe  & 
S.  Co.  29  C.  C.  A.  141,  54  U.  S.  App.  723, 
85  Fed.  271,  46:  122 

94.  A  combination  of  manufacturers  to 
limit  competition  and  control  trade  and 
prices  in  a  large  number  of  states  is  not 
legal  because  the  restraint  is  only  partial 
and  limited  in  territory,  and  does  not  make 
a  complete  monopoly,  but  is  tempered  by 
fear  of  competition,  and  affects  only  a  part 
of  the  price.  Id. 

95.  No  conventional  restraint  of  trade  can 
be  enforced  unless  the  covenant  embodying 
it  is  merely  ancillary  to  the  main  purpose 
of  a  lawful  contract,  and  necessary  to  pro- 
tect the  covenantee  in  the  enjojment  of  the 


legitimate  fruits  of  the  contract,  or  to  pro- 
tect him  from  the  dangers  of  an  unjust  use 
of  those  fruits  by  the  other  party.  Id. 

96.  A  formal  written  agreement  is  not 
necessary  to  constitute  an  illegal  trust;  it  is 
sufficient  that  concerted  action  showing  an 
understanding  or  scheme  is  shown  by  the 
acts  of  the  parties.  Harding  v.  American 
Glucose  Co.  1S2  IlL  551,  55  N.  E.  577, 

64:  738 

97.  An  agreement  intended  to  aid  in  the 
formation  and  organization  of  an  illegal  cor- 
poration designed  to  secure  a  monopoly  of 
a  certain  business,  by  which  and  in  consider- 
ation of  indorsements  and  other  financial  aid 
to  a  shareholder  to  enable  him  to  raise  funds 
necessary  to  join  the  enterprise  the  indors- 
ers  are  to  have  a  share  of  the  net  earnings 
of  his  stock,  is  void  on  grounds  of  public 
policy.  Richardson  v.  Buhl,  77  Mich.  632, 
43   N.  W.    1102,  6:  457 

98.  Acts,  contracts,  and  combinations 
which  promote,  or  only  incidentally  or  in- 
directly restrict,  competition  in  commerce 
among  the  states,  while  their  main  purpose 
and  chief  effect  are  to  foster  the  trade  and 
increase  the  business  of  those  who  make  and 
operate  them,  are  not  in  restraint  of  inter- 
state commerce,  or  violative  of  the  anti- 
trust act  of  July  2,  1890,  (26  Stat,  at  L.  209, 
chap.  647,  U.  S.  Comp.  Stat.  1901,  p.  3200), 
§  1.  Whitwell  V.  Continental  Tobacco  Co. 
60  C.  C.  A.  290,  125  Fed.  454,  64:  689 

99.  Attempts  to  monopolize  a  part  of 
commerce  among  the  states,  which  promote, 
or  only  incidentally  or  indirectly  restrict, 
competition  in  interstate  commerce,  while 
their  main  purpose  and  chief  effect  are  to 
increase  the  trade  and  foster  the  business 
of  those  who  make  them,  were  not  intended 
to  be,  and  were  not,  made  illegal  or  punish- 
able by  the  anti-trust  act  of  July  2,  1890, 
(26  Stat,  at  L.  209,  chap.  647,  U.  S.  Comp. 
Stat.  1901,  p.  3200),  §  2,  because  such  at- 
tempts are  indispensable  to  the  existence 
of  any  competition  in  commerce  among  the 
states.  Id. 

100.  Every  attempt  to  monopolize  a  part 
of  interstate  commerce,  the  necessary  ef- 
fect of  which  is  to  stifle,  or  directly  and  sub- 
stantially to  restrict,  competition  in  com- 
merce among  the  states,  violates  the  anti- 
trust act  of  July  2,  1890,  (26  Stat,  at  L.  209, 
chap.  647,  U.  S.  Comp.  Stat.  1901,  p.  3200), 
§  2.  Id. 

101.  Every  contract,  combination,  or  con- 
spiracy, the  necessary  effect  of  which  is  to 
stifle,  or  directly  and  substantially  to  re- 
strict, competition  in  commerce  among  the 
states,  is  in  restraint  of  interstate  com- 
merce, and  violates  the  anti-trust  act  of 
Julv  2,  1890  (26  Stat,  at  L.  209,  chap.  647, 
U.  S.  Comp.  Stat.  1901,  p.  3200),  §  1.         Id. 

102.  "Control"  of  business  of  a  corporation 
which  the  anti-trust  legislation  forbids  the 
corporation  to  grant  to  others  than  the  cor- 
poration's officers  or  agents  means  pow- 
er to  dictate  the  corporate  action  of  the  cor- 
poration, not  the  mere  management  of  some 
soecial  limited  ''.Miartment  of  its  operations. 
Yazoo  &  M.  Y.  R.  Co.  v.  Searles,  85  Miss. 
r)20.  37  So.  939.  68:715 


648 


CONSPIRACY,   II.   b 


103.  A  trust  agreement  between  all  or  a 
majority  of  the  stockholders  of  several  cor- 
porations and  of  the  members  of  limited 
partnerships  engaged  in  the  same  business, 
by  which  they  are  to  transfer  their  stock 
to  the  trustees,  who  are  empowered,  as  ap- 
parent owners  thereof,  to  elect  the  directors 
and  control  the  affairs  of  the  several  com- 
panies in  the  interests  of  the  trust,  and  re- 
ceive all  dividends  made  by  such  companies, 
which  they  are  to  divide  as  a  common  fund 
among  such  stockholders  as  dividends  on 
trust  certificates  which  the  latter  receive 
in  lieu  oi  their  stock  at  tne  same  par  value, 
is  void  as  against  public  policy  and  tend- 
ing to  the  creation  of  a  monopoly.  State  ex 
re'l.  Watson  v.  Standard  Oil  Co.  49  Ohio  St. 
137,  30  N.  E.  279,  15:  145 

104.  The  facts  that  a  corporation  as  one 
of  the  contracting  parties  may  constitute 
an  unjust  monopoly,  and  that  it«  general 
business  is  illegal,  cannot  serve  ipso  facto 
to  create  default  or  liability  on  its  contracts 
generally;  nor  can  such  fact  be  invoked  col- 
laterally to  affect  in  any  manner  its  inde- 
pendent contract  obligations  or  rights.  Den- 
nchv  V.  McXulta.  30  C.  C.  A.  422,  59  U.  S. 
App.  264,  86  Fed.   825,  41 :  609 

105.  That  a  person  who  has  given  work, 
labor,  and  services  to  another  upon  the  lat- 
ter's  employment,  has  been,  during  the  time 
of  the  rendition  of  such  services,  engaged 
with  other  persons  in  like  employment  in  a 
combination  to  charge  for  such  services  as 
any  of  them  may  render  according  to  a  scale 
agreed  upon  by  them,  will  not  prevent  re- 
covery of  the  reasonable  value  of  the  serv- 
ices rendered.  Scott  v.  Wiswell,  30  C.  C.  A. 
339.  57  U.  S.  App.  179,  86  Fed.  671,    42:  85 

lOG.  A  secret  combination  to  prevent  com- 
petition and  deceive  the  public  by  a  pre- 
tended competition  in  bidding  for  contracts 
is  a  conspiracy  in  restraint  of  trade,  with- 
in the  meaning  of  the  act  of  Consrress  of 
1890.  United  States  v.  Addvston  "Pipe  & 
S.  Co.  29  C.  C.  A.  141,  54  u!  S.  App.  723, 
85   Fed.   271,  46:  122 

107.  Contracts  unenforceable  at  common 
law  because  in  restraint  of  trade  are,  if 
the  trade  restrained  is  interstate,  made  un- 
lawful in  an  affirmative  or  positive  sense 
by  the  act  of  Congress  of  July  2,  1890,  so 
as  to  be  punishable  as  a  misdemeanor  and 
create  a  right  of  civil  action  for  damages 
in  favor  of  those  injured  thereby,  and  a  civil 
remedy  by  injunction  in  favor  of  private 
persons  and  the  public.  Id. 

108.  Proceedings  under  N.  Y.  Laws  1899, 
chap.  GOO,  relating  to  the  suppression  of 
monopolies,  are  not  limited  to  combinations 
in  process  of  formation,  but  roach  those  al- 
ready formed  which  are  still  maintained 
and  in  process  of  consummation.  Re  Davies. 
168  X.  Y.  89,  61  N.  E.  118,  56:  8.55 

109.  A  former  member  of  an  illegal  com- 
bination, whose  connection  with  it  was  sev- 
ered before  the  filing  of  the  suit,  will  not 
be  denied  the  protection  of  a  court  of  equity 
against  an  illegal  act  of  such  combination 
because  of  his  previous  connection  there- 
with. Employing  Printers'  Club.  v.  Dr.  Blos- 
ser  Co.  122  Ga.  509,  50  S.  E.  353,         09:  90 


As  to  hour  of  closing  places  of  business. 

110.  The  slight  restraint  of  trade  result- 
ing from  a  contract  between  merchants  to 
close  their  places  of  business  at  a  certain 
hour  each  day  is  not  illegal.  Stovall  v. 
McCutchen,  107  Ky.  577,  54  S.  W.  969, 

47:287 

b.  Of  Manufacturers  of,  or  Dealers  in.  Dif- 
ferent Products. 

See  also  supra,  51. 

111.  When  persons  knowingly  promote 
and  participate  in  an  unlawful  scheme  to 
advance  the  price  of  a  commodity,  they  are 
all  principals,  although  one  of  them  acts  in 
some  respects  in  subordination  to  the  others, 
and  is  to  profit  less  than  the  others,  or  not 
at  all.  Leonard  v,  Poole,  144  N.  Y.  371,  21 
N.  E.  707,  4:  728 

112.  A  combination  to  prevent  competition 
and  create  fictitious  prices  independent  of 
the  law  of  demand  and  supply,  and  to  such 
an  extent  as  injuriously  to  affect  the  inter- 
ests of  the  public  or  any  particular  class  of 
citizens  who  may  be  especially  interested, 
either  as  producers  or  consumers  in  the  ar- 
ticles or  staples  affected  by  the  contracts,  is 
void  as  in  restraint  of  trade.  Texas  Stand- 
ard Cotton  Oil  Co.  V.  Adoue,  83  Tex.  650,  19 
S.  W.  274,  15 :  598 

113.  The  possibility  that  other  business 
enterprises  in  the  same  pursuit  may  be  set 
on  foot  to  counteract  the  effect  of  a  combi- 
nation to  control  the  market  in  a  commod- 
ity will  not  relieve  such  combination  of  il- 
legality. Re  Sugar  Trust  Case,  54  Hun,  354, 
7  N.  Y.  Supp.  406,  5:  386 

114.  The  language  of  a  written  agreement 
between  colorations  is  not  alone  to  be  con- 
sulted in  determining  whether  the  agree- 
ment is  or  is  not  an  illegal  attempt  to  pre- 
vent coon  petition  and  control  the  market; 
but  it  is  to  be  considered  in  view  of  the  cir- 
cumstances and  of  the  conduct  and  probable 
motives  of  the  individuals  engaged  in  bring- 
ing it  about.  Id. 

115.  A  combination  to  fix  prices  in  re- 
traint  of  trade  may  be  shown  by  acts  on  the 
part  of  several  competing  dealers  in  the 
same  line  of  trade,  such  as  selling  at  a  fixed 
price  from  which  rebates  are  given  in  goods 
or  weights,  giving  notice  of  coming  advances 
in  price,  which  always  follow  as  announced,- 
securing  concessions  from  competitors  of  the 
right  to  sell  shop-worn  goods,  gathering  evi- 
dence of  sales  under  price,  and  abandoning 
such  conduct  as  soon  as  legal  proceedings 
are  instituted  to  punish  them.  State  ex 
rel.  Crow  v.  Armour  Packing  Co.  173  Mo. 
356,  73  S.  W.   645,  61 :  464 

116.  A  contract  to  create  a  monopoly  in 
any  commodity  of  comTnon  utility  or  of  com- 
mon consumption  or  use  among  the  people, 
nr  even  of  considerable  utility  or  consump- 
tion, is  against  public  policy,  whether  such 
commodity  be  one  of  the  common  necessa- 
ries of  life  or  not.  Tuscaloosa  Ice  Mfg.  Co. 
V.  Williams,  127  Ala.  110.  28  So.  669, 

50:  175 

117.  An  illegal  trust  is  created  by  the  con- 


CONSPIRACY,   II.  b. 


549 


veyance,  by  the  stockholders  of  several  com- 
peting companies  engaged  in  the  manufac- 
turing baainess,  to  one  company  organized 
for  the  purpose  of  taking  their  property 
end  consolidating  their  interests.  Harding 
V.  American  Glucose  Co.  182  111.  551,  55  N.  E. 
677,  64:  738 

118.  The  words  "restrictions  in  trade,"  in 
an  anti-trust  law  making  such  restrictions 
a  felony  punishable  with  heavy  penalties, 
by  fine  or  imprisonment,  cannot  be  con- 
strued to  include  all  contracts  which  in  any 
sense  restrict  trade,  but  are  limited  to  com- 
binations such  as  those  between  producers 
or  dealers  to  limit  production  or  supply  of 
an  article  and  thus  acquire  a  monopoly  of 
it,  and  then  unreasonably  to  enhance  prices, 
or  those  of  quasi  public  corporations  which 
might  be  disabled  by  the  corabindtion  from 
performing  duty  to  the  public.  Queen  Ins. 
Co.  V.  State,  86  Tex.  250,  24  S.  W.  397, 

22:483 

119.  Members  of  a  combination  to  en- 
hance the  price  of  a  commodity,  which  is 
void  under  the  antitrust  act,  who  share  in 
the  profits  secured  by  the  combination,  can- 
not claim  exemption  from  suit  on  the  part 
of  a  consumer  under  the  provisions  of  the 
statute,  on  the  ground  that  no  direct  pur- 
chase was  made  from  them,  nor  complain 
that  all  the  members  of  the  combination 
were  not  made  parties  to  the  action.  At- 
lanta V.  Chattanooga  Foundry  &  Pipeworks, 
01  C.  C.  A.  387,  127  Fed.  23,  64:  721 

120.  A  combination  prohibited  by  the  act 
of  Congress  of  July  2,  1890,  is  constituted 
by  an  association  to  unite  all  "acceptable 
dealers"  engaged  in  a  certain  business  in  a 
certain  city  and  within  200  miles  therefrom 
and  all  American  manufacturers  of  their 
supplies,  the  rules  of  which  exclude  unac- 
ceptable persons  from  membership,  and  pro- 
hibit their  purchasing  supplies  at  less  than 
list  prices,  which  are  more  than  double  what 
members  of  the  association  pay.  W.  W. 
Montague  &  Co.  v.  Lowry,  52  C"  C.  A.  621, 
115  Fed.  27,  63:  58 

121.  The  making  of  anti-competitive  trade 
agreements  as  to  products  and  merchandise 
bought  or  sold  on  the  general  market  is 
contrary  to  public  policy,  and  it  is  compe- 
tent for  the  legislature  to  enact  penal  meas- 
ures to  prevent  the  making  and  carrying  out 
of  such  agreements.  State  v.  Smiley,  65 
Kan.  240,  69  Pac.  199,  67:  903 

122.  The  absence  of  intention  to  restrain 
interstate  commerce  will  not  save  from  con- 
demnation a  scheme  of  manufacturers  to 
control  the  whole  commerce  in  their  com- 
modity within  a  large  number  of  states. 
United  States  v.  Addvston  Pipe  &  S.  Co. 
29  C.  C.  A.  141,  54  U.' S.  App.  723,  85  Fed. 
271,  _  46:  122 

123.  A  combination  of  manufacturers  in 
different  states,  to  regulate  sales  and  prices 
of  their  commodities  in  a  large  number  of 
states  in  which  it  was  their  invariable  cus- 
tom to  bid  for  the  contracts  and  deliver  the 
goods  at  the  home  of  the  buyer,  is  a  com- 
bination in  restraint  of  interstate  trade, 
within  the  condemnation  of  the  antitrust 
act  of  Congress  of  1890.  Id. 


124.  A  combination  of  the  manufacturers 
of  a  product  of  a  state,  the  market  for  four 
fifths  of  which  is  found  in  other  states,  to 
limit  production  and  raise  the  price,  is  a 
violation  of  the  antitrust  act  of  Julv  2, 
1890.  Gibbs  v.  McNeeley,  55  C.  C.  A.  70,' 118 
Fed.    120,  60:  152 

125.  Contemporaneous  but  distinct  pur- 
chases of  manufacturing  businesses  and 
their  good  will,  protected  by  covenants 
against  competition,  are  not  invalidated  be- 
cause they  co-operate  to  put  five  of  the 
principal  plants  for  producing  a  certain  com- 
modity into  the  hands  of  one  person,  and 
together  create  a  restraint  or  limit  upon 
competition,  which  is  contrary  to  public 
policy.  Trenton  Potteries  Co.  v.  Oliphant, 
(N.  J.  Err,  &  App.)  58  N,  J.  Eq.  507,  43 
Atl.   723,  46:  255 

126.  A  purchase  of  a  manufacturing  busi- 
ness and  its  good  will,  which  is  protected  by 
the  seller's  covenant  not  to  engage  in  a  com- 
petitive business,  is  not  rendered  unlawful 
by  the  fact  that  it,  in  connection  with 
other  contemporaneous  purchases,  enables 
the  purchaser  to  control  an  association  rep- 
resenting nearly  all  the  manufacturers  of 
a  certain  commodity,  and  thus  control 
prices,  as  the  public  interest  will  be  pro- 
tected by  invalidating  the  agreement  for 
the  control  of  prices,  if  that  is  unlawful. 

Id. 

127.  A  corporation  and  its  members  in 
their  control  over  it  may  constitute  a  trust 
or  combination  to  fix  the  price  of  merchan- 
dise or  limit  the  amount  sold,  within  the 
meaning  of  a  statute  prohibiting  such  trust 
or  combination  and  relieving  third  persons 
from  liability  to  pay  for  goods  purchased 
from  such  combination.  Ford  v.  Chicago 
Milk  Shippers'  Asso.  155  111.  166,  39  N.  E. 
651,  27:  298 

128.  An  agreement  with  a  manufacturer 
not  to  resell  the  goods  furnished  by  him  at 
less  than  a  specified  price  is  not  within  Ky. 
Stat.  §  3915,  for  the  suppression  of  con- 
spiracies and  trusts.  Commonwealth  v. 
Grinstead,  111  Ky.  203,  63  S.  W.  427, 

56:  709 

129.  Proceedings  against  jobbers  for  the 
punishment  of  a  combination  in  restraint 
of  trade  cannot  be  defeated  by  showing  em- 
ployment of  many  persons,  payment  of  large 
amounts  in  wages,  improvement  in  the  busi- 
ness of  furnishing  the  raw  material,  regula- 
tion of  prices  by  the  cost  of  raw  material, 
and  that  the  retailers  had  a  combination 
among  themselves  which  was  more  effective 
in  fixing  the  prices  to  consumers  than  that 
of  the  iobl)ers  because  the  combination 
among  the  latter  could  not  be  made  effec- 
tive. State  ex  rel.  Crow  v.  Armour  Packing 
Co.  173  Mo.  356,  73  S.  W.  645,  61:  464 

130.  A  produce  exchange  the  constitution 
and  by-laws  of  which  regulate  the  credit  to 
be  allowed  its  members,  discriminate  in  the 
price  to  be  paid  for  produce  against  persons 
not  members,  control  the  delivery  of  goods, 
and  pro\nde  a  penalty  by  fine  and  suspen- 
sion for  offending  and  defaulting  members, 
is  a  combination  in  restraint  of  trade  in  vio- 
lation of  Minn.  Gen.  Laws  1899,  chap,  359, 


550 


CONSPIRACY,   II.    b. 


prohibiting  trusts  and  combinations,  since 
it  tends  to  limit  and  control  the  market 
price  of  produce,  and  limits  and  interferes 
with  the  free  and  open  purchase  and  sale 
of  commodities,  Ertz  v.  Produce  Ex- 
change, 82  Minn.  173,  84  N,  W.  743, 

51 :  825 
Food  products. 

131.  A  combination  between  a  corporation 
and  its  members  to  control  the  price  of  food 
products  may  be  made  illegal  by  subsequent 
legislation.  Ford  v.  Chicago  Milk  Shippers' 
Asso.  155  m.  166,  39  N.  E.  651,  27:298 

132.  The  centralization  of  corporate  fran- 
chises in  a  single  irresponsible  power  fur- 
nished with  every  delegated  facility  for  reg- 
ulating and  controlling  at  will,  throughout 
the  country,  the  production  and  price  of  a 
particular  and  necessary  article  of  com- 
merce,— viz.,  refined  sugar, — creates  a  mo- 
nopoly in  a  legal  sense,  is  detrimental  to  the 
public,  and  is  consequently  unlawful.  People 
V.  North  River  Sugar  Refin.  Co.  54  Hun, 
355  (note)  3  X.  Y.  Supp.  401,  2:  33,  Aff'd 
in  54  Hun.  354,  7  N.  Y.  Supp.  406,  5:  386, 
Aflf'd  in  121  N.  Y.  582,  24  N.  E.  834,        9:  33 

133.  Control  of  the  business  of  refining 
and  selling  sugar  in  the  United  States  does 
not  involve  a  monopoly  or  restraint  of  for- 
eign or  interstate  commerce,  under  the  act 
of  Congress  of  July  2,  1890,  as  this  act  does 
not  include  the  regulation  of  manufactures 
or  productive  Industries  of  any  sort,  even  if 
their  product  is  a  subject  of  commerce. 
United  States  v.  E.  C.  Knight  Co.  17  U.  S. 
App.  466,  9  C.  C.  A.  297,  60  Fed.  Rep.  934, 

24:  428 
[Aflf'd  by  the  Supreme  Court  of  the  Unit- 
ed States  in  156  U.  S.  1,  39  L.  ed.  325,  15 
Sup.  Ct.  249.] 

134.  An  incorporated  milk  exchange  which 
constitutes  a  combination  of  milk  dealers 
and  creamery  men  to  fix  and  control  the 
price  of  milk  to  be  paid  by  them,  thus  put- 
ting them  in  position  to  control  the  market, 
is  illegal  and  may  be  dissolved  at  the  suit 
of  the  attorney  general.  People  v.  Milk  Ex- 
change, 145  N.  Y.  267,  39  N.  E.  1062,    27:  437 

135.  Where  an  unlawful  plot  to  advance 
the  price  of  lard  is  made,  one  of  the  parties 
thereto  cannot  be  aided  by  the  court  to  an 
accoimting  against  another  party  to  the  con- 
tract, even  if  the  latter  is  onlj^  an  agent  of 
the  former,  where  there  has  been  no  ac- 
counting or  admission  of  indebtedness  or 
promise  to  pay  since  the  completion  of  the 
illegal  scheme.  Leonard  v.  Poole,  114  N.  Y. 
371.  21  N.  E.  707,  4:  728 

136.  The  agreement  is  void  as  tending  to 
create  a  monopoly,  where  all  the  grocers  in 
a  town  agree  to  give  up  dealing  in  butter 
if  a  now  firm  shall  establish  a  butter  store 
in  the  place  and  pay  as  much  as  dealers  in 
neighboring  towns.  Chaplin  v.  Brown,  83 
Iowa,  156,  48  N".  W.  1074,  12:  428 
Coal. 

Multifariousness  of  Action  by  Retail  Dealer, 
see  Action  or  Suit  104. 

137.  An  organization  of  coal  dealers,  in- 
tended to  prevent  competition  in  prices,  in 
pursuance  of  which  the  price  of  coal  is 
raised,  is  a  conspiracy  condemned  by  N.  Y. 


Pen.  Code,  §  168,  making  it  a  misdemeanor 
to  conspire  to  commit  any  act  injurious  to 
trade  or  commerce.  People  v.  Sheldon,  139 
N.  Y.  251,  34  N.  E.  785,  23:  221 

138.  A  combination  between  coal  produc- 
ers in  one  state  and  coal  dealers  in  another 
to  regulate  prices  of  coal  in  a  certain  city, 
and  to  divide  any  advances  in  price  in  ex- 
cess of  the  advances  in  freights,  and  tend- 
ing to  monopolize  the  coal  trade  of  the  city 
among  members  of  the  combination,  is  in 
violation  of  act  of  Congress  July  2,  1890, 
prohibiting  conspiracies  in  restraint  of  trade 
and  commerce.  United  States  v.  Jellico 
Mountain  Coke  &  C.  Co.  46  Fed.  432, 

12:  753 

139.  The  overt  act  necessary  to  make  a 
conspiracy  unla'wful,  under  N.  Y.  Penal 
Code,  §  171,  is  committed  in  the  case  of  a 
conspiracy  to  prevent  competition  in  prices 
for  coal,  by  raising  the  price  of  coal.  Peo- 
ple V.  Sheldon,  139  N.  Y.  251,  34  N.  E.  785, 

23:221 

140.  Where  three  coal-mining  companies 
operating  in  the  same  vein  or  seam  in  close 
proximity  to  one  another,  and  just  having 
commenced  the  development  of  that  partic- 
ular kind  of  coal,  organize  indirectly  and 
nominally  in  the  names  of  individuals  an- 
other corporation  to  act  as  their  general 
sales  agent;  and  each  gives  it,  by  contract, 
the  exclusive  right  to  sell  its  entire  output 
of  coal  at  prices  uniforrti  as  to  all  three  com- 
panies, and  not  to  be  departed  from  without 
the  consent  of  all  the  companies;  and  the 
agent  company  is  to  advertise  and  intro- 
duce the  coal  in  the  markets,  establish  and 
control  all  agencies  and  subagencies,  and 
make  all  sales  and  collections,  and  deduct 
for  its  compensation  10  cents  per  ton  out  of 
the  proceeds  of  sales, — the  contract  is  illegal 
and  void  as  tending  to  suppress  competition 
and  restrain  trade,  contrary  to  public  pol- 
icy. Slaughter  v.  Thacker  Coal  &  Coke  Co. 
55  W.  Va.  642,  47  S.  E.  247,  65:  342 

141.  A  retail  coal  dealer  injured  by  a  com- 
bination between  wholesalers  and  favored  re- 
tailers to  monopolize  the  business,  enhance 
prices,  and  drive  other  retailers  out  of  the 
business,  may  maintain  an  action  against 
the  conspirators  for  the  damages  caused 
thereby.  Hawarden  v.  Youghiogheny  &  L. 
Coal  Co.  Ill  Wis.  545,  87  N.  W.  472,  55:  828 
Proprietary  medicines. 

142.  A  plan  by  a  voluntary  association  of 
merchants  engaged  in  selling  proprietary 
medicines,  adopted  by  manufacturers  of 
them,  looking  to  the  maintenance  of  prices, 
by  which  the  manufacturers  should  sell  at 
fixed  prices,  with  a  rebate  only  to  concerns 
who  could  be  relied  on  to  maintain  the  sell- 
ing price,  is  not  void  as  creating  a  monop- 
oly or  in  restraint  of  trade,  nor  as  against 
public  policy.  John  D.  Park  &  Sons  Co.  v. 
National  Wholesale  Druggists'  Asso.  175  N. 
Y.  1,  67  N.  E.  136,  62:  632 
Beer. 

143.  A  combination  of  brewers  to  silence 
and  stifle  competition  among  them  within 
the  city  and  county  of  Philadelphia  and  the 
county  of  Camden,  New  Jersey,  fixing  a 
minimum  price  at  which  any  of  them  shall 


CONSPIRACY,   II,   c. 


551 


sell  beer  to  the  customer  of  another  or  to 
new  trade, — is  void  as  against  public  pol- 
icy. Nester  v.  Continental  Brew.  Co.  161 
Pa.  473,  29  Atl.  104,  24:  247 

144.  A  contract  not  to  sell  or  be  inter- 
ested in  the  sale  of  any  beer  except  that  of 
one  company,  which  in  turn  agrees  not  to 
sell  or  consign  beer  to  any  other  party  in 
the  vicinity,  is  a  combination  of  the  capital 
and  acts  of  the  parties  which  constitutes  a 
trust  in  violation  of  tne  Texas  statute.  Fu- 
qua  V.  Pabst  Brewing  Co.  90  Tex.  298,  38  S. 
W.  29,  750,  35:  241 
Other  products. 

145.  An  agi-eement  to  sell  no  harrow  for 
less  than  the  schedule  price  is  invalid  when 
made  by  the  owner  of  the  patent  with  a 
corporation  organized  by  rival  manufactur- 
ers of  harrows  to  take  title  to  tlje  patents 
and  license  the  former  owners  to  operate 
under  them  and  sell  only  at  schedule  prices 
to  be  fixed  by  the  corporation.  National 
Harrow  Co.  v.  Hench,  27  C.  C.  A.  349,  55  U. 
S.  App.  53,  83  Fed.  36,  39:  299 

146.  The  exposure  of  holders  of  patents 
covering  similar  articles  to  litigation  will 
not  justify  them  in  making  a  combination  in 
restraint  of  competition.  Id. 

147.  A  contract  not  to  compete  in  the 
manufacture  of  machinery  under  patterns, 
the  right  to  use  which  is  sold  to  the  other 
contracting  party,  is  not  invalidated  by  the 
act  of  Congress  of  July  2,  1890,  prohibiting 
restraint  of  trade  and  commerce  among  the 
several  states  and  with  foreign  nations.  Ban- 
croft v.  Union  Embossing  Co.  72  N.  H.  402, 
57  Atl.  97,  64:  298 

148.  A  useful  commodity  of  a  nature  to 
be  needful  for  many  purposes,  such  as  blue- 
stone,  though  it  may  not  be  an  article  of 
prime  necessity,  is  within  the  rule  that 
makes  contracts  to  prevent  competition  un- 
lawful. Cummings  v.  Union  Blue  Stone  Co. 
164  N.  Y.  401,  58  N.  E.  525,  52:  262 

149.  A  contract  between  persons  control- 
ling 00  per  cent  of  the  sales  of  bluestone 
at  the  New  York  market,  whereby  they 
agree  to  sell  only  through  a  common  sales 
agent,  and  to  maintain  the  agreed  prices,  is 
an  unlawful  combination  to  control  the  mar- 
ket. Id. 

150.  The  organization  of  a  corporation  for 
the  purpose  of  controlling  the  manufacture 
and  trade  in  matches  in  the  United  States 
and  Canada,  by  getting  all  manufacturers 
of  matches  to  enter  into  a  combination  giv- 
ing such  corporation  the  whole  control  of 
the  business,  or  by  buying  out  those  who 
would  not  enter,  and  buying  off  any  others 
who  might  propose  to  engage  in  the  business, 
is  an  unlawful  enterprise,  being  an  attempt 
to  create  a  monopoly.  Richardson  v.  Buhl, 
77  Mich.  632,  43  N.  "W.  1102,  6:  457 

151.  An  agreement  between  publishers  of 
and  dealers  in  books,  whereby  they  agree 
not  to  sell  books  of  any  kind  to  dealcra 
who  shall  be  suspected  of  selling  copyrighted 
books  at  less  than  the  net  price  fixed  by 
the  Dublishers,  or  who  shall  supply  books  to 
dealers  who  are  suspected  of  making  such 
sales,  violates  a  statutory  provision  that 
-every  contract  whereby  a  monopoly  in  the 


sale  of  any  commodity  of  common  use  is  or 
may  be  created,  or  whereby  competition  in 
the  supply  or  price  of  any  such  article  is 
restrained  or  prevented,  or  whereby,  for 
the  purpose  of  establishing  or  maintaining 
a  monopoly,  the  free  prosecution  of  any  law- 
ful business  is  or  may  be  restricted, — is 
against  public  policy  and  void.  Strau-j  v. 
American  Publishers'  Asso.  177  N.  Y.  473, 
09  N.   E.  1107,  64:  701 

152.  A  combination  between  cotton-oil 
mills  by  which  the  prices  to  be  paid  for 
cotton  seed  and  seed  cotton  are  arbitrarily 
fixed,  subject  to  change  only  by  agreement 
of  certain  parties,  and  fixing  the  minimum 
price  for  meal  cake  and  lint,  which  one  par- 
ty is  given  the  first  right  to  purchase,  while 
it  is  also  given  the  exclusive  rignt  to  pur- 
chase seed  at  the  most  important  stations 
in  the  state,  with  the  right  to  purchase  two 
thirds  of  that  shipped  from  the  stations 
where  three  of  the  four  mills  are  sit- 
uated, and,  in  addition,  agrees  to  take  the 
entire  make  or  yield  of  those  mills  at  prices 
which  shall  yield  a  specified  profit  to 
them, — is  an  unreasonable  restriction  upon 
trade  for  the  purpose  of  preventing  compe- 
tition, and  is  consequently  void  as  against 
public  policy.  Texas  Standard  Cotton  Oil 
Co.  V.  Adoue,  83  Tex.  650,  19  S.  W.  274, 

15:  598 

153.  An  agreement  entered  into  by  all  the 
dealers  on  a  certain  market,  limiting  their 
right,  severally,  under  stipulated  forfeit- 
ures or  penalties  to  buy  all  the  grain  they 
otherwise  might  on  such  market,  is  an 
agreement  in  restraint  of  trade,  and  falls 
within  the  penal  terms  of  the  Kansas  anti- 
trust act  of  1897.  State  v.  Smiley,  65  Kan. 
240,  69  Pac.  199,  67 :  903 

c.  To  Control  Prices  for  Services  Generally. 

To  Enhance  Price  by  Fictitious  Bid  at  Auc- 
tion, see  Auction,  4. 

Recovery  Back  of  Money  Paid  by  One  Deal- 
ing with  Monopolistic  Combination,  see 
Assumpsit,  33. 

Forfeiture  of  Franchise  in  Case  of,  see  Cor- 
porations, 701,  702. 

Dissolution  of  Corporation  for,  see  Corpora- 
tions, 747. 

Evidence  of  Declarations  to  Show  Combina- 
tion, see  Evidence,  1625. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

Of  stenographers. 

154.  An  association  of  stenographers,  of 
which  one,  if  not  its  leading,  object,  is  to 
control  the  prices  to  be  charged  by  its  mem- 
bers for  stenographic  work  by  restraining  all 
competition  between  them,  is  an  illegal  com- 
bination, the  rules  of  which  will  not  be  en- 
forced to  give  one  member  a  right  of  action 
against  another  for  under-bidding,  although 
only  a  small  portion  of  the  stenographers  of 
the  city  belong  to  it.  More  v.  Bennett,  140 
111.  69,  29  N.  E.  888,  15:  361 
Of  masons  and  builders. 

155.  The  by-laws  or  rules  of  a  masons  and 
builders'  association  which  require  all  mem- 
bers who  wish  to  compete  for  any  contract 


652 


CONSPIRACY,   II.   c. 


or  job  to  bring  their  bids  in  advance  to  the 
rooms  of  the  association  for  examination  by 
a  committee,  and  that  6  per  cent  at  least 
shall  be  added  to  the  amount  of  the  lowest 
bid  before  it  can  be  submitted  in  the  com- 
petition, with  the  result  that  owners  are 
compelled  to  pay  for  the  erection  of  build- 
ings by  members  of  the  association  6  per 
cent  in  excess  of  what  they  would  otherwise 
be  obliged  to  pay  if  the  bidding  was  unin- 
fluenced by  such  combination, — are  contrary 
to  public  policy  and  void.  Milwaukee 
Masons  &  B.  Asso.  v.  Niezerowski,  95  Wis. 
129,  70  >J.  W.  166,  37:  127 

Of  plumbers. 

156.  The  restraint  of  trade  and  enhance- 
ment of  prices  by  a  by-law  of  a  plumbers' 
association  may  render  it  invalid,  though 
the  association  does  not  include  all  the 
plumbers  in  the  city  in  which  the  associa- 
tion is  formed.  Bailey  v.  Master  Plumbers' 
Asso.  103  Tenn.  99,  52  S.  W.  853,  46:  561 
Of  press  associations. 

157.  The  furnishing  of  news  by  a  press 
association  to  newspapers  is  not  within  the 
scope  of  Mo.  Rev.  Stat.  1899,  §  8965,  pro- 
hibiting trusts  or  combinations  to  regulate 
or  fix  the  price  of  manufactures,  commodi- 
ties, "or  any  article  or  thing  whatsoever." 
State  ex  rel.  Star  Pub.  Co.  v.  Associated 
Press,  159  Mo.  410,  60  S.  W.  91,  51:  151 
Of  stevedores. 

158.  The  law  against  contracts  in  unlaw- 
ful restraint  of  trade  is  not  violated  by  an 
agreement  for  an  association  of  master 
stevedores  of  a  city,  establishing  a  schedule 
of  minimum  prices  or  charges  and  forbid- 
ding any  discount  therefrom  except  as  may 
be  authorized  by  the  association  in  the  ab- 
sence of  anything  to  show  that  the  associa- 
tion has  substantially  the  control  of  the 
business  in  the  city,  or  that  the  schedule 
of  prices  fixed  is  unreasonable,  or  the  re- 
striction such  as  to  preclude  a  fair  competi- 
tion with  others  engaged  in  the  business. 
Herriman  v.  Menzies,  115  Cal.  16,  46  Pac. 
7.30,  35:318 
Of  tug  owners. 

159.  That  the  owners  of  tugs  have  entered 
into  an  illegal  combination  to  monopolize 
and  restrain  trade  will  not  invalidate  con- 
tracts made  with  such  tugs  severally  for 
towage.  Scott  v.  Wis  wall,  30  C.  0.  A.  339, 
57  U.  S.  App.  179,  86  Fed.  671,  42:85 
Of  labor  organizations. 

160.  An  unlawful  combination  in  restraint 
of  interstate  or  foreign  commerce  may  ex- 
ist among  labor  organizations,  although 
their  original  purpose  and  general  character 
are  lawful.  United  States  v.  Workingmen's 
Amalgamated  Council,  54  Fed.  994,    26:  1.H8 

161.  The  interdiction  by  act  of  Congress, 
of  contracts  or  combinations  in  restraint  of 
trade  or  commerce  among  the  several  states 
or  with  foreign  nations,  applies  to  combina- 
tions of  labor  as  well  as  of  capital,  which 
are  in  restraint  of  such- trade  or  commerce. 

Id. 

162.  The  stopping  of  transportation  of 
goods  and  merchandise  in  transit  from  state 
vo  state  and  to  and  from  foreign  countries, 


which  is  caused  by  a  strike  of  all  the  mem- 
bers of  labor  organizations  in  a  certain  day, 
in  all  kinds  of  business,  in  an  attempt  to 
compel  the  employment  of  none  but  union 
men  in  a  certain  business, — is  an  unlawful 
restraint  of  commerce  in  violation  of  the  act 
of  Congress.  Id. 

163.  Members  of  a  labor  organization  who 
procure  railroad  companies  to  refuse  to  han- 
dle interstate  freight  from  a  company  with 
which  such  organization  is  in  conflict  violate 
the  provisions  of  the  Interstate  Commerce 
Law  declaring  any  carrier  or  any  director, 
officer,  receiver,  agent,  or  person  acting  for 
or  employed  by  an  incorporated  carrier,  who, 
alone  or  with  any  other  corporation,  person, 
or  party,  shall  wilfully  fail  or  omit  to  do 
any  act,  or  cause,  or  willingly  suffer  or  per- 
mit, any  act,  required  by  such  act  to  be 
done  or  not  to  be  done,  or  aid  or  abet  such 
omission  or  failure,  to  be  guilty  of  a  misde- 
meanor. Toledo,  A.  A.  &  N.  M.  R.  Co.  v. 
Pennsylvania  Co.  54  Fed.  730,  19:  387 

164.  Members  of  a  labor  organization,  em- 
ployees of  a  railroad  company,  and  the  of- 
ficers of  such  organization  though  not  such 
employees,  who,  by  threatening  to  withhold 
their  labor  from  soich  company  unless  it 
violates  the  Interstate  Commerce  Act  by  re- 
fusing to  accept  cars  containing  interstate 
freights  from  another  road  with  which  such 
organization  is  in  conflict,  cause  it  to  refuse 
to  accept  such  freights, — are  civilly  liable 
to  the  latter  road  for  any  loss  inflicted  in 
pursuance  of  their  conspiracy.  Id. 

165.  Rule  12  of  an  association  of  locomo- 
tive engineers  styled  "The  Brotherhood  of 
Locomotive  Engineers,"  which  provides: 
"That  hereafter  when  an  issue  has  been  sus- 
tained by  the  grand  chief,  and  carried  into 
effect  by  the  Brotherhood  of  Locomotive 
Engineers,  it  shall  be  recognized  as  a  viola- 
tion of  obligations  if  a  member  of  the 
Brotherhood  of  Locomotive  Engineers,  who 
may  be  employed  on  a  railroad  run  in  con- 
nection with  or  adjacent  to  said  road,  handle 
the  property  belonging  to  said  railroad  or 
system  in  any  way  that  may  benefit  said 
company  with  which  the  Brotherhood  of  Lo- 
comotive Engineers  are  at  issue,  until  the 
grievances  or  issues  or  differences  of  any 
nature  or  kind  have  been  amicably  settled," 
■ — is  plainly  a  rule  or  agreement  in  restraint 
of  trade  or  commerce  and  violative  of  the 
act  of  Congress  of  July  2,  1890,  §  1.  Water- 
house  V.  Comer,  55  Fed.  149,  19:  403 

166.  All  persons  combining  to  carry  out 
the  rule  of  the  Brotherhood  of  Locomotive 
Engineers  which  requires  employees  on  one 
road  to  refuse  to  handle  property  belong- 
ing to  a  connecting  road  on  which  a  strike 
of  engineers  is  pending  are,  in  case  such 
roads  are  subject  to  the  Interstate  Com- 
merce Law,  punishable  under  U.  S.  Rev. 
Stat.  §  5440,  U.  S.  Comp.  Stat.  1901,  p. 
3676,  relating  to  conspiracies  to  commit  of- 
fenses against  the  United  States,  if  any 
one  of  them  does  an  act  in  furtherance  of 
the  combination.  Toledo.  A.  A.  &  X.  M.  E. 
Co.  V.  Pennsylvania  Co.  Si  Fed.  730,  19:  387 


CONSPIRACY.   II.   d. 


558 


d.  Of  Railroad  Companies  or  Carriers. 

Evidence  as  to,  see  Evidence,  2032. 
Combination  of  Street  Railways,  see  Street 

Railways,  52,  59,  CO. 
Question  for  Jury  as  to,  see  Trial,  246. 
For  Editorial  Notes,  see  infra.  III.  §  2. 

167.  Contracts  between  carriers  are  not 
necessarily  invalid  because  they  incidentally 
restrict  competition,  but  this  depends  upon 
their  reasonableness.  United  States  v. 
Trans-Missouri  Freight  Asso.  19  U.  S.  App. 
36,  7  C.  C.  A.  15,  58  Fed.  58,  24:  73 
[Reversed  on  Other  Grounds  by  the  Supreme 
Court  of  the  United  States  in  166  U  S.  290, 
41  L.  ed.  1007,  17  Sup.  Ct.  Rep.  540.] 

168.  A  combination  of  railroads  is  not  in 
violation  of  Ga.  Const,  art.  4,  §  ^  H  4  (Civ. 
Code,  §  5800),  prohibiting  a  corporation  to 
buy  shares  or  stock  in  or  make  contracts 
with  any  other  corporation  which  shall  have 
the  effect  of  creating  a  monopoly  or  lessen- 
ing competition,  if,  as  a  general  result  of  the 
combination,  the  public  at  large,  as  distin- 
guished from  the  people  of  special  or  par- 
ticular communities,  are  in  consequence  ben- 
efited. State  V.  Central  of  Georgia  R.  Co. 
109  Ga.  716,  35  S.  E.  37,  48:  351 

169.  A  contract  between  competing  rail- 
road companies  is  not  necessarily  "in  re- 
straint of  trade"  and  illegal,  within  the 
meaning  of  the  anti-trust  act  of  Congress, 
because  it  in  some  manner  imposes  a  re- 
striction upon  competition.  United  States  v. 
Trans-Missouri  Freight  Asso.  19  U.  S.  App. 
36,  7  C.  C.  A.  15,  58  Fed.  58,  24:  73 
[Reversed  on  Other  Grounds  by  the  Supreme 
Court  of  the  United  States  in  166  U.  S.  290, 
41  L.  ed.  1007,  17  Sup.  Ct.  Rep.  540.] 

170.  An  association  of  railroad  companies 
cannot  be  held  to  create  a  monopoly,  within 
the  meaning  of  the  anti-trust  act  of  Con- 
gress, where  it  is  not  intended  to  have  any 
trade  of  its  own,  but  to  be  a  mere  adviser 
of  its  members,  who  are  competitors  of  each 
other.  United  States  v.  Trans- Missouri 
Freight  Asso.  19  U.  S.  App.  36,  7  C.  C.  A.  15, 
58  Fed.  58,  24:  73 

171.  A  contract  between  corporations 
charged  with  a  public  duty,  such  as  is  that 
of  common  carriers,  providing  for  the  forma- 
tion of  a  combination  having  no  other  pur- 
pose than  that  of  stifling  competition  and 
providing  means  to  accomplish  that  object, 
is  illegal  and  against  public  policy.  Cleve- 
land, C.  C.  &  T.  R.  Co.  V.  Closser,  126  Ind. 
348,  26  N.  E.  159,  9;  754 

172.  A  combination  of  persons,  without 
regard  to  their  occupation,  which  will  have 
the  effect  to  defeat  the  provisions  of  the 
Interstate  Commerce  Law  inhibiting  dis- 
criminations in  the  transportation  of  freight 
and  passengers ;  and,  further,  to  restrain  the 
trade  or  commerce  of  the  country, — will  be 
obnoxious  to  the  penalties  therein  pre- 
scribed.   Waterhouse  v.  Comer,  55  Fed.  149, 

19:  403 
By  lease  of  road. 

173.  A  railroad  company's  lease  of  its 
franchises  and  roads  to  a  railway  corpora- 
tion of  another  state,  which  was  not  only 
unauthorized   but   was    expressly    forbidden 


by  law,  and  the  effect  of  which  was  to 
combine  coal  producers  and  carriers  and  to 
partially  destroy  competition  in  the  produc- 
tion and  sale  of  anthracite  coal,  a  staple 
commodity  of  the  state, — is  an  excess  of 
corporate  power  which  tends  to  monopoly 
and  the  public  injury.  Stockton  v.  Central 
R.  Co.  (N.  J.  Ch.)  50  N.  J.  Eq.  52,  24  Atl. 
904,  17:97 

By  consolidation. 
Consolidation  of  Street  Railway  Lines,  see 

Street  Railways,  62-65. 
For  Editorial  Notes,  see  infra,  III.  §  2. 

174.  A  lease  of  a  railroad,  fair  in  its 
terms,  for  ten  years,  does  not  involve  an 
abandonment  of  the  railroad  enterprise,  or 
come  within  the  prohibition  of  Mont.  Const, 
art.  15,  §  6,  against  consolidation  of  parallel 
or  competing  railroads  or  the  uniting  of 
their  business  or  earnings.  State  ex  rel. 
Nolan  V.  Montana  R.  Co.  21  Mont.  221,  53 
Pac.  623,  45:  271 

175.  Parallel  railroads  are  those  which  run 
in  one  general  direction,  traversing  the  same 
section  of  country,  and  running  within  a 
few  miles  of  one  another  throughout  their 
respective  routes.  Id. 

176.  Competing  railroads  within  the 
meaning  of  Mont.  Const,  art.  15,  §  6,  compre- 
hend not  only  railroads  which  run  between 
the  same  two  principal  points  on  their  own 
lines,  but  those  which,  having  one  common 
terminus,  are  yet  actually  connected  with 
other  railroads,  and  which  by  arrangements 
with  them  are  so  related  to  one  another  in 
fact  as  to  give  them  the  opportunity,  by 
geographical  situation,  directly  to  cut  rates 
to  principal  or  terminal  points.  Id. 

177.  The  language  of  the  provision  of  the 
Constitution  of  Texas,  that  "no  railroad 
.  .  .  or  managers  of  any  railroad  corpor- 
ation shall  consolidate  the  stock,  property, 
or    franchises    of    such    corporation     with, 

.  .  .  or  in  any  way  control  any  rail- 
road corporation  owning  or  having  under  its 
control  a  parallel  or  competing  line," — 
evinces  that  control  in  any  manner  and  to 
any  extent  was  intended  to  be  prohibited, 
provided  it  was  such  as  is  calculated  to 
enable  one  railroad,  by  means  of  a  contract 
or  agreement  for  interference  with  the  oth- 
er's affairs,  to  keep  down  competition  be- 
tween them.  Gulf,  C.  &  S.  F.  R.  Co.  v. 
State,  72  Tex.  404,  10  S.  W.  81,  1:849 

To  regulate  rates. 
See  also  Commerce.  61. 

178.  Contracts  between  rival  and  compet- 
ing railroad  companies,  which  prevent  un- 
healthy competition,  but  do  not  raise  rates 
of  transportation  above  the  standard  of  fair 
compensation,  or  violate  any  duty  that  is 
owing  to  the  public  from  noncompeting 
roads,  are  not  void  as  against  public  policy. \ 
Manchester  &  L.  R.  Co.  v.  Concord  R.  Co. 
66  N.  H.  100,  20  Atl.  383,  9:  689 

179.  A  declaration  of  policy  made  by  each 
of  several  carriers,  al  a  meeting,  which  is 
simply  an  expression  of  a  right  which  the 
carriers  have  without  such  declaration,  and 
is  not  made  for  an  illegal  purpose,  and  does 
not  operate  prejudicially  to  shippers,  al- 
thooigh  it  declares  that  rates  are  not  to  be 


554 


CONSPIRACY.   II.   d. 


reduced,  does  not  constitute  an  unlawful 
combination,  where  the  rates  referred  to  are 
reasonable  rates  which  have  resulted  from 
competition.  Post  v.  Southern  R.  Co.  103 
Tenn.  184,  52  S.  W.  301,         '  55:  481 

180.  An  association  of  railroad  companies 
for  mutual  protection  by  establishing  and 
maintaining  reasonable  rates,  rules,  and  reg- 
ulations, is  not  illegal  as  a  restraint  of 
trade,  under  the  anti-trust  act  of  Congress, 
merely  because  it  incidentally  tends  to  re- 
strict competition  in  some  degree,  where 
each  member  of  the  association  must  still 
compete  with  other  members  for  business, 
and,  while  regular  monthly  meetings  are 
provided  for,  at  which  action  may  be  taken, 
five  days'  notice  of  any  proposed  reduction 
of  rates  or  change  of  rules  must  be  given, 
and  members  are  bound  by  the  decision  of 
the  association  unless  they  give  written 
notice  in  ten  days  thereafter  to  the  con- 
trarj',  and  any  member  may  withdraw  on 
thirtv  days'  notice.  United  States  v.  Trans- 
Missouri 'Freight  Asso.  19  U.  S.  App.  30,  7 
C.  C.  A.   15,  58   Fed.   58,  24:  73 

181.  An  agreement  between  several  rail- 
road companies,  some  of  which  own  and 
control  competing  lines,  for  the  appoint- 
ment of  a  common  governing  committee, 
or  an  association  (composed  of  one  member 
from  each  company),  to  fix  the  rates  for 
which  freights  should  be  carried  to  and 
from  points  within  the  state  of  Texas,  is 
illegal  because  contrary  to  Tex.  Const,  art. 
10,  §  5.  Gulf.  C.  &  S.  F.  R.  Co.  v.  State. 
72  Tex.  404,   10  S.  W.  81,  1:849 

182.  Such  agreement  is  not  relieved  from 
illegality  by  the  fact  that  any  company, 
party  to  the  agreement,  has  the  right  of 
withdrawal,  or  that  it  cannot  be  punished 
for  a  failure  to  obey  the  regulations,  or 
that  it  has  not  been  shown  that  the  com- 
panies have  made  charges  in  excess  of  the 
limits  allowed  by  law.  Id. 

183.  Contracts  by  a  railroad  company  with 
other  companies  for  the  establishment  of 
through  routes  and  through  rates  for  the 
continuous  carriage  of  interstate  traffic  do 
not  violate  §  7  of  the  Act  to  Regulate  Com- 
merce, prohibiting  a  combination  to  pre- 
Acnt  the  carriage  of  freights  from  being  con- 
tinuous. Ken  tuck  V  &  I.  Bridge  Co.  v.  T^ouia- 
ville  &  X.  R.  Co.  37  Fed.  567,  2:  289 
To  fix  demurrage  charges. 

ES"ect   of,   on   Right   to   Enforce   Claim   for 
Demurrage,  see  Carriers,  956. 

184.  An  agreement  among  carriers  to 
make  the  charges  for  the  detention  of  cars 
uniform  is  not  a  violation  of  the  law  pre- 
venting agreements  among  rival  carriers  not 
to  compete  with  each  other.  Kentucky 
Wagon  Mis.  Co.  v.  Ohio  &  M.  R.  Co.  OS  Kv. 
152.  .32  S.  W.  505.  36:  8.50 

185.  A  car-service  association  organized  by 
railroad  companies  to  insure  the  prompt,  ac- 
curate, and  impartial  assessing  of  demur- 
rage for  detention  of  cars,  according  to  rules 
approved  by  the  state  railroad  commission, 
is  not  illegal  under  the  clause  of  a  statute 
forbidding  the  formation  of  trusts  or  com- 
bines to  place  the  control,  to  any  extent, 
of    business,    or    the    products    or    earnings 


thereof,  in  the  power  of  trustees,  or  by 
which  any  other  persons  than  the  members 
of  the  combine,  their  proper  officers,  agents, 
and  employees,  shall  the  power  to  dictate 
or  control  the  management  of  business. 
Yazoo  &  M.  V.  R.  Co.  v.  Searles,  85  Miss. 
520,  37  So.  939,  68:  715 

186.  The  refusal  to  switch  cars  for  a  con- 
signee who  refuses  to  pay  the  demurrage 
for  delay  in  unloading,  authorized  by  state 
oflBicials,  is  not  such  an  unreasonable  or  op- 
pressive act  as  to  bring  the  car-service  as- 
sociation which  instigates  it  within  the  leg- 
islation against  trusts  and  combines.       Id. 

187.  An  agreement  between  railroad  com- 
panies by  which  a  plan  is  devised  for  the 
accurate  assessing  and  convenient  and  inex- 
pensive collection  of  demurrage  charges  will 
not  be  pronounced  unlawful  by  the  courts 
except  in  exceptional  cases  of  oppression  and 
wrongdoing.  Id. 
Sleeping  car  companies. 

188.  A  contract  between  a  railroad  and 
a  sleeping  car  company  for  the  use  of  the 
cars  upon  the  road,  which  requires  the  for- 
mer to  pay  a  certain  mileage  per  car  in  case 
the  revenue  of  each  car  should  be  below  a 
specified  amount  per  year,  does  not  affect  or 
tend  to  affect  transportation  or  charges 
therefor  mthin  the  meaning  of  anti-trust 
law,  where  the  railroad  has  no  control  over 
the  cars,  and  any  increase  of  charges  by  the 
sleeping  car  company  would  tend  to  deprive 
it  of  the  mileage  provided  in  the  contract. 
Ft.  Worth  &  D.  C.  R.  Co.  v.  State  (Tex.) 
87  S.  W.  336.  70:  950 

189.  A  contract  by  which  a  railroad  com- 
pany gives  a  sleeping  car  company  the  ex- 
clusive right  to  run  its  cars  upon  the  rail- 
road for  a  term  of  years  does  not  create  any 
restrictions  in  the  free  pursuit  of  a  business 
authorized  by  law,  within  the  meaning  of 
an  anti-trust  act,  since  sleeping  car  compan- 
ies in  general  have  no  right  to  demand  that 
their  cars  shall  be  run  upon  the  railroad.  Id. 

190.  A  contract  between  a  railroad  and  a 
sleeping  car  company  by  which  the  latter 
is  given  the  exclusive  right  to  have  its  cars 
run  over  the  railroad  does  not  create  a  mo- 
nopoly within  the  meaning  of  a  statute  de- 
fining a  monopoly  as  a  combination  cf  cor- 
porations effected  when  the  direction  of 
their  affairs  is  brought  under  the  same  man- 
agement for  the  purpose  of  producing,  or 
where  the  common  management  tends  to 
produce,  a  trust,  or  where  one  company  ac- 
quires the  franchises  of  another  for  the  pur- 
pose of  preventing  or  lessening  competition. 

Id. 
Steamship  companies. 

191.  An  agreement  by  a  steamship  corpor- 
ation to  buy  out  a  competing  line  which,  in 
consideration  of  a  monthly  payment,  agrees 
to  discontinue  running  vessels  between  ports 
mentioned,  and  not  to  charter  or  sell  its  ves- 
sels for  use  on  that  route,  and  not  to  be- 
come in  any  way  interested  in  the  running 
of  steamships  between  those  places,  is  not 
void  as  in  restraint  of  trade.  Leslie  v. 
I^rillard,  110  N.  Y.  519,  15  Atl.  525, 

1:456 

192.  An    agreement    between    owners    of 


CONSPIRACY,   II.   e;  III. 


655 


rival  steamboats  to  divide  the  profits  of  the 
business  in  a  certain  proportion,  without 
creating  any  partnership  or  any  other  duty 
or  obligation  towards  each  other;  and  that 
in  case  either  party  sells  his  boat  for  the 
purpose  of  going  out  of  business  he  shall 
not  engage  in  it  again  for  one  year, — is  void 
on  grounds  of  public  policy  as  an  attempt 
to  prevent  competition  in  business.  Ander- 
son V.  Jett,  89  Ky.  375,  12  S.  W.  670, 

6:  390 

e.  Of  Insurers. 

Insurance  Business  as  Interstate  Commerce, 
see  Commerce,  7. 

Constitutional  Right  to  Combine  for  Main- 
tenance of  Rates,  see  Ccfustitutional 
Law,  739,  740. 

Title  of  Statute  as  to,  see  Statutes,  1S4. 

193.  A  combination  for  the  purpose  of 
maintaining  rates  of  insurance,  although  it 
may  be  a  void  contract,  is  not  an  indictable 
offense  at  common  law.  ^tna  Ins.  Co. 
V.  Com.  106  Ky.  864,  51  S.  W.  624,      45:  355 

194.  Contracts  regulating  insurance  rates 
are  not  within  Ky.  Stat.  §  3915,  prohibiting 
combinations  to  regulate,  control,  or  fix  the 
price  of  "any  merchandise,  manufactured 
articles,  or  property  of  any  kind."  Id. 

195.  It  is  not  illegal  at  common  law  for 
insurance  companies  to  make  a  combination 
to  establish  uniform  rates  of  insurance  and 
of  commissions  to  agents.  Queen  Ins.  Co.  v. 
State,  86  Tex.  250,  24  S.  W.  397,  22:  483 

196.  A  combination  of  insurance  compan- 
ies to  establish  uniform  rates  of  insurance 
and  of  agents'  commissions  is  not  illegal 
under  the  Texas  anti-trust  law  of  March 
30,  1889,  prohibiting  trusts  for  restrictions 
in  trade  or  the  production,  price,  or  rates  of 
transportation  for  commodities  or  articles  of 
commerce,  since  a  contract  of  insurance  is 
not  "trade,"  nor  is  it  an  "article  of  com- 
merce" or  a  "commodity."  Id. 

197.  A  combination  by  foreign  insurance 
companies  to  increase  the  rates  of  insur- 
ance is  in  violation  of  Kan.  Laws  1889,  chap. 
257,  as  an  unlawful  trust  and  combination 
"in  restraint  of  trade  and  products;"  and 
such  companies  and  their  local  agents,  who 
attempt  to  and  do  enforce  such  combined 
rates,  are  subject  to  prosecution  under  that 
statute.  State  v.  Phipps,  50  Kan.  609,  31 
Pac.  1097,  18:  657 

198.  An  unlawful  combination  of  insur- 
ers in  violation  of  Mo.  act  1897  prohibiting 
any  pool  or  combination  to  regulate  prices 
or  the  premium  to  be  paid  for  insurance  is 
made  by  insurance  companies,  each  of  which 
buys  and  furnishes  to  its  agent  the  rate 
bonk  and  correction  slips  prepared  by  a  cer- 
tain person,  while  the  agents  form  what  is 
called  an  "Underwriters'  Social  Club,"  to 
the  secretary  of  which,  who  is  an  inexpe- 
rienced younsr  man.  and  not  an  insurance  ex- 
pert, each  local  agent  submits  his  daily  re- 
ports in  an  unsealed  envelope,  addressed  to 
his  company,  that  he  may  see  that  the  agent 
does  not  write  policies  at  less  than  the  rates 
agreed.      State    ex    rel.   Crow   v.    Firemen's 


Fund  Ins.  Co.  152  Mo.  1,  52  S.  W.  595, 

45:  363 

199.  Insurance  companies  charged  with 
violating  the  statutes  against  illegal  combi- 
nations, which  make  common  cause  with 
other  companies  similarly  charged  which  are 
found  guilty,  will  be  treated  in  the  same 
way  as  the  other  defendants,  and  ousted 
of  all  rights,  privileges,  and  franchises  un- 
der the  law,  although  the  evidence  does  not 
show  that  they  are  guilty.  Id. 

200.  A  foreign  insurance  company  doing 
business  in  Arkansas  which  enters  into  an 
agreement  with  other  insurance  compan- 
ies formed  outside  the  state,  for  the  purpose 
of  fixing  the  rates  of  insurance  in  foreign 
countries,  not  intended  to  affect,  and  which 
does  not  affect,  persons,  property,  or  prices 
of  insurance  in  the  state,  does  not  there- 
by subject  itself  to  the  penalty  imposed  by 
Ark.  act  May  6,  1899,  upon  any  corpora- 
tion transacting  any  kind  of  business  in  the 
state,  which  becomes  a  party  to  any  pool  or 
combination  to  fix  or/ limit  rates  of  insur- 
ance. State  v.  Lancashire  F.  Ins.  Co.  66 
Ark.  466,  51   S.  W.  633,  45:  348 


m.  Editorial  Notes. 

§  I.  Generally. 

Defined.     12:  193.* 

Actionable   quality   of.      11:546;*    12:  196.» 

To  commit  tort.     6:  629.* 

To  injure  trade.    2:  33.* 

Combinations  of  workmen.     12:  193.* 

Dictation  to  and  coercion  of  employers  and 
employees.    12:  195.* 

Enjoining  use  of  threats  and  intimidation 
to  prevent  one  entering 
another's  employment.  12: 
195.* 

Boycotting.     12:  194.* 

Coercing  choice  of  employment.     12:  193.* 

Injunction  against  strikes.    28:  464. 

Strike  as  affecting  carrier's  liability.  35: 
623. 

Instigation  to.    25:  345. 

Cruel  and  unusual  punishment  for.    35:  571. 

Liability  for  collateral  crimes  by  confeder- 
ates.    1:  211.* 

Admissibility  of  acts  and  declarations  of 
coconspirators.     1 :  273.* 

Evidence  of;  acts  and  declarations.  12: 
197.* 

Admissibility  of  declarations  of  coconspira- 
tors as  res  gestce.  19: 
745. 

Homicide  in  carrying  out.     68:  193. 

§  2.  Monopoly  in  general. 

As  to  Contracts  in  Restraint  of  Trade,  Gen- 
erallv,  see  Contracts,  VTII. 
§  36^ 

Combination  of  Railroads,  see  Railroads,  III. 
§  2. 

Distinction  between  franchise  and  mere  mo- 
•  nopoly.     4:  616. 

Contracts  to  stifle  competition  in  trade;  con- 
spiracies to  injure  trade. 
2:  33;*  6:  457;*  8:  500.* 

Nature  of;  illegal  combination  to  fix  price. 
13:770.* 


556 


CONSTABLE— CONSTITUTIONAL  LAW. 


In   contract    for    removal   of   garbage.     27: 

540. 
Illegality  of  combination  by  corporations  to 

create.     9:  37.* 
Unlawful    combinations    between    railroads. 

1:  849;*  9:  690.* 
Creation  of,  by  municipality.     13:  383.* 
Municipal    contracts    for    work    or    articles 
which  embody  a  patented 
invention.     18:  45. 
As  public  nuisance;   remedy  by  injunction. 

12:  753.* 
Constitutionality  of  grant  of.     53:  763. 
Legal    restrictions    on    department    stores. 

48:  261. 
§  3.  Illegal  trusts  under  modern  anti-trust 

laws. 
Generally.     64:689. 
Constitutionality  of  statute.     64:  689. 

Under    Federal    Constitution.     64:  689. 
Under  state  Constitution.     64:  694. 
Effect    and    construction    of    Federal    anti- 
trust law.     64:  698. 
General  purpose.     64:  698. 
What  is  interstate  commerce  under  this 

statute.     64:  700. 
What  are  unlawful  restraints  and  mo- 
nopolies  imder   this    stat- 
ute.    64:  705. 
Agreement  not  to  engage   in   business. 

64:  7n. 
Effect  on  collateral  contracts.     64:  712. 
Effect    on    pre-existing    contracts.     64: 

713. 
Effect  in  regard  to  patents.     64:  713. 
Remedies.     64:  714. 

Criminal   prosecution     64:  714. 
Injunction.     64:  715. 
Action  for  triple  damages.    64:  716. 
Case   of   the  Northern   Securities   Com- 
pany.    64:  717. 
Effect  and  construction  of  state  anti-trust 
laws.     64:  719. 


CONSTABLE. 


Liability  of,  see  Bonds,  71;  False  Imprison- 
ment, 24;  Garnishment,  97;  Officers, 
209. 

Garnishment  of,  see  Garnishment,  98. 

Conclusiveness  of  Judgment  Against,  see 
Judgment,  277. 

Levy  liv.  on  Railroad  Property,  see  Levy 
and  Seizure,  29. 

Libel  of,  see  Libel  and  Slander,  74. 

Right  to  Reward,  see  Reward,  4. 

Editorial  Notes. 

As  public  officers.     17:247. 

Place  at  which  official  acts-  of,  may  be  per- 
formed.    .33:92. 

Execution  of  bond  of,  on  condition  that 
others  shall  sign.     45:  330. 

Penalty  as  limit  <<f  liability  on  bond. 
55:  393. 


CONSTITUTION. 

Of  Benefit  Society,  see  Benevolent  Societies, 

III.;    Insurance,   189-199. 
Of  Religious  Society,  see  Religious  Societies. 

II.  a. 


CONSTITUTIONAL   CONVENTION. 
Debates  of,  see  Constitutional  Law,  52. 

#  >  » 

CONSTITUTIONAL  LAW. 

L  In  General;  Governmental  Matters. 

a.  Adoption;   Amendment;   Construc- 

tion. 

1.  Adoption. 

2.  Amendments. 

3.  Construction. 

a.  In  General. 

6.  Application     of     Federal 

Construction. 
c.  Self-Executing  Provisions. 

b.  Ex  Post  Facto  and  Retrospective 

Laws. 

1.  Ex  Post  Facto  Laws. 

2.  Retrospective  Laws. 

a.  In  General. 

b.  Curative  Acta. 

c.  Vested  Rights. 

d.  Delegation  of  Powers. 

1.  In  General. 

2.  To  People. 

3.  To  Judiciary. 

4.  To     I^cal     Authorities     and 

Boards  and  Commissioners. 

5.  Of  Judicial  Power. 

e.  Separation  of  Powers. 

1.  In  General. 

2.  Encroachment      on       Judicial 

Power. 

3.  As    to    Appointment    of    Of- 

ficers. 

f.  Local  Self-Government. 

g.  Functions  and  Powers  of  State. 
h.  Abandonment  of  Power. 

II.  Rights  of  Persons  and  Property. 

a.  Equal  Protection  and  Privileges; 
Abridging  Immunities  and 
Privileges. 

1.  In  General. 

2.  As  to  Nonresidents  or  Aliens. 

a.  Nonresidents. 
6.  Aliens. 

3.  As    to    Corporations,    Associa- 

tions, and  Carriers. 

a.  In  General. 

6.  Railroad  Companies;  Car- 
riers. 

4.  As  to  Taxes  and  Assessments. 

5.  As  to  Regulation  of  Business; 

License. 

a.  In  General. 

b.  Sunday  Laws. 

c.  As   to   Employees. 

6.  Attorneys'  Fees;   Costs. 

7.  Matters    of   Practice. 

8.  Criminal   Matters. 


CONSTITUTIONAL  LAW. 


657 


n. — continued. 

b.  Due  Process  of  Law  or  Law  of  the 
Land;  Guaranty  of  Right  to 
Life,  Liberty,   and   Property. 

1.  In  General. 

2.  As   to   Property  Rights    Gen- 

erally. 
a.  In  General. 
6.  Eminent  Domain. 

3.  Taxation  and  Public  Improve- 

ments. 

4.  As  to  Regulation  of  Business; 

Inspection;  License;  Re- 
strictions on  Right  of 
Contract. 

c  In  General. 

6.  Restricting  Right  of  Con- 
tract. , 

(1)  In  Genel-al. 

(2)  With  Employees. 
0.  Regulation  of  Rates. 

d.  Regulation  of  Sales. 

5.  As   to   Use   or   Enjoyment   of 

Property. 

6.  As  to  Rights  in  Office. 

7.  Remedies  and  Procedure. 

a.  In  General. 

b.  As  to  Right  of  Action  or 

Defense. 

(1)  Of    Action. 

(a)  In  General. 

(b)  Against  Rail- 

road C  o  m- 
panies  or  Car- 
riers. 

(2)  Of  Defense. 

c.  Notice  and  Hearing. 

d.  As   to   Evidence. 

8.  Criminal  Matters. 
C  Police  Power. 

1.  In  General. 

2.  State  Engaging  in  Business. 

3.  As  to  Use,  Enjoyment,  and  De- 

struction of  Property. 

4.  Restrictions      on      Contracts, 

Business,  and  Occupa- 
tions ;   Health. 

a.  In  General. 

6.  Particular  Occupations. 

c.  Matters    between    Master 

and  Servant. 

d.  Regulation    of    Manufac- 

ture and  Sales. 
6.  As  to  Vices;  Crimes. 

d.  Freedom    of    Speech    and    of    the 

Press;  Religious  Freedom. 

e.  Natural   Rights;    Implied  Guaran- 

ties. 

f.  Guaranties  of  Justice. 

g.  Impairing  Obligation  of  Contracts. 

1.  As  to  Subject-Matter. 

a.  In  General;  By  Statutes. 

(1)  Generally. 

(2)  As      to      Corporate 

Rights,     Property, 
and  Liabilities. 
6.  By  Cliange  of  Decisions. 

2.  As  to  Remedies, 
rn.  Editorial    Notes. 


Who  may  Question  Constitutionality  of 
Statute,  see  Action  or  Suit,  57-63;  In- 
surance, 37;  Mandamus,  208-210;  Par- 
ties, 11,  12;  Physicians  and  Surgeons, 
9. 

As  to  Appellate  Jurisdiction,  see  Appeal  and 
Error,  762,  821. 

Jurisdiction  of  the  United  States  Supreme 
Court  over  Constitutional  Questions,  see 
Appeal  and  Error,  I.  a,  2. 

Jurisdiction  of  State  Courts  over  Constitu- 
tional Questions,  see  appeal  and  Error, 
II.  c,  2. 

As  to  Bill  of  Attainder,  see  Attainder. 

Statute  Over-Riding  Court  Rules  as  to 
Admission  of  Attorney,  see  Attorneys, 
2. 

Restricting  Banking  Business,  see  Banks,  L 

As  to  Location  of  State  Capital,  see  Capital. 

As  to  Regulation  of  Carriers,  see  Carriers, 
III. 

Right  to  Bear  Arms,  see  Carrying  Weapons. 

As  to  Civil  Rights,  see  Civil  Rights. 

As  to  Civil  Service  Laws,  see  Civil  Service. 

As  to  Abolishing  Office  of  Clerk  of  Court, 
see  Clerks,  19. 

As  to  Regulations  of  Interstate  Commerce, 
see  Commerce. 

As  to  Confiscation,  see   Confiscation. 

In  Abolishing  Existing  County,  see  Coun- 
ties,  10. 

Rules  of  Decision  in  Determining  Consti- 
tutionality of  Statutes,  see  Courts,  V.  c 

As  to  Slavery  and  Involuntary  Servitude, 
see  Criminal  Law,  193. 

In  Arrangement  of  Election  Districts,  see 
Election  Districts. 

As  to  Voters  and  Elections,  see  Elections. 

As  to  Choosing  Presidential  Electors,  see 
Presidential  Electors. 

As  to  Taking  Property  for  Public  Use,  see 
Eminent  Domain. 

Prohibition  against  Excessive  Fines,  see 
Fines,  1. 

As  to  Number  of  Grand  Jury,  see  Grand 
Jury,  7. 

Considering  Constitutionality  of  Act  on 
Habeas  Corpus,  see  Habeas  Corpus,  20, 
21. 

Exemption  of  Municipality  from  Liability 
for  Defective  Condition  of  Footways, 
see  Highways,  228. 

As  to  Imprisonment  for  Debt,  see  Contempt 
of  Court,  95-98;  Imprisonment. 

Provision  for  Estoppel  of  Insurer  as  to 
Value  of  Property  Insured,  see  Insur- 
ance, 1093. 

As  to  Involuntary  Servitude,  see  Involun- 
tary Servitude. 

Right  to  Trial  by  Jury,  see  Jury,  I. 

In  Reducing  Jurisdiction  of  Justices,  see 
Justice  of  the  Peace,  4. 

Refusal  to  Perform  Duties  on  Ground  of 
Conflict  with  Constitution,  see  Officers, 
172. 

As  to  Appointment  and  Election  of  Officers, 
see  Officers,  I.  b. 

Legislative  Power  to  Define  Practise  of 
Medicine,  see  Physicians  and  Surgeons, 
1. 

Regulation  of  Press  Association  Business, 
eee  Press  Association,  1. 


658 


CONSTITUTIONAL  LAW,   L    a,    1,  2. 


As  to  Use  of  Public  Funds,  see  Public 
Moneys. 

Constitution  of  Church,  see  Religious  So- 
cieties, II.  a. 

Sheriffs  Right  to  Take  Photograph,  etc.,  of 
Prisoner,  see  Sheriff,  3. 

As  to  Search  and  Seizure,  see  Search  and 
Seizure. 

As  to  Enactment  of  Statute,  see  Statutes, 
La. 

Effect  on  Balance  of  Statute  of  Unconsti- 
tutional Provision,  see  Statutes,  I.  c.  2. 

As  to  Title  of  Statutes,  see  Statutes,  I.  e. 

Matters  as  to  Amendment,  Repeal,  or  •  Re- 
enactment  of  Statute,  see  Statutes,  III. 

Question  for  Court  as  to  Constitutionality 
of  Statute,  see  Trial,  109,  110. 

As  to  Right  to  Local  Jury,  see  Venue,  23,  24. 

As  to  Privilege  of  Witness,  see  Witnesses, 
II.  c. 


I.  In  General;  Governmental  Matters. 

a.  Adoption;   Amendment;   Construction. 

1.  Adoption. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

1.  Ihe  recommendation  of  a  constitu- 
tional convention,  and  the  submission  of  a 
proposal  therefor  to  popular  vote,  are  prop- 
erly made  by  the  legislature  in  the  form  of 
a  joint  resolution,  and  not  in  that  of  an  or- 
dinary law.  State  ex  rel.  Wineman  v.  Dahl, 
6  X.  b.  81,  68  N.  W.  418,  34:  97 

2.  If  a  constitution  has  been  recognized  as 
valid  in  its  entirety  by  both  the  executive 
and  legislative  branches  of  the  government 
after  being  formed  and  promulgated  ac- 
cording to  the  forms  of  law,  the  judicial  de- 
partment will  not  declare  it  or  any  part  of 
it  invalid,  although  after  it  was  submitted 
to  and  voted  upon  by  the  people  the  con- 
vention elected  to  draft  it,  made  several 
changes  in  it,  and  promulgated  it  as  changed. 
Miller  v.  Johnson,  92  Ky.  589,  18  S.  W. 
622,  15 :  524 

2.  Amendments. 

Review  of  Determination  as  to,  see  Certi- 
orari, 4. 

Review  of  Legislative  Action  as  to,  see 
Courts,    119-121. 

Governor's  Power  to  Employ  Attorneys  to 
Assist  in  Drafting,  see  Governor,  2. 

Injunction  against  Submission  to  Vote,  see 
Injunction,  250. 

See  also  infra,  50-.52. 

For  Editorial  Notes,  see  infra,  III.  §  2. 

Proper  subjects  of  amendment. 

3.  The  declaration  in  a  state  Constitu- 
tion, that  a  certain  city  is  the  seat  of  gov- 
ernment and  shall  so  remain  "until  changed 
by  law,"  does  not  withdraw  this  provision 
from  the  possibility  of  amendment,  although 
the  section  itself  provides  for  change  by 
statute  approved  by  the  people.  Livorniore 
V.  Waite,  102  Cal.  11.3,  36  Pac.  424,    25:  312 


4.  The  establishment  of  the  seat  of  gov- 
ernment of  a  state  is  a  proper  subject  of 
constitutional  control,  and  therefore  of 
constitutional  amendment.  Edwards  v.  Le- 
sueur,  132  Mo.  410,  33  S.  W.  1130,      31:  815 

5.  Conditions  imposed  and  powers  dele- 
gated by  a  proposed  constitutional  amend- 
ment to  change  the  location  of  the  sent  of 
state  government,  whereby,  in  addition  to 
the  vote  of  the  people  which  the  existing 
Constitution  requires  for  an  amendment,  do- 
nations of  property  and  the  erection  of  state 
buildings,  to  be  approved  and  accepted  by  a 
commission,  are  made  a  condition  of  the 
change  of  location,  will  not  make  the  pro- 
posed amendment  inoperative,  since  upon 
the  vote  of  the  people  adopting  the  amend- 
ment the  conditions  will  be  imposed  and  the 
powers  delegated  by  the  Constitution  itself. 

Id. 

6.  An  amendment  of  the  state  Constitu- 
tion by  changing  the  seat  of  government  to 
another  city  on  condition  of  a  certain  dona- 
tion of  land  and  money  and  an  approval  by 
certain  officers  of  the  site  donated  is  not 
such  an  amendment  as  the  legislature  is 
authorized  to  submit  to  the  vote  of  the  peo- 
ple, since  it  would  not,  upon  adoption  by  the 
people,  become  an  effective  part  of  the 
Constitution  without  subsequent  acts  and 
the  approval  thereof  by  certain  officers  and 
the  exercise  of  discretion  by  the  commission. 
Livermore  v.  Waite,  102  Cal.  113,  36  Pac. 
424,  25:  312 
Publication  of  proposed  amendments. 
Mandamus  to  Compel,  see  Mandamus,  217. 

7.  The  publication  of  proposed  constitu- 
tional amendments,  with  the  statutes  of  the 
year,  after  they  have  been  concurred  in  by 
both  houses  of  the  legislature,  sufficiently 
complies  with  the  requirement  of  publica- 
tion for  three  months  before  election,  al- 
though their  publication  was  from  sixteen 
to  eighteen  months  prior  thereto, — at  least 
where  this  mode  of  publication  of  the  pro- 
posed amendments  has  been  uniformly  fol- 
lowed in  numerous  instances.  State  ex  rel 
Torryson  v.  Grey,  21  Nev.  378,  32  Pac.  190. 

19:  134 

8.  Publication  of  a  proposed  amendment 
two  weeks  only  before  election,  instead  of 
three  months  as  required  by  Mont.  Const, 
art.  19,  §  9,  is  fatal  to  the  amendment,  as 
the  provision  is  that  the  secretary  of  state 
"shall"  cause  the  publishing  for  three 
months,  and  it  is  also  declared  in  another 
section  that  the  provisions  of  the  Constitu- 
tion are  mandatory  and  prohibitory,  iinless 
by  express  words  declared  to  be  otherwise. 
State  ex  rel.  Woods  v.  Tooker,  15  Mont.  8, 
37  Pac.  840,  25:  560 

9.  The  publication  of  a  proposed  consti- 
tutional amendment  under  Pa.  Const,  art. 
18,  §  1,  providing  that  the  secretary  of 
the  commonwealth  shall  cause  the  amend- 
ment to  be  published  three  months  before 
the  next  general  election,  and  that  the  next 
general  assembly  chosen  must  pass  upon 
the  amendment  before  it  is  submitted  to  the 
vote  of  the  people,  is  sufficient  if  made  three 
months  before  the  next  general  election  at 

'  which  members  of  assembly  are  chosen,  al- 


CONSTITUTIONAL  LAW,    I.  a,    2. 


559 


though  that  is  not  the  next  after  the  pro- 
posal of  the  amendment,  since  the  provision 
as  to  the  time  of  publication  is  directory 
merely,  and  the  object  of  the  Constitution 
is  equally  well  served  by  the  later  publica- 
tion. Com.  ex  rel.  Elkin  v.  Griest,  196  Pa. 
396,  46  Atl.  505,  50:  568 

Sufficiency  of  bill  proposing. 

10.  An  act  proposing  a  constitutional 
amendment  need  not  be  set  out  verbatim  in 
the  legislative  journals,  where  the  bill  is 
fully  and  clearly  identified  by  its  title,  and 
the  houses  each  hav^e  the  bill  in  possession 
when  it  is  passed.  Worman  v.  Hagan,  78 
Md.  152,  27  Atl.  616,  21:  716 
Governor's  approval  of  proposed  amend- 
ment. 

11.  Approval  by  the  governor  of  a  pro- 
posed amendment  to  the  Constitution  is  not 
required  by  Pa.  Const,  art.  3,  §  26,  entitled 
"Of  Legislation,"  and  providing  that  every 
order,  resolution,  or  vote  shall  be  submitted 
to  the  governor  before  it  takes  effect,  but 
making  no  reference  to  amendments,  since 
the  procedure  governing  the  adoption  of 
amendments  is  provided  by  art.  18,  §  1, 
which  requires  a  proposal  of  an  amendment 
in  either  house,  an  agreement  to  the  same 
by  both  houses,  a  publication  thereof  by  the 
secretary  of  the  commonwealth,  a  second 
agreement  by  the  two  houses,  a  second  pub- 
lication by  the  secretary,  and  finally  a  vote 
of  the  people,  which,  if  a  majority  vote 
favorably,  causes  the  amendment  to  become 
a  part  of  the  Constitution,  but  nowhere 
gives  any  warrant  for  interference  by  the 
governor;  and,  as  this  is  a  complete  system 
in  itself,  no  part  of  art.  3,  §  26,  can  be  read 
into  it  bv  implication.  Com.  ex  rel.  Elkin 
V.  Griest,"^  196  Pa.  39^5,  46  Atl.  505,  50:  568 
Submission  of  proposed  amendment  to  vote. 

12.  The  submission  to  popular  vote  of  a 
proposal  to  hold  a  constitutional  convention 
is  properly  made  by  the  legislature,  al- 
though the  legislature  has  the  power  to  take 
the  initiative  with  respect  to  the  calling  of 
such  convention.  State  ex  rel.  Wineman  v. 
Dahl,  6  N.  D.  81,  68  N.  W.  418,  34:  97 
Form  of  submitting  amendments. 

Review    of    Legislative    Action    as    to,    see 
Courts,  120,  121. 

13.  A  proposed  constitutional  amendment 
providing  in  one  proposition  for  the  election 
of  all  judges,  and  fixing  their  terms  of  of- 
fice, as  well  as  for  the  division  of  the  state 
into  circuit  and  chancery  court  districts, 
with  party  nominations  by  districts,  while  it 
proposes  to  repeal  Miss.  Const.  §§  145,  149, 
151-153,  one  of  which  provides  for  the  ap- 
pointment of  supreme  court  jvidges,  another 
fixes  their  term  of  office,  another  provides 
for  appointments  to  fill  vacancies,  another 
for  the  division  of  the  state  into  circuit 
and  chancery  court  districts,  while  the  other 
provides  for  the  appointment  of  circuit  and 
chancery  court  judges,  is  void  for  lack  of 
conformity  to  Miss.  Const.  1890,  §  273,  re- 
quiring amendments,  if  more  than  one  shall 
be  submitted  at  one  time,  to  be  submitted 
in  such  manner  and  form  that  the  people 
may   vote   for  or  against   each   amehdment 


separately.     State  ex  rel.  McClurg  v.  Powell, 
77  Miss.  543,  27  So.  927,  48:  652 

14.  It  is  too  late  to  question  an  election 
on  proposed  constitutional  amendments  be- 
cause of  ambiguity  in  the  submitting  stat- 
ute, as  to  their  separate  submission,  when 
the  election  has  proceeded  throughout  the 
state  without  objection  on  the  part  of  any 
person,  and  every  qualified  elector  who 
desired  to  exercise  his  franchise  has  done 
so  without  seeking  to  vote  on  some  of  the 
amendments  while  refraining  from  voting  on 
the  rest.  State,  Bott,  Prosecutor,  v.  Wurts 
(N.  J.  Err.  •&  App.),  63  N.  J.  L.  289,  43  Atl. 
744,  881.  45:  251 
Vote  on  question  of  adopting. 

Who  Entitled  to  Vote,  see  Elections,  10,  49. 
Judicial  Notice  of  Votes  Cast,  see  Evidence, 
39,  40. 

15.  A  vote  in  favor  of  a  proposed  consti- 
tutional amendment,  taken  by  yeas  and 
nays  and  entered  in  full  on  the  legislative 
journals  in  full  compliance  with  the  consti- 
tutional provisions  on  this  subject,  is  suffi- 
cient without  having  the  resolution  read  on 
different  days  or  in  other  respects  taking 
the  course  required  for  ordinary  legislation. 
Edwards  v  Lesueur,  132  Mo.  410,  33  S.  W. 
1130,  31:815 
Majority  required  for  adoption  of. 

16.  An  amendment  to  the  Ohio  Constitu- 
tion, submitted  by  the  legislature  under  the 
provisions  of  §  1,  art.  16  of  that  instru- 
ment, requires  for  its  adoption  a  majority  of 
all  the  votes  cast  at  the  election  for  sen- 
ators and  representatives  at  which  it  is  sub- 
mitted to  the  electors  of  the  state  for  their 
approval  or  rejection.  State  ex  rel.  Cope  v. 
Foraker,  46  Ohio  St.  677,  23  N.  E.  491. 

6:  422 

17.  A  majority  of  all  the  electors  voting 
at  the  election  for  any  purpose,  and  not 
simply  all  who  vote  on  the  adoption  or  re- 
jection of  the  constitutional  amendment  sub- 
mitted at  a  general  election,  is  necessary  for 
the  adoption  of  a  constitutional  amend- 
ment under  Miss.  Const.  1890,  §  273,  requir- 
ing "a  majority  of  the  qualified  electors 
voting."  State  ex  rel.  McClurg  v.  Powell,  77 
Miss.  543,  27  So.  927,  48:652 

18.  A  constitutional  amendment  is  not 
ratified  by  a  majority  of  "the  electors  of  the 
state,"  within  the  meaning  of  Ind.  Const, 
art.  16,  §  1,  requiring  a  majority  of  said 
electors  to  ratify  an  amendment,  where  the 
persons  voting  in  favor  of  it  at  a  general 
election,  though  more  than  those  who  vote 
against  it,  are  less  than  half  of  those  who 
vote  for  governor  or  for  President,  or  even 
for  another  constitutional  amendment  on  the 
same  ballot,  notwithstanding  the  provision 
of  art.  16,  §  2,  that  where  two  or  more 
amendments  are  submitted  at  the  same 
time  they  shall  be  submitted  in  such  man- 
ner that  the  electors  shall  vote  for  or 
against  each  of  them  separately.  Re  Denny, 
156  Ind.  104,  59  N.  E.  359,  51:  722 

19.  Ballots  properly  rejected  are  to  be  ex- 
cluded from  the  computation  of  votes  cast 
for  or  against  proposed  constitutional 
amendments,  under  N.  J.  Const,  art.  9,  re- 
quiring their  approval  or  ratification  by  a 


560 


CONSTITUTIONAL  LAW,  I.  a,  3. 


majority  of  the  qualified  electors  voting 
thereon.  State,  Bott,  Prosecutor,  v  Wurts 
(N.  J.  Err.  &  App.)  63  N.  J.  L.  289,  43  Atl. 
744,  881,  45:  251 

20.  A  constitutional  requirement  that 
amendments  shall  be  submitted  so  that  the 
electors  shall  vote  for  or  against  each 
separately  does  not  limit  the  consideration 
to  the  votes  cast  for  or  against  the  amend- 
ment alone  in  determining  whether  or  not 
it  has  been  ratified  by  a  majority  of  the 
electors  of  the  state.  Re  Denny,  156  Ind. 
104,  59  N.  E.  359,  51:  722 
Proclamation  of  adoption. 

21.  The  governor's  proclamation  of  the 
adoption  of  a  constitutional  amendment  is 
conclusive  of  that  fact,  under  the  Maryland 
Constitution;  and  the  amendment  thereby 
becomes  eo  instanti  a  part  of  the  Constitu- 
tion, and  no  other  officer,  nor  any  other  de- 
partment of  the  government,  can  review  his 
decision.  Worman  v.  Hagan,  78  Md.  152,  27 
Atl.  616,  21:716 
Time  of  taking  effect. 

22.  A  proposed  amendment  to  the  Con- 
stitution goes  into  operation  upon  the  can- 
vass of  the  vote,  and  not  at  the  time  it 
is  cast,  under  a  statute  providing  that  if, 
upon  the  returns,  it  is  found  that  there  is  a 
majority  in  favor  of  it,  "the  same  shall  be 
deemed  and  taken  to  have  been  ratified," 
and  the  result  certified  to  the  governor,  who 
shall  proclaim  its  adoption,  although  the 
statute  authorizing  its  submission  provides 
that  if  a  majority  vote  for  the  amendment 
the  same  shall  be  deemed  and  taken  to  have 
been  ratified,  and  shall  be  valid  and  binding. 
State  V.  Kyle,  166  Mo.  287,  65  S.  W.  7f  3, 

56:  115 

23.  Under  Mich.  Const,  art.  20,  §  1,  pro- 
viding for  constitutional  amendments, 
which,  after  providing  for  a  submission  of  a 
proposed  amendment  to  popular  vote,  con- 
cludes by  stating  that,  if  ratified  by  the  re- 
quisite majority,  "the  amendment  shall  be- 
come part  of  the  Constitution,"  amendments 
take  eff'ect  from  the  time  of  their  ratifica- 
tion, notwithstanding  the  fact  that  the  next 
section  relating  to  constitutional  revision 
concludes  by  stating  that  all  "amendments 
shall  take  effect  at  the  commencement  of 
the  year  after  their  adoption."  Seneca  Min. 
Co.  V.  Secretary  of  State,  82  Mich.  573,  47 
N.  W.  25.  9:  770 

24.  Mich.  Pub.  Acts  1889,  No.  129,  author- 
izing the  extension  of  the  corporate  exist- 
ence of  a  mining  corporation  which  was 
originally  organized  for  a  period  of  thirty 
years,  having  been  passed  after  the  ratifica- 
tion of  the  constitutional  amendment 
authorizing  it,  is  valid  although  passed  be- 
fore the  beginning  of  the  year  after  the 
adoption  of  such  amendment.  Id. 
Effect  of;  repeal  of  existing  law. 

As  to  Self-Executing  Provisions  Generally, 
see  infra,  I,  a,  3,  c. 

See  also  infra,  93;  Criminal  Law,  141;  Stat- 
utes, .3.30,  577,  019. 

25.  If  the  lawmaking  power  goes  through 
the  form  of  enacting  a  law  which  it  is  pro- 
hibited by  the  Constitution  from  enacting, 
its    action   is    wholly   void,   and   cannot   be 


validated  by  the  subsequent  amendment  of 
the  Constitution  so  as  to  confer  authority 
upon  the  legislature  to  pass  such  a  law. 
Seneca  Min.  Co.  v.  Secretary  of  State,  82 
Mich.  573,  47  N.  W.  25,  9:  770 

26.  Appeals  pending  in  the  Louisiana 
court  of  appeals  when  the  Constitution  of 
1898  went  into  effect  were  entitled  to  con- 
sideration thereafter  under  the  provisions 
of  the  new  Constitution.  Cassard  v.  Tracy, 
52  La.  Ann.  835,  27  So.  368,  49:  272 

27.  A  constitutional  amendment  repeals 
existing  legislative  enactments  which  are  in- 
consistent with  it.  Fesler  v.  Brayton,  145 
Ind.  71,  44  N.  E.  37,  32:  578 

28.  Prior  laws  and  decisions  not  directly 
or  by  necessary  implication  dpnied  in  a  new 
Constitution  survive  with  full  force  and  ef- 
fect. Mauldin  v.  Greenville,  42  S.  C.  293, 
20  S.  E.  842,  27:  284 

29.  A  statute  providing  for  condemnation 
of  land  is  not  entirely  repealed,"  so  as  to  be 
incapable  of  a.mendment,  by  a  constitutional 
provision  which  renders  inoperative  the 
clauses  of  the  statute  relating  to  the  jury. 
Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Adams,  33 
Fla.  608,  15  So.  257,  24:  272 

30.  A  statute  requiring  a  county  and  city 
to  pay  a  percentage  of  liquor  license  fees 
to  a  certain  home  is  repealed,  but  not  retro- 
spectively repealed,  by  a  constitutional  pro- 
vision prohibiting  municipalities  from  mak- 
ing donations  to  a  private  corporation. 
Washingtonian  Home  v.  Chicago,  157  111.  414, 
41  N.  E.  893,  29:  798 

31.  A  statute  imposing  liability  upon  em- 
ployers for  injuries  caused  by  negligence  of 
fellow  servants,  which  is  applicable  to  do- 
mestic, but  not  to  foreign,  railroad  compan- 
ies, is  abrogated  by  the  adoption  of  a  Con- 
stitution providing  that  foreign  corporations 
shall  not  enjoy  greater  privileges  than  those 
enjoyed  by  domestic  corporations.  Criswell 
V.  Montana  C.  R.  Co.  18  Mont.  167,  44  Pac. 
525,  33:  554 

3.  Construction. 

a.  In  General. 

Meaning  of  "Ascertain,"  see  Corporations, 
550. 

By  Federal  Court,  State  Court  Following, 
see  Courts,  511,  514. 

Following  State  Decision  as  to,  see  Courts, 
531-533. 

Adopting  Construction  of  Court  of  Other 
State,  see  Courts,  497. 

Liberal  Construction  as  to  Compensation 
for  Taking  of  Land,  see  Eminent  Do- 
main, 203. 

Provision  as  to  Setting  Apart  Fines  for 
Literary  Fund,  see  Fines,  2,  3. 

As  to  Wife's  Power  to  Dispose  of  Property, 
see  Husband  and  Wife,  132. 

Construction  of  Adopted  Provision,  see  Stat- 
utes, 525. 

Mandatory  Provision  as  to  Passage  of  Stat- 
ute, see  Statutes,  2,  3,  14,  129,  142- 
144. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

32.  The   Bill   of  Rights   of   the   Nebraska 


CONSTITUTIONAL  LAW,  I.  a,  3. 


561 


Constitution  is  not  an  enumeration  of  all 
the  powers  reserved  to  the  people  of  the 
state.  State  ex  rel.  Smyth  v.  Moores,  55 
Neb.  480,  76  N.  W.  175,  41 :  624 

33.  A  law  may  be  within  the  inhibitions 
of  the  Constitution  as  well  by  implication 
as  by  expression.  Evansville  v.  State  ex  rel. 
Blend,  118  Ind.  426,  21  N.  E.  267,  4:  93 

34.  A  direction  of  the  Constitution  pre- 
vails over  a  direction  of  a  statute,  not  only 
when  the  statute  on  its  face  is  in  conflict 
with  the  constitutional  provision,  but  also 
where  no  such  conflict  appears  on  the  face 
ox  the  statute,  but  an  attempt  to  apply  the 
statute  to  a  given  state  of  facts  gives  rise 
to  a  violation  of  such  provision.  Cook 
Countv  V.  Chicago  Industrial  School  for 
GiriB,  'l25  111.  540,  18  N.  E.  183,  l97,      1 :  437 

35.  Every  constitution  is  to  be  interpreted 
in  the  light  of  its  own  history.  Maynard  v. 
Board  of  District  Canvassers,  84  Mich.  228, 
47N.  W.  756,  11:332 

36.  Constitutional  provisions  are  to  be  ex- 
pounded in  the  light  of  conditions  existing 
at  the  time  of  their  adoption,  with  former 
conditions  and  historical  facts  relating  to 
the  origin  of  the  political  institutions  of  the 
state  and  the  practice  under  them.  Fox  v. 
McDonald,  101  Ala.  51,  13  So.  416,      21 :  529 

37.  Constitutional  provisions  are  to  be 
construed  with  reference  to  prior  well- 
known  practices  and  usages.  .Johnston  v. 
State  ex  rel.  Sefton,  128  Ind.  16,  27  N.  E. 
422,  12:  235 

38.  Long  usage  and  practical  interpreta- 
tion cannot  control  in  the  interpretation  of 
the  Constitution  unless  the  language  is  ob- 
scure and  doubtful.  State  ex  rel.  Morris  v. 
Wrightson  (N.  J.  Sup.)  56  N.  J.  L.  126,  28 
Atl.  56,  22:  548 

39.  Continued  and  repeated  practice  of  the 
legislature,  unquestioned  for  more  than 
forty  years,  will  control  the  construction  of 
a  constitutional  provision  applicable  thereto 
when  the  court  is  in  doubt.  State  v.  Ger- 
hardt,  145  Ind.  439,  44  N.  E.  469,        33:  313 

40.  The  rule  of  construction  by  long  and 
continued  usage  should  be  applied  to  a  con- 
stitutional provision  only  in  cases  of  doubt. 
Pingree  v.  Dix,  120  Mich.  95,  78  N.  W.  1025, 

44:  679 

41.  The  rule  of  practical  construction  is  of 
no  value  in  construing  a  constitution  when 
it  is  plain  that  the  practice  has  been  in  open 
violation  of  that  instrument.  Parker  v. 
State  ex  rel.  Powell,  133  Ind.  178,  32  N.  E. 
836,  18:567 

42.  The  contemporaneous  interpretation 
of  a  constitution  by  those  who  had  oppor- 
tunity to  understand  the  intention  of  the 
instrument  has  a  strong  presumption  in  its 
favor.  State  ex  rel.  Guerguin  v.  McAllister, 
88  Tex.  284,  31  S.  W.  187,  28:  5^3 

43.  A  practical  construction  of  a  state 
Constitution  for  nearly  forty  years  will  be 
conclusive  of  its  meaning  when  that  would 
otherwise  be  doubtful.  French  v.  State  ex 
rel.  Harley,  141  Ind.  618,  41  N.  E.  2,   29:  113 

44.  A  legislative  interpretation  of  the 
Constitution,  long  established  and  acquiesced 
in,  is  of  great  force  in  determining  the  true 

L.R.A.  Dig.— 36. 


construction.     People    ex    rel.    Mooney    v. 
Hutchinson,  172  III.  486,  50  N.  E.  599, 

40:  770 

45.  The  passage  of  more  than  fifty  acts 
amending  special  charters  since  the  adop- 
tion of  Ind.  Const.  1851,  and  the  continued 
acquiescence  of  the  people  and  other  depart- 
ments of  the  state  government  therein,  has 
but  little,  if  any,  force  as  to  the  construc- 
tion of  the  Constitution  respecting  the  pow- 
er to  extend  the  term  of  corporate  existence, 
w'hen  only  four  statutes  have  purported  to 
do  that,  and  no  ease  of  that  kind  has  been . 
passed  upon  by  the  courts.  Bank  of  Com- 
merce V.  Wiltsie,  153  Ind.  460,  53  N.  E.  950, 

47:  489 

46.  A  long-continued  legislative  construc- 
tion of  R.  I.  Const,  art.  4,  §  17,  requiring  a 
bill  for  the  creation  of  a  corporation,  except 
for  certain  purposes,  to  be  continued  until 
another  election  of  members  of  the  general 
assembly,  with  public  notice  of  its  pendency, 
having  regarded  the  section  as  not  extending 
to  public  corporations,  and  the  section  hav- 
ing originated  in  fears  relating  to  private 
corporations,  the  court  regards  it  sufficiently 
doubtful  whether  such  section  relates  to  pub- 
lic corporations  so  that  it  will  not  declare  a 
statute  creating  a  public  corporation  uncon- 
stitutional because  it  was  enacted  without 
continuance  and  notice  under  that  section. 
State  V.  Narragansett,  16  R.  I.  424,  16  Atl. 
901,  3:  295 

47.  The  exercise  by  the  legislature  for  for- 
ty-five years,  with  the  acquiescence  by  the 
people,  of  the  power  to  regulate  corporations 
by  special  acts,  is  influential  in  determining 
the  construction  of  a  constitutional  provi- 
sion against  creating  corporations  by  special 
acts.  Indianapolis  v.  Navin,  151  Ind.  139. 
156,  47  N.  E.  525,  51  N.  E.  80.  41:  337 

48.  There  is  no  room  for  construction  of  a 
constitution  outside  of  the  words  them- 
selves, if  they  are  unambiguous;  and  the 
rules  as  to  the  authority  of  surrounding  cir- 
cumstances and  contemporaneous  exposition 
are  unimportant  in  such  cases.  State  ex  rel. 
Weiss  V.  Edgerton  School  Board,  76  Wis. 
177,  44  N.  W.  967.  7:  330 

49.  WTiere  the  language  of  a  constitution- 
al pi'ovision  is  plain  and  free  from  ambigui- 
ty, the  ordinary  signification  of  the  words 
employed  as  used  in  common  parlance,  must 
be  considered,  and  the  intent  of  the  provi- 
sion gathered  from  the  words  themselves, 
giving  to  them  their  usual  meaning  and  sig- 
nification. Powell  V.  Spackman,  7  Idaho. 
692,  65  Pae.  503,  54:  378 

50.  A  prior  construction  of  a  state  consti- 
tution will  be  regarded,  in  the  absence  of 
any  evidence  of  a  different  intent,  as  adopted 
by  a  re-enactment  of  the  same  language  in 
a  revision  of  the  constitution.  Sanders  v. 
St.  Louis  &  N.  0.  Anchor  Line.  97  Mo.  26. 
10  S.  W.  595,  3:  390 

51.  The  amendment  to  Md.  Const,  art.  7, 
§  1,  adopted  in  November,  1891,  providing 
for  the  election  of  county  commissioners, 
commencing  in  that  year,  and  prescribing 
their  term  of  office,  must  be  construed  to  be 
applicable  to  the  term  of  office  of  the  com- 
missioners chosen  at  that  election,  although 


662 


CONSTITUTIONAL  LAW,  I.  a,  8. 


the  amendment  did  not  apply  to  their  elec- 
tion. Worman  v.  Hagan,  78  Md.  152,  27 
Atl.  61C,  21:716 

52.  Debates  of  a  constitutional  convention 
although  they  may,  for  some  purposes,  but 
in  a  limited  degree,  be  consulted  in  interpret- 
ing a  doubtful  phrase  or  provision  of  the 
Constitution,  are  as  a  rule  deemed  an  unsafe 
guide.  Rasmussen  v.  Baker,  7  Wyo.  117,  50 
Pac,  819,  38:  773 

53.  The  re-enactment  of  the  New  York 
civil  service  law  after  the  adoption  of  the 
Constitution  of  1894  is  not  necessary  in  or- 
der to  make  it  applicable  to  the  department 
of  public  works,  to  which  it  could  not  apply 
under  the  Constitution  in  force  when  the  act 
was  passed,  as  the  new  Constitution  not 
only  adopts  the  principle  of  the  law,  but  de- 
clares "such  acts  of  the  legislature  .  .  . 
as  are  now  in  force  shall  be  and  continue 
the  law  of  this  state  subject  to  such  altera- 
tions as  the  legislature  sliall  make."  People 
ex  rel.  McClelland  v.  Roberts,  148  N.  Y.  3B0, 
42  N.  E.  1082,  31:  399 

54.  The  'New  York  Constitution  of  1777, 
being  adopted  before  the  Constitution  of  the 
United  States,  had  been  adopted,  is  a  result 
of  all  the  legislative  power  that  the  people 
of  the  state  could  exert  untrammeled  by 
any  higher  law.  Sage  v.  New  York,  154  N. 
y.  61,  47  N.  E.  1096,  38:606 

55.  When,  at  the  time  of  the  adoption  of  a 
constitutional  provision  in  one  state,  a  simi- 
lar provision  exists  in  several  other  states, 
the  courts  of  the  former  state  cannot  assume 
that  it  was  taken  from  any  particular  one 
of  other  states,  so  as  to  make  the  decisions 
of  the  courts  of  that  state  as  to  its  meaning 
binding  upon  fhem.  Voss  v.  Waterloo  Wat- 
er Co.  163  Ind.  69,  71  N.  E.  208,  66:  95 

56.  A  constitutional  provision  on  the  sub- 
ject of  usury  must  be  presumed  to  have  been 
adopted  with  reference  to  an  existing  cus- 
tom which  permitted  interest  to  be  taken  in 
advance.  Bank  of  Newport  v.  Cook,  60  Ark. 
288,  30  S.  W.  35,  29:  761 

57.  A  constitutional  provision  fixing  the 
time  and  mode  of  exercising  a  particular 
power  contains  a  necessary  implication 
against  anything  contrary  to  it.  People  ex 
rel.  Mooney  v.  Hutchinson,  172  111.  486, 
50  N.  E.  599,  40:  770 

58.  An  unwritten  theory  of  local  self-gov- 
ernment did  not  so  enter  into  the  provisions 
of  the  Constitution  of  Rhode  Island  as  to 
make  it  controlling  in  construing  those  pro- 
visions, although  Rhode  Island  had  its  ori- 
gin in  a  confederation  of  independent  towns. 
Newport  v.  Horton,  22  R.  I.  196,  47  Atl.  312, 

50:  330 

59.  A  declaration  in  the  Constitution  of 
political  privileges,  rights,  or  powers  to  be 
exercised  by  the  people  of  the  state  places 
them  beyond  legislative  control  or  interfer- 
ence as  eflectually  as  if  the  instrument  in 
terms  declared  that  the  people  should  not 
be  deprived  of  them  by  an  act  of  the  general 
assemblv.  Gemmer  v.  State  ex  rel.  Steph- 
ens. 163' Ind.  69,  71  N.  E.  478,  66:  82 

60.  A  constitutional  provision  prohibiting 
the  appropriation  of  private  property  for  a 
right  of  way  by  private  corporations  until 


compensation  has  been  made  or  ascertained 
and  paid  into  court  will,  if  necessary  to 
avoid  conflict  with  the  14th  Amendment  to 
the  Federal  Constitution,  be  held  to  be  equal- 
ly applicable  to  all  other  persons.    Steinhart 

V.  Mendocino  County  Super.  Ct.  137  Cal.  575, 
70   Pac.  629,  59:  404 

61.  The  written  Constitution  will  be  con- 
strued in  the  light  of  the  right  of  municipal 
self-government.  State  ex  rel.  White  v. 
Barker,  116  Iowa,  96,  89  N.  W.  204,      57:  244 

6.  Application  of  Federal  Constitution. 

As  to  Right  to  Jury  Trial,  see  Jury,  3. 
See  also  Internal  Revenue,  2. 

62.  Section  3  of  article  3,  and  Amendment 

VI.  of  the  Constitution  of  the  United  States, 
do  not  apply  to  proceedings  in  state  courts 
for  effenses  against  the  state.  Ex  parte  Mc- 
Neely,  36  W.  Va.  84,  14  S.  E.  436,       16:  226 

63.  U.  S.  Const.  5th  Amend,  does  not  ap- 
ply to  state  legislation.  State,  Curtis  v. 
Brown  &  S.  Mfg.  Co.  18  R.  I.  16,  25  Atl.  246, 

17 :  856 

64.  The  5th  Amendment  to  the  Constitu- 
tion of  the  United  States  is  a  restriction 
upon  the  legislative  functions  of  the  Federal 
government  and  not  of  a  state  government. 
Kimball  v.  Grantsville  City,  19  Utah,  368, 
57  Pac.  1,  45:  628 

65.  Articles  5  and  8  of  the  Amendments  to 
tlie  United  States  Constitution  have  no  ap- 
plication to  the  states.  People  ex  rel.  Brad- 
ley V.  Illinois  State  Reformatory,  148  111. 
413,  36  N.  E.  76,  23:  139 

66.  The  8th  Amendment  to  the  Federal 
Constitution  does  not  apply  to  the  states. 
Southern  Express  Co.  v.  Com.  ex  rel.  Walker, 
92  Va.  59,  22  S.  E.  809,  41:  436 

67.  The  provision  as  to  cruel  and  unusual 
punishment  in  U.  S.  Const.  8th  Amend,  has 
no  application  to  crimes  against  the  laws  of 
a  state.  Com.  v.  Murphy,  165  Mass.  66,  42 
N.  E.  504,  30:  734 

68.  No  restraints  on  the  police  power  by 
the  states  is  imposed  by  U.  S.  Const.  14th 
Amend.  State  v.  Schlenker,  112  Iowa,  642, 
84  N.  W.  698,  51:347 

69.  The  provision  of  the  14th  Amendment 
to  the  Federal  Constitution,  that  no  state 
shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citi- 
zens, does  not  undertake  to  confer  any  new 
rights  or  regulate  individual  rights,  but 
simply  prohibits  state  legislation.  Chilton 
v.  St.  Louis  &  L  M.  R.  Co.  114  Mo.  88,  21 
S.  W.  458,  19:  269 

70.  The  privileges  and  immunities  of  citi- 
zens protected  by  the  14th  Amendment  of 
the  Federal  Constitution  are  those  of  citizens 
of  the  United  States  merely,  and  not  those 
of  the  citizens  of  a  state.  [Case  affirmed  by 
equal  division.]  Peel  Splint  Coal  Co.  v. 
State,  36  W.  Va.  802,  15  S.  E.  1000,      17:  385 

71.  The  guaranty  of  equal  privileges  and 
immunities  to  citizens  of  the  United  States 
by  the  14th  Amendment  of  the  Federal  Con- 
stitution does  not  limit  the  power  of  the 
state  government  over  the  rights  of  its  own 
citizens.  Holden  v.  Hardy,  14  Utah,  71,  46 
Pac.  756,  37:  103 


CONSTITUTIONAL  LAW.  I.  a.  3. 


663 


f  AfTd  by  the  Supreme  Court  of  the  United 
States  in  169  U.  S.  366,  42  L.  ed.  780,  18 
Sup.  Ct.  Rep.  383.] 

72.  The  provision  of  the  United  States 
Constitution  for  a  jury  trial  in  suits  at  com- 
mon law  does  not  apply  to  state  courts. 
Hall  V.  Armstrong,  65  Vt.  421,  26  Atl.  592, 

20:  366 

c.  Self -Executing  Provisions; 

As  to  Carrier's  Rates,  see  Carriers,  1128. 
Self-Executing  Provisions  of  City  Charter, 

see  Municipal  Corporations,  39. 
See  also  supra,  25-31. 
For  Editorial  Notes,  see  infra.  III.  §  3. 

73.  A  legislative  adoption  of  the  exact 
language  of  a  constitutional  provision,  omit- 
ting only  a  clause  as  to  the  right  of  the 
legislature  to  make  an  extension  of  the  pro- 
vision, does  not  make  a  legislative  construc- 
tion of  the  article  to  the  effect  that  it  is  not 
self-executing.  Illinois  C.  R.  Co.  v.  Ihlen- 
berg,  75  Fed.  873,  43  U.  S.  App.  726,  21  C. 
C.  A.  546,  34:  393 

74.  Whether  or  not  a  constitutional  pro- 
vision is  self-executing  is  a  question  always 
of  intention,  to  be  determined  by  the  lan- 
guage used  and  the  surrounding  circum- 
stances. Id. 

75.  Legislation  is  not  necessary  to  enable 
the  courts  to  enforce  the  constitutional  pro- 
vision guaranteeing  the  right  to  enjoy  and 
defend  life  and  liberty,  and  to  acquire,  pos.- 
sess,  and  protect  property.  Erdman  v.  Mit- 
chell, 207  Pa.  79,  56  Atl.  327,  63:  534 
As  to  injuries  to  employees. 

See  also  supra,  31. 

76.  A  self-executing  mandate  is  made  by 
Miss.  Const.  §  193,  providing  that  "knowl- 
edge by  any  employee  injured  of  the  defect- 
ive or  unsafe  character  or  condition  of  any 
machinery,  ways,  or  appliances,  shall  be  no 
defense  to  an  action  for  injury  caused  there- 
by," with  an  exception  as  to  conductors  or 
engineers.  Illinois  C.  R.  Co.  v.  Ihlenberg,  75 
Fed.  873,  43  U.  S.  App.  726,  21  C.  C.  A.  546, 

34:  393 
As  to  matters  of  eminent  domain. 
For  Editorial  Notes,  see  infra.  III.  §  3. 

77.  The  constitutional  provision  that  pri- 
vate property  shall  not  be  taken  or  damaged 
for  public  use  without  compensation  must 
be  held  to  be  self-enforcing;  and  a  court  of 
equity  may  enjoin  one  who  proposes  contin- 
uously to  damage  private  property  for  a 
public  use  without  first  making  compensa- 
tion, although  no  statute  has  been  enacted 
prescribing  the  manner  in  which  the  amount 
of  compensation  shall  be  ascertained  and 
paid  in  such  cases.  Kansas  City,  St.  J.  & 
C.  B.  R.  Co.  V.  St.  Joseph  Terminal  R.  Co. 
97  Mo.  457,  10  S.  W.  826,  3:  240 

78.  A  constitutional  provision  against  tak- 
ing or  damaging  property  for  public  use 
without  just  compensation  is  self-executing. 
Searle  v.  Lead,  10  S.  D.  312,  73  >J.  \\.   101, 

39:  345 
pTickman  v.  Kansas  City,  120  Mo.  110,  25  S. 
W.  225,  23:  658 


As  to  ofiScers;  civil  service. 

79.  A  self-executing  constitutional  provi- 
sion which  does  not  require  legislation  to 
give  ir.  effect  is  made  in  Wash.  Const,  art.  4, 
§  10,  providiAg  that  justices  of  the  peace 
shall  receive  a  salary,  instead  of  fees,  in  in- 
corporated cities  or  towns  having  more  than 
5,000  inhabitants.  Anderson  v,  Whatcom 
County,  15  Wash.  47,  45  Pac.  665,      33:  137 

80.  The  self-executing  mandate  of  N.  Y. 
Const.  1894,  art.  5,  §  9,  declaring  that  civil 
service  appointments  "shall  be  made  accord- 
ing to  merit  and  fitness,  to  be  ascertained  so 
far  as  practicable  by  examinations,  which,  so 
far  as  practicable,  shall  be  competitive,"  re- 
quires the  courts  in  a  proper  ease  to  pro- 
nounce appointments  made  without  compli- 
ance with  its  requirements  illegal.  People 
ex  rel.  McClelland  v.  Roberts,  148  N.  Y.  360, 
42N.  E.  1082,  31:399 

81.  The  provision  of  the  Constitution,  that 
the  fitness  of  persons  to  be  appointed  to 
official  positions  shall  De  ascertained,  so  far 
as  practicable,  by  examinations  which,  so 
far  as  practicable,  shall  be  competitive,  is 
not  self-executing,  but  requires  legislation 
for  its  enforcement.  Chittenden  v.  Wurster, 
152  N.  Y.  345,  46  N.  E.  857,  37:  809 
As  to  use  of  public  money. 

Provision  for  Appropriation,  see  Appropria- 
tions, 10. 
See  also  Public  Moneys,  60. 
For  Editorial  Notes,  see  infra.  III.  §  3. 

82.  A  constitutional  prohibition  against 
appropriating  money  or  property  of  the  state 
for  the  benefit  of  sectarian  or  religious  so- 
cieties, institutions,  or  schools,  is  self-exe- 
cuting, and  makes  inoperative  an  existing 
statute  which  is  repugnant  thereto.  Synod 
of  Dakota  v.  State,  2  S.  D.  366,  50  N.  W. 
632,  14:  418 

83.  The  provision  of  the  Illinois  Constitu- 
tion preventing  municipalities  from  making 
donations  to  private  corporations  is  self-exe- 
cuting, and  operated  as  paramount  law  from 
the  adoption  of  the  Constitution.  Wash- 
ingtonian  Home  v.  Chicago,  157  111.  414,  41 
N.  E.  893,  29:  798 
As  to  municipal  indebtedness. 

84.  No  formal  assignment  of  a  city  to  the 
class  to  which  it  belongs  is  necessary  to 
make  operative  a  constitutional  provision 
limiting  the  amount  of  indebtedness  of  the 
city  according  to  its  classification  on  popu- 
lation. Beard  v.  Hopkinsville,  95  Kv.  239, 
24  S.  W.  872,  •  23:  402 
As  to  corporations. 

For  Editorial  Notes,  see  intra,  ITT.   §  3. 

85.  The  provision  of  the  Kansas  Constitu- 
tion, that  dues  from  corporations  shall  be  se- 
cured by  inuividual  liability  of  stockhold- 
ers to  an  amount  equal  to  the  stock  owned, 
and  such  other  means  as  shall  be  provided  by 
law,  is  not  self-executing.  Bell  v.  Farwell, ' 
176  111.  489,  52  N.  E.  346,  42:804 

86.  The  provision  of  Minn.  Const,  art.  10, 
§  3,  that  "each  stockholder  in  any  corpora- 
tion (excepting  those  organized  for  the  pur- 
pose of  carrying  on  any  kind  of  manufactur- 
ing or  mechanical  business)  shall  be  liable 
to  the  amount  of  stock  held  or  owned  by 
him,"  is  self-executing,  and  creates  an  indi- 


564 


CONSTITUTIONAL  LAW,  b,.  L 


vidual  liability  on  the  part  of  the  stockhold- 
er for  corporate  debts  to  an  amount  equal  to 
the  amount  of  stock  held  or  owned  by  him. 
Willis  V.  St.  Paul  Sanitation  Co.  48  ilinn. 
140,  50  N.  W.  1110,  16:281 

87.  The  provision  of  Kan.  Const,  art.  12. 
§  2,  that  dues  from  corporations  shall  be  se- 
cured by  individual  liability  of  stockholders 
to  an  additional  amount  equal  to  the  stock 
owned  by  each  stockholder,  and  such  "other 
means  as  shall  be  provided  by  law,"  is  not 
self- executing.  Tuttle  v.  National  Bank  of 
the  Republic,  161  111.  497,  44  N.  E.  984, 

34:  750 
Marshall  v.  Sherman,  148  N.  Y.  9,  44  X.  E. 
419,  34:  757 

88.  No  legislation  is  necessary  to  the  oper- 
ation of  Ga.  Const,  art.  4,  §  2.  ^  4  (Civ.  Code, 
§  5800) ,  prohibiting  the  legislature  from  au- 
thorizing a  corporation  to  buy  stock  or 
shares  in  another  company  or  maKe  any  con- 
tracts with  it,  when  the  effect  will  be  to 
create  a  monopoly  or  lessen  competition, 
since  this  provision  is  simply  the  embodi- 
ment of  a  principle  of  the  common  law. 
Trust  Companv  of  Georgia  v.  State,  109  Ga. 
736,  35  S.  E.  323,  48:  520 

89.  A  constitutional  provision  that  no  for- 
eign corporation  shall  do  business  except 
while  it  has  a  known  place  of  business  and 
an  authorized  agent  in  the  state  is  not  self- 
executing  without  any  provision  as  to  how 
the  agent  shall  be  designated  or  the  place  of 
business  made  known.  St.  Louis,  A.  &  T. 
R.  Co.  V.  Philadelphia  Fire  Asso.  60  Ark. 
325,  30  S.  W.  350,  28:  83 
As  to  taxes. 

For  Editorial  Notes,  see  infra,  III.  §  3. 

90.  The  provision  that  all  property  not 
exempt  shall  be  "taxed  in  proportion  to  its 
value,  to  be  ascertained  as  provided  hj  law," 
which  appears  in  Cal.  Const,  art.  13,  §  1,  is 
not  self-executing.  McHenry  v.  Downer.  116 
Cal.  20,  47  Pac.  779,  45:737 

91.  A  constitutional  provision  that  the 
legislature  "shall  provide  by  law  for  a  uni- 
form and  equal  rate  of  assessment  and  tax- 
ation, and  shall  prescribe  such  regulations 
as  shall  secure  a  just  valuation"  is  not  self- 
executing,  but  requires  appropriate  legisla- 
tion to  carrv  it  into  effect.  State  Bd.  of  Tax 
Oomrs.  V.  Hollidav.  150  Ind.  216.  49  N.  E.  14, 

42:  826 

92.  The  constitutional  requirement  as  to 
taxation  of  property  is  not  self -executing, 
and  a  tax  cannot  be  laid  unless  the  legisla- 
ture selects  the  particular  species  of  proper- 
ty to  bear  the  burden  of  it.  Hart  v.  Smith, \ 
159  Ind.  182,  64  N.  E.  661,  58:  949 

93.  The  constitutional  provision  that  the 
general  assembly  shall  levy  a  capitation  tax 
equal  to  the  tax  on  property  valued  at  $300 
does  not  by  its  own  force  overrule  a  different 
ratio  fixed  by  statute,  and  adjust  the  equa- 
tion of  the  taxes  so  as  to  correct  the  uncon- 
stitutional statute.  Russoll  v.  Aver,  120  N. 
C.  180,27  S.  E.  133,  37:  246 
As  to  criminal  matters. 

94.  A  constitutional  amendment  that  no 
person  shall  be  prosecuted  criminally  for 
felony  or  misdemeanor  otherwise  than  by 
indictment  or  information  is  self-opcratini,' 


from  the  time  it  takes  effect.    State  v.  Kyle, 
166  Mo.  287,  65  S.  W.  763,  56:115 

b.  Ex  Post  Facto  and  Retrospective  Laws. 

1.  Ex  Post  Facto  Laws. 

For  Editorial  Notes,  see  infra.  III.  §  15. 

05.  An  ex  post  facto  law  is  one  which  will 
increase  the  penalty  or  deprive  a  party  of 
substantial  rights  or  privileges  to  which  he 
was  entitled  as  the  law  stood  when  the  of- 
fense was  committed.  Murphy  v.  Com.  172 
IVIass.  264,  52  N.  E.  505,  43:  154 

96.  A  statute  which  alters  or  may  alter  in 
a  substantial  manner  the  positions  of  those 
committing  offenses  prior  to  its  passage  is 
unconstitutional  as  to  such  an  offense,  even 
if  it  is  possible  that  in  that  particular  case 
it  might  operate  more  beneficially  than  the 
prior  law  would  have  operated.  Id. 

97.  An  act  is  not  ex  post  facto  as  to  prior 
crimes,  merely  because  it  continues  in  force 
laws  existing  when  sucli  crimes  were  com- 
mitted, and  which  would  cease  to  be  opera- 
tive if  not  kept  alive  by  that  act.  Ex  parte 
Larkins,  1  Okla.  53,  25  Pac.  745,         11:  418 

98.  The  adoption  of  a  law  authorizing  the 
prosecution  of  crimes  already  committed,  by- 
information,  is  not  forbidden  by  the  consti- 
tutional provisions  against  ex  post  facto 
laws.  State  v.  Kyle,  166  ]\fo.  287,  65  S.  W. 
763,  56:  115 
Procedure  generally. 

99.  A  mere  change  in  the  mode  of  trial, 
without  changing  the  nature  of  the  offense 
or  its  constituent  elements,  or  the  nature  or 
amount  of  evidence  necessary  to  prove  the 
charge,  or  altering  the  punishment,  is  not  an 
ex  post  facto  law.  Anderson  v.  O'Donnell,  29 
S.  C.  355,  7  S.  E.  523,  1 :  632 

100.  A  statute  changing  the  mode  of  pro- 
cedure in  criminal  cases  from  indictment  to 
information  is  not  ex  post  facto  as  applied 
to  offenses  committed  before  its  passage, 
and  takes  away  no  substantial  right  of  an 
accused.  Re  Wright,  3  Wyo.  478,  27  Pac. 
748,  13:  748 

101.  A  statute  is  not  an  ex  post  facto  law 
because  it  abrogates  the  provision  existing 
when  an  offense  was  committed,  that  the 
accused  may  secure  a  change  of  magistrate 
or  place  of  preliminary  examination  upon 
his  affidavit  of  belief  of  the  prejudice  of  the 
magistrate  before  whom  he  is  brought  for 
examination.  People  ex  rel.  Chandler  v.  Mc- 
Donald, 5  W>o.  526,  42  Pac.  15,  29:  834 

102.  A  statute  transferring  jurisdiction 
from  one  court  to  another  is  not  such  an 
ex  post  facto  law  as  will  forbid  the  new 
tribunal  from  taking  jurisdiction  of  an  of- 
fense committed  prior  to  the  statute.  State 
v.   Cooler,*  30  S.   C.   105,   8  S.   E.   692, 

3:  181 
Number  of  jurors. 

103.  Changes  in  constitutional  provisions 
bj-  which  a  grand  jury  may  consist  of  twelve 
instead  of  sixteen,  and  a  petit  jury  of  twelve 
need  not  all  agree  to  find  a  verdict,  relate 
to  methods  of  procedure  only,  and  are  in  no 
sense  ex  post  facto  in  character,  as  applied 


CONSTITUTIONAL  LAW,  I.  b,  2. 


565 


to  crimes  previously  committed.     State  v.  ' 
Caldwell,  50  La.  Ann.  666,  23  So.  869, 

41:  718 

104.  The  provision  of  Utah  Const,  art.  1, 
§  10,  that  in  courts  of  general  jurisdiction, 
except  in  capital  cases,"  a  jury  shall  consist 
of  eight  jurors,  applies  to  a  prosecution  for 
an  offense  committed  before  the  adoption 
of  the  Constitution,  as  it  affects  the  proced- 
ure merely,  and  in  that  view  is  not  ex  post 
facto  when  applied  to  past  offenses.  State 
V.  Bates,  14  Utah,  293,  47  Pac.  78,  43:  33 
Extent  or  severity  of  punishment. 

See  also  supra,  95;  infra,  116. 

For  Editorial  Notes,  see  infra.  III.  §  15. 

105.  A  change  in  a  statute  by  leaving  out 
the  minimum  limitation  of  the  term  of  im- 
prisonment for  a  crime,  so  that  "Ishe  punish- 
ment may  be  for  a  lessj  but  cannot  be  for  a 
greater,  term  than  before,  cannot  be  regard- 
ed as  an  ese  post  facto  law.  People  v.  Hayes, 
140  N.  Y.  484,  35  N.  E.  951,  23:  830 

106.  The  duration  of  a  sentence  is  not  un- 
certain, and  the  determination  of  the  term 
of  imprisonment  is  not  taken  from  the 
courts,  so  as  to  make  the  act  ex  post  facto 
as  applied  to  an  offense  previously  commit- 
ted, merely  because  it  provides  for  a  sen- 
tence that  is  indeterminate  between  a  maxi- 
mum and  minimum,  and  gives  the  prison 
commissioners,  after  the  minimum  term, 
power  to  release  the  prisoner  on  a  permit 
approved  by  the  governor  and  council.  Mur- 
phy V.  Com.  172  Mass.  264,  52  N.  E.  505, 

43:  154 

107.  A  statute  denying  to  convicts  under 
sentence  for  a  second  offense  the  same  re- 
ductions from  their  sentence  for  good  behav- 
ior that  are  allowed  to  other  convicts  is  not 
ex  post  facto  as  applied  to  the  punishment 
of  an  offense  subsequently  committed,  al- 
though the  offender  had  been  convicted  of 
his  first  offense  before  the  passage  of  the 
act.    Re  Miller,  110  Mich.  676,  68  N.  W.  990. 

34:  398 

108.  Deductions  for  good  conduct  and  per- 
mits to  be  at  liberty,  to  which  prisoners  who 
were  convicted  of  offenses  committed  when 
Mass.  Stat.  1880,  chap.  218,  and  Mass.  Pub. 
Stat.  chap.  222,  §  20,  were  in  force,  are  en- 
titled as  of  right  rather  than  by  favor,  for 
faithfuj  observance  of  the  rules  and  for  not 
having  been  subjected  to  punishment,  con- 
stitute rights  which  cannot  be  taken  away 
or  interfered  with  to  their  disadvantage  by 
subsequent  legislation.  Murphy  v.  Com.  172 
Mass.  264,  52  N.  E.   505,  43:  154 

109.  A  statute  requiring  the  approval  of 
the  governor  and  council  to  a  permit  for 
the  release  of  a  convict  after  the  expiration 
of  the  minimum  term  of  his  sentence  is  not 
an  ex  post  facto  law,  but  relates  merely  to  a 
matter  of  procedure.  Id. 

110.  A  statute  designating  one  who  is  con- 
victed of  a  felony  after  having  been  convict- 
ed of  two  others,  an  habitual  criminal,  and 
subjecting  him  to  long  imprisonment  as 
such,  is  not  ex  post  facto,  although  by  its 
terms  it  may  be  enforced  against  one  whose 
former  convictions  occurred  before  its  pass- 
age. Com.  V.  Graves,  155  Mass.  163,  29  N. 
E.  579,  16:  256 


111.  A  law  substituting  the  state  peniten- 
tiary for  the  county  jail  as  the  place  of  con- 
finement and  execution  of  persons  sentenced 
to  be  hanged  is  not  invalid  as  an  ex  post 
facto  law  in  respect  to  crimes  already  com- 
mitted. The  fact  that  the  confinement  is 
designated  as  solitary  is  unimportant  where 
the  statute  in  fact  gives  the  prisoner  as 
many  liberties  as  the  former  one.  Re  Tyson, 
13  Colo.  482,  20  Pac.  810,  6:  472 

112.  A  law  shortening  the  time  between 
sentence  and  execution  of  a  person  con- 
demned to  death  is  void  as  to  previous  of- 
fenses as  an  ex  post  facto  law.  Id. 
Disfranchisement. 

113.  The  disfranchisement  of  certain 
classes  of  persons  by  a  constitutional  pro- 
vision is  not  a  punishment  for  crime,  and 
therefore  does  not  make  such  provision  an 
ex  post  facto  law.  Boyd  v.  Mills,  53  Kan. 
594,  37  Pac.  16,  25:  486 

2.  Retrospective  Laws. 

a.  In  General. 

As  to  Survival  of  Pending  Action,  see  Abate- 
ment and  Revival,  23. 

As  to  When  Statutes  are  Retrospective,  see 
Statutes,  II.  d. 

Change  in  Statute  of  Limitation,  see  Limi- 
tation of  Actions,  I.  a. 

Making  City  Liable  for  Debts  of  Previous 
Corporation,  see  Municipal  Corporations, 
36. 

See  also  supra,  30. 

114-115.  A  statute  excluding  nonresidents 
of  the  state  from  the  benefit  of  a  statute  of 
limitations,  when  the  cause  of  action  arose 
in  the  state  and  the  defendant  subsequently 
ceased  to  be  a  resident  thereof,  is  not  uncon- 
stitutional as  applied  to  pre-existing  obliga- 
tions. Bates  V.  CuUum,  177  Pa.  633,  35  Atl. 
861,  34:  440 

116.  A  statute  allowing  punitive  or  exem- 
plary damages  in  a  case  in  which  the  right 
thereto  did  not  previously  exist  is,  so  far  as 
it  applies  to  existing  causes  of  action,  a  vio- 
lation of  constitutional  prohibitions  of  ex 
post  facto  laws  and  retrospective  legislation. 
French  v.  Dane,   19  Colo.  504,  36  Pac.   60!). 

24:  387 

117.  New  York  act  May  12,  1871,  amend- 
ing the  4th  section  of  the  town  bonding  act 
of  1869  so  as  to  permit  the  issuance  of  bonds 
payable  at  any  time  the  commissioners  may 
elect  less  than  thirty  years,  which  was  the 
period  prescribed  by  the  original  section,  is 
not  unconstitutional  as  applied  to  bonds  is- 
sued and  delivered  after  its  passage,  but 
based  upon  the  consent  of  the  taxpayers  of 
the  town  given  before  its  passage.  Brownell 
V.  Greenwich,  114  N.  Y.  518,  22  N.  E.  24, 

4:  685 

118.  The  provisions  of  the  South  Dakota 
state  Constitution,  prescribing  the  form  and 
method  of  passing  appropriation  bills,  refer 
only  to  future  legislation,  or  legislation  un- 
der'the  Constitution.  Cutting  v.  Taylor,  3 
S.  D.  11,  51  N.  W.  949,  15:  691 


566 


CONSTITUTIONAL  LAW,  L  b,  3. 


119.  An  attachment  lien — at  least  until  a 
final  judgment  is  entered  in  the  case — may 
be  impaired,  displaced,  or  destroyed  by  legis- 
lative enactments,  in  the  absence  of  any 
prohibition  of  retroactive  or  retrospective 
laws.  Evans-Snider-Buel  Ck).  v.  McFadden, 
44  C.  C.  A.  494,  105  J<'ed.  293,  58:  900 

120.  An  act  providing  that  improvements 
made  by  a  purchaser  of  property  or  his  gran- 
tor, in  good  faith,  may  be  set  off  against  the 
rents  and  profits  in  an  action  by  the  holder 
of  the  legal  title  to  recover  the  land  (Ga. 
acts  1897,  pp.  79-81),  although  applying  to 
improvements  erected  prior  to  its  passage, 
is  not  in  violation  of  Ga.  Const,  art.  1,  ^  2, 
§  3,  prohibiting  the  passage  of  retroactive 
laws,  since  this  provision  is  aimed  only  at 
such  retrospective  legislation  as  injuriously 
affects  the  rights  of  citizens,  and  does  not 
forbid  retroactive  legislation  which  is  reme- 
dial simply  in  its  nature.  Mills  v.  Geer,  111 
(^,a.  275,  36  S.  E.  673,  52:  934 

121.  A  statute  declaring  that  taxes  which 
were  not  lawfully  due  shall  be  deemed  to 
have  been  involuntarily  paid  when  the  pay- 
ments were  made  on  returns  made  on  blanks 
and  under  instructions  received  from  the  tax 
officers  is  in  conflict  with  a  constitutional 
provision  against  retroactive  laws,  where  the 
latter,  at  the  time  the  payments  were  made, 
regarded  them  as  voluntary,  and  did  not  give 
any  right  to  recover  them  back.  Hamiton 
Countv  V.  Rasche,  50  Ohio  St.  103,  33  N.  E. 
408,     '  19:584 

6.  Curative  Acts. 

Curing  Defective  Acknowledgment,  see  infra, 
1137,  1191;   Acknowledgment,  IV. 

Validating  County  Warrants,  see  Counties, 
58. 

Curine  Defect  in  Foreclosure,  see  Mortgage, 
173. 

Special  Legislation  by,  see  Statutes,  331. 

Sufficiency  of  Title,  see  Statutes,  185,  191. 

Amendment  of  Statute  to  Cure  Unconstitu- 
tionality, see  Statutes,  606-608. 

See  also  infra,  137,  871;  Legislature,  20. 

For  Editorial  Notes,  see  infra.  III.  §§  2,  ,14. 

122.  An  unconstitutional  act  can  under  no 
circumstances  be  validated  by  the  legisla- 
ture. State  ex  rel.  Charleston,  C.  &  C.  R. 
Co.  V.  Whitesides,  30  S.  C.  579,  9  S.  E.  661, 

3:  777 
122a.  It  is  immaterial  whether  Ballinger's 
(Wash.)  Anno.  Codes  &  Stat.  §  5433  (2  Hill's 
Anno.  Stat.  &  Codes,  §  268),  providing  for  an 
injunction  against  the  malicious  erection  or 
maintenance  of  any  structure  intended  to 
spite  a  neighbor,  was  or  was  not  invalid  for 
defect  in  its  title,  since  Wash,  act  1883,  of 
which  it  is  a  part,  was  expressly  ratified 
and  confirmed  bv  act  of  Congress  of  July, 
1884  (23  Stat,  at  L.  122,  chan.  226).  Kar- 
asek  V.  Peier,  22  Wash.  419.  61  Pac.  33. 

50:  345 

123.  An  amendment  to  a  statute  prohibit- 
ing a  person  from  practising  medicine  with- 
out a  license,  whicli  provides  that  it  shall 
not  apply  to  physicians  who  have  a  diploma 
from  a  regular  medical  college,  cannot  make 


valid  a  contract  made  before  the  passing  of 
the  amendment  to  pay  for  the  services  of 
an  unlicensed  physician  who  had  such  a 
diploma,  which  contract  was  void  in  its  in- 
ception. Puckett  V.  Alexander,  102  JS.  C.  95, 
8  S.  E.  767,  .  3:43 

124.  A  receipt  which  was  void  for  uncer- 
tainty as  a  contract  for  land  cannot  be 
made  valid  by  a  subsequent  statute  allowing 
parol  testimonv  to  identify  the  land.  Lowe 
V.  Harris,  112  N.  C.  472,  17  S.  E.  539, 

22:  379 
As  to  corporations. 
For  Editorial  Notes,  see  infra,  III.  §  14. 

125.  A  special  act  recognizing  a  corpora- 
tion as  a  valid,  existing  one,  and  authorizing 
it  to  exercise  corporate  rights,  cures  all  char- 
ter defects  in  its  original  certificate  of  or- 
ganization. Koch  v.  North  Ave.  R.  Co.  75 
Md.  222,  23  Atl.  463,  15:  377 

126.  The  illegality  of  corporate  acts  be- 
cause of  the  invalidity  of  the  act  of  incor- 
poration is  cured  by  a  statute  which  recog- 
nizes the  corporate  existence  of  the  company 
by  amending  its  charter,  and  also  recognizes 
its  right  to  substitute  stone  or  gravel  for 
plank  upon  a  road  already  constructed. 
Snell  V.  Chicago,  133  111.  413,  24  N.  E.  532, 

8:  858 
As  to  marriage. 

127.  A  marriage  void  in  toto  at  the  time 
it  is  made  cannot  be  made  valid  by  a  sub- 
sequent statute,  so  as  to  impose  upon  the 
husband  the  burden  of  alimony.  Stewart  v. 
Vandervort,  34  W.  Va.  524,  12  S.  E.  706, 

12:  50 
Acknowledgments. 
For  Editorial  Notes,  see  infra,  III.  §  14. 

128.  A  legislature  has  power,  in  the  ab- 
sence of  any  inhibiting  constitutional  limita- 
tion, and  except  as  against  prior  vested 
rights,  to  cure  by  retroactive  legislation  de- 
fective acknowledgments  of  deeds,  in  all 
eases  where  the  purpose  of  the  acknowledg- 
ment is  the  admission  of  the  instrument  ac- 
knowledged to  record,  or  its  use  in  evidence. 
Summer  v.  Mitchell,  29  Fla.  179,  10  So.  562, 

14:  815 
Judgments. 

129.  The  lawmaking  power  cannot  vali- 
date void  judgments.  Re  Christensen's  Es- 
tate. 17  Utah.  412.  53  Pac.  1003.  41:  504 

130.  A  judgment  may  be  validated  by  the 
legislature  if  rendered  by  a  court  with  juris- 
diction of  the  subject-matter  and  the  person, 
and  its  invalidity  is  due  to  the  omission  of 
some  essential  step  which  the  legislature  has 
a  right  to  dispense  with.  Id. 
Judicial  sale. 

131.  The  legislature  has  no  power  to  vali- 
date, by  retroactive  legislation,  a  judicial 
sale  of  real  estate  which  was  void  for  want 
of  jurisdiction  in  the  court  to  make  it;  at 
least,  not  without  making  provision  for 
compensating  the  ownersS  of  the  property. 
Roche  V.  Waters,  72  Md.  264,   19  Atl.  535, 

7:  533 
Taxes  and  assessments. 

Effect  of  Curative   Act  to  Prevent  Bar  of 
Prior  Judgment,   see  Judgment,  206. 

132.  A  retroactive  amendment  curing  a  de- 
fect in  a  collateral  inheritance  tax  law,  by 


CONSTITUTIONAL  LAW,  I.  c. 


5«7 


making  necessary  provision  for  notice  of  the 
proceedings  for  ascertaining  the  amount  of 
the  tax,  is  valid  and  operative  as  to  the  es- 
tate of  a  person  who  died  before  the  amend- 
ment,— at  least  so  far  as  it  applies  to  such 
personal  property  as  may  not  yet  be  distrib- 
uted. Ferry  v.  Campbell,  110  Iowa,  290,  81 
N.  W.  604,  '  50:  92 

132a.  Where  local  improvements  to  pay 
for  which  the  legislature  had  power  to  au- 
thorize an  assessment  upon  adjoining  prop- 
erty owners  are  made  by  a  city  under  au- 
thority of  an  act  which  is  subsequently  de- 
clared unconstitutional,  it  is  competent  for 
the  legislature  to  pass  an  act  authorizing  a 
reassessment  to  meet  the  cost  of  such  im- 
provements. Che.ster  v.  Black,  132  Pa.  568, 
19  Atl.  276,  \         6:  802 

132b.  Where  the  act  of  a  county  board  of 
supervisors  in  estabishing  a  levee  has  been 
declared  void  for  want  of  jurisdiction  be- 
cause there  was  no  petition  signed  by  a  ma- 
jority of  residents  owning  lands  adjoining 
the  improvement,  setting  forth  the  same, 
and  the  starting  point,  route,  and  termini,  a 
curative  act  rendering  the  proceedings  valid, 
and  authorizing  an  assessment  therefor, 
after  prescribed  notice,  is  valid  and  enforce- 
able, as  the  requisite  petition,  the  thing 
wanting,  could  have  been  dispensed  with  by 
the  legislature  in  the  first  instance,  and 
therefore  can  be  subsequently  dispensed 
with.  Richman  v.  Muscatine  Countv,  77 
Iowa,  513,  42  N.  W.  422,  4:  445 

Usury. 
For  Editorial  Notes,  see  infra.  III.  §  14. 

133.  A  statute  relieving  from  the  imputa- 
tion of  usury  all  contracts  made  by  a  biiild- 
ing  and  loan  association  under  a  charter  of 
doubtful  validity  is-  not  unconstitutional  as 
to  those  contracts  because  it  is  retroactive. 
Smoot  v.  People's  Perpetual  Loan  &  B.  Asso. 
95  Va.  686,  29  S.  E.  746,  41:  589 

134.  An  expository  statute  which  declares 
that  premiums,  fines,  or  stock  taken  to  rep- 
resent premiums  for  loans  made  by  any 
building  and  loan  association,  shall  not  be 
treated  as  interest,  but  shall  be  collected  as 
debts,  is  invalid  as  applied  to  past  transac- 
tions which,  under  the  construction  given  by 
the  courts  to  the  previous  laws,  were  usur- 
ious. Lindsav  v.  Llnited  States  Sav.  &  L. 
Co.    120  Ala. '156,  24  So.  171,  42:783 

135.  A  curative  act  which  merely  takes 
away  the  privilege  of  pleading  usury  does 
not  change  the  agreement,  but  only  removes 
a  bar  lo  its  enforcement,  and  is  not  an  un- 
constitutional impairment  of  a  vested  right. 
Towa  Sav.  &  L.  Asso.  v.  Heidt,  107  Iowa,  297, 
77  X.  W.  1050,  43:  689 
Trusts. 

136.  An  indefinite  unenforceable  trust  un- 
der the  will  of  a  person  who  died  before  N. 
V.  Laws  1893,  ch.ap.  701,  took  eff"ect,  is  not 
made  valid  by  that  statute,  since  the  legis- 
lature could  not  change  vested  rights  in  the 
property.  People  v.  Powers.  147  N.  Y.  104, 
41  N.  E.  432,  35:  502 

c.    Vested  Rights. 

As  to  Impairing  Obligation  of  Contracts,  see 
infra,  II.  g.    • 


Of  Foreign  Insurance  Company,  see  Insur- 
ance, 47. 

By  License  to  Sell  Liquor,  see  Intoxicating 
Liquors,   86. 

In  Authority  of  Officers,  see  Municipal  Cor- 
porations, 60. 

In  Right  to  Acquire  Tide  Lands,  see  Waters, 
97. 

In  Future  Accretions,  see  Waters,  167. 

In  Waters,  see  Waters,  309,  320,  324,  349. 

Power  of  Legislature  to  Abolish  Vested  Ri- 
parian Rights,  see  Waters,  179. 

See  also  supra,  53,  61,  135,  136;  infra,  677, 
812,  827,  920. 

For  Editorial  Notes,  see  infra,  III.  §§11,  14. 

137.  A  law  which  facilitates  the  intention 
of  the  parties  to  a  contract  by  removing  its 
invalidity  does  not  impair  any  vested  right. 
Shields  v.  Clifton  Hill  Land  Co.  94  Tenn.  123, 
28  S.  W.  668,  26:  509 

138.  A  majority  of  the  stockholders  of  a 
corporation  have  no  vested  right  to  elect  the 
directors,  which  will  be  infringed  by  How. 
(Mich.)  Anno.  Stat.  §  4885a,  giving  the  mi- 
nority of  the  stockholders  the  power,  by  cu- 
mulative voting,  to  elect  a  representative 
membership  in  the  board  of  directors.  May- 
nard  ex  rel.  Dusenbury  v.  Looker,  111  Mich. 
498,  69  N.  W.  929,  56:  947 

139.  The  charter  reservation  of  power  to 
amend  it  does  not  destroy  the  constitutional 
protection  of  the  vested  rights  of  the  cor- 
poration against  legislative  interference. 
State  ex  rel.  White  v.  Neff,  52  Ohio  St.  375, 
40  N.  E.  720,  28:  409 

140.  The  reopening  of  the  decision  of  tax 
officers,  by  which  the  valuation  of  taxable 
property  has  been  fixed  and  taxes  thereon 
collected,  under  a  subsequent  statute  au- 
thorizing a  state  revenue  agent  to  assess 
and  collect  additional  taxes,  where,  in  his 
opinion,  the  tax  assessment  had  been  too 
small, — is  an  unconstitutional  interference 
with  vested  rights.  Adams  v.  Tonella,  70 
Miss.  701,  14  S.  W.  17,  22:  346 
To  enjoy  wife's  real  estate. 

For  Editorial  Notes,  see  infra,  III.  §  11. 

141.  The  right  of  a  husband  to  the  use  of 
his  wife's  real  estate,  with  power  to  rent  it 
for  not  more  than  three  years  at  a  time 
and  receive  the  rent,  under  Ky.  Gen.  Stat, 
p.  720,  chap.  52,  art.  2,  §  1,  which  was  in 
force  when  the  parties  were  married  and  the 
property  was  acquired,  is  a  vested  right  of 
which  the  legislature  cannot  deprive  him. 
Rose  V.  Rose,  104  Ky.  48,  46  S.  W.  524, 

41:353 
In  curtesy. 
For  Editorial  Notes,  see  infra,  HI.  §  11. 

142.  The  inchoate  right  of  a  husband  to 
curtesy  and  to  reduce  into  possession  his 
wife's  choses  in  action,  not  being  vested, 
may  be  interrupted  by  legislative  enactment. 
Alexander  v.  Alexander,  85  Va,  353,  7  S.  E. 
335,  1 :  125 

143.  The  common-law  estate  of  tenancy  by 
the  curtesy  initiate  is  a  vested  estate  which 
cannot  be  destroyed  by  legislation  which 
takes  effect  after  the  estate  comes  into  ex- 
istence. McNeer  v.  McNeer,  142  111.  388,  32 
N.  E.  681,  19:  256 


668 


CONSTITUTIONAL  LAW,  L  c. 


144.  The  modified  estate  of  tenancy  by 
the  curtesy  initiate  under  the  Illinois  act  of 
1861,  which  left  it  similar  to  an  inchoate 
right  of  dower,  except  in  attaching  to  the 
whole,  instead  of  one  third,  of  the  land  af- 
fected, was  not  a  vested  right,  but  was  one 
that  could  be  destroyed  by  legislation.  Id. 
To  convey  homestead. 

145.  The  right  of  a  man  to  convey  or  en- 
cumber his  homestead  without  co-operation 
of  his  wife,  as  allowed  by  law,  is  a  vested 
one,  notwithstanding  it  may  be  defeated  by 
the  filing  by  the  wife  of  a  claim  as  pre- 
scribed by  statute;  and  the  legislature  can- 
not destroy  the  right  as  to  existing  home- 
steads. Gladney  v.  Sydnor,  172  Mo.  318, 
72  S.  W.  554,  60:  880 

146.  A  vested  right  of  a  man  to  convey  his 
homestead  without  the  co-operation  of  his 
wife  is  impaired  by  a  statute  making  him 
incapable  of  conveying  it  unless  his  wife 
joins  in  the  conveyance.  Id. 

147.  A  deprivation  of  right,  and  not  mere- 
ly a  change  in  remedy  or  procedure,  is  ef- 
fected by  a  statute  which  forbids  a  man  to 
sell  his  homestead  without  the  co-operation 
of  his  wife,  where,  theretofore,  he  might 
do  so  unless  the  wife  filed  a  claim  as  pre- 
scribed by  statute.  Id. 
From  dismissal  of  appeal. 

148.  The  dismissal  of  an  appeal  for  fail- 
ure to  comply  with  a  mandatory  statute  as 
to  paj'ment  of  the  register's  fee  for  his 
return  confers  a  vested  right  which  cannot 
be  impaired  by  a  subsequent  statute  permit- 
ting the  reinstatement  of  appeals  within  a 
specified  time  upon  proof  that  the  fee  has 
been  paid  in  the  interim.  Lohrstorfer  v. 
Lohrstorfer,   140  Mich.  551,   104  M.  W.   142. 

70:  621 
In  decedent's  estate. 

149.  A  statute  taxing  the  right  already 
vested  to  take  shares  of  an  estate  of  a  per- 
son who  died  before  the  act  was  passed,  but 
which  is  yet  subject  to  the  control  of  the 
probate  court  and  not  yet  distributed,  is  not 
an  unconstitutional  impairment  of  vested 
rights.  State  ex  rel.  Gclsthorpe  v.  Furnell, 
20  Mont.  299,  51  Pac.  267,  39:  170 

150.  The  estate  of  a  deceased  person  can- 
not be  subjected  to  a  collateral  inheritance 
tax  by  statute  passed  after  the  death  of 
the  owner,  where  the  Constitution  prohibits 
retrospective  legislation.  State  ex  rel.  Garth 
V.  Switzler,  143  Mo.  287,  45  S.  W.  245, 

40:  280 
In  reversion. 

151.  A  contingent  claim  to  a  reversion  in 
respect  to  the  real  estate  of  a  corporation 
in  case  of  its  dissolution,  wliich  is  dependent 
on  the  action  of  the  sovereign  in  insisting 
upon  a  forfeiture  of  the  charter,  is  a  mere 
expectancy  which  can  be  defeated  by  legisla- 
tion authorizing  a  sale  of  the  property  under 
judicial  decree,  or  granting  the  privileges 
of  the  old  corporation,  or  even  additional 
privileges  to  a  new  corporation  which  be- 
comes its  successor.  Bass  v.  Roanoke  Nav. 
&  W.  P.  Co.  Ill  N.  C.  439.  10  S.  E.  402, 

19:  247 
In  insurance  policy. 

152.  A  statute  exempting  the  proceeds  of 


life-insurance  policies  from  liability  for 
debts  of  the  insured  cannot  be  given  a  ret- 
roactive operation  without  unconstitution- 
ally impairing  vested  rights.  Re  Heilbron's 
Estate,  14  Wash.  536,  45  Pac.  153,  35:  602 
In  alimony. 

153.  A  provision  for  alimony  in  a  judg- 
ment granting  a  divorce,  which  cannot  be 
changed  under  existing  laws,  is  a  vested 
right  which  cannot  be  impaired  by  a  subse- 
quent statute  conferring  power  upon  the 
courts  to  modify  it.  Livingston  v.  Living- 
ston, 173  N.  Y.  377,  66  N.  E.  123,  61:  800 
In  license. 

154.  A  vested  right  cannot  be  acquired  in 
a  license  granted  under  an  ordinance  that 
gives  or  reserves  the  power  to  revoke  it. 
Child  V.  Bemus,  17  R.  L  230,  21  Atl.  539, 

12:  57 
In  ofSce. 

155.  One  appointed  for  a  definite  time  to  a 
legislative  office  has  no  vested  property  in- 
terest or  contract  right  thereto  of  which  the 
legislature  cannot  deprive  him  during  the 
existence  of  the  term.  State  ex  rel.  Mial  v. 
Ellington,  134  N.  C.  131,  46  S.  E.  961, 

65:  697 
In  judgment. 

156.  Property  rights  are  created  by  the 
rendition  of  a  judgment,  which  the  legisla- 
ture has  no  power  to  reach  and  destroy. 
Gilman  v.  Tucker,  128  N.  Y.  190,  28  N.  E. 
1040,  13:  S04 

157.  Judgments  rendered  before  the  pas- 
sage of  the  act,  directing  the  sale  of  lands 
or  interests  therein,  cannot  be  affected  by  a 
statute  extending  the  time  for  redemption 
from  such  sale,  although  the  sale  has  not 
yet  taken  place.  Greenwood  v.  Butler,  5:! 
Kan.  424,  34  Pac.  967,  22:  465 

158.  Where  a  town  has  fully  perfected  its 
right,  under  the  law,  to  rontributirm  for  the 
expense  of  a  bridge  from  another  town,  by 
obtaining  a  judgment  therefor,  a  sub-accjuent 
statute  cannot  deprive  it  of  this  adjudicated 
right  and  require  a  new  proceeding  to  again 
establish  the  same  right  against  another 
partv.  Strafford  v.  Sharon,  61  Vt.  126,  17 
Atl.  793,  4:  49S 
In  attachment  lien. 

Impairment  of  Obligation  as  to  Attachment, 
see  infra,  1199. 

159.  The  lien  of  an  attachment  duly  lev- 
ied and  perfected  by  judgment  is  a  vested 
right  in  favor  of  the  attachment  creditor,  as 
against  the  property  of  the  attachment 
debtor  upon  which  the  writ  was  levied, 
which  cannot  be  impaired  by  subsequent  leg- 
islation,— especially  where  the  lien  of  an  at- 
tachment after  judgment  is  of  as  high  an 
order  as  that  of  an  execution.  McFadden 
V.  Blocker.  2  Ind.  Terr.  260.  48  S.  W.  1043, 

58:  878 
In  statute  of  limitations. 
Impairing  Oblijiation  of  Contracts  as  to,  see 

infra.  1196,  1197,  1204. 
See  also  infra,  329. 
For  Editorial  Notes,  see  infra.  III.  §  14. 

100.  A  right,  fully  matured  \inder  existing 
law,  to  defeat  a  debt  by  a  plea  of  the  stat- 
ute of  limitations,  is  neither  a  vested  right 
nor  a  property   right,   and   may  be    taken 


CONSTITUTIONAL  LAW,  I.  d,  1. 


509 


away  at  will  by  the  legislature.    Orman  v. 
Van  Arsdell,  12  N.  M.  344,  78  Pac.  48. 

67 :  438 

161.  The  vested  right  to  a  defense  under 
the  statute  of  limitations  after  bar  of  a 
cause  of  action  is  complete  is  protected 
against  subsequent  changes  in  the  law  by 
the  constitutional  provision  that  all  "rights" 
shall  continue  valid.  Lawrence  v.  Louisville, 
96  Ky.  595,  29  S.  W.  450,  27 :  560 

162.  There  is  no  vested  right  to  a  defense 
under  the  statute  of  limitations,  such  that 
the  legislature  may  not,  by  repeal  of  the 
statute  or  otherwise,  revive  the  action  and 
deprive  one  of  such  defense,  where  the  stat- 
ute merely  gives  a  defense,  and  does  not  vest 
property.  McEldowney  v.  Wvatt,  44  W.  Va. 
711,  30  S.  E.  239,  "  ',  45:  609 
In  penalties. 

163.  A  plaintiff  in  a  pending  action  for 
penalties  allowed  by  a  statute  has  no  such 
vested  right  in  such  penalties  before  the 
recovery  of  a  judgment  in  the  action  as  will 
render  unconstitutional  as  to  him  the  repeal 
and  amendment  of  the  statute  when  it  is 
provided  in  the  amended  statute  that  it 
shall  appiy  to  all  actions  pending.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  V.  Wells,  65  Ohio 
St.  313,  62  N.  E.  332,  58:  651 

d.  Delegation  of  Powers. 

1.  In  General. 

Abandonment  of  Power  Delegated,  see  infra, 
304. 

By  Supreme  Lodge  of  Benefit  Society,  see 
Benevolent  Societies,  22. 

To  Create  Corporation,  see  Benevolent  So- 
cieties, 8. 

By  Directors  of  Corporation,  see  Corpora- 
tions, 230. 

By  County,  see  Counties,  42. 

Delegation  of  Power  of  Eminent  Domain, 
see  Courts,"  491. 

Relation  of  Courts  to  Other  Departments  of 
Government,  see  Courts,  I.  c. 

Power  of  Legislature  Generally,  see  Legis- 
lature, II. 

As  to  Appointment  of  Medical  Examiners, 
see  Medical  Examiners,  2. 

Delegation  of  Legislative  Power  over 
Streets,  see  Municipal  Corporations,  63. 

As  to  Impeachment,  see  Officers,  159. 

See  also  infra,  226. 

For  Editorial  Notes,  see  infra.  III.  §  5. 

164.  The  legislature  cannot  delegate  its 
power  to  make  a  law,  but  it  can  make  a  law 
to  delegate  a  power  to  determine  some  fact 
or  state  of  things  upon  which  the  law 
makes,  or  intends  to  make,  its  own  action 
depend.  Port  Royal  Min.  Co.  v.  Hagood.  30 
S.  C.  519,  9  S.  E.686,  3:  841 

165.  The  legislature  may  delegate  to  an 
officer  or  corporation  the  right  to  determine 
the  necessity  of  the  exercise  of  the  power 
of  eminent  domain.  State  ex  rel.  Baltzell  v. 
Stewart,  74  Wis.  620,  43  N.  W.  947,  6:  394 
By  Congress. 

166.  The  act  of  Congress  known  as  the 
Wilson  bill,  making  intoxicating  liquors  im- 
ported in  original  packages  subject  to  the 
laws  of  any  state  into  which  they  are  car- 


I  ried,  is  not  an  unconstitutional  delegation 
of  power,  as  it  simply  declares  when  such 
property  shall  become  subject  to  state  laws, 
and  does  not  give  any  power  to  the  states 
to  Icirislate  upon  that  subject.  Re  Van 
Vliet,^43  Fed.  761,  10:451 

Re  Spickler,  43  Fed.  653,  10:  446 

167.  The  act  of  Congress  admitting  Utaft 
as  a  state  by  accepting  and  ratifying  the 
state  Constitution  invested  all  its  provisions 
with  all  authority  conferred  by  any  act  of 
Congress,  even  if  the  power  given  to  provide 
for  the  transfer  of  causes  pending  in  the  ter- 
ritorial courts  to  the  state  and  Federal 
courts  was  an  invalid  delegation  of  the  pow- 
er of  Congress.  McCornick  v.  Western  U. 
Teleg.  Co.  25  C.  C.  A.  35,  49  U.  S.  App.  116, 
79   Fed.   449,  38:  684 

168.  The  power  given  by  the  act  of  Con- 
gress to  the  constitutional  convention  of 
Utah  to  provide  for  the  transfer  of  actions 
pending  in  the  territorial  courts  to  the  state 
or  Federal  courts  is  not  an  invalid  delega- 
tion of  the  power  of  Congress,  as  Congress 
has  power  to  create  local  legislative  bodies 
and  invest  them  with  legislative  powers.  Id. 
To  governor. 

169.  Authorizing  the  governor  to  issue  a 
proclamation  against  bringing  sheep  into  the 
state  from  districts  in  which  he  has  reason 
to  believe  infectious  disease  of  sheep  has  be- 
come epidemic  does  not  delegate  to  him 
legislative  power.  State  v.  Rasmussen,  7 
Idaho,  1,  59  Pac.  933,  52:  78 

170.  Legislative  power  is  not  conferred  up- 
on a  commission  and  the  executive  by  a 
statute  which  authorizes  the  commission  to 
select  school  books,  make  contracts  with  the 
lowest  bidder  for  obtaining  them  for  all  the 
schools  of  the  state  from  one  publisher,  and 
perfect  the  details  of  the  general  plan  of 
providing  all  schools  with  such  books,  and 
gives  to  the  commission  and  the  governor, 
as  an  incident  to  this  the  authority  to  an- 
nounce when  the  details  have  been  arranged, 
so  that  the  law  may  be  put  into  operation. 
Leeper  v.  State,  103  Tenn.  500,  53  S.  W.  962. 

48:  167 
To  state  auditor. 

171.  An  unconstitutional  delegation  of 
legislative  power  is  not  effected  by  confer- 
ring upon  the  state  auditor  the  right  to  is- 
sue licenses  for  bookmaking  on  horse  races 
to  persons  of  good  character,  to  be  exercised 
on  grounds  of  good  repute.  State  v.  Thomp- 
son, 160  Mo.  333,  60  S.  W.  1077,  54:  950 
To  humane  society. 

172.  llie  authority  given  to  a  humane  so- 
ciety by  N.  Y.  Laws  1896,  chap.  448,  to  de- 
stroy or  appropriate  unlicensed  dogs,  is  not 
an  unconstitutional  delegation  of  govern- 
mental power  to  a  private  corporation,  since 
unlicensed  dogs  have  long  been  regarded  as 
subject  to  destruction  by  any  person.  Fox 
V.  Mohawk  &  H.  R.  Humane  Soc.  165  N.  Y. 
517,  59  N.  E.  353,  51 :  681 
To  railroad  company. 

173.  A  statute  making  the  sale  of  a  rail- 
road ticket  by  other  than  an  agent  of  the 
company  a  penal  oft'ense  when  it  bears  upon 
its  face  a  statement  that  suoh  sale  is  penal 
is  invalid  under  a  constitutional  provision 


570 


CONSTITUTIONAL  LAW,  I.  d,  2,  8. 


forbidding  the  legislature  to  suspend  laws, 
as  giving  the  railroad  company  an  option  as 
to  the  creation  of  the  offense;  and  it  is  im- 
material that  the  statute  requires  the  com- 
pany to  place  such  words  on  the  ticket,  if 
there  is  no  penalty  for  refusal.  Jannin  v. 
State,  42  Tex.  Crim.  Rep.  631,  51  S.  W.  1126, 
62  S.  W.  419,  53:  349 

To  private  person. 
See  also  infra,  842. 

174.  A  statute  enabling  the  owner  of  ad- 
joining land,  where  a  right  of  way  has  been 
given  to  a  railroad  company,  to  require  the 
company  to  build  a  fence  on  each  side  of 
the  right  of  way,  at  its  own  cost,  thus  leav- 
ing it  with  Mm,  not  only  to  enforce  the 
requirement  of  a  fence,  but  to  determine  its 
necessity,  is  unconstitutional.  Owensboro  & 
N.  R.  Co.  V.  Todd,  91  Ky.  175,  15  S.  W.  56, 

11:  285 

175.  A  statute  providing  that,  whenever 
persons  desiring  to  remove  any  tract  of  land 
from  the  corporate  limits  of  a  city  shall  pe- 
tition for  such  removal,  it  shall  be  made, 
provided  that  after  published  notice  the  dis- 
trict court  shall  find  that  no  public  or  pri- 
vate right  will  be  injured  or  endangered,  all 
considerations  as  to  any  right  of  the  city 
or  its  creditors  to  look  to  the  property  for 
taxes  being  excluded, — is  unconstitutional  in 
that  it  attempts  to  confer  a  legislative  pow- 
er upon  such  petitioners.  Hutchinson  v. 
Leimbach,  68  Kan.  37,  74  Pac.  598,  63:  630 
As  to  selection  of  officers. 

Usurpation  of  Power  as  to,  see  infra,  I.  e,  3. 
Appointment    as    Interference    with    Local 

Self -Government,  see  infra,  283-298. 
See  also  infra,  189,  190,  201,  210;   Officers, 

54-56. 

176.  The  rule  of  law  against  delegation  of 
power  by  the  legislature  refers  to  the  law- 
making power,  and  does  not  prohibit  the 
legislature  from  delegating  the  selection  of 
mere  municipal  agents.  State  ex  rel,  Sher- 
man V.  George,  22  Or.  142,  29  Pac.  356, 

16:  737 

177.  The  power  to  appoint  a  state  super- 
visor of  oil  inspection  may  be  conferred  upon 
state  geologists  by  the  legislature,  under 
Ind.  Const,  art.  15,  §  1,  authorizing  appoint- 
ments to  offices  not  otherwise  provided  for 
in  that  Constitution  to  be  made  as  "pre- 
scribed by  law."  State  ex  rel.  Yancey  v. 
Hyde,  129  Ind.  296,  28  N.  E.  186,  13:  79 

2.  To  People. 

As  to  Local  Option,  see  Intoxicating  Li- 
quors, I.  c. 

Special  Legislation  as  to,  see  Statutes,  333, 
334,  402. 

For  Editorial  Notes,  see  infra,  III.  §  2. 

178.  Ihe  power  to  enact  laws  cannot  be 
delegated  by  the  legislature  to  the  people 
themselves,  except  in  respect  to  certain 
questions  of  local  concern.  Bradshaw  v. 
Lankford,  73  Md.  428,  21  Atl.  66,  11 :  582 

179.  A  statute  providing  that  it  shall  take 
effect  upon  its  acceptance  by  a  majority  vote 
of  the  people  of  the  state  cannot  be  upheld 
under  the  Constitution  of  Massachusetts, 
which  makes  the  senate  and  house  of  repre- 


sentatives the  legislative  department  of  the 
government,  and  does  not  reserve  to  the  peo- 
ple any  direct  power  of  supervision.  Re  Mu- 
nicipal Suffrage  to  Women,  160  Mass.  586, 
36  N.   E.   488,  23:  113 

180.  A  statute  allowing  women  to  vote  in 
town  and  city  elections  cannot  be  made  to 
take  effect  in  any  city  or  town  upon  its  ac- 
ceptance by  majority  vote  of  the  voters  of 
such  city  or  town,  since  it  is  a  matter  of 
general,  and  not  local,  concern,  to  which 
the  principle  of  local  option  cannot  properly 
apply.  Id. 

181.  The  question  whether  oysters  may  be 
taken  by  scoop  or  dredge  within  the  waters 
of  Somerset  county,  Maryland,  cannot  be 
submitted  to  the  voters  of  certain  election 
districts  in  that  county,  as  the  oyster  beds 
do  not  belong  to  the  people  of  that  county, 
but  to  the  state.  Bradshaw  v.  Lankford,  73 
Md.  428,  21  Atl.  66,  11:  582 
As  to  creation  of  municipal  corporation. 

182.  It  is  not  an  unconstitutional  delega- 
tion of  legislative  power  to  create  a  munici- 
pal corporation,  to  provide  that  such  a  cor- 
poration shall  not  be  created  under  a  gen- 
eral law  without  an  affirmative  vote  of  those 
who  are  to  be  affected  by  its  creation.  Re 
Madera  Irrig.  Dist.  Bonds,  92  Cal.  296,  341, 
28  Pac.  272,  14:  755 

3.  To  Judiciary. 

Relation  of  Court  to  Other  Departments  of 
Government,  see  Courts,  I.  c. 

Power  of  Legislature  as  to  Courts,  see 
Courts,  I.  e. 

To  Suspend  Sentence,  see  Criminal  Law,  243. 

As  to  Issuance  of  Liquor  License,  see  In- 
toxicating Liquors,  66. 

183.  Legislative  powers  are  not  delegated 
to  the  judiciary  by  Minn.  Gen.  Stat.  1894,  § 
5979,  providing  that  the  court  or  judge  al- 
lowing a  writ  of  mandamus  shall  direct  the 
manner  of  serving  the  same.  State  ex  rel. 
Railroad  &  W.  Commission  v.  Adams  Exp. 
Co.  66  Minn.  271,  68  N.  W.  1085,       38:  225 

184.  Nonjudicial  duties  are  not  imposed 
upon  a  judge  by  a  statute  providing  that, 
when  the  attorney  general  has  determined 
to  commence  an  action  under  the  statute  for 
the  prevention  of  monopolies,  "it  shall  be 
the  duty"  of  the  judge  to  grant  his  appli- 
cation for  an  order  for  examination  of  wit- 
nesses, since  he  must  first  decide  whether  or 
not  a  case  has  been  made  out  pursuant  to 
the  statute,  so  that  the  duty  is  judicial  in 
form,  and  the  purpose  of  the  statute  is  to 
enable  the  attorney  general  to  prepare  his 
complaint,  or  to  prepare  for  trial,  which  is 
judicial  in  nature.  Re  Davies,  168  N.  Y. 
89,  61  N.  E.  118,  56:855 

185.  Tenn.  act  1887,  chap.  158,  attempting 
to  change  the  practice  in  criminal  trials 
when  the  minimum  degree  of  punishment  is 
not  above  one  year  in  the  penitentiary,  so  as 
to  give  the  judge  discretion  to  allow  the 
jury  to  disperse  and  not  be  placed  in  charge 
of  an  officer,  is  unconstitutional  because  it 
attempts  to  confer  upon  each  judge  the  pow- 
er to  suspend  the  general  law,  making  his 


CONSTITUTIONAL  LAW.  I.  d,  3. 


671 


discretion   the   only   rule    for   his   conduct. 
King  V.  State,  87  Tenn.  304,  10  S.  W.  500, 

3:  210 

186.  A  county  court  in  West  Virginia, 
which  has  superintendence  and  administra- 
tion of  the  internal  and  fiscal  affaii-s  of  the 
county,  though  shorn  of  general  judicial 
power,  may  be  given  by  the  legislature  au- 
thority, upon  petition  of  a  certain  number 
of  voters,  to  adopt  a  certain  statute  respect- 
ing the  nmning  at  large  of  hogs.  Haigh  v. 
Bell,  41  W.  Va.  19,  23  S.  E.  666,       31:  131 

187.  The  power  to  make  an  order  for  a 
telephone  line,  in  a  highway,  as  provided  in 
Ohio  Rev.  Stat.  §  3461,  giving  the  probate 
court  complete  jurisdiction  of  the  proceed- 
ing, is  not  distinctively  legislative  or  ad- 
ministrative, but  is  constitutid^ally  con- 
ferred on  the  court.  Zanesville  v.  Zanes- 
ville  Teleg.  &  Teleph.  Co.  64  Ohio  St.  67, 
59  N.  E.  781,  52:  150 

188.  The  authority  to  establish  maximum 
water  rates,  conferred  upon  judges  of  the 
supreme  judicial  court  by  Mass.  Stat.  1897, 
chap.  336,  §  1,  authorizing  the  judges,  on  pe- 
tition of  the  selectmen  of  a  town,  or  any 
persons  deeming  themselves  aggrieved  by  the 
price  charged  for  water,  to  fix  maximum 
rates  once  in  five  years,  which  shall  be  bind- 
ing upon  the  water  company  until  revised 
or  altered  by  the  court,— does  not  make  of 
the  court  a  legislative  commission  to  deter- 
mine what  rules  shall  govern  people  who 
are  not  yet  in  relation  to  each  other,  but 
requires  the  court  to  fix  the  extent  of  actual 
existing  rights  primarily  for  the  party  ag- 
grieved, although  secondarily  it  fixes  a  gen- 
eral rate  for  all  parties  and  for  the  future 
as  well  as  the  past.  Re  Janvrin,  174  Mass. 
514,  55  N.  E.  381,  •  47:319 
Selection  of  officers. 

Usurpation  of  Power  as  to,  see  infra,  I.  e,  3. 
Appointment  as  Interference  with  Local  Self 

Government,  see  infra,  283-298. 
See  also  supra,  176,  177. 

189.  The  power  to  appoint  examiners  of 
titles,  given  to  the  district  courts  by  Minn. 
Laws  1901,  chap.  237,  providing  for  the  Tor- 
rens  system  of  registering  land  titles,  is  not 
in  violation  of  Minn.  Const,  art.  3,  vesting 
the  powers  of  government  in  three  distinct 
departments.  State  ex  rel.  Douglas  v.  West- 
fall,  85  Minn.  437,  89  N.  W.  175,  57:  297 

190.  The  power  of  choosing  the  managers 
of  a  municipal  water-supply  system  cannot 
be  vested  by  the  legislature  in  the  judges 
of  a  court  created  by  the  Constitution. 
State  ex  rel.  White  v.  Barker,  116  Iowa,  96, 
89  N.  W.  204,  57:244 
As  to  carriers. 

191.  An  act  creating  a  court  of  visitation, 
and  giving  it  jurisdiction  to  try  and  deter- 
mine all  questions  as  to  what  are  reasonable 
freight  rates,  switching  charges,  etc.,  with 
power  to  establish  rates  for  the  future,  ap- 
portion c-harges  between  connecting  car- 
riers, require  the  construction  and  mainte- 
nance of  depots,  and  make  other  regulations 
for  the  operation  of  railroads, — is  unconsti- 
tutional and  void  as  an  attempt  to  confer 
legislative   and   administrative  power  upon 


a  judicial  tribunal.    State  ex  rel.  Godard  v. 
Johnson.  61  Kan.  803,  60  Pac.  1068,      49:  662 

192.  The  provision  of  the  Minnesota  Con- 
stitution forbidding  the  delegation  of  the 
lea^islative  powers  to  the  judiciary  is  not 
violated  by  the  provision  of  Minn.  Gen.  Stat. 
1894,  §  399,  that  the  courts  may  direct  the 
manner  in  which  notice  may  be  given  to  a 
common  carrier  of  a  hearing  of  an  accusa- 
tion that  it  refuses  or  neglects  to  obey  any 
lawful  order  of  the  railroad  and  warehouse 
commission.  State  ex  rel.  Railroad  &  W. 
Commission  v.  Adams  Exp.  Co.  66  Minn.  271. 
68  N.  W.  1085,  38:  225 
As  to  municipalities. 

193.  A  statute  authorizing  the  creation  of 
a  municipal  corporation  by  a  judicial  court, 
upon  petition  of  a  majority  of  the  inhabi- 
tants of  the  territory  to  be  incorporated,  is 
unconstitutional  as  delegating  legislative 
funcions  to  the  court.  Territory  ex  rel.  Kel- 
ly V.  Stewart,  1  Wash.  98,  23  Pac.  405, 

8:  106 

194.  A  reference  to  a  court  of  legislative 
or  political  questions  as  to  the  incorporation 
of  villages,  in  violation  of  the  constitutional 
provision  requiring  the  legislature  to  pro- 
vide by  general  laws  for  the  organization  of 
cities  and  incorporated  villages,  is  attempt- 
ed by  Sanb.  &  B.  (Wis.)  Ann.  Stat,  §  861, 
requiring  the  court  to  determine  not  only 
questions  of  fact  as  to  the  survey,  census, 
and  other  statutory  requirements,  but  also 
the  questions  whether  or  not  the  interest  of 
the  inhabitants  will  be  promoted  by  such 
incorporation  and  the  lands  ought  justly  to 
be  included  in  the  village,  and  further  au- 
thorizing the  court  to  enlarge  or  diminish 
the  boundaries  of  a  village  as  justice  may 
require.  Re  North  Milwaukee,  93  Wis.  616, 
67  N.  W.  1033,  33:  638 

195.  No  unlawful  delegation  of  legislative 
power  to  a  judicial  oflScer  is  made  by  a  stat- 
ute requiring  the  approval  of  a  court  to  an 
ordinance  extending  the  limits  of  a  city 
under  a  general  law  of  tne  state.  The  de- 
termination of  the  question  whether  the 
statutory  conditions  have  been  complied 
with  is  judicial.  Callen  v.  Junction  City,  43 
Kan.  627,  23  Pac.  652,  7:  736 

196.  A  statute  providing  for  commission- 
ers appointed  by  a  court  to  make  a  report  as 
to  a  proposed  annexation  of  municipal  corpo- 
rations, which  anne.xation  becomes  complete 
on  the  approval  of  the  report  by  the  court, 
is  not  unconstitutional  as  vesting  a  court 
with  powers  not  judicial  so  as  to  defeat  the 
operation  of  the  statute, — at  least  where 
the  courts  and  judges  make  no  objection. 
State  ex  rel.  Richards  v.  Cincinnati,  62  Ohio 
St.  419,  40  N.  E.  508,  27:737 

197.  The  assignment  or  transfer  by  a 
court  of  a  town  or  city  from  one  class  to 
another,  which  Ky.  Stat.  §§  3661,  3662,  at- 
tempt to  authorize,  is  in  violation  of  Ky. 
Const.  §  156.  requiring  the  general  assembly 
to  make  such  assignments  and  transfers,  and 
making  no  provision  for  delegating  tht,t 
power,  dernigan  v.  Madisonville,  102  Ky. 
313,  43  S.  W.  448,  39:  214 


572 


CONSTITUTIONAL  LA.W,  I.  d.  4. 


4.  To    Local    Aufchorities    and    Boards    and 
Commissioners. 

To  Commissioners  for  Public  Improvements, 

see  Public  Improvements,  133. 
See  also  supra,  170;  infra,  228,  229,  232-234. 

198.  A  law  which  invests  any  board  or 
body  of  officials  with  a  discretion  purely 
arbitrary,  and  which  may  be  exercised  in  the 
interests  of  a  favored  few  is  invalid.  N^oel 
V.  People,  187  111.  587,  58  N.  E.  616,    52:  287 

199.  vestinsr  in  township  committees  the 
power  to  divide  the  toM'nships  into  districts 
for  street  lighting  and  road  purposes  is  not 
an  unconstitutional  delegation  of  legislative 
power.  State,  Allison,  Prosecutor,  v.  Cork- 
er (X.  J.  Err.  &  App.)  67  X.  J.  L.  596.  52 
Atl.  362,  60:  564 

200.  Discretion  cannot  be  delegated  by  the 
legislature  to  the  commissioner  of  the  bu- 
reau of  labor  statistics  to  determine  that  the 
liability  to  inhalation  of  dust  or  injurious 
gases  in  particular  factories  can  to  a  great 
extent  be  prevented  by  some  mechanical  de- 
vice the  provision  of  which  he  shall  recom- 
mend, and  the  failure  to  comply  with  the 
recommendation  made  a  misdemeanor. 
Schaezlein  v.  Cabaniss,  135  Cal.  466,  67  Pac. 
755,  56:  733 

201.  An  act  to  license  steam  engineers, 
which  furnishes  no  standard  as  to  qualifi- 
cations, and  makes  the  various  district  ex- 
aminers provided  for  in  the  act  the  exclu- 
sive judges  as  to  whether  an  applicant  is 
competent,  thus  allowing  the  examiner  of  a 
district  in  effect  to  make  the  law  for  his 
district,  is  a  grant  of  legislative  power  in 
violation  of  Ohio  Const,  art.  2,  §  1,  vesting 
all  legislative  ])Ower  in  the  general  assembly. 
Harmon  v.  State  ex  rel.  Card,  66  Ohio  St. 
249,  64  N.  !•:.  117,  58:  618 
Ta  municipality. 

Prohibiting  Keeping  of  Disorderly  Houses, 
see  Disorderly  Houses,  9. 

To  Condemn  Land  for  Park  and  Boulevai'd 
Purposes,  see  Eminent  Domain.  89. 

To  Impose  Tax  on  ^^ollic]os.  sco  License.  96. 

Authority  of  City  to  Delegate  Its  Power,  see 
Municipal  Corporations,  11.  b.  2. 

"What  is  a  Delegation  of  Power  to  or  by 
Municipality,  see  Mimicipal  Corpora- 
tions, II.  b,  1. 

Special  Legislation  as  to.  see  Statutes,  333, 
334,  373,  379,  402. 

Power  to  Fix  Water  Rates,  see  Waters,  582. 

See  also  Public  Moneys,  15. 

For  Editorial  X^otes,  see  infra.  III.  §  5. 

202.  The  police  power  may  be  delegated 
by  the  legislature  to  municipal  corporations. 
Chicago,  B.  &  Q.  R.  Co.  v.  State  ex  rel.  Oma- 
ha, 47  Xeb.  549,  66  X.  W.  624.  41:  481 

203.  The  legislature  may  confer  upon  the 
common  council  of  the  citj'  of  Detroit  the 
authority  to  pass  ordinances  for  the  sup- 
pression of  disorderly  houses  and  houses  of 
ill  fame.  People  v.  Hanrahan,  75  ificli.  611, 
42  X.  W.  1124,  4:  751 

204.  It  is  not  an  unconstitutional  delega- 
tion of  power  for  the  legislature  to  authorize 
a  city  council  to  empower  the  city  board  of 
police  to  make  rules  and  regulations  in  ref- 


erence    to    itinerant    musicians.      Com.     v. 
Plaisted,  148  Mass.  375,  19  N.  E.  224,    2:  142 

205.  The  legislature  may  constitutionally 
delegate  to  a  municipality  the  power  to  pun- 
ish by  ordinance  an  att  made  punishable  un- 
der state  laws.  Theisen  v.  McDavid,  34  Fla. 
440,  16  So.  321,  26:  234 

206.  The  New  Jersey  "Act  to  Establish  an 
Excise  Department  in  Cities  in  this  State" 
(N.  J.  Supp.  Rev.  693,  696)  is  a  grant  of 
original  power  to  a  municipal  department 
the  creation  of  which  is  intrusted  to  the  mu- 
nicipality itself;  it  is  not  a  delegation  of 
power  to  the  municipality,  to  be  by  it  passed 
over  to  a  body  of  its  own  creation.  State, 
Rilev.  Prosecutor,  v.  Trenton  (N.  J.  Sup.) 
51  N.  J.  L.  498,  18  Atl.  116,  5:  352 

207.  A  delegation  of  the  power  to  impose 
license  taxes  on  occupations  may  be  made 
by  the  legislature  to  municipal  corporations. 
Banta  v.  Chicago,  172  HI.  204,  50  N.  E.  233, 

40:  611 

208.  The  legislature  cannot  delegate  the 
power  to  fix  and  determine  the  amount  of  a 
tax  for  a  public  library,  which  must  be  lev- 
ied by  the  common  council  to  a  board  which 
is  not  chosen  by,  and  directly  responsible 
to,  the  taxpayers,  unless  the  people  assent 
thereto.  State  ex  rel.  Howe  v.  Des  Moines, 
103  Iowa,  76,  72  N.  W.  639,  39:  285 
To  levee  district. 

209.  The  legislature  cannot  delegate  to  a 
levee  district  the  legislative  power  to  levy  a 
tax  under  Tenn.  Const,  art.  2,  authorizing  it 
to  delegate  such  power  to  counties  and  in- 
corporated towns,  siince  this  impliedly  ex- 
cludes delegation  to  any  other  agency.  Reel- 
foot  Lake  Levee  Dist.  v.  Dawson,  97  Tenn. 
151,  36  S.  W.  1041,  34:  725 
To  civil  service  commissioners. 

See  also  supra,  227. 

210.  Authorizing  civil  service  commission- 
ers to  make  rules  for  the  examination  of 
persons  applying  for  appointments  to  public 
office  does  not  delegate  to  them  legislative 
fHJwer.  People  ex  rel.  Akin  v.  Kipley,  171 
HI.  44,  49  N.  E.  229,  41:  775 
To  county  board. 

See  also  Public  Moneys,  15. 

211.  Where  the  Constitution  authorizes  a 
delegation  of  legislative  power  for  local  pur- 
poses to  boards  of  supervisors,  the  legisla- 
ture may  suspend,  or  authorize  legislation 
which  will  necessarily  operate  to  suspend, 
the  general  law  in  particular  localities. 
Feek  v.  Bloomingdale  Twp.  Bd.  82  Mich.  393, 
47  N.  W.  37,  10:  69 

212.  An  unconstitutional  delegation  of  leg- 
islative power  to  county  commissioners  is 
not  made  by  a  statute  authorizing  them, 
whenever  they  have  in  any  county  a  pre- 
cinct of  more  than  20,000  inhabitants,  to  ap- 
point additional  justices  of  the  peace  if  the 
needs  of  the  precinct  require  it.  Pueblo 
County  v.  Smith,  22  Colo.  534,  45  Pac.  357, 

33:  465 

213.  The  legislature  cannot  delegate  to  the 
board  of  supervisors  power  to  change  or  sus- 
pend a  provision  of  a  genera!  law  requiring 
a  county  clerk  to  pay  his  own  deputies,  by 
allowing  him  the  expense  of  necessary  depu- 
ties if  in  their  opinion  his  salary  is  insuffi- 


CONSTITUTIONAL  LAW,  I.  d.  5. 


57a 


cient  to  pay  for  such  services,  where  the 
C!onstitution  provides  that  the  legislature,  by 
general  and  uniform  laws,  shall  regulate 
the  compensation  of  all  such  officers. 
Dougherty  v.  Austin,  94  Cal.  601,  16:  161 
To  board  of  health. 

214.  The  power  granted  to  administrative 
boards  of  the  nature  of  boards  of  health, 
etc.,  to  adopt  rules,  by-laws,  and  regulations 
reasonably  adapted  to  carry  out  the  purpose 
or  object  for  which  they  are  created,  is  not 
an  impi'oper  delegation  of  legislative  au- 
thority in  violation  of  Ind.  Const,  art.  4,  §  1. 
Blue  V.  Beach,  155  Ind.  121,  56  N.  E.  89, 

50:  64 

215.  A  statute  rxthorizmg  the  state  board 
of  health  to  establish  a  system  of  quaran- 
tine, witli  inspection  of  pei-sons  and  baggage 
from  places  where  a  communicable  danger- 
ous disease  is  shown  to  the  satisfaction  of 
the  board  to  exist,  is  not  an  unconstitution- 
al delegation  of  power.  Jlurst  v.  \Varner, 
102  Mich.  238,  60  N.  W.  440,  26:  484 

216.  Legislative  power  cannot  be  delegated 
to  the  state  board  of  health  so  as  to  enable 
it,  without  the  enactment  of  any  statute 
upon  the  subject,  to  pass  any  rule  excluding 
children  who  are  authorized,  by  statute  to 
attend  the  public  schools  from  such  attend- 
ance unless  they  have  been  vaccinated. 
State  ex  rel.  Adams  v.  Burdge,  95  Wis.  390, 
70  N.  W.  347,  37:  157 
To  insurance  commissioner. 

217.  A  statute  providing  for  the  prepara- 
tion of  a  standard  policy  of  insurance  and 
its  adoption  by  an  insurance  commissioner, 
after  which  no  other  form  of  policy  can  be 
lawfully  issued,  is  an  unconstitutional  at- 
tempt to  delegate  to  him  legislative  power. 
Anderson  v.  ^lauchester  F.  Assur.  Co.  59 
Minn.   182,  60  N.  W.   1095,   63  N.  W.  241, 

28:  609 

218.  Pa.  act  April  16,  1891,  providing  for 
a  policy  of  fire  insurance,  is  unconstitutional 
in  delegating  to  the  insurance  commissioner 
the  preparation  of  the  form  of  policy,  with- 
out fixing  its  terms  or  conditions  requiring 
a  report  to  the  legislature  of  the  commis- 
sioner's action.  O'Neil  v.  American  F.  Ins. 
Co.  166  Pa.  72,  30  Atl.  943,  26:  715 

219.  A  statute  providing  that  the  insur- 
ance commissioner  shall  prepare,  approve, 
and  adopt  a  printed  form  of  a  policy  of  fire 
insurance,  to  conform  as  near  as  can  be  made 
applicable  to  that  used  in  a  certain  other 
state,  is  an  unconstitutional  attempt  to  de- 
egate  to  him  legislative  power.  Dowling  v. 
Lancasliire  Ins.  Co.  92  Wis.  63,  65  N.  W. 
738,  31:  112 
To  railroad  commissioner. 

220.  A  statute  conferring  on  a  commis- 
sion authority  to  regulate  the  charges  of 
railroads  for  transportation  of  passengers 
and  freights  is  not  an  unconstitutional  del- 
egation of  legislative  power.  McWhorter  v. 
Pensacola  &  A.  E.  Co.  24  Fla.  417,  5  So.  129, 

2:  504 
Chicago  &  N.  W.  R.  Co.  v.  Dey.  35  Fed. 
866,  1 :  744 

221.  At  least  where  the  reasonableness 
and  legality  of  such  regulation  is  reviewable 


by  the  courts.  Atlantic  Exp.  Co.  v.  Wil- 
mington &  W.  R.  Co.  Ill  N.  C.  463,  16  S.  E. 
393,  18:  393. 

222.  There  is  no  unconstitutional  delega- 
tion of  power  to  railroad  commissioners  by  a 
statute  authorizing  them  to  fix  reasonable 
maximum  rates  of  charges  for  freight  and 
passenger  traffic,  where  their  schedule  is  not 
final,  but  is  made  merely  prima  facie  evi- 
dence of  the  reasonableness  of  the  rates  es- 
tablished. Chicago,  ±5.  &  Q.  R.  Co.  v.  Jones, 
149  111.  361,  37  N.  E.  247,  24:  141 

223.  A  statute  authorizing  the  amount  of 
bonds  to  be  given  by  commission  merchants 
to  be  fixed  by  a  railroad  and  warehouse  com- 
mission is  not  a  delegation  of  legislative 
authority.  State  ex  rel.  Beek  v.  Wagener, 
77  Minn.  483,  80  N.  W.  633,  46:  442 
To  drainage  commissioners. 

224.  Granting  power  to  drainage  commi? 
sioners  to  determine  what  land  will  be  bene- 
fited by  the  proposed  drainage  and  shall  be 
assessed  therefor,  where  the  locality  is  speci- 
fied and  the  nature  and  extent  of  the  pro- 
posed drainage  is  clearly  indicated  by  the 
statute,  is  not  an  unlawful  delegation  of 
power.  State  ex  rel,  Baltzell  v.  Stewart,  74 
Wis.   620,  43  N.  W.  947,  6:  394 

5.  Of  Judicial  Power. 

For  Encroachment   on  Judicial   Power,   see 

infra,  I.  e,  2. 
To  Board  of   State  Auditors  to  Determine 

Innocence    of    Pardoned    Convict,    see 

Courts,  239. 
By  Judge,  see  Judges,  2. 
Power  to  Fix  Water  Rates,  see  Waters,  582. 

225.  To  constitute  a  delegation  to  a  min- 
isterial officer  of  judicial  power,  it  is  not 
necessary  that  the  adjudication  be  conclu- 
sive of  the  rights  of  the  parties  put  in  issue ; 
but  if  the  officer  is  clothed  with  the  power 
of  adjudicating  upon  and  protecting  the 
rights  and  interests  of  contesting  parties, 
and  the  adjudication  involves  the  construc- 
tion and  application  of  the  law,  and  affects 
the  rights  and  interests  of  the  parties,  al- 
though not  finally  determining  the  rights,  it 
is  a  judicial  proceeding,  or  the  exercise  of  a 
judicial  function.  People  ex  rel.  Rem  v. 
Chase,  165  111.  527,  46  N.  E.  454,       36:  105 

226.  No  grant  of  judicial  power,  in  viola- 
tion of  Wyo.  Const,  art.  2,  §  1,  providing  for 
three  departments  of  government  and  that 
one  department  shall  exercise  no  powers 
properly  belonging  to  another,  or  of  art. 
5,  §  1,  vesting  the  judicial  power  of 
the  state  in  certain  courts,  is  made 
by  an  act  creating  a  board  of  con- 
trol of  the  waters  of  the  state,  endowing  it 
with  power  to  adjudicate  and  determine  pri- 
orities of  rights  to  the  use  of  water,  and 
providing  for  an  appeal  from  its  decision  to 
the  courts,  since  the  power  exercised  is  pri- 
marily administrative,  the  proceeding  is  a 
purely  statutory  one,  inaugurated  in  each 
instance  by  the  board,  and  no  attempt  is 
made  to  devest  the  courts  of  any  jurisdic- 
tion granted  by  the  Constitution.  Farm  In- 
vestment Co.  V.  Carpenter,  9  Wyo.  110,  61 
Pac.  258,  50:  V47 


574 


CONSTITUTIONAL  LAW,  L  d,  5. 


227.  Judicial  power  is  not  delegated  to 
civil  service  commissioners  by  giving  them 
authority  to  investigate  complaints  against 
officers  and  matters  as  to  the  enforcement 
of  the  civil  service  law,  with  the  right  to  ad- 
minister oacns  and  secure  the  attendance  of 
witnesses  by  subpoena,  and  providing  that  a 
court  may  compel  obedience  to  such  sub- 
poena. People  ex  rel.  Akin  v.  Ejpley,  171  111. 
44,  49  N.  E.  229,  41 :  775 

228.  Judicial  powers  are  not  delegated  to  a 
special  jury  commissioner  by  providing  that 
he  shall  eliminate  from  the  jury  list  persons 
declared  by  law  to  be  unfit  or  disqualified  to 
sit  in  criminal  cases,  and  thus  prepare  a 
list  from  which  a  panel  of  fit  and  impartial 
jurors  may  be  chosen.  People  v.  Dunn,  157 
N.  Y.  528,  52  N.  E.  572,  43:  247 

229.  No  grant  of  judicial  power  in  viola- 
tion of  Wis.  Const.  §  2,  art.  7,  providing 
that  the  judicial  power  of  the  state,  both  as 
to  matters  of  law  and  equity,  shall  be  vested 
in  certain  specified  courts,  is  made  by  Wis. 
Rev.  Stat.  1898,  §  1077a,  providing  for  the 
appointment  of  commissioners  by  tiie  eircuii 
judge  of  any  county,  on  petition,  to  roview 
tlio  aonortionment  for  the  year  of  countj' 
and  state  taxes  and  correct  it  if  justice  so 
)■  '(iinres.  !'n  1  iiiakinix  their  decision  final,  the 
enactment  of  such  a  law  being  a  legitimate 
exercise  of  the  power  possessed  by  the  leg- 
islature over  the  whole  subject  of  taxation. 
State  ex  rel.  Ellis  v.  Thome,  112  Wis.  81, 
87  N.  W.  797,  55:  956 
In  contempt  proceeding. 

230.  To  try  a  question  of  contempt  and 
adjudge  punishment  is  an  exercise  of  judi- 
cial power,  which  the  legislature  cannot  vest 
in  a  notarv  public.  Re  Huron,  58  Kan.  152, 
48  Pac.  574,  36:  822 

231.  A  statute  attempting  to  confer  on 
county  attorneys  t^he  power  to  commit  wit- 
nesses for  contempt  on  account  of  a  refusal 
to  be  sworn  or  testify  on  an  examination  as 
to  an  alleged  offense  is  unconstitutional,  as 
the  power  is  judicial  in  its  nature.  Re  Sims, 
54  Kan.  1,  37  Pac.  135,  25:  110 

232.  The  power  to  fine  and  imprison  for 
contempt  is  essentially  a  judicial  one,  and 
an  attempt  to  confer  it  on  a  state  board  of 
tax  commissioners  who  have  power  to  take 
testimony  is  in  violation  of  a  constitutional 
provision  that  no  person  charged  with  official 
duties  under  either  the  legislative,  executive, 
or  judicial  department  of  the  government, 
shall  exercise  any  of  the  functions  of  anoth- 
er, since  such  board  belongs  to  the  executive 
or  administrative  department.  Langenberg 
V.  Decker,  131  Ind.  471,  31  X.  E.  190,  16:  108 
To  board  of  irrigation. 

233.  The  sections  of  the  Nebraska  irriga- 
tion act  of  1895,  chap.  69,  creating  a  state 
hoard  of  irrigation,  are  not  unconstitution- 
al, as  conferring  judicinl  powers  on  execu- 
tive officers,  as  the  primary  object  of  such 
board  is  for  the  purpose  of  supervising  the 
appropriation,  distribution,  and  diversion  of 
water,  which  is  an  administrative,  ratlier 
than  a  judicial,  fiirrt'on.  Crawford  Co.  v. 
Hall,  67  Neb.  325,  93  N.  W.  781,  00:  889 
To  prison  board. 

234.  Judicial    power    is    not    given    to    a 


board  of  managers  of  a  reformatory  by  an- 
thorizing  them  to  shorten  the  term  of  serv- 
ice of  a  convict  in  case  of  his  reformation, 
where  his  sentence  is  indeterminate  between 
the  maximum  and  minimum  prescribed  bv 
statute.  Miller  v.  State,  149  Ind.  607,  49  N. 
E.  894,  40:  109 

To  county  recorder  or  registrar. 

235.  An  attempt  to  confer  judicial  author- 
ity on  the  county  recorder  in  violation  of 
Ohio  Const,  art.  4,  §  1,  is  made  by  Ohio  act 
April  27,  1896,  for  the  registration  of  land 
titles,  by  giving  him  authority  to  determine 
the  fact  fhat  a  mortgage  has  been  dis- 
charged or  that  a  lien  has  become  inopera- 
tive, and  to  enter  those  facts  on  the  reeordj, 
and  also  to  correct  memorials  made  or  issued 
by  mistake  if  the  rights  of  bona  fide  pur- 
chasers or  lien  holders  have  not  intervened. 
State  ex  rel.  Monnett  v.  Guilbert,  56  Ohio 
St.  575,  47  N.  E.  551,  38:  519 

236.  The  provisions  of  the  "Illinois  Tor- 
rens  law"  (111.  Laws  1895,  p.  82)  for  an  ex- 
amination by  the  recorder  of  deeds  or  reg- 
istrar of  titles,  of  the  facts  in  relation  to  the 
title  to  land  and  the  issuing  of  a  certificate 
of  ownership,  constitute  an  unconstitutional 
delegation  of  judicial  power,  even  if  the  ef- 
fect of  such  certificate  is  only  to  start  the 
running  of  a  statute  of  limitations,  as  the 
decision  that  the  property  shall  be  brought 
under  the  provisions  of  the  act,  so  that  an 
adverse  claimant  must  assert  his  rights  in 
the  courts  within  five  years,  is  a  judicial 
decision.  People  ex  rel.  Kern  v.  Chase,  165 
111.  527,  46  N.  K  454,  36:  105 

237.  Judicial  duties  are  not  conferred  on 
registrars  of  land  titles,  in  violation  of 
Minn.  Const,  art.  3,  by  Minn,  Laws  1901, 
chap.  237,  providing  for  the  Torrens  system 
of  registering  land  titles,  since  the  act  ex- 
pressly provides  that  all  acts  performed  by 
registrars  shall  be  performed  under  rules  and 
instructions  established  and  given  by  the 
district  court  having  jurisdiction  of  the 
county  in  which  they  act.  State  ex  rel. 
Douglas  V.  Westfall,  85  Minn.  437,  89  N.  W. 
175,  57:297 

238.  Judicial  power  is  not  conferred  upon 
a  registrar  of  deeds,  within  the  prohibition 
of  a  constitutional  provision  separating  the 
departments  of  government  by  a  statute 
requiring  him  to  make  certain  entries  when 
it  appears  to  him  that  the  person  intending 
to  create  a  charge  on  property  "has  the  title 
and  ri^ht  to  create  such  charge,  and  that 
the  person  in  whose  favor  it  is  to  be  made 
"is  entitled  by  the  terms  of  the  act  to  have 
the  same  registered." — especially  where  a 
party  aggrieved  is  given  the  right  to  apply 
to  a  court  of  equity  for  relief.  People  ex 
rel.  Deneen  v,  Simon,  176  111,  165,  52  N,  E, 
910,  44:  801 

239.  A  statute  permitting  a  registrar  of 
deeds  to  record  a  transfer  of  land  held  in 
trust,  upon  the  written  opinion  of  two  ex- 
aminers that  the  transfer  is  in  accordance 
with  the  true  intent  and  moaning  of  the 
trust,  which  registration  shall  be  conclusive 
in  favor  of  the  grantee,  merely  abrogates 
tlio  rule  which  requires  the  purchaser  of 
trust  property  to  see  to  the  application  of 


CONSTITUTIONAL  LAW,  1.  e.  1,  2. 


575 


the  purchase  money,  and  does  not  confer  ju- 
dicial power  upon  the  registrar.  Id. 

240.  i'he  power  of  the  assistant  recorder 
to  register  titles  given  by  Mass.  Stat.  1898, 
ohap.  562,  as  amended  by  Stat.  1899,  chap. 
131,  §  8,  under  which  he  makes  the  registra- 
tion "in  accordance  with  the  rules  and  in- 
structions of  the  court,"  is  not  a  judicial 
power  conferred  upon  a  noniudicial  officer, 
but  is  merely  ministerial,  and  the  registra- 
tion is  the  act  of  the  court.  Tyler  v.  Judges 
of  Court  of  Registration,  175  Mass.  71,  55 
N.  E.  812,  51:  433 
To  factory  inspector, 

241.  Judicial  power  is  not  delegated  to  a 
factory  inspector  by  permitting  him  to  ex- 
ercise judgment  in  determining  the  number, 
location,  material,  and  construction  of  the 
fire  escapes  to  be  placed  on  buildings.  Arms 
V.  Ayer,  192  111.  601,  61  N.  E.  851,       58:  277 

242.  Legislative  power  is  not  unlawfully 
delegsited  to  a  factory  inspector  by  giving 
him  discretion  as  to  the  number,  location, 
material,  and  construction  of  fire  escapes  to 
be  placed  on  buildings,  where  the  statute 
itself  provides  for  the  escapes,  designntes  the 
buildings  to  which  they  are  to  be  attached, 
and  requires  that  they  afford  an  effective 
means  of  escape  to  all  occupants  who  for 
any  reason  are  unable  to  use  the  ladders  or 
stairs.  Id. 

e.  Separation  of  Powers. 
1.  In  General. 

Judicial  Power  to  Decide  as  to  Legislative 
Acts,  see  Courts,  I.  c,  2. 

Rules  of  Decision  in  Determining  Constitu- 
tionality of  Statutes,  see  Courts,  V.  c. 

As  to  Pardoning  Power,  see  Criminal  Law, 
IV.  h. 

As  to  Power  of  Legislature  Generally,  see 
Legislature,  II. 

See  also  Municipal  Corporations,  391. 

For  Editorial  Notes,  see  infra.  III.  §  4. 

243.  The  distribution  of  the  powers  of  the 
state,  by  the  Constitution,  to  the  legislative, 
executive,  and  judicial  departments,  operates 
by  implication  as  an  inhibition  against  the 
imposition,  upon  either,  of  those  powers 
which  distinctively  belong  to  one  of  the 
other  departments.  Zanesville  v.  Zanesville 
Teleg.  &  Teleph.  Co.  64  Ohio  St.  67,  59  N.  E. 
781,  52:  150 

244.  The  constitutional  provision  in  regard 
to  the  distribution  of  the  powers  of  govern- 
ment into  three  departments,  and  forbid- 
ding the  exercise  1  '  an  officer  of  one  depart- 
ment of  any  act  operly  belonging  to  an- 
other, was  not  intended  to  declare  that  every 
act  pertaining  to  the  government  and  the 
regulation  of  the  social  and  property  rights 
of  the  citizen  should  be  exercised  exclusively 
by  the  legislative,  executive,  or  judicial  de- 
partment, or  some  member  of  it,  according 
as  thQ  act  possessed  a  legislative,  executive, 
or  judicial  character.  Fox  v.  McDonald,  101 
Ala.  51,  13  So.  416,  21:529 

245.  The  incapacity  of  the  legislature  to 
execute  a  power  which  is  essentially  and 
merely  a  judicial  power,  and  of  the  judiciary 
to  execute  a  power  which  is  essentially  and 


merely  a  legislative  power,  as  well  as  the 
limitation  of  the  meaning  of  legislative  pow- 
er by  force  of  certain  primary  principles  of 
government  fairly  embodied  in  the  Constitu- 
tion, and  by  the  necessities  involved  in  the 
separation  and  independence  of  distinct  de- 
partments of  government,  is  fundamental  to 
the  very  existence  of  constitutional  govern- 
ment as  established  in  the  Linited  States. 
Norwalk  Street  R.  Co.'s  Appeal,  60  Conn. 
576,  37  Atl.  1080,  38  Atl.  708,  39:  794 

246.  A  su{>erior  court  or  judge  thereof  can- 
not validly  exercise  a  power  which  is  not 
"a  judicial  power"  within  the  meaning  of 
the  Constitution.  Id. 

247.  An  original  application  to  a  superior 
court  or  judge  thereof  for  the  approval  and 
adoption  or  modification  of  a  plan  for  the 
location  and  construction  of  a  street  rail- 
way, including  the  determination  of  the 
streets  to  be  occupied  and  the  location  as  to 
grade  and  center  line  of  the  street,  as  well 
as  changes  to  be  made  in  the  street  or  kind 
and  quality  of  track  to  be  used,  the  motive 
power  and  method  of  applying  it,  does  not 
call  for  the  exercise  of  a  judicial  power  with- 
in the  meaning  of  the  Constitution,  although 
the  application  is  called  an  appeal  and  is 
made  after  the  refusal  or  neglect  of  local  au- 
thorities to  give  notice  of  their  decision  on 
the  plan  within  sixty  days  after  it  is  pre- 
sented to  them;  and  this  is  by  statute 
deemed  to  be  a  refusal  on  their  part  to  ap- 
prove and  accept  the  plan.  Id. 

248.  In  granting  an  injunction  to  pro- 
hibit ticket  brokers  from  violating  the 
rights  of  railroad  companies  in  contracts 
represented  by  special  nontransferable  tick- 
ets to  be  issued  by  them,  the  court  does  not 
prescribe  a  rule  of  civil  conduct,  nor  invade 
the  prerogative  of  the  legislature,  nor  es- 
tablish government  by  injunction.  Sdhubach 
V.  McDonald,  179  Mo.  163,  78  S.  W.  1020, 

65:  136 

2.  Encroachment  on  Judicial  Power. 

Delegation  of  Judicial  Power,  see  supra,  I. 

d,  5. 
Abridging  Power  of  Court  as  to  Contempt, 

see  Contempt,  83-87. 
Relation  of  Court  to  Other  Departments  of 

Government,  see  Courts,  I.  c. 
By  Governor  Ordering  Transfer  of  Convict, 

see  Criminal  Law,  238. 
legislative  Power  as  to  Courts,  see  Courts, 

I.  e. 
See  also  supra,  232,  245,  247;  infra,  925,  949. 
For  Editorial  Notes,  see  infra.  III.  §§4,  12, 

249.  The  fact  that  a  power  is  conferred  by 
statute  on  a  court  of  justice,  to  be  exercised 
by  it  in  the  first  instance  in  a  proceeamg  in- 
stituted therein,  is,  itself,  of  controlling  im- 
portance as  fixing  the  judicial  character  of 
the  power,  and  is  decisive  in  that  respect, 
unless  it  is  reasonably  certain  that  the  pow- 
er belongs  exclusively  to  the  legislative  or 
the  executive  department.  Zanesville  v. 
Zanesville  Teleg.  &  Teleph.  Co.  64  Ohio  St. 
67,  59  N.  E.  781,  52:  150 

250.  Where  the  law  confers  a  right  and 
autihorizes  an  application  to  a  court  of  ju»- 


576 


CONSTITUTIONAL  LAW,  L  e,  3. 


tice  for  the  enforcement  of  that  right,  the 
proceeding  upon  such  application  is  the  ex- 
ercise of  a  judicial  function,  though  the  or- 
der or  judgment  authorized  be  of  such  a  na- 
ture that  it  can  onlj-  be  performed,  or  its 
execution  enforced,  progressively  during  a 
future  period.  Id. 

251.  The  enactment  of  a  statute  is  a  usur- 
pation of  a  judicial  power  where  it  adjudi- 
cates an  act  unlawful  and  presumptively  in- 
jurious and  dangerous  which 'is  not  and  can- 
not be  made  to  be  so  without  a  violation  of 
constitutional  rights,  and  where  it  impera- 
tively commands  the  court  to  enjoin  such  ac- 
tion without  proof  that  any  injury  or  danger 
has  been,  or  will  be,  caused  bv  it.  Janesville 
V.  Carpenter.  77  Wis.  288,  46  N.  W.  128, 

8:  808 

252.  A  statute  declaring  or  reciting  a  fact 
which  the  legislature  has  ascertained  by  in- 
vestigation in  order  to  apply  the  proper  rem- 
edy by  legislation  is  not  a  usurpation  of  ju- 
dicial power.  Townsend  v.  State,  147  Ind. 
624,  47  N.  E.  19,  37:  294 

253.  The  constitutional  separation  of  the 
departments  of  government  is  not  violated 
by  a  statute  authorizing  circuit  courts  to 
repair  their  court  rooms.  White  County 
Comrs.  V.  Gwin.  136  Ind.  562.  36  N.  E.  237, 

22:  402 

254.  A  provision  in  an  appropriation  act, 
that  the  salary  for  a  certain  office  shall  be 
paid  to  a  certain  person  named,  and  none 
other,  and  a  statute  providing  a  penalty  for 
paying  it  to  any  other  person  than  the  one 
named,  are  absolutely  void  as  attempts  to 
exercise  judicial  powers  by  declaring  who  is 
the  legal  officer  entitled  to  the  salarv.  State 
ex  rel.  Worrell  v.  Carr,  129  Ind.  44.*28  X.  E. 
88,  13:  177 

255.  Legislative  authority  to  a  general 
guardian  of  an  infant  to  agiee  with  a  rail- 
road company  as  to  the  amount  of  damages 
for  a  right  of  way  across  the  infant's  lands, 
or  to  release  the  claim  or  right  to  such  dam- 
ages, is  not  unconstitutional  as  a  legisla- 
tive usurpation  of  judicial  power.  Louis- 
ville, N.  O.  &  T.  E.  Co.  V.  -Jordan.  69  Miss. 
939,  11  So.  111.  16:  251 

256.  A  definition  in  a  statute  of  terms 
therein  used  is  not  an  invasion  of  the  prov- 
ince of  the  courts  to  construe  statutes. 
State  V.  Schlenker,  112  Iowa.  642.  84  N.  W. 
698.  51:. 347 

257.  The  declaration,  Ijy  the  legislature, 
that  the  drainage  of  the  water  from  agricul- 
tural lands  shall  be  considered  a  public  bene- 
fit, for  which  the  power  of  eminent  domain 
may  be  exercised,  in  a  statute  providing  a 
general  plan  or  scheme  for  the  reclamation 
of  the  wet  or  mar-sh  lands  of  the  state,  does 
not  infringe  the  power  of  the  judiciary.  Sis- 
son  V.  Buena  Vista  Countv.  128  Iowa,  442, 
104  X.  W.  4.54.  '  70:  -14(1 

258.  The  judicial  province  is  not  invaded 
by  a  legislative  dcflaration  that  the  eiiii-sion 
of  dense  smoke  into  the  open  air  in  cities 
having  a  population  ot  100,000  inhabitants 
is  a  nuisance.  State  v.  Tower.  185  Mo.  79. 
84  S.  W.  10,  68:  402 

259.  The  legislature  cannot  assume  the 
right   to  pas?  upon   the  question   of  the  re- 


I  lease  of  one  committed  to  a  hospital  for 
'  criminal  insane,  and  thereby  deprive  the 
I  courts  of  their  jurisdiction  to  inquire  into 
i  the  legality  of  his  restraint.  Re  Boyett,  136 
I  X.  C.  415,  48  S.  E.  789,  67:  972 

j  259a.  There  is  no  exercise  of  judicial  pow- 
I  er  by  the  legislature  in  a  statute  providing 
j  for  the  recovery  of  a  penalty  against  a 
I  county  for  the  death  of  a  person  caused  by 

lynching.  Champaign  County  v.  Church,  62 
I  Ohio  St.  318,  57  X.  Jd.  50,        '  48:  738 

Appointment  of  commissioners. 

260.  Commissioners  "to  assist"  a  court  do 
not  usurp  judicial  functions,  or  exercise  any 

:  judicial  power,  by  taking  such  transcripts 
and  briefs  as  a  court  shall  assign  to  them, 
and  reporting  the  result  of  their  examina- 
tion thereof,  with  opinions  and  suggestions 
merely  for  the  consideration  of  the  court 
as  to  the  proper  disposition  of  the  cases. 
People  ex  rel.  Morgan  v.  Hayne,  83  Cal.  Ill, 
23  Pae.  L  '  7 :  348 

As  to  mechanics'  liens. 

261.  Pa.  act  June  17,  1887,  declaring  that 
the  acts  of  1836  and  1845  concerning  me- 
chanics' liens  shall  be  construed  to  include 
claims  for  labor  done  by  mechanics  and 
others  on  buildmgs,  no  matter  at  wliose  in- 
stance or  upon  whose  credit  it  was  done,  is 
a  violation  of  Pa.  Const,  art.  5,  §  1,  as  an 
exercise  of  judicial  powers  by  the  legisla- 
ture. Titusville  Iron  Works  v.  Keystone 
Oil  Co.  122  Pa.  627,  15  Atl.  917,  1:  361 

262.  A  statute  regarding  mechanics'  liens, 
which  provides  that  when  any  doubt  exists 
as  to  the  construction  it  shall  be  the  duty  of 
the  court  to  construe  it  so  as  to  give  the  per- 
son performing  any  labor  the  full  amount 
of  his  claim  over  and  above  costs  and  attor- 
neys' fees,  is  unconstitutional  as  invading 
the  fimetions  of  the  judiciarv.  Meyer  v. 
Berlandi.  39  Minn.  438,  40  N.  W.  513, 

1:  777 
As  to  local  option. 

263.  The  Xew  Jersey  act  "To  Regulate  the 
Sale  of  Intoxicating  Liquors,"  providing  that 
the  circuit  judge  shall  determine  whether 
the  circumstances  have  arisen  which  require 
an  election  for  the  purpose  of  adopting  the 
local  option  part  of  the  act,  and  appoint  the 
day  for  the  election,  does  not  violate  the  con- 
stitutional provision  defining  the  powers 
of  the  departments  of  government.  State, 
Paul.  Prosecutor,  v.  Gloucester  County  Cir- 
cuit Ct.  Judge  (N.  J.  Err.  &  App.)  50  N".  J. 
L.  58.5,  15  Atl.  272,  287,  1:  86 

3.  As  to  Appointment  of  Officers. 

Delegation  of  Power  as  to.  see  supra,  17fl, 
177,  189,  190. 

Local  Self-Government  as  to,  see  infra,  282- 
298. 

Appointment  of  Officers  Generally,  see  Offi- 
cers, I.  b. 

For  Editorial  Xotes,  see  infra,  III.  §  4. 

264.  The  power  to  provide  by  Islw  the 
manner  or  mode  of  making  an  appointment 
does  not  include  the  power  to  make  the  ap- 
pointment itself.  State  ex  rel.  Jameson  v. 
Denny,  118  Ind.  382,  21  N.  E.  252,         4:  79 

265.  A  statute  providing  for  the  appoint- 


CONSTITUTIONAL  LAW,  L   f. 


577 


ment,  by  the  judges  of  a  court,  of  the  mem- 
bers of  a  bridge  committee  to  have  charge  of 
the  city's  bridges,  does  not  violate  a  consti- 
tutional provision  that  persons  charged  with 
official  duties  under  one  of  the  three  de- 
partments of  government  shall  not  exercise 
powers  confided  to  either  of  the  other  de- 
partments, on  the  ground  that  the  appoint- 
ment belongs  to  the  executive  department, 
even  if  this  were  true  as  to  the  appointment 
of  officers  generally,  since  such  committee- 
men are  mere  agents  of  the  city,  and  not 
officers  within  the  meaning  of  the  Constitu- 
tion. State  ex  rel.  Sherman  v.  George,  22 
Or.  142,  29  Pac.  356,  16:  737 

266.  Under  Ind.  Const,  art.  15,  §  1,  pro- 
viding that  "all  officers  whose  appointments 
are  not  otherwise  provided  for  in  this  Con- 
stitution shall  be  chosen  in  such"  fanner  as 
now  is  or  hereafter  may  be  prescribed  by 
law,"  the  legislature  may  provide  by  law  for 
the  appointment  of  all  officers  not  provid- 
ed for  in  the  Constitution;  but  the  appoint- 
ing power  must  be  lodged  somewhere  within 
the  executive  department  of  the  government. 
Evansville  v.  State  ex  rel.  Blend,  118  Ind. 
426,  21  N.  E.  267,  4:  93 
State  ex  rel.  Jameson  v.  "Dennv,  118  Ind. 
382,  21  N.  E.  252,                            "            4:  79 

267.  The  appointment  to  office  of  a  board 
of  public  works  for  a  city  involves  the  exer- 
cise of  executive  functions,  within  the  mean- 
ing of  Ind.  Const,  art.  3,  §  1,  which  prohibits 
a  person  charged  with  official  duties  in  either 
the  legislative,  executive,  or  judicial  depart- 
ment from  exercising  any  of  the  functions 
of  another  department.  State  ex  rel.  Jame- 
son V.  Denny,  118  Ind.  382,  21  N.  E.  252, 

4:  79 

268.  The  power  to  appoint  city  commis- 
sioners, given  to  circuit  judges  by  Ind.  Rev. 
Stat.  1894,  §  3629,  although  it  is  not  strictly 
judicial,  does  not  belong  either  to  the  execu- 
tive or  the  legislative  department  of  the 
state  government,  and  therefore  is  not  with- 
in the  inhibition  of  article  3  of  the  Constitu- 
tion, which  makes  those  departments  inde- 
pendent. Terre  Haute  v.  Evansville  &  T.  H. 
R.  Co.  149  Ind.  174,  46  N.  E.  77,  37:189 

269.  The  legislature  of  Indiana  has  no 
power  to  fill  a  vacancy  occurring  in  an  office, 
whether  of  its  own  creation  or  otherwise, 
except  express  provision  therefor  can  be 
found  in  the  Constitution.  Evansville  v. 
State  ex  rel.  Blend,  118  Ind.  426,  21  N.  E.  267, 

4:  93 

270.  Associating  with  the  governor  the  au- 
ditor, treasurer,  secretary  of  state,  and  at- 
torney general,  as  a  board  for  the  purpose 
of  electing  prison  directors,  is  not  an  uncon- 
stitutional commingling  of  executive  with 
administrative  officets  in  violation  of  the 
provision  separating  the  powers  of  govern- 
ment into  three  departments,  the  legislative, 
executive,  and  judicial,  but  including  the  ad- 
ministrative in  the  executive  department. 
French  v.  State  ex  rel.  Harley,  141  Ind.  618, 
41  N.  E.  2,  29:  113 

271.  The  power  to  appoint  public  officers 
is  not  purely  an  executive  function,  but  this 
power  may  be  exercised  by  the  general  as- 
sembly, when  not  otherwise  provided  in  the 

L.R.A.  Dig.— 37. 


Constitution,  either  by  naming  a  given  per- 
son for  the  office,  or  providing  the  manner 
in  which  the  officer  shall  be  chosen;  and  tne 
general  assembly  also  has  authority  to  pro- 
vide for  the  appointment  of  a  number  of  offi- 
cers to  discharge  a  given  duty,  and  to  pro- 
vide that  vacancies  in  such  number  may  be 
filled  by  those  remaming  in  office,  thus  creat- 
ing a  self-perpetuating  body.  Americus  v. 
Perry,  114  Ga.  871,  40  S.  E.  1004,        57:  230 

f.  Local  Self -Government. 

Vested  Right  to  Maintain  Fire  Department, 

see  Fire  Department,  3. 
In   Selection   of   Uniform   Text   Books,   see 

Schools,  101-105. 
Right  of  Town  as  to,  see  Towns,  10,  11,  21. 
See  also  supra,  58;  Municipal  Corporations, 

51. 
For  Editorial  Notes,  see  infra,  III.  §   1. 

272.  An  act  of  the  legislature  will  not  be 
declared  ir^alid  by  the  courts  because  it 
abridges  the  exercise  of  the  privilege  of  lo- 
cal self-government  in  a  particular  in  regard 
to  which  such  privilege  is  not  guaranteed 
by  the  Constitution.  Com.  v.  Plaisted,  148 
Mass.  375,  19  N.  E.  224,  2:  142 

273.  There  is  no  inherent  right  of  local 
self-government  in  municipal  corporations, 
and  how  far  they  shall  be  given  this  right 
is  a  matter  addressed  solely  to  legislative 
discretion.  Americus  v.  Perry,  114  Ga.  871, 
40  S.  E.   1004,  57:230 

274.  The  right  of  local  self-government 
in  cities  and  towns  was  not  surrendered 
upon  the  adoption  of  the  Constitution  of 
Nebraska,  and  cannot  be  taken  away  by 
the  legislature.  State  ex  rel.  Smvth  v. 
Moores,  55  Neb.  480,  76  N.  W.  175,      41:  624 

275.  The  right  of  local  self-government 
which  existed  prior  to  the  adoption  of  the 
Constitution  of  Indiana,  not  being  express- 
ly yielded  up  and  granted  to  any  of  the  de- 
partments of  the  state  government  by  that 
Constitution,  which,  on  the  contrary,  is 
framed  with  reference  to  the  then  existing 
local  governments,  still  belongs  to  the  people 
of  the  municipalities  of  the  state.  State 
ex  rel.  Jameson  v.  Denny,  118  Ind.  382,  21 
N.  E.  252,  4:  79 
Evansville  v.  State  ex  rel.  Blend,  118  Ind, 
426,  21  N.  E.  267,  4:  93 
State  ex  rol.  Holt  v.  Denny,  118  Ind.  449, 
21  N.  E.  274,                                                4:  65 

276.  The  legislature  may  select  any 
means  for  the  administration  of  a  munici- 
pal government  which  it  thinks  best  adapted 
to  that  end,  and  may  provide  for  the  elec- 
tion of  municipal  officers  by  the  people,  or 
authorize  any  officers  or  persons  to  fill  the 
offices  by  appointment.  People  ex  rel.  Akin 
V.  Kipley,  171  111.  44,  49  N.  E.  229,     41:  775 

277.  A  statute  providing  a  system  of 
government  for  cities  cannot  be  held  un- 
constitutional for  violating  the  spirit  of 
the  Constitution,  or  that  general  intent 
which  preserves  to  the  people  the  right  of 
local  self-government.  Com.  ex  rel.  Elkin 
V.  Moir,  199  Pa.  534,  49  Atl.  351,        53:  837 

278.  No  guaranty  of  the  right  of  munici- 


678 


CONSTITUTIONAL  LAW,  L  f. 


pal  corporations  to  local  self-government  is 
made  by  those  sections  of  the  Georgia  Bill 
of  Rights  which  declare  that  all  govern- 
ment originates,  of  right,  with  the  people; 
that  public  officers  are  the  servants  of  the 
people  and  at  all  times  amenable  to  them; 
that  the  people  of  the  state  have  the  in- 
herent, sole,  and  exclusive  right  of  regulat- 
ing their  internal  government  and  the  police 
thereof;  and  that  the  enumeration  of  rights 
in  the  Constitution  shall  not  be  construed 
to  deny  to  the  people  any  inherent  rights 
which  they  may  have  hitherto  enjoyed, — 
although  prior  to  the  adoption  of  the  Con- 
stitution municipal  corporations  had  been 
given  and  were  exercising  the  right  to  con- 
trol their  own  affairs  through  officers 
chosen  by  them.  Americus  v.  Perry,  114 
Ga.  871,  40  S.  E.  1004,  57:  230 

279.  An  act  of  the  legislature  (Kan.  Laws 
1899,  chap.  189)  arbitrarily  establishing  a 
high  school  and  requiring  the  people  of  the 
county  to  build  and  maintain  it,  without 
their  consent,  is  not  an  unconstitutional  in- 
terference with  the  right  of  local  self-gov- 
ernment. State  ex  rel.  McCausland  v.  Free- 
man, 61  Kan.  90,  58  Pac.  959,  47:  67 

280.  The  recognition,  for  the  purpose  of 
taxation,  of  distinct  property  in  special 
franchises  conferred  upon  corporations  and 
imposing  the  duty  of  assessing  the  tax 
upon  state  officers  does  not  violate  the 
right  of  local  self-government,  although 
some  of  the  franchises  are  granted  by  mu- 
nicipal corporations  and  the  local  assessors 
are  forbidden  longer  to  assess  the  tangible 
property  located  in  the  public  highways 
which  is  used  in  the  exercise  of  the  fran- 
chise; but  such  property  is  in  the  future  to 
be  assessed  by  the  state  officials  in  connec- 
tion with  the  franchise.  People  ex  rel. 
Metropolitan  Street  R.  Co.  v.  State  Bd.  of 
Tax  Comrs.  174  N.  Y.  417,  67  N.  E.  69, 

63:  884 

281.  A  statute  which  undertakes  to  place 
in  the  hands  of  a  board  of  public  works  ap- 
pointed by  the  legislature  the  exclusive 
control  of  all  the  streets,  alleys,  lanes, 
thoroughfares,  etc.,  of  each  city  of  a  certain 
size,  without  the  consent  of  those  to  be 
affected  thereby,  and  with  full  power  to 
improve,  alter,  or  change  them  in  any  man- 
ner they  may  choose,  without  any  accounta- 
bility to  anyone,  is  an  unconstitutional  in- 
terference with  local  self-government. 
State  ex  rel.  Jameson  v.  Denny,  118  Ind. 
382,  21  N.  E.  252,  4:  79 

282.  An  act  creating  a  metropolitan  board 
to  be  appointed  by  the  legislature,  with  su- 
preme control  of  the  police  and  fire  depart- 
ments of  each  city  of  a  certain  size,  with 
exclusive  authority  to  purchase  whatever  is 
necessary  for  those  departmehts,  and  charge 
the  expense  thereof  on  the  city,  is  in  vio- 
lation of  the  Constitution  of  Indiana,  as 
being  an  unlawful  attempt  to  deprive  the 
cities  of  local  self-government.  Evansville 
V.  State  ex  rel.  Blend,  118  Ind.  426,  21  N.  E. 
267,  4:  93 

State  ex  rel.  Holt  v.  Denny,  118  Ind. 
449,  21  N.  E.  274,  4:  65 


As  to  appointment  of  officers. 

As   to    Appointment   of   Officers   Generally, 

see  supra,  I.  e,  3;  Officers,  I.  b. 
Delegation  of  Power  as  to,  see  supra,  176, 

177,  189,  190. 
See  also  supra,  276,  282;  Civil  Service,  1. 

283.  The  general  assembly  of  Indiana  has 
no  right  to  appoint  officers  to  manage  and 
administer  municipal  affairs.  State  ex  rel. 
Holt  v,  Denny,  118  Ind.  449,  21  N.  E.  274, 

4:  65 

284.  An  act  providing  a  system  of  govern- 
ment for  a  city  is  not  rendered  unconsti- 
tutional by  the  fact  that,  as  a  temporary 
expedient  to  prevent  a  gap  in  the  govern- 
ment, the  governor  is  given  power  to  ap- 
point a  temporary  executive,  the  time  of 
his  appointment,  and  therefore  that  of  the 
taking  effect  of  the  act,  being  left  to  his 
discretion.  Com.  ex  rel.  Elkin  v.  Moir,  199 
Pa.  534,  49  Atl.  351,  53:  837 

285.  An  act  attempting  to  confer  upon  the 
general  assembly  the  duty  of  appointing 
or  electing  persons  as  members  of  a  board 
of  public  works,  which  has  exclusive  charge 
of  the  streets,  improvements,  etc.,  of  a 
municipal  corporation,  is  unconstitutional 
and  void,  and  is  not  authorized  by  article  15, 
§  1,  of  the  Indiana  Constitution,  which  pro- 
vides that  "all  officers  whose  appointment  is 
not  otherwise  provided  for  in  this  Consti- 
tution shall  be  chosen  in  such  manner  as 
now  is  or  hereafter  may  be  prescribed  by 
law."  State  ex  rel.  Jameson  v.  Denny,  118 
Ind.  382,  21  N.  E.  252,  4:  79 

286.  The  power  to  designate  the  local 
authority  who  shall  appoint  local  officers, 
conferred  on  the  legislature  by  N.  Y. 
Const,  art.  10,  §  2,  if  the  election  or  ap- 
pointment of  such  officers  is  not  provided 
for  by  that  Constitution,  does  not  author- 
ize the  enactment  of  N.  Y.  Laws  1896,  chap. 
427,  providing  that  the  police  board  of  the 
city  of  Albany  shall  consist  of  four  com- 
missioners of  whom  two  shall  belong  to  the 
political  party  having  the  highest  represen- 
tation in  the  common  council,  and  the  other 
two  to  the  party  having  the  next  highest 
representation  therein,  and  that  each  mem- 
ber of  the  council  shall  be  entitled  to  vote 
for  only  two  of  such  officers,  since  the  mi- 
nority which  is  thus  given  power  to  ap- 
point two  of  the  commissioners  is  not  a 
city  authority  within  the  meaning  of  the 
Constitution.  Rathbone  v.  Wirth,  150  N.  Y. 
459,  45  X.  E.  15,  34:  408 

287.  The  right  of  local  self-government 
is  violated  by  N.  Y.  Laws  1896,  chap.  427, 
which  prevents  majority  rule  in  the  selec- 
tion of  local  officers  by  providing  that  each 
member  of  the  common  council  shall  vote 
for  but  two  of  the  four  police  commissioners 
to  be  chosen,  and  that  no  person  shall  be 
eligible  to  the  office  who  does  not  belong  to 
the  political  party  having  the  highest  or 
next  highest  representation  in  the  council, 
and  that  in  case  the  board  cannot  agree  in 
continuing  in  office  the  present  force  before 
a  certain  date  the  police  force  shall  cease  to 
e.xist,  except  a  certain  person  who  was 
senior  captain  on  a  specified  day,  who  shall 


CONSTITUTIONAL  LAW,   I.  g. 


5791 


be    chief   of   police    until    the    board    shall 
agree,     [Per  Gray  and  O'Brien,  J  J.]         Id. 

288.  There  is  no  invasion  of  the  right  of 
local  self-government  by  a  statute  provid- 
ing for  appointment  of  police  commission- 
ers by  state  officers.  State  ex  rel.  Terre 
Haute  V.  Kolsem,  130  Ind.  434,  29  N.  E. 
595,  14:  566 

289.  A  probate  judge  may  be  constitution- 
ally authorized  to  appoint  police  commis- 
sioners for  a  city.  Fox  v.  McDonald,  101 
Ala.  51,  13  So.  416,  21:529 

290.  The  establishment  of  a  board  of  po- 
lice commissioners  for  the  city  of  Newport 
by  R.  I.  Pub.  Laws  1900,  chap.  804,  is  not 
unconstitutional  on  the  ground  of  interfer- 
ence with  the  right  of  that  city  to  local 
self-government,  so  far  as  tjie  appoint- 
ment of  a  chief  of  police  by  said  commis- 
sioners is  concerned,  since  a  police  officer 
does  not  perform  a  purely  municipal,  but  a 
state,  duty.  Newport,  v.  Horton,  22  R.  I. 
196,  47  Atl.  312,  50:  330 

291.  An  act  creating  a  board  of  police 
commissioners  which  shall  have  exclusive 
control  of  the  police  officers  of  a  city  (Ga. 
Acts  1889,  p.  961),  naming  the  first  mem- 
bers of  the  board,  prescribing  the  manner 
in  which  their  successors  shall  be  chosen, 
and  setting  forth  their  powers  and  duties,  is 
not  an  unconstitutional  deprivation  of  local 
self-government,  but  is  a  proper  exercise  of 
legislative  power.  Americus  v.  Perry,  114 
Ga.  871,  40  S.  E.  1004,  57:  230 

292.  The  creation  of  a  board  of  police 
commissioners  by  Wis.  Laws  1897,  chap.  247, 
with  exclusive  authority  to  appoint  all 
members  of  the  police  force,  is  in  violation 
of  Wis.  Const,  art.  13,  §  9,  which  requires 
all  municipal  officers  not  specifically,  pro- 
vided for  by  the  Constitution  to  be  elected 
by  the  voters  or  appointed  by  such  munici- 
pal authorities  as  the  legislature  may  pro- 
vide. O'Connor  v.  Fond  du  Lac,  109  Wis. 
253,  85  N.  W.  327,  53:  831 

293.  All  offices  pertaining  to  the  police 
department,  whether  now  named  or  not  by 
the  names  they  bore  prior  to  the  adoption 
of  Wis.  Const,  art.  13,  §  9,  providing  for  the 
election  of  city  officers  by  the  voters  or 
their  appointment  by  such  city  authorities 
as  the  legislature  shall  prescribe,  are  in- 
cluded within  the  scope  of  that  provision; 
and  the  legislature  is  thereby  prohibited 
from   interfering    with    such   appointments. 

Id. 

294.  An  act  of  the  legislature,  so  far  as  it 
expressly  or  by  its  effect  extends  the  term 
of  office  of  a  member  of  the  police  force  of 
a  city  beyond  that  for  which  he  was  spe- 
cifically elected  or  appointed  by  legitimate 
municipal  authority,  so  as  to  keep  such  of- 
ficer in  place  for  any  period  of  time  regard- 
less of  such  authority,  is  in  violation  of 
Wis..  Const,  art.  13,  §  9,  providing  that 
such  officers,  when  not  specifically  provided 
for  by  the  Constitution,  shall  be  elected  by 
the  voters  or  appointed  by  such  city  author- 
ities as  the  legislature  may  designate.     Id. 

295.  The  attempt  to  confer  authority  up- 
on the  governor  to  appoint  fire  and  police 


commissioners  in  cities  of  the  metropolitan 
class  which  is  made  by  Neb.  Laws  1897, 
chap.  10  (Neb.  Comp.  Stat.  chap.  12o),  is 
void  as  an  unlawful  attempt  to  deprive  the 
people  of  such  cities  of  the  right  of  local 
self-government.  State  ex  rel.  Smyth  v. 
Moores,  55  Neb.  480,  76  N.  W.  175,  41:  624 

296.  No  unconstitutional  deprivation  of 
local  self-government  is  made  by  Neb. 
Comp.  Stat.  chap.  12a,  §  169,  creating  a 
board  of  fire  and  police  commissioners  for 
cities  of  the  metropolitan  class,  and  placing 
the  power  of  appointment  thereto  in  the 
governor,  since  the  power  to  create  munici- 
pal corporations,  which  is  vested  in  the 
legislature,  implies  the  power  to  impose 
upon  them  such  limitations  as  the  legisla- 
ture may  see  fit.  Redell  v.  Moores,  63  Neb. 
219,  88  N.  W.  243,  55:  740 

297.  The  fundamental  rights  of  a  munici- 
pality are  infringed  by  a  statute  authoriz- 
ing the  governor  to  appoint  a  board  which 
shall  have  control  of  its  fire  department 
and  matters  relating  to  fire  alarm,  tele- 
graph, fire  escapes,  inspection  of  buildings, 
boilers,  market  places,  and  food,  and  power 
to  purchase  supplies  and  apparatus,  appoint 
officers  and  employees,  and  fix  their  com- 
pensation. State  ex  rel.  Geake  v.  Fox,  158 
Ind.  126,  63  N.  E.  19,  56:  893 

298.  The  establishment  and  control  of  a 
water-supply  system  is  a  matter  that  per- 
tains to  the  municipality,  and  the  legis- 
lature cannot  take  the  management  of  the 
system  away  from  the  appointees  of  the 
municipality,  and  vest  it  in  persons  for 
whose  selection  it  provides.  State  ex  rel. 
White  V.  Barker,  116  Iowa,  96,  89  N.  W. 
204,  57:  244 
As  to  salary  of  officers. 

299.  The  legislature  cannot  fix  the  salaries 
of  firemen  employed  by  municipalities,  al- 
though there  is  no  limitation  on  such  power 
in  the  Constitution,  since  that  is  a  matter 
of  local  government  never  delegated  to  the 
legislature.  Lexington  v.  Thompson,  113 
Ky.  540,  68  S.  W.  477,  57:  775 

g.  Functions  and  Powers  of  State. 

See  also  infra,  II.  c,  2. 

300.  Powers  of  a  state  government  em- 
brace all  that  are  not  forbidden,  while  those 
of  the  national  government  consist  of  those 
delegated.  Holden  v.  Hardy,  14  Utah,  71, 
46  Pac.  756,  37:  103 
[Aflf'd  by  the  Supreme  Court  of  the  United 
States  in  169  U.  S.  366,  42  L.  ed.  780, 
18  Sup.  Ct.  Rep.  383.] 

301.  The  constitutional  provision  that 
"the  state  shall  never  contract  any  debts 
for  works  of  internal  improvement  or  be 
a  party  in  carrying  on  such  works"  prevents 
a  state  from  owning  and  operating  an  ele- 
vator or  warehouse  for  the  public  storage 
of  grain,  or  any  other  kind  of  public  works 
excepting  those  used  by  and  for  the  state 
in  the  performance  of  its  governmental 
functions.  Rippe  v.  Becker,  56  Minn.  100, 
57  N.  W.  331,  22:  857 

302.  The  state  cannot  embark  in  any 
trade  which  involves  the  purchase  and  sale 


680 


CONSTITUTIONAL  LAW,  L  h,  n.  a,  1. 


of  any  article  of  commerce  for  profit,  even 
in  the  absence  of  express  provision  in  the 
Constitution  against  it.  McCullough  v. 
Brown,  41  S.  C.  220,  19  S.  E.  458,      23:  410 

303.  The  power  of  the  executive  and  ju- 
dicial departments  in  a  state  government 
is  a  grant,  not  a  limitation,  while  the  pow- 
ers of  the  legislative  department  are  abso- 
lute except  as  restricted  and  limited  by 
the  Constitution.  People  ex  rel.  Richard- 
son v.  Henderson,  4  Wyo.  535,  35  Pac.  517, 

22:  751 

h.  Abandonment  of  Power. 

304.  Nonuser  will  not  defeat  a  power  to 
exercise  rights  _  expressly  delegated  in  a 
written  constitution.  MePherson  v.  Black- 
er, 92  Mich.  377,  52  N.  W.  469,  16:  475 


II.    Rights    of    Persons    and    Property. 

a.  Equal  Protection  and  Privileges;  Abridg- 
ing Immunities  and  Privileges. 

1.  In  General. 

Preference  of  Veterans  under  Civil  Service 
Laws,  see  Civil  Service,  13-19. 

County  Organization  as  Special  Privilege, 
see  Counties,  1. 

Discrimination  as  to  Distribution  of  Circu- 
lars and  Advertisements,  see  Mimicipal 
Corporations,  265. 

Special  and  Local  Legislation,  see  Statutes, 

I-  g- 
Discrimination  in  Water  Rates,  see  Waters, 

605-610. 
See  aiso  supra,  69-71,  320;   infra,  617,  629, 

793,  937,  938;  Civil  Rights. 
For  Editorial  Notes,  see  infra.  III.  §  7. 

304a.  A  city  ordinance  which  applies 
alike  to  all  citizens  under  like  circum- 
stances is  not  open  to  the  objection  that 
it  discriminates  between  citizens.  Rich- 
mond V.  Dudley  (Ind.)  No  OflF.  Rep.  26  N.  E. 
184,  10:  187 

304b.  An  ordinance  which  applies  alike 
to  all  persons,  firms,  or  corporations  en- 
gaged in  the  business  legislated  against  is 
not  discriminatory.  Crowley  v.  Ellsworth, 
114  La.  308,  38  So.  199,  69:  276 

305.  A  law  which  applies  alike  to  all  per- 
sons under  like  circumstances  and  condi- 
tions does  not  deny  to  any  the  equal  pro- 
tection of  the  law.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Backus,  133  Ind.  513,  33  N.  E. 
421,  18:  729 

306.  A  law  is  not  general  because  it  oper- 
ates upon  all  within  a  class  unless  there 
is  a  substantial  reason  why  it  is  made  to 
operate  upon  that  class  only,  and  not  gen- 
erally upon  all.  Ex  parte  Jentzsch,  112 
Cal.  468,  44  Pac.  803,  32:  6G4 

307.  Classification  of  persons  by  a  stat- 
ute which  restricts  one  class  only  must  not 
be  arbitrary  or  unreasonable,  but  must 
rest  upon  some  difference  which  bears  a 
reasonable  and  just  relation  to  the  act  in 
respect  to  which  the  classification  is  pro- 
posed. Luman  v.  Hitching  Bros.  Co.  90  ild. 
14,  44  AtL  1051,  46:  393 


308.  A  statute  that  operates  equally  up- 
on all  who  come  within  the  class  to  be  af- 
fected, embracing  all  persons  who  are  or 
may  be  in  like  situation  and  circumstances, 
and  making  a  classification  which  is  rea- 
sonable and  based  upon  a  real  distinction, 
and  not  unjust,  capricious,  or  arbitrary, 
does  not  violate  the  constitutional  require- 
ment of  uniform  operation  of  laws.  State 
V.  Hogan,  63  Ohio  St.  202,  58  N.  E.  572, 

52:  863 

309.  Legislation  intended  to  affect  a  par- 
ticular class,  and  not  the  public  at  large, 
must  extend  to  and  embrace  equally  all 
persons  who  are  or  may  be  in  the  like 
situation  and  circumstances;  and  the  clas- 
sification must  be  natural  and  reasonable, 
not  arbitrary  and  capricious.  Sutton  v. 
State,  96  Tenn.  696,  36  S.  W.  697,       33:  589 

310.  Legislation  which  affects  alike  all 
persons  pursuing  the  same  business,  under 
the  same  conditions,  is  not  such  class  legis- 
lation as  is  prohibited  by  the  Constitution 
of  the  United  States  or  of  Louisiana.  State 
V.  Schlemmer,  42  La.  Ann.  1166,  8  So.  307, 

10:  135 

311.  A  statute  which  may  constitution- 
ally operate  upon  certain  persons  or  in  cer- 
tain cases,  is  not  to  be  held  unconstitution- 
al merely  because  there  may  be  persons  to 
whom  or  cases  in  which  it  cannot  consti- 
tutionally apply;  but  it  is  to  be  construed 
not  to  applv  to  such  persons  or  cases.  State 
V.  Smiley,  65  Kan.  240,  69  Pac.  199,   67:  903 

312.  The  right  of  a  citizen  to  the  equal 
protection  of  the  law  cannot  be  trampled 
under  foot  under  the  disguise  of  a  police 
regulation.  State  v.  Walsh,  136  Mo.  400, 
37   S.   W.   1112,  35:  231 

313.  The  provision  of  Ohio  Const,  art.  2, 
§  26,  that  all  laws  of  a  general  nature  shall 
have  a  uniform  operation  throughout  the 
state,  does  not  guarantee  the  general  pro- 
tection of  all  the  inhabitants  of  the  state, 
but  only  that  such  laws  shall  be  in  force 
in  all  parts  of  the  state.  State  ex  rel. 
Schwartz  v.  Ferris,  53  Ohio  St.  314,  42  N.  E. 
427,  30:  218 

314.  The  consideration  of  services  ren- 
dered to  the  public,  within  the  meaning  of 
article  6  of  the  Massachusetts  Declaration 
of  Rights,  denying  any  other  title  than 
such  services  to  exclusive  privileges,  has 
reference  to  services  to  be  rendered  to  the 
public  thereafter,  and  not  to  past  services. 
Brown  v.  Russell,  166  Mass.  14,  43  N.  E. 
1005,  '  32:  253 

315.  An  ordinance  does  not  violate  the 
constitutional  law  of  "equality"  because  it 
applies  to  one  village  of  the  state  only. 
Summerville  v.  Pressley,  33  S.  C.  56,  11  S. 
E.  545,  8:  854 
As  to  women. 

As  to  Right  of  Women  to  Vote  Generally, 

see  Elections,  21-25. 
Who  May  Object  to  Exclusion  of  Women 

from  Jury,  see  Jury,  75. 
See  also  infra,  491,  551. 
For  Editorial  Notes,  see  infra,  HI.  §  7. 

316.  The  prohibition  against  employing 
women  for  more  than  ten  hours  a  day  in 
any  manufacturing,  mechanical,  or  mercan- 


CONSTITUTIONAL  LAW,  II.  a.  1. 


tile  establishnient,  hotel,  or  restaurant, 
made  by  Neb.  Comp.  Stat.  inOl,  §  245,  is 
not  unconstitutional  as  special  or  class  legis- 
lation, since  the  law  applies  alike  to  all 
women  who  shall  engage  in  labor  in  any 
o/  the  establishments  mentioned.  Wenham 
V.  State,  65  Neb.  394,  91  N.  W.  421, 

58:  825 

317.  No  unconstitutional  discrimination 
against  women  is  made  by  a  statute  which 
forbids  their  entering  wine  rooms  there  to 
be  supplied  with  liquor.  Adams  v.  Cronin, 
29  Colo.  488,  69  Pac.  590,  63:  61 

318.  The  constitutional  provision  that 
no  person  shall,  on  account  of  sex,  be  dis- 
qualified from  entering  upon  or  pursuing 
any  lawful  business,  vocation,  or  profes- 
sion, is  not  violated  by  an  ordinance  pro- 
hibiting the  sale  of  intoxicating  liquors  in 
dance  cellars  or  other  places  where  musical 
and  theatrical  entertainments  are  given, 
and  where  females  attend  as  waitresses. 
Ex  parte  Hayes,  98  Cal.  555,  33  Pac.  337, 

20:  701 

319.  Restricting  the  right  to  obtain  licen- 
ses for  the  sale  of  intoxicating  liquors  to 
the  male  inhabitants  of  the  state  does  not 
render  a  law  obnoxious  to  U.  S.  Const,  art. 
4,  §  2,  which  provides  that  the  citi/.ens  of 
each  state  shall  he  entitled  to  all  the  privi- 
leges and  immunities  of  the  citizens  of  the 
several  states.  Welsh  v.  State,  126  Ind.  71, 
25  N.  E.  883,  9:  664 

320.  The  exclusion  of  women  from  a  jury 
on  the  trial  of  a  man  for  crime,  even  if 
wrongful,  does  not  deprive  him  of  any 
rights  or  privileges  under  a  constitutional 
provision  giving  women  the  right  to  vote 
and  hold  office,  and  declaring  that  both 
male  and  female  citizens  shall  equally  en- 
joy all  civil,  political,  and  religious  rights 
and  privileges.  McKinney  v.  State,  3  Wvo. 
719,  30  Pac.  293,  16:  710 
Indians. 

321.  A  citizen  of  Indian  blood  is  not  de- 
prived of  any  constitutional  privileges  and 
immunities  by  a  statute  prohibiting  the 
sale  or  giving  of  intoxicating  liquors  to  any 
Indian.  People  v.  Bray,  105  Cal.  344,  38 
Pac.  731,  27:  158 
Highways. 

Due  Process  of  Law  as  to,  see  infra,  763- 

766. 
Police   Power  as  to,  see  infra,  960-966. 
Prohibiting    Public    Meetings    in,    without 

Consent   of   Municipal   Authorities,   see 

infra,  966. 
Special  Legislation  as  to,  see  Statutes,  367- 

375. 
See  also  infra,  351,  379,  380,  414,  452,  966. 

322.  The  limitation  of  the  use  of  a  street 
to  the  purposes  of  a  pleasure  driveway  is  in 
no  sense  class  legislation.  Cicero  Lumber 
Co.  V.  Cicero,  176  111.  9,  51  N.  E.  758, 

42:  696 

323.  Compelling  abutting  owners  to  keep 
sidewalks  free  from  snow  is  the  impositi;in 
of  a  burden  which  does  not  bear  upon  all 
citizens  alike,  and  which  denies  them  the 
equal  protection  of  the  laws.  State  v.  Jack- 
man,  69  N.  H.  318,  41  Atl.  347,  42:  438 

324.  To    uphold    a    statute    imposing   the 


duty  upon  the  owners  or  occiiprints  of  abut- 
ting land  to  keep  the  sidewalks  free  from 
ice  and  snow,  there  must  be  no  inequality 
in  the  burden  imposed  upon  the  respective 
classes  of  persons  upon  whom  the  duty  is 
imposed,  nor  unjust  discrimination  in  favor 
of  some  and  against  others.  McGuire  v. 
District  of  Columbia,  24  D.  C.  App.  22, 

65:  430 

325.  A  statute  which  makes  any  person 
who  drives  a  herd  of  horses,  asses,  cattle, 
sheep,  goats,  or  swine  over  a  public  high- 
way constructed  on  a  hillside,  liable  for 
all  damages  done  by  such  animals  in  de- 
stroying the  banks  or  rolling  rocks  into 
or  upon  such  highway,  is  not  unconstitu- 
tional as  a  denial  of  eqiKil  privileges,  im- 
munities, or  protection  of  the  laws,  or  as 
depriving  any  person  of  property  without 
due  process  of  law.  Brim  v.  Jones,  11  Utah, 
200,  39  Pac.  825,  29:  97 
[Aff'd  by  the  Supreme  Court  of  the 
United  States  in  165  U.  S.  180,  41  L.  ed. 
677,  17  Sup.  Ct.  Rep.  282.] 
Municipalities;   school  districts. 

See  also  infra,  569. 

326.  A  statute  (Kan.  C.en.  Stat.  1897,  § 
15,  chap.  32)  which  provides  for  the  exten- 
sion of  city  boundaries  over  certain  classes 
of  adjoining  lands  is  not  violative  of  the 
14th  Amendment  to  the  Constitution  of  the 
United  States  because  it  exempts  agricul- 
tural lands  from  its  provisions.  Kansas 
City  v.  Clark,  69  Kan.  427,  53  Pac.  468, 

52:  321 

327.  A  right  to  the  equal  protection  of 
the  laws  is  not  secured  to  a  municipal  cor- 
poration as  against  the  state  by  the  14th 
Amendment  to  the  Federal  Constitution,  so 
as  to  limit  in  any  way  the  power  of  the 
state  legislature  to  charge  the  municipality 
with  public  obligations;  nor  have  the  in- 
habitants in  their  capacity  of  members  of 
such  corporation  any  greater  rights  or  im- 
•nunities.  State  ex  rel.  Bulkelev  v.  Wil- 
liams,  68   Conn.    131,   35   Atl.   24,   421, 

48:  465 

328.  A  statute  providing  that  children 
living  within  a  half  mile  of  the  recently  en- 
larged limits  of  a  municipality  may  attend 
its  schools  free  of  charge  is  not  vicious 
class  legislation.  Edmondson  v.  Board  of 
Education  of  Memphis,  108  Tenn.  5.'>7,  69 
S.  W.  274,  58:  170 

329.  A  school  district  or  municipal  cor- 
poration has  the  same  constitutional  pro- 
tection that  an  individual  would  have 
against  the  abrogation  by  statute  of  its 
already  complete  defense  under  the  statute 
of  limitations.  Normal  School  Dist.  Bd.  of 
Edu.  V.  Blodgett,  155  111.  441,  40  N.  E. 
1025,  31:70 
Offices  and  elections. 

Due  Process  of  Law  as  to,  see  infra,  II. 
b,  6. 

Discrimination  in  Registration,  see  Elec- 
tions,  .^.3-.'5n. 

Discrimination  between  Nominees,  see  Elec- 
tions, 171. 

Special  Loaislation  as  to,  see  Statutes,  384, 
387-390,  400-405. 

See  also  infra,  788;  Electiona,  6. 


582 


CONSTITUTIONAL  LAW.  II.  a,  1. 


For  Editorial  Notes,  see  infra,  III.   §  7. 

330.  A  provision  that  officers  and  patrol- 
men of  a  fire  department  shall  be  selected 
equally  from  the  two  leading  political  par- 
ties of  a  city  is  in  violation  of  a  constitu- 
tional provision  against  granting  privileges 
or  immunities  to  any  citizen  or  class  of 
citizens  which  shall  not,  upon  the  same 
terms,  belong  to  all  citizens.  Evansville  v. 
State  ex  rel.  Blend,  118  Ind.  426,  21  N.  E. 
267,  4:  93 
State  ex  rel.  Holt  v.  Denny,  118  Ind.  449, 
21  N.  E.  274,                                                 4:  65 

331.  A  residence  of  five  years  cannot  be 
made  by  the  legislature  a  valid  qualifica- 
tion for  office,  under  a  constitutional  pro- 
vision against  granting  privileges  or  im- 
munities to  any  citizen  or  class  of  citizens 
which  shall  not  belong  to  all  citizens  upon 
the  same  terms.  Id. 

332.  The  privileges  and  immunities  of 
citizens,  or  the  equal  protection  of  the  laws, 
guaranteed  by  the  Federal  Constitution,  is 
not  denied  to  a  citizen  removing  from  the 
District  of  Columbia  to  a  state  by  requir- 
ing him,  as  a  condition  to  the  exercise  of 
the  elective  franchise,  to  record  in  a  public 
record  his  intention  of  becoming  a  citizen 
a  certain  time  before  he  can  qualify  as  a 
voter.  Pope  v.  Williams,  98  Md.  59,  56 
Atl.   543,  66:  398 

333.  An  act  to  provide  for  the  purity  of 
elections,  which  does  not  prevent  an  elector 
from  casting  his  vote  fairly,  does  not  in- 
terfere with  the  privileges  and  immunities 
of  the  citizens  so  as  to  conflict  with  U.  S. 
Const.  14th  Amend.  Cook  v.  State,  90  Tenn. 
407,  16  S.  W.  471,  13:  183 

334.  Restricting  persons  to  remedies  at 
law,  to  the  exclusion  of  equitable  remedies, 
for  contesting  title  to  office  or  the  vindica- 
tion of  political  rights,  is  not  a  denial  of 
due  process  of  law  or  of  the  equal  protec- 
tion of  the  laws.  State  ex  rel.  McCaffery 
V.  Aloe,  152  Mo.  466,  54  S.  W.  494,  47:  393 
Public  printing;   publishing  statutes. 

335.  A  statute  prohibiting  the  letting  of 
public  printing  to  papers  which  have  been 
established  less  than  a  year  violates  the 
constitutional  provisions  that  all  laws  of 
a  general  nature  shall  have  a  imiform  oper- 
ation, and  that  no  citizen  shall  be  grant- 
ed privileges  which  upon  the  same  terms 
shall  not  be  granted  to  all  citizens.  Van 
Harlingen  v.  Doyle,  134  Cal.  53,  66  Pac.  44, 

54:  771 

336.  The  legislature  is  not  prohibited  by 
any  provision  of  the  Nebraska  Constitution 
from  granting  to  a  person  the  right  to 
publish  the  statutes  of  the  state,  and  mak- 
ing such  statute  prima  facie  evidence  of 
the  law,  nor  from  purchasing  such  number 
of  copies  thereof  as  the  legislature  may 
deem  necessary  for  the  use  of  its  officers. 
Marsh  v.  Stonebraker  (Neb.)  98  N.  W.  699, 

65:  607 
Trademark. 
Due  Process  of  Law  as  to,  see  infra,  768. 

337.  A  statute  authorizing  associations 
or  unions  of  workingmen  to  adopt  labels 
or  devices  to  distinguish  the  products  of 
their  labor  does  not   make   an   unjust   dis- 


crimination against  nonmiion  workingmen. 
Perkins  v.  Heert,  158  N.  Y.  306,  53  N.  E. 
18,  43:  858 

338.  A  statute  providing  for  labels  and 
trademarks  of  associations  or  unions  of 
workingmen  does  not  violate  a  constitu- 
tional provision  against  special  laws  grant- 
ing exclusive  privileges,  although  it  gives 
to  the  associations  or  unions  privileges  de- 
nied to  single  individuals.  Schmalz  v. 
Woolley  (N.  J.  Err.  &  App.)  57  N.  J.  Eq. 
303,  41  Atl.  939,  43:  86 

339.  A  statute  providing  for  the  protec- 
tion of  trademarks  adopted  by  associations 
or  tmions  of  workingmen  is  not  void  as 
class  legislation  or  as  granting  special 
privileges  or  immunities.  State  v.  Bishop, 
128  Mo.  373,  31  S.  W.  9,  29:  200 

340.  A  statute  giving  the  right  to  a  trade- 
mark in  a  label  adopted  by  "any  person, 
association,  or  union  of  workingmen,"  is 
not  a  local  or  special  law  granting  special 
privileges,  immunities,  or  franchises,  since 
it  is  not  limited  to  associations  of  any  par- 
ticular class  of  persons.  Cohn  v.  People, 
149  111.  486,  37  N.  E.  60,  23:  821 
Mine  boundaries. 

341.  A  statute  prohibiting  the  owner  of 
coal  land  to  open  or  work  any  mine  or 
shaft  within  5  feet  of  his  division  line  with- 
out the  consent  of  the  adjoining  owner,  un- 
der a  penalty  of  ifi500,  is  within  the  consti- 
tutional power  of  the  legislature  as  impos- 
ing an  impartial,  just,  and  reasonable  com- 
mon burden  for  the  benefit  of  all  mine  own- 
ers and  the  protection  of  the  surface. 
Mapel  V.  John,  42  W.  Va.  30,  24  S.  E.  608, 

32:  800 
Burning  gas. 

Due  Process  of  Law  as  to,  see  infra,  783- 
785. 

342.  The  equal  privileges  or  immunities 
of  citizens  are  not  violated  by  prohibiting 
the  wasteful  use  ot  gas  by  burning  flam- 
beau lights.  Townsend  v.  State,  147  Ind. 
624,  47  N.  E.  19,  37:  294 
Divorce. 

343.  An  act  permitting  a  limited  divorce 
for  adultery  or  desertion,  attended  by  spe- 
cial consequences  with  regard  to  property 
rights,  on  the  application  of  a  person  hold- 
ing conscientious  scruples  against  absolute 
divorce,  and  not  otherwise,  is  imconstitu- 
tional,  since  a  classification  defined  only 
by  inquiry  into  the  private  opinions  of  an 
offended  party  is  not  such  as  the  principles 
of  constitutional  construction  will  sustain. 
Middleton  v.  Middleton  (N.  J.  Err.  &  App.) 
54  N.  J.  Eq.  692,  35  Atl.  1065,  36:  221 
Libel. 

344.  A  statute  defining  rights  and  obli- 
gations in  respect  to  actions  for  libel  is  not 
unconstitutional  as  partial  or  class  legisla- 
tion because  its  provisions  are  limited  to 
publishers  of  newspapers.  Allen  v.  Pioneer 
Press  Co.  40  Minn.  117,  41  N.  W.  936, 

3:  532 

345.  The  Michigan  statutes  relieving  pub- 
lishers of  newspapers  from  all  but  actual 
damages  to  property  and  business,  in  ac- 
tions for  libel,  if  the  publication  was  by 
mistake  and  in  good  faith,  and  did  not  in- 


CONSTUTITIONAL  LAW,  II.  a.  1. 


588 


volve  a  criminal  charge,  and  was  followed 
by  a  correction,  are  unconstitutional,  be- 
cause they  deprive  the  party  injured  of  the 
right  to  damages  for  injury  to  his  private 
reputation,  and  exempt  a  special  class  of 
citizens  from  liability  for  wrongs,  not 
granted  to  others,  and  permit  the  doing  of 
a  wrong  without  liability  to  answer  there- 
for. Park  V.  Detroit  Free  Press  Co.  72 
Mich.  560,  40  N.  W.  731,  1 :  599 

346.  Limiting  the  right  to  escape  puni- 
tive damages  for  the  publication  of  a  libel 
by  a  retraction  to  the  publishers  of  news- 
papers and  periodicals  is  not  an  unconsti- 
tutional discrimination  against  other  per- 
sons who  may  be  guilty  of  publishing  a 
libel.  Osbom  v.  Leach,  135  N.  C.  628,  47 
S.  E.  811,  66:  648 
Smoke.               ,                            *< 

Equal  Protection  and  Privileges  of  Railroad 

Companies  as  to,  see  infra,  424. 
As  to  Criminal  Matters,  see  infra,  607,  608. 

347.  Exempting  -  chimneys  of  buildings 
us«d  exclusively  for  private  residences  from 
a  statute  declaring  the  emission  of  dense 
or  thick  black  or  gray  smoke  or  cinders 
from  smokestacks  or  chimneys  to  be  a 
public  nuisance,  and  limiting  the  statute 
to  any  smokestack  or  chimney  used  in  con- 
nection with  any  stationary  engine,  steam 
boiler,  or  furnace,  does  not  make  the  stat- 
ute unconstitutional  because  of  inequality 
or  unjust  discrimination  in  violation  of  the 
provision  as  to  equal  j/rotection  of  the 
laws,  since  it  is  not  apparent  that  the  clas- 
sification made  is  without  reasonable  basis. 
Moses  V.  United  States,  16  App.  D.  C.  428, 

50:  532 
Bicycles. 
Special  Legislation  as  to,  see  Statutes,  375. 

348.  An  ordinance  requiring  bicycle  rid- 
ers to  carry  lamps  is  not  unconstitutional 
because  not  applying  to  other  silently  run- 
ning vehicles.  Des  Moines  v.  Keller,  116 
Iowa,  648,  88  N.  W.  827,  57 :  243 

349.  The  equal  privileges  and  immuni- 
ties of  a  bicycle  rider  are  not  infringed  by 
requiring  him  to  carry  a  light  after  dark. 

Id. 
Parades. 

350.  A  statute  exempting  certain  inde- 
pendent military  bodies  or  organizations 
from  the  operation  of  a  provision,  against 
parading  with  firearms  is  not  unconsti- 
tutional class  legislation,  as  it  grants  a 
special  privilege  only,  which  does  not  inter- 
fere with  any  constitutional  rights  of  oth- 
ers. Com.  V.  Murphy,  166  Mass.  171,  44  N. 
E.  138,  32:  606 

351.  An  ordinance  prohibiting  street  pa- 
rades with  shouting,  singing,  or  music, 
without  obtaining  permission  from  a  city 
officer,  but  excepting  from  its  provisions 
funerals,  fire  companies,  state  militia,  and 
political  parties  having  a  state  organiza- 
tion, is  unconstitutional  by  reason  of  its 
unreasonable  and  imjust  discrimination 
denying  equal  privileges  and  protection  of 
the  laws.  Re  Garrabad,  84  Wis.  585,  54 
N.  W.  1104,  19:  858 


Driving  piles  in  river. 

352.  A  statute  making  it  unlawful  for 
the  owner  of  ground  having  the  right  to 
use  it,  to  drive  piles  into  it  anywhere 
within  a  river,  for  any  purpose,  prevents 
the  lawful  use  of  his  property,  and  takes 
it  away  from  him  •  without  compensation 
or  due  process  of  law,  and  denies  him  the 
equal  protection  of  the  law.  Janesville  v. 
Carpenter,   77  Wis.  288,  46  N.  W.   128, 

8:  808 

353.  A  statute  violates  the  essential 
spirit,  purpose,  and  intent  of  the  Consti- 
tution, and  is  contrary  to  public  justice, 
where  it  declares  that  it  shall  be  unlaw- 
ful within  the  limits  of  a  single  county 
to  drive  piles,  etc.,  in  a  river  which  flows 
through  other  counties  also,  and  gives  only 
to  resident  taxpayers  and  owners  or  lessees 
of  the  right  to  use  water  of  said  river  for 
a  mill  or  factory  within  said  county  the 
right  to  an  injunction  against  the  pro- 
hibited acts,  without  proof  that  any  injury 
or  danger  has  been  or  will  be  caused  there- 
by. Id. 
Eminent  domain. 

Due  Process  of  Law  as  to,  see  infra,  II.  b, 

2,  6. 
Special  Legislation  as  to,  see  Statutes,  310. 
See  also  supra,  60;  infra,  578-580,  657. 

354.  A  constitutional  provision  for  equal 
privileges-  and  immunities  of  citizens  is  not 
violated  by  a  statute  which  grants  the 
right  of  eminent  domain  only  to  such  com- 
panies, corporations,  etc.,  as  are  engaged 
in  supplying  patrons  within  the  state.  Con- 
sumers Gas  Trust  Co.  v.  Harless,  131  Ind. 
446,  29  N.  E.  1062,  15:  505 

355.  A  rule  of  compensation  for  the  tak- 
ing of  private  property  for  public  use  by 
an  individual  cannot  be  provided  by  the 
legislature  which  is  less  favorable  to  the 
property  owner  than  the  rule  provided  by 
the  constitution  in  case  of  a  taking  by  a 
private  corporation  for  a  similar  purpose, 
where  the  constitution  prohibits  discrimi- 
nation not  justified  by  intrinsic  diflferences, 
and  requires  a  uniform  operation  of  gen- 
eral laws.  Beveridge  v.  Lewis,  137  Cal.  619, 
70  Pac.  1040,  59:  581 

356.  A  statute  authorizing  the  condemna- 
tion of  a  site  for  public  warehouses  or  ele- 
vators on  a  railroad  right  of  way,  without 
subjecting  the  land  of  a  private  owner  to 
a  like  burden,  is  not  invalid  as  class  legis- 
lation or  discrimination  against  railway 
companies.  Re  Stewart's  Application,  65 
Minn.  515,  68  N.  W.  208,  33:  427 

357.  A  discrimination  by  statute  between 
the  owners  of  lots  similarly  situated  and 
subject  to  substantially  the  same  condi- 
tions, in  respect  to  the  right  to  compensa- 
tion for  injury  thereto  by  a  change  of  the 
grade  of  a  street,  is  unconstitutional  as  a 
denial  of  the  equal  protection  of  the  laws. 
Anderton  v.  Milwaukee,  82  Wis.  279,  52  N. 
W.  95,  15:  830 
Exemption  from  arrest. 

358.  A  statute  exempting  an  officer  or 
seaman  of  a  seagoing  vessel  or  ship  from 
arrest  or  imprisonment  for  debt  is  not  in 
conflict    with    the    constitutional    provision 


584 


CONSTITUTIONAL  LAW,  II.  a,  2. 


apainst  the  grant,  to  any  citizen  or  class  of 
citizens,  of  any  privilege  or  immunity 
which  shall  not  upon  the  same  terms  be- 
long equally  to  all  citizens.  Re  Oberg,  21 
Or.  406.  28  Pac.  130,  14:  577 

Miscellaneous. 

As  to  Application  of  Tuberculine  Test,  see 
Animals,  61,  62. 

359.  An  ordinance  is  not  "unequal  and 
unjust"  on  the  ground  that  it  permits  the 
owner  of  a  small  parcel  of  ground  to  culti- 
vate a  larger  proportion  of  his  ground 
than  the  owner  of  a  larger  tract  can  do, 
where  the  same  maximum  limit  is  fixed  for 
all  persons.  Summerville  v.  Pressley,  33  S. 
C.   56,   11    S.   E.  545,  8:  854 

360.  The  equal  protection  of  the  laws  is 
not  denied  by  a  statute  requiring  the  sub- 
stitution of  water-closets  for  school  sinks 
in  tenement  houses  only,  and  then  only 
when  they  are  located  in  cities  of  the  first 
class.  Tenement  House  Department  v. 
Moeschen,  179  N.  Y.  325,  72  N.  E.  231, 

70:  704 

361.  The  exemption  of  agricultural  prod- 
ucts and  live  stock  from  the  provisions 
of  the  Oeorgia  anti-trust  act  (Ga.  Acts 
1806,  p.  68)  renders  the  act  void  because  in 
violation  of  U.  S.  Const.  14th  Amend.,  de- 
claring that  no  state  shall  deny  to  any  per- 
son the  equal  protection  of  the  laws.  Brown 
v.  Jacobs  Pharmacy  Co.  115  Ga.  429,  41  S. 
E.   5.53,  57:  547 

362.  A  law  permitting  the  use  of  docked 
horses  registered  within  a  certain  time 
after  its  passage,  and  forbidding  the  use  of 
all  other  docked  horses,  is  not  void  as  ob- 
jectionable class  legislation.  Bland  v.  Peo- 
ple. .32  Colo.  319,  76  Pac.  359,  65:  424 

363.  A  statute  requiring  notes  given  for 
patent  rights  so  to  state  on  their  faces  is 
not  obnoxious  to  constitutional  prohibitions 
of  class  legislation.  State  v.  Cook,  107 
Tenn.  499,  64  S.  \V.  720,  62:  174 

2.   As   to   Nonresidents   or   Aliens. 

a.  Nonresidents. 

Forbidding  Assignment  to,  for  Purpose  of 
Evading  Exemption  Laws,  see  Exemp- 
tions, 6. 

As  to  Digging  Clams,  see  Fisheries,  37. 

See  also  supra,  354,  infra,  394,  338,  404,  444, 
468,  516,  525,  599,  697,  775. 

364.  Nonresidents  of  unorganized  terri- 
tories are  not  given  the  rights  of  residents 
therein  by  the  section  of  the  Federal  Con- 
stitution providing  that  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  different 
states.  McFadden  v.  Blocker,  3  Ind.  Ter. 
224,  54  S.  W.  873,  58:  894 

305.  No  unconstitutional  discrimination 
between  resident  and  nonresident  owners  of 
land  along  the  line  of  a  ditch  is  made  by  a 
statute  permitting  any  resident  owner, 
when  the  ditch  needs  cleaning,  to  petition 
therefor  under  a  section  which  simply  re- 
quires a  sworn  statement  of  such  necessity 
to   be    made   to   the   county   auditor,    while 


nonresident  owners  can  only  petition  for 
such  improvement  under  a  section  which 
requires  application  to  be  made  to  the 
county  commissioners,  and  the  giving  of  a 
bond  for  the  payment  of  costs  if  the  appli- 
cation is  not  granted.  Taylor  v.  Craw- 
ford. 72  Ohio  St.  560,  74  N.  E.  1065,  69:  805 
Foreign  partnerships. 

366.  The  mere  organization  of  a  partner- 
ship luider  the  laws  of  another  state  is  not 
sufficient  to  justify  the  imposition  of  con- 
ditions upon  its  doing  business  within  the 
state  not  required  of  local  partnerships. 
State  v.  Cadigan,  73  Vt.  245,  50  Atl.  1079, 

57:  666 

367.  A  statute  imposing  a  penalty  on 
agents  transacting  business  within  the 
state  for  foreign  partnerships  which  have 
not  complied  with  conditions  not  required 
of  local  partnerships  discriminates  against 
such  agents  in  favor  of  those  of  local  firms 
so  as  to  be  void  under  the  Federal  Consti- 
tution and  those  provisions  of  a  state  Con- 
stitution protecting  equal  rights  and  privi- 
leges. Id. 
Foreign  railroad  company. 

368.  The  equal  protection  of  the  laws  is 
not  denied  to  a  foreign  railroad  corporation 
operating  a  portion  of  its  road  within 
the  state,  by  compelling  it  to  become  do- 
mesticated as  a  condition  to  its  continu- 
ing such  operation.  Com.  v.  Mobile  &  0. 
R.  Co.  23  Ky.  L.  Rep.  784,  64  S.  W.  451, 

54:  916 
Regulation  of  business  generally;  licenses. 
See  also  infra,  498-501. 

369.  The  exclusion  of  citizens  of  other 
states  from  the  right  to  dig  clams  for  sale 
on  certain  flats,  by  a  regulation  restricting 
the  right  to  residents  of  the  town,  does  not 
violate  the  constitutional  privileges  or  im- 
munities of  citizens.  Com.  v.  Hilton,  174 
Mass.  29,  54  N.  E.  362,  45:  476 

370.  A  statute  fixing  the  price  of  licenses 
for  the  sale  of  lightning  rods  at  $100  to 
citizens  of  the  state,  and  $500  to  citizens 
of  other  states,  is  a  discrimination  pro- 
hibited by  U.  S.  Const,  art.  4,  §  2.  State 
V.  Wiggin,  64  N.  H.  508,  15  Atl.  128, 

1:56 

371.  An  ordinance  providing  for  the  li- 
censing of  all  persons  selling  or  off'ering 
to  sell  on  the  streets,  or  soliciting  orders 
from  house  to  house,  when  it  makes  no  dis- 
crimination on  any  ground,  is  not  invalid 
as  to  residents  of  the  state  on  the  ground 
that  it  works  a  discrimination  against  them 
and  in  favor  of  nonresidents,  as  to  whom 
it  may  be  invalid.  Brownback  v.  North 
Wales,  194  Pa.  609,  45  Atl.  660,         49:  446 

372.  A  statute  requiring  the  payment  of 
a  license  fee  for  the  privilege  of  purchasing 
certain  kinds  of  produce  in  a  certain  coun- 
ty to  be  shipped  out  of  it,  which  fee  is 
greater  in  the  case  of  nonresidents  of  the 
county  than  of  residents,  is  not  obnoxious 
to  U.  S.  Const,  art.  4,  §  2,  entitling  citi- 
zens of  each  state  to  all  the  privileges  and 
immunities  of  the  citizens  of  the  several 
states.  Rothermel  v.  Meyerle,  136  Pa.  250, 
20  Atl.  583,  9:  366 

373.  A  borough  ordinance  which  discrimi- 


CONSTITUTIONAL  LAW,  IL  a.  2. 


585 


nates  against  nonresidents  by  prohibiting 
all  persons  from  peddling  or  selling  goods 
from  house  to  house  without  a  license, 
which  is  fixed  at  so  high  a  figure  that  it 
amounts  to  prohibition,  but  which  excepts 
residents  of  the  borough  from  its  provi- 
sions, is  void.  The  borough  can  have  no 
better  right  to  adopt  discriminating  trade 
regulations  than  the  state  has.  Sayre  v. 
Phillips,  148  Pa.  482,  24  Atl,  76,  16:  49 

Insurance. 
As  to  Attorney's  Fees,  see  infra,  581-584. 

374.  Confining  the  right  to  act  as  agent 
for  foreign  insurance  companies  to  resi- 
dents of  the  state  is  not  an  unconstitu- 
tional impairment  of  the  privileges  and 
immunities  of  citizens  of  other  states,  since 
corporations  are  not  within  the  protection 
of  the  provisions  relating  theretQ,  and  per- 
sons seeking  to  act  for  them  can  acquire 
no  greater  rights  than  the  corporations 
have.  Cook  v.  Rowland,  74  Vt.  393,  52  Atl. 
973,  59:  338 

375.  There  is  no  unwarranted  discrimina- 
tion against  citizens  of  other  states  in 
Mich.  Sess.  Laws  1893,  act  No.  74,  de- 
claring it  to  be  unlawful  for  any  person  to 

'  solicit  insurance  within  the  state  on  prop- 
erty within  the  state  for  any  nonresident 
persons  without  procuring  from  the  com- 
missioner of  insurance  the  certificate  of  in- 
surance provided  for  by  the  statute.  Peo- 
ple V.  Qay,  107  Mich.  422,  65  N.  W.  292, 

30:  464 

376.  The  discrimination  between  resident 
and  nonresident  citizens  in  the  provision 
of  Fla.  Acts  1895,  chap.  4380,  §  3,  that  no 
foreign  insurance  company,  association, 
firm,  or  individual  shall  transact  any  in- 
surance business  in  the  state  unless  pos- 
sessed of  at  least  $150,000  invested  in  a 
specified  manner,  without  requiring  any 
such  property  condition  in  the  case  of  do- 
mestic, unincorporated  associations,  firms, 
or  individuals,  violates  U.  S.  Const,  art. 
4,  §  2,  insuring  to  citizens  of  each  state 
all  the  privileges  and  immunities  of  citi- 
zens in  the  several  states.  State  ex  rel. 
Hoadley  v.  Board  of  Ins.  Comrs.  37  Fla. 
564,  20  So.  772,  33:  288 
As  to  taxes. 

377.  A  state  tax  law  allowing  to  resi- 
dents a  deduction  of  debts  without  allow- 
ing such  deduction  to  nonresidents  is  a  de- 
nial of  the  equal  privileges  and  immunities 
of  citizens  guaranteed  by  U.  S.  Const,  art. 

4,  §  2.  Sprague  v.  Fletcher,  69  Vt.  69,  37 
Atl.  239,  37:  840 

378.  The  privileges  and  immunities  of 
citizens  of  other  states,  guaranteed  by  U. 

5.  Const,  art.  4,  §  2,  and  U.  S.  Const.  14th 
Amend.,  are  not  violated  by  Conn.  Gen. 
Stat.  §§  3836,  3916,  taxing  the  resident 
stockholders  of  certain  corporations  in  the 
town  in  which  they  reside,  deducting  from 
the  market  value  of  the  stock  the  value  of 
the  capital  invested  in  real  estate  on  which 
the  company  pays  taxes,  but  imposing  a 
state  tax  on  nonresident  shareholders  of 
IV2  per  cent  on  the  market  value  of  their 
shares,  without  any  provision  for  deduc- 
tion of  capital  invested  in  real  estate,  since 


this  law  is  not  a  hostile  discrimination 
against  citizens  of  other  states  in  the  en- 
joyment of  property  rights  common  to  all, 
but  provides  for  the  state  taxation  of  non- 
resident stockholders  because  it  is  imprac- 
ticable to  subject  them  to  the  municipal 
taxation  that  is  imposed  on  the  resident 
stockholders.  State  v.  Travelers'  Ins.  Co. 
73  Conn.  255,  47  Atl.  299,  57:  481 

Highways. 

379.  The  fact  that  the  owners  of  unim- 
proved property  may  be  nonresidents  is  no 
excuse  for  making  different  provisions  with 
respect  to  the  removal  of  snow  from  the 
walks  in  front  of  such  property  from  those 
relating  to  improved  property.  McGuire  v. 
District  of  Columbia,  24  D.  C.  App.  22, 

65:430 

380.  Discrimination  in  favor  of  nonresi- 
dents of  a  town  or  city,  by  a  statute  grant- 
ing them  partial  or  entire  exemption  from 
penalties  for  allowing  stock  to  run  at  large 
in  the  streets,  is  not  unconstitutional  as  a 
grant  of  any  "exclusive  or  separate  emolu- 
ments or  privileges,"  or  as  a  denial  to  any 
person  of  the  equal  protection  of  the  laws. 
Boardfoot  v.  Fayetteville,  121  N.  C.  418,  28 
S.  E.  515,  39:  245 
As  to  trusts. 

381.  A  statute  prohibiting  any  person 
who  is  not  a  bona  fide  resident  of  the  state- 
to  act  or  be  appointed  as  a  trustee  in  any 
deed,  mortgage,  or  other  instrument  in 
writing,  except  wilts,  is  in  violation  of  the 
constitutional  right  of  citizens  of  each  state 
to  all  the  privileges  and  immunities  of  citi- 
zens in  the  several  states.  Roby  v.  Smith. 
131  Ind.  342,  30  N.  E.  1093,  15:  792 
As  to  dower. 

382.  There  is  no  unconstitutional  dis- 
crimination against  a  nonresident  widow, 
under  U.  S.  Const.  14th  Amend.,  by  making 
a  conveyance  by  her  husband  of  his  prop- 
erty sufficient  .to  cut  off"  her  interest  if  she 
was  not  then  and  never  had  been  a  resident 
of  the  state.  Buffington  v.  Grosvenor,  46 
Kan.  730,  27  Pac.  137,  13:  282 
Sheep  from  other  state. 

383.  Discrimination  between  sheep 
brought  into  the  state  and  those  which  are 
already  therein,  made  by  Id.  Sess.  Laws 
1895,  p.  125,  and  id.  Sess.  Laws  1897,  p. 
115,  requiring  all  sheep,  whether  healthy 
or  not,  to  be  dipped  before  they  are  brought 
into  the  state  at  any  time  of  year,  while 
sheep  within  the  state  are  exempt  from 
dipping  between  December  1  ahd  the  time 
when  they  are  sheared  in  the  following 
spring,  and  also  exempting  ewes  with  lambs 
between  March  15  and  May  15, — consti- 
tutes a  violation  of  the  equal  privileges  and 
immunities  of  citizens  in  the  several  states. 
State  v.  Duckworth,  5  Idaho,  642,  51  Pac. 
456,  39:  365 
Right  to  sue. 

384.  The  right  of  a  nonresident  to  sue 
in  the  courts  of  a  state  is  not  one  of  the 
privileges  and  immunities  granted  to  citi- 
zens of  the  several  states  by  Fed.  Const, 
art.  4,  §  2.  Robinson  v.  Ocean  Steam  Nav. 
Co.  112  N.  Y.  315,  19  N.  E.  625,  2:  636 

385.  The  right  of  citizens  of  other  states 


586 


CONSTITUTIONAL  LAW,  IL  a,  3. 


to  bring  suit  in  a  state  court,  where  a 
citizen  of  that  state  may,  is  guaranteed 
and  protected  by  U.  S.  Const,  art.  4,  § 
2.  Cofrode  v.  Gartner,  79  Mich.  332,  44  N. 
W.  623,  7:  511 

6.  Aliens. 

Contract  Not  to  Rent  to  Chinese,  see  Con- 
tracts, 382. 

Special  Legislation  as  to,  see  Statutes, 
294. 

See  also  infra,  46'2,  562. 

For  Editorial  Notes,  see  infra,  III.  §  7. 

386.  A  state's  denial  to  persons  not  citi- 
zens of  the  United  States  of  the  right  to 
obtain  licenses  .to  sell  spirituous  liquors 
within  its  borders  is  not  a  discrimination 
against  them,  or  an  abridgment  of  their 
rights  within  the  prohibition  of  the  14th 
Amendment  of  the  Constitution  of  the 
United  States.  Tragesser  v.  Grav,  73  Md. 
250,  20  Atl.  905,  *      .  9:  780 

387.  A  statute  providing  that  the  estates 
of  insane  persons  who  have  no  heirs  with- 
in the  United  States  dependent  upon  their 
estates  for  support  shall  be  chargeable 
with  the  expense  incurred  by  any  county 
tor  the  treatment  and  maintenance  of  such 
insane  persons  in  a  hospital  for  the  insane, 
but  not  imposing  such  liability  upon  the 
estates  of  those  who  have  heirs  in  the  Unit- 
fd  States  dependent  an  such  estates  for 
support,  does  not  violate  constitutional 
provisions  against  private  or  special  laws, 
or  laws  granting  to  any  citizen  or  class  of 
citizens  privileges  or  immunities  which, 
ii])on  the  same  terms,  shall  not  equally  be- 
long to  all  citizens.  Bon  Homme  County 
V.  Berndt,   13  S.  D.  309,  83  N.  W.  333, 

50:  351 

.].  As    to    Corporations,    Associations,    and 
Carriers. 

c.  In  General. 

Inviolability  of  Corporate  Property,  see  Col- 
leges, 5. 

Special  Legislation  as  to,  see  Statutes,  302- 
314. 

See  also  supra,  60,  354,  355;  infra,  547,  563, 
572,  573. 

For  Editorial  Notes,  see  infra.  III.  §  7. 

388.  Corporations  as  well  as  individuals 
are  entitled  to  equal  protection  of  the  laws 
under  U.  S.  Const.  14th  Amend.  Luman  v. 
Hitchins  Bros.  Co.  90  Md.  14,  44  Atl.  1051, 

46:  393 

389.  A  constitutional  guaranty  of  equal 
rights  and  privilieges  to  all  free  men  does 
not  apply  to  corporations.  Union  C.  L.  Ins. 
Co,  v.  Chowning,  86  Tex.  654,  26  S.  W.  982, 

24:  504 

390.  Corporations  are  not  citizens  within 
the  meaning  of  the  provisions  of  U.  S. 
Const,  art.  4,  §  2,  and  U.  S.  Const.  14th 
Amend.  §  1,  respecting  equal  privileges 
and  immunities  of  citizens.  Hawlev  v. 
TTurd,  72  Vt.  122,  47  Atl.  401,  52":  195 


391.  Corporations  are  not  citizens  within 
the  meaning  of  the  14th  Amendment  of  the 
Federal  Constitution  respecting  the  privi- 
leges and  immunities  of  citizens.  Daggs  v. 
Orient  Ins.  Co.  136  Mo.  382,  38  S.  W.  85, 

35:  227 

392.  A  corporation  is  neither  a  citizen 
of  the  United  States  nor  a  person  within 
the  protection  of  U.  S.  Const.  14th  Amend. 
§  1.  State,  Curtis  v.  Brown  &  S.  Mfg.  Co. 
18  R.  I.  16,  25  Atl.  246,  17:  856 

393.  To  justify  the  treatment  of  corpora- 
tions as  a  class  for  the  purpose  of  legisla- 
tion the  classification  must  be  founded  up- 
on differences  either  defined  by  the  Consti- 
tution, or  natural,  or  which  will  suggest  a 
reason  which  might  naturally  be  held  to 
justify  the  diversity  of  legislation.  John- 
son V.  Goodvear  Min.  Co.  127  Cal.  4,  59 
Pac.   304,       "  47:  338 

394.  A  corporation  not  created  by  a  state, 
or  doing  business  there  imder  conditions 
that  subject  it  to  process  issuing  from  the 
courts  of  that  state,  is  not  within  its  juris- 
diction so  as  to  be  entitled  to  the  equal 
protection  of  the  laws,  guaranteed  by  U. 
S.  Const.  14th  Amend.  §  1.  Hawley  v. 
Hurd,  72  Vt.  122.  47  Atl.  401,  52:  195 

395.  Renewing  the  special  privileges  and 
immunities  contained  in  an  old  special 
charter  of  a  corporation  is  a  violation  of 
Ind.  Const,  art.  1,  §  23,  prohibiting  the 
grant  to  any  citizen  or  class  of  citizens  of 
privileges  or  immimities  which,  upon  the 
same  terms,  shall  not  belong  to  all  citi- 
zens. Bank  of  Commerce  v.  Wiltsie,  153 
Ind.  460,  53  N.  E.  950,  47:  489 

396.  A  statute  imposing  certain  duties 
and  liabilities  upon  one  class  of  corpora- 
tions only  does  not  deny  them  the  equal 
protection  of  the  laws  if  the  peculiar  char- 
acter of  the  business  of  those  corporations 
is  sufficient  to  justify  the  discrimination. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Paul,  64 
Ark.  83.  40  S.  W.  705,  37:  504 

397.  A  constitutional  provision  against 
granting  to  any  corporation  any  special 
or  exclusive  privilege  is  not  infringed  by 
an  act  allowing  trustees,  etc.,  to  charge 
the  estate  a  reasonable  sum  which  they 
may  have  paid  "to  a  company"  authorized 
by  law  to  do  so,  for  becoming  surety  on 
their  bonds.  Re  Clark,  195  Pa.  520,  46  Atl. 
127,  48:  587 

398.  A  denial  of  the  right  of  a  corpora- 
tion incorporated  in  another  state .  to  re- 
move a  cause  into  a  Federal  court,  on  the 
ground  of  diverse  citizenship,  from  a  court 
of  North  Carolina  in  which  it  has  been  sued 
by  a  citizen  of  the  latter  state,  on  the 
ground  that  the  corporation  has  become  a 
domestic  corporation  under  Pub.  Laws  1899, 
chap.  62,  as  it  was  compelled  to  do  in  or- 
der to  obtain  the  privilege  of  doing  busi- 
ness in  that  state,  does  not  deprive  the  cor- 
poration of  any  rights  under  the  Federal 
Constitution  as  a  citizen  of  the  United 
States,  or  deny  it  due  process  of  law  or 
the  equal  protection  of  the  laws.  Debnam 
V.  Southern  Bell  Teleph.  &  Teleg.  Co.  126 
N.  C.  831,  36  S.  E.  269,  65:  915 

399.  That  a  corporation  is  engaged  in  a 


CONSTItDTIONAL  LAW,  11.  a,  3. 


587 


business  which  an  individual  might  carry 
on  without  payment  of  any  tax  or  license 
fee  does  not  render  the  imposition  of  a  tax 
upon  its  franchises  an  unlawful  discrimi- 
nation prohibited  by  U.  S.  Const.,  Amend. 
14.  Bank  of  California  v.  San  Francisco, 
142  Cal.  276,  75  Pac.  832,  64:  918 

As  to  building  and  loan  associations. 
Special    Legislation    as    to,    see    Statutes, 
296. 

400.  Statutes  exempting  building  and 
loan  associations  from  the  operation  of  the 
usury  law  are  not  unconstitutional  as  class 
legislation.  Iowa  Sav.  &  L.  Asso.  v.  Heidt, 
107  Iowa,  297,  77  N.  W.  1050,  43:  689 

401.  A  statute  incorporating  a  building 
and  loan  association,  providing  that  "no 
dues,  premiums,  interest,  or  finea  that  may 
accrue  to  the  association  in  accordknce  with 
its  charter  shall  be  deemed  usurious,"  is  in 
violation  of  the  fundamental  law,  as  an  at- 
tempt to  confer  special  privileges  on  such 
association.  Henderson  Bldg.  &  L.  Asso.  v. 
Johnson,  88  Ky.  191,  10  S.  W.  787,       3:  289 

402.  A  statute  which  confers  power  on 
building  and  loan  associations  "to  assess 
and  collect  from  members  and  depositors 
such  dues,  fines,  interest,  and  premium  on 
loans  made,  or  other  assessments,  as  may 
be  provided  for  in  the  constitution  and  by- 
laws;" and  which  further  provides  that 
"such  dues,  fines,  premiums,  or  other  as- 
sessments shall  not  be  deemed  usury,  al- 
though in  excess  of  the  legal  rate  of  inter- 
est,"— is  not  in  conflict  with  Ohio  Const, 
art.  2,  §  26,  requiring  all  laws  to  have  a 
uniform  operation,  or  art.  1,  §  2,  forbidding 
the  grant  of  special  privileges  or  immuni- 
ties. Cramer  v.  Southern  Ohio  L.  &  T.  Co. 
72  Ohio  St.  395,  74  N.  E.  200,  69:  415 

403.  A  statute  giving  mortgages  to  build- 
ing and  loan  associations  priority  over  other 
liens  upon  the  mortgaged  property  filed  sub- 
sequent to  the  recording  of  the  mortgage 
is  not  void  as  depriving  anyone  of  the 
equal  protection  of  the  laws.  Julien  v. 
Model  Building,  L.  &  L  Asso.  116  Wis.  79, 
92   N.   W.   561,  61:  668 

404.  The  equal  protecton  of  the  laws  is 
not  denied  to  foreign  building  and  loan 
associations  doing  business  within  the 
state,  by  Ky.  Stat.  §  4228,  requiring  such 
associations  to  pay  into  the  treasury  an- 
nually 2  per  cent  of  their  annual  gross  re- 
ceipts. Southern  Bldg.  &  L.  Asso.  v.  Nor- 
man, 98  Ky.  294;  32  S.  W.  952,  .  31:  41 
Insurance  companies. 

Allowance  of  'Attorney's  Fees  against,  see 
infra,  581-584. 

Discrimination  against  as  Defense  to  Ac- 
tion against,  see  Action  or  Suit,  59. 

Due  Process  of  Law  as  to,  see  infra,  698, 
699,  739,  740. 

Police  Power  as  to,  see  infra,  1009. 

See  also  supra,  374-376,  378. 

405.  The  constitutional  rights  of  citizens 
to  engage  in  business  are  not  violated  by 
restricting  insurance  business  to  corpora- 
tions. Com.  V.  Vrooman,  164  Pa.  306,  30 
Atl.   217,  25:  250 

406.  A  statute  is  not   void   for  granting 


special  rights,  privileges,  immunities,  or  ex- 
emptions, which,  by  not  being  applicable 
to  companies  doing  business  on  the  assess- 
ment plan,  thereby  exempts  them  from  a 
provision  that  false  representations  in  ap- 
plications for  life  or  casualty  insurance 
shall  not  avoid  the  policy  imless  made  with 
actual  intent  to  deceive  or  unless  they  in- 
crease the  risk.  Fidelity  &  C.  Co.  v.  Free- 
man, 48  C.  C.  A.  692,  109  Fed.  847,    54:  680 

407.  The  exemption  of  the  proceeds  of  a 
certificate  of  a  fraternal  beneficiaiy  asso- 
ciation from  liability  for  the  debts  of  the 
holder  or  beneficiary,  made  by  Ohio  act 
April  27,  1896  (92  Ohio  Laws,  360),  is 
invalid  because  it  confers  upon  such  so- 
cieties and  their  members  a  special  privilege 
not  given  to  other  insurance  companies  and 
benefit  societies,  and  is  in  violation  of  Ohio 
Const,  art.  2,  §  1,  as  a  denial  of  the  equal 
protection  of  the  laws.  Williams  v.  I)on- 
ough,  65  Ohio  St.  499,  63  N.  E.  84,       56:  766 

408.  Excepting  insurance  upon  cotton  in 
bales  from  the  provision  in  Tenn.  Acts  Gen. 
Assem.  1893,  chap.  107,  §  1,  making  void  all 
stipulations  limiting  liability  to  less  than 
the  full  amount  of  loss,  if  this  does  not  ex- 
ceed the  amount  of  insurance,  does  not  make 
an  arbitrary,  unreasonable,  and  unnatural 
classification  in  violation  of  Tenn.  Const, 
art.  11,  §  8.  Dugger  use  of  Second  Nat. 
Bank  v.  Mechanics'  &  T.  Ins.  Co.  95  Tenn. 
245,  32  S.  W.  5,  28:  796 

409.  An  insurance  company  is  not  denied 
the  equal  protection  of  the  laws  by  a  stat- 
ute which  in  effect  limits  the  liability  of  a 
railroad  company  for  fires  to  the  difference 
between  the  amount  of  loss  and  the  amount 
of  insurance  on  the  property  destroyed, 
thus  depriving  the  insurer  of  the  benefit  of 
subrogation.  Leavitt  v.  Canadian  P.  R,  Co. 
90  Me.  153,  37  Atl.  886,  38:  152 

410.  The  equal  protection  of  the  laws  is 
not  denied  by  Tenn.  Acts  Gen.  Assem.  1893, 
chap.  107,  §  1,  making  void  all  stipulations 
in  insurance  policies  limiting  liability  to 
less  than  the  full  amount  of  loss  if  this 
does  not  exceed  the  amount  of  insurance. 
Dugger  use  of  Second  Nat.  Bank  v.  Me- 
chanics' &  T.  Ins.  Co.  95  Tenn.  245,  32  S. 
W.  5,  28:  796 

411.  A  statute  imposing  a  penalty  upon 
a  fire  insurance  company  for  refusal,  in 
bad  faith,  to  pay  the  amount  due  upon  a 
policy,  and  also  a  like  penalty  upon  an 
insured  who  institutes  an  action  in  bad 
faith,  is  not  void  as  a  special  regulation  of 
the  business  of  insurance,  which  no  dif- 
ferences between  that  and  other  kinds  of 
business  justify.  Continental  Fire  Ins.  Co. 
v.  Whitaker,  112  Tenn.  151,  79  S.  W.  119, 

64:  451 
Telegraph  companies. 

412.  A  statute  rendering  telegraph  com- 
panies liable  for  mental  anguish  caused 
by  failure  to  promptly  transmit  and  de 
liver  messages  does  not  deprive  them  of 
pi-operty  without  due  process  of  law,  or 
deny  them  the  equal  protection  of  the 
laws.  Simmons  v.  Western  U.  Teleg.  Co. 
63  S.  C.  425,  41  S.  E.  521,  57:  607 


588 


CONSTITUTIONAL  LAW,  IL  a,  3. 


Street  railways. 

Special  Legislation  as  to,  see  Statutes,  302, 

303,  308. 
See  also  infra,  566-568. 
For  Editorial  Notes,  see  infra,  IIL  §   17. 

413.  A  street  railway  company  is  not  de- 
nied the  equal  protection  of  the  laws,  or 
due  process  of  law,  by  giving  it  the  privi- 
lege of  using  tne  streets  only  upon  condi- 
tions different  from  those  which  have  been 
imposed  on  other  companies.  Chicago  Gen- 
eral R.  Co.  V.  Chicago,  176  111.  253,  52  N.  E. 
880,  66:  959 

414.  Requiring  street  car  companies  to 
keep  the  surface  of  the  streets  between 
their  outer  rails  clean  does  not  illegally 
discriminate  against,  or  cast  the  public 
burden  upon,  them,  where  their  tracks  tend 
to  accumulate  dirt,  and  make  the  crown  of 
the  street  flat,  so  as  to  render  the  cleaning 
of  the  street  much  more  difficult  than  it 
otherwise  would  be.  Chicago  v.  Chicago 
Union  Traction  Co.  199  111.  259,  65  N.  E. 
243,  59:  666 

6.  Railroad  Companies;  Carriers. 

Due  Process  of  Law  as  to  Right  of  Action 

or  Defense  against,  see  infra,  II.  b,  7, 

b,  (1),  (b). 
Police  Power  as  to,  see  infra,  1014,  1015. 
Unconstitutionality   as  to  Third   Person  as 

Defense,  see  Action  or  Suit,  58. 
Special  Legislation  as  to,  see  Statutes,  308- 

313. 
See   also    supra,  356,   368;    infra,   561,   571, 

575-580. 
For  Editorial  Notes,  see  infra,  III.  §  7. 

415.  Railway  companies  are  persons  with- 
in the  provisions  of  U.  S.  Const.  14th 
Amend.  §  1,  rp'ating  to  due  process  of  law 
and  the  equal  protection  of  the  laws.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  v.  Backus,  133 
Ind.  513,  .33  N.  E.  421,  18:  729 

416.  Railroad  corporations  are  persons 
within  the  constitutional  provisions  as  to 
equal  privileges  and  immunities  of  citizens 
and  the  equal  protection  of  persons.  Pitts- 
burgh, C.  C.  &  St.  L.  R.  Co.  V.  Montgomery, 
152  Ind.  1,  49  N.  E.  582,  69:  875 

417.  A  statute  forbidding  any  officer  of 
a  railroad  or  mining  corporation  to  con- 
duct or  be  interested  in  any  mercantile 
business  in  a  certain  county,  without  mak- 
ing such  a  restriction  on  the  officers  of 
other  corporations,  is  in  violation  of  the 
constitutional  guaranty  of  the  equal  pro- 
tection of  the  laws.  Luman  v.  Ilitchins 
Bros.  Co.  90  Md.  14,  44  Atl.  1051,     46:   393 

418.  An  exception  of  all  railroads  char- 
tered before  a  certain  date,  from  the  provi- 
sions of  a  statute  of  limitations,  does  not 
denv  them  the  equal  protection  of  the  laws. 
Narron  v.  Wilmington  &  W.  R.  Co.  122  N. 
C.  856.  29  S.'E.  356,  40:  415 

419.  A  statute  requiring  a  report  on  a 
blackboard  as  to  whether  trains  are  on 
time,  at  every  station  where  there  is  a 
telegraph  office,  is  not  unconstitutional  as 
•lass  legislation,  where  it  applies  uniform- 
ly to  all  persons  operating  railroads  and  to 


the  same  class  of  stations.  State  v.  Indi- 
ana &  L  S.  R.  Co.  133  Ind.  69,  32  N.  E. 
817,  18:  502 

420.  The  free  transportation  of  shippers 
of  stock  to  and  from  the  destination  of  the 
stock,  which  is  required  of  railroad  com- 
panies by  Kan.  Laws  1897,  chap.  167,  is  in 
violation  of  the  constitutional  guaranties 
of  due  process  of  law  and  of  the  equal  pro- 
tection of  the  laws.  Atchison,  T.  &  S.  F. 
R.  Co.  V.  Campbell,  61  Kan.  439,  59  Pac. 
1051,  48: 251 
Rates. 

Due  Process  of  Law  as  to,  see  infra,  741- 

745. 
Special  Legislation  as  to,  see  Statutes,  302, 

303. 
For  Editorial  Notes,  see  infra,  III.  §  17. 

421.  Only  when  rates  of  fare  are  so 
unreasonable  as  to  make  the  enforcement 
of  the  law  establishing  them  equivalent  to 
taking  property  without  compensation,  will 
the  corporation  be  held  to  have  been  de- 
prived of  its  property  without  due  pro- 
cess of  law,  or  denied  the  equal  protection 
of  the  laws.  Chicago  Union  Traction  Co.  v. 
Chicago,  199  111.  484,  65  N.  E.  451,  59:  631 
Sale  of  tickets. 

Due  Process  of  Law  as  to,  see  infra,  751- 

753. 
Police  Power  as  to,  see  infra,  1016. 
See  also  Carriers,  1019,  1020. 

422.  A  statute  allowing  the  sale  of  car- 
riers' tickets  only  by  agents  appointed  in  a 
particular  manner,  and  providing  for  the 
redemption  of  unused  tickets,  is  not  uncon- 
stitutional as  class  legislation  granting 
special  privileges  to  carriers.  State  v.  Cor- 
bett,  57  Minn.  345,  59  N.  W.  317,       24:  498 

423.  The  privileges  or  immunities  of  citi- 
zens under  the  Federal  Constitution,  or  un- 
der the  Constitution  of  Illinois,  which  pro- 
vides that  the  general  assembly  shall  not 
pass  special  laws  granting  any  special  or  ex- 
elusive  privilege,  immunity,  or  franchise,  are 
not  infringed  by  a  statute  prohibiting  the 
sale  of  railroad  or  steamboat  tickets  with- 
out a  certificate  of  authority  from  the  car- 
rier, except  when  one  who  has  bought  a 
ticket  from  such  agent  with  the  bona  fide 
intention  of  traveling  upon  it  makes  the 
sale.  Burdick  v.  People,  149  111.  600,  36 
N.  E.  948,  24:  152 
Smoke. 

As  to  Smoke  Generally,  see  supra,  347. 

424.  The  exclusion  of  locomotive  engines 
and  steamboats  from  the  provisions  of  a 
statute  making  the  emission  of  dense  smoke 
into  the  air  a  penal  offense  Is  not  void  as 
denying  the  persons  to  whom  it  applies 
the  equal  protection  of  the  law.  State 
V.  Tower,  185  Mo.  79,  84  S.  W.  10,  68:  402 
Causing  death  or  injury. 

425.  A  statute  giving  a  right  of  action 
against  railroad  companies  only,  for  negli- 
gence causing  death,  is  not  unconstitution- 
al as  denying  to  such  corporations  the  equal 
protection  of  the  law.  Louisville  Safety 
Vault  &  T.  Co.  v.  Louisville  &  N.  R.  Co. 
92  Ky.  233,  17  S.  W.  567,  14:  579 

426.  A  statute  making  a  railroad  com- 
pany liable  for  injuries  to  servants  through 


CONSTITUTIONAL  LAW,  II.  a.  4. 


589 


the  negligence  of  fellow  servants  does  not 
violate  the  equality  clause  of  the  Federal 
Constitution,  although  it  does  not  confine 
such  liability  to  acts  performed  in  the 
operation  of  trains,  but  extends  it  to  risks 
similar  to  those  incurred  by  the  employees 
of  persons  or  corporations  engaged  in  other 
lines  of  work.  Call,  ban  v.  St.  Louis  Mer- 
chants' Bridge  T.  R.  Co.  170  Mo.  473,  71  S. 
W.   208,  60:  249 

427.  A  statute  making  railway  companies 
liable  to  employees  for  negligence  of  fellow 
servants  must,  to  avoid  the  imputation  of 
class  legislation,  be  construed  to  apply  only 
to  the  peculiar  hazards  incident  to  the  use 
and  occupation  of  railroads,  and  injuries 
resulting  from  such  dangers.  Johnson  v. 
St.  Paul  &  D.  R.  Co.  43  Minn.  ^22,  45  N. 
W.  156,  "  8:  419 
Killing  stock. 

Due  Process  of  Law  as  to,  see  infra,  847- 
851. 

428.  A  railroad  company  is  denied  the 
equal  protection  of  the  laws  by  a  statute 
attempting  to  create  an  absolute  liability 
for  stock  killed  or  injured  by  trains,  and  al- 
lowing .the  amount  of  recovery  to  be  de- 
termined without  proof  of  the  actual  value 
of  the  animals.  Wadsworth  v.  Union  P. 
R.  Co.  18  Colo.  600,  33  Pac.  515,  23:  812 
Fires. 

Due  Process  of  Law  as  to,  see  infra,  845- 

846. 
Police  Power  as  to,  see  infra,  952. 

429.  There  is  no  constitutional  objection 
against  making  a  railroad  company  abso- 
lutely liable  for  the  injury  caused  by  fire 
set  out  by  its  locomotives  along  the  line  of 
its  road.  Campbell  v.  Missouri  P.  R.  Co. 
121   Mo.  340,  25  S.  W.  936,  25:  175 

430.  The  privileges  or  immunities  of  citi- 
zens are  not  abridged  by  a  statute  making 
railroad  corporations  liable  for  fires  on  its 
right  of  way  or  set  by  its  engines.  Mc- 
Candless  v.  Richmond  &  D.  R.  Co.  38  S.  C. 
103,  16  S.  E.  429,  18:  440 

431.  The  equal  protection  of  laws  is  not 
denied  to  railroad  companies  by  a  statute 
making  them  liable  for  fires  set  by  en- 
gines without  regard  to  negligence.  Mat- 
thews V.  St.  Louis  &  S.  F.  R.  Co.  121  Mo. 
298,   24   S.   W.   591,  25:  161 

[Aff'd  by  the  Supreme  Court  of  the 
United  States  in  165  U.  S.  1,  41  L.  ed. 
611,  17  Sup.  Ct.  Rep.  243.] 

432.  The  equal  protection  of  the  law  is 
not  denied  to  railroad  corporations  by  stat- 
utes making  them  liable  for  fires  set  by 
their  engines  or  upon  their  right  of  way 
by  the  act  of  their  agents  or  servants,  and 
giving  them  an  insurable  interest  in  the 
property  exposed  to  such  loss.  McCandless 
v.  Richmond  &  D.  R.  Co.  38  S.  C.  103,  16 
S.  E.  429,  18:  440 

433.  No  restraints,  disqualifications,  or 
burdens  are  placed  upon,  or  discriminations 
made  against,  railroad  corporations,  within 
the  prohibition  of  S.  C.  Const,  art.  1,  §  12, 
by  a  statute  applicable  only  to  the  ope- 
rators of  railroads,  making  them  liable  for 
all    fires   set   out    by    their    engines    or    on 


their  rights  of  way,  if  it   applies  equally 
and  uniformly  to  them.  Id. 

434.  A  statute  making  every  railroad 
corporation  liable  for  all  damages  by  fire 
caused  by  operating  its  road  is,  in  view 
of  the  fact  that  all  railroads  are  run  by 
corporations,  properly  construed  to  apply  to 
all  persons  operating  a  railroad,  whether 
technically  incorporated  or  not,  and  there- 
fore does  not  unjustly  discriminate  against 
corporations.  Union  P.  R.  Co.  v.  DeBusk, 
12  Colo.  294,  20  Pac.  752,  3:  350 
Taxes. 

435.  A  railroad  company  is  not  denied 
the  equal  protection  of  the  laws  in  the  as- 
sessment of  its  property  because  original 
jurisdiction  of  the  assessment  and  valu- 
ation is  given  to  a  state  board  of  tax  com- 
missioners which  has  power  to  hear  griev- 
ances and  make  corrections,  instead  of  be- 
ing given  in  the  first  instance  to  a  county 
board,  as  in  the  case  of  other  property, 
with  the  right  of  appeal  to  the  state  board. 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Backus, 
133  Ind.  513,  33  N.  E.  421,  18:  729 

436.  The  fire  tax  imposed  by  Kan.  Laws 
1895,  chap.  263,  is  in  violation  of  the  con- 
stitutional provision  for  equal  protection 
of  the  laws,  because  railroad  companies  are 
excluded  by  the  provisions  of  the  law  from 
its  benefits,  although  their  property  is  sub- 
ject to  the  tax.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Clark,  60  Kan.  826,  58  Pac.  477, 

47:77 

437.  The  exemption  from  road  duty  of 
the  employees  of  a  certain  railroad  corpora- 
tion will  not  be  held  unconstitutional  as 
the  grant  of  a  special  privilege  to  particular 
persons,  where  it  does  not  appear  that  the 
purpose  of  the  legislature  was  not  to  pro- 
vide for  the  safety  and  security  of  the 
persons  and  property  carried  by  such  com- 
pany. State  V.  Womble,  112  N.  C.  862,  17 
S.  E.  491,  19:  827 

4.  As  to  Taxes  and  Assessments. 

Against  Railroad  Companies^  see  supra,  435- 
437. 

As  to  License  Taxes,  see  infra,  II.  a,  5. 

Due  Process  of  Law  as  to,  see  infra,  II.  b, 
3,  881-889. 

Right  of  Appeal  on  Ground  that  Constitu- 
tional Question  Involved,  see  Appeal 
and  Error,  67. 

As  to  Uniformity  of  Assessments  General- 
ly,  see   Public   Improvements,   54-62. 

As  to  Equality  and  Uniformity  of  Taxation, 
see  Taxes,  I.  c;  V.  b. 

Special  Legislation  as  to,  see  Statutes,  281, 
361-366,  375. 

As  to  Taxes  Generally,  see  Taxes. 

See  also  supra,  377,  378,  404,  infra,  562,  657, 
662,  671. 

For  Editorial  Notes,  see  infra,  III.  §  7. 

438.  The  equal  protection  of  the  laws  is 
not  denied  by  a  statute  permitting  the 
deduction  of  mortgage  indebtedness  to  the 
extent  of  $700  from  the  assessed  value  of 
real  estate.  State  ex  rel.  Lewis  v.  Smith, 
158  Ind.  543,  63  N.  E.  25,  63:  116 

439.  The  taxation  by  a  state  of  debts  due 


590 


CONSTITUTIONAL  LAW,  IL  a.  5. 


by  solvent  debtors  is  not  forbidden  by  the 
clause  of  the  amendment  to  the  Federal 
Constitution  forbidding  any  state  to  deny 
to  any  person  the  equal  protection  of  the 
laws,  although  no  tax  is  laid  on  debts 
due  by  insolvents.  Kingsley  v.  Merrill, 
122  wis.  185,  99  N.  W.  1044,  67:  200 

Succession  tax. 
Due  Process  of  Law  as  to,  see  infra,  665- 

667. 
I'niformity    of    Succession    Tax    Generally, 

see  Taxes,  V,  b. 

440.  The  right  to  transmit  property  at 
death  free  from  a  succession  tax  is  not 
within  the  constitutional  right  of  acquir- 
ing, possessing,  and  protecting  property. 
State  V.  Hamlin,  86  Me.  495,  30  Atl.  76, 

25:  632 

441.  An  inheritance  tax  does  not  deny  to 
anyone  the  equal  protection  of  the  laws 
because  it  exempts  estates  less  than  $7,500 
each.  State  ex  rel.  Gelsthorpe  v.  Furnell, 
20  Mont.  299,  51  Pac.  267,  39:  170 

442.  The  provision  of  U.  S.  Const.  14th 
Amend.  §  1,  that  no  state  shall  deny  to 
any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,  is  not  broader 
than  the  provision  of  the  Ohio  Bill  of 
Rights,  §  2,  that  government  is  instituted 
for  the  equal  protection  and  benefit  of  the 
people;  and  a  statute  imposing  an  inheri- 
tance tax  authorized  by  the  latter  provision 
will  not  conflict  with  the  former.  State 
ex  rel.  Schwartz  v.  Ferris,  53  Ohio  St.  314, 
41  N.  E.  579,  30:  218 

443.  A  tax  on  gifts,  legacies,  and  collater- 
al inheritances,  which  operates  alike  on'  all 
property  and  persons  similarly  situated, 
and  which  is  made  by  a  judicial  officer, 
after  notice  and  opportunity  to  be  heard, 
does  not  conflict  with  the  provisions  of  U. 
S.  Const.  14th  Amend.  Wallace  v.  Meyers, 
38  Fed.  184,  4:  171 

444.  A  collatei'al -inheritance  tax  statute 
which  exempts  from  its  provisions  domes- 
tic institutions  organized  for  purely  char- 
itable purposes,  but  does  not  exempt  such 
Institutions  when  incorporated  in  other 
states,  even  though  some  of  their  charitable 
work  is  carried  on  within  the  state,  is  not 
obnoxious  to  the  Ohio  Bill  of  Rights,  .  § 
2,  forbidding  the  grant  of  special  privi- 
leges or  immunities,  or  to  the  provision  of 
U.  S.  Const.  14th  Amend.,  against  the 
abridgment  of  privileges  or  immunities  of 
citizens  and  the  denial  of  the  equal  protec- 
tion 6f  the  law.  Humphreys  v.  State 
(Ohio)  70  N.  E.  957,  65:  776 

445.  The  exemption  by  the  Ohio  inherit- 
ance tax  law  of  Apdl  20,  1894,  of  estates 
of  $20,000  and  under  from  all  taxation, 
while  no  exemption  is  allowed  estates  ex- 
ceeding such  amount,  and  the  taxation  of 
larger  estates  at  a  higher  rate  than  smaller 
ones,  renders  the  act  unconstitutional  as 
violating  the  Ohio  Bill  of  Rights,  &  2,  de- 
claring that  all  political  power  is  inherent 
in  the  people,  f.nd  that  government  is  in- 
stituted for  their  equal  protection  and  bene- 
fit. State  ex  rel.  Schwartz  v.  Ferris,  53 
Ohio  St.  314,  42  N.  E.  427,  30:  218 


Assessments  for  local  improvements. 

Due  Process  of  Law  as  to,  see  infra,  668- 

673,   890-894. 
Police  Power  as  to,  see  infra,  951. 

446.  The  extension  of  the  time  for  pay- 
ing an  assessment  for  a  local  improvement, 
in  favor  of  tliose  who  waive  objections  to 
its  validity,  does  not  deprive  those  who 
fail  to  make  the  waiver,  and  who  are  there- 
fore required  to  pay  when  the  assessment 
is  due,  of  the  equal  protection  of  the  laws. 
Sisson  V.  Buena  Vista  County,  128  Iowa, 
442,  104  N.  W.  454,  70:  440 

5.  As  to  Regulation   of  Business;    License. 

a.  In  General. 

As   to   Nonresidents   or   Aliens,    see   supra, 

369-373. 
Due  Process  of  Law   as  to,   see  infra,  II. 

b,  4. 
As  to  Fishing,  see  Fisheries,  7. 
Uniformity    and    Equality    as    to    License, 

see  License,  II.  d. 
Special  Legislation  as  to,  see  Statutes,  281, 

349. 
See  also  supra,  399;  infra,  1025. 
For  Editorial  Notes,  see  infra.  III.  §§  6,  7. 

447.  A  statute  avoiding  a  sale  in  bulk  of 
a  stock  of  goods  unless  certain  steps  are 
taken  in  favor  of  persons  who  have  sold 
good  or  loaned  money  for  continuance  of 
the  business,  and  rendering  the  vendee  lia- 
ble to  pay  their  claims,  is  void  as  denying 
other  creditors  the  equal  protection  of  the 
laws.  McKinster  v.  Sager,  163  Ind.  671, 
72  N.  E.  854,  68:  273 

448.  The  legislature  cannot  confine  the 
use  of  low-test  petroleum  products  for  il- 
luminating purposes  to  apparatus  of  one 
maker,  where  there  is  other  apparatus  on 
the  market  designed  for  the  same  use, 
which  is  equally  safe  and  secures  the  same 
results,  and  where  the  Constitution  pro- 
hibits the  grant  to  any  citizen  of  privileges 
or  immunities  which  upon  the  same  terms 
shall  not  equally  belong  to  all  citizens. 
State  v.  Santee,  111  Iowa,  1,  82  N.  W.  445, 

53:  763 

449.  An  ordinance  requiring  a  license 
for  the  business  of  contracting  for  public 
work  is  unconstitutional  because  it  tends 
to  create  a  monopoly  and  increase  the  bur- 
den of  property  owners,  where  the  statutes 
require  the  cost  of  improvements  to  be 
assessed  upon  abutting  owners  by  the 
front  foot.  Figg  v.  Thompson,  105  Ky.  509, 
49  S.  W.  202,  44:  136 
As  to  use  of  flag. 

Due  Process  of  Law  as  to,  see  infra,  767. 
Police  Power  as  to,  see  infra,  1007. 

450.  An  unconstitutional  discrimination 
is  made  by  the  law  which  permits  the  use 
of  the  national  flag  for  public  or  private 
exhibitions  of  art,  but  forbids  its  use,  under 
penalty,  for  advertising  purposes  generally. 
Ruhstrat  v.  People,  185  111.  133,  57  N.  E. 
41,  49:  181 

451.  A  state's  forbidding  the  use  of  the 
national  flag  for  advertising  purposes  is  an 


CONSTITUTIONAL  LAW,  IL  a,  5, 


591 


interference  with  constitutional  privileges 
and  immunities  of  citizens  of  the  United 
States.  Id. 

Use  of  streets. 
Special  Legislation  as  to,  see  Statutes,  375. 

452.  A  tax  upon  the  privilege  of  using 
city  streets  is  not  invalid  because  limited 
to  residents  of  the  city.  Ft.  Smith  v. 
Scruggs,  70  Ark.  549,  69  S.  W.  679,  58:  921 
Cutting  ice. 

453.  A  statute  which  forbids  the  cutting 
of  ice  on  meandered  lakes  for  shipment  out 
of  the  state,  except  upon  procurement  of 
a  license  to  do  so  and  payment  therefor, 
but  which  permits  the  taking  of  ice  with- 
out compensation,  for  domestic  consump- 
tion, violates  U.  S.  Const.  14th  Amend., 
guaranteeing  to  all  people  the  equal  pro- 
tection of  the  laws.  Rossmillef^v.  State, 
114  Wis.  169,  89  N.  W.  839,  58:  93 
Mining  rock. 

454.  A  statute  giving  discretion  to  grant 
or  refuse  a  license  to  mine  phosphate  rock 
in  the  beds  of  the  navigable  streams  which 
are  held  by  the  state  in  trust  for  the  pub- 
lic does  not  violate  the  14th  Amendment 
cf  the  United  States  Constitution  by  dis- 
criminating against  those  to  whom  a  li- 
cense is  refused,  as  the  license  is  in  the 
nature  of  a  special  privilege,  and  not  -a 
right  common  to  all.  Port  Royal  Min.  Co. 
V.  Hagood,  30  S.  C.  519,  9  S.  E.  686,  3:  841 
Race  courses. 

Special  Legislation  as  to,  see  Statutes,  328. 

455.  A  statute  allowing  licenses  for  race 
courses  in  the  counties,  towns,  and  cities  in 
which  such  race  courses  already  exist,  in  the 
discretion  of  the  local  authorities,  but  re- 
quiring a  three-fourths  vote  for  a  declara- 
tion that  it  is  a  public  necessity,  in  order 
to  license  any  new  race  course,  is  unconsti- 
tutional as  granting  exclusive  "privileges, 
immunities,  and  franchises."  State,  Alex- 
ander, Prosecutor,  v.  Elizabeth  (N.  J.  Sup.) 
56  N.  J.  L.  71,  28  Atl.  51,  23:  525 
Garbage. 

Police  Power  as  to,  see  infra,  1006. 

456.  An  exclusive  privilege  to  one  per- 
son to  collect  and  remove  those  noxious 
and  unwholesome  substances  which  are 
nuisances  per  se  and  a  menace  to  public 
health  may  be  granted  by  a  city  as  an  ex- 
ercise of  the  police  power,  and  is  not  an 
invasion  of  personal  rights  or  an  unlaw- 
ful creation  of  a  monopoly.  Her  v.  Ross, 
04  Neb.  710,  90  N.  W.  869,"  57:  895 

457.  A  city  cannot  grant  a  monopoly  to 
one  individual,  by  contract,  to  enter  upon 
the  private  premises  of  the  inhabitants  of 
the  city,  and  at  their  expense  collect  and 
remove  those  innoxious  substances,  such 
as  ashes,  cinders,  stable  manure,  or  other 
substances  not  in  themselves  nuisances, 
though,  if  allowed  to  accumulate  in  unrea- 
sonable quantities,  they  would  become  such, 
or  which  may  be  utilized  for  some  benefi- 
cial purpose,  since  such  an  attempted  exer- 
cise of  power  is  an  invasion  of  the  personal 
and  property  rights  of  the  citizens,  in  re- 
straint of  trade,  and  unnecessarily  creates 
a  monopoly.  Id. 

458.  An  ordinance  making  it  unlawful  to 


engage  in  the  business  of  a  scavenger  with- 
out having  a  license,  and  giving  to  licensed 
scavengers,  two  or  more  of  whom  shall  be 
appointed  by  the  mayor,  the  exclusive  priv- 
ilege of  cleaning  privy  vaults  and  cesspools 
and  removing  garbage. from  private  prem- 
ises as  well  as  from  streets,  is  unconstitu- 
tional as  an  attempt  to  create  a  monopoly 
of  a  lawful  calling, — especially  where  the 
Constitution  provides  that  special  privi- 
leges or  immunities  shall  not  be  granted  by 
any  tribunal  or  agency  except  the  legisla- 
ture.    Re  Lowe,  54  Kan.  757,  39  Pac.  710, 

27:  545 

459.  The  exclusive  privilege  of  removing 
garbage,  given  by  a  municipal  contract,  is 
not  an  exclusive  fr'anchise  within  Neb. 
Const,  art.  3,  §  15,  prohibiting  local  or  spe- 
cial laws  granting  any  special  or  exclusive 
privilege,  immunity,  or  franchise,  but  is 
a  mere  sanitary  arrangement  within  the 
police  power.  Smiley  v.  MacDonald,  42 
Neb.  5,  60  N.  W.  355,  27:  540 

460.  A  municipal  contract  for  the  removal 
of  garbage,  givmg  the  contractor  an  ex- 
clusive right  to  remove  it  at  a  certain  price 
per  pound,  payable  by  the  persons  who  pro- 
duce the  garbage,  is  simply  a  sanitary  regu- 
lation, which  cannot  be  considered  as  in 
the  nature  of  a  confiscation  or  an  attempt  to 
crc^.te  a  monopoly.  Walker  v.  Jameson,  140 
Ind.  591,  37  N.  E.  402,  39  N.  E.  869,     28:  679 

461.  An  ordinance  requiring  a  license  for 
the  doing  of  scavenger  work  in  the  city  and 
providing  that  all  persons  proposing  to  do 
such  work  must  submit  bids,  and  that  the 
board  of  health  shall  decide  who  are  compe- 
tent bidders,  and  fixing  the  times  at  which 
closets  shall  be  cleaned,  is  void  as  in  dero- 
gation of  common  right,  where  no  necessity 
is  shown  therefor,  and  the  effect  would  be 
to  prohibit  property  owners  themselves  from 
removing  the  refuse  from  their  own  prem- 
ises. State  V.  Hill,  126  N.  C.  1139,  36  S.  E. 
326,  50:  473 
Laundrymen. 

462.  The  fact  that  Chinamen  are  engaged 
in  the  hand  laundry  business  does  not  make 
invalid  a  statute  imposing  a  license  fee  of 
$25  on  a  male  laundry  man  employing  one 
or  more  other  persons  in  such  business,  while 
the  fee  for  a  steam  laundry  is  $15,  where 
the  law  in  its  terms  applies  to  all  male 
laundrymen  of  every  condition  and  national- 
ity. State  e.x  rel.  Toi  v.  French,  17  Mont. 
54,  41  Pac.  1078,  30:  415 
Insurance  agents. 

463.  The  imposition  of  a  license  tax  upon 
insurance  agents  and  solicitors  representing 
any  insurance  company  not  located  within 
the  city  is  invalid  because  unequal,  unjust, 
and  partial.  Simrall  v.  Covington,  90  Ky. 
444,  14  S.  W.  369,  9:  556 
Real  estate  dealers. 

404.  The  exemption  of  real-estate  dealers 
and  contractors,  ^'•hose  business  does  not 
amount  to  $1,000  per  annum,  from  the  op- 
eration of  an  ordinance  imposing  a  license 
tax  for  the  privilege  of  transacting  business 
is  unconstitutional  and  void  as  class  legis- 
lation, where  such  contractors  and  dealers 
are  classified   with   other   persons   effecting 


592 


CONSTITUTIONAL  LAW,  IL  a,  5. 


sales,  to  whom  a  similar  exemption  is  not 
allowed.  Com.  use  of  Titusville  v.  Clark, 
195   Fa.   634,  46  Atl.  286,  67:348 

Milk  dealers;  dairies. 
See  also  infra,  682. 

465.  The  equal  protection  of  the  laws  is 
not  denied  to  persons  who  supply  milk  to 
cities,  towns,  and  villages  for  consumption, 
by  a  statute  compelling  them  to  register 
their  herds  or  cattle  with  the  live-stock 
sanitary  board,  where  it  applies  to  all  per- 
sons of  that  class,  though  it  does  not  apply 
to  every  person  who  may  occasionally  sell 
milk  in  the  country,  btate  v.  Broadbelt, 
89  Md.  565,  43  Atl.  771,  45:  433 

466.  Equal  prot^ftion  of  the  laws  is  not 
denied  to  milk  dealers  by  requiring  them  to 
furnish  samples  for  analysis.  State  v.  Du- 
paquier,  46  La.  Ann.  577,   15  So.  502, 

26:  162 

467.  An  ordinance  of  a  municipality  hav- 
ing power  to  prohibit  and  regulate  dairies 
within  the  city  limits,  forbidding  a  dairy 
within  such  limits  unless  permission  for 
their  maintenance  is  obtained  from  the 
city  council,  is  not  void  as  providing  for  spe- 
cial privileges.  St.  Louis  v.  Fischer,  167 
Mo.  654,  67  S.  W.  872,  64:  679 
Hiring  persons  to  be  employed  outside  of 

state. 

468.  A  discrimination  in  favor  of  per- 
sons hiring  laborers  to  be  employed  within 
the  state,  by  exempting  them  from  a  license 
tax  imposed  upon  those  who  are  engaged  in 
hiring  persons  to  be  employed  outside  the 
state,  does  not  amount  to  a  denial  to  the 
latter  of  the  equal  protection  of  the  laws. 
Williams  v.  Fears,  110  Ga.  584,  35  S.  E. 
699,  50:  685 

469.  The  right  of  a  citizen  to  move  from 
one  state  to  another  is  not  so  restricted  as 
to  abridge  his  privileges  or  immunities  as 
a  citizen  of  the  United  States,  by  a  law 
imposing  a  tax  upon  emigrant  agents  who 
hire  persons  in  the  state  for  employment 
outside  the  state.  Id. 
Humane  society. 

470.  The  privilege  of  a  humane  .society  to 
keep  dogs  without  paying  any  license  fee, 
which  is  conferred  by  N.  Y.  Laws  1896, 
chap.  448,  while  every  other  citizen  is 
obliged  to  pay  such  fee,  is  the  grant  of  an 
exclusive  privilege  and  immunity  forbid- 
den by  N.  Y.  Cornet,  art.  3,  §  18.  Fox  v. 
Mohawk  &  H.  R.  Humane  Soc.  165  N.  Y. 
517,  59  N.  E.  353,  51:  681 
Manufacturers  or  merchants. 

Due  Process  of  Law  as  to,  see  infra,  756- 

761. 
See  also  infra,  761. 

471.  A  law  requiring  manufacturers  of 
baking  powrler  to  affix  a  label  to  every  box 
or  can  containing  the  name  and  residence  of 
the  manufacturer  and  a  statement  of  the 
ingredients  of  which  the  powder  is  com- 
posed (Minn.  Gen.  Laws  1899,  chap.  245), 
is  not  class  legislation,  or  an  infringement 
upon  private  rights,  but  is  a  valid  exercise 
of  the  police  power.  State  v.  Sherod,  80 
ninn.  446,  83  N.  W.  417,  50:  660 


472.  A  regulation  of  temporary  or  tran- 
sient dealers  is  not  invalid  as  class  legisla- 
tion. State  V.  Foster,  22  R.  I.  163,  46  Atl. 
833,  50:  339 

473.  An  ordinance  applying  to  all  tran- 
sient merchants,  requiring  a  license  fee,  is 
not  unconstitutional  as  class  legislation. 
Ottumwa  V.  Zekind,  95  Iowa,  622,  64  N.  W. 
^46,  29:  734 

474.  The  provision  of  U.  S.  Const.  14th 
Amend.,  that  no  state  shall  deny  to  any 
person  "the  equal  protection  of  the  law," 
is  not  violated  by  a  state  statute  imposing 
a  specific  tax  on  persons  engaged  in  the 
conduct  of,  a  particular  business,  where  all 
persons  of  a  particular  class  designated  and 
described  by  the  special  occupation  in 
which  they  engage  are  subjected  to  the 
same  specific  tax.  Singer  Mfg.  Co.  v. 
Wright,  97  Ga.  114,  25  S.  E.  249,         35:  497 

475.  A  statute  authorizing  the  mayor  and 
certain  other  officers  to  issue  a  license  "to 
such  persons  as  they  find  proper  persons  to 
engage  in  a  temporary  or  transient  busi- 
ness," for  a  fee  not  less  than  $1  nor  more 
than  $100  as  the  authority  issuing  such 
license  may  direct,  and  making  such  busi- 
ness a  misdemeanor  except  in  the  sale  of 
products  of  a  farm  or  the  sea, — is,  so  far  as 
it  applies  to  ordinary  and  lawful  business,  a 
violation  of  the  Connecticut  Bill  of  Rights, 
declaring  that  all  men  "are  equal  in  rights, 
and  that  no  man  or  set  of  men  is  entitled 
to  exclusive  public  emoluments  or  privileges 
from  the  community."  State  v.  Conlon,  65 
Conn.  478,  33  Atl.  519,  31:55 

476.  The  provision  in  an  ordinance  re- 
quiring a  license  tax  from  all  dealers  or 
vendors  of  merchandise,  that  no  manufac- 
turer who  is  a  citizen  of  the  municipality 
shall  be  considered  a  dealer  or  vendor  unless 
he  sells  goods  not  of  his  own  manufacture, 
is  a  proper  classification  and  a  valid  exer- 
cise of  legislative  power.  Com.  use  of  Titus- 
ville V.  Clark,  195  Pa.  634,  46  Atl.  286, 

57:  348 

477.  An  ordinance  imposing  a  license  tax 
on  all  merchants  who  use  any  stamps, 
coupons,  tickets,  cards,  or  other  devices  for 
the  sale  of  goods,  which  entitle  the  pur- 
chaser to  procure  any  goods  free  of  charge 
from  any  other  firm  or  corporation,  does  not 
impose  a  burden  upon  a  portion,  and  not  the 
whole  of  a  class  of  merchants  in  violation 
of  the  constitutional  provision  against  • 
granting  to  any  citizen  or  class  of  citizens 
privileges  or  immunities  which  shall  not 
equally  belong  to  all  citizens,  since  the  or- 
dinance applies  to  all  who  see  fit  to  use 
tickets  of  that  kind.  Fleetwood  v.  Read, 
21  Wash.  547,  58  Pac.  665,  47:  205 
Peddlers,  commission  merchants,  etc. 
Police  Power  as  to,  see  infra,  1023,  1024. 
See  also  supra,  371,  373. 

478.  An  act  requiring  all  merchants  who 
sell  farm  produce  on  commission  to  execute 
a  bond  in  the  penal  sum  of  $5,000,  condi- 
tioned for  the  faithful  performance  of  their 
contracts,  is  unconstitutional  as  class  legis- 
lation and  as  an  unjustifiable  interference 
with  the  right  of  citizens  to  carry  on  legiti- 


CONSTITUTIONAL  LAW,  II.  a,  5, 


5flS 


mate  business.     People  ex  rel.  Valentine  v. 
Coolidge,  124  Mich.  664,  83  N.  W.  594, 

50:  493 

479.  An  exception  of  dealers  in  grain,  live 
stock,  and  dressed  meats  from  the  provi- 
sions of  111.  act  April  24,  1899,  requiring 
commission  merchants  in  cities  of  more  than 
50,000  population  to  be  licensed,  is  not  un- 
constitutional as  an  arbitrary  discrimina- 
tion, since  the  classification  in  this  ease  is 
a  natural  one,  as  the  commission  merchants 
subject  to  the  act  deal  in  the  small  products 

Of  the  farm,  while  other  laws  provide  for  the 
inspection  of  grain,  live  stock,  and  dressed 
meats.  Lasher  v.  People,  183  111.  226,  55 
X.   E.   663,  47:  802 

480.  The  peculiar  characteristics  of  agri- 
cultural products  and  farm  produce,  and  the 
liability  to  peculiar  abuses  resulting  from  a 
sale  thereof  on  commission,  are  such  as  to 
suggest  the  practical  necessity  for  distinc- 
tive legislation  on  the  subject,  different 
from  what  would  be  expedient  or  necessary 
in  the  case  of  other  property  sold  on  com- 
mission, and  to  justify  the  legislature,  in 
its  discretion,  in  putting  those  who  sell 
them  on  commission  in  a  class  by  them- 
selves. State  ex  rel.  Beek  v.  Wagener,  77 
Minn.  483,  80  N.  W.  633,  46:  442 

481.  The  exemption  from  a  statute  to  li- 
cense and  regulate  hawkers  and  peddlers, 
manufacturers,  mechanics,  nurserymen, 
farmers,  and  butchers,  who  sell  their  own 
manufactures,  or  the  products  of  their  own 
nurseries  or  farms,  makes  an  arbitrary  dis- 
tinction between  the  peddling  by  those  per- 
sons and  by  a  purchaser  from  them,  and  is 
therefore  in  violation  of  Minn.  Const,  art. 
4,  §§  33,  34,  prohibiting  partial  class  legis- 
lation. State  ex  rel.  Luria  v.  Wagener,  69 
Minn.  206,  72  N.  W.  67,  38:  677 

482.  A  statute  requiring  itinerant  vend- 
ors who  go  from  place  to  place  and  tempo- 
rarily occupy  rooms  for  the  exhibition  and 
sale  of  goods,  to  pay  a  state  license  of  $25 
and  deposit  $500  with  the  state  treasurer  as 
security,  and  then  to  pay  in  addition  a  local 
license  fee  in  each  place  in  which  they  sell 
goods,  amounting  to  a  tax  on  the  value  of 
their  stock  of  goods  according  to  the  rate 
of  the  last  preceding  assessment  of  taxes  in 
that  place, — is  not  unconstitutional,  al- 
though it  is  oppressive.  State  v.  Harring- 
ton. 68  Vt.  622,  35  Atl.  515,  34:  100 

483.  The  provision  of  the  charter  of  the 
village  of  Allegan,  Michigan,  that  the  board 
of  trustees  shall  have  full  power  to  license 
and  regulate  hawkers,  hucksters,  and  ped- 
dlers, will  not  validate  the  by-law  requiring 
a  license  fee  from  persons  selling  fresh  meat 
in  the  streets  in  less  than  specified  quanti- 
ties, where  the  sale  of  no  other  food  what- 
ever is  licensed.  Such  a  by-law  is  an  exer- 
cise of  arbitrary  class  legislation  for  the 
benefit  of  shopkeepers,  and  is  not  an  exer- 
cise of  police  power  in  the  interest  of  the 
public  health.  Chaddock  v.  Day,  75  Mich. 
527,  42  N.  W.  977,  4:  809 

484.  The  exemption  of  honorably  dis- 
charged soldiers  of  the  Rebellion,  citizens  of 
the  state,  from  the  provisions  of  a  statute 
requiring    peddlers    to    pay    a    license    tax, 

L.R.A.  Dig.— 38. 


is  a  denial  of  the  equal  protection  of  the 
laws,  within  the  prohibition  of  U.  S.  Const. 
Amend.  14.  State  v.  Shedroi,  75  Vt.  277,  54 
Atl.  1081,  63:  179 

485.  The  exemption  of  persons  who  have 
served  in  the  Union  Army  or  Navy  from  the 
operation  of  Iowa  Code,  §  1347,  requiring 
all  persons  peddling  goods  outside  of  a  city 
or  town  to  pay  a  license  tax,  renders  the 
statute  void  as  in  violation  of  Iowa  Const, 
art.  1,  §  6,.  providing  that  all  laws  of  a  gen- 
eral nature  shall  have  a  uniform  operation, 
and  that  no  privileges  or  immunities  shall 
be  granted  to  any  citizen  or  class  of  citizens 
which  shall  not  equally  belong,  upon  the 
same  terms,  to  all  citizens,  as  the  classifi- 
cation attempted  is  based  on  no  apparent 
necessity,  or  difference  in  conditions  or  cir- 
cumstances, and  is  opposed  to  the  spirit  of 
free  government.  State  v.  Garbroski,  111 
Iowa,  496,  82  N.  W.  959,  56:  570 
Intoxicating  liquors. 

Due  Process  of  Law  as  to,  see  infra,  754-757. 
Police  Power  as  to,  see  infra,  1076-1078. 
Special  Legislation  as  to,  see  Statutes,  376- 

380. 
See  also  supra,  317-319,  321,  386. 
For  Editorial  Notes,  see  infra,  III,  §  7. 

486.  A  person  who  is  denied  a  remedy  in 
the  courts  for  the  purchase  price  of  liquors 
sold  to  enable  the  vendee  to  resell  them  in 
violation  of  law  is  not,  for  that  reason,  de- 
nied the  equal  protection  of  tlie  laws.  Cor- 
bin  V.  Houlehan,  100  Me.  246,  61  Atl.  131, 

70:  568 

487.  The  inalienable  rights  of  citizens  to 
life,  liberty,  and  property  do  not  include  the 
right  to  sell  intoxicating  liquors;  nor  is  this 
one  of  the  privileges  or  immunities  of  a  citi- 
zen of  the  United  States.  State  ex  rel. 
George  v.  Aiken,  42  S.  C.  222,  20  S.  E.  221. 

26:  345 

488.  The  validity  of  an  exercise  by  a  state 
of  its  police  power  in  regulating  the  sale  of 
spirituous  liquors  does  not  in  the  least  de- 
gree depend  on  any  question  as  to  the  pres- 
ence or  absence  of  discrimination  for  or 
against  particular  persons  or  classes  of  per- 
sons. The  legislature  may  lawfully  grant 
the  right  to  sell  to  a  certain  class  or  classes 
of  persons,  and  withhold  it  from  all  others. 
Tragesser  v.  Gray,  73  Md.  250,  20  Atl.  905, 

9:  780 

489.  The  police  power  does  ijot  warrant 
an  arbitrary  discrimination  between  indi- 
viduals in  regulating  the  sale  of  intoxicat- 
ing liquors,  although  as  between  liquor  sell- 
ing and  other  callings  less  harmful  to  the 
public  the  former  may  be  discriminated 
against.  State  ex  rel.  Galle  v.  New  Orleans. 
113  La.  371,  36  So.  999,  67:  70 

490.  No  citizen  of  the  United  States  can 
complain  because  a  state  police  regulation 
denies  him  the  privilege  of  selling  spirituous 
liquors,  even  if  the  privilege  is  granted  to 
other  citizens.  Tragesser  v.  Gray,  73  Md. 
250,  20  Atl.  905,  9:  780 
Welsh  V.  State,  126  Ind.  71,  25  N.  E.  883. 

9:  664 

491.  A  statute  forbidding  keepers  of  sa- 
loons to  permit  women  to  enter  them  for 
the   purpose   of  being  supplied   with   liquor 


594 


CONSTITUTIONAL  LAW.  H.  a.  5. 


does  not  deprive  them  of  their  property 
without  due  process  of  law,  destroy  their 
right  to  pursue  a  lawful  calling,  or  deny 
them  equal  rights  and  privileges  under  the 
law,  where  liquor  cannot  be  sold  without  a 
license.  Adams  v.  Cronin,  29  Colo.  488,  69 
Pac.  590,  63:  61 

Medicine,  dentistry,  etc. 
Due  Process  of  Law  as  to,  see  infra,  677. 
Police  Power  as  to,  see  infra,  1031-1037. 
See  also  Physicians  and   Surgeons,  27. 

492.  The  attempt  to  confer  the  exclusive 
right  to  treat  all  diseases,  physical  or  men- 
tal, real  or  imaginary,  upon  licensed  doc- 
tors, is  unconstitutional.  State  v.  Biggs, 
133  N.  C.  729,  46  S.  E.  401,  64:  139 

493.  A  statute  defining  the  practice  of 
medicine  so  as  to  include  every  method  of 
treating  disease  when  done  for  gain,  and 
requiring  practitioners  to  obtain  a  license 
from  a  board  composed  exclusively  of  doc- 
tors of  medicine,  is  not  unconstitutional  as 
class  legislation.  Territory  v.  Newman 
(N.  M.)   79  Pac.  813,  ^  68:  783 

494.  The  equal  privileges  or  immunities  of 
citizens  are  not  infringed  by  a  statute 
which  exempts  those  who  are  practitioners 
of  medicine  or  surgery  at  the  time  of  its 
passage  from  its  provisions  requiring  a  di- 
plos^a  or  certificate  of  a  state  board  of  ex- 
aminers to  entitle  a  person  to  practise  such 
a  profession.  State  v.  Randolph,  23  Or.  74, 
31  Pac.  201,  17:  470 

495.  A  provision  in  a  statute  regulating 
the  practice  of  dentistry,  that  allows  stu- 
dents under  the  direct  supervision  of  a  pre- 
ceptor or  a  licensed  dentist  to  practise  on 
the  teeth  and  jaws  during  the  period  of  their 
enrolment  in  a  dental  college  and  attend- 
ance upon  a  regular  uninterrupted  course 
therein,  does  not  unlawfully  discriminate 
between  dental  students.  State  v.  Vander- 
sluis,  42  Minn.  129,  43  N.  W.  789,         6:  119 

496.  A  statute  requiring  that  a  person, 
in  order  to  be  eligible  for  examination  for 
license  as  a  dentist,  shall  have  a  diploma 
from  some  dental  college  in  good  standing, 
but  giving  the  board  discretion  to  dispense 
with  this  in  case  of  one  who  has  practised 
dentistry  for  ten  years  before  the  passage 
of  the  act,  is  not  unconstitutional  as  dis- 
criminating between  persons  or  classes,  al- 
though some  may  not  be  pecuniarily  able  to 
attend  a  dental  college.  Id. 

497.  The  discrimination  with  respect  to 
the  right  to  practise  medicine  made  by  Iowa 
Code,  §  2579  allowing  persons  to  practise 
medicine  only  when  they  have  passed  an 
examination  before  the  state  board  of  med- 
ical examiners  or  have  received  a  certificate 
from  a  medical  school  that  is  found  by  the 
board  to  be  of  good  standing,  or  have  prac- 
tised medicine  in  the  state  for  five  years, 
three  of  which  shall  have  been  in  one  lo- 
calitv, — is  not  in  violation  of  Iowa  Const. 
art."!,  §  6,  or  U.  S.  Const.  14th  Amend., 
since  the  classification  made  is  not  arbi- 
trary, and  the  distinction  upon  which  it  is 
based  is  reasonable  and  apparent.  State  v. 
P>air,  112  Iowa,  466,  84  N.  W.  532,       51:  776 

498.  A  statute  requiring  a  license  of  all 
who  announce  to  the  public  their  readiness 


to  heal,  cure,  or  relieve  those  suffermg  'from 
disease  is  not  void  on  the  ground  that  the 
classification  is  unjust  and  arbitrary  be- 
cause it  exempts  duly  licensed  physicians  of 
other  states  whose  practice  extends  into  the 
state,  opticians,  and  nurses.  Parks  v. 
State,  159  Ind.  211,  64  N.  E.  862,        59:  190 

499.  N.  H.  Gen.  Laws,  chap.  132,  to  se- 
cure the  possession  of  requisite  skill  and 
learning  by  practitioners  of  medicine,  sur- 
gery, and  dentistry,  which  excepts  from  its 
provisions  persons  who  have  practised  their 
professions  in  the  place  of  their  present 
residence  for  a  certain  time,  and  also  physi- 
cians residing  out  of  the  state  and  called 
into  the  state  for  consultation,  or  to  attend 
patients  in  the  regular  course  of  business, 
is  unconstitutional  in  discriminating  be- 
tween persons  engaged  in  the  same  business 
or  profession,  and  also  in  discriminating 
against  citizens  of  other  states.  State  v. 
Pennoyer,   65  N.   H.   113,    18  Atl.   878, 

5:  709 

500.  A  graduate  of  a  foreign  medical  col- 
lege is  not  deprived  of  liberty  or  property 
without  due  process  of  law,  or  denied  the 
equal  protection  of  the  laws,  by  being  re- 
quired to  pass  an  examination  before  re- 
ceiving a  license  to  practise,  which  gradu- 
ates of  local  colleges  having  a  specified 
course  of  study,  who  were  matriculated  at 
the  time  of  the  passage  of  the  act,  are  not 
required  to  do.  State  ex  rel.  Kellogg  v.  Cur- 
rans.  111  Wis.  431,  87  N.  W.  561,       56:  252 

501.  A  statute  requiring  the  passing  of 
an  examination  by  a  graduate  of  a  foreign 
medical  college  as  a  prerequisite  to  obtain- 
ing a  license  to  practise  medicine,  which  is 
not  required  of  graduates  of  colleges  in  the 
state,  does  not  violate  the  provisions  of  the 
Federal  Constitution  protecting  the  '^)rivi- 
leges  and  immunities  of  the  citizens  of  the 
several  states  and  of  the  United  States.     Id. 

502.  Requiring  an  applicant  for  a  license 
to  practise  medicine  to  produce  a  diploma 
from  a  medical  school  the  requirements  of 
which  shall  have  been  "in  no  particular  less 
than  those  prescribed"  by  a  specified  asso- 
ciation of  medical  colleges  does  not,  al- 
though such  association  is  composed  of 
schools  teaching  only  one  system  of  medi- 
cine, unjustly  discriminate  against  other 
schools.  Ex  parte  Gerino,  143  Cal.  412,  77 
Pac.  166,  66:  249 

503.  The  authority  to  refuse  certificates 
to  graduates  of  medical  schools  not  in  good 
standing  does  not  extend  special  privileges 
or  immunities  to  other  schools  that  are  de- 
termined to  be  in  good  standing.  Iowa  Ec- 
lectic Medical  College  Asso.  v.  Schrader,  87 
Iowa,  659,  55  N.  W.  24,  20:  355 

504.  Discrimination  in  favor  of  the  gradu- 
ates of  a  regular  college  of  dentistry,  in  a 
statute  requiring  graduates  of  other  uni- 
versities or  colleges  authorized  to  grant  di- 
plomas in  dental  surgery  to  be  examined 
with  reference  to  qualifications,  is  not  an 
arbitrary  and  unconstitutional  discrimina- 
tion in  violation  of  U.  S.  Const.  14th  Amend, 
and  Md.  Declaration  of  Rights,  art.  23. 
State  V.  Knowles,  90  Md.  646,  45  Atl.  877, 

49:  695 


CONSTITU  riOKAL  LAW,  II.  a,  5. 


595 


505.  Constitutional  provisions  forbidding 
the  granting  of  special  privileges  and  im- 
munities, and  requiring  laws  to  have  a  uni- 
form operation,  do  not  prevent  the  legisla- 
ture, when  establishing  a  board  of  medical 
examiners  to  be  appointed  by  the  several 
medical  associations  within  the  state,  from 
permitting  one  society  to  name  more  mem- 
bers than  others  are  permitted  to  name.  Ex 
parte  Gerino,  143  Cal.  412,  77  Pac.  166, 

66:  249 

506.  An  e>»emption  from  a  statute  re- 
quiring a  license  to  practise  medicine,  of 
commissioned  surgeons  of  the  United  States 
Army,  Navy,  or  marine  hospital  service, 
physicians  or  surgeons  in  actual  consulta- 
tion from  other  states,  and  persons  tempo- 
rarily practising  under  supeKvision  of  an 
actual  medical  preceptor,  does  i5ot  create  an 
arbitrary,  unreasonable,  or  unjust  discrimi- 
nation in  violation  of  U.  S.  Const.  14th 
Amend.,  since  the  reasons  for  these  exemp- 
tions are  apparent  and  are  entirely  of  a 
public  character.  Scholle  v.  State,  90  Md. 
729,  46  Atl.  326,  50:  411 

507.  Requiring  a  magnetic  healer  to  pro- 
cure a  license  before  engaging  in  the  healing 
art  does  not  deprive  him  of  his  liberty  or 
property  without  due  process  of  law,  or 
deny  him  the  equal  protection  of  the  laws. 
Parks  V.  State,  159  Ind.  211,  64  N.  E. 
862,  59:  190 

508.  Permitting  the  licensing  of  osteo- 
paths, while  excluding  mental  healing,  is  not 
an  unlawful  discrimination  which  will  ren- 
der the  statute  void.  Id. 

508a.  An  act  regulating  the  practice  of 
medicine  is  not  void  as  discriminating 
against  Christian  Scientists  in  that  it  pre- 
scribes that  anyone  possessing  certain  quali- 
fications may  practise  osteopathy,  and  does 
not  make  especial  provision  for  those  who 
wish  to  practise  Christian  Science.  State  v. 
Marble,  72  Ohio  St.  21,  73  N.  E.  1063, 

70:  835 

509.  A  legislative  enactment  which  dis- 
criminates against  osteopathists  by  requir- 
ing them  to  hold  diplomas  from  a  college 
which  requires  four  years  of  study  as  a  con- 
dition to  their  obtaining  limited  certifi- 
cates which  will  not  permit  them  to  pre- 
scribe drugs  or  perform  surgery,  while  not 
requiring  such  time  of  study  from  those  con- 
templating the  regular  practice  as  a  condi- 
tion to  their  obtaining  unlimited  certifi- 
cates for  the  practice  of  medicine  and  sur- 
geiy,  is,  as  to  such  discrimination,  void,  and 
compliance  therewith  cannot  be  exacted  of 
those  who  practise  osteopathy.  State  v. 
Gravett,  65  Ohio  St.  289,  62  N.  E.  325, 

55:  791 
Banking. 

Due  Process  of  Law  as  to,  see  infra,  680, 
681. 

510.  The  right  to  carry  on  the  business  of 
banking  other  than  that  of  issiiing  bills  or 
paper  credit  to  circulate  as  money  is  a 
common  right  of  citizens  generally,  which 
cannot  be  taken  away  by  a  statute  pro- 
hibiting the  exeixise  of  such  right  except 
by  corporations.  State  v.  Scougal,  3  S.  D. 
55,  51  N.  W.  858,  15:  477 


'  511.  N.  D.  Laws  1890,  chap.  23,  §  27,  to 
provide  for  the  organization  and  govern- 
ment of  state  banks,  prohibiting  all  persons 
from  doing  a  banking  business  in  the  state 
except  persons  organized  under  the  Laws  of 
1890,  is  a  proper  exercise  by  the  legislature 
of  that  branch  of  the  internal  police  power 
of  the  state  which  relates  to  the  public 
safety.  State  ex  rel.  Goodsill  v.  Wood- 
manse,  1  N.  D.  246,  46  N.  W.  970,       11:  420 

512.  N.  D.  Laws  1890,  chap.  23,  §  27,  to 
provide  for  the  organization  and  government 
of  state  banks,  prohibiting  all  persons  from 
doing  a  banking  business  in  the  state  ex- 
cept persons  organized  under  the  laws  of 
1890,  does  not  contravene  either  N.  D.  Const, 
art.  1,  §  1,  or  U.  S.  Const.  14th  Amend. 
§   1.  Id. 

513.  The  equal  privileges  and  immunities 
of  citizens  under  the  South  Dakota  Consti- 
tution include  the  right  of  transacting 
banking  business,  except  so  far  as  it  relates 
to  the  issuing  of  bills  to  circulate  as  monev. 
State  V.  Scougal,  3  S.  D.  55,  51  N.  W.  858,' 

15:  477 

514.  A  statute  making  it  a  misdemeanor 
for  any  banker  to  discount  commercial  paper 
at  more  than  a  cei-tain  rate  per  cent  is  not 
unconstitutional  legislation  because  it  ap- 
plies to  bankers  only.  Youngblood  v.  Bir- 
mingham Trust  &  S.  Co.  95  Ala.  521,  12 
So.  579,  20:  58 

515.  The  license  tax  on  banks  created  by 
the  state,  which  is  imposed  by  Mont.  Pol. 
Code,  §  4061,  although  it  is  not  imposed 
upon  national  banks,  is  not  for  that  rea- 
son in  conflict  with  Mont.  Const,  art.  15, 
§  11,  providing  that  no  corporation  formed 
under  the  laws  of  any  other  country,  state, 
or  territory  shall  have  any  greater  rights  or 
privileges  than  corporations  of  the  "same 
or  similar  character"  created  under  the  laws 
of  the  state,  since  national  banks,  being 
governmental  agencies,  are  not  of  the  same 
or  similar  character  as  banks  created  under 
the  laws  of  the  state.  State  v.  Thomas 
Cruse  Sav.  Bank,  21  Mont.  50,  52  Pac.  733, 

45:  760 

516.  The  discrimination  in  favor  of  banks 
within  the  state,  as  compared  with  national 
banks  outside  the  state,  made  by  Vt.  Stat. 
§  1306,  providing  that  negotiable  paper  may 
be  attached  by  trustee  process  before  notice 
of  transfer,  but  that  negotiable  paper  actu- 
ally transferred  to  a  bank  in  the  state  be- 
fore due'  shall  be  exempt  from  attachment, 
does  not  make  the  statute  invalid  on  the 
ground  that  it  tends  to  impair  the  utility 
of  a  national  bank  outside  the  state  as  an 
instrumentality  of  the  Federal  government. 
Hawley  v.  Hurd,  72  Vt.  122,  47  Atl.  401, 

52:  195 
Plumbers. 

Due  Process  of  Law  as  to,  see  infra,  678. 
Police  Power  as  to,  see  infra,  1029,  1030. 

517.  The  permission  to  all  members  of  a 
firm  to  pursue  the  business  of  plumbing 
where  one  only  has  procured  a  license,  and 
to  all  members  of  a  corporation  to  pursue 
it  where  the  manager  only  has  procured  a 
license,  renders  Ohio  act  April  21,  1896,  for 
the  licensing  of  plumbers,  unconstitutional 


596 


CONSTITUTIONAL  LAW,  IT.  a,  5. 


on  the  ground  that  it  does  not  operate 
equally  upon  all  of  a  class  pursuing  the  call- 
ing under  like  circumstances.  State  v.  Gard- 
ner, 58  Ohio  St.  590.  51   N.  E.  136,         41:  689 

518.  Unfair  or  oppressive  action  of  the 
board  of  examiners  authorized  to  grant  the 
required  certificates  of  competency  to  mas- 
ter plumbers  will  not  render  unconstitu- 
tional a  statute  which,  as  framed,  provides 
for  an  impartial  board.  People  ex  rel. 
Nechamcus  v.  Warden  of  City  Prison,  144 
N.  Y.  529,  39  N.  E.  682,  27:  718 
Steam  engineers. 

519.  Exempting  from  the  provisions  of  an 
act  requiring  steam  engineers  to  be  exam- 
ined as  to  fitness  and  to  procure  a  license, 
all  persons  who  have  been  continuously  em- 
ployed as  steam  engineers  in  the  state  for 
a  period  of  three  years  next  prior  to  the 
passage  of  the  act,  and  all  those  who  hold 
licenses  issued  under  any  ordinance  of  a 
municipal  corporation,  renders  the  act  un- 
constitutional as  a  denial  of  the  equal  pro- 
tection of  the  laws  guaranteed  by  the  Ohio 
Bill  of  Rights,  §  2.  Harmon  v.  State  ex  rel. 
Gard,  66  Ohio  St.  249,  64  N.  E.   117, 

58:  618 
Pharmacists. 

520.  The  grant  to  registered  pharmacists 
by  Hurd's  (111.)  Rev.  Stat.  1897,  pp.  1075, 
1076,  of  the  right  to  sell  patent  and  pro- 
prietary medicines,  without  requiring  them 
to  make  any  inspection  or  examinatiqn  of 
the  same,  but  denying  such  right  of  sale 
to  all  other  persons,  firms,  or  corporations, 
is  the  grant  of  a  special  and  exclusive  privi- 
lege in  violation  of  111.  Const,  art.  4,  §  22. 
Xoel  V.  People,  187  111.  587,  58  N.  E.  616, 

52:  287 

521.  The  attempt  to  vest  an  arbitrary 
power  in  the  board  of  pharmacy  by  the  111- 
nois  pharmacy  act,  §  8  (Hurd's  Rev.  Stat. 
1897,  pp.  1075",  1076),  to  say  who  shall  and 
who  shall  not  sell  the  usual  domestic  and 
proprietary  remedies  in  villages  and  other 
localities,  and  just  exactly  what  they  are 
allowed  to  sell,  without  in  any  way  regu- 
lating or  controlling  the  discretion  thereby 
vested  in  the  board,  is  an  unjust  and  un- 
constitutional discrimination  between  per- 
sons coming  within  the  same  class.  Id. 
Fishing. 

Special    Legislation    as    to,    see    Statutes, 

381-383. 
See  also  supra,  369. 

522.  A  statute  as  to  fisheries,  making  dif- 
ferent regulations  for  certain  localities  or 
waters,  is  not  void  as  class  legislation,  in 
the  absence  of  a  constitutional  provision 
against  it.  Bittenhaus  v.  Johnston,  92  Wis. 
.V88,  66  N.  W.  805,  32:  380 

523.  The  exclusion  of  residents  of  the 
state  who  are  not  taxpayers,  but  who  are 
willing  to  pay  the  license  tax,  from  fishing 
in  the  public  waters  of  the  state  as  tax- 
payers are  allowetl  to  do  is  in  violation  of 
Tex.  Const,  art.  1,  §  3,  which  guarantees 
equal  rights,  and  prohibits  exclusive  sep- 
arate public  emolutnents  or  privileges,  ex- 
cept in  consideration  of  public  services, 
(iustafson  v.  State,  40  Tex.  Crim.  Rep.  67, 
48    S.    W.   518,  43:  615 


524.  A  statute  discriminating  between  dif- 
ferent kinds  of  fish  and  between  different 
localities  and  waters  in  regulating  fisheries 
does  not  deny  to  any  person  the  equal  pro- 
tection of  the  laws.  Bittenhaus  v.  Johnston, 
92  Wis.  588;  66  N.  W.  805,  32:  380 

525.  A  statute  forbidding  the  citizens  of 
any  other  county  from  fishing  in  the  waters 
of  two  specified  counties  without  a  license, 
without  anything  to  forbid  the  citizens  of 
those  counties  from  fishing  in  other  coun- 
ties without  a  license,  violates  the  constitu- 
tional guaranty  of  the  equal  protection  of 
the  laws.  State  v.  Higgins,  51  S.  C.  51,  28 
S.  E.  15,  38:  561 
Ferry. 

Special  Legislation  as  to,  see  Statutes,  366, 
368. 

526.  A  ferry  lease  granted  under  a  statute 
which  allows  to  all  who  choose  the  privi- 
lege of  bidding  therefor  is  not  within  the 
prohibition  of  the  organic  act  of  Dakota 
territory  as  to  "granting  private  charters 
or  especial  privileges,"  or  the  constitutional 
provision  against  "private  or  special  laws," 
authorizing  ferries.  Nixon  v.  Reid,  8  S.  D. 
507,  67  N.  W.  57,  32:315 

527.  A  statute  authorizing  exclusive  ferry 
franchises  to  be  granted  for  a  period  of 
years  by  county  commissioners  to  the  high- 
est bidder  is  not  repugnant  to  N.  D.  Const. 
§  20,  which  declares  that  no  privileges  or 
immunities  shall  be  granted  to  any  citizen 
or  class  of  citizens  which  shall  not  be  grant- 
ed to  all  citizens  on  the  same  terms.  Pat- 
terson V.  WoUmann,  5  N.  D.  608,  67  N.  W. 
1040,  33:  536 
Livery  stables. 

528.  The  discrimination  which  might  be 
made  against  persons  desiring  to  keep  a 
livery  stable  makes  void  an  ordinance  which 
requires  the  consent  of  half  the  owners  on 
a  block  in  order  to  permit  a  livery  stable 
thereon.  St.  Louis  v.  Russell,  116  Mo.  248, 
22  S.  W.  470,  20:  721 

529.  A  municipality  cannot  give  a  monop- 
oly of  the  business  of  keeping  livery  sta- 
bles within  the  business  portion  of  a  city, 
by  an  ordinance  which  prohibits  the  main- 
tenance therein  of  any  such  stables  that 
are  not  already  in  existence  and  under  op- 
eration. Crowley  v.  West,  52  La.  Ann.  526, 
27  So.  53,  47:  652 
Private  asylum. 

530.  The  business  of  maintaining  a  pri- 
vate asylum  for  the  treatment  of  mild  forms 
of  insanity,  inebriety,  and  other  nervous  and 
mental  diseases,  is  a  lawful  one  which  can- 
not be  prohibited,  either  directly  or  indi- 
rectly, by  unreasonable  and  oppressive  regu- 
lations. Ex  parte  Whitwell,  98  Cal.  73, 
32  Pac.  870,  19:  727 

6.  Sunday  Laws. 

Due  Process  of  Law  as  to,  see  infra,  683. 
Police  Power  as  to,  see  infra,  1017-1021. 
As  to  Sunday  Laws  Generally,  see  Sunday. 

531.  The  exemption  from  an  ordinance 
against  mercantile  business  on  Sunday,  of 
stores  for  drugs,  meats,  bread,  and  various 
other  things,  does  not  make  an  unreasona- 


CONSTITUTIONAL  LAW,  IL  a.  5. 


597 


ble  discrimination,  where  all  persons  en- 
gaged in  the  same  business  are  on  an  equal 
footing.  Theisen  v.  McDavid,  34  Fla,  440, 
16  So.  321,  26:  234 

532.  An  ordinance  prohibiting  the  sale  of 
clothing  on  tSunday,  when  it  singles  out 
that  class  of  merchants  and  certain  others 
without  any  substantial  reason  for  the  dis- 
crimination, leaving  other  merchants  ex- 
empt therefrom,  is  unconstitutional  as  spe- 
cial or  class  legislation.  Denver  v.  Bach,  26 
Colo.  530,. 58  Pac.  1089,  46:  848 

533.  A  statute  which  prohibits  the  keep- 
ing open  of  butcher  shops  for  the  sale  of 
meats,  and  other  business  places,  on  any 
portion  of  Sunday,  while  it  authorizes  con- 
fectionery and  tobacco  to  be  sold  in  an  or- 
derly manner  on  that  day,  is  fl«t  such  an 
unreasonable  discrimination  between  these 
several  occupations  as  to  make  the  law  in- 
valid as  special  or  class  legislation.  State 
ex  rel.  Hoffman  v.  Justus,  91  Minn.  447, 
98  N.  W.  325,  64:  510 
Barbers. 

Due  I'rocess  of  Law  as  to,  see  infra,  683. 
Keeping  Shop  Open  as  Work  of  Necessity, 

see  Sunday,  17-19. 
See  also  infra,  1018. 

534.  Forbidding  the  keeping  open  of  a 
barber  shop  on  Sunday,  while  permitting 
hotels,  boarding  houses,  baths,  restaurants, 
taverns,  livery  stables,  and  retail  drug 
stores  to  be  open,  is  not  unconstitutional  as 
depriving  barbers  of  the  equal  protection  of 
the  laws,  since  tne  classification  is  not  arbi- 
trary. State  V.  Sopher,  25  Utah,  318,  71 
Pac.  482,  60:  468 

535.  A  statute  permitting  barbers  in  two 
localities  of  the  state,  only,  to  pursue  their 
business  during  certain  hours  on  Sunday, 
does  not  deny  to  barbers  in  other  places  the 
equal  protection  of  the  laws,  since  it  affects 
all  within  the  same  localities  alike.  People 
V.  Havnor,  149  N,  Y.  195,  43  N.  E.  541, 

31:  689 
[Writ  of  Error  Dismissed  in  170  U.  S.  408, 
42  L.  ed.  1087,  18  Sup.  Ct.  Rep.  631.] 

536.  The  equal  privileges  or  immunities  of 
citizens  are  not  violated  by  prohibiting  the 
business  of  a  barber  on  Sunday  under  great- 
er penalties  than  those  imposed  upon  other 
business,  or  because  an  exception  is  made  as 
to  those  who  conscientiously  observe  the 
seventh  day  of  the  week  as  the  Sabbath, 
nor  is  such  a  statute  invalid  as  cla  is  legisla- 
tion. People  v.  Bellet,  99  Mich.  151,  57  N. 
W.   1094,  22:  696 

536a.  A  city  ordinance  making  it  unlaw lul 
for  barbers  to  pursue  their  calling  on  Sun- 
day, without  applying  to  other  kinds  of  em- 
ployment, is  unconstitutional  as  class  legis- 
lation. Tacoma  v.  Krech,  15  Wash.  296,  46 
Pbc.   255,  34:  68 

537.  A  statute  prohibiting  barbers  to 
carry  on  business  after  12  o'clock  on  Sunday 
or  on  a  legal  holiday,  and  applying  to  no 
other  class  of  labor,  is  unconstitutional  as 
special,  unjust,  and  unreasonable,  working 
an  invasion  of  individual  liberty,  since  it  is 
based  upon  no  distinction  to  justify  singling 
out  that  class  of  laborers.  Ex  parte 
Jentzsch,  112  Cal.  468,  44  Pac.  803,      32:  664 


Playing  ball. 

Playing  Ball  as  Sporting,  see  Sunday,  7. 

538.  The  constitutional  prohibition  against 
class  legislation  is  not  violated  by  a  statute 
prohibiting  the  plajnng  of  baseball  on  Sun- 
day where  a  fee  is  charged,  under  a  penalty 
of  a  fine  upon  the  players.  State  v.  Hogrie- 
ver,  152  Ind.  652,  53  N.  E.  921,  45:  504 

539.  Imposing  a  larger  penalty  on  persons 
who  play  baseball  on  Sunday  in  violation 
of  a  statute  than  upon  those  who  are  en- 
gaged in  hunting,  fishing,  rioting,  quarreling, 
and  in  acts  of  common  labor,  does  not  vio- 
late the  constitutional  right  of  citizens  to 
equal  privileges  and  immunities.  Id. 

c.  As  to  Employees. 

Due  Process  of  Law  as  to,  see  infra,  II.  b, 

4,  b,   (2). 
Police  Power  as  to,  see  infra,  II.  c.  4,  c. 
Special  Legislation  as  to,  see  Statutes^  312. 
See  also  supra,  31,  468;  infra,  685. 
For  Editorial  Notes,  see  infra.  III.  §  16. 

540.  A  statute  permitting  certain  uses  of 
a  dry  emery  Wheel  without  a  blower,  while 
requiring  a  blower  for  other  uses,  is  not 
class  legislation  as  between  operatives,  when 
the  rules  apply  to  all  persons  equally.  Peo- 
ple V.  Smith,  108  Mich.  527,  66  N.  W.  382, 

32:  853 

541.  A  statute  which  singles  out  owners 
and  proprietors  of  mines  and  manufacturers 
of  every  kind,  and  provides  that  they  shall 
bear  burdens  not  imposed  on  other  owners 
of  property  or  employers  of  labor,  and  pro- 
hibits them  from  making  contracts  which  it 
is  competent  for  other  owners  of  property 
or  employers  of  labor  to  make,  is  uncon- 
stitutional, and  cannot  be  sustained  as  an 
exercise  of  the  police  power.  State  v.  Good- 
will, 33  W.  Va.  179,  10  S.  E.  285,  6:  621 

542.  A  statute  establishing  free  employ- 
ment agencies  to  be  maintained  at  public 
expense,  which  forbids  those  in  charge  of 
them  to  furnish  help  to  persons  whose  em- 
ployees are  on  strike  or  locked  out,  or  to 
permit  them  to  have  access  to  the  names  of 
applicants  for  service,  while  expressly  en- 
titling other  employers  to  their  services,  is 
void  as  discriminating  between  two  classes 
of  employers,  and  depriving  applicants  of 
the  privilege  of  working  for  such  employers, 
and  as  interfering  with  the  freedom  of  con- 
tract. Mathews  v.  People,  202  111.  389,  67 
N.  E.  28,  63:  73 

543.  A  statute  prohibiting  persons  and 
corporations  engaged  in.  mining  and  manu- 
facturing, and  interested  in  selling  mer- 
chandise and  supplies,  from  selling  any  mer- 
chandise to  their  employees  at  a  greater  per 
cent  profit  than  they  sell  to  others  not  em- 
ployed by  them,  is  unconstitutional  and 
void  because  it  is  class  legislation  and  an 
unjust  interference  with  private  contract 
and  business.  State  v.  Fire  Creek  Coal  & 
C.  Co.  33  W.  Va.  188,  10  S.  E.  288,  6:  3J9 
Favoring  union  workmen. 

See  also  Contracts,  840. 

544.  An  unconstitutional  discrimination  in 
favor  of  union  workmen  is  made  in  violation 


598 


CONSTITUTIONAL  LAW,  II.  a,  5. 


of  111.  Const,  art.  4,  §  22,  prohibiting  the 
passage  of  any  local  or  special  law  granting 
to  any  corporation,  association,  or  individual 
any  special  or  exclusive  privilege,  immunity, 
or  franchise,  by  Kurd's  (111.)  Rev.  Stat. 
1899,  chap.  48.  §  32,  making  it  a  misde- 
meanor to  discharge  an  employee  because  of 
his  connection  with  any  lawful  labor  or- 
ganization. Gillespie  v.  People,  188  111.  176, 
58  N.  E.  1007,  52:  283 

545.  An  ordinance  giving  k  monopoly  to 
imion  labor  on  city  contracts  by  providing 
that  all  such  contracts  shall  contain  a  stipu- 
lation that  none  but  union  labor  will  be 
employed  is  void  as  making  an  unconstitu- 
tional discrimination  between  different 
classes  of  citizens,  and  because  it  lays  down 
a  rule  which  restricts  competition  and  in- 
creases the  cost  of  work.  Fiske  v.  People 
ex  rel.  Raymond.  188  111.  206,  58  N.  E.  985, 

52:  291 

546.  An  ordinance  providing  that  all  mu- 
nicipal printing  should  be  given  to  union 
printers  is  void  as  tending  to  encourage 
monopoly  and  defeat  competition,  though 
there  may  be  no  charter  requirement  for 
letting  such  contracts  to  the  lowest  bidders. 
Atlanta  v.  Stein,  111  Ga.  789.  36  S.  E.  932, 

51:  335 
Hours  of  labor. 

Due  Process  of  Law  as  to,  see  infra,  710-717. 
Police  Power  as  to,  see  infra,  1043-1050. 
See  also  supra,  316. 
For  Editorial  Notes,  see  infra,  III.  §§  7,  16. 

547.  The  exemption  of  existing  written 
contracts  from  the  operation  of  a  statute 
limiting  the  hours  of  labor  of  employees  of  a 
public-service  corporation  is  not  on  its  face 
so  arbitrary,  partial,  or  oppressive  as  to 
render  it  unconstitutional.  Re  Ten-Hour 
Law  for  Street  Rv.  Corps.  24  R.  L  603,  54 
Atl.   602,  61 :  612 

548.  An  exception  of  farm  and  domestic 
labor  from  a  statute  limiting  a  legal  day's 
work  to  eight  hours,  and  making  the  pay 
for  every  additional  hour  double  that  of  the 
hour  preceding,  is  unconstitutional  as  class 
legislation.  Low  v.  Rocs  Printing  Co.,  41 
Neb.  127,  59  N.  W.  3G2.  24:  702 

549.  An     act     providing     an     eight-hour 
day  for  all  workingmen  in  mines,  smelters, 
and  mills   for  the   reduction  of  ores  is   not 
unconstitutional   as   class   legislation,  or   as  j 
a  deprivation  of  property  without  due  proc-  ' 
ess  of  law,  or  an  abridgeiuont  of  the  privi-  j 
leges   or    immunities    of   citizens,   but    is    a  j 
legitimate  exercise  of  the  police  power  in  the  | 
interest  of  the  health  of  workingmen.     Re  | 
Boyce,  27  Xev.  299,  75  Pac.  1,  65:  47 

550.  The  equal   protection  of  the  laws  is 
not  denied  to  persons  within  the  scope  of  a 
statute    prohibiting    labor    in    underground 
mines   for  more  than   eight   hours   per  day.  | 
Holden  v.  Hardv,  14  T'tnh.  71,  46  Pac.  756."^    , 

.37 :  103  ' 
[Affirmed  by   the   Supreme  Court   of   the 
United   States"  in    169   V.   S.   366.  42  L.   ed. 
780,  18  Sup.  Ct.  Rep.  .3S.3.1 

551.  A    statute    prohibiting    the    employ-  . 
ment  of  females  in  any  factory  or  workshop 
for  more  than  eight  hours  a  day  is  uncon-  | 
stitutional  as  partial  and  discriminating  in 


its    character,    whether    applying    only    to 

manufacturers  of  wearing  apparel  and  like 

articles,  or  as  applying  to  manufacturers  of 

all  kinds  of  products.    Ritchie  v.  People,  155 

111.  98,  40  X.  E.  454,  29:  79 

Wages. 

Allowing  Attorneys'  Fees  in  Action  for,  see 

infra,  587,  588. 
Due  Process  of  Law  as  to,  see  infra,  718-735. 
Police  Power  as  to,  see  infra,  1038-1042. 
Title   of   Statute   as   to,   see   Statutes,   199, 

201. 
See  also  supra.  543,  infra,  721,  734. 
For  Editorial  Notes,  see  infra.  III.  §  16. 

552.  The  exception  of  religious,  literary, 
or  charitable  corporations  from  a  statute 
requiring  corporations  to  make  weekly  pay- 
ments of  wages,  does  not  create  any  in- 
vidious distinction  against  other  corpora- 
tions. State  V.  Brown  &  S.  Mfg.  Co.  18  R.  I. 
16,   25  Atl.   246,  17:  856 

553.  A  statute  regulating  the  payment  of 
coal-mine  employees  is  not  unconstitutional 
as  class  legislation  because  it  applies  only  to 
persons,  companies,  or  corporations  operat- 
ing a  coal  mine  in  Avhich  more  than  ten 
miners  are  employed.  [Case  affirmed  by 
equal  division.]  Peel  Splint  Coal  Co.  v. 
State,  36  W.  Va.  802,  15  S.  E.  1000,     17:  385 

554.  The  classification  of  mining  and  man- 
ufacturing enterprises  for  legislation  regii- 
lating  the  mode  of  payment  of  emploj'ees  is 
unreasonable,  arbitrary,  and  cannot  be  up- 
held. State  V.  Loomis,  115  Mo.  307,  22 
S.  W.   350,  21 :  789 

555.  A  statute  prohibiting  employees 
from  making  any  contracts  in  advance  to 
accept  anj-thing  else  than  lawful  money  of 
the  United  States  is  not  unconstitutional. 
Hancock  v.  Yaden,  121  Ind.  366,  23  N.  E. 
253,  6:  576 

556.  A  statute  requiring  weekly  payment 
of  wages  "by  every  manufacturing,  mining, 
quarrying,  lumbering,  mercantile,  street, 
electric,  and  elevated  railway,  steamboat, 
telegraph,  telephone,  and  municipal  corpora- 
tion, and  every  incorporated  express  com- 
pany and  water  company," — makes  an  un- 
constitutional discrimination  between  those 
corporations  and  others  which  are  organized 
for  pecimiarv  profit  and  employ  labor. 
Braceville  Coal  Co.  v.  People,  147  111.  66,  35 
N.  E.  62,  22:  340 

557.  No  special  privileges  are  conferred, 
nor  any  unjust  discrimination  made,  by  a 
statute  requiring  all  persons,  firms,  corpora- 
tions, etc.,  engaged  in  mining  or  manufac- 
turing, to  pay  their  employees  at  least  once 
every  two  weeks,  and  prohibiting  all  con- 
tracts by  such  emploj'ees  to  accept  any- 
thing but  lawful  money  of  the  United  States 
in  payment.  The  statute  operates  alike  up- 
on all  who  enter  the  classes  named,  and 
leaves  all  citizens  free  to  enter  them.  Han- 
cock V.  Yaden,  121  Ind.  366.  23  N.  E.  253, 

6:  576 

558.  The  restriction  on  the  freedom  of 
contract  of  laborers  employed  by  a  trust  or 
corporation  employing  ten  or  more  per- 
sons, imposed  by  Kan.  Laws  1897,  chap.  145, 
prohibiting  payment  otherwise  than  in  law- 
ful money  or  by  check  or  draft  on  a  deposit 


CONSTITUTIONAL  LAW,  IL  a,  5. 


599 


of  money,  is  in  violation  of  U.  S.  Const.  14th 
Amend.,  prohibiting  a  state  to  deprive  per- 
sons of  life,  liberty,  or  property  without 
due  process  of  law,  or  to  deny  any  person 
•  within  its  jurisdiction  the  equal  protection 
of  the  laws.  State  v.  Haun,  61  Kan.  146,  59 
Pac.  340,  47 :  369 

559.  A  statute  which  prohibits  persons  en- 
gaged in  mining  and  manufacturing  from  is- 
suing for  the  payni'^nt  of  labor  any  order  or 
paper  which  is  not  redeemable  within  thirty 
days  in  lawful  money,  with  interest,  is  un- 
constitutional and  void.  State  v.  Goodwill, 
33  W.  Va.  179,  10  S.  E.  285,  6:  621 

560.  An  act  requiring  the  redemption  in 
money  of  checks  issued  in  payment  of  as- 
signed wages,  which  is  applicajsle  only  to 
merchants  on  the  one  hand  and  Coal  miners 
on  the  other,  is  void  as  class  legislation. 
Dixon  V.  Poe,  159  Ind.  492,  65  N.  E.  518, 

60:  308 

561.  A  railroad  company  is  not  deprived 
of  the  equal  protection  of  the  laws  by  the 
Arkansas  act  of  March  25,  1889,  providing 
that  as  to  contracts  thereafter  made  such  a 
company  on  the  discharge  of  an  employee 
must  pay  all  wages  then  earned  at  the  con- 
tract rate  without  any  abatement  or  deduc- 
tion for  payment  before  the  time  agreed  up- 
on, and  that  in  default  thereof  the  wages 
shall  continue  at  the  same  rate  until  paid, 
but  not  more  than  sixty  days,  unless  an  ac- 
tion therefor  is  commenced  within  that  time. 
St.  Louis  L  M.  &  S.  R.  Co.  v.  Paul,  64  Ark. 
83,  40  S.  W,  705,  37 :  504 

562.  The  provision  of  Pa.  act  June  15, 
1897,  P.  L.  166,  regulating  the  employment 
of  foreign-born,  unnaturalized  male  persons, 
and  permitting  employers  to  deduct  from 
their  daily  wages  an  amount  levied  as  a  tax, 
violates  the  equal  protection  of  the  laws 
guaranteed  by  U.  S.  Const.  14th  Amend. 
Juniata  Limestone  Co.  v.  Faglev,  187  Pa. 
193,  40  Atl.  977,  '       42:  442 

563.  A  lien  for  wages  on  all  the  property 
of  a  corporation  in  preference  to  all  other 
liens,  except  duly  recorded  mortgages  and 
deeds  of  trust,  which  is  imposed  by  Cal. 
Laws  1897,  p.  231,  in  case  of  the  failure 
of  a  corporation  to  pay  its  employees 
monthly,  without  even  requiring  any  de- 
scription of  tne  property,  or  notice  in  any 
manner  in  order  to  make  the  lieu  valid;  and 
an  attorney's  fee  imposed  by  the  statute  in 
case  of  an  action  to  enforce  the  employee's 
right,  while  such  provisions  do  not  apply  to 
any  other  class  of  laborers, — constitute  an 
unconstitutional  discrimination  against  cor- 
porations and  their  employees.  Johnson  v. 
Goodyear  Min.  Co.  127  Cal.  4,  59  Pac.  304, 

47:  338 

564.  A  statute  making  it  a  crime  to  send 
any  chose  in  action  out  of  the  state  for  the 
purpose  of  suit  thereon  and  of  having  gar- 
nishment or  other  process  issued  against  the 
wages  of  a  resident  of  the  state,  and  served 
upon  any  person  indebted  to  him  for  wages 
who  is  subject  to  the  processes  of  the  courts 
of  the  state,  is  in  violation  of  the  piovisions 
of  U.  S.  Const.  14th  Amend.,  for  equal  pro- 
tection of  the  laws  and  the  equal  privileges 


and  immunities  of  citizens  of  the  United 
States,  and  also  of  a  provision  of  Mo.  Const, 
art.  2,  §  30,  against  granting  special  or  ex- 
clusive privileges  or  immunities,  since  the 
statute  discriminates  between  employees 
whose  employers  are  subject  to  the  processes 
of  the  courts  of  the  state,  and  others,  and 
also  discriminates  among  creditors  by  grant- 
ing greater  exemptions  of  wages  in  suits 
out  of  the  state  than  can  be  had  in  suits 
within  the  state,  while  it  denies  the  credit- 
or of  a  wage-earner  the  same  right  that 
other  creditors  have  to  bring  suits  in  other 
states,  and  permits  a  creditor  of  a  wage- 
earner  who  obtains  judgment  in  the  state  to 
enforce  it  out  of  the  state  by  processes  de- 
nied to  creditors  who  bring  suit  out  of  the 
state  in  the  first  instance.  Re  Flukes,  157 
Mo.  125,  57  S.  W.  545,  51:  176 

Discharge. 
See  also  supra,  544,  561. 

565.  A  statute  restricting  the  right  to  dis- 
charge laborers  because  of  membership  in 
labor  unions  is  within  a  constitutional  pro- 
vision against  special  laws.  State  v.  Julow, 
129  Mo.  163,  31  S.  W.  781,  29:  257 
Protection  of  street  railway  employees. 

566.  Confining  a  statute  for  the  protec- 
tion of  employees  to  street  cars  propelled  by 
cable,  steam,  or  electricity  does  not  make 
the  act  imconstitutional  as  an  attempt  at 
purely  arbitrary  classification.  State  v. 
Hoskins,  58  Minn.  25,  59  N.  W.  545,     25:  759 

567.  The  first  clause  of  the  14th  Amend- 
ment of  the  United  States  Constitution  is 
not  violated  by  a  statute  requiring  screens 
for  motormen  on  electric  cars,  but  not  ap- 
plying to  other  kinds  of  street  cars.  State 
V.  Nelson,  52  Ohio  St.  88,  39  N.  E.  22, 

26:  317 

568.  A  statute  requiring  screens  of  glass 
or  other  material  to  protect  motormen  on 
electric  cars  is  not  imconstitutional  because 
it  does  not  apply  to  cable  cars  or  other 
kinds  of  street  cars,  under  a  constitutional 
provision  that  laws  of  a  general  nature 
should  have  a  uniform  operation.  Id. 
Liability  for  negligent  injury. 

569.  The  exemption  of  municipal  corpora- 
tions from  a  statute  making  other  corpora- 
tions liable  to  a  servant  for  negligence  of  a 
fellow  servant  does  not  make  the  statute  in- 
valid. Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v. 
Montgomery,  152  Ind.  1,  49  N.  E.  582, 

69:  875 

570.  A  statute  making  employees  having 
charge  of  others  superior  servants,  not  only 
as  to  them,  but  as  to  subordinate  employees 
in  other  departments  of  the  service,  but  per- 
mitting the  doctrine  of  fellow  servants  to 
be  applied  as  between  superior  servants  gen- 
erally, is  based  on  a  reasonable  classification, 
and  does  not  deny  to  any  employee  the 
equal  protection  of  the  laws.  Kane  v.  Erie 
R.  Co.  67  C.  C.  A.  653,   133  Fed.  681, 

68:  788 

571.  A  constitutional  provision  requiring 
all  laws  of  a  general  nature  to  have  a  uni- 
form operation  throughout  the  state  is  not 
violated  by  Ohio  act  April  2,  1890,  relating 
to  the  liability  of  railroad  companies  for 
injuries  to  employees,  since  it  applies  to  all 


600 


CONSTITUTIONAL  LAW,  II.  a.  6. 


railroad  corporations  operating  railroads 
within  the  state,  and  to  all  of  a  common 
class  of  railroad  employees.  Peirce  v.  Van 
Dusen,  24  C.  C.  A.  280,  47  U.  S.  App.  339,  78 
Fed.  693,  69:  705 

572.  A  statute  rendering  all  corporations 
liable  for  injuries  to  employees  from  de- 
fective appliances,  whether  the  employees 
knew  of  the  defect  or  not,  cannot  be  saved 
from  unconstitutionality  because  of  discrim- 
ination in  favor  of  individual  employers  by 
the  courts  determining  in  each  particular 
case  whether  or  not  the  corporation  is  en- 
gaged in  a  business  so  liangerous  that  such 
a  rule  might  properly  be  applied  to  it. 
Ballard  v.  Mississippi  Cotton  Oil  Co.  81  Miss. 
507,  34  So.  533,  62:  407 

573.  Making  all  corporations  liable  for  in- 
juries to  employees  through  defective  ma- 
chinery, notwithstanding  the  employees  had 
knowledge  of  the  defect,  when  the  same  lia- 
bility is  not  placed  on  private  individuals, 
and  there  is  no  distinctive  difference  in  the 
business  which  will  warrant  the  classifica- 
tion, denies  the  corporations  the  equal  pro- 
tection of  the  laws.  Id. 

6.  Attorneys'  Fees;  Costs. 

Due  r^ocess  of  Law  as  to,  see  infra,  623, 

%4. 
Special  Legislation  as  to,  see  Statutes,  392, 

393. 
See  also  supra,  563. 
For  Editorial  Notes,  see  infra,  m.  §  7. 

Attorneys'  fees  against  railroad  company. 

574.  A  statute  providing  for  the  collection 
of  claims  against  railway  corporations  alone, 
and  authorizing  the  allowance  of  attorney's 
fees  in  such  cases,  will  not  be  set  aside  be- 
cause discriminatory  in  its  character,  nor 
because  it  is  opposed  to  the  principles  of  re- 
publican government.  Gulf,  C.  &  S.  F.  R. 
Co.  V.  Ellis  (Tex.)  18  S.  W.  723,  17:  286 

575.  The  provision  for  an  attorneys'  fee 
for  the  successful  prosecution  of  an  action 
under  Kan.  Laws  1893,  chap.  100,  for  failure 
of  a  carrier  to  safely  transport  and  deliver 
goods  committed  to  its  charge,  is  constitu- 
tional. Missouri,  K.  &  T.  R.  Co.  v.  Simon- 
son,  64  Kan.  802,  68  Pac.  653,  57:  765 

576.  Permitting  the  recovery  of  attorneys' 
fees  on  recovery  against  a  railroad  company 
for  violation  of  a  statute  regulating  rates 
does  not  violate  the  constitutional  provision 
as  to  equality.  Burlington,  C.  R.  &  N.  R. 
Co.  V.  Dey,  82  Iowa,  312,  48  N.  W.  98, 

12:  438 

577.  A  statute  authorizing  the  allowance 
of  an  attorney's  fee  to  plaintiff  on  recovery 
under  a  statute  making  a  railroad  company 
liable  for  injury  to  live  stock  because  of  a 
defective  railway  fence  is  not  unconstitu- 
tional as  special  legislation,  as  the  attorney's 
fee  may  be  lawfully  imposed  as  a  penalty 
for  violation  of  the  law.  Perkins  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.  103  Mo.  52,  15 
S.  W.  320,  11:  426 

578.  A  statute  allowing  reasonable  attor- 
neys' fees  in  an  action  to  recover  posses- 
sion of  land  taken  by  a  railroad  company. 


without  compensation,  for  its  right  of  way, 
is  not  unconstitutional  on  the  ground  of 
class  discrimination.  Cameron  v.  Chicago, 
M.  &  St.  P.  R,  Co.  63  Minn.  384,  65  N.  W. 
60ii,  •  31:553 

579.  That  the  duty  of  paying  attorneys' 
fees  to  the  landowner  in  eminent  domain 
proceedings  is  imposed  only  on  railroad 
companies  does  not  make  an  unconstitution- 
al discrimination  against  such  companies, 
since,  because  of  the  special  privileges 
granted  ti>  them,  they  form  a  special  class 
upon  which  peculiar  burdens  may  be  im- 
posed as  a  condition  of  exercising  the 
powers  granted.  Gano  v.  Minneapolis  &  St. 
L.  R.  Co.  114  Iowa,  713,  87  N.  W.  714, 

55:  263 

580.  Requiring  a  railroad  company  seek- 
ing to  condemn  a  right  of  way  to  pay  an 
attorney's  fee  to  the  landowner's  attorney 
in  case  of  his  successful  appeal  from  the 
award  of  the  sheriff's  jury  is  not  an  uncon- 
stitutional discrimination  against  the  com- 
pany, a  denial  to  it  of  the  equal  protection 
of  the  law,  or  the  conferring  of  an  illegal 
special  privilege  on  the  landowner.  Id. 
Against  insurance  company. 

Special  Legislation  as  to,  see  Statutes,  392. 

581.  An  act  authorizing  the  recovery  of 
attorneys'  fees  in  certain  cases  against  in- 
surance companies  is  constitutional.  Hart- 
ford F.  Ins.  Co.  V.  Redding,  47  Fla.  228, 
37  So.  62,  67:  518 

582.  The  provision  for  the  recovery  of  at- 
torneys' fees  in  certain  cases  against  fire 
and  life  insurance  companies,  made  by  Fla. 
act  approved  June  2,  1893,  chap.  4173,  p. 
101,  is  not  repugnant  to  any  provision  of 
the  state  or  Federal  Constitution.  L'Engle 
V.  Scottish  Union  &  N.  Ins.  Co,  48  Fla. 
82,  37  So.  462,  C7:  581 

583.  A  statute  making  an  insurance  com- 
pany liable  for  damages  and  attorneys'  fees 
in  case  of  failure  to  pay  a  loss  within  the 
timft  specified  in  the  policy  does  not  deny 
such  companies  the  equal  protection  of  the 
laws.  Union  C.  L.  Ins.  Co.  v.  Chowning,  86 
Tex.  654,  26  S.  W.  982,  24:  504 

584.  The  allowance  of  damages  and  at- 
torneys' fees  to  plaintiff  in  an  action  upon 
an  insurance  policy,  provided  for  by  Ga.  Civ. 
Code,  §  2140,  in  case  of  the  refusal  of  an  in- 
surance company  to  pay  a  loss  within  sixty 
days  after  demand  has  been  made,  where  it 
shall  appear  to  the  jury  that  the  refusal  to 
pay  was  in  bad  faith,  is  in  violation  of  (J.  S. 
Const.  14th  Amend.,  as  a  denial  of  the  gqual 
protection  of  the  laws.  Phcenix  L-8.  Co.  v. 
Schwartz,   115   Ga.    112,  41    S.   E.   J40, 

67:  752 
In  mechanics'  lien  case. 

585.  A  statutory  provision  allowing  attor- 
neys' fees  on  a  judgment  in  favor  of  the 
plaintiff  in  a  mechanic's  lien  case,  without 
making  any  such  allowance  to  a  successful 
defendant,  does  not  violate  the  constitution- 
al provision  for  equal  protection  of  the  laws. 
Dell  V.  Marvin,  41  Fla.  221,  26  So.  188, 

45:  201 

586.  The  provision  for  the  recovery  of  a 
reasonable  attorney's  fee,  to  be  fixed  by  the 
court  and  taxed  as  costs  in  the  action  when 


CONSTITUTIONAL  LA.W,  II.  a,  7. 


601 


judgment  is  rendered  for  plaintiff  in  any 
action  by  a  laborer  or  artisan  to  enforce  a 
lien  under  the  Kansas  mechanic's  lien  law, 
is  unconstitutional  and  void  as  a  denial  6f 
the  equal  protection  of  the  laws.  Atkinson 
V.  Woodmansee,  68  Kan.  71,  74  Pac.  640, 

64:  325 
In  action  for  wages. 

587.  A  penalty  for  the  benefit  of  an  indi- 
vidual is  not  imposed  by  a  provision  in  a 
statute  to  protect  wages  of  laborers,  giving 
a  right  to  the  recovery  of  the  debt,  costs, 
expenses,  and  an  attorney's  fee,  in  case  the 
act  is  violated.  Singer  Mfg.  Co.  v,  Fleming, 
39  Neb.  679,  58  N.  W.  226,  23:  210 

588.  The  provision  for  an  attorney's  fee  in 
an  action  for  wages,  made  by  Ohio  Rev. 
Stat.  §  6563a,  in  case  the  wagfi^  have  not 
been  paid  within  three  days  after  a  demand 
in  writing,  is  an  unconstitutional  denial  of 
the  equal  protection  of  the  laws,  since  the 
statute  imposes  the  restriction  upon  one 
class  of  citizens  only.  Hocking  Valley  Coal 
Co,  V.  Rosser,  53  Ohio  St.  12,  41  N.  E.  263, 

29:  386 
Costs. 
See  also  infra,  594. 

589.  A  statute  providing  that  the  state  or 
county  will  pay  costs  of  criminal  prosecu- 
tions only  in  certain  classes  of  cases  is  not 
partial  or  class  legislation.  State  v.  Hen- 
ley, 98  Tenn.  665,  41  S.  W.  352,  1104, 

39:  126 
690.  A  statute  denying  fees  and  costs  or 
mileage  to  witnesses  who  reside  within  5 
miles  of  the  place  at  which  attendance  is  re- 
quired while  allowing  them  in  other  cases, 
is  not  so  unreasonable  and  capricious  a 
classification  of  witnesses  as  to  make  the 
statute  partial  and  unconstitutional.       Id. 

7.  Matters  of  Practice. 

Due  Process  of  Law  as  to,  see  infra,  II.  b,  7. 

591.  A  statute  providing  for  a  short-cause 
calendar  on  which  plaintiff  may  have  a  cause 
placed  under  certain  circumstances,  but 
denying  the  sa.me  right  to  the  defendant, 
is  not  unconstitutional  as  being  unequal, 
partial,  or  special  legislation.  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Wallace,  136  111.  87, 
26  N.  E.  493,  11:  787 

592.  An  act  providing  for  service  of  sum- 
mons in  a  personal  action  against  a  natural 
person  who  is  a  citizen  of  another  state, 
but  carries  on  business  in  this  state,  on  his 
agent  in  charge  of  the  business,  without  a 
seizure  of  his  property  by  the  process  of  the 
court,  is  unconstitutional.  Cabanne  v.  Graf, 
87  Minn.  510,  92  N.  W.  461,  59:  735 

593.  The  equal  protection  of  the  laws  is 
not  denied  by  Or.  Sess.  Laws  1899,  p.  99, 
authorizing  prosecutions  to  be  commenced 
by  informations  filed  by  the  district  attor- 
ney except  when  the  court  deems  it  ad- 
visable to  convene  a  grand  jury,  thereby 
leaving  it  to  the  district  attorney  and  the 
court  to  determine  which  method  the  prose- 
cution should  follow.  State  v.  Tucker,  36 
Or.  291,  61  Pac.  894,  51:  246 


As  to  jury. 

Due  Process  of  Law  as  to,  see  infra,  805- 

810. 
See  also  supra,  320. 
For  Editorial  Notes,  see  infra,  III,  §  7. 

594.  The  requirement  that  a  party  de- 
manding a  struck  jury  shall  pay  the  fees 
for  striking  the  same  and  the  mileage  and 
per  diem  of  the  jurors,  without  any  allow- 
ance therefor  in  the  taxation  of  costs,  does 
not  constitute  class  legislation,  although 
some  litigants  may  not  be  financially  able  to 
avail  themselves  of  the  right.  Lommen  v. 
Minneapolis  Gaslight  Co.  65  Minn.  196,  68 
N.  W.  53,  33:  437 

595.  It  is  not  an  unconstitutional  discrim- 
ination against  persons  who  are  to  be  tried 
in  a  criminal  branch  of  the  court  to  require 
them  to  be  tried  by  jurors  taken  from  the 
body  of  the  county  whose  general  qualifi- 
cations have  been  more  particularly  ascer- 
tained by  a  special  jury  commissioner,  but 
who  are  still  subject  to  judicial  inquiry  as 
to  their  qualifications  and  impartiality  as  in 
the  case  of  an  ordinary  panel.  People  v. 
Dunn,  157  N.  Y.  528,  52  N.  E.  572,     43:  247 

596.  Jury  trial  by  a  jury  of  less  than 
twelve  under  state  laws,  in  a  state  court 
does  not  violate  U.  S.  Const.  14th  Amend. 
§  1,  making  all  persons  bom  or  naturalized 
in  the  United  States  and  subject  to  its  juris- 
diction citizens  of  the  United  States  and  of 
the  state  wherein  they  reside,  and  declaring 
that  no  state  shall  make  or  enforce  any  law 
abridging  the  privileges  or  immunities  of  the 
citizens  in  the  United  States.  State  v. 
Bates,  14  Utah,  293,  47  Pac.  78,  43:  33 

597.  Neither  due  process  of  law,  nor  the 
equal  protection  of  the  law,  is  denied  by  the 
granting  of  a  nonsuit,  instead  of  submitting 
the  case  to  the  jury,  where  the  facts  are 
practically  admitted.  Apex  Transportation 
Co.  V.  Garbade,  32  Or.  582,  52  Pac.  573,  54 
Pac.  367,  882,  62:  513 
Appeal. 

598.  A  statute  treating  all  owners  of  land 
in  territory  to  be  annexed  to  a  city  alike 
under  like  circumstances  and  conditions  does 
not  deprive  anyone  of  the  equal  protection 
of  the  laws,  although  it  permits  an  appeal 
only  by  residents  of  the  territory  to  be  an- 
nexed. Taggart  v.  Claypole,  145  Ind.  590, 
44  N.  E.   18,  32:  586 

599.  The  grant  of  the  right  of  appeal  in 
annexation  proceedings  to  resident  freehold- 
ers only  does  not  deny  to  nonresident  own- 
ers equal  privileges  or  immunities.  Id. 

600.  The  failure  to  provide  for  an  appeal 
from  the  decision  of  commissioners  placing 
a  valuation  upon  railroad  property  for  pur- 
poses of  taxation  will  not  render  a  revenue 
act  void  as  violating  the  constitutional  pro- 
vision securing  the  equal  protection  of  the 
laws,  although  the  right  to  appeal  in  such 
cases  is  accorded  to  the  owners  of  other 
property.  St.  Louis  I.  M.  &  S.  R.  Co.  v. 
Worthen,  52  Ark.  529,   13  S.   W.  254, 

7:374 

601.  A  statute  denying  the  right  of  appeal 
to  persons  convicted  of  certain  offenses  with- 
in the  territorial  jurisdiction  of  a  city  police 
court,   under   the    same   circumstances    and 


602 


CONSTITUTIONAL  LAW,  II.  a,  8. 


conditions  as  such  right  is  possessed  in 
other  portions  of  the  state  by  persons  con- 
victed of  similar  offenses,  does  not  violate 
U.  S.  Const.  14th  Amend.  §  1,  as  depriving 
citizens  of  that  city  of  the  equal  protection 
of  the  laws  guaranteed  to  all  citizens  of  the 
United  States,  where  the  act  operates  equal- 
ly on  all  persons  within  the  jurisdiction  to 
which  it  applies.  Sullivan  v.  Haug,  82 
Mich.  548,  46  N.  W.  795,  10:263 

8.  Criminal  Matters. 

As  to  Sunday  Laws,  see  supra,  II.  a,  5,  b. 
Due  Process  as  to,  see  infra,  II.  b,  8. 
Police  Power  as  to,  see  infra,  II.  c,  5. 
As   to   Costs   in   Criminal   Prosecution,    see 

supra,  589-590. 
Special  Legislation  as  to,  see  Statutes,  299. 
See  also  supra,  564,  593,  595,  601;  infra,  704, 

825. 
For  Editorial  Notes,  see  infra,  III.  §  7. 

602.  A  statute  which  makes  it  a  misde- 
meanor for  persons  in  one  branch  of  indus- 
try to  do  what  is  lawful  for  those  in  an- 
other branch  of  industry,  in  like  relation  and 
under  like  conditions,  is  unconstitutional. 
Frorer  v.  People,  141  111.  171,  31  N.  E.  395, 

16:  492 

603.  The  Michigan  Constitution  contains 
no  provision  that  all  laws  shall  be  equal  and 
uniform  throughout  the  state,  and  conse- 
quently the  legislature  is  not  prohibited 
from  legislating  for  particular  localities; 
and  it  has  power  to  declare  that  certain  acts 
committed  in  a  particular  locality  may  be 
punished  as  a  crime,  while  if  committed  in 
other  localities  they  are  not  punishable. 
People  V.  Hanrahan,  75  Mich.  611,  42  N.  W. 
1124,  4:  751 

604.  Exemption  ©f  minors  and  persons  un- 
der guardianship  from  the  penalty  imposed 
by  a  statute  foi;'  refusal  to  be  vaccinated 
does  not  render  the  statute  unconstitutional 
as  working  an  inequality.  Com.  v.  Pear,  183 
Mass.  242,  66  N.  E.  719,  67:935 

605.  A  statute  exempting  police  officers 
from  the  presumption  that  possession  of 
papers  used  in  playing  policy  was  with 
knowledge  and  in  violation  of  law  is  not 
unconstitutional  as  class  legislation  upon 
the  ground  that  officers  whose  duty  did  not 
require  possession  of  such  papers  might 
thereby  be  exempted  from  the  operation  of 
the  statute,  since  the  statute  will  be  con- 
strued to  further  its  objects.  People  v. 
Adams.  176  N.  Y.  351,  68  N.  E.  636,  63:  406 

606.  The  constitutional  guaranty  of  the 
equal  protection  of  the  laws  is  not  violated 
by  a  statute  which  makes  it  unlawful  to 
make  options  for  the  sale  of  certain  com- 
modities, but  not  of  other  commodities, 
where  it  applies  to  all  commodities  which 
have  been,  up  to  that  time,  made  the  sub- 
iect  of  gambling  operations.  Booth  v.  Peo- 
ple, 186  111.  43,  57  X.  E.  798.  50:  762 
Smoke. 

607.  Doubt  as  to  the  existence  ol  devices 
to  prevent  the  emission  into  the  air  of  dense 
smoke,  as  indicated  by  a  proviso  in  a 
statute   making   such   emission   a   penal   of- 


fense which  exempts  from  punishment  per- 
sons who  can  show  that  no  such  device  ex- 
ists, is  not  sufficient  to  render  the  act  un- 
constitutional. State  V.  Tower,  185  Mo.  79, 
84  S.  W.  10,  68:  402 

608.  An  exception  in  favor  of  those  who 
can  show  that  no  practicable  device  exists 
which  will  prevent  the  nuisance  when  ap- 
plied to  their  buildings  does  not  render  un- 
constitutional, as  obnoxious  class  legisla- 
tion, a  statute  making  the  emission  of  dense 
smoke  into  the  air  a  penal  offense.  Id. 
Tramps. 

Due  Process  of  Law  as  to,  see  infra,  931. 

609.  The  tramp  law  of  Ohio  (Rev.  Stat. 
§  6995),  prescribing  punishment  for  tramps 
who  threaten  to  do  injury  to  the  person  of 
another  while  they  are  out  of  the  county 
of  their  residence,  does  not  violate  Ohio 
Const,  art.  2,  §  26,  requiring  uniform  opera- 
tion of  laws,  merely  because  the  law  does 
not  apply  to  females  and  blind  persons,  or 
because  it  does  not  apply  to  persons  who 
make  such  threats  in  the  counties  where 
they  reside.  State  v.  Hogan,  63  Ohio  St. 
202,  58  N.  E.  572,  52:  863 
Pool  selling. 

Special  Legislation  as  to,  see  Statutes,  300, 
301. 

610.  A  statute  prohibiting  bookmaking  or 
pool  selling  at  all  places  except  upon 
grounds  where  the  races  are  to  be  run,  and 
by  all  except  licensed  persons,  is  not  an  un- 
constitutional special  law  on  the  ground 
that  it  grants  special  and  exclusive  rights 
and  immunities.  State  v.  Thompson,  160 
Mo.  333,  60  S.  W.  1077,  54:  950 

611.  One  engaged  in  selling  pools  or  mak- 
ing books  on  events  to  occur  beyond  the  lim- 
its of  the  state  is  not  deprived  of  the  equal 
protection  of  the  laws  by  a  statute  which 
prohibits  making  books  or  selling  pools  on 
such  events,  but  does  not  prohibit  it  on 
events  within  the  state.  Such  act  is  uni- 
form in  its  operation  upon  all  coming  with- 
in its  provisions;  all  are  alike  prohibited 
from  engaging  in  one  class  of  transactions 
and  have  equal  rights  as  to  the  other  class. 
State  V.  Burgdoerfer,  107  Mo.  1,  17  S.  W. 
646,  14:  846 
Associating  with  prostitutes. 

Due  Process  of  Law  as  to,  see  infra,  933. 

612.  An  ordinance  making  it  unlawful  for 
any  person  to  associate,  escort,  converse,  or 
loiter  with  any  female  known  as  a  common 
prostitute,  either  by  day  or  by  night,  upon 
any  of  the  streets  or  alleys  of  the  city, 
except  her  husband,  father,  brother,  or 
other  male  relative,  is  invalid,  as  there  can 
be  no  good  reason  in  exempting  ajiy  other 
male  relative  than  the  husband,  father,  or 
brother  from  its  provisions,  or  for  failing 
to  give  her  mother  and  sister  the  same 
privilege  allowed  to  the  father  or  brother, 
while  any  person  should  be  allowed  to  con- 
verse with  her  long  enough  to  transact  any 
necessary  and  legitimate  business.  Hech- 
inger  v.' Mavsville.  22  Kv.  L.  Rep.  486,  58 
S.  W.  619,  ■  49:  114 
Effect  of  good  character. 

613.  A  statute  allowing  persons  proved 
to  be  of  good  character  to  show  reasonable 


CONSTITUTIONAL  LAW.  II.  b,  1. 


603 


fear  of  danger  as  a  justification  for  carry- 
ing concealed  weapons  whicli  the  law  pro- 
hibits carrying  is  not  in  conflict  with  con- 
stitutional provisions  as  to  equal  privileges 
and  immunities  of  citizens,  as  discriminat- 
ing against  those  who  are  not  of  good 
character.  State  v.  Workman,  35  W.  Va. 
367,   14  S.  E.  9,  14:  600 

b.  Due  Process  of  Law  or  Law  of  the 
Land;  Guaranty  of  Right  to  Life,  Liberty, 
and  Property. 

1.  In  GeneraL 

Requiring    Automobile    to    Carry    Number, 

see  Automobiles,  2. 
Limiting  Height   of   Fence,   see  tlences,   28. 
Effect   of  Expert  Testimony  as  to  Danger 

from  Vaccination,  see  Health,  27. 
Validity    of    Curfew    Law,    see    Municipal 

Corporations,  269. 
See  also  supra,  75;    infra,  939-945,  1000. 
For  Editorial  Notes,  see  infra.  Hi.  §  8. 

614.  The  meaning  of  the  phrase  "due 
process  of  law"  is  not  strictly  limited  to 
judicial  process  or  proceedings.  aLovell  v. 
Seeback,   45   Minn.  465,  48  N.   W.   23, 

11:  667 

615.  What  was  due  process  of  law  before 
the  adoption  of  the  Federal  Constitution 
continues  such.  State  v.  Sponaugle,  45  W. 
Va.  415,  32  S.  E.  283.  43:  727 

616.  The  law  of  the  land,  within  the 
meaning  of  a  constitutional  restriction  up- 
on interference  witli  private  rights,  means 
the  common  law  and  the  previously  exist- 
ing statute  law.  Mauldin  v.  Greenville,  42 
S.  C.  293,  20  S.  E.   842,  27:  284 

617.  Due  process  of  law  is  denied  when 
any  particular  person  of  a  class  or  of  a 
community  is  singled  out  for  the  imposi- 
tion of  restraints  or  burdens  not  imposed 
upon,  or  to  be  borne  by,  all  of  the  class 
or  of  the  community  at  large,  unless  the  im- 
position or  restraint  be  based  upon  existing 
distinctions  that  differentiate  the  particu- 
lar individuals  of  the  class  to  be  affected 
from  the  body  of  the  community.  State 
ex  rel.  Wyatt  v.  Ashbrook,  154  Mo.  375, 
55  S.  W.  627,  48:  265 

618.  Personal  liberty  includes  not  only 
freedom  from  physical  restraint,  but  also 
the  right  "to  be  let  alone;"  to  determine 
one's  mode  of  life, — whether  it  shall  be  a 
life  of  publicity  or  of  privacy;  and  to  order 
one's  life  and  manage  one's  affairs  in  a 
manner  that  may  be  most  agreeable  to 
him,  so  long  as  he  does  not  violate  the 
rights  of  others  or  of  the  public.  Pavesich 
v.  New  England  L.  Ins.  Co.  122  Ga.  190,  50 
S.  E.  68,  69:  101 

619.  Personal  security  includes  the  right 
to  exist,  and  the  right  to  the  enjoyment  of 
life  while  existing,  and  is  invaded  not  only 
by  a  depriv-ation  of  life,  but  also  by  a  dep- 
rivation of  those  things  which  are  neces- 
saiy  to  the  enjoyment  of  life  according  to 
the  nature,  temperament,  and  lawful  de- 
sires of  the  individiial.  Id. 

620.  Every    man's    liberty    and    property 


are  to  some  extent  subject  to  the  general 
welfare,  as  each  person's  interest  is  pre- 
sumed to  be  promoted  by  that  which  pro- 
motes the  interest  of  all.  People  v.  Hav- 
nor,  149  N.  Y.  195,  43  N.  E.  541,  31:  689 
[Writ  of  Error  Dismissed  in  170  U.  S.  408, 
42  L.  ed.  1087,  18  Sup.  Ct.  Rep.  631.] 

621.  A  statute  does  not  deprive  a  citizen 
of  his  liberty  or  property  in  the  constitu- 
tional sense  simply  because  it  imposes  bur- 
dens, or  abridges  freedom  of  action,  or 
regulates  occupations,  or  subjects  individ- 
uals or  property  to  restraints  in  matters 
indifferent  except  as  they  affect  public  in- 
terests or  the  rights  of  others.  People  v. 
Budd,  117  N.  Y.  1,  22  N.  E.  670,        5:  559 

622.  The  liberty  guaranteed  by  the  Con- 
stitution includes  the  right  of  a  citizen  to 
use  his  God-given  powers,  employ  his  facul- 
ties, exercise  his  judgment  in  the  affairs  of 
life,  and  be  free  in  the  enjoyment  and  dis- 
posal of  his  acquisitions,  subject,  only,  to 
such  restrictions  as  are  imposed  by  the  law 
of  the  land  for  the  public  welfare.  Block 
v.  Schwartz,  27  Utah,  387,  76  Pac.  22, 

65:  308 
As  to  attorneys'  fees. 

Equal  Protection  and  Privileges,  as  to,  see 
supra,  II.  a,  6. 

623.  A  railway  corporation  is*  not  de- 
prived of  its  property  without  due  course  of 
law  by  a  statute  authorizing  the  incorpora- 
tion into  the  judgment  against  it  of  a 
reasonable  attorney's  fee,  in  case  an  at- 
torney is  actually  employed  to  collect  a 
claim  against  it  which  was  duly  presented 
to  its  proper  agent  and  remained  unpaid 
for  thirty  days.  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Ellis   (Tex.)   18  S.  W.  723,  17:286 

624.  A  statutory  duty  of  a  railway  com- 
pany to  fence  its  tracks  may  be  enforced 
by  a  penalty  in  the  form  of  an  attorney's 
fee  to  be  allowed  in  suits  brought  to  re- 
cover the  value  of  stock  killed  because  of 
the  neglect  of  such  duty.  Id. 
As  to  penalty. 

625.  "Due  process  of  law"  with  respect  to 
the  imposition  of  legal  penalties  requires 
that  the  legislative  body  should  prescribe 
the  amount  of  the  penalty,  or  some  definite 
standard  for  fixing  the  amount,  or  else  that 
the  amount  should  be  determined  in  a  ju- 
dicial proceeding  instituted  against  the  of- 
fender. Cigar  Makers'  International  Un- 
ion V.  Goldberg  (N.  J.  Err.  &  App.)  72 
N.  J.  L.  214,  61  AtL  457,  70:  156 

626.  Giving  a  prosecuting  attorney  an 
interest  in  a  penalty  does  not  prevent 
due  process  of  law.  State  v.  Indiana  & 
I.  S.  R.  Co.  133  Ind.  69,  32  N.  E.  817, 

18:  502 
Quarantining  vessel. 

627.  The  constitutional  provision  for  due 
process  of  law  is  not  violated  by  the  exer- 
cise of  the  police  power  to  quarantine  ves- 
sels at  an  infected  port.  Compagnie  Fran- 
caise  v.  State  Board  of  Health,  51  La.  Ann. 
645,  25  So.  591,  56:  795 
Compulsory  service. 

628.  Ordinary  services  such  as  may  be 
be  required  of  all  citizens  or  officials  by 
general  or  valid  special  laws  are  not  par- 


604 


CONSTITUTIONAL  LAW.  II.  b,  2. 


ticular  services  within  the  provision  of 
Tenn'.  Const,  art.  1,  §  21,  providing  that  no 
man's  particular  services  shall  be  demanded 
without  the  consent  of  his  representatives 
or  just  compensation.  State  v.  Henlev,  98 
Tenn.  665,  41  S.  W.  352,  1104,  39:  126 

Vaccination   of   pupils. 
Police  Power  as  to,  see  infra,  1010-4012. 
See  also  infra,  1012. 

629.  A  statute  authorizing  school  authori- 
ties to  make  vaccination  a  condition  of  the 
privilege  of  attending  public  schools  is  es- 
sentially a  police  regulation,  and  does  not 
violate  the  constitutional  guaranties  of  due 
process  of  law  or  equal  protection  of  the 
law.  Bissell  v.  Davison,  65  Conn.  183,  32 
Atl.  348,  29:  251 

2.  As  to  Property  Rights  Generally. 

o.  In  General. 

As  to  Confiscation  of  Property,  see  Confis- 
cation. 

See  also  supra,  412,  413,  491;  infra,  794,  796, 
940-943,  988,  1004. 

For  Editorial  Notes,  see  infra.  III.  §  14. 

630.  Copipelling  expense  to  improve  prop- 
erty by  the  exercise  of  police  power  does 
not  deprive  the  owner  of  his  property  with- 
out due  process  of  law,  if  the  exaction  is 
not  unreasonable  either  with  reference  to 
the  nature  or  cost.  New  York  Health 
Dept.  V.  Trinity  Church,  145  N.  Y.  32,  39 
N.  E.  833,  27:710 

631.  The  transfer  of  money  from  one 
fund  of  a  city  to  another  to  pay  a  debt 
does  not  deprive  the  city  of  its  property 
within  the  constitutional  provision  as  to 
due  process  of  law.  Davock  v.  Moore,  105 
Mich.   120,  63  N.  W.  424,  28:  783 

632.  A  landowner  is  not  deprived  of  his 
property  without  due  process  of  law  by  a 
statute  which  provides  that,  after  the  title 
has  been  judicially  determined  and  regis 
t<ied,  tlie  tenure  of  the  owner,  the  right 
of  transfer  and  encumbrance,  and  all  rights 
subsequently  accruing  shall  be  determined 
in  accordance  with  the  rules  prescribed  by 
that  statute.  People  ex  rel.  Deneen  v.  Si- 
mon, 176  111.  165,  52  N.  E.  910,  44:  801 

632a.  A  statute  authorizing  the  destruc- 
tion of  a  privy  vault  which  has  been  or- 
dered by  municipal  authorities  to  be  de- 
stroyed notwithstanding  an  appeal  from 
the  order  is  not  unconstitutional.  Harring- 
ton V.   Providence,  20  R.  I.  233,  38  Atl.   1, 

38:  305 
What  is  property. 
Dog  as,  see  Animals,  8. 
Railroad  Ticket  as,  see  Carriers,  577. 
See  also  infra,  856. 

633.  A  person's  business,  occupation,  or 
calling  is,  aside  from  the  chattels  or  money 
employed  therein,  property,  within  the 
meaning  of  the  Constitution  guaranteeing 
to  every  citizen  a  certain  remedy  in  the 
law  for  any  injury  he  may  receive  in  his 
person,  property,  or  character.  Gray  v. 
Building  Trades  Council,  91  Minn.  171,  97 
N.   W.   663,  63:  753 


634.  The  next  of  kin  of  a  person  are  not 
deprived  of  any  "property"  by  a  statute 
which  provides  that  on  the  death  of  the 
person  the  personal  property  shall  go  to 
ither  persons;  and  therefore  the  constitu- 
tional provision  as  to  depriving  persons  of 
"property"  does  not  apply  to  the  statute 
so  far  as  it  relates  to  them.  Dibrell  v. 
Lanier,  89  Tenn.  497,  15  S.  W.  87,       12:  70 

635.  The  property  of  a  private  eleemosy- 
nary corporation,  although  charged  with 
the  maintenance  of  a  college  or  other  "pub- 
lic charity,"  is  private  property,  within 
the  meaning  and  protection  of  that  clause 
of  Ohio  Const,  art.  1,  §  19,  which  declares 
that  "private  property  shall  ever  be  held 
inviolate."  State  ex  rel.  ^Tiite  v.  Neff,  52 
Ohio  St.  375,  40  N.  E.  720,  28:  409 

636.  A  public  office,  or  the  prospective 
fees  of  an  oflace,  are  not  the  property  of 
the  incumbent  within  the  constitutional 
provision  against  depriving  a  man  of  prop- 
erty. People  ex  rel.  Akin  v.  Kipley,  171 
111.  44,  49  N.  E.  229.  41 :  775 

636a.  A  public  office  is  not  property, 
within  the  meaning  of  the  constitutional 
provision  that  "no  person  shall  be  deprived 
of  life,  liberty,  or  property  without  due 
process  of  law  and  the  judgment  of  his 
peers."  It  is  a  mere  public  agency,  re- 
vocable according  to  the  will  and  appoint- 
ment of  the  people,  as  expressed  in  the  Con- 
stitution and  the  laws  enacted  in  conform- 
ity therewith.  Moore  v.  Strickling,  46  W. 
V^a.  515,  33  S.  E.  274,  50:  279 

637.  A  public  office  is  not  property  with- 
in the  provision  of  the  Federal  Constitution 
against  deprivation  of  property  without 
due  process  of  law,  and  therefore  that  pro- 
vision is  not  violated  by  a  clause  in  a  state 
constitution  giving  the  governor  power  to 
remove  officers  for  gross  neglect  or  mis- 
feasance. Atty.  Gen.  ex  rel.  Rich  v.  Jochim, 
99  Mich.  358,  58  N.  W.  611,  23:  699 
Corporation  as  person. 

For  Editorial  Notes,  see  infra,  ITT.  §  8. 

638.  A  corporation  is  a  "person"  within 
the  meaning  of  the  provision  against  tak- 
ing property  without  due  process  of  law; 
and  it  is  a  "man"  within  the  provision 
against  taking  property  otherwise  than  by 
"the  law  of  the  land."  Knoxville  &  O.  R. 
Co.  V.  Harris,  99  Tenn.  684,  43  S.  W.   115, 

53:  921 

639.  A  foreign  corporation  is  a  person 
within  the  meaning  of  U.  S.  Const.  14th 
Amend,  and  other  constitutional  clauses, 
and  is  therefore  protected  against  the  dis- 
charge of  its  debtor  by  state  insolvency 
proceedings.  Hammond  Beef  &  P.  Co.  v. 
Best,  91  Me.  431,  40  Atl.  338,  42:  528 
Dissolution  of  corporation. 

640.  N.  Y.  Laws  1886,  chap.  271,  attempt- 
ing to  take  away  from  a  street  railroad 
company  which  is  dissolved  by  legislative 
action,  the  franchise  which  has  been  grant- 
ed to  it  in  perpetuity  to  construct  and 
maintain  a  street  railroad  in  a  certain 
street,  and  to  direct  the  sale  and  transfer 
of  such  franchise,  and  the  payment  of  the 
purchase  price  to  the  city,  is  unconstitu- 
tional as  an  effort  to  change  the  ownership 


CONSTITUTIONAL  LAW,  II.  b,  2. 


605 


r 


of  the  franchise  without  due  process  of 
law.  People  v.  O'Brien,  111  N.  Y,  1,  18  N. 
E.   692,  2:  255 

641.  The  appointment  of  a  receiver  of 
property  of  a  dissolved  corporation,  and 
the  transfer  of  its  assets  to  him  by  force 
of  a  statute,  after  the  title  to  the  prop- 
erty had  become  vested  by  dissolution  of 
the  corporation,  in  its  directors  as  trustees 
for  the  stockholders  and  creditors,  in  an 
action  to  which  such  directors  were  not 
parties,  is  a  violation  of  the  constitutional 
provisions  in  relation  to  the  taking  of 
property  without  due  process  of  law.  Id. 
Extension  of  city. 

For  Editorial  Notes,  see  infra,  III.  §  8. 

642.  Changing  the  status  of  a  tract  of 
land  from  a  farm  to  city  lots,  by  tjje  exer- 
cise of  a  power  granted  cities  to  extend 
their  limits,  is  not  a  deprivation  of  prop- 
erty without  due  process  of  law.  Callen 
V.  Junction  City,  43  Kan.  627,  23  Pac.  652, 

7:  736 

643.  The  annexation  of  territory  to  a  city 
is  not  a  taking  of  the  property  therein 
situated,  nor  does  it  deprive  any  person  of 
property  within  the  constitutional  provi- 
sion as  to  due  process.  Taggart  v.  Clay- 
pole,  145  iQd.  590,  44  N.  E.  18,  32:  586 
Destroying  riparian  rights. 

644.  The  state  cannot  take  away  or  de- 
stroy the  rights  of  a  riparian  owner  with- 
out his  consent  and  without  compensation 
and  without  due  process  of  law,  for  the 
sole  purpose  of  benefiting  some  other  ri- 
parian owner,  or  for  any  other  mere  private 
purpose.  Priewe  v.  Wisconsin  State  Land 
&  I.  Co.  93  Wis.  534,  67  N.  W.  918,  33:  645 
Administration  of  living  person's  estate. 

645.  A  statute  authorizing  administra- 
tion upon  the  estate  of  a  person  who  has 
left  home  and  not  been  heard  from  for 
seven  years  is  unconstitutional,  since  the 
administration  upon  the  estate  of  a  living 
person  deprives  him  of  property  contrary 
to  the  law  of  the  land  or  without  due 
process  of  law.  Carr  v.  Brown,  20  R.  I.  215, 
38  Atl.  9,  38:  294 

646.  A  statute  providing  for  the  appoint- 
ment of  a  special  administrator  in  cases 
where  "the  death  of  tne  person  whose  es- 
tate is  in  question  is  not  satisfactorily 
proved,  but  he  is  shown  to  have  disap- 
peared under  circumstances  which  afford 
reasonable  grounds  to  believe,  either  that 
he  is  dead,  or  has  been  secreted,  confined,  or 
otherwise  unlawfully  done  away  with,"  is 
invalid  afe  depriving  the  person  of  his  prop- 
erty and  its  possession  without  notice  or 
due  process  of  law,  when  applied  to  the 
property  of  a  person  living,  although  such 
special  administrator  has  no  power  to  ad- 
minister such  estate  generally.  Clapp  v. 
Houg,  12  N.  D.  600,  98  N.  W.  710,  65:  757 
Fixing  limits  of  houses  of  prostitution. 

647.  An  ordinance  changing  the  limits 
outside  of  which  houses  of  prostitution  are 
prohibited  does  not  unconstitutionally  de- 
prive a  citizen  of  his  property  because  it  is 
depreciated  in  value  in  consequence  of  be- 
ing included  within  such  limits,  as  the  or- 


dinance is  an  exercise  of  the  police  power. 
L'Hote  v.  New  Orleans,  51  La.  Ann,  93,  24 
So.   608,  44:  90 

Effect  of  judgment. 

648.  A  statute  denying  effect  to  a  judg- 
ment against  the  validity  of  a  title  pur- 
chased at  execution  sale,  unless  plaintiff 
reimburses  the  purchaser,  on  failure  of 
which  the  latter's  title  shall  be  valid,  is 
unconstitutional  as  depriving  the  debtor  of 
his  property  without  due  process  of  law. 
Oilman  v.  Tucker,  128  N.  Y.  190,  28  N.  E. 
1040,  13:  304 

649.  A  statute  reducing  the  power  of  a 
city  to  levy  taxes  to  pay  a  judgment  does 
not  deprive  the  owner  of  the  judgment  of 
his  property  therein  without  due  process  of 
law.  Sherman  v.  Langham,  92  Tex.  13,  40 
S.  W.  140,  42  S.  W.  961,  39:  258 
Of  persons  unborn.   . 

650.  Persons  yet  unascertained  and  un- 
born are  not  deprived  of  their  rights  with- 
out due  process  of  law  by  making  them 
defendants  in  a  bill  to  remove  a  cloud 
upon  title,  and  having  them  represented 
by  a  guardian  ad  litem  as  provided  by 
Mass.  Stat.  1897,  chap.  522.  Loring  v.  Hil- 
dreth,  170  Mass.  328,  49  N.  E.  652,  40:  127 
Compulsory  testimony. 

651.  The  property  of  an  expert  witness 
is  not  taken  withoiit  just  compensation,  by 
requiring  him  to  give  his  opinion  as  an  ex- 
pert without  other  compensation  than  ordi- 
nary fees.  Dixon  v.  People,  168  111.  179, 
48  N.  E.  108,  39:  116 

6.  Eminent    Domain. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  354-357. 

As  to  Notice  and  Hearing  in,  see  infra,  870. 

As  to  Measure  of  Damages  in  Eminent  Do- 
main, see  Damages,  III.  1. 

Requiring  Persons  to  Become  Members  of 
Drainage  District,  see  Drainage  Dis- 
tricts,  2. 

See  also  supra,  643,  644,  651,  infra,  669,  970. 

652.  Compensation  for  private  property 
taken  for  public  uses  constitutes  an  essen- 
tial element  in  "due  process  of  law;"  and 
without  such  compensation  the  appropria- 
tion of  private  property  to  public  uses,  no 
matter  under  what  form  of  procedure  it  is 
taken,  will  violate  provisions  of  the  14th 
Amendment  of  the  Constitution  of  the 
United  States.     Scott  v.  Toledo,  36  Fed.  385, 

1 :  088 

653.  The  right  to  take  ice  from  public 
waters  being  vested  in  the  people  of  the 
state.  Wis.  Laws  1901,  chap.  470,  which  re- 
quires as  a  condition  to  the  enjoyment  of 
such  right  the  procurement  of  a  license  and 
the  payment  of  a  sum  of  money  therefor, 
is  void  as  a  violation  of  U.  S.  Const.  14th 
Amend,  prohibiting  the  taking  of  property 
without  due  process  of  law,  and  of  Wis. 
Const,  art.  1,  §  13,  forbidding  the  taking  of 
private  property  for  public  use  without 
compensation.  Rossmiller  v.  State,  114  Wis. 
169,  89  N.  W.  839,  58:  93 

654.  The   drainage    of    agricultural    lands 


CONSTITU'l  lONAL  LAW,  II.  b,  3. 


by  "necessary  drains,  ditches,  and  dykes 
upon  the  lands  of  others,  under  proper  re- 
strictions and  upon  just  compensation,"  for 
which  provision  may  be  made  by  general 
laws  under  the  amendment  of  X.  Y.  Const, 
art.  1,  §  7,  adopted  in  1894,  is  a  taking  of 
private  property  for  a  private  use,  in  viola- 
tion of  U.  S.  Const.  14th  Amend,  prohibiting 
a  state  from  depriving  any  person  of  his 
property  without  due  process  of  law.  Re 
Tuthill,  163  N.  Y.  133,  57  N.  E.  303,    49:  781 

655.  A  statute  which  makes  it  unlawful 
to  build  structures  on  one's  own  land,  which 
are  primarily  or  solely  intended  to  injure 
or  annoy  an  adjoining  owner,  and  which 
serve  no  really  useful  and  reasonable  pur- 
pose, is  not  unconstitutional  although,  if  it 
prohibited  the  erection  of  useful  and  valu- 
able structures,  it  would  deprive  the  owner 
of  property  without  due  process  of  law  and 
compensation.  Karasek  v.  Peier,  22  Wash. 
419,  61  Pac.  33,  50:  345 

655a.  Wharves  built  by  riparian  owners 
under  the  permission  and  license  of  the 
state  are  property  which  cannot  be  taken 
on  a  repeal  of  such  permission,  without  due 
process  of  law  and  due  compensation  there- 
for. Lewis  V.  Portland,  25  Or.  133,  35  Pac. 
256,  22 :  736 

Free  tuition  of  outside  children  in  city 
school. 

656.  A  statute  requiring  a  board  of  edu- 
cation vested  with  title  to  all  school  prop- 
erty within  the  limits  of  a  city,  and  which 
receives  state  aid  in  the  maintenance  of  its 
schools,  to  admit  thereto,  free  of  charge,  all 
children  living  within  a  half  mile  of  the  city 
limits,  does  not  deprive  it  of  its  pz'operty 
contrary  to  llie  law  of  the  land,  nor  does  it 
require  its  particular  services  or  take  its 
property  without  just  compensation.  Ed- 
mondson  v.  Board  of  Education  of  Memphis, 
108  Tenn.  557,  69  S.  W.  274.  58:  170 
Deduction  from  salaries  of  teachers. 

657.  A  statute  providing  for  the  deduction 
of  a  percentage  from  the  salaries  of  public- 
school  teachers  to  provide  a  pension  fund  for 
their  benefit  violates  either  the  constitution- 
al requirement  of  uniform  taxation,  or  the 
constitutional  protection  of  property  rights 
as  being  the  taking  of  private  property  from 
one  citizen  for  the  benefit  of  another.  Hub- 
bard v.  State  ex  rel.  Ward.  65  Ohio  St.  574, 
64  K  E.  109,  o8:  654 

3.  Taxation  and  Public  Improvpiuonts. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  IT.  a,  4. 

Notice  and  Hearing  as  to.  see  infra,  881- 
889. 

Right  of  Appeal  on  Ground  that  Constitu- 
tional Question  is  Involved,  see  Appeal 
and  Error.  67. 

Municipal  Taxation  of  Farm  Lands,  see  Mu- 
nicipal  Corporations,   583-586. 

As  to  Taxation  Generally,  see  Taxes. 

See  also  supra,  649. 

For  Editorial  Notes,  see  infra,  III.  §  8. 

658.  Property  of  taxpayers  is  not  taken 
without  due  process  of  law  by  a  statute  im- 


posing a  penalty  upon  a  county  for  lynch- 
ing and  authorizing  its  collection  in  the  tax 
levy.  Champaign  County  v.  Church,  62 
Ohio  St.  318,  57  X.  E.  50,  48:  738 

659.  A  street  car  company  cannot  be  made 
responsible  for  the  payment  of  a  privilege 
tax  imposed  upon  persons  leasing  the  right 
to  use  the  cars  for  advertising  purposes, 
under  a  constitutional  provision  that  no  one 
shall  be  deprived  of  his  property  witjiout 
due  process  of  law.  Knoxville  Traction  Co. 
V.  McMillan,  111  Tenn.  521,  77  S.  W.  665, 

65:  296 
Assessment  of  railroad  property. 

660.  Property  is  not  taken  without  due 
process  of  law  by  Xeb.  Comp.  Stat.  1901, 
chap.  77,  art.  1,  §§  39,  40,  requiring  railroad 
property  to  be  valued  and  assessed  by  one 
assessing  body,  and  the  aggregate  value  dis- 
tributed, on  a  mileage  basis,  to  the  various 
counties,  cities,  towns,  etc.,  through  which 
the  road  runs.  State  ex  rel.  Morton  v.  Back 
(Xeb.)   100  X.  W.  952,  69:447 

661.  Due  process. of  law  in  the  assessment 
of  railroad  propeity  is  not  denied  to  railway 
companies  by  a  law  making  the  assessment 
of  a  state  board  of  tax  commissioners  final, 
where  it  allows  after  assessment  a  correc- 
tion in  assessments  and  valuation,  on  the 
showing  of  a  railroad  company  or  on  motion 
of  the  board  itself.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Backus,  133  Ind.  513,  33  N.  E. 
421,  18:  729 

662.  Classification  of  railroads  for  privi- 
lege taxation  by  imposing  the  tax  on  those 
which  do  not  pay  ad  valorem  taxes  is  not 
an  imnatural  and  unreasonable  classification 
which  makes  the  tax  a  deprivation  of  prop- 
erty without  due  process  of  law,  although 
there  are  but  two  railroads  in  the  class. 
Knoxville  &  0.  R.  Co.  v.  Harris,  99  Tenn. 
684,  43  S.  W.  115,  53:  921 
Forfeiture  for  failure  to  enter  for  taxation. 

663.  The  forfeiture  of  land  under  W.  Va. 
Const,  art.  13,  §  6,  for  the  failure  of  the 
owner  to  enter  it  for  taxation  during  five 
successive  years,  does  not  violate  the  pro- 
vision as  to  due  process  of  law  in  the  Fed- 
eral Constitution,  as  such  forfeitures  were 
a  part  of  the  law  of  the  land  before  the 
provision  of  the  Federal  Constitution  was 
adopted.  State  v.  Sponaugle,  45  W.  Va. 
415,  32  S.  E.  283,  43:  727 
Reviving  lost  lien  for  taxes. 

664.  The  legislature  cannot  restore  and 
revive  a  lost  lien  of  the  state  for  taxes, 
when  a  tax  judgment  therefor  has  become 
outlawed.  Kipp  v.  Elwell,  65  Minn.  525, 
68  N.  W.  105,  .  33:435 
Succession  tax. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  440-445. 
See  also  infra,  888. 

605.  A  succession  tax  does  not  take  prop- 
erty without  due  process  of  law  when  it  is 
imposed  on  all  property  which  passes  by 
will  or  intestate  laws  except  when  the  es- 
tate is  less  than  $7,500.  State  ex  rel. 
Gelsthorpe  v.  Furnell,  20  Mont.  299,  51  Pac. 
207,  39:  170 

666.  A  statute  to  regulate  by  taxation  or 
otherwise  the  privilege  or  right  to  receive 


CONSTITUTIONAL  LAW,  II.  b,  4. 


607 


property  is  not  in  conflict  with  the  Ohio 
Bill  of  Rights,  which  recognizes  the  inalien- 
able right  of  acquiring  or  possessing  and 
protecting  property.  State  ex  rel.  Schwartz 
V.  Ferris,  53  Ohio  St.  314,  41  N.  E.  579, 

30:  218 
667.  The  right  of  succession  to  the  prop- 
erty of  a  deceased  person,  whether  by  law 
or  inheritance,  is  a  creature  of  statute  law, 
and  not  a  natural  right  beyond  legislative 
control.  State  v.  Alston,  94  Tenn.  674,  30 
S.  W.  750,  28:  178 

Public  improvements. 
Notice  and  Hearing  as  to,  see  infra,  890- 

894. 
Equal  Protection  as  to,  see  supra,  446. 
Police  Power  as  to,  see  infra,  951. 
Requiring    Railroad    Company    tcr,Pay    for 

Drain,  see  Eminent  Domain,  248. 
See  also  infra,  890-894;  Drains  and  Sewera, 

1-4;  Public  Improvements,  46,  47,  139. 
608.  The  enforcement  of  an  assessment 
for  local  improvements  upon  property  not  at 
all  benefited  thereby  is  the  taking  of  prop- 
ertv  without  due  process  of  law.  Oregon  & 
C.  R.  Co.  V.  Portland,  25  Or.  229,  35  Pac. 
452,  22:  713 

669.  A  statute  authorizing  assessments  on 
abutting  property  for  the  cost  of  a  public 
improvement,  in  a  sum  materially  e.xceeding 
the  special  benefits  which  that  property  de- 
rives from  the  work,  is  in  violation  of  the 
constitutional  provision  against  taking 
property  without  due  process  of  law,  or  tak- 
ing it  for  public  use  without  just  compensa- 
tion. Hutcheson  v.  Storrie,  92  Tex.  685,  51 
S.  W.  848,  45:  289 

670.  Assessments  for  paving,  made  ac- 
cording to  the  provisions  of  a  city  charter, 
by  apportioning  the  total  cost  of  the  work 
to  the  abutting  lands  according  to  frontage, 
do  not  constitute  a  taking  of  property  for 
public  use,  or  a  violation  of  U.  S.  Const.  14th 
Amend,  as  a  taking  of  property  without  due 
process  of  law.  Barber  Asphalt  Paving  Co. 
V.  French,  158  Mo.  534,  58  S.  W.  934,  54:  492 

670a.  A  statute  which  charges  the  entire 
cost  of  paving  the  streets  of  a  city  against 
the  property  abutting  the  paving,  and  in 
proportion  to  frontage,  is  not  in  contraven- 
tion of  the  14th  Amendment  to  the  Federal 
Constitution.  Webster  v.  Fargo,  9  N.  D. 
208,  82  N.  W.  732,  56:  156 

670b.  An  assessment,  on  every  lot  in  the 
city  of  St.  Paul,  of  an  annual  frontage  tax, 
under  Special  Laws  1885,  chap.  10,  §§  20,  27 
(St.  Paul  city  charter),  where  water  pipes 
are  laid  in  front  of  said  lot,  for  the  use  of 
the  water  commissioners,  is  not  unconstitu- 
tional, as  in  violation  of  the  14th  Amend- 
ment of  the  Federal  Constitution,  as  a  tak- 
ing of  property  without  due  process  of  law. 
Ramsey  County  v.  Robert  P.  Lewis  Co.  82 
Minn.  390,  85  N.  W.  207,  86  N.  W.  611, 

53:  421 

670c.  Property  is  not  taken  without  due 
process  of  law  by  an  assessment  for  a  local 
improvement  under  Ind.  Acts  1889,  p.  237, 
authorizing  by  §  3  an  estimate  of  the  assess- 
ments on  the  basis  of  frontage,  but  provid- 
ing in  §  7  for  a  hearing  of  persons  aggrieved 
before  the  assessment  is  made,  as  this  pro- 


vision impliedly  authorizes  and  requires  an 
adjustment  of  the  assessments  in  conform- 
ity with  the  actual  benefits.  Adams  v. 
Shelbyville,  154  Ind.  467,  57  N.  E.  114, 

49 :  797 

671.  An  assessment  for  construction  of  a 
sewer  upon  a  strip  of  property  fronting  on 
the  street,  which  is  only  8  feet  deep,  at  the 
same  front-foot  rate  as  is  applied  to  full- 
sized  lots,  is  so  manifestly  unequal  and  un- 
just that  it  violates  the  constitutional  pro- 
visions against  taking  property  without  due 
process  of  law.  Iowa  Pipe  &  Tile  Co.  v. 
Callanan,  125  Iowa,  358,  101  N.  W.  141, 

67 :  408 

672.  An  ordinance  which  provides  that  a 
city  shall  do  the  work  and  furnish  the  ma- 
terials for  making  a  sewer  connection  up 
to  within  3  feet  of  the  building  to  be  con- 
nected is  void  as  an  unreasonable  invasion 
of  the  rights  of  property  owners,  although 
the  city  may  properly  specify  the  materials 
to  be  usea  and  provide  that  the  work  shall 
be  done  only  by  some  person  licensed  by  the 
city  to  make  such  connections,  and  that  the 
work  shall  be  done  under  the  supervision  of 
the  city  inspector.  Slaughter  v.  O'Berry, 
126  N.  C.  181,  35  S.  E.  241,  48:  442 

673.  A  town  is  not  deprived  of  property 
without  due  propess  of  law  by  a  statute 
making  it  a  part  of  an  incorporated  high- 
way or  bridge  district  under  the  control  of 
commissioners  who  may  draw  upon  the 
town  for  a  fixed  portion  of  tjie  expenses  of 
the  district.  State  ex  rel.  Bulkeley  v.  Wil- 
liams, 68  Conn.  131,  35  Atl.  24,  421,    48.:  465 

4.  As  to  Regulation  of  Business;  Inspection; 
License;  Restrictions  on  Right  of  Con- 
tract. 

a.  In  General. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  II.  a,  5. 

Regulation  of  Fishing,  see  Fisheries,  I.  b. 

See  also  infra,  865,  989,  1025,  1070;  Phy- 
sicians and  Surgeons,  1,  6. 

674.  Sending  a  street  car  back  to  the 
stables  for  failure  to  comply  with  an  ordi- 
nance requiring  it  to  have  both  a  driver  and 
a  conductor  is  not  an  enforcement  of  the 
ordinance  and  the  infliction  of  punishment 
therefor  without  a  trial,  but  merely  re- 
moves a  nuisance  from  the  street;  and  the 
ordinance  may  properly  provide  for  such 
return.  South  Covington  &  C.  Street  R.  Co. 
V.  Berry,  93  Ky.  43,  18  S.  W.  1026,       15:  604 

675.  To  compel  persons  to  accept  the  de- 
cision of  a  statutory  umpire  as  to  the 
weight  of  grain,  and  preclude  them  from 
showing  error  in  his  weight,  whether  it  is 
the  result  of  bad  faith  or-  not,  would  be  a 
deprivation  of  property  without  due  proc- 
ess of  law.  Vega  S.  S.  Co.  v.  Consolidated 
Elevator  Co.  75  Minn.  308,  77  N.  W.  973, 

43:  843 

670.  Though  ah  ordinance  prohibiting  the 

storage  of  explosive  oils  rn  large  quantities 

within  the  corporate  limits  happens  to  have 

the  effect  of  putting  an  end  to  a  business, 


608 


CONSTITUTIONAL  LAW,  II.  b,  4. 


and  of  rendering  valueless  certain  structures 
used  in  connection  with  the  business,  its 
enforcement  will  not  constitute  a  depriving 
of  property  without  due  process  of  law, 
when  the  circumstances  justify  its  adoption 
as  a  police  regulation.  Crowley  v.  Ells- 
worth, 114  La.  308,  38  So.  199,  69:  276 
Regulating  practice  of  medicine. 
Equal  Protection  and  Privileges,  as  to,  see 

sunra,  492-509. 
Police  Power  as  to,  see  infra,  1031a-1033. 
See  also  supra,  500,  507. 

677.  A  statute  regulating  the  practice  of 
medicine,  including  osteopathy,  is  not  void, 
as  a  deprivation  of  property  without  due 
process  of  law,  because  it  requires  one  hav- 
ing an  established  practice  to  conform  to 
the  same  standard  of  quaiification  as  one 
who  contemplates  practising,  on  the  ground 
that  the  former  has  a  vested  right  in  the 
practice  which  he  has  already  established,  of 
which  he  cannot  be  deprived.  State  v. 
Gravett,  65  Ohio  St.  289,  62  N.  E.  325, 

55:  791 
Plumbing. 
Equal  Protection  and  Privileges  as  to,  see 

supra,  517,  518. 
Police  Power  as  to,  see  infra,  1029,  1030. 

678.  A  statute  requiring  every  member  of 
a  firm  engaged  in  the  plumbing  business  to 
be  a  registered  plumber,  whether  his  duties 
require  him  to  have  a  knowledge  of  that 
trade  or  not,  is  an  unconstitutional  inter- 
ference with  liberty  and  property.  Schnaier 
V.  Navarre  Hotel  &  I.  Co.  182  N.  Y.  83,  74 
N.  E.  561,  70:  722 
Guiding. 

679.  A  statute  providing  that  no  person 
shall  engage  in  the  business  of  guiding  in 
inland  fishing  or  forest  hunting  without 
having  registered  his  name,  age,  and  resi- 
dence, paid  a  fee  of  $1,  and  received  a  cer- 
tificate from  the  commissioners  of  inland 
fisheries  and  game,  and  imposing  a  .penalty 
for  a  violation  thereof,  is  not  unconstitu- 
tional as  a  deprivation  of  the  right  to  en- 
gage in  a  lawful  vocation,  since  the  fish  in 
the  waters  of  the  state  and  the  game  in  its 
forests  belong  to  the  people,  who,  through 
their  representatives,  have  sole  control 
thereof,  and  may  permit  or  prohibit  their 
takin?.  State  v.  Snowman,  94  Me.  99,  46 
Atl.  815.  50:544 
Banking. 

Equal   Protection   and   Privileges  as  to,  see 
supra.  510-.517. 

680.  The  right  to  pursue  a  banking  busi- 
ness is  a  property  riirht  which  cannot  be 
taken  away  from  a  citizen  by  statute  with- 
out due  process  of  law, — especially  where  he 
has  propertv  actually  emploved  in  the  busi- 
ness. State  V.  Scougal,  3  S."D.  55,  51  N.  W. 
858,  15:  477 

681.  Making  it  a  crime  for  an  insolvent 
banker  to  receive  deposits  does  not  deprive 
him  of  liberty  or  property  without  due  proc- 
ess of  liiw.  Mendowcroft  v.  People,  103  111. 
56.  45  X.  E.  ?m.  35:  176 
Maintenance  of  dairy. 

See  also  infra.  lOHfi.  > 

082.  A  nninicipal  ordinance  prohibiting 
the  maintenance  of  a  dairv  within  the  citv 


limits  neither  deprives  citizens  of  property 
without  due  process  of  law  nor  abridges 
their  privileges  or  immunities.  St.  Louis  v. 
Fischer,  167  Mo.  654,  67  S.  W.  872,  64:  679 
Sunday  law. 

Police  Power  as  to,  see  infra,  1017-1021. 
As  to  Sunday  Laws  Generally,  see  Sunday. 
For  Editorial  Notes,  see  infra,  III.  §  6. 

683.  A  barber  is  deprived  of  property 
without  due  process  of  law  by  a  statute 
making  it  unlawful  for  him  to  do  business 
on  Sunday,  while  it  does  not  apply  to  any 
other  class  of  business.  Eden  v.  People,  161 
111.  296,  43  N.  E.  1108,  •  32:  65D 
Prohibiting  private  markets. 

684.  A  person  is  not  deprived  of  his  prop 
erty  without  due  process  of  law  by  an  ordi- 
nance forbidding  private  markets  within  cer- 
tain limits  in  which  he  has  established  a 
market  and  expended  money  thereon.  New- 
son  V.  Galveston.  76  Tex.  559,  13  S.  W.  368, 

7:797 
Inspection  of  mines. 

685.  The  inspection  of  coal  mines,  under 
Hurd's  (111.)  Stat.  1897,  p.  1088,  providing 
for  the  inspection  of  mines  at  least  four 
times  a  year  and  as  often  as  the  inspector 
may  deem  necessary,  for  fees  of  not  less 
than  $6  nor  more  than  $10  for  each  inspec- 
tion, fixed  by  the  inspector  according  to  the 
length  of  time  consumed  and  the  expense  in- 
curred does  not  deprive  the  mine  owners  of 
their  property  without  due  process  of  law, 
or  deny  them  the  equal  protection  of  the 
laws,  on  the  ground  that  the  statute  does 
not  lay  down  proper  rules  for  its  impartial 
execution  by  fixing  the  fees  according  to 
some  definite  circumstance  or  condition,  and 
by  fixing  a  reasonable  number  of  inspec- 
tions, whereby  the  exercise  of  an  arbitrary 
discretion  might  be  avoided;  since  an  at- 
tempt to  lay  down  a  rule  by  statute  fixing 
the  number  of  inspections  would  prevent  a 
proper  protection  of  operative  miners,  as 
required  by  111.  Const,  art.  4,  §  29,  and  de- 
stroy the  purposes  of  the  act.  Consolidat- 
ed Coal  Co.  V.  People,  186  111.  134,  57  N.  E. 
880,  ■  56:  266 
Payment  for  examining  employees. 

686.  The  state,  under  its  police  power, 
may  require  railroad  employees  to  be  ex- 
amined by  a  competent  board  constituted  by 
state  authority,  as  to  their  fitness  for  their 
service,  and  impose  upon  the  railroad  com- 
panies the  reasonable  expense  of  such  ex- 
amination; and  such  imposition  will  not  de- 
prive the  companies  of  property  without  due 
process  of  law;  but  the  expense  imposed 
on  any  company  must  be  restricted  to  the 
examination  of  persons  who  are  about  to  be, 
or  are  at  any  time,  actually  employed  by  it, 
and  as  to  whom  examinations  are  compul- 
sory. Baldwin  v.  Louisville  &  N.  R.  Co.  80 
Ala.  619,  5  So.  311,  7:  266 
Restricting  transportation  of  game. 

687.  The  transportation  of  game  which 
has  been  killed  within  the  limits  of  a  state, 
and  which  has  been  sold,  or  which  is  intend- 
ed for  sale,  within  the  same  state,  may  law- 
fully be  prohibited  by  the  state  legislature. 
The  killing  of  game  vests  no  such  absolute 
title  to  it  in  the  killer  that  a  prohibition  to 


CONSTITUTIONAL  LAW.  II.  b,  4. 


609 


sell  it  deprives  him  of  his  property  without 
due  process  of  law.  American  Express  Co. 
V.  People,  133  111.  649,  24  N.  E.  758,     9:  138 

6.  Restricting  Right  of  Contract. 
(1)  In  General. 

As  to  Sunday  Contracts,  see  Sunday,  IV. 
See  also  infra,  816. 

For  Editorial  Notes,  see  infra.  III.  §§   13, 
14. 

688.  The  "liberty"  guaranteed  by  the 
Constitution  includes  the  right  to  freely  buy 
and  sell,  make  contracts,  and  have  them 
enforced  as  others  may.  State  v.  Loom  is, 
115  Mo.  307,  22  S.  W.  350,  .     21 :  789 

689  The  privilege  of  contracting"*  is  both 
a  liberty  and  a  property  right,  of  which  one 
cannot  be  deprived  without  due  process  of 
law.  Ritchie  v.  People,  155  III.  98,  40  N.  E. 
454,  29:  79 

690.  While  the  right  to  contract  may  be 
subject  to  limitations  growing  out  of  the 
duties  which  the  individual  owes  to  society, 
the  public,  or  the  government,  the  power  of 
the  legislature  to  limit  such  right  must  rest 
upon  some  reasonable  basis,  and  cannot  be 
arbitrarily  exercised.  Id. 

691.  The  right  to  make  contracts  is  inher- 
ent and  inalienable  under  111.  Const,  art.  2, 
§  1,  declaring  that  all  men  are  by  nature 
free  and  independent  and  have  certain  in- 
herent and  inalienable  rig'hts,  among  which 
are  life,  liberty,  and  the  pursuit  of  happi- 
ness; and  any  attempt  to  unreasonably 
abridge  it  is  unconstitutional.  Id. 

692.  A  statute  limiting  the  rights  of  a 
citizen  to  contract  with  reference  to  his 
property  must  tend  to  promote  the  public 
good  in  some  way  or  it  is  an  unwarranted 
interference  therewith.  Dennis  v.  Moses,  18 
Wash.  537,  52  Pac.  333,  40:  302 

693.  The  power  of  a  corporation  to  con- 
tract is  not  property  such  that  it  cannot  be 
limited  by  the  legislature,  where  there  is 
general  TK)wer  to  amend  or  repeal  charters. 
State,  Curtis  v.  Brown  &  S.  Mfg.  Co.  18  R. 
I.  16,  25  Atl.  246,  17:  856 

694.  The  state  has  no  right  to  interfere 
and  control  by  compulsory  legislation  the 
action  of  municipal  corporations  with  re- 
spect to  property  and  contract  rights  of  ex- 
clusively local  concern.  People  ex  rel. 
Rodgers  v.  Coler,  166  N.  Y.  1,  59  N.  E.  716, 

52:  814 

695.  A  statute  requiring  that  all  bonds 
for  the  faithful  performance  of  official  or 
fiduciary  duties,  or  the  faithful  keeping, 
applyinjT,  or  accounting  for  funds  or  prop- 
erty, with  certain  exceptions,  must  be  exe- 
cuted by  a  surety  company  or  companies, 
is  invalid  as  an  invasion  of  the  liberty  to 
contract  guaranteed  by  the  Constitution. 
State  ex  rel.  McKell  v.  Robins,  71  Ohio  St. 
273,  73  N.  E.  470,  69:  427 
Mortgages. 

696.  A  statute  limiting  the  right  to  en- 
force a  debt  secured  by  mortgage  to  the 
property  mortgaged,  whether  realty  or  chat- 
tels, is  an  undue  restraint  upon  the  liberty 

L.R.A.  Die.— 39. 


of  a  citizen  to  contract  with  respect  to  his 
property  rights.  Dennis  v.  Moses,  18  Wash. 
537,  52  Pac.  333,  40:  302 

697.  No  constitutional  right  of  contract, 
inw  in  relation  to  personal  property  is  in- 
fringed by  permitting  residents  of  the  state 
to  retain  possession  of  their  chattels  while 
giving  a  lien  on  them  by  filing  a  mortgage 
where  they  reside,  and  making  no  provision 
for  such  mortgage  in  case  of  nonresidents. 
McFadden  v.  Blocker,  3  Ind.  Terr.  224,  54 
S.  W.  873,  58:  894 
Insurance  contracts. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  405-411. 
Police  Power  as  to,  see  infra,  1009. 
see  also  infra,  739,  740. 

698.  A  statute  requiring  payment  of  the 
full  amount  of  a  policy  on  a  total  loss  is 
not  unconstitutional  as  a  violation  of  the 
fundamental  idea  of  insurance,  or  because  of 
its  supposed  bad  policy.  Daggs  v.  Orient 
Ins.  Co.  136  Mo.  382,  38  S.  W.  85,        35:  227 

699.  Disseisin  of  privileges  or  deprivation 
of  property  otherwise  than  by  the  law  of 
the  land  or  due  process  of  law  contrary  to 
Tenn.  Const,  art.  1,  §  8,  or  U.  S.  Const.  14th 
Amend.  §  1,  is  not  made  by  Tenn.  Acts 
Gen.  Assem.  1893,  chap.  107,  §  1,  making 
void  all  stipulations  in  insurance  policies 
which  limit  liability  to  less  than  the  full 
amount  of  loss,  if  this  does  not  exceed  the 
amount  of  insurance.  Dugger  use  of  Second 
Nat.  Bank  v.  Mechanics'  &  T.  Ins.  Co.  95 
Tenn.  245,  32  S.  W.  5,  28:  796 

(2)  With  Employees. 

Validity  of  Statute  against  Employers  Com- 
bining to  Prevent  Procuring  of  Employ- 
ment, see  Blacklisting,   1. 

See  also  supra,  541-543,  685,  686. 

For  Editorial  Notes,  see  infra.  III.  §§  13,  16. 

700.  The  right  to  labor  or  employ  labor 
and  make  contracts  in  respect  thereto,  upon 
such  terms  as  may  be  agreed  upon,  is  in- 
cluded in  the  guaranty  of  111.  Const,  art.  2, 
§  2,  that  no  person  shall  be  deprived  of  life, 
libertv,  or  property  without  due  process  of 
law.  'Ritchie  v.  People,  155  111.  98,  40  N.  E. 
454,  ■  29:  79 

701.  The  liberty  to  enter  into  contracts  by 
which  labor  may  be  employed  in  such  way 
as  the  laborer  may  deem  most  beneficial,  and 
to  others  to  employ  such  labor,  is  neces- 
sarily included  in  the  constitutional  guar- 
anty of  the  right  to  property.  Braceville 
Coal  Co.  V.  People,  147  111.  66,  35  N.  E.  62. 

22:340 

702.  Statutes  regulating  contracts  be- 
tween corporations  and  their  employees  may 
be  enacted  under  the  reserved  power  to 
amend  corporate  charters.  Leep  v.  St. 
T.ouis,  L  M.  &  S.  R.  Co.  58  Ark.  407,  25  S. 
W.  75,  23:  264 

703.  The  restriction  by  statute  of  con- 
tracts between  corporations  and  employees 
is  not  unconstitutional  because-  interfering 
with  the  right  of  the  employees  to  contract. 

Id. 

704.  A  statute  making  it  a  misdemeanor 


610 


CONSTITUTIONAL  LAW,  II.  b,  4 


for  one  under  contract  to  labor  or  work 
land  to  break  his  contract  and  enter  into 
another  with  a  different  person,  without  the 
consent  of  his  employer,  and  sufficient  ex- 
cuse, to  be  adjudged  by  the  court,  and  with- 
out giving  notice  of  his  contract  to  the  per- 
son with  whom  he  makes  the  new  one,  vio- 
lates the  constitutional  guaranties  of  life, 
liberty,  and  property,  and  abridges  the 
privileges  and  immunities  of  citizens  of  the 
United  States.  Toney  v.  State,  141  Ala. 
120,  37  So.  332,  67:  286 

705.  A  statute  making  void  a  contract  by 
a  corporation  for  the  release  or  relief  from 
liability  to  an  employee  for  negligence  of  a 
fellow  servant  is  not  unconstitutional. 
Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Mont- 
gomery, 152  Ind.  1,  49  N.  E.  582,  69:  875 
As  to  membership  in  labor  organization. 

706.  A  statute  forbidding,  under  penalty, 
an  employer  from  discharging  an  employee 
because  he  is  a  member  of  a  labor  organiza- 
tion, violates  the  constitutional  guaranty  of 
liberty.  State  ex  rel.  Zillmer  v.  Kreutzberg, 
114  Wis.  530,  90  N.  W.  1098.  58:  748 

707.  A  statute  which  makes  it  unlawful 
to  discharge  an  employee  because  he  belongs 
to  a  lawful  labor  organization,  and  which 
provides  for  the  recovery  of  damages  for 
such  discharge,  is  void,  since  the  right  to 
terminate  a  contract  is  within  the  protec- 
tion of  the  state  and  Federal  Constitutions, 
which  guarantee  to  every  citizen  the  pro- 
tection of  life,  liberty,  and  property.  Coffey- 
ville  Vitrified  Brick  &  T.  Co.  v.  Perry,  69 
Kan.  297,  76  Pac.  848,  66:  185 

708.  A  right  to  insist  that  employees  shall 
withdraw  from  or  refrain  from  joining  any 
trade  union  or  labor  union,  as  a  condition  of 
employment,  or  continued  employment,  is 
within  the  constitutional  rights  of  an  em- 
ployer, and  protected  by  the  constitutional 
guaranty  of  due  process  of  law  against  a 
statute  which  attempts  to  make  it  an  of- 
fense for  an  employer  to  impose  such  con- 
ditions. State  V.  Julow,  129  Mo.  163.  31  S. 
W.  781,  29:  257 

709.  A  statute  making  it  unlawful  to  pre- 
vent, or  attempt  to  prevent,  an  employee 
from  joining  any  lawful  labor  organization, 
or  to  discharge  an  employee  because  of  his 
connection  with  such  an  organization,  and 
providing  a  penalty  therefor  (Hurd's  Rev. 
Stat.  1899,  chap.  48,  §  32),  is  void,  since  the 
right  to  terminate  a  contract,  subject  to 
liability  to  respond  in  a  civil  action  for  an 
unwarranted  termination,  is  within  the  pro- 
tection of  the  provisions  of  tha  state  and 
Federal  Constitutions,  which  guarantee  that 
no  person  shall  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law. 
Oillespie  v.  People,  188  111.  176,  58  N.  E. 
1007,  52:  283 
As  to  hours  of  labor. 

Equal  Protection  and  Privileges  as  to,  see 

supra.  547-551. 
Police  Power  as  to,  see  infra,  1043-1050. 
See  also  infra.  718,  1049. 
For  Editorial   Xotes,   see  infra,  ITT.    §§    13. 

16. 

710.  A  statute  making  it  unlawful  to 
work    more   than    eight    hours    per    day    in 


mines  or  smelters  is  in  violation  of  Colo. 
Const,  art.  2,  §  3,  guaranteeing  liberty  and 
the  right  to  acquire,  possess,  and  protect 
property.  Re  Morgan,  26  Colo.  415,  58  Pac. 
1071,  47:52 

711.  An  act  limiting  to  eight  hours  per 
day  the  work  of  laborers,  mechanics,  etc., 
employed  on  behalf  of  the  state  or  any  of 
the  political  subdivisions  thereof  except  in 
certain  stipulated  cases;  and  requiring  that 
every  contract  for  public  work  shall  con- 
tain a  stipulation  that  no  laborer,  work- 
man, or  mechanic  shall  be  permitted  to 
work  more  than  eight  hours  under  penalty 
of  a  forfeiture  by  the  contractor  of  a  cer- 
tain sum  for  each  day  any  person  shall 
work  more  than  such  time;  and  providing 
that  noncompliance  with  the  terms  of  the 
statute  shall  be  deemed  a  misdemeanor, 
punishable  by  fine  or  imprisonment  or  both, 
— is  an  unconstitutional  abridgment  of  the 
right  to  contract,  and  an  invasion  of  the 
right  of  liberty  and  property.  Cleveland  v. 
Clements  Bros.  Constr.  Co.  67  Ohio  St.  197, 
65  N".  E.  885,  59:  775 

712.  The  eight-hour  law  enacted  by  Kan. 
Laws  1891,  chap.  114,  limiting  a  day's  work 
by  persons  employed  by  or  on  behalf  of  the 
state  or  of  any  county,  city,  township  or 
other  municipality  of  the  state,  is  a  valid 
and  constitutional  direction  of  the  state  to 
its  agents.  Re  Dalton.  61  Kan.  257,  .59 
Pac.  336,  47:  380 

713.  A  restriction  of  the  hours  of  labor  on 
city  contracts  to  eight  hours  per  day  by  a 
contract  providing,  in  accordance  with  Chi- 
cago Rev.  Code,  §  1687,  for  the  forfeiture  of 
the  contract  in  case  laborers  work  more  than 
eight  hours  in  one  day,  is  unconstitutional 
as  an  infringement  upon  the  freedom  of 
contract.  Fiske  v.  People  ex  rel.  Ravmond, 
188  111.  206,  58  N.  E.  985,  52:  291 

714.  A  municipal  ordinance  fixing  the 
hours  of  labor  and  the  minimum  rate  of 
wages  to  be  paid  laborers  iipon  a  public  con- 
tract does  not  interfere  with  the  constitu- 
tional guaranty  of  liberty  and  property; 
since  the  public  has  the  right  to  do  its  work 
in  any  manner  it  sees  fit,  and  to  compel 
those  with  whom  it  contracts  to  perform 
the  work  in  the  same  manner.  Re  Broad,  36 
Wash.  449,  78  Pac.  1004,  70:  1011 

715.  A  city  ordinance  providing  that  eight 
hours  labor  constitutes  a  legal  day's  work, 
where  performed  under  a  contract  of  the 
city,  and  that  anyone  who  under  such  con- 
tract demands,  receives,  or  contracts  for 
more  than  eight  hours'  labor  in  one  day 
from  any  person,  or  who  employs  Chinese 
labor,  shall  be  guilty  of  misdemeanor  and 
punished  by  fine, — is  an  attempt  to  prevent 
certain  parties  from  employing  others  in  a 
lawful  business,  and  is  therefore  unconsti- 
tutional and  void.  Re  Kubach,  85  Cal.  274, 
24  Pac.  737,  9:  482 

716.  Forbidding  the  employment  of  fe- 
males in  certain  establishments  more  than 
ten  hours  a  day  does  not  unconstitutionally 
deprive  them  of  life,  liberty,  or  property. 
State  V.  Buchanan,  29  Wash.  602,  70  Pac. 
52,  59:  342 

717.  A    statute    prohibiting    the    employ- 


CONSTITUTIONAL  LAW,  II.  b,  4. 


611 


nient  of  females  in  any  factory  or  work- 
shop more  than  eight  hours  a  day  is  un- 
constitutional as  a  purely  arbitrary  restric- 
tion upon  the  fundamental  right  of  the  citi- 
zen to  control  his  or  her  own  time  and 
faculties,  and  a  substitution  of  the  legis- 
lative judgment  for  that  of  the  employer 
and  the  employee  in  a  matter  about  which 
they  are  competent  to  agree  with  each  other. 
Ritchie  v.  People,  ,155  111.  98,  40  N.  E.  454, 

29:  79 
As  to  wages. 
Equal  Protection  and  Privileges  as  to,  see 

supra,  552-^04. 
Police  Power  as  to,  see  infra,  1038-1042. 
See  also  supra,  558,  infra,  834,  1042. 
For  Editorial  Notes,  see  infra.  III.  §§  13,  16. 

718.  The  constitutional  right  to^  contract 
with  reference  to  compensation  for  services 
is  violated  by  a  statute  limiting  a  legal 
day's  work  to  eight  hours,  and  requiring  for 
every  hour's  work  in  excess  of  that  number 
double  the  pay  of  the  preceding  hour.  Low 
V.  Rees  Printing  Co.  41  Neb.  127,  59  N.  W. 
362,  24:  702 

719.  The  right  of  an  individual  to  contract 
to  labor,  with  a  period  of  credit  for  payment 
of  his  wages,  is  included  in  the  constitution- 
al right  to  acquire  and  possess  property. 
Leep  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  58  Ark. 
407,  25  S.  W.  75,  23 :  264 

720.  A  law  which  deprives  men  engaged 
in  the  business  of  mining  of  the  privilege  of 
contracting  with  each  other  for  the  pur- 
pose of  ascertaining  the  weight  of  the  coal 
mined  or  the  amount  due  them>in  any  man- 
ner mutually  satisfactory  cannot  be  sus- 
tained. Harding  v.  People,  160  111.  459,  43 
N.  E.  624,  32:  445 

721.  A  statute  requiring  the  weighing  of 
coal  hoisted  from  mines,  which  is  made  ap- 
plicable to  those  mines  only  whose  product 
shall  be  shipped  by  rail  or  water,  violates  a 
constitutional  prohibition  against  depriving 
persons  of  liberty  or  property  without  due 
process   of   law.  Id. 

722.  The  rights  of  minere  and  operators  to 
inake  contracts  by  which  the  former  shall 
be  entitled  to  receive  and  the  latter  obliged 
to  make  compensation  according  to  the 
value  of  the  services  rendered  and  received 
are  unwarrantably  invaded  by  Ohio  act 
March  9,  1898  (93  Ohio  Laws,  p.  33),  en- 
titled "An  Act  to  Provide  for  the  Weighing 
of  Coal  before  Screening,"  by  which  it  is 
made  unlawful  to  pass  the  output  of  coal 
mined  over  any  screen  or  other  device  which 
shall  take  any  part  from  the  value  thereof, 
before  it  ha«  been  weighed  and  duly  credited 
to  the  employee  sending  it  to  the  surface, 
and,  accounted  for  at  the  legal  rate  of 
weights  fixed  bv  statute.  Re  Preston,  63 
Ohio  St.  428,  59  N.  E.  101,  52:  523 

723.  A  statute  requiring  the  wages  of  coal 
miners,  if  based  on  the  quantity  of  coal 
mined,  to  be  computed  on  the  whole  quan- 
tity mined  before  it  is  reduced  by  screen- 
ing or  any  other  device,  and  that  all  coal 
sh.all  be  weighed  in  the  cars  before  being 
dumped  into  screens  or  chutes,  is  unconsti- 
tutional as  an  attempt  to  take  away  with- 


out due  process  of  law  the  property  right  of 
contracting  in  respect  to  such  wages. 
Ramsey  v.  People,  142  III.  380,  32  N.  E.  364, 

17:  853 

724.  A  statute  forbidding,  under  penalty, 
persons  or  corporations  engaged  in  private 
enterprises  from  paying  employees  in  store 
orders  not  redeemable  in  cash  is  unconstitu- 
tional as  interfering  with  the  right  to  con- 
tract. State  v.  Missouri  Tie  &  Timber  Co. 
181  Mo.  536,  80  S.  W.  933,  65:  588 

725.  A  statute  prohibiting  mining  or 
manufacturing  concerns  from  issuing  for  the 
payment  of  wages  any  order  or  other  evi- 
dence of  indebtedness  payable  otherwise 
than  in  lawful  money  of  the  United  States, 
unless  the  same  is  negotiable  and  redeem- 
able without  discount  in  cash  or  in  supplies 
at  the  option  of  the  holder,  is  void  as  de- 
priving persons  of  liberty  without  due  pro- 
cess of  law.  State  v.  Loomis,  115  Mo.  307. 
22   S.  W.  350,  21 :  789 

726.  A  statute  providing  that  every  per- 
son, firm,  corporation,  or  company  using 
coupons,  scrip,  punchouts,  store  orders,  or 
other  evidences  of  indebtedness  to  pay  its 
laborers  and  employees  shall,  if  demanded, 
redeem  the  same  in  the  hands  of  such  labor- 
ers, employees,  or  bona  fide  holders  in  good 
and  lawful  money  of  the  United  States,  at 
their  face  value,  if  presented  on  any  regular 
pay  day,  does  not  deprive  persons  of  liberty 
or  property  without  due  process  by  restrict- 
ing the  right  of  contract.  Harbison  v. 
Knoxville  Iron  Co.  103  Tenn.  421,  53  S.  W. 
955,  56:  316 

727.  A  statute  making  it  unlawful  for  a 
person  or  corporation  engaged  in  mining  or 
manufacturing  to  engage  or  be  interested  in 
keeping  or  controlling  any  truck,  store,  shop, 
or  scheme,  for  furnishing  supplies,  tools, 
clothing,  provisions,  or  groceries,  to  employ- 
ees; but  which  does  not  apply  to  those  em- 
ploying laborers  in  other  branches  of  busi- 
ness,— ^violates  the  constitutional  guaranty 
that  no  person  shall  be  deprived  of  life,  lib- 
erty, or  property  without  due  process  of 
law.  Frorer  v.  People,  141  111.  171,  31  N.  E. 
395,  16:  492 

728.  A  restriction  of  the  right  of  corpo- 
rations to  contract  with  employees  as  to 
payment  of  wages  requiring  weekly  pay- 
ments denies  the  constitutional  rights  of  the 
employees,  and  does  not  affect  the  corpo- 
ration merely.  Braceville  Coal  Co.  v.  Peo- 
ple, 147  111.  66,  35  N.  E.  62,  22:  340 

729.  A  statute  requiring  the  weekly  pay- 
ment of  wages,  by  interfering  with  the 
liberty  of  contract,  deprives  citizens  of  their 
liberty  and  property  without  due  process  of 
law.  Republic  Iron  &  S.  Co.  v.  State,  160 
Ind.  379,  66  N.  E.  1005,  62:  136 

730.  A  statute  requiring  manufacturers  to 
pay  wages  of  their  employees  weekly,  al- 
though applying  to  individuals  as  well  as  to 
corporations,  is  within  the  power  of  the  leg- 
islature under  the  Massachusetts  Constitu- 
tion, which  extends  such  power  to  "all  man- 
ner of  wholesome  and  reasonable  orders, 
laws,  statutes,  and  ordinances,"  and  does  not 
in  terms  make  any  provisions  as  to  free- 


612 


CONSTITUTIONAL  LAW,  II.  b.  4. 


dom  or  liberty  of  contract.     Re  House  Bill 
No.  1,230,  163  Mass.  &89,  40  N.  E.  713, 

28:344 

731.  A  statute  forbidding  an  employer  to 
impose  a  fine  upon,  or  to  withhold  wages 
from,  an  employee  engaged  in  weaving,  for 
any  imperfections  in  the  weaving,  is  in 
violation  of  a  constitutional  provision  which 
enumerates  among  the  natural  and  inalien- 
able rights  of  men  the  rights  of  acquiring, 
possessing,  and  protecting  property,  as  this 
right  includes  the  right  to  make  reasonable 
contracts  which  shall  be  under  the  protec- 
tion of  the  law.  Com.  v.  Perry,  155  Mass. 
117,  28  N.  E.  1126,  14:  325 

732.  Corporations  may,  by  statute,  be 
compelled  on  the  discharge  of  an  employee 
to  pay  the  wages  then  earned,  and  without 
discount  for  prepayment,  although  by  the 
terms  of  his  contract  the  wages  would  not 
have  been  yet  payable,  if  power  to  amend 
their  charter  has  been  reserved.  Leep  v.  St. 
Louis  I.  M.  &  S.  R.  Co.  58  Ark.  407,  25  S. 
W.  75,  23:  264 

733.  A  statute  depriving  a  city  and  one 
contracting  with  it  to  perform  work  on  pub- 
lie  improvements,  of  the  power  to  contract 
for  the  necessary  labor  at  the  best  rates  ob- 
tainable, violates  the  principles  of  civil 
liberty  and  the  constitutional  provisions  pro- 
tecting private  property.  People  ex  rel. 
Rodgers  v.  Coler,  166  N.  Y.  1,  59  N.  E.  716, 

52:  814 

734.  Municipal  corporations  cannot  be  re- 
quired by  the  legislature  to  pay  more  for 
common  labor  employed  on  public  improve- 
ments than  it  is  worth  in  the  market.  Such 
legislation  unconstitutionally  deprives  the 
taxpayers  of  their  privileges  and  immuni- 
ties, and  of  their  property  without  due 
process  of  law,  interferes  with  their  right 
of  contract,  and  is  invalid  as  class  legisla- 
tion. Street  v.  Vamey  Electrical  Supplv 
Co.  160  Ind.  338,  66  N.  E.  895,  61:  154 

735.  A  statute  prohibiting  the  assignment 
of  future  wages  by  employees  is  not  void 
as  an  unreasonable  restraint  upon  the  lib- 
erty of  the  citizen,  or  as  depriving  him  of 
his  property  without  due  process  of  law. 
International  Text-Book  Co.  v.  Weissinger, 
160  Ind.  349,  65  N.  E.  521.  65:  599 

c.  Regulation  of  Rates. 

For  Editorial  Notes,  see  infra,  TIT.  §  17. 

736.  A  statute  limiting  the  amount  of  toll 
which  may  be  taken  by  a  water  mill  which 
does  grinding  for  the  public  is  not  unconsti- 
tutional. State  V.  Edwards,  86  Me.  102,  29 
Atl.  947,  25:504 

737.  A  reduction  of  the  rates  of  a  turn- 
pike company  will  not  constitute  a  depri- 
vation of  its  property  without  due  process 
of  law,  where  it  does  not  appear  that  the 
dividends  will  be  thereby  reduced,  or.  if  so, 
to  what  extent.  Winchester  «S:  L.  Tump. 
Road  Co.  T.  Croxton,  98  Ky.  739,  34  S.  W. 
518.  33:  177 

738.  N.  Y.  act  1888,  chap.  581,  which  fixes 
a  maximum  charge  for  elevating  grain,  is 
not    unconstitutional   as   depriving   elevator 


owners  of  their  property  without  due  proc- 
ess of  law,  as  the  legislature  has  power  to 
control  and  regulate  elevator  charges  in  the 
cases  where  that  act  applies,  which  rests  on 
the  nature  and  extent  of  the  business,  the 
existence  of  a  virtual  monopoly,  the  benefit 
derived  from  the  canal,  creating  the  business 
and  making  it  possible,  the  interest  to  trade 
and  commerce,  the  relation  of  the  business 
to  the  prosperity  and  welfare  of  the  state, 
and  the  practice  of  legislation  in  analogous 
cases.  People  v.  Budd,  117  N.  Y.  1,  22  N. 
E.  670,  5:  559 

For  insurance. 

739.  The  constitutional  guaranty  of  the 
right  to  life,  liberty,  and  property  does  not 
include  the  right  of  insurers  to  contract 
among  themselves  for  the  maintenance  of 
rates.  State  ex  rel.  Crow  v.  Firemen's 
Fund  Ins.  Co.  152  Mo,  1,  52  S.  W.  595, 

45:  363 

740.  The  Kansas  anti-trust  law  of  1897 
making  unlawful  any  combination  to  create 
or  carry  out  restrictions  on  trade  or  com- 
merce, to  control  the  prices  of  any  article 
or  commodity  or  the  rates  of  insurance,  or 
to  prevent  competition  in  the  manufacture, 
transportation,  sale,  or  purchase  of  mer- 
chandise, produce,  or  commodities  does  not 
conflict  with  the  guaranty  of  the  Federal 
Constitution  of  the  right  to  acquire  prop- 
erty by  lawful  contract,  and  is  a  valid  exer- 
cise of  legislative  power.  State  v.  Smiley, 
65  Kan.  240,  69  Pac.  199,  67 :  903 
Of  carrier. 

Equal  Protection   and  Privileges  as  to,  see 

supra,  420,  421. 
See  also  infra,  919. 
For  Editorial  Notes,  see  infra.  III.  §  17. 

741.  The  right  to  regulate  fares  on  street 
railroads  does  not  include  the  power  to  re- 
quire passengers  to  be  carried  without  re- 
ward, or  for  such  sum  as  will  amount  to 
confiscation  or  the  taking  of  property  with- 
out compensation  or  due  process  of  law. 
Indianapolis  v.  Navin,  151  Ind.  139,  156,  47 
N.  E.  525,  51  N.  E.  80,  41:  337 

742.  A  railroad  company  which  was  in- 
corporated and  acquired  its  property  rights 
and  franchises  after  the  enactment  of  N.  Y. 
Laws  1895,  chap.  1027,  requiring  such  com- 
panies to  issue  1,000-mile  tickets  at  reduced 
prices,  is  not  deprived  of  property  without 
due  process  of  law  by  the  enforcement  of 
such  statute.  Purdv  v.  Erie  R.  Co.  162  N. 
Y.  42,  56  N.  E.  508,'  48:  669 

743.  A  statute  prohibiting  more  than  fair 
and  reasonable  rates  by  a  railroad  corpora- 
tion, being  merely  declaratory  of  a  com- 
mon-law rule,  although  penal,  does  not  de- 
prive the  company  of  its  property  without 
due  process  of  law  because  the  statute  does 
not  fix  any  limit  to  the  rates, — especially 
where  a  provision  is  made  in  the  same  stat- 
ute for  the  fixing  of  rates  by  commission- 
ers. Chicaco,  B.  &  Q.  R.  Co.  v.  Jones,  149 
111.  361,  37  N.  E.  247.  24:  141 

744.  A  statute  absolutely  requiring  a  rail- 
road company  to  carry  freight  for  the  same 
rates  that  any  other  company  may  accept 
for  hauling  the  same  freight  between  the 
same    points,    although    by    a    shorter    line. 


CONSTITUTIONAL  LAW,  II.  b,  4. 


613 


without  giving  the  right  of  judicial  investi- 
gation by  due  process  of  law,  and  no  matter 
how  great  disparity  in  the  length  of  such 
hauls  may  be, — is  unconstitutional  as  a  dep- 
rivation of  -pioperty  without  due  process  of 
law.  State  ex  rel.  Board  of  Transp.  v. 
Sioux  City,  O.  &  W.  R.  Co.  46  Neb.  682,  65 
N.  W.  766,  31 :  47 

745.  A  statute  imposing  a  penalty  for 
charging  more  than  just  and  reasonable 
compensation  for  the  services  of  a  carrier, 
without  fixing  any  standard  to  determine 
what  is  just  and  reasonable,  thus  leaving 
the  criminality  of  the  carrier's  act  to  de- 
pend on  the  jury's  view  of  the  reasonable- 
ness of  a  rate  charged,  is  in  violation  of  the 
constitutional  provision  against  taking  prop- 
erty without  due  process  of  law.,  Louisville 
&  N.  R.  Co.  V.  Com.  99  Ky.  132,"  35  S.  W. 
129,  33 :  209 

d.  Regulation  of  sales. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  II.  a,  5  a. 
Police  Power  as  to,  see  infra,  1076-1078. 
See   also   supra,   727;    infra,   778-782,    1073, 

1075. 

746.  The  mixing  or  mingling  of  articles  of 
food  which  are  wholesome  and  nutritious, 
and  the  sale  thereof,  cannot  be  made  crimi- 
nal by  the  legislature.  Dorsey  v.  State, 
38  Tex.  Crim.  Rep.  527,  44  S.  W.  514,  40:  201 

747.  A  statute  which  makes  it  unlawful 
to  maKC  options  for  the  sale  of  commodities 
of  those  kinds  which  have  been  the  sub- 
ject of  gambling  operations  does  not  violate 
the  constitutional  provisions  against  depri- 
vation of  property  without  due  process  of 
law.  Booth  V.  People,  186  111.  43,  57  N.  E. 
798,  ^  50:  762 

748.  An  act  which  merely  makes  a  regu- 
lation for  the  sale  of  lard,  by  which  the  pub- 
lic may  know  by  inspection  of  the  package 
the  ingredients  used  in  its  preparation  if  it 
is  not  the  pure  fat  of  healthy  swine,  is  not 
nn  unwarranted  interference  with  trade,  and 
does  not  violate  the  constitutional  provisions 
as  to  due  process  of  law.  State  v.  Snow,  81 
Iowa,  642,  47  N.  W.  777,  11:355 
Cigarettes. 

749.  An  ordinance  prohibiting  the  sale  of 
cigarettes  without  a  license  does  not  violate 
the  constitutional  provisions  as  to  due  pro- 
cess of  law  or  any  constitutional  rights. 
Cundling  v.  Chicago,  176  111.  340,  52  N.  E. 
44,  48:  230 
Fish. 

See  also  infra,  982-984. 

750.  The  wholesomeness  of  trout  as  food 
does  not  make  a  statute  prohibiting  them 
to  be  sold  or  kept  in  possession  for  the  pur- 
pose of  sale  operate  to  deprive  the  owner 
of  property  without  due  process  of  law, 
where  the  statute  permits  him  to  have 
them  in  possession  for  the  purpose  of  eat- 
ing them  or  giving  them  away.  State  v. 
Schuman,  36  Or.  16,  58  Pac.  661,  47:  153 
Tickets. 

Equal  Protection  and  Privileges  as   to,  see 

supra,  422,  423. 
See  also  infra,  1080. 

''51.  A  person  is  not  deprived  of  his  prop- 


erty in  a  carrier's  ticket  without  due  proc- 
ess of  law  by  prohibiting  the  sale  thereof, — 
at  least  where  he  purchased  the  ticket 
while  the  act  was  in  force.  State  v.  Cor- 
bett,  57  Minn.  345,  59  N.  W.  317,  24:  498 

752.  A  statute  making  it  unlawful  for  any 
person  to  sell  a  railroad  or  steamboat  tick- 
et, or  any  part  thereof,  without  a  certificate 
from  the  carrier,  except  in  case  of  the  sale 
of  part  of  a  ticket  by  a  person  who  has 
bought  it  with  the  bona  fide  intention  of 
traveling  upon  it,  does  not  violate  the  con- 
stitutional provision  against  deprivation  of 
life,  liberty,  or  property,  without  due  proc- 
ess of  law.  Burdick  v.  People,  149  111.  600, 
36  N.  E.  948,  24:  152 

753.  An  ordinance  making  it  a  penal  of- 
fense for  any  person,  except  a  duly  author- 
ized conductor  or  agent  of  a  street  rail- 
way company,  to  issue,  deliver,  give,  or 
sell  any  transfer,  transfer  check,  or  ticket 
issued,  or  purporting  to  be  issued,  by  such 
company,  is  not  unconstitutional  as  an  un- 
lawful deprivation  of  property,  since  it  in- 
terferes with  no  rights  enjoyed  by  the  pas- 
senger under  his  contract  with  the  railway 
company,  as  the  transfer  is  given  to  him 
for  the  purpose  of  enabling  him  to  continue 
his  journey,  and  is  not  transferable  or  as- 
signable to  another;  nor  is  it  a  depriva- 
tion of  the  personal  liberty  guaranteed  by 
U.  S.  Const.  14th  Amend.  §  1,  and  Cal.  Const, 
art.  1,  §  1.  Ex  parte  lorenzen,  128  Cal.  431. 
61  Pac.  68,  50:  55 
Intoxicating  liquors. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  486-491. 

Provision  for  licensing  Liquor  Sellers,  see 
Intoxicating  Liquors,  6-8. 

Regulation  of  Liquors  Generally,  see  Intox- 
icating Liquors,  I. 

See  also  infra,  825,  927,  928. 

754.  A  statute  providing  for  the  prohibi- 
tion of  the  sale  of  intoxicating  liquors  in 
any  county  by  vote  of  the  electors  does 
not  violate  the  constitutional  provision  as  to 
due  process  of  law.  Territory  ex  rel.  Mc 
Mahon  v.  O'Connor,  5  L)ak.  397,  41  N.  W. 
746,  3:  355 

755.  A  statute  prohibiting  the  sale  of  in- 
toxicating liquors  by  any  private  individual, 
and  vesting  in  the  state  the  exclusive  right 
to  manufacture  and  sell  such  liquors,  vio- 
lates the  provisions  of  S.  C.  Const,  art.  1, 
§§  1,  14,  guaranteeing  all  men  the  right  of 
"acquiring,  possessing,  and  protecting  prop- 
erty," and  providing  that  no  person  shall 
be  "despoiled  or  dispossessed  of  his  proper- 
ty, immunities,  or  privileges  ...  or  de- 
prived of  his  life,  liberty,  or  estate,  but  by 
the  judgment  of  his  peers  or  the  law  of  the 
land."  McCuUough  v.  Brown,  41  S.  C.  220, 
19  S.  E.  458,  23:  410 

756.  A  municipal  regulation  that  cider 
shall  not  be  sold  in  less  quantities  than  one 
gallon,  and  shall  not  be  drunk  at  the  place 
of  sale,  violates  no  private  right,  and  does 
not  unreasonably  or  improperly  restrain 
trade,  although  it  is  not  limited  to  the  sale 
nf  cider  which  is  intoxicating.  Lawrence  •v. 
Monroe.   44   Kan.   607,   24   Pac.   1113, 

10:  520 


614 


CONSTITUTIONAL  LAW,  II.  b.  5. 


757.  Conferring  power  upon  a  municipal 
corporation  to  require  licenses  for  the  sale 
of  intoxicating  liquors,  within  4  miles  of 
its  corporate  limits,  does  not  deprive  citi- 
zens of  their  constitutional  property  rights, 
or  of  the  privileges  and  immunities  protect- 
ed by  the  Federal  Constitution.  Jourdan 
V.  Evansville,  163  Ind.  512,  72  N.  E.  544, 

67:613 
Itinerant  venders;  merchants. 
Equal  Protection  and  Privileges  as  to,   see 

supra,  471-485. 
Police  Power  as  to,  see  infra,  1023,  1024. 

758.  The  individual  liberty  of  the  citizen 
is  not  invaded,  in  violation  of  his  constitu- 
tional rights,  by  a  statute  taxing  venders  of 
merchandise  according  to  the  amount  of 
their  annual  sales.  Knisely  v.  Cotterel,  196 
Pa.  614,  40  Atl.  861,  50:  86 

759.  Requiring  itinerant  venders  to  de- 
posit $500  with  the  state  treasurer  to  be 
returned  on  the  surrender  of  the  license,  less 
the  amount  of  any  fines  and  costs  that  may 
have  been  imposed,  does  not  deprive  the  li- 
censee of  property  without  due  process  of 
law.  State  v.  Harrington,  68  Vt.  622,  35 
Atl.  515,  34:  100 

760.  A  statute  forbidding  the  purchase 
of  a  stock  of  goods  in  bulk  without  ascer- 
taining the  seller's  creditors,  and  having 
their  claims  settled,  does  not  deprive  the 
seller  of  his  property  without  due  process 
of  law,  and  is  not  void  as  class  legislation; 
nor  is  it  in  restraint  of  trade.  McDaniels 
v.  J.  J.  Connelly  Shoe  Co.  30  Wash.  549,  71 
Pac.  37,  "  60:  947 

761.  A  statute  prohibiting,  under  penal- 
ty, a  solvent  merchant  from  disposing  of 
his  stock  of  goods  in  bulk  without  notify- 
ing his  creditors,  and  which  is  applicable, 
also,  to  persons  acting  in  a  fiduciary  capac- 
ity and  under  judicial  process,  when  mer- 
chants who  are  not  indebted  have  that  priv- 
ilege, unconstitutionally  deprives  him  of  his 
liberty  and  property.  Block  v.  Schwartz, 
27  Utah,  387,  76  Pac.  22,  65:  308 
Trading  stamps. 

See  also  License,  87,  88. 

762.  A  statute  which  prohibits  a  person 
who  sells  an  article  from  giving  to  the  pur- 
chaser as  part  of  the  same  transaction  a 
stamp,  coupon,  or  other  device  which  will 
entitle  him  to  receive  from  a  third  person 
some  other  well  defined  article  in  addition 
to  the  one  sold,  is  an  unwarrantable  inter- 
ference with  individual  liberty  guaranteed 
by  R.  I.  Const,  art.  1,  §  10,  and  U.  S.  Const. 
14th  Amend.  §  1.  State  v.  Dalton,  22  R.  I, 
77,  46  AtL  234,  48:  775 

5.  As  to  Use  or  Enjoyment  of  Property. 

See   also   supra,    352,   634;    infra,   929,   930, 
1063,  1141. 

As  to  highway. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  322-.125. 
Police  Power  as  to,  see  infra,  960-966. 
See  also  supra.  325. 

763.  An  ordinance  declaring  a  portion  of 
an  avenue  to  be  a  boulevard,  on  which  the 
houses  shall  be  used  only  for  rosidences,  is 


an  unconstitutional  invasion  of  the  right  of 
private  ownership  of  property.  [Per  Gantt, 
C.  J.,  and  Robinson  &  Brace,  JJ.]  St.  Louis 
V.  Dorr,  145  Mo.  466,  46  S.  W.  976,      42:  086 

764.  The  conversion  of  a  public  highway 
into  a  pleasure  driveway  from  which  loaded 
vehicles  are  excluded  does  not  deprive  citi- 
zens desiring  to  transport  loads  over  it  of 
their  property  without  due  process  of  law, 
or  take  their  private  property  for  public  use 
without  compensation.  Cicero  Lumber  Co. 
V.  Cicero,  176  111.  9,  51  N.  E.  758,        42:  696 

765.  An  ordinance  making  it  unlawful  to 
beat  a  drum  upon  any  traveled  street  with- 
out special  permit  from  the  president  of  the 
board  of  trustees,  which  he  may  grant  when- 
ever in  his  judgment  it  shall  not  conflict 
with  the  purposes  of  the  ordinance,  is  not 
an  unconstitutional  denial  of  individual 
rights.  Re  Flaherty,  105  Cal.  558,  38  Pac. 
981,  27:529 

766.  Requiring  a  railroad  company  to 
change  the  grade  of  its  tracks  so  as  to  con- 
form to  that  of  streets  crossing  it,  for  the 
purpose  of  correcting  a  situation  dangerous 
to  the  life  of  persons  attempting  to  use  the 
street,  is  not  a  taking  or  damaging  of  its 
property  without  due  process  of  law;  nor 
is  it  an  injury  for  which  compensation  must 
be  made.  Houston  &  T.  C.  R.  Co.  v.  Dallas, 
98  Tex.  396,  84  S.  W.  648,  70:  850 
Flags. 

Equal  Privileges  as  to,  see  supra,  451. 
Police  Power  as  to,  see  infra,  1007. 

767.  A  statute  providing  for  punishment 
of  persons  placing  words,  figures,  or  designs 
on  the  national  or  state  flag  for  advertising 
or  other  purposes,  or  using  or  displaying  a 
flag  so  decorated,  which  intends  to  prevent 
the  use  of  flags  already  decorated  as  well  as 
those  to  be  decorated  in  the  future,  is  void 
as  depriving  persons  owning  flags  so  deco- 
rated of  their  property  without  due  process 
of  law.  People  ex  rel.  McPike  v.  Van  De 
Carr,  178  N.  Y.  425,  70  N.  E.  965,  66:  189 
Trademarks. 

Equal  Protection  as  to,  see  supra,  337-340. 

768.  A  statute  providing  for  the  registra- 
tion and  protection  of  trademarks,  which  at- 
tempts to  empower  the  party  injured  by  a 
violation  of  the  statute  to  fix,  within  limits 
prescribed,  the  amount  of  the  penalty 
which,  in  addition  to  full  compensation  for 
the  injury  suffered,  shall  be  exacted  from 
the  offender  for  the  use  and  benefit  of  the 
injured  party,  is  unconstitutional,  since  this 
would  deprive  the  offender  of  his  property 
without  due  process  of  law.  Cigar  Makers' 
International  Union  v.  Goldberg  (N.  J.  Err. 
&  App.),  70  N.  J.  L.  214,  61  AtL  457,  70:  156 
Animals;  fish;  game. 

Police  Power  as  to,  see  infra,  973-985. 
See  also  supra,  687,  750;  infra,  907-914. 

769.  The  owner  of  hogs  is  not  deprived  of 
his  property  without  due  process  of  law  by 
making  it  unlawful  to  permit  them  to  run 
at  large.  Haigh  v.  Bell,  41  W.  Va.  19,  23  vS. 
E.  666,  31:  131 

770.  A  classification  of  counties  according 
to  the  Federal  census  of  1890,  in  a  statute 
prohibiting  live  stock  to  run  at  large  in 
counties   having  a   specified   population   ac- 


CONSTlTUTiUNAL  LAW,  II.  b.  5. 


615 


cording  to  that  census,  without  any  pro- 
vision as  to  their  present  or  actual  popula- 
tion, is  in  violation  of  Tenn.  Const,  art.  1, 
§  8,  respecting  deprivation  of  property  with- 
out "the  law  of  the  land,"' and  art.  11,  § 
8,  prohibiting  laws  granting  to  any  individ- 
uals rights,  privileges,  immunities,  or  ex- 
emptions other  than  the  same  law  extends 
to  anyone  who  may  be  able  to  bring  him- 
self within  its  provisions.  Sutton  v.  State, 
96  Tenn.  696,  36  S.  W.  697,  33:  589 

771.  The  owner  of  land  is  not  deprived  of 
the  inherent  right  to  "the  means  of  acquir- 
ing and  possessing  property,"  or  of  the 
constitutional  guaranty  against  taking  his 
property  for  public  uses  without  just  com- 
pensation, by  a  statute  denying  him  any 
recovery  for  trespass  on  his  lands  by  ani- 
mals, unless  he  has  enclosed  the«  premises 
by  a  lawful  fence.  May  v.  Poindexter,  98 
Va.  143,  34  S.  E.  971,  47:  588 

772.  The  private  rights  of  property  of  the 
owners  of  animals  are  not  infringed  by  an 
ordinance  requiring  that  the  animals  shall 
not  be  cruelly  treated  in  the  public  places 
of  a  city.  State  v.  Karstendiek,  49  La.  Ann. 
1621,22  So.  845,  39:  520 

773.  A  statute  making  it  unlawful  to  con- 
sign any  elk,  moose,  caribou,  or  deer,  or 
any  part  thereof  except  the  head  or  skin  by 
a  common  carrier  to  any  commission  mer- 
chant or  sale  market  at  any  time,  is  not  an 
unconstitutional  deprivation  of  property 
without  due  process  of  law,  since  wild  game 
before  it  is  reduced  to  possession  belongs 
to  the  state  in  trust  for  the  whole  public, 
and  any  right  of  property  acquired  therein 
is  from  its  inception  subject  to  all  limita- 
tions imposed  by  police  laws.  State  ex  rel. 
Corcoran  v.  Chapel,  64  Minn.  130,  66  N.  W. 
205,  32:  131 

774.  The  prohibition  of  the  possession  of 
quail  during  the  closed  season,  made  by 
Burns's  (Ind.)  Rev.  Stat.  1894,  §  2209  (Hor- 
ner's Rev.  Stat.  §  2106),  which  declares  it 
unlawful  to  shoot,  destroy,  or  have  in  pos- 
session any  quail  between  January  1  and 
November  10  of  any  year,  is  not  in  viola- 
tion of  U.  S.  Const.  14th  Amend.,  forbidding 
the  taking  of  property  without  due  process 
of  law,  or  of  Ind.  Const,  art.  1,  §  21,  pro- 
viding that  no  man's  property  shall  be  tak- 
en without  just  compensation,  even  as  to 
persons  in  possession  of  quail  in  the  closed 
season  which  were  acquired  during  the  open 
season,  but  is  a  legitimate  exercise  of  the 
power  of  the  legislature  to  protect  game. 
Smith  V.  State,  155  Ind.  611,  58  N.  E.  1044, 

61 :  404 

775.  A  state  cannot  forbid  a  nonresident 
landowner  to  take  fish  and  game  upon  his 
property  within  the  state  while  according 
such  privilege  to  resident  landowners,  in 
view  of  the  provisions  of  the  Federal  Con- 
stitution forbidding  denial  of  the  equal  pro- 
tection of  laws,  and  the  deprivation  of  prop- 
erty without  due  process  of  law.  State  v. 
Mallory,  73  Ark.  236,  83  S.  W.  955,   67:  773 

776.  No  unconstitutional  deprivation  of 
property  is  effected  by  a  statute  forbiddinsr 
the  iise   of   horses    whose   tails   are   docked 


after  its  passage.    Bland  v.  People,  32  Colo. 
319,   76   Pac.   359,  65:  424 

777.  The  owner  of  a  dead  animal  before 
it  has  become  a  nuisance  has  property  rights 
in  it  of  which  he  cannot  be  deprived  with- 
out compensation,  although  the  authorities 
may  require  its  removal  within  a  reasonable 
time  before  it  actually  becomes  a  nuisance. 
Schoen  v.  Atlanta,  97  Ga.  697,  25  S.  E.  380, 

33:804 
Transfer  of  property. 
As  to  Regulation  of  Sales,  see  supra,  11.  h, 

4,  d. 
As  to  Mortgages,  see  supra,  696,  697. 
See  also  infra,  897-900. 

778.  The  right  to  transfer  property  in 
payment  of  a  debt  when  solvent  is  within 
the  constitutional  protection  of  property 
rights,  and  is  valid  by  Tennessee  Acts  1895, 
chap.  128,  declaring  that  every  transfer  of 
property  to  prefer  creditors  or  which  "would 
have  that  effect"  shall  be  void  without  lim- 
iting it  to  cases  of  insolvency.  Third  Nat. 
Bank  v.  Divine  Grocery  Co.  97  Tenn.  603. 
37  S.  W.  390,  34:445 

779.  The  legislature  cannot  empower  the 
court,  in  its  discretion,  to  authorize  a  mar- 
ried woma-n  to  convey  her  real  estate  by 
separate  deed,  in  jurisdictions  where  the 
common  law,  giving  the  husband  a  free- 
hold right  in  the  property,  is  in  force,  since 
it  would  deprive  him  of  his  property  with- 
out due  process  of  law.  Hubbard  v.  Hub- 
bard, 77  Vt.  73,  58  Atl.  969,  67 :  969 

780.  The  limitation  on  the  right  of  a  hus- 
band to  make  gifts  of  community  property 
or  convey  it  without  consideration,  made  by 
Cal.  act  March  31,  1891,  amending  Cal.  Civ. 
Code,  §  172,  by  requiring  the  wife's  written 
consent  in  such  cases,  cannot  apply  to  com- 
munity property  acquired  before  the  passage 
of  the  act,  as  the  husband's  right  in  that 
property  cannot  be  devested  by  statute. 
Spreckels  v.  Spreckels,  116  Cal.  339,  48  Pac. 
228,  36:  497 

7'81.  The  right  to  transmit  property  by 
inheritance  to  one's  descendants  or  next  of 
kin  is  "property,"  within  the  meaning  of 
the  constitutional  provision  that  a  person 
shall  not  be  deprived  of  property  except  by 
judgment  of  his  peers  or  of  the  law  of  the 
land.  Dibrell  v.  Lanier,  89  Tenn.  497,  15  S. 
W.  87,  12:  70 

782.  A  statute  providing  that  the  personal 
estate  of  an  intestate  lunatic,  if  derived 
from  an  intestate  husband  or  wife,  shall  go 
to  the  latter's  next  of  kin,  is  unconstitution- 
al because  the  classification  of  persons  there- 
by made  is  unnatural,  arbitrary,  and  capri- 
cious, in  consequence  of  which  the  statute 
is  not  a  "law  of  the  land"  within  the  mean- 
ing of  the  Constitution.  Id. 
Preventing  waste  of  natural  gas. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  342. 

783.  A  statute  making  it  unlawful  to  per- 
mit the  escape  of  natural  gas  into  the  open 
air  from  a  well  for  longer  than  two  days 
after  it  is  constructed  is  not  unconstitution- 
al. State  v.  Ohio  Oil  Co.  150  Ind.  21,  49  N. 
E.  809,  47 :  027 

784.  Constitutional  guaranties  of  life,  lib- 


616 


CONSTITUTIONAL  LAW,  II.  b.  6,  7. 


erty,  and  the  pursuit  of  happiness  are  not 
infringed  by  a  statute  which  prohibits  the 
burning  of  natural  gas  for  illuminating 
purposes  in  flambeau  lights.  Townsend  v. 
State,  147  Ind.  624,  47  N,  E.  19,         37:  294 

785.  A  person  is  not  deprived  of  the  full 
and  free  use  of  his  property  by  a  statute 
exercising  the  police  power  of  the  state, 
which  restrains  him  from  using  natural  gas 
to  the  injury  of  others  or  to  the  injury  of 
the  public  by  burning  flambeau  lights.     Id. 

6.  As  to  Rights  in  Office. 

Equal  Protection  as  to,  see  supra,  330-334. 
See  also  supra,  636-637. 

786.  A  determination  against  the  claim 
of  a  right  to  an  office  is  not  a  deprivation 
of  life,  liberty,  or  property  within  the  pro- 
vision of  U.  S.  Const.  14th  Amend.,  as  to 
due  process  of  law.  Taylor  v.  Beckham,  108 
Ky.  278,  56  S.  W.  177,  49:  258 

787.  A  provision  in  a  statute  which  es- 
tablishes an  appointive  state  board  of  com- 
missioners to  consist  of  three  members, 
that  not  more  than  two  members  shall  be 
adherents  of  the  same  political  party,  is 
not  violative  of  a  constitutional  provision 
that  no  person  shall  be  deprived  of  life,  lib- 
erty, or  property  without  due  process  of 
law,  even  when  giving  the  word  "liberty" 
a  definition  wide  enough  to  include  the  right 
to  be  eligible  to  hold  office,  and  considering 
that  after  two  members  of  the  commission 
have  been  appointed  from  one  political  par- 
ty all  other  members  of  the  same  party  are 
ineligible  to  the  vacant  commissionership. 
Rogers  v.  BufiFalo,  123  N.  Y.  173,  25  N.  E. 
274,  9:  579 

788.  The  fact  that  a  statute  authorizing 
the  appointment  of  a  state  board  of  commis- 
sioners to  consist  of  three  members  provides 
that  not  more  than  two  of  them  shall  be  ad- 
herents of  the  same  political  party  does  not 
render  it  void  under  a  constitutional  pro- 
vision which  declares  that  "no  member  of 
this  state  shall  be  disfranchised  or  deprived 
of  any  of  the  rights  or  privileges  secured 
to  any  citizen  thereof,  unless  by  the  law  of 
the  liuid  or  the  judgment  of  his  peers."  not- 
withstanding that  after  two  commissioners 
have  been  appointed  from  one  party  all  oth- 
er members  of  that  party  are  ineligible  to 
the  vacant  commissionership.  Id. 
Removal  from  office. 

789.  Due  process  of  law  in  respect  to  the 
removal  of  an  officer  does  not  mean  a  trial 
by  a  constitutional  judiciary,  but  is  fur- 
nished by  the  governor's  investigation  au- 
thorized by  a  state  Constitution,  although  he 
is  given  the  power  not  only  to  decide  on 
the  removal,  but  to  present  the  charges  and 
employ  counsel  in  the  investigation.  Atty. 
Gen.  ex  rel.  Rich  v.  .Tochim.  99  Mich.  3.>8. 
58  N.  W.  611,  23:  699 

7.  Remedies  and  Procedure. 

a.  In   General. 

Equal  Protection  and  Privileges  as  to,  sec 

supra,  II.  a,  7. 
Denial    of    Continuance    on    Admission,    see 

Continuance  and  Adjournment.  20,  22. 


Staying  Second  Ejectment  Suit  Till  Costs 
of  Former  Suit  Paid,  see  Costs  and 
Fees,  55. 

Private  Session  of  County  Board  of  Rev- 
enue, see  Counties,  87. 

See  also  supra,  334,  597,  633,  744,  745. 

For  Editorial  Notes,  see  infra,  III.  §  8. 

790.  "Remedy  by  One  course  of  law,"  as 
used  in  the  Kansas  Bill  of  Rights,  §  18, 
means  the  reparation  for  injury,  ordered  by 
a  tribunal  having  jurisdiction,  in  due  course 
of  procedure,  after  a  fair  hearing.  Hanson 
V.  Krehbiel,  68  Kan.  670,  75  Pac.  1041, 

64:790 

791.  Deprivation  of  a  remedy  is  equiva- 
lent to  the  deprivation  of  the  right  wliich 
it  is  intended  to  vindicate,  unless  another 
remedy  exists  or  is  substituted  for  that 
which  is  taken  away.  Normal  School  Dist. 
Bd.  of  Edu.  V.  Blodgett.  155  111.  441,  40  N. 
E.    1025,  31:  70 

792.  The  right  to  a  remedy  by  due  course 
of  law  is  not  satisfied  by  the  requirement 
contained  in  a  statute  to  make  specific  rep- 
aration for  the  injury  done,  which  repara- 
tion is  the  same  in  all  cases,  and  bears  no 
relation  to  the  injury  suffered,  and  has  not 
been  decreed  by  a  tribunal  after  ascertain- 
ment of  the  extent  of  such  Injury  Hanson 
V.  Krehbiel,  68  Kan.  670,  75  Pac.  1041, 

64:  790 

793.  Due  process  of  law  is  shown  when  an 
opportunity  is  conferred  to  invoke  the  equal 
protection  of  the  law  by  judicial  proceed- 
ings appropriate  for  the  purpose  and  ade- 
quate to  secure  the  end  and  object  sought 
to  be  attained.  Chicago,  B.  &  Q.  R.  Co.  v. 
State  ex  rel.  Omaha,  47  Neb.  549,  66  N.  W. 
024.  41 :  481 

794.  The  court  cannot  enter  judgment  in 
favor  of  plaintiff  in  an  action  for  the  re- 
covery of  real  estate  of  which  defendant  is 
in  possession,  because  of  defendant's  non- 
compliance with  a  rule  of  coart  requiring 
him  to  deposit  one  half  the  reporter's  per 
diem  before  proceeding  to  trial,  since  it  de- 
prives him  of  his  property  without  due 
process  of  law.  Meacham  v.  Bear  Valley 
Irrig.  Co.  145  Cal.  606,  79  Pac.  281,     68:  600 

795.  The  question  whether  or  not  milk 
which  is  daily  offered  for  sale  in  every  part 
of  a  large  and  populous  city  comes  up  to 
the  prescribed  standard,  for  the  purpose  of 
confiscating  and  destroying  that  which  is 
condemned,  may  be  determined  otherwise 
than  by  ordinary  process  of  judicial  investi- 
gation or  by  chemical  analysis,  without  vio- 
lating the  constitutional  provision  as  to  due 
process  of  law.  Deems  v.  Baltimore,  80  Md. 
164,  30  Atl.   648,  26:  541 

796.  Allowing  an  injunction  without  a 
bond  to  prevent  the  use  of  property  in  vio- 
lation of  a  statute  does  not  deprive  the  own- 
er of  his  property  without  due  process  of 
law.  State  ex  rol.  Duensing  v.  Robv,  142 
Ind.  168.  41  N.  E.  145,  33:  213 
In  contempt  proceeding. 

797.  Comrtiitment  for  contempt  in  refus- 
ing to  make  a  disclosure  as  required  by  law 
is  not  a  deprivation  of  liberty  without  due 


CONSTITUTIONAL  LAW.  II,  b,  7. 


617 


process  of  law.     Re  Clayton,  59  Conn.  510, 
21    Atl.    1005,  13:  66 

798.  Refusal  to  permit  a  man  charged 
with  contempt  by  publications  respecting 
evidence  in  a  judicial  trial,  to  show  in  de- 
fense that  the  publications  were  true,  and 
for  this  purpose  to  disprove  the  accuracy 
of  the  reporter's  notes  which  have  been  of- 
fered against  him,  is  such  a  deprivation  of 
his  constitutional  right  to  make  a  defense 
as  to  be  a  denial  of  due  process  of  law. 
McClatchy  v.  Sacramento  County  Super.  Ct. 
119  Cal.  413,  51  Pac.  696,  39:  691 

799.  Due  process  in  the  imprisonment  of 
a  witness  for  refusal  to  answer  a  proper 
question  on  an  investigation  by  grand  jurors 
does  not  require  a  regular  trial  and  judg- 
ment, but  is  complied  with  by  the  issue  of  a 
writ,  on  complaint  of  the  grand  ^rors,  to  a 
justice  of  the  peace  as  provided  in  Conn. 
Gen.  Stat.  §  91.  Re  Clark,  66  Conn.  17,  31 
Atl.  522,  28:  242 
Mode  of  serving  process. 

Delegation  of  Power  to  Courts  to  Determine, 

see  supra,  183. 
See  also  sunra,  592,  infra,  863,  864. 
For  Editorial  Notes,  see  infra.  III.  §  8. 

800.  In  an  action  in  personam  of  a  strict- 
ly judicial  character,  and  proceeding  accord- 
ing to  the  course  of  the  common  law,  serv- 
ice of  summons  by  publication  in  a  news- 
paper, upon  resident  defendants  who  are 
personally  within  the  state  and  can  be  found 
therein,  is  not  "due  process  of  law."  Bard- 
well  v.  Anderson,  44  Minn.  97,  46  N.  W. 
315,  9:  152 

801.  Jurisdiction  of  a  proceeding  in  rem 
acquired  by  virtue  of  the  power  of  the 
court  over  the  res.  without  personal  service 
on  claimants  within  the  state  or  notice  by 
name  to  those  outside  of  it,  is  not  violation 
of  constitutional  provisions  for  due  process 
of  law.  Tyler  v.  Judges  of  Court  of  Regis- 
tration, 175  Mass.  71,  55  N.  E.  812,      51:  433 

802.  A  statute  authorizing  service  of  sum- 
mons on  corporations  which  neglect  to  file 
lists  of  the  names  of  officers  on  whom 
process  may  be  served,  by  leaving  copies 
with  the  register  of  deeds  where  the  cor- 
poration has  its  principal  office,  is  invalid  as 
not  providing  due  process  of  law.  Pinney 
V.  Providence  Loan  &  I.  Co.  106  Wis.  396, 
82  N.  W.  30S,  50:  577 

803.  A  statute  authorizing  service  of  proc- 
ess on  an  agent  of  a  foreign  corporation, 
"no  matter  what  character  of  agent  such 
person  may  be."  if  the  corporation  has  any 
transaction  with  any  person  or  concerning 
any  property  in  the  state  through  any 
agency  whatever  within  the  state,  is  not 
unconstitutional  as  authorizing  judgment 
without  due  process  of  law,  at  least  when 
the  service  is  on  an  agent  who  may  be  rea- 
sonably presumed  to  give  notice  thereof  to 
the  corporation.  Connecticut  Mut.  L.  In?. 
Co.  V.  Spratley,  99  Tenn.  322,  42  S.  W.  145, 

44:  442 

804.  The  provision  of  Minn.  Gen.  Laws 
1894,  §  399,  authorizing  the  courts  to  di- 
rect the  manner  in  which  service  shall  be 
made  on  the  agents  or  servants  of  a  com- 
mon carrier  of  a  notice  of  a  hearing  of  an 


accusation  that  it  refuses  or  neglects  to 
obey  a  lawful  order  of  the  railroad  and 
warehouse  commission,  is  not  objectionable 
as  an  attempt  to  obtain  jurisdiction  O'ver 
the  carrier  without  due  process  of  law. 
State  ex  rel.  Railroad  &  W.  Commission  v. 
Adams  Exp.  Co.  66  Minn.  271,  68  N.  W. 
1085,  38:225 

As  to  jury. 

Equal  Protection  and  Privileges  aa  to,  see 
supra,  594-597. 

805.  The  constitutional  provision  that 
every  person  ought  to  obtain  justice  freely 
and  without  purchase  is  not  violated  by  a 
statute  providing  for  a  struck  jury  on  de- 
mand of  either  party,  but  on  condition  of 
his  payment  of  the  fees  and  expenses,  with- 
out any  allowance  therefor  in  the  taxation 
of  costs.  Lommen  v.  Minneapolis  Gaslight 
Co.  65  Minn.  196,  68  N.  W.  53,  33:  437 

806.  A  statute  authorizing  a  court  to  de- 
clare a  turnpike  road  abandoned  and  vacated 
as  a  toll  road,  and  tnereby  a  free  road,  on 
the  ground  that  it  had  been  out  of  repair 
for  the  preceding  six  months,  without  the 
intervention  of  a  jury  or  the  right  of  appeal 
whereby  the  question  of  its  being  out  of  re- 
pair for  six  months  could  be  determined  by 
a  jury,  is  in  conflict  with  constitutional 
guaranties  of  a  remedy  by  due  course  of 
law  and  against  deprivation  of  property 
without  due  process  of  law.  Salt  Creek 
Valley  Tump.  Co.  v.  Parks,  50  Ohio  St.  .>68, 
35  N.  E.  304,  28:  76* 

807.  "Due  process  of  law"  guaranteed  by 
Utah  Const,  art.  1,  §  7,  is  not  infringed  by 
§  10  of  the  same  aiticle,  declaring  that  in 
courts  of  general  jurisdiction,  except  in  cap- 
ital cases,  a  jury  shall  consist  of  eight 
jurors.  State  v.  Bates,  14  Utah,  293.  47 
Pac.  78,  43 :  33 

808.  Due  process  of  law  within  U.  S. 
Const.  14th  Amend.  §  1,  declaring  that  no 
state  shall  deprive  any  person  of  life,  lib- 
erty, or  property  without  due  process  of 
law,  is  not  denied  by  Utah  Const,  art.  1,  § 
10,  providing  that  in  courts  of  general  juris- 
diction, except  in  capital  cases,  a  jury  shall 
consist   of   eight   jurors.  Id. 

809.  Due  process  of  law  is  not  denied  by 
requiring  the  jury  in  a  criminal  case  to  be 
onmposed  of  persons  taken  from  the  body 
selectea  by  a  special  commissioner  of  jurors 
from  the  general  list.  People  v.  Dunn,  157 
X.  Y.  528.  52  N.  E.  572,  43:247 

810.  "Due  process  of  law"  does  not  re- 
quire that  all  grand  juries  finding  indict- 
ments for  felonies  shall  be  organized  as  at 
common  law  and  with  the  same  number  of 
jurors.  Parker  v.  People,  13  Colo.  155,  21 
Pac.  1120.  4:  803 
As  to  appeal. 

Provision  for,  in  Drainage  Statute,  see 
Drains  and  Sewers,   14. 

In  Eminent  Domain  Case,  see  Eminent  Do- 
main, 199. 

See  also,  infra,  806,  868. 

811.  Giving  an  appeal  from  the  decisions 
of  drainage  commissioners  in  classifying 
lands  for  assessment,  and  fixing  amounts  of 
damages  and  benefits  as  well  as  on  every 
other  question  except  that  of  necessity  for 


«18 


CONSTITUTIONAL  LAW,  IL  b.  7, 


drainage,  provides  due  process  of  law.  State, 
ex  rel.  Baltzell  v.  Stewart,  74  Wis.  620,  43 
N.  W.  947,  6:  394 

812.  A  provision  that  a  judgment  shall 
not  be  reversed  for  error  in  the  charge  of 
the  court,  unless  such  error  is  excepted  to 
by  bill  or  on  motion  for  new  trial,  in  Tex. 
Code  Crim.  Proc.  §  723,  is  not  unconstitu- 
tional, since  it  affects  no  vested  right,  but 
regulates  the  remedv  merely.  Johnson  v. 
State,  42  Tex.  Crim.  Rep.  87,  58  S.  W.  60, 

51:272 
Filing  new  opinion. 

813.  The  constitutional  provision  as  to 
due  process  of  law  is  not  violated  by  filing 
a  new  and  fuller  opinion  after  the  cause  has 
been  remanded  to  a  lower  court.  Adams  v. 
Yazoo  &  M.  V.  R.  Co.  77  Miss.  194,  24  So. 
200,  317,  28  So.  956,  60:  33 
As  to  lien. 

Notice  and  Hearing  as  to,  see  infra,  877- 

880. 
As  to  Amendment  of  Lien  Statement,  see 

Mechanics'  Liens,  117. 

814.  A  statute  making  an  employer's  sam- 
ples liable  to  a  lien  for  hotel  bills  of  his 
traveling  salesman  in  whose  possession  they 
are  does  not  deprive  him  of  his  property 
without  due  process  of  law.  Brown  Shoe 
Co.  V.  Hunt,  103  Iowa,  586,  72  N.  W.  765, 

39:  291 

815.  A  statute  giving  a  mechanics'  lien 
precedence  over  all  other  encumbrances 
created  before  or  after  such  lien  is  unconsti- 
tutional as  taking  a  man's  property  away 
without  his  consent  and  without  process  of 
law.  Meyer  v.  Berlandi,  39  Minn.  438,  40 
N.   W.   5  is,  1:777 

816.  A  statute  making  a  contract  for  the 
construction  of  a  building,  in  which  the 
contract  price  is  payable  with  something  be- 
sides money,  so  far  invalid  as  to  furnish 
the  owner  no  protection  from  the  claims  of 
subcontractors  and  material  men,  is  an  un- 
constitutional infringement  of  the  owner's 
right  to  the  possession  and  enjoyment  of 
his  property.  Stimson  Mill  Co.  v.  Braun,  136 
Cal.  122,  68  Pac.  481,  57:726 

817.  An  owner  of  property  who  has  made 
and  filed  a  valid  contract  for  the  placing  of 
a  building  thereon,  under  which,  by  the 
terms  of  the  statute,  the  entire  contract 
price  may  be  applied  to  the  claims  of  labor- 
ers and  material  men,  cannot  constitution- 
ally be  required  to  furnish  a  bond  which 
will  make  him  liable  to  them  in  an  addition- 
al amount  in  case  their  claims  are  not  satis- 
fied by  the  contractor.  Gibbs  v.  Tally,  133 
Cal.  373,  65  Pac.  970,  60:  815 

818.  A  purchaser  of  property  upon  which 
a  log  lien  is  claimed  is  deprived  of  the  prop- 
erty without  due  process  of  law  by  a  stat- 
ute making  him  personally  liable  for  the 
full  amount  of  the  claim,  if  a  petition  for 
lien  is  duly  filed,  proceedings  to  enforce  it 
are  begun  in  time,  and  the  property  has 
been  so  changed  that  the  lien  cannot  be  en- 
forced against  it.  Rogers-Ruger  Co.  v.  Mur- 
ray, 115  Wis.  2G7,  91  N.  W.  657,        59:  737 


As  to  insane  persons. 

Notice  and  Hearing  as  to,  see  infra,  874- 
876. 

819.  An  order  by  a  judge  for  the  tempo- 
rary confinement  of  a  person  alleged  to  bo 
insane,  pending  proceedings  for  the  deter- 
mination of  that  question,  is  not  a  denial  of 
due  process  of  law  when  made  on  a  written 
complaint  and  aflRdavit  to  the  fact  of  insan- 
ity, but  it  is  clearly  within  the  police  power 
of  the  state,  and  is  for  the  restraint  of  a 
dangerous  person  in  an  emergency.  Porter 
V.  Ritch,  70  Conn.  235,  39  Atl.  169, 

39:  353 

820.  R.  L  Pub.  Stat.  chap.  74,  §§  11,  12, 
authorizing  the  confinement  of  insane  per- 
sons upon  a  certificate  from  two  practising 
physicians,  etc.,  violates  the  provision  of  U. 
S.  Const.  Amend.  14,  that  no  state  shall  de- 
prive any  person  of  life,  liberty,  or  property 
without  due  process  of  law.  Re  Gannon,  16 
R.  L  537,  18  Atl.  159,  5:  359 

821.  The  refusal  by  a  judge  of  the  supe- 
rior court  at  the  time  when  judgment  is  to 
be  entered  or  after  it  has  been  entered  in  a 
capital  case,  to  allow  or  order  a  judicial  in- 
vestigation concerning  the  mental  condition 
of  the  accused,  either  with  or  without  the 
aid  of  a  jury,  is  not  a  denial  of  due  process 
of  law,  as  the  provisions  of  Ga.  Pen.  Code, 
§  1047,  relating  to  inquisitions  in  such  mat- 
ters, are  suflHciently  comprehensive  to  cover 
all  cases  of  alleged  insanity  beginning  after 
the  rendition  of  the  verdict.  Baughn  v. 
State,  100  Ga.  554,  28  S.  E.  68,  38:  577 
Criminal  matters. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  593,  595,  601. 
Matters  as  to  Procedure  on  Criminal  Trial 

Generally,  see  Criminal  Law,  II. 
Right   to   Public   Trial,  see   Criminal  Law, 

88-90. 
Right  to  Speedy  Trial,  see  Criminal  Law, 

90-92. 
Right  of  Accused  to  be  Present,  see  Crim- 
inal Law,  93,  94. 
Right  to  Meet  Witnesses,  see  Criminal  Law, 

96,  97. 
As  to   Self-Crimination,  see  Criminal  Law, 

87,  98-102;  Witnesses,  II.  c. 
Necessity    of    Indictment    or    Information, 

see  CYiminal  Law,  II.  d. 
Former  Jeopardy,  see  Criminal  Law,  II.  g. 
Requisites    of    Indictment,    see    Indictment, 

etc.,  50,  89. 
See  also  supra,  807-810,  821 ;  infra,  920-923. 
For  Editorial  Notes,  see  infra,  III.  §  8. 

822.  The  constitutional  requirement  of 
due  process  of  law  is  not  violated  by  a  stat- 
ute extending  the  right  to  arrest  without 
warrant  for  crime  committed  in  presence  of 
an  officer,  to  offenses  for  which  such  arrest 
was  not  authorized  when  the  Constitution 
was  adopted.  Burroughs  v.  Eastman,  101 
Mich.  419,  59  N.  W.  817,  24:859 

823.  An  ordinance  providing  that  a  person 
may  be  arrested  and  taken,  without  warrant 
or  hearing,  to  the  station  house  because  he 
refuses  to  "move  on,"  and,  in  the  opinion  of 
an  officer,  "unreasonably  persist*  in  remain- 

j  ing  so  as  to  incommode  others  passing,"  vio- 
lates a  constitutional  provision  that  "no  per- 


CONSTITUTIONAL  LAW,  II.  b,  7. 


619 


son  shall  be  taken,  imprisoned,  ...  or 
in  any  manner  deprived  of  his  life,  liberty, 
or  property,  but  by  the  law  of  the  land." 
State  V.  Hunter,  106  N.  C.  796,  11  S.  E.  SOfi, 

8:  529 

824.  The  disclosure  by  physicians  of 
knowledge  obtained  as  to  the  condition, 
with  reference  to  venereal  disease,  of  a  pris- 
oner whom  they  examined  against  his  will 
upon  his  trial  for  rape,  is  prohibited  by  a 
constitutional  provision  that  no  person  shall 
be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law,  and  securing 
persons  against  unreasonable  searches.  State 
V.  Height,  117  Iowa,  650,  91  N.  W.  935, 

59:  437 

825.  Requiring  a  person  convicted  of  in- 
toxication to  make  a  disclosure  under  oath, 
as  to  when,  where,  how,  and  from\whom  he 
procured  the  intoxicating  liquor,  does  not 
violate  the  constitutional  provisions  as  to 
due  process  of  law,  equal  protection,  or  right 
of  trial  by  jury;  nor  is  it  against  public 
policy.  Re  Clavton,  59  Conn.  510,  21  Atl. 
1005,  ■  13:  66 

6.  As  to  Right  of  Action  or  Defense. 

(1)  Of  Action. 

(a)  In  General. 
Equal  Privileges  as  to,  see  supra,  384,  385. 

826.  The  constitutional  right  to  acquire, 
possess,  and  protect  property  prevents  mak- 
ing a  man  liable  for  the  acts  and  engage- 
ments of  strangers  over  whom  he  has  no 
control.  Durkin  v.  Kingston  Coal  Co.  171 
Pa.  193,  33  Atl.  237,  29:  808 

827.  A  statute  depriving  a  creditor  of  his 
vested  right  of  bringing  an  action  in  another 
state  is  a  deprivation  of  property  without 
due  process  of  law.  Re  Flukes,  157  Mo.  125, 
57  S.  W.  545,  51 :  176 
For  support  of  poor  person. 

828.  The  procedure  under  the  Illinois  pau- 
per's act  (111.  Rev.  Stat.  chap.  107)  to  com- 
pel the  support  of  a  poor  person  by  a  rela- 
tive, in  which  a  complaint  is  filed  in  a 
county  court  and  at  least  ten  days'  notice 
given  to  the  defendant  by  summons,  after 
which  the  court  proceeds  in  a.  ^^ummary  way, 
without  further  written  pleadings,  to  deter- 
mine the  question  of  the  defendant's  liabil- 
ity and  to  make  the  necessary  judgment  and 
orders, — is  not  insufficient  to  constitute  due 
process  of  law.  People  use  of  Peoria  County 
v.  Hill,  1(53  Til.  186,  46  N.  E.  796,        36:  634 

829.  The  inclusion  of  brothers  and  sisters 
in  the  list  of  those  who  are  made  liable  for 
the  support  of  a  poor  person  whose  pauper- 
ism has  not  resulted  from  intemperance  or 
other  bad  conduct,  by  111.  Rev.  Stat.  chap. 
107,  §  1,  is  not  unconstitutional,  but  the 
statute  transforms  an  imperfect  moral  duty 
into  a  statutory  and  legal  liability.  Id. 

830.  The  constitutional  provision  for  due 
process  of  law  is  violated  by  a  statutory 
provision  for  charging  a  town  with  the 
maintenance  of  a  pauper  upon  report  of  a 
commission,  the  members  of  which  are  not 
required  to  take  an  oath,  or  authorized  to 


I  administer  oaths  to  witnesses  appearing  be- 
fore them,  or  to  render  any  judgment  in 
proceedings  brought  before  them,  and  whose 
report  is  acted  upon  by  the  court  without 
independent  investigation.  Church  v.  South 
Kingstown,  22  R.  I.  381,  48  Atl.  3,  53:  739 
By  deserted  wife. 

831.  A  statute  authorizing  a  deserted  wife 
to  prosecute  or  defend  in  the  husband's 
name  any  action  which  he  might  have  pros- 
ecuted or  defended,  and  giving  her  the  same 
powers  and  rights  therein  as  he  might  have 
had,  even  if  it  is  construed  to  give  her  au- 
thority to  collect  debts  due  to  him,  is  not 
unconstitutional  as  depriving  him  of  his 
property  without  due  process  of  law.  Allen 
V.  Minnesota  Loan  &  T.  Co.  68  Minn.  8,  70 
N.  W.  800,  37 :  679 
Against  employer, 

832.  A  statute  holding  a  mine  owner  lia- 
able  for  the  negligence  of  his  manager,  and 
at  the  same  time  forbidding  him  to  em- 
ploy any  person  in  that  capacity  who  has 
not  a  certificate  of  competency  from  the 
state  board  of  examiners,  does  not  uncon- 
stitutionally deprive  him  of  any  rights.  Ful- 
ton V.  Wilmington  Star  Min.  Co.  133  Fed. 
193,  68:  168 

833.  The  imposition  of  liability  on  a  mine 
owner  by  Pa.  act  1891,  art.  17,  for  the  fail- 
ure of  a  certified  foreman,  whom  he  is  com- 
pelled to  employ,  and  with  whose  acts  he 
cannot  interfere,  and  whose  duties  are  pre- 
scribed by  the  act,  to  comply  with  those 
duties,  is  unconstitutional  and  void.  Dur- 
kin V.  Kingston  Coal  Co.  171  Pa.  193,  3.T 
Atl.  237,  29:  808 

834.  A  statute  attempting  to  make  a  cor- 
poration, on  the  discharge  of  an  employee, 
pay  the  whole  amount  of  his  stipulated 
wages  up  to  that  date,  although  by  hia 
failure  to  perform  his  contract  he  hns  dam- 
aged the  corporation,  is  unconstitutional  as 
taking  property  from  the  corporation  with- 
out due  process  of  law.  Leep  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.  58  Ark.  407,  25  S.  W.  75, 

23:  264 
Limiting  recovery  in  libel  case. 

835.  The  legislature  cannot  make  the  re- 
traction of  a  libel  a  ground  for  limiting  the 
liability  of  the  publisher  to  special  damages 
inflicted  by  it.  Osborn  v.  Leach,  135  N.  C. 
628,  47  S.  E.  811.  66:648 

836.  The  legislature  may  remove  the  lia- 
bility for  punitive  damages  in  libel  suits 
in  cases  where  a  retraction  is  made  upon 
notice,  since  the  right  to  such  damages  is 
not  a  property  right.  Id. 

837.  A  statute  in  relation  to  liability  for 
libel,  which  in  effect  permits  evidence  of 
good  faith,  coupled  with  a  full  retraction, 
not  merely  in  modification  of  damages,  but 
to  prevent  the  recovery  of  general  damasres 
as  distinguished  from  special  damages  for 
injury  of  a  pecuniary  nature,  does  not  vio- 
late Minn.  Const,  art.  1,  §  8.  which  provides 
that  "every  person  is  entitled  to  a  certain 
remedy  in  the  laws  for  all  injuries  or 
wrongs  which  he  may  receive  on  his  per- 
son, property,  or  character."  Allen  v.  Pion- 
eer Press  Co.  40  Minn.  117,  41  N.  W.  936. 

3:  5.32 


620 


CONSTlTUTlOiJAL  LAW,  II.  b.  7. 


838.  A  statute  limiting  the  recovery,  in  an 
action  for  libel  against  a  newspaper  pub- 
lisher, to  actual  damages  only,  where  it  ap- 
pears on  the  trial  that  the  article  was  pub- 
lished in  good  faith,  and  that  within  a  spec- 
ified time  after  service  of  notice,  by  the 
party  libeled,  of  his  intent  to  bring  an  ac- 
tion, specifying  the  statement  alleged  to 
be  libelous,  a  full  and  fair  retraction  was 
published  in  as  conspicuous  a  place  and  type 
m  such  newspaper  as  was  the  alleged  libel- 
ous article, — is  void  as  denying  the  constitu- 
tional right  to  a  remedy  by  due  process  of 
law  for  an  injury  suffered.  Hanson  v.  Kreh- 
biel,  68  Kan.  670,  75  Pac.  1041,  64:  790 
Shortening  period  of  limitations. 

839.  A  statute  which  practically  denies  a 
party  the  right  to  sue  on  an  existing  cause 
of  action,  by  shortening  the  period  of  limi- 
tations, without  leaving  a  reasonable  time 
thereafter  in  which  to  bring  the  action,  de- 
prives the  party  of  his  property  without  due 
process  of  law.  Osborne  v.  Lindstrom,  9 
N.  D.  1,  81  N.  W.  72,  4G:  715 

840.  A  statute  which  shortens  the  period 
for  bringing  an  action,  without  providing  a 
reasonable  time  for  bringing  it  after  the 
statute  takes  effect,  is  unconstitutional  as 
a  deprivation  of  property  without  due  proc- 
ess of  law,  even  if  a  period  of  several 
months  elapses  between  the  passage  of  the 
act  and  the  time  when  it  goes  into  effect. 
Gilbert  v.  Ackerman,  159  N.  Y.  118,  53  N.  E. 
753,  45:  118 
Repeal  of  statute  giving  right  of  action. 

841.  The  repeal  of  a  statute  which  created 
a  right  of  action  against  a  county  for  an 
injury  resulting  from  a  defective  bridge  or 
highway  does  not  violate  a  constitutional 
provision  that  every  man  shall  have  a  rem- 
edy by  due  course  of  law  for  injury  done 
him  in  person,  property,  or  reputation, 
althoush  the  statute  was  in  force  at  the 
adoption  of  the  Constitution.  Templeton  v. 
Linn  Coimty,  22  Or.  313,  29  Pac.  795,   15:  730 

(b)  Against  Railroad  Companies  or  Carriers. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  IT.  a,  3,  b. 
Police  Power  as  to,  see  infra,  1014,  1015. 
For  Editorial  Notes,  see  infra.  III.  §  14. 

842.  A  statute  requiring  railroads  to  build 
cattle  guards  whenever  demand  for  them  is 
made  by  the  owners  of  land  through  which 
the  road  runs  is  not  unconstitutional  on 
the  ground  that  the  landowner  is  made  the 
sole  judge  of  the  necessity  for  them,  since 
the  statute  might  require  the  company  to 
ronstruct  them  in  every  case.  Birmirifrham 
Mineral  R.  Co.  v.  Parsons,  100  Ala.  662,  13 
So.  602.  27 :  263 
For  fires. 

Equal  Protection  and  Privileges  as  to,  see 

sunra.  429-434.  , 

Police  Power  as  to,  see  infra,  952. 
For  Editorial  Notes,  see  infra.  III.  §  14. 

843.  The  pronerty  of  a  railroad  company 
is  not  taken  without  due  process  of  law  by 
a  statute  making  the  company  liable  for 
fires   set  bv   its   locomotives   or  orijrinating 


on  its  right  of  way  by  an  act  of  its  agents 
or  servants,  but  giving  the  company  an  in- 
surable interest  in  the  property  exposed  to 
such  dangers.  McCandless  v.  Richmond  & 
D.  R.  Co.  38  S.  C.  103,  16  S.  E.  429,      18:  440 

844.  The  Colorado  act  of  1874,  making 
every  railroad  corporation  liable  for  all  dam- 
ages by  fire  caused  by  operating  the  road, 
is  not  unconstitutional,  but  is  merely  the 
re-enactment,  pro  tanto,  of  a  provision  of 
the  ancient  common  law.  Union  P.  R.  Co. 
V.  De  Busk,  12  Colo.  294,  20  Pac.  752, 

3:  350 

845.  As  to  fires  not  caused  by  negligence, 
the  statute  merely  provides  that  tlie  person 
whose  use  of  a  dangerous  agency  caused  a 
loss  to  another  innocent  person  shall  bear 
the  loss.  Id. 

846.  A  railroad  company  is  not  deprived 
of  its  property  without  due  process  of  law, 
or  contrary  to  the  law  of  the  land,  by  a 
statute  making  such  company  liable  for  all 
fires  caused  and  communicated  from  locomo- 
tives. Matthews  v.  St.  Louis  &  S.  F.  R.  Co. 
121  Mo.  298,  24  S.  W.  591,  25:  161 
[Aff'd  by  the  Supreme  Court  of  the  United 
States  in  165  U.  S.  1,  41  L.  ed.  611,  17  Sup. 
Ct.  Rep.  243.] 

For  injury  to  stock. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  428. 
For  Editorial  Notes,  see  infra.  III.  §  14. 

847.  Due  process  of  law  is  not  afforded  by 
a  statute  allowing  a  railroad  company  to  be 
charged  with  liability  for  stock  killed  by 
trains  irrespective  of  negligence,  and  the 
amount  of  recovery  to  be  established  with- 
out proof  of  the  value  of  the  stock.  Wads- 
worth  v.  Union  P.  R.  Co.  18  Colo.  600,  33 
Pac.  515,  23:  812 

848.  A  statute  cannot  impose  an  absolute 
liability  on  railroad  companies  for  damages 
caused  by  ;ts  trains  in  killing  stock,  irre- 
spective of  the  railroad  company's  negli- 
gence or  fulfilment  of  the  requirements  of 
the  statutes,  but  may  impose  a  liability 
for  negligence  or  failure  to  construct  cat- 
tle guards  required  by  statute.  Birmingham 
Mineral  R.  Co.  v.  Parsons,  100  Ala.  662. 
13  So.  602,  27:  263 

849.  The  Utah  act  of  March  3,  1884,  mak- 
ing any  railroad  company  causins  the  death 
of  live  stock  by  running  an  engine  over  or 
against  it  liable  for  the  value  thereof,  with- 
out regard  to  fault  or  negligence  of  the  cor- 
poration, attempts  to  authorize  the  taking 
of  property  without  due  process  of  law,  and 
is  void.  Jensen  v.  Union  P.  R.  Co.  6  Utah, 
253,  21  Pac.  994,  4:  724 

850.  Mont.  Comp.  Stat.  p.  826,  §  713,  mak- 
ing every  railroad  corporation  liable  to  the 
owner  for  damages  sustained  by  injuring  or 
killing  an  animal  by  running  trains,  is  un- 
constitutional as  attempting  to  create  the 
liability  without  reference  to  anv  violation 
of  law  or  omission  of  duty.  Bielenbers  v. 
Montana  Union  R.  Co.  8  Mont.  271,  20  Pac. 
314.  2:813 

851.  A  statute  attempting  to  make  a  rail- 
road liable  for  all  damages  to  animals  by 
runnins  trains  cannot,  in  order  to  prevent  its 
condemnation  as  being  unconstitutional,  be 


CONSTITUTIONAL  LAW,  11.  b, 


621 


construed  to  mean  that  the  killing  shall  be 
prima  facie  evidence  of  negligence.  Id. 

Against  carrier. 

852.  A  right  of  action  for  injury  to  a  rail- 
road passenger  given  by  Neb.  Comp.  Stat, 
chap.  72,  art.  1,  §  3,  unless  the  injury  is 
occasioned  by  his  own  criminal  negligence 
or  by  his  violation  of  some  express  rule  or 
regulation  of  the  carrier  actually  brought 
to  his  notice,  is  not  in  violation  of  the  con- 
stitutional provision  as  to  due  process  of 
law,  but  the  statute  is  justifiable  under  the 
police  power  of  the  state.  Chicago,  R.  I.  & 
P.  R.  Co.  v.  Zernecke,  59  Neb.  689,  82  N.  W. 
26,  55:  610 

(2)  Of  Defense. 

As  to  Right  to  Notice  and  Hearing,  see  in- 
fra, II.  b,  7,  c. 
See  also  infra,  1100. 

853.  A  right  of  defense  is  a  remedy  of 
the  defendant  within  tne  constitutional  pro- 
tection of  rights.  Normal  School  Dist.  Bd. 
of  Edu.  V.  Blodgett,  155  111.  441,  40  N.  E. 
1025,  31:70 

854.  The  phrase  "due  process  of  law" 
means  at  least  some  legal  procedure  in 
which  the  person  proceeded  against,  if  he  is 
to  be  concluded  thereby,  shall  have  an  op- 
portunity to  defend  himself.  Re  Gannon,  16 
R.  L  537,  18  Atl.  159,  5:  359 

855.  A  judgment  against  sureties  in  a 
summary  proceeding  for  the  amount  of  a 
judgment  recovered  against  the  principal  in 
an  action  to  which  they  were  not  made  par- 
ties is  without  due  process  of  law,  when 
there  has  been  no  suit  brought  against  them 
on  the  undertaking,  nor  any  opportunity 
given  them  to  plead  or  defend  according  to 
the  usual  course  of  legal  proceedings.  Second 
Nat.  Bank  v.  Becker,  62  Ohio  St.  289,  56  N. 
E.  1025,  51:  860 
Of  limitation. 

Vested  Right  in  Defense  of  Limitations,  see 
supra,  160-1C2. 
850.  A  complete  defense  under  the  statute 
of  limitations  is  property  within  the  pro- 
tection of  a  constitutional  guaranty  of  due 
process  of  law.  Normal  School  Dist.  Bd.  of 
Edu.  V.  Blodgett,  155  111.  441,  40  N.  E. 
1025,  31:70 

0.  Notice  and  Hearing. 

As  to  Mode  of  Serving  Process,  see  supra, 
800-804. 

On  Removal  of  Officer,  see  Officers,  146,  147, 
150. 

Of  Intention  to  Fix  Water  Rates,  see  Wa- 
ters, 589. 

See  also  supra,  798,  828. 

For  Editorial  Notes,  see  infra.  III.  §  8. 

857.  The  institution  and  prosecution  of  a 
proceeding  in  a  court  comprehend  the  filing 
of  a  proper  complaint,  process  for  bringing 
in  the  proper  parties,  and  a  judicial  in- 
quiry according  to  established  rules  and 
practice.  Zanesville  v.  Zanesville  Teleg.  & 
Teleph.  Co.  64  Ohio,  St.  67,  59  N.  E.  781, 

52:  150 


858.  A  law  constitutionally  enacted,  which 
aflfords  a  hearing  before  it  condemns,  and 
provides  for  judgment  after  trial,  does  not 
deprive  of  property,  privileges,  or  immuni- 
ties without  due  course  of  the  law  of  the 
land.  Union  C.  L.  Ins.  Co.  v.  Chowning.  86 
Tex.  654,  26  S.  W.  982,  24:  504 

859.  Due  process  of  law  is  not  furnished 
by  a  judgment  pronounced  without  oppor- 
tunity to  be  heard  by  a  court  of  competent 
jurisdiction  in  accordance  with  the  provi- 
sions of  a  statute,  unless  that  statute  ac- 
cords with  the  provisions  of  the  fundament- 
al law.  People  v.  Havnor,  149  N.  Y.  195,  43 
N.  E.  541,  31:  689 
[Writ  of  Error  Dismissed  in  170  U.  S.  408, 
42  L.  ed.  1087,  18  Sup.  Ct.  Rep.  631.] 

860.  Where  individual  rights  are  con- 
cerned, and  the  matter  is  one  upon  which  a 
party  is  entitled  to  be  heard,  a  proceeding 
conclusively  and  finally  disposing  of  indi- 
vidual property  rights  will  oe  void,  unless 
founded  upon  a  law  providing  for  notice  of 
some  kind.  It  is  not  enough  that  some 
notice  or  information  may  be  given,  but  the 
law  must  provide  for  notice.  Kuntz  v. 
Sumption,  117  Inu.  1,  19  N.  E.  474, 

2:  655 

861.  Special  proceedings  applicable  to  the 
specified  subject-matter,  and  conformable  to 
the  rules  requiring  notice  an^^  the  acquisi- 
tion of  jurisdiction,  and  which  atlect  all 
persons  alike  whose  property  or  rights  come 
within  the  lawful  scope  of  the  proceedings, 
are  prosecuted  with  "due  process  of  law." 
Burlington,  C.  R.  &  N.  R.  Co.  v.  Day,  82 
Iowa,  312,  48  N.  W.  98,  12:  436 

862.  The  remedy  by  due  course  of  law 
guaranteed  by  §  16  of  the  Ohio  Bill  of 
Rights  extends  to  all  the  adversary  rights 
of  persons  in  property,  and  requires,  before 
judicially  determining  such  right,  that  juris- 
diction of  the  person  shall  be  obtained  by 
process  issued  and  served,  although  substi- 
tuted or  constructive  service  may  be  pro- 
vided by  the  legislature  when  actual  serv- 
ice is  impracticable.  State  ex  rel.  Monnett 
V.  Guilbert,  56  Ohio  St.  575,  47  N.  E.  551, 

38:  519 

863.  Notice  by  registered  mail,  in  addi- 
tion to  notice  by  publication,  of  proceed- 
ings by  the  state  board  of  control  created 
by  Wyo.  act  Dec.  22,  1890,  for  the  deter- 
mination of  rights  in  the  waters  of  the 
state,  to  each  person  having  a  recorded 
claim  to  waters  of  the  streams  embraced 
in  the  adjudication  proceedings,  is  sufficient 
to  constitute  due  process  of  law.  Farm  In- 
vestment Co.  v.  Carpenter,  9  Wyo.  110,  61 
Pac.  258,  50:  747 

864.  iNlailing  to  a  resident  of  the  state,  as 
well  as  publishing,  a  notice  of  a  proceeding 
in  scire  facias  to  revive  a  judgment,  as  pro- 
vided in  2  Starr  &  C.  (111.)  Stat.  p.  1789, 
where  his  residence  is  stated  in  the  affidavit, 
which  shows  that  he  has  eone  out  of  the 
state  or  is  concealed  within  it  so  that  proc- 
ess cannot  be  served  on  him, — is  sufficient 
to  satisfy  the  constitutional  requirement  of 
due  process  of  Law.  Bickerdike  v.  Allen, 
157  111.  95,  41  N.  E.  740,  29:  782 

865.  Statutes  conferring  upon  a  city  coun- 


CONSTITUTIONAL  LAW,  IL  b.  7. 


cil  power  to  regulate  and  license  all  kinds 
of  business,  and  authorizing  them  to  re- 
voke any  license  where  there  is  reason  to 
believe  that  such  business  is  a  nuisance,  a 
menace  to  public  health,  or  detrimental  to 
peace  or  morals,  provided  such  revocation 
shall  be  by  unanimous  consent  of  the  board, 
■which  fail  to  provide  for  any  notice  to  the 
licensee  are  not  unconstitutional  as  de- 
priving a  person  of  property  without  due 
process  of  law.  Wallace  v.  Reno,  27  Nev. 
71,  73  lac.  528,  63:  337 

866.  One  is  not  deprived  of  his  property 
without  due  process  of  law  by  an  or<iinance 
imposing  a  penalty  for  failing  to  cut  the 
weeds  on  it,  which  cannot  be  collected  until 
after  a  day  in  court.  St.  Louis  v.  Gait,  179 
Mo.  8,  77  S.  W.  876,  63:  778 

867.  Due  process  of  law  does  not  require 
notice  to  the  owner  of  premises  before  the 
board  of  health  under  statutory  authority 
can  order  him  to  furnish  water  in  tenement 
houses,  where  he  is  entitled  to  a  trial  in 
any  attempt  to  enforce  a  penalty  or  punish- 
ment for  noncompliance.  New  York  Health 
Dept.  v.  Trinity  Church,  145  N.  Y.  32,  39 
N.  E.  833,  27:  710 

868.  A  statute  providing  for  constructive 
notice  only  of  the  institution  and  pendency 
of  a  writ  of  error  proceeding,  by  making  a 
record  in  the  minute  book  of  the  circuit 
court  a  substitute  for  personal  service,  does 
not  violate  the  constitutional  provision 
against  deprivation  of  property  without  due 
process  of  law.  State  ex  rel.  Andreu  v.  Can- 
field,  40  Fla.  36,  23  So.  591,  42:72 
In  establishing  building  line. 

8G9.  The  establishment  of  a  building  line 
merely  by  statute  or  ordinance,  without  no- 
tice to  lotowners,  who  are  thereby  prevented 
from  building  on  their  own  lots  within  a 
certain  distance  from  the  street,  deprives 
them  of  property  without  due  process  of 
law.  St.  Louis  v.  Hill,  116  Mo.  527,  22  S. 
W.  861,  21:226 

In  eminent  domain. 
See  also  Eminent  Domain,  135. 

870.  A  statute  authorizing  gravel  to  be 
taken  from  private  lands  for  necessary  re- 
pairs on  highways  is  not  unconstitutional 
because  notice  is  not  required  to  be  given  to 
the  owner,  or  any  participation  allowed  him 
in  the  selection  or  formation  of  the  tri- 
bunal to  assess  his  damages,  where  he  is 
given  an  opportunity  to  present  a  claim  for 
compensation  to  the  county  court  by  writ- 
ten complaint,  and  have  his  damages  as- 
sessed and  paid,  with  opportunity  to  be 
heard  on  that  question.  Branson  v.  Gee, 
25  Or.  462,  36  Pac.  527,  24 :  355 
In  curative  act. 

871.  A  curative  act  validating  the  estab- 
lishment of  an  improvement  by  a  county 
board  of  supervisors,  which  has  been  de- 
clared void  for  want  of  jurisdiction  because 
of  the  lack  of  a  proper  petition,  is  not  un- 
constitutional as  authorizing  the  taking  of 
private  property  without  just  compensation, 
where  such  act  gives  to  those  to  be  taxed 
an  opportunity  to  be  heard  after  notice.  As 
to  the  taking  of  property,  such  prooeedines 
stand  in  the  same  position  as  any  other  case 


of  taxation  for  public  purposes.  Richman 
V.  Muscatine  County,  77  Iowa,  513,  42  M.  W. 
422,  4:  445 

As  to  the  adoption  of  child. 

872.  Due  process  of  law  in  proceedings 
for  the  adoption  of  a  child  on  the  ground  of 
the  parent's  abandonment  requires,  as  to 
the  parent,  some  notice  and  opportunity  to 
be  heard.  Schiltz  v.  Roenitz,  86  Wis.  31, 
56  N.  W.  194,  21 :  483 
As  to  poor  person. 

873.  The  removal  of  a  person  in  destitute 
circumstances,  who  applies  for  public  sup- 
port in  a  county  where  he  is  temporarily 
remaining,  to  a  county  in  which  he  has  a 
legal  settlement,  by  the  county  commission- 
ers or  their  chairman  without  judicial  pro- 
ceedings or  notice  to  him  of  the  contem- 
plated removal,  and  without  opportunity  to 
be  heard  in  respect  thereto,  does  not  violate 
the  constitutional  provision  as  to  due  proc- 
ess of  law.  Lovell  v.  Seeback,  45  Minn.  465, 
48  N.  W.  23,  11:  667 
As  to  insane  person. 

See  also  supra,  819-821. 

874.  Adjudging  a  person  insane  without 
notice  to  him,  under  Iowa  Code,  §  1400, 
when  the  commissioners  think  it  would  be 
injurious  to  him  to  hold  the  examination  in 
his  presence,  does  not  deprive  him  of  his 
liberty  without  due  process  of  law,  where 
a  regular  practising  physician  visits  and  per- 
sonally examines  him,  and  any  relative,  or 
any  citizen  of  the  county,  may  appear  and 
resist  the  application,  and  the  parties  may 
appear  by  counsel  if  they  like.  Chavannes 
V.  Priestly,  80  Iowa,  316,  45  N.  W.  766, 

9:193 

875.  A  statute  permitting  commitment  to 
a  hospital  for  the  insane  upon  an  applica- 
tion by  a  relative  or  friend  of  the  alleged 
insane  person,  or  by  any  one  of  certain  of- 
ficials, accompanied  by  a  certificate  of  au- 
thorized medical  examiners  that  insanity 
exists,  together  with  a  statement  of  the 
facts  and  circumstances  on  which  the  opin- 
ion is  Lased,  without  any  provision  for  no- 
tice to  the  alleged  insane  person, — is  void 
as  depriving  him  of  liberty  without  due 
process  of  law.  Re  Lambert,  134  Cal.  626, 
66  Pac.  851,  55:  856 

876.  Empowering  the  court,  in  its  discre- 
tion, to  commit  one  acquitted  of  murder 
because  of  insanity  to  an  asylum  for  treat- 
ment, from  which  he  cannot  be  released 
without  an  act  of  the  legislature,  without 
notice  to  him  or  giving  him  an  opportunity 
to  be  heard,  or  any  provisions  for  investiga- 
tion as  to  his  present  mental  state,  deprives 
him  of  his  liberty  without  due  process  of 
law.  Re  Boyett,  136  N.  C.  415,  48  S.  E. 
789,  67:  972 
As  to  liens. 

See  also  supra,  664,  814-818. 

877.  A  judgment  which  assumes  to  create 
a  preference  in  favor  of  a  labor  debt  over  a 
pre-existing  lien  on  the  debtor's  property, 
in  pursuance  of  Mich.  Pub.  Acts  1887,  No. 
94,  §  2,  authorizing  such  judgment  without 
making  the  lienor  a  party  to  the  action,  or 
making  provision  for  determining  the  ques- 
tion  of   the   debtor's   insolvency   or   of   the 


CONSTITUTIONAL  LAW,  II.  b,  7. 


right  to  the  preference,  is  void  as  to  him 
because  its  enforcement  would  deprive  him 
of  his  property  without  due  process  of  law. 
Fisher  v.  Wineman,  125  Mich.  642,  84  N. 
W.  1111,  52:  192 

878.  Minn.  Gen.  Stat.  1894,  §§  2451-2465, 
authorizing  the  establishment  of  a  logger's 
lien  without  notice  to  the  owner,  but  not 
precluding  him  from  denying  in  a  subse- 
quent proceeding  plaintiff's  right  to  a  lien, 
and  giving  him  an  opportunity  to  intervene 
in  the  original  action,  is  not  unconstitu- 
tional as  taking  the  property  of  one  person 
to  pay  the  debt  of  another  without  due 
process  of  law.  Brown  v.  Markham,  60 
Minn.  233,  62  N.  W.  123,  30:  84 

879.  The  lien  given  to  a  subcontractor, 
materialman,  or  laborer  by  Ky.  act  March, 
1896  (Ky.  Stat.  §  2463),  though  given  irre- 
spective of  any  notice  of  the  claim  or  of  the 
state  of  the  account  between  the  owners  and 
the  contractors,  is  not  unconstitutional,  as 
to  future  contract^,  as  a  taking  of  one 
man's  property  to  pay  the  debt  of  another 
without  giving  any  day  in  court,  or  as  an 
unwarrantable  interference  with  the  right  to 
make  contracts.  Hightower  v.  Bailey,  108 
Ky.  198,  56  S.  W.  147,  49:  255 

880.  That  the  only  notice  of  intention  to 
claim  a  mechanic's  lien,  required  by  stat- 
ute, is  the  filing  of  such  intention  in  the 
recorder's  oflBce  within  sixty  days  after  fur- 
nishing the  materials,  does  not  deprive  the 
property  owner  of  his  property  without  due 
process  of  law,  if  the  statute  existed  when 
the  building  contract  was  made.  Smith  v. 
Neubauer,  144  Ind.  95,  42  N.  E.  40,  1094, 

33:  685 
Taxes. 
See  also  supra,  664-667,  871;   Taxes,  452. 

881.  A  judicial  hearing  is  not  necessary 
to  due  process  of  law  in  matters  of  taxa- 
tiqn.  State  v.  Sponaugle,  45  W.  Va.  415, 
32  S.  E.  283,  43:  727 

882.  The  fact  that  persons  whose  proper- 
ty is  assessed  have  no  opportunity  to  be 
heard  as  to  who  shall  be  appointed  on  the 
assessing  commission,  and  no  appeal  in 
which  a  new  commission  may  be  appointed, 
does  not  make  the  assessment  unconstitu- 
tional. Kelly  v.  Minneapolis,  57  Minn.  294, 
59  N.   W.   304,  26:  92 

883.  Requiring  every  taxable  person  to 
bring  in  an  account  of  his  ratable  estate  to 
the  assessors  at  a  time  and  place  of  which 
he  has  notice,  upon  which  he  may  be  exam- 
ined and  heard,  is  sufficient  to  constitute 
due  process  of  law  in  a  tax  assessment. 
McTwiggan  v.  Hunter,  19  R.  I.  265,  33  Atl, 
5,  29:526 

884.  Notice  of  the  time  and  place  at 
which  tax  assessors  will  meet  in  sessions 
which  are  not  secret,  with  the  right  of  the 
taxpayer  to  appear  and  be  heard,  is  suffi- 
cient to  constitute  due  process  in  the  as- 
sessment. SaiKTord  v.  Poe,  16  C.  C.  A.  305, 
37  U.  S.  App.  378,  69  Fed.  546,  60:  641 

885.  A  tax  law  cannot  be  held  to  deprive 
a  taxpayer  of  his  property  without  due 
preeess  of  law,  because  he  is  given  no  op- 
portunity, by  its  express  terms,  of  having 
the    assessment    reviewed    by    a    board    of 


equalization  or  otherwise,  if  it  gives  him 
an  opportunity  to  submit  his  proofs  and 
make  a  showing  to  the  assessor  in  the  mat- 
ter of  the  assessment  of  his  property.  Na- 
than V.  Spokane  County,  35  Wash.  26,  76 
Pac.    521,  65:  336 

886.  The  denial  of  due  process  of  law 
resulting  from  the  provisions  of  the  Indi- 
ana statute  which  assumes  to  confer  au- 
thority upon  the  county  board  of  equaliza- 
tion to  increase  the  valuation  of  property 
of  an  individual  taxpayer  listed  by  him  for 
taxation,  by  a  decision  which  is  final,  with- 
out giving  him  an  opportunity  to  be  heard, 
renders  such  provisions  unconstitutional. 
Kuntz  V.  Sumption,  117  Ind.  1,  19  N.  E. 
474,  2:  655 

887.  Opportunity  for  contesting  in  the  or- 
dinary courts  of  justice  a  charge  imposed 
upon  property  where  cigarettes  are  sold  is 
sufficient  to  uphold  the  tax  as  against  the 
owner  of  the  property  without  notice  to 
him  of  its  assessment,  although  he  may  not 
be  directly  engaged  in  the  business.  Hodge 
V.  Muscatine  County,  121  Iowa,  482,  96  N. 
W.  968,  67 :  624 

888.  A  collateral  inheritance  tax  for  the 
use  of  the  state,  imposed  by  Iowa  Acts  26th 
Gen.  Assem.  chap.  28,  without  any  provision 
for  notice  to  the  heirs,  legatees,  or  devisees, 
is  unconstitutional  as  a  deprivation  of  prop- 
erty without  due  process  of  law.  Ferry  v. 
Campbell,  110  Iowa,  290,  81  N.  W.  604. 

50:  92 

889.  A  proceeding  in  rem  under  a  state 
statute  to  revive  an  outward  tax  judgment 
and  a  lost  lien  of  the  state  for  taxes,  in 
which  a  default  judgment  is  rendered,  does 
not  constitute  due  process  of  law.  Kipp  v. 
Elwell,  65  Minn.  525,  68  N.  W.   105, 

33:  43.T 
Assessments  for  public  improvements. 
See  also  supra,  668-673;  Drains  and  Sewers. 
3,   14;   Public  Improvements,   139. 

890.  An  owner  of  property  who,  before  it 
can  be  included  in  a  drainage  district,  is 
given  a  day  in  court,  is  not  deprived  of  his 
property  without  due  process  of  law. 
Mound  City  Land  &  S.  Co.  v.  Miller,  170  Mo. 
240,  70  S.  W.  721,  60:  190 

890a.  An  assessment  by  the  common 
council  of  a  city,  without  notice  to,  or  op- 
portunity to  be  heard  by,  the  parties  inter- 
ested in  or  affected  by  the  assessment,  is 
wanting  in  "due  process  of  law,"  if  its  col- 
lection can  be  enforced  otherwise  than  by 
suit  or  legal  proceedings  in  which  all  de- 
fenses to  its  validity  or  amount  can  be 
raised.     Scott  v.  Toledo,  36  Fed.  385, 

1:  688 

890b.  Failure  to  provide  for  a  notice  to 
the  person  whose  property  may  be  affected 
by  a  local  assessment,  and  to  give  oppor- 
tunity to  appear  and  contest  the  legality, 
justice,  and  correctness  of  the  assessment, 
at  some  stage  in  the  proceedings  before  it 
becomes  final,  renders  the  statute  authoriz- 
ing such  assessments  void  for  want  of  due 
process  of  law.  Violett  v.  Alexandria.  92 
Va.  561.  23  S.  E.  909,  31:  382 

890c.  The  fact  that  the  two  modes  for 
the  collection  of  an  assessment  made  with- 


624 


CONSTITUTIONAL  LAW,  IL  b,  7. 


out  notice  or  opportunity  to  be  heard  pro- 
vide for  proceedings  in  court  in  which  de- 
fense may  be  made  is  not  sufficient  to  make 
an  assessment  valid  as  imposed  by  due  proc- 
ess of  law,  if  the  statute  allows  a  third 
mode  of  collection  by  placing  the  amount 
upon  the  tax  list  and  collecting  it  in  the 
same  manner  as  state  and  county  taxes. 
Scott  V.  Toledo,  36  Fed.  385,  1 :  688 

890d.  The  owner  of  abutting  property  as- 
sessed for  sidewalk  improvements  is  not  de- 
prived of  his  property  without  due  process 
of  law,  where  the  act  authorizing  such  im- 
provement provides  that  when  execution  is 
issued  for  the  amount  of  the  assessment  the 
owijcr  may  file  an  affidavit  denying  the 
whole  or  any  part  thereof,  returnable  to  Lue 
superior  court,  the  issue  upon  which  is  to  be 
tried  and  determined  as  in  cases  of  irregu- 
larity. Speer  v.  Athens,  85  Ga.  49,  11  S.  E. 
802,  9:  402 

890e.  Due  process  of  law  does  not  entitle 
a  landowner  to  a  hearing  before  creation  of 
an  irrigation  district  including  his  property, 
although  it  is  for  the  purpose  of  making 
public  improvements  for  which  his  land  will 
be  assessed.  It  is  sufficient  that  he  be  al- 
lowed a  hearing  at  any  time  before  the  as- 
sessment becomes  final.  Re  Madera  Irrig. 
Dist.  Bonds,  92  Cal.  296,  341,  28  Pac.  272. 

14:  755 

891.  The  notice  provided  for  in  Ohio  Rev. 
Stat.  §  2304,  which  relates  merely  to  the 
passage  of  a  preliminary  resolution  declar- 
ing the  necessity  for  a  certain  improvement, 
but  makes  no  reference  to  any  assessment 
that  may  be  subsequently  made  in  connec- 
tion with  such  improvement,  or  to  defray 
the  costs  and  expenses  thereof,  is  not  suf- 
ficient to  make  a  proceeding  to  take  private 
property  for  public  uses  conform  to  due 
process  of  law.  Scott  v.  Toledo,  36  Fed. 
385,  1 :  688 

891a.  The  construction  of  a  sewer  by  the 
common  council  of  Portland,  Oregon,  under 
§  121  of  the  city  charter,  and  charging  the 
cost  thereof  upon  certain  property  which 
it  declares  benefited  by  the  sewer,  without 
first  giving  the  owners  notice  of  its  pro- 
posed construction,  does  not  deprive  them 
of  their  property  without  due  process  of 
law.  Poulsen  v.'  Portland,  16  Or.  450,  19 
Pac.  450,  1 :  673 

891b.  An  ordinance  fixing  the  rate  per 
thousand  gallons  to  be  paid  for  discharging 
a  sewer  from  private  premises  into  a  com- 
mon sewer  is  not  invalid  for  failure  to  pro- 
vide for  a  hearing  on  the  question  as  to 
the  rate  to  be  fixed,  although  there  is  a 
mere  possibility  that  the  rate  fixed  may  in 
fact  exceed  the  benefit  received.  Carson  v. 
Sewerage  Comrs.  175  Mass.  242,  56  ^.  E.  1, 

48:  277 

891c.  An  assessment  for  city  improve- 
ments according  to  the  number  of  front 
feet  is  void  on  the  ground  that  it  does  not 
constitute  due  process  of  law.  where  it  is 
made  under  general  ordinances  without  no- 
tice to  the  property  owners,  or  without  any 
opportunity  for  thorn  to  be  heard  or  appear. 
Ulman  v.  IJaltimore,  72  Md.  587,  597,  609,  20 
Atl.   141,  21   Atl.  709,  11:  224 


892.  An  assessment  for  a  street  improve- 
ment made  under  the  charter  of  the  city  of 
Norfolk,  Virginia,  §  25,  under  a  resolution 
of  the  council  declaring  the  improvement 
expedient,  and  after  public  notice  of  such 
resolution  by  publication  in  newspapers,  is 
unconstitutional  as  a  deprivation  of  prop- 
erty without  due  process  of  law,  where  the 
notice  wholly  failed  to  designate  any  tribu- 
nal before  which,  or  place  where,  or  time 
when,  a  party  to  be  affected  had  the  right 
to  appear  to  expose  any  alleged  wrong  in 
the  assessment  imposed  upon  him  or  his 
property.  Norfolk  v.  Young,  97  Va.  728,  34 
S.  E.  886,  47:  574 

892a.  A  person  upon  whose  property  an 
assessment  for  cleaning  out  a  drainage 
ditch  is  laid  is  not  deprived  of  his  property 
without  due  process  of  law,  where  the  as- 
sessment is  fixed  bj'  the  county  surveyor 
after  examining  the  sewer  to  ascertain 
whether  the  work  is  necessary,  and  estimat- 
ing the  cost,  and  a  report  of  his  examina- 
tion and  estimate  must  be  returned  to  the 
county  auditor,  who  appoints  a  day  for 
hearing  the  report,  of  which  due  notice  is 
given  to  all  interested  parties,  and  the  au- 
ditor may  make  such  changes  in  the  as- 
sessment as  he  deems  just,  while  any  per- 
son aggrieved  has  a  remedy  under  Ohio  Rev. 
Stat.  1892,  §  5848,  providing  for  an  injunc- 
tion to  restrain  the  illegal  levy  or  coUee- 
tion  of  taxes  and  assessments.  Tavlor  v. 
Crawford,  72  Ohio  St.  560,  74  N,  E.  1065, 

69:  805 

892b.  Failure  to  afford  a  railroad  com- 
pany an  opportunity  to  be  heard  in  oppo- 
sition to  the  construction  of  a  ditch  to 
drain  off  waters  accumulating  along  its 
right  of  way  from  the  construction  of  its 
road  renders  a  statute  providing  for  the 
construction  of  such  ditch  upon  petition  of 
the  owner  or  tenant  of  contiguous  land  up- 
constitutional  as  a  taking  of  property  with- 
out due  process  of  law.  Chicago  &  E.  R. 
Co.  v.  Keith,  67  Ohio  St.  279,  65  N.  E.  1020, 

60:  525 

893.  A  statute  making  the  issue  of  im- 
provement bonds  conclusive  of  the  validity 
of  an  assessment,  and  permitting  the  issue 
of  the  bonds  without  actual  notice  to  the 
owners  of  the  property  assessed  or  on  pub- 
lished notice  only,  within  forty  days  after 
the  assessment  is  finally  determined,  is 
unconstitutional  as  providing  for  depriva- 
tion of  property  without  due  process  of  law. 
Hayes  v.  Douglas  County,  92  Wis.  429,  65  N. 
W.  482,  31:  213 
Establishment  of  boundaries. 

894.  A  statute  enabling  a  majority  of  the 
resident  owners  of  a  section  of  land  to  com- 
pel all  other  owners  of  the  four  sections 
adjacent  thereto  to  contribute  equitably  to 
the  expense  of  locating  and  marking  the  sec- 
tion corners,  by  an  assessment  upon  their 
land,  without  providing  for  notice  to  the 
latter  of  the  time  when  the  work  is  to  be 
done  and  the  cost  apportioned,  but  merely 
providing  for  ten  days'  notice  of  an  inten- 
tion to  have  the  work  done  and  notice  to 
the  county  surveyor,  while  no  notice  of  any 
kind    is   provided    for   to   nonresident   land- 


CONSTITUTIONAL  LAW,  IL  b,  7. 


625 


owners, — is  unconstitutional  as  depriving 
landlords  of  their  property  without  due 
process  of  law.  Davis  v.  St.  Louis  County, 
65  Minn.  310,  67  N.  W.  997,  33:  432 

Gariiishment. 

895.  Due  process  of  law  is  not  furnished 
by  garnishment  of  a  debt  due  to  a  nonresi- 
dent who  is  not  personally  served  witnin 
the  state  and  does  not  voluntarily  appear. 
Louisville  &  N.  R.  Co.  v.  Nash,  118  Ala.  477, 
23  So.  825,  41:  331 
Alimony  and  suit  money. 

896.  Ordering  a  man  to  pay  alimony 
and  suit  money  without  having  had  his  day 
in  court  and  a  hearing  on  the  question  of 
the  marriage,  when  that  is  denied,  is  a  tak- 
ing of  his  property  without  due  process  of 
law.    Hite  v.  Hite,  124  Cal.  389,  57»  Pac.  227, 

"  45:  793 
Kegistering  land  titles. 

897.  The  notice  by  mail,  by  publication, 
and  by  posting  on  the  land  which  Mass. 
Stat.  1898,  chap.  562,  §  32,  requires  to  be 
given  of  a  proceeding  for  registration  of  ti- 
tle to  all  persons  who  are  known  to  make 
any  claim  of  the  land,  is  sufficient  to  sat- 
isfj'  the  constitutional  provision  for  due 
process  of  law.  Tyler  v.  Judges  of  Court 
of  Registration,  175  Mass.  71,  55  N.  E.  812, 

51:433 

898.  The  failure  to  provide  for  any  no- 
tice of  transfers  or  other  dealings  subse- 
quent to  a  registration  of  title  under  Mass. 
Stat.  1898,  chap.  562,  does  not  make  tiie  act 
invalid,  as  the  legislature  has  power  to  fix 
conditions  on  which  land  that  has  been 
brought  into  the  registry  system  shall  be 
held.  Id. 

899.  The  determination  against  adverse 
claimants  of  real  estate  under  Ohio  act 
April  27,  1896,  for  the  registration  of  land 
titles,  made  without  any  issuance  and  serv- 
ice of  summons  upon  them,  and  without 
any  notice  except  by  one  published  in  a 
newspaper  "To  whom  it  may  concern,"  is  in 
violation  of  the  constitutional  guaranty  of 
due  course  of  law.  State  ex  rel.  Monnett 
V.  Guilbert,  56  Ohio  St.  575,  47  i\.  E.  551, 

38:  519 

900.  The  Torrens  system  of  registering 
land  titles,  provided  for  by  Minn.  Laws 
1901,  chap.  'liit,  is  not  unconstitutional  as 
a  taking  of  property  without  due  process 
of  law,  where  the  adjudication  is  made  after 
an  investigation  as  to  the  title  and  as  to 
whether  the  land  is  occupied  or  not,  and 
after  personal  service  of  summons  on  resi- 
dent parties,  and  service  upon  nonresidents 
and  unknown  parties  by  publication,  and 
mailing  a  copy  of  the  publication  notice  to 
nonresidents  whose  address  is  known,  and  a 
right  of  appeal  is  given  and  reimbursement 
provided  for  anyone  sustaining  loss  by  the 
operation  of  the  act  out  of  an  assurance 
fimd  raised  by  a  percentage  charge  upon 
ill!  property  adjudicated;  althougn  the  act 
l)rovides  that  a  decree  confirming  a  title 
and  ordering  registration  shall  be  forever 
binding  and  conclusive,  and  snail  not  be 
opened  by  reason  of  any  disability,  and 
Ihat  no  proceedings  shall  be  had  for  revers- 
ing the  judgment,   except   that  any   person 

L.R.A.  Dig.— 40. 


having  an  interest  in  the  land  who  has  not 
been  actually  served  or  notified  of  the  ap- 
plication for  registration  may,  within  sixty 
days  from  the  entry  of  the  decree,  appear 
and  assert  his  rights,  provided  no  innocent 
purchaser  for  value  has  acquired  an  inter- 
est. State  ex  rel.  Douglas  v.  Westfall,  85 
Minn.  437,  89  N.  W.   175,  57:297 

Seizure,   sale,   or   destruction   of   property; 

abatement  of  nuisance. 
Police  Power  as  to,  see  infra,  967-972. 
See  also  infra,  971. 

901.  Police  officers  may  be  invested  with 
power  to  make  seizures  of  property  for  the 
purpose  of  preventing  crime,  without  vio- 
lating the  constitutional  provision  against 
seizing  property  without  due  process  of  law. 
Board  of  Police  Comrs.  of  Baltimore  v.  Wag- 
ner, 93  Md.  182,  48  Atl.  455,  52:  775 

902.  Unless  articles  seized  because  used 
for  violating  law  are  of  such  a  character 
that  the  law  will  not  recognize  them  as 
property  entitled  as  such  to  its  protection 
under  any  circumstances,  they  cannot  be 
summarily  destroyed  without  affording  the 
owner  an  opportunity  to  be  heard  upon  the 
subject  of  their  lawful  use,  and  to  show 
whether  or  not  they  are  intrinsically  useful 
or  valuable  for  some  lawful  purpose.  State 
V.  Robbins,  124  Ind.  308,  24  N.  E.  978, 

8:438 

903.  Mont.  Rev.  1879,  §  816,  providing 
that  all  property  of  every  kind  held  or  used 
in  any  of  the  twenty  occupations  for  which 
a  license  is  required  in  that  chapter  may 
be  seized  and  sold  for  the  satisfaction  of 
the  license  due  from  the  person  holding  or 
using  it,  without  any  notice  to  the  owner, 
or  any  trial  or  opportunity  to  be  heard, 
and  leaving  him  without  any  remedy  what- 
ever, violates  the  constitutional  provision  as 
to  due  process  of  law.  Chauvin  v.  Valiton, 
8  Mont.  451,  20  Pac.  658,  3:  194 

904.  An  act  authorizing  the  seizure  of 
gaming  tables,  or  other  instruments  of  gam- 
ing, before  a  conviction  of  the  owner  upon 
a  charge  of  keeping  them  for  gaming  pur- 
poses, is  not  unconstitutional  as  depriving 
a  person  of  property  without  due  process 
of  law.  W^oods  V.  Cottrell,  55  W.  Va.  476, 
47  S.  E.  275,  65:  616 

905.  A  hearing  of  a  property  owner  be- 
fore the  condemnation  of  his  land  as  a  nui- 
sance by  a  board  of  health  is  not  necessary 
to  constitute  due  process  of  law,  where  the 
question  of  nuisance  remains  open  to  trial 
in  the  courts,  notwithstanding  the  decision 
of  the  board  of  health.  People  ex  rel.  Cop- 
cutt  V.  Yonkers  Bd.  of  Health.  140  N.  Y.  1, 
35  N.  E.  320,  23:  481 

Yonkers  Bd.  of  Health  v.  Copcutt,  140  N. 
Y.  12,  35  N.  E.  443,  23:  485 

906.  .Notice  to  the  owner  or  occupant  of 
premises  before  the  passage  of  an  ordinance 
by  a  board  of  aldermen,  under  authority  of 
statute,  requiring  a  privy  vault  to  be  filled 
up  and  destroyed,  is  not  necessary  to  consti- 
tute due  process  of  law,  since  his  day  in 
court  can  be  had  when  sued  for  a  penalty 
under  the  ordinance,  or  by  bringing  an  ac- 
tion for  damages  if  the  authorities  fill  up 


626 


CONSTITUTIONAL  LAW,  II.  b.  7. 


and  destroy  the  vault.    Harrington  v.  Provi- 
dence, 20  R.  L  233,  38  Atl.  1,  38:  305 

907.  Seizure  and  destruction  of  nets  by 
officers  in  obedience  to  a  statute;  in  abating 
a  nuisance  caused  by  their  voluntary  use 
by  the  owner  in  violation  of  the  fishery 
laws,  does  not  deprive  the  owner  of  his 
property  without  due  process  of  law  or  of 
"a  certain  remedy  in  the  laws  for  all  inju- 
ries" to  his  property,  or  make  an  unconsti- 
tutional "distinction"  as  to  the  possession, 
enjoyment,  or  descent  of  property.  Bitten- 
haus  v.  Johnston,  92  Wis.  588,  66  N.  W.  805, 

32:  380 

908.  A  statute  authorizing  the  game  war- 
den to  seize  and  forfeit  to  the  state,  with- 
out a  hearing,  all  guns,  dogs,  decoys,  fishing 
tackle,  etc.,  used  by  any  person  hunting  or 
fishing  without  a  license,  when  such  license 
is  required  by  the  act,  is  unconstitutional 
and  void.  McConnell  v.  McKillip  (Neb.)  99 
N.  W.  505,  65:  610 

909.  A  statute  permitting  the  sale  at  auc- 
tion of  trespassing  animals,  after  the  post- 
ing for  ten  days  by  the  proper  officer  of  no- 
tice that  the  animals  had  been  impounded, 
and  are  detained  for  a  certain  amount  of 
damages  and  costs,  without  providing  any 
judicial  proceeding  to  ascertain  either  .the 
damages  to  be  paid,  or  whether  or  not  the 
animals  were  in  fact  running  at  large  with- 
in the  meaning  of  the  statute,  is  void  as 
depriving  the  owner  of  his  property  with- 
out due  process  of  law.  Greer  v.  Downey 
(Ariz.)   71  Pac.  900,  61:  408 

910.  Summary  proceedings  for  the  im- 
pounding of  animals  running  at  large  and 
the  saleof  them  to  nay  the  charges  are  not 
unconstitutional  as  depriving  one  of  his 
property  without  due  process  of  law  or  com- 
pensation. Burdett  v.  Allen,  35  W.  Va.  347, 
13  S.  E.  1012,  14:  337 

911.  An  ordinance  making  a  dog  liable  to 
be  killed  by  any  person  unless  registered 
and  collared  as  provided  by  the  ordinance 
is  not  in  violation  of  the  constitutional  pro- 
vision against  depriving  a  person  of  prop- 
erty without  due  process  of  law,  but  is  a 
valid  police  regulation.  Jenkins  v.  Ballan- 
tyne,  8  Utah,  245,  30  Pac.  760,  16:  689 

912.  An  ordinance  providing  that  a  dog 
seized  while  running  at  large  shall  be  killed 
if  not  ransomed  by  payment  of  $1  before 
10  o'clock  of  the  morning  after  it  has  been 
detained  twenty-four  hours,  and  providing 
for  a  notice  of  the  seizure  to  be  given  to 
the  owner  of  any  dog  having  a  collar  with 
the  owner's  name  thereon,  is  not  unconsti- 
tutional or  so  unreasonable  that  the  court 
can  hold  it  void.  Hagerstown  v.  Witmer. 
86  Md.  2d?;  37  Atl.  965,  39:  649 

913.  The  summary  destruction  or  appro- 
priation of  a  dog  by  a'  humane  society, 
without  notice  to  the  owner,  when  he  has 
failed  to  procure  a  license  for  the  dog  as 
required  by  N.  Y.  Laws  1806,  chap.  448. 
does  not  constitute  a  taking  of  his  property 
without  due  process  of  law,  though  such  a 
confiscation  of  domestic  animals,  such  as 
horses  and  oxen,  would  be  in  violation  of 
the   constitutional   provisions   on   that   sub- 


ject.   Fox  V.  Mohawk  &  H.  R.  Humane  Soc. 
165  N.  Y.  517,  59  N.  E.  353,  51:  681 

914.  Ind.  Rev.  Stat.  1894,  §  2202,  author- 
izing any  agent  of  any  society  for  the  pre- 
vention of  cruelty  to  animals  to  kill  any 
animal  found  neglected  or  abandoned,  and 
which  is  injured  or  diseased  past  recovery, 
or  by  age  has  become  useless,  is  unconstitu- 
tional, as  depriving  the  owner  of  property 
without  due  process  of  law,  so  far  as  it 
permits  such  killing  without  notice  to  him. 
Loesch  V.  Koehler,  144  Ind.  278,  41  N.  E. 
326,  43  N.  E.  129,  35:  682 
Authorizing  execution  against  partners. 

915.  A  statute  authorizing  execution  to 
issue  against  individual  members  of  a  lim- 
ited partnership  to  the  extent  of  the  unpaid 
portions  of  their  subscriptions,  if  execution 
against  the  association  has  been  returned 
unsatisfied,  does  not  violate  the  constitu- 
tional provision  requiring  due  process  of 
law,  where  it  allows  a  judicial  investigation 
as  to  the  amount  remaining  unpaid  on  such 
subscriptions.  Rouse,  H.  &  Co.  v.  Donovan. 
104  Mich.  234,  62  N.  W.  359,  27:  577 

d.  As  to   Evidence. 

Infringement   of  Right   to   Jury   Trial,   see 

Jury,  68-71. 
See  also  supra,   124,  651 ;   infra,   1202. 

915a.  A  change  of  the  rules  of  evidence 
by  general  law  does  not  violate  Mo.  Const, 
art.  4,  §  53,  which  prohibits  such  laws  only 
when  they  are  local  or  special.  Daggs  v. 
Orient  Ins.  Co.  136  Mo.  382,  38  S.  W.  85, 

35:  227 

916.  The  constitutional  right  of  liberty 
and  property  is  not  illegally  impaired  by 
requiring  one  to  appear  before  a  referee  and 
furnish  evidence  to  aid  the  attorney  general 
in  instituting  proceedings  for  the  suppres- 
sion of  a  monopoly.  Re  Davies,  168  N.  Y. 
89,  61  N.  E.  118,  56:  855 
Burden  of  proof. 

917.  The  legislature  may  impose  upon  one 
in  whose  possession  papers  used  in  playing 
policy  are  found  the  burden  of  showing  that 
such  possession  was  not  with  knowledge 
and  in  violation  of  a  statute  making  it  a 
penal  offense.  People  v.  Adams,  176  N.  Y. 
351,  68  X.  E.  636,  63:  406 
Prima  facie  evidence;  presumptions. 

See   also   supra,  851;    Carriers,   1097;    Jury, 
50,  68,  69. 

918.  A  statute  prescribing  the  circum- 
stances that  shall  constitute  prima  facie 
evidence  of  a  fact  in  issue  on  trial  in  the 
courts  of  the  state  is  within  the  authority 
of  the  legislature,  and  may  be  made  applic- 
able to  a  cause  of  action  which  arose  out- 
side of  the  state.  Pennsylvania  Co.  v.  Mc- 
Cann,  54  Ohio  St.  10,  42  X.  E.  768,     31:  651 

919.  The  provision  of  Iowa  act  April  5, 
1888  (Laws  22  Gen.  Assem.  chap.  28),  mak- 
ing the  commissioners'  schedule  prima  facie 
evidence  that  the  rates  fixed  thereby  are 
reasonable  is  not  an  infringement  of  the 
constitutional  guaranties  of  the  right  to 
trial   by   jury,   and   against   deprivation   of 


CONSTITUTIONAL  LAW,  II.  b,  8. 


637 


property  without  due  process  of  law.     Chi- 
cago &  N.  W.  R.  Co.  V.  Dey,  35  Fed.  866, 

1:  744 
919a.  A  person  is  not  deprived  of  the  pre- 
sumption of  innocence  by  a  statute  making 
it  an  offense  to  have  possession  of  prohib- 
ited articles  which  are  of  no  lawful  use. 
Ford  V.  State,  85  Md.  465,  37  Atl.  172, 

41:  551 

920.  There  is  no  vested  right  to  the  rule 
of  evidence  that  everyone  shall  be  presumed 
innocent  until  proved  guilty,  so  that  the 
legislature  cannot  make  the  doing  of  cer- 
tain acts  prima  facie  proof  of  guilt.  Mead- 
owcroft  v.  People,  163  111.  56,  45  N.  E.  303. 

35:  176 

921.  A  statute  making  it  prima  facie  evi- 
dence of  a  banker's  intent  to  defraiid  in  re- 
ceiving a  deposit,  if  his  failure,  suspension, 
or  involuntary  liquidation  occurs  within 
thirty  days  thereafter,  is  not  unconstitu- 
tional. State  v.  Beach,  147  Ind.  74,  46  N.  E. 
145,  36:  179 

922.  The  inference  of  fraudulent  intent 
in  receiving  a  deposit  within  thirty  days  of 
failure  is  not  so  purely  arbitrary,  unrea- 
sonable, unnatural,  or  extraordinary  as  to 
justify  the  court  in  saying  that  such  fail- 
ure had  no  fair  relation  to  or  connection 
with  the  existence  of  fraudulent  intent  at 
the  time  of  the  deposit,  and  that  therefore 
a  statute  making  the  act  prima  facie  evi- 
dence of  the  intent  is  unconstitutional. 
Meadowcroft  v.  People,  163  111.  56,  45  N.  E. 
303,  35:  176. 

923.  Fla.  act  June  7,  1887,  §  4,  making  im- 
plements, devices,  or  apparatus  commonly 
used  in  games  of  chance  usually  played  in 
gambling  houses  or  by  gamblers  prima  fa- 
cie evidence  that  the  house,  room,  or  place 
where  they  are  found  is  kept  for  the  pur- 
pose of  gambling,  is  not  unconstitutional. 
Wooten  v.  State,  24  Fla.  335,  5  So.  39, 

1:  819 
Conclusiveness. 
See  also  supra,  675;  Weights. 

924.  A  statute  making  a  judicial  deter- 
mination of  title  to  land  forever  binding 
and  conclusive  upon  all  persons  after  the 
lapse  of  two  years  may  be  given  effect 
against  parties  to  the  proceeding  and  per- 
sons who  must  bring  legal  proceedings  to 
establish  their  rights,  although  it  would  be 
void  in  favor  of  persons  in  possession  of  all 
they  claim,  who  were  not  parties  to  the 
proceeding.  People  ex  rel.  Deneen  v.  Simon, 
176  III.  165,  52  N.  E.  910,  44:  801 

925.  The  provision  of  Kan.  Laws  1893, 
chap.  100,  making  the  specification  of 
weights  in  bills  of  lading  issued  by  railroad 
companies  for  hay,  grain,  etc.,  shipped  over 
their  lines,  conclusive  evidence  of  the  cor- 
rectness of  such  weights,  is  unconstitutional 
because  denying  to  the  companies  due  proc- 
<'ss  of  law,  and  because  wrongfully  depriv- 
ing the  courts  of  the  judicial  power  to  de- 
termine the  weight  and  sufficiency  of  evi- 
dence. Missouri,  K.  &  T.  R.  Co.  v.  Simon- 
son,  64  Kan.  802,  68  Pac.  653,  57 :  765 

926.  A  statute  providing  that,  if  a  per- 
son performing  labor  or  furnishing  mate- 
rial is  not  enjoined  therefrom  by  law,  by 


the  person  in  whom  is  vested  the  title  to 
the  property  benefited  by  such  labor  or  ma- 
terial, it  shall  be  conclusive  evidence  that 
the  labor  was  performed  or  the  material 
furnished  with  his  consent,  is  uncon.stitu- 
tional  as  depriving  a  man  of  his  property 
without  his  consent.  Meyer  v.  Berlandi,  39 
Minn.  438,  40  N.  W.  513,  1 :  777 

8.  Criminal   Matters. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  II.  a,  8. 

Police  Power  as  to,  see  infra,  II.  c.  5. 

For  Matters  as  to  Jury,  see  supra,  807-810. 

As  to  Arrest  Without  Warrant,  see  Ar- 
rest, 13. 

Subjecting  Prosecuting  Witness  to  Payment 
of  Costs,  see  Costs  and  Fees,  20. 

As  to  Self-Crimination,  see  Criminal  Law, 
87,  98-102;  Witnesses,  II.  c. 

•Jury  as  Judges  of  the  Law,  see  Trial,  112. 

See  also  supra,  704,  745,  746,  821-825,  919a- 
923;  Intoxicating  Liquors,  6;  Municipal 
Corporations,  270. 

927.  A  municipal  ordinance  making  it  a 
misdemeanor  for  a  woman  to  go  into  any 
building  where  liquor  is  sold,  or  to  stand 
within  50  feet  of  such  building,  is  void  as 
nn  unnecessary  interference  with  individual 
liberty.  Gastineau  v.  Com.  108  Ky.  473,  56 
S.  W.  705,  49:  111 
Possession  of  prohibited  property. 
Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 103. 

See  also  supra,  917,  923;  Fisheries,  14,  15, 
22,  28;   Jury,  54. 

928.  An  ordinance  subjecting  one  in  pos- 
session of  premises  on  which  liquor  is  sold, 
disposed  of,  obtained,  or  furnished  in  viola- 
tion or  evasion  of  law,  to  fine,  whether  the 
act  is  with  his  knowledge  or  consent  or  not, 
violates  a  constitutional  provision  that  ab- 
solute and  arbitrary  power  over  the  lives, 
liberty,  and  property  of  freemen  exist  no- 
where in  the  republic.  Campbellsville  v. 
Odewalt,  24  Ky.  L.  Rep.  1717,  1739.  72  S. 
W.  314,  60:  723 

929.  A  person  is  not  deprived  of  his  lib- 
erty without  due  process  of  law  by  a  stat- 
ute making  it  an  offense  to  have  possession 
of  prohibited  articles,  such  as  a  record  of 
lottery  drawings,  even  if  he  did  not  know 
what  the  articles  that  he  had  were.  Ford 
V.  State,  85  Md.  465,  37  Atl.  172,        41:  551 

930.  A  statute  making  it  an  offense 
knowingly  to  have  in  possession  any  pa- 
pers used  in  playing  policy  does  not  deprive 
one  of  his  property  without  due  process  of 
law.  People  v.  Adams,  176  N.  Y.  351,  68 
N.  E.  636,  63:  406 
Tramp  law. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  609. 

931.  No  violation  of  constitutional  pro- 
visions as  to  the  law  of  the  land  and  due 
process  of  law  is  made  by  Ohio  Rev.  Stat. 
§  6995,  known  as  the  tramp  law,  which  is 
enforced  by  usual  and  appropriate  methods 
and  is  of  uniform  operation,  though  it 
makes  it  unlawful  for  a  tramp  outside  of 


628 


CONSTITUTIONAL  LAW.  IL  c.  1. 


the  county  of  his  residence  to  threaten  in- 
jury to  any  other  person.  State  v.  Hogan. 
03  Ohio  St.  202,  58  K  E.  572,  52:  863 

Threatening  debtor. 

932.  The  constitutional  rights  of  property 
do  not  include  the  right  to  send  letters  or 
circulars  to  a  debtor  threatening  to  adver- 
tise a  claim  against  him  for  sale,  which  con- 
stitutes an  offense  under  Mo.  Rev.  Stat. 
1889,  §  3782,  as  a  threat  to  injure  his  credit 
or  reputation.  State  v.  McCabe,  135  Mo. 
450,  37  S.  W.  123.  '  34:  127 
Associating  with  bad  persons. 

Equal  Protection  and  Privileges  as  to,  see 
supra,  G12. 

933.  An  ordinance  forbidding  association 
with  thieves,  etc.,  with  intent  to  agree  to 
commit  any  offense  or  to  cheat  any  person, 
is  an  unconstitutional  invasion  of  the  right 
of  personal  liberty.  Ex  parte  Smith,  135 
Mo.  223,  3C  S.  W.  628,  33:  606 

c.  Police  Power. 

1.  In  General. 

Delegation  of,  see  supra,  20,2-204. 

Matters  as  to  Interstate  Commerce,  see 
Commerce,  84. 

Making  County  Liable  for  Property  De- 
stroyed by  Mob,  see  Counties,  39. 

Review  of  by  Courts,  see  Courts,  I.  c,  2,  b. 

When  Statute  Held  not  to  be  AVithin.  see 
Courts.  487. 

Provision  against  Electioneering,  see  Elec- 
tions, 74. 

Authorizing  Use  of  Highway  as  Railway 
Road  Bed,  see  Eminent  Domain,  335. 

Requiring  Prescribed  Fences,  see  Fences,  4. 

Police  Power  of  Municipality,  see  also  Mu- 
nicipal Corporations,  especially,  II.  c. 

As  to  Construction  of  Telegraph  Line  in 
Street,  see  Telegraphs,  1,  5. 

Power  to  Regulate  Telephone  Rates,  see 
Telephones,  20,  21. 

See  also  supra.  312,  819;  infra,  1054;  Civil 
Rights,  5,  11;  Statutes,  288. 

For  Editorial  Notes,  see  infra,  III.  §  10. 

934.  Some  obvious  and  real  connection 
between  the  actual  provisions  of  police  reg- 
ulations and  their  assumed  purpose  is  es- 
sential to  their  validity.  Chicago,  B.  &  Q. 
R.  Co.  V.  State  ex  rel.  Omaha.  47  Neb.  549, 
66  N.  W.  624,  41:  481 

935.  To  sustain  a  statute  as  an  exercise 
of  the  police  power,  the  courts  must  be  able 
to  see  that  its  object  to  some  degree  tends 
toward  the  prevention  of  some  offense  or 
manifest  evil,  or  that  it  has  for  its  aim 
the  preservation  of  the  public  health,  mor- 
als, safety,  or  welfare.  State  ex  rel.  Wyatt 
v.  AshbrooK,  154  Mo.  375,  55  S.  W.  627. 

48:  265 

936.  The  power  of  the  legislature  over  a 
subject  is  not  limited  by  the  constitutional 
provision  against  local  or  special  laws  grant- 
ing special  or  exclusive  privilege,  immunity 
or  franchise,  but  this  is  rather  a  limitation 
in  respect  to  the  manner  of  the  exercise  of 
the  power.  Smiley  v.  MacDonald,  42  Xeb. 
5,  60  N.  W.  355,  27:  540 


937.  The  police  power  is  subordinate  to 
the  equality  of  privilege  and  burden  secured 
by  the  Constitution.  State  v.  Jackman,  69 
N.  H.  318,  41  Atl.  347,  42:438 

938.  An  exercise  of  police  power  will  not 
be  declared  void  for  the  reason  that  it  is 
partial,  and  does  not  exterminate  the  evil 
with  which  it  undertakes  to  deal.  State  v. 
Burgdoerfer,  107  Mo.  1,  17  S.  W.  646, 

14:  846 

939.  A  valid  exercise  of  the  police  power 
does  not  deprive  any  person  of  liberty  with- 
out due  process  of  law.  Holden  v.  Hardy, 
14  Utah,  71,  46  Pac.  756,  37:  103 
[Aff'd  by  the  Supreme  Court  of  the  United 
States  in  169  U.  S.  366,  42  L.  ed.  780,  18 
Sup.  Ct.  Rep.  383.] 

940.  The  right  of  the  state  to  interfere 
with  the  use  of  private  property  by  its  own- 
er belongs  to  the  police  power  of  the  state. 
State  ex  rel.  Duensing  v.  Roby,  142  Ind.  168, 

41  N.   E.   145,  33:  213 

941.  Legislation  imder  the  police  power 
infringes  the  constitutional  guaranty  of 
protection  in  liberty  and  property  only 
when  it  is  extended  to  subjects  not  within 
its  scope  and  purview,  as  that  power  was 
defined  and  understood  when  the  Constitu- 
tion was  adopted.  People  v.  Budd,  117  N. 
Y.  L  22  N.  E.  670,  5:  559 

942.  The  legitimate  exercise  of  the  police 
power  is  not  subject  to  restraint  by  consti- 
tutional provisions  for  the  general  protec- 
tion, of  rights  of  individual  life,  libertj',  and 
property.  State  v.  Schlemmer,  42  La.  Ann. 
1166,  8   So.  307,  10:  135 

943.  Police  laws  and  regulations  are  not 
unconstitutional,  although  they  prevent  the 
enjoyment  of  individual  rights  in  property 
without  providing  compensation  therefor. 
Summerville  v.  Pressley,  33  S.  C.  56,  US. 
E.  545,  8:  854 

944.  A  government  has  an  inherent  right 
to  impose  such  restraint  and  to  provide 
such  regulations  in  regard  to  the  pursuits 
of  life  as  the  public  welfare  may  require. 
Singer  v.  State,  72  ~Md.  464,  19  Atl.  1044. 

8:  551 

945.  The  state  has  authority  to  make 
extensive  and  varied  regulations  as  to  the 
time,  mode,  and  circumstances  in  and  under 
which  parties  shall  assert,  enjoy,  or  exer- 
cise their  rights,  without  coming  in  conflict 
with  any  of  those  constitutional  principles 
which  are  established  for  the  protection  of 
private  rights  or  private  property.  State 
V.  Harrington,  68  Vt.  622,  35  Atl.  515, 

34:  100 

946.  The  limitation  on  the  legislative  ex- 
ercise of  the  police  power  is  that  such  a 
statute  must  have  a  reasonable  connection 
with  the  welfare  of  the  public.  People  v. 
Havnor,  149  N.  Y.  195,  43  N.  E.  541,  31:  689 
[Writ  of  error  dismissed  in   170  U.  S.  408, 

42  L.  ed.  1087,  18  Sup.  Ct.  Rep.  631.] 

947.  Legislation  to  protect  a  citizen 
against  the  consequence  of  his  own  acts  is 
not  within  the  constitutional  exercise  of  the 
police  power.  Re  Morgan,  26  Colo.  415,  58 
Pac.  1071,  47:  52 

948.  The  police  power  of  the  state  is  the 
power  to  govern  men  and  things  within  the 


CONSTITUTIONAL  LAW,  II.  c,  2,  3. 


629 


limits  of  its  dominion,  and  is  not  limited  to 
the  protection  of  health,  peace,  morals,  edu- 
cation, and  good  order,  but  comprehends  all 
those  general  laws  or  internal  regulations 
necessary  to  secure  peace,  good  order,  the 
health  and  comfort  of  society,  and  the  reg- 
ulation and  protection  of  all  property  in  the 
state.'  State  v.  Harrington,  68  Vt.  'G22.  35 
Atl.  515,  34:  100 

949.  A  police  regulation  prohibiting  acts 
which  are  in  some  circumstances  harmless 
is  not  unconstitutional  as  an  exercise  of  ju- 
dicial power.  State  v.  Gritlin,  69  N.  H.  1. 
39  Atl.  200,  .  .41:  177 

950.  The  legislature  in  undertaking  to  im- 
pose an  unreasonable  and  unnecessary  bur- 
den upon  any  one  citizen  or  class  of  citi- 
zens transcends  the  authority  intrusted  to 
it  by  the  Constitution  although  it,  imposes 
the  same  burden  upon  all  other  citizens  or 
class  of  citizens.  Ritchie  v.  People,  155  111. 
98,  40  N.  E.  454,  29:  79 
Assessments. 

Equal  Protection  as  to,  see  supra,  440. 
Due  Process  of  Law  as  to,  see  supra,  668- 
673;   890-894. 

951.  The  police  power  of  the  state  does 
not  extend  to  the  levying  of  special  assess- 
ments on  property  benefited  by  a  levee. 
Reel  foot  Lake  Levee  Dist.  v.  Dawson,  97 
Tenn.  151,  34  S.  W.  1041,  34:  725 
Railroad  fires. 

Equal   Protection  and  Privileges  as  to,   see 

supra,  429-434. 
Due  Process  of  Law  as  to,  see  supra,  843- 

846. 

952.  The  police  power  of  a  state  has  no 
application  in  respect  to  the  liability  of  a 
railroad  company  for  fires  communicated  by 
its  engines  or  originating  on  its  right  of 
way,  as  this  power  applies  only  to  matters 
pertaining  to  the  public  healtn,  the  public 
morals,  and  the  public  safety.  McCandless 
V.  Richmond  &  D.  R.  Co.  38  S.  C  103,  16  S. 
E.  429,  18:  440 
Patent  right  notes. 

See  also  Patents,  17,  18. 

953.  The  police  power  will  authorize  the 
passage  of  statutes  requiring  notes  given 
for  patent  rights  to  state  that  fact  on  their 
faces.  State  v.  Cook,  107  Tenn.  499,  64  S. 
W.  720,  62:  174 
Treatment  of  habitual  drunkards. 

954.  The  police  power  does  not  sustain  a 
statute  which  is  for  the  benefit  of  private 
parties  by  providing  for  the  treatment  in 
private  institutions  of  habitual  drunkards 
who  are  not  financially  able  to  pay  for  their 
own  treatment.  Wisconsin  Keeley  Insti- 
tute Co.  V.  Milwaukee  County,  95  Wis.  153. 
70  N.  W.  08,  36:  55 
Administration  of  living  person's  estate. 

955.  Taking  possession  of  a  person's  prop- 
erty, imder  authority  of  a  statute  provid- 
ing for  the  appointment  of  a  special  admin- 
istrator in  case  of  a  person  who  has  disap- 
peared under  circumstances  which  afford 
reasonable  grounds  for  believing  that  he  is 
dead,  cannot  be  upheld  as  a  proper  exer- 
cise of  the  police  power  of  the  state.  Clapp 
v.  Houg,  12  N.  D.  600,  98  N.  W.  710, 

65:  757 


2.  State  Engaging  in  Business. 

As  to  Functions  and  Powers  of  State,  see 

supra,  I.  g. 
See  also  infra,  1078. 

956.  The  police  power  of  the  state  to  reg- 
ulate a  business  is  to  be  exercised  by  the 
adoption  of  rules  and  regulations  as  to  the 
manner  in  which  it  shall  be  conducted  by 
others,  and  not  by  itself  engaging  in  it. 
Rippe  V.  Becker,  56  Minn.  100,  57  N.  W.  331, 

22:  857 

957.  The  purchase  by  a  state  of  a  site 
for  state  elevators  or  warehouses,  and  the 
erection  of  such  structures  for  the  public 
storage  of  gi'ain,  is  not  within  tne  exercise 
of  the  police  power  of  the  state  to  regulate 
the  business   of  such   elevators.  Id. 

958.  The  police  power  of  the  state  does 
not  extend  to  the  entire  prohibition  of  the 
sale  of  intoxicating  liquors  by  private  in- 
dividuals, and  the  giving  of  a  monopoly  of 
such  business  to  the  state,  without  any  at- 
tempt to  restrict  or  discourage  such  sales. 
McCullough  V.  Brown,  41  S.  C.  220,  19  S.  E. 
458,  23:410 

958a.  The  constitutional  reservation  to 
the  people  of  all  powers  not  delegated  does 
not  restrict  the  exercise  of  the  police  power 
so  as  to  defeat  the  assumption,  by  the 
state,  of  the  exclusive  control  and  manage- 
ment of  tne  sale  of  intoxicatmg  liquors. 
State  ex  rel.  George  v.  Aiken,  42  S.  C.  222, 
20  S.  E.  221,  26:  345 

958b.  The  state  under  its  police  power 
can  itself  assume  entire  control  and  man- 
agement of  those  subjects,  such  as  intoxi- 
cating liquors,  that  are  dangerous  to  the 
peace,  good  order,  health,  morals,  and  wel- 
fare of  the  people,  even  when  trade  is  one 
of  the  instruments  of  such  state  control.  Id. 

959.  The  South  Carolina  dispensary  act 
of  1893,  making  all  alcoholic  liquors  con- 
traband and  subject  to  seizure,  unless 
bought  from  a  state  officer,  whose  appoint- 
ment is  provided  for  and  who  is  not  ad- 
dicted to  the  use  of  such  liquors  as  a  bev- 
erage, and  providing  that  the  liquors  sold 
by  him  shall  be  tested  and  found  pure  be- 
fore sale,  and  can  be  sold  only  in  the  day- 
time and  by  the  package,  which  cannot  be 
broken  nor  the  liquor  drunk  on  the  prem- 
ises, and  that  no  sale  shall  be  made  to  a 
minor,  person  intoxicated,  or  in  the  habit 
of  drinking  to  excess,  or  unknown  to  the 
dispenser,  and  that  a  majority  of  the  voters 
in  any  township  may  prevent  the  establish- 
ment of  a  dispensary  therein, — is  a  valid  ex- 
ercise of  the  police  power  of  the  state.     Id. 

3.  As  to  Use,  Enjoyment,  and  Destruction 
of  Property. 

Compensation  for  Injury  to  Interests  where 
no  Property  Taken,  see  Eminent  Do- 
main, 314. 

Prohibiting  Burial  on  Lanas  held  by  Mu- 
nicipality, see  Cemeteries,  14. 

Destruction  of  Mill  and  Dam  to  Prevent  In- 
jury to  Highway,  see  Eminent  Domain, 
247. 

See  also  supra,  630,  647,  785;  infra,  1067. 


630 


CONSTITUTIONAL  LAW,  II.  c.  3 


Highways  and  sidewalks. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  323-325. 
Due  Process  of  Law  as  to,  see  supra,  763- 

766. 
Power  to  Compel  Placing  of  Telegraph  and 

Telephone    Wires    under    Ground,    see 

Highways,  90. 

960.  The  police  power  does  not  authorize 
an  ordinance  requiring  abutting  owners  to 
keep  sidewalks  free  from  snow.  State  v. 
Jackman,  69  N.  H.  318,  41  Atl.  347,    42:  438 

961.  A  village  ordinance  forbidding,  un- 
der penalty,  property  owners  to  permit 
snow  or  ice  to  collect  and  remain  on  the 
sidewalks  in  front  of  their  premises,  so  as 
to  impede  public  travel,  later  than  10 
o'clock  in  the  forenoon  of  the  day  after  the 
same  shall  have  fallen  thereon,  or  for  more 
than  two  hours  after  being  notified  to  re- 
move the  same,  is  a  valid  exercise  of  the 
police  power,  and  is  not  unconstitutional  as 
authorizing  a  taking  of  private  property  for 
public  use  without  just  compensation.  Car- 
thage V.  Frederick,  122  N.  Y.  268,  25  N.  E. 
480,  10:  178 

962.  A  statute  imposing  upon  lotowners 
in  a  city  the  duty  of  repairing  sidewalks  in 
the  public  streets  adjacent  to  their  prem- 
ises violates  no  provision  of  the  Constitu- 
tion, and  is  a  legitimate  exercise  of  the  po- 
lice power  of  the  state.  Lincoln  v.  Janesch, 
63  Neb.  707,  89  N.  W.  280,  56:  762 

963.  An  ordinance  requiring  electric  street 
railway  companies  to  water  their  tracks  so 
as  effectually  to  lay  the  dust  within  them 
is  a  legal  exercise  of  the  police  power  of  the 
city,  as  tending  to  promote  the  comfort, 
health,  and  convenience  of  the  public,  and 
does  not  infringe  the  contract  right  of  the 
companies  to  operate  their  cars.  State  v. 
Canal  &  C.  R.  Co.  50  La.  Ann.  1189,  24  So. 
265,  56:287 

964.  A  statute  authorizing  an  ordinance 
requiring  railroad  companies  to  construct 
and  keep  in  repair  viaducts  over  streets 
crossed  by  their  tracks  is  a  valid  exercise 
of  the  police  power  of  the  state.  Chicago. 
B.  &  Q.  R.  Co.  v.  State  ex  rel.  Omaha,  47 
Neb.  549,  66  N.  W.  624,  41:  481 

965.  Additional  burdens  arbitrarily  im- 
posed without  necessity  upon  a  telephone 
company  which  has  made  investments  and 
expenditures  in  good  faith  and  in  reliance 
upon  an  ordinanre  authorizing  the  erection 
of  poles  and  overhead  lines  in  streets,  such 
as  an  unreasonable  requirement  that  the 
company  must  build  conduits  even  through 
ungraded  streets  and  suburban  parts  of  the 
city  and  in  the  open  country,  are  clearly 
beyond  the  reasonable  exercise  of  the  po- 
lice power.  Northwestern  Teleph.  Exch.  Co. 
v.  Minneapolis,  SI  Minn.  140,  83  N.  W.  527. 
86  N.  W.   69.  53:  175 

9G6.  An  ordinance  declaring  it  unlawful  to 
hold  public  meetings  in  the  streets  of  a  city 
without  the  consent  of  the  municipal  au- 
thorities is  not  unconstitutional,  eillier  be- 
cause it  curtails  or  restricts  the  liberty  of 
speech,  or  makes  an  arbitrary  discrimination 
in  favor  of  some  persons  against  others,  or 
because  the  city  had  no  legal  power  to  en- 


act it;  nor  is  such  ordinance  void  upon  the 
ground  that  it  is  an  unreasonable  and  op- 
pressive exercise  of  police  power.  Fitts  v. 
Atlanta,  121  Ga.  567,  49  S.  E.  793,  67:  803 
Nuisances;  seizure  and  destruction  of  prop- 
erty. 
Due  Process  of  Law  as  to,  see  supra,  901- 

914. 
See  also  infra,  977,  978,  1026. 
For  Editorial  Notes,  see  infra,  III.  §  10. 

967.  Any  occupation  comes  within  the 
range  of  the  police  power,  which  is  such  as 
to  be  naturally  liable  to  create  a  nuismce 
unless  subjected  to  special  regulations 
whether  it  be  so  conducted  as  in  fact  to 
create  a  nuisance  or  not.  State  v.  Orr,  68 
Conn.    101,  35  Atl.  770,  34:  279 

968.  A  city  ordinance  providing  that  no 
persons  shall  establish  or  conduct  any  steam 
shoddy  machine  or  steam  carpet-beating 
machine  within  100  feet  of  any  church, 
schoolhouse,  or  dwelling  house,  is  valid  un- 
der Cal.  Const,  art.  11,  §  11,  providing  that 
any  city  may  make  or  enforce  within  its 
limits  all  such  "police  regulations  as  are 
not  in  conflict  with  general  laws."  Ex  parte 
Lacey,  108  Cal.  326,  41   Pac.  411,         38:  640 

969.  The  statute  declaring  the  emission  of 
thick  or  dense  black  or  gray  smoke  from 
chimneys  a  nuisance  per  se,  anu  punishing 
the  act  as  an  offense,  is  within  the  police 
power,  and  therefore  does  not  deprive  per- 
sons of  property  without  due  process  of 
law.  Moses  v.  United  States,  16  App.  D. 
C.  428,  .  50:  532 

970.  The  destruction  of  property  which 
has  become  a  public  nuisance,  or  which  has 
an  unlawful  existence,  or  is  obnoxious  to 
the  public  health,  public  morals,  or  public 
safety,  is  within  the  proper  exercise  of  the 
police  power  of  the  state,  without  making 
any  compensation  to  the  owner.  Houston  v. 
State,  98  Wis.  481,  74  N.  W.  Ill,        42:  39 

971.  Under  the  police  power  of  the  state, 
the  legislature  has  power  to  declare  prop- 
erty which  may  be  used  only  for  an  unlaw- 
ful purpose  to  be  a  public  nuisance,  and  to 
authorize  the  same  to  be  abated  summarily 
by  public  officers;  but  if  property  of  a  na- 
ture innocent  in  itself  and  susceptible  of  a 
beneficial  use  has  been  used  for  an  unlawful 
purpose,  a  statutory  provision  subjectinor  it 
to  summar}^  forfeiture  to  the  state  as  a 
penalty  or  punishment  for  the  wrongful  use, 
without  affording  the,  owner  thereof  oppor- 
tunity for  a  hearing,  deprives  him  of  his 
property  without  due  process  of  law.  Mc- 
Connell  v.  McKillip   (Neb.)  99  N.  W.  505. 

Go:  610 

972.  A  statute  requiring  the  destruction 
of  peach  trees  attacked  by  the  yellows  is 
within  the  discretion  of  the  legislature  as 
an  exercise  of  the  police  power,  unless  the 
courts  can  see  that  there  could  by  no  pos- 
sibility be  any  apprehension  of  substantial 
danger  from  allowing  them  to  live.  State 
V.  Main,  69  Conn.  123,  37  Atl.  80,  36:  023 
Animals. 

Due  Process  of  Law  as  to,  see  supra,  769- 

777. 
See  also  supra,  911,  infra,  1066. 
For  Editorial  Notes,  see  infra,  HI.  §   10. 


COlNSTlTUTIONAL  LAW,  II.  c,  8. 


681 


973.  An  act  making  it  unlawful  for  the 
owner  of  hogs  to  permit  them  to  run  at 
large  is  an  exercise  of  the  police  power. 
Haigh  V.  Bell.  41  W.  Va.  19,  23  S.  E.  6(i6, 

31:  131 

974.  A  statute  making  it  unlawful  to 
herd  or  graze  sheep  within  2  miles  of  an 
inhabited  dwelling,  and  making  the  owner 
of  sheep  so  herded  or  grazed  liable  for  dam- 
ages to  the  injured  party,  is  a  valid  exer- 
cise of  the  police  power  of  the  state,  and 
not  unconstitutional.  Sifers  v.  Johnson,  7 
Idaho,  798,  65  Pac.  709,  54:  785 

975.  The  constant  use  of  horses  with 
docked  tails  tends  to  corrupt  the  public 
morals  so  as  to  bring  the  prohibition  of  the 
use  of  such  animals  within  tne  police  power 
of  the  state.  Bland  v.  People,  32  Colo.  319, 
76  Pac.  359,  -,     65:  424 

976.  To  provide  adequate  means  of  de- 
fense against  coyotes  is  within  the  general 
police  power,  and  does  not  violate  funda- 
mental principles  of  free  government  or  in- 
fringe upon  the  original  rights  of  the  citi- 
zen. Ingram  v.  Colgan,  106  Cal.  113,  39  Pac. 
437,  28:  187 

977.  Provisions  for  the  summary  destruc- 
tion of  dogs  running  at  large  contrary  to 
statutes  or  ordinances  are  within  the  police 
power  of  the  state.  Hag«rstown  v.  Wit- 
mer,  86  Md.  293,  37  Atl.  905.  39:  649 

978.  An  ordinance  requiring  all  dogs  to 
be  securely  muzzled,  and  declaring  any  dog 
found  running  at  large  without  a  muzzle  to 
be  a  nuisance,  and  that  it  shall  be  the  duty 
of  the  marshal  and  policemen  to  kill  any 
such  dog,  is  a  valid  exercise  of  the  power 
to  enact  ordinances  for  the  protection  of 
life,  health,  and  property,  granted  by 
Burn's  (Tnd.)  Rev.  Stat.  1894,  §§  3541, 
3015,  3616  (Horner's  Rev.  Stat.  1897,  §§ 
3106,  3154,  3155).  Walker  v.  Towle,  150 
Ind.  639,  59  N.  E.  20,  53:  749 
Fish  and  game. 

Due  Process  of  Law  as  to,  see  supra,  769- 
777. 

979.  Regulations  for  the  protection  and 
preservation  of  game  are  within  the  consti- 
tutional power  of  the  legislature.  Haggertv 
v.  St.  Louis  Ice  Mfg.  &  S.  Co.  143  Mo.  238, 
44  S.  W.  1114,  40:  151 

980.  A  statute  prohibiting  the  taking  of 
fish,  with  certain  specified  exceptions,  in  any 
other  manner  than  angling  for  them  with 
hook  and  line,  is  a  valid  exercise  of  the  po- 
lice power.  State  v.  Mrozinski,  59  Minn. 
465,  61  N.  W.  560,  27:  76 

981.  A  statutory  prohibition  of  fishing 
with  a  seine  during  a  part  of  the  year  is 
not  unconstitutional,  even  as  applied  to  a 
lake  wholly  upon  lands  of  a  private  owner 
and  connected  with  an  imnavigable  stream 
onlv  in  time  of  hiffh  water.  People  v. 
Bridges,  142  111.  30,  31  N.  E.  115,        16:  684 

982.  The  exercise  of  the  police  power  in 
protecting  game  and  fish  may  prohibit  the 
sale  of  an  article  of  food  which  is  not  del- 
eterious in  itself.  People  v.  O'Neil,  110 
Mich.  324.  68  N.  W.  227.  33:  690 

983.  The  legislature  may  forbid  the  sale, 


offering  for  sale,  or  possession  during  the 
close  season,  of  trout  which  are  not  alive, 
although  they  were  artificially  propagated 
on  one's  own  premises,  if  such  close  season 
is  not  unreasonable.  Com.  v.  Gilbert,  160 
Mass.   157,  35  N.  E.  454,  22:  439 

984.  A  statute  forbidding  fishing  for  trout 
with  intent  to  sell  or  trade  the  fish  caught 
is  a  valid  exercise  of  the  legislative  power 
to  enact  equal  laws  for  the  protection  of 
the  public  right  of  fishery,  and  of  the  police 
power  of  the  state.  State  v.  Dow.  70  N.  H. 
286,  47  Atl.  734,  53:  314 

985.  The  owner  of  land  over  which  a 
brook  flows  is  not  deprived  of  property 
without  compensation  by  Vt.  Stat.  §  4568, 
allowing  fish  and  game  commissioners  to 
place  fish  in  the  stream,  to  prohibit  fishing 
therein  for  not  more  than  three  years,  and 
by  other  provisions  that  make  the  waters 
public  for  at  least  five  years  longer,  but 
such  provisions  are  justified  by  Vt.  Const, 
chap.  1,  art.  5,  as  a  regulation  of  the  in- 
ternal police,  and  chap.  2,  §  40,  giving  the 
inhabitants  of  the  state  the  right  to  fish 
"in  all  boatable  and  other  waters  (not  pri- 
vate property)  under  proper  regulations,  to 
be  hereafter  made  and  provided  by  the  gen- 
eral assembly."  State  v.  Theriault,  70  Vt. 
617,  41  Atl.  1030,  43:  290 
Water  rights. 

986.  A  s^atute  prohibiting  the  depositing 
of  sawdust  in  the  waters  of  a  lake  or  any 
tributary  thereto  is  a  proper  exercise  of 
the  police  power.  State  v.  GriflSn,  69  N.  H. 
1,  39  Atl.  260,  41:  177 

987.  The  police  power  does  not  justify 
legislation  prohibiting  the  waste  of  water 
from  artesian  wells  to  the  injury  of  the 
wells  of  neiehboring  proprietors.  Huber  v. 
Merkel,  117  Wis.  355,  94  N.  W.  354,  62:  589 
Party  walls. 

988.  The  provisions  as  to  party  walls  in 
Iowa  Code,  §§  2019,  2020,  2027,  giving  a  lot 
owner  the  right  to  build  a  wall  not  more 
than  18  inches  wide,  half  upon  the  land  of 
his  neighbor,  and  to  recover  from  the  neigh- 
bor half  the  expense  thereof  when  the  lat- 
ter shall  use  the  wall,  cannot  be  held  so 
plainly  in  violation  of  the  Constitution  pro- 
hibiting private  property  to  be  taken  for 
private  use  without  compensation  that  they 
can  be  held  invalid  after  more  than  forty 
years'  recognition  and  enforcement,  al- 
thoTigh  their  validity  is  not  free  from  doubt, 
but  they  must  be  upheld  as  an  exercise  of 
the  police  power.  Swift  v.  Calnan,  102 
Iowa,  206,  71  N.  W.  233.  37:462 
Weeds  on  city  lot. 

989.  The  rights  conferred  by  the  consti- 
tutional guaranty  of  the  right  to  life,  lib- 
erty, and  the  enjoyment  of  one's  own  in- 
dustry are  held  in  subordination  to  the 
rights  of  society;  so  that  the  owner  of  a 
city  lot  cannot  permit  weeds  to  grow  on 
his  lot  if  he  would  thereby  endanorer  the 
health  of  others.  St.  Louis  v.  Galb.  179  Mo. 
8,  77  S.  W.  876,  03:  778 


632 


CONSTITUTIONAL  LAW,  II.  c,  4. 


4.  Restrictions  on  Contracts,  Business,  and 
Occupations;    Health. 

a.  In  General. 

Treaty    with    Respect    to    Quarantine,    see 

Treaties,  3. 
See  also  supra,  676,  967-970. 
For  Editorial  Notes,  see  infra,  III.  §  10. 

990.  In  order  to  sustain  legislative  inter- 
ference with  the  business  of  the  citizen  by 
virtue  of  the  police  power,  it  is  necessary 
that  the  act  should  have  some  reasonable 
relation  to  the  subjects  included  in  such 
power.  Chicago  v.  Netcher,  183  111.  104,  55 
N.  E.  707,  48:  261 

991.  A  statute  which  nowhere  attempts 
to  protect  any  public  interest  or  defend 
against  any  public  wrong,  which  shows  upon 
its  face  that  regulation  is  not  its  purpose,  but 
that  revenue  or  undue  restriction  of  a  busi- 
ness in  the  interest  of  others  is  the  aim  in 
view,  cannot  be  sustained  as  an  exercise  of 
the  police  power,  although  it  purports  to 
be  "An  Act  to  Regulate  Business  and 
Trade."  State  ex  rel.  Wyatt  v.  Ashbrook, 
154  Mo.  375,  55  S.  W.  627,  48:  265 

992.  The  legislature  cannot  interfere  with 
the  right  of  parties  to  contract  on  a  sub- 
ject which  is  purely  and  exclusively  pri- 
vate, unaffected  by  any  public  interest,  or 
duty  to  person,  to  society,  or  government, 
where  the  parties  are  capable  of  contract- 
m<r.  Leep  v.  St.  Louis,  L  M.  &  S.  R.  Co. 
58  Ark.  407,  25  S.  W.  75,  23:  264 
Health  generally. 

Quarantine  and  Inspection  Laws  as  Regula- 
tion of  Commerce,  see  Commerce,  11- 
13. 

Review  of  Legislative  Decision  as  to,  see 
Courts,  147. 

Power  of  Congress  as  to,  see  District  of 
Columbia. 

Lowering  Water  of  Navigable  Stream,  see 
Eminent  Domain,  351. 

See  also  supra,  627. 

For  Editorial  Notes,  see  infra.  III.   §   10. 

993.  All  such  wholesome  laws  as  may  be 
necessary  to  promote  the  peace,  health,  and 
well-being  of  society,  are  within  the  lejris- 
lative  power.  State  v.  Powell,  58  Ohio  St. 
324.  50  N.  E.  900,  41 :  854 

994.  The  legislature  has  inherent  author- 
ity, under  the  general  police  power  of  the 
state,  to  enact  laws  for  the  promotion  of 
the  health,  safety,  and  welfare  of  the  peo- 
ple, and  its  arm  cannot  be  stayed  when  ex- 
ercised for  these  purposes.  Re  Boyce,  27 
Xev.   299,  75   Par     1,  65 :  47 

995.  The  constitutional  right  of  an  in- 
dividual to  hold  property  is  subject  to  those 
reasonable  regulations  which  are  necessary 
for  the  common  good  and  general  welfare, — 
especially  such  as  affect  the  health  and 
morals  of  the  people.  Ford  v.  State,  85  Aid. 
465.   .37    Atl.    172,  41:  551 

996.  Laws  and  regulations  necessary  for 
the  protection  of  the  health,  morals,  and 
safety  of  society  are  within  the  legitimate 
exercise  of  the  police  powers  of  the  state, 
jirovidcd  they  are  reasonable.  Td. 

997.  The  power  of  the  legislature  to  sub- 


serve the  general  welfare  of  the  people  by 
all  needful  and  proper  regulations  in  the 
interest  of  health  and  safety  is  inherent 
in  the  sovereignty  of  the  state,  and  cannot 
be  barteied  away  by  contract  or  otherwise. 
Chicago,  B.  &  Q.  R.  Co.  v.  State  ex  rel. 
Omaha,  47  Neb.  549,  56  N.  V,  .  624,      41:  481 

998.  The  physical  welfare  of  the  citizen 
is  a  subject  of  such  primary  importance  to 
the  state,  and  has  such  a  direct  relation  to 
the  general  good,  as  to  make  laws  tending 
to  promote  that  object  proper  under  the  po- 
lice power.  People  v.  Havnor,  149  N.  Y. 
195,  43  N.  E.  541,  31:  689 

[Writ  of  error  dismissed  in  170  U.  S.  408,  42 
L.  ed.  1087,  18  Sup.  Ct.  Rep.  631.] 

99i).  Reasonable  regulations  to  protect  the 
public  against  evils  which  may  result  from 
incapacity  and  ignorance  may  be  made  by 
the  general  assembly,  where  a  i»arsuit  di- 
rectly concerns  the  public  health  and  wel- 
fare, and  is  of  a  character  that  requires  a 
special  course  of  study,  training,  or  expe- 
rience in  order  to  qualify  one  to  pursue  the 
occupation  with  safety  to  the  public  in- 
terests. State  V.  Gardner,  58  Ohio  St.  599, 
51  N.  E.  136,  41 :  689 

1000.  statutes  passed  in  pursuance  of  the 
police  power  of  the  state  must  not  conflict 
with  the  Constitution,  and  must  have  some 
relation  to  the  end  sought  to  be  accom- 
plished; and  where  their  ostensible  object 
is  to  secure  the  public  comfort,  welfare,  or 
safety  they  must  appear  to  be  adapted  to 
that  end,  and  cannot  invade  the  rights  of 
person  and  property  under  the  guise  of  a 
police  regulation  where  they  are  not  such 
in  fact.  "  Ritchie  v.  People,  155  111.  98,  40 
N.   E.   454,  29:  79 

1001.  The  police  power  of  the  state  is 
that  power  which  enables  it  to  promote  the 
health,  comfort,  safety,  and  welfare  of  so- 
ciety. Id. 
As  to  water  closets. 

See  also  Eminent  Domain,  218. 

1002.  Requiring  the  substitution  of  water- 
closets  for  school  sinks  in  tenement  houses 
is  a  proper  exercise  of  the  police  power. 
Tenement  House  Department  v.  Moeschen. 
179  N.  Y.  325.  72  N.  E.  231,  70:  704 

1003.  The  placing  and  maintenance  of  wa- 
ter closets  in  buildings  which  are  designed 
for  habitation,  and  are  so  situated  that 
they  can  be  connected  with  public  sewers, 
may  be  compelled  by  the  state  under  its  po- 
lice power,  althnuGrh  the  buildinsrs  were  law- 
fully erected  without  them.  Com.  v.  Rob- 
erts'. 155  Mass.  281,  29  N.  E.  522,  16:  400 
Water  supply. 

Police   Power  to  Prevent  Pollution   of,   see 
W^aters,  291. 

1004.  A  canal  used  for  the  carriage  of  wa- 
ter for  hire  is  affected  by  a  public  interest 
and  subject  to  legislative  regulation  in  re- 
spect to  the  distribution  of  the  water. 
White  V.  Farmers'  Hichline  Canal  &  R.  Co. 
22  Colo.  191,  43  Pac.  1028,  31:  823 

1005.  A  statute  requiring  water  to  be  fur- 
nished on  each  floor  of  every  tenement 
house  is  a  valid  exercise  of  the  police  power 
with  respect  to  health,  and  also  with  respect 
to   public   safety   regarding   fires   and   their 


CONSTITUTIONAL  LAW,  11,  c.  4. 


633 


extinguishment.    New  York  Health  Dept.  v. 
Trinity  Church,  145  N.  Y-  32,  39  N.  E.  833, 

27:  710 
Garbage. 
Equal  Protection  and  Privileges  as  to,  se^ 

supra,  456-461. 
For  Editorial  Notes,  see  infra,  III.  §  10. 

1006.  The  fact  that  garbage  is  not  a 
nuisance  or  detrimental  to  health  does  not 
exempt  it  from  the  police  power  or  entitle 
a  citizen  to  engage  in  its  transportation 
without  a  license.  State  v.  Orr,  68  Conn. 
101,  35  Atl.  770,  34:  279 
Use  of  flag. 

Ek}ual  Privileges  as  to,  see  supra,  451,  456, 

459. 
Due  Process  of  Law  as  to,  see  supra,  767. 

1007.  The  police  power  does  not  extend 
to  the  prohibition  of  the  use  of  tt\f  national 
flag  for  advertising  purposes.  Ruhstrat  v. 
People,  185  111.  133,  57  N.  E.  41,  49:  181 
Convict-made  goods. 

1008.  A  regulation  of  the  price  of  labor 
by  depressing,  through  the  penalties  of  the 
criminal  law,  the  market  price  of  goods 
made  by  convicts,  which  it  requires  to  be 
labeled  or  marked  "Convict  Made,"  and 
thereby  correspondingly  enhancing  the  price 
of  goods  made  by  other  workmen,  is  not  a 
valid  exercise  of  the  police  power  of  the 
legislature,  at  least,  as  applied  to  convict- 
made  goods  from  another  state.  People  v. 
Hawkins,  157  N.  Y.  1,  51  N.  E.  257,  42:  490 
Insurance. 

Equal   Protection  and  Privileges  as  to,  see 

infra,  405^11. 
Due  Process  of  Law  as  to,  see  supra,  698, 

699,  739,  740. 

1009.  The  police  power  justifies  legisla- 
tion providing  that  insurance  policies  shall 
not  be  avoided  for  t.ie  falsity  of  representa- 
tions or  warranties,  unless  made  with  in- 
tent to  deceive,  or  increasing  the  risk  of 
loss;  and  it  is  immaterial  that  it  is  made  to 
apply  only  to  those  issued  by  old-line  com- 
panies, and  not  to  those  issued  on  the  as- 
sessment plan.  Continental  Fire  Ins.  Co.  v. 
Whitaker,  112  Tenn.  451,  79  S.  W.   119, 

64:  451 
Vaccination. 
Due  Process  of  Law  as  to,  see  supra,  629. 

1010.  The  legislature  may,  in  the  exercise 
of  its  police  power,  authorize  the  health  au- 
thorities of  a  municipal  corporation  to  re- 
quire, under  penalty,  all  citizens  to  he  vac- 
cinated when,  in  their  discretion,  it  is  neces- 
sary for  the  public  health  and  safety.  Com. 
V.  Pear.  183  Mass.  242.  66  N.  E.  719.'  67:  935 

1011.  The  compulsory  vaccination  of  all 
persons  within  the  limits  of  a  citv  when 
there  is  an  epidemic  of  smallpox  existinsr  or 
reasonably  apprehended  is.  if  authorized  by 
statute,  within  the  constitutional  exercise 
of  the  police  Dower.  Morris  v.  Columbus. 
102  Ca.  792.  .30  S.  E.  850.  42:  175 

1012.  A  statute  requiring  vaccination  a 3 
a  prerequisite  to  attendance  at  the  public 
schools  is  a  reasonable  and  proper  exercise 
of  the  police  power,  and  does  not  violate  the 
constitutional  gviaranties  of  life  and  liberty. 
or  the  provision  requirincr  the  maintenaTice 
of  a  system  of  schools  wherein  all  the  chil- 


dren of  the  state  may    be    educated.     Vie- 
meister  v.  White,  179  N.  Y.  235,  72  N.  E.  97, 

70:  796 
Horse  racing. 
Regulation   of   Betting  on   Horse    Race    in 

Other  State  as  Regulation  of  Commerce, 

see  Commerce,  8. 

1013.  A  statute  prohibiting  horse  races 
during  the  winter  months,  or  public  race 
meetings  on  any  track  more  than  three 
times  in  any  year,  or  more  than  fifteen 
days  at  a  time,  or  more  than  twice  in  sixty 
days,  or  with  less  than  thirty  days  be- 
tween meetings, — is  a  legitimate  exercise  of 
the  police  power  of  the  state.  State  ex  rel. 
Duensing  v.  Roby,  142  Ind.  168,  41  N.  E. 
145,  33:  213 
Carriers. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  11.  a,  3,  6. 
Due  Process  of  Law  as  to  Right  of  Action 

or  Defense  against,  see  supra,  II.  b,  7, 

6,   (1),    (b). 
See  also  supra,  852;  Commerce,  48. 

1014.  The  regulation  of  the  pressure  of 
natural  gas  transported  in  pipes  is  within 
the  police  power  of  the  legislature,  to  be 
exercised  according  to  its  discretion,  in  the 
absence  of  facts  to  show  oppression  or  usur- 
pation under  a  pretext  of  exercising  police 
power.  Jamieson  v.  Indiana  Natural  Gas 
&  0.  Co.  128  Ind.  555,  28  N.  E.  76,      12:  652 

1015.  A  stiitute  requiring  railroads  and 
transportation  companies  to  turn  over  to  a 
storage  company  or  public  warehouseman 
all  property  which  the  consignees  fail  to 
call  for  or  receive  within  twenty  days  after 
notice  of  its  arrival  (Minn.  Gen.  Laws  1895. 
chap.  149,  §  11),  is  unconstitutional  and 
void,  not  being  a  lawful  exercise  of  the 
police  power  of  the  state.  State  v.  Chica<jo, 
M.  &  St.  P.  R.  Co.  68  Minn.  381,  71  N.  W. 
400,  38:  672 
Regulation  of  rates. 

Equal  Protection  and  Privileges,  as  to,  see 

supra,  422,  423. 
Due  Process  of  Law  as  to,  see  supra,  751- 

753. 

1016.  The  power  of  the  legislature  to 
regulate  charges  for  the  use  of  property 
and  the  rendition  of  services  connected 
therewith  does  not  depend  in  every  case 
upon  the  fact  that  the  owner  has  a  legal 
monopoly,  or  some  special  governmental 
privileares  or  protection  have  been  bestowed 
upon  him.  but  it  may  also  extend  to  certain 
kinds  of  business  which  hold  such  a  peculiar 
relation  to  the  public  interests  that  there  is 
superinduced  upon  them  the  ri^hl  of  public 
reeulfifion.  People  v.  Budd,  117  N.  Y.  1.  22 
N.  E.  670.  5:559 
Sunday  law. 

See  also  infra,  1076. 

1017.  Sunday  laws  are  within  the  legis- 
lative power  to  adopt  such  wholesome  laws 
as  may  be  necessary  to  promote  the  peace, 
health,  and  well-beinor  of  society,  and  do 
not  violate  the  personal  liberty  of  the  indi- 
vidual, secured  bv  Ohio  Bill  of  Rights.  §  1. 
State  V.  Powell,  58  Ohio  St.  324,  50  N.'  E. 
900,  41 :  854 

1018.  The  police  power  does  not  justify  a 


634 


CONSTITUTIONAL  LAW,  IL  c.  4. 


statute  which  makes  it  unlawful  for  barbers 
to  do  business  on  Sunday  without  inter- 
fering with  any  other  class  of  business. 
Eden  v.  People,  161  111.  296,  43  N.  E.  1108, 

32:  659 

1010.  I*rohibiting  the  opening    of    barber 

shops  on  Sunday  is  within  the  police  power 

of  the  state.    People  v.  Bellet,  99  Mich.  151, 

57  N.  W.  1094,  22:  G96 

1020.  Forbidding  a  barber  to  exercise  his 
trade  on  Sunday'  is  a  proper  exercise  of 
the  police  power,  and  does  not  unconstitu- 
tionally restrain  him  of  personal  liberty,  or 
deprive  him  of  liberty  or  property  without 
due  process  of  law.  State  v.  Sopher,  25 
Utah,  318,  71  Pac.  482,  00:  468 

1021.  A  statute  prohibiting  barbers  from 
carrying  on  their  trade  on  Sunday  is  a 
constitutional  exercise  of  the  police  power 
to  promote  the  public  health.  People  v. 
Havnor,  149  N.  Y.  195,  43  N.  E.  541,  31:  689 
[Writ  of  Error  Dismissed  in  170  U.  S.  408, 
42  L.  ed.  1087,  18  Sup.  Ct.  Rep.  631.] 

6.  Particular  Occupations. 

As  to  Regulation  of  Manufacture  and  Sales, 

see  infra,  II.  c,  4,  d. 
See  also  supra,  471. 
For  Editorial  Notes,  see  infra.  III.  §  10. 

1022.  Persons  giving  out  materials  to 
be  manufactured  into  men's  clothing  may 
be  required  to  keep  a  register  of  those  to 
whom  they  are  given,  to  r.id  the  public  au- 
thorities in  their  supervision  of  the  places 
where  the  work  is  done.  State  v.  Hvman, 
08  Md.  .596,  57  Atl.  6,  64:  637 
Commission  merchants;  transient  dealers. 
Equal   Protection   and  Privileges  as  to,  see 

supra,  478-485. 
See  also  supra,  483. 

1023.  The  regulation  of  the  business  of 
commission  merchants  or  persons  selling 
agricultural  products  and  farm  produce  on 
commission,  in  order  to  protect  a  large  class 
of  ])eople  engaged  in  agricultural  pursuits 
and  more  or  less  remote  from  market  from 
imposition  and  fraud  when  intrusting  their 
products  and  produce  to  commission  men 
for  sale, — is  a  valid  exercise  of  the  palice 
power.  State  ex  rel.  Reek  v.  Wagener,  77 
Minn.  483,  80  N.  W.  6.33,  46:  442 

1024.  A  statute  imposing  burdensome 
regulations  and  license  fees  on  the  business 
of  temporary  or  transient  dealers,  if  its  aim 
is  the  regulation  of  the  business,  and  not 
the  obtaining  of  revenue,  falls  within  the 
police  power  of  the  state,  and  is  therefore 
not  acrainst  public  policy,  whether  it  is 
expedient  or  inexpedient,  politic  or  im- 
politic. State  V.  Foster,  22  R.  T.  163,  46 
Atl.  833,  50:  339 
Lodjrlng-house  keepers. 

1025.  The  police  power  will  not  justify 
the  restriction  of  the  number  of  persons 
which  lodirintr-house  keepers  alone  may  per- 
mit to  occupy  one  room  during  the  same 
niffht,  since  they  are  there. .y  deprived  of 
their  property,  and  the  discr,jniination  in 
limitipg  the  provisions  to  lodginij-house 
keepers   prevents  the   regulation   being  due 


process  of  law.     Bailey  v.  People,  190  111. 

28,  60  N.  E.  98,     .  54:  838 

Pawnbrokers. 

See  also  Courts,  509. 

1026.  The  constitutional  right  of  security 
against  unreasonable  searches  and  seizurea 
is  not  violated  by  regulation  of  a  pawn- 
broker's business,  which-  compels  him  to 
take  out  a  license,  and  to  keep  a  book  with 
a  list  of  all  property  received  in  the  busi- 
ness, and  to  submit  such  book  and  such 
goods  or  other  securities  to  the  inspection 
of  the  mayor  or  a  police  officer.  Shuman  v. 
Ft.  Wayne,  127  Ind.  109,  26  N.  E.  560, 

11:  378 
Employment  agency. 

1027.  The  legislature  cannot  limit  the 
charges  which  the  owner  of  an  employment 
agency  may  make  for  his  services.  Ex  parte 
Dickey,  144  Cal.  2.34,  77  Pac.  924,  66:  928 
Emigrant  agents. 

1028.  The  occupation  of  an  "emigrant 
agent"  does  not  belong  to  that  class  which 
is  so  inherently  harmful  or  dangerous  to 
the  public  that  it  may  be  either  directly  or 
indirectly  restricted  or  prohibited,  where  the 
occupation  consists  merely  in  hiring  laborers 
in  the  state  to  be  employed  beyond  the 
limits  of  the  state.  State  v.  Moore,  113  N. 
C.  697,  18  S.  E.  342,  22:472 
Plumbing. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  517,  518. 
Due  Process  of  Law  as  to,  see  supra,  678. 

1029.  The  business  of  plumbing  is  so 
nearly  related  to  the  public  health  that 
reasonable  regulations  tending  to  protect 
the  public  against  the  dangers  of  careless 
and  inefficient  work  may  be  made  by  law 
without  infringing  the  constitutional  right 
of  the  citizen  to  pursue  such  calling.  State 
V.  Gardner,  58  Ohio  St.  599,  51  N.  E.  136, 

41 :  689 

1030.  A  statute  making  it  unlawful  to 
do  business  as  an  employing  or  master 
plumber  without  a  certificate  of  competency 
obtained  from  an  examining  board,  and 
registration  with  the  boaid  of  health,  and 
requiring  compliance  with  the  regulation  of 
both  boards,  but  having  no  annlication  to 
plumbers  who  do  not  employ  others, — is  a 
constitutional  exercise  of  the  police  power 
to  protect  health.  People  ex  rel.  Nechamcus 
V.  Warden  of  City  Prison,  144  N.  Y.  529,  39 
N.  E.  082,  27:718 

1031.  Prohibiting  any  but  registered 
plumbers  who  have  received  a  certificate  of 
competency  from  a  state  board  to  engage  in 
the  business  of  plumbing  is  but  the  ordinary 
exercise  of  the  police  power  of  the  state,  and 
does  not  violate  any  constitutional  rights  of 
individuals.  Singer  v.  State,  72  Md.  464,  19 
Atl.  1044,  8:  551 
Medicine  and  dentistry. 

Equal   Protection  and  Privileges  as  to,  see 

supra,  492-509. 
Due  Process  of  Law  as  to.  see  supra,  677. 

1031a.  Legislation  prohibiting  anyone 
from  treating  a  disease  for  a  fee.  excepting 
such  persons  as  have  prescribed  qualifi- 
cations, is  a  valid  exercise  of  the  police 
power  of  the  state,  and    is    constitutional. 


CONSTITUTIONAL  LAW,  IL  c,  4. 


ess 


state  V.  Marble,  72  Ohio  St.  21,  73    N.    E. 
1063.  70:  8.35 

1032.  The  requirement  that  all  physicians 
shall  obtain  a  new  certificate  and  license 
under  Ind.  act  March  8,  1897,  although  they 
had  been  previously  practising  medicine  and 
held  a  license  under  the  old  law,  and  that 
the  validity  of  the  old  license  and  the  fit- 
ness of  the  applicant  might  be  examined  by 
the  medical  board,  is  a  valid  exercise  of  the 
police  power  of  the  state.  State  ex  rel. 
Burroughs  v.  Webster,  1.50  Ind.  607,  50  N.  E. 
750,  41:212 

1033.  A  license  to  own,  run,  or  manage  a 
dental  office,  to  be  granted  after  examina- 
tion as  to  fitness,  cannot  be  required  under 
the  police  power  of  the  state,  where  there 
is  no  intention  of  engaging  in  the  actual 
practice  of  dentistry.  State  *^.  Brown, 
(Wash.)  79  Pac.  635,  68:  889 
Barbers. 

See  also  supra,  1018-1021. 

1034.  The  business  of  a  barber  involvef 
the  public  health  and  interests  to  such  an 
extent  that  the  requirement  by  Minn.  Gen. 
Laws  1897,  chap.  186,  of  a  license  or  certifi- 
cate as  a  condition  of  carrying  on  the  busi- 
ness, is  a  valid  exercise  of  legislative 
power.  State  v.  Zeno,  79  Minn.  80,  81,  N. 
W.  748.  48:  88 
Horseshoeing. 

1035.  Requiring  a  horseshoer  to  practise 
the  business  of  horseshoeing  for  four  years. 
and  submit  to  an  examination  by  a  board 
of  examiners  and  pay  a  license  fee  for  the 
pnvilego  of  exercising  his  calling,  is  not 
within  the  police  power  of  the  state.  Bes- 
sette V.  People,  193  111.  334,  62  N.  E.  215, 

56:558 

c.    Matters   between    Master   and    Servant. 

See  also  supra,  541,  686. 

For  Editorial  Notes,  see  infra,  III.  §§  10,  16. 

1036.  Employees  of  corporations  have  no 
right  to  demand  that  greater  power  shall  be 
granted  to  the  corporations  than  the  legis- 
lature sees  fit  to  give  them,  in  order  that 
they  may  make  other  contracts  with  the 
corporations  than  the  latter  are  authorized 
to  enter  into.  State  v.  Brown,  &  S.  Mf<j. 
Co.  IS  R.  I.  16,  25  Atl.  246,  17:  856 

1037.  The  police  power  does  not  extend  to 
a  statutory  prohibition  of  the  exercise  by 
employers  of  the  right  to  insist  that  em- 
plovces  shall  not  belong  to  labor  unions. 
State  V.  Julow.  129  Mo.  163,  31  S.  W.  781. 

29:  257 
Wages. 
Equal  Protection  and  Privileges  as  to,  see 

supra,  552-564. 
Due  Process  of  Law  as  to,  see  supra,  718- 

735. 
For  Editorial  Notes,  see  infra.  III.  §  16. 

1038.  A  statute  prohibiting  the  payment 
of  wages  to  employees,  or  making  advances 
for  labor  not  due,  by  any  "scrip,  token, 
draft,  check,  or  other  evidence  of  indebted- 
ness payable  or  redeemable  otherwise  than 
in  lawful  money."  is  a  valid  exercise  of  the 
police  power.     [Case  affirmed  by  equal  di- 


vision.]    Peel  Splint  Coal  Co.  v.  State,  36 
W.  Va.  802,  15  S.  E.  1000,  17:  385 

1039.  The  power  of  corporations  to  con- 
tract being  the  gift  of  the  legislature,  it 
has  power  to  prohibit  them  from  making 
contracts  with  employees  for  payment  of 
wages  otherwise  than  weekly  and  to  within 
nine  days  of  the  date  of  payment,  unless 
prevented  by  inevitable  casualty.  State,  Cur- 
tis V.  Brown  &  S.  Mfg.  Co.  18  R.  I.  16,  25 
Atl.  246,  17:  856 

1040.  Requiring  employers  to  make  week- 
ly payment  of  wages,  notwithstanding 
private  contracts  which  they  may  make 
with  their  employees,  is  not  within  the 
police  power  of  the  state.  Republic  Iron  & 
S.  Co.  V.  State,  160  Ind.  379,  66  N.  E.  1005, 

62:  136 

1041.  A  statute  requiring  payment  for 
mining  coal  to  be  made  according  to  the 
weight  or  measure  at  the  place  where  it  is 
mined,  and,  if  paid  for  by  weight,  that  it 
shall  be  weighed  in  the  car  before  removed 
from  the  mine  or  screened,  and,  if  paid  for 
by  measure,  according  to  the  number  of 
bushels  marked  on  each  car  before  the 
coal  is  removed  from  the  mine  or  screened, 
is  a  valid  exercise  of  the  police  power. 
[Case  affirmed  by  equal  division.]  Peel 
Spint  Coal  Co.  v.  State,  36  W.  Va.  802,  15 
S.  E.  1000,  17:  385 

1042.  The  prohibition  against  screening 
coal  mined  at  ton  or  quantity  rates,  before 
the  same  is  weighed  and  duly  credited  to 
the  employees  and  accounted  for  at  the  legal 
rate  of  weights,  being  imposed  by  Kan. 
Laws  1893,  chap.  188,  without  prohibiting 
the  employment  of  miners  at  day  wages  or 
making  contracts  for  wages  based  on  the 
quantity  of  screened  coal  produced,  does  not 
affect  the  right  of  contract,  and  is  a  valid 
exercise  of  the  police  power.  State  v.  Wil- 
son, 61  Kan.  32,  58  Pac.  981,  47:  71 
Hours  of  labor. 

Equal  Protection  and  Privileges  as  to,  see 

supra,  547-551. 
Due  Process  of  Law  as  to,  see  supra,  710- 

717. 
For  Editorial  Notes,  see  infra,  IIL  §§  10,  10. 

1043.  A  limitation  of  the  hours  of  labor 
on  public  work  is  not  a  valid  exercise  of  the 
police  power,  it  not  appearing  that  the 
services  and  labor  to  be  performed  are  un- 
lawful or  against  public  policy,  or  that  they 
are  of  such  character  that  such  limitation 
and  restriction  as  to  the  number  of  hours 
of  labor  that  should  constitute  a  day's  work 
are  necessary  to  the  public  welfare.  Cleve- 
land v.  Clements  Bros.  Constr.  Co.  67  Ohio 
St.  197,  65  N.  E.  885,  59:  775 

1044.  The  state  cannot  forbid  independent 
contractors,  performing  work  for  it,  to  re- 
quire their  employees  to  labor  more  than  a 
specified  number  of  hours  per  day,  either 
under  its  police  power,  or  on  the  ground 
that  the  legislature  may  prescribe  rules  for 
the  manner  in  which  state  work  shall  be 
performed.  People  v.  Orange  County  Road 
Constr.  Co.  175  N.  Y.  84,  67  N.  E.  129, 

65:  33 

1045.  The  legislature  may,  under  its  po- 
lice power,  properly  limit  the  hours  of  labor 


636 


CONSTITUTIONAL  LAW,  II.  c.  4. 


of  employees  of  a  public-service  corporation, 
such  as  a  street  railway  company,  to  not 
more  than  ten  out  of  twenty-four,  to  be 
performed  within  twelve  consecutive  hours. 
Re  Ten -Hour  Law  for  Street  R.  Corps.  24 
R.  I.  603,  54  Atl.  602,  61 :  612 

1046.  A  limitation  of  the  duration  of  a 
day's  work  in  underground  mines,  smelters, 
and  works  for  the  reduction  or  refining  of 
ores  or  metals,  known  as  the  "eight-hour 
law,"  is  a  valid  exercise  of  the  police  power 
of  the  state.  Short  v.  Bullion,  B.  &  C.  Min. 
Co.  20  Utah,  20,  57  Pac.  720,  45:  603 

1047.  An  act  providing  that  the  period  of 
employment  of  workingmen  in  smelters 
shall  be  only  eight  hours  per  day,  except  in 
case  of  emergency,  is  authorized  by  Utah 
Const,  art.  16,  §  6,  requiring  the  legislature 
to  pass  laws  to  provide  for  the  health  and 
safety  of  employees  in  smelters.  State  v. 
Holden,  14  Utah"  96,  46  Pac.  1105,  37:  108 
[Aff'd  by  the  Supreme  Court  of  the  United 
States  in  169  U.  S.  366,  42  L.  ed.  780,  18 
Sup.  Ct.  Rep.  383.] 

1048.  A  statute  prohibiting  the  employ- 
ment of  workingmen  in  underground  mines 
more  than  eight  hours  per  day,  except  in 
cases  of  emergency  where  life  or  property 
is  in  imminent  danger,  is  a  valid  exercise  of 
the  police  power,  under  Utah  Const,  art.  16, 
§  6.  authorizing  the  legislature  to  pass  laws 
to  provide  for  the  health  and  safety  of  em- 
ploveo!»  in  factories,  smelters,  and  mines. 
Hoidcn  V.  Hardy,  14  Utah.  71,  46  Pac.  756, 

37:  103 
[Aff'd  by  the  Supreme  Court  of  the  United 
States  in  169  U.  S.  366,  42  L.  ed.  780,  18 
Sup.  Ct.  Rep.  383.] 

1049.  A  statute  restricting  the  hours  of 
labor  of  females  in  manufacturing,  mechani- 
cal, and  mercantile  establishments,  hotels, 
and  restaurants  to  a  maximum  of  sixty 
hours  a  week  is  a  legitimate  exercise  of  the 
police  power,  and  does  not  violate  the 
constitutional  guaranties  of  the  personal 
and  property  rights  of  either  employer  or 
emplovee.  Wenhara  v.  State,  65  Xeb.  394, 
91  N.W.  421,  58:  825 

1050.  A  statute  prohibiting  the  employ- 
ment of  women  in  factories  or  workshops 
for  more  than  eight  hours  a  day  cannot  be 
sustained  as  a  police  regulation  for  the  pro- 
motion of  the  public  health,  on  the  ground 
that  it  is  designed  to  protect  women  on  ac- 
count of  their  sex  and  physique,  as  sex  is 
no  bar  under  the  Illinois  Constitution  or 
laws  to  the  right  to  contract,  and  the  mere 
fact  of  sex  will  not  justify  the  exercise  of 
the  police  power  for  the  purpose  of  limiting 
the  exercise  of  fnch  rights,  by  a  woman,  un- 
less there  is  some  fair,  just,  and  reasonable 
connection  between  such  limitation  and  the 
public  health,  safety,  or  welfare;  and  there 
is  no  reasonable  ground  why  a  woman 
should  be  deprived  of  the  right  to  determine 
for  herself  how  many  hours  during  each  day 
she  can  and  may  work  in  an  employment 
conceded  to  be  lawful  in  itself  and  suitable 
for  her  to  engage  in,  even  if  the  police 
power  can  be  exercised  to  prevent  injury  to 
the  individual  engaged  in  a  particular  call- 


ing.   Ritchie  v.  People,  155  111.  98,  40  N.  E. 
454,  29:  79 

Safety  and  health  of  employees. 
For  Editorial  Notes,  see  infra,  III.  §  16. 

1051.  No  restriction  on  the  police  power 
of  the  legislature  to  provide  for  the  safety 
of  miners  by  means  of  the  inspection  of 
mines  or  otherwise  is  made  by  111.  Const, 
art.  4,  §  29,  which  expressly  requires  the 
legislature  to  pass  laws  for  the  protection 
of  operative  miners  by  providing  for  venti- 
lation and  for  the  construction  of  escape- 
ment shafts  or  such  other  appliances  as  may 
secure  safety  in  all  coal  mines.  Chicago, 
W.  &  V.  Coal  Co.  V.  People,  181  111.  270,  54 
N.  E.  961,  48:  554 

1052.  Imposing  upon  mine  owners  the 
burden  of  paying  the  cost  of  inspection  of 
the  mines,  as  provided  by  111.  act  .July  1, 
1895,  as  amended  in  July,  1897,  is  a  valid 
exercise  of  the  police  power  which  does  not 
depend  upon  any  constitutional  grant  of 
power  to  legislate  concerning  mines.  Id. 

1053.  A  statute  compelling  reasonable 
protection  for  the  employees  on  electric, 
cable,  or  steam  cars,  except  those  on  the 
rear  platform,  between  November  1  and 
April  1  of  each  year,  is  within  the  police 
power.  State. V.  Hoskins,  58  Minn.  35,  59 
N.  W.  545,  25:759 

1054.  A  statute  making  railroad  com- 
panies liable  to  all  employees  for  injuries 
caused  by  negligence  of  any  of  their  serv- 
ants in  charge  of  any  signal,  telegraph  of- 
fice, switch  yard,  shop,  roundhouse,  loco- 
motive engine,  or  train,  is  not  unconstitu- 
tional as  unequal,  but  is  sustainable  as  an 
exercise  of  the  police  power  for  the  pro- 
tection of  persons  exposed  to  dangerous 
agencies  in  the  hands  of  others.  Indian- 
apolis Union  R.  Co.  v.  Houlihan,  157  Ind. 
494,  60  N.  E.  943,  54:787 

1055.  A  statute  requiring  emery  wheels  to 
be  provided  with  blowers  to  carry  away  the 
dust  arising  from  their  operation  is, — at 
least  so  far  as.  it  applies  to  dry  wheels  and 
to  the  protection  of  persons  continuously 
employed  over  them — a  constitutional  exer- 
cise of  the  police  power.  People  v.  Smith, 
108  Mich.  527,  66  N.  W.  382,  32:  853 

1056.  The  police  power  extends  to  pro- 
hibiting the  use  of  a  room  in  a  tenement  or 
dwelling  house  for  the  manufacture  of 
men's  clothing,  except  by  the  immediate 
members  of  the  family  living  there,  and 
then  only  under  permit  from  a  public  of- 
ficial. State  V.  Hyman,  98  Md.  596,  57  Atl. 
6,  64:  637 

1057.  Requiring  a  specified  air  space  for 
every  person  employed  in  a  manufacturing 
establishment  is  strictly  and  essentially  a 
health  regulation  within  the  police  power  of 
the  legislature.  Id. 

d.  Regulation    of    Manufacture    and    Sales. 

See  also  supra,  982-984,  1024. 

1058.  The  sale  of  a  commodity  may  be 
subject  to  the  exercise  of  the  police  power, 
though  its  use  would  not  necessarily  sub- 
vert the  morals,  impair  the  health,  or  dis- 


CONSTITUTIONAL  LAW.  IL  c,  4. 


637 


r 


turb  the  peace  of  society.     State  v.  Schu- 
man.  SCt  Or.  IG,  58  Pac.  661,  47:  153 

lO.")!).  The  police  power  will  not  justify 
an  act  prohibiting  solvent  merchants  from 
disposing  of  their  stocks  in  bulk  without 
giving  notice  to  their  creditors.  Block  v. 
Schwartz.  27  I^tah,  387,  76  Pac.  22,  65:  308 
Department  store. 
Sec  also  infra,  1075. 

1060.  The  sale  in  one  store  or  building 
under  one  head  or  unit  of  management,  of 
dilTorent  articles  enumerated  in  the  different 
classes  or  groups  designated  by  the  Mis- 
souri anti-department  store  act  of  May  16, 
1809,  cannot  be  deemed  harmful  and  danger- 
ous so  as  to  be  subject  to  regulation  by  the 
police  power,  merely  because  fifteen  or  more 
persons  may  be  emnloyed  in  the  establish- 
ment, if  it  is  innocent  and  hawnless  to  sell 
articles  of  any  one  class  or  groiSp,  and  also 
to  sell  those  of  different  classes  or  groups 
in  establishments  employing  less  than 
fifteen  persons.  State  ex  rel.  Wyatt  v.  Aah- 
brook.  154  Mo.  375.  55  S.  W.  627,  48:  265 
Food.    , 

1001.  It  is  within  the  police  power  and 
letrislative  discretion  of  the  city  of  New 
Orleans,  under  act  No.  34  of  1900  of  the 
general  assembly,  to  require  certain  food 
commodities  to  be  sold  only  in  the  public 
markets;  and  the  fact  that  the  ordinance  in 
<luestion  may  have  the  effect  of  compelling 
dealers  in  such  commodities  to  go  into  the 
public  markets,  or  else  to  go  out  of  busi- 
ness, does  not  affect  the  validity  of  the  ordi- 
nance. New  Orleans  v.  Faber,  105  La.  208. 
29  So.  507,  53:  165 

1062.  The  prohibition  of  the  sale  of  cream 
that  contains  less  than  20  per  cent  of  fat, 
by  Minn.  Ccn.  Stat.  1894,  §  7002.  is  a  valid 
exorcise  of  the  police  power,  and  constitu- 
tional. State  V.  Crescent  Creamery  Co.  83 
Minn.  284,  86  N.  W.  107,  54:  466 

1063.  Prohibiting  the  sale  and  shipment 
of  milk  to  supply  cities,  towns,  or  villages, 
from  premises  found  in  an  unsanitary  con- 
dition, until  they  conform  to  reasonable 
sanitary  regulations,  is  a  valid  exercise  of 
the  police  power,  although  it  interferes  to 
some  extent  with  property  rights.  State  v. 
Broadbelt,  89  Md.  565,  43  Atl.  771,       45:  433 

1064.  The  power  of  the  legislature  to  pro- 
hibit the  addition  of  water  or  any  other 
saibstance  whatever  to  milk  that  is  sold  is 
included  within  the  police  power  to  pro- 
tect health,  even  when  it  extends  to  the  ad- 
dition of  that  which  is  harmless  in  itself, 
and  which  is  arVled  without  intent  to  de- 
fraud, but  merely  to  preserve  the  milk. 
State  V.  Schlenker,  112  Iowa,  642,  84  N.  W. 
60S.  ^  51 :  347 

1005.  A  penal  ordinance  requiring  vendors 
of  milk  to  the  public  to  furnish  gratuitous- 
ly to  sanitary  inspectors,  on  their  appli- 
cation, samples  of  milk  not  exceeding  one 
half  pint  for  inspection  and  analysis,  is  a 
legitimate  exercise  of  the  police  power  for 
public  health,  and  is  not  unreasonable, 
vexatious,  or  oppressive.  State  v.  Dupa- 
quicr.  40  La.  Ann.  577,  15  So.  502,      26:  162 

1060.  The  registration  with  the  live-stock 
sanitary  board,  of  all  herds  or    cattle    of 


persons  selling  milk  for  consumption  in 
cities,  towns,  and  villages,  may  be  required 
by  the  legislature  in  the  exercise  of  the 
police  power;  and  such  statute  will  not  de- 
prive the  milk  dealers  of  property  without 
due  process  of  law.  State  v.  Broadbelt,  89 
Md.  565,  43  Atl.  771,  45:  433 

1067.  An  ordinance  providing  for  the  de- 
struction of  milk  which  is  found  by  the 
authorized  inspector,  by  proper  means  and 
instruments,  not  to  come  up  to  the  pre- 
scribed standard,  is  within  the  police  power. 
Deems  v.  Baltimore,  80  Md.  164,  30  Atl.  048, 

26:  541 

1068.  A  statute  prohibiting  the  sale  of 
imitation  butter  unless  colored  pink  is  a 
valid  exercise  of  the  police  power.  State  v. 
Marshall,  64  N.  H.  549,  15  Atl.  210,       1:  51 

1069.  The  police  power  of  the  state  ex- 
tends to  a  requirement  that  oleomargarine 
and  artificial  or  adulterated  butter  shall  be 
colored  pink.  State  v.  Myers,  42  W.  Va. 
822,  26  S.  E.  539,  35:  844 

1070.  Statutes  forbidding  the  manu- 
facture of  any  article  in  imitation  of  butter, 
which  is  not  pure  butter,  or  the  manu- 
facture or  sale  of  oleomargarine  which  con- 
tains any  coloring  matter,  or  the  sale  of  any 
substance  which  is  not  butter,  but  has  the 
appearance  of  butter,  unless  it  is  sold  under 
its  true  name  and  has  its  true  name  plainly 
marked  thereon;  and  requiring  that  all 
persons  dealing  in  food  shall,  upon  proper 
application  and  tender  of  price,  furnish  a 
sample  for  analysis;  the  purpose  of  which 
is  to  prevent  deception  in  the  sale  of  dairy 
products  and  preserve  the  public  health,— 
are  a  proper  exercise  of  the  police  power, 
and  do  not  violate  the  constitutional  right 
to  liberty  and  the  enjoyment  of  property. 
State  ex  rel.  Monnett  v.  Capital  City  Dairy 
Co.  62  Ohio  St.  350,  57  N.  E.  62,  57:  181 

1071.  The  legislature  cannot  prohibit  the 
sale  of  dairy  products  containing  a  pre- 
servative other  than  salt,  sugar,  or  spiritu- 
ous liquors  in  specified  cases,  or  the  sale  of 
preservatives  for  such  use,  when  the  use  of 
preservatives  is  not  declared  to  be  an  adul- 
teration, and  the  statute  is  not  aimed  at 
adulteration  generally,  regardless  of  wheth- 
er or  not  their  effect  is  to  render  the  prod- 
ucts unwholesome.  People  v.  Biesecker,  169 
N.  Y.  53,  61  N.  E.  990,  57:  178 

1072.  An  ordinance  making  it  unlawful  to 
sell  fresh  pork  or  sausage  made  thereof  be- 
tween June  1  and  October  is  unreasonable 
and  void,  since  it  violates  the  inalienable 
right  of  man  to  procure  food.  Helena  r. 
Dwver.   64   Ark.   424,   42   S.  W.   1071- 

39:  266 

1073.  An  ordinance  establishing  the 
weight  of  the  loaves  of  bread  that  shall  be 
offered  for  sale  within  the  city,  and  fixing 
a  penalty  for  offering  for  sale  short-weight 
loaves,  cannot  be  successfully  attacked  as 
not  being  within  the  police  power,  or  as 
taking  property  without  compen.sation,  or 
abridging  or  unlawfully  interfering  with  the 
right  to  carry  on  business.  People  v.  Wag- 
ner. 86  Mich.  594,  49  N.  W.  609.  13:  286 

1074.  The  statutory  prohibition  of  the 
manufacture  or  sale  of  baking  powder  con- 


638 


CONSTITUTIONAL  LAW.  IL  c,  5,  d. 


taining  alum  is  not  unconstitutional  in  view 
of  the  dispute  as  to  the  fact  of  its  whole- 
someness,  which  prevents  the  court  from 
taking  judicial  notice  that  it  is  wholesome 
and  innocuous.  State  v.  Layton,  163 'Mo. 
474,  61  S.  W.  171,  62:  163 

1075.  The  constitutional  guaranties  of 
liberty  and  the  protection  of  property 
rights  are  violated  by  an  arbitrary  pro- 
hibition of  the  sale  of  provisions  where  dry 
goods,  clothing,  jewelry,  and  drugs  are  sold, 
since  such  a  prohibition  is  not  an  exercise 
of  the  police  power.  Chicago  v.  Netcher, 
183  111.  104,  55  N.  E.  707,  48:  261 

Intoxicating  liquors. 
Equal  Protection  and  Privileges  as  to,  see 

supra,  484-491. 
Due  Process  of  Law,  as  to,  see  supra,  754- 

757. 
Police   Regulation    of   Intoxicating   Liquors 
Cenerallv,   see   Intoxicating:  Linuors,  I. 
See  also  supra,  488,  489,  756,  958,  959;  Com- 
merce, 98;  Intoxicating  Liquors,  I.  a. 
1070.  It  is  within  the  police  power  of  the 
state  to  forbid  the  giving  away  or  selling  of 
intoxicatinsr  liquors  on  Sundav.     Altenbunr 
V.  Com.  126  Pa.  602,  17  Atl.  799,         4:  543 

1077.  It  is  within  the  police  power  of  the 
state  to  forbid  the  giving  away,  in  a  social 
or  other  manner,  by  friends  or  neighbors,  of 
intoxicating  liquor  to  one  who  is  intoxi- 
cated. Id. 

1078.  The  establishment  of  dispensaries 
by  a  municipality  for  the  sale  of  intoxicat- 
ing linuors  under  the  management  of  agents 
or  ofTicials  created  for  this  purpose  may  be 
anthrirized  by  the  legislature  as  a  valid 
exercise  of  the  police  power.  Plumb  v. 
Christie,  103  Oa.  686,  30  S.  E.  759,  42:  181 
Tickets, 

107t>.  The  police  power  of  the  state  to 
grant  licenses  to  engage  in  a  business  does 
not  apply  to  a  statute  allowing  tickets  of 
carriers  to  be  sold  only  by  asrents  appointed 
in  a  partif>iilar  manner.  State  v.  Corbett, 
57  IVTinn.  345.  59  N.  W.  317,  24:  408 

lOSO.  Forbidding  all  but  duly  appointed 
agents  of  transportation  companies  from 
engaging  in  the  business  of  ticket  broker 
is  a  violation  of  the  liberty  guaranteed  to 
citizens  by  the  Constitution,  which  is  not 
justified  by  the  police  power  of  the  state. 
People  ex  rel.  Tvroler  v.  Warden  of  New 
York  Citv  Prison,  157  N.  Y.  116,  51  N.  E. 
1006,         '  43:  264 

5.  As  to  Vices;   Crimes. 

Equnl   Protection  and  Privileges  as  to,  see 

supra,  II.  ?    8. 
Due  Process  of  L?.w  as  to,  see  supra,  II.  b,  8. 
Keview   of   Lef.'islative   Decision   as   to,   see 

Courts,  148. 

1081.  The  legislature  has  power  to  de- 
clare that  certain  acts  shall  constitute  a 
criminal  ofTc^^e,  on  the  ground  that  they 
endanger  public  morals,  althouorh  such  acts 
may  not  be  sufTlcient  to  sustain  an  indii't- 
ment  at  coTiTnon  law  for  miis'ince  or  libel. 
State  V.  McKee,  73  Conn.  18,  46  Atl.  400, 

49:  542 


1082.  The  right  of  liberty  and  pursuit  of 
happiness,  which  the  Constitution  makes 
one  of  the  inalienable  rights  of  individuals, 
is  not  necessarily  violated  by  the  prohi- 
bition of  any  act  or  personal  vice  or  habit 
which  does  not  involve  direct  and  immediate 
injury  to  another.  Territory  v.  Ah  Lim,  1 
Wash.  156,  24  Pac.  588,  9:  395 

1083.  Wash.  Sess.  Laws  1883,  p.  30, 
amendatory  of  Wash.  Acts  1881,  chap.  149, 
§  2073,  providing  that  any  person  who 
shall  smoke  or  inhale  opium  shall  be  deemed 
guilty  of  a  misdemeanor,  is  not  unconstitu- 
tional as  being  in  violation  of  the  inalien- 
able rights  to  life,  liberty,  and  pursuit  of 
happiness.  Id. 

1084.  Possession  of  opium  without  having 
a  license  therefor  or  without  having  ob- 
tained it  on  the  prescription  of  a  physician 
or  pharmacist  for  medicinal  purposes  may 
be  made  a  criminal  offense  in  the  discretion 
of  the  legislature,  without  violating  any 
constitutional  right.  Mon  Luck  v.  Sears.  29 
Or.  421,  44  Pac.  633,  32:738 

1085.  An  ordinance  prohibiting  any  prosti- 
tute from  being  on  the  streets  or  alleys  of 
a  city  between  the  hours  of  7  o'clock  p.  m. 
and  4  o'clock  a.  m.,  without  any  reasonable 
necessity  therefor,  is  a  valid  exercise  of  the 
police  power  under  a  statute  giving  author- 
ity to  "restrain  and  punish  prostitutes." 
Dunn  V.  Com.  105  Ky.  834,  49  S.  W.  813. 

43:  701 

d.   Freedom   of   Speech   and   of  the   Press; 
Religious  Freedom. 

Making  Publication  as  to  Pending  Case  a 
Contempt,  as  Interference  with  Free- 
dom of  the  Press,  see  Contempt,  17,  79. 

Injunction  against  Free  Speech,  see  Injunc- 
tion, 61,  123. 

Prohibition  of  Public  Address  in  Street,  sec 
Municipal  Corporations,  145,  146. 

Prohibiting  Publication  of  Criminal  News, 
see  Newspaper,  10. 

Right  to  Publish  Anarchistic  Article,  see 
Sedition,  3. 

See  also  supra,  966;  Privacy,  2,  3. 

1086.  An  ordinance  prohibiting  any  pub- 
lie  address  upon  any  of  the  public  grounds 
of  a  city,  such  as  Boston  common,  is  not 
an  unconstitutional  interference  with  free 
speech.  Cora.  v.  Davis,  162  Mass.  510,  39 
N.  E.  113.  26:  712 

1087.  The  constitutional  gruaranty  of  the 
right  to  speak,  write,  or  publish  on  any  sub- 
ject does  not  extend  to  the  sending  of  let- 
ters or  circulars  to  a  debtor  threatening  to 
advertise  a  claim  against  him  for  sale,  which 
is  a  threat  to  injure  his  credit  or  reputation 
in  violation  of  Mo.  Rev.  Stat.  1889,  §  3782. 
State  V.  McCabe,  135  Mo.  450,  37  S.  W.  123, 

34:  127 
lOi'S.  The  constitutional  guaranty  of  the 
freedom  of  the  press  does  not  restrict  the 
rijrht  of  the  owner  of  a  newspaper  on  a 
sale  of  it  to  bind  himself  against  editing  or 
being  connected  with  another  journal  in  the 
same  localitv.  Cowan  v.  Fairbrother,  118 
N.  C.  406,  24  S.  E.  212,  32:  829 


CONSTITUTIONAL  LAW.  II.  e,  f. 


639 


1080.  The  summary  punishment  as  for 
contempt  of  the  publication  of  a  newspaper 
article  does  not  constitute  an  invasion  of 
the  liberty  of  the  press.  Burdett  v.  Com. 
103  Va.  838,  48  S.  E.  878,  08:  2.51 

lOnO.  An  act  makinj^  it  a  penal  offense  to 
sell,  or  offer  to  sell,  lend  or  give  a  paper 
principally  made  up  of  criminal  news,  police 
reports,  and  pictures  and  stories  of  blood- 
shed, lust,  and  crime,  does  not  violate  Conn. 
Const,  art.  1,  §  5,  providing  that  every 
citizen  may  freely  speak,  write,  and  publish 
his  sentiments  on  all  subjects,  or  §  6,  pro- 
viding that  no  law  shall  be  passed  to  re- 
strain the  lihertv  of  speech  or  of  the  press. 
State   v,  McKee,'  73  Conn.   18,  46  Atl.  409. 

49:  542 

1091.  The  publication  of  one's  picture, 
without  his  consent,  as  part  of  an  advertise- 
ment, is  in  no  sense  an  exercis'fe  of  the 
liberty  of  speech  or  of  the  press,  within  the 
meaning  of  those  terms  as  used  in  the 
Constitution.  Pavesich  v.  New  England  L. 
Ins.  Co.  122  Ga.  190,  50  S.  E.  68,  09:  101 
Religious  freedom. 

Of    Members    of    Benevolent    Society,    see 

Benevolent  Societies,  21,  42,  43. 
Prohibition       against       Giving       Christian 

Science       Treatment,       see      Christian 

Science. 
Reading  from  Bible    in    School,    Generally, 

see  Schools,  114,  119-128. 

1092.  That  an  act  was  done  as  a  matter 
of  religious  worship  only  will  not  protect 
one  from  the  consequences  of  an  act  which 
is  made  snbiect  to  a  penalty  under  the  law. 
Com.  V.  Plaisted,  148  Mass.  375,  19  N.  E. 
224,  2:  142 

1093.  The  constitutional  provision  secur- 
ing freedom  of  worship  were  not  designed  to 
prevent  the  adoption  of  reasonable  rules  for 
the  use  of  streets;  and  a  religious  body  can- 
not aA'ail  itself  of  these  provisions  as  an 
authority  to  take  possession  of  a  city  street, 
in  violntion  of  such  rules,  for  the  purpose 
of  public  worship  therein.  Id. 

1004.  Reading  the  Bible,  offering  prayer, 
and  singing  hymns  during  school  hours  in 
the  public  schools,  in  accordance  with  the 
usages  of  sectarian  churches,  is  an  infringe- 
ment of  the  constitutional  guaranty  of  re- 
ligious freedom. — especially  where  the  edn- 
cation  of  children  is  made  compulsory  by 
statute.  State  ex  rel.  Freeman  v.  Scheve. 
65  Neb.  853,  91  N.  W.  846,  59:  927 

10^5.  The  constitutional  guaranty  of  re- 
ligious freedom  is  not  violated  by  a  stat- 
ute requiring  the  furnishing  of  medical  at- 
tendnnce  to  minors,  where  the  Constitution 
provides  that  liberty  of  conscience  shall  not 
justify  practices  inconsistent  with  the 
safety  of  the  state.  People  v.  Piersnn.  176 
N.  Y.  201.  68  N.  E.  243,  63:  187 

10r)5a.  A  statute  prohibiting  labor  on  Sun- 
day is  not  in  conflict  with  the  Constitution 
of  the  Ignited  States  or  of  Maryland.  Jude- 
find  V.  State,  78  Md.  510,  28  Atl.  405. 

22:721 

lOn.'b.  A  constitutional  guaranty  of  re- 
ligions liberty  is  not  violated  by  a  statute 
prohibitin?  Sunday  labor.  "  Id. 

1095c.  The   prohibition   of  baseball   play- 


ing on  Sunday  by  Ohio  Rev.  Stat.  §  7032a, 
does  not  require  or  prohibit  any  religious 
observance,  and  therefore  does  not  violate 
the  right  of  conscience  in  matters  of  xeligion 
secured  to  the  individual  by  the  Ohio  Bill  of 
Rights,  §  7.  State  v.  Powell,  58  Ohio  St, 
324,  50  N.  E.  900,  41 :  854 

e.  Natural  Rights;  Implied  Guaranties. 

Violation  of,  by  Receiver  Acting  as  Referee, 

see  Receivers,  75. 
See     also     supra,     232,     353;     Privacy,     1; 

Statutes,  49-51. 

1096.  Acts  inconsistent  with  the  spirit  of 
the  Constitution  are  as  much  prohibited  by 
its  terms  as  are  acts  specifically  enumerated 
and  forbidden  therein.  McDonald  v.  Doust 
(Idaho)  81  Pac.  60,  C9:,220 

1097.  An  oppressive  and  unjust  law  is  not 
void  unless  it  contravenes  some  provision 
of  the  state  or  Federal  Constitution.  State 
V.  Harrington,  68  Vt.  622,  35  Atl.  515, 

34:100 

1098.  A  statute  cannot  be  declared  uncon- 
stitutional simply  because  it  may  be  wrong 
and  unjust  or  because  it  violates  the  spirit 
of  our  institutions  or  impairs  those  rights 
which  it  is  the  object  of  free  government  to 
protect.  Townsend  v.  State,  147  Ind.  624,  47 
N.  E.  19,  37:294 

1099.  The  courts  cannot  declare  a  statute 
unconstitutional  and  void  solely  on  the 
ground  of  unjust  and  oppressive  provisions, 
or  because  it  is  supposed  to  violate  the 
natural,  social,  or  political  rights  of  a 
citizen,  unless  such  injustice  is  prohibited 
or  such  rights  guaranteed  or  protected  by 
the  Constitution.  Burrows  v.  Delta  Transn. 
Co.  106  Mich.  582,  64  N.  W.»501,  29:  468 

1100.  No  natural  right  is  contravened  by 
making  a  railroad  company  liable  without 
regard  to  negligence  for  fires  set  by  loco- 
motive engines,  where  experience  has 
demonstrated  the  danger  of  fires  from  such 
sources.  Matthews  v.  St.  Louis  &  S.  F.  R. 
Co.  121  Mo.  298,  24  S.  W.  591,  25:  161 

[Aff'd  bv  the  Supreme  Court  of  the  United 
States  in  165  U.  S.  1.  41  L.  ed.  611,  17  Sup. 
Ct.  Rep.  243.1 

1101.  A  statute  providing  penalties  for 
breach  of  contract  cannot  be  held  unconsti- 
tutional merely  on  the  ground  that  it  is 
against  the  genius,  nature,  and  spirit  of  the 
government  and  general  principles  of  law 
and  reason.  Union  C.  L.  Ins.  Co.  v.  Chown- 
ing,  86  Tex.  654,  26  S.  W.  982,  24:  504 

f.  Guaranties  of  Justice. 

As  to  Guaranty  of  Right  to  Life,  Liberty 
and  Property,  and  Due  Process  of  Law 
as  to.  see  supra,  IT.  b. 

1102.  The  constitutional  provision  that 
"justice  shall  be  administered  freely  and 
without  purchase"  is  not  violated  by  a 
statute  authorizing  officers  to  tax  and  col- 
lect reasonable  fees  for  services,  to  create  a 
fund  out  of  which  their  salaries  are  to  be 
paid.  He"derson  v.  State  ex  rel.  Stout, 
137  Ind.  552,  36  N.  E.  257,  24:  46» 


640 


CONSTITUTIONAL  LAW,  IL  g,  1. 


1103.  The  constitutional  provision  that 
justice  i^hall  be  administered  openly  and 
without  purchase  is  not  violated  by  a  stat- 
ute requiring  payment  of  certain  moderate 
fees  by  parties  to  legal  proceedings,  al- 
though these  are  turned  into  the  treasury 
and  the  officers  paid  by  salary.  Northern 
Counties  Invest.  Trust  v.  Sears,  30  Or.  388. 
41  Pac.  931,  35:  188 

1104.  The  right  to  a  fair  trial  involved  in 
the  constitutional  provision  for  trial  by 
jury  is  not  infringed  by  a  statute  making 
the  costs  and  fees  payable  to  officers  and 
witnesses  in  a  criminal  case  depend  on  con- 
viction, where  this  provision  does  not  apply 
to  the  jury,  and  applies  to  a  justice  of  the 
peace  only  in  cases  where  his  power  is  mere- 
ly to  bind  over  the  accused  for  trial  in  a 
tribiuial  in  which  the  justice  has  no  voice. 
State  V.  Henley,  98  Tenn.  665,  41  S.  W.  352, 
1104.  39:  126 

1105.  An  order  staying  all  further  pro- 
ceedings in  an  action  until  the  costs  of  an 
appeal  are  paid  does  not  violate  constitu- 
tional guaranties  of  right  to  trial  by  jury, 
and  to  have  justice  freely,  without  sale. 
Knee  v.  Baltimore  City  Pass.  R.  Co.  87  Md. 
623.  40  Atl.  SrtO.  *  42:  363 

1100.  The  allowance  of  an  attorney's  fee 
in  addition  to  costs  that  would  otherwise 
be  allowed  by  law  to  successful  lien  claim- 
ants, in  pursuance  of  Colo.  Sess.  Laws 
1893.  chap.  117,  p.  325.  §  18,  which  provides 
for  such  allowance  only  to  plaintiffs,  is  in 
violation  of  Colo.  Pill  of  Rights.  §  6,  pro- 
viding that  courts  of  justice  shall  be  open  to 
every  person  and  that  right  and  justice  shall 
be  administered  without  sale,  denial,  or  de- 
lav.  Davidson  v.  Jennings,  27  Colo.  187,  60 
Pac.  354.  48:  340 

1107.  Requiriig  an  insurance  company  to 
pay  a  penalty  and  attorneys'  fees  if  com- 
pelled to  pay  a  loss  which  it  fails  to  pay 
within  the  time  specified  in  the  contract 
does  not  tend  to  prevent  a  resort  to  the 
courts,  in  contravention  of  a  constitutional 
requirement  that  all  courts  shall  be  onen. 
Union  C.  L.  Ins.  Co.  v.  Chowning.  86  Tex. 
6.54,  20  S.  W.  082,  24:  504 

g.  Impairing    Obligation    of    Contracts. 

1.  As  to  Rubject-lMatter. 

a.  In  General:  By  Statutes. 

(1)   Cenerally. 

As  to  Curative  Acts,  see  supra,  I.  b,  2.  6. 
As  to  Vested  Rights,  see  supra.  T.  c. 
Waiver  of  Right  to  Object,  see  Insolvency, 

25. 
By  Release  of  "Mortirnire.  see  IMortcrage.  122. 
.As  to  State's  Title  to  Water,  see  Waters.  .",6. 
See  also  supra.  110. 
For  Editorial  Notes,  see  infra.  III.  §§  9,  14. 

1108.  A  contract  valid  when  made  cannot 
be  rendered  invalid  by  a  general  statute 
subsoquentlv  passed.  Stephens  v.  Southern 
P.  Co.  100  Cal.  86,  41  Pac.  783.  20:  751 

1109.  A  statute  does  not  impair  the  obli- 
gation of  contracts  when  it  applies  to  tho.se 


contracts  only  which  are  made  subsequent- 
ly. Dagsrs  v'  Orient  Ins.  Co.  136  Mo.  382, 
38  S.  W.'"85,  35:  227 

1110.  The  inhibition  against  the  impair- 
ment of  contracts,  contained  in  U.  S.  Const, 
art.  1,  §  10.  is  not  applicable  to  Congress. 
Evans-Snider-Buel  Co.  v.  McFadden,  44  C. 
C.  A.  494,  105  Fed.  293,  58:  900 

1111.  The  obligation  of  a  contract  made 
subsequently  to  the  enactment  of  a  statute 
cannot  be  impaired  by  it.  within  the  mean- 
ing of  the  Federal  Constitution.  Corbin  v. 
Houlehan.  100  Me.  246,  61  Atl.  131,    70:  568 

1112.  The  provisions  of  the  Federal  Con- 
stitution prohibiting  the  impairment  of  the 
obligation  of  a  contract  do  not  apply  to 
contracts  which  are  not  valid.  West- 
minster Water  Co.  v.  Westminster,  98  Md. 
551,  56' Atl.  990,  64:  630 

1113.  The  obligation  of  a  contract  is  not 
impaired  by  the  repeal  of  a  law  under  which 
a  contract  for  years  was  made,  but  which 
did  not  authorize  a  contract  for  any  definite 
term;  and  the  contract  is  terminated  by 
such  repeal.  Synod  of  Dakota  v.  State.  2 
S.  D.  366.  50  N.'W.  632,  ^  14:418 

1114.  The  legislature  can  avoid  payment 
of  the  obligations  of  the  state  by  failure  or 
refusal  to  make  the  necessary  appropriation, 
although  that  body  cannot  impair  the  obli- 
iration  of  the  contract.  Carr  v.  State,  ex  rel. 
Du  Coctlosquet.  127  Ind.  204,  26  N.  E.  778, 

11:  370 

1115.  A  statute  making  proof  of  the  cost 
of  an  obligation  the  measure  of  the  credit- 
or's recovery,  instead  of  the  liability  of  the 
debtor  as  shown  by  the  terms  of  his  con- 
tract, is  unconstitutional.  People  v.  O'Brien. 
Ill  N.  Y.  1,  18  N.  E.  692,  2:  255 
Judgments. 

See  also  infra,  1209. 

For  Editorial  Notes,  see  infra,  ITT.  §  9. 

1116.  Judsrments  are  not  contracts,  with- 
in the  prohibition  by  the  Federal  Constitu- 
tion of  legislation  tending  to  imnair  con- 
tracts. Evans-Snider-Bucl  Co.  v.  McFadden, 
44  C.  C.  A.  404,  105  Fed.  293,  58:  900 

1117.  A  judgment  is  not  a  contract  within 
the  meaning  of  the  Federal  Constitution  for- 
bidding the  passage  of  laws  impairing  the 
obligation  of  contracts.  Livinjjston  v. 
Livingston.  173  N.  Y.  377,  66  N.  E.  123, 

Gl :  800 

1118.  A  judgment  upon  a  tort  is  not  a 
contract,  within  the  meaning  of  the  consti- 
tutional provision  against  impairing  the 
obligation  of  contracts.  Sherman  v.  Lang- 
ham.  92  Tex.  13,  40  S.  W.  140,  42  S.  W.  961, 

39:  258 
Exemptions. 

1110.  The  exemption  to  married  men  or 
heads  of  families  of  their  earnings  for 
personal  services  rendered  within  sixty  days 
next  preceding  the  levy  of  execution  by 
!7arnis1iinent  or  otherwise,  provided  by  Utah 
Sess.  Laws  1890.  §  7,  p.  99.  being  reasonable, 
and  directed  to  the  remedy,  and  not  the 
riffht.  does  not  impair  the  obligation  of  con- 
traf>ts  entered  into  prior  to  its  passage,  in 
violation  of  IT.  S.  Const,  art.  1,  §  10.  Kirk- 
man  v.  Bird.  22  Utah,  100.  61  Pac.  338, 

58:  669 


CONSTITUTIONAL  LAW,  H.  g,  1. 


641 


Appeal  bonds. 

1120.  Obligations  of  sureties  on  appeal 
bonds  are  not  contracts  within  the  constitu- 
tional protection  against  impairment  of 
obligations,  as  they  are  not  based  on  con- 
sent of  adverse  litigants,  but  are  assumed 
by  the  makers  of  such  bonds,  which  are  per- 
mitted, and  thereby  the  right  to  appeal  se- 
cured under  the  provisions  of  positive  law. 
"Mexican  Nat.  R.  Co.  v.  Mussette,  86  Tex. 
708,  26  S.  W.  1075,  24:  642 

1121.  Holding  an  appeal  bond  executed  as 
security  for  an  appeal  to  the  appellate  court, 
which  then  had  jurisdiction  in  such  cases, 
to  be  valid  after  the  transfer  by  statute  of 
such  jurisdiction  to  another  court,  does  not 
impair  the  obligation  of  a  contract,  as  the 
bond  is  made  in  view  of  the  known  power  to 
change   the   jurisdiction.  *<  Id. 

1122.  An  appeal  bond  is  protected,  by  the 
constitutional  provision  against  impairing 
the  obligation  of  a  contract,  from  any 
change  in  its  terms  or  obligation  by  virtue 
of  a  statute  changing  the  jurisdiction  of  the 
appellate  courts.  Schuster  v.  Weiss,  114 
Mo.  158,  21  S.  W.  438,  19:  182 
Marriage. 

Post  Nuptial  Agreement  as  to  Amount  Pay- 
able to  Wife  for  her  Maintenance,  see 
Divorce  and  Separation,  87. 

1123.  The  contract  of  marriage  is  not  a 
"contract.*  within  the  meaning  of  the  pro- 
vision in  the  Constitution  of  the  United 
States  prohibiting  states  from  impairing  the 
obligation  of  a  contract.  State  v.  Tutty,  41 
Fed  753,  7:  50 
License  of  attorney. 

1124  The  obligation  of  the  state's  con- 
tract witt  one  to  whom  it  grants  a  license 
to  practise  law  is  not  impaired  by  a  subse- 
quent statute  requiring  him  to  procure  a 
further  license  from  the  county  clerk  as  a 
means  of  compelling  him  to  pay  an  occu- 
pation tax.  Ex  parte  Williams,  31  Tex. 
Crim.  Rep.  262.  20  S.  W.  580,  21 :  783 

1125.  A  tax  upon  the  exercise  of  the 
profession  of  a  lawyer  is  not  unconstitu- 
tional as  impairing  the  obligation  of  a  con- 
tract. Odlin  V.  Woodruff,  31  Fla.  160,  12 
So.  227,  22:  699 
Contract  for  water. 

1126.  A  contract  giving  a  consumer  of 
water  the  right  to  draw  and  take  from  a 
canal  all  he  may  be  entitled  to  on  tender  or 
payment  of  the  amount  due  therefor,  if  the 
owner  of  the  canal  fail  or  refuse  to  comply 
with  the  contract,  is  not  protected  against 
legislative  interference  by  a  subsequent 
statute  prohibiting  such  acts  and  regulating 
the  distribution  of  water  from  sucb  canals, 
but  giving  a  remedy  for  the  enforcement  of 
the  right  to  receive  all  the  water  to  which 
the  contract  entitles  him.  "\^Tiite  v.  Farmers' 
Highline  Canal  &  R.  Co.  22  Colo'.  191,  43 
Pac.  1028,  31 :  828 
Taking  park  for  railroad. 

il27.  The  vested  rights  of  owners  abut- 
ting upon  a  public  park  dedica^d  with  the 
restriction  that  no  buildings  shall  be  erected 
upon  it,  fixed  by  the  acts  of  dedication,  the 
acceptance  of  the  city,  and  the  acquiescence 
of  the  public  and  abutting  owners,  cannot  be 
L.R.A.  Dig.— 41. 


changed  by  the  legislature  granting  the  city 
the  right  to  convey  such  land  for  railroad 
purposes,  as  such  action  would  be  an  un- 
constitutional impairment  of  such  rights. 
Chicago  V.  Ward,  169  lU.  392,  48  N.  E.  927, 

38:  849 
Completion  of  eminent  domain  proceeding. 

1128.  The  statutory  right  to  have  dam- 
ages for  land  the  fee  of  which  is  taken  for 
public  use  assessed  and  paid  in  money  is  a 
substantial  right  which,  after  the  proceed- 
ings have  progressed  so  far  that  the  fee  has 
passed,  cannot  be  impaired  by  the  passage 
of  a  statute  authorizing  the  abandonment 
of  the  land,  and  directing  that  the  fee  shall 
revest  in  the  former  owner,  and  the  fact 
thereof  be  considered  in  reduction  of  the 
damages  to  be  awarded.  Hellen  v.  Medford, 
188  Mass.  42,  73  N.  E.  1070,  69:  314 
Agreement  to  issue  county  bonds. 

1129.  After  an  election  by  a  county,  under 
authority  of  law,  to  ascertain  whether  it  will 
issue  bonds  in  aid  of  a  railroad,  and  after 
subscription  to  the  stock,  agreement  to  is- 
sue the  bonds  upon  performance  of  certain 
conditions  by  the  railroad  company,  and  ac- 
ceptance by  the  latter  of  the  agreement  and 
of  the  conditions,  there  is  a  valid  and  bind- 
ing contract  which  cannot  be  impaired  by  a 
subsequent  change  of  the  state  Constitution. 
Nelson  v.  Haywood  County,  87  Tenn.  781, 
11  S.  W.  885,  4:  648 
County  warrants. 

1130.  County  warrants  indorsed  "Not 
paid  for  want  of  funds,"  upon  which,  by 
Hill's  (Or.)  Ann.  Laws,  §  2465,  interest  is 
payable  at  the  legal  rate,  are  thereby  made 
contracts  on  which  the  rate  of  interest  can- 
not be  decreased  by  subsequent  statute. 
Seton  V.  Hovt,  34  Or.  266,  55  Pac.  967, 

43:  634 
Relief  against  trust. 

1131.  A  statute  relieving  purchasers  from 
a  trust  or  combination  to  raise  the  price  of 
food  products,  from  liability  to  pay  for 
their  purchases,  will  apply  to  purchases 
made  after  its  passage  under  a  continuing 
contract  previously  executed,  which  guaran- 
tees payment  on  the  15th  of  each  month  for 
goods  furnished  during  the  prior  month. 
Ford  v.  Chicago  Milk  Shipper's  Asso.  155 
111.  166,  39  N.  E.  651,  27:298 
Maintenance  of  bridge. 

1132.  A  statute  by  which  the  maintenance 
of  a  bridge  is  taken  upon  the  state  has  no 
element  of  a  contract,  and  gives  rise  to  no 
vested  rights  such  that  the  legislature  can- 
not afterwards  charge  the  expense  of  the 
bridge  upon  towns  especially  benefited 
thereby.  State  ex  rel.  Bulkeley  v.  Williams, 
68  Conn.  131,  35  Atl.  24,  421,  48:  465 
Charities. 

1133.  The  prohibition  against  impairing 
the  obligation  of  contracts,  contained  in  U.' 
S.  Const,  art.  1,  §  10,  applies  to  contracts 
establishing  charitable  trusts.  Cary  Library 
v.  Bliss,  151  Mass.  364,  25  N.  E.  92,      7:  765 

1134.  The  acceptance  by  a  town  of  a 
proposition  for  the  donation  of  a  fund  for 
the  establishment  of  a  public  library,  which 
contains  a  scheme  for  the  management  of 
the  fund  and  library  and  the  payment  of 


642 


CONSTITUTIONAL  LAW,  II.  g,  1. 


the  money  in  accordance  therewith,  consti- 
tutes a  contract  between  the  parties;  and 
the  scheme  cannot  afterwards  be  changed 
by  the  legislature  without  the  consent  of 
all  the  parties  to  the  contract, — at  least  not 
until  the  conditions  existing  at  the  time  the 
contract  was  made  become  so  changed  as  to 
make  it  impracticable  or  inconvenient 
further  to  carry  out  the  original  scheme. 

Id. 
Religious  societies. 

1135.  An  act  providing  that  the  majority 
of  a  congregation  may  determine  to  which 
branch  of  a  divided  religious  society  they 
shall  belong,  and  making  such  determination 
conclusive  as  to  property  held  in  trust  for 
such  congregation,  is  unconstitutional  and 
void  as  impairing  the  obligation  of  con- 
tracts. Finley  v.  Brent,  87  Va.  103,  12  S.  E. 
228,  11:214 

(2)   As  to  Corporate  Rights,  Property,  and! 
Liabilities. 

See  also  infra,  1188,  1190. 

For  Editorial  Notes,  see  infra,  HI.  §  9. 

1136.  Statutes  granting  extension  to 
corporate  charters,  passed  after  the  adop- 
tion of  an  act  making  all  grants  to  corpora- 
tions subject  to  amendment,  will  be  subject 
to  that  act,  although  the  original  charters 
contained  exemptions  which  were  irrevo- 
cable. Deposit  Bank  v.  Daviess  County,  102 
Ky.  174,  39  S.  W.  1030,  44  S.  W.  1131, 

44:  825 
Curia's;  defective  acknowledgment  of  charter. 

1137.  A  statrte  curing  the  defective 
acknowledgment  of  a  corporate  charter,  by 
which  existing  personal  liability  of  the 
corporators  on  a  contract  of  the  company 
was  defeated,  does  not  impair  any  contract 
oblijration  of  the  other  party  to  the  contract. 
Shields  v.  Clifton  Hill  Land  Co.  94  Tenn. 
123.  28  S.  W.  668,  26:  509 
Extent  of  recovery  against. 

1138.  The  Pennsylvania  act  of  1868  (P.  L. 
53)  limiting  the  amount  to  be  recovered  in 
actions  against  railroad  companies  and 
common  carriers  for  negligence  to  53,000  in 
case  of  personal  injuries  and  $5,000  in  case 
of  death,  providing  that  "upon  the  accep- 
tance of  the  provisions  hereof  by  any  car- 
rier or  corporation  the  same  shall  become 
a  part  of  its  act  of  incorporation,"  does  not 
constitute  a  contract  with  a  corporation,  and 
is  abrogated  by  the  new  Constitution  of 
Pennsylvania,  art.  3.  §  21.  providing  that  no 
statute  shall  limit  the  amount  of  recovery 
for  injuries  resulting  in  death,  or  for  in- 
juries to  persons  or  propertv.  Pennsvlvania 
R.  Co.  V.  Bowers.  124  Pa.  *183,  16  Atl.  836, 

2:  621 
Dissolution  of  corporation. 

1139.  A  statute  which  defeats  the  right  of 
action  against  a  corporation  by  its  disso- 
lution does  not  impair  the  obligation  of 
contracts,  where  it  provides  for  the  admin- 
istration of  the  assets  for  the  benefit  of 
creditors  and  strtrkholders.  Nelson  v.  Hub- 
bard. 96  Ala.  2.38,   11   So.  428,  17:375 

1140.  A     statute    empowering    the     state 


auditor  to  institute  proceedings  for  the  dis* 
solution  of  insurance  companies  which  upon 
examination  seem  to  be  insolvent,  or  in  such 
condition  as  to  render  their  further  contin- 
uance in  business  hazardous  to  the  insured 
or  to  the  public,  and  to  apply  for  an  injunc- " 
tion  to  prevent  their  further  proceeding 
with  the  business,  and  for  a  receiver,  is  not 
unconstitutional  as  impairing  the  obliga- 
tion of  contracts.  Republic  L.  Ins.  Co.  v. 
Swigert,  135  111.  150,  25  N.  E.  680,  12:  328 
Stockholder's  liability. 
See  also  supra,   1141. 

1141.  A  statute  authorizing  assessments 
on  fully  paid-up  stock  of  a  corporation  is 
an  unconstitutional  invasion  of  property 
and  contract  rights  as  applied  to  the  owners 
of  pre-existing  paid-up  stock.  Enterprise 
Ditch  Co.  V.  Moffit,  58  Neb.  642,  79  N.  W. 
560,  45:  647 

1142.  The  contract  rights  of  a  creditor  of 
a  corporation,  who  has  brought  an  action 
against  a  stockholder  to  enforce  his  stat- 
utory double  liability,  for  his  own  benefit, 
as  authorized  by  statute,  are  not  uncon- 
stitutionally impaired  oy  the  enactment  of 
a  statute  requiring  all  creditors  to  unite 
in  one  suit  against  all  stockholders  for  eq- 
uitable distribution  of  the  double  liability 
fund  among  the  creditors,  and  abating  pend- 
ing actions  under  the  former  law.  Miners' 
&  M.  Bank  v.  Snyder,  100  Md.  57,  59  Atl. 
707,  68:  312 
Regulating  rates. 

1143.  It  is  not  a  violation  of  a  contract 
with  a  plank-road  company,  created  by  its 
act  of  incorporation,  to  enact  that  no*  toll 
gate  can  be  kept  or  toll  demanded  within 
the  corporate  limits  of  a  city,  where  such 
corporation  had  accepted  the  provisions  of  a 
statute  amending  its  charter,  which  made 
the  privileges  of  the  company  the  same  as 
those  of  other  companies  under  the  general 
law.  Snell  v.  Chicago,  133  111.  413,  24  N.  E. 
532,  8:858 

1144.  A  charter  specification  of  rates 
which  it  shall  be  lawful  for  a  turnpike  com- 
pany to  charge,  subject  to  a  certain  increase 
or  decrease  if  necessary  to  keep  the  com- 
pany's dividends  within  certain  limits,  does 
not  constitute  an  irrevocable  contract  be- 
tween the  state  and  the  corporation,  but  is 
merely  an  indication  that  such  rates  are 
supposed  to  be  reasonable,  without  preclud- 
ing the  subsequent  exercise  of  legislative 
power  to  change  the  rates.  Winchester  & 
L.  Turnp.  Road  Co.  v.  Croxton,  98  Ky.  739, 
34  S.  W.  518,  33:  177 

1145.  The  legislature  may  confer  upon  a 
railroad  company  the  exclusive  power  to  fix 
its  rates  for  the  transportation  of  passen- 
gers and  freight  within  a  certain  maximum; 
and  a  subsequent  attempt  by  the  legisla- 
ture to  fix  such  rates  is  invalid  as  the  im- 
pairment of  the  obligation  of  a  contract. 
Pinirree  v.  ISTichicran  C.  R.  Co.  118  Mich. 
314,  76  N.  W.  635,  53:  274 

1146.  The  power  of  railroad  commission- 
ers to  make  a  schedule  of  reasonable  maxi- 
mum rates  does  not  impair  the  obligation 
of  the  contract  of  a  railroad  company,  un- 
der the  Illinois  act  of  18.'>2.  which  authorizes 


CONSTITUTIONAL  LAW,  IL  g,  1. 


643 


.ts  board  of  directors  to  establish  rates  of 
toll  from  time  to  time,  but  also  provides 
that  the  company's  by-law's  shall  not  be 
repugnant  to  the  Constitution  and  laws  of 
the  state.  Chicago,  B.  &  Q.  R.  Co.  v.  Jones, 
149  111.  361,  37  N.  E.  247,  24:  141 

1147.  It  cannot  be  presumed,  without  the 
clearest  language  indicating  such  an  in- 
tention, that  parties  to  a  contract  antici- 
pated the  enactment  of  an  unconstitutional 
law,  or  contracted  upon  such  assumption; 
and  therefore  a  contract  between  street 
railroad  companies,  to  make  no  change  in 
rates  of  fare  so  long  as  the  rates  allowed 
by  law  upon  a  certain  date  shall  be  re- 
ceived will  terminate  by  force  of  its  owm 
limitation  when  a  statute  is  passed  reduc- 
ing such  rates.  Buffalo  East  Side  Street  R. 
Co.  V.  Buffalo  Street  R.  Co.  Ill  ^.  Y.  132,  19 
N.  E.  63,  2:  384 

1148.  A  statute  making  it  unlawful  for 
street  railroad  companies  in  a  certain  city 
to  charge  the  rates  of  fare  then  received 
does  not  impair  the  obligation  of  a  contract 
between  two  of  the  companies  operating 
street  railroads  in  that  city,  by  which  they 
have  agreed  not  to  change  the  rates  without 
the  consent  of  each  other.  Id. 
Taxes  and  assessments. 

See  also  Taxes,  248,  252. 

For  Editorial  Notes,  see  infra,  III.  §  9. 

1149.  The  obligation  of  a  contract  is  not 
impaired  by  the  taxation  of  a  special  fran- 
chise of  a  corporation.  People  ex  rel.  Met- 
ropolitan Street  R.  Co.  v.  State  Bd.  of  Tax 
Comrs.  174  N.  Y.  417,  67  N.  E.  69,  63:  884 

11.50.  Charters  granting  exemption  from 
taxation,  passed  after  the  enactment  of  a 
general  law  which  provides  that  all  char- 
ters subsequently  enacted  shall  be  subject 
to  amendment  or  repeal,  may,  unless  a  con- 
trary intent  was  plainly  expressed  therein, 
be  amended  or  repealed  at  the  pleasure  of 
the  legislature,  so  as  to  deprive  the  corpo- 
ration of  the  exemption.  Deposit  Bank  v. 
Daviess  County,  102  Ky.  174,  39  S.  W.  lO.SO. 
44  S.   W.   113i,  44:  825 

'1151.  A  charter  exempting  a  corporation 
from  taxes  so  long  as  it  has '  a  specified 
amount  of  property  in  the  state  consti- 
tutes a  contract  which  cannot  be  abrogated 
by  the  state,  and  which  is  not  subject  to 
a  general  provision  of  the  statutes  making 
all  charters  subject  to  alteration,  suspen- 
sion, and  repeal.  State,  Singer  Mfg.  Co. 
Prosecutor  v.  Heppsnheimer  (N.  J.  Err.  & 
App.)  58  N.  J.  L.  633,  34  Atl.  1061,      32:  643 

1152.  Consent  in  writing  by  banks  to  be 
governed  by  the  provisions  of  a^  statute 
fixing  the  rate  of  taxation  which  the  state 
agrees  shall  be  in  lieu  of  all  other  taxation 
upon  the  banks  does  not  effect  an  irrevo- 
cable contract,  where  the  statute  expressly 
provides  that  it  shall  be  subject  to  the  pro- 
visions of  another  law  making  all  grants 
to  corporations  subject  to  amendment  at 
the  pleasure  of  the  legislature.  Deposit 
Bank  v.  Daviess  County,  102  Ky.  174,  39 
S.  W.  1030,  44  S.  W.  1131,  44:  825 

1153.  A  grant  of  exemption  from  taxation 
for  improvement  of  the  streets  occupied  by 
its   tracks,   made   by   the    legislature   to    a 


street  railway  company,  is  a  mere  privilege 
subject  to  revocation  at  the  pleasure  of  tae 
legislature,  if  no  acceptance  of  its  terms 
or  provisions  ia  necessary  to  make  it  effec- 
tual. Rochester  v.  Rochester  R.  Co.  182  N. 
Y.   99,  74   N.   E.  953,  70:  773 

11.54.  A  legislative  grant  to  an  existing 
street  railway  company  of  exemption  from 
taxation  for  improvement  of  the  streets 
occupied  by  its  tracks,  not  based  on  any 
consideration,  is  subject  to  revocation  at  the 
pleasure  of   the   legislature.  Id. 

115.5.  An  enlargement  of  the  liability  of 
a  street  railway  company  for  paving  a 
street  is  not  unconstitutional,  where  the 
company's  rights  were  acquired  subject  to 
Tex.  Const.  1895,  art.  1,  §  17,  providing  that 
all  privileges  and  franchises  shall  be  sub- 
ject to  legislative  control,  and  that  there 
shall  be  no  irrevocable  or  uncontrollable 
grant  of  special  privileges  or  immunities. 
Storrie  v.  Rouston  City  Street  R.  Co.  92 
Tex.  129,  46  S.  W.  796,  44:  716 

1156.  The  obligation  of  previous  contracts 
of  subscription  to  a  foreign  building  and 
loan  association  doing  business  within  the 
state  is  not  impaired  by  Ky.  Stat.  §  4228, 
imposing  an  annual  tax  of  2  per  cent  on 
the  annual  gross  receipts  of  all  such  asso- 
ciations. Southern  Bldg.  &  L.  Asso.  v.  Nor- 
man. 98  Ky.  294,  32  S.  W.  9.52,  31:41 
Matters  as  to  carriers  generally. 

See  also  supra,   1145-1148. 

1157.  Contracts  concerning  interstate 
transportation  must  be  resarded  as  made 
upon  the  basis  and  with  the  understanding 
.that  changes  in  the  law  applicable  to  them 
may  be  made  by  Congress;  and  there  is  no 
vested  right  in  the  law  as  it  existed  at  the 
time  thev  were  made.  Fitzgerald  v.  Grand 
Trunk  R.  Co.  03  Vt.  169,  22  Atl.  76,      13:  70 

1158.  The  provision  of  Ga.  Civ.  Code,  §§ 
2317,  2318,  that  one  of  two  or  more  con- 
necting carriers  which  fails,  on  applica- 
tion, to  trace  and  give  information  of  the 
time,  place,  and  manner  of  loss  or  injury, 
to  goods  shipped,  shall  be  liable  for  the 
value  of  the  goods  lost,  damaged,  or  de- 
stroyed, in  the  same  manner  as  if  the  loss, 
damajre,  or  destruction  occurred  on  its  line, 
notwithstandinsr  a  provision  in  the  contract 
of  shipment  relieving  each  carrier  from  re- 
sponsibility on  delivery  to  the  next  carrier 
in  sood  order, — is  not  an  impairment  of  the 
obligation  of  a  contract  of  shipment  en- 
tered into  after  the  enactment  of  such 
statute.'  Central  of  Ga.  R.  Co.  v.  Murphey, 
116  Ga.  863,  43  S.  E.  26.5,  60:  817 
Restricting  sale  of  tickets. 

1159.  The  obligation  of  contracts  is  not 
impaired  as  to  tickets  thereafter  isued,  by 
a  statute  restricting  the  sale  thereof  with- 
out a  certificate  of  authority  from  the  car- 
rier. Burdick  v.  People,  149  111.  600,  36  N. 
E.  948,  24:  152 
Railroad  companies  generally. 

For  Editorial  Notes,  see  infra,  ITT.  §  9. 

1160.  Mere  legislative  authority  given  a 
railroad  to  receive  subscriptions  to  stock 
from  municipal  corporations,  for  which  no 
consideration  is  given  and  which  there  has 
been  no  attempt  to  exercise,  is  not  a  con- 


644 


CONSTITUTIONAL  LAW,  II.  g,  1. 


tract,  but  may  be  revoked  at  any  time. 
Wilke3  Coiinty  v.  Call,  123  N.  C.  308,  41 
S.  E.  481,  44:  252 

1161.  Compelling  railroad  companies  to 
make  a  connecting  switch  where  railroads 
intersect  does  not  violate  their  charter 
rights  merely  because  there  is  no  reserva- 
tion of  the  power  to  make  such  requirement. 
Jacobson  v.  Wisconsin,  M.  &  P.  E..  Co.  71 
Minn.  519,  74  N.  W.  893,  40:  389 

1162.  A  statute  permitting  a  foreign  rail- 
road corporation  to  extend  its  road  through 
the  statCj  subject  to  the  restrictions  pre- 
scribed by  its  charter  for  its  government 
within  the  state  of  its  domicil,  when  ac- 
cepted, constitutes  a  contract  which  will 
preclude  the  state  from  subsequently  re- 
quiring it  to  become  domesticated  as  a  con- 
dition to  its  continued  enjoyment  of  the 
privilege.  Com.  v.  Mobile  &  O.  R.  Co.  23 
Ky.  L.  Rep.  784,  64  S.  W.  451,  54:  916 
Railroad's  liability  for  fires. 

See  also  supra,  1172. 

1163.  A  statute  making  a  railroad  com- 
pany liable  for  damages  caused  by  fire  from 
a  locomotive  does  not  impair  the  obligation 
of  a  contract  in  its  charter,  which  merely 
authorizes  the  use  of  steam  or  of  animal 
power  or  mechanical  power  in  operating  the 
road.    Matthews  v.  St.  Louis  &  S.  F.  R.  Co. 

,121  Mo.  298,  24  S.  W.  591,  25:161 

fAflF'd  by  the  Supreme  Court  of  the  United 
States  in  165  U.  S.  1,  41  L.  ed.  611,  17  Sup. 
a.  Rep.  243.] 

1164.  A  contract  made  by  a  railroad  char- 
ter is  not  impaired  by  a  statute  making  the 
company  liable  for  fires  caused  by  its  en< 
gines  or  the  act  of  its  servants  on  its  right 
of  way,  where,  although  the  original  char- 
ter was  not  subject  to  amendment  or  re- 
peal, the  company  accepted  an  amendment 
the  effect  of  which,  under  general  laws  then 
in  force,  was  to  make  the  charter  subject 
to  amendment,  alteration,  or  repeal.  Me- 
Candless  v.  Richmond  &  D.  R.  Co.  38  S.  C. 
103,  16  S.  E.  429,  18:  440 
Street  railway  companies. 

See  also  supra,  1147,  1148,  1153-1155;  Tax- 
es, 248. 
For  Editorial  Notes,  see  infra.  III.  §  9. 

1165.  A  contract  between  a  street  rail- 
way company  and  a  city  to  run  cars  of  the 
best  modern  style  and  construction  is  not 
impaired  by  a  statute  making  additional  re- 
quirements in  respect  to  the  cars  for  the 
protection  of  emplovees.  State  v.  Hoskins, 
58  Minn.  35,  59  N.  W.  545,  25:  759 

1168.  An  absolute  right  of  a  corporation 
to  use  the  street  railway  tracks  of  another 
corporation  cannot  be  burdened  by  a  sub- 
sequent statute  so  as  to  make  the  exercise 
of  the  right  depend  on  the  consent  of 
abutting  owners.  Tngersoll  v.  Nassau  Elec. 
R.  Co.  157  N.  Y.  453,  .52  N.  E.  545,  43:  236 

1167.  The  extension  of  the  limits  of  a 
municipality  over  a  road  on  which  street 
railway  tracks  have  been  laid  under  author- 
ity of  the  county  will  make  such  road  sub- 
ject to  an  existing  ordinance  forbidding  the 
tearing  up  of  streets  without  consent  of  the 
municipal  authorities,  and  no  contract  be- 
tween the  county  and  the  railway  company 


is  thereby  impaired  so  far  as  the  ordinance 
merely  requires  the  tearing  up  of  streets  to 
be  under  reasonable  police  restrictions. 
Westport  V.  MulhoUand,  158  Mo.  86,  60  S. 
W.  77.  53:  442 

Telephone  companies. 
For  Editorial  Notes,  see  infra.  III.  §  9. 

1168.  The  acceptance  of  the  privileges 
granted  by  laws  of  the  state  to  a  telephone 
company,  and  permission  to  use  streets  duly 
given  by  a  municipality,  followed  by  the 
expenditure  of  money  by  the  corporation  in 
valuable  improvements,  constitutes  a  con- 
tract which  neither  state  nor  municipality 
can  impair  or  destroy,  unless  the  power  to 
do  so  is  reserved  in  the  grant  itself  or  in 
the  Constitution.  Michigan  Teleph.  Co.  v. 
St.  Joseph,   121   Mich.   502,  80  N.  W.  383, 

47:87 

1169.  By  the  passage  of  an  ordinance  au- 
thorizing the  establishment  of  a  telephone 
system  in  a  city,  and  its  acceptance  by  the 
company,  and  its  expenditures  thereunder, 
a  contractual  relation  was  created  between 
the  company  and  the  city,  which  became  a 
vested  right  that  could  not  be  impaired  by 
subsequent  action  of  the  city,  directly  or 
indirectly,  annulling  it  for  purposes  not  pub- 
lic, and  for  purposes  of  a  personal  or  pri- 
vate nature.  Northwestern  Teleph.  Exch. 
Co.  V.  Anderson,  12  N.  D.  585,  98  N.  W.  706, 

65:  771 
1170.-  An  ordinance  of  a  municipal  corpo- 
ration granting  a  telephone  company  the 
right  to  use  its  streets  for  the  erection  of 
poles  and  overhead  lines,  under  conditions 
as  to  permits  and  directions  where  the  same 
shall  be  placed,  when  accepted  and  acted 
upon  by  the  company,  is  a  contract  which 
the  municipality  cannot  unreasonably  or  ar- 
bitrarily repeal  or  amend  so  as  to  impair 
rights  acquired  under  it.  Northwestern 
Teleph.  Exch.  Co.  v.  Minneapolis,  81  Minn. 
140,  83  N.  W.  527,  86  N.  W.  69,  53:  175 

Insurance  companies. 
See  also  supra,  1140,  1204. 

1171.  The  legislature  may  provide  that 
no  breach  of  condition  in  an  insurance  pol- 
icy shall  avoid  it,  as  to  an  insurer  not  In- 
jured thereby,  without  interfering  with  any 
constitutional  right  of  contract,  or.  as  to 
future  contracts,  impairing  their  obligation, 
since,  insurance  companies  being  the  crea- 
tures of  the  legislature,  it  may  prescribe 
limitations  in  relation  to  forfeiture  of  their 
contracts.  McGannon  v.  Michigan  Millers' 
Mut.  F.  Ins.  Co.  127  Mich.  636,  87  N.  W. 
61,  54:  739 

1172.  The  obligation  of  a  contract  of  fire 
insurance  made  at  a  time  when  a  railroad 
company  was  by  statute  liable  for  fires 
communicated  by  its  engines  is  not  impaired 
by  a  subsequent  amendment  of  the  statute 
restricting  the  liability  of  the  railroad  com- 
pany in  effect  to  the  difference  between  the 
loss  and  the  amount  of  insurance  on  the 
property,  as  the  parties  to  that  contract 
cannot  limit  the  right  of  the  legislature  to 
change  the  statutorv  liabilitv.  Leavitt  v. 
Canadian  P.  R.  Co.  90  Me.  153,  37  Atl.  886. 

38:  152 


CONSTITUTIONAL  LAW,  U.  g,  1. 


645 


Water  companies. 

For  Editorial  Notes,  see  infra,  III.  §  9. 

1173.  A  charter  giving  a  corporation  a 
right  to  convey  water  from  a  certain  pond 
for  the  purpose  of  supplying  villages  with 
pure  water,  but  giving  no  right  to  take  or 
use  it  for  the  purpose  of  propelling  machin- 
ery, and  nowhere  expressly  giving  an  ex- 
clusive right,  or  in  terms  prohibiting  a  char- 
ter to  a  rival  corporation,  does  not  consti- 
tute a  contract  so  as  to  prevent  the  legisla- 
ture from  afterwards  chartering  a  rival  cor- 
poration. Rockland  Water  Co.  v.  Camden 
&  R.  Water  Co.  80  Me.  544,  15  Atl.  785, 

1:388 

1174.  An  .unconstitutional  impairment  of 
the  franchise  of  an  existing  water  company, 
though  it  is  not  an  exclusive  one,  is  made 
by  N.  Y.  Laws  1894,  chap.  294,'vhich  pro- 
vides that  a  village  establishing  its  own 
system  of  waterworks  may  impose  rates  for 
fire  protection  on  all  real  property  abutting 
on  the  mains  or  within  200  feet  of  the  hy- 
drants, or  on  such  real  property  so  abutting, 
or  within  such  distance  as  the  boards  may 
deem  beneficial,  upon  which  real  property 
the  water  is  not  used  by  the  owners  or  oc- 
cupants for  domestic  or  manufacturing  pur- 
poses, since  this  statute  would  authorize 
the  taxation  of  the  company's  property  to 
pay  for  competing  municipal  waterworks, 
and  also  authorize  such  a  discrimination 
against  the  company's  patrons  as  would  ab- 
solutely destroy  its  business.  Skaneateles 
Waterworks  Co.  v.  Skaneateles,  161  N.  Y. 
154,  55  N.  E.  562,  46:  687 
Electric  light  companies. 

For  Editorial  Notes,  see  infra.  III.  §  9. 

1175.  An  ordinance  granting  to  an  elec- 
tric light  company  the  exclusive  privilege  or 
supplying  a  city  and  its  inhabitants  with 
light  is  not  a  contract  within  the  protection 
of  U.  S.  Const,  art.  1,  §  10,  providing  that 
no  state  shall  pass  any  law  impairing  the 
obligation  of  contracts,  where  the  city  has 
no  power  to  grant  an  exclusive  franchise, 
either  under  its  charter  or  the  general  law 
governing  miinicipalities.  Clarksburg  Elec- 
tric Light  Co.  V.  Clarksburg,  47  W.  Va.  739, 
35  S.  E.  994,  50:  142 
Gas  companies. 

1176.  No  contract  between  a  city  and  the 
holder  of  its  bonds  is  created,  with  respect 
to  the  continued  application  of  the  revenues 
of  gas  works  to  a  sinking  fund  by  an  ordi- 
nance which,  merely  for  the  protection  of 
the  city,  imposed  on  the  trustees  of  the  gas 
works  "the  obligation  of  paying  money  Into 
the  sinking  fund,  where  no  pledge  was  made 
to  the  loan  holders.  Bailv  v.  Philadelphia, 
184  Pa.  594,  39  Atl.  494,  *  39:  837 
Corporation   for   educational   purposes. 

1177.  The  provision  of  a  charter  of  a 
public  corporation  created  for  public  pur- 
poses, puch  as  that  of  education,  whereby 
fines,  forfeitures  and  penalties  accruing  to 
a  certain  county  are  granted  to  the  corpo- 
ration, is  not  a  contract  within  the  consti- 
tutional protection,  but  may  be  changed  at 
the  will  of  the  legislature.  Watson  Semi- 
nary V.  Pike  County  Ct.  149  Mo.  57,  50  S. 
W.  880,  45:  675 


1178.  The  acceptance  by  an  incorporated 
school,  of  a  legislative  act  absolute  in  terms, 
and  containing  no  reservation  of  a  right  to 
alter,  modify,  or  repeal  it,  which  grants  to 
the  corporation  lands  which  have  been  se- 
questered by  the  legislature  for  school  pur- 
poses, to  be  held  in  trust  for  the  use  of  the 
school  forever,  will,  in  the  absence  of  a 
constitutional  limitation  securing  the  right 
to  future  legislatures  to  modify  or  repeal 
the  act,  constitute  an  executed  grant,  with- 
in the  protection  of  the  United  States 
Constitution,  forbidding  states  to  pass  laws 
impairing  the  obligation  of  contracts;  and 
the  state  cannot  afterwards  recall  the  grant 
and  make  a  difi"erent  disposition  of  the 
lands;  and  the  fact  that  the  grant  was 
without  consideration  is  immaterial.  Frank- 
lin County  Grammar  School  v.  Bailey,  62 
Vt.  467,  20  AtL  820,  10:  405 

6.  By  Change  of  Decisions. 

For  Editorial  Notes,  see  infra,  III.  §  9. 

1179.  A  decision  by  the  highest  court  of 
a  state  overruling  a  prior  decision  holding 

a  statute  constitutional  does  not  impair  the 
obligations  of  a  contract  entered  into  after 
the  prior  and  before  the  later  decision. 
Storrie  v.  Cortes,  90  Tex.  283,  38  S.  W.  154, 

35:  666 

1180.  An  innovation  or  change  in  the  law 
by  a  judicial  decision  does  not  impair  the 
obligation  of  an  existing  contract,  where 
neither  the  Constitution,  nor  a  statute,  nor 
any  enactment  that  has  the  force  of  the 
law,  is  applied  to  affect  the  contract.  Ray 
V.  Western  Pennsylvania  Natural  Gas  Co. 
138  Pa.  576,  20  AtL  1065,  12:  290 

1181.  Decisions  on  which  the  parties  to  a 
contract  rely  do  not  constitute  a  part  of  it 
so  as  to  exempt  the  contract  from  the  opera- 
tion of  a  subsequent  decision  declaring  a 
different  rule  upon  the  same  subject  and 
overruling  the  earlier  decisions.  Allen  v. 
Allen,  95  Cal.  184,  30  Pac.  213,  16:  646 

1182.  A  change  of  decision  as  to  the  va- 
lidity of  a  certain  kind  of  mortgage,  made 
after  some  instruments  of  the  kind  were 
made,  whereby  they  are  upheld,  does  not 
impair  the  obligation  of  a  contract  between 
the  mortgagor  and  a  creditor  who  gave  him 
credit,  when  under  the  existing  decisions 
such  mortgages  would  be  held  void.  Brown 
V.  Grand  Rapids  Parlor  Furniture  Co.  16 
U.  S.  App.  221,  7  C.  C.  A.  225,  58  Fed.  286. 

22:  817 

1183.  The  construction  of  a  statute  of  de- 
scents established  by  the  decisions  of  the 
courts  at  the  time  of  a  quitclaim  deed  by 
heirs  claiming  under  the  statute  becomes  a 
part  of  the  contract,  and  must  govern  the 
rights  of  the  parties  as  against  a  different 
construction  thereafter  adopted  by  over- 
ruling the  former  decisions.  Haskett  v. 
Maxey,  134  Tnd.  182,  33  N.  E.  358,       19:  379 

1184.  Overruling  decisions  of  the  state 
court  of  last  resort  which  were  in  force  at 
the  time  a  mortgage  was  given  by  a  mar- 
ried woman,  and  which  upheld  its  validity 
under  the  statutes,  does  not  affect  the  right 


646 


CONSTITDTIONAL  LAW,  11.  g.  2. 


of  the  mortgagee.    Farrior  v.  Xew  England 
Mortg.  S.  Co.  y2  Ala.  176,  9  So.  532, 

12:  856 

2.  As  to  Remedies. 

For  Editorial  Xotes,  see  infra,  III.   §  9. 

1185.  Any  change  or  limitation  of  a  rem- 
edy, which  does  not  materially  abridge  the 
right,  does  not  impair  the  obligation  of  the 
contract.  Kirkman  v.  Bird,  22  Utah,  100, 
61   Pac.  338,  58:  669 

1186.  General  remedies  afforded  by  state 
jurisprudence  and  practice,  entirely  aside 
from  anything  contained  in  a  contract,  nev- 
er constitute  any  part  of  its  obligation,  and 
may  be  changed  from  time  to  time.  Bever- 
ly V.  Barnitz,  55  Kan.  466,  42  Pac.  725, 

31:74 
[Rev'd  by  the  Supreme  Court  of  the  United 
States  in  103  U.  S.  118,  41  L.  ed.  93,  16  Sup. 
Ct.  Rep.  1042.] 

1187.  A  remedy  agreed  upon  in  a  contract 
itself,  with  the  sanction  of  the  state  law, 
is  indistinguishable  from  the  obligation,  and 
constitutes   a  part   of  it.  Id. 

1188.  The  provisions  of  N.  Y.  Laws  1850, 
chap.  140,  §  48,  that  the  repealing  of  a  char- 
ter shall  not  impair  any  remedy  existing 
against  the  corporation,  its  directors,  or  of- 
ficers, upon  a  liability  previously  incurred, 
is  a  contract  protected  by  the  provisions  of 
the  Federal  Constitution.  People  v.  O'Brien, 
111  X.  y.  1,  18  N.  E.  692,  ^  2:  255 

1189.  A  statutory  provision  that  the  re- 
lease of  one  shall  not  discharge  another  is 
not  unconstitutional  as  applied  to  cases 
where  the  liability  of  the  stockholder  was 
incurred  before,  but  the  proceedings  under 

■  the  insolvent  act  were  had  and  the  corpora- 
tion discharged  subsequent  to,  its  passage. 
Willis  V.  St.  Paul  Sanitation  Co.  48  Minn. 
140,  50  N.  W.  1110,  •  16:  281 

Service  of  process. 

1190.  A  foreign  company  executing  a  pow- 
er of  attorney  to  the  secretary  of  state,  in 
accordance  with  Tenn.  act  1875,  authoriz- 
ing him  to  accept  service  of  process,  does 
not  thereby  make  a  contract  with  the  state 
which  precludes  the  state  from  authorizing 
service  to  be  made  on  agents  of  the  com- 
panv.  Connecticut  ^lut.  L.  Ins.  Co.  v.  Sprat- 
ley,' 99  Tcnn.  322,  42  S.  W.  145,  44:  442 
Curing  defective  acknowledgment. 

See  also  supra,   128,   1137. 

1101.  A  statute  curing  the  defective  ac- 
knowledgmoTit  of  a  deed  of  trust  and  the 
fonsequeiit  dofpct  in  the  record  of  the  deed 
is  inofTectual  to  give  it  priority  over  a 
judgment  lien  which  had  been  acquired  be- 
fore the  defect  Avas  cured,  as  the  displace- 
ment of  the  judgment  creditor's  lion  would 
impair  the  obligation  of  his  contract.  ISTor- 
r-hants'  Bank  v.  Ballon.  08  Va.  112.  32  S 
Iv  481.  44:  ^0{] 

Redemption. 

11*^2.  A  statute  abrogating  a  right  whicl' 
a  mortgagee  has  at  the  time  the  mortjagr 
is  taken,  of  a  fixed  and  definite  norirxl  fm 
the  foreclosure  of  the  mortgagor's  equity 
by  providing  that,  in  case  of  an  attachment 


of  the  mortgagor's  interest  by  a  creditor 
who  files  a  bill  in  equity,  the  right  of  re- 
demption shall  not  expire  pending  such  pro- 
ceedings by  any  attempted  foreclosure  of 
the  mortgage,  is  unconstitutional  as  im- 
pairing the  obligation  of  contract.  Phlnney 
V.  Phiuney,  81  Me.  450,  17  Atl.  405,    4:  348 

1193.  The  right  of  redemption  from  a  tax 
sale  is  governed  by  the  law  in  force  at  the 
date  of  the  sale;  and  a  statute  extend- 
ing the  time  is  unconstitutional  as  impair- 
ing the  obligation  of  the  contract.  Hull  v. 
State  ex  rel.  Rollins,  29  Fla.  79,  11  So.  97, 

16:  308 

1194.  A  change  in  the  remedy  on  fore- 
closure of  a  mortgage  by  Kan.  act  1893, 
making  it  unnecessary  to  have  an  appraise- 
ment fixing  the  amount  to  be  obtained  on 
the  sale,  and  hastening  the  time  for  sale 
in  certain  cases,  but,  on  the  other  hand,  ex- 
tending for  a  year,  at  most,  the  time  when 
the  purchaser  can  get  a  deed,  during  which 
the  mortgagor  is  entitled  to  possession,  but 
for  which  he  must  pay  interest  on  the  sale 
price  in  case  of  redemption, — does  not  im- 
pair the  obligation  of  a  contract,  as  it  mere- 
ly changes  the  general  remedy,  and  the 
mortgage  in  that  state  is  a  mere  security, 
vesting  no  title  and  giving  no  right  of  pos- 
session either  before  or  after  breach.  Bev- 
erly V.  Barnitz,  55  Kan.   466,  42  Pac.  725, 

31:74 
[Rev'd  by  Supreme  Court  of  the  United 
States  in  163  U.  S.  118,  41  L.  ed.  93,  16 
Sup.  Ct.  Rep.  1042.] 

1195.  A  statute  reducing  the  rate  of  in- 
terest to  be  paid  on  redemption  from  a  fore- 
closure sale  does  not  impair  the  obligation 
of  a  contract,  -where  the  rate  to  which  it 
is  reduced  is  not  lower  than  the  rate  of  in- 
terest agreed  upon  in  the  mortgage.  Rob- 
ertson V.  Vancleave,  129  Ind.  217,  231,  26  N. 
E.  899,  15:  68 

1196.  The  time  for  redemption  of  land 
from  a  mortgage  or  absolute  deed  given  as 
security  cannot  be  extended  by  a  subsequent 
statute,  as  this  would  change  the  contract 
rights  and  obligations  of  the  parties.  Allen 
V.  Allen,  95  Cal.  184,  30  Pac.  213,       16:  646 

1197.  A  statute  extending  the  time  for  re- 
demption upon  the  sale  of  mortgaged  premi- 
ses impairs  the  obligation  of  the  contract 
made  by  a  pre-existing  mortgage.  State, 
Thomas  Cruse  Sav.  Bank  v.  Gilliam,  48 
Mont.  109.  45  Pac.  661,  33:  556 
Rev'g  on  Rehearing,  18  Mont.  94,  44  Pac. 
394,  31:721 
Notice  of  foreclosure. 

1198.  A  provision  for  notice  of  sale  under 
a  deed  of  trust,  which  is  included  in  the  con- 
tract, cannot  be  changed  by  a  subsequent 
statute  providing  for  difi"erent  notice  in  all 
such  cases.  International  Bldg.  &  L.  Asso. 
v.  Hardy,  86  Tex.  610.  26  S.  W.  497,  24:  284 
Attachment. 

Vested  Right  in  Lien  of,  see  supra,  159. 
'^ee  also  supra,   1192. 

1199.  A  statute  modifying  the  remedy  by 
attachment,  so  that  an  attachment  will  be 
dissolved  by  a  general  assignment  of  the  de- 
Tendant  for  creditors  within  ten  days  there- 
after, 18  unconstitutional  as  applied  to  con- 


CONSTITUTIONAL  LAW,  III. 


647 


tracts  made  when  the  right  of  attachment 
was  absolute  or  was  not  subject  to  this  con- 
tingency. Peninsular  Lead  &  C.  Works  v. 
Union  Oil  &  P.  Co.  100  Wis.  488,  76  ISi.  W. 
359,  42:  331 

Taxes  and  tax  deeds. 
See  also  supra,  1193. 

1200.  The  obligation  of  a  prior  mortgage 
contract  is  not  impaired  by  a  statute  pro- 
viding for  the  assessment  to  the  mortgagee 
of  taxes  which  had  previously  been  paid  by 
the  mortgagor,  and  permitting  the  mortga- 
gor, in  case  he  pays  such  taxes,  to  dedrlct 
the  amount  from  accrued  interest  on  the 
indebtedness,  and,  if  it  exceeds  the  interest 
due,  then  from  the  principal,  even  though 
the  effect  of  the  latter  would  be  to  ex- 
tinguish a  part  of  the  interest-bgaring  debt. 
Detroit  Common  Council  v.  Renta,  91  Mich. 
78,  51  N.  W.  787,  16:  59 

1201.  A  law  which  requires  the  lessee  of 
a  railroad  to  deduct  the  taxes  levied  on  the 
road  from  the  rent  stipulated  to  be  paid 
under  the  lease,  and  pay  the  same  to  the 
state,  is  not  void,  even  with  reference  to 
existing  leases,  as  impairing  the  obligation 
of  a  contract,  where  both  lessor  and  lessee 
and  the  rent  due  are  proper  subjects  for  tax- 
ation. Vermont  &  C.  R.  Co.  v.  Vermont  C. 
R.  Co.  63  Vt.  1,  21  Atl.  262,  10:  562 

1202.  A  tax  deed  made  in  pursuance  of 
a  sale  of  property  for  a  delinquent  tax,  un- 
der an  act  which  provides  that  such  deed 
shall  be  conclusive  evidence  of  the  regulari- 
ty of  the  assessment,  except  for  fraud,  is 
a  contract  with  the  state  that  the  deed 
shall  so  far  remain  conclusive  evidence  of 
title  in  the  grantee  therein;  and  a  subse- 
quent act  of  the  legislature,  making  such 
deed  only  prima  facie  evidence  of  such  reg- 
ularity, is  void  because  it  impairs  the  ob- 
ligation of  the  contract.  Tracy  v.  Reed, 
38  Fed.  69,  2:  773 
Time  of  payment. 

1203.  The  time  of  payment  of  a  pecuniary 
obligation  is  a  material  provision  in  the  con- 
tract, and  a  creditor  cannot  be  compelled  by 
statute  to  accept  payment  in  advance.  Peo- 
ple V.  O'Brien,  111  N.  Y.   1,  18  N.  E.  692, 

2:  255 
Limitation  of  actions. 
Vested  Right  in,  see  supra,   160-162. 
See  also  supra,  1196,  1197. 
For  Editorial  Notes,  see  infra.  III.  §  14. 

1204.  A  statute  shortening  the  time  of  an 
insurance  company's  immunity  from  suit 
to  forty  instead  of  ninety  days,  but  with- 
out extending  the  period  of  the  statute  of 
limitations,  affects  the  remedy  merely,  and 
does  not  impair  any  contract  right  arising 
out  of  the  issuance  of  a  policy  before  the 
statute  was  changed.  Jones  v.  German  Ins. 
Co.  110  Iowa,  75,  81  N.  W.  188,  46:  860 
Liens. 

1205.  A  statute  requiring  a  notice  to  be 
given  of  an  intention  to  file  a  lien,  the  right 
to  which  already  existed,  does  not  impair 
the  obligation  of  a  contract.  Best  v.  Baum- 
gardner,  122  Pa.  17,  15  Atl.  691,  1:  356 

1206.  A  law  making  a  drainage  assess- 
ment a  lien  upon  land  superior  to  the  liens 
of  existing  encumbrances  is  not  unconstitu- 


tional as  a  violation  of  the  obligation  of 
contracts,  or  a  devesting  of  vested  rights. 
Wabash  E.  R.  Co.  v.  East  Lake  Fork  S.  D. 
Dist.   134  111.  384,  25  N.  E.  781,         10:  285 

1207.  A  mechanics'  lien  given  by  statute 
is  liable  always  to  be  modified,  altered,  or 
repealed,  by  the  same  power  that  created 
it.  Being  only  a  means  for  enforcing  the 
payment  of  a  debt  arising  from  the  per- 
formance of  a  contract,  it  is  not  a  vested 
right,  but  may  be  taken  away  without  im- 
pairing the  obligation  of  the  contract. 
Hanes  v.  Wadey,  73  Mich.  178,  41  N.  W.  222, 

2:498 

1208.  Giving  a  mechanics'  lien  superiority 
over  a  prior  mortgage,  as  to  the  building  or 
improvement  added  by  the  lienor,  is  not  un- 
constitutional as  impairing  the  obligation  of 
a  contract.  Wimberley  v.  Mayberry,  94 
Ala.  240,  10  So.  157,  14:  305 

120U.  The  restriction  of  the  lien  or  charge 
of  a  judgment  against  the  estate  or  person 
of  the  judgment  debtor,  to  six  years  from 
its  rendition,  by  Wash,  act  March  6,  1897, 
and  the  prohibition  of  the  renewal  of  such 
judgment  for  more  than  one  year  after  the 
act  takes  effect,  so  far  as  the  act  applies 
to  pre-existing  contracts,  is  an  unconstitu- 
tional impairment  of  their  obligation.  Bett  - 
man  v.  Cowley,   19  Wash.  207,  53  Pac.  53. 

40:  815 
Assignment  to  evade  law. 

1210.  An  assignment  for  the  purpose  of 
evading  the  effect  of  exemption  laws  be 
ing  unlawful  before,  as  well  as  after,  the 
passage  of  an  act  prohibiting  it,  the  act  af- 
fects only  the  remedy;  and  its  application 
to  the  case  of  debts  incurred  prior  to  its 
passage  does  not,  therefore,  impair  the  ob- 
ligations of  the  contracts.  Bishop  v.  Mid- 
dleton,  43  Neb.  10,  61  N.  W.  129,  26:  445 
Effect  of  assignment  for  creditors. 

For  Editorial  Notes,  see  infra,  III.  §  9. 

1211.  The  remedy  on  promissory  notes 
and  warrants  of  attorney  by  statutes  in 
force  at  the  time  that  they  were  made, 
which  authorized  the  holder  to  enter  judg- 
ment, issue  execution,  and  levy  upon  and 
sell  the  debtor's  property  notwithstanding 
any  assignment  for  creditors  which  he  might 
make  more  than  sixty  days  after  their  is- 
sue, constitutes  an  essential  part  of  the 
contracts  or  securities,  and  cannot  be  taken 
away  by  a  subsequent  statute  which  at- 
tempts to  provide  that  all  levies  or  other 
processes  shall  be  dissolved  by  such  an  as- 
signment. Second  Ward  Sav.  Bank  v. 
Schranck,  97  Wis.  250,  73  N.  W.  31,  39:  569 


III.  Editorial    Notes. 

As  to  Prohibition  against  Taking  Private 
Property  for  Public  Use 
without  Compensation, 
see  Eminent  Domain,  V.  § 
18. 

As  to  Recognition  of  Judgment  of  Other 
State  under  Full  Faith 
and  Credit  I*rovi'?i(in.  see 
Judgment,  VIII.  §§  26  29. 


648 


CONSTITUTIONAL  LAW,  III.  (Ed.  Notes.) 


As  to  Enactment,  Entitling,  and  Construc- 
tion of  Statutes,  see  Stat- 
utes, rv. 

Constitutional  Eight  to  Jury  Trial,  see 
Jury,  V.  §  2. 

Constitutional  Right  to  Vote,  see  Elections, 
V.  n  1,  2. 

a.  In  general;    adoption;    construction. 

§  I.  Generally. 

Unconstitutionality  of  statute  as  defense 
against  mandamus  to  com- 
pel its  enforcement.  47: 
512. 

Incorporation  of  common-law  principles  in 
constitutional  law.  2 : 
655.* 

Authority  of  legislature  to  remove  munici- 
pality from  trusteeship. 
13:  217 ;♦    16:  695. 

Power  of  legislature  to  impose  burdens 
upon  municipalities  and  to 
control  their  local  adminis- 
tration and  property.  48: 
465. 

Local  self-government  in  Rhode  Island.  50: 
330. 

§  2.  Adoption;     amendment;     construction. 

Power  of  court  to  determine  the  question 
of  adoption.    15:  524. 

Condition  as  to  vote  by  people  to  adopt 
statute.     23:  113. 

Power  to  cure  unconstitutional  statute  by 
amendment.     60:  564. 

Rules  in  construction  of  Constitution.  3: 
390.* 

Reluctance  of  court  to  annul  a  statute.  13: 
304.» 

§  3.  Self-executing  provisions. 

Generally.     16:  281. 

Prohibitions   generally.     16:  282. 

Cases  as  to  taking  property  for  public  use. 
16:  283. 
As  to  jury.     16:  283. 

Exemptions  may  be  regarded  as  pro- 
hibitions. 16:  284. 

Taxation.     16:  284. 

Appropriations.    16:  285. 

Stockholders'   liability.     16:285. 

§  4.  Separation  of  powers;  independence  of 
departments. 

Separation  of  departments  of  government. 
1:  361;'  3:  53,*  210;*  4: 
79.* 

Power  of  judiciary  over  co-ordinate  depart- 
ment.     3:  53.* 

Legislative  authority  to  abridge  power  of 
courts  to  punish  for  con- 
tempt.    36:  254. 

Legislative  divorce  as  conflicting  with  judi- 
cial power.     18:  95. 

Constitutional  power  of  courts  or  judges 
to  appoint  officers.  16: 
737. 

§  5.  Delegation  of  powers. 

Maxim  that  delegated  authority  cannot  be 
redelegated.     11:  582.* 

Strict  construction  of  redelegated  powers. 
11 :  583.* 


Right  of  legislature  to  delegate  to  munic- 
ipal corporations  powCT 
to  make  by-laws  and  ordi- 
nances.    11:582.» 

b.  Constitutional  rights  and  protection. 

§  6.  In  general. 

Protection  of  private  rights  from  interfer- 
ence by  public.     18:  543. 
Decision   against  constitutional  right   as  a 
nullity     subject     to     col- 
lateral attack.    39:  449. 
Constitutionality  of  Sunday  laws.     22:  721. 
As  to  restricting  right  to   carry  weapons. 

14:  600. 
Searches  and  seizures;    how  far  prohibited. 

11:  378.* 
Giving  monopoly  of  business.     53:  763. 
Right  of  state  to  require  service    of    wit- 
ness    without     compensa- 
tion.    39:  115. 
§  7.  Privileges  and  immunities;    equal  pro- 
tection. 
As  to  General  or    Special    Legislation,    see 

Statutes,  IV.  §  7. 
Corporations    as      persons      within      14th 
Amendment.  10:  129;* 

14:  585;    19:  224;    69:  330. 
Corporations  as  citizens  under  14th  Amend- 
ment.     14:  580;     60:  330. 
As  to  Status  of  Corporations,  General- 
ly, see  Corporations,  Vin. 
§  2. 
What  are  privileges  and  immunities  of  citi- 
zens.     1:  56.* 
Equal   privileges   and   immunities.     14:  579. 
Equal  accommodations.     14:  579. 
Who  entitled  to  equal  privileges.     14: 

579. 
Extent  of  right  generally.     14:  580. 
Traveling.     14:  580. 
As  to  sexual  relations.     14:  580. 
Right  to  vote  and  hold  office.     14:  580. 
Right  to  be  jurors  and  witnesses.     14: 

581. 
School  privileges.  '14:  581. 
Right  to  practise  professions.     14:  581. 
Commercial     and     business     privileges, 

generally.     14:  582. 
Property  rights.     14:  582. 
Taxation.     14:  583. 
As  to  litigation.     14:  583. 
Equal  protection.     14:  583. 
General  rules.     14:  583. 
Police  power.     14:  584. 
As  to  jurors  and  witnesses.     14:  584. 
Rights  of  aliens.    14:  583. 
As  to  property.     14:  584. 
As  to  punishments  and  liabilities.     14: 

584. 
As  to  courts  and  proceedings.     14:  585. 
Corporations.     14:  585. 
Constitutional     equality     in      the    United 
States  in  relation  to  cor- 
porate   taxation.     60:  321. 
Validity  of  class  legislation.     6:621;*     21: 

789. 
Unjust  discrimination.    14:  585. 

As  to  attorneys'  fees.     14:  586. 
Constitutionality  of  statute  limitini(  hours 
of  labor.     65 :  42. 


CONSTITUTIONAL  LAW,  111.  (Ed.  Notes.) 


649 


Consideration  by  Federal  Supreme  Court  of 
questions  relating  to  equal 
protection  in  reviewing 
judgment  of  state  court. 
63:  581. 

Question  relating  to  equal  protection  as 
Federal  question.     62:  531. 

Constitutionality  of  discrimination  against 
women   in  police     regula- 
tions.    49:  111. 
In    granting    licenses    to    sell    liquors. 

49:  111. 
In  excluding  women  from  employments 
and  places  of  business. 
49:  111. 
In  restricting  freedom,  society,  or  right 
to  live  in  locality.  49: 
115. 

§  8.  Due  process.  ' 

As  regulated  by  state  law.    2:  655.* 

Due  process  defined.     2:  258,*  655.* 

What  constitutes.  5:359;*  11:224;*  13: 
305.* 

Necessity  of  judicial  proceedings.     2:  656.* 

Necessity  of  notice  and  hearing.  2:  657;* 
3:  194;*  11:  225.* 

Constitutionality  of  statute  limiting  hours 
of  labor.     65:  40. 

Vested  right  in  defense  of  statute  of  limi- 
tations.    45:  609. 

Necessity  of  notice  of  lunacy  proceedings  to 
alleged  lunatic.    23:  737. 

What  service  of  process  is  sufficient  to  con- 
stitute due  process  of  law. 
50:  577. 

Validity  of  personal  judgment  rendered 
upon  constructive  service 
of  process.     16:  231. 

State  revenue  laws.    2:  657.* 

Assessment  or  tax  matter.    2:  656.* 

Extending  boundaries  of  municipality.  27: 
741. 

Seizure  and  production  of  papers.     29:  819. 

Denial  of,  making  judgment  void.     39:  449. 

Protection  against  being  forced  to  give 
evidence  to  be  used 
against  one's  self  in  a  civil 
case.    29:  811. 

Corporations  as  persoiis  within  14th 
Amendment.  10:129;* 
14:  585;  19:  224;  60:  330. 
As  to  Status  of  Corporations,  General- 
ly, see  Corporations,  VIII. 
§2. 

As  a  Federal  question.     62:  530. 

Consideration  by  Federal  Supreme  Court  of 
questions  relating  to-,  in 
reviewing  judgment  of 
state  court.    63:  581. 

Statute  authorizing  commitment  of  minors 
to  reformatories  without 
conviction  of  crime.  16: 
691. 

§  g.  Impairment  of  obligation. 

Power  of  Congress  to  impair  obligation. 
11:246.* 

Impairment  by  state  Constitution.    10:  406.* 

Change  of  decision  of  state  court  as  im- 
pairing obligation  of.  16: 
646. 

To   what   contracts  rule  applies.      10:  405.*  ' 


Of  judgment  as  a  contract.     17:  Oil. 

Change  of  interest  -on   judgment.     17: 
612. 

Contract  of  state.       13:  169.* 

Land  grants  as  contracts.     10:  406.* 

Corporate  charters  as  contracts.  2:  257;* 
10:  406.* 

Privilege    of   using    streets    as    a   contract. 
50:  142. 
Use  of  streets  for    railroad    or    street- 
railway   tracks.     50:  143. 
Water  pipes  and  mains.     50:  145. 
Gas  pipes.     50:  146. 

Telegraph  and  telephone  lines.    50:  146. 
Electric  light  poles  and  wires;  subway. 

50:  147. 
Other  uses.  50-  147. 
Necessity   that   privilege    be    accepted 

and  acted  upon.    50:  148. 
When  privilege  invalid  in  whole  or  in 

part.     50:  150. 
Capacity  in  which  municipality  acts  in 
granting,  revoking,  or  im- 
pairing the  privilege.     50: 
150. 

Restrospective  statutes  taking  away  vested 
rights.     10:  407.* 

Effect  of  stay  laws  as.     1 :  358.* 

Effect  of  state  insolvency  laws.     1 :  359.*   . 

Effect  of  exemption  laws.     1:  359.* 

Statute  extending  mortgagor's  right  of 
possession  on  foreclosure 
of  pre-existing  mortgages. 
31:721. 

Impairment  of  remedy.     1:  358.* 

Effect  of  new  and  less  convenient  or  more 
tardy  remedy.    1:  357.* 

Alteration  or  abolition  of  remedy.     1 :  359.* 

Impairing  rights  by  procrastinating  remedy. 
4:  349.* 

Consideration  by  Federal  Supreme  Court 
of  questions  relating  to,  in 
reviewing  judgment  of 
state  court.    63:  578. 

By  police  regulation  of  electric  companies. 
31 :  804. 

Corporation  taxation  as  affected  by  con- 
tract clause  in  Federal 
Constitution.     60:  33. 

Statute  limiting  hours  of  labor.    65:  42. 

§  lo.  Police  power. 

The  term  "police  power"  defined.     13:  131.* 

Where  lodged.     10:  135.* 

Extent  of  its  exercise.     6:  622;*  10:  135.* 

What  is  a  legitimate  exercise  of.     13:  132.* 

Limit  of,  over  religious  organization.  2: 
110.* 

Private  interests  subservient  to  public  in- 
terests.    8:  854.* 

Rights  of  corporations  subject  to.     9:  35.* 

To  restrict  business,  in  case  of  ticket  brok- 
ers.   24:  152. 

Over  condition    of   buildings.     16:  400. 

Protection  of  health.     10:  136.* 

Protection  of  health  of  employees.    32:  853. 

Statute  limiting  hours  of  labor.     65:  44. 

As  to  dead  animals.    38:  330. 

Municipal  abatement  of  nuisance.     36:  609. 

As  Affecting  Commerce,  see  Commerce,  V. 

Police  regulation  of  electric  companies. 
31 :  804. 


650 


CONSTITUTIONAL  LAW,  IH.  (Ed.  Notes. 


Limitations  in  state  Constitutions.    31: 
804. 
Impairment  of  obligation    of    con- 
tracts.   31:804. 
Deprivation    of    property    without 
due  process    of    law.    31: 
805. 
Class  legislation.     31:  805. 
Limitations    in     Federal    Constitution. 
31:  805. 
Statutes  requiriiig  electric  wires  to 
be  put     underground.     31: 
806. 
Statutes    imposing   penalties   upon 
telegraph     companies     for 
not   transmitting   and   de- 
livering  messages   proper- 
ly.   31 :  807. 
Statutes        regulating      telephone 
prices  and  requiring  serv- 
ice on  equal  terms  to  all. 
31:807. 
Statutes  imposing  license   fees   on 
telegraph  companies.     37: 
808. 
Regulation  of  dairy  produce;    oleomargarine 

act.     1 :  52.* 
§  II.  Contingent  interests. 
Legislative  power  to  defeat  contingent  in- 
terests   in    property.     79: 
247. 
Power  of  legislatures  to  change  or  destroy 
estates  by  dower,  curtesy, 
or    similar     estates.      19: 
256. 
As  to  dower.     19:  256. 
As   to  curtesy.      19:  257. 
Rights  in  wife's  personal  property.    19: 
259. 
§  12.  Disposal  of  private  property. 
Constitutionality    of    private     statutes     to 
authorize.      16:  251. 
Limitations  of  the  power.     16:  252. 
Distinction  between  those  sui  juris  and 
those    who    are   not.      16: 
253. 
Giving   power   to    cruardian   of   infants. 

16:  254. 
Non  compos  mentis.     16:  254. 
As  to  decedents'  estates.     16:  254. 
§  13.  Restrictions    on    contracts  and    busi- 
ness. 
Constitutionality     of     statutes     restricting 
contracts      and      business. 
21:  780. 
Testing  statutes  bv  the  unwritten  Con- 
stitution.   21:789. 
Class  legislation.     21:  790. 
Freedom  of  contract.     21 :   792. 
Contracts   molded  by  statute.     21:793. 
Police  restraints    upon    business.      21: 

794. 
American  legislation  on  kintlrcd  topics. 
21:  796. 
Laws  concerning  hours  of  labor  or 
a    dav's     labor.      21:  790; 
65:  44. 
Statutes    resrulating    time    of    pay- 
ment of  wages.    21:797. 
Statutes   bearing    upon    mode     of 
pavment     of    wages.      21 : 
797. 


Statutes    forbidding  or  regulating 

contracts  for  the  labor  of 

children    or    women.    21 : 

797. 

Statutes  against  "company  stores." 

21:  797. 
Statutes  giving  a  priority  to  claims 
of    certain     laborers.     21: 
797. 
Miscellaneous    laws    affecting    the 
relations  of  employers  and 
the  employed.    21:  798. 
English   legislation   and   opinions.     21 : 

798. 
Restrictions    placed    by    courts    upon 
freedom   of  contract.     21: 
798. 
Literature.  21 :  799. 
Legal    restrictions    on    department    stores. 

48:  261. 
§14.  Retroactive    statutes;    imposing    new 

liability;  reviving  old  liability. 
General  rule   against  construing  statute  so 
as  to  give  it  a  retrospec- 
tive effect.     10:407;*    12: 
50.* 
Constitutionality   of   statutes   making  rail- 
road companies  absolutely 
liable  for  damage  by  fires 
set    out    by    them    or  for 
stock  killed  by  them,  irre- 
spective     of      negligence. 
25:  161. 
Fires.     25:  161. 
Killing  stock.    25:  162. 
Constitutionality  of  laws  charging  the  ex- 
pense of  police  regulations 
on  the  business  to  be  regu- 
lated.    16:  380. 
Constitutionality   of    statute    legalizing   an 
invalid    private    contract. 
22:  379. 
Under  Federal  Constitution.    22 :  379. 
Retroactive    laws    and     vested     rights. 

22:  380. 
Due  process  of  law.    22:  382. 
Application   of   the   rules   to    acknowl- 
edgments.    22:382. 
Application    of   the    rules   to   contracts 
unenforceable      because 
usurious.    22:  384. 
Conflict   with   judicial   power.     22:  385. 
Rights  of  third  persons  cannot  be  im- 
paired.    22:  385. 
Statutes  legalizing  municipal  contract.     27: 

696. 
Vested  right  in  defense  of  statute  of  limi- 
tations.    45:  609. 
Civil   actions.     45:  609. 

Actions  involving  title  to  real  or 
personal  property.  45:  609. 
Actions  not  involving  title  to  real 
or  personal  property.    45: 
610. 
Revival  of  appeal  or  writ  of  error. 
45:  614. 
Criminal  actions.     45:  614. 
Constitutionality     of     retroactive      statute 
creating    right    of    action 
or  of  set-off  on  account  of 
past   acts   or  transactions. 
52:  934. 


CONSTRUCTION-CONTAGIOUS  DISEASE. 


651 


Improvement  acts.     52:  935. 
Divorce.    52:  937. 

Miscellaneous    statutes    creating   rights 
of  action  against  individ- 
uals .  or    private    corpora- 
tions.      52:  938. 
Stattites      oreatiiig     right     of      action 
against    municipal    corpo- 
rations.   52:  940. 
§  15.  Ex  post  facto  laws. 
What  are.     3:  181.* 
Unconstitutionality   of.      1:  632.* 
Constitutionality   of   statute   providing   for 
increased  punishment    be- 
cause of  prior  conviction. 
34:  399. 
§  16.  Regulations   affecting    employers   and 

employees. 
Restricting   contracts   between   master   and 
servant.     14:325;    21:789. 
Statutes  requiring  wages  to  be  paid  in  law- 
ful money.     28:  273. 
Statutes    regulating    time    of    payment    of 

wages.     28:  344. 
Statutes  to  secure  safety   and  comfort  of 

employees.      25:  759. 
Statutes  to  secure  health  of  employees.    32: 

853. 
Statutes  limiting  hours  of  labor,  generally. 

65:  38,  42. 
§  17.  Fixing  tolls,  rates,  or  prices. 
Legislative     power    to    fix    tolls,    rates,    or 
prices.     33:  177. 
The  general  doctrine.     33:  177. 
Wliether  limited  to  monopolies  or  not. 

33:  178. 
To  what  applicable.     33:  178. 

Elevators  and  warehouses.    33:  178. 
Carriers.       33:  179. 

In  general;   railroads.    33:  179. 
Street  railways.  33:  180. 
Canals.     33:  180. 
Ferries.     33:  180. 
Toll  roads.     33:  180. 
Bridges.     33:  181. 
Wharves.    33:  181. 
Telegraphs.     33:  181. 
Telephones.     33:  181. 
nas.    33:  181. 
Water.    33:  181. 
Bread.    33:  182. 
Mills.      33:  182. 
'       Personal  services.     33:  182. 

Care  or  salvage  of  logs.     33:  182. 
Delegation  of  power.     33:  182. 
Extent   and   limits   of  power.     33:  183. 
In  general.     33:  18.3. 
Judicial   interference.     33:  183. 
Tests    of   reasonableness.      33:  185. 
Inequality    or    discrimination'     33: 

i86. 
Contract  exemptions.    33:  186. 


Of  Guaranty,  see  Guaranty,  I. 

Of  Insurance  Contract,  see  Insurance,  III.  d. 

Of  Statutes,  see  Statutes,  II. 

Of  Wills,  see  Wills,  III. 


CONSTRUCTION. 

Of  Constitution,  see  Constitutional  Law,  I. 

a,  3. 
Of  Contract,  see  Contracts,  II. 
Of  Corporate  Charter,  see  Corporations,  69- 

71. 
Of  Deeds,  see  Deeds,  11. 


CONSTRUCTION  COMPANY. 

As   Instrument  of  Railroad  Company,   see 
Corporations,  841,  847. 


CONSTRUCTIVE  POSSESSION. 
See  Adverse  Possession,  I.  k. 

♦-»♦ 

CONSTRUCTIVE  TRUSTS. 
See  Trusts,  I.  d. 

■   #  >  » 

CONSULS. 

Jurisdiction  over,  see  Courts,  446. 

See  also  Diplomatic  and  Consular  Officers. 


CONTAGIOUS  DISEASE. 

Of  Animals,  see  Animals,  I.  e;  Carriers,  SG6; 
Commerce,   12,   13;   Damages,  140. 

As  Excuse  for  Breach  of  Promise,  see  Breach 
of  Promise,  8-11. 

Communication  of,  to  Passenger,  see  Car- 
riers, 123. 

Ejection  of  Passenger  Who  Has,  see  Car- 
riers, 357. 

Duty  of  Carrier  Removing  Passenger  with, 
see  Carriers,  426. 

Quarantine  against,  see  Health,  17-20. 

Delegation  of  Power  to  Quarantine  against, 
see  Constitutional  Law,  215. 

Contract  Tending  to  Spread,  see  Contracts, 
444. 

Judicial  Notice  as  to,  see  Evidence,  113-119. 

Of  Trees,  Opinion  Evidence  as  to,  see  Evi- 
dence, 1432. 

False  Representations  as  to,  see  Evidence, 
1605. 

As  to  Epidemic,  see  Health,  II. 

Power  of  Health  Board  or  Municipal  Au- 
thorities as  to,  see  Health,  8,  9,  12,  13. 

Hosnital  for,  see  Hospitals,  1-5. 

Action  against  Husband  for  Communication 
of,  see  Husband  and  Wife,  235. 

Enjoining  Execution  of  Contract  for  Care  of 
Leper,  see  Injunction,  75. 

Liability  for  Exposing  Servant  to,  see  Mas- 
ter and  Servant,  59. 

Liability  for  Communication  of,  by  Em- 
ployee, see  Master  and  Servant,  633. 

Liability  of  Citv  as  to,  see  Municipal  Cor- 
porations, 451,  452. 

Contributory  Negligence  of  Person  Oatoh- 
ing,  see  Negligence,  243. 


652 


CONTEMPT.  1.  a. 


Allegation  as  to,  see  Pleading,  320. 
Proximate    Cause    of    Contraction    of,    see 

Proximate  Cause,  27. 
Teacher's    Salary   while  ,  Schools   Closed   on 

Account  of,  see  Schools,  45-47. 
Title  of  Statute  as  to,  see  Statutes,  164. 
Question  for  Jui\v  as  to,  see  Trial,  501. 
See  also  Smallpox. 

Editorial  Notes. 

As  to  Protection  against,  see  Health,  V. 
Liability  for  communicating  or  exposure  to. 

19:  725. 
Of  animals,  regulations  as  to.     26:  638. 


♦-•-♦ 

CONTEMPT. 

1.  What  Constitutes. 

a.  In  General. 

b.  Charge  against  Judge;  Publication 

as  to  Pending  Case. 

c.  Disobedience. 
II.  Procedure. 

III.  Power  as  to. 

a.  Of  Notary  Public. 

b.  Of  Court. 

IV.  .Judgment;   Punishment. 
V.  Editorial  Notes. 

Appeal  from  Order  as  to,  see  Appeal  and  Er- 
ror, 46. 

Review  of  Decision,  see  Appeal  and  Error, 
524,  1118. 

Punishment  of,  as  Invasion  of  Liberty  of  the 
Press,  see  Constitutional  Law,  1089. 

Proceedings  for,  as  Former  Jeopardy,  see 
Criminal  Law,  172. 

Governors  Power  to  Pardon  for,  see  Crimi- 
nal Law,  255. 

Liability  of  Justice  for  Failure  to  Enter 
Sentence  on  Docket,  see  Justice  of  the 
Peace,  8. 

Striking  Out  Disrespectful  Petition,  see  Rec- 
ords, 8. 


I.  What   Constitutes. 
a.  In  General. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

1.  An  act  which  is  indifferent,  merito- 
rious, or  only  the  assertion  of  an  imdonbted 
right  of  the  party,  does  not  become  a  crim- 
inal contempt  merely  because  it  is  adjudged 
such  bv  a  court.  Fx  parte  Senior.  'M  Fbi. 
1.  19  So.  652.  .32:  1,33 

2.  Courts  have  not  unlimited  power  to 
detonnine  what  shall  bo  regarded  as  con- 
tempts, but,  in  the  absence  of  Valid  statu- 
tory specifications,  they  must  be  governwl 
bv  the  cnmTnon  law.  People  o\  rel.  Connor 
v.  Stapleton.  18  Colo.  568.  ,33  Pac.  167. 

23:  787 

3.  A  statutory  pnunioratinn  of  a'-ts  which 
shall  constitute  contempts  of  court  does  not 
deprive  the  court  of  juiisdiction  over  otlier 
eontcmpts.  Id. 

4.  Acts  and  omissions  deemed  to  be  con- 
tempts of  the  authority  of  courts,  under  the 


laws  of  Oregon,  are  only  those  which  are 
specified  as  such  under  the  subdivisions  of 
§  650  of  the  Civil  Code  and  in  other  sections 
thereof,  and  can  be  punished  only  in  the 
mode  therein  described.  State  v.  Kaiser, 
20  Or.  50,  23  P-ac.  964,  8:  584 

5.  Attempting  to  obtain  a  continuance  of 
a  case  by  means  of  false  telegrams  stating 
that  a  party  is  ill  constitutes  a  contempt  of 
court.  Carter  v.  Com.  96  Va.  791,  32  S.  E. 
780,  45:  31Q 

6.  The  keeper  of  a  county  jail  may  be 
punished  by  attachment  by  a  court  of  the 
United  States  for  contempt  in  inflicting 
cruel  or  unusual  punishment  on  prisoners 
committed  to  his  custody  by  audh.  court.  Re 
Birdsong,   39  Fed.  599,  4:  628 

7.  Ratification  by  the  publishers  of  an  ar- 
ticle constituting  contempt  of  court,  put 
into  a  newspaper  by  a  reporter,  will  render 
them  liable  therefor.  People  ex  rel.  Connor 
V.  Stapleton,  18  Colo.  568,  33  Pac.  167, 

23:  787 
Interfering  with  property. 

8.  Interference  with  the  property  of  a 
corporation  of  which  a  receiver  has  been  ap- 
pointed, by  attaching  it,  is  a  civil  contempt. 
Holbrook  v.  Ford,  153  111.  633,  39  N.  E.  1091, 

27:324 

9.  Previous  knowledge  on  the  part  of  one 
attaching  property  in  another  state  in  viola- 
tion of  the  rights  of  a  receiver,  of  the  ap- 
pointment of  the  receiver  or  of  the  insolven- 
cy of  the  debtor,  is  necessary  to  cause  the 
court  to  enjoin  the  suit  or  commit  the  plain- 
tiff for  contempt.  Id. 

10.  The  contempt  of  a  resident  creditor  of 
a  foreign  corporation,  in  attaching  in  an- 
other state  debts  due  such  corporation  after 
the  appointment  of  a  receiver,  and  in  re- 
fusing to  dismiss  such  attachment  suits,  is 
waived  by  the  voluntary  interference  of  such 
receiver  in  the  attachment  suits.  Id. 

11.  Contempt  proceedings  are  not  appro- 
priate for  the  trial  of  issues  involving  the 
title  to  a  fund  raised  by  assessments  upon 
the  members  of  a  benefit  society,  which  is  in 
the  possession  of  the  local  branch  from 
whose  members  it  came,  or  to  determine  the 
validity  of  a  lien  alleged  to  have  been  ac- 
quired by  garnisihment  proceedings  against 
it.  Baldwin  v.  Hosmer,  101  Mich.  119,  59 
N.  W.  432,  25:739 
Removing  witness. 

12.  Removing  a  witness  from  the  county 
of  his  residence,  where  he  was  under  sub- 
poena to  attend  upon  the  trial  of  a  cause 
pending  with  the  purpose  and  effect  of  pre- 
venting nis  appearance  upon  the  day  of  the 
trial,  being  a  wrongful  act  which  obstructs 
the  administration  of  justice. — is  a  contempt 
of  court.  Hale  v.  State,  55  Ohio  St.  210,  45 
N.  E.  199,  36:  254 
Locking  out  court. 

13.  Locking  the  door  of  a  court  room  dur- 
ing the  adjournment  of  court,  and  refusing 
to  allow  the  judge  of  the  court  and  his  offi- 
cers and  the  parties  to  the  suit  on  hearing 
before  him  to  enter  the  court  room  at  the 
time  to  which  court  was  adjourned,  is  a  con- 
tempt of  court.  Dahnke  v.  People,  168  III. 
102,  48  N.  E.  137,  39:  197 


COIS  TEMPT.  I.  b. 


65C 


b.  Charge  againat  Judge;    Publication  as  to 
Pending  Case. 

Injunction  against  Publication,  see  Injunc- 
tion, 61. 
See  also  infra,  76-81. 
For  Editorial  Notes,   see  infra,   V.  §§   1,   3. 

14.  Any  form  of  coercion  intended  to  af- 
fect the  judgment  of  the  court  in  a  pending 
case  is  unlawful,  although  judicial  decisions, 
when  made,  may  be  freely  commented  upon 
and  criticized.  State  v.  Bee  Pub.  Co.  60 
Neb.  282,  83  N.  W.  204,  50:  195 

15.  Fair  and  reasonable  review  and  com- 
ment upon  court  proceedings  as  they  take 
place  from  time  to  time  is  not  a  contempt  of 
court.  Cooper  v.  People  ex  rel.  Wyatt,  13 
Colo.  337,  373.  23  Par.  790.  ,  6:  430 
State  V.  Kaiser,  20  Or.  50,  23  Pac.  3B4. 

8:  584 

16.  Punishment  for  contempt  may  be  im- 
posed upon  one  who,  pending  a  suit,  pub- 
lishes articles  which  will  tend  to  embarrass 
the  court  in  deciding  it,  where  the  statutes 
have  adopted  the  common  law  governing  the 
punishment  of  contempts.  State  v.  Tugwell, 
19  Wash.  238,  52  Pac.  1056,  43:  717 

17.  Liability  to  punishment  for  contempt 
for  publishing  articles  tending  to  embarrass 
the  court  pending  a  suit  is  not  taken  away 
by  a  constitutional  provision  giving  every 
person  the  right  to  freely  write  and  publish 
on  all  subjects,  being  responsible  for  abuse 
of  that  right.  Id. 

18.  A  corporation  may  be  held  liable  for 
criminal  contempt  for  publishing,  in  a  news- 
paper printed  and  circulated  in  a  place 
where  a  trial  is  had,  an  article  concerning 
the  cause  on  trial,  which  is  calculated  to 
prejudice  the  jury  and  prevent  a  fair  trial. 
Telegram  Newspaper  Co.  v.  Com.  172  Mass. 
294,  52  N.  E.  445,  44:  159 

19.  Publishing  in  a  newspaper  the  figures 
named  by  the  respective  parties  to  a  suit  on 
trial  in  an  effort  to  compromise  the  contro- 
versy, so  that  they  are  likely  to  be  brought 
to  the  notice  of  the  jury,  is  punishable  as  a 
contempt  of  court,  although  there  is  no  in- 
tent to  pervert  the  course  of  justice.  Id. 

20.  That  the  jurors  did  not  in  fact  see  a 
newsi>aper  article  published  during  a  trial 
in  such  a  way  as  to  be  likely  to  come  to 
their  notice  and  prejudice  the  judgment  will 
not  relieve  the  publisher  from  contempt  of 
court.  Id. 

21.  An  attempt  by  wanton  publication  to 
prejudice  the  rignts  of  litigants  in  a  pend- 
ing cause,  degrade  the  tribunal,  and  impede, 
embarrass,  or  corrupt  the  due  administration 
of  justice,  is  a  contempt  of  court.  Cooper 
v.  People  ex  rel.  Wyatt,  13  Colo.  337,  373,  22 
Pac.  790,  6:  430 

22.  Criticism  of  the  manner  in  which  trials 
are  conducted  in  court  cannot  be  punished  as 
a  contempt  of  the  court,  unless  it  refers  to 
some  particular  case  pending  before  the 
court.  Ex  parte  Green,  46  Tex.  Crim.  Rep. 
576,  81  S.  W.  723,  66:  727 
Charge  against  judge. 

23.  A  newspaper  corporation  is  guilty  of 
contempt  in  charging  the  judges  in  a  pend- 
ing   case    with    dishonorable    conduct,    and 


threatening 'them  with  public  odium  and  rep- 
robation in  case  a  decision  is  rendered  in  a 
particular  way.  State  v.  Bee  Pub.  Co.  60 
Neb.  282,  33  N.  W.  204,  _         50:  195 

24.  A  newspaper  article  published  before 
the  final  determination  of  a  cause,  stating 
that  the  decison  rendered  is  "rotten,"  that 
the  judge  who  rendered  it  had  no  mind,  and 
intimatmg  that  he  was  corrupt,  and  that  he 
misstated  the  facts,  is  a  contempt  of  court. 
State  V.  Tugwell,  19  Wash.  238,  52  Pac.  1056, 

43:  717 

25.  It  is  not  contempt  for  an  attorney  to 
characterize  as  "inflammatory,"  in  a  motion 
to  quash  an  indictment,  a  charge  to  the 
grand  jury  which  assumes  that  the  crime  of 
bribery  has  been  committed  and  that  it  is 
the  duty  of  the  jurors  to  indict  therefor,  and 
concludes  as  follows:  "There  comes  up  from 
the  people  a  command  for  a  forward  march 
all  along  the  line  of  your  dut^.  You  should 
give  heed  to  that  cry,  for  it  comes  from  a 
patipnt  and  long-snfi"ering  endurance  which 
has  at  last  reached  its  limit."  Clair  v.  State, 
40  Neb.  534,  59  N.  W.  118,  28:  367 

26.  Contempt  of  court  is  not  shown  by  the 
act  of  counsel  of  one  indicted  for  a  crime, 
in  alleging  in  respectful  language,  as  one 
of  the  I'easons  for  quashing  the  indictment, 
that  the  judge's  charge  to  the  grand  jury 
was  inflammatoi'y  and  prejudicial  in  that  it 
aroused  the  prejudice  of  the  grand  jury  so 
that  they  were  not  fair  and  impartial;  and 
the  fact  that  the  remedy  was  by  plea,  in- 
stead of  by  motion,  does  not  affect  the  ques- 
tion of  contempt.  Id. 

27.  It  is  not  contempt  of  court  for  a  de- 
fendant petitioning  for  a  change  of  venue  on 
account  of  prejudice  on  the  part  of  the  pre- 
siding judge  to  allege  in  his  petition,  which 
is  not  read  to  the  court,  but  is  handed  to  the 
judge  in  a  respectful  manner  for  his  perusal, 
that  when  the  action  was  about  to  be  called 
for  trial  the  judge's  wife  stated  that  she 
must  see  the  judge  and  arrange  with  him 
to  have  plaintiff  win  the  case  at  least  not 
if  the  allegation  is  true.  Mullin  v.  People. 
15  Colo.  437,  24  Pac.  880,  9:  566 

28.  An  allegation  of  the  falsity  of  a  state- 
ment inserted  by  a  defendant  in  his  petition 
for  change  of  venue  because  of  prejudice  on 
the  part  of  the  presiding  judge,  to  the  effect 
that  at  the  time  the  case  was  about  to  be 
called  for  trial  the  judge  and  his  wife  were, 
as  petitioner  was  informed,  the  guests  of 
plaintiff,  will  not  support  a  judgment 
against  defendant  for  contempt,  where  issue 
upon  the  statement  is  taken  as  to  the  time 
only,  and  the  fact  that  defendant  had  re- 
ceived information  as  stated  is  not  denied. 

Id. 

29.  A  statement  by  defendant  in  a  peti- 
tion for  change  of  venue  because  of  preju- 
dice on  the  part  of  the  presiding  judge,  that 
petitioner  believes  from  the  rulings  and  in- 
structions of  the  judge  in  a  former  suit  be- 
tween the  same  parties  that  the  judge  is 
prejudiced  in  favor  of  plaintiflF,  will  not 
make  him  guilty  of  contempt  although  there 
is  no  foundation  in  fact  for  such  belief, 
where  there  is  nothing  to  show  that  he  was 
guilty  of  any  evil  intent.  Id. 


fi";4 


CONTEMPT,  1.  c. 


30.  A  mistaken  belief  that  at  the  time  of- 
a  publication  of  a  libel  upon  a  judge  his 
court  had  adjourned,  so  that  there  could  be 
no  punishment  as  for  contempt,  is  not  a  de- 
fense to  a  proceeding  to  impose  such  punish- 
ment. Burdett  v.  Com.  103  Va.  838,  48  S.  E. 
878,  G8:  251 

31.  That  the  cause  is  ended  will  not  pre- 
vent the  punishment  of  a  party  for  con- 
tempt in  publishing  an  article  charging  the 
judge  with  misconduct  during  its  trial,  which 
consists  in  scandalizing  and  defaming  the 
court  itself.  Id. 

32.  It  is  a  contempt  of  court  for  a  news- 
paper to  charge  that  persons  stigmatized  as 
boodlers  and  corruptionists  have  influence 
enough  with  the  court  to  prevent  the  hand- 
ing down  of  a  decision  in  a  case  in  which 
they  had  been  convicteu  of  crime,  to  charge 
the  court  with  stiielding  them  from  punish- 
ment, and  to  state  that  it  would  be  inter- 
esting to  know  what  mysterious  but  power- 
ful influenpe  has  retarded  the  machinery  oi 
justice  so  strikingly.  People  ex  rel.  Connor 
V.  Stapleton,  18  Colo.  568,  33  Pac.  167, 

23:  787 

33.  An  affidavit  alleging  the  truth  of 
newspaper  statements  filed  in  response  to  an 
order  to  show  cause  why  the  affiant  should 
not  be  punished  for  a  contempt  because  of 
such  publication,  cannot  be  itself  held  to 
constitute  a  contempt  when  the  original 
publication  did  not.  State  ex  rel.  Ashbaugh 
V.  Eau  Claire  County  Circuit  Ct.  97  Wis.  1, 
72  N.  W.  193,  38:  554 

34.  Newspaper  articles  charging  a  judge 
who  is  3  candidate  for  re-election  with  cor- 
ruption and  partiality  in  actions  already 
passed  and  ended,  but  not  referring  to  any 
pending  litigation,  cannot  be  punished  as  a 
criminal  contempt,  although  they  are  dis- 
tributed to  officers  of  the  court  and  to  per- 
sons summoned  as  jurors  therein,  as  well  as 
generally  circulated.  Id. 

c.  Disobedience. 

See  also  infra,  79,  80,  98. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

35.  The  fact  that  an  order  disobeyed  was 
beyond  the  jurisdiction  of  the  authority 
from  which  it  emanated  may  be  shown  in 
defense  upon  process  for  contempt.  State 
ex  rel.  St.  Louis,  K.  &  S.  R.  Co.  v.  Wear,  135 
Mo.  230,  36  S.  W.  357,  33:  341 

36.  The  interruption  of  the  court  by  a  by- 
stander or  spectator  declaring  that  he  knows 
two  men  who  saw  the  affair  under  consider- 
ation, followed  by  refusal  to  give  their 
names  so  that  they  can  be  summoned  as 
•witnesses,  constitutes  a  punishable  con- 
tempt. Coleman  v.  Roberts,  113  Ala.  323,  21 
So.  449,  36:  84 

37.  An  order  of  court  prohibiting  the  pub- 
lication of  evidence  in  a  divorce  case,  be- 
cause it  is  unfit  for  publication,  is  not  au- 
thorized by  Cal.  Code  Civ.  Proc.  §  125,  au- 
thorizing the  court  to  exclude  persons  other 
than  officers  of  the  court,  parties,  coun'sel, 
and  witnesses,  or  by  §  1209,  making  disobe- 
dience of  any  lawful  judgment  or  unlawful 


interference  with  the  proceedings  a  con- 
tempt of  court.  Re  Shortridge,  99  Cal.  526, 
34  Pac.  227,  21:  755 

38.  An  order  requiring  a  defendant  to  op- 
erate a  machine  invented  by  him  (the  so- 
called  "Keely  Motor"),  made  in  a  suit  for  a 
discovery  as  to  such  invention,  before  issue 
joined  and  before  legal  testimony  could  have 
been  taken,  and  which  would  in  effect  com- 
pel him  to  disclose  his  defense,  is  an  improv- 
ident exercise  of  chancery  powers,  and  hence 
not  sufficient  to  support  a  commitment  as 
for  a  contempt  in  not  obeying  suoh  order. 
Com.  ex  rel.  Keely  v.  Perkins,  124  Pa.  36, 
16  Atl.  525,  2:  223 
By  witness. 

See  also  infra,  60. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

39.  A  summary  enforcement  of  an  answer 
by  imprisoning  a  witness  is  not  an  exercise 
of  judicial  power  to  punish  contempt  of 
court  as  a  criminal  offense,  but  of  adminis- 
trative power  to  enfore  a  law  which,  if  en- 
forced at  all,  must  be  enforced  at  once.  Re 
Clark,  65  Conn.  17,  31  Atl.  522,  28:  242 

40.  A  physician  duly  subpoenaed  and  in- 
terrogated as  an  expert  witness  can  be  pun- 
ished .IS  for  a  contempt  if  he  refuses  to 
testify  without  receiving  compensation  other 
than  ordinary  witness  fees.  Dixon  v.  Peo- 
ple, 108  111.  179,  48  N.  E.  108,  39:  116 

41.  The  utility  of  a  disclosure  required  by 
statute  from  one  convicted  of  intoxication, 
as  to  when,  where,  how,  and  from  whom, 
he  obtained  the  intoxicating  liquor,  which 
disclosure  is  to  be  turned  over  to  the  State's 
attorney,  cannot  be  questioned  by  the  con- 
vict or  the  court,  as  an  excuse  for  a  refusal 
to  make  the  disclosure.  Re  Clayton,  59 
Conn.  510,  21  Atl.   1005,  13:  66 

42.  That  the  privilege  of  a  witness  to  re- 
fuse to  give  self-incriminating  testimony  is 
subject  to  abuse  cannot  be  considered  by  the 
courts  in  determining  the  validity  of  a  con- 
viction for  contempt  for  refusing  to  answer, 
further  than  to  guard  against  such  abuses  as 
far  as  consistent  with  the  maintenance  of 
the  right  itself.  Ex  parte  Misldmins,  8 
Wyo.  392,  58  Pac.  411,  49:  831 

43.  For  wilfully  refusing  to  attend  and 
testify  before  the  house  of  representatives, 
or  a  committee  having  an  election  contest 
properly  pending  before  it,  a  person  duly 
suhpojnaed  may  be  lawfully  imprisoned  for 
contempt.  Re  Gunn,  50  Kan.  155,  32  Pac. 
948,  19:  519 
By  receiver. 

Question  for  Jury  as  to,  see  Trial,  500. 

44.  The  service  upon  a  receiver,  whose  pos- 
session of  property  is  mixed  and  scrambling, 
of  a  writ  directing  the  suspension  of  pro- 
ceedings against  such  property,  together 
with  the  petition  and  order  therefor,  from 
which  it  appears  that  his  authority  is  ques- 
tioned because  of  absence  of  jurisdiction  in 
the  court  appointing  him,  compels  him  to  de- 
cide at  his  peril  whether  or  not  his  author- 
ity is  valid;  and  if  not  he  must  relinquish 
his  claim  to  possession,  or  answer  for  con- 
tempt of  the  writ,  llavemeyer  v.  San  Fran- 
cisco Super.  Ct.  87  Cal.  267,  25  Pac,  433, 

10:  650 


CONTEMPT,   I.  c. 


655 


45.  Merely  going  upon  premises  and  com- 
pelling the  superintendent  in  charge  to  ac- 
knowledge his  authority  will  not  give  a  re- 
ceiver acting  under  a  void  commission  such 
full  and  complete  possession  of  them  as  to 
justify  hia  maintaining  it  after  the  service 
upon  him  of  a  writ  directing  the  suspension 
of  proceedings  against  the  property,  where 
the  person  in  control  of  the  business  and  all 
employees  continue  resistance,  and  the 
workmen  on  the  premises  have  not  received 
or  obeyed  orders  from  the  receiver,  but  have 
continued  in  the  siervice  and  pay  of  their  em- 
ployers. The  possession  being  mixe<l  and 
scrambling,  the  legal  seisin  attaches  itself  to 
the  right  of  possession.  Id. 

4(5.  A  receiver  who,  upon  proper  order, 
fails  or  refuses  to  deliver  a  fund  intrusted 
to  his  care,  may  properly  be  adjudged  in 
contempt  of  court,  and  imprisoned  for  such 
a  time  as  may  be  necessary  to  compel  the 
production  of  the  money.  Tindall  v.  West- 
cott,  113  Ga.  1114,  39  S.  E.  450,  55:  225 

47.  A  receiver  is  in  direct  contempt  of 
court,  who,  in  violation  of  his  duty  and  in 
disregard  of  the  order  of  the  court,  obtains 
from  a  bank  on  checks  not  countersigned, 
and  appropriates  to  his  own  use,  a  fund  aris- 
ing from  a  sale  of  the  debtor's  property, 
which  he  has  deposited  under  the  direction 
of  the  court,  subject  to  be  withdrawn  only 
on  his  check  when  the  same  has  been  coim- 
tersigned  bjr  the  judge  presiding  in  the  court 
which  appointed  him;  and  regardless  of  the 
question  whether  or  not  the  bank  is  liable 
for  such  wrongful  payment,  he  may  be  at- 
tached and  punished  for  disregarding  the  or- 
ders of  the  court  and  for  refusal,  when  so 
ordered,  to  pay  into  court  the  fund  so  mis- 
appropriated. Id. 

48.  A  receiver  wlio  has  misappropriated  a 
fund  committed  to  his  safekeeping,  and  has 
refused,  upon  order,  to  pay  it  into  court,  can- 
not urge,  in  support  of  a  petition  for  dis- 
charge from  imprisonment  for  contempt  un- 
der a  writ  of  habeas  corpus,  the  disqualifica- 
tion of  the  judge  who  presided  in  the  case 
in  which  the  receiver  was  appointed,  and 
who  made  the  order  for  the  payment  of  the 
money, — especially  where  he  was  a  member 
of  a  firm  who  were  plaintifl's  in  the  petition 
under  which  he  was  appointed,  heard  the 
judire  discuss  his  disqualification,  and,  when 
urged  to  preside,  inquire  if  there  was  any 
objection,  but  sat  silently  by  and  saw  him 
preside  and  make  the  decree,  and  later,  as 
receiver,  made  a  report  to  such  judge,  asking 
for  the  allowance  of  certain  expenditures  as 
part  of  his  expenses,  and  treated  him  as 
qualified  to  do  everything  in  the  case.  Id. 
Of  order  to  pay  money. 

For  Alimony,  .Jurisdiction  of  Proceeding,  see 
Courts,  259. 

See  also  infra,  46^8,  92,  95-97;  Incompe- 
tent Persons,  32. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

49.  Contempt  proceedings  will  lie  to  com- 
pel payment  of  instalments  of  alimony  or- 
dered to  be  paid  in  the  future  by  a  final 
judgment  of  divorce,  where  an  execution  can- 
not be  issued,  since  there  is  no  provision  of 


law  for  collecting  such  judgment.     Staples 
V.  Staples,  87  Wis.  592,  58  N.  W.  1036, 

24:  433 

50.  Inability  to  pay  instalments  of  ali- 
mony, brought  about  by  the  party  himself 
with  intention  to  avoid  payment,  will  not 
prevent  his  refusal  to  pay  irom  being  con- 
tumacious and  punishable  as  a  contempt  of 
court.  Id. 
Of  Injunction. 

Review  of  Decision  as  to,  on  Appeal,  see  Ap- 
peal  and  Error,   520. 
Federal  Jurisdiction  of,  see  Courts,  335,  336. 
For  Editorial  Notes,  see  infra,  V.  §  1. 

51.  That  an  injunction  was  erroneously 
granted  is  no  defense  to  a  violation  thereof. 
Smith  V.  Speed,  11  Okla.  95,  66  Pac.  511, 

55:  402 

52.  Disobedience  of  a  preliminary  injunc- 
tion is  punishable  as  a  contempt,  unless  the 
order  was  void  upon  its  face  for  an  utter 
lack  of  jurisuiction  on  the  part  of  the  judge 
who  granted  it.  People  ex  rei.  CaufTman  v. 
Van  Buren,  136  N.  Y.  252,  32  N.  E.  775, 

20:  446 

53.  An  injunction  decree  for  the  abate- 
ment of  a  liquor  nuisance,  under  loWa  Code, 
§  1543,  operates  upon  the  property  as  well 
as  upon  the  person  of  the  defendant;  and 
any  person,  although  not  a  party  to  the  in- 
junction proceedings,  may  be  punished  for 
contempt  if  he  violates  the  injunction. 
Silvers  v.  Traverse,  82  Iowa,  52,  47  N.  W. 
888,  11:804 

54.  Actual  notice  of  the  injunction  is  not 
necessary  to  render  a  person  liable  for  con- 
tempt in  maintaining  a  liquor  nuisance  on 
certain  premises  after  an  injunction  has  been 
granted,  under  the  Iowa  Code,  for  the  abate- 
ment of  a  liquor  nuisance  thereon.  Id. 

55.  An  engineer  who,  while  on  the  road 
with  his  train,  refuses  to  switch  into  the 
train  a  car  from  another  road  with  which 
the  labor  organization  to  which  he  belongs 
is  in  conflict,  declares  that  he  quits  the  em- 
ployment of  the  company,  and  refuses  re- 
peated orders  to  proceed  with  his  train;  but, 
upon  receiving  an  order  from  such  labor  or- 
ganization, completes  his  trip;  and  thereaft- 
er, upon  being  told  what  his  next  run  will 
be,  gives  no  notice  or  having  quit,  or  intend- 
ing to  quit,  his  employment, — is  guilty  of 
contempt  as  violating  an  injunction  restrain- 
ing the  company  from  refusing  equal  facil- 
ities for  the  interchange  of  traffic  to  such 
other  company,  of  which  he  has  notice.  To- 
ledo, A.  A.  &  N.  M.  R.  Co.  V.  Pennsylvania 
Co.  54  Fed.  746,  19:  395 

56.  js.n  employee  of  a  railroad  company  is 
not  guilty  of  contempt  as  disobeying  an  in- 
junction restraining  the  company  from  re- 
fusing to  another  road  equal  facilities  for 
the  interchange  of  traffic,  where,  rather 
than  perform  the.  duties  necessary  to  such 
interchange,  he  quits  the  scyvice  in  good 
faith,  unconditionally  and  absolutely,  while 
his  train  is  safely  stored  in  the  company's 
yard,  and  no  special  injury  can  result,  no 
lives  be  imperiled,  or  property  jeopardized, 
by  his  refusal  to  continue  in  the  service; 
but  80  long  as  he  continues  in  the  service  he 


CM 


CONTEMPT,  II. 


is  guilty  of  contempt  in  refusing  to  obey 
such  injunction.  Id. 

57.  Compliance  with  the  specific  directions 
for  the  abatement  of  the  nuisance,  in  a  de- 
cree enjoining  the  conducting  of  a  business 
in  such  a  way  that  the  dust  and  fumes 
therefrom  constitute  a  nuisance,  will  not  ab- 
solve defendant  from  liability  to  punishment 
for  contempt  in  failing  to  obey  the  general 
clause  of  the  decree,  in  case  such  directions 
prove  insufficient.  Northwood  v.  Barber 
Asphalt  Pav.  Co.  126  Mich.  284,  85  N.  W. 
724,  54:  454 


II.  Procedure. 

Due  Process  in,  see  Constitutional  Law,  797- 

799. 
Right  to  Jury  Trial,  see  Jury,  14,  15. 
See  also  infra,  82,  88. 

58.  The  proper  practice,  upon  the  refusal 
of  employees  to  obey  an  injunction  against 
a  railroad  corporation,  is  the  issuance  of  a 
citation  requiring  them  to  appear  and  show 
cause  why  they  should  not  be  attached  for 
contempt.  Toledo.  A.  A.  &  N.  M.  R.  Co.  v. 
Pennsylvania  Co.  54  Fed.  746,  19:  395 

59.  An  information  in  proceedings  for  con- 
tempt of  an  injunction  need  not,  under  Iowa 
Code,  §  3495,  contain  a  copy  of  the  injunc- 
tion decree,  if  it  specifically  refers  to  it, 
and  shows  its  existence  and  a  violation  of 
it.  Silvers  v.  Traverse,  82  Iowa,  52,  47  N. 
W.  888,  11:804 

60.  The  power  to  issue  a  mittimus  with- 
out a  regular  trial  and  judgment  is  given  to 
a  justice  of  the  peace  by  Conn.  Gen.  Stat.  § 
91,  when  complaint  is  made  to  him,  by  grand 
jurors,  of  a  rsfusal  to  give  testimony  before 
them.    Re  Clark,  65  Conn.  17,  31  Atl.  522, 

28:  242 

61.  A  court  of  equity  asked  to  proceed  as 
for  a  contempt  against  a  creditor  who  seeks 
to  reach  by  attachment  or  garnishment 
debts  due  to  an  insolvent  debtor  by  persons 
residing  out  of  the  state  may  inquire  which 
of  the  parties  has  a  paramount  right  or 
statutory  equitv  to  those  debts.  Holbrook 
V.  Ford,  153  111.  633,  39  X.  E.  1091,       27:  324 

62.  Appearing  and  answering  as  to  the 
merits  on  a  charge  of  contempt  will  prevent 
any  attack  for  lack  of  jurisdiction  of  the 
person,  on  a  decision  that  the  party  is  in 
contempt.  Ex  parte  Kecler,  45  S.  C.  537. 
23  S.  E.  865,  31 :  678 

63.  Evidence  taken  under  a  petition  for 
the  restoration  of  property  which  a  receiver 
has  permitted  to  be  taken  out  of  his  posses- 
sion cannot  be  considered  by  the  court  in 
determining  the  sufficiency  of  the  receiver's 
answer  in  a  proceeding  against  him  for  con- 
tempt for  such  conduct,  where  it  is  not  in- 
troduced as  evidence  in  the  contempt  pro- 
ceeding: 'but,  if  the  answer  is  sufficient  to 
acquit  the  receiver,  he  must  be  discharged. 
Oster  V.  People,  192  111.  473,  61  N.  E.  460, 

50:  4G2 
In  whose  name  prosecnted. 

64.  A  proceeding  to  punish  n  receiver  for 
cont/jmpt  for  permitting  propoity  committed 


to  his  care  in  an  equity  suit  to  be  taken  out 
of  his  possession  is  properly  prosecuted  by 
and  in  the  name  of  the  people,  and  docketed 
as  an  independent  and  distinct  cause  from 
the  chancery  proceeding.  Id. 

Issuance  of  process. 

65.  The  issuance  of  process  of  attachment 
in  a  proceeding  to  compel  a  receiver  to  show 
cause  why  'he  should  not  be  punis'hed  for 
permitting  property  committed  to  his  care 
to  be  carried  away  is  not  necessary  where 
he  is  in  court  when  the  order  requiring  him 
to  show  cause  is  entered.  Id. 
Complaint. 

See  also  Pleading,  439. 

66.  A  formal  complaint  is  not  necessary 
to  authorize  a  court  to  take  cognizance  of  a 
contempt  consisting  in  publishing  newspaper 
articles  calculated  to  prejudice  the  jury  in 
a  trial  pending  before  it.  Telegram  Newspa- 
per Co.  v.  Com.  172  Mass.  294,  52  N.  E.  445, 

44:  159 
AflSdavit;  statement. 

67.  If  the  facts  presented  by  an  affidavit 
as  a  basis  of  a  proceeding  for  contempt  do 
not  show  that  a  contempt  has  been  commit- 
ted, the  court  will  be  without  jurisdiction 
to  proceed ;  but  if  the  facts  are  sufficient  the 
court  may  take  jurisdiction,  and  its  subse- 
quent orders  will  not  be  reviewed  for  mere 
errors.  Cooper  v.  People  ex  rel.  Wyatt,  13 
Colo.  337,  373,  22  Pac.  790,    •  6:  430 

68.  An  affidavit  is  not  necessary  to  a  pro- 
ceeding to  require  a  receiver  to  show  cause 
why  he  should  not  be  punished  for  contempt 
for  permitting  the  carrying  away  of  prop- 
erty committed  to  his  care,  where  the  facts 
have  all  been  brought  to  the  attention  of 
the  court  by  testimony  taken  under  a  peti- 
tion filed  in  the  cause  in  which  he  was  ap- 
pointed to  have  the  property  restored.  Os- 
ter V.  People,  192  111.  473,  61  N.  E.  469, 

56:  462 

69.  A  court  has  no  authority  to  proceed 
against  a  party  for  contempt  on  account  of 
acts  not  committed  in  the  immediate  view 
and  presence  of  the  court,  unless  the  facts 
constituting  the  contempt  are  shown  by  an 
affidavit  presented  to  the  court.  State  v. 
Kaiser,  20  Or.  50,  23  Pac.  964,  8:  584 

70.  In  the  absence  of  a  statement  verified 
by  oath,  bringing  to  the  knowledge  of  the 
judge  facts  alleged  to  make  the  insertion  of 
certain  allegations  in  a  petition  for  change 
of  venue  a  contempt  of  court,  he  has  no 
jurisdiction  to  issue  attachments  against, 
and  punish  as  for  contempt,  the  persons  re- 
sponsible for  the  filing  of  the  petition,  under 
Colo.  Code  Civ.  Proc.  chap.  31,  if  neither  the 
language  used  nor  the  filing  of  the  petition 
is  per  se  a  contempt.  Thomas  v.  People,  14 
Colo.  254,  23  Pac.  326.  9:  569 
Privilege  of  accused  as  to  testifying. 

71.  A  person  c'harged  with  contempt  of  an 
injunction  cannot  be  compelled  to  be  a  wit- 
ness against  himself,  as  the  proceeding  is  of 
a  criminal  nature.  Ex  parte  Gould,  99  Cal. 
.300,  .33  Pac.  1112,  21:  751 
Conclusiveness  of  finding  as  to. 

72.  A  finding  of  unlauiul  interference 
with  the  proceedings  of  a  court,  which  is 
adjudged  a    contempt,  is  not   conclusive  on 


CONTEMPT,  m,  a,  b. 


657 


certiorari,  where  the  facts  found  show  that 
there  was  no  contempt.  Re  Shortridge,  99 
Cal.  526,  34  Pac.  227,  21:  755 


III.  Power  as  to. 
a.  Of  Notary  Public. 

Delegation  of  Power  to,  see  Constitutional 

Law,  230. 
For  Editorial  Notes,  see  infra,  V.  §  2. 

73.  A  notary  public  exercising  the  juris- 
diction of  a  justice"  of  the  peace  has  power 
to  punish  a  bystander  or  spectator  for  con- 
duct constituting  contempt.  Coleman  v. 
Roberts,  113  Ala.  323,  21  So.  449,  36:  84 

74.  A  notary  puDiic  has  no  poW^r  to  com- 
mit a  witness  for  contempt  because  of  a  re- 
fusal to  be  sworn  or  to  give  a  deposition. 
Re  Huron,  58  Kan.  152,  48  Pac.  574,    36:  822 

b.  Of  Court. 

See  also  supra,  2,  3,  69. 

For  Editorial  Notes,  see  infra,  V.  §  2. 

75.  That  an  act  is  indictable  under  the 
penal  law  of  the  state  does  not  deprive  the 
courts  of  power  to  punish  it  as  a  contempt. 
Bradley  v.  State  ex  rel.  Hill,  111  Ga.  168, 
36   S.   E.  630,  50:  691 

76.  District  courts  of  Colorado  have  inher- 
ent power  summarily  to  convict  and  punish 
as  for  contempt  of  court  those  responsible 
for  a.  tides  published  in  reference  to  a  pend- 
ing cause  which  are  calculated  to  interfere 
with  the  due  administration  of  justice  in 
such  causes.  Cooper  v.  People  ex  rel.  Wyatt, 
13  Colo.   337,  373,   22   Pac.   790,  6:  430 

77.  The  common-law  power  of  the  courts 
to  punish  for  constructive  contempt  is  recog- 
nized and  confirmed  by  Neb.  Code  Civ.  Proc. 
§  669,  providing  that  any  wilful  attempt  to 
obstruct  the  proceedings  or  hinder  the  due 
administration  of  justice  in  any  pending 
suit  shall  constitute  a  contempt,  and  be  pun- 
ishable as  such.  State  v.  Bee  Pub.  Co.  60 
Neb.  282,  83  N.  W.  204,  50:  195 

78.  The  supreme  court  retains  jurisdiction 
to  punish  for  contempt  one  making  a  publi- 
cation tending  to  embarass  it  in  the  deci- 
sion of  a  case,  even  after  the  rendition  of  an 
opinion  and  the  time  for  rehearing  has 
elapsed,  if  time  still  remains  for  application 
for  modification  of  tne  opinion,  which  is 
made  soon  after  the  article  is  published. 
State  V.  Tugwell,  19  Wash.  238,  52  Pac.  1056, 

43:717 

79.  The  court  cannot  prohibit  the  publi- 
cation of  the  testimony  taken  in  a  trial 
in  which  no  obscenity  is  involved,  where  the 
Constitution  guarantees  a  public  trial  and 
the  liberty  of  the  press.  Ex  parte  Foster, 
44  Tex.  Crim.  Rep.  423,  71  S.  W.  593. 

60:  631 

80.  The  court  cannot,  of  its  own  motion, 
adjudge  the  publisher  of  a  newspaper  in  con- 
tempt for  disobeying  its  oral  order  not  to 
publish  the  testimony  in  a  case  on  trial,  and 
then  attach  him  to  show  cause  why  the 
judgment  should  not  be  made  final.  Id. 

L.R.A.  Dig.— 42. 


81.  A  court  is  not  dissolved  by  a  mere  re- 
cess or  necessary  adjournment  from  one  day 
to  the  next;  and  misbehavior  affecting  pub- 
lic justice,  in  the  court  room  and  in  the  im- 
mediate presence  of  the  judge,  while  he  is 
attending  there  to  resume  business  when  the 
hour  of  recess  expires,  is  misbehavior  in  the 
presence  of  the  court,  and  may  be  punished 
summarily  as  a  contempt  of  court, — espe- 
cially if  the  misbehavior  is  by  a  suitor  who 
has  called  attention  to  a  pending  case,  and 
is  discussing  it  in  the  presence  of  some  of 
the  jurors  who  may  have  to  try  it.  Baker 
v.  State,  82  Ga.  776,  9  S.  E.  743,  4:  128 

82.  That  a  contempt  of  court  is  not  com- 
mitted in  the  presence  of  the  court  does  not 
deprive  it  of  the  power  to  punish  the  of- 
fense; but  the  offender  may  be  brought 
before  the  court  by  rule  or  other  sufficient 
proj;ess.  Burdett  v.  Com.  103  Va.  838,  48  S. 
E.  878,  68:  251 
Legislative  power  to  interfere  with. 
Delegation  of  Legislature's  Power  to  Punish 

for  Contempt,  see  Constitutional  Law, 
230-232. 
For  Editorial  Notes,  see  infra,  V.  §  2. 

83.  The  inherent  power  of  courts  created 
by  the  Constitution,  to  enforce  respect  and 
obedience  by  punishing  contempts  without 
a  jury  trial,  cannot  be  taken  away  by  the 
legislature.  Carter  v.  Com.  96  Va.  791,  32 
S.   E.  780,  45:  310 

84.  No  authority  to  define  contempts,  and 
to  take  fi'om  the  courts  jurisdiction  to  pun- 
ish as  a  contempt  any  act  not  mentioned 
in  the  statute,  is  given  to  the  legislature  bj' 
Ga.  Const,  art.  1,  §  1,  H  20,  providing  that 
the  power  of  the  courts  to  punish  for  con- 
tempts shall  be  limited  by  legislative  acts, 
since  this  empowers  the  legislature  only  to 
fix  the  limit  of  the  punishment  which  may 
1)6  inflicted.  Bradley  v.  State  ex  rel.  Hill,  111 
Ga.  168,  36  S.  E.  630,  50:  091 

85.  The  power  to  punish  for  contempt 
being  inherent  in  a  court  created  by  the 
Constitution  and  endowed  with  all  the  rights 
and  powers  possessed  by  courts  of  record 
prior  to  that  time,  the  legislature  cannot, 
without  express  constitutional  authority,  by 
defining  what  are  contempts,  limit  the 
courts  to  treating  as  contempts  such  acts 
only  as  are  embraced  in  the  legislative  def- 
inition. Id. 

86.  The  attempt  to  restrict  the  power  of 
courts  to  punish  for  contefnpt,  made  by 
Okla.  Sess.  Laws  1895,  p.  91,  defining  con- 
tempt, and  limiting  the  punishment  there- 
for, and  providing  that  in  all  cases  of  in- 
direct contempt  the  party  charged  therewith 
shall,  on  demand,  have  a  change  of  judge  or 
venue  and  a  trial  by  jury  is  invalid,  since 
the  legislature  is  without  power  to  abridge 
the  inherent  right  of  courts  created  by  the 
organic  act  to  punish  contempts.  Smith  v. 
Speed,  11  Okla.  95,  66  Pac.  511,  55:  402 

87.  The  general  assembly  is  without  au- 
thority to  abridge  the  power  of  a  court 
created  by  the  Constitution  to  punish  con- 
tempts summarily,  such  power  being  inhei- 
ent  and  necessary  to  the  exercise  of  judicial 

!  functions;    and    Ohio    Rev.    Stat.    §§    6906. 
6907,  will  not  be  so  construed  as  to  impute 


658 


CONTEMPT,  IV.,  V. 


to  the  general  assembly  an  intention  to 
abridge  such  power.  Hale  v.  State,  55  Ohio 
St.  210,  45  N.  E.  199,  36:  254 


IV.  Judgment;   Punishment. 

Review   of  Commitment   and   ReleaS'j   from 

Imprisonment,  see  Habeas  Corpus,  31- 

34. 
Prohibition  against  Punishment,  see  Prohi- 

bhiou,  17. 
See  also  supra,  39,  46;  Criminal  Law,  202; 

Judgment,  14. 
For  Editorial  Notes,  see  infra,  V.  §  2. 

88.  When  any  constitutional  right  or  im- 
munity of  accusea  is  violated  in  a  p:'oceed- 
ing  for  contempt  in  refusing  to  give  testi- 
mony, a  judgment  of  conviction  is  void.-Ex 
parte  Miskimins,  8  Wyo.  392,  58  Pac.  411, 

49:  831 

89.  A  plaintiff  in  an  equity  case  has  no 
absolute  right  to  proceed  with  the  trial 
while  he  is  in  contempt  of  court  for  refusal 
to  obey  an  order  which  can  be  enforced  by 
mandamus.  Campbell  v.  Justices  of  Supe- 
rior Court,  187  Mass.  509,  73  N.  E.  659, 

69:  311 
Suspension  of  judgment. 

90.  A  condition  in  a  judgment  for  con- 
tempt of  an  injunction  against  the  unlawful 
sale  of  intoxicating  liquors,  that  "the  execu- 
tion of  this  judgment  is  to  be  suspended 
during  the  pleasure  of  the  court,"  is  unlaw- 
ful and  void.  State  v.  Voss,  80  Iowa,  467, 
45  N.  W.  898,  8:  767 
Striking  out  answer. 

91.  Striking  out  a  defendant's  answer  to 
punish  him  for  contempt  is  not  authorized 
by  U.  S.  Rev.  Stat.  §  725,  U.  S.  Cbmp.  Stat. 
1901,  p.  583,  which  restricts  such  punish- 
ment to  fine  or  imprisonment.  Hovey  v. 
Elliott,  145  X.  Y.  126,  39  N.  E.  841,  39:  449 
[Aff'd  by  the  Supreme  Court  of  the  United 
States  in  1G7  U.  S.  409,  42  L.  ed.  215,  17 
Sup.  Ct.  Rep.  841.] 

92.  In  an  action  for  divorce,  the  court  has 
power  to  punish  a  contempt  of  court  in  re- 
fusing to  pay  alimony  awarded  by  it  by 
striking  the  defendant's  answer  from  the 
record,  or  refusing  to  permit  him  to  plead 
further,  in  a  case  in  which  the  defendant  has 
voluntarily  absented  himself  from  the  terri- 
tory for  the  purpose  of  avoiding  contempt 
proceedings  for  failure  to  pay  such  alimony- 
Bennett  V.  Bennett  (Okla.)  81  Pac.  632, 

70:  864 
Fine. 

Delegation  of  Power  as  to,  see  Constitution- 
al Law.  232. 

93.  The  fine  for  disobeying  an  injunction 
against  the  sale  of  property  on  execution, 
wlu-reliy  the  lien  of  the  plaintifi''s  attach- 
ments was  lost,  should  be,  under  X.  Y.  Code 
Civ.  Proc.  §  2284,  the  amount  of  his  debt, 
where  it  has  become  merged  in  a  judcrment 
>\-hich  the  attached  property  was  siifTicient 
to  satisfy,  and  the  debtor  is  insolvent,  and 
no  proof  is  made  in  reduction  of  damages. 
People  ox  rel.  Caiifi"man  v.  Van  Buren,  136 
N.  Y.  252,  32  X.  E.  775,  20:  446 


94.  Civil  as  well  as  criminal  contempts 
are  within  the  provisions  of  U.  S.  Rev.  Stat. 
§  725,  U.  S.  Comp.  Stat.  1901,  p.  583,  author- 
izing fine  or  imprisonment  only,  as  a  pun- 
ishment therefor,  and  this  is  applicable  to 
the  District  of  Columbia.  Hovey  v.  Elliott, 
145  N.  Y.  126,  39  N.  W.  841,  39:  449 
[Aff'd  by  the  Supreme  Court  of  the  United 
States  in  167  U.  S.  409,  42  L.  ed.  215.  17 
Sup.  Ct.  Rep.  841.] 

Imprisonment  for  debt. 

95.  The  commitment  of  a  defendant  for 
contempt  for  refusing  to  pay  alimony  is  not 
an  imprisonment  for  debt  within  the  consti- 
tutional provision  against  imprisonment  for 
debt.  Barclay  v.  Barclay,  184  111.  375,  56  N. 
E.  636,  51:351 

96.  A  final  money  decree  for  alimony  fs 
not  a  debt  within  the  purview  of  the  con- 
stitutional inhibition  against  imprisonment 
for  debt;  and  punishment  as  for  a  contempt 
may  follow  a  wilful  failure  to  comply  with 
it.  State  V.  Cook,  66  Ohio  St.  566,  64  N.  E. 
567,  58:  625 

97.  The  obligation  of  a  wife  to  pay  money 
for  the  support  of  her  husband  under  an 
order  of  court  in  a  case  within  Cal.  Civ. 
Code,  §  176,  is  not  a  debt  within  the  pro- 
visions of  the  Constitution  against  impris- 
onment for,debt.  Livingston  v.  Los  Angeles 
County  Super.  Ct.  117  Cal.  633,  49  Pac.  836, 

38:  175 

98.  An  order  made  in  a  proceeding  in  con- 
tempt against  sureties  on  an  undertaking 
for  the  redelivery  of  attached  property  by 
the  principal,  requiring  them  to  pay  judg- 
ment recovered  against  him,  and  directing 
that,  in  default  of  such  payment,  they  shall 
be  imprisoned,  is  in  contravention  of  their 
constitutional  right  of  exemption  from  im- 
prisonment for  debt.  Second  Nat.  Bank  v. 
Becker,  62  Ohio  St.  289.  56  N.  E.  1025, 

51:860 


V.  Editorial  Notes. 

§  I.  What  constitutes. 

Lack  of  jurisdiction  of  matter  in  which 
contempt    alleged.  2:  223.* 

^"'olntion  of  injunction  as.     8:  589.* 

Disobedience  of  order  of  court  as.    8:  587.* 

Hv   petition  to  change  venue.     9:  566.* 

By  refusal  to  testify.     13:  66.* 

By  board  of  health  in  disobeying  injunc- 
tion.   48:  708. 

Publishing  court  proceedings  in  newspa- 
per as.    8:  586.* 

Liability  of  newspaper  proprietor  in  case  of 
publication  without  his 
knowledge.    26:  781. 

Compelling  payment  of  alimony  by  con- 
tempt proceedings.  24: 
433. 

§  2.  Punishment. 

Power  to  punish  for.    8:  584.* 

Summary  punishment.     4:  128;*  8:  586.* 

Xotary's  power  to  punish  for  contempt.  36: 
822. 

Legislative  power  to  abridge  the  power  of 
courts  to  punish  for  con- 
tempt.    36:  254. 


CONTESTS— CONTINUANCE  AND  ADJOURNMENT.  I. 


659 


In  general.    36:  254. 
In  case  of  Federal  courts.    36:  258. 
Distinction       between       constitutional 
courts  and  others.   36:  258. 
Personal    liability    of   judicial    officer    com- 
mitting   person    for    con- 
tempt.    14:  144. 
§  3.  Statement  with  respect  to  ended  cause. 
At  common  law.     68:  251. 
Under  statute.     68 :  260. 
What  constitutes  a  "pending"  action.     68: 

261. 
Miscellaneous.    68:  262. 


CONTESTS. 


Of  Election,  see  Elections,  IV. 
Against  Granting  of  Liquor  License,  see  In- 
toxicating Liquors,  II.  c. 
Of  Mining  Claims,  see  Mines,  I.  c. 
Of  Title  to  Office,  see  Officers,  L  f. 
Of  Wills,  see  Wills,  I.  e. 


CONTIGUOUS. 


Meaning  of  Term,  see  Municipal  Corpora- 
tions, 18. 

c-*-» 

CONTINGENT  CLAIMS. 

Against    Decedent's    Estate,    see    Executors 
and  Administrators,  138-140. 


CONTINGENT  FEE. 


Contract  by   Attorney   for,  see  Attorneys, 
65-69;   Champerty,  11-13. 


CONTINGENT  LIMITATION. 

Validity  of,  see  Perpetuities. 


CONTINGENT  REMAINDER. 

As  Breach  of  Covenant,  see  Covenant,  49. 

Recovery  for  Improvements  on  Breach  of 
Covenant  of  Seisin  by,  see  Improve- 
ments, 9. 

Mortgage  of,  see  Mortgage,  4. 

As  Violation  of  Rule  against  Perpetuities, 
see  Perpetuities,  18. 

See  also  Property,  1;  Real  Property  I.  c; 
Wills,  in.  g,  9,  b. 

Editorial  Notes. 

What  is,  see  Real  Property,  III.  §§  1,  4. 

Power  of  legislature  to  destroy.     19:  247. 

Legislative  power  to  change  or  destroy 
estates  by  dower,  curtesy, 
or  similar  estates.  19:  256. 

Conveyance  of  expectancy.     9:477.* 


CONTINGENT  RESULTS. 
Opinion  Evidence  as  to,  see  Evidence,  Vlt  g. 


CONTINUANCE  AND  ADJOURNMENT. 

I.  In  General. 
II.  Grounds  for. 

III.  Affidavits  for. 

IV.  Effect  of  Admission. 
V.  Editorial  Notes. 

Review  of.  Decision  as  to,  see  Appeal  and 
.Error  VII.  i,  2;   Replevin,  27. 

Fraudulent  Attempt  to  Obtain  as  a  Con- 
tempt,  see   Contempt,  5. 

Powers  of  Court  During,  see  Contempt,  81. 

Oi  Meeting  of  County  Board,  see  Counties, 
88-90. 

Of  Prosecution  after  Third  Term,  see  Crim- 
inal Law,  92. 

Of  Election  Contest,  see  Elections,  335,  336. 

Presumption  of,  see  Evidence,  171,  264,  266, 
416-424. 

Of  Grand  Jury,  see  Grand  Jury,  3. 

Of  Injunotion,  see  Injunction,  477a, 

Acts  of  Judge  after  Adjournment,  see 
Judges,  17. 

Of  Legislature,  see  Courts,  88;  Legislature, 
10-12;   Statutes,  22,  23. 

Power  of  Committee  after  Adjournment  of 
Legislature,  see  Legislature,  15. 

Adjournment  of  City  Council,  see  Municipal 
Corporations,  78,  79,  93. 

Refusal  of,  as  Ground  for  New  Trial,  see 
New  Trial,  5. 

By  Representative  Body,  see  Parliamentary 
Law,  2,  3. 


I.  In  General. 

1.  Continuing  a  case  to  the  following  day 
to  permit  the  completion  of  the  jury  from 
the  regular  panel,  rather  than  from  tales- 
men, is  no  abuse  of  discretion  or  violation 
of  law.  Cook  V.  Fogarty,  103  Iowa,  500, 
72  N.  W.  677,  39:  488 

2.  A  recorder,  although  bound  to  proceed 
with  a  pending  prosecution  notwithstanding 
an  investigation  by  the  grand  jury,  may 
nevertheless,  on  proper  showing,  after  the 
case  shall  have  been  fixed  for  examination, 
continue  the  same  for  any  valid  cause,  in 
the  exercise  of  a  sound  legal  discretion. 
State  ex  rel.  Matranga  v.  Bringier,  42  La. 
Ann.  1091,  8  So.  279,  10:  137 

3.  A  refusal  to  continue  a  case  against 
one  who  violated  a  municipal  ordinance  for 
the  previously  announced  purpose  of  testing 
its  constitutionality,  merely  to  give  his 
counsel  time  to  investigate  the  constitution- 
al questions  claimed  to  be  involved  therein, 
is  not  error.  Fitts  v.  Atlanta,  121  Ga.  567. 
49  S.  E.  793,  67:803 

4.  There  is  no  abuse  of  discretion  in  refus- 
ing a  motion  for  a  continuance  if  the  cir- 
cumstances cast  suspicion  on  the  good  faith 
of  the  apnlication.  Barnes  v.  Barnes,  95 
Cal.  171,  30  Pac.  298,  16:  660 


660 


CONTINUANCE  AND  ADJOURNMENT,  II.— IV. 


II.  Grounds   for. 


In  Condemnation  Proceedings,  see  Eminent 
Domain,  183. 

Absence  of  counsel. 

5.  A  judgment  in  a  trial  court  against  a 
party  whose  counsel  is,  to  the  knowledge  of 
the  court,  at  the  time  present  in  the  su- 
preme court  in  obedience  to  its  rule,  will 
not  be  permitted  by  the  latter  court  to 
stand.  Peterson  v.  Atlantic  City  R.  Co.  177 
Pa.  335,  35  Atl.  621,  34:  593 

6.  A  motion  for  a  continuance  of  a  crim- 
inal prosecution  on  the  ground,  of  the  ab- 
sence of  one  of  defendant's  counsel,  who  is 
alleged  to  have  been  always  consulted  in  .re- 
gard to  the  case  and  to  be  better  informed 
in  regara  to  it  than  other  attorneys  could 
possibly  be  on  short  notice,  will  not  be 
granted  where  there  is  nothing  to  show  that 
the  attorneys  present  in  court  had  not  been 
employed  long  prior  to  the  time  of  the 
motion,  or  that  the  case  was  so  intricate 
that  any  competent  attorney  could  not  pre- 
sent it  properly,  even  on  short  notice.  Long 
V.  People,  135  111.  435,  25  N.  E.  851,  10:  48 
Absence  of  witness. 

See  alsp  infra,  13-16,  18-22. 

7.  A  continuance  for  the  testimony  of  ab- 
sent witnesses  is  properly  denied  if  sub- 
stantially the  same  testimony  as  that  which 
is  absent  is  offered  at  the  trial.  McKinney 
V.  State,  3  Wyo.  719,  30  Pac.  293,         16:  710 

8.  Disappearance  during  the  trial,  and  ab- 
sence, when  called,  of  the  witnesses  who 
have  been  subpoenaed  and  who  have  ap- 
peared at  the  trial,  give  the  party  for  whom 
they  were  subpoenaed  no  right  to  a  contin- 
uance without  proof  by  him  that  their  dis- 
appearance does  not  occur  by  his  consent. 
North  Chicago  City  R.  Co.  v.  Gastka.  128  111. 
613,  21  N.  E.  522,  4:  481 

9.  An  application  to  compel  the  attend- 
ance of  a  witness,  which  \Yill  delay  the  trial, 
is  properly  refused  where  the  attempt  would 
be  idle  because  he  is  without  the  jurisdiction 
of  the  court  beyond  the  reach  of  its  proc- 
ess. Fidelity  &  C.  Co.  v.  Johnson,  72  Miss. 
333,  17  So.  2,  30:  206 

10.  A  continuance  because  of  absence  of 
witnesses  should  be  denied  when  not  made 
in  good  faith,  as  shown  by  the  fact  that  the 
applicant  made  efforts  to  prevent  the  at- 
tendance on  behalf  of  the  state  of  one  of 
the  absent  witnesses,  and  used  no  diligence 
to  procure  the  testimony  of  the  others. 
State  V.  Belvel,  89  Iowa,  405.  56  N.  W.  545. 

27:846 

11.  An  application  for  the  continuance  of 
a  criminal  case  for  the  absence  of  witnesses 
which  complies  strictly  with  all  the  require- 
ments of  Ga.  Pen.  Code,  §  962,  should  bo 
granted  or  the  trial  postponed  until  the  at- 
tendance of  such  witnes.ses  can  be  had. 
where  it  appears  that  their  evidence  is  ma- 
terial on  the  controlling  issue  in  the  case, 
and  also  that  defendant  cannot  as  fully  and 
satisfactorilv  make  such  proof  by  any  other 
witnesses.  Rvder  v.  State,  100  Ga.  528.  28 
S.  E.  246,         '  38:721 

12.  A  continuance  of  a  trial  for  murder, 
in  which  the  defense  of  insanity  is  set  up. 


should  be  granted  for  the  absence  of  wit- 
nesses by  whom  defendant  expects  to  prove 
his  insanitj',  where  they  have  been  acquaint- 
ed with  him  all  his  life,  and  one  of  them  is 
a  physician  who  is  familiar  with  the  nature 
of  the  disease  which  is  claimed  to  have 
caused  the  insanity;  and  others  are  defend- 
ant's brothers,  although  there  are  other  wit- 
nesses, including  near  relatives,  by  whom 
many  of  the  facts  could  be  proved,  and  al- 
though the  absent  witnesses  had  not  ac- 
tually seen  defendant  for  some  time  before 
the  homicide.  Id. 


m.  Affidavits  for. 

For  Editorial  Notes,  see  infra,  V. 

13.  An  affidavit  for  a  continuance  to  pro- 
cure a  nonresident  witness  should  state  not 
only  a  bona  fide  belief  that  he  can  be  pro- 
cured, but  also  the  grounds  of  such  belief. 
State  V.  Harrison,  36  W.  Va.  729,  15  S.  E. 
982,  18:224 

14.  An  affidavit  by  defendant  corporation 
for  a  continuance  must  show  due  diligence; 
and  where  it  shows  that  all  the  absent  wit- 
nesses are  its  officers  or  agents,  and  have 
been  present  in  court  at  some  time  during 
the  trial,  that  none  have  been  subpoenaed, 
and  that  it  has  not  tried  to  secure  their 
depositions,  it  is  insufficient.  Anheuser- 
Busch  Brew.  Asso.  v.  Hutmacher,  127  HI. 
652,  21  N.  E.  626,  4:575 

15.  An  affidavit  is  insufficient  to  support 
a  motion  for  the  continuance  of  a  prosecu- 
tion for  an  assault,  where  it  states  that  de- 
fendant expects  to  prove  by  an  absent  wit- 
ness that  the  prosecuting  witness  had 
threatened  to  kill  defendant,  which  threat 
had  been  made  and  communicated  to  de- 
fendant prior  to  the  alleged  assault,  but 
fails  to  show  that  at  the  time  of  the  as- 
sault the  prosecuting  witness  was  attempt- 
ing to  carry  out  his  threat,  or  was  guilty 
of  some  hostile  demonstration  towards  de- 
fendant. Long  V.  People,  135  111.  435,  25  N. 
E.  851,  10:  48 

16.  An  affidavit  for  the  continuance  of  a 
prosecution  for  an  assault,  which  alleges 
that  defendant  expects  to  prove  by  an  ab- 
sent witness  that  the  prosecuting  witness 
had  threatened  to  kill  defendant,  which 
threat  had  been  made  and  communicated  to 
defendant  prior  to  the  assault,  is  not  suf- 
ficient unless  it  also  shows  how  the  absent 
witness  obtained  his  information  as  to  the 
threats,  and  how  they  were  communicated 
to  defendant.  Id. 

17.  Affidavits  in  opposition  to  a  motion 
for  continuance  may  be  received  for  pur- 
poses other  than  to  contradict  statements 
as  to  what  the  testimony  of  absent  wit- 
nesses will  be.  State  v.  Belvel,  89  Iowa,  405, 
56  N.  W.  545,  27:  846 


IV.  Effect  of  Admission. 

As  Authority  for  Subsequent  Admission  of 
.\ffidavii-,  see  Evidence,  902 


CONTINUANCE  AND  ADJOURNMENT,  V.— CONTRACTS. 


661 


Admissibility  of  Admission   at   Subsequent 

Term,  see  Evidence,  1461. 
For  Editorial  Notes,  see  infra,  V. 

IS.  A  motion  for  a  continuance  for  the 
purpose  of  procuring  depositions  of  absent 
witnesses  must  be  overruled  if  the  opposing 
counsel  admits  that  such  witnesses,  if  pres- 
ent, would  give  the  testimony  which  the  af- 
fidavits supporting  the  motion  claim  they 
would;  and  such  counsel  has  the  right, 
without  any  order  of  the  court,  to  incor- 
porate in  his  admission  the  reservation  of 
a  right  to  impeach  such  testimony  if  such 
course  shall  become  desirable.  State  v. 
Gibbs,  10  Mont.  213,  25  Pac.  289,         10:  749 

19.  Discretion  may  be  vested  in  the  court 
to  deny  a  continuance  to  the  accused  be- 
cause of  the  absence  of  a  witness^  upon  ad- 
mission by'tlie  prosecution  that  he  will  tes- 
tify to  the  facts  set  out  in  the  affidavit  for 
continuance  without  requiring  an  admission 
of  their  truth,  in  the  absence  of  a  consti- 
tutional provision  prohibiting  it.  Hoyt  v. 
People,  140  111.  588,  30  N.  E.  315,         16:  239 

20.  Denying  a  continuance  on  an  admis- 
sion by  the  prosecuting  attorney  that  an  ab- 
sent witness  would  testify  as  alleged  in  the 
defendant's  affidavit  for  continuance  with- 
out requiring  an  admission  of  the  facts 
which  such  testimony  would  prove  if  true, 
does  not  violate  a  constitutional  right  of  the 
accused  to  "meet  the  witnesses  face  to 
face,"  and  to  have  "process  to  compel  their 
attendance,"  if  a  reasonable  time  for  that 
purpose  has  already  elapsed.  Id. 

21.  An  admission  that  witnesses  who  are 
out  of  the  jurisdiction  and  not  within  reach 
of  the  process  of  the  court  would,  if  pres- 
ent or  if  their  depositions  were  taken,  tes- 
tify as  stated  in  an  affidavit  for  contin- 
uance, with  an  agreement  that  such  state- 
ment shall  be  introduced  during  the  trial  as 
the  testimony  might  be  if  taken  and  offered 
in  regular  form,  will  justify  the  court  in  the 
exercise  of  its  discretion  in  denying  a  con- 
tinuance on  account  of  such  witnesses.  Fan- 
ton  V.  State,  50  Neb.  351,  69  N.  W.  953, 

36:  158 

22.  A  statute  permitting  the  denial  of  a 
continuance  in  a  criminal  case  for  absent 
witnesses  for  the  defendant,  provided  the 
prosecuting  attorney  will  admit  that  the 
witnesses  if  present  would  testify  as  al- 
leged in  the  affidavits,  is  not  in  violation  of 
the  constitutional  right  of  the  defendant 
to  compulsory  process  for  obtaining  wit- 
nesses, or  the  right  to  meet  witnesses  face 
to  face  (which  means  witnesses  against 
him),  where  he  has  had  reasonable  time  and 
opportunity  to  obtain  his  witnesses  by  com- 
pulsory process  of  the  law;  but  such  rea- 
sonable time  and  opportunity  must  be  given 
him.  Atkins  v.  Com.  98  Ky.  539,  33  S.  W. 
948,  32:  108 


Denial  of  continuance,  upon  admissions  by 
the  prosecution,  as  affect- 
ed by  right  of  accused  to 
meet  witnesses.  16:  239. 
Impeaching  a  contradicting  affidavit. 
16:240. 

Presumption  of.     12:  620;*  35:  117. 


CONTRACTOR. 


Liability  of,  for  Negligence,  see  Negligence, 
34. 

Bonds  of,  see  Bonds,  15-19. 

Measure  of  Damages  on  Bond  of,  see  Dam- 
ages,- 109. 

Liability  for  Negligence  of,  see  Master  and 
Sei-vant,  III.  b;  V.  §§  44-50. 

Liability  of,  for  Negligence,  see  Master  and 
Servant,  720-724. 

For  Public  Improvement,  City's  Liability  to, 
see  Public  Improvements,  20-26. 

As  Employee,  see  Receivers,  48. 

See  also  Building  Contracts. 

Editorial  Notes. 

Liability  of  Employer  for  Acts  of,  see 
Master  and  Servant,  V. 
§§  44-50. 

Liability  to  third  persons  for  defects  in 
work  after  its  completion 
and  acceptance.     26:  504. 


CONTRACTS. 


v.  Editorial  Notes. 

.By  withdrawal  of  juror.    48:  432. 

As  ground  for  discharge  of  accused.  56:  526. 

When  application  for,  denied.     10:  749.* 


I.  Nature  and  Requisites. 

a.  In  General. 

b.  Implied  Agreements. 

c.  Consideration. 

1.  Necessity;  Lack  of. 

2.  Sufficiency. 

d.  Meeting  of  Minds;  Definiteness. 

1.  In  tJeneral. 

2.  Mutuality. 

3.  Definiteness. 

4.  Offers  and  Their  Acceptance  or 

Withdrawal. 

e.  Formal     Requisites;     Statute     of 

Frauds. 

1.  In  General;  Personal  Property. 

2.  Collateral  Contracts;  Debts  of 

Others. 

3.  Not   to   be   Performed   within 

Year. 

4.  Contracts  as  to  Realty. 

5.  Sufficiency  of  Writing. 

o.  In  General. 

b.  Execution. 

c.  Memorandum. 

6.  Effect  of  Fraud  or  Part  Per- 

formance. 
a.  In  General. 

6.  Contracts  Relating  to  Real 
Property, 
n.  Construction. 

a.  In  GeneraL 

b.  Entirety. 

c.  Time. 


662 


CONTRACTS,  I.  a. 


II. — rontinued. 

d.  Particular    Words,    Phrases,    and 
Cases. 

1.  Miscellaneous. 

2.  As  to  Transfer  of  Property. 

a.  Real  Property. 
6.  Personal  Property. 

3.  Other  Agreements  Relating  to 

Land  or  Water. 

4.  For  Services;  Construction  of 

Buildings  or  Works. 
III.  Validity  and  Effect. 

a.  In  General. 

b.  Illegal  by  Express  Provision. 

c.  Public  Policy. 

1.  In  General. 

2.  Contracts  against  Liability. 

3.  As    to   Corporations    and    As- 

sociations. 

4.  Affecting  Official  Action. 

5.  Contracts  of  Public  Officers. 

d.  Gambling  and  Wager  Contracts. 

e.  In  Restraint  of  Trade. 

1.  In  General. 

2.  To  Refrain  from  Business. 

f.  Ratification;  Validating. 

g.  Remedies;    Proceeds   of   Unlawful 

Contract. 

1.  In  General. 

2.  Contracts        against       Public 

Policy. 
rV.  Performance;   Breach. 

a.  In  General. 

b.  Excuse    for    Failure    of    Perform- 

ance. 

1.  In  General. 

2.  Impossibility  of  Performance; 

Inevitable  Accident. 

3.  Prevention    or    Hindrance    by 

Other  Party. 

c.  Incomplete      Performance;       Suf- 

ficiency of  Performance. 

1.  Right    of    Recovery    on    Part 

Performance. 

2.  Sufficiency  of  Performance. 

3.  Acceptance;   Waiver  of  Objec- 

tions. 

d.  Condition;  Certificate  of  Perform- 

ance. 

e.  Breach  and  Its  Effect. 

f.  Time. 

V.  Change  or  Extinguishment. 

a.  In  General. 

b.  Termination. 

c.  Rescission;  Cancelation. 

1.  In   CJoneral. 

2.  Conditions;    Promptness;    Re- 

storing Benefits. 

3.  Grounds  of. 
VI.  Actions;  Liabilities. 

a.  In  General. 

b.  Defenses. 
VII.  Public  Contracts. 

a.  In  General. 

b.  Advertisements  and  Bids;  Letting. 
VTTI.  Editorial  Xotes. 

f'ontract  of  Accord  and  Satisfaction,  see  Ac- 
cord and  Satisfaction. 

Accounting  as  to.  see  .\ccounting. 

Beview  of  Decision  as  to,  on  Appeal,  sec 
Appeal  and  Error,  612-617. 


Assignment  of,  see  Assignment,  28-30. 

With  Passenger,  see  Carriers,  II.  a,  10;  IV. 
§§  18,  20. 

To  Furnish  Cars,  see  Carriers,  XL  b.  8. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
L  b;  IIL  §§  1-11. 

Restrictions  on  Right  of,  see  Constitutional 
Law,  II.  b,  4  b;  III.  §  13. 

Police  Restrictions  on,  see  Constitutional 
Law,  11.  c,  4. 

Impairing  Obligation  of,  see  Constitutional 
Law,  IL  g;   IIL   §  9. 

Effect  of  Custom  or  Usage  on,  see  Custom, 
5-7,  15-17,  20,  22-28. 

Measure  of  Damages  as  to,  see  Damages,  UL 
a;  V.  §§  5-8. 

Recovery  for  Loss  of  Profits  from  Breach  of, 
see  Damages,  IIL  p,  2;  V.  §  22. 

For  Separate  Support  and  Maintenance,  see 
Divorce  and  Separation,  VUI. 

Estoppel  by,  see  Estoppel,  IIL  d;  IV.  §  8. 

Presumption  and  Burden  of  Proof  as  to,  see 
Evidence,  IL  k,  1;  XIII.  §§  20,  21. 

As  Evidence,  see  Evidence,  IV.  n. 

Evidence  as  to,  see  Evidence.  XL  o. 

Sufficiency  of  Proof  of,  see  Evidence,  XII.  i. 

As  to  Custody  of  Child,  see  Infants,  31,  32, 
35. 

Injunction  to  Protect  Rights  in,  see  Injunc- 
tion, I.  b;  IV.  §§  &-8. 

As  to  Insurance  Contract,  see  Insurance,  III. 
IX.  §§  14-36. 

Limiting  Time  to  Sue  on  Policy,  see  Insur- 
ance, VL  h,  3;  IX.  §§  69,  70. 

Limitation  of  Actions  as  to,  see  Limitation 
of  Actions,  III.  b. 

Compelling  Making  of,  see  A^andamus,  154. 

As  to  Compensation  of  Employee,  sec  Mas- 
ter and  Servant,  L  c. 

As  to  Medium  of  Payment,  see  Money,  4,  5. 

Liability  of  Seller  or  Manufacturer  for  De- 
fects in  Thing  Sold  or  Manufactured, 
see  Negligence,  1.  b,  2. 

For  Partnership,  see  Partnership,  1,  5-14,  17, 
18,  38. 

Pleading  as  to,  see  Pleading,  FI.  h. 

Reformation  of,  see  Reformation  of  Instru- 
ments. 

Of  Sale,  see  Sale. 

Specific  Performance  of,  see  Specific  Per- 
formance. 

Trustee's  Liability  on,  see  Trusts,  166-168. 

Notice  in  Warehouse  Receipt  as  Part  of  Con- 
tract, see  Warehousemen,  16. 

As  to  Compromise  and  Settlement,  see 
Compromise  and  Settlement. 

As  to  Covenants,  see  Covenant. 

As  to  Mortgages,  see  Mortgage. 

As  to  Delivery  of  Telegram,  see  Telegraphs, 
IL 

As  to  Water  Rights,  see  Waters,  11.  j. 


I.  Nature   and   Requisites. 

a.  In  General. 

1.  A  proposition  to  issue  bonds  to  a  rail- 
way company  is  in  the  nature  of  a  contract, 
upon  the  acceptance  of  which  both  parties 
will  be  bound  bv  the  ajrreement.  Wullen-, 
waber  v.  Dunigan,  30  Neb.  877,  47  N.  W. 
420,  13:811 


CONTRACTS,  I.  b. 


66: 


Parties. 

By  Association,  Liability  of  Members,  see 

Associations,  19. 
By  Depositor  with  Savings  Bank,  see  Banks, 

350-361. 
By  Corporations,  see  Corporations,  IV.  d. 
By  County,  see  Counties,  II.  d. 
Individual  Liability  of  Executrix,  see  Exec- 
utors and  Administrators,  121. 
Power  of  Guardian  to  Make,  see  Guardian 

and  Ward,  6. 
Power  of  Married  Woman  to  Contract,  see 

Husband  and  Wife,  I.  b,  2. 
Contracts  Between  Husband  and  Wife,  see 
Husband  and  Wife,  H.  e;  V.  §§  12,  13. 
Antenuptial    Contract,    see    Husband    and 

Wife,  n.  i;  V.  §  15. 
By  Insane  Persons,  see  Incompetent  Persons, 

II. 
By  Infaait,  see  Infants,  L  d,  2;  IV.  §§  6-8. 
By  Agent,  see  Principal  and  Agent. 
By  Receiver,  see  Receivers,  II. 
By  Religious  Society,  see  Religious  Societies, 

64-69. 
As  to  Mental  Capacity  to  Make  Will,  see 
Wills,  I.  d. 
2.  A  mortgage  by  an  administrator  in- 
dividually to  himself  as  administrator,  to 
secure  an  indebtedness  which  he  owes  to 
the  estate,  is  invalid  for  want  of  contracting 
parties.  Burditt  v.  Colbum.  63  Vt.  231,  22 
Atl.  572,  13:  676 


Implied  Trusts,  see  Trusts,  I.  d. 
Implied  Gift  by  Will,  see  Wills,  173-177. 
See  also  infra,  112,  272,  304,  482,  502,  612. 

626,  747. 
For  Editorial  Notes,  see  infra,  VIH.  §§2,  30. 


b.  Implied  Agreements. 

Restitution  on,  see  Assumpsit,  13. 

Of    Bank    to    Pav    Depositor's    Checks,    see 
Banks,  120. 

Of  Carrier  or  Passenger,  see  Carriers,  141, 
258,  582,  681. 

Due  Process  in  Statute  as  to,  see  Constitu- 
tional  Law,  926. 

To  Pay  for  Services  of  Corporate  Director, 
see  Corporations,  258. 

Implied  Covenants,  see  Covenant,  9-11,  46, 
82;  Landlord  and  Tenant,  II.  b,  2. 

Right  to  Bring  Action  on,  see  Election  of 
Remedies,  20,  23. 

To  Paj-  for  Services  to  Decedent,  see  Exec- 
utors anl  Administrators,  132. 

By  Executrix  to  Pay  Legacy,  see  Executors 
and  Administrators,  '76. 

To  Pay  for  Maintenance  of  Insane  Person, 
see   Incompetent   Persons,    15. 

By  Hotel  Keeper,  see  Innkeepers,  22. 

To  Pay  Interest,  see  Interest,  1. 

Of  Landlord   to   Repair,  see  Landlord   and 
Tenant,  172. 

Of  Railroad  Employee,  see  Master  and  Serv- 
ant, 2. 

Infant's   Right   of   Action    for   Services   on, 
see  Parties,  26. 

To  Pay  for  Party  Wall,  see  Party  Wall,  7. 

Between    Photographer   and   Customer,    see 
Photographs.  1. 

Allegation  as  to  Periormance  of  Services  by 
Infant,  see  Pleadins,  619. 

To  Pay  for  Support  of  Poor  Person,  see  Poor 
and  Poor  Laws,  3. 

Implied  Warranty,  see  Sale,  60-94,  99. 

As  to  Time  for  Unloading  Vessel,  see  Ship- 
ping, 9,  10. 


3.  A  mere  statutory  obligation  to  pay 
money  does  not  raise  an  implied  contract  to 
pay  it.  The  liability  depends  on  the  statute 
itself.  Davis  v.  Seymour,  59  Conn.  531,  21 
Atl.  1004,  13:  210 

4.  An  express  promise  or  stipulation  by 
parol  to  remunerate  a  person  for  services, 
which  is  void  as  a  contract  because  within 
the  statute  of  frauds,  may  be  operative  to 
rebut  the  presumption  that  the  services 
were  rendered  gratuitously,  and  constitute 
a  sufficient  ground  for  compensation  quan- 
tum meruit.  Ellis  v.  Cary,  74  Wis.  176,  42 
N.  W.  252,  352,  4:  55 
Cadman  v.  Markle,  76  Mich.  448,  43  N.  W. 
315,                                                                 5:  707 

5.  Persons  who  make  gifts  to  a  fund  al- 
ready established  for  the  maintenance  of  a 
public  charity  are  presumed  to  know  on 
what  terms  the  charity  was  established  and 
the  scheme  for  the  management  thereof; 
and  it  will  also  be  presumed  that  they  in- 
tended their  gifts  to  be  held  upon  the  same 
trusts;  and  the  acceptance  of  the  gift  will 
constitute  a  contract  on  the  part  of  the 
donee  that  it  shall  be  so  held.  Cary  Li- 
brary v.  Bliss,  151  Mass.  364.  25  N.  E.  92, 

7:  765 

6.  The  law  raises  no  implied  obligation  on 
the  part  of  one  received  into  a  charitable 
institution  for  support  or  treatment  to  pay 
therefor,  in  the  absence  of  a  contract;  such 
relief  is  referred  to  motives  of  charity  un- 
less the  charter  or  by-laws  of  the  institu- 
tion provide  that  compensation  maj'  and 
shall  be  demanded.  Montgomerv  County  v. 
Ristine,  124  Ind.  242,  24  N.  E.  990,      8:  461 

7.  An  agreement  is  implied  that  a  lessee 
of  mines  will  not  wilfully  or  negligently  in- 
capacitate itself  from  taking  out  more  than 
the  minimum  quantity  of  coal  per  year, 
where  the  lease  is  made  on  a  certain  royalty 
per  ton,  naming  the  minimum  amount  which 
shall  be  taken  in  any  year,  and  the  expec- 
tation of  both  parties  is  that  a  larger  quan- 
tity would  be  taken.  Genet  v.  Delaware  & 
H.  Canal  Co.  136  N.  Y.  593,  32  N.  E.  1078, 

19:  127 

8.  The  large  enhancement  of  one's  prop- 
erty by  the  erection  near  it  of  a  board  of 
trade  buildings  to  which  he  made  a  sub- 
scription which  failed  because  a  condition  as 
to  the  time  of  completion  was  not  complied 
^vith  does  not  raise  any  implied  promise  on 
his  part  to  pav  anything  therefor.  Cincin- 
nati, S.  &  C.  R".  Co.'v.  Benslev.  6  U.  S.  App. 
115,  2  C.  C.  A.  480,  51  Fed.  738,  19:  796 

9.  In  an  agreement  by  which  a  mill  com- 
pany agrees  to  saw  for  a  person  "6,000,000 
feet  or  more  of  pine  logs,"  as  shall  be  direct- 
ed from  time  to  time,  for  which  the  other 
agrees  to  pay  at  certain  rates,  etc..  implies 
an  asreement  on  the  part  of  the  latter  to 
fiM-nish  the  6.000.000  feet  to  be  sawed. 
Minneapolis  Mill  Co.  v.  Goodnow,  40  Minn. 
497,  42  N.  W.  356.  4:  202 


664 


CONTRACTS,  I.  b. 


10.  An  express  agreement  with  the  pro- 
moters of  a  corporation  for  compensation 
for  services  rendered  for  its  benefit  will  not 
prevent  reliance  of  an  implied  one  to  re- 
cover the  value  of  the  services  from  the 
corporation  in  case  it  accepts  the  benefit  of 
the  services  but  repudiates  the  agreement. 
Sullivan  v.  Detroit  Y.  &  A.  A.  R.  Co.  135 
^Fich.  661,  98  N.  W.  756,  64:  673 
To  pay  for  services  of  attorney. 

11.  A  church  does  not  take  the  benefit  of 
'   an    attorney's     services    in    prosecuting    a 

preacher,  so  as  to  make  it  liable  to  pay  for 
them,  by  a  resolution  for  the  removal  of  the 
preacher  from  the  parsonage,  which  recites 
his  suspension  from  the  ministry  upon  the 
charges  presented  against  him.  Parshley  v. 
Third  M.  E.  Church,  147  N.  Y.  583,  42  N. 
E.  15,  30:  574 

12.  Services  performed  as  attorney  in 
fact  for  a  widow  by  one  who  was  sole  lega- 
tee under  a  will  which  was  subsequently  de- 
clared a  nullity,  by  the  terms  of  which  she 
was  given  a  life  estate  and  a  liberal  pro- 
vision was  required  to  be  made  for  her,  will 
not  entitle  him  to  any  compensation  when 
none  was  expected  at  the  time  the  services 
were  rendered.  Royston  v.  McCulley 
(Tenn.  Ch.)  59  S.  W.  725,  52:  899 

13.  A  promise  by  an  infant  to  pay  for 
necessaries  consisting  of  services  of  an  at- 
torney in  conducting  a  lawsuit  will  be  im- 
plied, where  the  suit  was  brought  by  her 
next  friend,  was  legally  proper,  and  the  in- 
fant conferred  with  the  attorney,  appeared 
as  a  witness,  and  profited  by  the  successful 
prosecution  of  the  suit.  Crafts  v.  Carr,  24 
R.  I.  397,  53  Atl.  275,  60:  128 
Of  adoption. 

14.  A  contract  may  be  implied  and  en- 
forced in  equity  to  leave  to  an  adopted  child 
as  an  heir  the  property  of  the  adopting  pa- 
rent, where  the  proceedings  for  adoption 
were  taken  under  a  statute  which  was  un- 
constitutional for  defect  in  its  title,  but 
were  supposed  by  the  adopting  parent  as 
lonff  as  he  lived  to  be  valid.  Wright  v. 
Wright,  99  Mich.  170,  58  N.  W.  54,  23:  196 
Between  relatives. 

Presumption  as  to  Validity  of,  see  Evidence, 

342. 
Instruction  as  to,  see  Trial,  793. 

15.  Where  services  are  rendered  to  one 
standing  in  loco  parentis,  there  is  no  im- 
plied promise  to  pay  for  them,  unless  it  is 
raised  by  the  facts  and  circumstances  of  the 
case.  Harris  v.  Smith,  79  Mich.  54,  44  N. 
W.  169,  6:  702 

16.  A  minor  living  in  the  family  of  a  near 
relative  other  than  a  parent,  who  continues 
for  years  to  render  valuable  services,  rely- 
ing on  the  relative's  promise  of  compensa- 
tion at  the  end  of  a  certain  period,  can, 
when  discharged  during  that  time  without 
compensation,  recover  the  actual  value  of 
the  services  in  assumpsit,  even  if  the  prom- 
ises of  the  relative  were  mnde  in  jest.  Plate 
V.  Durst,  42  W.  Va.  63,  24  S.  E.  580,  32:  404 

17.  A  contract  to  pay  for  the  services  of  a 
grandson  who  lived  and  made  his  home  with 
his  grandfather  during  minority  will  not  be 


implied.     Murphy  v.  Murphy,  1  S.  D.  316,  47 
N.  W.  142,  9:  820 

18.  The  stepdau'ghter  of  a  deceased  per- 
son, who  was  a  member  of  his  family,  can- 
not recover  against  his  estate  for  her  serv- 
ices, without  proving  an  express  promise  or 
agreement  on  his  part  to  pay  her  therefor. 
Ellis  V.  Cary,  74  Wis.  176,  42  N.  W.  252, 
352,  4:  55 
Harris  v.  Smith,  79  Mich.  54,  44  N.  W. 
169,                                                                6:  702 

19.  An  implied  promise  to  pay  for  the 
services  of  a  stepdaughter  after  she  became 
of  age  is  not  established  by  evidence  that 
she  lived  in  the  family  from  the  time  she 
was  nine  years  of  age,  was  cared  for  as  one 
of  the  family  from  that  time  forward  until 
her  marriage,  after  she  became  of  age;  that 
she  performed  the  same  duties  and  dwelt 
there  as  a  member  of  the  family,  and  had 
her  board  and  clothing,  and  from  time  to 
time  was  given  money,  after  her  majority 
as  before.  Harris  v.  Smith,  79  Mich.  54,  44 
N.  W.  169,  6:  702 

20.  A  promise  by  a  wife,  in  the  presence 
and  hearing  of  her  husband,  that  her  daugh- 
ter by  a  former  husband  should  be  paid  for 
her  services  rendered  as  a  daughter  in  the 
family  after  she  became  of  age,  is  not  bind- 
ing upon  the  husband's  estate  unless  he 
knew  that  the  stepdaughter  continued  her 
service  in  reliance  upon  the  promise.  Id. 
Public. 

See  also  infra,  510. 

21.  A  state  is  not  liable  on  a  quantum 
meruit  or  implied  contract  for  the  value  of 
goods  received  and  used  on  a  purchase  il- 
legally made  without  advertising  for  bids  as 
required  by  law.  Mulnix  v.  Mutual  Ben. 
L.  Ins.  Co.  23  Colo.  71,  46  Pac.  123,      33:  827 

22.  An  implied  contract  against  the  re- 
moval of  the  seat  of  state  government  from 
its  original  location  is  not  made  with  prop- 
erty owners  at  that  place  by  its  location 
there.  Edwards  v.  Lesueur,  132  Mo.  410,  33 
S.  W.  1130,  31:815 

23.  A  physician  who  is  a  member  of  a 
board  of  health  may  recover  reasonable  com- 
pensation for  purely  professional  services 
which  any  other  physician  might  render, 
rendered  by  him  under  direction  of  the 
board  of  health  without  any  express  agree- 
ment for  compensation.  Spearman  v.  Tex- 
arkana,  58  Ark.  348,  24  S.  W.  883,        22:  855 

24.  Payment  by  councils  of  a  borough,  for 
some  years,  for  water  actually  furnished 
imder  a  void  contract,  creates  no  contract  to 
accept  and  pay  for  it  in  the  future.  Milford 
V.  Milford  Water  Co.  124  Pa.  610,  17  Atl. 
185,  3:  122 

25.  Mere  acceptance  of  and  payment  for 
the  service  of  a  water  company  in  furnish- 
ing water  for  general  fire  purposes  are  not 
sufficient  to  establish  a  contract  on  the  part 
of  the  water  company  to  compensate  the 
municipality  for  loss  of  property  by  fire  for 
the  extinguishment  of  which  the  company 
negligently  failed  to  furnish  water,  although 
the  service  was  undertaken  in  compliance 
with  a  demand  therefor  by  the  municipality. 
Ukiah  Citv  v.  Ukiah  Water  &  I.  Co.  142  Cal. 
173,  75  Pac.  773,  64:231 


CONTRACTS,  I.  c.  1.  2. 


665 


c.  Consideration. 
1.  Necessity;  Lack  of. 

Effect  of  Failure  of  Consideration,  see  infra, 
816-818,*830. 

Presumption  of  Consideration,  see  Evidence, 
645,  653,  654. 

Parol  Evidence  as  to  Lack  of,  see  Evidence, 
1184. 

Contract  by  Agent  as  to  Time  of  Receiving 
Premium,  see  Insurance,  597. 

Necessity  of,  to  Support  Novation,  see  No- 
vation, 1. 

See  also  infra,  56,  91,  95,  109a,  368,  597. 

For  Editorial  Notes,  see  infra,  VIII.  §§  3,  4, 
9. 

26.  No  action  to  enforce  a  gratuitous 
promise  can  be  maintained,  however  worthy 
the  object  to  be  promoted.  First  Presby. 
Church  V.  Cooper,  112  N.  Y.  517,  20  N.  E. 
352,  3:  468 

27.  An  instrument  would  be  without  con- 
sideration and  therefore  void  if  a  default  of 
the  obligor  could  be  held  as  satisfaction  of 
the  consideration.  Woodland  Oil  Co.  v. 
Crawford,  55  Ohio  St.  161,  44  N.  E.  1093, 

34:  62 

28.  An  agreement  during  the  term  to  re- 
ceive less  or  to  pay  more  than  the  price 
named  in  a  contract  of  employment  for  one 
year  at  a  stipulated  salary  per  month  is 
void,  unless  supported  by  some  change  in 
place,  hours,  character  of  employment,  or 
other  consideration.  Davis  v.  Morgan,  117 
Ga.  504,  43  S.  E.  732,  61 :  148 

29.  An  agreement  by  grocers  not  to  buy 
any  butter  from  the  makers  for  two  years, 
if  a  firm  shall  open  a  butter  store  in  the 
place,  is  void  for  lack  of  consideration, 
where  such  firm  neither  pays  anything 
therefor  nor  buys  any  established  plant, 
place  of  business,  or  good  will.  Chaplin  v. 
Brown,  83  Iowa,  156,  48  N.  W.  1074,    12:  428 

30.  The  extension  of  the  time  for  pay- 
ment of  a  mortgage,  made  by  a  written 
agreement  which  is  not  based  on  any  new 
consideration,  is  invalid.  Olmstead  v.  Lati- 
mer, 158  N.  Y.  313,  53  N.  E.  5,  43:685 

31.  One  who  signed  an  option  contract  to 
convey  land  after  the  expiration  of  the 
option  and  without  any  consideration  mov- 
ing to  him  is  not  bound  thereby.  Le  Rov 
V.  Jacobosky,  136  N.  C.  443,  48  S.  E.  796,  ' 

67:  977 

32.  The  death  of  a  stallion,  preventing  an 
exercise  of  the  privilege  of  return  by  one 
who  had  paid  for  a  fruitless  service,  with 
an  agreement  for  the  privilege  of  return 
during  the  season,  does  not  create  any  fail- 
ure of  consideration  which  will  give  a  right 
to  repayment.  Pinkham  v.  Libby,  93  Me 
575,  45  Atl.  823,  49:  693 
For  release. 

Agreement  to  Accept  Part  of  Debt  in  Full 
Satisfaction,  see  Accord  and  Satisfac- 
tion, 10,  17. 

See  also  infra,  39-41. 

33.  A  release  by  an  indorsee  of  a  promis- 
sory note  of  a  joint  maker  upon  payment  of 
a  part  only  of  the  amount  due  is  without 


consideration  and  void.     Bender  v.  Been,  78 
Iowa,  283,  43  N.  W.  216,  5:  596 

34.  A  release  from  a  contract  to  run  a 
bus  from  passenger  trains  to  a  hotel  is  valid 
without  any  new  and  independent  consider- 
ation to  support  it.  Hathaway  v.  Lynn,  75 
Wis.  186,  43  N.  W.  966,  6:  551 

2.  Sufficiency. 

For  Services  of  Attorney,  see  Attorneys,  65, 
66. 

Exchange  Charged  for  Transmitting  Money, 
see  Banks,  246. 

For  Bills  or  Notes,  see  Bills  and  Notes,  I.  c. 

For  Compromise  and  Settlement,  see  Com- 
promise and  Settlement,  4-11. 

Settlement  of  Claim  as  Consideration  for 
Promise,  see  Compromise  and  Settle- 
ment, 12. 

Of  Deed  to  Corporation,  see  Deeds,  31. 

Parol  Evidence  as  to,  see  Evidence,  VI.  g. 

Of  Conveyance  Attacked  for  Fraud,  see 
Fraudulent  Conveyances,  II. 

For  Assignment  of  Insurance  Policy,  see 
Insurance,  722. 

Promise  to  Pay  Insurance  Premiums,  see  In- 
surance, 644. 

Inoperative  Lease  as  Consideration,  see 
Landlord  and  Tenant,  9. 

For  Assignment  of  Mortgage,  see  Mortgage, 
97. 

For  Delivery  of  Telegram,  see  Telegraphs, 
43. 

See  also  infra,  244,  425. 

For  Editorial  Notes,  see  infra,  VIII.  §  5. 

35.  A  promise,  in  consideration  of  permis- 
sion to  insure  the  life  of  a  person,  to  pay  his 
wife  a  sum  of  money  after  his  death,  is  on 
a  void  consideration  where  the  promisor  has 
no  insurable  interest  in  the  life  on  which  the 
insurance  is  taken,  and  therefore  cannot  be 
enforced.  Burbage  v.  Windley,  108  N.  C. 
357,  12  S.  E.  839,  12:  409 

36.  A  grant  by  the  state  to  an  incorpo- 
rated school,  of  lands  to  be  held  in  trust  for 
the  creation  of  an  income  to  be  used  for 
school  purposes,  is  supported  by  a  consider- 
ation, where,  before  the  grant,  the  legis- 
lature was  charged  with  the  duty  of  caring 
for  the  lands  and  appropriating  the  income 
to  school  purposes,  and  by  the  grant  the 
legislature  is  relieved  from  such  duty,  which 
is  imposed  on  and  assumed  by  the  incorpo- 
ration. Franklin  County  Grammar  School 
V.  Bailey,  62  Vt.  467,  20  Atl.  820,  10:  405 
Of  bailment. 

37.  A  legal  consideration  for  the  loan  of 
I  painting  for  a  competitive  exhibition  at  a 
fair  is  furnished  in  the  detriment  and  in- 
convenience to  which  the  sender  is  subjected, 
and  the  indirect  and  contingent  benefit  to 
the  person  conducting  the  exhibition.  Prince 
V-.  Alabama  State  Fair,  106  Ala.  340,  17  So. 
449,  28:  716 
Of  promise  to  pay  expert. 

38.  There  is  sufficient  consideration  for  a 
promise  to  pay  an  expert  witness  a  reason- 
able compensation  in  addition  to  the  stat- 
utory fees,  when  he  is  engaged  in  advance  of 


666 


CONTRACTS,  I.  c,  2. 


the  trial  to  testify  as  an  expert.    Barrus  v. 
Phaneuf,  166  Mass.  123,  44  N.  E.  141, 

32:  619 
For  release. 
See  also  supra,  33,  34. 

39.  A  sufficient  consideration  for  a  con- 
tract to  release  a  railroad  company  from  lia- 
bility for  personal  injuries  of  an  employee  if 
he  accepts  benefits  from  the  relief  fund  of  a 
railroad  relief  association  exists  where  both 
employer  and  employee  contribute  to  the 
fund,  and  the  employer  takes  care  of  the 
funds,  pays  the  operating  expenses,  and  pays 
interest  on  the  fund.  Pittsburg,  C.  C.  &  St. 
L.  R.  Co.  V.  Cox,  55  Ohio  St.  497,  45  N.  E. 
641,  35:507 

40.  Re-employment  of  an  injured  em- 
ployee for  one  day,  and  for  such  further 
time  as  may  be  satisfactory  to  the  employer, 
is  a  sufficient  consideration  to  support  a  re- 
lease of  liability  for  injuries  caused  by  the 
negligence  of  the  employer,  where  at  the 
time  the  release  was  given  the  injuries  were 
believed  by  both  parties  to  be  slight  and  in- 
significant, although  they  subsequently 
prove  to  have  been  serious,  and  to  have  de- 
stroved  the  employee's  ability  to  labor. 
Quelle  V.  Cxulf,  C.  &  S.  F.  R.  Co.  98  Tex.  6, 
81  S.  W.  20,  66:  734 

41.  A  release  exacted  by  a  railroad  com- 
pany as  a  condition  of  permitting  an  injured 
employee  to  return  to  work,  without  any 
undertaking  on  its  part  to  continue  the 
employment  any  longer  than  may  be  satis- 
factory to  it,  is  without  consideration,  and 
not  binding  on  the  employee,  although  in 
consequence  of  it  he  is  permitted  to  return 
to  work,  and  receive  wages  for  some  time. 
Missouri,  K.  &  T.  R.  Co.  v.  Smith",  98  Tex. 
47,  81  S.  W.  22,  66:  741 
For  promise  of  third  person. 

See  also  infra,  85,  405;   Accord  and   Satis- 
faction, 13;  Guaranty,  5. 

42.  Where  a  conveyance  of  property  is 
made  in  consideration  of  a  contract  by  the 
vendee  to  perform  certain  services  for  the 
vendor,  and  in  case  of  a  sale  of  the  prop- 
erty to  pay  certain  specified  sums  to  the 
vendor  and  to  two  other  persons,  strangers 
to  the  transaction,  a  mortgage  being  taken 
to  secure  the  performance  of  the  contract, 
though  the  amounts  agreed  to  be  paid  to 
such  third  parties  are  in  effect  gifts  to 
them  the  consideration  between  the  immedi- 
ate parties  to  the  transaction  supports  the 
promise  as  between  the  vendee  and  the  bene- 
ficiaries as  efi'ectually  as  if  they  were 
actual  parties  to  such  transaction  and 
parted  with  a  consideration  to  either  the 
vendor  or  the  vendee  to  support  the  promise 
made  for  their  benefit,  the  efi'ect  thereof 
being  to  vest  in  them  the  absolute  right  to 
the  benefit  of  the  promise,  regardless  of  any- 
thing the  immediate  parties  to  such  trans- 
action subsequently  did  without  their  con- 
sent. Twcoddale  v.  Tweeddale,  110  Wis. 
517,  93  X.  W.  440,  61:  ,509 
To  will  property. 

43.  No  binding  contract  enforceable  in  a 
court  of  equity,  to  leave  property  to  certain 
persons  at  death,  is  made  by  a  promise  to 
execute  a  will  in  their  favor  in  consideration 


of  pecuniary  assistance  rendered  and  to  be 
rendered  to  the  testatrix,  where  the  aid  al- 
ready given  has  been  of  a  purely  charitable 
nature,  lyithout  thought  of  compensation  or 
legal  obligation,  and  what  is  expected  to  be 
done  in  the  future  is  not  declared  to  be  of 
a  different  character.  Anderson  v.  Eggers 
(N.  J.  Err.  &  App.)  63  N.  J.  Eq.  264,  49  Atl. 
578,  55:  570 

Promise  by  widow  to  husband's  surety. 

44.  A  promise  by.  a  widow  to  pay  a  surety 
on  her  husband's  debt  is  without  consider- 
ation, where  it  is  merely  the  renewal  of  a 
void  promise  made  before  his  death.  Trim- 
ble V.  Rudy,  22  Ky.  L.  Rep.  1406,  60  S.  W. 
650,  ■     53 :  353 

45. .  Payment  of  notes  by  a  surety  does  not 
constitute  a  new  consideration  which  will 
sustain  a  promise  made  by  the  wife  of  the 
principal  debtor  to  indemnify  him,  where 
she  was  not  previously  obliged  to  do  so.  Id. 
Promise  to  or  by  street  railroad  company. 

46.  Ample  consideration  is  furnished  for 
contract  obligations  of  a  street  railway 
company  to  perform  tne  conditions  of  a 
contract  with  a  city,  by  the  grant  of  the 
privilege  of  using  the  streets  for  an  electric 
railway.  People  ex  rel.  Jackson  v.  Subur- 
ban R.  Co.  178  111.  594,  53  N.  E.  349,    49:  650 

47.  The  connection,  by  a  street  railroad 
company,  of  two  distinct  lines  of  road  which 
it  maintains  in  one  city;  and  the  transpor- 
tation of  passengers  over  such  lines  to  any 
part  of  the  city  for  one  fare;  and  its  build- 
ing, at  the  city's  request,  additional  lines  of 
road, — are  a  sufficient  consideration  for  the 
passage  of  an  ordinance  relieving  the  com- 
pany from  paving  the  street  to  a  given  dis- 
tance outside  its  rails,  and  imposing  in  lieu 
thereof  the  duty  simply  to  keen  certain  por- 
tions of  the  street  in  good  repair;  and  when 
the  ordinance  is  accepted  and  the  conditions 
complied  with,  the  original  duty  ceases. 
Western  Pav.  &  S.  Co.  v.  Citizens'  Street 
R.  Co.  128  Ind.  525,  26  N.  E.  188,  10:  770 
Subscriptions. 

Defense  to  Action  on  Check  for,  see  infra, 
836. 

Grounds  for  Rescinding,  see  infra,  795-797. 

Recovery  back  for  Failure  of  Consideration, 
see  Assumpsit,  9. 

Notes  Given  for,  see  Bills  and  Notes,  34,  40, 
41. 

Amount  of  Recovery  on  Failure  of  Consider- 
ation for,  see  Damages,  88. 

See  also  supra,  8,  infra,  88,  307,  328-330,  752, 
768. 

For  Editorial  Notes,  see  infra,  VITI.  §  5. 

48.  An  individual  assumption  by  trustees, 
of  the  indebtedness  of  a  church,  in  reliance 
on  subscriptions,  constitutes  a  consideration 
for  such  subscriptions.  First  M.  E.  Church 
V.  Donnell,  110  Iowa,  5,  81  N.  W.  171,  46:  858 

49.  The  erection  of  a  library  building  be- 
ing discretionary  with  the  board  of  directors 
as  a  school  district,  and  not  an  imperative 
legal  dutv  resting  upon  the  board  under  Mo. 
Rev.  Stat.  1889,  §§  8109,  8112,  while  it 
is  given  express  power  to  accept  gifts  for 
the  erection  of  such  a  building,  its  erection 
may  be  a  sufficient  consideration  for  a 
promise  to  give  money  in  aid  of  the  enter- 


CONTRACTS,  I.  c,  3. 


607 


prise.     Kansas  City  School  Dist.  v.  Stocking, 
13«  Mo.  672,  40  S.  W.  656.  37 :  406 

50.  A  subscription  paper  by  which  the 
subscribers  agree  to  and  with  the  trustees  of 
a  church  to  pay  the  sums  severally  sub- 
scribed by  them  for  the  purpose  of  paying 
off  a  certain  mortgage  debt,  upon  condition 
that  the  whole  sum  be  subscribed  or  paid 
within  one  year;  and  reciting  a  considera- 
tion of  $1  to  each  of  the  subscribers  in  hand 
paid  (but  which  in  fact  was  not  paid),  and 
the  agreement  of  the  subscribers  with  each 
other  contained  in  the  contract;  where 
neither  the  church  nor  the  trustees  promiee 
to  do  anything,  and  whatever  action  the 
trustees  in  fact  take  in  procuring  subscrip- 
tions is  as  individuals,  and  not  in  their  offi- 
cial capacity, — creates  no  obligation  which 
can  be  enforced  by  the  church  against  any 
of  the  subscribers,  because  there  is  no  priv- 
ity of  contract  between  them  and  the 
church.  First  Presby.  Church  v.  Cooper,  112 
N.  Y.  517,  20  N.  E.  352,  3:  468 

51.  The  incurrinsr  of  an  expense  and  the 
creation  of  a  liability  in  furtherance  of  an 
enterprise  which  a  donor  intended  to  pro- 
mote, and  in  reliance  upon  his  promises,  will 
be  taken,  to  have  been  incurred  and  created 
at  'his  instance  and  request,  and  will  estop 
his  executors  to  plead  a  want  of  considera- 
tion for  his  promise  contained  in  a  promis- 
sory note.  Kansas  City  School  Dist.  v. 
Stocking,  138  Mo.  672,  40  S.  W.  656, 

37:  406 

52.  A  subscription  towards  the  erection  of 
a  church  building,  which  is  entirely  volun- 
tary on  the  part  of  the  subscriber  and  un- 
supported by  any  consideration,  and  Avhich 
remains  unpaid  at  the  subscriber's  death,  is 
thereby  revoked,  and  the  subsequent  erec- 
tion of  the  church,  although  undertaken  in 
reliance  partly  upon  such  subscription,  will 
furnish  no  reason  for  compelling  payment 
by  his  executors.  Twenty-third  Street  Bapt. 
Church  V.  Cornwell,  117  N.  Y.  601,  23  N.  E. 
177,  6:  807 

53.  Payment  by  a  subscriber  of  part  of  his 
subscription,  which  was  not  legally  enforce- 
able, does  not  make  the  balance  of  the  sub- 
scription valid.  First  Presby.  Church  v. 
Cooper,  112  N.  Y.  517,  20  N.  e!  352,  3:  468 
Love  and  affection. 

54.  Love  and  affection,  and  a  desire  to 
provide  for  the  grantee  after  the  grantor's 
death,  as  a  consideration  for  a  conveyance 
of  real  estate,  are  not  sufficient  to  entitle 
the  grantee  to  enforce  an  executory  promise 
in  the  deed  to  satisfy  an  encumbrance  on 
the  property,  or  to  recover  the  amount  from 
the  residue  of  the  estate  in  case  the  mort- 
gage is  foreclosed  against  the  property  con- 
veyed. Fi'jcher  v.  Union  Trust  Co.  138  Mich. 
612,  101  N.  W.  852,  68:  987 

55.  The  consideration  of  a  contract  will 
not  be  held  insufficient  because  affection 
forms  an  element  thereof.  Puterbaugh  v, 
Puterbaugh,  131  Ind.  288,  30  N.  E.  519, 

15:  341 
Moral  oblijration. 
For  Editorial  Notes,  see  infra,  VTTI.  §  7. 

56.  Courts  cannot  enforce  promises  bind- 
ing on  the  conscience,  except  in  those  cases 


where  some  pecuniary  damage  flows  from 
the  breach,  or  where,  in  addition  to  the 
moral  obligation,  the  promfse  is  also  sup- 
ported bv  a  legal  consideration.  Davis  v. 
Morgan,  117  Ga.  504,  43  S.  E.  732,      61:  148 

57.  A  moral  obligation  is  a  sufficient  con- 
sideration to  support  a  promise  to  pay.  Mu- 
tual Reserve  Fund  L.  Asso.  v.  Hurst,  78 
Md.  59,  26  Atl.  956,  20:  761 

58.  A  promise  by  a  husband  to  his  wife 
on  her  deathbed,  that  their  son  should  have 
certain  property,  does  not  constitute  a  valu- 
able consideration  for  a  conveyance  by  him 
to  the  son.  Peek  v.  Peek,  77  Cal.  106,  11 
Am.  St.  Rep.  244,  1:  185 

59.  The  moral  obligation  of  a  son  to  sup- 
port his  mother  is  not  a  sufficient  consider- 
ation to  support  a  promise  to  reimburse  the 
town  for  expenses  incurred  for  that  purpose. 
Freeman  v.  Dodge,  98  Me.  531,  57  Atl.  884, 

66:  395 

60.  A  promise  by  a  son  to  reimburse  a 
town  in  case  it  settles  claims  which  had 
been  made  upon  it  for  supplies  furnished  his 
mother  is  not  supported  by  his  statutory 
obligation  to  pay  the  debt,  where  such  ob- 
ligation is  contingent  upon  the  legal  es- 
tablishment of  the  town's  liability  and  of 
the  ability  of  the  son  to  meet  the  expenses, 
none  of  which  has  been  established  at  the 
time  the  promise  is  given.  Id. 

61.  The  abandonment  of  the  use  of  to- 
bacco by  one  party  during  the  life  of  the 
other  party  is  a  sufficient  consideration  for 
a  promise  by  the  latter  to  pay  an  agreed 
sum  of  money.  Talbott  v.  Stemmon,  89  Ky. 
222,  12  S.  W.  297,  5:  856 

62.  A  minor's  abstinence  from  intoxicat- 
ing liquors  and  tobacco,  and  from  swearing 
and  playing  cards  or  billiards  for  money, 
is  a  good  consideration  for  a  promise  by  his 
uncle  to  pay  him  a  sum  of  money.  Hamer  v. 
Sidway,  124  N.  Y.  538,  27  N.  E.  256,    12:  463 

63.. An  agreement  by  one  partner  who 
had,  by  excessive  use  of  stimulants,  volun- 
tarily disabled  himself  from  service  for  the 
firm,  made  after  dissolution  but  before  full 
settlement,  to  allow  his  copartner  out  of  the 
assets  a  certain  sum  for  past  services,  to 
compensate  him  for  his  own  lack  of  services, 
is  supported  by  a  strong  moral  obligation 
w^hich  renders  it  valid  under  Ga.  Code,  § 
2741,  although  it  would  not  be  valid  at  com- 
mon law.  Grav  v.  Hamil,  82  Ga.  375,  10  S. 
E.  205,  "  6:  72 

Performance  of  existing  obligation. 
For  Editorial  Notes,  see  infra,  VlII.  §  6. 

64.  The  performance  of  a  contract  by  a 
party  who  has  hesitated  or  refused  to  com- 
plete it  may  constitute  a  good  consideration 
for  a  promise  by  a  third  person  who  will  be 
benefited  by  such  performance.  Abbott  v, 
Doane,  163  Mass.  433,  40  N.  E.  197,  34:  33 
Agreement  of  other  party. 

For  Editorial  Notes,  see  infra,  VI  IT.  §  5. 

65.  An  agreement  to  pay  the  purchase 
price  is  a  sufficient  consideration  to  support 
a  contract  to  convey  real  estate.  Rodman  v. 
Robinson,  134  N.  C.  503,  47  S.  E.  19,    65:  682 

66.  A  promise  to  deliver  coal  in  the  fu- 
ture is  a  sufficient  consideration  to  support 
an  acceptance  of  a  draft  for  the  purchase 


CONTRACTS,  I.  c,  2. 


price.    Tradesmen's  Nat.  Bank  v.  Curtis,  167 
N.  Y.  194,  60  N.  E.  429,  52:  430 

67.  Mutual  promises  of  merchants  to  re- 
frain from  engaging  in  business  after  6:30 
p.  M.  of  each  day  are  sufficient  loss  or  detri- 
ment in  the  way  of  financial  transactions, 
or  are  sufficient  gain  and  advantage  from  a 
social  or  healthful  standpoint,  to  support  a 
contract  to  close  their  places  of  business  at 
that  hour.  Stovall  v.  McCutchen,  107  Ky. 
577,  54  S.  W.  969,  47 :  287 

68.  An  agreement  by  an  attorney  to  pros- 
ecute, and  if  possible  collect,  certain  claims, 
and  to  extinguish  the  debt  due  him  by  the 
owner  thereof  for  past  services,  furnishes 
ample  consideration  for  an  agreement  by  the 
latter  that  he  shall  receive  a  fixed  share  of 
whatever  is  obtained  as  the  result  of  such 
prosecution.  Fairbanks  v.  Sargent,  117  N. 
y.  320,  22  N.  E.  1139,  6:  473 

69.  An  antenuptial  agreement  that  at  the 
death  of  the  intended  wife  certain  of  her 
property  shall  go  to  her  brothers  is  a  suffi- 
cient consideration  for  a  promise  by  the  hus- 
band, when  his  wife  is  on  her  deathbed,  to 
hold  the  property  in  trust  for  them,  so  that 
they  may  enforce  the  trust,  although  they 
are  mere  volunteers.  Ransdel  v.  Moore,  153 
Ind.  393,  53  N.  E.  767,  53:  753 

69a.  The  vesting  of  the  title  to  real  prop- 
erty of  a  married  woman  in  her  husband  at 
her  death,  because  of  his  refusal  to  procure 
someone  to  draw  her  will,  by  which  she 
wished  to  devise  the  land  to  third  persons,  is 
sufficient  consideration  for  his  promise  to 
hold  it  in  trust  for  them,  so  that  they  may 
enforce  the  promise.  Id. 

70.  An  agreement  by  the  equitable  owner 
of  1,000  shares  of  corporate  stock  of  the 
par  value  of  $10  per  share,  which  stock  is 
held  by  trustees  under  a  trust  agreement, 
to  sell  500  of  such  shares  at  $1  per  share, 
and  the  execution  of  such  agreement  by  his 
delivering  to  the  buyer  the  trustee's  receipt 
for  the  stock  and  receiving  in  return  $500 
in  cash  and  the  buyer's  receipt  for  500  shares 
of  the  stock,  constitute  sufficient  considera- 
tion for  an  agreement  on  tho  part  of  the 
buyer  to  secure  for  the  seller  a  bona  fide  bid 
of  $5,000  for  the  remaining  500  shares  with- 
in twelve  months,  or  at  the  end  of  that 
time  to  take  the  stock  himself  at  that  price. 
Duchemin  v.  Kendall,  149  Mass.  171,  21  N. 
E.  242,  3:  784 

71.  Consideration  for  an  agreement  by  a 
railroad  company  and  other  parties  about  to 
construct  a  railroad  from  a  mine  to  a  fur- 
nace, and  from  the  furnace  to  an  estab- 
lished railroad,  that  they  will  ship  all  their 
products  at  reasonable  rates  over  the  latter 
railroad,  may  be  found  in  the  purchase  by 
the  owner  of  the  old  road  of  a  certain  quan- 
tity of  the  bonds  of  the  new  company  at  par 
in  order  to  supply  funds  for  the  enterprise. 
Bald  Eagle  Valley  R.  Co.  v.  Nittany  Valley 
R.  Co.  171  Pa.  284,  33  Atl.  230.         29:  423 

72.  A  lease  with  the  affirmative  cove- 
nants of  the  lessee  is  sufficient  considera- 
tion for  a  contract  giving  him  a  right  to 
purchase  the  property  during  the  continu- 
ance of  the  lease,  so  that  the  option  cannot 
be    withdrawn    bv    the    lessor    during    that 


time.     Frank     v.     Stratford-Handcoek,     13 

Wyo.  37,  77  Pac.  134,  67:  571 

Relinquishment  of  rj^ht. 

Immediate  Paymen  for  Agreement  to 
Abate  Portion,  se*  Accord  and  Satisfac- 
tion, 18, 

Consideration  for  Compromise  and  Settle- 
ment, see  Compromise  and  Settlement, 
4-11,  12. 

As  to  Mortgage,  see  Mortgage,  25,  30. 

For  Editorial  Notes,  see  infra,  VIII.  §  5. 

73.  A  benefit  to  the  promisee,  or  a  detri- 
ment to  the  promisor,  is  not  necessary  to 
make  a  good  consideration  for  a  contract,  if 
the  exercise  of  a  present  right  is  forborne 
because  of  the  promise.  Ballard  v.  Burton, 
64  Vt.  387,  24  Atl.  769,  16:  664 

74.  The  promise  of  each  party  to  relin- 
quish his  constitutional  right  to  a  jury  trial 
is  a  sufficient  consideration  for  an  agreement 
to  submit  the  case  to  the  court.  Lanahan  v. 
Heaver,  77  Md.  605,  26  Atl.  866,         20:  759 

75.  A  relinquishment  by  the  mother  of  a 
bastard  child  of  her  right  to  compel  the 
father  by  legal  proceedings  to  assist  in  the 
maintenance  of  the  child,  and  her  support 
and  education  of  the  child  at  her  own  sepa- 
rate expense,  are  a  sufficient  consideration 
for  his  promise  to  make  a  conveyance  of  real 
estate  to  her.  Van  Epps  v.  Redfield,  68 
Conn.  39,  35  Atl.  809,  .  34:  360 
Forbearance  to  sue;  resumption  of  marital 

relations. 

76.  Forbearance  to  bring  suit  on  a  claim 
is  a  sufficient  consideration  for  an  agree- 
ment not  to  plead  the  statute  of  limitations 
thereto.  Wells,  F.  &  Co.  v.  Enright,  127  Cal. 
669,  60  Pac.  439,  49:  647 

77.  Forbearance  by  a  wife  to  bring  a  well- 
founded  suit  for  divorce  against  her  husband 
is  a  sufficient  and  legal  consideration  for  a 
covenant  by  the  husband  to  surrender  all  his 
marital  rights  in  land  belonging  to  the  wife. 
Poison  V.  Stewart,  167  Mass.  211,  45  N.  E. 
737,  36:  771 

78.  The  resumption  of  marital  relations 
by  a  wife  living  separate  from  her  husband, 
and  about  to  commence  proceedings  for  di- 
vorce against  him.  to  which  she  was  entitled 
because  of  his  wrongdoing,  is  a  sufficient 
consideration  for  his  promise  to  convey 
property  in  trust  for  the  benefit  of  their 
children,  and,  in  the  event  of  their  death, 
for  her  benefit.  Moayon  v.  Moayon,  114  Ky. 
855,  72  S.  W.  33,  60:  415 

79.  A  withdrawal  of  an  action  for  divorce, 
brought  by  the  wife,  is  not  sufficient  to  sup- 
port a  conveyance  by  defendant  to  plaintiflf 
of  his  interest  in  his  father's  estate  as 
against  the  claims  of  his  creditors.  Oppen- 
heimer  v.  Collins,  115  Wis.  283,  91  N.  W. 
690,  60:  406 
Extension  of  time. 

See  also  supra,  30. 

80.  The  extension  of  the  time  of  payment 
of  a  past-due  note  is  a  sufficient  considera- 
tion to  support  a  promise  by  a  guarantor  to 
pav  it.  Peterson  v.  Russell,  62  Minn.  220, 
64  ^N.  W.  555,  29:  612 
Naming  child  for  promisor. 

81.  The  naming  of  a  child  for  a  promisor 
in  accordance  with  hia  previous  request  is  a 


CONTRACTS,  I.  d,  1,  2. 


669 


sufficient  consideration  for  a  subsequent 
promise  to  convej'  to  the  child  a  particular 
tract  of  land  because  of  such  act.  Daily  v. 
]\rinnirk-.  117  Iowa.  563,  91  N.  W.  913. 

60:   840 
Services  of  unlicensed  physician. 

82.  Services  rendered  bj^  an  unlicensed 
physician  under  a  contract  which  was  void 
in  its  inception  because  prohibited  by  stat- 
ute do  not  constitute  a  consideration  which 
will  support  an  express  promise  to  pay  for 
the  services.  Puekett  v.  Alexander,  102  N. 
C.  95,  8  S.  E.  767,  3:  43 
Marriage. 

For  Antenuptial  Contract,  see  Husband  and 
Wife,  161. 

When  Action  on  Contract  Barred,  see  Limi- 
tation of  Actions,   179.  ', 

For  Editorial  Notes,  see  infra,  VIII.  §  5. 

83.  Marriage  is  a  valuable  consideration 
sufficient  to  support  a  conveyance  from  hus- 
band to  wife.  Barnum  v.  Le  Master,  110 
'i'enn.  638,  75  S.  W.  1045,  69:  353 

84.  Marriage  is  a  sufficient  consideration 
to  support  an  antenuptial  contract  for  re- 
lease of  dower.  Shea's  Appeal,  121  Pa.  302, 
15  Atl.  629,  1:  422 

85.  Marriage  is  a  sufficient  consideration 
to  support  a  promise  by  the  groom's  father 
to  maintain  the  bride  and  her  child  in  case 
the  groom  fails  to  do  so.  Wright  v.  Wright, 
114  Iowa,  748,  87  N.  W.  709,  55:261 

86.  The  fact  that  a  promise  to  marry  was 
made  six  years  before  the  writing  was 
drawn  and  signed  does  not  impeach  the  con- 
.'^.ideration  of  the  contract,  as  the  written 
instrument  merges  mere  oral  negotiations. 
McNutt  v.  McNutt,  116  Ind.  545,  19  N.  E. 
115,  2:  372 

d.  Meeting  of  Minds;  Definiteness. 

1.  In  General. 

In  Oil  and  Gas  Lease,  see  Mines,  72. 
Adoption  of  Contract  on  Telegraph  Blank, 

see  Telegraphs,  75. 
See  also  Principal  and  Surety,  40. 
For  Editorial  Notes,  see  infra,  VIII.  §  10. 

Mistake  or  fraud. 

87.  Where  a  woman  who  could  neither 
read  nor  write  signed  an  antenuptial  con- 
tract releasing  dower,  which  she  had  pre- 
viously refused  to  execute;  and  there  was 
no  proof  that  it  was  read  or  explained  to 
her,  or  that  she  knew  the  contents;  but 
there  was  evidence  indicating  a  mistaken 
conception  on  her  part  of  its  nature, — it  will 
not  be  enforced  against  her  to  bar  her  dow- 
er.    Shea's  Appeal,  121  Pa.  302,  15  Atl.  629, 

1:422 
Subscription. 

88.  A  binding  contract  is  made  by  a  sub- 
scription to  secure  the  location  of  a  college 
at  a  certain  town,  when  the  required  amount 
ia  subscribed,  and  the  subscription  accepted, 
and  the  college  located  at  that  place,  while 
agencies  are  constituted  and  put  to  work  to 
carry  out  the  enterprise.  Rogers  v.  Gallo- 
wav  Female  College.  04  Ark.  627.  44  b.  W. 
454,  39:  6.36 


2.    Mutuality. 

Lack  of.  Preventing  Injunctive  Relief^  see 
Equity,  86. 

Necessity  of  Alleging,  see  Pleading,  273. 

As  Affecting  Specific  Performance,  see  Spe- 
cific Performance,  7-17. 

For  Editorial  Notes,  see  infra,  VIII.  §  10. 

89.  The  element  of  mutuality  is  not  want- 
ing in  a  contract  expressly  assented  to  by 
both  parties,  with  consideration  on  both 
sides.  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v. 
Cox,  55  Ohio  St.  497,  45  N.  E.  641,      35:  507 

90.  A  contract  by  a  man  whose  wife  is 
living  separate  from  him,  and  about  to  be- 
gin a  suit  for  divorce  because  of  his  wrong- 
doing, that,  in  case  she  will  resume  her  mar- 
ital relations,  he  will  convey  one  third  of 
his  property  in  trust  for  their  children,  and 
for  her  in  the  event  of  their  death,  is  not 
void  because  it  is  not  mutually  binding  up- 
on the  parties,  and  the  remedy  for  its  en- 
forcement is  not  mutual  to  them.  Moayon 
V.  Moayon,  114  Ky.  855,  72  8.  W.  33,  60:  415 
Sale  of  personal  property. 

Effect  of  Custom  on  Lack  of  Privity,  see 
Custom,  28. 

Privity  Between  Seller  or  Manufacturer  of 
Article  and  Person  Injured,  see  Drugs 
and  Druggists,  6;  Negligence,  I.  b,  2.    , 

See  also  infra,  105. 

91.  A  contract  for  the  future  delivery  of 
personal  property  is  void  for  want  of  con- 
sideration and  mutuality,  if  the  quantity 
to  be  delivered  is  conditioned  by  the  will, 
wish,  or  want  of  one  of  the  parties;  but  it 
may  be  sustained  if  the  quantity  is  ascer- 
tainable otherwise,  with  reasonable  certain- 
ty. Cold  Blast  Transp.  Co.  v.  Kansas  Citv 
Bolt  &  Nut  Co.  52  C.  C.  A.  25,  114  Fed.  77, 

57:696 

92.  The  mutuality  of  a  contract  for  the 
purchase  and  sale  of  hops  to  be  grown  in 
the  future  is  not  destroyed  by  a  clause 
leaving  the  purchaser  free  to  reject  those 
tendered  if  they  are  not  of  proper  quality 
and  in  proper  condition.  Livesley  v.  John- 
ston, 45  Or.  30,  76  Pac.  946,  65:783 

93.  Lack  of  mutuality  does  not  render 
void  a  contract  for  the  purchase  and  sale  of 
phosphate  rock,  where  one  party  agrees  to 
take  from  the  other  all  his  consumption  of 
such  rock  in  his  business  as  a  fertilizer  man- 
ufacturer, for  a  term  of  years  at  a  stipu- 
lated price,  which  the  other  agrees  to  supply, 
it  being  stated  that  the  annual  consumption 
is  estimated  at  a  certain  amount  under  nor- 
mal conditions,  but  that  the  purchaser  shall 
be  entitled  to  demand  double  that  quantity 
if  required.  Loudenback  Fertilizer  Co.  v. 
Tennessee  Phosphate  Co.  58  C.  C.  A.  220,  121 
Fed.  298,  61 :  402 

94.  An  agreement  to  furnish  crushed 
stone  "m  such  quantities  as  may  be  desired," 
to  be  "delivered  on  street"  in  a  certain  city, 
without  making  any  more  definite  provision 
as  to  the  quantity  to  be  furnished,  though  it 
is  made  with  one  who  has  a  contract  for 
paving  a  street  in  that  city,  does  not  bind 
the  other  party  to  furnish  him  at  his  option 
all  the  stone  needed  for  paving  such  street, 
since  it  does  not  bind  him  to  take  such  quan- 


670 


CONTRACTS,   I.  d,  3, 


tity.    Hoffman  v.  Maffioli,  104  Wis.  630,  80 
N.  W.  1032,  47:  427 

95.  An  unilateral  promise  or  agreemerit  in 
writing  to  pay  for  specified  usraonal  prop- 
erty is  binding  if  upon  sufficient  considora- 
tion;  and  the  consideration  need  not  be  ex- 
pressed if  the  case  is  not  within  the  statute 
of  frauds.  Horn  v.  Hansen,  56  Minn.  43, 
57  N.  W.  315,  22:  617 
Sale  of  real  property. 

Effect  of  Accepting  i)eed  Poll,  see  Deeds,  34. 
See  also  infra,  212,  213. 

96.  Want  of  mutuality  is  no  defense, 
even  in  an  action  for  specific  performance  of 
a  unilateral  contract  for  the  sale  of  land, 
where  the  party  not  bound  thereby  has  per- 
formed all  the  conditions  of  the  contract  and 
brought  himself  clearly  within  its  terms. 
Bigler  v.  Baker,  40  Neb.  325,  58  N.  W.  1026, 

24:  255 

97.  The  privilege  of  purchasing  given  a 
lessee,  in  case  the  lessor  makes  a  sale  of  the 
premises,  is  not  invalid  on  the  ground  that 
it  is  wanting  in  mutuality,  since  this  priv- 
ilege is  part  of  the  consideration  for  accept- 
ing the  lease.  Hayes  v.  O'Brien,  149  111.  403, 
.^7  N.  E.  73,  23:  555 
Contract  of  employment. 

For  Editorial  Notes,  see  infra,  VIII.  §  10. 

98.  A  contract  for  permanent  employment 
whereby  one  is  induced  to  give  up  his  own 
similar  business  is  not  lacking  in  mutuality 
because  he  does  not  bind  himself  to  continue 
in  the  employment.  Carnig  v.  Carr,  167 
Mass.  544,  46  N.  E.  117,  35:  512 

99.  A  contract  whereby  the  first  party 
agrees  to  employ  the  second  party  to  per- 
form such  work  as  he  may  assign  to  him 
from  time  to  time  imposes  no  obligation  on 
the  first  party,  and  a  provision  therein  for 
the  forfeiture  of  a  specified  sum  by  the 
servant  in  case  he  shall  leave  the  employ- 
ment without  a  specified  notice  constitutes 
no  defense  to  an  action  by  the  latter  for  his 
wages,  as  the  contract  is  void  for  want  of 
mutuality.  Vogel  v.  Pekoe,  157  111.  330,  42 
N.  E.  386,  30:  491 

100.  A  railroad  engineer  employed  under  a 
contract  by  which  the  employer  agrees  to 
pay  him  according  to  specified  rates  for  his 
services,  not  to  discharge  him  without  iust 
cause,  to  promote  him  accordin?  to  specified 
grades  of  service,  and  when  discharges  of 
engineers  are  made  to  discharge  in  the  order 
of  juniority  in  service,  may,  in  the  absence 
of  any  agieemont  by  the  engineer  to  stay 
for  any  special  time,  be  discharged  at  any 
time  because  of  the  want  of  mutuality,  not- 
withstanding the  implied  undertakincf  on  the 
part  of  the  company  to  retain  him  in  its 
service  as  long  as  he  serves  acceptably.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Mathews,  64  Ark. 
398,  42  S.  W.  902,  39:  467 

3.  Definiteness. 

First  Raising  Question  as  to,  on  Appeal,  see 
Appeal  and  Error,  613. 

Indefiniteness  as  AfTectintr  Specific  Perform- 
ance, see  Specific  Performance,  18-20. 

For  Editorial  Notes,  see  infra,  VIII.  §  26. 

101.  A  contract  to  marry  after  the  death 


of  the  divorced  wife  of  one  of  the  parties 
is  reasonably  definite  and  certain  with  re- 
spect to  the  time  of  performance,  since  it 
•is  made  to  depend  upon  an  event  which,  in 
the  course  of  nature,  must  inevitably  occur, 
notwithstanding  the  fact  that  it  is  possible 
that  one  of  the  contracting  parties  may  die 
before  that  event  takes  place.  Brown  v. 
Odill,  104  Tenn.  250,  56  S.  W.  840,     52:  660 

102.  A  contract  to  take  press  reports  for 
a  term  of  years  at  not  more  than  $300  per 
week,  without  making  any  other  provision 
as  to  price,  is  to  indefinite  to  permit  a  re- 
covery of  anything  more  than  nominal  dam- 
ages for  its  breach.  United  Press  v.  New 
York  Press  Co.  164  N.  Y.  406,  58  N.  E.  -527, 

53:  288 

103.  A  contract  by  sellers  of  ice  to  pur- 
chase from  another  all  the  ice  necessary 
to  carry  on  their  business  for  a  period  of 
five  years  is  not  void  for  uncertainty,  and 
their  liability  under  it  cannot  be  avoided 
by  the  transfer  of  their  business  within  that 
period,  so  that  they  need  no  more  ice  under 
the  contract.  Hickey  v.  O'Brien,  123  Mich. 
611,  82  N.  W.  241,  49:  594 

104.  A  contract  to  mine  ore  in  a  certain 
pit  at  a  certain  price  per  ton  "as  long  as  we 
can  make  it  pay"  is  too  indefinite  to  entitle 
the  contracting  parties  to  an  allowance  for 
prospective  profits  in  ease  their  work  is 
stopped  by  the  other  party  to  the  contract. 
Davie  v.  Lumberman's  Min,  Co.  93  Mich.  491, 
53N.  \v.  625,  24:357 

105.  A  contract  for  its  "reqiiirements"  of 
coal  for  a  certain  season,  made  by  a  lumber 
company,  is  not  void  for  uncertainty  an  1  for 
want  of  mutuality,  when  it  was  evidently 
meant  to  call  for  the  amount  of  coal  which 
the  corporation  should  need  in  its  business 
for  such  season,  and  not  merely  what  it 
miffht  choose  to  require  of  the  other  party. 
Minnesota  Lumber  Co.  v.  Whitebreast  Coal 
Co.  160  111.  85,  43  N.  E.  774,  31 :  529 

106.  An  agreement  in  a  lease,  that  the  les- 
see shall  have  the  privilege  of  purchasing 
the  premises  upon  such  terms  and  at  the 
same  price  per  acre  as  any  other  person  or 
purchaser  may  have  offered,  althouarh  it  does 
not  bind  the  lessor  to  make  any  sale,  is  valid 
and  binding  in  favor  of  the  lessee  if  the 
lessor  decides  to  sell,  anH  is  not  incomplete 
or  indefinite.  Hayes  v.  O'Brien,  149  111.  403, 
37  N.  E.  73,  23:  555 

107.  There  is  no  lack  of  certainty  or  defi- 
niteness in  an  agreement  by  which  an  em- 
ployee, having  been  permanently  iniured  in 
the  service  of  his  master,  and  claiming  the 
injuries  were  caused  by  the  latter's  negli- 
gence, is  promised  employment  at  such  work 
as  he  is  able  to  perform  so  long  as  his  serv- 
ices are  satisfactory  to  the  foreman  or  su- 
perintendent imder  whom  he  works,  in  con- 
sideration of  a  release  of  his  claim  for  dam- 
nires,  where  this  is  sunplemented  by  an 
amngement  under  which  he  is  given  em- 
ployment as  a  watchman  at  a  stipulated 
wage  per  day.  Rhoades  v.  Chesapeake  &  O. 
R.  Co.  49  W.  Va.  4!)4,  3D  S.  E.  209,       55:  170 

108.  An  aureement  to  give  a  person  per- 
manent employment  at  stipulated  wages  if 


CONTRACTS.  I.   d,  4 


671 


he  would  give  up  his  business  and  enter  the 
services  of  the  other  party  in  the  same  occu- 
pation is  not  too  indefinite  to  be  capable  of 
enforcement,  when  properly  construed  as  a 
contract  to  employ  him  so  long  as  the  em- 
ployer was  engaged  in  that  business  and  had 
work  which  the  employee  could  do  and  de- 
sired to  do  and  was  able  to  do  satisfactorily. 
Carnig  v.  Carr,  167  Mass.  544,  46  N.  E.  117, 

Si):  512 

109.  Accepted  orders  for  goods  under  a 
contract  which  is  void  because  of  uncertain- 
ty as  to  the  quantity  constitut-.?  sales  of  the 
goods  thus  ordered,  on  the  terms  of  the 
contract ;  but  they  do  not  validate  the  agree- 
ments as  to  articles  which  the  one  refuses 
to  purchase  or  the  other  refuses  to  sell  or 
deliver,  under  the  void  contrac|;s,  because 
neither  party  is  bound  to  take  t)r  deliver 
any  amount  or  quantity  of  those  articles 
thereunder.  Cold  Blast  Transp.  Co.  v.  Kan- 
sas City  Bolt  &  Nut  Co.  52  C.  C.  A.  25,  114 
Fed.  77,  57:  696 

109a.  An  accepted  offer  to  sell  or  deliver 
articles  at  specified  prices  durino;  a  limited 
time,  in  such  amounts  or  quantities  as  t'le 
acceptor  may  want  or  desire  in  his  business, 
without  any  statement  of  the  amount  or 
quantity,  is  without  consideration  and  void, 
because  the  acceptor  is  not  bound  to  want, 
desire,  or  take  any.  Id. 

110.  There  is  no  agreement  to  furnish  any 
definite  number  of  passengers,  on  the  part  of 
one  who  writes  to  a  steamship  company  for 
rates  saying  that  he  is  advised  that  upon 
favorable  terms  a  party  of  about  175  to  200 
or  more  could  be  secured,  and,  after  rates 
have  been  sent  him  by  the  steamship  com- 
pany without  mentioning  any  definite  num- 
ber, writes  again  that  he  is  advised  that 
there  is  a  "probability  that  there  will  be 
250  people  or  more"  in  the  party,  although 
the  steamship  company  in  reply  "beg  to 
confirm' the  understanding  arrived  at"  that 
not  less  than  75  first-class,  75  second-class, 
and  100  third-class  passengers  shall  be  fur- 
nished, where  in  reply  to  this  he  accepts  the 
rates  and  in  regard  to  numbers  reiterates 
his  foi-mer  statement  of  a  probability  that 
the  party  will  exceed  250,  adding  that  he 
has  not  been  furnished  information  as  to  the 
exact  number  of  each  class.  Barrow  S.  S. 
Co.  V.  Mexican  C.  R.  Co.  134  N.  Y.  15,  31 
N.  E.  261,  17:359 

4.  Offers    and    Their    Acceptance    or   With- 
drawal. 

r 

Option    to    Purchase    Corporate    Stock,    see 

Corporations,  430-438. 
Burden  of  Proving  Acceptance,  see  Evidence, 

650. 
Passing  of  Title,  see  Sale,  13-17. 
Acceptance  by  Purchaser,  see  Sale,  I.  d. 
Specific  Enforcement  of  Option,  see  Specific 

Performance,  11,  10,  17. 
Vote  by  Town  as  Offer,  see  Towns,  23. 
See  also  supra,  31,  109,  110;  infra,  809. 
For  Editorial  Notes,  see  infra,  VIII.  §§  10, 

13. 

111.  The  acceptance  of  an  offer  to  furnish 
eoal  for  a  year  at  a  certain  price  to  three 


steamers  named,  which  are  then  employed 
on  a  certain  steamship  line,  makes  a  defi- 
nite and  binding  contract.  Wells  v.  Alex- 
andre, 130  N.  Y.  642,  29  N.  E.  142,       15:  218 

112.  If  a  notice  that  coal  is  needed  is  req- 
uisite to  the  execution  of  a  contract  to  sup- 
ply certain  steamers  with  coal  for  one  year, 
a  covenant  to  give  such  notice  will  be  in- 
ferred. Id. 

113.  The  nonexercise  of  an  option  at  the 
appointed  time  is  not  waived  by  a  reply,  by 
the  one  who  offered  it,  to  a  belated  de- 
mand that  he  comply  with  his  offer,  asking 
time  to  consider,  and  a  subsequent  offer  of 
a  compromise,  which  is  rejected.  Page  v. 
Shainwald,  169  N.  Y.  246,  62  N.  E.  356, 

57:  173 
Necessity  of  acceptance. 
Offer  of  Reward,  see  Reward,  1. 
See  also  infra,  305. 

114.  A  mere  proposal  to  sell  land  does  not 
become  a  sale  until  accepted,  and  notice  of 
acceptance  given  the  proposer.  Dver  v. 
Duffy,  39  W.  Va.  148,  19  S.  E.  540,       24:  339 

115.  To  make  a  vote  of  a  corporation  a 
contract  which  will  be  binding  on  it,  the 
obligation  Which  it  undertakes  to  assume 
must  be  offered  to  and  accepted  by  the  in- 
tended beneficiary.  Sears  v.  Kings  County 
Elev.  R.  Co.    152  Mass.   151,  25  N.  E.  98. 

9:  117 
SuflSciency. 
See  also  infra,  128. 
For  Editorial  Notes,  see  infra,  VITI.  §  10. 

116.  Acceptance  of  a  contract  by  assent- 
ing to  its  terms,  holding  it  and  acting  upon 
it,  may  be  equivalent  to  a  formal  execution 
by  one  who  did  not  sign  it.  Sellers  v.  Greer, 
172  111.  549,  50  N.  E.  246,  40:  589 

]  17.  An  acceptance  of  an  offer  to  sell 
crude  oil  of  15  degrees  gravity,  with  the 
added  stipulation  that  it  must  be  of  that 
gravity  at  60  degrees  Fahrenheit,  is  not 
sufficient  to  constitute  a  binding  contract. 
Four  Oil  Co.  ■  v.  United  Oil  Producers,  145 
Cal.  623,  79  Pac.  366,  68:  226 

118.  If  to  the  acceptance  of  a  proposal  a 
condition  be  affixed  by  the  party  to  whom 
the  offer  is  made,  or  any  modification  or 
change  in  the  offer  be  made  or  requested, 
this  will,  in  law,  constitute  a  rejection  of  the 
offer.  Weaver  v.  Burr,  31  W.  Va.  736,  8  S. 
E.  743,  3:  94 

119.  An  acceptance  in  writing  of  a  formal 
and  carefully  prepared  option  of  sale  of  land, 
within  the  time  allowed  by  it  for  acceptance, 
using  the  formal  words,  "according  to  terms 
of  the  option  given  me,"  to  which  there  is 
added,  by  the  conjunction  "and,"  a  request 
for  a  departure  from  its  terms  as  to  the 
time  and  place  of  performance,  is  uncondi- 
tional, and  converts  the  option  into  an  ex- 
ecutory contract  of  sale.  Turner  v.  McCor- 
mick,  56  W.  Va.  161,  49  S.  E.  28,       67:  853 

120.  A  written  offer  of  land  at  a  certain 
price  for  cash,  giving  a  privilege  of  purchase 
within  sixty  days,  is  not  accepted  so  as  to 
make  a  binding  contract  by  a  letter  an- 
nouncing a  determination  to  take  the  land, 
and  a  readiness  to  pay  therefor  so  soon  as 
it  should  be  conveyed  by  proper  deed.  To 
make    the    contract    binding,    there    should 


672 


CONTRACTS,   I.  e,  1. 


have  been  an  unconditional  acceptance  com- 
municated, with  payment  or  tender  of 
rash,  within  the  sixty  days.  Weaver  v. 
Burr,  31  W.  Va.  736,  8*S.  E.  743,  3:  94 

Withdrawal  of  offer. 
See  also  supra,  72. 

121.  An  agreement,  without  considera- 
tion, giving  an  option  to  purchase  real  es- 
tate, may  be  revoked  at  any  time  before  it 
is  accepted,  and  a  revocation  is  effected  by 
a  sale  and  conveyance  of  the  property  to  a 
stranger.  Frank  v.  Stratford-Handcock,  13 
Wyo.  37,  77  Pac.  134,  67:571 

e.  Formal  Requisites;  Statute  of  Frauds. 

1.  In  General;  Personal  Property. 

Parol  Modification  of  Written  Contract,  see 

infra,  756-758. 
Necessity  of  Seal  on  Contract  for  Life  An- 
nuity, see  Annuities,  8-10. 
Oral  Ante-nuptial  Agreement  as  Considera- 
tion for  Note,  see  Bills  and  Notes,  39. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

331-335. 
Parol  Evidence  to  Vary  Written  Contract, 

see  Evidence,  VL 
Oral  Insurance  Contract,  see  Insurance,  203, 

204,   208. 
Parol   Modification   of   Insurance   Contract, 

see  Insurance.  238. 
I'arol  Assignment  of  Insurance  Policy,  see 

Insurance,  720,  721. 
Necessity    of    Pleading   Statute   of   Frauds, 

see  Pleading,  498. 
Mode    of    Raising    Defense   of    Statute    of 

Fraurls.  see  Pleading,  535,  536. 
Specific  Performance  of  Oral  Contract,  see 

Specific  Performance,  I.  b. 
Parol  Negotiations  on  Sunday,  see  Sunday, 

28. 
\s  to  Pari)l  Trusts,  see  Trusts.  1.  c. 
See  also  supra,  4,  86;  infra,  832,  833,  837. 
For  Editorial  Notes,  see  infra,  VIII.  §§  11- 

20. 

122.  A  c-ontract  within  the  statute  of 
frauds  is  not  void,  but  merely  voidable. 
[,owman  v.  Sheets,  124  Ind.  416,  24  N.  E. 
.351,  7:784 

123.  Where  a  number  of  contracts  are 
made  at  the  same  time  and  as  part  of  the 
same  transaction,  some  of  which  are  within 
the  statute  of  frauds  and  the  others  not, 
and  they  are  of  such  a  nature  ib-xt  they  can 
reasonably  be  considereu  as  separate,  the 
former  will  be  enforced  although  the  latter 
are  avoided.  Id. 

124.  Tlio  party  to  be  charged  niay  waive 
the  necessity  of  the  writing  required  by  the 
statute  of  frauds  and  thereby  make  the 
contract  binding.  St.  Louis,  K.  &  N.  W. 
R.  Co.  V.  Clark.^  121  Mo.  169.  25  S.  W.  192, 
906,  26:  751 

125.  A  court  of  e(|uity  cannot  give  effect 
to  a  contract  declared  void  by  the  statute  of 
frauds  under  the  pretext  of  aiding  an  at- 
tempt to  execute  a  contract.  Blonmfielrt 
State  Bank  v.  Miller.  55  Neb.  243.  75  N.  W. 
569.  44:   387 

126.  The  exception  of  the  statute  of  frauds 
in  reference  to  estates  arising  by  act  or  op- 


eration of  law  does  not  embrace  cases  where 
the  creation  of  the  estate  depends  solely 
upon  the  contract.  Id. 

Further  writing  contemplated. 
Question  for  Jury  as  to,  see  Trial,  239,  240. 
For  Editorial  No^tes,  see  infra,  VIII.  §§  12, 
13. 

127.  The  fact  that  an  express  contract 
contemplates  another  more  formal  contract 
with  a  corporation  in  which  the  contractee 
is  largely  interested  does  not  affect  its  bind- 
ing powers.  Drummond  v.  Crane,  159  Mass. 
577,  35  N.  E.  90,  23:  707 

128.  Letters  and  telegrams  which  consti- 
tute an  offer  and  acceptance  of  a  proposi- 
tion complete  in  its  terms  may  constitute 
a  binding  contract,  although  there  is  an  un- 
derstanding that  the  agreement  shall  be  ex- 
pressed in  a  formal  writing,  and  one  of  the 
parties  afterwards  refuses  to  sign  such  an 
agreement  without  material  modifications. 
Sanders  v.  Pottlitzer  Bros.  Fruit  Co.  144  N. 
Y.  209,  39  N.  E.  75,  29:  431 
Sale  of  personal  property;  manufacture. 
Effect  of  Part  Performance,  see  infra,  233, 

234. 
Payment  on  Contract   within   Statute,  see 

Assumpsit,  4. 
Oral   Evidence   to   Vary   Written  Contract, 

see  Evidence,  1069. 
See  also  infra,  165,  185,  186,  195. 
For  Editorial  Notes,  see  infra,  VIII.  §  20. 

129.  A  parol  agreement  to  sell  and  assign 
a  bond  and  mortgage  is  a  contract  for  the 
sale  of  goods,  wares,  and  merchandise,  with- 
in the  statute  of  frauds.  Greenwood  v.  Law 
(N.  J.  Err.  &  App.)  55  N.  J.  L.  168,  26  Atl. 
134,  19:  688 

130.  The  oral  promise  of  brokers,  that  if 
their  principal  is  dissatisfied  with  bonds 
which  they  have  purchased  for  him  they  will 
take  them  off  his  hands  at  what  they  cost 
him,  upon  request,  is  not  a  contract  for  the 
sale  of  goods,  things  in  action,  etc.,*  within 
that  section  of  the  statute  of  frauds  relat- 
ing to  sales  of  personal  property  for  more 
than  $50;  but  is  a  provision  for  the  re- 
scission of  the  entire  contract,  and  is  valid. 
Johnston  v.  Trask,  116  N.  Y.  136.  22  N.  E. 
377,  5:  630 

131.  A  sale  of  growing  grain  to  be  deliv- 
ered in  a  marketable  condition, — 'harvested 
and  threshed, — where  no  part  is  delivered 
and  none  of  the  purchase  price  is  paid,  is  not 
taken  out  of  the  statute  of  frauds  by  an  ex- 
ception as  to  ])ersonal  property  on  which 
"labor,  skill,  or  money  are  necessarily  to  be 
expended  in  producing  or  procuring  the 
same,"  if  no  special  skill,  labor,  or  work- 
manship is  necessary,  but  only  such  as  a 
good  husbandman  would  be  compelled  to  ex- 
pend in  fitting  the  grain  for  market.  Mig- 
hell  v.  Dougherty,  86  Iowa.  480,  53  N.  W. 
402,  17:  755 

132.  A  contract  to  cut,  furnish,  and  deliv- 
er the  stone  work  of  a  building  is  excepted 
from  the  statute  of  frauds,  under  Cal.  Civ. 
Code,  §  1740,  as  "an  agreement  to  manufac- 
ture a  thing  from  materials  furnished  by 
the  manufacturer  or  another  person." 
Flvnii  V.  Doughertv,  91  Cal.  669.  27  Pae. 
1080,  '  14:  230 


CONTRACTS,   I.  e,  2. 


67fl 


133  A  contract  to  furnish  material  and 
attach  it  to  realty  after  performinnr  labor 
thereon,  making  it  a  part  of  a  buildinjr.  is 
not  a  sale  of  goods  or  chattels  within  the 
statute  of  frauds.  Brown  &  H.  Co.  v.  Wim- 
der,  64  Minn.  450,  67  N.  W.  357,       32:  593 

134.  A  contract  for  the  manufacture  of 
articles  of  special  and  peculiar  design,  not 
suitable  for  general  trade,  is  not  for  the 
sale  of  goods  and  chattels  within  the  stat- 
ute of  frauds.  Id. 

135.  A  contract  to  manufacture  a  monu- 
ment is  not  within  the  statute  of  frauds, 
although  there  is  no  agreement  to  bestow 
personal  skill  and  labor  upon  it,  or  anything 
to  prevent  the  contractor  from  purchasing 
it  elsewhere  in  whole  or  in  part,  instead  of 
manufacturing  it  from  his  own  quarry  and 
in  his  own  shop.  Forsyth  v.  Mann  Bros.  68 
Vt.  116,  34  Atl.  481,  -^         32:  788 

136.  An  oral  contract  to  manufacture 
and  furnish  ironwork  for  a  brick  building 
according  to  special  designs  and  measure- 
ments, suitable  only  for  use  in  that  partic- 
ular building,  is  not  within  the  statute  of 
frauds  as  a  sale  of  personal  property. 
Heint?  v.  Burkhard.  29  Or.  55,  43  Pac.  866. 

31:508 

2.  Collateral  Contracts;   Debts  of  Others. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

333. 
See  Hhn  infra.  216;    Principal  and  Agent,  70. 
For  Editorial  Notes,  see  infra,  VIII.  §  18. 

137.  The  promise  to  accept  an  order  of 
another  person,  made  to  procure  him  credit 
with  a  third  person,  is  within  the  statute 
of  frauds.  Allen  v.  Leavens,  26  Or.  164,  37 
Pac.  488,  26:  620 

138.  A  promise  by  a  third  person  to  pay 
for  articles  if  the  seller,  who  is  holding  them 
as  security  for  the  price,  will  turn  them 
over  to  the  purchaser,  is  a  collateral  prom- 
ise, and  must  be  in  writing  if  the  original 
purchaser  is  not  thereby  released.  Gray  v. 
Herman,  75  Wis.  453,  44  N.  W.  248,    6:  691 

139.  A  promise  by  a  board  to  pay  for 
heating  apparatus  for  a  public  building, 
made  to  induce  the  completion  thereof  by 
the  other  party,  who  had  already  partly 
furnished  it  under  agreement  with  the  chief 
contractor  for  the  building,  who  had  made 
default  in  payment,  is  an  original,  and  not 
a  collateral,  contract  within  the  statute  of 
fraiids.  Gibson  County  v.  Cincinnati  Steam 
Heating  Co.  128  Ind.  240,  27  N.  E.  612, 

12:  502 

140.  An  oral  promise  by  the  payee  of  a 
note  to  save  certain  makers  harmless  is 
within  the  statiite  of  frauds.  Mo.  Rev.  Stat. 
1889.  5  5186.  Hurt  v.  Ford.  142  Mo.  283.  44 
S.  W.  228.  41 :  823 

141.  Whether  the  contract  is  original  or 
collateral,  where  a  man  has  indorsed  a  note 
in  blank  as  an  accommodation,  and  has 
written  on  the  face  the  words  "Credit  the 
drawer,"  if  the  note  is  for  more  than  $50, 
must  be  determined,  under  the  Pennsylvania 
statute   of  frauds   of   1855.   without    regard 

L.R.A.  Dig.— 43, 


to  any  parol  testimony.     Temple  v.  Baker, 
125  Pa.  634,  17  Atl.  516,  3:  709 

142.  A  parol  contract  to  pay  another's 
note  to  a  third  person  is  void  under  the 
statute  of  frauds,  although  in  consideration 
of  the  promise  the  promisor  receives  a  con- 
veyance of  real  estate  from  a  surety  on  the 
note,  which  he  had  received  from  the  maker 
as  indemnity  against  his  liability  thereon. 
Lowe  V,  lurpie,  147  Ind.  652,  44  N,  E.  25, 
47  N.  E.  150,  37:  233 
Contracts  with  or  between  sureties. 

For  Editorial  Notes,  see  infra,  VIII.  §   18. 

143.  A  special  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another, 
within  the  statute  of  frauds,  is  made  by 
the  promise  of  a  father,  upon  inducing  a 
third  person  to  become  surety  for  his  son, 
to  reimburse  the  surety  if  the  son  fails  to 
pay  the  debt.  Hartlev  v.  Sandford  (N.  J. 
Err.  &  App.)  66  N.  J.  L.  627.  50  Atl.  454, 

55:   206 

144.  An  agreement  by  one  person  to  in- 
demnify another  against  loss  if  he  will  be- 
come the  surety  upon  the  bond  of  himself 
and  another  as  administrators  is  not  a  col- 
lateral promise,  within  the  statute  of  frauds, 
as  to  any  liabilitv  occasioned  by  the  de- 
fault of  the  other  administrator,  who  did 
not  request  such  signature.  Tighe  v,  Morri- 
son,  116  N.  Y.   263,  22  N.  E.   164,       5:  617 

145.  A  contract  between  cosureties  fix- 
ing the  proportion  and  extent  of  their  sev- 
eral or  correlative  liability  as  between  them- 
selves is  not  within  the  statute  of  frauds. 
Rose  V.  Wollenberg,  31  Or.  269,  44  Pac.  382, 

39:  378 
By  widow. 

146.  An  oral  promise  by  a  wife,  who  is  the 
beneficiary  of  her  husband's  certificate  in  a 
fraternal  beneficiary  society,  to  pay  his 
debts,  is  within  the  statute  of  frauds. 
Fisher  v.  Donovan,  57  Neb.  361,  77  N,  W, 
778,  44:  383 

146a.  A  promise  by  a  widow  who  has  ap- 
propriated the  estate  of  her  deceased  hus- 
band to  her  own  use,  and  thereby  become  lia- 
ble for  claims  against  it,  to  pay  such  a  claim 
and  prevent  suit,  is  not  a  promise  to  pay  tne 
debt  of  another  within  the  statute  of  frauds, 
French  v.  French,  84  Iowa,  655,  51  N.  W.  145, 

15:  300 
By  administrator. 

147.  A  verbal  promise  by  the  administra- 
tor of  an  estate  holding  a  mortgage  against 
a  third  person,  to  pay  taxes  assessed  against 
tihe  mortgagor  if  the  collector  will  not  levy 
on  the  mortgaged  property,  upon  which  he 
has  no  lien,  is  within  the  statute  of  frauds, 
and  not  enforceable.  Dillaby  v.  Wilcox,  60 
Conn.  71,  22  Atl.  491,  13:  643 
By  infant. 

148.  The  contract  of  a  minor  to  repay 
money  borrowed  of  a  bank  is  not  so  far  void 
that  the  contract  of  a  third  person  to  an- 
swer for  it  on  his  default  will  be  an  original 
contract,  and  not  a  collateral  one,  which 
must  be  in  writing  under  the  statute  of 
frauds.  Bro^vn  v.  Farmers'  &  M.  Nat.  Bank. 
88  Tex.  265,  31  S.  W.  285.  33:  359 


674 


CONTRACTS.  I.  e,  3.  4. 


3.  Not  to  be  Performed  within  Year. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

332. 
For  Editorial  Notes,  see  infra,  VIII.  §  16. 

149.  The  statute  prohibiting  the  making 
of  contracts  by  parol  which  are  not  to  be 
performed  within  one  year  has  no  applica- 
tion to  a  contract  which  has  been  fully  per- 
formed by  one  of  the  parties.  Lowman  v. 
Sheets,  124  Ind.  416,  24  N.  E.  351,        7:  784 

150.  Ihe  fact  that  an  agreement  whose 
performance  would  otherwise  extend  beyond 
a  year  may,  by  the  happening  of  some  con- 
tingency, be  completely  performed  within  a 
year,  takes  it  out  of  the  statute  of  frauds. 
Camig  V.  Carr,  167  Mass.  544,  46  N.  E.  117, 

35:  512 

151.  A  parol  agreement  to  keep  and  main- 
tain cattle  guards  on  each  side  of  a  person's 
land,  so  long  as  a  railroad  is  operated  over 
it,  need  not  be  in  writing  under  a  statute 
requiring  every  agreement  "not  to  be  per- 
formed within  one  year"  to  be  in  writing. 
Arkansas  M.  R.  Co.  v.  Whitley,  54  Ark.  199, 
15  S.  W.  465,     '  11:621 

152.  Under  a  statute  providing  that  a  con- 
tract "not  to  be  performed  within  a  year" 
must  be  in  writing,  an  agreement  to  sell 
corporate  stock  at  the  end  of  three  years  at 
a  certain  price,  and  also  that  the  stock  may 
be  called  at  any  time  before  expiration  of 
three  years,  is  valid  although  not  in  writing. 
Seddon  v.  Rosenbaum,  85  Va.  928,  9  S.  E. 
326,  3:  337 
Cantract  which  may  be  ended  by  death  with- 
in year. 

For  Editorial  Notes,  see  infra,  Ylll.  §  16. 

153.  If  by  its  terms  or  by  reasonable  con- 
struction, a  contract  not  in  writing  can  be 
fully  performed  or  if  it  can  be  performed 
on  one  side  within  a  year,  although  it  can 
be  done  only  by  the  occurrence  of  some  im- 
probable event, — as  the  death  of  the  person 
referred  to, — it  is  not  within  the  statute  of 
fraufls.  Thomas  v.  Armstrong,  86  Va.  323, 
10  S.  E.  6,  .    5:  529 

154.  A.  promise  to  provide  for  the  support 
and  education  of  a  minor  fourteen  or  fifteen 
years  old  until  he  becomes  twenty-one  years 
of  age  is  not  a  contract  "not  to  be  performed 
within  a  year,"  within  the  meaning  of  the 
statute  of  frauds  requiring  such  contracts 
to  be  in  writing,  as  it  may  be  performed 
within  a  year  if  the  child  should  die  within 
that  time.    Wooldridge  v.  Stern,  42  Fed.  311, 

9:  129 

155.  An  agreement  to  give  a  pass  to  a  man 
and  his  family  annually  for  ten  years,  and  to 
stop  trains  at  his  house  to  let  them  on  and 
off  during  that  period,  is  not  within  the  stat- 
ute of  frauds  as  an  agreement  which  cannot 
be  performed  within  one  year,  since  the 
death  of  each  member  of  the  family  within 
the  year  would  end  the  contract.  Weather- 
ford.  Mineral  Wells  &  N.  W.  R.  Co.  v.  Wood. 
88  Tex.  191,  30  S.  W.  859.  28:  526 
Contract  to  marry. 

156.  A  contract  to  marry  is  not  within  the 
provision  bf  the  statute  of  frauds  requiring 
agreements  not  to  be  performed  within  a 


year  to  be  in  writing.     Lewis  v.  Tapman, 
90  Md.  294,  45  Atl.  459,  47 :  385 

157.  A  contract  to  marry  "within  three 
years"  may  possibly  be  performed  within 
a  year,  and  is  therefore  not  within  a  pro- 
vision of  the  statute  of  frauds  as  to  "an 
agreement  not  to  be  performed  within  a 
year."  Id. 
Of  partnership. 

158.  A  contract  forming  a  partnership  to 
be  continued  beyond  one  year  is  void  unless 
in  writing;  and  a  partnership  so  formed  is  a 
partnership  at  will.  Wahl  v.  Barnum,  116 
N.  Y.  87,  22  N.  E.  280,  5:  623 
Lease. 

As  to  Leases  Generally,  see  infra,  180-184. 
Of  Married  Woman's  Separate  Estate,  see 

Husband  and  Wife,  134. 
Term  of  Tenant  Entering  under  Oral  Lease, 

see  Landlord  and  Tenant,  38,  39,  41-43. 
See  also  infra,  217. 
For  Editorial  Notes,  see  infra,  VTII.  §  19. 

159.  A  parol  lease  of  real  estate  for  the 
term  of  one  year  commencing  in  futuro  is 
invalid,  under  Minn.  Gen.  Stat.  chap.  41, 
tit.  2,  being  an  agreement  which  by  its 
terms  is  not  to  be  performed  within  one  year 
frem  the  making  thereof.  Jellett  v.  Rhode, 
43  Minn.  166,  45  N.  W.  13,  7:  671 

160.  A  parol  agreement  made  in  March, 
permitting  one  who  was  to  take  possession 
of  a  farm  as  tenant  April  1  next,  under  a 
lease  for  one  year,  to  use  the  ice  in  an  ice 
house  thereon  without  charge,  if  he  would 
refill  it  so  as  to  leave  it  filled  when  he  sur- 
rendered possession,  is  not  void  as  not  to  be 
performed  within  a  year  from  the  making  of 
it.  Brown  v.  Throop,  59  Conn.  596,  22  Atl. 
436,  13:  646 

161.  A  lease  made  December  15,  1887,  for 
the  year  1888,  may  be  valid,  although  not  in 
writing,  under  Miss.  Code,  §  1292,  excepting 
from  the  necessity  of  writing  a  lease  for  not 
longer  than  one  year.  McCroy  v.  Tonev.  66 
Miss.  233,  5  So.  *392,  2':  847 

162.  An  oral  lease  of  land  for  one  year, 
with  the  privilege  of  three,  at  an  annual 
rent,  is  for  a  longer  period  than  a  year 
within  the  statute  of  frauds,  notwithstand- 
ing the  lessee's  option,  since  he  could  not 
compel  the  execution  of  the  lease  for  a  year, 
because  the  contract  contemplates  the  exer- 
cise of  the  option  after  the  execution  of  the 
lease.  Hand  v.  Osgood,  107  Mich.  55,  64  N. 
W.  867,  30:  379 

'  163.  Although  an  oral  agreement  for  an 
extended  lease  after  the  expiration  of  an 
existing  one  is  void  as  extending  beyond  a 
year,  it  may  be  considered  as  tending  to 
show  that  the  holding  was  not  upon  the 
terms  of  the  original  lease.  Weber  v.  Pow- 
ers, 213  111.  370,  72  N.  E.  1070,  68:  610 

4.  Contracts  as  to  Realty. 

Sufficiencv  of  Writing  as  to,  see  infra,  I. 

e,  5.' 
Effect  of  Fraud  or  Part  Performance,  see  in- 

frn.  I.  e,  6.  6. 
Invalidity  of  Note  Given  as  Forfeit  in  Case 

of  Nonperformance,  see  Bills  ajid  Notes, 

15, 


CONTliACTS,  I.  e,  4. 


6:5 


C!onflict  of  Laws  as  to,  see  Conflict  of  Laws, 
335. 

Allowance  to  Purchaser  for  Improvements 
Made  on  Land,  see  Improvements,  7,  8. 

Parol  License,  see  License,  I. 

Specific  Performance  of,  see  Specific  Per- 
formance, I.  b. 

Parol  Trusts  in,  see  Trusts,  I.  c. 

See  also  infra,  782. 

For  Editorial  Notes,  sae  infra,  VIII.  §  19. 

164.  The  statute  of  frauds  is  in  force  in 
the  United  States  only  where  it  has  been 
adopted  by  legislative  enactment;  and  at 
common  law  an  oral  contract  for  real  es- 
tate is  valid.  McKennon  v.  Winn,  1  Okla. 
327,  33  Pac.  582,  22:  501 

165.  An  entire  contract  relating  to  person- 
al as  well  as  real  estate,  if  void  as  to  the  real 
estate,  under  the  statute  of  frauds,  is  void 
as  to  the  personal  property  also.  Pond  v. 
Sheearx,  132  111.  312,  23  N.  E.  1018,        8:  414 

166.  An  agreement  by  a  vendor,  on  rescis- 
sion of  a  contract,  to  reimburse  the  other 
party  for  expenditures  upon  the  land,  is  not 
within  the  statute  of  frauds.  Houston  v. 
Sledge,  101  N.  C.  640,  8  S.  E.  145,  2:  487 

167.  A  verbal  agreement  is  not  sufficient 
to  create  a  lien  upon  land  in  favor  of  a  sure- 
ty upon  a  note  given  to  raise  the  money 
with  which  to  make  pavment  therefor.  Wood 
v.  Wood,  124  Ind.  545,  24  N.  E.  751,        9:  173 

108.  An  oral  agreement  will  not  be  effec- 
tual to  surrender  the  equitable  title  of  a 
grantor  who  has  delivered  a  deed  to  the 
grantee  upon  certain  conditions,  thereby, 
contrary  to  the  supposition  of  both  parties, 
conveying  the  leeal  title.  Darling  v.  Butler, 
45  Fed.  332,         '  10:  469 

As  to  boundaries. 

169. 'Disputed  boundaries  between  adjoin 
ing  lands  may  be  settled  by  express  parol 
agreement,  executed  immediately  and  ac- 
companied by  possession  according  to  such 
agreement.  Teass  v.  St.  Albans,  38  W.  Va. 
1,  17  S.  E.  400,  19:  802 

169a.  A  verbal  agreement  recognizing  a 
boundary  line  which  is  not  then  in  dispute 
is  not  binding  as  to  the  boundary. — espe- 
cially when  made  by  a  lessee  who  had  no 
authority  to  make  any  agreement  on  the 
subiect.  Northern  Pine  Land  Co.  v.  Bigelow, 
84  Wis.  157,  54  N.  W.  496,  21:  776 

169b.  Where  there  is  doubt  or  ignorance  as 
to  the  true  locality  of  a  boundary  line,  al- 
though it  might  easily  be  removed  by  a  sur- 
vey, a  parol  agreement  between  adjoin- 
ing owners  fixing  the  line  is  not  within  the 
statute  of  frauds.  Galbraith  v.  Lunsford, 
87  Tenn.  89,  9  S.  W.  ,365,  1 :  522 

Party  wall. 

170.  A  parol  contract  as  to  a  party  wall 
which  is  not  different  from  that  which  the 
law  makes  is  not  void  under  Iowa  Code,  § 
3030,  which  provides  that  special  agreement 
about  such  walls  must  be  in  writing.  Swift 
V.  Calnan,  102  Iowa,  206,  71  N.  W.  233, 

37:  462 
Partnership. 
For  Editorial  Notes,  see  infra,  \TTI.  §  19. 

171.  An  oral  agreement  of  partnership  in 
the  profits  of  buying  and  selling  real  prop- 


erty is  not  within  the  statute   of   frauds. 
Bates  V.  Babcock,  95  Cal.  479,  30  Pac.  605, 

16:  745 
Flower  v.  Bamekoff,  20  Or.  132,  25  Pac.  370, 

11:  149 
Reed  v.  Meagher,  14  Colo.  335,  24  Pac.  681, 

9:  455 

172.  A  partnership  agreement  to  acquire 
a  leasehold  interest  in  a  particular  mine,  as 
a  necessary  incident  to  the  development  of 
the  property  and  the  extraction  of  ores 
therefrom,  is  not  within  the  statute  of 
frauds,  although  the  interest  in  the  mine 
was  to  be  acquired  oy  one  who  was  to  trans- 
fer to  the  others  their  respective  interests. 
Reed  v.  Meagher,  14  Colo.  335,  24  Pac.  681, 

9:  455 
Easement;  license. 

173.  An  instrument  creating  an  easement 
is  within  the  operation  of  the  statute  of 
frauds.  Nunnelly  v.  Southern  Iron  Co.  94 
Tenn.  397,  29  S.  W.  361,  28:  421 

174.  The  right  of  drainage  through  the 
lands  of  another  is  an  easement  requiring 
for  its  enjoyment  an  interest  in  such  lands, 
which  cannot  be  conferred  except  by  deed  or 
conveyance  in  writing.  Pifer  v.  Brown,  43 
W.  Va.  412,  27  S.  E.  399,  49:  497 

175.  A  parol  grant  of  the  right  to  attach 
booms  to  trees  on  the  banks  of  a  stream  is 
not  valid  as  against  a  subsequent  grantee 
of  the  land.  Smith  v.  Atkins,  110  Ky.  119. 
60S.  W.  930,  53:790 

176.  A  parol  license  to  do  any  act  on  the 
land  of  another  does  not  trench  upon  the 
policy  of  the  law  which  requires  that  con- 
tracts respecting  any  title  or  interest  in  real 
estate  shall  be  by  deed  or  in  writing.  It 
gives  the  licensee  no  estate  or  interest  in  the 

"I  land,  but  excuses  acts  done  which  would  be 
trespass  or  otherwise  unlawful.  Hodgkins  v. 
Farrington,  150  Mass.  19,  22  N.  E.  73, 

5:209 

177.  A  paramount  right  to  subject  an- 
other's land  to  a  particular  use,  to  enter  up- 
on it  or  maintain  structures  upon  it  without 
the  consent  of  the  owner,  is  an  interest  in 
the  land  which  cannot  pass  without  the  for- 
malities required  by  the  statute.  Id. 
Fixtures. 

178.  A  parol  reservation  of  a  bam  when 
conveying  the  real  estate  of  which  it  is  a 
part,  by  absolute  warranty  deed,  is  ineffec- 
tual to  retain  title  in  the  grantor.  Leonard 
V.  Clough,  133  N.  Y.  292,  31  N.  E.  93, 

16:  305 

179.  A  parol  gift  is  ineffectual  to  transfer 
title  to  a  barn  which  is  part  of  the  real  es- 
tate. Id. 
Lease. 

Parol  Waiver  of  Stipulation  in,  see  infra, 
758. 

Admissibility  of  Lease  not  Complying  with 
Statute  of  Frauds,  see  Evidence,  916. 

Lease  of  Married  Woman's  Separate  Estate, 
see  Husband  and  Wife,  134. 

Effect  of  Parol  Surrender  of  Leased  Prem- 
ises, see  Landlord  and  Tenant,  67. 

Right  to  Distrain  for  Rent  under,  see  Land- 
lord and  Tenant,  224. 

See  also  supra,  159-163. 

For  Editorial  Notes,  see  infra,  Vm.  §  19. 


676 


CONTRACTS,  I.  e.  5. 


180.  Authority  to  execute  a  lease  for  a 
term  not  exceeding  three  years  may  be  con- 
ferred by  parol.  Marshall  v.  Kugg,  6  Wvo. 
270,  44  Pac.  700,  45  Pac.  486,  33:  679 

181.  That  a  lease  was  not  signed  by  the 
lessee  as  required  by  the  statute  of  frauds 
is  not  sufficient  to  protect  him  from  an  ac- 
tion for  waste  committed  during  his  occu- 
pation of  the  premises.  Id. 

182.  An  action  by  a  tenant  against  his 
landlord  for  an  alleged  breach  of  a  verbal 
lease  of  the  premises  for  five  years  cannot 
be  maintained  where  the  landlord  either  de- 
nies making  the  contract  or  pleads  the  stat- 
ute of  frauds  in  bar  of  the  action,  since  no 
testimony  can  be  admitted  to  prove  the  parol 
contract.  Browning  v.  Berry,  107  N.  C.  231, 
12  S.  E.  195,  10:  726 

183.  The  words  "two-thirds  part  at  the 
least  of  the  thing  demised,"  in  tTie  exception 
as  to  leases  for  not  more  than  three  years, 
in  the  statute  of  frauds,  mean  two-thirds 
part  of  the  rental  value  of  the  demised  prem- 
ises, and  not  of  the  value  of  the  fee.  Child- 
ers  v.  Lee,  5  X.  M.  576,  25  Pac.  781,      12:  67 

184.  A  contract  with  a  tenant  under  a 
lease  for  a  year,  to  pay  Him  for  any  build- 
ings put  up  for  his  own  use,  at  the  end  of 
the  tenancy,  at  their  value  at  that  time,  ia 
not  for  an  interest  in  land,  and  need  not  be 
in  writing.  South  Baltimore  Co.  v.  Muhl- 
bach,  69  Md.  395,  16  Atl.  117,  1:  507 
Sale  of  timber. 

See  also  infra,  263. 

For  Editorial  Notes,  see  infra,  VIII.  §  19. 

185.  A  parol  sale  of  growing  timber  is 
not  within  §  4  of  the  statute  of  frauds  in 
Maryland.  Leonard  v.  Medford.  85  Md.  666. 
37  Atl.  365,  37:449 

186.  A  sale  of  standing  timber,  whether 
or  not  the  parties  contemplate  its  immediate 
severance  and  removal  by  the  vendee,  is  a 
contract  concerning  an  interest  in  lands 
within  the  meaning  of  the  statute  of  frauds, 
and  is  voidable  by  either  party  if  not  in 
writing.  Hirth  v.  Graham,  50  Oliio  St.  57, 
33  N.  E.  90,  19:  721 
To  convey  or  reconvey. 

See  also  infra,  194. 

187.  A  valid  oral  contract  for  the  sale  of 
real  estate,  or  an  interest  thereip,  can  be 
made  in  the  absence  of  statutory  restrictions. 
McKennon  v.  Winn,  1  Okla.  327,  33  Pac.  582. 

22:  501 

188.  A  parol  contract  in  consideration  of 
a  deed  to  certain  real  estate  to  convey  to  the 
grantor  certain  other  real  estate,  of  which 
he  is  not  put  in  possession,  is  invalid  under 
the  statute  of  frauds.  Lowe  v.  Turpie,  147 
Ind.   652.  44  N.   E.  25.   47   N.  E.    150, 

37:233 
180.  An  agreement  to  reconvey  land  which 
had  been  conveyed  as  a  mortgage,  upon  pay- 
ment of  the  mortgage  debt,  is  not  a  contract 
for  the  sale  of  an  interest  in  lands.  Avithin 
the  statute  of  frauds.  Mussev  v.  Yates,  65 
Vt.  449,  27  Atl.  167,  21:  516 

190.  An  absolute  title  in  fee  simple  cannot 
be  nullified  by  oral  evidence  of  an  alleged 
extrinsic  agreement  by  the  grantee  to  re- 
convey   on   a    condition   subsequent   not   in- 


cluded in  the  writing.     Brock  v.  Brock,  90 
Ala.  86,  8  So.  11,  9:  287 

191.  Where  there  was  no  fraud  in  the  ex- 
ecution of  a  conveyance  of  land,  equity  can 
not  relieve  against  a  breach,  by  the  grantee, 
of  a  contemporaneous  parol  promise  to  re- 
convey  the  lands  upon  the  happening  of  c 
certain  contingency.  I(L 
Promise  to  devise. 

For  Editorial  Notes,  see  infra,  VIII.  §  17. 

192.  A  parol  agreement  to  adopt  a  child 
as  heir,  and  to  leave  her  all  one's  property 
at  death,  is  within  the  statute  of  frauds, 
where  the  estate  at  death  consists  of  prop- 
erty of  which  a  parol  transfer  is  not  valid 
under  ibe  statute.  Austin  v.  Davis,  128  Ind. 
472,  26  N.  E.  890,  12:  120 

193.  An  agreement  to  pay  for  personal 
services  by  testamentary  provision,  which  in- 
cludes real  estate  as  well  as  personal  prop- 
erty, is  within  the  statute  of  frauds,  and, 
unless  evidenced  by  writing,  fails  as  to  the 
personalty  as  well  as  the  real  property. 
Ellis  V.  C'ary,  74  Wis.  176,  42  N.  W.  252,  352, 

4:  55 
Pond  V.  Sheean,  132  HI.  312,  23  N.  E.  1018, 

8:414 

194.  A  parol  agreement  to  convey  real  es- 
tate by  will,  made  in  settlement  of  a  law- 
suit, is  not  valid  under  the  statute  of  frauds, 
although  the  intended  devisee  in  consequence 
thereof  gives  up  valuable  rights.  Swash  v. 
Sharpstein,  14  Wash.  426,  44  Pac.  862, 

32:  796 
Promise  by  devisee. 

195.  A  parol  promise  to  a  testator  by  the 
sole  beneficiary  of  his  will,  to  dispose  of  a 
portion  of  the  property  in  favor  of  another 
person,  is  invalid  so  far  as  it  involves  the 
disposition  of  real  property,  or  of  personal 
property  of  an  amount  which  comes'  within 
the  statute  of  frauds.  Orth  v.  Orth,  145  Ind. 
184,  42  N.  E.  277,  44  N.  E.  17,  32:  298 

5.  Sufficiency  of  Writing. 

a.  In  General. 

Showing   Completed   Agreement    Satisfying 

Statute,  see  Evidence,  915. 
Necessity  of  Husband's  Joining  in  Deed,  see 

Husband  and  Wife,  134. 
See  also  Partnership,  83. 
For  Editorial  Notes,  see  infra,  VIII.  §  15. 

195a.  In  the  case  of  negligence  in  keeping 
the  records  of  proceedings  of  a  city  council 
resulting  in  a  contract  by  tne  city,  courts 
will  not  himt  for  technicalities  to  defeat 
rights  clearly  grounded  in  equity,  but  will 
give  a  liberal  interpretation  to  writings 
found,  in  order  to  satisfy  the  statute  ot 
frauds.  Stevens  v.  Muskegon,  111  Mifh.  72. 
69  N.  W.  227,  36:  777 

196.  A  written  petition  presented  to  the 
city  council  for  the  privilege  of  laying  a 
private  sewer  in  the  public  streets,  specifi- 
cally describins:  the  route,  followed  by  a 
resolution  of  the  council  referring  the  mat- 
tor  to  a  committee,  and  the  execution  of  a 
bond  by  the  petitioner  referrinc:  to  the  pe- 
tition and  it  approval. — constitute  a  con- 
tract in  writing  for  the  use  of  the  streeta 


CONTRACTS,  I.  e,  5. 


677 


sufficient  to  satisfy  the  statute  of  frauds. 

Id. 
Telegram. 
For  Editorial  Notes,  see  infra,  VIII.  §  15. 

197.  A  telegram  may  constitute  a  suffi- 
cient note  or  memorandum  of  a  contract  to 
satisfy  the  statute  of  frauds,  if,  when  read 
in  the  light  of  all  the  surrounding  circum- 
stances, it  plainly  shows  what  the  suoject 
of  the  contract  is,  the  parties  thereto,  and 
the  terms  upon  which  it  is  made.  Brewer 
V.  Horst-Lachmund  Co.  127  Cal.  643,  60  Pac. 
418,  50:  240 
Several  papers. 

For  Editorial  Notes,  see  infra,  VIII.  §  15. 

198.  The  relation  of  several  writings  or 
letters,  to  constitute  a  contract  within  the 
statute  of  frauds,  must  appear  from  the 
writings  themselves,  and  cannot  be  estab- 
lished by  parol  evidence.  Ross  •^.^  Allen,  45 
Kan.  231,  25  Pac.  570,  10:  835 

199.  A  written  agreement  for  a  sublease, 
"to  be  made  subject"  to  a  lease  not  yet  in 
existence,  but  which  is  to  be  obtained,  is  not, 
for  that  reason,  insufficient  under  the  stat- 
ute of  frauds  after  such  lease  is  obtained  in 
writing.  Freeland  v.  Ritz,  154  Mass.  257, 
28  N.  E.  226,  12:  561 

200.  A  series  of  papers  appearing  to  relate 
to  the  same  contract  may  constitute  a  suffi- 
cient memorandum  within  the  statute  of 
frauds,  although  only  one  of  them  is  signed 
by  the  party  to  be  charged.  Id. 

201.  The  provision  of  the  statute  of  frauds 
in  reference  to  a  note  or  memorandum  in 
writing  of  an  agreement  for  the  sale  and 
purcthaso  of  goods,  signed  by  the  party  to  be 
charged,  does  not  require  the  whole  agree- 
ment to  appear  in  a  single  writing;  but  it 
may  be  made  out  from  several  instruments 
or  written  memoranda  referring  one  to  the 
other,  and  which,  when  connected,  together 
are  seen  to  contain  all  the  necessary  ele- 
ments. Louisville  Asphalt  Varnish  Co.  v. 
Lorick,  29  S.  C.  533,  8  S.  E.  8,  2:  212 

202.  The  omission  of  one  or  more  of  the 
essential  elements  of  a  memorandum  of  the 
sale  of  real  property  under  the  statute  of 
frauds,  from  a  writing  containing  some  of 
the  elements  signed  by  the  appointee  in  a 
power  of  attorney  to  sell  that  particular 
land,  may  be  supplied  by  reference  to  the 
power  of  attorney,  which  contains  such  ele- 
ments. White  v.  Breen,  106  Ala.  159,  19 
So.  59,  32:  127 

203.  Several  different  writings  may  be 
read  together  as  constituent  parts  of  a 
memorandum  within  the  statute  of  frauds, 
where,  when  they  are  viewed  together  in 
the  light  of  the  situation  and  circumstances 
of  the  parties  at  the  time  they  were- writ- 
ten, they  show  unmistakably  that  they  re- 
late to  the  same  matter  and  constitute  sev- 
eral parts  of  the  one  connected  transaction 
although  there  is  no  express  reference  from 
one  to  the  other.  Id. 

204.  Where  a  verbal  order  is  given  to  an 
agent  lor  goods,  which  he  immediately  en- 
ters in  a  memoranlum  book,  and  the  pur- 
chaser subsequently  writes  to  the  other  par- 
ty: "Don't  ship  paint  ordered  through  your 
salesman:  we  have  concluded  not  to  handle 


it," — the  written  entry  by  the  agent,  taken 
in  connection  with  the  letter,  makes  such  a 
note  or  memorandum  in  writing  of  the  bar- 
gain as  will  satisfy  the  requirements  of  the 
statute  of  frauds.  Louisville  Asphalt  Var- 
nish Co.  V.  Lorick,  29  S.  C.  533,  8  S.  E.  8. 

2:212 
Description  of  land. 
See  also  Principal  and  Agent,  27. 

205.  A  memorandum  which  does  not  show 
that  the  property  was  located  in  any  s^ate, 

•ounty,  or  city,  but  is  dated  sinjply  at 
'Leavenworth,"  and  describes  the  property 
as  being  on  Delaware  street  of  some  "'•ity 
proper,"  giving  street  numbers,  but  without 
stating  whether  the  property  is  real  or  per- 
sonal, or  mentioning  the  name  of  the  owner, 
is  insufficient,  under  the  statute  of  frauds, 
us  a  contract  for  the  sale  of  realty.  Ross  v. 
Allen,  45  Kan.  231,  25  Pac.  570,  10:  835 

206.  A  description  of  lanJ  as  the  portion 
of  a  specified  farm  east  of  the  right  of  way 
of  a  certain  railroad,  which  runs  in  a  north- 
erly and  southerly  direction,  is  sufficient  to 
identify  the  land,  where  the  range,  town- 
ship, and  section  on  which  the  land  is  situ- 
ate are  given.  Hayes  v.  O'Brien,  149  111. 
403,  37  N.  E.  73,  23:  555 

207.  The  description  of  property  in  an 
agreement  for  its  sale  as  "one  one-and-one- 
half-story  frame  dwelling  houpe  with  larn 
and  outbuildings  and  all  land  now  being 
used  in  connection  therewith,  being  about  7 
acres  more  or  less,"  situated  on  a  certain 
street  in  a  certain  town,  is  sufficient  to  war- 
rant a  decree  for  specific  performance,  where 
the  bill  particularly  describes  the  property, 
and  alleges  that  it  is  the  same  referred  to  in 
the  agreement,  which  is  not  denied  by  the 
answer,  and  the  evidence  in  regard  to  the 
vendee's  occupation  and  tender  of  purchase 
money  refers  to  the  premises  described  in 
the  agreement.  Sanders  v.  Bryer,  152  Mass. 
141,  25  N.  E.  86,  9:  255 

208.  A  contract  to  purchase  of  a  man  "his 
place"  in  a  certain  town,  "containing  15 
acres  more  or  less,"  sufficiently  describes  the 
property,  where  he  resides  on  the  premises 
find  owns  no  other  real  estate  in  that  town. 
Hodges  v.  Rowing,  58  Conn.  12,  18  Atl.  979, 

7:  87 

209.  The  description  of  the  property  is 
sufficient  to  uphold  the  contract,  where  the 
agreement  is  to  convey  one  third  of  all  gran- 
tor's estate,  real,  personal,  or  mixed,  of 
whatever  kind  or  nature,  belonging  to  him  in 
his  own  right,  which  he  acquired  under  the 
will  of  his  mother,  as  well  as  all  the  other 
estate  otherwise  acquired  and  now  owned 
bv  him.  Moayon  v.  Moayon,  114  Ky.  855, 
72  S.  W.  33,  60:  415 

b.  Execution. 

For  Editorial  Notes,  see  infra^  VIII.  §  11. 

Acceptance  as. 

210.  The  acceptance  by  the  master  of  a 
written  contract  of  employment  signed  by 
the  servant  is  equivalent  to  its  formal  exe- 
cution bv  the  former.  Vogel  v.  Pekoe,  157 
111.  3.30.  42  N.  E.  386,  30:  491 
Agent's  deed. 

211.  The  deed  of  an  agent  executed  in  the 


678 


CONTRACTS.  I.  e,  5. 


presence  and  under  the  personal  direction 
of  his  principal  is  not  within  a  statute  of 
frauds  "providing  that  an  agent  may  sub- 
scribe a  deed  when  authorized  by  writing. 
Bigler  v.  Baker,  40  Neb.  325,  58  N.  W.  102G, 

24:  255 
Signature. 
See  also  supra,  200;  infra,  227-229. 

212.  A  contract  founded  on  a  valuable  con- 
sideration, by  which  a  landowner  agrees  to 
sell  his  land  to  a  third  person  for  a  specified 
amount  within  a  certain  time,  at  the  latter's 
option,  is  binding  on  the  landowner  although 
signed  by  him  alone;  and  if  the  offer  is  ac- 
cepted within  the  time  specified,  the  contract 
will  be  specifically  enforced  against  him  or 
his  grantees  with  notice.  Ross  v.  Parks,  93 
Ala.  153,  8  So.  368,  '  11:  148 

213.  The  signature  of  the  vendor  to  a  con- 
tract for  the  sale  of  real  estate,  which  is 
otherwise  sufficient,  is  not  necessary  in  or- 
der to  enable  him  to  enforce  it  against  the 
vendee.  Hodges  v.  Kowing,  58  Conn.  12,  18 
Atl.  979,  7:  87 

214.  The  indorsement  by  the  principal  of 
a  check  given  in  part  payment  of  the  pur- 
chase price  of  land  is  not  a  sufficient  sub- 
scription of  the  contract  to  make  it  binding 
on  him,  where  it  was  made  by  an  agent  not 
having  sufficient  authority  to  bind  the  prin- 
cipal, although  the  check  was  attached  to 
the  contract.  Thompson  v.  New  South  Coal 
Co.  135  Ala.  630,  34  So.  31,  62:  551 

215.  A  signed  letter  stating  that  the  writ- 
er remembers  "of  exhibiting  a  statement" 
of  another's  resources  is  not  sufficient  to 
make  the  letter  a  signed  statement  of  them, 
within  the  meaning  of  a  statute  providing' 
that  no  action  shall  be  brought  on  such  a 
statement  unless  it  is  signed,  where  the 
statement  on  which  the  plaintiff  relies  was 
exhibited  by  a  third  person,  and  there  is 
nothing  in  the  letter  to  identify  the  one  to 
which  it  refei-s.  and  by  the  terms  of  the  let- 
ter the  exhibited  statement  did  not  contain 
the  whole  substance  of  the  communication 
upon  the  subject.  Third  Nat.  Bank  v.  Steel, 
129  Mich.  434,  88  N.  W.  1050,  64:  119 

216.  Signing  one's  name  in  blank  iipon  the 
back  of  a  promissory  note  to  which  he  is  not 
a  party,  pursuant  to  an  oral  agreement  to 
guarantee  its  payment,  although  insufficient 
of  itself,  will  justify  the  holder  to  write  a 
contract  of  guaranty  over  the  signature,  and 
thus  satisfy  the  statute  of  frauds.  Peterson 
V.  Russell,  62  Minn.  220,  64  X.  W.  .i55. 

29:  612 

217.  A  lease  for  more  than  a  year,  void 
under  How.  OTich.)  Stat,  ij  6170,  because 
signed  by  a  )  •>n  other  than  the  owner, 
not  thereunto  authorized  by  the  owner  in 
writing  is  not  aided  by  the  fart  that  a  dupli- 
cate lease  retained  by  the  owner  was  signed 
by  him.  but  never  delivered  to  the  lessee,  or 
known  of  bv  him.  Chesebrough  v.  Pingree, 
72  :Mich.  438,  40  N.  W.  747.  1 :  329 

218.  An  instrument  written  aiid  signed  by 
one  person  for  another,  in  his  presence  and 
by  his  direction.,  is  sufficient  to  bind  him, 
under  the  statute  of  frauds,  without  any 
written  authoritv  to  sign  for  him.  Morton 
V.  Murray.  176  Til.  54,  51  X.  E.  767,       43:  .529 


219.  A  signature  to  an  agreement  by  a 
president  of  a  corporation  who  is  also  the 
general  manager  may  be  sufficient  when  he 
signs  as  president  without  signing  also  as 
managei-.  Wells,  F.  &  Co.  v.  Enright,  127 
Cal.  669,  60  Pac.  439,  49:  647 

c.  Memorandum. 

See  also  supra,  197,  201-205;  infra,  281. 
For  Editorial  Notes,  see  infra,  VUI.  §§  15, 
20. 

220.  The  memorandum  of  a  contract  for 
the  sale  of  land  must  show,  without  the  aid 
of  parol  proof,  the  essentials  of  the  agree- 
ment, including  the  subject-matter  of  the 
sale,  the  terms,  and  the  names  or  descrip- 
tions of  the  parties.     Mentz  v.  Newwitter, 

i  122  N.  Y.  491,  25  X.  E.  1044,  11:  97 

221.  The  vote  of  the  directors  of  a  corpor- 
:  ation  assuming  payment  of  the  debt  of  a 
i  third  person,  duly  recorded,  is  a  sufficient 
i  memorandum  in  writing,  and  the  signature 
j  of  the  recording  officer  in  attestation  of  the 
I  minutes  a  sufficient  signing  of  the  party 
|to   be ■  charged,   to   satisfy   the    statute    of 

frauds.     Lamkin  v.  Baldwin  &  L.  Mfg.  Co. 
I  72  Conn.  57,  43  Atl.  593,  1042,  44:  786 

222.  A  memorandum  signed  by  a  real-es- 
!  tate  broker,  which  states  the  price  to  be 
I  cash,  but  refers  to  additional  terms  of  pay- 
!  ment,  not  evidenced  by  writing,  but  left  in 
i  parol,  is  insufficient  to  authenticate  a  con- 
tract for  the  sale  of  land.    Lester  v.  Heidt, 

I  86  Ga.  226,  12  S.  E.  214,  10:  108 

'  Description  of  parties. 

I  223.  An  auctioneer's  memorandum  of  the 
I  sale  of  lands,  which  fails  to  state  the  name 
I  of  the  vendor  or  give  any  description  by 
whieli  he  or  she  can  be  identified,  is  fatally 
defective.  Mentz  v.  Newwitter,  122  N.  Y. 
;  491,  25  N.  E.  1044,  11:97 

224.  A  memorandiim  of  sale  of  land  which 
neither  names  nor  describes  the  vendor,  al- 
though naming  certain  persons  as  auction- 
eers, is  insufficient  imder  the  statute  of 
frauds.  McGovern  v.  Hern,  153  Mass.  308. 
26  N.  E.  861,  10:  815 

225.  A  memorandum  of  a  contract  for  the 
sale  of  lands  is  fatallj-  defective  where  it 
does  not  name  or  describe  the  purchaser. 
Lewis  v.  Wood.  153  Ma^«.  321.  26  N.  E.  862. 

11:  143 
Deed  in  escrow. 

226.  A  deed  placed  in  escrow,  but  not  de- 
livered, cannot  be  regarded  as  a  sufficient 
memorandum  of  a  parol  agreement  for  tne 
land  to  satisfy  the  statute  of  frauds  where 
it  does  not  recite  the  terms  of  the  contract. 
Kopp  V.  Reiter.  146  111.  437,  34  N.  E.  942, 

22:  273 
Signature. 
Parol   Evidence    of  -Signing    as    Agent    for 

Purchaser,  see  Evidence,  1236. 
See  also  supra.  200,  212,  219,  221. 
For  Editorial  Notes,  see  infra,  Vlll.   §   15. 

227.  A  memorandum  of  the  sale  of  land, 
not  sii; lud  by  the  vendor  or  by  anyone 
for  him.  is  fatallv  defective.  Ross  v.  Al- 
len. 45  Kan.  231,  25  Pac.  .570.  10:  835 

228.  A  memorandum  of  an  order  for  the 


CONTRACTS,   I.  e.  fi. 


679 


purchase  of  ^oods,  signed  by  the  agent  of 
the  buyer,  with  a  written  acceptance  signed 
by  the*  agent  of  the  seller,  may  constitute 
a  valid  contract  within  the  statute  of 
frauds.  Gerli  v.  Poidebard  Silk  Mfg.  Co. 
(N.  J.  Err.  &  App.)  57  N.  J.  L.  432.  31  Atl. 
401,  30:  61 

229.  A  contract  signed  in  the  name  of 
a  firm  is  not  such  a  memorandum  under 
the  statute  of  frauds  as  will  make  the  oral 
acceptance  thereof  by  a  subsequent  mem- 
ber of  the  Ihni  binding  upon  him,  where 
the  contract  comes  within  the  statute. 
Hughep  V.  Cross.  166  Mass.  61.  43  N.  E. 
1031,  32:620 

6.  Effect  of  Fraud  or  Part  Performance. 

o.  In  General. 

For  Editorial  Notes,  see  infra.  VIJI.  §§  14, 
16. 

230.  In  a  suit  by  one  partner  for  ai;  ac- 
counting of  the  profits  realized  under  a 
parol  agreement,  after  the  same  has  been 
executed,  a  partner  who  has  received  tlie 
entire  profits  is  estopped  from  claiming 
that  the  agreement  is  void  under  the  stat- 
ute of  frauds.  Flower  v.  BarnekoflF,  20  Or. 
132,  25  Pac.  370,  11:  149 

231.  An  oral  agreement  between  husband 
and  wife  for  the  disposal  of  their  prop- 
erty by  will  in  a  certain  manner,  the  mak- 
ing'of  one  will  being  the  inducement  to  the 
making  of  the  other  is — after  such  wills 
have  been  made,  and  the  wife,  after  the 
husband's  death,  has  had  and  used  personal 
property  given  her  by  his  will — valid  by 
reason  of  part  performance,  and  will  be 
sustained  to  prevent  her  from  disposing  of 
real  estate  which  the  husband  Avilled  to 
her,  otherwise  than  in  accordance  with  her 
will.  Carmichael  v.  Carmichael,  72  Mich. 
76,  40  N.  W.  173,  1 :  596 

232.  After  her  death,  leaving  it  unper- 
formed, such  a  contract  may  be  enforced 
against  her  representatives.  Gilpatrick  v. 
Glidden.  81  Me.  137,  16  Atl.  464,  2:  662 
Sales  of  chattels. 

For  Editorial  Notes,  see  infra,   VIII.   §  20. 

233.  A  delivery  and  acceptance  sufficient 
to  satisfy  the  statute  of  frauds  is  not  ef- 
fected by  a  seller  of  tomatoes  in  cans,  giv- 
ing the  buyer  two  cans  as  samples,  which 
the  latter  takes  away  with  him,  where 
they  are  not  included  in  the  bulk  of  the 
sale.  Richardson  v.  Smith,  101  Md.  15,  60 
Atl.  612,  70:  321 

234.  A  delivery  and  acceptance  of  sample 
cans  of  tomatoes  cannot  be  held  to  be 
symbolic  of  the  bulk  which  is  the  subject 
of  the  contract,  so  as  to  satisfy  the  stat- 
ute of  frauds,  where  the  seller  expressly 
insists  that  the  terms  are  f.  o.  b.  at  point 
of  shipment  with  sight  draft,  bill  of  lading 
attached.  Id. 
Marriage. 

See  also  infra,  251. 

235.  Marriage  is  not  such  part  perform- 
ance of  an  oral  promise  as  to  avoid  the 
statute  of  frauds.  Peek  v.  Peek,  77  Cal. 
106,  19  Pac.  227,  1:  185 


236.  Marriage  constitutes  such  part  per- 
forniancp  by  a  woman  of  a  contract  in  con- 
sideration of  marriage  as  to  prevent  the 
operation  of  the  statute  of  frauds  in  re- 
spect to  the  contract.  Nowack  v.  Berger, 
133  Mo.  24,  34  S.  W.  489,  31:810 
Adoption;   performing  services. 

See   also   infra,   253-256. 

237.  Performance  of  services  under  a 
parol  agreement  which  is  within  the  stat- 
ute of  frauds  is  not  sufficient  to  take  the 
agreement  out  of  the  statute.  Ellis  v. 
Carv,   74   Wis.    176,   42   N.   W.    252,    352, 

4:  55 

238.  Performance,  on  the  part  of  a  girl, 
of  a  parol  contract  to  live  with  a  man  and 
his  wife  during  their  lives  in  consideration 
of  their  agreement  to  leave  her  all  their 
property,  will  not  take  the  agreement  out 
of  the  statute  of  frauds.  Austin  v.  Davis, 
128  Ind.  472,  26  N.  E.  890,  12:  120 

239.  An  oral  contract  to  give  a  niece  all 
one's  property  at  death  if  she  will  come 
to  live  with  him  and  take  care  of  him 
can  be  enforced  in  equity  after  she  has 
fulfilled  her  contract.  Owens  v.  McNally, 
113  Cal.  444,  45  Pac.  710,  33:369 

240.  A  contract  to  leave  property  to  an 
adopted  child  as  an  heir  is  taken  out  of 
t^e  statute  of  frauds  by  its  complete  per- 
formance on  the  part  of  the  child.  Wright 
V.   Wright,   99   Mich.    170,   58  N.   W.   54. 

23:  196 

241.  An  oral  contract  for  the  adoption  of 
a  child  as  an  heir  may  be  recognized  and 
enforced  after  performance  of  the  considera- 
tion. Nowack  V.  Berger,  133  Mo.  24,  34 
S.  W.  489,  31 :  810 

242.  An  oral  contract  to  adopt  a  child 
and  make  her  an  heir  is  made  valid  by 
part  performance,  where  it  has  been  car- 
ried out  by  assumption  and  continuance 
of  the  parental  relation  for  ten  years  and 
until  the  death  of  the  adopting  parents. 
Kofka  V.  Rosicky,  41  Neb.  328,  59  N.  W. 
788,  25:  207 

243.  The  surrender  of  a  child  by  his 
mother  to  the  custody  and  control  of  a  man 
whom  she  marries,  in  pursuance  of  an  oral 
contract  by  which,  in  consideration  of  the 
marriage  and  of  the  services  of  the  child,  the 
husband  agrees  to  give  the  child  a  share 
of  his  estate  equal  to  that  which  an  heir 
would  inherit,  constitutes  an  independent, 
additional,  and  valuable  consideration 
which  will  amount  to  part  performance  of 
the  contract,  and  take  the  case  out  of  the 
operation  of  Mo.  Rev.  Stat.  1889,  §  5186, 
prohibiting  an  action  on  a  contract  in  con- 
sideration of  marriage  unless  it  is  in  writ- 
ing. Nowack  V.  Berger,  133  Mo.  24,  34  S. 
W.  489,  31:  810 

b.  Contracts  Relating  to  Real  Property. 

Specific  Enforcement  of  Contract,  see  Spe- 
cific Performance,  I.  b. 
See  also  supra,  169. 
For  Editorial  Notes,  see  infra,  VIII.  §  19. 

244.  A  consideration  previously  received 
may  constitute  a  sufficient  performance  of 
an  oral  promise  to  convey  land  to  take  it 


680 


CONTRACTS,  I.  e,  6. 


out  of  the  statute  of  frauds.    Daily  v.  Min- 
nick,  117  Iowa,  563,  91  N.  W.  913,       60:  840 

245.  Mere  acceptance  of  a  portion  of  the 
purchase  money  is  not  sufficient  to  take 
a  contract  for  the  sale  of  land  out  of  the 
statute  of  frauds,  where  the  statute  re- 
quires, not  only  the  payment  of  the  pur- 
chase money,  but  the  placing  of  the  pur- 
chaser in  possession.  Thompson  v.  New 
South  Coal  Co.   135  Ala.   630,  34  So.   31, 

62:  551 

246.  The  purchase  by  promisor  of  a  tract 
of  land,  and  his  declaration  that  it  is  the 
land  he  intends  to  convey  in  fulfilment  of 
his  promise,  are  sufficient  to  render  cer- 
tain his  promise  to  convey  to  an  infant 
a  certain  quantity  of  land  in  case  he  is 
named  for  him.  Daily  v.  Minnick,  117 
Iowa,  563,  91  N.  W.  913,  60:  840 

247.  Although  a  parol  agreement  to  ac- 
quire the  interests  of  all  the. tenants  in 
common  of  real  estate,  convert  the  same 
into  money,  and  pay  over  to  each  his 
pro  rata  share  of  the  proceeds,  is  not  en- 
forceable under  the  statute  of  frauds,  yet, 
if  the  agreement  is  carried  out  so  far  that 
the  title  is  acquired  and  the  property  con- 
verted into  money,  a  trust  will  arise  to  pay 
over  the  proceeds.  The  trust,  however,  is 
not  enforceable  at  law,  unless  the  trustee 
has  affirmatively  recognized  his  duty  to 
make  the  pavment.  Collar  v.  Collar,  86 
Mich.  507,  49  K  W.  551,  13:  621 

248.  Part  performance  of  a  parol  agree- 
ment to  convey  to  a  cotenant  an  interest 
in  lands  is  not  made  out  by  the  fact  that 
he  had  completed  similar  oral  agreements 
with  other  cotenants  by  paying  for  their 
shares  and  receiving  conveyances,  where  the 
agreements  with  the  cotenants  were  sev- 
eral. Graves  v.  Goldthwait,  153  Mass.  268, 
26  N.  E.  860,  10:  763 

249.  The  construction  of  a  ditch  by  one 
over  another's  land  in  accordance  with  a 
parol  agreement  between  them  that  the  lat- 
ter will  give  the  right  of  way  if  the  former 
will  construct  the  ditch,  which,  when  com- 
pleted, is  to  be  used  by  both  in  irrigat- 
ing their  respective  tracts  of  land,  will  give 
the  former  a  vested  right  of  way  by  pur- 
chase for  the  ditch  over  the  latter's  land, 
which  will  be  protected  by  injunction. 
Flickinger  v.  Shaw,  87  Cal.  'l26,  25  Pac. 
268,  11:  134 

250.  An  agreement  between  brothers  and 
sisters  to  whom  land  has  descended  in  com- 
mon, that  the  same  shall  be  held  by  them 
as  joint  tenants  and  pass  to  the  survivor 
by  devise  or  descent,  and  at  the  death  of 
the  last  survivor  shall  pass  by  devise  or 
descent  to  the  child  of  the  only  married  one 
of  them,  is  sufficiently  performed  to  be 
taken  out  of  the  operation  of  the  statute 
of  frauds  by  its  substantial  keeping  by 
all  the  parties  thereto  until  the  land  has 
become  vested  in  the  survivor,  who  has 
received  all  the  fruits  thereof  which  are 
to  come  to  her,  and  to  make  it  enforceable 
by  such  child.  Murphy  v.  Whitney,  140 
X.  y.  541.  35  N.  E.  930.  24:  123 


Marriage. 

See  also  supra,  235,  236. 

251.  ^Vhere  defendant  was  induced  to 
marry  plaintiff's  father  upon  his  oral  prom- 
ise to  convey  land  to  her,  which  he  never 
intended  to  do,  but  conveyed  to  plaintiff 
without  consideration  on  the  morning  of 
the  marriage  with  defendant,  whom  he 
shortly  afterwards  deserted,  his  fraud  takes 
the  case  out  of  the  operation  of  the  stat- 
ute of  frauds.  Peek  v.  Ppek,  77  Cal.  106, 
19  Pac.  227,  1:  185 
Naming  child  for  grantor. 

252.  Naming  a  child  for  grantor  is  suf- 
ficient performance  of  consideration  to  take 
an  oral  agreement  to  convey  land  to  him 
in  consideration  thereof  out  of  the  stat- 
ute of  frauds,  where  payment  of  the  pur- 
chase money,  or  part  thereof,  is  allowed  to 
do  so.  Daily  v.  Minnick,  117  Iowa,  563,  91 
N.  W.  913,  60:  840 
Adoption;  perfonning  services. 

See   also    supra,    237-243. 

253.  Full  performance  of  the  considera- 
tion of  a  contract  for  real  estate,  by  car- 
ing for  and  supporting  the  owner"  imtil 
death  and  then  providing  for  her  burial,  is 
sufficient  to  take  the  contract  out  of  the 
statute  of  frauds,  even  as  to  a  piece  of 
real  estate  included  in  the  property  of 
which  actual  possession  has  not  been  taken 
under  the  contract,  where  there  is  no  evi- 
dence that  anyone  else  had  or  claimed 
possession  of  it,  and  there  is  evidence  that 
the  owner  had  surrendered  entire  posses- 
sion of  the  property,  including  herself, 
to  the  other  party  to  the  contract.  Bryson 
V.  McShane,  48  W.  Va.  126,  35  S.  E.  848, 

49:  527 

254.  An  oral  agreement  to  give  property 
by  will  to  children  who  become  members 
of  the  household  of  tae  promisor  and  give 
him  their  services,  and  also  sell  real  estate 
at  a  sacrifice  and  pay  over  the  proceeds 
to  him,  in  consideration  of  his  promise,  is 
taken  out  of  the  statute  of  frauds  by  the 
fact  that  the  value  of  their  society  and 
services  cannot  be  measured  in  money,  and 
they  cannot  be  restored  to  the  former  posi- 
tion with  respect  to  their  property.  Svan- 
burg  V.  Fosseen,  75  Minn.  350,  78  N.  W.  4, 

43:  427 

255.  Becoming  a  member  of  a  man's  fam- 
ily, and  taking  his  name,  and  living  with 
him  as  his  child  until  his  death,  under  a 
parol  promise  by  him  to  leave  all  his  prop- 
erty, real,  personal,  and  mixed,  to  such 
child,  is  not  such  a  part  performance  of 
the  contract  as  to  make  it  amount  to  a 
fraud  to  refuse  performance  of  the  promise 
on  the  ground  that  it  is  within  the  stat- 
ute Of  frauds.  Pond  v.  Sheean,  132  111.  312, 
23  N.  E.  1013,  8:  414 

256.  Performance  of  services  such  as  su- 
perintending repairs  on  a  building,  pro- 
curing tenants,  and  collecting  rents  is  not 
sufficient  to  entitle  one  to  specific  per- 
formance of  an  oral  promise  in  considera- 
tion of  such  services  to  convey  an  inter- 
est in  the  land  for  which  the  property 
shall  bo  exchanged,  the  contract  being  void 


CONTRACTS,  II.  a. 


681 


under  the  statute  of  frauds.  Russell  v. 
Briggs,  165  N.  Y.  500,  59  N.  E.  303,  53:  556 
Promise  to  reconvey. 

257.  The  mere  breach  of  an  oral  agree- 
ment to  reconvey  lands  conveyed  is  not  suf- 
ficient standing  alone,  to  establish  that 
fraud  in  procuring  the  title  which  is  re- 
quired to  render  the  grantee  a  trustee  ex 
maleflcio.  Brock  v.  Brock,  90  Ala.  86,  8 
So.   11,  ,  9:   287 

258.  A  case  in  which  it  is  claimed  that  a 
deed  reciting  a  valuable  consideration  was 
given  actually  without  one  and  merely  in 
trust  is  not  taken  out  of  the  statute  of 
frauds  by  proof  of  the  mere  failure  to  com- 
ply with  an  alleged  parol  promise  to  re- 
convey, as  such  failure  is  not  evidence  of 
fraudulent  intent  in  the  grantee.  Nor  can 
the  case  be  taken  out  of  the  statute  by 
acts  of  the  grantee  under  the  depd.  Feeney 
v.    Howard,    79    Cal.    525,    21    Pac.    984, 

4:  826 

Possession  and  improvement. 

Evidence  as  to  Improvements,  see  Evidence, 
2083. 

Term  of  Tenant  Entering  under  Oral 
Lease,  see  Landlord  and  Tenant,  38,  39, 
41-43. 

Cdhclusiveness  of  Parol  Contract  as  to 
Amount  of  Rent,  see  Landlord  and  Ten- 
ant, 193. 

See  also  Landlord  and  Tenant,  38. 

For  Editorial  Notes,  see  infra,  VIII.  §  19. 

259.  Joint  residence  of  husband  and  wife, 
after  marriage,  on  land  which  he  orally 
promised  to  convey  to  her  in  consideration 
of  marriage,  does  not  avoid  the  statute  of 
frauds.  Peck  v.  Peck,  77  Cal.  106,  19  Pac. 
227,  1:  185 

260.  A  purchaser's  agreement  to  take  pos- 
session of  land  as  part  of  the  consideration 
for  a  promised  conveyance  does  not  destroy 
the  effect  of  possession  as  a  part  perform- 
ance of  an  oral  contract  taking  the  case 
out  of  the  statute  of  frauds.  Puterbaugh 
V.  Puterbaugh,  131  Ind.  288,  30  N.  E.  519, 

15:  341 

261.  Possession  of  one  who  entered  as  a 
tenaftt  must  be  clearly  shown  to  result  from 
the  contract,  and  not  from  the  lease,  in  or- 
der to  take  a  verbal  contract  of  purchase 
out  of  the  statute  of  frauds.  Bigler  v. 
Baker,  40  Neb.  325,  58  N.  W.  1026,      24:  255 

262.  The  parol  assignment  of  a  lease 
which  at  the  time  has  more  than  a  year 
to  run,  followed  by  the  placing  of  the  as- 
signee in  possession  and  his  recognition  by 
the  lessor,  is  not  sufficient  to  take  the  case 
out  of  the  statute  of  frauds,  so  as  to  en- 
able the  lessor  to  maintain  an  action 
against  the  assignee  for  rent  which  -becomes 
due  after  he  has  jabandoned  the  premises. 
Chicago  Attachment  Co.  v.  Davis  Sewing 
Mach.  Co.  142  111.  171,  31  N.  E.  438,  15:  754 

263.  Placing  the  purchaser  in  full  pos- 
session of  timljer  under  an  oral  purchase, 
and  his  commencing  performance  of  the  con- 
tract, will  prevent  the  seller  from  repudiat- 
ing the  contract  on  the  ground  that  it  is 
void  under  §  17  of  the  statute  of  frauds. 
Leonard  v.  Medford,  85  Mo,  660,  37  Atl. 
365,  37:449 


264.  Mere  retention  by  a  judgment  debt- 
or of  the  possession  of  land  which  has  been 
sold  under  an  execution  against  him,  in 
accordance  with  a  parol  contract  by  which 
the  execution  purchaser  agreed  to  reconvey 
the  land  upon  being  repaid  the  amount  of 
his  bid,  is  not  such  part  performance  as  to 
take  the  contract  out  of  the  statute  of 
frauds.  Emmel  v.  Hayes,  i02  Mo.  186,  14 
S.  W.  209,  ^  11:  323 

265.  The  making  of  such  improvements 
as  occur  in  the  ordinary  course  of  hus- 
bandry will  not  take  a  contract  for  land 
out  of  the  statute  of  frauds,  where  the  pur- 
chaser was  already  in  possession.  Id. 

266.  Lasting  and  valuable  improvements 
upon  premises  made  by  one  in  possession 
under  a  parol  agreement  of  purchase,  is  a 
sufficient  part  performance,  notwithstand- 
ing default  of  payment,  to  defeat  an  ac- 
tion of  ejectment.  Bigler  v.  Baker,  40  Neb. 
325,  58  N.  W.  1026,  24:  255 

267.  Where  parties  to  a  written  contract 
for  the  exchange  of  lands  have  exchanged 
possession,  but  have  not  executed  deeds,  a 
parol  rescissiion  of  the  contract,  followed 
by  part  performance  by  restoration  of  pos- 
session by  one  of  the  parties,  will  be  en- 
forced against  the  other.  Boggs  v.  Bod- 
kin, 32  W.  Va.  566,  9  S.  E.  891,  5:  245 


n.  Construction. 
a.  In  General. 

Strict  Construction  of  Contract  Limiting 
Carrier's  Liability,  see  Carriers,  868. 

Exemptions  in  Carrier's  Favor,  see  Car- 
riers,  936,   937. 

By  Court,  where  Relief  Sought  is  Be- 
yond its  Jurisdiction,  see  Courts,  16. 

Parol  Evidence  as  to  Meaning  of  Parties 
to  Contract,  see  Evidence,  VI.  e. 

Of  Power  of  Attorney,  see  Principal  and 
Agent,  25. 

Question  for  Court  or  Jury  as  to,  see  Trial, 
II.  c,  6. 

Construction  of  Will,  see  Wills,  TIL 

For  Editorial  Notes,  see  infra,  Vlll.  §§  21- 
24. 

268.  The  statutes  and  the  settled  law 
of  the  land  at  the  time  a  contract  is  made 
become  a  part  of  it,  and  must  be  read  in- 
to it.  Deweese  v.  Smith,  45  C.  C.  A.  408, 
106  Fed.  438,  66:  971 

269.  A  contract  is  to  be  construed  in  the 
light  and  with  the  knowledge  of  surround- 
ing circumstances.  Remv  v.  Olds  (Cal.)  No 
Off.  Rep.  34  Pac.  216,     '  21:  645 

270.  A  jury  is  not  bound  to  adopt  the 
construction  of  a  contract  which  will  ren- 
der it  legal  if  it  is  equally  capable  of  one 
which  will  render  it  illegal  if  other  evidence 
in  the  case  tends  to  show  illegality.  Unit- 
ed States  Fidelitv  &  G.  Co.  v.  Charles,  131 
Ala.   658.   31    So.' 558,  57:  212 

271.  Commercial  contracts  must  be  in- 
terpreted in  ine  light  of  commercial  usages, 
and  their  performance  must  be  such  as  busi^ 


682 


CONTRACTS,  II,  a. 


ness  men  would  naturally  contemplate. 
Kauffman  v.  Raeder,  47  C/C.  A.  278,  108 
Fed.  171,  54:247 

272.  Whatever  may  fairly  be  implied 
from  the  terms  or  nature  of  an  instrument 
is,  in  judgment  of  law,  contained  in  it. 
Lawler  v.  Murphv,  58  Conn.  294,  20  Atl. 
457,  '  8:  113 

273.  Whatever  is  necessary  to  be  done 
in  order  to  accomplish  work  specially  con- 
tracted to  be  performed  is  parcel  of  the  con- 
tract, though  not  specified.  Id. 

274.  If  it  appears  that  au  ambiguoiis 
term  in  a  contract  has  an  established  mean- 
ing among  those  engaged  in  the  business 
to  which  the  contract  has  reference,  and 
unless  it  is  given  that  meaning  it  is  indefi- 
nite and  equivocal,  it  should  be  treated,  in 
interpreting  the  contract,  as  used  according 
to  that  understanding.  Metropolitan  Ex- 
hibition Co.  V.  Ewing,  42  Fed.  198,       7:  381 

275.  The  words  "or"  and  "and"  in  a  con- 
tract will  be  changed  to  read  "and"  and 
"or,"  where  it  is  plain  they  were  so  intend- 
ed. Bettman  v.  Harness.  42  W.  Va.  433. 
26  S.  E.  271,  36:  566 

276.  A  construction  most  beneficial  to  the 
promisee  will  be  adopted  if  other  things 
are  equal,  when  the  terms  of  an  instru- 
ment and  the  relation  of  the  parties  leave 
it  doubtful  whether  words  are  used  in  an 
enlarged  or  a  restricted  sense.  Webster  v. 
Dwelling  House  Ins.  Co.  53  Ohio  St.  558, 
42  N.  E.  546,  30:  719 

277.  Public  contracts  should  be  con- 
strued liberally  in  favor  of  the  public. 
Muncie  Natural  Gas  Co.  v.  Muncie,  160  Ind. 
97,  66  N.  E.  436,  60:  822 
Punctuation. 

278.  Punctuation  marks  do  not  control 
the  words  of  a  contract,  but  are  controlled 
by  the  words.  Holmes  v.  Phenix  Ins.  Co.  39 
C.  C.  A.  45,  98  Fed.  240,  47:  308 
Construing  as  a  whole. 

Construing    Mortgage    with    Note    Secured, 

see  Bills  and  Notes,  46. 
For  Editorial  Notes,  see  infra,  VIII.  §  21. 

279.  The  proper  construction  of  a  con- 
tract is  not  dependent  on  any  name  given 
to  the  instrument  by  the  parties,  or  on  any 
one  provision,  but  upon  the  entire  body  of 
the  contract  and  the  legal  effect  of  it  as  a 
whole.  Arbuckle  Bros.  v.  Kirkpatrick.  98 
Tenn.  221,  39  S.  W.  3,  36:  285 

280.  The  meaning  of  a  contract  is  to  be- 
gathered  from  consideration  of  all  its 
parts,  and  no  provision  Is  to  be  wholly  dis- 
regarded as  inconsistent  with  other  pro- 
visions unless  no  other  reasonable  constnic- 
tion  is  possible.  Germania  F.  Ins.  Co.  v. 
Roost,  55  Ohio   St.  581.   45   N.   E.   1097. 

36:  236 

281.  A  telegram  by  an  agent  to  his  prin- 
cipal, announcing  a  purchase  of  hops,  and 
asking  a  confirmation  thereof,  should  be 
read  in  connection  with  the  answer  thereto, 
in  determining  whether  the  telegrams  con- 
stitute a  sufficient  memorandum  of  the 
contract  of  purchase  to  satisfy  the  stat- 
ute of  frauds.  Brewer  v.  Horst-Lachmund 
Co.  127  Cal.  643,  60  Pac  418,  50:  240 


282.  In  construing  a  contract,  each  of  its 
provisions  must  be  considered  in  connec- 
tion with  the  others,  and,  if  possible,  ef- 
fect must  be  given  to  all.  McKav  v.  Bar- 
nett,  21  Utah,  239,  60  Pac.  1100,   '    50:  371 

283.  If  two  writings  of  different  dates, 
made  between  the  same  parties  and  relat- 
ing to  the  same  subject-matter,  are  not 
different  from  each  other  in  legal  effect, 
though  different  in  terms,  and  the  later 
in  date  is,  among  other  things,  a  receipt 
for  a  sum  of  money  mentioned  in  the  other 
and  to  be  paid,  and  therefore  a  voucher, 
passed  between  the  parties  in  performance 
of  the  first  agreement,  such  first  agree- 
ment is  not  discharged  by  the  execution 
of  the  latter;  and  resort  may  be  had  to 
both  instruments  in  ascertaining  the  rights 
and  liabilities  of  the  parties.  Rhoades  v. 
Chesapeake  &  0.  R.  Co.  49  W.  Va.  494,  39 
S.  E.  209,  55:  170 
Intention  of  parties;  construction  given  by 

them. 
See  also  infra,  351. 

284.  The  intention  of  parties  cannot  be 
imported  into  a  contract,  where  its  terms 
are  plain  and  unambiguous,  and  they  •  do 
not  express  it.  Cold  Blast  Transp.  Co.  v. 
Kansas  City  Bolt  &  Nut  Co.  52  C.  C.  A. 
25,   114  Fed.  77,  57:  696 

285.  The  intention  of  the  parties  to  a 
contract,  if  manifest,  will  control  regard- 
less of  careless  recitals  or  inapt  expressions. 
Rockefeller  v.  Merritt.  40  U.  S.  App.  666. 
76  Fed.  909,  22  C.  C.  A.  608,  35:  633 

286.  A  court  of  law  should  read  a  writ- 
ten contract  according  to  the  obvious  in- 
tention of  the  parties,  in  spite  of  clerical 
errors  or  omissions  which  can  be  corrected 
by  perusing  the  whole  instrument.  Wallis 
Iron  Works  v.  jNIonmouth  Park  Asso.  (N. 
J.  Err.  &  App.)  55  N.  J.  L.  132.  26  Atl.  140, 

19:  456 

287.  Courts  of  equity,  as  well  as  courts 
of  law,  must  construe  written  contracts 
according  to  the  intention  of  the  parties 
as  expressed  by  their  terms,  and  where 
there  is  doubt  or  ambiguity  as  to  the  in- 
tention of  the  parties  they  may  take  in- 
to consideration  the  surrounding  facts  and 
circumstances,  but  cannot  make  contracts 
for  the  parties.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Chicago  &  W.  I.  R.  Co.  162  111.  632, 
44  N.  E.  823,  35:  167 

288.  The  situation  of  the  parties  when 
a  contract  is  made,  its  subject-matter,  and 
the  purpose  of  its  execution,  are  always 
material  to  determine  the  intention  of  the 
parties  and  the  meaning  of  the  terms  they 
used,  and  when  these  are- ascertained  they 
must  prevail  over  the  dry  words  of  the 
agreement.  Kauffman  v.  Raeder,  47  C.  C. 
A.  278.   108  Fed.  171,  54:  247 

289.  In  construing  a  contract,  before  the 
rule  for  choosing  between  two  meanings 
of  a  word  or  expression  can  properly  be 
applied,  it  must  be  determined  that  the 
meaning  intended  by  the  parties  is  ob- 
scure, viewing  such  word  or  expression  in 
the  light  of  the  whole  contract  and  from  the 
standpoint    of    the    parties    when    it    was 


CONTRACTS,  ll.  b. 


made.     Ullmaii   v.  Chicago  &   X.  W.  R.  Co. 
112  Wis.  150,  88  M".  W.  41.  56:  246 

290.  The  construction  put  upon  the  con- 
tract by  the  parties  may  be  looked  to  in 
determining  its  legal  effect,  if  the  language 
employed  leaves  the  true  meaning  in  doubt. 
Webster  v.  Clark,  34  Fla.  637,   16  So.  601, 

27:  126 

291.  The  interpretation  which  the  parties 
themselves  have  put  upon  an  indefinite 
or  ambiguous  contract  will  be  adopted  by 
the  courts.  Vrncennes  v.  Citizens'  Gas- 
light &  C.  Co.  132  Ind.  114,  31  N.  E.  573, 

16:  485 

292.  The  construction  which  the  parties 
themiselves  place  unon  a  contract  will  be 
adopted  by  the  court,  when  its  terms  are 
uncertain.  Union  Trust  Co.  v.  Richmond 
City  R.  Co.  154  Ind.  291,  55  If.  E.  745, 

"  48:  41 

293.  An  ambiguous  eonti'act  may  be  in- 
terpreted by  the  surrounding  facts  and  cir- 
cumstances and  the  practical  construction 
which  the  parties  have  given  it.  Sattler 
v.  Hallock.  160  N".  .Y.  291,  54  N.  E.  667, 

46:  679 
So  as  to  uphold  contract,  and  prevent  for- 
feiture. 

294.  If  a  contract  is  of  doubtful  meaning 
and  one  construction  would  make  it  legal 
and  another  illegal,  the  courts  are  bound 
to  adopt  that  construction  which  will  not 
impute  to  the  parties  an  intention  to  vio- 
late the  law.  Equitable  Loan  &  Security 
Co.  V.  Waring,  117  Ga.  599,  44  S.  E.  320, 

62:  93 

295.  "While  the  constniction  placed  upon 
a  contract  by  one  of  the  parties  only  is 
not  controlling,  still,  where  a  contract  is 
capable  of  being  construed  eitner  as  legal 
or  illegal,  and  either  party,  and  especially 
the  party  upon  whom  the  main  obligation 
rests,  has  uniformly  placed  that  construc- 
tion upon  the  contract  which  would  render 
it  legal,  this  fact  mav  be  properly  consid- 
ered in  determining  the  validity  of  the 
contract.  Id. 

296.  The  rule  for  judicial  construction, 
that  where  the  meaning  of  language .  in 
a  contract  is  doubtful,  and  either  of  two 
meanings  is  within  the  reasonable  scope 
thereof,  the  one  should  be  taken  for  the 
meaning  intended  by  the  parties  which  is 
in  harmony,  rather  than  the  one  which  is 
out  of  harmony,  with  common-law  rights, 
cannot  properly  be  invoked  for  the  purpose 
of  determining  the  contractual  intention  of 
the  parties,  merely  because  a  particular, 
significant  word  used  by  them,  as  an  ab- 
stract proposition,  may  have  either,  of  two 
meanings.  Ullman  v.  Chicago  <!t  N.  W.  R. 
Co.  112  AVis.  150,  88  N.  W.  41,  56:  246 

297.  While  forfeitures  are  not  unlawful 
the  law  does  not  favor  them,  and  all  am- 
biguities in  a  contract  are  to  be  resolved 
against  their  existence;  but  where  a  con- 
tract in  unmistakable  terms  provides  for 
a  forfeiture,  and  is  otherwise  free  from 
legal  infirmity,  neither  a  court  of  law 
nor  a  court  of  equity  will  relieve  against 
the    forfeitrire.      Equitable    Jjoan    &    Secur- 


ity  Co.   V.   Waring,   117   Ga.   509,   44   S.   E. 
320.  62:  93 

Conflict  between  printed  and  written  pro-, 
visions. 

298.  Unless  the  conflict  between  two  re- 
pugnant provisions  in  a  contract,  the  one 
written  and  the  other  printed,  is  irrec- 
oncilable, the  rule  that  the  former  must 
control  the  interpretation  of  the  contract 
in  case  of  repugnant  provisions  does  not 
apply;  but  the  contract  will  be  so  con- 
strued as  to  give  eff"ect  to  every  word 
and  expression  contained  therein.  Kratz- 
enstein  v.  W^estem  Assur.  Co.  116  N".  Y. 
54,  22  N.  E.  221,  5:  799 

b.  Entirety. 

Agreement    for   Separation   as   to   Property 

Rights,    see    Divorce    and    Separation. 

131. 
Of  Insurance  Contract,  see  Insurance,  III. 

e,  1,  f. 
See   also    supra,    165;    infra,   582,   681,   682. 

747;    Bills  and  Notes,  2. 
For  Editorial  Notes,  see  infra,  VIII,  §  21. 

299.  A  hiring  for  one  year  with  monthly 
payment  of  wages  is  an  entire  contract. 
Larkin  v.  Hecksher  (N.  J.  bup.)  51  N.  J. 
L.    133,   16  Atl.   703,  3:  137 

300.  A  contract  to  hire  a  person  for  a 
year  for  a  ceritun  sum  per  week,  payable 
weekly,  is  entire  and  indivisible.  01m- 
stead'v.  Bach,  78  Md.   132,  27  Atl.  501, 

22:  74 
Rev'g  on   Rehearing,   25   Atl.   343,        18:  53 

301.  A  contract  to  lay  a  sidewalk  10 
feet  wide,  without  stating  the  number  of 
feet  in  length,  is  not  entire  so  as  to  pre- 
vent a  recovery  upon  a  quantum  meruit. 
Katz  V.  Bedford,  77  Cal.  319,  19  Pac.  523, 

1:  826 

302.  The  discounting  of  three  notes 
amounting  to  more  than  $11,000,  under  a 
promise  to  "use,  say  $10,000  of  the  paper," 
does  not  constitute  an  entire  transaction 
which  will  prevent  a  rescission  of  the  con- 
tract as  to  one  of  the  notes  only,  after 
learning  of  the  insolvency  of  the  maker. 
Bank  of  Antigo  v.  Union  Trust  Co.  149  111. 
343,  36  N.  E.  1029,  23:  611 

303.  A  contract  to  purchase  and  sell  all 
the  phosphate  rock  consumed  by  a  manu- 
facturer of  fertilizer  for  a  .series  of  years 
is  entire.  Loudenback  Fei-tilizer  Co.  v. 
Tennessee  Phosphate  Co.  58  C.  C.  A.  220, 
121  Fed.  298,  61 :  402 

303a.  A  contra^'t  by  which  a  person  is  to 
have  full  charge  and  control  of  the  real- 
estate  advertising  business  in  the  daily. 
Sunday,  and  weekly  editions  of  a  news- 
paper, the  owner  to  receive  certain  rates, 
the  plaintiff  to  have  all  above  those  rates 
that  he  might  receive  for  advertising,  the 
contract  to  continue  for  five  years, — is  an 
entire  and  indivisible  contract,  so  that  any 
taint  of  illegality  in  it  avoids  the  whole. 
Hence,  inasmuch  as  it  requires  the  main- 
tenance of  a  Sunday  newspaper  for  the 
length  of  time  contracted  for,  the  whole 
contract  is  void  and  inoperative  where  the 


6e4 


CONTRA.CTS,  11.  c.  d.  1. 


publishing,  issuing,  and  circulating  a  Sun- 
day newspaper  is  illegal.  Handy  v.  Globe 
Pub.   Co.   41   Minn.   188,   42   N.  W.   872, 

4:  466 

c.  Time. 

As  to  Time  of  Payment,  see  Payment,  36. 
To   Accept   Proposal   of   Sale   under   Power 

of  Attorney,   see  Principal  and  Agent, 

26. 
For  Delivery  of  Goods  Sold,  see  Sale,  31- 

33. 
For  Unloading  Vessel,  see   Shipping,  9,   10. 
As  to  Delivery  of  Telegram,  see  Telegraphs, 

46. 
See  also  infra,  IV.  f. 
For  Editorial  Notes,  see  infra,  VIII.   §   21. 

304.  A  reasonable  time  for  performance 
is  implied  in  a  contract  which  expresses  no 
time  for  performance.  Whiting  v.  Gray,  27 
Fla.  482,  8  So.  726,  11:  526 

305.  In  unilateral  contracts  called  op- 
tions, the  time  fixed  for  acceptance  is  of 
the  essence  of  the  contract.  Dyer  v.  Duify, 
39  W.  Va.  148,  19  S.  E.  540,  24:  339 

306.  Time  is  not  of  the  essence  of  a  con- 
tract for  the  sale  of  real  estate,  unless 
made  so  by  the  express  agreement  of  the 
parties,  or  by  the  nature  of  the  contract  it- 
self, or  by  the  circumstances  under  which  it 
was  made.  Courts  of  equity  will  ordinarily 
infer  that  interest  on  the  deferred  pay- 
ments will  be  a  sufficient  compensation  for 
the  delay.  Frink  v.  Thomas,  20  Or.  265, 
25  Pac.  717,  12:  2.39 

307.  Time  is  of  the  essence  of  a  subscrip- 
tion contract  to  pay  money  for  the  cost  of 
a  railroad  in  consideration  of  its  equipment, 
and  the  running  of  trains  on  or  before  a 
specified  date,  and  the  subscription  cannot 
be  enforced  if  the  road  is  not  completed  by 
the  time  specified.  Garrisoil  v.  Cooke,  96 
Tex.  228,  72  S.  W.  54,  61 :  342 

308.  Although  there  is  no  stipulation  in 
the  contract  that  time  shall  be  essential, 
or  anything  in  the  nature  or  circumstances 
of  the  agreement  to  make  it  so,  it  can 
nevertheless  be  made  so  by  a  performance, 
or  tender  of  performance,  by  one  party,  and 
a  demand  of  the  other.  Frink  v.  Thomas, 
20  Or.  265,  25  Pac.  717,  12:  239 

309.  A  contract  to  repurchase  stock  "at 
the  end  of  two  years,"  if  the  holder  so 
desires,  does  not  require  him  to  give  no- 
tice on  the  first  day  after  the  expiration 
of  the  two  years,  that  he  requires  the 
promisor  to  repurchase  it,  but  he  has  a 
reasonable  time  to  give  such  notice.  La 
Dow  V.  E.  Bement  &  Sons,  li9  Mich.  685, 
79  N.  W.  1048,  45:  479 

310.  The  words  "or  as  soon  thereafter  as 
vessel  can  be  ready,"  following  a  provi- 
sion in  a  contract  for  delivering  lumber  at 
a  certain  time,  where  no  particular  vessel 
was  in  view,  but  one  was  to  be  chartered 
for  the  purpose,  mean  a  reasonable  time 
for  chartering  the  vessel  and  having  it 
ready  to  receive  the  lumber.  Whiting  v. 
Gray,  27  Fla.  482,  8  So.  726,  11:  526 

311.  A    contract    for    a    municipal    water 


supply,  which  is  void  because  perpetual 
and  therefore  in  excess  of  the  powers  of 
the  municipal  corporation,  cannot  be  con- 
strued to  have  been  intended  to  exist  mere- 
ly for  the  lifetime  of  the  water  company, 
and  to  be  valid  because  such  terra  was  not 
unreasonable.  Westminster  Water  Co.  v. 
Westminster,    98    Md.    551,    56    Atl.    990, 

64:  630 

d.    Particular    Words,    Phrases,    and   Cases. 

1.   Miscellaneous. 

In    Contractor's    Bond,    see    Bonds,    18,    19. 

Of  Bond  of  Bank  Clerk,  see  Bonds,  44. 

Bond  for  Fidelity  of  Cashier,  sfee  Bonds,  37, 
38. 

Bond  for  Fidelity  of  Assistant  Cashier,  see 
Bonds,   40. 

Contract  Limiting  Carrier's  Liability,  see 
Carriers,  928,  937,  938. 

As  to  Voting  of  Corporate  Stock,  see  Cor- 
porations, 666. 

Parol  Evidence  as  to  Meaning  of  Par- 
ticular Words,  see  Evidence,  1136-1141. 

Insurance    Contract,    see    Insurance,    III.    d. 

Contract  of  Partnership,  see  Partnership, 
5-14. 

To  Pay  for  Party  Wall,  see  Party  Wall,  5- 
7. 

As  to  Conditions  Subsequent  Relating  to 
Realty,  see  Real  Property,  I.  a,  2. 

Testamentary  Character  of  Instrument,  see 
Wills,  L  a,  2. 

See  also  infra,  532. 

For  Editorial  Notes,  see  infra,  VIII.  §§ 
21,  23. 

Not    to    enter   competitive    business;    joint 

and  several. 
See  also  infra,  329,  338. 

312.  An  agreement  not  to  engage  in  a 
competitive  business,  evidenced  by  a  letter, 
signed  by  the  firm  name,  giving  an  option 
for  the  purchase  of  a  business  and  its  good 
will,  describing  the  vendors  as  "We,  the 
undersigned,"  doing  business  under  the  firm 
name,  and  containing  a  clause,  "We  also 
agree  that  we  will  not  directly  or  indirect- 
ly engage  in"  a  competitive  business,  and  a 
writing  signed  by  all  the  members  of  the 
firm,  extending  the  option,  which  is  at- 
tached to  and  made  part  of  the  original 
option, — is  both  joint  and  several,  and 
binds  the  firm  and  each  of  its  members. 
Trenton  Potteries  Co.  v.  Oliphant  (N.  J. 
Err.  &  App.)  58  N.  J.  Eq.  507,  43  Atl.  723, 

46:  255 

313.  A  contract  by  which  a  partnership 
making  a  sale  of  its  busine&s  binds  itself 
by  the  partnership  name  not  to  re-engage 
in  such  business  for  a  certain  period  with- 
in the  same  place,  though  signed  by  the  in- 
dividual partners,  does  not  preclude  them 
from  again  re-engaging  in  such  business  as 
individuals.  Steichen  v.  Fehleisen,  112 
Iowa,  612..  84  N.  W.  715,  51:  412 

314.  Parties  are  bound  individually  by  a 
clause  in  an  agreement  selling  a  partner- 
ship business,  that  "we  agree  and  bind  our- 
selves   not    to    enter    into    or    conduct"    a 


CONTRICTS,  II.  d.  1. 


685 


similar  businoss  in  the  territory  covered 
by  the  business  sold,  which  is  signed  by 
them  in  tneir  individual  names.  Raymond 
V.  Yarrington,  96  Tex.  443,  73  S.  W.  800, 

62:  962 
As  to  liability  for  injury. 

315.  A  contract  betweon  the  owner  of  a 
building  and  a  corporation  renting  offices 
therein,  that  "the  landlord  shall  not  be  re- 
sponsible for  any  loss  or  injury  arising 
from  or  daring  the  use  or  operation  of  the 
elevator,"  does  not  apply  in  case  of  in- 
jury to  an  officer  of  the  corporation,  who 
was  injured  while  using  the  elevator  un- 
der the  general  invitation  to  persons  hav- 
ing business  in  the  building,  although  he 
attested  the  contract  and  was  therefore 
aware  of  its  contents.  CriflFen  v.  Manice, 
166  X.  Y.  188,  59  N.  E.  925,  52:  922 
To  pay  bill  of  expenses  for  relief  6f»  certain 

person. 

316.  A  promise  to  pay  a  judgment  and 
the  damages  and  costs  which  a  town  may 
incur  in  case  it  assumes  the  defense  of  a 
suit  for  the  value  of  supplies  furnished 
the  mother  of  the  promisor  is  not  shown  by 
a  letter  promising  to  "pay  the  bill"  of  ex- 
penses incurred  in  her  relief.  Freeman  v. 
Dodge,  98  Me.  531,  57  Atl.  884,  66:  395 
To  pay  draft. 

317.  A  telegram  by  a  bank  offering  to 
pay  a  draft  by  a  certain  person  for  $2,000 
means  to  pay  it  at  the  bank's  place  of  busi- 
ness, and  imposes  no  obligation  to  accept  a 
draft  for  $2,000  "with  exchange"  on  another 
place.  Lindley  v.  First  Nat.  Bank,  76  Iowa, 
629,  41  N".  W.  381,  2:  709 
To  deliver  money. 

318.  Tender  of  a  check  is  not  a  compli- 
ance with  a  contract  by  a  telegraph  com- 
pany to.  promptly  transmit  and  deliver 
money.  Robinson  v.  Western  U.  Teleg.  Co. 
24  Ky.  L.  Rep.  452,  68  S.  W.  656,  57:  611 
To  furnish  gas. 

319.  The  word  "lamp"  as  used  in  a  con- 
tract for  the  furnishing  and  use  of  natural 
gas  is  to  be  construed  with  reference  to 
the  context,  the  time,  place,  and  habits  of 
the  people  with  reference  to  which  it  is 
used,  and  the  popular  understanding  of  the 
word  in  the  localities  where  natural  gas 
is  generally  used.  Saltsburg  Gas  Co.  v. 
Saltsburg,  138  Pa.  250,  20  Atl.  844,  10:  193 
To  establish  college. 

320.  A  contract  to  establish  a  college  "in" 
a  certain  town  does  not  require  it  to  be 
placed  within  the  corporate  limits  when  a 
large  number  of  the  inhabitants  of  the 
town  dwell  beyond  such  limits.  Rogers  v. 
Galloway  Female  College,  64  Ark.  627,  44 
S.  W.  454,  39.-636 

321.  A  contract  to  establish  a  college 
"at"  a  certain  town  does  not  require  that 
it  should  be  placed  within  the  corporate 
limits.  Id. 
To  establish  depot. 

322.  An  agreement  on  the  part  of  a  rail- 
road company  to  establish  a  station  at  a 
particular  point  is  not  one  to  keep  it  there 
forever,  but  is  made  subject  to  tne  general 
contingencies  of  business,  the  public  inter- 
est,    and     the     change,     modification,     and 


growth  of  transportation  routes  as  they 
may  affect  the  requirements  of  the  railroad 
company's  business.  Texas  &  P.  R.  Co.  v. 
Scott,  23  C.  C.  A.  424,  41  U.  S.  App.  624, 
77  Fed.  726,  37 :  94 

For  use  of  street  railway. 

323.  A  street  railway  company  which  by 
contract  has  provided  for  the  running  of 
cars  bj"^  another  company  over  its  tracks  to 
a  depot  which  it  uses  for  a  steam  railroad 
is  not,  without  express  provisions,  re- 
strained thereby  from  the  sale  of  its  fran- 
chises, and  road  to  a  rival  of  the  other 
company,  although  the  purchaser  proceeds 
under  the  franchise  to  construct  a  line  be- 
tween the  depot  and  a  ferry  which  had 
previously  been  reached  only  by  such  other 
company.  Prospect  Park  &  C.  I.  R.  Co. 
V.  Coney  Island  &  B.  R.  Co.  144  N.  Y.  152, 
39  N.  E.  17,  26:  610 

Certificates. 

.324.  A  promise  to  pay  certificates  on  con- 
dition that  all  certificates  of  similar  im- 
port should  be  paid  pro  rata,  and  no  pref- 
erence given  to  any  of  them  over  others, 
entitles  the  holder  of  such  certificates,  when 
all  the  others  have  been  surrendered  and 
extinguished,  only  to  such  amount,  if  any, 
as  was  paid  on  the  others,  if  they  were  sur- 
rendered without  fraud  or  collusion. 
Pistel  V.  Imperial  Mutual  L.  Ins.  Co,  88 
Md.  522,  42  Atl.  210,  43:219 

325.  A  provision  in  a  certificate  of  an 
investment  association  requiring  the  holder 
to  surrender  it,  whenever  called,  upon  pay- 
ment of  its  redemption  value,  which  is 
declared  to  be  the  full  amount  paid  in, 
with  interest  at  8  per  cent  per  annum, 
and  its  proportionate  share  of  profits 
earned  in  excess  of  8  per  cent  per  annum, 
does  not  authorize  the  redemption  of  any 
certificate  until  it  has  earned  at  least  8 
per  cent  interest  on  the  amounts  paid  in. 
Equitable  Loan  &  Security  Co.  v.  Waring, 
117  Ga.  599,  44  S.  E.  320,  62:93 

326.  In  construing  a  contract  of  an  in- 
vestment association  the  statements  con- 
tained in  the  certificate  evidencing  the 
contract  must  control,  where  there  is  a  va- 
riance between  them  and  other  statements 
in  the  advertising  literature  of  the  com- 
pany. Id, 
With  carrier. 

See  also  supra,  310. 

For  Editorial  Notes,  see  infra,  VIII.  §  23. 

327.  The  words  "in  case  of  accident"  be- 
ing used  in  a  bill  of  lading,  referring  to 
events  involving  damage  to  the  subject  of 
carriage  for  which  the  carriar  would  be  lia- 
ble, and  later  in  the  contract  the  words 
"negligence  aforesaid"  being  used  in  regard 
to  the  producing  cause  of  injuries  to  the 
subject  of  carriage,  without  any  precedent 
language  other  than  the  words  "in  case  of 
accident"  to  which  such  words  can  reasona- 
bly refer,  leaving  such  latter  expression 
without  significance  except  by  reference  to 
the  former  expression,  such  latter  expres- 
sion should  be  taken  as  pointing  to  the 
former  under  the  rule  for  judicial  construc- 
tion, that  every  word  or  expression  in  a 
contract  should  be  given   some  significance 


CONTRACTS,  11.  d,  2. 


if  that  can  reasouablv  be  done.     Ullman  v. 

Chicago  &  N.  W.  R.'Co.  '112  Wis.  150,  88 

N.  W.  41,  56:  246 

Subscription. 

Subscriber's  Right  to  Recover  Back  Money, 

see  Subscription. 
For  Editorial  Notes,  see  infra,  YlII,  §  22. 

328.  A  letter  to  the  board  of  supervisors 
of  a  county  agreeing  to  pay  $1,000  toward 
the  erection  of  a  soldiers'  monument,  pro- 
vided $2,000  is  raised  by  tax  within  a  cer- 
tain time,  is  a  conditional  subscription 
which  becomes  absolute  when  the  condition 
as  to  raising  the  money  by  tax  is  per- 
formed. La  Fayette  County  Monument 
Corp.  V.  Magoon,  73  Wis.  627,  42  N.  W.  17, 

3:  761 
328a.  The  city  of  Philadelphia,  within 
which  was  to  be  erected  a  monument  to 
Washington  by  the  condition  of  subscrip- 
tions '  to  the  fund  raised  for  that  purpose 
by  the  Cincinnati  Society  in  1810,  was  not 
limited  to  the  corporate  limits  of  Philadel- 
phia at  that  time,  but  included  the  coter- 
minous, built-up  territory  identified  in  the 
popular  mind  as  the  city,  although  formed 
into  boroughs  and  districts  having  separate 
legal  organizations.  Re  Washington  Monu- 
ment Fund,  154  Pa.  621,  26  Atl.  647, 

20:  323 

329.  The  obligation  of  subscribers  to  a 
contract  for  the  construction  of  a  creamery 
at  a  stated  price,  who  sign  their  names, 
without  any  specification  of  amounts,  at  the 
end  of  a  subscription  paper  after  the  names 
of  other  subscribers  who  have  specified  with 
each  name  the  amount  subscribed,  is,  prima 
facie  at  least,  several,  and  not  joint,  and 
each  is  liable  for  his  proportion  of  that  part 
of  the  total  amount  of  the  subscription 
which  has  not  been  provided  for  by  the  sub- 
scription of  specific  amounts.  Cornish  v. 
West,  82  Minn.  107,  84  N.  W.  750,       52:  355 

330.  A  contract  between  a  creamery  sup- 
ply firm  and  those  agreeing  to  subscribe  for 
the  erection  of  a  butter  factory,  by  which 
the  former  was  to  erect  and  complete  the 
factory  and  the  latter  to  pay  the  contract 
price,  creates  a  several  liability  on  the  part 
of  each  subscriber  to  the  amoiuit  of  his  sub- 
scription only;  but  the  interests  of  the  sub- 
scribers are  joint  in  so  far  that  all  must 
unite  in  order  to  repudiate  and  renounce 
the  contract.  Gibbons  v.  Bente,  51  Minn. 
499,  53  N.  W.  756.  22:  80 

2.  As  to  Transfer  of  Property. 

a.  Real   Property. 

Construction  of  Deed  as  to  Boundary,  see 
Boimdaries,  II. 

Deed  of  Standing  Timber,  see  Timber,  10. 

Contracts  as  to  Real  Property  Generally, 
see  Vendor  and  Purchaser. 

Contract  for  Good  or  Marketable  Title,  see 
Vendor  and  Purchaser,  1.  c. 

Contracts  as  to  Quantity  of  Land,  see  Vend- 
or and  Purchaser,  I.  d. 

331.  A  plain  and  unequivocal  promise  to 
convey  land  to  a  person  if  she  will  go  upon 


and  improve  it  means  to  give  the  property 
absolutely,  and  to  execute  a  deed  therefor. 
Burlingame  v.  Rowland,  77  Cal.  315,  19  Pac. 
526,  1 :  829 

332.  An  agreement  of  husband  and  wife 
to  convey  by  deed  or  will  all  their  property, 
both  real  and  personal,  which  they  may  own 
at  the  time  of  their  death,  will  include  all 
they  own  jointly  or  separately.  Svanburg 
V.   Fosseen,  75  Minn.  350,  78  N.  W.  4, 

43:  427 

333.  An  executory  contract  by  a  corpora- 
tion to  sell  franchises,  with  a  stipulation  to 
secure  and  transfer  additional  rights  of  way, 
cannot  be  construed  as  part  of  the  same 
contract  with  an  executed  sale  of  stock  of 
the  corporation,  made  by  persons  in  their  in- 
dividual capacity.  Blagen  v.  Thompson,  23 
Or.  239,  31  Pac.  647,  18:  315 

334.  A  grandchild  of  one  granting  land  "to 
a  railroad  company,  who  has  ceased  to  be  a 
member  of  the  latter's  household,  has  no 
rights  tmder  a  clause  in  the  deed  entitling 
the  grantor  and  his  family  to  free  passage 
over  the  road  as  long  as  the  granted  land 
shall  continue  to  be  used  for  railroad  pur- 
poses under  the  charter  of  the  grantee. 
Dodge  V.  Boston  &  P.  R.  Co.  154  Mass,  299, 
28  N.  E.  243,  13:  318 

335.  A  grant  of  a  right  of  way  through 
property  suitable  only  for  residence  pur- 
poses, to  secure  the  transfer  of  a  railway 
station  from  a  point  some  distance  from  a 
town  into  it,  will  not  include  the  right  to 
locate  thereon  stock  pens  which  will  be  a 
nuisance  to  adjoining  property,  although 
such  property  is  unimproved  at  the  time  of 
the  grant,  and  the  deed  states  that  the  land 
granted  may  be  used  for  the  transaction  of 
all  business  connected  with  the  railway,  or 
incident  thereto.  Missouri,  K.  &.T.  R.  Co. 
V.  Mott,  98  Tex.  91,  81  S.  W.  285,  70:  579 
As  to  price. 

336.  The  contract  mode  of  ascertaining 
the  price  must  be  pursued  when  it  is  speci- 
fied in  the  contract.  Woodruff  v.  Woodruflf 
(N.  J.  Ch.)  44  N.  J.  Eq.  349,  16  Atl.  4, 

1:  380 

337.  The  limit  to  which  the  court  will  go 
in  fixing  the  price  is  to  ascertain  it  when 
the  contract  simply  provides  that  it  shall 
be  fair.  Id. 

338.  A  joint  promise  by  the  purchasers  of 
real  estate  to  pay  the  price  cannot  be  modi- 
fied by  a  mistaken  construction  placed  upon 
the  writing  by  the  holder  and  makers,  that 
each  is  to  be  liable  for  his  share  only.  Sullv 
V.  Campbell,  99  Tenn.  434,  42  S.  W.  15, 

43:  161 

339.  Under  a  conveyance  of  land  in  con- 
sideration of  a  contract  obligating  the  ven- 
dee to  peVform  certain  services  for  the  vend- 
or, conditioned  upon  the  vendee's  retaining 
the  title  to  the  property  during  the  term 
the  services  are  to  be  performed,  and  further 
obligating  himself  in  case  of  a  sale  thereof 
to  pay  the  vendor  a  certain  sum  of  money 
and  to  two  other  persons,  strangers  to  the 
transaction,  other  specified  sums,  the  vendor 
taking  a  mortgage  on  the  land  to  secure  I 
the  performance  of  the  contract,  the  total  | 
consideration   named  therein   being  the   ag- 


CONTRACTS,  II.  d,  2. 


687 


gregate  of  all  the  contingent  payments,  and 
the  mortgage  being  so  drawn  as  to  indicate 
the  terms  of  such  contract,  though  it  went 
to  the  vendor  only, — the  vendee,  upon  sell- 
ing the  property,  immediately  became  ab- 
solutely indebted  to  the  vendor  and  the  two 
other  persons  named  for  the  sums  agreed  to 
be  paid.  Tweeddale  v.  Tweeddale,  116  Wis. 
517,  93  N.  W.  440,  61:  509 

340.  If  an  aged  parent  conveys  his  prop- 
erty to  his  son  to  secure  support  for  him- 
self during  the  remainder  of  his  life, 
whether  the  agreement  calls  for  support 
generally,  or  by  paying  to  the  grantor 
money  or  property  in  specific  amounts  at 
specified  times,  the  contract  must  be  con- 
strued to  required  personal  performance  by 
the  grantee  of  the  obligations  incurred  by 
him.  Glocke  v.  Glocke,  113  Wis.  303,  89 
N.  W.  118,  ,     57:  458 

6.  Personal  Property. 

By  Corporjition  Purchasing  Property  and 
Franchise  of  Other  Corporation,  see 
Corporations,  65. 

Purchase  by  Corporation  of  Partnership  As- 
sets, see  Corporations,  66. 

Judicial  Notice  as  to  Meaning  of  Term 
"F.  O.  B.  Cars,"  see  Evidence,  134. 

Insurance  Policy,  see  Insurance,  723. 

Contract  of  Sale  as  Distinguished  from 
Agency,  see  Sale,  6. 

See  also  supra,  309,  332,  333;  infra,  650; 
Sale,  8,  9. 

341.  In  a  contract  by  which  one  agrees 
to  buy  out  at  a  future  date  a  certain  busi- 
ness, and  to  buy  all  goods  that  the  seller 
has  on  hand  at  that  date  at  their  invoice 
price,  provided  their  entire  value  is  not 
above  a  certain  amount,  the  insertion  of  a 
clause  to  the  effect  that  the  buyer  shall  be 
bound  to  take  only  such  goods  as  he  him- 
self shall  select  will  not  relieve  him  of  the 
obligation  to  take  goods  to  the  amovmt 
agreed  upon,  but  simply  gives  him  the  right 
to  choose  the  goods  he  will  take  to  make  up 
the  quantity  which  he  agreed  to  buy. 
Jacobson  v.  Sullivan,  152  Mass.  480,  25  N.  E. 
973,  9:  508 

342.  A  clause  in  a  contract  made  in  the 
United  States,  by  citizens  thereof,  for  the 
sale  of  a  certain  English  patent,  that  "it  is 
understood  that,  said  English  patent  is  in 
full  form  and  effect,  otherwise  said  II.  is 
to  be  relieved  from  payment,"  etc., — con- 
strued to  mean  that  the  patent  was  to  be 
"of  effect"  in  a  sense  that  a  United  States 
patent  must  be  to  obtain  recognition  in 
our  courts.  Chemical  Electric  Light  & 
Power  Co.  v.  Howard,  148  Mass.  352,  20 
N.  E.  92,  2:  168 

343.  The  word  "shipment,"  in  a  contract 
purchasing  1,000  tons  of  sugar  "for  ship- 
ment within  thirty  days,  by  sail  or  steam, 
seller's  option,"  and  providing  for  marine 
insurance  by  the  buyers,  moans  the  deliv- 
ery, within  the  time  required,  on  some  ves- 
sel destined  to  the  proper  port,  which  the 
seller  has  reason  to  suppose  will  sail  within 
a  reasonable  time  after  shipment,  and  does 
not  mean  a  clearance  of  the  vessel  as  well 


as  putting  the  goods  on  board,  where  there 
is  nothing  to  indicate  that  the  seller  was 
expected  to  exercise  any  control  over  the 
clearance  of  the  vessel  or  her  subsequent 
management.  Mora  y  Ledon  v.  Havemever, 
121  N.  Y.  179,  24  N.  E.  297,  8: '245 

For  copyright. 

344.  A  third  person  who  buys  the  plates, 
sheets,  and  copyright  of  a  published  work, 
cannot  be  considered  as  the  successor  in 
business  of  the  publisher  within  the  mean- 
ing of  a  contract  by  the  publisher  in  pro- 
curing electrotype  plates  for  it  that  they 
should  be  used  only  by  the  publisher  "or  his 
heirs  or  successors  in  business."  Meyer  v. 
Estes,  164  Mass.  457,  41  N.  E.  683,  32:  283 
To  indemnify  seller. 

345.  A  covenant  by  a  purchaser  of  the 
business  and  effects  of  a  corporation,  the 
sale  of  which  is  intended  to  terminate  its 
existence,  to  indemnify  it  from  and  against 
the  contracts  and  engagements  to  which  the 
said  vendor  appears  to  be  now  liable,  and 
also  all  claims  and  demands  on  account  of 
the  same  contracts  and  engagements,  does 
not  cover  a  claim  by  the  president-manager 
of  the  corporation  to  salary  for  the  time 
subsequently  accruing,  where  it  was  founded 
merely  on  the  fact  that  he  had  been  elected 
president,  and  there  was  no  contract  that 
the  services  and  salary  should  continue  for 
any  specified  time.  Busell  Trimmer  Co.  v. 
Cobum,   188  Mass.   254,  74  N.  E.   334, 

69:  821 
Price. 
See  also  supra,  336-340. 

346.  An  agreement  on  the  exchange  of 
stocks  and  securities,  as  to  the  valuation 
at  which  the  exchange  shall  be  made,  does 
not  constitute  a  contract  that  they  are  of 
the  actual  market  value  specified.  Rocke- 
feller V.  Merritt,  40  U.  S.  App.  666,  76  Fed. 
'J0.'>.  22  C.  C.  A.  608,  35:  633 

347.  Where  the  current  price  of  a  manu- 
factured article  is  that  arbitrarily  fixed  by 
a  combination  of  manufacturers,  its  fair 
market  value  will  govern  in  an  action  for 
its  price  upon  a  sale  in  which  no  price  was 
mentioned.  Lovejov  v.  Michels.  88  Mich. 
15,  49  X.  W.  901,"  ■  13:770 
Credit;  payment. 

348.  A  right  to  credit  for  the  purchase 
price  of  goods  sold  is  not  given  by  a  pro- 
vision for  a  discount  for  cash,  where  the 
contract  expressly  states  "Terms  cash." 
Samuel  M.  Lawder  &  Sons  Co.  v.  Albert 
Mackie  Grocery  Co.  97  Md.  1.  54  Atl.  634. 

62:  795 
34!).  The  first  annual  payment  is  optional 
with  the  obligor  on  a  contract  to  purchase 
certain  patents  and  inventions,  which  does 
not  mention  a  cash  payment  which  was 
made,  but  calls  for  annual  payments  for 
fourteen  years  amounting  to  $250,000.  or,  in 
lieu  tliereof,  the  sum  of  $100,000  at  any 
time  within  two  years,  and  provides  that 
on  failure  to  rnake  any  payment  when  due, 
within  sixty  days  after  demand,  the  "sale 
shall  be  null  and  void  and  of  no  effect," 
and  the  patents  revert  discharged  of  any 
obligations  under  the  contract,  with  a  fur- 


688 


CONTRACTS,  II.  d.  8,  4. 


ther  provision  giving  the  obligor  the  right 
to  assign  the  contract  and  thus  free  himself 
from  personal  liability.  Williamson  v.  Hill, 
154  Mass.   117,  27  N.  E.  1008,  13:  690 

3.  Other  Agreements  Relating   to  Land  or 

Water. 

As  to  Term  of  Tenant,  see  Landlord  and 

Tenant,  36,  37. 
Oil  and  Gas  Lease,  see  Mines,  68-71. 
Railroad  Lease,  see  Railroads,  9. 
See  also  supra.  311,  infra,  356,  357. 
For  Editorial  Xotes,  see  infra,  VIII,  §  23. 

350.  The  words  "as  long  as  we  can  make 
it  pay"  have  no  special  signification  in  a 
contract  to  mine  ore.  Davie  v.  Lumber- 
man's Min.  Co.  93  Mich.  491,  53  N.  W.  625, 

24:  357 
350a.  An  assignee  of  a  contract  for  the 
sale  of  real  estate,  who  turns  it  over  to 
others  without  formal  assignment,  so  that 
they  receive  the  benefit  of  the  purchase, — 
especially  if  he  participates  therein  him- 
self,— is  liable  upon  a  covenant  to  pay  his 
assignor  a  certain  sum  in  case  he  sells  such 
contract  or  completes  the  purchase.  Fergu- 
son V.  McBean,  91  Cal.  63,  27  Pac.  518. 

14:  65 
For  grape  vines. 

350b.  A  contract  for  planting  grape  vines 
may  be  construed  to  permit  the  planting  of 
cuttings  without  roots.  Remy  v.  Olds  (Cal.) 
Not  Off.  Rep.  34  Pac.  216,  21 :  645 

To  take  water  from  canal  feeder. 

351.  Maintenance  for  nearly  fifty  years, 
with  the  knowledge  and  acquiescence  of  the 
canal  commissioners,  of  flumes  to  take 
water  from  a  canal  feeder,  under  a  contract 
by  which  the  commissioners  granted  the 
right  to  take  it,  the  bottoms  of  which  are 
level  with  the  bottom  of  the  feeder,  so  that 
whenever  the  grantee  was  entitled  to  take 
water  he  would  receive  it  under  a  head,  is 
a  practical  construction  of  the  rights  of  the 
parties  which  will  prevent  the  commission- 
ers from  subsequently  placing  weirs  in  the 
flumes  so  that  no  water  can  be  received 
until  it  has  reached  a  certain  height  in  the 
feeder.  Merrifield  v.  Canal  Commissioners, 
212  III.  456,  72  N.  E.  405,  587,  67:  369 

4.  For  Services;   Construction  of  Buildings 

or  Works. 

Father's  Release  from  Liability  for  Injuries 
to  Minor  Servant,  see  Release,  17. 

Contract  with  Waterworks  Company,  see 
Waters,  545. 

See  also  supra,  340. 

352.  A  contract  to  pay  for  the  services 
of  one  expert  in  putting  in  an  electrical 
equipment  will  not  authorize  a  recovery  at 
contract  rates  for  the  services  of  two.  Edi- 
son General  Electric  Co.  v.  Canadian  P.  Nav. 
Co.  8  Wash.  370,  36  Pac.  2G0,  24:  315 

353.  An  agreement  in  a  contract  of  em- 
ployment, that  refusal  to  go  on  a  second 
year  can  be  justified  only  by  "written  notice 
.     .     .     of   anv   cause   of  dissatisfaction   on 


or  before  January  1,"  plainly  means  "any 
existing  cause"  or  "any  cause  relied  on," 
and  on  such  notice  a  cause  not  alleged  there- 
in, if  it  existed  before  January  1,  may  be  re- 
lied upon.  Hughes  v.  Gross,  166  Mass.  61,  43 
N.  E.  1031,  32:  620 

354.  An  agreement  to  furnish  a  home  for 
a  woman  about  to  marry,  and  her  child,  and 
properly  provide  for  her  and  the  child,  in 
case  the  husband  fails  to  do  so,  will  extend 
to  furnishing  a  home  in  which  to  live,  and 
provisions  and  clothing,  taking  into  account 
her  ability  to  cook  the  food  and  do  the 
necessary  sewing,  without  regard  to  the 
kind  of  home  and  support  which  the  hus- 
band would  be  expected  to  furnish  from  his 
circumstances  in  life.  Wright  v.  Wright, 
114  Iowa,  748,  87  N.  W.  709,  55:  261 
Subcontract. 

355.  A  construction  company  becomes  a 
subcontractor,  and  not  an  original  contract- 
or with  a  railroad  company,  when,  with  full 
knowledge  that  a  contract  company  is  un- 
able to  complete  the  work,  it  agrees  with  it 
to  do  so  for  an  agreed  sum  in  cash  and 
bonds,  with  a  provision  that  it  shall  have  a 
"subcontractor's  lien,"  although  the  rail- 
road company  has  consented  to  the  sublet- 
ting of  the  contract  and  that  the  construc- 
tion company  shall  have  a  contractor's  lien. 
Richmond  &  I.  Const.  Co.  v.  Richmond 
N.  I.  &  B.  R.  Co.  31  U.  S.  App.  704,  15  C.  C. 
A.  289,  68  Fed.  105,  34:  625 
For  stone  from  quarry. 

356.  The  word  "shipped"  in  a  contract  by 
a  lessee  of  a  quarry  to  pay  certain  rates  for 
stone  shipped,  cannot  be  construed  to  in- 
clude stone  not  shipped,  although  quarried 
and  ready  for  shipment.  Crawford  v.  Oman 
&  S.  Stone  Co.  34  S.  C.  90,  12  S.  E.  929, 

12:  375 

357.  The  words  "dimension  stone,"  in  a 
quarry  lease  fixing  prices  for  such  stone, 
must  be  construed  in  their  technical  trade 
meaning,  in  the  absence  of  anything  in  the 
contract  to  indicate  the  contrary,  where 
both  parties  are  quarry  men.  Id. 
Building  contracts. 

See  also  supra,  355. 

For  Editorial  Notes,  see  infra,  VTII,  §  21. 

358.  An  agreement  to  pay  the  last  instal- 
ment on  a  contract  upon  satisfactory  evi- 
dence that  no  liens  or  unsatisfied  claims 
exist  on  the  work  applies  only  to  claims 
under  the  mechanics'  lien  law;  and  the  con- 
dition is  complied  with  if  no  liens  are  filed 
during  the  time  allowed  by  law.  Wallis 
Iron  Works  v.  Monmouth  Park  Asso.  (N.  J. 
Err.  &  App.)  55  N.  J.  L.  132,  26  Atl.  140, 

19:  456 

359.  The  rights  of  persons  submitting  bids 
for  the  erection  of  a  building  cannot  be  de- 
termined by  the  printed  "notice  to  bidders," 
where  it  appears  that  the  terms  of  the  con- 
tract were  orally  fixed  at  a  conference  be- 
tween the  bidders  and  the  persons  request- 
ing the  bids,  that  the  terms  so  fixed  were 
not  incorporated  into  the  printed  notice,  and 
that  both  parties  rested  upon  what  was 
said  and  done  at  the  conference.  McNeil  v. 
Boston  Chamber  of  Commerce,  154  Mass. 
277,  28  X.    K.  245.  13:  559 


CONTRACTS,  III.  a. 


689 


Construction  of  levee. 

360.  A  contract  for  constructing  a  levee 
within  a  certain  time  at  a  certain  price  per 
cubic  yard,  with  a  forfeiture  for  delay, 
describing  the  kind  of  earth  to  be  worked 
and  its  quantity,  which  fails  to  provide  for 
any  different  rates  in  case  the  quantity  or 
kind  is  not  as  represented,  shows  that  those 
representations  were  not  considered  mate- 
rial. Nounnan  v.  Sutter  County  Land  Co. 
81  Cal.  1,  22  Pac.  515,  *  6:  219 
Hiring  or  reserving  ball  player. 

361.  The  ordinary  skill,  knowledge,  and 
efficiency  of  baseball  players  is  all  that  is 
required  of  a  player  under  a  conti-act  of 
hiring  for  a  definite  time,  which  is  silent  as 
to  the  degree  of  skill  to  iJe  possessed.  Bal- 
timore Base  Ball  &  E.  Co.  v.  Pickett,  78 
Md.   375,   28   Atl.   279,  .       22:  690 

362.  A  contract  giving  baseball  xilubs  the 
right  to  "reserve"  their  players  for  another 
season  simply  gives  the  clubs  the  right,  as 
against  other  clubs,  to  secure  the  services 
of  such  players  if  the  parties  can  agree,  but 
places  no  obligations  on  the  players  to  en- 
ter into  a  contract  lor  such  season.  Hence 
the  players  cannot  be  compelled  to  enter 
into  such  future  contract  by  a  decree  of 
specific  performance,  and'  consequently  they 
cannot  be  enjoined  from  entering  into  con- 
tracts with  other  clubs.  Metropolitan  Exhi- 
bition Co.  V.  Ewing,  42  Fed.  198,  7:  381 

363.  There  is  no  necessity  to  particularize 
in  a  contract  for  the  services  of  a  ball 
player  .which  gives  the  employer  the  right 
to  ''reserve"  such  player  for  the  season  next 
ensuing,  the  conditions  or  characteristics  of 
the  option,  if,  when  the  contract  is  made, 
the  term  has  a  well -understood  definition. 

Id 


m.  Validity  and  Eflfect. 
a.   In  General. 

As  to  Consideration,  see  supra,  I.  c. 

As  to  Definiteness  and  Meeting  of  Minds, 
see  supra,   I.  d. 

Formal  Requisites,  see  supra,  1.  e. 

Stipulation  for  Attorneys'  Fees,  see  At- 
torneys' Fees,  9-15. 

For  Continuance  of  Canal,  see  Canals,  9. 

Contracts  Limiting  Liabilitv  of  Carrier,  see 
Carriers,  II.  a,  10.  f;  *II.  a,  12,  e;  II. 
b,  7. 

Champertous  Contracts,  see  Champerty. 

Combination  to  Injure  Another's  Business, 
see  Conspiracy,  I.  c. 

Contract  Ousting  Jurisdiction  of  Courts, 
see  Insurance,  1288. 

Estoppel  to  Deny  Validity,  see  Estoppel,  27. 

Giving  Validity  by  Estoppel,  see  Estoppel, 
75-77. 

Burden  of  Proving  Invalidity,  see  Evidence, 
646. 

Of  Conveyance  of  Expectancy,  see  Expect- 
ancy, 4-10. 

Of  Married  Woman's  Contracts,  see  Hus- 
band and  Wife,  I.  b,  2. 

Validity  of  Contracts  Between  Husband  and 
Wife,  see  Husband  and  Wife,  II.  e. 
L.R.A.  Dig.— 44, 


Contracts  by  Insane  Person,  see  Incompe- 
tent Persons,  II. 

Contracts  by  Infants,  see  Infants,  I.  d,  2. 

Validity  of  Insurance  Contract,  see  Insur- 
ance, 185-188,  1288. 

Necessity  of  Pleading  Illegality,  see  Plead- 
ing, 489,  490. 

Raising  Legality  by  Demurrer,  see  Pleading, 
605.  I 

Specific  Enforcement  of  Illegal  Contract, 
see   Specific  Performance,  21,  22. 

Validity  of  Sunday  Contracts,  see  Sunday, 
IV. 

See  also  supra,  294,  295,  infra,  733,  785,  840. 

For  Editorial  Note.s,  see  infra,  VIII.  §§ 
25-38. 

364.  The  courts  are  not  authorized  to  de- 
clare a  contract  void  merely  because  it  may 
be  unwise,  or  even  foolish.  Equitable  Loan 
&  Security  Co.  v.  Waring,  117  Ga.  599,  44 
S.  E.  320,'  62:  93 

365.  One  contracting  to  perform  work  up- 
on a  public  iniprovemeni  does  not,  by  in- 
corporating into  the  contract  the  provisions 
of  a  statute  as  to  the  rate  of  wages  to  be 
paid,  make  them  binding  upon  himself  if  the 

I  statute  is  invalid.     People  ex  rel.  Rodgers 
'  V.  Coler,  166  N.  Y.  1,  59  N.  E.  716, 

52:  814 

366.  A  contract  invalid  as  to  one  of  the 
parties  is  invalid  also  as  to  the  other.  Port- 
land V.  Portland  Bituminous  Paving  & 
Improv.  Co.   33  Or.   307,  52  Pac.  28, 

44:  527 

367.  A  contract  wholly  void  is  void  as  to 
everybody  whose  rights  would  be  aff"ected 
by  it  if  valid.  Kellogg  v.  Howes,  81  Cal. 
170,  22  Pac.  509,  6:  588 

368.  An  apparent  absence  of  consideration 
is  only  a  circumstance  to  be  taken  into  ac- 
count with  other  facts  and  circumstances 
in  the  case  in  determining  whether  or  not  a 
conveyance  was  procured  through  fraud  and 
undue  influence.  Lewis  v.  Arbuckle,  85 
Iowa,  335,  52  N.  W.  237,  16:  677 

369.  A  contract  by  which  an  ice  manu- 
facturing company  undertakes  to  sell  waste 
water  to  a  railroad  company  which  needs  it 
to  supply  its  engines  cannot  be  held  void 
for  collusion  because  the  railroad  company 
undertakes  to  lay  the  necessary  pipes,  which 
the  ice  company  has  no  power  to  do  for 
want  of  a  franchise  to  lay  pipes  in  the 
streets.  Canton  v.  Canton  Cotton  Ware- 
house Co.  84  Miss.  268.  36  So.  266,  65:  561 
Effect  of  partial  invalidity. 

As     to    Voting    of    Corporate    Stock,    see 

Corporations,  656. 
Separation    Agreement,     see    Divorce     ajid 

Separation,  131. 
See  also  infra,  395,  400,  412. 
For  Editorial  Notes,  see  infra,  VIIL  §  3». 

370.  A  person's  title  under  a  valid  con- 
tract for  the  purchase  of  an  interest  in 
brood  mares,  which  is  coupled  with  a  voida- 
ble contract  as  to  their  keeping,  will  not  be 
afi"ected  by  the  avoidance  of  the  latter  con- 
tract. Lowman  v.  Sheets,  124  Ind.  416,  24 
N.   E.    351,  7:  784 

371.  That  provision  of  an  agreement  by 
one  who  is  allowed,  for  a  legal  considera- 


690 


CONTRACTS,  HI.  b. 


tion,  to  place  a  structure  on  a  railroad 
right  of  way,  which  undertakes  to  indem- 
nify the  railroad  company  for  loss  or  injury 
to  his  property  while  upon  the  premises, 
throuffh  the  negligence  of  the  company  or 
its  servants,  is  enforceable,  although  other 
provisions  of  his  agreement  may  be  invalid. 
Osgood  V.  Central  Vt.  R.  Co.  77  Vt.  334, 
60  Atl.   131,  70:  930 

372.  The  nullifying,  by  the  subsequent 
passage  of  a  statute  giving  certain  tele- 
graph companies  a  right  to  construct  lines 
along  post  roads,  of  a  provision  in  a  con- 
tract between  a  railroad  and  telegraph  com- 
pany for  the  construction  along  the  railroad 
right  of  way  of  a  telegraph  line  at  joint 
expense,  which  requires  the  railroad  com- 
pany to  exclude  all  other  telegraph  compa- 
nies from  use  of  its  right  of  way,  does  not 
render  invalid  the  provisions  of  the  contract 
which  provide  for  the  maintenance  of  the 
line  at  joint  expense  and  the  joint  use  of 
the  poles  for  the  stringing  of  wires.  West- 
ern U.  Teleg.  Co.  v.  Pennsylvania  Co.  64 
C.  C.  A.  285,  129  Fed.  849,  68:  968 
For  future  crops. 

373.  A  contract  by  which  one  person  is  to 
plant  and  cultivate  peach  trees  upon  the 
land  of  another  for  a  term  of  ten  years,  and 
to  receive  half  of  the  proceeds  during  any 
two  years  of  such  term  which  he  may  select, 
is  not  invalid  in  respect  to  the  interest  given 
in  such  crops  as  a  mortgage  of  a  thing  hav- 
ing no  potential  existence,  since  the  con- 
tract is  executed  by  the  setting  out  and  de- 
livery of  title  to  the  trees,  and  the  crops 
are  the  subject  of  sale  or  mortgage  in  the 
same  manner  as  crops  to  be  raised  from 
seeds  already  planted.  Dickej'  v.  Waldo,  97 
Mich.  255,  56  N.  W.  608,  23:  449 

b.  Illegal  by  Express  Provision. 

Remedy  in  Case  of,  see  infra,  608-615. 

Illegalitv  in  Acquiring  Note,  see  Bills  and 
Notes,  182,  195. 

Validity  of  Note  in  Hands  of  Bona  Fide 
Holder,  see  Bills  and  Notes,  212. 

Validity  of  Deputy  Sheriff's  Bond,  see 
Bonds,  70. 

Illegal  Cqntract  with  Ticket  Broker  to  Al- 
low Cut  Rates,  see  Commerce,  43. 

As  to  Transportation  Rates,  see  Commerce, 
54. 

Constitutionality  of  Statute  Restricting 
Right  to  Contract,  see  Constitutional 
Law,  II.  b,  4,  b,  2. 

As  to  Voting  Corporate  Stock,  see  Corpora- 
tions, 657. 

Contracts  of  Unauthorized  Foreign  Corpora- 
tion, see  Corporations,  856-860. 

Estoppel  by,  see  Estoppel,  109. 

Mortgagor's  Agreement  to  Paj'  Taxes,  see 
Mortgage,  37. 

Right  to  Maintain  Action  on,  see  Partner- 
ship,  136,   137. 

Validity  of  Sunday  Contracts,  see  Sunday, 
IV. 

See  also  supra,  303a,  372,  infra,  506;  Bills 
and  Notes,  108. 

374.  Transactions  in  violation  of  law  can- 


not be  made  the  foundation  of  a  valid  con- 
tract. Buckley  v.  Humason,  50  Minn.  195, 
52  N.  W.  385,  16:  423 

375.  All  contracts  made  in  violation  of  a 
penal  statute  are  as  absolutely  void  as  if 
the  law  in  so  many  words  declared  that 
they  should  be  void.  Youngblood  v.  Bir- 
mingham Trust  &  S.  Co.  95  Ala.  521,  12  So. 
579,  20:  58 

376.  To  the  general  rule  that  an  act  in 
violation  of  the  statute  forbidding  it  is 
void,  there  is  an  exception  when  the  statute 
is  for  the  protection  of  the  public  revenue 
and  does  not  make  the  act  itself  void,  and 
the  act  is  not  malum  in  se  or  detrimental 
to  good  morals.  Vermont  Loan  &  T.  Co.  v. 
Hoffman,  5  Idaho/  376,  49  Pac.  314, 

37:  509 

377.  A  contract  by  a  vendor  of  patent 
rights,  in  violation  of  a  statute  to  prevent , 
and  punish  fraud  in  the  sale  of  such  rights, 
is  void  as  between  the  parties.  Mason  v. 
McLeod,  57  Kan.  105,  45  Pac.  76,  41:  548 
Violation  of  illegal  statute. 

378.  Where  a  statute  peremptorily  re- 
quires certain  stipulations  or  agreements 
to  be  inserted  in  a  contract,  and  the  same 
are,  by  force  of  such  statute  and  because  of 
its  provisions,  inserted  by  the  contracting 
parties  in  their  contract,  the  obligatory  and 
binding  force  of  such  stipulations  and  agree- 
ments so  inserted  depends  upon  the  validity 
of  the  statute  requiring  their  insertion;  and 
where  such  statute  is  itself  unconstitution- 
al, such  stipulations  and  agreements,  al- 
though incorporated  in  the  contract,  are  in 
law  without  any  obligatory  or  binding  force 
upon  the  parties  to  said  contract.  Cleveland 
V.  Clements  Bros.  Constr.  Co.  67  Ohio  St. 
197,  65  N.  E.  885,  59:  775 
Prohibited  possession  of  game. 

379.  A  contract  for  the  "cold  storage"  of 
game  during  the  "closed  season,"  to  be 
withdrawn  during  the  open  season  when  the 
game  could  be  lawfully  disposed  of,  is  void 
under  Mo.  Rev.  Stat.  1889,  §  3902,  making 
it  a  misdemeanor  to  have  such  game  in 
possession  during  the  closed  season.  Hag-' 
l^erty  v.  St.  Louis  Ice  Mfg.  &  S.  Co.  143  Mo. 
238,  44  S.  W.  1114,  40:  151 
Stock  subscription. 

380.  A  contract  for  the  sale  of  a  portion 
of  a  subscriber's  interest  in  stock  which  he 
subscribed  for  with  the  understanding  that 
he  should  have  $5  of  stock  for  $1  of  sub- 
scription is  illegal  and  void,  under  Ala. 
Stat.  1875,  art.  14,  §  6,  providing  that  no 
corporation  shall  issue  stock  except  for 
money,  labor  done,  or  money  or  property 
actually  received,  and  all  fictitious  increase 
of  stock  or  indebtedness  shall  be  void. 
Williams  v.  Evans,  87  Ala.  725,  6  So.  702, 

6:  218 
Excessive  mill  toll. 

381.  A  contract  to  pay  greater  toll  for 
grinding  at  4  public  mill  than  that  fixed 
by  statute  is  invalid  and  constitutes  no  de- 
fense for  taking  excessive  tolls.  State  v. 
Edwards,  86  Me.  102,  29  Atl.  947,  25:  504 
Not  to  rent  to  Chinaman. 

382.  A  covenant  not  to  rent  property  to  a 


CONTRACTS,  III.  b. 


691 


Chinaman  is  void  as  against  public  policy, 
as  violating  U.  S.  Const.  14th  Amend.,  pro- 
viding for  equal  protection  of  the  laws, 
and  as  an  infraction  of  the  treaty  with 
China  guaranteeing  to  Chinamen  in  the 
United  States  all  the  rights,  privileges,  and 
immunities  accorded  to  citizens  and  sub- 
jects of  the  most  favored  nation.  Gandolfo 
V.  Hartman,  49  Fed.  181,  16:277 

Hours  of  labor. 

See  also  infra,  612,  613.  • 

383.  An  employee  cannot  waive  the  legisla- 
tive protection  created  for  him  by  the  police 
power  of  the  state,  limiting  hours  of  labor. 
Short  V.  Bullion  B.  &  C.  Min.  Co.  20  Utah, 
•20,   57   Pac.   720,  45:  603 

Release  of  claim  for  injury. 
Validity  of  Statute  Avoiding  Cpntract  for, 
see  Constitutional  Law,  705.  ' 

384.  An  agreement  by  a  railroad  employee 
that  the  acceptance  of  benefits  from  a  relief 
fund  shall  operate  as  a  release  of  all  claims 
against  the  railroad  company  is  void,  under 
the  employer's  liability  act  of  1893,  although 
the  release  is  onlv  conditional.  Pittsburgh, 
C.  C.  &  St.  L.  R.  Co.  v.  Montgomery,  152 
Ind.  1,  49  N.  E.  582,  69:  875 

385.  A  contract  by  an  employee  of  a 
railroad  company  with  a  relief  association 
to  which  both  employer  and  employed  con- 
tribute, for  the  benefit  of  the  employees  in 
rase  of  sickness  or  death,  whereby  it  is 
provided  that  the  acceptance  of  relief  from 
the  relief  fund  shall  have  the  effect  to  re- 
lease the  employer  from  liability  for  dam- 
ages, is  not  within  the  prohibition  of  Ohio 
act  April  2,  1890,  against  any  contract  to 
surrender  or  waive  any  right  to  damages 
against  a  railroad  company  for  personal  in- 
jury or  death,  or,  in  case  that  right  is  as- 
serted, to  surrender  or  waive  any  other 
right,  as  this  gives  the  employee  the  right 
to  elect  which  form  of  recompense  he  will 
demand.  Pittsburg,  C.  C.  &  St.  L.  R.  Co. 
V.  Cox,  55  Ohio  St.  497,  45  N.  E.  641, 

35:  507 

386.  The  release  of  the  liability  of  a  rail- 
road company  by  an  employee's  election  to 
accept  the  benefits  of  a  relief  fund  in  lieu 
of  his  right  of  action  for  damages  is  not 
prohibited  by  S.  C.  Const.  1895,  art.  9,  §  15, 
giving  such  employees  the  same  rights  and 
remedies  allowed  to  persons  who  are  not 
employees  in  certain  cases,  and  providing 
that  any  waiver  of  the  benefit  of  that  sec- 
tion shall  be  null  and  void.  Johnson  v. 
Charleston  &  S.  R.  Co.  55  S.  C.  152,  32  S.  E. 
2,  33  S.  E.  174,  44:  645 

387.  A  contract  that  a  railroad  company 
shall  be  relieved  of  liability  for  the  injury 
or  death  of  an  employee  by  the  acceptance 
of  benefits  from  a  relief  fund  which  the 
railroad  company  helps  to  provide,  but  leav- 
ing the  employee  or  those  entitled  to  main- 
tain an  action  for  his  death  the  option  of 
choosing  the  benefits  of  the  relief  fund  or 
bringing  an  action  against  the  company,  does 
not  violate  Ind.  Acts  1893,  chap.  130,  p.  294, 
§  5,  prohibiting  contracts  to  relieve  rail- 
road companies  from  liability  to  employees. 


Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Moore, 
152  Ind.  345,  53  N.  E.  290,  419,         44:  638 
Services  of  unlicensed  persons. 
Validating  by  Subsequent  Statute,  see  Con- 
stitutional Law,  123. 
See  also  supra,  82. 
For  Editorial  Notes,  see  infra,  VITI.  §  25. 

388.  Where  a  statute  or  an  ordinance, 
duly  authorized  and  enacted,  makes  a  par- 
ticular business  unlawful  for  unlicensed 
persons,  any  contract  made  in  such  business 
by  one  not  authorized  is  void.  Buckley  v. 
Humason,  50  Minn.  195,  52  K  W.  385, 

16:  423 

389.  A  person  violating  a  valid  city  ordi- 
nance which  makes  it  unlawful  for  any 
person  to  exercise  within  the  city  the  busi- 
ness of  a  real-estate  broker  without  a  li- 
cense can  recover  no ,  commissions  for  his 
services.  Id. 

390.  Real-estate  agents  doing  business 
without  a  license,  in  violation  of  an  ordi- 
nance, cannot  recover  commissions  on  a  sale 
of  land  negotiated  by  them,  notwithstand- 
ing a  subsequent  repeal  of  the  ordinance, 
without  a  saving  clause,  pending  the  suit. 
Denning  v.  Yount,  62  Kan.  217,  61  Pac. 
803,  50:  103 

391.  The  recovery  of  commissions  by  a 
broker  is  not  prevented  by  failure  to  pro- 
cure a  license  under  an  ordinance  imposing 
a  penalty  for  such  failure,  where  the  ob- 
ject of  the  ordinance  is  simply  to  enforce 
payment  of  a  tax.  Fairlv  v.  Wappoo  Mills, 
44  S.  C.  227,  22  S.  E.  108,"  29:  215 

392.  A  contract  to  pay  a  fee  for  services 
rendered  by  a  physician  who  is  not  licensed 
is  void  in  its  inception,  where  a  statute 
prohibits  him  from  practising  as  a  physi- 
cian for  fee  or  reward.  Puckett  v.  Alexan- 
der, 102  N".  C.  95,  8  S.  E.  767,  3:  43 

393.  An  innholder  who  has  no  license  can- 
not recover  for  board  and  lodging  furnished 
by.  him  in  such  inn,  under  Me.  Rev.  Stat, 
chap.  27,  declaring  that  "no  person  shall  be 
a  common  innholder  or  victualer  without  a 
license,  under  a  penalty  of  not  more  than 
$50,"  and  requiring  a  license  fee  of  only  $1, 
since  the  purpose  of  the  statute  is  to  pro- 
tect the  public,  and  not  merely  to  obtain 
revenue.  Randall  v.  Tuell,  89  Me.  443,  36 
Atl.  910,  38:  143 

394.  A  contract  for  the  services  of  an  un- 
licensed stallion  is  invalid  so  that  no  re- 
covery thereon  can  be  had,  under  Ky.  Stat, 
chap.  108,  §  4201,  making  the  owner  liable 
to  indictment  and  fine  for  failure  to  procure 
the  license.  Smith  v.  Robertson,  106  Ky. 
472,  50  S.  W.  852,  45:  510 
Sales  of  liquor. 

See  also  infra,  445,  639. 

395.  An  agreement  to  return  or  pay  for 
beer  barrels,  kegs,  and  cases  in  which  beer 
is  shipped  contrary  to  law,  is  a  part  of 
the  illegal  contract,  which  cannot  be  en- 
forced, when  these  articles  were  sent  mere- 
ly for  the  purpose  of  completing  the  sale  of 
the  beer.  Gipps  Brew.  Co.  v.  De  France,  91 
Iowa,  108,  58  N.  W.  1087,  28:  386 

390.  The  purchase  price  of  beer  cannot  be 
recovered  where  it  was  sold  under  the  ar- 
rangement contemplating  its  resale  by  the 


692 


CONTRACTS,  III.  c,  1. 


purchaser  in  violation  of  law  under  pretense 
of  an  agency  for  conducting  a  bottling  de- 
partment under  the  license  of  the  seller. 
Storz  V.  Finkelstein,  46  Neb.  577,  65  N.  W. 
195,  30:  644 

397.  No  recovery  can  be  had  for  intoxi- 
cating liquors  shipped  into  Iowa  to  phar- 
macists with  the  knowledge  that  he  is  for- 
bidden by  the  state  law  from  selling  them 
as  a  beverage,  where  the  seller,  in  order  to 
aid  him  in  evading  the  statute,  forwards 
some  of  the  liquors  in  concealed  packages  to 
a  fictitious  assignee,  and  furnishes  false  in- 
voices to  aid  him  in  the  commission  of 
perjury  as  well  as  in  other  violations  of 
the  law,  although  the  sale  of  liquors  in  it- 
self would  be  legal.  Kohn  v.  Milcher,  43 
Fed.  641,  10:  439 

398.  Under  the  New  Hampshire  statute 
making  it  an  offense  for  a  person  to  solicit 
or  take  orders  for  spirituous  liquors  in  the 
state,  to  be  delivered  at  a  place  without  the 
state,  knowing,  or  having  reasonable  cause 
to  believe,  that  if  so  delivered  they  will  be 
transported  into  the  state  and  sold  in  vio- 
lation of  law,  an  order  for  liquor,  taken 
within  the  state  by  a  traveling  salesman,  to 
be  filled  by  his  employer  outside  the  state, 
will  make  the  contract  of  sale  void,  and 
prevent  a  recovery  thereon,  where  the 
liquors  are  to  be  .sold  in  violation  of  law. 
Lang  V.  Lynch,  38  Fed.  489,  4:  831 

399.  A  contract  for  the  sale  of  intoxicat- 
ing liquor  to  a  nonresident,  with  the  view 
to  its  being  resold  by  him  contrary  to  the 
laws  of  his  own  state,  is  void,  although  the 
violation  of  that  law  was  not  the  controlling 
inducement  to  the  sale,  which  was  made  pri- 
marily for  the  monev  received.  Graves  v. 
Johnson,  156  Mass.  211.  30  N.  E.  818, 

15:  834 

400.  A  clerk  and  bartender  hired  for  one 
entire  consideration,  by  a  dealer  in  groceries 
and  intoxicating  liquors,  the  sa:le  of  the 
latter  being  illegal,  cannot  recover  anything 
for  his  service,  even  upon  quantum  meruit 
for  services  in  the  grocery  part  of  the  store. 
Sullivan  v.  Hergan,  17  R.  I.  109,  20  N.  E. 
232,  9:  110 

c.  Public  Policy. 

1.  In  General. 

As  to  Consideration  for  Subscription,  see 
supra,   48-53. 

Proceedings  and  Remedy  in  Case  of,  see 
infra,  III.  g,  2. 

As  to  Contracts  in  Restraint  of  Trade,  see 
infra.  III.  e. 

Review  of  Referee's  Finding  as  to,  see  Ap- 
peal and  Error,  817. 

Of  Provision  for  Submitting  all  DifTerences 
to  Arbitration,  see  Arbitration,  5-7. 

Assignment  of  Right  of  Action  for  Fraud, 
see  Assignment,  3. 

Assignment  of  Future  Wages,  see  Assign- 
ment, 18,  19. 

By-laws  of  Association,  see  Associations,  2, 
13-15. 

With  Attorney  for  Contingent  Fee,  see  At- 
torneys, 65-69. 


As    Ground    For    Disbarring    Attorney,    see 

Attorneys,  20. 
Provision    for   Attorneys'    Fees,    see   Attor- 
neys' Fees,  9-15. 
Not  to  Bid  at  Auction,  see  Auctions,  5,  6. 
As  to  Bills  and  Notes,  see  Bills  and  Notes, 

22-25. 
Excessive     Bond     to     Savings     Bank,     see 

Bonds,  6. 
Contract     Guaranteeing     Honesty     of     Em- 
ployees, see  Bonds,  24. 

dhampertous  Contracts,   see  Champerty. 

Provision  for  Chattel  Mortgagee  Taking 
Possession  on  Nonpayment,  see  Chattel 
Mortgage,  91. 

Prohibition  against  Limitation  of  Carrier's 
Liability  as  Interference  with  Com- 
merce, see  Commerce,  62-68. 

Effect  of  Public  Policy  on  Enforcement  of 
Contract  of  Other  State,  see  Conflict  of 
Laws,  19-23. 

Combination  to  Injure  Another's  Business, 
see  Conspiracy,  I.  c. 

Contract  for  Free  Pass,  .see  Corporations, 
175. 

Contracts  of  Corporate  Officers  in  Their 
Own  Interests,  see  Corporations,  IV. 
g,  4. 

Validity  of  Contract  for  Voting  Trust,  see 
Corporations,  656-660. 

Against  Handling  Grain  on  Land  Conveyed, 
see  Covenant,  27. 

Separation  Agreement,  see  Divorce  and  Sep- 
aration, VIII.  b.  ■ 

Estoppel  by,  see  Estoppel,  109,  267. 

Insuring  Life  in  Favor  of  One  Without  In- 
surable Interest,  see  Insurance,  144,  145, 
698. 

Insurance  against  Capital  Conviction,  see  In- 
surance, 185. 

Condition  against  Mortgaging  Insured  Prop- 
erty, see  Insurance,  382. 

Provision  that  Insurance  Agent  shall  be 
Agent  of  Applicant,  see  Insurance,  530. 

Provision  Against  Insurance  Inuring  to 
Benefit  of  Carrier,  see  Insurance,  1257. 

Insuring  Carrier  against  Liability  for  In- 
jury to  Passenger,  see  Insurance,  1355, 
1356. 

Provision  as  to  Incontestability  of  Policy, 
see  Insurance,  573,  574. 

Limiting  Time  for  Suit  on  Policy,  see  In- 
surance, 1307,  1308. 

Contract  to  Assume  Risk  of  Unsafe  Place, 
see  Master  and  Servant,  315. 

Illegal  Partnerships,  see  Partnership,  103- 
107. 

Right  to  Maintain  Action  on,  see  Partner- 
ship, 137. 

Pleading  as  to.  see  Pleading,  68,  69. 

Necessity  of  Pleading  Invalidity,  see  Plead- 
ing, 491-493. 

Lease  of  Timber  on  Public  Land,  see  Public 
Lands,  8. 

Sale  of  Interest  in  Public  Land,  see  Public 
Lands,  16. 

Conditions  Subsequent  in  Conveyances,  see 
Real   Property,   7-10. 

Contract  to  Pay  for  Chattel  before  Passing 
of  Title,  see  Sale,  1. 

As  to  Place  for  Settling  Disputes,  see  Ship- 
ping, 7. 


CONTRACTS,  III.  c.  1. 


693 


Purchasing  Abutter's  Consent  to  Construc- 
tion of  Street  Railroad,  see  Street  Rail- 
ways, 29. 

Contracts  made  on  Sunday,  see  Sunday,  IV. 

Contract  by  Telephone  Company  Discrimi- 
nating in  Favor  of  Patentee,  see  Tele- 
phones, 18. 

Instructions  as  to,  see  Trial,  790. 

See  also  supra,  403. 

For  Editorial  Notes,  see  infra,  VIII,  §§  21, 
31-38. 

401.  Contracts  which  are  void  at  com- 
mon law  because  they  are  against  public 
policy,  like  contracts  which  are  prohibited 
by  statute,  are  illegal  as  well  as  void.  Har- 
vey V.  Merrill,  150  Mass.  1,  22  N.  E.  49, 

5:  200 

402.  Contracts  in  which  a  cof]joration,  in 
consideration  of  stated  payments  made  to 
it,  makes  promises  which  are  the  main  in- 
ducement to  such  contract,  and  are  impossi- 
ble to  perform,  are  unlawful,  being  against 
public  policy.  State  ex  rel.  Prout  v.  Ne- 
braska Home  Co.  66  Neb.  349.  92  N.  W. 
703,  60:  448 

403.  A  contract  by  which  a  person  in 
whose  name  an  action  is  brought  and  to 
whom  it  belongs  attempts  to  transfer  his 
control  over  it  so  as  to  restrict  him  from 
compromising  or  settling  the  claim  is  not 
valid.  North  Chicago  Street  R.  Co.  v.  Ack- 
ley,  171  111.  100,  49  N.  E.  222,  44:  177 
By  guardian. 

404.  A  contract  by  a  guardian  to  sell  his 
ward's  land  in  advance  of  legal  authority 
is  contrary  to  public  policy  and  void.  Le 
Roy  V.  Jacoboskv,  136  N.  C.  443,  48  S.  E. 
796,  ■  67:  977 
By  defaulting  bank  officer. 

405.  The  contract  of  a  defaulting  bank 
officer  to  furnish  collateral  security  for  his 
indorsement  upon  paper  previously  sold  to 
the  bank  by  him,  so  as  to  replenish  the  as- 
sets of  the  bank  and  enable  it  to  resume 
business,  is  not  illegal;  and  after  such  se- 
curities have  been  furnished  and  the  bank 
has  resumed  business,  the  person  furnishing 
such  securities  at  the  request  of  such  de- 
faulting officer,  with  knowledge  of  the  use 
to  be  made  thereof  by  him,  cannot  be  heard 
to  say  that  there  was  no  consideration  for 
furnishing  the  same.  Tecumseh  Nat.  Bank 
v.  Chamberlain  Bkg.  House,  63  Neb.  163, 
88  N.  W.  186,  57:  811 
As  to  investments. 

400.  Contracts  of  investment  security, 
debentures,  or  certificates,  which  cannot  rea- 
sonably be  expected  to  accumulate  ajeserve 
fund  equal  to  the  stipulated  endowment  val- 
ues within  the  stated  period  without  aid 
froip  lapses  or  appropriations  from  pre- 
miums on  new  business,  are  fraudulent, 
contrary  to  public  policy,  and  unlawful. 
State  ex  rel.  Sheets  v.  Interstate  Savings 
Investment  Co.  64  Ohio  St.  283,  60  N.  E.  220, 

52:  530 

407.  The  contract  of  an  investment  asso- 
ciation by  which  it  agrees  to  pay  each  cer- 
tificate holder  $500  at  the  end  of  fourteen 
years,   in   consideration   of   the '  payment   of 


$4  as  a  membership  fee  and  monthly  in- 
stalments of  $1.25  until  the  end  of  the 
period,  the  $4  being  given  to  the  agent  pro- 
curing the  contract  and  25  cents  of  each 
instalment  being  set  apart  for  expenses, 
leaving  only  $1  a  month  for  investment, 
while  it  is  provided  that  failure  to  pay  any 
instalment  shall  subject  a  member  to  a  fine 
of  50  cents  a  month  and  that  upon  failure 
to  pay  for  six  months  all  paj'ments  made 
shall  be  forfeited, — cannot  be  said,  as  mat- 
ter of  law,  to  be  incapable  of  performance 
by  legitimate  methods,  or  to  be  so  de- 
pendent on  forfeitures  and  lapses  as  to  be 
contrary  to  public*  policy,  where  the  com- 
pany is  authorized  by  its  charter  to  carry 
on  many  lines  of  business,  including  the 
right  to  deal  in  stocks,  bonds,  etc.,  loan 
money,  and  purchase,  improve,  and  sell 
propertj^  both  real  and  personal.  Equitable 
Loan  &  Security  Co.  v.  Waring,  117  Ga. 
599,  44  S.  E.   320,  62:  93 

408.  The  mere  fact  that  an  enterprise 
depends  for  its  success,  to  some  extent,  on 
forfeitures  and  lapses,  is  not  alone  sufficient 
to  render  the  scheme  unlawful.  Id. 
To  indemnify  carrier  ap^ainst  loss  for  injury 

to  employee  of  indemnifier. 

409.  A  contract  by  which  a  news  company 
indemnifies  a  railroad  company  against  any 
loss  sustained  by  reason  of  any  injury  to 
employees  of  the  news  company,  who  are 
carried  by  the  railroad  company,  is  not 
against  public  policy.  Kansas  City,  M.  &  B. 
R.  Co.  V.  Southern  Railway  News  Co.  151 
Mo.  373,  52  S.  W.  205,  45:  380 
With  employee. 

See  also  infra,  460-468. 

For  Editorial  Notes,  see  infra,  VIII.  §  31. 

410.  Public  policy  does  not  require  the 
avoidance  of  a  contract  by  an  employee  not 
to  disclose  secrets  which  must  necessarily 
be  imparted  to  him  by  his  employer  to  ena- 
ble him  to  do  his  work.  O.  &  W.  Thum  Co. 
V.  Tloczynski,  114  Mich.  149,  72  N.  W.  140, 

38:  200 

411.  A  contract  by  one  about  to  enter  an- 
other's employ  for  the  purpose  of  improving 
machinery  used  in  the  latter's  business,  that 
the  employer  shall  have  the  benefit  of  all 
inventions  made  by  him  during  the  term 
of  the  employment,  and  that,  in  case  pat- 
ents shall  not  be  applied  for,  the  employee 
shall  keep  the  information  forever  secret, 
is  not  unconscionable,  nor  against  public 
policy,  and  may  be  enforced.  Thibodeau  v. 
Hildreth,  60  C.  C.  A.  78,  124  Fed.  892, 

63:  480 

412.  If  a  provision  in  a  contract  for  the 
employment  of  railroad  engineers  by  which 
the  employer  undertakes  to  reinstate  an 
engineer  discharged  from  service  wheuevcr, 
upon  his  complaint,  specified  persons  shall 
on  investigation  decide  that  the  discharg'? 
was  unjust,  is  void  as  against  public  policy, 
such  provision  does  not  render  invalid  a 
further  provision  in  the  contract  that  the 
engineers  shall  not  be  discharged  without 
just  cause.  St.  Louis,  I.  M.  &  S.  R.  Co.  v, 
Mathews,  64  Ark.  398,  42  S.  W.  902, 

39:  467 


694 


CONTRACTS,  III.  c,  1. 


With  attorney. 

See  also  infra,  451.  486,  632. 

413.  A  party  employed  to  act  as  agent  in 
securing  the  services  of  attorneys  cannot 
contract  to  receive  a  portion  of  the  foes 
himself  as  assistant  attorney.  He  cannot 
be  both  principal  and  agent,  for  such  a 
transaction  is  against  public  policv  and 
void.    Re  Evans,  22  Utah,  366.  62  Pac.'913, 

53:  052 

414.  A  clause  in  a  contract  between  at- 
torney and  client  for  compensation  for  con- 
ducting litigation,  that  the  client  shall  not 
settle  the  controversy  without  the  attorney's 
consent,  is  void  because  against  public 
policy.  Dayis  v.  Webber.  66  Ark.  lao.  40  S. 
W.  822,  45:  196 

415.  A  contract  between  an  attorney  and 
one  who  is  not  an  attorney,  to  procure  the 
former  employment  by  a  litigant,  in  con- 
sideration of  a  part  of  whatever  remunera- 
tion the  attorney  receives  for  hi-  .services 
from  the  litigant,  is  contrary  to  public  pol- 
icy and  void.  Alpers  v.  Hunt.  86  Cal.  78, 
24  Pac.  846,  9:  483 

416.  A  contract  between  an  attorney  at 
law  and  one  who  is  not  such  an  attorney, 
by  which  the  latter  j<grees  to  procure  the 
employment  of  the  former  by  third  personn 
for  the  prosecution  of  suits  in  courts  of 
record,  and  also  to  assist  in  looking  after 
and  procuring  witnesses  whose  testimony  is 
to  be  used  in  the  cases,  ir.  consideration  of 
a  share  of  the  fees  which  the  attorney  shall 
receive  for  his  services,  is  against  public 
policy,  and  void.  Langdon  v.  Conlin,  67 
Neb.  243,  93  K  W.  389,  60:  429 

417.  A  contract  between  a  wife  and  her 
solicitor,  providing  that  for  his  services  in 
procuring  an  allowance  of  alimony  and  en- 
forcing its  payment  he  shall  receive  a  share 
of  the  alimony  recovered,  is  void  not  only 
because  a  claim  for  alimony  is  incapable  of 
assignment,  but  also  because  the  contract 
is  in  contravention  of  public  policy.  Lvnde 
V.  Lynde  (N.  J.  Err.  &  App.)  64  X.  J.'  Eq. 
736,  52  Atl.  694,  58:  471 

418.  A  contract  between  attorneys  and 
other  persons  who  are  engaged  in  the  illegal 
sale  of  intoxicating  liquors,  to  defend  all 
cases  brought  against  the  latter  for  viola- 
tion of  prohibitory  liquor  laws,  in  considera- 
tion of  a  certain  monthly  compensation,  is 
against  public  policy  and  void.  Bowman  v. 
Phillips,  41  Kan.  364,  21  Pac.  230.  .T:  631 
Affecting  marriage  relation. 

Provisions  in  Will,  see  Wills.  254,  .303-310. 

Sec  also  infra.  633;  Trusts,  28. 

For  Editorial  Notes,  see  infra,  VIII.  §  31. 

419.  A  claim  for  services  rendered  to  a 
man  in  procuring  for  him  a  wife  is  not 
valid;  it  being  against  public  policy  to  allow 
marriage  brokerage.  AntclifT  v.  .Tune,  81 
Mich.  477,  45  X.  W.  1019,  10:  621 

420.  A  contract  by  a  man  to  support  a 
woman  who  is  about  to  marry  his  son,  in 
ease  the  son  fails  to  do  so,  is  not  contrary 
to  public  policy.  Wright  v.  Wright,  114 
Iowa,  748,  87  N.  W.  709,  55:  261 

421.  A  contract  to  marry  is  not  void  as 
in  restraint  of  marriage  because  it  provides 
that  the  marriage  shall  take  place  after  the 


death  of  the  divorced  wife  of  one  of  the  par 
ties.  Brown  v.  Odill,  104  Tenn.  250,  56  S. 
W.  840,  52:  660 

422.  Public  policy  does  not  condemn  a 
contract  to  marry  after  the  death  of  the 
divorced  wife  of  one  of  the  parties,  when 
there  is  no  legal  impediment  in  the  way  of 
an  immediate  marriage,  but  the  agreement 
for  delay  is  due  to  religious  scruples.        Id. 

423.  A  contract  between  husband  and 
wife  to  secure  a  divorce  a  vinculo  matri- 
monii is  contrary  to  public  policy,  and  void. 
Palmer  v.  Palmer.  26  Utah,  31,  72  Pac.  3, 

61:  641 

424.  An  oral  agreement  between  husband 
and  wife  to  separate  and  live  apart,  upon 
consideration  that  he  support  her  and  the 
children  and  absolutely  assign  to  her  insur- 
ance policies  on  his  life,  is  void  as  against 
public  policy,  so  that  she  cannot  enforce  the 
assignment  of  the  policies.  Baum  v.  Baum. 
109  Wis.  47,  85  X.  W.  122.  53:  650 

425.  A  trust  deed  for  the  benefit  of 
grantor's  wife,  executed  as  security  for  a 
note  given  upon  her  promise  to  abandon  her 
real  ground  of  divorce,  and  sue  on  another 
ground  in  which  she  does  not  believe,  is 
without  valid  consideration,  and  void  as 
against  public  policy.  Stokes  v.  Anderson, 
118  Ind.  533.  21  X.  E.  331.  4:  313 
To  affect  bid. 

See  also  infra,  634,  635.  848-856. 

426.  A  contract  to  sell  the  bid  or  interest 
of  a  successful  bidder  at  a  judicial  sale,  be- 
fore its  confirmation,  for  more  than  the 
amoimt  bid,  is  contrary  to  public  policy,  un- 
less the  advance  on  the  bid  inures  to  the 
benefit  of  the  parties  to  the  suit.  Camp  v. 
Bruce,  96  Va.  521,  31  S.  E.  901,  43:  146 

427.  An  agreement  by  which  one  person, 
under  promise  of  benefit,  agrees  with  an- 
other to  withdraw  an  offer  or  bid  for  prop- 
erty of  the  state  offered  for  sale,  so  as  to 
enable  the  latter  by  the  removal  of  competi- 
tion to  buy  it  cheaper  than  he  otherwise 
could,  is  void  as  being  against  public  policy. 
Boyle  V.  Adams.  50  Minn.  255,  52  N.  W. 
860,  17:  96 

428.  It  is  immaterial  whether  the  prop- 
erty' is  offered  at  public  auction  or  by  in- 
viting bids  or  proposals  for  its  purchase  at 
private  sale.  Id. 

429.  An  agreement  between  bidders  for 
public  work  to  pool  their  interests,  pro- 
cure the  contract  at  the  highest  price  possi- 
ble, each  having  knowledge  of  the  other's 
bid  for  that  purpose,  and  divide  the  profits, 
while  representing  themselves  as  rival  bid- 
ders, is  void,  so  that  in  case  the  contract- 
is  procured  in  the  name  of  one  of  them, 
the  work  done,  and  the  money  paid  to  him, 
the  others  will  have  no  standing  in  court 
to  compel  an  accounting.  Hoffman  v.  Mc- 
Mullen,  28  C.  C.  A.  178,  48  U.  S.  App.  596, 
83  Fed.  372,  45:  410 

430.  A  contract  between  the  owners  of 
two  newspapers  belonging  to  the  same 
political  party,  only  one  of  which  could  ob- 
tain a  contract  for  public  printing  under  a 
statute  requiring  certain  state  officers  to 
make  the  selection  having  reference  to  the 
larger  circulation,  by  which,  in  order  to  pre- 


CONTRACTS.  III.  c.  1. 


695 


vent  rivalry,  they  agree  that  for  two  years, 
in  case  of  ine  designation  of  either  paper, 
the  profits  shall  be  equally  divided,  and  that 
each  paper  shall  be  alternately  selected  for 
that  purpose,  is  contrary  to  public  policy 
and  void  as  contravening  the  statute  requir- 
ing the  selection  to  be  made  by  the  state 
officers,  and  the  policy  of  the  statute,  which 
requires  publication  ito  be  made  in  the  one 
having  the  larger  circulation.  Brooks  v. 
Cooper  (N.  J.  Err.  &  App.)  50  N.  J.  Eq.  761, 
26  Atl.  978,  21:  617 

Against  will  contest 

431.  A  covenant  not  to  contest  the  will  of 
a  relative  may  be  given  effect  as  a  release 
of  the  contingent  right  to  make  such  con- 
test and  enforced,  when  fairly  obtained  and 
for  an  adequate  compensation.  Re  Garce- 
lon's  Estate.  104  Cal.  570,  38  Pac.  414, 

\         32:  595 
As  to  procuring  codicil. 

432.  An  abandonment  of  effort  to  obtain 
a  codicil  to  a  will  cannot  constitute  a  valua- 
ble consideration  for  the  assignment  of  an 
expected  interest  in  the  estate,  as  it  is 
against  public  policy  to  recognize  such  im- 
portunity as  the  legitimate  basis  of  a  con- 
tract right.  Re  Lennig's  Estate,  182  Pa.  485, 
38  Atl.- 466,  38:  378 
As  to  custody  of  infant. 

Effect  of  Contract  on  Right  to  Custody,  see 

Infants,  31,  32,  35. 
For  Editorial  Notes,  see  infra,  VIII.  §  31. 

433.  A  contract  made  by  a  mother  on  her 
death  bed,  with  the  assent  of  the  father,  by 
which  the  custody  of  their  children  is  given 
to  relatives  of  the  motuer,  is  null  and  void 
on  grounds  of  public  policy.  Hibbette  v. 
Bains,  78  Miss.  695,  29  So.  80,  51 ;  839 

434.  A  contract  by  a  granafather  to  pay 
a  certain  sum  to  his  son's  wife  living  apart 
from  her  husband,  and  a  further  sum  to  his 
grandson  on  his  coming  of  age,  if  she  will 
allow  him  to  take  the  boy  into  his  family 
until  he  is  of  age,  and  educate  him,  giving 
her  the  privilege  of  visiting  the  child  and 
having  him  at  her  home  whenever  conveni- 
ent,— is  not  against  public  policy  as  an  at- 
tempt to  shift  the  burden  of  parental  obli- 
gation by  mere  sale  of  the  child.  Enders 
V.  Enders,  164  Pa.  266,  30  Atl.  129,  27:  56 
As  to  expectancy. 

See  also  supra,  432. 

435.  An  agreement  b.y  an  applicant  for 
admission  to  an  old  folks'  home  to  deliver 
to  it  any  and  all  property  which  he  may, 
"by  any  devise,  legacy,  or  otherwise,  become 
the  owner  of,"  in  consideration  of  mainte- 
nance during  life,  is  void  as  against  public 
policy.  Baltimore  Humane  Impartial  Soc. 
V.  Pierce,  100  Md.  520,  60  Atl.  277,  70:  485 
As  to  payment  by  promisor's  executor. 

436.  A  voluntary  covenant  that  the  oblig- 
or's executors  shall  pay,  within  a  certain 
time  after  her  death,  a  certain  sum  to  the 
obligee,  is  not  void  on  grounds  of  public 
policy.  Krell  v.  Codman.  154  Mass.  454.  28 
N.  E.  578,  14:  860 
As  to  effect  of  borrowing  elsewhere  to  pay 

mortgage. 

437.  A  provision  in  a  note  secured  by 
mortgage,  that   the   right   of  the   maker  to 


make  payment  at  any  time  is  waived,  pro- 
viding the  money  tendered  is  borrowed  in 
whole  or  in  part  elsewhere,  is  contrary  to 
public  policy,  and  void.  Union  C.  L.  Ins.  Co. 
V.  Champlin.  11  Okla.  184,  65  Pac.  836, 

.  55:  109 

438.  A  provision  in  a  note  that  a  condi- 
tion requiring  the  holder  to  receive  partial 
payments  before  maturity  cannot  be  en- 
forced if  the  money  tendered  is  borrowed  in 
whole  or  in  part  elsewhere,  is  not  invalid  as 
against  public  policy.  Sheneberger  v.  Union 
C.  L.  Ins.  Co.  114  Iowa,  578,  87  X.  W.  493, 

55:  269 
As  to  evidence. 
For  Editorial  Notes,  see  infra,  VIII.  §  34. 

439.  A  contract  to  procure  for  a  consid- 
eration testimony  that  will  win  a  lawsuit 
is  void  as  against  public  policy,  and  as  tend- 
ing to  impede  the  administration  of  justice. 
Quirk  V.  Muller,  14  Mont.  467,  36  Pac. 
1077,  25:  87 

440.  A  contract  to  procure  evidence  from 
an  absconding  insolvent  deotor  and  others 
to  show  that  a  transfer  of  his  property  was 
without  consideration,  and  that  tne  trans- 
feree knew  of  his  insolvency,  which  evidence 
is  to  be  used  for  recovering  tne  debtor's 
property  by  a  creditor's  bill,  a  share  of  the 
proceeds  of  which  is  to  be  given  as  com- 
pensation for  such  services,— is  void  on 
grounds  of  public  policy  because  it  tends  to 
subornation  of  perjury.  Goodrich  v.  Tenney, 
144  111.  422,  33  N.  E.  44,  19:  371 

441.  One  who  furnished  testimony  under 
a  contract  for  a  share  of  the  proceeds  of 
litigation,  which  was  void  as  against  public 
policy,  cannot  recover  any  part  of  such 
proceeds  if  his  only  claim  thereto  arises  out 
of  such  contract.  Id. 

442.  A  stipulation  between  an  employee 
and  a  guaranty  insurance  company  which 
insures  his  employer  against  the  employee's 
fraud  or  dishonesty,  to  the  effect  that  a 
voucher  or  other  evidence  of  payment  by 
the  insurer  to  the  employer  shall  be  con- 
clusive evidence  against  the  employee  as  to 
the  fact  and  extent  of  nis  liability  to  the  in- 
surer, is  void  as  against  public  policy  so  far 
as  it  attempts  to  make  such  evidence  con- 
clusive, altnough  it  may  be  sustained  to  the 
extent  of  making  it  prima  facie  evidence. 
Fidelitv  &  C  Co.  v.  Eickhoff,  63  Minn.  170, 
65  N.  W.  351,  •  30:  586 
As  to  statute  of  limitations. 

Waiver  of  Defense  of,  by  Corporate  Officers, 
see  Corporations,  233. 

443.  An  agreement  not  to  plead  the 
statute  of  limitations  is  not  void  as  against 
public  policy.  Wells,  F.  &  Co.  v.  Enright, 
127  Cal.  669,  60  Pac.  439,  49:  647 
Creating  injury  to  health. 

444.  A  contract  for  the  care  of  a  woman 
in  the  advanced  stages  of  leprosy,  by  a 
laborer  and  his  wife,  who  are  unskilled  peo- 
ple and  have  no  authority  to  restrain-  her 
from  wandering  away,  and  who  have  several 
small  children  in  their  family,  is  an  unrea- 
sonable one  the  execution  of  which  may  be 
restrained  because  of  its  tendency  to  cause 
a  dissemination  of  the  disease.     Baltimore 


696 


CONTRACTS,  III.  c,  9. 


V.    Fairfield    Improv.    Co.    87    Md.    352,    39 
Atl.   1081,  40:  494 

Sale  of  liquor. 
See  also  supra,  418. 

445.  Plaintiff,  a  corporation,  by  its  agent, 
sold  and  furnished  bottled  beer  to  the  de- 
fendant, the  keeper  of  a  house  of  prostitu- 
tion, as  the  agent  well  knew.  While  he  had 
no  knowledge  of  just  what  was  to  be  done 
with  the  beer,  the  agent  supposed  at  the 
time  it  was  furnished  that  it  was  to  be  used 
or  sold  in  the  brothel.  No  other  facts  ap- 
pearing, it  is  held  that  plaintiff  can  recover 
a  balance  claimed  to  be  due  from  defendant 
for  and  on  account  of  said  sale.  Anheuser- 
Busch  Brewing  Asso.  v.  Mason,  44  Minn. 
318,  46  X.  W.  5.58,  9:  506 
Lease  for  immoral  purpose. 

446.  Tiie  fact  that  tenements  leased  for 
immoral  purposes  are  located  in  a  section  of 
the  city  which  is  mainly  given  up  to  such 
business  without  interference  by  the  police 
authorities  does  not  make  a  partnership 
formed  to  lease  premises  for  such  business 
any  the  less  unlawful.  Chateau  v.  Singla, 
114  Cal.  91,  45  Pac.  1015,  33:  750 

447.  A  partnership  to  carry  on  the  busi- 
ness of  letting  furnished  apartment  for  im- 
moral purposes  is  based  upon  an  illegal 
contract.  Id. 
To  compound  crime. 

Vriliditv   of  Note  Given   for,   see   Bills   and 

Notes,  23,  210. 
See  also  infra.  641,  642. 

448.  An  obligation  given  for  the  settle- 
ment of  a  claim  for  embezzlement  by  an 
agent  of  a  private  person,  although  the  pur- 
pose of  the  transaction  is  to  prevent  a 
prosecution  of  the  embezzler,  is  not  void  on 
grounds  of  public  policy.  Loud  v.  Hamil- 
ton  (Tenn.  Ch.)  51  S.  W.  140,  45:  400 

449.  J*  contract,  the  consideration  of 
which,  in  whole  or  in  part,  is  the  suppres- 
sion of  a  criminal  prosecution,  is  without 
any  legal  efficacy  either  as  a  cause  of  action 
or  as  as  a  defense  to  an  action  not  foimded 
on  or  arising  out  of  the  agreement.  Spring- 
field F.  &  M.  Ins.  Co.  V.  Hull,  51  Ohio  St. 
270.  37  N.  E.  1116,  25:  37 

450.  The  corruoting  tendency  of  a  con- 
trac  to  prevent  the  finding  of  an  indictment 
renders  it  void,  as  matter  of  law,  and  its 
validity  cannot  depend  on  the  question 
whether  or  no.t  any  acts  were  done  in  the 
execution  of  the  agreement  which  would 
contravene  public  morals  or  subvert  the 
administration  of  justice.  Weber  v.  Shav, 
.56  Ohio  St.  116,  46  N.  E.  377,  37:  230 

451.  A  contract  by  attorneys  at  law  to 
render  services  to  prevent  the  finding  of  an 
indictment  against  one  accused  or  suspected 
of  crime  is  illegal  and  void  without  respbct 
to  their  belief  as  to  his  guilt:  and  there- 
fore they  cannot  recover  on  a  contract  for 
such  services.  Id. 

2.  Contracts  against  Liability. 

By  Cold  Storage  Company,  see  Bailment,  18. 

Bv  Carrier,  see  Carriers,  II.  a,  10,  f :  II.  a. 

12,  e;  II.  b,  7;  Conflict  of  Laws^  91    00. 


By  Telegraph  Company,  see  Telegraphs,  77  - 

81,  83. 
Following  State  Decision  as  to,  see  Courts, 

543. 
See  also  supra,  371. 

For  libel. 

452.  An  agreement  by  an  author  to  in- 
demnify his  publisher  for  any  costs  and 
damages  by  reason  of  the  publication  is  not 
invalid,  on  the  ground  that  an  unlawful 
publication  is  intended,  where  it  does  not 
appear  that  there  was  any  intention  on  the 
part  of  either  to  write  or  publish  anything 
libelous.  C.  F.  Jewett  Pub.  Co.  v.  Butler, 
159  Mass.  517,  34  N.  E.  1087.  22:  253 
For  negligent  fires. 

453.  A  stipulation  against  liability  for 
negligence  of  a  railroad  company  setting  fire 
to  buildings  erected  on  its  right  of  way 
under  a  lease  may  be  included  in  the  lease 
without  violating  public  policy.  Hartford 
F.  Ins.  Co.  V.  Chicago,  M.  &  St.  P.  R.  Co.  70 
Fed.  201,  36  U.  S.  App.  152,  17  C.  C.  A.  62, 

30:  193 

454.  The  provision  that  carriers  cannot  ex- 
empt themselves  from  liability  by  contract, 
found  in  Iowa  Code,  §  1308,  does  not  apply 
to  a  contract  as  to  buildings  on  the  railroad 
right  of  way,  although  built  for  the  promo- 
tion of  the  carrier's  business.  Griswold  v. 
Illinois  C.  R.  Co.  90  Iowa,  265,  57  N.  W.  843, 

24:  647 

455.  The  public  has  no  interest  in  the 
question  whether  a  railroad  company  or  a 
lessee  who  erects  buildings  on  the  right  of 
way  shall  bear  the  loss  resulting  from  negli- 
gence of  the  railroad  company's  servants,  so 
as  to  raise  any  question  of  policy  in  respect 
to  a  contract  exempting  the  company  from 
such  liability.  Id. 

450.  A  stipulation  against  liability  for 
damage  by  fire  communicated  by  railroad 
trains,  either  accidentally  or  negligently,  is 
not  against  public  policy  when  made  in  a 
lease  at  a  nominal  rent  of  a  portion  of  the 
railroad  right  of  way  for  an  elevator,  ware- 
house, and  other  buildings  for  use  in  con- 
nection with  and  for  the  promotion  of  the 
railroad  company's  business ;  and  a  statute 
making  the  railroad  company  absolutely 
liable  for  all  damages  caused  by  negligent 
fires  does  not  change  this  rule.  ,    Id. 

457.  A  provision  in  a  lease  of  a  warehouse 
owned  by  a  railroad  company,  that  such 
company  shall  not  be  responsible  for  any 
damage  caused  bj'  fire,  is  not  void  as  against 
public  policy  on  the  ground  that  the  prop- 
erty of  the  public  will  thereby  be  in  danger. 
Stephens  v.  Southern  P.  Co.  109  Cal.  86,  41 
Pac.  783,  29:  751 

458.  A  contract  by  one  permitted  to  place 
a  building  on  a  railroad  right  of  way  that 
the  company  shall  be  released  from  all  lia- 
bility for  injury  to  the  building  by  fire  from 
locomotives  is  valid,  and  will  relieve  the 
company  from  liability,  either  to  the  owner 
of  the  building  or  its  insurer,  for  injury  by 
lire  set  out,  even  through  negligence,  un- 
less it  is  wilfvil  or  wanton.  Greenwich  Ins. 
Co.  V.  Louisville  &  N.  R.  Co.  112  Kv.  598,  66 
S.  W.  411,  o6:  477 

450.  An   agreement    by   one   permitted   to 


CONTRACTS.  III.  c,  3. 


697 


place  a  structure  on  a  railroad  ripht  of  way, 
as  part  of  the  consideration  therefor,  to 
indemnify  the  railroad  company  against  lia- 
bility^ for  injury  to  the  said  property  while 
upon  or  about  the  premises,  due  to  the  care- 
lessness of  the  railroad  company  or  its  serv- 
ants, is  not  against  public  policy.  Osqrood  v. 
Central  Vt.  R.  Co.  77  Vt.  .334,  60  Atl.  137, 

70:  930 
Release  of  claim  for  injuries. 
Bv  Landlord  against  Liability  for  Injury  by 

Coal  Hole,  see  Highways,  331. 
See  also  supra,  384-387;  Railroad  Relief  As- 
sociations, 2;   Release,  17,  19-21. 

460.  A  contract  by  which  an  employee  as- 
sumes all  liability  for  injuries  by  reason  of 
the  employer's  negligence  or  otherwise  is  not 
against  public  policy.  Pittsburg.  C.  C.  & 
St.  L.  R.  Co.  y.  Mahoney.  148  Tnd,  196,  46  N". 
E.  917,  '40:  101 

461.  A  contract  requiring  a  railroad  em- 
ployee to  elect  between  a  right  of  action 
against  his  employer  for  personal  injuries 
and  a  right  to  benefits  in  a  railroad  relief 
association  is  not  contrary  to  public  policy. 
Pittsburg,  C.  C.  &  St.  L.*R.  Co.  v.  Cox,  55 
Ohio  St.  497,  45  X.  E.  641.  35:507 

462.  A  stipulation  in  a  benefit  certificate 
of  a  railroad  relief  association,  providing 
that,  where  members  of  that  department 
elect  to  accept  the  benefits  provided  by  the 
certificate,  they  must  waive  all  right  of  ac- 
tion against  the  railroad  company  for  in- 
jury received,  is  valid.  Oyster  v.  Burline- 
ton  Relief  Dept.  65  "NTeb.  789.  91  K  W. 
699,  59:291 

463.  A  provision  that  any  claim  upon  the 
relief  fwnd  provided  bv  assessments  on  rail- 
road employees,  aided  by  contributions  of 
the  railroad  company  employing  them,  on 
account  of  an  injury  to  an  employee,  shall 
be  barred  by  an  action  for  damages  against 
the  railroad  company  if  prosecuted  to  judg- 
ment or  compromise,  and  that,  on  the  other 
hand,  the  payment  of  such  claim  shall  pre- 
clude any  such  action  against  the  company, 
— does  not  violate  piiblic  policy  or  make  an 
unlawful  restriction  on  railroad  companies' 
liability,  since  it  leaves  the  lifrht  to  elect 
between  the  claim  and  the  right  of  action 
for  damages.  Donald  v.  Chicago.  B.  &  Q.  R. 
Co.  93  Iowa,  284,  61  X.  W.  971,  33:  492 

464.  A  contract  by  a  father  releasing  a 
railway  company  from  all  liability  for  in- 
juries to  a  minor  son  while  in  the  com- 
pany's employ  is  valid  and  binding  to  the 
extent  of  exempting  the  emnloyer  from  lia- 
bility for  negligent  acts  of  itself  and  its 
servants  which  are  not  criminal.  Xew  v. 
Southern  R.  Co.  116  Oa.  l.-)2.  42  S.  E.-.395, 

59:  115 

465.  A  contract  by  which  the  next  of  kin 
of  one  about  to  be  employed  by  a  railroad 
company  releases  the  company  from  liabil- 
ity to  him  for  damages  resulting  from  nesrli- 
gent  injuries  to  the  employee  is  void  as  con- 
trary to  public  policy,  whore  a  statute  pro- 
vides for  such  liability.  Tarbell  v.  Rutlnnd 
R.  Co.  73  Vt.  347.  51  Atl.  6.  .56:  656 

466.  A  contract  by  a  railroad  employee 
which  gives  him  his  election,  after  an  in- 
jury, to  take  the  benefits  of  a  relief  fund 


to  which  he  as  well  as  the  railroad  com- 
pany has  contributed,  or  to  sue  for  damages 
in  a  court  of  law,  and  providing  that  his  ac- 
ceptance of  such  benefits  will  release  the 
employer  from  liability, — is  not  contrary  to 
public  policy,  Eckman  v.  Chicago,  B.  &  Q. 
R.  Co.  169  111.  312,  48  N.  E.  496,  38:  750 

467.  A  contract  by  which  the  acceptance 
of  benefits  from  a  relief  organization  by  a 
railroad  employee  who  has  been  injured 
will  operate  to  release  the  railroad  company 
from  liability  to  damages,  but  which*  gives 
him  the  option  to  accept  such  benefits  or  to 
decline  them  and  retain  his  right  of  action 
against  the  railroad  company,  is  not  against 
public  policy.  Johnson  v.  Charleston  &  S. 
R.  Co.  55  S.  C.  152,  32  S.  E.  2,  33  S.  E. 
174,  44:  645 

468.  The  by-law  of  a  railroad  relief  as- 
sociation which  requires  its  members  to  re- 
lease the  railroad  company  from  any  claim 
for  damages  before  applying  to  the  associa- 
tion for  relief,  is  not  against  public  policy. 
Owens  v.  Baltimore  &  O.  R.  Co.  35  Fed.  715, 

1:75 

3.  As  to  Corporations  and  Associations. 

As   to   Prior  Right   of  Corporation   to   Pur- 
chase Stock,  see  Corporations,  432. 

469.  A  contract  by  a  stockholder  who  was 
president  of  a  corporation,  to  pay  one  half 
of  all  liability  which  might  be  fixed  upon  it 
as  the  result  of  certain  suits,  which  is  made 
as  part  of  the  transfer  of  all  its  shares  to 
another  corporation  which  buys  them  for  the 
purpose  of  controlling  it,  is  unlawful  and 
cannot  be  enforced,  although  the  purchasing 
corjwration  has  fully  executed  the  contract 
on  its  part.  Buckeye  Marble  &  F.  Co.  v. 
Harvey,  92  Tenn.  115,  20  S.  W.  427,  18:  252 
To  control  newspaper. 

See  also  infra,  629. 

470.  A  contract  giving  the  right  to  man- 
age a  newspaper  and  control  its  policy  for 
five  years,  to  a  person  employed  as  editor 
and  manager,  is  not  contrary  to  public 
policy  when  it  is  part  of  an  agreement  by 
which  he  purchases  a  large  quantity  of 
stock  from  the  controlling  shareholder,  and 
the  agreement  is  approved  and  ratified  by 
all  the  stockholders.  Jones  v.  Williams,  139 
Mo.  1,  39  S.  W.  486.  40  S.  W.  353,  37:  682 
Railroads. 

As  to  Railroad  Relief  Association,  see  supra, 

384-387,  461-463,  466-468, 
See  also  supra,  453-459,  infra,  490. 

471.  Specific  performance  will  not  be  en- 
forced of  an  agreement  to  convey  an  interest 
in  land  to  one  for  services  in  securing  the 
location  of  a  railroad  depot  thereon,  where 
he  has  agreed  to  divide  with  certain  oflScials 
of  the  road  all  money  received  by  him  from 
sales  of  land  during  the  construction  of  the 
road,  since  its  tendency  is  to  induce  the  of- 
ficers of  the  corporation  to  disregard  their 
duties  to  it,  and  it  is  therefore  against  pub- 
lic policy.  Reed  v.  Johnston,  27  Wash.  42, 
67  Pac.  381,  57:  404 

472.  Contracts  undertaking  to  obligate  a 
railroad  company  to  establish  its  depot  ex- 


CONTRACTS.  III.  c,  4. 


clusively  at  a  particular  point  are  void  as 
against  public  policy,  since  the  company 
must  be  free  to  establish  and  re-establish 
its  depots  wherever  the  public  welfare  or 
wants  of  the  public  may  require.  Florida 
C.  &  P.  R.  Co.  V.  State  ex  rel.  Tavares,  31 
Fla.  482,   13  So.   103,  20:  419 

Street  railway. 

473.  Purchasing  the  consent  of  a  property 
owner  to  the  laying  down  of  a  street  rail- 
way in  a  street  upon  which  his  property 
abutSf  for  money  or  other  consideration  in- 
uring to  his  exclusive  benefit,  is  illegal 
where  the  consent  of  owners  representing 
more  than  one  half  of  the  frontage  is  a 
necessary  condition  of  permission  to  lay 
tracks  in  the  street.  Doane  v.  Cliicago  City 
R.  Co.  160  111.  22,  45  X.  E.  507,  35:  588 

474.  An  agreement  to  sign  a  petition  as 
one  of  the  owners  of  more  than  one  half  of 
the  frontage  on  a  street,  whose  consent  is 
necessary  to  the  granting  of  permission  by 
the  common  council  for  the  laying  of  a 
street  railway  track  therein,  is  an  agree- 
ment to  influence  the  common  council,  and 
for  that  reason  unlawful  when  made  for  a 
consideration  moving  to  the  property  owner. 

Id. 

475.  A  bond  calling  for  payment  of  a  cer- 
tain sum  by  a  street  railway  company  to  the 
owner  of  property  abutting  on  a  street,  in 
case  a  second  track  is  laid  without  his  con- 
sent, is  invalid  when  it  is  given  to  obtain 
his  consent  as  one  of  the  owners  of  more 
than  one  half  the  property  fronting  on  the 
street,  which  is  a  condition  precedent  to  per- 
mission by  the  authorities  for  the  laying  of 
such  track.  Id. 

476.  The  agreement  of  a  street  railway 
company  not  to  lay  a  second  track  without 
the  consent  of  an  owner  of  property  abut- 
ting upon  the  street  is  invalid  as  an  at- 
tempt by  the  company  to  bind  itself  against 
what  the  public  interest  may  require  in  the 
future.  Id. 
Water  companies. 

477.  An  agreement  with  the  promoter  of 
a  corporation  to  construct  village  water- 
works not  to  organize  another  corporation 
for  that  purpose  or  to  ask  or  receive  a  fran- 
chise from  the  town  authorities  for  that 
purpose,  is  not  against  public  policv.  Oakes 
v.  Cattaraugus  Water  Co.  143  N.  Y.  430,  38 
X.  E.  461,  26:  544 

478.  A  contract  between  corporations  or- 
ganized to  distribute  and  furnish  water  to 
consumers  in  a  county  and  city,  one  of 
which  owns  a  supply  of  water  and  a  pipe 
line  ending  at  the  city  limits,  and  the  other 
a  distributing  plant  within  the  city,  for  co- 
operation in  supplying  water  to  the  city 
and  providing  a  method  of  determining  the 
price  of  water,  is  not  in  violation  of  public 
policy  as  a  monopoly  for  its  sale,  since  the 
California  Constitution  reserves  to  munici- 
pal corporations  the  power  of  regulating 
water  rates.  San  Diego  Water  Co.  v.  San 
Diego  Flume  Co.  108  Cal.  549.  45  Pac.  495, 

29:  839 
4.  Affecting  OfTicial   Action. 

Criminal  Liability  as  to.  see  Bribery. 


See  also  infra,  498,  499,  637. 
For  Editorial  Notes,  see  infra.  VIIT.  §§  ?'» 
33. 

479.  A  contract  to  give  a  percentage  of  a 
claim  against  the  government  for  services  m 
collecting  it  is  void  as  against  public  policy, 
where  the  services  in  fact  consisted  largely 
in  procuring  legislation  from  Congress  by 
which  the  Postoffice  Department  should  be 
required  to  pay  the  claim.  Spalding  v. 
Ewing,  149  Pa.  375,  24  Atl.  219,  15:  727 

480.  The  legislature  may  authorize  the 
employment  of  an  agent  to  prosecute  claims 
on  behalf  of  the  state,  which  require  the 
procurement  of  legislation,  for  a  fee  con- 
tingent on  his  success.  Davis  v.  Com.  164 
Mass.  241,  41  N.  E.  292.  30:  743 
Passage  of  statute. 

For  Editorial  Notes,  see  infra,  VTH.  §  33. 

481.  All  agreements  which  tend  to  intro- 
duce personal  influence  and  solicitation  as 
elements  in  procuring  and  influencing  legis- 
lative action,  or  action  by  any  department 
of  the  government,  are  against  public  policy, 
as  contrary  to  sound  morals  and  tending  to 
ineflficiency  in  the  public  service.  Houlton 
V.  Xichol,  93  Wis.  393,  67  N.  W.  715,    33:  166 

482.  A  contract  by  which  a  pei-son  agrees 
to  draft  a  bill,  have  it  introduced  in  the 
legislature,  explain  it  to,  and  make  argu- 
ments in  its  favor  before,  committees  of 
the  legislature,  and  do  all  things  needful 
and  proper  to  secure  its  passage,  such  party 
to  receive  no  compensation  unless  the  pas- 
sage of  the  bill  (an  appropriation  act)  is 
procured;  if  successful,  the  fees  not  fixed, 
but  to  be  liberal, — is  vicious,  illegal,  and 
void,  and,  in  the  event  of  the  passage  of 
the  bill,  there  can  be  no  recovery  of  a  fee 
in  a  suit  upon  the  contract,  nor  as  upon  an 
implied  contract,  nor  a  quantum  meruit  for 
the  services  performed.  Richardson  v. 
Scotts  Bluff  County,  59  Neb.  400,  81  N.  W. 
309.  48:  294 
Passage   of    ordinance;    opening   or   paving 

street. 
See  also  supra,  474. 

483.  Tlie  contract  of  employment  to  pro- 
cure the  passage  of  ordinances  for  paving 
streets  and  alleys,  at  a  compensation  which,  , 
except  for  a  monthly  allowance,  is  contin- 
gent upon  success  in  obtaining  the  necessary 
ordinances  and  in  securing  the  paving  con- 
tracts consequent  thereon, — is  void  on 
grounds  of  public  policv. .  Crichfield  v. 
Bermuda  Asphalt  Pav.  Co"!  174  111.  466,  51 
N.  E.  552.  42:347 

484.  No  part  of  a  contract  of  employment 
to  promote  the  business  of  a  paving  com- 
pany is  valid  when  it  contemplates,  as  part 
of  the  duties,  the  procuring  of  the  passage 
of  ordinances  for  paving,  and  the  compensa- 
tion, above  a  certain  monthly  allowance,  is 
contingent  upon  success  in  procuring  them. 

485.  A  promise  by  a  citizen  to  pay  part 
of  the  expense  of  opening  a  street,  upon 
which  an  ordinance  to  open  it  is  obtained,  is 
not  opposed  to  public  policy,  and  the  ordi- 
nance will  not  be  set  aside  on  that  groimd. 
State  ex  rel.  North  Orange  Bapt.  Church  v. 


CONTRACTS,  m.  c.  5. 


699 


Orange  (N.  J.  Sup.)»54  N.  J.  L.  Ill,  22  Atl. 
1004,  14:  62 

486.  A  contract  to  pay  a  lawyer  a  certain 
sum  to  appear  before  the  street  commission- 
ers, and  advocate  the  laying  out  of  a  street 
through  land  of  the  promisor,  and  to  get  as 
much  as  he  can  as  damages  therefor,  is  not 
against  public  policy,  but  it  is  a  valid  con- 
tract which  will  not  be  invalidated  by  evi- 
dence tending  to  show  the  subsequent  use 
by  the  lawyer  of  his  personal  influence  as 
chairman  of  the  city  committee  of  a  polit- 
ical party  in  fulfilling  his  part  of  the  con- 
tract. Barrv  v.  Capen.  151  Mass.  99.  23  X. 
E.  735,  '  6:  808 
Appointment,  nomination,  or  election  to  of- 
fice. 

See  also  infra,  636. 

For  Editorial  Notes,  see  infra,  VlJI.  §  32. 

487.  An  agreement  for  expenses  and  com- 
pensation for  services  to  influence  or  pro- 
cure appointment  to  office  is  void.  Basket 
v.  Moss,  115  N.  C.  448,  20  S.  E.  733.    48:  842 

488.  The  promise  to  pay  interest  on  bal- 
ances in  favor  of  the  city,  made  by  a  banker 
to  induce  his  election  by  the  council  as  city 
treasurer,  is  against  public  policy  and  is 
incapable  of  enforcement.  Wilkes-Barre  v. 
Rockafellow,  171  Pa.  177,  33  Atl. '269. 

30:  393 

489.  A  contract  by  the  publisher  of  a 
newspaper  to  use  it  in  influencing  the  choice 
of  delegates  and  the  action  of  a  convention 
in  favor  of  a  certain  candidate  for  public 
office  is  void  as  contrary  to  public  policy. 
Livingston  v.  Page,  74  Vt.  356,  52  Atl.  965, 

.59:  336 
As  to  public  lands. 

490.  A  contract  by  raib'oad  companies  to 
refrain  from  any  effort  to  obtain  a  grant  of 
public  lands  from  the  legislature,  and  to  aid 
another  company  to  procure  it  by  all  reason- 
able and  proper  assistance,  in  consideration 
of  a  share  of  the  grant  obtained  by  the  lat- 
ter, is  void  as  against  public  policv.  Chip- 
pewa Vallev  &  S.  R.  Co.  v.  Chicago.  St.  P. 
M.  &  O.  R.'Co.  75  Wis.  224,  44  N.  W.  17, 

6:  601 

491.  A  contract  for  the  presentation,  be- 
fore the  Secretary  of  the  Interior,  of  the 
legal  status  of  certain  public  lands,  with  a 
view  of  having  them  thrown  open  to  settle- 
ment under  existing  laws,  not  as  a  favor, 
but  as  a  right  to  which  all  persons  simil- 
arly situated  were  entitled,  without  any  at- 
tempt to  procure  legislation,  is  not  against 
public  policy  when  it  does  not  appear  that 
any  act  illegal  per  se  or  of  corrupt  tendency 
was  contemplated.  Houlton  v.  Xichol,  93 
Wis.  393,  67  N.  W.  715,  33:  166 

492.  A  contract  for  services  in  procuring 
legislation  which  forfeits  to  the  government 
timber  lands  previously  included  in  a  rail- 
road grant,  and  gives  the  preference  in  pur- 
chase thereof  to  those  who  have  already 
settled  thereon,  whereby  the  other  party  to 
the  contract  is  enabled  to  buy  ver}'^  valuable 
government  land  for  the  paltry  sum  of 
$1.25  or  $2.50  per  acre,  is  void  as  against 
public  policv.  Houlton  v.  Dunn.  fiO  Minn. 
26,  61  N.  W.  898,  30:  737 


To  give  bonus  for  public  enterprise. 

493.  The  inducement  to  order  and  hold  an 
election  and  to  issue  the  bonds  of  a  school 
district  for  the  purpose  of  building  a  library, 
which  is  made  by  the  promise  of  a  private 
individual  to  pay  the  expense  of  buying  a 
site  for  the  building,  is  not  contrary  to  pub- 
lic policy  when  the  board  has  previously 
exercised  its  judgment  and  determined  tht 
desirability  of  a  new  library  building,  but 
is  unable  to  proceed  with  the  enterprise  un- 
til money  is  provided  to  purchase  a  site. 
Kansas  City  School  Dist.  v.  Stocking,  138 
Mo.  672,  40  S.  W.  650,  37:  406 
Granting  of  pardon. 

494.  An  agreement  that,  for  a  pecuniary 
consideration,  a  person  will  withdraw  oppo- 
sition to  the  granting  of  a  pardon,  and  will, 
by  solicitation  and  the  exercise  of  personal 
influence,  endeavor  to  induce  the  pardoning 
authority  to  grant  a  pardon  to  one  who  has 
been  convicted  of  a  crime,  contravenes  pub- 
lic policy  and  is  void.  Deering  &  Co.  v.  Cun- 
ningham, 63  Kan.  174,  65  Pac.  263,      54:  410 

.    5.  Contracts   of   Public   Officers. 

For  Contracts  Affecting  Official  Action,  see 
supra,  in.  c,  4. 

Contracting  for  Period  Beyond  Term  of  Of- 
fice, see  Municipal  Corporations,  310- 
319. 

495.  An  agreement  by  a  city  not  to  op- 
pose a  railroad  company's  closing  certain 
of  its  streets  crossed  by  the  latter  at  grade, 
in  consideration  of  the  making  of  compensa- 
tion solely  to  private  individuals,  is  void  as 
against  public  policy.  New  Haven  v.  New 
Haven  &  D.  R.  Co.  62  Conn.  262,  25  Atl. 
310.  18:256 

■  496.  An  offer  to  print  a  delinquent  tax 
list  for  less  than  the  statutory  rate,  and 
the  tender  of  a  bond  for  the  faithful  per- 
formance of  the  work,  on  which  a  contract 
is  entered  into  with  the  county  clerk,  who 
has  no  power  to  make  such  contract,  will 
not  prevent  recovery  for  the  full  statutory 
rate.  Hoffman  v.  Chippewa  County,  77  Wis. 
214,  45  N.  W..  1083,  8:  781 

497.  Public  policy  will  not  avoid  a  con- 
tract by  a  municip>ality  to  pay  for  a  rea- 
sonable length  of  time  a  portion  of  the 
ta.xes  assessed  against  a  water  company,  as 
part  consideration  for  a  water  supply,  mere- 
ly because  the  gross  and  annual  amounts  to 
be  paid  are  imcertain  and  the  return  to  be 
received  is  also  uncertain,  where  the  con- 
tract is  limited  to  the  taxes  assessed  on  the 
property  owned  by  the  company  at  the  time 
of  its  execution,  and  on  pipe  lines,  hydrants, 
and  fixtures  thereafter  laid.  Maine  Water 
Co.  V.  Watei-ville,  93  'Me.  586.  45  Atl.  830, 

49:  294 
To  influence  action. 

498.  Giving  anything  of  value  to  a  com- 
missioner of  a  board  of  education  to  in- 
fluence him  in  the  discharge  of  a  legal  duty 
renders  void  any  contract  to  the  validity 
of  which  his  vote  or  assent  was  necessary. 
Honaker  v.  Pocatalico  Dist.  Bd.  of  Edu. 
42  W.  Va.  170,  24  S.  E.  544,  32:  413 


TfiO 


CONTRACTS,  III.  c,  5. 


41)9.  The  giving  to  a  school  commissioner 
of  money  to  pay  him  for  his  time  and  re- 
imburse him  for  loss  sustained  by  closing 
his  place  of  business,  in  order  to  induce 
him  to  attend  a  meeting  of  the  board  of 
education  to  pass  upon  a  proposed  contract 
for  the  purchase  of  charts  for  the  schools, 
will  make  void  a  contract  therefor,  when 
there  was  not  a  majority  in  favor  of  it  with- 
out his  vote.  '  Id. 
As  to  compensation. 

500.  A  contract  by  a  municipal  corpora- 
tion to  pay  a  public  ofBcer  u  percentage 
compensation,  in  addition  to,  or  instead  of. 
that  prescribed  by  law,  is  against  public 
policy  and  void.  Adams  County  v.  IJunter, 
78  Iowa,  328,  43  X.  W.  208,      ^  6:  615 

Lancaster  County  v.  Fulton,  128  Pa.  48, 
18  Atl.  384,  "^  5:  436 

501.  A  contract  to  pay  a  city  attorney 
any  compensation  other  than  his  salary,  for 
conducting  litigation  on  behalf  of  the  city 
which  is  within  the  scope  of  his  official 
duties,  is  void  by  public  policj'  as  well  as 
bv  the  provisions  of  Cal.  Const,  art.  11,  §  9. 
Buck  V.  Eureka,  109  Cal.  504,  42  Pac.  243, 

30:  409 

502.  For  services  rendered  after  the  ex- 
piration of  his  term  of  office  under  a  void 
contract  to  pay  an  officer  extra  compensa- 
tion he  cannot  have  any  recovery  under  the 
contract,  though  he  may  be  entitled  to 
some  compensation  upon  an  implied  con- 
tract. Id. 

503.  The  employment  of  a  county  clerk  to 
index  the  records  of  his  office,  under  a  spe- 
cial contract  which  is  required  by  "indispen- 
sable public  necessity"  within  the  meaning 
of  Ind.  Rev.  Stat..  §  5766,  prohibiting  al- 
lowances, directly  or  indirectly,  to  such  of- 
ficers except  in  cases  of  indispensable  pub- 
lic necessity,  is  not  invalid  because  of  the 
official  relations  of  the  clerk  with  the  county 
board,  or  on  the  ground  that  it  was  extra 
compensation  for  his  official  services.  Tip- 
pecanoe County  V.  Mitchell.  131  Ind.  370, 
30  X.  E.  409,  *  15:  520 
Sale  of  ofiSce. 

.504.  A  sale  by  a  postmaster  of  his  post- 
office  cabinet,  furniture,  and  fixtures,  in- 
cluding his  agreement  to  resign  his  office 
and  recommend  the  appointment  of  the 
other  party  as  successor,  is  void  as  against 
public  policy.  Edwards  v.  Randle.  63  Ark. 
318,  38  S.  W.  .343.  .36:  174 

■505.  A  contract  by  which  a  sheriff  and  tax 
collector  turns  over  the  tax  list  to  another 
person,  with  an  agreement  to  give  him  a 
certain  commission  for  collecting  the  taxes 
for  certain  years,  is  illegal  and  void  on 
grounds  of  public  policy,  under  X.  C.  Code. 
§  2084,  wliich  provides  "tliat  the  slieriff  shall 
not  "let  to  farm  in  any  manner  liis  county 
or  any  part  of  it."  Cansler  v.  Penland,  125 
X.  C.'57S,  34  S.  E.  683.  48:441 

506.  A  contract  between  a  sheriff  and  his 
deputy,  providing  that  the  deputy  shall  col- 
lect all  the  taxes,  with  sHcht  exceptions,  and 
do  all  the  work  of  the  sheriff's  office  in  one 
district,  and  attend  the  sessions  of  the 
court  during  stated  portions  of  the  time 
each    year,   and    that   he   shall    have  all   the 


fees  and  commissions  allowed  by  law  upon 
the  work  done  by  him,  and  shall  pay  the 
sheriff  $100  a  year, — violates  W.  Va.  Code, 
chap.  7,  S  5,  prohibiting  the  sale  or  farm- 
ing, in  whole  or  in  part,  of  any  office  un- 
der the  laws  of  the  state.  White  v.  Cook, 
51  W.  Va.  201,  41  S.  E.  410,  57:417 

507.  An  agreement  by  a  retiring  city 
treasurer  with  a  friend,  that  the  latter  shall 
run  for  the  office  of  city  treasurer  and  the 
former  for  mayor,  and  in  case  of  the  elec- 
tion of  both  the  city  treasurer  elect  shall 
be  so  only  nominally,  and  that  the  retiring 
one  shall  act  both  as  mayor  and  treasurer, 
and  shall  receive  and  pay  out  moneys  as 
such  latter  officer,  is  against  public  policy 
and  void, — especially  under  How.  (Mich.) 
Stat.  §  2439,  invalidating  the  election  of  a 
defaulter;  and  a  bond  given  by  such  default- 
er to  the  treasurer  elect,  to  secure  the 
sums  so  held,  is  in  pursuance  of  such  illegal 
agreement,  and  is  void,  and  no  recovery  can 
be  had  thereon.  Cobbs  v.  Hixaon,  75  Mich. 
260,  42  X.  W.  818,  .  4:  682 
Private  interest  of  officer. 

508.  Dealings  between  a  public  officer  and 
himself  as  a  private  citizen,  that  bring  him 
into  collision  with  other  citizens  equally  in- 
terested with  himself  in  the  integrity  and 
impartiality  of  the  officer,  are  against  pub- 
lic policy.  Goodyear  v.  Brown,  155  Pa.  514. 
26  Atl.  665,  20:  838 

509.  A  contract  for  the  erection  of  a 
school  building,  entered  into  with  a  mem- 
ber of  the  building  committee  who  is  also 
a  selectman  of  the  town,  is  not  void  on 
the  ground  of  public  policy,  merely  because 
his  vote  is  necessary  to  authorize  the  con- 
tract. Sylvester  v.  Webb,  179  Mass.  236,  60 
N.  E.  495.  52:  518 

510.  An  officer  cannot  recover  on  an  im- 
plied contract  with  a  municipality  for  ma- 
terials supplied  to  it,  where  the  statutes 
prohibit  him  from  being  "directly  or  indi-« 
rectly  interested  in  any  contract"  with  the 
city,  and  make  a  violation  thereof  a  misde- 
meanor. Berka  v.  Woodward,  125  Cal.  119. 
57  Pac.  777,  45:  420 

511.  A  contract  made  by  a  water  com- 
pany with  a  borough,  under  an  ordinance 
passed  by  a  council  of  which  the  majority 
were  directors  of  the  water  company,  is  ab- 
solutely void,  under  Pa.  act  March  31,  1860, 
§  66  (P.  L.  400),  prohibiting  municipal  of- 
ficers from  being  interested  in  any  contract 
with  the  corporation.  Milford  v.  Milford 
Water  C«.  124  Pa.  610.  17  Atl.  185,     3:  122 

512.  A  contract  for  the  sale  of  property 
to  a  city  through  one  of  its  officers,  who 
receives  a  commission  from  the  other  party 
for  effecting  it,  is  illegal  and  void  both  at 
common  law  and  under  Ohio  Rev.  Stat.  § 
6969.  declaring  it  a  penal  offense  for  anj' 
public  officer,  agent,  servant,  or  employee  to 
be  directly  or  indirectly  interested  in  any 
contract  for  the  purchise  of  any  property 
of  the  state,  county,  or  municipality.  Find- 
lav  V.  Pertz.  31  U."  S.  App.  340,  13  C.  C.  A. 
559.  66  Fed.  427.  29:  188 

513.  The  fact  that  the  mayor  of  a  city  is 
also  the  president  and  a  stockholder  of  a 
gas    company    which    furnishes    gas    to    the 


CONTRACTS,  III.  d. 


701 


city,  not  by  virtue  of  any  contract,  but  by 
requirement  of  law,  when  he  has  no  author- 
ity in  the  matter  of  procuring  the  gas,  does 
not  defeat  the  right  to  enforce  payment 
from  the  city,  although  the  charter  of  the 
city  provides  that  no  officer  shall  be  directly 
or  indirectlj'  interested  in  any  contract, 
work,  or  business,  or  the  sale  of  any  article 
for  which  payment  is  to  be  made  fr^m  the 
city  treasury,  and  that  all  contracts  in  vio- 
lation thereof  shall  be  void.  Capital  Gas 
Co.  V.  Young.  109  Cal.  140.  41  Pac.  869, 

29:463 

514.  A  corporation  is  not  disqualified  to 
bid  for  a  contract  to  be  let  by  the  state 
furnishing  board,  by  reason  of  the  fact  that 
its  business  manager,  who  is  not  a  stock- 
holder or  officer  of  the  company,  and  whose 
salary  or  position  will  not  be  im  any  way 
affected  by  the  contract,  was  a  member  of 
the  legislative  assembly  which  passed  the 
act  providing  for  the  letting  of  such  con- 
tract. State  ex  rel.  Eaves  v.  Rickards,  16 
Mont.  145,  40  Pac.  210.  28:  298 
To  make  arrest. 

515.  The  fact  that  a  justice  of  the  peace 
has  in  reality  no  jurisdiction  of  the  case  will 
not  prevent  a  contract  by  him  to  secure  the 
arrest  of  a  person  against  whom  a  prose- 
cution has  been  instituted  before  him  from 
being  against  public  policy,  where  the  extent 
of  his  compensation  is  contingent  on  the 
recovery  of  property  from  the  defendant. 
Brown  v.  First  Nat."  Bank,  137  Ind.  655,  37 
N.  E.  1.58.    '  24:  206 

516.  A  contract  by  a  justice  of  the  peace 
to  make  an  arrest  for  a  pecuniary  consid- 
eration contingent  on  the  amount  of  prop- 
erty that  may  be  recovered  of  a  person  who 
is  charjred  with  larceny  by  an  affidavit  filed 
with  such  justice  is  void  on  grounds  of  pub- 
lic policy,  even  if  the  proceeding  before  the 
justice  can  be  merely  a  preliminary  exam- 
ination. Id. 

d.  Gambling   and   Wager   Contracts. 

Remedy  in  Case  of,  see  infra,  616-619. 

Recovery  of  Money  Deposited  with  Stake- 
holder, see  Betting,  2. 

Note  Payable  in  Event  of  Election  to  Of- 
fice, see  Bills  and  Notes,  25. 

Invalidity  of  Note  Growing  out  of,  see  Bills 
and  Notes.  26. 

Validity  of  Note  in  Hands  of  Bona  Fide 
Holder,  see  Bills  and  Notes,  212. 

Validity  of  Option  Contract  by  Corporation, 
see  Corporations,  144. 

Necessity  of  Insurable  Interest  in  Life,  see 
Insurance,  II. 

rjamblini-:  Transaction  by  Agent,  see  Prin- 
cipal and  Agent,  61. 

Property  Right  in  Quotations  used  for 
Gambling,  see  Property,  2. 

As  to  Gaming  Generally,  see  Gaming. 

As  to  Lotterv,  see  I.otterv. 

For  Editorial'Notes.  see  infra.  VIII.  §  37. 

517.  Wagers,  being  inconsistent  with  the 
established  interests  of  society  and  in  con- 
flict with  the  morals  of  the  age,  are  void 
as  against  public  policv.  Bernard  v.  Taj'lor, 
23  Or.  416,  31  Pac.  968,  18:  859 


518.  An  agreement  to  satisfy  a  contract 
by  adjustment  of  differences  between  the 
contract  and  the  market  price  is  not  neces- 
sary to  make  an  agreement  void  as  an  op- 
tion contract*,  under  111.  Crim.  Code,  §  130, 
Schneider  v.  Turner.  130  111.  28,  22  N,  E. 
497,  6:  164 

519.  To  make  a  contract  for  the  purchase 
and  sale  of  merchandise  a  wagering  contract 
it  is  sufficient,  whatever  may  be  the  form 
of  the  contract,  that  both  parties  under- 
stand and  intend  that  one  party  shall  not 
be  bound  to  deliver  the  merchandise  and 
the  other  party  to  receive  it  and  pay  the 
price,  but  that  a  settlement  shall  be  made 
by  the  payment  of  the  difference  between 
the  contract  price  and  the  market  price  of 
the  merchandise  at  that  time.  Harvey  v. 
Merrill,  150  Mass.  1,  22  N.  E.  49,  5:  200 

520.  A  guaranty  that  cattle  of  another 
person  will  sell  in  market  for  4  cents  per 
pound,  made  in  consideration  of  the  pay- 
ment of  $30,  and  an  agreement  by  thp  other 
party  to  pay  the  guarantor  any  excess  in 
the  selling  price  above  4  cents  per  pound, 
is  a  gambling  contract.  First  Nat.  Bank  v. 
Carroll.  80  Iowa,  11,  45  N.  W.  304,  8:  275 
Playing  at  cards,  etc. 

521.  An  agreement  between  an  employer 
and  his  employees,  that  winnings  of  the  em- 
ployees at  card  games  played  with  each 
other  shall  be  debited  and  credited  on  the 
respective  accounts  due  the  employees,  is  in- 
valid as  against  public  policy  and  the  stat- 
utes forbidding  gambling,  so  that  the  em- 
ployer cannot  refuse  to  pay  wages  earned, 
on  the  ground  that  the  amount  has  already 
been  paid  to  another  employee  to  whom  it 
ha,s  been  credited  because  of  his  winnings 
from  claimant.  Olson  v.  Sawyer- Goodman 
Co.  110  Wis.  149,  85  N.  W.  640,     ,        53:  648 

522.  A  member  of  a  club  who  shares  in  a 
"take-out"  or  percentage  of  the  winnings  of 
gambling  which  the  club  receives  from 
frames  played  in  it,  and  in  which  he  to  some 
extent  acts  as  manager,  is  such  a  joint 
wrongdoer  with  the  winner  that  he  cannot 
recover  on  a  note  for  money  loaned  by  him 
with  knowledge  that  it  was  to  be  used  in 
such  game.  White  v.  Wilson.  100  Ky.  367, 
38  S.  W.  495.  37:  197 
Purchase  of  grain,  stocks,  etc. 
Speculation  in  Cotton  bv  savings  Bank,  see 

Banks,  346-348. 

Validity  of  Note  in  Hands  of  Bona  Fide 
Purchaser,  see  Bills  and  Notes,  212. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws. 
37-39,  242. 

Sufficiency  of  Proof  of  Intent  Not  to  Re- 
ceive Stock  Certificates,  see  Evidence, 
2287. 

Indictment  for  Selling  Futures,  see  Indict- 
ment, etc.  78,  132. 

Injunction  against  Violation  of  Agreement, 
see  Injimction,  84. 

Enjoining  Wrongful  Dissemination  of  Quo- 
tations Used  in,  see  Injunction,  128. 

Right  to  Set-Off  for  Amount  Paid  to  Agent, 
see  Setoff  and  Counterclaim,  4. 

Question  for  Jury  as  to,  see  Trial,  216. 

For  Editorial  Notes,  see  infra,  VIII.  §  37. 
.523.  A  broker  who  is  privy  to  the  unlaw- 


702 


CONTRACTS,  III.  d. 


ful  design  of  the  parties  to  an  option  con- 
tract, and  brings  them  together  for  the  pur- 
pose of  making  it,  cannot  recover  for  any 
^^ervices  or  losses  incurred  in  the  transac- 
tion. Pope  V.  Hanke,  155  111.  &n,  40  N.  E. 
S.39,  28:  568 

524.  A  wagering  contract  in  fiitures  is 
not  shown  by  the  fact  that  the  purchaser 
intended  to  sell  his  contract  before  the  time 
for  performance  arrived,  unless  it  is  also 
sljown  that  the  other  party  to  the  contract 
did  not  contemplate  an  actual  performance 
of  the  obligation  on  his  part.  Scoles  v. 
State,  46  Tex.  Crim.  Rep.  296,  81  S.  W.  947, 

66:  730 

525.  Evidence  that  a  debt  was  a  balance 
in  dealings  on  the  board  of  trade  in  margins 
on  wheat  is  not  sufficient  to  prove  the  trans- 
action a  gambling  one.  Preston  v.  Cincin- 
nati, C.  &  H.  V.  R.  Co.  36  Fed.  54,         1 :  140 

526.  In  considering  contracts  to  purchase 
and  receive  grain,  although  the  outward 
forms  of  law  may  have  been  complied  with, 
yet,  where  the  defense  is  that  the  contract 
is  a  wagering  one,  and  not  intended  for  the 
actual  sale  and  delivery  of  the  property,  it 
is  the  duty  of  the  courts  to  go  behind  the 
contract,  and  examine  the  facts  and  circum- 
stances which  attended  the  making  of  it,  in 
order  to  ascertain  its  true  character 
Sprague  v.  Warren,  26  Neb.  326,  41  N.  W. 
1113,  3:679 

527.  Where  doubt  is  cast  upon  the  valid- 
ity of  a  contract  for  the  sale  of  grain,  by 
the  testimony,  it  is  the  duty  of  the  party 
claiming  any  rights  under  it  to  make  it 
satisfactorily  and  affirmatively  api>ear  that 
the  contract  was  made  with  the  intention  to 
deliver  the  grain.  Id. 

.528.  Testimony  of  a  commission  merchant 
that  lip  novcr  had  a  warehouse  receipt  for 
grain  in  a  warehouse,  which  he  claimed  to 
have  purchased  on  the  order  of  certain  par- 
ties; that  he  did  not  know  in  what  eleva- 
tor the  alleged  grain  was  which  he  claimed 
to  have  purchased;  and  that  he  settled  the 
alleged  losses  by  "ringing  up"  in  the  board 
of  trade, — fails  to  show  a  bona  fide  pur- 
chase of  grain  for  actual  delivery.  Id. 

529.  Mere  knowledge  on  the  part  of  a  per- 
son loaning  money  that  the  borrower  in- 
tends to  use  it  by  engaging  in  the  purchase 
of  options  on  grains  in  the  market  of  an- 
other state,  or  investing  it  in  wagering  or 
gambling  contracts,  will  not  defeat  an  ac- 
tion by  the  lender  to  recover  back  the 
amount  loaned.  .Tackson  v.  Citv  Xat.  Bank, 
12^1  Ind.  .347.  25  X.  E.  221.  '  0:  657 

530.  2  N.  Y.  Rev.  Stat.  chap.  20.  tit.  8.  § 
16,  declaring  securities,  any  part  of  the  con- 
sideration of  which  is  money  won  by  play- 
ing at  any  game,  or  by  betting  on  the 
hands  of  such  as  do  play  at  any  game,  or 
to  repay  any  money  knowingly  loaned  to  a 
player  at  the  time  and  place  of  such  play, 
to  be  void,  has  no  application  to  notes  exe- 
cuted to  obtain  money  with  which  to  pur- 
chase options  or  to  put  up  as  margins  in 
cotton  speculations.  Sondheim  v.  Gilbert. 
117  Ind.  71.  18  X.  E.  087.  5:  432 

,531.  A  contract  that  the  defendant  should 
give  orders  from  time  to  time  to  the  plain- 


tiff for  the  purchase  and  sale,  on  account  of 
the  defendant,  of  equal  amounts  of  pork  to 
be  delivered  in  the  future;  that  the  plain- 
tiff should,  in  his  own  name,  make  these 
purchases  and  sales  on  the  board  of  trade, 
and  should,  at  or  before  the  time  of  deliv- 
ery, procure  these  contracts  to  be  set  off 
against  each  other  according  to  the  usages 
of  that  board;  that  the  defendant  should 
not  be  required  to  receive  any  pork  and 
pay  for  it,  or  to  deliver  any  pork  and  re- 
ceive the  pay  for  it,  but  should  only  be  re- 
quired to  pay  to  the  plaintiff,  or  entitled  to 
receive  from  him,  the  differences  between 
the  amounts  of  money  which  the  pork  was 
bought  for  and  was  sold  for;  and  that  the 
defendant  should  furnish  a  certain  margin 
and  should  pay  tfte  plaintiff  his  commis- 
sions,— is  a  wagering  contract.  Harvey  v. 
Merrill,  150  Mass.  1,  22  >^.  E.  49,  5:  200 

532.  A  contract  reciting  that  for  a  certain 
consideration  one  agrees  to  sell  to  another 
certain  stock  for  a  certain  sum,  "if  taken 
on  or  before"  a  certain  future  day,  is  a  con- 
tract to  give  the  latter  the  option  to  buy 
stock  s,t  a  future  time.  Schneider  v.  Tur- 
ner, 130  m.  28,  22  N.  E.  497,  6:  164 

533.  A  contract  for  the  sale  of  stock,  "if 
taken  on  or  before"  a  certain  day,  is  void  as 
an  option  contract,  under  111.  Crim.  Code,  § 
130,  although  it  would  not  be  void  at  com- 
mon law.  Id. 

534.  A  purchase  of  stock  by  a  broker  for 
his  customer,  who  puts  up  a  margin,  and, 
aside  from  commissions  and  interest,  simply 
receives  or  pays  the  difference  between  the 
buying  and  selling  values,  is  invalid  under 
Cal.  Const,  art.  4,  §  26,  as  a  sale  of  stock 
on  margin,  and  can  give  the  broker  no  right 
to  enforce  the  ctistomer's  indebtedness  to 
him  thereon.  Cashman  v.  Root,  89  Cal.  373, 
26  Pae.  883,  12:  5li 

535.  A  contract  to  share  the  profits  of  a 
"short"  sale  of  the  stock  of  a  corporation, 
the  shares  to  meet  which  are  to  be  pur- 
chased at  a  decline  anticipated  because  of  a 
legislative  investigation  of  its  affairs  with 
one  about  to  bring  such  affairs  to  the  at- 
tention of  the  legislature  with  the  intention 
of  impairing  the  reputation  of  the  corpo- 
ration for  the  protection  of  his  own  busi- 
ness, in  consideration  of  his  furnishing  ad- 
vance information  as  to  the  probable  course 
and  development  of  the  investigation,  is 
void  as  contrary  to  public  policy.  Veazev  v. 
Allen,  173  N.  Y.  359.  66  N.  E.  103,      62:'362 

536.  That  one  ordering  a  broker  to  pur- 
chase stocks  on  his  account  had  not  the 
means  of  paying  for  them  is  not  conclusive 
evidence  that  a  mere  wagering  contract  was 
intended,  where  the  purchaser  availed  him- 
self of  the  broker's  credit  and  facilities  for 
borrowing  on  the  stocks  themselves.  Win- 
ward  v.  Lincoln,  23  R.  T.  476,  51  Atl.  106, 

64:  160 

537.  Actual  purchases  of  stock  by  a  bro- 
ker are  shown  by  a  ledger  indicating  that, 
in  response  to  an  order  to  purchase,  the  bro- 
ker charged  the  customer  with  the  price  of 
the  stock,  charged  him  monthly  interest  on 
the  amount  invested,  credited  dividends  re- 
ceived from  the  stocks  and  the  entry  of  the 


CONTRACTS,  III.  e,  1. 


70I 


final  closing  out  of  the  stock  at  different 
prices  during  the  day  as  shares  were  sold, 
while  tne  broker's  correspondent  testifies 
that,  as  to  at  least  some  of  the  stock,  the 
broker  actually  had  the  shares  in  his  posses- 
sion. *  Id. 

538.  A  transaction  by  which  a  broker, 
upon  orders  of  his  customer,  actually  pur- 
chases stocks  in  good  faith  and  with  the  in- 
tention that  they  shall  be  delivered  upon 
demand,  is  not  void  as  a  wager  at  common 
law,  although  the  stocks  are  not  in  fact 
paid  for  by,  or  delivered  to,  the  customer, 
who  has  no  intention  of  receiving  them,  but 
are  held  by  the  broker,  who  either  borrows 
or  advances  the  purchase  money  upon  the 
security  of  the  stock,  and  holds  them  until 
ordered  by  the  customer  to  sell  them.      Id. 

539.  Under  the  Illinois  statute  making  il- 
legal an  option  to  sell  or  buy  at  a  future 
time  any  grain  or  other  commodity,  a  eon- 
tract  for  the  purchase  of  150  cars  of  coal, 
with  a  privilege  of  250  cars  more,  is,  as  to 
the  250  cars,  void  as  a  wagering  contract. 
Osgood  v.  Bauder,  75  Iowa,  550,  39  X.  W. 
887,  1 :  655 

540.  A  contract  for  a  certain  quantity  of 
coal,  with  the  privilege  of  an  additional 
quantity,  may  be  valid  as  to  the  part  ac- 
tually bought,  though  void  as  a  wagering 
contract  in  respect  to  the  other  part.        Id. 

541.  A  contract  for  the  privilege  of  order- 
ing any  quantity  of  coal  not  exceeding  12,- 
000  tons  is  not  an  option  contract  in  viola- 
tion of  111.  Crim.  Code,  §  130,  where  it  is 
made  as  a  modification  of  a  prior  disputed 
contract,  with  the  intention  of  limiting  the 
quantity  to  be  ordered,  without  relieving  the 
purchaser  from  an  obligation  under  the  prior 
agreement  to  purchase  the  amount  required 
in  a  certain  business.  Minnesota  Lumber 
Co.  V.  Whitebreast  Coal  Co.  160  111.  85,  43 
X.  E.  774,  31:  529 
Bet  on  horse  race. 

Enforcement  of,  see  infra,  617-619. 
Conflict    of    Laws    as    to,    see    Conflict    of 

Laws,  40. 
Gaming  in   Connection   with  Horse  Racing 

as  a  Criminal  Offense,  see  Gaming,  12- 

16. 

542.  An  agreement  by  the  owners  of  race 
horses  entered  at  certain  stake  races,  to 
divide  equally  all  premiums  and  stake 
moneys  offered  by  the  associations  on  such 
races,  awarded  to  any  of  the  horses  of 
either,  is  not  void  as  a  wagering  contract. 
Hankins  v.  Ottinger,  115  Cal.  454,  47  Pac. 
•254,  40:  76 

e.  In  Restraint  of  Trade. 

1.  In  General 

To  Ship  by  One  Railroad  Only,  see  Car- 
riers, 1025. 

Contract  Giving  Exclusive  Privilege  to 
Hacks,  Carriages,  etc.,  see  Carriers, 
1045-1067. 

Combinations  between  Several  Persons  or 
Corporations  in  Restraint  of  Trade  or 
Commerce,  see  Conspiracy,  II. 


1  Ordinance  Creating  Monopoly,  see  Constitu- 
tional Law,  449. 
Grant    of    Monopoly    for   Removal   of   Gai- 

bage,  see  Constitutional  Law,  456-461. 
Void  Provision  for  Creation  of  Monopoly  in 

Corporate  Cliarter,  see  Corporations,  18. 
Retaining     Power     of     Voting     Corporate 

Stock,  see  Corporations,  661. 
Effect  of  Sale  of  Good  Will,  see  Good  Will, 

III. 
Provision    Against    Insurance    Inuring    to 

Benefit  of  Carrier,  see  Insurance,  1257. 
Lease   of    City    Gas    Works,    see    Municipal 

Corporations.  393. 
See   also   supra,   429,   430,   478,   infra,   620; 

Commerce,  87,  101. 
For  Editorial  Xotes,  see  infra,  VIII.  §  36. 

543.  The  illegality  of  the  by-laws  or  con- 
tract of  a  stock  exchange  as  being  in  re- 
straint of  trade  cannot  be  invoked  by  a 
stranger  as  a  ground  of  com{)elling  the  mem- 
bers of  such  exchange  to  disobey  such  rules, 
as  the  law  does  not  prohibit  contracts  in  re- 
straint of  trade,  but  merely  declines  after 
they  are  made  to  recognize  their  validity. 
American  Livestock  Com.  Co.  v.  Chicago 
Livestock  Exchange,  143  111.  210,  32  N.  E. 
274,  18:  190 

544.  It  is  not  necessary  that  a  contract 
should  create  a  pure  monopoly  in  order  to 
be  void  as  in  restraint  of  trade.  Texas 
Standard  Cotton  Oil  Co.  v.  Adoue,  83  Tex. 
650,  19  S.  W.  274,  15:  598 

545.  All  agreements  in  general  restraint 
of  trade  are  against  public  policy  and  void, 
although  agreements  having  such  partial 
effect  only,  made  in  connection  with  the 
purchase  of  a  business  and  its  good  will,  and 
reasonably  necessary  to  the  enjoyment 
thereof,  and  not  oppressive,  may  be  en- 
forced. Lufkin  Rule  Uo.  v.  Fringeli,  57  Ohio 
St.  596,  49  N.  E.  1030.  41:  186 

546.  A  bald  covenant  in  restraint  of  trade, 
for  which  there  is  no  other  consideration 
than  the  payment  of  money  for  the  obliga- 
tion itself,  without  any  purchase  of  the 
business,  practice,  trade,  or  plant  of  the 
covenantor,  is  void.  Tuscaloosa  ice  Mfg.  Co. 
v.  Williams,  127  Ala.  110,  28  So.  669, 

50:  175 

547.  An  agi-eement  to  prevent  competition 
between  two  corporations  in  the  manufac- 
ture of  fish  glue  under  a  patent,  whereby  an 
article  nearly  worthless  is  to  be  converted 
into  one  of  large  value,  is  not  against  public 
policy.  Gloucester  Isinglass  &  G.  Co.  v. 
Russia  Cement  Co.  154  Mass.  92,  27  N.  E. 
1005,  12:  563 
Creating  agency. 

548.  A  contract  giving  a  person  an  exclu- 
sive agency  for  the  sale  of  a  brand  of  cigars 
in  a  certain  territory  is  not  void  as  in  re- 
straint of  trade.  Newell  v.  Meyendorff,  9 
Mont.  254,  23  Pac.  333,  '         8:  440 

549.  One  who  has  sold  his  property  to  a 
combination,  and  been  placed  in  possession 
as  agent  of  the  purchaser,  cannot  after  years 
of  service  under  that  agreement,  repudiate 
the  contract,  and  reclaim  the  property,  on 
the  ground  that  the  contract  under  which 
the  sale   was   effected    was  in   restraint  of 


704 


CONTRACTS,  III.  e,  3. 


trade.     Gilbert   use  of  Bishop   v.  American 
Surety  Co.  57  C.  C.  A.  619,  121  Fed.  499, 

61 :  253 
Restricting  use  of  electrotype  plates, 

550.  An  agreement  by  the  purchaser  of 
electrotype  plates,  that  he  will  not  sell  them 
to  other  parties  or  multiply  them  for  the 
purpose  of  selling  them,  is  valid  and  enforce- 
able ;  and  a  sale  by  him  to  a  third  person, 
with  no  restriction  as  to  the  use  to  be  made 
of  them,  may  give  his  vendor  a  right  to  sub- 
stantial damages  for  breach  of  the  agree- 
ment. Meyer  v.  Estes,  164  Mass.  457,  41  X. 
E.  6SS  32:  283 
Resiiicting  use  of  switch  track  or  right  of 

way. 

551.  A  railroad  company  having  power  to 
condemn  land  for  a  right  of  way  for  a 
riwitch  track  cannot  bind  itself  by  an  agree- 
ment with  a  dealer  in  coal  that,  in  consid- 
eration of  the  right  to  place  the  track  on 
his  land,  it  will  not  be  used  to  haul  coal  for 
other  persons  having  access  to  it.  Louis- 
ville &  N.  R.  Co.  V.  Pittsburgh  &  K.  Coal  Co. 
1 11  Ky.  960,  64  S.  W.  969.  55:601 

552.  An  agreement  giving  the  exclusive 
right  of  way  to  a  railroad  company,  in  so 
far  as  it  attempts  to  exclude  other  compan- 
ies from  acquiring  a  right  of  way  over  the 
same  tract,  upon  land  not  appropriated  or 
•  equired  for  the  use  of  the  former  company, 
•s  void  as  against  public  policy.  Kettle 
Uiver  R.  Co.  v.  Eastern  R.  Co.  41  Minn.  461, 
43  N.  W.  469,  6:  111 
Jy  patron  of  telephone  company. 

553.  A  contract  by  a  patron  of  a  telephone 
tompyany  not  to  engage  service  from  a  rival 
company  is  void  as  contrary  to  public  policy. 
fJwynn  v.  Citizens'  Teleph.  Co.  69  S.  C.  434, 
48  S.  E.  460,  67:  111 
As  to  sale  of  liquor. 

554.  A  lessee's  agreement  to  sell  no  other 
heer  on  the  premises  than  that  manufactured 
by  a  designated  company  is  not  invalid 
as  against  public  policy.  Ferris  v.  Amer- 
ican Brewing  Co.  155  "ind.  539,  58  N.  E. 
701,  52:  .305 

2.  To  Refrain   from   Business. 

r>y  Owner  Selling  Newspaper,  see  Constitu- 
tional Law,  1088. 

Power  of  Corporate  Stockholder  as  to,  see 
Corporations,  470. 

Measure  of  Damages  for  Breach  of  Con- 
tract, see  Damages,  95. 

Stipulated  Damages  for  Breach  of  Contract, 
see  Damages,  182-184. 

Enjoining  Breach  of  Contract,  see  Injunc- 
tion, 96-103. 

Question  for  Jurv  as  to,  see  Trial.  247. 

See  also  supra.  312-314.  infra.  7.34-737.  767, 
829. 

For  Editorial  Notes,  see  infra.  VIII.  §  36. 

5.W.  A  covenant  not  to  engage  in  a  par- 
ticular business  will  not  invalidate  the  con- 
tract of  which  it  is  part,  if  such  contract 
has  otherwise  a  legal  consideration.  Roson- 
l)aum  V.  United  States  Credit  Svsteni  Co. 
iX.  .7.  Err.  &  App.)  65  N.  J.  L.  255,  48  Atl. 
237,  53:  449 


556.  A  contract  is  not  void  as  being  in 
general  restraint  of  trade,  when  it  operates 
simply  to  prevent  a  single  party  from  en- 
gaging or  competing  in  the  same  business. 
Leslie  v.  I^rillard,  110  N.  Y.  519,  18  N.  E. 
303,  1 :  456 

557.  The  enforcement  of  a  contract  not 
to  engage  in  business  in  competition  with 
the  other  contracting  party  cannot  be  pre- 
vented on  the  ground  that  such  party  is  an 
illegal  trust  or  monopoly.  Harrison  v.  Glu- 
cose Sugar  Refining  Co.  53  C.  C.  A.  484,  116 
Fed.  304.  58:  915 

558.  A  covenant  by  the  seller  of  a  busi- 
ness and  its  good  will,  not  to  engage  in  a 
competitive  business,  although  in  restraint 
of  trade,  is  not  opposed  to  public  policy, 
but  is  valid  and  enforceable  if  the  restraint 
contracted  for  is  partial  and  is  reasonablj'^ 
required  for  the  protection  of  the  purchaser 
in  the  use  and  enjoyment  of  the  business 
purchased.  Trenton  Potteries  Co.  v.  Oli- 
phant  (N.  J.  Err.  &  App.)  58  N.  J.  Eq.  507, 
43  Atl.  723,  46:255 

559.  The  temporary  suspension  of  a  news- 
paper while  reasonably  diligent  efforts  are 
made  to  find  a  suitable  editor  and  continue 
the  business  will  not  defeat  the  right  of  the 
owner  to  enforce  an  agreement  restricting 
competition  by  a  former  owner  of  the  paper. 
Cowan  V.  Fairbrother.  118  N.  C.  406,  24  S. 
E.  212,  32:  829 

560.  A  contract  by  one  selling  stock  in  a 
corporation  organized  for  the  posting  of 
bills,  not  to  engage  in  that  business  in  com- 
petition with  the  corporation,  is  void  as  in 
restraint  of  trade,  under  Cal.  Civ.  Code,  § 
1673.  Merchants'  Ad-Sign  Co.  v.  Sterling, 
124  Cal.  429,  57  Pac.  468,  46:  142 
Limitations  as  to  time. 

See  also  infra,.  736. 

For  Editorial  Notes,  see  infra,  VIII.  §  36. 

561.  A  contract  will  not  be  declared  void 
for  unreasonableness,  which  prevents  the 
manufacturer  of  oleomargarine  from  again 
engaging  in  the  business  for  five  years  upon 
his  uniting  with  other  manufacturers  in 
the  formation  of  a  corporation  for  the  pro- 
duction of  that  article.  Oakdale  Mfg.  Co. 
V.  Garst,  18  R.  I.  484,  28  Atl.  973,      23:  639 

562.  A  five  years'  restriction  on  the  use 
of  a  secret  process  and  trademarks  sold 
with  the  business  is  not  an  illegal  restraint 
of  trade,  though  it  applies  not  only  to  the 
seller,  but  to  those  employed  by.  or  asso- 
ciated with,  her  in  the  business.  Tode  v. 
Gross,  127  N.  Y.  480,  28  N.  E.  469,       13:  652 

.563.  A  contract  by  one  selling  the  right 
to  manufacture  and  sell  a  machine  which 
he  has  devised  not  to  engage  in  the  business 
of  making  such  machines  himself,  nor  grant 
anyone  else  the  right  to  do  so  during  the 
life  of  the  contract,  is  not  void  as  against 
public  policj',  where  possible  customers  are 
limited  in  number  and  scattered  through- 
out the  countrv.  Bancroft  v.  Union  Em- 
bossing Co.  72  N.  H.  402,  57  Atl.  97,    64:  298 

.jG4.  A  covenant  by  the  seller  of  a  busi- 
ness and  its  good  will  to  a  corporation,  not 
to  engage  in  a  competitive  business  during 
the  life  of  the  corporation,  which  is  fifty 
years,  or  for  a  short  time  in  excess  of  its 


CONTRitCTS,  III.  e,  2. 


705 


corporate  life,  is  not  unreasonable  as  to 
term.  Trenton  Potteries  Co.  v.  Oliphant, 
(N.  J.  Err.  &  App.)  58  N.  J.  Eq.  507,  43  Atl. 
723,  46:255 

565.  The  restraint  of  an  employee  from 
engaging  in  business  so  long  as  he  continues 
in  the  emploj'ment  of  a  person  who  agrees 
to  give  him  permanent  employment  does 
not  make  the  contract  unlawful  or  against 
public  policy.  Carnig  v.  Carr,  167  Mass. 
544,  46   N.   E.    117,  35:  512 

566.  A  contract  on  the  part  of  one  sell- 
ing the  good  will  of  his  business  not  to 
compete  with  the  purchaser  for  a  given 
time,  which  is  reasonable  as  to  a  portion 
of  the  trade,  will  not  be  declared  void  be- 
cause it  may  be  unreasonable  as  to  that 
portion  in  the  immediate  vicinity  where 
the  business  is  located.  Swige^W;  v.  Til- 
den,  121  Iowa,  650,  97  N.  W.  82,  63:  608 

567.  A  stipulation  not  to  engage  in  man- 
ufacturing or  selling  fire  alarm  or  police 
telegraph  machines  and  apparatus,  and  not 
to  enter  into  competition  with  the  pur- 
chaser of  the  business  for  the  period  of  ten 
years,  with  no  restriction  as  to  place  stip- 
ulated, which  is  entered  into  by  a  manufac- 
turer on  the  sale  of  his  business  and  a 
transfer  of  his  patents  used  therein,  is  void 
on  the  ground  of  public  policy  as  a  con- 
tract in  restraint  of  trade,  and  cannot  be 
upheld  on  the  ground  that  it  concerns  prop- 
erty and  business  protected  by  patents,  or 
because  the  restriction  is  necessary  to 
enable  the  purchaser  to  enjoy  what  is 
purchased, — even  if  that  could  be  regarded 
as  a  test, — or  because  it  relates  to  a  single 
commodity  which  is  not  of  prime  necessity 
and  not  a  staple  of  commerce.  Gamewell 
Fire  Alarm  Teleg.  Co.  v.  Crane.  160  Mass. 
50,  35  N.  E.  98,  22:  673 
Limitations  as  to  space. 

See  also  infra.  735.  737. 

For  Editorial  Noies,  see  infra,  VIII.  §  36. 

568.  The  extent  of  territory  in  which  a 
competitive  business  may  be  restrained,  in 
order  to  protect  a  purchaser  of  a  business 
and  its  good  will,  is  determined  by  the 
area  of  the  existing  business,  and  not  by 
the  possibility  of  the  extension  of  the  busi- 
ness. Trenton  Potteries  Co.  v.  Oliphant. 
(X.  J.  Err.  &  App.)  58  N.  J.  Eq/  507,  43 
Atl.  723,  46:  255 

569.  The  area  in  which  a  vendor  can  be 
restricted  from  competition  with  his  vendee 
is  as  broad  as  is  necessary  to  afford  ample 
protection  to  the  latter,  provided  the  agree- 
ment is  not  injurious  to  the  public  interest. 
Cowan,  v.  Fairbrother,  118  X.  C.  406,  24 
S.    E.    212,  32:  829 

570.  A  person  may  legally  buy  the  busi- 
ness of  another,  coupled  with  an  undertak- 
ing of  the  seller  not  to  carry  on  the  same 
business  in  the  same  place  or  within  the 
same  territory.  National  Ben.  Co.  v.  Union 
Hospital  Co.  45  Minn.  272,  47  N.  W.  806. 

11:  437 

571.  An  agreement  to  refrain  from  edit- 
ing or  being  connected  with  a  newspaper 
or  magazine  in  the  county  in  which  is  pub- 
lished a  newspaper  the  good  will  of  which 
is    transferred    as    a    part    of    such    agree- 

L.R.A.  Die.— 45. 


ment  is  not  void  as  in  restraint  of  trade. 

Cowan    v.    Fairbrother,   118    N.    C.    406,   24 

S.  E.  212,  32:  829 

Limitations  as  to  both. 

See  also  infra,  734. 

For  Editorial  Notes,  see  infra,  VIII.  §  36. 

572.  The  test  of  the  reasonableness,  with 
respect  to  time  and  territory,  of  a  contract 
by  one  selling  the  good  will  of  his  busi- 
ness, not  to  engage  in  the  same  business 
in  competition  with  the  purchasers,  is 
what  will  furnish  a  fair  and  full  protection 
of  the  business  and  good  will  which  have 
been  purchased  and  paid  for.  Swigert  v. 
Tilden,   121   Iowa,  650,  97  N.  W.  82, 

63:  608 

573.  The  question  of  the  reasonableness 
of  the  restraint  of  trade,  where  a  business 
is  sold  with  an  agreement  not  to  re-en- 
gage in  like  business  for  a  certain  time 
within  certain  territory,  depends  upon 
whether  it  is  such  only  as  to  afford  a  fair 
protection  to  the  party  in  whose  favor  it 
is  made.  National  Ben.  Co.  v.  Union  Hos- 
pital Co.  45  Minn.  272,  47  N.  W.  806, 

11:  437 

574.  A  contract  restraining  the  exercise 
of  one's  calling  for  a  certain  time  is  not 
necessarily  void  upon  grounds  of  public 
policy,  simply  because  the  restraint  ex- 
tends throughout  an  entire  state.  Herres- 
hoff  v.  Boutineau,  17  R.  I.  3,  19  Atl.  712, 

8:  469 

575.  An  agreement  not  to  engage  in  busi- 
ness again  in  the  same  state  for  twenty-five 
years,  made  by  a  person  selling  his  busi- 
ness to  another,  is  a  general  restraint  of 
trade,  which  is  void.  Lufkin  Rule  Co.  v. 
Fringeli,  57  Ohio  St.  596,  49  N.  E.   1030, 

41:  185 

576.  A  contract  restricting  persons  from 
engaging  in  the  milling  business  in  the  vi- 
cinity of  a  certain  city  after  the  completion 
of  an  agreement  for  the  sale  of  their  busi- 
ness, although  it  extends  for  their  lives,  is 
not  illegal  as  in  restraint  of  trade.  Kra- 
mer V.  Old,  119  N.  C.  1,  25  S.  E.  813, 

34:  389 

577.  Public  policy  does  not  prevent  the 
enforcement  of  a  contract  by  a  custom 
shirt  maker,  upon  selling  the  good  will  of 
his  business,  not  to  be  connected  with  such 
business  again  within  the  state  for  a  period 
of  ten  years  in  competition  with  the  pur- 
chasers, where  the  customers  have  been 
secured  by  soliciting  orders  in  all  parts 
of  the  state.  Swigert  v.  Tilden,  121  Iowa. 
6.50,    97    N.    W.    82,  63 :  608 

578.  An  agreement  to  refrain  for  three 
.years  from  selling  benefit  certificates,  ex- 
cept to  railroad  employees,  within  a  cer- 
tain territory  in  which  the  promisor  had 
a  lucrative  business  in  such  certificates, 
and  had  acquired  valuable  contracts  with 
hospitals  for  treatment  of  the  holders  of 
such  certificates;  with  the  further  agree- 
ment to  turn  over  such  hospital  contracts 
to  the  other  party  as  far  as  possible,  in 
consideration  of  a  certain  sum  of  money 
and  of  the  other  party's  agreement  for  the 
same  time  to  refrain  from  selling  such  cer- 
tificates to  railroad  employees  within  that 


706 


CONTRACTS,  III.  e.  2. 


territory, — is  not  void  as  in  restraint  of 
trade.  National  Ben.  Co.  v.  Union  Hospi- 
tal Co.  45  Minn.  272,  47  N.  W.  806, 

11:437 

579.  A  contract  not  to  teach  the  French 
or  German  language,  or  aid  or  advertise  to 
teach  them,  or  be  connected  in  any  way 
with  any  person,  persons,  or  institutions 
that  teach  them,  in  the  state  of  Rhode 
Island,  during  the  year  after  the  end  of  a 
term  of  employment  as  teacher,  is  unrea- 
sonable because  the  restraint  extends  be- 
yond any  apparently  necessary  protection 
to  the  other  party,  unless  it  is  shown  that 
the  latter  would  be  seriously  injured  by 
such  teaching  in  any  part  of  the  state.  Her- 
reshoff  v.  Boutineau,  17  R.  I.  3,  19  Atl. 
712,  8:  469 

580.  A  contract  by  an  employee  of  a 
glucose  manufacturer  not  to  become  inter- 
ested during  the  term  of  his  employment  in 
a  rival  concern  within  a  radius  of  1,500 
miles  of  Chicago  is  not  unreasonable  as  to 
space,  where  the  business  of  the  employer 
occupies  the  whole  of  that  territory.  Har- 
rison V.  Glucose  Sugar  Ref.  Co.  53  C.  C. 
A.  484,  116  Fed.  304,  58:  915 

581.  An  agreement  by  officers  of  corpor- 
ations not  to  engage  in  business  for  five 
years  in  any  way  to  interfere  with  or  com- 
pete with  the  business  of  a  new  corpora- 
tion to  which  each  of  the  old  companies 
sold  its  business  is  not  against  public  pol- 
icy, although  the  new  business  is  of  a  na- 
ture to  extend  over  the  whole  country  and 
is  more  general  than  that  of  either  of  the 
old  companies,  combining  the  business  of 
installins:  and  constructing  electric  plants 
and  appliances,  which  one  of  them  had  car- 
ried on,  with  that  of  manufacturing  and 
dealing  in  such  appliances,  which  the  others 
had  carried  on.  Anchor  Electric  Co.  v. 
Hawks,  171  Mass.  101,  50  N.  E.  509, 

41:  189 

582.  A  covenant  in  a  contract  for  the  sale 
of  a  business  and  its  good  will,  that  the 
sellers  will  not  engage  in  the  same  busi- 
ness "within  any  state  in  the  United  States 
of  America,  or  within  the  District  of  Co- 
lumbia, except  in  the  state  of  Nevada  and 
the  territory  of  Ari/jona,  for  the  period  of 
fifty  years,"  is  divisible  as  respects  the  ter- 
ritory covered,  and  embraces  not  one  whole 
area,  but  several  areas  coincident  with  the 
states  and  territories  and  the  District  of 
Columbia,  disjunctively  described;  and  the 
fact  that  it  is  invalid  as  to  some  of  the 
states  and  territories,  because  the  busi- 
ness purchased  does  not  extend  to  them, 
does  not  render  it  invalid  as  to'  the  other 
states  and  territories,  as  to  wTiich  the 
restraint  is  reasonably  necessary  for  the 
protection  of  the  business.  Trenton  Pot- 
teries Co.  V.  Oliphant  (N.  .T.  Err.  &  App.) 
58  N.  J.  Eq.  .507.  43  Atl.  723.  46:  2.w 

583.  A  contract  by  one  selling  his  busi- 
ness not  to  engasre  in  it  again  for  a  series 
of  years  within  the  territory  where  it  could 
be  profitably  transacted  is  void  as  in  gen- 
eral restraint  of  trade.  Harding  v.  Amer- 
ican Glucose  Co.  182  111.  551,  55  N.  E.  577. 

64:  738 


584.  A  contract  by  the  owner  of  an  ice 
machine  to  discontinue  the  manufacture  of 
ice  in  a  certain  town  for  the  term  of  five 
years,  when  made  without  any  sale  of  his 
business,  and  in  consideration  of  payments 
by  the  owner  of  the  only  other  ide  plant 
in  the  place,  in  which  there  is  a  demand  for 
ice  sufficient  to  consume  and  render  mar- 
ketable the  output  of  both  factories,  is 
void  as  against  public  policy  because  of  the 
restraint  upon  trade  and  the  creation  of  a 
monopoly  in  the  supplying  of  ice  within 
that  town.  Tuscaloosa  Ice  Mfg.  Co.  v. 
Williams,   127   Ala.   110.  28   So.   669, 

50:  175 

585.  A  lease  by  a  firm  of  all  its  machin- 
ery used  in  the  manufacture  of  chaplets 
or  anchors,  with  an  agreement  that  they 
will  not  for  five  years  manufacture  or  sell 
any  chaplets  or  anchors,  except  that  they 
may  furnish  double-headed  chaplets  for  the 
use  of  a  single  third  party,  upon  the  exe- 
cution of  which  lease  the  lessee  leasee 
back  the  machinery  to  the  first  lessor  to 
use  for  any  purpose  except  for  the  manu- 
facture of  chaplets  or  anchors, — constitutes 
an  illegal  contract  in  restraint  of  trade, 
where  it  is  not  limited  as  to  territory, 
and  the  lessor  has  been  engaged  in  cary- 
ing  on  such  business  in  other  states.  Clark 
V.  Needham,  125  Mich.  84,  83  N.  W.   1027, 

51 :  785 

586.  A  lease  by  a  corporation,  engaged 
in  the  business  of  generating  and  furnish- 
ing electricity  for  public  and  private  use,  to 
a  rival  corporation  in  the  same  city,  for 
a  period  of  ten  years,  of  machinery  and 
appliances  used  in  generating  electricity, 
by  which  it  obligates  itself  not  to  engage 
in  the  business  of  furnishing  electric  light 
and  power  to  public  or  private  consumers 
in  the  city  during  said  period,  and  not  to 
dispose  of  any  of  its  property,  machinery, 
or  appliances  retained  by  it  for  producing 
or  generating  in  such  city  electric  light 
and  power,  is  in  contravention  of  public 
policy,  and  no  action  to  recover  rents  can 
be  maintained  thereon  by  the  lessor  or  its 
assignee.  Keene  Syndicate  v.  Wichita 
Gas,  E.  L.  &  P.  Co.  69  Kan.  284,  76  Pac. 
834,  67:61 

587.  A  contract  is  void  as  in  restraint  of 
trade,  which  provides  for  the  purchase  of  a 
manufacturing  business  with  the  intent  to- 
discontinue  its  operation,  and  that  the  per- 
sons making  the  sale  shall  not  engage  in 
the  same  business  in  any  of  eight  states 
named  for  the  period  of  five  years,  nor,  dur- 
ing the  same  period,  allow  the  property 
where  such  business  had  been  carried  on  to 
be  used  for  that  purpose.  Western  Wooden 
Ware  Asso.  v.  Starkey,  84  Mich.  76,  47  N. 
W.  604,  11:  503 

588.  An  agreement  not  to  engage,  di- 
rectly or  indirectly,  for  twenty-five  years, 
in  the  state  or  in  the  United  States,  in  the 
same  business  that  is  sold  by  such  con- 
tract, with  the  good  will  thereof,  tends  to 
rreate  a  monopoly,  and  is  invalid,  whether 
it  is  necessary  or  not  to  the  reasonable- 
enjoyment  of  the  good   will  so   purchased.. 


CONTRACTS,  III.  f,  g,  1. 


707 


Lufkin   Rule   Co.   v.   Fringeli,   57    Ohio    St. 

696,  49  N.  E.  1030,  41:  185 

589.  On   an  agreement  between  a   barber 

I        who  had  no  shop,  patronage,  or  good   will 

'        to  sell,  and  another  with  whom  he  forms  a 

[        partnership  indefinite  in  duration,  and  who 

stipulates   to   furnish  the   capital   or   outfit 

for  one  half  the  gross  receipts,  a  stipulation 

on  the  part  of  the  barber  never  to  do  any 

barbering  in  the  town  outside  the  shop  of 

the   other   party   is   unreasonable,   and   will 

not    be    enforced     in     equity.     Carroll    v. 

Giles,  30  S.  C.  412,  9  S.  E.  422,  4:  154 

f.  Ratification;  Validating. 

Estoppel  by,  see  Estoppel,   120,    125,    162. 

Proof  of  Ratification  of  Unauthoi;jzed  Em- 
ployment, see  Evidence,  2317. 

Of  Altered  Note,  see  Bills  and  Notes,  45; 
Pleading,  291. 

By  Corporation,  sec  Corporations,  IV.  d,  4. 

Of  Infant's  Contracts,  see  Infants,  I.  d,  2,  6. 

Of  Contract  with  City,  see  Municipal  Cor- 
porations, 300-307,  342. 

Of  Agent's  Contracts,  see  Principal  and 
Agent,  II.  d. 

Of  Contract  by  School  Board,  see  Schools, 
93,  95. 

Question  for  Jury  as  to,  see  Trial,  227,  228. 

For  Editorial  Notes,  see  infra,  VIIL  §§  29, 
31. 

590.  The  allowance  by  a  city  council  of 
a  claim  on  an  invalid  contract  does  not 
give  to  it  a  validity  which  it  otherwise 
did  not  possess.  Berka  v.  Woodward,  125 
Cal.   119,  57  Pac.  777,  45:  420 

591.  A  contract  void  because  it  stipulates 
for  doing  what  is  forbidden  by  law  at  the 
time  when  it  is  to  be  done  cannot  be  rati- 
fied, even  at  a  time  when,  owing  to  a  change 
in  the  law,  it  would  be  lawful  to  do  the 
thing.  Handy  v.  Globe  Pub.  Co.  41  Minn. 
188,  42  N.  W.  872,  4:  466 

592.  An  entire  contract  cannot  be  ratified 
in  part.  Id. 

g.  Remedies;    Proceeds    of    Unlawful    Con- 
tract. 

1.  In    General. 

Right  to  Damages  against  Seller  of  Bo- 
hemian Oats,  see  Fraud  and  Deceit,  58. 

Right  of  Action  between  Partners,  see  Part- 
nership, 136,  137. 

Appointment  of  Receiver,  see  Receivers,  21. 

See  also  supra,  441. 

For  Editorial  Notes,  see  infra,  VIII.  §  88. 

593.  The  court  will  not  aid  in  the  enforce- 
ment of  an  illegal  contract,  but  will  leave 
the  narties  to  it  just  where  it  finds  them. 
Brooks  V.  Cooper  (N.  J.  Err.  &  App.)  50  N. 
J.  Eq.  761,  26  Atl.  978,  21 :  617 

504.  No  action  can  be  maintained  on  a 
contract  the  consideration  of  which  is  either 
wickea  in  itself  or  prohibited  by  law.  Storz 
V.  Finkelstein,  46  Neb.  577,  65  N.  W.  195, 

30:  644 

595.  Courts  will  take  notice,  of  their  own 
motion,  of  illegal  contracts  which  come  be- 
fore them   for  adjudication,  and   will   leave 


the  parties  where  they  have  placed  them- 
selves. Richardson  v.  Buhl,  77  Mich.  632, 
43  N.   W.    1102,  6:  457 

596.  The  rule  against  granting  relief  to  a 
party  to  an  illegal  contract  does  not  apply 
to  prevent  a  receiver  from  recovering  the 
fruits  of  the  transaction  for  the  benefit  of 
iionest  creditors.  Pittsburgh  Carbon  Co.  v. 
McMillin,  119  N.  Y.  46,  23  N.  E.  530, 

7 :  46 

597.  The  invalidity  of  a  gratuitous  con- 
tract to  do  a  certain  act  is  no  defense  to  an 
action  by  the  promisee  for  injuries  sustained 
by  want  of  due  care  and  skill  in  doing  it. 
Wertheimer  v.  Saunders,  95  Wis.  573,  70  N. 
W.  824,  37:  146 

598.  No  recovery  can  be  had  for  losses 
which  have  arisen  under  an  illegal  contract. 
Reed  v.  Johnson,  27  Wash.  42,  67  Pac.  381, 

57 :  404 

599.  The  claim  of  a  partner  to  contribu- 
tion from  his  copartners  cannot  be  defeated 
on  the  ground  of  illegality  in  the  partner- 
ship transaction  out  of  which  the  liability 
arose,  unless  the  partnership  is  itself  an 
illegal  partnership,  or  unless  the  act  form- 
ing the  basis  of  the  claim  is  not  only  illegal, 
but  was  committed  by  the  partner  asking 
contribution  with  knowledge  or  construct- 
ive notice  of  its  illegalitv.  Smith  v. 
Ayrault,  71  Mich.  475,  39  N.  W.  724, 

1:  311 
Cheating;  fraud. 

600.  Men  who  associate  themselves  for  the 
purpose  of  cheating  others  cannot  ask  the 
courts  to  distribute  their  booty  by  adjudg- 
ing the  demands  of  one  against  the  other, 
arising  out  of  their  quarrels  over  the  plun- 
der. Morrison  v.  Bennett,  20  Mont.  560.  52 
Pac.   553,  40:  158 

601.  The  fact  that  a  transaction  is  against 
public  policy  in  law  will  not  prevent  a  rem- 
edy against  one  party,  who  is  guilty  of 
fraud  by  means  of  his  persuasive  or  other 
influence  oV^er  the  other  party,  in  favor  of 
the  latter,  who  is  not  consciously  wrong, 
but  who  is  actually  deceived  by  the  fraud 
and  misrepresentations  of  the  former  party. 
Hess  V.  Culver,  77  Mich.  598,  43  N.  W.  994, 

6:498 

602.  A  contract  of  subscription  to  a  book 
entitled  "Men  of  Progress  of  the  State  of 
Maine,"  whereby  a  person  agrees  to  furnish 
his  portrait  and  a  sketch  of  his  life  for  pub- 
lication therein,  and  to  receive  and  pay  for 
a  copy  of  the  book  when  issued,  cannot  be 
enforced  where  the  agent  who  solicits  the 
subscription  falsely  represents  that  only 
three  other  persons  in  the  town  in  which  de- 
fendant lives  will  be  asked  to  become  sub- 
scribers, and  that  portraits  and  sketches  of 
only  300  persons  in  all  will  be  published, 
since  these  representations  relate  to  the 
character  and  contents  of  the  book,  and  are 
material  to  a  work  of  this  particular  charac- 
ter. Greenleaf  v.  Gerald,  94  Me.  91,  46  Atl. 
799,  50:  542 

603.  Where  a  contract  has  been  made  to 
accomplish  a  fraudulent  purpose,  a  court  of 
equity  will  not,  at  the  suit  of  a  party  to  the 
fraud, — a  particeps  doli. — if  the  contract  is 
executory,  either  compel  its  execution  or  de- 


708 


CONTRACTS,  III.  g,  1. 


cree  its  cancelation,  or,  after  it  has  been  ex- 
ecuted, set  it  aside,  and  thus  restore  to  the 
plaintiff  the  property  or  other  interest 
which  he  has  fraudulently  transferred.  It 
will  leave  the  parties  in  the  position  in 
which  they  have  placed  themselves.  This 
rule  applies  not  only  to  the  original  par- 
ties to  the  fraudulent  transaction,  but  to 
their  heirs,  and  to  all  parties  claiming  un- 
der or  by  title  derived  from  them,  where  no 
ecjuitable  rights  intervene  to  protect  such 
parties.  McClintock  v.  Loisseau,  31  W.  Va. 
865,  8  S.  E.  612,  2:  816 

604.  If  a  man,  knowing  that  a  scheme  is 
fraudulent,  and  that  the  natural  outcome  of 
it  will  be  to  defraud  some  innocent  person, 
goes  into  it  solely  for  the  purpose  of  making 
money  out  of  it,  though  he  may  not  be 
equally  in  fault  with  another  who  is  the 
moving  party  in  the  fraud  and  influences 
him  by  his  persuasions  and  repre^ientations, 
a  court  will,  on  the  ground  of  public  policy, 
deny  him  anv  relief  against  the  other  party. 
Knight  V.  Linzey,  80  Mich.  396.  45  N.  W. 
337,  8:476 

605.  When  an  innocent  member  of  a  firm 
established  for  the  conduct  of  lawful  and 
moral  business  calls  upon  his  partner  for  a 
share  of  profits  made  in  partnership  trans- 
actions, the  partner  will  not  be  absolved 
from  the  duty  of  dividing,  on  showing  that 
he  realized  the  profits  by  cheating  the  custo- 
mers of  the  firm.  Pennington  v.  Todd  (N.  J. 
Err.  &  App.)  47  N.  J.  Eq.  569,  21  Atl.  297, 

II :  589 

606.  The  illegality  of  an  agreement  by  a 
corporation  for  the  purchase  of  property,  by 
which,  to  avoid  the  statutes  and  to  defraud 
the  public,  a  secret  contract  was  made  for 
the  purchase  of  patents,  will  not  defeat  the 
right  of  the  corporation  to  recover  from  a 
promoter  of  the  corporation  the  avails  of  a 
secret  agreement  between  him  and  the  seller 
of  the  property.  Yale  Gas  Stove  Co.  v.  Wil- 
cox, 64  Conn.  "^101,  29  Atl.  303,  25:  90 

007.  If  a  person  having  no  knowledge  of 
the  scheme  of  the  Bohemian-oat  business,  or 
of  the  corporate  existence  of  the  pretended 
company,  or  of  want  of  integrity  of  its  pur- 
pose and  the  honesty  of  its  business,  relies 
entirely  upon  .and  believes  the  statements  of 
another  that  there  is  such  a  corporation  and 
that  its  business  is  honest,  he  is  not  pre- 
cluded, on  the  ground  of  guilty  participa- 
tion, from  maintaining  an  action  for  fraud 
against  the  person  who  induced  him  to  give 
his  notes  in  pursuance  of  such  scheme,  al- 
though fraudulent.  Knight  v.  Linzey.  80 
Mich.  396,  45  N.  W.  337.  8:  470 
Contracts  in  violation  of  statute. 

See  also  supra.  400. 

008.  An  action  on  a  contract  which  is  not 
only  declared  unlawful  by  statute,  but  is 
maile  a  penal  ofi"ense,  cannot  be  maintained. 
Raleish  &  G.  R.  Co.  v.  Swanson.  102  Ga. 
7.)4,  28  S.  E.  601.  39:  275 

009.  There  can  be  no  recovery  as  between 
the  parties  on  a  contract  made  in  violation 
of  a  statute,  the  violation  of  which  is  pro- 
hibited by  a  penalty,  although  the  statute 
does  not  pronounce  the  contract  void  or  ex- 
pressly   prohibit     the    same.       Sandage    v. 


Studebaker  Bros.  Mfg.  Co.  142  Ind.  148,  41 
N.  E.  380,  34:  363 

610.  Vendees  of  patent  rights  for  whose 
protection  a  statute  is  enacted  imposing  du- 
ties upon  a  vendor  are  not  in  pari  delicto 
so  as  to  prevent  them  from  obtaining  re- 
lief from  their  contract  on  account  of  the 
vendor's  failure  to  obey  the  statute.  Mason 
V.  McLeod,  57  Kan.  105,  45  Pac.  76,      41 :  548 

611.  The  courts  will  not  enforce  or  recog- 
nize an  agreement,  express  or  implied,  on 
the  part  of  a  servant  to  waive  the  perfor- 
mance of  a  statutory  duty  imposed  on  the 
master  for  the  protection  of  the  servant, 
and  in  the  interest  of  the  public,  and  en- 
forceable by  criminal  prosecution.  Narra- 
more  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  37 
C.  C.  A.  499,  96  Fed.  298,  48:  68 

612.  A  servant  cannot  claim  either  an  ex- 
press or  an  implied  contract  to  pay  for 
services  under  a  contract  in  violation  of  laws 
fixing  a  penalty  for  doing  the  act  upon 
which  recovery  is  sought,  and  in  no  case  can 
a  contract  be  implied  when  the  parties  to  it 
are  in  pari  delicto,  and  when  plaintiff,  to 
make  his  case,  must  resort  to  the  illegal 
transaction  in  proof  and  pleading.  Short  v. 
Bullion,  B.  &  C.  Min.  Co.  20  Utah,  20,  57 
Pac.  720,  45:  603 

613.  An  employee  who  works  more  than 
eight  hours  per  day  in  a  mill  or  reduction 
works,  in  violation  of  Utah  Sess.  Laws  1896, 
p.  219,  chap.  72,  and  Utah  Rev.  Stat.  1898, 
§  1337,  cannot  recover  on  a  quantum  meruit 
for  his  services  during  the  overtime.  Id. 

614.  If  an  agreement  is  legally  void  and 
unenforceable  by  reason  of  some  statutory 
or  common-law  prohibition,  which  does  not 
involve  any  positive  immorality,  and  there 
is  no  other  reason  of  public  policy  why  the 
courts  should  refuse  to  grant  relief,  a  party 
who  has  received  anything  under  it  from 
the  other  party,  and  has  failed  to  perform 
on  his  part,  must  account  to  the  other  for 
what  he  has  received.  Manchester  &  L.  R. 
Co.  V.  Concord  R.  Co.  66  N.  H.  100,  20  Atl. 
383,  9:  689 

616.  A  railroad  company  which  continues 
to  operate  a  rival  and  competing  line  under 
a  prior  contract,  after  the  passage  of  a 
statute  prohibiting  such  contracts  and  mak- 
ing the  company  which  operates  a  rival  line 
subject  to  penalty,  although  such  continua- 
tion was  illegal,  cannot  retain  the  money  ac- 
quired by  such  operation  when  called  upon 
by  the  owner  of  the  road  for  an  accounting, 
but  the  latter,  not  being  in  pari  delicto,  is 
entitled  to  an  equitable  share  of  the  earn- 
ings. Id. 
Gambling  and  wager  contracts. 
Relief  between  Partners,  see  Partnership, 
104-107. 

616.  One  who  loans  or  advances  money 
with  the  understanding  that  it  shall  be  used 
in  gambling,  or  who  participates  and  shares 
in  the  gambling  transaction  thus  promoted 
by  his  act,  becomes  particeps  criminis,  and 
cannot  recover  in  a  suit  for  the  money 
loaned  or  advanced  under  such  circum- 
stances. Appleton  V.  Maxwell,  10  N.  M.  748, 
65  Pac.  158,  55:  93 

617.  The  rule  that  so  long  as  an   illegal 


CONTRACTS,  III.  g,  2. 


709 


contract  is  executory  the  courts  will  aid 
a  recovery  back  of  whatever  has  been  paid 
thereon  does  not  apply  to  a  partly  executed 
contract  for  the  exclusive  right  of  bookmak- 
ing  at  a  race  track  at  a  particular  meeting;, 
and  the  contracting  party  cannot,  after  en- 
joying the  benefit  of  the  contract  for  a  num- 
ber of  days,  abandon  it  and  recover  back 
money  paid  in  excess  of  the  pro  rata  amount 
due  for  the  time  which  has  elapsed.  UUman 
V.  St.  Louis  Fair  Asso.  167  Mo.  273,  66  S. 
W.  949,  56:  606 

618.  The  courts  will  aid  neither  party  to 
a  contract  by  which  the  owner  of  a  race 
track  grants  the  exclusive  privilege  of  book- 
making  and  pool  selling  at  the  track  fof  a 
certain  meeting.  Id. 

619.  A  partnership  for  horse  racing  on  a 
bet  with  a  person  whom  the  partners  regard 
as  a  "sucker"  and  a  "big  snap"  ?nto  which 
they  induce  him  to  enter  by  making  hira 
think  he  has  a  sure  thing  and  by  deceiving 
him  into  the  supposition  that  their  horse  is 
imtrained  and  undeveloped,  while  they 
deemed  that  they  had  a  "dead  mortal  cinch," 
is  a  conspiracy  to  defraud  such  that  a  court 
will  not  aid  either  of  the  partners  by  com- 
pelling one  who  has  pocketed  all  the  profiits 
to  make  an  accounting.  Morrison  v.  Ben- 
nett, 20  Mont.  560,  52  Pac  553,  40:  158 
Illegal  combinations. 

See  also  supra.  549,  619;    infra,  716. 

620.  A  party  to  an  illegal  trust  combina- 
tion, who,  in  pursuance  of  the  agreement, 
has  furnished  goods  in  the  name  of  the 
trustee,  cannot  claim  the  proceeds  as  against 
a  receiver  of  the  trust  assets,  although  he 
withdrew  from  the  combination  before  the 
receiver  was  appointed.  Pittsburgh  Car- 
bon Co.  v.  McMillin,  119  N.  Y.  46,  23  N.  E. 
530,  7 :  46 

2.  Contracts    against    Public    Policy. 

Relief    between    Partners,    see    Partnership, 

103,  137. 
See  also  supra.  395-400;  infra,  803. 
For  Editorial  Notes,  see  infra,  VIII.  §  35. 

621.  Xo  right  of  action  can  spring  out  of 
an  illegal  contract;  and  this  rule  applies,  not 
only  when  the  contract  is  expressly  illegal, 
but  whenever  it  is  opposed  to  public  pol- 
icy. Cleveland,  C.  C.  &  I.  R.  Co.  v.  Closser, 
126  Ind.  348,  26  N.  E.  159,  9:  754 
Kirkpatrick  v.  Clark,  132  111.  342,  24  N.  E. 
71,  8:  511 

622.  Neither  party  can  have  the  aid  of  a 
court  to  enforce  rights  under  a  contract 
which  is  opposed  to  public  policy.  Yale  Gas 
Stove  Co.  V.  Wilcox,  64  Conn.  101,  29  Atl. 
303,  ,  25 :  90 

623.  Enforcement  of  contracts  clearly  re- 
pugnant to  sound  morality  and  civic  honesty 
will  be  denied  by  the  courts  on  the  ground 
of  public  policy.  Veazey  v.  Allen,  173  N.  Y. 
359,  •66  N.  E.   103,  62:  362 

624.  No  suit  will  be  entertained  by  either 
a  court  of  law  or  a  court  of  equit}',  by 
either  party  to  an  illegal  contract  against 
the  other,  where  the  contract  is  against  pub- 
lic policy,  whether  it  is  executed  or  execu- 
tory. Woodson  V.  Plopkins,  85  Miss.  171,  37 
So.  1000.  38  So.  298,  70:  645  ' 


625.  Brokers  'who  knowingly  make  con- 
tracts that  are  void  and  illegal  as  against 
public  policy,  and  advance  money  on  account 
of  them  at  the  request  of  their  principal, 
cannot  recover  it  or  their  commissions.  Har- 
vey v.  Merrill,  150  Mass.  1,  22  N.  E.  49, 

5:  200 

626.  When  a  contract  is  against  public 
policy,  but  neither  malum  prohibitum  nor 
malum  in  se,  courts  will  allow  compensa- 
tion for  services  rendered  under  it,  upon  the 
rule  of  quantum  meruit.  Davis  v.  Webber, 
66  Ark.  190,  49  S.  W.  822,  45:  196 

627.  One  who  agrees  to  insure  his  life  for 
the  benefit  of  an  association  of  which  he  is 
a  member  is  not  in  pari  delicto,  so  that  the 
court  will  not  interfere  to  compel  the  asso- 
ciation to  account  in  ease  it  receives  the 
benefit  of  the  insurance.  Tate  v.  Commer- 
cial Bldg.  Asso.  97  Va.  74,  33  S.  E.  382, 

45:243 

628.  One  cannot  recover  back  money  paid 
under  an  illegal  contract  to  purchase  the 
squipment  of  a  postoflRce,  when  he  fails  to 
obtain  the  appointment  as  postmaster, 
which  was  the  chief  thing  contracted  for, 
but  the  court  will  refuse  to  aid  either  party. 
Edwards  v.  Randle,  63  Ark.  318,  38  S.  W. 
343,  36:  174 
Accepting  free  transportation. 

629.  One  accepting  free  transportation 
which  a  railroad  company  is  forbidden, 
under  penalty,  to  grant,  is  not  precluded,  on 
the  ground  that  he  is  in  pari  delicto,  from 
holding  the  carrier  liable  to  him  for  injur- 
ies due  to  its  negligence,  since  he  is  not 
in  pari  delicto  with  a  railroad  company,  and, 
if  he  is  so  with  respect  to  the  carriage  con- 
tract, it  does  not  extend  to  the  negligence 
causing  the  injury.  McNeill  v.  Durham  & 
C.  R.  Co.  135  N  C.  682,  47  S.  E.  765, 

67 :  227 
Taking  excessive  interest. 

630.  One  who,  through  an  agent,  conducts 
a  loan  office,  receiving  for  loans  rates  of 
interest  which  are  so  extortionate  as  to 
shock  the  moral  sense  and  to  be  against 
the  public  policy  of  the  state,  cannot  re- 
ceive the  aid  of  a  court  of  equity  to  compel 
the  agent  to  pay  over  money  received  in  the 
business,  or  to  obtain  possession  of  the 
books,  memoranda,  and  other  property  per- 
taining thereto.  Woodson  v.  Hopkins.  85 
Miss.  171,  37  So.  1000,  38  So.  298,  70:  645 
To  evade  taxes. 

631.  A  mortgage  and  note  assigned  with 
intention  to  evade  the  payment  of  taxes  is 
illegal  and  the  assignor  who  has  retained 
possession  of  it  cannot  enforce  it  in  the 
name  of  the  assignee  for  his  own  benefit; 
nor  can  the  latter  enforce  it  if  he  accepted 
it  as  particeps  criminis  to  defraud  the  rev- 
enue laws.  Sheldon  v.  Pruessner,  52  Kan. 
579.  35  Pac.  201,  22:  709 
With  attorney. 

632.  A  statute  forbidding  an  attorney  at 
law  to  promise  or  give  to  any  person  a  val- 
uable consideration  as  an  inducement  to 
placing,  or  in  consideration  of  having  placed, 
in  his  hands  a  demand  for  the  purpose  of 
having  an  action  brought  thereon,  will  not 
prevent  the  person  who  places  the  demand 


710 


CONTRACTS,  IV.  a. 


in  h's  hands  from  recovering  the  agr  ed  com- 
pensation, since  the  parties  are  not  in  pari 
delicto.  Irwin  v.  Curie,  171  N.  Y.  409,  64 
N.  E.   161,  58:  830 

Affecting  marriage  relation. 

633.  A  void  promise  to  refrain  from  mar- 
rying, made  by  a  woman  as  a  mere  inci- 
dent of  her  contract  to  live  with  and  take 
care  of  a  man  during  his  life,  will  not  pre- 
clude her,  after  fully  performing  the  con- 
tract on  her  part,  from  recovering  the  con- 
sideration which  the  contract  provides  for 
her  services.  King  v.  King,  63  Ohio  St.  363, 
59  N.  E.  Ill,  ■  52:  157 
Public  contracts;   affecting  bids. 

634.  That  a  municipal  corporation  has  ac- 
cepted work  done  under  a  contract  let  upon 
competitive  bidding,  and  paid  the  price, 
with  knowledge  of  a  partnership  agreement 
between  the  bidders  which  enhanced  the 
contract  price,  will  not  entitle  the  partners 
to  an  account  of  the  profits  from  one  of 
their  number  who  received  the  money,  on 
the  ground  that  the  municipality  was  not 
injured  by  the  illegal  partnership  agree- 
ment. Hoffman  v.  McMullen,  28  C.  C.  A. 
178,  48  U.  S.  App.  596,  83  Fed.  372,    45:  410 

635.  A  contract  by  intending  bidders  for 
public  work,  to  procure  the  contract  for  a 
price  as  high  as  possible,  and  become  part- 
ners in  its  execution,  is  not,  after  the  work 
has  been  done  and  the  money  paid  to  one 
of  them,  within  the  rules  that  a  contract 
will  be  enforced,  even  if  incidentally  con- 
nected with  an  illegal  transaction,  provided 
it  is  supported  by  an  independent  consider- 
ation, and  that  after  the  illegal  contract 
has  been  fully  executed  one  party  in  pos- 
session of  the  gains  Avill  not  be  tolerated  to 
interpose  the  objection  that  the  business 
was  in  violation  of  law,  so  as  to  enable  the 
other  parties  to  compel  an  accounting.  Id. 
Affecting  official  action. 

See  also  supra,  482. 

636.  The  rule  denying  a  remedy  to  a  per- 
son in  pari  delicto  will  not  prevent  equitable 
relief  against  the  enforcement  of  the  power 
of  sale  in  a  mortgage  which  is  against  pub- 
lic policy  because  it  was  given  in  compen- 
sation for  services  to  influence  or  procure 
appointment  to  a  public  office.  Basket  v. 
Moss,  115  N.  C.  448,  20  S.  E.  733,  48:  842 

037.  The  illegality  of  a  transfer  of  stock 
to  the  president  of  a  corporation  for  the 
purpose  of  having  it  used  to  corrupt  govern- 
ment officials  for  the  benefit  of  the  corpo- 
ration will  not  prevent  the  owner  from  re- 
covering the  stock  by  action,  if  it  has  not 
been  used  for  the  illegal  purpose,  but  has 
been  taken  by  the  transferee  for  his  own 
use.  Wassermann  v.  Sloss,  117  Cal.  4^5, 
40    Pac.    566.  38:  176 

Purchase  of  lottery  ticket. 
For  Editorial  Notes,  see  infra,  VIII.  §  2'^. 

6.?8.  An  unlawful  purchase  of  a  lottery 
ticket  will  not  prevent  the  purchaser  from 
claiming  the  proceeds  of  the  ticket  from 
one  who  fraudulently  obtained  it  from  him 
after  it  had  drawn  a  prize.  Martin  v.  Rioh- 
ardson,  94  Ky.  183.  21  S.  W.  1039,  19:  692 
Illegal  purchase  of  liquor. 
For  Editorial  Notes,  see  infra,  VIII.  §  35. 

639.  A  statutory  right  to  recover  money 


paid  on  an  unlawful  purchase  of  intoxicat- 
ing liquors  cannot  apply  to  a  purchase  made 
in  another  state  where  it  was  valid,  al- 
though the  seller's  intent  to  aid  the  piir- 
chaser  to  violate  the  laws  of  his  state 
would  defeat  his  right  to  recover  for  the 
purchase  .price,  on  grounds  of  public  policy. 
Wind  V.  Her,  93  Iowa,  316,  61  N.  W.   1001, 

27:219 
Selling  goods  for  use  in  disorderly  house. 
For  Editorial  Notes,  see  infra,  VIII.  §  25. 

640.  A  vender  of  goods,  with  knowledge 
that  they  are  to  be  used  in  a  house  of  ill 
fame,  must  be  deemed  to  aid  and  partici- 
pate in  the  immoral  and  illegal  use,  so  as 
to*  defeat  its  right  of  action  to  recover  the 
goods  from  a  purchaser  thereof  on  sale  un- 
der execution  against  the  vendees,  where 
the  sale  reserved  title,  ownership,  and  pos- 
session of  the  property,  with  the  right  to 
take  possession  even  before  maturity  of 
the  deferred  payments,  whenever  the  vender 
deemed  itself  insecure.  Standard  Furni- 
ture Co.  V.  Van  Alstine,  22  Wash.  670,  62 
Pac.  145,  51 :  889 
To  compound  crime. 

641.  Equity  will  not  entertain  a  bill  to 
cancel  instruments  of  indebtedness  given 
under  an  agreement  to  compound  a  felony 
or  stifle  its  prosecution,  as  the  parties  are 
in  pari  delicto.  Rock  v.  Mathews,  35  W. 
Va.  531,  14  S.  E.  137,  14:  508 
Shattuck  V.  Watson,  53  Ark.  147,  13  S.  W. 
516,  7:551 

642.  One  who  has  executed  and  delivered 
securities  in  consideration  of  a  promise  to 
refrain  from  a  prosecution  for  felony  of  a 
person  guilty  thereof  cannot,  after  his  ille- 
gal purpose  has  failed  from  causes  other 
than  a  breach  of  the  contract,  and  a  pros- 
ecution has  been  commenced  by  third  par- 
ties, rescind  the  contract  and  recover  back 
the  securities.  Shattuck  v.  Watson,  53 
Ark.  147,  13  S.  W.  516,  7:551 


rV.  Performance;    Breach, 
a.  In  General. 

Quantum  Meruit  for  Literary  Services,  see 
Assumpsit,  2. 

Estoppel  to  Deny  Liability  on  Contract,  see 
Estoppel,  197. 

Burden  of  Proving  Performance,  see  Evi- 
dence, 648. 

See  also  supra,  271. 

For  Editorial  Notes,  see  infra,  VIIL  §§  39- 
44. 

643.  While  a  person  who  agrees  to  pay 
another  a  sum  of  money  out  of  a  certain 
claim  when  collected  has  no  right  to  use  any 
artifice  to  conceal  the  fact  that  he  has  ob- 
tained payment  of  the  claim,  it  is  not  his 
duty  to  seek  out  the  other  to  inform  him 
that  it  has  been  paid.  Jackson  v.  Combs 
(D.  C.)  7  Mackey,  608.  ^        1:742 

644.  The  share  which  a  person  is  entitled 
to  from  an  estate  of  a  person  who  had 
agreed  to  give  the  former  a  specified  share 
thereof  cannot  be  diminished  because  of  a 


CONTRACT.-.  IV.  b,  1. 


711 


gift  by  will  of  a  portion  of  the  estate  to 
the  children  of  the  distributee.  Nowack 
V.  Berger,  133  Mo.  24,  34  S.  W.  489, 

31:  810 
"Who  must  perform. 

t)45.  A  contract  to  take  a  supply  of  water 
for  a  term  of  years,  though  not  specifying 
any  building  to  which  it  should  be  sup- 
plied, does  not  require  a  personal  taking 
of  the  water  for  the  whole  period,  but  is 
satisfied  by  a  taking  by  other  parties  at 
the  place  contemplated  by  the  parties  to 
the  contract.  Drummond  v.  Crane,  159 
Mass.  577,  35  N.  E.  90,  23:  707 

646.  For  the  purpose  of  determining  the 
riwht  of  one  who,  after  contracting  to  fur- 
nish electrotype  plates,  took  partners  into 
his  business  and  completed  his  contract 
without  notifying  the  other  party  of  the 
change  of  firm,  to  relief  against  ohe  who  has 
broken  his  contract  as  to  the  use  to  be  made 
of  the  plates,  the  contract  must  be  re- 
garded as  performed,  not  by  a  volunteer 
stranger,  but  by  the  contracting  party  act- 
ing through  the  partnership.  Meyer  v. 
Estes,  164  Mass.  457,  41  N.  E.  683,  32:  283 
Place  of  performance. 

See  also  infra,  745. 

647.  Any  reasonable  place  of  perform- 
ance may  be  designated  by  the  obligee,  as  a 
general  rule,  when  no  place  of  performance 
is  agreed  upon  bv  the  parties.  Tuttle  v. 
Burgett,  53  Ohio  St.  498,  42  N.  E.  427. 

30:  214 

648.  Support  at  such  place  or  places  as 
may  be  selected  by  the  mortgagees  can  be 
claimed  by  them  .under  a  mortgage  condi- 
tioned that  the  mortgagor  shall  furnish 
them  during  life  comfortable  rooms,  food, 
clothing,  medicine,  and  medical  attendance 
in  sickness,  with  necessaries  and  comforts 
suitable  for  persons  of  their  age  and  situa- 
tion in  life,  without  specifying  any  place 
where  it  shall  be  furnished;  and  they  are 
not  obliged  to  receive  it  at  the  house  of  the 
mortgagor.  Id. 
How  performance  may  be  avoided. 

649.  A  man  is  not  prevented  from  trans- 
ferring his  property,  by  an  agreement  to 
leave  all  his  property  at  death  to  an  adopted 
child,  if  the  transfer  is  not  made  for  the 
purpose  of  defrauding  the  latter.  Austin 
V.  Davis,  128  Ind.  472,  26  N.  E.  890,    12:  120 

650.  A  contract  by  a  fertilizer  manufac- 
turer whose  principal  business  is  to  manu- 
facture acidulated  phosphate  from  crude 
rock.,  both  for  sale,  and  for  the  production 
of  higher  grades  of  fertilizer,  to  take  his 
entire  consumption  of  rock  from  the  other 
party  to  the  contract,  does  not  give  him 
the  riijht  to  avoid  taking  the  crude  rock  by 
purchasing  in  the  market  rock  already  acid- 
ulated, when  he  finds  it  to  his  advantage  to 
do  so,  on  the  ground  that  when  he  pur- 
chases such  rock  he  does  not  require  any  of 
the  crude  material.  Loudenback  Tertilizer 
Co.  V.  Tennessee  Phosphate  Co.  58  C.  C.  A. 
220.  121  Fed.  298,  61:  402 
Notice;    offer. 

Of  Coil  tract  to  Sell  Land,  see  Vendor  and 

Purchaser,  10. 
See  also  infra,  705,  706. 

651.  Where  the  payment  of  the  purchase 


money  and  the  making  of  the  deed  are  to 
occur  simultaneously,  they  are  regarded  as 
concurrent  acts  which  disable  either  party 
from  putting  an  end  to  the  contract  with- 
out performance,  or  a  valid  offer  to  perform, 
on  his  part.  Frink  v.  Thomas,  20  Or.  265, 
25  Pac.  717,  12:  239 

652.  A  party  having  an  option  to  deliv- 
er property  under  a  contract  at  any  time 
between  certain  dates,  if  he  intends  to  treat 
the  time  of  performance  as  having  arrived, 
and  therefore  to  hold  a  repudiation  of  the 
agreement  by  the  vendee  before  the  last  day 
of  performance  has  arrived  as  a  breach 
thereof,  must  give  notice  to  the  vendee  of 
his  exercise  of  his  option  for  an  earlier  de- 
livery; but  he  need  not  offer  to  perform,  aa 
that  is  waived  by  the  vendee's  refusal  to 
perform.  Stanford  v.  McGill,  6  N.  D.  536,  72 
N.  W.  938,  38:  760 
Recovery  for  extra  work. 

For  Corporation,  see  Corporations,  246. 
Evidence  of  Promise  to  Pay  for,  see  Evi- 
dence, 1622. 
See  also  infra,  839a. 

653.  A  written  contract  for  building  a 
house,  stipulating  that  no  charge  for  extra 
work  or  materials  shall  be  made,  unless  or- 
dered in  writing,  will  not  prevent  the  con- 
tractor from  recovering  for  extra  expense 
incurred  on  the  express  agreement  of  the 
other  party  to  pay  for  it,  or  on  his  request 
therefor,  under  circumstances  implying  a 
consent  to  be  liable  for  it,  irrespective  of 
the  written  contract.  Parties  cannot  by 
contract  tie  up  their  freedom  of  dealing  with 
each  other.  Bartlett  v.  Stanchfield,  148 
Mass.  394,  19  N.  E.  649,  2:  625 

b.  Excuse  for  Failure  of  Performance. 
1.  In  General. 

Ground  for  Discharge  of  Servant,  see  Mas- 
ter and  Servant,  37-41. 

Excuse  for  Employee's  Quitting  Work,  see 
Master  and  Servant,  48. 

Necessity  of  Pleading  Waiver  as  Excuse, 
see  Pleading,  500. 

Of  Contract  of  Sale,  see  Sale,  115,  116. 

Teacher's  Right  to  Salary  While  School  is 
Closed  During  Smallpox  Epidemic,  see 
Schools,  45-47. 

Bad  Bargain  as  Excuse,  see  Specific  Per- 
formance, 30. 

For  Editorial  Notes,  see  infra,  VIII.  §  42. 

654.  The  question  of  the  right  of  the  own- 
er to  insure  a  building  which  another  has 
contracted  to  repair  and  enlarge  has  no 
bearing  upon  the  question  of  the  liability 
of  the  contractor  to  comply  with  his  con- 
tract after  the  building  has  been  destroyed 
bv  lightning.  Krause  v.  Crothersville 
School  Trustees,  162  Ind.  278,  70  N.  E.  264, 

65:  111 

655.  A  state  cannot  resist  payment  of 
compensation  to  its  agent  who  has  under 
his  contract  with  it  become  entitled  thereto, 
on  the  srround  that  it  has  promised  the 
United  States  that  it  would  not  make  the 
payment.  Davis  v.  Com.  164  Mass.  241,  41 
N.'E.  292,  30:  743 


713 


CONTRACTS,  IV.   b,  2. 


656.  Failure  to  repair  leased  dams  or 
races  within  ten  days  after  the  water  has 
fallen  to  the  average  winter  stage,  as  re- 
quired by  a  contract  leasing  the  water 
power,  is  not  excused,  if  the  water  continues 
below  that  stage,  by  the  fact  that  the  work 
could  not  profitably  be  done  within  the  time 
agreed  upon.  Pengra  v.  Wheeler,  24  Or.  532, 
,34  Pac.  354,  21:  726 

657.  The  sale  of  steamers  afl^r  making  a 
contract  for  the  supply  of  coal  to  them  for 
one  year  will  not  relieve  from  the  obliga- 
tion to  take  the  coal  which  their  ordinary 
and  accustomed  use  required.  Wells  v. 
Alexandre,  130  K  Y.  642,  29  N.  E.  142, 

15:  218 
Doubts  as  to  solvency. 

658.  Doubts  as  to  the  solvency  of  a 
publishing  corporation  will  not  justify  the 
breach  of  a  contract  to  furnish  it  a  book  for 
publication.  C.  F.  Jewett  Pub.  Co.  v.  Butler, 
159  Mass.  517,  34  N.  E.  1087,  22:  253 
Disgrace. 

659.  The  disgrace  attaching  to  the  name 
of  a  corporation  on  account  of  the  conduct 
of  its  former  president  and  manager,  whose 
name  it  bears,  is  not  sufficient  ground  for 
breaking  a  contract  to  furnish  it  a  book  for 
publication.  C.  F.  Jewett  Pub.  Co.  v.  But- 
ler, 159  Mass.  517,  34  N.  E.  1087,  22:  253 
Failure  to  make  test. 

660.  Failure  of  the  purchaser  of  a  mare  to 
have  a  test  of  her  speed  as  compared  with 
that  of  another  one  owned  by  him,  made  by 
the  person  and  within  the  time  agreed  upon, 
because  the  mares  were  not  in  proper  condi- 
tion for  the  test,  or  to  have  the  test  made 
afterwards,  will  not  relieve  him  from  liabil- 
ity to  pay  an  extra  $100  in  case  she  is  as 
fast  as  the  other,  on  other  proof  of  this 
fact.  Deyo  v.  Hammond,  102  Mich.  122,  60 
N.  W.  455,  25:  719 

2.  Impossibility  of  Performance;   Inevitable 
Accident. 

See  also  infra,  817. 

For  Editorial  Xotes,  see  infra,  Vm.  §§  42, 
43. 

661.  A  contract  is  invalidated  by  the 
subsequent  enactment  of  police  regulations 
which  render  its  performance  illegal  as  to 
one  of  the  parties.  Jamieson  v.  Indiana 
Natural  Gas  &  O.  Co.  128  Ind.  555,  28  N.  E. 
76,  12:  652 

662.  The  impossibility  of  repairing  leased 
dams  or  races  ten  days  after  the  water  falls 
to  the  average  winter  stage,  as  agreed  upon 
by  the  lease,  because  the  water  immediately 
rises  again  and  continues  high,  releases  the 
lessor  from  liability  for  breach  of  the  cove- 
nant, if  he  makes  the  repairs  as  soon  as  pos- 
sible. Pengra  v.  Wheeler,  24  Or.  532,  34 
Pac.  354,  21 :  726 
Early  frost. 

663.  Upon  a  contract  to  raise,  sell,  and 
deliver  a  specified  quantity  of  beans  of  vari- 
ous kinds,  no  particular  land  upon  which 
they  are  to  be  raised  being  specified,  the 
fact  that  unexpected  early  frosts  so  far  de- 
stroy the  party's  crop  that  he  cannot  deliver 
the  whole  quantity  specified  does  not  ex- 
cuse   his    nonperformance    of    the   contract. 


Anderson  v.   May,  50  Minn.  280,  52  N.  W. 
530,  17:555 

Heavy  rains. 

664.  Heavy  rains  preventing  a  person 
from  plowing  land  in  the  fall,  as  he  agreed 
to  do,  in  order  to  fit  it  for  setting  out  grape 
vines  in  the  spring,  will  not  allow  him  to 
recover  for  his  labor  in  plowing  the  land 
in  February  and  setting  out  the  vines  there- 
after, where  they  prove  to  be  a  failure. 
Remy  v.  Olds  (Cal.)  No  Off.  Rep.  34  Pac. 
216,  21:645 
Inevitable  accident;  act  of  God. 

What  Act  of  God  will  Excuse  Nonperform- 
ance, see  Act  of  God. 

Discharge  of  Covenant  to  Repair  Building, 
see  Covenant,  115-117. 

See  also  infra,  674;  Sale,  117,  118. 

665.  Inevitable  accident  will  not  excuse 
the  performance  of  a  contract,  where  its 
essential  purposes  are  still  capable  of  sub- 
stantial accomplivshment,  though  literal  per- 
formance has  become  physically  impossible. 
Board  of  Education  v.  Townsend,  63  Ohio 
St.  514,  59  N.  E.  223,  52:868 

666.  The  act  of  God  cannot  excuse  failure 
to  perform  a  contract,  so  as  to  give  a  person 
the  right  to  recover  upon  it  without  per- 
formance, although  for  the  purpose  of  a  de- 
fense nonperformance  might  be  thorebv 
-xcused.  Remy  v.  Olds  (Cal.)  No  Off.  Rep. 
34  Pac.   216,  21 :  645 

667.  When  a  party  has  one  or  the  other 
of  two  modes  of  performing  a  contract,  and 
one  of  them  becomes  impossible  by  the  act 
of  God,  he  is  boynd  to  perform  it  in  the 
other  mode.  Board  of  Education  v.  Town- 
send,  63  Ohio  St.  514,  .59  N.  E.  223,     52:  868 

668.  The  prevention,  by  the  act  of  God,  of 
full  performance  of  an  entire  contract,  will 
permit  a  recovery  upon  an  implied  assump- 
sit for  personal  services  already  rendered 
in  part  performance  of  the  contract  Par- 
ker V.  Macomber,  17  R.  I.  674,  24  Atl.  464, 

10:  8.53 

669.  On  the  destruction  by  fire  of  a  build- 
ing toAvards  the  erection  of  which  the  con- 
tractor is  to  contribute  only  part  of  the 
labor  and  materials,  while  the  owner  is  to 
do  the  grading,  excavating,  stone  work, 
brick  work,  painting,  and  plumbing,  the  con- 
tractor is  discharged  from  his  obligation, 
and  can  recover  on  an  implied  assumpsit  for 
the  value  of  what  he  has  alreadv  done. 
Butterfield  v.  Byron,  153  Mass.  517,  27  N.  E. 
667,  12:  571 

670.  The  destruction,  by  fire,  of  milk  and 
its  products,  while  in  possession  of  a  bailee 
who  has  contracted  to  manufacture  and  sell 
butter  and  cheese,  relieves  him  from  his 
contract  so  far  as  the  subject  thereof  is  de- 
stroyed bv  the  fire,  if  it  occurred  without 
his  fault. "  Stewart  v.  Stone,  127  N.  Y.  500. 
28  N.  E.  595,  14:  215 

671.  \^Tiere,  in  consideration  of  the  con- 
veyance by  a  board  of  education  of  a  lot  on 
which  were  situated  a  sehoolhouse  and  other 
buildings  suitable  for  a  public  school,  the 
vendee  agreed  to  convey  to  the  board  an- 
other lot,  then  vacant,  and  to  remove,  re- 
construct, and  rebuild  thereon  the  school- 
house,   so  that   it   would  be  in   a   suitable 


CONTRACTS,  IV.  b,  3.  c,  1, 


713 


and  proper  condition  for  school  purposes,  it 
is  not  a  defense  to  an  action  for  damages 
for  failure  to  perform  the  contract  with  re- 
spect to  the  schoolhouse,  that  it  was  blown 
down  by  a  storm  and  could  not,  on  that 
account,  be  removed  as  a  standing  building. 
The  contract  was  nevertheless  capable  of 
substantial  performance.  Board  of  Educa- 
tion V.  Townsend,  63  Ohio  St.  514,  59  N.  E. 
223,  52:  868 

Dissolution  of  partnership. 

672.  A  contract  by  a  partnership  with  an 
employee  for  personal  services  in  the  cur- 
rent business  of  the  firm  for  one  year  at 
a  given  rate  per  month  is  dissolved  by  a 
dissolution  by  the  death  of  one  of  the  part- 
ners within  the  vear.  Griggs  v.  Swift,  82 
Ga.  392.  9  S.  E.  1*062,  5:  405 

673.  On  a  contract  by  a  partndisship  with 
an  employee  for  services  for  one  year  at  a 
given  rate  per  month,  which  contract  is 
dissolved  by  the  death  of  a  member  within 
the  year,  there  can  be  no  recovery  for  serv- 
ices which  were  never  in  fact  rendered, 
but  which  wotild  have  been  rendered  had 
not  the  surviving  partner  discharged  him 
after  the  dissolution.  Id. 

674.  A  firm  that  has  engaged  a  clerk  for 
a  year  is  not  absolved  from  its  contract  and 
obligation  to  retain  his  services  at  the 
agreed  salary  throughout  the  year,  by  the 
fact  that  its  business  house  and  stock  of 
goods  are  destroyed  by  fire,  and  by  the 
firm's  dissolution  and  retirement  from  busi- 
ness, where  the  contract  does  not  reserve  the 
power  to  discharge  him  for  such  reasons. 
Madden  v.  Jacobs,  52  La.  Ann.  2107,  28  So. 
225,  50:  827 


3.  Prevention  or  Hindrance  by  Other  Party. 


See  also  infra,  753,  754,  808,  812,  813. 
For  Editorial  Notes,  see  infra,  VIII.  §  43. 

675.  The  party  who  commits  the  first 
breach  of  a  contract  cannot  maintain  an 
action  against  the  other  for  a  subsequent 
failure  to  perform.  Loudenback  Fertilizer 
Co.  V.  Tennessee  Phosphate  Co.  58  C.  C.  A. 
220.  121  Fed.  298,  61 :  402 

676.  A  contractor  to  perform  certain  work 
cannot  proceed  with  the  work  and  collect 
the  full  contract  price  after  express  refusal 
of  one  of  the  other  parties  to  perform  on 
his  part,  although  the  contract  was  made 
with  several  persons,  but  one  of  whom  has 
refused  to  carry  it  out.  Davis  v.  Bronson, 
2  N.  D.  300,  50  N.  W.  836,  16:  655 

077.  A  person  prevented  from  continuing 
his  contract  by  the  arbitrary  act  of  the 
other  party  may  disregard  it,  and  recover 
the  value  of  his  services  rendered  in  partial 
performance  of  it.  Parker  v.  Macomber, 
17  R.  I.  674,  24  Atl.  464,  16:  858 

678.  Delay  of  a  city  in  preparing  piers 
upon  which  a  bridge  is  to  be  erected  by  a 
contractor,  thereby  hindering  his  work,  will 
prevent  any  deduction  for  consequent  delay 
in  its  completion,  although  his  contract  pro- 
vides for  deductions  from  the  contract 
price   in   case   of   failure    to    complete    the 


work    within    a    certain    time.     King    Iron 
Bridge  &  Mfg.  Co.  v.  St.  Louis,  43  Fed.  768, 

10:  826 

679.  A  mine  owner  who  undertakes  to  de- 
liver a  portion  of  the  ore  taken  from  the 
mine  to  certain  persons  in  consideration  of 
their  constructing  a  level  to  drain  the  mine 
in  such  a  manner  that  the  ore  can  be  raised 
without  trouble  or  inconvenience  from  water 
is  not  discharged  from  his  obligation  by  the 
fact  that  the  level  is  permitted  to  become 
and  remain  out  of  repair,  if  he  is  not  at  all 
prejudiced  thereby,  the  level  remaining  suf- 
ficient for  all  practical  purposes.  Crawford 
V.  Witherbee,  77  Wis.  419,  46  N.  W.  545, 

9:  561 

680.  A  contractor  employed  to  take  down 
portions  of  a  building,  whose  employees  be- 
came demoralized  and  refused  to  work  in 
the  building  on  account  of  its  weakened 
and  dangerous  condition,  resulting  from  the 
negligence  of  the  owner  and  his  architect  in 
stripping  off  the  sheathing,  purlines,  rafters, 
etc.,  so  that  spars  fell  and  killed  some  of 
the  contractor's  employees,  may  abandon 
his  contract  and  recover  damages  against 
the  owner.  Lynch  v.  Sellers,  41  La.  Ann. 
375,  6  So.  561,  5:682 

c.  Incomplete    Performance;    Sufficiency    of 
Performance. 

1.  Right  of  Recovery  on  Part  Performance. 

Proper  Remedy  for,  see  Election  of  Reme- 
dies, 2. 

Employee  Leaving  Before  Contract  Per- 
formed, see  Master  and  Servant,  26- 
28. 

See  also  supra,  290-301,  668;  infra,  702,  7S7. 

For  Editorial  Notes,  see  infra,  VIII.  §§  42,. 
43. 

681.  An  entire  contract  for  services  can- 
not be  apportioned  so  as  to  permit  a  re- 
covery for  part  performance  by  one  who  i» 
guilty  of  a  breach  of  the  contract.  Timber- 
lake  V.  Thayer,  71  Miss.  279,  14  So.  446, 

24:  231 

682.  The  general  rule  that  where  a  con- 
tract is  entire  the  consideration  moving 
from  each  party  to  the  other  is  entire,  full 
performance  by  one  being  requisite  to  his 
claiming  any  benefit  under  the  contract  from 
the  other,  does  not  apply  to  a  servant  fail- 
ing to  complete  his  contract  because  dis- 
charged by  the  master,  although  the  dis- 
charge is  rightful.  Hildebrand  v.  American 
Fine  Art  Co.  199  Wis.  171,  85  N.  W.  268, 

53:  82() 

683.  To  entitle  a  party  to  recover  for  part 
performance  of  a  contract,  or  for  perform- 
ance in  a  different  way  from  that  contract- 
ed for,  the  circumstances  must  be  such  that 
a  new  contract  may  be  implied  from  the 
conduct  of  the  parties,  to  pay  a  compensa- 
tion for  what  has  been  done.  The  mere 
fact  that  partial  performance  is  beneficial 
to  a  partv  is  not  enough  to  imply  a  promise 
to  pay  for  it.  Elliott  v.  Caldwell,  43  ilinn. 
357.  45  N.  W.  845,  9:  5^ 

684.  One  employed  to  go  to  a  certain  place 


ri4 


CONTRACTS,  IV.  c,  2. 


and  organize  a  corporation,  under  an  agree- 
ment for  certain  capital  stock  in  cafe  he  was 
successful,  who  went  there  and  devoted  his 
services  to  the  organization  of  such  com- 
pany, and  would  have  succeeded  had  his  em- 
ployer not  recalled  and  discharged  him,  is 
entitled  to  recover  what  his  time  was  worth 
while  there,  and  reasonable  expenses.  Cad- 
man  V.  Markle,  76  Mich.  448,  43  K  W.  315, 

5:  707 

685.  Where  the  completion  of  a  contract 
is  not  controverted,  but  the  defense  is  that 
it  was  not  done  in  a  workmanlike  manner, 
the  value  of  the  work  done  and  materials 
furnished  may  be  recovered,  where  the  par- 
ties cannot  rescind  and  stand  in  statu  quo, 
hut  one  of  them  must  derive  benefit  from 
the  labor  of  the  other.  Katz  v.  Bedford, 
77   Cal.  319,   19  Pac.  523,  1:826 

686.  When  a  contract  has  been  performed 
in  a  substantial  part,  and  the  other  party 
has  voluntarily  accepted  and  received  the 
benefit  of  the  part  performance,  knowing 
that  the  contract  is  not  being  fully  per- 
formed, the  performance  of  the  residue  can- 
not be  insisted  on  as  a  condition  precedent 
to  payment  for  the  benefits  received  from 
the  part  performance.  Wiley  v.  Athol,  150 
Mass.  426,  23  N.  E.  311,  6:342 

687.  The  difficulty  of.  determining  the 
measure  of  damages  for  failure  fully  to 
comply  with  the  terms  of  a  contract  for  a 
water  supply  will  not  prevent  a  substantial 
part  performance  from  changing  a  warranty 
which  constitutes  a  condition  precedent  into 
an  independent  covenant.  Id. 

688.  A  party  to  a  contract  who  has  con- 
ferred upan  the  other  party  thereto  the 
benefits  of  a  substantial  partial  perform- 
ance thereof,  but  who  has  not  completely 
performed  the  agreement,  may  maintain  an 
action  against  the  other  party  for  specific 
performance,  or  for  damages  for  the  latter's 
failure  to  perform,  upon  plea  and  proof  of 
his  own  partial  performance,  without  plea 
or  proof  of  his  complete  performance;  and 
the  defendant  in  such  an  action  may  recoup 
his  damages  for  the  plaintiff's  failure  of 
complete  performance,  or  may  recover  them 
in  an  independent  action  therefor.  KaufT- 
man  v.  Raeder,  47  C.  C.  A.  278,  108  Fed.  171, 

54:  247 

689.  On  the  termination  by  the  insol- 
vency and  dissolution  of  a  corporation,  of  an 
executory  contract  with  it  necessitating,  in 
its  execution,  work,  labor,  and  the  ex- 
penditure of  money  for  materials,  machin- 
ery, etc.,  and  the  construction  of  roads  and 
other  improvements,  as  well  as  in  carrying 
on  the  work,  the  contractor  is  entitled  to 
compensation  for  services  rendered  by  him  ' 
in  pursuance  of  the  contract  until  the  date 
of  its  termination,  and  to  reimbursement  for 
his  actual  and  necessary  outlay  and  expen- 
ses, subject  to  a  deduction  of  all  sums  paid 
to  him  by  the  corporation,  and  of  the  value 
of  such  materials,  machinery,  and  other 
property  on  hand.  Griffith  v.  Blackwater 
Boom  &  L.  Co.  55  W.  Va.  604,  48  S.  K.  44'. 

69:  124 


Destruction  of  property  before  completion. 
Effect  of  Loss  by  Fire  after  Sale  of  Land, 

see  "Vendor  and  Purchaser,  13,  14. 
See  also  supra,  669-671. 
For  Editorial  Notes,  see  infra,  VIII.  §  42. 

690.  Recovery  for  the  work  done  in  the 
partial  performance  of  a  contract  to  move  a 
building  may  be  had  where  it  was  entirely 
consumed  by  fire  after  the  contract  was 
partly  performed.  Angus  v.  Scully,  176 
Mass.  357,  57  N.  E.  674,  49 :  562 

691.  One  who  has  contracted  to  repair  a 
house  for  an  entire  consideration  cannot, 
in  case  the  house  is  destroyed  by  lightning 
when  the  work  is  nearly  completed,  so  that 
he  is  not  entitled  to  enforce  payment  under 
the  contract,  recover  the  value  of  the  work 
done  under  a  quantum  meruit.  Krause  v. 
Crothersville  School  Trustees,  162  Ind.  278, 
70  N.  E.  264,  65:  111 

692.  One  who  has  only  partially  performed 
his  contract  to  install,  for  a  gross  sum,  a 
heating  plant  in  a  building,  to  consist  of 
boilers,  radiators,  and  piping,  at  the  time 
the  building  is  destroyed  by  fire  without  the 
fault  of  either  party,  must  bear  the  loss,  un- 
less he  shows  that  the  material  already  in 
place  could  not  reasonably  have  been  re- 
moved for  a  reasonable  sum,  so  that  the 
owner  of  the  building  must  be  regarded  as 
having  accepted  it  as  tne  work  progressed. 
Dame  v.  Wood,  73  N.  H.  222,  60  Atl.  744, 

70:  133 

693.  Provision  in  a  contract  for  the  repair 
of,  and  addition  to,  a  building,  that  the 
owner  "shall  not  be  in  any  manner  respon- 
sible for  any  loss  or  damage  that  shall,  or 
may,  happen  to  said  work  or  any  part  there- 
of," does  not  throw  the  loss  caused  by  the 
accidental  destruction  of  the  buildins:  by 
lightning  after  the  work  is  nearly  completed 
upon  the  contractor.  Krause  v.  Crothers- 
ville School  Trustees,  162  Ind.  278,  70  N. 
E.  264,  63:  111 

694.  Where  one  who  has  undertaken  to 
repair  and  add  to  a  building  has  paid  out, 
in  the  execution  of  his  contract,  more  than 
he  has  received  at  the  time  of  the  destruc- 
tion of  the  building  by  lightning,  such  pay- 
ments which  have  entered  into  the  value  of 
the  property  must  be  treated  as  an  execu- 
tion of  the  contract  pro  tanto.  Id. 

2.  Sufficiency   of   Performance. 
For  Editorial  Notes,  see  infra,  VIII.  §  40. 

695.  All  that  is  ordinarily  required  of  a 
party  to  a  contract  who  has  agreed  to  de- 
liver personal  property  upon  the  payment 
of  a  debt  or  price  is  that  he  shall  put  the 
property  in  some  convenient  place,  subject 
to  the  disposal  of  the  payer  upon  his  com- 
pliance with  the  terms  of  the  contract,  and 
that  he  shall  notify  the  promisor  of  the 
fact.  Kauffman  v.  Raeder,  47  C.  C.  A.  278, 
108   Fed.   171,  54:247 

600.  Shipment  of  goods  which  do  not  con- 
stitute a  full  cargo  is  sufficiently  made  by 
placing  them  on  board  the  vessel  bound  for 
the  intended  port  and  engaged  in  an  honest 
effort    to    obtain    a    cargo    for    such    port. 


CONTRACTS,  IV.  c,  3. 


715 


Mora  y  Ledon  v.  Havemeyer,  121  N.  Y.  179, 
24  N.  E.  297,  8:  245 

C97.  Jiinployment  for  a  year  is  a  fuliil- 
ment  of  a  contract  to  give  an  attorney 
permanent  employment  in  consideration  of 
services  rendered  in  the  formation  of  a  cor- 
poration, since  the  contract  is  indefinite  and 
terminable  at  the  will  of  eitli  r  party.  Sul- 
livan V.  Detroit  Y.  &  A.  A.  R.  Co.  135  Mich, 
6G1,  98  N.  W.  756,  C4:  C73 

6D8.  An  agreement  by  a  railroad  company, 
in  consideration  of  a  right  of  way,  to  estab- 
lish a  depot  on  the  land,  is  complied  with 
by  establishing  the  station  and  maintain- 
ing it  upon  the  land  for  thirty-six  years,  al- 
though the  depot  is  then  removed  because 
r{  the  exigencies  of  business.  Texas  &  P. 
R.  Co.  v.  Scott,  23  C.  C.  A.  424,  41  U.  S. 
App.   624,  77   Fed.  726,  ',        37:94 

699.  Issuing  5  cards,  each  good  for  20 
crossings,  is  a  substantial  compliance  by  a 
bridge  company  with  a  contract  to  sell  100 
tickets  for  $1.  Newport  v.  Newport  &  C. 
nvnhre  Co.  90  Ky.  193,  13  S.  W.  720,      8:  484 

700.  Tliat  the  light  complies  with  the  con- 
tract at  the  moment  the  e(]uipment  is  com- 
pleted will  not  entitle  the  seller  to  the 
price  under  a  contract  to  furnish  an  electric- 
light  equipment  of  certain  power,  which  pro- 
vides for  payment  when  the  work  is  "found 
to  be  in  good  working  order,"  if  a  practical 
test  within  a  reasonable  time  thereafter 
demonstrates  that  the  required  power  has 
not  been  attained.  Edison  General  Electric 
Co.  v.  Canadian  P.  Nav.  Co.  8  Wash.  370,  ;^6 
Pac.  260,  24:  315 

701.  If  a  person  contracts  with  another 
to  obtain  options  for  that  other  to  purchase 
real  estate  in  case  he  shall,  upon  examina- 
tion thereof,  elect  to  do  so,  and  such  person, 
pursuant  to  his  obligation,  negotiates  with 
a  third  person  to  obtain  such  an  option,  and 
thereby  brings  to  such  other's  attention  the 
subject  of  the  transaction  in  aid  of  enabling 
him  to  obtain  the  land  if  he  desires  to  do 
so,  and,  before  a  formal  option  shall  have 
been  obtained,  such  other  concludes  to  make 
the  purchase,  and  does  so,  he  thereby  be- 
comes liable  to  such  person  as  upon  a  full 
performance  of  his  agreement.  Emerson  v. 
>«lash,  124  Wis.  369,  102  N.  W.  921,  70:  326 

702.  Substantial  performance  of  a  build- 
ing contract  requiring  girders  of  a  certain 
length  and  properly  placed,  and  a  wooden 
partition  on  a  brick  wall  in  the  cellar  for 
wliich  recovery  may  be  had  on  the  allowance 
of  compensation  for  defects,  is  not  made 
where  these  things  are  not  done  and  their 
omission  constitutes  structural  defects  of 
so  essential  a  character  that  they  cannot  be 
remedied  without  partial  reconstruction  of 
the  buildmor.  Spence  v.  Ham,  163  N.  Y.  220, 
57  N.  E.  412.  51 :  238 

703.  The  doctrine  of  "substantial  com- 
pliance" with  building  contracts  does  not 
apply  when  the  omissions  or  departures 
from  the  contract  are  intentional,  and  so 
substantial  as  not  to  be  capable  of  remedy, 
and  that  an  allowance  out  of  the  contract 
price  would  not  give  the  owner  substan- 
tially what  he  contracted  for.  Elliott  v. 
Caldwell,  43  Minn.  357,  45  N.  W.  845,    9:  52 


704.  Under  a  contract  by  which  a  person 
expressly  covenants  to  keep  tlie  infant 
daughter  of  another  in  his  own  family,  as 
one  of  his  children,  to  provide  her  with  suit- 
able food,  clothing,  schooling,  and  medical 
attention  should  she  require  it,  and  in  case 
of  her  death  to  pay  her  funeral  expenses,  he 
has  no  legal  riglit  to  confine  her  in  the 
county  asylum  among  the  common  paupers 
because  she  becomes  insane.  It  is  his  duty, 
if  he  has  no  suitable  place  to  keep  her,  to 
prepare  one.  Vancleave  v.  Clark,  118  Ind. 
61,  20  N.  E.  527,  3:519 
sufficiency  of  tender  or  offer  to  perform. 
See  also  Vendor  and  Purchaser,  10. 

705.  A  sufficient  offer  to  perform  a  con- 
tract is  made  where,  nine  parties  having 
agreed  to  pay  a  certain  sum  and  interest  to 
plaintiff  on  or  before  a  certain  day,  he 
agreeing  to  assign  and  deliver  to  them  cer- 
tain stock  in  a  corporation  upon  payment  of 
the^  money,  plaintiff  deposits  the  stock  in  a 
bank  in  the  city  where  the  contract  was 
made  and  more  than  forty  days  before  the 
day  named  causes  the  parties  to  be  notified 
that  the  stock  is  in  the  bank,  subject  to 
their  disposition,  upon  payment  of  the  debt, 
and  some  of  the  parties  reside  in  the  city, 
while  others  reside  at  a  place  more  than 
300  miles  distant.  Kauffman  v.  Raeder,  47 
C.  C.  A.  278,   108  Fed.   171,  54:  247 

706.  i'here  is  a  sufficient  tender  on  the 
part  of  the  seller  in  a  contract  by  which  one 
agrees  to  procure  for  another  a  bona  fide  bid 
of  a  certain  amount  for  certain  stock  with- 
in twelve  months,  or  at  the  end  of  that  time 
to  take  the  stock  himself  at  an  agreed  price 
at  the  seller's  option,  if  the  seller  mails  a 
notice  which  must,  by  due  course  of  mail, 
reach  the  buyer  one  year  from  the  date  of 
the  agreement,  and  which  informs  the  buyer 
that  he  is  expected  to  take  the  stock,  which 
is  actually  tendered  to  him  four  days  there- 
after and  payment  demanded, — especially 
where  the  buyer  makes  a  general  refusal 
to  comply  with  the  agreement.  Duchemin 
v.  Kendall,  149  Mass.  171,  22  N.  E.  242, 

3:  784 

3.  Acceptance;  Waiver  of  Objections. 

Acceptance. 

Liability   for  Failure  to   Accept,  see   infra, 

826. 
Estoppel  by,  see  Estoppel,  239, 
By  Purchaser,  see  Sale,  I.  d. 
See  also  infra,  712. 
For  J^ditorial  Notes,  see  infra,  VIII,  §  40.   • 

707.  Taking  possession  of  a  vessel  which 
is  being  built  by  a  contractor  before  its 
completion  or  the  expiration  of  the  time 
therefor,  merely  because  the  contractor  has 
made  an  assignment  for  creditors,  though  it 
might  be  treated  by  his  assignee  as  a  tres- 
pass, may  be  regarded  instead,  at  his 
option,  as  an  acceptance  under  the  contract. 
Vandegrift  v.  Cowles  Engineering  Co.  161 
N.  Y.  43.5.  55  N.  E.  941,  48:  685 

708.  The  mere  fact  that  a  building  re- 
mains on  the  land  and  the  owner  enjoys  the 
benefit  of  it.  he  having  no  option  to  reject 
it,  is  not  such  an  acceptance  as  would  imnly 
a  promise  to  pay  for  it,  where  the  builder 


ri6 


CONTRACTS,  IV.  d. 


under  a  special  contract  has  failed  to  com- 
plete it,  or  completes  it  in  a  manner  not 
substantially  conforming  to  his  contract. 
Elliott  V.  Caldwell,  43  Minn.  357,  45  N.  W. 
845,  9:  52 

709.  Taking  possession  of  real  estate, 
after  work  in  constructing  buildings  has 
been  done  thereon  and  the  contractor  has 
left  the  premises,  and  appropriating  to  the 
owner's  use  and  benefit  the  labor  or  ma- 
terials of  the  contractor,  does  not  consti- 
tute an  unequivocal  acceptance  of  the  work, 
although  it  may  be  taken  into  consideration 
in  determining  that  matter.  Hanley  v. 
Walker,  79  Mich.  607,  45  N.  W.  57,       8:  207 

710.  Lien  creditors  are  concluded  as  to  the 
sufficiency  of  the  completion  of  a  building, 
in  the  absence  of  fraud  or  mistake,  by  its 
acceptance  by  the  architect  and  the  owner. 
Oriental  Hotel  Co.  v.  Griffiths,  88  Tex.  574, 
33  S.  W.  652,  30:  765 
Waiver  or  estoppel.  , 
See  also  supra,  652;   infra,  825. 

For  Editorial  Notes,  see  infra,  VIII.  §§  40, 
42. 

711.  Objection  to  a  variance  between  a 
lease  agreed  upon  and  the  one  delivered  is 
waived  by  refusal  to  accept  any  lease. 
Freeland  v.  Ritz,  154  Mass.  257.  28  N.  E. 
226,  12:  561 

712.  Where  an  order  was  given  for  print- 
ing cards  conditional  on  tlie  acceptance  of 
a  finished  proof,  where  such  proof  has  been 
accepted  and  directions  given  to  print,  an 
error  in  the  sample  proof,  which  is  perpetu- 
ated in  the  cards  printed  to  fill  the  order,  is 
no  groimd  for  refusing  to  accept  them. 
(Jills  Lithographic  &  L.  P.  Co.  v.  Chase,  149 
Mass.  459,  21  N.  E.  765,  4:  480 

713.  A  waiver  of  claim  to  compensation, 
or  estoppel  from  asserting  it  imder  a  con- 
tract to  collect  the  direct  tax  returned  by 
the  general  government  for  a  state  which 
liad  paid  the  tax  out  of  its  treasury,  for  a 
percentage  of  the  amount  received,  is  not 
worked  by  consenting  to  its  receipt  on  con- 
dition that  no  part  of  it  shall  be  used  to 
pay  the  claimant,  since  such  consent  will  at 
most  amount  to  an  agreement  that  he  shall 
be  paid  in  some  other  way.  Davis  v.  Com. 
164  Mass.  241,  41  N.  E.  292,  ,  30:  743 

714.  Departure  from  specifications  in  ma- 
chines manvifactured  under  a  contract  will 
be  waived  by  taking  them  and  failing  to 
give  timely  notice  of  nonacceptance  because 
of  noncompliance  with  the  contract.  J. 
Thompson  Mfg.  Co.  v.  Gunderson,  106  Wis. 
449,  82  N.  W.  299,  49:  859 

715.  If  machines  manufactured  under  a 
contract  depart  from  the  specifications,  with 
the  knowledge  and  consent  of  the  pur- 
chaser, he  cannot  hold  the  manufacturer  re- 
sponsible in  damages  for  their  failure  to 
work.  Id. 

d.  Condition;  Certificate  of  Performance. 

Submitting  to  Arbitration  for  Failure  to 
Complete  in  Time,  see  Arbitration,  4. 

Condition  in  Contribution  for  Buildinj? 
Church.  Presumption  as  to,  see  Evi- 
dence, 340. 

Allegations  as  to,  see  Pleading,  271,  274. 


Condition  that  Employee  shall  Give  Satis- 
faction, see  Master  and  Servant,  34. 

Seller's  Agreement  to  Give  Satisfaction,  see 
Sale,  3,  4. 

Condition  for  Perfecting  Title  to  Satisfy  At- 
torney, see  Vendor  and  Purchaser,  52. 

See  also  supra,  710;  infra,  752,  822. 

For  Editorial  Notes,  see  infra,  VIII.  §§  39, 
40. 

716.  An  agreement  by  a  manufacturing 
corporation  that,  subject  to  conditions 
named  and  for  the  purpose  of  securing  the 
continuous  patronage  of  a  purchaser  as 
payee,  the  company  will,  in  six  months,, 
pay  to  the  purchaser  a  certain  amount, 
being  a  rebate  on  a  purchase  that  day 
made,  to  be  valid  and  payable  only  on  con- 
dition that  the  purchaser,  his  successors  and 
assigns,  shall  have  bought  their  supply  of 
such  goods  as  are  produced  by  the  company 
exclusively  from  one  or  more  dealers  named, 
— cannot  be  enforced  even  in  equity  with- 
out the  performance  of  the  condition,  unless 
waived  or  excused,  upon  the  ground  that  the 
condition  is  affixed  as  a  means  of  carrj'ing 
out  the  illegal  purposes  of  a  monopoly,  as 
the  condition  is  the  sole  consideration  of  the 
promise,  and  if  illegal  the  promise  falls 
with  it.  Dannehy  v.  McNulta,  30  C.  C.  A. 
422,  59  U.  S.  App.  264,  86  Fed.  825,  41 :  609 
Arbitrary  rejection. 

717.  A  clause  in  a  contract,  obliging  the 
manufacturing  company  to  furnish  engines 
if  the  exigencies  of  its  business  permitted, 
gave  it  no  arbitrary  right  to  refuse.  It 
must  have  a  valid  reason  for  the  refusal, 
and  its  invalidity  must  be  shown  by  evi- 
dence. Taylor  Mfg.  Co.  v.  Hatcher,  39  Fed. 
440,  3:  587 

718.  The  mere  expression  of  dissatisfac- 
tion with  an  article  furnished  under  a  con- 
tract providing  that  it  shall  be  satisfactory- 
will  not  justify  a  termination  of  the  con- 
tract, if  there  was  not  an  actual  dissatis- 
faction. Worthington  v.  Gwin,  119  Ala.  4j4, 
24  So.  739,  43:  382 

719.  A  just  claim  under  a  contract  which 
provides  that  the  work  shall  be  done  to  the 
entire  satisfaction  of  the  other  party  can- 
not be  defeated  by  the  latter  by  arbitrarily 
and  unreasonably  saying  he  is  not  satisfied. 
Dall  V.  Noble,  116  N.  Y.  230,  22  N.  E.  406, 

5:  .'i.'>4 

720.  A  promise  to  pay  an  acknowlt'd''  ' 
indebtedness  at  such  times  and  in  such  sr..,i* 
as  the  debtor  "might  feel  able  to  pay"  cre- 
ates a  legal  and  moral  obligation  to  pay 
when  the  debtor  is  able,  and,  although  the 
debtor  is  made  the  judge  of  that  fact,  his 
judgment  must  be  honestly  exercised.  Pistel 
V.  Imperial  Mut.  L.  Ins.  Co.  88  Md.  552,  42 
Atl.  210,  43:  219 
Necessity  of  certificate. 

For  Editorial  Notes,  see  infra,  VIIT.  §  40. 

721.  Recovery  upon  a  quantum  meruit 
cannot  be  based  on  a  contract  which  makes 
a  certificate  of  architects  a  condition  prece- 
dent to  a  right  of  action,  where  the  cer- 
Mficate  has  not  been  obtained.  Hanley  v. 
Walker.  79  Mich.  607.  45  N.  W.  57,        8:'  207 

722.  Remedying   the   defects   pointed  out 


CONTRACTS.   IV.  e. 


717 


by  architects,  but  not  in  the  ways  suggest- 
ed by  them,  and  without  obtaining  from 
them  the  certificate  made  by  the  contract 
a  condition  precedent  to  a  right  of  action, 
cannot  give  a  cause  of  action.  Plaintiffs 
cannot  substitute  their  own  assertion,  or  the 
opinion  of  the  jury,  for  the  decision  of  the 
architects.  Id. 

723.  An  architect's  certificate  that  a  build- 
ing has  been  actually  completed,  provided 
for  in  the  building  contract,  need  not  be  ob- 
tained by  one  who  furnished  materials  to 
the  contractor,  where  the  latter  abandons 
the  work  and  the  owner  finishes  the  same  in 
accordance  with  a  provision  of  the  contract. 
Camnbell  v.  Coon.  149  N.  Y.  556,  44  N.  E. 
300,  '  38:  410 
Conclusiveness  and  sufficiency  o^  certificate. 
See  also  Evidence,  2305. 

For  Editorial  Notes,  see  infra,  VIII.  §  40. 

724.  Certificates  of  architects  to  whose  de- 
cision, by  a  contract,  all  differences  are  to 
be  referred,  with  no  right  of  appeal  there- 
from, are  binding  upon  the  parties,  in  the 
absence  of  bad  faith  on  their  part  of  con- 
cealment of  defects  by  the  builder.  Boettler 
V.  Tendick,  73  Tex.  488,  11  S.  W.  497,  5:  270 
Hanley  v.  Walker.  79  Mich.  607,  45  N.  W. 
57,  8:207 

725.  Evidence  by  witnesses  that  the  work 
OH  a  house  was  not  done  in  a  workmanlike 
manner  is  inadmissible  in  an  action  for 
damages  for  failure  to  construct  the  house 
according  to  contract,  where  the  architect 
has  given  the  certificate  required  by  the 
contract  as  to  the  character  of  the  work,  and 
there  is  no  evidence  of  fraud  or  collusion  on 
his  part.  Boettler  v.  Tendick,  73  Te.x.  488, 
11   S.  W.  497.  5:  270 

72().  The  certificate  of  the  proper  oflRcer 
that  certain  work  is  necessary  to  complete 
or  perfect  a  particular  job  which  is  being 
performed  for  the  city  of  New  York,  or 
that  any  supply  is  needful  for  any  par- 
ticular purpose,  is  conclusive  as  between  the 
one  contracting  to  furnish  such  work  or 
supply  and  the  city,  where  there  is  no  alle- 
gation of  fraud,  and  where  the  facts  indi- 
cate that  the  necessity  certified  is  a  possi- 
ble incident  of-  such  work  or  supplv. 
Bradv  v.  New  York.  112  N.  Y.  480,  20  N. 
E.   390.  2:  751 

727.  The  execution  and  delivery  of  an 
architect's  certificate  under  a  building  con- 
tract providing  for  payment  upon  the  pre- 
sentation of  such  certificate  entitles  the 
contractor  to  payment,  although  the  cer- 
tificate is  not  kept  by  him,  but  is  handed 
back  to  the  architect,  and  no  presentation  is 
made  to  the  owner.  Arnold  v.  Bournique, 
144   111.    1.32,   33  N.   E.  530.  20:  493 

728.  A  certificate  by  a  city  engineer  stat- 
ing that  the  contractor  "has  completed  his 
contract  according  to  the  specifications,  and 
is  entitled  to  the  full  contract  price."  is  suf- 
ficient in  form  to  show  compliance  with  a 
contract  to  do  certain  work  for  the  city, 
which  provides  that  the  contractor  "shall 
perform  the  work  in  a  good,  workmanlike, 
and  substantial  manner,  to  the  satisfaction, 
and  under  the  direction,  of  the  city  engineer. 


McGuire  v.  Rapid  City,  6  Dak.   34tJ,  43  N. 
W.    706,  5:  752 

729.  When  a  building  contract  provided 
that  the  decision  of  the  architect  should  be 
conclusive  on  the  question  whether  work 
done  in  the  course  of  the  erection  of  the 
building  was  within  the  specifications,  or 
not,  it  was  an  implication,  indispensable  to 
the  efTectuation  of  the  ])urpose  of  the  par- 
ties, that  such  decision  should  be  an  honest 
one.  Chism  v.  Schipper  (N.  J.  Sup.)  51  N. 
J.  L.   1,  16  Atl.  316,  2:  544 

730.  Fraud  in  the  decision  of  an  arbiter, 
to  whose  decision  a  question  is  referred  by 
contract,  may  be  set  up  in  a  suit  on  the 
contract,  in  avoidance  of  his  decision,  even 
though  it  does  not  appear  that  the  party 
who  would  benefit  by  it  has  colluded.       Id. 

731.  The  chief  engineer  of  the  owner,  to 
whose  decision  matters  connected  with  a 
building  contract  are  to  be  left,  will  not  be 
the  person  to  decide  them,  after  he  has  left 
the  ov/ner's  employ.  Wallis  Iron  Works  v. 
Monmouth  Park  Asso.  (N.  J.  Err.  &  App.) 
55  N.  J.  L.  132,  26  Atl.  140,  19:  456 

e.  Breach   and  Its   Effect. 

Excuse  for  Breach,  see  suora,  IV.  b,  1. 

Inevitable  Accident  or  Impossibility  of  Per- 
formance as  (i round  for  Breach,  see 
supra,  IV.  b,  2. 

Prevention  or  Hindrance  by  other  Party  as 
Excuse  for  Nonperformance,  see  supra, 
IV.   b,  3. 

Joining  Cause  of  Action  for  Breach  with 
One  for  Tort,  see  Action  or  Suit,  90. 

Payment  of  Purchase  Money  Note  as  Con- 
dition Precedent  to  Action  for,  see  Ac- 
tion or  Suit,  21. 

Breach  of  Marriage  Contract,  see  Breach  of 
Promise. 

Agreement  as  to  Place  to  Sue  for  Breach, 
see  Conflict  of  Laws,  22. 

Measure  of  Compensation  for  Breach,  see 
Damages,  III.  a;  III.  p,  2;  Set-Off  and 
Counterclaim,  5-7. 

Choice  of  Remedy  for  Breach,  see  Election 
of  Remedies.'  20-30. 

Evidence  as  to  Breach,  see  Evidence,  XI.  o. 

Action  for  Breacli  against  Executor,  see 
Executors  and  Administrators,  123. 

Injunction  against  Breach,  see  Injunction, 
I.  b. 

Breach  of  Contract  to  Protect  Servant  from 
Strikers,  see  Master  and  Servant,  56. 

Third  Person's  Right  to  Sue  for  Breach,  see 
Parties,  I.  a,  2,  6. 

Of  Condition  Subsequent,  see  Real  Prop- 
erty, 18-27. 

Quieting  Grantor's  Title  after  Breach  of 
Contract  for  Support,  see  Real  Prop- 
erty, 6. 

Question  for  Jurv  as  to,  see  Trial,  128,  247. 

See  also  supra.  075,  681;   infra,  764,  824. 

For  Editorial  Notes,  see  infra,  VIIT.  §  44. 

732.  If  one  who  delivers  his  cotton  to  a 
compress  company  under  an  agreement  by 
the  latter  to  procure  insurance  on  it  does 
not  rely  on  the  obligation  so  imposed,  but 
procures  other  insurance  thereon  in  solvent 
companies,  he   cannot,   in  case   of   the   de- 


718 


CONTRACTS,  IV.  e. 


struction  of  the  cotton,  recover  from  the 
compress  company  because  of  its  failure  to 
procure  insurance.  Deming  v.  Merchants' 
Cotton-Press  &  S.  Co.  90  Tenn.  306,  17  S. 
W.  89,  13:  518 

733.  A  decision  of  the  courts  of  a  state 
holding  unlawful  the  business  of  indemnify- 
ing against  losses  on  credits  does  not  pre- 
clude recovery  for  breach  of  a  contract, 
caused  by  the  insolvency  of  the  company, 
to  act  as  agent  in  the  state  for  a  foreign  in- 
surance company  engaged  in  such  business, 
where,  at  the  time  the  contract  was  made, 
the  business  was  held  lawful  by  the  state 
insurance  commissioner.  Rosenbaum  v. 
United  States  Credit  System  Co.  (X.  J.  Err. 
&  App.)  65  N.  J.  L.  255,  48  Atl.  237,  53:  449. 
What  constitutes  a  breach. 

Of   Mortgage   for  Life   Support,   see   Mort- 
gage, 134. 
By  Purchaser,  see  Sale.   103. 
See  also  Guaranty,  1;  Photographs,  2. 

734.  A  contract  not  to  engage  in  the 
barber  business  in  any  manner  in  a  certain 
town  so  long  as  another  person  shall  con- 
tinue in  business,  made  by  the  owner  of  a 
barber  shop  upon  a  sale  of  his  furniture, 
tools,  and  fixtures  to  such  person,  is  violated 
by  working  at  the  barber  trade  as  an  em- 
plovee.  Pohlman  v.  Dawson,  63  Kan.  471, 
65  Pac.  689,  54:  913 

735.  A  covenant  by  a  partnership  in  sell- 
ing its  bvisiness,  binding  the  partners  not  to 
engage  in  business  again  within  a  certain 
distance  of  the  old  stand,  is  broken  by  one 
partner's  so  engaging,  so  as  to  render  him 
liable  for  the  breach.  Love  v.  Stidham,  18 
App.  D.  C.  306,  53:  397 

736.  Causing  it  to  be  believed  by  the  pro- 
spective customers  of  the  other  party  that 
one  is  a  partner  in  a  rival  firm  is  a  breach 
of  a  contract  not  to  engage  in  a  business  for 
a  certain  time  as  a  partner  in  such  firm. 
Daniels  v.  Brodie,  54  Ark.  216,  15  S.  W.  467, 

11:  81 

737.  To  take  stock  or  help  to  organize  or 
manage  a  corporation  formed  to  carry  on  a 
business  after  one  has  agreed,  on  the  sale  of 
such  a  business,  not  to  continue  it  in  that 
local  it  V.  is  a  breach  of  his  contract.  Kra- 
mer v." Old,  119  X.  C.  1,  25  S.  E.  813,    34:  389 

738.  The  mere  making  of  a  second  execu- 
tory contract  to  sell  property  which  the 
vendor  had  already  agreed  to  sell  is  not  of 
itself  a  breach  of  the  prior  agreement,  as  it 
does  not  incapacitate  him  from  carrving  it 
out.  Stanford  v.  Magill,  6.  N.  D.  .536,  72 
N.  W.  938,  38:  760 

739.  The  vendor  in  a  contract  to  sell  prop- 
erty of  a  certain  description,  no  particular 
articles  being  agreed  upon,  can,  before  the 
day  of  delivery,  after  an  ex  parte  selection 
of  the  property  which  he  intends  to  deliver, 
sell  that  property  to  another  without  breach 
of  his  agreement,  as  the  law  requires  only 
that  he  deliver  property  of  the  prescribed 
description  when  delivery  is  due.  Id. 

740.  The  pregnancy  of  ewes  in  October  is 
not  a  breach  of  a  contract  made  some  time 
before,  to  deliver  them  "in  healthy  condi- 
ti(m."  Olson  v.  Port  Huron  Livestock  Asso. 
18  Mont.  392,  45  Pac.  549,  33:557 


741.  Printing  a  lithographed  cover  design 

with  the  addition,  for  advertising  purposes, 
of  the  lithographer's  name,  which  is  made 
after  approval  of  proofs,  is  a  breach  of  a 
contract  to  furnish  finished  work  equal  in 
good  effect  to  the  proofs,  the  approval  of 
which  rests  with  the  customer,  although  the 
addition  does  not  detract  from  the  merit  or 
usefulness  of  the  cover,  and  it  is  customary 
to  make  it  unless  an  agreement  to  the  con- 
trary is  specifically  made.  Harris  v.  Sharp- 
ies, 202  Pa.  243,  51  Atl.  965,  58:  214 

742.  The  repudiation  of  a  contract  before 
the  time  for  performance  arrives  does  not 
constitute  a  breach  thereof,  but  the  only  ef- 
fect is  to  dispense  with  an  offer  by  the  other 
party  to  perform,  if  such  repudiation  is  not 
withdrawn  before  the  stipulated  time  for 
performance.  Stanford  v.  Magill,  6  N.  D. 
536,  72  N.  W.  938,  38:  760 

743.  A  breach  of  an  independent  covenant 
which  does  not  go  to  the  whole  consideration 
of  a  contract,  but  which  is  subordinate  and 
incidental  to  its  main  purpose,  does  not 
constitute  a  breach  of  the  entire  contract, 
or  warrant  its  rescission  by  the  injured 
party,  but  the  latter  is  still  bound  to  per- 
form his  part  of  the  contract,  and  his  only 
remedy  for  the  breach  is  compensation  in 
damages.  Kauffman  v.  Raeder,  47  C.  C.  A. 
278,  108  Fed.  171,  54:  247 

744.  A  general  assignment  for  creditors 
made  by  a  contractor  does  not  abrogate  the 
contract  or  constitute  a  breach  of  it  so  as 
to  entitle  the  other  party  to  take  possession 
of  the  property  on  which  the  work  is  being 
done  before  the  expiration  o  f  the  time 
agreed  upon  for  performance,  althouorh  the 
assignment  contains  no  provisions  with  re- 
spect to  the  assignee's  power  to  carry  out 
contracts.  Vandegrift  v.  Cowles  Engineer- 
ing Co.  161/N.  Y.  435,  55  N.  E.  941,    48:  685 

745.  The  refusal  of  a  mortgagor  to  fur- 
nish support  to  the  mortgagees  at  any  other 
place  than  his  own  home,  although  they 
were  entitled  to  claim  it  at  any  reasonable 
place,  and  his  declaration  that  he  would  not 
pay  for  any  support  furnished  by  others, 
constitute  a  breach  of  the  condition  of  the 
mortgage,  on  which  an  action  of  foreclosure 
may  be  maintained  for- the' reasonable  value 
of  support  furnished  by  others,  Avithout  any 
request  of  the  mortgagor  or  demand  upon 
him.  Tuttle  v.  Burgett,  53  Ohio  St.  498, 
42  N.  E.  427,  30:  214 
Effect. 

Liability  for  Inducing  Breach,  see  Case,  IT. 

Statutory  Penalty  for  Breach,  see  Constitu- 
tional Law,  1101. 

Cancelation  of  Oil  or  Gas  Lease  for  Breach 
of  Conditions,  see  Mines,  85-91. 

See  also  supra,  652,  742-745;  infra,  808-815. 

746.  L'^pon  election  to  treat  the  renuncia- 
tion of  the  contract  by  the  other  party, 
whether  by  declaration  or  by  acts  and  con- 
duct, as  a  breach  of  the  contract,  the  rights 
of  the  parties  are  to  be  then  regarded  as 
culminating,  and  the  contractual  relation 
ceases  to  exist  except  for  the  purpose  of 
maintaining  an  action  for  the  recovery  of 
damages.  Lake  Shore  &  M.  S.  R.  Co.  v. 
Richards,  152  HI.  59,  38  N.  E.  773,       30:  35 


CONTRACTS,  IV.  f,  V.  a. 


71» 


747.  The  breach  of  the  implied  condition 
that  an  employee  will  serve  his  employer 
honestly,  by  embezzling  funds  during  every 
month  he  was  employed  by  a  contract  which 
was  entire  for  each  month,  prevents  any  re- 
covery of  wages.  Peterson  v.  Mayer,  4G 
Minn.  408,  49  N.  W.  245,  13:  72 

748.  An  owner  of  property  in  the  posses- 
sion of  a  bailee  who  has  contracted  to  in- 
sure it  cannot  recover  for  the  latter's  failure 
to  procure  full  insurance,  when  he  has  him- 
self procured  it  and  received  payment  there- 
on. Deming  v.  Merchants'  Cotton  Press  dL  S. 
Co.  90  Tenn.  ;?0(),  17  S.  W.  89,  13:  518 

749.  A  contract  by  a  compress  company 
to  procure  insurance  for  the  benefit  of  car- 
riers, upon  cotton  delivered  to  it  for  such 
carriers,  renders  it  liable  to  them  for  failure 
to  procure  insurance  suflficient  to*«over  any 
loss   that   occurs.  Id. 

750.  A  cotton  compress  company  which 
receives  cotton  for  compression  and  storage 
under  a  contract,  either  express  or  implied 
from  usage,  to  insure  the  same  to  its  full 
value  for  the  owner's  benefit,  is  liable  to 
the  latter  for  its  full  value  in  case  it  is 
destroyed  by  fire  while,  through  the  com- 
pany's negligence,  it  remains  uninsured,  al- 
though the  company  is  free  from  negligence 
in  caring  for  it.  Id. 
Waiver  of  breach. 

751.  Waiver  of  a  breach  by  a  fertilizer 
manufacturer,  of  his  contract  to  procure  his 
crude  rock  from  the  other  party,  by  his  fail- 
ure to  do  so  for  two  years,  is  not  shown  by 
neglect  absolutely  to  refuse  further  com- 
pliance until  after  orders  for  a  large  amount 
nave  been  received,  where  they  were  all 
rushed  in  within  a  few  months,  and  full 
knowledge  of  the  facts  was  not  shown. 
Loudenback  Fertilizer  Co.  v.  Tennessee 
Phosphate  Co.  58  C.  C.  A.  220,  121  Fed.  298, 

61:  402 
f.  Time. 

For  Delivery  of  Coods  Sold,  see  Sale,  31-^3." 
Default  by  Purchaser  of  Land,  see  Vendor 

and  Purchaser,  9,  16,  17. 
Waiver  of  Right  to  Damages  by  Delay,  see 

Sale,   102. 
See  also  supra,  II.  c;  infra,  814. 

752.  A  stibsoription  to  a  building  on  the 
express  condition  that  it  shall  be  completed 
within  a  certain  time  fails  unless  the  con- 
dition is  complied  with.  Cincinnati,  S.  &  C. 
R.  Co.  V.  Penslev.  6  U.  S.  App.  115,  2  C.  C. 
A.  480,  51  Fed.  738,  19:796 


V.  Change  or  Extinguishment, 
a.  In  General. 

Reformation  of  Insurance  Policy,  see  Insur- 
ance, TIL  b. 

Revocation  of  Antenuptial  Contract,  see 
TTnsband  and  Wife.  163. 

For  Editorial  Notes,  see  infra,  VIII.  §§  45- 
50. 

753.  The  revocation  of  authority   after   it 
has  been  executed  cannot  avail  to  annul  a 


contract  made  in  conformity  thereto.  Peo- 
ple v.  North  River  Sugar  Ref.  Co.  121  N.  Y. 
582,  24  N.  E.  834,  9:  33 

754.  The  appointment  of  appraisers  can- 
not be  revoked  at  the  pleasure  of  one  of  the 
parties,  when  they  have  proceeded  to  make 
a  valuation  of  property  under  a  contract  for 
the  sale  thereof  at  a  price  to  be  fixed  by 
the  appraisers,  and  for  a  valid  considera- 
tion already  past.  Guild  v.  Atchison,  T. 
&  S.  F.  R.  Co.  57  Kan.  70,  45  Pac.  82,  33:  77 
Modification  generally. 

For  Editorial  Notes,  see  infra,  VIII.  §  45. 

755.  The  manner  in  which  compensation 
shall  be  paid  may  be  waived  or  modified 
without  destroying  the  promise  that  a  cer- 
tain amount  shall  be  paid,  where  the  lat- 
ter is  the  principal  part  of  the  contract. 
Davis  v.  Com.  164  Mass.  241,  41  N.  E.  292, 

30:  743 
Modification  by  parol. 
For  Editorial  Notes,  see  infra,  VIII.  §  45. 

75G.  The  ancient  technical  rule  of  common 
law,  that  a  contract  under  seal  cannot  be 
varied  or  discharged  by  a  parol  agreement, 
is  practically  superseded.  McCreery  v.  Day, 
119  N.  Y.  1,  23  N.  E.  198,  6:  503 

757.  An  executed  parol  agreement  modi- 
fying a  contract  under  seal  will  be  upheld. 
McKenzie  v.  Harrison,  120  N.  Y.  260,  24  N. 
E.   458,  8;  257 

758.  A  stipulation  in  a  written  lease,  giv- 
ing the  tenant  the  right  to  cut  and  use 
trees  growing  on  the  leased  premises,  may 
be  waived  by  parol.  Lee  v.  Hawks,  68  Miss. 
669,  9  So.  828,  13:  633 
Repudiation. 

As  Ground  for  Rescission,  see  infra,  SOS- 
SIS. 

By  Corporation,  Necessity  of  Promptness, 
see  Corporations,  349. 

See  also  supra,  742. 

759.  Either  party  to  a  contract,  while  it 
is  executory,  may  by  explicit  direction  stop 
performance  on  the  other  side,  thereby  be- 
coming liable  for  the  damages  to  which  the 
other  is  subjected;  and  thereafter  the 
other  cannot  proceed  with  the  performance 
of  the  contract  and  increase  the  amount  of 
damages.  Gibbons  v.  Bente,  51  Minn.  499, 
53  K  W.  756,  22:  80 

760.  Affirmative  relief  in  equity  against 
an  illegal  contract  by  a  corporation  to 
transfer  its  entire  plant  and  business  to 
another  company,  and  a  conveyance  in  pur- 
suance thereof,  may  be  given  to  the  extent 
of  an  injunction  against  interference  with 
the  title  or  possession  of  the  original  cor- 
poration, where  before  actually  surrender- 
ing the  possession  of  its  property,  or  re- 
ceiving all  the  consideration,  it  repudiated 
the  whole  scheme  and  tendered  back  all 
that  it  had  ever  received,  and  has  kept  the 
tender.  ^McCutcheon  v.  Merz  Capsule  Co.  37 
U.  S.  App.  586,  19  C.  C.  A.  108,  71  Fed.  787. 

31:415 
Abandonment. 

Of  Contract   with  Citv,  see  Municipal  Cor- 
porations, 308,  309. 
For  Editorial  Notes,  see  infra,  \'ITI.  §  50. 

761.  The  fact  that  a  small  quantity  of  ore 
delivered  under  contract  providing  for  sue- 


720 


CONTRACTS,  V.  b. 


cessive  shipments  of  ore  free  from  foreign 
substances  was  not  free  from  them  does  not 
justify  an  abandonment  of  the  entire  con- 
tract. Worthington  v.  Gwin,  119  Ala.  44, 
24  So.  739,  43:  382 

762.  It  can  make  no  difference  whether  a 
contract  has  been  partially  performed  or 
the  time  for  performance  has  not  yet  ar- 
rived, in  determining  the  right  of  one  party 
to  regard  it  as  abandoned  by  the  other. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Richards, 
152   111.   59,  38  N.   E.  773,  30:  33 

763.  The  refusal  of  a  purchaser  of  wood 
to  keep  his  agreement  to  pay  for  each  ship- 
ment as  received,  and  his  declaration  that 
he  would  not  pay  for  a  shipment  until  the 
next  shipment  was  received,  while  he  in- 
sisted on  the  complete  delivery  of  the  wood, 
do  not  constitute  such  an  abandonment  of 
the  contract  on  his  part  as  will  justify  the 
seller  in  refusing  to  ship  any  more  wood. 
West  V.  Bechtel,  125  Mich.  144,  84  N.  W.  69, 

51:791 

764.  A  breach  of  contract  which  will  jus- 
tify the  party  not  in  default  in  abandoning 
performance  and  suing  for  damages  on  ac- 
count of  a  breach  by  the  other  need  not  be 
of  .such  a  character  as  to  render  the  further 
execution  of  the  contract  by  him  impossible, 
hut  if  the  other  party  refuses  to  treat  it 
as  subsisting  and  binding  upon  him,  or  by 
his  act  and  conduct  shows  that  he  has  re- 
nounced it -and  no  longer  considers  himself 
bound  by  it,  there  is  in  legal  effect  a  pre- 
vention of  performance  by  the  other  party. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Richards.  1.52 
111.  59,  38  N.  E.  773,  30:33 

b.  Termination. 

Of  Contract  by  Borrowing  Member  of  Loan 
Association,  see  Building  and  Loan  As- 
sociations, 53. 

Separation  Agreement,  see  Divorce  and  Sep- 
aration, 125. 

Of  Contract  of  Employment,  see  Master  and 
Servant,  I.  e. 

Sec  also  infra,  744. 

765.  Neither  party  can  terminate,  with- 
out the  consent  of  the  other,  a  contract 
between  a  telegraph  company  which  is  seek- 
ing a  route  for  a  through  line,  and  a  rail- 
road company  in  need  of  telegraphic  service, 
l)y  which  they  undertake  to  construct  and 
maintain  a  lino  along  the  railroad  right  of 
way  at  joint  expense,  each  to  be  entitled 
to  string  wires  for  its  own  use,  after  the 
line  has  been  put  in  operation  and  main- 
tained for  many  years  under  modified  agree- 
ment'! in  STuh  a  manner  as  to  indicate  that 
there  was  no  intention  to  limit  the  duration 
of  th?  contract.  Western  U.  Teleg.  Co.  v. 
Pennsvlvania  Co.  64  C.  C.  A.  285,  129  Fed. 
849.  08:  968 

76(1.  An  enij)ioyer  who  takes  an  employee 
seriously  injured  to  a  hospital,  promising 
to  pay  for  his  care  and  treatment,  without 
any  mention  as  to  length  of  time,  has  no 
right,  while  the  patient  is  incapable  of  re- 
moval or  discharge  from  the  hospital  with- 
out  great    danger   to   his   health    or   life,   to 


termijiate  its  liability  for  further  care  or 
treatment,— at  least  without  showing  that 
the  patient  has  sufficient  means  of  his  own 
with  which  to  pay  therefor.  St.  Barnabas 
Hospital  V.  Minneapolis  International  Elec- 
tric Co.  68  Minn.  254,  70  X.  W.  1126,  40:  388 

767.  A  contract  bj'  one  selling  his  busi- 
ness not  to  re-engage  in  the  same  business 
in  the  same  town  is  not  discharged,  as  mat- 
ter Tf  law,  by  the  mere  fact  that  he  subse- 
quently forms  a  partnership  with  the  pur- 
chaser in  such  business,  so  that,  in  case  the 
partnership  is  dissolved,  he  will  be  at  liber- 
ty to  establish  a  business  on  his  own  ac- 
count; even  although  the  partnership  agree- 
ment stipulated  that  if  the  parties  could 
not  agree  the  property  should  be  put  up 
at  auction  between  them  and  sold  to  the 
one  bidding  highest.  Drown  v.  Forrest,  63 
Vt.  557,  22  Atl.  612,  14:  80 
By  insanity. 

768.  The  fact  that  the  maker  of  notes  be- 
came insane  after  he  had  given  them  to  be 
used  for  the  purchase  of  a  site  for  a  libra- 
ry in  a  school  district,  and  before  the  site 
was  bought  but  after  the  district  had  ex- 
pended money  and  incurred  liability  in  pro- 
moting the  enterprise,  does  not  revoke  his 
contract.  Kansas  City  School  Dist.  v. 
Stocking,  138  Mo.  672,  40  S.  W.  656,  37:  406 
By  death  of  party. 

769.  Death  terminate^  an  executory  con- 
tract when  the  peculiar  skill  or  taste  of  the 
party  makes  his  continued  existence  essen- 
tial to  the  completion  of  the  contract.  Cox 
V.  Martin,  75  Miss.  229,  21  So.  611,     36:  800 

770.  The  death  of  one  who  has  given  a 
deed  of  trust  on  crops  to  be  grown  during 
a  certain  year,  and  also  on  some  personal 
property  besides,  does  not  terminate  the 
contract.  Id. 

771.  A  contract  of  employment  by  a  part- 
ner is  not  dissolved  by  the  death  of  one  of 
the  partners,  where  the  business  goes  on 
without  a  break  and  both  parties  seem  to 
asf^ume  that  the  contract  is  not  ended. 
Hughes  v.  Cross,  166  Mass.  61,  43  X.  E. 
1031,  32:  620 

772.  An  explicit  agreement  to  take  and 
pay  for  a  certain  quantity  of  water  per  an- 
num for  ten  years  is  not  terminated  by  the 
death  of  the  promisor,  although  he  wanted 
the  water,  as  the  other  party  knew,  for  use 
in  a  mill  held  under  a  lease,  and  the  lease 
was  rightfully  terminated  by  the  lessor 
after  his  death, — especially  where  the  con- 
tract was  procured  by  the  other  party  as  a 
basis  for  making  an  investment  in  the 
waterworks.  Drummond  v.  Crane,  159  Mass. 
577.  35  X.  E.  90,  23:  707 

773.  A  final  provision  in  a  contract  bind- 
ing the  party  and  his  legal  representatives 
does  not  bind  them  to  do  anything  from 
which  he  is  discharged  by  death  by  provid- 
ing for  a  substituted  performance  of  his 
undertakings,  which  are  personal  in  their 
character.  Marvel  v.  Phillips,  162  Mass. 
399,  38  X.  E.  1117,  26:  416 

774.  A  contract  by  an  assignee  of  an  in- 
vention to  advance  all  funds  requisite,  look- 
ing to  the  business  for  repayment,  and  to 
manage  it  for  the  joint  benefit  of  both,  in- 


CONTRAUTS,  V.  c,  1,  2. 


721 


volves  undertakings  chiefly  personal  in  their 
character  on  his  part,  which  are  discharged 
by  his  death,  so  that  his  executors  cannot 
be  compelled  to  make  advances  of  the  re- 
quisite funds  for  the  business.  Id. 
Right  to  terminate  contract  of  employment. 

775.  A  parent  who  has  made  a  contract 
with  another  for  the  services  of  his  minor 
son  may  cancel  the  contract  and  take  his 
son  from  the  other's  custody,  if  the  latter 
persists  in  requiring  the  son  to  work  on  the 
Sabbath  in  violation  of  law,  although  the 
son  is  willing  to  perform  the  illegal  labor. 
Hunt  V.  Adams,  81  Me.  356,  17  Atl.  298, 

3:  608 
Effect  of  return  after  quitting  employment, 

776.  A  return  the  following  day,  with  an 
offer  to  work  out  the  time  for  which  notice 
is  required  before  quitting,  will  ri«t  relieve 
an  employee  from  the  effect  of  quitting 
without  sufTicient  notice,  under  a  contract 
fixing  stipulated  damages  therefor.  Tennes- 
see Mfg.^Oo.  V.  James,  91  Tenn,  154,  18  S. 
W.  262,  15:  211 

c.  Rescission;  Cancelation. 
1.  In  General. 

Rescission  as  Condition  Precedent  to  Action 

for  Damages,  see  Action  or  Suit,  23. 
Joining  Causes  of  Action  to  Set  Aside  Deed 

and  Will,  see  Action  or  Suit,  94,  101. 
Relief  against  Village  Bonds,  see  Bonds,  113. 
Cancelation     of     Written      Contract,      see 

Cancelation  of  Instruments. 
Jurisdiction    of   Equity   to   Cancel   Written 

Instruments,  see  Equity,  I.  f. 
Of    Agreement    as    to    Voting    Stock,    see 

Corporations,  662. 
Burden  of  Proof,  see  Evidence,  647. 
By  Infant,  see  Infants,  I.  d,  2,  6. 
Of    Insurance    Policy,    see    Insurance,    III. 

b,  c. 
Of  Gas  Lease,  see  Mines,  83. 
Of  Release  from  Mortgage,    see    Mortgage, 

120. 
Of  Contract  with  City,  see  Municipal  Corpo- 
rations, 300-307. 
Of  Sale,  see  Sale,  III.  c. 
Between  Vendor  and  Purchaser,  see  Vendor 

and  Purchaser,  I.  e. 
See  also  supra,  302,  642,  766;  infra,  827a, 

837. 
For  Editorial  Notes,  see  infra,  VIII.  §§  49, 

60. 

777.  Full  knowledge  of  a  fraud  by  which 
a  contract  was  procured,  which  requires  the 
defrauded  party  to  elect  whether  he  will 
perform  or  rescind  the  contract,  does'  not 
include  knowledge  of  all  the  evidence  tend- 
ing to  prove  the  fraud;  knowledge  of  the 
material  facts  which  go  to  make  up  the 
fraud  is  sufficient.  Simon  v.  Hoodvear  Me- 
tallic Rubber  Shoe  Co.  44  C.  C.  A.' 612,  105 
Fed.  573,  .52:  745 

778.  Where  a  contract  is  rescinded  while 
in  the  course  of  performance,  any  claim  in 
respect  of  performance,  or  of  what  has  been 
paid  or  received  thereon,  will  ordinarily  be 
referred  to  the  agreement  of  rescission,  and 
in  general  no  such  claim  can  be  made  un- 

L.R.A.  Dig.— 46. 


less    expressly    or   impliedly   reserved   upon 
the  rescission.     McCreery  v.  Day,  119  N.  Y. 

1,  23  N.  E.  198,  6:  503 

779.  Merely  signing  and  acknowledging  a 
deed  of  assignment  of  the  firm  assets  for 
benefit  of  creditors  will  not  defeat  the  right 
of  one  who  has  been  defrauded  in  the  pur- 
chase of  an  interest  in  a  partnership  con- 
cern to  rescind  the  fraudulent  contract,  if 
before  delivery  of  the  deed  he  withdraws 
his  consent  thereto.  Tarkington  v.  Purvis, 
128  Ind.  182,  25  N.  E.  879,  9:  607 

2.  Conditions;  Promptness;  Restoring  Bene- 

fits. 

On  Rescission  of  Sale,  see  Sale,  177. 
For  Editorial  Notes,  see  infra,  VIII.  §§  49, 
50. 

Promptness. 

In  Rescinding  Sale  to  Corporation  by  Pro- 
moters, see  Corporations,  349. 
Question  for  Jury  as  to,  see  Trial,  161. 
See  also  infra,  825. 

780.  If  a  person,  in  a  business  transaction 
with  another,  is  deceived  by  the  latter  to 
his  injury,  such  person  may  rescind  the 
transaction  within  a  reasonable-  time  after 
he  discovers,  or  has  reasonable  opportunity 
to  discover,  the  fraud,  constructive  knowl- 
edge thereof  being  just  as  effective  as  actual 
knowledge  to  set  the  time  for  rescission 
running  and  to  mark  its  limits.  Bostwick  v. 
Mutual  L.  Ins.  Co.  116  Wis.  392,  89  N.  W. 
538,  92  N,  W.  246,  67 :  705 

781.  A  landowner  permitting  the  con- 
struction of  a  switch  track  across  his  prop- 
erty on  consideration  that  the  track  shall 
not  be  used  to  haul  goods  for  his  business 
rivals  cannot,  after  large  pecuniary  invest- 
ments have  been  made  by  other  persons, 
which  are  dependent  for  their  profitable 
operation  on  the  continued  use  of  the  track, 
withdraw  his  consent  to  its  use  upon  learn- 
ing that  the  consideration  cannot  be  en- 
forced. Louisville  &  N.  R.  Co.  v.  Pittsburgh 
&  K.  Coal  Co.  Ill  Ky.  960,  64  S.  W.  969, 

55:  601 

782.  A  turnpike  company  to  which  plain- 
tiff orally  sold  land,  in  consideration  of  the 
right  to  himself  and  family  to  pass  per- 
petually through  certain  tollgates  free  of 
charge,  which  right  he  exercised  for  over 
fifteen  years,  cannot  rescind  the  contract  be- 
cause not  in  writing.  Park  v.  Richmond  & 
L  Turnp.  Co.  (Ky.)  (Not  to  be  Rep.)  9  S. 
W.  252,  423,  1 :  198 
Restoring  benefits. 

On  Rescinding  Illegal  Sale  of  Waterworks, 

see  Action  or  Suit,  30. 
Before  Rescinding  for  Duress,  see  Duress,  12. 
By  Infant,  see  Infants,  85-90. 
For  Editorial  Notes,  see  infra,  VIII.  §  49. 

783.  A  voidable  contract  cannot  be  disre- 
garded by  either  of  the  parties  to  it  without 
taking  the  proper  steps  to  have  it  canceled 
and  placing  the  other  party  in  statu  quo. 
Och  V.  Missouri,  K.  &  T.  R.'Co.  130  Mo.  27, 
31  S.  W.  962,  36:  442 

784.  The  tender  back  of  letters  patent  by 
a  buyer  to  the  seller  places  the  latter  in 
statu  quo  so  as  to  entitle  the  former  to  re- 


723 


CONTRACTS,  V.  c,  3. 


scind  the  contract  of  sale  on  the  ground  that 
the  letters  were  void  for  lack  of  novelty. 
Sandage  v.  Studebaker  Bros.  Mfg.  Co.  142 
Ind.  148,  41  N.  E.  380,  34:  363 

785.  The  rule  that  a  party  who  would  re- 
scind a  contract  must  restore  what  he  has 
received  under  it  does  not  apply  to  con- 
tracts founded  on  an  illegal  consideration, 
and  which  are  void  for  that  reason.  Spring- 
field F.  &  M.  Ins.  Co.  v.  Hull,  51  Ohio  St. 
270,  37  N.  E.  1116,  25:  37 

786.  A  party  will  not  be  relieved  from  the 
obligations  arising  from  his  contract,  when 
he  has  received  and  retains  the  consideration 
for  his  unfulfilled  promise.  Board  of  Edu- 
cation V.  Townsend,  63  Ohio  St.  514,  59  N.  E. 
223,  52:868 

787.  One  party  to  a  contract  who  has  re- 
ceived and  retained  the  benefits  of  a  sub- 
stantial partial  performance  thereof  by  the 
other  party  cannot  rescind  it,  but  the  con- 
tract must  stand,  and  he  must  perform  his 
part  of  it,  and  his  remedy  for  the  breach 
of  complete  performance  by  the  other  party 
is  limited  to  compensation  therefor  in  dam- 
ages. KaufTman  v.  Raeder,  47  C.  C.  A.  278, 
108  Fed.  171,  54:  247 

788.  A  married  woman  who,  during  mi- 
nority, joins  with  her  husband  in  a  con- 
veyance of  her  land  in  which  he  has  a  life 
interest,  is  under  no  obligation,  before  re- 
scinding, to  refund  purchase  money  paid  to 
the  husband  and  which  did  not  come  to  her 
hands,  but  which  may  be  presumed  to  have 
been  paid  for  his  interest.  She  must,  how- 
ever, pay  her  individual  indebtedness  to  the 
grantee,  which  he  canceled  at  the  time  of 
the  conveyance  as  part  of  the  consideration 
thereof.  Stull  v.  Harris,  51  Ark.  294.  11  S. 
W.  281,  2:  741 

789.  To  prevent  one  from  rescinding  a  con- 
tract of  purchase  by  which  he  has  been  de- 
frauded, for  the  reason  that  he  has  acqui- 
esced therein,  the  alleged  act  of  acquiescence 
must  be  unequivocal,  and  must  show  an 
election  to  retain  the  property  after  dis- 
covering the  deceit.  Tarkington  v.  Purvis, 
128  Ind.  182,  25  N.  E.  879,  9:  607 

790.  No  technical  tender  of  property 
which  a  vendee  was  defrauded  into  buying 
need  be  made  to  the  fraudulent  vendor  be- 
fore the  commencement  of  an  equity  suit  to 
compel  a  rescission  on  the  ground  of  fraud. 
It  is  sufficient  if  the  vendee  can  show  that 
he  has  preserved  the  property  substantially 
in  the  condition  in  which  he  received  it, 
without  intentional  or  unnecessarv  change. 

Id. 

791.  A  sale,  by  a  defrauded  vendee,  of 
some  of  the  property  received  under  the 
fraudulent  contract,  and  a  receipt  of  the 
money  therefor,  will  not  destroy  a  fully  per- 
fected right  on  his  part  to  rescind  the 
fraudulent  contract,  if  he  fully  accounts  for 
the  proceeds  to  the  fraudulent  vendor,  un- 
less it  appears  that  such  sale  was  made  in 
the  regular  course  of  business,  or  under 
such  circumstances  as  show  an  intent  to  af- 
firm the  fraudulent  contract,  since  he  has 
a  right  to  make  sales  of  the  property  for 
certain  purposes,  such  as  to  preserve  it  from 
destruction,  etc.  Id. 


792.  The  existence  of  a  cause  of  action  at 
law  to  recover  the  consideration  parted  with 
upon  a  contract,  on  the  ground  of  fraud, 
presupposes  the  actual  termination  of  the 
contract  because  of  the  fraud,  and  that  re- 
quires a  repudiation  of  such  contract  by  the 
insured  person  in  toto,  or  so  far  as  justice 
may  require,  and  an  unconditional  offer  on 
his  part,  so  far  as  justice  may  require,  to 
restore  the  wrongdoer  to  his  former  situa- 
tion, or  a  waiver  of  such  offer  by  such  con- 
duct, on  the  latter's  part  as  clearly  to  indi- 
cate that  a  tender  to  him  of  that  which  he 
parted  with  in  the  transaction  would  be 
useless  because  he  would  not  accept  it. 
Bostwick  V.  IMutual  L.  Ins.  Co.  116  Wis.  392, 
89  N.  W.  538,  92  N.  W.  246,  67:  705 

793.  The  rule  as  to  restoration  on  rescis- 
sion of  a  contract  is  satisfied  if  the  judg- 
ment sought  will  substantially  restore  the 
one  party  to  the  situation  he  was  in  when 
the  agreement  was  made;  as,  when  money 
paid  by  him  is  less  than  he  justly  owed  the 
other  party,  and  the  same  is  credited  and 
the  action  brought  for  the  balance.  Spring- 
field F.  &  M.  Ins.  Co.  V.  Hull,  51  Ohio  St. 
270,  37  N.  E.  1116,  25:  37 

3.  Grounds  of. 

Duress,  see  Duress. 

Usury,  see  Usury,  48. 

Estoppel   as  to   Cause    of    Negligence,    see 

Estoppel,  223,  226. 
Rescission  of  Contract    of    Sale,    see    Sale, 

III.  c. 
See  also  supra,  775. 

794.  A  person  who,  in  a  business  deal 
with  another,  signs  a  written  instrument,  is 
conclusively  presumed,  as  to  that  other  and 
all  persons  claiming  under  him  through 
such  instrument,  to  know  the  contents 
thereof,  no  fraud  or  deceit  being  used  by 
such  other  or  by  anyone  for  whose  conduct 
he  is  responsible,  reasonably  calculated  to, 
and  which  does,  induce  such  person  to  be- 
come a  party  to  such  instrument  without 
reading  it.  Bostwick  v.  Mutual  L.  Ins.  Co. 
116  Wis.  392,  89  N.  W.  538,  92  N.  W.  246, 

67:  705 
Of  subscription. 

795.  A  private  understanding  with  one  of 
four  persons  who  make  equal  subscriptions, 
to  the  effect  that  other  persons  will  raise 
and  pay  a  part  of  his  subscription,  will  not 
release  one  of  the  other  four,  where  this 
agreement  did  not  amount  to  a  release  of 
the  subscriber  from  any  part  of  his  sub- 
scription. Rogers  v.  Gallowav  Female  Col- 
lege, 64  Ark.  627,  44  S.  W.  454,  -39:636 

796.  A  subscriber  to  a  fund  to  be  given 
for  securing  the  location  of  a  college  at  a 
certain  place  on  condition  that  a  specified 
sum  is  raised  cannot  avoid  his  subscription 
by  showing  a  deficiency  in  the  amount  after 
it  has  been  accepted  as  sufficient  by  the 
party  establishing  the  college,  where  he  was 
a  leading  spirit  in  the  enterprise,  knew  the 
subscribers,  and  knew  what  was  demanded. 

Id. 

797.  The  purchase  of  a  site  for  a  library 
without  payment  of  the  price  therefor,  be- 


CONTRACTS.  V.  c,  3. 


r23 


fore  the  collection  of  notes  given  to  a  school 
district  for  the  purchase  of  such  a  site,  does 
not  effect  a  revocation  of  the  contract  con- 
tained in  the  notes.  Kansas  City  School 
Dist.  V.  Stocking,  138  Mo.  672,  40  S.  W.  656. 

37:  406 
For  fraud. 
As  to  What  Constitutes  Fraud,    see    Fraud 

and  Deceit. 
In  Contract  of  Sale,  see  Sale,  168-177. 
Contract  for  Purchase  of  Land,  see  Vendor 

and  Purchaser,  68-72. 
See  also  supra,  777,  779,  780,  782,  789-792. 
For  Editorial  Notes,  see  infra,  VIII.  §§  46, 

49,  50. 

798.  Kepresentations  made  for  the  pur- 
pose of  procuring  a  contract,  with  the  in- 
tent that  fchey  shall  be  acted  on,  without 
knowledge  whether  they  are  true  or  not,  are 
within  the  rule  that  a  contract  procured  by 
false  representations  may  be  disaffirmed. 
Simon  v.  Goodyear  Metallic  Rubber  Shoe 
Co.  44  C.  C.  A.  612,  105  Fed.  573,  52:  745 

799.  Equity  will  grant  relief  where  either 
a  husband  or  wife  has  been  false  to  the 
other,  and  fraudulently  or  through  coercion 
has  procured  an  unjust  advantage.  Mel- 
drum  V.  Meldrum,  15  Colo.  478,  24  Pac. 
1083,  11:65 

800.  A  purchaser  of  the  interest  of  one 
person  in  a  mine,  knowing  that  a  fraud  was 
being  perpetrated  on  the  seller  by  concealing 
the  fact  of  a  rich  discovery  of  ore  in  the 
mine,  cannot  avail  himself  of  the  benefits 
thereof,  but  the  conveyance  will  be  set  aside 
for  fraud.  Gruber  v.  Baker,  20  Nev.  453, 
23  Pac.  858,  9:  302 
Mistake. 

For  Cancelation  of  Release,  see  Release,  21. 
Contract  for  Sale  of  Land,  see  Vendor  and 

Purchaser,  66,  67. 
See  also  Reformation  of  Instruments,  7. 
For  Editorial  Notes,  see  infra,  VIII.  §  47. 

801.  Mere  ignorance  of  the  contents  of  a 
paper,  by  one  who  becomes  a  party  thereto 
under  a  mistake  as  to  its  import,  will  not 
enable  him  to  avoid  his  act.  Bostwick  v. 
Mutual  L.  Ins.  Co.  116  Wis.  392,  89  N.  W. 
538,  92  N.  W.  246,  67:705 
Incompetency. 

802.  A  deed  without  power  of  revocation, 
from  a  parent  who  is  incapacitated  physical- 
ly, and  weak  mentally,  to  his  daughter,  who 
has  for  some  time  had  the  care  of  him,  made 
without  the  benefit  of  competent  and  inde- 
pendent advice,  will  be  set  aside  by  equity. 
Slack  V.  Rees  (N.  J.  Err.  &  App.)  66  N.  J. 
Eq.  447,  59  Atl.  466,  69:  393 
Undue  influence. 

Separation    Agreement,     see     Divorce  -  and 

Separation,  124. 
Allegation  of,  see  Pleading,  27. 
Effect  of,  on  Validity  of  Will,  see  Wills,  I.  d. 

803.  The  fact  that  a  deed  of  trust  was 
made  by  a  man  while  sick,  troubled,  and 
under  nervous  excitement,  to  a  trustee  act- 
ing as  his  counsel,  for  the  purpose  of  co- 
ercing his  wife  into  a  separation  on  ad- 
vantageous terms,  will  not  prevent  the 
grantor  from  demanding  a  reconveyance,  on 
the  ground  that  the  transaction  was  against 
public  policy  and  that  he  was  in  pari  delicto. 


James  v.  Steere,  16  R.  I.  367,  16  Atl.  143. 

2:  164 

804.  An  attorney  will  be  ordered  to  recon- 
vey  land  conveyed  to  him  by  a  client  in 
trust  for  his  children,  for  the  purpose  of 
coercing  his  wife  to  a  separation  on  ad- 
vantageous terms,  although  it  contains  no 
power  of  revocation,  where  the  client  was 
under  a  misapprehension  as  to  the  trustee's 
power  to  reeonvey.  Id. 

805.  A  deed  from  a  husband  to  his  wife  of 
land  which  had  been  acquired  by  their  joint 
efforts,  secured  by  her  importunities  and 
assurances  that  he  should  enjoy  it  with  her 
as  a  home,  will  not  be  set  aside  because 
she  has  expelled  him  therefrom.  Finlayson 
V.  Finlayson,  17  Or.  347,  21  Pac.  57,      3:  801 

806.  The  fact  that  a  wife  and  her  husband 
agreed  that  she  should  deed  her  estate  to 
the  latter,  who  in  turn  was  to  will  her  his 
estate  so  that  the  survivor  should  have  the 
entire  property,  does  not  tend  to  establish 
undue  influence  on  the  husband's  part. 
Jones  V.  Gorham,  90  Ky.  622,  14  S.  W.  500. 

10:  223 

807.  A  reconveyance  by  a  natural  daugh- 
ter to  her  father  will  be  set  aside  where  he 
had  deliberately  conveyed  the  property  to 
her  as  a  gift,  and,  after  becoming  feeble  in 
body  and  mind,  was,  although  unwilling.* 
driven  by  other  members  of  his  family  to 
ask  her  for  a  reconveyance,  and  she  gave  it 
without  time  for  reflection,  consultation,  or 
advice,  while  deeply  moved  by  his  distress 
and  urged  by  the  family  lawyer,  who  had 
been  sent  with  him  and  who  told  her  that 
it  would  be  best  for  her  to  do  so,  although 
he  knew  that  her  father's  latest  will  had 
omitted  all  provisions  for  her  which  former 
wills  contained.  Davis  v.  Strange,  86  Va. 
793,  11  S.  E.  406,  8:  261 
Breach,  repudiation,  or  delay. 

Breach  of  Marriage  Contract,  see  Breach  of 

Proftiise,  2. 
Breach  of  Warranty,  see  Sale,  161. 
Question  for  Jury  as  to,  see  Trial,  248. 
See  also  supra,  743;  infra,  816. 
For  Editorial  Notes,  see  infra,  VIII.  §§  49, 

50. 

808.  The  breach  of  a  dependent  covenant  • 
which  goes  to  the  whole  consideration  of  a 
contract  gives  to  the  injured  party  the 
right  to  rescind  the  contract,  or  to  treat  it 
as  broken  and  to  recover  damages  for  a 
total  breach.  Kauffman  v.  Raeder,  47  C.  C. 
A.  278,  108  Fed.  171,  .54:  247 

809.  A  mere  request  by  one  of  the  parties 
thereto  for  an  alteration  or  modification  of 
a  fully  accepted  proposed  contract,  which 
by  acceptance  has  been  wrought  into  a  bind- 
ing contract,  is  not  a  breach  thereof,  giving 
right  of  rescission  or  action;  neither  does 
it  effect  such  alteration,  unless  assented  to 
by  the  other  partv.  Turner  v.  McCormick, 
56  W.  Va.  161,  49  "S.  E.  28,  67:  853 

810.  An  intention  to  repudiate  the  con- 
tract by  a  buyer  of  scrap  iron  who  is  td 
pay  for  each  100  tons  as  delivered,  justify- 
ing a  rescission  by  the  seller,  is  shown 
where,  after  receiving  100  tons,  he  insists 
on  having  two  or  three  car  loads  more  de- 
livered before  remitting  for  the    100    tons. 


724 


CONTRACTS,  VI.  a. 


Johnson  Forge  Co.  v.  Leonard,  3  Penn.  (Del.) 
342,  51  Atl.  305,  57:225 

811.  Failure  to  deliver  the  first  instal- 
ment of  goods  on  a  contract  for  delivery  in 
instalments  does  not  justify  a  rescission  by 
the  buyer.  Gerli  v.  Poidebard  Silk  Mfg.  Co. 
(N.  J.  Err.  &  App.)  57  N.  J.  L.  432,  31  Atl. 
401,  30:  61 

812.  Failure  to  make  payments  for  articles 
delivered  under  a  contract  for  the  manu- 
facture of  articles,  during  a  series  of  years, 
to  be  delivered  in  instalments  when  ordered, 
and  to  be  paid  for  as  delivered,  entitles  the 
manufacturer  to  declare  the  contract  re- 
scinded, and  decline  to  make  further  deliv- 
eries under  it.  Ross  Meehan  Foundry  Co.  v. 
Royer  Wheel  Co.  113  Tenn.  370,  83  S.  W. 
167,  68:  829 

813.  Failure  to  run  street  cars  as  often 
as  every  half  hour,  for  part  of  one  winter, 
on  account  of  'unusually  heavy  snowfalls 
and  high  winds,  by  which  the  road  was 
blocked  and  it  was  made  practically  impos- 
sible some  of  the  time  to  run  cars  over  it, 
where  all  usual  means  were  used  to  keep 
the  track  open  and  the  road  was  operated 
as  well  as  similar  roads  in  the  vicinity,  is 
held  not  to  justify  a  purchaser  of  land  who 

.sustained  no  damage  thereby,  in  rescinding 
his  contract  for  the  land,  by  the  terms  of 
which  the  vendor  agreed  to  construct  and 
operate  the  street  railway,  and  run  cars 
every  half  hour  "as  such  street  railroads 
are  usually  run,"  until  the  land  is  sold,  or, 
in  default  thereof,  to  take  back  the  land, 
return  the  consideration,  and  pay  a  speci- 
fied sum  as  liquidated  damages.  Buffalo  & 
L.  Land  Co.  v.  Bellevue  Land  &  L  Co.  165 
N.  Y.  247,  59  N.  E.  5,  51:  951 

814.  One  seeking  to  rescind  a  mutual  con- 
tract of  which  time  is  not  of  the  essence, 
on  the  ground  of  delay  by  the  other  party 
in  complying  with  its  terms,  must  show 
either  such  wilful  and  intentional  delay  as 
will  evince  the  intention  of  the  party  de- 
laying to  treat  the  contract  as  at  an  end, 
or  that  the  delay  has  caused  such  damages 
as  will  render  a  decree  of  specific  perform- 
ance inequitable  and  unjust.  Reld  v.  Mix, 
63  Kan.  706,  66  Pac.  1021,  55:  706 

815.  The  rescission  of  a  written  contract 
to  convey  land  will  be  decreed  in  an  action 
to  compel  specific  performance  where  such 
performance  is  denied  because  of  the  pur- 
chaser's laches  and  the  increased  value  of  the 
property,  although  the  vendor  has  obtained 
a  judgment  for  the  purchase  price,  which  he 
offers  to  cancel.  Hendry  v.  Benlisa,  37  Fla. 
609,  20  So.  800,  34:  283 
Failure  of  consideration. 

816.  A  failure  to  pay  for  a  shipment  of 
coal  within  thirty  days,  as  agreed  in  a  con- 
tract for  the  shipment  of  a  certain  amount 
in  quantities  as  ordered,  does  not  go  to  the 
whole  consideration  of  the  contract,  and 
does  not,  therefore,  give  a  right  to  rescind. 
Osgood  V.  Bauder,  75  Iowa,  550,  39  N.  W. 
887,  1 :  655 

817.  The  death  of  a  woman  whose  services 
and  attendance  are  contemplated  in  a  con- 
tract by  which  Bhe  and  her  husband  agree 
to  board,  care  for,  and  maintain   her  aunt 


during  life,  makes  such  a  substantial  failure 
in  the  consideration  that  the  aunt  is  justi- 
fied in  rescinding  the  contract.  Parker  v. 
Macomber,  17  R.  I.  674,  24  Atl.  464,  16:  858 
818.  That  the  belief  of  the  parties  to  a 
contract  for  the  exclusive  right  to  manu- 
facture machines  of  a  certain  pattern  that 
the  principal  feature  in  the  machine  was 
patentable  proves  to  be  erroneous  is  not 
such  a  failure  of  consideration  as  will  entitle 
the  one  obtaining  the  right  to  make  the  ma- 
chines to  rescind  the  contract,  since  the 
rights  of  the  parties  are  to  be  governed  by 
the  terms  of  the  contract,  and  their  belief 
as  to  the  rights  obtained  is  immaterial. 
Bancroft  v.  Union  Embossing  Co.  72  N.  H. 
402,  57  Atl.  97,  64:  298 


VI.  Actions;  Liabilities. 
a.  In  General. 

Remedies    on    Illegal    Contract,    see  supra, 

III.  g. 
Agreement  as  to  Place  to  Sue  for  Breach, 

see  Conflict  of  Laws,  22. 
As  to  Devise  of  Property,  see  Cotenancy,  2. 
Measure  of  Compensation  on,  see  Damages, 

m.  a. 
Choice  of  Remedy  for  Breach,  see  Election 

of  Remedies,  20-30. 
Effect  of  Pursuing  One  Remedy,    see    Elec- 
tion of  Remedies,  40-56. 
Variance  between  Pleading    and    Proof    in 

Actions  on,  see  Evidence,  XII.  m. 
Right  of  Action  on.  Generally,  see  Parties, 

I.  a,  2. 
Parties  Defendant  to  Action,  see  Parties,  II. 

a,  3. 
See  also  supra,  69,  748,  749;  infra,  860-862; 

Case. 

819.  A  contract  is  established  with  requi- 
site certainty  to  allow  its  enforcement,  al- 
though the  writing  has  been  lost,  when  it  is 
proved  to  be  an  agreement  that  certain  ex- 
isting openings  through  a  railroad  embank- 
ment shall  be  maintained.  Rock  Island  &  P. 
R.  Co.  V.  Dimick,  144  111.  628,  32  N.  E.  291, 

19:  105 

820.  No  cause  of  action  on  contract  can 
arise  before  the  contract  is  broken.  Tilling- 
hast  V,  Boston  &  P.  R.  Lumber  Co.  39  S.  C. 
484,  18  S.  E.  120,  22:  49 

821.  A  penalty  which,  by  the  terms  of  a 
contract,  is  to  be  paid  only  by  a  deduction 
from  the  final  payment,  cannot  be  recovered 
when  no  part  of  that  payment  has  been 
made.  Vandegrift  v.  Cowles  Engineering 
Co.  161  N.  Y.  435,  55  N.  E.  941,  48:  685 

822.  Retaining  and  making  use  of  mate- 
rials, and  neglecting  to  return  or  offer  to  re- 
turn them,  will  not  authorize  a  recovery  for 
their  price,  under  a  contract  providing  for 
payment  when  the  work  is  "in  good  work- 
ing order."  Edison  General  Electric  Co.  v. 
Canadian  P.  Nav.  Co.  8  Wash.  370,  36  Pac. 
260.  24:  315 

823.  It  is  not  essential  to  the  recovery  of 
an  instalment  of  the  amount  agreed  to  be 
paid  in  consideration  of  a  release  of  dower 


CONTRACTS.  VI.  b. 


725 


rights,  that  fhe  plaintiff  should  have  physic- 
al possession  of  a  note  which  the  contract 
contemplated  should  be  given  to  represent 
such  instalment  until  the  same  became  due. 
Irvin  V.  Irvin,  1G9  Pa.  529,  32  Atl.  445, 

29:  292 

824.  Change  of  stock  in  the  top  die  of  a 
monument,  which  is  procured  elsewhere 
after  breach  of  a  contract  to  furnish  it,  does 
not  affect  the  right  to  recover  damages  for 
such  breach,  if  the  substituted  stock  costs 
no  more  than  that  called  for  by  the  con- 
tract. Forsyth  y.  Mann  Bros.  68  Vt,  116,  34 
Atl.  481,  32:  788 

825.  A  contractor  continuing  work  under 
a  contract  to  construct  a  levee  at  a  certain 
price  per  cubic  yard,  after  discovering  that 
the  representations  of  the  othei*,party  as 
to  the  quantity  and  kind  of  earth  to  be 
handled  were  false,  waives  any  claim  for 
damages  because  of  such  representations. 
Nounnan  v.  Sutter  County  Land  Co.  81 
Cal.  1,  22  Pac.  515,  6:  219 

826.  One  who  has  ordered  goods  to  be 
manufactured  for  him,  to  be  paid  for  as  they 
are  delivered,  is  liable  to  the  manufacturer 
for  damages  in  case  he  fails  to  accept  and 
take  away  the  completed  goods  at  the  time 
he  is  required  by  the  contract  to  do  so. 
Central  Lithographing  &  E.  Co.  v.  Moore,  75 
Wis.  170,  43  N.  W.  1124,  6:  788 

827.  An  assignor  of  a  contract  for  the  pur- 
chase of  land,  who,  when  making  the  assign- 
ment, knows  that  another  is  to  be  equally 
interested  with  the  assignee  in  the  contract 
and  does  not  have  his  name  inserted  in  the 
assignment,  cannot  thereafter  recover  from 
him  upon  a  covenant  contained  in  such  as- 
signment on  the  part  of  the  assignee. 
Ferguson  v.  McBean,  91  Cal.  63,  27  Pac.  518, 

14:  65 
827a.  The  surrender  and  cancelation  of  a 
contract  for  the  purchase  of  land  will  not 
prevent  the  purchaser  from  recovering  the 
damages  sustained  by  the  breach  of  a  con- 
tract entered  into  with  him  by  a  third 
party  for  the  construction  of  a  motor  rail- 
way, the  purpose  of  which  is  to  enhance  the 
value  of  such  land.  Blagen  v.  Thompson,  23 
Or.  239,  31  Pac.  647,  18:  315 

828.  An  agreement  to  pay  a  further  sum 
for  bonds  in  litigation  if  they  are  held  to  be 
a  superior  lien  to  the  other  bonds  of  the 
same  issue,  but,  in  case  such  priority  shall 
not  be  established,  that  the  sura  already 
paid  shall  be  in  full,  gives  no  right  to  an 
additional  payment  where  certain  other 
bonds  have  been  accorded  an  equal  priority 
with  them.  Oilman  v.  Jones,  87  Ala.  691, 
7  So.  48,  5  So.  785,  4:  113 

829.  A  partnership  covenant  against  re- 
engaging in  business  is  not  made  operative 
upon  the  former  partners  as  individuals  by 
virtue  of  Iowa  Code,  §  3465,  giving  a  right 
of  action  against  any  or  all  of  the  parties 
where  two  or  more  are  bound  by  contract, 
as  that  statute  applies,  not  to  create  a  lia- 
bility, but  to  provide  a  remedy  in  case 
there  is  a  liability.  Steichen  v.  Fehleisen, 
112  Iowa,  612,  84  N.  W.  715,  51:  412 


Recovering  back  money. 
From  Combination  to  Monopolize  Trade,  see 
Assumpsit,  33. 

830.  Building  shops  on  donated  land  with 
money  given  for  that  purpose,  to  secure  the 
removal  by  a  manufacturing  company  of  its 
business  to  a  certain  place,  is  not  a  part 
performance  of  its  contract  to  make  such 
removal  of  its  business,  so  as  to  prevent  the 
subscribers  from  recovering  back  their 
money  on  the  ground  that  the  entire  con- 
sideration has  failed  if  the  business  is  not 
removed.  Ft.  Wavii'e  Electric  Light  Co.  v. 
Miller,  131  Ind.  499,  30  N.  E.  23,  14:  804 
Liability  after  sale  of  interest. 

831.  Under  a  contract  by  two  firms  for 
the  purchase  of  electrotype  plates  to  be  used 
in  a  publication  in  which  they  are  jointly 
interested,  which  contract  is  in  form  joint 
and  provides  that  they  will  be  "responsible 
for  any  and  all  wrong  use  of  said  electro- 
types," a  firm  which  sells  all  its  interest  to 
the  other  may  be  held  for  damages  caused 
by  a  breach  of  the  contract  by  the  other 
after  the  sale.  Meyer  v.  Estes,  164  Mass. 
457,  41  N.  E.  683,  32:  283 

b.  Defenses. 

As  to  Defenses  Generally,    see    Action    or 

Suit,  L  e. 
In   Action  on  Negotiable  Instruments,   see 

Bills  and  Notes,  VI.  c, 
Tn  Foreclosure  Suit,  see  Mortgage,  VT.  d. 
Violation  of  Sunday  Law  as,  see  Carriers, 

950;    Sunday,  V.,  VI. 
Champerty  as,  see  Champerty,  18,  19. 
See  also  supra,  594. 

832.  The  benefit  of  the  statute  of  frauds 
cannot  be  claimed  by  one  who  is  not  a  party 
charged  thereby.  St.  Louis,  K.  &  N.  W.  R. 
Co.  V.  Clark,  121  Mo.  169,  25  S.  W.  192,  906, 

26:  751 

833.  The  invalidity  of  a  contract  under 
the  statute  of  frauds  is  no  defense  to  a 
third  person  who  wrongfully  prevented  the 
performance  of  the  contract.  Jackson  v. 
Stanfield,  137  Ind.  592,  36  N.  E.  345,  37  N. 
E.  14,  23:  588 

834.  The  defense  of  fraud  may  be  made 
when  a  third  party,  for  whose  benefit  a 
contract  was  made,  seeks  to  enforce  it. 
Maxfield  v.  Schwartz,  45  Minn.  150,  47  N. 
W.  448,  10:  606 

835.  When  one  of  two  contracting  parties 
is  fraudulently  induced  to  execute  a  written 
instrument  upon  the  false  representation 
that  it  expresses  the  agreement  which  they 
have  made,  the  party  defrauded  "may  de- 
fend against  the  enforcement  of  the  fraud- 
ulent instrument  by  the  other  party,  even 
though  he  may  be  chargeable  with  want  of 
prudence  in  relying  upon  the  false  repre- 
sentations. Id. 

836.  The  right  of  action  upon  a  check 
given  in  payment  of  a  subscription  is  not  af- 
fected by  a  condition  subsequent  upon  which 
the  subscription  is  made,  but  which  has  not 
been  broken.  La  Fayette  County  Monument 
Corp.  V.  Magoon,  73  Wis.  627,  42  N.  W.  17, 

3:761 

837.  A  judicial  sale  of  the  equitable  inter- 


726 


CONTRACTS,  VII.  a,  b. 


est  of  a  deceased  vendee  in  a  contract  for 
lands  will  not  bar  an  action  by  his  widow 
to  recover  the  value  of  improvements,  on 
an  agreement  by  the  vendor  to  pay  her 
therefor  in  consideration  of  rescission  of  the 
contract  for  the  lands.  Houston  v.  Sledge, 
101  N.  C.  640,  8  S.  E.  145,  2:487 


VII.  Public  Contracts. 
a.  In  General. 

As  to  Implied  Contract,  see  supra,  21-25. 

Validity  of  Contract  to  Affect  Official 
Action,  see  supra,  TIL  c,  4. 

Validity  of  Contract  with  Public  Officer,  see 
supra.  III.  c,  5. 

Prior  Appropriation  as  Condition  of,  see 
Appropriations,  3,  4. 

Submitting  Question  as  to  Damages  for 
Failure  to  Complete  in  Time,  to  Arbi- 
tration, see  Arbitration,  4. 

Limiting  Hours  of  Labor,  see  Constitutional 
Law,  1043.  1044;  Eight  Hour  Law; 
Municipal  Corporations.  250. 

Statvitory  Regulation  of  Wages  Paid,  see 
Constitutional  Law,  733,  734. 

Ordinance  Creating  Monopoly  in,  see  Consti- 
tutional Law,  449. 

Estoppel  Against  Execution  of,  see  Estoppel, 
254. 

As  to  Municipal  Contracts,  Generally,  see 
Municipal   Corporations,   IT.   d. 

\^^lo  mav  Maintain  Action  on,  see  Parties, 
73-81. 

Contract  for  Public  Improvements,  see  Pub- 
lic Improvements,  IT. 

Enforcing  Contract  against  State,  see 
State,  4. 

See  also  supra,  277,  429,  430,  510,  590,  634, 
635. 

For  Editorial  Notes,  see  infra,  VIH.  §§  51, 
52. 

838.  A  reservation  in  a  contract  for  pub- 
lic work  in  favor  of  the  city,  of  certain 
powers  given  to  the  board  of  public  works 
by  Milwaukee  charter,  chap.  5,  §  20,  should, 
to  avoid  ground  for  litigation,  make  full 
and  complete  reservations  as  to  both  the 
rights  and  powers  of  the  board  as  pointed 
out.  Picketson  v.  Milwaukee,  105  Wis.  591. 
81N.  W.  864,  47:685 

839.  The  incorporation  of  a  statute  limit- 
ing the  hours  of  labor  on  public  works  into 
a  contract  for  the  construction  of  a  sewer 
does  not  make  the  provisions  thereof  bind- 
ing on  the  contractor,  if  the  .statute  is  in- 
valid, or  estop  him  from  contesting  its 
validity.  Cleveland  v.  Clements  Bros. 
Constr.  Co.  67  Ohio  St.  197,  65  N.  E.  885. 

59:  775 
83na.  The  limitation  of  the  hours  of  labor 
per  day  by  statute  and  department  regu- 
lations will  not  entitle  a  laborer  who  volun- 
tarily exceeds  that  limit  without  any  con- 
tract for  extra  compensation  to  recover 
extra  pav  therefor  from  the  government. 
United  States  v.  Moses,  60  C.  C.  A.  600.  126 
Fed.  .58,  70:  281 

840.  A     provision     that    none    but    union 


labor  shall  be  employed  cannot  be  lawfully 
made  in  a  contract  by  a  public  corporation, 
such  as  a  board  of  education,  as  it  consti- 
tutes a  discrimination  between  different 
classes  of  citizens,  and  is  of  such  a  nature 
as  to  restrict  competition  and  to  increase 
the  cost  of  the  work.  Adams  v.  Brenan, 
177  Hi.  194,  52  N.  E.  314,  42:  718 

841.  A  laborer  who  contracts  with  the 
government  to  go  to  a  distant  point  to  per- 
form work  under  an  agreement  for  free 
transportation  home  at  the  close  of  his  serv- 
ice is  not,  in  the  absence  of  anything  in  the 
contract  giving  him  that  right,  entitled  to 
pay  for  the  time  consumed  on  the  return 
journey.  United  States  v.  Moses,  60  C.  C. 
A.  600,  126  Fed.  58,  70:  281 

b.  Advertisements  and  Bids;    Letting. 

Judicial  Notice  of  Corruption  in  Letting,  see 

Evidence,  32. 
See  also  supra,  514,  634,  635. 
For  Editorial  Notes,  see  infra,  VIH.  §  52. 

842.  Contracts  may  originate  in  advertise- 
ments addressed  to  the  general  public.  An- 
derson v.  St.  Louis  Bd.  of  Public  Schools, 
122  Mo.  61,  27  S.  W.  610,  26:  707 

843.  The  intent  manifested  by  an  adver- 
tisement for  bids  must  govern  in  its  inter- 
pretation. Where  the  advertisement  is  noth- 
ing more  than  a  suggestion  to  induce  offers 
of  a  contract  by  others,  it  imposes  of  itself 
no  liability.  Id. 

844.  When  a  state  board  of  supply  has, 
after  compliance  with  the  statutory  pre- 
requisites, regularly  awarded  a  contract  for 
supplies,  it  cannot  refuse  to  execute  the 
formal  contract,  and  cancel  the  award,  un- 
less some  cause  exists  which  the  law  recog- 
nizes as  sufficient  to  invalidate  the  contract. 
State  ex  rel.  Robert  Mitchell  Furn.  Co.  v. 
Toole,  26  Mont.  22,  66  Pac.  496,         55:  644 

845.  That  one  whose  bid  to  furnish  state 
supplies  has  been  accepted  is  denominated 
by  labor  unions  as  hostile  to  labor  organiza- 
tions, and  is  classed  as  a  scab  employer,  is 
no  ground  for  refusal  by  the  board  of  sup- 
ply to  execute  the  formal  contract  in  pur- 
suance of  the  bid  and  acceptance.  Id. 

846.  The  court  will  hesitate  to  restrain 
the  execution  of  a  municipal  contract  on  the 
ground  that  the  board  of  public  works  did 
not  exercise  an  independent  judgment  upon 
the  bids  submitted  therefor,  but  acted  con- 
jointly with  certain  committees  of  the 
council,  where  it  is  not  shown  that  the 
opinion  of  the  board  was  influenced  by  their 
associates.  Ricketson  v.  Milwaukee,  105 
Wis.  591,  81  N.  W.  864,  47:  685 
Necessity  of  sealed  bids. 

847.  A  contract  Avith  the  city  of  New 
York,  for  the  consideration  of  $975,  to 
substitute  cherry  for  pine  in  finishing  the 
interior  of  a  public  building  in  process  of 
construction  under  a  valid  contract,  need 
not  be  founded  upon  a  sealed  bid  or  pro- 
posal, under  the  consolidation  act,  §  64,  re- 
quiring contracts  for  extra  work  to  be  so 
founded  wliere  "the  several  parts  of  the  said 
work  or  supply   shall   together  involve  the 


CONTRACTS,  Vil.  b. 


727 


expenditure  of  more  than  $1,000."  Brady  v. 
New  York,  112  N.  Y.  480,  20  N.  E.  390, 

2:751 
Necessity  and  suflSciency  of  advertisement; 

plans  and  specifications. 
Delep'ation   of   Power   as   to,   by    City,    see 

Municipal  Corporations,  73. 
For  Editorial  Notes,  see  infra,  VIII.  §  52. 

848.  A  state  warrant  is  not  valid  when  it 
was  given  for  the  purchase  price  of  articles 
some  of  which  were  bought  by  the  secretary 
of  state  in  the  open  market,  in  disregard  of 
Colo.  Const,  art.  5,  §  29,  and  the  act  of 
February  12,  1879,  requiring  such  purchase 
to  be  made  of  the  lowest  responsible  bidder 
after  advertising  for  bids.  Mulnix  v. 
Mutual  Ben.  L.  Ins.  Co.  23  Colo.  71,  46  Pac. 
123,  33:  827 

840.  The  legislature  cannot  ailthorize  the 
secretary  of  state  to  purchase  supplies  in 
the  open  market,  instead  of  from  the  lowest 
responsible  bidder  after  advertising  for  bids, 
as  directed  by  Colo.  Const,  art.  5.  §  29.    Id. 

850.  A  valid  contract  for  public  supplies 
cannot  be  let  upon  a  bid  tendered  pursuant 
to  an  advertisement  limiting  the  right  to  bid 
to  persons  employing,  or  who  will  in  the 
future  employ,  union  labor  only.  State  ex 
rel.  Robert  Mitchell  Furn.  Co.  v.  Toole,  26 
Mont.  22,  66  Pac.  496,  55:644 

851.  A  valid  contract  for  state  supplies 
cannot  be  made  after  advertisement  for 
bids  in  only  one  paper  printed  in  the  state, 
where  the  statute  provides  that  before  the 
contract  is  let  the  advertisement  for  bids 
must  be?  published  in  two  papers  so  printed. 

Id. 

852.  A  constitutional  provision  that  all 
state  printing  shall  be  performed  under 
contract  to  be  given  to  the  lowest  bidder 
does  not  deprive  the  legislature  of  power  to 
require  advertisements  for  bids  to  furnish 
state  supplies  to  be  published  in  two  news- 
papers. Id. 

853.  Definite  plans  and  specifications  must 
accompany  an  advertisement  for  bids  for 
building  a  public  bridge,  under  a  constitu- 
tional provision  requiring  bridge  contracts 
to  be  given  to  the  lowest  bidder;  and  a 
statute  permitting  the  commissioners  to 
advertise  at  the  same  time  for  plans, 
specifications,  and  bids,  and  to  adopt  one  of 
the  olTered  plans  with  its  soecifications,  and 
accept  the  accompanying  bid,  is  unconstitu- 
tional. Fones  Bros.  Hardware  Co.  v.  Erb, 
54  Ark.  645,  17  S.  W.  7,  13:  353 

854.  The  right  of  a  city  to  acquire  a 
patented  process  without  advertising  for 
bids  does  not  justify  the  letting  of  a  con- 
tract for  a  complete  garbage  crematory, 
with  the  necessary  buildings,  machinery, 
and  appurtenances,  as  well  as  the  use  of  a 
patented  process,  without  complying  with 
the  statutory  requirements  as  to  filing 
plans  and  specifications  in  letting  contracts 
for  public  works,  and  without  any  com- 
pliance with  the  statutory  provisions  as  to 
securing  the  ri?ht  to  use  patented  processes. 
Ricketson  v.  Milwaukee,  105  Wis.  591,  81 
N.  W.  864,  47:  685 

855.  Letting  a  contract  for  a  garbage  cre- 
matory, without  making  or  filing  any  plan 


of  the  proposed  plant,  or  adopting  any 
system  of  garbage  cremation,  or  specifying 
the  dimensions  of  buildings  or  description  of 
machinery  to  be  used,  but  merely  calling  for 
a  complete  garbage  cremation  plant  that 
will  destroy  a  certain  quantity  of  garbage 
per  day,  leaving  the  bidders  to  submit  plans 
and  specifications  showing  a  description  of 
the  buildings,  machinery,  furnaces,  and  ap- 
purtenances, is  in  violation  of  Wis.  Laws 
1874,  chap.  184,  which  requires  an  advertise- 
ment for  such  work  after  a  plan  or  profile 
of  the  work,  accompanied  with  specifications 
or  other  appropriate  and  sufficient  descrip- 
tion of  the  work,  has  first  been  placed  on 
file  for  the  information  of  bidders  and 
others.  Id. 

856.  A  change  in  a  matter  of  detail — such 
as  in  the  heating  of  a  public  building — may 
be  made  without  filing  plans  and  specifi- 
cations and  advertising  for  proposals  as  re- 
quired by  statute  in  letting  the  original 
contract  for  the  building.  Gibson  County 
V.  Cincinnati  Steam  Heating  Co.  128  Ind. 
■240,  27  N.  E.  612,  12:  502 
Letting  to  lowest  bid-ler. 
Conclusiveness  of  Decision  as  to,  see  Appeal 

and  Error,  775. 
Requiring  Municipal  Printing  to  be  Given  to 

Union  Printers,  see  Constitutional  Law, 

540. 
.\ction   to  Enforce  Lowest    Bidder's    Right, 

see  Parties,  80. 
See  also  supra,  848.  849,  853,  854;  infra,  865; 

Public  Improvements,   17-18b,  28. 
For  Editorial  Notes,  see  infra,  VIII.  §  52. 

857.  A  city  cannot  evade  a  requirement 
that  contracts  must  be  let  to  the  lowest 
responsible  bidder  by  acting  indirectly 
through  the  agency  of  the  water  board, 
which  is  only  a  department  of  the  city  gov- 
ernment. Frame  v.  Felix,  167  Pa.  47,  31 
Atl.  375,  27:  802 

858.  A  provision  that  all  contracts  for 
public  improvements  or  buildings  shall  be  let 
to  the  lowest  responsible  bidder  does  not 
prevent  a  city  from  constructing  such 
works  under  the  direction  of  its  own  en- 
gineers and  ofiicers.  Home  Bldg.  &  C.  Co.  v. 
Roanoke,  91  Va.  52,  20  S.  E.  895^        27:  551 

850.  Proposals  for  bids  for  public  work 
cannot  fix  the  price  to  be  paid  for  labor, 
where  the  statute  requires  all  contracts  for 
public  work  to  be  let  to  the  lowest  respon- 
sible bidder.  Frame  v.  Felix,  167  Pa.  47.  31 
Atl.  375,  27:  802 

860.  An  advertisement  for  bids  for  the 
erection  of  a  public  school  building,  declar- 
ing that  the  board  reserves  the  right  to  re- 
ject any  or  all  bids,  although  it  is  a  rule  of 
the  board  that  all  contracts  shall  be  let  "to 
the  lowest  and  best  bidder,"  gives  the  low- 
est bidder  no  cause  of  action  for  awarding 
the  contract  to  another,  even  if  the  board 
act  "arbitrarily  and  capriciously  and 
through  favoritism"  in  awarding  the  con- 
tract. Anderson  v.  St.  Louis  Bd.  of  Public 
Schools,  122  Mo.  61,  27  S.  W.  610.        26:  707 

861.  The  presentation  by  a  reliable  and  re- 
sponsible bidder  of  the  lowest  bid  for  a  con- 
tract for  public  work  to  officials  whose  duty 
it  is  under  a  city  charter  to  let  the  contract 


728 


CONTRACTS,  VIII.  (Ed.  Notes.) 


to  the  lowest  reliable  and  responsible  bidder, 
but  who  have  the  right  and  have  given 
notice  that  they  reserve  the  right  to  reject 
any  and  all  bids,  does  not  constitute  an 
agreement  that  they  will  make  a  contract 
for  the  work  with  such  a  bidder,  nor  vest  in 
him  such  an  absolute  right  to  the  contract 
as  will  authorize  a  court  of  equity  at  his 
suit  to  compel  them  or  the  municipality  to 
make  the  contract  with  him,  when  they  are 
about  to  award  or  have  awarded  it  to  a 
higher  bidder.  Colorado  Pav.  Co.  v.  Murphy, 
23  C.  C.  A.  631,  49  U.  S.  App.  17,  78  Fed. 
28,  37:630 

8G2.  The  lowest  bidder,  although  offering 
a  bond  for  the  performance  of  the  contract, 
cannot  compel  the  award  to  him  of  a  con- 
tract for  the  publication  and  annotation  of 
Codes,  which  by  the  Montana  Constitution 
and  the  act  of  March  7,  1895,  the  state  fur- 
nishing board  is  required  to  let  to  the  "low- 
est responsible  bidder  therefor,"  the  statute 
also  requiring  that  the  typesetting,  print- 
ing, and  binding  shall  all  be  done  within  the 
state,  and  that  the  publisher  shall  keep 
sufficient  copies  to  supply  all  demands  for 
not  less  than  eight  years,  and  a  full,  com- 
plete set  of  stereotype  matrices  of  every 
page  of  tvpe  used.  State  ex  rel."  Eaves  v. 
Rickards,  'l6  Mont.  145,  40  Pac.  210,  28:  298 
Notice  for  letting. 

863.  A  technical  defect  in  a  notice  for  let- 
ting a  contract  by  a  municipal  corporafcion, 
which  ordinary  judgment  and  sagacity  could 
hardly  guard  against,  will  not  prevent  a 
recovery  by  the  contractor  after  perform- 
ance of  his  contract.  Portland  Lumbering 
&  Mfir.  Co.  V.  East  Portland,  18  Or.  21,  22 
Pac.  536,  6:  290 

864.  Notice  inviting  proposals  for  a  con- 
tract to  furnish  electric  lights  need  not  be 
given  by  a  muiticipal  corporation,  unless  re- 
quired by  statute,  where  payment  is  all  to 
be  made  from  the  corporation  treasury. 
Crowder  v.  Sullivan,  128  Ind.  486,  28  N.  E. 
94,  13:  647 
Material  or  work  covered  by  patent. 

865.  The  fact  that  the  mode  of  building  a 
cremating  furnace  is  patented  will  not  make 
the  contract  of  a  municipal  corporation  for 
its  construction  void,  when  the  contract  for 
performing  the  work  and  furnishing  the  ma- 
terials is  let  to  the  lowest  bidder,  with  the 
understanding  that  the  patentee  will  allow 
the  use  of  his  patent  and  superintend  its 
construction  in  consideration  of  a  certain 
specified  sum  paid  him  by  whoever  secures 
the  contract.  Kilvington  v.  Superior.  83 
Wis.  222,  53  N.  W.  487,  18:  45 


Vm.    Editorial  Notes. 


For 


Particular    Classes    of   Contract,    see 

Specific  Titles,  e.  rj..  Bills 

and  Notes.  VII.;  Brokers, 

III.;  Husband  and  Wife.  V. 

Conflict  of  Laws,  as  to,  see  Conflict  of  Laws, 

in..  §§   1-11. 
Impairment    of    Obligation,    see    Constitu- 
tional Law,  III.,  §  9. 


Constitutionality  of  Statutes  Restricting 
Contracts  and  Business, 
see  Constitutional  Law, 
III.,  §  13. 

a.  Nature  and  requisites. 

I.  In  General. 
§  I.  Generally. 
Question   relating  to,  as   Federal  question. 

62:  537. 
Bill  of  lading  as  contract.    4:  244.* 
fin  tries  in  bank  book  as  contracts.    24:  737. 

2.  Implied   contracts. 

§  2.  Generally. 

When  arise,  generally.    4:  202;*  6:  702.* 
Not   to   use   negative   or    engraved    plates 
without  consent    of    party 
who    has    paid    for    them. 
50:  397. 

3.  Consideration. 

§  3.  Generally. 

For  Real  Estate  Mortgage,  see  Mortgage, 
VIII.  §  5. 

For  Chattel  Mortgage,  see  Chattel  Mort- 
gages, VIL  §  3. 

Effect  of  absence  of  words  "for  value  re- 
ceived" in  negotiable  in- 
strument.    12:846.* 

Right  of  alleged  fraudulent  grantee  to  show 
that  judgment  against 
grantor  was  based  on  an 
immoral  consideration.  67  r 
602. 

Term  "valuable  consideration"  in  deed  con- 
strued.    2:530.* 

False  representations  as  to.    10:  678.* 

§  4.  Necessity  of. 

Generally.     12:463.* 

Validity  of  voluntary  deed.     13:  640.* 

Gift  of" check.     18:  855. 

Gift  of  promissory  note.    26:  305. 

For  option.     21:  129. 

Necessity  of  new  consideration  to  support 
waiver  of  failure  to  give 
notice  of  dishonor  or  sub- 
sequent promise  by  in- 
dorser.    29:  305. 

§  5.  Sufficiency  of. 

Generally.     3:  761;*  5:  8.56;*  12:  46.* 

Validity  of  agreement  to  transfer  future- 
acquired  property  in  con- 
sideration of  mainten- 
ance.   70:  485. 

Benefit  to  promisor  and  detriment  to  prom- 
isee.   12:  465.* 

When  valuable.    2:  530* 

Concurrent  promises.     12:  463.* 

Waiver  of  legal  right.    3:  466;*  12:  466.* 

Promise  to  support  person.  3:  836;*  13: 
640.* 

Relinquishment  of  security  as  consideration 
for  deed.'    2:  530.* 

Marriage  as  a  consideration.  2:  372;*  12  r 
464.* 

For  new  contract.     13:  581.* 

For  contract  for  norrnanent  employment. 
35:  615. 


CONTRACTS,  VIII.  (Ed.  Notes.) 


729 


For  subscription  to  common  object.    3:  468.* 
For  transfer  by  creditor  in   satisfaction    of 

debt.    36:  346. 
Pre-existing  debt  as  consideration  for  chat- 
tel   mortgage    as     against 
other  creditors  or  equities. 
33:  305. 
Pre-existing  debt  as  consideration  for  bona 
fide  purchase   of   property 
not  negotiable.     36:  161. 
As  to  Transfers  in  Fraud  of  Creditors,  Gen- 
erally, see  Fraudulent  Con- 
veyances, IX. 
§  6.  —  Performance  of  existing  obligation  as 

a  consideration. 
Payment  of  existing  debt  as  consideration. 

34:  33. 
Compliance  with  obligation  to  (Jeliver  pa- 
pers or  property.''  34:  35.    . 
Agreement  to  comply  with  lease.    34:  36. 
Agreement   to   comply   with   marriage   con- 
tract.    34:  37. 
Promise  to  do  duty.    34:  37. 
Cases  to  be  distinguished.     34:  37. 
Promise    of    additional    compensation    for 
completing     contract.     34 : 
38. 
Promise    to    perform    additional,  duty    for 
same  consideration.  34:  42. 
Promise  by  stranger  to  the  contract.    34:43. 
§  7.  —  Moral  obligation  as  consideration. 
For  Other  Matters  Relating  to  Moral  Obli- 
gation,  see   Moral  Obliga- 
tions. 
The  general  doctrine.    53:  353. 

History  and  abstract  statement  of  doc- 
trine.    53:  353. 
Concrete    application    of    doctrine.    53: 
355. 
Promise  to  pay  for  past  support  of 

relative.    53:  355. 
Cohabitation.    53:  357. 
Promise  to  pay  for  past  support  of 

pauper.     53:  358. 
Promise    to    remedy     mistake     or 
hardships,    or    to    supple- 
ment past  agreement,  53: 
358. 
Miscellaneous  instances.    53:  359. 
The  exceptions.    53:  361. 
Generally.    53:  361. 

Concrete     application     of     exceptions. 
53:  362. 
New  promise  after  bar    of   limita- 
tion.   53:  362. 
New    promise    after    discharge    by 
operation  of  law.    53:  362. 
New  promise  after   voluntary   dis- 
charge.    53:  363. 
New  promise  after  majority.    53: 

365. 
New  promise  by  party  to  negotia- 
ble paper.    .53:  365. 
New  promise   after  judgment.    53: 

365. 
New    promise     after     discoverture. 

53:  366. 
New  promise  when  original  prom- 
ise in  violation  of  statute 
of  frauds.    53:  370. 
New  promise  when  original  promise 
illegal.    53:  370. 


Past   legal   consideration.     53:  371. 
Generally.     53:  371. 
Promise  to  repay  one  who  vol- 
untarily    pays      another's 
debt.     53:  372. 
Promise  to  pay  for  past  serv- 
ices.     53:  373. 
Promise  to  pay   for  improve- 
ments   on  .property.     53: 
375. 

§  8.  Proof  of;  recitals  as  to. 

Oral  evidence  of  consideration  in  sealed  in- 
strument.    5:  596.* 

Parol  evidence  as  to  consideration  of  deed. 
20:  101. 

Burden  of  proof  as  to,  for  transfer  by  hus- 
band to  wife.    56:  828. 

Presumption  as  to,  in  absence  of  express 
acknowledgment  on  face 
of  contract.     12:845.* 

Recital  of  receipt  of.    3:  804.* 

Recital  of  money  consideration  in  deed  as 
contractual.     68:  925. 

§  g.  Failure  of. 

As  a  defense  to  bill  or  note.    1 :  594.* 

WTien  paper  transferred  after  maturity. 
46:  760. 

As  ground  for  injunction  against  judgment. 
31:  747. 

As  defense  to  action  for  assessment  by  mu- 
tual fire  insurance  com- 
panies.    32:  492. 

Right  of  alleged  fraudulent  grantee  to  show 
failure  of  consideration  of 
contract  on  which  judg- 
ment against  grantor  was 
based.    67 :  603. 

4.  Mutuality. 

§10.  Generally. 

Necessity  that  acceptance  of  proposal  be  un- 
equivocal.   3 :  94.* 

Enforcement  of  unilateral  contract.  1:  554;* 
6:  807.* 

Rights  conferred  by  "refusal"  or  "option." 
2l':  127. 

Mutuality  of  contract  for  permanent  em- 
ployment.    35:  515. 

EflFect  upon  servant's  rights  of  master's 
contract  with  third  person 
exempting  latter  from  li- 
ability to  servants.  46:  54. 

5.  Formal  requisites. 

§11.  Generally. 

Signing  by  mark.    22:  372. 

Signing  by  proxy.    22:  297. 

Effect  of  omission  of  internal  revenue  stamp. 
48:  305. 

§  12.  Conditional  execution. 

Under  parol  agreement  that  contract  shall 
not  take  effect  until  others 
have  signed  it.    45:  321. 
Bonds.     45:  321. 

Rule  that  nonperformance  of  con- 
dition vitiates.   .45:321. 
Rule  that  validity    depends    upon 
knowledge  or  notice.     45: 
323. 


780 


CONTRACTS,  Vlll.  (Ed.  Notes.) 


Rule  when  bond  is  joint.     45:  325. 
What    a    sufficient    condition.     45: 
325.  ' 

Knowledge  of,  or  notice  to,  obligee. 
45:  327. 
Effect  of.    45:  327. 
Sufficiency  of.     45:  328. 
Evidence  of.  45:  329. 
Waiver  and  estoppel.    45:  329. 
Particular    classes    of    bonds.    45: 
331. 
Application    of    general    rules. 
45:  331. 
*  Bonds   for  payment   of   debts. 

45:  331. 
Bonds  of  contractors.     45:  332. 
Bonds  of  employees.    45:  333. 
Appeal  bonds.    45:  333. 
Bonds    in    attachment,     execu- 
tion, etc.    45 :  334. 
Bail   bonds.     45:  334. 
Revenue  bonds.     45:  335. 
Official    bonds,    generally.     45: 

335. 
Bonds     of     sheriffs,     deputies, 

constables,  etc.     45:  336. 
Treasurers'  bonds.     45:  336. 
Collectors'   bonds.     45:  338. 
Guardians'  bonds.     45:  339. 
Bonds    of    executors    and    ad- 
ministrators.     45:  340. 
Miscellaneous  unclassified 

bonds.     45:341. 
Conveyances.     45:  341. 
Ordinarv  contracts  or  agreements.  45: 

342. 
Negotiable  instruments.     45:  343. 

Conflict  of  authority  as  to,    45:343. 
Rule  that   failure  to  perform  con- 
dition vitiates  instrument. 
45:  343. 
Rule  that  failure  to  perform  is  no 

defense.     45:  344. 
The     condition;       sufficiency     and 

waiver.     45:  346. 
Notice  of  condition.    45:  347. 
Non-negotiable  notes.     45:  348. 
§  13.  Offer  and  acceptance  without  execu- 
tion   of    contemplated    formal    in- 
strument. 
Sufficiency  of,  as  contract.    29:  431. 

General  statement  of  the  law.  29:  431. 
Su.srgestion  of  formal  contract.  29:  432. 
Understanding   that    there    is   to   be    a 

-     formal  contract.    29:  432. 
Where  some  terms  unsettled.     29:  433. 
Wliere  the  execution  of  a  formal  con- 
tract is  one  of  the  terms 
of     the     agreement.       29: 
434. 
Agreement  to   execute   formal  contract 
may  be  binding.    29:  435. 
Where    it    appears    that    the    contract 
when  finished  should  be  a 
formal  one.     29:  436. 
Failure   to   execute    draft   of   contract. 

20:  436. 
Estoppel.     29:  436. 
Illustrations    of    proposals    for    formal 

contract.    29:  436. 
Intention    to   have    formal   contract   as 
evidence.    29:  437. 


§  14.  Statute  of  fiauds;    necessity  of  writ- 
ing. 

Conflict  of  laws  as  to  statute  of  frauds. 
64:  119. 

Validity  of  oral  insurance  contract.    22:  768. 

Non-negotiabilitv  of   contracts   in   violation 
"  of.     12:  123.* 

Contract  void  in  part.    3:  468.* 

Validity  of  parol  promise  to  accept  an  or- 
der or  bill  of  exchange. 
26:  620. 

Who  is  bona  fide  purchaser  within  statute. 
31:612. 

Use  of  statute  of  frauds  as  a  protection  to 
fraud.    25:  569. 

Validity  of  promissory  note  given  as  a  for- 
feit or  as  collateral  to  an 
invalid  oral  agreement 
within  the  statute  of 
frauds.     18:  142. 

Effect  of  part  performance  to  take  contract 
out  of  statute.     12:  123* 

§15.  — Sufficiency  of  writing.  ■ 

In  several  writings.     2:  212.* 

Essentials  of  memorandum.     2:212;*     11: 
97.* 
Terms  and  price.     11:97.* 
Description  of  subject-matter.     11:  98,* 

143.* 
Consideration.     11:  98.* 
Auctioneer's  memorandum.    11:  99.* 
Necessity    that    it    be    in    writing    and 
signed.    2:  212.* 

Undelivered  deed  as  memorandum  to  satis- 
fy statute  of  frauds. 
22:  273. 

Telegrams  as  writings  to  make  a  contract 
within      the      statute   of 
frauds.    50:  240. 
Generally.     50:  240. 
Parol  evidence  to  explain.  50:  245. 
Contract  cases  not  referring  to  the  stat- 
ute of  frauds.     50:  247. 
Is   the   m.essage   delivered   to   the  tele- 
graph    company     a     con- 
tract?    50:250. 
Which  is  the  original — the  message  de- 
livered to,  or  by,  the  tele- 
graph company?     50:  202. 

§16.  —  Contract  not  to  be  performed  with- 
in one  year. 

Generally.     3:337;*    7:784;*    11:621.* 

Contingent  performance  after  a  year.  3: 
337.* 

For  a  series  of  J'ears.  3:  338.* 

Contract  for  a  year  to  commence  on  a  fu- 
ture day.     3:  338.* 

Effect  of  full  performance  on  one  side.  3: 
338.* 

Application  to  transfer  of  interest  in  real- 
ty.    3:339.*  ■ 

Antenuptial  agreements.     3:  339.* 

Oral  promise  to  pay  by  request.     3:  339.* 

Where  performance  within  the  year  is  pos- 
sible.   3:  339.* 

Performance  depending  upon  contingent 
events.    3:  340.* 

Contracts  not  expected  to  be  performed 
within  one  year.    3:  340.* 

Antenuptial   contract.     2:  373.* 

Contracts  for  permanent  employment.  35: 
514. 


CONTRACTS,  VIII.  (Ed.  Notes.) 


781 


§  17.  —  Agreement  to  give  property  by  wilL 

Generally.     8:  414;*  14:  862. 

Effect  of -part  performance.     14:863. 

Will  as  part  performance.     14:  863. 

§  18.  —  Contract  to  answer  for  death  or  de- 
fault of  another. 

Generally.     5:  617.* 

Guaranty  of  contract  of  a  person  under  dis- 
ability.   33:  359. 

Promise  to  pay  third  person.     25:  264. 

Contracts  between  sureties  to  fix  their 
shares  of  liability.  39: 
378. 

§  19.  — Agreements  concerning  realty. 

Specific  Performance  of  Verbal  Contract, 
see  Specific  Performance, 
ni.  §  2. 

See  also  supra,  VIII.  §§  16,  17. 

Interference  of  equity  to  prevent  obtaining 
estate  by  fraud  notwith- 
standing statute.     2:  662.* 

Contracts  to  transfer  interest  in  realty. 
3:  337.* 

Enforceability  of  verbal  contracts  for  ex- 
change of  lands.    5:  245.* 

Validity  of  parol  partnership  for  dealing  in 
lands.      16:  745. 
Parol   agreement    to    procure  land    on 

joint    account.      16:  745. 
Incorporation    of    contract    in    partner- 
ship    agreement.     16:  746. 
Validity  of  parol  partnership,  general- 
ly.    16:  746. 
Parol  partnership  for  dealing  in  lands. 

16:  747. 
Methods    of    enforcing  rights.     16:  749. 
Partnership  in  securing  products  from 

land.    16:  750. 
Other  contracts  relating  to  lands.     16: 

750. 
Transfer   of  partnership   interest.      16: 

750. 
Availability   of   statute    as    a   defense. 
16:  750. 

Effect  of  statute  upon  partnership  lands. 
27:  477. 

Validity   of    oral    sale   of   standing   timber. 
19:721. 
Effect  of  oral   sale  as  a  license.     19: 

722. 
Sale  of  bark.     19:  723; 

Sale  or  mortgage  of  crops.     23:  450. 

Right  to  compensation  for  improvements 
on  land,  made  in  good 
faith  under  oral  contract 
or  gift.     53:  337. 

Transaction  between  heir  and  ancestor  re- 
lating to  expectancy.  32: 
597. 

As  to  lease  for  not  more  than  three  years. 
12:  67.* 

Lease  to  commence  at  future  time;  what 
is  lease  for  one  year.  10: 
726.* 

Lease  for  more  than  one  year.    7:  671.* 

Compensation  for  use  of  premises  under 
lease  within  statute.  26: 
799. 

Assignment  of  lease.     15:  754. 

Entry  under  parol  agreement  for  a  lease  as 
part  performance.     20:  36. 


§  20.  — Contracts  for  sale  of  goods. 
Distinction  between  sales  of  personalty  and 
agreements    for  work  and 
labor.     14:  230. 
Tests  and  rules.     14:  230. 
Special  orders.     14:  231. 
Manufacture   of   ordinary   articles    not 
according    to    special    di- 
rections.     14:  232. 
Finishing  articles  already  in  existence. 

14:  233. 
For  crops  to  be  raised.     14:  233. 
For  timber  to  be  cut  or  for  logs.     14: 
233. 
Receipt  by  carrier  to  satisfy  statute.     22: 

426. 
Contracts  for  work  and  labor.     1:  507.* 
Requisites  of  memorandum.     11:  143.* 
Symbolic  delivery  by  sample  to  satisfjr  stat- 
ute of  frauds.    70:  321. 

b.  Construction  and  effect;    merger. 

§21.  Generally. 

General   rules   of   construction.     4:  202.* 

Whether  contract  entire  or  severable. 
1 :  826.* 

Separate  instruments  construed  together. 
3:  579.* 

Effect  of  party's  ignorance  of  contents  of 
extraneous  paper  upon 
attempt  to  incorporate 
it  into  contract  by  ref- 
erence.    70:  106. 

Interpretation  of  words.     3:  859.* 

When  primary  meaning  prevails  over  tech- 
nical meaning.     12:  375.* 

Province  of  court  and  jury,  generally.  4: 
204;*    12:  376.* 

Meaning  of  terms  of  art  or  business,  for 
jury.      12:  376.* 

Law,  usage,  and  custom  as  a  part  of.  3: 
860;*    4:392;*     10:785.* 

First  and  last  days  in  computation  of  time 
on.     49:  205. 

Construction  of  building  contract.     10:  826.* 

Liquidated  damages  and  penalty  dis- 
tinguished.   13:  671.* 

Whether  stipulation  for  payment  in  case  of 
default  to  be  considered  a 
penalty  or  liquidated  dam- 
ages. 10:  826.* 
Effect  of  use  of  term  "forfeiture."  10: 
827.* 

Effect  of  agreement  to  give  property  by 
will  upon  right  to  change 
will.     14:  861. 

Effect  of  agreement  to  give  property  by  will 
on  right  to  transfer  prop- 
erty during  life.     14:  861. 

Distinction  between  executory  and  execut- 
ed.   3:  761.* 

Effect  of  contract  exempting  from  liabili- 
ty to  servants  of  other 
party.    46:  54. 

§  22.  Subscription  contract. 

As  to  Subscriptions,  Generally,  see  Sub- 
scriptions. 

For  Subscription  to  Corporate  Stock,  see 
Corporations,  VTII.  §  25. 

Is  a  subscription  contract  joint  or  several. 
22:  80. 
Stock  subscription  g.     22:  81. 


782 


CONTRACTS,  VIII.  (Ed.  Notes.) 


Contracts  in  which  there  is  a  promise. 

22:  82. 
Effect   of  agreements   among   subscrib- 
ers  and  their   relation  to 
each  other.    22 :  S3. 
§  23.  Damages  "by  the  elements." 
What  constitutes,    within    the  meaning  of 
contracts  with  stipulations 
referring  thereto.    53:  673. 
What  constitutes   damage   by   the   ele- 
ments generally.     53:  673. 
As  applied  to  covenants  in  leases.    53: 

673. 
As  applied    to    contracts    by    carriers. 

53:  676. 
Other  miscellaneous  contracts.     53:  677. 
§  24.  Merger. 
Prelimiary  negotiations  merged  in  written 

contract.     3:  308.' 
Estoppel  of  party    to    deny    terms  of    his 
written  contract.    3:  308.* 

c.  Validity. 

z.  In  general. 

§  25.  Generally. 

Of  Contract  for  Water  Supply,  see  Waters, 
IV.  §  43. 

Effect  of  failure  to  procure  license  for  busi- 
ness on  validity  of  con- 
tract therein.    16:  423. 

Constitutionality  of  statute  legalizing.  22: 
379. 

Statute  legalizing  invalid  municipal  con- 
tract.    27:  696. 

Validity  of  agreement  to  pay'  money  after 
death  of  promisor.  14: 
860. 

Validity  of  agreement  to  give  property  by 
will.     14:  860. 

Validity  of  contract  by  foreign  corporation 
which  has  not  complied 
with  statutory  conditions 
of  right  to  do  business  in 
the  state.  24:  315. 
As  to  Necessity  of  Compliance  with 
Conditions,  Generally,  see 
Corporations,  VIII.  §§  52, 
54. 

Liability  of  obligors  on  an  loriginal  contract 

as  affected  by  a  renewal  or 

substituted  contract  which 

is  void.     33:  628. 

Where  the  renewal  is  void  for  forgery. 

33:  628. 
For  want  of  authority.    33:  631. 
For  time,  mode,  and  manner  of  execu- 
tion.    33:  632. 
For  disability  of  party.     33:  633. 
For  usury.    33:  633. 
For   other    causes    contrary    to    public 
policy.     33:  635. 

§  26.  Definiteness:    certainty. 

Indefiniteness  and  uncertainty  of  contract 
for  permanent  employ- 
ment.    35:  515. 

Validity  of  purchase  of  indefinite  quantity. 
15:218. 

Effect     on     contract     of    leaving   price   in- 
definite.    53:288. 
Total  absence  of  price.     53:  289. 
Option  between  different  amounts.     53: 
292. 


Price    dependent    on    contingency.     53  r 
293. 
Market  price    or  value.     53:  293. 
Appraisement    or    award.     53:  294. 
Action  of,   or  with,  other   parties- 
53:  294. 
When  price  definite  or  certain.    53:  295 
To  be  fixed  by  subsequent  agree- 
ment.    53:295. 
By  happening  of  subsequent  event. 

53:  296. 
By   reference  to   former  relations, 

53:  296. 
By  action  of  other  parties.    53:  297, 
Misunderstanding   of   parties.     53: 

297. 
Vague  general  statements.    53:  298. 
Promise   by    decedent    to   pay   for 
services.     53:  298. 
Executed   contract;    value    instead    of 
price.    53:  299. 
§  27.  Contract  made  on  holiday. 
As  to   Other  Acts   on   Holidays,   see  Holi- 
days;   Sunday,  VI. 
Law    of   holidays    as    applied   to    contracts- 
other  than  negotiable  in- 
struments.    19:  317. 
Legality  of  contract  made  on  Sunday.     3: 
224;*      4:  680;»      7:498;*" 
11:63.* 
§  28.  Fraud;    unfair  advantage. 
As     to     What     Constitutes     Fraud,      see 

Fraud,  IX. 
Fraud  in  contract.    2:  817.* 
Obtained    by    circumvention    and     deceit; 
neglect      of      precaution ; 
sufficiency     of     proof     of 
fraud.    10:  606.* 
Secret  promise  for  individual  advantage  of 
promoter     of     enterprise- 
12:  123.* 
Bohemian  oats  transactions.    6:  498,*  501.* 
As  to  validity  of  contract   made  with  in- 
toxicated person.     54:  440. 
Degree  of  intoxication.    54:  440. 
Taking  advantage   of   intoxicated  per- 
son.    54:  443. 
Fraud.     54:  445. 
Intoxication    produced    by    the    other 

party.     54:  446. 
Ratification.     54:448. 
Habitual  drunkards.     54:  449. 
As  affecting  a  bona  fide  holder  of  note, 

54:  451. 
Implied  contracts.    54:  451. 
Obtaining  relief.    54:  452. 
Who  may  show  intoxication  of  party, 

54:  453. 
Summary.     54:  453. 
§  29.  Contracts    made    by    representative; 

ratification. 
Contracts      between      corporation      having 
common   directors  or  offi- 
cers.   33:788. 
Powers  of  officers  to  contract  with  publie 
which  they  represent.    15: 
520. 
Power  of  public   officer   to   make   contract 
binding   on   successors,   or 
for  a  term  of  years.     16 1 
257. 


CONTRACTS,  VIII.  (Ed.  Notes.) 


733 


Ratification  by  school  district  of  unauthor- 
ized contracts.     20:  136. 
§  3a  Special    contracts    and    obligation    to 

pay  in  gold  or  silver. 
Before  legal  tender  act.     29:  512. 
Application  of   legal   tender   act   to   specific 
contracts     for     coin.     29: 
512. 
Decisions  before  Bronson  v.  Rodes.    29: 
512. 
Denying    effect   to   such   contracts. 

29:512. 
Supporting     such     contracts.     29: 

515. 
In  equity  cases.     29:  516. 
Effect  of   state  statutes.     29:  516. 
Doctrine  of  Bronson  v.  Rodes  and  later 
cases.      29:  517. 
Federal  cases.    29:  517.  \ 
State  decisions  generally.     29:  518. 
Alternative    provisions;       coin    or 

equivalent.     29:  521. 
Municipal     and     state     contracts. 
29:  522. 
Implied   contracts    or    obligations    imposed 
by  law.    29:  522. 
In  general.    29:  522. 
Bailment  and   conversion  of  coin.     29: 

522. 
Bank  deposits.    29:  523. 
Accounting  for  trust.     29:  523. 
Other  actions  for  damages.     29:  523. 

2.  Illegal;   immoral;    opposed  to  public  pol- 
icy. 

§  31.  Generally. 

As  to  Contracts  Limiting  Carrier's  Liability, 
see  Carriers,  IV.  §  37. 

Aa  to  Illegal  Monopolies  or  Trusts,  see 
Conspiracy,    III. 

To  indemnify  for  illegal  act.    4:  682.* 

Promotive  of  illegal  transactions,  when 
party  may  enforce.  9: 
506.* 

Remotely,  connected  with  illegal  transac- 
tion;  not  void.    9:  657.* 

Eflfect  of  award  upon  claim  arising  out  of 
illegal  transaction.  58: 
181. 

Contracts  against  public  policy;  instances. 
3:  631.* 

Attempt  to  ratify  contract  opposed  to  pub- 
'lic  policy.     12:  121.* 

Contract  for  transfer  of  parental  authority 
or  responsibility.    27:  56. 

Contract  between  husband  and  wife  to 
compromise  pending  or 
contemplated  divorce  suit. 
60:406. 

Contracts  for  permanent  employment.  35: 
513. 

Validity  of  agreement  to  transfer  future- 
aenuired  property  in  con- 
sideration of  maintenance. 
70:  48.5. 

Injunction  against  enforcing  illegal  con- 
tract.   48:  842. 

§  32.  Bribery;    corruption. 

Contracts  to  control  operations  of  govern- 
ment.   3:  632.* 

Sale  of  office.    5:217.* 


Agreement  for  purchase  of  office  or  official 

influence.    4:  683.* 
Agreement  to  induce  public  oilicer  to  do  il- 
legal act  or  neglect  duty. 
4:  682.* 
Tending   to   influence    election    or   appoint- 
ment to  public  office.     12: 
120.* 
§  33-  For  services  to  procure  legislation. 
Generally.     30:  737. 
Condemnation  of  such   contracts  generally, 

30:  738. 
Contracts  for  legitimate  professional  serv- 
ices upheld.    30:  738. 
Contingent   fee  makes   contract   void.     30: 

738. 
Contract    for    personal  influence    or  lobby 

services.    30:  739. 
Application  of  rules.     30:  741. 
Analogous  cases.     30:  742. 
§  34.  Contract  to  procure  testimony. 
Generally.    19:  371. 
Agreements   for  disclosure  of  information. 

19:  372. 
Agreements    to    procure    evidence    or    wit- 
nesss    to    be    used    in    a 
suit.     19:  372. 
Agreements  with  witnesses.     19:  373. 
§  35.  Property  sold  for  unlawful  use. 
Right  to  recover  price  of.     15:  834. 
Goods  sold  to  smugglers.     15:  834. 
Sales   in   aid   of  rebellion.     15:  834. 
Sale  of  property  to  be  used  in  aid  of 
prostitution  or    lewdness. 
15:  835. 
Sales  in  aid  of  lotteries  or  gambling. 

15:  836. 
Sales  of  intoxicating  liquors  for  illegal 
uses.     15:  836. 
Mere     knowledge     of     purchaser's 

purpose.    15:  836. 
Assistance  of  seller.     15:  837. 
Conflict  of  laws  as  to.     61 :  417. 
§  36.  Restraint  of  trade. 
As  to  Illegal  Monopolies    and    Trusts,    see 

Conspiracy,  III. 
Restraint  on  commerce  in  violation  of  Fed- 
eral   anti-trust    law.     64: 
689. 
Validity   of  contracts    in   partial   restraint 
of    trade,    generally.       8: 
469.* 
Presumption  with    respect    to    validity    of 
contracts    in    partial    re- 
straint of  trade.    11 :  437.* 
Restrictions  as  to  time.     1:457:*    8:469.* 
Validity  of  contracts  in  restraint  of  trade 
without       liniitation       of 
place.     22:  673. 
Restraint,    unlimited    as    to    time    and 

place.     22:  673. 
Divisibility    of    co"ntract.     1:  457;    22: 

673. 
Restriction  as  to  time,  but  not  as  to 

place.     22:  673. 
Publications.     22:  674. 
Secrets  of  trade,  compounds,  and  medi- 
cine.   22:  674. 
Patented   articles.     22:  674. 
Contracts  of  purchase.     22:  675. 
Restraint    of    trade    throughout    the    state. 
11:  ,503.* 


r34 


CONTRACTS,  VIII.  (Ed.  Notes.) 


Contracts  for  permanent  employment.  35: 
516. 

Restraining  use  of  secrets  of  trade.  13: 
652. 

§  37.  Wagering  contracts. 

For  Avowed  Betting  and  Wagering,  see 
Gaming. 

Conflict  of  laws  as  to.    64:  160. 

Invalidity  of,  generally.  3:  679;*  5:  200;* 
7:  705.* 

Dealings  in  futures ;  option  deals.  1 :  140,* 
656;*    3:  679;*    5:  201.* 

Deposits  by  way  of  "margin."    3:  680.* 

Purchase  or  sale  of  futures.     12:  121.* 

Validity  of  wagering  policies  of  insurance. 
6:  137.* 

Contracts  for  future  delivery  of  property. 
4:398;*   5:  201;*    12:  776* 

Validity  of  executory  contract,  for  sale  of 
corporate  stock.    3:  784.* 

Evidence  as  to  character  of  contract.  1: 
140.* 

Right  of  broker  to  recover  for  services  or 
losses  in  dealings  in  fu- 
tures.    1:  141.* 

§  38.  Denial  of  remedy. 

For  fraud  or  illegality.     8:  476.* 

Unenforceability  of  contracts  in  violation 
or  evasion  of  law,  general- 
ly. 3:631;*  6:218;*  8: 
497,*  501.* 

Parties  in  pari  delicto.  2:  817;*  6:  458;*  8: 
511;*   12:  121.* 

Contracts  wholly  void  are  void  as  to  every- 
body.    6:  588.* 

Relief  to  less  guiltv  party  to  illegal  con- 
tract.    17:  113.* 

Injunction  against  enforcing  illegal  eon- 
tract.     48:  842. 

d.  Performance;    breach. 

§  39.  Generally. 

Performance  of  Broker's  Contract,  see 
Brokers,  III.  §  5. 

As  to  Special  Agreement  to  Pay  in  Gold  or 
Silver,  see  supra,  VIII.  § 
30. 

Option  as  to  performance;  election.  12: 
690.* 

Right  of  one  who  completes,  in  disregard  of 
notice   to  desist.     16:  655. 

Performance  of  contract  for  permanent  em- 
ployment.   35:  516. 

Admissibility  of  books  of  account  to  prove. 
52:  714. 

Effect  of  stipulation  to  give  satisfaction. 
17:207. 

§  40.  Performance   of  building  contract. 

Generally.    5:  270.* 

Eflfect  of  delay  in  performance  to  defeat  re- 
covery.   5:  271.* 

Waiver  of  strict  performance.     5:  272.* 

When  work  to  be  done  to  satisfaction  of 
architect.     5:  272.* 

Binding  effect  of  decisions  of  architect  and 
engineer.    5:  273.* 

Architect's  certificate  as  a  condition  pre- 
cedent to  recovery.  5: 
273:*    17:211. 

Acceptance  of  work.     5:  274.* 


Substantial  compliance.    9:  52.* 

Extra  work.     12:  502.* 

Submission  to  arbitration.     6:  274-* 

§  41.  Time  of  performance. 

Implied  agreement  as  to.     11:  526.* 

Time  as  essence  of  contract.     10:  828;*  12 1 

239,*  241.* 
Making  time  of  the  essence  by  demand  or 

notice.     15:  737. 
First  and  last  days  in  computation  of  time 

on.    49:  205. 
Extension   of   time   when   last  day  of  per- 
formance falls  on  Sunday.. 
14:  120. 
§  42.  Excuse  for  nonperformance. 
As  to  Effect  of  Part  Performance  of  Con- 
tract for  Services  General- 
ly, see  infra,  VIII.  §  43. 
Eflfect  of  intervening  impossibility  to  per- 
form.    14:  215. 
Governmental    interference.      14:  215. 
Carriers'  contracts.     14:  216. 
Destruction  of  subject-matter.     14:  216, 
Contracts  of  employment.     14:  217. 
Efl'ect  of  sickness  or  death.     14:  217. 
Other  instances.     14:  218. 
Eflfect  of  destruction  of  building  upon  build- 
ing contract.     12:  571.* 
Recovery    for    services    interrupted  by  sick- 
ness or  death.     16:  858. 
Eflfect  on  contract  of  the  death  of  a  party 
thereto.     23:  707. 
Generally.    23:  707. 
Landlord  and  tenant.     23:  707. 
Sale.     23:  708. 
Guaranty.     23:  709. 
Agency.     23:  709. 
Attorney.  23:  710. 
Notes,  bills,  and  checks.     23:  711. 
Personal   services.     23:  712. 
Apprentice.  23:  713. 
Waiver  of  provisions.     6:  551.* 
When  party  entitled  to  relief  from  forfei- 
ture.    10:  828.* 
§  43.  Effect    of   part    performance    of   con- 
tract for  services. 
See  also  supra,  VIII,  §  42. 
Discharge  for  cause.    24:  231. 
Discharge  without  cause.    24:  231. 
Damages.     24:  231. 
Wages.    24:  232. 
Common  count.     24:  232. 
Quantum  meruit.  24:  232. 
Assumpsit.      24:  233. 
Accord  and  satisfaction,  and  consent.     24: 

233. 
Forfeiture.      24:  233. 
Infants.     24:  233. 
Time  for  pavment.    24:  233. 
Slaves.    24 :  233. 
Abandonment  by  employee    without    cause. 

24:  234. 
Recovering  for  services  and  expenses  under 
running  contract  with  cor- 
poration ended  by  its  in- 
solvency   and    dissolution. 
69:  124. 
§  44.  Breach. 
Damages    for   Breach   of,   see   Damages,   V. 

§§   5-9,  22,  23. 
Excuse  for  Nonperformance,  see  supra,  Vlll. 
§  42. 


CONTRACTS,  VIII.  (Ed.  Notes.) 


735 


Rescission  or  Abandonment  Because  of  Oth- 
er Party's  Default,  see  in- 
fra, Vin.  §  50. 

Conflict  of  laws  as  to  measure  of  damages 
for.     56:  301,  303.^ 

When  stipulation  for  payment  in  'case  of 
default  regarded  as  a  pen- 
alty; when  as  liquidated 
damages.  10:  826.* 
Effect  of  use  of  term  "forfeiture."  10: 
827.* 

Garnishment  of  damages  for.     59:  359. 

Liability,  of  third  party  for  inducing.  21: 
233. 

Effect  of  malice  on  liability  for  causing. 
62:  678. 

Injunction  to  restrain.    6:  856.* 

e.  Change  or  extinguishment. 

§  45.  Modification  by  agreement 

Generally.     6:  551.* 

Modification  of  sealed  instrument.     12:  274.* 

Parol  evidence  to  show  waiver  of  right  un- 
der written  contract.  13: 
633.* 

§  46.  Fraud  as  ground  of  equitable  relief. 

As  to  Fraud,  Generally,  see  Fraud,  IX. 

As  to  Transfers  in  Fraud  of  Creditors,  see 
Fraudulent  Conveyances, 
IX. 

When  party  entitled  to  relief  on  ground  of 
fraud.  3:806;*  5:153;* 
6:  836.* 

§  47.  Mistake  as  ground  of  equitable  relief. 

See  also  infra,  VIII.  §  48. 

Generally.     5:  153;*   11:  857;*   12:  273.* 

What  is  mistake  in  sense  of  court  of  equity. 
5:  153;*  6:  835.* 

Mistake    of    law    or   of   legal    rights.     5: 
154;*    6:836.* 
Mistake   as  to   legal   effect   of   instru- 
ment.    6:  837.* 

Showing  mistake  by  parol  proof.     5:  158.* 

Burden  of  proof  as  to.    5:  159.* 

Character  of  evidence  to  show  mistaWe.  5: 
159.* 

Necessity  that  mistake  be  material  and  free 
from  culpable  negligence. 
4:  483;*    6:  835.* 

Mistake  of  fact.     6:  836.* 

Admissibility  of  parol  evidence  to  show 
mistake.     6:  838.* 

Mistake  as  to  incidental  or  collateral  mat- 
ter.    4:  483.* 

§  48.  Reformation. 

Equity  jurisdiction  to  reform  written  in- 
struments. 3:  189;*  5: 
156.* 

Equity  jurisdiction   to  correct  mistakes  in 
contracts.     12:  273.* 
Necessity  of  mutuality  of  mistake.    5: 
157.* 

Reformation  of  deed.    5:  158;*    12:  274.* 
By   correcting   mistake   in   description. 
12:  274.* 

Of  insurance  contracts.  2:  64;*  3:  189;* 
5:712;*     6:200,*     838.* 

Character  of  evidence  required  to  authorize 
reformation.    3:  190.* 

Enforcement  of  corrected  agreement.  5: 
159.* 


Evidence   necessary   to   show   mistake.     5: 

159.* 
Burden  of  proof.     5:  159.* 
§  49.  Rescission;    abandonment. 
Right  of  rescission  of  contract  which  is  void 
because  made  on  Sunday. 
17:  779. 
Fraudulent    representations    as   ground    of 

rescission.     11:196.* 

Rescission  of  subscription  to  stock  for  fraud 

or  misrepresentation.    33: 

721. 

Rescission  for  breach  of  warranty.    9:  611.* 

Abandonment  of  contract  for  service.     24: 

231. 
Return  or  offer  to  return  benefit  as  condi- 
tion  of  rescinding  contract. 
9:  610.* 
Necessity  that  election  to  rescind  be  exer- 
cised promptly.     9:  607.* 
Effect  of  ratification  or  acquiescence  to  de- 
feat right   to    rescind.     9: 
609.' 
Effect  of  rescission.     6:  503.* 
Action  or  suit  for  rescission  of.     9:  608.* 
Remedy  of  party  who  elects  to-  rescind  after 
stoppage  of  contract;    re- 
covery on  quantum  meru- 
it.    1 :  827.* 
Putting  other  party  in  statu  quo  as  a  con- 
dition of  right  to  rescind. 
1:  827;*  9:  608.* 
§  50.  Right  to  rescind  or  abandon  because 

of  other  party's  default. 
Generally.     30:  33. 
Condition  precedent.     30:  36. 

How  far  is  right  to  rescind  controlled 
by    question    of    condition 
precedent.     30:  36. 
Charter  party.     30:  37. 
Party  excused    by    nonperformance    of 
condition    precedent.      30 : 
39. 
Excuse    for    not    performing    condition 
precedent.     30:  40. 
Right  to  rescind  contract  without  liability 
for    nonperformance.     30 : 
40. 
Necessity  of  mutual  consent.     30:  40. 
Contract  may  be  rescinded.     30:  41. 
Duty  to  place  other  party  in  statu  quo. 

30:  44. 
Partial  performance.     30:  47. 
Party  seeking  to  rescind  must  not  be  in  de- 
fault.    30:  48. 
Right    of   party   rescinding   to   recover    for 
what  he  has  done.    30:  49. 
Right  to  abandon  performance  and  recover 
for  breach.    30:  54. 
Performance   excused.      30:  54. 
Recovery  for  breach.     30:  55. 
Lost  profits  as  damages.     30:  57. 
What  will  warrant   rescission.     30:  59. 
Application  of  above  rules  to  various  kinds 
of  contracts.     30:  64. 
Vendor  and  purchaser.     30:  64. 
Constructive  contracts.    30:  67. 
Insurance  contracts.    30:  69. 
Continuing  contracts.     30:  69. 
Fraudulent    representations    as    ground    of 
rescission  of  contract.    11: 
196.* 


786 


CONTRADICTION  ;   CONTRIBUTION. 


f.  Public  contracts. 


§  51.  Generally. 

For   Municipal     Contracts,    Generally,     see 
Municipal  Corpora  t  i  o  n  s, 
IV.  §  15. 
For  Sfunicipal  Water  Supply,  see  Waters, 

IV.  §  43. 
Statute     legalizin{»    invalid    municipal    eon- 
tract.     27:  696. 
Liability  of  public  officers  on  contracts  made 
by    them    for   the    public. 
15:  509. 
Power  of  public  officers  to  make  contracts 
binding    on    their    succes- 
sors or  for  term  of  years. 
16:  257. 
Power    of  officer    to  contract    with    public 
body       or       municipality 
which  he  represents.     15: 
520. 
§  52.  Right  of  lowest  bidder  on. 
Cases  affirming  riprht  of  lowest  bidder.     26: 

707. 
Absence  of  statute  renuiring  award  to  low- 
est bidder.     26:  707. 
Rights  under  statute  or  ordinance  requiring 
award    to    lowest    bidder. 
26:  707. 
Reservation  of  right  to  reject  any  and 

all   bids.     26:  707. 
Opening  bids—letting.     26:  708. 
Defective  bid  or  bond.     26:  708. 
Specifications — auality     of  article.     26: 

709. 
Change  of  plans  or  bid — abandonment. 

26:  709. 
Deposit.    26 :  709. 
Lowest     bidder — determination.         26: 

709. 
Qualification  of  bidder.     26:  710. 
Readvertisement.     26:  710. 
Confirmation  by  council.     26:    711. 
Street  railroad  grants.     26:  711. 
ISiIandamus    and     injunction     generally. 
26:  711. 


CONTRADICTION. 
Of  Witness,  see  Witnesses,  HL 


CONTRIBUTION. 


To    Agricultural    Society,    see    Agricultural 

Societies,  4,  5. 
By  Passenger,  see  Average. 
By  Accommodation  Indorser,  see  Bills  and 

Notes,  96. 
Between  Shippers,  see  Carriers,  738. 
For   Expense   of   Bridge,   Vested   Right   to, 

see  Constitutional  Law,   158. 
In  Unlawful  Business,  see  Contracts,  599. 
Between  Cotenants,  see  Cotenancy,  27-32. 
As  to  Dower,  see  Dower,  3. 
Parol  Evidence  in  Action  for,  see  Evidence, 

1161. 
By  Members  of  Mutual  Insurance  Company, 

see  Insurance,  664. 


Between  Insurance  Companies,  see  Insur- 
ance, VI.  g. 

Between  Life  Tenant  and  Remaindermen 
for  Taxes  and  Assessments  Paid,  see 
Lif£  Tenants,  66. 

Limitation  of  Action  for,  see  Limitation  of 
Actions,  77,   189-191. 

Between  Vendor  and  Purchaser,  see  Mort- 
gage,   189. 

Liability  for,  as  AflFecting  Right  of  Action 
on  Covenant,  see  Parties,  27. 

To  Limited  Partnership,  see  Partnership, 
153-155. 

Between  Partners,  see  Evidence,  1000;  Judg- 
ment, 239-241;  Partnership,  100,  and 
also  infra.  Editorial  Notes. 

Between  Sureties,  see  lOvidence,  1131;  Ex- 
ecutors and  Administrators,  196;  Inter- 
est, 88;  Judgment,  388,  389;  Principal 
and  Surety,  61-64. 

1.  The  right  of  action  of  a  co-obligor  or 
surety  who  satisfies  the  debt,  for  contribu- 
tion from  those  who  are  liable  with  him, 
rests  upon  the  implied  promise  raised  by 
law,  and  not  upon  subrogation,  where  the 
creditor  has  no  security,  and  the  debt  cre- 
ates no  lien  upon  property  and  is  entitled  to 
no  priority  over  other  debts.  Faires  v. 
Cockrill,  88  Tex.  428,  31  S.  W.  190,      28:  528 

2.  Infant  heirs  are  not  liable  to  con- 
tribution at  law  for  the  amount  of  liability 
voluntarily  incurred  by  other  heirs  in  sav- 
ing the  estate  from  insolvency.  Benedict  v. 
Chase,  58  Conn.  196,  20  Atl.  448,  8:  120 
Between  wrongdoers. 

See  also   infra,  Editorial   Notes. 

3.  The  principle  that  denies  contribution 
between  wrongdoers  does  not  apply  where  a 
railroad  company  seeks  indemnity  from  a 
conductor  employed  by  it  against  a  claim 
for  damages  by  a  person  whom  the  con- 
ductor, in  violation  of  the  rules  of  the  com- 
pany, had  permitted  to  ride  on  a  freight 
train.  Memphis  &  C.  R.  Co.  v.  Greer,  87 
Tenn.*698,  11  S.  W.  931.  4:  858 
Attaching  creditors. 

4.  Contribution  may  be  allowed  between 
joint  trespassers,  where  their  trespass,  which 
consisted  of  levies  made  by  their  joint  pro- 
curement under  their  several  attachments, 
was  made  in  good  faith,  believing  that  the 
claim  to  the  property  by  the  person  whose 
rights  they  invaded  was  actually  fraudu- 
lent. Vandiver  v.  PoUak,  97  Ala.  467,  12  So. 
473,  19:  628 

5.  Creditors  who  attach  goods  in  good 
faith  in  the  exercise  of  ordinary  prudence 
and  caution,  with  no  intention  of  commit- 
ting a  trespass  or  injuring  anyone,  but  with 
the  honest  belief  that  transfers  by  the 
debtor  were  fraudulent,  are  not  wrongdoers 
such  as  to  be  denied  the  right  of  contribu- 
tion between  each  other  for  the  damages 
thereby  incurred,  although  the  seizure  turns 
out  to  have  been  unlawful.  Farwell  v. 
Becker,  129  111.  261,  21  N.  E.  792,  6:  400 

6.  One  of  several  attaching  creditors  who 
has  assisted  in  defending  actions  brought  by 
a  claimant  of  the  goods,  and  whose  debt  has 
been  fully  paid  from  moneys  arising  out  of 
a  sale  of  the  goods  under  the  attachment. 


CONTRIBUTOR— CONVICTS. 


rs-i 


may  be  required  to  contribute  to  the  pay- 
ment of  the  damages  recovered  against  the 
other  attaching  creditors.  Id. 

Joint  defendants. 

7.  Contribution  cannot  be  compelled  by  a 
judgment  debtor  who  has  paid  the  judg- 
ment, from  a  joint  defendant,  where,  after 
the  latter  had  been  notified  that  the  suit 
was  abandoned,  the  former  had  the  pro- 
ceedings renewed  and  carried  to  judgment 
without  notice  to  the  other,  and  assumed 
to  conduct  the  defense  for  both  without  set- 
ting up  as  a  defense  therein  a  discharge  in 
bankruptcy  which  he  knew  his  codefendant 
had  obtained  pending  the  action.  Duncan 
V.  Flanagan.  133  Pa.  373.  19  Atl.  405, 

7:412 

Editorial  Notes.        ■• 

Between  partners.     1:  313.* 

Right  to,  among  cotenants.     9:  740.* 

Liability  of  cotenants  to  account  for  use 
and  occupation  and  rents 
and  profits.     28:  829. 

Liability  of  cotenants  for  improvements 
and  repairs.     29:  449. 

Between  wrongdoers.  1:313;*  4:859;* 
6:  631.* 

Between  cosureties.     9:  411.* 

Between  successive  purchasers  of  parcels  of 
land  subject  to  mortgage. 
5:  282.* 

Between  heir  or  widow  in  case  of  payment 
of  mortgage.     5:  520.* 

By  widow  as  condition  of  preservation  of 
dower.     4:  119.* 

Between  stockholders  of  foreign  corpora- 
tions.    34:  763. 

Contingency  of  claim  for,  as  affecting  lim- 
itation of  time  for  presen- 
tation to  estate  of  de- 
ceased person.    58:  88. 


CONTRIBUTOR. 

Liability  for  Libel,  see  Libel  and  Slander,  4. 


CONTRIBUTORY   NEGLIGENCE. 

See  Negligence,  II. 


CONVENT. 

Minor's  Release  from,  see  Habeas  Corpus,  28. 
Exemption   of,   from    Taxation,   see   Taxes, 
297. 


CONVENTIONS. 


Constitutional,    Debates    of,    see    Constitu- 
tional Law,  52. 
Of  Political  Parties,  see  Elections,  III. 
L.E.A.  Dig.— 47. 


CONVERSION. 

Measure  of  Damages  for,  see  Damages,  387, 
390-398. 

Equitable  Conversion,  see  Equitable  Con- 
version. 

As  Larceny,  see  Larceny,  3. 

Of  Fund  by  Servant  Disbursing  under  Mas- 
ter's Order,  see  Master  and  Servant, 
716. 

Action   for,    see   Trover. 


CONVICT-MADE  GOODS. 

Provision  as  to,  as  Interference  with  Com- 
merce, see  Commerce,  106. 

Police  Regulation  as  to,  see  Constitutional 
Law,  1008. 


CONVICTS. 

Review  of  Trial  Judge's  Decision  as  to  San- 
ity of,  see  Appeal  and  Error,  50. 

Trying  Question  of  Sanity  of,  see  Criminal 
Law,  175. 

Using  Public  Money  to  Reimburse  One 
Wrongfully  Convicted,  see  Appropria- 
tions, 20. 

Liability  for  Cruelty  to.  see  Assault  and 
Battery,  5. 

Status  of,  see  Civil  Death. 

Good  Time  Credits  of,  see  Owwdtutional 
Law,  234. 

Ex  Post,  Facto  Laws  as  to,  see  Constitu- 
tional Law,  I.  b,  1. 

Violating  Conditions  of  Release,  see  Crim- 
inal Law,  71. 

Sentence  and  Imprisonment  of,  see  Criminal 
Law,  IV. 

Empowering  State  Auditors  to  Determine 
Innocence  of  Pardoned  Convict,  see 
Courts,  239. 

Issuing  Warrant  for  Return  of,  see  Govern- 
or, 1. 

Employment  of. 

Labor  of,  as  part  of  Punishment,  see  Crim- 
inal Law,  192,   193,  207. 
See  also  infra.  Editorial  Notes. 

1.  The  employment  of  a  convict  upon  the 
public  roads  under  supervision  and  control 
of  a  public  agent  by  order  of  the  county 
commissioners  is  not  a  "hiring  out"  of  the 
convict  which,  by  N.  C.  Code,  §  3448,  re- 
quires an  order  of  court  embodied  in  the 
sentence.  State  v.  Yandle,  119  N.  C.  874, 
25  S.  E.  796,  34:  392 

2.  An  order  of  county  commissioners  for 
the  employment  of  a  convict  upon  the  public 
roads,  made  under  N.  C.  Code,  §  3448,  and 
without  any  provision  therefor  in  the  sen- 
tence or  any  order  of  court,  is  not  void  on 
the  ground  that  it  is  in  the  nature  of  an  ad- 
ditional judgment  against  the  convict.  Id. 
Liability  for  injuries  committed  by. 
Proximate  Cause   of  Injurj',  see   Proximate 

Cause,  135. 

3.  Persons   in  charge   of  a   state  convict 


738 


COOLING  TIME— COPYRIGHT. 


are  not  liable  in  damages  for  criminal  tort 
committed  by  him  while  at  large,  whether 
at  large  by  their  permission  or  because  of 
their  negligence,  unless  they  were  in  some 
way  connected  with  the  perpetration  of  the 
tort,  or  had  reasonable  grounds  for  appre- 
hending that  it  would  be  committed.  Hen- 
derson V.  Dade  Coal  Co.  100  Ga.  568,  28 
S.  E.  251,  40:  95 

4.  Knowledge  that  a  felony  convict  about 
thirty-seven  years  old,  who  had  been  con- 
tinuously in  the  penitentiary  for  about 
twelve  years,  and  who  had  five  times  es- 
caped therefrom,  was  "a  man  in  robust  and 
vigorous  health,  immoral,  brutish,  devilish, 
of  vicious  habits,  of  violent  passions,*'  in- 
cluding sexual  passion,  and  a  person  "not 
restrained  by  any  convictions  of  right  and 
wrong  or  governed  by  any  principles  of 
morality," — does  not  constitute  ground  of 
apprehension  that  he  will  commit  the  crime 
of  rape  when  opportunity  occurs,  so  as  to 
render  his  custodians  liable  for  damages  on 
account  of  such  a  crime  committed  by  him 
while  at  large  through  their  fault.  Id. 
Means  for  identifying. 

5.  The  photograph,  description,  and  meas- 
urement of  one  sentenced  to  a  state  prison, 
which  the  law  requires  the  superintendent 
of  prisons  to  secure  and  preserve,  are  a  part 
of  the  public  records  which  the  superintend- 
ent has  no  power  to  remove  or  destroy,  even 
though  the  prisoner's  sentence  is  after- 
wards reversed,  and  he  is  subsequently  ac- 
quitted of  the  charge  against  him.  Re  Mol- 
ineux,  177  X.  Y.  3D5,  G9  N.  E.  727,        65:  104 

6.  One  convicted  of  murder,  and  remanded 
to  the  warden  of  the  state  prison  to  be 
kept  in  solitary  confinement  awaiting  exe- 
cution, is  within  the  operation  of  a  statute 
requiring  prisoners  received  under  sentence 
in  the  state  prison  to  be  measured  and  de- 
scribed in  accordance  with  the  Bertillon  sys- 
tem for  the  identification  of  criminals.       Id. 

Editorial  Xotes. 

§  I.  Generally. 

Efi"ect  of  conviction  on  marriage.     31:  515. 

Right  to  compel  prisoners  to  labor.     27:  593. 

Ordinance  against  convict  labor  in  street. 
3i):  6S0. 

Liability  of  county  on  account  of  escape 
from    prison.      39:  GO. 

Justification  of  prison  breach.     15:190. 

Right  of  peace  officer  to  enter  dwelling  to 
recapture  escaping  pris- 
oner.    10:501. 

Service  of  process  on  prisoner.     46:  7U6. 

Claim  against  state  based  on  contract  for 
prison  labor.     42:59. 

Right  of  prisoner  to  appear  unmanacled  at 
trial.     39:  821. 

§  2.  Prisoner's  right  of  action  for  confine- 
ment in  unhealthful  or  unfit  prison. 

Liability  of  county.     36:  293. 

Liability  of  municipality.     30:  21)3. 

Individual  liability  of  keeper.    36:  2D4. 

Right  to  prevent  use  of  jail.     30:  29J 


COOLING  TIME. 
Question  for  Jury  as  to,  see  Trial,  22L 
♦  *» 


CO-OPERATIVE  STORE. 

Subscription  to  Stock  for  Establishment  of, 
see  Partnership,  6. 

♦-•-• 


COPARCENERS. 


Contribution  between,  see  Cotenancy,  29-32. 
Accounting  Between,  see  Cotenancy,  24. 


COPY. 

As   Evidence,   see   Evidence,   794-799. 
Of  Information,  see  Indictment,  etc.,  5. 

A  copy  of  an  instrument  is  a  repro- 
duction or  imitation  of  it,  and  a  transla- 
tion is  not  a  copy.  Rasmussen  v.  Baker, 
7  Wyo.  117,  50  Pac.  819,  38:  773 


COPYRIGHT. 


Construction  of  Contract  for,  see  Contracts, 

344. 
Injunction  against,  see  Injunction,  471. 
License     to     Publish     Distinguished     from 

Agency,  see  Principal  and  Agent,  3. 
Taxation  of,  see  Taxes,  17,  and  also  infra. 

Editorial  Notes. 

1.  The  common-law  right  of  an  author  to 
his  unpublished  manuscript  is  not  abrogated 
by  the  copyright  acts  of  Congress.  Press* 
Pub.  Co.  V.  Monroe,  19  C.  C.  A.  429,  38  U. 
S.  App.  410,  73  Fed.  196,  51:353 

2.  A  statistical  atlas  is  properly  copy- 
righted as  a  whole;  it  is  not  necessary  to 
copyright  separately  each  map  in  the  book. 
Black  V.  Henry  G.  Allen  Co.  42  Fed.  618, 

9:433 

3.  Mala  fides  cannot  be  imputed  to  the 
compiler  of  an  annual  digest  of  judicial  de- 
cisions, in  usinsr  copyrighted  reports  pub- 
lished during  the  year  for  the  purpose  of 
making  such  digest.  West  Pub.  Co.  v.  Law- 
yers' Co-op.  Pub.  Co.  64  Fed.  360,  25:  441 
Reversed  on  Other  Grounds  in  51  U.  S. 
App.  216,  79  Fed.  756,  35:400 

4.  That  the  publisher  of  an  author's  copy- 
righted work  is  not  authorized  to  sell  un- 
bound copies  will  "^ive  the  author  no  right 
of  action  against  another  publisher  who 
purchases  unboiuid  shoots,  which  he  binds 
md  sells.  Kipling  v.  G.  P.  Putnam's  Sons, 
57  C.  C.  A.  295,  120  Fed.  631,  65:  873 

5.  An  author's  reservation  of  "copyright" 
in  an  ode  written  for  the  World's  Columbian 
l-A'position.  subject  to  the  cojic^ssion  that 
in  addition  to  the  delivery  of  the  ode  at 
the  Exposition  the  Exposition  Company 
shall    have   the   right   to   publish   it   in  the 


COPYRIGHT. 


78» 


final  history  thereof  and  to  furnish  copies 
to  the  newspaper  press  and  for  free  dis- 
tribution, is  not  invalid,  although  it  accom- 
panies an  acknowledgment  of  the  receipt 
of  money  "in  full  pavineiit  for  ode  composeJ 
by  me."  Press  Pub.' Co.  v.  Monroe,  19  C.  C. 
A.  429,  38  U.  S.  App.  410,  73  Fed.  196, 

51:  353 
What  subject  of. 
See  also  infra.  Editorial  Notes,  §  2. 

6.  The  compiler  of  a  digest  has  no  monop- 
oly of  the  opinions,  decisions,  and  syllabi 
prepared  by  the  courts  and  judges,  even 
though  he  has  previously  published  them  in 
copyrighted  pamphlets.  West  Pub.  Co.  v. 
Lawyers'  Co-Op.  Pub.  Co.  64  Fed.  360, 

',  25:441 
[Reversed  on  Other  Grounds  in  51  U.  S 
App.  216,  79  Fed.  756,  35:  400] 

7.  A  valid  copyright  may  be  had  by  one 
reporting  judicial  decisions  for  his  original 
work  published  in  connection  with  the  opin- 
ions and  syllabi  prepared  by  the  judge.  Id. 

8.  A  photograph  of  a  yacht  under  sail  is 
a  proper  subject  of  copyright,  where  the 
photographer  is  required  to  select  and  util- 
ize the  best  effects  of  light,  cloud,  and  wa- 
ter, and  general  surroundin?s,  and  combine 
them  under  favorable  conditions.  Bolles  v. 
Outing  Co.  23  C.  C.  A.  594,  45  U.  S.  App.  449, 
77  Fed.  966,  46:  712 

9.  The  market  quotations  and  sporting 
news  gathered  by  a  telegraph  company,  and 
delivered  to  its  patrons  by  means  of  tick- 
ers, are  not,  as  so  delivered,  within  the  pro- 
tection of  the  United  States  copyright  laws. 
National  Teleg.  News  Co.  v.  Western  U. 
Teleg.  Co.  56  C.  C.  A.  190,  119  Fed.  294, 

60:  805 
Notice. 
See  also  infra,  Editorial  Notes,  §  3. 

10.  The  figures  "93"  in  a  copyright  notice 
sufficiently  designate  the  date  as  1893. 
Bolles  v.  Outing  Co.  23  C.  C.  A.  594,  45  U.  S. 
App.  449,  77  Fed.  966,  46:  712 

11.  A  copyright  notice  is  sufficient  where 
it  has  the  author's  surname  and  his  resi- 
dence and  place  of  business,  and  there  is  no 
other  person  of  the  same  name  in  the  same 
business,  although  it  does  not  give  his 
initials  or  Cliristian  name.  Id. 

12.  The  inadvertent  omission  of  a  copy- 
right notice  from  the  publication  of  a  copy- 
righted article  by  a  licensee  of  the  own- 
er of  the  copyright  does  not  withdraw  the 
protection  of  the  copyright,  or  absolve  an- 
other, who  publishes  the  matter  without  au- 
thority, from  liability  in  damages,  although 
he  was  ignorant  of  the  existence  of  the 
copyright.  American  Press  Asso.  v.  Daily 
Story  Pub.  Co.  57  C.  C.  A.  70,  120  Fed.  766. 

66:  444 
Publication;  how  right  to  copyright  lost. 
See  also  supra,  12. 

13.  Exhibition  of  a  painting  at  an  acad- 
emy of  arts  to  which  the  public  is  admitted 
only  by  payment  of  a  fee,  and  the  rules 
of  which  expressly  forbid  pitrons  to  copy 
paintines  while  so  on  exhibition,  is  not  a 
publication,  although  it  contains  no  notice 
"f  copyright,  which  will  prevent  the  artist 
or  his  assignee  from  enforcing  against  per- 


sona subsequently  attempting  to  publish 
copies  of  it  for  commercial  purposes  lae 
rights  which  would  have  been  secured  by 
compliance  with  the  copyright  law.  Werck- 
meistcr  v.  American  Lithographic  Co.  134 
Fed.  321,  68:  591 

14.  A  book  is  published  so  as  to  defeat 
what  is  known  as  the  common-law  copy- 
right, or  right  of  first  publication,  if  it  is 
out  within  reach  of  the  general  public  so 
that  all  may  have  access  to  it,  no  matter 
what  limitations  be  put  upon  the  use  of  it 
by  the  individual  subscriber  or  lessee.  Jew- 
elers' Mercantile  Agency  v.  Jewelers'  "Week- 
ly Pub.  Co.  155  N.  Y.  241,  49  N.  E.  872, 

41:  846 

15.  A  lease  of  the  reference  books  of  a 
mercantile  agency  to  subscribers,  retaining 
title  and  providing  that  the  books  shall  be 
returned  when  the  subscription  expires,  con- 
stitutes a  publication  which  will  defeat  a 
common-law  copyright.  Id. 

10.  An  author  who  permits  the  publica- 
tion in  a  magazine  of  chapters  of  a  book 
on  which  he  has  secured  a  copyright  without 
any  notice  other  than  the  general  notice  by 
the  publishers  of  the  magazine  of  a  copy- 
right of  its  matter  loses  his  exclusive  rights 
under  his  copyright.  Mifflin  v.  R.  H.  white 
Co.  50  C.  C.  A.  661,  112  Fed.  1004,        61:  134 

17.  Permitting  the  use  of  a  copyrighted 
article  in  a  foreign  encyclopedia,  the  remain- 
der of  which  is  written  by  foreigners  and 
publici  juris  in  this  country,  does  not  war- 
rant its  insertion  in  an  unauthorized  reprint 
of  the  encyclopedia  here,  by  a  third  person. 
Black  V.  Henry  G.  Allen  Co.  42  Fed.  618, 

9:  433 

18.  An  author  who,  after  publishing  a 
manuscript  in  a  magazine  under  a  copyright 
notice  in  the  name  of  the  publisher,  pub- 
lishes it  in  book  form  with  a  copyright  no- 
tice in  his  own  name,  making  no  reference 
to  the  former  one,  abandons  the  work  to  the 
public.  Midlin  v.  R.  H.  White  Co.  50  C.  C. 
A.  661,  112  Fed.  1004,  61:  134 
What  covered  by. 

19.  The  copyright  of  a  new  edition  of  an 
author's  works  covers  only  new  matter  con- 
tained in  them.  Kipling  v.  G.  P.  Putnam's 
Sons,  57  C.  C.  A.  295,  120  Fed.  631,  65:  873 
Effect  of. 

20.  A  statutory  copyright  operates  to  de- 
vest a  party  of  the  common-law  right.  Jew- 
elers' Mercantile  Agency  v.  Jewelers'  Week- 
ly Pub.  Co.  155  N.  Y.  241,  49  N.  E.  872, 

41:846 
Assignment  of  interest  in. 
See  also  infra.  Editorial  Notes,  §  1. 

21.  An  inchoate  right  to  a  copyright 
may,  prior  to  the  taking  of  the  copyright, 
be  transferred  by  parol.  Black  v.  Heriry  G. 
Allen  Co.  42  Fed.  618,  9:  433 

22.  The  owner  of  a  copyright  may  assign 
aft  undivided  interest  therein,  so  that  the 
copyright  becomes  the  undivided  property 
of  joint  owners.  He  may  also  assign  or 
transfer,  in  equity,  an  exclusive  right  to 
use  the  copyrighted  work  in  a  particular 
manner  or  for  particular  purposes  upon 
such  terms  and  conditions  as  may  be  agreed 
upon.  Id. 


740 


COPYRIGHT. 


Infringement. 

Burden  of  Proof  as  to,  see  Evidence,  364. 
748,  749. 

Evidence  as  to,  see  Evidence,  2074. 

Sufficiency  of  Proof  as  to,  see  Evidence, 
2352,"  2353. 

Suit  by  Foreign  Administrator  for,  see  Ex- 
ecutors and  Administrators,  114. 

Injunction  against,  see  Injunction,  430,  431. 

Libelous  Charge  of,  see  Libel  and  Slander. 
89. 

Allegation  as  to,  see  Pleading,  420-422. 

See  also  infra,  Editorial  Notes,  §§  1,  2. 

23.  A  newspaper  publication  of  an  ode 
written  for  the  World's  Columbian  Exposi- 
tion, made  before  the  delivery  of  the  ode  at 
the  Exposition  or  its  publication  elsewhere, 
and  without  the  consent  of  the  author  or 
of  the  Exposition  Company,  for  which  it 
was  written,  is  a  violation  of  the  rights  of 
the  author,  which  makes  the  newspaper  lia- 
ble for  damages.  Press  Pub.  Co.  v.  Monroe. 
19  C.  C.  A.  429.  38  U.  S.  App.  410,  73  Fed. 
196,  51:353 

24.  One  has  a  right  to  make  and  publish 
an  index  of  copyrighted  works,  although  it 
contains  words  and  phrases  found  in  the 
text.  Kiplinsr  v.  G.  P.  Putnam's  Sons,  57 
(  .  C.  A.  295.  120  Fed.  631,  65:  873 

25.  Copyrighted  headnotes  suitable  for  use 
in  a  digest,  prepared  by  a  publisher  of  a  se- 
ries of  reports  and  a  digest,  cannot  be  used 
by  a  subsequent  compiler  of  a  digest,  either 
directly  or  by  way  of  suggestion,  to  lighten 
liis  labors,  except  as  a  guide  to  verify  the 
accuracy  of  his  work  or  detect  errors,  omis- 
sions, or  other  faults.  West  Pub.  Co.  v. 
Lawyers'     Co-Op.    Pub.     Co.    64    Fed.    360, 

25:  441 
[Reversed  on  Other  Grounds  in  .il  I'.  S. 
App.  216,  79  Fed.  756,  35:  400] 

26.  The  use  of  identical  or  similar  lan- 
guage is  not  necessary  to  constitute  an  in- 
fringement of  a  copyrightetl  syllabus  of  a 
law  report,  but  any  unfair  appropriation  of 
the  labor  of  the  original  compiler  will  con- 
stitute the  offense.  West  Pub.  Co.  v.  Law- 
yers' Co-Operative  Pub.  Co.  51  U.  S.  App. 
216,  79  Fed.  756,  25  C.  C.  A.  648.  .35:  400 
Pvev'g  64  Fed.  360.  25:  441 

27.  The  mere  circumstance  that  two  sylla- 
bi of  the  same  opinion  are  expressed  in  iden- 
tical language  is  not  always  sufficient  |)roof 
that  one  was  borrowed  from  the  other. — es- 
pecially if  the  statement  is  familiar  and 
brief.  Id. 

28.  Mere  verbal  identity  in  a  single  in- 
stance, without  the  reproduction  of  any  er- 
rors, must  be  wholly  overborne  liv  the  posi- 
live  testimony  of  the  writer  that  his  work 
was  original,  where  he  has  digested  a  great 
number  of  eases  having  copyrighted  syllabi 
which  he  is  charged  with  infringing.  Id. 

29.  Infringement  of  copyrighted  syllabi  by 
some  of  the  persons  employed  in  preparing 
a  digest  of  law  reports  will  render  the  whole 
book  subject  to  an  injunction  and  account- 
ing, when  their  work  is  so  mingled  with  the 
remainder  of  the  book  that  it  cannot  be 
segregated  without  evidence  which  the  de- 
fendant can  give,  but  does  not.  Id. 

."^0.   A    copyrighted    law    book    is    not    in- 


fringed by  a  subsequent  work  on  the  same 
subject,  where  the  second  author  merely 
collected  all  available  citations,  including 
those  found  in  the  copyrighted  work,  and, 
after  examining  the  text-books  and  opin- 
ions, used  those  which  he  considered  avail- 
able to  support  his  own  original  text.  Ed- 
ward Thompson  Co.  v.  American  Law  Book 
Co.  59  C.  C.  A.  148,  122  Fed.  922,         62:  607 

31.  The  penalty  for  infringing  copies  of  a 
photograph  published  in  a  magazine,  which, 
by  U.  S.  Rev.  Stat.  §  4965,  U.  S.  Comp.  Stat. 
1901,  p.  3414,  is  declared  to  be  $1  for  every 
sheet  found  in  the  infringer's  possession,  is 
limited  to  the  sheets  which  can  be  con- 
demned under  the  statute,  and  does  not  ex- 
tend to  sheets  which  have  formerly  been  in 
his  possession,  but  have  been  disposed  of 
without  being  so  found.  BolJes  v.  Outing 
Companv,  23  C.  C.  A.  594.  45  U.  S.  App.  449. 
77   Fed.   966,  46:  712 

32.  Procuring  an  article  which  is  to  be  in- 
serted in  a  foreign  encyclopaedia,  to  be  writ- 
ten and  copyrighted  in  this  country,  for  the 
express  purpose  of  protecting  the  encyclo- 
paedia from  being  reprinted  here  in  cheap 
form,  which  reprint  would  be  of  gi-eat  value 
to  our  people  and  could  be  made  were 
it  not  for  such  article,  is  not  such  a  fraud 
an  the  copyright  laws  as  will  prevent  a 
court  from  entertaining  jurisdiction  of  a 
bill  to  restrain  an  infringement  of  the  copy- 
riht.  Black  v.  Henrv  G.  Allen  Co.  42  Fed. 
618,  *  9:433 

Editorial  Notes. 

§  1.  Generally. 

Distinction  between  common-law  right  and 

copyright.     11:268.* 
Right  of  purchaser  of,  to  sell  it  free  from 
restrictions  affecting  it  in 
hands  of  vendor.     .55:  632. 
Assignment  of.    9:  433.* 
State  taxation  of.    57:  57. 
As  an  element  in  taxation  of  capital  stock 

of  corporation.     58:  564. 
Liability  of  officers  of  a  corporation  for  its 

infringement.     28:  426. 
Damages  for  infringement  as  affected  by  loss 

of  profits.    51 :  801. 
Directions  for  securing  under  revised  act  of 

Congress.     9:433.* 
§  2.  Common-law    rights    of    authors    and 

others  in  intellectual  productions. 
General  theories.     51:353. 
Prerogative  publications.     51 :  355. 
Parties.     51 :  358. 

Originators.  51:  358. 
Compilers.  51 :  358. 
Annotators      and      commentators.     51: 

.358. 
Successors.     51 :  359. 
Masters  and  servants.     51 :  359. 
Works.     51 :  359, 

In  general.     51:359. 

Immoral,   libelous,  or  irreligious  works. 

51 :  360, 
Letters.     51:360. 
Rights.     51:363. 

Before  publication.     51:  363. 

After  publication.     51:367. 

What  constitutes   publication.     51 :  374. 


COPYRIGHT  KOTICE -CORONER. 


741 


General  principles.     51:  374. 
What  is  a  publication.     51:  375. 
What  is  not  a  publication.    51 :  370. 
Infringements.     51:  3/8. 

Names  or  designations.    51:  378. 
Abridgments.    51:378. 
Translations.     51 :  378. 
Reproductions.     51 :  379. 
Originals.    51 :  379. 

Author's     own     obtained     surrep- 
titiously.    51:  379. 
Independent  creations.    51:379. 
Combinations.     51:  379. 
Remedies.     51:380. 
Liabilities.    51:380. 

Creditors.     51 :  381. 
Taxation.     51:381. 
§  3.  Effect     of    omitting    notice    of,    from 

licensed  publication. 
Necessity  of  notice.     66:  444. 
Variant  notices.     66:  445. 
Trade  names.     66:  445. 
Redundancy.     66: 445. 
Inversion.     66:  445. 
Location.     66 :  446. 
Defective  notices.     66:  446. 

Material  omissions.     66:  446. 
Immaterial  omissions.     66:  446. 
Works  in  several  parts.     68:  446. 
When  notice  is  entirely  absent.     66:  447. 
Unpublished  copies.     66:  447. 
Authorized  publications.    66:  447. 
Before  copyright.     66:  447. 
After  copyright.     66:  447. 
Unlicensed  publications.     66:  448. 

By  parties  in  privity  with  the  pro- 
prietor.    66 :  448. 
By  pirates.     66:  448.     • 
After  notice  has  been  erased.     66: 
449. 
Patents.     66:449. 


COPYRIGHT  NOTICE. 

See  Copyright,  10-12. 


CORAM   NOBIS. 


1.  Relief  from  a  plea  of  guilty  and  a  sen- 
tence thereon  may  be  granted  by  an  action 
or  proceeding  in  the  same  court  in  the  na- 
ture of  a  writ  of  error  coram  nobis,  where 
the  plea  was  made  under  well-grounded 
fear  of  mob  violence.  State  v.  Calhoun,  50 
Kan.  523,  32  Pac.  38,  18:  8.3S 

2.  The  question  of  guilt  or  inifocenee  of 
the  accused  is  not  a  necessary  question  to 
be  determined  in  an  action  in  the  nature  of 
a  writ  of  error  coram  nobis  for  relief  from 
a  plea  of  guilty  induced  by  fear  of  mob 
violence,  as  the  burden  of  proof  cannot  be 
shifted  to  the  accused  by  reason  of  the  fact 
that  he  was  compelled  through  fear  to  plead 
guilty.  _  Id. 

3.  No  statute  of  limitations  will  operate 
against  the  remedy  of  a  party  while  under 
the  legal  disability  of  imprisonment,  to  have 
his  sentence  reviewed  by  an  action  in  the 
nature  of  a  writ  of  error  coram  nobis.       Id. 


4.  A  writ  of  error  coram  nobis,  or  a  mo- 
tion in  lieu  of  it,  is  not  a  proper  process  to 
reverse  a  judgment  because  of  the  defend- 
ant's insanity,  as  the  judgment  can  only  be 
affected  in  equity,  which  has  jurisdiction  in 
such  cases.  Withrow  v.  Smithson,  37  W. 
Va.  757,  17  S.  E.  316,  19:  762 

5.  The  writ  of  error  coram  nobis  will  not 
lie  to  vacate  a  judgment  of  conviction  and 
secure  a  retrial  of  the  accused,  because  of 
his  inability  within  statutory  limits  of  time 
to  prepare  a  record  on  appeal  showing  the 
errors  of  which  complaint  was  made,  as 
such  writ  lies  only  to  correct  errors  of  fact 
in  ignorance  or  disregard  of  which  the  judg- 
ment was  pronounced,  and  to  relieve  from 
which  no  other  remedy  exists.  Collins  v. 
State,  66  Kan.  201,  71  Pac.  251,  60:  572 

Editorial  Notes. 

Writ  of  error  coram  nobis.     18:  838. 
Scope  of  the  writ.     18:  839. 
Right  to  the  writ.    18:  841. 
Limitations.     18:  842. 
Procedure.     18:  842. 


CORNELL  UNIVERSITY. 

See  Colleges,  3,  4. 


CORNER  LOTS. 


Assessment  of,  for  Street  Improvements,  see 
Public  Improvements,  192-194.  . 


♦  •» 


CORONER. 

Ordering  Post  Mortem  Examination,  see 
Corpse,  6,  7. 

Admissibility  of  Inquest  of,  see  Evidence, 
859,  860,  and  also  infra,  Editorial  Notes. 

Inquest  of,  as  Evidence,  see  Evidence,  883, 
884. 

Evidence  of  Confessions  at  Inquest,  see  Evi- 
dence, I448-I451,  and  also  infra.  Ed- 
itorial Notes. 

Failure  to  Claim  Privilege  as  Witness  at 
Inquest,  see  Witnesses,  145. 

Impeachment  of  Witness  by  Testimony  at 
Inquest,  see  Witnesses,  150. 

Service  of  Writ  by,  see  Writ  and  Process,  8. 

1.  The  "viewing"  in  Neb.  Comp.  Stat, 
chap.  28,  §  7,  allowing  fees  to  a  coroner  for 
viewing  a  dead  body,  means  an  inspection 
and  investigation  by  a  coroner  with  a  jury; 
and  he  is  not  entitled  to  fees  for  viewing  the 
body  of  a  person  found  dead,  unless  a  jury 
is  impaneled.  Lancaster  County  v.  HolyoKe, 
37  Neb.  328,  55  N.  W.  950,  21 :  394 

2.  A  coroner  can  lawfully  hold  an  in- 
quest, under  the  Nebraska  statutes,  upon 
the  dead  bodies  of  only  such  persons  as  are 
supposed  to  have  died  by  unlawful  means, 
although  at  common  law  a  coroner  was  re- 
quired to  hold  an  inquest  over  the  body  of  a 
person  who  died  from  visitation  of  God,  by 


742 


CORPORAL  PUNISHMENT;  CORPOHATIONS. 


chance  or  accident,  or  by  his  own  hand  or 
the  hand  of  another.  Id. 

3.  The  verdict  of  a  coroner's  jury  is  not 
subject  to  be  reviewed,  set  aside,  or  quashed 
in  the  Georgia  superior  court,  either  at  the 
instance  of  the  person  accused  by  it,  or  any 
other  person,  as  it  is  advisory  merely  to  the 
officers  charged  with  the  execution  of  the 
public  law  in  case  of  homicide,  binds  no  one 
as  a  judgment,  has  no  probative  effect  as 
evidence,  and  can  prejudice  the  rights  of  no 
one.  Smalls  v.  State,  101  Ga.  570,  28  S. 
E.981,  40:369 

Editorial  Notes. 

Power  of,  to  order  post  mortem  examina- 
tion.   31:540. 
Admissibility  of  finding  of.   to  show  cause 

of  death.    68:285. 
Admissibility  on  trial  for  murder,  of  testi- 
mony of  accused  at  coro- 
ner's inquest.     70:  33. 
When  coroner's  inquest  necessary  or  proper. 
21:394. 
Second  inquest.     21:  395. 
One  inquest  on  several  bodies.    21:  395. 
Locality.    21 :  395. 
Statutory  provisions.     21:396. 


CORPORAL  PUNISHMENT. 

By  Teacher,  see  Schools,  59-61. 

Editorial  Notes. 

Liability  of  school  teacher  for  personal  in- 
jury to  pupil.     65:  8rf6. 


CORPORATIONS. 


I.  Nature;  Creation;   Franchises. 

a.  In  General. 

b.  Corporate  Purposes. 

e.  De  Facto  Corporation, 
d.  Names. 
n.  Consolidation;  Reorganization;  Trans- 
fer of  Franchises. 

III.  Charters;  Articles  of  Incorporation. 

IV.  Powers,  Liabilities,  and  Officers. 

a.  Rights  and  Powers  Generally. 

b.  Owning   Stock   of   Other  Compa- 

nies. 

c.  Mode  of  Corporate  Action;   Acts 

of  Agents. 

d.  Contracts;   Ultra  Vires. 

1.  Power  to  Contract. 

2.  Right  to  Set  up  Ultra  Vires 

as  Defense. 

3.  Formal  Requisites. 

4.  Ratification. 

e.  Property    Rights. 

f.  Liabilities. 

g.  Officers;   Meetings. 

1.  In  General;    Qualifications. 

2.  Powers. 


IV. — continued. 

3.  Compensation. 

4.  Fiduciary   Relation. 

5.  Liabilities. 

a.  To  Stockholders  or  Cred- 
itors. 

(1)  In  General 

(2)  For  Failure  to  Re- 

port. 

(3)  For  Excess  of  In- 

debtedness. 
6.  For  Torts  or  Nuisances. 

6.  Meetings. 
h.  Promoters. 

V.  Capital;  Stock  and  Stockholders. 

a.  In  General;  Issue  of  Stock. 

b.  Subscriptions. 

1.  In  General. 

2.  Payment. 

c.  Transfers;  Lien. 

1.  In  General. 

2.  Prior  Right  of  Purchase. 

3.  Lien. 

d.  Forged  or  Fraudulent  Issue. 

e.  Rights  of  Shareholders. 

1.  In  General. 

2.  Actions  by. 

3.  Right  to  Inspect  Books. 

4.  Dividends. 

f.  Liability  of  Shareholders. 

1.  In  General. 

2.  Effect    of    Transfer.' 

3.  For  Unpaid  Stock. 

a.  In  General. 
6.  (Stock  Paid  for  in  Prop- 
erty. 

4.  Proceedings  to  Enforce. 

g.  Stockholders'  Meetings;  Voting. 

1.  In  General. 

2.  Voting. 

a.  In  General. 
6.  Who  Entitled  to  Vote. 
VT.  Dissolution;   Forfeiture;   Insolvency. 

a.  In  General. 

b.  Grounds  of  Forfeiture. 

c.  Effect  on  Property  Rights. 

d.  Effect  on  Causes  of  Action; 

e.  Procedure;  Power  of  Equity  as  to. 

f.  Insolvency;  Right  and  Preferences 

of  Creditors. 

1.  In  General. 

2.  Preferences. 
VIT.  Foreign   Corporations. 

a.  In  General. 

b.  Doing  Business  Within  State. 

c.  Actions  by  or  against. 

d.  Winding  up ;  Insolvency. 
VIII.  Editorial  Notes. 

Acknowledgment  of   Deed   or   Mortgage  to, 

see   Acknowledgment.    1,   5,   6. 
Agricultural   Societies   as,    see   Agricultural 

Societies. 
Bonds  of,  see  Bonds,  III.  a. 
By-laws  of,   see  By-Laws,   and   also   infra, 

VI IL  §  9. 
Charitable  Gift  to  Corporation  to  be  Created, 

see  Charities,  63,  and  also  infra,  VIII. 

§   1. 
Perversion  of  Charitable  Fund  by  Distribu- 
tion Among  Members,  see  Charities,  77. 


CORPORATIONS,  1.  a. 


74n 


Interstate  Business  of,  see  Commerce,  and 
also  infra,  VIII.  §  53. 

Self-Executing  Provisions  as  to,  see  Consti- 
tutional Law,  85-89. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  II.  a,  3. 

Class  Legislation  as  to  Employees  of,  see 
Constitutional   Law,   II.   a,   5,   c. 

As  to  Freedom  of  Contract  with  Employees, 
see  Constitutional  Law,  II.  b,  4,  b. 

Police  Regulation  of  Matters  Pertaining  to 
Employees,  see  Constitutional  Law,  II. 
c,  4,  c. 

Impairment  of  Obligation  as  to,  see  Con- 
stitutional Law,  II.  g,  1,  a  (2). 

As  Person,  see  Constitutional  Law,  392,  638, 
039,  and  also  infra,  VIIL  §     2. 

Jurisdiction  of  Generally,  see -Courts,  I.  b, 
4;  L  d;  III.;  and  also  infra,  VIIL  §§  1, 
3. 

Citizenship  of,  for  Jurisdictional  Purposes, 
see  Courts,  344e,  and  also  infra,  VIIL  § 
2. 

Sequestration  of  Property  of,  in  Federal 
Court,  see  Creditors'  Bill,  II. 

Bill  of  Discovery  Against,  see  Discovery  and 
Inspection,  10,  12. 

Right  to  Relief  in  Equity,  see  Equity,  98- 
101,  and  also  infra,  VIIL  §  3. 

Estoppel  as  to  Corporate  Existence  or  Pow- 
ers, see  Estoppel,  III.  c,  and  also  infra, 
VIIL  §  1. 

Judicial  Notice  as  to,  see  Evidence,  100. 

Presumption  and  Burden  of  Proof  as  to,  see 
Evidence,  II.  f. 

Secondary  Evidence  of  Books  and  Papers  of, 
see  Evidence,  786,  787. 

Records  and  Papers  of,  as  Evidence,  see  Evi- 
dence, TV.  1. 

Property  of,  as  Assets  for  Administration, 
see  Executors  and  Administrators,  100. 

Garnishment  of  Agent  or  Officer,  see  Gar- 
nishment, 7,  15. 

Habeas  Corpus  to,  see  Habeas  Corpus,  45. 

Injunction  as  to  Corporate  Matters,  see  In- 
junction, I.  g. 

Restricting  Insurance  Business  to,  see  In- 
surance, 4. 

Conclusiveness  Against  Stockholder  of  Judg- 
ment AfTecting  Corporation,  see  Judg- 
ment, 285-293,  359. 

Limitation  of  Action  against,  see  Limitation 
of  Actions,   67-69. 

Libel  of  Emplovee  of,  see  Libel  and  Slan- 
der, 109-112. 

Action  by,  for  Slander  of  Title,  see  Libel 
and  Slander,  172. 

Mandamus  to.  see  Mandamus,  I.  e,  and  also 
infra,  VIIL  §  3. 

Mortgage  by,  see  ^lortgage,  especially  I.  f. 

Delegation  to,  of  Power  to  Appoint  Officers, 
see  Officers,  54-56. 

As  Parties  in  Action,  see  Parties,  II.  a,  5. 

Plearlini  fs  to.  see  PleaHin?.  4,  94.  95.  109, 
206,  207,  429,  432.  522-526b. 

Donation  of  Public  Funds  to,  see  Public 
Moneys,  32,  42,  48. 

Ouo  Warranto  to.  see  Quo  Warranto.  II.  a. 

Receiver  for,  see  Receivers. 

Removal  of  Causes  by,  or  against,  see  Re- 
moval of  Causes,  11-17. 

Owned  by  State,  see  State  Institutions. 


Title  of  Statute  as  to,  see  Statutes,  187 
201,  249. 

Special  Legislation  as  to,  see  Statutes,  302- 
314. 

Power  of  State  or  Territory  to  Tax  Federal 
Corporations,  see  Taxes,  1.  b. 

Place  where  Taxable,  see  Taxes,  I.  e,  2;  II. 

Liability  to  Taxation,  see  Taxes,  I.  e,  3,  4. 

Exemption  of,  from  Taxation,  see  Taxes,  I. 
f,  2,  3. 

Assessment  and  Enforcement  of  Tax,  sec- 
Taxes,  IIL 

Question   for    Jury  as  to,  see  Trial,    175 
177. 

As  Trustee,  see  Trusts,  109-111. 

Venue  of  Action  against  Foreign  Corpora- 
tion, see  Venue,  13-16. 

Service  on,  see  Writ  and  Process,  11.  b,  TV.  § 
56. 

Various  Particular  Associations  or  Corpo- 
rations, see  Associations;  Banks;  Build- 
ing and  Loan  Associations;  Charitable 
Institutions;  Counties,  24;  Insurance; 
Joint  Stock  Company;  Municipal  Corpo- 
rations; Railroads;  Religious  Societies; 
Stock  Yards  Company;  Street  Rail- 
ways; Syndicate;  Telegraphs;  Tele- 
phones: Tolls  and  Toll  Roads;  Waters, 

in. 


L  Nature;  Creation;  Franchises, 
a.  In  G«neral. 

Delegation  of  Power  to  Create,  see  Benevo- 
lent Societies,  8. 

Construction  of  Constitution  as  to  Continu- 
ing, see  Constitutional  Law,  46. 

Validity  of  Contract  against  Organizing,  see 
Contracts,  477. 

Presumption  as  to  Incorporation  of  Bank, 
see  Evidence,  402. 

Evidence  as  to  Corporate  Existence,  see  Evi- 
dence, 2179,  2358. 

Right  of  Action  for  Invasion  of  Franchise, 
see  Parties,  8. 

Sufficiency  of  Averment  of  Incorporation, 
see  Pleading,  207. 

Denial  of  Corporate  Existence,  see  Pleading, 
523. 

Incorporation  of  Religious  Society,  see  Re- 
ligious Societies,  1. 

Title  of  Statute  as  to,  see  Statutes,  188- 
191,  249. 

Question  for  Jury  as  to,  see  Trial,  175. 

Power  of  Trustees  to  Incorporate  Estate,  see 
Trusts,  133. 

See  also  infra,  161,  178;  Trial,  1. 

For  Editorial  Notes,  see  infra,  VHI.  §§  1,  2. 

1.  A  corporation  is  an  artificial  person 
created  by  law  as  the  representative  of  those 
persons,  natural  or  artificial,  who  contribute 
to  or  become  holders  of  shares  in  the  prop- 
erty intrusted  to  it  for  a  common  purpose. 
Re  Gibb's  Estate,  157  Pa.  59,  27  Atl.  383, 

82:270 


744 


CORPORATIONS,  I.  b. 


la.  The  term  "person,"  used  in  law,  in- 
cludes corporations,  unless  there  is  some- 
thing in  the  law  showing  the  legislative  in- 
tention to  restrict  its  application.  Craf- 
ford  V.  Warwick  County  Supers.  87  Va.  110. 
12  S.  E.  147,  10:  129 

2.  A  de  jure  corporaticwi  is  one  whose 
right  to  exercise  a  corporate  function  would 
prove  invulnerable  if  assailed  by  the  state 
in  quo  warranto  proceedings.  Capps  v. 
Hastings  Prospecting  Co.  40  Neb.  470.  58 
X.  W.  956,  24:  259 

3.  The  existence  de  jure  of  a  corporation 
may  be  challenged  only  by  public  authority 
in  the  manner  provided  by  law.  Andrews  v. 
National  Foundry  <t  P.  Works,  22  C.  C.  A. 
110.  46  r.  S.  App.  281,  76  Fed.  166,  36:  139 

4.  A  private  corporation  is  not  made  a 
l)ublic  institution  by  the  fact  that  it  is  sub- 
ject to  visitation  and  inspection  by  public 
officials.  Wisconsin  Keeley  Institute  Co.  v. 
Milwaukee  County.  95  Wis.  153.  70  N.  W. 
68.  36:  55 

5.  A  corporation  is  an  inhabitant  of  the 
state  that  created  it,  or  of  the  state  where 
it  keeps  its  records  and  principal  office. 
Connor  v.  Vicksburg  &  M.  R.  Co.  36  Fed.  273, 

I:  331 

6.  A  corporation  exists  only  in  contempla- 
tion of  law  and  by  force  of  law,  and  can 
have  no  legal  existence  beyond  the  state  or 
sovereigntv  by  which  it  is  created.  Rece  v. 
Newport  News  &  M.  V.  Co.  32  W.  Va.  164, 
9  S.  E.  212,  :?:  572 

7.  The  legal  fiction  that  a  corporation  is 
a  legal  entity  may  be  disregarded  when 
urged  to  an  intent  and  purpose  not  within 
its  reason  and  policv.  State  ex  rel.  Watson 
v.  Standard  Oil  Co.'  49  Ohio  St.  137,  30  N. 
E.  279,  15:  145 

8.  One  person  cannot  conduct  his  ordinary 
business  in  the  name  of  a  corporation,  under 
Ky.  Gen.  Stat.  chap.  56,  which  provides  that 
•'any  number  of  persons  may  associate  them- 
selves together  and  become  incorporated." 
Louisville  Bkg.  Co.  v.  Eisenman,  94  Kv.  83. 
21  S.  W.  531,  19:  684 

9.  A  charter  restriction  of  the  right  to 
membership  in  a  corporation  to  persons  of 
a  certain  nationality  is  not  invalid.  nnle».- 
prohibitcd  bv  statute.  Blien  v.  Rand,  77 
Minn.  110,  79  N.  W.  606,  46:  6i« 

10.  That  a  corporation  had  no  charter  ex- 
istence on  the  day  of  the  grant  to  it  of  a 
franchise  to  light  the  streets  of  a  city  does 
not  render  the  franchise  inoperative,  where 
it  afterwards  obtained  a  charter  and  ac- 
cepted the  grant.  Clarksburg  Electric  Lisjht 
Co.  V.  Clarksburg,  47  W.  Va.  739.  35  S.'  E. 
994.  50:  142 

11.  The  subjection  of  what  purports  to  be 
a  corporation,  but  has  no  legal  existence  as 
such  because  of  the  nonpayment  of  the  bo- 
nus tax  imposed  by  IMd.  act  1800,  chap.  530. 
to  a  suit  by  the  state  for  the  recovery  of 
the  tax  by  Md.  Code.  §  88h.  docs  not.  by  im- 
plication, give  it  a  legal  existence  for  all 
purposes,  includine  a  capacity  to  sue.  as  it 
is  expressly  denied  the  exercise  of  any  cor- 
porate powers  until  the  bonus  is  paid,  bv  ? 
S8f.  Marvland  Tube  *  I.  Works  v.  Wc-^t 
End   Improv.   Co.   87   Md.   207.   30  Atl.   620. 

30:  810 


Constitutional  control  and  regulation. 
See  also  infra,  90;  Statutes,  14, 

12.  A  water  company  entering  upon  the 
business  of  furnishing  a  public  water  supply 
under  a  constitution  giving  a  tribunal  the 
right  to  fix  water  rates  is  bound  to  submit 
to  the  conditions  therebv  imposed.  San 
Diego  Water  Co.  v,  San  Diego,  118  Cal.  556, 
50  Pac.  633,  38:  460 

b.  Corporate  Purposes. 

Special  Legislation  as  to,  see  Statutes,  309, 
See  also  infra,  110,  127,  140,  141. 

13.  No  corporation  can  be  organized,  under 
Minn.  Gen.  Laws  1873,  chap.  11  (Minn.  Gen. 
Stat.  1878,  chap.  34,  §§  120-143),  exccRt  for 
an  exclusively  manufacturing  or  mechanical 
business.  If  the  purpose  for  which  a  corpo- 
ration is  formed,  as  stated  in  its  articles  of 
association,  is  to  carry  on  a  manufacturing 
or  mechanical  business,  and  also  some  other 
and  distinct  kind  of  business  not  properly 
incidental  to  or  connected  with  the  former,  it 
will  belong  to  the  class  of  corporations  au- 
thorized to  be  formed  under  Minn.  Gen. 
Stat.  tit.  2,  chap.  34,  §§  109-119,  although 
the  articles  recite  that  it  is  formed  under 
the  act  of  1873,  State  ex  rel.  Clapp  v, 
Minnesota  Thresher  Mfg.  Co.  40  Minn.  213, 
41  N,  W,  1020,  3:  510 

14.  A  corporation  may  be  formed  for  the 
purpose  of  buying,  owning,  improving,  sell- 
ing, and  leasing  lands,  tenements,  heredit- 
aments, real,  personal,  and  mixed  estates, 
and  property,  including  the  constructing  and 
leasing  of  a  building,  under  an  act  author- 
izing corporations  for  trade  or  for  carrying 
on  any  lawful  mechanical,  manufacturing, 
or  agricultural  business,  Finnegan  v. 
Knights  of  Labor  Bldg.  Asso.  52  Minn.  239, 
53  N.  W.  1150,  18:  778 

15.  A  corporation  organized  for  the  drain- 
age of  a  large  tract  of  land  is  not  private, 
but  a  political  subdivision  of  the  state. 
:\Iound  Citv  Land  &  S.  Co.  v.  Miller,  170 
Mo.  240,  70  S.  W.  721,  60:  190 

16.  A  charter  may,  in  the  exercise  of  the 
sound  discretion  of  the  court,  be  refused  to 
a  religious  society  which  is  organized  to 
promulgate  not  only  religious  views,  but  a 
method  of  treating  disease  by  prayer,  based 
upon  the  theory  that  it  has  no  actual  ex- 
istence, which  theory  is  opposed  to  the  gen- 
eral policy  of  the  state  as  shown  by  the 
quarantine  laws  and  those  prescribing  the 
qualification  of  persons  who  shall  he  licensed 
to  practise  metlicine.  Re  First  Church  of 
Christ.   Scientist.  205  Pa.  543.   .i5   Atl.  536. 

63:  411 

17.  Conditions  and  limitations  attaching 
by  law  to  the  exercise  of  any  given  corpo- 
rate purposes  cannot  be  destroyed  or  sxib- 
verted  by  combinin?  such  purposes  with 
some  other,  under  one  corporation.  Inter- 
national Fraternal  Alliance  v.  State,  86  Md. 
550.  39  Atl.  512,  40:  187 

18.  Where  a  corporation  is  organized  un- 
der a  general  statute,  a  provision  in  the 
dec-laration  of  its  corporate  purpose,  the 
necessary  efi'ect  of  which  is  the  creation  of 
a  monopoly,  is  void  as  against  public  policy. 


C0RP0RA.TIONS.  I.  c.  d. 


745 


People  ex  rel.  Peabody  v.  Chicago  Gas  Trust 
Co.  130  111.  268,  22  N.  E.  789,  8:  497 

19.  The  word  "unlawful,"  as  applied  to 
the  purposes  for  which  corporations  are 
formed,  is  not  used  exclusively  in  the  sense 
of  malum  in  sc  or  malum  proloihitum.  l)ut  is 
also  used  to  designate  such  acts,  powers, 
and  contracts  as  are  ultra  vires.  la. 

20.  A  corporation  organized  with  the  ob- 
ject of  purchasing  and  holding  all  the  shares 
of  the  capital  stock  of  any  gas  company  in 
the  city  or  state  is  not  a  corporation  or- 
ganized for  a  lawful  purpose,  within  the 
meaning  of  the  Illinois  general  incorporation 
act  (111.  Rev.  Stat.  chap.  32,  §  1),  providing 
that  corporations  may  be  formed  by  any 
lawful  purpose,  within  the  exception  stated 
therein.  «  Id. 
Purpose  declared  by  corporation,    ■* 

21.  Proceedings  to  compel  persons  to  pay 
demands  of  members  of  a  plumber's  associa- 
tion by  threatening  to  expose  their  alleged 
.delinquencies  and  inform  certain  dealers 
that  they  owed  overdue  accounts,  and  there- 
by prevent  them  from  obtaining  credit  in 
the  business  which  they  are  carrying  on, 
are  not  germane  to  the  purpose  declared  by 
a  plumbers'  supply  association  "of  promot- 
ing pleasant  relations  among  its  members," 
or  "of  establishing  and  maintaining  a  place 
for  social  meetings,"  or  of  "discussing,  arbi- 
trating, and  settling  all  matters  pertaining 
to  the  prosperity  and  promotion  of  the  job- 
bing plumbers'  supply  business."  Hartnett 
V.  Plumbers'  Supply  Asso.  169  Mass.  229, 
47  N.  E.  1002,  38:  194 

c.  De  Facto  Corporation. 

Liability  of  Stockholders  in,  see  infra,  537- 
%  54.5. 

Religious  Corporation,  see  Religious  Socie- 
ties, 3. 
See  also  infra,  68,  79,  156,  375,  722,  837. 
For  Editorial  Notes,  see  infra.  \TII.  5)   1. 

22.  A  corporation  de  facto  is  an  apparent 
corporate  organization,  asserted  to  be  a  cor- 
poration by  its  members,  and  actually  act- 
ing as  such,  but  lacking  the  creative  fiat  of 
the  law.  Re  Gibbs's  Estate.  157  Pa.  59,  27 
Atl.  383,  22:  276 

23.  There  can  be  no  de  facto  corporation 
in  the  absence  of  any  legislative  provision 
for  the  organization  of  de  jure  corporations. 
Guthrie  v.  Territory  ex  rel.  Losey,  1  Okla. 
188.  31   Pac.  190.  21:  841 

24.  The  dc  facto  character  of  a  corpora- 
tion will  not  be  varied  by  the  fact  that  it 
was  insolvent  from  the  beginning.  Lg,mkin 
V.  Baldwin  &  L.  Mfg.  Co.  72  Conn.  57,  43 
Atl.  593,  1042,  44:  786 

25.  A  substantial  compliance  with  the  law 
is  not  necessarj-  to  constitute  a  body  which 
attempts  to  comply  with  it  a  de  facto  corpo- 
ration. Finnegan  v.  Knights  of  Libor  Bldg. 
Asso.  52  ]Minn.  239,  53  N.  W.  1150.       18:  778 

26.  A  de  facto  corporation  exists  where 
there  is  a  law  authorizing  the  creation  of 
corporations,  an  attempt  to  organize  a  cor- 
poration pursuant  to  it,  and  user  as  a  cor- 
poration under  such  attempted  organization. 

Id. 


27.  Railroad  companies  which  might  be 
incorporated  under  general  laws  by  observ- 
ing about  the  same  forms  and  requirements 
which  they  do  observe  in  attempting  to  be- 
come incorporated  under  special  charter  are 
de  facto  corporations,  if  the  special  charters 
are  unconstitutional.  McTighe  v.  Macon 
Const.  Co.  94  Ga.  306,  21  S.  E.  701,      32:  208 

28.  Neither  a  de  jure  nor  a  de  facto  cor- 
poration can  exist  where  the  articles  are  not 
filed  in  the  office  of  the  secretary  of  state 
and  the  fee  therefor  paid  as  required  by 
Colo.  Sess.  Laws  1887,  p.  406,  which  express- 
ly prohibits  the  exercise  of  any  corporate 
))owers  until  this  is  done.  Jones  v.  Aspen 
Hardware  Co.  21  Colo.  263,  40  Pac.  457, 

29:  143 

29.  Failure  to  file  the  articles  of  incorpo- 
ration, as  required  by  statute  in  order  to  au- 
thorize a  company  to  commence  business, 
prevents  it  from  becoming  a  corporation 
de  jure.  Capps  v.  Hastings  Prospecting  Co. 
40  Neb.  470,  58  N.  W.  956,  24:  259. 

30.  A  corporation  is  not  created  by  merely 
making  and  filing  articles  of  incorporation 
in  the  office  of  the  secretary  of  state,  where 
the  stock  has  not  been  subscribed  and  paid 
in  or  directors  chosen.  State  ex  rel.  At- 
tornev  General  v.  Fidelitv  &  C.  Ins.  Co.  49 
Ohio  St.  440,  31  N.  E.  658,  16:  611 

31.  There  can  be  no  corporation  de  facto 
where  there  is  no  law  authorizing  associated 
parties  to  file  articles  of  association,  or  to 
become  incorporated.  Eaton  v.  Walker,  76 
Mich.  579,  43  N.  W.  638,  6:  102 

32.  Carrying  on  business  in  a,  corporate 
name  is  not  evidence  of  user  which  can  be 
considered  in  aid  of  legal  corporate  exist- 
ence, where  there  is  no  law  authorizing  the 
members  to  file  tneir  articles  of  incorpora- 
tion, or  to  become  incorporated.  Id. 

33.  In  an  action  against  a  county  bj'  an 
industrial  school  for  girls  to  compel  pay- 
ment for  the  support  of  girls  committed  to 
it,  the  fact  that  plaintifl'  is  a  de  facto  cor- 
poration will  not  estop  defendant  from 
showing  that  it  has  no  legal  existence.  Cook 
County  v.  Chicago  Industrial  School  tor 
Girls,  125  111.  540,  18  N.  E.  183,  197,     1:  437 

d.  Names. 

Of  Benevolent  Societies,  see  Benevolent  So- 
cieties, 3,  4. 

Consideration  for  Agreement  Not  to  use,  see 
Compromise  and  Settlement,  11. 

Jurisdiction  of  Suit  to  Enjoin  Use  of,  see 
Courts,  429. 

Injunction  against  Use  of,  see  Injunction, 
436-439. 

Limitation  of  Action  for  Exclusive  Right  to 
Use  of,  see  Limitation  of  Actions.  224. 

Joinder  of  Corporations  to  Prevent  Decep- 
tive Use  of,  see  Parties,  116. 

Right  to  Use  of  Trade  Name,  see  Trade 
Name,  18-20. 

Setting  Forth  in  Summons,  see  Writ  and 
Process,  5. 

See  also  supra.  32;  infra,  81,  117,  118,  497; 
.Mandamus,  218. 

34.  The  right  of  a  corporation  to  the  ex- 
clusive use  of  a  name  as  against  another  or- 


746 


CORPORATIONS,  I.  d. 


ganization  using  the  same  name  does  not 
follow  from  the  fact  that  the  latter  is  doing 
an  unlawful  business.  Grand  Lodee  A.  O. 
U.  W.  V.  Graham,  96  Iowa,  592,  65  N.  W. 
837,  31 :  133 

35.  The  certificate  of  the  auditor  as  to 
the  right  of  a  corporation  to  a  name  is  not 
binding  upon  another  body  claiming  the 
right  to  the  name.  Id. 

36.  The  absence  of  fraudulent  intent  Is 
no  defense  to  a  corporation  in  a  suit  for 
wrongtully  assuming  and  using  a  name  be- 
longing to  another.  Armington  v.  Palmer, 
21  R.  I.   109,  42  Atl.  308,  43:  95 

37.  The  right  of  a  corporation  to  use  its 
name,  conferred  upon  it  by  the  act  of  in- 
corporation, being  as  much  a  part  of  its 
franchise  as  any  other  privilege  granted, 
cannot  be  annulled  at  the  suit  of  a  private 
person,  but  can  be  taken  away  only  by  an- 
other act  of  the  legislature,  or  at  the  suit 
of  the  state.  Paulino  v.  Portuguese  Benefi- 
cial Asso.  IS  R.  I.  165,  26  Atl.  36,        20:  272 

38.  A  license  to  form  a  corporation  under 
a  certain  name,  issued  by  the  secretary  of 
state,  gives  such  corporation  the  right  to 
that  name  as  against  an  already  existing 
corporation  having  a  diflerent  name,  which 
has  passed  a  resolution  and  given  notices 
for  a  meeting  to  vote  on  a  change  of  its 
name  to  that  selected  by  the  proposeu  cor- 
poration,— at  least  where  the  proposers  did 
not  know  at  the  time  of  their  license  of  the 
proposed  change.  Illinois  Watch  Case  Co.  v. 
Pearson,  140  111.  423,  31  N.  E.  440,     16:429 

39.  The  secretary  of  state  cannot  revoke 
a  license  to  form  a  corporation  under  a  cer- 
tain name,  merely  because  another  corpora- 
tion before  the  license  was  issued  had  called 
a  meeting  to  vote  on  the  question  of  adopt- 
insr  such  name  instead  of  that  which  it  then 
had.  Id. 

40.  No  suit  will  lie  in  favor  of  one  cor- 
poration, organized  under  Mass.  act  1888, 
chap.  429,  to  enjoin  either  the  organization 
of  another  corporntion  with  a  name  so  sim- 
ilar to  the  first  as  to  be  within  the  apparent 
prohibition  of  §  2  of  that  act.  or  the  use  of 
such  name,  since  §  7  makes  it  the  duty  of 
the  commissioner  of  insurance  to  determine 
whether  the  names  conflict,  before  the  cei- 
tificate,  which  is  made  conclusive  evidence 
of  the  existence  of  the  corporation,  is  is- 
sued; nor  will  the  suit  lie  to  protect  the 
first  name  as  a  trade  name,  since  it  was 
taken  subject  to  whatever  interference 
might  be  permitted  by  the  statute.  Ameri- 
can Order  of  S.  C.  v.  Merrill,  151  Mass.  o.oS, 
24N.  E.  918,  8:320 

41.  A  corporation  which  still  has  assets 
consisting  of  accounts  and  bills  and  notes 
receivable,  which  were  exempted  from  a  sale 
of  the  remainder  of  the  corporate  property, 
can.  without  showing  actual  daniajre,  re- 
strain the  use  of  its  name  by  another  cor- 
poration which  has  purchased  the  plant  and 
is  continuing  the  business  of  the  former. 
Armington  v.  Palmer,  21  R.  I.  109,  42  Atl. 
308,  43:  95 
Trarsfer  of  right  to  use. 

Estopnel  as  to.  see  Estoppel.  116. 
Transfer   to   Corporation   of   Right    to    Use 
Partnership  Name,  see  Good  Will,  3. 


42.  A  purchase  of  the  plant,  machinery, 
stock,  and  such  visible  property  of  a  manu- 
facturing corporation,  although  it  carries  the 
right  to  use  the  name  of  the  articles  manu- 
factured, does  not  give  the  purchaser  the 
right  to  take  the  name  of  the  corporation. 
Armington  v.  Palmer,  21  R.  I.  109,  42  Atl. 
308,  43:  905 

43.  A  vote  of  a  corporation  which  is  pure- 
ly voluntary  and  without  consideration,  to 
give  the  use  of  the  corporate  name  to  a  new 
corporation  which  has  previously  purchased 
the  plant  of  the  former,  is  ineff'ectual  as 
against  a  minority  who  do  not  consent.  Id. 
Right  of  seceding  body  as  to. 

44.  The  right  to  use  the  name  "Grand 
Lodge  of  the  Ancient  Order  of  United  Work- 
men of  Iowa"  cannot  be  claimed  by  a  seced- 
ing body  merely  because  it  has  become  incor- 
porated, to  the  exclusion  of  the  body  from 
which  it  seceded,  which  previously  had  used 
the  name  and  continued  to  do  so  without 
incorporation.  Grand  Lodge  A.  O.  U.  W.  v. 
Graham,  96  Iowa,  592,  65  N.  W.  837.  31:  133 
Right  of  foreign  corporation  as  to. 

See  also  Insurance,  43. 

45.  The  business  of  a  foreign  corporation 
must  be  the  same  as  that  of  a  domestic  cor- 
poration, or  so  nearly  like  it  that  it  might 
operate  to  injure  the  latter,  in  order  to  bring 
it  within  the  Massachusetts  statute  against 
doing  business  under  a  name  like  that  of 
a  domestic  company.  International  Trust 
Co.  V.  International  Loan  &  T.  Co.  153  Mass. 
271,  26  N.  E.  693,  10:  758 

46.  The  name  under  which  a  foreign  cor- 
poration actually  does  business,  and  not  its 
true  corporate  name,  is  to  be  considered  in 
determining  whether  it  violates  the  Massa- 
chusetts act  against  doing  business  under  a 
name  like  that  of  a  domestic  corporation. 

Id. 

47.  The  "International  Loan  &  Trust 
Company"  is  a  name  so  nearly  like  that  of 
the  "International  Trust  Company"  as  to 
mislead  the  public,  and  therefore  cannot  be 
used,  under  the  Massachusetts  statutes,  by 
a  foreign  corporation,  when  the  other  name 
is  already  in  use  by  a  domestic  corporation. 
But  the  addition  of  the  words  "Kansas  City" 
or  "Kansas  City,  Missouri,"  to  the  name  of 
the  foreign  corporation,  makes  the  use  of 
it  lawful.  Id. 

48.  The  words  "mortgage  loan  and  invest- 
ment business,"  in  Mass.  Acts  1889,  chap. 
452,  prohibiting  a  foreign  corporation  from 
carrying  on  such  business  under  a  name  like 
that  of  a  Massachusetts  corporation,  refer 
to  the  mortgage  business  as  one  thing  and 
the  loan  and  investment  business  as  another. 

Id. 

49.  Buyine  and  selling  investment  secu- 
rities generally,  but  chiefly  its  own  debenture 
bonds,  and  the  stocks  and  securities  of  oth- 
er companies,  and  mercantile  paper  which  a 
foreiLm  corporation  has  discounted  at  its 
principal  place  of  business  and  forwarded 
for  rediscount  in  Massachusetts,  and  receiv- 
insr  money  on  deposit  for  which  certificates 
f>f  deposit  are  issued,  and  also  receiving 
money  which  it  invests  for  customers, — fall 
within  the  "bankinfr"  or  "loan  and  invest- 
ment" business,  which  a  foreign  corporation, 


CORPORATIONS,  11. 


U1 


is  prohibited  to  engage  in  under  a  name  like 
that  of  a  domestic  corporation,  under  Mass. 
Acts  1889,  chap.  452.  Id. 


IL  Consolidation;  Reorganization;  Transfer 
of  Franchises. 

Illegal  Consolidations  in  Restraint  of  Trade 
and  Commerce,  see  Conspiracy,  174-177. 

Consolidation  of  Religious  Societies,  see  Re- 
ligious Societies,  25. 

Consolidation  of  Street  Railways,  see  Street 
Railways,  62-65. 

Allegations  as  to  Consolidation,  see  Pleading, 
526b. 

Effect  of  Adopting  Code,  on  Statute  Regu- 
lating, see  Statutes,  574.  ' 

Right  of  Successor  to  Tax  Exemption,  see 
Taxes,  249. 

Lapse  of  Legacy  by  Consolidation,  see  ^'Vills, 
440,  441. 

See  niso  infra.  209,  210,  500,  812,  813. 

For  Editorial  Notes,  see  infra,  VIIL  §§  2,  4- 
6. 

50.  The  phrase  "such  terms  as  they  may 
agree  upon,"  in  a  statute  authorizing  the 
consolidation  of  railroad  companies,  relates 
to  the  mere  administrative  details  attend- 
ing consolidation,  and  conveys  no  substan- 
tive powers  or  rights.  Adams  v.  Yazoo  & 
M.  V.  R.  Co.  77  Miss.  194,  24  So.  200.  317,  28 
So.  956,  60:  33 
Authority  to  consolidate. 

See  also  infra,  821,  822. 

For  Editorial  Notes,  see  infra,  VIIL  §  5. 

51.  Whether  or  not  the  legislature  can 
authorize  the  consolidation  of  a  corporation, 
under  the  general  power  resei*ved  to  alter  or 
annul  the  charter,  it  cannot  do  so  when  the 
rights  of  stockholders  will  thereby  be  af- 
fected by  increasing  their  liability  as  such, 
or  diminishing  the  value  of  their  stock,  un- 
less the  consolidation  is  made  by  the  unan- 
imous consent  of  the  stockholders.  Botts 
V.  Simpsonville  &  B.  C.  Tump.  Co.  88  Ky. 
54,  10  S.  W.  134,  2:  594' 

52.  The  clause  in  the  charter  of  a  turn- 
pike company,  that  it,  "in  matters  not  ex- 
pressed in  the  charter,  shall  have  the  rights 
and  privileges  granted  to  the  most  favored 
turnpike  companies,"  will  not  authorize  a 
consolidation  against  the  consent  of  the 
stockholder.  Id. 
Effect  of  consolidation. 

Jurisdiction  Over  Consolidated  Corporation, 

see  Courts,  59. 
Of  Insurance  Companies,  see  Insurance,,  1336. 
Effect  of,  on  Tax   Exemptions,  see  Taxes, 

262-266. 
For  Editorial  Notes,  see  infra,  VIII.  §§  2,  4, 

6. 

53.  The  consolidation  of  corporations  is 
a  merger,  a  union,  or  amalgamation,  by 
which  the  stock  of  the  two  is  made  one,  their 
property  and  franchises  combined  into  one, 
their  powers  become  the  powers  of  one.  their 
names  merged  into  one,  and  the  identity  of 
the  TWO  practically,  if  not  actually,  runs 
into  one.  State  ex  rel.  Nolan  v.  Montana 
R.  Co.  21  Mont.  221,  53  Pac.  623,  45:  271 

54.  A  consolidation  of  the  stock  of  cor- 


porations results  uniformly  and  necessarily 
in  the  creation  of  a  new  corporation.  Adams 
V.  Yazoo  &  M.  V.  R.  Co.  77  Miss.  194,  24 
So.  200,  317,  28  So.  956,  60:  33 

55.  A  consolidation  which  results  in  the 
formation  of  a  new  company,  and  not  mere- 
ly a  merger  of  the  constituent  companies, 
retaining  their  separate  existences,  is  au- 
thorized by  statutes  providing  for  the  con- 
solidation of  companies  under  the  name  of 
one  of  them,  without  saying  it  shall  be  un- 
der its  charter,  and  giving  to  the  new  com- 
panj'^  all  the  benefits,  rights,  franchises,  and 
property  of  the  original  companies.  Id. 
Liability  after  consoli3ation. 

56.  A  consolidated  railroad  company  may 
be  held  responsible  for  the  acts  and  neglects 
of  its  constituent  members  as  done  bj-  it 
as  a  whole.  Southern  R.  Co.  v.  Bouknight, 
25  U.  S.  App.  415,  17  C.  C.  A.  181,  70  Fed. 
442,  30:  823 

57.  A  railroad  company  formed  by  con- 
solidation of  others,  one  of  which  was  or- 
ganized by  purchasers  of  a  railroad  on  fore- 
closure, is  bound  by  the  obligation  of  the 
original  company  to  pay  for  land  which  it 
appropriated  under  a  parol  license  and 
agreement  to  pay  therefor.  Chicago  &  I. 
Coal  R.  Co.  V.  Hall,  35  Ind.  91,  34  N.  E.  704, 

23:  231 

58.  A  consolidated  corporation  which  suc- 
ceeds to  all  the  property  and  rights  of  the 
corporations  merged  in  it,  under  statutory 
provisions  which  operate  practically  to  dis- 
solve the  old  corporations  into  the  new,  but 
make  no  express  declarations  that  it  shall 
assume  or  become  liable  for  the  debts  and 
obligations  of  the  original  companies,  is  lia- 
ble for  all  their  valid  debts  and  liabilities. 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Boney,  117 
Ind.  501,  20  N.  E.  432,  3:  435 
Reorganization. 

Liabilitv  of  Stockholders,  see  infra,  594-599, 
622-624. 

Money  Judgment  against  Corporation  Buy- 
ing Property  on,  see  Judgment,  45. 

Purchase  by  Trustee  for  Bondholrlers  for 
Purpose  of,  see  Trusts,  164,  165. 

See  also  infra,  738;  Trusts,  208,  210,  Sll. 

59.  A  domestic  corporation  cannot  be  re- 
organized under  the  laws  of  another  state 
without  process  of  lawful  dissolution.  Peo- 
ple V.  Ballard,  134  N.  Y.  269,  32  N.  Ji.  54, 

17:  737 
Right  to  transfer  franchise. 
Franchise  of  Telephone  Company,  see  Tele- 
phones, 7. 
See  also  infra,  688. 

60.  Cal.  Const,  art.  4,  §  31,  providing  that 
corporations  shall  not  be  created  by  special 
act,  does  not  prohibit  the  assignment  of  a 
franchise  to  a  legally  organized  corporation 
by  persons  having  the  lawful  right  to  trans- 
fer the  same.  People  ex  rel.  Attomev  Gen- 
eral V.  Stanford,  77  Cal.  360,  19  Pac.  693, 

2:  92 

61.  A  corporation  cannot  lease  or  dispose 
of  any  franchise  needful  in  the  performance 
of  its  obligations  to  the  state,  without  leg- 
islative consent.  Stockton  v.  Central  R.  Co. 
(N.  J.  Ch.)   50  N.  J.  Eq.  52,  24  Atl.  964, 

17:97 


748 


CORPORATIONS.  III. 


62.  So  long  ii3  any  stockholder  does  not 
consent  thereto,  a  corporation  cannot  sell 
all  its  property  to  a  foreign  corporation  or- 
ganized through  its  procurement,  with  a  ma- 
jority of  nonresident  trustees,  for  the  ex- 
press purposes  of  stepping  into  its  shoes, 
taking  all  its  assets,  and  carrying  on  busi- 
ness. People  V.  Ballard,  134  N.  Y.  269,  32  IM. 
E.  54,  17:  737 
Liability  of  transferee. 

Evidence  as  to  True  Character  of  Transac- 
tion, see  Evidence,  2180. 
Creditor's  Right   of  Action,  see  Parties,  56. 
For  Editorial  Notes,  see  infra,  VIII.  §  6. 

63.  To  render  a  new  corporation  liable  at 
common  law  for  the  debts  of  an  established 
corporation  or  firm  to  whose  business  and 
property  it  has  succeeded,  it  must,  in  the  ab- 
sence of  a  special  agreement,  appear  that 
the  transaction  was  fraudulent  as  to  cred- 
itors of  the  old  corporation,  or  that  the  cir- 
cumstances attending  the  creation  ot  the 
new  corporation  and  its  succession  to  the 
business  and  property  of  the  old  corpora- 
tion are  of  .such  a  character  as  to  warrant  a 
finding  tliat  it  is  a  mere  continuation  of  the 
former.  Austin  v.  Tecumseh  Nat.  Bank,  49 
Neb.  412,  68  N.  W.  628,  35:  444 

64.  A  street  railway  corporation  which 
purchases  the  property  and  franchises  of  an- 
other under  statutory  authority,  when  no 
consolidation  is  intended  or  sought  to  be  ef- 
fected, is  not  charged  with  the  liabilities  of 
a  predecessor  in  the  franchise.  Capital 
Traction  Co.  v.  Offutt,  17  App.  D.  C.  292, 

53:  390 

65.  A  covenant  by  a  corporation  purchas- 
ing the  property  and  franchise  of  another, 
to  "assume,  discharge,  and  perform  all  the 
obligations''  of  the  prior  company,  'and  all 
its  liabilities  of  what  kind  soever,"  does  not 
make  the  purchaser  directly  responsible  to 
a  third  party  for  the  liability  of  the  older 
company.  Id. 

66.  The  insertion  in  a  deed  conveying  the 
assets  of  a  partnership  to  a  corporation  or- 
ganized to  continue  the  business  and  which 
has  agreed  to  pay  partnership  debts  to  a  cer- 
tain amount,  of  a  clausp  obligating  it  to  pay 
"all  the  liabilities"  of  the  partnership,  will 
not  operate  to  e.\tend  its  liability  beyond 
the  amount  specified,  luiless  the  insertion  of 
such  clause  was  authorized  or  ratified  by  the 
corporation.  Lamkin  v.  Baldwin  &  L.  ^Ifg. 
Co.  72  Conn.  57,  43  Atl.  593,  1042,      44:  786 

67.  To  entitle  a  creditor  of  a  partnership 
to  payment  out  of  assets  of  a  corporation 
which  was  organized  to  continue  the  part- 
nership business  and  received  a  conveyance 
of  the  partnership  assets  upon  undertaking 
to  pay  a  specified  amount  of  the  partncrsliij) 
liabilities,  which  proves  to  be  less  than  all, 
he  must  show  that  his  claim  was  anmnir 
those  estimated  in  fixing  the  amoiinf  so 
specified.  Id. 

68.  That  an  organization  never  became 
more  than  a  de  facia  corporation  will  not 
relieve  it  from  Jiabilit}^  for  the  debts  of  a 
partnersliip  whose  l)usiness  it  was  organized 
to  continue,  and  whose  assets  it  received  up- 
<<r\  unrlortaking  to  paj'  its  liabilities.         Id. 


III.  Charters;  Articles  of  Incorporation. 

Curing  Defects  in,  see  Constitutional  Law, 
125,  126. 

Impairment  of  Obligation  as  to,  see  Consti- 
tutional Law,  II.  g,  1,  a,   (2). 

Pleading  as  to,  see  Pleading,  95,  613. 

Charter  of  Stockyards  Company,  see  Stock- 
yards Company,  2. 

See  also  supra,  9,  10,  27;  infra,  90,  91,  98, 
101,  102,  257,  309,  310,  691,  692,  734,  834, 
852. 

For  Editorial  Notes,  see  infra,  VIII.  §§  7,  8. 

Construction  of. 

69.  The  charter  of  a  corporation  is  to  be 
strictly  construed;  nothing  is  to  be  taken  as 
ceded  but  what  is  given  in  unmistakable 
terms,  or  by  an  implication  equally  clear. 
Rockland  Water  Co.  v.  Camden  &  R.  Water 
Co.  80  Me.  544,  15  Atl.  785,  1:388 
Svracuse  Water  Co.  v.  Syracuse,  116  N. 
Y.  167,  22  N.  E.  381,                                   5:546 

70.  The  mere  fact  of  the  insertion,  in  cer- 
tain corporate  charters,  of  a  prohibition  to 
interfere  with  the  navigation  of  streams,  is 
no  ground  for  construing  a  cnarter  which 
does  not  contain  such  prohibition  as  author- 
izing such  interference  where  it  would  be 
advantageous  to  the  corporation.  Connecti- 
cut River  Lumber  Co.  v.  Olco'tt  Falls  Co.  65 
N.  H.  290,  21  Atl.  1090,  13:  826 

71.  The  charter  of  a  corporation,  giving  it 
the  right  to  raise  the  level  of  a  pond  owned 
by  the  state  as  public  property  held  in  trust 
for  public  uses,  and  use  the  water  as  it 
flows  from  it,  but  containing  no  necessary 
implication  of  a  grant  of  the  exclusive  use 
of  the  waters,  whether  construed  as  a  rev- 
ocable license  or  a  grant  of  vested  right, 
is  subject  to  the  paramount  power  of  the 
state  to  use  the  water  for  public  purposes 
for  which  it  was  held  in  trust.  Watuppa 
Reservoir  Co.  v.  Fall  River,  147  Mass.  548, 
18  N.  E.  465,  1:  466 
Amendment  or  repeal. 

Provision  for  Issuing  Family -Mileage  Tick- 
ets as   Amendment,   see  Carriers,   1079. 

Vested  Right  of  Amendment,  see  Constitu- 
tional Law,  139. 

Special  Legislation  as  to,  see  Statutes,  306. 

See  also  infra,  720,  816. 

72.  The  reserved  power  to  amend,  alter, 
or  repeal  the  charter  of  a  corporation  in- 
cludes the  power  to  change  the  terms  of  of- 
fice of  the  directors,  and  provide  for  a  repre- 
sentation in  the  board  of  directors  of  a  mi- 
noritv  of  the  stockholders.  Maynard  ex 
rel.  Diisenburv  v.  Looker,  111  Mich.  498,  69 
X.  W.  929,      '  56:  947 

73.  A  general  statute  permitting  the  al- 
teration or  repeal  of  any  charter  becomes  a 
part  of  a  charter  granted  while  it  is  in  force, 
so  that  the  right  to  repeal  the  latter  will 
not  be  afiected  by  the  repeal  of  the  general 
law.  Watson  Seminarv  v.  Pike  County  Ct. 
149  Mo.  57,  50  S.  W.  880,  45:  675 

74.  The  reservation  of  legislative  power  to 
amend  or  repeal  a  charter,  whether  con- 
tained in  the  charter  or  in  the  state  Con- 
stitution or  in  general  laws,  is  not  repug- 
nant to  the  grant,  but  is  a  constitutional 
limitation  of  the  powers  granted.     State  v. 


CORPORATIONS,  IV.  a. 


749 


Brown  &  S.   Mfg.   Co.   18  R.   T.   16,  25  Atl. 
246,  17:  856 

75.  A  statute  providing  for  weekly  pay- 
ment of  the  employees  of  all  corporations 
other  than  religious,  literary,  or  charitable, 
is  to  be  regarded  as  an  amendment  of  the 
acts  of  incorporation  of  all  such  corpora- 
tions, under  the  general  resei'vation  of  pow- 
er to  amend  or  repeal.  Id. 

76.  An  amendment  to  an  act  providing  for 
the  organization  of  a  certain  class  of  corpo- 
rations, which  attempts'  to  confer  on  them 
a  power  which  they  cannot  constitutionally 
exercise,  cannot  be  upheld  as  to  other  corpo- 
rations incidentally  mentioned  therein,  but 
not  alluded  to  in,  or  subjected  by  the  amend- 
ment to,  any  of  the  provisions  «f  the  origi- 
nal act.  Portage  Twp.  Bd.  of  HeS-lth  v.  Van 
Hoesen,  87  Mich.  53.3,  49  N.  W.  894,    14:  114 

77.  The  twenty  years'  limitation  on  the 
existence  of  a  corporation,  under  Mo.  Gen. 
Stat.  1815,  chap.  34,  §  1,  providing  that  every 
corporation  iiiay  liavo  succession  for  the  '"pe- 
riod limited  in  its  charter,  and,  when  no 
period,  is  limited,  for  twenty  years,"  even  if 
it  applies  to  any  purely  charitable  incorpo- 
rated association, — as  to  which  there  is 
doubt, — does  not  apply  to  one  whose  charter 
reserves  the  right  to  amend  or  repeal  it  "at 
any  time  hereafter,"  and  shows  a  determina- 
tion on  the  part  of  the  legislature  to  make 
it  perfect  and  complete  wii;hout  reference  to 
the  general  law.  State  ex  rel.  Clover  v.  La- 
dies of  the  Sacred  Heart,  99  Mo.  533,  12  S. 
W.  293,  6:  84 
Articles  of  incorporation. 

See  also  supra,  21,  28-32;   infra,   118,   377, 
542,  54(5,  587. 

78.  Incorporation  cannot  be  effected  by 
filing  the  original  articles  signed  by  the  in- 
corporators, but  riot  acknowledged,  where 
the  statute  requires  the  filing  of  a  copy  of 
the  original,  verified  as  a  true  copy  by  two 
of  the  signers.  Siocxim  v.  Head,  105  Wis. 
431,  81  N.  W.  673,  50:  324 

79.  Persons  who  in  good  faith  file  the  or- 
iginal articles  to  effect  incorporation,  instead 
of  an  authenticated  copy  as  required  by 
statute,  and  organize  as  such,  may  have  the 
rights  of  a  corporation  as  to  all  persons 
with  whom  their  dealings  are  mutually  un- 
derstood to  be  in  that  capacity.  Id. 

80.  The  articles  of  incorporation  under 
which  a  company  is  organized  under  general 
laws  have  the  effect  of  a  charter  for  the 
purpose  of  determining  the  powers  of  the 
corporation.  North  Point  Consol.  Irrigation 
Co.  V.  Utah  &  S.  L.  Canal  Co.  16  Utah.  240. 
52Pac.  168,  '40:  851 

81.  The  requirement  that  articles  of  in- 
corporation shall  state  "the  name  and  loca- 
tion of  such  cornoration"  does  not  authorize 
the  articles  to  1x  the  place  of  the  "principal 
office."  Milwaukee  Steamship  Co.  v.  Mil- 
waukee,  83  Wis.   590,   53  N.   W.    839. 

18:  .3,53 


IV.  Powers,  Liabilities,  and  Officers. 

a.  Rights  and  Powers  Generally. 

Recovery  Back  by  Corporation  of  Money 
Paid  on  Officer's  Debt,  see  Assumpsit, 
44. 


Power  to  Issue  Bonds,  see  Bonds,  III.  a. 

Power  of  Loan  Association,  see  Building  and 
Loan  Associations,  V. 

Right  to  Exercise  Power  of  Eminent  Do- 
main, see  Eminent  Domain,  I.  b. 

Estoppel  as  to  Corporate  Powers,  see  Estop- 
pel, III.  c. 

Right  to  Maintain  Nuisance,  see  Highways, 
50. 

Policy  bv  Foreign  Company,  see  Insurance, 
57.  ' 

Of  Religious  Corporation,  see  Religious  So- 
cieties, 19-21. 

Title  of  Statute  as  to,  see  Statutes,  187. 

Special  Legislation  as  to,  see  Statutes,  305. 

See  also  infra,  621. 

For  Editorial  Notes,  see  infra,  VIII.  §  10. 

82.  A  corporation,  being  a  creature  of  the 
law,  has  no  powers  which  the  law  has  not 
conferred  upon  it.  National  Home  B.  &  L. 
Asso.  V.  Home  Sav.  Bank.  181  111.  35.  54  N. 
E.  619,  64:  399 

83.  A  corporation  created  by  statute  pos- 
sesses no  rights  and  can  exercise  no  powers 
which  are  not  expressly  given  or  to  be  nec- 
essarily implied.  Stockton  v.  Central  R.  Co. 
(N.  J.  Ch.)  50  N.  J.  Eq.  52,  24  Atl.  964,  17:  97 

84.  When  a  corporation  is  formed  under 
the  Illinois  general  incorporation  act,  for 
the  purpose  of  carrying  on  a  lawful  busi- 
ness, the  law,  and  not  the  statemeht  or  li- 
cense or  certificate,  must  determine  what 
powers  can  be  exercised  as  incidents  of  such 
business.  People  ex  rel.  Peabody  v.  Chicago 
Gas   Trust   Co.    130   111.  268,   22  N.   E.   798. 

8:  497 

85.  The  report  of  a  legislative  committee, 
that  the  property  of  a  corporation  is  prop- 
erly tefxed,  does  not  amount  to  a  concession 
on  the  part  of  the  state  that  the  corporation 
had  a  right  to  acquire  the  title  to  the  prop- 
erty. People  ex  rel.  Moloney  v.  Pullman's 
Palace  Car  Co.  175  111.  125,  51  N.  E.  664, 

64:  366 

86.  A  grant  to  a  corporation  of  a  right 
to  own  property  and  transact  business  af- 
fords no  immimity  from  any  police  control 
to  which  a  citizen  could  be  subjected.  State, 
Trenton  Horse  R.  Co.  Prosecutor,  v.  Trenton, 
(N.  J.  Sup.)   53  N.  J.  L.  1,32,  20  Atl.  1076. 

11:  410 

87.  Where  one  corporation  seeks  judicial 
redress  against  another  corporation,  on  the 
ground  that  the  other  has  refused  to  give  a 
service  or  to  perform  a  duty  which  it  owes 
the  complaining  corporation,  to  succeed,  it 
must  show  affimiatively  that  the  service  or 
duty  which  it  claims  exists  by  force  of  a 
statute,  or  a  usage  having  the  force  of  law. 
Delaware.  L.  &  W.  R.  Cxi.  v.  Central  Stock 
Yards  &  T.  Co.  (N.  ,T.  Err.  &  App.)  45  N.  J. 
Eq.  ,50.  17  Atl.  146.  6:  855 

88.  l^nless  a  duty  has  been  created 
against  a  corporation  by  usage,  or  by  con- 
tract, or  by  a  statute,  the  courts  cannot 
be  called  on  to  give  it  effect.  Id. 

89.  Although  a  corporation  is  regarded  as 
a  person  separate  and  distinct  from  its 
stockholders,  or  any  of  them,  when  proceed- 
ing at  law  or  asserting  a  title  to  property, 
or  when  the  title  to  property  is  involved,  a 
court    of   equity   will   not,    when    rights    of 


Ito 


CORPORATIONS.  IV.  b. 


an  equitable  nature  are  asserted,  or  relief 
on  rules  or  principles  of  equity  is  sought, 
forget  that  the  stockholders  are  the  real 
and  substantial  beneficiaries  of  a  recovery; 
and  if  such  stockholders  have  no  standing 
in  equity,  and  are  not  equitably  entitled  to 
the  remedy  sought  to  be  enforced  by  the  cor- 
poration in  their  behalf  and  for  their  advan- 
tage, no  recovery  will  be  permitted  to  the 
corporation.  Home  F.  Ins.  Co.  v.  Barber,  67 
Neb.  644,  93  N.  W.  1024,  60:  927 

90.  The  fact  that  a  corporation  organized 
to  build  a  bridge  is  not  expressly  authorized 
by  its  charter  to  obtain  approaches  by  an 
exercise  of  the  power  of  eminent  domain 
does  not  bring  an  attempt  to  secure  such 
approacnes  in  a  foreign  state  within  the  op- 
eration of  a  constitutional  provision  of  such 
state  forbia^-ing  any  company  to  engage  m 
business  other  than  that  expressly  author- 
ized by  its  charter.  Southern  I.  &  M.  Bridge 
Co.  V.  Stone,  174  Mo.  1,  73  S.  W.  453, 

63:  301 

91.  Whiskies,  wines,  beers,  and  other  malt 
and  intoxicating  liquors  are  included  in  the 
"supplies"  which  the  charter  of  a  corpora- 
tion engaged  in  manufacturing  and  selling 
or  using  cars  authorizes  it  to  furnish  to 
travelers  on  them.  People  ex  rel.  Molonev 
V.  Pullman's  Palace  Car  Co.  175  111.  125.  s'l 
N.  E.  664,  64:  366 
Implied  powers. 

See  also  infra,  128,  358,  361. 

For  Editorial  Notes,  see  infra,  Vlll.  §  10. 

92.  Incidental  or  implied  powers  of  a  cor- 
poration exist  only  to  enable  it  to  carry  out 
the  express  powers  granted, — that  is,  to  ac- 
complish the  purpose  of  its  existence, — and 
can  in  no  case  avail  to  enlarge  the  'express 
powers  and  thereby  warrant  it  to  devote 
its  efforts  and  capital  to  other  purposes 
than  such  as  its  charter  expressly  author- 
izes, or  to  engage  in  collateral  enterprises 
not  directly,  but  only  remotely,  connected 
with  its  specific  corporate  purposes.  Peopie 
ex  rel.  Molonev  v.  Pullman's  Palace  Car  Co. 
175  111.  125,  51  N.  E.  664,  64:  366 

93.  The  implied  powers  which  a  corpora- 
tion has  in  order  to  carry  into  effect  those 
expressly  granted,  and  to  accomplish  the 
purposes  of  its  creation,  are  not  limited  to 
such  as  are  indispensable  for  these  purposes, 
but  comprise  all  that  are  necessary,  in 
the  sense  of  appropriate,  convenient,  and 
suitable,  including  the  right  of  reasonable 
choice  of  means  to  be  employed.  Central 
Ohio  N.  G.  &  F.  Co.  v.  Cnpital  Citv  Dalr\ 
Co.  60  Ohio  St.  96.  53  N.  E.  711.  64:  395 
To  refuse  to  make  discovery. 

94.  A  corporation  or  company  which  the 
state  has  the  legal  right  to  call  upon  for  in- 
formation as  to  its  business  cannot  be  per- 
mitted to  determine  for  itself  whether  it 
will  answer  or  not.  on  the  ground  that  it  is 
not  possible  to  do  so.  but  must  answer  can- 
didly so  far  as  reasonably  possible,  and 
state  facts  which  it  claims  should  excuse  it 
for  not  answering  more  fullv.  Stnte  ex  rel. 
Pnilroad  &  W.  Com.  v.  Inited  States  Exp. 
Co.  81  Minn.  87.  S3  >J.  W.  465.  oO:  667 
To  exercise  franchise  without  giving  bond. 

95.  A  bond  cannot  be  required  from  a  cor- 


poration as  a  condition  of  exercising  its 
franchise,  after  it  has  accepted  the  franchise 
and  entered  upon  its  business  under  an  or- 
dinance which  does  not  require  the  bond. 
Rushville  v.  Rushville  Natural  Gas  Co.  132 
Ind.  575,  28  N.  E.  853.  15:  321 

To  execute  ceed  for  another. 

96.  A  corporation  may  execute  a  deed  as 
an  attorney  in  fact  for  another.  Killings- 
worth  V.  Portland  Trust  Co.  18  Or.  351,  23 
Pac.  66,  7:  638 
To  borrow. 

For  Editorial  Notes,  see  infra,  VIIT.  §  10. 

97.  A  corporation  as  such  has  no  power  tc 
create  a  debt  by  borrowing  money  with 
which  to  purchase  its  own  stock, — especial- 
ly when  it  is  in  failing  circumstances. 
Adams  &  W.  Co.  v.  Deyette,  8  S.  D,  119,  65 
N.  W.  471,  31:  497 
To  act  as  administrator. 

98.  A  corporation  naving  charter  power  to 
accept  and  execute  all  -kinds  of  trusts,  in- 
cluding that  of  executors  and  guardianship 
of  infants  and  insane  persons,  is  not  pre- 
cluded from  acting  as  administrator  under 
appointment  by  the  court  by  virtue  of  the 
provision  that  it  may  execute  such  trusts 
as  may  be  imposed  upon  it  by  any  "person 
or  corporation."  Union  Bank  &  T.  Co.  v. 
Wright  (Tenn.  Oh.)  58  S.  W.  755,       52:  469 

99.  A  corporation  may  act  as  administra- 
tor, under  a  charter  giving  it  the  right  arid 
power  to  accept  and  execute  all  trusts  of 
every  name  and  kind  and  to  act  as  executor, 
although  the  term  "administrator"  is  not 
included  among  those  specifically  designated 
therein,  since  that  term  is  included  in  the 
broad  power  as  to  trusts,  and  the  term  "ex- 
ecutor" also  fairly  includes  it.  Id. 
To  pass  by-law. 

100.  Ihe  power  to  make  reasonable  by- 
laws consistent  with  its  charter  inheres  in 
every  corporation.  En^elhardt  v.  Fifth 
Ward  Permanent  Dime  S.  &  L.  Asso.  148  X. 
Y.  281,  42  N.   E.  710,  35:  289 

b.  Owning  Stock  of  Other  Companies. 

Creation  of  Monopoly  by,  see  Conspiracy, 
168. 

Self-Executing  Provisions  as  to,  see  Con- 
stitutional Law,  88. 

Validity  of  Contract  as  to,  see  Contracts, 
409. 

Allegations  as  to,  see  Pleading,  525. 

See  also  supra,  20;   Banks,  3. 

For  Editorial  Notes,  see  infra,  VIII.  §  21. 

101.  Permission  to  purchase  the  "capital 
stock"  of  other  corporations,  found  in  a  cor- 
porate charter,  will,  if  properly  conferred, 
enable  its  recipient  to  purchase  shares  of 
such  stock,  although  there  exists,  under  cer- 
tain circumstances,  a  distinction  between 
"capital  stock"  and  "shares  of  stock."    Peo- 

i  pie  ex  rel.  Peabodv  v.  Chicago  Gas  Trust  Co. 
130  Til.  268.   22  N.  E.   798.  8:  407 

102.  Charter  power  to  purchase  property 
noce«snry  for  its  business,  with  stock,  will 
include  the  purchase  by  a  cotton  manufac- 
turine  company  of  shares  in  a  corporation 
organized  to  manufacture  dyes  according  to 
secret     formulas     which,     under     contracts 


CORPORATIONS,  IV.  c. 


751 


with  their  originator,  were  used  exclusive- 
ly by  the  corporation,  and  upon  the  use  of 
which  the  success  of  its  products  largely 
depended.  Joseph  Bancroft  &  Sons  Ck).  v. 
Bloede,  45  C.  C.  A.  354,  106  Fed.  396, 

52:  734 

103.  A  corporation  cannot  become  a  stock- 
holder in  another  corporation  unless  power 
to  do  so  is  specifically  granted  in  its  charter, 
or  necessarily  implied  from  it.  People  ex 
rel.  Moloney  v.  Pullman's  Palace  Car  Co. 
175  111.  125,  51  N.  h.  664,  64:  366 

104.  Power  to  authorize  the  purchase  by  a 
corporation  of  shares  of  stock  in  another 
corporation  is 'denied  to  the  general  assem- 
bly by  Ga.  Const,  an.  4,  §  2,  f  4  (Civ.  Code, 
§  5800),  only  when  such  purchases  tend  to 
create  a-  monopoly  or  lessen  •competition. 
Trust  Company  of  Georgia  v.  State,  109  Ga. 
736,  35  S.  E.  323,  48:  520 

105.  A  purchase  of  shares  of  a  domestic 
corporation  by  a  foreign  corporation  en- 
gajred  in  a  similar  bxisiness,  for  the  express 
purpose  of  controlling  and  managing  the  do- 
mestic corporation,  is  itltra  vires,  and  there- 
fore unlawful  and  void.  Buckeye  Marble  & 
P.  Co.  V.  Harvev,  92  Tenn.  115,  20  S.  W.  427, 

18:252 

106.  An  incorporated  company  cannot.  \\n- 
les3  authorized  by  statute,  subscribe  to  the 
capital  stock  of  another.  A  subscription  so 
made  is  vltra  vires  and  void.  Vallev  R.  Co. 
V.  Lake  Erie  Iron  Co.  46  Ohio  St.  44,  18  IS. 
E.  486,  ^  1:  412 

107.  A  corporation  formed,  under  the  Illi- 
nois general  incorporation  act,  for  a  purpose 
other  than  that  of  dealing  in  stocks,  cannot 
exercise  the  power  of  purchasing  and  hold- 
ing stock  in  other  corporations,  where  such 
power  canrot  be  necessarih'  inmlied  from  tlip 
nature  of  the  power  specifically  granted,  and 
is  not  necessary  to  carry  the  latter  into  ef- 
fect. People  ex  rel.  Peabody  v.  Chicago  Gas 
Trust  Co.  130  111.  268,  22  N.  E.  798,     8:  497 

108.  A  gas  company  formed  for  the  pur- 
pose of  erecting  or  operating  gas  works  and 
manufacturing  and  selling  gas  has  no  power 
to  purchase  and  hold  or  sell  shares  of  stock 
in  other  gas  companies  as  an  incident  to 
such  purpose  of  its  formation,  even  though 
such  power  is  specified  in  its  articles  of  in- 
corporation. Id. 

109.  A  railroad  company  in  Kansas  has 
the  lawful  right  to  purchase  and  hold  stock 
of  a  connecting  road.  Atchison,  T.  &  S.  F. 
R.  Co.  V.  Cochran,  43  Kan.  225.  23  Pac.  151. 

7:  414 

110.  The  right  of  a  corporation  to  hold 
stock  in  another  corporation  if  a  majority  of 
the  stockholders  elect,  which  is  given  by 
Minn.  Gen.  Stat.  1894.  §  5834.  does  not  pre- 
vent a  corporation  organized  under  that 
statute  from  beino:  one  which  carries  on  an 
exclusively  manufacturing  or  mechanical 
business,  if  the  corporation  has  not  made 
any  election  to  hold  stock  in  another  com- 
panv.  Cowling  v.  Zenith  Iron  Co.  65  Minn. 
263."  68  X.  W.  48,  33 :  508 
Controlling  interest  or  entire  ownership. 
See  ilso  infra.  143.   144. 

111.  A  corporation  purchasing  a  majority 
of  the  stock  of  another  competin£r  one  can- 


not obtain  control  of  its  aflfairs,  divert  the 
income  of  its  business,  refuse  business  which 
wi;uld  enable  the  defaulting  company  to  pay 
its  interest,  and  then  institute  an  action  in 
equity  to  enforce  its  obligations  for  the 
avowed  purpose  of  obtaining  entire  control 
of  its  property  to  the  injury  of  the  minor- 
ity stockholders.  Farmers'  Loan  &  T.  Co.  v. 
New  York  &  N.  R.  Co.  150  N.  Y.  410,  44  N. 
E.  1043,  34:  76 

112.  A  corporation  owning  a  majority  of 
the  stock  of  another  company,  and  assuming 
control  of  its  business  through  the  control 
of  its  officers  and  directors,  assumes  the 
same  trust  relation  toward  the  minority 
stockholders  that  a  corporation  itself  usual- 
ly bears  to  stockholders.  Id. 

113.  The  statutory  right  of  a  corporation 
to  purchase  stock  of  another  company  does 
not  give  it  any  right,  as  the  owner  of  a 
majority  of  the  stock  and  bonds  of  such 
companj',  to  manage  its  affairs  so  as  to 
cause  a  default  on  a  mortgage  and  obtain 
control  of  the  property  by  foreclosure  at 
less  than  its  value  to  the  injury  of  the 
minority  stockholders.  Id. 

114.  The  fact  that  one  corporation  owns 
the  entire  capital  stock  of  another  does  not 
vest  in  the  former  the  legal  title  to  the 
property  of  the  latter,  or  render  the  two 
corporations  identical.  McTighe  v.  Macon 
Const.  Co.  97  Ga.  1,  25  S.  E.  326,       33:  800 

115.  Under  a  provision  of  the  Constitution 
of  the  state  of  Georgia,  reciting  that  "the 
general  assembly  of  this  state  shall  have  no 
power  to  authorize  any  corporation  to  buy 
shares  of  stock  in  any  other  corporation  in 
this  state  or  elsewhere,  or  to  make  anj- 
contract  or  agreement  whatever  with  any 
such  corporation,  which  may  have  the  effect, 
or  be  intended  to  have  the  effect,  to  defeat 
or  lessen  competition  in  their  respective 
businesses,  or  to  encourage  monopoly;  and 
all  such  agreements  and  contracts  shall  be 
illegal  and  void," — a  purchase,  by  a  railway 
company  in  Georgia,  ox  the  contract  to  con- 
struct the  line  of  a  competitive  company, 
and  of  the  securities  of  such  competitive 
company,  with  a  view  to  prevent  the  con- 
struction of  such  competing  line,  is  illegal 
and  void,  although  accomplished  indirectly 
and  constitutes  all  concerned  in  such  illegal 
transaction  trustees,  as  to  assets  resulting 
therefrom,  for  the  benefit  of  persons  whose 
rights  have  been  invaded.  Langdon  v.  Cen- 
tral R.  &  Bkg.  Co.  37  Fed.  449,  2:  120 

c.  Mode     of    Corporate     Action;     Acts     of 
Agents. 

As  to  Power  of  Officers  Generally,  see  infra, 

IV.  g,  2. 
Majority   of   Trustees  Acting  Individually, 

see  Boards,  2. 
Parol  Evidence  of  Adoption  of  Resolution, 

see  Evidence,  767. 
«ee  also  infra.  466-470,  480. 
For  Editorial  Notes,  see  infra,  VIII.  §§  13, 

15,  16. 

116.  The  illegality  of  an  act  attempted  to 
be  done  by  a  corporation  will  not  deprive  it 


r52 


CORPORATIONS.  IV.  d,  1. 


of  its  corporate  character.  People  v.  North 
River  Sugar  Refin.  Co.  121  N.  Y.  582,  24  N. 
E.  834,  9:  33 

Affg  54  Hun,  354,  7  N.  Y.  Supp.  406,  5:  386 
Aff'g  54  Hun,  355  (note),  3  N.  Y.  Supp.  401, 

2:  33 

117.  A  contract  entered  into  by  a  wrong 
name  may  be  binding  on  a  corporation,  when 
it  appears  that  it  intended  to  be  bound. 
North  Point  Consol.  Irrig.  Co.  v.  Utah  &  S. 
L.  Canal  Co.  16  Utah,  246,  52  Pac.  168, 

40:  851 

118.  A  corporation  may  become  liable  on 
a  contract  made  in  its  name  and  on  its  be- 
half after  its  articles  of  association  are  re- 
corded under  Wis.  Rev.  Stat.  §  1772,  pro- 
viding that  it  shall  have  no  legal  existence 

"until  such  articles  be  so  left  for  record." 
Hadger  Paper  Co.  v.  Rose,  95  Wis.  145,  70 
X.  W.  302,  37:  162 

119.  The  act  of  all  or  a  majority  of  the 
stockholders  of  a  corporation  should  be  re- 
garded as  the  act  of  the  corporation,  when 
it  is  designed  to  affect  its  property  and  busi- 
ness, and  is  ultra  vires  of  the  corporation 
and  against  public  policy,  and  is  done  in 
their  individual  capacity  for  the  purpose  of 
concealing  their  real  purpose  and  object. 
State  ex  rel.  Watson  v.  Standard  Oil  Co. 
49  Ohio   St.   137,  30  N.  E.  279,  15:  145 

120.  An  attempted  transfer  of  the  stock 
of  a  corporation  to  a  trust  combination,  in 
consequence  of  which  the  stock  will  be  large- 
ly increased,  is  a  corporate  act,  although 
done  by  the  united  action  of  trustees  and 
stockholders  without  any  independent  ac- 
tion of  the  board  of  directors  as  such.  Peo- 
ple V.  North  River  Sugar  Refin.  Co.  121  N. 
Y.  582,  24  N.  E.  834.  9:  33 
.\frg  54  Hun,  354,  7  N.  Y.  Supp.  406,  5:  386, 
Affg  54  Hun.  355  (note),  3  N.  Y.  Supp.  401, 

2:  33 

121.  A  deed  made  by  a  committee  of  a 
corporation  and  signed  by  the  corporation 
secretary,  under  the  authority  of  a  resolu- 
tion adopted  at  a  stockholders'  meeting  by  a 
unanimous  vote  of  the  trustees  and  Stock- 
holders, will  be  regarded  as  an  act  of  the 
corporation.  Id. 

122.  The  fact  that  a  contract  company 
dominates  and  controls  a  railroad  company 
having  the  same  stockholders  will  not  make 
its  engagements  operate  in  legal  effect  as 
those  of  the  railroad  company  with  respect 
to  one  who  is  fully  aware  of  the  relations 
of  the  companies  when  making  a  contract 
with  the  former  for  work  on  the  railroad. 
Richmond  &  I.  Const.  Co.  v.  Richmond,  N.  I. 
&  B.  R.  Co.  31  U.  S.  App.  704.  68  Fed.  105, 
15  C.  C.  A.  289.  34:  625 

123.  To  bind  a  corporation  by  a  contract 
made  by  one  who  has  authority  to  act  for 
it,  it  is  not  necessary  that  his  authority 
should  be  recited  in  the  contract,  or  the 
corporate  name  be  signed  to  it,  or  his  offi- 
cial designation  be  added  to  his  signature. 
Jones  v.  Williams.  139  Mo.  1.  39  S.  W.  486. 
40  S.  W.  353,  37 :  682 
Other  corporation  as  agent. 

124.  Tlip  apnointment  by  a  corporation  by 
its  board  of  directors  of  another  corporation 
to  act  as  its  sole  agent  in  the  sale  of  water 
within  a  city,  to  be  distributed  by  means  of 


plants  of  both  corporations,  is  not  in  vio- 
'  lation  of  Cal.  Civ.  Code,  §  354,  subds.  5,  8, 
where  the  agency,  although  exclusive,  is  not 
unlimited  or  unrestricted.  San  Diego  Wa- 
ter Co.  v.  San  Diego  Flume  Co.  108  Cal.  549, 
45  Pac.  495,  29:  839 

d.  Contracts;   Ultra  Vires. 

1.  Power   to    Contract. 

As  to  Owning  Stock  of  Other  Company,  see 

supra,  IV.  b. 
Power  of  Officers  or  Agents   to   Make,  see 

infra,  IV.  g,  2. 
Power  of  Stockholders  to  Make,  see  infra, 

V.  e,  1. 
Liability  of  Officers  for  Engaging  in  Ultra 

Vires  Business,  see  infra,  286-288. 
Contract  Giving  Corporation  Prior  Right  to 

Purchase  Stock,  see  infra,  432-435. 
Law   Governing  Real   Estate   Mortgage  by 

Foreign    Corporation,    see    Conflict    ot 

Laws,  50. 
Construction  of  Contract  by,  see  Contracts, 

333. 
Right  of,  to  Recover  where  Contract  is  not 

Completed,  see  Contracts,  689. 
Relief    in    Equitj'    Notwithstanding    Ultra 

Vires,  see  Equity,  98. 
Validating  Ultra  Vires  Act  by  Estoppel,  see 

Estoppel,   101. 
Presumption  of  Validity  of,  see  Evidence, 

409. 
Ultra  Vires  Contract  by  Insurance  Company, 

see  Insurance,  17,  18. 
Presumption  as  to  Validity  of  Contract,  see 

Pleading,  432. 
Contract  by  Municipal  Corporation,  see  Mu- 
nicipal Corporations,  II.  d. 
Corporation  as  Party  to  Suit  to  Annul  Ultra 

Vires  Act,  see  Parties,  154. 
Sufficiency   of   Complaint   on   Mortgage   by 

Corporation,  see  Pleading,  222. 
Power  to   Establish  Railway   Relief  Asso- 
ciation,  see    Railroad    Relief    Associa- 
tions, 3. 
Question  for  Jury  as  to,  see  Trial,  215. 
See  also  supra,  19;  infra,  206,  286,  352,  477, 

640,  711,  750. 
For  Editorial  Notes,  see  infra,  VIII.  §§  10- 

12,  14-16. 

■125.  The  power  to  contract  inheres  in 
every  corporation,  and  is  coextensive  with 
its  corporate  powers.  Portland  Lumbering 
&  Mfg.  Co.  V.  East  Portland,  18  Or.  21,  22 
Pac.  536,  6:  290 

126.  The  validity  of  a  transaction  by  a 
corporation  is  to  be  determined  from  its  gen- 
eral character  considered  as  a  whole,  rath- 
er than  by  segregating  it  into  individual 
parts,  and  regarding  each  as  distinct  from 
the  others.  Central  Ohio  N.  G.  &  F.  Co.  v. 
Capital  Citv  Dairy  Co.  60  Ohio  St.  96,  53 
N.  E.  711,  ■  ■  64:  395 

127.  Acts  of  a  corporation,  which,  if  stand- 
j  ing  alone,  or  engaged  in  as  a  business,  would 
}  be  beyond  its  implied  powers,  are  not  neces- 
j  sarily  wZ^ro  vires  when  they  are  incidental 
I  to,  or  form  part  of,  an  entire  transaction 
I  that,  in  its  general  scope,  is  within  the  cor- 

]K>rate  purpose.  .  Id. 


CORPORA.TIONS,  IV.  d,  1, 


753 


128.  A  corporation  has  no  implied  author- 
ity to  engage  in  any  business  other  than  the 
particular  enterprise  for  which  it  is  char- 
tered, or  to  do  any  act  or  make  any  con- 
tracts not  in  pursuance  of  the  purposes  for 
which  it  was  created.  Chewacla  Lime 
Works  V,  Dismukes,  87  Ala.  344,  6  So.  122, 

5:  lUO 

129.  Notice  of  restrictions  annexed  to  the 
grant  of  power  by  a  law  authorizing  action 
by  a  corporation  is  chargeable  upon  persons 
dealing  with  the  corporation.  Smith  v.  Cor- 
nelius, 41  W.  Va.  59,  23  S.  E.  599,        30:  747 

130.  A  corporation  does  not  possess  pow- 
er to  acquire  by  assignment  a  claim  for  dam- 
ages growing  out  of  an  alleged  conspiracy 
to  defraud  which  is  in  no  way  connected 
with  its  own  affairs.  John  V.  Farvvell  Co. 
V.  Josephjion,  96  Wis.  10,  70  N.'JV.  289,  71 
N.  W.  109,  37:  138 

131.  A  corporation  dealing  in  manufac- 
tured goods  and  needing  them  for  sale  may, 
as  a  proper  incident  to  its  business,  extend 
financial  aid  to  a  manufacturer  by  advancing 
him  money  to  enable  him  to  furnish  the 
goods.  Holmes,  B,  &  H.  v.  Willard,  125  N. 
Y.  75,  25  K  E.  1083,  11:  170 
Authority  given  to  officer. 

132.  Motice  of  the  by-laws  of  a  corpora- 
tion restricting  the  right  of  any  oflBcer  to 
make  contracts  of  employment  to  a  period 
less  than  one  year  is  not  chargeable  to  one 
who  makes  a  contract  for  services  to  the 
corporation  with  a  general  manager  of  the 
company,  who  has  been  given  absolute 
charge  of  its  business  at  the  place  of  con- 
tract. Moyer  V.  East  Shore  Terminal  Co. 
41  S.  C.  300,  19  S.  E.  651,  25:  48 

133.  A  resolution  authorizing  officers  of  a 
corporation  "to  secure  any  and  all  other 
creditors"  after  a  person  named  does  not 
require  that  a  mortgage  executed  in  pur- 
suance thereof  should  secure  all  other  cred- 
itors, but  tlie  word  "and"  has  the  meaning 
of  "or."  Brown  v.  Grand  Rapids  Parlor  Fur- 
niture Co.  16  U.  S.  App.  221,  7  C.  C.  A.  225, 
58  Fed.  286,  22:  817 
Deposit  of  securities  in  other  state. 

134.  A  deposit  of  securities  by  a  foreign 
corporation  as  required  by  law  in  order  to 
obtain  the  right  to  do  business  in  the  state 
is  not  ultra  vires.  Lewis  v.  American  Sav. 
&  L.  Asso.  98  Wis.  203,  73  N.  W.  793, 

39:  559 
As  to  negotiable  paper. 
Effect  of  Corporate  Seal  on  Negotiability, 

see  Bills  and  Notes,  58. 
See  also  infra,  302. 
For  Editorial  Notes,  see  infra,  VIII.  §  10. 

135.  Business  corporations  for  banking, 
manufacturing,  etc.,  have  no  power,  unless 
expressly  conferred,  to  indorse  promissory 
notes  for  the  accommodation  of  the  makers 
for  a  consideration  paid.  National  Park 
Bank  v.  German  Am.  Mut.  Warehousing  & 
S.  Co.  116  N.  Y.  281,  22  N.  E.  5G7,  5:  673 
Co-operation  with  other  company. 
Validity  of  Contract  as  to,  see  Contracts, 

478. 

136.  A  contract  between  corporations  or- 
ganized to  distribute  and  furnish  water  to 
consumers  in  a  county  and  citv.  for  co-op- 

L.R.A.  Dig.— 48. 


oration  in  supplying  water  to  the  city,  is 
not  ultra  vires  because  one  officer  of  each 
corporation  is  appointed  a  trustee,  and  they 
together  are  given  general  charge  of  the  op- 
eration of  the  works  and  of  keeping  the  ac- 
counts of  receipts  and  expenses,  with  a  lim- 
ited power  ot  determining  what  shall  be 
charged  to  the  account  of  operating  expens- 
es, and  with  other  powers  and  duties  simply 
executory  and  such  as  could  not  be  dis- 
charged by  any  board  of  directors  otherwise 
than  through  an  agent.  San  Diego  Water 
Co.  v.  San  Diego  Flume  Co.  108  Cal.  549,  45 
Pae.  495,  '  29:  839 

Execution  of  appeal  bond  as  surety. 

137.  The  execution  by  a  corporation  of  an 
appeal  bond  as  surety  for  another  party,  if 
outside  the  scope  of  its  business,  is  ultra 
vires  and  void.  Best  Brewing  Co.  v.  Klas- 
sen,  185  111.  37,  57  IS.  E.  20,  50:  765 

138.  A  brewing  company  becoming  surety 
on  an  appeal  bond  for  the  benefit  of  one  of 
its  customers,  in  an  action  against  him  for 
the  premises  occupied  by  him,  although  it 
may  obtain  some  incidental  advantage  to  its 
business  by  such  appeal,  is  not.  acting  in  the 
exercise  of  its  express  or  implied  powers, 
and  is  therefore  not  bound  by  such  action. 

Id. 
Purchases  generally. 

139.  A  contract  for  the  purchase  of  real 
estate  oy  a  religious  corporation  as  a  matter 
of  speculation  merely  is  tiltra  vires  and  void. 
Thompson  v.  West,  59  Neb.  677,  82  N.  W. 
13,  49:  337 

140.  A  corporation  which,  by  the  act  in- 
corporating it,  is  for  the  object  of  mining 
and  manufacturing  lime  rock  and  selling  it, 
and  which   may  purchase   lands   and  goods 

j  necessary  to  its  purpose,  has  no  right  to 
j  carry  on  a  mercantile  business  and  purchase 
!  goods   to  be  resold;    and   a  person   selling 

goods  for  that  purpose  does  so  at  his  peril. 

Chewacla  Lime  Works  v.  Dismukes,  87  Ala. 

344,  6  So.  122,  5:  100 

141.  Where  a  corporation  formed  for  the 
purpose  of  manufacturing  and  dealing  in  a 
particular  line  of  goods,  instead  of  incurring 
the  delay  and  expense  incident  to  the  con- 
struction of  a  new  manufacturing  plant  and 
building  up  of  an  independent  business,  in 
good  faith,  with  a  view  of  promoting  the  in- 
terests of  the  coi-poration,  chooses  to  pur- 
chase of  an  existing  partnership  engaged  in 
a  like  business  its  established  plant  and  as- 
sets, including  its  outstanding  claims,  among 
which  is  one  for  damages  to  the  property 
caused  by  another's  negligence,  the  corpora- 
tion acquires  a  valid  title  to  the  claim  for 
damages,  as  against  the  party  liable,  and 
may  maintain  an  action  thereon.  Central 
Ohio  N.  G.  &  F.  Co.  v.  Capital  City  Dairy 
Co.  60  Ohio  St.  96,  53  N.  E.  711,  64:  395 
Buying  off  competition  or  business  of  rival. 

142.  A  contract  by  a  corporation  to  buy 
off  *he  competition  of  a  rival  company  can- 
not be  assaulted  by  a  stockholder  as  ultra 
mres,  but  is  within  the  discretionary  power 
of  the  directors.  Leslie  v.  Lorillard,  110  N. 
Y.  519,  18  N.  E.  363,  1:456 

143.  A  corporation  empowered  to  engage 
in    and   earrv   on   a   certain  manufacturing 


754 


CORPORATIONS,  IV.  d,  2. 


business  may  buy  the  business  of  its  com- 
petitors, and  courts  cannot  pronounce  con- 
tracts for  such  permitted  purchases  invalid, 
although  they  tend  to,  and  may  temporarilyy 
produce  a  monopoly  of  such  manufacture; 
and  covenants  incidental  to  such  permitted 
purchases,  and  reasonably  required  to  pro- 
tect the  purchaser  against  the  seller's  engag- 
ing in  competitive  business,  cannot  be  pro- 
nounced against  public  policy.  Trenton  Pot- 
teries Co.  V.  Oliphant  (N.  J.  Err.  &  App.)  58 
N.  J.  Eq.  507,  43  Atl.  723,  46:  255 

144.  Option  contracts  providing  for  the 
sale  of  plants  organized  for  the  manufacture 
of  glucose  to  a  corporation  organized  to  do 
a  banking  business  and  having  no  authority 
to  purchase  such  plants,  are  void.  Haraing 
V.  American  Glucose  Co.  182  111.  551,  55  N.  E. 
577,  64:  738 
Repurchase  of  own  stock. 

For  Editorial  Notes,  see  infra,  VIII.  §  21. 

145.  A  corporation  has  power  to  make 
valid  contracts  for  the  repurchase  of  its  own 
stock  in  the  absence  of  charter' restrictions. 
Wisconsin  Lumber  Co.  v.  Greene  &  W. 
Teleph.  Co.  127  Iowa,  350,  101  N.  W.  742, 

69:  968 

146.  A  corporation  cannot  accept  stock 
sul'scriptions  secured  by  its  officers,  and  re- 
pudiate the  promise  to  take  back  the  stock 
under  certain  circumstances.  Id. 
Issue  of  stock. 

147.  The  issue  of  stock  by  a  cemetery  cor- 
poration is  ultra  vires  when  it  is  issued 
without  any  specific  legislative  authority. 
Cooke  v.  Marshall,  191  Pa.  315,  43  Atl.  314, 
196  Pa.  200,  46  Atl.  447,  64:  413 
Sales  generally. 

See  also  infra,  466,  467,  762,  763,  836. 

For  Editorial  Notes,  see  infra,  VIII.  §§  10 J 1. 

148.  A  sale  of  surpius  steam  by  a  corpora- 
tion is  not  in  excess  of  its  powers  when  the 
steam  is  generated  in  the  course  of  its  busi- 
ness by  boilers  larger  than  are  needed  for  its 
present  uses,  but  which  are  bought  in  antic- 
ipation of  probable  future  necessities.  Peo- 
ple e.x  rel.  Molonev  v.  Pullman's  Palace  Car 
Co.   175   111.   125,  51  N.  E.'664,  64:366 

140.  Where  one  corporation  sells  property 
to  another  for  a  fixed  price,  to  be  paid  in 
stock  of  the  latter,  to  be  delivered  to  the 
former  through  its  designated  oflScer,  de- 
livery of  the  certificates  of  stock  to  such 
officer,  or  to  another  by  his  order,  operates 
as  a  discharge  for  the  price.  Leathers  v. 
Janney,  41  La.  Ann.  1120,  6  So.  884,  6:  661 

150.  If  a  sale  of  corporate  property  be 
real  and  fair,  for  a  sound  price,  duly  paid 
according  to  the  terms  of  the  contract,  and 
without  the  shadow  of  fraud  on  the  part 
of  the  purchaser,  the  latter  is  not  bound  for 
any  failure  of  duty  of  the  officers  in  distrib- 
uting the  proceeds  among  the  stockholders. 

Id. 
Transfer  of  entire  property. 
Relief  aeainst  Illegal  Contract  for,  see  Con- 

tracts,  760. 
See  also  supra.  62:  infra,  224,  480,  688. 

151.  A  corporation  unable  to  go  on  may 
dispose  of  its  property  by  a  majority  vote. 
in  the  al^spn-^e  of  unfairness,  oppression,  or 
fraud.  Phillips  v.  Providence  Steam  Engine 
Co.    21    R.    I.    302,    43    Atl.    598,  45:  560 


152.  \Vhen  a  corporation  sells  its  whole 
property  and  rights  to  a  purchaser  knowing 
that  the}-  are  charged  with  corporate  debts, 
equity,  in  a  proper  case,  will  subject  the 
property  in  his  hands  to  the  payment  of  the 
debts.  Leathers  v.  Janney,  41  La.  Ann. 
1120,  6  So.  884,  6:  661 

153.  A  transfer  by  a  corporation  of  its  en- 
tire assets  and  property  of  every  descrip- 
tion, to  another  company,  in  consideration 
of  shares  of  stock  in  the  latter  not  made 
with  the  intention  of  winding  up  its  affairs 
and  dividing  the  stock  among  its  own  stock- 
holders, or  as  a  temporary  arrangement,  but 
as  a  permanent  investment,  is  ultra  vires, 
and  may  be  set  aside  in  an  action  by  a  non- 
assenting  stockholder.  Byrne  v.  fcjchuyler 
Electric  Mfg.  Co.  65  Conn.  336,  31  Atl.  833, 

28:  304 

154.  A  sale  of  the  entire  manufacturing 
plant,  including  patents,  processes,  and 
good  will,  of  a  corporation,  with  an  agree- 
ment that  it  would  never  again  engage  in 
the  same  business,  made  in  consideration  of 
stock  in  a  new  corporation,  without  intend- 
ing to  wind  up  the  affairs  of  the  former, 
but  with  the  object  of  continuing  its  cor- 
porate life  and  activity,  to  be  exercised 
through  the  other  corporation,  is  ultra  vires 
and  void.  McCutcheon  v.  Merz  Capsule  Co. 
37  U.  S.  App.  586,  71  Fed.  787,  19  C.  C.  A. 
108,  31:415 

155.  There  is  no  statutory  prohibition 
against  a  corporation  selling  any  or  all  of 
its  property,  provided  the  charter  contains 
na  such  prohibition,  and  it  acts  in  accord- 
ance with  the  duly  expressed  will  of  its 
stockholders  and  directors.  Leathers  v.  Jan- 
ney, 41  La.  Ann.  1120,  6  So.  884,  6:  661 
Mortgage  of  future-acquired  property. 

For  Editorial  Notes,  see  infra,  VIII.  §§  10, 
11. 

156.  A  corporation  de  facto  can  make  any 
contracts,  including  mortgages  of  future-ac- 
quired property,  which  the  law  authorizes 
corporations  to  make.  McTighe  v.  Macon 
Const.  Co.  94  Ga.  306,  21  S.  E.  701,  32:  208 
Contract  to  repay  loan. 

157.  A  contract  by  a  corporation  to  repay 
a  loan  in  preferred  stock  which  it  had  no  au- 
thority to  issue  is  a  nullity,  and  is  not  re- 
newed by  a  subsequent  act  authorizing  it  to 
issue  preferred  stock,  but  which  does  not 
empower  it  to  renew  that  contract.  An- 
thony V.  Household  Sewing-Mach.  Co.  16  R. 

1.  571,  18  Atl.  176,  5:575 

158.  A  corporation  whose  directors  are  au- 
thorized to  borrow  money  for  a  legitimate 
purpose  cannot  refuse  to  repay  borrowed 
money,  on  the  ground  that  it  was  applied  to 
an  unauthorized  purpose,  unless  it  shows 
that  the  lender  knew  that  the  purpose  for 
which  the  money  was  borrowed  was  unau- 
thorized. North  Hudson  Mut.  Bldg.  &  L. 
Asso.  V.  First  Nat.  Bank.  79  Wis.  31,  47  N. 
W.  300,  11:  845 

2.  Right  to  Set  up  Ultra  Vires  as  Defense. 

See  also  infra,  206. 

For  Editorial  Notes,  see  infra,  VIII.  §  10. 

159.  The  plea  of  ultra  inres  will  not  be  al- 


CORPORATIONS,  IV.  d,  2. 


755 


lowed  to  prevail  when  it  will  not  advance 
justice,  but  will,  on  the  contrary,  accomplish 
a  legal  wrong.  Lewis  v.  American  Sav.  & 
L.  Asso.  98  Wis.  203,  73  N.  W.  793,      39:  559 

160.  The  profitableness  or  unprofitableness 
of  a  transaction  by  a  corporation,  which  is 
ultra  vires,  does  not  affect  the  right  of  a 
stockholder  to  contest  it.  Byrne  v.  Schuy- 
ler Electric  Mfg.  Co.  65  Conn.  336,  31  Atl. 
833,  28:  304 

161.  A  stranger  to  contracts  made  with 
stockholders  of  a  company  which  has  not 
completed  its  organization  as  a  corporation, 
but  who  assumed  to  act  as  a  corporation, 
cannot  object  to  the  validity  of  the  con- 
tracts because  the  corporation  is  not  organ- 
ized. New  Haven  Wire  Co.  Cases,  57  Conn. 
352,  18  Atl.  266,  'i  5:  300 

162.  The  state  alone  can  complain  of  a 
completed  contract  entered  into  by  a  corpo- 
ration in  violation  of  constitutional  or  stat- 
utory requirements.  Wood  v.  Corry  Water 
Works  Co.  44  Fed.  146,  12:  168 
Right  of  corporation. 

As  against  Bona  Fide  Purchaser  of  Note,  see 

Bills  and  Notes,  202,  203. 
For  Editorial  Notes,   see  infra,   VIII.  §   10. 

163.  A  corporation  is  not  estopped,  by  rea- 
son of  having  received  the  benefits  of  a  con- 
tract which  is  ultra  vires,  from  setting  up  its 
invalidity  in  defense  of  a  suit  brought  to 
enforce  it.  Chewacla  Lime  Works  v.  Dis- 
mukes,  87  Ala.  344,  6  So.  122,  5:  100 

164.  A  contract  of  a  corporation  which 
is  beyond  its  corporate  powers  and  ultra 
vires  in  the  strict  and  legitimate  sense,  and 
against  public  policy,  cannot  be  made  bind- 
ing on  the  corporation  by  way  of  estoppel. 
National  Home  B.  &  L.  Asso.  v.  Home  Sav. 
Bank,  181  111.  35,  54  N.  E.  619,  64:  399 

165.  A  contract  of  a  corporation  in  excels 
of  its  powers  cannot  be  enforced  because  the 
corporation  has  received  a  benefit  under  it 
which  ex  wquo  et  bono  it  ought  not  to  re- 
tain; but  the  remedy  is  by  a  suit  in  dis- 
affirmance, nnd  for  an  accounting.  Miller 
V.  American  Mut.  Acci.  Ins.  Co.  92  Tenn.  167, 
21  S.  W.  39,  20:  765 

166.  The  defense  of  ultra  vires  is  as  avail- 
able to  a  corporation  when  the  attempt  is 
made  to  hold  it  liable  as  principal  upon  a 
contract  which  is  entered  into  as  agent,  be- 
cause of  its  failure  to  disclose  its  principal, 
as  when  it  is  sued  unon  a  contraf't  Avhioh  it 
made  as  principal.  Jemison  v.  Citizens  Sav. 
Bank,  112  N.  Y.  135,  25  N.  E.  264,     9:  708 

167.  The  fact  that  the  capital  stock  of  a 
corporation  had  not  all  been  paid  in  and  a 
certificate  of  the  payments  filed  as  required 
by  Mnss.  Pub.  Stat.  chap.  106,  §  46,  which 
forbids  corporations  to  commence  the  trans- 
action of  the  business  for  which  they  are 
organized  until  those  things  are  dbne,  at  the 
time  it  entered  into  and  performed  a  con- 
tract, will  not  preclude  it  from  recovering 
the  amount  due  it  thereon.  Chase's  Patent 
Elevator  Co.  v.  Boston  Tow  Boat  Co.  1.52 
Mass.  428,  28  N.  E.  300,  ■        9:  339 

168.  A  corporation  cannot  hold  on  to  prop- 
erty, and  pleid  the  doctrine  of  ultra  vires 
against  the  obligation  to  pay  for  it.     Sey- 


mour V.  Spring  Jj'orest  Cemetery  Asso.  144 
N.  Y.  333,  39  N.  E.  365,  26:  859 

169.  A  corporation  cannot  defend  against 
a  contract  liability  growing  out  of  a  busi- 
ness in  which  it  is  actually  engaged,  on  the 
ground  that  such  business  was  done  in  ex- 
cess of  its  corporate  powers.  Leinkauf  v. 
Lombard,  137  N.  Y.  417,  33  N.  E.  472,    20:  48 

170.  A  corporation  which  has  entered  into 
and  received  the  benefits  of  a  contract  which 
it  had  the  power  to  make  will  not  be  permit- 
ted to  avoid  paying  the  consideration  money, 
by  showing  that  in  making  the  contract  it 
did  not  conform  to  the  statutory  require- 
ments and  limitations  imposed  on  it.  Wood 
V.  Corry  Water  Works  Co.  44  Fed.  146, 

12:  168 

171.  In  ease  of  a  transaction  which  is  sim- 
ply ultra  I'ires.  neither  party  win  be  heard 
to  allege  its  invalidity  while  retaining  its 
fruits.  Limitation  of  the  contractual  power 
of  a  corporation  does  not  prevent  it  from 
making  restitution  of  money  or  property  ob- 
tained under  an  unauthorized  contract. 
Manchester  &  L.  R.  Co.  v.  Concord  R.  Co.  66 

:  N.  H.  100,  20  Atl.  383,  9:  689 

172.  The  plea  of  ttltra  vires  should  not  as 

\  a  general  rule  prevail,  whether  interposed  • 
'  for  or  against  a  corporation,  when  it  would 
not  advance  justice,  but,  on  the  contrary, 
would  accomplish  a  legal  wrong.  Portland 
Lumbering  &  Mfg.  Co.  v.  East  Portland,  18 
Or.  21,  22  Pac.  536,  6:  290 

173.  One  making  a  contract  in  good  faith 
with  a  corporation  within  the  apparent 
scope  of  its  powers  under  a  statute  making 
an  amendment  to  its  charter  has  a  right  to 
assume  that  the  necessary  steps  have  been 
taken  to  accept  the  power  which  its  officers 
assume  to  have;  and  the  company  is  es- 
topped to  show  that  a  majority  of  its  share- 
holders have  not  accepted  the  amendment, — 
especially  where  nonacceptance  would  pre- 
clude a  continuance  in  business.  Miller  v. 
American  Mut.  Acci.  Ins.  Co.  92  Tenn.  167, 
21  S.  W.  39,  20:  765 

174.  A  surety  company  having  charter 
power  to  finance  other  companies,  and  hav- 
ing actively  undertaken  to  do  so  with  re- 
spect to  a  particular  one  in  whose  success  it 
is  largely  interested,  will  not  be  permitted 
to  plead  ultra  vires  in  defense  of  its  liability 
as  surety  on  a  note  executed  to  obtain  nec- 
essary funds  for  it,  where  the  payee  parted 
with  his  money  under  the  belief  that  the 
trust  company,  in  placing  its  name  on  the 
note,  was  pursuing  its  known  policy  with 
respect  to  the  maker  thereof.  First  Nat. 
Bank  v.  Guardian  Trust  Co.  187  Mo.  494,  86 
S.  W.  109,  70:  79 

175.  A  corporation  cannot  refuse  to  per- 
form its  contract  to  allow  subscriuers  to 
stock  free  passes,  or  to  repurchase  the  stock 
at  the  price  paid,  on  the  ground  that  it  is 
contrary  to  public  policy.  Wisconsin  Lum- 
ber Co.  V.  Greene  &  W.  feleph.  Co.  127  Iowa, 
350.  101  N.  W.  742,  69:  968 

176.  A  corporation  cannot  refuse  to  carry 
out  its  contract  to  repurchase  the  stock  of 
certain  subscribers  upon  certain  contineen- 
cies  on  the  <?round  that  other  stockholders 

i  were  not    given   the   same  right  to   return 


756 


CORPORATIONS,  IV.  d,  3-e. 


their  stock  j  at  least  where  there  is  no  show- 
ing of  any  other  prejudice  to  the  other 
stockholders.  Id. 

Of  other  party  to  contract. 
See  also  supra,  171,  172. 
For  Editorial  Notes,  see  infra,  VUI.  §  10. 

177.  An  individual  may  challenge  the  cor- 
porate capacity  of  a  corporation  as  a  defense 
to  its  right  to  recover,  where,  in  an  action 
between  him  and  the  corporation,  the  latter 
attempts  to  acquire  title  to  property  vested 
in  such  individual.  Myatt  v.  Ponca  Gity 
Land  &  I.  Co.  14  Okla.  189,  78  Pac.  185, 

68:  810 

178.  The  lack  of  the  corporate  existence 
of  the  plaintiff  suing  as  a  corporation  can 
be  set  up  to  defeat  the  action  oy  the  defend- 
ant, where  this  is  based  on  the  failure  of 
the  plaintiff  to  pay  the  bonus  tax  prescribed 
by  Md.  Acts  1890,  chap.  536,  under  which 
such  nonpayment  prevents  the  attempted 
corporation  from  having  or  exercising  any 
corporate  powers.  Maryland  Tube  &  I. 
Works  V.  West  End  Improv.  Co.  87  Md.  207, 
39  Atl.  620,  39:  810 

179.  A  party  dealing  with  a  corporation 
having  limited  an,d  delegated  powers  con- 
ferred by  law  is  chargeable  witJi  notice  of 
them  and  their  limitations,  and  cannot  plead 
ignorance  in  avoidance  of  the  defense  of 
ultra  vires.  National  Home  B.  &  L.  Asso. 
v.  Home  Sav.  Bank,  181  111.  35,  54  N.  E. 
619,  64:  399 

180.  The  want  of  corporate  power  to  take 
an  assignment  of  a  cause  of  action  cannot  be 
interposed  as  a  defense  to  an  action  by  a 
corporation  as  assignee  of  a  claim  for  dam- 
ages. John  V.  Farwell  Co.  v.  Josephson,  96 
Wis.  10.  70  N.  W.  289,  71  N.  W.  109,    37:  138 

181.  A  lessee  of  a  corporation  cannot  es- 
cape the  payment  of  rent  for  the  time  dur- 
ing which  it  has  had  undisturbed  enjoyment 
of  the  property  under  the  lease,  merely  be- 
cause the  lease  was  void  as  against  the  state 
for  want  of  capacity  in  the  corporation  to 
make  it.  Bath  Gaslight  Co.  v.  Claffv,  151  N. 
Y.  24,  45  N.  E.  390,  "   36:  664 

3.  Formal    Requisites. 

Sufficiency   of   Writing  to   Satisfv   Statute 

of  Frauds,  see  Contracts,  219,' 221. 
See  also  supra.  121. 
For  Editorial  Notes,  sec  infra,  VIII.  §  11. 

182.  The  fact  that  the  constitutional  re- 
quirement as  to  notice  to  stockholders  was 
not  complied  with  before  the  execution  of  a 
mortgage  of  the  corporate  property  is  not 
a  valid  defense  to  a  suit  on  the  mortgage,  if 
every  stockholder  was  present  when  the 
mortgage  was  determined  on  and  voted  in 
favor  of  it,  and  the  corporation  has  received 
the  benefit  of  the  money  raised  thereby. 
Wood  v.  Corrv  Water  Works  Co.  44  Fed. 
146,  *  12:  168 

4.  Ratification. 

By  Bank,  of  Guaranty,  see  Banks,  55. 
Sufficiency  of  Proof  of,  see  Evidence.  2317. 
See  also  infra,  232,  273.  274,  280,  353,  436; 

Municipal  Corporations,  388. 
For  Editorial  Notes,  see  infra,  VllT.  §  12. 


183.  A  corporation  cannot  ratify  a  con- 
tract which  it  had  not  the  power  to  make. 
Thompson  v.  West,  59  Neb.  677,  82  N.  W. 
13,  49:  337 

184.  A  corporation  may  ratify  a  contract 
which  it  had  power  to  make,  when  entered 
into  on  its  behalf  without  its  authority,  or 
voidable  because  not  reduced  to  writing. 
North  Point  Consol.  Irrigation  Co.  v.  Utah  & 
S.  L.  Canal  Co.   16  Utah.  246,  52  Pac.   168, 

40:  851 

185.  An  agreement  of  purchase  in  the 
name  of  a  corporation  a  day  or  two  before 
the  actual  filing  of  the  corporate  certificate 
is  binding  if  subsequently  ratified.  Sey- 
mour v.  Spring  Forest  Cemetery  Asso.  144 
N.  Y.  333,  39  N.  E.  365,  26:  859 

186.  A  corporation  must  be  held  to  have 
adopted  the  acts  of  its  agents  in  conducting 
a  business  ultra  vires,  where  its  manag- 
ing officers,  knowing  the  business  has  been 
done  and  that  the  income  of  the  business  has 
been  received  and  the  expenses  of  it  paid 
by  the  treasurer,  have  adopted  the  action  of 
the  treasurer  and  elected  to  keep  the  money. 
Nims  V.  Mt.  Hermon  Bftvs  School,  160  Mass. 
177,  35  N.  E.  776,  '  22:  364 

187.  Ratification  of  a  contract  between 
corporations  having  common  directors  is 
shown  where  one  company  has  entirely  per- 
formed its  part  of  the  contract,  and  the 
other  has  performed  a  part  of  it  and  cannot 
restore  anything  or  place  the  other  party, 
in  whole  or  in  part,  in  statu  quo, — especial- 
ly when  the  stockholders  have  expressly  ap- 
proved the  contract.  San  Diego,  O.  T.  &  P. 
B.  R.  Co.  v.  Pacific  Beach  Co.  112  Cal.  53,  44 
Pac.  333,  33:  788 

188.  Unanimous  consent  of  all  the  stock- 
holders is  not  necessary  to  the  ratification 
of  a  voidable  contract  which  a  paajority  of 
them  could  have  authorized  in  the  first  in- 
stance. Id. 

189.  Assent  by  all  the  directors  and  stock- 
holders of  a  corporation  to  the  transaction 
by  the  corporation  of  business  which  is  sim- 
ply ultra  vires  will  cause  acts  done  in  the 
furtherance  of  such  business  to  be  regarded 
as  corporate  acts,  and  contracts  made  with 
third  persons  to  be  binding  on  it.  Holmes, 
B.  &  H.  V.  Willard,  125  N.  \.  75,  25  N.  E. 
1083,  11:  170 

190.  That  the  terms  of  the  resolution  un- 
der which  corporate  bonds  were  pledged  did 
not  authorize  the  pledge  will  not  invalidate 
it  if  it  was  made  with  the  knowledge  and 
at  the  instance  of  all  the  stockholders,  and 
has  been  solemnly  ratified  by  them  with 
full  knowledge  of  the  facts.  Nelson  v.  Hub- 
bard, 96  Ala.  238,  11  So.  428,  17:  375 

191.  The  consent  of  stockholders  cannot 
legalize  or  vitalize  a  void  illegal  contract  by 
which  a  corporation  attempts  to  transfer  all 
its  property  to  another  company  in  consid- 
eration of  shares  in  the  latter.  McCutch- 
eon  V.  Merz  Capsule  Co.  37  U.  S.  App.  586. 
71  Fed.  787,  19  C.  C.  A.  108,  31:  415 

e.  Property  Rights. 

Power   to   Purchase   or   Transfer   Property, 
see  supra,  TV.  d. 


CORPORATION'S,  IV.  f. 


757 


Effect  of  Dissolution  on,  see  infra,  VI.  c. 
Of  Colleges,  see  Colleges,  3-5. 
See  also  infra,  480. 

192.  The  right  of  a  corporation  to  occupy 
city  wharves  with  a  warehouse  connected 
with  an  elevator,  for  any  other  purpose  than 
to  store  and  handle  grain,  cannot  be  ques- 
tioned by  the  owner  of  the  fee- of  the  wharf 
property  on  the  ground  that  the  corporation 
is  exceeding  its  corporate  powers.  Belcher's 
Sugar  Ref.  Co.  v.  St.  Louis  Grain  Elev.  Co. 
101  Mo.  192,  13  S.  W.  822,  8:  801 
Ownership  of  property. 

See  also  infra,  828,  829. 

193.  The  power  of  a  corporation  to  ac- 
quire and  hold  title  to  real  estate  cannot  be 
questioned  by  any  party  except  the  state, 
where  it  has  power  to  hold  real 'estate  for 
some  purposes.  Hamsher  v.  Hamsher,  132 
111.  273,  23  N.  E.  1123,  8:  556 

194.  Vacant  land  may  be  held  by  a  cor- 
poration when  necessary  for  use  in  its  busi- 
ness in  the  near  future.  People  ex  rel. 
Moloney  v.  Pullman's  Palace  Car  Co.  175  111. 
125,  51  N.  E.  664,  64:  366 

195.  Vacant  lots  kept  for  future  dwell- 
ings cannot  be  owned  by  a  corporation  dn 
the  exercise  of  its  implied  powers,  when 
they  constitute  part  of  a  tract  on  which 
the  corporation  has  built  a  town  in  excess 
of  its  powers.  Id. 

196.  The  ownership  of  an  office  building 
near  the  business  center  of  a  city,  by  a 
manufacturing  corporation,  does  not  ex- 
ceed its  incidental  powers  merely  because 
the  building  is  larger  than  its  needs  for 
present  use,  and  a  part  of  it  is  therefore 
rented,  if  it  is  probable  that  the  whole 
building  will  be  needed  for  its  own  business 
in  the  future.  Id. 

197.  The  ownership,  by  a  manufacturing 
corporation,  of  a  town  or  city  of  more  than 
2,000  houses,  with  streets,  alleys,  sewer  sys- 
teim,  dwellings,  tenement  houses,  churches, 
hotel,  schools,  theater,  and  business  build- 
ings, no  one  of  which  is  occupied  by  any 
other  than  a  tenant  of  the  corporation,  is 
contrary  to  public  policy,  and  in  excess  of 
the  implied  powers  of  the  corporation.      Id. 

198.  The  ownership  of  a  sewerage  sys- 
temi,  and  of  a  sewerage  farm  on  which 
vegetables  are  raised  for  sale,  is  not  within 
the  implied  powers  of  a  corporation  because 
of  the  necessity  of  sewerage  for  a  town 
owned  by  it,  when  the  ownership  of  such 
town  is  in  excess  of  its  powers.  Id. 

199.  A  corporation,  although  created  for 
a  limited  period,  may  take  from  a  city  in 
which  the  title  to  streets  is  vested,-  by  a 
grant  of  a  franchise  to  maintain  a  street 
railroad,  an  interest  in  perpetuity  which  is 
irrevocable.  People  v.  O'Brien,  111  N.  Y. 
1,  18  N.  E.  692,  2:  255 

200.  A  deed  conveyinsr  lands  to  a  corpo- 
ration by  name  before  the  charter  had  been 
obtained,  signed  and  acknowledgea  by  the 
grantor  and  delivered  to  a  third  party,  with 
directions  to  retain  it  until  the  corporation 
obtained  its  charter  and  organized,  and  then 
to  deliver  it  to  the  corporation;  and  which, 
after  the  charter  had  been  received  and  the 
corporation   organized  under  it,  such  third 


person  delivered  to  the  corporation,  which 
accepted  it, — operated  as  a  valid  conveyance 
of  said  land  to  the  corporation  from  the 
date  of  the  delivery  of  said  deed  to  it. 
Spring  Garden  Bank  v.  Hulings  Lumber  Co. 
32  W.  Va.  357,  9  S.  E.  243,  3 :  583 

Power  to  take  by  will. 

Capacity    to   Take   Devise  or   Bequest,   see 
Charities,    64-68;    Corporations,    59-62. 
See  also  infra,  830. 
For  Editorial  Notes,  see  infra,  VIII.  §  10. 

201.  A  corporation,  by  the  common  law, 
had  power  to  take  property  by  devise.  Re 
McGraw's  Estate,  111  N.  Y.  66,  19  N.  E.  233, 

2:387 

f.  Liabilities. 

After  Consolidation,  see  supra,  56-58. 

Power  of  Officers  and  Agents  to  Bind,  see 
infra,  IV.  g,  2. 

Liability  on  Notes,  see  infra,  295-302. 

Liability  in  Case  of  Forged  or  Fraudulent 
Issue  of  Stock,  see  infra,  V.  d. 

Liability  in  Assumpsit  on  Agreement  to  Re- 
pay Loan,  see  Assumpsit,  11,  12. 

As  Bailee,  see  Bailment,  24. 

Illegal  Combinations  by,  in  Restraint  of 
Trade,  Commerce,  and  Competition,  see 
Conspiracy,  II. 

For  Services  Rendered  under  Agreement 
with  Promoter,  see  Contracts,  10. 

Default  on  Indictment  against,  see  Crimi- 
nal LaAv,  188. 

For  Causing  Death,  see  Deatn,  43. 

For  Loan  on  Note  of  Individuals,  see  Debt- 
or and  Creditor,  3. 

For  Maintaining  Nuisance,  see  Highways, 
50;   Nuisances,  107. 

See  also  supra,  118;  infra,  678,  734. 

For  Editorial  Notes,  see  infra,  VIII.  §§  13, 
47. 

202.  Corporations  are  not  bound  by  false 
and  simulated  entries  upon  their  records  un- 
less they  have  estopped  themselves  to  deny 
their  truth.  City  Electric  Street  R.  Co.  v. 
First  Nat.  Exch.  Bank,  62  Ark.  33,  34  S. 
W.  89,  31 :  535 

203.  A  corporation  cannot  escape  liabil- 
ity, to  the  owner  of  its  registered  bonds  for 
their  value,  where  it  has  canceled  the  regis- 
tration, and  made  them  payable  to  bearer, 
contrary  to  its  agreement,  by  the  fact  that 
its  transfer  agent  was  deceived  by  the  for- 
geries of  the  agent  of  the  owner,  where  such 
agent,  in  dealing  with  the  bonds,  was  acting 
entirely  outside  the  scope  of  his  authority. 
Jennie  Clarkson  Home  for  Children  v.  Mis- 
souri, K.  &  T.  R.  Co.  182  N.  Y.  47,  74  N.  E. 
571,  70:  787 
For  tort. 

Revival  of  Libel  Suit  against  Trustees  after 
Dissolution,  see  Abatement  and  Re- 
vival, 46. 

Liability  for  Conspiracy,  see  Conspiracy. 

Creditor?'  Bill  for,  see  Creditors'  Bill,  6. 

Liability  for  Arrest  by,  see  False  Imprison- 
ment, 4,  13-20. 

Joint  Liability  of  Corporation  and  Agent 
for  Causing  Death,  see  Joint  Creditors 
and  JDebtors,  3.  _„ 

For  Editorial  Notes,  see  infra,  Vlll.  §  13. 


758 


CORPORATIONS,  IV.  g,  1. 


204.  Loiporatioiis  can  be  held  liable  in 
damages  for  torts  done  in  pursuance  of  con- 
spiracy and  combination  between  them  and 
other  corporations  or  persons,  the  same  as 
natural  persons.  West  Virginia  Transp.  Co. 
V.  Stanaard  Oil  Co.  50  W.  Va.  till,  40  S. 
E.  591,  56: 804 

205.  A  corporation  is  not  responsible  for 
imauthorized  and  unlawful  acts  of  its  offi- 
cers, though  done  colore  officii.  Central  R. 
Co.  V.  Brewer,  78  Md.  394,  28  Atl.  615,  27:  63 

206.  An  educational  corporation  engaged 
in  operating  a  public  ferry  carrying  passen- 
gers tor  hire  cannot  escape  liability  for 
negligence  in  the  management  of  the  ferry, 
on  the  ground  that  the  business  was  ultra 
vires.  Kims  v.  Mt.  Hermon  Boys'  School, 
160  Mass.  177,  35  N.  E.  776,  22:  364 

207.  A  corporation  cannot  be  held  liable 
to  one  who  is  injured  in  attempting  to  save 
its  superintendent  from  peril,  on  the  ground 
that  it  Ought  to  have  anticipated  that, 
when  the  superintendent  placed  himself  in 
peril,  someone,  upon  discovering  that  fact, 
would  attempt  to  shield  him,  where  there 
is  nothing  to  show  that  the  work  under- 
taken by  the  superintendent  might  not  have 
been  done  with  safety;  since  the  company 
was  not  bound  to  assume  that  the  superin- 
tendent would  needlessly  expose  himself,  or 
that,  in  case  he  did  so,  someone  would  im- 
peril his  own  safety  to  rescue  him.  Savior 
V.  Parsons,  122  Iowa.  679.  08  X.  W.  500,"^ 

64:  542 

208.  A  corporation  may  become  civilly  re- 
sponsible for  libel.  Missouri  P.  R.  Co.  v. 
Richmond,  73  Tex.  568,  11  S.  W.  555,  4:  280 
After  transfer  of  franchise. 

Hiability  of  Transferee,  see  supra,  63-68. 

209.  The  original  obligation  of  a  railroad 
company  to  the  public  cannot  be  discharged 
by  a  transfer  of  its  franchises  to  another 
company,  except  by  legislative  enactment 
consenting  to  and  authorizing  such  transfer, 
with  an  exemption  granted  to  such  com- 
pany relieving  it  from  liability.  Legis- 
lative consent  to  the  transfer  is  not  alone 
sufficient;  there  must  be  a  release  from  the 
obligations  of  the  companv  to  the  public. 
Chollette  v.  Omaha  &  R.  V.  R.  Co.  26  Neb. 
159,  41   X.  W.   1106,  4:  136 

210.  A  railroad  company  organized  and 
incorporated  under  the  laws  of  Nebraska 
cannot  absolve  itself  from  the  performance 
of  duties  imposed  upon  it  by  law,  or  relieve 
itself  from  liability  for  the  wrongful  acts 
or  omissions  of  duty  of  persons  operating 

.its  road,  by  transferring  its  corporate 
powers  to  them,  or  permitting  them  to 
operate  its  road  as  owners  of  its  capital 
stock.  To  allow  it  to  do  so  would  be  con- 
trary to  the  public  policy  of  the  state  as 
expressed  in  its  Constitution  and  laws  with 
reference  to  railroad  companies.  Id. 

Criminal  liability. 

For  Criminal  Contempt,  see  Contempt.  18. 
For  Editorial  Notes,  see  infra,  VIII.  §  13. 

211.  A  corporation  in  the  hands  of  a  re- 
ceiver who  has  full  possession  of  its  prop- 
erty and  entire  charge  of  its  affairs  cannot 
be  prosecuted  for  crimes  and  misdemeanors 
committed  by  his  agents  or  servant*.    State 


v.  Wabash  R.  Co.  115  Ind.  466,  17  N.  E.  909, 

1:179 

g.  Officers;  Meetings. 
1.  In   General;    Qualifications. 

Meetings  of  Corporate  Stockholders,  see 
infra,  V.  g. 

Validity  of  Increase  of  Directors,  see  infra, 
644. 

Preference  to,  in  Case  of  Insolvency,  see 
infra,  786-802. 

Recovery  Back  by  Corporation'  of  Money 
Paid  on  Debt  of,  see  Assumpsit,  44. 

As  to  Officers  of  Banks,  see  Banks,  III. 

Bonds  for  Fidelity  of  Officers,  see  Bonds,  H. 
b. 

Vested  Right  of  Stockholders  to  Elect  Di- 
rectors, see  Constitutional  Law,   138. 

Agreement  not  to  Engage  in  Competitive 
Business,  see  Contracts,  581. 

Presumption  as  to  Knowledge  of,  see  Evi- 
dence, 311-315. 

Notice  of  Corporate  Matters  to  Oflficers  or 
Stockholders,  see  Notice,  19,  20. 

Remedy  for  Enforcing  Rights  of  Director, 
see  Quo  Warranto,  6. 

Death  of  Officer  as  Affecting  Competency  of 
Witnesses,  see  Witnesses,  60. 

Service  of  Process  on  Officer  or  Agent,  see 
Writ  and  Process,  21-24,  31-40. 

See  also  supra,  72;  infra,  684. 

For  Editorial  Notes,  see  infra,  VIII.  §  14. 

212.  It  is  a  matter  of  common  knowledge 
that  where  the  ownership  of  a  majority  of 
the  stock  of  a  corporation  changes,  the 
board  of  directors  usually  change,  unless 
its  members  are  already  in  harmony  with 
the  policy  of  its  purchasers.  Farmers' 
Loan  &  T.  Co.  v.  New  York  &  N.  R.  Co. 
150  N.  Y.  410,  44  N.  E.  1043,  34:  76 
Legality  of  election  of  officers. 

Of  Bank  Officers,  see  Banks,  27. 
See  also  infra,  641,  654. 

213.  Original  members  of  a  corporation, 
who  organized  and  chose  officers  to  repre- 
sent the  corporation  as  their  successors, 
cannot,  after  the  lapse  of  thirty-two  years, 
ignore  their  former  action,  and  choose  new 
officers  upon  discovering  that  the  original 
choice  was  illegal,  where,  in  the  meantime 
the  affairs  of  the  corporation  have  been 
regularly  carried  on  under  the  belief  that 
the  first  action  was  legal.  Cooke  v.  Mar- 
shall, 191  Pa.  315.  43  Atl.  314,  196  Pa.  200, 
46  Atl.  447,  64:  413 

214.  The  acts  of  trustees  of  a  corpora- 
tion elected  in  strict  conformity  with  the 
by-laws  of  the  corporation  for  a  long  period 
of  time,  during  which  their  title  was  un- 
questioned, will  be  regarded  as  entirely  le- 
gal, although  they  were  elected  by  holders 
of  stock  which  the  corporation  had  no 
power  to  create.  Id. 
Review  of  election  to  vacancy. 

215.  The  word  "election,"  in  a  statute  pro- 
viding for  the  review  of  "any  election  held 
by  any  corporate  body,"  applies  only  to  an 
election  by  the  stockholders,  and  not  to  a 
selection  by  the  board  of  directors  of  a  per- 
son  to   fill   a   vacancy   in   the   board,   where 


CORPORATIONS,  IV.  g,  2: 


759 


the  statutes  provide  that  the  directors  shall 
be  elected  annually  by  the  stockholders, 
and  also  provide  for  filling  a  vacancy  by 
"an  appointee  of  the  board."  Wickersham 
v.  Brittan,  93  Cal.  34,  28  Pac.  792,  15:  106 
Qualifications. 

Qualification  of  Bank  Officers,  see  Banks, 
28-30. 
210.  A  joint  stock  corporation  has  power 
by  by-law  to  declare  that  no  person  who  is 
attorney  against  it  in  a  suit  shall  be  elig- 
ible as  a  director.  Cross  v.  West  Virginia 
C.  &  P.  R.  Co.  37  W.  Va.  342,  16  S.  E.  587, 

18:582 

217.  Power  to  prescribe  reasonable  quali- 
fications of  its  directors  by  by-law  is  in- 
cluded in  power  to  make  such  by-laws,  rules, 
and  regulations  for  the  management  and 
government  of  the  aflfairs  of  the  dbrporation, 
its  oflRcers,  directors,  and  agents,  as  may 
be  deemed  necessary  or  proper.  Id. 

218.  A  person  not  a  citizen  of  Pennsyl- 
vania who  is  a  citizen  of  the  United  States 
can  become  a  member  of  the  Farmers  & 
Mechanics  Institute  of  Northampton  Coun- 
ty, Pennsylvania,  there  being  no  statutory 
or  charter  provision  against  his  doing  so; 
and  such  nonresident  stockholder  takes  his 
shares  with  all  the  rights  and  privileges 
which  pertain  to  them  in  the  hands  of  a 
citizen,  and  he  may  vote  upon  them,  and, 
where  no  other  qualification  than  ownership 
of  stock  is  required  of  tlie  directors,  may 
become  a  director.  Detwiller  v.  Com.  ex  rel. 
Dickinson.  131  Pa.  614,  18  Atl.  990,      7:  367 

219.  One  who  is  not  a  citizen  of  the 
United  States,  but  is,  and  for  many  years 
has  been,  a  resident  and  property  holder  in 
Pennsylvania,  can  become  a  stockholder, 
and  is  entitled  to  vote  at  the  stockholders' 
meetings,  and  may  be  legally  elected  as  a 
director  of  a  corporation  founded  under  the 
Pennsylvania  laAvs.  Com.  ex  rel.  Robinson 
V.  Hemingway,  131  Pa.  636.  18  Atl.  992, 

7:  360 

220.  The  transferee  of  stock  upon  the  cor- 
porate records  is  qualified  to  vote  and  be- 
come a  director,  although  the  transfer  was 
made  for  the  express  and  sole  purpose  of 
so  qualifying  him,  if  it  was  not  in  further- 
ance of  a  fraudulent  scheme.  Re  Argus 
Printing  Co.  1  N.  D.  434,  48  N.  W.  347, 

12:  781 

221.  To  be  eligible  as  a  director  under  a 
statute  which  requires  directors  to  be  stock- 
holders, a  person  mvist  appear  to  be  a  stock- 
holder on  the  corporate  records.  Id. 

222.  Persons  who  are  not  members  of  an 
assessment  fire  association  cannot  lawfully 
fill  the  oflRce  of  director  thereof.  State  ex 
rel.  Richards  v.  Manufacturers'  Mut.  F. 
Asso.  50  Ohio  St.  145,  33  N.  E.  401,  24:  252 

223.  By-laws  of  a  corporation  providing 
that  when  any  director  snail  die,  resign,  ne- 
glect to  serve,  or  remove  out  of  the  county, 
the  board  may  proceed  to  supply  the 
vacancy,  do  not  authorize  a  director  to  be 
ousted  on  the  ground  that  he  is  a  non- 
resident of  the  commonwealth.  Detwiller 
v.  Com.  ex  rel.  Dickinson,  131  Pa.  614,  18 
Atl.  990,  7:  357 


2.  Powers. 

Power  to  Deal  in  Own  Interests,  see  infra, 
rv.  g,  4. 

Of  Bank  Officers,  see  Banks,  III.  b. 

Of  General  Manager,  Presumption  as  to,  see 
Evidence,  288. 

Admissibility  of  Declarations  by  Agents  and 
Officers,  see  Evidence,  1619-1629. 

Injunction  against  IMaking  Notes,  see  In- 
junction, 228. 

Of  Insuranc-e  Agent,  see  Insurance,  I.  dj  V. 
b,  3. 

Imputing  Officer's  or  Agent's  Knowledge  to 
Corporation,  see  Notice,  21,  33,  41,  42, 
58-73. 

Allegation  as  to,  see  Pleading,  315. 

Limitation  by  By-Laws  on  Authority  of 
Agent,  see  Principal  and  Agent,  10. 

Competency  of  Officer  as  Witness,  see  Wit- 
nesses, 59. 

See  also  supra,  123,  132,  133;  infra,  451. 

For  Editorial  Notes,  see  infra,  VIIL  §  15. 

224.  An  agent  to  whom  are  intrusted  the 
entire  management  and  control  of  a  cor- 
poration whose  stockholders  hold  no  meet- 
ings has  power  to  make  an  assignment  of 
its  property  for  its  creditors.  Conely  v. 
Collins,  119  Mich.  519,  78  N.  W.  555,  44:  844 

225.  An  officer  of  a  corporation  does  not 
act  as  its  agent  in  negotiating  a  certificate 
of  stock  as  security  for  his  individual  debts, 
so  as  to  bind  the  company  by  his  represen- 
tations as  to  his  ownership  of  the  cer- 
tificate, which  was  in  fact  stolen,  the  trans- 
action being  one  which  in  no  way  concerns 
hi«  official  duty,  but  being  wholly  for  his 
own  personal  profit.  Farmers'  Bank  v.  Die- 
bold  Safe  &  L.  Co.  66  Ohio  St.  367,  64  N.  E. 
518,  58:  620 

226.  The  exeroise  of  the  power  to  make 
negotiable  notes  by  officers  of  a  corporation 
does  not  raise  a  presumption  of  their  au 
thority  to  do  so,  in  the  absence  of  a  usage 
or  custom  from  which  such  authority  can 
be  implied.  City  Electric  Street  R.  Co.  v. 
First  Nat.  Exch.  Bank,  62  Ark.  33.  34  S. 
W.  89,  31 :  535 

227.  Persons  dealing  with  the  agent  of  a 
foreign  corporation,  who  has  been  consti- 
tuted its  general  resident  manager  and  is 
engaged  in  carrying  on  the  business  of  the 
corporation  in  a  distant  land,  have  a  right 
to  assume,  in  the  absence  of  notice,  that  the 
manager's  authority  extends  to  all  usual 
dealings  necessary  to  the  business,  and  are 
not  bound  by  secret  limitations  or  instruc- 
tions qualifying  the  terms  of  the  written  or 
verbal  appointment.  Rathburn  v.  Snow, 
123  N.  Y.  343,  25  N.  E.  379,  10:  355 
Of  president. 

Of  Bank  President,  see  Banks,  31-34. 

Taking  Note  from,  as  Security  for,  or  in 
Payment  of.  Individual  Debt,  see  Bills 
and  Notes,  247,  256. 

Evidence  of  Admission  by,  see  Evidence. 
944. 

Imputing  President's  Knowledge  to  Corpo- 
ration, see  Notice,  42,  61. 

See  also  infra,  765. 

For  Editorial  Notes,  serinfra.  VTTT.  §  16. 


760 


CORPORATIONS,  IV.  g,  2. 


228.  The  president  of  a  corporation  has 
no  implied  authority  to  act  as  its  agent. 
Wait  V.  Nashua  Armory  Asso.  66  N.  H.  581, 
23  Atl.  77,  14:  356 

229.  The  management  of  the  entire  busi- 
ness of  a  corporation  may  be  intrusted  to 
its  president,  either  by  an  express  resolu- 
tion of  the  directors  or  by  their  acquies- 
cence in  a  course  of  dealing.  Jones  v.  "V^il- 
liams,  139  Mo.  1,  39  S.  W.  486,  40  S.  W.  353, 

37:  682 

230.  Statutes  requiring  a  corporation  to 
be  controlled  and  managed  by  directors,  but 
authorizing  them  to  appoint  such  subordin- 
ate officers  and  agents  as  the  business  may 
require,  do  not  prevent  the  directors  from 
intrusting  the  entire  management  of  the 
business  to  a  president,  as  this  is  not  a  dele- 
gation of  corporate  rights  and  powers,  but 
a  mere  authorization  to  perform  the  busi- 
ness for  and  in  the  name  of  the  corpo- 
ration. Id. 

231.  A  corporation  which  used  mules  in 
its  business  is  liable  on  notes  for  mules 
given  in  its  name  by  its  president,  where 
he  had  frequently  bought  mules  of  the 
payee  and  given  therefor  notes  of  the  cor- 
poration, which  it  had  always  paid,  and  the 
seller  had  no  reason  to  suppose  that  the 
present  purchase  was  not  made  for  the  cor- 
poration as  the  president  represented  it  to 
be.  Sparks  v.  Despatch  Transfer  Co.  104 
Mo.  531,  15  S.  W.  417,  12:  714 

232.  The  president  of  a  corporation,  who 
is  its  general  manager,  has  authority  to 
adopt  and  ratify  a  contract  made  by  him- 
self for  the  corporation  before  it  was  legally 
created,  for  the  performance  of  services  for 
the  company,  which  he  would  have  power 
to  engage  if  no  previous  contract  existed. 
Cakes  v.  Cattaraugus  Water  Co.  143  N.  Y. 
430,  38  N.  E.  461,  26:  544 

233.  An  agreement  on  behalf  of  a  bank, 
executed  by  the  president  and  manager, 
with  the  approval  of  its  vice  president,  to 
waive  a  defense  under  the  statute  of  limi- 
tations, may  be  sufficient  to  bind  the  bank, 
although  it  was  not  ratified  by  the  direc- 
tors, and  they  were  not  aware  of  its  exe- 
cution, where  the  entire  management  of 
the  business  was  left  to  the  president  and 
vice  president,  and  they  were  not  accus- 
tomed to  report  their  actions  to  the  direc- 
tors, or  to  ask  a  ratification  thereof,  or  first 
to  obtain  special  authority  before  perform- 
ing particular  acts,  while  a  bj'-law  of  the 
bank  provided  that  the  manager  should 
have  power  to  perform  all  duties  which  the 
interests  of  the  bank  misht  require.  Wells, 
F.  &  Co.  V.  Enright.  127  Cal.  669,  60  Pac. 
439,  49:  647 
Of  president  and  secretary. 

Power  of  Secretary  to  Take  Acknowledg- 
ment, see  Acknowledgment,  0. 

Of  Secretary  of  Loan  Association,  see  Build- 
ing and  Loan  Associations,  3. 

234.  The  president  and  secretary  of  a  cor- 
poration have  no  inherent  power  to  execute 
negotiable  notes  in  its  name.  Citv  Electric 
Street  R.  Co.  v.  First  Nat.  Exch.'Bank,  62 
Ark.  33,  34  S.  W.  89,  31  :  535 


Of  president  and  actuary. 

235.  A  contract  for  the  employment  dur- 
ing life  of  a  person  to  act  in  a  medical 
capacity  for  a  life  insurance  company  is 
not  within  the  authority  conferred  upon 
the  president  and  actuary  by  a  by-law  em- 
powering them  to  "appoint,  remove,  and  fix 
the  compensation  of  each  and  every  person, 
except  agents,  employed  by  the  company," 
where  the  members  of  the  board  of  trus- 
tees, to  whom  the  management  and  control 
of  the  corporation  are  given,  hold  office  only 
for  four  years  each.  Carney  v.  New  York 
L.  Ins.  Co.  162  N.  Y.  453,  57  N.  E.  78,  49:  471 
Of  vice  president. 

Imputing    Vice    Principal's    Knowledge    to 

Corporation,  see  Notice,  69. 
For  Editorial  Notes,  see  infra,  VIII.  §  16. 

236.  A  chattel  mortgage  on  corporate 
property,  executed  by  the  vice  president  of 
the  corporation,  is  valid  under  a  statute 
permitting  corporations  to  convey  lands  by 
deed  signed  by>the  president,  vice  president, 
or  presiding  member  or  trustee  of  the  cor- 
poration,— especially  when  he  is  expressly 
authorized  to  do  so  by  the  directors. 
American  Exch.  Nat.  Dank  v.  Ward,  49  C. 
C.  A.  611,  111  Fed.  782,  55:  356 
Of  treasurer. 

Power  to  Take  Acknowledgment,  see 
Acknowledgment,  6. 

Binding  Effect  on  Treasurer,  af  Books  Kept 
by  Him,  see  Evidence,  966. 

Imputing  Treasurer's  Knowledge  to  Corpo- 
ration, see  Notice,  41. 

237.  A  corporation  is  bou^d  by  the  act 
of  its  treasurer  in  contracting  to  pay  a 
mortgage  upon  property  which  has  been 
transferred  to  the  corporation,  where  the  di- 
rectors have  ceased  to  hold  meetings,  and 
permit  the  treasurer  to  attend  to  the  man- 
agement of  the  financial  and  fiscal  affairs  of 
the  company.  Franklin  Sav.  Bank  v.  Coch- 
rane, 182  Mass.  586,  66  N.  E.  200,    61 :  760 

238.  A  charitable  corporation  is  not  bound 
by  the  act  of  its  treasurer  in  forging  a 
power  of  attorney  and  resolution  authoriz- 
ing the  transfer  of  registered  securities 
belonging  to  it,  where  his  duties  are  ex- 
pressly confined  to  the  care  of  the  secur- 
ities, and  he  has  been  given  no  authority, 
either  expressly,  or  bj'  holding  him  out  as 
possessing  it,  to  sell  or  dispose  of  them. 
.Jennie  Clarkson  Home  for  Children  v.  Mis- 
souri, K.  &  T.  R.  Co.  182  N.  Y.  47,  74  N. 
E.  571,  70:  787 

239.  The  treasurer  of  a  horse  railroad  cor- 
poration has  no  authority  to  borrow  money 
for  the  company  unless  such  authority  is 
expressly  given  him.  Craft  v.  South  Bos- 
ton R.  Co.  150  Mass.  207,  22  N.  E.  920, 

5:641 

Of  directors  or  trustees  generally. 

Power  to  Take  Acknowledgment,  see 
Acknowledgment,  5. 

Of  Directors  of  Voluntary  Association,  .eee 
.Associations,  26. 

Of  Bank  Directors,  see  Banks,  52. 

Power  of  Courts  to  Review  Action  of  Di- 
rectors, see  Carriers,   1118. 

Imputing  Director's  Knowledge  to  Corpo- 
ration, see  Notice,  33,  61,  62,  69. 


CORPORATIONS,  IV,  g,  8. 


761 


After  Appointment  of  Receiver,  see  Re- 
ceivers, 58. 

Of  Public  Corporation,  see  State  Institu- 
tions, 2. 

Subrogation  of,  see  Subrogation,  4. 

See  also  supra,  120,  142,  230,  233;  infra, 
485. 

For  Editorial  Notes,  see  infra,  VIII.  §  15. 

240.  An  extension  of  the  business  of  a 
corporation  into  another  state  is  vv^ithin  the 
power  of  the  directors,  Lewis  v.  American 
Sav.  &  L.  Asso.  98  Wis.  203,  73  N.  W.  793, 

39:  559 

241.  The  power  to  enact  suitable  by-laws 
rests  in  the  stockholders  of  a  corporation, 
and  is  not  included  in  the  general  power  of 
the  directors  to  control  the  stock  and  busi- 
ness of  the  company.  North .  Milwaukee 
Town-Site  Co.  v.  Bishop,  103  Wis.  492,,  79 
N.  W.  785,  45:  174 

242.  Authority  given  to  a  board  of  direc- 
tors to  execute  a  note  for  a  certain  sum  of 
money  and  interest  does  not  authorize  them 
to  include  in  the  note  a  stipulation  for  an 
attorney's  fee,  if  collected  by  an  attorney. 
Hardin  v.  Iowa  R.  &  Constr.  Co.  78  Iowa, 
726,  43  N.  W.  543,  6:  52 

243.  Where  a  tripartite  agreement  be- 
tween three  corporations  has  been  held  in- 
valid as  to  one  of  them,  an  action  to  sever 
the  contractual  relations  is  within  the  hon- 
est discretion  of  the  directors  of  the  other 
companies.  Beveridge  v.  New  York  Elev. 
R.  Co.  112  N.  Y.  1,  19  N.  E.  489,  2:  648 

244.  An  agreement  by  the  directors  of  a 
corporation,  made  in  good  faith  and  with 
apparent  reasons,  to  reduce  the  amount  of 
moneys  payable  under  a  lease  of  their  cor- 
poration, is  not  in  excess  of  their  power  or 
voidable  at  the  instance  of  the  stockholders, 
— especially  where  nearly  nine  tenths  of 
them  have  acquiesced  and  given  practical 
eflFect  to  the  agreement.  Id. 

245.  Silent  acquiescence  by  directors  of  a 
corporation  in  acts  of  its  building  commit- 
tee in  procuring  bids  and  letting  the  con- 
tract for  the  building,  with  full  knowledge 
of  such  acts,  will  make  the  contract  binding 
on  the  corporation,  although  the  committee 
had  in  fact  no  authority  to  make  it.  Mc- 
Neil V.  Boston  Chamber  of  Commerce,  154 
Mass.  277,  28  N.  E.  245,  13:559 
Of  majority  of  directors. 

246.  A  corporation  is  liable  for  the  value 
of  extra  work  done  by  a  contractor  under 
orders  of  a  director  who  promised  that  the 
company  would  pay  for  it,  although  the  di- 
rector acted  without  authority,  where  a 
majority  of  the  directors  knew  that  the 
contractor  was  doing  the  work,  and  that  he 
had  refused  to  do  it  without  extra  pay,  and 
the  company  received  and  retained  the 
benefit.  Tryon  v.  White  &  C.  Co.  62  Conn. 
161,  25  Atl.  712,  20:291 

247.  Four  of  the  six  directors  who  own  in 
equal  shares  all  the  stock  of  a  corporation 
formed  for  establishing  a  summer  resort 
upon  its  land  may  make  a  binding  dedica- 
tion of  portions  of  such  land  to  the  public 
for  parks.  Attorney  General  v.  Abbott,  154 
Mass.  323,  28  N.  E.  346,  13:  251 


Of  majority  of  committee. 

248.  A  majority  of  a  committee  appoint- 
ed by  a  corporation  to  contract  for  the  erec- 
tion of  a  building  may,  in  the  absence  of 
the  other  members,  lawfully  act  in  letting 
the  contract.  McNeil  v.  Boston  Chamber  of 
Commerce,  154  Mass.  277,  28  N.  E.  245, 

13:  559 
3.  Compensation. 

Of  Promoters,  see  infra,  335-341. 

Of  Trustee  Acting  as  President,  see  Trusts, 
172. 

Parol  Evidence  as  to  Fixing,  see  Evidence, 
1226. 

Evidence  as  to  Corporate  Existence,  see  Evi- 
dence, 2179. 

See  also  infra,  269-272,  276,  282,  487. 

For  Editorial  Notes,  see  infra,  VIII.  §  50. 

249.  Electing  one  president  of  a  corpora- 
tion, who,  after  the  expiration  of  a  con- 
entitle  him  to  a  salary  for  any  specified 
time.  Busell  Trimmer  Co.  v.  Coburn,  188 
Mass.  254,  74  N.  E.  334,  69:  821 

250.  A  unanimous  vote  of  the  directors 
allowing  the  president  of  the  corporation  to 
draw  $100  per  month  in  addition  to  his  sal- 
ary, to  be  used  "for  all  special  purposes"  in 
connection  with  sales  in  its  business,  will 
not  be  assumed  to  be  for  an  unlawful  pur- 
pose. Clark  V.  American  Coal  Co.  86  Iowa, 
436,  53  N.  W.  291,  17:557 

251.  For  services  of  a  director  clearly  out- 
side of  his  duties  as  such,  and  in  pursuance 
of  an  express  contract  made  in  good  faith, 
he  is  entitled  to  compensation  if  the  serv- 
ices are  such  as  the  company  may  legally 
contract  for.  Brown  v.  Republican  Moun- 
tain Silver  Mines,  17  Colo.  421,  30  Pac.  66, 

16:  426 

252.  The  general  manager  of  a  corpora- 
tion, who,  after  the  expiration  of  a  con- 
tract fixing  his  salary  at  $5,000  per  year, 
continues  in  the  same  employment,  without 
any  new  agreement,  and  afterwards  volun- 
tarily reduces  his  salary  to  $3,000  per  year, 
drawing  it  from  month  to  month  thereafter 
bn  that  basis  for  many  years,  until  he  gives 
up  the  office,  cannot  subsequently  recover 
the  balance  of  the  $5,000  per  annum  at 
which  the  salary  was  originally  fixed. 
Home  F.  Ins.  Co.  v.  Barber,  67  Neb.  644,  93 
N.  W.  1024,  60:  927 
After  close  of  term  of  service. 

253.  The  right  of  officers  of  a  corporation 
to  their  salaries  is  terminated,  although 
their  term  of  office  has  not  expired,  by  the 
appointment  of  a  receiver  for  the  company 
on  account  of  its  insolvency,  since  the  ap- 
pointment of  the  receiver  operates  as  a  dis- 
solution of  any  contract  between  the  parties 
for  such  services  by  the  sovereign  power 
of  the  state.  Lenoir  v.  Linville  Improv.  Co. 
126  N.  C.  922,  36  S.  E.  185,  51 :  146 

254.  A  by-law  of  a  corporation  providing 
for  the  removal  of  officers  by  the  board  of 
directors  at  pleasure  constitutes  part  of  the 
contract  of  employment  of  a  secretary  at  a 
designated  yearly  salary,  with  no  special 
agreement  as  to  the  time  of  service.  Doug- 
lass V.  Merchants  Ins.  Co.  118  N.  Y.  484,  23 
N.  E.  806,  7:  822 


762 


CORPORATIONS,  IV.  g,  4. 


In  absence  of  express  contract  or  provision. 

255.  One  claiming  to  be  president  of  a 
corporation  under  an  election  by  a  body 
claiming  to  be  the  board  of  directors,  but 
which  is  not  even  a  de  facto  board,  cannot 
recover  the  salary  of  such  officer  although 
for  about  two  years  he  has  performed  some 
acts  as  president,  where  during  all  such 
time  his  right  was  in  dispute,  and,  except 
for  a  few  days,  a  receiver  was  in  possession 
of  the  corporate  property.  Waterman  v. 
Chicago  &  I.  R.  Co.  139  111.  658,  29  N.  E.  689, 

15:418 

256.  Neither  the  president  nor  the  other 
officers  of  a  corporation  are  entitled  to  any 
compensation  for  official  services  on  an  im- 
plied promise,  in  the  absence  of  any  by- 
law or  resolution  of  the  directors  allowing 
such  compensation.  Crumli&h  v.  Central 
Improv.  Co.  38  W.  Va.  390,  18  S.  E.  456, 

23:  120 

257.  Directors  of  a  corporation  are  not 
entitled  to  compensation  for  their  services 
as  such  unless  it  is  provided  for  or  expressly 
sanctioned  by  the  charter.  Brown  v.  Re- 
publican Mountain  Silver  Mine,  17  Colo.  421, 
30  Pac.  66,  16:  426 

258.  The  director  of  a  corporation,  who 
performs  services  for  the  corporation  at  the 
request  of  the  board  of  directors,  is  entitled 
to  recover  on  an  implied  promise  to  pay 
what  the  services  are  reasonably  worth,  so 
far  as  the  amount  has  not  been  fixed  by  the 
resolution  of  the  board.  Ten  Eyck  v. 
Pontiac,  O.  &  P.  A.  R.  Co.  74  Mich.  226,  41 
N.  W.  905,  3:378 

259.  The  general  manager  of  a  corpora- 
tion, who  is  also  a  director,  has  a  legal 
claim  for  the  value  of  his  services,  although 
there  has  been  no  resolution  of  the  board  of 
directors  and  no  express  contract  fixing  his 
compensation,  where  he  devotes  his  entire 
time  to  the  business,  and  his  duties  are 
numerous  and  onerous  and  not  such  as  per- 
tain to  his  office  as  director.  Bassett  v. 
Fairchild,  132  Cal.  637,  61  Pac.  791,  64  Pac. 
1082,  52:  6U 

260.  Directors  who  performed  extraordi- 
nary services  at  a  very  large  expense  of 
both  time  and  money,  by  which  they  saved 
the  corporation  from  bankruptcy  by  negoti- 
ating a  contract  for  the  sale  of  its  property 
at  a  large  price,  after  a  committee  appoint- 
ed to  negotiate  a  sale  had  failed  to  do  so, 
and  at  a  time  when  the  corporation  was 
without  means  to  employ  agents  and  could 
not  pay  necessary  traveling  expenses, — may 
be  paid  a  reasonable  compensation  voted 
them  by  a  majority  of  a  quorum  of  stock- 
holders after  the  services  have  been  in  large 
part  performed,  although  they  engaged 
therein  without  any  contract  for  compensa- 
tion, where  they  did  so  because  they  deemed 
it  improper  to  make  such  a  contract  with 
themselves,  and  because  it  would  have  en- 
dantrered  the  success  of  their  negotiations 
to  have  called  a  meeting  of  thfe  stockholders 
at  that  time.  Uuffaker  v.  Germania  Safety 
Vault  &  T.  Co.  107  Ky.  200.  53  S.  W.  288, 

46:  384 

261.  The  fact  that  a  person  entering  into 
an   executory   contract   with   a    corporation. 


necessitating  in  its  execution  the  expendi- 
ture of  money  and  labor,  is  a  director  of  the 
corporation,  does  not  affect  his  right,  upon 
the  termination  of  the  contract  by  the  in- 
solvency and  dissolution  of  the  corporation, 
to  compensation  for  services  rendered,  and 
to  reimbursement  for  expenses  incurred, 
under  the  contract,  where  the  contract  was 
entered  into  openly,  without  fraud,  and  the 
other  directors  and  the  stockholders  were 
fully  informed  of  its  terms,  and  permitted 
it  to  be  partly  executed  without  disapprov- 
al. Griffith  v.  Blackwater  Boom  &  L.  Co. 
55  W.  Va.  604,  48  S.  E.  442,  69:  124 

Accounting  for  salary  illegally  received. 

262.  Officers  of  a  corporation  may  be  com- 
pelled to  account  for  all  sums  withdrawn 
for  salaries,  with  interest  thereon,  where 
they  have  voted  and  paid  them  partly  and 
largely  for  the  purpose  of  depriving  stock- 
holders of  the  results  of  a  litigation  in  case 
they  are  successful,  although  they  are  paid 
nominally  and  partly  for  services  rendered 
to  the  company.  Eaton  v.  Robinson,  19  R. 
I.  146,  31  Atl.  1058,  29:  100 

4.  Fiduciary  Relation. 

Fiduciary  Relation  of  Stockholder,  see 
infra,  464,  479,  493. 

Presumption  as  to,  see  Evidence,  368. 

Evidence  of  Fraud  in  Foreclosure,  see  Evi- 
dence,  1794. 

See  also  supra,  261 ;  infra,  282,  493-495,  640, 
643,  668,  669. 

For  Editorial  Notes,  see  infra,  VIII.  §§  12, 
18. 

263.  The  managing  officers  of  a  corpora- 
tion are  not  only  trustees  of  the  corporate 
entity  and  the  corporate  property,  but  they 
are  also,  to 'some  extent  and  in  many  re- 
spects, trustees  for  the  corporate  sharehold* 
ers.  Stewart  v.  Harris,  09  Kan.  498,  77 
Pac.  277,  66:  261 

264.  The  directors  of  a  corporation  are 
trustees  for  its  stockholders.  When  the 
corporation  becomes  insolvent  the  directors 
become  trustees  for  the  corporation  credit- 
ors. Olnev  V.  Conanicut  Land  Co.  16  R.  I. 
597,  18  Atl.  181,  o:  361 

265.  Stockholders  who  undertake  to  dis- 
charge the  functions  of  directors  and  con- 
duct the  affairs  of  the  corporation  become 
subject  to  the  same  trust  relation  which 
precludes  directors  from  contracting  with 
themselves  to  the  detriment  of  the  corpo- 
ration. Crichton  v.  Webb  Press  Co.  113  La. 
167,  36  So.  926.  ^  67:  76 
Officer  dealing  individually  with  corpo- 
ration. 

See  also  supra,  2(il. 

For  Editorial  Notes,  see  infra,  VIII.  §  12. 

266.  The  majority  of  a  quorum  of  the 
board  of  directors  of  a  corporation  must  be 
disinterested  in  respect  to  the  matters  voted 
upon.  !Miner  v.  Belle  Isle  Ice  Co.  93  Mich. 
07,  53  X.  W.  218.  17:412 

267.  Directors  cannot  lawfully  enter  into 
a  contract  in  the  benefit  of  which  even  one 
of  their  numl)cr  participates*  without  the 
knowledge  and  consent  of  the  stockholders. 


CORPORATIONS  IV.  g,  6. 


763 


Hodge  V.  United  States  Steel  Corp.  (X.  J. 
Err.  &  App.)  64  N.  J.  Eq.  807,  54  Atl.  1, 

60:  742 

268.  Trustees  or  directors  of  a  going  cor- 
poration are  not  by  virtue  of  their  office 
precluded  from  buying  bonds  or  other  law- 
ful obligations  of  the  company  at  a  dis- 
count, with  the  right  to  enforce  them 
against  the  company  for  their  full  amount. 
Seymour  v.  Spring  Forest  Cemetery  Asso. 
144  N.  Y.  333,  39  N.  E.  365,  26:  859 

269.  A  director's  vote  for  his  own  salary 
will  not  render  the  proceedings  void,  where 
the  result  would  have  been  the  same  if  he 
liad  not  voted.  Clark  v.  American  Coal  Co. 
86  Iowa,  436,  53  N.  W.  291,  17:  557 

270.  Contracts  fixing  salaries  of  corporate 
officers  and  rentals  for  property  Jeased  from 
its  president  are  absolutely  void,"*  where  he 
and  those  who  are  merely  his  dummies,  and 
are  furnished  by  him  with  stock  for  that 
purpose,  constitute  a  board  of  directors. 
Miner  v.  Belle  Isle  Ice  Co.  93  Mich.  97,  53 
N.  W.  218,  17:  412 

271.  Equity  will  not  permit  the  members 
of  a  corporation,  whether  as  directors  or  as 
stockholders,  to  vote  to  themselves  the 
money  of  the  corporation  over  the  protest 
of  their  associates.  Crichton  v.  Webb  Press 
Co.  113  La.  167,  36  So.  926,  67:  76 

272.  Where  the  same  five  persons  compose 
both  the  directorate  and  the  body  of  the 
stockholders  of  a  corporation,  two  of  these 
persons  cannot,  by  joining  with  a  third, 
enter  into  contracts  with  the  corporation,  or 
fix  their  own  salaries,  or  vote  allowances  to 
themselves,  over  the  protest  of  their  two 
other   associates.  Id. 

273.  A  ratification  of  his  o\fn  act  by  a 
majority  stockholder  and  his  dummies,  who 
constitute  the  board  of  directors,  cannot 
purge  it  of  its  fraudulent  character.  Miner 
v.  Belle  Isle  Ice  Co.  93  Mich.  97,  53  N.  W. 
218,  17:412 

274.  A  contract  by  corporate  directors,  in 
the  benefit  of  which  one  of  their  number 
participated,  is  voidable  only,  and  not  void 
per  se,  and  may  be  subsequently  ratified  by 
the  stockholders  when  the  facts  are  dis- 
closed to  them.  Hodge  v.  United  States 
Steel  Corp.  (N.  J.  Err.  &  App.)  64  N.  J. 
Eq.  807,  54  Atl.  1,  60:  742 

275.  A  purchase  of  the  property  of  a  cor- 
poration, in  good  faith,  by  directors  who 
have  interests  to  protect,  at  a  public  sale 
by  an  assignee  or  receiver  of  the  property, 
made  by  order  of  the  court  and  subject  to 
its  approval,  is  not  invalid  on  account  of 
their  fiduciary  capacity^  but  the  transac- 
tion will  be  jealously  scrutinized.  Janney 
V.  Minneapolis  Industrial  Exposition,  79 
Minn.  488,  82  N.  W.  984,  50:  273 

276.  A  sale,  by  an  officer  of  a  corpora- 
tion, of  stock  therein,  nominally  made  to 
other  officers,  but  in  reality  made,  as  he 
knew,  to  the  corporation  itself,  and  paid  for, 
as  he  knew,  out  of  the  assets  of  the  com- 
pany, is  void  as  against  its  creditors,  as  a 
gift  to  him  of  the  company's  assets,  wheth- 
er it  is  insolvent  or  not.  Hall  v.  Hender- 
son, 126  Ala.  449,  28  So.  531,  61:  621 

277.  Settlement  with  the  treasurer  by  a 


board  of  directors  of  a  corporation  is  not  in- 
valid because  the  treasurer  is  a  member  of 
the  board.  Troy  Mining  Co.  v.  White,  10  S. 
D.  475,  74  N.  W.  236,  42:549 

Officer  purchasing  stock  from  shareholder. 

278.  A  director  or  managing  officer  of  a 
corporation  having  a  knowledge  of  the  con- 
dition of  the  affairs  of  such  corporation,  be- 
cause of  the  trust  relation  and  the  superior 
opportunities  afforded  for  acquiring  infor- 
mation, must,  before  he  can  rightfully  pur- 
chase the  stock  of  one  not  actively  engaged 
iu  the  management  of  its  affairs,  inform 
such  stockholder  of  the  true  condition  of 
the  affairs  of  the  corporation.  Stewart  v. 
Harris,  69  Kan.  498,  77  Pac.  277,  66:  261 
Dealings   between   corporations   with   same 

officers. 
See  also  supra,  187. 
For  Editorial  Notes,  see  infra,  VIII.  §  12. 

279.  The  same  person  may  fill  the  office 
of  president  of  two  distinct  corporations, 
and  such  identity  does  not  of  itself  in- 
validate dealings  between  the  two  corpo- 
rations. Leathers  v.  Janney,  41  La.  Ann. 
1120,  6  So.  884,  6:  661 

280.  The  fact  that  some  or  a  majority  of 
the  directors  of  two  corporations  are  com- 
mon to  both  does  not  make  a  contract  be- 
tween the  companies  absolutely  void,  or  pre- 
vent its  ratification.  San  Diego,  O.  T.  &  P. 
B.  R.  Co.  V.  Pacific  Beach  Co.  112  Cal.  53,  44 
Pac.  333,  33:  788 

5.  Liabilities." 

a.  To  Stockholders  or  Creditors. 

(1)  In   General. 

Action  by  Corporate   Stockholders  against, 

see  infra,  V.  e,  2. 
Liability  of  Promoters,  see  infra,  332-334, 

349. 
Joining  Causes  of  Action  against  Directors, 

see  Action  or  Suit,  95. 
Officers  of  Bank,  see  Banks,  55-66,  382,  383. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

168. 
For      Fraudulently     Dissolving     Insurance 

Company,  see  Insurance,  72. 
Conclusiveness    of    Judgment    as    to,     see 

Judgment,  227. 
Limitation  of  Action  against,  see  Limita- 
tion of  Actions,  55. 
Running   of   Limitations    in    Favor   of,    see 

Limitation  of  Actions,  68    69. 
Interruption  of  Running  of  Limitations  as 

to,  see  Limitation  of  Actions,  230. 
Liability   to   Penalty    for   Injury    Affecting 

Public,  see  Penalties,  8. 
Discharge    of    Director    from    Liability    on 

Mortgage,  see  Principal  and  Surety,  39. 
See  also  supra.  262. 
For  Editorial  Notes,  see  infra,  VIII.  §§  17, 

18. 

281.  Directors  of  a  corporation  are 
charged  with  the .  duties  of  trustees,  and 
bound  to  care  for  its  property  and  manage 
its  affairs  in  good  faith;  and  for  violation 
of  that  duty,  resulting  in  waste  of  its  as- 
sets,   injury    to    its    property,   or    unlawful 


764 


CORPORATIONS,  IV.  g,  6. 


gain  to  themselves,  they  are  liable  to  ac- 
count in  equity  the  same  as  ordinary  trus- 
tees. Bosworth  V.  Allen,  168  N.  Y.  157,  61 
N.  E.  163,  55:  751 

282.  In  a  suit  to  hold  directors  of  a  cor- 
poration liable  for  money  paid  to  one  of 
their  number  for  services  under  a  resolu- 
tion invalid  because  passed  at  a  meeting 
at  which  his  presence  was  necessary  to  con- 
stitute a  quorum,  they  should  be  credited 
with  an  amount  equal  to  what  the  services 
are  reasonably  worth.  Bassett  v.  Fair- 
child,  132  Cal.  637,  61  Pac.  791,  64  Pac.  1082, 

52:  611 

283.  The  officers  of  an  insurance  company 
which  has  no  stock  are  wrongdoers  in  ac- 
cepting money  which  they  appropriate  to 
their  own  use  to  substitute  the  officers  of 
another  company  in  their  places,  with  a 
view  of  transferring  the  business  of  the 
company  to  the  other  one.  Gilbert  v. 
Finch,  173  N.  Y.  455,  66  N.  E.  133,    61 :  807 

284.  The  application  of  the  funds  of  an 
insurance  company,  by  its  directors,  to  the 
purchase  of  the  interest  of  the  incorporators 
of  another  company,  with  a  view  of  trans- 
ferring its  business  to  their  own,  is  a  waste 
of  funds  which  will  render  the  directors 
personally  liable  in  damages  to  a  subse- 
quently appointed  receiver  of  their  com- 
pany, when  the  other  company  has  no  stock, 
and  therefore  nothing  to  transfer,  so  that 
all  that  is  accomplished  is  a  substitution 
of  the  purchasing  directors  as  officers  in  the 
other   company.  Id. 

285.  That  the  affairs  of  a  coi'poration 
have  been  placed  in  the  hands  of  a  receiver 
neither  takes  away  nor  suspends  the  right 
of  action,  under  the  Minnesota  statute,  by 
a  creditor  against  the  directors  who  as- 
sented to  a  violation  of  law  by  the  corpo- 
ration. Patterson  v.  Minnesota  Mfg.  Co. 
41  Minn.  84,  42  N.  W.  926,  4:  745 
Engaging  in  ultra  vires  business. 

See  also  infra,  302. 

286.  An  officer  of  a  corporation  is  not 
liable  to  it  for  damages  caused  by  his  mere 
error  of  judgment,  although  in  a  business 
which  was  ttltra  vires,  but  which  the  corpo- 
ration was  actually  carrving  on.  Holmes, 
B.  &  H.  v.  Willard,  125  K  Y.  75.  25  N.  E. 
1083,  11:170 

287.  Individual  liability  of  the  officers  of 
a  corporation  upon  contracts  made  in  a 
business  conducted  by  them  on  behalf  of 
the  corporation  does  not  necessarily  follow 
from  the  mere  fact  that  such  business  is 
beyond  the  power  of  the  corporation  to  en- 
gage in.  Leinkauf  v.  Lombard,  137  N.  Y". 
417,  33  N.  E.  472,  20:48 

288.  The  loose,  defective,  or  irregular  way 
in  which  the  business  of  a  corporation  is 
conducted  by  its  managers,  who  engage  the 
corporation  in  more  or  less  independent 
enterprises  without  much,  if  any,  regard  to 
its  charter  powers,  and  without  going 
through  the  form  of  putting  their  acts  in 
official  guise,  or  seeking  corporate  sanction, 
will  not  make  the  contracts  which  are  made 
in  the  corporate  business  their  individual 
agreements.  Id. 


Assent  to  acts  causing  insolvency. 

289.  To  constitute  "assent"  to  acts  in 
violation  of  law,  by  the  directors  of  a  cor- 
poration, under  the  Minnesota  statute  giv- 
ing creditors  of  the  corporation  a  right  of 
action  against  such  assenting  directors 
where  their  acts  shall  cause  insolvency, 
there  must  be  something  more  than  mere 
negligence  on  the  part  of  a  director  in  not 
knowing  what,  in  the  exercise  of  proper 
care,  he  ought  to  have  known.  There  must 
be  some  wilful  or  intentional  violation  of 
duty,  ordering  the  act  done  or  assenting  to 
it,  knowing  that  the  act  is  being,  or  about 
to  be,  done.  But  if,  with  such  knowledge, 
he  neither  objects  to  nor  opposes  it  when 
his  duty  requires  and  when  he  has  the 
opportunity  of  doing  so,  this  is  "assent." 
Patterson  v.  Minnesota  Mfg.  Co.  41  Minn. 
84,  42  N.  W.  926,  4:  745 

290.  Under  the  Minnesota  statute  relat- 
ing to  the  liability  of  directors  assenting  to 
a  violation  of  the  law  by  the  corporation, 
causing  its  insolvency,  a  creditor  of  the  cor- 
poration may  sue  one  or  more  of  the  direct- 
ors to  enforce  the  liability  without  joining 
all  the  creditors  to  whom  they  are  liable, 
or  all  the  directors  subject  to  the  liability. 

Id. 

291.  If  a  series  of  acts,  or  a  continuous 
course  of  conduct,  on  the  part  of  the  direct- 
ors of  a  corporation,  in  violation  of  *  the 
Minnesota  statute;  finally  producing  the  in- 
solvency of  the  corporation,  is  begun  be- 
fore the  debt  of  a  creditor  is  contracted, 
the  debt  is  one  contracted  "after  such 
violation,"  although  the  series  of  acts  or 
course  of  conduct  is  not  completed,  or  the 
insolvency  of  the  corporation  consummated, 
until  afterwards;  and  the  creditor  has  a 
right  of  action  against  the  directors  assent- 
ing to  such  unlawful  conduct,  under  Minn. 
Gen.   Stat.  chap.  34,   §    142.  Id. 

292.  It  is  not  necessary  to  an  action  under 
the  Minnesota  statute  by  creditors  of  a  cor- 
poration against  directors  who'  have  assent- 
ed to  a  violation  of  the  law,  causing  in- 
solvency, that  the  creditors  shall  first  ob- 
tain judgment  against  the  corporation,  but 
they  may  join  it  in  the  same  action  with 
the  directors.  Id. 
For  dividends  paid. 

293.  Dividends  paid  by  the  directors  of  a 
cornoration  when  it  is  realizing  a  net  profit 
on  its  business,  and  when  the  assets  as 
honestly  estimated  by  them  exceed  its  lia- 
bilities, will  not  render  them  individually 
liable  under  a  charter  imposing  such  liabil- 
ity for  dividends  paid  when  the  company  is 
insolvent,  although  the  assets  prove  to  have 
been  largely  overestimated  and  the  com- 
pany in  fact  insolvent.  Tradesman  Pub. 
Co.  V.  Knoxville  Car-Wheel  Co.  95  Tenn.  634, 
32  S.  W.  1097,  31 :  593 
For  false  representations  as  to  stock. 

See  also  supra,  278;  Fraud  and  Deceit,  70. 

294.  Officers  of  a  corporation  who  sign 
and  issue  certificates  of  its  stock  in  the 
usual  form,  stating  upon  their  faces  that 
the  corporation  is  incorporated  according  to 
the  laws  of  a  particular  state,  and  that  the 
stock    is    nonassessable,    thereby    represent 


CORPORATIONS,  IV.  g.  5. 


765 


that  the  stock  is  not  spurioua  or  invalid  be- 
cause of  their  known  acts  or  omissions,  and 
also  that  everything  has  been  done  which  is 
necessary  to  make  the  stock  rightfully  ex- 
empt from  further  assessment;  and,  if  such 
representations  are  false,  the  officers  will 
be  liable  in  damages  to  one  who  has  taken 
the  certificates  in  good  faith  and  for  value, 
relying  upon  the  representations.  Windram 
V.  French,  151  Mass.  547,  24  N.  E.  914,  8:  750 
On  promissory  notes. 
Parol  Evidence  as  to,  see  Evidence,   1167- 

1172. 
Personal    Liability   of  Personal    Represent- 
ative,   see      E.xecutors    and    Adminis- 
trators, 81-83. 
See  also  infra,  302. 
For  Editorial  Notes,  see  infra,  VHJ.  §  17. 

295.  A  promissory  note  purporting  to  be 
that  of  a  corporation,  signed  by  a  certain 
person  as  president,  the  promise  to  pay 
being  plural  instead  of  singular,  is  not 
ambiguous  on  its  face,  although  the  word 
"by,"  or  its  equivalent,  is  not  used  between 
the  name  of  the  corporation  and  the  person 
signing.  Liebscher  v.  Kraus,  74  Wis.  387, 
43  N.  W.  166,  5:496 

296.  A  note  in  which  "the  directors  of  the 
Jonesville  &  Glencoe  Turnpike  Road  prom- 
ise to  pay,"  etc.,  with  the  names  of  individ- 
uals, withoiit  any  official  designation,  signed 
thereto,  and  which  does  not  show  that  the 
president  of  the  company  united  in  its  exe- 
cution, must  be  regarded  upon  its  face  as 
the  undertaking  of  the  parties  whose  names 
appear  to  it  as  obligors.  McKensey  v.  Ed- 
wards, 88  Ky.  272,  10  S.  W.  815,  3:  397 

297.  A  note  reciting  that  "we  promise  to 
pay,"  and  signed  with  the  name  of  a  corpo- 
ration and  also  by  certain  persons  as  presi- 
dent and  secretary  respectively,  binds  such 
persons  individually;  and  a  different  intent 
cannot  be  shown  by  parol.  McCandless  v. 
Belle  Plaine  Canning  Co.  78  Iowa,  161,  42 
N.  W.  635,  4:396 

298.  The  use  of  the  words  "we  promise 
to  pay,"  in  the  body  of  a  note  signed  in  the 
name  of  a  corporation,  followed  by  the  name 
of  its  president,  does  not  show  that  it  is  his 
individual  note,  or  the  joint  note  of  himself 
and  the  corporation.  Reeve  v.  First  Nat. 
Bank  (N.  J.  Err.  &  App.)  54  N.  J.  L.  208,  23 
Atl.  853,  16:  143 

299.  A  note  signed  by  a  corporate  name 
under  which  appears  the  name  of  an  officer 
of  the  company,  with  his  corporate  official 
title  affixed  thereto,  is  taken  conclusively  to 
be  that  of  the  corporation,  where  nothing 
appears  in  the  body  of  the  note  to  indicate 
the  maker.  Id. 

300.  A  promissory  note  saying,  "We 
promise  to  pay,"  but  naming  no  maker  in 
the  body  of  it,  and  having  for  signature  the 
written  words  "John  Roach,  Treasurer," 
over  which  is  stamped  into  the  paper  a 
large  round  seal  bearing  the  name  of  a  cor- 
poration,— is  the  note  of  the  corporation, 
and  not  the  individual  obligation  of  the 
treasurer.  Miller  v.  Roach,  ioO  Mass.  140, 
22  N.  E.  634,  6:  71 

301.  Directors  of  a  corporation  incur  a 
personal    liability    to    it    by    voting    for    a 


resolution  which  they  have  no  power,  ex- 
press or  implied,  to  pass,  authorizing  the 
issue  and  negotiation  of  notes  of  the  cor- 
poration, which  are  in  effect  void,  where 
such  notes  are  issued  and  come  into  the 
hands  of  bona  fide  purchasers  for  value. 
Metropolitan  Elev.  R.  Co.  v.  Kneeland,  120 
N.  Y.  134,  24  N.  E.  381,  8:  253 

302.  Ultra  vires  acts  of  directors  in  exe- 
cuting accommodation  paper  in  the  name  of 
the  corporation,  or  in  lending  its  funds  to 
others,  constitute  a  violation  of  the  Min- 
nesota statute  "by  the  corporation,"  so  as 
to  give  creditors,  after  insolvency  of  the 
corporation,  a  right  of  action  against  the 
directors  committing  such  ultra  vires  acts. 
Patterson  v.  Minnesota  Mfg.  Co.  41  Minn. 
84,  42  N.  W.  926,  4:  745 

(2)  For  Failure  to  Report. 

For  Omission  from  Report,  see  Fraud  and 

Deceit,  71. 
Limitation  of  Action  as  to,  see  Limitation 

of  Actions,  194,  276. 
See  also  infra,  699,  700. 

303.  Trustees  of  a  corporation  are  not 
personally  liable  for  its  debts  on  the  ground 
of  failure  to  file  the  report  required  by 
statute,  merely  because  the  acting  trustees 
who  signed  it,  and  who  were  a  majority  of 
those  actually  elected,  and  of  the  number 
fixed  upon  by  a  resolution  reducing  the 
original  number,  were  not  a  majority  of  the 
original  number,  and  the  certificate  of  the 
fact  of  such  reduction  of  the  number  had 
not  been  filed  as  required  by  statute.  Wal- 
lace V.  Walsh,  125  N.  Y.  26,  25  N.  E.  1076, 

11:  166 

304.  A  report  certified  bj'  a  majority  of 
the  board  of  trustees,  who  were  in  fact 
authorized  by  the  corporation  and  had  pos- 
session of  its  property  and  franchises  and 
undisputed  control  in  the  management  of 
its  affairs,  and  which  was  verified  by  the 
president  of  the  board,  and  filed  and  pub- 
lished within  the  time  limited  by  statute, 
is  sufficient.  Id. 

305.  Failure  by  directors  of  a  corporation 
to  file  the  annual  report  of  its  assets,  liabil- 
ities, etc.,  required  by  N.  Y.  Law*  1875, 
chap.  611,  §  18,  will  not  render  them  per- 
sonally liable  for  a  contingent  liability  of 
the  corporation  under  an  executory  contract, 
which  does  not  become  an  existing  debt 
until  after  the  corporation  has  expired  by 
the  terms  of  its  articles  of  incorporation. 
Gold  v.  Clyne,  134  N.  Y.  262,  31  N.  E.  980, 

17:767 

306.  A  statutory  provision  that  the  dis- 
solution of  a  corporation  shall  not  take 
away  or  impair  any  remedy  against  its  of- 
ficers for  any  liability  incurred  previous  to 
its  dissolution  will  not  justify  a  personal 
action  against  directors  who  have  failed  to 
file  the  required  statement  of  assets,  liabil- 
ities, etc.,  to  collect  a  contract  debt  of  the 
corporation  which  did  not  mature  until  after 
the  corporation  had  expired  by  the  terms  of 
its  incorporation.  Id. 

.307.  The  filing  bv  the  former  directors  of 


766 


CORPORATIONS,  iV.  g,  5. 


a  corporation,  of  an  annual  report  after  tiie 
corporation  has  expired  by  the  terms  of  its 
incorporation,  will  not,  as  matter  of  law, 
raise  any  presumption  that  proceedings 
have  been  taken  for  extending  its  life.       Id. 

(3)  For  Excess  of  Indebtedness. 

See  also  supra,  322-324. 

308.  Consent  to  the  creation  of  indebted- 
ness of  a  corporation  in  excess  of  its  assets, 
which  will  make  directors  individually  li- 
able therefor  under  a  statute  imposing  such 
liability,  must  be  given  in  their  capacity  as 
directors.  Tradesman  Pub.  Co.  v.  Knoxville 
Car-Wheel  Co.  95  Tenn.  634,  32  S.  W.  1097, 

31:  593 

309.  The  term  "indebtedness,"  in  the  char- 
ter of  a  corporation  making  directors  li- 
able personally  for  indebtedness  in  excess 
of  capital  stock  paid  in,  includes  bonded 
indebtedness.  Id. 

310.  The  term  "capital  stock  paid  in,"  in 
the  charter  of  a  corporation  making  direct- 
ors liable  for  debts  in  excess  of  such  stock, 
means  the  amount  subscribed  by  the  stock- 
holders, and  not  the  total  value  of  the  as- 
sets. Id. 

311.  Although  the  directors'  liability  for 
indebtedness  of  a  corporation  in  excess  of 
the  capital  stock  is  available  only  in  favor 
of  creditors  whose  debts  were  illegally  con- 
tracted, yet  it  cannot  be  enforced  by  each 
creditor  individually,  but  must  be  enforced 
by  a  bill  filed  for  the  benefit  of  all  creditors 
similarly  situated.  Id. 
For  obligation  incurred  before  stock  sub- 
scribed. 

See  also  supra,  323. 

312.  Persons  acting  as  directors  of  a  cor- 
poration when  less  than  the  necessary 
amount  of  stock  has  been  subscribed,  and 
thev  are  without  authority  to  create  any 
corporate  obligation,  become  personally 
liable  though  acting  in  good  faith.  Farm- 
ers' Co-Op.  T.  Co.  V.  Floyd,  47  Ohio  St.  525. 
26  N.  E.  110,  12:346 

b.  For  Torts  or  Nuisances. 

Joint   Liability  of   Corporation   and   Agent 

for    Death,    see    Joint    Creditors    and 

Debtors,  3. 
Joinder    of    Corporation    and    Officers,  •  see 

Parties,  193. 
Alleging     Liability     of     Corporation,      see 

Pleading,  243." 
See  also  Nuisances,  107. 
For  Editorial  Notes,  see  infra,  VITI.  §  17. 

313.  The  manager  of  a  corporation  in 
charge  of  its  work  in  constructing  a  build- 
ing is  personally  liable  for  negligent  failure 
to  erect  a  scaffold  which  is  needed  to  pro- 
tect persons  near  the  walls.  Maver  v. 
Thompson-Hutchison  Bldg.  Co.  104  Ala.  611. 
16  So.  620,  28:  4.33 

314.  An  officer  who  is  the  general  manag- 
ing agent  of  a  lumber  compajiy  may  be  helfl 
personally  liable  for  setting  an  inexperi- 
enced and  iirnorant  employee  at  work  on  a 
machine  which  the  former  knows  to  be  dan 


gerous.     Greenberg    v.    Whitcomb    Lumber 
Co.  90  Wis.  225,  63  N.  W.  93,  28:  439 

315.  The  liability  of  a  director  of  a  cor- 
poration in  tort  is  not  to  be  avoided  by  his 
vicarious  character,  where  a  tort  of  the 
corporation  has  been  committed  through  the 
directors.  Cameron  v.  Kenyon-Connell  Com- 
mercial Co.  22  Mont.  312.  56  Pac.  358, 

44:  508 

316.  It  is  the  duty  of  the  directors  of  a 
corporation  dealing  in  explosives  to  exer- 
cise such  reasonable  supervision  over  the 
management  of  their  company's  business  as 
will  result  in  the  observance  of  the  utmost 
care  on  the  part  of  the  subordinates  who  di- 
rect or  handle  the  explosives.  Id. 

317.  The  liability  of  the  officers  of  a  cor- 
poration for  negligence  in  storing  giant 
powder  in  violation  of  law  depends  upon 
their  exercise  of  reasonable  diligence  in  the 
control  and  supervision  of  the  business.    Id. 

318.  It  is  the  duty  of  the  directors  of  a 
corporation  to  avoid  the  creation  of  nui- 
sances by  their  corporation  through  its  em- 
ployees acting  within  the  line  of  their 
duties.  Id. 

319.  A  director  who  knows  nothing  of  a 
nuisance  maintained  by  the  corporation,  and 
who  could  not,  by  exercising  ordinary  dili- 
gence in  control,  have  known  of  it,  or  who 
has  performed  his  duty  of  taking  care,  is 
not  personally  responsible  for  the  nuisance. 

Id. 

320.  Nonexecution  of  the  duty  of  direct- 
ors, which  results  in  the  positive  act  of 
a  creation  and  maintenance  of  a  continuing 
nuisance  by  the  corporation,  on  account  of 
which  a  third  person  is  killed,  amounts,  un- 
less explained,  to  a  misfeasance  on  their 
part,  or,  if  they  have  actual  knowledge  of 
and  authorize  the  nuisance,  to  malfeasance, 
and  is  not  merely  a  nonfeasance  for  which 
the  liability  can  be  limited  to  the  corpo- 
ration only.  Id. 

321.  The  president  and  general  manager 
of  a  corporation  are  personally  liable  for 
damages  caused  to  a  riparian  proprietor  by 
the  long-continued  discharge  of  muddy 
water  into  a  stream  from  ore  washers  oper- 
ated by  the  company  with  their  "sanction 
and  their  knowledge  of  the  damage  caused 
thereby.  Nunnelly  v.  Southern  Iron  Co. 
94  Tenn.  397,  29  S.  W.  361,  28:  421 
Liability  for  tort  as  a  "debt  contracted." 

322.  An  excess  of  indebtedness  for  which 
directors  of  a  corporation  can  be  held  liable, 
under  R.  T.  Pub.  Stat.  ohap.  155,  §  15,  can- 
not include  any  claim  or  debt  not  existing 
before  the  excess,  unless  contracted  or 
voluntarily  incurred,  and  therefore  cannot 
include  a  judgment  for  a  tort.  Leighton  v. 
Carapbell,17  R.  L  51,  20  Atl.  14,  9i  187 

323.  "Debts  contracted"  before  recordine 
a  certificate  for  the  payment  of  stock,  for 
which  directors  are  liable  under  a  statute, 
do  not  include  unlinuidated  claims  for  dam- 
ages arising  ex  delicto.  Id. 

324.  A  iudffment  in  tort  is  not  a  "debt 
contracted."  for  which  directors  of  a  cor- 
poration are  liable  under  R.  T.  Pub.  Stat, 
ciiap.   155.  §§  3.  4.  Id. 


CORPORATIONS,  IV.  g,  6,  h. 


767 


6.  Meetings. 

Vote  of  Directors  ih  Their  Own  Interest,  see 

supra,  IV.  g,  4. 
As  to  Stockholders'  Meeting,  see  infra,  V.  g. 
Presumption  as  to,  see  E\'idence,  408. 
Parol  Evidence  of  Adoption   of  Resolution, 

see  Evidence,  767. 
See  also  supra,  215. 

Place  of. 

325.  The  office  of  the  president  or  secre- 
tary of  a  corporation  will  be  presumed  to 
be  a  proper  place  for  holding  a  meeting, 
when  there  is  no  regular  place  of  business. 
Troy  Mining  Ck).  v.  White,  10  6.  D.  475,  74 
N.  W.  236,  42:  549 
Notice  of. 

326.  The  absence  of  a  director*  who  was 
disqualified  from  acting  on  a  question  con- 
sidered at  a  special  meeting  of  a  board  of 
directors  will  not  render  the  action  invalid, 
although  no  written  notice  of  the  meeting 
had  been  given  as  prescribed  by  statute. 
iToy  Mining  Co.  v.  White,  10  S.  "D.  475,  74 
JN.  W.  236,  42:  549 

327.  The  presence  of  all  the  directors  of 
a  corporation  at  a  special  meeting  of  which 
written  notice  has  not  been  given,  as  re- 
quired by  S.  D.  Comp.  Laws,  §  2932,  subd. 
4,  makes  the  want  of  notice  immaterial,  as 
the  statute,  although  mandatory,  has  no 
negative  words.  Id. 
De  facto  board. 

328.  Those  assuming  to  be  the  board  of 
directors  of  a  corporation  do  not  become  a 
de  facto  board  by  meeting  on  the  day  after 
an  illegal  corporate  election  under  which 
some  of  them  claim,  although  there  is  a 
quorum  of  the  de  jure  directors  present,  but 
without  notice  to  the  others,  where  their 
meeting  is  not  at  the  office  of  the  company, 
and  they  have  not  obtained  possession  or 
control  of  the  seal,  record  book,  papers,  or 
property  of  the  corporation,  and  their  au- 
thority is  disputed  by  the  de  jure  directors 
not  present  as  well  as  by  those  who  up  to 
that  date  have  been  the  president,  vice 
president,  secretary,  and  a  majority  of  the 
executive  committee  of  the  corporation. 
Waterman  v.  Chicago  &  I.  R.  Co.  139  111. 
658,  29  N.  E.  689,  15:  418 
Rescinding  vote  for  dividend. 

329.  The  vote  of  a  dividend  payable  at  a 
future  time,  by  the  directors  of  a  corpora- 
tion, may  be  rescinded  at  a  subsequent 
meeting  held  before  the  dividend  becomes 
payable,  if  the  fact  that  it  has  been  de- 
clared has  not  been  made  public  or  in  any 
manner  communicated  to  the  stockh'oldexs^ 
and  no  fund  has  been  set  apart  for  its  pay- 
ment. Ford  V.  Easthampton  Rubber-Thread 
Co.  158  Mass.  84,  32  N.  E.  1036,  20:  65 

h.  Promoters. 

Subscription    to   Stock  l)y,   see    infra.    372, 

374.376.377. 
Corporate   Liability    for   Services    Rendered 

under  Aarreement  with,   see   Contracts, 

10. 
Validity  of  Contract  with.  Not  to  Organize 

Another  Company,  see  Contracts,  477. 


Right  of  Corporation  to  •  Recover  Avails  of 
Secret  Illegal  Agreement  by,  see  Con- 
tracts, 606. 

Estoppel  to  Deny  Corporate  Existence  in 
Suit  against,  see  Estoppel,  103. 

Action  by  Receiver  against,  see  Receivers, 
115,  117,  121. 

Priority  of  Receiver's  Certificates  Issued  to, 
see  Receivers,  107. 

Promoter  of  Syndicate,  see  Syndicate,  2. 

See  also  supra,  232,  infra,  376,  435,  473,  600, 
611,  805. 

For  Editorial  Notes,  see  infra,  VIII.  §  47. 

330.  Promoters  of  a  corporation  who  se- 
cure a  waiver  of  the  lien  of  one  selling 
property  to  the  corporation  in  favor  of  a 
mortgage  taken  by  themselves  upon  their 
property,  by  a  fraudulent  guaranty  that 
certain  money  shall  be  applied  to  making 
improvements  on  the  property,  which  is  not 
done,  will  not  be  permitted  to  enforce  their 
mortgage  against  his  objection.  Hooper  r. 
Central  Trust  Co.  81  Md.  559,  32  Atl.  505, 

29:262 

331.  A  promoter  of  a  corporation  is  af- 
fected and  bound  by  any  fraud  contained  in 
a  guaranty  to  one  selling  property  to  the 
corporation  by  another  promoter  that 
money  in  his  hands  shall  be  applied  to  pla- 
cing improvements  on  the  property,  for  the 
purpose  of  securing  a  waiver  of  the  vendor's 
lien,  so  that  he  cannot  acquire  a  right  to  a 
judgment  for  the  price  of  such  improve- 
ments which  he  can  enforce  against  the 
objection  of  such  vendor.  Id. 
Liability. 

As  Stockholder,  see  infra,  537-545. 
Condition  Precedent  to  Enforcement  of,  see 

Action  or  Suit,  29. 
Limitation  of  Action  on,  see  Limitation  of 

Actions,  118,  119. 
Allegations  as  to,  see  Pleading,  95. 
For  Editorial  Notes,  see  infra,  VJIL  §  47. 

332.  The  fact  that  persons  took  counsel 
and  acted  in  good  faith  in  organizing  them- 
selves into  a  corporation  under  what  they 
were  advised  was  a  valid  law  does  not 
relieve  them  from  individual  liability  for 
obligations  incurred  by  the  concern  if  the 
law  proves  invalid;  as  obligors  are  bound, 
not  by  the  style  which  they  give  to  them- 
selves, but  by  the  consequences  which  they 
incur  by  reason  of  their  acts.  Eaton  v. 
Walker,  76  Mich.  579,  43  N.  W.  638,    6:  102 

333.  Promoters  of  an  incorporated  college 
who  advance  money  or  assume  an  obligation 
to  pay  the  interest  on  one  of  the  subscrip- 
tions to  a  fund  for  the  purchase  of  prop- 
erty for  the  college,  when  to  do  this  is 
necessary  to  obtain  the  subscription,  and  it 
is  done  at  the  request  of  some  and  w:ith 
the  consent  of  all  those  acting  as  trustees 
of  the  prospective  corporation,  on  the  under- 
standing that  the  college  will  repay  them  or 
save  them  harmless,  can  recover  from  it  thie 
amount  of  such  interest  which  they  have 
been  compelled  to  pay.  and  which  went  into 
the  fund'  used  in  buying  the  college  prop- 
erty. Morton  v.  Hamilton  College,  100  Kv. 
281,  38  S.  W\  1,  35:  275 

334.  A  purchase  of  land  in  the  name  of  a 


768 


CORPORATIONS,  IV.  h. 


corporation,  the  charter  of  which,  prepared 
for  that  purpose  by  the  vendor's  attorney, 
had  been  signed  and  filed,  but  defectively 
acknowledged,  and  for  which  purchase- 
money  notes  were  given  signed  by  a  person 
described  as  its  president,  although  no  or- 
ganization by  election  of  officers  had  then 
been  made,  does  not  make  him  or  other  pro- 
moters personally  liable  on  the  purchase, — 
especially  when  the  corporation  at  its  first 
formal  meeting  approved  the  purchase,  and 
the  vendors  have  recognized  it  as  the  pur- 
chaser on  foreclosure  of  the  vendor's  lien. 
Shields  v.  Clifton  Hill  Land  Co.  94  Tenn. 
123,  28  S.  W.  668,  26:  509 

Compensation  for  services  generally. 

335.  Promoters  of  a  corporation  cannot 
honestly  take  any  remuneration  for  their 
services  as  such,  unless  a  full  statement 
thereof  is  incorporated  in  the  prospectus, 
or  unless  it  is  voted  to  them  after  all  the 
stock  has  been  taken  by  the  public.  Hay- 
ward  V.  Leeson,  176  Mass.  310,  57  N,  E.  656, 

49:  725 
Taking  stock  in  payment  for  services. 
See  also  infra,  342,  374,  653. 

336.  Stock  taken  by  promoters  for  serv- 
ices, in  fraud  of  the  rights  of  future  stock- 
holders, may  be  followed  by  the  corpora- 
tion, and  the  shares  or  their  proceeds  re- 
covered in  the  promoters'  hands,  or  damages 
for  their  loss.  Hayward  v.  Leeson.  176 
Mass.  310,  57  N.  E.  656,  49:  725 

337.  It  is  a  fraud  for  promoters  to  under- 
take to  decide  for  the  future  stockholders 
in  the  corporation  to  be  organized,  that  ono 
third  of  the  whole  capital  stock  is  a  fair 
remuneration  for  their  Services,  to  i^sue 
that  amount  to  themselves  as  such  remu- 
neratinn.  and  then  to  invite  the  public  to 
subscribe  to  the  stock  without  disclosing 
that  fact,  and  getting  the  subscribers'  con- 
sent to  the  payment  of  that  remuneration. 

Id. 

338.  A  corporation  may  secure  the  cancel- 
ation of  stock  which  was  naid  for  out  of  the 
secret  profits  made  by  the  subscribers  in  the 
sale  to  the  corporation  of  property  on  wl.'ich 
they  had  secured  an  option  and  to  i)urchase 
which  they  had  organized  the  corporation, 
the  management  .of  which  at  the  consumma- 
tion of  the  transaction  was  coniplotely 
under  their  control.  Yeiser  v.  United 
States  Board  &  P.  Co.  46  C.  C.  A.  567,  107 
Fed.  340,  ^  52:  724 

339.  Expenses  of  organization  paid  by 
promoters  may  be  deducted  by  them  in 
accounting  for  stock  fraudulently  taken  by 
them  in  payment  for  services  as  promoters. 
TTayward  v.  Leeson,  176  Mass.  310,  57  X.  E. 
656,  49 :  725 

340.  The  value  of  stock  fraudulently 
f  aken  by  promoters  for  services,  for  which 
they  are  required  to  account  to  the  cor- 
poration, is  to  be  fixed,  not  as  of  the  time 
of  the  taking,  when  it  had  no  value,  but  at 
the  time  when,  by  the  launching  of  the  cor- 
poration, its  value  was  established.  Id. 

341.  The  organizers  of  a  corporation 
cannot  escape  liability  to  pay  in  for  the 
benefit  of  creditors  the  face  value  of  the 
stock  issued  to  them,   although   they   made 


no  written  subscription,  but  agreed  orally 
that  the  stock  should  be  sold  to  them  by 
the  corporation  as  fully  paid  upon  payment 
of  a  fraction  only  of  its  face  value.  Ver- 
mont Marble  Co.  v.  Declez  Granite  Co.  135 
Cal.  579,  67  Pac.  1057,  56:  728 

Sales  by,  to  corporation. 

342.  Promoters  of  a  corporation  cannot 
escape  liability  to  it  for  fraudulent  profits 
in  transferring  to  it  property  at  an  exces- 
sive value,  by  limiting  the  stock  subscrip- 
tion to  themselves  until  the  transaction  is 
consummated,  so  that  no  stockholder  is  de- 
ceived, and  then  selling  the  remaining  stock 
to  outsiders  as  treasury  'Stock.  Pietsch  v. 
Milbrath,  123  Wis.  647,  102  N.  W.  342, 

68:  945 

343.  A  statement  in  the  prospectus  of  a 
corporation  prepared  by  a  promoter  of  the 
corporation  who  organized  it  with  the  in- 
tention of  transferring  to  it  certain  real  es- 
tate previously  purchased  by  him  as  fol- 
lows: "Cost  of  ground  $40,000,"— is  not 
fraudulent  although  the  land  cost  him  less 
than  that  amount,  as  it  is  not  a  representa- 
tion that  the  land  actually  cost  the  pro- 
moter such  amount  but  that  it  is  to  be 
estimated  at  that  amount  in  the  transfer  to 
the  corporation.  Milwaukee  Cold  Storage 
Co.  V.  Dexter,  99  Wis.  214,  74  N.  W.  976. 

40:  837 

344.  No  oflfer  of  rescission  is  necessary  to 
obtain  an  accounting  by  a  corporation  from 
a  promoter  who  by  his  fraud  has  secretly 
received  profits  on  property  sold  to  the  cor- 
poration. Yale  Gas  Stove  Co.  v.  Wilcox, 
64  Conn.  101,  29  Atl.  303,  25:  90 

345.  One  who  organizes  a  corporation  to 
purchase  letters  patent  at  a  certain  price, 
while  he  already  has  a  secret  agreement 
with  the  owner  whereby  he  is  to  obtain 
from  the  latter  a  part  of  the  avails  of  the 
sale,  but  who  induces  subscriptions  to  the 
stock  by  stating  that  he  is  putting  his 
money  into  the  enterprise  upon  precisely 
the  same  basis  as  the  other  stockholders, 
may  be  compelled  to  account  to  the  corpo- 
ration for  the  profits  retained  by  him  under 
his  secret  agreement.  Id. 

346.  A  promoter  of  a  corporation  who 
transferred  to  it  certain  land  purchased  by 
him  before  anything  was  done  toward  the 
formation  of  the  corporation  cannot  be  held 
liable  to  the  corporation  for  an  amount  re- 
ceived from  it  in  excess  of  the  amount 
actually  paid  by  him,  in  the  absence  of  a 
misrepresentation  or  false  statement  by 
him.  although  he  did  not  disclose  the 
amount  paid  T)y  him  to  any  subscriber, 
where  all  the  subscribers  had  the  opportu- 
nity to  ascertain  the  condition  and  value  of 
the  land  and  knew  the  price  charged  the 
coiporation.  Afilwaukee  Cold-Storage  Co. 
V.  Dexter,  99  Wis.  214,  74  X.  W.  976,  40:  837 

347.  A  sale  of  land  to  a  corporation  by 
one  of  its  promoters  who  purchased  the 
land  before  anything  was  done  toward  the 
formation  of  the  corporation  for  less  than 
the  amount  for  which  he  transferred  it  to 
>^uch  corporation  will  not  be  held  fraudulent 
as  to  the  corporation  or  any  subscriber  in 
the  absence  of  any  false  statement  or  mis- 


CORPORATIONS,  V.  a. 


769 


representation  because  he  personally  paid 
a  commission  to  certain  influential  persons 
to  induce  them  to  subscribe  for  the  capital 
stock,  not  because  he  personally  paid  money 
to  his  grantoT  after  the  latter's  subscription 
to  the  capital  stock  to  remove  his  dissatis- 
faction at  having  sold  the  land  so  cheaply, — 
especially  where  his  contract  of  purchase 
precluded  him  from  transferring  the  land 
without  the  approval  of  such  grantor.       Id. 

348.  A  sale  of  property  to  a  corporation 
formed  by  the  owners  of  the  property  alone, 
who  take  in  payment  the  bonds  of  the  com- 
pany payable  wholly  out  of  the  enterprise, 
cannot  be  attacked  as  fraudulent  by  reason 
of  any  overvaluation  of  the  property.  Sey- 
mour V.  Spring  Forest  Cemetery  Asso.  144 
N.  Y.  333,  39  N.  E.  3G5,  .         26:  859 

349.  A  corporation  entitled  to  fepudiate  a 
transaction  made  by  directors  for  their  own 
benefit  must  act  promptly  on  knowledge  of 
the  facts,  and  cannot  wait  and  speculate  up- 
on the  chances  of  delay.  Id. 


V.  Capital;    Stock  and  Stockholders. 
a.  In  General;  Issue  of  Stock. 

Power  to  Issue  Stock,  see  supra,  147. 

Contract  to  Repurchase  Its  Own  Stock,  see 
supra,    145,   146,    176. 

Forfeiture  for  Failure  to  Pay  in  Capital 
Stock,  see  infra,  698. 

Ownership  of  Stock  by-  Aliens,  see  Aliens, 
17. 

Lien  Acquired  by  Attachment  of  Stock,  see 
Attachment,  30. 

Stockholders  in  Bank,  see  Banks,  IT. 

Stock  of  Loan  Association,  see  Building  and 
Loan  Associations,  II. 

For  Bonds  by  Corporation,  see  Bonds,  ITT.  a. 

Status  of  Stockholder  of  Club  Which  Car- 
ries on  Gambling,  see  Clubs,  3. 

Conflict  of  Laws  as  to  Stock,  see  Conflict 
of  Laws,  164-167. 

Court  Forcing  Member  upon  Corporation 
against  Its  Will,  see  Courts,  220. 

Presumption  as  to  Value  of  Stock,  see  Evi- 
dence, 685. 

Presumption  as  to  being  Stockholder,  see 
Evidence,  258. 

Issue  of  Stock,  for  Interest  in  Other  Busi- 
ness, Evidence  as  to,  see  Evidence,  2132. 

Levy  on  Stock,  see  Levy  and  Seizure,  14-17. 

Raising  Question  by  Stipulation,  see 
Stipulation,  5. 

Implied  Trust  as  to  Stock,  see  Trusts,  50. 

See  also  supra,  9,  97,  167. 

For  Editorial  Notes,  see  infra,  VTIT.  §§  19- 
23. 

350.  The  rights  of  a  creditor  respecting 
shares  of  corporation  stock  for  which  cer- 
tificates have  not  been  issued,  alleged  to  be 
the  property  of  his  debtor,  are  the  same  as 
in  the  case  of  an  ordinary  chose  in  action. 
Lipscomb  V.  Condon,  56  W.  Va.  416,  49  S.  E. 
392.  67:  670 

351.  The  par  value  of  the  stock  of  a  cor- 
poration, within  the  meaning  of  its  charter 
authorizing  it  to  borrow  money  "not  exceed- 

L.R.A.  T)ig.--19. 


ing  one  half  of  the  par  value  of  the  capital 
stock,"  means  the  actual  amount  of  the 
capital  paid  in,  where  subscriptions  for  the 
full  amount  of  the  stock  have  been  made, 
but  only  part  of  the  face  value  of  each 
share  actually  paid  in.  Lehigh  Ave.  R.  Co.'s 
Appeal,  129  Pa.  405,  18  Atl.  498,  5:  367 

352.  The  issue  of  stock  to  a  certain  per- 
son is  not  ultra  vires  and  void  and  in- 
capable of  ratification  on  the  ground  that 
no  consideration  was  paid  therefor,  where 
all  the  stock  was  issued  without  any  con- 
sideration given  directly  therefor,  but  under 
an  arrangement  by  which  the  other  stock- 
holders advanced  money,  for  him  as  well  as 
themselves,  to  purchase  mortgage  bonds  of 
the  corporation,  and,  after  they  were  re- 
imbursed, all  received  an  equal  interest  in 
the  stock.  Clark  v.  American  Coal  Co.  86 
Iowa,  436,  53  N.  W.  291,  17:  557 

353.  A  contract  by  which  an  agent  gets 
stock  in  a  corporation  from  which  he  makes 
purchases  for  his  principal,  who  is  ignorant 
of  the  arrangement,  on  which  contract  the 
existence  of  the  corporation  depends,  is  not 
so  utterly  void  as  to  be  incapable  of  rati- 
fication, if  that  is  necessary  to  give  it  life. 

Id. 

354.  The  legal  imputation  of  fraud  in  the 
issue  of  stock  in  a  coal  company  to  the  fuel 
agent  of  a  railroad  company  without  his 
principal's  knowledge,  wbn^by  he  receives 
both  dividends  on  the  stock  ami  compensa- 
tion for  his  services  as  agent  in  buying  fuel 
from  the  coal  company,,  will  not  make  his 
stock,  or  the  payment  of  dividends  to  him 
thereon,  or  the  representation  of  the  stock 
in  the  management  and  control  of  the  com- 
pany, illesral  as  to  a  subsequent  purchaser 
of  stock  in  the  same  company,  where  all  the 
members  of  the  coal  company  knew  of  and 
agreed  to  such  action,  while  the  railroad 
company  was  not  in  fact  defrauded,  but 
rather  benefited,  by  its  agent's  connection 
with  the  coal  company.  Id. 
Nature  of  certificate  of  stock. 

As  to  Negotiability  of  Certificates,  see  infra, 
397.  398. 

355.  Shares  of  stock  in  a  corporation  are 
personal  estate  and  a  species  of  incorporeal 
property.  Lipscomb  V.  Condon,  56  W.  Va. 
416.  49  S.  E.  ,392,  67:  670 

356.  A  certificate  of  stock  is  not  the 
stock  itself,  but  is  evidence  of  its  existence 
and   ownership.  Id. 

357.  Though,  when  issued,  a  certificate  of 
stock  is  a  miiniment  of  title,  it  is  not  es,- 
sential  to  the  existence  of  the  property 
represented  by  it.  Id. 
Increase  of  stock. 

Repeal  of  Statute  as  to,  see  Statutes,  566. 
For  Editorial  Notes,  see  infra,  VTIT.  §  22. 

358.  The  increase  of  stock  is  not  within 
the  implied  powers  of  a  corporation. 
Cooke  V.  Marshall.  191  Pa.  315,  43  Atl.  314, 
196  Pa.  200,  4{?  Atl.  447,  64:  413 

359.  A  resolution  of  the  members  of  a 
corporation  for  the  increase  of  its  capital 
stock  is  a  suflFioient  bv-law  for  that  pur- 
pose. Peck  V.  Elliott.  24  C.  C.  A.  425.  47  U. 
S.  App.  605,  70  Fed.  10.  _  38:  616 

360.  An  inciease  of  the  capital  of  a  cor- 


770 


CORPORATIONS,  V.  b.  1. 


poration  by  an  amendment  of  a  by-law  is 
valid  when  by  the  constitution  of  the  cor- 
poration it  is  given  power  to  fix  the  amount 
of  capital  by  by-law.  Id. 

361.  The  rule  against  an  implied  power 
of  a  corporation  to  increase  the  amount  of 
its  capital  when  that  is  definitely  fixed  by 
tbe  charter  or  statutory  articles  of  incorpo- 
ration has  no  application  where  the  power 
to  determine  upon  the  capital  to  be  engaged 
is  made  one  of  the  matters  for  internal 
regulation  by  by-law.  Id. 
Bonus  stock. 

Holders  of,  as  Parties  on  Mortgage  Fore- 
closure, see  Parties,  159. 
Allegation  as  to,  see  Pleading,  233. 
See  also  infra,  632,  633. 
For  Editorial  Notes,  see  infra,  VIII.  §  20. 

362.  A  mortgage  by  a  corporation  to  se- 
cure money  advanced  to  it  in  good  faith 
cannot  be  reduced  in  favor  of  liens  of  subse- 
quent creditors,  because,  at  the  time  of,  and 
as  an  inducement  to,  the  advance,  the  mort- 
gagees received  stock  of  the  corporation  as  a 
bonus.  Dummer  v.  Smedley,  110  Mich.  466, 
68  N.  W.  266,  38:  490 

363.  Existing  creditors  of  a  corporation 
cannot  impeach  a  transaction  by  which  the 
corporate  stock  is  increased  and  issued  as  a 
bonus  to  third  persons  to  induce  them  to  ad- 
vance money  to  the  corporation  on  mort- 
gage security,  so  as  to  avoid  the  mortgage 
and  treat  the  advance  as  a  payment  for 
stock.  Id. 
Preferred  stock. 

Dividends  on,  see  infra,  520-524. 

Rights  of  Preferred  Stockholder,  see  infra, 

457-462. 
In  Loan  Association,  see  Building  and  I^oan 

Associations,  9,  11. 
See  also  supra,  157,  infra,  646. 
For  Editorial  Notes,  see  infra,  VIII.  §  24. 

364.  The  preferred  stock  authorized  by 
Md.  Code,  art.  23,  §  294,  differs  radically 
from  ordinary  preferred  stock  in  that  it  is 
expressly  constituted  "a  lien  on  the  fran- 
chises and  property"  of  the  corporation, 
with  priority  over  subsequent  mortgages  or 
other  encumbrances.  Heller  v.  National 
Marine  Bank,  89  Md.  602,  43  Atl.  800, 

45:438 

365.  A  corporation  may  classify  its  stock 
at  its  organization,  and  provide  for  a  pref- 
erence of  one  class  OA'er  another  in  respect 
of  both  capital  and  dividends,  in  the  ab- 
sence of  charter  regulation  or  prohibition  by 
law.  Hamlin  v.  Toledo,  St.  L.  &  K.  C.  R. 
Co.  24  C.  C.  A.  271.  47  U.  S.  App.  422.  78 
Fffl.  664.  36:  826 

.'^6fi.  A  provision  in  certificates  of  "pre- 
ferred nonvoting  capital  stock"  that  if  the 
holder  fails  to  avail  himself  of  the  privile<re 
of  converting  it  into  common  stock  within 
a  specified  time  it  shall  "become  prefen-ed 
4  per  cent  noncumulative  stock,"  does  not 
show  that  it  was  not  preferred  stock  before 
the  rcjoction  of  the  option.  Id. 

367.  Preferred  stock  of  a  railroad  com- 
l>:inv  is  not  an  indebtedness  which  can  be 
r  )n^i(l  'vihI  in  determining  whether  its 
obligations  ate  ^mh  as  to  prevent  its  oper- 
ating  an    additional    train.     People   ex   rel. 


Cantrell  v.  St.  Louis,  A.  &  T.  H.  R.  Co.  176 
111.  512,  45  N.  E.  824,  52  N.  E.  292,     35:  656 
Retirement  of  preferred  stock. 
For  Editorial  Notes,  see  infra,  VIII.  §  24. 

368.  A  corporation  whose  act  of  incorpo- 
ration provides  for  the  payment  to  preferred 
stockholders  of  a  yearly  dividend  at  the 
rate  of  7  per  cent  per  annum  in  quarterly 
payments,  which  has  declared  and  paid  four 
such  dividends  in  successive  quarters  be- 
fore calling  a  meeting  on  the  question  of 
retiring  part  of  the  preferred  stock,  is  with- 
in the  provision  of  the  New  J.ersey  act  of 
1902,  authorizing  corporations  which  have 
issued  preferred  stock  entitling  the  holders 
to  receive  dividends  at  a  rate  exceeding  5 
per  cent  per  annum,  and  which  shall  have 
"continuously"  declared  and  paid  dividends 
at  such  rate  on  such  preferred  stock  "for 
the  period  of  at  least  one  year  next  pre- 
ceding the  meeting,"  to  retire  such  preferred 
stock.  Hodge  v.  United  States  Steel  Corp. 
(N.  J.  Err.  &  App.)  64  N.  J.  Eq.  807,  54  Atl. 
1,  60:  742 
Duplicate  certificates;  indemnity  bond. 

369.  A  corporation  cannot  be  compelled 
to  issue,  in  place  of  lost  or  mislaid  cer- 
tificates of  stock,  other  certificates  which 
purport  to  be  original,  and  which  contain 
no  notice  that  they  are  in  lieu  of  those 
claimed  to  have  been  lost,  in  the  absence  of 
any  statute,  by-law,  or  other  express  obliga- 
tion to  do  so,  although  sufficient  indemnity 
is  offered.  Keller  v.  Eureka  Brick  Mach. 
Mfg.  Co.  43  Mo.  App.  84,  11:  472 

370.  The  issue,  by  a  corporation,  of  dupli- 
cate certificates  reciting  that  they  are  dupli- 
cates and  issued  in  lieu  of  those  which  are 
lost,  may  be  compelled  upon  the  tender  of  a 
sufficient  indemnity  bond.  Id. 

371.  A  bond  of  indemnity  as  a  condition 
of  issuinsr  a  new  certificate  of  stock  in  lieu 
of  one  that  has  been  mislaid  while  in  the 
custody  of  the  president  of  the  corporation, 
to  which  it  had  been  assigned  as  security, 
cannot  be  required  of  the  assignor  under  a 
statutory  provision  respecting  lost  or  de- 
stroyed certificates,  since  he  had  already 
done  respecting  it  all  that  he  was  to  do  or 
could  be  required  to  do.  Farmers'  Bank  v. 
Diebold  Safe  &  L.  Co.  66  Ohio  St.  367,  64 
N.  E.  518,  58:  620 

b.  Subscriptions. 

1.  In  General. 

Law  Governing,  see  Conflict  of  Laws,  166- 
Impairment  of  Obligation  of  Contract  as  to, 

see  Constitutional  Law,  1160. 
Illegal  Contract  for.  see  Contracts,  380. 
Estoppel   of   Subscriber,   see  Estoppel,   107, 

108. 
As  Contingent  Claim  against  Stockholder's 

Estate,  see  Executors  and  Administra- 
tors, 138. 
Limitntion    of    Action,    see    Limitation    of 

Actions,  94-98. 
Parties   to  Action   to   Enjoin  Collection   of. 

see  Parties.  158. 
To    S*o>k    of    Partnership    Association,    see 

I'urtnership,  6,  34 


CORPORATIONS,  V.  b.  1. 


771 


Pleading  Defense  of  Substitution  of  As- 
signee, see  Pleading,  477. 

Removal  of  Suit  to  Cancel  Subscription,  see 
Removal  of  Causes,  15. 

Specific  Enforcement  of  Agreement  with 
Subscriber,  see  Specific  Performance,  70. 

Subscription  to  Railroad  Stock  by  Town, 
see  Towns,  3. 

Question  for  Jury  as  to,  see  Trial,  206. 

Collection  of,  by  Trustee,  see  Trusts,  163. 

Right  of  Existing  Stockholder  to  Subscribe, 
see  Union  Depot  Company,  1. 

See  also  infra,  405,  406. 

For  Editorial  Notes,  see  infra,  VIII.  §§  25- 
27,  35^3. 

372.  A  subscription  by  a  number  of  per- 
sons to  the  stock  of  a  corporation  to  be 
thereafter  formed  by  them  constitutes,  first, 
a  contract  between  the  subscriBers  them- 
selves to  become  stockholders  when  the  cor- 
poration is  formed,  upon  the  conditions 
expressed  in  the  agreement,  and  as  such  it 
is  binding  and  irevocable  from  the  date  of 
the  subscription;  second,  it'  is  in  the  nature 
of  a  continuing  offer  to  the  proposed  corpo- 
ration, which,  upon  acceptance  by  it,  be- 
comes, as  to  each  subscriber,  a  contract  be- 
tween him  and  the  corporation.  Minne- 
apolis Threshing- Mach.  Co.  v.  Davis,  40 
Minn.  110,  41  N.  W.  1026,  3:  796 

373.  A  subscription  to  the  stock  of  a 
corporation  is  not  an  agreement  to  pay  so 
much  money  unless  so  expressed  in  the  con- 
tract, but  is  a  contract  to  enter  into  the 
relation  of  stockholder.  Rochester  &  K.  F. 
Land  Co.  v.  Raymond,  158  N.  Y.  576,  53  N. 
E.  507,  47:246 

374.  An  agreement  by  which  persons  or- 
ganizing a  corporation  are  to  have  bonds  of 
the  corporation  to  an  amount  equal  to  the 
stock  subscribed  for,  secured  by  a  mort- 
gage on  the  corporate  property,  is  illegal 
and  void,  and  cannot  be  enforced  against  the 
corporation,  even  though  the  rights  of  •  no 
creditors  of  the  corporation  are  involved. 
Morrow  v.  Nashville  Iron  &  S.  Co.  87  Tenn. 
262,  10  S.  W,  495,  3:  37 
When  subscription  completed  and  binding. 
For  Editorial  Notes,  see  infra,  VIII.  §  25. 

375.  An  agreement  to  subscribe  and  pay 
for  stock  within  thirty  days  from  the  or- 
ganization of  a  corporation  means  stock  of 
a  corporation  de  jure,  and  not  de  facto,  and 
therefore  is  not  binding  until  the  corpo- 
ration is  laAvfuUy  organized  so  as  to  be 
authorized  to  do  business.  Capps  v.  Hast- 
ings Prospecting  Co.  40  Neb.  470,  58  N.  W. 
956,  24:  259 

376.  A  promoter  of  a  proposed  corpora- 
tion, who  solicits  and  procures  stock  sub- 
scriptions, is  the  agent  of  the  body  of  the 
subscribers  to  hold  the  subscriptions  until 
the  corporation  is  formed,  and  then  turn 
them  over  to  it  without  any  further  act  of 
delivery  on  the  part  of  the  subscribers. 
Hence  a  delivery  of  a  subscription  to  such 
promoter  is  a  complete  delivery,  so  that  it 
becomes  eo  instanti  a  binding  contract  as 
between  the  subscribers.  Minneapolis 
Thresliing-Mach.  Co.  v.  Davis,  40  Minn.  110, 
41   N.  W.   1026,  3:  796 

377.  The    agreement    of    one    who    sigiia 


articles  of  association  for  the  formation  of 
a  corporation,  to  take  stock  therein,  does 
not  become  enforceable  until  he  has 
acknoAvledged  the  articles  as  required  by 
Fiid.  Rev.  Stat.  §  3851.  Coppage  v.  Hutton, 
124  Ind.  401,  24  N.  E.  112,  7:  591 

Conditions  to  subscription. 
Protest  by   Stockholder  Against   Requiring 
Bonus  as,  see  Judgment,  290. 

378.  Where  a  person  subscribes  to  the 
stock  of  a  proposed  corporation,  and  delivers 
the  subscription  to  such  promoter,  and 
other  persons,  without  notice  of  any  oral 
condition  attached  to  such  delivery,  also 
subscribe  to  the  stock  and  pay  the  same  in; 
and,  in  reliance  on  the  subscriptions,  the 
corporation  is  organized,  engages  in  its  busi- 
ness, expends  large  sums  of  money,  and  con- 
tracts liabilities  therein, — such  person,  when 
sued  for  instalments  due  on  his  stock  sub- 
scriptions, will  not  be  allowed  to  defeat  a 
recovery  by  showing  that  he  attached  a 
secret  oral  condition  to  the  delivery  of  his 
subscription  to  the  promoter.  Minneapolis 
Threshing-Mach.  Co.  v.  Davis,  40  Minn.  110, 
41  N.  W.  1026,  3:  796 

379.  A  stipulation  in  a  contract  of  sub- 
scription to  the  stock  of  a  corporation,  pay- 
able in  instalments,  to  the  effect  that  bonds 
of  the  corporation,  secured  by  mortgage  on 
its  property,  shall  be  given  to  its  subscrib- 
ers in  an  amount  equal  to  their  stock,  does 
not  make  the  issuance  of  such  bonds  a 
condition  precedent  to  liability  upon  the 
subscription;  and  the  failure  of  the  com- 
pany to  carry  out  this  agreement  does  not 
defeat  such  liability.  Morrow  v.  Nashville 
Iron  &  S.  Co.  87  Tenn.  262,  10  S.  W.  495, 

3:37 
Cancelation  or  release. 
Question  for  Jury  as  to,  see  Trial,  161. 

See  also  Banks,  26.  

For  Editorial  Notes,  see  infra,  Vm.  §§  25, 
26.  ^ 

380.  Insolvency  of  the  corporation  will 
not  prevent  cancelation  of  a  stock  subscrip- 
tion for  fraud,  if  the  subscriber  acted  with 
due  diligence  in  discovering  the  fraud  and 
repudiating  his  subscription,  and  no  con- 
siderable amount  of  indebtedness  was  con- 
tracted after  the  subscription  was  made. 
Newton  Nat.  Bank  v.  Newbegin,  40  U.  S. 
App.  1,  74  Fed.  135,  20  C.  C.  A.  339,    33:  727 

381.  Creditors  of  an  insolvent  corpora- 
tion waive  their  right  to  object  to  cancela- 
tion of  a  subscription  to  stock  procured  by 
fraud,  by  making  a  settlement  with  the 
reorganized  corporation,  with  full  knowl- 
edge that  the  defrauded  subscriber  insists 
on  his  discharge  and  a  return  of  his  money. 

Id. 

382.  A  subscriber  to  the  capital  stock  of 
an  unorganized  corporation  may  withdraw 
from  the  enterprise  at  any  time  before  the 
corporation  is  organized  and  his  subscrip- 
tion accepted,  in  the  absence  of  any  pro- 
vision of  the  subscription  paper  creating 
a  binding  contract  between  the  subscribers 
themselves,  as,  otherwise,  until  incorpor- 
ation there  is  no  obligee.  Bryant's  Pond 
Steam-Mill  Co.  v.  Felt,  87  Me.  234,  32  Atl. 
888,  33:  693 


772 


CORPORATIONS.  V.  b,  2,  c.  1. 


383.  A  premature  and  void  contract  made 
by  a  corporation  before  there  had  been  paid 
in  the  amount  of  capital  stock  required  by 
statute  to  be  paid  in  before  corporate  powers 
could  be  exercised,  the  contract  being  to 
promote  the  purposes  of  the  corporation, 
and  being  carried  out  after  the  corpora- 
tion became  enabled  to  make  it  valid,  does 
not  release  a  subscription  for  corporate 
stock.  Naugatuck  Water  Co.  v.  Nichols,  58 
Conn.  403,  20  Atl.  315,  8:  637 

384.  Withdrawal  by  a  subscriber  to  the 
stock  of  an  unorganized  corporation  is  ef- 
fected by  notifying  the  promoter's  agent, 
who  secured  the  subscription,  of  the  inten- 
tion to  withdraw,  and  requesting  the  drop- 
ping of  the  subscriber's  name  from  the 
subscription  paper,  which  facts  are  before 
organization  brought  to  the  attention  of 
the  subscribers  at  one  of  their  meetings. 
Bryant's  Pond  Steam-Mill  Co.  v.  Felt,  87 
Me.  234,  32  Atl.  888,  33:  593 

385.  A  corporation  may,  if  it  acts  in  good 
faith,  lawfully  receive  from  its  subscribers 
who  have  paid  a  certain  percentage  of  their 
subscriptions,  a  surrender  of  the  certificates 
held  by  them,  and  issue,  in  lieu  thereof,  cer- 
tificates for  as  many  fully  paid  shares  of 
stock  as  the  mony  paid  in  will  buy,  there- 
by releasing  them  from  further  liability, 
as  far  as  the  claims  of  the  company  itself 
are  concerned.  Republic  L.  Ins.  Co.  v.  Swi- 
gert,  135  111.  150,  25  N.  E.  680,  12:  328 

386.  An  attempt  to  release  a  stockholder 
from  his  contract  by  the  general  manager 
of  a  corporation,  who  is  also  its  largest 
stockholder,  secretary,  and  treasurer,  on 
the  stockholder's  request  that  he  will  dis- 
pose of  his  stock,  whereby  he  causes  en- 
tries to  be  made  on  the  books  charging  off 
the  balance  due  for  unpaid  calls,  and  credit- 
ing to  the  stockholder  the  sums  paid  by 
him,  will  not  avail  to  release  the  stock- 
holder where  no  attempt  is  made  to  trans- 
fer his  shares,  although  the  manager  se- 
cures new  subscriptions  to  the  stock  in 
place  thereof,  and  both  parties  suppose  that 
he  is  authorized  to  substitute  new  subscrip- 
tions and  release  the  old  ones.  Cartwright 
V.  Dickinson,  68  Tenn.  476,  12  S.  W.  1030, 

7:  706 

387.  The  fact  that  an  overissue  of  stock 
will  be  the  result  where  stock  is  issued  to 
new  subscribers  as  a  substitute  for  stock- 
holders who  wish  to  withdraw,  unless  an 
attempted  cancelation  of  the  earlier  sub- 
scriptions (made,  with  supposed  authority, 
to  efi"ect  such  substitution)  shall  be  upheld, 
will  not  aid  such  invalid  attempt  at  can- 
celation. Id. 

388.  A  stockholder  who  is  misled  by 
statements  of  the  manager  of  the  corpora- 
tion, whom  he  has  requested  to  dispose  of 
his  shares,  to  the  effect  that  they  have  been 
sold,  when  in  fact  an  invalid  attempt  to 
cancel  them  merely  has  been  made,  is  not 
thereby  released  from  his  contract.  If  in- 
jured, his  remedy  is  one  against  his  agent, 
the  manager.  Id. 


2.  Payment. 

Liability  of  Promoters,  see  also  supra,  341. 
Liability  of  Stockholder  for  Unpaid  Stock, 

see  infra,  V.  f,  3. 
Assumpsit  for  Goods  Delivered  in  Payment, 

see  Assumpsit,  3. 
For  New   Stock,  Recovery  Back  of  Bonus 

Required   for  Privilege  of   Subscribing, 

see  Assumpsit,  36. 
Defense  against  Assignee  of  Note  Given  for 

Subscription  to  Syndicate  Organization, 

see  Bills  and  Notes,  186. 
Pleading  as  to,  see  Pleading,  504. 
See  also  infra,  406. 

389.  Payment  of  money  to  save  money 
already  paid  on  subscription  to  the  stock 
of  a  corporation,  which  subscription  has 
been  repudiated  for  fraud,  will  not  neces- 
sarily amount  to  an  affirmance  of  the  sub- 
scription. Fear  v.  Bartlett,  81  Md.  435,  32 
Atl.  322,  33:  721 
Stock  issued  in  exchange  for  property  or 

services. 
To  Promoters,  see  supra,  336-342. 
Liability  of  Stockholders,   see  infra,  V.   f, 

3,  5. 
See  also  supra,  149,  infra,  566. 

390.  A  corporation  which  purchases  prop- 
erty intending  to  issue  stock  in  payment 
therefor  need  not  make  the  whole  payment 
in  stock;  it  may  issue  stock  for  a  portion, 
and  pay  in  cash  or  issue  bonds  for  the  bal- 
ance. Gamble  v.  Queens  County  Water 
Co.  123  N.  Y.  91,  25  N.  E.  201,  9:  527 

391.  A  corporation  cannot  issue  its  stock 
in  exchange  for  property  purchased  by  it,  at 
anything  less  than  its  par  value,  under  N. 
Y.  Laws  1848,  chap.  40,  §  2,  which  empow- 
ers the  purchase  of  property  with  stock,  to 
be  issued  to  the  amoimt  of  the  value  of  such 
property,  and  provides  that  the  stock  so 
issued  shall  be  declared  and  taken  to  be 
full-paid  stock,  not  liable  to  further  calls. 

Id. 

c.  Transfers;  Lien. 

1.  In  General. 

Liability  of  Transferee,  see  infra,  V.  f,  2. 
Transfer  of  Bank  Stock,  see  Banks,  5-11, 

29. 
Bank's  Liability  for  Giving  False  Certificate 

Inducing  Purchase  of  Stock,  see  Banks, 

286. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

167. 
Oral  Agreement  to  Sell,  see  Contracts,  152. 
Construction    of    Contract    for   Repurchase, 

see  Contracts,  309. 
Consideration    for    Contract    to    Find    Pur- 
chaser, see  Contracts,  70. 
Validity  of  Contract  Made  with  Purchaser 

of  Stock,  see  Contracts,  470. 
Performance    of    Contract    to    Procure    Bid 

for   Stock,  see   Contracts,   706. 
Transfer  for  Illegal  Purpose,  see  Contracts, 

637. 
Deposit  of  Stock  for  Delivery  on  Condition, 

see  Escrow,  L 


CORPORATIONS.  V.  c,  1. 


m 


Estoppel  by  Transfer,  see  Estoppel,  115, 
227. 

Presumption  as  to  Ownership  of  Stock,  see 
Evidence,   725. 

Burden  of  Proving  Exercise  of  Power  to 
Sell,  see  F>idence,  239. 

Evidence  of  Damages  in  Inducing  Purchase 
of  Stoci<,  see  Evidence,  1832. 

Burden  of  Showing  Character  of  Transac- 
tion for  Purchase  and  Sale  of  Stocks, 
see  Evidence,  348. 

Sale  of  Stock  by  Executors,  see  Executors 
and  Administrators,  56. 

Fraud  in  Sale  of  Stock,  see  Damages,  266- 
269;  Fraud  and  Deceit,  11,  33,  34,  42, 
60,  61,  69,  70,  73. 

Gift  of  Stock,  see  Evidence,  2149;  Gift,  27, 
28.  35-37,  41,  47,  49. 

Void  Decree  for  Sale  of  InfantV  Stock,  see 
Infants,  112. 

Conclusiveness  of  Decision  Allotting  Stock 
to  Widow,  see  Judement,  284. 

Limitation  of  Action  for  Wrongful  Trans- 
fer, see  Limitation  of  Actions,  80. 

Notice  to  Purchaser  as  to  Amount  of  Cor- 
porate Property,  see  Notice,  9. 

Right  of  Action  for  Fraudulently  Inducing 
Purchase,  see  Parties,  84. 

Parties  to  Action  for  Fraud  in  Inducing 
Purchase  of  Stock,  see  Parties,   160. 

Sale  of  Partnership  Stock,  see  Partnership, 
122. 

Agreement  by  Broker  to  Repurchase  Stock, 
see  Partnership,  24. 

Pledge  of  Stock,  see  Pledge  and  Collateral 
Security,  3,  19,  34;  Principal  and  Sure- 
ty, 50. 

Forged  Transfer  by  Agent,  see  Principal 
and  Asent,  60,  64. 

Implied  Warranty  on  Sale  of  Stock,  see 
Sale,  91. 

Enforcement  of  Contract  for  Purchase  or 
Sale,  see  Specific  Performance,  8,  22, 
68-73. 

Effect  of  Failure  to  Keep  Tender  Good  on 
Right  to  Compel  Repurchase,  see  Ten- 
der,  11. 

Conversion  of  Stock,  see  Damages,  396; 
Trover,  10,  19. 

Compelling  Existing  Stockholders  to  Sell 
Part  of  Stock,  see  Union  Depot  Com- 
pany, 2. 

Specific  Legacy  of  Stock,  see  Wills,  458,  459. 

See  also  supra,  120,  220,  278. 

For  Editorial  Notes,  see  infra,  VIII.  §§ 
28-31. 

392.  By-laws  providing  that  a  transfer 
of  the  stock  of  an  irrigation  company  shall 
be  made  only  with  the  land  for  which  it 
was  issued  do  not  apply  to  a  sale  of  delin- 
quent stock  for  assessments,  as  the  pur- 
chaser is  not  a  transferee  of  the  former 
owner  of  the  stock.  Spurgeon  v.  Santa  Ana 
Valley  Irrig.  Co.  120  CaL  71,  52  Pac.  140, 

39:  701 
Necessity  of  certificate. 
See   also   infra,   402. 

393.  The  beneficial  interest  in  shares  of 
corporation  stock  is  assignable  by  parol,  the 
ownership  passing  immediately  on  consura- 
matioD  of  the  sale,  by  force  of  the  contract, 


as  in  the  case  of  ordinary  choses  in  action, 
and  not  by  operation  of  law.  Lipscomb  v. 
(Jondon,  56  W.  Va.  416,  49  S.  E.  392, 

67:  670 

394.  A  sale  of  shares  of  stock  for  which 
no  certificate  has  been  issued  may  be  evi- 
denced by  an  informal  written  instrument, 
executed  and  delivered  by  the  transferrer 
to  the  transferee,  without  a  power  of  at- 
torney entitling  the  latter  to  have  the  same 
transferred  on  the  books  of  the  company. 

Id. 

395.  A  certificate  is  not  necessary  to  a 
sale  of  shares  of  corporate  stock.  Id. 

396.  A  shareholder  may,  upon  his  de- 
mand, obtain  a  certificate  of  his  shares,  but, 
unless  demanded  by  him,  it  need  not  be 
issued;  and  he  may  freely  transfer  the 
shares  without  it  if  they  are  fully  paid  up, 
or  security  for  the  balance  due  on  them, 
satisfactory  to  the  board  of  directors,  be 
given.  Id. 
Negotiability  of  certificate. 

Evidence   of   Custom   as   to,  see   Evidence, 

1093. 
See  also  infra,  428. 

397.  Certificates  of  stock,  even  when  in- 
dorsed in  blank  for  the  purpose  of  author- 
izing the  making  of  an  instrument  of  trans- 
fer over  the  signature,  are  not  negotiable 
securities.  CHerron  v.  Gray,  168  Mass.  573, 
47  N.  E.  429,  40:  498 

398.  A  certificate  of  stock  of  a  corpora- 
tion, expre.ssed  on  its  face  to  be  transfer- 
able only  on  the  books  of  the  company  at 
its  office,  personally  or  by  attorney,  on  sur- 
render of  the  certificate,  and  transferred  in 
blank  upon  its  back,  is  not  a  negotiable 
instrument.  Farmers'  Bank  v.  Diebold 
Safe  &  Lock  Co.  66  Ohio  St.  367,  64  N.  E. 

518,  58:  620 

Transfer  on  books. 
Priority    of    Transferee    Over    Subsequent 

Attachment,  see  Attachment,  43. 
Transfer  of  Bank  Stock,  see  Banks,  7-9. 
Equity  Jurisdiction  to  Cancel,  see  Equity, 

€4. 
Presumption  as  to,  see  Evidence,  414. 
Mandamus  to  Compel,  see  Mandamus,  86. 
As  Proximate  Cause  of  Loss  of  Stock,  see 

Proximate  Cause.  28. 
See  also  infra,  418-421,  439,  440.  443.  444. 
For  Editorial  Notes,  see  infra,  VIII.  §  31. 

399.  The  requirement  that  corporations 
keep  transfer  books  and  that  shares  of 
stock  be  assigned  therein  is  intended  for 
the  protection  and  convenience  of  the  cor- 
poration and  its  shareholders,  and  does  not 
aff"ect  the  rights  of  one  to  whom  shares  are 
transferred  without  an  entry  in  the  trans- 
fer book.  Lipscomb  v.  Condon,  56  W.  Va. 
416,  49  S.  E.  392,  67:  670 

400.  That  provision  of  Idaho  Rev.  Stat. 
§  2611,  which  provides  that  a  tran-'fer  of 
stock,  made  by  indorsement  and  delivery 
of  the  certificate,  is  not  valid,  except  be- 
tween the  parties  thereto,  until  the  same  is 
entered  upon  the  books  of  the  corporation, 
was  not  intended  as  a  protection  to  credit- 
ors of  a  stockholder,  but  was  intended  to 
protect  the  corporation,  its  members,   and 


774 


CORPORATIONS,  V.  c.  1. 


its  creditors.     Mapleton  Bank  t.  Standrod, 
8  Idaho,  740,  71  Pac.  119,  t)7:  656 

401.  An  entry  on  the  books  of  a  corpo- 
ration is  not  necessary  to  vest  a  vendee  of 
shares  of  stock  with  all  the  title  which  the 
vendor  had,  notwithstanding  a  provision  in 
the  charter  or  by-laws  that  no  transfer 
shall  be  complete  or  effectual  without  reg- 
istration. Parker  v.  Bethel  Hotel  Co.  96 
Tenn.   252,   34   S.  W.  209,  31:706 

402.  An  unregistered  transfer  of  shares 
of  corporation  stock,  for  which  no  certif- 
icate has  been  issued,  if  made  for  a  valua- 
ble consideration  and  without  fraud,  vests 
in  the  transferee  a  title  to  the  shares  su- 
perior to  the  claim  of  a  subsequent  attach- 
ing creditor  of  the  transferrer.  Lipscomb 
V.  Condon,  56  W.  Va.  416,  49  S.  E.  392, 

67:  670 

403.  A  transfer  of  stoclc  in  a  corporation 
is  not  sufficient  to  authorize  the  transferee 
to  vote  upon  it,  until  the  transfer  is  made 
on  the  books  of  the  company,  where  it  is 
provided  that  the  stock  is  transferable  only 
on  the  books.  Morrill  v.  Little  Falls  Mfg. 
Co.  53  Minn.  371,  55  N.  W.  547,  21:  174 

404.  Assignees  of  shares  of  corporate 
stock  having  possession  of  the  certificates, 
though  holding  under  unregistered  trans- 
fers, are  not  bound  by  a  subsequent  con- 
tract between  the  corporation  and  the  other 
shareholders,  including  the  assignor,  in 
whose  name  the  shares  remain  registered, 
to  surrender  a  portion  of  such  stock  with- 
out consideration  in  order  that  new  stock 
may  be  issued  to  pay  corporate  debts  on 
10  per  cent  per  annum  is  to  be  paid,  or  as 
much  thereof  as  can  be  paid  from  the  net 
profits.  Campbell  v.  American  Zylonite  Co. 
122  X.  Y.  455,  25  K".  E.  853,  11:  596 

405.  The  right  of  a  corporation  to  enforce 
its  claim  against  stock  for  unpaid  assess- 
ments is  not  lost  by  a  transfer  of  it  on  the 
company's  books  into  the  name  of  the  new 
owner.  Craig  v.  Hesperia  Land  &  W.  Co. 
113  Cal.  7,  45  Pac.  10,  35:  306 

406.  The  existence  of  an  unpaid  assess- 
ment against  shares  of  stock  in  a  corpora- 
tion will  not  justify  it  in  refusing  to  trans- 
fer the  stock  upon  its  books  in  the  name  of 
another  owner.  Id. 

407.  It  is  the  duty  of  every  corpora- 
tion to  use  reasonable  diligence  in  each  case 
to  ascertain  whether  or  not  a  transfer  of 
stock  requested  is  duly  authorized  by  the 
former  owner,  to  make  transfers  so  author- 
ized, and  to  prevent  those  unauthorized; 
and  for  every  breach  of  this  duty  it  is  lia- 
ble to  the  injured  party  for  the  damage  it 
inflicts.  Gevspr-~Marion  Gold  Min.  Co.  v. 
Stark.  4.=)   C".  C.   A.   467,    106   Fed.   558, 

53:  684 

408.  The  rule  that  a  corporation  acting 
in-  (rood  faith  and  without  notice  of  the 
rights  of  others  may  treat  registered  share- 
holders as  the  actual  owners  of  the  shares 
standing  in  their  names  is  applicable  to 
such  transactions  only  as  are  within  the 
express  or  implied  powers  conferred  upon 
the    company    or    its    shareholders.      Camp- 


bell V.  American  Zylonite  Co.  122  N.  Y.  455, 
25  N.  E.  853,  il:596 

409.  Knowledge  of  the  fact  that  a  trans- 
fer of  stock  to  a  national  bank,  made  by 
an  attorney  of  a  trustee  who  had  power  to 
sell  it,  was  in  fact  in  fraud  of  the  trustee 
and  only  a  pledge  for  the  attorney's  indi- 
vidual indebtedness,  is  not  imputed  to  a  cus- 
todian of  the  stock  who  permitted  the 
transfer,  merely  because  the  national  bank 
had  no  power  to  purchase  such  stock.  Peck 
V.  Providence  Gas  Co.  17  R.  I.  275,  23  Atl. 
967,  15:643 

410.  When  an  executor  attempts  to  trans- 
fer on  the  books  of  the  corporation  stock  of 
his  testator  to  a  legatee  the  corporation  is 
charged  with  a  knowledge  of  the  contents 
of  the  will,  and  bound  to  see  that  any 
trust  provisions  in  the  will  are  carried  out. 
Wooten  V.  Wilmington  &  W.  R.  Co.  128  N. 
C.  119,  38  S.  E.  298,  56:  615 

411.  Before  a  corporation  can  safely  per- 
mit a  transfer,  upon  its  books,  of  stock 
which  belonged  to  a  deceased  person,  and 
which  it  knows  has  been  directed  by  order 
of  court  to  be  sold  by  the  administrator 
at  private  sale,  it  should  ascertain  whether 
or  not  such  a  sale  has  been  made  under 
the  order  as  vests  title  in  the  purchaser. 
If  it  fails  to  do  so,  it  is  liable  to  make 
good  any  loss  occasioned  by  its  permitting 
the  transfer.  Citizens  Street  R.  Co.  v.  Rob- 
bins,  128  Ind.  449,  26  N.  E.  116,         12:  498 

412.  The  custodian  of  stock  held  by  a 
trustee  who  has  power  to  sell  it  in  his 
discretion  is  not  liable  for  permitting  a 
transfer  of  the  stock  by  a  duly  empowered 
attorney  of  the  trustee,  although  the  trans- 
fer was  in  fact  in  fraud  of  the  trustee  and 
to  secure  an  individual  indebtedness  of 
the  attorney,  if  such  custodian  had  no 
knowledge  of  the  wrong.  Peck  v.  Providence 
Gas  Co.  17  R.  T.  275,  23  Atl.  967,       15:  643 

413.  It  is  not  the  duty  of  a  corporation 
to  inquire  whether  or  not  a  person  who 
has  possession  of  stock,  with  a  power  of  at- 
torney from  the  stockholder  to  transfer  it, 
has  defrauded,  or  intends  to  defraud,  his 
principal  when  he  applies  for  a  transfer  of 
the  stock  to  himself.  Tafft  v.  Presidio  & 
F.  R.  Co.  84  Cal.  131,  24  Pac.  430,         11:  125 

414.  A  by-law  requirement  that  the  cer- 
tificate shall  be  indorsed  before  the  stock  is 
transferred  is  for  the  benefit  of  the  cor- 
poration, and  does  not  make  it  the  duty  of 
the  corporation  to  a  stockholder  who  has 
placed  his  stock  in  the  possession  of  an 
agent  with  a  power  of  attorney  to  transfer 
it,  to  insist  on  such  indorsement.  Id. 
Tiansfer  of  stock  held  in  trust. 

See  also   suprn.  400-414;   infra,  421^23. 
For    Editorial    Xotes,    see    infra,     Vlil.    § 
29. 

415.  It  is  actionable  negligence  for  a  cor- 
poration to  cancel  a  certificate  and  trans- 
fer stock  on  the  signature  of  a  trustee  to 
the  assignment,  without  any  inquiry  for 
the  cestui  qiir  trust,  or  for  his  assent  to 
the  transfer.  Gevser-^farion  Gold  Min.  Co. 
V.  Stark,  45  C.  C.  A.  467,  106  Fed.  558, 

53:  684 

416.  A  corporate  record  and  certificate  of 


CORPORATIONS,   V,  c,  8. 


775 


ownership  of  stock  by  A.  B.,  trustee,  is 
notice  to  the  corporation  that  he  holds  it, 
without  the  power  of  disposition,  for  some 
cestui   que   trust.  Id. 

417.  A  sale  by  the  equitable  owner,  of  cor- 
porate stock  held  by  trustees,  under  a  trust 
agreement,  transfers  the  seller's  interest 
subject  to  the  execution  of  the  trust,  and  is 
not  within  the  provisions  of  Mass.  Pub. 
Stat.  chap.  78,  §  6,  which  render  vdid  every 
contract  for  the  sale  of  stock,  "unless  the 
party  contracting  to  sell  or  transfer  the 
same  is  at  any  time  of  making  the  contract 
the  owner  or  assi^ee  thereof,  or  authorized 
by  the  owner  or  assignee  or  his  agent  to 
sell  or  transfer"  the  same.  Dutchemin  v. 
Kendall,  149  Mass.  171,  21  N.  E.  242,  3:  784 
Pledgee's  rights. 

Pledgeor's  Failure  to  Disclose  Improved  Con- 
dition of  Corporation,  see  Fraud  and 
Deceit,   13. 

See  also  supra,  402;  infra,  442,  446,  673, 
674. 

For  Editorial  Notes,  see  infra,  VIU.  §  31. 

418.  A  purchaser  at  execution  sale  of  cor- 
porate stock,  with  notice  that  it  has  been 
pledged  to  a  third  person,  takes  subject  to 
the  rights  of  the  pledgee,  although  the 
pledge  has  not  been  entered  on  the  books  of 
the  corpoi'ation.  May  v.  Cleland,  117  Mich. 
45,  75  N.  W.  129,  44:  163 

419.  A  pledgee  of  stock  has  a  right  to 
cause  a  proper  entry  of  the  transaction  be- 
tween himself  and  his  pledgeor  to  be  entered 
upon  the  books  of  the  corporation  for  his 
protection,  although  the  contract  is  silent 
on  the  subject.  Spreckels  v.  Nevada  Bank, 
113  Cal.  272,  45  Pac.  329,  33:  459 

420.  A  pledgee  of  stock  is  not  entitled  to 
have  the  certificates  surrendered  and  new 
ones  issued  in  his  name  when  the  contract 
is  silent  on  the  subject,  since  the  statute  re- 
quiring an  entry  of  a  transfer  upon  the 
books  of  the  corporation  to  protect  the 
transferee  is  satisfied  by  entering  the  names 
of  the  pledgeor  and  pledgee,  the  number  or 
designation  of  the  shaves,  and  the  date  of 
the  transfer.  Avithout  the  cancelation  of 
the  certificates  and  the  issue  of  new  ones. 

Id. 

421.  A  signature  to  a  blank  transfer  of 
certificates  of  stock  plainly  showing  that  it 
is  made  by  a  guardian  of  infant  owners  will 
not  pass  a  good  title  to  one  who  takes 
them  before  any  transfer  on  the  books  of 
the  corporation  without  inquiry  and  merely 
as  a  pledge  for  a  debt  from  the  cashier  of 
a  bank  in  which  they  were  placed  for  safe 
keeping  but  from  which  they  were  felo- 
niouslv  taken  bv  the  cashier.  O'llerron  v. 
Gray,  168  Mass.  573,  47  N.  E.  429,        40:  498 

422.  A  pledge  by  a  trustee  of  shares  of 
stock  in  violation  of  the  trust  gives  no 
rights  to  a  pledgee  who  takes  them  with 
constructive  notice  of  the  trust.  First  Nat. 
Bank  v.  National  Broadway  Bank,  156  N.  Y. 
4.59.  51  N.  E.  398,  42:  139 

423.  An  examination  of  the  trust  instru- 
ment itself  is  required  for  the  protection 
of  one  who  takes  from  a  known  trustee  a 
pledge  of  shares  of  stock  to  secure  a  loan, 
at  the  request  of  one  who  untruly  claimed 


to  be  the  sole  beneficiary,  and  whom  an 
order  of  the  court  appointing  the  trustee  de- 
scribed as  "the  only  person  directly  in- 
terested in  the  trust,"  but  who  had  in 
reality  only  a  life  interest.  Id. 

Rights  of  transferee  generally. 
To  Dividends,  see  infra,  518,  519. 
Of  Forged  or  Fraudulent  Issue  of  S^ock,  see 

infra,  V.  d. 
See  also  supra,  354,  399-404;  infra,  490,  519, 

672. 
For  Editorial  Notes,  see  infra,  VIII.  §  28. 

424.  A  bona  fide  purchaser  of  corporate 
stock  acquires  no  greater  equities  than  be- 
longed to  his  assignor.  Clark  v.  American 
Coal  Co.  86  Iowa,  436,  53  N.  W.  291,    17:  557 

425.  No  discrimination  can  be  made  be- 
tween bona  fide  purchasers  of  the  stock  of  a 
corporation  or  company,  which  is  on  sale  in 
open  market,  as  to  the  right  to  perfect 
their  title  to  the  stock,  when  no  discretion- 
ary power  is  reserved  to  that  effect.  Rice 
v.  "Rockefeller,  134  N.  Y.  174,  31  N.  E.  907. 

17:  237 

426.  One  holding  a  bond  for  half  the 
share  in  the  proceeds  of  sales  to  which  a 
stockholder  in  a  corporation  formed  for 
establishing  a  summer  resort  will  be  en- 
titled has  no  such  interest  as  to  give  him 
a  voice  in  determining  the  policy  of  the 
company,  or  to  make  his  assent  to  or  dis- 
sent from  its  proposed  plans  material.  At- 
tornev  General  v.  Abbott,  154  Mass.  323, 
28KE.  346,  13:251 

427.  The  purchaser  of  shares  of  stock  on 
which  a  dividend  is  subsequently  declared, 
before  the  stock  is  actually  transferred,  can- 
not make  the  execution  of  an  order  for  the 
dividend  a  condition  of  completing  the  sale, 
although  the  dividend  belongs  to  him  as  a 
legal  incident  of  the  stock.  Phinizy  v.  Mur- 
ray, 83  Ga.  747,  10  S.  E.  358,  6:  426 
Purchasers  of  stolen  certificates. 

For  Editorial  Notes,  see  infra,  VIII.  §  19. 

428.  A  bona  fide  purchaser  of  certificates 
of  corporate  stock  standing  on  the  com- 
pany's books  in  the  name  of  the  former 
owner,  regularly  indorsed  by  him  in  blank, 
and  stolen  from  the  present  owner  without 
his  fault,  gets  no  title,  because  such  instru- 
ments are  not  negotiable.  East  Birming- 
ham Land  Co.  v.  Dennis,  85  Ala.  565,  5  So. 
317,  2:  836 

429.  The  title  of  the  true  owner  of  a  lost 
or  stolen  certificate  of  stock  in  a  corpora- 
tion may  be  asserted  against  anyone  sub- 
sequently obtaining  its  possession,  even  if 
the  holder  is  a  bona  fide  purchaser.  Knox 
V.  Eden  Musee  Americain  Co.  148  N.  Y.  441. 
42  N.  E.  988,  31 :  779 

2.  Prior  Right  of  Purchase. 

430.  A  by-law  giving  a  corporation  the 
first  right  to  purchase  stock  which  is  for 
sale  by  any  of  its  members  is  not  valid  un- 
der a  statute  specifying  several  subjects  up- 
on which  by-laws  may  be  enacted,  but  mak- 
ing no  reference  to  the  question  of  stock 
transfers.  Ireland  v.  Globe  Milling  &  R.  Co. 
19  R.  I.  180,  32  Atl.  921,  29:  429 

431.  Even  if  a  by-la^^^   of  a  corporation 


778 


CORPORATIONS,  V.  c,  8,  d. 


giving  the  board  of  directors  the  option  to 
take  the  shares  of  any  stockholder  who  de- 
sires to  sell  them  at  a  value  appraised  by 
themselves  may  be  invalid^  the  subscriber 
is  bound  by  his  agreement  which  adopts  the 
by-law.  New  England  Trust  Co.  v.  Abbott, 
162   Mass.   148,  38  N.   E.  432,  27:271 

432.  An  agreement  between  a  subscriber 
and  a  corporation,  to  the  efTect  that  the 
board  of  directors  shall  appraise  the  value 
of  his  shares  and  have  the  option  to  take 
them  at  that  value  in  case  of  any  transfer 
thereof,  is  not  against  public  policy.  Id. 

433.  An  offer  of  stock  for  appraisal  is  not 
necessary  to  permit  the  exercise  of  an 
option  of  the  corporation  to  take  the  stock 
under  an  agreement  making  it  the  duty  of 
an  executor  or  other  transferee  to  offer  the 
shares  for  appraisal  to  be  taken  at  the  elec- 
tion of  the  corporation.  Id. 

434.  A  contract  to  offer  stock  to  the  cor- 
poration at  the  lowest  price  at  which  the 
holder  is  willing  to  sell,  before  offering  it 
to  any  other  purchaser,  is  not  binding  in 
favor  of  the  corporation  when  it  was  made 
by  proposed  stockholders  before  the  cor- 
poration was  in  existence  as  a  legal  entity. 
Ireland  v.  Globe  Milling  &  R.  Co.  20  R.  I. 
190.  38  Atl.  116,  38:  299 

43.5.  A  corporation  cannot  enforce  a  con- 
tract between  proposed  incorporators  to  the 
effect  that  they  will  not  transfer  their 
stock  without  giving  the  option  of  ourchase 
to  the  corporation;  but  the  remedy,  if  any, 
for  breach  of  the  contrart,  would  be  a  per- 
sonal one  against  the  offending  stockholder. 

Id. 

436.  The  mere  issue  of  certificates  of 
stock  by  a  corporation  does  not  amount  to 
a  ratification  by  it  of  a  contract  made  be- 
fore it  came  into  existence  between  the 
pTT>T>n<!pf1  inoornnration  to  the  effect  tnat 
they  would  not  transfer  their  shares  with 
out'  giving  the  company  an  option  to  pur- 
chase them.  Id. 

437.  A  retransfer  of  shares  of  stock  to  the 
real  owner  by  one  in  whose  name  they  had 
been  issued  to  give  him  an  opportunity  to 
acquire  them,  but  who  did  not  choose  to 
do  so,  is  not  a  sale  of  them  within  the 
meaning  of  a  by-law  providing  for  an 
option  to  the  other  shareholders  or  the  cor- 
poration to  purchape  them  on  any  sale  of 
them.  Victor  G.  Bloede  Co.  v.  Bloede,  84 
Md.  129,  34  Atl.  1127,  33:  107 

438.  A  by-law  restricting  the  transfer  of 
shares  of  stock  without  first  giving  other 
stockholders  and  the  corporation  an  option 
to  purchase  it  at  a  price  named  is  unrea- 
sonable and  a  palpable  restraint  upon  the 
alienation  of  the  property.  Id. 

3.  Lien. 

Lien  on  Bank  Stock,  see  Banks,  12-15. 
Forpolnsure  of,  in  Eouity.  see  Eouitv.  4.1. 
Estopnel  as  to  Condition  for,  see  Estoppel. 

1.58. 
See  also  supra,  405,  406. 

439.  Under  Cal.  Civ.  Code,  §  324,  an  as- 
signment of  corporate  stock  is  not  valid  as 


to  third  persons  unless  it  is  entered  on  the 
books;  and  an  assignee  of  a  stock  certifi- 
cate of  a  bank  from  one  who  is  in  debt 
to  the  bank,  which  certificate  provides  that 
the  transfer  shall  not  be  entered  on  the 
books  until  the  holder  has  paid  all  he  owes, 
is  not  a  bona  fide  purchaser;  and  the  equit- 
able lien  held  by  the  bank  on  the  stock 
for  the  amount  due  it  from  the  original 
holder  is  retained  as  against  such  assignee, 
and  it  will  extend  to  subsequent  advances 
or  loans  made  to  the  assignor,  where  the  as- 
signee gives  no  notice  of  the  assignment. 
Jennings  v.  Bank  of  California,  79  Cal.  323, 
21  Pac.  852,  5:  233 

440.  The  fact  that  a  condition  in  a  stock 
certificate,  that  the  holder  can  have  no 
transfer  of  the  stock  on  the  books  until 
he  has  paid  all  he  shall  owe  the  corporation, 
inserted  without  authority  of  a  by-law  or 
vote  of  the  directors,  by  the  officers,  does 
not  make  it  invalid  on  that  account  as 
against  the  holder,  who  afterwards  bor- 
rows money,  as  the  oflicers  making  a  valid 
loan  are  supposed  to  have  authority  to  ar- 
range its  terms  and  conditions.  Id. 

441.  Where  a  bank  claims  an  equitable 
lien  on  stock  for  the  amount  of  a  loan  to 
the  holder,  under  a  condition  in  the  cer- 
tificate of  stock,  providing  that  it  shall  not 
be  transferable  until  the  holder  has  paid  all 
he  owes  to  the  bank,  the  lien  is  not  to  be 
deemed  waived  by  the  lending  of  the  money 
upon  the  personal  credit  of  the  stockholder, 
merely  upon  testimony  of  the  cashier  that, 
"if  a  party  i^  in  good  standing  we  do  not 
question  his  right  to  a  transfer.  We  waive 
it  by  transferring.  We  don't  pretend  to 
claim  the  right  to  refuse  a  transfer  against 
a  shareholder  in  good  credit."  Id. 

442.  A  corporation  having  knowledge  of 
a  prior  pledge  of  stock  cannot  extend  credit 
to  the  shareholder  and  rely  upon  its  lien 
as  against  him,  although  the  statute  pro- 
vides that  transfers  or  liens  affecting  the 
stock,  if  not  made  or  registered  upon  the 
books,  are  invalid  as  to  bona  fide  creditors 
or  subsequent  purchasers  without  notice. 
Birmingham  Trust  &  Sav.  Co.  v.  Louisiana 
Nat.  Bank,  99  Ala.  379,  13  So.  112,  20:  600 

d.  Forged  or  Fraudulent  Issue. 

Liability  of  Officers,  see  supra,  294. 
Rights  of  Purchaser  of  Stolen  Certificates, 

see  supra,  428,  429. 
Notice  of   Fraud,   see  Notice,  41. 
Proximate  Cause  of  Loss  of  Certificates,  see 

Proximate  Cause,  134. 
See    also    infra,    653. 
For  Editorial  Notes,  see  infra,  VIII,  §§  19, 

20,  28. 

443.  A  purchaser  of  a  certificate  of  stock 
in  open  market,  without  knowledge  of  any 
fraud  in  its  issue,  is  entitled  to  have  it 
transferred  to  him  on  the  books  of  the 
company  without  regard  to  the  facts  re- 
lating to  any  fraud  or  irregularity  in  its 
issnnnce.  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 
V.  Citizens'  Nat.  Bank,  66  Ohio  St.  351,  47 
N.  E.  249,  43:  777 


CORPORATIONS,  V.  d. 


777 


444.  A  purchaser  of  corporate  stock  re- 
ceiving new  certificates  therefor,  signed  by 
the  proper  officers,  although  issued  through 
their  fraud,  is,  if  he  acts  in  good  faith,  en- 
titled to  be  protected  as  a  bona  fide  pur- 
chaser. He  owes  no  duty  to  the  corporation 
to  see  to  it  that  the  seller  surrenders  any 
old  certificates,  and  transfers  them  on  the 
books  of  the  corporation.  Allen  v.  South 
Boston  R.  Co.  150  Mass.  200,  22  N.  E.  917, 

5:  716 

445.  That  a  certificate  of  stock  is  issued 
in  favor  of  the  secretary  of  the  corpora- 
tion is  not  sufficient  to  put  a  purchaser 
upon  inquiry  as  to  whether  he  is  rightfully 
the  owner,  where  no  other  mode  of  is- 
suing stock  than  by  the  president  or  the 
secretary  under  the  corporate  '^al  is  pro- 
vided, and  neither  the  secretary  nor  the 
president  is  prohibited  from  holding  stock. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Citizens' 
Nat.  Bank,  56  Ohio  St.  351,  47  N.  E.  249, 

43:  777 

446.  A  person  taking  in  pledge  a  certifi- 
cate of  stock  newly  issued  in  his  name,  as 
security  for  the  private  debt  of  an  officer 
of  a  corporation,  who,  either  alone  or  witn 
others,  has  power  to  issue  stock  certificates, 
is  required  to  investigate  the  title  to  the 
stock,  and  cannot  be  protected  as  an  in- 
nocent holder  if  the  stock  was  fraudulently 
issued.  Farrington  v.  South  Boston  R.  Co. 
150  Mass.  406,  23  N.  E.  109,  5:  849 

447.  One  who,  in  good  faith  and  without 
notice,  purchases  in  the  market  a  certificate 
of  stock  which  has  been  wrongfully  issued 
by  the  corporation  in  lieu  of  certificates 
which  belonged  to  a  decedent's  estate,  and 
which  were  not  legally  sold  and  disposed  of 
by  the  administrator,  receives  a  good  title 
as  against  the  decedent's  estate,  if  there 
was  nothing  on  the  face  of  the  certificate  to 
put  him  on  inquiry  or  to  give  him  notice  of 
the  infirmity  of  the  title.  Such  purchaser 
cannot  be  required  to  make  an  examination 
of  the  records  to  ascertain  the  validity  of 
the  title  before  he  can  safely  purchase  it. 
Citizens  Street  R.  Co.  v.  Robbins,  128  Ind. 
449,  26  N.  E.  116,  12:  498 
Liability  of  corporation. 

For  Editorial    Notes,  see  infra,  VITI.  §  20. 

448.  A  corporation  is  not  negligent  in 
permitting  its  president  to  continue  in 
office  and  have  access  to  its  certificate  book 
and  seal,  so  as  to  make  it  liable  for  his 
act  in  issuing  forged  certificates  of  stock, 
by  reason  of  his  former  misconduct  in  pledg- 
ing his  own  shares  to  another  person  in 
violation  of  an  agreement  to  pledge  them  to 
an  associate.  Hill  v.  C.  F.  Jewett  Pub.  Co. 
154  Mass.  172,  28  N.  E.  142,  13:  193 

449.  The  forgery  of  the  necessary  signa- 
ture of  the  secretary  to  certificates  of  stock, 
by  the  president  of  a  corporation,  whose 
only  authority  as  to  the  issue  of  certifi- 
cates is  to  sign  them,  does  not  make  the 
corporation  liable  therefor  to  holders  who 
took  them  in  private  and  personal  trans- 
actions with  the  president.  Id. 

450.  Permitting  surrendered  certificates  of 
stock  to  remain  uncanceled  in  the  safe  of 


the  corporation  to  which  an  employee  has 
access,  and  relying  upon  him  to  cancel  the 
certificates  as  tie  was  directed  to  do,  is  not 
such  negligence  as  will  make  the  corpora- 
tion liable  for  his  fraudulent  use  of  them 
to  secure  a  personal  loan  about  three  weeks 
later,  if  the  company  did  not  know  or  have 
reason  to  suspect  that  he  was  dishonest,  al- 
though a  by-law  requiring  the  cancelation 
of  the  surrendered  certificates  was  not  com- 
plied with.  Knox  v,  Eden  Musee  Americian 
Co.  148  N.  Y.  441,  42  N.  E.  988,     31 :  779 

451.  Directing  an  employee  to  cancel  sur- 
rendered certificates  of  stock  does  not  give 
him  any  authority,  expressed  or  implied, 
to  act  as  agent  in  issuing  them,  so  as 
to  bind  the  corporation  by  nis  wrongful  use 
of  them  to  secure  a  personal   loan.         Id. 

452.  A  corporation  may  be  held  liable  in 
damages  for  a  fraud  of  its  officers  in  issuing 
stock,  where  it  cannot  be  compelled  to  issue 
valid  shares  in  place  of  those  fraudulently 
issued,  for  the  reason  that  this  would  cause 
an  overissue  of  its  capital  stock.  Allen  v. 
South  Boston  R.  Co.  150  iviass.  200,  22  N.  E. 
917,  5:  716 

453.  A  corporation  is  liable  to  a  bona 
fide  holder  of  forged  certificates  of  stock 
regular  on  their  face,  but  fraudulently  is- 
sued by  its  secretary,  who  was  also  the 
treasurer  and  transfer  agent  of  the  com- 
pany, and  who  countersigned  them  in  his 
official  capacity  after  forging  the  signature 
of  the  president.  Fifth  Ave.  Bank  v.  Forty- 
second  Street  &  G.  Street  Ferry  R,  Co.  137 
N.  Y.  231,  33  N.  E.  3/8,  19:  331 

454.  A  corporation  is  liable  in  damages 
to  anyone  purchasing  for  value,  without 
notice,  spurious  stock  issued  by  reason  of 
its  neglect  to  observe  care  in  the  issue  of 
the  certificates  of  stock  and  supervise  its 
agent  charged  with  the  performance  of 
such  duty.  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  v.  Citizens'  Nat-  Bank,  56  Ohio  St.  351, 
47  N.  E.  249,  43:  777 

455.  Information  that  a  certificate  of 
stock  is  in  a  condition  for  transfer,  given 
by  a  person  in  cuarge  of  the  office  of  a  cor- 
poration in  response  to  an  inquiry,  on  the 
faith  of  which  a  broker  guaranteed  its 
genuineness,  estops  the  corporation  from 
denying  its  liability  to  indemnify  him  or  his 
assignee  against  loss  on  account  of  the  fact 
that  the  certificate  was  spurious  and  worth- 
less. Jarvis  v.  Manhattan  Beach  Co.  148 
N.  Y.  652,  43  N.  E.  68,  31:776 

456.  A  corporation  which  transfers  shares 
of  stock  on  the  surrender  of  the  original 
certificates  and  the  supposed  authority  of 
powers  of  attorney  from  executors  whose 
signatures  were  forged  is  not  relieved  from 
liability  to  the  estate  by  reason  of  the  fact 
that  the  forgery  was  committed  by  a  son 
of  one  of  the  executors,  who  had  been  in- 
trusted with  a  key  to  the  box  in  which  the 
shares  were  kept,  when  there  was  nothing 
to  show  that  his  father  had  not  reason  to 
suppose  him  trustworthy.  Pennsylvania  Co. 
for  Ins.  etc.  v.  Franklin  Fire  Ins.  Co.  181 
Pa.  40,  37  Atl.  191,  37:  780 


778 


CORPORATIONS,  V.  e.  1. 


e.  Right  of  Shareholders. 
1.  In  General. 

Ratification  of  Contract  by  Stockholders, 
see  supra,  187-191,  273,  274. 

Rights  of  Transferee,  see  supra,  V.  c, 
1. 

Rights  of,  at    Stockholders    Meetings,    see 
infra,  V.  g,  1. 
•  Right  to  Vote,  see  infra,  V.  g,  2. 

Preference  to,  in  Case  of  Insolvency,  see 
infra,  789,  790,  803,  804. 

Right  to  Subscribe  for  New  Stock,  see 
Union  Depot  Company,  1. 

Vested  Right  to  Elect  Directors,  see  Con- 
stitutional Law,   138. 

Insurable  Interest  of  Stockholder,  see  In- 
surance, 135. 

Insurance  of  Corporate  Property  by,  see 
Insurance,   342. 

In  Case  Corporate  Existence  is  not  Ac- 
quired, see  Partnership,  19. 

Competency  of  Stockholder  as  Juror,  see 
Jury,  89. 

Competency  of  Stockholder  as  Witness,  see 
Witnesses,   59. 

See  also  supra,  52,  62,  119,  120,  175,  213,  218, 
219,  241,  244,  263,  265,  271-273,  278,  in- 
fra, 717;    Warehousemen,  3b. 

For  Editorial  Notes,  see  infra,  VIII.  § 
32. 

Preferred  stockholders. 

As  to  Preferred  Stock  Generally,  see  supra, 
364-367. 

Retirement  of  Preferred  Stock,  see  supra, 
368. 

Dividends  on,  see   infra,  520-524. 

See  also  infra,  646. 

For  Editorial  Notes,  see  infra,  VIII.  §  24. 

457.  The  holder  of  preferred  stock,  even 
if  it  was  issued  in  compromise  of  a  debt  of 
the  corporation  to  him,  is  a  stockholder, 
and  not  a  creditor,  under  a  statute  giving 
the  holders  of  such  stock  all  the  privileges 
of  other  members  of  the  corporation,  in- 
cluding the  right  to  vote  upon  the  stock. 
.Field  V.  Lamson  &  G.  Mfg.  Co.  162  Mass. 
388,  38  N.  E.  1126,  27:  136 

458.  Rents  collected  by  receivers  of  a 
corporation  are  not  included  in  a  lien  given 
to  preferred  shareholders  on  the  company's 
franchises  and  property.  Heller  v.  Na- 
tional Marine  Bank,  89  Md.  602,  43  Atl. 
800,  45:  438 

459.  The  priority  over  "any  subsequently 
created  mortgage  or  other  encumbrance,' 
given  to  preferred  shareholders  by  Md. 
Code,  art.  23,  §  294,  extends  to  unsecured 
claims  over  which  subsequent  mortgages 
would  have  preference.  Id. 

460.  Articles  produced  by  a  corporation 
for  sale  are  not  subject  to  the  lien  on  the 
franchises  and  property  of  the  company 
given  by  Md.  Code,  art.  23,  §  294.  Id. 

461.  Insurance  collected  by  receivers  for 
buildftigs,  machinery,  and  stock  in  trade 
that  were  burned  is  not  subject  to  the  lien 
of  preferred  sharehoklprs  given  by  statute 
on  the  franchi&es  and  property  of  the  com- 
pany. Id. 


462.  Certificates  of  "preferred,  nonvoting 
capital  stock"  declared  to  constitute  "a  lien 
upon  the  property  and  net  earnings  of  the 
company  next  after  the  company's  existing 
first  mortgage,"  with  a  provision  for  "in- 
terest," which  is  "only  payable  out  of  the 
net  earnings,"  and  which  is  "not  to  accumu- 
late as  a  charge,"  but  the  coupons  therefor 
must  be  surrendered  and  canceled  on  the 
payment  in  whole  or  in  part  of  a  subse- 
quently maturing  coupon,  do  not  make  the 
holders  thereof  creditors  of  the  corporation 
who  are  entitled  to  any  part  of  the 
capital  until  all  debts  are  paid  or  provided 
for,  although  they  may  give  them  a  prefer- 
ence over  common  stockholders  in  relation 
to  both  dividends  and  capital  Hamlin  v. 
Toledo.  St.  L.  &  K.  C.  R.  Co.  24  C.  C.  A.  271, 
47  U.  S.  App.  422,  78  Fed.  604,  36:  826 
Minority  stockholders. 

463.  The  utmost  good  faith  toward  the 
minority  stockholders  must  be  exercised  by 
the  majority,  in  the  control  and  manage- 
ment of  the  property.  Miner  v.  Belle  Isle 
Ice  Co.  93  Mich.  97,  53  N.  W.  218,  17:  412 
Fiduciary  relation. 

464.  Stockholders  who  combine  to  consti- 
tute themselves  a  majority  in  order  to  con- 
trol the  corporation  as  they  see  fit  become 
for  all  practical  purposes  the  corporation 
itself,  and  assume  the  trust  relation  oc- 
cupied by  the  corporation  toward  its  stock- 
holders. Miner  v.  Belle  Isle  Ice  Co.  9:J  Mich. 
97,  53  N.  W.  218,  17:412 
Stock  sold  for  assessments. 

465.  The  rights  of  a  purchaser  of  delin- 
quent stock  sold  for  assessments  must  be 
determined  by  the  general  law,  if  no  pro- 
vision therefor  is  made  by  the  charter  or 
by-laws,  and  general  provisions  of  a  by- 
law as  to  transfer  of  shares  of  stock  do  not 
applv.  Fpurgeon  v.  Santa  Ana  Vallev  Irrig. 
Co.  120  Cal.  71,  52  Pac.  140,  ?9:  701 
To  contract,  or  convey  property. 

466.  Stockholders,  as  such,  have  no  title 
to  the  corporate  property  which  they  may 
convey  or  encumber  in  their  own  name,  as 
the  corporation  must  act  through  its  prop- 
er agents  and  in  the  prescribed  way.  Home 
F.  Ins.  Co.  V.  Barber,  67  Neb.  644,  93  N.  W. 
1024,  60:  927 

467.  A  sole  stockholder  of  a  corporation 
has  no  title,  legal  or  equitable,  to  its  prop- 
erty, which  he  can  convey  by  a  deed  in  his 
own  name.  Parker  v.  Bethel  Hotel  Co.  96 
Tenn.  252,  34  S.  W.  209,  31:  706 

468.  A  contract  between  persons  who  are 
equal  owners  of  all  the  stock  of  a  corpora- 
tion except  two  shares,  of  which  one  is  con- 
trolled by  each  of  them,  by  which  they  as- 
sume to  divide  and  dispose  of  the  property 
of  the  corporation,  is  not  obligatory  upon 
the  corporation.  Sellers  v.  Greer,  172  111. 
549,  50  N.  E.  246,  40:  589 

469.  A  stockholder  has  no  implied  au- 
thority to  make  a  contract  for  the  corpora- 
tion merely  because  he  owns  a  large  ma- 
jority of  the  stock  and  has  power  thereby 
to  select  and  control  the  board  of  directors. 
Jones  V.  Williams,  139  Mo.  1,  39  S.  W.  486, 
40  S.  W.  353.  37:  682 

470.  A    stockholder   canont    transfer    the 


CORPORATIONS,   V.  e,  2. 


779 


good  will  of  the  corporation  with  his  stock 
witliin  the  meaning  of  a  statute  permitting 
one  who  sells  the  good  will  of  a  business  to 
agree  to  refrain  from  carrying  on  similar 
business  within  a  limited  territory  for  a 
specified  time.  Merchants'  Ad-Sign  Co.  v. 
Sterling,  124  Cal.  429,  57  Fac.  468,  46:  142 
Division  of  assets  among  stockholders. 
See  also  infra,  485. 

471.  Representatives  of  the  deceased 
stockholders  of  a  bank  whose  charter  has 
expired  by  limitation  are  entitled  to  the 
proceeds  of  an  insurance  policy  held  as 
collateral  by  the  bank,  to  the  extent  of 
the  debt,  under  a  statute  permitting  stock- 
holders to  attach  corporate  property  and 
have  any  surplus  above  debts  divided  among 
them.  Connecticut  Mut.  L.  Ins.  Co.  v.  Duns- 
comb,  108  Tenn.-724,  69  S.  W.  345,  58:  694 

472.  A  division  cannot  be  made  among 
stockholders  of  a  California  corporation, 
prior  to  dissolution  or  expiration  of  the 
term  of  corporate  existence,  of  the  stock  of 
a  new  corporation  to  which  it,  in  common 
with  a  foreign  corporaMon,  has  transferred 
its  property  for  the  purpose  of  uniting  their 
conflicting  interests,  even  if  such  division 
was  unanimously  agreed  upon  by  all  the 
stockholders,  and  among  those  of  the  foreign 
corporation  has  actually  been  made,  as  Cal. 
Civ.  Code,  §  309,  prohibits  payment  to  the 
stockholders  of  any  part  of  the  capital 
stock  before  dissolution  or  expiration  of 
the  term  of  corporate  existence,  and  the 
stock  of  the  new  corporation  received  in  ex- 
change for  their  property  is  included  in  the 
term  "capital  stock."  Kohl  v.  Lilienthal,  81 
Cal.  378,  22  Pac.  689,  6:  520 

2.  Actions  by. 

Costs  in,  see  Costs  and  Fees,  2,  51,  52. 

To  Cancel  Assessments,  see  Insurance,  676. 

Effect  of  Judgment  Against  Other  .Stock- 
holder, see  Judgment,  293. 

Without  Joining  Corporation  as  Party,  see 
Parties,   156,   157. 

For  Appointment  of  Receiver,  see  Receivers, 
24,  35-38. 

See  also  supra,  89;  infra,  517,  757. 

For  Editorial  Notes,  see  infra,  VIII.  §§  18, 
32,  51. 

473.  A  corporation,  instead  of  its  stock- 
holders, should  sue  for  the  avails  of  a  secret 
agreement  between  a  promoter  and  one  from 
whom  the  corporation  purchases  property. 
Yale  Gas  Stove  Co.  v.  Wilcox,  64  Conn.  101, 
29   Atl.    303,  25:  90 

474.  Individual  stockholders  of  a  corpora- 
tion cannot  question  in  judicial  proceedings 
corporate  acts  of  directors  if  the  same  are 
within  the  powers  of  the  corporation'  and 
in  furtherance  of  its  purposes,  and  are  not 
luilawful  or  against  good  morals,  and  are 
performed  in  good  faith  and  in  the  exercise 
of  an  honest  judgment.  Hodge  v.  United 
States  Steel  Corp.  (N,  J.  Err.  &  App.)  64 
X.  J.   Eq.   807,  54  Atl.    1,  60:  742 

475.  A  court  of  equity  has  no  power  to 
interpose  its  authority  for  the  purpose  of 
adjusting    controversies    that    have    arisen 


among  the  shareholders  or  directors  of  a 
corporation  relative  to  tlic  proper  mode  of 
conducting  the  corporate  business.  Repub- 
lican Mountain  Silver  Mines  v.  Brown,  19 
U.  S.  App.  203,  7  C.  C.  A.  412,  58  Fed.  644, 

24:  776 

476.  A  stockholder  in  a  corporation  can- 
not successfully  invoke  the  power  of  a 
chancery  court  to  control  its  officers  or 
board  of  managers  or  to  wrest  the  cor- 
porate property  from  their  charge,  through 
the  agency  of  a  receiver  so  long  as  they 
neither  do  nor  threaten  to  do  any  fraudu- 
lent or  ultra  vires  acts,  and  so  long  as  they 
keep  within  the  limits  of  by-laws  which 
have  been  prescribed  for  their  governance. 

Id. 

477.  A  minority  stockholder  cannot  in- 
voke the  jurisdiction  of  equity  for  himself 
and  those  who  may  subsequently  join  him, 
to  prevent  the  majority  stockholders  from 
making  a  contract  which  is  neither  ultra 
vires,  fraudulent,  nor  illegal.  Shaw  v.  Da- 
vis. 78  "Md.  30S.  28  Atl.  619,  23:  294 

478.  The  fact  that  the  same  persons  con- 
stitute the  majority  stockholders  in  each 
of  two  companies  does  not  enlarge  the  ju- 
risdiction of  equity  to  interfere  with  the 
management  of  one  of  those  corporations 
in  its  relation  with  the  other,  at  the  suit 
of  a  minority  stockholder.  Id. 

479.  On  complaint  of  minority  stock- 
holders the  court  will  intervene  to  protect 
their  interests,  where  the  majority  of  the 
stockholders  of  a  corporation,  who  were 
also  the  sole  managers  of  its  business,  have 
gone  on,  over  the  protest  of  the  minority, 
and  dealt  with  themselves;  and  the  court 
cannot  approve  the  basis  upon  which  the 
business  has  been  carried  on,  even  though 
its  intervention  involves  reforming  the  con- 
tract between  the  corporation  and  the 
majority  of  stockholders,  or  revising  the 
basis  for  the  apportionment  of  the  profits 
of  the  business.  Crichton  v.  Webb  Press 
Co.  113  La.  167,  36  So.  926,  67:  76 

480.  A  private  sale  of  its  property,  made 
by  a  corporation  which  is  unable  to  go  on 
with  its  business,  will  not  be  disturbed 
at  the  suit  of  a  minority  stockholder,  and 
a  sale  ordered  at  public  auction,  merely  be- 
cause he  deems  that  the  agreed  price  is  in- 
adequate and  that  part  of  the  property  is 
worth  more  than  the  price  at  which  it 
is  scheduled,  where  he  does  not  show 
that  more,  or  even  as  much,  would  be  of- 
fered for  the  whole  property  if  sold  at 
auction.  Phillips  v.  Providence  Steam 
Engine  Co.  21  R.  I.  302,  43  Atl.  598,  45:  560 

481.  If  the  action  of  a  majority  of  the 
stockholders  of  a  corporation  resulting 
from  their  votes  at  a  stockholders'  meet- 
ing is  so  detrimental  to  the  interests  of 
the  corporation  itself  as  to  lead  to  the 
necessary  inference  that  their  interests  lie 
wholly  outside  of  and  in  opposition  to 
those  of  the  corporation  and  of  the  minor- 
ity of  the  stockholders,  and  that  their  ac- 
tion is  a  wanton  or  a  fraudulent  destruc- 
tion of  the  rights  of  such  minority,  it  may 
be  subjected  to  the  scrutiny  of  a  court  of 
equity  at  the  suit  of  the  minority.     Gam- 


780 


CORPORATIONS,  V.  e,  8. 


ble  V.  Queens  County  Water  Co.  123  N.  Y. 
91,   25   N.   E.   201,  9:  527 

4S2.  Equity  will  not  prevent  the  major- 
ity of  the  stockholders  of  a  corporation 
from  pursuing  a  certain  course  of  action, 
at  the  suit  of  the  minority,  simply  upon 
the  allegation  that  such  action  will  in- 
volve the  corporation  in  litigation.  Con- 
verse V.  Hood,  149  Mass.  471,  21  N.  E.  878, 

4:  521 

483.  To  warrant  the  interposition  of  a 
court  in  favor  of  the  minority  sharehold- 
ers in  a  corporation  or  joint-stock  associa- 
tion, as  against  the  contemplated  action  of 
the  majority,  where  such  action  is  within 
the  corporate  powers,  a  case  must  be  made 
out  which  plainly  shows  that  such  action 
is  so  far  opposed  to  the  true  interests  of 
the  corporation  itself  as  to  lead  to  the 
clear  inference  that  no  one  thus  acting 
could  have  been  influenced  by  any  honest 
desire  to  secure  such  interests,  but  that  he 
must  have  acted  with  an  intent  to  subserve 
some  outside  purpose,  regardless  of  the  con- 
sequences to  the  company,  and  in  a  manner 
inconsistent  with  its  interest.  Gamble  v. 
Queens  County  Water  Co.  123  N.  Y.  91,  2.5 
N.  E.  201,  _  9:  527 

484.  An  accounting  at  the  suit  of  share- 
holders cannot  be  granted  on  the  ground 
that  the  affairs  of  a  corporation  are  di- 
rected by  a  controlling  stockholder  in  the 
interest  of  another  corporation  of  which 
he  is  president,  and  that  all  the  officers 
and  directors  are  subject  to  his  absolute 
control  and  direction,  where  there  is  noth- 
ing to  show  fraud  in  the  management  of 
the  affairs  of  the  corporation,  or  even  that 
the  manner  of  conducting  its  business  has 
not  been  wise,  although  the  corporation  is 
insolvent  and  all  the  product  of  its  busi- 
ness has  been  purchased  by  the  other  com- 
pany. Wheeler  v.  Pullman  Iron  &  S.  Co. 
]43"lll.    197,   32   N.   E.  420,  17:818 

485.  The  donation  by  trustees  of  an  in- 
corporated benevolent  association  to  each 
member,  in  pursuance  of  a  unanimous  vote 
of  the  members  present  at  a  meeting  when 
the  vote  was  taken,  of  a  certain  sum  for 
past  services,  wnen  no  services  had  been 
rendered  other  than  such  as  the  parties 
were  bound  to  render  as  members,  is  a 
misappropriation  of  corporate  funds,  the 
restoration  of  which  may  be  compelled  by  a 
member  who  was  not  a  party  to  the  trans- 
action. Ashton  V.  Dashaway  Asso.  84  Cal. 
61,   62,  23   Pac.   lOOl,  7:  809 

486.  Holders  of  stock  in  a  corporation 
the  property  of  which  has  been  sold  can- 
not maintain  a  suit  to  enforce  a  trust  in 
such  property  for  their  own  benefit  on  the 
theory  that  the  directors  of  the  company 
were  guilty  of  fraud  in  disposing  of  it. 
Hearst  v.  Putnam  Min.  Co.  28  Utah.  184. 
77  Pac.  753,  66:  784 

487.  Stockholders  who  are  officers  of  a 
corporation  may  be  compelled,  upon  a  bill 
properly  framed,  to  pay  directly  to  other 
stockholders  their  share  of  money  which 
the  officers  have  fraudulently  retained  as 
salaries.  Eaton  v.  Robinson,  19  R.  I.  146, 
31  Atl.  1058,  29:  100 


488.  Where  the  action  of  the  majority 
of  the  shareholders  of  a  corporation  is 
plainly  a  fraud  upon,  or  is  really  oppressive 
to,  the  minority  shareholders,  and  the  di- 
rectors and  trustees  have  acted  with  and 
formed  part  of  the  majority,  a  suit  to  en- 
join such  action  may  be  maintained  by  one 
of  the  minority  shareholders  suing  in  his 
own  behalf  and  in  that  of  all  others  com- 
ing in,  to  which  suit  the  corporation  must 
be  made  a  party  defendant.  Gamble  v. 
Queens  County  Water  Co.  123  N.  Y.  91,  25 
N.  E.  201,  9:  527 

489.  A  stockholder  has  the  right  to  main- 
tain a  suit  to  enjoin  the  corporation  from 
entering  an  illegal  trust,  where  the  effect 
will  be  to  subject  the  charter  to  forfeiture, 
and  destroy  the  value  of  the  stock,  since 
it  will,  in  any  event,  close  down  the  busi- 
ness of  the  corporation,  and  prevent  the 
further  earning  of  profits.  Harding  v. 
American  Glucose  Co.  182  111.  551,  55  N.  E. 
577,  64:  738 
Persons  acquiring  stock  after  acts  com- 
plained of. 

490.  Stockholders  who  have  acquired 
their  shares  and  their  interest  in  the  cor- 
poration from  alleged  wrongdoers,  and 
through  prior  mismanagement,  have  no 
standing  to  complain  thereof.  Home  F.  Ins. 
Co.  V.  Barber,  67  Neb.  644,  93  N.  W.  1024, 

60:  927 

491.  Subsequent  stockholders  have  no 
standing  to  attack  prior  mismanagement 
of  the  corporation;  unless  such  misman- 
agement or  its  effects  continue  and  are  in- 
jurious to  them  specially  and  peculiarly  in 
some  other  manner.  Id. 

492.  Stockholders  in  a  corporation  who 
are  injured  by  the  mismanagement  thereof 
may,  if  they  so  elect,  acquiesce  in  and  treat 
such  transactions  as  binding,  where  they 
are  not  absolutely  void,  and  the  discre- 
tion to  acquiesce  therein  or  bring  suit  to 
set  them  aside  cannot  be  transferred.  Id. 
Excessive  price  paid  for  property. 

493.  In  determining  the  question  whether 
or  not  the  price  paid  by  a  corporation  to 
one  of  its  directors  for  property  owned 
by  him,  by  direction  of  a  majority  of  the 
shareholders,  of  which  he  was  one,  is  so 
excessive  as  to  constitute  a  fraud  on  the 
rights  of  the  minority,  the  value  of  the 
time  and  the  interest  on  the  money  which 
he  has  expended  thereon  may  be  added  to 
its  cost,  and  he  may,  in  addition,  be  al- 
lowed a  fair  profit  thereon,  and  whatever 
advantage  he  may  have  gained  by  a  for- 
tunate purchase  of  materials  used.  Gam- 
ble V.  Queens  County  Water  Co.  123  N.  Y. 
91,  25  N.  E.  201,  9:  527 

494.  The  true  inquiry,  in  determining 
whether  or  not  the  price  paid  by  a  majority 
of  the  stockholders  of  a  corporation  for 
property  is  so  excessive  as  to  be  a  fraud 
on  the  minority,  is  what,  under  all  the  cir- 
cumstances, is  the  fair  value  of  the  prop- 
erty to  the  company,  considering  its  pro- 
posed use  and  the  general  purpose  for 
which  the  company  is  organized.  Id. 

495.  An  order  by  a  majority  of  the  stock- 
holders of  a  corporation   to  pay   an   exces- 


CORPORATIONS,  V.  e,  3. 


781 


eive  sum  for  orooerty  purchased  for  it,  in 
stock  and  bonds,  is  not  to  be  condemned 
as  a  fraud,  unless  the  majority  acted  in 
bad  faith,  on  which  question  possible  or 
probable  prospective  value  of  the  property 
purchased  may  be  considered.  Id. 

Against  other  corporation  or  its  ofHcera. 

496.  A  stockholder  of  one  corporation 
cannot  enjoin  another  corporation  from  in- 
fringing the  trademark  and  interfering 
with  the  business  of  the  former.  Converse 
V.  Hood,  149  Mass.  471,  21  N.  E.  878, 

4:  521 

497.  A  suit  cannot  be  maintained  by  a 
stockholder  of  one  corporation,  solely  for 
his  individual  benefit,  against  a  director  of 
another  corporation,  to  enjoin  an  infringe- 
ment by  the  latter  corporation  of  the  trade 
name  or  trademark  of  the  former.*  Id. 

498.  No  duty  which  can  be  enforced  in 
equity  on  the  part  of  an  officer  of  one  cor- 
poration in  favor  of  a  stockholder  of  an- 
other corporation,  to  abstain  from  using 
the  trademarks  of  the  latter  corporation, 
arises  from  the  relation  of  the  parties  as 
officers  and  members  of  such  corporations. 

Id. 
Effort  to  procure  action  by  corporation. 

499.  A  minority  stockholder  can  bring  a 
suit  in  equity  for  relief  without  showing 
any  request  to  the  directors  or  refusal 
by  the  corporation,  where  the  directors  are 
themselves  the  wrongdoers.  Miner  v.  Belle 
Isle  Ice  Co.  93  Mich.  97,  53  N.  W.  218, 

17:  412 

500.  A  stockholder  may,  without  con- 
sulting the  directors,  bring  an  action  to 
enjoin  them  from  unlawfully  transferring 
the  stock  to  a  consolidated  corporation. 
Botts  v.  Simpsonville  «&  B.  C.  Turnp.  Co. 
88  Ky.  54,   10   S.  W.   134,  2:  594 

501.  A  stockholder  of  a  corporation  may 
bring  an  action  on  behalf  of  himself  and 
others  who  shall  come  in  and  become  par- 
ties, to  prevent  the  officers  and  a  majority 
of  the  stockholders  of  the  corporation  from 
dealing  wrongfully  with  the  corporate"  prop- 
erty to  the  injury  of  stockholders,  where 
it  is  reasonably  certain  that  a  demand  up- 
on the  proper  officers  to  bring  the  action 
would  be  unavailing.  Harding  v.  American 
Glucose  Co.  182  111.  551,  55  N.  E.  577, 

64:  738 

502.  No  prior  application  to  the  corporate 
officers  for  redress  is  necessary  before  suit 
by  a  stockholder  for  the  appointment  of 
a  receiver  of  an  insolvent  corporation, 
where  the  wrongdoing  and  fraud  of  the 
officers  themselves  is  the  ground  of  the  ap- 
plication. Supreme  Sitting  O.  of  I.  "H.  v. 
Baker,  134  Ind.  293,  33  N.  E.  1128,    20:  210 

503.  A  demand  on  the  trustees  of  a  cor- 
poration to  restore  funds  misapplied  is  not 
necessary  before  an  action  by  a  member  to 
compel  such  restoration,  where  the  trus- 
tees themselves  were  parties  to  the  un- 
lawful transaction,  and  contest  the  action 
on  the  grormd  that  their  acts  were  right- 
ful. Ashton  V.  Dashaway  Asso.  84  Cal. 
61,  62,  23  Pac.   1091,  7:  809 

504.  An  averment  of  refusal  by  the  of- 
ficers   of    a    corporation,    upon    request,   to 


take  appropriate  legal  proceedings  to  pre- 
vent the  unlawful  voting  of  corporate  stock, 
will  authorize  the  entertainment  of  a  suit 
by  stockholders  in  their  own  names  for 
the  accomplishment  of  that  object.  Mem- 
phis &  C.  R.  Co.  V.  Woods,  88  Ala.  630, 
7  So.  108,  7:  605 

505.  Before  a  stockholder  of  a  corpora- 
tion can  maintain  a  bill  in  his  own  name 
to  restrain  a  rival  corporation,  which  has 
acquired  a  majority  of  the  stock  of  the 
other,  from  voting  such  stock  at  a  stock- 
holders* meeting,  he  must  request  the 
bringing  of  a  suit  by  and  in  the  name  of 
the  corporation  itself,  unless  it  is  manifest 
that  such  request,  if  made,  would  be  de- 
nial. Hence  a  bill  which  shows  that  the 
board  of  directors  consists  of  seven  mem- 
bers, of  whom  three  were  elected  and  are 
controlled  by  the  rival,  while  the  others  are 
independent  of  its  control  except  one,  who 
is  alleged  to  have  been  a  director  before 
the  interest  of  the  rival  was  acquired,  and 
to  have  no  interest  in  either  corporation,  is 
fatally  defective,  unless  it  avers  a  pre- 
vious request  for  a  suit  by  the  directors 
in  the  name  of  the  corporation,  notwith- 
standing an  allegation  that  such  director 
holds  his  stock  and  acts  in  all  things  in  the 
interest  of  the  rival.  Mack  ▼.  DeBardele- 
ben  Coal  &  I.  Co.  90  Ala.  396,  8  So.  150, 

9:  650 

3.  Right  to  Inspect  Books. 

First    Raising    Question  as  to,  on  Appeal, 

see  Appeal  and  Error,  619. 
Burden    of    Proving    Intent   in   Requesting, 

see  Evidence,  347. 
Injunction  to  Enforce,  see  Injunction,  242. 
Mandamus  to  Enforce,  see  ^Mandamus,  89, 

90. 
See  also  supra,  354. 
For  Editorial  Notes,  see  infra,  Vm.  §  33. 

506.  The  books  and  papers  of  a  private 
corporation  under  the  laws  of  this  state  are 
not  public,  but  private,  records  and  docu- 
ments. Lipscomb  v.  Condon,  56  W.  Va. 
416,  49  S.  E.  392,  67:  670 

507.  A  stockholder  has  the  right  at  com- 
mon law  to  inspect  the  books  of  his  cor- 
poration at  a  proper  time  and  place  and 
for  a  proper  purpose.  Re  Steinway,  159 
N.  Y.  250,  53  N.  E.  1103,  45:  461 

508.  All  reasonable  times  are  intended 
by  a  statute  giving  stockholders  the  right 
to  inspect  the  corporate  books  at  all  times. 
Weihenmayer  v.  Bitner,  88  Md.  325,  42 
Atl.  245,  45:  446 

509.  A  stockholder  has  a  right  to  inspect 
and  examine  the  books  and  records  of  the 
corporation  at  reasonable  times,  so  long  as 
his  purpose  is  to  inform  himself  as  to  the 
manner  and  fidelity  with  which  the  cor- 
porate affairs  are  being  conducted,  and  his 
examination  is  made  in  the  interest  of  the 
corporation.  State  ex  rel.  Weinberg  v.  Pa- 
cific Brewing  &  M.  Co.  21  Wash.  451,  58 
Pac.  584,  47:208 

510.  The  right  to  inspect  books  of  a  cor- 
poration does  not  depend  upon  the  motive 
or  purpose  of  the  stockholder  in  demand- 


782 


CORPORATIONS,  V.  e,  4. 


ing  sucli  inspection,  and  a  petition  which 
shows  that  the  plaintiff  is  a  stockholder, 
that  he  has  requested  the  defendant  to 
allow  him  to  inspect  the  books  and  rec- 
ords of  the  corporation,  and  fix  a  reason- 
able time  for  the  same,  which  request  has 
been  refused,  states  a  cause  of  action.  Cin- 
cinnati Volksblatt  Co.  v.  Iloffmeister,  62 
Ohio  St.  189,  56  N.  E.  1033,  48:  732 

511.  The  purchaser  of  stock  in  a  corpora- 
tion, although  entitled  to  examine  its 
books,  is  not,  as  matter  of  law,  imder  ob- 
ligation to  do  so  for  the  purpose  of  ascer- 
taining whether  or  not  he  has  been  de- 
frauded in  his  purchase  of  the  stock,  when 
he  is  not  aware  of  any  ground  of  suspicion. 
Gemer  v.  Mosher,  58^  Neb.  135,  78  N.  W. 
384,  46:  244 

512.  As  incident  to  a  right  to  inspect 
books  of  a  corporation  is  the  right  to  have 
such  inspection  by  a  proper  agent,  and  to 
take  copies  from  such  books  and  records. 
Cincinnati  Volksblatt  Co.  v.  Hoffmeister, 
62  Ohio  St.   189,  56  N.  E.   1033,         48:  732 

513.  The  common-law  right  of  a  share- 
holder to  inspect  the  books  of  his  corpora- 
tion is  not  affected  by  the  New  York  stock 
corporation  law  (N.  Y.  Laws  1892,  chap. 
688,  §§  29,  52),  providing  for  the  inspec- 
tion of  the  stock  book  and  for  the  furnish- 
ing of  a  statement  of  assets  and  liabili- 
ties upon  the  request  of  stockholders  own- 
ing a  fi.xed  percentage  of  the  capital  stock. 
Re  Steinwav,  159  N.^  Y.  250,  53  N.  E.  1103, 

45:  461 

514.  The  statutory  right  of  a  stockhold- 
er of  a  corporation  to  inspect  its  books, 
documents,  and  records  is  not  forfeited  by 
the  fact  that  he  is  a  business  rival  of  the 
corporation,  and  seeks  information  to  be 
used  to  its  injury  and  loss.  Woihenmayer 
V.  Bitner,  88  Md.'  325,  42  Atl.  245,     45:  446 

515.  Sufficient  ground  for  applying  for  a 
writ  of  mandamus  to  compel  the  officers  of 
an  incorporated  political  club  to  permit  a 
member  to  inspect  the  membership  roll 
is  shown  by  averring  that  the  directors 
and  one  of  the  officers  whose  duty  it  is  to 
keep  such  roll  have  refused,  upon  proper 
request,  to  permit  such  inspection;  and 
it  is  immaterial  that  a  list  of  members  is 
required  to  be  kept  by  other  officials.  Mc- 
Clintock  V.  Young  Republicans.  210  Va.  115, 
59  Atl.  691.  68:  459 

516.  A  member  of  a  corporation  organ- 
ized in  the  interests  of  a  political  organi- 
zation has  a  right  to  the  inspection  of  the 
membership  roll  for  the  purpose  of  insti- 
tuting measures  to  promote  the  objects  of 
the  organization,  to  protect  the  affairs  and 
property  of  the  corporation  from  being 
used  to  further  the  private  political  am- 
bition of  any  member  or  group  of  mem- 
bers, and  to  oppose  the  election  of  in- 
competent officials.  Id. 

4.  Dividends. 

Estoppel  by  Accepting,  see  Estoppel,  1G6. 

Effect  of  Attaching  after  Stockholder's 
Death,  see  Executors  and  Administra- 
tors, 129. 


Effect  of  Donor's  Receipt  of,  see  Gift,  28. 
Relative   Rights   of   Life   Tenants   and   Re- 
maindermen, see  Life  Tenants,  II.  b. 
See  also  supra,  293,  329;  infra,  803. 
For  Editorial  Notes,  see  infra,  VIII.   §   34. 

517.  On  complaint  of  the  minority  stock- 
holders, and  on  proper  showing,  the  court 
will  order  the  board  of  directors  of  a  cor- 
poration to  declare  a  dividend.  Crichton 
V.  Webb  Press  Co.  113  La.  167,  36  So.  926, 

67:76 
Rights  of  purchaser  of  stock. 
See  also  supra,  427. 
For  Editorial  Notes,  see  infra,  VIII.   §  34. 

518.  A  sale  of  shares  of  stock,  "includ- 
ing all  dividends  due  or  to  become  due 
thereon,"  includes  a  stock  dividend.  Rose 
V.  Barclay,  191  Pa.  594,  43  Atl.  385,    45:  392 

519.  The  failure  of  a  purchaser  of  stock, 
"including  all  dividends,"  to  inform  the  sell- 
er of  the  fact,  of  which  the  purchaser  knew 
he  was  ignorant,  that  a  stock  dividend 
had  been  declared,  does  not  avoid  the  sale, 
where  the  dividend  had  been  declared  at  a 
regularly  called  meeting  of  the  stockhold- 
ers, and  each  had  abundant  and  equal  op- 
portunities  of    knowledge   on   the    subject. 

Id. 
On  preferred  stock;  guaranty  of  dividends. 
See  also  supra,  368;   infra,  724;   Guaranty, 

3,   6,  20. 
For  Editorial  Notes,  see  infra,  VIII.  §§24, 

34. 

520.  A  guaranty  by  one  corporation,  on 
a  lease  of  the  road  of  another,  of  an  an- 
nual dividend  of  10  per  cent  on  the  capital 
stock  of  the  lessor  company,  creates  no 
privity  between  the  lessee  company  and  the 
stockholders  of  the  other;  and  a  state- 
ment printed  on  the  certificates  of  stock 
to  the  effect  that  such  dividend  is  guar- 
anteed, purporting  only  to  be  a  state- 
ment of  a  fact  having  reference  to  an 
agreement  between  the  companies,  which 
statement  is  not  signed  by  the  lessee  com- 
pany,, does  not  constitute  any  contract  with 
the  stockholders.  Beveridge  v.  New  York 
Elev.  R.  Co.   112  N.  Y.   1,   19  N.  E.  489, 

2:  648 

521.  A  guaranty  by  a  corporation  of  divi- 
dends upon  preferred  stock,  in  accordance 
with  a  statute  permitting  a  guaranty  of 
such  dividends  payable  cumulatively  out 
of  net  profits,  does  not  make  the  dividend 
payable  at  all  events,  but  only  devotes  the 
profits  to  the  payment  of  dividends  upon 
such  stock  in  preference  to  common  stock. 
Field  V.  Lamson  &  G.  Mfg.  Co.  162  Mass. 
388,   38  N.   E.   1126,  27:  136 

522.  The  declaration  of  a  "dividend  out  of 
net  profits  contrary  to  the  judgment  of  the 
directors  is  not  required  by  a  guaranty  by 
the  corporation  of  dividends  upon  preferred 
stock  in  accordance  with  a  statute  sim- 
ply permitting  a  guaranty  of  such  dividends 
payable    cumulatively    out    of    net    profits. 

Id. 

523.  The  right  to  dividends  on  preferred 
stock  which  are  payable  out  of  net  profits 
cannot  be  enforced  in  an  action  at  law, 
even  if  there  are  net  profits  out  of  which 


CORPORATIONS,  V.  f,  1. 


they  might  be  paid,  if  no  dividend  has  been 
declared.  Id. 

524.  A  court  of  equity  cannot  compel  the 
declaration  of  a  dividend  on  preferred  stocK 
out  of  net  profits  from  which  the  directors 
have  a  right  to  make  the  dividend  payable 
cumulatively,  where  for  half  the  time  for 
which  the  dividends  are  claimed  there  were 
no  net  profits,  and  the  condition  of  the  cor- 
poration is  such  that  the  court  cannot  say 
that  the  payment  of  dividends  might  not 
injure  the  concern,  or  that  the  withholding 
of  them  might  not  be  judicious.  Id. 

f.  Liability  of  Shareholders. 

1.  In  General. 

Of  Foreign  Corporation,  see  infra,  831. 
832. 

Liability  of  Personal  Representative,  see 
Abatement  and  Revival,  10,  11. 

Error  in  Reversing  in  Toto  Judgment  for 
Assessment,  see  Appeal  and  Error, 
1154. 

For  Laborer's  Wages,  Assignability  of 
Claim   for,  see  Assignment,   14. 

Right  to  Recover  Corporate  Assets  Con- 
ferred by  Majority  Stockholder,  see 
Assumpsit,  27. 

Liability  of  Stockholder  in  Bank,  see 
Banks,  16-26. 

To  Bank  Discounting  Paper  for'  Corpora- 
tion, see  Banks,  2. 

Lien  on  Assets  of  Insolvent  Stockholder, 
see  Banks,  15. 

Stockholder  Signing  Bond  for  Coirporation, 
see  Bonds,  2. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.  d,  2,  b. 

Self-Executing  Provisions  as  to,  see  Con- 
stitutional Law,  85-87. 

Effect  of  Discharge  of  Corporation  in  In- 
solvency Proceedings,  see  Constitu- 
tional Law,  1189. 

Impairing  Obligation  of  Contract  as  to,  see 
Constitutional  Law,  1141. 

Following  Decisions  of  Other  Courts,  as  to, 
see  Courts,  523,  524. 

Measure  of  Liability  for  False  Represen- 
tations, see  Damages,  268. 

Estoppel  to  Deny  Liability,  see  Estoppel, 
104. 

Evidence  of  False  Statements  by  Stock- 
holders, see  Evidence,  1795. 

Of  Insurance  Company,  see  Insurance,  816. 

Conclusiveness  of  Judgment  as  to,  see  Judg- 
ment, 173,  228,  229,  285,  288. 

Liability  of  Stock  to  Levy,  see  Levy  and 
Seizure,  14-17. 

Limitation  of  Action  against,  see  Limita- 
tion of  Actions,  99-103. 

Notice  of  Stockholder's  Discharge  in  Insolv- 
ency, see  Notice,  73. 

In  Case  Corporate  Existence  is  not  Ac- 
quired, see  Partnership,  19. 

Liability  of  Members  of  Partnership  Asso- 
citation,   see   Partnership,  VIII. 

Set-Off  by  Stockholder,  see  Set -Off  and 
Counterclaim,   23,   32,   39. 

Effect  of  Repeal  of  Statute  aa  to,  see 
Statutes,  612. 


788 

Statute  Exempting  from,  as  Exclusive  Priv- 
ilege, see  Taxes,  203. 

Liability  to  Taxation  on  Stock,  see  Taxes, 
I.  e,  2. 

See  also  infra,  803. 

For  Editorial  Notes,  see  infra,  VIII.  §§  23, 
35-43. 

525.  A  contract  liability  is  assumed  by 
stockholders  under  a  state  Constitution, 
and  laws  passed  pursuant  thereto,  imposing 
upon  them  a  personal  liability  for  debts  of 
the  corporation  in  addition  to  the  stock 
subscription.  Kirtley  v.  Holmes,  46  C.  C. 
A.   102,  107  Fed.  1,      '  52:  738 

526.  A  person  who  is  accepted  as  stock- 
holder in  a  corporation,  by  the  charter  of 
which  he  was  ineligible  to  membership,  is 
estopped  from  denying  his  eligibility  as 
against  creditors  of  the  corporation,  after 
it  has  become  insolvent.  Blien  v.  Rand, 
77  Minn.   110.  79  N.  W.  606,  46:  618 

527.  A  railroad  company  whose  rights 
and  powers  in  respect  to  a  connecting  road 
are  merely  those  of  a  stockholder  is  not 
liable  for  the  negligence  of  a  connecting 
railroad.  Atchison.  T.  &  S.  F.  R.  Co.  v. 
Cochran,  43  Kan.  225,  23  Pac.  151,       7:  414 

528.  The  provision  in  Minn.  Laws  1889, 
chap.  30,  §  1,  amending  the  insolvent  law  of 
1887,  "that  the  release  of  any  debtor  under 
this  act  shall  not  operate  to  discharge  any 
other  party  liable  as  surety,  guarantor,  or 
otherwise  for  the  same  debt,"  includes 
stockholders  who  are  liable  for  the  debts 
of  the  corporation.  Willis  v.  St.  Paul  Sani- 
tation Co.  48  Minn.  140,  50  N.  W.  1110, 

16:  281 
Exemption  from  liability. 

529.  A  "mechanical  business,"  within  the 
meaning  of  Minn.  Const,  art.  10,  §  3,  ex- 
empting all  manufacturing  or  mechanical 
business  from  a  provision  for  liability  of 
stockholders  to  the  afnount  of  stock  held, 
means  a  business  closely  allied  to  or  inci- 
dental to  some  kind  of  manufacturing 
business.  Cowling  v.  Zenith  Iron  Co.  65 
Minn.  263,  68  N.  W.  48,  33:  508 

530.  The  mining  of  iron  ore  is  a  mechan- 
ical business  within  the  meaning  of  Minn. 
Const,  art.  10,  §  3,  exempting  such  business 
from  the  provision  as  to  the  liability  of 
stockholders.  Id. 

531.  A  corporation  organized  in  part  for 
buying,  selling,  leasing,  and  dealing  in  min- 
eral lands  is  not  organized  for  an  exclusive- 
ly manufacturing  business  so  as  to  exempt 
its  stockholders,  under  Minn.  Const,  art. 
10,  §  3,  from  liability  to  the  amount  of 
stock  held.  Anderson  v.  Anderson  Iron  Co. 
65  Minn.  281,  68  N.  W.  49,  33:  510 

532.  A  corporation  which  by  the  terms  of 
Minn.  Gen.  Stat.  1894,  §  2829,  is  deemed  a 
manufacturing  or  mechanical  corporation, 
cannot  be  held  so  unless  it  is  within  the 
meaning  of  those  terms  as  used  in  the  Con- 
stitution; and  the  section,  so  far  as  it  en- 
larges the  class,  ia  void.  Id. 

533.  An  electric  street  railway  company 
is  not  a  "railroad"  corporation  within  the 
meaning  of  the  exemption  of  the  stock- 
holders of  railroad  corporations  from  indi- 


784 


CORPORATIONS.  V.  t,  I. 


vidual  liability  equal  to  the  amotmt  of  their 
stock.  Ferguson  v.  Sherman,  116  Cal.  169, 
47   Pac.   1023,  37:  622 

Amount. 

534.  Stockholders  in  a  corporation  can- 
not defeat  all  recovery  against  them  for  an 
amount  in  addition  to  the  value  of  their 
stock,  because  the  act  providing  for  it 
does  not  fix  the  amount,  but  simply  fixes 
a  limit  beyond  which  it  shall  not  extend, 
since  the  liability  will  be  regarded  as  ex- 
tending to  such  limit  if  necessary.  Flenni- 
ken  v.  Marshall,  43  S.  C.  80,  20  S.  E.  788, 

28:  402 
On  paid-up  stock. 
See  also  infra,  564. 

535.  No  assessment  on  paid-up  stock  of  a 
corporation  can  be  made,  in  the  absence  of 
statutory  authority  or  power  given  by  the 
articles  of  incorporation.  Enterprise  Ditch 
Co.  V.  Moffit,  58  Neb.  642,  79  N.  W.  560, 

45:  647 
For  failure  to  publish  notice. 

536.  The  liability  of  stockholders  for  fail- 
ure to  publish  an  annual  notice  of  the  cor- 
porate debts  is  in  the  nature  of  a  penalty 
as  a  punishment  for  their  default.  Globe 
Pub.  Co.  V.  State  Bank,  41  Neb.  175,  59 
N.  W.  683,  27:  854 
In  de  facto  corporations. 

For  Editorial  Notes,  see  infra,  VIII.  §  41. 

537.  Subscribers  to  the  stock  of  corpora- 
tions which  never  become  fully  organized 
because  all  the  stock  is  not  taken,  but 
which  are  merged,  with  their  consent,  in  a 
new  corporation,  cannot  set  up  illegality 
of  the  merger  or  the  lack  of  corporate 
character  of  any  or  all  of  the  companies  to 
defeat  their  liability,  as  against  creditors 
of  the  new  company,  after  they  have  per- 
mitted it  to  incur  liabilities.  Hamilton  v. 
Jackson,  144  Pa.  34,  23  Atl.  53,  13:  779 

538.  A  creditor  who  has  dealt  with  a 
de  facto  corporation  m  its  corporate  capaci- 
ty cannot  charge  the  stockholders  as  part- 
ners with  the  corporate  debt,  in  the  ab- 
sence of  fraud.  Louis  Snider's  Sons  Co.  v. 
Troy,  91  Ala.  224,  8  So.  658,  11:  515 

539.  Stockholders  are  liable  as  partners 
on  contracts  of  a  corporation  which  they 
have  undertaken  to  form  for  a  certain  busi- 
ness under  the  laws  of  another  state,  solely 
because  a  corporation  for  such  business  can- 
not be  legally  organized  in  the  state  where 
it  is  to  be  carried  on.  Empire  Mills  v. 
Alston  Grocery  Co.  (Tex.  App.)  15  S.  W. 
505,  _       ^  12:  366 

540.  An  attempted  organization  of  a  cor- 
poration in  one  state,  under  a  charter 
granted  in  another  state,  does  not  consti- 
tute it  a  de  facto  corporation  so  as  to  re- 
lieve the  members  from  liability  as  part- 
ners, as  to  give  an  association  such  a  status 
the  attempted  organization  must  be  under 
semblance  of  authority,  which  does  not 
exist  in  the  case  supposed.  Duke  v.  Tay- 
lor. 37  Fla.  64,  19  So.  172,  ^  31:  484 

541.  Persons  doing  business  in  the  nan- 
of  an  assumed  corjwration  after  filing  arti- 
cles of  incorporation   for  record,  but  before 
any  stock  is  subscribed  for  or  any  further 
steps    taken    towards   organization,    even   if 


they  are  not  liable  as  stockholders  by  the 
terms  of  the  statute,  are  personally  liable 
as  partners,  under  Wis.  Rev.  Stat.  §§  1771- 
1773,  providing  that  no  corporation  shall 
have  legal  existence  until  such  articles  are  so 
left  for  record,  and  that  in  such  a  corpora- 
tion only  persons  holding  stock  shall  be 
members,  and  that  stockholders  shall  be 
personally  liable  until  one  half  of  the  capi- 
tal stock  has  been  subscribed  and  20  per 
cent  thereof  paid.  Wechselberg  v.  Flour 
City  Nat.  Bank,  24  U.  S.  App.  308,  12  C.  C. 
A.  56,  64  Fed.  90,  26:  470 

542.  A  person  who  signs  articles  of  incor- 
poration which  are  filed  for  record  and  re- 
corded may  be  liable  as  a  partner  for  per- 
mitting the  use  of  his  name  as  an  officer  of 
the  corporation  by  other  signers  of  the  arti- 
cles who,  without  becoming  legally  incor- 
porated, carry  on  business  in  the  assumed 
name  of  the  corporation,  where  he  has 
knowledge  of  such  use  of  his  name,  or  is 
guilty  of  negligence  in  not  knowing  it.     Id. 

543.  Taking  subscriptions  to  and  issuing 
stock,  electing  managers  and  directors, 
adopting  by-laws,  buying  a  lot,  and  con- 
structing and  leasing  a  building  upon  it, 
constitute  a  sufficient  user  to  constitute  a 
de  facto  corporation  which  will  prevent  lia- 
bility of  the  members  as  partners  under  a 
statute  authorizing  corporations  for  such 
business.  Finnegan  v.  Knights  of  Labor 
Bldg.  Asso.  52  Minn.  239,  53  N.  W.  1150, 

18:  778 

544.  A  contract  subscribing  "for  the  cap- 
ital stock  of  a  corporation  to  be  organized" 
does  not  constitute  the  subscribers  stock- 
holders within  the  provisions  of  Wis..  Rev, 
Stat.  §  1773,  making  stockholders  "then  ex- 
isting" personally  liable  on  obligations  of 
the  corporation  incurred  before  one  half  of 
its  capital  stock  has  been  subscribed;  and 
they  are  not  made  liable  by  the  fact  that 
they  subsequently  become  in  fact  stock- 
holders, and  that  the  corporation  thereafter 
has  the  benefit  of  the  transaction  in  which 
the  obligation  was  created.  Badger  Paper 
Co.  V.  Rose,  95  Wis.  145,  70  N.  W.  302, 

37:  162 

545.  Merely  participating  in  the  signing 
and  filing  of  articles  of  incorporation  will 
not  render  a  person  liable  as  a  partner  for 
liabilities  contracted  by  one  of  his  associ- 
ates who  assumes  to  transact  business  un- 
der the  proposed  corporate  name,  where  the 
organization  is  never  perfected,  and  the  one 
sought  to  be  charged  has  not  participated 
in  the  business  or  held  himself  out  as  a 
partner.  Rutherford  v.  Hill,  22  Or.  218, 
29  Pac.  546,  17:  649 
Of  trustee  or  attorney. 

546.  One  who  holds  stock  as  the  self-ap- 
pointed attorney  or  trustee  of  an  infant- 
without  anything  on  the  books  of  the  cor- 
poration to"  show  that  the  holder  is  not  the 
actual  and  beneficial  owner,  is  liable  as  a 
stockholder.  Kerr  v.  Urie,  86  Md.  72,  37 
Atl.  789,  38:  119 
Sole  stockholder. 

547.  The  failure  to  pay  up  all  the  stock 
of  a  corporation  does  not  make  one  who 
has  become  the  sole  owner  of  it  personally 


CORPORATIONS,  Y.  f,  1 


1S5 


liable  for  corporate  debts,  on  the  groiind  of 
fraud, — at  least  where  these  were  incurred 
long  after  the  corporation  had  been  or- 
ganized and  had  been  doing  a  prosperous 
business,  and  when  the  stock  paid  in  and 
the  assets  were  amply  sufficient  to  pay  all 
indebtedness  then  existing.  Louisville  Bkg. 
Co.  V.  Eisenman,  94  Ky.  83,  21  S.  W.  531, 

19:  684 

548.  The  sole  owner  of  the  stock  of  a 
corporation  which  is  still  doing  business  as 
such  does  not  become  personally  liable  on 
an  indorsement  of  drafts  made  by  him  in 
the  name  of  the  corporation,  where  no 
fraud  was  practised  and  all  parties  to  the 
transaction  acted  in  the  belief  that  the 
corporation  alone  was  liable.  Id. 
Mortgage  bondholders.              •    , 

549.  Railroad  mortgage  bondhdtders  who 
subscribed  an  agreement  to  pay  the  com- 
pany a  certain  sum  in  specific  instalments, 
and  to  receive  therefor  debenture  bonds,  do 
not  thereby  become  liable  to  creditors  of 
the  company  for  the  amounts  unpaid  on 
such  agreement,  on  the  analogy  of  the  lia- 
bility of  stockholders  to  the  extent  of  un- 
paid stock  subscriptions.  Pettibone  v.  To- 
ledo, C.  &  St.  L.  R.  Co.  148  Mass.  411,  19 
N.  E.  337,  1:  787 
For  what  debts. 

See  also  infra,  580-585,  616,  617. 

550.  The  word  "ascertained"  in  the  Ne- 
braska Constitution,  making  stockholders 
liable  for  debts  of  the  corporation  which 
have  been  ascertained,  means  judicially  as- 
certained. Globe  Pub.  Co.  v.  State  Bank, 
41  Neb.  175,  59  N.  W.  683,  27:  854 

550a.  No  debt  is  contracted  by  a  corpora- 
tion by  the  mere  making  of  a  contract  for 
goods,  before  any  breach  thereof  or  delivery 
of  goods,  within  the  meaning  of  R.  I. 
Pub.  Stat.  chap.  155,  §  12,  making  stock- 
holders liable  for  debts  contracted  before 
notice  by  the  filing  of  a  certificate.  Wing 
V.  Slater,  19  R.  I.  597,  35  Atl.  302,     33:  566 

551.  The  "dues  from  corporations,"  that 
are  required  by  Ohio  Const,  art.  13,  §  3, 
to  be  secured  by  individual  liability  of  the 
stockholders,  include  obligations  growing 
out  of  torts,  as  well  as  those  growing  out 
of  contracts.  Rider 'v.  Fritchey,  49  Ohio 
St.  285,  30  N.  E.  692,  15:  513 

552.  A  demand  arising  ex  delicto  may  be 
enforced  against  the  stockholders  of  a  cor- 
poration under  a  constitutional  provision 
that  the  dues  from  corporations  shall  be 
secured  by  individual  liability  of  the  stock- 
holders. Flenniken  v.  Marshall,  43  S.  C. 
80,  20  S.  E.  788,  28:  402 

553.  A  stockholder  of  a  railroad  com- 
pany is  not  liable  for  the  negligence  of  the 
officers,  agents,  or  employees  of  the  com- 
pany in  the  operation  of  its  road.  Atchi- 
son, T.  &  S.  F.  R.  Co,  V.  Cochran,  43  Kan. 
225,    23    Pac.    151,  7:414 

554.  Whether  or  not  a  claim  of  damages 
for  waste  is  an  indebtedness  of  a  corpora- 
tion, within  the  scope  of  Or.  Const,  art.  11, 
§  3,  making  a  stockholder  liable  for  the  in- 
debtedness of  the  corporation  to  the  amount 
unpaid  on  his  stock,  a  judgment  obtained 
thereon  is  such  an  indebtedness.    Powell  v. 

LJI.A.  Dig.— 50. 


Oregonian   R.   Co.    13   Sawy.   535,   36   Fed. 
726,  2:  270 

555.  A  judgment  against  a  corporation  for 
the  recovery  of  money  is  conclusive  evidence, 
in  a  suit  against  a  stockholder  for  the  col- 
lection of  said  judgment,  of  the  existence  of 
the  corporation  and  its  liability  to  plaintiff 
therein  as  thereby  determined;  and  such 
judgment,  whether  given  in  an  action  ex 
contractu  or  ex  delicto,  is  an  indebtedness 
of  the  corporation,  for  which  a  stockholder 
is  liable  to  the  amount  due  on  his  stock. 
Powell  V.  Oregonian  R.  Co.  13  Sawy.  543, 
38   Fed.   187,  3:  201 

556.  A  creditor  who  purchases  claims 
against  the  corporation  after  it  has  become 
insolvent  and  its  affairs  have  been  placed 
in  the  hands  of  a  receiver  will  not  be  grant- 
ed relief  in  equity  against  the  holders  of 
stock  under  an  agreement  with  the  corpora- 
tion that  they  shall  not  be  obliged  to  pay 
for  it  unless  he  pays  a  substantial  consid- 
eration for  the  claims.  Uospea  v.  North- 
western Mfg.  &  C.  Co,  48  Minn.  174,  50  N. 
W.  1117,  15:  470 

557.  A  claim  in  favor  of  creditors  of  a 
corporation  against  the  estate  of  a  deceased 
stockholder  before  the  assets  of  the  cor- 
poration are  fully  administered  is  a  "con- 
tingent claim"  within  the  meaning  of  Minn. 
Gen..  Stat.  chap.  53,  relating  to  claims 
against  decedents'  estates.  Id. 

558.  A  provision  in  bonds  issued  by  a  cor- 
poration, that  no  stockholders  shall  be  indi- 
vidually liable  thereon,  does  not  exempt 
them  from  the  subjection  of  their  contractu- 
al indebtedness  to  the  company  to  the  pay- 
ment of  creditors  holding  judgment  upon  the 
bonds,  but  refers  to  their  statutory  individ- 
ual statutory  liability.  Preston  v.  Cincin- 
nati, C.  &  H.  V.  R.  Co.  36  Fed.  .54,     1:  140 

559.  One  employed  by  a  corporation  on  a 
monthly  salary,  who  is  part  of  the  time  on 
the  road  selling  goods,  making  collections, 
etc.,  as  a  drummer,  and  the  rest  of  the  time 
working  in  a  store,  shipping  and  receiving 
goods,  moving  and  handling  stock,  etc,  or 
making  sales  and  collecting  bills  in  the  city, 
— is  a  "clerk,"  within  the  meaning  of  the 
Tennessee  general  incorporation  act  of  1875, 
§11,  making  stockholders  individually  lia- 
ble for  moneys  due  "laborers,  servants, 
clerks,  and  operatives"  in  case  the  corpora- 
tion becomes  insolvent.  Cole  v.  Hand,  88 
Tenn,  400,  12  S.  W,  922,  7:  96 

560.  A  stockholder  of  a  corporation  is  lia- 
ble for  interest  on  obligations  which  bear 
interest,  under  a  statute  making  him  liable 
for  his  proportion  of  the  debts  of  the  cor- 
poration. Wells,  F.  &  Co.  V.  Enright,  127 
Cal.  669,  60  Pac.  439,  49:  647 

2.  Effect  of  Transfer. 

Of  Bank  Stock,  see  Banks,  22,  23. 
See  also  supra,  405,  503;  infra,  605. 

Liability  of  transferee. 
For    Editorial   Notes,    see    infra,    VIIL    §§ 
38^0. 

561.  A  purchaser  or  assignee  of  shares  of 
stock  in  a  corporation  who  takes  them  with 


786 


CORPORATIONS.  V.  f,  8. 


notice  of  the  facts  relative  to  the  mode  and 
manner  or  purpose  of  their  issue  has  the 
same  liability  as  the  former  owners  of  the 
stock.  Sprague  v.  National  Bank  of  Amer- 
ica, 172  III.  149,  60  N.  E.  19,  42:  606 

562.  Purchasers  of  stock  with  full  knowl- 
edge that  it  has  been  paid  for  only  by 
agreement  to  transfer  a  worthless  invention 
are  liable  for  the  unpaid  subscription.  Van 
Cleve  V.  Berkey,  143  Mo.  109,  44  S.  W. 
743,  42:593 

563.  Both  assignor  and  assignee  of  cor- 
porate stock  are  liable  to  creditors  for  the 
amount  remaining  unpaid  thereon,  if  the 
assignee  has  notice  that  it  was  not  paid, 
under  111.  Rev.  Stat.  chap.  32,  §  8,  providing 
that  the  assignor  shall  not  be  released. 
Sprague  v.  National  Bank  of  America,  172 
111.  149,  50  N.  E.  19,  42:  606 

564.  A  purchaser  or  assignee  in  good  faith 
of  stock  in  a  corporation  without  notice 
that  it  has  not  been  fully  paid  does  not  be- 
come liable  to  the  corporate  creditors  for 
the  unpaid  balance,  where  the  stock  was 
issued  as  fully  paid.  Id. 

565.  By-laws  of  a  corporation  which  pro- 
vide in  general  terms  for  notice  of  calls  for 
payments  upon  subscription  liabilities  for 
stock,  to  successors  in  interest  of  original 
subscribers  therefor,  include  notices  to 
those  who  may  have  become  possessed,  as 
legatees  or  next  of  kin  of  a  deceased  sub- 
scriber, of  the  benefits  of  a  stock  subscrip- 
tion, where  notice  to  them  is  necessary  to 
a  liability  on  their  part  to  pay  such  calls. 
South  Milwaukee  Co.  v.  Murphy,  112  Wis. 
614,  88  N.  W.  583,  58:  82 

566.  If  property  received  by  a  corporation 
is  grossly  unequal  in  value  to  the  par  value 
of  the  shares  given  in  payment,  a  subse- 
quent transferee  of  the  shares,  with  notice 
of  the  circumstances,  is  liable  to  the  credit- 
ors of  the  corporation,  to  the  same  extent 
as  the  original  shareholder.  Boulton  Carbon 
Co.  V.  Mills,  78  Iowa,  460,  43  N.  W.  290, 

5:  649 

567.  A  purchaser,  at  a  sale  on  execution, 
of  stock  in  a  corporation,  which  defendant 
had  previously  transferred  in  good  faith  on 
the  books  of  the  corporation  as  collateral 
security,  acquires  no  title  by  such  purchase 
so  as  to  make  him  chargeable  with  liability 
as  a  stockholder  to  the  creditors  of  the  cor- 
poration. Simmons  v.  Hill,  96  Mo.  679,  10 
S.  W.   61,  2:  476 

568;  The  transfer,  on  the  books  of  a  cor- 
poration, of  stock  by  persons  holding  it  as 
collateral  security,  to  one  who  had  bid  ofiF 
such  stock  on  execution  against  his  debtor, 
who  bad  pledged  it  as  collateral,  does  not 
make  him  liable  as  a  stockholder,  where 
such  transfer  is  made  without  his  request  or 
knowledge.  The  fact  that  he  had  bid  it  oflF 
on  execution  does  not,  by  implication,  au- 
thorize such  transfer.  Id. 

569.  Receiving  unpaid  stock  as  collateral 
security  for  a  loan  of  money  to  the  corpora- 
tion which  issues  it  does  not  render  the 
holder  liable  to  creditors  of  the  company 
as  a  holder  of  unpaid  stock,  unless  it  may 
be  to  creditors  specially  misled, — especially 
when  the  statutes  forbid  the  issue  of  unpaid 


stock  and  declare  that  it  shall  be  void.  An- 
drews V.  National  Foundry  &  P.  Works, 
22  C.  C.  A.  110,  46  U.  S.  App.  281,  76  Fed. 
166,  36:  139 

Of  transferrer. 
For  Editorial  Notes,  see  infra,  VIII.  §  38. 

570.  The  assignment  of  stock  pending  an 
action  against  a  corporation,  to  a  person 
who  is  insolvent  at  the  time  when  the  per- 
sonal liability  of  stockholders  is  to  be  en- 
forced, does  not  relieve  the  assignor  from 
such  liability.  Rider  v.  Fritchey,  49  Ohio 
St.  285,  30  N.  E.  692,  15:513 

571.  A  corporation  which  permits  the 
transfer  of  stock  by  canceling  the  certifi- 
cate and  issuing  a  new  one  to  the  pur- 
chaser, and  afterwards  brings  an  action 
against  him  "for  the  unpaid  portion  of  the 
stock,  ratifies  the  transaction,  and  cannot 
subsequently  claim  that  the  transfer  is  in- 
effectual to  release  the  original  shareholder 
from  liability  as  such,  on  the  ground  that  it 
was  not  made  in  good  faith.  Rochester  & 
K.  F.  Land  Co.  v.  Raymond,  158  N.  Y.  576, 
53  N.  E.  507,  47:  246 

572.  A  holder  of  stock  in  a  national  bank 
who,  without  knowledge  or  suspicion  that 
the  bank  is  either  then  insolvent  or  is  likely 
to  prove  so,  sells  the  stock,  and  who  does 
everything  reasonably  possible  to  procure 
a  transfer  of  the  shares  on  the  books  of 
the  bank,  cannot  be  held  liable  as  a  stock- 
holder, although  the  bank  is  declared  in- 
solvent before  the  transfer  is  effected,  and 
both  the  bank  and  the  purchaser  were  in- 
solvent when  the  sale  was  made.  Earle  v. 
Carson,  46  C.  C.  A.  498,  107  Fed.  639. 

60:  266 

3.  For  Unpaid  Stock. 
a.  In  General. 

As  to  Payment  for  Subscriptions  G'^nerally, 
see  supra,  V.  b,  2. 

Multifariousness  of  Bill  to  Enfprce  Lia- 
bility, see  Action  or  Suit,  103. 

Equitable  Jurisdiction  of  Suit  for,  see 
Equity,  44,  45,  53. 

Forfeiture  of  Shares  of  Joint  Stock  Com- 
pany, see  Forfeittire,  4. 

Conclusiveness  of  Judgment  as  to,  see  Judg- 
ment, 229. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  94-98. 

Joinder  of  Subscribers,  see  Parties,  194. 

Amendment  of  Bill  to  Reach,  see  Pleading, 
125. 

Action  by  Receiver  for,  see  Receivers,  120. 

See  also  supra.  547,  563-565;  infra,  626,  632, 
633. 

For  Editorial  Notes,  see  infra,  VTII.  §§  35, 
37-39. 

573.  The  original  subscription  liability 
to  pay  for  stock  in  a  corporation  cannot  be 
extinguished  except  by  payment  thereof  or 
consent  of  the  corporation.  South  Milwau- 
kee Co.  v.  Murphy,  112  Wis.  614,  88  N.  W. 
583,  .  58:  82 

574.  The  doctrine  that  unpaid  subscrip- 
tions to  the  capital  stock  of  a  corporation 

are  a  trust  fund  for  creditors  has  no  appli 


CORPORATIONS,  V.  f,  8. 


787 


cation  until  the  corporation  becomes  in- 
solvent. Fear  v.  Bartlett,  81  Md,  435,  32 
Atl.  322,  33:  721 

575  -G.  Fraud  in  the  organization  of  a  cor- 
poration, or  in  the  issuance  of  its  stock,  is 
not  a  necessary  element  in  establishing 
the  liability  of  a  stockholder  to  pay  the 
corporation  debts  to  the  extent  of  his  un- 
paid stock  subscriptions.  Boulton  Carbon 
Co.  V.  Mills,  78  Iowa,  460,  43  N.  W.  290, 

.     5:  649 

577.  Creditors  of  a  corporation  cannot  at- 
tack payments  of  overdue  stock  subscrip- 
tions because  the  president  of  the  corpora- 
tion, in  order  to  secure  them,  without  au- 
thority, fraudulently  repurchased  the  stock 
with  assets  of  the  corporation.  HaH  v. 
Henderson,    134   Ala.    455,    32    So.    840, 

63:  673 
Jurisdiction  of  chancery. 

578.  Chancery  has  no  original  jurisdic- 
tion, at  the  suit  of  a  corporation  creditor, 
to  coerce  the  payment  by  stockholders  of 
their  subscriptions  to  its  capital.  Hall  v. 
Henderson,  134  Ala.  455,  32  So.  840, 

63:  673 

579.  Subscriptions  to  the  stock  of  a  cor- 
poration do  not  constitute  trust  funds  for 
the  benefit  of  its  creditors,  so  as  to  give 
chancery  jurisdiction  of  a  suit  to  reach 
them  for  the  creditors'  benefit.  Id. 
For  what  debts;  to  what  creditors. 

See  also  supra,  550-560;  infra,  602,  616,  617. 

580.  A  stockholder  who  becomes  such  for 
the  mere  purpose  of  enabling  the  corpora- 
tion to  obtain  a  certificate  of  organization, 
and  under  an  agreement  with  other  sub- 
scribers that  he  shall  not  be  required  to  pay 
assessments,  and  shall  not  be  liable  on  the 
stock,  cannot  be  assessed  thereon  except  to 
pay  corporate  debts.  He  has  no  liability  as 
between  himself  and  the  other  stockholders. 
Winston  v.  Brooks,  129  111.  64,  21  N.  E. 
514,  4:  507 

581.  The  liability  of  a  subscriber  to  stock 
in  a  corporation  for  any  assessment,  after 
the  first  one,  for  the  purpose  of  defraying 
incidental  preliminary  expenses,  does  not 
arise  until  the  corporation  is  sufficiently  or- 
ganized and  qualified  to  enter  upon  general 
business  by  the  subscription  of  its  whole 
capital  stock,  or  by  the  amount  fixed  by 
statute  as  sufficient  to  authorize  its  entry 
upon  general  business.  Anvil  Min.  Co.  v. 
Sherman,  74  Wis.  226,  42  X.  W.  226,  4:  232 

582.  A  creditor  whose  debt  was  created 
before  the  capitalization  of  the  company 
or  any  subscriptions  to  its  stock,  as  well  as 
subsequent  creditors,  can  enforce  tlie  lia- 
bility of  the  stockholders  for  unpaid  sub- 
scriptions. Shields  v.  Clifton  Hill  Land  Co. 
94  Tenn.   123,  28  S.  W.  668,  26:  509 

583.  Where  stock  is  issued  as  fully  paid 
up  without  having  been  paid  for  to  the  full 
amount,  shareholders  are  liable  for  the 
amount  not  actually  paid,  in  favor  of  cred- 
itors giving  credit  in  reliance  upon  its  pro- 
fessed capital  having  been  fully  paid  in,  but 
not  to  creditors  who  dealt  with  full  knowl- 
edge that  the  stock  was  fictitiously  issued 
as   paid    up.     First   Nat.   Bank   v.   Gustin- 


Minerva  Consol.  Min.  Co.  42  Minn.  327,  44 
N.  W.   198,  6:  676 

584.  Where  a  corporation  issues  new 
shares  after  the  claim  of  a  creditor  has 
arisen,  the  latter,  not  having  dealt  with  the 
company  on  the  faith  of  any  capital  repre- 
sented by  such  sliares,  cannot  insist  on 
contribution,  by  the  holders,  of  a  greater 
amount  of  capital  than  the  corporation 
itself  could  claim  from  them  as  part  of  its 
assets.  Id. 

585.  Liability  for  negligent  injury  to  an 
employee  is  placed  upon  stockholders  of  a 
corporation  who  have  not  paid  for  their 
stock,  by  a  statute  making  them  liable  for 
all  acts  of,  and  contracts  made  by,  it. 
Kelly  V,  Fourth  of  July  Min.  Co.  21  Mont. 
291,  53  Pac.  959,  42:  621 
Calls. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

186,  187. 
See  also  infra,  590-593. 
For  Editorial  Notes,  see  infra,  VIII.  §  36. 

586.  A  call  on  stockholders,  stating  that 
they  may  pay  in  cash  or  "by  a  promise  to 
pay  in  the  form  of  a  land  contract  or  con- 
tracts," without  showing  who  may  exer- 
cise the  option,  or  prescribing  any  condi- 
tions or  terras  to  govern  in  settlement  of 
the  balance  due  the  corporation,  is  void  .for 
indefiniteness.  North  Milwaukee  Town-Site 
Co.  V.  Bishop,  103  Wis.  492,  79  N.  W.  785, 

45:  174 

587.  A  corporation  whose  articles  of  asso- 
ciation provide  that  the  holders  of  shares 
for  the  time  being,  whatever  the  number 
issued  or  subscribed  for,  shall  form  the  com- 
pany, may  make  calls  upon  its  stock,  al- 
though the  entire  amount  of  stock  has  not 
been  sub.scribed  for  or  the  shares  allotted. 
Mandel  v.  Swan  Land  &  C.  Co.  154  111. 
177,  40  N.  E.  462,  27:  313 

588.  A  by-law  prescribing  notice  of  a  call 
for  an  instalment  on  a  stock  subscription  is 
a  condition  precedent  to  a  valid  call,  under 
Wis.  Rev.  Stat.  §  1754,  providing  for  calls 
on  "giving  such  notice  thereof  as  the  by- 
laws shall  prescribe."  Germania  Iron  Min. 
Co.  V.  King,  94  Wis.  439,  69  N.  W.  181, 

36:  51 

589.  When  a  stockholder's  subscription  to 
the  capital  stocK  of  a  corporation  provides 
that  payments  on  such  subscription  shall  be 
made  in  instalments  of  a  certain  per  cent 
as  called  for  by  the  board  of  directors,  pro- 
vided thirty  days  intervene  between  calls, 
it  is  competent  for  the  legislature  to  devest 
the  board  of  directors  of  its  discretion  to 
postpone  calls  beyond  periods  of  thirty 
days  each,  and  to  fix  absolutely,  within  the 
limits  of  the  contract,  the  time  and  amount 
of  such  payments.  West  v.  Topeka  Sav. 
Bank,  66  Kan.  524,  72  Pac.  252,  63:  137 
Liability  after  forfeiture  of  stock. 

590.  A  positive  statutory  provision  that  a 
corporation  may  not  only  forfeit  stock  for 
nonpayment  of  calls,  but  collect  all  calls 
made  prior  to  the  forfeiture,  will  control 
any  principle  adopted  as  a  mere  equitable 
rule.  Mandel  v.  Swan  Land  &  C.  Co.  154 
111.  177,  40  N.  E.  462,  27:313 

591.  The  general  rule  in  the  United  States 


788 


CORPORATIONS.  V.  t,  8. 


is  that,  while  a  corporation  having  the  right 
under  the  statute  creating  it  to  declare  a 
forfeiture  of  shares  for  nonpayment  of  calls 
may  exercise  an  option  to  forfeit  the  stock 
or  sue  for  the  amount  of  the  calls,  it  cannot 
forfeit  the  stock  and  afterwards  sue  at  law 
for  such  amount.  Id. 

592.  A  right  of  recovery  by  a  foreign  cor- 
poration, of  calls  made  upon  stock  which 
has  been  forfeited  for  nonpayment  of  such 
calls,  being  in  conflict  with  the  current  of 
legislation  in  this  country,  cannot  depend 
on  a  by-law  merely,  but  must  exist  in  the 
act  under  which  the  company  is  incor- 
porated. Id. 

593.  A  statute  authorizing  recovery  after 
forfeiture  of  corporate  stock,  of  all  calh 
owing  upon  it  at  the  time  of  forfeiture,  does 
not  authorize  recovery  of  interest  and  ex- 
penses thereafter  accruing.  Id. 
On  organization  of  new  company. 

See  also  infra,  622-624. 

594.  The  "business  or  property"  of  a  cor- 
poration in  process  of  dissolution,  which  a 
new  corporation  may  be  organized  to  pur- 
chase under  §  161  of  the  English  companies 
act,  does  not  include  the  amounts  due  on 
unpaid  stock  subscriptions  of  dissentient 
stockholders.  Bank  of  China,  Japan,  and 
the  Straits  v.  Morse,  168  N.  Y.  458,  61 
N.  E.  774,  56:  139 

595.  Mere  purchase  of  shares  in  a  corpora- 
tion does  not  imply  assent  to  a  scheme  for 
winding  up  by  which  the  unpaid  subscrip- 
tions can  be  called  in,  in  excess  of  corporate 
liabilities,  and  the  excess  turned  over  to  a 
new  corporation  organized  to  take  over  the 
property  of  the  old  corporation.  Id. 

51)0.  Failure  of  a  stockholder  to  oppose 
a  scheme  for  winding  up  the  corporation 
and  turning  its  assets  over  to  a  new  one 
will  not  preclude  his  resisting  an  unjust 
assessment  upon  his  stock  in  furtherance  of 
the  scheme,  when  he  knew  nothing  of  the 
proceeding,  or  that  it  was  before  the  court, 
until  long  after  the  assessment  was  made. 

Id. 

597.  In  winding  up  a  corporation  and  or- 
ganizing a  new  one  to  take  its  property 
under  §  161  of  the  English  companies  act, 
stockholders  who  refuse  to  go  into  the  new 
corporation  cannot  be  compelled  to  pay  their 
unpaid  subscriptions  in  full,  while  the  ob- 
ligation is  canceled  in  favor  of  those  going 
in.  Id. 

598.  Upon  winding  up  a  corporation  under 
§  161  of  the  English  companies  act,  and  or- 
ganizing a  new  one  to  take  over  its  prop- 
erty, dissenting  stockholders  cannot  be  com- 
pelled to  pay  in  full  their  unpaid  stock  sub- 
scriptions if  such  payment  is  not  necessary 
to  pay  the  debts  and  liabilities  of  the  old 
company,  and  if  the  balance  is  to  be  turned 
over  to  the  new  one.  Id. 

599.  An  assessment  under  an  English 
statute,  approved  by  English  courts  in  a 
proceeding  for  winding  up  a  corporation,  to 
which  a  foreign  stockholder  has  not  as- 
sented, will  not  be  enforced  against  him 
personally  by  the  courts  of  his  domicil, 
where   it  operates  prejudicially  to  him  and 


favorably  to'  other  stockholders,  and  where 
he  neither  appeared  nor  was  personally 
served  with  process  in  the  winding-up  pro- 
ceeding. Id. 
Fraud  as  defense. 

Sufficiency  of  Proof  of  Fraud,  see  Evidence, 
2230. 

600.  Fraud  of  promoters  in  procuring  a 
subscription  to  stock  of  a  corporation  before 
its  organization  is  not  a  defense  against  an 
assessmept  on  the  stock  by  the  corporation 
after  the  subscriber  has  carried  out  his  con- 
tract and  united  with  others  in  forming  the 
corporation,  but  his  remedy  is  restricted  to 
an  action  against  the  wrongdoers.  St.  Johns 
Mfg.  Co.  V.  Munger,  106  Mich.  90,  64  N. 
W.  3,  29:  63 

601.  Creditors  of  an  insolvent  corporation 
cannot  enforce  payment  of  a  stock  subscrip- 
tion from  one  who  was  induced  by  fraud  to 
make  it,  and  who,  without  laches  in  discov- 
ering the  fraud  and  within  a  reasonable 
time  after  such  discovery,  repudiated  his 
subscription  contract  before  the  corporation 
became  insolvent.  Fear  v.  Bartlett,  81  Md. 
435,  32  Atl.  322,  '  33:  721 
Illegality  as  defense. 

See  also  supra,  537. 

602.  Stockholders  cannot  set  up  the  il- 
legality of  the  scheme  of  the  corporation, 
which  did  not  appear  on  the  face  of  the 
contract  of  subscription  or  the  prospectus 
therein  referred  to,  in  order  to  escape  lia- 
bility to  creditors  whose  debts  have  been 
contracted  upon  the  faith  of  the  subscrip- 
tions to  the  stock.  Cardwell  v.  Kelly,  95 
Va.  570,  28  S.  E.  953,  40:  240 

603.  In  a  suit  brought  in  New  York  by 
the  liquidator  of  an  English  corporation 
against  a  New  York  stockholder  to  enforce 
an  assessment  upon  his  stock,  defendant 
may  set  up  the  illegality  of  the  cajl,  or  the 
absence  of  authority  to  make  it,  although 
a  different  method  of  attacking  the  assess- 
ment might  be  necessary  were  the  suit 
brought  in  England.  Bank  of  China,  Japan, 
and  the  Straits  v.  Morse,  168  N.  Y,  458,  61 
N.  E.  774,  56:  139 
Nonpa3mient  of  tax  as  defense. 

604.  The  failure  of  a  corporation  to  pay  a 
tax  required  on  the  increase  of  its  capital 
stock  cannot  be  set  up  by  a  subscriber  to 
such  stock  as  a  defense  against  his  liability, 
when  he  has  become  president  of  the  cor- 
poration by  virtue  of  that  stock  alone. 
Peek  V.  Elliott,  24  C.  C.  A.  425,  47  U.  S. 
App.  605,  79  Fed.  10,  38:  616 
Other  defenses. 

605.  Liability  for  an  unpaid  stock  sub- 
scription cannot  be  defeated  by  showing  an 
attempt  to  transfer  the  stock,  unless  it  is 
also  shown  that  it  is  with  the  knowledge 
and  consent  of  the  transferee.  Vermont 
Marble  Co.  v.  Declez  Granite  Co.  135  Cal. 
579,  67  Pac.  1057,  56:  728 

606.  A  creditor's  knowledge  or  want  of 
knowledge  of  the  fact  that  the  stock  of  a 
corporation  was  in  part  unpaid  when  he 
extended  credit  to  the  company  does  not 
affect  the  statutory  liability  of  the  stock- 
holder to  creditors  for  the  amount  unpaid 


CORPORATIONS.  V.  f,  8. 


789 


tipon  Ills  stock.     Sprague  v.  National  Bank 
of  America,  172  111.  149,  50  N.  E.  19, 

42:  606 

6.  Stock  Paid  for  in  Property. 

Issue   of   Stock   in   Payment    for   Property 

Purchased,  see  supra,  390,  391. 
See  also  supra,  562,  566. 
For  Editorial  Notes,  see  infra,  VIII.  §  40. 

607.  Property  accepted  in  payment  of 
stocK  must  be  a  fair,  just,  lawful,  and  need- 
ed equivalent  for  the  '  money  subscribed. 
Van  Cleve  v.  Berkey,  143  Mo.  109,  44  S.  W. 
743,  42:  593 

608.  "The  amount  of  the  yalue"  of  the 
property  for  which  stock  of  a  corporation 
is  issued,  within  the  meaning,  of  Mont. 
Comp.  Stat.  §  458,  div.  5,  allowin"^  stock  to 
be  issued  for  property  to  the  amount  of  the 
value  thereof,  means  the  aiitual  or  the  fair- 
ly estimated  vahie  of  the  property  ex- 
changed for  the  shares.  Kelly  v.  Fourth  of 
July  Min.  Co.  21  Mont.  291,  53  Pac.  959, 

42:  621 

609.  An  owner  of  stock  in  a  corporation, 
issued  in  consideration  of  a  transfer  of 
property,  the  valuation  of  which  was  wholly 
speculative,  visionary,  and  imaginary,  is  lia- 
ble to  creditors  of  the  corporation  for  the 
difference  between  the  value  of  his  stock 
and  the  real  value  of  the  property.  State 
Trust  Co.  v.  Turner,  111  Iowa,  664,  82  N. 
W.  1029,  53:  136 

610.  A  stockholder  of  a  corporation  who 
was  one  of  the  corporators,  and  knew  that 
all  the  property  was  taken  at  a  gross  over- 
valuation, and  who  never  paid  for  any  of 
his  stock,  except  by  a  sale  of  property  to 
the  company,  receiving  therefor  shares  at 
less  than  a  third  of  their  par  value,  and  by 
giving  his  services  as  president,  is  liable  to 
creditors  for  the  difference  between  the  par 
value  of  the  stock  and  what  he  actually 
paid  for  it.  Boulton  Carbon  Co.  v.  Mills, 
78  Iowa,  460,  43  N.  W.  290,        _  5:  649 

611.  Promoters  of  a  corporation  to  whom 
stock  and  mortgage  bonds  are  issued  nomi- 
nally in  payment  for  property  transferred 
to  the  corporation,  which  was  in-  fact 
bought  of  a  third  person,  will  not  be  per- 
mitted to  jeopardize  such  third  person's  col- 
lection of  the  purchase  money  by  enforcing 
their  mortgage  without  paying  for  their 
stock.  Hooper  v.  Central  Trust  Co.  81  Md. 
559,    32  Atl.  505,  29:  262 

612.  Payment  of  a  stock  subscription 
amounting  to  $250,000,  by  a  bond  for  title 
to  land  on  which  only  $5,000  had  been  paid, 
and  which  was  worth  no  more  than  the 
price  at  which  it  was  bought,  leaves  the 
subscribers  liable  to  creditors  for  the  dif- 
ference between  the  actual  value  of  the  land 
and  the  amount  of  the  subscription,  where 
the  state  Constitution  prohibits  the  issue 
of  stock  except  for  money  or  property  actu- 
ally received,  and  statutes  require  payments 
by  property  to  be  at  its  money  value. 
Elyton  Land  Co.  v.  Birmingham  Warehouse 
&  E.  Co.  92  Ala.  407,  9  So.  U9,  12:  307 

613.  Fraud  is  a  necessary  legal  inference 
from  a  gross  and  obvious  overvaluation  of 


property  taken  in  payment  for  stock  of  a 
corporation,  to  which  is  superadded  the  ele- 
ment of  deliberation  in  having  grossly 
overvalued  the  property,  and  knowledge  in 
having  done  so.  Kelly  v.  Fourth  of  July 
Min.  Co.  21  Mont.  291,  53  Pac.  959,    42:  621 

614.  Mining  corporations  are  not  exempt 
from  the  principles  applicable  to  other  cor- 
porations respecting  the  issue  of  stock  in 
exchange  for  property.  Id. 

615.  A  transfer  of  a  patent  right  to  a  cor- 
poration in  partial  payment  of  a  subscrip- 
tion to  stock  as  a  mere  device  for  evading  a 
condition  that  the  stock  must  be  taken  at 
par,  followed  by  a  retransfer  to  the  sub- 
scriber at  a  nominal  consideration,  is  insuf- 
ficient to  relieve  him  from  liability  to  pay 
for  the  stock  at  its  par  value.  Peck  v. 
Elliott,  24  C.  C.  A.  425,  47  U.  S.  App.  605,  79 
Fed.  10,  38:  616 
For  what  debts  liable;  to  what  creditors. 
For  Editorial  Notes,  see  infra,  VIII.  §  40. 

616.  A  creditor  of  a  corporation  who  be- 
comes such  with  full  knowledge  as  to  the 
payment  for  stock  by  property  at  an  ex- 
cessive valuation  cannot  claim  that  the 
holders  of  such  stock  are  liable  as  stock- 
holders for  the  difference  between  the  ac- 
tual value  of  the  property  and  the  par  value 
of  the  stock  which  was  issued  for  it..  State 
Trust  Co.  v.  Turner,  111  Iowa,  664,  82 
N.  W.  1029,  53:  136 

617.  An  assignee  of  overdue  notes  of  a 
corporation  cannot  hold  a  stockholder  who 
paid  for  his  stock  only  by  a  transfer  of 
property  at  a  grossly  excessive  valuation 
liable  for  the  deficiency  in  payment,  where 
his  assignor  could  not  have  done  so  because 
he  became  a  creditor  of  the  company  with 
full  knowledge  of  all  the  facts  relating  to 
the  issuance  of  and  payment  for  the  stock. 

Id. 
Good  faith  as  a  defense. 

618.  The  belief  of  a  stockholder  that  prop- 
erty transferred  to  pay  for  stock  was  equal 
in  value  to  the  par  value  of  the  stock  will 
not  relieve  him  from  liability  on  his  sub- 
scription, as  against  those  who,  have  given 
credit  to  the  company  on  the  faith  of  its 
capital  stock,  if  the  property  is  not,  in 
point  of  fact,  of  such  value.  Van  Cleve  v. 
Berkey,  143  Mo.  109,  44  S.  W.  743,     42:  593 

619.  Good  faith  in  the  valuation  put  upon 
property  for  which  stock  of  a  corporation  is 
issued  is  demanded,  and  all  that  is  de- 
manded, by  the  law  which  provides  that 
stock  may  be  issued  for  property  to  the 
amount  of  the  value  thereof.  Kelly  v. 
Fourth  of  July  Min.  Co.  21  Mont.  291,  53 
Pac.  959,  42:  621 

620.  The  belief  that  a  prudent  and  sensi- 
ble business  man  would  hold  in  the  ordinary 
conduct  of  his  own  business  affairs  is  what 
constitutes  good  faith  in  the  valuation  of 
property  for  which  stock  of  a  corporation 
is  issued.  Id. 
Failure  to  sign  subscription  list  as  defense. 

621.  Failure  to  sign  a  formal  stock  sub- 
scription list  cannot  release  the  holder  of 
stock  which  was  issued  in  exchange  for 
property  from  liability  as  the  holder  of  un- 
paid stock,  when  the  stock  was  issued  to 


r90 


CORPORATIONS,  V.  f,  4. 


him  with  his  knowledge  of  the  fact  that  the 
property  was  not  worth  what  it  was  esti- 
mated to  be  in  the  exchange.  Kelly  v. 
Fourth  of  July  Min.  Co.  21  Mont.  291,  53 
Pac.  959,  42:  621 

Transfer  of  assets  to  new  corporation. 

622.  A  transfer  of  all  the  assets  of  a  cor- 
poration to  a  new  company  in  consideration 
of  its  assuming  the  indebtedness  of  the  old 
one  and  exchanging  its  stock,  share  for 
share,  for  that  of  the  old  company,  thereby 
giving  each  shareholder  the  same  relation 
to  the  property  that  he  previously  sustained, 
does  not  constitute  a  contract  of  bargain 
and  sale  of  the  assets,  or  establish  that  their 
value  is  sufficient  to  pay  for  the  new  stock 
in  full.  Sprague  v.  National  Bank  of 
America,  172  111.  149,  50  N.  E.  19,        42:  606 

623.  A  liability  to  creditors  of  an  old  cor- 
poration for  impaid  stock  of  a  new  com- 
pany is  within  the  liability  of  the  holders 
of  unpaid  stock  for  debts  of  the  company, 
imposed  by  111.  Rev.  Stat.  chap.  32,  §  8, 
where  the  new  company  has  taken  the  as- 
sets and  assumed  the  debts  of  the  old  one 
and  was  organized  to  evade  the  stringent 
liability  of  the  stockholders  in  the  old  com- 
pany under  the  laws  of  another  state.      Id. 

624.  Stock  of  a  new  company  issued  in 
exchange,  share  for  share,  for  that  of  a 
company  existing  under  the  laws  of  an- 
other  state,  without  any  payment  therefor 
except  the  transfer  of  the  old  company's 
stock  and  assets,  when  this  is  done  to  evade 
the  stringent  liability  of  stockholders  under 
the  laws  governing  the  original  company, 
will  be  deemed  paid  as  against  the  creditors 
of  the  old  company  only  to  the  extent  that 
the  actual  value  of  the  property  actually 
received  from  the  old  company  exceeded  the 
sum  of  its  indebtedness.  Id. 

4.  Proceedings  to  Enforce. 

Multifariousness  of  Bill  against  Stock- 
holders, see  Action  or  Suit,  103. 

Successive  Actions  against  Stockholder,  see 
Action  or  Suit,  78,  79. 

Right  to  Appeal,  see  Appeal  and  Error,  102. 

Judgment  Fixing  Amount  of  Contribution  as 
Provable  Claim,  see  Bankruptcy,  37. 

Receiver's  Right  to  Prove  Claim  against 
Bankrupt  Stockholder's  Estate,  see 
Bankruptcy,  29. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
169,  190-198,  346-353. 

Jurisdiction  of  Action,  see  Courts,  39. 

Conflict  of  Jurisdiction,  see  Courts,  428. 

Equity  Jurisdiction,  see  Equity,  44,  45,  53. 

By  Garnishment,  see  Garnishment,  3,  102. 

Limitation  of  Action,  see  Limitation  of 
Actions,  55,  193. 

Interruption  of  Running  of  Limitations  as 
to,  see  Limitation  of  Actions,  229. 

Enforcing  by  Cross  Bill,  see  Pleading,  546. 

Venue  of  Action,  see  Venue,  4. 

See  also  supra,  578,  579. 

For  Editorial  Notes,  see  infra,  VIII.  §§  42, 
43. 

625.  Equity  may  afford  a  remedy  against 
stockholders  to  enforce  a  statutory  liability 


when  the  statute  prescribes  no  remedy  or 
form  of  redress.  Kelly  v.  Fourth  of  July 
Min.  21   Mont.  291,  53  Pac.  959,         42:  62*1 

626.  A  proceeding  under  the  statute  for  an 
execution  for  unpaid  subscriptions  to  cor 
poratc  stock  cannot  be  maintained  after 
the  appointment  of  a  receiver  for  the  pur 
pose  of  collecting  the  assets  of  the  corpora- 
tion. Rouse,  H.  &  Co.  v.  Detroit  Cycle  Co. 
Ill  Mich.  251,  69  N.  W.  511,  38:  794 
By  receiver  or  assignee. 

By  Assignee  for  Creditors  in  Other  State, 
see  Assignments  for  Creditors,  26. 

Of  Insolvent  Bank,  see  Banks,  24,  25. 

Federal  Jurisdiction  in  Case  of,  see  Courts, 
369,  370. 

As   Assets   of   Receiver,   see   Evidence,    187. 

See  also  infra,  638,  740;  Receivers,  119,  120, 
128,  141,  143,  145,  147. 

627.  A  receiver  had  no  authority  to  bring 
an  action  against  a  stockholder  for  a  debt  of 
the  corporation,  under  N.  Y.  Laws  1892, 
chap.  688,  §  55,  although  such  right  of  ac- 
tion is  given  him  by  an  amendment  of  that 
statute  in  1897.  Hirshfeld  v.  Fitzgerald, 
157  N.  Y.  166,  51  N.  E.  997,  46:  839 

628.  Receivers  cannot  maintain  an  action 
to  enforce  the  liability  of  stockholders  in  a 
bank  for  its  debts,  under  Md.  Acts  1888, 
chap.  294,  for  the  amount  of  their  respective 
shares  of  stock,  since  the  fund  arising  from 
such  liability  is  in  no  sense  an  asset  of  the 
corporation,  and  the  receivers  have  no  iii- 
terest  in  it.  Col  ton  v.  Mayer,  90  Md.  711. 
45  Atl.  874,  '  47:  617 

629.  A  receiver  appointed  in  an  action  for 
the  sequestration  of  the  assets  of  an  insol- 
vent corporation,  under  the  provisions  of 
Minn.  Gen.  Stat.  1894,  chap.  76,  has  no  au- 
thority, except  in  cases  where  it  is  other- 
wise provided  by  statute,  to  enforce  the  in- 
dividual liability  of  the  stockholders  for 
the  debts  of  the  corporation.  Minneapolis 
Baseball  Co.  v.  Citv  Bank,  66  Minn.  441. 
69  N.  W.  331,  38:  41.5 

630.  A  stockholder's  liability,  which  is 
contractual  under  the  statute,  becomes  a 
part  of  the  assets  which  pass  to  a  receiver 
for  the  payment  of  corporate  debts.  Gush- 
ing V.  Perot,   175  Pa.  66,  34  Atl.  447, 

34:  737 

631.  An  assignee  of  a  corporation  who  has 
not  resigned  his  trust,  where  there  are  cred- 
itors whose  claims  he  must  provide  for,  is 
not  prevented  from  bringing  suit  to  enforce 
the  liability  of  a  stockholder  by  the  fact 
that  he  has  suffered  the  stockholders  to  re- 
sume business  with  the  machinery  assigned 
to  him,  taking  a  bond  for  its  protection. 
Cartwright  v.  Dickinson,  88  Tenn.  476,  12 
S.  W.  1030,  7:  706 
By  creditor. 

Impairment  of  Obligation  of  Contract  as  to, 
see  Constitutional  Law,  1142. 

See  also  infra,  760. 

For  Editorial  Notes,  see  infra,  VlJl.  §§  42, 
43. 

632.  The  right  of  action  in  favor  of  cred- 
itors of  a  corporation  against  the  holders 
of  bonus  stock  does  not  accrue  until  the 
corporation    becomes   insolvent.     Hospes   v. 


CORPORATIONS,   V.  g,  1. 


TM 


Northwestern  Mfg.  &  C.  Co.  48  Minn.  174, 
50  N.  W.  1117,  15:  470 

633.  The  right  of  creditors  to  compel  the 
holders  of  "bonus"  stock  to  pay  for  it  con- 
trary to  their  actual  agreement  with  the 
corporation  does  not  rest  on  any  implied 
contract  or  upon  any  "trust  fund"  doctrine, 
but  upon  the  ground  of  fraud  in  the  mis- 
representation as  to  the  actual  amount  of 
capital,  upon  the  faith  of  which  persona 
have  dealt  with  the  corporation  and  given  it 
credit.  Id. 

634.  The  appointment  of  a  receiver  for  a 
Kansas  corporation  does  not  preclude  an 
action  by  a  creditor  of  the  corporation  to 
enforce  the  additional  or  double  liability  of 
a  stockholder.  Fidelity  Ins.  T.  &  S.  D.  Co. 
V.  Mechanics'  Sav.  Bank,  38  G,  C.  A.  193, 
97  Fed.  297,  56:  228 

635.  The  fact  that  creditors  of  a  corpora- 
tion are  also  directors  of  the  company  does 
not  preclude  them  from  enforcing  the  con- 
stitutional liability  of  the  stockholders  for 
the  payment  of  their  debts,  although  they 
will  be  held  to  strict  proof  of  the  debts 
and  of  their  own  good  faith  in  the  premises. 
Janney  v.  Minneapolis  Industrial  Exposi- 
tion, 79  Minn.  488,  82  K  W.  984,        50:  273 

636.  The  right  of  a  creditor  of  a  eorpora- 
tion  to  proceed  individually  against  stock- 
holders is  merged  in  a  decree  obtained  by 
such  creditor  in  another  state,  in  a  court  of 
competent  jurisdiction,  directing  the  col- 
lection of  such  claims  by  a  receiver.  Cas- 
tleman  v.  Templeman,  87  Md.  546,  40  Atl. 
275,  .  41 :  307 

637.  A  creditor  who  brings  an  action 
against  a  stockholder  of  a  bank  under  New 
York  banking  law  1892,  §  52,  although  he 
brings  it  on  behalf  of  himself  and  all  other 
creditors  similarly  situated  who  may  choose 
to  come  in,  is  not  a  trustee  for  other  credit- 
ors, to  such  extent,  at  least,  as  to  require 
him  to  carry  on  the  litigation  for  their  in- 
terest in  opposition  to  his  own  or  after  he 
has  settled  his  claim.  Hirshfeld  v.  Fitz- 
gerald, 157  N.  Y.  166,  51  N.  E.  997,  46:  839 
Conditions  precedent. 

638.  The  recovery  of  judgment  against  a 
corporation,  and  the  return  of  execution 
unsatisfied,  as  a  condition  of  the  mainte- 
nance of  an  action  against  a  stockholder  in 
a  domestic  corporation,  are  not  necessary 
before  suit  by  a  receiver  against  a  stock- 
holder of  a  foreign  corporation,  which  is  per- 
mitted in  the  exercise  of  comity,  since  in 
such  case  service  of  process  in  the  state 
could  not  be  had  against  the  corporation. 
Howarth  v.  Angle,  162  N.  Y.  179,  56  N.  E. 
489,  ■     47:  725 

639.  A  creditor's  cause  of  action  against  a 
stockholder  does  not  accrue  until  judgment 
against  the  corporation  and  the  exhausting 
of  the  remedy  by  execution,  under  the  Ne- 
braska Constitution  providing  for  liability 
of  the  stockholder  in  certain  cases,  for  cor- 
porate debts  which  have  been  first  ascer- 
tained and  after  the  corporate  property  has 
been  exhausted.  Globe  Pub.  Co.  v.  State 
Bank,  41  Neb.   175,  59  N.  W.  683,     27:  854 


g.  Stockholders'    Meetings;    Voting. 
1.  In  General. 

Meetings  of  Corporate  Officers,  see  supra, 

IV.  g,  1. 
Record  of  Funds  as  Evidence,  see  Evidence, 

958. 
Mandamus   to   Compel  Calling  of  Meeting, 

see  Mandamus,  87,  88. 
See  also  supra,  182. 
For  Editorial  Notes,  see  infra,  VIII.  §  44. 

640.  Corporate  stockholders  may,  at  a 
duly  convened  meeting  of  the  stockholders, 
lawfully  enter  into  or  authorize  a  contract 
between  the  company  and  a  third  party,  in 
which  directors  are  personally  interested, 
if  it  is  done  by  them  with  notice  of  such 
interest.  Hodge  v.  United  States  Steel 
Corp.  (N.  J.  Err.  &  App.)  64  N.  J.  Eq.  807, 

54  Atl.  1,  60:  742 
Control  of  court. 

See  also  supra,  215. 

641.  The  election  of  directors  of  a  cor- 
poration may  be  supervised  and  controlled 
by  a  court  of  equity  and  a  master  appointed 
to  preside,  whenever  it  is  made  to  appear 
that,  by  means  of  fraud,  violence,  or  other 
unlawful  conduct  on  the  part  of  a  portion 
of  the  corporators,  a  fair  and  honest  elec- 
tion cannot  otherwise  be  held.  Tunis  v. 
Hestonville,  M.  &  F.  Pass.  R.  Co.  149  Pa.  70, 
24  Atl.  88,  15:  665 
Place  of  meeting. 

Outside  of  State,  see  Benevolent  Societies,  1. 

642.  A  corporation  receiving  its  charter 
from  one  state  cannot  hold  corporate  meet- 
ings in  another  for  the  purpose  of  organiz- 
ing, electing  officers,  or  performing  any 
strictly  corporate  functions  In  its  organiza- 
tion. "  Duke  V.  Taylor,  37  Fla.  64,  19 
So.  172,  31:484 
Notice. 

043.  The  failure  to  give  notice  of  a  meet- 
ing at  which  corporate  bonds  and  mortgage 
are  authorized  is  immaterial,  when  all  per- 
sons having  any  beneficial  interest  in  the 
corporation  as  stockholders  have  ratified  the 
action,  with  full  knowledge  of  the  facts. 
Nelson  v.  Hubbard,  96  Ala.  238,  11  So.  428, 

17:  375 

644.  Previous  notice  must  be  given  to 
render  valid  a  change,  at  a  regular  annual 
corporate  meeting,  in  the  by-laws  of  a  cor- 
poration, increasing  the  number  of  direct- 
ors. Bagley  v.  Reno  Oil  Co.  201  Pa.  78,  50 
Atl.  760,  ^  56:  184 

645.  Sufficient  notice  to  stockholders  of 
regular  meetings  is  given  by  a  charter  or 
by-laws  which  fix  the  time  and  place.  Alor- 
rill  V.  Little  Falls  Mfg.  Co.  53  Minn.  371, 

55  N.   W.   547,  21 :  174 

646.  A  meeting  of  the  stockholders,  called 
for  the  issue  of  preferred  stock,  is  properly 
called  under  the  provisions  of  Md.  Code, 
art.  23,  §  76,  providing  for  meetings  to  in- 
crease or  diminish  the  capital  stock,  to  be 
called  by  directors,  on  four  weeks'  published 
notice,  and  is  not  within  §  6  of  the  same 
article,  which  applies  to  meetings  generally. 
Heller  v.  National  Marine  Bank,  89  Md. 
602,  43  Atl.  800,  45:  438 


799 


CORPORATIONS,  V.  g,  «. 


Quonun.  

For  Editorial  Notes,  see  infra,  VUl.  §  45. 

647.  Such  of  the  stookholdera  as  actual- 
ly assemble  at  a  properly  convened  meeting, 
although  a  minority  of  the  whole  number 
and  representing  only  a  minority  of  the 
stock,  even  if  but  one  is  present,  constitute 
a  quorum  for  the  transaction  of  business, 
unless  otherwise  provided  in  the  charter  or 
bv-laws.  Morrill  ▼.  Little  Falls  Mfg.  Co. 
53  Minn.  371,  55  N.  W.  547,  21:  174 
Organizing  other  meeting. 

648.  The  denial  of  his  right  to  vote  will 
not  justify  one  who  has  a  majority  of  the 
stock  of  a  corporation  in  withdrawing  from 
a  meeting  and  organizing  another  meeting 
and  voting  there;  but  his  vote  at  the  orig- 
inal meeting  would  have  been  effective  not- 
withstanding the  rejection.  Re  Argus 
Printing  Co.  1  N.  D.  434,  48  N.  W.  347, 

12:  781 

649.  Holders  of  a  majority  of  the  stock 
of  a  corporation,  after  acquiescing  in  the 
oiganization  of  a  meeting  and  participating 
in  its  business,  cannot  withdraw  and  or- 
ganize another  meeting  at  the  same  time 
and  place.  Id. 

2.  Voting. 
a.  In  General. 

Evidence  as  to,  to  Show  Gift  of  Stock,  see 

Evidence,  2149. 
See  also  supra,  648. 

650.  When  the  methods  of  voting  are  not 
fixed  by  general  law,  corporations  may  make 
a  law  for  themselves,  subject  to  the  quali- 
fication that  such  laws  and  regulations  as 
they  make  shall  not  conflict  with  the  laws 
of  the  United  States.  Detwiller  v.  Com. 
ex  rel.  Dickinson,  131  Pa.  614,  18  Atl.  990, 

7:  357 

651.  A  regtilation  of  a  corporation,  that 
stockholders  shall  have  one  vote  for  each 
share  held  by  them  up  to  ten  shares,  and 
fixing  the  proportion  which  his  votes  shall 
bear  to  his  shares  above  that  number,  is  a 
reasonable  regulation,  uniform  in  its  opera- 
tion, conflicts  with  no  law,  and  is  binding 
on  all  the  shareholders.  Id. 

652.  Stock  held  by  executors  eannot  be 
voted  when  they  disagree  as  to  the  way  in 
which  the  vote  shall  be  cast.  Tunis  v. 
Hestonville,  M,  &  F.  Pass.  R.  Co.  149  Pa. 
70,  24  Atl.  88,  15:  665 

653.  A  vote  by  all  the  stockholders  of  a 
corporation  at  a  time  when  none  but  pro- 
moters or  their  nominees  are  stockholders, 
authorizing  the  issuance  of  paid-up  stock 
to  the  promoters  for  their  services,  is  not 
sufTicient  to  validate  such  issuance.  Hay- 
ward  v.  Leeson,  176  Mass.  310,  57  N.  E.  656, 

49:  725 
Majority  vote. 

654.  A  vote  of  stockholders  representing 
a  majority  of  the  subscribed  capital  stock 
is  necessary  to  the  choice  of  a  director.  Re 
Arc,ru3  Printing  Co.  1  N.  D.  434,  48  N.  W. 
347,  12:  781 


655.  All  the  stockholders  of  a  corporation 
are  bound  by  all  acts  and  proceedings  within 
the  scope  and  authority  conferred  by  the 
charter,  which  are  approved  or  sanctioned 
by  the  vote  of  a  majority  of  the  stockhold- 
ers duly  taken  and  ascertained  according 
to  law,  where  the  by-laws  of  the  corpora- 
tion, adopted  by  the  stockholders  in  pursu- 
ance of  authority  given  by  the  act  of  in- 
corporation, provide  that  a  majority  vote 
at  a  stockholder's  meeting  shall  be  binding 
on  the  corporation.  Hodge  v.  United  States 
Steel  Corp.  (N.  J.  Err.  &  App.)  64  N.  J. 
Eq.  807,  54  Atl.  1,  60:  742 
Trust  or  pooling  agreement  as  to. 
Injunction  against,  see  Injunction,  225. 
Specific  Enforcement  of  Contract  as  to,  see 

Specific  Performance,  8,  22,  71. 
See  also  infra,  670. 

656.  A  contract  to  allow  another  to  con- 
trol the  voting  of  stock,  based  upon  a  prom- 
ise of  the  latter  to  secure  an  oflSce  in  the 
corporation  for  the  owner  of  the  stock,  is 
illegal;  and  such  illegal  promise,  although 
only  a  part  of  the  consideration  of  the  con- 
tract, renders  the  whole- contract  void.  Gage 
V.  Fisher,  5  N.  D.  297,  65  N.  W.  809,    31:  557 

657.  A  voting  trust  under  which  a  ma- 
jority of  the  shares  of  stock  of  a  railroad 
compaay  are  held  in  one  block,  to  be  voted 
in  the  interest  of  another  corporation  which 
has  control  of  competing  lines  of  railroad, 
is  illegal  at  common  law  as  well  as  under 
Ga.  Const.  §  5,  ?  4,  which  prohibits  agree- 
ments to  defeat  or  lessen  competition  be- 
tween corporations;  and  an  injunction  may 
be  granted  against  the  voting  of  such  stock 
while  thus  held.  Clarke  v.  Central  R.  & 
Bkg.  Co.  50  Fed.  338,  15:  683 

658.  A  pooling  arrangement  by  which 
stockholders  transfer  their  shares  to  trus- 
tees to  be  voted  as  directed  by  holders  of 
the  majority  thereof  for  the  period  of  five 
years,  unless  the  holders  of  two  thirds  of 
such  stock  vote  to  put  an  end  to  the  trust 
sooner,  is  contrary  to  public  policy  and  void 
as  against  the  right  of  an  assignee  of  some 
of  the  trustees'  certificates  to  have  the 
shares  thereby  represented  issued  to  him  in 
his  own  name  and  under  his  own  control. 
Harvey  v.  Linville  Improv.  Co.  118  N.  C. 
693,  24  S.  E.  489,  32:  265 

659.  Owners  of  the  majority  of  stock  in 
a  corporation  may  lawfully  agree  to  be 
bound  by  the  will  of  the  majority  of  them- 
selves in  voting  the  stock.  Smith  v.  San 
Francisco  &  N.  P.  R.  Co.  115  Cal.  584,  47 
Pac.  583,  35:  309 

6G0.  A  separation  of  the  voting  power  of 
stock  in  a  corporation  from  its  ownership 
is  not  illegal  or  against  public  policy.       Id 

661.  An  agreement  to  retain  the  power  of 
voting  stock  for  five  years,  so  as  to  keep 
the  control  of  the  corporation  from  passing 
to  other  persons,  made  by  persons  who 
united  in  purchasing  a  block  of  stock,  is  not 
illegal  as  in  restraint  of  trade.  Id. 

G62.  An  owner  of  stock  cannot  revoke  an 
agreement  made  with  other  persona  as  a 
condition  of  their  joining  to  purchase  a  ma- 
jority of  the  stock  of  a  corporation,  al- 
though   they   take   certificates   in   their   in- 


CORPORATIONS,  V.  g,  1. 


798 


diridual  names,  to  the  effect  that  the  stock 
shall  be  voted  as  a  unit  for  five  years  as  a 
majority  of  them  shall  determine  by  bal- 
lot. Id. 
Proxies. 

See  also  infra,  673,  674. 
For  Editorial  Notes,  see  infra,  VIII.  §  46. 

663.  A  regulation  of  a  corporation  that 
votes  may  be  cast  by  proxy  is  a  reasonable 
regulation,  uniform  in  its  application,  works 
no  wrong  to  any  shareholder,  and  conflicts 
with  no  law  of  Pennsylvania.  Detwiller  v. 
Com.  ex  rel.  Dickinson,  131  Pa.  614,  18  Atl. 
990,  7:  357 

664.  A  proxy  for  voting  stock  of  a  cor- 
poration, made  by  the  holder  of  the  stock 
while  enjoined  from  voting  it  directly  on 
the  ground  of  public  policy,  cannot  carry 
the  right  to  vote  it.  Clarke  v. 'Central  R. 
&  Bkg.  Co.  50  Fed.  338,  15:  683 

665.  A  by-law  providing  that  no  proxy 
should  be  voted  by  anyone  who  is  not  a 
stockholder  of  the  corporation  is  invalid 
under  Cal.  Oiv.  Code,  §  312,  providing  gen- 
erally that  stockholders  may  be  represented 
by  proxies.  People's  Home  Sav.  Bank  v. 
San  Francisco  Super.  Ct.  104  Cal.  649,  38 
Pac.  452,  29:  844 

666.  A  proxy  authorizing  the  voting  of  a 
block  of  stock  in  accordance  with  the  deter- 
mination of  a  majority  of  those  who  own  it 
is  made  by  an  agreement  into  which  they 
enter  as  one  of  the  conditions  of  their  unit- 
ing to  purchase  the  stock,  that  they  will 
vote  it  as  a  unit  for  five  years  in  accord- 
ance" with  the  decision  of  a  majority  to  be 
determined  by  ballot.  Smith  v,  San  Fran- 
cisco &  N.  P.  R.  Co.  115  Cal.  584,  47  Pac. 
683,  35:  309 

6.  Who  Entitled  to  Vote. 

See  also  supra,  218-220,  403,  457,  505. 
For  Editorial  Notes,  see  infra,  VIII.  §§  31, 
44. 

667.  Fraudulent  representations  made  by 
a  stockholder  in  a  corporation  as  to  its 
future  action,  by  which  a  person  is  in- 
duced to  subscribe  to  its  stock,  cannot  give 
such  person  a  right  to  control  that  stock- 
holder's vote,  for  the  purpose  of  determin- 
ing the  future  action  of  the  company.  Con- 
verse V.  Hood,  149  Mass.  471,  21  N.  E.  878, 

4:  521 
Stockholder  personally  interested. 

668.  At  a  meeting  of  the  shareholders  of 
a  corporation,  each  shareholder  represents 
himself  and  his  own  interests  solely,  and  in 
no  sense  acts  as  a  trustee  or  representative 
of  others.  Hence  he  has  a  legal  right  to 
vote  upon  a  measure,  even  though  he  has  a 
personal  interest  therein  separate  from  other 
shareholders.  Gamble  v.  Queens  Coimty 
Water  Co.  123  N.  Y.  91,  25  N.  E.  201, 

9:  527 

669.  Stockholders  in  a  corporation  are 
under  no  disability  to  vote  on  the  ques- 
tion of  entering  into  a  contract  with  direct- 
ors of  the  corporation  because  they  are  also 
directors,  as  they  do  not  vote  in  their  fiduci- 
ary capacity,  but,  like  other  stockholders, 
in  the  right  of  the  shares  of  stock  held  by 


them.  Hodge  v.  United  States  Steel  Corp. 
(N.  J.  Err.  &  App.)  64  N.  J.  Eq.  807,  54 
Atl.  1,  60:  742 

Trust. 

670.  A  trust  company  which  is  simply  a 
stakeholder  of  corporate  stock  pledged  as 
collateral  for  bonds  of  another  corporation 
is  not  a  proper  party  to  vote  the  stock, 
where  it  is  also  a  trustee  of  indebtedness 
of  the  corporation  and  an  agent  for  its 
creditors.  Clarke  v.  Central  R.  &  Bkg.  Co. 
50  Fed.  338,  15:  683 
Rival  company. 

671.  A  railroad  company  which  has  ac- 
quired a  majority  of  the  stock  of  another 
railroad  company  will  not  be  allowed,  in  the 
absence  of  express  statutory  authority,  to 
vote  such  stock,  either  by  itself  or  by  other 
persons  acting  in  its  interest,  in  the  election 
of  officers  or  in  matters  pertaining  to  the 
management  and  control  of  the  latter  com- 
pany; at  least  where  the  two  roads  are 
rivals  having  substantially  the  same  field 
of  operation,  where  a  conflict  of  interest 
may  arise  in  tue  matter  of  expenditure,  or 
in  the  division  of  patronage  or  of  earnings, 
or  where  the  profits  of  one  company  may 
be  enhanced  by  a  diminutj-^n  of  those  of 
the  other.  Memphis  &  C.  R.  Co.  v.  Woods, 
88  Ala.  630,  7  So.  108,  7:  605 

672.  A  limitation  as  to  the  number  of 
votes  which  a  single  stockholder  of  a  cor- 
poration is  entitled  to  cast  in  the  direction 
of  its  affairs  cannot  be  evaded  by  another 
corporation  holding  stock  in  the  former  by 
the  gratuitous  transfer  of  blocks  of  stock  to 
its  own  directors  individually,  for  the  pur- 
pose of  having  each  vote  the  stock  standing 
in  his  name  in  its  interest.  Mack  v.  De 
Bardeleben  Coal  &  I.  Co.  90  Ala.  396,  8  So. 
150,  9:  650 
Pledgee. 

See  also  supra,  670. 

For  Editorial  Notes,  see  infra,  VIII.  §  31. 

673.  The  right  to  vote  stock  held  by  exec- 
utors in  trust  under  a  will  is  not  affected 
by  a  codicil  directing  that  it  shall  be  voted 
as  one  executor  shall  direct,  and  that  the 
other  executors  shall  give  him  a  proxy, 
where  no  proxy  has  in  fact  been  given  and 
no  legal  proceedings  taken  to  enforce  these 
provisions.  Tunis  v.  Hestonville,  M.  &  F. 
Pass.  R.  Co.  149  Pa.  70,  24  Atl.  88,      15:  665 

674.  The  pledgee  of  stock,  in  whose  name 
it  stands  on  the  corporate  records,  has  a 
right  to  vote  the  stock  at  a  meeting  of  the 
directors,  and  the  pledgeor  has  not;  but 
equity  may  compel  the  pledgee  in  a  proper 
case  to  give  him  a  proxy.  Re  Argus  Print- 
ing Co.  1  N.  D.  434,  48  N.  W.  347,  12:  781 
Dummy. 

675.  A  person  holding  stock  in  a  corpora- 
tion as  a  dummy  for  the  real  owner,  with- 
out any  interest  in  the  stock,  which  is 
registered  in  his  name  for  the  purpose  of 
enabling  the  real  owner  to  avoid  certain 
statutory  liabilities,  whether  such  purpose 
would  be  effectual  or  not,  is  not  a  bona 
fide  holder  who  can  be  entitled  to  vote 
upon  it  under  Cal.  Code  1872,  §  312.  Smith 
V.  San  Francisco  &  N.  P.  R.  Co.  115  Cal. 
584,  47  Pac.  583,  35:  309 


794 


CORPORATIONS,  VI.  a. 


VI.  Dissolution;  Forfeiture;  Insolvency, 
a.  In  General. 

Winding  up  of  Foreign  C!ompanv,  see  infra, 
VII.  d. 

Right  of  Individual  to  Assail  Franchise,  see 
Action  or  Suit,  56. 

Dissolution  of  Benevolent  Societies,  see 
Benevolent  Societies,  V. 

Power  to  Inquire  as  to  Misuse  of  Franchise 
by  Corporation  Engaged  in  Interstate 
Commerce,  see  Commerce,  27. 

Due  Process  in  Forfeiture  of  Franchise,  see 
Constitutional  Law,  806. 

Due  Process  as  to  Dissolution,  see  Consti- 
tutional Law,  640,  641. 

Dissolution  as  Impairment  of  Obligation, 
see  Constitutional  Law,  1140. 

Construction  of  Contract  to  Indemnify  by 
Purchaser  of  its  Business,  see  Contracts, 
345. 

Of  Insurance  Company,  see  Insurance,  I.  c. 

Collateral  Attack  on  Decree  for  Dissolution, 
see  Judgment,  143. 

Limitation  of  Time  to  Forfeit  Charter,  see 
Limitation   of  Actions,   192. 

Parties  to  Action  for  Usurping  Franchise, 
see  Parties,  155. 

Admission  of  Corporate  Existence,  see 
Pleading,  109. 

Necessity  of  Alleging  Cessation  of  Cor- 
porate Existence,  see  Pleading,  4. 

Allegation  of  Dissolution,  see  Pleading,  522. 

Quo  Warranto  to  Oust  from  Right  to  Manu- 
facture Oleomargarine,  see  Quo  War- 
ranto, 4,  5. 

Right  to  Oust  Street  Railway  from  Fran- 
chise, see  Quo  Warranto,  11,  12. 

ApfMjintment  of  Receiver  on  Forfeiture  of 
Charter,  see  Receivers,  29,  39. 

Title  of  Statute  as  to,  see  Statutes,  189- 
191. 

Retrospective  Statute  as  to,  see  Statutes, 
543. 

Depriving  Turnpike  Company  of  Franchise, 
see  Tolls  and  Toll  Roads,  4. 

Forfeiture  of  Water  Company's  Franchise, 
see  Waters,  554-560. 

For  Editorial  Notes,  see  infra,  VIII.  §§  8. 
48-51. 

676.  The  existence  of  a  corporation  or 
its  title  to  property  cannot  be  attacked 
collaterally  on  the  ground  of  its  dissolution 
or  forfeiture  of  franchise,  until  dissolution, 
lias  been  judicially  pronounced.  Parker  v. 
Bethel  Hotel  Co. '96  Tenn.  252,  34  S.  W. 
209,  31:706 

677.  A  corporation  cannot  be  sued  as  such 
iind  brought  into  court,  and  the  action 
maintained  against  it,  on  the  ground  that  it 
is  not  a  corporation;  and  other  defendants 
sued  jointly  with  it  cannot  be  charged  in 
such  an  action  with  having  jointly,  with 
such  corporation,  usurped  the  rights  of  a 
corporation,  etc, — because  by  suing  a  cor- 
poration as  such  its  existence  is  admitted. 
People  ex  rel.  Attorney  General  v.  Stand- 
lord,  77  Cal.  360,  19  Pac.  693,  2:  92 
What  constitutes  a  dissolution. 

Closing  Bank  Doors  as,  see  Banks,  307. 


Sale   of  Liquor  by   Club   as   Forfeiture   of 

Charter,  see  Clubs,  2. 
For  Editorial  Notes,  see  infra,  VIII.  §  48. 

678.  A  foreclosure  sale,  under  a  second 
mortgage,  of  the  property  and  franchises 
of  a  railroad  company,  to  a  foreign  corpora- 
tion, does  not  extinguish  the  mortgagor  cor- 
poration, nor  cause  the  purchaser  to  succeed 
to  it  as  a  corporation,  so  as  to  relieve  it 
from  liability  for  the  negligent  management 
of  the  road,  where  the  statutes  contemplate 
that,  before  the.  dissolution  of  such  a  cor- 
poration by  sale  of  its  property,  another 
corporation  shall  be  provided  to  take  its 
place.  James  v.  Western  North  Carolina 
R.  Co.   121  N.  C.  523,  530,  28  S.   E.  537, 

46:  306 

679.  Section  697  of  the  North  Carolina 
Code,  providing  that  a  foreclosure  sale  of  the 
property  and  franchises  of  a  corporation 
effects  its  dissolution,  must  be  construed 
with  §§  701,  1936,  and  2005,  which  require 
the  provision  of  another  corporation  to  take 
the  place  of  the  former  one  before  such  dis- 
solution can  result.  Id. 

680.  A  company  is  dissolved  upon  the  con- 
summation of  a  sale  of  its  corporate  prop- 
erty and  the  execution  of  a  deed  therefor, 
under  a  statute  which  states  that  the  ob- 
ject of  the  sale  is  to  dissolve  the  company. 
Snell  V.  Chicago,  133  111.  413,  24  N.  E.  532, ' 

8:  858 

681.  Nonuser  of  the  franchise  of  a  cor- 
poration and  the  sole  proprietorship  of  all 
its  capital  stock  will  not  constitute  a  dis- 
solution of  the  corporation  without  a  ju- 
dicial adjudication  thereof.  Parker  v.  Bethel 
Hotel  Co.  96  Tenn.  252,  34  S.  W.  209,  31:  706 

682.  An  existing  corporation  is  not  dis- 
solved by  the  fact  that  its  shares  are  held 
by  a  less  number  of  persons  than  the  law 
requires  as  a  condition  precedent  to  its  or- 
ganization. Re  Belton,  47  La.  Ann.  1614,  18 
So.  642,  30:  648 

683.  Neither  the  want  of  officers  of  a  cor- 
poration by  reason  of  failure  to  elect,  or 
by  death,  nor  the  burning  of  the  mill  which 
it  was  the  object  of  the  corporation  to  car- 
ry on,  will  of  itself  work  a  dissolution.     Id. 

084.  The  '  election    of    nonresident   direct- 
ors  without  the   passage  of  a  by-law  per-  , 
mitting   it   will   not,   ipso   facto   dissolve   a           j 
corporation  of  a  state  whose  statutes  pro-         j 
vide  tliat  every  director  of  its  corporations 
must  be  a  resident  of  the  state  unless  the 
corporation    has   otherwise   provided   in    its 
by-laws.    Demarest  V.  Grant,  128  N.  Y.  205, 
28   N.    E.    645,                                             13:  854 

685.  The  failure  of  a  person  nominated 
by  the  majority  of  the  stockholders,  to  ac- 
cept and  qualify  as  receiver  of  a  dissolved 
corporation,  does  not  prevent  the  decree 
from  terminating  its  existence.  Nelson  v. 
Hubbard,  96  Ala.  238,  11  So.  428,  17:  375 
Leave  to  forfeit. 

686.  Leave  will  not  be  granted  to  insti- 
tute proceedings  to  forfeit  the  franchises  of 
a  solvent  active  corporation  carrying  out 
the  purposes  of  its  creation  in  supplying 
the  necessities  of  a  large  number  of  people, 
and   whose   securities  are  held  by  innocent 

persons,    in    the    absence   of   a   clear    wilful 


CORPORATIONS.  VI.  b. 


795 


misuse,  abuse,  or  nonuse  of  its  franchises. 
State  ex  rel.  Mylrea  v.  Janesville  Water 
Power  Co.  92  Wis.  496,  66  N.  W.  512, 

32:  391 
Alternatives  for  forfeiture. 

687.  The  court  may  impose  a  fine  in  lieu 
of  the  forfeiture  of  the  charters  of  cor- 
porations foimd  guilty"  of  entering  into  a 
combination  in  restraint  of  trade,  if  the  un- 
lawful combination  has  been  abandoned,  al- 
though the  statute  provides  for  the  forfei- 
ture of  the  rights  of  corporations  found 
guilty  of  such  conduct.  State  ex  rel.  Crow 
V.  Armour  Packing  Co.  173  Mo.  356,  73  S.  W. 
645,  61 :  464 
Transfer  of  franchise. 

Of  Telephone  Company,  see  Telephones,  7. 

688.  A  conveyance  by  a  corporation  dur- 
ing its  corporate  life  of  all  its  prbperty  and 
franchises  cannot  impart  to  any  other  cor- 
poration or  to  a  natural  person  the  power 
to  continue  the  exercise  of  its  corporate 
franchise  after  that  franchise  has  expired 
by  limitation  of  law.  Virginia  Cai3on  Toll 
Road  Co.  V.  People  ex  rel.  Vivian,  22  Colo. 
429,  45  Pac.  398,  37:  711 
Sale;  redemption. 

689.  A  sale  of  property  in  a  suit  to  wind 
up  an  insolvent  corporation  is  not  made  sub- 
ject to  the  provisions  as  to  redemption,  in 
a  statute  governing  sales  in  foreclosure  pro- 
ceedings or  under  decrees  for  the  payment 
of  money,  by  the  fact  that  in  the  suit  are 
filed  cross  bills  seeking  preferences  in  the 
assets,  if  the  decree  refuses  to  recognize 
such  claims,  but  leaves  the  assets  unencum- 
bered thereby.  Blair  v.  Illinois  Steel  Co. 
159  111,  350,  42  N.  E.  895,  31 :  269 
Limit  of  existence. 

Validity  of  Extension  of  Corporate  Exist- 
ence, see  Constitutional  Law,  24. 

Special  Legislation  Extending  Existence, 
see  Statutes,  303,  304. 

Of  Street  Railway  Franchise,  see  Street 
Railways,  37-39,  42. 

See  also  infra,  721. 

For  Editorial  Notes,  see  infra,  VIII.  §§  48, 
49. 

690.  Although  the  general  corporation 
law  of  1845  was  repealed  in  1855,  including 
the  twenty  years'  limitation  upon  the  exist- 
ence of  corporations,  and  the  repealing  law 
took  effect  only  from  its  passage,  yet,  as  the 
limitation  is  re-enacted  in  the  same  lan- 
guage in  which  it  appeared  in  the  original 
law,  and  the  provision  as  re-enacted  applies 
to  corporations  created  previous  to  its  pas- 
sage, it  leaves  such  corporations  in  the  same 
condition  they  were  in  before,  subject  to 
the  same  limitation.  State  ex  rel.  Clover 
V.  Ladies  of  the  Sacred  Heart,  99  Mo.  533, 
12  S.  W.  293,    '  6:  84 

691.  The  existence  of  a  corporation  is  not 
limited  to  the  imexpired  term  of  its  prede- 
cessor, which  was  organized  under  a  law 
limiting  its  existence  to  thirty  years,  when 
the  new  charter  confers  all  the  rights  and 
privileges  that  would  have  been  had  if  the 
company  had  been  organized  under  such 
statute.  State  ex  rel.  Allison  v.  Hannibal 
&  R.  C.  Gravel  Road  Co.  138  Mo.  332,  39  S. 
W.  910,  36:  467 


692.  The  words  "perpetual  succession,"  in 
the  charter  of  a  corporation  formed  by  pur- 
chasers under  a  deed  of  trust  of  the  prop- 
erty of  a  prior  corporation  organized  under 
a  statute  that  limited  its  existence  to 
thirty  years,  and  to  which  the  charter 
refers  for  powers,  privileges,  franchises,  and 
limitations  of  the  new  corporation,  imply 
nothing  morel  than  a  continuous  succession 
during  the  existence  of  the  corporation  for 
the  period  limited.  Id. 

693.  A  statute  granting  "perpetual  suc- 
cession" to  a  corporation,  followed  by  a 
grant  of  the  exclusive  right  to  manufacture 
gas  and  coke  within  a  certain  city  "for 
the  term  of  thirty  years,"  while  a  general 
law  of  the  state  limits  the  life  of  a  corpora- 
tion to  twenty  years  when  no  other  time 
is  specified,  does  not  give  the  corporation 
an  unlimited  period  of  existence,  but  limits 
it  to  thirty  years.  State  ex  rel.  Walker  v. 
Payne,  129  Mo.  468,  31  S.  W.  797,    33:  576 

b.  Grounds  of  Forfeiture, 

As  to  What  Constitutes  a  Dissolution,  see 
supra,  678-685. 

Estoppel  to  Forfeit  Franchise,  see  Estoppel, 
32. 

Estoppel  to  Deny  Right  to  Exercise  Fran- 
chise, see  Estoppel,  31. 

Burden  of  Showing,  see  Evidence,  410. 

For  Prize  Fighting,  see  Receivers,  39. 

Of  Street  Railway  Franchise,  see  Street 
Railways,  40-48. 

See  also  infra,  719,  869. 

For  Editorial  Notes,  see  infra,  VEIL  §§  8, 
48. 

694.  If  the  unauthorized  acts  of  a  corpora- 
tion affect  merely  stockholders  and  creditors 
who  have  an  adequate  legal  remedy,  the 
state  will  not  interfere.  State  ex  rel.  Clapp 
v.  Minnesota  Thresher  Mfg.  Co.  40  Minn. 
213,  41  N".  W.  1020,  3:  510 

695.  There  may  be  actual  corporate  con- 
duct which  will  authorize  the  dissolution 
of,  a  corporation,  although  there  is  no 
formal  corporate  action  taken  for  the  pur- 
pose of  producing  such  conduct.  People  v. 
North  River  Sugar  Ref.  Co.  121  N.  Y.  582, 
24  N.  E.  834,  9:  33 
Evasion  of  law. 

Bv  Benefit  Society,  see  Benevolent  Societies, 

58. 
See  also  Insurance,  70. 

696.  A  deliberate  attempt  by  a  corporation 
to  evade  the  iYisurance  law  of  the  state  in 
one  of  its  most  important  provisions  is 
ground  for  forfeiting  the  charter.  Interna- 
tional Fraternal  Alliance  v.  State,  88  Md. 
550,  39  Atl.  512,  40:  187 
Neglect  to  have  property  listed  for  taxation. 
See  also  Taxes,  485. 

697.  Neglect  of  the  officers  of  a  corpora- 
tion to  have  its  property  listed  for  taxa- 
tion is  not  sufficient  cause  for  a  forfeiture 
of  its  franchises.  North  &  S.  Rolling  Stock 
Co.  V.  People  ex  rel.  Schaefer,  147  111.  234, 
35  N.  E.  608,  24:  462 
Failure  to  pay  in  capital  stock. 

698.  The  statutory  provision  that  a  "cor- 
poration  shall   be  dissolved"  on   failure  to 


796 


CORPORATIONS,  VI.  b. 


pay  in  the  capital  stock  within  two  years 
after  incorporation  makes  it  the  imperative 
duty  of  the  court  to  declare  the  forfeiture 
in  case  the  attorney  general  exercises  his 
discretion  to  bring  an  action  therefor,  and 
leave  to  do  so  is  given  by  the  court.  Peo- 
ple V.  Buffalo  Stone  &  C.  Co.  131  N.  Y.  140, 
29  N,  E.  947,  15:  240 

Failure  to  make  report. 
By  Benefit   Society,  see  Benevolent    Socie- 
ties, 59. 

699.  For  failure  to  make  the  annual  re- 
port required  by  the  New  York  Manufactur- 
ing act  of  1848,  §  12,  a  corporation  incurs 
the  liability  of  forfeiture  of  its  charter. 
People  V.  Buffalo  Stone  &  C.  Co.  131  N.  Y. 
140,  29  N.  E.  947,  ^  15:  210 

700.  The  express  provision  of  the  statute, 
that  trustees  of  a  corporation  shall  be  liable 
for  its  debts  in  case  they  fail  to  make  an 
annual  report,  does  not  by  implication  pro- 
hibit a  forfeiture  of  the  charter  for  such 
failure,  as  the  provision  expressed  relates  to 
the   trustees,   and  not   to   the   corporation. 

Id. 
Entering  into  monopolistic  agreement. 
See  also  supra,  687. 

701.  A  corporation  organized  for  the  pro- 
duction of  oil  ajid  gas  may  be  deprived  of 
its  franchises  in  case  it  enters  into  an 
agreement  with  a  rival  company,  fixing  the 
price  to  be  charged  for  gas  in  a  certain  city 
in  which  their  pipes  are  laid,  and  binding 
it  to  refuse  to  supply  gas  to  customers  sup- 
plied from  the  rival's  pipes.  State  ex  rel. 
Snyder  v.  Portland  Natural  Gas  &  0.  Co. 
153  Ind.  483,  53  N.  E.  1089,  53:  413 

702.  A  manufacturing  corporation  which, 
instead  of  manufacturing  its  product  and 
disposing  of  it  to  the  public  on  what  might 
be  fair  competitive  prices,  becomes  a  party 
to  a  combination  in  part  at  least  designed 
to  create  a  monopoly  and  exact  from  the 
public  prices  which  could  not  be  otherwise 
obtained,  is  liable  to  have  its  charter  va- 
cated and  annulled  for  such  subversion  of 
the  object  for  which  it  was  created.  E.e 
Sugar  Trust  Case,  54  Hun,  354,  7  N.  Y. 
Supp.  406,  •  5:  386 

Afl"g  54  Hun,  355  (note),  3  N.  Y.  Supp. 
401,  2:  33 

703.  A  manufacturing  corporation  cannot 
enter  into  any  partnership  arrangement, 
either  directly  or  indirectly,  through  the 
medium  of  a  trust,  or  into  any  substantial 
consolidation  which  will  avoid  and  disregard 
the  ptatutory  permissions  and  restraints: 
and  any  voluntary  attempt  by  it  to  do  so 
will  be  such  a  material  violation  of  its 
charter  as  to  justifv  its  dissolution.  People 
V.  North  River  Sugar  Ref.  Co.  121  N.  Y.  582. 
24  N.  E.  8.34,  9:  33 
Migration;  nonresidence. 

For  Editorial  Notes,  see  infra,  VTTI.  §  8. 

704.  It  is  sufficient  ground  for  the  dissolu- 
tion of  a  corporation  that  it  has  removed 
its  principal  place  of  business  and  all  of 
its  agencies  from  the  state  of  its  creation, 
in  contravention  of  the  policy  of  the  state 
as  evinced  by  its  general  system  of  legis- 
lation. Simmons  v.  Norfolk  &  B.  Steam- 
boat Co.  113  N.  C.  147,  18  S.  E.  117,  22:  677 


705.  A  charge  against  a  corporation  of 
falsely  and  fraudulently  posing  as  a  do- 
mestic corporation,  when  it  had  in  fact 
migrated  to  a  foreign  state,  is  not  shown 
by  the  facts  that  the  local  office  is  not  at 
all  times  open  and  the  books  are  not  al- 
ways there,  if  the  corporate  property  is 
within  the  state  and  the  officers  and  books 
are  frequently  at  the  office,  at  least  as  often 
as  the  business  requires.  North  &  S.  Roll- 
ing Stock  Co.  V.  People  ex  rel.  Schaefer, 
147    111.   234,  35   N.  E.   608,  24:  462 

706.  The  mere  fact  that  the  books  of  a 
corporation  have  been  kept  most  of  the 
time  in  a  foreign  state,  contrary  to  a  stat- 
utory requirement,  is  not  sufficient  cause 
to  forfeit  its  franchises,  if  the  two  places 
of  location  are  but  a  short  distance  apart 
across  the  boundary  line,  and  they  have 
been  produced  at  the  principal  office  when- 
ever any  one  entitled  to  do  so  desired  to 
see  them.  Id, 

707.  Nonresidence  of  the  officers,  directors, 
and  stockholders  of  a  domestic  corporation, 
is  not,  in  the  absence  of  statutory  require- 
ments, express  or  implied,  a  groimd  for  for- 
feiture of  its  franchises.  Id. 
Nonuser  of  franchise. 

Estoppel  to  Forfeit  because  of,  see  Estoppel, 
17. 

Street  Railway  Franchise,  see  Street  Rail- 
ways, 40-42,  44-48. 

See  also  supra,  681,  684;  infra,  753. 

For   Editorial   Notes,   see   infra,   VITI.   §   8. 

708.  An  act  of  a  corporation  tending  to 
produce  injury  to  the  public  by  affecting 
the  welfare  of  the  people  is  an  abuse  of  its 
corporate  franchise  for  which  the  charter  of 
the  company  may  be  forfeited  by  an  in- 
formation in  the  nature  of  quo  warranto. 
People  ex  rel.  Mcllhany  v.  Chicago  Live- 
stock Exch.  170  111.  556,  48  N.  E.  1062, 

39:  373 

709.  The  exercise  and  use  of  the  franchises 
of  a  corporation  for  the  benefit  of  the  public 
is  a  condition  on  which  it  is  allowed  to  be 
created  and  maintained;  and  when  it  volun- 
tarily declines  to  fill  this  condition,  or 
places  itself  in  a  situation  as  a  consequence 
of  its  voluntary  action  in  which  that  may 
be  prevented,  it  may  be  annulled  at  the 
suit  of  the  attorney  general.  Re  Sugar 
Trust  Case,  54  Hun,  354,  7-  N.  Y.  Supp.  406, 

5:  386 

Aff'g  54  Hun,  355   (note),  3  N.  Y.  Supp. 

401,  2:  33 

710.  Failure  of  a  corporation  to  exercise 
all  of  its  granted  power  is  no  ground  for 
forfeiture  of  its  franchises,  unless  that  re- 
quirement is  expressly  made  by  some  stat- 
ute or  ordinance  under  which  it  derives 
some  of  its  powers,  or  the  powers  are  in- 
separably connected  with  each  other.  Illi- 
nois Trust  &  Sav.  Bank  v.  Doud,  44  C.  C.  A. 
389,  105  Fed.  123,  52:  481 
Abuse  of  franchise;  unlawful  business. 

Of  Carrier  for  Making  Unlawful  Charges, 
see  Commerce,  60. 

For  Wrongfully  Conferring  Degrees,  see  Col- 
leges, 9. 

Foreign  Insurance  Company,  tee  Insuranca, 
48. 


CORPORATIONS    VI.  c 


797 


Allegations  as  to,  see  Pleading,  526a. 

Ousting  by  Quo  Warranto,  see  Quo  War- 
ranto, 4,  5,  33. 

Of  Water  Company,  see  Waters,  555,  556, 
558,  559. 

See  also  Insurance,  69. 

For  Editorial  Notes,  see  infra,  VII.  §  8. 

711.  Acts  ultra  vires,  or  in  excess  of  pow- 
ers, are  not  necessarily  a  misuser  of  the 
franchises,  such  as  will  warrant  their  for- 
feiture. To  justify  such  forfeiture,  the 
ultra  vires  acts  must  be  so  substantial  and 
continued  as  to  so  derange  or  destroy  the 
business  of  the  corporation  that  it  no  longer 
fulfil  the  end  for  which  it  was  created. 
Ultra  vires  acts  may  be  such  as  to  justify 
interference  by  the  state  by  injunction  to 
prevent  a  continuance  of  the  ^excess  of 
powers,  while  they  would  not  be  a  sufficient 
ground  for  a  forfeiture  of  the  corporate 
franchises  in  proceedings  by  quo  warranto. 
State  ex  rel.  Clapp  v.  Minnesota  Thresher 
Mfg.  Co.  40  Minn.  213,  41  N.  W.  1020,  3:  510 

712.  The  object  of  proceedings  by  quo 
warranto  against  a  corporation  being  to 
protect  public  interests,  to  warrant  a  for- 
feiture of  corporate  franchises  for  misuser, 
the  misuser  must  be  such  as  to  work  or 
threaten  a  substantial  injury  to  the  pub- 
lic. Id. 

713.  To  warrant  the  annulment  of  a  cor- 
porate franchise,  the  corporation  must  be 
shown  to  have  exceeded  or  abused  its  pow- 
ers in  such  a  manner  as  to  threaten  or 
harm  the  public  welfare.  People  v.  North 
River  Sugar  Ref.  Co.  121  N.  Y.  582,  24  N.  E. 
834,  9:  33 

714.  In  a  proceeding  to  annul  a  corporate 
franchise  for  abuse  of  powers,  the  substan- 
tial inquiry  is:  What  has  the  corporation 
in  fact  accomplished;  what  has  been  its  con- 
duct and  effective  work? — and  the  manner 
in  which  the  result  has  been  reached  is 
immaterial.  Id. 

715.  A  corporation,  organized  under  the 
laws  of  Nebraska,  which  is  engaged  in  a 
business  forbidden  by  statute,  or  unlaw- 
ful as  against  public  policy,  may  be  de- 
prived of  its  charter  and  dissolved  by  pro- 
ceedings in  quo  warranto.  State  ex  rel. 
Prout  V.  Nebraska  Home  Co.  66  Neb.  349, 
92  N.  W.  763,  60:  448 
Usurpation. 

Laches  as  Bar  to  Proceeding  for,  see  Quo 
Warranto,  3. 

716.  The  exercise  by  a  private  corpora- 
tion of  franchises  or  privileges  not  conferred 
by  law  may  be  a  serious  usurpation  and  en- 
croachment whiclr,  when  it  injures  or  puts 
in  hazard  the  private  rights  of  any'  per- 
son, will  justify  the  exercise  by  the  court 
of  the  powers  given  by  Mass.  Pub.  Stat, 
chap.  186,  §§  17-25,  on  an  information  in 
the  nature  of  a  quo  warranto.  Hartnett  v. 
Plumber's  Supply  Asso.  169  Mass.  229,  47 
N.  E.   1002,  38:  194 

c.  Effect  on  Property  Rights. 

Expiration  of  Bank's  Existence,  see  Banks, 

2. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

272. 


Survival  of  Street  Railway  Franchise,  see 
Street  Railways,  37. 

Effect  of  Expiration  of  Toll  Road  Com- 
pany's Charter,  see  Tolls  and  Toll 
Roads,  14,  15. 

On  Right  to  Take  under  Will,  see  Wills,  146. 

For  Editorial  Notes,  see  infra,  VIII.  §  50. 

717.  Stockholders  of  a  corporation  have 
the  same  right  to  purchase  its  property 
and  take  possession  thereof  that  stran- 
gers would  have,  during  the  pendency  of  a 
suit  to  forfeit  the  charter.  Havemeyer  v. 
San  Francisco  Super.  Ct.  84  Cal.  327,  24 
Pac.   121,  10:  627 

718.  The  right  of  trustees  in  a  corporate 
mortgage  to  take  possession  and  control  of 
the  property  and  carry  on  the  business  for 
which  it  is  used  is  a  property  right  or  in- 
terest which  survives  the  voluntary  disso- 
lution of  the  corporation.  Nelson  v.  Hub- 
bard, 96  Ala.  238,  11  So.  428,  17:  375 

719.  A  corporation  violating  the  organic 
law  forfeits  its  franchise,  but  does  not 
thereby  become  subject  to  the  escheat  or 
confiscation  of  its  property.  Com.  ex  rel. 
Attorney  General  y.  New  York,  L.  E.  &  W. 
R.  Co.  132  Pa.  691,  19  Atl.  291,  7:  634. 

720.  An  express  reservation  by  the  legis- 
lature of  power  to  repeal  a  charter  can 
give  no  authority  to  take  away  or  destroy 
property  lawfully  acquired  or  created  under 
authority  conferred  by  the  charter.  People 
V.  O'Brien,  111  N.  Y.  1,  18  N.  E.  692, 

2:  255 

721.  A  conveyance  in  fee  to  a  corporation 
which  has  a  limited  existence  is  not  limited 
to  the  life  of  the  corporation,  and  does  not 
give  the  grantor  a  resulting  trust  which  will 
take  effect  when  the  corporation  ceases  to 
exist.  Wilson  v.  Leary,  120  N.  C.  90,  26 
S.  E.  630,  38:  240 

722.  Putting  in  issue  the  corporate  exist- 
ence of  relator,  at  whose  instance  an  alter- 
native writ  of  prohibition  has  been  issued 
to  prevent  a  receivership  illegally  instituted 
over  another  corporation  from  being  ex- 
tended over  property  which  was  transferred 
by  the  latter  corporation  to  relator,  is  not 
sufficient  to  affect  the  force  of  the  writ, 
since  relator,  although  only  a  de  facto  cor- 
poration, is  entitled  to  possession  of  its 
property  until  deprived  of  it  by  a  proper 
proceeding.  State  ex  rel.  Amsterdarasch 
Trustees  Kantoor  v.  Spokane  County  Super. 
Ct.   15  Wash.  668,  47  Pac.  31,  37:  111 

723.  The  purpose  as  well  as  the  effect, 
of  the  amendatory  act  of  Congress  making 
the  comptroller  of  the  currency  a  commis- 
sioner of  the  Freedman's  Saving  &  Trust 
Company,  was  to  invest  him,  as  such  com- 
missioner, with  the  property,  management, 
and  disposition  of  the  affairs  of  said  com- 
pany for  the  purposes  of  liquidation;  and 
he  thereby  became  the  statutory  substitute 
and  successor  of  the  corporation  itself,  and 
not  a  mere  trustee  of  the  bare  legal  title  of 
its  property.  Spratt  v.  Livingston,  32  Fla. 
507,  14  So.  1«0,  22:  453 
On  guaranty  of  dividends. 

724.  A  defense  to  a  guaranty  of  corporate 
dividends,  that  the  corporation  has  been 
dissolved*  cannot  be  defeated  on  the  ground 


798 


CORPORATIONS,  VI.  d.  e. 


that  the  dissolution  was  caused  by  defend- 
ant's own  misconduct,  where  it  was  ad- 
judged on  the  application  of  the  plaintiff 
for  technical  breaches  of  corporate  duty,  for 
some  of  which  he  was  as  much  responsible 
as  the  defendant.  Lorillard  v.  Clyde,  142 
X.   y.   456,   37   N.    E.   489,  24:  113 

d.  Effect  on  Causes  of  Action. 

Against  Officers,  see  supra,  306,  307. 
Intervention  by  Officer,  see  Parties,  211. 

725.  Statutes  continuing  corporate  exist- 
ence a  certain  time  after  dissolution  for 
purposes  of  suits,  and  forbidding  the  de- 
fense of  want  of  legal  organization  of  the 
corporation,  do  not  apply  to  corporations 
of  other  states.  Marion  Phosphate  Co.  v. 
Perry,  41  U.  S.  App.  14,  74  Fed.  425, 
20  C.  C.  A.  490,  33:  252 

726.  The  continuation  of  the  existence  of 
corporations  "dissolved  by  forfeiture  or  any 
other  cause,"  provided  for  by  Ala.  Code,  § 
1690,  does  not  applj^  to  corporations  dis- 
solved by  the  voluntary  act  of  the  owners 
of  three  fourths  of  the  stock,  under  §§ 
1683-1689,  which  supply  a  complete  scheme 
or  system  of  procedure  for  winding  up  its 
affairs.  Xelson  v.  Hubbard,  96  Ala.  238,  11 
So,  428,  17:  375 
By  corporation. 

For  Editorial  Notes,  see  infra,  VIII.  §  50. 

727.  An  action  for  libel  cannot  be  prose- 
cuted by  a  receiver  in  insolvency  of  the  cor- 
poration libeled,  although  the  libel  has  re- 
sulted in  pecuniary  injury  to  such  corpora- 
tion, and  thus  diminished  the  estate  passing 
to  the  receiver.  Milwaukee  Mut.  F.  Ins. 
Co.  V.  Sentinel  Co.  81  Wis.  207,  51  N.  W. 
440,  15:  627 

728.  Ihti  furtlier  prosecution  of  a  suit  for 
libel  is  within  the  terms  of  an  injimctiori 
restraining  a  corporation  from  exercising 
any  of  its  corporate  rights,  privileges,  or 
franchises;  and  where  the  injunction  is 
granted  under  statutory  authority,  upon 
the  appointment  of  a  receiver  because  of 
the  insolvency  of  the  corporation,  the  de- 
fendant in  the  libel  suit  may  avail  himself 
of  it  to  procure  a  stay  of  further  proceed- 
ings in  such  suit.  Id. 

729.  The  right  to  continue  the  prosecution 
of  a  suit  is  not  saved  to  a  dissolved  cor- 
poration l)y  a  statute  which  continues  the 
existence  of  such  corporations  for  three 
years  for  the  prosecution  of  actions,  and 
gives  the  managers  power  to  settle  up  its 
affairs,  subject  to  the  power  of  the  court  to 
make  a  different  provision,  where  the  court 
appoints  a  receiver  and  enjoins  the  cor- 
poration from  exercising  any  of  its  rights, 
privileges,  or  franchises.  Id. 
Against  corporation. 

Revival  of  Libel  Suit  against  Trustees,  see 

Abatement  and  Revival,  46. 
As   Impairment   of   Obligation   of   Contract, 

see  Constitutional  Law,  1139,  1188. 
See   also  supra,  285,  678,  679. 

730.  After  the  dissolution  of  a  corpora- 
tion the  power  to  proceed  judicially  against 
it    is    wholly    devested    except    as    specially 


authorized  by  statute.     Combes  v.  Milwau- 
kee &  M.  R.  Co.  89  Wis.  297,  62  N.  W.  89, 

27:  369 

731.  The  dissolution  of  a  corporation 
works  an  abatement  of  suits  pending 
against  it,  and  presents,  an  insuperable  im° 
pediment  to  the  institution  of  new  suits 
against  it,  unless  some  clear  statutory  pro- 
vision prevents  the  termination  of  its  exist- 
ence for  the  purposes  of  its  organization 
from  having  this  effect.  Nelson  v.  Hub- 
bard, 96  Ala.  238,  11  So.  428,  17:  37.-) 

732.  The  civil  death  of  corporations  is  not 
included  within  the  rule,  Actio  personalis 
morifur  cum  persona.  Shayne  v.  Evening 
Post  Pub.  Co.   168  N.  Y.  70,  61  N.  E.   115. 

55:  777 

733.  If  the  adoption  of  the  common  law 
included  the  rule  that  the  expiration  of  a 
corporate  charter  terminated  actions  of  tort 
pending  against  the  corporation,  it  has  been 
rendered  wholly  inapplicable  to  business 
corporations  by  the  subsequent  legislation 
regarding  them.  Id. 

734.  The '  rule  of  the  common  law  that 
liability  for  the  publication  of  a  libel  dies 
with  the  publisher  cannot  1)e  extended  by 
analogy  to  embrace  cases  where  the  charter 
of  a  corporation  expires  after  it  has  in- 
curred liability  for  the  publication  of  a 
libel.  Id. 

735.  The  dissolution  of  a  corporation  de- 
fendant after  the  submission  and  taking 
under  advisement  by  the  court  of  an  action 
on  contract  will  not  abate  the  action,  but 
the  court  will  date  the  findings  and  enter 
the  judgment  as  of  the  time  when  the 
action  was  submitted.  Shakman  v.  United 
States  Credit  System  Co.  92  Wis,  366,  66 
N.    W,   528,  32:  383 

736.  A  suit  to  foreclose  a  mortgage  can- 
not be  brought  as  an  independent  suit 
against  a  corporation  after  a  decree  of  dis- 
solution under  Ala,  Code,  §§  1683-1689,  but 
a  claim  should  be  filed  in  the  dissolution 
proceedings.  Nelson  v.  Hubbard,  96  Ala. 
238,  11  So.  428,  17:  375 

737.  A  judgment  against  a  corporation 
after  its  dissolution  is  invalid.  ^Marion 
Phosphate  Co.  v.  Perry,  41  U.  S.  App.  14, 
74  Fed.  425,  20  C.  C.  A.  490,  33:  252 

738.  A  corporation  organized  by  purchas- 
ers of  a  railroad  on  foreclosure,  which  is 
afterwards  devested  of  all  its  property  and 
its  franchise  for  the  operation  of  the  rail- 
road by  the  subsequent  foreclosure  of  prior 
liens  thereon  created  by  the  original  owner, 
does  not  thereafter  continue  to  exist  bo 
that  it  can  be  sued  after  a  new  corporation 
under  legislative  authority  has  acquired 
the  property  under  the  latter  foreclosure 
and  operated  the  road  for  many  years. 
Combes  v.  Milwaukee  &  M,  R.  Co,  89  Wis. 
297,  62  N,  W.  89,  27:369 

e.   Procedure;    Power  of  Equity   as  to. 

Proceedings  by  Quo  Warranto  against  Cor- 
poration, see  Quo  Warranto,  11,  a. 

Leave  to  Bring  Quo  Warranto  Proceedings 
for  Dissolution,  see  Quo  Warranto,  28. 

For  Editorial  Notes,  see  infra,  VIIl,  §  8, 


CORPORATIONS,  VL  e. 


799 


739.  The  fact  that  a  statute  under  which 
an  action  is  instituted  to  wind  up  the  busi- 
ness of  an  insolvent  corporation,  and  for 
the  granting  of  incidental  relief,  does  not 
confer  jurisdiction  to  dissolve  the  corpora- 
tion as  prayed  for  in  the  petition,  does  not 
deprive  the  court  of  jurisdiction  to  grant 
the  relief  authorized  by  statute.  Re  Osh- 
kosh  Mut.  F.  Ins.  Co.  77  Wis.  366,  46  N.  W. 
441,  9:  273 

740.  In  a  statutory  proceeding  by  the 
state  auditor  to  wind  up  a  corporation,  to 
which  the  stockholders  are  not  made  par- 
ties, the  corporation  has  the  duty  to  pro- 
tect their  rights;  and  it  may  therefore 
object  to  the  making  of  an  order  directing 
the  receiver  to  bring  suits  for  unpaid  stock 
subscriptions.  Republic  L.  Ins.  tjo.  v.  Swig- 
ert,  135  111.   150,  25  N.  E.  680,  12:  328 

741.  Proceedings  to  forfeit  a  franchise  are 
not  excluded  by  Md.  Code,  art.  23,  §  263,  au- 
thorizing proceedings  to  restrain  an  as- 
sumption or  exercise  of  any  franchise,  lib- 
erty, or  privilege,  or  the  transaction  of  un- 
authorized business.  International  Frater- 
nal Alliance  v.  State,  86  Md.  550,  39  Atl. 
512,  40:  187 

742.  The  mere  fact  that  the  voluntary 
winding  up  of  a  corporation  is  subject  to 
the  supervision  of  the  court  does  not  take  it 
out  of  §  161  of  the  English  companies  act, 
which  regulates  the  proceedings  for  volun- 
tary winding  up,  and  make  it  subject  to 
the  provision  regulating  winding  up  by  the 
court,  especially  when  the  corporation  and 
its  liquidator  opposed  a  winding  up  by  the 
court  as  desired  by  creditors.  Bank  of 
China,  Japan  and  the  Straits  v.  Morse,  168 
N.  Y.  458,  61  N.  E.  774,  ,56:  139 
Notice  of  meeting  for  liquidation. 

743.  Statutory  provisions  as  to  the  notice 
to  be  given  of  a  meeting  to  consider  the 
question  of  liquidating  a  corporation  must 
prevail  under  provisions  in  the  by-laws. 
Republican  Mountain  Silver  Mines  v.  Brown, 
19  U.  S.  App.  203,  7  C.  C.  A.  412.  58  Fed. 
644,  24:  776 

744.  Provisions  in  the  by-laws,  as  to  no- 
tice of  a  meeting  to  consolidate  with  an- 
other corporation,  can  have  no  application 
to  a  proceeding  to  liquidate  the  corporation 
and  sell  the  assets.  Id. 
By    whom    petition    made    or    proceeding 

brought. 
See  also  infra,  756,  757;   Attorney  General, 
2. 

745.  No  relator  is  necessary  in  a  suit  by 
the  attorney  general  under, N.  Y.  Code  Civ. 
Proc.  §  1808,  to  remove  the  trustees  of  a  do- 
mestic corporation  and  compel  them  to 
account  for  its  property,  if  in  his  opinion 
the  public  interests  require  that  such  ac- 
tion should  be  brought.  People  v.  Ballard, 
134  y.  Y.  269,  32  N.  E.  54,  17:  737 

746.  The  attorney  general  will  not  be  per- 
mitted to  maintain  an  independent  action 
for  the  dissolution  of  an  insolvent  insur- 
ance corporation,  if  all  the  ends  which  could 
be  attained  by  such  action  may  be  ac- 
complished by  his  becoming  a  party  to  an 
action  already  pending  against  the  corpora- 
tion,   brought    by    creditors    and    stockhold- 


ers.    Re  Oshkosh  Mut,  F,  Ins.  Co.  77  Wis. 
366,   46  N.   W.    441,  9:  273 

747.  The  fact  that  suit  by  the  attorney 
general  to  annul  the  existence  of  a  '  cor- 
poration as  an  illegal  combination  to  keep 
down  the  price  of  a  commodity  was  insti- 
tuted upon  petition  of  another  associa- 
tion which  was  formed  to  enhance  such 
prices  cannot  affect  the  decision  of  the  case. 
People  V.  Milk  Exchange,  145  N.  Y.  267, 
39  N.  E.  1062,  27:  437 

748.  An  action  to  annul  a  corporation 
brought  in  the  interest  of  the  public  by 
the  attorney  general,  under  N.  Y.  Code  Civ. 
Proc.  chap.  15,  tit.  2,  art.  4,  is  not  defeated 
by  the  fact  that  some  of  the  persons  who 
petitioned  therefor  were  those  whose  acts 
or  omissions  were  the  ground  of  the  forfeit- 
ure. People  v.  Buffalo  Stone  &  C.  Co.  131 
N.  Y.  140,  29  N.  E.  947,  15:  240 

749.  Whether  the  attorney  general,  who 
has  brojaght  an  action  to  wind  up  the  af- 
fairs of  a  corporation  in  which  a  receiver 
has  been  appointed,  and  which  is  still  pend- 
ing undetermined,  can,  to  avoid  multiplic- 
ity of  suits  and  to  carry  out  the  provisions 
of  N.  Y.  Laws  1886,  chap,  310,  maintain  an- 
other action  in  aid  of  the  former,  to  obtain 
a  judgment  declaratory  of  the  rights  and 
liabilities  of  the  several  parties  as  affect- 
ed by  the  dissolution  of  the  corporation,  and 
to  determine  the  fact  as  to  what  were  the 
assets  of  the  company,  and  the  extent  of 
the  interest  of  the  several  parties  therein, 
and  to  restrain  mortgagees  and  contractors 
and  others  from  enforcing  their  rights  in 
and  liens  upon  the  property,  by  legal  pro- 
ceedings,— doubted,  but  not  decided.  People 
V.  O'Brien,   111  N.  Y.   1,   18  N.  E.  692, 

2:  255 

750.  The  fact  that  suits  to  restrain  the 
usurpation  of  corporate  powers  must  be 
brought  by  the  state  does  not  prevent  an 
individual  from  attacking  the  right  of  a 
corporation  to  enjoy  a  certain  franchise  in 
an  action  to  recover  damages  for  injuries 
to  his  business  by  acts  of  the  corporation 
which  are  alleged  to  be  ultra  vires.  Hud- 
son River  Teleph.  Co.  v.  Watervliet  Tump. 
&   R.   Co.    135   N.   Y.   393,   32  N.   E.   148, 

17:  674 

751.  The  rule  that  the  franchise  of  a 
corporation  cannot  be  annulled  at  the  suit 
of  private  persons  applies  to  defeat  a  suit 
by  members  of  a  voluntary  association  who 
claim  that  the  corporators  named  in  the 
charter  were  merely  their  agents,  and  seek 
to  compel  them  to  deliver  the  charter  to 
them  and  to  restrain  the  corporators  named 
in  the  charter  from  acting  under  it,  since 
the  complainants  would  have  no  authority 
to  organize  or  act  under  such  charter.  Paul- 
ino V.  Portuguese  Beneficial  Asso.  18  R,  I. 
165,  26  Atl,  36,  20:  272 

752.  A  creditor  of  a  corporation  may, 
without  obtaining  judgment  against  it, 
maintain  a  bill  under  the  Tennessee  stat- 
utes to  wind  up  its  affairs,  if,  after  sus- 
taining large  losses,  it  has  suspended  busi- 
ness with  no  preparation  for  resumption, 
and  has  executed  trust  deeds  in  favor  of 
certain  creditors  covering  practically  ail  its 


MO 


CORrORATIONS,  TL  f,  L 


assets,  while  its  claim  to  solvency  is  based 
upon  extravagant  valuations  of  its  assets. 
Tradesman  Pub.  Co.  v.  Knoxville  Car-Wheel 
Co.  95  Tenn.  634,  32  S.  W.  1097,  31:593 

753.  A  forfeiture  of  the  franchise  of  a 
canal  company  by  accepting  a  new  charter 
conferring  power  to  use  the  water  for  manu-, 
facturing  purposes,  and  by  nonuser  there- 
of for  navigation,  cannot  be  enforced  by  an 
owner  of  the  adjoining  property  with  a  con- 
tingent right  of  reversion  in  the  land  of 
the  corporation,  but  only  by  the  sovereign 
state.  Bass  v.  Roanoke  Nav.  &  W.  P. 
Co.  Ill  N.  C.  439,  16  S.  E.  402,  19:  247 
Power  of  equity. 

754.  Courts  of  chancery  have  no  jurisdic- 
tion to  decree  the  dissolution  of  a  corpora- 
tion, in  the  absence  of  statutory  authority. 
Wheeler  v.  Pullman  Iron  &  «.  Co.  143  111. 
197,  32  N.  E.  420,  17:  818 

755.  A  court  of  equity  cannot  dissolve  or 
wind  up  the  affairs  and  sequestrate  the 
property  of  a  corporation  without'  express 
statutory  authority.  Wallace  v.  Pierce- 
Wallace  Pub.  Co.  101  Iowa,  313,  70  N.  W. 
216,  38:  122 

756.  Equity  had  at  common  law  no  power 
to  decree  a  surrender  or  forfeiture  of  cor- 
porate franchises  at  the  suit  of  an  individu- 
al. Republican  Mountain  Silver  Mines  v. 
Brown,  19  U,  S.  App.  203,  7  C.  C.  A.  412,  58 
Fed.  644,  24:  776 

757.  A  court  of  equity  can  wind  up  a  cor- 
poration at  the  suit  of  a  minority  stock- 
holder, and  appoint  a  receiver  for  that  pur- 
pose, with  an  order  for  an  accounting,  where 
the  corporation  has  utterly  failed  of  its 
purpose  because  of  fraudulent  mismanage- 
ment and  misappropriation  of  its  funds  in 
the  interest  of  one  who  owns  a  majority 
of  its  stock,  some  of  which  is  nominally 
held  by  directors  who  are  merely  dummies 
under  his  control.  Miner  v.  Belle  Isle  Ice 
Co.  93  Mich.  97,  53  N.  W.  218,  17:  412 

758.  The  power  of  a  court  of  equity,  on 
good  cause  shown,  to  dissolve  or  close  up  the 
business  of  any  corporation,  which  is  con- 
ferred by  §  25  of  the  Illinois  statute  for  the 
incorporation  of  companies  for  pecuniary 
profit,  exists  only  as  a  portion  of  the  re- 
lief provided  for  by  that  section,  and  does 
not  authorize  the  exercise  of  such  power 
except  for  causes  for  which  the  state  might 
procure  a  judgment  of  forfeiture  at  law. 
Wheeler  v,  Pullman  Iron  &  S.  Co.  143  111. 
197,  32  N.  E.  420,  17:  818 

f.    Insolvency;    Rights    and    Preferences    of 
Creditors. 

1.  In  General. 

Liability  of  Stockholders  in  Reorganized 
Company,  see  supra,  594-599. 

Officer's  Liability  for  Assent  to  Acts  Caus- 
ing Insolvency,  see  supra,  289-292. 

Insolvency  of  Foreign  Corporations,  see 
infra,  VII.  d. 

Insolvency  of  Bank,  see  Banks,  TV.  b,  2;  V. 

Insolvency  of  Loan  Association,  see  Build- 
ing and  Loan  Associations,  VIL 


Of  Insurance  Company,  eee  Insurance,  25, 
659,  664,  670,  671,  1289,  1290,  1301, 
1302,  1320,  1365,  1366,  1370,  1371. 

Error  in  Reversing  in  Toto  Judgment  for 
Assessment  on  Stockholder,  see  Appeal 
and  Error,  1154. 

Liability  of  Ship  Building  Corporation  to 
Bankruptcy  Proceedings,  see  Bank- 
ruptcy, 12. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.  f. 

Receivers  for,  see  Receivers. 

Set-OflF  of  Dividend  against  Liability  as 
Stockholder,  see  Set-Off  and  Coimter- 
claim,  39. 

See  also  supra,  24,  264,  380,  502,  556,  752. 

For  Editorial  Notes,  see  infra,  VIIL  §§  48, 
50,  51. 

759.  Where  a  man  brought  an  action 
against  a  corporation  for  injuries  resulting 
from  negligence,  pending  which  the  corpora- 
tion, then  insolvent,  mortgaged  its  property 
to  its  directors  for  money  advanced,  after 
recovering  judgment  and  levying  on  the 
corporate  property,  he  was  entitled  by  bill 
in  equity  to  have  the  mortgage  declared 
void  as  against  him.  Olney  v.  Conanicut 
Land  Co.  16  R.  I.  597,  18  Atl.  181,        5:  361 

760.  Under  Wis.  Rev.  Stat.  §§  3216  et 
seq.,  a  judgment  creditor  of  an  insolvent 
corporation,  whose  execution  has  been  re- 
turned unsatisfied,  may  maintain  a  suit 
against  the  company  and  the  other  neces- 
sary parties  defendant  to  facilitate  the 
collection  of  the  claim,  in  which  its  effects 
may  be  sequestrated  and  placed  in  the  hands 
of  a  receiver,  and  all  suits  by  other  creditors 
enjoined,  and  such  creditors  compelled  to 
come  into  the  action  for  an  equal  distribu- 
tion of  assets.  Stockholders  may  be  made 
parties  and  compelled  to  pay  the  amounts 
due  on  their  stock  subscriptions,  and  officers 
of  the  law  may  be  compelled  to  deliver 
to  the  receiver  property  in  their  hands 
under  attachments  or  executions  against 
the  corporation.  Ballin  v.  J.  &  E.  B.  Friend 
Lace  Importing  Co.  78  Wis.  404,  47  N.  W. 
516,  10:  742 

761.  A  contractor  who,  under  an  execu- 
tory contract  with  a  corporation,  terminat- 
ed by  its  insolvency  and  dissolution,  has 
made  large  expenditures  in  the  construc- 
tion and  repair  of  river  dams,  bridges,  and 
roads  belonging  to  the  corporation,  for  the 
driving  and  hauling  of  timber,  and  upon 
timber  partially  prepared  for  delivery  un- 
der the  contract,  is  entitled,  upon  a  sale  of 
the  corporate  property  free  and  discharged 
from  the  contract,  under  a  decree  of  the 
court  directing  it  to  be  offered  for  sale 
both  subject  to  and  free  from  the  contract, 
to  compensation  and  reimbursement  for  his 
services  and  expenditures  out  of  the  as- 
sets of  the  company,  although  he  afterwards 
purchases  the  corporate  property  and  ob- 
tains the  benefit  of  such  improvements. 
Griffith  V.  Black  water  Boom  &  L.  Co.  55  W. 
Va.  604,  48  S.  E.  442,  69:  124 
Disposition  of  property  generally. 
Distribution  of  Assets  of  Insurance  Com- 
pany, see  Insurance,  73-85. 

See  also  infra,  773. 


CORPORATIONS,  VI.  f.  2. 


801 


For  Editorial  Notes,  see  infra,  VIII.  §  51. 

762.  The  mere  insolvency  of  a  corpora- 
tion does  not  eo  instanti  deprive  its  direct- 
ors and  officers  of  power  to  dispose  of  the 
corporate  property  in  good  faith  as  pay- 
ment or  security  of  corporate  debts,  al- 
though the  effect  may  be  to  give  some 
creditors  a  preference  over  others.  Warren 
V.  First  Nat.  Bank,  149  111.  9,  38  N.  E.  122, 

25:  746 

763.  Directors  and  officers  of  an  insol- 
vent corporation  can  dispose  of  its  property 
in  good  faith  to  pay  or  secure  corporate 
debts,  even  though  the  result  is  to  give 
some  creditors  a  preference  over  others. 
Illinois  Steel  Co.  v.  O'Donnell,  156  III.  624, 
41  N.  E.  185,  31 :  2b5 
Assignments   for   creditors. 

What  Constitutes  an  Assignment,  see  As- 
signments for  Creditors,  7. 

Assignee's  Power  to  Enforce  Stockholder's 
Liability,  see  Banks,  24,  25. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.  f. 

By  Insurance  Company,  see  Insurance,  79. 

See  also  infra,  871-874. 

764.  At  common  law  an  insolvent  corpora- 
tion can  make  a  general  assignment  in  trust 
to  an  assignee  for  the  benefit  of  creditors. 
Vanderpoel  v.  Gorman,  140  N.  Y.  563,  35 
N.    E.    9.32,  24:548 

765.  An  assignment  by  a  corporation  for 
the  benefit  of  creditors  is  a  corporate  act 
which  may  be  performed  by  the  president 
and  secretary  under  the  authority  of  the 
board  of  directors,  in  the  absence  of  any 
statute  or  by-law  providing  that  it  shall  be 
otherwise  done.  Id. 
Attachments. 

766.  An  attachment  and  sale  of  the  cor- 
porate property  in  a  suit  against  the  Comp- 
troller of  the  Currency  as  commissioner  and 
statutory  successor  of  the  Freedman's  Sav- 
ings &  Trust  Company  is  lawful,  where  the 
corporation  would  have  been  subject  to  at- 
tachment. Spratt  V.  Livingston,  32  Fla. 
507,  14  So,  160,  22:  453 

767.  The  mere  insolvency  of  a  corpora- 
tion, known  to  a  creditor,  will  not  prevent 
him  from  obtaining  a  valid  lien  by  attach- 
ment of  its  property.  Ballin  v.  Merchants* 
Exch.  Bank,  89  Wis.  278,  61  N.  W.  1118, 

27:  357 

768.  The  invalidity  of  an  attachment  of 
property  of  an  insolvent  corporation  will 
not  preclude  a  purchaser  of  the  property 
from  defending  against  one  claiming  it  un- 
der a  mortgage  which  constitutes  an  invalid 
preference.  Fowler  v.  Bell,  90  Tex.  150,  37 
S.  W.  1058,  39:  254 
Discharge. 

Discharge  in  Bankruptcy,  see  Bankruptcy, 
IV. 

769.  Corporations  as  well  as  natural  per- 
sons are  included  within  the  provisions  of 
the  Wisconsin  statute,  for  a  discharge  of 
insolvent  debtors.  Barth  v.  Backus,  140 
N.  Y.  230,  35  N.  E.  425,  23:  47 

770.  Corporations  are  included  within  the 
words  "any  person,"  in  Sand.  &  B.  (Wis.) 
Ann.    Stat.    chap.    80a,    §    1702d,    providing 

KE.A.  Dig.— 51. 


that  any  person  who  shall  make  a  volun- 
tary assignment  for  the  benefit  of  creditors 
may  be  discharged  from  his  debts  upon 
compliance  with  the  provisions  of  the  act. 
Segnitz  v.  Garden  City  Banking  &  T.  Co. 
107  Wis.  171,  83  N.  W.  327,  50:  327 

2.  Preferences. 

Attachment  as,  see  supra,  766-768. 

As  to  Funds  in  Insolvent  Bank,  see  Banks, 

V. 
Of  Claims  against  Receiver,  see  Receivers, 

IIL 
See  also  supra,  689,  762,  763. 
For  Editorial  Notes,  see  infra,  VIII.  §  51. 

771.  An  insolvent  corporation  may,  in  the 
exercise  of  its  jus  disponQndi,  prefer  one 
creditor  to  another.  American  Exch.  Nat. 
Bank  v.  Ward,  49  C.  C.  A.  611,  111  Fed.  782, 

55:  356 

772.  An  insolvent  corporation  has  no  au- 
thority to  prefer  creditors.  Adams  &  W. 
Co.  V.  Deyette,  8  S.  D.  119,  65  N.  W.  471, 

31:  497 

773.  Statutory  authority  of  a  corpora- 
tion to  hold,  purchase,  and  sell  property  as 
the  "purposes"  of  the  corporation  shall  re- 
quire, applies  only  to  powers  to  be  used 
while  the  corporation  is  carrying  on  busi- 
ness, and  does  not  give  power  to  execute 
a  preferential  deed  of  assignment  after  in- 
solvency and  permanent  cessation  of  busi- 
ness. Lyons  Thomas  Hardware  Co.  v.  Perry 
Stove  Mfg.  Co.  86  Tex.   143,  24  S.  W.   16, 

22:  802 

774.  A  preferential  deed  of  trust  executed 
by  a  private  trading  corporation  after  its 
insolvency  and  ceasing  to  carry  on  business, 
without  any  intention  of  resuming,  is  void 
as  against  unsecured  creditors  of  the  cor- 
poration. Id. 

775.  Trust  deeds  in  favor  of  certain  cred- 
itors, executed  by  a  corporation  after  sus- 
taining heavy  losses  and  suspending  busi- 
ness and  when  it  cannot  meet  its  accruing 
liabilities,  will  be  set  aside.  Tradesman 
Pub.  Co.  V.  Knoxville  Car  Wheel  Co.  95 
Tenn.  634,  32  S.  W.  1097,  31 :  593 

776.  A  corporation  is  insolvent  within  the 
rule  as  to  preferring  creditors,  where  its  as- 
sets are  insufficient  to  pay  its  debts  and  it 
has  ceased  to  do  business,  or  is  in  the  act 
of  taking  a  step  which  will  practically  inca- 
pacitate it  for  conducting  the  corporate  en- 
terprise with  reasonable  prospect  of  success, 
or  its  embarrassments  are  such  that  early 
suspension  and  failure  must  ensue.  Corey 
v.  Wadsworth,  99  Ala.  68,  11  So.  350, 

23:  618 

777.  The  "business"  of  a  corporation, 
within  a  statutory  authority  to  contract  in 
"its  authorized  business,"  cannot  be  con- 
strued to  include  the  making  of  a  preferen- 
tial deed  of  trust  after  the  corporation  has 
become  insolvent  and  ceased  to  carry  on  its 
operations  without  any  intention  of  resum- 
ing. Lvons  Thomas  Hardware  Co.  v.  Perry 
Stove  Mfg.  Co.  86  Tex.  143,  24  S.  W.  16, 

22:  802 

778.  Corporate     bonds     representine     no 


802 


CORPORATIONS,  VI.  f,  2. 


actual  indebtedness  cannot  be  pledged  as 
collateral  security  to  a  debt  of  the  corpora- 
tion, so  as  to  entitle  the  holder  to  a  divi- 
dend thereon  from  the  receiver  of  the  corpo- 
ration as  well  as  upon  the  debt.  Interna- 
tional Trust  Co.  V.  Union  Cattle  Co.  3  Wyo. 
803,  31  Pac.  408,  *  19:  640 

779.  A  corporation  for  profit,  organized 
under  the  laws  of  Ohio,  after  it  has  become 
insolvent  and  ceased  to  prosecute  the  ob- 
jects for  which  it  was  created,  cannot,  by 
giving  some  of  its  creditors  mortgages  on 
the  corporate  property  to  secure  antecedent 
debts  without  other  consideration,  create 
valid  preferences  in  their  behalf  over  the 
other  creditors,  or  over  a  general  assignment 
thereafter  made  for  the  benefit  of  creditors. 
Rouse  V.  Merchants'  Nat.  Bank,  46  Ohio  St. 
493,  22  N.  E.  293,  5:  378 

780.  A  trustee  of  an  insolvent  banking 
firm  cannot  share  in  the  assets  of  an  insol- 
vent corporation,  which  was  entirely  owned 
by  one  member  of  the  firm,  on  account  of 
overdrafts  of  the  corporation,  until  after 
the  creditors  of  the  corporation  have  been 
paid.  Potts  v.  Schmucker,  84  Md.  535,  36 
Atl.  592,  35:  392 

781.  A  bank  loaning  money  to  a  construc- 
tion company  which  owns  all  the  stock  of 
a  railroad  company  cannot,  even  in  equity, 
enforce  its  claim  against  the  assets  of  the 
railroad  property  in  the  hands  of  a  receiver, 
in  preference  to  the  lien  of  a  valid  mortgage 
executed  by  the  railroad  company  to  secure 
an  issue  of  bonds,  although  under  some  cir- 
cumstances it  might  subject  the  railroad 
property  to  its  debt  as  equitable  assets  of 
the  borrower.  McTighe  v.  Macon  Const.  Co. 
97  Ga.  1,  25  S.  E.  326,  33:  800 

782.  A  party  loaning  money  to  an  em- 
barrassed corporation  subsequently  adjudged 
insolvent,  and  taking  security  therefor,  can- 
not in  equity  claim  a  lien  on  its  mortgaged 
property  or  the  proceeds  thereof,  in  prefer- 
ence to  a  pre-existing  mortgage,  no  matter 
for  what  purpose  the  loan  was  made  or 
how  the  money  loaned  was  applied,  pro- 
viding the  mortgage  bondholders  were  not 
parties  to  the  transaction.  Farmers'  Loan 
&  T.  Co.  V.  Bankers'  &  M.  Teleg.  Co.  148 
N.  Y.  315,  42  N.  E.  707,  31:403 

783.  The  filing  in  a  suit  to  dissolve  a  cor- 
poration and  close  up  its  business,  of  cross- 
bills in  the  nature  of  creditors'  bills,  and  of 
prayers  to  set  aside  a  deed  of  trust  on  the 
property,  will  not  operate  to  give  the  cred- 
itors praying  such  relief  preference  over  the 
other  creditors  of  the  corporation.  Blair  v. 
Illinois  Steel  Co.  159  111.  350,  42  N.  E.  895, 

31 :  269 
Trust  fund  doctrine. 
As  to  Funds  in  Insolvent  Bank,  see  Banks, 

319-325. 
Following    Trust    Property    Generally,    see 

Trusts,  V. 
For  Editorial  Notes,  see  infra,  VTTI.  §  51. 

784.  The  insolvency  of  a  corporation  does 
not  ipso  facto  transform  its  assets  into  a 
trust  fund  for  the  e/jual  benefit  of  its  credit- 
ors. Americjin  Exch.  Nat.  Bank  v.  Ward,  49 
C.  C.  A.  611,  111  Fed.  782,  55:  356 


785.  The  property  of  an  insolvent  cor- 
poration is  not  a  trust  fund  for  the  benefit 
of  creditors  in  any  sense  other  than  that 
when  a  chancery  court  takes  possession  of 
it  upon  some  general  principle  of  equity 
jurisdiction,  wholly  independent  of  any  idea 
that  the  property  constitutes  a  trust  fund, 
it  will  be  administered  for  the  equal  benefit 
of  creditors.  O'Bear  Jewelry  Co.  v.  Volfer, 
106  Ala.  205,  17  So.  525,  28:  707 
Of  ofi&cers  or  directors. 

Presumption   of   Knowledge   of   Insolvency, 

see  Evidence,  312. 
See  also  supra,  276. 

786.  Directors  of  an  insolvent  corporation 
are  not  precluded  from  executing  a  chattel 
mortgage  upon  the  corporate  assets  to  se- 
cure their  own  just  demands,  if  they  act  in 
absolute  good  faith.  American  Exch.  Nat. 
Bank  v.  Ward,  49  C.  C.  A.  611,  111  Fed. 
782,  55:  356 

787.  A  deed  of  trust  by  an  insolvent  cor- 
poration is  not  void  as  matter  of  law  from 
the  fact  that  the  directors  vote  themselves 
preferences  in  payment  of  debts.  Schufeldt 
V.  Smith,  131  Mo.  280,  31  S.  W.  1039, 

29:  830 

788.  A  director  who  is  a  bona  fide  creditor 
of  a  corporation  may  be  made  a  preferred 
creditor,  where  preferences  to  any  creditors 
are  lawful.  Brown  v.  Grand  Rapids  Parlor 
Furniture  Co.  16  U.  S.  App.  221,  7  C.  C.  A. 
225,  58  Fed.  286,  22:  817 

789.  The  preference  of  a  creditor  of  an  in- 
solvent corporation  is  not  invalid  because  he 
was  a  stockholder,  director,  and  president 
of  the  company,  and  as  such  participated  in 
the  transaction  by  which  he  was  given  a 
preference  over  other  creditors.  Corey  v. 
Wadsworth,  118  Ala.  488,  25  So.  503, 

44:  766 

790.  The  fact  that  directors  and  stock- 
holders of  a  corporation  vote  to  give  a  mort- 
gage preferring  themselves  as  creditors  does 
not  render  it  invalid.  Brown  v.  Grand  Rap- 
ids Parlor  Furniture  Co.  16  U.  S.  App.  221, 
7  C.  C.  A.  225,  58  Fed.  286,  22:  817 

791.  The  directors  of  an  insolvent  cor- 
poration are,  by  virtue  of  their  position,  de- 
barred from  preferring  debts  of  the  corpora- 
tion due  to  themselves.  Olney  v.  Conanicut 
Land  Co.  16  R.  I.  597,  18  Atl.  181,         5:  361 

792.  Directors  of  an  insolvent  manufac- 
turing corporation  may  apply  its  assets  to 
their  own  unsecured  claims  against  it,  and 
to  its  obligations  upon  which  they  are  indi- 
vidually liable,  although  the  result  is  to 
deprive  persons  who  have  contracted  with 
it  of  any  remedy  for  breach  of  its  contracts. 
Nappance  Canning  Co.  v.  Reid,  Murdock  & 
Co.   159  Ind.   614,  64   N.   E.  870,         59:  199 

793.  One  of  the  governing  body  of  an  in- 
solvent corporation  cannot  be  ma^e  a  pre- 
ferred creditor  for  an  unsecured  debt.  Corey 
V.  Wadsworth,  99  Ala.   68,   11   So.   350, 

23:  618 

794.  A  director  cannot  take  advantage  of 
his  superior  means  of  information  to  secure 
his  debt  against  the  corporation,  either  by 
confession  of  judgment  or  otherwise.  Hill 
V.  Pioneer  Lumber  Co.  113  N.  C.  173,  18 
S.  E.    107,  21:560 


CORPORATIONS,  VI.  f,  3. 


808 


795.  Directors  of  an  insolvent  corporation, 
who  vote  themselves  preferences  over  other 
creditors,  must  show  that  all  their  secured 
claims  are  honest  and  justly  due  them. 
Schufeldt  V.  Smith,  131  Mo.  280,  31  S.  W. 
1039,  29:  830 

7!)'l.  Valid  securities  may  be  given  to  its 
directors  by  a  corporation,  although  it  is  in 
fact  insolvent,  where  it  is  a  going  concern 
doing  a  large  business,  and  the  securities  are 
given  for  money  loaned  at  the  same  time  in 
good  faith  to  enable  the  company  to  carry 
on  the  purposes  of  its  incorporation.  Illi- 
nois Steel  Co.  V.  O'Donnell,  156  III.  624,  41 
N.   E.    185,  31:  265 

797.  Subsequent  insolvency  of  a  corpora- 
tion which  has  borrowed  money  when  sol- 
vent from  officers  or  directors  wiH^not  affect 
their  rights  of  action  to  recover  such  loans 
and  enforce  their  securities.  Id. 

798.  Judgment  notes  of  a  corporation,  re- 
newed after  its  insolvency,  are  in  the  same 
position  with  respect  to  the  right  of  the 
corporation  to  make  preferences  as  prior 
judgment  notes  for  which  the  renewals  were 
given.  Id, 

799.  An  insolvent  corporation  cannot 
make  a  preference  of  a  debt  due  from  it  on 
which  the  officers  and  directors  are  bound 
as  sureties.  National  Wall  Paper  Co.  v. 
Columbia  Nat.  Bank,  63  Neb.  234,  88  N.  W. 
481,  56:  121 

800.  A  preference  by  an  insolvent  corpora- 
tion, of  creditors  whose  debts  have  been 
guaranteed  by  directors  of  the  corporation, 
is  not  invalid  although  made  without  the 
requirement  or  knowledge  of  the  creditors, 
unless  it  otherwise  appears  that  it  was  made 
for  the  benefit  of  the  directors  or  guaran- 
tors, and  not  for  that  of  the  creditors 
themselves.  Blair  v.  Illinois  Steel  Co.  159 
111.  350,  42  N.  E.  895,  31:269 
Of  relative  of  directors  or  officers. 

For  Editorial  Notes,  see  infra,  VIII.  §  51. 

801.  Relationship  of  a  creditor  of  an  in- 
solvent corporation  to  one  or  more  of  its 
directors  or  officers  will  not  prevent  the 
giving  of  a  valid  security  as  a  preference  to 
such  creditor.  Illinois  Steel  Co.  v.  O'Don- 
nell, 156  111.  624,  41  N.  E.  185,  31:  265 

802.  A  preference  given  by  an  insolvent 
corporation  to  a  creditor,  having  no  indorse- 
ment or  guaranty  from  its  directors,  is  not 
unlawful  though  she  is  an  aunt  of  three  of 
the  directors.  Blair  v.  Illinois  Steel  Co.  159 
111.  350,  42  N.  E.  895,  31 :  269 
Of  stockholders. 

See  also  supra,  789,  790. 

803.  A  stockholder  of  an  insolvent  corpo- 
ration who  has,  in  accordance  with  his  stat- 
utory liability,  satisfied  a  portion  of  the 
claim  of  a  corporate  creditor,  cannot,  upon 
the  basis  of  the  amount  paid,  share  in  fu- 
ture dividends  to  creditors  from  the  cor- 
porate assets.  Sacramento  Bank  v.  Pacific 
Bank,  124  Cal.  147,  56  Pac.  787,  45:  863 

804.  The  capital  of  a  corporation  is  not 
held  in  trust  for  creditors,  except  in  the 
sense  that  it  cannot  be  distributed  among 
stockholders  without  first  providing  for  the 
payment  of  corporate  debts;  and  in  this  re- 


spect there  is  no  distinction  between  unpaid 
capital  and  paid  capital,  between  stock 
subscriptions  and  any  other  assets  of  a  cor- 
poration. Hospes  V.  Northwestern  Mfg.  & 
C.  Co.  48  Minn.  174,  50  N.  W.  1117,  15:  470 
Of  promoter. 

805.  A  promoter  of  a  corporation  who  has 
not  paid  his  stock  subscription  will  not  be 
permitted  to  take  an  assignment  of  a  claim 
for  improvements  made  on  the  corporate 
property,  so  as  to  enforce  the  same  in  pri- 
ority to  valid  mortgages  on  such  property. 
Hooper  v.  Central  Trust  Co.  81  Md.  559,  32 
Atl.  505,  29:  262 
For  wages. 

Priorities  in  Funds  in  Receiver's  Hands,  see 

Receivers,  88-93. 
See  also  supra,  559. 

806.  A  lawyer  employed  by  a  railroad 
company  on  a  yearly  salary  payable  month- 
ly is  not  a  laborer  or  employee  within  the 
meaning  of  those  terms  in  a  statute  giving 
a  preference  to  the  payment  of  wages  or 
salaries  of  8ucl\  persons  out  of  the  assets  of 
insolvent  corporations.  Latta  v.  Lonsdale, 
47   C.  C.  A.   1,   107  Fed.  585,  52:  479 

807.  Compensation  for  the  services  of  an 
attorney  at  law  is  not  included  in  the 
"wages  or  salaries  to  clerks,  servants,  or 
employees,"  which  are  entitled  to  preference 
in  payment  from  the  assets  of  an  insolvent 
corporation,  under  Md.  Code,  art.  47,  §  15. 
Lewis  V.  Fisher,  80  Md.  139,  30  Atl.  608, 

26:  278 

808.  A  "superintendent"  of  a  natural-gas 
company,  who  is  not  a  general  manager,  or 
a  general  agent,  or  an  officer  of  the  com- 
pany, but  whose  principal  duties  are  to  su- 
perintend the  construction  of  trenches  and 
the  laying  of  gas  pipes,  is  a  laborer  within 
the  meaning  of  that  term  as  used  in  El- 
liott's (Ind.)  Supp.  §  605,  giving  a  prefer- 
ence to  laborers'  claims  for  wages  against 
corporations.  Pendergast  v,  Yandes,  124 
Ind.    159,   24  N.   E.   724,  8:  849 

809.  An  insurance  adjuster,  or  a  person 
rendering  services  of  a  higher  degree  than 
a  clerk,  is  not  included  among  the  "clerks, 
servants,  and  employees"  of  an  insurance 
company,  to  whom  the  statutes  give  a  pref- 
erence in  distribution  of  the  company's  as- 
sets when  it  is  insolvent.  Boston  &  A.  R. 
Co.  V.  Mercantile  Trust  &  D.  Co.  82  Md. 
535,  34  Atl.  778,    .  38:  97 

810.  A  preference  of  claims  of  clerks,  serv- 
ants, and  employees  of  an  insolvent  corpo- 
ration, does  not  extend  to  a  trust  fund  de- 
voted to  a  special  purpose,  as  in  case  of  a 
deposit  for  the  benefit  of  policy  holders  of 
an    insurance   company.  Id. 

811.  A  person  employed  at  a  salary  of 
$100  per  month  by  a  mowing  machine  com- 
pany to  go  from  place  to  place  and  fix  and 
set  up  machines  and  unpack  and  repack 
them  when  necessary,  as  well  as  to  sell  or 
solicit  sales,  is  an  employee  within  the 
meaning  of  N.  Y.  Laws  1885,  chap.  376, 
giving  a  preference  to  claims  of  wages  of 
"employees,  operatives,  and  laborers"  of 
corpoi-ations.  Palmer  v.  Van  Santvoord,  153 
N.  Y.  612,  47  N.  E.  915,  38:  402 


804 


CORPORATIONS,   VII.  a. 


Of  corporate  creditors   over  those   of  pre- 
ceding partnership. 

812.  Debts  of  the  partnership  must  be 
postponed  to  those  contracted  by  the  cor- 
poration after  its  organization,  where  a 
corporation  is  organized  to  continue  the 
business  of  a  partnership  whose  assets  are 
transferred  to  it  upon  its  undertaking  to 
pay  the  partnership  debts,  and  the  corpora- 
tion becomes  insolvent.  Lamkin  v.  Bald- 
win &  L.  Mfg.  Co,  72  Conn.  57,  43  Atl.  593, 
1042,  44:  786 

813.  Taxes  due  by  a  partnership  whose 
business  a  corporation  is  organized  to  con- 
tinue, which  receives  the  partnership  assets 
upon  undertaking  to  pay  its  liabilities, 
are  not,  in  case  the  corporation  becomes 
insolvent,  entitled  to  preference  out  of  as- 
sets in  the  hands  of  its  receiver,  where  the 
statute  gives  such  preference  to  taxes  as- 
sessed against  the  insolvent  debtor.  Id. 


VII.  foreign  Corporations. 

a.  In  General. 

Right  of,  as  to  Name,  see  supra,  45-49. 
Property  Rights  of  Alien  Corporation,  see 

Aliens,  21,  22. 
Attachment  against,  see  Attachment,  18,  19. 
Attachment    of    Nonresident's     Shares     of 

Stock,   see  Attachment,   15;   Levy  and 

Seizure,  17. 
Attachment  of  Wages  Due  from,  see  Levy 

and  Seizure,  I. 
Foreign  Loan  Association,  see  Building  and 

Loan  Associations,  VIII. 
State  Regulation  of,  see  Carriers,  1016. 
Regulations  Interfering  with  Commerce,  see 

Commerce,  29. 
As  to  Rights  of  Generally,  see  Conflict  of 

Laws,  I.  d. 
Conflict  of  Laws  as  to  Insolvency  of,  see 

Conflict  of  Laws,  I.  f. 
Conflict  of  Laws  as  to  Usury  by  Foreign 

Loan  Association,  see  Conflict  of  Laws, 

56-60. 
Conflict  of  Laws  as  to  Contracts  with  For- 
eign  Insurance    Company,   see   Conflict 

of  Laws,  I.  b,  3. 
Law  Governing  Real  Estate  Mortgage   by, 

see  Conflict  of  Laws,  50. 
Stipulation    that    Contract    Is    a    Foreign 

One,  see  Conflict  of  Laws,  26. 
Unlawful  Combination  by,   see  Conspiracy, 

200. 
Due  Process  as  to,  see  Constitutional  Law, 

639. 
Impairing  Obligation  of  Contract  with,  see 

Constitutional  Law,   1162. 
Defense   for  Breach  of  Agreement  to   Em- 
ploy Agent  in  State,  see  Contracts,  733. 
.Lien    Acquired   on    Debts   Due,   by    Foreign 

Creditors'    Bill    against,    see    Creditors' 

Bill,  25. 
Embezzlement  by  Agent  of,  see  Embezzle- 
ment, 4. 
Power    of    Eminent    Domain,    see    Eminent 

Domain,  12-15. 


Estoppel  of,  to  Dispute  Validity  of  Trust, 
see  Estoppel,  237. 

Conclusiveness  against,  of  Debtor's  Dis- 
charge in  Insolvency,  see  Insolvency,  30. 

Foreign  Insurance  Company,  see  Insurance, 
I.  b. 

Right  of  Foreign  Insurance  Company  to 
Subrogation,  see  Insurance,  1252. 

Interest  on  Unpaid  License  Fees,  see  In- 
terest, 6. 

License  Tax  on  Sales  by  Agents. of,  see  Com- 
merce, 148-151,  164. 

Taxation  of,  see  Taxes,  33-35,  57,  68,  69, 
144,  160,  161,  170,  175,  177,  194,  195, 
213,  215,  217,  396,  436,  440,  441. 

Tax  on  Gift  to,  see  Taxes,  627,  628. 

Question  for  Jury  as  to  Validity  of  Defense 
of  Incorporation  in  Other  State,  see 
Trial,  502. 

See  also  supra,  62,  90,  105,  227,  472.  678. 

For  Editorial  Notes,  see  infra,  VIII.  §§ 
52-58. 

814.  A  foreign  corporation  acting  in  ex- 
cess of  its  conferred  authority  may  be  ques- 
tioned as  to  its  authority  only  by  the  state. 
Myatt  V.  Ponca  aty  Land  &  L  Co.  14 
Okla.    189,   78   Pac.   185,  68:  810 

815.  A  state  statute  granting  powers  and 
privileges  to  corporations  must,  in  the  ab- 
sence of  plain  indications  to  the  contrary, 
be  held  to  apply  only  to  corporations  cre- 
ated by  the  state  and  over  which  it  has  the 
power  of  visitation  and  control.  Re  Prime's 
Estate,  136  N.  Y.  347,  32  N.  E.  1091, 

18:  713 

816.  Restrictions  on  the  contracts  or  busi- 
ness of  foreign  corporations  cannot  be  up- 
held to  the  extent  of  altering  or  amending 
or  repealing  their  charters  under  the  laws 
of  other  states.  Johnson  v.  Goodyear  Min. 
Co.  127  Cal.  4,  59  Pac.  304,  47:  338 

817.  A  foreign  corporation  will  not  be 
held  void  as  an  evasion  of  the  laws  of  the 
state  in  which  all  the  corporators  reside  and 
in  which  is  the  principal  place  of  business  of 
the  company,  where  there  was  no  fraud  or 
evasion  of  the  law  of  the  state  of  incorpora- 
tion, and  the  certificate  of  incorporation 
was  granted  by  the  secretary  of  state  with 
knowledge  of  the  facts.  Demarest  v.  Grant, 
128  N.  Y.  205,  28  N.  E.  645,  13:  854 

818.  The  provision  for  service  of  process 
on  foreign  insurance  companies,  made  by 
Va.  act  of  assembly  May  18,  1887.  by  re- 
quiring the  appointment  of  an  attorney  or 
agent  to  acknowledge  service  or  on  whom 
it  may  be  made,  does  not  deprive  the  cor- 
poration of  the  right  to  plead  a  want  of 
jurisdiction  on  the  ground  that  the  sub- 
ject-matter of  the  suit  or  the  remedy 
sought  is  beyond  the  reach  of  the  court,  or 
not  within  the  sovereign  power  of  the 
state  from  which  the  court  derives  its  au- 
thority. Taylor  v.  Mutual  Reserve  Fund 
L.  Asso.  97  Va.  60,  33  S.  E.  385,  45:  021 
Limited  partnerships. 

819.  Partnership  associations  organized 
under  Pa.  act  June  2,  1874,  which  have  the 
powers  in  substance  of  corporations,  are 
regarded  in  New  Jersey,  when  doing  busi- 
ness there,  as  corporations  subject  to  cor- 


CORPORATIONS,   VII.  a. 


805 


poration  taxes.  State,  Tidewater  Pipe  Co. 
Prosecutor,  v.  State  Bd.  of  Assessors  (N.  J. 
Sup.)  57  X.  J.  I..  ;11G,  31  Atl.  220,  27:  684 
Interstate  companies. 

820.  A  foreign  insurance  company  is  not 
made  a  corporation  of  the  District  of  Co- 
lumbia by  having  an  agency  and  doing  busi- 
ness in  the  District,  in  compliance  with  the 
act  of  Congress  of  1887,  chap.  46,  §  4,  which 
subjects  it  to  process  when  served  on  the 
agent.  Clark;  v.  Mutual  Reserve  Fund  L. 
Asso.    14   App.   D.  C.    154,  43:  390 

821.  Neb.  Const,  art.  11,  §  8,  denying  the 
right  of  eminent  domain  to  a  railroad  cor- 
poration orgknized  under  the  laws  of  an- 
other state  or  of  the  United  States,  until 
it  has  become  a  body  corporate  under  the 
laws  of  Nebraska,  does  not  prohibit  exist- 
ing railroad  companies,  one  of  Avhich  is  a 
domestic  corporation,  from  forming  a  new 
corporation  by  consolidation,  pursuant  to 
the  laws  of  the  state,  and  thereby  becoming 
a  domestic  corporation.  State  ex  rel.  Leese 
V.  Chicago,  B.  &  Q.  R.  Co.  25  Neb.  156,  41 
N.  W.  125,  2:  564 

822.  A  corporation  consolidated  \mder  the 
provisions  of  Neb.  Comp.  Stat.  1887,  chap. 
16,  §  114,  by  the  union  of  a  corporation  op- 
erating a  railroad  from  a  point  within  the 
state  on  the  Missouri  river,  and  another 
corporation  organized  under  the  laws  of 
Illinois  and  of  Iowa,  operating  a  railroad 
from  a  point  on  the  Missouri  river  directly 
opposite  the  terminus  of  the  other  road,  to 
Chicago,  is  not  a  foreign  corporation.         Id. 

823.  One  state  cannot,  by  a  mere  legis- 
lative declaration,  make  all  corporations 
created  by  charter  or  the  laws  of  other 
states  domestic  corporations  of  such  state; 
at  least,  it  cannot,  by  such  declaration,  de- 
prive the  foreign  corporation  of  its  right  to 
resort  to  the  Federal  courts  in  cases  where 
such  right  is  conferred  by  the  Constitution 
and  laws  of  the  United  States.  Reee  v. 
Newport  News  &  M.  V.  Co.  32  W.  Va.  164, 
6  S.  E.  212,  3:  572 

824.  While  a  corporation  may  be  char- 
tered by  the  same  name  by  two  states, 
clothed  with  the  same  capacities  and 
powers,  and  intended  to  accomplish  the 
same  objects,  and  be  exercising  the  same 
powers  and  duties  in  both  states,  yet  it  will, 
in  law,  be  two  distinct  corporations, — one 
in  each  state,  with  only  such  corporate 
powers  in  each  state  as  are  conferred  by  its 
creation   in   that   state.  Id. 

825.  Two  states  cannot  by  joint  action 
create  a  corporation  which  will  be  regarded 
as  a  single  corporate  entity,  and  for,  juris- 
dictional purposes  a  citizen  of  each  state 
which  joined  in  creating  it.  Missouri  P.  R. 
Co.  v.  Meeh,  69  Fed.  753,  32  U.  S.  App.  691, 
16  C.  C.  A.  510,  30:  250 

826.  An  interstate  corporation  having  but 
one  board  of  directors  formed  by  process  of 
consolidation  or  otherwise  acts  in  each  of 
such  states  as  a  domestic,  and  not  as  a  for- 
eign, corporation.  Id. 

827.  The  result  of  creation  by  one  state 
of  a  corporation  of  a  given  name,  and  the 
declaration  of  the  legislature  of  an  adjoin- 
ing state  that  the  same  legal  entity  shall 


be  or  become  a  corporation  of  that  state, 
and  be  entitled  to  exercise  within  its  bor- 
ders all  of  its  corporate  functions  by  the 
same  board  of  directors,  is  not  to  create  a 
single  corporation,  but  two  corporations  of 
the  same  name  having  a  different  paternity. 

Id. 
Property  rights. 

For  Editorial  Notes,  see  infra,  VIII.  §§  52, 
55. 

828.  The  state  only  can  question  the  right 
of  foreign  corporations  to  hold  lands  in  ex- 
cess of  the  amount  limited  by  statute. 
American  Mortg.  Co.  v.  Tennille,  87  Ga.  28, 
13  S.  E.  161,  12:  529 

829.  A  foreign  corporation  owning  all  the 
stock  of  a  domestic  corporation,  where  the 
statutes  allow  its  stock  to  be  held  by  other 
corporations,  does  not  thereby  "acquire  or 
hold"  the  real  estate  of  the  domestic  cor- 
poration so  as  to  violate  the  Pennsylvania 
act  of  April  26,  1855,  against  acquiring  or 
holding  real  estate  "directly  in  the  corpo- 
rate name,  or  by  or  through  any  trustee  or 
other  device  whatsoever,  unless  specially  au- 
thorized," under  penalty  of  escheat.  Com. 
ex  rel.  Attorney  General  v.  New  York,  L.  E. 
&  W.  R.  Co.  132  Pa.  591,  19  Atl.  291, 

7:  634 

830.  A  simple  bequest  of  money  to  be 
paid  to  a  foreign  corporation  is  valid,  even 
if  the  law  of  the  state  forbids  the  execu- 
tion of  such  a  trust  as  that  for  which  the 
corporation  is  created  in  the  state  where 
the  will  is  made.  Presbyterian  General  As- 
sembly V.  Guthrie,  86  Va.  125,  10  S.  E.  318, 

8:  321 

Liability  of  members. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.  d,  2,  6. 

Conclusiveness  of  Judgment  as  to,  see  Judg- 
ment, 285. 

See  also  supra,  592. 

For  Editorial  Notes,  see  infra,  VIII.  §  43. 

831.  Members  of  a  company  incorporated 
in  another  state,  who  organize  and  choose 
directors  in  Florida  and  undertake  to  carry 
on  the  corporate  business  in  that  state  with- 
out becoming  incorporated  therein  are  liable 
as  partners  in  the  business.  Taylor  v.  Bran- 
ham,  35  Fla.  297,  17  So.  552,  39:  362 

832.  A  corporation  created  under  the  laws 
of  another  jurisdiction  cannot  exercise  cor- 
porate functions  in  Florida  without  be- 
coming incorporated  under  its  laws,  and  its 
liabilities  contracted  there  while  unincor- 
porated therein  rest  upon  its  members  or 
stockholders  in  the  jurisdiction  as  partners. 

Id. 
Restrictions  by  law  of  domiciL 
See  also  infra,  874. 
For  Editorial  Notes,  see  infra,  VIIL  §  52. 

833.  A  corporation  is  subject  to  the  laws 
of  the  state  or  sovereignty  under  and  by 
virtue  of  which  it  has  been  created;  and 
these  laws  have  a  paramount  influence  over 
its  corporate  powers  where  it  undertakes  to 
exercise  them.  American  Waterworks  Co. 
V.  Farmers'  Loan  &  T.  Co.  20  Colo.  203.  37 
Pac.  269,  25:  338 

834.  The  charter  alone  of  a  foreign  cor- 
poration, and  not  the  general  legislation  of 


806 


CORPORATIONS,  VII.  b. 


the  state  in  which  it  was  cteated,  will  have 
effect  to  limit  its  powers  outside  of  that 
state.  Warren  v.  First  Na^.  Bank,  149  111. 
9,  38  N.  E.   122,  25:  746 

S35.  An  officer  of  a  foreign  corporation 
cannot  use  its  name  to  prosecute  a  writ  of 
error  against  the  objection  of  a  receiver  who 
has  been  appointed  in  the  state  where  it 
was  created,  with  an  injunction  upon  the 
officers  from  continuing  the  business  or 
using  the  name  of  the  corporation  for  any 
purpose.  American  Waterworks  Co.  v. 
Farmers'  Loan  &  T.  Co.  20  Colo.  203,  37  Pac. 
269,  25:  338 

836.  The  power  of  a  corporation  created 
by  another  state  to  deal  in  the  purchase 
and  sale  of  real  estate  cannot  be  questioned 
by  a  party  dealing  with  it,  on  the  ground 
that  such  dealing  is  in  excess  of  the  powers 
granted  to  it  by  the  laws  under  which  it  is 
incorporated.  Lancaster  v.  Amsterdam  Im- 
prov.  Co.  140  N.  Y.  576,  35  N.  E.  964, 

24:  322 

837.  The  right  of  a  de  facto  corporation 
to  transact  business  under  a  franchise  which 
another  state  has  attempted  to  confer  can- 
not be  questioned  by  individuals.  Id. 

838.  It  is  indispensable  that  a  corpora- 
tion seeking  to  invoke  the  doctrine  of  com- 
ity must  first  be  possessed  of  some  right, 
power,  or  privilege  in  the  country  of  its 
domicil;  and  imless  it  has  both  existence 
and  some  right  or  power  there,  it  cannot  be 
awarded  anv  in  a  foreign  state.  Mvatt  v. 
Ponca  City 'Land  &  L  Co.  14  Okla.  189,  78 
Pac.  185,  68:  810 

839.  A  foreign  corporation  organized  in 
Kansas  for  the  sole  purpose  of  buying  and 
selling  real  estate  in  the  territory  of  Okla- 
homa, and  having  no  power  to  carry  on 
any  business  in  the  state  of  its  creation, 
cannot  enforce  its  right  to  carry  on  business 
in  the  territory,  under  the  doctrine  of 
comity.  Id. 

b.  Doing  Busin«6S  Within  State. 

Recovery  Back  of  License  Fee  Paid  for 
Privilege,   see  Assumpsit,  64. 

Liability  for  False  Statements  in  Certifi- 
cates, see  Fraud  and  Deceit,  62. 

See  also  supra,  821. 

840.  A  foreign  corporation  is  subject  to 
the  laws  of  a  state  in  which  it  does  busi- 
ness, which  prohibit  garnishment  or  other 
proceedings  to  defeat  the  exemption  of 
wages  of  a  debtor  on  a  contract  to  be  per- 
formed in  that  state.  Singer  Mfg.  Co.  v. 
Fleming,  39  Neb.  679,  58  N.  W.  226, 

23:  210 

841.  A  company  organized  to  build  and 
operate  an  extension  of  a  railroad  system 
into  another  state  will  be  regarded  as  but 
the  instrument  of  such  system  to  carry  on 
its  business  tliere,  where  the  stock  is  all 
placed  in  the  names  of  employees  of  the  old 
corpornticin,  the  principal  odiccs  of  the  new 
corporation  are  filled  by  ofUcers  of  tlie  old 
one,  the  old  corporation  purcliases  bonds  of 
the  new  one  to  construct  its  road,  and  fiir- 
nishea  the  rolling  stock,  a  traffic  agreement 


is  made  by  which  the  new  corporation  is  to 
work  for  the  old  one  for  a  long  period  of 
time,  the  benefit  of  which  is  to  pass  with 
sale  or  mortgage  of  the  property  of  the  old 
one,  and  the  operating  divisions  of  the  road 
show  a  single  system  and  management. 
Buie  V.  Chicago,  R.  I.  &  P.  R.  Co.  95  Tex.  51, 
65S.  W.  27,  55:861 

What  is. 

By  Foreign  Insurance  Company,  see  Insur- 
ance, 54—56. 
See  also  Venue,  14,  16. 
For  Editorial  Notes,  see  infra,  VIII.  §  52. 

842.  A  single  transaction  involving  a  pur- 
chase of  coal  on  credit,  with  i.  guaranty  by 
a  third  person,  is  held  not  to  constitute 
"transacting  any  business,"  within  the 
meaning  of  the  New  Jersey  statute  requir- 
ing certain  acts  of  foreign  corporations  "be- 
fore transacting  any  business  in  the  state." 
Delaware  &  H.  Canal  Co.  v.  Mahlenbrock 
(N.  J.  Err.  &  App.)  63  N.  J.  L.  281,  43 
Atl.   978,  45:  538 

843.  A  sale  of  coal  made  on  an  order  and 
guaranty  sent  by  mail  from  one  state  to 
another  is  not  within  the  New  Jersey  cor- 
poration act  of  1896,  §  97,  restricting  the 
business  of  foreign  corporations  in  that 
state.  Id. 

844.  A  foreign  corporation  which  simply 
contracts  to  furnish  milling  machinery  and 
place  it  in  a  mill,  without  having  any  office 
or  agency  in  the  state,  is  not  carrying  on 
business  in  the  state  within  the  meaning  of 
a  statutory  prohibition  of  carrying  on  busi- 
ness. Milan  Mill.  &  Mfg.  Co.  v.  Gorton,  93 
Tenn.  590,  27  S.  W.  971,  26:  135 

845.  The  taking  of  a  single  mortgage  by  a 
foreign  corporation  for  past-due  indebted- 
ness for  goods  sold  at  its  domicil  is  not 
doing  business  in  the  state  within  the  mean- 
ing of  restrictions  on  business  of  foreign 
corporations.  Florsheim  Bros.  Dry-Goods 
Co.  V.  Lester,  60  Ark.  120,  29  S.  W.  34, 

27:  505 

846.  The  institution  or  prosecution  of  a 
suit  is  not  a  "doing  business"  within  the 
meaning  of  laws  prescribing  conditions  of 
business  by  foreign  corporations.  St.  Louis, 
A.  &  T.  R.  Co.  V.  Philadelphia  Fire  Asso.  60 
Ark.  325,  30  S.  W.  350,  9Si-  83 

847.  A  railroad  company  which  organ- 
izes a  company  to  construct  an  extension  of 
its  system  into  another  state,  and  through 
it  operates  such  extensicn,  will  be  regarded 
as  doing  business  in  the  latter  state,  so  as 
to  be  liable  to  suit  there,  on  causes  of  ac- 
tion arising  out  of  the  state,  by  service  of 
process  upon  the  officers  of  the  new  com- 
panv.  Buie  v.  Chicago,  R.  I.  &  P.  R.  Co.  95 
Tex.  51,  65  S.  W.  27,  55:  861 
Right  to  do  business;  conditions  as  to. 
First  Raising  Question  as  to,  on  Appeal,  see 

Appeal  and  Error,  620. 

Bond  Insuring  Corporations  against  Man- 
ager's Dishonesty,  see  Bonds,  33. 

By  Foreign  Loan  Association,  see  Building 
and  Loan  Associations,  86. 

Conllict  of  Laws  as  to,  see  Conflict  of  Laws, 
157-1.59. 

Self-Executing  Provision  as  to,  Bee  Consti- 
tutional Law,  89. 


CORPORATIONS,  VII.  b. 


807 


Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  368,  374-376. 

Estoppel  to  Insdst  on  Conditions,  see  Estop- 
pel, 29. 

Presumption  as  to,  see  Evidence,  412, 

Foreign  Insurance  Company,  see  Insurance, 
34-53. 

Effect  of  Failure  to  File  Charter  on  Run- 
ning of  Limitations,  see  Limitation  of 
Actions,   172. 

Compellng  Grant  of  License,  see  Mandamus, 
43,  44. 

Allegations  as  to,  see  Pleading,  429,  595, 
596. 

Tax  on  Right  to  do  Business,  see  Taxes,  177. 

See  also  supra,  134,  837,  839,  846,  847;  infra, 
861-863. 

For  Editorial  Notes,  see  infra,  VIII.  §§  52, 
54,  58.  " 

848.  A  foreign  corporation  can  transact 
any  lawful  business  in  New  York  state 
which  a  nonresident  natural  person  can  do. 
Lancaster  v.  Amsterdam  Improv.  Co.  140 
N.  Y.  576,  35  N.  E.  964,  24:  3si2 

849.  A  foreign  corporation  incorporated 
for  the  purpose  of  dealing  in  the  purchase 
and  sale  of  real  property  is  not  prevented 
by  the  statutes  or  public  policy  of  the  state 
of  New  York  from  transacting  such  business 
in  that  state.  Id. 

850.  The  exemption  of  a  previously  char- 
tered railroad  company  from  a  statutory 
provision  respectmg  the  sale  and  effect  of 
tickets  does  not  extend  to  a  foreign  cor- 
poration subsequently  created  which  leases 
the  road  of  the  former.  Robinson  v.  South- 
ern P.  Co.  105  Cal.  526,  38  Pac.  94,  722, 

28:  773 

851.  The  law  of  comity  does  not  require 
that  a  mercantile  corporation  organized  un- 
der the  laws  of  another  state  shall  be  al- 
lowed to  do  business  in  Texas,  as  the  re- 
peal in  1885  of  a  statute  granting  the  privi- 
lege of  organized  mercantile  corporations 
is  a  direct  prohibition  against  the  operation 
of  such  corporations  in  the  state.  Empire 
Mills  V.  Alston  Grocery  Co.  (Tex.  App.)  15 
S.  W.  505,  12:  366 

852.  That  a  foreign  corporation  doing 
business  in  the  state  has  power,  under  its 
charter,  to  relinquish  the  transaction  of  a 
branch  of  its  business,  does  not  authorize 
it  to  enter  into  a  trust  combination,  or  sell 
property  required  for  the  transaction  of  its 
business  in  violation  of  the  local  laws,  or 
deprive  the  local  courts  of  the  power  to  see 
that  the  business  transacted  in  the  state 
shall  not  be  disposed  of  in  such  a  way  as 
to  violate  the  local  statutes.  Harding  v. 
American  Glucose  Co.  182  111.  551,  55  N.  E. 
577,  64:  738 

853.  Foreign  corporations,  upon  comply- 
ing with  the  conditions  required  by  W.  Va. 
Code,  chap.  54,  §  30,  have  tne  same  rights, 
powers,  and  privileges  respecting  their  con- 
tracts and  remedies,  if  not  otherwise  re- 
pugnant to  tne  policy  of  the  state,  as  do- 
mestic corporations  of  like  character, 
whether,  under  the  general  law  of  comity, 
they  would  have  had  such  rights,  powers, 
and  privileges  or  not;  but  they  can  exercise 
no  greater  powers  in  this  state  than  its  do- 


mestic corporations.  Floyd  v.  National 
I^an  &  Invest.  Co.  49  W,  Va.  327,  38  S.  E. 
653,  54:  536 

854.  A  certificate  of  the  proper  officer  that 
a  foreign  corporation  has  complied  with  the 
requirements  of  the  statute  necessary  to 
entitle  it  to  do  business  in  the  state  is  suf- 
ficient to  establish  prima  facie  the  authority 
of  the  corporation  to  transact  such  business. 
Washington  National  Bidg.  L.  &  I.  Asso. 
v.  Stanley,  38  Or.  319,  63  Pac.  489,       58:  816 

855.  Railroad  corporations  are  not  within 
the  contemplation  of  Id.  Rev.  Stat.  §  2653, 
requiring  foredgn  corporations  doing  busi- 
ness in  the  state  to  designate  an  agent  upon 
whom  process  may  be  served.  Boyer  v. 
Northern  P.  R.  Co.  8  Idaho,  74,  66  Pac. 
826,  70:  691 
Validity  of  contracts  of  unauthorized  com- 
pany. 

By  Foreign  Insurance  Company,  see  Insur- 
ance, 57-61. 

856.  Imposing  a  penalty  on  the  officers, 
agents,  and  stockholders  of  a  foreign  cor- 
poration for  doing  business  in  the  state 
without  filing  a  certificate,  does  not  render 
void  a  contract  by  the  corporation  to  manu- 
facture articles  at  its  domieil  and  deliver 
them  to  the  purchaser  in  the  state  imposing 
the  penalty.  Kindel  v.  Beck  &  P.  Litho- 
graphing Co.  19  Colo.  310,  35  Pac.  538, 

^     ^      ^  24:311 

857.  A  provision  of  a  statute  imposing  a 
penalty  "for  every  day  that  business  is  done 
by  a  foreign  corporation,  without  register- 
ing," as  required  by  law,  does  not  of  itself 
make  void  contracts  made  by  such  corpora- 
tion while  unregistered.  Edison  General 
Electric  Co.  v.  Canadian  P.  Nav.  Co.  8 
Wash.  370,  36  Pac.  260,  24:  315 

858.  A  contract  for  the  loan  of  money  by 
a  foreign  corporation  which  has  not  paid  the 
license  tax  required  by  Id.  Rev.  Stat.  § 
1644,  of  all  persons  engaged  in  that  busi- 
ness, is  not  void,  although  the  statute 
makes  the  loan  a  misdemeanor  and  provides 
for  suit  to  recover  the  tax,  with  damages, 
since  it  is  essentially  a  revenue  law,  and  tne 
business  itself  is  not  prohibited  alto- 
gether. Vermont  Loan  &  T.  Co.  v.  Hoffman, 
5  Idaho,  376,  49  Pac.  314,  37:  509 

859.  A  contract  of  a  foreign  corporation, 
if  not  contrary  to  public  policy,  is  not  in- 
valid because  the  corporation  has  not  com- 
plied with  R.  I,  Gen.  Laws,  chap.  253,  §§ 
36-41,  requiring  it  to  appoint  a  resident  of 
the  state  as  its  attorney  but  not  declaring 
that  such  contract  shall  be  void,  while  an- 
other statute  expressly  provides  that  in  case 
of  a  foreign  insurance  company  the  contract 
shall  be  valid.  Garratt  Ford  Co.  v.  Vermont 
Mfg.  Co.  20  R.  I.  187,  37  Atl.  948,         38:  545 

860.  A  foreign  corporation  coming  into 
West  Virginia  to  transact  business  must 
conform  to  the  law  of  the  state,  if  there 
be  any,  regulating  similar  corporations  or- 
ganized under  the  laws  of  that  state;  and 
its  contract,  although  in  terms  solvable  in 
the  foreign  state  in  which  such  corporation 
has  its  domieil,  must  be  such  a  contract  as 
a  similar  domestic  corporation  is  authorized 
to  make,  or  the  coortB  of  thia  state  cannot 


808 


CORPORATIONS,  VII.  c,  d. 


enforce,  or  permit  the  enforcement  of,  its 
performance.  Floyd  v.  National  Loan  & 
Invest.  Co.  49  W.  Va.  327,  38  S.  E.  653, 

54:  536 

c.  Actions  by  or  against. 

See  also  supra,  725. 
By. 

Comity  in  Permitting  Suit,  see  Conflict  of 
Laws,  156-162. 

Jurisdiction  of  Action  by,  see  Courts,  69. 

By  Foreign  Insurance  Company,  see  Insur- 
ance, 58-60. 

Removal  of,  see  Removal  of  Causes,  11-17. 

For  Editorial  Notes,  see  infra,  VIII.  §§ 
52,  58. 

861.  The  failure  of  a  foreign  corporation 
to  comply  with  the  conditions  of  the  right 
to  do  business  in  a  state  will  not  preclude 
an  action  by  it,  or  by  an  insurance  com- 
pany subrogated  to  its  rights,  for  negli- 
gent injuries  to  its  property  within  the 
state.  St.  Louis,  A.  &  T.  R.  Co.  v.  Philaael- 
phia  Fire  Asso.  60  Ark.  325,  30  S.  W.  350, 

28:  83 

862.  An  action  by  a  foreign  corporation 
which  had  not,  at  the  time  of  commencing 
it,  complied  with  the  statutory  require- 
ments to  enable  it  to  do  business  in  the 
state,  will  not  be  dismissed  on  motion,  if 
at  the  time  of  the  motion  it  has  so  com- 
plied, under  a  statute  providing  that  foreign 
corporations  which  have  not  complied  with 
the  requirements  cannot  "maintain"  any 
suit  or  action  in  the  state.  Carson-Rand  Co. 
V.  Stern,  129  Mo.  381,  31  S.  W.  772, 

32:  420 

863.  The  mere  collection  of  a  debt  by  a 
foreign  corporation  after  the  passage  of  an 
act  imposing  certain  conditions  upon  its 
right  to  do  business  is  not  within  the  pro- 
hibition of  the  statute,'  where  the  debt  was 
due  on  a  contract  made  before  the  act  was 
passed.  Pioneer  Sav.  &  L.  Co.  v.  Cannon, 
96  Tenn.  599,  36  S.  W.  386,  33:  112 

864.  A  foreign  corporation  will  not  be  de- 
nied recognition  by  the  courts  of  a  state 
merely  because  composed  exclusively  of  its 
own  citizens.  Oakdale  Mfg.  Co.  v.  Garst, 
18  R.  L  484,  28  Atl.  973,  23:  639 
Against. 

For  Causing  Death,  Conflict  of  Laws  as  to, 
see  Conflict  of  Laws,  225. 

Jurisdiction   of  Action,   see  Courts,  I.  b,  4. 

Federal  Jurisdiction,  see  Courts,  378-380. 

Garnishment  of,  see  Garnishment,  20-25,  42, 
68-74,  84,  110,  112. 

Jurisdiction  to  Render  Judgment  against, 
see  Judgment,  22,  28. 

Setting  Aside  Judgment  against,  see  Judg- 
ment, 421. 

Running  of  Limitations  against,  see  Limita- 
tion of  Actions,  166-172. 

Removal  of,  see  Removal  of  Causes,  11-17. 

Venue  of  Action,  see  Venue,  13-16. 

Service  of  Process  on  Corporation,  see  Writ 
and  Process,  II.  b. 

See  also  supra,  638,  847. 

For  Editorial  Notes,  see  infra,  VIII.  §  58. 

865.  A  foreign  corporation  doing  business 
in  the  state  does  not  acquire  a  fixed  resi- 


dence in  the  state,  for  the  purpose  of  suing 
and  being  sued,  by  designating  an  agent 
upon  whom  process  may  be  served  as  re- 
quired by  the  provisions  of  Id.  Rev.  Stat. 
§  2653.  Boyer  v.  Northern  P.  R.  Co.  8 
Idaho,  74,  66  Pac.  826,  70:  691 

866.  A  foreign  corporation  doing  business 
in  the  state,  and  having  agents  located 
therein  for  this  purpose,  may  be  sued  and 
served,  in  the  same  manner  as  domestic 
corporations,  upon  any  transitory  cause  of 
action,  whether  originating  in  the  state  or 
otherwise;  and  it  is  immaterial  whether  the 
plaintiff  be  a  nonresident  or  a  resident  of 
the  state,  provided  the  enforcement  of  the 
cause  of  action  would  not  be  contrary  to  the 
laws  and  policy  of  the  state.  Reeves  v. 
Southern  R.  Co.  121  Ga.  561,  49  S.  E.  674, 

70:  513 

867.  A  foreign  corporation  actually  doing 
business  within  a  state  cannot  avoid  lia- 
bility to  be  sued  therein  upon  controversies 
arising  out  of  transactions  performed  there, 
upon  the  ground  that  it  has  not  consented 
to  be  subject  to  the  jurisdiction  of  the 
courts,  where  the  statutes  provide  that 
transacting  business  within  the  state  shall 
make  it  subject  to  such  jurisdiction.  Abbe- 
ville E.  L.  &  P.  Co.  V.  Western  Electrical 
Supply  Co.  61  S.  C.  361,  39  S.  E.  559, 

55:  146 

868.  A  foreign  corporation  which  has  its 
principal  place  of  business  and  the  bulk  of 
its  property  in  a  state  with  whose  laws  it 
has  complied  for  the  purpose  of  obtaining 
the  nrivilege  of  doing  business  there,  which 
subject  it  to  the  service  of  process  there, 
is  subject  to  the  jurisdiction  of  the  courts 
of  that  state  in  actions  to  collect  debts  due 
from  it  either  to  foreign  or  domestic  credit- 
ors, so  far  as  foreign  creditors  are  per- 
mitted to  maintain  actions  in  the  state. 
Goodwin  v.  Claytor,  137  N.  C.  224,  49  S.  E. 
173,  67:  209 

d.  Winding-up;    Insolvency. 

Transmitting  Funds  to  Foreign  Receivers  of 

Loan    Associations,    see    Building    and 

Loan  Associations,  84. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

I.  f. 
Jurisdiction  of,  see  Courts,  77. 
Presumption  as  to  Validity  of  Assignment, 

see  Evidence,  413. 
Receiver  of,  see  Receivers,  VI. 
See  also  supra,  725. 

869.  The  invalidity  of  a  resolution  passed 
at  its  domicil  by  a  foreign  corporation  to 
wind  up  its  affairs  will  not  entitle  the  courts 
of  a  foreign  state  in  which  it  is  doing  busi- 
ness to  decree  its  dissolution  and  appoint 
a  receiver,  if  its  directors  have  submitted  to 
the  jurisdiction  so  that  relief  may  be  afford- 
ed by  simply  enjoining  the  execution  of  the 
resolution.  Republican  Mountain  Silver 
Mines  v.  Brown,  19  U.  S.  App.  203,  7  C.  C. 
A.  412,  58  Fed.  044,  24:  776 

870.  The  motives  of  the  stockholders  of  a 
corporation,  resident  at  its  domicil,  in  call- 
ing a  meeting  to  wind  it  up  on  such  short 
notice     that     the      majority      stockholders 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


809 


resident  at  its  place  of  business  cannot  at- 
tend the  meeting  will  not  cause  equity  to 
interfere,  if  the  proceeding  is  strictly  ac- 
cording to  law  and  the  foreign  stockholders 
might  have  appointed  an  agent  to  repre- 
sent their  interests.  Id. 

871.  The  provision  of  Laws  1890,  chap. 
564,  §  48,  that  no  corporation  shall  make 
any  transfer  or  assignment  to  any  person 
whatever  in  contemplation  of  its  insolvency, 
and  declaring  every  such  assignment  void, 
refers  solely  to  domestic  corporations.  Van- 
derpoel  v.  "Gorman,  140  N.  Y.  563,  35  N.  E. 
932,  24:  548 

872.  A  foreign  corporation  carrying  on 
business  in  New  York  may  there  make  an 
assignment  for  the  benefit  of  its  creditors 
without  preferences,  in  the  absence  of  any 
statute  of  the  state  of  its  creation  prohibit- 
ing such  assignment,  although  the  laws  of 
New  York  prohibit  such  an  act  on  the  part 
of  domestic  corporations.  Id. 

873.  The  prohibition  of  the  New  York 
statute  against  assignments  by  domestic 
corporations  of  property  in  contemplation  of 
insolvency  does  not  evince  any  public  policy 
of  the  state  forbidding  the  exercise  by  a 
foreign  corporation  having  property  in  the 
state  of  its  inherent  common-law  right  to 
make  such  an  assignment, — especially  where 
the  assignment  is  valid  in  the  state  of  the 
creation  of  the  corporation,  and  provides  for 
an  equal  distribution  of  the  property  among 
all  of  the  creditors,  in  conformity  with  the 
policy  of  New  York  regarding  the  distribu- 
tion of  the  property  of  insolvent  domestic 
corporations.  Id. 

874.  The  New  York  statute  prohibiting 
assignments  or  transfers  by  insolvent  cor- 
porations has  no  extraterritorial  force,  and 
does  not  affect  the  validity  of  an  assign- 
ment by  an  insolvent  corporation,  executed 
in  Ohio,  as  a  transfer  of  a  fund  in  Illinois. 
Warren  v.  First  Nat.  Bank,  149  111.  9,  38 
N.  E.  122,  25:  746 


VIII.  Editorial  Notes. 

a.  Nature;    creation;    jurisdiction  and  con- 
trol. 

Taxation  of,  see  Taxes,  VI.  §§  10-17. 

§  I.  Generally. 

Corporations  classified.     9:33.* 

Nature  of  public  corporation  owned  by 
state.     29:378. 

Counties  as  quasi  corporations.     1:757.* 

Nature  of  incorporated  institutions  belong- 
ing to  the  state.     29:  378. 

Acts  essential  to  creation  of.    7:591.* 

Existence;   how  shown.     13:370.* 

Presumption  as  to  incorporation.     22:276. 
In  civil  cases.     22:276. 
In  criminal  cases.     22:278. 

Effect  of  subsequent  incorporation  to  make 
valid  a  gift  to  an  unincor- 
porated asociation.  14: 
410. 


Estoppel  of  person  dealing  with  body  as 
corporation,  to  deny  its 
incorporation.     12:366.* 

Estoppel  of  one  corporation  to  deny  the  ex- 
istence   of    other.     13:779. 

Judicial  notice  in  respect  to.     4:36.* 

De  facto  foreign  corporation.     24:293. 

Residence  or  citizenship  of  corporation  for 
purpose  of  Federal  juris- 
diction in  state  other  tban 
that  where  created.  14: 
184. 
Adoption    or    new    incorporation.     14: 

185. 
Consolidation    with    domestic    corpora- 
tion.    14:185. 
Residence;  an  "inhabitant"  where.     14: 

185. 
Where  "found"  under  act  of  1875.     14: 
186. 

As  to  Status  of  Corporations,  Generally,  see 
infra,  VIII.  §  2. 

§  2.  Status. 

As  persons,  generally.     19:223. 

As  persons  within  14th  Amendment.  10: 
129;*  14:585;  60:330. 

As  persons  within  the  meaning  of  statutes. 
19:225;   60:331. 

As  citizens  within  Federal  Constitution. 
14:  580;    60:  330. 

As  citizens  for  purposes  of  Federal  jurisdic- 
tion.    11:216.* 

Residence  or  citizenship  for  purpose  of  Fed- 
eral jurisdiction  in  state 
other  than  that  where  cre- 
ated.    14:184. 

Consolidated   interstate   corporation   as  do- 
mestic corporation  of  one 
of  the  states.     15:82. 
How  far  new  corporation  created.     15: 

82. 
Extent    and   limit   of   state   authority. 

15:83. 
Privileges  and  obligations  under  state 

statutes.     15:84. 
Taxation.     15:85. 

§  3.  Jurisdiction  and  control  over. 

See  also  supra,  VIII.  §  2. 

Jurisdiction  of  Federal  courts  over  corpora- 
tions.    1:332.* 

Equity  jurisdiction  over  corporations.  2: 
551;*    9:651.* 

Removal  of  suits  against  corporations. 
1:65.* 

What  service  of  process  upon  corporation  is 
sufficient  to  constitute  due 
process  of  law.     50:588. 

Mandamus  to  compel  acts  by  corporation. 
12:180.* 
To  enforce  provisions  of  by-laws  of  cor- 
poration.  32:575. 

Mandamus  to  enforce  right  to  inspect  books 
of  corporation.    45:457. 

b.  Consolidation. 

§  4.  Oenerally. 

See  also  Railroads,  III.  §  2. 

English  doctrine  of  amalgamation.    13:781.* 

Suit  to  restrain.     2:594.* 

Effect   of.     3:435.* 

New  corporations  created  by.      2:564.* 


810 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


Rights    of    shareholder    when    consolidation 

unauthorized.     4:365.* 
Taxation    of    consolidated    corporation,    ex- 
emption.    6:222.* 
Consolidated   interstate   corporation   as   do- 
mestic corporation  of  one 
of  the  states.     15:82. 
§  5.  Right  to  consolidate. 
Definition.     52:369. 

Necessity  of  legislative  sanction.     52:370. 
In  general.     52:370. 

Requisite  for  each  constituent.     52:371. 
May  be  conditional.     52:372. 
How  expressed.     52:372. 

In    charter    or    prior    general    act. 

52:372. 
Statute    antecedent    to    consolida- 
tion.    52:373. 
Ratification    of    unauthorized    con- 
solidation.    52:373. 
Consolidation  as  affected  by  law.     52:373. 
Organic.     52:  373. 
Statutory.     52 : 374. 

Permissive  statutes.     52:374. 
Restrictive  statutes.     52:376. 
Interpretation,      application,      and 
construction.     52:377. 
Common  law.     52:380. 
Necessity  of  stockholder's  consent.     52:381.* 
In  general.     52:381. 
How  given.     52:381. 
Expressly.     52:381. 
Implied.     52:382. 
When  dispensed  with.     52:387. 
Rights  and  remedies  upon  unauthorized  con- 
solidation.    52:387. 
Public.     52:387. 
Private.     52:  387. 

The  constituent  corporations.     52: 

388. 
Stockholders.     52 :  388. 
Subscribers  to  stock.     52:390. 
Creditors,  bondholders,  and  others. 
52:390. 
Authority     of     railroads     to     consolidate. 

5:726.* 
Restrictions  on  consolidation  of  parallel  or 
competing    railroads.     45: 
271. 
§  6.  Rights   and   liabilities  of   consolidated 

corporation. 
Succession  to  rights  and  obligations  of  con- 
stituent   corporations.     2: 
565;*  3:747;*  5:726.* 
Liability    of   a    consolidated    railroad    com- 
pany for  the  debts  of  its 
preaecessor.     23:231. 
Assumption    of    liability    by    contract. 

23:232. 
Statutory  liability.     23:232. 
Liens  and  priorities.     23:233. 
Pleading  and  practice.     23:234. 

c.  Charters;    franchises;    by-laws. 

§  7.  Generally. 

See  also  Railroads,  III.  §  1. 

Taxation   of   Franchise,    see    Taxes,   VI.    §§ 

10-17. 
Corporate    charters    as    contracts.     2:257;* 

10:406.* 
Corporate     franchise     as     a     public     grant. 

8:498.* 


Conditions  attached  to  grant  of  franchise. 
9:34.* 

Grants  of  corporate  rights  or  privileges  to 
be  construed  strictly.  9: 
34.* 

Covenants  in  grant  to  corporation.     2:199.* 

Restriction  of  power  to  terms  of  grant. 
3:175.* 

Extraterritorial  effect  of  restriction  in  char- 
ter as  to  rate  of  interest. 
62:76. 

Execution  or  judicial  sale  of  corporate  fran- 
chise, or  property  neces- 
sary to  its  enjoyment. 
20:737. 

§  8.  Forfeiture;  restraining  exercise  of  cor- 
porate franchise. 

As  to  Dissolution,  Generally,  see  infra,  VIIL 
§§  48-51. 

Restraining  exercise  of  corporate  franchise. 
9:273.* 

Quo  warranto  for  illegal  exercise  of  corpo- 
rate   franchise.     7:319.* 

Quo  warranto  against  corporation  for  mak- 
•     ing  illegal  charges  in  the 
course  of  authorized  busi- 
ness.    63:761. 

Forfeiture  and  dissolution  for  misuser  of 
franchise.     8:498.* 

Proceedings  to  forfeit  franchise.     9:273.* 

How  forfeiture  of  charter  or  franchise  de- 
clared.    2:256;*  9:35.* 

For  what  causes  charter  may  be  forfeited. 
9:37.* 

Proceedings  against  corporation  to  forfeit 
franchise  for  misuser  or 
nonuser.     3:510.* 

Migration  of,  as  ground  for  forfeiting  cor- 
porate charter.     24:462. 

How  and  in  what  proceedings  forfeiture  of 
charter  taken  advantage 
of.     9:37.* 

§  9.  By-laws. 

Effect  of,  as  notice.     25:48. 

As  to  members  of  the  corporation.     25: 

48. 
As  to  lien  on  stock.     25:48. 
As  to  public  generally.     25:49. 

Whether  third  persons  dealing  with  agents 
of  private  corporations 
are  charged  with  knowl- 
edge of  by-laws  of  corpo- 
ration.    10:355.* 

Restricting  transfer  of  stock.    27:271. 

Effect  of,  on  contract.     1:482.* 

Regulation  by  by-laws  of  elections  by  pri- 
vate corporations.  18: 
582. 

Mandamus  to  enforce  provision  of  by-laws 
of  corporation.     32:575. 

Rights  of  members  of  benefit  society  as  af- 
fected by  by-laws.     5:96.* 

Conflict  between  by-laws  and  certificate  or 
policy  of  mutual  benefit 
society  or  insurance  com- 
pany.    47:681. 

d.  Powers  and  liabilities. 

I.  Rights  and  powers,  generally. 

§10.  Generally. 

Of  Consolidated  Corporation,  see  supra, 
VIIL  §  6. 


CORPORATIONS.  VIII.  (Ed.  Notes.) 


811 


Strict  construction  of  corporate  powers.  1: 
458.* 

Common-law  powers;  auxiliary  transaction. 
6:661;*  11:845.* 

Inciderital  powers.     11:845.* 

Restriction  of  powers.  3:174;*  5:100*  7: 
605.* 

Rights  subject  to  police  power.     9:35.* 

Formation  of  trusts  by  illegal  combination; 
monopolies.  8:500;*  9: 
37.* 

Corporation  as  trustee.     2:418;*  11:715.* 

Legal  powers  and  privileges  of  surety  and 
trust  companies.     48:  587. 

Power  to  take  property  by  will  and  to  hold 
property.     2:387.* 

Libel  or  slander  of  a  corporation.     52:525. 

Power  to  sell  property.     6:678.**^ 

Power  to  borrow  money.     6:681;*  11:845.* 

EfTect  of  statute  forbidding  corporation  to 
plead  usury,     62:79. 

Power  to  mortgage  property.  6:565,*  661;* 
11:846.* 

Power   to   issue   negotiable   securities.     11: 
846.* 
Protection    of    bona    fide    holders.     11: 
846.* 

Acts  ultra  vires.    2:  420;*    6:  290.* 

Estoppel  to  set  up  plea  of  ultra  vires.  1: 
285;*  11:847;*  12:168;* 
20:765. 

Right    of    private    persons    to    contest    the 
power  of  a  corporation  to 
take     or     hold     property. 
32:293. 

State  alone  can  question  right  of  corpora- 
tion in  possession.  32: 
29:3. 

The  inability  of  the  corporation  to  hold  the 
property  does  not  give  im- 
munity to  wrongdoers. 
32:295. 

Right  of  persons  contracting  with  corpora- 
tion.    32:295. 

Defective  organization  and  forfeiture.  32: 
295. 

Suits  by  the  corporation.     32:296. 

Specific  performance.     32:296. 

Property  acquired  by  will.     32:297. 

2.  Contracts. 

§  II.  Generally. 

See  also  supra,  VTTI.  §  10. 

As  to  Power  of  Officers  or  Agent  to  Con- 
tract, see  infra,  VIII.  §  15. 

Power  to  contract.     1:285;*  6:290.* 

Contracts   against  public   policy.     8:497.* 

Manner  of  executing  corporate  mortgage. 
6:565.* 

Execution  of  deed  by  corporation.     12:588.* 

Seal  as  affecting  negotiability  of  bill  or  note 
of  corporation.     35:606. 

§  12.  Between  corporations  having  common 
directors  or  ofl5cers. 

Validity  in  general.     33:788. 

Ratification.     33:790. 

When  one  company  controls  the  other,  33: 
791. 

Lack  of  consideration;  transactions  out  of 
the  usual  course  of  busi- 
neaa.     33:793. 


Actual  fraud  or  unfair  advantage  to  direct- 
ors.    33:794. 
Presumption  as  to  unfairness.     33:796. 

3.  Liability  of  corporatioiL 

§13.  Generally. 

Of  Consolidated  Corporation,  see  supra,  Vlil. 
§  6. 

Taxation  of  Corporations,  see  Taxes,  VI. 
§§    10-17. 

For  torts.     10:129.* 

For  breach  of  duty  imposed  by  law.    4:299.* 

For  felonies  or  public  wrongs.     4:299.* 

For  acts  of  officers.     12:714;*  13:193.* 

Of  railroad,  for  the  acts  of  a  receiver.  1: 
179.* 

On  contracts  of  promoters.     26:544. 

Of  corporation  for  charitable  purposes  for 
act  of  servant.     23:200. 

Liabilities  of  incorporated  institutions  be- 
longing  to   state.     29:383. 

Power  of  railroad  company  to  devest  itself 
of  its  duties  or  responsi- 
bilities by  lease.     4:135.* 

For  malicious  prosecution.     14:791. 

For  fraud  or  forgery  of  officers  in  issue  of 
stock.     19:331. 

For  acts  of  independent  contractor  in  re"- 
spect  of  matters  incident 
to  the  exercise  of  corpo- 
rate  franchise.     66:136, 

At  whose  instance  judgment  against  corpo- 
ration may  be  set  aside. 
54:763. 

Injunction  against  execution  sale  of  prop- 
erty of  quasi  public  cor- 
poration.    30:104. 

e.  Officers  and  agents. 

§14.  Generally. 

Directors,  trustees,  and  officers  of  incorpo- 
rated institutions  belong- 
ing to  state.     29:384. 

Distinction  between  servants  and  agents  of. 
2:192.* 

Application  of  rule  of  respondeat  superior 
to  corporation,     1:607.* 

How  directors  chosen.     12:784.* 

Directors  de  facto.     15:418. 
Who  are.     15:418. 
Eligibility.     15:419. 

Termination  of  right  to  act  as  direct- 
ors.    15:419, 

§15.  Rights  and  powers  of. 

Power  of  agents  to  indorse  negotiable  paper. 
27:401. 

Bound  to  notice  by-laws.     25:48, 

Compensation  for  services  of.     3:378.* 

Right  of  officer  of  corporation  to  take  ac- 
knowledgment of  instru- 
ment in  which  corporation 
interested.     33:337. 

Contracts  by  agents.     12:715.* 

Time  for  which  contracts  of  employment 
may  be  made  on  behalf  of 
corporation  by  its  officers, 
directors,  and  agents. 
49:471. 
Contracts  of  permanent  employment. 
49:47L 


812 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


Other    contracts    of    employment.     49: 
472. 
Power  of  directors  to  sell  property  of  cor- 
poration.    6:678.* 
Right   of  directors,   when   creditors   of  cor- 
poration, to  enforce  stock- 
holders' liability  to  credit- 
ors.    50:273. 
§  1 6.  Of  president  and  vice  president. 
As  to  contracts,  generally.     14:356. 

Effect  of  express  provisions  to  limit 
authority.     14:  357. 

As  to  borrowing  money.     14:357. 

As  to  drawing  or  paying  checks.  14: 
357. 

To  transfer  negotiable  papers.     14:358. 

Employment  of  agents.     14:358. 

As  to  transfers  of  property.     14:358. 

As  to  mortgages.     14:359. 

As  to  admissions  and  representations. 
14:359. 

As  to  settlement  or  surrender  of  claims. 
14:359. 

As  to  litigation  and  employment  of  at- 
torneys.    14:360. 
When  vice  president  may  exercise  author- 
ity of  president:      14:360. 
§  17.  Duties  and  personal  liabilities  of. 
Garnishment  of  officer  or  agent  of,  by  cred- 
itor   of    corporation.     36: 
561. 
Personal  liability  of  officers  on  note   made 
for  corporation.     19:  676. 

When  promise  is  by  the  company  and 
signature  is  official.  19: 
676. 

When  a  promise  is,  "we,"  or  "I,"  and 
the  signature  is  in  the 
name  of  the  company  by 
its  officers.     19:  676. 

When  the  promise  is  official  and  the 
signature  is  individual. 
19:677,  680. 

Notes  in  the  form  of  duebills.     19:677. 

Notes  promising,  "on  behalf  of,"  or  "on 
account  of.'*     19:677. 

Indorsements  made  officially.     19:678. 

When  the  promise  is  individual  and  the 
signature  is  official.  19: 
679. 

Notes  made  under  seal  of  the  corpora- 
tion.    19:679. 

When  the  promise  is  made  officially  and 
the  signature  is  official. 
19:680. 

Notes  where  the  consideration  is  ex- 
pressed on  the  face  of  the 
paper.     19:081. 

Notes  having  company  name  thereon. 
19:681. 

Where  the  official  designation  is  altered. 
19:  681. 
Personal  liability  of  officers  of  incorporated 
institutions  belongin;;  to 
state.  29:385. 
Personal  liability  of  officers  for  torts  or 
negligence  of  corporation. 
28:421. 

In  general.     28:421. 

Fraud.     28:421. 

Conversion.     28:422. 

Trespass.     28:422.. 


Infringement.     28:423. 
Of  patent.     28:423. 
Of  trademark.     28:426. 
Of  copyright.     28:426. 
Injury  to  persons  generally.     28:426. 
Injury  to  employee.     28:427. 
Libel.     26:781. 
Negligence.     28:427. 
§  18. —  Of   directors. 
Personal  liability  of  directors  on  their  con 

tract.     3:397.* 
Personal     responsibilitv     to     creditors.     4 

747.*' 
Liability  to  the  corporation.     55:751. 

Standard  or  degree  of  care.     55:  752. 

Relation    of    directors    to    corpora 

tion    generally.      55:  652. 

General  principles.     55:653. 

Gross  or  ordinary  negligence.      55 

654. 
Standard   of  reasonable  care.     55 

655. 
Nonfeasance  and  misfeasance.     55 

657. 
Questions  of  law  or  fact;    burden. 
55:  758. 
Liability    for    acts    in    excess    of   their 
power.     55 :  758. 
In  general.     55:758. 
As  affected  by  mistake.     55:759. 
Effect    of    assent    or    acquiescence. 
55:761. 
Liability  for  their  own  acts  and  omis- 
sions with  respect  to  mat- 
ters  within  their   author- 
ity.   55:761. 
General  rule.     55:761. 
Specific  application.     55:762. 

Loans    and    investments.     55: 

762. 
Other  transactions.     55:764." 
Liability    for    misconduct    of   executive 
officers      and      employees. 
55:766. 
Liability  for  acts  and  omissions  of  co- 
directors.     55:771. 
In  general.     55:771. 
Nonattendance    at    meetings.     55: 

771. 
Duty  to  protest  and  oppose.     55:  772. 
Partial  participation.     55:772. 
Acts  and  omissions  of  committees. 
55:773. 
Liability   as   affected  by  compensation. 

55:773. 
Measure    of    damages;    items    of    loss. 
55:774. 
Duty  of  directors  of  savings  banks.     2:535.* 
Liability  for  fraud  and  breaches  of  trust  by. 

2:534.* 
Trust  relation  of  directors  in  stock  corpora- 
tions.    2:534;*  4:746.* 
Care  required  of  bank  directors.     15:305. 
When  corporations  must  bring  suit  to  en- 
force liability  of  directors. 
9:653.* 
When    stockholders    may    sue.     9:654,* 
655.* 
Request    of    corporation    as    condi- 
tion.    9:654.* 
Necessity  of  joining  corporation  as 
a   party.     9:656.* 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


813 


f.  Capital;    stock  and  stockholders. 

I.  In  general. 

§  19.  Generally. 

Taxation  of  Capital  Stook  of  Corporation, 

see  Taxes,  VI.  §  13. 
Issuance  of  corporate  stock  not  subject  to 

mandate.     3:  265.* 
Rights    of    owner    to     stolen    certificates. 

13:605.* 
Distinction     between     capital     stock     and 

shares.     2:798.* 
Issuance   of   paid-up   stock   certificates.     6: 

677.* 
Issue  of  watered  or  fictitious  stock.     6:677.* 
Situs  of  corporate  stock  for  purposes  of  ad- 
ministration.    24:687. 
Attachment  of  shares  of   stock-  in   foreign 

corporation.     55 :  796. 
Certificates  of   stock   as  negotiable  instru- 
ments.    12:781.* 
Donation  to  corporation  of  shares  of  its  own 

stock.     18:255. 
§  20.  Bonus  stock;      forged    or    fraudulent 

issue. 
Bonus  stock  of  corporations.     38:490. 
General    principle.     38:490. 
Constitutional  and  statutory  provisions. 

38:491. 
Eflfeot  of  recitals  and  nominal  payment. 

38:492. 
Stock  as  bonus  to  purchasers  of  bonds. 

38:493. 
Mere  acceptance  of  shares;    surrender; 

cancelation.     38:494. 
Rights  of  creditors.     38:494. 
Bona  fide  purchasers.     38:494. 
Liability  of  corporation  for  fraud  or  forgery 
of  its  officers  in  the  issue 
of  stock.     19:331. 
Who  entitled  to  protection  as  bona  fiae 

purchasers.     19:332. 
Forged  transfers.     19:333. 
§   21.    Ownership   of   stock;    who   may   be 

stockholders. 
Charter  restrictions  on  eligibility  to  become 
a  shareholder  in  a  corpora- 
tion.    46:  618. 
Sole  ownership  of  stock  of  a  corporation. 

19:  684. 
Right  of  nonresidents  to  becoiae  stockhold- 
ers.   24:  252. 
Power  of  corporation  to  deal  ia.  the  stock 
of   other   corporations,   or 
in  its  own.     It:  252. 
Power  to  deal  in  the  shares  of  other 
corporations.     18:  252. 
Taking  stock  in  payment  of  debts. 
18:  253. 
Power  to  deal  in  its  own  stock.     18: 
254. 
May  take  its  own  stock  in  satis- 
faction of  debts.     18:  255. 
Donations.     18:  255. 
Right   of,   to   purchase   its   own    shares    of 
stock.     61:621. 
In  the  absence  of  statutory  authority. 
61:  621. 
In    general.      61:  621. 
Taking  shares  in   paymemt  of  in- 
debtedness    due     corpora- 
tion.   61:  629. 


Statutory  grant  of  power.    61:  630. 
Statutes  forbidding  purchase."    61:  631. 
Rights  of  creditors.    61 :  632. 
In  general.     61:  632. 
Creditors  who  are  entitled  to  pro- 
tection.   61:  632. 
What    constitutes    a    purchase    within 
meaning  of  rule  forbidding 
same.     61 :  633. 
§  22.  Increase  of  capital  stock. 
Generally.     9:  631.* 

Power  to  increase  capital  stock  of  corpora- 
tions.    38:  616. 
In  general.     38:  616. 
Power  of  directors.     38:  617. 
Constitutional     and     statutory     provi- 
sions.   38:  617. 
Right  as  between  owner  of  capital  and  in- 
come,  to   increased  stock. 
16:  461. 
§  23.  Forfeiture  of  corporate  stock. 
Power  to  forfeit.     27:  305. 
Validity  of  exercise  of  power.    27:  307. 
In  general.    27 :  307. 
Necessity  of  notice.    27:  310. 
Sufficiency  of  notice.     27:  310. 
Redemption  or  other  remedy  of  stockholder. 

27:  311. 
Effect  of  forfeiture  on  personal  liability  of 
stockholder,     27:   314. 
As  to  unpaid  assessments.    27:  314. 
As  to  creditors.     27:  317. 
Miscellaneous.    27:  321. 
§  24.  Preferred,  guaranteed,  and  interest- 
bearing  stock. 
Power  to  issue.    27:  136. 

In  the  first  instance.    27:  136. 
Given  by  change  of  charter  or  articles. 
27:  138. 
Estoppel  to  deny  validity.     27:  139. 
Nature  of  interest  created  by.    27:  140. 
Rights  and  preferences  as  to  assets.     27: 

142. 
Rights   and   preferences  in   dividends.     27: 
143. 
In  general.    27:  143. 
Payment  out  of  capital.    27:  144: 
Payment  when   capital   is  impaired  or 

debts  unpaid.     27:  144. 
Guaranteed  dividends.    27:  145. 
Preference  over  common  stock.    27:  146. 
Accumulations  and  arrears.     27:  147. 
Remedy    to    obtain    or    protect    dividends. 

27:  148. 
Guaranty    of   dividends    by    outside   party. 

27:  149. 
Interest-bearing  stock.    27:  149. 
Special  stock.    27:  151. 
Reduction  of  shares.    27:  151. 
Miscellaneous  matters.     27:  153. 

2.  Subscriptions. 

§  25.  Generally. 

As  to  liability  upon,  see  infra,  VIII.  §§  36- 

43. 
Validity  of.  4:  508.* 
Validity    of    conditional    subscriptions.      4: 

509.* 
Agreement  to  subscribe  as  a  subscription. 

4:507.* 
Agreements  between    proposed  subscribers. 

4:  508.» 


814 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


Whether  joint  or  several.     22:  81. 

Subscriber  bound  to  know  effect  of  contract. 
3:  796.* 

Release  from  subscription.     7:  706.* 

Simulated  subscriptions  a  fraud  in  law. 
3:  37.* 

Right  to  vary  terms  of  subscription  by  pa- 
rol.    3:  798.* 

When  statute  of  limitations  begins  to  run 
on  subscription  to  corpo- 
rate stock.     7:  660.* 

§  26.  Withdrawal  of  subscription. 

(Jeneral  rule.     33:  593. 

After  organization  of  corporation.     33:  593. 

Rule  in  case  of  preliminary  subscriptions. 
33:  595. 

Cases  holding  that  subscriptions  cannot  be 
withdrawn.     33:  595. 

Cases  permitting  withdrawal.     33:  596. 

Illegal   contract.     33:  597. 

Agreement  to  subscribe.     33:  597. 

Statutory   rules.     33:  597. 

Effect  of  death  of  subscriber.     33:  597. 

§  27.  Rescission  for  fraud  or  misrepresen- 
tation. 

Right  to  and  manner  of  relief.     33:  721. 

Estoppel  to  rescind.     33:  722. 

No  relief  against  equally  innocent  persons. 
33:  725. 

Effect  of  insolvency  or  winding-up  proceed- 
ings.    33:  727. 

Must  be  fraud  of  corporation.     33:  728. 

What  fraud  will  authorize  rescission.  33: 
729. 

3.  Transfer;    sale. 

§  28.  Generally. 

As  Affecting  Right  to  Dividends,  see  infra, 

VIII.  §  34. 
Effect  of,  upon  Stockholder's  Liability,  see 

infra,   VIII.   §   38. 
Specific    performance    of    contract    to    sell 

stock.     50:  501. 
Implied  warranty  on  sale  of  stock.     53:  153. 
Validity  of  executory  contracts  for  sale  of 

corporate    stock.     3:  784.* 
Sufficiency  of  transfer.     12:  781.* 
Forged  transfers.     19:  331. 
Bequest  01  corporate  stock.     7:  391.* 
§  29.  Duty  of  corporation  with  respect  to 

transfer  of  stock  held  in  trust. 
Generalh'.     15:043. 

What  amounts  to  notice  of  trust.     15:  643. 
The  English  rule.      15:  044. 
Notice   from   circumstances.     15:  645. 
Application   of  the   rules.     15:  045. 
Enforcement  of  liability.     15:  040. 
§  30.  Restrictions  on  right  to  sell. 
By  by-law.     27:  271. 

In  general.     27:  271. 
Of  national  banks.     27:  273. 
By  articles  of  association.     27:  27.1. 
Exercise  of  power  to  approve  or  disapprove. 

27:  274. 
Specific  performance  of  contract  for  sale  of 

corporate  stock.     12:  770.* 
§  31.  Pledge. 
I.iabilitv  of  Pledcrf^e  as  Shareholder,  see  in- 

'  fra.  Vlll.  ?  .•$?>. 
Effect  of  pledgee's  failure  to  transfer  shares 

on  company's  books.     12: 

781.* 


Pledgee's  title.     12:782.* 

Right  to  vote  stock.     12:  783.* 

Right  to   dividends  on   pledged  stock.     12: 

783;*  45:  394. 
Validity  of  pledge  or  other  transfer  of  stock 
of  corporation  when  not 
made  in  books  of  com- 
pany, as  against  attach- 
ments, executions,  or  sub- 
sequent transfers.    67 :  656. 

Registry  not  necessary  in  absence  of 
statute  or  by-law.  67: 
660. 

Statutes  requiring  transfer  on  books. 
67 :  664. 

By-law  requiring  transfer  on  books. 
67:672. 

Provision  of  certificate  requiring  trans- 
fer on  books.     67:  675. 

Requirement  of  record  with  county 
clerk.     67 :  675. 

Effect  of  effort  to  secure  transfer.  67: 
676. 

Effect  of  notice  to  purchaser  or  creditor. 
67:  677. 

Persons  not  entitled  to  benefit  of  stat- 
utes.    67 :  680. 

Estoppel   of   pledgee.     67 :  682. 

Statutory  recognition  of  transfers  of 
certificates.  67:  683. 
Implied  authority  of  pledgee  to  sell  corpo- 
rate stocn..  43:  742. 
What  sales  of  corporate  stock  by  pledgee 
amount  to  conversion.  43; 
739. 

4.  Rights  of  shareholders. 

§  32.  Generally. 

With  Respect  to  Consolidation,    see    supra, 

VIII.  §  5. 
Whether    corporation    or    stockholder    real 
party  in  interest  by  whom 
action    must    be    brought. 
64:  609. 
WTien   shareholder   may   maintain    suit   for 
protection     of     corporate 
property    and    rights.     4: 
746.* 
§  33.  Right  of  stockholder  to  inspect  books 

of  corporation. 
At   common   law.     45:  446. 
Under  statutes.     45:  446. 
Extent  of  the  right  generally.     45:  448. 
At  common  law.     45:  448. 
Under   statutes.     45:  448. 
Assistance     of     attorney     or     expert. 

45:  449. 
flaking  memoranda  and  taking  copies. 

45:  449. 
Time  of  inspection.     45:  450. 
The   books   and    papers   inspected.     45: 

451. 
Effect  of  business  convenience  or  neces- 
sity on.     45:  453. 
To    what    corporations    applicable.     45: 
454. 
Domestic   corpoi-ations.     45:  454. 
Foreign   corporations.     45:  454. 
Insolvent  corporations.     45:  456. 


CORPORATIONS.  VIII.  (Ed.  Notes) 


815 


The  remedy.     45:  457. 

By  mandamus.     45:  457. 
By  imposition  of  a  penalty.     45:  457. 
By  acLion  for  damages.     45:  458. 
Other  remedies.     15:  458. 
Sufficiency  of  demand  and  refusal  to  sustain 

remedy.     45:  458. 
Effect  of  purpose  of  stockholder  on  remedy. 

45:  461. 
Generally.     45:  401. 
For  hostile  purposes.     45:  463. 
To  obtain  grounds  for  litigation.     45: 

465. 
To   obtain   knowledge   of   condition   of 

company.     45:  467. 
Rule  that  there  must  be  a  specific  dispute. 

45:  468. 
Matters  of  procedure.     45:  469.   ^ 
In  mandamus.     45:  469.  ' 

In  other  proceedings.     45:  471. 
§  34.  Dividends. 
Guaranty  of  dividends  on  corporate  stock. 

2:  183.* 
Pledgee's  right  to  dividends.     12:  783.* 
Right  to  increased  stock  and  stock  dividends 

as  between  owner  of  capi- 
tal   and    income.     16:  461. 
The  English  rule.     16:461. 
How    far     such    rule     followed    in    this 

country.     16:  462. 
Departures  from  the  E«glish  rule.     16: 

463. 
Right  to  subscribe  for  steck.     16:  464. 
Right    to   dividends    on    transfer   of    stock. 

45:392. 
Undeclared    dividends    pass    with    the 

stock.     45 :  393. 
Rule  applies  between  testator  and  lega- 
tee.    45:  393. 
Between  life  tenant  and  remainderman. 

45:394. 
Between  pledgeor  and  pledgee.     45:  394. 
Sale  for  future  delivery.     45:  394. 
Special  contracts.     45:  395. 
Peculiar     circumstances     under     which 

dividend      was      declared. 

45:  395. 
Apportionment.     45:  396. 
Right  to  deal  with  dividend  separately. 

45:  396. 
Right  to  demand  order  for  dividend  as 

condition     of     performing 

contract  to  purchase.     45: 

396. 
Right     as     between     corporation     and 

transferee.     45:  397. 

5.  Liabilities  of  shareholders. 

§  35.  Generally. 

Self-executing  constitutional  provision  as 
to.     16:286. 

Liability  upon  subscription.     3:  797.* 

Effect  of  secret  arrangement  between  corpo- 
ration and  shareholder. 
3:  797.* 

Liability  of  stockholders  of  insolvent  insur- 
ance company.     38:  110. 

Who  are  laborers,  servants,  or  employees 
under  statute  making 
stockholders  individually 
liable.     18:  308. 


Liability  of  member  of  corporation  for  libel 
published  by  corporation. 
26:  781. 

Right  of  set-off  in  bankruptcy  against  un- 
paid shares  of  corporate 
stock.     55:  47. 

Release  of.     7:  706.* 

§  36.  Calls;   assessments. 

Liability   to  astsessmeut;   calls.     4:  232.* 

Contingent  liability  on  call.     58:  85. 

Effect  of  assessment  on  stockholders  made 
under  order  of  court  in 
another  state  as  res  judi- 
cata.    34:  694. 

Right  to  make  successive  assessments  on 
stocKholders  to  pay  debts. 
66:  971. 

§  37. —  Assessments   on   paid-up   stock. 

General  rule.     45:  648. 

The  question  of  assent.     45:  648. 

Under  state  statutes.     45:  648. 

Under  charter  provisions.     45:  651. 

Assessments   under   by-laws.     45:  651. 

Assessment   by  resolution.     45:  652. 

Voluntary  assessments.    45:  652. 

Nonassessable  stock;   estoppel.     45:  653. 

Injunction  restraining.     45:  653. 

§  38.  Effect  of  transfer  of  shares  upon  lia- 
bility for  unpaid  subscription. 

In  general.     47 :  246. 

Statutes   continuing  liability.     47 :  256. 

Transfer  prohibited.     47:  256. 

Generally  transfer  releases  subscriber.     47: 
257. 
Under  statutory  provisions.     47:  257. 
Corporation    scheme    contemplates    re- 
lease.    47 :  258. 
Transfer  must  be  perfected.    47:  260. 
Transfer  must  be  bona  fide.     47:  262. 
After    insolvency    of    corporation.     47: 
262. 

Transfer  to  or  release  by  corporation.  47: 
262. 

Rights  of  creditors.     47 :  264. 

Time  of  transfer.     47 :  264. 

§  39.  Liability  of  pledgee  of  stock  as  a 
shareholder. 

In  general.     36:  139. 

Dummy  holder  for  pledgee's  benefit.  36: 
140. 

Payment  of  debt  or  retransfer.     36:  140. 

Taking  stock  from  corporation  itself.  36: 
141. 

§  40.  Pajnnent  for  stock  by  transfer  of 
property  as  protection  against  lia- 
bility to  creditors  of  corporation. 

Preliminary  statement.     42:  593. 

The  English  law.     42:  593. 

Exceptional  American  cases.     42:  594. 

Subscription  contracts.     42:  597. 

Purchase  of  property  with  stock.     42:  612. 

Provisions  imposing  liability.     42:  617. 

Effect  of  creditor's  knowledge  of  facts.  42: 
619. 

Rights  of  transferee.     42:  620. 

§  41.  Partnership  liability  of  stockholders 
in  case  of  defective  or  illegal  incor- 
poration. 

Corporations  not  authorized  by  law.  17: 
550. 

Effect  of  incorporation  out  0^  the  state. 
17 :  550. 


818 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


Fraudulent   corporations.     17:  550. 
Corporations  de  facto.     17:  551. 
Defectively  organized  companies.     17:  551. 
Statutory    as    distinguished    from    partner- 
ship   liability.     17:  554. 
Intent    to    incorporate.     17:  554. 
Subsequent  loss  of  corporate  character.    17: 

554. 
Partnership  inter  sese.     17:  554. 
§  42.  Who  may  enforce;  remedy. 
Right  of  directors,  when  creditors,  to   en- 
force.    50:  273. 
Right  of  creditor  of  corporation  to  proceed 
against      stockholder.     2 : 
270.* 
Equitable  remedy  to   subject   to  judgment 
against    corporation    debt 
due   it   for   unpaid  stock. 
63:  698. 
Set-oflF  between  corporation  and  stockholder. 

23:316. 
Allowance  of  attorney's  fees  in  suit  to  en- 
force  stockholder's   liabil- 
ity.    54:  825. 
Contingency  of  liability  of  stockholder  as 
affecting  time  for  presen- 
tation   of    claim    against 
his  estate.     58:  85. 
Conflict  of  laws  as  to  limitation  of  actions 
against  stockholders.     48: 
637. 
Law    governing    liability    of    and    remedy 

against.     6:  676.» 
§  43.  Right  to  enforce  outside  of  state  of 

incorporation. 
In  general.     34:  737. 

In  action  by  corporation  or  its  representa- 
tive.    34:  738. 
In  action  by  creditor  of  corporation.     34 
741. 
Remedy  according  to  law  of  forum.    34 

741. 
For  unpaid  subscriptions  to  stock.   34 
742. 
In  general.     84:  742. 
By  creditor's  bill.     34:  743. 
For   statutory    liability   after   stock   is 
fully  paid  for.     34:  747. 
In  general.     34:  747. 
Nature  of  the  liability.     34:  750. 
Liability  absolute  or  distinct  from 
statutory  remedy.  34:  753. 
Constitutional    liability.     34:  755. 
Exclusiveness  of  statutory  remedy 
provided  in  state  of  incor- 
poration.    34:  755. 
Conditions    prescribed   by   statutes 
in  state  of  incorporation. 
34:  757. 
Action  at  law.     34:  758. 
Suit  in  equity.     34:  759. 
Remedies  in  Federal  courts.     34:  761. 
In  general.     34:  761. 
In  equity.     34:  761. 
At  law.     34:  762. 
Contribution   between   stockholders   of   for- 
eign     corporations.        34: 
763. 

g.  Stockholders'   meetings;     voting. 

§  44.  Generally. 

Who  entitled  to  vote  stock.     12 :  783.* 


Vote  on  pledged  stock.     12:  783.* 

Power  to  vote  on  stock  held  by  joint  owners. 

15:  665. 
Voting  trusts  of  corporate  stock.    15:  683. 
Regulation  by  by-laws  of  elections  by  pri- 
vate corporations.  18:  582. 
As  to  right  to  vote.     18:  583. 
As  to  proxies.     18:  584. 
§  45.  What  constitutes  a  quorum  for  meet- 
ing of  stockholders. 
Where  number  indefinite.     21:  174. 
Where  number  is  definite.     21:  175. 
Where  the  "stock"  votes.    21:  175. 
Presumption  as  to  quorum.     21:  175. 
Modifications    by    statute    or    by-law.     21: 

175. 
§  46.  Right   to   vote   by   proxy   in   private 

corporation. 
At  common  law.     29:  844. 
Under  statutes  and  by-laws.     29:  845. 
Statutes.     29 :  845. 
By-laws.     18:  584;   29:  845. 
Form  of  proxy.     29:  846. 
When  and  for  what  purpose  a  proxy  may  be 

used.     29:  847. 
Rejection  of  proxy  by  inspectors.     29:  848. 
Revocation  of  proxy.     29:  848. 
Directors  voting  by  proxy.     29:  848. 
Miscellaneous  matters.    29:  849. 

h.  Promoters. 

§  47.  Generally. 

As  to  Payment  for  Stock  by  Transfer  of 
Property,  see  supra,  VIII. 
§  40. 
Individual     liability     of     corporators.     12: 

366.* 
Liability   of   corporators   as   partners.     11: 

515.* 
Partnership  liability  of  stockholders  in  case 
of  defective  or  illegal  in- 
corporation.    17:  550. 
The  duties  and  liabilities  of  promoters  to 
the    corporation    and    its 
members.     25:  90. 
The  duty  of  the  promoter.     25:  90. 
Sales  by  promoter  to  corporation.     25: 

90. 
Commissions,    profits    on   options,   and 
profits  on  property  bought 
for   the   corporation.    25: 
92. 
Liability  to  corporation.     25:  94. 

Liability  to  subscribers.     25:  95. 
Duty  to  bondholders.     25 :  99. 
Character  of  promoter's  liability.     25: 

99. 
Effect  of  promoter's  fraud  upon  corpo- 
ration's right  against  sub- 
scriber.    25:  100. 
Feigned  subscriptions.     25:  101. 
Waiver  of  fraud.     25:  102. 
How  suit  should  be  brought.     25:  102. 
Liability    of   corporations    on    contracts    of 
promoters.     26:  544. 
CasQS    recognizing    liability.     26:  544. 
Modification  of  the  doctrine  of  liability. 

26:  545. 
Denial  of  liability.     26:  545. 
Statutory   liability.     26:  546. 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


817 


Apparent  exceptions   to  the  rule.     26: 

546. 
Limits   of   the   exception.     26:  546. 
Services    rendered    after    incorporation. 

26:  547. 
Ratification.     26:  548. 
Means  of  ratification.     26:  548. 
Adoption.     26:  549. 
Receiving  benefit.     26:  550. 
Fraud.     26:551. 
Becoming  party.     26:  551. 
Enforcing.     26:  551. 
Question  for  jury.     26:  551. 
Relations  and  rights  of  syndicate  members. 

40:  216. 

i.  Dissolution;     winding-up. 
I.  In  general.  ^ 

§  48.  Generally. 

As  to  Forfeiture  of  Charter  or  Franchise, 
see  supra,  VIII.  §  8. 

As  to  Liability  of  Stockholders,  see  supra, 
VIII.  §§  35-43. 

Equity  jurisdiction  as  to.     9:  651.* 

For  what  causes  may  corporation  be  dis- 
solved.    9:33.* 

What  works  a  dissolution.  2:  549;*  8:  498,* 
858;*  9:33,*  274.* 

Effect  of  insolvency  to  work  a  dissolution. 
2:  256.* 

Dissolution  of  benefit  associations.     2:  550.* 

Expiration  of  charter.     1:  781;*  9:  273.* 

Continued  existence  of  corporation  till  for- 
feiture   declared.     9:  274.* 

Power  to  appoint  receivers  of  corporations 
when  no  other  relief  asked. 
20:  210. 

§  49.  Period  of  existence  of  private  corpo- 
ration. 

In  general.     33:  576. 

Charter  limitations.     33 :  576. 

General  statutes  limiting  existence.  33: 
577. 

Constitutions  limiting  existence.     33:  579. 

Effect  of  expiration  of  time.     33:  579. 

§  50.  Effect  of  insolvency  or  dissolution. 

Effect  of  appointment  of  receiver  or  as- 
signee for  creditors  of  a 
corporation  on  compensa- 
tion of  officers,  agents,  or 
employees  for  unexpired 
term  of  employment.  51: 
146. 

Recovering  for  services  and  expenses  under 
a  running  contract  with  a 
corporation  ended  by  its 
insolvency  and  dissolution. 
69:124. 
Scope  of  note.  69:  124. 
Breaches  of  contracts  in  general.     69: 

125. 
The  measure  of  damages  in  such  cases. 

69:  126. 
How    corporations    are    dissolved.     69: 

128. 
When  dissolution  is  not  effected.     69: 

129. 
Tlie  earlier  common-law  doctrine  con- 
cerning the   effect  of  dis- 
solution.    69:  130. 
L.RA.  Dig.— 52. 


Comment   and   criticism   concerning  it. 

69:  132. 
The   trust    fund,   or   "American,"    doc- 
trine.    69:  134. 
The  effects  of  corporate  dissolution  ac- 
cording to  modern  views. 
69:  137. 
Civil  death.     69:  137. 
Upon  litigation.    69:  138. 
Upon    property     and    assets.     69: 

139. 
Upon  debts  and  credits.     69:  141. 
Upon    contracts    in    general.     69: 

142. 
Upon    employment   contracts.     69: 
144. 
With  officers.     69:  144. 
With  superintendents.   69:  145. 
With   agents.    69:  146. 
With  ordinary  employees.   69: 
150. 
Remedies.     69:  151. 

Abstract.     69:  151. 
Concrete.     69:  152. 
Construction    and    effect    of    statutes. 

69:  153. 
Conclusion.     69:  155. 
Effect  of  adjudication  of  insolvency  and  of 
proceedings  for  dissolution 
of     corporation    upon    its 
rights  of  action.     15:  627. 
At  common  law.     15:  627. 
Under  the  statutes.     15:  628. 
Effect    and   validity    of    statutes.     15: 
629. 

2.  Disposition   of  property;     preferences. 

§51.  Generally. 

Unpaid  subscriptions  as  part  of  assets.     5: 

650.* 
Capital  stock  as  a  trust  fund  for  payment 
of    debts.     5:  378,*    649;* 
7;  707.* 
Action  of  one  stockholder  or  creditor  in  be- 
half  of  others.     9:  273.* 
What  classes  of  employees  are  entitled  to  a 
preference  out  of  assets  of 
insolvent  corporation.    18: 
306. 
Injunction  against  judgments  confessed  by, 

30:  240. 
Distribution   of   assets   of   insolvent  insur- 
ance company.     38:  97. 
Preferences   among  creditors   given   by   in- 
solvent corporations.     22: 
802. 
Preferences  prohibited.     22:  804. 
Stockholders  as  preferred  creditors.  22: 

805. 
Directors  and  officers  as  preferred  cred- 
itors.    22 :  806. 
Preferences  bv  legal   proceedings.     22: 

808. 
Remedies.     22:  809. 
English  decisions.     22:  810. 

j.  Foreign  corporations. 

§  52.  Generally. 

As  to  Foreign  Insurance  Company,  see  In- 
surance, IX.  §  3. 


818 


CORPORATIONS,  VIII.  (Ed.  Notes.) 


Taxation  of,  see  Taxes,  VI.  §§  10-17. 
Service  of  Process  upon,  see  Writ  and  Proc- 
ess, IV.  §§  6,  9. 
Law  of  comity  as  to.     8:  2:50  ;•  12:  366.» 
Amenable  to  local  law.     13:  584.* 
Conditions   imposed   upon   right   to  transact 
business  in  state.    8:  236.* 
Regulation  of  business  of,  by  state.    9:  601.* 
Recognition  or  exclusion  of  foreign  corpora- 
tions.    24:  289. 
Right   to   sue.     24:  289. 
Right    of    contract.     24:  290. 
Ownership  of  property.     24:  291. 
Power  to  act  as  trustee,  administrator, 

etc.     24:291. 
Limitations   by   charter   or   statute   of 
state    where   incorporated. 
24:  291. 
Good  faith  of  foreign  corporation.     24: 

291. 
Statutory  exclusion  of,  or  restrictions 
upon,  foreign  corporations. 
24:  292. 
De     facto     foreign     corporations.     24: 

293. 
Designation  of  agent  and  place  of  busi- 
ness.    24:  293. 
License  tax.     24:  293. 
Conditions     against     invoking    Federal 

jurisdiction.     24:  294. 
Remedies   against.     24:  295. 
What   constitutes   "doing   business"   as 
prohibited  by  statute.    24: 
295. 
Estoppel  to  deny  character  or  powers. 
24:297. 
Right  of  foreign  corporation  to  plead  stat- 
ute    of     limitations.     18: 
524. 
Locality  of  jurisdiction  of  state  court  over 
foreign  corporations.     70: 
691. 
§  53,  Exclusion    of    toreign   corporation   as 
interference     witfi     interstate    com- 
merce. 
Generally.     60:  677. 
Telegraph  companies.     24:  311. 
Insurance   companies.     24:  312. 
Packet  company.     24:  312. 
Express  companies.     24:  312. 
Railroad   companies.     24:  312. 
Bridee  company.     24:  313. 
Trading  companies.     24:  313. 
Publishing  companies.     24:  314. 
Loaning  companies.     24:  314. 
§  54.  Effect   of   noncompliance   with   statu- 
tory conditions. 
As  to  Foreign  Insurance  Company,  see  In- 
surance, IX.  §  3. 
Validity  of  contracts  made  by  foreign  cor- 
porations  which  have  not 
complied     with    statutory 
conditions  of  the  right  to 
do    business    in    a    state. 
24:  315. 
Where  a  penalty  is  imposed.     24:  316. 
Mere   prohibition   of  business.     24:  318. 
Contracts  expressly  declared  void.     24: 

320. 
Effect  of  foreclosure.     24:320. 
Estoppel.     24 :  320. 


Right  of  foreign  corporation  to  set  up  non- 
compliance with  con- 
ditions of  doing  business 
in  order  to  defeat  recovery 
against  it.  25:  569. 
§  55-  Right  of,  to  own  real  estate. 
Generally.     24:  322. 

Limitation  by  charter  or  laws  of  tlie  state 
of  incorporation.     24:  324. 
Railroads.     24:  326. 
Telegraphs.     24:  327. 
Interest  in  mines.     24:  327. 
Exercise   of   eminent   domain.     24:  327. 
As  to  mortgages.     24:  328. 
Enforcement  of  restrictions.     24:  329. 
§  56.  Service  of  process  upon;  garnishment 

of. 
What  service  of  process  upon  is  sufficient  to 
constitute  due  process  of 
law.     50:  589. 
Who  may  be  served   with   process  in  suit 
against  a  foreign  corpora- 
tion.    23:  490. 
Service  on  insurance  commissioner  for  for- 
eign company.     23:  499. 
(Jarnishment  of  debt  due  from  foreign  cor- 
poration in  8ta4;e  where  it 
is     engaged    in    business. 
67:214. 
§  57.  Removal  of  cause. 
As  to  Citizenship  of  Corporations  General- 
ly, see  supra,  VIII.  §  2. 
Effect  of  stipulation   against.     24 :  294. 
Suits  removable  by  foreign  corporation.     1: 

65;'   11:  568.* 
Right  to  remove  cause.     1 :  568.* 
Effect   of   state   legislation   to    prevent    re- 
moval   of    cause    by.     3: 
572.* 
§  58.  Right  of  nonresident  to  sue. 
Generally.     70:  513. 

The  right  of  foreigners  to  sue.     70:  514. 
Of  natural  persons.     70:  514. 
Of  foreign  corporations.     70:  514. 
Of  one  foreigner  to  sue  another.     70: 
517. 
The  right  of  foreign  corporations  to  do  busi- 
ness   in    domestic    states. 
70:  519. 
Public   policy.     70:  521. 
The  liability  of  natural  persons  to  suits  in 

foreign  courts.     70:  522. 
The  liability  of  foreign  corporations  to  suit. 
70:  523. 
At  common  law.     70:  523. 

Earlier  doctrine.     70:  523. 
Modem  view.     70:  523. 
By  statute.     70:  525. 
The  effect  of  entering  a  state  by  a  foreign 
corporation.     70:  525. 
In  general.     70:  525. 
Submission  to  judicial  jurisdiction.   70: 
526. 
Tacitly.     70:  526. 
Expressly.     70:  529. 
Acquiring  jurisdiction  over  foreign  corpora- 
tions.    70:530. 
When   they  remain  abroad.     70:  530. 
Wlien    found    within    the    jurisdiction. 

70:  530. 
By  service  of  process.     70:  532. 
lo  general.     70:  532. 


CORPSE,  I.,  II.  a. 


819 


Upon  officers  casually  present.    70: 

532. 
Upon  resident  representatives.    70: 

533. 
Upon  persons  specially  designated. 
70:  535. 
After  leaving  the  jurisdiction.     70:  535. 
Service    out    of    the    jurisdiction.     70: 

535. 
By  appearance  and  consent.     70:  536. 
Judicial    discretion    to    decline   jurisdiction. 
70:  538. 
Generally.     70:  538. 

In    litigation    over    internal    affairs    of 
foreign  corporations.     70: 
539. 
In    suits    by    citizens    of    the    United 
States.     70:  541.  ^ 
Locus  of  the  cause  or  subject  of  acUon.     70: 
543. 
In  general.     70:  543. 
Domestic.     70:  544. 
Foreign.     70:  546. 

Jurisdiction  entertained.     70:  546. 
Jurisdiction    declined.     70:  548. 
Actions  arising  upon  foreign  statutes. 
70:  550. 


CORPSE. 

I.  Municipal  Regulations. 
n.  Private  Rights. 

a.  In  General. 

b.  Custody,   Disposition,  and  Burial, 
in.  Editorial  Notes. 

Damasres  in  Respect  to,  see  Damages,  573- 

577. 
Failure   of   Carrier   to  Forward,  see   Trial, 

307. 


I.  Municipal  Regulations. 

Prohibiting  Burial  within  City  Limits,  see 
Municipal  Corporations,  203,  210. 

Burial  permit. 

1.  The  statutory  duty  of  a  health  officer 
to  issue  burial  permits  upon  certain  con- 
ditions does  not  require  the  issuance  of  such 
permits  to  bury  in  a  cemetery  the  use  of 
which  has  been  forbidden  by  the  municipal- 
ity. La  Societa  Italiana  Di  Mutua  Bene- 
ficienza  v.  San  Francisco,  131  Cal.  169,  63 
Pac.  174,  53:  382 
Directing  removal  after  burial. 

Private  Right  of  Removal,  see  also  infra, 

31-36. 
For  Editorial  Notes,  see  infra,  III. 

2.  The  opening  of  a  grave  in  a  town  ceme- 
tery by  order  of  the  town  officers,  for  the 
purpose  of  removing  a  dead  body  from  a  lot 
which  has  not  been  paid  for  to  anothpr  part 
of  the  cemetery  which  is  free,  is  within  N. 
C.  Acts  1885.  chap.  90,  §  1,  making  it  a 
felony  for  any  person,  without  due  process 
of  law  or  the  consent  of  specified  relatives 
to  open   any   grave   and   remove   any   dead 


body  therefrom.     State  v.  McLean,  121  N. 
C.  589,  28  S.  E.  140,  42:  721 

3.  Municipal  officers  who  direct  the  open- 
ing of  a  grave  in  the  town  cemetery,  and 
the  removal  of  a  dead  body  therefrom  to 
another  part  of  the  cemetery,  cannot  escape 
liability  on  the  ground  that  they  were 
ignorant  of  the  law  and  supposed  that  they 
had  the  right  to  order  such  removal,  under 
i>.  C.  Acts  1885,  chap.  90,  §  1,  making  it  a 
felony  for  any  person,  without  due  process 
of  law  or  the  consent  of  specified  relatives, 
to  open  any  grave  and  remove  a  dead  body 
therefrom.  •  Id. 

4.  The  mayor  and  commissioners  of  a 
town  who  direct  the  removal  from  a  town 
cemetery  of  bodies  buried  in  certain  lots 
which  have  not  been  paid  for,  to  the  free 
portion  of  the  cemetery,  within  a  specified 
time  unless  the  lots  are  paid  for  within 
such  time,  cannot  escape  liability  under  N. 
C.  Acts  1885,  chap.  90,  §  1,  making  it  a 
felony  for  any  person,  without  due  process 
oT  law  or  the  consent  of  specified  relatives, 
to  open  any  grave  to  remove  a  dead  body 
therefrom,  on  the  ground  that  they  are 
acting  in  their  official  capacity.  Id. 

5.  The  mayor  of  a  town  who  puts  the 
vote  and  declares  the  result  on  a  resolution 
that  the  secretary  of  the  board  of  town 
commissioners  notify  parties  who  have  paid 
nothing  for  burial  lots  in  the  town  ceme- 
tery that  unless  they  pay  within  a  specified 
time  the  bodies  buried  in  such  lots  will  be 
removed  to  the  free  part  of  the  cemetery, 
and  who,  on  being  asked  as  to  the  legal 
right  to  remove  such  bodies,  said,  "The  way 
is  open.  Go  ahead  and  remove  them," — is 
liable  under  N.  C.  Code,  §  977,  for  counsel- 
ing, procuring,  and  commanding  an  act 
which,  by  N.  C.  Acts  1885,  chap.  90,  §  1,  is 
made  a  felony.  Id. 


IT.  Private  Rights. 

a.  In  General. 

Measure  of  Carrier's  Liability   for  Failure 
to  Forward,  see  Damages,  240. 

Autopsy. 

For  Editorial  Notes,  see  infra,  ITL 

6.  A  coroner  may  lawfully  order  a  post 
mortem  examination  without  the  consent  of 
the  family  of  the  deceased,  where  death  has 
resulted  from  an  injury  which  seems  to  him 
insufficient  alone  to  produce  death.  Young 
V.  College  of  Physicians  &  S.  81  Md.  358,  32 
Atl.  177,  31 :  540 

7.  A  post  mortem  examination  made  by 
a  medical  examiner  in  the  exercise  of  his 
duty,  when  required  by  a  coroner,  does  not 
render  him  liable  for  mutilating  the  body 
without  the  consent  of  the  family  of  the  de- 
ceased, if  the  work  was  done  with  ordinary 
decency  and  without  wantonly  disfiguring 
the  body.  Id. 

8.  An  action  against  a  hospital  for  an  au- 
topsy performed  upon  the  dead  body  of  a 
child  without  the  consent  of  the  father,  who 
was  the  natural  guardian  and  who  intrusted 


820 


CORPSE,  n.  b. 


the  child  to  the  hospital  for  treatment,  does 
not  fail  on  the  ground  that  there  is  no  right 
of  property  in  a  dead  body.  Burney  v.  Chil- 
dren's Hospital,  169  Mass.  57,  47  N.  E.  401, 

38:  413 
Unauthorized  sale  of. 
Attempt    to    Sell    as    a    Misdemeanor,    see 

Criminal  Law,  34. 
Indictment  for,  see  Indictment,  etc.,  49. 

9.  An  unauthorized  sale  of  the  dead 
body  of  a  human  being  for  gain  and  profit 
is  a  common-law  misdemeanor  of  high 
grade  and  malum  in  se.  Thompson  v. 
State,  105  Tenn.  177,  58  S.  W.  213,  51:  883 
Mutilation  of. 

Damages  for,  see  Damages,  673,  574. 
Evidence  as  to,  see  Evidence,  1951. 
Liability  for  Failure  of  Hospital  to  Deliver 
Amputated  Portions,  see  Hospitals,  7. 

10.  A  right  of  action  exists  against  one 
who,  on  being  granted  permission  to  ex- 
amine the  stomach  of  a  corpse,  removes  it 
from  the  body,  and  refuses  to  return  it,  ao 
that  the  body  has  to  be  buried  in  a  mutilat- 
ed condition.  Koerber  v.  Patek,  123  Wis. 
453,  102  N.  W.  40,  68:  956 

11.  The  only  child  of  a  widow  has  a  right 
of  action  for  wilful  mutilation  of  her  corpse. 

Id. 

12.  For  the  unlawful  mutilation  of  a  dead 
body  an  action  for  damages  will  lie  in  favor 
of  the  widow  of  the  aeceased.  Larson  v. 
Chase,  47  Minn.  307,  50  N.  W.  238,        14:  85 

b.  Custody,  Disposition,  and  Burial. 

Exemplary  Damages  for  Interference  with 

Burial  of,  see  Damages,  30. 
Damages  for  Removing  from  Burial  Lot,  see 

Damages,  415. 
Replevin   for,  see  Replevin,   16. 
For  Editorial  Notes,  see  infra.  III. 

13.  An  unlawful  and  unwarranted  inter- 
ference with  the  exercise  of  right  of  burial 
by  the  proper  relatives  is  a  tort  which  gives 
them  a  cause  of  action  against  the  wrong- 
doer. Wright  V.  Hollywood  Cemeterv 
Corp.  112  Ga.  884,  38  S.  E.  94,  52:  621 

14.  Procuring  at  one's  own  expense  the 
return  of  a  corpse  which  he  had  contracted 
with  the  next  of  kin  to  keep  safely  until  a 
convenient  time  for  burial,  but  which  he  had 
negligently  permitted  to  go  into  the  posses- 
sion of  a  third  person,  will  not  prevent  a 
recovery  by  the  next  of  kin  of  such  dam- 
ages as  they  may  have  suffered  by  reason 
of  such  negligence,  unless  they  expressly 
agreed  that  such  return  would  be  accepted 
in  full  satisfaction  of  the  cause  of  action 
arising  therefrom.  Renihan  v.  Wright,  12.1 
Ind.  536,  25  X.  E.  822,  '  9:  514 
Who  entitled   to. 

Parties    to    Action    for    Interference    with 
Rieht  of  Burial,  see  Parties,  149. 

15.  The  courts  of  Indiana  possess  the 
power  to  enforce  the  ri?ht  of  a  father  and 
mother  to  the  body  of  their  deceased  child, 
and  to  protect  them  in  the  exorcise  of  the 
right  of  burial:  and  they  also  possess  power 
to  assess  such  damages  as  may  accrue  to 
the  parents  on  account  of  being  deprived  of 


such  rights.     Renihan  v.  Wright,   125  Ind. 
536,  25  N.  E.  822,  9:  514 

16.  A  grandmother  with  whom  a  child 
without  living  parents  resided  has  the  legal 
right  to  cause  the  body  of  the  child  to  be 
buried  in  a  lot  where  there  is  a  right  of 
sepulture  for  the  child,  especially  when  she 
acts  with  the  participation  of  a  minor 
brother  of  the  decedent,  who  is  the  nearest 
of  kin  living  or  present  at  the  place. 
Wright  V.  Hollywood  Cemetery  Corp.  112 
Ga.  884,  38  S.  E.  94,  52:  621 

17.  The  primary  right  to  care  for  and 
bury  the  body  of  a  decedent  rests  with 
the  surviving  spouse.  Koerber  v.  Patek, 
123  Wis.  453,  102  N.  W.  40,  68:  956 

18.  The  disposal  of  the  body  of  a  person 
who  has  not  made  any  testamentary  pro- 
vision therefor  cannot  be  taken  away  from 
his  widow  and  given  to  a  stranger  to  his 
blood.  O'Donnell  v.  Slack,  123  Cal.  285,  55 
Pac.  906,  43:388 

19.  A  widow  has  the  right  to  control  the 
burial  of  her  husband  in  preference  to  the 
next  of  kin  (here  the  father),  and  may  re- 
move the  body  from  the  place  where  it  was 
buried,  without  her  consent,  by  the  next  of 
kin.  Hackett  v.  Hackett,  18  R.  I.  155,  26 
Atl.  42,  ♦  19:  558 

20.  A  widow  having  by  statute  the  pri- 
mary right  to  administer  upon  the  estate 
of  her  intestate  husband  has  a  right  to 
control  the  interment  of  his  body,  and  a 
waiver  of  the  right  to  administer  will  not 
include  a  waiver  of  such  right  of  control, 
unless  it  is  made  to  do  so  expressly.  Petti- 
grew  V.  Pettigrew,  207  Pa.  313,  56  Atl. 
878,  64:  179 

21.  The  right  to  the  possession  of  a  dead 
body  for  preservation  and  burial  belongs,  in 
the  absence  of  any  testamentary  disposition, 
to  the  surviving  husband  or  wife  or  next  of 
kin;  and  the  right  of  the  surviving  wife, 
if  livincr  with  her  husband  at  the  time  of 
his  death,  is  paramount  to  that  of  the  next 
of  kin.  Larson  v.  Chase,  47  Minn.  307,  50 
N.  W.  238,  14:  85 

22.  A  legal  right  to  bury  a  corpse,  which 
the  courts  will  protect,  vests  in  the  nearest 
relative  of  the  decedent  so  situated  as  to  be 
able  and  willing  to  perform  that  duty. 
Koerber  v.  Patek,  123  Wis.  453,  102  N.  W. 
40,  68:  956 

23.  The  fact  that  a  statutory  provision 
imposing,  under  penalty,  the  duty  of  bury- 
ing a  dead  body  upon  the  next  of  kin  of 
decedent,  and  giving  him  the  right  of  pos- 
session for  that  purpose,  is  found  in  the 
penal  code,  does  not  prevent  its  having  force 
in  a  civil  action  to  establish  the  risrhts  of 
such  next  of  kin  to  possession  of  the  body 
for  purposes  of  burial.  Enos  v.  Snyder,  131 
Cal.  OS,  63  Pac.  170,  53:  221 

24.  The  riirht  to  the  custody  and  to  de- 
ciile  upon  the  final  place  of  burial  of  the 
I'f  <lv  of  a  deceased  unmarried  person  resides, 
orlinarily,  in  his  next  of  kin;  and  this  right 
will  not  be  treated  as  having  been  waived 
or  relinqiiished,  except  upon  clear  and  satis- 
factory evidence  of  conduct  indicative  of  a 
free  and  vohmtary  intent    and    purpose    to 


CORPSE,  III.— CORRUPTION. 


621 


that  end.  McEntee  v.  Bonacum,  66  Neb. 
651.  92  N.  W.  633,  60:  440 

25.  An  executor  or  administrator  as  such 
has  no  right  to  the  possession  of  the  body 
of  the  testator  or  intestate  for  purposes  of 
burial.  Enos  v.  Snyder,  131  Cal.  68,  63 
Pac.  170,  53:  221 

2(5.  The  right  to  the  custody  of  a  corpse, 
and  the  right  to  superintend  its  burial,  do 
not  belong  to  the  executor  or  administrator, 
but  to  the  next  of  kin.  Renihan  v.  Wright, 
125  Ind.  536,  25  N.  E.  822,  9:  514 

27.  Neither  the  court  in  probate  nor  the 
personal  representative  has  any  right  to  the 
body  of  a  deceased  person  who  has  made  no 
testamentary  provision  on  the  subject,  nor 
any  right  to  control  the  manner  of  dis- 
posing of  the  remains,  or  to  dictate  the 
place  of  interment.  O'Donnell  v.  Slack,  123 
Cal.  285,  55  Pac.  906,  43:  388 
Person's  own  rights  as  to. 

28.  A  person's  expressed  wish  as  to  the 
place  of  burial  must  be  carried  out  as  far 
as  possible.  Thompson  v.  Deeds,  93  Iowa, 
228,   61    N.   W.   842,  35:  56 

29.  The  direction  of  a  person  as  to  the 
disposal  of  his  body  after  death  is  en- 
titled to  respectful  consideration  when  the 
question  comes  before  the  court,  whether  it 
is  controlling  or  not.  Pettigi-ew  v.  Petti- 
grew,  207  Pa.  313,  56  Atl.  878,  64:  179 

30.  One  cannot  by  will  confer  any  rights 
as  to  the  disposition  of  his  dead  body. 
Enos  y.  Snyder,  131  Cal.  68,  63  Pac.  170, 

53:221 
Right  to  remove  after  burial. 
Removal  by  Municipal  Order,  see  supra,  2-5. 
Burden   of   Proving  Intent   on   Prosecution 

for  Removal,  see  Evidence,  359. 
For  Editorial  Notes,  see  infra.  III.  • 

31.  There  is  no  universal  rule  for  gov- 
erning the  right  to  remove  the  remains  of  a 
deceased  person  after  interment,  but  each 
case  must  be  considered  in  equity  on  its 
own  merits,  having  due  regard  to  the 
interests  of  the  public,  the  wishes  of  deced- 
ent, and  the  rights  and  feelings  of  those 
entitled  to  be  heard  by  reason  of  relation- 
ship or  association.  Pettigrewv.  Pettigrew, 
207  Pa.  313,  56  Atl.  878,  64:  179 

32.  A  widow  should  be  permitted  to  re- 
move the  body  of  her  deceased  husband 
from  the  lot  of  his  father,  where  she  had 
consented  to  its  burial,  in  order  to  place  it 
upon  a  lot  purchased  by  her  for  that  pur- 
pose beside  his  only  child,  who  desired  it 
to  be  done,  where  the  child  and  widow 
could  not,  for  lack  of  room,  be  buried 
where  the  father  was,  and  family  hostility 
would  probably  prevent  such  course  if  it 
was  physically  possible.  Id. 

33.  A  widow's  removal  of  her  husband's 
body  from  a  cemetery  lot  owned  by  his 
daughter,  in  which  he  was  buried  by  his  own 
request,  may  be  enjoined  by  the  daughter  if 
there  is  no  reason  for  the  removal  except 
their  disagreement  respecting  a  monument 
and  the  care  of  the  grav<*.  Thompson  v. 
Deeds,  93  Iowa,  228,  61  N.  W.  842,     35:  56 

34.  The  duty  of  an  executor  or  adminis- 
trator terminates  with  the  first  interment 
of  the  body   of  the  testator  or  intestate. 


and  he  has  no  right  to  a  voice  on  the  ques- 
tion of  the  removal  of  the  remains.  Petti- 
grew V.  Pettigrew,  207  Pa.  313,  56  Atl.  878, 

64:  179 

35.  A  man  who  has  consented  to  the 
burial  of  the  body  of  his  deceased  wife 
in  the  lot  of  another  cannot,  without  the 
cansent  of  the  lot  owner,  enter  upon  the  lot 
and  remove  the  body.  Pulsifer  v.  Douglass, 
94  Me.  556.  48  Atl.  118,  53:  238 

36.  The  owner  of  a  tomb  to  which  re- 
mains of  the  dead  have  been  transferred 
from  the  places  of  sepulture  first  selected 
by  the  surviving  relatives,  and  in  which 
they  have  been  deposited  under  his  assur- 
ance, accepted  by  the  relatives  and  on  the 
faith  of  which  they  permitted  the  transfer, 
that  the  remains  should  rest  forever  in  the 
tomb, — has  no  right  to  cause  their  removal. 
Choppin  V.  Dauphin,  48  La.  Ann.  1217,  20 
So.  681,  33:  133 


in.  Editorial  Notes. 

Control  and  disposition  of.     14:  85. 
Power   of   coroner   to    order    post   mortem. 

31 :  540. 
Prescriptive  right  with  respect  to  burial  of 

dead.     53:895. 
Character  of  estate  or  property  of  owner  in 

burial  lot.     67:  118. 
Liability   for  disinterment  of  dead   bodies, 
and  actions  relating  there- 
to.    42:721. 
Civil  actions.     42:  722. 
In  general.     42:  722. 
Actions  maintained.     42:  724, 
Equitable  relief.     42:  725. 
Damages.     42 :  729. 
Disinterment  by  the  authorities  or 
for    public    purposes.     42: 
730. 
English  authorities.     42:  731. 
Criminal  actions.     42:  733. 
In  general.     42:  733. 
Under  state  statutes.     42:  733. 


CORPUS  DELICTI. 


Proof  of,  see  Evidence,  2360,  2378. 

Editorial  Notes. 
Proof  of,  in  criminal  case.     68:  33. 


CORROBORATION. 


Of  Accomplice,  see  Evidence,  2372-2376. 
Of  Witness,  see  Witnesses,  188-200. 


CORRUPTION. 


In  Passage  of  Resolution  by  City  Council, 
see  Action  or  Suit,  42. 


822 


CORRUPT  PRACTICES  ACT— COSTS  AND  FEES,  I. 


CORRUPT  PRACTICES  ACT. 

Special  Proceeding  under,  see  Quo  Warranto, 

2. 
Strict  Construction  of,  see  Statutes,  508. 
See  also  Elections,  II.  d;    Officers,  9. 


COSMETICS. 

Editorial  Notes. 


Misrepresentation  as  to,  as  affecting  valid- 
ity of  trademark.     19:  56. 


COSTS  AND  FEES. 


I.  Right  to  Recover;   Liability  for. 
II.  Amount;    Practice;   Collection. 
III.  Editorial  Notes. 

On  Appeal,  see  Appeal  and  Error,  VIII.  d. 

Right  to  Appeal  from  Allowance  of,  see 
Appeal  and  Error,  33,  34. 

Review  of  Question  of,  on  Appeal,  see  Ap- 
peal and   Error,  386,  523. 

Waiver  of  Error  as  to  Item  of,  see  Appeal 
and  Error,  678. 

Of  Arbitration,  Payment  from  Deposit 
]\Iade  to  Secure  Award,  see  Arbitration, 
10. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  11.  a,  6. 

Due  Process  in  Denying  Right  to  Tax  Costs 
of  Struck  Jury,  see  Constitutional  Law, 
805. 

Effect  of  Order  to  Pay,  see  Criminal  Law, 
242. 

Evidence  of,  to  Show  Value,  see  Evidence, 
1817. 

As  Condition  of  Permitting  Filing  of  An- 
swer, see  Pleading,  160. 

Against  Junior  Appropriators,  see  Waters, 
382. 


I.  Right    to   Recover;    Liability   for. 

1.  A  statute  giving  a  right  to  costs  in 
any  civil  action  will  include  a  proceeding 
by  the  poor  authorities,  under  the  provi- 
sions of  a  statute,  to  compel  a  child  to  sup- 
port its  indifront  parent.  Condon  v.  Pom- 
roy-Cirace,  73  Conn.  607,  48  Atl.  7.56,  .53:  606 

2.  That  a  stockholder  suing  to  enforce 
a  fancied  ritrht  of  a  corporation  proceeded 
in  good  faitli  is  no  ground  for  relieving 
him  from  payment  of  costs  in  case  he  is 
U7isufrpssful.  Piotseh  v.  Milbrath,  123  Wis. 
647.   102  N.   W.  342,  08:  045 

3.  Failure  to  perfect  judgment  witliin 
sixty  days  after  the  entry  of  the  verdict 
will  Drovont  tlio  snccossful  party  from  re- 
coverin'j'  costs  iitnlcr  Sanb.  &  B.  (Wis.)  Ann. 
Stat.  §  28')4</,  iilllK>ugli  he  procured  tlic  tax 
ation  of  the  costs  before  that  time  and  an 
unsuccessful  motion  to  set  aside  the  verdict 
and  obtain  a  new  trial  was  made.     Milwau- 


kee Masons'  &  B.  Asso.  v.  Niezerowski,  95 
Wis.  129,  70  N.  W.  166,  37:  127 

4.  One  who  attempts  to  obtain  a  depo- 
sition, and  begins  to  take  it,  but  does  not 
get  it  completed  because  the  witness  refused 
to  go  on  with, the  testimony,  is  not  charge- 
able with  costs  under  N.  H.  Pub.  Stat,  chap, 
225,  §  12,  on  the  ground  that  he  neglected 
or  refused  to  take  a  deposition  after  giving 
notice  of  it,  where  he  in  fact  desired  to  have 
the  deposition  completed,  but  understood 
that  he  could  not  compel  the  witness  to 
proceed,  while  the  other  party  was  present 
and  had  the  same  means  and  opportunity 
of  enforcing  the  examination.  Ott  v.  Hen- 
tall,  70  N.  H.  231,  47  Atl.  80,  51:  226 
On  dismissal. 

5.  Neither  party  recovers  costs  when  a 
proceeding  is  dismissed,  without  motion,  for 
want  of  jurisdiction.  Re  Dickson,  49  C.  C. 
A.  574,  111  Fed.  726,  55:  349 

6.  Defendant  should  be  required  to  pay 
the  costs  upon  dismissal  of  a  suit  to  en- 
join the  enforcement  of  an  ordinance  void 
for  unreasonableness,  in  consequence  of  its 
repeal  pending  suit,  although  plaintiff  had 
erroneously  claimed  the  unconstitutionality 
of  the  statute  authorizing  it.  Cicero  Lum- 
ber Co.  V.  Cicero,  176  111.  9,  51  N.  E.  758, 

42:  696 
On  disbarment. 

7.  Persons  who  institute  proceedings  to 
disbar  an  attorney  are  entitled  to  their 
costs  as  against  him  in  case  the  proceeding 
is  successful.  Re  Kirby,  10  S.  D.  322,  73 
N.  W.  92,  10  S.  D.  414,  73  N.  W.  907,  39:  856 
In  suit  for  injunction. 

8.  Costs  may  be  awarded  against  one  who 
has  constructed  a  ditch  with  the  avowed 
purpose  -of  diverting  a  certain  quantity  of 
water  from  a  stream,  in  an  action  to  en- 
join him  from  so  doing,  although  at  the 
time  of  trial  he  has  not  done  so  and  in  fact 
has  caused  no  injury  to  the  complaining 
party.  Jones  v.  Conn,  39  Or.  30,  64  Pac. 
855,  65  Pac.  1068,  54:  630 

9.  The  costs  of  a  suit  by  a  taxpayer,  by 
which  the  execution  by  the  city  of  an  illegal 
contract  is  enjoined,  are  taxable  against 
both  the  city  and  contractor,  if  both  are 
made  defendants.  Chicago  v.  McCoy,  136 
Til.  344,  26  N.  E.  363,  II:  413 
In  partition. 

See  also  infra,  47. 

For  Editorial  Notes,  see  infra,  III.  §   I. 

10.  The  matter  of  costs  in  partition  pro- 
ceedings is  peculiarly  within  the  discretion 
01  the  trial  court;  and  there  is  no  abuse  of 
such  discretion  in  imposing  a  portion  of  the 
costs  upon  a  grantee  of  the  interest  of  one 
of  the  cotenants  in  proportion  to  the  part 
sot  off  to  him.  Young  v.  Edwards,  33  S.  C. 
404,  11  S.  E.  1066,  10:  55 

11.  Where  a  bill  in  partition  was  filed 
sensonably,  and  the  title  of  one  of  the  de- 
fondnnts,  who  was  adjudged  to  be  entitled 
to  the  entire  land,  could  only  have  been  es- 
tnblished  by  suit,  the  complainant  may  be 
allowed  costs.  Van  Tine  v.  Van  Tine  (N. 
.).  Ch.)   (Not  to  be  Rep.),  15  Atl.  240,     1:  155 

12.  The  intervener  in  a  partition  suit  who 
withdraws   his   petition  may  be  decreed   to 


COSTS  AND  PEES,  I. 


pay  the  costs  incurred  by  him,  and  the  costs 
of  suit  to  establish  the  title  may  be  de- 
creed to  plaintiff,  while  the  costs  of  the  par- 
tition should  be  equally  divided  among  the 
parties  to  whom  the  land  is  decreed.  Askey 
V.  Williams,  74  Tex.  294,  11  S.  W.  1101, 

5:  176 
On  foreclosure. 

13.  Ck)sts  in  favor  of  plaintiff  on  a  note 
and  mortgage  which  are  invalid  cannot  be 
ordered  paid  from  the  proceeds  on  fore- 
closure of  another  mortgage  on  the  same 
property,  in  the  same  case.  Sheldon  v. 
Pruessner,  52  Kan.  579,  35  Pac.  201,    22:  709 

14.  The  costs  of  a  resale  of  railroad  prop- 
erty after  foreclosure  cannot  be  allowed  to 
a  judgment  creditor  who  was  not  made  a 
party  to  the  foreclosure  suit,  if  h<)thing  re- 
mains for  him  out  of  the  proceeds  after 
paying  the  superior  liens,  in61uding  those 
set  up  in  the  foreclosure  suit.  Stewart  v. 
Wheeling  &  L.  E.  R.  Co.  53  Ohio  St.  151,  41 
N.  E.  247,  29:  438 
In  condemnation  proceeding. 

15.  The  costs  of  proceedings  to  condemn 
land  may  be  put  upon  the  party  seeking  to 
condemn,  under  Gal.  Code.  Civ.  Proc.  §  1255, 
giving  discretion  as  to  costs,  where  the  case 
has  not  been  properly  opened  and  proved, 
and  a  reversal  therefor  is  required.  San 
Diego  Land  &  T.  Co.  v.  Neale,  88  Cal.  50, 
25  Pac.  977,  11:604 
Against  trustee  or  personal  representative. 
See  also  infra,  21,  29;  Executors  and  Ad- 
ministrators, 78. 

For  Editorial  Notes,  see  infra,  III.  §  1. 

16.  A  trustee  under  a  will  who  files  a 
bill  for  the  construction  of  certain  clauses 
in  the  will  will  not  be  allowed  his  costs  out 
of  the  trust  fund,  if  the  prayer  of  a  cross 
bill  by  the  beneficiaries  that  their  action  in 
removing  him,  which,  under  the  will,  they 
had  the  power  to  do,  and  he  had  no  power 
to  resist,  be  ratified,  is  granted,  and  no 
construction  of  the  will  made.  May  v.  May, 
5  App.  D.  C.  552,  41:767 

17.  An  administrator  should  be  personally 
charged  with  costs  by  the  judgment  against 
him,  where  he  fails  in  an  action  brought  by 
him  under  a  statute  providing  that  "in  all 
civil  causes  at  law  the  party  prevailing 
shall  recover  costs."  Lynch  v.  Webster,  17 
R.  L  513,  23  Atl.  27,  14:  696 
Municipal  liability. 

18.  A  city  is  not  liable  for  costs  in  a 
suit  to  enforce  an  ordinance.  Carrollton  v. 
Bazzctte,  159  111.  284,  42  N.  E.  837,  31:  522 
Criminal  and  penal  cases. 

For  Editorial  Notes,  see  infra,  TIT.  §  1. 

19.  A  defendant  should  not  be  relieved 
from  the  payment  of  costs  when  found 
guilty  of  violating  a  penal  statute,  without 
some  reason  for  so  doing.  Welsh  v.  State, 
126  Tnd.  71,  25  N.  E.  883,  9:  664 

20.  A  statute  which  authorizes  the  ques- 
tion of  the  good  faith  of  the  prosecuting 
witness  in  instituting  a  prosecution  to  be 
tried  and  determined  at  the  same  time  that 
the  defendant  is  tried,  and  the  taxation  of 
costs  against  him  in  case  it  is  found  that 
in  filing  the  information  he  acted  malicious- 


ly or  without  probable  cause,  is  unconsti- 
tutional and  void.  Rickley  v.  State,  65 
Neb.  841,  91  N.  W.  867,  61:  489 

Suing  as  poor  person. 
For  Editorial  Notes,  see  infra.  III.  §  1. 

21.  To  permit  an  administrator  to  bring 
an  action  in  forma  pauperis  for  the  alleged 
negligent  killing  of  his  intestate,  he  need 
not  show  personal  inability  to  give  the  re- 
quired bond,  or  make  the  necessary  deposit, 
but  it  is  sufficient  if  he  shows  such  in- 
ability on  behalf  of  the  estate  and  those 
for  whose  benefit  the  suit  is  really  brought. 
Christian  v.  Atlantic  &  N.  C.  R.  Co.  136  N. 
C.  321,  48  S.  E.  743,  68:  418 
Security  for. 

22.  An  independent  foreign  government  is 
"a  person  residing  without  the  state,"  with- 
in the  meaning  of  N.  Y.  Code  Civ.  Proc.  § 
3268,  requiring  security  for  costs  from  such 
persons.  Republic  of  Honduras  v.  Soto,  112 
N.  Y.  310,  19  N.  E.  845,  2:  642 

23.  When  a  deposit  of  money,  as  security 
for  costs,  has  once  been  made,  the  court 
has  no  authority,  under  N.  Y.  Code  Civ. 
Proc.  §  2376,  to  require  any  additional  se- 
curity. Id. 

24.  The  relator  in  proceedings  in  the  na- 
ture of  quo  warranto  will  not  be  required 
to  give  additional  security  for  costs  on  the 
ground  that  the  security  given  is  insolvent 
where  the  evidence  in  support  of  the  motion 
only  shows  that  according  to  the  tax  records 
of  the  county  the  security  has  only  $320  of 
taxable  property.  Capital  City  Water  Co. 
V.  State  ex  rel.  Macdonald,  105  Ala.  406,  18 
So.  62,  29:  743 

^25.  An  irregularity  in  commencing  a  pro- 
ceeding in  the  nature  of  qoio  warranto  for 
the  dissolution  of  a  corporation  before  giv- 
ing security  for  costs  is  waived,  where  such 
security  is  subsequently  given,  and  the  re- 
spondent files  a  demurrer  and  motion  to 
quash  and  afterwards  its  pleas,  and  no  mo- 
tion to  dismiss  on  that  ground  is  made 
until  nearly  a  year  after  the  commencement 
of  the  action,  when  the  case  comes  on  for 
hearing.  Id. 

Out  of  fund  or  estate. 

Sale  of  Decedent's  Lands  to  Pay,  see  Exec- 
utors and  Administrators,  72. 
See  also  supra,  16;    infra,  48,  50-52. 

26.  Costs  will  not  be  imposed  upon  the 
estate  where  the  friends  of  an  infant  pre- 
sent on  her  behalf  an  unfounded  claim  to 
share  in  the  estate  of  a  deceased  person,  so 
that  the  executor  is  compelled  to  file  a  bill 
to  determine  her  rights.  Van  Derlvn  v. 
Mack,  137  Mich.  146,  iOO  N.  W.  278,    66:  437 

27.  A  claim  by  the  Physio-Medical  Insti- 
tute to  a  lesracy  given  to  the  "Physio-Medi- 
cal College"  has  not  suflRcient  merit  to  war- 
rant allowance  of  claimaTit's  costs  out  of  the 
fund,  if  the  evidence  plainly  shows  that 
claimant  was  not  the  legatee  intended. 
Stratton  v.  Physio-Medical  Institute,  149 
Mass.  505,  21  N.  E.  874,  5:  33 

28.  Taxable  costs  of  all  parties  in  a  suit 
for  the  oonstmetioTj  of  a  will  may  be  or- 
dered out  af  the  funds  •f  an  PHtnte  before 
distribution.  Powers  v.  Jeudevine,  61  Vt. 
587,  18  AtL  778,  7:  517 


834 


COSTS  AND  FEES,  U. 


29.  Costs  of  a  contest  on  the  accounting 
of  a  husband's  executors,  to  determine 
whether  or  not  a  husband  and  wife  were 
tenants  by  the  entirety  in  a  bond  and  mort- 
gage for  moneys  of  which  each  contributed 
part,  should  be  paid  out  of  the  estate  where 
the  question  is  new  and  the  executors  have 
acted  in  good  faith.  Re  Albrecht,  136  N.  Y. 
91,  32  N.  E.  632,  18:  329 

30.  Costs  out  of  the  estate  will  not  be  al- 
lowed to  one  who  unsuccessfully  contests 
the  right  of  the  administrator  to  retain  a 
distributive  share,  and  apply  it  on  the 
distributee's  indebtedness  to  the  estate. 
Webb  V.  Fuller,  85  Me.  443,  27  Atl.  346, 

22:  177 

31.  The  power  of  the  supreme  court  to  al- 
low a  defeated  appellant  costs  out  of  the 
fund  in  a  suit  for  the  construction  of  a  will 
which  came  to  it  from  the  circuit  court  on 
exceptions  after  an  appeal  from  the  pro- 
bate court  is  limited,  under  Vt.  Rev.  Laws, 
§  2280,  to  the  allowance  of  the  costs  in  that 
court.  Jones  v.  Knappen,  63  Vt.  391,  22 
Atl.  630,  14:  293 

32.  That  the  fund  reached  by  a  general 
creditors'  bill  against  an  insolvent  building 
and  loan  association  is  all  absorbed  by  prior 
claims  not  secured  by  mortgage  or  other 
fixed  lien,  so  that  the  one  who  instigated  it 
will  receive  nothing,  will  not  prevent  the 
allowance  of  a  reasonable  fee  to  his  solicit- 
ors out  of  the  fund,  since  their  work  was 
done  for  the  benefit  of  all  the  distributees. 
Campbell  v.  Provident  Sav.  &  L.  Soc.  (Tenn. 
Ch.)  61  S.  W.  1090,  54:  817 
Effect  of  tender. 

33.  No  interest  or  costs  can  be  recovered 
on  a  judgment  for  the  amount  of  a  tender 
which  has  been  renewed  in  court  with  a 
proflFer  of  judgment,  according  to  the  South 
Carolina  practice.  Wilcox  v.  Richmond  & 
D.  R.  Co.  8  U.  S.  App.  118,  3  C.  C.  A.  73,  52 
Fed.  264,  17:  804 
Amount  of  recovery  as  affecting. 

See  also   supra,  32;    Courts,  288. 

34.  Under  How.  (Mich.)  Stat.  §  4263,  a 
receiver  of  an  insolvent  mutual  insurance 
company  recovering  judgment  against  mem- 
bers on  assessments  made  by  him  against 
them  may  recover  costs,  whatever  the 
amount  of  the  judgment,  although  §  8964 
gives  costs  to  the  defendant  where  the 
judgment  against  him  is  less  than  $100. 
Wardle  v.  Townsend,  75  Mich.  385,  42  N. 
W.  950,  4:  511 


n.  Amount;  Practice;  Collection. 

Refusal  to  Retax,  as  Reversible  Error,  see 

Appeal  and  Error,  854. 
See  also  supra,  3. 
For  Editorial  Notes,  see  infra,  IIL  §§  1,  2. 

35.  A  limitation  of  the  amount  of  costs 
to  $30  when  the  law  determines  their 
amount,  under  Wis.  Rev.  Stat.  §  3918,  subs. 
7,  §  2921,  is  erroneous.  Haves  v.  Douglas 
County,  92  Wis.  429,  65  N.  W.  482,     31:213 

36.  A  rule  of  court  requiring  a  copy  of 
each  pleading  to  be  filed  with  it,  and  allow- 


ing thei-efor  a  fee  of  10  cents  per  hundred 
words,  and  directing  the  same  to  be  taxed 
with  the  costs,  does  not  apply  to  a  petition 
which  consists  of  many  counts  precisely 
alike  with  the  exception  of  dates,  etc.,  as 
to  which  a  copy  of  one  count  with  a  refer- 
ence to  the  others  will  suffice,  so  as  to  al- 
low the  taxing  of  costs  for  a  copy  of  the 
whole  pleading.  Cook  v.  Chicago,  R.  I.  & 
P.  R.  Co.  81  Iowa,  551,  46  N.  W.  1080,  9:  764 
Of  evidence. 
Fees  of  Witness,  see  Witnesses,  V. 

37.  The  cost  of  procuring  evidence  which 
was  proper  to  establish  the  cause  of  action 
on  plaintiff's  original  claim  is  taxable  in 
his  favor,  although  a  portion  of  it. was  in- 
curred in  establishing  liability  on  claims 
assigned  to  plaintiff,  but  which  the  court 
held  were  not  properly  assignable.  John  V. 
Farwell  Co.  .v.  Josephson,  96  Wis.  10,  70 
N.  W.  289,  71  N.  W.  109,  37:  138 
Expense  of  search. 

38.  The  expense  of  an  unofficial  search 
made  by  a  title  insurance  company  is  not 
taxable  as  part  of  the  disbursements  on 
foreclosure  of  a  mortgage,  "according  to  the 
course  and  practice  of  the  court,"  there 
being  no  express  provision  of  law  allowing 
such  item,  although  the  expense  of  an  of- 
ficial search  by  a  county  clerk  can  be  taxed. 
Equitable  L.  Assur.  Soc.  v.  Hughes,  125  N. 
Y.  106,  26  N.  E.  1,  11:280 
For  receiver. 

39.  Directing  that  all  a  receiver's  fees  and 
expenses  should  be  taxed  as  costs  against 
the  unsuccessful  party  to  a  suit,  without 
fixing  his  compensation  and  in  advance  of 
a  hearing  on  difTerent  items  of  his  account, 
is  improper.  Cutter  v.  Pollock,  4  N.  D.  205, 
59  N.  W.  1062,  25:  377 
Extra  allowance. 

Contract  for  Extra  Compensation  to  Expert 
Witness,  see  Witnesses,  214. 

40.  An  extra  allowance  as  part  of  the 
costs  of  the  action  may  be  made  under  N. 
Y.  Code  Civ.  Proc.  §  3253,  in  the  discretion 
of  the  court,  to  a  defendant  against  whom 
nominal  damages  only  are  recovered.  Unit- 
ed Press  V.  New  York  Press  Co.  164  N.  Y. 
406,  58  N,  E.  527,  53:288 

41.  An  extra  allowance  of  costs  may  be 
granted  in  the  discretion  of  the  court,  on 
the  denial  of  an  injunction  against  a  street 
railway  company  to  prevent  the  use  of  a 
particular  system  of  electric  propulsion  over 
a  part  of  its  road,  if  there  is  any  evidence 
in  the  moving  papers  tending  to  establish 
the  value  of  such  use.  Hudson  River 
Teleph.  Co.  v.  Watervliet  Tump.  &  R.  Co. 
135  N.  Y.  393,  32  N.  E.  148,  17:  674 

42.  An  extra  allowance  of  costs  cannot  be 
made  in  a  suit  to  enjoin  a  breach  in  a 
restrictive  covenant  in  a  deed,  where  no 
sum  is  recovered  or  claimed,  and  there  is 
no  allegation,  proof,  or  finding  as  to  the 
value  of  the  subject-matter  involved,  and 
the  statute  provides  that  such  an  allow- 
ance shall  be  based  upon  the  sum  recovered 
or  claimed,  or  the  value  of  the  subject- 
matter  involved.  Kitehing  v.  Brown,  180 
N.  Y.  414,  73  N.  E.  241,  70:  742 

43.  An   extra   allowance   of   costs   is   not 


COSTS    AND  FEES,  II. 


836 


precluded  by  the  fact  that  on  a  former  trial 

of   the   same   case   an   extra  allowance  had 

been  granted  and  the  costs  paid  as  a  con- 
dition of  a  new  trial.     Bolton  v.  Schriever, 

135  X.  Y.  65,  31  N.  E.  1001,  18:  242 

Attorney's  fees. 

As  to  Contract  for  Attorneys'  Fees,  see  At- 
torneys' Fees. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  II.  a,  6. 

Due  Process  of  Law  as  to,  see  Constitutional 
Law,  623,  624. 

To  Successful  Lien  Claimants,  see  Constitu- 
tional Law,   1106. 

Allowance  for,  as  Element  of  Damages,  see 
Damages,  III.  r. 

In  Divorce  Suit,  see  Divorce  and  Separa- 
tion, V.  b. 

In  Action  by  State  to  Recover  Back  Prop- 
erty Escheated,  see  Escheat,  3,  4. 

As  General  Charge  against  Decedent's  Es- 
tate, see  Executors  and  Administrators, 
134. 

As  Necessaries  for  Infants,  see  Infants,  67, 
68. 

Against  Insurance  Company  Delaying  Pay- 
ment, see  Constitutional  Law,  1107. 

Subrogation  of  Insurer  to  Claim  for,  see 
Insurance,  1265. 

Mode  of  Pleading  Foreign  Law  as  to,  see 
Pleading,  83. 

Retrospective  Statute  as  to,'  see  Statutes, 
550. 

Repeal  of  Statute  as  to,  see  Statutes,  567. 

See  also  supra,  32. 

For  Editorial  Notes,  see  infra.  III.  §  3. 

44.  The  fact  that  a  party  signs  his  bill 
pro  se,  where  it  is  not  shown  that  he  was 
not  in  fact  represented  by  other  solicitors, 
does  not  prevent  him  from  claiming  a 
solicitor's  fee  on  the  foreclosure  of  a  mort- 
gage containing  a  provision  for  such  fee. 
Barry  v.  Guild,  126  111.  439,  18  N.  E.  759, 

2:  334 

45.  Attorneys'  fees  allowed  to  a  lien 
claimant  under  Fla.  act  1887,  chap.  3747, 
are  incidental  to  the  lien  claim,  and  en- 
titled to  payment  on  the  same  basis  as  the 
judgment  for  labor  or  material.  Dell 
V.  Marvin,  41  Fla.  221,  26  So.  188,      45:  201 

46.  Separate  bills  of  costs  for  different  de- 
fendants represented  by  different  attorneys, 
and  having  different  interests,  may  be  re- 
covered, including  such  items  as  retaining 
fees,  fees  for  attendance  on  the  trial,  and 
term  fees,  where  separate  services  were 
necessary  and  proper  for  such  defendants. 
Adams  v.  Beloit,  105  Wis.  363,  81  N.  W.  869, 

47;  441 

47.  Attorney's  fees  are  taxable  as  in 
equitable  actions  in  a  proceeding  under  Wis. 
Rev.  Stat.  §  3129,  for  the  trial  of  issues  on 
application  by  a  creditor  in  a  partition 
action,  whether  the  trial  is  by  court  or  by 
jurv.  Von  Osdell  v.  Champion,  89  Wis.  061, 
62  N.  W.  539,  27 :  773 

48.  Attorney's  fees  cannot  be  allowed  to 
unsuccessful  proponents  of  a  will  in  the  con- 
test proceedings,  but  any  allowance  therefor 
must  be  made  out  of  the  estate  in  the 
course  of  administration.  Clark  v.  Turner, 
50  Neb.  290,  69  N.  W.  843,  38:433 


49.  For  successfully  defending  claims  to 
the  assigned  property  by  an  attempted  re- 
scission of  sales,  an  assignee  for  creditors 
may  be  allowed  attorneys'  fees,  although 
the  assignment  is  set  aside  on  a  cross  pe- 
tition by  other  creditors.  Perry  Mason 
Shoe  Co.  V.  Sykes,  72  Miss.  390,  17  So.  171, 

28:  277 

50.  Attorneys'  fees  cannot  be  allowed  out 
of  the  assigned  property  as  against  creditors 
successfully  asserting  liens  thereon,  for  an 
unsuccessful  defense  of  the  assignment  by 
an  assignee  for  creditors,  although  the  as- 
signment is  declared  void,  not  for  actual 
fraud,  but  by  reason  of  failure  to  comply 
with  some  positive  requirement  of  statute 
law,  and  although  the  assignee  is  also  a  re- 
ceiver of  the  court,  since  it  is  not  his  duty 
as  receiver  to  defend  the  assignment.       Id. 

51.  Minority  stockholders  may  compel  the 
corporation  to  pay  actual  and  necessary  ex- 
penses, including  reasonable  attorneys'  fees, 
of  a  successful  suit  by  them  to  recover  cor- 
porate property  which  had  been  wrongfully 
conveyed  by  the  corporate  officers  according 
to  t^e  wishes  of  the  majority  stockholders. 
Grant  v.  Lookout  Mountain  Co.  93  Tenn. 
691,  28   S.   W.   90,  27:  98 

52.  Minority  stockholders  of  a  corpora- 
tion, who,  by  filing  an  equitable  petition 
against  it  and  its  officers,  succeeded  in  en- 
joining it  and  them  from  doing  ultra  vires 
acts  which  would  have  required  the  expend- 
iture of  money  belonging  to  it,  were  not  en- 
titled to  a  judgment  for  their  attorney's 
fees  against  the  corporation,  when  there 
was,  as  a  result  of  the  litigation,  neither  a 
recovery  of  property  for  the  corporation, 
nor  administration  or  distribution  by  the 
court  of  any  fund  brought  into  its  hands 
for  this  purpose,  and  when  the  corporation 
itself  repudiated  the  effort  of  the  plaintiffs 
to  thus  protect  its  interests,  and,  in  defense 
to  their  petition,  stood  squarely  upon  the 
proposition  that  the  acts  in  question  were 
not  ultra  vires,  but  authorized  by  its  char- 
ter. Alexander  v.  Atlanta  &  W.  P.  R.  Co. 
113  Ga.  193,  38  S.  E.  772,  54:  305 
•  53.  Bad  faith  which  will  authorize  at- 
torney's fees  and  damages  is  not  shown  by 
testing  questions  which  are  not  easy  of 
solution  and  have  never  been  adjudicated  in 
the  state.  Massachusetts  Ben.  L.  Asso.  v. 
Robinson,  104  Ga.  256,  30  S.  E.  918,    42:  261 

54.  In  the  absence  of  evidence,  the  court, 
in  fixing  an  attorney's  fee,  must  be  guided 
in  estimating  the  value  of  his  services  by 
the  amount  of  labor  performed  as  indicated 
by  the  record.  Farley  v.  Geisecker,  78  Iowa, 
453,  43  N.  W.  279,  6:  533 
Stay  for  payment. 

For  Editorial  Notes,  see  infra.  III.  §  2. 

55.  Staying  a  second  suit  in  ejectment 
until  plaintiff  pays  the  costs  of  a  former 
unsuccessful  action  does  not  violate  a  con- 
stitutional guaranty  that  for  any  injury  a 
person  shall  have  "a  remedy  by  due  process 
of  law,"  and  right  and  justice  shall  be  ad- 
ministered without  sale,  denial,  or  delay. 
Shear  V.  Box,  92  Ala.  596,  8  So.  792,    11:620 


826 


COSTS  AND  FEES.  Ill —COTENANCY,  II. 


in.  Editorial  Notes. 

§  I.  Generally. 

As  to  payment  in  coin.     29:  596. 

Of  view  by  jury.     42:  393. 

Of  application  for  instructions  in  will  case. 
9:  251.* 

On  withdrawal  of  jurors.     48:  437. 

In  partition.     10:  55.* 

Right  to  tax  amount  paia  to  surety  com- 
pany for  undertaking.  48: 
591. 

Effect,  on  costs,  of  allowance  of  compound 
interest.     29 :  658. 

Effect  of  pardon  on.     15:  395. 

Setting  off  costs  in  bankruptcy  cases.  56: 
65. 

Claims  against  state  for.     42:  41. 

Personal  liability  of  executors  and  adminis- 
trators for.     14:  696. 

Right  of  executor  or  administrator  to  sue, 
defend,  or  appeal  in  forma 
pauperis.     68:  418. 

Liability  for,  of  party  controlling  or  carry- 
ing on  litigation  in  name 
of    another.     62:  618. 

Constitutionality  of  statute  authorizing 
costs  of  prosecution  to  be 
imposed  upon  prosecuting 
witness.     61:489. 

§  2.  Compelling  pasonent  of. 

Stay  until  costs  are  paid.     11:  620.* 

Cruel  punishment  for  failure  to  pay.  35: 
567. 

Imprisonment   for  nonpayment  of.     27:  601. 

Costs  as  debts  within  constitutional  provi- 
sion as  to  imprisonment. 
34:  655. 

Compelling  labor  in  payment  of.     27:  601. 

§  3.  Attorney's  fees. 

Constitutionality  of  provision  for.     14:  586. 

Validity  of  stipulations  for.  1:  640;* 
3:  50;*  7:  445.* 

Effect  of  stipulation  for,  in  bill  or  note,  up- 
on negotiability.  1:547;* 
3:  51.* 

Allowance   of   attorneys'   fees   out   of   fund 
for  attorneys  of  creditors 
who     sue     in     belialf     of 
themselves       and       other 
creditors.     54:  817. 
In  general.     54:  817. 
Suit  to  have  conveyance  set  aside.    54: 
818. 
In  general.     54:  818. 
From  what  part  of  fiind  allowance 
made.     54:  819. 
Suit    for    administration    of    decedent's 
estate.     54:  820. 
In  general.     54:  820. 
From  what  part  of  fund  allowance 

made.     54:  822. 
Where  plaintiff's  debt  not  reached. 
54:  822. 
Suit  for  appointment  of  receiver  and  to 
wind   up   insolvent   corpo- 
ration.    54:  823. 
In  general.     54 :  823. 
From  what  part  of  fund  allowance 

made.     54:  824. 
Where  plaintiff's  debt  not  reached. 
54:  825. 


Suit  to  enforce  stockholder's  liabilitv. 

54:  825. 
Proceedings  in  bankruptcy   cases.     54: 
826. 
In  general.     54:  826. 
Amount  of  fee.     54:  826. 


COTENANCY. 


I.  In  General. 

n.  Creation  and  Existence. 
III.  Rights  and  Remedies  as  to  Each  Other. 
rV.  Transfers   of   Interests. 

V.  Editorial  Notes. 

Estoppel  of  Cotenant,  see  Estoppel,  125. 
Homestead  in  Case  of,  see  Homestead,  7. 
Tenancy    by    Entirety,    see    Husband    and 

Wife,  II.  b. 
Husband's  Rights  in  Wife's  Share  as  Tenant 

in  C/ommon,  see  Husband  and  Wife,  103. 
Effect  of  Temporary  Retention  of  Premises 

under  Permit  from  Cotenant,  see  Land- 
lord and  Tenant,  50. 
Levy  on  Cotenant's  Interest,  see  Levy  and 

Seizure,  11,  and  also  infra,  V.  §  3. 
Notice  to  Cotenant,  see  Notice,  57. 
Action  by  One  Cotenant,  see  Parties,  188. 
In   Partnership   Real   Estate,   see  Partno:- 

ship,  77. 
Partition  between  Cotenants,  see  Partition. 
Agreement     against     Partition,     see     Real 

Property,  1. 


I.  In  General. 

1.  A  joint  tenancy  is  an  estate  held  by 
two  or  more  persons  jointly,  so  that  during 
the  lives  of  all  they  are  equally  entitled  to 
the  enjoyment  of  the  land,  or  its  equivalent 
in  rents  and  profits;  but  upon  the  death  of 
one  his  share  vests  in  the  survivor  or  sur- 
vivors until  there  be  but  one  survivor, 
when  the  estate  becomes  one  in  severalty 
in  him  and  descends  to  his  heirs  upon  his 
death.  Thornburg  v.  Wiggins,  135  Ind.  178, 
34  N.  E.  999,  22:  42 

2.  A  contract  by  brothers  and  sisters  to 
whom  land  has  descended  in  com^ion,  to 
hold  the  same  as  joint  tenants,  and  that  it 
shall  pass  to  the  survivor  by  descent  or  de- 
vise, and  at  the  death  of  the  last  survivor 
shall  pass  to  the  child  of  one  of  such  broth- 
ers by  descent  or  devise,  is  not  rendered  un- 
enforceable by  such  child  by  the  fact  that 
the  last  sur\'ivor  has  conveyed  all  the 
nroperty,  where  the  grantee  had  knowledge 
of  the  rights  of  such  child, — especially 
where  he  obtained  the  property  by  fraud, 
without  payinsf  any  consideration  therefor. 
Mnrphy  v.  Whitney,  140  N.  Y.  541,  35  N.  E. 
930,  24:  123 


n.  Creation   and  Existence. 

Adverse  -Possession  by  Tenant,  see  Adverse 
Possession,  I.  f. 


COTENANCY,   HI. 


827 


In   Proceeds    of    Insurance,    see    Insurance, 

1222. 
See  also  infra,  13. 

3.  A  tenancy  in  common  is  created  by  a 
deed  in  which  the  grantor  makes  an  excep- 
tion of  a  part  not  distinctly  located,  and 
continues  until  he  exercises  his  right  of 
election.  Smith  v.  Furbish,  68  N.  H.  123,  44 
Atl.  398,  47:226 

4.  A  tenancy  in  common  entitling  each  of 
the  children  to  a  one-third  undivided  in- 
terest in  remainder  in  severalty  is  created, 
under  the  Alabama  statute  against  sur- 
vivorship among  joint  tenants,  by  a  will 
creating  a  trust  in  favor  of  one  for  life  and 
after  her  death  in  favor  of  her  three  chil- 
dren for  and  during  the  term  of  their 
natural  lives.  Gindrat  v.  Western  R.  of 
Ala.  96  Ala.  162,  11  So.  372,  19:  839 

5.  UndA  a  gift  of  a  particular  fund  or 
sum  of  money  to  two  or  more,  to  be  divided 
among  them  share  and  share  alike,  the 
legatees  take  as  tenants  in  common,  and 
not  as  joint  tenants.  Bishop  v.  McClelland 
(N.  J.  Ch.)  44  N.  J.  Eq.  450,  16  Atl.  1,  1:  551 

6.  Where  property  is  devised  to  a  daugh- 
ter for  life,  with  remainder  to  her  children, 
the  survivors  or  survivor  of  them  living  at 
her  death,  the  children  living  at  her  death 
do  not  take  as  tenants  in  common  during 
the  lifetime  of  the  mother,  but  only  as 
members  of  a  fluctuating  class,  with  no 
specific  or  fixed  interests;  and  a  conveyance 
by  one  of  them  to  a  third  party  by  deed, 
with  covenants  of  seisin  and  general  war- 
ranty, of  the  whole  of  the  tract  of  land  de- 
vised, does  not  impose  upon  the  vendee  to- 
wards the  other  children  the  duties  and 
obligations  of  one  tenant  in  common  to  an- 
other. Kansas  City  Land  Co.  v.  Hill,  87 
Tenn.  689,  11  S.  W.  797,  5:  45 

7.  The  relation  of  cotenants  will  con- 
tinue to  exist  between  two  locators  of  a 
mining  claim  until  the  claim  is  abandoned 
Or  forfeited.  McCarthy  v.  Speed,  11  S.  D. 
362,  77  N.  W.  590,  12  S.  D.  7,  80  N.  W.  135, 

50:  184 
In  crops  or  trees. 
See  also  infra,  18,  19. 

8.  A  person  who,  by  virtue  of  an  arrange- 
ment whereby  he  harvested  hay,  became  the 
owner  of  an  undivided  portion  of  it,  became 
thereby  a  tenant  in  common  of  the  hay. 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Hart,  119 
Ind.  273,  21  N.  E.  753,  4:  549 

9.  A  contract  by  which  one  person  is  to 
set  out  and  cultivate  for  ten  years  peach 
trees  upon  the  land  of  another,  and  fo  have 
half  of  the  crops  for  any  two  years  of  such 
term  which  he  may  select,  makes  him  a  ten- 
ant in  common  with  the  owner  of  the  land, 
of  the  peaches  for  the  years  which  he  may 
select.  Dickey  v.  Waldo,  97  Mich.  255.  56 
N.  W.  608,  23 :  449 

10.  Trees  standing  on  a  boundary  line  be- 
long to  the  adjoiningr  owners  as  tenants  in 
common.  Musch  v.  Burkhart,  83  Iowa,  301 
48  N".  W.  1025,  12:  484 
In  warehouse  receipt. 

11.  Holders  of  receipts  for  grain  deposit- 
ed for  storage,  of  the  same  kind  and  quality. 


are  tenants  in  common  in  the  grain,  under 
Minn.  Gen.  Stat.  1878,  §  13,  each  being 
limited  to  the  amount  called  for  by  his  re- 
ceipt. Hall  V.  Pillsbury,  43  Minn.  33,  44  N. 
W.  673,  7:529 


III.  Rights  and  Remedies  as  to  Each  Other. 

Part    Performance    of    Oral    Agreement   to 

Convey  Intei-est  in  Land  to  Cotenant, 

see  Contracts,  248. 
Form    of    Remedy    against    Cotenant,    see 

Equity,  75. 
Estoppel  of  Cotenant,  see  Estoppel,  170. 
Allowance  for  Improvements  on  Partition, 

see  Improvements,  10-13. 
As  to  Partition  Generally,  see  Partition. 
See  also  supra,  1,  2,  11. 
For  Editorial  Notes,  see  infra,  V. 

12.  A  tenant  in  common  may  be  liable  for 
conversion  in  wrenching  and  carrying  away 
machinery  from  a  mill  against  his  coten- 
ant's  protest.  Waller  v.  Bowling,  108  N.  C. 
289.  12  S.  E.  990,  12:  261 

13.  An  occupying  claimant  in  good  faith 
and  the  owner  of  the  fee  should  be  regarded 
in  effect  as  tenants  in  common  in  propor- 
tion to  the  value  of  their  respective  in- 
terests, with  the  sole  right  of  possession  in 
the  occupant  so  long  as  the  joint  tenancy 
continues,  where  the  owner  does  not  pay 
for  the  improvements  and  the  occupant 
does  not  pay  for  the  land  as  is  required  by 
statute,  and  the  statute  does  not  provide 
for  such  a  contingency.  Leighton  v.  Young, 
10  U.  S.  App.  298,  3  C.  C.  A.  176,  52  Fed. 
439,  18:266 
In  oyster  bed. 

14.  A  tenant  in  common  of  an  oyster  bed 
cannot  deprive  his  cotenants  of  their  right 
to  take  natural  oysters  therefrom,  by 
dredging  the  land  and  placing  oyster  shells 
and  seed  oysters  thereon,  although  these 
must  be  slightly  disturbed  by  taking  the 
natural  oysters.  Mott  v.  Underwood,  148 
N.  Y.  463,  42  N.  E.  1048,  ^  32:270 
In  manure. 

15.  One  of  two  tenants  in  common  of  a 
quantity  of  manure  may  rightfully  take 
away  his  share  without  the  intervention  of 
a  court  to  make  the  division.  Pickering  v. 
Moore,  67  N.  H.  533,  32  Atl.  828,  31 :  698 
In  mines. 

Damages  for  Exclusion  from,  see  Damages, 

615. 
Measure  of  Damages  for  Mining  Coal,  see 

Damages,  412,  413. 
Proper  Remedy  for  Cotenant  Excluded  from 

Mine,  see  Election  of  Remedies.  6. 
Estoppel  as  to,  see  Kstnppel.  168,  169. 
Injunction    ajrainst    Taking   Petroleum,   see 

Injunction,  187. 
See  also  supra,  8;    infra,  38;    ivlines,  34. 

16.  A  license  or  consent  of  a  joint  tenant 
"if  a  mine  to  take  ore  therefrom  extends 
^nlv  to  his  interest  in  the  mine.  Omaha  & 
^.  Smelting  &  R.  Co.  v,  Tabor,  13  Colo.  41, 
^1  Pac.  925,  g:236 

17.  It  is  waste  in  a  tenant  in  eommon  to 
take  petroleum  oil  from  the  land  for  which 


COTENANCY.  IH. 


he  is  liable  to  his  cotenants  to  the  extent  of 

their    right    in    the    land.     Williamson    v. 

Jones,  43  W.  Va.  562,  27  S.  E.  411,      38:  694 

As  to  crops. 

See  also  supra,  8-10. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

18.  Crops  grown  upon  land  while  it  is  in 
the  peaceable  possession  of  one  of  several 
tenants  in  common  become  his  individual 
property  when  they  are,  in  the  due  course 
of  husbandry,  peaceably  and  in  good  faith 
severed  by  him  from  the  common  estate; 
and  if  his  cotenants  afterwards  enter  and 
take  away  such  crops  they  will  be  liable 
in  trover  for  the  value  thereof.  Le  Barron 
V.  Babcock,  122  N.  Y.  153,  25  N.  E.  253, 

9:625 

19.  The  measurement  and  marking  of 
stacks  of  hay  by  tenants  in  common  to 
show  the  division  lines  of  the  portions,  and 
an  agreement  that  either,  at  his  con- 
venience, could  cut  the  stacks  and  take  his 
portion,  is  not  sufficient,  without  an  actual 
severance  of  the  stacks,  to  terminate  the 
common  ownership.  Louisville,  N.  A.  &  C. 
R.  Co.  V.  Hart,  119  Ind.  273,  21  N.  E.  753, 

4:  549 
Liens. 

20.  One  tenant  in  common  has  no  lien 
against  his  cotenant's  interest  in  the  prop- 
erty for  rents  in  excess  of  his  share,  col- 
lected and  retained  by  such  cotenant  before 
partition  of  the  land.  Flack  v.  Gosnell,  76 
Md.  88,  24  Atl.  414,  16:547 

21.  Mass.  Pub.  Stat.  chap.  12,  §§  63-65, 
relating  to  the  preservation  of  a  lien  in 
favor  of  one  tenant  in  common  who  pays 
taxes,  as  against  his  cotenants,  apply 
simply  to  a  payment  in  the  first  instance, — 
not  to  a  redemption  of  the  premises  after 
a  sale,  when  the  tenant  takes  a  deed  which 
is  put  on  record.  Hurley  v.  Hurley,  148 
Mass.  444,  19  N.  E.  545,  2:  172 

22.  One  who  redeems  property  in  which 
he  afterwards  becomes  a  tenant  in  common, 
from  a  tax  sale,  is  entitled  to  have  the  lien 
kept  alive  as  against  his  cotenant,  until 
the  latter  shall  have  paid  his  share  of  the 
taxes,  if  there  are  no  special  fiduciary  re- 
lations between  the  parties,  although  he 
takes  no  steps  to  assert  and  preserve  his 
licH,  as  prescribed  by  Mass.  Pub.  Stat.  chap. 
12,  §§  63-65.  Id. 
Power  to  create  easement. 

23.  A  tenant  in  common  cannot  create 
an  easement  over  the  premises  without  con- 
sent of  his  cotenants.  Baker  v.  Willard. 
171  Mass.  220,  50  N.  E.  620,  40:  754 
Accounting. 

Accounting     for     Petroleum     Taken     from 

Land,  see  Accounting,  3,  4. 
For  Editorial  Notes,  see  infra,  V.  §  4. 

24.  A  coparcener  merely  from  sole  occu- 
pation of  the  premises  is  not  chargeable  in 
favor  of  other  coparceners,  unless  he  ex- 
cludes them.  Ward  v.  Ward,  40  W.  Va 
611,  21  S.  E.  746,  29:  449 

25.  The  liability  of  a  joint  tenant  or  ten- 
ant in  common  to  account  to  his  cotenants 
under  W.  Va.  Code.  chap.  100,  §  14,  for  re- 
ceiving more  than  his  just  share  or  propor- 


tion of  the  benefits,  does  not  apply  to  co- 
partners. Id. 

26.  A  tenant  in  common  may  be  com- 
pelled to  account  to  his  cotenant  for  the  use 
of  the  lands  held  in  common,  although  he 
has  received  the  benefits  thereof  without 
any  attempt  to  exclude  the  other,  or  any 
promise  or  mutual  understanding  to  give 
any  compensation  for  the  profits  taken  by 
him.  Gage  v.  Gage,  G6  N.  H.  282,  29  Atl. 
543,  28:  829 
Contribution. 

See  also  infra,  34. 

27.  A  tenant  in  common  purchasing  at  a 
tax  sale  will  be  entitled  to  contribution 
from  his  cotenants,  toward  the  cost  and  ex- 
pense incurred  in  the  purchase  of  the  tax 
title.  Clark  v.  Lindsey,  47  Ohio  St.  437.  25 
N.  E.  422,  9:  740 

28.  Part  owners  of  a  water  po\j'er  cannot 
be  compelled  to  contribute  to  the  building 
of  weirs  at  a  large  expense,  in  order  to 
apportion  the  water,  or  of  improvements 
not  in  the  nature  of  repairs,  but  to  raise  the 
level  of  the  water  to  facilitate  its  appor- 
tionment. Brown  v.  Cooper,  98  Iowa,  444, 
67  N.  W.  378,  33:  61 

29.  The  right  to  compel  joint  tenants,  ten- 
ants in  common,  or  coparceners  to  con- 
tribute to  necessary  repairs,  applies  only  to 
mills  and  houses,  and  not  to  fences  or  other 
repairs  to  the  property.  Ward  v.  Ward,  40 
W.  Va.  611,  21  S.  E.  746,  29:449 

30.  The  right  of  a  joint  tenant,  tenant  in 
common,  or  coparcener  to  compel  others  to 
contribute  to  necessary  repairs,  exists  only 
as  to  future  repairs  made,  after  request  to 
assist   and   refusal.  Id. 

31.  A  coparcener  allowed  for  improve- 
ments may  be  charged  by  way  of  set-oflf  for 
use  and  occupation.  Id. 

32.  Permanent  improvements  made  by 
one  coparcener  are  cnargeable  to  the  others 
personally  or  upon  their  shares  in  the  land, 
only  when  made  by  their  request  or  agree- 
ment. Id. 
Purchase  of  outstanding  title. 

Evidence  of  Fraud  as  to,  see  Evidence,  1793, 
Purchase  by  Life  Tenant,  see  Life  Tenants, 

7,  8,  24. 
See  also  Taxes,  505. 

33.  Title  cannot  be  acquired  against  a 
cotenant  in  common  at  a  sale  under  an  en- 
cumbrance which  was  created  by  the  for- 
mer owner,  through  whom  both  parties 
claim  title.  McPheeters  v.  Wright,  124  Ind. 
560,  24  N.  E.  734,  9:  176 

34.  Where  one  of  several  reversioners  of 
the  equity  of  redemption  of  real  estate  in 
possession  of  the  life  tenant,  which  is  worth 
considerable  more  than  the  amount  of  the 
mortgage,  purchases  the  interest  of  the 
mortgagee,  together  with  all  rights  which 
he  has  acquired  under  foreclosure  proceed- 
ings, and.  before  the  foreclosure  is  complete, 
acquires  the  life  interest  in  the  property, 
he  is  bound,  before  he  can  complete  the 
foreclosure  as  acainst  his  co-reversioners, 
to  notify  them  of  the  peril  to  their  interests 
and  give  them  an  opportunity  to  come  in 
and  contribute  with  him  towards  a  redemp- 
tion from  the  mortgage ;  and  in  case  he  fails 


COTENANCY,  IV.,  V. 


to  do  so,  and  gets  title  to  the  property 
under  his  foreclosure  proceecUngs,  they  will 
be  entitled  to  their  proportions  thereof 
upon  payment  of  their  shares  of  the  mort- 
gage debt.  Barnes  v.  Boardman,  152  Mass. 
391,  25  N.  E.  623,  9:  571 

35.  Where  a  reversioner  acquires  the  life 
interest  in  the  equity  of  redemption  of  real 
estate  after  having  purchased  the  interest 
of  the  mortgagee  in  the  property,  and  then 
forecloses  and  takes  title  to  the  property 
without  notifying  his  co-reversioners,  after 
which  he  sells  the  property  to  a  bona  fide 
purchaser  for  value,  the  co-reversioners, 
upon  coining  in  to  redeem,  may,  if  they  con- 
sent thereto,  be  given  an  interest  in  the 
fund  realized  from  the  sale,  instead  of  in 
the  property.  .  Id, 

3G.  One  cotenant  in  remaindef,  not  en- 
titled to  possession  of  the  property,  may 
obtain,  as  against  his  cotenants,  a  good,  title 
to  the  property  from  a  stranger  who  has 
purchased  at  a  tax  sale  made  possible 
through  the  default  of  the  life  tenant. 
Crawford  v.  Meis,  123  Iowa,  610.  99  N. 
W.  186,  66:  154 

37.  Where  a  person  seised  of  lands  as  ten- 
ant in  dower  neglects  to  pay  the  taxes 
thereon  so  long  that  they  are  sold  for  the 
payment  of  taxes,  if  one  of  several  ten- 
ants in  common  of  the  remainder  in  fee 
of  such  lands  purchase  the  lands  at  the  tax 
sale,  the  purchase  will  be  held  to  inurfe  to 
the  benelit  of  all  the  cotenants  in  remain- 
der. Clark  V.  Lindsey,  47  Ohio  St.  437,  25 
N.  E.  422,  9:  740 

38.  One  cotenant  of  a  mining  claim  upon 
which  the  annual  assessment  work  has  not 
been  done  cannot,  by  relocating  the  claim, 
obtain  a  title  thereto  as  against  his  coten- 
ants. McCarthy  v.  Speed,  11  S.  D.  362,  77 
N.  W.  590,  12  S.  D.  7,  80  N.  W.  135, 

50:  184 


rV.  Transfers   of  Interests. 

Assignability  of  Right  of  Action  to  Set 
Aside  Conveyance  between  Cotenants, 
see  Assignment,  7. 

Parol  Evidence  as  to  Sale  in  Trust  for  Co- 
tenants,  see  Evidence,  1210. 

Running  of  Limitation  in  Favor  of  Pur- 
chaser, see  Limitation  of  Actions,  134. 

As  to  Partition  of  Interests,  see  Partition. 

Specific  Enforcement  of  Oral  Contract  to 
Convey  Interest,  see  Specific  Perform- 
ance, 49. 

See  also  Guardian  and  Ward,  15;  Trial,  3. 

39.  Where  a  devisee  who  is  a  tenant  in 
common  with  other  devisees  dies  leaving  a 
will  by  which  he  devises  his  estate  to  his 
niece,  the  legal  title  to  his  undivided  inter- 
est in  the  land  devised  to  him  passes  under 
his  will  to  the  niece.  Simmons  v.  Spratt, 
26   Fla.   449,   8    So.    123,  9:  343 

40.  A  stranger  to  the  common  title  can- 
not question  the  rightfulness  of  the  exclu- 
sive possession  of  one  tenant  in  common  as 
against  his  cotenants:  and  where  there  has 
been  an  actual  partition,  such  stranger  can- 
not make  the  irregularity  or  invalidity  of 


the  partition  proceedings  a  defense  to  a  re- 
covery by  the  party  to  whom  the  exclu- 
sive possession  of  the  land  in  question  has 
been  given.  If  the  legal  title  to  the  entire 
part  assigned  in  severalty  did  not  pass,  his 
title,  to  the  extent  of  his  undivided  inter- 
est, is  sufficient  to  maintain  or  assei't  his 
exclusive  possession  to  the  whole  land  as- 
signed him,  or  any  part  thereof.  Id. 

41.  Where  there  has  been  an  actual  par- 
tition of  land  among  tenants  in  common, 
and  one  of  them  conveys  by  metes  and 
bounds  a  part  of  that  asigned  to  him  in 
severalty,  the  grantee  has,  as  to  the  part 
so  conveyed,  the  same  rights  against  a 
stranger  to  the  common  title  as  his  grantor 
had.  •  Though  the  deed  should  prove  void 
as  to  other  cotenants,  it  is  good  as  against 
the  grantor  and  a  stranger  to  the  common 
title.  Id. 

42.  A  conveyance  by  warranty  deed  by 
one  tenant  in  common,  which  purports  to 
describe  by  metes  and  bounds  the  portion 
of  the  common  property  wliich  the  grantor 
intends  to  convey,  is  valid  as  between  the 
parties  to  such  deed,  where  it  can  be  given 
full  effect  without  injury  to  the  other  co- 
tenants,  and  will  operate  as  a  conveyance 
of  the  grantor's  entire  undivided  interest  in 
the  property.  Young  v.  Edwards,  33  S.  C. 
404,  11  S.  E.  1066,  10:  65 
Of  logs  or  timber. 

43.  A  cotenant  cannot  convey  a  good  title 
to  logs  which  he  cut  and  sold  without  au- 
thority from  land  owned  in  common,  and 
therefore  cannot  enforce  the  contract 
against  the  purchaser,  who  refuses  to  re- 
ceive the  logs.  Nevels  v.  Kentucky  Lumber 
Co.  108  Ky.  550,  56  S.  W.  969,  49:  416 

44.  One  tenant  in  common  cannot  con- 
vey his  interest  in  the  timber  on  the  land 
and  thereby  make  the  other  tenants  in  com- 
mon cotenants  with  his  grantee.  Benedict 
V.  Torrent,  83  Mich.  181,  47  N.  W.  129, 

11:278 
Appurtenances  passing  by. 

45.  A  sale  of  his  interest  by  one  tenant  in 
common  of  a  mill  to  the  other  will  carry 
the  appurtenances  necessary  to  its  opera- 
tion as  they  existed  when  the  sale  was 
made,  and  prevent  his  subsequently  with- 
drawing water  from  the  stream,  for  manu- 
facturing purposes  on  his  own  land,  to  the 
injury  of  the  mill.  Cox  v.  Howell,  108 
Tenn.  130,  65  S.  W.  868,  58:  487 


V.  Editorial  Notes. 

§  I.  Generally. 

When  burial  lot  held  in  common.     67:  122. 

When  action  of  trover  will  lie  by  one  co- 
tenant  against  another. 
12:  261,»  262.* 

Cotenanfs  conveyance  by  metes  and  bounds. 
11:278.* 

Right  of  tenant  in  common  to  crops.  9: 
625.* 

How   far  share  of   one   cotenant  collecting 
rents  in  subject  to  lien  in 
favor  of  his  cotenant.    16:. 
647. 


830 


COTENANCY,  V.  (Ed.  Notes.)— COUNTIES. 


§  2.  Relation   between   cotenants;     adverse 

interests. 
Trust  relations  between  cotenants.     12:  485. 
Possession  by  one;   dissedsin.     4:  645;*   10: 

388.* 
Acquiring    adverse    claim    by    payment    of 

taxes.     2:  172;*  9:  740.* 
EflFect  of  purchase  of  outstanding  title  by 
cotenant,     generally.       9: 
571;*    10:  101.* 
Purchase    of    tax    title.      2:  172 ;»     10: 
101.» 
Right  of  cotenant  to  relocate  mining  claim 
for  hia  own  benefit.     50: 
184. 
§  3.  remedies. 
As  to  Action  for  Partition,  Generally,  see 

Partition,  III. 
Validity  of  agreement  against  right  to  par- 
tition.    16:220. 
Right   to    injunction    against    each    other. 

12:484.* 
Contribution  among  cotenants.    9 :  740.* 
Ejectment    by    one    against    third    person. 

18:  789. 
Levy  on  crops  owned  by  cotenants.  23:  260. 
§  4.  Liability  of  cotenants  to  account  for 
use  and  occupation    and  rents    and 
profits. 
The  common-law  doctrine.    28:  829. 
Reason  of  the  common-law  doctrine.   28:830. 
States   not    adopting   the    English    statute. 

28:  832. 
When  held  liable.    28:  832. 

In  case  of  ouster.    28:  832. 

In    cases    where    an    agreement    exists. 

28:  834. 
When  occupied  by  one  alone.     28:  836. 
The  remedy  as  between  cotenants.    28:  840. 
Statutory  action  of  account.     28:  840. 
Proceedings  in  equity.    28:  842. 
In  action  of  assumpsit.    28:  844. 
Liabilitv    to    account    for    rents    received. 

28:  848. 
Lien  for  rents  received.    28:  849. 
The  question,  What   is   more  than   a  just 

share?     28:  849. 
Necessity  of  a  demand.     28:  850. 
Necessarv  allegations  in  action  of  account. 

•28:850. 
In   what   character   liable.     28:  850. 
Position  of  cotenant  holding  over.     28:  851. 
Extent  of  liability.    28:  852. 
When  liable  to  pay  interest.    28:  853. 
When  held  for  the  rental  value.     28:  853. 
Position  of   purchaser  of  cotenant's  share. 

28:  8.54. 
As  to  coparceners.     28:  854. 
The  question  of  deductions.    28:  854. 
Mesne  profits.     28:  857. 
The  application   of  the   statute   of  limita- 
tions.   28:  859. 
Constnietion  of  the  state  statutes.    28:  860. 
V§  5,  Liability    of    cotenants    for    improve- 
ments and  repairs. 
Improvements.     29:  449. 

Liability  at  common  law.     29:  449. 
Liable  in  assumpsit  for  improvements. 

29:  4.52. 
Rule  in  equity.     29:  4.52. 
Lien  for  improvements.     29:  456. 
Interest    on    improvements.      29:  457. 


Position  of  grantee  of  cotenant's  share. 
29:  457. 
Repairs.     29:457. 

General  doctrine.     29:  457. 
Liability  in  assumpsit.    29:  459. 
Necessity  of  a  demand  and  notice.    29: 

459. 
Lien  for  repairs.     29:  459. 


COTTOLENE. 
Sale  of,  see  Food,  8,  9. 


COTTON. 

Validity    of    Contract    for    Dealing    in,    on 

Margin,  see  Contracts,  530. 
Proximate  Cause  of  Injury  by  Burning  of, 

see  Proximate  Cause,  34,  35. 


COUNCIL. 

Legislative  Functions  of,  see  Municipal  Cor- 
porations, II.  c. 


COUNSEL  FEES. 


See  Attorneys,  II.  c,   1;     Attorneys'  Fees; 
Damages,  HI.  r. 


COUNTERCLAIM. 
See  Set-Off  and  Counterclaim. 


COUNTERFEITING. 


Indictment  for,  see  Indictment,  etc.,  85. 

Liability  for  Charging  Passenger  with 
Passing  Counterfeit  Money,  see  Car- 
riers, 182,  183,  186,  190. 

Labels  and  Trademarks,  see  Forgery,  18; 
Trademark,  IV. 

Editorial  Notes. 

Instigation  to.     25:  345. 
Cruel  and  illegal  punishment  for.     35:571. 
Evidence  of  other  crimes  in  prosecution  for. 
62:  225,  257. 


COUNTIES. 


I.  As    Political    Divisions;     Organization; 
County  Seat. 

a.  In  General;    Organization. 

b.  County  Seat. 


COUNTIES,  I.  a. 


831 


n.  Rights  and  Liabilities. 

a.  In  General. 

b.  Warrants;    Indebtedness. 

c.  Power  to   Tax;    County  Purposes. 

d.  Contracts;     Power   and   Procedure 

of  Officers. 
ni.  Editorial  Notes. 

Agricultural    Societies   of,   see  Agricultural 

Societies,  2,  5. 
Assumpsit   against,   for  Money   Mistakenly 

Paid  to,  see  Assumpsit,  42. 
Estoppel  of,  see  Bonds,  145,  162,  164. 
Deed  to  Commissioner  of,  see  Deeds,  52. 
Judicial  Notice  as  to,  see  Evidence,  44-46. 
Grant  of  Ferry  Franchise  by,  see  Ferry,  7,  8. 
Collateral    Attack    on    Judgment    against, 

see  Judgment,  124. 
Lien  on  Property  of,  see  Mechanics'  Liens, 

67. 
Seal  of,  see  Seal,  4,  5. 
Special  Legislation  as  to,  see  Statutes,  315- 

318,    334-336,   345,    346,    362,    365,    366, 

369,  375,  382,  383,  385,  386,  389,  404,  405. 


L  As     Political     Divisions;     Organization; 
County  Seat. 

a.  In  General;  Organization. 

Equity  Jurisdiction  as  to  Boundary  of,  see 
Equity,  17. 

1.  A  county  organization  is  not  a  spe- 
cial privilege  or  immunity  within  the  mean- 
ing of  a  constitutional  provision  that  no 
special  privilege  or  immunity  shall  ever  be 
granted  that  may  not  be  altered  or  revoked 
by  the  legislature.  McDonald  v.  Doust 
(Idaho)  81  Pac.  60,  69:  220 
Creation;  reorganization. 

Two-Thirds  Vote  for  Creation  of,  see  Elec- 
tions, 253. 

Special  Legislation  as  to,  see  Statutes,  316, 
317. 

Effect  of  Repeal  of  Statute  as  to,  see  Stat- 
utes, 616. 

See  also  infra,  6,  7;  Municipal  Corporations, 
1. 

2.  The  state  is  estopped  from  questioning 
the  regularity  of  the  passage  of  an  act 
creating  a  county,  when  for  four  years  the 
county  has  been  recognized  by  each  of  the 
co-ordinate  branches  of  the  government  as 
a  county  and  legal  subdivision  of  the  state. 
People  ex  rel.  Attorney  General  v.  Alturas 
County,  6  Idaho,  418,  55  Pac.  1067,  44:  122 

3.  When  conflicting  petitions  for  the  sub- 
mission of  the  question  of  creating  new 
counties  are  presented,  it  is  the  duty  of  the 
county  board  to  grant  the  petition  that  is 
first  filed,  if  it  meets  all  the  requirements 
of  the  law,  and  to  refuse  to  submit  the 
others.  State  ex  rel.  Pennell  v.  Armstrong, 
30  Neb.  493,  46  N.  W.  618,  9:382 

4.  A  county  board  cannot  lawfully  sub- 
nwt  to  be  voted  upon  at  the  same  election, 
two  proposition  to  orsranize  from  a  county 
two  new  counties,  when  the  territory  de- 
scribed in  one  proposition  embraces  part  of 
that  included  in  the  other.  Id. 


5.  The  power  to  create  new  counties,  con- 
ferred on  the  legislature  by  the  Constitu- 
tion, does  not  include  power  to  reorganize 
under  a  new  name  an  old  county  existing 
at  the  time  of  the  adoption  of  the  Consti- 
tution. McDonald  v.  Doust  (Idaho)  81  Pac. 
60  69:  220 

Division;  change  of  boundary. 

Proof  of  Annexation,  see  Evidence,  2310. 

Division  of,  in  Apportionment  of  Election 
Districts,  see  Election  Districts,  7-10. 

Effect  of  Change  of  Boundary  on  Election 
Districts,  see  Election  Districts,  14,  15. 

Mandamus  to  Compel  Division  into  As- 
sembly Districts,  see  Mandamus,  60. 

Quo  Warranto  to  Test  Validity  of  Annexa- 
tion, see  Quo  Warranto,  15,  31. 

Division  of,  into  Townships,  see  Towns,  4. 

See  also  supra,  3,  4;    infra,  10,  45,  46. 

6.  New  counties  cannot  be  formed  so  as 
to  reduce  the  county  frorti  which  they  are 
created  to  a  less  area  than  the  constitu- 
tional limit.  State  ex  rel.  Pennell  v.  Arm- 
strong, 30  Neb.  493,  46  N.  W.  618,        9:  382 

7.  The  power  to  divide  counties  or  towns 
and  erect  new  counties  and  towns,  or  to 
change  their  boundaries,  is  conferred  by  the 
general  grant  of  legislative  power,  the  time 
and  mode  of  exercising  which  is  in  the  dis- 
cretion of  the  legislature,  unless  restrained 
by  other  provisions  or  arrangements  of  the 
Constitution.  People  ex  rel.  Henderson  v. 
Westchester  County  Supers.  147  N.  Y.  1,  41 
N.  E.  563,  30:  74 

8.  The  provision  in  N.  Y.  Const,  art.  3, 
§  6,  that  nothing  in  that  section  shall  pre- 
vent the  division  at  any  time  of  counties 
and  towns  by  the  legislature,  although  that 
section  relates  to  the  apportionment  of 
members  of  assembly  and  the  manner  of 
constituting  assembly  districts,  gives  the 
legislature  power  to  change  such  bounda- 
ries in  its  discretion,  although  the  county 
boundaries  which  are  changed  may  be  the 
boundaries  of  a  senate  district.  Id. 

9.  Md.  Const,  art.  13,  §  1,  which  provides 
that  no  lines  of  any  county  shall  be  changed 
without  the  consent  of  a  maiority  of  the 
voters  residing  within  the  district  which, 
under  the  proposed  change,  would  form  a 
county  different  from  that  to  which  it  be- 
longed prior  to  the  change,  was  not  intend- 
ed to  limit  the  power  of  the  legislature  to 
change  county  lines  to  cases  where  parts  of 
one  county  are  added  to  some  other  county. 
Daly  V.  Morgan,  69  Md.  460,  16  Atl.  287, 

1:757 
Abolishing. 

10.  A  statute  abolishing  an  existing 
county,  and  creating  two  new  counties  out 
of  the  same  territory,  and  establishing  a 
new  county  seat  for  each,  is  void  under  the 
Idaho  Constitution,  which  recognizes  the 
counties  existing  at  ,the  time  of  its  adop- 
tion as  legal  subdivisirns  of  the  state,  and 
forbids  the  removal  of  a  county  seat  or  the 
cutting  off  of  territory  without  a  vote  of  the 
people,  and  prohibits  the  reduction  of  the 
territory  of  a  county  below  400  square 
miles.  McDonald  v.  Doust  (Idaho)  81  Pac. 
60,  69:  220 


832 


COUNTIES,  I.  b,   II.  a. 


11.  The  legislature  has  no  power  to  de- 
stroy the  counties  recognized  by  the  Consti- 
tution as  organized  and  existing  at  its 
adoption  as  legal  subdivisions  of  the  state. 

Id. 
Unorganized  counties. 

Special  Legislation  as  to,  see  Statutes,  335. 
Taxation  in,  see  Taxes,  39,  92. 

12.  An  unorganized  county  attached  to  an 
organized  county  for  judicial  purposes  is 
not  "annexed,"  within  the  meaning  of  Dak. 
Comp.  Laws,  §  535,  providing  that  such  por- 
tions of  the  territory  not  organized  into 
counties  as  are  annexed  to  any  organized 
county  shall,  for  judicial  and  other  pur- 
poses, be  deemed  to  be  within  the  limits 
and  a  part  of  the  county  to  which  they  are 
annexed.  State  ex  rel.  DoUard  v.  Hughes 
County,  1  S.  D.  292,  46  N.  W.  1127, 

10:  588 

13.  Dak.  Laws  1887,  chap.  175,  attaching 
certain  unorganized  counties  to  an  organized 
county  for  judicial  purposes,  did  not  have 
the  eflFect  of  so  attaching  them  for  elec- 
tion purposes,  such  act  being  at  once  a 
grant  and  a  limit  of  jurisdiction.  Id. 

b.  County  Seat. 

Duty  to  Stop  Trains  at,  see  Carriers,  1445- 

1150. 
Compelling   Trains    to    Stop   at,   see    Com- 
merce,  71,  72. 
As  Place  of  Holding  Court,  see  Courts,  314- 

.    317. 
Condition  in  Deed  for,  see  Real  Property,  14. 
Special  Legislation  as  to,  see  Statutes,  336- 
See  also  supra,  10. 
For  Editorial  Notes,  see  infra,  III.  §  5. 

Petition  for  change. 

14.  Under  Va.  act  March  2,  1888,  author- 
izing the  voters  of  Warwick  county  to  vote 
upon  the  question  of  the  removal  of  the 
courthouse,  corporations  owning  real  estate 
and  paying  taxes  in  said  county  are  in- 
cluded in  the  term  "persons"  in  §  1  of  said 
act,  who  are  to  sign  the  application  for  an 
election  to  ascertain  whether  the  court- 
house shall  be  removed.  Crafford  v.  War- 
wick County  Supers.  87  Va.  110,  12  S.  E. 
147,  10:  129 

15.  Proof  that  those  who  have  signed  a 
petition  for  the  removal  of  a  county  seat  or 
a  remonstrance  were  not  in  fact  resident 
electors  of  the  county,  as  required  by  stat- 
ute in  order  to  be  allowed  to  unite  in  such 
petition  or  remonstrance,  must  be  per- 
mitted by  the  board  of  county  commission- 
ers. Ayres  v.  Moan,  34  Neb.  210,  51  N.  W. 
830,  15:  501 

16.  A  petition  for  the  removal  of  a  county 
seat  under  Neb.  Comp.  Stat.  chap.  17,  art. 
3,  §  1,  must  show  the  section,  township,  and 
range  on  which,  or  the  town  or  city  in 
which,  each  resident  ^elector  who  signs  it 
resides,  together  with  his  age  and  the  time 
of  his  residence  in  the  county,  or  such  pe- 
titioner cannot  be  recognized.  Id. 

17.  A  supplemental  petition  cannot  be  al- 
lowed, to  ndd  to  the  list  of  petitioners  for 
the  removal  of  a  county  seat.  Id. 

18.  The    determination    of    the    board    of 


county  commissioners  involved  in  their  or- 
dering an  election  upon  a  proposition  to  re- 
locate a  county  seat,  that  the  petition  pray- 
ing for  such  election  was  signed  by  the 
number  of  voters  required  by  the  North 
Dakota  statutes,  is  not  open  to  judicial  in- 
vestigation after  the  election  has  been  held 
and  a  sufficient  vote  cast  to  work  a  reloca- 
tion of  the  county  seat.  State  ex  rel.  Little 
V.  Langlie,  5  N.  D.  594,  667  N.  W.  958, 

32:  723 
Election  as  to  change. 
Two-Thirds  Vote  for,  see  Elections,  254. 
Mandamus  to   Test  Validity  of,  see  Man- 
damus,  133,  134. 
See  also  supra,  18. 

19.  An  election  on  a  proposition  to  relo- 
cate a  county  seat  is  not  void  because  of  a 
defect  in  the  notice  of  election  required  by 
the  North  Dakota  statutes,  where  it  ap- 
pears from  the  vote  cast  that  the  voters 
were  not  misled  by  it.  State  ex  rel.  Little 
V.  Langlie,  5  N.  D.  694,  67  N.  W.  958, 

32:  723 

20.  The  requirements  of  Dak.  Comp.  Laws, 
§  565,  that  if  the  county  board  orders  an 
election  on  a  proposition  to  relocate  the 
county  seat  it  shall  be  its  duty  to  notify 
the  voters  in  the  general  election  notices  to 
designate  upon  their  ballot  at  the  election 
the  place  of  their  choice,  is  substantially 
complied  with  by  a  notice  stating  that  one 
of  the  purposes  of  the  election  is  to  vote 
upon  the  question  of  relocating  the  county 
seat.  Id. 

21.  Promises  that  -a  courthouse  will  be 
built  free  of  cost  to  the  county  if  the 
county  seat  is  removed  to  a  certain  place, 
and  that  the  expense  of  the  election  for  that 
purpose  will  be  paid  by  private  citizens 
without  cost  to  the  county,  constitute  brib- 
ery which  will  make  invalid  an  election  in 
favor  of  such  removal.  Ayres  v.  Moan,  34 
Neb.  210,  51  N.  W.  830,  15:  501 


II.  Rights  and  Liabilities, 
a.  In  General. 

Requiring  County  to  Build  and  Maintain 
Hicrh  Schools,  see  Constitutional  Law, 
279. 

Equity  Jurisdiction  to  Compel  Restoration 
of  Fund,  see  Equity,  42. 

Levy  on  Property  of,   see  Exemptions,    11. 

County  as  Municipal  Corporation,  see  As- 
sumpsit, 52. 

Compelling  Restitution  to  Treasurer  of 
Money  Improperly  Appropriated,  see 
Parties,  98. 

Rights  of,  in  Apportioning  Election  Dis- 
tricts, see  Election  Districts,  II. 

Power  to  Revoke  Legislative  Grant  of  Fines, 
etc.,  to,  see  Fines,  4. 

Right  in  Proceeds  of  License,  see  License, 
59. 

Right  to  Recover  for  Support  in  Insane 
Asylum,  see  Incompetent  Persons,  33- 
35. 

Recovery  for  Support  of  Poor  Person,  see 
Poor  and  Poor  Laws,  8. 


COUNTIES,   II.  a. 


833 


Liability  for  Maintenance  of  Girl  at  Indus- 
trial School,  see  House  of  Correction,  9. 

Liability  to  Garnishment,  see  Garnishment, 
27-29. 

Liability  for  Interest,  see  Interest,  70,  71. 

Liability  for  Witness  Fees,  see  Witnesses, 
205,  206. 

For  Editorial  Notes,  see  infra,  III. 

22.  A  county  is  not  a  municipal  corpora- 
tion proper.  Jefferson  County  Supers,  v. 
Grafton,  74  Miss.  435,  21  So.  247,        36:  798 

23.  A  county  is  not  a  municipal  corpora- 
tion in  the  full  sense  of  the  term,  but  only 
a  quasi  corporation,  and  possesses  such  pow- 
ers and  is  subjected  to  only  such  liabili- 
ties as  are  specially  provided  for  by  law. 
Schweiss  v.  First  Judicial  Dist.  Ct.  23  Nev. 
226,  45   Pac.  289,  %    34:  602 

24.  Counties  are  not  included  among  the 
corporations  referred  to  in  Tenn.  Const,  art. 
11,  §  S,  prohibiting  the  creation  or  increase 
of  the  power  of  corporations  by  special 
laws.  Burnett  v.  Maloney,  97  Tenn.  697, 
37  S.  W.  689,  34:  541 

25.  A  county  as  a  municipal  corporation 
has  no  such  interest  in  or  right  of  possession 
to  the  reports  of  the  supreme  court  dis- 
tributed to  county  judges  in  accordance 
with  Neb.  Comp.  Stat.  1899,  chap.  19,  §  20, 
as  will  authorize  it  to  maintain  replevin 
proceedings  against  a  former  county  judge 
who,  after  the  expiration  of  his  term  of 
office,  retains  possession  of  such  reports  re- 
ceived by  him  in  his  official  capacity  while 
in  office;  but  the  right  to  the  possession  of 
such  books  is  in  the  county  judge  as  be- 
tween himself  and  all  others  except,  pos- 
sibly, the  state.  Clifford  v.  Hall  County,  60 
Neb.  506,  83  N.  W.  661,  50:  733 

26.  A  county  is  not,  in  the  exercise  of  its 
governmental  power,  privileged  to  dis- 
charge the  water-closets  of  its  courthouse 
onto  the  land  of  an  adjoining  owner  to  his 
injury.  Pearce  v.  Gibson  County,  107  Tenn. 
224,  64  S.  W.  33,  55:477 
Liability  to  county. 

For  Property  Taken  for  Public  Use,  see 
Eminent  Domain,  283. 

27.  Loaning  cash  and  securities  to  a 
county  treasurer,  knowing  him  to  be  an 
embezzler,  for  the  purpose  of  enabling  him 
to  conceal  his  embezzlement  by  showing 
the  money  and  securities  as  the  property  of 
the  county,  does  not  render  the  lender  lia- 
able  to  an  action  in  favor  of  the  county,  on 
the  ground  that  the  discovery  of  his  em- 
bezzlement and  opportunity  to  prosecute 
him  therefor  were  thereby  delayed.  Nel- 
son County  V.  Northcote,"  6  Dak.  378,  43 
N.  W.  897,  6:  230 
Payment  for  property  taken. 

28.  Compensation  to  be  made  to  a  land- 
owner for  land  taken  by  a  coimty  for  the 
location  of  a  public  road  must  \te  paid  out 
of  the  ordinary  county  revenue  raised  by 
the  limited  tax  provided  bv  Wyo.  Const, 
art.  15,  §  5.  Grand  Island  &  N.  "w.  R.  Co. 
V.  Baker,  6  Wyo.  369,  45  Pac.  494,  34:  835 
Payment  of  invalid  lien, 

29.  A  county  which  pays  claims  of  labor- 
era  and  material  men  for  which  invalid 
mechanics'  liens  have  been  filed  on  a  county 

L.R.A.  Dig.— 53. 


bridge,  and  takes  an  assignment  thereof,  ac- 
quires no  rights  thereby  and  cannot  set  up 
such  claims  or  the  payment  thereof  against 
a  contractor  who  built  the  bridge.  First 
Nat.  Bank  v.  Malheur  County,  30  Or.  420, 
45  Pac.  781,  35:  141 

Liability  to  pay  sheriff's  posse. 

30.  A  county  is  not  liable  for  services  ren- 
dered by  members  of  a  sheriff's  posse  comi- 
tatus,  in  the  absence  of  statutory  provisions 
for  their  compensation.  Sears  v.  Gallatin 
County,  20  Mont.  462,  52  Pac.  204,  40:  405 
Liability  for  torts  or  negligence  generally. 
Liability  as  to  Bridges,  see  Bridges,  II. 
Liability  for  Injury  by  Defective  Highway, 

see   Highways,   IV.   a. 
For  Injury  by   JBad  Condition  of  Jail,  see 

Jails,  3. 
For  Editorial  Notes,  see  infra,  HI.  §  4. 

31.  No  new  liability  for  torts  is  imposed 
upon  a  county  by  a  statute  making  it  a 
municipal  corporation  for  exercising  the 
powers  and  discharging  the  duties  of  local 
government  and  the  administration  of  pub- 
lic affairs,  and  providing  that  actions  for 
damages  for  any  injury  to  any  property  or 
rights  for  which  it  is  liable  shall  be  in  the 
name  of  the  county.  Markey  v.  Queens 
County,  154  N.  Y.  075,  49  N.  E.  71,     39:  46 

32.  A  county  is  liable  for  the  unauthor- 
ized and  unlawful  acts  of  its  officials  done 
colore  officii,  when  it  adopts  and  ratifies 
them  and  retains  and  enjoys  the  benefit 
thereof.  Schussler  v.  Hennepin  County 
Comrs.  67  Minn.  412,  70  N.  W.  6,       39:  75 

33.  Counties  being  subdivisions  of  the 
state  and  instrumentalities  of  government 
exercising  authority  given  by  the  state,  are 
no  more  liable  for  the  acts  or  omissions  of 
their  officers  than  the  state.  Jasper  County 
V.  Allman,  142  Ind.  573,  42  N.  E.  206, 

39:  58 

34.  When  the  law  itself  imposes  a  duty 
on  county  commissioners  as  such,  and  they 
are  not  appointed  thereto  by  the  county, 
the  county  will  not  be  responsible  for  their 
breach  of  duty,  or  for  their  nonfeasance  or 
misfeasance  in  relation  to  such  duty.  Ter- 
ritory ex  rel.  Choteau  County  v.  Cascade 
County,  8  Mont.  396,  20  Pac.  809,       7:  105 

35.  A  county  is  not  liable  for  injuries  re- 
ceived by  an  employee  from  a  defective  ma- 
chine in  an  asylum  which  was  maintained 
by  the  county  in  discharge  of  its  duty  as  a 
political  division  of  the  state  to  care  for 
its  insane.  Hughes  v.  Monroe  County,  147 
N.  Y.  49,  41  N.  E.  407,  39:  33 

36.  The  maintenance  of  a  county  asylum 
does  not  become  a  private  business  such 
that  the  county  is  liable  for  injuries  re- 
ceived by  employees,  by  reason  of  the  fact 
that  some  revenue  is  incidentally  derived 
by  the  county  from  the  sale  of  surplus 
farm  products  and  from  payments  made  by 
those  liable  for  the  support  of  insane  per- 
sons kept  in  the  asylum.  Id. 

39,  A  county  is  not  liable  for  the  pollu- 
tion of  a  stream  and  the  surrounding  at- 
mosphere by  sewage  from  its  penitentiary 
and  almshouse,  conducted  to  reservoirs  on  a 
nearby  farm  owned  by  it,  and  then  spread 
upon  the  land,  since  it  acts  in  the  matter 


884 


COUNTIES,  II.  b. 


in  its  governmental  capacity;  although  an 
injunction  to  abate  the  nuisance  may  be 
granted  against  the  oflRcers  in  charge  of  the 
buildings.  Lefrois  v.  Monroe  County,  162 
N,   Y.  ?63.  57    N.    E.    185,  50:  206 

Liability  for  acts  of  mob. 
Due  Process  as  to,  see  Constitutional  Law, 

658. 
Imposition   by   Legislature   of  Liability   for 
Death  by,  see  Constitutional  Law,  25na. 
Making  County  Liable  as  a  Taking  of  Prop- 
erty, see  Eminent  Domain,  228. 
Imposing   Penalty   for,  see  Jury,  44. 

38.  A  debt  is  not  created  against  a 
county,  within  the  meaning  of  111.  Const, 
art.  9,  §  12,  by  a  statute  making  the  county 
liable  to  owners  for  property  destroyed  by 
mobs  and  riots.  Chicago  v.  Manhattan  Ce- 
ment Co.  178  111.  372,  53  N.  E.  68,      45:  848 

39.  A  statute  compelling  a  county  to  pay 
three  fourths  of  the  value  of  property  de- 
stroyed by  a  mob  or  riot,  irrespective  of 
ability  or  exercise  of  diligence  to  protect 
the  property,  is  a  police  regulation  for  the 
better  government  of  the  state,  which  does 
not  violate  111.  Const,  art.  9,  §§  9,  10,  pro- 
hibiting statutes  to  impose  taxes  upon  mu- 
nicipal corporations  for  corporate  purposes. 
|!  Id. 

40.  A  county  may  be  liable  for  the  death 
of  a  person  by  mob  violence  under  .Ohio 
act  April  10,  1896,  although  the  individuals 
composing  the  mob  had  assembled  without 
any  unlawful  purpose,  and  had  not  after- 
wards specifically  agreed  to  be  a  mob. 
Champaism  County  v.  Church,  62  Ohio  St. 
318,  57  N.  E.  50,  48:  738 

41.  The  liability  of  a  county  "in  all  cases 
of  lynching  when  death  ensues,"  under  S.  C. 
Const,  art.  6,  §  6  (S.  C,  Acts  1896,  p.  213), 
is  not  limited  to  cases  in  which  the  persons 
lynched  were  prisoners  or  in  custody  of  the 
court,  although  the  provision  contains  the 
words  "without  regard  to  the  conduct  of 
the  officers,"  as  these  mean  that  this  liabil- 
ity is  without  reference  to  other  provisions 
respecting  the  lynching  of  prisoners.  Brown 
V.  Orangeburg  County,  55  S.  C.  45,  32  S.  E. 
764,  44:734 
Delegation  of  power. 

Delegation  of  Power  to  Counties,  see  Con- 
stitutional   Law,    211-213. 
For  Editorial  Notes,  see  infra,  III.  §  2. 

42.  The  treatment  and  cure  of  inebriates 
by  a  private  corporation  at  county  expense 
is  in  no  sense  the  performance  of  any  mu- 
nicipal function  within  the  prohibition  of 
Const,  art.  5,  §  35,  prohibiting  the  delega- 
tion of  such  fimctions.  Re  House,  23  Colo. 
87,  46  Pac.  117,  33:  832 

b.  Warrants;  Indebtedness. 

Adverse  Claim   on   Warrants,   see   Adverse 

Claim,   2. 
Compelling  Payment  of,  see  Mandamus,  80- 

84. 
As  to  County  Bonds,  see  Bonds,  III.  b. 

43.  Failure  of  the  legislature  to  provide 
compensation  for  an  attorney  who  is  ap- 
pointed by  the  court  to  conduct  disbarment 
proceedings    in    accordance    with    the    pro- 


visions of  the  statute  does  not  absolve  the 
county  from  liability  to  make  reasonable 
compensation  to  him  for  such  services. 
Hyatt  V.  Hamilton  County,  121  Iowa,  292, 
96  N.  W.  855,  63:  614 

Indebtedness  to  other  county, 
Runnjng  of  Limitations  as  to,  see  Limita- 
tion of  Actions,  81,  82,  183. 

44.  A  claim  given  by  a  special  statute  in 
favor  of  one  county  against  another  need 
not,  unless  required  by  such  act,  be  au- 
thenticated, as  required  in  the  case  of  ordi- 
nary claims  against  counties.  Perry  County 
V.  Conway  County,  62  Ark.  430,  12  S.  W, 
877,  6:  665 

45  A  proportion  of  the  debt  of  a  county 
may  be  imposed  upon  another  county  to 
which  territory  detached  from  the  former 
is  attached,  not  merely  by  the  act  segregat- 
ing the  territory,  but,  if  that  is  silent  on 
the  subject,  by  subsequent  legislation.       Id. 

46.  The  county  of  Cascade,  under  the 
Montana  act  of  September  12,  1887,  provid- 
ing that  it  "shall  be  liable  for  and  shall 
pay  the  sum  of  $30,000"  to  the  county  of 
Choteau,  from  which  it  was  created,  giving 
it  the  option  to  cause  warrants  to  be  issued, 
which  on  being  indorsed,  "Not  paid  for 
want  of  funds,"  shall  bear  interest,  or  to 
issue  coupon  bonds  and  sell  them, — cannot 
discharge  the  debt  by  delivery  of  the 
bonds,  but,  if  it  issues  the  bonds,  must 
convert  them  into  cash  and  pay  the  debt. 
Territory  ex  rel.  Choteau  County  v.  Cas- 
cade County,  8  Mont.  396,  20  Pac.  809, 

7:  105 
Limit  of  indebtedness. 

Limit  of  Municipal  Indebtedness,  see  Munic- 
ipal Corporations,  II.  e,  2. 
For  Editorial  Notes,  see  infra,  111.  §  3. 

47.  The  provision  of  Mo.  Const,  art.  10,  § 
12,  that  "no  county  shall  be  allowed  to  be- 
come indebted,  in  any  manner  or  for  any 
purpose,  to  an  amount  exceeding  in  any 
year  the  income  and  revenue  provided  for 
such  year,"  is  to  be  construed  as  referring 
to  that  class  of  debts  which  it  is  optional 
with  the  county  court  or  other  governing 
body  of  the  county  to  incur,  and  not  to  com- 
pulsory obligations  cast  on  the  county  by 
operation  of  law.  Barnard  v.  Knox  County. 
37  Fed.  563,  2:  426 

48.  A  constitutional  limitation  on  the 
amount  of  county  indebtedness  applies  to 
a  debt  for  necessary  books  and  stationery 
which  it  is  made  by  statute  the  duty  of  the 
county  clerk  to  purchase  for  his  office,  as 
well  as  to  any  other  obligation.  Barnard  v. 
Knox  County,  105  Mo.  382,  16  S.  W.  917, 

13:  244 

49.  In  determining  whether  or  not  county 
indebtedness  violates  a  constitutional  pro- 
vision that  no  county  shall  create  any  in- 
debtedness exceeding  2  per  cent  upon  the 
assessed  value  of  the  taxable  propertv  in  it, 
compulsory  oblieations  imposed  bv  the  lesr- 
islature  must  be  included.  Grand  Island  & 
N.  W.  R.  Co.  v.  Baker,  6  Wyo.  369,  45  Pac. 
494,  34:  835 

50.  A  prohibition  against  county  indebt- 
edness for  any  other  than  strictly  county 
purposes  will  not  prevent  indebtedness  for 


COUNTIES,  II.  c. 


885 


a  public  eanal  through  the  county  to  connect 
two  large  public  water  ways  with  the  ocean. 
Lancey  v.«King  County,  15  Wash.  9,  45  Pac. 
645,  34:  817 

51.  A  judgment  against  a  county  for  a 
claim  which  should  have  been  paid  out  of 
current  revenue,  but  was  not  because  the 
amount  limited  by  the  Constitution  was 
exhausted,  and  which  did  not  become  valid 
county  indebtedness  because  the  constitu- 
tional limit  of  indebtedness  had  already 
been  reached,  or  because  it  was  not  legally 
adopted  by  the  people,  is  not  "public  debt" 
within  the  meaning  of  a  provision  of  a 
Constitution  limiting  the  tax  rate  except 
for  public  debt  and  interest  thereon.  Grand 
Island  &  N.  W.  R.  Co.  v.  Bakey,  6  Wyo. 
369,  45  Pac.  494,  "    34:  835 

52.  Necessary  expenditures  made  manda- 
tory in  the  Constitution,  and  provided  for 
by  the  legislature  of  the  state,  and  im- 
posed upon  a  county,  are  not  within  the 
limitation  of  county  indebtedness,  made  by 
Wash.  Const,  art.  6,  §  6.  Ranch  v.  Chap- 
man, 16  Wash.  568,  148  Pac.  253,  36:  407 
Warrants. 

Cancelation  of,  in  Equity,  see  Equity,  62, 
63. 

Interest  on,  see  Interest,  95,  96. 

Mandamus  to  Compel  Payment  of,  see  Man- 
damus,   81-83,    187. 

Party  to  Suit  to  Enjoin  Payment  of,  see 
Parties,  128. 

Ab  to  Municipal  Warrants,  see  Municipal 
Corporations,  334-338. 

See  also  supra,  46. 

53.  Warrants  or  orders  directed  to  the 
county  treasurer,  and  expressed  upon  their 
face  to  be  "chargeable  under  the  head  of 
county  expenditures,"  or  to  be  payable  "out 
of  any  money  in  the  treasury  appropriated 
for  county  purposes,"  are  prima  facie  valid 
claims  against  the  county,  when  issued  by  a 
clerk  of  the  court  who  is  ex  officio  auditor, 
and  whose  official  duty  it  is  to  audit  all 
accounts  against  the  county  and  keep  on. 
file  vouchers  therefor,  and  who  cannot  legal- 
ly audit  accounts  until  they  are  approved 
by  the  county  commissioners.  Ray  v.  Wil- 
son, 29  Fla.  342,  10  So.  613,  14:  773 

54.  An  order  of  a  board  of  county  com- 
missioners requiring  that  county  warrants 
previously  issued  shall  be  presented  for  re- 
examination by  the  board,  and  providing 
that  all  such  scrip  not  presented  by  a 
stated  day  shall  be  of  no  effect,  or  "repu- 
diated," is,  though  published  according  to 
the  terms  of  the  order,  no  defense  to  the 
payment  of  warrants  not  presented.         Id. 

55.  A  good -faith  purchaser  of  county  war- 
rants occupies  no  better  position  than  the 
seller,  as  they  are  non-negotiable  withm  the 
meaning  of  the  law  merchant.  Erskine  v. 
Steele  County,  4  N.  D.  339,  60  N.  W.  1050. 

28:  645 

56.  A  portion  of  a  county  warrant  issued 
by  the  county  commissioners,  which  repre- 
sents the  discount  at  which  the  warrant 
will  be  sold,  is  illegal  and  void.  Id. 

57.  A  county  warrant  issued  by  the  com- 
missioners of  a  newly  formed  county,  in  the 
absence   of  legislative  authority,  for  tran- 


scribing from  the  records  of  the  counties  out 
of  which  it  is  formed  such  part  as  relates  to 
real  estate  situated  in  the  former  county,  is 
illegal  and  void.  Id. 

58.  A  statute  may  so  far  validate  void 
county  warrants  theretofore  issued  that  the 
plea  of  ultra  vires  cannot  thereafter  be  in- 
terposed as  a  defense  thereto;  but  the  pur- 
pose to  validate  them  must  be  clearly  ex- 
pressed by  the  legislature,  or  be  deducible 
from  the  statute  by  necessary  implication. 
Erskine  v.  Nelson  County,  4  N.  D.  66,  58  N. 
W.  348,  27 :  696 

c.  Power  to  Tax;  County  Purposes. 

Due  Process  as  to,  see  Constitutional  Law, 

658. 
To  Pay  Militia,  see  Militia,  5. 
For  Maintenance  of  Armory,  see  Militia,  12. 
Purposes  for  which  Public  Money  may  be 

Used,  see  Public  Moneys,  II. 
Special  Legislation  as  to,  see  Statutes,  362, 

365,  366. 
As  to  Taxes  Generally,  see  Taxes. 
Amount  of  Tax  Rate,  see  Taxes,  353. 
Special    County    Tax    for    Deficiency,    see 

Counties,  69. 
See  also  supra,  42,  50,  51. 

Payment  of  judgment. 

59.  The  fact  that  the  validity  of  the  debt 
on  which  a  judgment  against  a  county  was 
rendered  cannot  be  questioned  in  a  proceed- 
ing to  enforce  a  tax  to  pay  it  does  not  pre- 
vent a  resistance  of  the  tax  on  the  ground 
that  it  was  not  authorized  by  law.  Grand 
Island  &  N.  W.  R.  Co.  v.  Baker,  6  Wyo.  369, 
45  Pac.  494,  34:  835 

GO.  Recourse  to  the  claims  upon  which 
judgments  against  a  county  were  rendered 
may  be  had  to  determine  to  what  class  they 
belong,  and  whether  or  not  any  limit  is  im- 
posed upon  taxation  by  which  they  may  be 
enforced.  Id. 

Payment  of  bridge  bonds. 

61.  The  requirement  that  a  county  shall 
pay  the  debt  of  a  city  within  it,  made  by 
Or.  act  1895,  providing  for  a  county  tax  to 
pay  the  interest  and  principal'  on  the  bridge 
bonds  of  the  city  of  Portland,  is  unconsti- 
tutional. Simon  v.  Northup,  27  Or.  487,  40 
Pac.  560,  30:  171 
Roads  and  bridges. 

Necessity  of  Appropriation  for,  see  Appro- 
priations, 3,  4. 
Repeal  of  Statute  as  to,  see  Statutes,  585. 
See  also  supra,  61;  rublic  Moneys,  54. 

62.  The  constitutional  provision  that  mon- 
ey raised  by  county  taxes  should  not  be  used 
for  other  than  county  purposes  is  not  vio- 
lated by  Fla.  Acts  1891,  chap.  4014,  §  17,  pro- 
viding that  half  the  funds  raised  for  county 
roads  and  bridges  shall  be  turned  over  to 
municipal  authorities  for  town  or  city 
streets.  Duval  County  Comrs.  v.  Jackson- 
ville, 36  Fla.  196,  18  So.  339,  29:  416 

63.  Under  the  Constitution  and  laws  of 
Florida,  a  county  cannot  impose  taxes  ex- 
cept for  county  purposes;  and  the  building 
of  a  bridge  in  a  county,  within  the  corpor- 
ate limits  of  a  municipality,  in  which  the 
county  outside  of  those  limits  is  in  nowise 


886 


COUNTIES,  n.  d. 


interested,  the  same  being  for  the  sole  bene- 
fit and  advantage  of  the  municipality,  is  not 
a  county  purpose.  Skinner  v.  Henderson, 
26  Fla.  121,  7  So.  464,  8:  5o 

64.  If  a  county  may  build  a  bridge  with- 
in the  limits  of  a  municipality  when  the  cir- 
cumstances suit,  it  may  also  aid  the  munic- 
ipality in  building  one  under  like  circum- 
stances, even  though  it  is  to  be  constructed 
under  a  contract  with  the  municipality,  and 
is  to  be  imder  its  control.  Id. 
Improvements  of  navigation. 

65.  The  work  of  improving  the  naviga- 
tion of  a  river  and  removing  obstructions 
therefrom  within  a  county  is  a  county  pur- 
pose, within  the  meaning  of  a  constitutional 
provision  that  the  legislature  shall  author- 
ize counties  to  raise  taxes  for  county  pur- 
poses, although  the  river  is  a  navigable 
stream  and  public  highway  for  interstate 
and  foreign  commerce,  running  far  beyond 
the  limits  of  the  county,  and  the  commerce 
and  business  of  the  river  within  the  county 
limits  is  very  small  and  of  no  importance. 
Stockton  V.  Powell,  29  Fla.  1,  10  So.  688, 

15:42 
Maintenance  of  courts. 

66.  The  expense  of  maintaininsr  the  dis- 
trict court  is  a  county  purpose  which  must 
be  provided  for  out  of  the  fund  raised  by 
the  limited  tax  levy  authorized  by  Wyo. 
Const,  art.  15,  §  5.  Grand  Island  &  N.  W. 
R.  Co.  V.  Baker,  6  Wyo.  369,  45  Pac.  494, 

34:  835 
Water  supply. 

67.  Providing  an  adequate  supply  of  wa- 
ter for  municipal  domestic  purposes  in  one 
of  the  communities  of  a  county  is  a  matter 
pertaining  to  the  interests  of  the  county, 
and  is  a  legitimate  county  purpose,  within 
the  meaning  of  N.  M.  Comp.  Laws  1807,  § 
604,  U  5,  empowering  county  commissioners 
to  have  the  management  of  the  interests  of 
the  county,  and  §  651,  %  4,  giving  a  county 
power  "to  make  all  contracts  and  do  all 
other  acts  in  reference  to  the  property  and 
concerns  necessary  to  the  exercise  of  its  cor- 
porate or  administrative  powers."  Agiia 
Pura  Co.  v.  Las  Vegas,  10  N.  M.  6,  60  Pac. 
208,  50:  224 
Buildings  of  state  agricultural  station. 

68.  A  county  cannot  be  taxed  for  the  site 
and  construction,  of  buildings  of  a  state 
agricultural  station,  to  secure  its  location 
within  the  county,  under  a  constitutional 
provision  which  requires  all  taxes  for  gen- 
eral revenue  for  the  state  to  be  levied  by  a 
uniform  rule  upon  all  the  taxable  property 
within  the  state,  since  a  tax  for  such  pur- 
pose is  general  revenue  for  the  state,  al- 
though incidental  benefits  may  accrue  to 
property  in  the  county  by  reason  of  such 
location.  Wasson  v.  Wayne  County  Comrs. 
49  Ohio  St.  622.  32  N.  E.'  472,  17 :  795 
Deficiency  in  school  fund. 

69.  A  special  tax  by  county  commission- 
ers to  supply  a  deficiency  in  the  amount 
necessary  to  keep  the  public  schools  ppen 
for  at  least  four  months  in  the  year,  as  re- 
quired by  N.  C.  Const,  art.  9,  §  3,  is  not  a 
tax  "for  a  special  purpose"  under  art.  5,  § 
6,  which  limits  the  amount  of  county  taxes 


to  double  the  state  tax  "except  for  a  spe- 
cial purpose  and  with  the  approval  of  the 
general  assembly."  Bladen  County  Bd.  of 
Edu.  V.  Bladen  County,  111  N.  6.  578,  16 
S.  E.  621,  18:  850 

Public  fair  or  exposition. 
What  will  Avoid  Appropriation  for,  see  Ap- 
propriations, 1. 
Use  of  Public  Funds  for,  Generally,  see  Pub- 
lic Moneys,  18-21. 

70.  The  expense  of  placing  blocks  of  stone 
from  a  county  in  a  state  building  at  the 
Columbian  World's  Fair  cannot  be  made  a 
county  tax.  Hayes  v.  Douglas  County,  92 
Wis.  429,  65  N.  W.  482,  31:  213 

71.  An  exhibition  of  the  resources  of  a 
county  at  a  state  centennial  exposition  is  a 
county  purpose  within  the  meaning  of  a 
constitutional  provision  authorizing  taxa- 
tion for  county  purposes.  Shelby  County 
V.  Tennessee  Centennial  Exposition  Co.  96 
Tenn.  653,  36  S.  W.  694,  33:  717 

72.  The  fact  that  a  state  exposition  is  be- 
yond the  territorial  limits  of  a  county  does 
not  show  that  a  county  exhibition  there  is 
not  for  a  county  purpose.  Id. 

73.  The  public  schools  of  a  county  may  be 
classed  among  her  "resources,"  within  the 
meaning  of  a  statute  and  resolutions  of  a 
county  court  for  an  exhibit  of  the  county 
resources  at  a  state  exposition.  Id. 
Prerequisites  to  refunding  of  illegal  tax. 
Recovery  Back  of  Taxes  Paid,  see  Assump- 
sit, 48,  52,  54,  55,  58. 

74.  Suit  for  the  refunding  of  an  illegal 
tax  cannot  be  maintained  against  the  coun- 
ty until  the  claim  has  been  presented  to  the 
board  of  supervisors,  under  a  statute  provid- 
ing that  that  board  shall  direct  the  treas- 
urer to  refund  illegal  taxes.  Bibbins  v. 
Clark,  90  Iowa,  230,  59  N.  W.  290,      29:  278 

d.  Contracts;   Power  and  Procedure  of  Of- 
ficers. 

Mode  of  Action  by   Board  of  Supervisors, 

see  Boards,  4. 
Delegation  of  Power  to  County  Board,  see 

Constitutional  Law,  211-213. 
Constitutional    Provision    as    to    Term    of 

Commissioner,  see  Constitutional  Law, 

51. 
Power   of    Officers  as  to    Courthouse,    see 

Courthouse. 
Power  as  to  Running  of  Elevators  in  Court- 
house, see  Courts,  5. 
Powers    of   Drain    Commission,   see    Drains 

and  Sewers,  1. 
Evidence  of  Recitals  in  Records  of  Board, 

see  Evidence,  2309. 
Injunction  against  Contract,  see  Injunction, 

344,  345. 
Power  to  Reduce  Number  of  Justices,  see 

Justice  of  the  Peace,  3. 
Mandamus  to  Officer,  see  Mandamus,  I.  d. 
Power  of  County  Board  to  Annex  Territory 

to  City,  see  Municipal  Corporations,  23. 
Who  are  County  Officers,  see  Officers,  60,  62. 
Double  Nature  of  Office,  see  Officers,  3,  87. 
Liability   of   Officers,   see   Officers,   207. 
Salary  *of    Officers,    see    Officers,    178,    183, 

185-187,  189,  190. 


COUNTIES,  II.  d. 


837 


Special  Legislation  as  to  Salaries  of  Depu- 
ties, see  Statutes,  405. 

Compensation  of  Probate  Judge  as  County 
Officer,  see  Judges,  60. 

Election  of  County  Superintendent,  see  Par- 
liamentary Law,  2. 

Casting  Vote  by  Auditor,see  Parliamentary 
Law,  34. 

Subscription  by,  in  Aid  of  Railroad,  see 
Railroads,  31-33. 

Special  Legislation  as  to  Formation  of  Gov- 
erning Board  of,  see  Statutes,  318. 

As  to  County  Treasurer,  see  County  Treas- 
urer. 

See  also  supra,  3,  4,  18,  32-34. 

75.  Officials  in  charge  of  the  financial 
affairs  of  a  county  have  no  authority  in 
law  to  purchase  vaccine  matter,  And  make 
the  cost  of  the  same  a  charge  against  the 
countv.  Daniel  v.  Putnam  County,  113  Ga. 
570,  38  S.  E.  980,  54:  292 

76.  A  contract  by  a  county  to  build  a 
bridge  is  not  authorized  by  an  appropriation 
for  preliminary  work,  estimates,  etc.,  to- 
wards securing  such  bridge.  Fones  Bros. 
Hardware  Co.  v.  Erb,  54  Ark.  645,  17  S.  W. 
7,  ,  13:353 

77.  County  commissioners  are  not  author- 
ized to  enter  into  contracts  for  the  care  and 
support  of  persons  in  the  connty  asylums 
for  the  poor,  which  are  organized  solely 
for  the  purpose  of  public  charity  and  be- 
nevolence; hence,  no  recoverv  can  be  had 
by  them  upon  a  contract  to  pay  for  care 
and  support  furnished  to  an  insane  person. 
Montgomerv  County  v.  Ristine,  124  Ind. 
242,  24  N.  E.  990,  8:  461 
Power  of  board  to  confess  judgment. 

78.  A  board  of  county  commissioners 
which  can  only  act  as  a  body  in  session  can- 
not confess  judgment  against  the  county  im- 
der  a  statute  requiring  defendant  to  per- 
sonally appear  in  court  in  order  to  confess 
judgment.  Grand  Island  &  N.  W.  R.  Co.  v. 
iBaker,  6  Wyo.  369,  45  Pac.  494,  34:  835 

79.  A  power  of  attorney  to  confess  judg- 
ment cannot  be  given  by  a  board  of  county 
commissioners  without  statutory  authority. 

Id. 
Power  to  buy  and  sell  property. 

80.  A  sale  and  conveyance  of  an  academy 
by  a  county  to  a  presbytery  is  void  unless 
made  under  legislative  authority.  Jefferson 
Countv  Supers,  v.  Grafton,  74  Miss.  435.  21 
So.  247,  36:  798 

81.  The  power  of  a  county  to  buy  land 
cannot  be  questioned  by  one  who  claims  un- 
der the  county's  title,  but  that  question  is 
one  which  the  state  only  can  raise.  '  Id. 
Contract  beyond  term  of  office. 

82.  A  contract  for  the  employment  of  a 
keeper  of  a  connty  poorhouse  for  three 
years  is  not  within  the  power  of  a  board  of 
supervisors,  each  of  whom  is  elected  for  one 
year  only,  althousrh  the  statute  gives  them 
power  to  anp"int  such  keeper  without  any 
exprepn  limitation  as  to  the  time.  "NTill'kin 
V.  Edgar  County,  142  111.  528,  32  N.  E.  40.'^. 

18:447 

83.  A  contract  by  which  a  board  of  coun- 
ty commissioners  attempts  to  employ  a 
legal  adviser  for  a  period  of  three  years,  to 


commence  three  months  in  the  future  and 
'  after  the  time  for  the  election  of  a  person 
to  fill  the  vacancy  caused  by  the  expira- 
tion of  the  term  of  office  of  one  member  of 
the  board,  the  term  of  employment  extend- 
ing over  a  period  during  which  all  the  mem- 
bers of  the  board  as  constituted  at  the  time 
of  the  contract  will  retire  therefrom  unless 
re-elected,  is  against  public  policy  and  void. 
Jay  County  v.  Taylor,  123  Ind.  148,  23  N. 
E.  752,  7:  160 

84.  A  board  of  county  commissioners  can- 
not bind  or  tie  the  hands  of  their  successors 
in  office  by  making  a  designation  of  news- 
papers for  publications  and  printing  which 
shall  continue  for  longer  than  one  year. 
Sheldon  v.   Fox,  48  Kan.   356,  29  Pac.  759, 

16:  257 
Place  of  meetings  of  board. 

85.  Action  at  a  meeting  not  held  at  the 
county  courthouse  as  required  by  law,  by 
a  board  of  supervisors,  whereby  they  con- 
sider a  petition  for  a  local-option  election 
and  make  an  order  therefor,  is  void,  and 
cannot  give  validity  to  an  election  based 
thereon.  Harris  v.  State  ex  rel.  Dolan,  72 
Miss.  9G0,  18  So.  387,  33:  85 

86.  The  law  requiring  the  board  of  super- 
visors to  meet  "at  the  courthouse"  is  not 
complied  with  by  meeting  in  another  build- 
ing outside  the  inclosure  of  the  courthouse 
lot,  although  it  had  one  door  which  opened 
into  such  inclosure, — especially  when  the 
meetinsr  was  held  in  a  room  which  had  no 
interior  connection  with  such  inclosure.  Id. 
Private  sessions  of  board. 

87.  A  statute  requiring  a  county  board  of 
revenue  to  act  in  private  when  passing  on 
any  claim  or  awarding  a  contract  does  not 
violate  a  constitutional  provision  that 
coi:rts  must  be  open,  since  in  such  matters 
it  is  not  in  the  exercise  of  judicial  power. 
State  ex  rel.  Bragg  v.  Rogers,  107  Ala.  444, 
19  So.  909,  32:  520 
Adjourned  meetings  of  board. 

88.  The  statutory  provisions  naming  the 
time  for  trustees  to  convene  in  order  to  ap- 
point a  county  superintendent  are  directory 
only,  and  the  failure  to  get  a  quorum  on 
that  day  does  not  prevent  a  meeting  for 
that  purpose  on  a  subsequent  day.  Wamp- 
ler  V.  State  ex  rel.  Alexander,  148  Ind.  557, 
47  N".  E.   1068,  38:  829 

89.  Wliere  a  regular  meeting  of  a  board 
of  county  commissioners  adjourns  to  a  sub- 
sequent day,  all  the  members  being  present, 
each  member  is  charged  with  the  official 
duty  of  attending,  and  with  notice  of  any 
lawful  action  to  he.  taken  at  such  adjourned 
meetins;  and  anything  done  at  such  meet- 
ing within  the  power  of  the  board  to  do  is 
not  rendered  invalid  by  the  fact  that  one 
member  did  not  attend  it.  Stockton  v.  Pow- 
ell, 29  Fla.  1,  10  So.  688,  15:  42 

90.  A  special  meeting  of  a  board  of  coun- 
ty commissioners,  of  which  each  commis- 
sioner has  been  duly  notified,  may  be  ad- 
iourned  to  a  subsequent  day  by  the  mem- 
bers present, — a  majority  of  the  entire 
board;  and  it  seems  that  less  than  a  ma- 
jority may  do  so.  The  members  present  at 
such  meeting  have  actual  notice  of  the  ad- 


COUNTIES,  IIL— COUNTY  SEAT. 


joumment,  and  those  not  present  are 
charged  in  law  with  notice  thereof,  and  the 
adjourned  meeting  is  but  a  continuation  of 
the  original  one;  and  anything  done  at  the 
adjourned  meeting,  concerning  the  matter 
for  which  the  meeting  was  originally  called, 
is  as  legal  as  if  it  had  been  done  before  the 
adjournment.  Id. 

Allowance  by  board. 

91.  The  action  of  county  commissioners 
on  petition  under  Ind.  Acts  1893,  p.  741, 
which  says  the  board  "may  fix  and  allow  a 
certain  sum"  within  prescribed  limits  and 
that  any  such  allowance  and  the  proceed- 
ings of  the  board  in  relation  thereto,  "if  in 
conformity  with  the  provisions  of  this  act, 
shall  be  final  and  conclusive,"  is  an  exer- 
cise of  the  discretion  of  the  board,  and  is 
not  a  judicial  act  from  which  an  appeal  can 
be  taken.  Vigo  County  Comrs.  v.  Davis, 
136  Ind.  503,  36  N.  E.  141,  22:  515 

92.  The  allowance  by  the  board  of  com- 
missioners of  a  claim  by  a  county  oflScer 
against  the  county,  in  violation  of  the  plain 
letter  of  the  statute,  is  not  binding  on  the 
county.  Gross  v.  Whitley  County  Comrs. 
158  Ind.  531,  64  N.  E.  25,  58:  394 


in.  Editorial  Notes. 

§  1.  Generally. 

As  quasi  corporations.     1:  757.* 
Garnishment   of.      37:207. 
Extrinsic  evidence  to  show  unconstitution- 
ality of  statutes  incorpo- 
rating   counties.      14:  459. 
Legislative    power    to    change    boundaries. 

1:757.* 
By  whom  action  affecting  counties  must  be 

brought.     64:  619. 
§  2.  Powers. 

Delegation  of  legislative  power  to   county 
boards  of  supervisors.  16: 
161. 
As  trustees  of  charities.     14:  70. 
§  3.  Liabilities. 
Constitutional  limitation  on  debts.    2:  426;* 

6:  665.* 

Liability  for  imprisonment  of  person  in  un- 

healthful   or   unfit   prison. 

36:  293. 

§  4.  Liability  of  county  in  actions  for  torts 

and  negligence. 
Injuries   to   travelers   and  vehicles.     39:  33. 
By  bridges  and  approaches  being  out  of 
repair.     39 :  33. 
Implied  liability.    39:  33. 
Where    statute    imposes    liability. 
39:  46. 
From    defective    roads    and    highways. 

39:  53. 
Where  the  injury   was   caused  by  the 
fright  of  a  horse.     39:  56. 
By  negligence  of  employee.     39:  59. 
Injuries  to  other  persons.     .39:  59. 

From  condition  of  buildings.     39:  59. 
Generally.     39:  .59. 
On  account  of  escape  from  prison. 
39 :  60. 
By  negligence  or  wrongful  act  of  em- 
ployee.    39:  62. 


Injuries  to  real  property   from   public  im- 
provements.    39:  63. 
Generally.     39 :  63. 
By     construction     and     operation     of 

bridges.     39:  65. 
By  roads.     39 :  68. 

By  ditches,  canals,  and  dams.     39:  69. 
By   buildings.     39:  70. 
Other  wrongful  and  negligent   acts   afifect- 
ing    persons    or    property. 
39:  71. 
Generally.     39:  71. 
Affecting  property.     39:  72. 
Infringement  of  patent*.     39:  73. 
Damages   by   defaulting  officer.     39:  74. 
By    misapplication,    conversion,    or    taking 

property.     39:  75. 
Presentation  of  claims  before  county  board 
as    a    condition    precedent 
to  suit.    39 :  77. 
§  5.  County  seat. 
Bribery  in  vote  for.     15:  501. 
Establishment  of.     13:  174.* 


COUNTS. 

In  Pleading,  see  Pleading,  14,  15,  213,  219. 
Election  between,  see  Trial,  I.  b. 


♦  *  » 


COUNTY  ATTORNEY. 
See  District  and  Prosecuting  Attorneys. 
4  >  » 
COUNTY  AUDITOR. 
See   Auditors. 

■♦•» 


COUNTY  CLERK. 

Eligibility  of  Women  to  Office  of,  see  Offi- 
cers, 17,  18. 
Salary  of,  see  Officers,  178,  189. 


COUNTY  COMMISSIONERS. 

Certiorari  to,  see  Certiorari,  15,  43. 
See  also  Counties,  II.  d. 


COUNTY  RECORDER. 


Delegation  of  Power  to,  see  Constitutional 
Law,  235-240. 


COUNTY  SEAT. 
See  Counties,  I.  b. 


COUNTY  SOLICITOR— COUPONS. 
COUNTY  SOLICITOR.  COUPONS. 


Compensation  of,  see  Officers,  190. 


COUNTY  SUPERINTENDENT. 
Tie  Vote  for,  see  Parliamentary  Law,  34. 


COUNTY  TREASURER. 

Bond  of,  see  Bonds,  II.  c. 

Premature  Action  on  Bond  of,  sep  Action  or 
Suit,  19.  " 

Liability  for  Lending  to,  to  Conceal  Embez- 
zlement by,  see  Counties,  27. 

Injunction  against,  see  Money  in  Court,  4. 

Liability  for  Interest,  see  Compromise  and 
Settlement,  16;  Interest,  62-64. 

Res  Judicata  as  to  Right  to  Compensation, 
see  Judgment,  88. 

Mandamus  to,  see  Mandamus,  69,  81-84. 

Rights  of,  as  to  Public  Money,  see  Public 
Moneys. 

Deposits  by,  see  Public  Moneys,  7. 

Subrogation  of,  to  Tax  Lien,  see  Subroga- 
tion, 30. 

1.  A  county  treasurer  does  not  become  en- 
titled to  the  compensation  allowed  by  a  prior 
act  during  the  time  in  which  a  decision  hold- 
ing void  the  act  in  force  when  he  took  office 
remains  unreversed;  but  upon  the  reversal 
of  such  decision  his  rights  since  he  entered 
upon  the  discharge  of  his  duties  are  governed 
by  the  later  act.  Gross  v.  Whitley  County 
Comrs.  158  Ind.  531,  64  N.  E.  25,        58:  394 

2.  A  county  treasurer  is  not  entitled  to 
compensation  under  the  statute  in  force  dur- 
ing his  first  term  for  services  performed  dur- 
ing his  second  term,  when  a  diff"erent  statute 
was  in  force,  on  the  ground  that  he  was  pre- 
vented by  injunction  from  performing  them 
during  his  first  term.  Id. 

3.  Interest  received  by  a  county  treasurer 
after  ne  has  gone  out  of  office,  on  account  of 
money  deposited  by  him  in  a  bank  while  in 
office,  without  any  agreement  for  interest, 
cannot  be  recovered  from  him  by  the  county, 
where  there  is  no  statutory  provision  re- 
quiring him  to  account  for  such  interest,  and 
the  law  expressly  prohibits  him  from  loan- 
ing the  money,  either  with  or  without  inter- 
est. Maloy  V.  Bernalillo  County  Comrs.  10 
N.  M.  638,  62  Pac.  1106,  52:  126 


COUPLERS. 


Negligence  as  to,  see  Master  and  Servant,  90. 

183-193,  201. 
Assumption  of  Risk  as  to,  see  Master  and 

Servant,   321,  326. 
Contributory  Megligence  as   to,  see  Master 

and  Servant,  408-413. 


As  Affecting  Negotiability  of  Note,  see  Bills 

and  Notes,  75. 
Notice  by  Recitals  in,  see  Bonds,  90. 
Estoppel   as   to,   by   Recitals   in   Bond,   see 

Bonds,  156. 
For  Repayment  of  Extra  Fare  Charged,  see 

Carriers,  637. 
Juri.'sdiction  of  Suit  on,  see  Courts,  344. 
Evidence  as  to  Liability  on,  see  Evidence, 

2093. 
Interest  on,  see  Interest,  14,  15,  100. 
Limitation  of  Action  on,  see  Limitation  of 

Actions,  47. 
Secured  by  Mortgage,  see  Mortgage,  149,  158, 

217. 
Retaining  Amount  of  Tax  From,  see  Taxes, 

526. 

1.  Although  an  action  may  be  maintained 
upon  coupons  for  interest  on  a  corporation 
mortgage  bond  without  the  production  of 
the  bond,  a  recovery  must  be  based  upon  the 
obligation  contained  in  the  bond,  and  no  re- 
covery can  be  had  contrary  to  the  agreement 
therein  expressed.  McClelland  v.  Norfolk  S. 
R.  Co.  110  N.  Y.  469,  18  N.  E.  237,        1:  299 

2.  The  cancelation  before  maturity  of  a 
negotiable  bond,  or  its  payment  to  the  hold- 
er, without  notice  to  a  bona  fide  holder  of 
negotiable  coupons  which  have  been  detached 
and  transferred  to  him,  cannot  affect  his 
rights.  Internal  Improv.  Fund  v.  Lewis,  34 
Fla.  424,  16  So.  325,  26:  743 

3.  The  first  coupon,  as  well  as  others,  is 
included  in  a  sale  of  bonds  to  a  syndicate 
without  any  exception  or  reservation  of  it 
from  the  sale,  although  there  is  a  provision 
that  two  thirds  of  the  first  payment  of  in- 
terest shall  be  paid  by  a  trustee  as  commis- 
sion, and  any  interest  in  that  coupon  is 
therefore  derived  through  the  syndicate,  and 
subject  to  the  rule  which  precludes  one  mem- 
ber from  secretly  obtaining  a  commission 
in  which  his  associates  do  not  share.  Balti- 
more Trust  &  G.  Co.  V.  Hambleton,  84  Md. 
456,  36  Atl.  597,  40:  216 
Assignment;  negotiability. 

4.  In  the  absence  of  an  express  agreement 
or  controlling  equity  to  the  contrary,  the  as- 
signment of  one  of  a  number  of  coupon  in- 
terest notes  secured  by  a  mortgage  carries 
with  it  a  pro  rata  share  of  the  security. 
Champion  v.  Hartford  Invest.  Co.  45  Kan. 
103,  25  Pac.  590,  10:  754 

5.  The  title  to  interest  coupons  passes 
from  hand  to  hand  by  mere  delivery.  Id. 

6.  Interest  coupons  on  negotiable  bonds 
may  be  detached  and  negotiated  separately 
by  simple  delivery,  and  sued  on  separately 
from  the  bond  after  the  bond  itself  has  been 
paid  and  satisfied,  as  well  as  uefore.  Inter- 
nal Iraprov.  Fund  v.  Lewis,  34  Fla.  424,  16 
So.  325,  26:  743 

7.  Coupons  that  are  payable  to  bearer,  and 
that  are  attached  to  and  represent  the  semi- 
annual instalments  of  interest  accruing  upon 
railroad  bonds,  are  in  legal  effect  promissory 
notes,  and  possess  all  the  attributes  of  nego- 
tiable paper.  Id. 


840 


COUPON  TICKETS— COURTS. 


COUPON  TICKETS. 
See  Carriers,  II.  a,  10,  6. 


COURTHOUSE. 

Authorizing  Circuit  Courts  to  Repair  Rooms, 
see  Constitutional  Law,  253. 

Locking,  as  a  Contempt  of  Court,  see  Con- 
tempt, 13. 

Order  to  Discharge  Water  Closets  of,  on  Ad- 
joining Land,  see  Counties,  26. 

Meeting  of  County  Board  at,  see  Counties, 
85,  86. 

Power  of  Court  over,  see  Courts,  3-5. 

Injunction  as  to  Control  or  Repair  of,  see 
Injunction,  274,  275. 

Use  of  Town  Funds  for  Building  of,  see  Pub- 
lic Moneys,  25. 

As  to  R;imoval  of  County  Seat,  see  Coun- 
ties, I.  b. 

As  to  Place  of  Sitting  of  Court,  see  Courts, 
314-317. 

1.  A  lease  of  rooms  in  a  courthouse  to  be 
used  for  private  purposes  cannot  be  lawfully 
made  by  county  commissioners  in  the  ab- 
sence of  statutory  authority.  State  ex  rel. 
Scott  V.  Hart,  144  Ind.  107,  43  N.  E.  7, 

33:  118 

2.  The  custody  and  care  of  the  courthouse 
and  jail,  given  to  the  sheriff  by  111.  Rev. 
Stat.  chap.  125,  §  14,  is  a  limitation  of  the 
provision  of  chap.  34,  §  25,  giving  to  the 
county  board  the  care  and  custody  of  all  the 
real  estate  owned  by  the  county.  Dahnke  v. 
People,  168  111.  102,  48  N.  E.  137,  39:  197 

3.  The  custody  of  the  courthouse,  which 
the  sheriff,  as  the  court's  executive  officer, 
has,  is  the  custody  and  care  of  the  building 
as  a  courthouse,  while  as  real  estate  simply 
it  is  in  the  care  and  custody  of  the  county 
board,  which  controls  the  title  and  keeps  it 
in  repair.  Id. 

4.  An  assignment  of  the  different  court 
rooms  in  the  courthouse  to  the  different 
judges  of  the  courts  of  record  is  not  within 
the  power  of  the  county  board  under  stat- 
utes requiring  the  board  to  provide  a  court- 
house and  proper  rooms  and  offices  for  the 
accommodation  of  such  courts;  but  it  rests 
with  the  judges  -of  the  courts  to  arrange 
among  themselves  how  they  will  occupy  the 
several  court  rooms  provided  by  the  board. 

Id. 

5.  The  power  to  manage  county  affairs, 
given  to  the  county  board  by  111.  Const. 
1870,  art.  10,  §  7,  does  not  include  the  power 
to  assign  court  rooms  to  the  different  judges 
of  the  courts  of  record.  Id. 

Editorial  Notes. 

Mechanics'  lien  on.     35:  142. 

Lease  or  license  of,  for  private  use.    33:  118. 


COURT  OF  CLAIMS. 


Jurisdiction  of,  see  Courts,  326. 
See  also  Alabama  Claims. 

Editorial  Notes. 
Act  creating.    2:  572.* 


COURT  OF  VISITATION. 

Delegation  of  Power  to,  see  Constitutional 
Law,  191. 


COURT  ROOM. 


Liability  of  Judge  for  Excluding  Spectator 
from,  see  Judges,  62. 


COURT  RULES. 


For  Admission  of  Attorneys,  see  Attorneys, 
1,  a,  2,  14. 


COURTS. 

I.  Jurisdiction  and  Powers  in  General. 

a.  In  General;  Inherent  Powers. 

b.  Over      Nonresidents;      Territorial 
Limitations. 

1.  Generally. 

2.  Crimes. 

3.  Real  Property, 
o.  In  General. 

b.  In  Other  State. 

4.  Foreign  Corporations. 

c.  Relation  to  Other  Departments  of 

Government. 

1.  In    General;     Political    Ques- 

tions. 

2.  Legislative  Department;  Stat- 

utes, 
o.  In  General. 
6.  Police  Power. 

c.  Public  Purpose;  Tax;  Em- 

inent Domain. 

d.  Offices;   Elections. 

e.  Regulation    of    Business; 

License. 

3.  Municipal  Matters. 

a.  In  General. 

b.  Review  of  Ordinances. 

d.  Jurisdiction      Over      Associations, 

etc.;    Conclusiveness   of   De- 
cisions of  Their  Tribunals. 

1.  Associations  Generally. 

2.  Religious  Societies. 

e.  Legislative  Power  as  to. 

f.  Power  of  Municipality  Over. 

g.  Loss  of  Jurisdiction. 

II.  State  and  Territorial  Courts. 

a.  Jurisdiction. 

1.  In  General. 

2.  Original  Jurisdiction  of  Appel- 

late   Court;    Superintending 
Control. 

3.  As  Dependent  on  Amount. 

4.  Matters  as  to  Title. 

5.  Trusts;  Probate;  Insolvency. 

6.  Crimes. 

b.  Terms;  Place  of  Sitting. 

c.  Transfer  of  Cause. 

d.  Opinions. 
III.  Federal  Courts. 

a.  Suits  by  or  against  State  or  State 
Officers. 


COURTS,  1.  a. 


841 


III. — continued. 

b.  Suits  against  United  States. 

c.  Federal  Questions. 

d.  As  Dependent  on  Citizenship. 

e.  As  Dependent  on  Amount. 

f.  In  Equity;   Following  State  Prac- 

tice; Effect  of  State  Laws. 

g.  Ancillary  Jurisdiction, 
h.  Crimes. 

1.  Districts. 
IV.  Conflict     of     Authority;     Relation     of 
State  to  Federal. 

a.  Exclusiveness  of  Jurisdiction  First 

Acquired. 

b.  Interference    with    Other    Courts; 

Injunctions. 

c.  Property  in  Custody  of  Courts  or 

Officers. 

d.  When  State  or  Federal  Jurisdiction 

Exclusive ;  Limitations  Upon. 

1.  In  General. 

2.  Criminal  Proceedings. 
V.  Rules  of  Decision. 

a.  In  General. 

b.  Stare  Decisis;  Previous  Decisions 

of  Same  Court. 

c.  Construction  and  Constitutionality 

of  Statutes  or  Ordinances. 

d.  State  Courts  Following  Federal  De- 

cisions. 

e.  Following  Decisions   of  Courts  of 

Other  State  or  Country. 

f.  Federal  Courts  Following  State  De- 

cisions. 
VI.  Editorial  Notes. 

Of  Admiralty,  see  Admiralty, 

Of  Mediation,  Conciliation  and  Arbitration, 
see  Arbitration,  12-14. 

Courts  Martial,  see  Courts  Martial. 

Binding  Effect  of  Agreed  Statement,  see 
Agreed  Case,  5. 

Denial  by,  of  Creditor's  Right  to  an  Account- 
ing, see  Assignments  for  Creditors,  90. 

Statute  Over-Riding  Rules  as  to  Admission 
of  Attorney,  see  Attorneys,  2. 

Clerk  of,  see  Clerks. 

Performing  Business  of,  Through  Commis- 
sioners, see  Commissioners. 

Effect  of  Amendment  of  Constitution  on  De- 
cisions of,  s€e  Constitutional  Law,  28. 

Appointment  of  Metropolitan  Board  by  Leg- 
islature, see  Constitutional  Law,  282. 

Delegation  of  Power,  see  Constitutional  Law, 
L  d,  3. 

Constitutional  Rules  as  to  Procedure,  see 
Constitutional  Law,  II.  a,  7;  II.  b,  7. 

Constitutionality  of  Guaranty  of  Justice  in, 
see  Constitutional  Law.  II.  f. 

Change  of  Decision  as  Affecting  Contract, 
see  Constitutional  Law,  II.  g,  1,  6  (1) 
(b),  and  also  infra.  VI.  §  1. 

Contempt  of,  see  Contempt. 

Aiding  in  Enforcement  of  Illegal  Contract, 
see  Contracts,  III.  g. 

Maintennnce  of,  by  County,  see  Counties,  66. 

Constitutional  Provision  as  to  Being  Open, 
see  Counties,  87. 

Judicial  Notice  by,  see  Evidence,  I. 

Presum])tion  in  Favor  of  Judicial  Acts,  see 
Evidence,  623-629. 

Oral  Evidence  of  Transactions  in,  see  Evi- 
dence, 775-778. 


Acts  of,  on  Holidays,  see  Holidays,  1-5. 

Mandamus  to,  see  Mandamus,  I.  b. 

Power  to  Issue  Mandamus  in  Aid  of  Appel- 
late Jurisdiction,  see  Mandamus,  29-31. 

Refusal  to  Bring  in  Parties  Whose  Presence 
Will  Defeat  Jurisdiction,  see  Parties, 
208. 

Prohibition  to  Restrain,  see  Prohibition. 

Power  in  Quo  Warranto,  see  Quo  Warranto. 

Railroad  Commissioners  as,  see  Railroad 
Commissioners,  4. 

Records  of.  Generally,  see  Records,  8-10. 

Parol  Evidence  as  to  Records  of,  see  Evi- 
dence,  1231-1235. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 94-97. 

Special  Legislation  as  to,  see  Statutes,  384- 
399. 

Repeal  of  Statute  as  to,  see  Statutes,  587. 

Functions  of,  on  Trial,  see  Trial,  li.  a. 

Instruction  by,  to  Trustee,  see  Trusts,  132. 

As  to  Judges,  see  Judges. 

As  to  Justices  of  the  Peace,  see  Justice  of 
the  Peace. 

As  to  Removal  of  Causes,  see  Removal  of 
Causes. 


I.  Jurisdiction  and  Powers  in  General, 
a.  In  General ;  Inherent  Powers. 

Powers  and  Duties  as  to  Naturalization,  see 
Aliens,  II. 

Jurisdiction  on  Appeal,  see  Appeal  and  Er- 
ror. 

Waiver  of  Objections  to  Jurisdiction  by  Ap- 
pearance, see  Appearance. 

To  Enforce  Rig'ht  to  Custody  of  Corpse,  see 
Corpse,  15. 

Effect  on  Jurisdiction  of  Requirement  of  No- 
tice in  Eminent  Domain  Case,  see  Emi- 
nent Domain,  170. 

Presumption  as  to  Jurisdiction,  see  Evi- 
dence, 630. 

To  Abridge  Powers  and  Duties  of  Executor, 
see  Executors  and  Administrators,  32. 

Power  to  Cnoose  Assistants  for  Judges,  see 
Judges,  4. 

Power  to  Form  New  Schedules  of  Water 
Rates,  see  Waters,  592. 

For  Editorial  Notes,  see  infra,  VI.  §§  1-11. 

1.  A  wrong  decision  does  not  destroy  ju- 
risdiction. Turner  v.  Conkey,  132  Ind.  248, 
31  N.  E.  777,  17:  509 

2.  Mere  failure  of  a  petition  to  state  a 
cause  of  action,  or  the  defective  statement 
of  a  good  cause  of  action,  does  not  deprive 
the  court  of  jurisdiction.  Schubach  v.  Mc- 
Donald, 179  Mo.  163,  78  S.  W.  1020, 

65:  136 
Powers  generally;  inherent  powers. 
To  Compel  Bankrupt  to  Assign  Transfer  of 

Property,  see  Bankruptcy,  1. 
To  Punish  for  Contempt,  see  Contempt,  III. 

b. 
To    Assign    Court    Rooms    to    Judges,    see 

Courthouse,  4. 
To  Suspend  Sentence,  see  Criminal  Law,  241- 

246. 
To  Order  Physical  Inspection,  see  Discovery 

and  Inspection,  18-27. 


843 


COURTS,  I.  a. 


To  Award  Alimony,  see  Divorce  and  Separa- 
tion, V. 
As  to  Running  Streams,  see  Waters,  219. 

3.  The  power  of  courts  to  order  necessary 
repairs  to  the  court  room  is  inherent  and  in- 
cidental to  jurisdiction,  like  the  power  to 
punish  for  contempt.  White  County  Comrs. 
V.  Gwin,  136  Ind.  562,  36  N.  E.  237,      22:  402 

4.  The  power  of  circuit  courts  to  author- 
ize repairs  to  the  court  room  cannot  extend 
to  the  practical  reconstruction  of  the  court- 
house, or  to  the  construction  of  lasting  and 
permanent  improvements, — such  as  exten- 
sions, additions,  and  enlargements.  Id. 

5.  A  court  has  inherent  power  to  order  an 
elevator  in  the  courthouse  to  be  operated  by 
the  sheriff  during  sessions  of  court,  when  the 
use  of  the  elevator  is  necessary  to  furnish 
fit  and  convenient  means  of  access  to  the 
court  room,  although  the  county  commis- 
sioners direct,  on  the  contrary,  that  the  use 
of  the  elevators  shall  be  discontinued.  Vigo 
County  Comrs.  v.  Stout,  136  Ind.  53,  35  N. 
E.  683,  22:  398 

6.  The  courts  of  the  United  States  must 
be  enabled  fully  to  perform  all  the  functions 
imposed  upon  them  by  the  Constitution  and 
laws,  without  hindrance  or  obstruction;  and 
they  have  the  inherent  power  to  protect 
themselves,  by  and  through  their  executive 
officers,  under  the  direction  and  supervision 
of  the  Attorney  General  and  the  President, 
against  obstruction  and  hindrance  in  the 
performance  of  their  judicial  duties.  Re 
Neagle,  14  Sawy.  232,  39  Fed.  833,        5:  78 

7.  No  court  has  authority  to  originate  and 
introduce  new  process  to  enable  parties  to 
secure  evidence  in  support  of  thedr  cases. 
Austin  &  N.  W.  R.  Co.  v.  Cluck,  97  Tex.  172, 
77  S.  W.  403,  6*:  494 

8.  No  court  possesses  the  power  to  com- 
pel a  trustee  to  consent  to  a  destruction  of 
a  real -estate  trust  which  the  statutes  pro- 
hibit him  from  doing  any  act  to  contravene. 
Cuthbert  v.  Chauvet,  136  N.  Y,  326,  32  N.  E. 
1088,  18:  745 

9.  A  court  has  no  authority  to  establish 
reasonable  rules  and  regulations  for  the  ex- 
tension of  telephone  lines,  but  its  authority 
is  limited  to  requiring  the  proper  authori- 
ties to  adopt  such  rules  and  regulations,  and 
to  passing  upon  the  validity  of  such  action 
when  taken.  Michigan  Teleph.  Co.  v.  St. 
Joseph,   121  Mich.  502,  80  N.  W.  383, 

47:  87 

10.  A  court  has  no  jurisdiction  to  deter- 
mine whether  a  vacancy  exists  in  the  office 
of  senator  for  a  certain  county,  so  as  to  re- 
quire the  election  of  a  new  incumbent,  when 
the  senate,  which  is  made  the  judge  of  the 
qnalifipations  and  election  of  its  members  by 
Md.  Const,  art.  3,  §  19,  has  not  decided  the 
question.  Covington  v.  Euffett,  90  Md.  569, 
45  Atl.  204,  47 :  622 

11.  Courts  cannot  fix  a  time  different  from 
that  fixed  by  the  legislature  within  which 
suits  may  be  brought,  but  the  fixing  of  such 
time  is  purelv  a  legislative  function.  Os- 
borne V.  Lindstrom,  9  N.  D.  1,  81  N.  W.  72, 

46:  775 

12.  A  court  in  which  suit  is  brought 
against  a  railroad  company  for  negligently 
killing  a  passenger,  by  one  who  obtained  let- 


ters of  administration  by  alleging  assets  coik- 
sisting  of  the  unsettled  claim  against  the 
company,  cannot  investigate  the  validity  of 
the  claim  for  the  purpose  of  adjudicating 
that  the  administration  is  void,  and  that 
therefore  the  action  cannot  be  maintained. 
Boston  &  M.  R.  v.  Hurd,  47  C.  C.  A.  616,  108 
Fed. 116,  56:  193 

13.  The  court  is  under  no  obligation  to  ad- 
minister exact  justice  between  litigants;  its 
province  being  to  try  the  issues  formed  by 
the  pleadings  according  to  the  rules  of  pro- 
cedure. Austin  &  N.  W.  R.  Co.  v.  Cluck,  97 
Tex.  172,  77  S.  W.  403,  64:  494 
Power  over  highway  near  court  room. 
Municipal  Liability  for  Injury  by  Rope  Or- 
dered Across  Highway  by  Court,  see 
Highways,  265. 

14.  It  seems  that  a  judge  has  authority  to 
order  ropes  stretched  across  a  street  during 
the  hours  when  his  court  is  sitting,  to  pre- 
vent travel  in  front  of  the  courthouse,  when 
the  noise  of  passing  vehicles  is  sufficient  to 
obstruct  the  proper  administration  of  jus- 
tice therein.  Belvin  v.  Richmond,  85  Va.  574, 
8  S.  E.  378,  1:  807 

15.  A  court  may  prevent  the  use,  during 
court  hours,  of  a  pavement  newly  laid  in  the 
adjoining  street,  in  such  a  way  that  the 
noise  of  the  traffic  thereon  interrupts  the 
business  of  the  court,  both  under  its  com- 
mon-law powers,  and  under  a  statute  giving 
it  power  to  preserve  order  so  near  to  it  as 
is  necessary  to  prevent  interruption,  dis- 
turbance, or  hindrance  to  its  proceedings. 
Ex  parte  Birmingham,  134  Ala.  609,  33  So. 
13,  59:  572 
Real  controversies. 

Suit  to  Construe  Will,  see  Wills,  463. 
See  also  infra,  502. 

16.  The  court  has  no  power  to  construe  a 
contract,  so  as  to  make  its  decision  res 
judicata,  when  the  case  made  and  the  relief 
sought  are  beyond  its  jurisdiction.  Taylor 
v.  Mutual  Reserve  Fund  L.  Asso.  97  Va.  60, 
33  S.  E.  385,  45:  621 

17.  A  court  will  not  inquire  into  the  valid- 
ty  of  a  divorce  obtained  by  a  man  since  de- 
ceased, for  the  mere  purpose  of  satisfying  a 
sentiment  as  to  who  is  his  widow.  Law- 
rence V.  Nelson,  113  Iowa,  277,  85  N.  W.  84, 

57:583 

18.  For  the  purpose  of  determining  the 
proper  recipient  of  a  pension  due  to  the  wid- 
ow of  a  deceased  person,  the  court  will  in- 
quire into  the  validity  of  a  divorce  which  he 
had  obtained.  Id. 
Power  of  parties  to  affect. 

Ousting  Jurisdiction  of,  by  Provision  for 
Submitting  Differences  to  Arbitration, 
see  Arbitration,  5-7. 

Provision  in  Lloyds  Policy  Ousting  Courts 
of  Jurisdiction,  see  Insurance,  1288. 

Consent  to  Jurisdiction  of  Justice  of  the 
Peace,  see  Judgment,  128. 

Raising  Question  by  Stipulation,  see  Stipu- 
lation. 5. 

19.  Consent  of  the  parties  is  sufficient  to 
"rive  jurisdiction  over  them  to  a  court  which 
has  jurisdiction  of  the  subject-matter.  Cof- 
rode"  V.  Gartner,  79  Mich.  332,  44  N.  W.  623, 

7:511 


COURTS,   I.  b,  1. 


843 


20.  The  parties  cannot  stipulate  that  the 
issues  of  a  cause  in  the  original  jurisdiction 
of  the  supreme  court  shall  be  tried  by  the 
court  when  the  supreme  court  has  sent  the 
cause  to  a  subordinate  court,  with  explicit 
directions  to  try  the  issues  of  fact  by  sub- 
mitting them  to  a  jury.  C.  &  J.  Michel 
Brewing  CJo.  v.  State  (S.  D.)  103  N.  W.  40, 

70:  911 

21.  A  stipulation  to  set  aside  out  of  the 
proceeds  of  existing  insurance  policies  in 
case  of  loss  by  fire  a  sum  sufficient  to  pay 
certain  bonds,  in  case  the  court  should  fi- 
nally decide  that  the  owner  of  the  property 
as  grantee  of  the  equity  of  redemption  was 
bound  to  insure  for  the  benefit  of  the  bond- 
holders, when  this  was  made  by  large  stock- 
holders in  the  company  owning  tlf^  property, 
for  the  purpose  of  satisfying  the  court  that 
there  was  no  disposition  to  evade  the  obliga- 
tion to  insure  if  it  were  judicially  heM  to  ex- 
ist,— does  not  put  the  court  in  control  of 
funds  that  arise  from  the  insurance,  in  such 
fashion  as  to  qualify  it  with  any  special 
jurisdiction  to  administer  and  apply  the 
same,  or  raise  any  duty  of  administering  and 
disposing  of  a  res  in  court.  Farmers'  Loan 
&  T.  Ck).  V.  Penn  Plate  Glass  Co.  43  C.  C.  A. 
114,  103  Fed.  132,  56:710 

b.  Over    Nonresidents;    Territorial    Limita- 
tions. 

1.  Generally* 

As  to  Federal  Districts,  see  infra,  ITT.  i. 

Right  of  Courts  of  One  State  to  Enforce 
Laws  of,  or  Causes  of  Action  Arising  in. 
Another  State,  see  Conflict  of  Laws. 

Prohibiting  Action  in  Other  State  as  Denial 
of  Due  Process,  see  Constitutional  Law, 
827. 

Domicil  for  Jurisdictional  Purposes,  see 
Domicil,  3-6. 

Presumption  as  to  Jurisdiction,  see  Evi- 
dence, 630,  631,  634. 

Suit  by  Foreign  Executor,  see  Executors  and 
Administrators,  114-118. 

Suit  against  Foreign  Executors  or  Adminis- 
trators, see  Executors  and  Administra- 
tors, 124-129. 

As  to  Venue  of  Action,  see  Venue. 

For  Editorial  Notes,  see  infra,  VT.  §  6. 

22.  A  court  has  no  discretion  to  refuse  to 
hear  a  case  between  nonresidents  of  which 
it  has  jurisdiction,  merely  because  the  suit 
is  brought  there  only  for  convenience  of 
parties  and  attorneys,  and  will  entail  ex- 
pense upon  the  county.  Cofrode  v.  Gartner, 
79  Mich.  332,  44  N.  W.  623,  7:  511 

23.  Upon  the  question  of  the  business  resi- 
dence, toa-  jurisdictional  purposes,  of  a  non- 
resident who  owns,  but  has  discontinued  the 
operation  of,  a  distillery  within  the  county, 
his  testimony  as  to  his  intent  with  respect 
to  resumption  of  such  operation  may  be  con- 
sidered. Gambrill  v.  Schooiey,  95  Md.  260, 
52  Atl.  500,  63:  427 

24.  The  nonresident  owner  of  a  distillery 
located  in  a  certain  county  cannot  be  said, 
as  matter  of  law,  to  be  carrying  on  business 
there  so  as  to  bring  him  within  the  jurisdic- 


tion of  its  courts,  where  he  has  contracted 
the  exclusive  sale  of  his  product  tor  five 
years  to  one  concern,  which  cannot  be  re- 
quired to  take  more  than  600  barrels  per  an- 
num, and  there  is  nothing  to  show  that  this 
cannot  be  supplied  from  stock  on  hand,  while 
the  distillery  has  been  closed  for  three 
months,  and  is  not  to  be  opened  again  until 
orders  require  it.  Id. 

25.  An  action  on  contract  is  within  the 
jurisdiction  of  the  courts  of  the  state  in 
which  is  the  place  of  performance,  although 
the  parties  are  residents  of  other  states. 
Cofrode  v.  Gartner,  79  Mich.  332,  44  N.  W. 
623,  7:511 

26.  That  the  parties  are  nonresidents  and 
the  cause  of  action  originated  beyond  the 
limits  of  the  state  justiiy  the  court  in  re- 
fusing to  entertain  jurisdiction,  although  the 
action  is  transitory;  and  it  will  be  refused 
where  the  cause  of  action  arises  out  of  mat- 
ters connected  with  Indian  lands.  Morris  v. 
Missouri  P.  R.  Co.  78  Tex.  17,  14  S.  W .  228, 

9:  349 

27.  The  judge  of  a  city  court,  the  juris- 
diction of  which  extends  over  the  whole  of 
the  county  in  which  it  is  located,  has  power 
to  grant  a  writ  of  habeas  corpus  directed  to 
any  person  having  another  in  illegal  custody 
within  the  territorial  limits  of  the  county, 
and  to  make  it  returnable  to  any  place  with- 
in the  county,  notwithstanaing  such  person 
may  be  a  nonresident  of  the  county.  ISim- 
mons  V.  Georgia  iron  &  Coal  Co.  117  Ga.  305, 
43  S.  E.  780,  61:739 

28.  A  court  is  not  deprived  of  the  jurisdic- 
tion to  grant  an  injunction  against  numer- 
ous persons,  many  ol  whom  live  within  the 
county,  against  the  violation  of  an  exclu- 
sive ferry  franchise  for  a  terry  across  a 
river  which  is  a  boundary  ot  the  county, 
merely  because  the  franchise  has  been  grant- 
ed by  the  county  court  of  the  adjoining  coun- 
ty. Warren  v.  Tanner,  21  Ky.  L.  Rep.  ib/8, 
56  S.  W.  167,  49:  248 

29.  That  stocKS  and  bonds  claimed  by 
a  domestic  corporation  had  been  pledged  to 
a  nonresident  does  not  deprive  the  domestic 
courts  of  jurisdiction  of  a  bill  in  equity  at- 
tacking the  validity  of  the  title.  Kidd  v. 
I^ew  iaampshire  Traction  Co.  72  N.  H.  273, 
56  Atl.  41)5,  66:  574 
Causes  of  action  arising  on  river  forming 

state  boundary. 
See  also  Boundaries,  I. 

30.  The  "concurrent  jurisdiction"  over  the 
waters  of  the  Mississippi  river,  given  to  the 
states  of  Wisconsin  and  Minnesota  by  the 
act  of  Congress  admitting  them  to  the  Un- 
ion, does  not  empower  one  state  to  regulate 
the  individual  enjoyment,  by  people  of  an- 
other state  within  its  boundaries,  of  prop- 
erty held  in  trust  by  such  other  state  for 
the  people  within  its  limits, — such  as  public 
water  and  the  fish  and  game  that  inhabit 
the  same.  Roberts  v.  FuUerton,  117  Wis. 
222,  93  N.  W.  1111,  65:  953 

31.  The  term  "concurrent  jurisdiction  on 
the  water"  of  the  Mississippi  river,  in  the 
acts  of  Congress  providing  tor  the  admission 
of  the  states  of  Wisconsin  and  Minnesota  in- 
to the  Union,  must  be  restrained  to  the  or- 


844 


COURTS,  I    b,  2. 


dinary  meaning  thereof  in  American  public 
law  at  the  time  fhe  term  came  into  use  in 
the  legislative  enactments  of  this  country. 

Id. 

32.  The  enfoacement,  by  the  state  of  Min- 
nesota, of  its  fish  and  game  laws  on  the 
Wisconsin  side  of  the  main  channel  of  the 
Mississippi  river,  is  not  justifiable  on  the 
theory  of  common  ownership  of  the  river,  or 
things  in  or  on  or  under  the  same,  on  the 
Wisconsin  side  of  the  main  channel.  Id. 

33.  The  term  "concurrent  jurisdiction  on 
the  water"  of  the  Mississippi  river,  used  in 
the  acts  of  Congress  providing  for  the  ad- 
mission of  the  states  of  Wisconsin  and  Min- 
nesota into  the  Union,  refers  to  the  effect  of 
the  law  of  each  state  within  the  domain  of 
the  other  covered  by  water  divided  by  the 
boundary  line  between  the  two  states,  as  re- 
gards persons  or  things  on  the  water,  con- 
cerned or  connected  in  some  way  wim  the 
use  thereof  for  purposes  of  navigation,  and 
has  no  refereu':^  to  the  land  under  the  water, 
or  things  of  a  permanent  nature  in  or  over 
the  water.  In  respect  to  such  matters,  and 
rights  incident  thereto,  the  jurisdiction  of 
each  state  on  its  side  of  the  boundary  line 
is  exclusive.  Id. 

34.  The  concurrent  jurisdiction  which 
Wisconsin  has  with  the  state  of  Minnesota 
on  the  Mississippi  river  is  of  a  special  na- 
ture,— one  not  incident  to,  nor  implying  con- 
current dominion  over,  the  territory  covered 
by  water  between  the  two  states,  or  concur- 
rent ownership  in  such  water,  or  the  land 
under  the  water,  or  the  fish  and  game  that 
inhabit  the  same.  Id. 

35.  Jurisdiction  is  acquired  by  an  Indiana 
court  by  the  service  of  process  on  the  Ohio 
river  on  the  Kentucky  side  of  the  low-water 
mark  on  the  Indiana  shore,  in  view  of  the 
condition  contained  in  the  Virginia  compact 
of  1789,  §  11,  that  the  jurisdiction  of  the  pro- 
posed state  of  Kentucky  on  the  Ohio  river 
should  be  "concurrent  only  with  the  states 
which  may  possess  the  opposite  shores  of  the 
said  river,"  which  condition  Congress  neces- 
sarily assented  to  and  adopted  when  it  con- 
sented to  the  Virginia  compact  by  the  net  of 
February  4,  1791  (1  Stat,  at  L.  189,  chap.  4), 
admitting  Kentucky  to  the  Union.  Wcddinfj 
V.  Mevler,  192  U.  "S.  573,  48  L.  ed.  570.  24 
Sup.  Ct.  Rep.  322,  6G:  833 

3G.  The  Missouri  statute  giving  damages 
for  injuries  resulting  in  death  controls  a  case 
between  citizens  of  that  state,  arising  from 
facts  occurring  on  the  ^lississippi  river  near 
the  Illinois  shore,  east  of  the  main  channel, 
as  the  act  of  Congress  of  April  iS,  1818, 
gives  the  states  bordering  on  the  river  con- 
current jurisdiction  so  far  as  the  river  forms 
the  common  boundarv.  Sanders  v.  St.  Tx)uis 
&  N.  O.  Anchor  Line,'97  Mo.  26,  10  S.  W.  59.i, 

3:  3:!0 

37.  An  island  outside  the  boundary  of  the 
state  of  Iowa  because  east  of  the  middle 
of  the  main  channel  of  the  Mississippi  river 
is  beyond  the  jurisdiction  of  the  courts  of 
that  state  for  the  abatement  of 'nuisances 
thereon  or  the  punishinont  of  crime  commit- 
ted thereon  although  tlie  state  has  conciu'- 
rent  jurisdiction,  under  act  of  Congress  of 


March  3,  1845,  over  the  river  itself  for  its 
whole  width  so  far  as  it  forms  a  boundary. 
Buck  v.  i!.llenbolt,  84  Iowa,  394,  51  N.  W. 
22,  15:  187 

Note  in  other  state. 

38.  A  claim  that  a  note  belongs  to  a  non- 
resident debtor  will  not  make  it  property 
subject  to  trustee  process  in  the  hands  of  the 
maker,  which  will  give  the  courts  of  the 
state  of  the  maker's  residence  jurisdiction  to 
make  a  decree  affecting  its  title  or  owner- 
ship, if  it  is  in  fact  payable  to  a  third  per- 
son and  held  by  him  at  his  residence  in  an- 
other state.  Ward  v.  Boyce,  152  N.  Y.  191, 
46  N.  E.  180.  36:  549 
Liability  of  stockholder  of  foreign  corpora- 
tion. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.  d,  2,  b. 

39.  An  action  to  enforce  the  liability  of  a 
stockholder  under  the  laws  of  another  state 
in  which  the  corporation  was  organized  and 
judgment  has  been  rendered  against  it,  but 
no  proceedings  taken  against  him,  cannot  be 
maintained  in  a  state  in  which  the  corpora- 
tion has  no  place  of  business,  notwithstand- 
ing that  the  parties,  although  both  nonresi- 
dents, do  not  reside  in  the  same  state,  and 
neither  of  them  resides  in  the  state  where 
the  corporation  was  organized.  Bank  of 
North  America  v.  Rindge,  154  Mass.  203,  27 
N.  E.  1015,  13:56 
Injury  in  other  jurisdiction. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
I.  e. 

40.  The  fact  that  an  action  might  be 
brought  in  Mexico  for  injuries  received  there 
by  a  railroad  employee  who  lives  in  Texas, 
since  the  defendant  owns  and  operates  a 
railroad  in  Mexico,  does  not  constitute  a 
reason  why  he  should  not  sue  in  Texas, —  at 
least  when  the  defendant  railway  company 
is  incorporated  in  the  United  States  and  its 
road  extends  into  Texas.  Evey  v.  Mexican 
C.  R.  Co.  26  C.  C.  A.  407,  52  U.  S.  App.  118, 
81  Fed.  294,  38:  387 

41.  A  citizen  of  one  state  may  maintain 
in  the  courts  of  another  state  a  transitory 
action  arising  at  his  residence  against  an- 
other citizen  of  the  same  state  found  in  the 
other  state  imder  the  provision  of  the  Unit- 
ed States  Constitution  guaranteeing  to  the 
citizens  of  each  state  all  the  privileges  and 
immunities  of  citizens  of  the  several  states 
which  the  courts  of  the  latter  state  have  no 
discretionarv  power  to  dismiss.  Eingartner 
V.  Illinois  Steel  Co.  94  Wis.  70,  68  ^.  W. 

004.  34:  503 
Destruction  of  property  outside  of  state. 

42.  An  action  may  be  maintained  in  Texas 
for  the  aestruction  of  personal  property  in 
the  territory  of  the  Choctaw  Nation.  Mis- 
souri  P.  R.  Co.  V.  Cullers,  81   Tex.  382.   17 

5.  W.  19,  13:  542 

2.  Crimes. 

Right   of   Courts   of  One   State   to   Enforce 
Laws  of  Another  as  to,  see  Conflict  of 
Laws,  I.  e,  3. 
\'enue  of  2\ction,  see  Venue,  17-19, 
For  Editorial  Notes,  see  infra,  VI.  §  6. 


COURTS,  I.  b,  8. 


845 


Committed  in  more  than  one  county. 
Prosecution  in  One  County  as  Bar,  see  Crim- 
inal Law,  143. 
See  also  infra,  385 ;  Criminal  Law,  33. 

43.  A  constitutional  right  to  trial  by  jury 
of  the  vicinage  does  not  prevent  the  trial 
taking  place  in  either  county,  in  case  a 
crime  is  begun  in  one  and  consummated  in 
another.  Hargis  v.  Parker,  27  Ky.  L.  Rep. 
441,   85   S.   W.   704,  69:  270 

44.  Depositing  a  forged  instrument  in  the 
mail  dirented  to  another  county  does  not 
make  the  county  in  which  it  was  mailed,  but 
the  county  where  the  instrument  was  re- 
ceived, the  place  of  the  offense  of  uttering  it, 
if  such  offense  is  committed.  State  v.  Hud- 
son, 13  Mont.  112,  32  Pac.  413,  19:  775 

45.  A  statute  making  a  crime  committed 
partly  in  each  of  two  counties  punishable  in 
either  does  not  apply  to  the  uttering  of  a 
forged  instrument  by  mailing  it  from  one 
county  to  another,  as  no  part  of  the  of- 
fense is  committed  in  the  former.  Id. 

46.  A  prosecution  for  obtaining  money  by 
the  use  of  the  confidence  game  should  be  in- 
stituted in  the  county  where  the  offense  was 
consummated,  and  not  in  that  where  pre- 
liminary acts  were  done,  under  a  statute 
providing  that  local  jurisdiction  of  all  of- 
fenses shall  be  in  the  county  where  the  gf- 
fense  is  committed.  Graham  v.  People,  181 
111.  477,  55  N.  E.  179,  47:  731 

47.  Where  a  death  following  a  fatal  blow 
struck  in  one  county  occurs  in  another  the 
commencement  of  a  prosecution  in  either 
will  uar  a  subsequent  one  in  the  other,  where 
the  statute  provides  that  the  jurisdiction 
shall  be  in  the  courts  of  the  county  "where 
the  prosecution  shall  be  first  begun,"  al- 
though a  nolle  prosequi  is  entered  before 
the  termination  of  the  trial.  Coleman  v. 
State,  83  Miss.  290,  35  So.  937,         64:  807 

48.  An  accessory  before  the  fact  to  a  mur- 
der in  which  the  wound  is  inflicted  in  one 
county  and  the  injured  person  dies  in  an- 
other may  be  tried  in  either  county,  al- 
though his  acts  are  committed  only  in  the 
former,  under  statutes  providing  that  acces- 
sories shall  be  liable  to  the  same  punishment 
as  principals,  and  may  be  prosecuted  jointly 
with  them,  and,  in  case  of  a  crime  commit- 
ted jointly  in  two  counties,  the  prosecution 
may  be  in  either.  Hargis  v.  Parker,  27  Kv. 
L.  Rep.  441,  85  S.  W.  704,  69:  270 
Committed  in  mare  than  one  state,  gener- 
ally. 

49.  A  homicide  may  be  made  punishable 
by  statute  in  the  state  where  the  death  oc- 
curs, although  the  mortal  stroke  was  given 
in  another  state,  and  the  Constitution  pro- 
vides that  trials  of  crimes  shall  be  in  the 
county  where  the  "offense  was  committed." 
Ex  parte  McNeely,  36  W.  Va.  84,  14  S.  E. 
436,  15:226 
Shooting  across  state  boundary. 

For  Editorial  Notes,  see  infra,  VI.  §  6. 

50.  Tliere  is  no  jurisdiction  in  North  Car- 
olina of  the  crime  committed  by  persons 
who,  while  standing  in  that  state,  shoot 
across  the  state  boundary  and  kill  a  person 
in  Tennessee.  State  v.  Hall,  114  N.  C.  909, 
19  S.  E.  602,  28:  59 


51.  The  offense  of  shooting  at  another  is 
committed  in  Georgia  when  one  in  the  state 
of  South  Carolina,  without  malice  afore- 
thought, but  not  in  his  own  defense  or  un- 
der other  circumstances  of  justification,  aims 
and  fires  a  pistol  at  another  who  at  the  time 
is  in  Georgia,  although  the  ball  misses  him, 
and  strikes  the  water  in  Georgia  near  the 
boat  which  he  occupies.  Simpson  v.  State, 
92  Ga.  41,  17  S.  E.  984,  22:  248 
Committed  on  river  forming  state  boundary. 

52.  A  state  has  jurisdiction  to  try  and 
punish  offenses  against  its  Sunday  laws, 
committed  by  persons  engaged  in  carrying 
passengers  over  navigable  waters  of  the 
United  States  lying  along  its  borders,  be- 
tween dififerent  points  within  its  territory. 
Dugan  V.  State,  125  Ind.  130,  25  N.  E.  171, 

9:  321 

53.  The  courts  of  Indiana  have  jurisdiction 
to  try  and  punish  persons  selling  intoxicat- 
ing liquors  in  violation  of  its  laws  upon 
boats  anchored  in  the  Ohio  river,  where  such 
river  constitutes  the  southern  boundary  of 
the  state.  Welsh  v.  State,  126  Ind.  71,  25 
N.  E.  883,  9:  664 

3.  Real  Property. 
a.  In  General. 

Venue  of  Action,  see  Venue,  8-12. 

In  other  county. 

Mandamus  Proceeding,  see  Mandamus,  151. 

54.  The  circuit  court  of  one  county  having 
jurisdiction  of  the  parties  and  the  original 
controversy  has  jurisdiction  to  decree  a  sale 
of  land  in  another  county  as  incidental  to 
the  relief  originally  sought.  Doty  v.  Depos- 
it Bldg.  &  L.  Asso.  103  Ky.  710,  46  S.  W.  219, 
47  S.  W.  433,  43:  551 

55.  Land  of  the  husband  in  another  county 
within  the  state  is  within  the  jurisdiction  of 
a  court  in  a  divorce  suit  to  decree  an  ali- 
mony under  Kan.  Code  Civ.  Proc.  §  72.  Wes- 
ner  V.  O'Brien,  56  Kan.  724,  44  Pac.  1090, 

32:  289 

56.  A  suit  to  compel  the  execution  or  can- 
celation of  deeds  to  land  may  be  within  the 
jurisdiction  of  a  court  outside  of  the  county 
in  which  the  land  lies,  if  it  has  jurisdiction 
of  the  person  of  the  defendant.  Hayes  v. 
O'Brien,  149  111.  403,  37  N.  E.  73,  23:  555 
In  other  country. 

For  Editorial  Notes,  see  infra,  VI.  §  6. 

57.  The  facts  that  the  parties  to  a  con- 
tract for  the  purchase  and  sale  of  land  are 
foreigners,  and  that  thfe  land  is  situated  in  a 
foreign  country,  will  not  prevent  the  courts 
of  the  state  in  which  the  contract  was  en- 
tered into  from  taking  jurisdiction  of  a  suit 
brought  by  the  vendee,  after  repudiating  the 
contract  because  of  the  vendor's  fraud,  to 
compel  the  restoration  to  him  of  money  and 
securities  given  in  exchange  for  the  land, 
which  are  within  the  jurisdiction  of  such 
courts;  the  vendee  having  voluntarily  sub- 
mitted himself  to  their  jurisdiction,  and  of- 
fered to  do  equity.  Loaiza  v.  San  Francisco 
Super.  Ct.  85  Cal.  11,  24  Pac.  707,        9:  376 


846 


COURTS,  I.  b,  4. 


h.  In  Other  State. 

Venue  of  Action,  see  Venue,  10. 

See  also  Executors  and  Administrators,  118; 

Judgment,  366,  377. 
For  Editorial  Notes,  see  infra,  VI.  §  6. 

58.  A  court  of  equity  sitting  in  one  state 
has  jurisdiction  of  a  suit  by  one  of  its  citi- 
zens holding  a  mortgage  on  property  in  an- 
other state,  to  enjoin  another  citizen  from 
removing  from  the  property  alleged  fixtures 
which  he  had  furnished  under  a  conditional 
contract, — at  least  where  the  nonresident 
mortgagor  voluntarily  comes  in  and  submits 
to  the  jurisdiction.  Schmaltz  v.  York  Mfg. 
Ck).  204  Pa.  1,  53  Atl.  522,  59:  907 

59.  A  court  having  jurisdiction  over  a 
railroad  corporation,  although  it  may  be  a 
company  formed  by  the  consolidation  of  a 
corporation  in  that  state  with  one  in  an- 
other state,  may  make  a  decree  foreclosing 
a  mortgage  on  the  corporate  property  situat- 
ed in  both  states,  and  direct  a  sale  of  the 
whole  property  and  the  execution  of  a  prop- 
er conveyance  to  the  purchaser.  McTighe 
V.  Macon  Const.  Co.  94  Ga.  306,  21  S.  E.  701, 

32:  208 
In  divorce  suit. 
See  also  supra,  55. 

60.  No  interest  in  real  estate  located  in 
another  state  can  be  vested  in  a  complain- 
ant in  a  divorce  proceeding  by  a  decree  which 
purports  to  deal  directly  with  the  title  to 
the  estate.  Proctor  v.  Proctor,  215  111.  275, 
74  N.  E.  145,  69:  673 
Specific  performance  of  contract. 

61.  The  equity  courts  of  ome  state,  having 
jurisdiction  of  the  parties,  may  entertain  a 
suit  for  specific  performance  of  the  contract 
to  convey  lands  in  another  state;  but  a  de- 
cree in  such  suit  does  not  create  or  vest  a 
title  in  the  lands.  Lindley  v.  O'Reilly  (N. 
J.  Err.  &  App.),  50  N.  J.  L.  636,  15  Atl.  379, 

1:79 
Rescission  of  sale. 

62.  The  courts  of  a  state  have  jurisdiction 
of  an  action  between  nonresidents  for  the 
rescission  of  a  sale  of  lands  situated  with- 
out the  state,  wTiere  the  contract  was  made 
in  the  state,  and  the  agent  of  the  vendor, 
who  is  a  resident  thereof,  holds  the  consider- 
ation, consisting  partly  of  money  and  partly 
of  notes  of  a  resident  secured  by  mortgages 
on  lands  within  the  state,  and  is  sought  to 
be  restrained  in  the  action  from  turning 
over  the  consideration  to  the  vendor.  Loaiza 
V.  San  Francisco  Super.  Ct.  85  Cal.  11,  24 
Pac.  707,  ,  9:  376 

63.  An  action  between  nonresidents  for 
the  rescission  of  a  sale  made  within  the 
state,  of  lands  situated  in  a  foreign  jurisdic- 
tion, the  real  object  of  which  is  not  to  com- 
pel the  vendor  to  accept  a  reconveyance,  but 
to  compel  the  restoration  to  the  vendees  of 
the  moneys  paid  and  a  cancelation  of  the 
securities  given  on  the  contract,  all  of  which 
are  within  the  court's  jurisdiction,  the  ven- 
dees having  offered  to  rescind,  is  an  action 
in  rem  and  within  the  jurisdiction  of  the 
state  courts,  although  the  vendors  were  not 
personally  served.  Id. 


Correction  of  patent. 

64.  The  state  of  Kentucky  cannot  main- 
tain a  suit  in  the  courts  of  that  state  to 
correct  a  patent  for  and  reinvest  itself  with 
title  to  lands  included  within  the  strip  that 
by  compact  with  the  state  of  Tennessee,  be- 
fore the  patent  was  issued,  had  been  brought 
under  the  sovereignty  of  the  latter  state, 
with  the  right  only  on  the  part  of  Kentucky 
to  dispose  of  it  by  grant  or  otherwise, — es- 
pecially when  much  of  the  land  has  been  sold 
and  is  not  in  the  possession  of,  or  claimed 
by,  the  patentee  or  his  heirs.  Any  remedy 
which  exists  must  be  enforced  in  the  courts 
of  Tennessee.  Com.  v.  Bowman  (Ky.)  (Not 
to  be  Rep.)  10  Ky.  L.  Rep.  891,  11  S.  W.  28, 

3:  220 
Injury  to. 

65.  An  action  for  injuries  to  real  property 
is  not  maintainable  in  a  state  in  which  the 
lands  are  not  located,  and  of  which  neither 
of  the  parties  are  residents.  Morris  v.  Mis- 
souri P.  R.  Co.  78  Tex.  17,  14  S.  W.  228, 

9:  349 

66.  An  action  for  injury  done  to  lands 
without  the  state  by  an  act  no  part  of  which 
was  performed  within  the  state  is  purely 
local,  and  cannot  be  maintained  in  the  Texas 
courts.  Missouri  P.  R.  Co.  v.  Cullers,  81 
Tex.  382,  17  S.  W.  19,  13:  542 
Rights  under  will. 

Presumption  as  to  Jurisdiction,  see  Evi- 
dence, 631. 

67.  The  inability  of  the  beneficiary  under 
a  will  to  bring  suit  for  conveyance  of  land 
to  him  as  directed  by  the  will,  in  the  state 
where  the  land  is  sn-uated,  because  the  will 
is  not  recorded  there,  will  not  prevent  him 
(or  his  heirs  after  his  death)  from  bringing 
such  suit  in  another  state  where  the  will  was 
made.  McQuerry  v.  Gilliland,  89  Ky.  434,  12 
S.  W.   1037,  7:  454 

68.  Where  the  will  of  a  resident  of  Massa- 
chusetts gives  personal  property  in  that 
state  and  real  property  in  another  state  to 
the  heirs  of  a  resident  of  the  latter  state, 
the  Massachusetts  courts  have  jurisdiction 
to  determine  the  proper  disposition  of  the 
personal  property  only, — especially  where  a 
trustee  has  been  appointed  in  the  other  state 
for  the  purpose  of  selling  the  land  there  sit- 
uated. Lincoln  v.  Perry,  149  Mass.  368,  21 
N.  E.  671,  4:  215 

4.  Foreign  Corporations. 

Conflict  of  Laws  as  to  Insolvency  of  For- 
eign Corporation,  see  Conflict  of  Laws, 
I.  f . 

Allegations  Showing  Jurisdiction,  see  Plead- 
ing, 189. 

For  Editorial  Notes,  see  infra,  VI.  §§  6,  6V2. 

A-ction  by  corporation. 

Comity  in  Permitting  Suit  by  Foreign  Cor- 
poration, see  Conflict  of  Laws,  156-162. 

Right  of  Foreign  Corporation  to  Sue,  see 
Corporations,  861-864. 

69.  Jurisdiction  will  not  be  taken  on  serv- 
ice by  publication,  of  an  action  by  a  foreign 
corporation  having  a  place  of  business  in 
the  state  to  recover  a  debt  contracted  in  an- 
other state  and   not  reduced  to  judgment, 


COURTS,  I.  b,  4. 


847 


from  a  nonresident  whose  only  property  in 
the  state  consists  of  his  interest  as  partner 
in  a  firm  whose  property,  assets,  books, 
vouchers,  papers,  and  accounts,  are  all,  with 
few  exceptions,  in  another  s^tate  where  the 
principal  business  of  the  firm  is  carried  on 
and  two  of  the  partners  live.  National 
Teleph.  Mfg.  Co.  v.  Du  Bois,  165  Mass.  117, 
42  N.  E.  510,  30:  628 

Action  against  corporation  generally. 
Against     Foreign     Railroad     Company     for 

Causing  Death,   see   Conflict   of  Laws, 

225. 
Liability  of  Foreign  Corporation  to  Suit,  see 

Corporations,  865-868. 
Venue  of  Action,  see  Venue,  13-16. 
See  also  supra,  59;  infra,  378-381. 
For  Editorial  Notes,  see  infra,  VI.,  §§  6,  eVa- 

70.  Courts  have  no  visitorial  power  over 
foreign  corporations  doing  business  within 
the  state,  unless  it  is  expressly  conferred  by 
statute.  Republican  Mountain  Silver  Mines 
V.  Brown,  19  U.  S.  App.  203,  V  C.  C.  A.  412, 
58  Fed.  644,  24:  776 

71.  No  court  in  the  state  of  New  York  has 
jurisdiction  of  an  action  by  a  nonresident 
against  a  foreign  corporation  on  a  cause  of 
action  which  did  not  arise  within  the  stat-e. 
Robinson  v.  Ocean  Steam  Nav.  Co.  112  N.  Y. 
315,  19  N.  E.  625,  2:  636 

72.  Jurisdiction  of  an  inquiry  into  and 
control  over  the  internal  management  of  a 
foreign  corporation  is  not  conferred  by  a 
statute  wliich  in  broad  and  comprehensive 
terms  provides  for  all  actions,  suits,  or  pro- 
ceedings against  foreign  corporations.  Con- 
don V.  Mutual  Reserve  Fund  L.  Asso.  89 
Md.  99,  42  Atl.  944,  44:149 

73.  The  motive  or  effect  of  acts  within  the 
internal  management  of  a  foreign  corpora- 
tion cannot  make  them  cognizable  by  a  court 
which  does  not  otherwise  have  jurisdiction, 
over  them.  Id. 

74.  A  court  will  not  interfere  with  the  in- 
ternal management  of  a  foreign  corporation 
at  the  suit  of  a  resident  stockholder,  by 
setting  aside  unwise  and  useless  contracts 
which  depreciate  and  destroy  the  value  of 
the  stock,  although  the  visible,  tangible 
property  of  the  corporation,  consisting  of 
conduits  in  streets  for  electric  lighting,  is 
within  the  state.  Madden  v.  Penn  Electric 
Light  Co.  181  Pa.  617,  37  Atl.  817,      38:  638 

75.  Courts  of  one  state  cannot,  by  injunc- 
tion, afford  equitable  relief  even  to  one  of 
its  residents  who  is  a  membei*  of  a  foreign 
corporation,  by  an  order  commanding  and  re- 
quiring such  corporation  to  do  or  not  to  do 
certain  specified  acts  connected  with  the  in- 
ternal management  of  its  corporate  affairs, 
although  the  statutes  in  general  terms  pro- 
vide means  for  bringing  foreign  corporations 
into  the  courts  of  the  state,  and  that  resi- 
dents may  bring  actions  in  the  courts  for 
any  cause  of  action.  Howard  v.  Mutual  Re- 
serve Fund  L.  Asso.  125  N.  C.  49,  34  S.  E. 
199,  45:  853 

76.  Courts  in  California  have  jurisdiction 
of  the  subject-matter  of  an  action  by  a  pas- 
senger against  a  foreign  railroad  company 
for  injuries  sustained  by  collision  on  its 
railroad  in  another  state,  under  the  provi- 


sions of  Cal.  Code  Civ.  Proc.  §  395,  providing 
for  trial  in  any  county  whicli  the  plaintiff 
may  designate,  if  the  defendants  do  not  re- 
side in  the  state,  and  §  411,  providing  for 
service  of  summons  on  an  agent  of  the  cor- 
poration. Denver  &  R.  G.  R,  Co.  v.  Roller, 
41  C.  C.  A.  22,  100  Fed.  738,  49:  77 

77.  A  nonresident  creditor  of  a  foreign 
corporation  is  not  prevented  from  joining  in 
a  suit  to  have  the  assets  of  the  corporation 
which  are  within  the  jurisdiction  of  the 
court  placed  in  the  possession  of  a  receiver 
to  be  administered  tor  the  benefit  of  credi- 
tors, by  a  statute  providing  that  a  nonresi- 
dent cannot  maintain  a  suit  against  a  for- 
eign corporation  in  the  courts  of  the  state, 
unless  the  cause  of  action  arose  in  the  state 
or  its  subject-matter  has  its  situs  there.  J. 
A.  Holshouser  Co.  v.  Gold  Hill  Copper  Co. 
138  N.  C.  248,  50  S.  E.  o50,  70:  183 

78.  The  liability  for  damages  on  the  part 
of  a  corporation  which  has  assisted  in  fraud- 
ulently placing  the  title  to  property  of  a 
foreign  corporation  beyond  the  reach  of  its 
stockholders  by  taking  the  title  to  it  i"  its 
own  name  and  then  pledging  it  to  another 
nonresident  corporation  is  assets  witnin  the 
jurisdiction  of  the  court  where  the  wrong- 
doer resides.  Kidd  v.  New  Hampshire  Trac- 
tion Co.  72  N.  H.  273,  56  Atl.  465,  66:  574 
Action  against  insurance  company. 

79.  The  fact  that  an  insurance  association 
is  a  nonresident  corporation  does  not  deprive 
a  court  of  jurisdiction  to  enter  a  decree 
against  it  ordering  an  assessment  to  pay  a 
certificate.  Newman  v.  Covenant  Mut.  Ben. 
Asso.  76  Iowa,  56,  40  N.  W.  87,  1:  659 

80.  An  attempt  to  investigate,  overhaul, 
and  control  the  management  of  the  internal 
affairs  of  a  corporation  domiciled  in  an- 
other state,  by  compelling  it  to  exhibit  its 
books,  papers,  and  vouchers,  and  furnish  a 
list  of  policy  holderi  for  inspection,  and  to 
determine  questions  of  fraudulent  misappro- 
priation of  assets  and  the  reasonableness  of 
a  rate  of  assessment,  is  beyond  the  jurisdic- 
tion of  the  court.  Taylor  v.  Mutual  Reserve 
Fund  L.  Asso.  97  Va.  60,  33  S.  E.  385, 

45:  621 

81.  An  injunction  to  prevent  a  foreign  as- 
sessment insurance  company  from  taking 
any  proceedings  to  have  a  certificate  of 
membership  or  policy  of  insurance  declared 
lapsed  or  forfeited  for  failure  to  pay  an  al- 
leged illegal  and  extortionate  assessment 
cannot  be  granted,  for  the  reason  that  it 
could  not  be  enforced,  and  would  be  an  at- 
tempt to  control  and  overhaul  the  manage- 
ment of  a  corporation  in  another  jurisdic- 
tion. Id. 

82.  A  suit  to  enjoin  a  foreign  insurance 
company  to  which  all  assessments  are  pay- 
able at  its  home  office,  but  which  has  an 
agency  and  carries  on  business  within  the 
jurisdiction  of  the  court,  against  collecting 
from  a  resident  therein  any  excessive  and 
illegal  assessments,  and  against  forfeiting 
his  policy  for  nonpayment  of  such  assess- 
ments, while  seeking  also  an  accounting  and 
a  discovery  of  the  books  and  papers  of  the 
corjKjration,  and  a  determination  of  the  true 
basis  of  assessments,  is  beyond  the  power  or 


848 


COURTS,  L  c,  1. 


jurisdiction  of  a  court  of  equity,  as  the  relief 
sought  would  require  the  control,  direction, 
and  revision  of  the  internal  affairs  of  the 
corporation.  Clark  v.  Mutual  Reserve  Fund 
L.  Asso.  14  App.  D.  C.  154,  43:  390 

83.  An  injunction  forbidding  a  foreign  in- 
surance corporation  to  collect  or  levy  any 
further  assessments  upon  a  resident  member 
upon  the  plan  adopted  by  the  company 
would  require  an  investigation  and  control 
of  the  management  of  the  company,  and  is 
beyond  the  jurisdiction  of  the  court,  in  the 
absence  of  any  allegation  of  fraud,  although 
the  court  would  have  jurisdiction  in  case  of 
actual  fraud  in  inducing  the  plaintiff  to  be- 
come a  member  of  the  corporation,  to  his  pe- 
cuniary loss,  or  in  the  levying  and  collect- 
ing of  assessments,  or  if  the  suit  was  to  re- 
cover the  amount  due  on  his  policy  and  the 
defendant  had  declared  the  policy  forfeited 
for  failure  to  pay  the  assessments,  as  the 
latter  suit  would  be  merely  to  enforce  the 
contract  or  give  damages  for  its  breach. 
Howard  v.  Mutual  Reserve  Fund  L.  Asso.  125 
N.  C.  49,  34  S.  E.  199,  45:  853 

84.  An  accounting  between  a  foreign  mu- 
tual insurance  association  and  a  member  in- 
volves an  inquiry  into  the  internal  affairs  of 
the  company,  which  cannot  be  made  by  a 
court  outside  of  the  state  in  which  the  cor- 
poration has  its  home.  Condon  v.  Mutual 
Reserve  Fund  L.  Asso.  89  Md.  99,  42  Atl.  944, 

44:  149 

c.  Relation  to  Other  Departments  of  Gov- 
ernment. 

1.  In  General;  Political  Questions. 

As  to  Railroad  Company's  Location  of 
Tracks,  see  Eminent  Domain,  3,  4. 

See  also  supra,  9;  Municipal  Corporations, 
37. 

For  Editorial  Notes,  see  infra,  VI.  §  8. 

85.  The  motive  with  which  a  vessel  may 
be  quarantined  is  not  a  matter  for  the  courts 
to  consider,  when  the  health  board  had  the 
legal  power  and  right  to  act  as  it  did.  Com- 
pagnie  Frangaise  v.  State  Board  of  Health, 
51  La.  Ann.  645,  25  So.  591,  56:  795 
Executive  department. 

See  also  infra,  321;  Legislature,  9. 

86.  The  courts  cannot  interfere  to  arrest 
the  action  of  the  governor  in  suspending  an 
officer,  so  long  as  he  acts  within  the  power 
given  him  by  the  Florida  Constitution,  and 
cannot  review  his  decision  as  to  the  proof 
of  the  charge  against  an  officer,  that  power 
of  review  being  given  to  the  senate.  State, 
ex  rel.  Attorney  General  v.  Johnson,  30  Fla. 
433,  11  So.  845,  18:  410 

87.  Words  forbidding  the  removal  of  offi- 
cers "for  political  reasons,"  in  a  charter  au- 
thorizing the  governor  to  make  such  remov- 
als "at  anj'  time  for  cause,  to  be  stated  in 
writing,"  cannot  be  given  any  practical  ef- 
fect except  by  operating  on  the  conscienoe 
of  the  executive,  and  do  not  permit  the  re- 
view of  his  action  by  the  courts  on  the 
ground  that  a  removal  was  in  fact  made  by 
him  for  political  reasons,  contrary  to  his 
written  statement  of  the  case.     People  ex 


rel.  Engley  v,  Martin,  19  Colo.  565,  36  Pac. 
543,  24:  201 

88.  The  question  whether  or  not  a  "dis- 
agreement" exists  which  authorizes  the  gov- 
ernor to  adjourn  the  general  assembly,  under 
R.  I.  Const,  art.  7,  §  6,  is  one  on  which  the 
decision  of  the  governor  is  conclusive  and  is 
not  reviewable  by  the  courts.  Re  Legisla- 
tive Adjournment,  18  R.  I.  824,  27  Atl.  327, 

22:  716 
Railroad  commission. 
See  also  Carriers,  1101-1103. 

89.  The  court  cannot  interfere  with  tue  re- 
fusal of  the  railroad  commission,  under  Ky. 
Const.  §  218,  to  allow  a  less  charge  for  a 
longer  than  for  a  shorter  haul,  as  it  is  per- 
mitted to  do  in  special  cases  by  that  sec- 
tion. Louisville  &  N.  R.  Co.  v.  Com.  104  Ky. 
226,  46  S.  W.  707,  105  Ky.  179,  47  S.  W.  598, 

43:  541 
Removal  of  teacher. 

90.  The  power  to  remove  a  teacher  at 
pleasure,  given  to  the  board  of  regents  of 
normal  schools  by  Wis.  Rev.  Stat.  §  404, 
subd.  3,  is  discretionary,  and  cannot  be  re- 
viewed by  the  courts.  Gillman  v.  Regents 
of  Normal  Schools,  88  Wis.  7,  58  N.  W.  1042, 

24:  336 
Expulsion  of  pupil. 

91.  The  question  of  guilt  or  innocence  of  a 
pupil  expelled  from  the  public  schools  in 
accordance  with  established  rules  cannot  be 
reviewed  by  the  courts,  unless  it  appears 
that  he  was  expelled  arbitrarily  or  mali- 
ciously. Board  of  Education  v.  Booth,  110 
Ky.  807,  62  S.  W.  872,  53:  787 
Political  questions. 

As  to  Motive  in  Forming  Political  Party,  see 

Elections,  105. 
Injunction  to  Protect  Political  Rights,  see 

Injunction,  I.  h. 
See  also  infra,  129-135. 

92.  The  question  as  to  which  one  of  two 
factions  of  a  political  party  is  the  true  rep- 
resentative of  the  party  is  rather  a  political 
than  a  judicial  question,  and  will  not  be 
decided  by  a  court  as  the  basis  of  a  manda- 
mus to  the  secretary  of  state  to  recognize 
the  nominations  made  bv  one  faction  only. 
Phelps  v.  Piper,  48  Neb. '724,  67  N.  W.  755, 

33:  53 

93.  The  decision  of  the  state  central  com- 
mittee of  a  jKtlitical  party,  which,  by  the 
rules  of  the  party,  is  invested  with  full  con- 
trol of  the  management  of  its  affairs,  in  a 
contest  as  to  which  of  two  bodies  of  men 
constitutes  the  executive  committee  of  a 
certain  county,  is  conclusive  upon  the  courts, 
since  the  question  is  a  political  one,  and  the 
courts  have  no  power  to  question  the  regu- 
larity of  the  proceeaings  or  the  justice  of 
the  decision.  Davis  v.  Hambrick,  109  Ky. 
276,  58  S.  W.  779,  51:  671 

94.  The  decision  of  a  dispute  as  to  which 
of  two  persons  is  the  regular  party  nominee 
for  Congress,  when  made  by  the  governing 
authority  of  the  party  within  the  state,  such 
as  a  state  central  committee,  under  author- 
ity conferred  upon  it  by  the  state  conven- 
tion, is  conclusive  upon  the  courts.  Moody 
V.  Trimble,  109  Ky.  139,  68  S.  W.  504, 

60:  810 


COURTS,  I.  c,  2. 


849 


2.  Legislative  Department;  Statutes. 
a.  In  General. 

Delegation  of  Legislative  Power  to  Judicia- 
ry, see  Constitutional  Law,  I.  d,  3. 

Delegation  of  Judicial  Power  by  Legisla- 
ture, see  Constitutional  Law,  I.  d,  5. 

Usurpation  of  Power  by  Courts,  see  Consti- 
tutional Law,  I.  e. 

Encroachment  on  Judicial  Power,  see  Consti- 
tutional Law,  I.  e,  2. 

Extent  of  Punishment  for  Crime,  see  Crim- 
inal Law,  197. 

As  to  Validity  of  Statutes  Generally,  see 
Statutes,  I.  c. 

Rule  of  Decision  as  to  Determining  Consti- 
tutionality of  Statutes,  see  ia|ra,  V.  c. 

See  also  Statutes,  447. 

For  Editorial  Notes,  see  infra,  VI.  §§  4,  8. 

95.  The  judiciary  is  the  final  authority  in 
the  construction  of  the  Constitution  and  the 
laws,  and  its  construction  should  be  received 
and  followed  by  the  other  departments. 
People  ex  rel.  Engley  v.  Martin,  19  Colo.  565, 
36  Pac.  543,  24:  201 
Inquiry  into  motive  of  legislature. 

See  also  infra,  136,  215,  216. 

96.  Courts  cannot  inquire  into  the  motives 
of  legislators.  State  ex  rel.  Terre  Haute  v. 
Kolsem,  130  Ind.  434,  29  N.  E.  595,       14:  566 

97.  In  determining  the  question  of  the 
validity  of  a  statute  for  the  government  of 
cities,  the  courts  have  nothing  to  do  with 
its  wisdom,  propriety,  or  justice,  or  with  the 
motives  which  are  supposed  to  have  inspired 
its  passage.  Com.  ex  rel.  Elkin  v.  Moir,  199 
Pa.  534,  49  Atl.  351,  53:  837 
Inquiry  into  wisdom  of  legislation. 

See  also  supra,  97;  infra,  114,  115,  176. 

98.  It  is  for  the  legislature,  and  not  for 
the  court,  to  determine  whether  a  statute  is 
expedient  or  inexpedient,  politic  or  impol- 
itic. State  V.  Foster,  22  R.  I.  163,  46  Atl. 
833,  50:  339 

99.  Questions  relating  to  the  wisdom,  pol- 
icy, and  expediency  of  statutes  are  for  the 
people's  representatives  in  the  legislature 
assembled,  and  not  for  the  courts,  to  deter- 
mine.   Re  Boyce,  27  Nev.  299.  75  Pac.  1, 

65:  47 

100.  The  power  of  the  legislature  cannot 
be  restrained  by  the  courts  upon  considera- 
tion 01  policy  or  supposed  natural  equity. 
Territory  v.  Ah  Lim,  1  Wash.  156,  24  Pac. 
588,  9:  395 

101.  A  statute  which  does  not  violate 
some  provision  of  the  Constitution  cannot 
be  annulled  by  the  courts,  whether  its  pro- 
visions are  wise  or  unwise,  or  whether  its 
operations  be  hurtful  or  beneficial.  State  v. 
Henlev,  98  Tenn.   665,  41    S.  W.  352.   1104, 

39:  126 

102.  The  courts  cannot  overturn  a  law 
passed  within  constitutional  limitations,  on 
the  ground  that  it  is  unwise,  impolitic,  un- 
just, or  oppressive,  or  even  that  it  was  pro- 
cured by  corrupt  means.  State  ex  rel.  Mor- 
ris V.  Wrightson  (N.  J.  Sup.)  56  N.  J.  L. 
126,  28AtL56,  22:548 

L.R.A.  Dig.— 54- 


Form  or  enactment  of  statutes  generally. 

103.  Courts  must  enforce  a  constitutional 
provision  which  declares  that  certain  forms 
are  indispensable  in  the  passage  of  laws. 
Wells  V.  Missouri  P.  R.  Co.  110  Mo.  286, 
19  S.  W.  530,  15:  847 

104.  It  is  the  duty  of  the  court  to  exam- 
ine legislative  journals  to  .determine  the  dis- 
puted fact  whether  or  not  a  statute  as  pub- 
lished is  in  fact  that  which  was  passed  by 
the  legislature,  where  the  Constitution  re- 
quires that  each  house  shall  keep  a  journal, 
and  that  no  bill  shall  become  a  law  unless 
on  its  final  passage  the  vote  taken  by  ayes 
and  noes  is  entered  on  the  journal.  State  ex 
rel.  Cheyenne  v.  Swan,  7  Wyo.  166,  51  Pac. 
209,  40:  195 

105.  Fraud  in  procuring  the  enrolment  of 
a  bill  and  the  signature  thereto  by  the  presi- 
dent of  the  senate  and  the  speaker  of  the 
house  of  representatives,  but  which  is  on  its 
face  regular  and  in  due  form,  gives  the 
courts  no  power  to  order  its  removal  from 
the  files  of  the  secretary  of  state;  or  to  en- 
join ham  from  delivering  a  copy  to  the  pub- 
lic printer,  but  the  remedy,  if  any,  is  with 
the  legislature.  Carr  v.  Coke,  116  N.  C.  223, 
22  S.  E.  16,  '  28:  737 
Local  or  special  laws. 

Delegation  to  Court  of  Power  as  to,  see  Con- 
stitutional Law,  194. 

106.  The  question  whether  a  general  law 
can  be  made  applicable  to  a  particular  case 
is  for  the  legislature,  and  not  for  the  court, 
to  determine.  Pittsburgh,  C.  C.  &  St.  L.  R. 
Co.  V.  Montgomery,  152  Ind.  1,  49  N.  E.  582, 

69:  875 

107.  Whether  or  not  a  general  law  can  be 
made  applicable  to  a  subject-matter  not  in- 
cluded in  Ind.  Const,  art.  4,  §  22,  is  a  ques- 
tion of  legislative  judgment.  Bank  of  Com- 
merce V.  Wiltsie,  153  Ind.  460,  53  N.  E.  950, 

47:  489 

108.  The  enactment  of  a  local  or  special 
law  on  a  subject  not  enumerated  in  Ind. 
Const,  art.  4,  §  22,  is  an  expression  of  the 
opinion  and  judgment  of  the  legislature  that 
a  general  law  cannot  be  made  applicable, 
and  this  judgment  is  not  subject  to  be  re- 
viewed by  the  courts.  Indianapolis  v.  Na- 
vin,  151  Ind.  139,  156,  47  N.  E.  525,  51  N. 
E.  80,  41:337 

109.  Whether  a  statute  is  in  violation  of 
Ind.  Const,  art.  4,  §  23,  which  provides  that 
where  a  general  law  can  be  passed  it  shall 
be  general  and  operate  uniformly  through- 
out the  state,  is  a  question  for  the  legisla- 
ture, and  not  for  the  courts.  Evansville  v. 
State  ex  rel.  Blend,  118  Ind.  426,  21  N.  E. 
267,  4:  93 

110.  It  is  purely  a  legislative  question, 
subject  to  no  review  by  the  courts,  whether 
in  a  given  case  a  general  or  special  law 
should  be  enacted  under  a  state  Constitution 
which  provides  that  "in  all  other  cases 
where  a  general  law  can  be  made  applicable 
no  special  law  shall  be  enacted."  Edmunds 
V.  Herbrandson,  2  N.  D.  270,  50  N.  W.  970, 

14:  725 

111.  Courts  have  no  power  to  inquire 
whether  the  notice  of  application  to  the  leg- 
islature for  local  or  special  legislation,  which 


850 


COURTS,  1.  c.  2. 


is  required  by  the  Constitution  and  laws, 
was  or  was  not  given  before  the  passage  of 
such  legislation.  Stockton  v.  Powell,  29  Fla. 
1,    10   So.   688,  15:42 

112.  Whether,  in  any  given  case,  the  leg- 
islature has  transcended  its  power  and 
passed  a  law  in  conflict  with  the  constitu- 
tional limitation  in  respect  to  local  or  spe- 
cial laws,  is  essentially  a  question  of  law, 
and  must  necessarily  be  decided  by  the 
courts.  Ayars's  Appeal,  122  Pa.  266,  16  Atl. 
356,  2:  577 

113.  The  question  whether  or  not  a  gen- 
eral law  can  be  made  applicable  is  for  the 
court,  under  a  constitutional  provision  for- 
bidding the  enactment  of  special  laws  where 
general  ones  can  be  made  applicable,  when 
the  Constitution  also  provides  that  its  pro- 
visions shall  be  construed  to  be  mandatory 
and  prohibitory,  and  not  merely  directory. 
Carolina  Grocery  Co.  v.  Burnet,  61  S.  C.  205, 
39  S.  E.  381,  58:  687 

114.  Thp  wisdom  of  a  particular  classi- 
fication for  purposes  of  legislation  is  a  mat- 
ter exclusively  for  legislative  discretion. 
Julien  V.  Model  Building,  L.  &  I.  Asso.  116 
Wis.  79,  92  N.  W.  561,  61:  668 

115.  Whether  or  not  a  system  of  classi- 
fication prescribed  by  the  legislature  in  leg- 
islating upon  a  subject  concerning  which 
general  laws  are  not  required  is  good  or 
vicious,  will  not  be  determined  by  the  ju- 
diciary. State  ex  rel.  Terre  Haute  v.  Kol- 
sem,  130  Tnd.  434  29  N.  E.  595,  14:  566 
Determination  or  finding  of  fact. 

See  also  infra,  148. 

116.  A  legislative  determination  of  the 
fact  that  the  burning  of  natural  gas  in  flam- 
beau lights  is  wasteful  and  extravagant  is 
conclusive  on  the  court.  Townsend  v.  State, 
147  Ind.  624,  47  N.  E.  19,  37:  294 

117.  A  finding  of  the  legislature,  recited  in 
a  statute,  respecting  disputed  facts  on  which 
a  claim  is  asserted  against  a  board  of  edu- 
cation, will  not  estop  the  board  from  con- 
testing the  facts  in  court.  Marion  Twp.  Bd. 
of  Edu.  V.  State  ex  rel.  Lindsey,  51  Ohio  St. 
531.  38  N.  E.  614,  25:  770 
Powers  of  legislature. 

118.  A  bouse  of  representatives  is  not  the 
final  judge  of  its  own  powers  and  privileges 
in  cases  in  which  the  rights  and  liberties  of 
the  subject  are  concerned;  but  the  legality 
of  its  action  in  such  cases  may  be  examined 
and  determined  bv  the  court.  Re  Gunn,  50 
Kan.  155,  32  Pac.  M8,  19:  519 
Cons<-itutional  amendment. 

119.  The  judicial  department  of  the  gov- 
ernment has  the  right  to  consider  whether 
the  legislative  department  and  its  agencies 
have  observed  constitutional  ininnctions  in 
attempting  to  amend  the  Constitution,  and 
to  annul  their  acts  in  case  they  have  not 
done  so.  State,  Bott,  Prosecutor,  v.  Wurts. 
(N.  J.  Err.  &  App.)  63  N.  J.  L.  289,  43 
Atl.  744.  881,  45:  251 

120.  The  question  whether  a  proposed  con- 
stitutional amendment  is  in  conformity  with 
the  constitutioml  requirements  in  constitu- 
tine  but  a  single  amendment,  and  also  the 
question  whether  the  proposition  has  re- 
ceived such  a  majority  as  the  Constitution 


prescribes  for  its  adoption,  are  judicial  ques- 
tions  for  the  courts  to  decide,  notwithstand- 
ing the  fact  that  tne  legislature  has  de- 
clared that  the  amendment  is  adopted  and 
that  it  is  a  part  of  the  Constitution  of  the 
state.  State  ex  rel.  McClurg  v.  Powell,  77 
Miss.  543,  27  So.  927,  48:  652 

121.  An  attempt  to  amend  the  Constitu- 
tion by  submission  of  a  question  under  joint 
resolution  of  the  legislalure,  even  if  it  may 
be  ineffectual,  is  within  the  exercise  of  leg- 
islative duty  which  a  court  cannot  interfere 
with  by  injunction.  State  ex  rel.  Cranmer 
V.  Thorson,  9  S.  D.  149,  68  N.  W.  202, 

33:  582 
City  limits. 

Delegation  of  Power  as  to,  see  Constitution- 
al Law,  195,  196. 

122.  Courts  cannot  revise  the  legislative 
discretion  as  to  the  extent  of  the  territorial 
limits  of  a  municipality.  Kimball  v.  Grants- 
ville  City,  19  Utah,  368,  57  Pac.  1,  45:  628 
Grade  crossing. 

123.  The  judgment  of  the  legislature  as 
to  the  propriety  of  requiring  a  railroad  com- 
pany to  conform  the  grade  of  its  tracKs  at  a 
street  crossing  to  that  of  the  street  for  the 
purpose  of  making  the  crossing  more  safe 
for  travelers  does  not  conclude  all  inquiry 
by  the  courts  as  to  the  existence  of  facts 
essential  to  support  the  exercise  of  such 
power.  Houston  &  T.  C.  R.  Co.  v.  Dallas, 
98  Tex.  396,  84  S.  W.  648,  70:850 

Compulsory  education. 

124.  Whether  or  not  a  statute  requiring 
the  attendance  of  children  at  school  is 
"wholesome  and  reasonable"  is  a  legislative, 
and  not  a  judicial,  question,  where  the  legis- 
lature has  constitutional  power  to  pass  all 
manner  of  wholesome  and  reasonable  laws 
as  they  may  judge  for  the  benefit  and  wel- 
fare of  the  state.  State  v.  Jackson,  71  N.  H. 
552,  53  Atl.  1021,  60:  739 
Location  of  public  institution. 

125.  The  validity  of  a  location  by  the  leg- 
islature of  a  public  institution  is  not  beyond 
review  in  the  courts  on  the  ground  that  it 
is  a  legislative  question,  under  Or.  Const, 
art.  14,  §  3,  which  amounts  to  a  location  of 
such  institutions  at  the  seat  of  government. 
State  ex  rel.  McCain  v.  Metschan,  32  Or.  372, 
46  Pac.  791,  41:692 
Lawfulness  of  imprisonment. 

126.  The  supreme  court  of  Kansas  has 
power  on  habeas  corpus  to  inquire  into  the 
lawfulness  of  the  imprisonment  by  an  order 
or  resolution  of  the  house  of  representatives 
of  the  state.  Re  Gunn,  50  Kan.  155,  32  Pac. 
948,  19:  519 
Expulsion  of  member  of  legislature. 

127.  The  court  cannot  supervise  the  exer- 
cise by  the  legislature  of  its  constitutional 
power  to  expel  a  member.  French  v.  Senate, 
146  Cal.  604,  80  Pac.  1031,  69:  556 
Rival  legislatures. 

128.  The  judicial  department  has  juris- 
diction to  decide  which  of  two  rival  bodies, 
each  claimed  to  be  the  state  senate,  is  the 
coni'Jtutional  body.  Attorney  General  ex 
rel.  Werts  v.  Rogers  (N.  J.  Sup.)  56  N.  J. 
L.  480,  28  Atl.  726,  29  Atl.  173.  23:  354 


COURTS.  I.  c,  2. 


861 


Apportionment. 

129.  The  constitutionality  of  a  letrislative 
apportionment  act  is  a  judicial  question,  and 
not  one  which  the  court  cannot  consider  on 
the  ground  that  it  is  a  political  question. 
Parker  v.  State  ex  rel.  Powell,  133  Ind.  178, 
■        32  M.  E.  836,  18:  567 

P  130.  An  injunction  to  prevent  the  secre- 

^  tary  of  state  from  issuing  notices  of  elec- 
tion under  an  unconstitutional  apportion- 
ment act  gerrymandering  the  state  is  not  a 
usurpation  of  authority  by  the  court,  on  the 
ground  that  the  question  is  a  political  one, 
but  the  constitutionality  of  the  act  is  pure- 
ly a  judicial  question.  State  ex  rel.  Adams 
County  V.  Cunningham,  81  Wis.  440,  51  N. 
W.  724,  15:  561 

131.  The  fact  that  the  action  may  have  a 
political  effect,  and  in  that  sense  etrect  a 
political  object,  does  not  make  the  questions 
involved  in  a  suit  to  declare  the  unconsti- 
tutionality of  an  apportionment  act  political 
instead  of  judicial.  State  ex  rel.  Lamb  v. 
Cunningham,  83  Wis.  90,  53  N.  W.  48, 

17:  145 

132.  An  unconstitutional  apportionment 
law  may  be  declared  void  by  the  courts,  not- 
withstanding the  fact  that  such  statute  is 
an  exercise  of  political  power.  Denny  v. 
State  ex  rel.  Easier,  144  Ind.  503,  42  N.  E. 
929,  31:726 

133.  The  constitutionality  of  an  appor- 
tionment act  is  a  subject  of  judicial  inquiry, 

L  and  not  a  mere  political  question.  State 
I  ex  rel.  Morris  v.  Wxightson  (N.  J.  Sup.)  56 
f       N.  J.  L.   126,   28  Atl.  56,  22:  548 

134.  The  constitutionality  of  a  statute 
forming  a  delegate  district  or  apportioning 
delegates  for  the  house  of  delegates  is  a  ju- 
dicial question  for  the  courts,  although  the 
statute  is  an  exercise  of  political  power. 
Harmison  v.  Jefferson  County  Ballot  Comrs. 
45  W.  Va.  179,  31  S.  E.  394,  4z:   591 

135.  The  approximation  to  the  dual  con- 
stitutional requirements  of  county  repre- 
sentation and  proportionate  popular  repre- 
sentation, in  the  enactment  of  an  apportion- 
ment law  by  the  legislature,  is  not  review- 
able by  the  courts  except  for  gross  abuse  of 
discretion  and  providing  both  objects  con- 
templated in  the  Constitution  are  kept  in 
view.  Denny  v.  State  ex  rel.  Easier,  144  Ind. 
503,  42  N.  E.  929,  31 :  726 
Appropriation. 

136.  The  purpose  of  the  legislature  to  ap- 
propriate public  money  for  the  benefit  of  an 
individual  cannot  be  determined  by  the 
courts  on  the  testimony  of  witnesses,  when 
it  has  expressed  its  purpose,  in  the  bill  it- 
self, to  be  the  enlargement  or  improvement 
of  a  public  canal.  Waterloo  Woolen  Mfg. 
Co.  V.  Shanahan,  128  N.  Y.  345,  28  N.  E. 
358,  14:  481 
Decision  of  Congress. 

137.  The  decision  by  Congress  that  a 
bridge  across  a  navigable  body  of  water, 
erected  under  authority  of  a  state  statute 
which  provides  that  it  shall  not  unnecessa- 
rily obstruct  the  navigation,  is  lawful,  is  con- 
clusive upon  the  state  courts  as  to  whether 
or  not  the  conditions  have  been  complied 
with.  Frost  v.  Washington  County  R.  Co. 
96  Me.  76,  51  Atl.  806,  59:  68 


6.  Police  Power. 


Rules  of  Court  in  Deciding  as  to,  see  infra, 

487. 

138.  It  is  for  the  courts  to  determine  what 
are  the  subjects  upon  which  the  police  power 
is  to  be  exercised,  and  the  reasonableness  of 
that  exercise.  Re  Morgan,  26  Colo.  415,  58 
Pac.  1071,^  47:  52 

139.  It  is  a  judicial  question  whether  a 
trade  or  calling  is  of  such  a  nature  as  to 
justify  police  regulation.  Eden  v.  People, 
161  111.  296,  43  N.  E.  1108,  32:  659 

140.  The  question.  What  are  the  subjects 
of  police  power?  is  a  judicial  one;  but  the 
question  as  to  when  an  exigency  exists  for 
the  exercise  of  the  power  is  for  the  legis- 
lature to  decide.  State  v.  Gerhardt,  145  Ind. 
439,  44  N.  E.  469,  33:  313 

141.  Although  the  legislature  may  deter- 
mine when  the  exigency  exists  for  the  ex- 
ercise of  the  police  power,  yet  it  is  for  the 
courts  to  determine  what  are  the  subjects 
of  the  exercise  of  this  power.  Bessette  v. 
People,  193  111.  334,  62  N.  E.  215,  56:  558 

142.  The  court  cannot  declare  an  act  of 
the  legislature  which  has  a  real  and  sub- 
stantial relation  to  the  police  power  void  for 
unreasonableness.  State  v.  Hyman,  98  Md. 
596,  57  Atl.  6,  64:  637 

143.  If  any  conceivable  circumstances 
would  justify  the  exercise  of  police  power, 
the  legislature,  and  not  the  courts,  is  to 
judge  of  the  existence  or  prevalence  of  such 
circumstances.  [Case  affirmed  by  equal  di- 
vision.] Peel  Splint  Coal  Co.  v.  State,  36  W. 
Va.  802,  15  S.  E.  1000,  17:  385 

144.  It  is  the  province  of  the  courts  to 
determine  whether  a  statute  purporting  to 
be  an  exercise  of  the  police  power  of  the 
state,  but  taking  away  the  property  of  a 
citizen  or  interfering  with  his  personal  lib- 
erty, is  an  appropriate  measure  for  the  pro- 
motion of  the  comfort,  safety,  and  welfare 
of  society.  Ritchie  v.  People,  155  111.  98, 
40  N.  E.  454,  29:  79 

145.  When  the  police  power  is  exerted  for 
the  purpose  of  regulating  a  useful  business 
or  occupation  and  the  mode  in  which  that 
business  may  be  carried  on  or  advertised, 
the  legislature  is  not  the  exclusive  judge  as 
to  what  is  a  reasonable  restraint  upon  the 
constitutional  right  of  the  citizen  to  pursue 
his  calling  or  to  exercise  his  own  judgment 
as  to  the  manner  of  conducting  it.  Ruhstrat 
v.  People,  185  111.  133,  57  N.  E.  41,      49:  181 

146.  The  constitutional  requirement  that 
police  powers  shall  be  wholesome  and  rea- 
sonable does  not  justify  the  court  in  setting 
aside  a  statute  upon  a  subject  in  regard  to 
which  the  legislature  is  authorized  to  act 
because  the  opinion  of  the  judge  diflFers  from 
that  of  the  legislators  on  the  question 
whether  it  will  be  for  the  good  and  welfare 
of  the  state.  Com.  v.  Pear,  183  Mass.  242, 
66  N.   E.  719,  67:  935 

147.  It  is  the  duty  of  the  courts  to  exam- 
ine legislation  complained  of  as  a  violation 
of  the  rights  secured  to  the  citizens  by  the 
Constitution,  for  the  purpose  of  ascertain- 
ing whether  the  health,  morals,  safety,  or 
welfare  of  the  public  justifies  its  enactment 


852 


COURTS,  I.  c.  2. 


under  the  police  power  of  the  state.  Peo- 
ple ex  rel.  Tyroler  v.  Warden  of  New  Y.ork 
City  Prison,  157  N.  Y.   116,  51  N.  E.  1006, 

43:  264 

148.  The  question  whether  a  given  habit 
is  detrimental  to  either  the  moral,  mental, 
or  physical  well-being  of  a  citizen,  or  wheth- 
er the  habitual  use  of  a  particular  drug  is 
deleterious  to  himself,  so  as  to  justify  leg- 
islative prohibition  of  its  use  by  individuals, 
is  one  of  fact  which  can  only  be  inquired 
into  by  the  legislature,  and  not  by  the 
courts  in  determining  the  constitutionality 
of  the  prohibition.  Territory  v.  Ah  Lim,  1 
Wash..  156,  24  Pac.  588,  9:395 

c.  Public  Purpose;   Tax;   Eminent  Domain. 

149.  The  determination  by  the  legislature 
of  the  question  what  is  a  public  purpose  is 
not  conclusive  upon  the  courts.  State  ex 
rel.  Douglas  County  v.  Cornell,  53  Neb.  556, 
74  N.  W.  59,  39:  513 
Taxes. 

Consideration  of  Municipal  Tax,  see  infra, 

196,  197. 
Review  of  Taxes  Generally,  see  Taxes,  III. 

c. 

150.  A  tax  law  will  not  be  declared  invalid 
on  the  ground  that  the  tax  is  not  for  the 
benefit  of  the  public,  unless  it  is  for  the 
furtherance  of  an  object  or  enterprise  in 
which  the  public  has  palpably  no  interest. 
State  ex  rel.  Douglas  County  v.  Cornell,  53 
Neb.   556,  74  N.   W.  59,  39:  513 

151.  The  decision  of  the  question  whether 
a  tax  or  a  public  debt  is  for  a  public  or 
private  purpose  is  not  a  legislative,  but  a  ju- 
dicial, function,  and  a  legislature  cannot 
make  a  private  purpose  a  public  purpose,  or 
draw  to  itself  or  create  the  power  to  author- 
ize a  tax  or  a  debt  for  such  a  purpose,  by  its 
mere  fiat.  Dodge  v.  Mission  Twp.  46  C.  C. 
A.  661,  107  Fed.  827,  54:  242 

152.  Courts  have  no  power  to  give  any  re- 
lief against  erroneous  assessments  of  boards 
whose  assessments  for  taxation  are  made 
final  by  statute.  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  V.  Backus,  133  Ind.  513,  33  N.  L.  421, 

18:  729 

153.  The  duty  of  determining  what  is  a 
wise  and  fair  mode  of  distributing  the  bur- 
den of  taxation  is  a  purely  legislative  power, 
which  the  judicial  department  of  the  gov- 
ernment cannot  exercise.  State  v.  Travel- 
ers'   Ins.    Co.    73    Conn.    255,    47    Atl.    299. 

57:  481 

154.  The  good  faith  of  the  legislature  in 
imposing  a  privilege  tax  on  railroad  com- 
panies that  have  charter  exemptions  from  ad 
valorem  taxation,  or  the  motive  to  deprive 
them  of  that  exemption,  cannot  be  inquired 
into  bv  the  courts.  Knoxville  &  0.  li.  Co. 
V.  Harri.s,  99  Tenn.  684,  43  S.  W.  115. 

53:  921 

155.  To  determine  the  amount  of  revenue 
required  for  the  needs  of  a  municipality, 
when  not  limitwl  by  constitutional  barriers, 
is  within  the  sole  discretion  of  the  legisla- 
tive authorities,  and  the  courts  have  no  war- 


rant to  interfere  with  that  discretion.    Stull 
V.  De  Mattos,  23  Wash.  71,  62  Pac.  451, 

51:  892 
Eminent  domain. 

See  also   infra,    186;    Eminent  Domain,  59, 
82. 

156.  Whether  or  not  a  purpose  for  which 
private  property  is  sought  to  be  taken 
under  the  power  of  eminent  domain  is  a  pub- 
lic one  is  a  judicial  question.  Ulmer  v.  Lime 
Rock  R.  Co.  98  Me.  579,  57  Atl.  1001, 

66:  387 

157.  Whether  a  particular  use  for  which 
private  property  is  sought  to  be  taken  is 
public  or  private  is  a  question,  not  for  the 
legislature,  but  for  the  judiciary.  Arnsper- 
ger  v,  Crawford,  10  Md.  247,  61  Atl.  413, 

70:  497 

158.  The  legislative  determination  that  a 
particular  use  is  a  public  use,  justifying  the 
exercise  of  the  power  of  eminent  domain, 
though  entitled  to  the  benefit  of  strong  pre- 
sumption, is  not  conclusive  upon  the  court. 
Ryan  v.  Louisville  &  N.  Terminal  Co.  102 
Tenn.  Ill,  50  S.  W.  744,  45:  303 

159.  The  legislature  cannot  make  a  pri- 
vate use  public  by  calling  it  so,  so  as  to  jus- 
tify an  exercise  of  the  power  of  eminent  do- 
main in  its  behalf;  the  question  of  its  public 
character  must  be  determined  by  the  court. 
Brown  v.  Gerald,  100  Me.  351,  61   Atl.  785, 

70:  472 

160.  The  actual  purpose  for  which  a  cor- 
poration intends  to  exercise  its  power  of 
eminent  domain  is  subject  to  judicial  in- 
quiry, where  it  is  authorized  to  use  it  for 
several  purposes,  some  of  which  the  legis- 
lature had  no  constitutional  power  to  grant. 

Id. 

161.  Whether  a  particular  improvement 
under  a  statute  providing  a  general  system 
for  draining  wet  and  overflowed  land  will 
inure  to  the  public  health,  convenience,  or 
welfare  is  a  judicial  question  which  the  leg- 
islature cannot  determine  to  the  exclusion 
of  the  courts.  State  ex  rel.  Utick  v.  Polk 
County  Comrs.  87  Minn.  325,  92  N.  W.  216, 

60:  161 

162.  Whether  it  was  expedient  or  neces- 
sary that  the  right  of  eminent  domain  shall 
l>e  exercised  for  a  particular  public  use,  is 
generally  for  the  determination  of  the  legis- 
lature. '  Brown  v.  Gerald,  100  Me.  351,  61 
Atl.  785,  '        70:  472 

163.  The  question  as  to  the  propriety  and 
necessity  of  legislation  authorizing  the  tak- 
ing of  private  property  for  public  use  be- 
longs exclusively  to  the  legislature,  in  the 
exercise  of  whose  judgment  in  regard  there- 
to the  courts  have  no  power  to  interfere. 
State  ex  rel.  Utick  v.  Polk  County  Comrs.  87 
Minn.   325,  92  N.  W.  216,  60:  161 

104.  Although  the  determination  of  the 
legislature  is  not  conclusive  that  a  purpose 
for  which  it  directs  property  to  be  taken  is 
a  pui)lic  use,  yet  it  is  conclusive,  if  the  use 
is  public,  that  a  necessity  exists  which  re- 
quires the  propertv  to  be  taken.  Moore  v. 
Sanford.  151  Mas3.'285,  24  N.  E.  323,    7:  151 

165.  The  legislature,  and  not  the  court, 
must  decide  whether  or  not  there  is  such 
a  demand  for  lights  in  a  particular  locality 


COURTS.  I.  c.  2. 


858 


as  to  justify  the  exercise  of  the  power  of 
eminent  domain  for  the  construction  of  au 
electric  line  to  supply  it.  Brown  v.  Gerald, 
100  Me.  351,  61  Atl.  785,  VO:  472 

d.  OflBces;  Elections. 

See  also  supra,  127. 

166.  An  attempt  by  the  legislature  to  re- 
move a  judge  for  causes  which  do  not  give 
the  legislature  any  constitutional  authority 
to  remove  him  is  subject  to  review  by  the 
judiciary.  McCulley  v.  State,  102  Tenn.  509, 
53   S.  W.  134,  46:  567 

167.  Bitter  and  intense  feeling  agaiust 
township  trustees,  in  the  communities  where 
they  reside,  cannot  be  considerfi4  by  the 
courts  in  determining  the  validity  of  an  act 
extending  the  time  for  the  election  of  their 
successors.  State  ex  rel.  Harrison  v.  Men- 
augh,  151  Ind.  260,  51  N.  E.  117,  357,    43:  408 

168.  The  determination  of  the  legislature 
in  abolishing  an  office  and  creating  a  new 
one,  that  the  change  of  duties  or  burdens  is 
sufficient  to  make  the  latter  a  different  office, 
cannot  be  reviewed  by  courts,  provided  the 
act  is  otherwise  valid.  State  ex  rel.  Yancey 
V.  Hyde,  129  Ind.  296,  28  N.  E.  186,     13:  79 

169.  A  determination  of  an  election  con- 
test for  the  offices  of  governor  and  lieuten- 
ant governor,  by  the  legislature,  which,  by 
Ky.  Const.  §  90,  is  made  the  sole  tribunal 
to  determine  such  contest,  and  which  pro- 
ceeds under  Ky.  Stat.  §  1596a,  subs.  8,  by 
referring  the  matter  to  a  board,  and  re- 
ceives its  report  before  determining  the  con- 
test, cannot  be  reviewed  by  the  courts  on 
the  grounds  that  the  notice  of  contest  or  the 
evidence  was  insufficient,  or  that  the  contest 
board  was  not  fairly  drawn  by  lot,  as  re- 
quired by  statute,  or  that  the  election  should 
have  been  held  void,  where  the  findings  by 
the  legislature  do  not  show  that  it  was  void. 
Taylor  v.  Beckham,  108  Ky.  278,  56  S.  W. 
177,  49:  258 

170.  The  jurisdiction  of  a  court  to  compel 
town  officers  to  call  a  new  election  for  a 
member  of  the  general  assembly,  as  required 
by  statute,  is  not  defeated  by  tflie  fact  that 
each  house  is  the  judge  of  the  elections  and 
qualifications  of  its  members,  and  that  the 
ordering  of  a  new  election  may  involve  the 
question  of  the  validity  of  a  prior  election. 
State  v.  South  Kingstown,  18  R.  I.  2b8,  27 
Atl.  599,  22:  65 

e.  Regulation  of  Business;   License. 

See  also  infra,  185. 

171.  It  is  competent  for  the  courts  to  de- 
termine whether  any  particular  regulations 
of  an  ordinary  business  or  occupation  is  a 
reasonable  restriction  upon  the  constitution- 
al right  of  a  citizen  to  engage  therein.  Ex 
parte    Whitwell,    98   Cal.    73,   32   Pac.    870. 

19:  727 

172.  Courts  have  no  power  to  make  an  ar- 
rangement of  the  business  intercourse  of 
coinnion  carriers  such  as  they  think  ought 
to  be  made,  because  such  function  is  legis- 
lative rather   than  judicial.     State  ex  rel. 


Board  of  Transp.  v.  Sioux  City,  O.  &  W.  R. 
Co.  46  Neb.  682,  65  N.  W.  766,  31:  47 

173.  The  legislature  must  be  the  judge  as 
to  whether  or  not  there  is  reason  to  appre- 
hend fraud  in  the  sale  of  goods  by  itinerant 
vendors  when  it  enacts  a  stringent  license 
law  for  the  prevention  of  fraud  in  such 
sales.  State  v.  Harrington,  68  Vt.  622,  35 
Atl.  515,  34:  100 
Reasonableness  of  license  fee. ' 

174.  The  reasonableness  of  license  fees  in 
respect  to  their  amount,  when  imposed,  not 
by  municipal  ordinance  without  legislative 
authority,  but  by  the  state  through  legisla- 
tive enactment,  is  conclusively  established 
by  the  statute,  and  cannot  be  reviewed  by 
the  courts.  State  v.  Harrington,  68  Vt.  622, 
35  Atl.  515,  34:  100 

175.  The  action  of  the  legislature  in  fixing 
the  amount  of  the  license  fee  imposed  upon 
a  business  for  purposes  of  regulation  is  con- 
clusive, unless,  beyond  serious  doubt,  it  is 
manifest  that  the  amount  of  the  fee  has 
been  established,  not  with  regard  to  the  pur- 
pose of  regulation,  with  a  view  of  protecting 
the  public  welfare,  but  with  the  real  purpose 
to  raise  revenue  under  the  guise  of  the  police 
power,  or  to  subvert  the  proper  exercise  of 
that  power  to  the  prohibition  of  the  right  of 
the  citizen  to  exercise  a  lawful  calling. 
Price  v.  People,  193  111.  114,  61  N.  E.  844, 

55:  588 
Regulation  of  rates. 

176.  If  legislative  power  exists  to  inter- 
fere with  a  certain  business  and  regulate  its 
charges,  the  court  has  nothing  to  do  with 
the  policy  or  wisdom  of  interference  in  a 
particular  case,  or  with  the  question  of  the 
adequacy  or  inadequacy  of  the  compensa- 
tion authnri''ed.  People  v.  Budd,  117  N.  Y. 
1,  22  N.  E.  670,  5:  559 

177.  The  powefr — the  jurisdiction — to  de- 
termine in  advance  what  compensation  a 
public-service  corporation  may  exact  for 
services  to  be  rendered,  is  a  legislative  and 
not  a  judicial  function.  Nebraska  Teleph. 
Co.  v.  State  ex  rel.  Yeiser,  55  Neb.  627, 
76  N.  W.  171,  45:  113 

178.  The  fixing  of  rates  by  legislative  pow- 
er 01*  otherwise  than  by  appropriate  judicial 
proceedings  in  which  full  notice  and  oppor- 
tunity to  appear  and  defend  are  given  is  re- 
viewable by  the  courts, — at  least  to  the  ex- 
tent of  ascertaining  whether  such  rates  will 
furnish  some  reward  for  the  property  used 
and  services  furnished.  San  Diego  Water 
Co.  V.  San  Diego,  118  Cal.  556,  50  Pac.  633, 

38:  460 

179.  An  inquiry  by  the  courts  into  the 
reasonableness  of  rates  established  by  state 
authority  for  railroad  transportation  is  not 
prevented  by  the  fact  that  the  legislature 
has  pursued  the  forms  of  law  in  prescribing 
a  schedule  of  rates;  but  the  question  is  open 
and  must  be  dc'ded  in  each  case,  whether 
the  rates  prescribed  are  within  the  limits  of 
legislative  power,  or  are  mere  proceedings 
winch,  if  not  restrained,  will  work  a  con- 
fiscation of  property.  Chicago  &  N.  W.  R. 
Q.O.  V.  Dey,  35  Fed.  866,  1:  V44 

180.  xhe  courts  have  no  power  to  interfere 
with  rates  for  railroad  transportation  fixed 


854 


COURTS,  I.  c,  3. 


by  a  state,  when  such  rates  will  give  some 
compensation,  however  small,  to  the  owners 
of  railroad  property;  but  it  is  their  duty  to 
interfere  when  the  rates  prescribed  will  not 
pay  any  compensation  to  the  owners,— i.  e., 
some  dividend  to  stockholders  after  payment 
of  fixed  charges  and  cost  of  service.  Chicago 
&  N.  W.  R.  Co.  V.  Dey,  35  Fed.  866,      1:  744 

3.  Municipal  Matters. 

a.  In  General. 

Review  of  Determination  of  County  Commis- 
sioners, see  Counties,  18. 

181.  A  court  cannot  declare  void  a  con- 
tract for  the  term  of  twenty-one  years  made 
by  a  city  in  the  exercise  of  discretionary 
power  given  by  the  legislature  to  determine 
the  length  of  the  term  of  such  contract. 
Illinois  Trust  &  Sav.  Bank  v.  Arkansas  City, 
22  C.  C.  A.  171,  40  U.  S.  App.  257,  76  Fed. 
271,  34:  518 

182.  A  resolution  by  which  a  common 
council  undertakes  to  make  a  compromise 
with  a  contractor  to  whom  something  is 
equitably  due,  though  perhaps  nothing  le- 
gally, on  a  contract  imperfectly  performed, 
does  not  constitute  a  legislative  act,  but  is 
part  of  the  administrative  duties  ot  the 
council,  which  may  be  declared  void  for 
fraud  and  corruption.  Weston  v.  Syracuse. 
158  N.  Y.  274,  53  N.  E.  12,  43:  678 
Incoriwration  or  annexation. 

183.  I'he  legislative  character  of  the  func- 
tion of  annexation  of  territory  to  a  city  does 
not  preclude  judicial  examination  and  de- 
cision on  questions  as  to  the  preliminary 
steps  and  the  truth  and  suflBciency  of  the 
petition  for  annexation.  Forsyth  v.  Ham- 
mond, 142  Ind.  505,  40  N.  E.  267,  41  N.  E. 
950,  30:  576 
As  to  ofSces. 

184.  In  the  absence  of  legislative  author- 
ity, the  common  council  of  a  city  has  no 
power  to  determine  the  election  and  quali- 
fications of  the  mayor,  so  as  to  prevent  the 
courts  from  determining  as  to  his  rights  to 
the  office.  Buckman  v.  State  ex  rel.  Spen- 
cer, 34  Fla.  48,  15  So.  697,  24:  806 
License. 

See  also  supra,  I.  c,  2,  e. 

185.  The  intent  of  the  council  that  a  li- 
cense tax  shall  be  prohibitory  is  immaterial, 
if  the  council  has  power  to  impose  the  tax 
for  the  purpose  of  raising  revenue  and  the 
ordinance  imposing  it  is  valid  on  its  face. 
Stull  V.  DeMattos,  23  Wash.  71,  62  Pac.  451, 

51 :  892 
Necessity  of  taking  property. 

186.  The  question  of  the  necessity  for  tak- 
ing particular  property  to  aid  in  furnishing 
a  municipal  water  supply  cannot  be  left 
finally  to  the  municipality  without  any  right 
of  appeal  to  the  courts,  under  a  constitution 
permitting  property  to  be  taken  under  the 
right  of  eminent  domain  only  when  neces- 
sarv  for  public  use.  Steams  v.  Barre.  73  Vi. 
281.  50  Atl.  1086,  58:  240 
As  to  highways  generally. 

Power  of  Courts  as  to  Plan  for  Street  Rail- 
way on,  see  Constitutional  Law,  247. 
See  also  infra,  210,  211. 


187.  Discretion  vested  in  a  city  council  to 
extend  the  city  streets  across  a  railroad 
right  of  way  at  grade,  or  upon  a  bridge  or 
viaduct,  will  aot  be  controlled  by  the  court. 
Illinois  C.  R.  Co.  v.  cnicago,  141  111.  5S6.  30 
N.  E.  1044,  1/:  530 

188.  The  power  of  a  court  of  equity  to 
compel  a  railroad  company  to  comply  with 
its  duty  to  restore  a  street  to  a  proper  con- 
dition is  not  defeated  by  any  powers  which 
a  citv  council  mav  have.  Moundsville  v. 
Ohio  River  R,  Co. '37  W.  Va.  92,  16  ».  E. 
514,  20:  161 

189.  The  jurisdiction  of  a  court  to  enjoin 
interference  with  the  operation  of  a  street 
railroad  by  moving  a  building  along  a  street 
is  not  excluded  by  the  general  jurisdiction 
of  a  common  council  over  the  streets.  Wil- 
liams V.  Citizens  R.  Co.  130  Ind.  71,  29  N.  E. 
408,  15:  64 

190.  The  decision  by  the  cotomon  council 
of  a  city,  that  trees  growing  within  the 
limits  of  a  sidewalk  are  obstructions  which 
should  be  removed,  is  not  reviewable  by  the 
courts  in  the  absence  of  any  evidence  to 
show  an  abuse  of  discretion.  Chase  v.  Osh- 
kosh,  81  Wis.  313,  51  N.  W.  560,       15:  553 

191.  Equity  may  review  the  action  of  a 
municipal  corporation  in  declaring  orna- 
mental trees  adjoining  the  curb  m  the  street 
in  front  of  private  property  to  be  nuisances, 
and  ordering  their  removal.  Frostburg  v. 
Wineland,  98  Md.  239,  56  Atl.  811,  64:  627 
As  to  local  improvements. 

See  also  infra,  507. 

192.  The  determination  of  corporate  au- 
thorities as  to  what  is  a  local  improvement 
is  the  subject  of  review  bv  the  courts.  Chi- 
cago V.  Blair,  149  111.  310*  36  N.  E.  829, 

24:  412 

193.  The  location  of  a  sidewalk  upon  a 
street  is,  under  the  Illinois  statute,  within 
the  discretion  of  the  city  authorities,  and 
cannot  be  interfered  with  by  the  courts. 
Mt.  Garmel  v.  Shaw,  155  111.  37,  39  N.  E. 
584,  27:580 

194.  The  determination  of  a  public  im- 
provement commission  to  construct  a  new 
curb,  sustained  by  some  evidence  of  its 
necessity,  is  not  reviewable  by  the  courts, 
where  the  commission  has  statutory  author- 
ity to  construct  curbing  whenever  they  deem 
the  same  necessary,  and  whenever,  in  their 
judgment,  the  public  convenience  requires  it. 
People  ex  rel.  North  v.  Featherstonhaugh, 
172  N.  Y.  112,  64  N.  E.  802,  60:768 

195.  Questions  of  necessity  and  expediency 
of  viaducts  over  railroad  tracks,  and  of  the 
portion  of  the  expense  which  the  city  may 
properly  assume,  are  for  the  determination 
of  the  city  authorities,  rather  than  the 
courts.  Argentine  v.  Atchison,  T.  &  S.  F. 
R.  Co.  55  Kan.  730,  41  Pac.  946,  30:  255 
Tax. 

As  to  Taxes  Generally,  see  supra,  149-155. 

1P6.  The  court  may  compel  a  city  govern- 
ment to  correct  an  error  in  the  mode  of  levy- 
ins  a  tax,  although  it  cannot  appoint  an  as- 
sessor or  correct  the  error  itself.  Levi  v. 
Louisville,  97  Ky.  394,  30  S.  W.  973,  28:  480 

197.  An  assessment  of  personal  property 


COURTS.  I.  c.  3. 


8SS 


by  the  ad  valorem  system,  like  that  applied 
to  real  property,  may  be  ordered  by  the  court 
on  behalf  of  the  owners  of  real  estate,  where 
a  citj'  has  illegally  attempted  to  tax  per- 
sonal property  in  another  manner,  even  if 
the  illegal  mode  attempted  would  be  as  just 
as  the  other.  Id. 

Regulation  of  water  works. 
See  also  Waters,  591,  592,  595-597,  603. 

198.  The  courts  have  no  right  to  interfere 
with  the  discretion  of  a  city  in  the  exercise 
of  the  power  conferred  upon  it  to  provide  a 
system  of  water  works  and  control  and  reg- 
ulate the  same.  Asher  v.  Hutchinson  Water, 
L.  &  P.  Co.  66  Kan.  496,  71  Pac.  813,    61:  52 

199.  A  review  by  the  court  of  the  action 
of  the  common  council  in  fixing  water  rates 
is  not  limited  to  a  determination  of  the 
question  on  the  same  evidence  that  was  pro- 
duced before  the  council,  where  the  hearing 
before  the  council  was  conducted  without 
notice  to  the  water  company  or  the  rate 
payers,  and  without  any  right  on  their 
part  to  intervene  effectually.  San  Diego 
Water  Co.  v.  San  Diego,  118  Cal.  556,  50 
Pac.  633,  38:  460 

6.  Review  of  Ordinances. 

Rules  of  Court  in  Deciding  as  to,  see  infra, 
506-510. 

Injunction  against  Ordinance,  see  Injunc- 
tion, 317-332. 

For  Editorial  Notes,  see  infra,  VI.  §  4. 

200.  Courts  may  declare  void  ordinances 
and  by-lawg  which  are  not  reasonable.  Des 
Moines  Citv  R.  Co.  v.  Des  Moines,  90  Iowa, 
770,  58  N.  W.  906,  26:767 

201.  An  ordinance  which  is  unreasonable, 
unjust,  and  oppressive,  will  be  held  by  the 
courts  to  be  void.  Hawes  v.  Chicago,  158  111. 
653,  42  N.  E.  373,  30:  225 

202.  The  reasonableness  of  an  ordinance  is 
open  to  judicial  injuiry,  when  it  is  passed 
in  the  exercise  of  a  general  authority  to  leg- 
islate on  the  subject  without  prescribing 
the  mode  of  its  exercise.  Champer  v.  Green- 
castle,  138  Ind.  339,  35  N.  E.  14,  24:  768 

203.  The  reasonableness  or  unreasonable- 
ness of  a  municipal  ordinance  is  a  question 
for  the  decision  of  the  court  in  the  light  of 
all  existing  circumstances  or  contempora- 
neous condition?,  the  objects  sought  to  be 
obtained,  and  the  necessity  or  want  of  neces- 
sity for  its  adoption.  Hawes  v.  Chicago, 
158  111.  653,  42  N.  E.  373,  30:  225 

204.  If  an  ordinance  is  based  upon  a  gen- 
eral power,  and  its  provisions  are  more  de- 
tailed than  the  expression  of  power  con- 
ferred, the  court  may  look  into  its  reason- 
ableness. State,  Trenton  Horse  R.  Co.  Pros- 
ecutor, V.  Trenton  (in.  J,  Sup.)  53  N.  J.  L. 
132,  20  Atl.  1076,  11:410 

205.  The  courts  may  inquire  into  the  rea- 
sonableness or  unreasonableness  of  munici- 
pal ordinances,  where  they  have  not  been 
expressly  authorized  by  the  legislature,  or 
are  of  a  class  which  the  legislature  itself 
has  no  power  to  enforce.  Houston  &  T.  C. 
R.  Co.  V.  Dallas,  98  Tex.  396,  84  S.  W.  648. 

70:  850 

206.  The  courts  will  not  inquire  as  to  the 


reasonableness  of  an  ordinance  when  the 
power  exists  to  pass  it.  Skaggs  v.  Martins- 
ville, 140  Ind.  476,  39  N.  E.  241,  33:  781 

207.  An  ordinance  cannot  be  held  invalid 
because  it  is  unreasonable,  when  the  power 
to  pass  ordinances  on  the  subject  is  con- 
ferred by  a  constitutional  statute.  [Af- 
firmed by  divided  court.]  Darimgton  v. 
Ward,  48  S.  C.  570,  26  S.  E.  906,  38:  326 

208.  An  ordinance  cannot  be  successfully 
assailed  in  a  judicial  tribunal  for  unreason- 
ableness, when  it  has  been  adopted  by  ex- 
press authority  of  the  legislature  without 
conflict  with  any  constitutional  prohibition 
or  fundamental  principles.  Belling  v.  Evans- 
ville,  144  Ind.  644,  42  N.  E.  621,  35:  272 

209.  Courts  have  no  power  to  declare  an 
ordinance  void  because  it  is  unreasonable; 
unless  its  unreasonableness  is  so  clear  as  to 
indicate  a  mere  arbitrary  exercise  of  the 
power  vested  in  the  council.  State  v.  Barge, 
82  Minn.  256,  84  N.  W.  911,  1116,  53:  428 
As  to  highways. 

210.  ine  legislative  judgment  and  discre- 
tion of  a  city  council  in  passing  an  ordi- 
nance for  the  public  safety  and  convenience 
and  the  proper  regulation  of  the  ude  of  the 
streets  are  not  subject  to  review  or  super- 
vision by  the  courts.  Lake  Roland  Elev. 
R.  Co.  v.  Baltimore,  77  Md.  352,  26  Atl.  510, 

20:  126 

211.  The  court  cannot  set  aside  as  unrea- 
sonable an  ordinance  which  authorizes  the 
laying  of  double  tracks,  when  a  statute  ex- 
pressly authorizes  a  municipal  board  to  des- 
ignate the  number  of  street  railway  tracks 
that  shall  be  laid  in  any  street,  lane,  or  ave- 
nue <Jf  the  city.  State  ex  rel.  Kennelly  v. 
Jersey  City  (N.  J.  Sup.)  57  N.  J.  L.  293,  30 
Atl.  531,  26:  281 
As  to  speed  of  trains. 

212.  The  reasonableness  of  an  ordinance 
limiting  the  speed  of  trains  within  munici- 
pal limits,  passed  under  general  statutory 
authority,  which  merely  prescribes  the  min- 
imum rate,  without  prescribing  the  details 
of  the  regulation,  is  subject  to  review  by  the 
courts.  Chicago  &  A.  R.  Co.  v.  Carlinville, 
200  111.  314,  65  N.  E.  730,  60:  391 
Sale  of  liquor. 

213.  General  power  to  license  and  regulate 
places  for  the  sale  of  liquor  does  not  prevent 
judicial  inquiry  as  to  the  reasonableness  of 
an  ordinance  prohibiting  the  use  of  blinds, 
screens,  etc.,  in  such  places.  Champer  v. 
Greencastle,    138  Ind.   339,   35  N.  E.    14, 

24:  768 
Prevention  of  fires. 

214.  Where  a  city  is  given  power  to  make 
regulations  for  the  prevention  of  fire,  and 
the  propriety  or  necessity  of  the  methods 
to  be  pursued  to  accomplish  that  object  is 
left  to  the  discretion  of  the  council,  the 
courts  will  not  be  warranted  in  setting  aside 
as  improper  an  ordinance  adopting  means 
which  the  council  has  by  its  acts  declared 
proper.  Olympia  v.  Mann,  1  Wash.  389,  25 
Pac.  337,  12:  150 
Inquiry  into  motive. 

See  also  supra,  96.  97;  infra,  508. 

215.  An  ordinance  will  not  be  declared 
void  on  account  of  the  motives  which  in- 


856 


COURTS,  I.  d,  1. 


duced  its  passage, — at  least,  when  actual 
fraud  is  not  shown.  Wood  v.  Seattle.  23 
Wash.   1,  62  Pac.   135,  52:  369 

216.  The  motives  that  prompt  the  enact- 
ment of  an  ordinance  cannot  be  considered 
by  the  court  in  determining  whether  the  or- 
dinance is  reasonable  or  unreasonable  and 
oppressive.  Bennett  v.  Pulaski  (Tenn.  Ch.) 
52  S.  W.  913,  47:  278 

d.  Jurisdiction  over  Associations,  etc.;  Con- 
clusiveness of  Decisions  of  Their  Tri- 
bunals. 

1.  Associations.  Generally. 

Power  to  Review  Decision  of  Military  Board, 
see  Certiorari,  9-11. 

Control  over  Election  of  Corporate  Directors, 
see  Corporations,  641. 

Review  of  Election  by  Corporate  Directors, 
see  Corporations,   215. 

Jurisdiction  of  Action  by  Corporate  Stock- 
holder, see  Corporations,  V.  e,  2. 

Review  of  Decision. of  Medical  Commission- 
ers, see  Medical  College,  2. 

See  also.  Benevolent  Societies,  20. 

For  Editorial  Notes,  see  infra,  VI.  §  3. 

217.  The  right  of  resort  to  the  courts  by 
members  of  a  fraternal  organization  will  not 
be  deemed  to  be  taken  away  by  mere  in- 
ference; and  if  it  can  be  done  at  all  it  will 
only  be  where  the  restriction  is  stated  in 
the  clearest  and  most  express  terms.  Su- 
preme Lodge  0.  of  S.  F.  v.  Raymond,  57  Kan. 
647,  47  Pac.  533,  49:  373 

218.  The  rules  by  which  the  members  of 
an  association  agree  to  be  governed  consti- 
tute the  charter  of  their  rights,  and  the 
courts  will  decline  to  take  cognizance  of  any 
matter  arising  under  them  in  respect  of 
matters  of  policy  or  ine  internal  economy 
of  the  organization.  Lawson  v.  Hewell,  118 
Cal.  613,  50  Pac.  763,  49:  400 

219.  Courts  will  not  interfere  to  control 
the  enforcement  of  by-laws  of  voluntary  as- 
sociations for  the  discipline  of  members  who 
have  assented  to  them,  where  they  infringe 
no  public  policy  or  rule  of  law,  and  are  not 
imreasonablc.  Green  v.  Chicago  Bd.  of 
Trade,  174  111.  585,  51  N.  E.  509,  49:  .365 

220.  A  court  of  chancery  will  not  under- 
take to  force  a  member  upon  a  corporation 
which  is  not  engaged  in  commercial  business, 
but  merely  furnishes  to  its  members  facili- 
ties for  carrying  on  business,  against  the 
wild  of  those  whose  duty  it  is  to  pass  upon 
ap])lications  for  membership.  American 
Livestock  Com.  Co.  v.  Chicago  Livestock  Ex- 
change, 143  111.  210,  32  N.  E.  274,  18:  190 
Division  of  fund. 

221.  The  courts  will  not,  except  in  case  of 
gross  abuse,  interfere  with  the  division  of  a 
fund  contributed  by  the  public  to  aid  the 
families  of  members  of  the  fire  department 
killed  in  the  discharge  of  their  duties.  Hal- 
linan  v.  Hearst,  133  Cal.  645,  66  Pac.  17, 

.55:  216 
Rejection  of  claim. 

222.  The  right  of  members  of  a  fraternal 
organization  to  resort  to  courts  when  their 
claims    have    been    finally    rejected    by    its 


tribunals  is  not  taken  away  by  a  constitu- 
tional provision  that  no  claim  shall  be  paid 
until  all  the  laws  or  rules  of  the  order 
have  been  fully  complied  with  and  proof 
made  according  to  the  laws  of  the  order, 
and  also  that  the  supreme  lodge  shall  have 
exclusive  jurisdiction  of  all  appeals  from  the 
grand  or  subordinate  lodges  and  members, 
and  its  decisions  upon  all  questions  and  ap- 
peals shall  be  the  supreme  law  of  the  order. 
Supreme  Lodge  O.  of  S.  F.  v.  Raymond,  57 
Kan.  647,  47  Pac.  533,  49:  373 

223.  A  rule  in  the  relief  department  of  a 
railroad  company  that  the  decision  of  an  ad- 
visory committee  on  appeal  from  the  deter- 
mination of  the  superintendent  of  claims  of 
beneficiaries  submitted  to  him  shall  be  final 
and  conclusive  on  all  parties  without  excep- 
tion or  appeal  does  not  prevent  the  mainte- 
nance of  an  action  on  a  valid  claim  rejected 
by  such  committee.  Baltimore  &  0.  R.  Co. 
v.  Stankard,  56  Ohio  St.  224,  46  N.  E.  577, 

49:381 

224.  An  agreement  by  members  of  a  vol- 
untary benefit  association,  that  the  decision 
of  its  tribunals  rejecting  a  claim  to  bene- 
fits shall  be  conclusive,  is  not  against  public 
policy  as  an  attempt  to  oust  courts  of  jur- 
isdiction. Hembeau  v.  Great  Camp  of  the 
K.  of  M.  101  Mich.  161,  59  N.  W.  417, 

49:592 
Expulsion. 

225.  The  question  whether  or  not  the  evi- 
dence upon  which  an  officer  of  a  voluntary 
society,  who  had  jurisdiction  of  the  mat- 
ter, acted  in  declaring  irregular  a  vote  of 
the  association  which  suspended  a  member, 
was  sufficient  to  support  his  decision,  is 
not  open  to  review  by  a  court  of  law.  Con- 
nelly V.  Masonic  Mut.  Ben.  Asso.  58  Conn. 
552,'  20  Atl.  671,  9:  42vS 

226.  Decisions  of  a  voluntary  society  or 
association  in  admitting,  displacing,  sus- 
pending, or  expelling  members,  are  of  a 
quasi  judicial  character,  and  will  not  be  in- 
terfered with  by  the  courts,  except  to  as- 
certain whether  the  proceeding  was  pur- 
suant to  the  rules  and  by-laws  of  the  so- 
ciety, or  was  in  good  faith,  and  not  in  vio- 
lation of  the  laws  of  the  land.  Id. 

227.  The  remedies  afforded  by  the  consti- 
tution, laws,  and  regulations  of  the  order 
must  be  exhausted  before  a  worshipful  mas- 
ter and  presiding  officer  of  a  local  lodge  of 
ancient,  free,  and  accepted  masons,  can  in- 
voke the  aid  of  the  courts  against  the 
grand  master  of  the  grand  lodge  of  the  state 
to  prevent  suspension.  Mead  v.  Stirling,  62 
Conn.  586,  27  Atl.  591,  23:  227 

228.  A  social  club,  in  the  trial  of  a  charge 
against  one  of  its  members,  conviction  of 
which  will,  under  its  charter  and  by-laws, 
subject  him  to  expulsion,  acts  as  a  judicial 
tribunal,  and  its  judgment  therein  renders 
the  case  res  judicata,  and  will  preclude  its 
re-examination  on  its  merits  by  a  judicial 
court.  Com.  ex  rel.  Burt  v.  Union  League, 
135  Pa.  .301,  19  Atl.  1030,  8:  195 
Board  of  trade. 

22!).  Courts'  have  power  to  correct  abuses 
resulting  from  the  unwarranted  procedure 
of  a  committee  of  a  board  of  tride,  v/herei 


COURTS,  I.  d.  2. 


857 


property  rights  are  involved.    Ryan  v.  Cud- 
ahy,  157  111.  108,  41  N.  E.  760,         49:  353 

2.  Religious  Societies. 

Powers   of   Ecclesiastical    Tribunals   Gener- 
ally, see  Religious  Societies,  IX. 
For  Editorial  Notes,  see  infra,  VI.  §  3. 

230.  All  remedies  within  the  church  must 
be  exhausted  by  a  member  before  the  secu- 
lar courts  will  interfere,  if  they  have  a 
right  to  interfere  at  all,  with  the*  action  of 
an  ecclesiastical  tribunal  against  him.  Hat- 
field V.  De  Long,  156  Ind.  207,  59  N.  E.  483, 

51  r  751 

231.  The  decision  of  an  association  of 
churches  to  which  both  factions  of  a  church 
belonging  to  the  association  hav^  submit- 
ted their  claims,  even  if  it  is  merely  advis- 
ory, is  entitled  to  great  weight  in  the  courts 
on  the  questions  of  religious  doctrine,  dis- 
cipline, faith,  and  practice.  Smith  v.  Pedi- 
go,  145  Ind.  361,  33  N.  E.  777,  19:433 

232.  The  question  of  the  regularity  and 
legal  effect  of  the  organization  of  an  annual 
conference  of  a  religious  organization, 
after  forcibly  intercepting  the  entrance  of 
the  bishop  appointed  to  preside  over  it  be- 
cause of  his  alleged  suspension  from  ui."*  of- 
fice under  the  discipline  of  the  organization, 
raises  an  ecclesiastical  question  upon  which 
the  decision  of  the  highest  tribunal  of  the 
order  is  binding  on  the  civil  courts.  Krecker 
V.  Shirey,  163  Pa.  534,  30  Atl.  440,      29:  476 

232a.  The  jurisdiction  of  a  civil  court  to 
adjudge  any  ecclesiastical  matter  must  re- 
sult as  a  mere  incident  to  the  determina- 
tion of  some  property  right.  Nance  v.  Bus- 
by, 91  Tenn.  303,  18  S.  W.  874,  15:  801 
As  to  property  rights. 
See  also  supra,  232a. 

232b.  For  the  purpose  of  settling  the 
title  to  church  property,  courts  may  inquire 
into  and  determine  the  validity  of  an  at- 
tempt to  amend  the  constitution  and  con- 
fession of  faith  of  the  society,  so  as  to  as- 
certain whether  those  adhering  to  the  orig- 
inal or  amended  documents  constitute  the 
society.  Schlichter  v.  Keiter,  156  Pa.  119,  27 
Atl.  45,  22:  161 

232c.  Courts  are  not  deprived  of  jurisdic- 
tion to  enforce  rights  in  the  [tropnrty  of  a 
voluntary  religious  association,  which  have 
been  established  by  a  conclusive  ecclesiasti- 
cal decree,  where  there  is  no  other  remedy, 
by  a  statute  providing  that  no  order  of  any 
ecclesiastical  body,  or  any  custom  or  usage 
of  any  religious  order,  shall  hereafter  be 
recognized  or  enforced  in  this  state  so  far 
as  it  shall  relate  to  the  acquisition,  tenure, 
control,  or  disposition  of  any  real  estate  or 
interest  therein.  Fuchs  v.  Meiael,  102  Mich. 
357,  60  N.  W.  773,  32:  92 

As  to  consolidation. 

233.  The  consolidation  of  several  churches 
of  the  same  denomination  into  one  by  the 
properly  constituted  eccleciastical  author- 
ity is  a  matter  of  ecclesiastical  law  and 
practice,  and  the  determination  of  such  ec- 
clesiastical tribunal  will  not  be  reviewed  bj' 
the  courts.  Trinity  M.  E.  Church  v.  Harris, 
73  Conn.  21G,  47  Atl.   UG,  50.  636 


233a.  The  consolidation  of  several 
churches  of  the  Methodist  Episcopal  de- 
nomination, which  is  effected,  in  accordance 
with  the  uniform  and  universal  practice  of 
the  denomination,  by  the  presiding  bishop 
at  an  annual  conference,  who  appoints  a 
pastor  for  the  united  societies  under  a  new 
name,  and  appoints  no  pastor  for  either  of 
the  old  churches,  is  binding  on  the  courts. 

Id. 
As  to  pastors. 
See  also  supra,  233a. 

233b.  The  decision  of  an  eccleciastical 
tribunal  concerning  the  right,  duties,  and 
obligations  of  a  priest  or  minister  of  the 
church  who  has  submitted  the  controversy 
to  it  for  decision,  is  a  bar  to  a  subsequent 
action  by  him  in  a  civil  court.  Baxter  v. 
McDonnell,  155  N.  Y.  83,  49  N.  E.  667, 

40:  670 
233c.  The  decisions  of  church  tribunals  as 
to  the  terms  upon  which  the  pastoral  rela- 
tions shall  be  formed  and  the  salary  ac- 
companying it  shall  be  demanded,  as  well 
as  in  respect  to  doctrine  and  discipline,  will 
be  binding  on  the  civil  courts.  First  Presby. 
Church  v.  Myers,  5  Okla.  809,  50  Pac.  70,' 

38 :  687 
233d.  The  removal  by  church  officials,  un- 
der authority  of  the  church  discipline,  of  a 
pastor  who  has  no  contract  right  to  salary, 
and  the  appointment  of  his  successor,  will 
not  be  reviewed  by  the  civil  courts.  Travers 
V.  Abbey,  104  Tenn.  665,  58  S.  W,  247, 

51:260 
Change  of  constitution. 

23«3«.  The  adoption  by  the  general  confer- 
ence of  the  report  of  a  special  committee  on 
the  question  whether  a  proposed  new  church 
constitution  is  substantially  the  same  as  the 
old  one  is  a  legislative,  and  not  a  judicial, 
act,  within  the  rule  as  to  the  conclusiveness 
in  the  several  courts  of  decisions  by  eccle- 
siastical tribunals.  Philomath  College  v. 
Wyatt,  27  Or.  390,  31  Pac.  206,  37  Pac.  1022, 

26:  68 
234.  The  decision  of  the  legally  consti- 
tuted ecclesiastical  tribunal  having  jurisdic- 
tion of  the  matter,  that  a  proposed  revised 
confession  of  faith  and  amended  constitu- 
tion of  a  religious  society,  the  question  of 
the  adoption  of  which  had  been  submitted 
to  a  vote  of  the  society,  has  become  the 
fundamental  belief  and  constitution  of  the 
society,  is  finding  upon  the  civil  courts. 
Lamb  v.  Cain,  129  Ind.  486,  29  N.  E.  13, 

14:  518 
234a.  The  decision  of  a  general  conference 
which  is  the  highest  tribunal  of  a  church, 
that  a  new  constitution  and  confession  of 
faith  have  become  the  fundamental  belief 
and  constitution  of  the  society,  is  not  bind- 
ing upon  the  courts  where  it  is  clearly 
shown  that  the  fundamental  law  of  the 
church,  requiring  a  request  by  two  thirds  of 
the  whole  society  before  a  change  in  the 
constitution  can  be  made,  has  not  been  com- 
plied with,  but  that  one  general  conference 
had  appointed  a  commission  to  prepare  a 
new  constitution  and  submit  it  to  a  vote  of 
the  church,  and  a  succeeding  general  con- 
ference  declared    the   constitution   adopted, 


858 


COURTS,  I.  e. 


although  the  affirmative  vote  of  the  church, 
while  more  than  two  thirds  of  the  members 
voting,  was  much  less  than  two  thirds  of 
the  whole  society.  Bear  v.  Heasley,  98  Mich. 
279,  57  N.  W.  270,  24:  615 

23'ib.  The  inquiry  whether  or  not  a  church 
tribunal  that  undertakes  to  decide  as  to 
the  expulsion  of  a  member  has  been  organ- 
ized in  conformity  with  the  constitution  of 
the  church  is  not  ecclesiastical,  within  the 
exclusive  jurisdiction  of  the  ecclesiastical 
tribunals,  but  is  within  the  jurisdiction  of 
the  civil  courts,  although  the  decision  of 
Buch  ecclesiastical  tribunal,  if  it  were  prop- 
erly constituted,  would  be  conclusive  on  the 
courts.  Hatfield  v.  De  Long,  156  Ind.  207, 
59  N.  E.  483,  51 :  751 

Expulsion;  excommunication. 
See  also  supra,  234b. 

235.  Excommunication  by  vote  of  a  ma- 
jority of  the  members  voting  at  any  confer- 
ence of  a  purely  congregational  and  inde- 
pendent church,  although  it  is  made  without 
notice  to  the  accused  of  the  charges  against 
him  or  opportunity  to  vindicate  himself,  and 
under  an  erroneous  construction  of  the 
usage  and  practice  of  the  church,  is  an  act 
of  the  church  which  cannot  be  reviewed  or 
interfered  with  by  a  civil  court.  Nance  v. 
Busby,  91  Tenn.  303,  18  S.  W.  874,       15:  801 

235a.  An  exposition  by  the  supreme  ju- 
dicial tribunal  of  a  religious  association,  of 
a  provision  of  the  discipline  to  the  efi^ect 
that  under  it  a  second  trial  after  one  acquit- 
tal upon  substantially  the  same  charges  is 
illegal,  is  binding  upon  the  members  of  the 
association  and  must  be  respected  by  the 
civil  courts.  Krecker  v.  Shirey,  163  Pa.  534, 
30  Atl.  440,  29:  476 

e.  Legislative  Power  as  to. 

To  Abridge  Court's  Inherent  Power  as  to 
Contempt,  see  Contempt,  83-87. 

Partial  Invalidity  of  Statute  as  to  Courts, 
see  Statutes,  94-97. 

Special  Tycgislation  as  to  Courts,  see  Stat- 
utes, 384-399. 

See  also  infra,  272. 

23<j.  Any  change  which  transfers  the  pow- 
er that  belongs  to  a  judge  to  a  jury,  or  to 
any  other  person  or  body,  is  as  plain  a  vio- 
lation of  the  Constitution  as^one  which 
would  give  the  courts  executive  or  legis- 
lative power.  The  cognizance  of  equitable 
questions  belongs  to  the  judiciary  as  a  part 
of  the  judicial  power,  and,  under  our  Con- 
stitution, must  remain  vested  where  it  al- 
ways has  been  vested  heretofore.  Brown 
V.  Kalamazoo  Countv  Circuit  Judge,  75 
Mich.  274,  42  N.  W.  827,  5:  226 

237.  It  is  not  competent  for  the  legisla- 
ture to  deprive  the  supreme  court  of  its  re- 
visory jurisdiction  over  all  the  other  state 
tribunals,  and  no  legislation  which  practi- 
cally  destroys   it   is   valid.  Id. 

238.  A  statute  which  attempts  to  deprive 
the  governor  of  his  constitutional  power  to 
appoint  judges  of  an  inferior  court,  by 
changing  the  name  of  the  court  and  requir- 


ing the  judge  to  be  elected  without  chang- 
ing its  jurisdiction  or  functions,  is  void. 
Johnson  v.-  State,  59  N.  J.  L.  535,  37  Atl. 
949,  38:  373 

239.  An  attempt  by  the  legislature  to 
make  the  board  of  state  auditors  an  appel- 
late court  to  determine  the  guilt  or  inno- 
cence of  a  pardoned  convict,  and  allow  him 
damages  for  wrongful  conviction  and  im- 
prisonment if  they  find  him  innocent,  is  in 
violation  of  the  constitutional  provisions  es- 
tablishing courts  and  conferring  upon  them 
exclusive  jurisdiction  to  try  civil  and  crim- 
inal cases.  Allen  v.  Board  of  State  Audi- 
tors, 122  Mich.  324,  81  N.  W.  113,  47:  117 
Changing  or  abolishing  judicial  circuits. 
Power  to  Provide  for  More  than  One  Judge 

in  Circuit,  see  Judges,  13. 
Two-thirds  Vote  on   Passage  of  Act  Abol- 
ishing, see  Statutes,  19. 

240.  The  power  to  detach  counties  from 
one  judicial  circuit  and  add  them  to  another 
is  within  the  constitutional  grant  of  legis- 
lative authority  to  ordain  and  establish  from 
time  to  time  circuit,  chancery,  and  other 
inferior  courts.  McCulley  v.  State,  102 
Tenn.  509,  53  S.  W.  134,  46:  567 

241.  A  statute  abolishing  a  judicial  dis- 
trict before  the  expiration  of  the  term  of 
oPice  of  the  judge  of  that  district,  and 
transferring  all  the  counties  comprising  it 
into  another  district,  is  within  the  constitu- 
tional power  of  the  legislature.  Aikman  v. 
Edwards,  55  Kan.  751,  42  Pac.  366,  30:  149 
Creating,    abolishing,    or   changing    number 

of   courts. 
Partial    Invalidity    of    Statute    Abolishing 
Courts,  see  Statutes,  95. 

242.  Courts  in  addition  to  circuit  courts, 
whether  inferior  to  or  concurrent  with  them 
in  jurisdiction,  may  be  established  in  Indi- 
ana under  the  constitutional  amendment 
of  March  14,  1881.  Woods  v.  McCay,  144 
Ind.  316,  43  N.  E.  269,  33:97 

243.  The  power  to  abolish  existing  courts, 
and  to  increase  and  diminish  the  number, 
is  included  in  the  legislative  power  to  or- 
dain and  establish  them.  McCulley  v.  State, 
102  Tenn.  509,  53  S.  W.  134,  46:  567 

244.  Since  separate  orphans'  courts  in 
counties  of  a  certain  class  were  created  by 
and  exist  under  the  authority  of  the  Penn- 
sylvania Constitution,  although  put  in  ac- 
tual operation  by  the  legislature,  it  is  com- 
petent for  the  legislature  to  regulate  and 
maintain  them,  but  not  to  abolish  them 
by  aopeal.  Pteid  v.  Smoulter,  128  Pa.  324, 
18  Atl.  445,  5:  517 
Giving  right  to  rehearing  in. 

245.  The  legislature  cannot  give  the  right 
to  a  rehearing  in  the  supreme  court  con- 
trary to  its  rules,  where  the  Constitution 
creates  the  court,  and  provides  that  the  leg- 
islative, executive,  and  supreme  judicial 
powers  of  the  government  shall  be  separate 
and  distinct,  and  also  that  the  eeneral  as- 
sembly may  regulate  methods  of  proceeding 
in  "courts  below  the  supreme  court."  Hern- 
don  V.  Imperial  F.  Ins.  Co.  Ill  N.  C.  384.  16 
S.  E.  46.5,  18:  547 
Authorizing  appointment  of  referee. 

246.  A  justice  of  the  supreme  court  may 


COURTS.  I.  f.  II.  a.  1. 


S60 


be  authorized  by  the  legislature  to  appoint 
a  referee  to  take  testimony  to  aid  the  attor- 
ney general  in  instituting  proceedings  for 
the  suppression  of  a  monopoly.  Re  Davies, 
168  N.  Y.  89,  61  N.  E.  118,  56:  855 

Imposing  duties  on  courts. 
See  also  infra,  286. 

247.  The  preparation  of  the  syllabi  of 
judicial  decisions  is  an  essential  part  of  the 
reporter's  work,  which  the  legislature  can- 
not compel  the  judges  to  perforin, — especial- 
ly under  a  state  Constitution  which  pro- 
vides that  no  judge  shall  be  allowed  to  re- 
port decisions.  Ex  parte  Griffiths,  118  Ind. 
83,  20  N.  E.  513,  3:  398 

248.  The  legislature  cannot  impose  upon  a 
court  the  duty  of  receiving  and  acting  on 
petitions  for  the  submission  to  \he  voters 
of  the  question  whether  or  not  intoxicating 
liquors  shall  be  sold,  under  a  Constitution 
separating  the  departments  of  government. 
Supervisors  of  Elections  v.  Todd,  97  Md. 
247,  54  Atl.  963,  62:  809 
As  to  commissioners. 

249.  Under  Ind.  Const,  art.  7,  §  1,  ordain- 
ing that  "the  judicial  power  of  the  state 
shall  be  vested  in  one  supreme  court,  in  cir- 
cuit courts,  and  in  such  other  courts  as  the 
general  assembly  may  establish,"  the  legis- 
lature cannot  create  a  supreme  court  com- 
mission for  the  transaction  of  judicial  busi- 
ness. State  ex  rel.  Hovey  v.  Noble,  118  Ind. 
350,  21  N.  E.  244,  4:  101 

250.  An  act  providing  for  the  appoint- 
ment of  commissioners  of  the  supreme  court 
"to  assist  ...  in  the  performance  of 
its  duties,  .  .  .  under  such  rules  and 
regulations  as  said  court  may  adopt,"  is  not 
in  violation  of  the  California  Constitution. 
People  ex  rel.  Morgan  v.  Hayne,  83  Cal.  Ill, 
23   Pac.    1,  7:  348 

251.  The  possibility  that  the  court  may 
be  unduly  influenced  by  the  reports  and 
opinions  of  commissioners  appointed  to  as- 
sist it  does  not  aflfect  the  question  of  the 
constitutionality  of  the  act  providing  for 
their  appointment,  when  it  is  shown  that' 
they  are  not  usurping  judicial  power.     Id. 

f.  Power  of  Municipality  Over. 

252.  The  local  legislature  of  a  municipal- 
ity cannot  confer  power  to  hear  and  decide 
cases  upon  judges  of  superior  courts,  who 
are  state  officers.  Fawcett  v.  Pritchard,  14 
Wash.   604.   45   Pac.   23,  33:  674 

253.  Constitutional  permission  to  munici- 
pal corporations  to  frame  their  own  char- 
ters does  not  include  the  right  to  provide 
a  tribunal  and  clothe  it  with  power  to  hear 
and  decide  contests  of  election  to  municipal 
offices.  Id. 

g.  Loss  of   Jurisdiction. 

Over  Administration   of  Decedent's   Estate, 
see  Executors  and  Administrators,  26. 

254.  After  a  court,  by  reason  of  the  resi- 
dence of  one  of  several  codefendants  living: 
in  diflferent  counties,  has  obtained  juri'sdic- 
tion  of  a  suit  against  the  mayor  and  alder- 
men of  a  city  and  dispensary  commission- 


ers to  enjoin  the  maintenance  of  a  dispens- 
ary for  the  sale  of  intoxicating  liquors, 
such  jurisdiction  is  not  lost  by  the  death, 
removal,  or  resignation  Irom  office  of  the 
resident  defendant.  Lofton  v.  Collins,  117 
Ga.  434,  43  S.  E.  708,  61 :  150 

255.  A  court  loses  jurisdiction  of  an  ac- 
cused person  by  wrongfully  interpreting  his 
constitutional  rights  or  immunities  against 
him,  or  by  refusing  him  a  constitutional 
right,  so  that  its  judgment  against  him  is 
void.  Ex  parte  Miskimins,  8  Wyo.  392,  58 
Pac.    411,  49:  831 


II.  State  and  Territorial  Courts. 
a.  Jurisdiction. 
1.  In  General. 

Jurisdiction  in  Particular  Kinds  of  Actions 
and  Proceedings,  see  Accounting;  Ad- 
miralty; Attachment;  Certiorari; 
Cloud  on  Title;  Corporations;  Credi- 
tors' Bill;  Divorce  and  Separation,  IT.; 
Equity,  I.;  Executors  and  Administra- 
tors; Fraud  and  Deceit,  VIII. ;  Fraudu- 
lent Conveyances,  VIIT. ;  Garnishment; 
Habeas  Corpus;  Incompetent  Persons; 
Infants;  Injunction;  Insurance,  VI.  h; 
Mandamus;  Marriage,  IV.;  Mortgage, 
v.;  Nuisances,  II.;  Partnership;  Pro- 
hibition, I.;  Receivers,  I,  rV.;  Replevin, 
L:  Specific  Performance;  Trespass; 
Trover;    Wills,  IV. 

See  also  supra,  254. 

For  Editorial  Notes,  see  infra,  VI.  §  12. 

256.  Neither  the  original  nor  the  amended 
charter  of  the  city  of  Anderson,  South  Caro- 
lina, gives  the  right  to  a  trial  by  the  full 
council  in  the  mayor's  court  in  the  first  in- 
stance, but  only  on  appeal.  Anderson  v. 
O'Donnell,  29  S.  C.  355,  7  S.  E.  523,     1:  632 

257.  A  suit  for  relief  against  an  ordi- 
nance fixing  unreasonable  water  rates  is  an 
equitable  one,  within  the  jurisdiction  of 
the  superior  courts  of  California.  Spring 
Valley  Water  Works  v.  San  Francisco  City 
&  County,  82  Cal.  286,  22  Pac.  910,  1046, 

6:  756 
Election  contests. 

Jurisdiction  of  County  Judge  in  Term  Time, 
see   Elections,   326. 

258.  Officers  of  school  districts  are  in- 
cluded in  the  words  "all  other  officers,"  in 
111.  act  April  3,  1872  (111.  Rev.  Stat.  chap. 
46),  giving  the  county  court  jurisdiction  of 
contests  of  election  of  county,  township,  and 
precinct  officers,  and  all  other  officers  for 
the  contest  of  whose  election  no  provision 
is  made.  Misch  v.  Russell,  136  111.  22,  26 
N.  E.  528,  12:  125 
Enforcement  of  alimony. 

259.  A  proceeding:  to  enforce  a  decree  for 
alimony  by  attachment  for  contempt  is 
properly  brougfht  in  the  court  of  common 
pleas,  where  the  decree  was  rendered  by 
the  circuit  court,  and  the  catise  remanded  by 
that  court  to  the  court  of  common  pleas  for 
execution.  State  v.  Cook,  66  Ohio  St.  566, 
64  N.  E.  567,  58:  625 


860 


COURTS,   II.  a,  2. 


Naturalization. 

260.  A  court  in  which  the  judge  thereof  is 
charged  with  the  duty  of  keeping  its  rec- 
ords, which  must  be  authenticated  by  him, 
though  having  a  recorder  charged  with  the 
duty  of  keeping  suoh  records  when  request- 
ed by  the  judge,  is  not  a  court  having  a 
clerk,  within  the  Federal  statute  regulating 
naturalization,  and  has  no  power  to  receive 
a  declaration  of  intention  to  become  a  citi- 
zen.    Re  Dean,  83  Me.  489,  22  Atl.  585, 

13.229 

261.  A  court,  to  have  jurisdiction  of  appli- 
cations for  naturalization,  or  to  receive 
declarations  of  intention  under  the  Federal 
statute,  must,  in  addition  to  possessing  a 
seal,  have  a  clerk  distinct  from  the  judge, 
charged  with  the  duty  of  keeping  a  true 
record  of  its  doings,  and  afterwards  of 
authenticating   them.  Id. 

262.  While  a  court,  to  have  cognizance  of 
applications  for  naturalization,  or  to  receive 
declarations  of  intention  under  the  Federal 
statute,  must  possess  common-law  jurisdic- 
tion, it  is  not  necessary  that  it  have  all  the 
common-law  jurisdiction  that  pertains  to 
all  classes  of  actions,  but  merely  that  it 
exercises  its  powers  according  to  the  course 
of  the  common  law.  Id. 
Enforcement  of  stipulation. 

263.  A  stipulation  for  value  in  a  posses- 
sory action,  unlike  stipulations  for  value 
in  other  cases,  can  be  enforced  in  any  court 
having  jurisdiction  of  an  action  of  debt  for 
the  amount  due  on  the  stipulation.  Braith- 
waite  V.  Jordan,  5  N.  D.  196.  65  N.  W.  701, 

31 :  238 
Nuisances. 

264.  The  jurisdiction  of  the  municipal 
court  of  the  city  of  Wilmington,  Delaware, 
in  cases  of  public  nuisance,  extends  to  a 
case  of  coasting  on  the  public  streets,  which 
is  intrinsically  a  common  nuisance,  al- 
though not  expressly  declared  to  be  so  by 
anv  ordinance.  Wilmington  v.  Vandegrift, 
1   Marv.    (Del.)    5,  29   Atl.   1047,         25:  538 

265.  Jurisdiction  to  abate  nuisances  ex- 
isting in  the  cities  having  a  population  of 
20,000  or  more,  in  a  summary  manner,  under 
the  laws  of  the  state  of  Georgia,  resides 
alone  in  the  police  court  of  the  city  where 
it  ia  claimed  such  nuisance  exists,  except 
as  to  things  or  acts  which  are  by  the  com- 
mon or  statute  law  declared  to  be  nuisances 
per  se  or  which  are  in  their  very  nature 
palpablv  and  indisputablv  such.  Western 
&  A.  R.  Co.  V.  Atlanta,  113  Ga.  537.  38  S. 
E.  996,  54:  294 

2.  Original  Jurisdiction  of  Appellate  Court; 
Superintending  Control. 

To  Review  Determination  of  Board  of  State 
Canvassers,    see   Certiorari,   4. 

Over  Writ  of  Habeas  Corpus,  see  Habeas 
Corpus,  6. 

See  also  supra,  237:  Parties,  93;  Prohibition, 
2.  3. 

For  Editorial  Notes,  see  infra,  VT.  §§  1,9. 

206.  The  general  superintending  control 
conferred  by  Mo.  Const,  art.  6,  §  3.  upon 
the  supreme  court  over  inferior  courts,  in- 


cludes no  power  to  control  the  judgment 
or  discretion  of  a  lower  court  for  any 
particular  purpose  or  in  any  particular 
manner.  State  ex  rel.  Monett  Mill.  Co.  v. 
Xeville,  157  Mo.  386,  57  S.  W.  1012,     51 :  95 

267.  The  superintending  control  of  the 
Missouri  supreme  court  over  the  courts  of 
appeals,  by  mandamus,  prohibition,  and 
certiorari,  is  not  limited  to  cases  which 
may  be  certified  to  that  court  under  the 
provisions  of  the  constitutional  Amendment 
of  1884,  §  G.  State  ex  rel.  Bayha  v.  Kan- 
sas City  Ct.  App.  97  Mo.  331,  10  S.  W.  855, 

3:  476 

268.  Prohibition  to  stay  further  proceed- 
ings under  a  void  order  for  rehearing  by  a 
court  of  mediation  and  arbitration  may  be 
granted  by  the  supreme  court  of  Michigan 
under  its  power  of  superintending  control. 
Renaud  v.  State  Court  of  Mediation  and 
Arbitration,  124  Mich.  648,  83  N.  W.  620, 

51 :  458 

269.  The  supreme  court  has  jurisdiction 
to  intervene  by  a  writ  of  prohibition  to 
stay  an  inferior  court  from  proceeding  out 
of  its  jurisdiction,  under  a  constitutional 
provision  empowering  it  to  issue  such  writs 
as  may  be  necessary  to  give  it  a  general 
control  of  inferior  jurisdictions.  Hargis  v. 
Parker,  27  Ky.  L.  Rep.  441,  85  S.  Vv.  704, 

69:270 

270.  The  supreme  court  may  exercise  its 
constitutional  power  to  prevent  an  inferior 
court  from  exceeding  its  jurisdiction,  before 
the  question  of  jurisdiction  has  been  pre- 
sented to  such  court,  where  the  situation 
disclosed  is  such  that  to  take  the  ordinary 
course  would  be  of  itself  to  subject  the  com- 
plaining party  to  irremediable  loss.         Id. 

271.  A  constitutional  grant  of  superin- 
tending control  over  inferior  courts  vests  in 
the  ,  supreme  court  an  independent  and 
separate  jurisdiction,  enabling  it  to  restrain 
the  excesses  and  quicken  the  neglects  of 
inferior  courts  in  the  absence  of  other 
adequate  remedy,  and  authorizes  the  use  of 
all  the  ancient  writs  necessary  to  the  exer- 
cise of  that  high  power,  including  man- 
damus, prohibition,  certiorari,  and  pro- 
cedendo. State  ex  rel.  Fourth  Nat.  Bank  v. 
Johnson,  103  Wis.  591,  79  N.  W.  1081,  51:  33 

272.  The  right  to  hear  and  determine  the 
cause,  involved  in  the  constitutional  grant 
to  the  supreme  court  of  superintending 
control  over  inferior  courts,  cannot  be  taken 
away  by  the  legislature  by  directing  that 
issues  of  fact  arising  during  the  attempted 
exercise  of  such  control  shall  be  tried  in 
certain  designated  inferior  courts.  Id. 

273.  Mandamus  will  issue,  imder  the 
power  of  superintending  control  conferred 
upon  the  supreme  court  by  Mich.  Comp. 
Laws,  §  191,  to  vacate  a  void  order  by  the 
state  court  of  mediation  and  arbitration 
granting  a  rehearing  in  a  cause  decided  by 
it.  Ronaud  v.  State  Court  of  Mediation  and 
Arbitration,   124   Mich.   648,   83  N.  W.   620, 

51:  458 

274.  A  supreme  court  whose  original 
jurisdiction  in  mandamus  proceedinsrs  is 
limited  to  cases  involving  public  interests 
or  private  ones  in  which  there  is  no  other 


OOURTS,  II.  a.  2. 


861 


adequate  remedy  will  not  take  jurisdiction 
of  a  proceeding  by  a  private  relator  to  com- 
pel a  municipal  corporation  to  remove  a 
bridge  across  a  street,  connecting  the  upper 
floors  of  buildings  abutting  thereon.  Peo- 
ple ex  rel.  Kocourek  v.  Chicago,  193  111.  507, 
62  N.  E.  179,  58:  833 

275.  Under  constitutional  grants  to  the 
supreme  court  of  original  jurisdiction  in 
cases  relating  to  the  revenue,  in  mandamus 
and  habeas  corpus,  and  of  appellate  juris- 
diction in  all  other  oases,  and  to  the  circuit 
courts  of  original  jurisdiction  of  all  causes 
in  law  and  equity,  original  jurisdiction  in 
mandamus  vests  in  the  supreme  court  only 
in  cases  which  directly  involve  the  interests 
of  the  state  at  large,  or,  in  cases  of  looal 
public  interests  or  private  rights,  when  it 
is  necessary  to  prevent  a  failure  of  justice 
because  there  is  no  other  adequate  remedy, 
■ — about  which  the  court  may  exercise  a 
sound   legal   discretion.  Id. 

276.  Mandamus  to  compel  the  dissolution, 
as  on  bond  of  an  injunction  issued  at  the 
suit  of  taxpayers,  to  restrain  the  sale  of  a 
street  railway  franchise  by  a  city,  will  be 
granted  by  the  Louisiana  supreme  court  in 
the  exercise  of  the  general  supervisory 
jurisdiction  over  inferior  courts  given  it  by 
the  Louisiana  Constitution,  where  the  ef- 
fect of  the  injunction  is  to  arrest  the  action 
of  the  city  officers  in  a  matter  of  public 
concern  within  the  scope  of  the  authority 
conferred  on  them,  which  is  still  subject  to 
legislative  consideration,  and  has  not  yet 
reached  such  definite  shape  as  to  threaten 
injury  to  the  plaintiffs  in  injunction  or  the 
public,  while  the  injury  to  the  city  may  be 
irreparable,  and  the  remedy  by  appeal  will 
afford  no  relief.  State  ex  rel.  New  Orleans 
V.  Judge  of  Civil  Dist.  Ct.  52  La.  Ann.  1275. 
27  So.  607,  51 :  71 

277.  The  original  jurisdiction  of  the  su- 
preme court  of  South  Dakota,  under  S.  D. 
Const,  art.  5,  §§  2,  3,  includes  the  power  to 
issue,  hear,  and  determine  a  writ  of  certio- 
rari under  such  regulation  as  may  be  pre- 
scribed by  law,  where  judicial  questions  are 
involved  affecting  the  sovereignty  of  the 
state,  its  franchises  or  prerogatives,  or  the 
liberties  of  the  people.  State  ex  rel.  Bol- 
lard V.  Hughes  Countv,  1  S.  D.  292.  46  N. 
W.  1127,  10:  588 

278.  Under  its  general  superintending 
control  over  inferior  courts  conferred  by 
Colo.  Const,  art.  6,  §  2,  the  supreme  court 
has  no  power  to  review  on  certiorari  a 
judement  of  the  court  of  appeals  in  a 
habeas  corpus  proceeding  to  determine  the 
right  to  the  custody  of  a  child,  as  between 
the  father  and  relatives  of  the  deceased 
mother,  upon  the  theory  that  the  court  ex- 
ceeded its  jurisdiction  by  applying  a  rule  of 
law  at  variance  with  the  settled  doctrine 
upon  the  subject,  where  it  had  jurisdiction 
to  determine  the  question,  and  its  judgment 
was  not  in  conflict  with  any  prior  decision 
of  the  supreme  court.  People  ex  rel.  Green 
V.  Court  of  Appeals  of  Colo.  27  Colo.  405.  61 
Pac.  .592,  51 :  105 

279.  The  original  prerogative  jurisdiction 
of  the  supreme  court  of  Wisconsin  extends 


to  the  issue  of  an  injunction  to  prevent  an 
officer  of  the  state  from  doing  an  unauthor- 
ized act  in  relation  to  a  matter  of  public 
interest.  State  ex  rel.  Adams  County  v. 
Cunningham,  81  Wis.  440,  51  N.  W.  724, 

15:561 

280.  A  statute  authorizing  a  county  to 
issue  bonds  to  procure  seed  grain  for  needy 
farmers  is  a  matter  of  local  concern,  and 
the  supreme  court  of  Xorth  Dakota  has  not 
original  jurisdiction  to  issue  an  injunction 
in  such  matter.  State  ex  rel.  Goodwin  v. 
Xelson  County,  1  N.  D.  88,  45  N.  W.  33, 

8:  283 

281.  To  warrant  the  supreme  court  of 
Colorado  in  taking  jurisdiction  in  an  original 
proceeding  by  injunction,  the  case  made  by 
the  complaint  must  not  only  show  equitable 
ground  for  relief,  but  must  disclose  a  ques- 
tion involving  the  rights  or  franchises  of  the 
state  in  its  sovereign  capacity, — that  is, 
public  rights  or  interests,  as  contradis- 
tinguished from  matters  of  private  or  in- 
dividual concern.  People  ex  rel.  Bentley  v. 
McClees,  20  Colo.  403,  38  Pac.  468,      26:  646 

282.  The  writ  of  injunction  which  the 
Constitution  authorizes  the  supreme  court 
of  Colorado  to  issue  in  the  exercise  of  its 
original  jurisdiction  is  a  jurisdictional  writ, 
as  contradistinguished  from  the  ordinary 
writ  of  injunction  in  aid  of  jurisdiction 
otherwise   acquired.  Id. 

283.  A  writ  of  injunction  to  restrain  the 
secretary  of  state  irom  delivering  certifi- 
cates of  election  to  certain  persons  elected 
as  district  judges,  asked  on  the  ground  that 
the  terms  of  the  incumbents  of  such  judicial 
offices  were  not  about  to  expire,  the  real 
question  in  controversy  being  the  question 
of  title  to  public  offices  between  the  individ- 
ual claimants,  will  not  be  granted  by  the 
supreme  court  of  Colorado  as  the  contro- 
versy does  not  involve  the  rights  or  fran- 
chises of  the  people,  or  the  rights  of  the 
state   in   its    sovereign   capacity.  Id. 

284.  The  original  jurisdiction  of  the  su- 
preme court  of  North  Dakota  to  issue  a 
writ  of  injunction  under  the  authority  given 
by  the  state  Constitution,  §  S7,  cannot  be 
invoked  by  a  private  person  without  any 
s'howing  that  the  attorney  general  is  unable 
or  unwillinsr  to  act,  but  the  information 
should  be  filed  by  the  attorney  general,  or 
under  his  authority,  and  by  leave  of  the 
court  first  obtained,  and  in  the  name  of  the 
state.  Anderson  v.  Gordon,  9  N.  D.  480,  83 
N.  W.  993.  52:  134 

285.  The  preservation  of  a  constitutional 
legislature,  as  well  as  of  the  right  of  the 
people  of  the  state  to  equal  representation 
in  the  legislature,  is  a  matter  of  public  in- 
terest which  is  within  the  original  pre- 
roffative  jurisdiction  of  the  supreme  court 
of  Wisconsin  State  ex  rel.  Adams  County 
V.  Cunningham,  81  Wis.  440,  51  X.  W.  7-'4. 

15:  5G1 

286.  The  supreme  court  of  Indiana  will 
give  judgment  upon  the  validity  of  a  stat- 
ute requirintr  the  judges  to  make  st/Uabl  of 
opinions,  when  the  question  is  presented 
upon  a  petition  of  the  reporter  of  the 
court,  since  the  question   directly  concerns 


86S 


COURTS.  II.  a,  a— 5. 


the  rights,  powers,  and  functions  of  the 
court,  and  no  other  tribunal  can  determine 
it.  Ex  parte  Griffiths,  118  Ind.  83,  20  N. 
E.  513,  3:  398 

3.  As  Dependent  on  Amount. 

Jurisdiction  of  Justice,  see  Justice  of  the 

Peace,  16. 
For  Editorial  Notes,  see  infra,  VI.  §  7. 

287.  The  superior  court  has  no  original 
juirisd'iction  of  a  legal  cause  of  action, 
where  the  amount  claimed  is  under  $200. 
Howard  v.  Mutual  Reserve  Fund  L.  Asso. 
125  N.  C.  49,  34  S.  E.  199,  45:  853 

288.  A  statute  denying  plaintiff  costs  in  a 
district  court,  if  his  recovery  is  below  $50, 
does  not  limit  the  jurisdiction  of  the  court 
to  cases  in  which  that  sum  is  involved. 
St.  Paul  F.  &  M.  Ins.  Co.  v.  Coleman,  6 
Dak.  458,  43   N.  W.  693,  6:  87 

289.  Mere  failure  to  prove  damages  suffi- 
cient in  amount  to  give  the  court  jurisdic- 
tion will  not  necessarily  oust  the  jurisdic- 
tion, where,  as  laid  in  the  declaration,  they 
are  sufficiently  large.  To  have  that  effect, 
plaintiff's  good  faith  in  laying  his  damages 
at  so  large  an  amount  must  be  negatived. 
Drown  v.  Forrest,  63  Vt.  557,  22  Atl.  612, 

14:  80 
Amount  in  controversy. 
For  Editorial  Notes,  see  infra,  VI.  §  7. 

290.  The  total  fund  sought  is  the  amount 
in  controversy,  for  the  purpose  of  determin- 
ing jurisdiction,  in  a  suit  by  one  taxpayer, 
on  behalf  of  all  similarly  situated,  to  re- 
cover back  taxes  illegally  exacted.  Com. 
use  of  Wiggins  v.  Scott,  112  Ky.  252,  65 
S.  W.  596,  55:  597 

291.  In  determining  whether  or  not  a 
suit  for  injunction  against  a  boycott  in- 
volves a  sufficient  amount  in  money  to  be 
within  the  jurisdiction  of  the  court,  the 
test  is  the  value  in  money  to  complainant 
of  the  relief  sought,  or  the  amount  of  loss 
in  case  relief  is  denied.  Marx  &  H.  Jeans 
Clothing  Co.  v.  Watson,  168  Mo.  133,  67  S. 
W.  391.  ^  56:  951 

292.  The  matter  in  dispute  in  an  injunc- 
tion suit  to'  restrain  the  seizure  of  a  home- 
stead on  execution  is  the  homestead,  and 
not  the  amount  of  the  judgment  sought  to 
be  executed;  and  the  injunction  suit  must 
be  filed  in  another  court  than  that  of  the 
seizure,  if  the  latter  court  has  not  jurisdic- 
tion ratione  materia;.  Speyrer  v.  Miller, 
108  .La.  204,  32  So.  524,  61 :  781 

293.  Interest  on  damages  for  conversion, 
given  as  damages  for  delay  in  payment,  and 
not  by  express  provision  of  statute,  is  not 
such  interest  as  must  be  excluded  under 
Tex.  Const,  art.  5,  §  16,  from  the  amount  of 
$1,000  fixed  as  the  maximum  sum  for  con- 
current jurisdiction  of  county  and  district 
courts.  Baker  v.  Smelser,  88  Tex.  26,  29 
S.  W.  377.  33:  163 
Joinder  of  causes  to  ?ive  juripd'ction. 

294.  Clnims  in  difforent  counts  acrainst  a 
town  for  iniuries  to  sheep,  under  Conn.  Gen. 
Stat.  §  3752,  not  being  based  on  contract, 
cannot  be  united  to  mnke  up  the  amount 
necessary  to  give  jurisdiction  to  the  Con- 


necticut court  of  common  pleas.     Davis  v. 
Seymour,  59  Conn.  531,  21  Atl.  1004,  13:  210 

295.  Causes  of  action  for  fines  for  failure 
to  keep  a  ticket  office  and  waiting  room 
open  at  a  depot  cannot  be  joined  to  give  the 
circuit  court  jurisdiction  under  Ky.  Stat. 
§  1093.  giving  justices  exclusive  jurisdiction 
in  penal  actions  where  the  fine  recover- 
able does  not  exceed  $20.  Louisville  &  N. 
R.  Co.  V.  Com,  102  Ky.  300,  43  S.  W.  458, 

53:  149 
In  equity. 

296.  Equity  will  not  extend  its  aid  for 
the  recovery  of  a  legacy  the  amount  of 
which  is  only  $20.  Gale  v.  Nickerson,  151 
Mass.  428,  24  N.  E.  400,  9:  200 

4.  Matters  as  to  Title. 

297.  The  circuit  court  in  Indiana  haa 
jurisdiction  of  a  proceeding  to  establish  a 
way  of  necessity  over  the  land  of  another, 
since  the  act  of  March  9,  1889,  which  at- 
tempted to  confer  jurisdiction  of  such  pro- 
ceedings upon  the  board  of  county  commis- 
sioners, is  unconstitutional.  Logan  v.  Stog. 
dale,  123  Ind.  372,  24  N.  E.  135,  8:  58 

298.  A  suit  to  restrain  a  sale  under  a 
trust  deed  in  order  to  prevent  a  cloud  upon 
title  is  one  "involving  title  to  real  estate," 
within  the  jurisdiction  of  the  Missouri  su- 
preme court.  Gardner  v.  Terry,  99  Mo.  523, 
12   S.   W.  888,  7:67 

299.  A  district  court  obtains  the  same 
jurisdiction  over  a  case  in  which  title  to 
real  estate  is  involved,  certified  to  it  by  a 
justice  of  the  peace,  under  Mont.  Comp. 
Stat.  §  779,  as  if  it  had  been  originally 
commenced  therein,  and  may  render  judg- 
ment for  damages  in  excess  of  the  juris- 
dictional amount  of  the  justice.  Gassert  v. 
Bogk,  7  Mont.  585,  19  Pac.  281,  1 :  240 

300.  A  county  court  acting  as  a  probate 
court  has  no  jurisdiction  to  try  a  question 
of  title  to  property  as  between  the  personal 
representative  of  a  decedent  and  a  person 
claiming  in  hostility  to  the  estate.  Ame- 
sraard  v.  Arnegaard,  7  N.  D.  475,  75  N.  W. 
797,  41:258 

5.  Trusts;   Probate;   Insolvency. 

Power  of  Legislature  as  to  Orphans'  Court, 

see  supra,  244. 
Domicil    for   Purposes    of   Jurisdiction,    see 

Domicil,  3,  5,  6. 
Jurisdiction  of  Suits  by  Insane  Persons,  see 

Incompetent  Persons,  43. 
Repeal  of  Statute  as  to  Orphans'  Court,  see 

Statutes,  587. 
For  Editorial  Notes,  see  infra,  VI.  §  5. 

301.  The  attempt  to  confer  general  com- 
mon-law and  chancery  jurisdiction  on  pro- 
bate courts  by  the  territorial  act  of  Utah, 
March  6,  1852,  was  absolutely  void  because 
it  was  not  authorized  by  the  organic  act. 
Re  Christensen's  Estate,  17  Utah,  412,  53 
Pac.  1003,  41:  504 
Trusts. 

.302.  The  superior  court  in  Connecticut  has 
power,  as  a  court  of  equity,  to  supply  trus- 
tees, when  necessary  to  preserve  a  trust,  but 


COURTS,  II.  a,  6,  b. 


will  exercise  the  power  only  when  necessary 
to  prevent  the  trust  from  being  defeated; 
and  it  will  first  give  the  probate  court  a 
chance  to  make  such  an  appointment  where 
it  has  the  power.  Uailey  v.  New  Haven,  60 
Conn.  314,  22  Atl.  945,  14:  69 

303.  The  circuit  court  in  Wisconsip,  hav- 
ing general  jurisdiction,  is  not  precluded 
from  taking  jurisdiction  of  a  suit  against 
trustees  under  a  will  by  th6  fact  that  the 
will  has  been  proved  in  the  county  court 
and  the  estate  finally  settled  in  that  court, 
except  the  execution  of  the  trust,  although 
the  county  court  is  expressly  given  juris- 
diction of  such  suits.  Lamberton  v.  Pereles, 
87  Wis.  449,  58  N.  W.  776,  23:  824 
Estates  of  decedents. 

Jurisdiction  to  Appoint  Admini^rator,  see 

Executors  and  Administrators,  12-16. 
As    to    Instructions    to,   and    Control    Over 

Personal  Representatives,  see  Executors 

and  Administrators,  IV.  b. 
Jurisdiction  of  Suit  to  Construe  or  Reform 

Will,  see  Wills,  IV. 
See  also  supra,  296,  300;  Wills,  115. 
For  Editorial  Notes,  see  infra,  VI.  §  5. 

304.  The  county  court  has  exclusive  juris- 
diction in  the  first  instance,  under  Hill's 
(Or.)  Code,  §  895,  to  direct  and  control  the 
conduct,  and  to  settle  accounts,  of  executors, 
administrators,  and  guardians,  including 
the  power  to  inquire  into  cases  of  devastavit 
and  charge  the  delinquent  with  the  amount 
thereof.  Steel  v.  Holladay,  20  Or.  70;  25 
Pac.  69,  10:  670 

305.  The  grant  of  exclusive  jurisdiction 
over  the  estates  of  deceased  persons  to  the 
probate  courts,  by  the  Arkansas  Constitu- 
tion of  1874,  places  the  assets  of  a  decedent 
beyond  the  reach  of  process  from  any  other 
tribunal.  Meredith  v.  Scallion,  51  Ark.  361, 
11  S.  W.  516,  3:  812 

306.  The  superior  court  in  Connecticut  has 
jurisdiction  of  a  suit  to  compel  an  intes- 
tate's estate  which  has  been  saved  from 
insolvency  by  the  voluntary  act  of  all  the 
heirs  of  legal  age  to  refund  the  expense  in- 
curred thereby,  before  distribution.  Bene- 
dict V.  Chase,  58  Conn.  196,  20  Atl.  448, 

8:  120 
Insolvency. 

307.  Where  a  claim  is  presented  to  an 
assignee  for  the  benefit  of  creditors,  which 
for  its  suflRciency  depends  upon  the  validity 
of  a  mortgage  of  property  of  the  assignor 
as  against  his  creditors,  and  exceptions  to 
it  are  filed  which  properly  aver  the  mort- 
gage to  be  void  as  against  the  creditors  for 
fraud,  the  orphans'  court  is  the  , proper 
tribunal  to  hear  the  proofs  and  allegations 
of  the  parties  and  determine  the  question  of 
fraud.  Moore  v.  Williamson  (N.  J.  Prerog. 
Ct.)  44  N.  J.  Eq.  496,  15  Atl.  587,         1:  336 

6.  Crimes. 

Territorial  Limitation  as  to,  see  supra,  I. 

b,  2. 
Contlict  of  Authority  as  to,  see  infra,  TV. 

d,  2. 
Limitation  of  Jurisdiction  of  Police  Court, 

Be&  Criminal  Law,  81. 


Effect  of  Pending  Prosecution  in  Other 
Court,  see  Criminal  Law,  II.  e. 

Jurisdiction  to  Require  Surety  for  Good 
Behavior,    see    Criminal    Law,    194-196. 

See  also  supra,  255. 

308.  While,  under  La.  Rev.  Stat.  §  1010, 
justices  of  the  peace  have  no  authority  to 
investigate  charges  of  murder,  the  same 
being  vested  in  district  judges  only,  the  re- 
corders of  the  city  of  iNew  Orleans,  under 
previous  laws,  under  the  Constitution,  and 
the  city  charter,  are  empowered  to  do  so. 
State  ex  rel.  Matranga  v.  Bringier,  42  La. 
Ann.   1091,  8  So.  279,  10:  137 

309.  Although  exclusive  jurisdiction  is 
given  to  the  court  of  special  sessions  by  N. 
Y.  Code  Crim.  Proc.  §  56,  subd.  32,  as 
amended  by  N.  Y.  Laws  1884,  chap.  379, 
over  prosecutions  for  violations  of  the  excise 
law,  in  which  complaints  are  made  to  a 
committing  magistrate,  yet  if,  during  the 
preliminary  examination  for  the  purpose  of 
determining  whether  a  warrant  shall  issue, 
the  case  is  withdrawn  from  the  magistrate 
with  his  consent,  it  may  be  subsequently 
presented  to  the  grand  jury  and  tried  in 
the  court  of  sessions.  People  v.  Andrews, 
115  N.  Y.  427,  22  N.  E.  358,  6:  128 

310.  The  jurisdiction  conferred  upon 
courts  of  special  sessions  by  N.  Y.  Laws 
1885,  chap.  183,  §  14,  as  to  offenses  arising 
under  that  act,  is  not  exclusive.  Austin  v. 
Vrooman,  128  N.  Y.  229,  28  N.  E.  477, 

14:  138 
Violation  of  ordinance. 

311.  The  jurisdiction  of  the  mayor  over 
violation  of  an  ordinance  will  not  be  defeat- 
ed by  the  fact  that  a  provision  in  the  ordi- 
nance attempts  to  make  his  jurisdiction  ex- 
clusive, if  the  laws  give  him  at  least  a  co- 
ordinate jurisdiction.  State  v.  Biggs,  126 
N.  C.  1014,  35  S.  E.  473,  48:  446 

b.  Terms;  Place  of  Sitting. 

Eff"ect  of  Recess  in  Session,  see  Contempt, 
81. 

Judicial  Notice  of  Judicial  District,  see  Evi- 
dence, 42. 

Plurality  of  Subjects  in  Statute  as  to,  see 
Statutes,  265. 

Partial  Invalidity  of  Statute  as  to  Terms, 
see  Statutes,  94. 

See  also  supra,  240,  241. 

For  Editorial  Notes,  see  infra,  VI.  §  10. 

Adjourned  term. 

312.  A  court  has,  at  a  regularly  adjourned 
term,  all  the  power  in  respect  to  the 
amendment  of  'its  minutes  as  to  the  or- 
ganization of  the  grand  jury  by  which  an 
indictment,  designed  for  trial  at  the  or- . 
iginal  term  and  on  the  docket  at  the  time  of 
the  adjournment,  was  presented,  which  it 
would  have  had  at  the  original  term.  Keith 
V.  State,  91  Ala.  2,  8  So.  353,  10:  430 
Special  term. 

313.  Under  a  statute  providing  that  the 
governor  may  order  a  special  term  of  court 
in  any  county  whenever  it  shall  appear  to 
him  by  the  certificate  of  a  judge,  or  of  the 
county  commissioners,  or  otherwise,  that  a 


864 


COURTS,  II.  c— ni.  b. 


certain  state  of  facts  exists,  he  is  the  sole 
judge  of  the  sufficiency  of  the  evidence  to 
satisfy  him  that  a  special  term  is  required. 
State  V.  Lewis,  107  J^.  C.  967,  12  S.  E.  457, 

11:  105 
Place  of  sitting. 
Statute  as  to,  see  Statutes,  61. 

314.  A  conviction  on  a  trial  held  at  a 
county  seat  de  facto,  where  the  courthouse 
is  situated  and  the  public  business  actually 
transacted,  will  not  be  held  invalid  on 
habeas  corpus  under  the  statute  which  or- 
dains that  the  court  shall  be  held  at  the 
couLMV  seat,  although  the  removal  of  th<i 
county  scat  some  years  before  from  another 
place  was  illegal.  Re  Allison,  13  Colo.  b'iP), 
22  Pac.  820,  10:  790 

3jc>.  Long  acquiescence  in  the  univer'^L-I 
custom  of  courts  to  sit  at  county  seats  is 
equal  to  positive  law  requiring  the  courts  to 
be  held  at  those  places.  White  County 
Comrs.  V.  Gwin,  136  Ind.  562,  36  N.  E.  237, 

22:  402 

316.  In  Indiana  the  legislature  may  re- 
quire courts  to  sit  at  places  other  than  the 
county  seats.  Woods  v.  McCay,  144  Ind. 
316,  43  N.  E.  269,  33:97 

317.  An  act  establishing  for  a  county  an 
additional  court  to  sit  at  a  place  other  than 
the  county  seat  cannot  be  set  aside  because 
of  the  inconvenience  of  having  two  courts 
holding  their  sessions  at  different  places.  Id. 

c.  Transfer  of  Cause. 

Effect  of  Failure  to  Provide  for  Appeal  as 
to,  see  Appeal  and  Error,  6. 

Estoppel  to  Object  as  to,  see  Appeal  and 
Error,  491. 

Removal  of  Case  in  Division  to  Court  in 
Banc,  see  Appeal  and  Error,  1264. 

In  Eminent  Domain  Case,  see  Eminent  Do- 
main, 179. 

Transfer  between  State  and  Federal  Courts, 
see  Removal  of  Causes. 

318.  No  transcript  of  the  proceedings  in 
one  division  of  a  court  need  be  certified  to 
another  division  upon  the  transfer  of  a 
criminal  cause  from  one  to  the  other  for 
trial  because  of  alleged  prejudice  on  the  part 
of  the  judge  presiding  in  the  former  divi- 
sion, where  the  same  clerk  is  the  custodian 
of  the  proceedings  in  both  divisions.  State 
V.  Lehman,   182  IMo.  424,  81   S.  W.   1118. 

66:  490 

d.  Opinions. 

See  also  supra,  286.  ^ 

319.  The  mere  fact  that  opinions  are  pre- 
pared by  the  commissioner  of  the  supreme 
court  of  Nebraska  is  no  indication  that  such 
cases  have  not  been  examined  by  the  judges; 
but  all  questions  of  law,  and,  so  far  as  prac- 
ticable, questions  of  fact,  are  considered  by 
each  of  the  judges  and  commissioners,  and 
opinions  are  invariably  submitted  for  ex- 
amination and  criticism  by  the  entire  mem- 
bership of  the  court.  Randall  v.  National 
Hidg.  L.  &  P.  Union,  42  Neb.  809,  60  N.  W. 
1019,  29:  133 


320.  \Miether  or  not  an  opinion  shall  be 
filed  in  the  decision  of  a  case  is  a  matter 
of  discretion  with  the  supreme  court.  Par- 
ker V.  Atlantic  Coast  Line  R.  Co.  133  N.  C. 
335,  45   S.   E.   658,  63:  827 

321.  A  constitutional  provision  that  "the 
governor  shall  have  authority  to  require  the 
opinion  of  the  judges  of  the  supreme  court 
upon  important  questions  of  law  involved  in 
the  exercise  of  his  executive  powers,  and 
upon  solemn  occasions,"  is  confined  ex- 
clusively to  such  questions  as  may  raise  a 
doubt  in  the  executive  department,  and  the 
court  will  refuse  to  answer  questions  pro- 
pounded by  the  governor  upon  request  of 
the  legislature.  Re  Construction  of  Consti- 
tutional Provision,  3  S.  D.  548,  54  N.  W. 
650,  19:  575 


m.  Federal    Courts. 

a.  Suits  by  or  against  State  or  State  Of- 
ficers. 

For  Editorial  Notes,  see  infra,  VI.  §  13. 

322.  A  United  States  circuit  court  has  no 
jurisdiction  of  a  suit  civil  in  form,  but  penal 
in  nature,  brought  by  a  state  officer  in  his 
official  character  to  enforce  penalties  im- 
posed by  the  state  law  and  to  be  paid  into 
the  state  treasury,  and  in  which  the  officer 
has  no  personal  interest,  not  even  for  fees 
or  commissions.  Ferguson  v.  Ross,  38  Fed. 
161,  3:  322 

323.  Courts  will  look  behind  the  nominal 
parties  on  the  record  to  ascertain  who  are 
the  real  parties  to  the  suit,  and  will  deter- 
mine wliether  a  state  is  the  real  party  to  an 
action  brought  by  or  against  its  officer,  by  a 
consideration  of  the  nature  of  the  case  as 
presented  by  the  whole  record.  Id. 

324.  The  Federal  courts  have  jurisdiction 
of  a  suit  against  state  railroad  commission- 
ers, brought  by  a  corporation  created  by  an- 
other state,  to  restrain  the  enforcement  of 
a  schedule  of  rates  prepared  by  such  com- 
missioners under  a  state  statute  claimed*  by 
the  complainant  to  be  unconstitutional. 
Such  a  suit  is  not  in  effect  a  suit  against  the 
state,  and  hence  is  not  within  the  11th 
Amendment  to  the  Constitution,  which  pro- 
hibits the  Federal  courts  from  entertaining' 
suits  brought  against  a  state  by  citizens  of 
another  state.  Chicago  &  N.  W.  R.  Co.  v. 
Dey,  35  Fed.  866,  1 :  744 

b.  Suits  against  United  States. 

See  also  infra,  345c. 

325.  A  claim  against  the  United  States 
for  damages  to  rice  fields  by  the  con- 
struction of  a  dam  in  making  harbor  im- 
provements is  one  sounding  in  tort,  and  is 
not  within  the  jurisdiction  of  the  circuit 
court.     Mills  V.  United  States,  46  Fed.  738, 

12:  673 

326.  The  jurisdiction  of  the  court  of 
claims  to  find  the  facts,  make  conclusions 
of  law,  and  give  opinions  in  matters  referred 
to  it  by  heads  of  the  executive  departments. 


COURTS.  III.  c,  d. 


865 


without  entering  judgments,  is  not  restrict- 
ed by  U.  S.  Rev.  Stat.  §  1066.  U.  S.  Comp. 
Stat.  1901,  p.  739,  forbidding  jurisdiction 
of  claims  dependent  on  a  treaty.  Thing- 
valla  Line  v.  United  States,  24  Ct.  CI.  255. 

5:  133 

327.  The  act  of  Congress  of  March  3,  1887, 
24  Stat,  at  L.  552,  chap.  373,  conferring  ju- 
risdiction of  all  suits  at  common  law  or  in 
equity  where  the  United  States  is  plaintiff 
or  petitioner,  without  reference  to  special 
subjects  of  revenue,  etc.,  does  not  repeal  by 
implication  the  grant  of  jurisdiction  over  the 
special  subjects  mentioned  in  the  independ- 
ent clause  of  U.  S.  Rev.  Stat.  §  629,  U.  S. 
Comp.  Stat.  1901,  p.  503.  United  States  v. 
Shaw,  39  Fed.  433,  3:  232 

c.  Federal  Questions.     ^ 

For  Editorial  Xotes,  see  infra,  VI.  §  13. 

328.  The  Federal  courts  are  without  juris- 
diction to  entertain  a  suit  to  determine  the 
respective  rights  of  the  parties  to  any  land 
the  title  to  which  remains  in  the  govern- 
ment of  the  United  States,  in  regard  to 
which  a  contest  is  pending  in  the  Land  De- 
partment of  the  government.  Cosmos  Ex- 
ploration Co.  V.  Gray  Eagle  Oil  Co.  50  C.  C. 
A.  79,  112  Fed.  4,     "  61:  230 

329.  A*  case  for  cognizance  by  a  Federal 
court  is  constituted  bj'  the  fact  that  a  sin- 
gle question  dependent  on  the  Constitution 
or  a  law  or  treaty  of  the  United  States  is 
involved,  although  at  the  same  time  other 
t|uestions  depending  upon  the  general  prin- 
ciples of  law  are  also  involved.  Toledo.  A. 
A.  &  N.  M.  R.  Co.  V.  Pennsylvania  Co.  54 
Fed.  74<5,  19:  395 

330.  A  suit  by  a  receiver  of  a  water  com- 
pany appointed  by  a  Federal  court,  to  re- 
cover from  a  city  rentals  due  for  hydrants, 
is  one  arising  under  the  laws  of  the  I'nited 
States,  within  the  jurisdiction  of  the  Fe<l- 
eral  court.  Kiehl  v.  South  Bend.  22  C.  C.  A. 
618,  44  U.  S.  App.  G87.  76  Fed.  921,  36:  228 
Matters  affecting  commerce. 

See  also  infra,  334. 

For  Editorial  Notes,  see  infra,  VI.  §  13. 

331.  The  United  States  circuit  court  has 
jurisdiction  to  enforce  any  rights  arising 
b.ates  V.  Lancaster,  44  Fed.  885,  10:  317 
though  the  same  rights  may  have  existed 
at  common  law.  Toledo,  A.  A.  &  N.  M.  R. 
Co.  V.  Pennsylvania  Co.  .54  Fed.  730,    19:  387 

332.  Circuit  courts  of  the  United  States 
may  constitutionally  be  given  jurisdiction  of 
suits  by  the  government  to  enjoin  illegal 
combinations  in  restraint  of  interstate  com- 
merce; and  it  da«=  not  depend  on  di-verse 
citizenship  of  the  parties.  Unite<l  fetates  v. 
Jellico  Mountain  Coke  &  C.  Co.  46  Fed.  432, 

12:  753 
National  Banking  act. 
For  Editorial  Notes,  see  infra,  VI.  §  13. 

333.  An  agent  appointed  under  the  pro- 
visions of  the  national  banking  act  to  take 
the  place  of  a  receiver,  under  certain  cir- 
cumstances, has  the  same  right  as  the  re- 
ceiver to  sue  in  a  Federal  court,  without  re- 
gard to  citizenship  or  the  amount  in  con- 
troversy. McConville  v.  Gilmour,  .36  Fed. 
277,  1 :  498 

L.  R.  A.  Dig.— 55. 


Enforcement  of  decisions. 

334.  The  right  asserted  by  a  petitioner 
asking  for  the  enforcement  of  an  order  of 
the  Interstate  Commerce  Commission  arises 
and  is  claimed  under  a  law  of  the  Uniteu 
States  which  relates  to  a  subject  over  which 
Congress  has  exclusive  control;  and  this  is 
sufficient  to  sustain  the  jurisdiction  of  the 
circuit  court,  independent  of  the  citizenship 
of  the  parties  to  the  controversy,  since  it 
involves  a  Federal  question.  Kentucky  &  I. 
Bridge  Co.  v.  Louisville  &  M.  R.  Co.  37  Fed. 
567,  2:  289 

335.  The  right  of  one  having  an  interest 
in  the  enforcement  of  a  decree  of  a  United 
States  circuit  court  granting  an  injunction, 
to  institute  proceedings  in  such  court  for 
the  punishment  of  one  violating  the  injunc- 
tion, is  a  right  arising  under  the  Constitu- 
tion and  laws  of  the  United  States.  United 
States  V.  Lancaster,  44  Fed.  885,  10:  317 

3.36.  The  right  of  a  citizen  of  one  state  to 
institute  proceedings  in  a  United  States  cir- 
cuit court  situated  in  another  state  to  pun- 
ish for  contempt  citizens  of  the  latter  state 
who  have  disobeyed  a  decree  of  suc^h  court, 
in  the  enforcement  of  which  the  petitioner 
has  an  interest,  is  a  right  secured  by  the 
Constitution  and  laws  of  the  United  States, 
within  the  meaning  of  U.  S.  Rev.  Stat.  §§ 
5508,  5509,  U.  S.  Comp.  Stat.  1901,  p.  3712, 
which  provide  a  punishment  for  conspiring 
to  injure,  oppress,  threaten,  or  intimidate 
a  person  in  the  exercise  of  such  rights.      Id. 

d.  As  Dependent  on  Citizenship. 

As  to  Federal  Districts,  see  infra,  III.  i. 

Abatement  of  Suit  for  Nonresidence  of  Par- 
ties, see  Abatement  and  Revival,  5. 

Waiver  of  Objection  as  to  Jurisdiction,  see 
Pleading,  51. 

Plea  to  Jurisdiction,   see  Pleading,  495. 

Removal  of  Action  on  Ground  of  Citizenship, 
see  Removal  of  Causes,  I.  b. 

See  also  supra.  332;  infra,  364;  Judgment, 
149. 

For  Editorial  Notes,  see  infra,  VT.  §  13. 

337.  Jurisdiction  of  "controversies"  be- 
tween citizens  of  different  states,  given  to 
Federal  courts  by  the  Constitution,  extends 
to  all  "cases"  or  "suits"  between  such  par- 
ties, including  a  habeas  corpus  case,  which 
involves  the  right  to  personal  liberty.  King 
V.  McLean  Asylum  of  M.  G.  H.  21  U.  S.  App. 
481,  12  C.  C.  A.   145,  64  Fed.  331,     26:  784 

338.  Wherever  the  citizens  of  a  strife  may 
secure  a  trial  of  their  controversies  by  its 
courts  of  general  jurisdiction  either  by  origi- 
nal process,  or  by  appeal,  or  by  other  pro- 
ceedings, the  citizens  of  different  states  may 
obtain  the  trial  of  like  controversies  between 
them  by  some  appropriate  action  in  the 
Federal  courts.  Re  Barber  Asphalt  Pa  v.  Co. 
1.32  Fed.  945.  67:  761 

339.  Jurisdiction  of  a  habeas  corpus  case 
on  the  ground  of  citizenship  may  exist  in  a 
Federal  court  under  U.  S.  Rev.  Stat.  §§  751, 
752,  U.  S.  Comp.  Stat.  1901,  p.  592.  where  the 
strict  issue  between  citizens  of  different 
states  is  whether  or  not  the  petitioner  is  en- 
titled to  his  liberty  from  restraint  as  an 


866 


COURTS,  III.  e. 


insane  person  anywhere.  King  v.  McLean 
Asylum  of  M.  G.  H.  64  Fed.  331,  21  U.  S. 
App.  481,  12  C.  C.  A.  145,  26:  784 

340.  A  transitory  action  for  a  personal 
tort,  accruing  in  Mexico,  is  within  the  juris- 
diction of  a  circuit  court  of  the  United 
States,  where  one  party  is  a  citizen  and  resi- 
dent of  Texas  and  the  other  a  citizen  of 
Massachusetts.  Evey  v.  Mexican  C.  R.  Co. 
26  C.  C.  A.  407,  52  U.  S.  App.  118,  81  Fed. 
294,  38:  387 

341.  Jurisdiction  is  not  conferred  on  a 
Federal  court  by  maKing  a  necessary  party, 
whose  interests  are  all  in  common  with 
those  of  the  complainants,  a  nominal  defend- 
ant, in  order  that  all  the  complainants  may 
be  nonresidents  of  the  state  in  which  the 
suit  is  brought  and  of  which  the  defendants 
are  citizens.    Rich  v.  Bray,  37  Fed.  273, 

2:  225 

342.  To  give  jurisdiction  to  a  Federal  cir- 
cuit court,  where  two  or  more  parties,  whose 
interests  are  so  separate  that  any  number  of 
them  may  proceed  with  the  litigation  with- 
out the  others,  join,  as  a  matter  of  conven- 
ience to  prevent  multiplicity  of  suits,  in  one 
action  for  the  ascertainment  and  distribution 
of  their  respective  interests  in  a  common 
fund,  the  interests  of  each,  independent  of 
the  others,  must  amount  to  $2,000.  Id. 

343.  A  limited  partnership,  under  the  laws 
of  Pennsylvania,  although  entitled  to  sue  as 
an  individual,  is  not  entitled  to  maintain  a 
suit  as  "a  citizen,"  in  a  Federal  court, 
against  citizens  of  other  states.  Imperial 
Ref.  Co.  V.  Wyman,  38  Fed.  574,  3:  503 

344.  The  jurisdiction  of  a  United  States 
circuit  court  of  an  action  on  coupons  payable 
to  bearer,  when  the  parties  are  citizens  of 
different  states,  is  not  defeated  by  the  fact 
that  with  the  cause  of  action  on  the  coupons 
plaintiff  has  joined  in  the  same  count  a 
claim  upon  municipal  bonds  to  which  the 
coupons  were  attached,  although  under  the 
act  of  Congress  of  August  13,  1888  (25  Stat. 
at  L.  434,  chap.  866,  U.  S.  Comp.  Stat.  1901, 
p.  508),  the  court  has  no  jurisdiction  of  the 
action  on  the  bonds  because  they  are  not 
made  payable  to  bearer,  but  to  a  payee  of 
the  same  state  as  the  maker.  Independent 
School  Dist.  V.  Rew,  49  C.  C.  A.  198,  111 
Fed.  1,  55:  364 
Citizenship  at  commencement  of  action. 
For  Editorial  Notes,  see  infra,  VI.  §  13. 

344a.  Citizenship,  to  give  jurisdiction  to  a 
Federal  court,  must  have  existed  at  the  com- 
mencement of  the  action.  Seddon  v.  "Virgin- 
ia, T.  &  C.  Steel  &  I.  Co.  36  Fed.  6,  1 :  108 
Citizenship  in  District  of  Columbia. 
For  Editorial  Notes,  see  infra,  VI.  §  13. 

344b.  Federal  citizenship  in  a  territory  or 
in  the  District  of  Columbia  will  not  suffice 
to  give  jurisdiction  to  a  Federal  court  on  the 
ground  of  citizenship.  Seddon  v.  Virginia, 
T.  &  C.  Steel  &  I.  Co.  36  Fed.  6,  1:  108 

Citizenship  of  married  woman. 

344c.  A  married  woman  unlawfully  de- 
serted by  her  husband  may,  without  the  ne- 
cessity of  a  decree  of  court,  establish  an  in- 
dependent domicil,  if  permitted  by  the  law 
of  the  state  where  she  takes  up  her  resi- 
dence,   which    will    control    in    determining 


whether  there  is  a  diversity  of  citizenship 
sufficient  to  give  the  Federal  courts  jurisdic- 
tion of  an  action  brought  by  her  to  recover 
damages  for  personal  injuries.  Watertown 
V.  Greaves,  50  C.  C.  A.  172,  112  Fed.  183, 

5B:  865 

344d.  The  circuit  courts  of  the  United 
States  have  jurisdiction  to  cancel  a  written 
contract  of  marriage  on  the  ground  of  its 
forgery,  where  the  contract  assumes  imme- 
diately to  create  the  marriage  relation,  im- 
posing upon  the  husband  all  the  obligations 
which  the  law  creates  by  marriage,  if  the 
parties  are  citizens  of  different  states,  and 
the  pecuniary  value  of  the  marital  obliga- 
tions and  rights  is  of  the  amount  required  to 
give  jurisdiction.  Sharon  v.  Terry,  13  Sawy. 
387,  36  Fed.  337,  1:572 

Citizenship  of  corporation. 
Removal  of  Action,  see  Removal  of  Causes, 

II.;  16,  22. 
See  also  Corporations,  823,  825. 
For  Editorial  Notes,  see  infra,  VI.  §  13. 

344e.  A  Federal  court  has  no  jurisdiction 
of  an  action  by  a  citizen  of  the  state  against 
a  consolidated  railway  company  organized 
under  the  statutes  of  that  and  adjoining 
states,  for  personal  injuries  inflicted  within 
the  state,  as  such  corporation  is  a  domestic 
corporation  for  jurisdictional  purposes.  Mis- 
souri P.  R.  Co.  V.  Meeh,  69  Fed*.  753,  32 
U.  S.  App.  691,  16  C.  C.  A.  510,  30:  250  , 
Assignees  as  parties. 
For  Editorial  Notes,  see  infra,  VI.  §  13. 

345.  An  action  for  damages  for  the  breach 
of  a  written  contract  of  lease  is  an  action 
"founded  upon  contract,"  in  the  sense  of 
that  language  as  used  in  the  restriction  con- 
tained in  the  act  of  Congress  of  March  3, 
1875,  §  1 ;  and  a  circuit  court  of  the  United 
States  cannot  take  cognizance  of  such  a  suit 
in  favor  of  an  assignee  unless  the  same 
might  have  been  prosecuted  by  the  assignor 
if  no  assignment  had  been  made.  Republic 
Iron  Min.  Co.  v.  Jones,  37  Fed.  721,      2:  746 

345a.  Where  the  maker  and  payee  of  a 
note  are  both  citizens  of  the  same  state,  it 
may  be  proved  in  a  suit  by  the  indorsee,  in 
order  to  give  jurisdiction  to  a  Federal  court, 
that  the  note  was  made  for  the  accommoda- 
tion of  the  nominal  payee,  who  was  the  real 
maker,  and  that  the  indorsee  was  in  fact  the 
real  payee,  and  that  there  never  had  been 
any  assignment  of  the  note.  Goldsmith  v. 
Holmes,  13  Sawy.  526,  36  Fed.  484,       1:  816 

345b.  The  test  of  the  negotiability  of  a 
note,  in  order  to  determine  the  right  of  an 
assignee  to  sue  thereon  in  the  circuit  court 
of  the  United  States,  under  the  act  of  Con- 
gress of  1875,  is  its  negotiability  according 
to  the  principles  of  the  law  merchant,  and  is 
not  affected  by  state  statutes.  Windsor 
Sav.  Bank  v.  McMahon,  38  Fed.  283,      3:  192 

e.  As  Dependent  on  Amount. 

Removal  of  Case  as  Dependent  on,  see  Re- 
moval of  Causes,  28. 
See  also  supra.  327,  342,  344d. 
For  Editorial  Notes,  see  infra,  VI.  §  13. 

345c.  The  limitation  as  to  the  amount  in 
a  controversy  necessary  to  give  the  circuit 


COUKT8.  III.  f. 


887 


court  jurisdiction,  fixed  by  the  act  of  Con- 
gress of  March  3,  1887,  §  1  (24  Stat,  at  L. 
552,  chap.  373),  does  not  apply  to  suits  in 
which  the  United  States  is  a  plaintiff  or  pe- 
titioner.   United  States  v.  Shaw,  39  Fed.  433, 

3:  232 

345d.  The  amount  of  the  annual  license 
tax  is  not  the  amount  in  controversy  in  a 
suit  to  restrain  the  enforcement  of  the  tax, 
so  as  to  defeat  the  jurisdiction  of  a  Federal 
court,  where  complainant  asks  to  be  relieved 
from  threatened  penalties,  and  alleges  that, 
if  the  injunction  is  not  granted,  its  business 
will  be  entirely  destroyed,  and  it  will  be 
damaged  in  a  sum  exceeding  $2,000,  and  that 
goods  in  excess  of  that  sum  will  be  seized. 
American  Fertilizing  Co.  v.  North  Carolina 
Bd.  of  Agri.  43  Fed.  609,  \     11:  179 

345e.  The  jurisdiction  of  a  circuit  court  of 
the  United  States,  in  an  action  to  set  aside 
an  award  against  insurance  companies  for 
the  loss  of  insured  property,  where  the  in- 
surance by  each  company  was  for  more  than 
$2,000,  is  not  defeated  by  the  fact  that  the 
award  was  less  than  the  amount  of  the  total 
insurance,  and  that  therefore  the  interest  of 
some  of  the  companies  might  be  less  than 
$2,000  each,  where  it  is  not  shown  that 
there  was  any  pro  rata  clause  in  the  policy, 
as  the  insured  might  select  certain  compan- 
ies and  collect  of  each  the  full  amount  of  the 
policy,  in  the  absence  of  such  a  clause. 
Hartford  F.  Ins.  Co.  v.  Bonner  Mercantile 
Co.  44  Fed.  151,  11:623 

346.  Under  U.  S.  Rev.  Stat.  §  629,  cl.  4,  U. 
S.  Corap.  Stat.  1901,  p.  503,  which  is  not  re- 
pealed by  the  acts  of  March  3,  1875,  18  Stat, 
at  L.  470,  chap.  137,  U.  S.  Comp.  Stat.  1901, 
p.  508,  and  March  3,  1887,  24  Stat,  at  L. 
552,  chap.  373,  circuit  courts  have  jurisdic- 
tion in  suits  arising  under  the  revenue 
law,  although  the  amount  involved  is  less 
than  $2,000.  Ames  v.  Hager,  13  Sawy.  473, 
36  Fed.   129,  1:  377 

347.  Whether  or  not  the  amount  in  dis- 
pute in  a  suit  by  a  taxpayer  to  enjoin  a 
city  from  issuing  bonds  because  it  is  already 
indebted  beyond  its  limit  is  sufficient  to 
give  jurisdiction  to  a  Federal  court  is  deter- 
mined by  the  amount  of  bonds  contemplat- 
ed. Ottumwa  V.  City  Water  Supplv  Co.  56 
C.  C.  A.  219,  119  Fed.  315,  '  59:  604 

f.  In  Equity;  Following  State  Practice;  Ef- 
fect of  State  Laws. 

See  also  supra,  345b. 

348.  The  equitable  jurisdiction  of  the  Fed- 
eral courts  vested  in  them  under  the  judi- 
ciary act  of  1789,  and,  where  it  has  not  been 
subsequently  changed  by  act  of  Congress, 
the  test  of  that  jurisdiction  is  the  adequacy 
of  the  remedy  at  law  for  wrongs  of  the 
character  under  consideration  in  the  year 
1789,  when  the  judiciary  act  was  adopted. 
National  Suretv  Co.  v.  State  Bank,  56  C. 
C.  A.  657,  120  Fed.  593,  61 :  394 

349.  A  Federal  court  of  equity  has  no 
jurisdiction  of  a  suit  to  try  the  title  to  land 
of  which  defendant  is  in  possession.  Cos- 
mos Exploration  Co.  v.  Gray  Eagle  Oil  Co. 
50  C.  C.  A.  79,  112  Fed.  4,  61 :  230 


350.  A  statute  permitting  a  simple-con- 
tract creditor  to  file  a  bill  in  equity  without 
reducing  his  claim  to  judgment,  for  the  pur- 
pose of  reaching  assets  to  pay  the  debts  of 
an  insolvent  corporation,  is  not  applicable 
to  proceedings  in  the  Federal  courts.  Mor- 
row Shoe  Mfg.  Co.  V.  New  England  Shoe  Co. 
18  U.  S.  App.  256,  616,  6  C.  C.  A.  508,  8  C.  C. 
A.  652,  57  Fed.  685,  60  Fed.  341,  24:  417 
Following  state  practice. 

As  to  Revival  of  Action,  see  Abatement  and 
Revival,  42. 

In  Suit  to  Remove  Cloud  from  Title,  see 
Cloud  on  Title,  17. 

In  Condemnation  Proceedings,  see  Eminent 
Domain,  162. 

Judicial  Notice  of  State  Statutes,  see  Evi- 
dence, 21-23. 

See  also  infra,  362;  Pleading,  494. 

For  Editorial  Notes,  see  infra,  VI.,  §  16. 

351.  In  a  suit  by  an  occupying  claimant 
to  restrain  the  execution  of  a  writ  of  pos- 
session, a  Federal  court  may,  in  its  discre- 
tion, refer  the  case  to  a  master,  or  appoint 
commissioners,  instead  of  directing  the  mar- 
shal to  summon  appraisers  in  accordance 
with  the  state  practice,  although  it  is  de- 
sirable to  follow  state  practice  as  near  as 
may  be.  Leigh  ton  v.  Young,  10  U.  S.  App. 
298,  3  C.  C.  A.  176,  52  Fed.  439,  18:  266 

352.  That  the  mode  of  procedure  in  a  Fed- 
eral court  adopted  by  an  occupying  claimant 
to  enforce  compensation  for  improvements 
placed  by  him  on  land  which  has  been  ad- 
judged to  the  true  owner  does  not  conform 
strictly  to  the  requirements  of  the  state 
occupying  claimants'  law  will  not  defeat 
the  action,  if  in  the  state  statute  legal  and 
equitable  rights  and  modes  of  proceeding  are 
confounded,  since  the  Federal  courts  will  en- 
force the  right  but  will  preserve  the  dis- 
tinction between  law  and  equity.  Id, 

353.  A  rule  of  evidence  under  a  state 
statute  as  to  privileged  communications 
must  be  regarded  in  the  circuit  court  sit- 
ting in  that  state,  under  U.  S.  Rev.  Stat.  § 
858,  U.  S.  Comp.  Stat.  1901,  p.  659, 
making  the  laws  of  the  state  the  rules 
of  decision  as  to  competency  of  witnesses, 
except  as  affected  by  the  color  or  interest  of 
the  witness,  or  in  actions  against  executors 
and  administrators  or  guaixiians.  Mutual 
Ben.  L.  Ins.  Co.  v.  Robison.  19  U.  S.  App.  266, 
7  C.  C.  A.  444,  58  Fed.  723,  22:  325 
Effect  of  state  laws  to  restrict  or  enlarge. 
Enforcing  State  Law  in  Admiralty  Court, 

see  Admiralty,  7. 
See  also  Damages,  449;   Conflict  of  Laws, 

214;  Lis  Pendens.  7. 
For  Editorial  Notes,  see  infra,  VI.  §  16. 

354.  The  states  did  not  grant,  and  they 
cannot  by  their  legislation  revoke,  impair  or 
destroy,  the  equitable  jurisdiction  of  the  na- 
tional courts.  National  Surety  Co.  v.  State 
Bank,  56  C.  C.  A.  657,  120  Fed.  593,      61 :  394 

355.  While  state  legislation  may  not  im- 
pair or  destroy,  it  may  enlarge,  the  rights 
and  remedies  in  equity  in  the  national 
courts.  Id. 

356.  The  jurisdiction  of  the  Federal  courts 
may  not  be  limited  or  impaired  by  state 
legislation  which  confers  ezclusiTe  jurisdic- 


888 


COURTS,  in.  g.  h. 


tiou  of  litigation  upon  state  courts  or  pre- 
scribes exclusive  methods  of  invoking  that 
jurisdiction.  Re  Barber  Asphalt  Pav.  Co.  132 
Fed.  !)45,  67:  761 

357.  The  equitable  jurisdiction  of  Federal 
courts,  under  the  judiciarj'  act  of  1789,  can- 
not be  taken  away  by  state  statutes  giving 
a  right  to  equitable  remedies  in  courts  of 
law.  Hartford  F.  Ins.  Co.  v.  Bonner  ^ler- 
cantile  Co.  44  Fed.  151,  11:  623 

358.  The  remedy  at  laAv  which  will  defeat 
the  equitable  jurisdiction  of  the  Federal 
court  may  be  a  remedy  at  common  law,  and 
not  merely  a  legal  remedy  given  by  a  state 
statute.  Grand  Rapids  &  I.  R.  Co.  v.  Spar- 
row, 36  Fed.  210,  1:  480 

359.  The  courts  of  the  United  States  sit- 
ting in  equity  may  administer,  in  suits  of 
which  they  have  jurisdiction,  equitable 
rights  peculiar  to  the  laws  of  the  state 
where  the  courts  are  held.  Fechheimer  v. 
Baum,  37  Fed.  167.  2?  153 

360.  A  state  statute  authorizing  an  origi- 
nal suit  in  the  court  in  which  an  unconscion- 
able judgment  that  the  defendant  was  pre- 
vented by  unavoidable  casualty  from  defend- 
ing against  was  rendered,  to  enjoin  its  collec- 
tion and  to  annul  it.  provides  a  cumulative 
remedy,  and  does  not  impair  the  original 
equitable  jurisdiction  of  the  circuit  courts  of 
the  United  States  to  grant  appropriate  re- 
lief for  a  like  cause  in  cases  in  which  the 
citizenship  of  the  parties  and  the  amounts 
in  controversy  give  those  courts  jurisdiction. 
N^ational  Suretv  Co.  v.  State  Bank.  56  C.  C. 
A.  657,  120  Fed.  593,  61 :  .394 

:J61.  An  equitable  defense,  under  a  state 
Code,  to  an  action  at  law  upon  an  award, 
based  on  misconduct  of  the  arbitrators  which 
did  not  go  to  their  jurisdiction  to  hear  the 
dispute  and  which  does  not  appear  on  the 
fnce  of  the  award,  is  not  a  valid  defense 
in  an  action  at  law  in  a  circuit  court  of  the 
United  States,  and  therefore  does  not  defeat 
the  equitable  jurisdiction  of  the  latter  court 
to  set  aside  the  award.  Hartford  F.  Ins. 
Co.  V.  Bonner  Mercantile  Co.  44  Fed.  151, 

11:  623 

362.  A  circuit  court  of  the  United  States 
has  no  jurisdiction  in  an  action  at  law  upon 
a  note  to  enforce  a  specific  lien  upon  prop- 
erty conveyed  to  secure  it,  according  to  a 
remedy  and  practice  given  by  state  law, 
without  foreclosure  proceedings.  American 
Freehold  Land  &  Mortg.  Co.  v.  Thomas,  47 
Fed.  550,  12:  681 

363.  The  equity  jurisdiction  of  the  Federal 
courts  may  extend  to  a  suit  for  the  disclos- 
ure and  distribution  of  assets  held  by  an 
executor  de  son  tort,  although  such  suit 
could  not  be  maintained  in  the  state  courts 
for  the  reason  that  the  probate  system  of 
the  state  affords  a  complete  remedy.  Rich 
V.  Bray.  .37  Fed.  273,     .  2:  225 

364.  The  extension  by  a  state  of  equity 
jurisdiction  to  suits  to  set  aside  probated 
wills  will  permit  the  maintenance  of  such 
suits  in  Federal  courts  sitting  in  such  state, 
which  acquire  jurisdiction  through  diverse 
citizenship  of  the  parties.  Williams  v. 
Crabb,  54  C.  C.  A.  213,  117  Fed.  193,    59:  425 

365.  A  provision  of  a  state  statute  giving 


a  cause  of  action  for  death  by  negligence, 
that  the  action  shall  be  brought  in  some 
court  established  by  the  Constitution  and 
laws  of  the  state,  is  not  operative  to  deprive 
a  Federal  court  of  jurisdiction  of  such  ac- 
tion. Bigelow  V.  Nickerson.  .34  U.  S.  App. 
261,  17  C.  C.  A.  1,  70  Fed.  113,  30:  336 

366.  A  state  law  passed  since  1789  can- 
not affect  criminal  procedure  in  the  Federal 
courts.  A  final  record  was  required  to  be 
made  by  the  clerk  at  common  law.  and  the 
general  method  of  making  the  record  pre- 
scribed by  the  common  law  should  be  fol- 
lowed now,  subject  to  such  changes  as  have 
been  wrought  by  the  character  of  our  insti- 
tutions and  the  modifications  made  neces- 
sary by  the  enlarged  Bill  of  Rights  of  the 
Federal  Con.stitution.  Erwin  v.  United 
States,  37  Fed.  470,  2:  229 

367.  The  fact  that  the  local  statute  pro- 
vides that  a  creditor  of  an  insolvent  trader, 
or  firm  of  traders,  whose  debt  is  mature,  un- 
paid, demanded,  and  payment  refused,  may 
ask  for  a  receiver,  creates  an  exception  to 
the  rule  making  the  existence  of  a  lien  a 
prerequisite  to  such  an  application  in  a  court 
of  the  United  States.  Fechheimer  v.  Baum, 
37  Fed.  167.  2:  153 

368.  A  receiver  of  a  Federal  court  in 
charge  of  a  railroad  company,  who,  bv  act 
of  Congress  March  3,  1887,  chap.  373,"  cor- 
rected by  act  August  13,  1888,  chap.  866,  is 
required  to  manage  and  operate  the  property 
according  to  the  requirements  of  the  valid 
laws  of  the  state  in  which  it  is  situated,  in 
the  same  manner  as  the  owner  or  possessor 
thereof  would  be  bound  to  do  if  in  posses- 
sion, is  subject  to  any  rule  prescribed  by 
the  state  imposing  on  railroad  corporations 
a  liability  for  the  negligence  of  employees 
having  superior  authority  over  other  em- 
ployees. Peirce  v.  Van  Dusen,  24  C.  C.  A. 
280,  47  U.  S.  App.  339,  78  Fed.  693,      69:  705 

g.  Ancillary  Jurisdiction. 

For  Editorial  Notes,  see  infra,  VI.  §  1^ 

369.  A  proceeding  by  receivers  of  a  corpo- 
ration to  enforce  the  liability  of  a  stockhold- 
er is  ancillary  to  the  receivership  suit,  and 
the  jurisdiction  thereof  depends  upon  the 
jurisdiction  in  the  original  case.  Peck  v. 
Elliott,  24  C.  C.  A.  425,  47  U.  S.  App.  605, 
79  Fed.  10,  38:  616 

370.  The  legal  character  of  the  liability 
of  a  stockholder  does  not  prevent  its  en- 
forcement by  receivers  in  a  proceeding  which 
is  wholly  ancillary  to  the  original  receiver- 
ship suit  in  equity.  Id. 

371.  A  Federal  court  has  jurisdiction  of  a 
suit  in  equit}'  to  reform  a  policy  of  insur- 
ance, if  it  has  jurisdiction  of  the  action  at 
law  between  the  same  parties  upon  the  poli- 
cy, already  commenced,  to  which  the  equity 
suit  is  merely  auxiliary.  Rosenbaum  Bros. 
V.  Council   Bluffs  Ins.  Co.  37  Fed.  724, 

3:  189 
h.  Crimes. 

Territorial  Limits  as  to,  see  supra,  I.  b,  2. 
Conflict  of  Authority  as  to,  see  infra,  IV. 

d,  2. 
See  also  supra,  366. 


COURTS,  111.  i,  IV.  a. 


372.  It  is  not  within  the  power  of  the 
United  States  to  punish  for  a  conspiracy  to 
murder  within  a  state,  unless  the  murder 
was  in  violation  of  a  United  States  statute. 
United  States  v.  Lancaster,  44  Fed.  896, 

10:  333 
i.  Districts. 

Waiver  of  Objection  as  to,  see  Appeal  and 
Error,  671. 

373.  A  United  States  circuit  court  sitting 
in  one  of  several  states  by  the  concurrent 
action  of  which  a  railroad  company  was  in- 
corporated has  jurisdiction  of  a  suit  brought 
against  the  company  by  a  citizen  of  another 
of  said  states.  Boston  &  M.  R.  v.  Hurd, 
47  C.  C.  A.  {>15,  108  Fed.  116,  50:  193 

374.  Under  the  act  of  Congress  <of  March 
3,  1887,  a  civil  action  in  a. Federal  court  for 
violations  of  the  Interstate  Commerce  Act 
can  be  brought  only  in  the  district  whereof 
defendant  is  an  'inhabitant,"  as  jurisdic- 
tion is  not  dependent  on  citizenship.  Connor 
V.  Vicksburg  &  M.  R.  Co.  36  Fed.  273, 

1 :  331 

375.  Where  jurisdiction  of  a  circuit  court 
of  the  United  States  is  based  on  the  fact 
that  the  parties  on  one  side  are  citizens  of 
a  different  state  from  any  of  those  on  the 
other,  a  suit  to  enforce  a  lien  or  trust  may 
be  brought  in  the  district  where  the  property 
is  situated  and  where  some  of  the  defend- 
ants claiming  an  equitable  lien  thereon  re- 
side, although  neither  the  plaintiffs  nor 
the  defendnnt  who  owns  the  property  reside 
in  that  district.  Langdon  v.  Central  R.  & 
Bkg.  Co.  37  Fed.  449.  2:  120 

376.  A  Federal  court  cannot,  by  attach- 
ment of  property  within  the  district  where 
suit  is  brou'iht.  acquire  jurisdiction  to  ren- 
der judgment  against  such  property,  where 
the  owner  is  not  a  resident  of  the  district, 
and  is  not  legally  found  and  served  therein 
so  as  to  authorize  a  personal  judgment. 
This  rule  is  not  changed  by  the  act  of  Con- 
gress of  March  3.  1887.  Harland  v.  United 
Lines  Teleg.  Co.  40  Fed.  308,  6:  252 

377.  A  circuit  court  of  the  United  States 
in  Tjouisiana  has  no  jurisdiction  over  prop- 
erty in  Texas  such  as  confers  upon  it  power 
to  appoint  a  r(Hfiver  of  a  railroad  in  Texas 
which  is  the  property  of  a  corporation  cre- 
ated by  Congress.  Texas  &  P.  R.  Co.  v. 
Gay,  86  Tex.  571,  26  S.  W.  .599,  25:  52 
Foreign  corporations. 

378.  A  foreign  corporation  becomes  "an 
inhabitant"  of  a  district  in  which  it  is  sued, 
within  the  meaning  of  the  judiciary  act  of 
1888,  §  1,  by  engaging  in  business  tlvere  ac- 
cording to  the  laws  of  the  state.  Gilbert 
V.  New  Zealand  Ins.  Co.  49  Fed.  884, 

15:  125 

379.  A  foreign  corporation  waives  any  ob- 
jection to  being  sued  within  a  certain  dis- 
trict in  which  it  carries  on  business,  by  ap- 
pointing an  attorney  with  power  to  receive 
service  of  process  in  any  suit  against  it.    Id. 

380.  The  fact  that  a  railroad  company 
keeps  an  office  and  agent  in  a  Federal  judi- 
cial district  outside  of  the  state  which  char- 
tered it.  and  in  which  arc  its  road  and  chief 
oflice,    will    not    make   it    an    inhabitant   of 


such  district,  so  as  to  give  the  Federal  courts 
therein  jurisdiction  of  actions  against  it, 
in  which  jurisdiction  is  not  founded  only  on 
the  fact  of  diverse  citizenship.  Connor  v. 
Vicksburg  &  M.  R.  Co.  36  Fed.  273,  1:331 
381.  A  suit  for  the  appointment  of  a  re- 
ceiver of  a  railroad  which  extends  into  two 
Federal  jurisdictions  within  the  same  stattf, 
if  the  required  diversity  of  citizenship  exists, 
may  be  brought  in  either  district,  whether 
the  principal  office  of  the  railroad  company 
is  in  that  district  or  not.  East  Tennessee, 
V.  &  G.  R.  Co.  V.  Atlanta  &  F.  R.  Co.  49 
Fell.  608.  15:  109 


IV.  Conflict  of  Authority;  Relation  of  State 
to  Federal. 

a.  Exclusiveness   of   Jurisdiction   First    Ac- 
quired. 

Offenses  against  Both  State  and  Municipal 
Governments,  see  Criminal  Law,  179- 
184. 

Stay  of  Later  Action,  see  Dismissal  or  Dis- 
continuance, 8. 

For  Editorial  Notes,  see  infra,  VI.  §§  1,  14, 
15. 

382.  The  court  which  first  acquires  juris- 
diction of  specific  property  by  the  issue  and 
service  of  process  in  a  suit  to  enforce  a  lien 
upon  it,  in  which  it  may  be  necessary  to 
take  possession  or  control  of  it,  retains  ju- 
risdiction until  the  end,  free  from  the  inter- 
ference of  any  court  of  co-ordinate  jurisdic- 
tion. Williams  v.  Neely,  67  C.  C.  A.  171,  134 
Fed.  1,  69:  232 

383.  Where  different  courts  may  enter- 
tain jurisdiction  of  the  same  subject,  the 
court  which  first  obtains  jurisdiction  will, 
with  some  well-recognized  exceptions,  re- 
tain it  to  the  end  of  the  controversy,  either 
to  the  entire  exclusion  of  the  other,  or  to  the 
exclusion  so  far  as  to  render  the  latter'i?  de- 
cision subordinate  to  that  of  the  court  first 
obtaining  jurisdiction;  and  it  is  immaterial 
which  court  renders  the  first  judgment  or  de- 
cree.   Sharon  v.  Terry,  ,36  Fed.  337,        1 :  572 

384.  The  exceptions  to  the  rule  that  prior- 
ity of  jurisdiction  controls  priority  of  deci- 
sion are,  first,  where  the  same  plaintiff  has 
asked,  in  different  suits,  a  determination  of 
the  same  matter;  and,  second,  where  the 
cases  are  upon  contracts  or  obligations  which 
from  their  nature  are  merged  in  the  judg- 
ment rendered,  the  subject  upon  wliich  the 
first  suit  is  founded  having  thus  ceased  to 
e.xist.  Id. 

385.  The  arrest  at  their  own  instigation, 
for  the  purpos"  of  preventing  a  trial  else- 
where, of  persons  accused  of  crime,  by  a 
magistrate  of  the  county  where  the  commis- 
sion of  the  crime  is  commenced,  and  binding 
them  over  to  await  the  action  of  the  grand 
jury,  will  not  prevent  proceedings  against 
them  in  the  county  whore  the  crime  is  con- 
summated, under  a  statute  providing  that, 
if  the  jurisdiction  of  any  offense  be  in  two 
counties,  the  accused  shall  be  tried  in  the 
countv  in  which  he  is  first  arrested.  Hargis 
v.  Parker,  27  Ky.  L.  Rep.  441,  85  S.  W.  704, 

69:  270 


870 


COURTS.  IV.  b. 


As  between  state  and  Federal  courts. 
Pendency  of  Action  in  One  Court  as  Ground 
for  Abating  Action  in  Other,  see  Abate- 
ment and  Revival,  38,  39. 
See  also  infra,  397-405,  421-425, 
For  Editorial  Notes,  see  infra,  VI.  §  14. 
•  386.  A  state  court  which  has  obtained  ju- 
risdiction of  a  suit  against  a  corporation  can- 
not be  ousted  thereof  by  the  subsequent  ap- 
pointment of  a  receiver  for  the  corporation 
by  a  Federal  court  and  the  removal  of  the 
cause,   based  on  the  fact  of  such  appoint- 
ment, when  the  case  was  not  otherwise  re- 
movable.    Pendleton  v.  Lutz,  78  Miss.  322, 
29  So.  164,  51 :  649 

387.  Where  the  jurisdiction  of  the  circuit 
court  of  the  United  States  has  attached  in 
a  suit  brought  by  a  citizen  of  a  state  other 
than  that  in  which  the  court  is  held,  the 
right  of  the  plaintiff  to  prosecute  his  suit  in 
such  court  to  a  final  determination  there 
cannot  be  arrested,  defeated,  or  impaired  by 
any  subsequent  action  or  proceeding  of  the 
defendant  respecting  the  same  subject-mat- 
ter in  a  state  court.  Sharon  v.  Terry,  36 
Fed.  337,  1:  572 

388.  An  amicable  proceeding  in  a  state 
court  to  which  creditors  of  a  railroad  are 
parties,  with  no  immediate  purpose  to  ask 
for  a  receiver,  and  in  which  no  rule  nisi  to 
show  cause  why  a  receiver  should  not  be  ap- 
pointed has  been  issued,  will  not  prevent  a 
Federal  court  from  taking  jurisdiction  for 
the  appointment  of  a  receiver.  East  Tennes- 
see. V.  &  G.  R.  Co.  V.  Atlanta,  &  F.  R.  Co. 
49  Fed.  608,  15:  109 

389.  The  filing,  by  order  of  a  Federal 
court,  of  a  bill  for  a  receiver,  is  sufficient  to 
give  priority  of  jurisdiction  over  the  prop- 
erty as  against  a  subsequent  garnishment 
under  process  of  a  state  court,  although  this 
was  issued  before  service  upon  the  defendant 
in  a  suit  for  a  receiver,  if  a  receiver  was  ap- 
pointed in  due  time.  Riesner  v.  Gulf,  C.  & 
S.  F.  R.  Co.  89  Tex.  656,  36  S.  W.  53, 

33:  171 

390.  The  appointment  of  a  receiver  by  a 
Federal  court  after  a  judgment  in  a  state 
court  establishing  a  mechanic's  lien  against 
specific  property  and  directing  a  sale  of  it 
to  satisfy  the  demand  will  not  defeat  the 
right  of  the  lien  claimants  to  have  the 
property  sold  on  execution  under  the  judg- 
ment. Rogers  &  B.  Hardware  Co.  v.  Cleve- 
land BWg.  Co.  132  Mo.  442,  34  S.  W.  57, 

31 :  335 

391.  An  action  against  receivers  of  a  rail- 
road company  appointed  by  a  Federal  court, 
for  injuries  caused  by  the  company's  negli- 
gence before  their  appointment,  cannot  be 
maintained  in  a  state  court  without  permis- 
sion of  the  court  which  appointed  them. 
Smith  V.  St.  Louis  &  S.  F.  R.  Co.  151  Mo. 
391,  52  S.  W.  378,  48:  368 

392.  Where  a  controversy  concerning  the 
title  to  government  land  is  still  pending  in 
and  undetermined  by  the  Land  Department 
of  the  United  States,  the  courts  of  a  state 
will  not  interfere.  Frink  v.  Thomas.  20  Or. 
265,  25  Pac.  717,  12:239 


b.  Interference  with  Other  Courts;  Injunc- 
tions. 

On  Habeas  Corpus,  see  Habeas  Corpus,  II. 
For  Editorial  Notes,  see  infra,  VI.  §  14. 

393.  The  Federal  courts  sitting  as  courts 
of  equity  have  the  same  power  to  prevent 
the  enforcement  of  unjust  judgments  at  law 
procured  by  accident  or  mistake  that  they 
have  to  prevent  the  collection  of  those  ob- 
tained by  fraud.  National  Surety  Co.  v. 
Stat«  Bank,  56  C.  C.  A.  657,  120  Fed.  593, 

61:  394 

394.  A  subsequent  suit  involving  rights  in 
the  same  property,  in  a  court  of  co-ordinate 
jurisdiction,  should  not  be  dismissed,  but, 
before  a  seizure  of  the  property  under  it, 
should  be  stayed  until  the  proceedings  in 
the  earlier  suit  are  terminated,  or  ample 
time  for  their  termination  has  elapsed.  Wil- 
liams V.  Neely,  67  C.  C.  A.  171,  134  Fed.  1, 

69:  232 

395.  A  Federal  court  of  equity  may  issue 
an  injunction  to  preserve  in  statu  quo  real 
property,  a  controversy  with  respect  to  the 
title  to  which  is  pending  in  the  Land  De- 
partment. Cosmos  Exploration  Co.  v.  Gray 
Eagle  Oil  Co.  50  C.  C.  A.  79,  112  Fed.  4, 

61:  230 

396.  A  defendant  manufacturer  of  alleged 
infringing  articles  is  not  entitled  to  an  order 
enjoining  the  prosecution  of  suits  previously 
begun  because  such  suits  were  first  begun, 
and  because  comity  demanded  that  applica- 
tion should  be  made  to  the  court  in  which 
such  suits  were  pending.  Kelley  v.  Ypsilanti 
Dress-Stay  Mfg.  Co.  44  Fed.  19,  10:  686 
As  between  state  and  Federal  courts. 

See  also  supra,  386-392;  infra,  421-425,  429; 

Judgment,  111. 
For  Editorial  Notes,  see  infra,  VI.  §  14. 

397.  U.  S.  Rev.  Stat.  §  720,  U.  S.  Comp. 
Stat.  1901,  p.  581,  prohibiting  injunctions  by 
any  court  of  the  United  States  to  stay  pro- 
ceedings in  a  state  court,  does  not  apply 
where  the  Federal  court  has  first  obtained 
jurisdiction  of  the  subject-matter  of  the  pro- 
ceedings and  of  the  parties  in  the  state 
court.  This  section  must  be  construed  in 
connection  with  U.  S.  Rev.  Stat.  §  716,  U. 
S.  Comp.  Stat.  1901,  p.  580.  which  provides 
that  the  Federal  courts  shall  have  power  to 
issue  all  writs  which  may  be  necessary  for 
the  exercise  of  their  respective  jurisdictions, 
and  agreeable  to  the  usages  and  principles 
of  law.     Sharon  v.  Terry,  36  Fed.  337. 

1 :  572 

398.  A  receiver,  although  illegally  ap- 
pointed by  a  state  court  in  excess  of  its 
jurisdiction  to  aid  the  «nforcement  of  its 
own  judgment,  cannot  be  enjoined  from  act- 
ing by  a  United  States  circuit  court,  being 
protected  by  U.  S.  Rev.  Stat.  §  720,  U.  S. 
Comp.  Stat.  1901,  p.  581,  which  provides  that 
the  writ  of  injunction  shall  not  be  granted 
by  any  court  of  the  United  States  to  stay 
proceedings  in  any  court  of  a  state,  except 
in  cases  where  such  injunction  may  be  au- 
thorized by  any  law  relating  to  proceedings 
in  bankruptev.  Phelps  v.  Mutual  Reserve 
Fund  L.  Asso*.  50  C.  C.  A.  339,  112  Fed.  453. 

61:717 


COURTS,  IV.  b. 


871 


399.  An  injunction  by  a  Federal  court  to 
restrain  plaintiff  in  an  unconscionable  judg- 
ment of  a  state  court  from  using  it  to  extort 
money  from  a  defendant  who  ought  not  in 
equity  and  good  conscience  to  pay  it,  is  not 
a  violation  of  U.  S.  Rev.  Stat.  §  720,  U.  S. 
Conip.  Stat.  1901,  p.  581,  prohibiting  Federal 
courts  from  staying  proceedings  of  a  state 
court  or  of  its  officers,  since  such  an  in- 
junction acts  on  the  person  of  the  judgment 
plaintiff,  and  not  upon  the  state  court  or  its 
officers.  National  Surety  Co.  v.  State  Bank, 
56  C.  C.  A.  657,  120  Fed.  503,  61 :  394 

400.  The  national  courts,  sitting  in  equity, 
have  the  same  jurisdiction  and  power  to  re- 
strain judgment  plaintiffs  in  unconscionable 
judgments  of  the  state  courts  from  using 
them  to  extort  money  from  defendants  who 
ought  not  to  pay  them,  that  they  have  to 
enjoin  such  plaintiff's  in  like  judgments  of 
the  Federal  courts.  Id. 

401.  A  Federal  circuit  court,  sitting  in 
equity,  has  jurisdiction  to  enjoin  the  en- 
forcement of  an  unconscionable  judgment  of 
a  state  or  of  a  national  court  for  new  causes, 
such  as  fraud,  accident,  or  mistake,  which 
prevented  the  judgment  defendant  from 
availing  himself  of  a  meritorious  defense 
that  was  not  fairly  presented  to  the  court 
that  rendered  the  judgment.  But  it  has  no 
power  to  take  such  action  on  account  of  er- 
rors or  irregularities  in  the  proceedings  on 
which  the  judgment  or  decree  is  founded, 
or  on  account  of  erroneous  or  illegal  deci- 
sions by  the  court  which  rendered  the  judg- 
ment or  decree.  Id. 

402.  The  existence  of  a  remedy  at  law  in 
the  state  courts  to  prevent  the  enforcement 
of  an  unconscionable  judgment  of  a  state 
court  does  not  deprive  a  Federal  court  hav- 
ing jurisdiction  of  the  parties  by  reason  of 
diverse  citizenship  from  enjoining  the  col- 
lection of  such  judgment,  where  there  is  no 
adequate  remedy  at  law  in  the  Federal 
courts.  Id. 

403.  The  decree  of  a  circuit  court  of  the 
United  States  canceling  a  forged  marriage 
contract  may  be  used  to  stay  the  enforce- 
ment of  judgments  for  property  rights  re- 
covered upon  such  contract  in  a  subsequent 
suit  in  a  state  court.  Sharon  v.  Terry,  36 
Fed.  337,  1 :  572 

404.  A  state  court  of  equity  may  enter- 
tain a  bill  to  set  aside  a  judgment  obtained 
by  fraud  in  a  Federal  court.  Wonderly  v. 
Lafavette  County,  150  Mo.  635,  51  S.  W.  745, 

45:  386 

405.  A  suit  in  a  circuit  court  of  the  Unit- 
ed States  to  foreclose  a  mortgage,  q,nd  an 
unexecuted  decree  of  foreclosure  and  sale, 
in  which  case  the  issue  of  certificates  had 
been  authorized,  do  not  prevent  a  state 
court  from  taking  jurisdiction  of  a  suit  by 
creditors  of  the  mortgagor  who  are  not  par- 
ties to  the  suit  in  the  Federal  court,  but  who 
alleged  in  their  bill  that  the  mortgage  and 
bonds  secured  thereby  are  fraudulent  and 
void  as  well  as  the  issue  of  certificates  and 
the  decree  of  foreclosure,  although  it  may 
be  that  the  relief  sought  cannot  all  be  grant- 
ed. Gav  V.  Brierfield  Coal  &  I.  Co.  94  Ala. 
303,  11  So.  353,  16:  504 


Courts  of  different  states. 
See  also  Contempt,  9. 

406.  A  court  of  one  state  cannot  restrain 
a  citizen  of  that  state  from  the  prosecution 
of  a  suit  in  another  state,  where  the  land  is 
situated,  for  the  foreclosure  of  a  mortgage 
thereon,  on  the  ground  that  the  decision  of 
that  court  may  be  different  from  its  own,  or 
from  the  decision  of  the  United  States  Su- 
preme Court.  Carson  v.  Dunham,  149  Mass. 
52,  20  N.  E.  312,  3:  203 

407.  A  citizen  may  be  restrained  from  pro- 
ceeding in  another  state  by  garnishment  to 
seize  the  wages  of  a  fellow  citizen,  in  eva- 
sion of"  the  laws  of  their  own  state,  by  which 
such  wages  are  exempt.  Moton  v.  Hull,  77 
Tex.  80,  13  S.  W.  849,  8:  722 

408.  The  fact  that  one  defendant  resides 
in  the  state  in  which  actions  against  part- 
ners is  brought  will  not  prevent  an  injunc- 
tion against  it  in  another  state  where  the 
other  partner  and  plaintiffs  reside,  if  the 
plaintiff's  went  out  of  their  own  jurisdiction 
to  evade  its  laws  and  a  judgment  for  them 
would  prejudice  the  rights  of  the  later  part- 
ner. Miller  v.  Gittings,  85  Md.  601,  37  Atl. 
372,  37:  654 

409.  The  right  to  an  injunction  to  restrain 
the  prosecution  of  several  actions  on  a  con- 
tract for  the  recovery  of  different  instal- 
ments, commenced  in  the  court  of  another 
state  for  the  purpose  of  avoiding  a  statute 
of  the  state  of  the  residence  of  the  parties, 
affecting  the  validity  of  the  contract,  is  not 
defeated  by  the  fact  that  complainant  has 
other  legal  defenses  available  in  the  foreign 
jurisdiction.  Sandage  v.  Studebaker  Bros. 
Mfg.  Co.  142  Ind.  148,  41  N.  E.  380,     34:  363 

410.  An  injunction  against  the  prosecution 
of  actions  in  another  state  will  be  granted 
when  the  plaintiffs  have  gone  out  of  their 
own  state  to  sue  a  fellow  citizen,  for  the 
purpose  of  evading  the  laws  of  their  state, 
and  their  actions  are  oppressive  and  unrea- 
sonable, tending  to  embarrass  and  defeat 
justice.  Miller  v.  Gittings,  85  Md.  601,  37 
Atl.  372,  37 :  654 

411.  A  party  to  a  contract  is  entitled  to  an 
injunction  restraining  the  prosecution  of 
several  actions  for  the  recovery  of  different 
instalments  thereunder,  commenced  by  the 
assignee  of  the  other  party  in  the  court  ot  a 
foreign  state  for  the  purpose  of  avoiding  a 
statute  of  the  state  in  which  the  contract 
was  made  and  to  be  performed,  and  in  which 
both  tne  parties  and  such  assignee  reside. 
Sandage  v.  Studebaker  Bros.  Mfg.  Co.  142 
Ind.  148,  41  N.  E.  380,  34:  363 

412.  An  injunction  to  restrain  a  husband 
from  prosecuting  a  suit  for  divorce  in  an- 
other state,  the  jurisdiction  of  which  he  has 
invoked  on  a  false  and  fraudulent  allegation 
of  his  residence  in  that  state,  may  be  issued, 
at  the  suit  of  the  wife,  by  a  court  of  the 
state  in  which  the  parties  were  married  and 
in  which  the  wife  is  domiciled.  Kempson  v. 
Kempson  (N.  J.  Err.  &  App.)  63  N.  J.  Eq. 
783,  52  Atl.  360,  58:  484 
Different  courts  of  same  state. 

413.  Land  and  movables  claimed  as  home- 
stead having  been  seized  in  a  justice-of-the- 
peace  court,  and  an  injunction  sued  out  in 


872 


COURTS,  IV.  c.  d,  1. 


the  district  court,  the  movables  may  be  In- 
eluded  in  the  injunction,  notwithstanding 
that  the  justice-of-the-peace  court  woula 
have  jurisdiction  as  to  them.  Speyrer  v. 
Miller,  108  La.  204,  32  So.  524,  61:  781 

414.  An  injunction  against  carrying  out 
an  order  of  court  cannot  be  granted  by  an- 
other court  of  similar  jurisdiction,  but  can 
be  granted,  if  at  all.  only  by  the  court  which 
made  the  order.  Vigo  County  Comrs.  v. 
Stout,  136  Ind.  53,  35  N.  E.  683,         22:  398 

415.  The  fact  that  the  application  for  a 
writ  of  habeas  corpus  may  show  that  the 
person  held  in  custody  is  detained  under  a 
void  sentence  of  the  superior  court  would 
not  prevent  the  judge  of  a  city  court  having 
power  to  grant  the  writ  from  taking  juris- 
diction of  the  proceeding.  Simmons  v.  Geor- 
gia Iron  &  Coal  Co.  117  Ga.  305,  43  S.  E.  780, 

61:739 

c.  Property  in  Custody  of  Courts  or  Officers. 
See  also  supra,  386-392,  397-405. 

416.  Property  seized  and  held  under  mesne 
or  final  process  of  either  a  state  or  a  United 
States  court  is  in  the  custody  of  the  law, 
and  within  the  exclusive  jurisdiction  of  the 
court  from  which  the  process  has  issued,  for 
the  purposes  of  the  writ;  and  the  possession 
of  the  officer  having  it  in  custody  cannot  be 
disturbed  by  another  court  of  co-ordinate 
jurisdiction.     Tefft  v.  Sternberg,  40  Fed.  2, 

5:  221 

417.  Leave  of  the  court  must  be  obtained 
in  order  to  enforce  a  judgment  claimed  to 
be  a  prior  or  superior  lien  upon  property 
which  has  been  taken  into  the  custody  and 
control  of  the  court.  Brady  v.  Johnson,  75 
Md.  445,  26  Atl.  49,  20:  737 

418.  A  sheriff''s  custody  of  attached  prop- 
erty cannot  be  disturbed  by  a  court  of  chan- 
cery, and  the  property  transferred  to  the 
custody  of  its  receiver,  in  a  suit  by  the  at- 
tachment defendant,  unless  by  consent  of 
all  parties.  Ford  v.  Judsonia  Mercantile  Co. 
52   Ark.   426,   12   S.   W.   876,  6:  714 

419.  A  sheriff's  right  to  the  possession  of 
property  under  attachment  is  not  lost  by  the 
subsequent  appointment  of  a  receiver.  State 
ex  rel.  Hunt  v.  Chehalis  County  Super.  Ct. 
8  Wash.  210,  35  Pac.  1087,  25:  354 

420.  An  assignment  for  the  benefit  of  cred- 
itors in  North  Dakota  does  not  place  the 
property  of  the  assignor  in  custody  of  law 
so  as  to  prevent  attachment.  Re  Enderlin 
State  Bank,  4  N.  D.  319,  58  N.  W.  514, 

26:  593 
As  between  state  and  Federal  courts. 

421.  The  surplus  proceeds  of  property 
seized  by  the  sheriff  on  foreclosure,  in  a  state 
court,  of  a  chattel  mortgage  securing  a  debt 
much  less  than  the  value  of  the  property, 
are  in  the  custody  of  the  state  court;  and  a 
Federal  court  will  not,  on  application  of 
other  creditors,  interfere  with  their  disposi- 
tion by  an  injunction  and  an  appointment  of 
a  receiver.     TefTt  v.  Sternberg,  40  Fed.  2, 

5:  221 

422.  The  foreclosure  of  a  chattel  mort- 
gage, under  the  Georgia  statute,  by  an  exe- 
cution issued  by  the  clerk  of  the  superior 


court,  to  which  defenses  may  be  raised  by 
an  affidavit  of  illegality,  is  a  "proceeding  in 
a  state  court,"  within  the  rule  which  pro- 
hibits interference  with  such  proceedings  by 
the  courts  of  the  United  States.  Id. 

423.  The  appointment  by  a  state  court  of 
a  receiver  of  a  corporation  on  a  petition  of 
its  dissolution,  with  due  notice  to  the  attor- 
ney general,  brings  the  property  of  the  cor- 
poration into  the  custody  and  exclusive  ju- 
risdiction of  the  court  from  the  time  of  such 
appointment,  which  cannot  be  defeated  by 
seizure  under  subsequent  process  of  a  Fed- 
eral court  in  admiralty,  although  the  latter 
is  executed  before  the  receiver  has  filed  his 
bond  or  taken  actual  manual  possession  of 
the  property.  Re  Schuyer's  Steam  Towboat 
Co.  136  N.  Y.  169,  32  N.  E.  623,  20:  391 

424.  A  restraining  order  by  a  state  court, 
enjoining  officers  of  a  railroad  from  permit- 
ming  the  use  of  its  fimds  for  other  than  the 
purposes  of  the  corporation,  is  in  no  sense 
a  seizure  of  the  property  which  will  preclude 
jurisdiction  of  a  Federal  court  to  appoint  a 
receiver.  East  Tennes.see,  V.  &  G.  R.  Co.  v. 
Atlanta  &  F.  R.  Co.  49  Fed.  608,  15:  109 

425.  The  jurisdiction  of  the  Supreme 
Court  of  the  United  States  on  a  writ  of  er- 
ror to  a  state  court,  where  a  stay  bond  is 
executed  after  levy  on  a  judgment,  is  not 
interfered  with  by  an  action  the  purpose  of 
which  is  in  effect  to  vacate  the  levy.  Central 
Trust  Co.  v.  Moran,  56  Minn.  188,  57  N.  W. 
471,  29:  212 

d.  When  State  or  Federal  Jurisdiction  Ex- 
clusive ;    Limitations   Upon. 

1.  In  General. 

Conflict  Between  Jurisdiction  of  Consul  and 
of  State  Court,  see  Diplomatic  and  Con- 
sular Officers. 

As  to  Usury,  Estoppel  as  to,  see  Estoppel, 
258. 

See  also  Carriers,  1110. 

For  Editorial  Notes,  see  infra,  VI.  §§  14,  15. 

426.  Congress  may  give  the  Federal  courts 
exclusive  jurisdiction  when  a  right  arises  un- 
der a  law  of  the  United  States.  Copp  v. 
Louisville  &  N.  R.  Co.  43  La.  Ann.  511.  9 
So.  441,  12:  725 

427.  A  state  cannot,  by  its  legislature, 
confer  a  substantial  right  or  remedy  in  the 
way  of  a  suit  inter  partes,  upon  its  own  citi- 
zens, that  will  not  be  available  to  the  citi- 
zens of  the  other  states;  nor  can  it,  by  any 
device,  restrict  such  right  cy  remedy  thus 
made  available,  to  enforcement  in  its  own 
courts,  the  conditions  of  citizenship  being 
such  that  they  would  otherwise  be  enforce- 
able in  the  Federal  courts.  Williams  v. 
Crabb,  54  C.  C.  A.  213,  117  Fed.   193. 

.59:  425 

428.  A  bill  may  be  maintained  in  a  Fed- 
eral court  to  subject  land  of  a  decedent 
which  has  passed  into  the  hands  of  a  volun- 
tary transferee  to  the  payment  of  the  de- 
cedent's statutory  liability  as  a  corporate 
stockholder,  'where  there  are  no  other  liabil- 
ities or  claims  against  the  estate,  and  the 
estate  possesses  no  other  property,  so  that 


COURTS,  IV.  d,  1. 


878 


there  would  be  no  interference  with  the  local 
probate  law.  Kirtley  v.  Holmes,  46  C.  C.  A. 
102,  107  Fed.  1,  52:  738 

429.  That  a  corporation  has  acquired  its 
corporate  name  from  the  state  will  not  pre- 
vent a  Federal  court  from  enjoining  it  from 
using  the  name  at  the  suit  of  a  corporation 
of  another  state,  if  the  statute  permitted 
the  corporators  to  select  the  name,  and  it 
was  chosen  fraudulently  for  the  purpose  of 
appropriating  the  good  will  of  the  other  cor- 
poration. Peck  Bros.  &  Co.  v.  Peck  Bros  Co. 
51  C.  C.  A.  251,  113  Fed.  2J)1,  62:  81 
Matters  as  to  patents. 

For  Editorial  Notes,  see  infra,  \T.  §  15. 

430.  In  an  action  by  one  partner,  who  had 
paid  a  judgment  rendered  against  him  in 
an  action  for  the  infringement  of  a  patent, 
for  contribution  from  his  copartner,  the  va- 
lidity of  the  patent  or  its  infringement  not 
being  involved,  the  state  court  has  jurisdic- 
tion. Smith  V.  Ayrault,  71  Mich.  475,  39 
N.  W.  724,  1:  311 

431.  The  title  to  letters  patent  does  not 
necessarily  involve  the  validity  of  infringe- 
ment of  the  patent,  so  as  to  defeat  the  ju- 
risdiction of  a  state  court.  Shoemaker  v. 
South  Bend  Spark  Arrester  Co.  135  Ind.  471, 
35  N.  E.  280,  22:  332 
Matters  as  to  public  land. 

432.  State  courts  have  jurisdiction  of  an 
action  of  trespass  quare  cinusum  fregit  in 
respect  to  land  ceded  by  the  state  to  the 
United  States  and  leased  by  the  latter  to  a 
private  person,  until  Congress  has  made  new 
regulations  touching  the  administration  of 
justice  in  civil  cases  arising  therein.  Barrett 
V.  Palmer,  135  N.  Y.  330,  31  N.  E.  1017, 

17:  720 

433.  The  right  of  state  courts  to  deter- 
mine the  local  law  in  respect  to  riparian 
rights  on  meandered  lakes  under  patents 
from  the  government  is  more  important  than 
the  right  of  Federal  courts  to  construe  such 
patents.  Fuller  v.  Shedd,  161  111.  462,  44  N. 
E.  286,  33:  146 
Matters  affecting  commerce;  anti-trust  act. 

434.  A  state  court  has  no  jurisdiction  of 
an  action  for  damages  against  a  carrier  for 
violation  of  the  Interstate  Commerce  Law, 
as  that  provides  for  redress,  either  by  pro- 
cedure before  the  Commission  or  suit  before 
a  Federal  court.  Copp  v.  Louisville  &  N.  R. 
Co.  43  La.  Ann.  511,  !)  So.  441,  12:  725 

435.  State  courts  have  not  lost  jurisdic- 
tion of  the  subject-matter  of  actions  against 
carriers  in  respect  to  interstate  shipments, 
by  reason  of  the  fact  that  Congress  has  leg- 
islated upon  the  subject.  St.  Joseph -&  G.  I. 
R.  Co.  V.  Palmer,  38  Neb.  463,  56  N.  W.  958, 

22:  335 

436.  The  provisions  of  the  anti-trust  act 
of  Congress  of  July  2,  1890,  known  as  the 
Sherman  act,  can  be  enforced  only  by  the 
courts  and  in  the  manner  provided  by  it,  and 
not  by  the  state  courts  in  the  exercise  of 
their  equitable  jurisdiction.  Post  v.  South- 
em  R.  Co.  103  tenn.  184,  52  S.  W.  301, 

55:  481 

437.  A  city  charter  which  provides  for  ap- 
peals from  the  allowance  or  rejection  of 
claims  against  that  city  to  a  certain  state 


court,  and  prohibits  the  payment  of  such 
claims  while  such  appeals  are  there  pending, 
does  not  restrict  the  jurisdiction  of  the  Fed- 
eral courts  over  claims  of  citizens  of  other 
states,  or  the  power  of  those  courts  to  en- 
force their  judgments  upon  such  claims;  and 
actions  by  original  process  in  the  Federal 
courts  may  be  maintained  in  controversies 
over  such  claims  without  presenting  them 
to  the  city  council.  Re  Barber  Asphalt  Pav. 
Co.  132  Fed.  945,  67:  761 

Admiralty  and  maritime  cases. 

438.  No  principle  of  comity  requires  state 
courts  to  refuse  to  take  cognizance  of  an 
action  on  an  undertaking  to  secure  a  stay 
of  proceedings  on  appeal  in  an  admiralty 
case.  Braithwaite  v.  Jordan,  5  N.  D.  196, 
65  N.  W.  701,  31:238 

439.  An  action  on  an  undertaking  to  se- 
cure a  stay  of  proceedings  on  appeal  in  an 
admiralty  case  is  not  an  integral  part  of  the 
original  case,  or  a  proceeding  to  enforce  the 
judgment  therein,  or  within  the  exclusive 
jurisdiction  of  admiralty,  but  is  within  the 
jurisdiction  of  a  state  court.  Id. 

440.  A  mechanic's  lien  may  be  enforced  in 
a  state  court  for  work  and  materials  fur- 
nished in  equipping  a  new  vessel,  where  such 
lien  is  given  by  a  state  law,  whei  e  they  were 
furnished  at  the  instance,  and  request  of  tlic 
master  and  managing  owner  of  the  vessel. 
Baizley  v.  The  Odorilla,  121  Pa.  231,  15  Atl. 
521,  1:  505 

441.  The  limitation  of  liability  of  the 
owners  of  vessels,  for  maritime  losses,  bv 
U.  S.  Rev.  Stat.  1878,  §  4283,  l'.  S.  Comp. 
Stat.  1901,  p.  2943,  may  be  adminisiercd  in 
an  action  at  law  against  tliem  in  a  state 
court  to  recover  for  death  caiisiHl  by  a  col- 
lision. Loughin  v.  McCaulley,  186  Pa.  517. 
40  Atl.  1020,  48:  .33 
Matters  as  to  Indians;  Indian  reservations; 

Indian  Territory. 
See  also  supra,  42;  infra,  451-455. 

-122.  It  seems  that  an  Indian  may  resort 
to  state  courts  for  redress  of  wrongs,  under 
a  constitutional  provision  guaranteeing  tx) 
every  person  the  right  of  redress  for  injuries 
done  to  him  in  his  person,  property,  or  repu- 
tation. Missouri  P.  R.  Co.  v.  Cullers,  81 
Tex.  382,  17  S.  W.  19,  13:  542 

443.  An  Indian  may  lawfully  own  person- 
al property  and  assign  a  claim  for  damages 
for  its  wrongful  destruction,  so  as  to  en- 
title the  assignee  to  maintain  a  suit  therefor 
in  the  Texas  courts.  Id. 

444.  An  action  against  an  Indian  belong- 
ing to  a  tribe  and  a  particular  reservation, 
brought  on  a  contract  in  favor  of  a  white 
man,  is  within  the  jurisdiction  of  a  state 
court,  in  the  absence  of  any  Federal  statute 
or  treaty  to  the  contrary.  Stacy  v.  Labelle, 
99  Wis.  520,  75  N.  W.  60,  41:  419 

445.  For  conversion  of  property  in  the  In- 
dian Territory  occupied  by  the  Cherokee  Na- 
tion, the  nearest  I'nited  States  court  has 
jurisdiction  to  the  exclusion  of  that  of  a 
state  court.  Holderman  v.  Pond,  45  Kan. 
410,  25  Pac.  872,  11:  542 
Over  toreign  consul. 

446.  A  state  court  has  no  jurisdiction  in  a 
civil  case  over  the  person  of  a  consul  genera] 


874 


COURTS,  IV.  d.  2— V.  b. 


of  a  foreign  country  for  the  United  States, 
who  resides  in  the  state.  Wilcox  v.  Luco, 
118  Cal.  639,  45  Pac.  676,  50  Pac.  758, 

45:  579 

2.  Criminal   Proceedings. 

Offenses  against  Both  Federal  and  State 
Governments,  see  Criminal  Law,  177, 
178. 

447.  Neither  a  state  nor  any  tribunal  or 
officer  thereof  has  any  color  or  right  to  com- 
plain of  the  efforts  made  by  the  United 
States  courts  to  protect  suitors  therein  in 
their  right  to  prosecute  suits  and  actions 
before  such  courts.  United  States  v.  Lan- 
caster, 14  Fed.  885,  10:  317 

448.  That  a  perjury  committed  in  a  state 
court  occurs  while  such  court  is  holding  a 
session,  by  permission  of  the  state  law  and 
of  the  Federal  officials,  in  a  building  of 
which  the  United  States  has  exclusive  juris- 
diction, does  not  deprive  the  state  courts  of 
jurisdiction  to  punish  the  perjurer.  Exum 
V.  State,  90  Tenn.  501,  17  S.  W.  107,    15:  381 

449.  The  provision  as  to  crimes  in  U.  S. 
Rev.  Stat.  §  5328,  U.  S.  Comp.  Stat.  1901, 
p.  3622,  that  nothing  in  title  70  shall  impair 
the  jurisdiction  of* the  states,  exempts  the 
cases  specified  in  that  title,  which  are  also 
offenses  under  the  laws  of  the  several  states, 
from  the  operation  of  U.  S.  Rev.  Stat.  §  711, 
U.  S.  Comp.  Stat.  1901,  p.  577,  which  de- 
clares that  jurisdiction  by  Federal  courts  in 
respect  to  crimes  and  offenses  shall  be  ex- 
clusive of-  the  courts  of  the  states.  People 
v.  Welch,  141  N.  Y.  266,  36  N.  E.  328, 

24:  117 

450.  A  Federal  court  has  no  jurisdiction  of 
a  suit  to  enjoin  a  state  food  commissioner 
from  proceeding  to  enforce  a  pure-food  stat- 
ute of  the  state  by  criminal  prosecutions, 
as  he  is  required  to  do  by  the  statute,  on  the 
ground  that  he  has  erroneously  construed 
the  statute  to  include  matters  not  within  it. 
Arbuckle  v.  P.lackbum,  51  C.  C.  A.  122,  113 
Fed.  616,  65:  864 
Of  Indians;  on  Indian  reservation. 

See  also  supra,  442-445. 

451.  Crimes  committed  on  an  Indian  reser- 
vation by  persons  other  than  tribal  Indians 
are  within  the  jurisdiction  of  state  courts, 
unless  otherwise  provided  by  treaty  with  an 
Indian  tribe  or  by  the  act  admitting  the 
state  into  the  Union,  and  except  so  far  as 
restricted  by  the  authority  of  Congress  to 
regulate  commerce  with  Indian  tribes. 
State  V.  Campbell,  53  Minn.  354,  55  N.  W. 
553,  21:  169 

452.  Indians  while  preserving  their  tribal 
relations  and  residing  on  a  reservation  set 
apart  for  them  by  the  United  States  are  not 
subject  to  the  criminal  laws  of  a  state.      Id. 

453.  The  fact  that  an  Indian  belonging  to 
the  tribe  is  not  subject  to  the  criminal  laws 
of  a  state  for  a  crime  of  adultery  committed 
on  the  reservation  does  not  exempt  a  half- 
breed  woman,  with  whom  the  offense  was 
committed,  who  did  not  sustain  any  tribal 
relation.  Id. 

454.  The  half-breed  daughter  of  a  white 


father  and  an  Indian  mother,  who  does  not 
sustain  any  tribal  relations,  but  has  lived 
with  her  white  husband  on  a  farm  where  she 
was  raised,  does  not  become  an  Indian  so  as 
to  be  exempt  from  the  criminal  laws  of  the 
state  by  abandoning  her  husband  and  going 
upon  an  Indian  reservation,  and  by  the  fact 
that  she  has  drawn  one  annuity  as  an  Indian 
from  the  United  States.  Id. 

455.  A  tribal  Indian  killing  a  member  of 
the  same  tribe  while  off  the  reservation  is 
subject  to  be  tried  for  the  crime  in  the 
courts  and  according  to  the  laws  of  the  state 
within  whose  jurisdiction  the  crime  was 
committed,  since  the  passage  of  the  act  of 
Congress  of  March  3,  1885.  Pablo  v.  Peo- 
ple, 23  Colo.  134,  46  Pac.  636,  37:  636 
On  military  reservation. 

456.  A  district  court  in  Montana  has  juris- 
diction to  try  a  person  charged  with  murder 
committed  upon  a  military  reservation. 
Burgess  v.  Territory,  8  Mont.  57,  19  Pac.  558, 

1:  808 

457.  The  jurisdiction  of  the  United  States 
over  a  military  reservation  in  a  territory  is 
not  exclusive,  and  does  not  deprive  the  terri- 
torial laws  and  courts  of  the  jurisdiction 
conferred  on  them  by  law.  Id. 


V.  Rules  of  Decision, 
a.  In  General. 

As  to  Abstract  Questions,  see  Action  or  Suit, 

11,  12. 
As  to  Applicability  of  Common  Law,  see 

Common  Law,  12. 
Authority   to    Declare   Contract    Void,    see 

Contracts,  364. 
Following  Decision  of  Political  Convention, 

see  Elections,  288-290. 
Following  Decision  of  Ecclesiastical  Court, 

see  Religious  Societies,  IX. 
For  Editorial  Notes,  see  infra,  VI.  §  16. 

458.  A  will  will  not  be  construed  by  the 
courts  before  necessity  of  action  under  it 
arises.    May  v.  May,  5  App.  D.  C.  552, 

41:  767 

b.  Stare    Decisis;    Previous     Decisions    of 
Same  Court. 


Binding  Nature  of  Common  Law,  see  Com- 
mon Law,  13. 
See  also  Judgment,  237. 

459.  The  decision  of  a  judge  is  not  law 
for  succeeding  cases;  it  is  only  evidence  of 
the  law.  Presbyterian  General  Assemblv  v. 
Guthrie,  86  Va.  125,  10  S.  E.  318,       6  :^321 

460.  The  public  policy  of  a  state  or  nation 
must  be  determined  by  its  Constitution, 
laws,  and  judicial  decisions,  not  by  the  vary- 
ing opmions  of  laymen,  lawyers,  or  judges 
as  to  the  demands  of  the  interest  of  the  pub- 
lic. Hartford  F.  Ins.  Co.  v.  Chicago,  M.  & 
St.  P.  R.  Co.  70  Fed.  201,  36  U.  S.  App.  152, 
17  C.  C.  A.  62,  30:  193 

461.  A  construction  by  officers  having  the 
enforcement  of  the  tax  laws  of  Ohio,  since 


COURTS,  V.  b. 


876 


the  enactment  thereof,  to  the  effect  that,  un- 
der such  laws,  shares  held  by  residents  of 
Ohio  of  stock  of  foreign  railroad  corpora- 
tions having  property  in  Ohio  on  which  they 
pay  taxes,  and  of  consolidated  railroad  com- 
panies, are  not  taxable  in  Ohio,  does  not  bind 
the  successors  of  such  officers,  or  the  state, 
in  the  proper  assessment  and  collection  of 
taxes  upon  such  shares.  Lee  v.  Sturges,  46 
Ohio  St.  153,  19  N.  E.  560,  2:  556 

462.  The  question  respecting  the  proper 
relation  of  character  evidence  to  the  other 
evidence  in  the  case  does  not  involve  any  of 
those  essentially  important  rights  and  in- 
terests favored  by  the  doctrine  of  prece- 
dents. Daniels  v.  State,  2  Penn.  (Del.)  586, 
48  Atl.  196,  54:  286 

463.  ihe  rule  of  stare  decisis ^does  not 
bind  the  court  in  deciding  the  constitution- 
ality of  a  statute,  where  no  property  right 
or  contract  between  the  parties  is  involved. 
Denny  v.  State  ex  rel.  Easier,  144  Ind.  503, 
42  N.  E.  929,  31 :  726 

464.  The  court  will  not  consider  itself 
bound  by  a  prior  decision  upon  the  question 
of  the  constitutionality  of  a  law  regulating 
the  liquor  traffic,  no  rule  of  property  being 
involved.  State  ex  rel.  George  v.  Aiken,  42 
S.  C.  222,  20  S.  E.  221,  26:  345 

465.  The  doctrine  of  stare  decisis  cannot 
be  invoked  in  favor  of  decisions  on  former 
statutes  which  were  merely  similar  to,  but 
not  identical  with,  one  under  review.  Adams 
v.  Yazoo  &  M.  V.  R.  Co.  77  Miss.  194,  24  So. 
200,  317,  28  So.  956,  60:  33 
Obiter  dicta. 

466.  Propositions  assumed  by  the  court  to 
be  within  the  case,  and  questions  presented, 
considered,  and  deliberately  decided  by  the 
court,  leading  up  to  the  final  conclusion 
reached,  are  not  obiter  dicta,  but,  if  dicta 
at  all,  are  judicial  dicta,  and  are  as  effect- 
ually passed  upon  as  the  ultimate  questions 
solved.  Brown  v.  Chicago  &  N.  W.  R.  Co. 
102  Wis.  137,  77  N.  W.  748,  78  N.  W.  771, 

44:  579 

467.  General  expressions  in  every  opinion 
are  to  be  taken  in  connection  with  the 
case  in  which  those  expressions  are  used, 
and,  if  they  go  beyond  the  case,  ought  not 
to  control  the  judgment  in  a  subsequent  suit 
when  the  ver}'  point  is  presented  for  deci- 
sion. Wadsworth  v.  Union  P.  R.  Co.  18  Colo. 
600,  33  Pac.  515.  23:  812 
Erroneous  decisions. 

See  also  infra,  476,  478. 

468.  The  rule  of  stare  decisis  is  not  inflex- 
ible, and  will  not  be  applied  to  uphold  a  de- 
cision which  is  clearly  erroneous  or  contra- 
ry to  well-established  legal  principles,  or  a 
decision  which  is  not  necessarily  involved  in 
the  case.  Kimball  v.  Grantsville  City,  19 
Utah,  368,  57  Pac.  1,  45:  628 

469.  A  decision  which  misconceives  and 
wrongly  declares  th**  law,  whether  it  is  an 
ancient  or  a  recent  one,  is  subject  to  be  over- 
ruled. Wilson  V.  Leary,  120  N.  C.  90,  26  S. 
E.  630,  38:  240 

470.  Departure  from  decisions  previously 
made  is  required  by  the  policy  of  the  law 
where  adherence  to  them  would  be  produc- 
tive of  more  evil  than  the  departure  there' 


from  and  the  establishment  of  a  better  and 
sounder  rule.  Evansville  v.  Senhenn,  151 
Ind.  42,  47  N.  E.  634,  41 :  728 

471.  It  is  the  duty  of  the  court  to  overrule 
a  decision  or  series  of  decisions,  if  clearly 
incorrect  either  through  a  mistaken  concep- 
tion of  the  law  or  through  misapplication  of 
the  law  to  the  facts,  if  no  injurious  results 
would  follow  from  their  overthrow.  Jas- 
per County  V.  Allman,  142  Ind.  573,  42  N.  E. 
206,  39:  58 
Effect  of  overruling  of  decision. 

472.  A  decision  by  the  highest  court  of  the 
state  holding  a  given  statute  constitutional 
will  not,  after  a  subsequent  decision  of  the 
same  court  overruling  the  former  decision, 
control  contracts  entered  into  before  the  lat- 
ter decision.  Storrie  v.  Cortes,  90  Tex.  283, 
38  S.  W.  154,  35:  666 
Decision  of  military  tribunal. 

473.  A  decision  by  a  tribunal  created  by  a 
military  governor  wiiile  the  state  was  in  a 
subjugated  condition  is  not  binding  in  a 
subsequent  case  involving  similar  questions. 
Lusby  V.  Kansas  City,  M.  &  B.  R;  Co.  73 
Miss.  360,  19  So.  239,  36:  510 
Commercial  law. 

474.  The  so-called  commercial  law  derives 
all  its  force  from  its  adoption  by  the  state 
as  part  of  the  common  law;  and  a  decision 
on  the  commercial  law  of  a  state  stands  up- 
on the  same  basis  as  a  decision  upon  any 
other  branch  of  the  common  law.  Forepaugn 
v.  Delaware,  L.  &  W.  R.  Co.  128  Pa.  217.  18 
Atl.  503,  5:  508 

475.  There  is  no  distinction  between  the 
binding  effect  of  decisions  on  commercial  law 
and  on  statutes.  Id. 
Rule  of  property. 

476.  A  decision  by  a  state  court  as  to  the 
construction  of  an  act  of  Congress  governing 
mining  claims  should  not  be  followed  if  it 
is  wrong,  under  the  doctrine  of  stare  decisis, 
or  on  the  ground  that  it  has  become  a  settled 
rule  of  property,  when  the  construction  of 
the  statute  has  not  been  settled  by  the  Su- 
preme Court  of  the  United  States.  Calhoun 
Gold  Min.  Co.  v.  Ajax  Gold  Min.  Co.  27  Colo. 
1,  59  Pac.  607,  50:  209 

477.  ihe  doctrine  of  stare  decisis  applies 
with  peculiar  force  to  decisions  respecting 
real  property,  vested  rights,  and  those  mat- 
ters of  general  commercial  importance  which 
tend  to  influence  future  business  transac- 
tions; but  questions  where  the  decisions  do 
not  constitute  a  business  rule — as  where  per- 
sonal liberty  is  involved — will  be  met  by 
cotsiderations  which  favor  certainty  and 
stability  in  the  law.  Daniels  v.  State,  2 
Penn.   (Del.)  586,  48  Atl.  196,  54:  286 

478.  Where  a  question  has  been  decided  by 
the  supreme  court  of  Oregon,  and  parties, 
relying  upon  the  decision  as  a  settled  rule 
of  law,  have  transacted  important  affairs 
which  would  be  seriously  affected  by  a 
change  of  the  rule,  the  court  will  adhere  to 
it  in  subsequent  cases,  however  it  might  be 
inclined  to  hold  if  the  question  were  res  in- 
tegra.  Poulsen  v.  Portland,  16  Or.  450,  19 
Pac.  450,  1 :  673 
Criminal  matters. 

479.  The  decisions  of  the  court   of  oyer 


876 


COURTS,  V.  c. 


and  terminer  and  the  court  of  general  ses- 
sions were  not  reviewable  by  the  supreme 
court  prior  to  the  adoption  of  the  Delaware 
Constitution  of  1897,  and  they  will  not  be 
departed  from  by  the  supreme  court  unless 
it  be  satisfied  that  they  are  clearly  erron- 
eous. Daniels  v.  State,  2  Penn.  (Del.)  586, 
48  Atl.  196,  54:  2b6 

c  Construction    and     Constitutionality     of 
Statutes  or  Ordinances. 

Following    Decisions    of    Courts    of    Other 

Stiite  or  Country,  as  to,  see  infra,  V.  e. 
Federal  Courts  Following  State  Decisions  as 

to,  see  infra,  529-538. 
Adopting  Construction  of  Statute  by  Court 

of  other  State,  see  Conflict  of  Laws,  102, 

103. 
Presumption  and  Burden  of  Proof  as  to,  see 

Evidence,  II.  a. 
Validity  of  Statutes  Generally,  see  Statutes, 

I.  c. 
Construction     of    Statutes    Generally,     see 

Statutes,  n. 
See  also  supra,  463^65,  472;  infra,  513-515; 

Constitutional  Law,  272;  Statutes,  117, 

118. 

480.  Mere  difference  of  opinion  between 
the  courts  and  the  lawmaking  power  is  not 
sufficient  ground  for  holding  a  statute  un- 
constitutional. Chicago,  B.  &  Q.  R.  Co.  v. 
State  ex  rel.  Omaha,  47  Neb.  549,  66  N.  W. 
624,  41:481 

481.  It  is  settled  doctrine  that  the  courts 
will  not  declare  an  act  of  the  legislature 
unconstitutional  unless  it  is  manifestly  so. 
Rosenbloom  v.  State,  64  Neb.  342,  89  N.  W. 
1053,  57:  922 

482.  Courts  must  uphold  a  statute,  unless 
it  is  so  plainly  and  palpably  in  conflict  with 
the  Constitution  as  to  leave  no  doubt  or 
hesitation  in  the  judicial  mind  as  to  its  in- 
validity. Burlington,  C.  R.  &  N.  R.  Co.  v. 
Dey,  82  Iowa,  312,  48  N.  W.  98,  12:  436 

483.  A  court  cannot  declare  a  statute  void 
or  arrest  its  execution,  unless  it  is  in  viola- 
tion of  some  constitutional  restriction. 
Kimball  v.  Grantsville  City,  19  Utah.  368, 
57  Pac.  1,  45:  628 

484.  A  reasonable  doubt  as  to  the  con- 
stitutionality of  a  statute  must  be  resolved 
by  the  court  in  favor  of  its  validity.  Stata 
V.  Foster,  22  R.  L  163,  46  Atl.  833.      50:  3.39 

485.  A  statute  will  not  be  declared  void 
unless  its  nullity  and  invalidity  are  beyond 
reasonable  doubt.  State  v.  Camp  Sing,  18 
Mont.  128,  44  Pac.  516,  32:  635 

486.  A  statute  will  not  be  declared  void 
by  the  courts  unless  it  is  made  to  appear 
clearly,  palpably,  and  plainly  that  it  violates 
some  constitutional  provision.  State  v. 
Gerhardt,  145  Ind.  439,  44  N.  E.  469,    33:  313 

487.  The  court  will  not  hold  that  an  act 
is  not  within  the  police  power  of  the  state 
unless  it  is  so  clearly  without  as  to  remove 
everv  reasonable  doubt  that  it  is.  Holden  v. 
Hardy.  14  ITtah,  71,  46  Pac.  756,  37:  103 
[AfFd  bv  the  Supreme  Court  of  the  United 
States  in  169  U.  S.  366,  42  L.  ed.  780,  18  Sup. 
Ct.   Rep.   383.] 


488.  The  constitutionality  of  a  statute 
must  be  upheld  if  there  is  reasonable  doubt 
as  to  its  violation  of  the  Constitution. 
State  ex  rel.  Andreu  v.  Canfield,  40  Fla.  36. 
23  So.  591,  42:72 

489.  An  act  of  the  legislature  will  not  be 
declared  unconstitutional  and  void  on  the 
presumption  that  it  will  be  used  as  a  basis 
to  assert  an  unjust  or  illegal  claim  to  the 
property  of  the  state.  Marsh  v.  Stonebrak- 
er  (Xeb.)  98  N.  W.  699,  65:  607 

490.  The  constitutionality  of  a  pure-food 
law  is  to  be  determined  by  its  language  and 
purpose,  and  not  by  the'  alleged  wrongful 
institution  of  prosecutions  under  it  by  those 
charged  with  its  enforcement  against  those 
guiltless  of  a  violation  of  its  provisions.  Ar- 
buckle  V.  Blackburn,  51  C.  C.  A.  122,  113  Fed. 
616,  65:  864 

491.  The  courts  will  not  declare  invalid 
an  enactment  of  the  legislature  delegating 
the  power  of  eminent  domain,  unless  it  is 
clearly  so.  Ulmer  v.  Lime  Rock  R.  Co.  98 
Me.  579,  57  Atl.  1001,  66:  387 

492.  A  judgment  that  a  statute  is  inval- 
id cannot  be  based  on  an  admission.  State 
ex  rel.  McCaffery  v.  Aloe,  152  Mo.  466,  54  S. 
W.  494,  47 :  393 

493.  A  casus  omissus  in  a  statute  cannot 
be  supplied  by  a  court  of  law,  for  that  would 
be  to  make  laws.  Re  Election  of  Executive 
Officers,  31  Neb.  262,  47  N.  W.  923,       10:  803 

494.  The  judicial  power  to  interpret  a 
statute  does  not  contemplate  the  power  to 
amend  it  when  it  comes  before  the  court 
for  construction.  Nichols  v.  Mutual  Life 
Ins.  Co.  176  Mo.  355,  75  S.  W.  664,       62:  657 

495.  Where  the  practice  of  the  executive 
in  the  interpretation  of  his  constitutional 
powers  of  vetoing  separate  items  in  school 
appropriation  bills  has  l)een  frequent  and  ac- 
quiesced in  without  objection  for  a  number 
of  years,  it  should  be  very  clearly  shown  to 
be  unconstitutional,  to  justify  the  courts  in 
declaring  against  it.  Com.  ex  rel.  Elkin  v. 
Barnett,  199  Pa.  161,  48  Atl.  976,        55:  882 

496.  The  courts  will  not  construe  language 
so  as  to  invalidate  an  act,  when  it  is  fairly 
susceptible  of  a  construction  consistent  with 
validity,  but  will  give  effect  to  a  legitimate 
legislative  purpose  plainly  indicated,  if  it 
can  reasonably  be  done.  State  v.  McKee,  73 
Conn.  18,  46  Atl.  409,  49:  542 

497.  The  courts  of  one  state  will  adopt  its 
own  methods  of  construction  on  a  constitu- 
tional provision  of  another  state  where  the 
courts  of  the  latter  state  have  not  construed 
it.  Tuttle  V.  National  Bank  of  the  Repub- 
lic, 161  111.  497,  44  N.  E.  984.  .34:  750 
When  constitutionality  will  be  considered. 
Jurisdiction  to  Review  Constitutionality  of 

Statutes,  see  supra,  1.  c,  2. 

498.  Courts  will  not  assume  to  pass  upon 
constitutional  questions  unless  properly  be- 
fore them.  State  ex  rel.  Taylor  v.  Lord,  28 
Or.  498,  43  Pac.  471,  31:473 

499.  The  constitutionality  of  a  statute 
will  not  be  considered  in  a  case  which  can  be 
decided  upon  its  merits  without  such  con- 
sideration. Parker  v.  State  ex  rel.  Powell, 
133  Ind.  178,  32  N.  E.  836,  18:  567 

500.  Where  nrovisions  of  a  statute  are  in 


COURTS.  V.  d. 


877 


no  wise  practically  involved  in  the  case  un- 
der consideration,  their  constitutionality  will 
not  be  passed  upon.  Woolen  v.  8tate,  24 
Fla.  335,  5  So.  39,  1 :  819 

501.  A  court  of  equity  will  not  assume  to 
determine  the  constitutionality  of  a  legisla- 
tive act  unless  the  case  comes  within  some 
recognized  ground  of  equity  jurisdiction,  and 
presents  some  actual  or  threatened  infringe- 
ment of  the  rights  of  property  on  account  of 
such  unconstitutional  legislation.  State  ex 
rel.  Taylor  v.  Lord,  28  Or.  498,  43  Pac.  471, 

31 :  473 

.502.  Courts  will  not  spend  time  in  at- 
tempting to  remedy  errors  in  an  apportion- 
ment of  members  of  the  legislature  among 
the  inhabitants  of  the  state,  which  injure 
no  one  and  which  raise  nothing  but  abstract 
questions  for  adjudication.  People  ex  rel. 
Carter  v.  Rice,  135  N.  Y.  473,  31  N.  E.  921, 

16:  836 

503.  The  constitutionality  of  the  late  su- 
preme court  commission  of  Colorado  will  not 
be  considered  in  a  private  controversy  which 
was  referred  to  the  commission  for  examin- 
ation, and  where  the  cause  in  which  the 
judgment  sought  to  be  impeached  was  ren- 
dered has,  according  to  records  of  the  .su- 
preme court  and  in  conformity  with  its  pro- 
cedure, pas.sed  to  the  jurisdiction  of  the 
trial  court,  such  judgment  being  only  indi- 
rectly drawn  in  question  through  suit  upon 
the  appeal  bond  given  irt  connection  with  the 
former  review  thereof.  Rockwell  v.  Butler, 
17  Colo.  290,  29  Pac.  458,  17:611 

504.  The  constitutionality  of  a  statute 
giving  women  the  right  to  hold  office  will 
not  be  passed  upon  in  a  collateral  proceed- 
ing. Stevens  v.  Carter.  27  Or.  553.  40  Pac. 
1074.  31:342 

505.  The  determination  of  the  constitu- 
tionality of  a.  statute  is  within  the  power  of 
the  court  in  a  habeas  corpus  ])roceeding 
where  both  parties  request  it,  although 
there  may  be  some  objection  to  this  moilc  of 
raising  the  question.  Com.  v.  Huntley,  156 
Mass.  230,  30  N.  E.  1127.  15:  839 
Ordinances. 

Presumption  ami  Burden  of  Proof  as  to,  see 
Evidence,  200-205. 

506.  Whenever  a  city  ordinance  can  i>c  so 
construed  and  applied  as  to  give  it  force  and 
validity  this  will  be  done  by  the  courts,  al- 
though the  construction  so  put  upon  it  may 
not  be  the  most  obvious  and  natural  one.  or 
the  literal  one.  Swift  v.  Topeka.  43  Kan. 
<)71,  23  Pac.  1075.  8:  772 

507.  I3oubt  as  to  the  constitutionality  of 
an  ordinance  relating  to  the  construction  of 
a  public  improvement  will  be  resolved  in 
favor  of  the  property  rights  of  individuals 
as  against  the  power  of  tne  city  to  invade 
them.  Slaughter  v.  O'Berry,  126  N.  C.  181, 
35  S.  E.  241,  48:  442 

508.  Courts  cannot  indulge  the  presump- 
tion that  an  ordinance  was  passed  for  an  il- 
legal purpose,  when  it  was  apparent  that  it 
could  be  done  legally.  Chicago  General  K. 
Co.  V.  Chicago.   176  "ill.  253,  52  N.  E.   880. 

66:  959 

509.  A  very  clear  abuse  of  the  police  power 
must  be  shown  in  order  to  justify  the  court 


in  declaring  ordinances  regulating  pawn- 
brokers, junk  dealers,  and  dealers  in  second- 
hand goods,  to  be  unreasonable  and  void. 
Grand  Rapids  v.  Brandy,  105  Mich.  670,  64 
N.  W.  29,  32:  116 

510.  A  court  should  not  set  aside  a  muni- 
cipal ordinance  for  unreasonableness,  unless 
it  is  manifestly  so  on  its  face,  or  is  based 
on  fraud,  or  was  passed  in  wanton  disre- 
gard of  private  rights,  or  exceeded  the  power 
of  the  council.  Olvmpia  v.  Mann,  1  Wash. 
389,  25  Pac.  337,     "  12:  150 

d.  State  Courts  Following  Federal  Decisions. 
For  Editorial  Notes,  see  infra,  VI.  §  16. 

511.  The  construction  of  provisions  of  the 
Federal  Constitution  by  the  Supreme  Court 
of  the  United  States  must  be  followed  by 
the  atate  courts  in  all  matters  to  which 
such  provisions  are  applicable.  State  ex 
rel.  Board  of  Transp.  v.  Sioux  City,  O.  &  W. 
R.  Co.  46  Neb.  682,  65  N.  W.  766,       31 :  47 

512.  A  decision  of  the  Supreme  Court  of 
the  United  States  is  binding  on  a  state 
court  in  a  case  which  arose  under  territorial 
laws  before  the  state  was  admitted  to  the 
Union.  Choate  v.  Spencer,  13  Mont.  127,  32 
Par.  651,  20:  424 

513.  A  decision  of  the  J?'ederal  court  sus- 
taining the  constitutionality  of  a  state  stat- 
ute is  not  binding  upon  a  state  court,  when 
the  same  question  subsequently  arises  there 
under  a  similar  statute;  but  it  is  the  duty 
of  the  state  court  to  examine  and  decide  the 
question  according  to  its  interpretation  of 
the  constitutional  guaranty.  People  v. 
Budd,  117  N.  Y.  1.  22  N.  E.  670,  5:  559 

514.  On  questions  of  the  requirements  of 
the  state  Constitution  the  supreme  court  of 
the  state  is  not  at  liberty  to  set  aside  or 
discard  its  own  views  because  of  different 
conclusions  by  the  Federal  courts.  Indian- 
apolis V.  Navin,  151  Tnd.  139,  156,  47  N.  E. 
525,  51  N.  E.  80.  41:  337 

515.  A  decision  of  the  Supreme  Court  of 
tlif  United  States,  holding  that  an  eight- 
hour  law  of  a  certain  state  does  not  violate 
the  Federal  Constitution,  is  not  binding  on 
the  courts  of  another  state  in  favor  of  the 
validity  of  such  a  law  under  the  Constitu- 
tion of  that  state.  Re  Morgan,  26  Colo. 
415,  58  Pac.  1071,  47:  52 

516.  When  a  state  court  has  yielded  its 
opinion  and  adopted  that  of  the  United 
States  Supreme  Court  upon  a  given  subject, 
and  such  decision  has  been  acquiesced  in  for 
many  years,  it  will  not  be  departed  from  un- 
less the  court  is  very  sure  it  is  wrong,  and 
also  that  the  United  States  court  either  will 
not  regard  the  state  decision  as  subject  to 
review  by  it,  or  will  change  its  own  decision. 
Phaniix  Nat.  Bank  v.  Batcheller,  151  Mass. 
589.  24  N.  E.  917,  8:  644 
Commercial  law. 

517.  State  legislation  with  respect  to  the 
law  merchant  must  be  recognized  and  en- 
forced by  Federal  courts,  although  in  the 
absence  of  such  statutes  they  are  not  bound 
by  state  decisions  on  the  subject.  Hudson 
Furniture  Co.  v.  Harding,  17  C.  C.  A.  203. 
34  U.  S.  App.  148,  70  Fed.  468,  30:  513 


878 


COURTS.   V.  e.  f. 


518.  A  state  statute  providing  that  all 
persons  becoming  parties  to  promissory 
notes  payable  on  time,  by  signature  on  the 
back  thereof,  shall  be  entitled  to  the  same 
notice  of  nonpayment  as  indorsers,  must 
control  the  decisions  of  a  Federal  court  as  to 
the  rights  of  parties  to  a  note  payable  in 
that  state.  Id. 

e.  Following  Decisions  of  Courts  of  Other 
State  or  Country. 

Looking  to  Decisions  of  Other  States  in  As- 
certaining Rules  of  Common  Law,  see 
Common  Law,  15. 

As  to  Construction  of  Constitution,  see  Con- 
stitutional Law,  55. 

See    also    supra,    497. 

For  Editorial  Notes,  see  infra,  VI.  §  16. 

519.  The  construction  of  a  statute  by  the 
lower  courts  of  the  state  of  its  enactment  is 
not  binding  on  the  courts  of  another  state. 
Schmaltz  v.  York  Mfg.  Co.  204  Pa.  1,  53  Atl. 
522,  59:  907 

520.  The  construction  of  a  state  statute 
by  the  courts  of  that  state  will  ordinarily 
be  adopted  in  another  state.  Bell  v.  Farwell, 
176  III.  489,  52  N.  E.  346,  42:  804 

521.  In  construing  the  statutes  of  another 
state,  courts  must  accept  as  conclusive  the 
construction  put  thereon  by  the  highest  ju- 
dicial tribunal  of  such  state.  Watson  v. 
Lane  (N.  J.  Err.  &  App.)  52  N.  J.  L.  550,  20 
Atl  894,  10:  784 

522.  Decisions  of  a  state  that  under  its 
statute  notice  of  an  unrecorded  mortgage 
will  not  affect  the  rights  of  a  third  person 
dealing  with  the  mortgaged  property  are 
binding  on  the  courts  of  a  territory  over 
which  the  statute  is  subsequently  extended 
by  Congress.  McFadden  v.  Blocker,  3  Ind. 
Terr.  224,  54  S.  W.  873,  58:  894 

523.  The  construction  of  a  statute  creat- 
ing stockholders'  liability  for  corporate 
debts,  by  the  state  courts,  will  not  be  fol- 
lowed in  other  states,  if  to  do  so  would  be 
unjust  to  their  citizens  and  violate  the  pol- 
icy of  their  laws.  Finney  v.  Guy,  106  Wis. 
256,  82  N.  W.  595,  49:  486 

524.  The  construction  of  a  statute  impos- 
ing liability  upon  stockholders  for  debts  of 
a  corporation,  made  by  the  highest  court  of 
the  state  in  which  it  was  enacted,  is  bind- 
ing upon  the  courts  of  another  state  in 
which  it  is  sought  to  be  enforced.  Howarth 
V.  Lombard,  175  Mass.  570,  56  N.  E.  888, 

49:  301 

525.  Decisions  of  the  English  courts,  ren- 
dered since  the  independence  of  America, 
are  entitled  to  respect  upon  the  question  as 
to  what  the  common  law  is,  and  in  particu- 
lar CBses  may  properly  be  regarded  as  con- 
clusive. Johnson  v.  Union  P.  Coal  Co.  28 
Utah,  506,  76  Pac.  1089,  67:  506 

f.  Federal  Courts  Following  State  Decisions. 

For  Editorial  Notes,  see  infra,  VI.  §  16. 

.526.  The  question  whether  or  not  the  is- 
suance and  sale  of  bonds  by  a  municipality 
to  procure  a  water  supply  will  create  an  in- 
debtedness must  be  solved  by  the  law  appli- 
cable to  contracts  in  general,  and  to  negotia- 


ble bonds  in  particular,  upon  which  the  Fed- 
eral courts  are  not  bound  by  state  decisions. 
Ottumwa  V.  City  Water  Supply  Co.  56  C.  C. 
A.  219,  119  Fed.  315,  59:604 

527.  The  question  whether  or  not  an  in- 
surable interest  in  an  assignee  is  requisite 
to  the  validity  of  the  assignment  of  a  policy 
of  life  insurance,  which  was  originally  is- 
sued to  one  who  had  an  insurable  interest, 
is  a  question  of  general  law,  upon  which  the 
decisions  of  the  courts  of  the  state  in  which 
the  assignment  was  made  are  not  control- 
ling in  the  Federal  courts.  Gordon  v.  Ware 
Nat.  Bank,  132  Fed.  444,  67:  550 

528.  The  right  of  an  adjoining  landowner 
to  make  a  new  bank  for  a  navigable  river 
which  forms  the  boundary  between  two 
states,  or  by  artificial  structures  to  tarn  the 
water  upon  the  lands  upon  the  opposite  side 
of  the  river,  is  not  a  local  question  on  which 
a  Federal  court  is  bound  by  state  decisions, 
but  depends  upon  general  principles  of  law. 
Cairo,  V.  &  C.  R.  Co.  v.  Brevoort,  62  Fed. 
129,  25:  527 
Constniction  oi  state  statutes  of  Constitu- 
tions. 

For  Editorial  Notes,  see  infra,  VI.  §  16. 

529.  The  construction  given  by  the  highest 
court  of  a  state  to  a  statute  of  limitations 
of  that  state  will  be  followed  by  the  Feder- 
al courts.  Brunswick  Terminal  Co.  v.  Na- 
tional Bank  of  Baltimore,  40  C.  C.  A.  22, 
99  Fed.  635,  48:  625 

530.  The  first  direct  ruling  of  the  highest 
court  of  a  state  construing  a  state  statute 
will  be  followed  by  a  Federal  court  without 
further  inquiry,  notwithstanding  a  prior  de- 
cision of  the  Federal  court  to  the  contrary. 
Andrews  v.  National  Foundry  &  P.  Works, 
46  U.  S.  App.  281,  76  Fed.  166,  22  C.  C.  A. 
110,  36:  139 

531.  The  decisions  of  the  highest  court  of 
a  state  upon  the  proper  construction  to  be 
given  to  the  constitutional  and  statutory 
provisions  of  that  state  are  binding  in  Fed- 
eral courts.  Rhodes  v.  United  States  Nat. 
Bank,  24  U.  S.  App.  607,  66  Fed.  512,  13  C. 
C.  A.  612,  34:  742 

632.  A  Federal  court  should  render  judg- 
ment depending  on  the  construction  of  a 
state  Constitution,  in  accordance  with  a  pre- 
vious decision  by  the  highest  state  court  on 
the  subject,  although,  before  such  state 
decision  was  rendered,  the  Federal  court  had 
rendered  an  opinion  to  the  contrary.  Sand- 
ford  V.  Poe,  16  C.  C.  A.  305,  37  U.  S.  App. 
378,  69  Fed.  546,  60:  641 

533.  The  fact  that  a  case  argued  and  du'y 
considered  in  a  state  court  was  a  friendly 
one  will  not  prevent  the  decision  therein  on 
the  construction  of  the  State  Constitution 
from  being  conclusive  in  Federal  courts.    Id. 

534.  In  the  construction  of  the  statutes  of 
a  state  which  measures  the  powers  and  lia- 
bilities of  its  political  organizations  Federal 
courts  uniformly  follow  the  interpretation 
of  the  highest  judicial  tribunal  of  the  state, 
where  no  question  of  general  or  commercial 
law  or  of  right  under  the  United  States  Con- 
stitution or  laws  is  involved.  Illinois  Trust 
&  Sav.  Bank  v.  Arkansas  City,  76  Fed.  271, 
40  U.  S.  App.  257,  22  C.  C.  A.  171,      34:  518 


COURTS,  V.  f. 


879 


535.  The  decision  of  the  highest  court  of  a 
stat€  in  the  construction  of  its  statutes,  and 
as  to  the  validity  or  invalidity  of  contracts 
dependent  only  on  such  statutes,  is  the  con- 
trolling rule  of  decision  in  Federal  courts, 
where  there  is  no  Federal  question.  Clarks- 
burg Electric  Light  Co.  v.  Clarksburg,  47  W. 
Va.  739,  35  S.  E.  994,  50:  142 

536.  The  construction  by  a  state  court  of 
a  law  of  the  state  as  authorizing  the  court 
to  try  and  determine  in  a  condemnation  pro- 
ceeding an  adverse  claim  of  the  plaintiff 
therein  to  an  interest  in  the  property  sought 
to  be  condemned  is  conclusive  on  the  Su- 
preme Court  of  the  United  States  on  writ 
of  error  to  that  court.  Hooker  v.  Los  An- 
geles, 188  U,  S.  314,  47  L.  ed.  4g7,  23  Sup. 
Ct.  Rep.  395,  "      63:  471 

537.  A  Federal  court  is  bound  by  a  con- 
struction given  by  the  courts  of  the  state 
in  which  it  is  sitting,  to  a  statute  imposing 
liability  upon  mine  owners  for  death  of  em- 
ployees, to  the  effect  that  it  takes  away  the 
defense  of  contributory  negligence.  Fulton 
V.  Wilmington  Star  Min.  Co.  133  Fed.  193, 

68:  168 

538.  The  rule  of  law  in  Tennessee,  which 
prevents  the  defense  of  contributory  negli- 
gence from  being  a  complete  bar  to  an  ac- 
tion for  injury  to  a  person  on  a  railroad 
track,  under  the  statute,  but  makes  it  cause 
for  reduction  of  damages,  being  one  which 
grows  out  of  the  language  of  the  statute 
itself,  the  construction  thereof  by  the  su- 
preme court  must  be  followed  in  Federal 
courts,  in  an  action  arising  in  that  state. 
Byrne  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  22 
U.  S.  App.  220,  9  0.  C.  A.  666,  61  Fed.  605, 

24:  69 J 
International  comity. 

539.  The  question  of  international  comity 
is  controlled  and  decided  by  international 
law  and  custom,  and  the  decisions  of  local 
courts  thereon  are  not  controlling  in  the 
courts  of  the  United  States.  Evey  v.  Mexi- 
can C.  R.  Co.  26  C.  C.  A.  407,  52  U.  S.  App. 
118,  81  Fed.  294,  38:  387 
Survivability  of  action. 

540.  The  survivability  of  a  right  of  ac- 
tion is  a  property  right,  in  respect  of  which 
the  Federal  courts  are  governed  by  local  law. 
Warren  v.  Furstenheim,  35  Fed.  691,  1:  40 
Matters  as  to  evidence. 

541.  The  rules  of  evidence  in  the  Federal 
courts  are  questions  of  general  law,  not  con- 
trolled by  state  decisions.  Garrett  v.  South- 
em  R.  Co.  41  C.  C.  A.  237,  101  Fed.  102, 

49:  645 

542.  The  Federal  court  will  not  follow  the 
state  court  decisions  as  to  the  admissibility 
in  evidence  at  common  law  of  extracts  from 
medical  books.  Union  P.  R.  Co.  v.  Yates,  25 
C.  C.  A.  103,  49  U.  S.  App.  241,  79  Fed.  584, 

40:  553 
Contracts  limiting  liability. 

543.  Decisions  by  state  courts  as  to  the 
validity  of  a  contract  against  liability  for 
negligence  are  not  conclusive  upon  the  Fed- 
eral courts.  Hartford  F,  Ins.  Co.  v.  Chicago, 
M.  &  St.  P.  R.  Co.  70  Fed.  201,  36  U.  S.  App. 
152,  17  C.  C.  A.  62,  30:  193 


Fellow  service. 

544.  The  question  of  fellow  service,  in  an 
action  by  an  employee  in  a  Federal  court  to 
recover  from  his  employer  for  personal 
injuries  inflicted  through  negligence,  is  not 
one  of  local  law  to  be  settled  by  the  deci- 
sions of  the  highest  courts  of  the  state  in 
which  the  cause  of  action  arose.  Louisville 
&  N.  R.  Co.  V.  Stuber,  48  C.  C.  A.  149,  108 
Fed.  934,  54:  696 
Rule  of  property. 

For  Editorial  Notes,  see  infra,  VI.  §  18. 

545.  The  rule  of  property  under  the  de- 
cision of  the  courts  of  a  state  will  be  regaru- 
ed  by  Federal  Courts.  Balkham  v.  Wood- 
stock Iron  Co.  43  Fed.  648,  11:  230 
Commercial  law. 

For  Editorial  Notes,  see  infra,  VI.  §  16. 

546.  Federal  courts  on  questions  of  gener- 
al commercial  law  exercise  their  own  judg- 
ment independent  of  the  state  law,  but  give 
weight  to  the  decisions  of  the  courts  of  the 
state  whose  law  they  are  administering 
where  the  question  is  a  new  one  in  the  Fed- 
eral courts.  Farmers  Nat.  Bank  v.  Sutton 
Mfg.  Co.  6  U.  S.  App.  312,  3  C.  C.  A.  1,  52 
Fed.  191,  17:595 

547.  The  construction  and  effect  of  recit- 
als in  negotiable  instruments  is  a  question, 
not  of  state  constitutional  or  statutory  law. 
but  of  commercial  law,  upon  which  the  de- 
cisions of  the  state  courts  are  not  control- 
ling in  the  Federal  tribunals.  Independent 
School  Dist.  V.  Rew,  49  C.  C.  A.  198,  111  Fed. 
1,  55:  364 

548.  The  relation  to  a  note,  of  a  party 
whose  name  is  signed  on  the  back  of  it,  is  a 
question  of  general  law  on  which  Federal 
courts  are  not  bound  by  state  decisions. 
Hudson  Furniture  Co.  v.  Harding,  34  U.  S. 
App.  148,  17  0.  0.  A.  203,  70  Fed.  468, 

30:  513 

549.  The  general  commercial  law  as  to  no- 
tice to  an  indorsee  of  a  note,  of  the  equities 
between  the  original  parties,  prevails  in  the 
Federal  courts,  rather  than  any  particular 
rule  established  in  a  state  by  its  courts  or 
statutes.  Bank  of  Edgefield  v.  Farmers  Co- 
op. Mfg.  Co.  2  U.  S.  App.  282,  2  0.  C.  A.  637, 
52  Fed.  98,  18:  201 

550.  The  question  of  the  validity  of  mu- 
nicipal bonds  is  one  of  commercial  law,  upon 
which  the  Federal  courts  are  bound  to  exer- 
cise their  own  judgment.  Huron  v.  Second 
Ward  Sav.  Bank,  30  C.  C.  A.  38,  57  U.  S. 
App.  593,  86  Fed.  272,  49:  534 
Validity  of  mortgages. 

551.  Whether  chattel  mortgages  are  void 
as  common-law  assignments  giving  prefer- 
ences to  creditors  is  a  question  of  local  law, 
upon  which  a  Federal  court  will  follow  the 
state  decisions.  Brown  v.  Grand  Rapids 
Parlor  Furniture  Co.  16  U.  S.  App.  221,  7 
C.  C.  A.  225,  58  Fed.  286.  22:817 

552.  A  Federal  court  will  follow  the  lat- 
est decisions  of  the  supreme  court  of  the 
state  as  to  the  validity  of  mortgages,  al- 
though a  different  decision  by  that  court 
was  regarded  as  the  law  when  the  mortga- 
ges were  made.  Id. 
Damages  for  mental  anguish. 

553.  The  liability  of  a  telegraph  company 


880 


COURTS,  VI.  (Ed.  Notes.) 


to  damages  for  mental  anguish  on  account 
of  negligence  in  transmitting  a  message  is  a 
question  of  general  law  on  which  a  Federal 
court  is  not  bound  by  the  decisions  of  the 
state  where  the  cause  of  action  arises. 
Western  U.  Teleg.  Co.  v.  Wood.  13  U.  S.  App. 
317,  6  C.  C.  A.  432,  57  Fed.  471,  21:  706 

Replevin  suit. 

.5.54.  The  decision  of  a  state  court  in  a  re- 
plevin suit  in  which  the  construction  of  a 
state  statute  is  not  involved  is  not  binding 
on  a  Federal  court  in  a  subsequent  suit  upon 
the  replevin  bond.  Gilbert  use  of  Bishop  v. 
American  Surety  Co.  57  C.  C.  A.  619.  121 
Fed.   499,  61 :  253 

555.  The  Federal  court  is  not  bound  to  fol- 
low a  decision  of  the  courts  of  the  state  in 
which  it  is  sitting,  declaring  that  a  plaintiff 
in  replevin  is  not  bound  to  return  the  prop- 
erty replevied  if  prevented  by  act  of  law, 
which  is  based,  not  upon  a  statute,  but  upon 
general  principles.  Three  States  Lumber  Co. 
V.   Blanks,   66   C.   C.   A.   353,   133   Fed.  470, 

69:  283 


VI.  Editorial  Notes. 
a.  Jurisdiction  and  powers  in  general. 

§  I.  Generally. 

As  to  Admiralty  Jurisdiction,  see  Admiral- 
ty, III. 

As  to  Appellate  Jurisdiction,  see  Appeal  and 
Error,  XI.  §  2. 

As  to  Crimes,  see  Criminal  Law,  §§  13,  14. 

As  to  Removal  of  Causes  to  Federal  Courts, 
see  Removal  of  Causes, 
III. 

As  Affected  by  Mode  of  Process,  see  Writ 
and  Process,  IV.  §§  5-9. 

Presumption  as  to.     12:  575. 

Estoppel  to  deny.     15:  273. 

On  unauthorized  appearance  by  attorney. 
21 :  848. 

Original  jurisdiction  of  court  of  last  resort 
in  mandamus  case.  58: 
833. 

Equitable  jurisdiction  to  protect  civil  rights. 
10:  616.* 

Exclusiveness  of  jurisdiction  by  appoint- 
ment of  receiver.    20:  391. 

Chancery  jurisdiction  over  gifts  to  charity. 
1:  418.* 

■Turisdiction  to  annul  marriage  for  insanity 
of  one  of  the  parties.  40: 
745. 

Necessity  of  judicial  proceedings  to  con- 
stitute due  process  of  law. 
2:  656.* 

Change  of  decision  of  state  court  as  an  im- 
pairment of  contract.  16: 
646. 

Relation  of  power  to  eminent  domain.  4: 
785:*  7:  151.* 

Jurisdiction  over  proceedings  for  establish- 
ment of  drains  and  sewers. 
GO:  174. 

Retention  of  jurisdiction  to  afford  complete 
relief.    3:  191.* 

•Turisdiction  of  court  of  claims.     3:  463.* 


Jurisdiction  and  powers  of  consuls.    45:  481. 
Jurisdiction   of  crimes   by  and  against   In- 
dians.   21:  169. 
§  2.  Effect  of  lack  of  jurisdiction;  challen- 
ging jurisdiction. 
As  affecting  purjury.     54:  513. 
As  affecting  liabilitv  for  false  imprisonment. 

18:  356. 
Injunction  against  judgments  for  want   of 

jurisdiction.    31:  200. 
Right  of  alleged  fraudulent  grantee  to  at- 
tack     judgment      against 
grantor  for  lack  of  juris- 
diction.    67 :  603. 
Estoppel  of  party  who  has  invoked  jurisdic- 
tion to  deny  it.    15:273. 
After  obtaining  benefit  of  the   court's 
taking    jurisdiction.       15: 
274. 
Jurisdiction  over  consuls.     45:  580. 
§  3.  Over  corporations  and  associations. 
See  also  infra,   §   6^/2. 
Equity   jurisdiction    over   corporations.      2: 

551;*  9:  651.* 
What  service  of  process  upon  corporation  is 
sufficient  to  constitute  due 
process  of  law.     50:  588. 
When  civil  courts  have  jurisdiction  of  con- 
troversy between   associa- 
tion and  its  members.    49 : 
353. 
Right  of  nonresident  to  sue  foreign  corpora- 
tion.   70:  513. 
Conclusiveness   of  decisions  of  tribunals  of 
associations     or     corpora- 
tions.   49:  353. 
Tribunals  other  than  ecclesiastical.    49: 
353. 
In  general;  when  civil  courts  have 

jurisdiction.     49:  353. 
Discipline.     49:  354. 

Extent    of    review,    generally. 

49:  354. 
For  insufficient  or  unauthorized 
cause.     49:  369. 
In  general.     49:  359. 
When  power  conferred  in 
general  terms.     49:  360. 
Notice  and  opportunity  to  be 

heard.     49:  363. 
Miscellaneous    defects;    proce- 
dure.    49:  367. 
Waiver  of  defects.    49:  371. 
Decisions     directly     on     property 
rights;   validity  of  agree- 
ment to  abide  by  decision. 
49:  372. 
Miscellaneous  decisions.     49:  378. 
Duty  to   exhaust   remedies   within 
the  organization.     49:  379. 
Ecclesiastical  tribunals.     49:  384. 

Basis    of   court's   jurisdiction    over 
ecclesiastical        controver- 
sies.    49:  384. 
Conclusiveness  of  decisions,  gener- 
ally.    49:  386. 
Jurisdiction  of  ecclesiastical  tribu- 
nals.    49:  390. 
Regularity  of  procedure.    49:  395. 
Fairness  and   validity  of  decisions 
as  tested  by  church  laws. 
49:  397. 


COURTS,  VI.  (Ed,  Notes.) 


881 


Duty  to  obtain  decision  by  higher  I 

tribunal.     49:  399. 

Congregational      and     independent 

cimrches.     49:  399. 

§   4.    With   respect   to    statutes   and   ordi- 
nances. 

Power  to  interpret  and  construe  statutes. 
12:  856.* 

Reluctance  to  annul  statute.     13:  304.* 

Inquiry  into  conclusiveness  of  enrolled  bill. 
23:  340. 

Reasonableness  of  ordinance  as  a  subject  of 
judicial  inquiry.    2:  723.* 

§   5.  Surrogates'   courts;    probate  matters; 
wills. 

Probate  jurisdiction.     3:  812.* 

Jurisdiction  of  surrogate's  court,  generally. 
2:  175.* 

Concurrent  jurisdiction  of  courts  of  equity 
with  surrogate's  court.  2: 
176. 

Interference  by  chancery  with  proceedings 
before  surrogate.     2:  176.* 

Power  of  surrogate  to  vacate  or  set  aside 
decree  or  order.    2:  044.* 

Power  to  dismiss  proceedings.    2:  644. 

Jurisdiction  of  suit  to  determine  validity  of 
devise.     2:  175.* 

Jurisdiction  over  executors  and  administra- 
tors.   2:  828.* 

§  6.  Jurisdiction  as  affected  by  residence  or 
citizenship  or  territorial  limitations. 

As  to  Jurisdiction  in  Divorce  as  Affected  by 
Domicil,  Residence,  or 
Place  of  Marital  Offense, 
see  Conflict  of  Laws,  III. 
§  19. 

As  to  Jurisdiction  of  Action  foa-  Death  or 
Bodily  Harm  Occurring  in 
Another  State,  see  Con- 
flict of  Laws,  III.  §  25. 

As  to  Enforcement  of  Penal  Laws  of  An- 
other State,  see  Conflict 
of  Laws,  HI.  §  26. 

Federal  Jurisdiction  as  Affected  by  Resi- 
dence or  Citizenship,  see 
infra,  VI.  §  13. 

Discriminating  against  citizens  of  .  other 
states.     14:  583. 

Jurisdiction  over  suits  affecting  real  prop- 
erty in  another  state  or 
country.    69:  673. 

Jurisdiction  to  order  foreclosure  sale  of  rail- 
road in  different  states. 
.32:  208;  69:  682. 

Locality  of  crime  committed  through  the 
agency  of  the  mails  or  of 
carriers.    19:  775. 

Locality  of  crime  committed  by  shooting 
or  striking  across  state 
boundary.    "28:  59. 

Locus  of  cause  or  subject  of  action  as  af- 
fecting jurisdiction  of  ac- 
tion by  nonresident 
against  foreign  corpora- 
tion.    70:  543. 

§  654.  —  Locality  of  jurisdiction  of  state 
court  over  foreign  corporations. 

Generally.    70:  692. 

Jurisdiction  coextensive  with  the  state.    70: 
692. 
L.R.A.  Dig.— 56. 


Constructive  domestic  residence.    70:  693. 

Counties   in  which   railroads   extend.     70: 
696. 

Venue  determined  by  doing  business.  70: 
696. 

Resident  agents.    70:  697. 

Place  of  origin  of  the  cause  or  situation  of 
the  subject  of  the  action. 
70:  699. 
Local  actions.    70 :  699. 
Transitory  actions.    70:  699. 

Of  domestic  origin.     70:  699. 
Of  foreign  origin.     70:  700. 

When  the  foreign  corporation  is  not  sole  de- 
fendant.    70:  701. 

Effect  of  appearance  and  waiver.    70:  701. 

Federal  corporations.    70:  702. 

Counties  wh«re  plaintiff  resides.     70:  702. 

Plaintiff's  choice.    70:  702. 

Courts  of  limited  jurisdiction.    70:  702. 

Constitutionality  of  venue  statutes.  70: 
703. 

Construction  of  venue  statutes.     70:  703. 

§  7.  Jurisdiction  as  affected  by  amount  in- 
volved. 

Amount  in  dispute  in  case  of  injunction 
against  enforcement  •£ 
liens  or  claims  against 
specific  property.     64:7'81. 

Voluntary  credits  to  bring  debt  withia  ju- 
risdiction of  court.  28: 
221. 

The  rule  permitting  remission.     28:  222. 

The  rule  as  affected  by  the  character  of  the 
claim.     28:  223. 
Actions  for  an  uncertain  amount.     28: 

223. 
Actions    for    an    amount    certain.     28: 

224. 
Actions    in    which   jurisdiction   depends 
upon    the    value    of    the 
property  in  suit.     28:  224. 

Remission  of  interest.     28:  225. 

Rule  denying  the  right  to  remit.    28:  226. 

What  constitutes  a  remission.     28:  228. 

When  made.    28:  229. 

§  8.  Relation  to  other  departments  of  gov- 
ernment. 

Independence  of  different  departments  of 
government.    4:  79.* 

Interference  with  other  departments  of  gov- 
ernment.   3:  53.* 

Power  of  judiciary  to  interfere  with  execu- 
tive.    3:  316.* 

How  far  courts  will  interfere  by  mandamus 
with  heads  of  executive 
department.     3:  55.* 

Legislative  authority  to  abridge  power  of 
court  to  punish  for  con- 
tempt.    36:  254.* 

§  9.  Superintending  control  and  supervisory 
jurisdiction  of  superior  over  inferior 
courts. 

Generally.     51:  33. 

Inherent  power  of   supervisory  or   superin- 
tending control  over  infe- 
rior tribunals.     51:  34. 
Existence  and  derivation  of  power.    51 : 

34. 
In  what  courts  the  inherent  power  ex- 
ists.    51 :  35. 


COURTS.  VI.  (El.  Notes.) 


In  the  highest  law  court  of  origi- 
nal    general    jurisdiction. 
51:35. 
In  courts  of  appellate  jurisdiction. 

51:  36. 
In  courts  of  local  jurisdiction.    51: 
37. 

Constitutional  and  statutory  grants  of  su- 
perintending control,  gen- 
eral supervision,  etc.  51: 
37. 

In  states  which  have  no  express  constitu- 
tional or  statutory  grants 
of  the  power.    51:  74. 

In  courts  of  the  United  States.    51:  103. 

Where  the  application  to  correct  should  be 
first  made.    51:  107. 
To  the  court  sought  to  be  controlled. 

51:107. 
To  an  inferior  jurisdiction  having  the 
power.    51:  107. 

When  the  power  is  exercised  without  des- 
ignating it  as   such.     51: 
107. 
By    courts    of    original    jurisdiction    as 
successor    of    the    King's 
bench.    51:  107. 
By  courts  having  no  grant  of  the  spe- 
cific power.     51:  108. 
By  courts  having  grants  of  the  juris- 
diction.    51:  108. 

Use  in  place  of  appeal  or  other  remedy.  51: 
109. 

For  what  purposes  exercised.    51:  109. 

Compelling  lower  court  to  act.    51:  109. 
Controlling  lower  court's  discretion  or 

judgment.     51:  110. 
To  aid  appellate  jurisdiction.    51:  110. 
In  exercise  of  revisory  jurisdiction.    51 : 
111. 

Power  of  legislature  to  interfere.    51:  111. 
To  enlarge  the  power.    51:  111. 
To  encroach  upon  the  power.    51:  111. 

Exercise  of  the  power  by  courts  of  local  ju- 
risdiction.    51:  111. 

§  10.  Time;  terms. 

Judicial  notice  of  terms.    4:  34.* 

Delay  of  prosecution  caused  by  failure  to 
hold  court,  as  ground  for 
discharge  of  accused.  56: 
530. 

Sitting  on  holidays.    19:  317. 

Extension  of  time  for  court  proceedings 
when  last  day  falls  on 
Sunday.    14:   122. 

§  II.  Judicial  notice  of  judicial  matters. 

As  to  Judicial  Notice,  Generallv,  see  Evi- 
dence, XIII.  §  1. 

Judicial  notice  of  jurisdiction  and  authority 
of  courts.    4:  34.* 

Judicial  notice  of  prior  judicial  proceedings. 
4:  34.* 

Judicial  notice  of  court  records.    4:  35.* 

Judicial  notice  of  terms  of  court.    4:  34.* 

§  12.  Property  in  custody  of  court. 

Replevin  for  propertv  in  legal  custody.  13: 
408. 

Rule  that  property  in  custody  of  law  is  not 
subject  to  seizure.  10: 
629.* 

Garnishment  of  propertv  in  custody  of  law. 
12:  508. 


Injunction  against  sale  of  property.  3C; 
103. 

b.  Federal  courts. 

§  13.  Generally. 

See  also  infra,  VI.  §  16. 

Equity  jurisdiction  of.     2:  225.* 

Circuit  court  jurisdiction.  1:  377,*  817;*  2: 
746.* 

Ancillary  jurisdiction.     3:  190.* 

Jurisdiction  of  suit  against  state  railroad 
commissioners.    3:  238. 

•Jurisdiction  as  afl'ected  by  amount  in  dis- 
pute.   2:  226.* 

Suit  by  assignee  of  chose  in  action.  1:  817;* 
12:  681.* 

Jurisdiction  of  circuit  court  not  conferred 
by  attachment  process 
against  nonresident.  6: 
252.* 

Citizenship  in  District  of  Columbia.    1 :  108.* 

Corporations  as  citizens  for  purposes  of 
Federal  jurisdiction.  '  11: 
216.* 

Necessity  of  diversity  in  citizenship  at  time 
suit  brought.     1:  108.* 

Right  of  citizen  of  District  of  Columbia  to 
maintain  suit  in  circuit 
court  on  the  ground  of  di- 
verse citizenship.     1:  108.* 

When  assignee  in  chose  of  action  may  sue 
in  United  States  circuit 
court.     2:746.* 

Jurisdiction  of,  with  respect  to  bridge  over 
navigable  waters.    2:541.* 

Jurisdiction  of  United  States  Supreme  Court 
in  action  against  national 
bank  to  recover  penalty 
for  taking  usurious  inter- 
est.    56:  680. 

Conditions  against  foreign  corporation  in- 
voking Federal  jurisdic- 
tion.   24:  294. 

Lien  of  judgment  of  Federal  court.    47:  469. 

c.  Conflict  of   authority;   relation   of  state 
to  Federal. 

§  14.  Generally. 

Courts  of  concurrent  jurisdiction  cannot  act 
in  conflict.     1:  573.* 

When  jurisdiction  of  law  and  equitv  con- 
current.    1:  191;*  5:  226.* 

Concurrent  jurisdiction  of  courts  of  equity 
witn  surrogate's  court.  2: 
176.* 

Retention  of  suit  in  court  whence  process 
first  issued.    2:  177.* 

Concurrent  jurisdiction  of  Federal  and  state. 
12:  725.* 

Noninterference  by  Federal  courts  with  pro- 
ceedings in  state  courts. 
5:  224.* 

Mutual  independence  of  state  and  Federal 
courts.     5:  221.* 

Retention  of  jurisdiction  by  court  first  ac- 
quiring same.     5:  222.* 

Priority  of  .right  obtained  by  actual  seizure. 
5:  223.* 

Exclusive  jurisdiction  in  court  first  acquir- 
ing possession  of  property. 
5:  223.* 


COURTS  MARTIAL— COVENANT. 


883 


Exclusiveness  of  jurisdiction  by  appoint- 
ment of  receiver  as  be- 
tween state  and  Federal 
courts.     20:  391. 

Injunction  against  suit  in  foreign  jurisdic- 
tion.    21:71. 

Pendency  of  actions  in  both  state  and  Fed- 
eral courts  sitting  in  same 
state.     42:  449. 

§  15.  Power  and  jurisdiction  of  state  court 
with  respect  to  Federal  matters. 

Administration    of    Federal    laws    in    state 
courts.     48:  33. 
Generally.    48:  33. 
CivU  laws.     48:  34. 
Criminal  and  penal  laws.    48:  38. 

With  respect  to  naturalization.    ■30:  761. 

When  state  courts  have  jurisdictioli  in  cases 
involving  patent  rights.  1: 
311,*  314.* 

Jurisdiction  of  state  court  to  enforce  for- 
feiture of  interes.t  provid- 
ed by  national  banking 
act.     56:  688. 

Jurisdiction  of  state  court  over  action  to  re- 
cover from  national  bank 
twice  the  amount  of  usu- 
rious interest  paid  to  it. 
56:  690. 

State  jurisdiction  over  lands  of  the  United 
States  within  the  state. 
17 :  720. 

§  16.  Rules  of  decision. 

As  to  Effect  and  Conclusiveness  of  Decision 
on  Appeal,  see  Appeal  and 
Error,  XI.  §  15. 

Questions  as  to  which  decisions  of  Federal 
court  are  conclusive.  5: 
513.* 

State  courts  following  Federal  decisions  in 
construing  statute  to  im- 
pose j>enalty  on  national 
banks  for  taking  illegal  in- 
terest.    56:  677. 

Binding  effect  of  decisions  of  state  supreme 
courts  on  courts  of  other 
states.    5:  512.* 

General    rule   that   United   States   Supreme 
Court  will  follow  decisions 
of  state  courts.     5:  509.* 
As  to  construction  of  state  Constitution 
or  statute.     5:  509.* 

Fe<leral  court  following  decision  of  state 
court  as  to  rule  of  prop- 
erty.    5 :  509.* 

Rule  of  decision  by  Federal  court  with  re- 
spect to  questions  of  gen- 
eral commercial  law.  5: 
510.* 

Application  of  statute  requiring  practice 
and  proceeding  in  Federal 
court  to  conform  "as  near 
as  may  be"  to  those  of 
state  court.     11:  275.* 

Adoption  by  Federal  courts  of  remedies  cre- 
ated    bv     state     statutes. 
18:  266." 
Preservation  of  equity  jurisdiction.    18: 

266. 
Enlargement     of     equitable     remedies. 
18:  266. 


Limitation  or  enlargement  of  equity 
powers.     18:  267. 

Extending  legal  remedies.     18:  268. 

Limiting  equitable  jurisdiction.  18: 
269. 


COURTS  MARTIAL. 


Necessity  of  Presentment  on  Indictment,  eee 
Criminal  Law^  80. 

The  trial  of  a  member  of  the  National 
Guard  in  time  of  peace  by  court-martial,  for 
a  violation  of  the  rules  and  regulations  of 
the  military  code,  and  his  punishment,  if 
found  guilty,  by  a  limited  fine  or  limited 
imprisonment  for  nonpayment  of  fine,  does 
not  violate  the  constitutional  right  of  trial 
by  jury  or  other  constitutional  provisions. 
State  ex  rel.  Madigan  v.  Wagener,  74  Minn. 
518,  77  N.  W.  424,  42:  749 


COURTYARD. 


Enjoining  Encroachment  on  Space  Reserved 
for,  see  Injunction,  182,  183. 


COVE. 

Right  to  Compensation  for  Closing  Entrance 
of,  see  Eminent  Domain,  254,  357,  358. 

Filling  Basin  of,  see  Fisheries,  3. 

Right  to  Fish  in,  see  Fisheries,  25,  26. 

Laches  Preventing  Ciaim  of  Rights  in,  sec 
Limitation  of  Actions,  44. 


COVENANT. 


I.  Construction  and  Effect  Generally. 

a.  In  General. 

b.  Restricting  Use  of  Property. 
II.  Breach;   Enforcement;  Who  Liable. 

a.  In  General. 

b.  What  Constitutes  a  Breach. 

c.  Who  May  Enforce. 

1.  In  General. 

2.  Covenants   Running  with  the 

Land. 

d.  Who  Liable  or  Bound. 

1.  In  General. 

2.  Covenants  Running  with   the 

Land. 

III.  Running  with  the  Land. 

IV.  Extinguishment   of,  or  Discharge  from. 

Covenant. 
V.  Editorial  Notes. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

105,  106. 
Against    Competition,   s«e  Conspiracy,   125, 

126. 
To  Pay  after  Death,  see  Contracts,  436. 
Effect  of  Invalidity  of,  see  Contracts,  555. 
Not  to  Engage  in  Business,  see  Contracts, 

III.  e,  2. 


884 


COVENANT,  I.  a. 


Estoppel  by,  see  Estoppel,  43,  44,  58,  59,  61, 
and  also  infra,  V.  §  4. 

Estoppel  against  Enforcing,  see  Estoppel, 
260,  271. 

Administrator's  Suit  on,  for  Rent,  see  Exec- 
utors and  Administrators,  109. 

As  to  Expectancy,  see  Expectancy,  4. 

On  Sale  of  Good'Will,  see  Good  Will,  16. 

Not  to  Foreclose  Mortgage,  see  Guaranty,"  25. 

In  Lease,  see  Lease,  IL  b. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  51. 

Effect  of,  on  Running  of  Limitations,  see 
Limitation  of  Actions,  91,  186. 

To  Insure  Mortgaged  Property,  see  Mort- 
gage, 49,  86. 

Adoption  of,  by  Mortgagee  Suing  Mortga- 
gor's Grantee,  see  Mortgage.  219. 

By  City  to  Keep  Highway  Open,  see  Munici- 
pal Corporations,  293. 

Pleading  in  Action  on,  see  Pleading,  286.  287. 

By  Husband  to  Surrender  Marital  Rights, 
see  Release,  1. 

Notice  of,  from  Record,  see  Real  Property, 
II.  d. 

Recovery  Back  by  Covenantee  of  Amount  of 
Encumbrance  Paid,  see  Trial,  572. 


I.  Construction  and  Effect  Generally, 
a.  In  General. 

Covenants  Running  with  the  Land,  see  infra, 
III. 

By  Assignee  of  Land  Contract,  see  Con- 
tracts,  350a. 

To  Assume  Obligations  of  Corporation,  see 
Corporations,  65. 

Distinction  Between  Covenant  and  Condi- 
tion, see  Deeds,  40-43. 

By  Indian,  see  Indians,  10. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

1.  It  .seems  that  a  covenant  under  seal  by 
a  life  tenant  having  power  to  dispose  of  the 
remainder  of  the  estate  by  will,  to  refrain 
from  disposing  of  a  portion  of  such  remain- 
der upon  consideration  that  the  will  grant- 
ing the  power  shall  not  be  contested,  is  en- 
forceable. Wood  V.  Bullard,  151  Mass.  324, 
25  N.  E.  67,  7 :  304 

2.  An  obligation  to  pay  a  portion  of  the 
expense  of  the  repairs  to  a  dam  is  not  creat- 
ed by  a  stipulation  in  a  deed  that  a  grantee 
shall  pay  a  part  of  the  sums  which  have  to 
be  paid  for  flowage  or  damages  to  proprie- 
tors of  lands  above  the  dam.  Whittenton 
Mfg.  Co.  V.  Staples,  164  Mass.  319,  41  N.  E. 
441,  29:  500 

3.  The  fact  that  the  amount  of  a  judg- 
ment was  determined  by  agreement  will  not 
take  the  judgment  out  of  the  protection  of  a 
covenant  to  indemnify  the  defendant  against 
liability  upon  the  claim  on  which  the  judg- 
ment is  taken,  although  it  will  reduce  the 
judgment  from  conclusive  to  presumptive 
evideiue  of  the  liability.  Kansas  City,  M.  & 
B.  R.  Co.  V.  Southern  Railway  News  Co. 
151  Mo.  273,  52  S.  W.  205,  '  45:  380. 

4.  The  support  of  an  incompetent  person 
who  has  always  lived  on  a  certain  farm,  to 


which  a  vendee  of  a  farm  binds  himself  by  a 
declaration  of  trust  to  apply  the  net  rents 
of  the  farm,  or  the  interest  on  the  purchase 
price  if  it  should  be  sold,  and  which  is  made 
a  first  lien  on  the  farm  in  case  of  sale  there- 
of, is  not  limited  to  support  on  the  farm, 
where  there  is  nothing  in  the  declaration  to 
show  that  intent.  McArthur  v.  Gordon,  126 
N.  Y.  597,  27  N.  E.  1033,  12:  667 

5.  A  covenant  by  a  married  man  to  sur- 
render, convey,  and  transfer  to  his  wife  and 
her  heirs  all  his  right  in  certain  lands  of  the 
wife,  which  he  had  acquired  by  his  marriage, 
the  wife  to  have  full  and  absolute  control 
and  possession  of  all  such  land  free  and  dis- 
charged of  all  rights,  claims,  or  demands  of 
the  husband,  requires  him  not  to  disturb  his 
wife's  enjoyment  while  she  keeps  her  proper- 
ty, to  execute  any  instrument  necessary  in 
order  to  release  his  right  if  she  conveys,  and 
to  claim  no  right  on  her  death,  but  to  do 
whatever  is  necessary  to  clear  the  title  from 
such  rights  at  that  time.  Poison  v.  Stewart, 
167  Mass.  211,  45  N.  E.  737,  36:  771 

6.  A  covenant  by  one  selling  a  business, 
that  she,  her  father,  husband,  and  brother- 
in-law  will  refrain  from  communicating  a 
secret  recipe  used  in  the  business  to  anyone 
but  the  buyer,  and  from  using  trademarks 
connected  with  the  business,  under  a  penalty 
of  $5,000  named  as  stipulated  damages  in 
case  of  a  violation  of  the  covenant  within 
five  years,  does  not  limit  her  liability  for 
such  aamages  to  her  own  personal  violation 
of  the  covenant,  but  extends  it  to  a  violation 
by  any  of  the  persons  named.  Tode  v. 
Gross,  127  N.  Y.  480,  28  N.  E.  469,  13:  652 
Mutuality. 

See  also  infra,  68,  69. 

7.  The  mutuality  of  covenants  of  adjoin- 
ing lot  owners  may  constitute  a  sufficient 
consideration  for  their  respective  grants  of 
easements.  Barr  v.  Lamaster,  48  Neb.  114, 
66N.  W.  1110,  32:451 

8.  A  covenant  for  a  party  wall,  expressly 
made  to  run  with  the  land,  will  not  be  held 
invalid  for  lack  of  mutuality  because  it  ap- 
pears to  have  been  executed  by  one  of  the 
parties  only,  who  is  defendant's  predecessor 
in  title,  where  it  recites  its  making  by  both, 
and  there  is  proof  that  a  wall  was  erected  by 
the  other  party  and  was  acquiesced  in,  and 
that  conveyances  were  made  subject  to  the 
agreement.  Mott  v.  Oppenheimer,  135  N.  Y. 
312,  31  N.  E.  1097,  17:409 
Implied  covenants. 

In  Lease,  see  Landlord  and  Tenant,  II.  d,  2. 

See  also  infra,  46,  82. 

For  Editorial  Notes,  see  infra,  V.  §  2. 

9.  At  common  law  a  covenant  of  seisin  is 
not  implied  in  a  deed  of  real  property  by  the 
use  of  the  operative  words  "grant,  bargain, 
sell,  convey,  and  warrant."  Aiken  v.  Frank- 
lin. 42  Minn.  91,  43  N.  W.  839,  6:  360 

10.  No  implied  covenant  arises  out  of  a 
recital  of  facts,  or  out  of  the  use  of 
words  of  conveyance,  in  a  quitclaim  deed, 
in  the  absence  of  fraud  or  intentional  mis- 
representation, where  the  terms  of  the  deed 
taken  together  show  that  the  instrument  is 
in  its  essence  a  quitclaim  with  no  warranty 
intended  except  as  against  the  grantors  and 


COVENANT,  I.  b. 


889 


tiieir  ewn  acts.     McDonough  v.  Martin,  88 
Ga.  675,  13  S.  E.  59,  18:  343 

11.  A  o«iveya«ce  mi  lota  to  a  railway  com- 
pany, '*f<ir  railway  purposes,"  is  not  to  be 
oonstrued  as  covenanting  that  the  street  on 
which  the  lots  abut,  to  the  center  line  there- 
of, may  be  used  for  such  purposes  while  it 
remains  a  street,  so  as  to  interfere  with  any 
easement  constituting  a  private  right  of 
property  Which  the  grantor  may  have  there- 
in, appurtenant  to  other  property  abutting 
on  the  same  street.  Lamm  v.  Chicago,  St. 
P.  M.  &  O.  R.  Co.  45  Minn.  71,  47  N.  W.  455, 

lU:  208 
Warranty. 
In  Deed  of  Trees,  see  Deeds,  32. 

12.  The  state  is  within  the  terms  of  a 
warranty  of  the  title  to  real  estrile  against 
"all  persons  whatsoever."  West  Coast  Mfg. 
&  I.  Co.  v.  West  Coast  Improv.  Co.  25  Wash. 
627,  CCi  Pac.  97,  62:  763 

13.  A  general  covenant  of  warranty  in  a 
deed  of  a  tract  of  land  will  extend  to  tide 
lands  visibly  within  the  limits  of  the  grant, 
the  paramount  title  to  which  at  the  time  of 
the  grant  is  in  the  state,  and  the  insertion 
of  the  words  "together  with  the  littoral, 
riparian,  and  shore  rights"  and  "the  tene- 
ments, hereditaments,  and  appurtenances 
thereunto  belonging,"  does  not  refer  to  such 
rights  merely  as  pertain  to  the  upland.      Id. 

14.  The  insertion  in  a  deed  of  a  tract  of 
land  which  includes  within  its  limits  tide 
lands  belonging  to  the  state,  of  the  clause, 
"and  also  the  estate,  right,  title,  and  inter- 
est at  law  and  in  equity  therein  and  there- 
to," does  not  restrict  the  covenant  of  war- 
ranty to  the  right,  title,  and  interest  which 
the  grantor  actually  has.  Id. 

15.  A  covenant  of  warranty  of  title  in  a 
deed  conveying  a  tract  of  land  on  which  Is 
situated  a  mill  and  dam  embraces  an  ease- 
ment as  to  ponded  water  occasioned  by  such 
dam  or  back  water  therefrom,  on  an  ad- 
joining tract  of  land  of  another  person,  and 
like  easements  necessary  and  incident  to  the 
free  use  and  beneficial  enjoyment  of  the 
mill  and  dam  conveyed,  although  such  ease- 
ments are  not  expressly  mentioned  in  the 
deed.'  Bowling  v.  Burton,  101  N.  C.  176.  7 
S.  E.  701,  2:  285 

16.  An  estate  to  which  the'  husband's  cov- 
enant of  warranty  can  attach  is  transferred 
where  he  joins  with  his  wife  in  a  deed  of 
land  of  which  neither  has  a  valid  title  in 
fact,  although  she  has  color  of  title,  of  which 
he  is  in  possession  while  his  wife  occupies 
tbe  premises  with  aim,  and  on  their  joint 
conveyance  he  delivers  the  possession  to  the 
grantee,  and  shares  in  the  purchase  money, 
— especially  where  his  covenant  is  not  only 
with  the  grantee,  but  with  her  "heirs  and 
assigns,"  Mygatt  v.  Coe,  142  N.  Y.  78,  36 
N.  E.  870,  24:  850 
As  to  encumbrances  and  assessments. 
Parol  Evidence  as  to  Encumbrance,  see  Evi- 
dence, 1079,  liI6. 

For  Editorial  Notes,  see  infra,  V.  §  4. 

17.  A  covenant  against  encumbrances  cov- 
ers encumbrances  unknown  to  the  purchas- 
er, as  well  as  those  known.  Burr  v.  La- 
master,  30  Neb.  688,  46  N.  W.  1015,       9:637 


18.  A  full  covenant  deed  protects  the 
grantee  against  an  easement  which  is  open, 
visible,  and  well-known  at  the  time  of  the 
conveyance,  except  in  the  case  of  a  highway. 
Huyck  V.  Andrews,  113  N.  Y.  81,  20  N.  E. 
581,  3:789 

19.  An  encumbrance,  within  the  terms  of 
a  covenant  against  encumbrances,  includes 
"every  right  to  or  interest  in  the  land,  to  the 
diminution  of  the  value  of  the  land,  but  con- 
sistent with  the  passage  of  the  fee  by  the 
conveyance." 

20.  A  parol  agreement  under  which  a  ten- 
ant is  in  possession  of  land  is  an  encum- 
brance covered  by  a  covenant  "against  all 
encumbrances  whatever."  Edwards  v.  Clark, 
83  Mich.  246,  47  N.  W.  112,  10:  659 

21.  Where  a  person  purchases  a  vacant  lot 
which  supports  the  half  of  the  wall  of  the 
building  erected  on  the  adjoining  lot,  and 
such  purchaser  is,  by  the  terms  of  a  previous 
party-wall  agreement  entered  into  by  his 
grantor,  obliged  to  pay  a  part  of  the  costs 
of  the  wall  in  order  to  use  it,  such  agree- 
ment and  wall  constitute  an  encumbrance. 
Burr  V.  Lamaster,  30  Neb.  688,  46  N.  W. 
1015,  9:  637 

2Ia.  A  contract  to  convey  land  free  and 
clear  from  all  encumbrances  does  not  require 
the  vendor  to  pay  assessments  thereafter 
made  for  local  improvements  in  advance  of 
the  execution  of  the  work,  as  such  assess- 
ments, although  encumbrances  in  a  strict 
sense,  are  not  emcumbrances  contemplated 
by  the  contract.  Gotthelf  v.  Stranahan,  138 
N.  Y.  345,  34  N.  E.  286,  20:  455 

22.  Sewer  and  street-grading  assessments 
are  not  within  the  terms  of  a  covenant  in  a 
mininw  lease  obligating  the  lessee  to  pay 
"all  United  States,  state,  and  local  taxes, 
duties,  and  imposts"  on  the  property.  Pette- 
bone  v.  Smith,  150  Pa.  118,  24  Atl.  693, 

17:  423 

23.  The  right  of  a  municipality  to  reas- 
sess the  cost  of  a  street  improvement  upon 
abutting  property  after  an  assessment  is  set 
aside  as  in  contravention  of  the  charter  is 
within  a  covenant  against  encumbrances 
in  a  conveyance  of  the  property,  made  sub- 
sequent to  the  improvement.  Green  v.  Tid- 
ball,  26  Wash.  338,  67  Pac.  84,  55:  879 

24.  A  provision  in  a  municipal  charter, 
that  assessments  for  street  improvements 
shall  become  enctimbrances  on  abutting 
property  only  after  the  roll  is  placed  in  the 
treasurer's  hands  for  collwtion,  does  not 
control  in  detemiining  liability  upon  a  cov- 
enant against  encumbrances  in  a  conveyance 
of  abutting  property,  made  after  an  im- 
provement for  which  it  is  subject  to  assess- 
ment has  been  completed.  Id. 

b.  Restricting  Use  of  Property. 

In  Dedication,  see  Dedication,  6. 

Release   from  Restrictions,   see   Easements, 

100. 
Restrictions  by   Condition    Subsequent,   see 

Real  Property,  9-17,  19,  33-35. 
For  Editorial  Notes,  see  infra,  V,  §  3. 

25.  Restrictions  and  prohibitions  as  to  the 
use  of  real  property  by  the  grantee  should 


886 


COVENANT.  I.  b. 


generally  be  resolved  in  favor  of  the  free 
use  of  the  propertv.  Hutchinson  v.  Ulrich, 
145  111.  336,  34  N.  E.  556,  21 :  391 

26.  A  change  of  circumstances  cannot  be 
considered  on  a  petition  at  law  under  the 
statute  to  ascertain  the  limits  of  a  restric- 
tion in  a  deed,  as  equitable  ground  for  not 
enforcing  it.  Welch  v.  Austin,  187  Mass. 
256.  72  N.  E.  972,  68:  189 

27.  A  condition  in  a  deed  of  a  small  parcel 
of  land  that  no  grain  shall  ever  be  handled 
on  the  land  grantea,  which  contains  no  fa- 
cilities for  handling  grain  at  the  time  of  the 
grant,  is  not  unreasonable  or  contrary  to 
public  policy.  Wakefield  v.  Van  Tassell.  202 
111.  41,  66  N.  E.  830,  65:  511 
As  to  Building. 

Other  Restrictions  as  to  Buildings,  see  Build- 
ings, 46,  47. 

In  Dedication,  see  Dedication,  24. 

Against  Obstructing  View,  see  Easements, 
56,  57. 

Creation  of  Conditional  Fee  by  Restriction 
as  to,  see  Real  Property,  34. 

See  also  infra,  47,  56,  57,  6*3,  114. 

28.  A  provision  in  a  deed  that  the  building 
to  be  erected  on  the  granted  premises  shall 
correspond  to  the  building  on  the  adjoining 
property  of  the  grantor  cannot  prolong  the 
duration  of  the  restriction  beyond  the  exist- 
ence of  the  house  so  built,  merely  because 
the  building  on  the  adjoining  property  con- 
tinues to  exist.  Welch  v.  Austin.  187  Mass. 
256,  72  N.  E.  972,  68:  189 

29.  A  provision  in  a  deed  restricting  build- 
ing on  a  lot  to  "a  single  dwelling"  must  be 
construed  to  mean  a  single  building  used  for 
a  dwelling,  and  does  not  prevent  tne  build- 
ing of  a  flat  or  apartment  house  thereon  to 
be  occupied  bv  more  than  one  family. 
Hutchinson  v.  tllrich,  145  111.  336.  34  N.  E. 
556,  21:391 

30.  A  modern  apartment  house  is  not 
within  a  covenant  against  the  erection,  upon 
certain  premises,  of  a  tenement  house,  which 
was  made  at  a  time  when  that  term  referred 
to  the  habitations  of  the  very  poor,  and  was 
associated  in  the  contract  with  other  things 
that  were  obviously  noxious,  noisome,  or 
deleterious.  Kitching  v.  Brown,  180  N.  Y. 
414,  73  N.  E.  241,  70:  742 

31.  A  covenant  that  the  "house"  on  a  lot 
conveyed  "stall  be  forever  hereafter  restrict- 
ed from  having  any  building  or  part  of  a 
building  attached  to  the  said  messuage 
thereon  erected"  more  than  ten  feet  high  is 
not  limited  to  the  house  or  building  then 
existing  on  the  land.  Landell  v.  Hamilton, 
175  Pa.  327,  34  Atl.  663,  34:   227 

32.  A  provision  in  a  lease,  that  the  lessee 
shall  not  build  at  the  rear  of  the  premises 
nearer  than  25  feet,  is  not  violated  by 
building  on  one  side  of  the  premises,  extend- 
ing beyond  the  rear  wall  of  the  old  buildmg 
but  not  extending  in  the  rear  of  the  leased 
premises.  Keating  v.  Springer,  146  111.  481, 
34  N.  E.  805,  22:  544 

33.  A  lease  providing  that  the  lessee  "shall 
not  build  at  the  rear  of  said  premises  nearer 
than  25  feet,  and  no  obstruction  higher  than 
6  feet  shall  be  placed  in  such  manner  as  to 
obstruct  light  to  said  premises,"  prohibits 


any  obstruction  higher  than  6  feet  in  any 
direction  from  said  premises,  which  wouia 
obstruct  light  to  them.  Id. 

34.  A  reservation  in  a  deed,  of  the  "free 
use  of  light  and  air,"  and  the  right  to  put 
windows  in  a  building  overlooking  all  the 
tract  if  a  building  is  erected  on  the  common 
line,  with  the  further  provision  giving  t"he 
right  to  both  parties  to  use  a  party  wall  for 
a  distance  of  24  feet  from  the  street,  has  the 
effect  to  prohibit  the  grantee  from  building 
on  the  premises  conveyed  more  than  24  feet 
from  tne  street.  Hagerty  v.  Lee  (N.  J.  Err. 
&  App.)  54  N.  J.  L.  580,  25  Atl.  319,     20:  631 

35.  A  basement  surmounted  by  a  balcony 
is  not  a  "usual  projection"  in  Boston,  within 
the  meaning  of  a  deed  requiring  the  front 
wall  of  a  building  to  be  set  back  20  feet  from 
the  street,  but  allowing  steps,  windows,  por- 
ticos, and  other  usual  projections  appurte- 
nant to  such  front  wall  within  certain  re- 
served spaces, — especially  where  bay  win- 
dows and  circular  or  octagon  fronts  are  ex- 
pressly restricted  within  definite  limits.  At- 
torney General  v,  Algonquin  Club,  53  Mass. 
447,  27  N.  E.  2,  11:500 

36.  Under  a  provision  in  a  deed  that  no 
baj'  window,  circular,  or  octagon  front,  shall 
be  built  within  20  feet  of  the  street,  unless 
its  horizontal  section  would  fall  within  a 
trapezoid  whose  base  on  the  front  wall  is 
not  more  than  seven  tenths  of  the  front  of 
the  building  or  more  than  18  feet  in  any 
case,  and  whose  side  lines  make  an  angle  of 
45  degrees  with  the  base:  and  that  each 
house  in  tne  block  shall  be  considered  a  sep- 
arate building  within  the  meaning  of  the 
limitation, — the  trapezoids  of  different  bay 
windows  cannot  overlap  each  other,  or  the 
sum  of  their  bases  exceed  seven  tenths  of 
the  whole  front  of  tlie  building;  but  the 
bases  of  such  trapezoids  may  overlap  upon 
a  portico  or  balcony.  Id. 

37.  A  merely  personal  right,  and  not  an 
easement  appurtenant,  was  created  by  an 
express  condition  in  a  deed  that  the  grantee, 
his  heirs  and  assigns,  should  never  erect  a 
building  nearer  the  street  than  the  one  then 
standing,  where  the  grantor,  who  then  occu- 
pied adjoining  premises  as  a  homestead,  was 
an  invalid,  who  usually  sat  at  a  window 
from  which  he  had  a  good  view  of  the  street, 
and  he  had  declared  during  the  negotiations 
that  he  did  not  wish  his  view  of  the  street 
from  that  window  cut  off,  and  should  have 
a  clause  in  the  deed  to  prevent  it.  Clapp  v. 
Wilder,  176  Mass.  332,  57  N.  E.  692.  50:  120 

38.  Provisions  in  a  deed  that  the  house 
shall  set  back  a  certain  distance  from  the 
street,  and  not  extend  beyond  a  specified 
depth,  so  as  to  correspond  to  grantor's  ad- 
joining house,  and  that  the  elevation,  mate- 
rial, and  plan  shall  also  correspond  to  such 
house  so  as  to  form  one  building,  are  not 
personal  to  the  parties,  but  apply  in  favor 
of  their  successors  in  title  so  long  as  the 
house  first  built  on  the  granted  premises 
stands.  Welch  v,  Austin,  187  Mass.  256,  72 
N.  E.  972,  68:  189 

39.  The  following  clause  in  a  deed  "Pro- 
vided always,  and  these  presents  are  upon 
this  express  condition,"  that  no  part  of  the 


COVENANT,  II.  a,  b. 


887 


granted  premises  shall  ever  be  used  or  occu- 
pied as  a  tavern, — will  be  construed  as  a 
covenant  running  with  the  land,  and  not  as 
a  condition  subsequent  subjecting  the  estate 
to  forfeiture,  when  no  right  to  re-enter  is 
reserved,  where  no  such  interest  appears  to 
have  existed  in  the  grantors  as  demanded  or 
made  imjx)rtant  the  reservation  of  such  a 
condition,  and  the  obvious  and  only  purpose 
of  its  insertion  was  to  protect  l/he  adjacent 
property,  and  where  it  appears  that  the  of- 
fice of  the  clause  is  simply  to  restrain  the 
generality  of  the  preceding  clause.  Post  v. 
Weil,  115  N.  Y.  361,  22  ^'.  E.  145,        5:  422 

40.  A  condition  in  a  deed  that  the  land 
shall  not  be  used  or  occupied  as  a  tavern 
will  be  construed  as  a  restriction  created 
for  the  benefit  of  the  adjoining  property,  en- 
forceable as  a  covenant  running  with  the 
land,  and  not  as  being  a  condition  subse- 
quent, imposed  for  the  personal  benefit  of 
the  grantors  and  their  heirs.  Id. 

41.  An  undertaking  establishment  in 
which  human  dead  bodies  are  prepared  for 
burial  or  other  sepulture,  and  sometimes 
subject  to  embalming  and  pKJst-mortem  ex- 
amination, is  a  business  "injurious  or  offen- 
sive to  the  neighboring  inhabitants,"  within 
the  terms  of  a  restrictive  agreement,  al- 
though it  may  not  constitute  a  legal  nui- 
sance. Rowland  v.  Miller,  139  N.  Y.  93,  34 
N.  E.  765,  22:  182 


n.  Breach;   Enforcement;   Who  Liable, 
a.  In  General. 

Joining  Claim  for  Reformation  with  one  for 
Breach,  see  Action  or  Suit,  97. 

When  Liability  Accrues,  see  Bankruptcy,  31. 

Damages  for  Breach,  as  Fixed  Liability,  see 
Bankruptcy,  33. 

Measure  of  Damages  for  Breach,  see  Dam- 
ages, 8,  9.  114-119.  653. 

Estoppel  to  Rely  on  Breach,  see  Ejectment, 
31. 

Burden  of  Showing  Surrender  to  Paramount 
Title,  see  Evidence,  729. 

Evidence  to  Show  Breach,  see  Evidence,  865. 

Evidence  as  to  Damages  by  Breach,  see  Evi- 
dence, 2035. 

Recovery  for  Improvements  on  Breach  of, 
see  Improvements,  9. 

Remedy  of  Covenant  in  Lease,  see  Landlord 
and  Tenant,  14. 

Running  of  Limitations  in  Case  of,  see  Limi- 
tation of  Actions.  132,  133,  205. 

Striking  out  Allegations  in  Action  for 
Breach,  see  Pleading,  174. 

For  Editorial  Notes,  see  infra,  V.  §§  3,  7. 

42.  Payment  of  taxes  after  they  would 
have  been  barred  except  for  suit^  instituted 
therefor,  and  after  the  suits  have  been  de- 
layed so  long  as  to  defeat  the  lien  acquired 
by  them,  does  not  entitle  a  grantee  to  re- 
cover on  covenants  of  warranty  and  against 
encumbrances.  Robinson  v.  Bierce,  102 
Tenn.  428,  52  S.  W.  992,  47:  275 

43.  It  is  not  sufficient  for  t(he  enforcement 
in  equity  of  a  covenant  that  it  affects  the 


use  of  the  land  or  its  mode  of  enjoyment  in 
a  collateral  way,  but  it  must  relate  to  or 
concern  the  land  or  its  us6.  Kettle  River 
R.  Co.  v.  Eastern  R.  Co.  41  Minn.  461,  43  N. 
W.  469,  6:  HI 

44.  No  damages  can  be  recovered  for 
breach  of- a  covenant  of  warranty  in  a  deed 
given  in  consideration  of  love  and  afi'ection, 
under  a  statute  limiting  the  recovery  in 
case  of  breach  of  covenants  of  warranty  to 
the  amount  of  purchase  money  paid,  with 
interest  thereon.  McClure  v.  Melton,  34  S. 
C.  377,  13  S.  E.  615,  13:  723 
Waiver  of  breach;  loss  of  right  to  enforce. 

45.  Failure  to  complete  construction  work 
as  soon  as  possible,  if  a  breach  of  the  cove- 
nant for  its  performance,  is  waived  by  pro- 
ceeding against  the  covenantor  for  failure 
to  replace  and  complete  the  work  after  the 
building  has  been  destroyed  by  fire.  Krause 
V.  Crothersville  School  Trustees,  162  Ind. 
278,  70  N.  E.  264,  65:111 

46.  The  right  of  action  against  a  grantee 
in  a  deed  poll,  for  breach  of  his  implied  un- 
dertaking to  perform  a  condition  contained 
in  the  deed,  such  as  maintaining  fences,  is 
extinguished  on  his  conveyance  of  the  fee 
to  another.  Hickey  v.  Lake  fcihore  &  M.  S. 
R.  Co.  51  Ohio  St.  40,  36  N.  E.  672, 

23:  396 

47.  Building  along  the  division  line  and 
partly  on  each  lot  a  solid  wall  higher  than 
a  covenant  allows  the  servient  owner  to  build, 
will  prevent  the  dominant  owner,  wlio  builds 
it,  from  enforcing  the  covenant  in  equity  as 
to  the  space  below  the  top  of  the  wall,  but 
will  not  absolutely  terminate  the  covenant. 
Landell  v.  Hamilton,  175  Pa.  327,  34  Atl, 
663,  34:  227 
Canditions  precedent  to  enforcement. 

48.  Tender  back  of  the  consideration  mon- 
ey is  not  a  prerequisite  to  re-entry  for  con- 
dition broken,  under  the  deed  authorizing 
such  re-entry  on  failure  to  perform  the  con- 
dition. Bouvier  v.  Baltimore  &  N.  Y.  R.  Co. 
(N.  J.  Err.  &  App.)  67  N.  J.  L.  281,  51  Atl. 
781,  60:  750 
Necessary  provisions  in  decree  for  breach. 

49.  Restoration  of  possession  is  an  indis- 
pensaole  ingredient  of  a  decree  in  equity  in 
favor  of  a  vendee  for  breach  of  a  covenant 
of  seisin  made  by  an  outstanding  contingent 
remainder,  where  his  deed  gave  him  at  least 
a  life  estate,  and  he  has  had  the  benefit  of 
possession.  Brannon  v,  Curtis,  98  Tenn.  153, 
38  S.  W.  1075,  69:  760 

b.  What  Constitutes  a  Breach. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

50.  A  covenant  against  encumbrances  is 
broken  at  the  instant  a  conveyance  is  made, 
by  an  outstnidine  ensement  of  anv  kind. 
Huyck  V.  Andrews,  113  N.  Y.  81,  20  N.  E.  581, 

3:  789 
Eviction. 

Eviction  of  Tenant,  see  Landlord  -and  Ten- 
ant, 73. 
See  also  infra,  62,  81. 

51.  An  eviction,  either  actual  or  construc- 
tive, is  necessary  before  a  cause  of  action 


888 


COVENANT,    II.  c.  1. 


arises  on  a  covenant  of  warranty.    Wight  v. 
Gottschalk    (Tenn.  Cii.)  48  S.  W.   140, 

43:  189 

52.  A  judgment  against  a  covenantee  in 
possession  upon  foreclosure  of  a  lien  created 
prior  to  the  covenant,  rendered  after  notice 
to  the  warrantor  to  appear  and  defend,  is 
a  constructive  eviction  giving  a  right  of  ac- 
tion upon  the  covenant.  Collier  v.  Cowger, 
52  Ark.  322,  12  S.  W.  702,  6:  107 

53.  An  eviction  constituting  a  breach  of 
warranty  of  title  to  real  estate  is  effected 
by  the  assertion  of  paramount  title  by  the 
state,  which  the  covenantee  is  compelled  to 
purchase  to  save  improvements  which  he  has 
placed  on  the  land.  West  Coast  Mfg.  &  I. 
Co.  V.  West  Coast  Improv.  Co.  25  Wash. 
627,  66  Pac.  97,  62:  763 

54.  To  constitute  a  breach  of  a  covenant 
for  quiet  enjoyment  (or  warranty,  which  is 
in  fact  equivalent),  there  must  be  a  union 
of  acts  of  disturbance  and  lawful  title. 
Barry  v.  Guild,  126  111.  439,  18  N.  E.  759, 

2:  334 

55.  Testimony  of  a  person  that  he  "saw 
evidence  of  the  possession  of  the  third  party 
in  the  shape  of  a  derrick  and  tool-house  sit- 
uated on  the  land,  operated  by  a  stone  com- 
pany," where  it  does  not  show  whether  the 
stone  company  had  or  claimed  possession  of 
1  acre  or  20,  or  that  it  claimed  to  hold  under 
lawful  title;  and  testimony  of  the  vendee's 
agent,  "that  he  never  could  get  possession," 
without  stating  what  efforts  were  made; 
where  it  does  not  appear  that  any  of  the 
land  is  occupied  except  by  the  derrick  and 
tool-house, — is  not  sufficient  to  show  a 
breach  of  covenant  of  quiet  enjoyment  of  a 
tract  of  20  acres  of  land.  Id. 
Restrictions  as  to  use  of  property. 
Restrictions  in  Dedication  of  Land,  see  Ded- 
ication, 6. 

See  also  supra,  32,  47 ;  infra,  63-65. 

56.  An  "apartment  house,"  constructed  for 
residence  purposes  only,  is  not  a  breach  of  a 
condition  in  a  deed  against  using  the  prop- 
erty except  for  "residence  purposes."  Mc- 
Murtrv  v.  Phillips  Invest.  Co.  103  Ky.  308, 
45  S.  W.  96,  40:  489 

57.  A  covenant  in  a  conveyance  of  land  for 
a  college  campus,  that  it  shall  be  devoted  ex- 
clusively as  a  part  of  the  campus,  and  that 
no  buildings  shall  be  erected  thereon  except 
those  devoted  to  university  purposes,  is  not 
broken  by  the  placing  thereon  of  lumber, 
tools,  sheds,  derricks,  engines,  and  oil  tankg 
for  the  exploration  for  oil  supposed  to  be 
beneath  the  surface,  where  such  occupation 
will  probably  be  of  a  temporary  character, 
even  if  oil  is  found,  and  the  general  pur- 
poses of  the  grant  may  be  materially  ad- 
vanced by  the  pecuniary  results  of  the  de- 
velopment. Los  Angeles  University  v. 
Swarth,  46  C.  C.  A.  647,  107  Fed.  798, 

54:  262 

c.  Who  May  Enforce. 
1.  In  General. 

Remote  Grantee,  see  Husband  and  Wife,  130. 
Liability  to  Contribute  as  Affecting  Right 
of  Action,  see  Parties,  27. 


See  also  Parties,  65. 

For  Editorial  Notes,  see  infra,  V."§  7. 

58.  A  vendee  can  claim  the  benefit  of  no 
covenants  contained  in  the  deed  to  his  ven- 
dor except  such  as  attach  to  and  run  witlh 
the  land, — namely,  for  quiet  enjoyment  and 
warranty.  Barry  v.  Guild,  126  111.  439,  18 
N.  E.  759,  2:  334 

59.  The  covenant  of  seisin,  if  broken  at  all, 
is  broken  when  made,  and  becomes  a  non- 
assignable chose  in  action  upon  which  no  one 
can  sue  but  the  grantee  or  his  personal  rep- 
resentative. Clement  v.  National  Bank  of 
Rutland,  61  Vt.  298,  17  Atl.  717,         4:  425 

60.  Where  a  man  who  has  made  a  deed 
with  covenants,  intending  that  an  undivided 
part  of  the  land  conveyed  should  be  hem 
merely  as  security,  obtains  from  a  subse- 
quent grantee  a  deed  of  such  undivided  part, 
made,  at  his  request,  to  a  stranger  to  the 
former  deeds,  the  latter  deed  has  the  same 
legal  effect  as  if  made  by  the  original  gran- 
tor himself;  and  the  vendee  therein  is  not 
entitled  to  the  benefit  of  any  covenants  con- 
tained in  the  original  deed,  by  the  grantor. 
Barry  v.  Guild,  126  111.  439,  18  N.  E.  759, 

2:  334 

61.  Ihe  reconveyance  of  land  deeded  with 
a  covenant  of  warranty  by  way  of  mortgage 
containing  like  covenants  will  not  prevent 
an  action  on  the  original  covenants  in  favor 
of  one  who  purchases  at  the  foreclosure  sale. 
Wiggins  V.  Pender,  132  N.  C.  628,  44  S.  E. 
362,  61 :  772 

62.  If  a  covenant  of  warranty  is  broken 
by  eviction  before  grantee  conveys,  and  the 
assignor  is  liable  to  the  assignee,  an3  dis- 
charges that  liability  before  suit  brought, 
the  assignor  may  maintain  an  action  upon 
the  covenant.  Clement  v.  National  Bank  of 
Rutland,  61  Vt.  298,  17  Atl.  717,  4:  425 
Restrictions  on  use  of  property. 

By  Injunction,  see  Injunction,  104,  105. 
See  also  Specific  Performance,  36. 

63.  A  covenant  with  a  grantor  to  a  pur- 
chaser of  one  of  several  lots  in  a  tract,  bind- 
ing lae  grantor  to  include  certain  building 
restrictions  in  deeds  of  the  other  lots,  inures 
to  the  benefit  of  subsequent  purchasers  of 
such  lots,  and  entitles  them  to  enforce  such 
building  restrictions  against  one  of  such 
grantees  who  violates  them.  Hutchinson  v. 
Ulrich,  145  111.  336,  34  N.  E.  556,       21:  391 

64.  A  restriction  as  to  the  building  line, 
inserted  in  a  deed,  cannot  inure  to  the  bene- 
fit of  a  prior  grantee  of  another  lot  on  the 
same  street,  which  is  conveyed  subject  to  the 
same  restriction,  when  the  grantor  did  not 
impose  any  servitude  upon  the  land  he  re- 
tained and  the  restrictions  were  not  part  of 
a  general  plan  or  scheme  for  the  benefit  of 
all  the  purchasers.  Summers  v.  Beeler,  90 
Md.  474,  45  Atl.  19,  48:  54 

65-67.  A  general  plan  or  scheme  for  the 
benefit  of  all  the  purchasers  of  lots  sold  on 
the  same  street  as  shown  by  a  recorded  plat 
does  not  appear  from  the  fact  that  most  of 
the  lots  are  sold  subject  to  the  same  re- 
striction as  to  building  line,  where  no  re- 
strictions are  shown  by  the  plat,  and  none 
are  imposed  on  some  of  the  lots  that  are 


COVENANT,  II.  c.  2,  d,  1. 


iret  sold,  while  purchasers  of  some  of  the 
other  lots  have  violated  the  restrictions  up- 
on them,  and  such  violations  have  not  been 
resisted  by  other  purchasers.  Id. 

2.  Covenants  Running  with  the  Land. 

Subsequent  grantees. 

(58.  I'rivity  of  contract  alone  is  insufficient 
to  carry  to  subsequent  owners  of  the  prop- 
erty the  benefit  of  a  covenant  of  warranty 
or  of  quiet  enjoyment.  Mygatt  v.  Coe,  124 
N.  Y.  212,  20  N.  E.  611,  11:  046 

69.  Privity  of  estate,  within  the  meaning 
of  the  feudal  law, — mutuality, — need  not  ex- 
ist between  covenantor  and  covenantee  or 
his  successors  in  interest,  to  carry  a  cove- 
nant of  warranty  to  subsequent  ^grantees; 
but,  unless  there  is  either  mutuality  or  suc- 
cession of  interest,  this  covenant  will  not 
run  with  the  land.  Id. 

70.  A  remote  grantee  connected  with  the 
immediate  grantee  by  an  unbroken  chain  of 
warranty  deeds  has  all  the  rights  of  the 
latter  to  sue  the  original  grantor  for  the  re- 
moval from  the  real  estate  of  a  barn  which 
passed  under  the  original  deed.  Leonard  v. 
Clough,    133  N.   Y.   292,  31   N.   E.  93, 

16:  305 

71.  A  conveyance  of  real  estate  by  one 
who  has  acquired  no  title  and  has  never  been 
in  possession,  to  another  who  does  not  take 
possession,  will  not  carry  the  covenants  in 
the  deeds  from  remote  grantors  to  subse- 
quent purchasers  from  such  grantee.  Wal- 
lace V.  Pereles,  109  Wis.  316,  85  N.  W.  371, 

53:  644 

72.  Covenants  of  warranty  and  of  quiet 
enjoyment,  entered  into  jointly  by  the  owner 
of  the  fee  and  her  husband,  who  is  a  stran- 
ger to  the  title,  do  not  run  with  the  land  as 
against  him,  and  are  not  available  against 
him  in  favor  of  a  subsequent  grantee  who 
holds  no  assignment  of  the  cause  of  action 
arising  from  the  breach.  Mygatt  v.  Coe,  124 
N.  Y.  212,  26  N.  E.  611,  11:646 

73.  A  covenant  of  general  warranty  of 
title,  in  a  deed  of  marked  trees  described  as 
standing  on  certain  land  on  which  a  lien  is 
given  to  secure  the  warranty,  though  some 
of  the  trees  are  in  fact  on  other  land,  is  not 
a  covenant  running  with  the  trees,  on  which 
the  grantor  will  be  liable  to  a  subsequent 
purchaser  by  deed  from -the  grantee.  Asher 
Lumber  Co.  v.  Cornell,  22  Ky.  L.  Rep.  569, 
58  S.  W.  438,  .56:  672 

74.  A  stipulation  in  a  deed  of  land  to  a 
railroad  company,  that  the  company  shall 
construct  and  maintain  a  fence  along  its 
right  of  way  where  land  is  used  solely  for 
pasturage  and  enclose<l  on  the  other  side,  so 
long  as  it  is  used  exclusively  for  pasturage, 
is  not  a  covenant  running  with  the  land,  and 
cannot  be  enforced  by  a  subsequent  owner  of 
such  land.  Gulf.  C.  &  S.  F.  R.  Co.  v.  Smith, 
72  Tex.   122,  9  S.  W.   865,  *        2:  281 

75.  Where  the  right  to  the  use  of  the 
waters  of  a  stream  is  fixed  by  a  covenant  be- 
tween the  riparian  owners,  made  for  the 
benefit  of  their  respective  heirs  or  grantees. 
the  fact  that  a  subsequent  grantee  is  the 
grantee  of  a  part  only  of  the  lands  of  one 


of  the  parties  to  which  the  covenant  is  ap- 
plied does  not  impair  his  rights  under  the 
covenant  as  a  riparian  owner.  Horn  v.  Mil- 
ler, 136  Pa.  640,  20  Atl.  706,  9:  810 
Assignees. 

70.  A  promise  by  an  adjoining  lot  owner 
to  the  builder  of  a  party  wall,  to  compensate 
him  for  the  use  thereof,  is  personal  to  the 
promisee,  and  not  a  covenant  running  with 
his  land;  and  where  the  builder's  lot  is  con- 
veyed to  one  party,  and  the  party-wall 
agreement  assigned  to  another,  the  latter  is 
entitled  to  the  sum  due  under  such  agree- 
ment. Cook  v.  Paul,  4  Neb.  (Unof.)  93,  93 
N.   W.  430,  66:  673 

77.  An  assignee  is  not  deprived  of  the  ben- 
efit of  a  covenant  of  warranty  in  a  convey- 
ance of  real  estate  by  the  fact  that  he  is 
not  named  in  the  covenant,  if  assigns  are 
named  in  the  habendum  clause  of  the  deed. 
Wiggins  V.  Pender,  132  N.  C.  628,  44  S.  E. 
362,  61:772 

78.  Assignees  of  one  who  has  taken  a 
deed  to  real  estate  with  covenant  of  warran- 
ty which  does  not  include  assigns  cannot 
rely  on  the  covenant  to  prevent  the  original 
grantor  from  reclaiming  the  land  because  of 
the  invalidity  of  his  grant;  at  least  they 
cannot  if  there  was  no  assignment  of  the 
benefit  of  the  covenant  to  them.  Smith  v. 
Ingram,  130  N.  C.  100,  40  S.  E.  984,      61:  878 

79.  A  covenant  by  a  lessee  of  a  part  of  a 
railroad  right  of  way  for  warehouse  pur- 
poses, binding  him  to  hold  the  lessor  harm- 
less for  losses,  by  whomsoever  claimed,  aris- 
ing out  of  the  destruction  of  property  on 
the  leased  premises  by  fires  set  by  the  les- 
sor's negligence,  with  a  stipulation  that  the 
covenant  shall  be  binding  upon  the  assigns 
of  both  parties,  will  pass  to  a  transferee  of 
the  railroad  propei'ty  and  of  the  lease,  so 
as  to  give  the  latter  the  same  right  to  en- 
force the  covenant  which  the  original  lessor 
had.  Northern  P.  R.  Co.  v.  McClure,  9  N.  D. 
73,  81N.  W.  52,  47:149 
Purchasers  at  judicial  sale. 

80.  Purchasers  at  a  foreclosure  sale  are 
in  privity  with  the  mortgagor's  grantor  so 
as  to  be  able  to  maintain  an  action  against 
him  for  breach  of  the  covenants  in  his  deed. 
Mygatt  v.  Coe,  142  N.  Y.  78,  36  N.  E.  870, 

24:  850 

81.  A  purchaser  of  lands  at  a  judicial  sale, 
although  receiving  no  covenants  of  warranty, 
may  maintain  an  action  upon  the  covenants 
in  the  deed  to  the  person  for  whose  liability 
the  property  was  sold,  in  case  of  an  eviction 
by  title  paramount.  Thomas  v.  Bland,  91 
Ky.  1,  14  S.  W.  955,  11:  240 

d.  Who  Liable  or  Bound. 
1.  In  General. 

On  implied  covenant. 

82.  A  grantor  is  personally  bound  by  cov- 
enants implied,  under  the  Missouri  statute, 
by  the  use  of  the  words  "bargain  and  sale 
and  grant"  in  a  deed  assuming  to  convey  in 
her  own  right  and  as  guardian,  where  she 
had  no  authority  to  make  the  convevance. 
Foote  V.  Clark,  102  Mo.  394,  14  S.  W.  981. 

II:  861 


890 


COVENANT,  II.  d,  2. 


Administrator  of  covenantor. 

83.  That  no  real  assets  had  descended  to 
the  heirs  of  one  who  warranted  the  title  to 
real  estate  will  not  prevent  the  recovery  of 
a  judgment  against  his  administrator  for 
breach  of  the  covenant.  Wiggins  v.  Pender, 
132  N.  C.  628,  44  S.  E.  362,  61:  772 

2.  Covenants  Running  with  the  Land. 

Covenantor. 

See  also  supra,  72. 

84.  An  action  for  reformation  of  a  deed 
as  to  the  description  of  the  property,  as  well 
as  for  damages  for  breach  of  covenant,  of 
warranty,  may  be  brought  against  the  re- 
mote grantor  who  conveyed  to  plaintiflPs 
grantor  with  the  same  covenants  that  were 
contained  in  the  plaintiflF's  deed.  Butler  v. 
Barnes,  60  Conn.  170,  21  Atl.  419,  12:  273 
Grantee. 

85.  The  intention  of  the  parties  to  a  cov- 
fnant  respecting  real  property  is  the  control- 
ling element  in  determining — at  least  on  a 
bill  of  equity — whether  or  not  the  covenant 
shall  bind  subsequent  owners  of  the  proper- 
ty. Bald  Eagle  Valley  R.  Co.  v.  Nittany 
Valley  R.  Co.  171^Pa.  284,  33  Atl.  239, 

29:  423 

86.  A  covenant  or  stipulation  inserted  in 
a  deed  poll  binds  the  grantee,  his  heirs, 
and  assigns,  where  it  relates  to  the  prem- 
ises conveyed.  Hagerty  v.  Lee  (N.  J.  Err. 
&  App.)   54  N.  J.  L.  580,  25  Atl.  319. 

20:  631 

87.  Covenants  relating  to  land  or  its  mode 
of  use  or  enjoyment  may  be  enforced 
against  grantees  with  notice,  although  there 
is  no  privity  of  estate,  and  although  thej* 
are  not  such  as,  in  strict  legal  contem- 
plation, run  with  the  land.  Kettle  River  R. 
Co.  V.  Eastern  R.  Co.  41  Minn.  461,  43  X. 
W.  469,  6:  111 

88.  Covenants  in  a  deed  of  submerged  land 
l)etween  low-water  mark  and  an  established 
dock  line  are  binding  upon  subsequent  gran- 
tees of  the  upland  from  the  same  grantor. 
Miller  V.  Mendenhall,  43  Minn.  95,  44  N.  W. 
1141,  8:  89 

89.  A  covenant  on  the  part  of  a  vendor  of 
land,  which  forms  part  of  the  consideration 
of  the  grant,  to  open  a  way  through  an- 
other tract  which  he  does  not  at  the  time 
own,  but  contemplates  purchasing,  does  not 
run  with  the  latter  tract  after  it  comes  into 
possession  of  the  vendor;  and  it  cannot, 
therefore,  be  enforced  against  his  grantee. 
Houston  V.  Zahm,  44  Or.  610,  76  Pac.  641. 

65:  799 

90.  A  personal  covenant  on  the  part  of  a 
landowner  to  locate  a  way  across  the  land 
is  not  binding  upon  his  grantee  without  no- 
tice. Id. 

91.  A  covenant  to  repair  a  roof,  made  by 
a  reversioner  alone  without  the  joinder 
therein  of  a  life  tenant,  although  both  join 
in  conveying  part  of  the  building  covered 
by  the  roof,  does  notirun  with  the  life  es- 
tate, and  therefore  so  long  as  the  life  es- 
tate is  outstanding  their  subsequent  gran- 
tees under  joint  oonvpA'ances  of  other  por- 
tions of  the  buildina;  hold  possession  under 
the  life  estate  so  that  the  covenant  of  the  re- 


versioner does  not  operate  upon  them,  and 
the  charge  upon  them  for  the  maintenance 
of  the  roof  can  be  only  for  an  equitable 
share  of  the  cost.  Rochester  Lodge  No.  21, 
A.  F.  &  A.  M.  V.  Graham,  65  Minn.  457,  68 
N.  W.  79,  37:404 

92.  An  undertaking  of  a  grantee  in  a  deed 
poll  to  perform  a  condition  therein  ex- 
pressed, such  as  to  maintain  fences,  will  run 
with  the  land  and  become  obligatory  upon 
subsequent  purchasers.  Hickey  v.  Lake 
Shore  &  M.  S.  R.  Co.  51  Ohio  St.  40,  36  N.  E. 
672,  23:  396 

93.  A  covenant  in  a  deed  to  a  railroad 
company,  by  which  the  grantors  agree  to 
build  a  fence  along  the  railroad,  "or  not  hold 
such  railroad  responsible  for  any  damage 
done  to  stock  belonging  to  us,"  without  any 
mention  of  assigns,  is  personal  to  the  grant- 
ors, binding  them  only,  and  does  not  run 
with  the  land.  Brown  v.  Southern  P.  Co. 
36  Or.  128,  58  Pac.   1104,  47:409 

94.  A  purchaser  of  land  through  which  a 
railroad  runs  is  not  bound  by  his  vendor's 
agreement  to  fence  the  railroad,  of  which  he- 
had  no  actual  notice,  and  which  was  not  re- 
corded. Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Bos- 
worth,  46  Ohio  St.  81,  18  N.  E.  533,      2:  199 

95.  A  purchaser,  at  a  foreclosure  sale,  of 
a  railroad  company's  interest  under  a  deed 
granting  it  a  right  of  way  over  certain 
lands,  in  which  is  incorporated,  as  part  of 
the  consideration  therefor,  an  agreement  by 
the  company  to  build  a  fence,  is  bound  to 
carry  out  the  agreement:  and  its  liability  to 
do  so  may  be  enforced  by  a  subsequent 
grantee  of  the  fee  in  an  action  of  covenant, 
although  the  company  merely  accepted  the 
deed  without  acknowledging  it.  Midland  R. 
Co.  v.  Fisher,  125  Ind.  19,  24  N.  E.  756, 

8:  604 

96.  A  covenant  in  a  deed  of  land  for  a 
railroad  right  of  way,  that  certain  trains 
shall  be  run  on  the  road  to  be  built  thereon, 
which  is  the  chief  consideration  of  the  con- 
veyance, and  in  default  of  which  for  six 
months  a  forfeiture  is  provided,  is  a  cove- 
nant running  with  the  land,  on  which  an  ac- 
tion may  be  maintained  against  a  subse- 
quent purchaser  of  the  railroad  who  fails 
to  run  such  trains,  notwithstanding  the  fact 
that  the  covenant  had  been  broken  by  the 
original  grantee  before  such  transfer,  and 
although  the  covenant  does  not  expressly 
refer  to  assigns.  Dotv  v.  Chattanooga  Union 
R.  Co.  103  Tenn.  564,  53  S.  W.  944,       48:  160 

97.  An  agreement  by  an  adjoining  owner 
to  pay  for  a  share  of  a  party  wall  when  he 
should  have  occasion  to  use  it  does  not  run 
with  the  land,  and  does  not  bind  a  purchaser, 
even  if  he  has  notice  of  it.  Nalle  v.  Paggi 
(Tex.)   (Not  to  be  Rep.)  9  S.  W.  2055,    1:  33 

98.  A  promise  to  pay  a  share  of  the  cost 
of  a  party  wall  when  it  is  used,  made  by  a 
grantee  for  himself,  his  heirs,  and  assigns 
to  a  grantor  who  built  the  wall,  but  had 
previouslj'  sold  the  adjoining  lot,  does  not 
run  with  the  land  so  as  to  bind  one  who 
subsequently  acquires  both  lots  and  makes 
use  of  the  party  wall  in  erecting  a  new 
building  on  them.  Lincoln  v.  Barrage,  177 
Mass.  378,  59  N.  E.  67,  52:  110 


COVENANT,  III. 


891 


99.  Failure  to  refer  in  a  deed  to  a  covenant 
binding  a  grantor  to  pay  part  of  the  cost  of 
a  party  wall  on  which  he  has  commenced 
to  erect  a  building  will  not  relieve  the  gran- 
tee from  liability.  Mott  v.  Oppenheinier,  135 
N.  Y.  312,  31  N.  E.  1097,  17:  409 

100.  An  obligation  in  the  nature  of  a  serv- 
itude upon  an  estate  conveyed  with  a  water 
privilege  may  be  enforced,  without  any  per- 
sonal obligation  of  the  owner,  under  a  stip- 
ulation that  the  grantee,  his  heirs  and  as- 
signs, shall  pay  a  certain  part  of  the  sums 
paid  for  flowage  or  damages  to  the  pi'oprie- 
tors  of  land  above  a  reservoir.  Whittenton 
Mfg.  Co.  v.  Staples,  104  Muss.  319,  41  N.  E. 
441,  29:  500 

101.  A  covenant  by  and  between  owners 
of  adjacent  lands,  as  to  the  use  S,nd  enjoy- 
ment by  the  respective  parties  of  the  waters 
of  a  stream  to  which  they  are  severally  en- 
titled, made  for  the  mutual  benefit  of  them- 
selves, their  heirs,  and  grantees,  runs  with 
the  land,  and  binds  not  only  the  contracting 
parties,  but  also  their  heirs  and  grantees, 
although  in  subsequent  deeds  of  the  respec- 
tive premises  no  mention  is  made  of  such 
covenant,  or  of  the  rights  accruing  there- 
from. Horn  V.  Miller,  136  Pa.  &40,  20  Atl. 
706,  9:  810 

102.  An  agreement  between  lot  owners  on 
the  west  side  and  owning  to  the  thread  of  a 
tstream,  to  share  the  water  power  appurte- 
nant to  lots  on  the  east  side  bought  by  them 
in  common  among  themselves  in  certain 
proportions,  to  be  used  on  the  west-side  lots, 
no  one  conveying  to  any  other  any  interest 
in  his  independent  estate  in  the  west-side 
lots,  although  binding  as  a  personal  covenant 
upon  any  of  such  owners  who  may  subse- 
quently purchase  lots  on  the  east  side  of  the 
stream,  to  share  the  water-power  thus  ac- 
quired with  the  other  west-side  owners,  yet, 
not  being  a  covenant  running  with  the  land, 
does  not  bind  their  grantees  of  east-side  lots, 
who  were  not  parties  and  did  not  purchase 
subject  to  the  agreement,  or  strip  the  east- 
side  lots  of  their  natui'al  water  rights.  Law- 
rence V.  Whitnev.  115  N.  Y.  410,  22  N.  E.  174, 

5:  417 


ni.  Running  with  the  Land. 

Who  May  Enforce,  see  supra,  II.  c,  2. 
Who  Bound  by,  see  supra,  II.  d,  2. 
Covenant  in  Lease,  see  Landlord  and  Tenant, 

17. 
See  also  supra.  37-40. 
For  Editorial  Notes,  see  infra,  V.  §  6. 

103.  The  test  in  equity  to  determine 
whether  a  covenant  in  a  deed  runs  with  the 
land  is  the  intention  of  the  parties.  Landell 
V.  Hamilton.   175  Pa.  327,  34  Atl.  663, 

34:  227 

104.  A  covenant  cannot  run  with  the  land, 
in  the  technical  meaning  of  the  word,  unless 
it  can  run  with  it  at  law.  Middletown  v. 
Newport  Hospital,  16  R.  I.  319,  15  Atl.  800, 

1:  191 

105.  A  covenant  of  indemnity  by  a  lessee 
against  damages  or  claims  for  losses  or  in- 


jury suffered  to  property  on  the  leased  prem- 
ises, by  fires  set  by  the  lessor's  engines,  is 
directly  connected  with  the  estate  and  with- 
in the  meaning  of  Wis.  Rev.  Codes,  §§  3784- 
3787,  providing  that  certain  specified  cove- 
nants shall  run  with  the  land,  and  extending 
the  provisions  to  covenants  "appurtenant  to 
such  estates,"  covenants  "for  the  direct  ben- 
efit of  the  property  or  some  part  of  it,"  and 
those  which  are  "incidental  thereto."  North- 
em  P.  R.  Co.  V.  McCIure,  9  N.  D.  73,  81  N, 
W.  52,  47:  149 

106.  Where  a  deed  is  made  by  a  town, 
signed  and  sealed  by  the  town  clerk,  a  bond 
by  the  grantee  running  to  the  town  treasur- 
er, to  secure  certain  privileges  to  the  inhab- 
itants of  the  town,  is  a  mere  personal  obli- 
gation, and  not  a  covenant  running  with  the 
land.  Middletown  v.  Newport  Hospital,  16 
R.  I.  319,  15  Atl.  800,  1:  191 

107.  A  covenant  by  a  landowner  to  ren- 
der to  another  one  eighth  of  the  mineral 
raised  upon  his  land,  in  consideration  of  the 
latter's  covenant  to  construct  a  level  for 
the  purpose  of  draining  the  land  and  thus 
making  the  ore  therein  available,  which  is 
supplemented  by  a  grant  to  the  latter  of 
such  one  eighth  of  the  ore,  runs  with  the 
land.  Crawford  v.  Witherbee,  77  Wis.  419. 
46N.  W.  545,  9:561 

108.  A  covenant  by  a  landowner,  agreeing 
that  the  products  of  his  land  shall  be  trans- 
ported to  market  exclusively  over  the  line 
of  a  particular  railroad,  is  not  a  real  cove- 
nant running  with  the  land.  Kettle  River 
R.  Co.  V.  Eastern  R.  Co.  41  Minn.  461,  43  N. 
W.  469,  6:  111 
As  to  maintenance  of  depot. 

109.  A  condition  constituting  the  consid- 
eration for  a  grant  of  a  right  of  way  to  a 
railroad  company,  that  a  depot  should  be 
maintained  on  the  land,  is  in  the  nature  of 
a  covenant  running  with  the  land.  Lyman 
V.  Suburban  R.  Co.  190  111.  320,  60  N,  E.  515, 

52:  645 
As  to  party  wall. 
See  also  supra,  97-99. 
For  Editorial  Notes,  see  infra,  V.   §   6. 

110.  An  agreement  for  a  party  wall,  ex- 
pressly declared  to  be  a  covenant  running 
with  the  land  and  to  bind  the  "heirs  and 
assigns"  of  the  parties,  must  be  held  to  run 
with  the  land.  Mott  v.  Oppenheimer,  135 
N.  Y.  312,  31  N,  E.  1097,  17:  409 
As  to  water  rights. 

See  also  supra,  75,  100-102. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

111.  Where  a  water  right  which  is  appur- 
tenant to  land  on  the  east  side  of  a  river 
is  bought  in  common  by  owners  of  land  on 
the  west  side,  and  is  severed,  each  owner 
being  assigned  his  due  proportion  of  the 
water  right,  and  each  agreeing  to  use  such 
portion  for  his  own  benefit  on  the  west 
side,  no  party  conveying  to  any  other  any 
interest  in  his  several  and  independent  es- 
tate in  land  on  the  west  side,  the  covenant 
for  use  of  the  water  is  not  a  covenant  run- 
ning with  the  land  on  the  west  side.  Law- 
rence V.  Whitney,  115  N.  Y.  410,  22  N.  E. 
174,  5:  417 

112.  A  covenant  for  the  mere  use  of  water 


892 


COVENANT,  IV.,  V. 


as  an  easement  is  not  a  covenant  running 
with  the  land,  where  the  land  is  not  at  the 
same  time  granted  or  conveyed.  Id. 


IV.  Extinguishment  of,  or  Discharge  from, 
Covenant. 

Release   from   Restrictions,    see   Easements, 

100. 
See  also  supra,  47;  Release,  5. 

113.  A  covenant  in  a  deed  of  land  restrict- 
ing the  mode  of  its  use,  and  inserted  for  the 
benefit  of  adjoining  land  of  the  grantor,  will 
be  extinguished  by  the  subsequent  vesting 
in  one  person  of  the  title  to  both  tracts  of 
land.  Post  v.  Weil,  115  N.  Y.  361,  22  N.  E. 
145,  5:422 

114.  A  change  in  the  use  of  premises  from 
residence  to  business  purposes  after  a  cov- 
enant restricting  erections  thereon  above  a 
certain  height  is  not  sufficient  to  destroy 
the  effect  of  the  covenant.  Landell  v.  Ham- 
ilton, 175  Pa.  327.  34  Atl.  663,  34:  227 
By  destruction  of  premises. 

115.  A  covenant  to  repair  a  standing 
building  and  construct  an  annex  thereto 
which  shall  become  an  integral  part  of  it  is 
discharged  by  a  destruction  by  lightning  of 
the  main  building  when  the  work  is  prac- 
tically completed,  so  as  to  render  the  repair 
and  completion  of  the  annex  impossible 
without  the  reconstruction  of  the  main 
building.  Krause  v.  Crothersville  School 
Trustees,  162  Ind.  278,  70  N.  E.  264,    65:  111 

116.  Failure  to  complete  the  repair  of  a 
building  and  the  construction  of  an  annex 
thereto  as  soon  as  possible,  so  that  the  main 
building  is  destroyed  by  lightning  before  the 
work  is  completed  but  after  it  might  have 
been  done  does  not  deprive  the  one  under- 
taking the  work  of  the  benefit  of  the  rule 
that  relieves  him  from  his  covenant  in  case 
the  building  upon  which  his  work  is  to  be 
done  is  destroyed  without  his  fault.         Id. 

117.  The  offer  by  the  owner  of  a  building 
which  another  has  contracted  to  repair  and 
add  to,  to  restore  it  after  it  has  been  de- 
stroyed by  lightning  when  the  work  was 
nearly  completed,  will  not  require  the  con- 
tractor to  comply  with  his  covenant  and  re- 
construct and  complete  the  work  according 
to  the  original  contract.  Id. 


V.  Editorial  Notes. 

See  also  Sale,  IV.  §§  6-8. 

§  I.  Generally. 

Defined  and  construed.    6:  107.* 

Distinguished  from  conditions;  construc- 
tion.    1:  380;*  5:  422.» 

In  deed  poll.    23:  396. 

In  grant  of  water  power.     67:  401. 

Effect  of  acceptance  of  deed.     1:  381.* 

In  oil  lease.     12:  290.* 

In   grant   to  corporation.     2:  199.* 

Personal  covenants  binding  on  purchaser. 
2:  200.* 


I  Effect  ©f  cevenant  f«r  quiet  enjovHient.  2: 
334.* 

Effect  of  covenant  »f  seisin.     6:  360.* 

When  c^venaot  of  seisin  broken.     4:  425.* 

Voluntary;  how  far  enforceable.     13:  723.* 

How  far  is  tide  land  within  protection  of 
covenants  in  deed.  62: 
763. 

Right  of  mortgagee  to  benefit  of  insurance 
where  mortgage  contained 
a  covenant  to  insure.  25: 
305. 

Liability  of  heirs  on  covenant  or  specialty 
debt  of  ancestor.    21 :  90. 

Purchase  by  covenantee  from  true  owner 
as  breach.     6:  107.* 

§  2.  Implied  covenants. 

Recitals  iu  a  deed  as  basis  of  implied  cove- 
nants of  title.     18:  343. 

Implied  covenant  in  lease  as  to  fitness  of 
property  for  the  purpose 
intended.    33:  449. 

§  3.  Restricting  use  of  property. 

As  to  Conditions  in  Deed  Affecting  Use  of 
Property,  see  Deeds,  III.  § 
9. 

Generally.     3:  580.* 

Covenants  not  to  build.     3:  580.* 

Covenants  to  keep  street  open.    3:  581.* 

Equitable  remedy  for  encroachment  on 
rights.    3:  581.* 

Enforcement  of  covenant  in  equity.    3:  581.* 

Injunction  to  restrain  breach  of  covenant. 
5:  423.* 

§  4.  Against  encumbrances. 

In  general.    3:  789.* 

What  deemed  an  encumbrance.     3:  789.* 

Easement  as  an  encumbrance.     3:  790.* 

Measure  of  damage  where  easement  exists. 
3:  790.* 

Effect  of  encumbrance  as  breach  of  covenant. 
3:  790.* 

Action  for  breach  of  covenant.    3:  791.* 

Damages  for  breach  of  covenant.    3:  791.* 

§  5.  Covenant    as    estoppel;    after-acquired 
title. 

Effect  of  covenant  of  warranty  upon  after- 
acquired  title.    2:  335." 

Effect  of  covenant  of  married  woman  as  an 
estoppel  against  acquiring 
superior  title.    22:  779. 

§  6.  Covenant  running  with  land. 

Test  by  which  to  determine  whether  grant 
runs   with    land.      2:  199.* 

To  contribute  to  cost  of  party  wall  as.  66: 
673. 

Of  seisin  as.     6:  361.* 

Agreement  to  build  a  party  wall  as.     1 :  33.* 

Covenant  in  grant  of  water  power  as.  67: 
402. 

§  T.  Enforcement;  remedy;  relief. 

Measure  of  Damages  for  Breach  of,  see  Dam- 
ages, V.  §  6. 

See  also  supra,  V.  §§  3,  4. 

Power  of  equity  to  compel  observance  of. 
5:  422.* 

Forfeiture  for  breac'h  of  covenant.     5:  423.* 

Equitable  relief  against  forfeiture  of  es- 
tate for  breach  of  collat- 
eral covenants.    69:  853. 

Enforcement  of  restrictive  covenants  in 
grant.    2:  200.* 


COVERTURE— CREDITORS. 


898 


Action  for  breach  of  warranty.     2:  334.* 

Action  on  covenants  in  deed  as  remedy  for 
failure  of  title.    5:  47.* 

Recovery  for  breach  of  covenant  of  seisin. 
4:427.* 

Who  is  real  party  in  interest  by  whom  ac- 
tion must  be  brought  on 
covenant.      M:  621. 

Covenant  with  several;  when  one  may  sue 
alone.    9:  704.* 

P&vel  evidence  as  to  consideration  of  a  deed 
in  action  for  breach  of 
covenant.      20:  107. 

Contingency  of  claim  for  breadi  of  cove- 
nant of  warranty  as  af- 
fecting its  presentation  to 
deceaent's   estate.     58:  88. 

Right  to  set  off  damages  for  breach  of,  on 
mortgage  foreclosure.  21: 
324. 


COVERTURE. 


As  Defense  to  Foreign  Contract,  see  Con- 
flict of  Laws,   108. 

Disability  of,  see  Husband  and  Wife,  I.  b. 

As  Personal  Defense,  see  Judgment,  280. 

Effect  of,  on  Running  of  Limitations,  see 
Limitation  of  Actions,  II.  1. 

Reply  to  Plea  of,  see  Pleading,  557. 


COW-CATCHER. 


Necessity  of,  on  Train,  see  Master  and  Serv- 
ant, 158;  Railroads,  143. 


COWS. 

Claim   for  Unnecessary   Destruction  of,  see 
Claims,  22. 


COW  STABLE. 


Municipal  Regulation  of,  see  Municipal  Cor- 
porations, 128,  218. 


COYOTES. 

Presentation     of    Claim     for    Killing,     see 

Claims,  24. 
Police  Power  as  to,  see  Constitutional  Law, 

976. 
Judicial  Notice  of.  see  Evidence,  130. 
Bounty  for  Killing,  see  Public  Moneys,  50. 


♦  «» 


CRANBERRIES. 
Insurance  of.  see  Insurance.  511. 


CREAM. 

Regulating  Sale  of,  see  Constitutional  Law, 
1062. 


CREAMERY. 


Construction   of   Subscription  Contract   for, 

see  Contracts,  329,  330. 
Filth  from,  as  Uuisance,  see  Nuisances,  16, 

88. 

♦-•-♦ 

CREDIBILITY. 

Of  Witness,  see  Trial,  99a,  100;  Witnesses, 
IV. 

»  >» 

CREDIT. 

Sale  by  Chattel  Mortgagor  on,  see  Chattel 
Mortgage,  34,  35. 

When  Right  to,  is  Given  by  Contract  of  Pur- 
chase, see  Contracts,  348. 

Judicial  Notice  of  Value  of,  see  Evidence, 
142. 

Presumption  of,  see  Evidence,  743. 

Burden  of  Proving  Injury  to,  see  Evidence, 
759. 

For  Insurance  Premiums,  Evidence  of 
Agent's  Custom  as  to,  see  Evidence, 
1719. 

Evidence  of  Impairment  of,  see  Evidence, 
1852. 

Sale  by  Administrator  on,  see  Executors  and 
Administrators,  59. 

Power  of  Factor  to  Sell  Goods  on,  see  Fac- 
tors, 11. 

Fraud  in  Obtaining,  see  Fraud  and  Deceit, 
V. 

Garnishment  of,  see  Garnishment,  38. 

Situs,  of.  for  Purpose  of  Garnishment,  see 
Garnishment,  I.  d. 

Wife's  Power  to  Pledge  Husband's  Credit 
for  Necessaries,  see  Husband  and  Wife, 
8-14.     . 

For  Interest  on  Disbursements,  see  Interest, 
5. 

Agent's  Power  to  Purchase  or  Sell  on  Cred- 
it, see  Principal  and  Agent,  II.  b. 

Of  County,  Loan  of,  see  Public  Moneys,  58, 
59. 

Tax  on.  see  Taxes,  22,  72,  99,  121-126,  145, 
148,  149. 

Deduction  of  Debts  from,  in  Assessing  Tax- 
es, see  Taxes,  405,  413,  414. 


CREDIT  INSURANCE. 

See  Insurance,  816,  1363-1371. 


CREDITORS. 


Rights  of,  in  Life  Insurance  Policy,  see  In- 
surance, VI.  d,  2,  6. 
See  also  Debtor  and  Creditor. 


8M 


CREDITORS'  BILL,  L,  II. 


CREDITORS'  BILL. 


I.  When  Maintainable. 

II.  Exhausting  Legal  Remedies. 
ni.  What  Property  may  be  Reached. 
IV.  Liens;  Priorities  between  Creditors. 

V.  Decree;  Relief  Generally. 
VI.  Editorial  Notes. 

Consolidation  of,  see. Action  or  Suit,  69; 
Appeal  and  Error,  391. 

Based  on  Foreign  Judgment,  see  Conflict  of 
Laws,  353. 

Attorney's  Fee  Out  of,  see  Costs  and  Fees, 
32. 

Bill  for  Discovery  as,  see  Discovery  and  In- 
spection, 5. 

Right  of  Parties  Bringing,  to  Control  Ac- 
tion, see  Dismissal  or  Discontinuance, 
3. 

As  to  Supplementary  Proceedings,  see  Exe- 
cution, II. 

Attacking  Judgment  by,  see  Judgment,  112. 

Effect  of.  on  Right  to  Redeem  From  .Judi- 
cial Sale,  see  Judicial  Sale,  42. 

Interruption  of  Statute  of  Limitations  by 
Decree  for  Account  on,  see  Limitation 
of  Actions,  233. 

Parties  to,  see  Parties,  126,  127;  Pleading, 
199. 

SuflSciency  of  Complaint,  see  Pleading,  435- 
437. 


I.  When   Maintainable. 

In  Suit  to  Dissolve  Corporation,  see  Corpo- 
rations, 783. 
For  Tax,  see  Taxes,  485^89. 
For  Editorial  Notes,  see  infra,  VI. 

1.  A  creditors  bill  will  not  lie  against  a 
municipal  corporation  to  reach  money  due 
from  it  to  a  contractor  who  is  a  debtor  of 
the  complainant.  Addyston  Pipe  &  S.  Co. 
V.  Chicago,   170  111.  580,  48  N.  E.   967, 

44:  405 

2.  If  an  equitable  attachment  of  a  debtor's 
property  is  prohibited  by  statute,  the  prop- 
erty cannot  be  reached  in  equity  and  the 
statute  avoided  merely  by  a  change  in  the 
form  of  proceedings.  Venable  v.  Rickenberg, 
152  Mass.  64,  24  N.  E.  1083,  8:  623 

3.  A  suit  in  equity  to  reach  and  apply 
property  to  the  payment  of  a  debt  cannot 
be  maintained,  either  under  the  general  eq- 
uity jurisdiction,  or  under  a  statute  which 
permits  such  suit  in  case  the  property  "can- 
not be  come  at  to  be  attached  or  taken  on 
execution  in  a  suit  at  law,"  where  the  prop- 
erty is  in  its  nature  attachable  by  trustee 
process,  but  cannot  be  attached  in  the  par- 
ticular case  because  of  a  statute  prohibit- 
ing the  collecting  of  that  particular  ^ind  of 
debt  attachment,  "either  by  trustee  process 
or  otherwise."  Id. 

4.  A  judgment  creditor  may  have  relief 
in  equity  against  an  alleged  fraudulent  debt- 
or who  has  either  fraudulently  conveyed  his 
property,  or  who  possesses  only  an  equitable 
interest  therein;  and  in  either  case  a  return 
of  nulla  bona  is  conclusive  evidence  that  the 


debtor  has  no  other  property  liable  to  exe- 
cution. Fechheimer  v.  liollander,  6  Mackey, 
512,  1 :  36& 

5.  A  suit  in  equity  to  reach  assets  includ- 
ed in  a  general  assignment  for  creditors,  and 
also  included  within  the  terms  of  prior  deeda 
of  trust  purporting  to  cover  such  assets  as 
after-acquired  property  of  the  debtor,  can- 
not be  maintained  by  an  execution  creditor 
who  levied  on  the  property  before  posses- 
sion was  taken  by  the  assignee,  on  the 
ground  that  the  deeds  of  trust  are  void  as 
to  such  property,  since  in  that  case  he  ha» 
an  adequate  remedy  at  law,  while  in  equity 
such  deeds  may  be  sustained.  Horner-G ay- 
lord  Co.  V.  Fawcett,  50  W.  Va,  487,  40  S.  E. 
564,  57:  869 

6.  Claims  against  a  corporation,  based  on 
unliquidated  damages  for  torts  alleged  to 
have  been  committed  by  it,  cannot,  stand- 
ing alone,  form  the  basis  of  a  creditor's  bill 
against  it.  Slover  v.  Coal  Creek  Coal  Co. 
(Tenn.)   82  S.  W.  1131,  68:  8.52 

7.  A  creditor's  bill  cannot  be  based  upon  a 
judgment  for  money  only,  in  an  action  in 
which  jurisdiction  was  obtained  only  by  at- 
tachment of  the  property  of  an  absconding 
debtor,  since  under  N.  Y.  Code  Civ.  Proc. 
§  707,  such  judgment  can  be  enforced  only 
against  the  attached  propertv.  Capital  City 
Bank  v.  Parent,  134  N.  Y.  527,  31  N.  E.  976, 

18:  240 

8.  A  judgment  having  become  dormant  by 
lapse  of  time  during  the  pendency  of  an  ac- 
tion based  thereon,  in  the  nature  of  a  cred- 
itors' bill,  for  the  purpose  of  reaching  cer- 
tain choses  in  action  of  the  judgment  debtor 
and  applying  the  proceeds  thereof  to  the 
payment  of  the  judgment,  the  action  must 
fail.  lililler  &  Co.  v.  Melone,  11  Okla.  241, 
67  Pac.  479,  56:  620 

9.  The  mere  fact  that  a  debtor's  interest 
in  his  father's  estate  consists  in  part  of  real 
estate,  upon  which  an  execution  might  be 
levied,  will  not  prevent  the  maintenance  of 
a  creditor's  bill  to  reach  such  interest  if  an 
execution  has  been  returned  "no  property 
found,"  and  it  is  not  shown  that  the  value 
of  such  real  estate  was  sufficient  to  satisfy 
the  costs  of  sale.  Oppenheimer  v.  Collins, 
115  Wis.  283,  91  N.W.  690.  60:406 

10.  The  satisfaction  or  discharge  of  a 
judgment  may  be  shown  as  a  defense 
against  a  creditors'  bill  to  enforce  the  judg- 
ment after  revival  on  scire  facias,  as  well 
as  to  defeat  the  revival.  Bickerdike  v.  Al- 
len, 157  111.  95,  41  N.  E.  740,  29:  782 


II.  Exhausting  Legal  Remedies. 

In  Federal  Court,  see  Courts,  350. 

Before   Bringing   Creditors'  Bill   to   Collect 

Tax,  see  Taxes,  489. 
See  also  supra,  4;  Attachment,  10. 

11.  A  person  whose  judgment  against  a 
corporation  was  obtained  in  a  United 
States  court  is  entitled  to  pursue  a  remedy 
given  by  the  statutes  of  the  state  in  whicn 
such  court  is  situated,  by  which  the  proper- 
ty of  the  corporation  may  be  sequestrated 


CREDITORS'  BILL,  III.. 


895 


and  equally  distributed  among  creditors,  the 
same  as  though  his  judgment  was  obtained 
in  a  state  court.  Bailin  v.  J.  &  E.  B.  Friend 
Lace  Importing  Co.  78  Wis.  404,  47  N.  W. 
516,  10:  742 

12.  An  action  seeking  to  subject  to  the 
payment  of  a  judgment  the  proceeds  of  a  sale 
of  goods  alleged  to  be  in  fraud  of  the  rights 
of  the  plaintiff,  and  asking  that  the  pur- 
chasers be  declared  debtors  of  the  judgment 
defendant  and  be  required  to  account  for 
the  goods  so  conveyed  to  them,  and  which 
also  asks  that  certain  notes  and  securities 
held  by  other  parties  be  declared  the  proper- 
ty of  the  judgment  debtor  and  subject  to 
the  payment  of  the  judgments, — is  in  law  a 
creditors'  bill,  and  the  plaintiflTs  right  to 
the  relief  sought  depends  entirely!  upon  the 
existence  of  a  judgment.  Miller  &  Co.  v. 
Melone,  11  Okla.  241,  67  Pac.  479,       56:  620 

13.  Equity  will  not  aid  a  judgment  cred- 
itor against  a  fraudulent  conveyance  until 
he  actually  obtains  a  specific  lien  by  attach- 
ment of  the  property  or  levy  thereon  under 
an  execution,  or  until  he  has  exhausted  all 
his  legal  remedies  to  collect  his  claim;  but, 
when  that  is  done,  equity  will  enforce  his 
right  to  a  lien  by  annulling  the  fraudulent 
transfer  so  that  the  judgment  may  attach 
to  the  property.  French  Lumbering  Uo.  v. 
Theriault,  107  Wis.  627.  83  N.  W.  927, 

51:  910 

14.  To  entitl«  a  judgment  creditor  to  an 
order  appointing  a  receiver  of  his  debtor's 
property  it  must  be  made  to  appear  that  the 
creditor  has  in  good  faith  exhausted  his 
remedies  at  law;  and  to  that  end  it  must 
appear,  unless  special  circumstances  are 
shown  to  excuse  it,  that  execution  has  been 
issued  upon  the  judgment  to  the  sheriff  of 
the  county  of  defendant's  residence,  and 
been  returned  unsatisfied  in  whole  or  in 
part.  Minkler  v.  United  States  Sheep  Co. 
4  N.  D.  507,  62  N.  W.  594.  33:  546 

15.  It  is  not  necessary  in  order  to  main- 
tain a  creditors'  bill,  that  the  creditor 
sjiould  give  a  bond  of  indemnity  to  the 
marshal,  or  risk  the  danger  of  litigation 
with  those  who  claim  title  under  an  assign- 
ment from  the  debtor.  A  return  of  nulla 
bona  sufficiently  shows  that  he  has  exhaust- 
ed all  reasonable  legal  remedy.  Fechheiiner 
V.  Hollander.  6  Mackey,  512.  1:  368 
What  excuses  failure  to  obtain  judgment  or 

levy  execution. 

16.  'ihe  presentation,  allowance,  and  ap- 
proval of  claims  in  an  insolvency  court,  are 
the  equivalent  of  a  judgment,  for  the  pur- 
pose of  enforcing  the  creditor's  rights 
against  fraudulent  or  void  acts  of  the  in- 
solvent. Ruggles  v.  Cannedy,  127  Cal.  290, 
53  Pac.  911,  46:  371 

17.  Jurisdiction  to  set  aside  a  trust  deed 
is  acquired,  although  complainants  in  the 
original  bill  in  which  such  relief  was  sought 
were  not  judgment  creditors  of  the  grantor, 
where  a  cross  bill  to  foreclose  the  deed  is 
filed  in  the  suit,  making  nuuiorous  parties 
defendants  with  a  requirement  to  answer, 
which  they  do  by  attacking  the  deed,  and 
upon  issues  so  formed  the  question  of  the 


validity  of  the  deed  is  submitted  by  the 
parties  for  decision.  Blair  v.  Illinois  Steel 
Co.  159  111.  350,  42  N.  E.  895,  31:  269 

18.  Creditors  whose  executions  cannot  be 
levied  upon  their  debtor's  property  because 
it  is  in  the  hands  of  a  receiver  are  not,  be- 
cause of  failure  to  levy  executions,  preclud- 
ed from  attacking  the  validity  of  a  deed  of 
trust  which  has  been  given  by  the  debtor  as 
being  in  fraud  of  their  rights.  Id. 

19.  A  decree  granting  the  relief  asked  in  a 
judginent  creditor's  bill,  by  establishing  a 
lien  in  his  favor  on  the  assets  in  the  hands 
of  a  receiver,  cannot  be  sustained  in  the  ab- 
sence of  evidence  showing  the  issuance  of 
an  execution  and  its  return  unsatisfied;  and 
absence  of  such  proof  is  not  remedied  by  the 
fact  that  the  bill  was  consolidated  with  that 
of  another  creditor  who  furnished  such  proof 
in  reference  to  his  claim.  Russell  v.  Chicago 
Trust  &  Sav.  Bank,  139  111.  538,  29  N.  E.  37, 

17:  345 


III.  What  Property  may  be  Reached. 

Unassigned  Right  of  Dower,  see  Dower,  69, 

7L 
Cemetery  Lots,  see  Exemptions,  14. 
Debts  Owing  to  Nonresidents,  see  Garni.sh- 

ment,  67. 
For  Editorial  Notes,  see  infra,  VI. 

20.  An  injunction  to  prevent  defendants 
from  paying  nonresident  creditors,  granted 
in  a  creditor's  suit,  under  Wis.  Rev.  Stat.  § 
.3029,  sufficiently  asserts  dominion  and  con- 
trol over  the  indebtedness  to  subject  it  to 
final  judgment  appointing  a  receiver.  Bragg 
v.  Gaynor,  85  Wis.  468,  55  N.  W.  919. 

21:  161 

21.  Mass.  Stat.  1851,  chap.  206  (Pub.  Stat, 
chap.  151,  §  2,  cl.  11),  giving  a  remedy  in 
equity  to  reach  and  apply,  in  payment  of 
debts,  "any  property,  right,  title,  or  interest, 
legal  or  equitable,"  of  the  debtor,  does  not 
cover  choses  in  action  which,  from  their 
nature,  cannot  be  assigned  by  the  debtor. 
Pettibone  v.  Toledo,  C.  &  St.  L.  R.  Co.  148 
Mass.  411,  19  N.  E.  337,  1 :  787 

22.  An  executory  mutual  obligation  creat- 
ed by  an  agreement  by  railroad  bondholders 
to  lend  the  company  money,  for  which  they 
are  to  receive  additional  bonds,  is  not  a  debt 
due  the  company,  which  under  the  general 
equity  power,  or  under  the  Massachusetts 
statutes,  can  be  reached  by  creditors  of  the 
company.  Id. 

23.  Letters  patent  may  be  sold  and  trans- 
ferred by  a  court  of  equity  through  its  mas- 
ter for  the  benefit  of  creditors  of  their  own- 
er, under  Mass.  Stat.  1884,  chap.  285,  even 
although  he  is  a  nonresident  of  the  state,  if 
the  court  has  acquired  jurisdiction  which 
will  enable  it  to  bind  him  with  a  personal 
judgment.  Wilson  v.  Martin-Wilson  Auto- 
matic F.  A.  Co.  151  Mass.  515,  24  N.  E. 
784,  8:  309 


CREDITORS'  BILL.  IV.— CREWS. 


IV.  Liens;  Priorities  between  Creditors. 

See  also  supra,  19. 

24.  A  creditors'  bill  is  not  filed  so  as  to 
acquire  a  lien  on  the  debtor's  property,  by 
taking  it  to  the  clerk's  office,  and  having 
him  indorse  it  as  filed  and  enter  a  record  of 
it  in  the  general  docket,  if  it  is  immediately 
withdrawn  and  remains  in  the  hands  of  the 
complainant's  attorney.  Meridian  Nat. 
Bank  v.  Hoyt  &  Bros.  Co.  74  Miss.  -^21,  21 
So.  12,  SS":  796 

2.5.  No  lien  is  acquired  upon  debts  due  a 
foreign  corporation  from  residents  of  a  state 
other  than  that  in  which  a  creditor's  bill  is 
brought  against  such  corporation,  where 
there  is  no  service  of  process  upon  it.  Hol- 
brook  V.  Ford,   153  111.  633,  39  N.  E.   1091, 

27:  324 

26.  The  death  of  the  vendor  before  a  spe- 
cific lien  shall  have  been  obtained  on  prop- 
erty that  he  has  conveyed  in  fraud  of  cred- 
itors will  prevent  the  enforcement  of  a  judg- 
ment by  execution  against  such  property 
and  preclude  the  acquisition  thereby  of  a 
lien  which  equity  will  protect.  French  Lum- 
herinor  Co.  v.  Theriault,  107  Wis.  627,  83  N. 
W.  927,  51:910 
Priorities. 

Priority    of    Judgment    against    Fraudulent 

Grantor,  see  Judgment,  313,  314. 
For  Editorial  Notes,  see  infra,  VI. 

27.  The  superior  diligence  of  a  junior  judg- 
ment creditor  in  bringing  a  suit  to  uncover 
land  which  had  been  conveyed  after  the 
judgments,  in  fraud  of  creditors,  will  en- 
title him  to  the  proceeds.  Doster  v.  Man- 
istee Nat.  Bank,  67  Ark.  325,  55  S.  W.  137, 

48:  334 

28.  A  creditor  at  large  is  not  entitled  to 
priority  over  one  who  has  obtained  a  judg- 
ment against  the  debtor  subsequent  to  the 
date  of  a  fraudulent  conveyance,  but  before 
the  filing  of  the  bill  by  such  creditor  at 
large  to  set  it  aside,  although  he  is  entitled 
to  priority  over  one  who  obtains  his  judg- 
ment after  the  filing  of  such  bill.  Foley  v. 
Ruley,  50  W.  Va.  158,  40  S.  E.  382.      55:  916 

29.  The  seizure  by  the  court  of  the  debt- 
or's property  and  the  appointment  of  a  re- 
ceiver for  it  in  a  judgment  creditor's  suit 
presents  no  obstacle  to  the  obtaining  of 
liens  upon  such  property  by  other  creditors 
who  file  similar  bills.  By  filing  such  bills, 
creditors  will  obtain  priority  over  those 
whose  claims  have  not  been  reduced  to  judg- 
ment, and  among  themselves  in  the  order  of 
the  filing  of  their  respective  bills.  Russell 
V.  Chicago  Trust  &  Sav.  Bank,  139  111.  538, 
29  N.  E.  37,  17:345 


tered  against  defendants  for  the  full  amount 
of  the  claim,  in  the  absence  of  anything  to 
show  that  they  had  become  personally  liable 
therefor,  in  a  creditor's  suit  to  subject  as- 
sets in  the  hands  of  third  persons  to  the 
payment  of  a  judgment  debt.  Oppenheimer 
V.  Collins,  115  Wis.  283,  91  N.  W.  690, 

60:  406 

31.  In  applying  assets  which  have  been 
wrongfully  assigned  in  fraud  of  creditors  to 
the  payment  of  debts  of  the  assignor,  real 
estate  should  be  first  exhausted,  bo  the  ex- 
oneration of  personalty.  Id. 

32.  In  a  creditors'  bill  a  decree  for  an  ac- 
count of  outstanding  debts  suspends  all  oth- 
er pending  creditors'  suits,  but  not  a  pend- 
ing action  at  law,  the  judgment  in  which, 
when  obtained,  will  be  entitled  to  share  in 
the  benefit  of  the  decree.  Paxton  v.  Rich, 
85  Va.  378,  7  S.  E.  531,  1:639. 


V.  Decree;  Relief  Generally. 

Error  in  Directing  Exhaustion  of  Personal- 
tv  before  Realty,  see  Appeal  and  Error. 
1153. 

Relief  under  Pleading,  see  Pleading,  105. 

See  also  supra,  19. 

30.  Personal  judgment  should  not  be  en- 


VI.  Editorial  Notes. 

§  I.  Generally. 

As  to  Fraudulent  Conveyances,  Generally, 
see  Fraudulent  Convey- 
ances, IX. 

Jurisdiction  of  equity  over.     1:  788.* 

When  lies.     1:  368.* 

For  unpaid  subscriptions  to  stock  of  foreign 
corporation.    34:  743. 

What  may  be  reached  by.    8:  623.* 

Exemption  of  officer's  salary  from.    54:  566, 

Allowance  of  attorney's  fees.    54:  817. 

Effect  of  bankruptcy  on.    45 :  193. 

Suspension  of  Other  suits.     1:  639.* 

Plaintiff's  control  over  suit  brought  for  all 
similarly  situated.  46: 
839. 

§  2.  Priority  as  to  proceeds  of. 

Generally.     17:  345. 

Effect  of  judgments  as  liens.     17:  345. 

Bill  for  all  similarly  situated.     17:  348. 

Creditors  at  large.     17:  348. 


CREEK. 

As  Boundary,  see  Boundaries,  32,  33. 

Authority  of  City  as  to,  see  Municipal  Cor- 
porations, 55. 

Enforcement  of  Contract  to  Clear  Channel 
of,  see  Specific  Performance,  53. 

Navigability  of,  see  Waters,  3. 


CREMATING  FURNACE. 

For  Reduction  of  Garbage,  see  Contracts, 
854,  855,  865;  Municipal  Corporations, 
290. 


CREWS. 

Right  to  Salvage,  see  Salvage,  2. 


CRIME— CRIMINAL  LAW. 


897 


CRIME. 

Suicide  as,  see  Insurance,  979-982;   Suicide. 
Proximate  Cause  of  Injury   by,   see  Proxi- 
mate Cause,  VIII. 
See  also  Criminal  Law. 


CRIMINAL  CONVERSATION. 

Release  from  Judgment  for,  by  Discharge 
in  Bnnkruptcy,  see  Bankruptcy,  61. 

Wife's  Right  of  Action  for,  see  Husband  and 
Wife,  225. 


CRIMINAL  INTENT. 

As  Element  of  Crime,  see  Criminal  Law,  7- 

12,  14,  28. 
Presumption  and  Burden  of  Proof  as  to,  see 

Evidence,  II.  e,  6. 
Allegation  of,  see  Indictment,  etc.,  II.  b. 
Question  for  Jury  as  to,  see  Trial,  218-222. 


CRIMINAL  LAW. 


L  Crimanal  Liability. 

a.  In  General. 

b.  Capacity  to  Commit;  Irresponsibil- 

ity. 

c.  Attempts. 

d.  Solicitation. 

e.  Parties  to  Offenses. 

f.  Instigation  or  Consent,  aa  Defense. 
11.  Procedure. 

a.  In  General. 

b.  Protection  and  Rights  of  Accused 

Generally. 

c.  Warrant;  Commitment. 

d.  Necessity  of  Indictment  or  Infor- 

mation. 

e.  Concurrent  Proceedings. 

f.  Pleading;   Motions;  Demurrer. 

g.  Former  Jeopardy. 

1.  In  General. 

2.  Different     Offenses;    Different 

Modes    of   Describing    Same 
Act. 
h.  Determining    Sanity    of    Accused; 
Proceeding  with  Trial. 
m.  Offenses  against  Different  Sovereignties. 
rV.  Sentence  and  Imprisonment. 

a.  In  General. 

b.  Cruel  and  Unusual  Punishment'. 

c.  Extent  of  Punishment  Generally; 

Excessive  Fines. 

d.  Time    of     Imprisonment;    Cumu- 

lative   and    Indeterminate    Sen- 
tences. 

e.  Place  of  Imprisonment. 

f.  Punishment  of  Second  Offenses  and 

Habitual  Criminals. 

g.  Suspension  of  Sentence;   Tinje  of 

Imposing. 
h.  Parole;   Reprieve;   Pardon. 

1.  In    General. 

2.  Conditional. 
L.R.A.  Dig.— 57. 


V.  Record. 
VI.  Jiiditorial  Notes, 

Various   Particular  Crimes,   see  Abduction; 

■  •Abortion;  Banks,  VII.;  Betting;  Bicycle 
Paths,  2,  3;  Bigamy;  Burglary;  Car- 
riers, II.  d;  Corpse,  9;  Elections,  II.  d; 
Embezzlement;  False  Pretenses;  For- 
gery; Game  Laws,  3,  4,  6,  7;  Gaming; 
Highwavs,  208;  Homicide;  Husband  and 
Wife,  IV.;  Incest;  Infants,  11-14;  In- 
sti«rice,  61,  114-118,  979-982;  Intoxi- 
cating Liquors,  III.;  Larceny;  Lottery; 
Obscenity;  Obstructing  Justice;  Per- 
jury; Postoffice,  III.;  Prize  Fighting; 
Rape;  Robbery;  Sedition;  Seduction; 
Suicide;  Trespass,  II.;  Warehousemen, 
24,  25. 

Abduction  of  Criminal,  see  Abduction,  and 
also  infra,  VT.  §  13. 

Consent  to  Abortion,  see  Abortion,  2. 

Arrest,  see  Arrest. 

Liability  for  Cruelty  to  Prisoner,  see  As- 
sault and  Battery,  5. 

Status  of  Convicts,  see  Civil  Death. 

Effect  of  Imprisonment  as  Civil  Death,  see 
Civil  Death. 

Conflict  of  Laws  as  to  Crimes,  see  Conflict 
of  Laws,  I.  e,  3. 

Conspiracy  to  Commit  Crime,  see  Con- 
spiracy. 

Legislative  Release  from  Hospital  for  Crim- 
inal Insane,  see  Constitutional  Law, 
259. 

Class  Legislation  as  to  Payment  of  Costs 
of  Prosecution,  see  Constitutional  Law, 
589. 

Ex  Post  Facto  Laws,  see  Constitutional 
Law,  I.  b,  1. 

Equal  Protection  and  Privileges  in  Criminal 
Matters,  see  Constitutional  Law,  II.  a, 
8. 

Police  Power  as  to  Crimes,  see  Constitu- 
tional Law,  n.  c,  5. 

Due  Process  of  Law  in  Criminal  Matters, 
see  Constitutional  Law,  IT.  e,  8. 

Illegality  of  Contract  to  Suspend  Criminal 
Prosecution,  see  Contracts,  448-451. 

Liability  for  Injuries  Committed  by  Convict, 
see  Convicts,  3,  4. 

Means  of  Identifying  Convicts,  see  Convicts, 
5,  6. 

Liability  of  Corporation  for  Criminal  Con- 
tempt, see  Contempt,  18. 

Criminal  Liability  of  Corporation,  see  Cor- 
porations, 211. 

Costs  of  Criminal  Prosecution,  see  Costs 
and   Fees,    19,   20. 

District  Attorney,  see  District  and  Prose- 
cutin?  Attorneys. 

Estopnel  in  Criminal  Cases,  see  Estoppel, 
87.  ■ 

Extradition,  see  Extradition.  • 

Civil  Liability  for  False  Arrest  and  Im- 
prisonment, see  False  Imprisonment. 

Civil  Liability  for  Bringing  Prosecution,  see 
Malicious  Prosecution. 

Garnishment  of  Property  Taken  from 
Prisoner,  see  Garnishment,  63-55. 

Grand  Jury,  see  Graiid   Jtay. 

Habeas  Corpus,  see  Habeas  Corpus. 


898 


CRIMINAL  LAW,  I.  a.  b. 


Sufficiency  of  Indictment  against  Demurrer, 
see  Indictment,  etc.,  99. 

Responsibility  for  Failure  to  Furnish  Medi- 
cal Attendance  to  Infant,  see  Infants, 
11-14. 

Injunction  against  Criminal  Acts,  see  In- 
junction, I.  d. 

Insurance  in  Foreign  Company,  see  Insur- 
ance, 61. 

Criminal  Liability  of  Insurance  Agent,  see 
Insurance,  114-118. 

Apportionment  between  Judges  of  Labor  of 
Holding  Courts,  see  Judges,  5. 

Liability  for  Violating  License  Ordinance, 
see  License,  53,  54. 

Compelling  Court  or  Judge  to  Exercise 
Jurisdiction,  see  Mandamus,  23-26. 

Abatement  of  Nuisance  Constituting  a 
Crime,  see  Nuisances,  118. 

Defense  to  Prosecution  for  Unlawful  Prac- 
tising of  Medicine,  see  Physicians  and 
Surgeons,  11-13. 

Proximate  Cause  of  Injury  by  Crime,  see 
Proximate  Cause,  VIII. 

Criminal  Removal  of  Court  Records,  see 
Records,  9,  10. 

Reward  for  Criminal,  see  Reward. 

Search  of  Accused  Person,  see  Search  and 
Seizure. 

Sheriff  Takinsr  Photograph,  etc.,  of  Prisoner, 
see  Sheriff,  3. 

Partial  Invalidity  of  Statute  as  to,  see 
Statutes,   98^104. 

Title  of  Statute  as  to,  see  Statutes,  168-170, 
229-236,  253,  272-274. 

Plurality  of  Subjects  in  Statute  as  to,  see 
Statutes,  26i,  262. 

Special  Legislation  as  to,  see  Statutes,  299. 

Application  of  Penalty  to  Amendment  of 
Statute,  see  Statutes,  443. 

Strict  Construction  of  Penal  Statute,  see 
Statutes.  500-513. 

Compulsory  Process  for  Witnesses,  see  Wit- 
nesses*;  204,  205. 

Fees  of  Witnesses  on  Criminal  Trial,  see 
Witnesses,  V. 

Service  of  Indictment,  see  Writ  and  Process, 
30. 

Exemption  of  Nonresident  Defendant  from 
Service  of  Process,  see  Writ  and  Proc- 
ess, 78. 


I.  Criminal  Liability. 

a.  In  General. 

For  Editorial  Notes,  see  infra.  VI.  §§  1,  10, 
11. 

1.  It  does  not  lie  in  the  power  of  the 
legislature  to  make  that  act  a  crime  which 
consists  in  the  bare  exercise  of  a  simple  con- 
stitutional right.  Re  Flukes,  157  Mo.  125. 
57  S.  W.  .545.  51:  176 

2.  Purely  statutory  offenses  cannot  be  es- 
tablished bv  implication.  People  v.  Phvfe. 
l.-^r,  N.  Y.  554,  32  N.  E.  978,  19:  141 

3.  The  nonperformance  of  an  act,  the  per- 
formance of  which  by  the  person  charged 
therewith  is  impossible,  cannot  be  made  a 
crime,  by  either  a  legislative  or  municipal 


body,  for  which  the  delinquent  may  be 
punished  by  fine  and  imprisonment.  Port 
Huron  v.  Jenkinson,  77  Mich.  414,  43  N.  W. 
923,  6:  54 

4.  All  vhe  provisions  of  a  section  of  a 
statute  need  not  be  violated  in  order  to 
make  one  liable  to  a  fine  under  a  general 
provision  that  he  shall  be  fined  for  a  viola- 
tion of  the  section.  State  v.  Gerhardt,  145 
Ind.  439,  44  N.  E.  469,  33:  313 

5.  That  an  officer's  term  has  expired  will 
not  prevent  his  prosecution  and  punish- 
ment for  misdemeanor  in  office.  Cora.  v. 
Coyle,  160  Pa.  36,  28  Atl.  634,  24:  552 
What  law  governs. 

6.  The  laws  in  force  when  the  fatal  blow 
or  wound  is  inflicted  govern  the  crime  of 
murder  as  it  is  regarded  as  committed  at 
that  time,  although  the  death  occurs  on  a 
subsequent  date.  Debney  v.  State,  45  Neb. 
856,  64  N.  W.  446,  "  34:  851 
Intent;  motive;  knowledge. 

Question   for  Jurv  as  to  Intent,  see  Trial, 

218-222. 
See  also  infra,  14;  Rape,  6. 
For  Editorial  Notes,  see  infra,  VI.  §  1. 

7.  Criminal  intent  or  criminal  negligence 
is  of  the  essence  of  every  criminal  offense, 
and  it  must  in  some  way  appear  in  order  to 
justifv  a  conviction.  Meadowcroft  v.  Peo- 
ple, 163  111.  56,  45  N.  E.  303,  35:  176 

8.  The  intent  with  which  an  act  is  done 
is  immaterial,  when  the  act  is  denounced 
as  unlawful  bv  statute.  State  v.  Southern 
R.  Co.  122  N.  C.  1052,  30  S.  E.  133,    41:  246 

9.  The  intention  of  a  person  who  com- 
mits an  act  which  is  made  a  misdemeanor 
by  statute  constitutes  no  element  of  the  of- 
fense. Haggerty  v.  St.  Louis  Ice  Mfg.  &  S. 
Co.  143  Mo.  238,  44  S.  W.  1114,  40:  151 

10.  One  who  intentionally  commits  a 
crime  is  responsible  criminally  for  the 
consequences  of  his  act,  if  the  offense  proves 
to  be  different  from  that  which  he  intended. 
Com.  V.  Murphy,  165  Mass.  66,  42  N.  E.  504, 

30:  734 

11.  Whether  a  criminal  intent  or  a  guilty 
knowledge  is  a  necessary  ingredient  of  a 
statutory  offense  is  a  matter  of  construc- 
tion. Com.  use  of  Allegheny  County  v. 
Weiss.  139  Pa.  247,  21  Atl.  10,  11 !  530 

12.  There  is  a  sufficient  criminal  intent  to 
sustain  a  conviction  of  one  who  compels  an- 
other, through  fear  of  death,  to  make  an 
actual  attempt  to  commit  a  crime,  although 
the  latter  acts  solelv  under  compulsion. 
State  V.  Dowell,  106  N.  C.  722,  11  S.  E.  525, 

8:  297 

13.  It  is  not  indispensable  to  a  conviction 
that  the  motive  for  the  crime  shall  apnear. 
Keadv  v.  People,  32  Colo.  57,  74  Pac.  892. 

66:  353 

b.  Capacity  to  Commit;  Irresponsibility. 

Passion  Produced  by  Provocation,  see  Homi- 
cide, 3. 

Insanity;  irresistible  impulse. 

Setting  Aside  Conviction  of  Insane  Person, 
see  Appeal  and  Error.  737. 

Sufficiencv  of  Proof  of  Insanity,  see  Evi- 
dence, 2367-2371. 


CRIMINAL  LAW,  L  b. 


899 


Instruction  as  to,  see  Trial,  850. 
See  also  infra,  51,  52,  174-17(5. 
For  Editorial  Notes,  see  infra,  VI.  §§  3,  4, 
23. 

14.  The  fact  that  one  who  committed  a 
homicide  was  temporarily  insane  when  he 
formed  and  executed  the  design  to  kill  an- 
other may  be  taken  into  consideration  under 
Tex.  Pen.  Code,  art.  40a,  both  to  determine 
the  degree  of  the  murder  and  in  fixing  the 
penalty.  Evers  v.  State,  31  Tex.  Crim.  Rep. 
318,  20  S.  W.  744,  18:  421 

15.  It  is  immaterial  whether  a  person 
claiming  insanity  as  a  defense  to  a  charge 
of  murder  is  totally  or  partially  insane  on 
other  subjects  or  not  if  he  is  diseased  to  the 
extent  of  breaking  down  the  distincition  be- 
tween a  knowledge  of  right  and  wfong  in 
reference  to  the  act  for  which  he  is  on  trial. 
Ford  V.  State,  73  Miss.  734,  19  So.  665, 

35:  117 

16.  A  person  partially  insane  is  respon- 
sible for  a  criminal  act,  if  at  the  time  he 
knows  right  from  wrong  and  knows  the  na- 
ture and  character  of  the  act  and  its  conse- 
quences, knows  that  it  is  wrong,  hurtful  to 
another,  and  deserves  punishment.  State  v. 
Harrison,  36  W.  Va.  729,  15  S.  E.  982, 

18:  224 

17.  Where  a  person  at  the  time  of  the 
commission  of  an  alleged  crime  has  suf- 
ficient mental  capacity  to  understand  the 
nature  and  quality  of  the  particular  act  or 
acts  constituting  the  crime,  and  the  mental 
capacity  to  know  whether  they  are  right  or 
wrong,  he  is  generally  responsible  if  he  com- 
mits such  act  or  acts,  whatever  may  be  his 
capacity  in  other  particulars;  but  if  he  does 
not  possess  this  degree  of  capacity,  then 
he  is  not  so  responsible.  State  v.  O'Neil,  51 
Kan.  651,  33  Pac.  287,  24:  555 

18.  Lunacy  or  insanity,  to  take  away  ac- 
countability, must  be  of  such  degree  as  to 
obliterate  the  sense  of  right  and  wrong  as 
to  the  particular  act  done.  Hornish  v.  Peo- 
ple, 142  111.  620,  32  N.  E.  677,  18:  237 

19.  A  person  who  is  insane  or  of  unsound 
mind  must  be  also  incapable  of  knowing  the 
wrongfulness  of  his  act,  in  order  to  be  held 
incapable  of  crime  under  Okla.  Stat.  1893,  § 
1852,  which  declares  that  all  persons  are 
capable  of  committing  crime  except  "luna- 
tics, insane  persons,  and  all  persons  of  un- 
sound mind,  including  persons  temporarily 
or  partially  deprived  of  reason,  upon  proof 
that  at  the  time  of  committing  the  act 
charged  against  them,  they  were  incapable 
of  knowing  its  wrongfulness,"  since  -the 
final  clause  applies  to  all  the  classes  of 
persons  mentioned.  Maas  v.  Oklahoma,  10 
Okla.  714,  63  Pac.  960,  53:  814 

20.  Conviction  for  assault  with  intent  to 
murder  cannot  be  had  in  case  the  accused 
was  at  the  time  of  committing  the  deed  in- 
sane because  of  the  recent  voluntary  use  of 
cocaine,  morphine,  and  whisky,  although 
the  statute  provides  that  insanity  from  the 
vohuitary  recent  use  of  intoxieatinEr  liquor 
shall  be  no  defense.  Edwards  v.  State.  38 
Tex.  Crim.  Rep.  386,  43  S.  W.  112,        39:  262 

21.  The  existence  of  an  uncontrollable  in- 


sane impulse  to  commit  a  crime  known  to 
be  such  does  not  modify  the  criminal  re- 
sponsibility for  the  act.  State  v.  Knight, 
95  Me.  467,  50  Atl.  276,  55:  373 

22.  Mere  irresistible  impulse  to  do  an  act 
will  not  exempf  a  person  from  criminal  re- 
sponsibility therefor.  State  v.  Harrison,  36 
W.  Va.  729,  15  S.  E.  982,  18:  224 

23.  That  the  impulse  to  steal  is  inspired 
by  avarice  or  greed  will  not  oreclude  the 
defense  of  insanity,  if  the  will  power  is 
weakened  to  such  an  extent  as  to  leave  the 
afflicted  one  powerless  to  control  the  im- 
pulse. State  V.  McCuUough,  114  Iowa,  532, 
87  N.  W.  503,  55:378 
Intoxication. 

See  also  supra,  20;    infra,  176. 

For  Editorial  Notes,  see  infra,  VI.  §  5. 

24.  Voluntary  intoxication  is  no  justifica- 
tion or  excuse  for  crime.  State  v,  O'Neil, 
51  Kan.  651,  33  Pac.  287,  24:  555 

25.  Voluntary  intoxication  is  neither  an 
excuse  for  nor  a  palliation  of  the  crime  of 
murder  committed  by  one  in  that  state. 
Harris  v.  United  States,  8  App.  D.  C.  20, 

36:  465 

26.  Under  a  statute  establishing  degrees 
of  the  crime  of  murder,  and  providing  that 
wilful,  deliberate,  and  premeditated  killing 
shall  be  murder  in  the  first  degree,  intoxi- 
cation at  the  time  of  the  killing  may  be  con- 
sidered upon  the  question  whether  he  was  in 
such  a  condition  of  mind  as  to  be  capable  of 
deliberate  premeditation.  State  v.  O'Neil, 
51  Kan.  651,  33  Pac.  287,  24:  555 

27.  One  who  is  intoxicated  to  the  extent 
of  being  deprived  of  the  mental  capacity  to 
deliberate  or  premeditate  cannot  commit  a 
crime  of  which  the  statute  makes  pre- 
meditation an  essential  element,  if  he  had 
formed  no  purpose  to  commit  the  crime 
prior  to  the  time  he  became  so  intoxicated. 
Hence,  upon  the  trial  of  a  person  charged 
with  having  committed  murder  in  the  first 
degree,  of  which  premeditation  is  an  essen- 
tial element,  the  fact  that  the  accused  was 
drunk  at  the  time  he  committed  the  crime 
may  be  considered  for  the  purpose  of  de- 
termining whether  or  not  there  was  pre- 
meditation. Aszman  v.  State,  123  Ind.  347, 
24  N.  E.   123,  8:  33 

28.  Upon  trial  of  an  indictment  for  con- 
spiring to  commit  murder,  the  fact  of  de- 
fendant's intoxication  at  the  alleged  time  of 
the  commission  of  the  offense  may  be  con- 
sidered by  the  jury  as  bearing  upon  the  ex- 
istence of  the  felonious  intent  necessary  to 
render  him  guilty.  Booher  v.  State,  156 
Tnd.  435,  60  N.  E.  156,  54:  391 

Infancy. 

To  Commit  Rape,  see  Rape,  2. 

For  Editorial  Notes,  see  infra,  VT.  §  2. 

29.  A  boy  between  thirteen  and  fourteen 
years  of  age  cannot  be  punished  for  a  sim- 
ple misdemeanor  in  betting  money  at  a 
game  of  chance,  where  he  did  not  know  he 
was  violating  any  law  although  he  clearly 
knew  the  difference  between  right  and 
wrong.  State  v.  Yeargan,  117  N.  C.  706,  23 
S.  E.  153,  36:  196 


900 


CRIMINAL  LAW,  I.  c— e. 


c.  Attempts. 

Punishment  for,  see  infra,  223,  224,  240. 
Proof  of  Commission   under   Allegation    of 

Attempt,  see  Evidence,  2417. 
See  also  supia,  12;  infra.  40,  43-45. 
For  Edito'  ial  Notes,  see  infra,  VI.  §  8. 

30.  AttftTupts  which,  if  successful,  would 
have  resulted  in  an  indictable  offense,  are 
indictable.  Com.  v.  Tolman,  149  Mass.  229, 
21   N.   E.   377,  3:  747 

30a.  Mere  preparatory  acts  for  the  com- 
mission of  a  crime,  and  not  proximately 
leading  to  its  consummation,  do  not  consti- 
tute an  attempt  to  commit  the  crime. 
Groves  v.  State,  116  Ga.  516,  42  S.  E.  755. 

59:  598 

31.  A  person  cannot  be  guilty  of  an  at- 
tempt to  commit  an  offiense  which  he  is 
physically  impotent  to  perpetrate.  Foster 
V.  Com.  96  Va.  306,  31  S.  E.  503,        42:  589 

32.  The  common-law  rule  as  to  what 
constitutes  an  attempt  to  commit  an  of- 
fense is  not  changed  by  Mich.  Comp.  Laws 
1897,  §  11,784,  providing  for  punishment  of 
every  person  who  shall  attempt  to  commit 
a  crime  and  do  any  act  towards  its  commis- 
sion, but  shall  fail  in  the  perpetration,  or 
shall  be  intercepted  or  prevented  in  the 
execution  of  the  same.  People  v.  Younss, 
122  Mich.  292,  81  N.  W.  114,  47:  108 

33.  One  who  is  successful  in  obtaining 
money  by  means  of  the  confidence  game 
cannot  be  convicted  of  an  attempt,  although 
the  act  was  not  consummated  in  the  county 
where  the  indictment  was  found.  Graham 
V.  People,  181  111.  477,  55  N.  E.  179,    47:  731 

34.  An  attempt  to  make  an  unlawful  sale 
of  the  dead  body  of  a  human  being  is  itself 
a  misdemeanor.  Thompson  v.  State,  105 
Tenn.  177.  58  S.  W.  213,  51:  883 
To  commit  extortion. 

35.  The  offense  of  attempting  to  commit 
the  crime  of  extortion  may  be  committed  by 
threats  which  do  not  actually  inspire  fear 
in  the  intended  victim,  even  if  the  latter  is 
in  fact  acting  as  a  decov  of  the  police. 
People  V.  Gardner,  144  X.  Y.  119,  38  N.  E. 
1003,  28:699 
To  commit  larceny. 

36.  An  indictment  charging  an  attempt  to 
commit  grand  larceny  in  the  second  degree 
is  supported  by  proof  that  defendant  while 
in  a  crowd  thrust  his  hand  into  another 
person's  pocket,  and  withdrew  it  therefrom 
empty,  although  it  is  not  shox\'n  that  there 
was  any  property  in  the  pocket  which  could 
be  the*  subject  of  larceny,  under  s^^atutes 
defining  grand  larceny  in  the  second  desree 
as  stealing  and  unlawfully  appropriating 
property  of  any  value  by  takincr  the  same 
from  the  person  of  another  under  circum- 
stances not  amounting  to  grand  larceny,  and 
defining  an  attempt  as  an  act  done  with  in- 
tent to  commit  crime,  and  tending,  but  fail- 
ing, to  effect  its  commission.  People  v. 
Moaan.  123  N.  Y.  254.  25  N.  E.  412,  10:  109 
To   commit   burglary. 

37.  An  attempt  to  break  and  enter  a 
dwelling  house  was  not  made  by  the  fact 
that  a  person  left  his  home  with  revolver 
and  slippers,  and  traveled  9  miles  towards 


the  place  where  he  intended  to  commit  the 
crime,  where  he  met  a  person  with  whom 
he  had  planned  to  commit  the  crime,  and 
then  provided  himself  with  chloroform  and 
loaded  his  revolver,  but  was  prevented  from 
committing  the  crime  by  being  arrested. 
People  V.  Youngs,  122  Mich.  292,  81  N.  W. 
114,  47:  108 

To  commit  robbery. 

38.  The  offense  of  attempt  to  commit 
robbery  is  created  by  a  statute  providing 
that  every  person  who  attempts  to  commit 
any  crime,  but  fails,  is  punishable.  People 
v.  Bums  (Cal.)  69  Pac.  16,  60:  270 

39.  An  assault  with  intent  to  commit  a 
robbery  may  be  prosecuted  as  an  attempt  to 
commit  robbery.  Id. 

d.  Solicitation. 

Instigation  as  a  Defense,  see  infra,  I.  f. 
Charging    Instigator    as    Principal,    see    In- 
dictment, etc.,  89. 
See  also  infra,  56-58. 
For  Editorial  Notes,  see  infra,  VI.  §  8. 

40.  Soliciting  another  to  commit  a  fdony 
is  a  crime  distinct  from  that  of  attempting 
to  commit  the  felonv.  State  v.  Bowers,  35 
S.  C.  262,  14  S.  E.  488,  15:199 

41.  Proof  of  persuading  and  procuring  a 
person  to  take  poison,  which  results  in 
death,  will  warrant  a  conviction  of  murder. 
Burnett  v.  People,  204  111.  208,  68  N.  E.  505, 

66:  304 
Of  bribe. 

42.  The  solicitation  of  a  bribe  is  not 
punishable  as  a  crime  by  the  laws  of  Kan- 
sas. State  V.  Bowles,  70  Kan.  821,  79  Pac. 
726,  69:  176 

43.  The  solicitation  of  a  bribe  does  not 
constitute  an  attempt  to  accept  or  receive 
a  bribe.  Id. 
To  commit  adultery. 

44.  Mere  solicitation  to  commit  adultery 
is  not  an  attempt  to  commit  the  crime. 
State  V.  Butler,  8  Wash.  194,  35  Pac.  1093, 

25:434 
To  commit  arson. 

45.  An  attempt  to  commit  felony  is  made 
by  soliciting  a  person  to  set  fire  to  the 
dwelling  house  of  another,  and  givin<r  him 
matches  for  that  purpose,  besides  offering 
him  a  reward,  although  the  matches  are 
not  used  for  that  purpose,  and  the  offer  is 
rejected.  State  v.  Bowers,  35  S.  C.  262,  14 
S.E.  488,  15:  199 

e.  Parties  to  Offenses. 

Indictment  against  Accessory,  see  Indict- 
ment,  etc..  92. 

Information  Charging  Person  as  Accessory, 
see  Indictment,  etc.,  20. 

Co-conspirators. 

For  Editorial  Notes,  see  infra.  VI.  §§  6,  7. 

46.  Where  the  criminal  liability  arises 
from  the  act  of  another,  the  act  done  must 
be  in  furtherance  of  a  common  aesign  or  in 
prosecution  of  a  common  purpose  for  which 
the  parties  were  combined.  Butler  v.  Peo- 
ple, 125  111.  641.  18  N.  E.  338,  1 :  211 


CRIMINAL  LAW.  I.  f 


901 


47.  Active  participation  in  planning  a  fe- 
lonious taking  of  money,  followed  by  an  ac- 
tual taking  by  a  part  of  the  confederates 
in  pursuance  of  the  plan,  will  warrant  a 
conviction  of  larceny,  although  the  accused 
was  not  present  when  the  crime  was  ac- 
tually committed.  Com.  v.  Hollister,  157 
Pa.  13.  27  Atl.  386,  25:  349 

48.  To  render  a  conspirator  guilty  of 
a  murder  committed  by  a  co-conspirator  it 
must  have  been  committed  in  furtherance 
of  the  conspiracy,  and  have  been  the  nec- 
essary and  probable  result  of  the  execu- 
tion of  the  conspiracy.  Powers  v.  Com.  110 
Ky.  386,  61  S.  W.  735,  53:  245 

49.  To  render  one  responsible  for  an  act 
committed  in  furtherance  of  a  conspiracy, 
his  will  must  contribute  to  the  thing  ac- 
tually done,  so  that  if  the  conspiracy  is  to 
commit  a  wrongful  act  not  requiring  a  de- 
praved, wicked,  or  malignant  spirit,  a  con- 
spirator merely  as  such  will  not  be  guilty 
of  murder  in  case,  in  carrying  out  the  com- 
mon design,  a  co-conspirator  kills  a  per- 
son. Id. 

50.  That  one  of  several  members  of  a 
municipal  assembly  jointly  indicted  for  en- 
tering into  a  corrupt  agreement  to  sell 
their  votes  upon  a  measure  to  come  before 
them  is  not  guilty  does  not  require  the 
acquital  of  others  who  are  guiltv.  State 
v.  Lehman,  182  Mo.  424,  81  S.  W.'  1118, 

66:  490 

51.  Co-conspirators  are  not  relieved  from 
liability  for  injuries  caused  by  the  conspir- 
acy, by  the  fact  that  one  of  their  number 
was  of  unsound  mind.  Tucker  v.  Hyatt, 
151   Ind.   332,  51   N.   E.  469,  44:  129 

52.  The  unsoundness  of  mind  of  a  co-con- 
spirator at  the  time  of  the  trial  of  an  ac- 
tion to  recover  for  injuries  caused  by  the 
conspiracy  is  no  defense  to  any  of  the  guilty 
parties.  Id. 
Agent. 

Indictment  against,  see  Indictment,  etc.,  113. 
For  Editorial  Notes,  see  infra.  VI.  §§  6,  7. 

.i3.  The  fact  that  one  of  the  participants 
in  a  crime  was  a  mere  agent  of  another  does 
not  affect  his  criminal  liability  for  his  acts. 
Thompson  v.  State,  105  Tenn.  177,  58  S.  W. 
213,  51:883 

Principal. 
Locality    of   Prosecution   of   Accessory,    see 

Courts,  48. 
Charffing  Instigator  as,  see  Indictment,  etc., 

89. 
Instructions  as  to,  see  Trial,  854. 
See  also  Gamine,  10. 
For  Editorial  Notes,  see  infra,  VI.  §§  6,  7. 

54.  One  who  proposes  a  scheme,  and  puts 
in  motion  the  forces  by  which  court  records 
are  removed  from  the  files  for  the  purpose 
of  destroying  them,  is  guilty  as  principal 
throughout  the  transaction,  although  the 
papers  are  actually  removed  by  the  district 
attorney  under  permission  of  a  judge  of 
the  court,  and  placed  in  the  custody  of  a 
public  officer  for  delivery  to  the  one  who 
wishes  them.  People  v.  Mills,  178  N.  Y.  274, 
70  N.  E.  786,  67:  131 

55.  A  man  jointly  indicted  with  another 
for  rape  of  the  wife  of  the  former  cannot 


be  convicted  after  the  other  has  been  ac- 
quitted, although  he  is  indicted  as  a  prin- 
cipal in  the  offense,  since  he  could  be  guilty 
only  as  an  aider  and  abettor.  State  v. 
Haines,  51  La.  Ann.  731,  25  So.  372,  44:  837 
Advice  and  encouragement. 
See  also  supra,  40-45,  47,  55. 
For  Editorial  Notes,  see  infra,  VI.  §  6. 

56.  It  is  not  sufficient  to  charge  one  with 
murder  that  the  killing  was  in  pursuance 
of  his  advice,  counsel,  or  encouragement, 
unless  it  was  induced  thereby.  Powers  v. 
Com.  110  Ky.  386,  61  S.  W.  735,  53:245 

57.  One  who  advises  and  counsels  the  kill- 
ing of  members  of  the  legislature  is  guilty 
of  murder  without  any  reference  to  the 
question  whether  he  engages  in  a  conspir- 
acy to  do  or  procure  the  doing  of  sOme 
other  unlawful  act,  if  in  pursuance  of  such 
advice  and  counsel,  and  induced  thereby,  a 
member  is  killed.  Id. 

58.  One  who  is  present  at  the  commis- 
sion of  a  malicious  trespass,  advising  or  en- 
couraging the  destruction  of  property,  is 
equally  guilty  with  those  actually  commit- 
ting the  offense,  although  he  may  not  in 
person  injure  the  property,  since  in  misde- 
meanors all  concerned,  if  guilty  at  all,  are 
principals.  State  v.  Stark,  63  Kan.  529,  66 
Pac.  243.  54:  910 

f.  Instigation  or  Consent,  as  Defense. 
For  Editorial  Notes,  see  infra,  VI.  §  9. 

59.  No  crime  is  committed  where  one  ar- 
ranges to  have  a  crime  committed  acrainst 
his  property  or  himself,  and  knows  that  an 
attempt  is  to  be  made  to  encourage  others 
to  commit  the  act  and  to  lead  and  encour- 
age them  in  its  commission,  by  one  acting 
in  concert  with  the  owner.  Love  v.  People. 
160  111.  501,  43  N.  E.  710,  32:  139 

60.  The  owner  of  property  and  his  agent 
may  wait  passively  for  a  would-be  criminal 
to  perpetrate  an  offense  and  each  and  every 
part  of  it  for  himself,  but  must  not  aid,  en- 
courage, or  solicit  him  that  they  may  seek 
to  punish.  Id. 

61.  One  who  knows  of  a  crime  contem- 
plated against  him  may  remain  silent  and 
permit  matters  to  go  on,  for  the  purpose  of 
apprehending  the  criminal,  without  being 
held  to  have  assented  to  the  act.  State  v. 
Abley,  110  Iowa,  61,  80  N.  W.  225,      46:  862 

62.  The  fact  that  the  owner  of  a  build- 
ing to  whom  a  detective  disclosed  that  it 
was  probably  about  to  be  burglarized  by 
a  person  named,  with  the  feigned  assistance 
of  himself,  acting  for  the  purpose  of  secur- 
ing evidence  of  the  intended  burglary  and 
other  crimes,  did  not  take  steps  to  prevent 
the  burglary,  but  passively  allowed  it  to 
go  on,  is  not  a  consent  to  the  burglary  that 
will  be  a  defense  to  the  burglar.  State  v. 
Currie  ^N.  D.)  102  N.  W.  875.  69:  405 

63.  The  criminal  liability  for  breaking 
and  entering  a  store  building  and  talcing 
soods  therefrom  at  night  is  not  defeated  by 
the  fact  that  a  clerk  of  the  proprietor  knew 
that  the  offense  was  to  be  committed,  and, 
at  the  request  of  an  officer  acting  as  a  de- 
tective, had  loaned  his  key  in  order  to  per- 


902 


CRIMINAL  LAW,  U.  a. 


rait  a  duplicate  to  be  made  for  the  use  of 
the  burglar,  where  it  did  not  appear  that 
the  clerk  had  charge  of  the  building  or 
had  any  right  to  admit  persons  therein 
after  it  was  closed  for  the  night,  and  his 
conduct  was  not  known  to  the  proprietors, 
since  his  assent  to  the  entry  will  not  be  im- 
puted to  the  master.  State  v.  Abley,  109 
Iowa,  61,  80  N.  W.  225,  46:  862 

Apparent  co-operation  of  detective. 
Criminal  Liability  of  Detective,  see  Detect- 
ive. 
See  also  supra,  35,  62,  63. 

64.  A  conviction  of  larceny  will  not  be 
prevented  by  the  fact  that  one  of  the  sup- 
posed confederates  in  the  plan  had  informed 
the  police  and  the  intended  victim,  and 
was  acting  with  them  for  the  purpose  of 
detecting  and  punishing  the  guilty  parties, 
if  the  latter  had  no  knowledge  of  it  and 
performed  all  the  acts  necessary  to  consum- 
mate the  crime.  Com.  v.  Hollister,  157  Pa. 
13,  27  Atl.  386,  25:  349 

65.  Burglary  is  not  committed  by  those 
assisting  a  detective  in  entering  a  building 
and  taking  money  from  a  safe  in  pursuance 
of  a  previously  arranged  plan  between  him 
and  the  owner  with  the  sole  intent  of  en- 
trapping the  others  into  the  apparent  com- 
mission of  the  crime.  Love  v.  People,  160 
111.  501,  43  N.  E.  710,  32:139 

66.  The  acts  of  a  detective  who  appar- 
ently assists  in  a  burglary  for  the  purpose 
of  securing  evidence  of  the  same  and  other 
offenses  are  not  to  be  imputed  to  the  crim- 
inal, as  they  are  not  acting  in  a  common 
purpose.  JSlevertheless,  if  the  offense  is 
committed  by  the  person  charged,  as  to 
every  element  thereof,  he  may  be  found 
guilty,  notwithstanding  the  complicity  of 
the  detective.  State  v.  Currie  (N.  D.)  102 
N.  W.  875,  69:405 

67.  Upon  the  trial  of  one  charged  with 
burglary,  the  mere  fact  that  one  who  was 
present  with  and  assisted  him  in  the  burg- 
lary was  a  detective  is  not  a  defense,  if  the 
detective  did  not  instigate  the  crime,  and 
it  was  committed,  as  to  every  ingredient 
of  it,  by  the  criminal.  Id. 


II.  Procedure, 
a.  In    General. 

Right  to  Appeal  in  Criminal  Case,  see  Ap- 
peal and  Error,  I.  c;  and  also  infra, 
VI.  §   12. 

Arrest  of  Judgment  on  Appeal,  see  Appeal 
and  Error,  168. 

Furnishing  Stenographer's  Notes  to  Per- 
son Convicted,  see  Appeal  and  Error, 
182. 

Dismissal  of  Appeal  Because  of  Appellant's 
Escape,  see  Appeal  and  Error,  378. 

Presumptions  on  Appeal,  see  Appeal  and 
Error,  448-452. 

Appeal  from  Death  Warrant,  see  Appeal 
and   Error,  517. 

Discretion  as  to  Discharge  of  Jury,  see  Ap- 
peal and  Error,  571. 


First  Raising  Question  of  Jurisdiction  on 
Appeal,  see  Appeal  and  Error,  597. 

Review  of  Verdict,  see  Appeal  and  Error, 
736-738. 

Effect  of  Judge's  Temporary  Absence,  see 
Appeal  and  Error,  1112. 

Prejudicial  Error  in  Admission  of  Evidence, 
see  Appeal  and  Error,  907-910. 

Prejudicial  Error  in  Summoning  and  Selec- 
tion of  Jury,  see  Appeal  and  Error,  VII. 
m,  7,  b. 

Bail  and  Recognizance,  see  Appeal  and  Er- 
ror,  146;   Bail  and  Recognizance. 

Certiorari  in  Criminal  Case,  see  Certiorari, 
8,  41. 

Review  of  Quashing  of  Appeal,  see  Certio- 
rari, 27. 

Constitutional  Provision  as  to  Criminal 
Trials,  see  Constitutional  Law,  62. 

Changing  Practice  in,  see  Constitutional 
Law,  99-102,   185. 

Equal  Protection  and  Privileges  as  to  Jury, 
see  Constitutional  Law,  595i  596. 

Contempt  Proceedings  in  Name  of  th^  Peo- 
ple, see  Contempt,  64. 

Continuance  in  Criminal  Case,  see  Contin- 
uance and  Adjournment. 

Review  of  Conviction  by  Writ  of  Error 
Coram  Nobis,  see  Coram  Nobis. 

Effect  of  State  Law  on  Criminal  Procedure 
in  Federal  Court,  see  Courts,  366. 

Jurisdiction  in  Criminal  Case,  see  Courts, 
L  b,  2;  II.  a,  6;  HI.  h:  IV.  d,  2;  and 
also  infra,  VI.  §§   13,  14. 

Loss  of  Jurisdiction,  see  Courts,  255. 

Private  Counsel  to  Aid  Prosecution,  see  Dis- 
trict and  Prosecuting  Attorneys,  3,  4. 

Evidence  in  Criminal  Cases  Generally,  see 
Evidence. 

Presumption  and  Burden  of  Proof,  see  Evi- 
dence, 219,  231-235,  243,  330-338,  35»- 
360.  388-391,  399,  424,  763-765;  XIII. 
§§  14,  27,  29,  65-75,  87-89,  92-95. 

Letters  as  Evidence,  see  Evidence,  956, 
957. 

Conviction  of  Crime  as  Evidence,  see  Evi- 
dence,  876-881. 

Admissibility  of  Dying  Declarations,  see 
Evidence,  X.  1. 

Evidence  as  to  Declarations  of  Acts  of  Ac- 
cused, see  Evidence,  1537-1540. 

Proof  of  Acts  or  Declarations  of  Co-con- 
spirators, see  Evidence,  X.  g. 

Relevancy  of  Evidence  Generally  see  Evi- 
dence, XI.  t. 

Evidence  as  to  Character  and  Reputation 
of  Accused,  see  Evidence,  1747-1749. 

Evidence  of  Other  Crimes,  see  Evidence,  XI. 
k. 

Sufficiency  of  Proof,  see  Evidence,  XII.  1. 

Variance  between  Allegations  and  Proof, 
see  Evidence,  2417-2424. 

Defense  to  Prosecution  for  Obtaining  Money 
by  False  Pretenses,  see  False  Pre- 
tenses, 12. 

Competency  of  Juror,  see  Jury,  II.  b. 

Jurisdiction  of  Justices,  see  Justice  of  the 
Peace,  17-20. 

Grounds  for  New  Trial,  see  New  Trial,  14. 

Removal  of  Criminal  Case,  see  Removal  of 
Causes,  8,  40-42,  and  also  infra,  §  13. 


CRIMINAL  LAW,  IL  a. 


903 


Unreasonable    Searches    and    Seizures,    see 

Search  and  Seizure. 
Directing  Jury  to  Return  Verdict  of  Guilty, 

see  Tri*il,  573. 
Election  between  Counts  of  Indictment,  see 

Trial,  8,  9. 
Order  of  Proof,  see  Appeal  and  Error,  1119  j 

Trial,  23,  24. 
Jury  as  Judges  of  the  Law,  see  Trial,  111, 

112. 
Submission   of   Case   or  Question  to   Jury, 

see  Trial,  II. 
Argument  of  District  Attorney,  see  Appeal 

and  Error,  1091a,  1092,  1097,  1101,  1104a, 

HOG;  Trial,  38,  47,  49,  50,  57-59. 
Instructions   in   Criminal   Case,   see   Appeal 

and  Error,   1042,  1057,  lOCO,  1070-1072, 

1080,   1090;    Trial,  IIL 
Verdict    in   Criminal   Case,    see    Tpial,   890, 

916-923,  928. 
Venue  of  Criminal  Cases,  see  Venue,  17-19, 

22-30. 
Indorsing  Names  of  Witnesses  on  Informa- 
tion, see  Witnesses,  23. 
Competency  of  Witnesses,  see  Witnesses,  I. 
Accomplice  as  Witness,  see  Witnesses,  17- 

20. 
Examination   of  Witnesses,   see  Witnesses, 

II. 
Cross-Examination  of  Witnesses,  see  Wit- 
nesses, II.  b. 
Impeachment    or    Discrediting    of    Witness, 

see  Witnesses,  III. 
Corroboration    of    Witness,    see    Witnesses, 

193-200. 
For  Editorial  Notes,  see  infra,  VI.  §§  12-27. 

68.  Constitutional  provisions  and  forms  of 
proceedings  relating  to  crimes  denounced  by 
the  public  criminal  statutes  of  the  state  do 
not  apply  to  violations  of  mere  municipal 
ordinances,  save  to  a  very  qualified  extent. 
State  V.  Boneil,  42  La.  Ann.  1110,  8  So. 
298,  10:  60 

69.  It  is  the  mandatory  duty  of  a  record- 
er before  whom  complaints  of  murder  are 
lodged,  to  proceed  to  the  investigation  there- 
of, unless  the  grand  jury  discharges  the  ac- 
cused, or  the  state  discontinues  the  prosecu- 
tion before  him.  State  ex  rel.  Matranga  v. 
Bringier,  42  La.  Ann.  1091,  8  So.  279, 

10:  137 

70.  A  statute  making  an  offense  punish- 
able by  fine  a  misdemeanor  within  the 
law  governing  procedure  does  not  include 
fines  imposed  for  violation  of  municipal  or- 
dinances. Ogden  V.  Madison,  111  Wis.  413, 
87  N.  W.  568,  55:  506 

71.  Under  a  statute  making  ihe  violation 
of  the  conditions  of  his  release  by  %  con- 
vict an  offense  to  which  a  penalty  is  at- 
tached, he  cannot  be  returned  to  prison  un- 
der the  old  mittimus  or  a  copy  thereof,  but 
he  is  entitled  to  have  his  guilt  established 
in  a  new  proceeding.  Re  Conditional  Dis- 
charge of  Convicts,  73  Vt.  414,  51  Atl.  10, 

56:  658 

72.  A  mistrial  will  result  from  changing 
the  judge,  without  defendant's  consent,  dur- 
ing the  trial  of  a  criminal  case,  when  the  ar- 
gument to  the  jury  is  in  progress,  the  new 
judge  being  required  to  read  the  defend- 
ant's instructions   to  the  jury,  which  have 


been  approved  by  his  predecessor,  and  to 
pass  upon  those  presented  by  the  state,  al- 
though the  judges  belong  to  the  same  cir- 
cuit, and  the  statute  permits  such  judges 
to  interchange  with  each  other  and  per- 
form each  other's  duties.  Durden  v.  People, 
192  111.  493,  61  N,  E.  317,  55:240 

73.  Ordering  the  trial,  upon  a  plea  of  not 
guilty  in  a  criminal  case,  to  proceed  before 
the  same  jury  that  has  disagreed  and  been 
discharged  upon  a  special  issue  of  insanity, 
is  error  under  a  statute  which  provides 
that  in  case  of  such  disagreement  the  court 
shall  order  the  trial  to  proceed  on  the  plea 
of  "not  guilty,"  without  providing  that  it 
shall  proceed  before  the  same  jurv.  French 
v.  State,  85  Wis.  400,  55  N.  W.  566,  21:  402 

74.  An  information  charging  one  with 
crime  may  be  filed  in  vacation.  State  v. 
Kyle,  166  Mo.  287,  65  S.  W.  763,  56:  115 
Preliminary  examination. 

Law  Changing  Place  of,  as  Ex  Post  Faoto, 
see  Constitutional  Law,  101. 

Parol  Evidence  of  Testimony  at,  see  Evi- 
dence, 776,  777. 

In  Extradition  Proceeding,  see  Extradition, 
6. 

Release  for  Errors  on,  see  Habeas  Corpus, 
17,  19. 

75.  A  preliminary  examination  is  not  an 
action;  the  proceeding  is  not  according  to 
the  course  of  the  common  law;  but  it  is 
purely  statutory  and  compliance  with  the 
statute  is  requisite  to  jurisdiction  at  every 
step.  State  ex  rel.  Durner  v.  Huegin,  110 
Wis.  189,  85  N.  W.  1046,  62:  700 

76.  An  exaimination  to  determine  whether 
a  criminal  prosecution  shall  be  commenced 
is  a  judicial  proceeding  in  that,  so  far  as 
the  magistrate  acts  within  his  jurisdiction, 
his  decision  is  as  binding  for  the  purposes 
of  such  proceeding  when  it  is  right  a-s  when 
it  is  wrong,  but  if  there  is  no  evidence  rea- 
sonably permitting  of  action,  a  decision 
upon  a  contrary  theory  is  in  excess  of  juris- 
diction. Id. 

77.  The  rule  that  the  accused  is  entitled 
to  the  benefit  of  any  doubt  does  not  apply 
in  preliminary  examinations.  Marks  v.  Sul- 
livan, 8  Utah,  406,  32  Pac.  668,  20:  590 

78.  The  mere  fact  that  the  order  holding 
the  accused  to  answer  for  a  crime  was  dated 
October  4,  when  the  arrest  was  made  Sep- 
tember 17,  does  not  show  that  the  commit- 
ting magistrate  had  lost  jurisdiction  of  the 
case  by  delay,  for  the  examination  may 
have  been  proceeded  with  immediately  after 
the  arrest  and  continued  until  the  order 
was  made.  People  v.  Ebanks,  117  Cal.  652, 
49  Pac.  1049,  40:  269 
Necessity  of  presentment. 

79.  A  crime  is  infamous  within  the  mean- 
ing of  a  constitutional  provision  that  no 
person  shall  be  held  to  answer  for  such 
crimes  unless  on  presentment  of  a  grand 
jury,  if  conviction  will  result  in  an  im- 
prisonment for  at  least  a  year,  which  may 
in  the  discretion  of  the  court  be  in  the  state 
prison.    Re  Butler,  84  Me.  25,  24  Atl.  456. 

17:  764 

80.  A  violation  of  the  rules  and  regula- 
tions of  the  Minnesota  military  code  does 


904 


CRIMINAL  LAW,  II.  b. 


not  constitute  a  "criminal  offense,"  within 
the  meaning  of  §  7  of  the  Minnesota  Bill  of 
Eights,  respecting  presentments  or  indict- 
ments. State  ex  rel.  Madigan  v.  Wagener, 
74  Minn.  518,  77  N.  W.  424,  42:  749 

81.  The  attempt  to  give  police  courts  con- 
current jurisdiction  with  the  supreme  court 
in  any  criminal  case  where  the  fine  does  not 
exceed  $200  and  the  term  of  imprisonment 
does  not  exceed  one  year,  although  the  of- 
fenses thus  punishable  were  not  within  the 
jurisdiction  of  a  justice  of  the  peace  in  1784, 
renders  N.  H.  Laws  1895,  chap.  117,  uncon- 
stitutional, because  it  impairs  the  constitu- 
tional right  of  trial  by  jury,  and  of  a  pre- 
sentment or  indictment  before  prosecution 
in  cases  in  which  such  rights  existed  when 
the  state  Constitution  was  adopted.  State 
V.  Gerry,  66  N.  H.  495,  38  Atl.  272,  38:  228 
Leave  to  file  information. 

82.  Leave  of  court  was  not  necessary  at 
common  law  to  authorize  the  filing  of  an 
information  for  the  prosecution  of  a  crim- 
inal. State  V.  Kvle,  166  Mo.  287,  65  S.  W. 
76.3,  '  56:  U5 

82a.  Leave  of  court  is  not  necessary  to  the 
filing  of  an  information  by  the  district  at- 
torney charging  the  commission  of  crime. 
State  V.  Gugiielrao  (Or.)  79  Pac.  577, 

69:  466 

S2b.  In  the  absence  of  evidence  to  the 
contrary,  a  deputy  district  attorney  who 
signs  tiie  name  of  the  district  attorney  to 
the  information  will  be  presumed  to  have 
possessed  plenary  power  in  the  premises, 
and  to  have  been  authorized  to  examine 
witnesses  to  enable  him  intelligently  to 
charge  persons  with  the  commission  of 
crimes,  to  prepare  informations,  sign  the 
name  of  the  district  attorney  thereto,-  and 
file  them  in  court.  Id. 

Second  indictment. 

8.3.  A  grand  jury  may,  without  hearing 
witnesses,  return  a  second  indictment 
against  a  person  for  the  same  offense 
charged  in  the  first  one,  for  the  purpose  of 
correcting  a  formal  description.  Xordlinger 
v.  United  States,  24  App.  D.  C.  406,  70:  227 
Nolle  prosequi;  dismissal  of  indictment. 
For  Editorial  Notes,  see  infra,  VI.  §  24. 

84.  The  right  of  a  prosecuting  attorney 
to  enter  a  nolle  prosequi  in.  a  criminal  pro- 
ceeding does  not  continue  after  a  conviction 
by  verdict  of  guilty  although  sentence  may 
not  have  been  pronounced.  State  ex  rel. 
Butler  V.  Moise,  48  La.  Ann.  109,  18  So. 
943,  35:  701 

85.  The  dismissal  of  an  indictment  on  the 
motion  of  the  county  attorney  after  it  has 
been  attacked  by  demurrer  is  not  equivalent 
to  a  decision  of  the  court  sustaining  the 
demurrer,  so  as  to  prevent  the  case  from  be- 
ing resubmitted  to  the  same  or  another 
grand  jury  without  order  of  the  court,  as 
would  otherwise  be  required  under  Minn. 
Gen.  Stat.  1894,  §§  7297-7299.  State  v. 
Peterson,  61  Minn.  73,  63  K  W.  171, 

28:  324 


b.  Protection   and   Rights   of   Accused  Gen- 
erally. 

Commitment  of  Witness  for  Defendant  in 
Absence  of  Jury,  see  Appeal  and  Error, 
551. 

iiarmless  Error  in  Instruction  as  to  Ac- 
cused's Failure  to  Testify,  see  Appeal 
and  Error,  1042. 

Applause  as  Ground  for  Reversing  Convic- 
tion, see  Appeal  and  Error,  856. 

Equal  Protection  as  to  Right  of  Appeal,  see 
Constitutional  Law,  601. 

Due  Process  as  to  Jury,  see  Constitutional 
Law,  807-809. 

Due  Process  in  Compulsory  Physical  Exam- 
ination of  Accused,  see  Constitutional 
Law,  824. 

Duty  of  Prosecutor  as  to,  see  District  and 
Prosecuting  Attorneys,   1. 

Admissibility  of  Evidence  Obtained  by  Un- 
reasonable Search,  see  Evidence,  1025, 
1036. 

Evidence  of  Custom  to  Search  Prisoners, 
see  Evidence,  2188. 

Right  to  Trial  by  Jury,  see  Jury,  I.  b,  2;  I. 
d,  2;  and  afso  infra,  VL  16. 

Cross-Examination  of  Accused,  see  Wit- 
nesses,  108-115. 

For  Editorial  Notes,  see  infra,  VI.  §   16. 

86.  Filing  indictments  against  witnesses 
to  prove  an  alibi,  based  solely  on  evidence 
of  witnesses  for  the  prosecution,  in  the  pres- 
ence of  persons  summoned  to  serve  as  jurors 
in  the  trial  of  the  case,  is  improper  as  not 
calculated  to  give  the  accused  a  fair  and 
impartial  trial.  Atkins  v.  Com.  98  Kv.  539, 
33S.  W.  948,  32:108 

87.  Requiring  a  defendant  in  a  criminal 
case  to  stand  up  or  sit  down  in  the  presence 
of  the  jury  at  any  particular  time  is  within 
the  discretion  of  the  trial  judge,  involving 
no  constitutional  right.  People  v.  Gardner, 
144  N.  Y.  119,  38  N.  E.  1003,  28:  699 
Public  trial. 

See  also  infra,  90. 

For  Editorial  Notes,  see  infra,  VI.  §  12. 

88.  The  constitutional  right  to  a  "public 
trial"  in  a  criminal  case  is  violated  by  an 
order  of  the  court  to  a  police  officer  station- 
ed at  the  door  of  the  court  room  to  "see 
that  the  room  is  not  overcrowded,  but  that 
all  respectable  citizens  be  admitted  and 
have  an  opportunity  to  get  in  whenever 
thev  shall  apply."  where  it  is  shown  that 
citizens  and  taxpayers  were  excluded  by 
such  officer  while  the  seats  provided  for 
spectators  ware  not  all  occupied.  People  v. 
Murray,  89  Mich.  276,  50  N.  W.  995, 

14:  809 

89.  The  fact  that  people  might  obtain  ad- 
mission to  a  court  room  by  a  private  en- 
trance through  the  clerk's  ofllice  is  no  an- 
swer to  the  charge  that  the  constitutional 
right  to  a  public  trial  was  denied  by  an 
order  of  the  court  in  pursuance  of  which 
they  were  refused  admittance  at  the  public 
entrance.  Id. 
Speedy  trial. 

Soo  also  supra.  78;   infra,  149. 
For  Editorial  Notes,  see  infra,  VT.  §  25. 
00.  Statutory    provisions    permitting   one 


CRIMINAL  LAW,  IL  b. 


905 


accused  of  felony,  who  has  been  released 
from  custedy  because  not  brought  to  trial 
within  sixty  days  as  required  by  statute, 
to  be  rearrested  for  the  same  offense,  do  not 
violate  constitutional  provisions  guarantee- 
ing accused  persons  the  right  to  a  speedy 
and  public  trial.  Re  Begerow,  136  Cal.  293, 
68  Pac.  773,  56:  528 

9L  The  lapse  of  more  than  sixty  days  af- 
ter a  mistrial  without  placing  the  case' on 
the  calendar  for  retrial  or  good  cause  shown 
for  the  failure  to  do  so,  the  delay  not  being 
caused  by  or  with  the  consent  of  the  ac- 
cused, will  entitle  him  to  discharge  under 
habeas  corpus,  where  the  Constitution  guar- 
antees him  a  speedy  trial,  and  the  statute 
provides  that  prosecutions  shall  be  dis- 
missed if,  in  the  absence  of  good  cause 
shown,  the  accused  is  not  brought  to  trial 
within  sixty  days  after  filing  the  indict- 
ment, and  the  trial  is  not  postponed  upon 
his  application.  Re  Begerow,  133  Cal.  349, 
65  Pac.  828,  56:  513 

92.  Prisoners  out  on  bail  who  do  not  ap- 
pear and  demand  trial  cannot  demand  their 
release  for  failure  to  prosecute  after  the 
third  term  under  a  statute  providing  that 
in  case  a  prisoner  is  admitted  to  bail  the 
court  may  continue  the  trial  of  the  cause 
to  the  thira  term  if  it  shall  appear  that 
the  witnesses  for  the  people  are  absent  and 
their  testimony  material.  Meadowcroft  v. 
People,  103  111.  56,  45  N.  E.  303,  35:  176 
Presence  of  accused. 

Presumption  as  to,  on  Appeal,  see  Appeal 
and   Error,  452. 

Estoppel  to  Complain  of  Reception  of  Ver- 
dict in  Absence  of  Accused,  see  Appeal 
and  Error,  488. 

View  by  Jury  in  Absence  of,  see  Appeal 
and  Error.  500. 

For  Editorial  Notes,  see  infra,  VI.  §  16. 

93.  A  statute  permitting  a  verdict  when 
defendant  is  voluntarily  or  wilfully  absent 
does  not  violate  his  constitutional  right  to 
be  present  at  the  trial.  State  v.  Hope,  100 
Mo.  347,   13  S.  W.  490,  8:  608 

94.  The  constitutional  right  of  a  person 
charged  with  a  felony  to  be  present  during 
his  trial  is  not  infringed  by  a  statute  which 
permits  the  trial  to  proceed  in  his  ab- 
sence, if  he  absents  himself  pending  the 
trial.  Gore  v.  State,  52  Ark.  285,  12  S.  W. 
564.  5:  832 

95.  The  fact  of  sickness  of  an  absent  ju- 
ror, which  is  one  ground  under  the  statute 
for  discharging  the  jnrj,  cannot  be  deter- 
mined on  trial  for  a  felony,  in  the  absence 
of  defendant  from  the  court  room,  ^tate 
V.  Smith,  44  Kan.  75,  24  Pac.  84,  8:  774 
Right  to  meet  witnesses. 

Refusal  of  Continuance  for  Absence  of  Wit- 
ness, as  Violation  of,  see  Continuance 
and  Adjournment,  20,  22. 

Use  of  Deposition  on  Trial,  see  Depositions, 
13. 

See  also  Evidence.  839. 

For  Editorial  Notes,  see  infra,  VI.  §   16. 

96.  One  accused  of  crime  is  not  con- 
fronted with  the  witness  against  him,  with- 
in the  meaning  of  Utah  Const,  art.  1,  §  12, 
when  he  is  compelled  to  sit  24  feet  from  the 


witness,  so  that  he  cannot  hear  her  testi- 
mony or  see  her  face,  or  see  the  jury,  al- 
though the  witness  states  that  she  is  afraid 
to  tell  because  she  is  afraid  of  the  defend- 
ant, and  will  not  testify  until  he  is  re- 
moved from  immediately  facing  her.  State 
v.  Mannion,  19  Utah,  505,  57  Pac.  542, 

45:  638 

97.  Reading  on  a  second  trial  of  a  crim- 
inal case  testimony  of  a  witness  who  died 
after  the  first  trial,  at  which  accused  was 
present  and  represented  by  counsel,  who  was 
accorded  the  right  of  cross-examination, 
does  not  infringe  the  right  of  the  accused 
to  be  confronted  with  the  witnesses  against 
him,  in  the  presence  of  the  court.  People 
V.  Elliott,  172  N.  Y.  146,  64  N.  E.  837, 

60:  318 

Crimination  of  self. 

Privilege  of  Person  Charged  with  Contempt, 
see  Contempt,  71. 

Claim  of  Exemption  from  Discovery  on 
Ground  of,  see  Discovery  and  Inspec- 
tion, 3. 

Evidence  of  Confessions,  see  Evidence,  VIII. 

Admission  of  Account  Books  as  Violation  of 
Privilege  against,  see  Evidence,  929. 

Compelling  Disclosure  of  Possession  of  De- 
cedent's Property,  see  Executors  and 
Administrators,  111. 

Right  to  Ask  Juror  Criminating  Question, 
see  Jury,  103. 

As  to  Privilege  of  Witnesses  Generally, 
see  Witnesses,  II.  c. 

See  also  supra,  87  >  Evidence,  1538. 

For  Editorial  Notes,  see  infra,  VI.  §§  20,  21. 

98.  Compelling  the  defendant  in  a  crim- 
inal case  to  stand  up  for  the  purpose  of 
identification  does  not  violate  the  constitu- 
tional provision  against  compelling  one  to 
be  a  witness  against  himself.  People  v. 
Gardner,  144  N.  Y.  119,  38  N.  E.  1003, 

28:  699 

99.  The  admission  of  testimony  as  to 
marks  and  scars  found  upon  the  person  of  a 
defendant  in  a  criminal  prosecution,  during 
a  forcible  examination  of  him  with  a  view 
to  ascertaining  his  identity  for  the  purpose 
of  arresting  him,  is  not  prohibited  by  a  con- 
stitutional provision  that  no  person  in  any 
criminal  prosecution  shall  be  compelled  to 
testify  against  himself.  O'Brien  v.  State, 
125  Ind.  38,  25  N.  E.  137,  9:  323 

100.  The  use  of  an  envelope  containing  no 
writing,  but  pictures,  merely  as  evidence 
against  an  accused  nrson  in  order  to  show 
that  his  conduct  in  respect  to  these  articles 
was  incriminating,  is  not  in  violation  of  a 
constitutional  guaranty  that  he  shall  not  be 
compelled  to  give  evidence  against  himself, 
although  the  envelope  and  inclosures  were 
taken  from  his  premises  by  a  trespasser. 
State  V.  Griswold,  67  Conn.  290,  34  Atl. 
1046,  33:227 

101.  Compelling  samples  of  milk  to  be 
furnished  by  dealers  for  inspection  and 
analysis  is  not  unconstitutional  as  forcing 
them  to  furnish  evidence  against  them- 
selves. State  V.  Dupaquier,  46  La.  Ann. 
577.  15  So.  502,  26:  162 

102.  The  use  of  private  property  illegally 
seized  by  the  police  officers  against  vne  ac- 


ft06 


CRIMINAL  LAW.  II.  c,  d. 


(■used  of  crime  does  not  violate  the  consti- 
tutional provision  that  no  one  shall  in  any 
I  riminal  case  be  compelled  to  be  a  witness 
against  himself.  People  v.  Adams,  176  N. 
V.  351.  68  N.  E.  636,  63:  406 

Trial  before  drunken  juror. 

103.  The  conviction  of  a  person  of  a 
crime  which  La.  Const.  1898,  art.  116,  re- 
<juires  should  be  tried  by  a  jury  of  twelve, 
though  nine  jurors  concurring  may  render 
a  verdict,  is  not  a  legal  conviction,  though 
twelve  jurors  are  physically  present  during 
the  trial,  and  all  concur  in  a  verdict  of 
guilty,  if  one  member  of  the  jury  is  in  a 
drunken  condition  during  the  trial.  State 
v.  Ned,  105  La.  696,  30  So.  126,  54:  933 
Fettering. 

For  Editorial  Notes,  see  infra,  VI.  §  22. 

104.  The  ancient  right  of  one  accused  of 
frime  under  an  indictment  or  information, 
to  appear  in  court  unfettered,  is  preserved 
by  legislative  adoption  of  the  common  law. 
State  V.  Williams,  18  Wash.  47,  50  Pac. 
580,  39:  82) 

105.  The  rights  of  an  accused  person  to  a 
fair  trial  are  impaired  by  keeping  manacles 
on  other  persons  who  are  kept  in  court  and 
in  the  presence  of  the  jury,  when  they  have 
been  found  guilty  of  the  crime  of  burglary, 
with   which  he  also  is  charged.  Id. 

106.  The  constitutional  rig'ht  of  an  ac- 
cused person  to  appear  and  defend  in  person 
includes  the  right  to  be  unfettered,  unless 
some  impelling  necessity  demands  his  re- 
straint to  secure  the  safety  of  others  and 
his  own  custody.  Id. 
Waiver  or  loss  of  right. 

irregularity  as  to  Arraigning  Defendant  and 
Receiving  Plea,  see  Appeal  and  Error, 
675. 

See  also  infra,  131-133. 

For  Editorial  Notes,  see  infra,  VI.  §  16. 

107.  A  constitutional  right  cannot  be 
waived  by  the  defendant  or  his  coimsel  in  a 
felony  case,  but  a  statutory  right  may  be 
waived.  Queenan  v.  Territorv.  11  Okla.  261, 
71  Pac.  218,  ■  61:  .324 

108.  Defendant  who  goes  to  trial  with- 
out objection  that  a  copy  of  the  indictment 
and  a  list  of  the  jurors  has  not  been  served 
upon  him  therebv  waives  such  omission. 
Parker  v.  People,  13  Colo.  155.  21  Pac.  1120, 

4:  803 

109.  Defendant  in  a  criminal  action  did 
not  lose  his  right  to  complain  of  the  ab- 
sence of  a  witness,  which  was  not  in  any 
way  occasioned  by  him  or  his  counsel,  be- 
cause such  witness  was  present  at  an  earlier 
period  of  the  trial,  and  requested  defend- 
ant's counsel  to  be  allowed  at  that  time  to 
go  on  the  stand  and  testify,  and  was  subse- 
quently compelled  to  leave  the  court  for 
providential  cause,  as  it  is  defendant's 
right  to  introduce  his  witnesses  in  the  or- 
der in  which  he  or  his  counsel  mav  deem 
best.  Rvder  v.  State.  100  Ga.  528,  28  S.  E. 
246.         '  38:  721 

c.  Warrant;     Commitment. 

Warrant  for  Extradition,  see  Extradition. 
32-38. 

110.  In  a  state  where  the  use  of  jails  for 


United  States  prisoners  is  permitted,  wften- 
ever  a  prisoner  is  committed  to  jail  a  copy 
ot  the  writ  of  commitment,  showing  the 
grounds  therefor,  should  be  left  with  the 
jailer,  whether  the  commitment  is  pending 
examination,  or  for  trial,  or  after  convic- 
tion.   Erwin  v.  United  States,  37  Fed.  470, 

2:  229 
SufiSciency  of  warrant  of  commitment. 

111.  A  warrant  of  commitment  for  trial 
which  states  the  offense  charged  with  con- 
venient certainty  is  sufficient  if  good  in  all 
other  respects.  State  ex  rel.  Durner  v. 
Huegin,  110  Wis.  189,  85  N.  W.  1046. 

62:  700 

112.  The  rule  that  a  form  for  a  commit- 
ment prescribed  by  statute  must  be  strictly 
followed  does  not  mean  literally  followed 
unless  the  statute  clearly  so  indicates.     Id. 

113.  The  formal  language,  "against  the 
peace  and  dignity  of  the  state  of  Wisconsin, 
and  the  statutes  in  such  case  made  and  pro- 
vided," or  equivalent  formal  words,  is  un- 
necessary to  either  a  criminal  complaint  or 
warrant  of  commitment  for  trial.  Id. 

114.  The  statutory  form  for  a  commit- 
ment found  in  Wis.  Rev.  Stat.  1898,  § 
4774,  is  satisfied  by  the  use  of  language  in- 
cluding all  material  elements,  though  such 
language  departs  from  the  particular  word- 
ing of  the  form.  Id. 

115.  The  rule  of  convenient  certainty  as 
to  describing  the  offense  in  a  warrant  of 
commitment  does  not  require  the  facts  to 
be  stated  in  detail;  a  statement  thereof 
according  to  their  legal  effect  is  sufficient. 

Id. 
116-18.  The  description  of  an  offense  in  a 
warrant  of  commitment  by  its  generic 
name,  if  it  has  one,  whether  the  offense  be 
statutory  or  one  known  to  the  common  law, 
states  by  reasonable  inference  all  the  facts 
requisite  to  such  offense.  Id. 

d.  Necessity  of  Indictment  or  Information. 

Self-Executing  Provision  as  to,  see  Consti- 
tutional Law,  94. 

Equal  Protection  as  to,  see  Constitutional 
Law,  593. 

As  to  Requisites  and  Sufficiency  of  Indict- 
ment, Information,  or  Complaint,  see 
Indictment,  etc. 

See  also  supra,  80,  81;   infra,  215. 

Of  indictment. 

For  Editorial  Notes,  see  infra,  VI.  §  12. 

119.  Indictment  by  a  grand  jury  is  not 
necessary  to  due  process  of  law,  so  as  to 
preclude  the  institution  of  a  criminal  pros- 
ecution bv  information.  State  v.  Gug- 
lielmo  (Or.)  79  Pac.  577.  69:  466 

120.  Prosecution  upon  an  information 
filed  by  the  district  attornev,  as  provided 
by  Or.  Sess.  Laws  1S99.  p.  99,  instead  of 
upon  indictment  of  a  grand  jury,  is  suf- 
ficient to  constitute  due  process  of  law  with- 
in the  meaning  of  U.  S.  Const.  14th  Amend., 
where  all  the  ritrhts  and  privileges  of  a  reg- 
ular trial  are  preserved  to  the  accused.  State 
V.  Tucker,  36  Or.  291.  61  Pac.  894,       51:  246 

121.  An  act  providing  for  an  information 
by  the  district  attorney  in  place  of  an  in- 


CRIMINAL  LAW,  II.  e,  f. 


907 


dictment  by  a  grand  jury,  but  that  the  cir- 
cuit court  may  convene  a  grand  jury  when- 
ever in  its  opinion  it  is  deemed  advisable  to 
do  so,  is  authorized  by  Or.  Const,  art.  7,  § 
18,  regulating  the  organization  of  grand 
juries,  and  giving  the  legislature  power  to 
modify  or  abolish  them.  Id. 

122.  Under  a  constitutional  provision  for 
the  constitution  of  a  grand  jury,  which  em- 
powers the  legislature  to  modify  or  abolish 
it,  provision  may  be  made  for  the  institution 
of  criminal  proceedings  by  information 
without  the  entire  abolition  of  the  grand 
jury.     State  v.  Guglielmo  (Or.)  79  Pac.  577, 

69:  466 

123.  A  statute  prescribing  the  procedure 
is  not  necessary  to  permit  the» filing  of  in- 
formations under  a  constitutioftal  amend- 
ment forbidding  the  prosecution  of  crimi- 
nals except  by  indictment  or  information, 
although  prosecution  by  information  was 
not  authorized  prior  to  the  amendment, 
since  the  common-law  information  may  be 
resorted  to.  State  v.  Kyle,  166  Mo.  287,  65 
S.  W.  763,  56:  115 
Of  information. 

124.  The  constitutional  right  to  an  accu- 
sation by  information  before  being  put  on 
trial  for  a  misdemeanor  stands  on  the  same 
ground,  under  X.  H.  Const,  art.  88,  as  the 
right  to  indictment  before  being  on  trial  for 
felony.  State  v.  Gerry,  68  N.  H.  495,  38  Atl. 
272,  38:  228 

e.  Concurrent  Proceedings. 

As  to  Offense  against  DiflFerent   Sovereign- 
ties, see  infra,  III. 
See  also  infra.  143. 

125.  The  fact  that  a  prosecution  is  pend- 
ing in  another  court  for  an  offense  against 
the  statutes  of  the  state  does  not  deprive 
a  municipal  court  of  jurisdiction  to  try  the 
offender  for  the  same  act  as  an  offense 
against  a  municipal  ordinance.  Anderson 
V.  O'Donnell.  29  S.  C.  355,  7  S.  E.  523, 

1 :  632 

126.  The  fact  that  the  grand  jury  is  in- 
vestigating a  charge  of  murder  against  ac- 
cused in  custody  without  the  benefit  of  bail 
is  no  justification  for  a  recorder  to  decline 
to  fix  and  examine  the  complaint  before 
him.  Such  investigation  does  not  suspend 
the  pending  prosecution  before  the  recorder. 
State  ex  rel.  Matranga  v.  Bringier,  42  La. 
Ann.  1091.  8  So.  279.  10:  137 

f.  Pleading;  Motions;  Demurrer. 

Confining  Proof  to  Facts  Stated  in  Bill  of 
Particulars,  see  Evidence,  2061. 

As  to  Requisites  and  SuflTiciency  of  Indict- 
ment, Information,  and  Complaint,  see 
Indictment,  etc. 

Quashing  of  Indictment,  see  Indictment, 
etc.,    IV. 

See  also  infra,  144. 

For  Editorial  Notes,  see  infra,  VI.  §  17. 

127.  No  pleading  is  necessary  to  support 
the   production   of   a   pardon   in   a   criminal 


case.    Powers  v.  Com.  110  Ky.  386,  61  S.  W. 
735,  53:245 

Mode  of  raising  questions. 
See  also   infra,   137. 

128.  Failure  of  an  indictment  to  set  forth 
the  offense  with  sufficient  clearness  and 
certainty  must  be  taken  advantage  of  by 
demurrer,  and  not  urged  under  a  plea  of 
not  guilty.  Blum  v.  State,  94  Md.  375,  51 
Atl.  26,  56:  322 

129.  An  objection  to  an  indictment  which 
shows  a  fatal  defect  upon  its  face  may  be 
taken  by  demurrer,  though  a  plea  of  abate- 
ment will  be  necessary  if  the  defect  is  not 
apparent  on  its  face.  State  v.  Vincent,  91 
Md.  718,  47  Atl.  1036,  52:  83 

130.  A  verified  plea  in  abatement  is  the 
only  mode  of  raising  the  question  that  an 
information  cannot  be  filed  while  the  grand 
jury  is  in  session.  Hobbs  v.  State,  133  Ind. 
404,  32  N.  E.  1019,  18:  774 
Waiver  or  admission  by  plea  or  failure  to 

plead. 
For  Editorial  Notes,  see  infra,  VI.  §  17. 

131.  The  benefit  of  a  pardon  as  a  bar  to  a 
prosecution  is  not  waived  by  a  plea  of  not 
guilty,  or  by  other  steps  taken  in  the  pro- 
ceedings, but  the  pardon  may  be  set  up  at 
any  time  or  stage  of  the  proceedings  be- 
fore the  execution  of  the  sentence.  Terri- 
tory V.  Richardson,  9  Okla.  579,  60  Pac.  244, 

49:  440 

132.  The  right  to  object  to  the  panel  of 
the  grand  jury  because  the  required  number 
of  jurors  were  not  drawn  for  it  is  waived 
by  filing  a  plea  of  guilty  to  the  indictment. 
State  V.  Belvel,  89  Iowa,  405,  56  N.  W.  545, 

27 :  846 

133.  The  privilege  of  a  person  surren- 
dered in  interstate  extradition  proceedings, 
as  to  trial  for  a  different  offense,  is  not 
waived  by  failure  to  plead  it  in  abatement 
of  the  indictment  for  such  different  crime, 
nor  by  entering  a  plea  of  not  guilty  there- 
to when  before  the  trial  he  asserts  his  priv- 
ilege, and  objects  to  the  trial  on  that 
ground.  Ex  parte  McKnight,  48  Ohio  St. 
588,  28  N.  E.   1034,  14:  128 

134.  A  plea  of  guilty  on  a  charge  of  vio- 
lating a  city  ordinance  is  only  an  admission 
that  defendant  committed  the  acts  charged, 
and  it  is  immaterial  where  the  ordinance  is 
invalid.  Grossman  v.  Oakland,  30  Or.  478, 
41  Pac.  5,  36:  593 
Motions  generally. 

135.  A  motion  asking  the  court  to  direct 
an  acquittal  in  a  criminal  case  on  account 
of  the  failure  of  proof  on  the  part  of  the 
state,  unless  such  failure  is  a  total  one, 
must  specify  wherein  it  is  claimed  such 
proof  fails.  "State  v.  Tamler,  19  Or.  528,  25 
Pac.  71,  9:  853 

136.  A  motion  to  dismiss  an  indictment 
cannot  be  based  on  facts  not  appearing  on 
the  record.  Com.  v.  Havden,  163  Mass.  4,53, 
40  N.  E.  846,  28:  318 

137.  A  motion  to  set  aside  an  informa- 
tion cannot  be  made  after  a  plea  of  not 
guilty  and  one  trial  upon  that  plea;  nor  can 
the  point  be  raised  by  motion  in  arrest,  as 
under  the  North  Dakota  statutes  a  motion 
in  arrest  only  reaches  defects  that  are  avail- 


ms 


CRIMINAL  LAW.  II.  g,  1. 


able  on  demurrer.     State  v.  Pancoast,  5  N. 

D.  516,  67  N.  W.  1052,  35:  518 

Motions  in  arrest  of  judgment. 

First  Making,  on  Appeal,  see  Appeal  and  Er- 
ror, 637. 

Authority  of  De  Facto  Judge  to  Arrest 
Judgment,   see  Judges,   12. 

See  also  supra,  137;    infra,  282. 

138.  Duplicity  in  an  information,  which 
amounts  only  to  surplusage,  is  not  ground 
for  motion  in  arrest.  State  v.  Armstrong. 
106  Mo.  395,  16  S.  W.  604,  13:  4K» 

139.  An  arrest  of  judgment  can  be  only 
for  a  defect  appearing  upon  the  face  of  the 
record.  On  motion  therefor,  knowledge  de- 
rived from  the  evidence  cannot  be  consid 
ered.  State  v.  Eaves,  106  K  C.  752,  11  S.  E 
370,  8:  259 

g.  Former  Jeopardy. 
1.  In    General. 

Provision  for  Appeal  as,  see  Appeal  and  Er- 
ror, I.  c. 

Collusive  Arrest  in  Other  Court,  see  Courts, 
385. 

See  also  Courts,  47;   Judgment,  ,226. 

For  Editorial  Notes,  see  infra,  VI.  §   19. 

140.  Jeopardy  is  the  peril  in  which  a  de- 
fendant is  put  when  he  is  regularly  chargea 
with  a  crime  before  a  tribunal  properly  or- 
ganized and  competent  to  try  him.  Com.  v. 
Fitzpatrick,  121  Pa.  109,  15  Atl.  466, 

1:451 
141-2.  The  validity  of  a  plea  of  former 
jeopardy  for  an  offense  committed  before  an 
amendment  of  the  Constitution,  interposed 
on  a  trial  after  such  amendment,  will  be 
governed  by  the  provisions  of  the  amended 
Constitution,  where  it  is  in  favor  of  the 
accused,  and  such  amended  Constitution  de- 
clares that  the  provisions  of  all  laws  in- 
consistent with  such  Constitution  shall 
cease  upon  its  adoption.  State  v.  Rich- 
ardson, 47  S.  C.  166,  25  S.  E.  220,     35:  238 

143.  Where,  by  reason  of  the  fact  that  a 
crime  is  partly  consummated  in  each  ol 
several  counties,  the  courts  of  each  have 
jurisdiction  of  the  offense,  the  state  cannot 
begin  a  prosecution  in  one  of  them,  and 
then,  at  its  pleasure,  dismiss  that  and  com- 
mence another  in  another  county,  and  so 
harass  the  accused  in  every  county  in  whii.-li 
jurisdiction  can  be  obtained.  Coleman  v. 
State,  83  Miss.  290,  35  So.  937,  64:  807 

144.  A  hearing  upon  a  plea  of  former 
jeopardy  alone  is  not  itself  a  jeopardy,  and 
a  discharge  upon  such  a  hearing  is  not  an 
acquittal,  since  such  plea  does  not  involve 
the  merits  of  the  case.  State  v.  Hagcr,  61 
Kan.  504,  59  Pac.  1080,  48:  254 
What  constitutes  an  acquittal. 

See  also  supra,   144. 

145.  The  refusal  of  a  court  to  proceed  to 
trial  of  the  prosecution  on  appeal  from  a 
conviction  is  not  an  acquittal.  Grand  Rap- 
ids V.  Braudv,  105  Mich.  670.  64  N.  W.  29, 

:V2:  116 

146.  A  verdict  of  manslaughter  in  tho  lirst 
degree,  which  the  court  refuses  to  receive 
because  there  are  no  degrees  of  manslaugh- 


ter, does  not  amount  to  an  acquittal  of  the- 
higher  offense  of  murder,  so  as  to  prevent 
the  jury,  after  retiring  again,  from  render- 
ing a  verdict  of  murder  in  the  first  degree. 
Grant  v.  State,  33  Fla.  291,  14  So.  757, 

23:  723 
Acquittal  procured  by  bribery  as  bar. 

147.  That  an  acquittal  was  procured  by 
bribery  of  the  prosecuting  attorney  will  not 
destroy  the  effect  of  a  plea  of  former  jeop- 
ardy, where  the  state  was  a  party  to  the- 
former  prosecution,  and  was  represented 
throughout  by  its  proper  officer,  while  the 
proceedings  up  to  and  including  the  submis- 
sion were  regular.  Shideler  v.  State,  129 
Ind.  523,  28  N.  E.  537,  29  N.  E.  36,  16:  225 
Trial  without  arraignment  or  plea. 

148.  A  trial  without  arraignment  of  the 
accused,  or  a  waiver  of  it  by  aim,  and 
without  a  plea  of  not  guilty,  or  the  entry 
of  it  for  him,  does  not  put  the  accused  ia 
jeopardy  so  as  to  entitle  him  to  plead  a 
former  acquittal  or  conviction  to  a  subse- 
quent trial  for  the  same  offense.  State  v. 
Rook,  61  Kan.  382,  59  Pac.  653,  49:  186 
Release  for  delay  in  trial. 

149.  The  release  of  a  prisoner  under  ha- 
beas corpus  proceedings  for  failure  to  bring 
him  to  trial  within  sixty  days  as  required 
by  statute  is  not  a  bar  to  a  subsequent  pro- 
ceeding against  him  for  the  same  offense. 
Re  Begerow,  136  Cal.  293,  68  Pac.  773, 

56:  528^ 
Withdrawal  of  case  from  jury. 

150.  One  who  has  been  put  upon  his  trial 
under  a  valid  indictment  before  a  court  of 
competent  jurisdiction,  and  after  a  jury  is 
charged  with  a  trial  of  the  case,  cannot, 
after  a  withdrawal  of  the  case  from  the 
jury  at  the  request  of  the  prosecuting  at- 
torney and  without  his  consent,  after  one 
witness  has  been  examined  for  the  state,  be- 
again  put  upon  his  trial  for  the  same  of- 
fense, either  at  common  law  or  under  S.  C. 
Const,  art.  1,  §  17,  providing  that  no  person 
shall  be  subject  for  the  same  offense  to  be 
twice  put  in  "jeopardy"  of  life  or  liberty. 
State  V.  Richardson,  47  S.  C.  166,  25  S.  E. 
220,  35:  238 
Withdrawal  of  juror. 

151.  A  plea  of  former  jeopardy  should 
be  sustained  where,  after  the  evidence  for 
the  state  had  been  introduced  at  the  former 
trial,  the  judge,  when  absent  from  the 
court  room,  and  in  the  absence  of  the  pris- 
oner, released  a  juror  upon  representations^ 
as  to  the  dangerous  sickness  of  his  wife, 
which  resulted  in  the  discharge  of  the  jury 
without  a  verdict.  Upchureh  v.  State,  36 
Tex.  Crim.  Rep.  624.  38  S.  W.  206,     44:  694 

152.  Under  a  statute  permitting  discharge 
of  the  jury  in  a  felony  case  upon  one  of 
them  becoming  sick,  or  in  case  of  accident 
or  circumstance  occurring  to  prevent  their 
being  kept  together,  the  necessary  facts 
must  be  judicially  determined;  and  if  the 
judge,  when  absent  from  the  court  room, 
and  in  the  absence  of  the  prisoner,  acts 
upon  representations  made  to  him,  and  ex- 
cuses a  juror,  the  prisoner  will  be  entitled 
to  release.  Id. 


CRIMINAL  LAW,  II.  g,  2 


909 


-Discharge  of  jury. 

For  li^ditorial  Notes,  see  infra,  VI.  §  19. 

153.  The  discharge  of  the  jury  after  a 
criminal  trial  has  progressed  several  days, 
against  the  objection  of  defendant,  upon  in- 
formation by  telephone  to  some  oflicer  in 
attendance  on  the  court  that  one  of  the 
jurors  was  sick  and  unable  to  proceed  with 
the  trial,  without  further  proof  of  the  fact, 
is  a  bar  to  a  second  trial,  under  R.  I.  Const, 
art.  1,  §-  7,  providing  that  no  person  shall, 
"after  acquittal,"  be  tried  for  the  same  of- 
fense. State  V.  Nelson,  19  R.  L  467,  34  Atl. 
990,  33 :  559 

154.  One  accused  of  a  capital  offense  has 
not  been  in  jeopardy  which  will  bar  a  sub- 
sequent trial,  where,  after  the  jury  has  been 
impaneled  and  the  trial  begun'  the  judge 
discharges  them  after  ascertaining  by  inde- 
pendent investigation  that  some  of  them  are 
so  prejudiced  in  favor  of  the  accused  as  to 
be  incompetent,  and  have  endeavored  to 
prejudice  other  jurors,  belittled  the  state's 
evidence,  procured  the  intoxication  of  the 
bailiff,  and  obtained  communication  with 
persons  not  jurors.  Re  Ascher,  130  Mich. 
540,  90  N.  W.   418,  57:  806 

155.  A  discharge  of  a  jury  after  they 
have  been  out  for  some  time  and  their  fore- 
man has  stated  in  tne  presence  of  all,  with- 
out dissent  by  any,  that  there  is  no  prob- 
ability of  their  agreeing  upon  a  verdict, 
will  not  sustain  a  plea  of  former  jeopardy. 
State  V.  Hager,  61  Kan.  504,  59  Pac.  1080, 

48:254 

156.  The  discharge  of  a  jury  -in  a  crim- 
inal case  without  the  consent  of  the  ac- 
cused, because  the  jurors  are  unable  to 
agree,  will  not  sustain  the  defense  of  for- 
mer jeopardv,  on  a  subsequent  trial.  Drej'er 
V.  People,  188  111.  40,  58  N.  E.  620,      58:  869 

157.  Discharge  of  a  jury  after  one  day's 
deliberation,  because  the  court  was  satisfied 
that  agreement  was  impossible,  is  not  a  bar 
to  another  trial,  under  the  Colorado  Consti- 
tution, which  provides  that  "if  the  jury  dis- 
agree .  .  .  the  accused  shall  not  be 
deemed  to  have  been  in  jeopardy."  Re  Alli- 
son, 13  Colo.  525,  22  Pac.  820,  10:  790 

158.  Since  in  a  capital  case  the  court  can- 
not discharge  the  jury  without  the  consent 
of  the  defendant,  unless  an  absolute  neces- 
sity requires  it,  the  discharge  of  the  jury 
in  such  case  on  the  last  day  of  the  term, 
which  the  court  had  power  to  extend,  after 
they  have  for  five  days  failed  to  agree  upon 
a  verdict,  made  against  the  objection  of  the 
defendant,  harp  another  trial  for  the  same 
offense.  Com.  v.  Fitzpatrick,  121  Pa.  109. 
15  Atl.  466,  1:  451 
Reversal  of  first  conviction. 

159.  The  plea  of  former  jeopardy  cannot 
prevail  where  a  judgment  of  conviction  is 
set  aside  on  the  application  of  the  convict 
because  he  has  been  denied  a  public  trial. 
People  V.  Murray,  89  Mich.  276,  50  N.  W. 
995,  14:  809 

160.  Procuring  reversal  of  a  judgment  of 
conviction  on  account  of  error  by  the  trial 
court  waives  the  right  to  object  to  further 
prosecution  on  the  ground  of  former  jeop- 


ardy.   McGinn  v.  State,  46  Neb.  427,  65  N. 
W.  46,  30:  450 

161.  A  sentence  of  conviction  imposed 
under  authority  of  Mass.  Pub.  Stat.  chap. 
187,  §  13,  after  the  reversal  of  a  former 
judgment,  on  the  application  of  the  convict, 
because  it  was  imposed  under  a  statute 
that  was  passed  after  the  offense  was  com- 
mitted, and  was  therefore  unconstitutional 
so  far  as  it  related  to  that  offense,  does  not 
violate  the  constitutional  provision  against 
double  jeopardy,  or  abridge  the  privileges 
and  immunities  of  the  accused  as  a  citizen, 
or  deprive  him  of  his  liberty  without  due 
process  of  law,  although  he  had  partly 
served  the  invalid  sentence  before  it  was  re- 
versed, including  one  day's  solitary  confine- 
ment, to  which  each  of  the  sentences  con- 
demned him.  Com.  v.  Murphy,  174  Mass. 
369,  54  N.  E.  860,  48:  393 

162.  The  granting  of  a  new  trial  after 
conviction  of  a  lower  offense  than  is  charged 
in  the  indictment  will  not  authorize  a  con- 
viction of  the  offense  originally  charged, 
under  a  statute  providing  that  no  person 
can  be  subjected  to  a  second  prosecution 
for  a  public  offense  for  which  he  has  once 
been  prosecuted  and  acquitted.  People  v. 
McFarlane,  138  Cal.  481,  71  Pac.  568,  72  Pac. 
48,  61:245 

163.  A  conviction  of  manslaughter  may  be 
sustained,  although  the  evidence  establishes 
murder  on  a  second  trial  of  an  indictment 
for  murder  upon  which  there  was  a  con- 
viction of  manslaughter  at  the  former  trial, 
which  was  set  aside  and  a  new  trial  grantedj 
where  the  evidence  does  not  prove  a  case 
where  the  verdict  must  be  for  murder  or 
acquittal  as  justifiable  homicide.  Id. 

2.  Different    Offenses;    Different    Modes    of 
"  Describing  Same  Act. 

Acquittal  as  Bar  to  Civil  Action,  see  Judg- 
ment, 172. 

164.  Acquittal  of  the  larceny  of  a  piano 
will  bar  a  subsequent  trial  upon  an  indict- 
ment charging  the  same  offense,  committed 
under  the  same  circumstances  as  to  time, 
place,  owner,  etc.,  excepting  that  the  subject 
of  the  theft  is  stated  to  be  an  auto-electric 
piano,  or  autolectra,  instead  of  a  piano,  as 
stated  in  the  first  indictment.  Nordlinger 
V.  United  States,  24  App.  D.  C.  408,    70:  227 

165.  A  conviction  of  a  battery  bars  a  sub- 
sequent prosecution  for  the  same  acts  as 
an  assault  with  a  deadly  weapon  with  in- 
tent to  murder,  where  the  statute  permits 
a  conviction  of  any  lower  offense  necessarily 
included  in  a  higher  one  with  which  a  de- 
fendant is  charged.  People  v.  McDaniels, 
137  Cal.  192,  69  Pac.  1006,  59:  578 

166.  The  uttering  as  true  of  a  forged 
mortgage  and  a  forged  note,  which  the  mort- 
gage purports  to  secure,  at  one  time  and  to 
the  same  party,  is  a  single  act,  and  consti- 
tutes only  one  offense,  and  a  conviction  on 
an  indictment  for  uttering  the  mortgage  is 
a  bar  to  a  subsequent  conviction  for  utter- 
ing the  note.  State  v.  Moore,  86  Minn.  422. 
90  N.  W.  787,  61 :  819 

167.  An  acquittal  of  the  crime  of  libel  in 


910 


CRIMINAL  LAW,  IL  h,  III 


the  use  of  certain  words  contained  in  a  pub- 
lished article  will  bar  a  subsequent  prosecu- 
tion for  libel  in  using  other  words  contained 
in  the  same  article  published  at  the  same 
time  and  in  the  same  newspaper.  People 
V.  Stephens,  79  Cal.  428,  21  Pac.  856,    4:  845 

168.  Robbing  different  individual  passen- 
gers on  a  stage  at  the  same  time  and  in 
rapid  succession  constitutes  a  distinct  of- 
fense for  each  individual;  and  a  conviction 
for  robbing  one  is  no  bar  to  a  prosecution 
for  robbing  others.  Re  Allison,  13  Colo.  525, 
26   Pac.   820,  10:  790 

169.  A  conviction  for  selling  liquor  on 
Sunday  is  not  a  bar  to  an  indictment  for 
selling  liquor  without  a  license.  Arrington 
V.  Com.  87  Va.  96,  12  S.  E:  224,       10:  242 

170.  A  conviction  for  furnishing  intoxi- 
cating liquor  to  a  minor  without  legal  au- 
thority is  not  a  bar  to  a  prosecution  for 
selling  the  liquor  without  a  license,  where 
the  sale  to  the  minor  is  an  offense  irrespec- 
tive of  the  license,  and  the  sale  without  li- 
cense is  an  offense  whether  sold  to  a  minor 
or  other  person.  Com.  v.  Vaughn,  101  Ky. 
603,  42  S.  W.  117,  45:  858 

171.  A  person  is  not  twice  put  in  jeopardy 
because  he  is  subjected  to  an  action  for  a 
penalty  as  well  as  to  a  criminal  prosecution 
for  the  same  offense.  State  ex  rel.  Beedle 
V.  Schoonover,  135  Ind.  526,  35  N.  E.  119, 

21 :  767 

172.  A  suit  for  an  injunction  against  the 
violation  of  a  statute,  and  punishment  for 
contempt  of  such  an  injunction,  in  addition 
to  a  criminal  prosecution  for  the  illegal  act, 
do  not  violate  the  constitutional  provision 
against  putting  a  person  twice  in  jeopardy 
for  the  same  offense.  State  ex  rel.  Duen- 
sing  V.  Roby,  142  Ind.  168.  41  "N".  E.  145, 

.33 :  213 
Acquittal   as   bar   to   prosecution   for   pet- 
jury. 

173.  Acquittal  on  a  charge  of  a  criminal 
offense  is  a  bar  to  a  prosecution  of  the  ac- 
cused for  perjury  in  swearing  that  he  did 
not  commit  the  offense.  Cooper  v.  Com.  106 
Ky.  909,  51  S.  W.  789,  59  S.  W.  524. 

45:  216 

h.  Determining    Sanity    of    Accused;     Pro- 
ceeding with  Trial. 

Setting    aside    Conviction,    see    Appeal    and 

Error,   737. 
Conclusiveness  of  Findinjr  as  to  Sanity,  see 

Appeal  and  Error,  708. 
Due  Process  as  to,  see  Constitutional  Law, 

821. 
Presumption    and    Burden    of   Proof    as    to 

Sanitv.  see  Evidence  II.  e,  5. 
Opinion  Evidence  as  to  Sanitv,  see  Evidence, 

VTL  e. 
SuflRciencv   of   Proof   of   Insanitv,   see   Evi- 
,       (lence.  2.?67-2371. 
For  Editorial  Notes,  see  infra,  VI.   §  23. 

174.  Reasonable  ground  to  doubt  the  san- 
ity of  a  person  about  to  be  tried  for  felonv 
must  appear  before  the  court  will  impanel 
a  jury  to  inquire  as  to  his  sanity;  and 
the  court  may  inspect  and  examine  him. 
consider  his  action  and  demeanor,  read  af- 


fidavits, and  inquire  of  physicians  and  oth- 
ers touching  his  condition.  State  v.  Harri- 
son, 36  W.  Va.  729,  15  S.  E.  982,       18:  224 

175.  The  trial  of  the  question  of  the  san- 
ity or  insanity  of  a  person  who  has  been 
sentenced  to  death,  on  a  claim  that  he  has 
become  insane  since  the  sentence,  is  not  a 
matter  of  absolute  right,  if  the  court  is  sat- 
isfied of  his  sanity,  but  the  investigation 
of  the  matter  is  in  the  discretion  of  the 
court.  State  v.  Nordstrom,  21  Wash.  403, 
58   Pac.   248,  *     53:  584 

176.  A  person  who  has  no  delusions,  but 
is  more  than  ordinarily  intelligent,  with 
memory  unimpaired,  and  who  appreciates 
exactly  the  nature  of  a  criminal  charge 
against  him  and  his  relations  to  the  pro- 
ceeding, and  who,  so  far  as  mental  opera- 
tions are  concerned,  is  as  sane  as  men  are 
ordinarily,  though,  on  account  of  a  serious 
illness  resulting  from  indulgence  in  the  ex- 
cessive use  of  intoxicating  drink,  his  brain 
is  affected  so  as  to  change  his  character, 
whereby  he  has  lost  ambition,  become  aim- 
less and  trifling,  and  has  deteriorated  in 
moral  character,  while  his  appetite  for  in- 
toxicants has  become  uncontrollable  at  fre- 
quent intervals,  so  that,  if  at  liberty,  he 
will  inevitably  take  to  drinking,  and  when 
under  the  influence  of  intoxicants  will  be 
dangerous,  is  not  insane  within  the  mean- 
ing of  statutes  providing  for  the  restraint 
of  lunatics,  but,  if  he  has  been  committed  to 
an  insane  hospital  after  commencement  of 
a  prosecution,  is  entitled  to  be  returned  to 
the  custody  of  the  sheriff  in  order  that  the 
trial  mavbe  proceeded  with.  Re  Buchan- 
an, 129  Cal.  330,  61  Pac.  1120,  .50:  378 


III.  Offenses    against    Different    Sovereign- 
ties. 

Concurrent  Proceedings  in  Different  Courts, 

see  supra,  II.  e. 
For  Editorial .  Notes,  see  infra,  VI.   §   18. 

Federal  and  state. 

177.  The  same  act  may  be  an  offense 
against  both  state  and  Federal  governments, 
punishable  in  each  jurisdiction  imder  its 
laws.  People  v.  Welch,  141  N.  Y.  266.  36 
N.  E.  328,  24:  117 

178.  Manslaughter  committed  within  the 
territorial  limits  of  a  state  by  the  mis- 
conduct or  negligence  of  a  pilot  licensed 
under  Federal  laws,  in  charge  of  a  vessel 
which  comes  into  collision  with  another, 
causing  the  death  of  a  person,  is  punishable 
nnder  state  laws,  although  bv  U.  S.  Rev. 
Stat.  §  5344,  U.  S.  Comp.  Stat.'  1901,  p.  3629, 
it  is  made  an  offense  against  the  United 
States.  Id. 
*^tate  and  municipal. 

Delegation  of  Power  by  Legislature  to  Mu- 
nicipality as  to,  see  Constitutional 
Law.   205. 

Turisdiction  of  Mayor,  see  Courts.  311. 

See  also  supra.  125;  Disorderly  Houses.  9; 
Municipal   Corporations,  110. 

179.  ]S;o  power  to  punish  acts  made  crim-' 
inal   by   the   state   law,   and    fully   covered 


CRIMINAL  LAW,  IV.  a. 


911 


thereby,  is  conferred  by  W.  Va.  Code,  chap. 
47,  §  28,  vesting  in  the  councils  of  municipal 
corporations  the  power  and  duty  "to  pro- 
tect the  persons  and  property  of  the  citi- 
zens of  such  city,  town,  or  village,  and  to 
preserve  peace  and  good  order  therein,"  ex- 
cept such  as  would  he  attended  with  cir- 
cumstances of  aggravation  not  included  in 
the  state  law.  Such  power  must  be  spe- 
cifically and  expressly  given  by  the  legisla- 
ture before  it  can  be  exercised  by  such  cor- 
poration. Judy  v.  Lashley,  50  W.  Va.  628, 
41  S.  E.  197,  57:  413 

180.  A  city  ordinance  providing  punish- 
ment for  the  maintenance  of  a  nuisance  is 
not  invalid  or  unconstitutional  because  the 
general  statutes  of  the  state  provide  for 
the  punishment  of  like  offenses.  ,  People  v. 
Detroit  White  Lead  Works,  82  Mich.  471, 
46  N.  W.  735,  9:  722 

181.  A  municipal  ordinance  making  it  an 
offense  to  permit  gaming  in  the  place  or 
house  of  any  person  is  not  invalid  because 
the  state  has  enacted  a  statute  which  pro- 
hibits such  acts  in  public  places.  Greenville 
V.  Kemmis,  58  S.  C.  427,  36  S.  E.  727, 

50:  725 

182.  It  cannot  be  made  by  ordinance  an 
offense  against  a  city  to  do  what  a  statute 
makes  an  offense  against  the  state,  triable 
only  in  a  court  of  record  (e.  g.,  the  keeping 
or  exhibiting  of  a  gaming  table  or  bank), 
where  the  Constitution  of  the  state  provides 
that  all  prosecutions  shall  be  conducted  in 
the  name  and  by  the  authority  of  the  state 
and  shall  conclude  against  the  peace  and 
dignity  of  the  state.  Ex  parte  Fagg,  38 
Tex.  Crim.  Rep.   573,  44  S.  W.   294, 

40:  212 

183.  A  municipality  may  provide  for  the 
summary  punishment  of  a  violation  of  its 
ordinances  for  the  suppression  of  disor- 
derly houses,  although  the  keeping  of  such 
houses  is  a  misdemeanor  indictable  at  com- 
mon law  a"d  triable  by  jurv.  Garden  v.  Mad- 
ison. Ill  Wis.  413,  87  N.  W.  568,       55:  .506 

184.  The  carrying  of  deadly  weapons,  be- 
ing an  offense  fully  provided  for  and  pun- 
ished by  law,  and  being  an  act  not  in  itself 
amounting  to  a  breach  of  the  peace,  cannot 
be  made  an  offense  and  punished  by  a  mu- 
nicipal ordinance,  unless  expressly  author- 
ized by  the  municipal  charter.  Judy  v. 
Lashley,  50  W.  Va.  628,  41  S.  E.  197, 

57:413 


rV.  Sentence  and  Imprisonment, 
a.  In    General. 

Due  Process  in  Committing  One  Acquitted 
because  of  Insanity,  see  Constitutional 
Law,  876. 

Effect  of  Conviction  on  Competency  as 
Juror,  see  Jury,  82. 

Assessment  of  Punishment  by  Jurv,  see 
Jury.  37,  38,  66,  67;   Trial,  920.  " 

Prohibition  against  Imposition  of  Fine,  see 
Prohibition.  30. 

Partial  Invalidity  of  Statute  as  to  Im- 
prisonment, see  Statutes,  102. 


Strict  Construction  of  Statute  as  to  Impris- 
onment, see  Statutes,  513. 

Effect  of  Amending  Statute  for  Punishment 
of  Particular  Crime,  see  Statutes,  615. 

Instruction  as   to,   see  Trial,  848. 

Sufficiency  of  Verdict,  see  Trial,  918. 

See  also  supra,  3,  4. 

For  Editorial  Notes,  see  infra,  VI.  §§  2,  28. 

185.  Punishment  of  two  or  more  persons 
for  the  same  crime  is  to  be  inflicted  as  if 
each  one  had  committed  the  crime  separate- 
Iv.  Thompson  v.  State.  105  Tenn.  177,  58  S. 
W.  21.3,  51:883 

186.  A  plea  of  guilty  to  an  information 
charging  larceny,  under  a  general  statute,  in 
one  count,  and  horse  stealing  in  another,  ap- 
plies to  both  counts,  and  authorizes  sen- 
tence for  horse  stealing.  People  v.  Morris. 
80  Mich.  634,  45  K  W.  591,  8:  685 

187.  The  consolidation,  upon  the  motion 
of  the  defendants,  of  several  indictments 
for  different  offenses,  for  the  purpose  of 
trial  only,  does  not  make  it  improper  for 
me  court  to  pass  a  separate  sentence  for 
each  conviction.  Parker  v.  People,  13  Colo. 
155,  21  Pac.  1120,  4:  803 
By  default. 

188.  A  judgment  by  default  against  a  cor- 
poration indicted  for  misdemeanor  may  be 
rendered  on  its  failure  to  appear,  by  virtue 
of  the  common  law  in  Pennsylvania,  which 
has  established  this  practice  in  civil  cases, 
notwithstanding  the  lack  of  any  precedents 
in  criminal  cases,  since  personal  appearancf 
of  the  defendant  is  no  more  necessary  in 
ease  of  misdemeanor  than  in  a  civil  action. 
Com.  V.  Lehigh  Vallev  R.  Co.  165  Pa.  162,  30 
Atl.  836,  '  27:  231 
Delay  in  executing  mittimus. 

189.  Failure  to  execute  a  mittimus  under 
a  judgment  sentencing  a  person  to  impris- 
onment for  a  certain  number  of  days  in  case 
of  failure  to  pay  a  fine,  until  after  the  pro 
scribed  number  of  days  has  elapsed,  wiU 
not  entitle  the  defendant  to  relief  from 
the  sentence,  in  the  absence  of  any  effort 
on  his  part  to  have  it  promptly  executed. 
Miller  v.  Evans,  115  Iowa,  101,  88  N.  W. 
198,  56:  101 
Changing  mode  of  inflicting  death  penalty. 
Shortening   Time   Before   Execution   as   Ex 

Post    Facto    Law,     see    Constitutional 
Law,  112. 

190.  The  legislature  has  power  to  change 
the  manner  of  inflicting  the  penalty  of 
death.  People  ex  rel.  Kemmler  v.  Durston. 
119  N.  Y.  569.  24  N.  E.  6.  7:  715 
Correction  of. judgment. 

191.  The  power  of  the  court  to  correct  a 
judgment  sentencing  a  person  to  death  and 
to  solitary  confinement  until  execution  is 
not  lost  by  the  fact  of  imprisonment  after 
sentence,  on  the  ground  that  this  is  the  suf- 
fering of  a  part  of  the  sentence.  McGinn 
V.  State,  46  Neb.  427,  65  N.  W.  46,  30:  450 
Labor  of  convicts. 

As  to  Hiring  o\it  of  Convicts  Generally,  see 
Convicts,  1,  2. 

Involuntary  Servitude  by  Hiring  Out  Va- 
grant, see  Involuntary  Servitude. 

See  also  infra,  209. 


912 


CRIMINAL  LAW.  IV.  b. 


For  Editorial  Notes,  see  infra,  VI.  §§  28, 
29.  33. 

192.  Convicts  cannot  be  worked  in  private 
chain  gangs  controlled  by  private  individ- 
uals, and  a  convict  confined  on  such  a  chain 
gang  should  be  released  from  the  custody 
of  the  individuals  controlling  it,  and  re- 
manded to  the  custody  of  the  authorities 
lawfully  entitled  thereto.  Simmons  v. 
Georgia  Iron  &  Coal  Co.  117  Ga.  305,  43 
S.  E.  780,  61:  739 

193.  Constitutional  provisions  against 
slavery  and  involuntary  servitude  are  not 
violated  by  an  ordinance  permitting  prison- 
ers committed  to  a  city  prison  for  violation 
of  a  by-law  or  ordinance,  in  default  of  pay- 
ment of  a  fine,  to  be  employed  by  the  city 
marshal  at  labor  either  on  the  streets  or 
public  works,  or  in  a  public  or  private 
place,  being  credited  $1  a  day  on  a  judg- 
ment for  fine  for  each  day's  work  performed. 
Lopeka  v.  Boutwell,  53  Kan.  20,  35  Pac.  819, 

27:  593 
Sureties  for  good  behavior. 

194.  In  case  of  a  conviction  of  selling  in- 
Toxicating  liquors  without  a  license  in  viola- 
lion  of  W.  Va.  Code,  chap.  32,  §§  1,  3,  for- 
bidding such  sale  and  providing  that  the 
punishment  for  such  an  offense  shall  be  a 
fine  and,  at  the  discretion  of  the  court,  im- 
prisonment in  the  county  jail,  the  court  has 
no  power,  in  addition  to  imposing  a  fine  and 
costs,  to  require  of  the  defendant  sureties 
for  good  behavior.  State  v.  Gillilan,  51  W. 
Va.  278,  38  S.  '^.  516.  57:  426 

195.  In  case  of  conviction  for  a  statutory 
misdemeanor,  or  a  common-law  misdemean- 

r  for  which  punishment  is  prescribed  by 
-tatute,  courts  of  record  have  no  jurisdic- 
tion to  require  of  the  defendant  sureties  for 
sood  behavior.  Id. 

196.  Courts  of  record  have  a  discretion- 
ary jurisdiction,  in  case  of  conviction  for  a 
crross  common-law  misdemeanor,  punish- 
ment for  which  has  not  been  prescribed  by 
statute,  to  require  of  the  defendant  sureties 
for  good  behavior.  Id. 

b.  Cruel  and  Unusual  Punishment. 

As  a  Contempt  of  Court,  see  Contempt.  6. 

Authorizinsr  Sentence  on  Charge  of  Being 
a  Suspicious  Person,  see  Disorderly  Per- 
sons, 1. 

For  Editorial  Notes,  see  infra,  VI.  §  29. 

197.  The  legislature  is  ordinarily  the 
judge  of  the  expediency  of  creatine;  new 
crimes,  and  of  prescribinsr  penalties,  whether 
light  or  severe,  for  prohibited  acts.  Com. 
v.  Murphy,  165  Mass.  66.  42  X.  E.  504. 

30:  734 

198.  The  punishment  of  imprisonment  for 
life  under  Mass.  Stat.  1893.  chap.  466.  for 
criminal  intimacy  with  a  female  child  under 
the  aee  of  sixteen  years,  is  not  in  violation 
of  the  constitutional  provision  against  cruel 
or  unusual  punishments.  Id. 

190.  \  minimum  mmishment  of  three 
years  for  horse  stealin?.  except  in  cases  of 
the  first  offense,  when  it  may  be  only  two 
years,    with    a    maximum    of   fifteen    years. 


is  not  cruel  or  unusual  punishment,  al- 
though the  punishment  must  be  greater  for 
this  crime  than  it  may  be  for  homicide. 
People  V.  Morris,  80  Mich.  634,  45  N.  W.  591, 

8:685 
Indeterminate  sentence. 

200.  Cruel  and  unusual  punishment  is  not 
made  by  an  indeterminate  sentence,  not 
more  than  the  maximum  nor  less  than  the 
minimum  prescribed  by  statute  for  the 
specified  crime.  jMiller  v.  State,  149  Ind. 
607,  49  N.  E.  894,  40:  109 
Excessive  fine. 

See  also  infra,  202-205. 

201.  Imposing  a  fine  of  from  $100  to  $250, 
and  imprisonment  from  ten  to  thirty  days, 
for  violating  a  statute  regulating  tempo- 
rary or  transient  dealers,  does  not  consti- 
tute an  excessive  fine  or  cruel  punishment 
in  violation  of  R.  I.  Const,  art.  1,  §  8.  State 
V.  Foster,  22  R.  I.  163,  46  Atl.  833,  50:  339 
Fine  and  imprisonment. 

•202.  A  fine  of  not  less  than  $200  nor  more 
than  $1,000,  and  imprisonment  for  not  less 
than  ninety  days  nor  more  than  one  year, 
for  violation  of  a  restraining  order  under 
the  South  Carolina  dispensary  act  of  1894. 
§  22,  are  not  within  the  constitutional  pro- 
vision against  excessive  fines  or  cruel  and 
unusual  punishments.  Ex  parte  Keeler,  45 
S.  C.  537,  23  S.  E.  865,  31 :  678 

203.  Imprisonment  for  2,160  days  in  de- 
fault of  payment  of  fines  aggregating  $720 
and  costs  of  prosecution  for  seventy-two 
distinct  violations  of  one  ordinance  against 
trespass  on  public  parks,  all  made  within 
one  hour  and  forty  minutes,  constitutes  an 
unusual  and  unreasonable  punishment. 
State  ex  rel.  Garvey  v.  Whitaker,  48  La. 
Ann.  .527,  19  So.  457.  35:  561 

204.  The  constitutional  provision  against 
pruel  and  unusual  punishments  is  not  violat- 
ed by  a  statute  authorizing  imprisonment 
from  two  to  ten  years  and  a  fine  not  exceed- 
ing $2,000  for  conspiracy  to  do  an  unlawful 
act  in  the  night  time,  or  to  do  such  act 
while  wearing  white  caps,  masks,  or  other 
disguises.  Hobbs  v.  State,  133  Ind.  404,  32 
N.  E.  1019,  18:  774 

205.  Punishment  by  fine  of  not  less  than 
i?25  nor  more  than  $200,  or  by  imprisonment 
in  the  city  jail  for  not  less  than  ten  days 
nor  more  than  sixty  days,  for  violation  of 
an  ordinance  prohibiting  keepers  of  saloons, 
barrooms,  etc.,  from  permitting  females  to 
enter  their  places  of  business  for  immoral 
purposes,  is  not  unreasonable  or  oppressive. 
State  V.  Nelson,  10  Idaho,  522,  79  Pac.  79, 

67:808 
Chaining  by  neck. 

206.  To  chain  a  prisoner  by  the  neck  with 
a  trace-chain  and  padlock  so  that  he  can 
neither  lie  down  nor  sit  down,  and  leave 
him  so  chained  in  darkness  for  several  hours 
of  the  night,  is  cruel  and  unusual  punish- 
ment which  it  is  the  dutv  of  the  court  to 
nrevent.  Re  Birdsong.  39  Fed.  599,  4:  628 
Imprisonment  at  hard  labor. 

See  also  supra.  192.   193. 

207.  Imprisonment  at  hard  labor  is  not 
unconstitutional  as  cruel  or  unusual  punish- 
ment for  the  offense  of  a  tramp  in  threaten- 


CRIMINAL  LAW,  IV.  c.  d. 


918 


«ng  to  do  personal  injury  to  another  person. 
State  V.  Hogan,  63  Ohio  St.  202,  58  N.  E. 
572,  52:  863 

Death  penalty  and  mode  of  executing  it. 

208.  The  death  penalty  for  assault  upon 
A  train  with  intent  to  commit  robbery  or 
other  felony,  as  provided  by  N.  M.  Comp. 
Laws  1897,  §  1151,  is  not  a  cruel  and  un- 
usual punishment  within  the  meaning  of  U. 
S.  Const.  8th  Amend.  Territory  v.  Ketch- 
um,  10  N.  M.  718,  65  Pac.  169,  55:  90 

209.  Permitting  the  warden  to  select  the 
day  of  the  week  designated  by  the  court  for 
an  execution  does  not  render  the  statute 
void  as  tending  to  aggravate  the  prisoner's 
distress  by  enhancing  his  suspense.  Storti 
v.  Com.  178  Mass.  549,  60  N.  E.  210,^  52:  520 

210.  The  execution  of  a  criminal  by  elec- 
tricity is  not  cruel  or  unusual  punishment 
within  the  meaning  of  a  constitutional  pro- 
hibition of  such  punishments.  Id. 

211.  Whether  the  use  of  electricity  as  an 
Agency  of  producing  death  constitutes  a 
more  humane  method  of  executing  the  judg- 
ment of  the  court  in  capital  cases  than 
hanging  is  a  question  for  the  determination 
■of  the  legislature.  The  determination  of 
that  question  in  the  affirmative,  after  care- 
ful deliberation,  is  conclusive  upon  the 
<JOiirt8;  and  such  method  cannot,  therefore, 
be  declared  a  violation  of  the  constitutional 
provision  against  cruel  and  unusual  punish- 
ment. People  ex  rel.  Kemmler  v.  Durston, 
119  N.  Y.  569,  24  N.  E.  6,  7:  715 

•c.  Extent  of  Punishment  Generally;   Exces- 
sive Fines. 

Right  to  Complain  of  Favorable  Sentence, 
see  Appeal  and  Error,  477. 

Reduction  of  Punishment  on  Appeal,  see  Ap- 
peal and  Error.  506-508. 

Reviewing  Judge's  Discretion  as  to,  see  Ap- 
peal and  Error,  .')22. 

In  Bastardy  Proceeding,  see  Bastardy,  7. 

■Change  in  Statute  as  Eoc  I'ost  Facto,  see 
Constitutional  Law,  95,  105-112. 

In  Contempt  Proceeding,  see  Contempt,  IV. 

Amount  of  Fine  in  Contempt  Proceeding, 
see  Contempt,  93. 

Evidence  to  Assist  in  Detei-mining  Extent, 
see  Evidence,  1779. 

For  Editorial  Notes,  see  infra,  VI.  §§  29,  30. 

212.  A  statute  diminishing  the  decree  of 
punishment  for  an  offense,  but  making  no 
alteration  in  the  kind  of  punishment,  must 
govern  in  thereafter  imposing  punishment 
for  an  offense  committed  prior  to  its  pas- 
sage. State  V.  Cooler,  30  S.  C.  105,  8  S.  E. 
692,  3':  181 

213.  The  city  of  New  Orleans,  even  prior 
to  act  41,  1890,  possessed  power  to  enforce 
her  ordinances  by  fines  and  by  imprisonment 
in  default  of  payment,  wit'iin  the  limits 
fixed  by  law;  and,  when  the  penalty  de- 
fined in  an  ordinance  is  within  said  limits, 
the  recorders  of  tlie  city  are  bound  to  ob- 
serve the  same,  and  can  neither  extend  nor 
■diminish  them.  State  v.  Boneil,  42  La.  Ann. 
1110,  8  So.  298,  10:  60 

214.  The  power  of  the  court  to  order  con- 
finement of  a  person  sentenced  to  death, 
during  the  time  before  execution,  does  not 

L.R.A.  Dis:.— 58. 


rest  upon  any  positive  provision  of  statute, 
as  such  confinement  is  not  a  part  of  the 
penalty  although  it  is  a  necessary  incident 
thereof.  McGinn  v.  State,  46  Neb.  427,  65 
N.  W.  46,  30:  450 

215.  The  disqualification  from  holding  of- 
fice for  five  years,  prescribed  by  §  35  of 
the  Illinois  civil  service  act  of  1895  as  a 
punishment  for  conviction  under  the  preced- 
ing section,  so  far  as  that  punishment  is 
authorized  without  an  indictment,  is  in 
violation  of  111.  Const,  art.  2,  §  8,  requiring 
indictment  for  criminal  offenses,  except 
where  the  punishment  is  '"by  fine  or  im- 
prisonment otherwise  than  in  the  peni- 
tentiary." People  ex  rel.  Akin  v.  Kipley, 
171  111.  44,  49  N.  E.  229,  41:  775 
Imposing  imprisonment  in  lieu  of  fine. 

216.  Where  a  statute  prescribes  a  fine  as 
the  punishment  for  giving  liquor  to  minors, 
the  court  has  no  authority  to  impose  im- 
prisonment therefor.  Pressly  v.  State 
(Tenn.)   86.  S.  W.  378,  69:291 

217.  An  ordinance  allowing  imprisonment 
without  giving  a  person  convicted  an  oppor- 
tunity to  pay  a  fine  in  lieu  thereof  is  void, 
wnere  the  charter  of  the  town  authorizes 
imprisonment  only  in  default  of  payment 
of  a  fine.  Calhoun  v.  Little,  106  Ga.  336, 
.32  S.  E.  86,  43:  630 
Excessive  fines. 

Reducing  on  Appeal,  see  Appeal  and  Error, 
1207. 

For  Visiting  Disorderly  House,  see  Disorder- 
ly Houses,  7. 

Question  for  Jury  as  to  Excessiveness,  see 
Trial,   108. 

See  also  supra,  201-205. 

218.  A  fine  prescribed  by  statute  cannot 
be  held  by  the  courts  to  be  excessive  un- 
less it  is  so  clearly  disproportioned  to  the 
offense  as  to  come  necessarily  within  the 
constitutional  prohibition.  State  v.  Main, 
69  Conn.   123,  37  Atl.  80,  36:  623 

219.  A  fine  of  $50  for  violating  an  ordi- 
nance prohibiting  gaming  does  not  consti- 
tute an  error  of  law  on  the  ground  that  it 
is  excessive  and  unjust,  where  it  is  within 
the  limits  prescribed  by  the  city  charter 
and  ordinance.  Greenville  v.  Kemmis.  58  S. 
C.  427,  36  S.  E.  727.  50:  725 

220.  A  fine  of  from  $50  to  $100  for  each 
day  that  street  ears  are  run  in  violation  of 
law  is  not  excessive,  although  a  large  aggre- 
gate of  fines  may  be  made  by  repeatedly 
committing  the  offense.  State  v.  Hoskins, 
58  Minn.  35,  59  N.  W.  545,  25:  759 
Validity  of  legal  part  of  excessive  sentence. 

221.  A  sentence  by  a  court  having  juris- 
diction of  the  person  and  the  offense,  in  ex- 
cess of  that  permitted  by  law.  is  not  void 
in  toto,  but  the  portion  tliereof  which 
might  have  been  le<rallv  imposed  is  valid. 
Re  Taylor,  7  S.  D.  382,  64  N.  W.  253,  45:  136 

d.  Time  of  Imprisonment;  Cumulative  and 
Indeterminate   Sentences. 

Uncertainty  of  Duration  as  Ex  Post  Facto 

Law,  see  Constitutional  Law,   106. 
For  Editorial  Notes,  see  infra,  VI.  §  28. 

222.  The  time  of  absence  from  jail  of  one 


914 


CRIMINAL  LAW,  IV.  e. 


who,  having  been  committed  under  an  alter- 
native judgment  that  he  pay  a  fine  or  be 
imprisoned  a  certain  number  of  days,  se- 
cures his  release  through  the  unauthorized 
act  of  the  sheriflf,  cannot  be  considered  as 
having  been  spent  in  jail  in  satisfaction  of 
the  judgment.  Ex  parte  Vance,  90  Cal.  208, 
27  Pac.  209,  13:  574 

For  attempt  to  commit  crime. 
See  also  infra,  240. 

223.  A  statute  making  the  penalty  of  an 
attempt  one  half  that  prescribed  for  the 
commission  of  the  oflFense  is  void  for  uncer- 
tainty in  cases  where  the  penalty  for  the  of- 
fense is  imprisonment  for  life.  People  v. 
Burns  (Cal.)  69  Pac.  16,  60:  270 

224.  Under  statutes  fixing  the  punish- 
ment for  robbery  at  imprisonment  for  not 
less  than  one  year,  arid  permitting  the 
court,  in  its  discretion,  to  sentence  the  of- 
fender to  imprisonment  during  his  natural 
life,  and  making  the  punishment  for  an  at- 
tempt, imprisonment  for  a  term  not  exceed- 
ing one  half  the  longest  term  of  imprison- 
ment prescribed  upon  conviction  of  the  of- 
fense so  attempted, — an  attempt  to  commit 
robbery  may  be  punished  by  imprisonment 
for  a  definite  term  of  years.  Id. 
When  time  begins  to  run. 

225.  A  six  months'  sentence  to  a  chain 
gang  does  not  begin  to  run  from  the  date 
of  the  sentence  while  the  convict  is  at 
liberty,  where  the  sentence  itself  declares 
that  it  ghall  begin  and  be  counted  from  the 
time  of  his  reception  in  the  chain  gang. 
Neal  V.  State,  104  Ga.  509,  30  S.  E.  858, 

42:  190 

226.  An  order  for  the  execution  of  a  six 
months'  sentence  to  the  chain  gang  may  be 
made  after  the  expiration  of  six  months 
without  calling  on  the  accused  to  show 
cause  against  it,  where  the  sentence  ex- 
pressly declared  that  it  should  begin  from 
the  time  of  his  reception  in  the  chain  gang, 
and  during  the  meantime  he  has  been  at 
liberty  because  of  a  void  direction  of  the 
court  for  the  suspension  of  the  execution 
of  the  sentence.  Id. 
Cumulative  sentences. 

227.  Cumulative  and  successive  sentences 
are  within  the  power  of  a  court  to  impose 
at  common  law,  and  they  may  be  imposed 
by  Federal  courts  without  any  express  au- 
thoritv  by  act  of  Congress.  Howard  v. 
United  States,  43  U.  S.  App.  G78,  75  Fed. 
986,  21  C.  C.  A.  586,  34:  509 

228.  A  consolidation  of  separate  indict- 
ments charging  definite  offenses,  for  the 
purposes  of  trial,  does  not  make  them  one 
offense  so  as  to  permit  but  one  sentence. 

Id. 

229.  "UHiere  four  sentences  in  misdemean- 
or cases  are  imposed  against  the  same  per- 
son on  the  same  day,  each  one  after  the  first 
providing  that  the  term  of  service  should 
begin  to  nm  at  the  expiration  of  the  time 
fixed  by  those  precedine,  the  convict  is  not 
entitled  to  be  discharged  from  custody  until 
he  has  served  the  aggregate  time  fixed  by 
the  four  sentences.  Simmons  v.  Gporsia 
Iron  &  Coal  Co.  117  Ga.  305,  43  S.  E.  780. 

61:  739 


230.  An  escaped  convict  who  under  an- 
other name  is  convicted  and  sentenced  to- 
the  same  penitentiary  for  another  crime- 
may,  at  the  expiration  of  the  latter  sen- 
tence, be  held  to  serve  out  the  remainder 
of  his  first  sentence.  Henderson  v.  James,. 
52  Ohio  St.  242,  39  N.  E.  805,  27:  290- 
Indeterminate   sentences;    deductions. 

Ex  Post  Facto  Law  as  to  Deductions,  see 
Constitutional  Law,  107-109. 

Delegation  of  Power  as  to,  see  Constitution- 
al Law,  234. 

In  Commitment  to  Reform  School,  see- 
House  of  Correction,  6,  7. 

Retrospective  Statute  as  to,  see  Statutes^ 
542. 

See  also  supra,  200. 

For  Editorial  Notes,  see  infra,  VI.  §§  28,  32.. 

231.  A  sentence  of  not  less  than  two  nor 
more  than  four  years,  in  the  discretion  of 
the  board  of  control  of  prisons,  may  be  good 
for  two  years,  although  void  as  far  as  it 
attempts  to  give  discretion  to  the  board. 
People  V.  Cummings,  88  Mich.  249,  50  N. 
W.  310,  14:  285- 

232.  The  possibility  of  a  deduction  by 
?ood-time  credits,  although  contingent  on 
the  conduct  of  the  convict,  does  not  render 
a  sentence  so  indefinite  or  uncertain  that  a 
successive  sentence  to  begin  on  the  expira- 
tion of  the  former  will  be  invalid.  Howard 
V.  United  States,  75  Fed.  986,  43  U.  S.  App. 
678,  21  C.  C.  A.  586,  34:  509- 

233.  A  statute  permitting  the  imposition 
of  a  sentence  of  imprisonment  with  a  mini- 
mum and  maximum  term  is  not  unconsti- 
tutional when  read  in  connection  with  the- 
law  relating  to  prisons  by  which  the  author- 
ities may,  under  certain  circumstances,, 
parole  a  prisoner  at  the  termination  of  a 
minimum  term,  subject  to  his  good  behavior,, 
and  to  the  liability  to  be  rearrested  in  case 
of  breach  of  the  parole.  People  v.  Adams, 
176  N.  Y.  351,  68  N.  E.  636,  63:  406^ 

e.  Place  of  Imprisonment. 

Commitment  to  Reform   School,  see  House 

of  Correction. 
For  Editorial  Notes,  see  infra,  V^T.  §  29. 

Workhouse. 

See  also  Workhouse. 

234.  A  person  convicted  of  selling  liquor 
contrary  to  the  provisions  of  the  Brooks^ 
law,  in  a  county  which  has  a  contract  for 
the  confinement  of  certain  of  its  prisoners^ 
in  the  Allegheny  county  workhouse,  a» 
authorized  by  the  acts  of  1886  and  1871, 
may  be  committed  to  that  institution,  if  hi* 
term  of  imprisonment  is  sufficient,  althougK 
the  Brooks  law  provides  for  confinement  in 
the  county  jail.  Com.  v.  Zelt,  138  Pa.  615, 
21  Atl.  7,  11:  602- 
Prison  outside  of  state. 

235.  A  convict  may  be  sentenced  to  a 
prison  located  beyond  the  state,  when  it  is- 
iiiithorized  and  required  bv  statute.  Mc- 
Kiunev  v.  State.  3  Wyo.  719,  30  Pac.  293. 

16:  710 

236.  Imprisonment  in  the  penrtentiary  of 
a  sister  state,  under  contract  between  the 
states,  does  not  violate  the  Constitution  of 


CRIMINAL  LAW.  IV.  f,  g. 


91S 


the    United    States.     Kingen    v.    Kelley.    3 
Wyo.  5G6,  28  Pac.  36,  15:  177 

Change  of  place. 

Ex  Post  Facto  Law  as  to,  see  Constitutional 
Law,  110. 

237.  Changing  the  mittimus  after  sen- 
tence of  a  prisoner,  to  conform  to  a  change 
in  the  location  of  the  slate  penitentiary, 
does  not  change  or  modify  the  judgment  of 
conviction,  but  may  be  done  at  a  subsequent 
term  of  court.  Kingen  v.  Kelley,  3  Wyo. 
560,  28  Pac.  36,  15:  177 

238.  A  transfer  of  a  convict  from  one 
place  of  imprisonment  to  another  is  not  such 
a  judicial  act  that  it  cannot  be  performed 
by  the  governor  under  authority  of  statute. 
Rich  V.  Chamberlain,  104  Mich.  436,  £2  N.  W. 
584,  "27:573 

f.  Punishment     of     Second     Offenses     and 

Habitual  Criminals. 

Ex  Post  Facto  Law  as  to,  see  Constitutional 

Law,  no. 
For  Editorial  Notes,  see  infra,  VI.  §§  19,  29, 

31. 

239.  Imprisonment  for  a  felonj',  terminat- 
ed by  an  unconditional  pardon,  is  not  to  be 
regarded  as  one  of  the  two  former  im- 
prisonments for  felony  required  by  2  Bates's 
(Ohio)  Ann.  Stat.  •§  7388-11,  to  place  the 
accused  in  the  category  of  habitual  crimi- 
nals. State  V.  Martin,  59  Ohio  St.  212,  52 
N.  E.  188,  43:94 

240.  Conviction  of  attempt  to  commit  rob- 
bery after  conviction  of  prior  crimes  punish- 
able by  imprisonment  in  the  state  prison 
does  not  require  imposition  of  punishment 
under  a  statute  providing  for  life  imprison- 
ment after  such  conviction  of  one  guilty  of 
a  crime  which,  upon  a  first  conviction,  would 
be  punishable,  at  the  discretion  of  the  court, 
by  imprisonment  for  life,  although  one  con- 
victed of  robbery  under  such  circumstances 
would  be  within  the  terms  of  such  statute, 
where  there  was  no  discretion  to  punish  one 
guilty  of  an  attempt  to  commit  robbery  by 
imprisonment  for  life.  People  v.  Burns 
(Cal.)    69   Pac.    16,  60:  270 

g.  Suspension  of  Sentence;  Time  of  Impos- 

ing. 

In  Contempt  Proceeding,  see  Contempt,  90. 

See  also  supra.  226. 

For  Editorial  Notes,  see  infra,  VL  §  28. 

Power  to  suspend. 

241.  The  power  to  suspend  sentence  after 
conviction  is.  at  common  law,  inherent  in  a 
court  of  record  possessing  jurisdiction  in 
criminal  oases.  People  ex  rel.  Forsyth  v. 
Monroe  County  Ct.  of  Sess.  141  N.  Y.  288. 
36  N.  E.  :iSG,  '  23 :  8.36 

242.  Sentence  in  a  criminal  case  may  law- 
fully be  suspended  at  the  pleasure  of  the 
court,  and  the  court's  power  over  an  ac- 
cused is  not  afTocted  or  lost  by  an  order  to 
pay  costs,  both  of  himself  and  a  codefend- 
ant,  or  even  by  committin!?  him  for  refusal 
to  do  so.  since  the  reonirement  to  pay  costs 
is  not  part  of  f'le  sentence.  State  v.  Crook. 
115  N.  C.  760,  20  S.  E.  513,  29:  260 


243.  A  statute  authorizing  a  court  to  sus- 
pend sentence  in  a  criminal  case  after  con- 
viction does  not  encroach  upon  the  constitu- 
tional power  of  the  executive  to  grant  re- 
prieves and  pardons.  People  ex  rel.  Forsyth 
V.  Monroe  County  Ct.  of  Sess.  141  N.  Y. 
288,  36  N.  E.  386,  23:856 

244.  The  suspension  of  a  sentence  alrtady 
pronounced,  until  further  order  of  the  court, 
in  case  defendant  pays  the  costs  that  day, 
is  beyond  the  authority  of  the  court, — at 
least  when  it  is  done  merely  as  a  matter  of 
leniency  to  the  prisoner.  Re  Wgbb,  89  Wis. 
354,  62  N.  W.  177,  27:  356 

245.  A  trial  court  has  no  jurisdiction  in- 
definitely to  suspend  sentence  after  con- 
viction of  crime,  or  to  release  the  prisoner 
on  parole,  when  the  legislature  has  adopted 
a  plan  to  give  persons  convicted  of  crimes 
an  opportunity  to  reform  by  providing  a 
system  of  parole  and  boards  to  administer 
it.  People  ex  rel.  Boenert  v.  Barrett,  202 
111.  287,  67  N.  E.  23,  63:  82 

246.  A  clause  noting  the  suspension  of  a 
sentence,  added  at  the  end  of  the  sentence 
in  a  criminal  case,  should  bfe  ignored  and 
the  sentence  executed  without  regard  there- 
to, where  there  is  no  law  in  force  which 
authorizes  such  a  suspension  Neal  v.  State, 
104  Ga.  509,  30  S.  E.  858,  42:  190 
Loss  of  jurisdiction  to  impose  sentence  by 

suspension. 

247.  A  court  cannot  preclude  itself  or  its 
successor  from  passing  the  proper  sentence 
whenever  such  a  course  appears  to  be  prop- 
er, by  an  order  suspending  sentence  during 
good  behavior.  People  ex  rel.  Forsyth  v. 
Monroe  County  Ct.  of  Sess.  141  N.  Y.  288, 
36  N.  E.  386,  23:  856 

248.  Power  over  a  prisoner  is  lost  upon 
indefinite  suspension  of  sentence  without 
recognizance  after  his  plea  of  guilty,  and  the 
court  cannot  subsequently  sentence  him. 
People  ex  rel.  Smith  v.  Allen,  155  111.  61,  39 
N.  E.  568,  41 :  473 

249.  Jurisdiction  to  impose  sentence  upon 
one  convicted  of  crime  is  lost  by  permitting 
him  to  go  at  large  upon  his  own  recogni- 
zance pending  a  motion  for  new  trial,  and 
taking  no  further  action  in  the  case  until 
after  the  expiration  of  several  terms  of 
court.  People  ex  rel.  Boenert  v.  Barrett, 
202  111.  287,  67  N.  E.  23,  63:82 

250.  The  rieht  to  take  advantage  of  the 
loss  of  jurisdiction  to  impose  sentence  by 
permittine  the  convict  to  go  at  large  for  an 
unreasonable  time  upon  his  own  recogni- 
zance is  not  lost  by  acting  upon  the  favor 
conferred  by  the  court.  Id. 

251.  An  order  committing  a  defendant  to 
serve  out  a  sentence  previously  pronounced 
but  suspended,  made  after  the  time  of  im- 
prisonment named  in  the  sentence  has  ex- 
nired,  is  void  for  want  of  jurisdiction.  Re 
Webb,  89  Wis.  354,  62  N.  W.  177,  27:356 
Setting  aside  suspension. 

252.  A  suspension  of  sentence  without 
conditions  expressed  in  the  judgment  may 
be  set  aside  by  the  court  on  its  own  motion, 
and  the  execution  of  the  sentence  ordered 
at  anv  time  dnrinir  the  same  term.  Weber 
V.  State,  58  Ohio  St.  616,  51  N.  E.  116, 

41:  472 


918 


CRIMINAL  LAW.  IV.  h,  1. 


h.  Parole;    Reprieve;    Pardon, 
1.  In  General. 

Stay  of  Execution  on  Appeal  as  Reprieve, 

see  Appeal  and  Error,  118. 
Validity    of   Agreement   to    Secure   Pardon, 

see  Contracts,  494. 
See  also  supra,  127,  131,  -245. 

253.  In  order  to  impeach  a  pardon  for 
fraud  it  must  be  done  in  a  direct  manner^ 
and  not  collaterally  by  contesting  its 
validity  when  set  up  as  a  bar  to  a  prosecu- 
tion. Territory  v.  Richardson,  9  Okla.  579, 
eO   Pac.   244,  49 :  440 

254.  A  territorial  legislature  has  no  power 
to  impose  limitations  upon  the  manner  in 
which  the  pardoning  power  shall  be  used, 
set  up,  alleged,  or  called  to  the  notice  of 
the   court   as   a   defense.  Id. 

254a.  A  "conviction"  after  which  the  gov- 
ernor can  grant  pardon  under  La.  Const. 
1879,  art.  66,  is  made  by  a  verdict  of  guilty, 
although  sentence  is  not  yet  pronounced. 
State  ex  rel.  Butler  v.  Moise,  48  La.  Ann. 
109,  18  So.  943,  35:  701 

255.  The  pardoning  power  of  the  govern- 
or extends  to  cases  of  contempt.  Sharp  v. 
State  ex  rel.  Cason,  102  Tenn.  9,  49  S.  W. 
752,  43:  788 
Validity   of   pardon. 

See  also  infra,  267. 

2.56.  Failure  to  make  application  for  a 
pardon  in  the  first  instance  to  the  Michigan 
V>oard  of  pardons  does  not  make  a  pardon 
granted  by  the  governor  void.  People  v. 
Marsh,  125  Mich.  41P,  84  N.  W.  472,   51:  461 

257.  A  pardon  granted  by  the  governor 
in  the  exercise  of  his  constitutional  author- 
ity is  not  invalid  because  it  was  not  pro- 
<^ured  in  pursuance  of  statutory  regulations. 
Territorv  v.  Richardson,  9  Okla.  579,  60  Pac. 
r244,         '  49 :  440 

258.  A  pardon  by  one  who  received  a  cer- 
tificate of  election  as  governor,  and  who  was 
inducted  into  office,  but  whose  title  has 
been  adjudged  invalid  in  a  contest  duly  in- 
augurated, in  which  another  has  been  de- 
■flared  elected,  is  of  no  efTect.  Powers  v. 
Com.  110  Ky.  386,  61  S.  W.  735.  .53:  245 
Infringing  governor's  power  as  to  pardon. 
See  also   supra,  239,  243. 

259.  The  jiower  to  pardon  after  conviction 
of  crime  which  is  conferred  upon  the  gov- 
ernor and  other  specified  ullicers  by  Fla. 
Const,  art.  4,  in  all  cases  except  impeach- 
ment and  treason,  is  exclusive  of  the  legis- 
lative power  to  grant  a  pardon  bv  statute. 
Singleton  v.  State.  .38  Fla.  207,  2l'So.  21. 

34:  251 

260.  The  exercise  of  the  pardoning  power 
is  not  infringed  by  a  statute  which  author- 
izes the  susjM'iision  of  certain  jjcnalties  of 
a  prohibitory  liquor  law,  in  any  city  or 
town,  upon  certain  conditions,  including  the 
consent  of  a  specified  portion  of  tlie  elec- 
tor>.  State  ex  rel.  Witter  v.  Forkner,  94 
Inuii.    1.   62    N.    W.    772,  28:200 

■2iil.  The  constitutional  power  of  the  gov- 
ernor to  grant  a  pardon  or  commutation  of 
eentence  is  not  infringed  by  a  statute  pro- 
viding a  board  of  pardons  to  investigate  the 


facts  on  petition  for  a  pardon,  and  to  report 
the  results  of  their  investigation,  with  such 
recommendations  as  to  them  shall  seem  ex- 
pedient, where  such  recommendations  have 
no  binding  force  upon  the  governor.  Rich 
V.  Chamberlain,  104  Mich.  436,  62  N.  W.  584, 

27:  573 

262.  A  restoration  of  competency  to 
testify  as  a  witness  which  was  lost  by  con- 
viction of  a  crime  cannot  be  made  by  legis- 
lative act  where  the  Constitution  confers 
the  pardoning  power  upon  a  board  consist- 
ing of  the  governor  and  severaF  associates. 
Singleton  v.  State,  3«  Fla.  297,  21  So.  21, 

34:  251 

263.  Where  the  pow^r  to  grant  pardons  is, 
by  the  Constitution,  vested  in  the  governor, 
the  legislature  cannot  create  a  board  with 
authority  to  grant  conditional  paroles  or 
releases  from  the  state  prisons  and  houses 
of  correction.  Re  Conditional  Discharge  of 
Convicts,  73  Vt.  414,  51  Atl.  10,  56:  658 

204.  A  statute  providing  for  a  maximum 
and  minimum  sentence  of  imprisonment 
for  convicts,  and  giving  a  board  power  to 
grant  paroles  after  the  expiration  of  the 
minimum  time,  conflicts  with  the  govern- 
or's pardoning  power.  Id. 

265.  A  statute  authorizing  a  parole  or 
conditional  release  by  the  board  of  control 
of  prisons,  of  a.  prisoner  who  is  sentenced 
for  an  indefinite  term,  whereby  he  remains 
in  the  legal  custody  of  the  board,  although 
outside  the  prison  and  subject  to  be  takes 
back  on  order  of  the  board  if  he  violates  the 
conditions  of  his  parole  or  release,  is  in  vio- 
lation of  Mich.  Const,  art.  6,  §  1, 
giving  the  judicial  power  to  the  courts,  or 
art.  5,  §  11,  giving  pardoning  power  to  the 
governor.  People  v.  Cummings,  88  Mich. 
249,  50  N.  W.  310,  14:285 
Time  of  granting  pardon. 

266.  A  pardon  extends  to  every  offense 
known  to  the  law,  and  may  be  exercised  at 
any  time  after  its  commission,  either  before 
legal  proceedings  are  taken,  or  during  their 
pendency,  or  after  conviction  and  judgment. 
Territorv  v.  Richardson,  9  Okla.  579,  60 
Pac.  244,  49:  440 

207.  A  pardon  granted  after  conviction 
and  pending  a  hearing  in  the  supreme  court, 
to  which  the  case  was  removed  by  the  de- 
fendant by  bill  of  exceptions  before  sen- 
tence, is  valid  under  Mich.  Const,  art.  5, 
§11,  providing  that  the  governor  may  grant 
pardons  after  conviction,  since  the  defend- 
ant admits  his  guilt  and  waives  the  bill 
of  exceptions  by  his  petition  for,  and  ac- 
ceptance of,  the  pardon,  and  asking  to  have 
the  record  remanded  to  the  trial  court  on 
the  strength  thereof.  People  v.  ^larsh,  125 
Mich.  410,  84  N.  W.  472.  51:  461 
Execution  of  reprieved  criminal. 

208.  The  granting  of  a  reprieve  and  the 
fixine  of  a  day  for  the  execution  of  a  con- 
victed criminal  is  by  tlie  common  'aw  a 
judicial  power,  and  cannot  be  exercised  by 
tlie  governor,  or  person  administerinji  the 
Hovernniont,  except  in  so  far  as  it  is  ex- 
iirosslv  porniittod  by  the  Constitution. 
State,'  Clifford,  Prosecutor,  v.  Heller  (N.  J. 
Sup.)  63  N.  J.  L.  105,  42  Atl.  155,      57:  312 


CRIMINAL  LAW.  IV.  h,  2,  V 


917 


269.  A  warrant  by  the  governor  for  the 
execution  of  a  reprieved  criminal  cannot  be 
lawfully  issued  more  than  ninety  days  after 
«3onviction,  under  N.  J.  act  April  16,  1846, 
providing  that  where  a  reprieve  is  granted 
by  the  governor  he  shall  issue  liis  warrant 
to  the  sheriff  of  the  proper  county,  fixing 
a  time  for  execution  of  the  sentence,  since 
N,  J.  Const.  1844,  art.  5,  cl.  9,  gives  the 
executive  power  to  grant  a  reprieve  to  ex- 
tend until  the  expiration  of  a  time  not  ex- 
ceeding ninety  days  after  conviction,  and 
art.  3  prohibits  the  exercise  by  the  gov- 
ernor of  any  legislative  or  judicial  }>ower 
except  as  expressly  provided  in  the  Consti- 
tution. Id. 
Effect  of  pardon. 

For  Editorial  Notes,  see  infra,  VI.  §«  12. 

270.  A  pardon  is  an  act  of  grace,  proceed- 
ing from  the  powers  intrusted  with  the  ex- 
ecution of  the  laws,  which  exempts  the  in- 
dividual upon  whom  it  is  bestowed  from  the 
punishment  which  the  law  inflicts  for  the 
commission  of  a  crime.  It  is  a  remission  of 
guilt,  and  a  declaration  of  record  by  the  au- 
thorized authority  that  a  particular  individ- 
ual is  to  be  relievea  from  the  legal  conse- 
quences of  a  particular  crime.  Territory  v. 
Richardson,  9  Okla.  579,  60  Pac.  244,    49:  440 

271.  A  remission  of  fine  is  made  by  a  par- 
don granted  while  the  fine  remains  in  the 
hands  of  the  sheriff  to  whom  it  was  paid, 
before  he  has  paid  it  over  to  the  treasury  or 
been  charged  with  it  in  an  audit  of  his  ac- 
counts. Fischel  v.  Mills,  55  Ark.  344,  18  S. 
W.  237,  15:  395 

2.  Conditional. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 91. 
See  also  supra,  263-265. 
For  Editorial  Notes,  see  infra,  VI.  §  28. 

272.  A  convict  who  elects  to  accept  a  pa- 
role, and  avails  himself  of  the  liberty  which 
it  confers,  must  do  so  subject  to  the  con- 
ditions upon  which  alone  it  is  granted  to 
him.    Fuller  v.  State,  122  Ala.  32,  26  So.  146, 

45:  502 

273.  The  parole  of  a  convict  is  in  the  na- 
ture of  a  conditional  pardon,  and  within  the 
constitutional  grant  of  the  pardoning  power 
to  the  governor.  Id. 

274.  Mich.  Laws  1893,  act  No.  207,  popu- 
larly known  as  the  "jag  cure  act,"  which 
authorizes  a  person  convicted  of  drunkenness 
to  be  released  on  a  recognizance  conditioned 
that  he  will  immediately  take  treatment  for 
the  cure  of  drunkenness  of  some  corporation 
organized  by  law  to  make  and  file  reports 
in  reference  thereto,  and  that  he  will  obey 
all  regulations  prescribed  by  those  adminis- 
tering such  cure,  with  a  further  provision 
that  he  may  be  acquitted  and  discharged  at 
the  end  of  sixty  days  on  proof  that  he  has 
conformed  to  such  conditions. — is  unconsti- 
tutional as  an  attempt  to  permit  unofficial 
persons  to  prescribe  rules  which  shall  acquit 
persons  charged  with  crime,  while  these 
rules  may  be  as  variable  as  the  corporations 
are  numerous.  Senate  of  the  Happy  Home 
Club  V.  Alpena  County,  99  Mich.  117.  57  N. 
W.  1101,  23:  144 


Right  to  grant  conditional  pardon. 

275.  A  pardon  on  condition  that  the  pris- 
oner "leave  the  state  within  forty-eight 
hours,  never  to  return,"  may  be  lawfully 
granted  by  a  governor  who  has  authority, 
under  the  state  Constitution,  to  "grant  par- 
don on  such  terms  and  under  such  restric- 
tions as  he  shall  think  proper."  State  v. 
Barnes,  32  S.  C.  14,  10  S.  E.  611,  6:  743 

276.  A  constitutional  provision  forbidding 
exile  does  not  prevent  the  granting  of  par- 
dons to  convicts  upon  condition  that  they 
leave  the  state  and  never  return.  Ex  parte 
Hawkins,  61  Ark.  321,  33  S.  W.  106,    30:  730 

277.  The  condition  attached  to  the  grant- 
ing of  a  pardon,  that  the  convicted  person 
shall  pay  to  the  county  a  specified  sum  for 
its  reimbursement  for  the  expense  incurred 
for  the  prosecution,  is  not  unlawful  so  as  to 
render  the  pardon  invalid.  People  v.  March, 
125  Mich.  410,  84  N.  W.  472,  51 :  461 
Breach  of  condition. 

Person  Violating  Condition  as  Fugitive  from 
Justice,  see  Extradition,  12. 

Issuing  Warrant  for  Return  upon,  see  Gov- 
ernor, 1. 

See  also  supra,  71,  233. 

278.  On  forfeiture  of  a  pardon  by  breach 
of  the  conditions,  a  convict  becomes  liable  to 
serve  that  part  which  he  has  not  already 
served  of  the  term  of  imprisonment  for 
which  he  was  sentenced,  although  the  origi- 
nal term  has  long  since  expired.  State  v. 
Barnes,  32  S.  C.   14,  10  S.  E.  611,       6:  743 

279.  The  summary  arrest  of  a  convict  who 
has  violated  his  parole,  and  his  summary  re- 
turn or  remand ment  to  servitude  or  impris- 
onment under  his  sentence,  are  not  in  vio- 
lation of  the  constitutional  guaranties  gov- 
erning the  arrest  and  trial  of  criminals. 
Fuller  V.  State,  122  Ala.  32,  26  So.  146, 

46:  502 

280.  A  convict  who  has  received  and  ac- 
cepted a  conditional  pardon  cannot  be  ar- 
rested and  remanded  for  nonperformance  of 
the  condition,  upon  the  mere  order  of  the 
governor,  but  is  entitled  to  a  hearing  be- 
fore a  court  and  an  opportunity  to  show  per- 
formance of  the  condition,  or  legal  cause  for 
his  failure  to  perform.  State  ex  rel.  O'Con- 
nor V.  Wolfer,  53  Minn,  135,  54  N.  W.  1065, 

19:  783 

281.  On  a  hearing  as  to  the  performance 
of  the  condition  of  a  pardon,  where  a  convict 
is  rearrested  for  failure  to  perform  such  con- 
dition, he  is  not  entitled  to  a  jury  trial  as 
a  matter  of  right,  except  upon  the  question 
whether  he  is  the  same  person  who  was  con- 
victed, if  he  pleads  that  he  is  not.  Id. 


V.  Record. 

Record  on  Appeal,  see  Appeal  and  Error,  IV. 
Presumption  as  to,  see  Evidence,  629. 
See  also  supra,  138. 

282.  The  "face  of  the  record"  considered 
on  a  motion  in  arrest  of  judgment  on  indict- 
ment embraces  not  only  the  face  of  the  in- 
dictment, but  the  entire  record  as  made  up 
to  that  point.  State  v.  Haines,  51  La.  Ann. 
731,  25  So.  372,  44:  837 


918 


CRIMINAL  LAW,  VI.  (Ed.  Notes.) 


283.  The  record  in  a  murder  case,  which 
does  not  show  that  the  prisoner  was  present 
at  any  time  during  the  trial  except  when  he 
was  arraigned  and  pleaded,  does  not  show 
that  he  had  legal  and  constitutional  trial, 
and  is  fatally  defective.  French  v.  btate,  85 
Wis.  400,  55  JS.  W.  566,  21:  402 


VI.  Editorial  Notes. 

For  Review,  on  Appeal,  of  Decisions  in 
Criminal  Cases,  see  Ap- 
peal and  Error,  XI.  §§  11, 
12,  14. 

a.  Criminal  liability;  excuses;  defenses. 

§  I.  Generally. 

As  to  Self -Defense,  see  Assault,  III;  Homi- 
cide, IV. 
Ignorance  of  law  as  an  excuse  for  crime. 

11:  810.* 
Ignorance  of  fact  as  an  excuse.     11:  810.* 
Cuilty  knowledge  as  an  element  of  crime. 

10:  35.* 
Intent   as  an  element   of  crime.      11:  807; 

13:  134.* 
Validity  of   statute  making  it  criminal  to 
have    possession    of   prop- 
erty  which   is  capable   of 
criminal  use.    20:  52. 
Criminal   liability   for   violation   of   statute 
limiting    hours    of    labor. 
65:  50. 
Good  character  as  a  defense.     8:  301.* 
Criminal   liability  of  newspaper   proprietor 
for   libel    published   with- 
out his  consent.     26:  779. 
Adoption  of  common  law  in  United  States 
as    to    criminal    matters. 
22:  507. 
Want  of  internal  revenue  stamp  on  instru- 
ment requiring  stamp,  as 
affecting    criminal    prose- 
cution.    46:  454. 
§  2.  Criminal  liability  of  children. 
The  period  of  indiscretion — innocence  legally 
presumed.     36:  196. 
The  common-law  rule.    .36:  196. 
The  common-law  rule  changed  by  stat- 
ute.   36:  197. 
The    dubious    age    of    discretion — innocence 
presumed      prima      facie, 
guilt  may  be  proved.    3G: 
197. 
As    to    felonies    other    than    rape.     36: 
197. 
Murder.    36:  200. 
Assault  with  intent  to  inflict  great 

bodily  injurv.     36:  201. 
Arson.     36:  201. 
Burglary.    .36:  201. 
Larceny.     36:  201. 
Larcenv  by  bailee.     36:  202. 
Accessory  "to  theft.     .36:202. 
Bigamy  or  polygamy.     36:  202. 
False  pretenses.     ,30:  203. 
Perjury.    36:  203. 
As  to  rape.     36:  203. 

The  English  rule.    36:  203. 
The  American  rule.     30:  203. 


Lesser  crimes  not  amounting  to  rape. 
36:  204. 
Assault    with    intent    to    commit 
rape.       36:  204;      36:  205; 
36:  206. 
Aiding  and  assisting.     36:  204. 
Common  "assault"  upon  a  female. 

36:  205. 
Indecent  assault.    36:  205. 
Assault  and  battery  upon  a  female. 
36:  206. 
Misdemeanors.    36:  206. 

Assault   and   battery    in    ordinary 

cases.    36:  206. 
Gambling.     36:  207. 
Malicious  trespass.     36:  207. 
Misdemeanors  connected  with  own- 
ership of  land.    36:207. 
Vagrancy.    36:  207. 
The  age  of  presumed  discretion.    36:  207. 
The  rule  stated.     36:  207. 
Particular  applications  of  the  rule.    36: 
207. 
To  manslaughter  and  murder.    36: 

207. 
To  Sabbath  desecration.    36:  208. 
To  riot.    36:  208. 
To  obstruction  of   railway  track. 

36:  208. 
To  rape.    36:  208. 

To  failure  to  support  wife  (Mich- 
igan).   36:208. 
To  seduction.     36:  208. 
To  treason.    36:  208. 
Confession  of  infants.    36:  208. 
Command  of  parent  no  excuse  for  infant's 
criminal    act    done   there- 
under.   36:  210. 
Punishment  of  infants.    36:  210. 
§  3.  Mental  condition  as  affecting  criminal 

responsibility. 
Presumption    as    to    Sanity,    see    Evidence, 

XIII.  §  14. 
Burden  of  Proof  as  to  Sanity  or  Insanity, 

see  Evidence,  XIII.  §  29. 
Expert  and  Nonexpert  Evidence  as  to  San- 
ity, see  Evidence,  XIII.  §§ 
65-68. 
What  are  insane  delusions.     37:  261. 
Morphinism  as  affecting  responsibility.    39: 

262. 
Kleptomania  as  a  defense  to  theft.    18:  229. 
Effect  of  hypnotism  in  criminal  cases.     40: 

269. 
Proof  of  other  crimes  to  rebut  defense  of 

insanity.    62 :  300. 
Insanitv  after  commission  of  criminal  act. 

38:  577. 
Presumption    of    continuance    of    insanity. 

35:  117. 
§  4.  Irresistible  impulse  as  excuse  for  crime. 
Generally.     18:  224. 

Effect  of  disease  to  create   irresistible  im- 
pulse.   18:  228. 
Impulse    obliterating    sense    of    right    and 

wrong.     18:  229. 
Kleptomania.     18:229. 
§  5.  vVhat  intoxication  will  excuse  crime. 
The  general  rule.     36:  465. 
When  intoxication  may  be  shown.     36:  467. 
Generally.    36:  467. 
l>arceny;  robbery.    36:  469. 


CRIMINAL  LAW,  VI.  (Ed.  Notes.) 


919 


Burglary.     36:  470. 
Forgery.     36:  470. 
Homicide.     36:  470. 
Intent.     36:  470. 
Wilful  drunkenness.     36:473. 
Deliberation     and      i)remeditation. 

36:  473. 
Provocation;  self-defense.     36:  476. 
Assaults.     36:  477. 
Rape.     36:479. 

Attempts  to  commit  suicide.    36:  479. 
Insanity  induced  by  intoxication.    36 :  479. 
The  general  doctrine.     36:  479. 
What  degree  of  insanity  excuses.     36: 

480. 
EflFect  of  particular  susceptibility  to  in- 
sanity   from    dj-ink.     36: 
482. 
Intoxication  under  the  Texas  statute.  36 :  483. 
Involuntary  intoxication.     36:  484. 
Voluntary    intoxication    in    extenuation    of 

crime.     8:  33.* 
§  6.  Principals;     accessories;     conspirators; 

accomplices. 
Admissibility    of    acts    and   declarations   of 

co-conspirators.    1 :  273.* 
Aiders  and  abetters  of  principals.     13:  195.* 
Aiders  and  abetters  guiltv  as  principals.    8: 

297.* 
Liability  for  acts  of  associates.     1:  211.* 
Spectators    at    prize    fight    as    accomplices. 

15:  516. 
Basing  an    indictment    upon   testimony    of 

accomplices.    28:  319. 
€hild  as  accessory  to  theft.     36:  202. 
-§  7.  Criminal  and  penal  liability  for  act  of 

copartner,  servant,  or  agent. 
<5eneral  rules.    41:  650. 

Application  to  particular  subjects.     41:  652. 
Crimes  against  the  person.    41:  652. 
Forgery,  burglary,  larceny.     41 :  652. 
Libel.    41 :  653. 

Violation  of  revenue  laws.    41:  054. 
Maintenance  of  nuisances.     41:   655. 
Adulteration  of  food  products.    41:  656. 
Trespass  in  wilfully  cutting  trees.    41: 

657. 
Sabbath  breaking.    41:  658. 
Dealing  with   slaves.     41:658. 
Gaming  on  licensed  premises.     41 :  659. 
-    Miscellaneous  offenses.    41:600. 
Violation  of  liquor  laws.    41:  661. 
Conflict  of  authority.     41:  661. 
Unlawful  sale  generally.    41:  601. 
By  partner.    41:  601. 
By  agent  or  servant.     41 :  602. 
Selling  without  license.     41:  604. 
By  partner.    41:  604. 
By  agent  or  servant.    41:  660. 
"Selling  to   minors.     41:  666. 
By  partners.    41:660. 
By  agents  or  servants.    41 :  000. 
Selling  to  habitual  drunkards.    41:  669. 
Selling  on  Sunday.    41 :  670. 
Violation   of   other    miscellaneous    pro- 
visions.    41 :  670. 
Evidence  of.     41 :  672. 

Presumption  and  burden  of  proof. 

41 :  072. 
Admissibility.    41:  672. 
Sufficiency.  ^41:  673. 
<Question  fir  jury.    41:676. 


§  8.  Attempt;  solicitation. 

What  constitutes  an  attempt  to  commit  a 

crime.     3:  743.* 
Attempt  to  commit  crime.    10:  109.* 
Criminality  of  solicitation  to  crime  which  is 
not  consummated.  25:  434. 
How   far   punishable    as    assault.      25 

434. 
How  far  punishable  as  attempt.     25 

434. 
Plow  far  punishable  as  solicitation.    25 
434. 
§  g.  Instigation  or  consent  to  crime. 
For  the  purpose  of  detecting  criminal,  as  a 
defense     to     prosecution. 
25:  341. 
Burglary.    25:  342. 
Robbery.     25:  343, 
Larceny.    25:  343. 
Stealing  slave.    25 :  344. 
Trading  with  slave.     25:  344. 
Offering  bribe.     25:345. 
Counterfeiting.    25:  345. 
Receiving  stolen  goods.     25:  345. 
False  pretenses.    25:  345. 
Putting  awav  forged  instruments.    25: 

'345. 
Obstructing  railway  track.     25:  345. 
Conspiracy.    25:  345. 
Selling  otecene  prmts  and  lottery  tick- 
ets.    25:  345. 
Selling  liquor.    25:346. 
Offenses  against  mails.     25:  346. 
§10.  Duress  as  an  excuse  for  crime. 
Generally.    19:  357. 
Duress  of  wife  by  husband.     19:  358. 
§11.  Criminal  negligence. 
Defined.     3:  644.* 
Negligence  as  supplying  place  of  criminal 

intent.     3:  645.* 
Imputing  negligence  of  servant  to  master. 

3:  645.* 
Homicide  caused  by  carelessness  and  negli- 
gence.   3:  645.* 
Negligent  homicide.     61:277;   63:392. 

Application  of  doctrine  of  contributory 
negligence.    61:  298. 

b.  Jurisdiction;  procedure;  protection  of 
accused. 

§12.  Generally. 

Constitutionality  of  statute  authorizing 
costs  of  prosecution  to  be 
imposed  upon  prosecuting 
witness.    61:  489. 

Acquittal  or  discharge  on  criminal  charge  as 
evidence  of  want  of  prob- 
able cause  in  action  for 
malicious  prosecution.  64: 
474. 

Effect  of  pardon  on  fine,  forfeiture,  or  costs. 
15:  395. 

Entry  of  judgment  nunc  pro  tunc  in  crim- 
inal ease.    20:  146. 

Separation  of  jury.     3:  211.* 

Effect  of  wthdrawal  of  juror  in  criminal 
case.     48:  440. 

Number  and  agreement  of  jurors  necessary 
to  valid  verdict.    43:  49. 

Injunction  against  criminal  proceedings. 
21:84. 


930 


CRIMINAL  LAW,  VL  (Ed.  Notes.) 


Right  of  state  to  appeal  in  a  criminal  case. 
19:  342. 
From  judgment  on  special  verdict,  de- 
murrer, etc.     19:  345. 
Right  of  state  to  appeal  conferred  by 

statute.     19:  345. 
Statutory  provisions  of  various  states. 
19:  346. 

Correction  of  verdict  in  criminal  cases.  23: 
723. 

What  constitutes  residence  out  of  state 
within  statute  of  limita- 
tions.     17:  226. 

First  and  last  days  in  computmg  time  for 
prosecutions.    49:  216,  224. 

Right  of  defendant  to  public  trial.     14:  809. 

Right  to  separate  trial  in  criminal  case.  5: 
836. 

What  is  an  infamous  crime  within  consti- 
tutional provisions  requir- 
ing presentment  by  a 
grand  jury.    17:  764. 

EflFect  of  conviction  of  crime  upon  marriage 
relation.     31:  515. 

§  13.  Jurisdiction. 

Removal  of  criminal  causes  into  Federal 
courts  from  other  Federal, 
or  from  state,  courts.  53: 
568. 

Jurisdiction  of  criminal  actions  against  con- 
sul.    45:  584. 

Jurisdiction  to  punish  crimes  committed  by 
or  against  Indians.  21: 
169. 

Abduction  or  wrongful  bringing  of  criminals 
into  jurisdiction  as  a  de- 
fense to  prosecution.  15: 
177. 

Power  of  consul  to  send  criminals  to  home 
country  for  trial.    45:  485. 

§  14.  Situs  or  locality  of  crime. 

Crime  committed  through  the  agency  of  the 
mails  or  of  carriers.  19: 
775. 

Of  crime  committed  by  shooting  across  state 
boimdary.     28:  59. 

§  15.  Proceedings  for  violation  of  ordinances. 

How  far  to  be  regarded  as  prosecutions  for 
crime.     .33:  33. 
General  rule.    33:33. 
State  decisions.     33:  3."). 

§  16.  Constitutional       rights       of      person 
charged  with  felony. 

Right  to  appear  in  person  and  with  counsel. 
5:  832.* 

Right  to  process  to  procure  witnesses.  5: 
833.* 

Right  to  be  informed  of  nature  of  accusa- 
tion.    5:  8.3.3.* 

Right  "to  be  confronted  with  witnesses 
against  him.     5:  833.* 

Right  to  be  present  during  trial.   5:  8.34.* 
Waiver  of  right  to  be  present.    .'">:  835.* 
Presence,  when  not  necessary.     5:  835.* 
>«ecessity  that  record  show  that  lie  was 
present.     5:  835.* 

Right   of   trial   bv   jury   in   criminal    cases. 
'5:  83.5.* 
Waiver  of  right.     5:8,36.* 

Right  to  a  separate  trial.     5:  836.* 

§  17.  Arraignment;  plea. 

Effect  of  defendant's  standing  mute.     10:  92.' 

Effect  of  failure  to  arraign.    10:  91.* 


Xecessity  of  arraignment.     10:  91.* 
Proceedings  on  arraignment.     10:  92.* 
Statute  allowing  plea  of  guilty  in  capital 

case.    16:  358. 
§18.  Different  offenses  by  same  act. 
Prosecution  and  punishment  of  distinct  of- 
fenses committed  by  sin- 
gle   sale    of    intoxicating 
liquor.     45:  858. 
General  rule.  45:  858. 
Principles   exemplified.      45:  859. 
§19.  Former  jeopardy. 
Plea  of.     1:451.* 
As  a  defense;  when  jeopardy  attaches.     Ir 

451;*  4:543.* 
On  dismissal  of  jury.     1 :  452.* 
By  reason  of  the  discharge  of  the  jury  in  the 
prisoner's     absence.       44 : 
694. 
Conviction  or  acquittal  of  ottense  as  a  bar 
to   prosecution   for    homi- 
cide in  commission  of  the 
offense.    63:  405. 
Increasing  severity  of  punishment  for  second 
or  subsequent  offense.   34: 
400. 
Decision  as  to,  as  a  Federal  question.     62: 

530. 
§  20.  Self-crimination. 
E.xemption    from,    generallv.       4:  766;*    9: 

323;*  11:  591.* 
By  experiment  in  presence  of  jury.    15:  223. 
Constitutional     protection      against     being 
forced  to  furnish  evidence 
to   be   used   against   one's 
self  in   a   civil   case.     29: 
811. 
Provisions  against  self -accusation.     29: 
811. 
Limitation  to  criminal  proceedings. 

29:  811. 
Application  to  proceedings  for  pen- 
alties and  forfeitures.    29: 
813. 
General    doctrine    as    to    evidence 
against     one's     self.     29: 
815. 
The  contrary  doctrine.     29:  817. 
Parties  in  interest.     29:  818. 
Unreasonable     searches     and     seizures. 

29:  818. 
Right  of  trial  by  jury.     29:  819. 
Due  process  of  law.    29:  819. 
Distinction  between   civil  and  criminal 
or  penal  proceedings.     29: 
820. 
Effect  of  statutes  prohibiting  the  use  of  tes- 
timony   against    the    wit- 
ness. '14 :   407;  26:  418. 
Use  of  testimony  given  in  course  of  legisla- 
tive    investigation     upon 
subsequent  criminal  prose- 
cution of  witness.   1 :  274.* 
Admissibility  in  evidence  against  accused  of 
documents  or  other  thing* 
taken  from  him.     59:  465. 
Constitutional  restrictions.     59:  465. 
General       statement  —  application. 

59:465. 
I'nreasonable     searches     and    seiz- 
ures.    59:  466. 
Compelling    evidence   against    self. 
69:  468. 


CRIMINAL  LAW,  VI.  (Ed.  Notes.) 


92 1> 


Effect  of   illegal   or   improper    seizure. 

59:  470. 
Rule  as  to  articles  unlawfully  possessed, 
or  in  which  the  puolic  has 
an  interest.    59:  472. 
To  what  procoedinjjs  foregoing  rules  ap- 
ply.    59:  473. 
§  21.  Right    to   compel  accused   to   exhibit 

himself  for  identification. 
Cases  denying  the  right.     28:  699. 
Cases  asserting  the  right.    28:  700. 
Comparison  of  cases.     28:  703. 
Waiver    of    the    constitutional    exemption. 

28  •  703 
The  English  rule.    28:  704. 
§  22.  Right  of  prisoner  to  appear  unman- 

acled  at  trial. 
In  general.     39:  82i.  " 

When  justifiable.     39:  822. 
Upon  his   arraignment  and   sentence.      39: 

824. 
As  a  ground  of  reversal   and  review.     39: 

824. 
Provisions  of  state  Constitutions  and  stat- 
utes.    39:  825. 
§  23.  Insanity  after  commission  of  criminal 

act. 
Effect;  generally.     38:  577. 
Question,  when  and  how  raised.     38:  578, 
Test   of  insanity  which   will  prevent   trial. 

38:  579. 
Determination    as   to    submission   of   issue. 
38:  580. 
Doubt  as  to  sanity.    38:  580. 
Evidence  to  establish  doubt.     38:  581. 
Discretion  of  the  court  as  to.    38:  581. 
Disposition  of  the  issue.     38:  582. 
How  tried;  generally.     38:  582. 
Procedure  on  trial.    38:  583. 
Effect  of  the  determination.     38:  585. 
Insanity  after  verdict.     38:  587. 
Insanity  after  judgment.    38:  588. 
Appeals.     38:  589. 
Effect  of  recovery.     38:  590. 
§  24.  Power  of  public  prosecutor  to  dismiss 

prosecution. 
The  origin  and  nature  of  the  power.     35: 

701. 
The  power  absolute,  when  and  where.     35: 
701. 
In  general.     35:  701. 
After  verdict.     35:  704. 
The  power  limited  by  the  will  of  the  qourt, 
when  and  where.    35:  705. 
The  court  may  advise,  but  cannot  compel, 
the  exercise  of  the  power. 
35:  708. 
The   power  limited  by  the  will   of  the  ac- 
cused, when.     .35:  709. 
The  power  exercised  toward  one  of  several. 
35:  710. 
For  the  purpose  of  qualifying  him  as  a 
witness      against     others. 
35:  710. 
When  others  onlv  are  found  guilty.    .33: 
711. 
The  power  to  correct  the  indictment  or  in- 
formation by  dismissal  as 
to  a  part.     .35:  712. 
When  it  contains  several  counts.     35: 

712. 
WTien  it  contains  only  one  count.     35: 
714. 


The  power  absolute  after  new  trial  granted, 

or  appeal  taken.  35: 716. 
The  power  of  the  reviewing  court,  35:  716. 
The   power   to   recall   the   dismissal   of  the- 

prosecution.     35:  716. 
§  25.  Delay  of  prosecution  as  ground  for  dis- 
charge. 
Where  there  is  no  cause  for  delay.    56:  613. 
In  failing  to  indict  or  to  file  an  information. 

56:  515. 
Where  the  statutory  time  has  not  elapsed. 

56:  518. 
Caused  by  appeal  or  error,     56:  518, 
Where  there  is  a  mistrial  or  a  new  trial. 

56:  519, 
Where  the  indictment  is  set  aside  or  nolled 

and  new  indictment  found. 

56:  522. 
Where  defendant  is   held  under  several   in 

dictments.     56:  524. 
Where  there  are  other  defendants.     56:  52r>_ 
Caused  by  change  of  venue.    56:  525. 
Caused   by   continuance   for   evidence.      5*;: 

526. 
For  want  of  time  to  try.    .OO:  527. 
In  neglecting  to  provide  a  prosecuting  attor 

ney  or  expense  money  for 

court.    56:  528. 
In  failing  to  have  a  jury.    .56:  529. 
In  failing  to  hold  court.     56:  530. 
"Court"  and  "term"  defined.     56:531. 
Where  the  defendant  is  not  in  jail  or  i.s  out 

on  bail.    56:533. 
Where  the  defendant  is  in  the  penitentiar\  .. 

56:  5.34. 
Caused  by  acts  or  condition  of  accused.    5(; : 

535. 
Presumption  that  oelav  is  for  good  causi-. 

.56:  536. 
Demand  as  a  condition  precedent  to  a  dis 

charge.     56:  538. 
Remedy  to  obtain  discliarge.    56:  539. 

By  habeas  corpus  in  another  court.    .5<»  r 

539. 
Where   trial   court   has   refused   to. 

discharge.     56:  539. 
On  original  application.    56:  541. 
Bv  habeas  corpus  in   trial   court.     -It!: 

542. 
By  application  in  tiial  court  under  stat 

ute     directing     discharge  _ 

.56:  543. 
By  other  pleading  or  motions.     56:  .544. 
Effect  of  discharge.    56:  544. 
§  26.  Proof;  presumption;  burden  of  proof- 
Presumptions  with  Respect  to  Criminal  Mat- 
ters,   Generally,    see    Evi- 
dence, XIII.  §  27. 
Presumption    as  to     Sanitv,    see    Evidence 

XIII.  §  14. 
Burden  of  Proof  as  to  Sanity  or  Insanity,^ 

see  Evidence.  XIII.  §  29. 
Ex|K»rt  and  Nonexpert  Evidence  as  to  San- 
itv. see  Evidence,  XIII.  §§^ 

65-68. 
As  to  Conlessit)n«.  see  Evidence,  XIII.  §  75- 
Relevancy   of   Evidence   in   Criminal   Cases, 

Cenerallv.     see     Evidence, 

XIII.  §  87. 
Evidence    of    Other    Crimes,    see    Evidence, 

XIII.  §  88. 
Evidence  as  to  Character  or  Reputation,  see 

Evidence,  XIII.  §  89 


922 


CRIMINAL  LAW,  VI.  (Ed.  Notes.) 


Weight  of  Evidence  in  Criminal  Cases,  Gen- 
erally, see  Evidence,  XijJ.. 
§§  9;i-95. 
As  to  Evidence  with  Respect  to  Handwrit- 
ing,   Generally,    see    Evi- 
dence, XIII.  §§  69-74. 
Inference  of  evil   intent.     11:  811.* 
Presumption    that   party    intended    natural 
consequences  of  acts.     11: 
810.* 
Burden  and  measure   of  proof  as  to   alibi. 

41 :  530. 
Evidence  of  threats  of  accused  or  of  person 
injured  or  killed.     17:  654. 
Incompetency  of  evidence  before  grand  jury. 

28:  318. 
Use  of  documents  before  grand  jury.     28: 

320. 
Admissibility  of  proof  of  trailing  of  person 

oy  bloodhounds.    42:  432. 
Evidence  admissible  in  prosecution  of  car- 
rier  for    transporting    in- 
toxicating     liquors.      46: 
420. 
Admissibility  on  trial  for  murder,  of  testi- 
mony of  accused  at  coro- 
ner's inquest.    70:  33. 
Admissibility  of  coroner's  finding  to  show 

cause  of  death.    68:  285. 
When   evidence  of  drunkenness   admissible. 

8:  33.' 
Sufficiency  of  evidence  to  prove  defendant's 
responsibility   for   sale   of 
intoxicating  liquor  by  his 
servant.    41:  673. 
Tse    of    depositions    and    affida\its    before 

grand  jury.    28:  319. 
Admissibility  of  acts  and  declarations  of  co- 
conspirators.   1:273;*  12: 
197.* 
11  ow  near  main  transaction  must   declara- 
tions be  made  in  order  to 
constitute     part     of    .res 
gestcB.    19:  737. 
Dying  declarations  as  evidence.     56:  353. 
In  prosecution  for  homicide  by  commis- 
sion of,  or  attempt  to  com- 
mie, abortion.     63:  916. 
Effect   of    admission    to    change   burden    of 
proof   and   right    to    open 
and  close  in  criminal  case. 
61 :  562. 
■§  27.  —  Proof  of  corpus  delicti. 
Tn  general.     68:  33. 
What  constitutes.     68:  34. 
In  general.    68:  34. 
Homicide.    68:  35. 
Larceny.    68:  40. 
Arson.'  68:  41. 
Burglary.    68:  41. 
Other  crimes.    68:  41. 
When  proof  of  marriage  necessary.    68: 
42. 
Bigamv.     68:  42. 
Adultery.     68:  44. 
Other  eases.     68:  45. 
Necessity.    68:  45. 

General  rule.     68:45. 
Homicide.     68:  46. 
Larceny.     68:48. 
Other  crimes.     68:  49. 


To  corroborate  confession.    68:  50. 
In  general.     68:  50. 
Homicide.    68:  53.  ' 

Larceny.    68:  54. 
Arson.    68:  55. 
Other  crimes.    68:  55. 
Character  and  sufficiency.    68:  57. 
General  rule.    68:  57. 
Homicide.    68:  57. 

In  general.    68:  57. 
To  corroborate  confession.     68:  64. 
LareenJ^    68:  65, 

In  general.     68:  65. 
To  corroborate  confession.     68:  68. 
Other  crimes.     68 :  69. 
In  general.     68:  69. 
To  corroborate  confession.     68:  71. 
Use  of  confession  in  aid  of  other  evi- 
dence to  establish.    68:  73. 
Necessity  of  direct  or  positive  evidence 

of.     68:  75. 
Evidence  of,  tending  to  connect  accused. 
68:  78. 
Order  of  proof  immaterial.     68:  79. 
Province  of  court  and  jury.    68:  79. 

c.  Sentence  and  imprisonment. 

§  28.  Generally. 

Commitment  of  minors  to  reformatory  with- 
out   conviction    of    crime. 
16:  691. 
Effect  of  conviction  and  sentence  upon  mar- 
riage relation.    31:  515. 
Justification  of  prison  breach.     15:  190. 
Claim  against  state  on  contract  for  prison 

labor.     42:  59. 
Effect   of   absence    from   jail   in   computing 
time      of      imprisonment. 
13:  574.* 
Suspension  of  sentence  for  good  behavior. 

14:  285. 
Conditional  pardons  and  parole  of  prisoner. 

14:  285. 
§  29.  Cruel  and  unusual  punishment. 
Constitutional     and     statutorv     provisions. 

35:561. 
General   principles    governing  punishments, 
35:  561. 
Cruel  and  unusual.     ,35:  561. 
Legislative  control.    35:  562. 
Discretion  of  court.    35:  563. 
Nature  of  punishment.     35:  564. 
Penitentiary.     35:  564. 
Flogging    and    other    corporal    punish- 
ments.   35 : 565. 
Convict  labor.     35 :  .566. 
Hard  labor.     .35 :  566. 
House   of  refuge.     35:  567. 
Imprisonment  for  costs.    ,35:  567. 
Fine  or  imprisonment.    ,35:  567. 
Special  statute.    35:  569. 
Imprisonment  for  life.     .35:  569. 
Disfranchisement    and    forfeiture.     35: 

569. 
Ducking  stool.    35:  569. 
Bread  and  water.     35:  569. 
Punishment  for  particular  crimes.     35:  569. 
Arson  and  burning.     35:  569. 
Assault  and  battery.     .35:  569. 
Bastardy.     35:  570." 
Burglarv.     35:  570. 


CKIMIXAL  LAW,  VI.  (Ed.  Notes.) 


928 


<3arrying  concealed  weapons.    35:  571. 

Common  scold.     .35:  571. 

Conspiracy.    35:  571. 

Counterfeit  coin. .   35:  571. 

Disorderly  houses  and  persons.    35:  571. 

Dueling.     35:  571. 

False  pretenses,  cheats,  and  frauds.  35: 
571. 

Fishery  and  game-law  offenses.    35:  572. 

Fornication.     35:  572. 

Gambling.    35:  572. 

Highway  offenses.     35:  573. 

Horse  stealing.     35:  573. 

Larceny.     35:  573. 

Libel.    35:  573. 

Liquor  laws  offenses.     35:  574. 

Murder  and  manslaughter. •  35:  575. 

Nuisance.     35:  576.  ' 

Profane  language.     35:  576. 

Perjury.    35:  576. 

Rape.    35:  576. 

Receiving  stolen  goods,    bo:  577. 

Robbery.     35:  577. 

Special   statutory  offenses.     35:  577. 

Unlawful   publications.     35:  578. 

Vagrancy.     35:  578. 

Violation  of  ordinances.     35:  578. 
Extent  of  United  States  Constitution.     35: 

578. 
Increased  punishment,   second  offense.     35: 

579. 
§  30.  Effect  of  excessive  sentence. 
Cieneral   rule.     45:  137. 

In  state  courts.     45:  137. 

In  United  States  courts.     45:  138. 
Effect  of  application  for  habeas  corpus.    45: 
139. 

Sentence  void,  prisoner  discharged.  45: 
139. 

Discharged,  proper  sentence  served. 
45:  144. 

Discharge  refused  on  habeas  corpus.  45: 
145. 

Discharge  refused  until  legal  sentence 
served.    45:  148. 

Sentence  corrected  or. modified  and  af- 
firmed.   45:  149. 

Sentence  ordered  modified,  and  case  re- 
manded.   45:  149. 

Proper  sentence  imposed,  and  prisoner 
remanded.    45:  149. 

Execution  stayetl.  bail  for  future  ap- 
pearance.    45:  149. 

Remanded    and    record    corrected.    45: 
150. 
Effect  on  appeal,  or  on  writ  of  error.     45:  150. 

In  general.     45:  1.50. 

Sentence  reversed,  prisoner  discharged. 
45:  151. 

Prisoner  discharged,  legal  sentence 
served.    45:  152. 

Judgment  reversed  in  part  and  affirmed 
in  part.     45:  153. 

Sentence  corrected  or  modified,  and 
judgment  affirmed.  45: 
153. 

Judgment  ordered  modified  and  case  re- 
manded.    45:  154. 

Judgment  reversed,  and  case  remanded. 
45:  156. 

Judgment  reversed,  and  new  sentence 
imposed.    45:  157. 


Judgment     reversed,     and     new     trial 

granted.     45:  157. 
Execution   stayed,   bail   for  future   ap- 
pearance.     45:  158. 
Discharged  upon  suing  out  writ  of  er- 
ror.   45:  158. 
On  certiorari.    45:  158. 

Discharge  refused.     45:  158. 

Judgment  reversed,  and  case  remanded. 

45:  158. 
Prisoner  discharged.    45:159. 
English  decisions.     45:  159. 
§  31.  Enhancing  penalty  when  crime  com- 
mitted by  habitual  criminals  or  prior 
offenders. 
Validity  of  statutes  and  ordinances.     34:  398. 
In*  general.     34:398. 
Ex  post  facto  laws.     34:  399. 
Cruel    and    unusual    punishment,      34: 

400. 
Equal  protection  of  the  laws.     34:  400. 
Second  punishment  or  jeopardy  for  the 
same  offense.     34:  400. 
Con.struction  and  effect  of  statutes.    34:  400. 
In  general.     34:  400. 
Third  and  subsequent  offenses.    34:  401. 
Conditions  as  to  prior  conviction  before 
commission    of    later    of- 
fense.   34:  402. 
Conditions  as  to  execution  of  or  relief 
from  prior  sentence  before 
commission    of    later    of- 
fense.   34:  402. 
Effect  of  pardon  of  prior  offense.     34: 

402. 
Effect  of  appeal  or  writ  of  error  to  re- 
view prior  conviction.    34: 
403. 
Effect  of  prior  conviction  in  other  state 

or  country.    34:  403. 
What  prior  sentence  must  have  been. 

34:  403. 
Similarity  or  identity  of  prior  and  sub- 
sequent offenses.     34:  404. 
Procedure.     34:  404. 

In  general.     34:  404. 

Pleas  and  admissions.    34:  405. 

Order   of   trial:    separating  issues. 

34:  405. 
Proof.     34:  406. 

Attacking  validitv  of  prior  convic- 
tion.   34':  407. 
Verdict  and  judgment.     34:  407. 
Appeal  or  writ  of  error.    34:  408. 
§  32.  Reduction  of  term  for  good  behavior. 
Constitutionalitv      of     statutes      providing 

therefor.     34:  509. 
Construction  and  effect  of  statutes.    34:  510. 
In  giineral.     34:  510. 
Fedeial  cases.    34:  512. 
§  33-  Right  to  compel  prisoner  to  labor. 
The  power .  generally.    27 :  593. 
Constitutional  restriction?.  .  27:.  594.  . 
Necessity  of  express  authority.    27:  595. 
E.\ception  when  labor  is  a  part  of  the  prison 

discipline.     27:  596. 
Construction  of  statutes  conferring  the  pow- 
er generally.    27 :  597. 
Upon  what  courts  conferred.    27:  598. 
For  what  crimes  imposed.     27:  598. 
Place  of  performance.    27:  599. 
The  tei-m  of  duration.    27:  600. 


924 


CRIMINAL  NEWS— CROPS. 


Imposition   for   nonpayment    of   costs.    27: 

€01. 
Necessity  of  strict  compliance.    27:  602. 
Delegation  of  the  power.    27:  603. 
Airing  out  convicts.    27:  604. 
Power  to  hire  out.    27:  604. 
lo  contract.     27:  606. 
Hiring  by  surety.     27:  607. 
Leasing  prisons.    27:  608. 
Assignability  of   contract.     27:  608. 
Custody  and  management   of  convicts. 

27:  609. 
Termination  of  contract.    27:  609. 
Recovery  of  agreed  compensation.     27: 

610. 
Disposition  of  proceeds.     27:  611. 
Effect   of   delay   in   execution   of   sentence. 

27:  611. 
Discharge  because  of  inability  to  pay.     27: 

611. 
Remedy   for   improper  imposition.     27:  612. 


CRIMINAL  NEWS. 


Complaint  for  Selling  Newspaper  Contain- 
ing, see  Indictment,  etc.,  67. 

Prohibiting  Publication  of,  see  Newspaper, 
10. 

Question  for  Jury  as  to,  see  Trial,  506. 


CRIMINATION  OF  SELF. 

Claim  of  Exemption  from  Discovery  on 
Ground  of,  see  Discovery  and  Inspection, 
3. 

As  to  Privilege  of  Witness  against,  see  Wit- 
nesses, II.  c. 

See  also  Criminal  Law,  87,  98-102;  VL  §  20. 


CRITICISM. 


Of  Trial  as  Contempt,  see  Contempt,  22;  V. 
§  1. 

Jurisdiction  of  Equity  to  Prevent,  see  Equi- 
ty, 37. 

As  Libel,  see  Libel  and  Slander,  1.5-18;  TIL 

Of  Public  Officers,  or  Candidates,  Privilege 
in,  see  Libel  and  Slander,  II.  e,  5. 


CROPS. 

Liabilitv  for  Wrongful  Levy  on,  see  Bonds, 
6.5.' 

Mortgage  of,  see  Chattel  Mortgage.  22,  77, 
78.  and  also  infra,  Editorial  Notes,  §  2. 

Right  of  Action  by  lllesal  Lessee  for  Con- 
version of.  see  Conflict  of  Laws,  200. 

Contract  for  Interest  in  Crops  of  Peaches, 
see  Contractus,  373. 

ElFwt  of  I'nexix'cted  Frost  on  Contract  to 
Raise  Cix)p,  see  Contracts,  663. 

Cotenancy  in  Crops,  see  Cotenancy,  8,  9,  18. 
J 9,  and  also  infra,  Editorial  Notes,  §  1. 


Damages  for  Injury  to  or  Destruction  of,. 
see  Damages,  433,  434,  445,  446,  456,  457, 
474^78,  614. 

Right  to,  in  Ejectment,  see  Ejectment,  43, 
44. 

Right  lo,  on  Condemnation,  see  Eminent 
Domain,  292. 

Presumption  from  Judgment  for  Conversion, 
of,  see  Evidence,  746. 

Opinion  Evidence  as  to  Maturity  of,  see  Evi- 
dence, 1435, 

Ownership  of  Grass  in  Highway,  see  High- 
ways, 188,  189. 

Husband's  Right  to,  see  Husband  and  Wife»- 
108. 

Tenant's  Right  to,  see  Landlord  and  Tenant^ 
125,  126,  and  also  infra.  Editorial  Notes,. 
§  L 

Levy  on,  see  Levy  and  Seizure,  23-25,  47,  50,. 
and  also  infra.  Editorial  Notes,  §  1. 

Replevin  for  Strawberry  Plants,  see  Replev- 
in, 15. 

Conversion  by  ilortgagee  of,  see  Trover,  12. 

1.  Unmatured  crops  growing  upon  land 
belonging  to  the  owner  of  tbe  crops  are  part 
and  parcel  of  the  land  for  the  purpose  of 
jurisdiction  of  an  action  for  damages  to 
them.  Bagley  v.  Columbus  S.  R.  Co.  98  Ga. 
626,  25  S.  E.  638,  34:  286 

2.  A  growing  crop,  the  annual  result  of 
agi'icultural  labor,  sown  by  a  husband  on  hi» 
land  pending  a  suit  for  divorce  and  alimony 
brought  by  his  wife,  passes  by  a  decree 
which  gives  the  land  to  the  wife  as  alimony, 
although  such  crop  is  not,  in  terms,  described 
or  referred  to  in  the  decree.  Herron  v.  Her- 
ron,  47  Ohio  St.  544,  25  N.  E.  420,        9:  66T 

3.  One  who,  in  good  faith,  makes  grass  in- 
to hay,  with  the  knowledge  of  and  without 
objection  by  the  owner,  under  a  belief  that 
he  has  a  right  to  do  so,  by  which  its  value- 
is  greatly  increased,  acquires  a  title  to  the 
hay  which  will  sustain  his  action  of  replevin 
therefor,  but  is  liable  for  its  value  at  the 
time  of  the  conversion.  Carpenter  v.  Lin- 
genfelter,  42  Neb.  728,  60  N.  W.  1022, 

32:  422- 
Effect  of  foreclosure. 
See  also  infra.  Editorial  Notes,  §  1. 

4.  A  chattel  mortgage  on  crops  growing- 
upon  mortgaged  land  is  not  a  constructive 
severance  of  them,  which  will  prevent  their 
passing  to  a  purchaser  of  the  land  on  fore- 
closure sale  made  while  the  crops  are  still 
standing.  Jones  v.  Adams,  37  Or.  473,  59 
Pac.   811,  50:  388 

5.  One  who  buys  a  fully  matured  crop 
standing  on  mortgaged  premises  from  the 
mortgagor  before  commencement  of  foreclos- 
ure proceedings,  although  after  default  on 
the  mortgage,  obtains  a  good  title  as  against 
the  receiver  on  foreclosure.  Caldwell  v.  Al- 
sop,  48  Kan.  571,  29  Pac.  1150,  17:  782 

G.  Nursery  trees  and  bushes  raised  for  sale 
on  niortgagetl  premises  cannot  be  taken 
away,  after  title  by  foreclosure  sale  has  been 
perfected,  by  one  who  purchased  them  at  a 
sale  on  execution  issued  upon  a  justice's- 
judgment,  although  he  might  have*  taken 
them  away  before  foreclosure,  without  lia- 
bilitv to  the  mortgagee.  Batterman  v.  Al- 
bright, 122  N.  Y.  484,  25  N.  E.  856,      11:  800> 


CROPS;    CROSS. 


OSS 


7.  A  standing  crop  which  is  fully  matured 
•at  the  time  of  a  sale  in  foreclosure  of  a 
mortgage  on  the  land  belongs  to  the  tenant 
growing  it,  as  against  the  purchaser  at  the 
sale.  Riehards  v.  Knight,  78  Iowa,  69,  42 
N.  W.  584,  4:453 

8.  A  crop  of  wheat  sown  after  judgment 
in  foreclosure,  by  a  tenant  who  i-ented  the 
land  pending  suit  to  foreclose,  and  which 
is  not  ready  to  harvest  until  after  foreclos- 
ure sale  and  sheriff's  deed,  belongs  to  the 
purchaser  at  such  sale  as  against  the  ten- 
ant. Goodwin  v.  Smith,  49  Kan.  351,  31  Pac. 
153,  17:  284 

9.  A  purchaser  of  land  on  foreclosure  is 
entitled  to  wheat  grown  upon  the  premises 
during  the  period  of  redemption^  which,  un- 
der a  contract  between  the  mortgagor  and 
a  third  person  who  farmed  the  land  on 
shares  (title  and  possession  of  all  the  grain 
grown  being  retained  in  the  mortgagor  until 
settlement),  has  been  set  apart  as  the 
amount  due  the  mortgagor  as  rent,  and  may 
pursue  the  same  remedies  to  enforce  his 
right  which  the  mortgagor  has  against  his 
lessee,  under  N.  D.  Rev.  Codes,  §  5549,  pro- 
viding that  a  purchaser  on  foreclosure,  from, 
ihe  time  of  the  sale  until  redemption,  is  en- 
titled to  receive  from  the  tenant  in  posses- 
sion the  renis  of  the  property  sold,  or  the 
value  of  the  use  and  occupation  thereof. 
AVhithed  v.  St.  Anthony  &  D.  Elevator  Co. 
•y  N.  D.  224,  83  N.  W.  238,  50:  254 

10.  Crops  planted  by  one  in  possession  un- 
der a  bond  for  title,  after  he  has  refused  to 
r'omply  with  his  contract  to  purchase,  and 
Ihe  vendor,  having  tendered  a  good  title,  has 
begun  an  action  to  foreclose  the  bond,  be- 
long to  the  vendor.  Sievers  v.  Brown,  34  Or. 
454,  56  Pac.  171,  45:  642 
Of  sale  on  execution. 

11.  Annual  crops  growing  on  the  land  do 
not  pass  to  a  purchaser  at  judicial  sale;  and 
for  the  purpose  of  saving  the  debtor's  rights 
thereto,  these  annual  crops  will  be  regarded 
a^  personalty.  Aldrich  v.  Bank  of  Ohiowa, 
•64  Neb.  276,'89  N.  W.  772,  57:  920 

12.  The  title  to  grass  which  is  severed 
from  realty  after  sale  on  execution,  but  be- 
fore confii-mation,  does  not  pass  to  the  pur- 
chaser of  the  land.  Yeazel  v.  Einspahf,  40 
Ncl).  4.32,  58  X.  W.  1020,  24:  449 
On  death  of  life  tenant. 

See  also   infra.  Kditorial  Notes,  §   1;   Life 
Tenants.  18. 

13.  ihe  right  to  harvest  growing  crops  on 
land  subject  to  a  life  lease  is  preserved  to 
i,he  administrator  of  the  life  tenant,  or  to  a 

lessee  of  tiie  liio  tenant,  by  Ohio  Rev.  Stat. 
§§  602G.  0027.  in  case  of  the  death  of  the 
life  tenant  after  crops  have  been  sown.  No- 
ble V.  Tvler.  01  Ohio  St.  432,  56  N.  E.  191. 

48:  735 

14.  Where  the  lessee  of  a  tenant  for  life 
has  growing  crops  unliarvested  at  the  time 
of  the  latter's  death,  he  is  entitled  to  them. 
Bradlev  v.  Bailev,  56  Conn.  374.  15  Atl.  740. 

1 :  427 

15.  If  a  enant  for  life  dies  before  the  har- 
vest of  crops  sown  during  his  life,  they  be- 
long to  his  executor,  although  at  the  time 


of  sowing  the  crops  the  tenant  did  not  be- 
lieve that  he  should  live  tintil  harvest.  Id. 
16.  The  right  of  an  executor  of  a  tenant 
for  life  to  crops  maturing  after  the  latter's 
death  does  not  depend  upon  the  manner  in 
which  the  crops  were  sown;  the  fact  of  hur- 
ried and  imperfect  sowing  may  be  pertinent 
only  on  the  question  whether  he  was  in 
reality  sowing  crops,  or  only  pretending  to 
do  so.  Id, 

Editorial  Notes. 

§  I.  Generally. 

Growing  crops  as  emblements.     6:  617.* 
Injuries  to,  as  element  of  damages  for  re- 
moval of  fence.    53:  630. 
Contract  for  crops  to  be  raised,  as  a  sale. 

14:  233. 
Levy  upon,  as  personal  property.     23:  258. 
Rights  of  tenant  in  common  to.    9:  625.* 
Right  to  crops  upon  death  of  life  tenant. 

1:  427;*  11:  800.* 
Title  by  accession  to  crops  wrdngfuUy  sev- 
ered.   32:  422. 
Right  of  one  who  buys  or  makes  lawful  en- 
try on  public  land  to  crops 
placed  thereon  by  another. 
70:  799. 
As  between  landlord  and  tenant.     3:  124:* 

11:800.* 
In  case  of  estate  by  entireties.     30:  308. 
Right  to,  on  foreclosure.     4:  453.* 
§  2.  Sale  or  mortgage  of  future  crops. 
How  a.ssignable.    23:  449. 

Sales.    23:  449. 

Statute  of  frauds.    23:450. 

Mortgages.    23:  450. 

Upon  Siile  of  the  land.    23:  451. 
General  doctrine.     23:  452. 
Necessity  and  effect  of  ratification.    23:  453. 
Necessity  and  effect  of  possession.    23:  453. 
Potential  interests.     23:  455. 
Equitable  doctrine.    23:  456. 
Description.     23:  458. 

General  rules.    23:  458. 

Sufficient.     23:  459. 

Insufficient.     23:  460. 
Parol  evidence  to  identify.     23:  461. 
Notice.     23:  402. 

General.    23:  462. 

Constructive.     23:  462. 
Necessity  and  effect  of  recording.    23:  463. 
To  what  crop  or  part  of  crop  it  extends. 

23:  464. 
Title  of  a  mortgagee.    23:  464. 
Effect  of.     23:  465. 

As  against  creditors.    23:  465. 

As  against  purchasers.     23:  465. 

As  between  husband  and  wife.    23:  466. 

Judgment  against.    23:  466. 
Severance  of  the  property.    23:  467. 
Application  of  proceeds.    23:  467. 
To  secure  crop  advances.     23:  467. 
Crops  raised  upon  shares.    23:  468. 
Upon  whom  binding.    23:  4G8. 
Landlord  and  tenant.    23:  468. 
Conversion.     23:  471. 
Special  state  doctrines  and  laws.    23:  472. 


CROSS. 
On  Ballots,  see  Elections,  II.  b. 


926 


CROSS  BILL— CURRENCY, 


CROSS  BILL. 

In  Suit  to  Remove  Cloud  from  Title,  see 
Cloud  on  Title,  IV. 

Jn  suit  to  Dissolve  Corporation,  see  Corpo- 
rations, 783. 

In  Suit  for  Divorce,  see  Divorce  and  Separa- 
tion, 14. 

Burden  of  Proving  Allegations  of,  see  Evi- 
dence, 218. 

Necessary  Parties  to,  see  Parties,  189. 

In  Will  Contest,  see  Wills,  136. 

See  also  Pleading,  IV. 


CROSS  ERRORS. 


Assignment  of,   see  Appeal  and  Error,  IV. 
p.  3. 

-^-—^ 

CROSS-EXAMINATION. 

Of  Witness,  see  Witnesses,  IL  b;  VI.  §  10. 


CROSSING. 


Condemnation  of  Property  for  Crossing  Rail- 
road, see  Eminent  Domain,  54-56,  261- 
264,  267,  339. 

As  Nuisance,  see  Nuisances,  49. 

Railway  Crossings  Generallj^  see  Railroads, 
II.  b. 

Injury  at  Railway  Crossing,  see  Railroads, 
II.  d,  3;  IL  e,  2. 


CROSS  INTERROGATORIES. 

Effect  of  Refusal  to  Answer,  see  Depositions, 
17. 


CROSS  PETITION. 

On  Appeal,  see  Appeal  and  Error,  142. 

«~»^ 

CROSS  TIES. 

Obstruction  of  Highway  by,  see  Highways, 

112. 
Replevin  for,  see  Replevin,  34. 


CRUEL   AND    UNUSUAL   PUNISHMENT. 

As  a  Contempt  of  Court,  see  Contempt,  6. 
See  also  Criminal  Law,  IV.  b;   VI.  §  29. 


CRUELTY. 

To  Animals,  see  Animals.  II. :  Municipal  Cor- 
porations, 201;  Statutes,  2. 


To  Apprentice,  see  Apprentices,  2. 
To  Children,  see  Parent  and  Child,  10. 
As  Ground  for  Divorce,  see  Divorce  and  Sep- 
aration, III.  a. 

A  male  parson  who  has  attained  the  phys- 
ical strength  and  stature  of  manhood,  and 
"who  is  almost  as  large  as  his  father,  but 
not  quite  as  strong,"  is  not  a  "child"  within 
the  meaning  of  Ga.  act,  §  4612h,  which  i» 
aimed  at  the  prevention  of  cruelty  to  chil- 
dren.  Collins  v.  State,  97  Ga.  433,  25  S.  E. 
325,  35:  501 


CULVERT. 

Carrier's   Liability  for  Insufficiency   of,   see 

Carriers,  234. 
In  Railroad  Embankment,  see  Railroads,  II. 

f. 


CUMULATIVE  SENTENCES. 
See  Criminal  Law,  227-230. 

♦»» . 

CUMULATIVE  VOTING. 

See  Elections,  84,  85. 


CURATIVE  LAV/. 


Validating  County  Warrants,  see  Counties, 
57. 

Effect  of,  to  Prevent  Bar  of  Prior  Judgment, 
see  Judgment,  206. 

PoAver  of  Legislature  as  to,  see  Legislature, 
20. 

Sufficiency  of  Title,  see  Statutes,  185,  191. 

Special  Legislation  by,  see  Statutes,  331. 

See  also  Acknowledgment,  IV.;  Constitu- 
tional Law,  I.  b,  2,  b;  III.  §  14. 

Editorial  Notes. 

See  also  Constitutional  Law,  III.  §  14. 
Power  to  cure   unconstitutional  statute  by 
amendment.    60:  564. 


CURATOR  AD  HOC. 

Editorial  Notes. 
Admissions  and  waivers  by.     32:  686,  688. 


CURFEW   LAW. 


Municipal  Authority  to  Pass,  see  MunicipaJ 
Corporations   268,  269. 


CURRENCY. 

Editfirial  Notes. 


Pay)tiont  in  forged  paper  or  base  coin.     It 
199.* 


CURRENT  WAGES— CURTESY. 


927 


Special  contracts  and  obligations  to  make 
payments  in  gold  or  sil- 
ver,    29:512. 


CURRENT  WAGES. 
What  are,  see  Exemptions,  32. 

♦-»♦ 

CURSING. 
Indictment  for,  see  Indictment,  etc.,  83. 

«.»^ ^_ 


CURTAINS. 

For  Saloons,  see  Intoxicating  Liquors,  32- 
35. 


CURTESY. 

Adverse  Possession  of  Estate  by,  see  Ad- 
verse Possession,  28. 

Vested  Eight  to,  see  Constitutional  Law, 
142-144. 

Convevances  in  Fraud  of,  see  Husband  and 
Wife,  165. 

Conclusiveness  of  Judgment  as  to,  see  Judg- 
-     ment,   193. 

Running  of  Limitations  against  Remainder- 
men, see  Limitation  of  Actions,  129. 

1.  Tenancy  by  the  curtesy  initiate  is  done 
away  with  by  the  Virginia  married  woman's 
act.  Alexander  v.  Alexander,  85  Va.  353,  7 
S.  E.  335,  1 :  125 

2.  Upon  the  death  in  1832  of  a  wife  intes- 
tate leaving  surviving  a  husband  and  six 
children  born  of  the  marriage  her  real  prop- 
erty descended  to  and  vested  in  her  children, 
subject  as  the  law  then  stood  to  the  estate 
of  her  surviving  husband  as  tenant  by  the 
curtesy.  Orthwein  v.  Thomas,  127  111.  554, 
21  N.  E.  430,  4:  434 

3.  A  child  is  born  alive,  within  the  mean- 
ing of  the  rule  as  to  curtesy,  when  it  tries 
to  breathe  after  being  fully  delivered  exter- 
nal to  the  mother,  although  it  is  dead  when 
the  navel  cord  is  cut.  GoflF  v.  Anderson,  91 
Ky.  303,  15  S.  W.  866,  11:  825 
In  what. 

See  also  infra,  Editorial  Notes. 

4.  An  estate  by  curtesy  cannot  attach  to 
a  mere  life  estate.  Bigley  v,  Watson,  98 
Tenn.  353,  39  S.  W.  525,  '38:  679 

5.  A  husband  has  no  rights  as  tenant  by 
the  curtesy  in  lands  in  which  his  wife  had 
an  estate  in  remainder,  where  she  died  be- 
fore the  expiration  of  the  life  tenancy,  and 
never  had  a  right  to  the  possession.  Todd 
v.  Oviatt,  58  Conn.  174,  20  Atl.  440,     7:  693 

6.  A  tenancy  by  the  curtesy  initiate  is 
created  in  the  trustee,  where  land  purchased 
by  a  husband  is  conveyed  to  him  for  the  use 
and  benefit  of  his  wife,  with  nothing  to  in- 
dicate a  purpose  to  exol'ide  him  from  a  risrht 
by  the  curtesv.  Meacham  v,  Buntine,  156 
111.  586,  41  N.  E.  175,  28:618 


7.  Executors,  by  paying  taxes  and  selling 
a  portion  of  the  estate  in  coal,  which  is  re- 
served from  the  sale  of  the  surface  of  the 
ground,  but  who  are  not  in  the  actual  oc- 
cupancy or  possession  of  the  property,  and 
have  no  interest  therein  except  a  simple 
power  of  sale,  are  in  no  such  possession  as 
to  prevent  a  seisin  of  the  owner  sufHcient  to 
support  a  claim  of  curtesy  by  her  husband 
after  her  death.  Rankin's  Appeal,  1  Mona- 
ghan  (Pa.)   308,  16  Atl.  82,  2:  429 

8.  A  deed  to  a  married  woman  "to  her 
sole  and  separate  use,  and  free  from  the 
interference  or  control  of  her  said  husband, 
or  any  husband,  and  her  heirs  and  assigns, 
to  her  and  their  only  proper  use  and  benefit 
forever,"  must  be  held  to  defeat  a  right  to 
curtesy  in  the  premises  on  the  grantee's 
death,  where,  by  the  statutes  of  the  state,  a 
married  woman  could  hold  real  estate  as  if 
unmarried,  as  the  restriction  in  the  grant 
can  have  no  force  whatever  given  to  it  un- 
less the  intention  was  to  exclude  the  estate 
by  the  curtesy.  Haight  v.  Hall,  74  Wis.  152, 
42  N.  W.  109,  3:  857 

9.  A  fee-simple  estate  is  vested  in  a 
woman  by  a  deed  to  her  and  her  body  heirs, 
in  which  her  husband  is  entitled  to  curtesy, 
although  the  grant  is  expressly  made  free 
from  his  debts  and  liabilities.  Bingham  v. 
Weller,  113  Tenn.  70,  81  S.  W.  843,     69:  370 

.  10.  A  man  is  deprived  of  his  curtesy  in- 
terest in  land  by  conveying  it  to  his  wife  to 
her  sole,  separate,  and  exclusive  use,  free 
and  discharged  from  all  his  control  and  lia- 
bilities. Id. 
What  will  defeat. 
See  also  infra.  Editorial  Notes. 

11.  A  divorce  obtained  by  a  man  for  the 
fault  of  his  wife  will  defeat  his  right  of 
curtesy  in  her  property.  Doyle  v.  Rolwing, 
165  Mo.  231,  65  S.  W.  315,  55:  332 

12.  All  inchoate  interest  as  tenant  by  the 
curtesy  is  destroyed  by  an  absolute  divorce, 
unless  it  is  preserved  by  statute.  Burgess 
V.  Muldoon,  18  R.  L  607,  29  Atl.  298,    24:  798 

13.  A  divorce  obtained  by  a  husband  from 
his  wife  does  not  defeat  his  tenancy  by  the 
curtesy  initiate,  where  the  statute  has  made 
no  provision  for  such  a  case,  but  has  de- 
clared that  a  divorce  obtained  for  his  fault 
and  misconduct  shall  defeat  a  husband's 
right  as  tenant  by  the  curtesy.  Meacham  v. 
Bunting,  156  111.  586,  41  N.  E.  175,      28:  618 

14.  A  tenancy  by  the  curtesy  is  not  de- 
feated by  a  will  giving  the  husband  of  the 
testatrix  a  life  estate  in  the  premises,  with 
the  privilege  of  using  so  much  of  the  es- 
tate as  may  be  necessary  to  his  support, — 
at  least  where  he  has  not  indicated  a  pur- 
pose to  claim  under  the  will,  although  he  has 
acted  as  executor  and  as  such  has  settled 
the  estate.  Sill  v.  White,  62  Conn.  430,  26 
Atl.  396,  20:  321 
Rights  of  tenant  by  curtesy, 

15.  A  tenant  by  curtesy,  in  an  estate 
which  consists  of  coal  mines  and  mining 
privileges  has  the  right  to  work  open  mines 
even  to  exhaustion,  althoucrh  he  is  not  ten- 
ant of  the  surface.  Rankin's  Appeal,  1  Mon- 
aghan  (Pa.)  308,  16  Atl.  82,  2:  429 


■9iS 


CURTESY  (Ed.  Notes)— CUSTOM. 


Editorial  Notes. 


Tenancy  by  the  curtesy,  generally.    7:  693;* 
11:  825.' 
Effect  of  statute  upon  husband's  right. 

7:  693.* 
To  what  estate  attaches.     11:  826.* 
Necessity    of    seisin   during   coverture; 
rule  at  common  law.     7: 
694;*  11:  826.* 
Qualification  of  the  rule.     7:694.* 
Entry  on  land.    7:  694.*^ 
Right  of   curtesy   vested   in   remainder 

or  life  estate.    7:  695.* 
When     estate     becomes     initiate.     11: 

826.* 
When  estate  bv  the  curtesy  fails.     7: 

695.* 
Effect  of  husband's  wrongful  act  to  for- 
feit curtesy.    7 :  695.* 
Liability  for  husband's  debts.     7:  696.* 
Disposal  of  estate  by  wife.    7:  696.* 
Power  of  legislature  to  destroy.     19:  256. 
Right  of  tenant  by  the  curtesy  in  partner- 
ship real  estate.    27:  340. 
Husband's  right  of  curtesy  in  property  con- 
veved  bv  him  to  his  wife. 
69^:  375.  * 
Effect   of  tax  sale  of  land   held  by  tenant 

by  curtesy.    32:  808. 
Levy  on  estate  by.     23:  648. 
Duty  of  tenant  by,  to  pay  taxes.    32:  748. 


CUSTODIA  LEGIS. 

See  Custodv  of  Law. 


CUSTODY. 

Ot  Corpse,  see  Corpse,  II.  b. 
Of   Children,    see    Divorce    and    Separation, 
VIL;  Infants.  L  c. 


CUSTODY  OF  LAW. 


Interference  with,  by  Other  Court,  see 
Courts,  IV.  c. 

narnishment  of  Property  in.  see  Garnish- 
ment. I.  c,  2. 

Lew  on  Propertv  in,  st-e  Lew  and  Seizure, 
Lb. 

f)f  Money  in  Court,  see  IMoney  in  Court. 

Custody  of   Receiver,    see   Receivers.    5(i. 

Koplcvin  for  Property  in,  see  Replevin,  L  b. 

Editorial  Notes. 

Rule  that  property  in  custody  of  law  is 
not  subject  to  •  seizure. 
10:  r)-2!).*' 

fiarnishnient  of  property  in  custody  of  law. 
12:  508.* 

Injunction  against  execution  sale  of  prop- 
erty in.     30:  103. 

iJoplcvin  for  nropertv  in  legal  custodv.  13: 
408.* 


Equitable  remedy   to   subject   property  in, 
^  to  judgment  after  returm 

of     no     property     found. 

63:  673. 
Maritime  lien  on  vessel  in  custody  of  law. 

70:  391. 


CUSTOM. 

Of  Stock  Brokers,  see  Brokers,  5. 

Of  Carrier,  see  Carriers,  36,  458, '459,  468, 
486,  539,  600,  601,  711-714,796,  815,  831- 
834,  846,  856,  911,  929,  986;  Evidence, 
2034;  Quo  Warranto,  8;  and  also  infra, 
Editorial  Notes. 

Of  Law  School  as  to  Graduation,  see  Col- 
leges, 7. 

Of  Courts  to  Sit  at  County  Seats,  see 
Courts,  315. 

Of  Commission  Merchants,  see  Factors,  4,  8. 

Of  Church  as  to  Pews,  see  Pews,  4. 

Of  Port,  see  Shipping,  12. 

As  Affecting  Charitable  Gift,  see  Charities, 
21. 

Common  Error  as  Law,  see  Common  Error. 

Effect  of  Construction,  see  Constitutional 
Law,  56. 

Usage  in  Construction  of  Constitution,  see 
Constitutional  Law,  I.  a,  3. 

As  Basis  of  Easement,  see  Easements,  25. 

Judicial  Notice  as  to,  see  Evidence,  135-140. 

Burden  of  Proof  as  to,  see  Evidence,  750, 

Evidence  of.  Generally,  see  Evidence,  XI.  b. 

Parol  Evidence  of,  see  Evidence,  VI.  b. 

Effect  of,  on  Parol  Evidence  as  to  Writing, 
see  Evidence,  1071;  and  also  infra,  Ed- 
itorial Notes. 

Sufficiency  of  Proof  of,  see  Evidence,  2350, 
2351. 

To  Search  Prisoners,  Evidence  as  to,  see 
Evidence,  2188. 

Necessity  of  Pleading,  see  Pleading,  90;  and 
also  infra.  Editorial  Notes. 

Effect  of  Long  Continued  Custom,  see  Stat- 
utes, 020. 

Question  for  Jury  as  to,  see  Trial,  522,  523. 

As  to  Appropriation  of  Ice,  see  Ice,  19. 

As  to  Interest  on  Advances  by  Partner,  see 
Interest,  25,  26. 

As  to  Discharge  of  Employee,  see  Master 
and  Servant,  35. 

As  to  Who  Shall  Furnish  Scaffolding,  see 
Master  and  Servant,  316. 

As  to  Removal  of  (Joods  on  Payment  of 
Freight  Charges,  see  Sale.  156. 

As  to  Withdrawal  of  Bill,  see  Statutes,  21. 

As  to  Tax  Roll,  see  Taxes,  378. 

As  to  Use  of  Standard  Time,  see  Time,  2. 

As  to  I'se  of  Water  of  Running  Stream,  s?<*e 
Waters.  220,  222. 

As  to  Prior  Aiipropriation  of  Water,  see 
Waters,  317-319,  329. 

1.  No  usage  is  good  which  conflicts  with 
an  established  principle  of  law.  East  Bir- 
mingham Land  Co.  v.  Dennis,  85  Ala.  565, 
5    So.    317,  2:  836 

2.  A  usage  which  is  not  according  to  lav/, 
though  universal,  cannot  be  set  up  to  control 
the  law.  Columbus  &  H.  Coal  &  I.  Co.  v. 
Tucker,  48  Ohio  St.  41,  26  N.  E.  630,    12:  577 


CUSTOM. 


939 


3.  In  all  contracts  as  to  the  subject-mat- 
ter of  which  known  usages  prevail,  the  par- 
ties proceed  on  the  tacit  assumption  of  such 
usages,  but  commonly  reduce  into  writing 
the  particulars  of  their  agreement,  omitting 
to  specify  those  known  usages  which  are 
included  as  of  course  by  mutual  understand- 
ing. MacCulskv  v.  Klosterman,  20  Or.  108, 
25  Pac.  366,       '  10:  785 

4.  A  usage  to  be  good  and  one  of  whieii 
the  courts  will  take  judicial  notice  must  be 
general  and  of  such  long  standing  as  to  have 
become  a  part  of  the  law  itself.  City  Elec- 
tric Street  R.  Co.  v.  First  Nat.  Exeh.  Bank, 
62  Ark.  33,  34  S.  W.  89,  31:  535 

5.  A  usage  to  affect  a  contract  must  be 
so  general  and  well  established  that  knowl- 
edge and  adoption  of  it  may  be  presumed; 
and  it  must  be  certain  and  unifcfrm.  Balti- 
more Base  Ball  &  E.  Co.  v.  Pickett,  78  Md. 
375,  28  Atl.  279,  22:  690 

6.  A  usage  or  custom,  to  be  binding,  must 
be  so  uniform,  long  established,  and  general- 
ly acquiesced  in,  and  so  well  known,  as  to 
induce  the  belief  that  parties  contracted 
with  reference  to  it  if  nothing  was  said  to 
the  contrary,  and  that  the  failure  to  con- 
form to  it  would  be  an  exception.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  V.  Jenkins,  174 
111.  398,  51  N.  E.  811,  62:  922 

7.  A  custom  or  usage,  to  be  available 
against  a  part}'  to  a  contract,  must  be  so 
notorious  as  to  affect  him  with  knowledge 
of  it,  and  raise  the  presumption  tliat  he 
dealt  with  reference  to  it,  or  he  must  be 
shown  to  have  had  actual  knowledge  of  it. 
Blake  v.  Stump,  73  Md.  160,  20  Atl.  788. 

10:103 
As  to  warning  of  school  meeting. 

8.  Usage  cannot  excuse  failure  of  the 
warning  of  a  school -district  meeting  to  spec- 
ify the  business  or  question  to  be  considered, 
as  required  by  Vt.  R.  L.  1880,  §  521.  Scott 
V.  School  District  No.  9.  67  Vt.  150,  31  Atl. 
145,  27:  588 
As  to  right  to  fish. 

9.  Custom  cannot  give  a  public  right  to 
fish  in  a  pond  on  private  land  because  a 
common-law  custom,  as  distinguished  from  a 
usage  of  trade,  must  be  immemorial,  and  in 
New  Jersey  is  therefore  impossible,  because 
a  custom  laid  in  the  public  is  bad  for  imi- 
versality  and  because  a  right  to  take  profit 
from  the  land  of  another  cannot  be  acquired 
by  custom.  Albright  v.  Cortright  (N.  J. 
Err.  &  App.)   64  N.  J.  L.  330,  45  Atl.  634, 

48:  616 

As  to  negligence. 

To  Ride  Bicycle  on   Sidewalk,   Availability 
as  Defense,  see  Bicycles,  8. 

As   to   Passengers  Being  on   Platform,   see 
Carriers,  36. 

In  Permitting  Children  to  Ride  on  Engine  on 
Trains,  see  Carriers.  458,  459. 

As  to  Assisting  Women  Passengers,  see  Car- 
riers, 468:   Evidence,  2034. 

To  Throw  Mail  Bags  from  Car.  see  Carriers, 
539. 

To    Suspend    Husiiicss   During  Holiday,   see 
Carriers.  831-8.34. 

As  to  Transportation  of  Live  Stock,  see  Car- 
riers, 846.  So6. 
L.R.A.  Diir.— 59. 


As  to  Taking  Cars  from  Connecting  Car- 
riers without  Changing  Goods,  see  Car- 
riers, 986. 

As  to  Mode  of  Delivering  Freight,  see  Quo 
Warranto,  8. 

As  to  Coupling  Cars,  see  Master  and  Ser>'- 
ant,  201. 

To  Store  Street  Cars  in  Street,  see  Master 
and  Servant,  75;   Notice,  59. 

As  to  Kicking  Cars,  see  Master  and  Servant, 
309. 

See  also  Master  and  Servant,  610;  infra, 
Editorial  Notes. 

10.  A  custom  of  others  to  be  equally  negli- 
gent is  no  defense  to  one  charged  with  negli- 
gence. Columbus  &  H.  Coal  &  I.  Co.  v. 
Tucker,  48  Ohio  St.  41,  26  N.  E.  630,    12:  577 

11.  The  custom  of  a  class  of  persons  to 
ride  upon  a  pilot  of  an  engine  cannot  pre- 
vent such  an  act  from  being  regarded  as  neg- 
ligence. Warden  v.  Louisville  &  N.  R.  Co. 
94  Ala.  277,  10  So.  276,  14:  562 

12.  The  custom  of  people  to  crawl  unuer 
a  train  blockading  a  highway  crosanng  can- 
nt»t  aflTect  the  question  of  negligence  in  so 
doing.  Rumpel  v.  Oregon  Short  Line  &  U. 
X.  R.  Co.  4  Id.  13,  35  Pac.  700,  22:  725 

13.  A  general  custom  and  usage  as  to 
placing  railings  or  barriers  along  a  highway 
embankment  is  of  no  importance  in  deter- 
mining t'he  liability  of  a  town  for  failure 
to  provide  such  barriers  at  a  dangerous 
place,  where  the  statute  imposes  an  absolute 
liabilitv  to  make  highways  safe  for  travel. 
IVIollov  V.  Walker  Twp.  77  Mich.  448,  43  N. 
W.   1012,  6:  695 

14.  Custom  cannot  excuse  a  failure  to 
make  a  scaflfold  or  other  safeguard  on  the 
side  of  a  brick  wall  which  is  being  built 
within  a  few  feet  of  the  entrance  of  a 
schoolhouse  then  in  use.  Mayer  v.  Thomp 
son-Hutchison  Bldg.  Co.  104  Ala.  611,  16 
So.  620,  28 :  433 
Of  benefit  association. 

15.  A  usage  of  a  mutual  benefit  associa 
lion,  constituting  a  part  of  the  contract  with 
e«di  of  its  members,  that  masonic  questions 
shall  be  decided  by  masonic  tribunals,  with 
respect  to  wheth«r  the  members  are  ma.sons 
or  not,  as  required  by  the  by-laws  of  the 
a.ssociation,  is  as  conclusive  on  the  associa 
tion  as  though  it  provided  in  terms  that  the 
question  of  being  or  continuing  to  lie  a 
mason  in  good  standing  should  be  decided  by 
the  masonic  officers.  Connellv  v.  Masonic 
Mut.  Ben.  Asso.  58  Conn.  552.  20  Atl.  671. 

9:  42S 
Of  insurance. 

As  to  Employment  of  Clerk  by  Agents,  see 
Evidence'.  2170. 

16.  There  is  no  presumption  of  knowl- 
edge, on  the  part  of  an  insurance  company 
doing  a  general  business  throughout  the 
United  States,  of  a  custom  or  usage  as  to 
w%at  constitutes  a  "building"  or  "risk." 
which  is  peculiar  to  a  city  in  a  state  foreign 
to  its  domicil.  so  as  to  make  the  custom  an 
element  of  its  contracts  relating  to  proper 
ty  in  stich  city,  without  proof  that  it  had 
siicli  knowledge.  Ccrman  American  Ins.  Co. 
v.  Commercial  F.  Ins.  Co.  95  Ala.  469, 
11  So.  117,  Jfi:  2^1 


980 


CUSTOM. 


As  to  usury. 

17.  If  a  contract  is  usurious,  no  custom 
can  legalize  it.  Harmon  v.  Lehman,  85  Ala. 
379,  5  So.  197,  2:  589 
Of  banks. 

As  to  Collectdon  of  Commercial  Paper,  see 
Banks,  205,  219-221,  228,   233,  263. 

To  Require  Identification  of  Person  Present- 
ing Check,  see  Checks,  44. 

As  to  Taking  Bill  of  Lading  as  Security, 
see  Factors,  4. 

Judicial  Notice  of,  see  Evidence,  135. 

Parol  Evidence  as  to,  see  Evidence,  1092. 

See  also  infra,  Editorial  Notes. 

18.  A  custom  among  the  banks  of  a  cer- 
tain place  to  pay  notes  made  by  a  depositor 
payable  at  a  bank  out  of  his  deposit,  with- 
out instructions,  in  order  to  be  binding  must 
be  certain  and  uniform,  and  there  must  be 
a  reasonable  ground  to  suppose  that  it  was 
known  to  both  parties  to  the  contract.  Gris- 
som  V.  Commercial  Nat.  Bank,  87  Tenn.  350, 
10  S.  W.  774,  3:  273 
Of  real  estate  agents. 

See  also  infra,  25;  and  Editorial  Notes. 

19.  A  usage  or  custom  of  real  estate 
agents  in  a  certain  city  to  get  up  syndicates 
to  buy  property  in  their  hands  for  sale  will 
not  bind  members  of  a  syndicate  who  have 
no  knowledge  thereof,  especially  if  they  live 
at  other  places,  so  as  to  sustain  a  purchase 

.  of  property  for  the  syndicate  made  by  such 
agents  who  are  -also  acting  as  secret  agents 
of  the  vendor.  Ferguson  v.  Gooch,  94  Va. 
1,  26S.  E.  397,  40:234 

Of  baseball  players. 

20.  A  usage  or  custom  of  baseball  clubs 
to  discharge  a  player  on  ten  days'  natice,  if 
he  is  deficient  in  playing,  cannot  modify  a 
special  contract  for  a  definite  time, — espe- 
cially when  the  player  has  no  reciprocal 
right  to  cancel  the  contract.  Baltimore  Base 
Ball  &  E.  Co.  V.  Pickett,  78  Md.  375,  28 
Atl.  279,  22:690 
Of  carpet  makers. 

21.  A  custom  or  usage  of  carpet  making, 
which  would  give  the  color  mixer  an  e:f- 
(•lusive  title,  as  against  his  employer,  to  the 
various  combinations  and  shades  of  color  de- 
vised by  him  for  use  in  the  manufacture  of 
carpets  in  his  employer's  mill,  is  unreason- 
able and  cannot  be  sustained.  Dempsey  v. 
Dobson,  184  Pa.  588,  39  Atl.  493.  40:  550 
Of  traders. 

Parol   Evidence   as   to,  see   Evidence.    1087, 

1089,  1090. 
See  also  infra.  Editorial  Notes. 

22.  A  known  usage  of  trade  forms  a  part 
of  a  contract  made  in  that  trade.  Union 
Ins.  Co.  v.  American  F.  Ins.  Co.  107  Cal.  327, 
40  Pac.  431,  28:  692 

23.  When  one  employs  another  to  deal  in 
a  particular  market,  he  will  be  held  to  in- 
tend that  the  mode  of  performance  should 
be  in  accordance  with  the  established  cus- 
toms and  usages  of  the  market,  so  long  as 
the  custom  or  usage  is  neither  immoral, 
unlawful,  unreasonable,  contrary  to  the  ex- 
press agreement  of  the  parties,  nor  such  as 
to  change  the  intrinsic  character  of  the  un- 
dertaking. Skiff  v.  Stoddard.  63  Conn.  198. 
26  Atl.  874,  21:  102 


24.  A  local  custom  of  dealers  in  a  place 
where  a  sale  is  made,  whicih  violates  a  well- 
established  principle  of  law,  and  changes  the 
nature  and  obligations  of  the  relation  of  two 
parties  to  each  other,  is  inoperative  unless 
known  and  assented  to  by  both.  Geyser- 
Marion  Gold  Min.  Co.  v.  Stark,  45  C.  C.  A. 
467,  106  Fed.  558,  53:  684 

25.  The  fact  that  a  person  engaged  in 
buying  and  selling  real  estate  at  times 
dealt  through  the  agency  of  brokers  is  not 
sufficient  of  itself  to  affect  him  with  knowl- 
edge of  a  peculiar  custom  among  them  as 
to  when  their  commission  should  be  con- 
sidered as  earned.  Blake  v.  Stump,  73  Md. 
160,  20  Atl.  788,  10:  103 

26.  A  custom  of  trade  known  to  a  person 
having  diamonds  in  his  possession,  limiting 
his  power  to  sell  them,  is  binding  on  a  pur- 
chaser from  him,  whether  he  has  knowledge 
of  the  custom  or  not.  Smith  v.  Clews,  114 
N.  Y.  190,  21  N.  E.  160,  4:  392 

27.  A  custom  of  trade  in  the  city  oi  Au- 
gusta, Georgia,  by  which,  contrary  to  the 
general  law  of  the  state,  acceptance  of  com 
in  bulk  and  paying  for  it  after  inspection 
are  considered  as  waiving  or  releasing  all 
claim  upon  the  seller  to  answer  for  any  de- 
fects of  quality,  is  not  binding  except  upon 
those  who  have  recognized  it  in  their  own 
transactions,  and  tiius  adopted  it  for  their 
own  dealings.  Miller  v.  Moore,  83  Ga.  684, 
10  S.  E.  360,  6:  374 

28.  A  verdict  against  a  tobacco  sampler 
for  the  amount  of  loss  resulting  to  a 
buyer  because  the  tobacco  in  the  eases  was 
not  as  represented  by  the  sample  tags  is 
supported  by  evidence  that  by  usage  of 
trade  he  undertook  to  make  good  such  loss, 
and  that  he  had  promised  to  make  it  good 
after  having  been  notified  of  it,  and  had 
paid  other  losses  resulting  from  the  same 
cause,  although  there  was  no  privity  of  con- 
tract between  him  and  the  person  injured. 
Conestoga  Cigar  Co.  v.  Pinke.  144  Pa.  159, 
22  Atl.  868,  13:  438 

Editorial  Notes. 

As  part  of  contract;  usage  of  trade  to  aid 
interpretation.  3:  860;* 
4:  392;*    10:  785.* 

Admissibility  of  evidence  of,  to  vary  writ- 
ten contract.    13:  4i0.* 

Effect  on  legal  right.     2:  87.* 

Validity  of.     10:  366.* 

Admissibility  of  evidence  of,  on  question 
of  negligence.     10:  366.* 

As  affecting  carrier's  liabdlity.     2:  76.* 

As  affecting  liability  of  baggage  transfer 
company.    34:  140. 

As  to  delivery  of  goods  by  carrier.     1:  661.* 

As  law:  conflict  with  rules  of  law;  reason- 
ableness of ;  knowledge 
of;  to  affect  express  con- 
tract.    13:  438.* 

Banking  customs.     21 :  440. 

Usages  and  customs  with  respect  to  bank 
collections.  2:699;*  7: 
855.* 

Effect  of  clearing-house  rules  and  customs. 
25:  830. 

As  to  prior  appropriation.     30:  669. 


(JUSTOMS  DUTIES— DAMAGES. 


As  to  receipt  of  double  commissions  by 
real  estate  broker.    45:  48. 

As  affecting  performance  of  real  estate 
broker's  contract.     44:600. 

Habitual  practice  of  employee  as  substitute 
for  rule.    43:  316. 

As  affecting  duty  of  master  to  promulgate 
rules.    43:  311. 

Question  relating  to,  as  Federal  question. 
62:  538. 

Necessity  of  specially  pleading  local  usage 
and  custom.    2:  709.* 

How  proved.     13:  440.* 

Custom  as  a  defense  to  action  of  prosecu- 
tion for  cutting  timber  on 
public  lands.    70:  878. 


CUSTOMS  DUTIES. 


See  Duties. 


CUTS. 

Injury  to  Adjoining  Land  by,  see  Highways, 
206. 


CUT  STONE. 
As  Fixture,  see  Fixtures,  42. 


CYCLONES. 


Insurance  against   Loss  by,  see  Insurance, 

968. 
Use  of  Public  Funds  to  Pay  Debts  Resulting 

from,  see  Public  Moneys,  16. 


CY  PRES. 
Doctrine  of,  see  Charities,  XL  b. 


D 


DAIRIES. 

Special  Privilege  as  to,  see  CoBstitutional 
Law,  467. 

Validity  of  Ordinance  Prohibiting,  see  Con- 
stitutional Law,  682. 

Police  Power  as  to  Imitation  of  Products, 
of,  see  Constitutional  Law,  1068-1071. 

Municipal  Regulation  of,  see  Municipal  Cor- 
porations, 128,  218. 

Editorial  Notes. 

Municipal   power  over,   as    nuisances.     38: 
667. 


DAMAGES. 


I.  General  Principles;  Nommal  Damages; 
Preventing  Unnecessary  Amoimt. 
*n.  Exemplary  or  Punitive. 

a.  In  General. 

b.  For  act  of  Servant;  Carrier's  Lia- 

bility. 
m.  Measure  of  Compensation, 
a.  On  Contracts. 

1.  Generally. 

2.  On  Bonds. 

3.  As  to  Real  Property. 

4.  Sales  of  Personalty:  Warran- 

ty. 

o.  Seller's  Failure  to  Deliv- 
er. 

6.  Buyer's  Failure  to  Com- 
plete Purchase. 

V.  Breach  of  Warranty. 

5.  Of  Employment. 


III.  a — continued. 

6.  To  Advance  Money;  Nonpay- 

ment of  Checks. 

7.  Liquidated  Damages. 

b.  For  Telegrams. 

c.  Expulsion  of,  or  Failure  in  Duty  to, 

Passenger. 
.  1.  In  General. 
2.  Ejection. 

d.  In  Respect  to  Freight. 

e.  Torts  Generally;  Breach  of  Prom- 

ise. 

f.  Fraud. 

g.  Assault;  False  Imprisonment;  Ma- 

licious   Prosecution;     Abuse    of 

Process, 
h.  Libel  or  Slander. 
i.  Personal  Injuries;  Death. 

1.  In  General. 

2.  Injuries  to  Married  Women. 

3.  Death. 

4.  Instances  of  Amount. 

a.  In  General. 

6.  Death, 
j.  Injury;     Taking    or    Detention    of 

Personal  Property, 
k.  Injury  to  Real  Property;  Nuisance. 

1.  In  General. 

2.  Injury   to,   or   Destruction   of. 

Buildings  or  Trees. 

3.  Injury  to  Water  Rights ;  Over- 

flows. 

4.  Nuisances. 

L  Condemnation    or    Depreciation    in 
\'alue  by  Eminent  Domain. 

1.  In   General. 

2.  Value:  Estimate  of. 

a.  Fn  General. 

6.  Value  for  Special  Use. 

3.  Consequential    Injuries. 


US2 


DAMAGES,   I. 


HI.  1— continued. 

4.  As  to  Abutting  Owners. 

a.  Railroads  in  Street. 

b.  Elevated  Railroads. 

5.  In  Highway  Cases. 

6.  Advantages;  Offsets. 

a.  In  General. 

6.  Special  Benefits, 
m.  In  Injunction  Cases. 
n.  In  Trademark  and  Patent  Cases, 
o.  Mental  Anguish. 

1.  Accompanying    Physical    Suf- 

fering. 

2.  Unaccompanied     by     Physical 

Injury. 

a.  In  General. 

b.  From  Delay  in  Delivering 

Telegram   or  Transmit- 
ting Money. 

c.  Failure  of   Duty   to   Pas- 

senger. 
p.  Loss  ol  Profits. 

1.  In  General. 

2.  From  Breach  of  (Jontrat-t. 

q.  Time      for     \^Tiich      Recoverable; 

Prospeetiv<". 
r.  Counsel  Fees, 
s.  Mitij>:ation;  Keduction. 
t.  Aggravation, 
u.  Apportionment. 
L\  .  Assessment:  Treble  Damages. 
V.  Kditorial  Notes. 

Review  ot.  ou  Appeal,  see  Appeal  and  Error, 

Vll.  1,  2,  b. 
Prejudieial  Error  as  to  Measure  of.  see  Ap- 

■  peal  and  Error,  1167-1170. 
First  Attacking  Remoteness  of,  on  Appeal, 

see  Appeal  and  Error,  606. 
Opinion  Evidence  as  to.  see  Evidence,  VII.  f. 
Relevanev  of  Evidence  as  to.  see  Evidence, 

XT.  g. 
Adinissibilitv     of    Evidence    as    to,    Under 

I'leading.  see  Evidence.  2036-2048. 
Interest  as.  see  Interest,  I.  c:  and  also  infra, 

V.  S  28. 
On  Amount  Recovered  as,  see  Interest.  1.  c: 

and  also  infra,  V.  §§  17,  28. 
New  Trial  for  Insufliciencj-  or  Excessiveness 

of.  see  New  Trial,  18-20. 
Allegations  as  to,  see  Pleading,  II.  f. 
Question  for  Jury  as  to,  see  Trial,  105. 
Instructions   as    to.   see   Appeal   and   Error, 

\T[.   m.  4.  n.    (3):    Trial,  fi.56-670.   738, 

701-783. 


1.  General     Principles:     Nominal    Damages; 
Preventing  Unnecessary  Amount. 

1.  Compensatory  damages  cannot  include 
an  allowance  for  "inconvenience"  as  well  as 
injuries.  .Tenson  v.  Chicago.  St.  P.  M.  &  O. 
K.  Co.  86  Wis.  589.  57  N.  W.  359.       22:  680 

2.  Damages  which  are  the  legal  and  nat- 
ural result  of  the  act  done,  though  to  some 
I'xtenl  contingent,  are  not  too  remote  to  be 
recovered.  Tavlor  .\lfg.  Co.  v.  Watcher.  39 
Fed.  44(1,  3:  587 

3.  (Jcnerai  <lania<ie<  are  ^ncli  as  the  jury 
may  give  when  the  judge  cannot  point  out 
aiiv  measure  bv  \\lii(li  thev  are  to  ue  ascer- 


tained except  the  opinion  and  judgment  of 
a  reasonable  man.  Special  damages  are  such 
as  by  competent  evidence  are  directly  trace 
able  to  a  failure  to  discharge  a  contract 
obligation  or  duty  imposed  by  law.  Bank  of 
Commerce  v.  Goos.  39  Neb. '437,  58  N.  W. 
84,  23:  190 

Effect  of  prior  recovery. 

4.  Including  in  damages  for  condemnation 
an  allowance  for  the  danger  of  fire  by  oper- 
ation of  a  railroad  will  not  prevent  the  own- 
er of  property  from  recovering  for  its  loss 
by  subsequent  fire  communicated  from  the 
railroad  locomotives,  as  the  original  dam 
ages  were  compensation  for  the  depreciation 
to  the  value  of  the  property.  Matthews  v. 
St.  Louis  &  S.  F.  R.  Co.  121  Mo.  298,  24 
S.  W.  591,  25:  161 
Aff'd  by  the  Supreme  Court  of  the  United 
States  'in  165  U.  S.  1,  41  L.  ed.  611.  17  Sup. 
Ct.  Rep.  243. 

Nominal  damages. 

Reversal  for  Failure  to  Allow,  see  Appeal 
and  Error,  1167. 

Submission  to  Jurv  of  Question  as  to.  see 
Trial,  72.  ' 

For  Breach  of  Indefinite  Contract,  see  Con- 
tracts, 102. 

See  also  infra,  93,  139,  161,  165,  171.  207.  .338, 
350,  382,  406,  460,  507,  522. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

5.  Some  proof  of  the  amount  of  damages 
is  necessary  in  order  to  recover  anything 
more  than  nominal  damages  for  an  action- 
able wrong.  Watts  v.  Norfolk  &  W.  R.  Co. 
39  W.  Va.  196,  19  S.  E.  521,  23:  674 

6-  Only  nominal  damages  can  be  recovered 
for  a  tortious  invasion  of  one's  property 
rights,  where  there  is  no  evidence  of  the 
extent  of  the  loss  thereby  inflicted  upon  the 
injured  part  v.  Swift  v.  Broyles,  115  Ga. 
885,  42  S.  E.'277,  58:  390 

7.  One  violating  his  agreement  not  to 
engage  in  a  business  which  he  has  sold  to 
another  is  liable,  at  least,  for  nominal  dam- 
ages. Ravmond  v.  Yarrington.  96  Tex.  443. 
73  S.  W.  800,  62:  962 

8.  In  an  action  on  contract  for  breach  of 
covenant  to  convey  real  estate  with  warran- 
ty of  title,  where  tW  vendor's  title  is  de- 
fective, only  nominal  damages  can  be  re- 
covered. Gerbert  v.  Congregation  of  the 
Sons  of  Abraham  (V.  J.  Err.  A  App.).  59 
N.  .1.  I..   U;(».  3.-)  At!.  112).  69:  764 

9.  Nominal  damages  only  can  be  recovered 
for  breach  of  a  covenant  of  warranty  by  rea-' 
son  of  an  encumbrance  consisting  of  a  right 
of  dower,  so  long  as  it  remains  inchoate. 
Blevins  v.  Smith.  104  M...  58.3.  16  S.  W.  213. 

13:  441 

10.  Wliere  medical  services  are  proved  in 
an  action  for  personal  injuries,  nominal 
damages  at  least  should  be  awarded  for  pro- 
fessional treatment.  Feenev  v.  Long  Island 
R.  Co.  116  N.  V.  375,  22  N.'E.  402.  5:  544 
Preventing  unnecessary  amount. 

As  to  Effect  of  Wrong  Medical  Treatment, 
see  infra,  .308,  310. 

Etfect  of  Prior  Disease  or  Infirmitv.  see  in- 
fra, 311    317. 

Reduction  or  .Mitiiration  of  Damajres.  see  in- 
fra.   III.    3.  "       . 


DAMAGES,  II.  a. 


933 


Aggravation  of  Damages,  sec  infra,  III.  t. 

Error  in  Refusing  Instruction  as  to,  see  Ap- 
peal and  Error.  1072a. 

See  also  infra,  327,  432. 

For  Editorial  Notes,  see  infra,  V.  §§  3.  8, 
22,  23,  27. 

11.  The  injured  party  must  use  reason- 
able exertion  to  lessen  or  moderate  the  dam- 
age resulting  from  a  wrongful  injury.  Fac- 
tors &  T.  Ins.  Co.  V.  Werlein.  42  La.  Ann. 
1046,  8  So.  435,  11 :  361 

12.  It  is  the  duty  of  the  injured  party, 
when  a  contract  is  broken,  to  minimize  the 
loss  and  injury,  when  it  is  practicable  to 
do  so  by  a  reasonable  outlay  of  money;  but 
such  outlay  is  to  be  allowed  him  as  a  part 
of  his  damages.  Griffith  v.  Blackwater 
Boom  &  L.  Co.  55  W.  Va.  604,'  48  S.  E.  442, 

69:  124 

13.  The  duty  to  minimize  loss  requires  a 
buyer,  upon  breach  by  the  seller  of  a  con- 
tract to  sell  goods  upon  credit,  to  accept  the 
latter's  unconditional  offer  to  sell  at  a  re- 
duced price  for  cash  on  delivery,  where  he  is 
able  to  accept  it  and  goods  of  that  kind  and 
quality  are  not  purchasable  from  other  par- 
ties. Lawrence  v.  Porter,  22  LT.  S.  App.  483, 
11  C.  C.  A.  27,  63  Fed.  62,  26:  167 

14.  An  agent  employed  to  buy  live  stock 
at  a  certain  market  for  a  nonresident  p"in- 
c'ipal.  and  who,  because  of  delay  in  delivering 
to  him  a  telegram,  makes  purchases  which 
the  delayed  message  tells  him  not  to  make, 
is  not  required,  in  order  to  reduce  to  the 
minimum  the  damages  recoverable  from  the 
telegraph  oompanj-,  to  resell  the  property 
that  he  has  purchased,  until  he  has  had  op- 
portunity to  communicate  with  and  get  in- 
structions from  his  principal.  Western  U. 
Teleg.  Co.  v.  North  Packing  &  P.  Co.  188  111. 
366,  58  N.  E.  958,  52:  274 

15.  One  on  whom  a  wilful  injury  is  in- 
flicted is  not  precluded,  by  his  mere  failure 
to  exercise  reasonable  care  to  avoid  the  con- 
sequences of  the  injury,  from  recovering  for 
so  iiiuch  of  the  damage  as  results  from  that 
failure.  Galveston,  H.  &  S.  A.  R.  Co.  v. 
Zantzinger,  92  Tex.  365,  48  S.  W.  563, 

44:  553 

16.  Where  plaintiffs  injuries  were  aggra- 
vated by  his  own  neglect,  and  the  jury  ap- 
portioned the  damages,  he  may  recover  only 
to  the  extent  of  the  damage  caused  without 
his  fault.  Owens  v.  Baltimore  &  O.  R.  Co. 
35  Fed.  715,  1:  75 

17.  An  aggravation  of  personal  injuries, 
caused  by  the  neglect  or  failure  of  the  in- 
jured person  to  obtain  the  needed  medical  or 
surgical  assistance,  cannot  be-  charged 
against  the  party  by  whose  negligence  the 
original  injury  was  received.  Texas  &  P.  R. 
Co.  v.  ^\Tiite,  42  C.  C.  A.  86.  101  Fed.  928, 

62:  90 

18.  A  passenger  is  not  called  upon  to  sub- 
mit to  a  wrongful  ejection  for  the  purpose 
of  economizing  the  damages  to  be  refovered, 
but  may  make  any  resistance  not  amounting 
to  a  criminal  disturbance  of  the  peace.  Ells- 
worth r.  Chicago,  B.  &  Q.  R.  Co.  95  Iowa,  98, 
63  N.  W.  584,  29:  173 

19.  The  owner  of  a  building  which  is  in- 
jured by   the   falling  of  an   adjoining   wall 


must  use  reasonable  precautions  to  reduce 
the  damages  likely  to  be  occasioned  by  its 
fall.  Factors  &  T.  Ins.  Co.  v.  Werlein,  42 
La.  Ann.  1046,  8  So.  435,  11:  361 


II.  Exemplary  or  Punitive, 
a.  In  General. 

Mitigation  of,  see  infra,  662. 

Reversal  for  Allowance  of,  see  Appeal  and 
Error,   1167-1170. 

Necessity  of  Pleading,  see  Pleading,  236. 

Retrospective  Statute  as  to,  see  Constitu- 
tional Law,  116. 

Instruction  as  to,  see  Appeal  and  Error, 
1036;  Trial,  657,  660,  768,  781-783. 

Sufficiency  of  Verdict  as  to,  see  Trial,  896, 
897. 

Effect  of  Motive  on,  see  Trover,  37. 

For  Editorial  Notes,  see  infra,  V.  §  4. 

20.  The  doctrine  of  punitive  damages  is 
rejected  by  the  supreme  court  of  Washing- 
ton as  unsound  in  principle  and  unfair  and 
dangerous  in  practice.  Spokane  Truck  &  D. 
Co.  V.  Hoefer,  2  Wash.  45,  25  Pac.  1072, 

11:689 

21.  The  right  to  bring  an  action  ex  delicto 
does  not  of  itself  authorize  the  allowance 
of  smart  monev.  llansley  v.  Jamesville  & 
W.  R.  Co.  115  N.  C.  602.  117  N.  C.  565,  20  S. 
E.  528,  23  S.  E.  443,  32 :  54.'^ 
Torts  or  negligence  generally. 

For  Editorial  Notes,  see  infra,  V.  §  4. 

22.  Punitory  damages  cannot  be  awarded 
against  the  estate  of  a  deceased  person  for 
a  tort  committed  by  him  in  his  lifetime. 
Hewlett  v.  George,  68  Miss.  703,  9  So.  885. 

13:  682 

23.  Wanton  and  reckless  indifference  to 
the  rights  of  others,  equivalent  to  an  inten- 
tional violation  of  them,  may  constitute  a 
ground  of  exemplary  damages.  Press  Pub. 
Co.  V.  Monroe,  19  C.  C.  A.  429,  38  U.  S.  App. 
410,  73  Fed.  196,  51:  35.S 

24.  Actual  damages  are  not  necessary  to 
authorize  exemplary  damages  in  case  of 
wanton  and  reckless  indifference  to  the 
rights  of  others  by  a  wrongdoer.  Id. 

25.  Exemplary  or  punitive  damages  may 
be  awarded  where  a  wrong  has  in  it  the 
element  of  negligence  which  is  gross  or  wan- 
ton, or  wilfully  oppressive.  Kansas  City,  Ft. 
S.  &  M.  R.  Co.  V.  Little,  66  Kan.  378,  71  Pac. 
820,  61:  i22 

26.  Punitive  damages  may  be  awarded 
when  a  wrongful  act  is  done  wilfully  in  a 
wanton  or  oppressive  manner,  or  even  when 
it  is  done  recklessly.  Fotheringham  v. 
Adams  Exp.  Co.  36  Fed.  252,  1 :  474 

27.  Mere  negligence,  unless  so  gross  as  to 
amount  to  positive  bad  faith,  is  not  a  ground 
for  awarding  punitive  damages.  Peterson 
v.  Western  I'.  Teleg.  Co.  72  :Minn.  41.  74  N. 
W.  1022.  40:  661 
Wrongful  conspiracy  or  combination. 
Instructions  as  to,  see  Trial,  768. 

28.  Exemplary  damages  cannot  be  recov- 
ered in  an  action  against  the  several  mem- 


934 


DAMAGES.  II.  a. 


bers  of  an  association  for  acting  in  concert 
to  withdraw  their  patronage  from  a  dealer, 
when  some  of  them  have  been  coerced  by  a 
l)V-law  which  imposed  a  penalty  for  its  vio- 
lation. BoTitwell  V.  Marr,  71  Vt.  1.  42  Atl. 
(i07,  43:  803 

29.  Compelling  the  withdrawal  of  a  hearse 
and  carriages  from  a  funeral  just  at  the 
time  when  they  were  wanted,  in  pursuance 
of  an  unlawful  by-law  of  a  liverymen's  as- 
sociation which  prohibited  doing  business 
with  any  person  who  did  not  deal  exclusive- 
ly with  its  members,  will  justify  an  award 
of  exemplary  damages,  where  the  act  was 
done  with  full  knowledge  of  the  situation, 
and  for  the  purpose  of  demonstrating  the 
power  of  the  association  to  punish  livery- 
men lor  doing  business  in  an  independent 
way,  and  to  punish  other  persons  for  deal- 
ing with  nonunion  liverymen.  Gatzow  v. 
Buening.  106  Wis.  1,  81  N.  W.  1003.  49:  475 
Interference  with  burial  rights. 

30.  In  a  suit  for  an  unlawful  and  unwar- 
ranted interference  with  the  exercise  of  a 
right  of  burial  by  the  proper  relatives,  if 
the  injury  inflicted  upon  the  plaintiffs  was 
wanton  and  malicious,  or  the  result  of  gross 
negligence  or  a  reckless  diregard  of  the 
rights  of  others,  equivalent  to  an  intentional 
violation  of  them,  exemplary  damages  may 
be  awarded,  in  estimating  which  the  injury 
to  the  natural  feelings  of  the  plaintiffs  may 
be  taken  into  consideration.  Wright  v. 
Hollywood  Cemetery  Corp.  112  Ga.  884.  38 
S.  E.  94,  52:  621 
Libel  and  slander. 

Mitigation  of  Damages,  see  infra,  658. 
riass  Legislation   as  to,  see  Constitutional 

Law.  346. 
Flower  of  Legislature  to  Limit  Amount,  see 

Constitutional  Law,  836. 
Sufficiency  of  Verdict  as  to,  see  Trial,  897. 
See  also  infra,  86;  Libel  and  Slander,  177. 
For  Editorial  Notes,  see  infra,  V.  §  4. 

31.  The  award  of  punitive  damages  in  a 
slander  case  must  be  limated  as  the  circum- 
stances in  the  judgment  of  the  jury  require. 
Gambrill  v.  Schooley.  95  Md.  260,  52  Atl. 
500,  63:  427 

32.  Exemplary  or  punitive  damages  are 
within  the  sound  discretion  of  the  jury  in 
an  action  for  slander  or  libel,  where  the 
words  are  actionable  per  se,  but  cannot  in 
any  case  be  recovered  as  a  matter  of  legal 
right.  Gambrill  v.  Schoolev.  93  Md.  48,  48 
Atl.  730.  52:  87 

33.  Punitive  damages  cannot  be  recovered 
for  the  utterance  of  words  which  are  qual- 
ifiedly  privileged,  unless  it  is  ahown  that  ac- 
tnal  malice  prompted  the  utterance.  Fresh 
V.  Cutter,  73  Md.  87,  20  Atl.  774.  10:  67 

34.  Unless  slanderous  words  are  uttered 
with  actual  malice,  hatred,  or  ill-will,  or 
with  such  clear  want  of  ground  as  to  war- 
rant an  inference  of  hatred  or  ill-will,  only 
•  ompensatory  damages  should  be  allowed. 
Rroughton  v^  McGrew,  39  Fed.  672.       5:  406 

35.  Punitive  damages  may  be  allowed, 
«vcn  in  the  absence  of  express  malice,  for 
publicatinn  of  a  libel  which  is  not  privileged 
and  is  without  excuse.  Coffin  v.  Brown,  94 
Md.  190.  .50  Atl.  567.  55:  732 


36.  Exemplary  damages  may  be  allowed 
for  wantonly  publishing  a  libel  without  in- 
quiry or  justifiable  motive.  Morming  Jour- 
nal Asso.  V.  Rutherford,  1  U.  S.  App,  296,  2 
C.  C.  A.  354,  51  Fed.  513,  16:  803 

37.  The  custom  of  a  newspaper  to  print 
stories  of  elopements  and  similar  gossip 
whenever  they  have  appeared  in  the  columns 
of  another  paper,  without  any  inquiry  as  to 
their  truth,  shows  such  reckless  unconcern  as 
to  the  mental  anguish  that  may  be  caused 
by  such  publication  as  will  warrant  a  jury 
in  finding  the  publisher  guilty  of  wanton 
negligence  which  will  justify  a  verdict  for 
punitive  or  exemplary  damages.  Morning 
Journal  Asso.  v,  Rutherford,  1  U.  S.  App. 
296,  2  C.  C.  A.  354,  51  Fed.  513,  16:  8U3 

38.  Gross  and  reckless  negligence  and  wan- 
ton indifference  to  the  rights  of  the  persons 
libeled  may,  without  any  direct  intention 
to  injure,  constitute  such  malice  as  will 
justify  exemplary  damages.  Press  Pub.  Co. 
v.  McDonald,  26  U.  S.  App.  167,  11  C.  C.  A. 
155,  63  Fed.  238,  26:  531 

39.  Failure  to  make  any  effort  to  verify 
the  accuracy  of  a  libelous  despatch,  before 
printing  it  in  a  newspaper,  may  be  found 
by  the  jury  to  constitute  such  reckless  and 
wanton  desregard  of  the  rights  of  others  aa 
to  sustain  a  verdict  for  punitory  damages. 

Td. 
Breach  of  marriage  promise. 

40.  Exemplary  or  punitive  damages,  as 
such,  cannot  be  recovered  for  breach  of  a 
contract  of  marriage  by  reason  of  the  fact 
that  the  promise  was  not  made  in  good 
faith,  but  was  made  without  intent  to  per- 
form it,  for  the  purpose  of  humiliating  and 
disgracing  the  other  party,  although  this 
fact  may  constitute  an  aggravation  of  the 
compensatory  damages.  Trammell  v.  Vaugh- 
an,  158  Mo.  214,  59  S.  W.  79,  51:  854 

41.  Exemplary  damages  may  be  awarded 
for  breach  of  promise  of  marriage,  where, 
after  the  wedding  day  was  agreed  upon  and 
the  usual  preparations  made  and  the  rela- 
tives and  guests  bidden  to  the  ceremony,  de- 
fendant failed  to  appear,  shamming  illness 
as  an  excuse,  and  had  also  persuaded  plain- 
tiff to  resign  a  situation  for  the  purpose  of 
marrying  him,  and  furthermore  in  his  plead- 
ing charges  her  with  having  no  affection  for 
him,  but  with  entertaining  a  purpose  to  pro- 
cure money  from  him  on  the  pretense  of  hia 
promise  to  marry  her  and  his  breach  thereof. 
Ohellis  v.  Chapman,  125  N.  Y.  214,  26  N.  E. 
308,  11:  784 
Seduction. 

42.  Punitive  damages  are  allowable  in  the 
case  of  seduction.  Lawyer  v.  Fritcher,  130 
N.  Y.  239.  29  N.  E.  267,  14:  700 
Fraud. 

43.  Exemplary  damages  are  recoverable 
for  fraud  in  inducing  a  man  to  marry  a 
woman  who  is  pregnant  by  another.  Kujek 
v.   Goldman.   1.50   X.  Y.   176,  44  N.   E.  773, 

34:  156 
Assault  and  battery. 

44.  In  an  action  to  recover  damages  re- 
sulting from  an  assault  and  l>attery  commit- 
ted on  the  plaintiff,  if  there  be  aggravating 
circumstances  either  in  the  act  or  intention, 


DAMAGES,  II.  b. 


935 


punitive  or  exemplary  damages  may  be  re- 
covered. Berkner  v.  Dannenberg,  116  Ga. 
954,  43  S.  E.  463,  60:  559 

45.  One  who  recklessly  and  wantonly 
strikes  a  stranger  npon  the  pretext  of  de- 
fending himself  against  one  with  whom  he 
has  had  an  altercation  is  liable  for  exem- 
plary, as  well  as  compensatory,  damages. 
Crabtree  v.  Dawson,  26  Ky.  L.  Rep.  1046,  83 
S.  W.  557,  67:  565 

46.  In  determining  the  liability  of  a  per- 
son for  exemplary  damages  for  an  assault, 
the  character  and  standing  of  the  parties 
involved  may  be  considered.  Goldsmith  v. 
Joy,  61  Vt.  488,  17  Atl.  1010.  4:  500 
Abuse  of  process. 

47.  Exemplary  damages  may  be  award- 
ed against  attaching  officers  who,  although 
they  have  no  personal  acquaintance  with, 
or  ill-will  against,  defendant,  wilfully  and 
knowingly  allow  themselves  to  become  tools 
of  the  attaching  creditors,  whose  object  is 
apparently  malicious,  and  make  an  unlaw- 
ful levy  in  a  high-handed  and  oppressive 
way  to  oppress  the  debtor.  Giddings  v. 
Freedley,  128  Fed.  355,  65:  327 

48.  Punitive  damages  may  be  awarded 
for  the  wrongful  arrest,  by  a  servant,  of  a 
landowner,  to  get  him  out  of  the  way  while 
poles  and  wires  are  strung  over  his  property 
against  his  will,  for  the  benefit  of  the  mas- 
ter. Jackson  v.  American  Teleph.  &  Teleg. 
Co.  139  N.  C.  347,  51  S.  E.  1015,  70:  738 

49.  Punitive  damages  cannot  be  awarded 
against  a  sheriflf'a  bond  for  the  wrongful  act 
of  the  sheriff's  deputy  in  killing  a  third  per- 
son under  the  mistaken  belief  that  he  is  a 
felon  for  whose  arrest  the  deputy  has  a 
warrant,  and  that  the  killing  is  necessary 
to  prevent  his  escape.  Johnson  v.  Williams, 
111  Ky.  289,  63  S.  W.  759,  54:  220 
Refusal  of  telephone  service. 

50.  Belief  in  the  existence  of  a  legal  right 
to  refuse  telephone  service  to  one  applying 
for  it,  although  erroneous,  and  refusal  to 
furnish  service  for  the  purpose  of  protect- 
ing the  rights  of  the  telephone  company, 
will  prevent  the  imposition  of  punitive  dam- 
ages for  sueh  act.  Gwynn  v.  Citizens' 
Teleph.  Co.  69  S.  C.  434,  48  S.  E.  460, 

67:  111 
Personal  injuries  or  death. 
See  also  supra,  22-27. 

51.  The  damages  for  a  personal  injury 
caused  by  negligence  may  be  the  "present 
cash  value"  of  the  injury  to  the  injured  per- 
son, taking  into  consideration  pain  and  men- 
tal suffering,  and  not  allowing  anything  as 
a  punishment,  or  punitive  damages.  (Joley 
v.  North  Carolina  R.  Co.  128  N.  C.  534,  39  S. 
E.  43,  129  N.  C.  407,  40  S.  E.  195,       57:  817 

52.  For  a  druggist  to  fill  an  order  for  % 
grain  calomel  tablets  with  morphine,  and 
place  them  in  a  box  labeled  calomel,  without 
giving  notice  of  the  fact,  may  be  found  to 
be  gross  negligence  of  an  aggravated  form, 
which  will  render  him  liable  for  punitive 
damages  in  case  injury  results  therefrom. 
Smith  V.  Middelton.  112  Kv.  588.  66  S.  W. 
388.  56:  484 

53.  Exemplary  damages  are  not  recover- 
able in  an  action  for  negligence  resulting  in 


death  to  another.  Thompson  v.  Louisville 
&  N.  R.  Co.  91  Ala.  496,  8  So.  406,  11:  i4tf 
Refusal  to  honor  check. 

54.  Punitive  damages  should  not  be  al 
lowed  for  wrongful  refusal  to  honor  a  check, 
in  the  absence  of  actual  malice,  oppression, 
or  bad  motive  on  the  part  of  the  bank. 
American  Nat.  Bank  v.  Morey,  113  Ky.  857, 
69  S.  W.  759,  58:  956 
Nonpajnnent  of  wages. 

55.  Ihe  exemplary  damages  allowed  for 
nonpayment  of  wages  on  the  discharge  of  an 
employee  under  Ark.  act  March  25,  1889, 
providing  that  in  such  case  the  wages  shall 
continue  at  the  contract  rate  until  paid,  but 
not  more  than  sixty  days  unless  action  is 
brought  in  that  time,  are  not  unreasonable. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Paul,  64  Ark. 
83,  40  S.  W.  705,  37:504 
Forcible  entry. 

56.  Exemplary  damages  for  forcible  entry 
may  be  recovered  if  the  unlawful  act  is  done 
in  a  wanton  and  reckless  manner.  Mosseller 
V.  Deaver.  106  N.  C.  494,  11  S.  E,  529, 

8:  537 
Injury  to  real  property. 

57.  Exemplary  damages  may  be  awarded 
for  wilfully  attempting  to  enjoy  a  parol  li- 
cense to  maintain  a  aitch  over  another's  land 
after  the  license  has  been  revoked.  Hicka 
Bros.  v.  Swift  Creek  Mill  Co.  133  Ala.  411, 
31  So.  947,  57:  720 

58.  Punitive  damages  may  be  allowed  for 
the  cutting  of  trees  upon  the  sidewalk  for 
the  accommodation  of  electric  light  wires, 
in  entire  disregard  of  the  rights  of  the  abut- 
ting owner,  and  against  his  protest.  Brown 
V.  Asheville  Electric  Co.  138  N.  C.  533,  51  S. 
E.  62,  69:  631 

b.  For  Act  of  Servant;  Carrier's  Liability . 

For  Editorial  Notes,  see  infra,  V.  §  4. 

69.  A  natural  person  may  be  charged  with 
punitive  damages  for  injuries  caused  by  the 
gross  negligence  of  his  servant  in  the  conduct 
of  the  master's  business,  althougn  he  has 
exercised  due  care  to  select  a  competent  and 
careful  one.  Smith  v.  Middelton,  112  Ky. 
588,  66  S.  W.  388,  56:  484 

60.  The  master  can  be  held  only  for  actual 
damages  from  a  wrongful  act  of  his  servant, 
unless  he  participated  in  or  approved  of  the 
wrong.  Staples  v.  Schmid,  18  R.  1.  224,  2(5 
Atl.  193,  19:  824 
Liability  of  carriers  generally. 

61.  Punitive  damages  may  be  given  for 
injury  by  a  railroad  train  caused  by  gross 
negligence,  recklessness,  or  wanton  disregard 
or  malice.  Mack  v.  South  Bound  R.  Co.  50 
S.  C.  323,  29  S.  E.  905,  40:  679 

62.  A  railroad  company  cannot  be  made 
responsible  for  exemplary  damages  on  ac- 
count of  injuries  done  by  one  of  its  serv- 
ants, even  though  the  act  was  wanton  and 
malicious,  unless  the  act  was  expressly  or 
impliedly  authorized  or  ratified  by  the  com- 
pany. Ricketts  v.  Chesapeake  &  O.  R.  Co. 
33  W.  Va.  433,  10  S.  E.  801.  V :  354 

63.  Exemplary  damages  cannot  be  recov- 
ered against  a  carrier  for  the  malicious  act 
of  the  conductor  of  a  train  to  the  injury  of 
a  passenger,  which  has  not  been  ratified  or 


936 


DAMAGES,  II.  b. 


adopted,  if  there  was  no  carelessness  in  the 
selection  of  employees,  or  in  the  establish- 
ment of  regulations,  or,  in  short,  if  the  car- 
rier or  its  officers,  by  whom  it  is  controlled, 
have  not  been  guilty  of  any  malice,  gross 
negligence,  or  oppression.  Dillingham  v.  An- 
thony, 73  Tex.  47,  II  S.  W.  139,  3:  634 

64.  The  mere  retention  of  the  conductor 
of  a  train  in  the  same  position  after  knowl- 
edge of  his  misconduct  does  not  operate  as 
a  ratification  of  his  wilful  and  malicious  act 
in  assaulting  a  passenger,  so  as  to  make  the 
carrier  liable  for  exemplar}'  damages.         Id. 

65.  Exemplary  damages  may  be  imposed 
on  the  lessor  of  a  railroad  because  of  the 
reckless  conduct  of  servants  of  the  lessee  in 
the  management  of  a  train,  by  reason  of 
which  a  person  received  personal  injuries. 
Hart  V.  Charlotte,  C.  &  A.  R.  Co.  33  S.  C. 
4-27,  12  S.  E.  9,  10:  794 

66.  Punitive  damages  cannot  be  recovered 
for  injuries  to  one  attempting  to  board  a 
railroad  train  from  being  struck  by  another 
train  upon  the  main  track,  which  he  was 
obliged  to  cross,  where  whistles  were  sound- 
ed and  the  bell  was  rung  and  the  fireman 
lalled  to  such  person  to  look  out,  and  there 
\\  as  nothing  to  prevent  him  from  seeing  the 
1  rain.  Southern  E.  Co.  v.  Smith,  30  C.  V.  A. 
r,'^.  .52  U.  S.  App.  708,  86  Fed.  292,      40:  746 

67.  That  cross- ties  under  the  ti'ack  at  the 
I'l'int  where  a  train  was  derailed  by  a  brok- 
■!i  rail  were  unsound,  decayed,  and  rotten, 

and  that  the  rail  which  broke  was  old,  and 
I  he  company  constantly  repaired  the  old 
I  rack  with  old  rails,  indicate  such  gross  neg- 
ligence as  authorizes  a  verdict  for  exemplary 
damages.  Alabama  d.  S.  R.  Co.  v.  Hill.  90 
Ala.  71,  8  So.  90,  9:  442 

Failure  to  transport. 

68.  Punitive  damages  cannot  be  recovered 
for  failure  to  transport  a  passenger  on  a  rail- 
road because  an  engine  was  broken  down, 
where  there  was  no  personal  injury,  insult, 
indignity,  or  intentional  wrong  to  him. 
Mansley  v.  Jamesville  &  W.  R.  Co.  115  N.  C. 
•i02.  117  N.  C.  565,  20  S.  E.  .528,  23  S.  L.  443, 

32:  543 
09.  A  railroad  company  is  not  liable  for 
jtunitive  damages  on  account  of  its  failure 
from  inability  to  run  a  train  on  the  return 
trip  at  a  stipulated  time,  merely  because  it 
sold  a  return  ticket  for  that  trip,  when  it 
had  but  two  engines,  one  of  which  was  in  the 
shop  for  repairs  and  the  other  was  not  in 
irood  condition,  and  its  roadbed  and  equip- 
ment had  been  used  for  a  considerable  time 
in  a  dilapidated  condition,  although  the 
<-arnings  of  the  road  were  all  applied  to  its 
improvement.  Id. 

70.  Exemplar}'  or  vindictive  damages  may 
be  given  for  the  refusal  to  sell  a  passenger 
a  ticket  or  to  check  his  baggage  to  a  regular 
station  of  a  passenger  train,  in  pursuance  of 
an  unreasonable  regulation  of  the  company 
which  indicates  a  wanton  disregard  of  the 
rights  of  jtassenger.s.  Pittsburgh.  C.  &  St. 
L.  R.  Co.  V.  Lvon.  12.1  Pa.  140.  16  Atl.  607. 

2 :  489 
Abuse  of  passenger. 
See  also   infra.  8.S. 

71.  Punitive  damaire=  arp  recoverable  from 


a  carrier  for  insulting  language  to  a  woman 
while  a  passenger,  by  an  employee  of  the 
carrier,  though  there  had  been  no  negligence 
in  employing  him  or  any  authorization  or 
ratification  of  his  conduct.  Knoxville  Trac- 
tion Co.  V.  Lane,  103  Tenn.  376,  53  S.  W.  557. 

46:  549 
Assault  on  passenger. 
See  also  supra,  64. 

72.  Punitive  damages  may  be  awarded  in 
an  action  against  a  street  car  company  for 
an  assault  by  its  conductor  upon  a  passen- 
ger. Birmingham  R.  &  E.  Co.  v.  Baird,  130 
Ala.  334,  30  So.  456,  54:  752 

73.  Two  hundred  and  fifty  dollars  actual, 
and  $750  exemplary,  damages,  awarded 
against  a  street  car  company  because  of  the 
intentional  kicking  in  the  vicinity  of  the 
heart,  by  a  conductor,  of  a  boy  attempting 
to  board  a  car  to  become  a  passenger, 
are  not  so  excessive  as  to  be  set  aside  on 
appeal.  McNamara  v.  St.  Louis  Transit 
Co.  182  Mo.  676,  81  S.  W.  880,  66:  486 

74.  The  intentional  kicking,  without  just 
cause  or  excuse,  by  a  street  car  conductor, 
of  a  boy  who  is  attempting  to  board  a  car 
to  become  a  passenger,  will  justify  an  award 
of  exemplary  damages  against  the  street  car 
company,  although  the  conductor  honestly 
believed  that  he  was  attempting  to  steal  a 
ride.  Id. 

75.  Provocation  does  not  necessarily  de- 
feat exemplary  damages  for  an  assault  by  a 
conductor  on  a  passenger,  but  the  conduct  of 
both  may  be  considered  bv  the  jury.  Balti- 
more &  O.  R.  Co.  V.  Barger,  80  Md.  23,  30 
Atl.  560,  26:  220 
Ejection. 

76.  Only  compensatory  damages  can  be  re- 
covered for  ejecting  a  passenger  without  un- 
reasonable force,  if  it  is  done  in  good  faith, 
pursuant  to  rules,  and  upon  due  notice  to 
him.  Pine  v.  St.  Paul  Citv  R.  Co.  .50  Minn. 
144,  52  N.  W.  392,  '  16:  347 

77.  Exemplary  damages  cannot  be  recov- 
ered from  a  carrier  for  the  malicious  act  of 
the  conductor  in  ejecting  a  passenger  unless 
his  act  is  either  authorized  or  ratified  by  the 
carrier.  Robinson  v.  Superior  Rapid  Transit 
R.  Co.  94  Wis.  345,  68  N.  W.  961.  34:  205 

78.  Exemplary  damages  may  be  recovered 
by  a  passenger  for  an  ejection  which  was 
malicious  as  well  as  wrongful.  Ellsworth 
V.  Chicago.  B.  &  Q.  R.  Co.  95  Iowa.  98,  63  N. 
W.  .584.  29:  173 

79.  Exemplary  damages  may  be  recovered 
for  the  expulsion  of  a  passenger  from  a  train 
before  arriving  at  his  destination,  because  by 
the  rules  of  the  company,  unknown  to  the 
passenger,  the  train  is  not  scheduled  to  stop 
at  such  station,  where  the  passenger  has  re- 
lied on  the  representation  of  the  ticket  agent 
that  the  train  would  stop  at  such  station. 
Kansas  Citv,  Ft.  S.  &  M.  R.  Co.  v.  Little. 
66  Kan.  378,  71  Pac.  820,  61:  122 

80.  Exemplary  damages  may  be  recovered 
for  the  ejection,  in  the  night  and  at  a 
strange  place,  of  a  lady  from  a  train  where 
she  has  a  right  to  be  under  the  carriage  con- 
tract made  with  Oic  agent  selling  her  tick 
et.  of  whicli  the  conductor  is  fully  informed. 
althoTigh  the  forms  of  fhf  contract  are  not 


I)A.MA(;i:s.   111.  a.  1. 


9it7 


embodied  in  the  ticket,  and  the  regulations 
of  the  carrier  require  passengers  between 
the  termini  named  in  the  ticket  to  travel 
by  another  route.  Illinois  C.  E.  Co.  v.  Harp- 
er, 83  Miss.  560,  35  So.  764,  64:  283 

81.  Punitive  damages  may  be  awarded  for 
injuries  sustained  in  consequence  of  an  ejec- 
tion from  a  street  car  for  refusal  to  pay 
fare,  where  the  objection  was  unwarranted 
and  arbitrary,  causing  serious  injuries  to  the 
passenger,  who  shortly  afterwards  suffered 
tiiim  an  attack  of  pneumonia,  the  severity 
of  which  was  to  some  extent  due  to  his  in- 
juries and  the  condition  of  his  system  in  con- 
sequence thereof.  Nashville  Street  R.  Co.  v. 
Griffin,  104  Tenn.  81,  57  S.  W.  153,  49:  451 
Failure  to  stop  at  station. 

82.  Punitive  damages  are  recovA-able  of  a 
railroad  company  for  disregard  of  its  stat- 
utory duty  to  stop  at  a  station  for  a  passen- 
ger, when  it  has  advertised  for  passengers 
for  that  train  and  has  room  for  them,  or 
could  by  reasonable  diligence  have  had  cars 
enough  to  accommodate  them.  Purcell  v. 
Richmond  &  D.  R.  Co.  108  N.  C.  414,  12  S.  E. 
954,  12:  113 

83.  A  woman  carried  by  a  railroad  train 
beyond  her  station,  at  which  the  railroad 
employees  refused  to  put  her  off,  and  to 
whom  they  "were  indecorous  or  insulting, 
either  in  words,  tone,  or  manner,'  may  be 
allowed  to  recover  punitive  damages.  Louis- 
ville &  N.  R.  Co.  V.  Ballard,  88  Ky.  159,  10 
S.  W.  429,  2:  694 
Cutting  off  sleeper  from  train. 

84.  Exemplary  damages  cannot  be  allowed 
for  mere  negligence  in  cutting  off  a  sleeper 
from  a  train,  whereby  a  passenger  with  a 
sick  child  is  left  while  his  baggage  and  medi- 
cine go  with  the  train.  Norfolk  &  W.  R.  Co. 
V.  Lipscomb,  90  Va.  137,  17  S.  E.  809, 

20:  817 
As  to  frerght. 

85.  If  delivery  of  goods  by  a  carrier  at  the 
wrong  landing  is  made  with  a  wilful  purpose 
to  harass  and  injure  the  owner,  punitive 
damages  may  be  recovered.  Strieker  v. 
Leathers,  68  Miss.  803.  9  So.  821,  13:  600 
As  to  telegrams. 

86.  Punitive  damages  are  recoverable 
against  a  telegraph  company  for  the  mali- 
cious transmission  of  a  libelous  message  over 
its  wires  by  its  agent  within  the  scope  of  his 
employment.  Peterson  v.  Western  U.  Teleg. 
Co.  75  Minn.  368,  77  N.  W.  985,  43:  581 


ni.  Measure  of  Compensation. 

a.  On  Contracts. 

1.  Generally. 

Mental  Anguish  for  Breach,  see  infra,  570- 
572,   575-577. 

Ixjss  of  Profits  from  Breach,  see  infra,  III. 
P,2. 

For  Breach  of  Contract  as  to  Telegraph,  see 
infra,  IIL  b;  HI.  o,  2,  6. 

Opinion  Evidence  as  to  Damages  from 
Breach,  see  Evidence,  1348. 

Right  to  Interest  in  Case  of  Breach,  see  In- 
terest. 29.  32-.34. 


See  also  infra,  244. 

For  Editorial  Notes,  see  mfra,  V.  §§  5-9. 

87.  The  measure  of  damages  recoveraiilc 
on  a  contract  by  the  promisee  is  not  affected 
by  the  fact  that  it  was  for  the  benefit  of  a 
corporation  of  which  he  is  a  stockholder. 
Drummond  v.  Crane,  159  Mass.  577,  35  N.  E. 
90,  23:  707 

88.  The  amoimt  of  reooverj-  on  failure  of 
the  consideration  for  which  money  is  donat- 
ed to  a  manufacturing  company  in  order  to 
secure  the  removal  of  the  business  to  a  cer- 
tain place  is  the  amount  paid,  with  interest. 
Fort  Wayne  Electric  Light  Co.  v.  Miller,  131 
Ind.  499,  30  N.  E.  23,  14:  804 

89.  The  measure  of  damages  in  assumpsit 
by  the  holder  of  a  warehouse  receipt  for  eggs 
on  which  he  has  made  advances,  against  the 
warehousemanj  who  has  delivered  the  eggs 
to  the  depositor,  is  the  amount  of  the  loan, 
with  interest,  if  this  is  less  than  the  value 
of  the  eggs.  Fifth  Nat.  Bank  v.  Providence 
Warehouse  Co.  17  R.  I.  112,  20  Atl.  203. 

9:  260 
Breach  of  telephone  contract. 
Punitive  Damages  for,  see  supra,  50. 

90.  The  measure  of  damages  for  wrongful- 
ly disconnecting  a  telephone  because  of  mis- 
take as  to  payment  of  rent  is  the  amount 
which  will  compensate  the  patron  for  the 
injuries  caused  by  the  breach  of  contract. 
Cumberland  Teleph.  &  Teleg.  Co.  v.  Hendon, 
114  Ky.  501,  71  S.  W.  435,  60:  849 

91.  The  compensatory  damages  to  be 
awarded  a  patron  of  a  telephone  company 
for  wrongful  discontinuance  of  the  sei-vice  is 
the  amount  paid  for  the  service  for  the  time 
during  which  it  was  refused,  in  the  absence 
of  any  proof  of  specific  loss  because  of  the 
disconnection.  Id. 
Insurance  contract. 

Extent    of    Recovery    against    Assessment 

Company,  see  Insurance,  IH.  h,  2. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

92.  The  rule  that  the  damages  for  breai-!i 
of  a  contract  insuring  a  life  are  the  pre- 
miums paid  prior  to  the  breach,  with  inter- 
est thereon  from  the  date  of  each  payment, 
is  applicable  to  contracts  in  mutual  benefit 
associations.  Strauss  v.  Mutual  Reserve 
Fund  L.  Asso.  126  N.  C.  971,  36  S.  E.  352. 
128  N.  C.  465,  39  S.  E.  55,  54:  605 

93.  No  more  than  nominal  damages  could 
be  recovered  for  the  depletion  of  the  class 
in  a  benefit  society  to  which  a  person  in- 
sured belonged,  even  if  it  constituted  a 
breach  of  contract,  where  such  depletion  was 
occasioned  by  the  formation  of  a  new  class, 
into  which  many  members  of  the  former  en- 
tered, as  the  damages  are  too  remote,  con- 
jectural, and  speculative  to  form  the  basis 
of  a  legal  recovery.  Supreme  Lodge  K.  of  P. 
V.  Knight,  117  Ind.  489,  20  N.  E.  479,  48.}. 

3:  409 

94.  The  holder  of  a  fire  insurance  policy 
insuring  "forever"  the  insured  and  liis  as- 
signs may,  where  the  insurer  wrongfully  ter- 
minates the  policy,  secure  a  new  policy  in 
another  company,  and  recover  from  the  old 
company  the  costs  thereof.  Marshall  v. 
Franklin  F.  Ins.  Co.  176  Pa.  628,  35  Atl.  204. 

34:  159 


938 


DAMAGES.  III.  a,  3. 


Not  to  engage  in  business. 

See  also  supra,  7,  12;  infra,  182-184. 

95.  Damages  for  breach  of  a  contract  bind- 
ing a  person  not  to  engage  in  business  as  a 
member  of  a  rival  firm,  where  the  breach 
consists  only  in  causing  the  erroneous  belief 
that  he  was  a  member  of  that  firm,  can  in- 
clude only  the  loss  to  the  other  party  occa- 
sioned by  that  belief,  and  not  any  loss 
caused  by  the  competing  business  independ- 
ent of  the  belief.  Daniels  v.  Brodie,  54 
Ark.  216,  15  S.  W.  467,  11:81 
To  construct  railroad  or  side  track. 

96.  The  measure  of  damages  for  breach  of 
contract  to  build  a  motor  railway  to  connect 
with  the  business  portion  of  a  city  a  tract 
of  land  which  one  of  the  parties  has  just 
purchased  with  the  view  of  fitting  and  sell- 
ing it  for  residences  is  the  diflference  between 
the  value  of  the  land  on  the  day  the  road 
should  have  been  completed,  not  less  tnan 
the  agreed  purchase  price,  and  what  its 
value  would  have  been  on  that  day  with  the 
road  completed  and  in  operation.  Blagen  v. 
Thompson,  23  Or.  239,  31  Pac.  647,      18:  315 

97.  The  expenditure  for  rails  for  a  side 
track  to  be  used  in  mining  may  be  included 
in  the  damages  for  breach  of  a  mining  con- 
tract. Worthington  v.  Gwin,  119  Ala.  44,  24 
So.  739,  43:382 
To  furnish  wedding  trousseau. 

08.  In  computing  damages  for  the  breach 
of  the  contract  of  a  fashionable  milliner  to 
furnish  the  dresses  for  the  trousseau  of  a 
bride  of  wealth  and  high  social  standing,  the 
court  will  take  into  consideration,  not  alone 
the  disappointment  of  the  bride  in  not  hav- 
ing the  dresses  in  time  for  the  wedding,  and 
her  mortification  and  humiliation  in  going 
to  her  husband  unprovided  with  a  suitable 
trousseau,  but  also  the  fact  that  entertain- 
ments had  been  planned  in  her  honor  on  her 
wedding  tour,  and  at  her  arrival  at  the  home 
of  her  husband,  which  entertainments  she 
would  have  to  forego  for  want  of  the  dress- 
es.   Lewis  v.  Holmes,  109  La.  1030,  34  So.  66, 

61:274 
To  supply  fuel  or  water. 

99.  Injury  must  be  shown,  to  authorize  re- 
covery of  damages  for  breach  of  contract  to 
permit  the  taking  from  a  tank  of  all  water 
not  required  for  certain  purposes,  by  the  ap- 
plication of  the  water  to  purposes  not  cov- 
ered by  the  agreement.  Abraham  v.  Oregon 
&  C.  R.  Co.  37  Or.  495,  60  Pac.  899,      64:  391 

100.  Damages  suffered  by  individuals  in 
their  property  by  reason  of  failure  to  fur- 
nish a  stipulated  supply  af  water  to  a  town 
cannot  be  taken  into  account  in  determining 
the  damages  to  the  town.  Wilev  v.  Athol. 
150  Mass.  426,  23  N.  E.  311,  *         6:  342 

101.  The  sickness  and  death  of  children 
directly  due  to  the  failure  of  a  natural  gas 
company  to  supply  the  neeaed  gas  for  fuel 
in  severe  winter  weather  to  a  dwelling  house 
which  it  had  assumed  to  supply,  and  for 
which  other  fuel  could  not  be  procured,  may 
constitute  an  element  of  the  damages  to  be 
recovered  for  such  failure.  Coy  v.  Indian- 
apolis Gas  Co.  140  Tnd.  6.55.  46  N.  E.  17,  20, 

36:  535 

102.  The  full  amount  of  damage  to  grow- 


ing lettuce  in  a  greenhouse,  which  is  frozen 
by  reason  of  the  failure  to  supply  water 
necessary  for  steam  heating,  is  the  measure 
of  damages  for  such  failure.  Watson  v. 
Needham,  161  Mass.  404,  37  N.  E.  204, 

24:  287 
To  keep  another's  child  in  own  family. 

103.  The  proper  measure  of  damages  for 
breach  of  a  contract  by  a  person  to  keep  in 
his  own  family  the  daughter  of  another, 
where  the  contract  had  been  fully  complied 
with  for  nearly  two  years,  and  the  daughter 
was  then  placed  in  the  county  asylum  and 
remained  there  until  she  died,  with  no  at- 
tempt by  either  party  to  rescind  the  con- 
tract, is  the  difference  in  value  between  the 
care  and  treatment  she  actually  received 
and  that  called  for  by  the  contract,  and  not 
the  whole  consideration  received  for  her 
keeping.  Vancleave  v.  Clark,  118  Ind.  61,  20 
N.  E.  527,  3:  519 
Not  to  transfer  note. 

104.  The  insolvency  of  the  plaintiff  is  a 
fact  to  be  considered  on  the  question  of  his 
damages  for  breach  of  contract  by  transfer- 
ring to  a  bona  fide  purchaser  a  note  made 
by  him,  but  which  he  has  not  paid.  Lyle  ▼. 
McCormick  Harvesting  Mach.  Co.  108  Wis. 
81,  84  N.  W.  18,  51 :  906 
Failure  to  notify  of  forgery  of  check. 

105.  The  amount  of  damages  which  a 
bank  is  entitled  to  claim  against  a  depositor 
because  of  his  failure  to  promptly  notify  it 
of  forged  checks  returned  in  his  vouchers  is, 
in  case  the  forger  is  arrested  and  a  part  of 
the  money  recovered,  the  difference  between 
the  amount  paid  on  the  checks  and  the 
amount  so  recovered.  First  Nat.  Bank  v. 
Allen,  100  Ala.  476,  14  So.  335.  27:  426 
By  agent. 

106.  The  measure  of  damages  in  an  action 
against  an  agent  for  making  a  contract  with 
plaintiff  without  authority  is  the  loss  sus- 
tained by  the  failure  of  the  contract.  Far- 
mers' Co -Op.  T.  Co.  V.  Floyd,  47  Ohio  St.  525, 
26  N.  E.  110,  12:  346 

107.  The  measure  of  damages  for  breach 
by  an  agent  who  signs  a  contract  to  convey 
his  principal's  land  and  so  warrants  his  au- 
thority to  make  the  contract,  is  what  the 
other  contracting  party  loses  by  reason  of 
the  false  assertion  of  authority,  or  the 
amount  of  money  paid  out,  or  the  value  of 
services  rendered,  or  the  special  damages 
sustained.  Le  Rov  v.  .Tacobosky,  136  N.  C. 
443,  48  S.  E.  796.  '  67:977 

2.  On  Bonds. 

Punitive,  see  supra,  49. 

On  Injunction  Bond,  see  infra,  553. 

Right  to  Damages  on  Injunction  Bond,  see 

Injunction,  488,  491. 
On  Replevin  Bond,  see  Replevin,  26. 
Submission  of  Question  to  Jury  in  Action 

on,  see  Trial.  72. 
See  also  infra,  172,  180,  280. 
For  Editorial  Notes,  see  infra,  V.  §§  2,  20. 

108.  Ihe  measure  of  damages,  in  an  action 
to  recover  from  the  sureties  on  the  official 
bond  of  a  bank  cashier  the  amount  which  he 
has  embezzled  from  the  bank  from  time  to 


DAMAGES,  III.  a,  8 


939 


time,  is  the  sum  of  such  embezzlements  and 
the  interest  on  each  sum  embezzled  from  the 
time  it  was  taken.  McShane  v.  Howard 
Bank,  73  Md.  135,  20  Atl.  776,  10:  552 

109.  The  penalty  named  is  not  the  meas- 
ure of  the  surety's  liability  on  the  bond  of 
a  contractor  for  government  work,  under  a 
statute  requiring  it  to  be  conditioned  for 
the  performance  of  the  contract,  with  the 
additional  obligation  that  the  contractor 
shall  pay  for  labor  and  materials;  but,  al- 
though the  surety  has  taken  charge  of  and 
completed  the  work  at  a  loss  exceeding  the 
penalty  of  the  bond,  he  may  still  be  liable 
to  laborers  and  materialmen  for  the  amount 
of  their  claims.  Griffith  v.  JRundle,  23  Wa»h. 
463,  63  Pac.  199,  \     55:  381 

3.  As  to  Real  Property. 

For  Fraud  in  Sale  of,  see  infra,  259-264. 
Recovery  for  Loss  of  Profits,  see  infra,  630. 
In  Case  of  Deficiency  in  Quantity,  see  Ven- 
dor and  Purchaser,  20. 
See  also  supra,  96. 
For  Editorial  Notes,  see  infra,  V.  §  22. 

Unlawful  sale  by  mortgagee. 

110.  A  mortgagor  may  elect  to  recover  full 
damages  on  account  of  the  unlawful  sale  of 
the  land  under  a  power  of  sale  in  the  mort- 
gage when  there  was  no  default,  and  thus 
ratify  the  title  of  a  purchaser  who  has 
bought  the  land  for  value  in  good  faith,  al- 
though he  might,  instead,  repudiate  the  sale 
and  redeem  the  premises.  Rogers  v.  Barnes, 
169  Mass.  179,  47  N.  E.  602,  38:  145 
Breach  of  contract  to  convey. 

Recovery  for  Loss  of  Profits,  see  infra,  633. 

Sfee  also  supra,  8,  107. 

For  Editorial  Notes,  see  infra,  V.  §§  5,  23. 

111.  The  measure  of  damages  for  breach 
of  a  contract  to  convey  real  estate  is  the 
difference  between  the  contract  price  and  the 
market  value  of  the  property.  Le  Roy  v. 
Jacobosky,  136  N.  C.  443,  48  S.  E.  796, 

67:  977 

112.  In  an  action  on  a  contract  to  convey 
unimproved  land  with  warranty  of  title,  to 
recover  damages  for  failure  to  convey,  the 
vendor's  title  proving  defective,  the  value 
of  buildings  placed  on  the  land  by  the  ven- 
dee, without  the  request  of  the  vendor,  be- 
fore the  time  fixed  for  conveyance  has  ar- 
rived, cannot  be  recovered  by  the  vendee. 
Gerbert  v.  Congregation  of  the  Sons  of  Abra- 
ham (N.  J.  Err.  &  App.),  59  N.  J.  L.  160,  35 
Atl.  1121,  69:  764 

113.  Where  a  vendor,  upon  nonpayme^it  of 
notes  for  the  balance  of  the  purchase  price, 
tlie  deed  having  been  left  in  escrow,  repudi- 
ates the  contract  and  sells  the  land  to  a 
third  party  without  notifying  vendee,  the 
latter's  measure  of  damages  is  the  market 
value  of  the  land  at  the  time  the  deed  should 
have  been  delivered,  less  the  unpaid  balance 
of  the  purchase  price,  with  interest.  The 
prices  at  which  such  land  or  lots  are  being 
sold  in  market  at  the  time  is  the  market 
value.  The  fact  that,  because  of  a  "boom," 
the  prices  are  "fictitious,"  is  immaterial. 
Johnson  v.  McMullin.  3  Wyo.  237,  21  Pac. 
701,  4:  670 


Breach  of  covenants. 

Recovery  of  Counsel  Fees,  see  infra,  653. 
Evidence  as  to,  see  Evidence,  1836,  2035. 
Recovery  for  Improvements  on,  see  Improve- 
ments, 9. 
Allowance  of  Interest,  see  Interest,  34. 
Kee  also  supra,  8,  9;  infra,  124,  125. 
For  Editorial  Notes,  see  infra,  V,  §§  6,  22, 

114.  The  measure  of  damages  upon  the 
covenant  of  seisin,  if  there  ia  a  failure  of 
title  to  the  whole  of  the  property  conveyed, 
is  the  price  paid,  and  a  recovery  will  operate 
practically  as  a  rescission;  for  a  purchaser 
cannot  be  permitted  to  recover  back  the  con- 
sideration, and  also  retain  the  property  con- 
veyed. Kansas  City  juand  Co.  v.  Hill,  87 
Tenn.  589,  11  S.  W.  797,  5:  45 

115.  The  rental  value  of  the  premises  dur- 
ing the  possession  of  the  vendee  must  be  de- 
ducted from  his  recovery  for  breach  of  a 
covenant  of  seisin,  which  is  made  by  an  out- 
standing contingent  remainder,  where  his 
deed  gave  him  at  least  a  life  estate,  and  the 
life  tenancy  has  continued  so  as  to  preclude 
the  remainder-men  from  demanding  rents 
for  any  part  of  the  time.  Brannon  v.  Cur- 
tis, 98  Tenn.  153,  38  S.  W.  1075,        69:  760 

116.  Rent  due  from  a  tenant  under  a  lease 
which  constituted  a  breach  of  a  covenant 
against  encumbrances  cannot  be  deducted 
from  the  damages  for  breach  of  covenant, 
where  the  purchaser  never  collected  the  rent 
or  recognized  or  acknowledged  the  tenancy. 
Edwards  v.  Clark,  83  Mich.  246,  47  N.  W.  112. 

10:  659 

117.  The  measure  of  damages  in  an  action 
by  an  evicted  vendee  against  a  remote  ven- 
dor for  breach  of  a  covenant  for  quiet  enjoy- 
ment of  lands  is  the  amount  received  by 
such  vendor,  with  interest  thereon,  and  not 
the  consideration  paid  by  the  evicted  party. 
To  this  may  be  added  the  costs  properly 
taxed  in  the  action  by  which  he  was  evicted, 
but  not  his  attorney's  fees  in  that  action. 
Brooks  V.  Black,  68  Miss.  161,  8  So.  332, 

11:176 

118.  The  grantee  of  one  who  has  conveyed 
to  a  railroad  a  right  of  way  through  a  cer- 
tain tract  of  land  forming  a  part  of  his 
farm,  such  grantee  receiving  only  a  part  of 
the  right-of-way  land,  is  not,  in  seeking  a 
recovery  for  damages  for  breach  of  a  cove- 
nant by  the  railroad  company  to  keep  a 
stream  running  on  the  same  side  of  the 
track,  and  not  to  lee  it  run  through  cattle 
guards,  restricted  to  that  part  of  the  right- 
of-way  land  which  he  purchased,  but  may 
have  recovery  for  the  damage  to  all  of  the 
land  purchased,  although  it  exceeds  the 
whole  tract  of  the  right-of-way  land.  Peden 
V.  Chicago,  R.  I.  &  P.  R,  Co.  78  Iowa,  131, 
42  N.  W.  625,  4:  401 

119.  The  fact  that  a  covenant  in  a  right- 
of-way  deed  to  a  railroad,  that  it  will  keep 
a  certain  stream  on  the  same  side  of  the 
track  and  not  allow  it  to  cross  through  cat- 
tle guards,  does  not  mention  either  bridges 
or  culverts,  will  not  confine  the  landowner  to 
a  recovery  for  the  damage  caused  by  trans- 
mission of  the  water  through  cattle  guards 
alone,  so  as  to  exclude  him  from  recovery 


940 


DAMAGES,  HI.  a,  4 


fur  damages  caused  by  its  transmission  un- 
(l<^r  bridges  and  through  culverts.  Id. 

Breach  of  lessor's  contract. 

120.  The  damages  for  failure  to  give  a 
lessee  possession  under  the  lease  cannot  be 
inrreased  by  showing  the  sums  paid  by  the 
plaintiff  for  releases  from  contracts  with 
clerks  and  to  induce  merchants  to  take  back 
goods  purchased  from  them,  unless  it  is 
made  to  appear  that  the  sums  paid  were 
reasonable,  and  that  the  obligation  to  pay 
was  entered  into  in  good  faith.  Cohn  v. 
Norton,  57  Conn.  480,  18  Atl.  595,        5:  572 

121.  The  measure  of  damages  for  failure 
to  deliver  the  building  to  the  tenant  accord- 
ing to  the  terms  of  a  contract  to  build  and 
lease  to  him  a  building  of  such  unprecedent- 
ed size  that  no  one  but  the  tenant  would  be 
likely  to  make  it  serviceable  in  his  business 
is  the  difference  between  the  rent  provided 
for  in  the  contract  and  the  value  or  rental 
value,  and  not  the  market  value  of  the  prop- 
er! v.  Jonas  v.  Noel,  98  Tenn.  440,  39  S.  W. 
724.  36:  862 

122.  The  measure  of  damages  recoverable 
by  a  lessee  to  whom  the  lessor  fails  to  give 
possession  of  the  premises  is  the  rent  paid, 
and  the  difference  between  the  rent  agreed 
to  be  paid  and  the  value  of  the  term,  to- 
gether with  such  special  damages  as  the  cir- 
cumstances may  show  him  to  be  entitled  to. 
Cohn  v.  Norton.  57  Conn.  480,  18  Atl.  595, 

5:  572 

123.  The  lessee  of  a  store,  on  failure  to 
obtain  possession,  cannot  recover,  as  dam- 
ages, amounts  which  he  has  been  compelled 
to  pay  to  clerks  or  to  merchants  from  whom 
he  has  bought  goods,  for  release  from  con- 
tracts, or  anything  for  depreciation  of  goods, 
where  the  lessor  did  not  request  him  to  hire 
clerks  and  purchase  goods,  or  know  that  he 
was  about  to  do  so.  Id. 

124.  The  rule  allowing  the  lessee  only 
nominal  damages  for  breach  of  a  covenant, 
express  or  implied,  in  a  lease  has  never 
been  adopted  in  Connecticut;  but  all  such 
cases  are  decided  upon  the  general  principles 
applicable  to  other  contracts.  Id. 

125.  The  breach  by  a  landlord  of  his  cove- 
nant to  repair  a  leaky  roof  will  not  render 
him  liable  in  damages  for  injuries  caused  by 
the  leak  to  goods  voluntarily  left  by  his 
tenant  beneath  the  roof  after  his  refusal  of 
tlie  latter's  request  that  the  repairs  be 
made.  Hendry  v.  Squier.  126  Ind.  19,  25  N. 
E.  830.  ■  9:  798 

126.  The  damages  for  the  wrongful,  but 
not  malicious,  ousting  of  a  tenant  from  pos- 
session of  a  part  of  a  rented  farm  are  the 
difference  in  rental  value  of  the  farm  with 
and  without  such  part  although  a  portion 
of  it  had  been  planted  at  the  time.  Irwin 
V.  Hess,  176  Pa.  594,  .35  Atl.  217.  35:  415 

127.  An  agreement  for  a  pro  rata  deduc- 
1  ion  of  the  agreed  rents  for  water  power,  in 
<ase  of  a  deficiency  of  water,  does  not  pre- 
( lude  a  recovery  of  damages  for  breach  of 
contract  by  the  lessor  to  repair  the  dams  and 
raxes,  if  injured,  by  which  failure  the  lessee 
loses  the  use  of  his  mill,  the  rental  value  of 
which  is  .$20  or  ir2.")  per  day.  while  the  rent 
ot   the   water  power  is  only  .*2.8.'?    per   day. 


Pengra  v.  Wheeler,  24  Or.  532,  34  Pae.  354. 

21:726 

4.  Sales  of  Personalty;  Warranty. 

.  o.  Seller's  Failure  to  Deliver, 

Recovery  for  Loss  of  Profits,  aee  infra,  634- 

637. 
See  also  supra,  13. 
For  Editorial  Notes,  see  infra,  V.  §§  5,  8,  23, 

27. 

128.  In  an  action  to  recover  damages  for 
the  breach  of  an  executory  contract  to  sell 
and  deliver  goods,  the  general  rule  is  that 
the  difference  between  the  market  value 
thereof  at  the  time  and  place  of  delivery, 
and  the  contract  price,  with  interest  from 
the  time  of  the  breach,  is  the  true  measure. 
Vogt  V.  Shienebeck,  122  Wis.  491,  100  N.  W. 
820,  67:756 

129.  The  measure  of  damages  for  failure 
to  deliver  coal,  where  the  purchase  price  is 
not  paid  in  advance,  is  the  difference  be- 
tween the  contract  price  and  the  market 
price  at  the  time  of  delivery  fixed  by  the 
contract.  Osgood  v.  Bander,  75  Iowa,  550, 
39  N.  W.  887,  1:655 

130.  The  measure  of  damages  for  breach 
of  an  agreement  to  furnish  a  machine  is  the 
difference  between  the  price  agreed  upon  and 
the  greater  cost  of  another  machine.  A.  D. 
Puffer  &  Sons  Mfg.  Co.  v.  Lucas,  112  N.  C. 
377,  17  S.  E.  174.  19:  682 

131.  In  case  one  who  has  sold  furniture 
for  a  hotel,  and  contracted  with  the  proprie 
tor  to  deliver  it  by  or  on  a  certain  date, 
knowing  the  purpose  for  which  it  is  to  "be 
used  and  that  it  is  necessary  for  the  opera- 
tion of  the  hotel,  fails  to  deliver  it  until  long 
after  the  appointed  time,  thereby  preventing 
the  renting  of  the  rooms  to  guests,  he  is  lia 
ble  for  the  loss  sustained  by  reason  of  such 
failure;  and  such  loss  may  be  determined  by 
finding  the  difference  between  the  value,  for 
the  purpose  for  which  they  were  intended,  of 
the  rooms  furnished  and  unfurnished  during 
the  time  they  could  not  be  used  for  such 
purpose.  Berkev  &  G.  Furniture  Co.  v.  Has 
call,  123  Ind.  502,  24  N.  E.  336,  8:  65 

132.  Damage  from  diminution  of  yield  be- 
cause of  breach  of  contract  to  furnish  ferti- 
lizer to  assist  in  making  a  crop  is  not  too 
remote  to  sustain  an  action  for  the  breach. 
Herring  v.  Armwood,  130  N.  C.  177,  41  S.  E. 
96,  57:  958 
Manufactured  article. 

Recovery  for  Loss  of  Profits,  see  infra,  636. 
For  Editorial  Notes,  see  infra,  V.  §  23. 

133.  The  difference  in  the  value  of  a  manu- 
factured article  after  and  before  the  discov- 
ery of  the  defects  is  not  the  proper  measure 
of  damages  for  breach  of  contract  to  manu- 
facture it.  Rollins  Engine  Co.  v.  Eastern 
Forge  Co.  73  N.  H.  92,  59  Atl.  382,  68;  441 
Goods  not  obtainable  elsewhere. 

For  Editorial  Notes,   see  infra,  V.   §  23. 

134.  Damages  for  breach  of  contract  ti> 
furnish  machinery  which  cannot  be  procureff 
in  the  market,  to  a  projected  limited  part- 
nership thereafter  organized  by  the  parties 


DAMAGES.  HI.  a,  4. 


941 


purctia.siiig  as  general  partners,  may  include 
loss  suffered  from  consequent  inability  suc- 
cessfully to  establish  and  fit  out  the  pro- 
posed business.  Abbott  v.  Hapgood,  150 
Mass.  248,  22  N.  E.  907,  5:  586 

135.  The  general  rule  that  the  measure  of 
damages  in  case  of  breach  of  an  executory 
contract  to  sell  and  deliver  goods  is  the  dif- 
ference between  the  market  value  thereof  at 
the  time  and  place  of  delivery  and  the  con- 
tract price,  with  interest,  does  not  apply 
where  at  the  time  of  the  breach  the  buyer 
oould  not  have  obtained  like  goods  at  the 
place  of  delivery,  and  in  such  case  the  dam- 
ages recoverable  are  such  as  arise  naturally 
from  the  breach,  or  such  as  may  reasonably 
\k'.  supposed  to  have  been  in  coftjiemplation 
of  both  parties  at  the  time  they  made  the 
contract,  as  the  probable  result  of  the  breach 
of  it.  Vogt  V.  Shienebeck,  122  Wis.  491,  100 
N.  W.  820,  67:  756 

136.  The  proper  measure  of  damages  for 
breach  of  an  executory  contract  of  sale  and 
delivery,  where  at  the  time  of  the  oreach 
similar  goods  could  not  be  obtained  by  the 
Iniyer  at  the  place  agreed  upon  for  delivery 
but  there  was  a  market  value  for  such  goods 
at  the  point  to  which  they  were  to  be  con- 
signed, is  the  difference  between  the  con- 
tract price  and  such  value,  less  any  expense 
which  the  buyer,  if  the  contract  had  been 
performed,  would  have  been  put  to  in  deliv- 
ering the  goods  at  such  place,  with  interest 
on  the  residue  at  the  legal  rate,  from  the 
date  of  the  breach.  Id. 
Articles  purchased  with  intent  to  resell. 
J'or  Editorial  Notes,  see  infra,  V.  §  23. 

137.  Where  a  company  manufacturing  ag- 
ricultural steam  engines  agrees  to  furnish 
an  agent  who  sells  on  commission  the  en- 
gines necessary  to  supply  the  season's  de- 
mand, and  the  agent  makes  large  expendi- 
tures in  advertising,  canvassing,  and  other- 
wise building  up  the  trade,  and  proves  a 
heavy  demand  upon  him  for  these  particular 
^•ngines,  largely  in  excess  of  his  order  to 
the  company,  the  company,  refusing  with- 
out sufficient  cause  to  furnish  the  engines 
oiYlered,  will  be  held  liable  for  the  sum  of 
commissions  on  the  engines  ordered,  and  for 
the  reasonable  expenditures  of  the  agent  in 
the  undertaking.  Tavlor  Mfg.  Co.  v.  Hatch- 
er. 39  Fed.  440,  '  3:  587 

138.  The  difficulty  and  extra  expense  of 
procuring  the  stock  for  a  monument  in  win- 
ter months  and  the  limited  time  available, 
where  a  contractor  who  had  agreed  to  fur- 
nish it  in  the  spring  repudiated  the  agree- 
ment late  in  December,  may  constitute  ele- 
ments of  damages  for  breach  of  contract, 
when  the  other  party  was  also  bound  to  fur- 
nish it  to  a  third  party.  Forsyth  v.  Mann 
Bros.  68  Vt.  116.  34  Atl.  481,  32:  788 

h.  Buyer's  Failure  to  Complete  Purchase. 

For  Editorial  Notes,   see  infra,  V.   §§   5,  8, 
23. 

139.  Physical  impossibility  for  the  seller 
to  tender  goods  at  the  proper  time  will  pre- 
vent his  obtaining  more  than  nominal  dam- 
ages for  breaoli  of  the  contract  by  prior  no- 


tice that  the  purchaser  will  not  accept  the 
goods.  Gerli  v.  Poidebard  Silk  Mfg.  Co.  (iN. 
I.  Err.  &  App.)  57  X.  J.  L.  432.  31  Atl.  401, 

:J0:  fil 

140.  An  abortive  attempt  to  sell  property 
as  prescribed  by  N.  D.  Rev.  Code,  §  4833,  in 
order  to  fix  the  amount  of  liability  of  a  ven- 
dee who  has  broken  his  contract,  will  not 
preclude  the  recovery  of  the  damages  pre- 
scribed by  §  4988,  subd.  2,  and  §  5009. 
Stanford  v.  Magill,  6  N.  D.  536,  72  N.  W.  938, 

38:  760 

141.  The  measure  of  damages  for  a  ven- 
dees' breach  of  an  executory  contract  of 
purchase,  when  the  property  has  not  been 
resold  as  prescribed  by  N.  D.  Rev.  Code,  § 
4833,  is,  under  §  4988,  subd.  2,  the  excess, 
if  any,  of  the  amount  due  from  the  buyer 
under  the  contract  over  the  value  to  the 
seller,  together  with  the  excess,  if  any,  of 
the  expenses  of  marketing  the  property  over 
those  which  would  have  been  incurred  in 
delivering  it  to  the  purchaser;  while  under 
§  5009  the  value  to  the  seller  is  deemed  to 
be  the  price  wliich  he  could  have  obtained 
in  the  market  nearest  the  place  where  it 
should  haw;  been  accepted  by  the  buyer,  and 
at  such  time  after  the  breach  as  would  have 
sufficed,  with  reasonable  diligence,  for  the 
seller  to  effect  a  resale.  Id. 

142.  The  purchase  by  the  vendor,  at  a 
public  auction  sale,  of  a  yacht,  made  after 
the  vendee  has  refused  to  comply  with  his 
contract  to  purchase,  will  not  prevent  the 
price  at  which  the  property  is  struck  off 
from  being  taken  as  the  basis  for  assessing 
the  damages  for  the  breach,  where  the  sale 
is  duly  advertised  and  made  upon  notice  to 
the  vendee.  Ackerman  v.  Rubens,  167  N.  \ . 
405.  60  N.  E.  750,  53:  867 
Manufactured  articles. 

See  also  infra,  638. 

For  Editorial  Notes,  see  infra,  V.  §  23. 

143.  The  difference  between  the  contract 
price  and  the  cost  of  production  is  the  meas- 
ure of  damages  for  breach  of  a  contract  to 
take  a  large  quantity  of  an  article  which 
was  manufactured  in  large  quantities  only 
to  fill  orders,  and  was  perishable  in  its  na- 
ture, so  that  large  quantities  of  it  could  not 
be  kept  in  stock,  while  the  demand  was  lim- 
ited and  it  had  no  market  price,  although 
the  manufacturer  was  able  to  effect  some 
sales  at  a  price  less  than  that  fixed  by  the 
broken  contract.  Todd  v.  (Ramble.  148  N.  Y. 
382,  42  N.  E.  986,  .52:225 

e.  Breach  of  Warranty. 

Recover v  for  Loss  of  Profits,  see  infra.  637. 
Effect  of  Prayer  for  Relief,  see  Pleading.  88. 
For  Editorial  Notes,  see  infra.  V.  §§  5.  23. 

144.  The  fact  that  a  dealer  has  been  fully 
paid  for  an  article  which  he  sold  will  not 
preclude  a  recovery  by  him  from  the  party 
from  whom  he  bought  it,  on  breach  of  war- 
rantv,  to  the  full  extent  of  defects  existing 
in  it.  Western  Twine  Co.  v.  Wright,  11  S. 
D.  521,  78  N.  W.  942,  44:438 

145.  The  measure  of  damages  for  breach 
of  warranty  of  the  capacity  of  a  kiln  for 
drying  lumber  is  not.  when  there  is  no  kiln 


942 


DAMAGES,  IIL  a,  6. 


of  the  agreed  capacity  on  the  market,  the 
difference  between  the  value  of  the  kiln  sold 
and  one  of  the  required  capacity,  but  is  the 
difference  between  the  value  of  the  appara- 
tus delivered  and  the  contract  price.  Huy- 
ett-Smith  Mfg.  Co.  v.  Gray,  129  1^.  C.  438, 
40  N.  E.  178,  57:  193 

Animal  with  infectious  disease. 
See  also  infra,  379. 

146.  A  general  warranty  that  an  animal 
is  sound  and  free  from  disease  is  necessarily 
a  warranty  against  diseases  of  all  kinds,  in- 
cluding those  which  are  infections  or  conta- 
gious, so  as  to  render  the  warrantor  liable 
for  damages  caused  by  the  communication 
of  such  a  disease  to  other  stock  with  which 
the  animals  sold  are  properly  placed  in  the 
ordinary  course  of  business,  and  also  for  such 
other  damages  and  expenses  as  are  the  di- 
rect and  natural  result  of  the  breach  of  war- 
ranty. Joy  V.  Bitzer,  77  Iowa.  73,  41  N.  W. 
575,'  3:184 
Failure  of  seed  to  grow. 

147.  All  the  losses  necessarily  sustained 
by  the  failure  of  seed  to  germinate  may  be 
recovered  in  an  action  for  breach  of  an  im- 
plied warranty  that  it  was  suitable  for  sow- 
ing. Shaw  V.  Smith,  45  Kan.  334,  25  Pac. 
886,  11:  681 

148.  The  measure  of  damages  for  failure 
of  seed  rice  to  grow  when  planted  by  one 
who  purchased  under  a  warranty,  and  who 
did  not  discover  its  worthlessness  until  it 
was  too  late  to  plant  another  crop,  is  the 
amount  paid  for  the  rice,  the  expense  of 
preparing  the  soil  for  the  crop  and  planting 
the  seed,  and  a  reasonable  rent  for  the  land, 
less  such  amount  as  it  might  have  been  rent- 
ed for,  to  be  planted  in  crops  other  than  rice, 
after  it  was  too  late  to  plant  rice.  Keiger 
V.  Worth  Co.  127  N.  C.  230,  37  S.  E.  217, 

52:  .362 
Defects  causing  loss  of  use  of  property. 

149.  The  measure  of  damages  for  furnish- 
ing an  imperfect  and  unskilfully  made  cyl- 
inder for  a  cotton  compress  on  account  of 
the  defects  of  which  an  accident  occurred 
which  caused  the  loss  of  the  use  of  the  com- 
press for  the  entire  season,  is  its  rental 
value, — that  is,  the  value  of  its  use. — during 
that  season,  whore  the  cylinder  was  fur- 
nished under  a  contract  to  have  the  com- 
press ready  for  use  at  a  certain  date,  which 
the  contractor  understood  was  necessary  in 
order  to  have  it  ready  for  compressing  that 
season's  crop  of  cotton.  Livermore  Foun- 
dry &  M.  Co.  v.  Union  Compress  &  Storacre 
Co.  105  Tenn.  187,  58  S.  W.  270.  .■>3:  482 
Defects  causing  personal  injuries. 

1.50.  Damages  for  personal  injuries  caused 
by  the  explosion  of  an  acetylene  gas  machine 
may  be  recovered  in  an  action  for  breach  oi 
warranty  of  its  safety..  Tyler  v.  Moody,  111 
Ky.  191,  63S.  W.  433!         "  54:417 

151.  Damages  which  an  employer  is  com- 
pelled to  pay  for  injuries  to  an  employee 
caused  by  the  explosion  of  a  boiler  are  not 
too  remote  to  be  included  in  the  recovery 
of  damages  against  the  maker  of  the  boiler 
for  breach  of  warranty.  Boston  Woven 
Hose  &  Rubber  Co.  v.  koii<laIl.  178  Mass. 
232.  50  X.  E.  657.  51  :  781 


5.  Of  Employment. 

Punitive,  see  supra,  55. 

Burden  of  Proof  as  to  Opportunity  to  Re- 
duce Damages,  see  Evidence,  228. 
See  also  supra,  137;  infra,  176. 
For  Editorial  Notes,  see  infra,  V.  §§  5,  7. 

152.  One  who  sues  for  breach,  before  the 
time  for  performance  arrived,  of  a  contract 
to  employ  him  as  manager  of  an  opera  house 
for  a  compensation,  to  consist  in  part  of  a 
share  of  the  net  profits,  is  not  entitled  to 
recover  as  damages  a  share  of  the  amount 
for  which  his  employer  disposed  of  the  lease 
subsequent  to  the  time  when  such  employ- 
ment should  have  begun.  Greenwall  Theat- 
rical Circuit  Co.  v.  Markowitz,  97  Tex.  479, 
79  S.  W.  1069,  65:  302 

153.  A  contractor  who,  in  the  prosecution 
of  work  under  his  contract  for  cutting  logs 
and  hauling  and  driving  them  to  a  mill  by 
means  of  a  railroad,  tramroads,  and  booms 
and  dams  in  a  river,  constructed  by  him  for 
the  purpose,  puts  in  timber  to  the  same  mill, 
by  means  of  the  same  improvements,  for 
others,  not  keeping  separate  accounts  of  the 
expenditures,  may  be  allowed,  upon  an  in- 
quiry as  to  the  amount  necessary  to  compen- 
sate him  for  his  services  and  outlay,  when 
he  has  been  prevented  from  completing  his 
contract,  to  charge  up  his  entire  outlay  on 
all  the  work  done,  and  credit  all  sums  re- 
ceived on  account  thereof,  when  it  is  shown 
that  all  the  work  was  profitable  so  far  as  ex- 
ecuted, and  that  the  accounts  cannot  be  sep- 
arated. Griffith  V.  Blackwater  Boom  &  L. 
Co.  55  W.  Va.  604,    48  S.  E.  442,  69:124- 

154.  When  a  contractor,  by  reason  of  the 
termination  of  a  partly  executed  contract, 
is  entitled  to  compensation  for  services  and 
outlay,  part  of  which  have  been  made  in 
effecting  permanent  improvements,  the  serv- 
ice and  expenditures  relating  to  such  im- 
provements are  not  apportioned  between  the 
executed  and  unexecuted  parts  of  the  con- 
tract. Id. 

155.  In  an  action  to  recover  for  part  per 
formance  of  a  contract,  from  the  party  who 
has  rightfully  terminated  the  same,  prima 
facie  the  amount  recoverable  is  the  contract 
rate  for  services  rendered  up  to  the  time  of 
the  discharge;  and  that  will  prevail  in  the 
absence  of  a  claim  for  damages,  properly 
pleaded  as  a  counterclaim  and  established 
on  the  trial.  Hildebrand  v.  American  Fine 
Art.  Co.  109  Wis.  171,  85  N.  W.  268,    53:  826 

156.  Damages  for  breach  of  contract  by 
unlawful  discharge  are  limited  to  such  ae 
are  actually  sustained,  measured  by  the 
wages  and  reasonable  diligence  to  obtain 
other  employment.  Larkin  v.  Hecksher  (N. 
J.  Sup.)   SI'N.  J.  L.  133,   16  Atl.  703, 

3:  137 

157.  The  measure  of  damages  for  the 
wrongful  discharge  of  a  servant  is  the  de- 
ficiency, not  due  to  his  fault,  between  the 
wages  earned  by  him  and  those  which  he 
would  have  earned  under  the  contract.  Mc- 
Mullan  v.  Dickinson  Co.  60  Minn.  1.56,  62  N. 
W.  120,  27:409 

158.  Tlie  amount  to  be  recovered  for  un 
lawful  (lisolia)gc  of  an  employee  is  the  con- 


DAMAGES.   111.  a.  G,  7 


94» 


tract  price  less  what  may  have  been  paid 
him,  and  also  what  he  has  earned  or  by  due 
diligence  might  have  earned  during  the  time 
covered  by  the  contract.  Baltimore  Baseball 
&  E.  Co.  V.  Pickett,  78  Md.  375.  28  Atl.  279, 

22:  690 

159.  To  entitle  an  employee  to  damages 
against  his  employer  for  breach  of  the  con- 
tract by  disposing  of  all  his  property  so 
that  no  more  services  could  be  rendered,  he 
must  show  that  he  has  not  been  able  to  earn 
an  equal  amount  elsewhere.  Busell  Trimmer 
Co.  V.  Coburn.  188  Mas.s.  254.  74  N.  E.  334, 

69:  821 

6.  To     Advance     Money;     Nonpayment     of 
Checks. 

n 

To  advance  money. 
Punitive,  see  supra,  54. 
Presumption  of  Damage  from  Nonpayment, 
see  Evidence,  744. 

160.  The  measure  of  damages  for  breach 
of  an  agreement,  by  one  who  receives  a  con- 
veyance of  real  estate  as  security,  to  ad- 
vance money  to  pay  debts  of  the  grantor 
and  satisfy  liens  upon  his  estate,  is  the 
same  as  for  breach  of  a  contract  to  loan 
money  direct.  Lowe  v.-  Turpie,  147  Ind.  652, 
44  N.  E.  25,  47  N.  E.  150,  37 :  233 

161.  No  more  than  nominal  damages  can 
be  recovered  for  breach  of  a  contract  to  fur- 
nish money  to  pay  off  liens  on  real  estate, 
by  reason  of  which  the  real  estate  is  lost  to 
the  owner,  if  it  does  not  appear  that  the 
owner  did  not  know  of  the  intended  breach 
until  too  late  to  enable  him  to  procure  mon- 
ey elsewhere  to  satisfy  the  lien.  Id. 

162.  That  a  landowner  has  placed  all  his 
property  and  means  of  paying  his  debts  in 
the  hands  of  one  who  has  contracted  to  pay 
such  debts  and  satisfy  the  liens  on  the 
property,  and  is  therefore  unable  to  procure 
money  elsewhere  to  satisfy  such  liens,  will 
not  entitle  him  to  more  than  nominal  dam- 
ages for  refusal  to  carry  out  the  contract  to 
advance  the  money,  by  reason  of  which  the 
property  is  lost.  ^  Id. 

163.  The  measure  of  damages 'for  failure 
to  comply  with  a  contract  to  pay  encum- 
brances on  a  lot,  by  reason  of  which  the 
lots  are  lost,  is  not  the  value  of  the  lots, 
but  only  the  amount  that  was  to  be  paid, 
although  the  title  was  conveyed  to  the  one 
making  the  promise  under  the  agreement 
that  he  was  to  satisfy  the  encumbrances  and 
convey  the  property  to  the  one  bringing  the 
suit.  Id. 
Nonpayment  of  check. 

Mental  Anguish  for,  see  infra,  572. 
Evidence  as  to,  see  Evidence,  1852,  2038. 
For  Editorial  Notes,  see  infra,  V.  §  6. 

164.  For  refusal  of  a  bank  to  pay  a  check 
for  want  of  funds, — especially  if  returned 
through  the  clearing  house, — although  occa- 
sioned by  a  mere  mistake  in  bookkeeping, 
more  than  nominal  damages  may  be  given 
without  any  proof  of  actual  loss  or  damage. 
Schaffner  v.  Ehrman,  139  111.  109,  28  N.  E. 
917,  15:  134 

165.  (jieneral  compensatory  damages,  and 
not  merely  nominal  damages,  may  be  recov- 


ered by  a  merchant  or  trader  for  the  dis- 
honor of  his  check  when  he  had  funds  to 
meet  it.  Svendsen  v.  State  Bank,  64  Minn. 
40,  65  N.  W.  1086,  31 :  552 

166.  Damages  for  wrongful  refusal  of  a 
bank  to  pay  a  check  cannot  include  an  al 
lowance  for  injuries  sustained  by  an  arrest 
and  imprisonment  for  giving  an  alleged 
fraudulent  check  and  the  publication  of  the 
fact,  as  these  are  not  the  natural  result  of 
the  refusal  to  pay  the  check.  Bank  of  Com 
merce  v.  Goos,  39  Neb.  437,  58  N.  W.  84, 

23:  190 

167.  A  student  in  a  strange  city  may  re- 
cover, as  damages  for  wrongful  refusal  to 
honor  a  check  given  in  payment  for  instruc- 
tion and  materials,  for  any  time  lost,  or  any 
expenses  incurred,  or  any  loss  of  business  or 
instruction  sustained  l>ecause  of  such  dis- 
honor. American  National  Bank  v.  Morey, 
113  Ky.  857,  69  S.  W.  759,  58:  95<5 

7.  Liquidated  Damages. 

In  Liquor  Bond,  see  Bonds,  20. 

See  also  supra,  109. 

For  Editorial  Notes,  see  infra,  V.  §§  2,  28. 

168.  Damages  will  be  regarded  as  liquidat- 
ed when  they  may  be  sustained  by  the 
breach  of  a  single  stipulation,  and  are  un- 
certain in  amount,  not  readily  susceptible  of 
proof,  and  the  parties  have  agreed  upon  the 
sum  as  compensation  for  such  breach,  and 
this  is  not  disproportionate  to  the  presum- 
able loss.  Wallis  Iron  Works  v.  Monmouth 
Park  Asso.  (N.  J.  Err.  &  App.)  56  N.  J.  L. 
132,  26  Atl.  140,  19:  456 

169.  Stipulation  for  the  payment  of  $200 
as  liquidated  damages  on  the  breach  of  any 
of  several  promises  and  agreements  which 
are  of  varying  degrees  of  importance,  and 
the  damages  for  the  breach  of  some  of  which 
would  be  easily  ascertainable,  must  be  con- 
strued as  a  penalty.  Wilhelm  v.  Eaves,  21 
Or.  194,  27  Pac.  1053,  14:  297 

170.  The  sum  of  $500  stipulated  "as  liqui- 
dated and  ascertained  damages  for  the 
breach"  of  a  contract  to  build  a  wall,  or,  at 
the  contractor's  option,  to  remove  a  house 
3  feet  and  put  it  in  as  good  condition  as  be- 
fore, the  cost  of  which  would  not  exceed 
$100,  must  be  held  to  be  a  penalty,  and  not 
liquidated  damages.  Condon  v.  Kemper,  47 
Kan.  126,  27  Pac.  829,  13:  671 

171.  Before  any  liability  to  pay  liquidated 
damages  can  attach  to  the  party  in  default, 
he  must  have  been  guilty  of  a  substantial 
breach  of  his  agreement,  resulting  in  some 
thing  more  than  mere  nominal  damages  i.o 
the  other  party.  Hathaway  v.  Lynn,  75 
Wis.   186,  43  N.  W.  956,  6:  551 

172.  Where  one  binds  himself  under  seal 
to  the  well  and  true  payment  of  a  certain 
sum  of  money  monthly  during  the  good  be- 
havior of  another,  under  a  penalty  of  $5,000. 
the  instrument  constitutes  a  good  penal 
bond,  and  the  $5,000  is  a  penalty,  and  not 
liquidated  damages.  Carey  v.  Mackey.  82 
Me.  516,  20  Atl.  84.  9:  113 

173.  A  contract  to  pay  a  stipulated  sum 
as  damages  will  be  given  effect  only  when- 
the  damages  provided  against  are  uncertain 


914 


DAMAGES,  III.  b. 


and  hot  ascertainable  by  any  satisfactory 
and  certain  rule  of  law.  Kriitz  v.  Robbing, 
12  Wash.  7,  40  Pac.  415,  28:  676 

174.  The  larger  sum  will  be  held  a  penal- 
ty, and  not  liquidated  damages,  where  the 
payment  of  a  smaller  sum  is  secured  by  an 
agreement  to  pay  the  larger.  Id. 

175.  A  contract  that  in  case  of  the  wrong- 
ful use  of  electrotype  plates  the  purchaser 
shall  be  responsible  for  the  damages  caused 
the  seller,  and  shall  pay  a  fine  to  him  "equal 
to  the  tenfold  price  of  the  wrongly  used 
electrotypes,"  provides  for  a  penalty,  and 
not  liquidated  damages,  which  cannot  be  en- 
forced under  the  Massachusetts  law  beyond 
the  actual  damages  caused  bv  the  breach. 
Mever  v.  Estes.  164  Mass.  457,"  41  N.  E.  683, 

32:  283 
For  quitting  service. 

176.  A  stipulation  that  the  damages  for 
breach  of  contract  in  quitting  the  service  of 
a  contractor  for  loading  and  unloading  ves- 
sels and  cars  upon  docks  shall  be  the  loss  of 
fifteen  days'  wage.?  is  justified  by  the  uncer- 
tainty as  to  the  injury  that  may  be  caused 
therebv  to  the  employer's  business.  Fisher 
V.  Walsh,  102  Wis.  172,  78  N.  W.  437, 

43:  810 

177.  A  stipulation  for  $10  liquidated  dam- 
ages in  case  an  employee  earning  from  50 
cents  to  $1  per  day  in  a  cotton  mill  divided 
into  many  departments  and  employing  hun- 
dreds of  hands  should  fail  to  give  two  weeks' 
notice  before  quitting  will  not  be  regarded 
as  a  penalty,  where  each  department  of  the 
mill  is  dependent  on  the  one  immediately 
below  it,  so  that  there  would  be  a  certainty 
of  some  damage,  the  amount  of  which  could 
not  be  exaetlv  ascertained.  Tennessee  Mfg. 
Co.  V.  James."  91  Tenn.  154.  18  8.  W.  262, 

15:211 
For  delay  in  completing  contract. 

178.  The  sum  of  $100  a  day  for  default  in 
completion  of  a  grand  stand  for  a  race 
course,  which  is  expressly  fixed  by  the  con- 
tract as  the  measure  of  damages  which  the 
parties  would  suff'er,  and  not  by  way  of  pen- 
alty, will  be  regarded  as  liquidated  damages. 
Wallis  Iron  Works  v.  Monmouth  Park  Asso. 
fN.  J.  Err.  &  App.)  55  N.  J.  L.  132,  26  Atl. 
140,  19:456 

179.  A  stipi'lation  for  a  certain  sum  as 
damages  for  failure  to  comply  with  a  con- 
tract to  remove  a  building  by  a  certain  time 
will  be  construed  as  »  penalty  and  the  re- 
covery limited  to  the  damages  actually  suf- 
fered, although  the  bond  expressly  provides 
that  the  sum  named  shall  be  liquidated  dam- 
ages, and  not  a  penalty,  M'here  it  would  not 
be  difficult  or  impossible  to  assess  the  actual 
damages  from  the  testimony  given, — cspo- 
cially  under  a  statute  providing  that,  in 
suits  to  recover  a  forfeiture  which  appears 
by  default  or  confession  or  upon  demurrer, 
the  court  shall  render  judgment  for  so  much 
Hs  is  due  according  to  equity.  Chicago 
House-Wrecking  Co.  v.  United  States.  45 
r.  r.  A.  .343,  106  Fed.  385,  5.3:  122 

180.  The  stipulated  amount  to  be  paid  by 
:in  elect  lie  company  to  the  city  under  a 
hoiid  r(M|uirinu'  it  to  complete  the  installa- 
tion   of    its    plant,    for   which    the    city   lias 


granted  the  use  of  its  streets,  withm  a  speci- 
fied time,  will  be  regarded  as  liquidated  dam- 
ages, so  that  the  whole  amount  must  ue 
paid  in  case  of  failure  to  meet  the  require- 
ment, although  the  city  proves  no  actual 
damage.  Salem  v.  Anson,  40  Or.  339,  67 
Pac.  190,  56:  169 

181.  A  provision  for  the  retention  of  15 
cents  per  100  feet  from  the  contract  price 
of  logs  to  be  cut  and  delivered,  upon  all  logs 
not  delivered  by  a  specified  date,  will  be  re- 
garded as  one  for  liquidated  damages,  and 
not  as  a  penalty,  since  the  actual  damage 
sustained  by  depreciation  in  the  value  of 
the  logs  on  account  of  delayed  delivery  can- 
not be  determined  by  any  known  rule.  Kil- 
bourne  v.  Burt  &  B.  Lumber  Co.  Ill  Ky.  693, 
64  S.  W.  631,  55:  275 
Breach    of    covenant    against    engaging    m 

business. 

182.  "The  penalty  of  $5,000  which  is  here- 
by named  as  stipulated  damages"  for  viola- 
tion of  a  covenant,  made  on  the  sale  of  a 
business,  not  to  reveal  a  secret  process  or 
use  trademarks  belonging  to  the  business, 
is  to  be  regarded  as  stipulated  damages, 
notwithstanding  the  use  of  the  word  "pen- 
alty." Tode  V.  Gross,  127  N.  Y.  480,  28  N. 
E.  469,  .  13:  652 

183.  A  covenant  to  pay  $2,000  if  one  re- 
turns to  practise  his  profession  in  a  certain 
place  while  another  is  practising  there  is 
imported  by  an  express  covenant  never  to 
practise  there  so  long  as  the  other  does,  but 
providing  that  the  covenantor  shall  have  the 
right  to  do  so  after  five  years  by  paying 
such  sum,  "but  not  otherwise."  The  sum 
named  is  not  liquidated  damages  or  a  pen- 
alty, but  a  price  fixed  for  what  the  contract 
permits  if  the  money  is  paid.  Smith  v.  Ber- 
gengren,  153  Mass.  236.  26  N.  E.  690. 

10:  768 

184.  A  clause  binding  one  "in  the  penal 
sum  of  $400"  for  the  true  performance  f  an 
agreement  not  to  practise  medicine  within 
a  certain  place  for  ten  years  will  be  regarded 
as  a  penalty,  and  not  as  liquidated  damages, 
where  there  is  nothmg  in  the  nature  of  the 
contract  or  the  circumstances  to  show  the 
contrary  intent.  Wilkinson  v.  Colley,  164 
Pa.  35,  30  Atl.  286,  26:114 

b.  For  Telegrams. 

Punitive  Damages  for,  eee  supra,  86. 
For  Libelous  Telegram,  see  infra,  292,  293. 
Mental  Anguish  for,  see  infra.  III.  o,  2.  6. 
Recovery  of  Counsel  Fees,  see  infra,  654, 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

100.  101. 
Presumption  as  to,  see  Evidence.  251. 
Burden  of  Proving  Damages,  see  Evidence, 

208. 
.As  to  Telegrams  Generally,  see  Telegrams, 

II. 
See  also  infra,  293. 
For  E<litorial  Notes,  see  infra,  V.  §§  0.  22. 

185.  The  sendee's  damages  for  failure  to 
promptly  deliver  a  telegram  are  limited  to 
wliat  might  reasonably  have  been  in  contem- 
plation of  the  parties,  but  will  include  com- 
pensation for  all  injurious  results  which  flow 


DAMAGES.  III.  b. 


945 


therefrom  by  ordinary  natural  sequence 
without  the  interposition  of  any  other  negli- 
gent act  or  overpowering  force.  McPeek  v. 
Western  U.  Teleg.  Co.  107  Iowa,  356,  78  M. 
W.  63,  43:  214 

Summoning  physician. 
Recovery  for  Mental  Anguish,  see  infra,  595- 

597. 
Evidence  as  to,  see  Evidence,  1856. 

186.  Even  though  there  was  negligence 
on  the  part  of  the  servants  of  a  telegraph 
company  in  delivering  a  message  calling  a 
physician  to  attend  a  patient,  yet,  if  it  could 
not  have  been  delivered  in  time  for  him  to 
have  rendered  any  assistance,  no  damages 
can  be  recovered.  Western  U.  Teleg.  Co.  v. 
Cooper.  71  Tex.  507,  9  S.  W.  598,         1:  728 

187.  Substantial  damages  may  ]pe  given 
for  breach  of  a  contract  to  transmit  prompt- 
ly a  telegram  which  the  company  knew  to 
be  addressed  to  a  physician  and  to  .direct 
him  to  come  to  the  sender's  house  at  once. 
Western  U.  Teleg.  Co.  v.  Church,  3  Neb. 
(Unof.)  22,  90  N.  W.  878,  57:  905 

188.  Damages  for  breach  of  a  contract 
promptly  to  transmit  and  deliver  a  telegram 
from  a  sick  person  summoning  his  physician 
"at  once"  may  include  an  allowance  for  the 
pain  and  suffering  endured  during  the  phy- 
sician's absence  because  of  such  breach.      Id. 

189.  An  award  of  $950  damages  is  not  ex- 
cessive where,  on  account  of  the  failure  of  a 
telegraph  company  to  transmit  and  deliver 
a  telegram  summoning  a  physician,  a  wom- 
an was  left  in  labor  for  thirty  minutes,  with 
the  child  partly  born,  which  resulted  in  the 
death  of  the  child  and  great  pain  of  body 
and  mind  to  the  woman.  Id. 
Announcing  illness. 

Recovery  for  Mental  Anguish,  see  infra,  600- 
605. 

Evidence  as  to,  see  Evidence,  2114. 

Sufficiency  of  Notice  of  Contents,  see  Tele- 
graphs, 62-64. 

190.  A  verdict  for  the  sum  of  $4,500.25  for 
failure  to  deliver  a  telegram  telling  a  person 
to  come  home  because  his  child  is  worse  is 
excessive.  Western  U.  Teleg.  Co.  v.  Hough- 
ton, 82  Tex.  561,  17  S.  W.  846,  15:  129 
Business  telegrams  generally. 
Sufficiency  of  Notice  of  Contents,  see  Tele- 
graphs, 67-70. 

See  also  supra,  14. 

191.  The  loss  by  reason  of  not  shipping 
property  which  would  have  been  shipped  if 
a  telegram  had  been  delivered  within  a  rea- 
sonable time  may  be  recovered  as  damages 
for  the  delay  in  its  delivery.  Western  U. 
Teleg.  Co.  v.  Eubank,  100  Kv.  591,  38  S.  W. 
1068.  ■  36:  711 

192.  The  difference  l>etween  the  price  at 
which  property  was  offered  and  its  actual 
market  value  at  the  time  when  a  telegram 
accepting  the  offer  sliould  have  been  deliv- 
ered may  be  recovered  against  a  telegraph 
company  for  failure  to  deliver  the  message 
within  a  reasonable  time,  although  notified 
of  its  importance,  in  consequence  of  which 
the  sender  of  the  message  lost  the  purchase. 
Alexander  v.  Western  U.  Teleg.  Co.  66  ivuss. 
161,  5  So.  397,  3:  71 

193.  Change  of  the  stated  price  in  a  tele- 
L.E.A.  Dig.— 60. 


gram  intended  to  notify  a  purchaser  of  the 
market  price  of  mules,  so  as  apparently  to 
quote  them  at  $10  a  head  less  than  their 
market  price,  which  results  in  the  sendee's 
directing  the  purchase  of  a  certain  number 
on  his  account,  will  render  the  telegraph 
company  liable  for  the  difference  in  the  price 
paid  and  that  stated  in  the  telegram  as  de- 
livered. Hays  V.  Western  U.  Teleg.  Co.  /O 
S.  C.  16,  48  S.  E.  608,  67:  481 

194.  The  measure  of  damages  against  a 
telegraph  company  for  failure  to  deliver  a 
message  regarding  the  state  of  the  market 
at  a  certain  point,  whereby  a  live  stock  ship- 
per is  induced  to  send  his  stock  to  a  market 
point  more  distant  than  that  first  intended, 
and  sells  at  a  lower  price  than  would  have 
been  obtainable  in  the  nearer  market,  is  the 
difference  in  prices  at  the  two  market  points, 
with  the  difference  in  freight  added.  West- 
ern U.  Teleg.  Co.  v.  Collins,  45  Kan.  88,  25 
Pac.  187,  10:  515 

195.  The  measure  of  damages,  where  the 
negligent  delay  of  a  telegraph  company  in 
the  delivery  of  a  message  results  in  the  loss 
to  the  sender  of  a  sale  of  a  quantity  of  corn 
at  a  price  above  the  market  value  of  the 
com  at  the  time  and  place  it  would  have 
been  delivered  had  such  a  sale  been  made, 
is  the  difference  in  value  between  the  price 
the  corn  would  have  brought  had  the  sale 
been  made,  and  the  market  value  of  the  corn 
at  such  time  and  place  of  delivery,  although 
it  was  finally  disposed  of  at  a  higher  price 
owing  to  an  advance  in  the  market  price. 
Western  U.  Teleg.  Co.  v.  Nve  &  Schneiaer 
Grain  Co.  70  Neb.  251,  97  N.  W.  305, 

63:  80.? 

196.  Where,  owing  to  a  mistake  in  the 
transmission,  the  price  of  a  commodity  was 
quoted  as  less  than  the  true  price,  whereuj)- 
on  it  was  ordered  by  and  shipped  to  the 
party  inquiring,  and  thereafter  the  seller, 
upon  discovering  the  mistake,  accepted  the 
price  quoted  in  the  telegram  and  sued  the 
company  for  the  difference  between  that 
and  the  true  price,  the  seller  is,  in  the  ab- 
sence of  evidence  of  the  market  price  at 
either  the  place  of  sending  or  receiving  the 
goods,  or  of  the  freight  rates  between  these 
points,  entitled  to  recover  such  difference 
from  the  company.  Pepper  v.  Western  U. 
Teleg.  Co.  87  Tenn.  554,  11  S.  W.  783, 

4:  660 

197.  The  damages  recoverable  by  one  who 
gets  a  telegram  for  a  mistake  in  understat- 
ing the  price  in  an  offer  to  sell  goods  are 
limited  to  such  difference  in  price,  excluding 
any  loss  of  profits  on  a  contract  of  resale 
which  he  made  on  the  faith  of  the  telegram 
but  failed  to  carry  out  because  he  had  him- 
self refused  to  receive  the  goods  without  any 
excuse  except  his  disappointment  by  the 
mistake  in  the  price.  Fcrerro  v.  Western 
U.  Teleg.  Co.  9  App.  D.  C.  455,         35:  548 

198.  The  difference  between  the  actual 
market  value  of  a  lot  and  the  price  received 
is  the  measure  of  damages  for  a  mistake  in 
the  transmission  of  a  telegram  which  is  not 
in  cipher,  to  an  agent  by  which  a  lower  price 
is  named  to  him  than  that  stated  by  the 
principal,  and  in  reliance  upon  which  he  ex- 


946 


DAMAGES,  III.  c,  1. 


ecutes   the  contract.     Reed  v.  Western   U. 
Teleg.  Co.   135  Mo.  661,  37  S.  W.  904, 

34:  492 

199.  Loss  of  business  and  customers  by  a 
produce  dealer  as  an  indirect  result  of  his 
failure  to  perform  a  contract  is  too  remote 
and  speculative  for  consideration  as  an  ele- 
ment of  damages  recoverable  from  a  tele- 
graph company  for  its  negligent  alteration 
of  a  telegram  in  the  course  of  transmission, 
which  was  the  cause  of  his  inability  to 
carry  out  his  contract.  Fererro  v.  Western 
U.  Teleg.  Co.  9  App.  D.  C.  455,         35:  548 

200.  The  measure  of  damages  for  failure 
to  notify  one  who  delivers  a  message  to  a 
telegraph  company  for  transmission,  advis- 
ing the  sendee  to  purchase  certain  stock,  oi 
the  fact  that  it  cannot  be  transmitted  be- 
cause of  obstruction  of  the  line,  is  the  differ- 
ence between  what  the  stock  could  have 
been  purchased  for  had  the  message  been 
promptly  sent  and  what  was  paid  for  the 
stock  under  the  belief  that  the  advice  related 
to  conditions  at  the  time  the  message 
reached   the  sendee.     Swan   v.   Western  U. 

.  Teleg.  Co.  63  C.  C.  A.  550,  129  Fed.  318, 

67:  153 
Announcing  time  of  trial. 

201.  ihe  measure  of  damages  for  failure 
to  deliver  as  written  a  telegraph  message 
notifying  a  witness  of  the  day  the  case  is  set 
for  trial,  and  delivering  one  in  place  thereof, 
naming  a  day  so  much  earlier  that,  upon  ar- 
riving at  the  place  of  trial,  he  returns  home 
to  await  the  arrival  of  the  true  date,  is 
'lis  expenses  in  going  to  and  returning  from 
■he  place  of  trial  and  the  value  of  the  time 
lost.  Losses  resulting  from  the  stoppage 
of  his  business,  such  as  salaries  of  men,  cost 
of  keeping  teams  and  the  value  of  their 
services,  and  anticipated  profits,  cannot  be 
lecovered  unless  the  company  was  notified 
that  such  losses  would  follow  a  failure  cor- 
rectly to  deliver  the  message.  Western  U. 
Teleg.  Co.  v.  Short,  53  Ark.  434,  14  S.  W. 
649,  9:  744 
Causing  loss  of  reward. 

See   also   infra,   248. 

202.  Damages  for  failure  to  promptly  de- 
liver a  telegram  advising  the  sendee  of  the 
whereabouts  of  a  fugitive  from  justice  may 
include  loss  of  a  reward  offered  for  the  cap- 
ture, although  the  message  did  not  contain 
such  information  on  its  face,  if  the  company 
knew  that  it  was  important  and  that  the 
sendee  was  expecting  a  message  relating  to 
such  capture,  and  although  neither  the  com- 
pany nor  the  sendee  knew  at  the  time  of  the 
offer  of  reward,  since  the  company  was 
charged  with  knowledge  that  the  reward 
might  be  made  and  that  negligence  might 
result  in  its  loss.  McPeek  v.  Western  U. 
Teleg.  Co.  107  Iowa,  356,  78  N.  W.  63, 

43:  214 
Telegram  asking  for  money. 
Mental  Anguish  for  Delay  in  Transmitting 
Money  by  Telegraph,  see  infra,  606. 

203.  A  telegraph  company  which  negli- 
gently fails  to  deliver  a  telegram  from  one 
in  a  strange  city  a  long  distance  from  home, 
askin<^  for  money,  by  reason  of  wnich  fail- 
ure he  is  compelled  to  attempt  to  make  the 


journey  on  foot,  is  liable  for  the  price  of  the 
tdegram,  compensation  for  time  lost,  price 
of  meals,  and  lodging  during  the  time  he 
is  en  route,  and  damages  for  the  mental 
worry  and  distress  accompanying  the  phys- 
ical fatigue  and  exertion  caused  by  the 
journey.  Barnes  v.  Western  U.  Teleg.  Co. 
27  Nev.  438,  76  Pac.  931,  65:  666 

204.  The  rule  that,  for  breach  of  contract, 
damages  may  be  recovered,  which  may  be 
supposed  to  have  been  contemplated  by  the 
parties  thereto,  renders  a  telegraph  company 
liable  for  the  hardship  and  suffering  endured 
by  a  minor  who  is  compelled  to  attempt  to 
walk  home  in  the  winter  time  by  the  failure 
of  the  company  to  deliver  a  telegram  asking 
for  aid,  where  the  company  is  informed  that 
he  is  without  money  in  a  strange  city,  400 
miles  from  home.  Id. 

205.  Four  hundred  dollars  is  not  excessive 
as  damages  to  be  awarded  to  a  minor  who 
is  compelled  to  find  his  way  home  on  foot 
during  the  winter,  after  being  left  without 
means  in  a  strange  city,  400  miles  from 
home,  by  the  negligent  failure  of  a  telegraph 
company  to  deliver  a  telegram.  Id. 
Cipher  telegrams. 

What  is  a  Cipher  Telegram,  see  Telegraphs, 

65. 
For  Editorial  Notes,  see  infra,  V.  §  22. 

206.  The  measure  of  damages  for  delay  in 
delivering  a  cipher  telegram  is  limited  to  the 
amount  paid  for  its  transmission.  Fergu- 
son V.  American  Teleg.  Co.  178  Pa.  377, 
35  Atl.  979,  "  35:554 

207.  For  breach  of  a  contract  to  transmit 
or  deliver  an  unexplained  cipher,  or  other- 
wise unintelligible  message,  a  telegraph  com- 
pany is  liable  only  for  nominal  damages,  or, 
at  most,  for  the  sum  paid  it  for  transmis- 
sion and  delivery.    Western  U.  Teleg.  Co.  v. 

.Wilson,  32  Fla."  527,   14  So.   1,  22:434 

208.  A  telegram  reading:  "Fifty-five 
cents,  usual  terms,  quick  acceptance,"— is 
not  within  the  rule  restricting  the  damages 
for  negligent  alteration  of  a  telegram  in  the 
course  of  transmission  to  the  sum  paid  for 
the  message,  and  excluding  consequential 
damages,  where  the  telegram  is  in  cipher 
or  in  language  unintelligible  to  the  company 
and  its  operators.  Fererro  v.  Western  U. 
Teleg.  Co.  9  App.  D.  C.  455,  35:548 

209.  The  rule  restricting  damages  for  a 
negligent  alteration  of  a  telegram  in  the 
course  of  transmission,  to  the  sura  paid  for 
the  message,  and  excluding  consequential 
damages  if  the  message  was  in  cipher  or  in 
language  unintelligible  to  the  company  and 
its  operators,  does  not  apply  where  the  face 
of  the  message  clearly  shows  that  a  busi- 
ness transaction  is  contemplated,  and  that 
negligence  in  its  transmission  may  reason- 
ably be  attended  with  pecuniary  loss,  al- 
though it  does  not  disclose  the  full  mean- 
ing oit  the  sender.  Id. 

c.  Expulsion  of,  or  Failure  in  Duty  to.  Pas- 
senger. 

1.    In  General. 

Punitive  Damages  for,  see  supra,  61-71,  82- 
84. 


DAMAGES,  III.  c,  2. 


947 


Recovery  for  Mental  Anguish,  see  infra,  III. 
o,  2,  c. 

Extraterritorial  Effect  of  Law  Fixing  Maxi- 
mum and  Minimum  Fine  for  Causing 
Death  of  Passenger,  see  Conflict  of 
Laws,  228. 

See  also  infra,  311,  330,  345,  366. 

For  Editorial  Notes,  see  infra,  V.  §§  5,  10. 

210.  Damages  for  the  refusal  to  permit  a 
passenger  to  take  a  train  which  hia  ticket 
entitled  him  to  take  include  the  amount  paid 
by  him  for  another  ticket,  compensation  for 
loss  of  time,  necessary  hotel  expenses,  anu 
also  compensation  for  any  inconvenience 
suffered.  Northern  C.  R.  Co.  v.  O'Conner,  76 
Md.  207,  24  Atl.  449,  16:  449 

211.  The  measure  of  damages  for  physical 
and  mental  injuries  received  by  being 
wrongfully  compelled  to  ride  in  a  second- 
class  car  must  largely  depend  on  the  discre- 
tion of  the  court  or  jury  trying  the  cause. 
St.  Louis,  A.  &  T.  R.  Co.  v.  Mackie,  71  Tex. 
491,  9  S.  W.  451,  1:  667 
Assault. 

Punitive  Damages  for,  see  supra,  64,  72-75. 
See  also  infra,  270. 

212.  Twenty-five  hundred  dollars  is  not 
an  excessive  award  against  a  street  car  com- 
pany for  the  act  of  its  conductor  in  striking 
a  passenger  several  times  in  the  face  merely 
because,  in  order  to  stop  the  car,  he  pulled 
the  bell  rope  so  hard  as  to  break  it.  Birm- 
ingham R.  &  E.  Co.  V.  Baird,  130  Ala.  334, 
30  So.  456,  54:  752 

213.  Where  a  conductor  of  a  train  refuses 
to  recognize  an  excursion  ticket  in  the  hands 
of  the  holder,  who  is  thereby  entitled  to  ride 
thereon,  and  demands  of  him  the  regular 
fare,  and  attempts  to  eject  him  by  force 
for  nonpayment  thereof,  the  railway  com- 
pany is  liable  in  damages  for  the  assault, 
and  the  jury  in  assessing  the  damages  may 
consider  in  connection  therewith  the  annoy- 
ance, vexation,  and  indignity  suffered  by 
him.  Carsten  v.  Northern  P.  R.  Co.  44  Minn. 
454.  47  N.  W.  49,  9:  688 
Arrest. 

214.  Ten  dollars  is  a  sufficient  compensa- 
tion for  a  passenger's  injured  pride,  wounded 
sensibility,  and  mortification  caused  by  pub- 
lic arrest,  where  it  was  procured  by  a  con- 
ductor in  the  belief  that  the  passenger  was 
fraudulently  evading  payment  of  fare,  when 
he  in  fact  tendered  a  valid  mileage  ticket, 
but  unreasonably  refused  to  state  whether 
the  name  on  the  ticket  was  his  own.  Palmer 
V.  Maine  C.  R.  Co.  92  Me.  399,  42  Atl.  800, 

44:  673 
Abuse  by  fellow  passengers. 

215.  A  verdict  for  $1,000  is  not  excessive 
in  favor  of  a  colored  man  against  a  railroad 
company,  where  drunken  passengers  made 
him  dance  and  sing  and  subjected  him  to 
many  indignities,  while  the  conductor  re- 
fused to  interfere.  Richmond  &  D.  R.  Co. 
V.  Jefferson,  89  Ga.  554.  16  S.  E.  69,  17:  571 
Carrying  beyond  station. 

216.  A  verdict  for  $2,000  is  excessive 
where  the  only  injury  was  carrying  a  young 
lady  passenger  IV2  miles  beyond  her  station, 
and  telling  her  in  a  loud  tone  that  she  must 
get  off,  which  made  it  necessary  for  her  to 


walk  back  along  the  track  and  part  of  the 
way  through  the  woods,  where  it  was  on  a 
pleasant  day  and  she  was  in  the  habit  of 
walking  a  great  deal.  Chattanooga.  R.  & 
C.  R.  Co.  V.  Lyon,  89  Ga.  16,  15  S.  E.  24, 

15:  857 

217.  A  judgment  for  $3,005  damages  in 
favor  of  a  woman  who  was  carried  past  her 
station  on  a  railroad  train,  in  consequence 
of  which  she  was  obliged  to  walk  between 
1  and  2  miles,  carrying  a  large  bundle  and 
valise,  and,  by  the  exertion  and  excitement 
thereby  caused,  was  made  sick  for  several 
days,  and  who  was  treated  in  an  insulting 
manner  by  the  railroad  employees,  will  not 
be  set  aside  as  excessive  where  substantially 
the  same  amount  has  been  given  on  a  former 
trial,  i^ouisville  &  N.  R.  Co.  v.  Ballard,  88 
Ky.  159,  10  S.  W.  429,  2:  694 
Requiring  change  of  sleepers  without  dress- 
ing. 

Instruction  as  to,  see  Trial,  766. 

218.  A  verdict  of  $2,500  for  injury  to  a 
woman  passenger  forced  to  make  a  change 
of  sleepers  without  being  allowed  time  to 
dress,  in  consequences  of  which  she  suffered 
a  miscarriage,  is  not  so  excessive  as  to  cre- 
ate belief  that  the  jury  were  misled  by  pas- 
sion, prejudice,  or  ignorance,  and  to  require 
a  new  trial.  MeKeon  v.  Chicago,  M.  &  St. 
P.  R.  Co.  94  Wis.  477,  69  N.  W.  175,  35:  252 

2.  Ejection. 

Punitive  Damages  for,  see  supra,  76-81. 
Recovery  for  Mental  Anguish,  see  infra,  609, 

610. 
See  also  supra,  18;  Carriers,  377. 
For  Editorial  Notes,  see  infra,  V.  §§  10,  26. 

219.  The  measure  of  damages  for  wrong- 
ful ejection  from  a  street  car  is  not  limited 
to  the  price  of  a  ticket  for  another  fare 
which  plaintiff  had  in  his  possession  and 
might  have  used,  where  the  conductor,  in- 
stead of  ascertaining  definitely  whether  or 
not  plaintiff  had  paid  his  fare,  which  might 
have  been  done  by  a  few  moments'  investi- 
gation, charged  him  with  attempting  to  beat 
the  company,  and  thus  placed  him  in  a  posi- 
tion where  the  use  of  another  ticket  would 
be  an  apparent  admission  of  the  charge. 
Sprenger  v.  Tacoma  Traction  Co.  15  Wash. 
660,  47  Pac.  17,  43:  706 

220.  Damages  for  unnecessary  violence  in 
ejecting  a  passenger  from  a  train  for  non- 
payment of  fare  cannot  include  compensa- 
tion for  his  inconvenience  in  having  to  make 
his  way  back  to  a  station  in  the  nighttime, 
or  for  his  suffering  or  sickness  from  expos- 
ure. Texas  &  P.  R.  Co.  v.  James,  82  Tex. 
306,  18   S.  W.   589,  15:  347 

221.  A  passenger  wrongfully  expelled  from 
a  train  is  entitled  to  recover  not  only  the 
money  he  has  paid  out  necessarily  in  ex- 
penses thereby  caused,  but  the  value  of  the 
time  lost,  and  compensation  for  the  pain 
and  suffering  consequent  upon  his  removal, 
and  any  permanent  or  continued  injury  oc- 
casioned thereby.  Paddock  v.  Atchison.  T. 
&  S.  F.  R.  Co.  .37  Fed.  841,  4:  231 

222.  In  an  action  for  ejection  of  a  passen- 
ger, damages  resulting  from  the  loss  of  a 


948 


DAMAGES.  III.  d. 


job  of  work,  occasioned  by  his  delay  at  the 
station  at  which  he  was  obliged  to  leave  the 
train,  are  too  remote  to  be  considered. 
Carsten  v.  Northern  P.  R.  Co.  44  Minn.  454, 
47  N.  W.  49,  9:  688 

223.  Paroxysms  of  the  nervous  system, 
caused  by  the  indignity  and  humiliation  suf- 
fered by  a  passenger  on  being  wrongfully 
ejected  from  a  train,  constitute  a  bodily  in- 
jury for  which  damages  are  recoverable. 
Sloane  v.  Southern  Cal.  R.  Co.  Ill  Cal.  668, 
44Pac.  320,  32:193 
Instances  of  amounts. 

224.  Twenty-five  dollars  is  not  excessive 
damages  for  ejecting  a  passenger  a  mile  or 
two  from  a  station  in  the  night,  when  a 
slight  rain  is  falling  and  he  is  suffering 
some  from  fever.  St.  Louis  S.  W.  R.  Co. 
V.  Harper,  6!)  Ark.  186,  61  S.  W.  911,  53:  220 

225.  A  verdict  assessing  damages  at  $300 
for  the  wrongful  expulsion  of  a  passenger 
from  a  train  from  V^  to  %  of  a  mile  from  a 
station  will  not  be  disturbed  on  appeal  as 
excessive.  Phettiplace  v.  Northern  P.  R.  Co. 
84  Wis.  412,  54  N!  W.  1092,  20:  483 

226.  A  verdict  of  $450  for  wrongful  ejec- 
tion of  a  passenger  from  a  train  is  not  so 
excessive  as  to  warrant  a  reversal  of  the 
judgment,  where  he  explained  to  the  con- 
ductor that  the  failure  to  have  his  ticket 
signed  and  stamped  as  required  by  a  condi- 
tion thereon,  because  of  which  he  was  ex- 
pelled, was  due  to  the  fault  of  the  company 
in  not  having  present  at  the  station  an 
agent  authorized  to  so  validate  the  ticket, 
and  he  was  ejected  from  the  train  in  the 
early  hours  of  a  dark,  rainy  morning,  at  a 
place  with  which  he  was  unfamiliar,  4  miles 
from  the  station  where  he  boarded  the  train, 
and  after  having  offered  to  secure  with  a 
diamond  ring  the  payment  of  his  fare. 
Southern  R.  Co.  v.  Wood.  114  Ga.  140.  39 
S.  E.  894,  55:536 

227.  A  verdict  for  $2,500  for  ejectment 
from  a  train  wrongfully  but  without  malice, 
where  the  passenger  boarded  a  construction 
train  and  returned  a  distance  of  2  miles  to 
the  depot,  is  excessive.  Louisville  &  N.  R. 
Co.  v.  Wilsey,  11  Ky.  L.  Rep.  419  (Not  to  be 
Rop.)  12  S.  W.  275.  5:  855 

228.  Three  hundred  dollars  damages  is  ex- 
cessive for  putting  a  passenger  off  a  train 
for  attempting  to  ride  after  the  time  limited 
on  the  ticket  has  expired,  although  the  limi- 
tation was  unlawful,  if  no  force  was  used, 
or  purpose  to  humiliate  was  shown,  and  the 
passenger  was  within  a  few  miles  of  his  des- 
tination, which  he  reached  without  further 
outlay  only  five  hours  later  than  he  would 
liad  the  train  carried  him.  Louisville  &  N. 
R.  Co.  v.  Turner.  100  Tcnn.  213,  47  S.  W. 
223,  43:  140 

229.  A  verdict  for  $1,400  for  the  ejection 
of  a  woman  from  a  train,  which  obliged  her 
to  walk  about  a  mile  and  caused  a  recur- 
rence of  insomnia  and  nervous  paroxysms  to 
which  she  had  been  subject,  is  excessive. 
Sloane  v.  Southern  Cal.  R*.  Co.  Ill  Cal.  608. 
44  Pac.  .320,  32:  193 


d.  In  Respect  to  Freight. 

Punitive  Damages,  see  supra,  85. 
Limitation  of  Amount  of  Carrier's  Liability, 

see  Carriers,  II.  b,  7,  c. 
For  Editorial  Notes,  see  infra,  V.  §§  5,  22. 

230.  Damages  resulting  to  the  owner  of 
imported  goods  from  the'  unauthorized  pay- 
ment of  duties  thereon  at  the  port  of  entry, 
by  a  carrier  which  had  agreed  to  transport 
them  in  bond,  are  such  as  might  have  been 
foreseen  by  the  carrier,  within  the  meaning 
of  La.  Civ.  Code,  arts.  1934-1943.  Smith 
Bros.  &  Co.  V.  New  Orleans  &  N.  E.  R.  Co. 
106  La.  11,  30  So.  265,  54:  923 
Failure  to  furnish  cars. 

231.  The  damages  for  failure  to  furnish 
cars  to  ship  property  in  fulfilment  of  a  con- 
tract are  the  profits  which  the  shipper  would 
have  made  on  the  contract  if  the  cars  had 
been  furnished.  Houston,  E.  &  W.  T.  R.  Co. 
V.  Campbell,  91  Tex.  551,  45  S.  W.  2,  43:  225 
Refusal  to  receive. 

232.  A  railroad  company  is  liable  for  all 
damages  which  are  the  direct  and  proximate 
result  of  its  refusing  to  receive  fruit  for 
transportation,  and  cannot  limit  its  liability 
to  such,  only,  as  result  from  unreasonable 
delay  in  the  transportation.  Mathis  v. 
Southern  R.  Co.  65  S.  C.  271,  43  S.  E.  684, 

61:  824 
Delay. 

Allowance  of  Interest,  see  Interest,  31. 
See  also  infra,  239. 

233.  The  measure  of  a  carrier's  liability 
for  failure  to  deliver  promptly  goods  which 
it  had  received  with  knowledge  that  the 
shipper  had  contracted  to  deliver  them  on 
a  specified  date  or  forfeit  a  certain  sum  for 
each  day's  delay  is  the  loss  sustained  by  the 
shipper  under  the  penalty  clause  of  its  con- 
tract. Illinois  C.  R.  Co.  v.  Southern  Seat- 
ing &  C.  Co.  104  Tenn.  568,  58  8.  W.  303, 

50:  729 
Loss  or  conversion. 

234.  The  measure  of  damages  for  loss, 
through  the  negligence  of  a  sleeping  ear 
company,  of  personal  effects  of  a  passenger, 
which  have  no  market  value,  is  their  value 
to  him:  that  is,  the  actual  loss  in  money 
which  he  would  sustain  by  being  deprived  of 
them.  Coonev  v.  Pullman  Palace-Car  Co. 
121  Ala.  368,  25  So.  712,  53:  690 

235.  The  measure  of  damages  for  property 
lost  by  negligence  of  a  common  carrier  is 
not  limited  to  the  valuation  in  the  bill  of 
lading.  Lang  v.  Pennsvlvania  R.  Co.  154  Pa. 
342,  26  Atl.  370,  *  20:  360 

236.  The  measure  of  damages  for  a  con- 
version by  a  carrier  of  goods  which  the  con- 
signee has  not  thereafter  accepted  is  their 
value  at  the  time  when  they  should  have 
been  delivered,  and  not,  as  in  the  case  of 
mere  delay,  the  difference  between  their 
vnhie  at  that  time  and  at  the  time  of  actual 
delivery.  Baltimore  &  O.  R.  Co.  v.  O'Don- 
nell.  40  Ohio  St.  489.  32  N.  E.  476,  21:117 
Discrimination  in  rates. 

237.  The  amount  of  injury  suffered  by  a 
shipoor  on  account  of  lower  rates  given  to 
another  shipper,  for  which  he  may  recover 
from  the  carrier,  under  Pa.  act  1883.  cannot 


DAMAGES,  III.  e. 


949 


be  taken,  without  proof,  to  be  the  difference 
in  the  rates  Charged.  Hoover  v.  Pennsylva- 
nia R.  Co.  156  Pa.  220,  27  Atl.  282,  22:  263 
Live  stock. 

Limitation  of  Amount  of  Carrier's  Liability, 
see  Carriers,  910,  917,  918,  922,  925. 

238.  Damages  for  breach  by  the  carrier  of 
a  written  contract  under  which  cattle  were 
shipped  cannot  be  recovered  in  an  action  for 
breach  of  a  prior  oral  contract  to  transport 
them  at  a  certain  time.  Waters  v.  Rich- 
mond &  D.  R.  Co.  110  N.  C.  338,  14  S.  E. 
802,  16:  834 

239.  Where  mares  being  with  foal  are 
shipped  they  constitute  freight  having  what 
is  called  an  inherent  defect ;  and  if  they  lose 
their  foal  on  the  way,  the  measure  of  dam- 
ages is  not  the  difference  in  their  market 
value  as  they  are  and  what  it  would  have 
been  had  they  arrived  in  good  condition; 
but  if  the  loss  is  total,  it  is  the  price,  less 
freight  charges,  they  would  have  brought 
if  delivered  in  reasonable  time,  having  had 
due  and  necessary  care  while  in  the  carrier's 
possession;  and,  if  the  loss  is  partial,  it  is 
the  difference  between  such  price,  less 
freig'ht,  and  the  actual  value  of  the  animals 
as  delivered.  Missouri  P.  R.  Co.  v.  Fagan, 
72  Tex.  127,  9  S.  W.  749,  2:  75 
Failure  to  forward  corpse. 

Mental  Anguish  for,  see  infra,  576,  577. 

240.  The  sum  of  $1,640  is  excessive  dam- 
ages for  failure  to  forward  a  corpse  by  a 
certain  train,  whereby  its  interment  was  de- 
layed from  afternoon  until  the  next  morn- 
ing, where  its  condition  did  not  render 
speedy  interment  necessary,  and  the  person 
complaining  was  treated  with  proper  courte- 
sy. Louisville  &  N.  R.  Co.  v.  Hull,  113  Ky. 
5(51,  68  S.  W.  433,  57:  771 

e.  Torts  Generally;  Breach  of  Promise. 

Punitive  Damages,  see  supra,  22-30,  42,  50. 

Mitigation  of,  see  infra,  660,  664. 

Recovery  for  Mental  Anguish,  see  infra,  III. 
o,  2,  a. 

Loss  of  Profits  from  Illegal  Combination,  see 
infra,  611. 

Excessiveness  Requiring  Remission  on  Ap- 
peal, see  Appeal  and  Error,  1204. 

For  Duress  Compelling  Execution  of  Deed 
Absolute  in  Form,  see  Duress,  7. 

Alienation  of  Husband's  Affection,  Evidence 
as  to,  see  Evidence,  2123. 

Instruction  as  to,  see  Trial,  768. 

See  also  supra,  5,  6;   infra,  403,  416. 

For  Editorial  Notes,  see  infra,  V.  §§  10,  24. 

241.  The  general  rule  is  that  damages  fpr 
which  a  party  is  liable  in  tort  are  such,  and 
onlv  such,  as  are  the  reasonable  and  prob- 
able consequence  of  his  acts.  Peters  v.  Jack- 
son. 50  W.  Va.  644,  41  S.  E.  190,  57:  428 

242.  Damages  resulting  directly  from  a 
wrongful  act  are  recoverable,  as  a  general 
rule,  whether  they  could  or  could  not  have 
been  foreseen  or  contemplated  as  a  orobnble 
result.  Schumaker  v.  St.  Paul  &  D.  R.  Co. 
46  Minn.  39,  48  N.  W.  559,  12:  257 

243.  In  an  action  of  tort,  if  it  be  impossi- 
ble, in  the  nature  of  the  case,  to  distinsruish 
between  the  damage  arising  from  the  action- 


able injury  and  damage  which  has  another 
origin,  the  jury  should  be  left  to  make  from 
the  evidence  the  best  estimate  in  their  pow- 
er as  reasonable  men,  and  award  to  the 
plaintiff  compensatory  damages  for  the  ac- 
tionable injury.  JenKins  v.  Pennsylvania 
R.  Co.  67  N.  J.  L.  331,  51  Atl.  704,       57:  309 

244.  ITie  measure  of  damages  in  an  ac- 
tion sounding  in  tort  for  negligence  in  the 
performance  of  a  duty  based  on  contract,  un- 
attended by  circumstances  showing  evil  in- 
tent, oppression,  or  wanton  disregard  of 
another's  rights,  is  practically  the  same  as 
if  the  action  were  for  breach  of  the  contract 
under  the  same  circumstances.  Fererro  v. 
Western  U.  Teleg.  Co.  9  App.  D.  C.  455, 

35:  548 

245.  One  who  violates  a  duty  owed  to  oth- 
ers, or  commits  a  tortious  or  wrongfully 
negligent  act,  is  liable,  not  only  for  those 
injuries  which  are  the  direct  and  immediate 
consequences  of  his  act,  but  for  such  con- 
sequential injuries  as,  according  to  common 
experience,  are  likely  to  and  in  fact  do  re- 
sult from  his  act.  Smethurst  v.  Independ- 
ent Cong.  Church,  148  Mass.  261,  19  N.  E. 
387,  2:  695 

246.  The  measure  of  damages  in  actions 
for  tort  is  not  the  amount  which  might,  rea- 
sonably be  supposed  to  have  been  contem- 
plated by  the  parties  as  the  reasonable  re- 
sult of  the  wrongful  act,  but  such  amount  as 
represents  the  direct  injury  resulting  from 
the  act,  although  it  could  not  have  been  con- 
templated as  the  probable  result  of  the  act 
don«.  Cowan  v.  Western  U.  Teleg.  Co.  122 
Iowa,  379,  98  N.  W.  281,  64:  545 

247.  Expenses  of  travel  to  another  place 
to  purchase  lumber  are  too  remote  to  be  in- 
cluded in  damages  for  unlawfully  preventing 
a  person  from  procuring  lumber  from  ac- 
customed sources.  Jackson  v.  Stanfield,  137 
Ind.  592,  36  N.  E.  345,  37  N.  E.  14,      23:  588 

248.  Damages  cannot  be  recovered  for  loss 
of  a  reward  for  the  arrest  of  a  fugitive,  by 
one  who  made  arrangements  with  the  owner 
of  a  house  where  a  suspected  person  was 
staying  to  telephone  him  at  a  given  place  if 
such  person  proved  to  be  the  fugitive, 
against  the  owner  of  a  private  telephone  at 
such  place,  to  whom  the  message  from  such 
owner  identifying  the  suspected  person  as  a 
fugitive  was  communicated  on  his  represen- 
tation that  he  was  the  constable,  by  means 
of  which  he  caused  the  arrest  of  the  fugi- 
tive and  obtained  the  reward,  as  such  dam- 
ages are  too  remote  and  contingent.  Smitha 
v.  Gentry,  20  Kv.  L.  Rep.  171,  45  S.  W.  515. 

42:  302 

249.  The  owner  of  a  coal  mine  is  not  en- 
titled to  any  damages  in  a  suit  for  an  in- 
junction, from  the  fact  that  one  of  the  de- 
fendants had  driven  away  from  the  mine  a 
person  who  had  a  contract  with  the  plaintiff, 
without  any  limit  as  to  time,  to  take  coal 
at  a  certain  price  per  bushel,  and  who  had 
cleaned  out  the  entry  to  the  mine,  for  which 
plaintiff  had  paid  nothing,  where  it  does  not 
appear  that  plaintiff  may  not  stilfmine  and 
spU  the  coal  and  get  a  higher  price  for  it. 
Rankin's  Appeal,  1  Monaghan  (Pa.)  308 
16  Atl.  82,  2:  429 


950 


DAMAGES,  III.  f. 


Wrongful  expulsion  from  association. 

250.  The  damages  to  be  recovered  by  a 
member  wrongfully  expelled  from  an  unin- 
corporated benefit  society  may  include  the 
loss  sustained  by  being  deprived  of  the  use 
and  enjoyment  of  the  property  of  the  socie- 
ty and  of  the  privileges  of  membership,  and 
also  the  mental  suffering  caused  by  the 
wrongful  expulsion  and  the  manner  in  which 
it  was  effected.  LahiflF  v.  St.  Joseph  Total 
Abstinence  &  Benev,  Soc.  76  Conn.  648,  57 
Atl.  692,  65:  92 

Ordering  from  public  resort. 
Mental  Anguish  for,  see  infra,  578. 

251  Seven  hundred  and  fifty  dollars  is  ex- 
cessive to  award  a  woman  as  damages  for 
being  ordered  from  a  place  of  public  resort, 
where  little  injury  is  shown  beyond  the  vio- 
lation of  the  right  to  be  there,  and  the  in- 
sult involved  in  the  order  to  leave.  Davis 
V.  Tacoma  R.  &  P.  Co.  35  Wash.  203,  77  Pac. 
209,  66:  802 

Wrongful  sale  of  liquor. 
Evidence  as  to,  see  Evidence,  1937. 

252.  There  can  be  only  one  allowance  of 
damages  for  one  wrongful  sale  of  liquor, 
and  only  one  sale  allowed  for  under  any 
count ;  and  damages  can  only  be  allowed  for 
permitting  loitering  about  the  premises 
where  liquors  are  sold,  for  the  particular  oc- 
casions proved  other  than  those  when  sales 
are  alleged  to  have  been  made.  Sackett  v. 
Ruder,  152  Mass.  397,  25  N.  E.  736,  9:  391 
Communication  of  smallpox. 

253.  A  verdict  for  $2,775  damages  on  ac- 
count of  the  communication  of  smallpox  to 
the  plaintiff  and  her  family  is  not  so  large 
as  to  justify  the  court  in  setting  it  aside  on 
appeal,  considering  the  loathsomeness  of  the 
disease  and  the  anxiety  and  suflFering  it 
must  have  entailed.  Henderson  v.  Clayton, 
22  Ky.  L.  Rep.  283,  57  S.  W.  1,  53:  145 
Physician's  abandonment  during  confine- 
ment. 

See  also  supra,  189. 

254.  Damages  for  the  death  of  the  child 
cannot  be  allowed  in  an  action  by  husband 
and  wife  for  a  physician's  abandonment  of 
the  wife  during  her  confinement.  Lathrope 
V.  Flood,  135  Cal.  458,  63  Pac.  1007,  67  Pac. 
683,  57 :  215 
Breach  of  promise. 

Punitive  Damages,  see  supra,  40,  41. 
Aggravation  of  Damages,  see  infra,  668. 
Prejudial  Instruction  as  to,  see  Appeal  and 

Error,   1041. 
Evidence    as    to,    see    Evidence,   2040,   2107, 

2118. 
For  Editorial  Notes,  see  infra,  §§  5,  27. 

2.55.  A  woman  Who  breaks  a  contract  of 
marriage  in  order  to  marry  another  man  is 
not  entitled  to  recover  from  the  latter  for 
his  broach  of  promise  any  damages  growing 
out  of  her  wrongful  act  in  breaking  her 
promise  to  marry  the  former.  Trammell  v. 
Vaughan,  158  Mo.  214,  59  S.  W.  79,    51:  854 

256.  Damages  in  an  action  for  breach  of 
promise  of  marriage  cannot  be  enhanced  by 
the  loss  of  the  plaintiff's  opportunity  to 
marry  another  man  to  whom  she  was  pre- 
viously engaged,  mereiy  because  she  broke 
her  engagement  with  him  at  the  solicitation 


of  the  defendant,  since  she  cannot  take  ad- 
vantage of  her  own  perfidy.  Uahn  v.  Bet- 
tingen,  81  Minn.  91,  83  N.  W.  467,       50:  669 

257.  A  verdict  for  $2,800  in  a  suit  for 
breach  of  promise  of  marriage,  when  both 
parties  were  and  still  are  of  excellent  char- 
acter and  standing,  and  the  defendant  repre- 
sented his  estate  to  be  worth  $10,000  though 
he  now  contends  that  it  is  worth  much  less, 
while  the  plaintiflF  has  no  estate  of  her  own 
and  her  father  is  in  humble  circumstances, 
will  not  be  set  aside  on  the  ground  that  it 
is  so  excessive  as  to  indicate  prejudice,  pas- 
sion, caprice,  or  corruption  on  the  part  of 
the  jury.  Brown  v.  Odill,  104  Tenn.  250,  56 
S.  W.  840,  52:  660 

f.  Fraud. 

Punitive,  see  supra,  43. 

For  Editorial  Notes,  see  infra,  V.  §  24. 

258.  The  liability  of  a  bank  president  who 
induces  the  cashier  to  loan  money  to  a 
minor,  whereby  it  is  lost,  will  extend  to  the 
balance  due  on  actual  advances,  with  law- 
ful interest,  but  not  to  conventional  interest 
or  attornev"s  fees.  Brown  v.  Farmers'  &  M. 
Nat.  Bankli  88  Tex.  265,  31  S.  W.  285, 

33:  359 
On  sale  of  real  property. 
Mitigation  of  Damages,  see  infra,  659. 

259.  The  true  measure  of  damages  in  an 
action  to  set  aside  a  conveyance  for  fraud  is 
the  profit  derived  from  the  property  while 
in  the  purchaser's  possession.  Gruber  v. 
Baker,  20  Nev.  453,  23  Pac.  858,  9:  302 

260.  The  measure  of  damages  for  deceit 
in  the  sale  of  property  is  the  difl'erence  be- 
tween what  it  would  have  been  worth  if  as 
represented  and  what  it  actually  was  worth 
at  the  time  of  the  sale.  Fargo  Gaslight  & 
C.  Co.  V.  Fargo  Gas  &  E.  Co.  4  N.  D.  219, 
59  N.  W.  10G6,  37 :  593 

261.  In  an  action  to  recover  damages  for 
fraudulent  representations  by  which  the 
plaintiff  was  induced  to  exchange  real  prop- 
erty for  stock  in  a  corporation,  the  measure 
of  recovery,  in  the  absence  of  a  claim  for 
special  or  exemplary  damages,  is  the  differ- 
ence in  value  between  what  was  received  or 
parted  with,  as  the  case  may  be,  and  what 
would  have  been  received  or  parted  with, 
had  the  representations  been  true,  where  he 
affirmed  the  contract  after  discovering  the 
deceit.  Beare  v.  Wright  (X.  D.)  103  N.  W. 
632,  69:  409 

262.  Rescission  or  attempted  rescission  of 
a  contract  of  purchase  made  on  the  faith  of 
false  statements  by  a  third  person  as  to 
the  title  will  not  make  him  liable  in  an  ac- 
tion for  fraud  beyond  the  difference  between 
the  actual  vale  of  the  property  and  its  value 
as  it  would  have  been  if  the  representation 
had  been  true.  Nash  v.  Minnesota  Title  Ins. 
&  T.  Co.  163  Mass.  574,  40  N.  E.  1039, 

28:  753 

263.  Damages  for  false  representation  as 
to  the  title  of  property  of  another  person, 
on  the  faith  of  which  it  was  purchased,  in- 
clude only  the  difference  between  the  value 
of  the  property  as  it  was  and  the  value  as 
it  would  have  been  if  the  representation  had 
been  true.  Id* 


DAMAGES,  III.  g. 


264.  The  measure  of  damages  for  the 
fraudulent  misrepresentation  of  a  vendor  of 
real  property  inducing  the  purchaser  to  en- 
ter into  the  contract  is  the  difference  be 
tween  the  value  of  the  property  as  it  would 
have  been  if  as  represented  and  its  real 
value,  and  not  necessarily  the  dill'erence  be- 
tween the  purchase  price  and  its  real  value. 
Gustafson  v.  Rustemeyer,  70  Conn.  125,  39 
Atl.  104,  39:  644 
On  sale  of  goods. 

265.  The  value  of  the  goods  at  the  place 
and  the  time  when  they  were  obtained,  and 
not  the  contract  price,  is  the  measure  of 
damages  for  fraud  in  obtaining  them.  ,John 
V.  Farwell  Co.  v.  Josephson,  96  Wis.  10,  70 
N.  W.  289,  71  N.  W.  109,  ^  37:  138 
On  sale  of  corporate  stock.  « 

See  also  supra,  261. 

266.  Damages  to  a  holder  of  shares  of 
stock  fraudulently  issued  by  corporate  offi- 
cers should  be  measured  by  the  market  val- 
ue of  valid  stock  at  the  time  when  the  cor- 
poration refused  to  recognize  the  corporate 
shares  as  valid.  Allen  v.  South  Boston  R. 
Co.  150  Mass.  200,  22  N.  E.  917,  5:  716 

267.  The  true  measure  of  damages  suf- 
fered by  one  who  is  fraudulently  induced  to 
make  a  contract  of  sale,  purchase,  or  ex- 
change of  property  is  the  difference  between 
the  actual  value  of  that  which  he  parts  with 
and  the  actual  value  of  that  which  he  re- 
ceives under  the  contract.  Rockefeller  v. 
Merritt,  40  U.  S.  App.  666,  22  C.  C.  A.  608, 
76  Fed.  909,  35:  633 

.268.  The  measure  of  damages  for  false 
representations  by  stockholders  as  to  the 
amount  of  corporate  property,  made  for  the 
purpose  of  effecting  a  sale  of  the  stock,  and 
which  are  relied  upon  by  the  purchaser,  is 
the  difference  between  the  actual  value  of 
the  stock  and  what  it  would  have  been  worth 
had  the  representations  been  true.  Boddy  v. 
Henry,  113  Iowa,  462,  85  N.  W.  771,    53:  769 

269.  The  damages  for  fraudulent  repre- 
sentations inducing  the  purchase  of  corpo- 
rate stock  cannot  be  limited  to  the  difference 
in  the  value  of  the  stock  on  the  day  the 
representations  were  made  and  on  the  day 
of  purchase,  if  at  both  dates  it  was  of  much 
less  intrinsic  value  than  the  price  paid  for 
it,  but  should  represent  the  difference  be- 
tween the  price  paid  and  the  intrinsic  value 
of  the  stock  as  ascertained  by  events  in  the 
subsequent  history  of  the  corporation,  and 
not  bv  the  market  price.  Hindman  v.  Fint 
Xat.  Bank,  50  C.  C.  A.  623,  112  Fed.  931, 

57:  108 

g.  Assault;  False  Imprisonment;  Malicious 
Prosecution;    Abuse  of  Process. 

Assault. 

On  Passenger,  see  supra,  64,  72-75,  212,  213. 
Pimitive  Damages  for,  see  supra,  212,  213. 
Time  for  Which  Recoverable,  see  infra,  647. 
Mental  Anguish  for,  see  infra,  579. 
Mitigation  of,  see  infra.  663;  Pleading,  602. 
Evidence  as  to,  see  Evidence,  2048. 
See   also   supra.   44-46. 

270.  A  great  disparity  between  the 
amount  awarded  by  a  jury  in  a  civil  action 
as  damages  for  intentionally  kicking  a  boy 


951 

from  a  street  car  and  the  fine  which  could 
have  been  imposed  in  case  of  a  criminal 
prosecution  for  the  offense  does  not  of  it- 
self show  that  the  verdict  is  excessive. 
-VlcNamara  v.  St.  Louis  Transit  Co.  82  Mo. 
676,  81  S.  W.  880,  66:  486 

271.  The  measure  of  damages  for  injuries 
caused  by  a  kick  is  not  what  defendant 
might  reasonably  be  supposed  to  have  con- 
templated as  likely  to  result,  but  what  ac- 
tuallv  did  result.  Vosburg  v.  Putnev,  80 
Wis.  523,  50  N.  W.  403,  14:  226 

272.  A  verdict  of  $4,000  in  favor  of  one 
who  at  midnight  was  taken  from  his  home 
to  a  distant  field,  stripped  naked,  tied  to  a 
tree,  and  severely  beaten,  and  then  ordered 
to  leave  the  county,  or  he  would  be  killed, 
rendered  against  the  persons  who  committed 
the  assault,  will  not  be  set  aside  as  exces- 
sive. Morgan  v.  Kendall,  124  Ind.  454,  24 
N.  E.  143,  9:  445 

273.  Where  a  number  of  citizens  without 
warrant  of  law  take  into  the  woods  a  young 
man  whom  they  suspect  of  having  commit- 
ted the  crime  of  arson,  and  who  is,  at  the 
time,  in  attendance  upon  the  grand  jury, 
and  there  abuse  and  ill  treat  him  for  a  num- 
ber of  hours,  and  place  a  rope  around  his 
neck,  and  threaten  to  hang,  and  make  a 
demonstration  of  hanging,  him,  all  with  a 
view  of  extorting  from  him  a  confession  of 
the  crime  or  an  accusation  against  some  oth- 
er person, — a  verdict  of  $500  as  damages 
for  mental  anguish,  terror,  and  distress  is 
insufBcient,  even  though  nothing  be  claimed 
on  account  of  damage  to  reputation,  and 
nothing  be  proved  in  the  way  of  pecuniary 
loss;  and  the  amount  allowed  will  be  in- 
creased. Warner  v.  Talbot,  112  La.  817,  36 
So.  743,  66:  336 
False  imprisonment;  malicious  prosecution. 
Evidence  as  to,  see  Evidence,  185.3-1855. 
For  Editorial  Notes,  see  infra,  V.  §  10. 

274.  Damages  for  wrongful  confinement  in 
an  insane  asylum  are  not  confined  to  lae 
expense  of  procuring  a  release  and  the  time 
lost,  but  extend  to  the  mental  suffering, 
humiliation,  shame,  disgrace,  and  injury  to 
reputation  suffered  thereby.  Hewlett  v. 
George,  68  Miss.  703,  9  So.  885,  13:  682 

275.  Ix)ss  of  employment  because  of  false 
imprisonment  is  an  element  of  damages, 
where,  because  of  the  imprisonment,  an  offer 
of  employment  was  withdrawn,  although 
no  contract  had  actually  been  executed. 
Stoecker  v.  Nathanson,  5  Neb.  (Unof.)  435, 
98  N.  W.  1061.  70:  667 

276.  Damages  can  be  recovered  only  to 
the  time  of  the  lawful  arrest,  where  a  per- 
son within  the  jurisdiction  of  the  court,  for 
whom  a  warrant  has  been  issued,  is  taken 
into  custody  and  detained  until  the  officer 
arrives  with  the  warrant,  when  a  legal  ar- 
rest is  made.  McCuHough  v.  Greenfield,  133 
Mich.   463,   95   N.   W.   532,  62:  908 

277.  An  officer  is  not  liable  in  damages 
for  using  handcuffs  on  a  prisoner  who  is 
unknown  to  him,  where  he  has  a  consider- 
able distance  to  go  after  dark,  and  has 
another  person  under  his  charge,  there  be- 
ing nothmg  to  show  wantonness  or  malice 
in  his  conduct.  Id. 


952 


DAMAGES.  III.  h. 


278.  Where  false  imprisonment  consisted 
in  being  constantly  guarded  by  and  under 
the  control  of  detectives  for  about  two 
weeks,  a  verdict  of  $20,000  damages  is  ex- 
cessive, but  was  allowed  to  stand  if  plain- 
tiff would  remit  40  per  cent  of  it.  Fother- 
ingham  v.  Adams  Express  Co.  36  Fed.  252, 

1:474 
Abuse  of  process. 
Punitive,  see  supra,  47-49. 
Arrest  of  Passenger,  see  supra,  214. 
Allowing   Interest,    see   Interest,   35. 
See  also  infra,  399. 

279.  Damages  cannot  be  disallowed  for 
stoppage  of  gangs  of  saws  by  the  wrongful 
removal  of  a  belt  from  a  mill  under  a  writ 
of  attachment,  because  they  themselves 
might  have  been  rightfully  attached,  and 
the  same  injurv  thereby  wrought.  Giddings 
v.   Freedley,   128  Fed.   355,  65:  327 

280.  Double  the  value  of  the  property 
sold  may  be  recovered  as  damages  against 
a  justice  and  the  sureties  on  his  official 
bond,  under  W.  Va.  Code,  chap.  41,  §  25, 
where  a  specially  deputed  constable  levies 
upon  and  sells  exempt  property  under  an 
attachment  issued  by  the  justice.  State 
use  of  Burt  v.  Allen,  48  W.  Va.  154,  35  S. 
E.  990,  50:  284 

h,  libel  or  Slander. 

Punitive,  see  supra,  31-40,  86. 
Mental  Anguish  for,  see  infra,  580. 
Aggravation  of  Damages,  see  infra,  666,  667. 
Reduction  of  Damages,  see  infra,  657,  658. 
Power  of  Legislature  to  Limit  Amount  of, 

see   Constitutional   Law,   833-838. 
Evidence    as    to,    see    Evidence,    1864-1869, 

2039,  2109. 
Allegation    as    to    Damages,    see    Pleading, 

258-262. 
Question  for  Jury  as  to,  see  Trial,  265. 
Instruction  as  to,  see  Trial,  659. 
See  alpo  Libel  and  Slander,  35. 
For  Editorial  Notes,  see  infra,  V.  §  10. 

281.  The  amount  of  damages  for  libel  is 
referred  to  the  sound  discretion  of  the  jury, 
but  must  be  purely  compensatory.  Fenster- 
maker  v.  Tribune  Pub.  Co.  12  Utah,  439, 
13  Utah,  532,  43  Pac.  112,  45  Pac.  1097, 

35:  611 

282.  The  plaintiff  in  a  suit  for  libel  based 
theroon  is  entitled,  in  the  absence  of  alle- 
gation and  proof  of  special  damage,  to  such 
general  damages  as  the  law  will  presume  to 
be  the  natural  or  probable  consequences  of 
the  defamatory  words.  Id. 

283.  The  elements  to  be  taken  into  con- 
sideration in  assessing  damages  for  libel 
are,  (1)  the  plaintiff's  injured  feelings  and 
tarnished  reputation;  (2)  the  nature  of  the 
imputation;  (3)  the  character,  condition, 
and  influence  of  the  parties;  and  (4)  all 
mitigating  circumstances  shown  by  the  evi- 
dence. Id. 

284.  In  an  action  for  slander,  the  charac- 
ter and  social  standing  of  the  defendant,  as 
well  as  of  the  plaintiff,  may  be  considered 
in  estimating  the  amount  of  damages. 
Broughton  v.  McGrew,  39  Fed.  672,      5:  406 

285.  The  law  presumes  injury  to  the  feel- 


ings, mental  anguish,  and  injury  to  the  rep- 
utation in  case  of  a  publication  of  an  arti- 
cle which  is  libelous  per  se.  Osbom  v. 
Leach,  135  N.  C.  028,  47  S.  E.  811,  66:  648 

286.  Compensation  for  mental  and  physic- 
al pain  and  injury  to  reputation  may  be 
recovered  as  actual  damages  for  the  publica- 
tion of  a  libel.  Id. 

287.  Protest  fees  voluntarily  paid  on  the 
premature  protest  of  a  note  cannot  be  re- 
covered as  part  of  the  damages  in  an  ac- 
tion for  libel  in  protesting  the  note.  Hirsh- 
field  V.  Ft.  Worth  Nat.  Bank,  83  Tex.  452, 
18S.  W.  743,  15:639 

283,  Damages  from  publication  of  a  libel 
cannot  be  enhanced  by  the  republication 
thereof  by  other  persons,  even  if  there  was 
a  general  probability  of  its  republication. 
Burt  V.  Advertiser  Newspaper  Co.  154  Mass. 
238,  28  N.  E.  1,  13:  97 

Of  physician. 
Sufficiency  of  Verdict  as  to,  see  Trial,  897. 

289.  In  an  action  for  libel  against  a  board 
of  health  in  stating  in  the  preamble  to  an 
order  regulating  the  conduct  of  physicians 
in  the  treatment  of  obstetrical  cases,  that 
the  reason  for  making  the  order  was  that 
a  number  of  deaths  had  recently  resulted 
from  the  negligence  of  the  physician  at- 
tending the  patients  in  childbirth,  plain- 
tiff", upon  showing,  by  a  preponderance  of 
the  evidence,  that  the  preamble  was  pub- 
lished as  charged,  and  that  he  was  the 
physician  referred  to  by  the  defendants, 
and  understood  by  the  community  to  be 
such,  is  entitled  to  recover  at  least  such 
compensatory  damages  as  were  attributable 
to  the  publication.  Mauk  v.  Brundage,  68 
Ohio  St.  89,  67  N.  E.  152,  62:477 
By  mercantile  agency. 

290.  Instances  of  loss  of  particular  cus- 
tomers need  not  be  alleged  or  proved  to 
warrant  an  assessment  of  damages  for  dim- 
inution of  business  and  loss  of  credit  by 
reason  of  a  faUe  publication  by  a  mercan- 
tile agency.  Douglass  v.  Daisley,  52  C.  C. 
A.  324,  114  Fed.  628,  57:  475 
By  collection  agency. 

291.  A  verdict  for  $571  in  an  action  for 
libel  in  publishing  plaintiff  on  a  list  of  de- 
linquent debtors  by  an  agency  to  collect 
bad  debts  is  not  excessive,  where  he  proves 
that  credit  was  refused  him  by  one  person 
on  account  of  the  publication.  Muetze  v. 
Tuteur,  77  Wis.  236,  46  N.  W.  123,  9:' 86 
Libelous  telegram. 

292.  A  verdict  for  $5,200  is  plainly  the  re- 
sult of  passion  and  prejudice  in  an  action 
for  libel  against  a  telegraph  company  which 
published  it  only  to  its  own  agent  to  whom 
it  was  sent  for  delivery  to  the  person  li- 
beled. Peterson  v.  Western  U.  Teleg.  Co. 
65  Minn.  18,  67  N.  W.  646,  33:  302 

293.  A  verdict  of  $2,000  for  the  litelous 
transmission  of  a  telegram  by  one  agent  or 
employee  of  the  telegraph  company  to 
another  is  excessive,  where  the  plaintiff  him- 
self was  the  only  person  to  whom  the  con- 
tents of  the  messagrf  were  divulged  by  the 
agent  who  received  it.  Peterson  v.  Western 
U.  Teleg.  Co.  75  Minn.  368,  77  N.  W.  985, 

43:  581 


DAMAGES,  111.  i,  1 


953 


Slander  of  title. 

294.  Only  damage  which  is  the  natural 
and  direct  result  of  slander  of  title  is  re- 
coverable therefor.  Burkett  v.  Griffith,  90 
Cal.  532,  27  Pac.  627,  13:  707 

i.  Personal  Injuries;  Death. 

1.  In  General. 
« 

Duty  to  Prevent  Unnecessary  Amount,  see 
supra,  15-17. 

To  Passenger,  see  supra,  61-67,  81,  211. 

Punitive  Damages  for,  see  supra,  22-27,  51, 
52.  61-67,  81. 

Prospective  Damages,  see  infra,  641-646. 

Reduction  of  Damages,  see  also  infra,  655, 
656,  661.  " 

Apportionment  of  Damages,  see  infra,  669. 

Recovery  for  Mental  Anguish,  see  infra.  III. 
o,  1. 

Recovery  for  Loss  of  Profits,  see  infra,  612. 

Review  of  Finding  as  to,  see  Appeal  and  Er- 
ror, 745. 

Statutory  Limitation  of  Amount  as  Con- 
tract, see  Constitutional  Law,  1138. 

Evidence  as  to.  see  Evidence,  1723,  1820, 
1858-1861,  2041-2047,  2100,  2101,  2104, 
2106,  2112,  2113,  2278. 

Allowance  of  Interest,  see  Interest,    38,    39. 

Amount  Allowable  under  Pleading,  see 
Judgment,  57. 

Instructions  as  to,  see  Trial,  769-776,  782, 
784. 

See  also  supra,  10,  150,  151. 

For  Editorial  Notes,  see*  infra,  V.  §§  11, 
15,  24,  26-28. 

295.  The  price  to  be  paid  to  a  volunteer 
for  enduring  suffering  caused  by  a  personal 
injury  cannot  be  regarded  as  the  standard 
in  determining  the  amount  of  damages  in 
an  action  for  such  injury;  and  an  instruc- 
tion which  suggests  such  an  idea  of  a  price 
in  connection  with  the  difficulty  fixing  the 
amount  is  misleading.  Spaulding  v.  Penn- 
sylvania Co.  142  Pa.  503,  21  Atl.  979,  12:  698 

296.  Diminished  capacity  to  perform  man- 
ual labor,  as  distinguished  from  loss  of 
earning  power  by  any  labor,  manual  or 
otherwise,  may  properly  be  considered  by 
the  jury  in  determ.ining  the  damages  to  be 
awarded  for  a  personal  injury  to  a  boy  who 
has  adopted  no  particular  calling  or  trade 
for  his  life  work.  Fort  Worth  &  D.  C.  R. 
Co.   v.   Robertson    (Tex.)    16   S.   W.    1093, 

14:  781 

297.  No  fixed  rule  exists  for  estimating 
the  damages  to  be  recovered  by  one'  who  is 
permanently  disabled  from  laboring,  through 
the  negligence  of  another.  The  most  that 
can  be  done  is  to  instruct  the  jury  in  gen- 
eral terms  to  award  a  fair  and  reasonable 
compensation,  taking  into  consideration 
what  the  plaintiff's  income  would  probably 
have  been,  how  long  it  would  have  lasted, 
and  all  the  contingencies  to  which  it  was 
liable.  Richmond  &  D.  R.  Co.  v.  Allison,  86 
Ga.   145.   12  S.  E.   3.52,  11:  43 

298.  A  person  guilty  of  negligence  should 
be  held  responsible  for  all  the  consequences 
which    a    prudent    and    e3q>erienced    person 


fully  acquainted  with  all  the  circumstances 
which  in  fact  existed,  whether  they  could 
have  been  ascertained  by  reasonable  dili- 
gence or  not,  would  at  the  time  of  the  neg- 
ligent act  have  thought  reasonably  possi- 
ble to  follow  if  they  had  occurred  to  his 
mind.  Wallin  v.  Eastern  R.  Co.  83  Minn. 
149,  86  N.  W.  76,  54:  481 

299.  Only  actual  damages  are  recoverable 
for  injuries  unnecessarily  committed  in  the 
ejection  of  a  tenant  after  his  term  has  ex- 
pired, unless  it  is  done  under  circumstances 
of  aggravation.  Vinson  v.  Flynn,  64  Ark. 
453,  43  S.  W.  146,  39:  415 

300.  Physical  and  mental  suffering  aris- 
ing out  of  a  personal  injury  may  be  taken 
into  consideration  in  establishing  damages. 
Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Mont- 
gomery, 152  Ind.  1,  49  N.  E.  582,  69:  875 
Loss  of  business. 

301.  Recovery  for  permanent  impairment 
of  earning  power  by  a  negligent  injury  to 
a  boarding-house  keeper  cannot  be  had  on 
evidence  merely  that  when  she  was  able  to 
resume  business  after  the  injury  her  house 
was  not  as  well  filled  as  before,  without 
showing  the  cause  or  its  effect  on  the  prof- 
its. Wallace  v.  Pennsylvania  R.  Co.  195 
Pa.  127,  45  Atl.  685,  52:  33 
Medical  services;  expenses  of  cure. 

302.  iJamagcs  for  a  negligent  injury  can- 
not include  expenses  for  medical  attendance, 
in  the  absence  of  anv  evidence  of  the  value 
of  it.  Brown  v.  White,  202  Pa.  297,  51  Atl. 
962,  58:  321 

303.  Expenses  incurred  in  seeking  a  cure 
from  personal  injuries  received  through  an- 
other's negligence  are  recoverable  as  dam- 
ages for  such  injuries  if  they  were  neces- 
sary, reasonable,  and  judicious  expenditures. 
Hart  V.  Charlotte,  C.  &  A.  R.  Co.  33  S.  C. 
427,  12  S.  E.  9,  10:  794 
Insanity  resulting  from  shock. 

304.  Insanity  resulting  from  the  shock 
and  excitement  caused  by  a  railroad  acci- 
dent to  a  passenger  who  sustained  no  bodily 
injury  will  not  make  the  railroad  company 
liable'.  Haile  v.  Texas  &  P.  R.  Co.  23  U.  S. 
App.  80,  9  C.  C.  A.  134,  60  Fed.  557,  23:  774 
Recovery  by  parent. 

305.  Loss  of  the  child's  society  is  not  an 
element  of  the  damage  to  be  awarded  a 
parent  for  negligent  injuries  to  it.  McGarr 
V.  National  &  P.  Worsted  Mills,  24  R.  I. 
447,  53  Atl.  .320,  60:  122 

300.  In  an  action  by  a  father  to  recover 
for  the  loss  of  services  of  his  minor  child 
by  re.'ison  of  injuries  inflicted  upon  him  by 
a  third  person,  which  result  in  his  death,  the 
recovery  must  be  limited  to  the  damages 
which  accrued  during  the  periotl  between 
the  injury  and  the  death,  and  cannot  em- 
brace those  accruing  after  the  death  oc- 
curred. Davis  V.  St.  T.<iuis,  I.  M.  &  S.  R. 
Co.  53  Ark.  117;  13  S.  W.  801,  7:  283 

Recovery  by  infant. 
See  also  infra,  562. 

307.  In  an  action  by  an  infant  in  the 
care  and  custody  of  its  father,  for  personal 
injuries,  his  lessened  earning  capacity  can- 
not be  considered  as  an  element  of  damages, 
unless  after  the  period  from  which  he  would 


954 


DAMAGES,  m    i,  2. 


be  entitled  to  his  earnings.     Chicago,  B.  & 

Q.  R.  Co.  V.  Krayenbuhl,  65  Neb.  889,  91  N. 

W.   880,  59:  920 

Wrong  medical  treatment. 

Burden  of  Proof  as  to,  see  Evidence,  429. 

Evidence  as  to,  see  Evidence,  1904. 

See  also  infra,  317. 

308-309.  Mistakes  or  errors  of  a  physician 
or  surgeon  who  was  employed  in  the  exer- 
cise of  ordinary  care  will  not  preclude  the 
recovery  of  all  the  damages  sustained  from 
personal  injuries.  Selleck  v.  Janesville,  100 
Wis.   157,  75  N.  W.  975,  41:563 

Selleck  v.  Janesville,   104  Wis.  570,  80  N. 
W.    944,  47 :  691 

310.  A  person  injured  through  another's 
negligence,  who  exercises  reasonable  care 
in  selecting  a  proper  physician,  and  in  em- 
ploying other  means  for  recovery,  is  not  pre- 
cluded from  holding  the  negligent  person 
liable  for  the  whole  injury  by  the  fact  that 
the  physician  makes  a  mistake  in  the  treat- 
ment, or  that  the  means  employed  fail  to 
effect  a  cure.  Chicago  City  R.  Co.  v.  Saxby, 
213  111.  274,  72  N.  E.  755,  68:  164 
Effect  of  prior  disease  or  infirmity. 
Effect  on  Riglit  of  Action  for  Causing  Death, 

see  Death,  49. 
For  Editorial  Notes,  see  infra,  V.  §§  11,  12. 

311.  A  passenger  injured  by  negligence 
of  the  carrier  is  entitled  to  recover  to  the 
full  extent  of  the  injury  so  caused,  without 
regard  to  whether,  owing  to  his  previous 
condition  of  health,  he  is  more  or  less  lia- 
ble to  injury.  Purcell  v.  St.  Paul  City  R. 
Co.  48  ]\linn.  134,  50  N.  W.  1034,         16:  203 

312.  A  person  is  not  deprived  of  his  right 
to  recover  full  compensation  for  personal 
injuries  because  he  was  at  the  time  suffer- 
ing from  a  disease  which  was  aggravated 
therebv.  Louisville,  N.  A.  &  C.  R.  Go.  v. 
Snider^   117   Ind.  435,  20  N.   E.   284,  3:  434 

313.  The  measure  of  damages  for  personal 
injuries  caused  by  negligence  is  the  injury 
done,  even  though  it  might  not  have  re- 
sulted but  for  a  peculiar  physical  condition 
of  the  person  injured,  or  may  have  been 
aggravated  therebv.  Lapleine  v.  Morgan's 
L.  &  T.  R.  &  S.  S.  Co.  40  La.  Ann.  661.  4 
So.  875.  1:  378 

314.  Where  the  damages  done  to  a  child 
by  an  injury  appear  to  be  aggravated  by  a 
latent  hereditary  hysterical  diathesis,  which 
had  never  exhibited  itself  before  the  acci- 
dent, and  might  never  have  developed  but 
for  it,  defendant  will  be  held  for  the  entire 
damages  as  the  direct  result  of  the  acci- 
dent. Id. 

315.  Under  a  complaint  seeking  damages 
for  injuries  caused  by  a  railroad  accident, 
damages  cannot  be  recovered  for  a  mere  ag- 
gravation of  injuries  previously  received, 
but  a  recovery  may  be  had  for  injuries 
which  are  a  direct  result  of  the  accident, 
notwithstanding  they  have  aggravated  some 
former  infirmitv.  ^Tavnard  v.  Oregon  R.  & 
Nav.  Co.    (Or.)' 78   PaV.   98.3.  68:477 

316.  One  cannot  e^^cape  liability  for  any 
part  of  the  loss  caused  by  injuries  negli- 
gently inflicted  by  him  on  another,  for  the 
reason  that,  because  of  the  condition  of  the 
injured  perjon,   produced   by   his   voluntary 


use  of  alcohol,  the  shock  of  the  injury 
brought  on  delirium  tremens,  which  retarded 
his  recovery.  Maguire  v.  Sheehan  (C.  C. 
App.  1st  C.)   64  C.  C.  A.  642,  117  Fed.  819, 

59:  496 

317.  Although  a  tuberculous  condition  of 
the  knee  of  a  person  whose  leg  was  injured 
by  another's  negligence  develops  be- 
cause tuberculosis  was  organic  in  the  in- 
jured person,  or  because  of  mistakes  in 
treatment,  it  cannot  be  said  that  it  was 
not  the  consequence  which  might  naturally 
or  ordinarily  follow  as  a  result  of  the  in- 
jury; and  therefore  the  negligent  person 
mav  be  held  liable  therefor.  Chicago  City 
R.  Oo.  v.  Saxby,  213  111.  274,  72  N.  E.  755, 

68:  164 

2.  Injuries  to  Married  Women. 

For  Death  of  Married  Woman,  see  infra,  341. 

Damages  for  Delay  in  Telegram  Summoning 
Physician  During  Confinement,  see  su- 
pra, 189. 

318.  Damages  for  loss  or  injury  to  the 
husband  may  properly  be  recovered  in  an 
action  by  husband  and  wife  for  a  personal 
injury  to  her,  in  jurisdictions  where  prop- 
erty acquired  by  either  is  community  prop- 
erty for  which  the  one  having  the  disposi- 
tion of  it  must  sue,  since  he  is  the  only 
necessary  plaintiff  in  the  action,  and  may 
include  in  his  demand  all  damages  natur- 
ally flowing  from  the  injury  complained  of. 
Hawkins  v.  Fro^t  Street  Cable  R.  Co.  3 
Wash.   592,  28  Pac.   1021,  16:  808 

319.  Loss  of  the  society,  companionship, 
and  solace  of  one's  wife  ia  not  an  element  of 
the  damages  which  he  can  recover  in  case  of 
her  injury  through  another's  negligence.  Id. 

320.  The  recovery  of  damages  by  a  hus- 
band for  the  loss  of  his  wife's  services  on 
account  of  personal  injuries  is  not  limited  to 
the  proved  money  value  of  hev  services  as 
a  hired  servant,  but  include  the  loss  or  im- 
pairment of  his  right  to  conjugal  society 
and  assistance.  Selleck  v.  Janesville,  104 
Wis.  570,  80  N.  W.  944,  47:  691 

321.  Damages  for  loss  of  services  of  plain- 
tiff's wife  by  reason  of  personal  injuries 
are  not  confined  to  the  value  of  her  services 
within  the  household,  but  may  include  the 
value  of  her  services  as  manager  of  her 
husband's  business,  where  she  was  thus  en- 
gaged at  the  time  of  the  injury,  without 
any  contract  or  expectation  of  pay  for  her 
services.  Citizens  Street  R.  Co.  v.  Twiname, 
121  Tnd.  375,  23  N.  E.  1.59,  '  7:  352 

322.  The  value  of  the  services  of  the 
husband  himself  in  necessary  attendance  up- 
on his  wife  may  be  recovered  by  him  in  an 
action  for  personal  injuries,  but  not  in  an 
amount  beyond  that  for  which  he  could 
have  hired  reasonably  competent  attendance 
and  nnrsintr  bv  others.  Selleck  v.  .Tanes- 
ville.  104  Wis.  570,  80  N.  W.  944.       47:  691 

.323.  A  wife  who  brings  an  action  to  re- 
cover damages  for  personal  injuries  may  re- 
cover for  being  prevented  from  perform- 
ing and  transacting  her  necessary  affairs 
and   business   by  her  to  be  performed   and 


DAMAGES.  HI.  i,  3. 


955 


transacted,  if  such  prevention  is  the  result 
of  the  injuries  for  which  she  sues.  Normile 
V.  Wheeling  Traction  Co.  57  W.  Va.  132.  49 
S.  E.   1030,  68:  901 

324.  That  an  injured  woman  brings  suit 
by  lier  husband  as  next  friend  will  not  jus- 
tify the  inclusion,  as  an  element  of  damages, 
of  lost  wages  which  belong  to  him.  Turmi- 
clifTe  V.  Bav  Cities  Consol.  R.  Co.  102  Mich. 
624.   61   N.  W.   11,  32:  142 

325.  Damages  recoverable  by  a  married 
woman  for  personal  injuries  cannot  include 
anything  for  loss  of  earnings,  where  she 
was  working  for  her  husband  under  a  con- 
tract for  wages,  as  such  contract  is  not  en- 
forceable, and  the  damages  for  the  loss  of 
such  services  belong  to  the  husband. 
Blaechinska  v.  Howard  Mission*  &  H.  for 
L.  W.  130  N.  Y.  497,  29  N.  E.  755,  15:  215 

326.  The  impairment  of  the  capacity  of  a 
married  woman  to  perform  labor  can  be 
considered  as  an  element  of  the  damages 
recoverable  in  an  action  by  her  for  a  person- 
al injury,  where  the  statutes  entitle  her  to 
make  contracts  on  her  own  account  and 
give  her  the  right  to  her  own  earnings. 
Harmon  v.  Old  Colony  R.  Co.  165  Mass. 
100,   42  N.   E.   505,  30:  658 

327.  The  mere  fact  that  a  married  woman 
becomes  pregnant  after  a  personal  injury 
caused  by  negligence,  when  no  caution  in 
that  respect  has  been  given  by  her  medical 
adviser,  is  not  necessarily  and  as  a  matter 
of  law  sufficient  ground  to  justify  a  reduc- 
tion of  damages  for  the  injury,  although 
the  results  of  the  injury  may  have  been 
thereby  prolonged,  or  her  recovery  delayed. 
Sallad.av  v.  Dodgeville,  85  Wis.  318,  55  N. 
W.  696*.  20:  541 
Miscarriage. 

Prejudicial    Instruction    as    to,    see    Appeal 

and  Error,  1039. 
Caused  bv  Fright,  see  Fright,  11,  12. 
See  also  'supra,  218,  254. 
For  Editorial  Notes,  see  infra,  V.  §  11. 

-328.  Impairment  of  health  and  suffering 
growing  out  of  the  death  and  premature 
birth  of  the  child  of  a  pregnant  woman  by 
reason  of  injuries  negligently  inflicted  on 
her  by  a  third  person,  which  would  not  have 
attended  its  birth  at  the  usual  time  either 
alive  or  dead,  may  be  considered  in  estimat- 
ing the  damages  to  be  awarded  for  such 
injury.  Hawkins  v.  Front  Street  Cable  R. 
Co.   3  Wash.  592.   28  Pae.   1021,         16:  808 

329.  Mere  proof  that  an  unborn  child  died 
and  was  prematurely  delivered  because  of 
negligent  injuries  to  its  mother  is  nt)t  suffi- 
cient to  establish  her  right  to  recover  sub- 
stantial damages  for  the  injury.  Id. 

330.  A  woman  whose  miscarriage  is  prox- 
imately caused  by  the  misconduct  of  a  serv- 
ant of  a  carrier  may  recover  damages  there- 
for, although  her  condition  was  unknown 
to  the  carrier  or  its  employees.  Mann  Bou- 
doir Car  Co.  y.  Dunre,  13  U.  S.  App.  183.  4 
C.  C.  A.  540,  54  Fed.   646,  21 :  289 

331.  The  loss  of  the  society  and  prospec- 
tive earnings  of  the  child  is  not  a  proper 
element  of  damages  in  an  action  by  a  mar- 
ried woman  for  injuries  which  resulted  in 


a    miscarriage.      Tunnicliffe    v.    Bay    Cities 
Consol.  R.  Co.  102  Mich.  624,  61  N.  W.  11, 

32:  142 

332.  The  loss  of  prospective  offspring  by 
miscarriage  cannot  be  considered  as  an  ele- 
ment of  the  recovery  in  an  action  by  a 
husband  for  the  loss  of  his  wife's  services 
and  expense  resulting  from  a  personal  in- 
jury. Butler  v.  Manhattan  R.  Co.  143  N. 
Y.  417,  38  N.  E.  454,  26:46 
Loss  of  child-bearing  power. 

333.  The  loss  of  child-bearing  power  is  an 
element  of  damage  to  be  considered  by  the 
jury  in  an  action  for  personal  injuries  sus- 
tained through  the  negligence  of  the  de- 
fendant, when  such  loss  is  the  reasonable 
and  probable  result  of  such  negligent  act. 
Normile  v.  Wheeling  Traction  Co.  57  W. 
Va.   132,  49  S.  E.   1030,  68:  901 

3.  Death. 

Recovery  for  Mental  Anguish,  see  infra,  568. 

Instance  of  Amount  for,  see  infra.  III.  i,  4, 
6. 

Review  of  Finding  as  to,  see  Appeal  and 
Error,  795. 

Prejudicial  Error  in  Submitting  Question 
as  to,  to  Jury,  see  Appeal  and  Error, 
1140. 

Extraterritorial  Effect  of  Statute  Fixing 
Maximum  and  Minimum  Fine  for 
Causing,  see  Conflict  of  Laws,  228. 

Statutory  Limitation  of  Amount  as  Con- 
tract, see  Constitutional   Law,   1138. 

As  to  Right  of  Action  for  Death,  see  Death, 

n. 

Evidence   as   to,    see   Evidence,   1722,    1862, 

1863,  2115-2117. 
Allegations  as  to,  see  Pleading,  248-252,  399, 

400. 
Instruction  as  to,  see  Trial,  657,  777-780. 
See  also  supra,  53,  306. 
For  Editorial  Notes,  see  infra,  V.  §§  12,  26, 

27. 

334.  Pecuniary  damages  sustained  are  all 
that  can  be  recovered  for  the  death  of  a 
person  under  Dak.  Comp.  Laws,  §  5499. 
Smith  V.  Chicago,  M.  &  St.  P.  R.  Co.  6  S. 
D.   583,   62  N.  W.  967,  28:  573 

335.  Recovery  for  the  pecuniary  loss  only 
can  be  had  in  an  action  for  the  death  of  a 
relative.  Morgan  v.  Southern  P.  Co.  95  Cal. 
510,  30  Pac.  603,  17:  71 

336.  Under  the  Kentucky  statutes,  gross 
negligence  is  not  necessary  to  entitle  an 
administrator  to  compensatory  damages  for 
the  negligent  killing  of  his  intestate.  Illi- 
nois C.  R.  Co.  y.  Josey,  110  Ky.  342,  61  S. 
W.  703,  54:  78 

337.  Substantial  damages  may  be  recov- 
ered for  an  instantaneous  death  caused  by 
wrongful  act,  under  a  statute  providing  that 
all  causes  of  action  for  injuries  to  the  per- 
son of  a  decedent,  whether  the  same  do  or 
do  not  instantaneously  or  otherwise  result 
in  death,  shall  survive  to  his  executor  or  ad- 
ministrator. Broughel  v.  Southern  New 
Encrland  Teleph.  Co.  72  Conn.  617.  45  Atl. 
435:  49:  404 

338.  A  verdict  for  nominal  damages  only 


956 


DAMAGES,  III.  i,  3. 


can  be  recovered  by  the  father  for  the 
death  of  a  son  who  had  attained  his  major- 
ity, although  he  had  lived  with  his  father 
thereafter  and  was  strong,  healthy,  and  a 
good  laborer.  Smith  v.  Chicago,  M.  &  St. 
P.  R.  Co.  6  S.  D.  583,  62  N.  W.  967,  28:  573 
33n.  Proof  of  damages  is  not  necessary  to 
sustain  a  recovery  for  the  death  of  a  child, 
under  S.  C.  Rev.  Stat.  §  2316,  providing  that 
"the  jury  may  give  such  damages  as  they 
think  proportioned  to  the  injury  resulting 
from  such  death,  to  the  parties  respectively 
for  v^hom  and  for  whose  benefit  such  ac- 
tion shall  be  brought."  Mason  v.  Southern 
R.  Co.  58  S.  C.  70,  36  S.  E.  440,       53:  913 

340.  The  jury  should,  in  arriving  at  the 
total  amount  of  damages  from  the  death  of 
a  person  caused  by  the  wrongful  act,  neg- 
lect, or  default  of  another,  consider  the  pe- 
cuniary injury  to  each  separate  beneficiary 
not  foxind  guilty  of  contributory  negligence, 
but  should  render  a  verdict  for  a  gross 
sum  not  exceeding  $10,000,  in  an  action  un- 
der Ohio  Rev.  Stat.  §§  6134,  6135,  making 
one  liable  to  an  action  for  damages  who 
thus  causes  the  death  of  another,  and  pro- 
viding that  it  shall  be  brought  in  the  name 
of  the  administrator  for  the  exclusive  bene- 
fit of  specified  persons,  and  that  the  jury 
may  give  such  damages,  not  exceeding  $10,- 
000,  as  they  think  proportioned  to  the  pe- 
cuniary injury  resulting  from  such  death 
to  the  persons  "respectively"  for  whose 
benefit  the  action  is  brought.  Wolf  v.  Lake 
Erie  &  W.  R.  Co.  55  Ohio  St.  517,  45  N.  E. 
708,  36:  812 
Of  married  woman. 

For  Editorial  Notes,  see  infra,  V.  §  12. 

341.  Damages  for  the  death  of  a  married 
woman  cannot  include  the  loss  to  her  minor 
child  where  the  action  is  brought  by  her 
husband,  under  Mill  &  V.  (Tenn.)  Code,  § 
3130,  which  provides  that  a  right  of  action 
for  injuries  causing  the  death  of  any  per- 
son shall  not  abate  by  reason  of  the  death, 
but  shall  pass  to  his  widow,  or,  if  none,  to 
his  children,  or  to  his  personal  representa- 
tive for  the  benefit  of  the  widow  or  next  of 
kin,  but  fails  to  make  any  express  provi- 
sions as  to  the  beneficiary  in  case  of  the 
death  of  a  married  woman,  and  leaves  the 
recovery  to  go  to  the  husband  jure  mariti. 
as  it  would  have  gone  at  common  law  but 
for  its  rule  of  abatement.  Chattanooga 
Elertrif.  R.  Co.  v.  Johnson.  07  Tenn.  067.  37 
S.  W.  558,  34:  442 
Loss  of  advice,  comfort,  and  enjoyment.  . 

342.  Dama^T's  cannot  be  allowed  to  a  wid- 
ow for  loss  of  advice  and  counsel,  and  com- 
fort and  enjoyment,  due  to  the  negligent 
killing  of  her  husband,  under  a  statute  al- 
lowing damages  resulting  to  the  parties  for 
whoco  use  and  benefit  the  rieht  of  action 
survives,  from  the  death  conseouent  upon 
injuries  received.  Illinois  C  R.  Co.  v.  Ben/. 
108  Tenn.  070.  CO  S.  W.  317,  58:  690 
Burial  expenses. 

343.  Dama<'P-i  recoverable  by  the  father 
of  a  child  killed  may  include  the  expenses 
necessarily  and  reasonably  incurred  in  the 
burial,   including   compensation    for   the    fa- 


ther's loss  of  time.    Southern  R.  Co.  v.  Co<ve- 
nia,  100  Ga.  46,  29  S.  E.  219,  40:  253 

Resulting  illness  of  parent. 

.344.  Xo  right  of  action  for  the  death  of  a 
child  exists  in  New  Jersey  merely  because 
the  shock  of  its  death  caused  the  sickness 
of  its  mother,  with  the  consequent  depriva- 
tion of  her  services  and  society  from  her 
husband  and  the  increase  of  his  expenses, 
as  the  only  right  of  action  for  death  is  to 
recover,  under  N.  J.  Rev.  p.  294,  for  the  pe- 
cuniary loss  resulting  therefrom.  Myers 
V.  Holborn  (N.  J.  Err.  &  App.)  58  N.  J.  L. 
193,  33  Atl.  389,  30:  345 

Pain  and  suffering. 
Burden  of  Proof  as  to,  see  Evidence,  252. 

345.  Damages  for  pain  and  suffering  can- 
not be  allowed  in  an  action  for  the  negli- 
gent killing  of  a  passenger  in  a  railroad  ac- 
cident where  the  force  of  the  collision  was 
such  that  many  passengers  were  instantly 
killed  and  there  is  nothing  to  show  that 
the  death  for  which  the  action  was  brought 
was  not  instantaneous  or  that  deceased  was 
conscious  after  the  shock.  Sweetland  v. 
Chicago  &  G.  T.  R.  Co.  117  Mich.  329.  75  N. 
W.  1066,  43:  568 
Loss  of  services;   earning  power;   probable 

accumulations. 
Evidence    as    to,    Generally,    see    Evidence, 

1581. 
Opinion  Evidence  as  to,  see  Evidence,  1351, 

1437. 
Evidence  of  Value  of  Services,  see  Evidence, 

1819. 
Sufficiency  of  Evidence  to  Go  to  Jury,  see 

Triali,  80. 
Instruction  as  to,  see  Trial,  658. 
For  Editorial  Notes,  see  infra,  V.  §   12. 

346.  The  net  earnings,  health,  and  habits 
of  a  man  may  be  considered  as  factors  in 
making  an  estimate  of  the  damages  for  his 
death.  Blackwell  v.  Moorman,  111  N.  C. 
151.    16   S.   E.    12,  17:  729 

347.  The  earning  power  of  a  healthy  man 
living  on  his  income,  for  which  damages  on 
account  of  his  death  may  be  given  to  his 
administrator,  may  include  his  skill  in  the 
management  of  wealth  or  capacity  to  man- 
age afTairs.  which  would  be  of  advantage 
to  an  estate.  Skottowe  v.  Oregon,  S.  L.  & 
U.  N.  R.  Co.  22  Or.  430,  30  Pac.  222,  16:  593 

348.  The  wealth  or  poverty  of  the  recipi- 
ent or  giver  does  not  measure  the  amount  of 
damages  recoverable  under  statutes  limiting 
them  to  the  pecuniary  loss  in  case  of  the 
death  of  a  person,  but  the  earnings,  care, 
health,  and  beneficent  and  pecuniary  con- 
tributions give"  or  reasonably  likely  to  be 
given  to  the  beneficiaries  determine  the 
amount  of  damages.  English  v.  Southern 
P.  Co.  13  Utah,  407.  45  Pac.  47,         35:  155 

.340  A  true  and  fair  basis  for  the  meas- 
ure of  damages  for  failure  of  support  by  the 
death  of  a  person  is  the  cost  of  an  annuity 
which  would  furnish  the  support.  Brock- 
wav  V.  Patterson,  72  Mich.  122,  40  N.  AV 
192.  1 :  708 

.3.50.  Nominal    damages    only    can    be    re 
covered    from    a    railroad    company    for   the 
benefit     of  the     father  of   a    person     killed 
through   its   negligence,  unless   it   is  shown 


DAMAGES,  III.  i,  4. 


«57 


that  deceased  gave  assistance  to  his  father, 
or  that  the  father  had  a  reasonable  expec- 
tation of  pecuniary  benefit  from  the  contin- 
ued life  of  decedent;  and  the  reasonable 
character  of  this  expectation  must  appear 
from  the  facts  in  proof.  These  facts,  if 
proved,  must  determine  the  measure  of 
damages.  Fordyce  v.  McCants,  51  Ark.  509, 
1  S.  W.  694,  4:  296 

351.  The  measure  of  damages  in  an  ac- 
tion by  an  administrator  for  the  negligent 
killing  of  his  intestate,  recovery  in  which 
will  be  a  general  asset  of  the  estate  appli- 
cable to  payment  of  deocs  and  administra- 
tion expenses,  is  the  present  cash  value 
of  the  estimated  reasonable  net  earnings 
and  acquisitions  of  deceased  for  the  period 
of  his  natural  expectancy  of  life  "at  the  time 
immediately  preceding  his  death.  Florida 
C.  &  P.  R.  Co.  V.  Sullivan,  57  C.  C.  A.  167, 
120  Fed.  799,  61 :  410 

352.  The  possibility  of  tiie  accumulation 
by  a  decedent  of  an  estate,  which  would  be 
inherited  by  his  children,  cannot  be  consid- 
ered by  the  jury  in  awarding  damages  foi 
wrongful  death.  Weist  v.  Philadelphia,  200 
Pa.    148,  49   Atl.   891.  58:  666 

353.  The  pecuniary  injury  resulting  from 
the  death  of  a  person  from  whom  the  bene- 
ficiaries of  the  action  had  no  right  to  claim 
support  is  the  loss  of  what  the  deceased 
would  probably  have  accumulated  afterward 
if  he  had  lived.  Howard  v.  Delaware  &  H. 
Canal  Co.  40  Fed.  195,  6:  75 

4.  Instances  of  Amount. 

a.  In  General. 

354.  A  verdict  for  $1,000  damages  cannot 
be  held  excessive  in  a  case  of  personal  in- 
jury by  which  a  person's  teeth  were  broken 
and  his  knee  injured  so  that  he  was  lame  for 
a  long  time  and  unable  to  work  efficiently 
at  his  trade  for  six  or  eight  months.  Rich- 
mond R.  &  E.  Co.  V.  Garthright,  92  Va.  627. 
24  S.  E.  267.  32:  220 

355.  A  verdict  for  $15,000  in  favor  of  an 
employee  of  an  electric  company,  who  was 
badly  injured  by  falling  from  a  pole  on  ac- 
count of  contact  with  a  live  wire,  for  which 
the  company  was  resuoiisible  will  not  be  set 
aside  by  the  appellate  court  as  excessive. 
Tedford  v.  Los  Angeles  Electric  Co.  134  Cal. 
76,  60  Pac.   76,  54:  85 

356.  The  court  will  not  interfere  with  an 
award  of  $3,000  as  damages  for  injuries  to 
a  competent  lineman  of  an  electric  light 
company  earning  at  the  time  of  injXiry  $60 
per  month,  where  he  had  been  able  to  do 
but  little  work  prior  to  the  trial,  which 
occurred  about  a  year  after  the  injury,  and 
there  was  evidence  which  would  justify  a 
conclusion  that  he  had  not  at  that  time  re- 
covered from  the  effect  of  the  accident. 
Twombly  v.  Consolidated  Eiectric  Light  Co. 
flS  Me.  353,  57  Atl.  85,  64:  551 
Permanent  disfigurement. 

See  also  infra.  365.  366. 

357.  A  verdict  for  $25,000  is  excessive  in 
an  action  for  personal  injuries  by  which 
a   rnilroad   conductor  thirty   years  old   was 


badly  burned  about  the  face  so  as  to  dis- 
figure him  for  life,  and  also  lost  the  use 
of  his  left  arm,  besides  receiving  some  in- 
jury to  his  right  hand  and  both  feet.  Stan- 
dard Oil  Co.  V.  Tierney,  92  Ky.  307,  17  S. 
W.  1025,  14:  677 

Permanent  injury. 

358.  The  sum  of  $3,500  is  not  so  excessive 
a  recovery  for  a  stiff  arm  that  it  will  be  in- 
terfered with  on  appeal.  Detzur  v.  li.  Stroh 
Brewing  Co.   119  Mich.   282,   77   N.  W.   48, 

44:  50O 

359.  A  verdict  for  $14,500  for  serious  and 
permanent  injuries  to  a  young  man,  leaving 
him  badly  maimed  and  deformed  for  life 
and  practically  a  physical  wreck,  is  not  so 
excessive  as  to  be  set  aside.  Howe  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  R.  Co.  62  Minn. 
71,  64  N.  W.  102,  .30:  684 

360.  A  verdict  for  $3,500  for  an  injury  to 
a  laborer  who  is  shot  in  the  finger  and 
through  his  thumb,  and  whose  right  arm  is 
perforated  with  shot  from  the  shoulder  to 
his  hand,  many  of  which  are  never  extract- 
ed, and  whose  right  leg  also  receives  sever- 
al shot  by  which  his  capacity  for  lifting 
is  permanently  affected,  is  not  excessive. 
West  Memphis  Packet  Co.  v.  White,  99 
Tenn.   256,  41    S.  W.   583,  38:  427 

361.  A  verdict  for  $10,000  will  not  be  set 
aside  as  excessive, — especially  if  approved 
by  the  trial  judge, — where  it  is  given  for  in- 
juries by  which  a  woman  is  made  a  cripple 
during  life,  and  subject  to  much  pain  and 
suffering.  Skottowe  v.  Oregon  S.  L.  &  U. 
N.  R.  Co.  22  Or.  430.  .30  Pac.  222,       10:  593 

362.  A  verdict  of  $4,000  for  injury  to  the 
ankle  of  a  A\-Y>man  more  than  seventy-five 
years  old  and  who  has  previously  been 
somewhat  feeble,  from  which  she  suffers 
great  pain  and  is  confined  to  her  bed  for 
three  months,  requiring  constant  care,  and 
who  still  suffers  some  pain  and  can  never 
walk  again  without  a  crutch,  is  excessive. 
Johnson  v.  St.  Paul  Citv  R.  Co.  69  Minn. 
260.  60  X.  W.  900,  "  •  36:  586 

363.  A  verdict  for  $10,000  is  not  excessive 
for  an  injury  to  a  woman's  knee,  althougli 
it  seemed  of  itself  a  comparatively  small 
one,  where  it  caused  a  nervous  shock  which 
resulted  in  the  development  of  heart  dis- 
ease and  left  her  a  helpless  invalid.  Gallo- 
wav  v.  Chicago.  M.  &  St.  P.  R.  Co.  .56  Minn. 
346,  57  X.  W.   1058,  '  23:  442 

364.  Tn  an  action  for  damages  for  person- 
al injuries,  a  verdict  of  a  jury  for  $6,050 
for  plaintiff  is  not  so  large  as  to  justify 
the  intervention  of  the  court,  where  the? 
evidence  showed  that  his  earnings  per  year 
were  $1,150,  that  his  medical  expenses  were 
.$400.  that  he  has  paralysis  from  the  injury 
to  the  spinal  cord,  and  probably  will  not 
recover  from  the  effects  of  the  injury.  Mel- 
lor  v.  Missouri  P.  R.  Co.  105  Mo.  455.  14  S. 
W.  758,  16  S.  W.  849,  10:  36 

305.  Ten  thousand  one  hundred  seventy- 
five  dollars  damages  is  not  so  excessive  as 
to  cause  a  reversal  on  the  ground  of  cor- 
ruption, passion,  or  prejudice,  when  given  to 
a  doctor  sixty  years  old,  who  was  injured  at 
a  railroad  highway  crossing  by  the  com- 
pany's    negligence,    where    his    horse    and 


958 


DAMAGES,  III.  j. 


buggy  were  demolished,  and  he  received 
permanent  injuries,  such  as  a  disfigured  and 
partially  paralyzed  face,  broken  ribs,  lame- 
ness, and  constant  pain  which  disabled  him 
to  some  extent  from  practising  his  pro- 
fession, the  i  eome  from  which  was  $2,500  a 
year  at  the  time  of  the  accident.  Gratiot 
V.  Misisouri  P.  R.  Co.  116  Mo.  450,  16  S.  W. 
384,  19  S.  W.  31,  16:  189 

Loss  of  eye. 

360.  Seven  thousand  dollars  is  not  so 
grossly  excessive  as  to  require  interference 
b;^  the  appellate  court,  as  damages  for 
injuries  to  an  intending  railway  passenger 
by  a  mail  bag  thrown  through  the  station 
window,  which  injuries  were  very  painful, 
and  caused  permanent  disfigurement  and 
loss  of  sight  of  one  eye.  Shaw  v.  Chicago  & 
G.  T.  R.  Co.  123  Mich.  629,  82  N.  W.  618, 

49:  308 

367.  Fifteen  thousand  dollars  is  exces- 
sive to  award  an  employee  as  damages  for 
injuries  resulting  in  severe  pain  for  several 
months  and  in  the  loss  of  an  eye,  where  he 
is  not  wholly  incapacitated  for  labor,  and 
the  interest  on  the  amount  at  4  per  cent 
would  produce  an  income  greater  than  his 
earning  capacity  before  the  injury.  Ribich 
V.  Lake  Superior  Smelting  Co.  123  Mich. 
401,  82  N.  W.  279,  -18:  649 

Loss  of  limb. 

3G8.  A  verdict  of  $15,000  is  not  excessive 
for  injury  to  a  boy  who  was  run  over  by  a 
car  and  one  of  his  legs  crushed  so  that  am- 
putation was  necessarv.  Roth  v.  Union  De- 
pot Co.  13  Wash.  525,'  43  Pac.  641,  44  Pac. 
253,  31:855 

369.  A  verdict  for  $10,000  is  not  an  ex- 
cessive amount  to  be  awarded  as  damages 
to  a  boy  who,  by  reason  of  defendant's 
negligence,  was  compelled  to  remain  in,  bed 
for  five  months,  suffering  much  pain,  and 
lost  one  leg  entirely,  while  the  other  was 
much  weakened  and  rendered  less  useful. 
Fort  Worth  &  D.  C.  R.  Co.  v.  Robertson 
(Tex.)  16  S.  W.  1093,  14:  781 

370.  Thirteen  thousand  dollars  is  exces- 
sive to  award  as  damages  for  negligently 
knocking  down,  severely  bruising,  and  caus- 
ing loss  of  an  arm  by,  a  laborer  thirty-four 
years  old  who  was  earning  $1  per  day. 
Louisville  &  N.  R.  Co.  v.  Lowe  (Ky.)  66 
S.  W.  736,  65:  122 

h.  Death. 

Measure    of    Damages    for.    Generally,    see 
supra,  III.  i,  3. 

Children. 

371.  Two  thousand  dollars  damages  were 
awarded  for  the  death  of  plaintiff's  son,  be- 
tween eighteen  and  nineteen  years  of  age, 
who  was  robust,  earning  $25  per  month,  and 
who  was  a  dutiful  son  employing  his 
wages  tor  the  benefit  of  his  father's  family. 
Myhan  v.  T^uisiana  Electric  Light  &  P.  Co. 
41  La.  Ann.  964,  6  So.  799,  7:  172 
Adult. 

372.  Nine  thousand  dollars  is  not  exces- 
sive, as  matter  of  law,  to  be  allowed  for  the 
negligent  killing  of  a  man  thirty-two  years 
old,  of  good    habits    and    business    ability. 


Louisville  &  N.  R.  Co.  v.  Weaver,  108  Kv.. 
392,  56  S.  W.  674,  50:  381 

373.  A  recovery  of  $4,000  is  held  not  ex- 
cessive for  the  death  of  a  workman  thirty- 
one  years  of  age.  Bright  v.  Barnett  &  R, 
Co.  88  Wis.  299,  60  N.  W.  418,  26:  524 

374.  Seven  thousand  dollars  and  $5,000, 
respectively,  are  not  excessive  damages  for 
the  negligent  killing  of  the  captain  and 
cook  of  a  sailing  vessel,  the  former  of  whom 
was  thirty-five  years  old  and  earning  $100 
per  month,  and  the  latter  thirty-nine  years 
old  and  earning  $50  per  month,  both  being 
in  good  physical  condition.  Humboldt 
Lumber  Mfg.  Asso.  v.  Christopherson,  19  C. 
C.  A.  481,  44  U,  S.  App.  434,  73  Fed.  239, 

46:264 

375.  A  verdict  for  $1,000  damages  for  the 
negligent  killing  of  a  widower  seventy-three 
years  old,  who  was  strong  and  vigorous  for 
his  age  and  actively  engaged  in  business, 
will  not  be  set  aside  as  excessive,  although 
his  children  are  all  of  mature  years  and 
not  dependent  upon  him  for  support. 
Wabash  v.  Carver,  129  Ind.  652,  29  N.  E.  25, 

13:  851 

376.  Four  thousand  dollars  is  excessive 
compensatory  damages  for  the  death  of  a 
man  sixty-eight  years  old,  whose  net  worth 
at  the  time  of  his  death  was  little  more 
than  $6,400,  and  whose  annual  income  aria- 
ing  from  his  personal  exertions,  after  de- 
ducting personal  expenses,  ^as  $1,000,  in 
an  action  by  persons  whose  sole  claim  is 
for  diminution  of  the  estate  in  which  they 
are  entitled  to  share.  Denver  &  R.  G.  R. 
Co.  V.  Spencer.  27  Colo.  313,  61  Pac.  606, 

51:  121 

377.  The  sum  of  $8,000  is  an  excessive  al- 
lowance for  injuries  resulting  in  the  death 
six  or  seven  months  later,  of  an  unskilled 
laborer  twenty-three  years  old,  who,  with- 
out any  family  to  support,  had  saved  noth- 
ing from  his  earnings,— especially  when 
$5,000  is  the  statutory  limit  of  recovery  for 
death  resulting  from  injuries  immediately. 
O'Donnell  v.  Maine  C.  R.  Co.  86  Me.  552.  30 
Atl.  116,  25:  658 

378.  A  recovery  for  $13,000  damages  is 
excessive  and  should  be  reduced  to  $10,000 
in  an  action  for  the  death  of  a  man  thirty- 
eight  years  old  in  good  health  and  earning 
$50  per  month  which  he  contributed  to  the 
support  of  his  wife  and  seven  children,  the 
eldest  of  whom  was  seventeen  years  of  age, 
where  the  measure  of  damages  is  the  pe- 
cuniarv  loss.  English  v.  Southern  P.  Co.  13 
Utah,  407,  45  Pac":  47,  35:  155 

j.  Injury;  Taking  or  Detention  of  Personal 
Property. 

Corporate  Stock  Wrongfully  Taken  by  Pro- 
moters, see  Corporations.  340. 
For  Editorial  Notes,  see  infra,  V.  §  13. 

Injury  or  destruction. 
Loss  of  Profits,  see  infra,  613,  614. 
Reduction  of  Damages,  see  infra,  665. 
Evidence  as  to,  see  Evidence,  1851. 
Allowance  of  Interest,  see  Interest,  36. 
For  Editorial  Notes,  see  infra,  V.  §§  13,  15. 
370.  The    infection    of    sound    hogs,   with 


DAMAGES.    III.  j. 


959 


which  they  tire  innocently  placed  by  a  re- 
mote purchaser,  is  a  legal  consequence  of 
the  sale,  as  sound,  of  animals  suffering  from 
an  infectious  disease,  so  as  to  render  the 
seller  liable  for  the  resulting  loss.  Skinn  v. 
Reutter,  135  Mich.  57,  97  N.  W.  152,     63:  743 

380.  Expenses  incurred  in  good  faith  in 
attempting  a  cure  may  be  included,  in  ad- 
dition to  the  actual  value  of  the  animal,  in 
the  damages  for  an  injury  by  which  an 
animal  is  made  entirely  worthless.  Ellis  v. 
Hilton,  78  Mich.  150,  43  N.  W.  1048,      6:  454 

381.  In  an  action  by  a  florist  to  recover 
damages  against  the  owner  of  pipes  from 
which  gas  escaped,  to  the  injury  of  his 
plants,  the  full  damage  to  them  is  a  proper 
matter  of  inquiry;  but  a  claim  for  injury 
to  the  plaintiff's  business  reputation  on  ac- 
count of  sales  of  damaged  plants  is  con- 
jectural and  too  remote  to  be  allowable. 
Dow  V.  Winnipesaukee  Gas  &  E.  Co.  69  N. 
H.  312,  41  Atl.  288,  ,  42:  569 

382.  In  an  action  to  recover  damages  for 
injuries  to  property  from  the  negligent 
operation  of  railroad  locomotives  in  such 
manner  as  to  cause  them  to  emit  smoke 
denser  and  more  offensive  in  quality  and 
greater  in  volume  than  reasonably  required 
for  the  proper  operation  of  the  railroad, 
where  the  evidence  shows  such  negligent 
operation,  and  substantial  damage  to  the 
plaintiff's  property  directly  attributable 
thereto,  recovery  cannot  be  limited  to  nomi- 
nal damages,  on  the  ground  of  inherent  im- 
possibility of  determining  how  much  of  the 
damage  was  caused  by  smoke  necessarily 
emitted  in  the  careful  operation  of  the  rail- 
road, and  how  much  was  caused  by  the 
smoke  that  was  due  to  negligent  operation. 
Jenkins  v.  Pennsylvania  R.  Co.  (N.  J.  Err.  & 
App.)  67  N.  J.  L.  331,  51  Atl.  704.      57:  309 

383.  The  measure  of  recovery  for  injury 
to  chattels  which  are  not  wholly  destroyed 
is  the  difference  between  the  value  im- 
mediately before  and  immediately  after  the 
injury;  and  the  owner  cannot  recover  more 
than  this  by  reason  of  voluntary  abandon- 
ment of  what  remains.  Chicago,  B.  &  Q.  R. 
Co.  V.  Metcalf.  44  Neb.  848,  63  N.  W.  51. 

28:  824 

384.  A  verdict  for  $475  is  excessive  where 
that  appears  to  have  been  the  whole  value 
of  the  property,  and  the  evidence  shows 
that  $30  could  have  been  obtained  for  the 
propertv  after  it  was  damaged.  Gulf,  C.  & 
S.  F.  R.  Co.  V.  Johns(5n,  71  Tex.  619.  9  S. 
W.  602,  1 :  730 

385.  The  measure  of  damages  for  property 
destroyed  by  negligence  is,  in  the  absence 
of  wilfulness  or  malice,  the  value  of  the 
propertv  at  the  time  of  the  destruction, 
with  interest.  Jacksonville,  T.  &  K.  W.  R. 
Co.  V.  Peninsular  Land.  I.  &  Mfg.  Co.  27 
Fla.  1,  157,  2  So.  661,  9  So.  689,  17:  33 

380.  The  measure  of  damages  for  the 
wrongful  killing  of  horses  is  their  value  for 
the  purposes  for  which  they  were  used,  and 
not  the  market  value  of  horses  generally  in 
that  locality.  Loesoh  v.  Koehler.  144  Tnd. 
278.  41  N.  E.  326,  43  N.  E.  129,  35:  682 

Detention. 

387.  The  measure  of  damages  for  the  un- 


lawful detention  of  a  piano  is  its  rental 
value.  Chauvin  v.  Valiton,  8  Mont.  451, 
20  Pac.  658,  3:  194 

388.  Damages  for  detention  of  a  boat  by 
obstruction  of  navigation,  where  other 
means  of  transportation  were  not  provided, 
will  not  include  the  cost  of  loading  and  un- 
loading and  of  damage  to  the  cargo  by  ex- 
posure after  unloading.  Farmers'  Co-Op. 
Mfg.  Co.  V.  Albemarle  &  R.  R.  Co.  117  N.  C. 
579,  23  S.  E.  43,  29:  700 

389.  The  value  of  receipts  in  color  books 
owned  by  a  color  mixer  who  entered  them 
therein,  instead  of  entering  them  in  his  em- 
ployers' books  as  it  was  his  duty  to  do,  can- 
not be  considered  in  estimating  the  dam- 
ages, if  any,  which  he  can  recover  from 
them  for  detaining  those  books,  on  the  sup- 
position that  they  belonged  to  them,  when 
he  undertook  to  carry  them  away.  Dempsey 
V.  Dobson,  174  Pa.  122,  34  Atl.  459,  32:  761 
Conversion. 

By  Carrier,  see  supra,  236. 

Evidence   as   to,   see   Evidence,    1822,    1824, 

2037. 
Allowance  of  Interest,  see  Interest,  40. 
Instructions  as  to,  see  Trial,  765. 
See  also  supra,  387. 
For  Editorial  Notes,  see  infra,  V.  §§  5,  13, 

24. 

390.  The  damages  recoverable  in  trover  by 
one  who  has  retained  title  to  the  property 
as  security  for  purchase  money  are  limited 
to  the  balance  due  him  thereon,  less  any 
depreciation  in  its  value  by  the  use  which 
he  had  authorized.  Wood  v.  Nichols,  21  R. 
I.  537,  45  Atl.  548,  48:  773 

391.  In  trover  the  rule  of  damage  is 
proper  compensation  for  the  property  taken 
and  converted,  regardless  of  the  manner  of 
the  entry  and  taking.  Omaha  &  G.  Smelt- 
ing &  R.  Co.  v.  Tabor,  13  Colo.  41,  21  Pac. 
925,  5:  236 

392.  In  trover  for  or  wrongfully  taken  by 
defendant  from  plaintifTs  mine,  the  measure 
of  damage  is  the  value  of  the  ore  so  taken, 
less  the  reasonable  and  proper  cost  of  rais- 
ing it  from  the  mine  after  it  was  broken, 
and  hauling  to  the  place  of  its  disposal,  to- 
gether with  legal  interest  from  the  time 
of  the  conversion  on  the  sura  so  found.     Id. 

393.  The  measure  of  damages  for  the  con- 
version of  a  debtor's  property  in  fraud  of 
law  by  a  creditor,  when  sued  by  an  assignee 
for  creditors,  is  the  value  of  the  property  at 
the  time  it  was  taken.  Cramton  v.  Valido 
Marble  Co.  60  Vt.  291.  15  Atl.  153,      1:  120 

394.  For  the  conversion  of  notes  by  a 
pledgee  by  surrendering  them  to  the  maker 
in  exchange  for  bonds  without  authority 
from  the  pledgeor,  he  is  liable  to  the  latter 
for  their  actual  value  only  if  that  is  less 
than  their  face  value.  Griggs  v.  Day.  136  N. 
Y.  152,  .32  N.  E.  612,  *    18:  120 

395.  The  measure  of  damages  in  trover 
for  conversion  of  an  insurance  policy,  where 
its  collectible  value  is  not  shown,  is  the 
sum  expressed  upon  its  face,  with  interest. 
Haves  v.  Massachusetts  Mut.  L.  Ins.  Co.  125 
111.' 626.  18  N.  E.  322,  1:  303 

396.  The  measure  of  damages  for  the 
conversion,  by  a  pledgee,  through    an    un- 


960 


DAMAGES.  Ill,  k,  1. 


authorized  sale  by  mistake  and  not  in  bad 
faith,  of  corporate  stock  deposited  by  the 
owner  as  collateral  security,  is  what  it 
would  have  cost  the  owner  to  repurchase 
the  stock  within  a  reasonable  time  after 
notice  of  its  sale,  less  the  debt  secured 
thereby,  with  interest.  Wright  v.  Bank  of 
the  Metropolis,  110  N.  Y.  237,  18  N.  E.  79„ 

1:289 

397.  The  measure  of  damages  for  the  con- 
version of  a  judgment  in  favor  of  a  part- 
nership by  a  former  member  of  the  firm  who 
wrongfully  discharged  it  is  the  value  of  the 
judgment  at  the  date  of  the  conversion. 
Langford  v.  Rivinus,  45  U.  S.  App.  79,  75 
Fed.  959,  21  C.  C.  A.  581,  33:  250 

398.  Damages  for  the  conversion  of  logs, 
in  an  action  against  one  who  purchased 
them  innocently  from  an  inadvertent  tres- 
passer, are  measured  by  the  value  of  the 
logs  immediately  after  severance,  with  inter- 
est thereon,  excluding  any  enhancement  of 
the  value  bv  transportation  to  another 
place.  White'  v.  Yawkey,  108  Ala.  270,  19 
So.  360,  32:  199 
Property  replevied. 

Evidence  as  to  Value  of  Articles  Taken,  see 
Evidence,  1828. 
300.  Where  an  officer  from  whom  attached 
property  has  been,  replevied  obtains  judg- 
ment therefor,  his  measure  of  damages  is 
the  amount  due  the  attaching  plaintiffs  at 
the  time  of  the  replevin,  not  exceeding  the 
value  of  the  property  and  not  including 
writs  of  attachment  coming  to  him  after 
the  property  was  taken  in  replevin.  Sloan 
v.  Coburn.  26  Xeb.  607,  42  N.  W.  726, 

4:  470 

k.  Injury  to  Real  Property;  Nuisance. 

1.  In  General. 

Measure  of  Damages  for  Breach  of  Con- 
tract as  to,  see  supra.  III.  a,  3. 

For  Fraud  on  Sale  of,  see  supra,  250-264. 

Time  for  \^Tiich  Recoverable,  see  infra,  640. 

Loss  of  Profits,  see  infra,  615. 

Reduction  of  Damages,  see  infra,  665. 

Condemnation  or  Depreciation  in  Value  by 
Eminent  Domain,  see  infra.  III.  1. 

Damages  for  Detention  of  Dower,  see 
Dower,  72,  73. 

Evidence  as  to,  see  Evidence.  1839,  1870- 
1883. 

See  also  supra.  06,  249. 

For  Editorial  Xotes,  see  infra,  V.  §§  14,  15. 

400-401,  The  cost  of  restoring  land  to  its 
former  condition  is  the  proper  measure  of 
damages  for  injury  thereto,  when  this  is 
less  tlian  the  diminution  in  the  market 
value  of  the  whole  property  by  reason  of 
the  injury;  but.  if  the  cost  of  restoring  is 
more  than  the  diminution,  the  latter  is  gen- 
eral'v  the  true  measure  of  damages.  Harts- 
horn' v.  Chaddock,  135  N.  Y.  116,  31  X.  E. 
907.  17:426 

40'i.  The  measure  of  damages  in  ejectment 
for  withlinlfling  possession  of  land  is  tho 
aotunl  rental  value  of  the  land,  irrespoctivo 
of  what  the  defendant  may  have  gathered 


from  it.     Credle  v.  Ayers,  126  N.  C.  11,  35 
S.  E.  128,  48:  751 

403.  The  damages  recoverable  by  a  ten- 
ant, reversioner,  or  remainderman  for  a 
tort  upon  realty  which  affects  his  e.state  are 
limited  to  the  injury  done  to  his  estate;  and 
neither  of  such  parties  can  recover  the  en- 
tire injury  to  both  present  and  future  es- 
tates. Jordan  v.  Benwood,  42  W.  Va.  312, 
26  S.  E.  266,  36:  519 

404.  Recovery  against  an  attorney  in  fact 
for  the  use  of  a  farm  in  his  possession  and 
control  is  limited,  in  the  absence  of  any 
dereliction  of  duty  on  his  part,  to  the  pro- 
ceeds received  by  him  therefrom,  less  proper 
expenditures,  and  cannot  be  extended  to  the 
rental  value  of  the  farm,  if  that  amounts 
to  a  greater  sum.  Royston  v.  McCulley 
(Tenn.  Ch.)  59  S.  W.  725,  52:  899 

405.  Where  a  single  trespass  is  com- 
mitted on  two  contiguous  lots  of  the  plain- 
tiff, it  is  proper  to  assess  the  damages  to 
both  lots  together,  although  they  may  not 
have  been  so  used  by  the  owmer  in  connec- 
tion with  each  other  that  they  would  be 
considered  one  tract  in  condemnation  pro- 
ceedings bv  a  railway  company.  Lamm  v. 
Chicago,  St,  P,  M.  &  O.  R.  Co.  46  Minn.  71, 
47  N.  W.  455,  10:  268 
Forcibls  entry  or  possession. 

See  also  supra,  56-58. 

406.  In  addition  to  nominal  damages  for  a 
forcible  entry  upon  the  peaceable  posses- 
sion of  plaintiff,  even  by  the  owner,  he  can 
recover  for  any  injury  inflicted  upon  his 
person  or  personal  propertv.  Mosseller  v. 
Deaver.  106  N,  C.  494,  11  Sl  E.  529,     8:  537 

407.  The  damages  to  be  paid  by  one  who 
takes  from  another  forcible  possession  of 
real  estate  claiming  as  an  officer  of  a  reli- 
gious society  which  owns  the  property,  in 
case  it  subsequently  appears  that  his  claim 
to  the  office  was  invalid  and  his  action 
therefore  wrongful,  are  merely  such  as  will 
make  just  compensation  for  the  injurv  done. 
Irwin  v.  Hess,  176  Pa.  594,  35  Atl.  217, 

35:  415 
Injury  to  lateral  or  surface  support. 
See  also  infra.  531,  540. 
For  Editorial  Notes,  see  infra,  V.  §  14. 

408.  The  measure  of  damages  for  r—iiov- 
ing  the  lateral  support  to  land  is  not  the 
cost  of  repairing  it,  but  the  diminution  of 
value  bv  reason  of  the  act.  Moellering  v. 
Evans,  i21  Tnd.  19.5,  22  N.  E.  989.  6:  449 

409.  Impairment  of  lateral  support  cannot 
be  considered  in  estimating  the  damages 
which  an  abutting  owner  may  recover  where 
a  railroad  company  appropriates  an  alley 
for  the  full  width  thereof,  and  makes  a  deep 
excavation  close  to  the  lot  line;  and  his 
damages  are  restricted  to  the  special  injury 
sustained  by  him  because  of  access  to  and 
egress  from  his  property  beiner  cut  off. 
Kansas  Citv  X.  W.  R.  Co.  v.  Schwake,  70 
Kan,  141,  78  Pac,  431,  68:  673 

410.  The  measure  of  damage  to  a  surface 
owner  from  removal  of  the  support  for  his 
'nnd  by  moans  of  mining  operations  is  the 
nr-tiinl  loss  sustained  to  the  land  and  build- 
incrs  by  reason  of  the  cave-in,  and  not  the 
difference,  in  market  value  before  and  after 


DAMAGES,  III.  k.  2. 


961 


the  injury.     Xoonan  v.  Pardee.  200  Pa.  474, 
50  Atl.  255,  55:  410 

Eviction  of  life  tenant. 

411.  Damages  for  eviction  of  a  life  tenant 
from  a  room  in  a  house  include  the  rental 
value  up  to  the  commencement  of  the 
action,  and  the  present  worth  of  the  rental 
value  from  the  time  forward  during  the  life 
tenant's  expectation  of  life,  based  upon 
mortality  tables.  Grove  v.  Youell,  110 
Midi.  285.  08  X.  W.  132.  33:297 
Mining  coal. 

See  also  suj)ra,  410. 

412.  The  measure  of  damages  for  coal 
mined  in  good  faith  by  a  tenant  in  common 
who  has  a  contract  with  the  father  of  the 
tenants,  who  are  infants,  and  .under  a  be- 
lief that  the  purchase  will  be  ^ultimately 
perfected  by  the  probate  court  or  by  the 
infants,  on  arriving  at  full  age,  is  the  value 
of  the  coal  in  j)laco  at  the  time  it  was 
mined.  Kevs  v.  Pittsburg  &  W.  Coal  Co. 
58  Ohio  St. ■240.  50  X.  E.  Oil,  41:  681 

413.  In  fixing  the  value  of  coal  mined  in 
good  faith  but  without  right,  by  a  tenant  in 
common,  the  existence  of  entries,  tramways, 
etc.,  owned  by  him  on  other  lands,  as  well 
as  every  other  circumstance,  natural  or 
artificial,  which  tends  to  enhance  or  di- 
minish the  value,  should  be  considered.  Id. 
Quarrying  stone. 

414.  The  measure  of  damages  for  quarry- 
ing and  carrying  away  stone  by  trespassers, 
in  a  suit  by  lessees  merely  of  the  exclusive 
right  to  quarry  the  stone,  does  not  extend 
to  the  full  value  of  the  stone,  but  merely 
to  the  damages  actually  occasioned  by  in- 
vasion of  such  exclusive  right;  but  nominal 
damages  at  least  should  be  granted.  Baker 
V.  H.art,  123  N.  Y.  470.  25  X.  E.  948,  12:  60 
Removing  corpse  from  burial  lot. 

415.  Damages  for  unlawfully  entering 
upon  a  woman's  burial  lot  and  removing 
tliercfrom  the  body  of  her  deceased  sister, 
at  the  instance  of  the  latter's  former  hus- 
band, will  be  measured  by  the  injuries  done 
to  the  lot,  where  the  proceeding  is  with  due 
proprietv  and  decencv.  Pulsifer  v.  Doug- 
lass, 04  Me.  .556,  48  Atl.  118,  .53:  2,38 
Failure  of  railroad  to  fence. 

416.  Damages  of  a  landowner  for  the  fail- 
ure of  a  railroad  company  to  build  railroad 
fences  include  the  loss  of  his  privilege  to 
connect  his  fences  with  such  fences  for  the 
purpose  of  making  an  inclosure.  Gould  v. 
Great  Northern  E.  Co.  63  Minn.  37,  65  N. 
W.  125,  30:  590 

2.  Injury  to.  or  Destruction  of.  Buildings  or 
Trees. 

Duty  to  Prevent    Unnecessary    Amount    of 

Injury,  see  supra,  19. 
Evidence  as  to  Value  of  Trees,  see  Evidence, 

1840. 
Deduction    from    Purchase    Price    for,    see 

Vendor  and  Purchaser,  22. 
See  also  infra,  433,  531. 
For  Editorial  Notes,  see  infra,  V.  §  14. 

417.  The  measure  of  damages  for  injuring 
L.R.A.  Dig.— 61. 


a  building  by  the  use  of  explosives  near  it 
is  the  cost  of  restoring  it  to  its  former 
condition.  Fitzsimona  &  C.  Co.  v.  Braun. 
199  111.  .390.  65  X.  E.  249,  59:  421 

418.  The  mea.sure  of  damages  for  partial 
destruction  of  a  building  is  the  reasonable 
cost  of  restoring  it  so  that  it  will  be  as 
valuable  as  it  was  before,  considering  its 
age  and  depreciation:  and  it  is  not  the  cost 
of  a  new  building  the  same  as  that  de- 
stroyed. Anderson  v.  Miller,  96  Tenn.  35,  33 
S.  W.  615,  31:604 

419.  The  owner  of  a  building  negligently 
destroyed  by  fire  while  in  possession  of  a 
tenant  cannot  recover  from  the  one  respon- 
sible for  the  loss  the  whole  value  of  it,  but 
from  such  value  must  be  deducted  the  value 
of  the  leasehold.  Nashville,  C.  &  St.  L.  R. 
Co.  v.  Heikens.  112  Tenn.  378,  79  S.  W. 
1038,  65:  298 

420.  The  measure  of  damages  for  destruc- 
tion or  injury  of  buildings,  trees,  etc.,  by 
fire  set  by  locomotives  is  the  difference  in 
value  of  such  buildings,  trees,  etc..  before 
and  after  the  injury,  and  not  the  difference 
in  value  of  the  land.  White  v.  Chicago,  M. 
&  St.  P.  R.  Co.  1  S.  D.  326,  47  N.  W.  146. 

9:824 

421.  The  measure  of  damages  for  the 
wrongful  destruction  of  trees,  if  the  action 
is  brought  for  the  value  of  the  trees,  is  the 
market  value  independent  of  the  real 
estate;  but  if  the  action  is  brought  for  the 
injury  to  the  real  estate  the  measure  of 
damages  is  the  diminished  value  of  such 
estate.  Bailey  v.  Chicago,  M.  &  St.  P.  R. 
Co.  3  S.  D.  531,  .54  N.  W.  596,  19:  653 

422.  The  measure  of  damages  for  a  de- 
struction of  fruit  trees  is  the  difference  be 
tween  the  value  of  the  realty  before  and 
after  the  destruction  of  the  trees.  Dwight 
V.  Elmira  C.  &  N.  R.  Co.  132  N.  Y.  199,  30 
N.  E.  398,  15:  612 

423.  Damages  to  shade  trees  are  measured 
by  the  difference  between  the  value  of  the 
land  before  and  after  the  injury.  Evans  v. 
Keystone  Gas  Co.  148  N.  Y.  112,  42  N.  E. 
513,  30:  651 
Cutting  timber. 

See  also  supra,  58. 

For  Editorial  Notes,  see  infra,  V.  §  14. 

424.  In  trespass  for  cutting  timber, 
against  one  who  acted  in  the  honest  but 
mistaken  belief  that  the  trees  were  his,  the 
measure  of  damages  is  their  value  in  the 
woods  from  which  they  were  taken,  together 
with  the  injury  incident  to  their  removal. 
Gaskins  v.  Davis.  115  N.  C.  85,  20  S.  E.  188. 

25:  813 

425.  The  value  of  the  lumber  at  the  place 
of  disposal,  without  any  allowance  for  ex- 
penditure in  wrongfully  cutting  and  remov- 
ing standing  timber  from  the  premises  is 
the  measure  of  damages  against  a  mort 
gagce  in  possession  for  thus  wrongfully 
wasting  the  premises  after  he  had  received 
all  that  was  due  him  on  his  mortgage  by 
conversion  of  personal  property.  Whiting 
▼.  Adams.  66  Vt.  679,  .30  Atl.  32.  25:  598 


962 


DAMAGES,  III.  k.  3,  4. 


3.  Injury  to  Water  Rights;  Overflows. 

Evidence  as  to,  see  Evidence,  1879. 

Injury  to,  or  loss  of,  access. 

For  Editorial  Notes,  see  infra,  V.  §  14. 

426.  Substantial  damages  cannot  be  re- 
covered by  a  riparian  owner  for  injuries  to 
his  right  of  access  by  one  dredging  the 
channel  under  government  authority  which 
makes  him  responsible  if  he  deprives  ri- 
parian wvners  of  any  of  their  rights,  where 
no  actual  injury  on  that  account  is  proved. 
Slingerland  v.  International  Contracting  Co. 
169  y.  Y.  60,  61  N..E.  995,  56:  494 

427.  Where  riparian  property  has  been 
injured  by  lowering  the  level  of  the  water 
so  as  to  interfere  with  access  between  the 
water  and  land,  the  measure  of  damages  is 
the  difference  in  value  of  the  property  be- 
fore and  after  the  injury  was  done,  and  not 
the  cost  of  changes  made  to  avoid  the  result 
of  the  change  in  conditions.  Beidler  v. 
•Sanitarv  District.  211  111.  628,  71  N.  E.  1118, 

67:  820 

428.  The  diminished  rental  or  usable  value 
of  uplands,  in  consequence  of  the  loss  of  ac- 
cess to  the  river  by  construction  of  a  rail- 
way embankment,  is  to  be  determined  ac- 
cording to  the  existing  condition  of  the 
premises,  and  not  with  reference  to  what 
the  usable  value  might  have  been  if  they 
had  been  put  to  difTcrent  uses.  Rumsey  v. 
New  York  &  N.  E.  R.  Co.  133  N.  Y.  79.  30 
N  R.  654.  15:  618 
Obstruction  or  diversion;  overflow. 
Prr.<^])(;etive  Damages,  see  infra,  640. 

429.  In  fixing  the  damages  for  changing 
the  current  of  a  stream  so  as  to  destroy  its 
habit  of  depositing  sand  upon  the  shore  of 
a  riparian  owner,  the  jury  may  consider  its 
location  with  respect  to  market,  the  cost 
and  risk  of  mining  and  marketing,  its 
valuo.  the  past  annual  output,  and  its  per- 
ennial character.  Freeland  v.  Pennsvlvania 
R.  Co.   197  Pa.  529,  47  Atl.  745,         58:  206 

430.  The  measure  of  damages  to  be  re- 
covered by  the  owner  of  a  dam  and  pond 
from  one  who  wilfully  diverts  water  from 
the  pond  without  right  is  the  market  value 
of  the  power  actually  taken,  with  aimual 
interest,  notwithstanding  the  owner  had  no 
facilities  for  using  the  power,  so  that  it 
would  have  gone  to  waste  had  it  not  been 
taken  and  used  by  the  wrongdoer.  Green 
Bay  &  M.  Canal  Co.  v.  Kaukauna  Water 
Power  Co.  112  Wi«.  .",23.  87  N.  W.  864, 

62:  579 

431.  An  obstruction  in  the  bed  of  a  river, 
caused  by  the  bulging  out  of  a  stratum  of 
plastic  clay,  dne  to  pressure  of  a  railroad 
embankment  near  the  riverside,  although 
the  result  was  entirely  unforeseen,  is  the 
immediate  and  direct  result  of  the  construc- 
tion of  the  embankment,  for  which  the  rail- 
road is  liable,  and  not  a  merely  indirect, 
remote,  or  consequential  result.  Northern 
P.  R.  Co.  V.  I'nite.l  States.  44  C.  C.  A.  135, 
104  Fed.  691,  59:  80 

4.32.  A  defendant  who  has  collected  water 
into  artificial  channels  and  cast  it  upon  the 
land  of  the  plaintiff  wrongfully  i~  liable  for 


all  the  damages  inflicted  thereby  upon  the 
latter,  although  the  plaintiff  could  have  pre- 
vented the  damage  by  a  trifling  expense 
and  by  a  reasonable  exertion.  Paddock  v. 
Somes,  102  Mo.  226,  14  S.  W.  746,      10:  254 

433.  The  value  of  crops  and  trees  de- 
stroyed, and  the  difference  in  value  of  land 
immediately  before  and  after  the  depositing 
of  sand  and  clay  thereon,  may  ue  given  as 
the  measure  of  damages  for  negligently 
causing  the  collection  of  surface  waters 
thereon.  Fremont.  E.  &  M.  V.  R.  Co.  v. 
Harlin,  50  Neb.  698,  70  N.  W.  263,     36:  417 

434.  The  value  of  a  crop  destroyed  by  an 
overflow  of  surface  water  is  not  allowable 
as  damages  for  an  obstruction  tp  the  flow 
of  the  water,  if  it  was  plainly  useless  to 
plant  any  crop  because  it  was  certain  to  be 
flooded  and  destroyed;  but  in  such  cases 
the  rental  value  and  permanent  injury  to 
the  land,  if  any,  constitute  the  measure  of 
damages.  Willitts  v.  Chicago,  B.  &  K.  C.  R. 
Co.  88  Iowa,  281.  55  N.  W.  313,  21:  608 

435.  The  measure  of  damages  for  the  ob- 
struction of  water  by  a  Railroad  embank- 
ment lawfully  built  is  the  difference  in  the 
value  of  land  as  it  is  and  as  it  would  have 
been  with  the  road  properly  built.  Ridley 
V.  Seaboard  &  R.  R.  Co.  118  N.  C.  996.  24  S. 
E.  7.30,  32:  708 
Pollution. 

For  Editorial  Notes,  see  infra,  V.  §  16. 

436.  Damages  on  account  of  the  pollu- 
tion of  a  stream,  causing  the  emanation  of 
vile  and  noxious  odors,  are  not  restricted  to 
mere  depreciation  of  property,  but  may  also 
include  the  inconvenience  and  discomfort 
caused  to  the  owners  and  their  families. 
Weston  Paper  Co.  v.  Pope.  155  Ind.  394,  57 
N.  E.  719,  56:  899 
Well. 

437.  The  cost  of  appliances  purchased  in 
an  attempt  to  procure  water  from  a  well 
after  its  flow  had  been  impaired,  and  not  the 
value  of  the  use  of  such  appliances,  is  to 
be  considered  as  an  element  of  damages  for 
interfering  with  the  flow,  where  it  appears 
that  they  were  ineffectual,  and  does  not  ap- 
pear that  they  added  to  the  value  of  the 
property  or  were  of  value  after  use.  Willis 
V.  Perry,  92  Iowa.  297.  60  N.  W.  727, 

26:  124 
4.  Nuisances. 

Time    for    Which    Recoverable,    see    infra, 

650-652. 
Evidence    as    to,    see    Evidence    1850,    1870, 

1871. 
For  Editorial  Notes,  see  infra,  V.  §  18. 

438.  In  an  action  to  abate  a  nuisance  and 
for  damages  the  recovery  is  not  limited  to 
the  damages  to  the  land  and  its  rental 
value.  Van  Fossen  v.  Clark,  113  Iowa.  86. 
84  N.  W.  989,  52:  279 

439.  The  difference  between  the  rental 
value  of  premises  free  from  the  effect  of  a 
nuisance,  and  subject  to  it,  is  the  measure 
of  damages  for  the  nuisance.  Kiel  v. 
•Tackson.  13  Colo.  .378.  22  Pac.  504,       6:  254 

440.  The  depreciation  in  rental  value  of 
property  by  the  maintenance  of  a  nuisance 


DAMAGES,  III.  1,  1. 


968 


on  adjacent  premises  may  be  considered  in 
estimating  the  damages  to  be  awarded  for 
the  injury  to  the  property,  although  it  is 
occupied  by  the  owner  himself  as  a  dwell- 
ing. Swift  V.  Broyles,  115  Ga.  885,  42  S.  E. 
277,  58:  390 

441.  In  assessing  the  damages  for  the 
maintenance  of  a  nuisance  in  the  neighbor- 
hood of  a  residence,  the  jury  may  look  to 
such  injury  as  occurs  to  the  use  of  the 
property  as  a  residence,  taking  into  con- 
sideration the  discomfort  and  annoyance 
which  the  owner  has  suffered  from  the 
nuisance.  Louisville  &  N.  Terminal  Co.  v. 
Jacobs,  109  Tenn.  727,  72  S.  W.  954,    61:  188 

442.  That  a  home  is  less  desirable  and  its 
selling  value  has  been  reduced  are  not 
proper  subjects  of  consideration^  in  deter- 
mining the  damages  to  be  paid  to  its  owner 
by  one  locating  a  manufacturing  establish- 
ment in  its  vicinity.  Robb  v.  Carnegie,  145 
Pa.  324,  22  Atl.  649,  14:  329 

443.  Entire  damages,  including  those 
which  will  arise  in  the  future,  can  be  re- 
covered for  a  nuisance  only  when  the  cause 
of  injury  is  permanent  and  the  recovery  will 
confer  a  license  for  its  continuance,  but  not 
where  the  injury  is  not  permanent,  but  one 
which  it  may  be  presumed  the  defendant 
will  remove  rather  than  suffer  the  entire 
damages.  Watts  v.  Norfolk  &  W.  R.  Co. 
39  W.  Va.  196,  19  S.  E.  521,  23:  674 

444.  Benefits  realized  by  a  person  because 
of  the  establishment  in  his  vicinity  of  a 
manufacturing  concern  are  to  be  considered 
in  determining  the  damages  which  must  be 
paid  him  for  injuries  done  to  his  property 
by  such  concern.  Robb  v.  Carnegie,  145  Pa. 
324,  22  Atl.  649.  14:  329 
Injury  to  crops. 

See  also  supra,  433,  434. 

445.  Diminution  in  quantity  or  value  of 
crops  as  shown  by  a  comparison  with  years 
when  the  establishment  was  not  there,  and 
in  the  value  of  the  farm  by  the  deposit 
thereon  of  foreign  and  sterilizing  substances, 
as  shown  by  chemical  analysis,  is  a  proper 
element  of  damages  to  be  recovered  by  the 
owner  of  a  farm  from  the  proprietor  of  a 
manufacturing  establishment  located  in  the 
vicinity,  the  operation  of  which  causes  such 
diminution.  Robb  v.  Carnegie,  145  Pa.  324, 
22  Atl.  649,  14:  329 

446.  No  damages  can  be  recovered  by  the 
owner  of  a  farm  for  injuries  to  crops  grow- 
ing thereon  by  gases  from  a  manufacturing 
establishment  in  the  vicinity,  during  years 
in  which  the  farm  was  in  the  possession  of  a 
tenant  who  paid  a  full  rent  for  it.   -        Id. 

1 .  Condemnation  or  Depreciation  in  Value  by 
Eminent  Domain. 

1.  In  General. 

Review  of  Finding   as   to,   sec   Appeal   and 

Error,  793,  794. 
Discrimination     as    to,    see    Constitutional 

Law,  355. 
Evidence  as  to,  see  Evidence,  1874-1883. 
Allowjince    of    Interest,    see    Interest,    42, 

W-46. 


Rate  of  Interest  Allowed,  see  Interest,  90. 

Instructions  as  to,  see  Trial,  763,  764. 

For  Editorial  Notes,  see  infra,  V.  §8  17-19, 

447.  In  proceedings  to  assess  damages  for 
the  taking  of  property  for  railroad  pur 
poses,  whatever  injuriously  affects  the 
owner's  adjoining  property  as  the  direct 
and  necessary  result  of  the  location  of  the 
road  may  be  considered  by  the  jury  in  mak- 
ing their  assessment.  Schuylkill  River  E. 
S.  R.  Co.  V.  Kersey,  133  Pa.  234,  19  Atl.  553. 

7:409 

448.  No  injuries  are  contemplated  in  the 
original  condemnation  of  a  right  of  way  for 
a  canal  for  which  damages  must  be  allowed, 
except  such  as  necessarily  arise  in  the 
proper  construction  of  the  work.  Mullen  v. 
Lake  Druoimond  Canal  &  W.  Co.  130  N.  C. 
496,  41  S.  E.  1027,  61 :  833 

449.  A  state  statute  acquiescing  in  an 
attempt  by  the  Federal  government  to 
acquire  land  within  the  state  for  the  use  of 
such  government  does  not  entitle  the  gov- 
ernment to  employ  the  local  rule  of  dam- 
ages as  the  measure  of  its  liability  for  prop 
erty  taken.  Nahant  v.  United  States,  13(1 
Fed.  273,  69:723 

450.  In  railroad  condemnation  proceed- 
ings, damages  are  recoverable  for  the  re- 
moval of  an  embankment,  although  above 
the  established  grade  of  an  unopened  street, 
on  which  was  placed  a  private  railroad 
siding  leading  to  the  owner's  property. 
Quiglev  v.  Pennsylvania  S.  V.  R.  Co.  121 
Pa.  35,  15  Atl.  478,  1 :  503 

451.  It  is  proper  for  a  railroad  desiring  to 
cross  another  to  pay  the  expense  of  neces- 
sary frogs  and  crossing  apparatus.  Seattle 
&  M.  R.  Co.  V.  State.  7  Wash.  150,  34  Pac. 
551,  22:  217 
Extent  of  property  affected. 

452.  Condemnation  of  a  strip  of  land 
across  a  farm  for  canal  purposes  does  not 
divide  the  farm  into  two  parcels  for  the 
purpose  of  estimating  damages  for  the  con- 
struction of  a  railroad  across  one  of  them, 
although  such  strip  is  taken  in  fee,  and  the 
canal  is  abandoned,  and  the  fee  to  such  strip 
acquired  by  third  persons.  Cameron  v. 
Pittsburgh  &  L.  E.  R.  Co.  157  Pa.  617,  27 
Atl.  668,  22:  443 
Injury  to  business. 

Allowing  for  I^oss  of  Profits,  see  infra,  618. 
Limiting  Period  for  which  Profits  Allowed. 

sec  Appeal  and  Error,  521. 
Evidence  as  to,  see  Evidence,  1880. 
See  also  infra,  471. 
For  Editorial  Notes,  see  infra,  V.  §  25y2. 

4.)3.  The  damage  for  injury  to  one  "own 
ing  a  business  on  land  within  a  town"  by 
the  taking  of  property  for  public  use  for 
which  a  statute  requires  compensation  to  bo 
made  is  not  limited  to  the  decrease  in 
market  value  of  the  business.  Earle  v. 
Com.  180  Mass.  570,  63  N.  E.  10,  57:  292 

Change  of  plan. 

454.  If  a  change    in    the    plan    of    con 
stnicting  a  railroad    across    property    con 
demned,  involving  more  damages,  is  mad(^ 
after   damages   have   been   assessed   or   set- 


9()4 


DAMAGES,  III.  1,  2. 


tied  by  agreement,  the  owner  of  the  land 
may  demand  a  new  assessment, — the  in- 
quiry being  whether  the  land,  as  a  whole, 
is  damaged  more  by  the  railroad  on  its 
present  plan  than  as  it  was  first  construct- 
ed; if  so,  the  amount  ascertained  will  be 
the  damage.  Wabash,  St.  L.  &  P.  R.  Co.  v. 
McDougall,  126  Bl.  Ill,  18  K  E.  291, 

1:207 
Where  use  of  land  changed. 

455.  The  measure  of  damages  recoverable 
by  the  owner  of  the  fee  when  a  railroad 
company  permits  land  condemned  for  its  use 
to  be  put  to  other  uses  is  the  rental  value 
of  the  property  for  such  uses,  where  there  is 
no  injury  to  the  realty.  Lyon  v.  McDonald, 
78  Tex.  71,  14  S.  W.  261,  9:  295 
Growing  crops. 

456.  Crops  planted  by  the  owner  of  land 
after  the  location  of  a  railroad,  Ijut  before 
the  damages  had  been  paid  or  secured,  or 
notice  given  of  an  intent  to  enter,  are  proper 
subjects  for  compensation  when  the  land  is 
taken.  Laflferty  v.  Schuylkill  River  E.  S.  R. 
Co.  124  Pa.  297,  16  Atl.  869,  3:  124 

457.  A  tenant  with  notice  of  the  location 
of  a  railroad  over  the  leased  premises,  who 
plants  crops  thereon  before  the  damages  are 
paid  or  secured,  or  notice  of  entry  given,  is 
entitled  to  the  damages  for  injury  to  the 
growing  crops  bv  the  entrv  of  the  company. 

Id. 
Recovery  by  tenant. 

458.  A  tenant,  on  condemnation  of  a 
portion  of  the  leased  premises,  is  entitled  to 
damages  for  the  value  of  his  leasehold  inter- 
est which  is  taken  .  without  any  deduction 
for  abatement  of  rent.  Stubbings  v. 
Evanston,  136  111.  37,  26  N.  E.  577,  11:  839 
Damages  for  delay  in  lieu  of  interest. 

459.  Damages  for  detention  of  payment 
cannot  be  demanded  in  lieu  of  interest, 
when  the  delay  was  due  to  the  fact  that  the 
demand  made  was  oppressive  and  un- 
reasonable. Philadelphia  Ball  Club  v.  Phila- 
delphia, 192  Pa.  632,  44  Atl.  265,  46:  724 
Telegraph  line  over  railroad  right  of  way. 

460.  Only  nominal  damages  can  be  given 
to  a  railroad  company  for  the  use  by  a 
telegraph  line  of  the  space  occupied  by  its 
posts  and  wires  along  the  railroad  right  of 
way  through  an  agricultural  section  of 
country,  when  the  use  and  occupation  of 
the  right  of  way  for  railroad  purposes  is 
not  interfered  with  or  encumbered  in  any 
way.  Mobile  &  O.  R.  Co.  v.  Postal  Teleg. 
Cable  Co.  101  Tenn.  62.  46  S.  W.  571, 

41 :  403 

461.  For  the  appropriation  bj'  a  magnetic 
telegraph  company  of  part  of  the  right  of 
way  of  a  railroad  company  the  measure  of 
compensation  is  the  amount  of  decrease 
in  the  value  of  the  use  of  the  right  of  way 
for  railroad  purposes  that  will  result  from 
the  easement  appropriated  and  used  b}'  the 
telegraph  company.  Cleveland.  C.  C.  &  St. 
L.  R.  Co.  V.  Ohio  Postal  Teleg.  Cable  Co. 
fiS  Ohio  St.  .306,  67  :<.  E.  890,  62:  941 

462.  The  measure  of  damages  for  a  tele- 
graph line  over  a  railroad  right  of  way  is 
not  the  value  of  the  land  cmbracpd  witliin 
the  right  of  way  l)otwecii  the  polos  and  un- 


der the  wires,  but  it  is  the  e.vteut  to  which 
the  value  of  the  use  of  such  spaces  by  the 
railroad  company  is  diminished  by  the  use  of 
the  same  by  the  telegraph  company  for  its 
purposes.  Mobile  &  O.  R.  Co.  v.  Postal 
Teleg.  Cable  Co.  76  Miss.  731.  26  So.  370. 

45:  223 

2.  Value;  Estimate  of. 
a.  In  General. 

Allowing  for  Loss  of  Profits,  see  infra,  616- 

618. 
As  to  Abutting  Owners,  see  infra.  III.  1,  4, 

a. 
Evidence   as  to  Value,  see  Evidence,   1812- 

1816,  1829,  1830,  1841-1848. 
Striking  out  Evidence  as  to,  see  Trial,  31. 
See  also  supra,  427,  428. 

463.  In  awarding  damage  to  one,  a  por- 
tion of  whose  land  is  sought  to  be  con- 
demned for  public  use,  for  injury  to  his  re- 
maining land,  injury  to  tracts  not  connected 
with,  and  held  under  different  titles  from, 
although  adjoining,  that  from  which  the 
parcel  is  taken,  cannot  be  considered. 
Sharpe  v.  United  States.  50  C.  C.  A.  597, 
112  Fed.  893,  57:932 

464.  The  necessities  of  the  public  or  of 
the  party  seeking  to  condemn  land  cannot 
be  taken  into  consideration  in  fixing  its 
value.  San  Diego  Land  &  T.  Co.  v.  Neale, 
88  Cal.  50,  25   Pac.  977,  11:604 

485.  The  cost  of  repairs  upon  a  toll  bridge 
which  has  been  taken  by  a  county  cannot  be 
considered  in  determining  the  compensation 
which  must  be  paid  to  the  owners  because 
of  such  taking.  Mifflin  Bridge  Co.  v. 
Juniata  County,  144  Pa.  365,  22  Atl.  896, 

13:  431 

466.  There  is  no  distinction  between  land 
near  to  and  that  remote  from  a  reservoir 
site,  BO  far  as  concerns  the  application  to 
it  of  the  rule  that  the  actual  market  value 
must  determine  the  compensation  for  it  in 
condemnation  proceedings.  San  Diego  Land 
&  T.  Co.  V.  Neale,  88  Cal.  50,  25  Pac.  977, 

11:604 

467.  Where  the  location  of  a  railroad 
across  property  leased  as  a  coal  yard  makes 
necessary  new  appliances  for  the  continua- 
tion of  the  coal  business,  and  increases  the 
cost  of  raising  and  storing  the  coal,  as  well 
as  the  breakage  and  waste  in  handling  it, 
the  additional  expense  and  loss,  together 
with  the  cost  of  the  new  appliances,  may 
properly  be  received  in  evidence  in  a 
proceeding  by  the  lessee  to  recover  dam- 
ages for  such  location,  not  as  specific  items 
of  claim,  but  as  affecting  the  market  value 
of  the  leasehold.  Schuylkill  River  E.  S.  R. 
Co.  V.  Kersev,  133  Pa.  234,  19  Atl.  553, 

7:409 
Estimated  as  of  what  time. 
See  also  infra,  505. 

468.  The  valuation  of  property  injured 
in  the  exercise  of  eminent  domain  must  be 
made  immediately  before  and  immediately 
after  the  damage  is  inflicted,  and  the 
measure  of  damages  recoverable  is  the  dif- 
ference between  those  valuations,  unaffect- 


DAMAGES.  111.  1,  2 


965 


ed  by  any  subsequent  change  in  the  circum- 
stances or  condition  of  the  property.  Phila- 
delphia Ball  Club  V.  Phildelphia."  192  Pa. 
K32,  44   Atl.   265,  46:  724 

469.  A  statute  requiring  the  value  of 
property  condemned  to  be  estimated  as  at 
the  time  of  appraisement  must  be  enforced 
when  invoked  by  the  owner  of  the  property. 
Bell  V.  Lamborn,  18  Colo.  346,  32  Pac.  989, 

20:  241 
Right  of  way  over  oil-bearing  land. 

470.  The  damages  for  condemning  a  rail- 
road right  of  way  across  a  strip  of  oil- 
bearing  land  should  not  represent  the  fee 
value,  but  only  the  value  of  the  easement, 
since  the  conditions  are  such  that  the  oil 
can  be  taken  from  under  the  right  of  way 
by  sinking  wells  on  the  portion  of  the  strip 
which  remains  in  possession  of  the  original 
owner,  so  that  there  is  a  substantial  differ- 
ence between  the  value  of  the  easement  and 
that  of  the  fee.  Southern  P.  R.  Co.  v.  San 
Francisco  Sav  Union,  148  Cal.  290,  79  Pac. 
961,  70:  221 
Injury  to  business. 

See  also  supra,  453. 

471.  Diminished  value  of  a  stock  of  mer- 
chandise because  of  removal  rendered  neces- 
sary by  the  taking  of  real  estate  for  rail- 
road purposes  is  not  an  element  of  damages 
to  be  paid  by  the  railroad  company  under 
the  Constitution  of  1874.  Becker  v.  Phila- 
delphia &  R.  T.  R.  Co.  177  Pa.  2.52.  .35  Atl. 
617,  .35:  583 
Cutting  off  terminal  facilities. 

472.  Injury  to  a  part  of  a  tract  of  land 
which  is  cut  off  by  a  railroad  from  connec- 
tion by  private  switches  with  a  terminal 
railway  should  be  considered  in  estimating 
damages  on  condemnation,  as  a  crossing  for 
a  private  switch  cannot  be  condemned.  St. 
Ixjuis  K.  &  N.  W.  R.  Co.  v.  Clark,  121  Mo. 
169,  25  S.  W.   192.  906,  26:  751 

473.  The  fact  that  a  railroad  is  not 
obliged  to  continue  a  present  custom  to 
make  no  charge  for  hauling  over  switches 
should  be  considered  in  estimating  damages 
in  a  condemnation  case.  Id. 
Improvements. 

474.  Improvements  made  for  public  use 
by  a  railroad  company  lawfully  in  posses- 
sion, with  the  right  to  condemn  for  such  use 
at  any  time,  do  not  belong  to  the  owner  of 
the  land,  and  the  value  thereof  will  not  be 
allowed  him  as  damages  on  condemnation. 
The  maxim  Quicquid  plantatur  solo,  solo 
(•edit,  does  not  apply  in  such  a  case.  St. 
lohnsbury  &  L.  C.  R.  Co.  v.  Willard.  61  Vt. 
1.34,  17  Atl.  38,  '2:  528 

475.  'NATiere  a  railroad  company  having  the 
power  of  eminent  domain  has  entered  upon 
land  without  the  consent  of  the  landowner 
and  witlnmt  complying  with  the  law  regu- 
lating the  exercise  of  such  power,  and  has 
constructed  a  railroad  track  thereon,  ihc 
value  of  the  improvements  thus  put  by  the 
company  on  the  land  cannot  be  included  in 
estimating  the  damages  sustained  by  the 
landowner,  in  proceedings  subsequently 
instituted  under  such  law  by  the  company, 
nv  its  legal  successor  having  similar  power 
to  condemn  the  land  or  an  easement  therein 


to  the  company's  use;  and  this,  whether  the 
company  has  been  ousted  from  the  former 
possession  or  not.  Jacksonville,  T.  &  K.  W. 
R.  Co.  V.  Adams,  28  Fla.  631,  10  So.  465. 

14:  533 

476.  On  condemnation  of  a  railroad  right 
of  way  after  the  railroad  has  been  built  on 
a  strip  of  mortgaged  land  conveyed  for  that 
purpose  by  the  mortgagor,  and  the  entire 
premises,  including  the  railroad,  thereafter 
sold  on  foreclosure,  the  purchaser  is  en- 
titled only  to  the  value  of  the  land  occupied 
by  the  railroad,  irrespective  of  the  improve- 
ments. St.  Louis,  K.  &  S.  W.  R.  Co.  v. 
ISTyce,  61  Kan.  394,  59  Pac.  1040,        48:  241 

477.  The  recovery  of  damages  for  a 
change  in  the  construction  of  a  railroad  can- 
not include  a  loss  resulting  from  removal  of 
an  improvement  put  upon  the  land  by  the 
corporation  or  that  from  which  it  purchased. 
Wabash,  St.  L.  &  P.  R.  Co.  v.  McDougall. 
126  111.  Ill,  18  X.  E.  291,  1:  207 

478.  The  value  of  a  public  sehoolhouse 
built  on  land  of  an  unknown  owner  in  the 
expectation  that  he  will  permit  such  use, 
and  with  the  intention,  in  case  he  will  not, 
to  acquire  it  by  eminent  domain,  is  not  to 
be  included  in  his  compensation  if  it  be- 
comes necessary  to  condemn  the  land.  Chase 
V.  Jemmett,  8  Utah,  231,  30  Pac.  757, 

16:  805 

b.  Value  for  Special  Use. 

Allowing  for  Loss  of  Profits,  see  infra,  617. 
Evidence  as  to,  see  Evidence,  1849,  1883. 
Instruction  as  to,  see  Trial,  763. 
For  Editorial  Notes,  see  infra,  V.  §  17. 

479.  The  value  of  land  to  be  condemned 
for  any  special  purpose,  including  that  for 
which  it  is  to  be  taken,  may  be  taken  into 
account  as  one  of  the  elements  tending  to 
show  its  market  value;  but  the  market 
value,  and  not  the  value  for  such  special 
purpose,  or  the  value  to  the  party  seeking 
to  condemn  it,  is  the  measure  of  damages. 
San  Diego  Land  &  T.  Co.  v.  Neale,  88  Cal. 
50,   25  Pac.   977.  11:  604 

Allowav  V.  Nashville.  88  Tenn.  510.  13 
S.  W.  123,  8:  123 

San  Diego  Land  &  T.  Co.  v.  Neale,  78  Cal. 
63,  20  Pac.  372,  3:  83 

480.  Land  taken  for  part  of  a  reservoir 
site  should  be  considered  with  reference  to 
its  value  for  reservoir  purposes,  in  estimat- 
ing the  owner's  compensation,  although  it 
ha«  no  value  for  reservoir  purposes  except  in 
connection  with  other  land  owned  by  the 
partv  seeking  its  condemnation.  San  Diego 
Land  &  T.  Co.  v.  Xeale.  78  Cal.  63,  20  Pac. 
372,  3:  83 

481.  Although  property  may  have  no 
market  value  in  the  strict  sense  of  the  term, 
there  being  no  actual  demand  or  current 
rate  of  price,  either  because  there  have  been 
no  sales  of  similar  property,  or  because  the 
particular  piece  is  the  only  thing  of  its  kind 
in  the  neiirhborhood,  when  it  is  taken  in 
condemnation  proceedings  it  is  proper  to 
consider  the  purposes  for  which  it  is  suit- 
able,   as    a    means    of    asctjrtaining    Avhat 


9()(; 


DAMAGES,  III.  1,  2. 


reasonable  purchasers  would  in  all  prob- 
ability be  willing  to  give  for  it;  and  this, 
in  a  general  sense,  may  be  said  to  be  its 
market  value;  and  the  fact  that  it  has  not 
been  previously  used  for  the  purposes  in 
([uestion  is  irrelevant.  Id. 

482.  Calculation  of  the  actual  value  of 
land  condemned,  by  considering  the  neces- 
sary cost  of  putting  it  in  condition  for 
certain  purposes,  and  the  probable  income 
and  profit  which  would  result  from  its  use, 
is  not  a  proper  method  of  determining  its 
value.  San  Diego  Land  &  T.  Co.  v.  Neale, 
S8  Cal.  50,  25  Pac.  977,  11:  604 

483.  The  possibility  of  using  the  land  de- 
stroyed by  a  railroad  company  for  the  only 
use  which  the  owner  intends  to  make  of 
it,  for  factory  sites,  when  the  land  is  not 
at  present  desired  for  that  purpose,  is  too 
remote  to  be  considered  in  reduction  of  the 
damages  to  be  awarded  for  taking  a  right 
of  way  through  the  property.  Suffolk  &  C. 
R.  Co.  V.  AVest  End  Land  &  L  Co.  137  K  C. 
.J.-^O.  49  S.  E.  350.  68:  333 
Plant  of  water  company. 

Question  for  Jury  as  to,  see  Trial.  231. 

484.  Whether  or  not  the  franchises  of  a 
water  company  are  exclusive,  and  how  far 
it  is  without  competition,  as  well  as  the 
period  for  which  they  are  to  endure,  are  to 
i)e  taken  into  consideration  in  determining 
their  value,  when  sought  to  be  taken  by  the 
right  of  eminent  domain.  Kennebec  Water 
Dist.  V.   Waterville.  97   Me.   185.  54  Atl.  «. 

60:  856 

485.  The  possibility  of  future  develop- 
ment of  the  use  of  the  franchises  of  a 
water  company  should  be  considered  in  de- 
termining the  amount  to  be  allowed  for 
them  when  taken  by  eminent  domain  in 
the  light  of  the  facts  that  further  investi- 
gation may  be  necessary  therefor,  and  that 
at  any  stage  of  the  development  the  owner 
of  the  franchises  will  be  entitled  to  charge 
only  reasonable  rates  under  the  conditions 
then   existing.  Id. 

486.  The  financial  returns  which  a  water 
plant  can  be  made  to  bear  must  be  con- 
sidered in  determining  the  value  of  the 
franchises  of  its  owner  when  taken  by  right 
of  eminent  domain.  Id. 

487.  In  determining  how  much  income  a 
water  plant  can  be  made  to  produce,  for 
the  purpose  of  ascertaining  the  value  of 
the  franchises  of  its  owner  which  are  sought 
to  be  taken  by  right  of  eminent  domain,  it 
must  be  allowed  a  fair  amount,  based  upon 
the  fair  value  of  its  property,  taking  into 
account  the  cost  of  maintenance  or  depre- 
ciation and  current  operating  expenses,  al- 
lowing something  for  the  risk  of  the  origi- 
nal   enterprise,   if   any.   over  and   above   in- 

1  ome  which  it  has  received  at  rates  which 
would  have  l>een  excessive  but  for  such  risk. 
<rt  far  as  siuh  fair  amount  can  be  allowed, 
:ind  T!o  more  should  be  exacted  from  the 
!>til)Iic  thai!  the  service  is  worth.  Id. 

488.  The  <inality  of  water  furnished  and 
of  the  servile-  rendered,  and  the  fitness  of 
tlie  plant,  and  tlie  source  of  the  water  sup- 
ply to  meet  reasonable  rec|uirenients  in  the 
[irc-oTil    .nnd    fiit\iic.  arc  to  ]»•  r-onsirlered  in 


determining  the  value  of  a  water  plant  tak- 
en by  eminent  domain.  Id. 

489.  The  faithfulness,  or  unfaithfulness, 
even  to  the  extent  of  rendering  the  fran 
chises  liable  to  forfeiture,  of  a  water  com- 
pany in  performing  its  duties,  should  not  be 
considered  in  determining  the  value  of  its 
plant  when  taken  by  eminent  domain.      Id. 

490.  That  a  water  company  has  received 
more  than  reasonable  rates  for  services  ren- 
dered should  not  be  considered  in  determin- 
ing the  amount  which  must  be  paid  for 
its  plant  when  taken  by  eminent  domain. 

Id. 

491.  Upon  taking,  by  eminent  domain, 
the  system  supplying  one  municipal  corpo- 
ration from  a  water  company  operating  sev- 
eral plants  in  different  places,  no  increased 
burden  upon,  or  impairment  of  value  of, 
the  remaining  plants  because  of  the  sever- 
ance of  the  property  can  be  considered  as 
an  element  of  damage,  where  the  various 
plants  are  separate  and  distinct,  although 
some  additional  cost  of  management  may  be 
therebv  imposed  upon  the  remaining  ones. 

Id. 

492.  The  cost  of  replacing  a  water  plant 
with  one  substantially  like  it  must  be  con- 
sidered in  determining  its  value  when  ap- 
propriated by  eminent  domain;  but  such 
consideration  must  be  made  in  the  light  of 
the  fact  that  the  plant  is  a  completed  struc- 
ture and  a  going  concern.  Id. 

493.  Property  of  a  water  company  not 
directly  connected  with  the  water  system 
or  plant  which  is  taken  from  it  by  right  of 
eminent  domain  should  be  apraised  at  its 
fair  market  value,  not  at  a  forced  sale,  but 
at  what  it  is  fairly  worth  to  the  seller  un- 
der conditions  permitting  a  prudent  and 
beneficial  sale.  Id. 

494.  In  determining  the  structure  value  of 
a  plant  for  a  municipal  water  supply  to  be 
taken  by  eminent  domain,  the  appraisers 
should  consider  the  present  eflftciency  of 
the  system,  the  length  of  time  necessary  to 
construct  the  same  de  novo,  the  time  and 
cost  needed  after  construtcion  to  develop 
the  new  system  to  the  level  of  the  present 
one  in  respect  to  business  and  income,  and 
the  added  net  incomes  and  profits,  if  any, 
which,  by  its  acquirement  as  a  going  con- 
cern, would  accrue  to  a  pxirchaser  during 
the  time  required  for  the  new  construction 
and  development  of  business  and  income.  Id. 

495.  The  element  of  good  will  should  not 
be  considered  in  estimating  the  value  of  a 
water  plant  to  be  taken  by  eminent  domain 
so  far  as  the  system  is  practically  exclu- 
sive. Id. 

49G.  That  a  statute  provides  for  the  tak- 
ing of  the  property  and  franchises  of  a  wa- 
ter company  by  eminent  domain  in  no  way 
impairs  the  value  for  which  compensation 
must   be   made.  Id. 

197.  The  capitalization  of  the  income  of  a 
water  company,  even  at  reasonable  rates, 
cannot  be  adopted  as  a  test  of  the  present 
value  of  the  plant,  upon  which  to  calculate 
the  amount  to  be  paid  to  it  when  the  plant 
i-     taken     liv     eminent     domain. — especially 


DAMAGES,  III.  J,  3,  4 


967 


where  the  franchises  are  not  exclusive  or 
perpetual.  Id. 

3.  Consequential  Injuries. 

To  Abutting  Owners,  see  infra,  IIL  1,  4. 

In  Case  of  Elevated  Railroads,  see  infra, 
III.  1,  4,  6. 

Elight  to  Compensation  for,  see  Eminent  Do- 
main, III.  e. 

Opinion  as  to  Extent  of  Damage  from  Oper- 
ation of  Railroad,  see  Evidence,  1344. 

Evidence  as  to,  see  Evidence,  1874. 

See  also  supra,  453,  471;  infra,  543. 

For  Editorial  Notes,  see  infra,  V.  §§  17, 
25%. 

498.  A  single  tract  of  land  ustd  for  the 
purposes  of  a  paper  mill  is  not  severed  by 
the  taking  of  a  strip  for  a  railroad  and  con- 
veyance of  an  additional  strip  for  coal  and 
freight  sidings,  so  as  to  prevent  considera- 
tion of  injury  to  the  water  which  supplies 
the  mill  on  one  side  of  the  road,  when  as- 
sessing consequential  damages  to  the  mill 
property  on  the  other  side  of  the  road. 
Rudolph  V.  Pennsylvania  S.  V.  R.  Co.  -186 
Pa.   541,   40   Atl.    1083,  47:  782 

Danger;    possible  injuries. 
For  Editorial  Notes,  see  infra,  V.  §  17. 

490.  Damages  in  an  eminent  domain  pro- 
ceeding to  obtain  land  for  railroad  pur- 
poses cannot  be  enhanced  by  reason  of  the 
danger  of  fire  because  of  proximity  of  the 
proposed  road  to  a  building  used  for  stor- 
ing highly  inflammable  material,  but  must 
be  limited  to  the  cost  of  removing  the  build- 
ing to  a  safe  place.  Hamilton  v.  Pittsburg, 
B.  &  L.  E.  R.  Co.  190  Pa.  51,  42  Atl.  369, 

51:  319 

500.  When  a  part  of  a  farm  or  tract  of 
land  is  appropriated  for  the  right  of  way  of 
a  railroad,  danger  from  fire  to  buildings, 
fences,  timber,  or  crops  upon  the  remainder, 
in  so  far  as  it  depreciates  the  value  of  the 
property,  may  be  properly  considered  in  giv- 
ing compensation  to  the  landowner.  Leroy 
ft  W.  R.  Co.  v.  Rosij,  40  Kan.  598,  20  J^ac. 
197,  2:217 

501.  Where  a  railroad  is  laid  through  a 
farm  or  tract  of  land  used  for  stock  pur- 
poses, or  adapted  to  stock  purposes,  the  ac- 
cidental danger  to  which  stock  thereon  will 
be  exposed  may  be  considered  in  giving  com- 
pensation to  the  landowner  for  the  right  of 
way  appropriated  for  the  railroad,  so  far  as 
the  same  affects  the  value  or  depreciation  of 
the  land,  or  tract  of  land,  but  not  any  dan- 
s?er  or  probable  injury  resulting  from  the 
fault  or  negligence  of  the  railroad  company 
in  operating  or  failing  to  fence  itP  road.  Id. 

502.  The  possibility  of  unskilful  and  im- 
proper construction  of  a  reservoir  which  is 
not  yet  completed  cannot  be  considered  in 
estimating  damages  to  adjacent  property 
in  proceedings  by  eminent  domain.  It  must 
be  assumed  that  the  work  will  be  done  in  a 
skilful  and  proper  maimer.  Alloway  v. 
Nashville,  88  Tenn.  510.  13  S.  W.  123.  8:  123 
Pollution  of  water. 

For  Editorial  Notes,  see  infra.  V.  §  17. 
.i03.  The    pollution     of   the     water   of    a 


stream  so  as  to  render  it  unfit  for  use  in  a 
paper  mill,  resulting  from  the  operation  of 
a  railroad  through  the  premises,  is  to  be 
considered  in  determining  the  amount  of 
damages  caused  by  the  construction  and 
operation  of  the  railroad.  Rudolph  v.  Penn 
sylvania  S.  V.  R.  Co.  186  Pa.  541,  40  Atl. 
1083,  47:782 

4.  As  to  Abutting  Owners. 
a.  Railroads  in  Street. 

Time  for  Which  Recoverable,  see  infra,  648. 

Right  to  Compensation,  see  Eminent  Do- 
main, III.  e,  2. 

As  Additional  Burden  for  which  Compensa- 
tion may  be  Had,  see  Eminent  Domain, 
IV.  d,  2. 

See  also  infra,  549. 

For  Editorial  Notes,  see  infra,  V.  §  17. 

504.  The  value  of  the  land  taken,  together 
with  the  damage  to  the  abutting  lots,  and 
not  the  damage  for  the  additional  burden, 
is  to  be  awarded  as  compensation  in  case 
a  railroad  company  condemns  a  street  for 
a  right  of  way.  Sufl"olk  &  C.  R.  Co.  v.  West 
End  Land  &  I.  Co.  137  N.  C.  330,  49  S.  E. 
350,  68:  333 

505.  Comparison  of  the  value  of  the  prop 
orty  before  and  after  the  road  was  built 
is  not  the  proper  method  of  fixing  the 
amount  to  be  awarded  to  an  abutting  land- 
owner in  case  a  bridge  is  erected  to  carry 
railroad  tracks  diagonally  across  a  street. 
Jones  V.  Erie  &  W.  V.  R.  Co.  151  Pa.  30,  25 
Atl.  134,  17:  758 

506.  In  estimating  damages  to  a  lot, 
caused  by  the  construction  and  maintenance 
of  a  railway  in  the  street  in  front  of  the 
premises,  but  beyond  the  center  line  there 
of,  only  such  injuries  to  the  property  should 
be  considered  as  proximately  result  from  in 
terference  with  the  appurtenant  easement 
for  purposes  of  access,  light,  and  air,  which 
the  owner  has  in  that  part  of  the  street. 
Lamm  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  45 
Minn.    71,   47    N.   W.   455,  10:  268 

507.  Where  a  railwaj'  company  occupies  a 
street  for  purposes  not  authorized  by  its 
contract  with  the  city,  the  damages  recov- 
erable by  an  abutting  owner  are  limited  to 
those  sustained  before  the  bringing  of  the 
suit;  but  where  the  abuses  have  been  only 
occasional,  and  no  special  or  particular  dam 
age  is  shown,  plaintiflf  is  entitled  to  nomi 
nal  damages  only.  Iron  Moimtain  R.  C<> 
V.  Bingham,  87  Tenn.   522.   11   S.   W.  705. 

4:622 
.508.  The  erection  of  abutments  on  a  rail- 
road company's  own  property,  to  carry  its 
tracks  diagonally  across  the  intersection  of 
two  streets  at  an  elevation  of  23  feet,  is 
not  a  proper  element  of  damages  to  be  al 
lowed  to  the  owner  of  a  comer  lot  so  situ 
ated  that  a  building  thereon  must  necessa 
rily  face  them.    Jones  v.  Erie  &  W.  V.  R. 
Co.   151   Pa.  30,  25  Atl.   134,  17:758 

509.  In  determining  the  damages  to  he 
awarded  an  abutting  owner  because  of  the 
temporary  occupation  of  a  street  with  rail- 


968 


DAMAGES,  III.  1.  5. 


road  tracks,  the  fact  may  be  considered 
that,  by  reason  of  the  elevation  of  the 
tracks  above  the  grade  of  the  street,  pud- 
dles of  water  from  rain  and  melting  snow 
were  formed  on  the  sidewalk  to  the  incon- 
venience of  such  owner.  McKeon  v.  New 
York.  N.  H.  &  H.  R.  C!o.  75  Conn.  343,  53 
Atl.    656,  61:  730 

Exclusion  of  light  and  air. 
See  also  infra,  548. 

510.  The  exclusion  of  light  and  air  from 
abutting  property,  and  its  diminution  in 
value  because  of  the  erection  of  a  bridge 
to  carry  railroad  tracks  diagonally  across 
a  street,  are  proper  elements  to  be  con- 
sidered in  assessing  the  damages  to  be  paid 
to  its  owner.  .Jones  v.  Erie  &  W.  V.  R.  Co. 
151  Pa.  .30,  25  Atl.  134,  17:  758 
Cutting  off  access. 

Right  to  Compensation  for  Obstructing,  see 
Eminent  Domain,  327-338. 

511.  Substantial  damages  may  be  award- 
ed an  abutting  owner  whose  property  is  cut 
of.  from  access  to  the  street  by  the  use 
of  it  as  a  roadbed  by  a  railroad  company, 
ponding  the  elevation  of  its  tracks,  which 
may  include  actual  loss  of  rent,  depreciation 
of  rental  value,  permanent  injury  to  build- 
ings from  the  jar  of  passing  trains,  injury 
to  the  sidewalk,  and  the  cost  of  keeping 
horses  employed  in  his  business,  of  which 
no  use  can  be  made  while  the  tracks  are  in 
the  street.  McKeon  v.  New  York.  N.  H. 
&  TI.  R.  Co.   75  Conn.  343.  53  Atl.  656. 

,  61:730 

5.  Elevated  Railroads. 

Time  for  Which  Recoverable,  see  infra,  648. 

Right  to  Compensation,  see  Eminent  Do- 
main. 340. 

As  .\dditional  Servitude  for  Which  Com- 
pensation maj'  be  Had,  see  Eminent  Do- 
main, 454. 

(Opinion  Evidence  as  to  Amount  of  Dam- 
ages, see  Evidence,  1349,  1350. 

See  also  supra,  .508,  510,  511;    infra,  .548. 

512.  Damiigos  to  lots  by  oonstructioii  of 
an  elevated  railroad  in  front  of  them,  with- 
out compensation  to  the  owner,  where  he 
subsequently  sues  for  the  damages  sus- 
tained, are  limited  to  diminished  or  usable 
value  during  the  time  prior  to  the  suit, 
and  mu^t  be  based  on  the  actual  condition 
of  the  lots  just  as  they  are.  What  the  ef- 
fect on  their  value  would  have  been  if 
buildings  had  been  erected  thereon,  which 
in  fact  were  not,  is  immaterial.  Tallman  v. 
Metropolitan  Elev.  R.  Co.  121  X.  Y.  119. 
23  X.  K.  1134,  8:  173 

513.  Damages  for  the  permanent  diminu- 
tion in  the  value  of  lots,  caused  by  an  ele- 
vated railway  in  front  of  them,  cannot  be 
recovered  in  an  action  for  damages  after 
construction  of  the  road,  but  the  damages 
itnist  be  limited  to  the  time  preceding  the 
action.  Id. 

514.  The  use  of  a  house  as  a  place  of 
prostitution  does  not  affect  the  liability  for 
depreciation  of  its  value  from  the  con- 
strnction  and  iM>cratio(i  of  an  elevated  rail- 


road in  the  street  in  front  of  it.  Lawrance 
V.  Metropolitan  Elev.  R.  Co.  126  N.  Y.  483, 
27  X.   E.   765,  13:  102 

515.  The  damages  to  abutting  property 
owners  by  reason  of  the  destruction  of  their 
easements  for  ingress  and  egress  to  and  from 
a  public  street,  and  the  free  circulation  of 
light  and  air  therefrom  to  their  property, 
by  the  construction  of  an  elevated  railroad 
in  such  street,  are  entirely  consequential; 
and  in  determining  the  amount  to  be  award- 
ed therefor  the  jury  may  consider  the  bene- 
fits as  well  as  the  injuries  resulting  from 
such  construction.  Xewman  v.  Metropoli- 
tan Elev.  R.  Co.  118  X.  Y.  618,  23  N.  E. 
901,  7:289 
Loss  of  privacy. 

516.  The  loss  of  privacy  of  premises  used 
as  a  dwelling,  caused  by  the  construction 
in  a  street  in  front  of  them  of  an  elevated 
railroad  and  station,  whereby  employees  and 
passengers  can  look  into  the  windows,  is 
an  element  of  damages  so  far  as  it  depre- 
ciates the  rental  value  of  the  premises. 
Moore  v.  New  York  Elev.  R.  Co.  130  N.  Y. 
523,  29  X.  E.  997,  14:  731 
In  Heu  of  injunction. 

517.  The  damages  for  continuing  tres- 
passes bj'  an  elevated  railroad  on  easements 
of  light,  air,  and  access,  which  must  be  paid 
to  prevent  an  injunction  in  favor  of  a  pur- 
chaser of  the  premises  after  the  trespasses 
began,  is  the  difference  between  the  value 
of  the  property  with  and  without  the  rail- 
road; and  the  price  paid  by  the  purchaser 
is  immaterial.  Pappenheim  v.  Metropolitan 
Elev.  R.  Co.   128  N.  Y.  436,  28  N.  E.  518. 

13:401 

518.  The  alternative  damages  in  lieu  of 
an  injunction  in  favor  of  an  abutting  own- 
er against  the  construction  and  maintenance 
of  a  elevated  railroad  should  be  the  same 
as  would  be  given  in  condemnation  proceed- 
ings. Sperb  v.  Metropolitan  Elev.  R.  Co. 
137  X.  Y.   155,  32  X.  E.  1050,  20:  752 

519.  The  future  discharge  of  smoke,  cin- 
ders, and  noxious  gases  are  items  of  dam- 
ages to  the  easements  of  abutting  owners, 
to  bo  given  in  lieu  of  an  injunction  against 
an  elevated  railroad  company.  Id. 

520.  The  damages  to  the  easements  of 
abutting  owners  caused  by  the  future  run- 
ning of  trains  should  be  included  in  the  al- 
ternative damages  to  be  given  in  lieu  of  an 
injunction  in  favor  of  an  abutting  owner 
against  an  elevated  railroad.  .    Id. 

5.  In   Highway   Cases. 

Right    to   Compensation,   see    Eminent    Do- 
main, TIL  e,  4. 

521.  The  ownership  of  the  fee  of  a  street 
subject  to  the  public  use  is  a  property  right 
for  which  the  owner  is  entitled  to  substan- 
tial damages,  where  it  is  taken  by  condem- 
nation proceedings.  Re  Buffalo,  131  N.  Y. 
293,  30  X.  E.  233,  15:  413 
Establishment  of  street. 

See  also  infra,  536,  537. 

522.  Only  nominal  damages  can  be  given 
on  the  condemnation    of    an    easement    for 


DAMAGES,  111.  1,  6. 


a  village  street,  where  the  strip  taken  is 
already  subject  to  a  private  easement  of 
grantees  who  are  entitled  to  have  it  kept 
open  for  public  use,  by  virtue  of  deeds  of 
lands  abutting  thereon  which  refer  to  it  as 
a  street.  Re  Glean.  135  N.  Y.  341.  32  X.  E. 
9,  17:640 

523.  The  additional  expense  to  which 
owners  of  land  taken  for  a  street  are  en- 
titled, besides  the  value  of  the  land,  is  such 
as  naturally  follows  the  opening  of  a  street, 
— such  as  a  removal  of  a  fence  already  built, 
or  other  like  matters.  Future  and  contin- 
gent expenses — like  assessments,  etc.,  which 
will  themselves  give  a  benefit  for  the  cost — ■ 
cannot  be  considered.  Detroit  v.  Beecher, 
75  Mich.  454,  42  N.  W.  986,     -  4:  813 

524.  One  whose  land  is  takeif  for  a  city 
street  is  not  entitled  to  have  the  cost  of 
grading  and  paving  the  street,  which  will 
or  may  thereafter  be  assessed  against  him, 
considered  as  an  element  of  damages.        Id. 

52.1.  One  whose  land  is  taken  for  the 
opening  of  a  city  street  is  not  entitled  to 
have  the  expense  of  cleaning  snow  from 
sidewalks  therein  considered  as  an  element 
of  damages.  Id. 

Laying  street  out  across  railroad  track. 

526.  All  the  damages  sustained,  and  not 
merely  the  value  of  the  real  estate  actual- 
ly taken,  can  be  recovered  by  a  railroad 
company  under  Ind.  Rev.  Stat.  1894,  §§ 
3629-57,  when  a  street  is  laid  out  across  its 
tracks.  Terre  Haute  v.  Evansville  &  T.  H. 
R.  Co.  149  Ind.  174,  46  N'.  E.  77.  37:  189 
Widening  of  street. 

527.  The  cost  of  adjusting  a  bridge  erect- 
ed by  a  street  railway  company  to  carry 
its  trncks  over  a  street  crossed  by  its 
right  of  way,  to  the  new  width  of  the  cross 
street  after  it  has  been  widened  by  the 
city  under  the  power  of  eminent  domain,  is 
a  proper  element  of  damage  to  be  allowed 
the  company  in  proceedings  to  condemn  a 
portion  of  its  property  for  the  purposes  of 
such  widening,  notwithstanding  the  com- 
pany's enabling  ordinance  provides  that  the 
company  must  erect  and  maintain  a  suit- 
able bridge  over  the  cross  street,  so  as  to 
allow  it  to  be  used  to  its  full  width.  Kan- 
sas Citv  V.  Kansas  Citv  Belt  R.  Co.  102  Mo. 
633.  14  S.  \V.  803,  *  10:  851 
Establishing  or  changing  street  grade. 
Evidence  as  to  Amount  of  Damage,  see  Evi- 
dence, 1342,  1343,  1881. 

See  also  supra,  524;    infra,  550. 

528.  Damage  for  change  of  grade  of  a 
street  includes  the  injury  resulting  from  the 
raising  of  a  portion  of  the  street  by  a  rail- 
road company  in  obedience  to  the  ordinance 
fixing  the  grade.  Hickman  v.  Kansas  City, 
120  Mo.  110,  25  S.  W.  225.  23:  658 

.529.  Damages  occasioned  by  establishing 
a  grade  in  a  street,  on  first  raising  the  grade 
above  the  natural  surface,  as  well  as  dam- 
ago  by  raising  or  lowering  a  grade  pre- 
viously established,  must  bo  compensated 
under  a  constitutional  provision  for  com- 
pensation in  case  of  property  taken  or  dam- 
aged  for  public  use.  Id. 

530.  The  measure  of  damages  for  injury 
♦.o  property  from   change  of  a   street -grade 


line  is  the  diminution  of  the  market  vaiue 
caused  by  the  change.  Blair  v.  Charleston, 
43  W.  Va.  62,  26  S.   E.  341,  35:  852 

531.  Damages  to  a  building,  caused  by 
the  sliding  of  the  ground  under  it  on  re- 
moval of  the  lateral  support  by  grading  a 
street,  may  be  included  in  the  damages  re- 
coverable for  wrongfully  removing  such  sup- 
port, if  the  sliding  was  not  caused  by  the 
weight  of  the  building.  Parke  v.  Seattle.  5 
Wash.    1,   31    Pac.   310,  20:  68 

6.  Advantages;    Offsets. 

a.  In  (ieneral. 

For  Editorial  Notes,  see  infra,  V.  §  17. 

532.  The  deduction  of  benefits  from  dam- 
ages in  case  of  the  exercise  of  the  power  of 
eminent  domain  by  an  individual  is  not  im- 
pliedly authorized  by  a  constitutional  pro- 
vision expresslj'  forbidding  such  deduction 
in  case  of  an  attempt  to  exercise  the  power 
by  a  private  corporation.  Beveridge  v.  Lew- 
is, 137  Cal.  619,  70  Pac.  1040,  59:  581 

533.  Just  compensation  for  taking  part  of 
an  entire  tract  of  land  for  public  use  can- 
not be  ascertained  without  considering  the 
damage  done  to  the  residue  by  the  separa- 
tion and  benefit  immediately  accruing  there- 
to. State,  Mangles.  Prosecutor,  v.  Hudson 
County  Freeholders'  (N.  J.  Sup.)  55  N.  J. 
L.   88,   25  Atl.   322,  17:  785 

r>M.  "General  benefits"  cannot  be  consid- 
ered in  determining  just  compensation  for 
taking  a  portion  of  a  tract  of  land  for  pub 
lie  use,  because  they  are  to  arise,  if  at  all, 
in  the  indefinite  future,  and  are  so  uncertain 
as  to  be  incapable  of  present  estimation.  Id. 

535.  Property  is  not  damaged  so  as  to  re- 
quire compensation  in  an  eminent  domain 
case,  if  its  price  or  value  has  not  been  de- 
preciated, although  the  statute  denies  the 
right  to  set  off  any  benefits  or  advantages 
against  the  compensation  for  damages. 
Metropolitan  West  Side  Elev.  R.  Co.  v. 
Stickney,  150  III.  362,  .37  X.  E.  1098.  26:  773 
Establishment  of  highway. 

536.  "The  benefits  that  will  result  from 
such  road,"  within  the  meaning  of  a  statu- 
tory, provision  as  to  considering  the  benefits 
in  estimating  damages  for  a  portion  of  land 
taken  for  a  road,  mean  the  benefits  result- 
ing when  the  road  is  laid  out,  and  not  after 
it  is  improved.  State,  Mangles,  Prosecutor. 
V.  Hudson  County  Freeholders  (N.  J.  Sup. > 
55  X.  J.  L.   88,  25  Atl.  322,  17:  78.') 

5.37.  An  assessment  upon  land  of  the  full 
amount  of  compensation  paid  for  other  land 
of  the  owner  taken  for  the  purpose  of  a 
public  highway,  together  with  all  the  cost 
and  expense  of  the  condemnation  proceed- 
ings, violates  Ohio  Const,  art.  1,  §  19,  pro- 
viding that  private  property  shall  ever  be 
held  inviolate,  and.  when  taken  for  public 
use.  a  com])ensation  therefor  shall  first  be 
made  in  money,  without  deduction  for  bene- 
fits, which  is  a  limitation  upon  the  power 
of  assessment  conferred  by  art.  13,  §  6. 
Cincinnati,  L.  &.  X*.  R.  C-o.  v.  Cincinnati.  62 
Ohio  St.  465.  .57  X.  E.  220.  49:  .">«« 


970 


DAMAGES,  III.  m. 


Taking  land  for  reservoir. 

.)38.  The  increase  in  value  in  land  to  be 
taken  in  condemnation  proceedings  for  res- 
ervoir purposes,  by  reason  of  the  fact  that 
a  reservoir  has  been  already  partially  con- 
structed on  adjacent  land  belonging  to  the 
party  seeking  the  condemnation,  cannot  be 
taken  into  account  in  fixing  the  owner's 
compensation.  San  Diego  Land  &  T.  Co.  v. 
Neale,  78  Cal.  63,  20  Pac.  372,  3:  83 

539.  The  enhancement  in  value  of  lands  in 
the  neighborhood  by  reason  of  having  ir- 
rigation facilities  afforded  by  the  construc- 
tion of  a  reservoir  cannot  be  considered  in 
determining  the  amoimt  of  compensauiun  to 
an  owner  for  land  taken  for  reservoir  pur- 
poses. Id. 
Removal  of  lateral  support. 
.  540.  The  benefit  resulting  from  the  im- 
provement may  be  considered  in  assessing 
the  damages  resulting  from  the  removal  of 
lateral  support  from  an  abutting  lot  in 
cutting  down  and  improving  a  street,  un- 
der z  constitutional  provision  that  private 
property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation. 
Schroeder  v.  .Joliet,  189  III.  48,  59  N.  E.  550, 

52:  634 
Construction  of  railroad. 
Evidence   as    to    Amount    of   Damages,   see 

Evidence,   1875,   1876. 
See  also  supra,  515. 

541.  General  benefit  to  land  not  taken 
cannot  ho  set  off  against  damages  to  it  by 
the  taking  of  a  railway  right  of  way  un- 
der a  constitutional  provision  requiring  com- 
pensation to  be  made  in  money  and  in  ad- 
vance. Beveridge  v.  Lewis.  137  Cal.  619, 
70  Pac.  1040,  59:  581 

.)42.  Under  the  provisions  of  Kan.  Const, 
art.  12,  §  4,  a  railroad  company  must  make 
full  compensation  for  the  right  of  way  ap- 
propriated to  the  corporation,  irrespective 
of  any  benefits,  or  supposed  benefits,  from 
the  construction  of  the  road,  or  any  im- 
provement thereby.  Leroy  &  W.  R.  Co.  v. 
Ros9.   40   Kan.   598,   20   Pae.    197,         2:  217 

543.  The  benefits  which  will  accrue  to 
property  by  reason  of  the  construction  of  a 
railroad  must  necessarily  be  considered  ia 
determining  the  amount  of  the  consequen- 
tial damages  to  be  allowed  to  its  owner  on 
account  of  such  construction,  and  their  con- 
sideration for  such  purpose  is  not  prohibited 
by  the  statute  which  forbids  commission- 
ors,  in  determining  the  compensation  to  be 
made  to  owners  of  property  acquired  for 
the  construction  of  railroads,  to  make  any 
allowance  or  dedurtion  on  account  of  any 
real  or  supposed  bonofits  whidi  the  party 
in  interest  may  derive  from  the  construc- 
tion of  the  proposed  road.  Newman  v. 
VTctropolitan  Elev.  R.  Co.  118  N.  V.  (il8.  23 
N'.    E.    901,  7:  289 

">44.  A  railroad  coniiianv  in  condemning 
a  right  of  way  may  stipulate  to  provide  for 
Ihe  owner  certain  crossings,  and  have  the 
damages  assessed  with  reference  to  the  con- 
dition of  tlie  property  with  such  crossings, 
altliough  the  statute  does  not  in  terms  pro- 
>i<li>   11in(    the  company  may   reserve  to  the 


landowner  such  an  easement.  St.  Louis,  K. 
&  N.  W.  R.  Co.  V.  Clark,  121  Mo.  169,  25  S. 
W.  192,  906,  26:  751 

b.  Special  Benefits. 
See  also  supra,  444. 

545.  The  fact  that  other  property  in  the 
vicinity  is  also  increased  in  value  from  the 
same  cause  will  not  justify  excluding  special 
benefits  from  consideration  in  considering 
the  question  of  damages  in  an  eminent  do- 
main case.  Metropolitan  West  Side  Elev.  R. 
Co.  V.  Stiekney,  150  111.  362,  37  N.  E.  1098, 

26:  773 

546.  Property  enhanced  in  value  by  a  pub- 
lic improvement  receives  special  benefits 
which  must  be  set  off  against  damages,  ir- 
respective of  the  benefit  that  may  be  af- 
forded by  the  improvement  on  other  proper- 
ty. Blair  v.  Charleston,  43  W.  Va.  62,  26  S. 
E.  341,  35:  852 

547.  The  rule  that  benefits  deducted  in 
measuring  damages  in  a  condemnation  case 
must  be  special  and  peculiar  and  cannot  in- 
clude general  benefits  shared  in  common 
with  other  property  in  the  neighborhood,  in- 
stead of  taking  the  difference  between  the 
value  of  the  property  before  and  after  as 
the  measure  of  damages, — applies  as  well 
to  a  case  of  damaging  as  to  one  of  taking 
property.  Hickman  v.  Kansas  City,  120  Mo. 
110,  25  S.  W.  225,  23:  658 
Construction  of  elevated  railroad. 

•548.  In  an  action  by  a  lessee  of  property 
abutting  upon  a  street  through  which  an 
elevated  railroad  is  constructed,  to  recover 
damages  for  the  permanent  impairment  of 
his  easement  in  the  street  for  light,  air,  and 
access,  the  general  appreciation  of  the  value 
of  property  consequent  upon  such  impK)ve- 
ment  cannot  be  considered,  as  it  belongs  to 
the  property  owner,  but  special  and  peculiar 
advantages  which  tend  to  increase  the  rental 
value  of  the  property  are  elements  which 
the  jury  must  consider  in  determining  the 
amount  of  their  award.  Newman  v.  Metro- 
politan Elev.  R.  Co.  118  N.  Y.  618,  23  N.  E. 
901,  7: 289 

Construction  of  viaduct  in  street. 

549.  In  estimating  the  benefits  which  may 
be  set  off  against  a  claim  by  the  owner  of 
lots  abutting  on  a  highway  for  damages  re- 
sulting from  the  construction  of  a  viaduct 
in  the  street,  only  those  can  be  considerea 
which  particularly  affect  the  lots  damaged, 
and  not  such  as  are  shared  in  common  with 
other  lots  not  damaged.  Spencer  v.  Metro- 
politan Street  R.  Co.  120  Mo.  154,  23  S.  W. 
126.  22:  668 
Change  of  street  grade. 

550.  The  benefits  to  be  set  off  against 
damages  to  property  from  changing  the 
grade  in  a  street  include  all  special  benefits 
enhancing  its  value  but  not  general  bene- 
fits shared  by  the  property  owner  in  common 
with  others  in  the  communitv  at  large. 
Blair  v.  Charleston.  4.*?  W.  Va.  62,  26  S.  E. 
.141,  35:  852 

m.   In  Injunction  Cas&5. 

Right  to  Damages  in  Injunction  Suit,  see  In- 
junction, 488  4n2b.' 


DAMAGES,  III.  n,  o,  1. 


971 


Submission  of  Question  to  Jury  in  Action 

on  Bond,  see  Trial,  72. 
See   also  supra,  249. 
For  Editorial  Notes,  see  intra,  V.  §§  20,  24. 

551.  On  the  partial  dissolution  of  an  in- 
junction, damages  may  be  allowed'  under 
111.  Rev.  Stat.  chap.  69,  §  12,  if  the  nature 
of  the  case  requires  it  and  equity  demands 
it.  Walker  v.  Pritchard,  135  111.  103.  25  M. 
E.  573,  11:577 

552.  The  insolvency  of  the  maker  of  a 
note  pending  an  injunction  against  a  suit 
upon  it  will  not  authorize  the  assessment 
as  damages,  upon  dissolution  of  the  injunc- 
tion, of  the  whole  amount  of  the  claim  upon 
the  note,  since  the  court  of  chancery  must 
allow  the  suit  upon  the  note  to  proceed,  and 
consequently  the  allowance  of  suth  damages 
might  subject  the  maker  to  two  recoveries. 

Id. 
Counsel  fees. 

553.  Attorney's  fees  and  like  expenses  are 
recoverable  on  an  injunction  bond  in  so  far 
as  they  relate  to  services  rendered  in  resist- 
ing the  injunction  or  procuring  its  dissolu- 
tion, although  other  matters  were  involved 
in  the  litigation.  Robertson  v.  Smith.  120 
Ind.  422,  28  N.  E.  857,  15:  273 

554.  Counsel  fees  cannot  be  assessed  as 
damages  on  the  dissolution  of  an  injunction 
against  suits  upon  notes,  where  they  were 
earned  in  taking  testimony  upon  the  ques- 
tion of  the  ownership  of  the  notes,  which 
was  the  principal  question  involved  in  the 
suits  enjoined,  and  the  injunction  was  only 
ancillary  to  the  principal  object  of  tne  suit. 
Walker  v.  Pritchard.  135  111.  103,  25  N.  E. 
573,  11:  577 

555.  An  award  of  solicitor's  fees  as  part 
of  the  damages  on  dissolution  of  an  injunc- 
tion cannot  be  sustained  if  there  is  nothing 
to  show  what  portion  of  the  services  was 
rendered  in  attempting  to  procure  such  dis- 
solution, as  distinguished  from  those  ren- 
dered in  general  defense  of  the  suit.  Lam- 
bert V.  Alcorn,  144  111.  313,  33  N.  E.  53, 

21:611 

556.  Services  rendered  in  attempting  to 
procure  a  dissolution  of  an  injunction  pen- 
dente lite  in  a  suit  to  enjoin  an  increase  in 
the  flow  of  surface  water  are  to  be  distin- 
guished from  those  rendered  in  making  a 
general  defense  to  the  injunction  suit,  for 
the  purpose  of  awarding  counsel  fees  as  part 
of  the  damages  occasioned  bv  the  injunction. 

Id. 

n.  In  Trademark  and  Patent  Cases. 

Trademark  cases. 

For  Editorial  Notes,  see  infra,  V.  §  24. 

557.  In  an  action  for  damages  for  the 
wrongful  use  of  a  trade  label,  in  the  ab- 
sence of  proof  of  the  measure  of  such  dam- 
ages, the  plaintiff  cannot  recover  the  penalty 
<,nven  by  Minn.  Laws  1885.  chap.  178,  §  4, — 
at  least  where  the  fraudulent  intent  is  not 
shown  on  the  part  of  defendant.  Wat- 
kins  V.  Landon.  52  Minn.  389.  54  N.  W.  193, 

19:  236 

558.  A  party  whose  trademark  has  been 
\iolated    is    entitled   to    recover  all    profits 


realized  by  the  wrongdoer  from  sales  of  thf 
spurious  articles,  and  also  all  damages  re- 
sulting from  such  violation.  Gato  v.  £l 
Modelo  Cigar  Mfg.  Co.  25  Pla.  886,  7  So.  23, 

6:  823 
Patent  cases. 
For  Editorial  Notes,  see  infra,  V.  §  24. 

559.  The  number  of  infringing  articles 
purchased  by  defendant  for  incorporation  in 
to  his  manufactured  product  may  form  the 
basis  of  damages  in  an  action  for  infringe- 
ment of  a  patent,  where,  up  to  the  time  of 
infringement,  he  had  procured  all  his  stock 
from  the  patentee,  who  maintained  a  strict 
monopoly,  and  afterwards  deliberately  sub- 
stituted infringing  articles  for  the  patented 
ones,  so  that  the  conclusion  is  reasonable 
that,  in  the  absence  of  infringement,  he 
would  have  purchased  the  same  quantity 
from  the  patentee.  Rose  v.  Hir«h,  36  C.  C. 
A.  132,  94  Fed.  177,  51:801 

560.  The  difference  between  the  cost  and 
the  selling  price  of  a  number  of  articles 
equal  to  those  used  by  the  infringer  is  the 
proper  measure  of  damages  in  an  action  for 
infringement  of  a  patent,  where  the  expens- 
es of  the  patentee  are  simple  and  easily 
computed,  as  to  which  he  has  suppressed  no 
evidence,  while  defendant  has  not  used  evi 
dence  within  his  power  to  show  that  the  al- 
leged cost  is  erroneous,  while  the  plaintiff's 
evidence  is  corroborated  by  the  cost  of  the 
infringing  articles.  Id. 

o.  Mental  Anguish. 

1.  Accompanying  Physical  Suffering. 

Evidence  as  to,  see  Evidence,  2045. 
Allegations  as  to,  see  Pleading,  253-256. 
Relief  Allowable  under  Pleading,  see  Plead- 
ing, 107. 
Instructions  as  to,  see  Trial,  656,  667. 
See  also  supra,  51,  273,  300;  JNegligence,  22. 
For  Editorial  Notes,  see  infra,  V.  §  26. 

561.  Suffering  in  mind  as  well  as  in  body 
is  ground  for  damages  for  a  personal  injury. 
Chicago  V.  McLean.  133  111.  148.  24  N.  E. 
527,  8:  765 

562.  Mental  anguish  of  a  boy  nine  years 
old,  consisting  of  grief  and  sorrow  over  the 
loss  of  his  limb  and  becoming  a  cripple  for 
life,  is  a  proper  element  of  damages  in  an 
action  by  him  for  injuries  sustained  by  the 
alleged  negligence  of  a  railway  company  at 
a  highway  crossing.  Schmitz  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.  119  x\Io.  256,  24  S.  V. .  472, 

23:  250 

563.  Injuries  caused  bj-  fright  or  shock 
resulting  from  a  bodily  injury  in  connection 
with  a  railroad  collision,  the  accompanying 
explosion,  fire,  and  wreck  of  cars,  and  the 
surrounding  circumstances  directly  connect- 
ed therewith  and  solely  attributable  there 
to,  may  be  included  in  a  recovery  of  the 
damages  sustained  in  the  accident.  Denver 
&  R.  G.  R.  Co.  V.  Roller.  41  O.  C.  .\.  2-2. 
100  Fed.  738.  49-  77 
To  passenger. 

In  Absence  of  Physical  Suffering,  see  infra, 
in.  o,  2,  c. ' 

564.  The  enhancement,  because  of  fright, 
of  the  damages  sustained  by  a  passenger  on 


972 


DAM-VGES.  111.  o,  2 


whom  a  drunken  man  is  thrown  in  a  car 
while  another  drunken  man  is  being  re- 
moved from  the  car,  must  be  limited  to  the 
fright  caused  by  the  personal  contact  with 
the  former,  and  cannot  extend  to  the  fright 
resulting  from  the  general  disturbance. 
Spade  V.  Lynn  &  B.  R.  Co.  172  Mass.  488, 
52  N.  E.  747,  43:  832 

565.  A  carrier  is  liable  for  nervous  shock 
to  a  passenger  resulting  from  a  jar  to  the 
nervous  system  which  accompanies  a  blow 
to  the  person  caused  by  being  thrown  from 
a  seat  through  the  carrier's  negligence,  and 
it  is  not  necessary  to  show  that  the  shock 
is  the  consequence  of  the  blow.  Homans  v. 
Boston  Elevated  Ry.  Co.  180  Mass.  456,  62 
N.  E.  737,  57:  291 

566.  Mental  anguish  because  of  inability 
to  work  and  properly  to  support  his  child  is 
not  a  proper  element  of  damages  to  be  al- 
lowed one  injured  in  a  railroad  accident. 
Mavnard  v.  Oregon  R.  &  Nav.  Co.  (Or.)  78 
Pac.  983.  68:  477 

2.  Unaccompanied   by   Physical  Injury. 

a.  In  General. 

Allegation  as  to,  see  Pleading,  247. 

Right  to  Recover  for  Fright  or  Injuries  Due 

Thereto,  see  Fright. 
Proximate  Cause  of  Injury  by  Fright,  see 

Proximate  Cause,  X. 
See  also  supra,  250,  274. 
For  Editorial  Not«s.  see  infra,  V.  §§  12,  15, 

26. 

567.  An  indignity  need  not  be  done  to  one 
in  the  presence  of  a  number  of  people,  in 
order  to  entitle  the  person  wronged  to  re- 
cover damages  for  the  humiliation  and  dis- 
grace suffered.  Kansas  City,  Ft.  S.  &  M. 
R.  Co.  V.  Little,  66  Kan.  378.  71  Pac.  820, 

61 :  122 
.568.  Damages  for  the  nervous  condition  of 
a  woman,  resulting  in  an  attack  of  bron- 
chitis, are  too  remote  to  be  recovered  in  an 
action  for  the  death  of  her  son.  Norfolk  & 
W.  R.  Co.  v.  Stevens,  97  Va.  631,  34  S.  E. 
525,  46:  367 

569.  No  damages  for  injury  to  feelings 
can  be  recovered  in  an  action  for  conspiracy 
in  pursuance  of  which  the  hearse  and  car- 
riages were  taken  away  from  a  funeral  just 
at  the  time  when  they  were  needed,  since 
there  is  no  physical  injury  witn  which  the 
injury  to  the  feelings  is  eonnnected.  Gatzow 
v.Buening,  106  Wis.  1.  81  N.  W.  1003, 

49:  475 
Breach  of  contract. 
As  to  Telegram,  see  infra,  III,  o,  2,  b. 
See  also  infra,  575-577. 

570.  Damages  are  recoverable  for  depri- 
vation of  intellectual  enjoyment  and  for 
mental  suffering,  resulting  from  the  breach 
of  a  contract.  Lewis  v.  Holmes?,  109  La. 
10.30.  34  So.  66,  61:  274 

571.  An  action  cannot  be  maintained  to 
recover  damages  merely  for  an  alleged  dis- 
tress of  mind,  anxiety,  mortification,  and 
Buspen.se,  resulting  from  the  nonperformance 
of  a  contract,  withotit   any   personal  injury 


or  pecuniary  loss.     Wilcox  v.  Richmond  & 
D.  R.  Co.  3  C.  C.  A.  73.  52  Fed.  264,  8  U. 

5.  App.  118.  17:804 

572.  That  tie  depositor  had  a  nervous 
chill  when  a  protested  check  was  returned  to 
her  cannot  be  considered  in  awarding  dam- 
ages lor  refusal  to  pay  the  check.  American 
yfltj'VJal  Bank  v.  Morey,  113  Ky.  857,  69  S. 
W.  759,  58:  956 
As  to  corpse. 

573.  Substantial  damages  for  injury  to 
feelings  are  recoverable  in  case  of  the  wrong- 
ful mutilation  of  the  body  of  a  deceased  rel- 
ative. Koerber  v.  Patek,  123  Wis.  453,  102 
N.  W.  40,  68:  956 

574.  Recovery  may  be  had  for  injury  to 
the  feelings  and  for  mental  suffering  result 
ing  directly  and  proximately  from  the  un 
lawful  mutilation  of  the  dead  body  of  plain 
tiff's  husband,  although  no  actual  pecuniary 
damage  is  shown.  Larson  v.  Chase,  47  Minn 
307,  50  N.  W.  238,  14:  85 

575.  Mental  angui.sh  suffered  by  the  next 
of  kin  by  reason  of  a  breach  by  a  third  per- 
son of  his  contract  with  them  to  safely 
keep  a  corpse  imtil  they  should  desire  to 
inter  the  same  may  be  considered  in  the  as- 
sessment of  damages  for  such  breach.  Ren- 
ihan  v.  Wright,  125  Ind.  536,  25  N.  E.  822, 

9:  514 

576.  Damages  for  mental  distress  are  re- 
coverable for  negligent  delay  in  the  trans- 
portation of  the  corpse  of  plaintiff's  hus- 
band. Hale  V.  Bonner,  82  Tex.  33,  17  S.  W. 
605,  14:  336 

577.  Mental  suffering  may  be  considered 
in  assessing  the  damages  against  a  carrier 
for  breach  of  its  contract  to  transport  a 
corpse.  Louisville  &  N.  R.  Co.  v.  Hull,  113 
Ky.  561,  68  S.  W.  433,  57:  771 
Ordering  from  public  resort. 

578.  Damages  for  being  wrongfully  or- 
dered to  leave  a  place  of  public  resort  may 
include  compen.sation  fpr  the  sense  of  wrong 
suffered,  the  fe«ling  of  humiliation,  and  the 
disgrace  aad  vr.<xtt»^  erjffonng.  Davis  v.  Ta- 
coma  K.  &  P.  Co.  .35  Wash.  203,  77  Pac.  209. 

66:  802 
Assault. 

579.  Damages  for  mental  suffering  may 
be  included  in  the  compensation  awarded  to 
one  upon  whom  an  assault  is  committed  by 
coercing  him  into  abandoning  a  house  by 
threats  of  shooting  him  with  a  gun  which 
the  assailant  points  at  him.  Kline  v.  Kline, 
158  Ind.  602.  64  N.  E.  9.  58:  397 
Libel. 

See  also  supra,   285,  286. 

580.  Mental  anguish  cannot  be  allowed  as 
a  part  of  the  damages  in  case  of  a  libel 
which  is  not  actionable  per  se,  without 
proof  of  .some  other  injury  or  damage. 
Hirshfield  v.  Ft.  Worth  Nat.  Bank,  83  Tex. 
452,  18  S.  W.  743,  15:  639 

6.  From   Delay  in   Delivering   Telegram   or 

Transmitting  Money. 

Conflict  of  Laws  as  to.  see  Conflict  of  Laws, 

101. 
Constitutionality    of    Provision    as    to,    see 

Constitutional  Law.  412. 


DAMAGES,  III.  o,  2. 


078 


Following  State-   Derision  as  to,  see  Courts, 

553. 
Evidence  as  to,  see  Evidence,  1857. 
Allegation  of  Damjxge,  see  Pleading,  246. 
See  also  Telegraphs,  61,  64. 
For  Editorial  Notes,  see  infra,  V.  §§  9,  26. 

581.  Mental  anguish  resulting  from  fail- 
ure to  promptly  deliver  a  telegram  will  not 
support  an  action  against  the  telegraph 
company  for  such  failure.  Western  U. 
Teleg.  Co.  v.  Ferguson,  157  Ind.  64,  60  N.  E. 
674,  54:846 

582.  Damages  for  mental  suffering  cannot 
be  recovered  for  failure  to  transmit  and  de- 
liver a  telegram.  Francis  v.  Western  U. 
Teleg.  Co.  58  Minn.  252,  59  N.  W.  1078, 

25:  406 

583.  The  sender  of  a  telegraphic  message, 
whose  message  has  been  delayed,  cannot  re- 
cover damages  for  mental  suffering  and  an- 
guish alone,  wh^en  unmixed  with  other  in- 
jury. Chase  v.  Western  U.  Teleg.  Co.  44 
Fed.  554,  10:  464 

584.  Damages  for  mental  distress  cannot 
be  recovered  for  failure  to  deliver  a  tele- 
gram promptly,  although  the  telegraph 
company  was  advised  that  great  mental  suf- 
fering and  pain  would  result  from  such  fail- 
ure. Connell  v.  Western  U.  Teleg.  Co.  116 
Mo.  34,  22  S.  W.  345,  20:  172 

585.  Damages  for  mental  anguish  result- 
ing from  simple  negligence  in  the  prompt  de- 
livery of  a  telegram  are  too  uncertain,  re- 
mote, and  speculative  to  be  recoverable. 
Western  U.  Teleg.  Co.-  v.  Wood.  13  U.  S.  App. 
.•{17,  6  C.  C.  A.  432,  57  Fed.  471,  21:  706 

68G.  Mental  pain  and  suffering  is  not  an 
element  of  damage  for  which  a  recovery  can 
be  had  in  an  action  sounding  in  tort,  but  for 
compensatory  damages  for  the  breach  of  a 
contract  by  a  telegraph  company  to  prompt- 
ly send  or  deliver  a  telegraphic  message.  In- 
ternational Ocean  Teleg.  Co.  v.  Saunders, 
32  Fla.  434,  14  So.   148,  21 :  810 

587.  Mental  anguish  independent  of  and 
unaccompanied  by  physical  injury  of  any 
kind  cannot  be  recovered  for  delay  in  deliv- 
ering a  telegram.  Peav  v.  Western  U.  Teleg. 
Co.  64  Ark.  538.  43  S."W.  965.  39:  463 

588.  The  negligent  failure  of  a  telegraph 
company  to  deliver  a  message  does  not  au- 
thorize an  action  by  him  to  whom  it  is  ad- 
dressed, to  recover  for  resulting  injury  to  his 
feelings  and  affections,  when  no  other  injury 
results.  Morton  "v.  Western  U.  Teleg.  Co. 
.53  Ohio  St.  431,  41  N.  E.  689,  32:  735 

589.  Damages  cannot  be  recovered  for 
mere  mental  suffering  caused  by  failure  to 
promptly  deliver  a  telegram,  either  tit  com- 
mon law  or  under  statutes  imposing  penal- 
ties for  failure  to  promptly  transmit  and 
deliver  telegrams,  authorizing  the  recovery 
of  damages  sustained  by  reason  of  the  vio- 
lation of  a  statute,  and  making  telegraph 
companies  liable  for  special  damages  occa- 
sioned in  transmitting  or  delivering  des- 
patches, in  determining  the  quantum  of 
which  grief  and  mental  anguish  may  be  con- 
sidered. Connellv  v.  Western  U.  Teleg.  Co. 
100  Va.  51,  40  S.'E.  618,  56:  663 

590.  Mental  anguish  and  suffering  will 
sustain   an   action   for    broach    of    contract 


promptly    to   transmit   and   deliver   a   tele 
gram.    Cowan  v.  Western  U.  Teleg.  Co.  122 
Iowa,  379,  98  N.  W.  281,  64:  545 

591.  Damages  may  be  allowed  for  mental 
suffering  for  failure  to  deliver  a  telegram, 
although  it  is  not  accompanied  by  physical 
suffering  or  injury.  Barnes  v.  Western  LT. 
Teleg.  Co.  27  Nev.  438,  76  Pac.  931,    05:  666 

592.  Damages  for  mental  suffering,  inde- 
pendent of  any  physical  injury,  may  be  re- 
covered for  negligence  in  the  delivery  of  a 
telegram  the  character  of  which  is  known 
to  the  telegraph  company.  Mentzer  v. 
Western  U.  Teleg.  Co.  93  Iowa,  752,  62  N. 
W.  1.  28:  72 

593.  Injury  to  feelings  occasioned  by  a 
failure  to  deliver  a  message  relating  to  do- 
mestic affairs,  where  the  failure  is  the  result 
of  negligence  of  the  company  or  its  serv- 
ants, is  an  element  of  actual  damages. 
Western  U.  Teleg.  Co.  v.  Cooper,  71  Tex.  507, 
9  S.  W.  598,  1 :  728 

594.  A  telegraph  company  may  be  held 
liable  for  damages  for  mental  anguish 
where,  by  reason  of  its  failure  to  deliver  a 
telegram,  friends  fail  to  meet  a  sixteen- 
year-old  girl  who  arrives  after  midnight  in 
a  strange  city  and  is  compelled  to  drive  two 
miles  in  company  with  a  strange  driver  in 
search  of  their  residence.  Green  v.  Western 
U.  Teleg.  Co.  136  N.  C.  489,  49  S.  E.  165, 

67:  985 
Summoning  physician. 
See  also  supra,  189,  203. 

595.  A  fatlier  cannot  recover  from  a  tele- 
graph company  for  mental  anguish  in  wit- 
nessing the  suffering  of  his  child  because  of 
failure  of  the  company  promptly  to  deliver 
a  telegram  summoning  the  doctor  to  relieve 
him, — at  least  where  there  is  nothing  on  the 
face  of  the  telegram  to  apprise  the  company 
that  such  a  claim  will  be  the  result  of  its 
negligence.  Western  h.  Teleg.  Co.  v.  Reid, 
27  Ky.  L.  Rep.  659,  85  S.  W.  1171,        70:  289 

596.  The  death  of  a  child  before  birth,  and 
the  grief  and  sorrow  of  the  parents  occa- 
sioned thereby,  cannot  be  elements  of  dam- 
ages in  a  suit  against  a  telegraph  company 
for  failure  to  deliver  a  message  to  a  physi- 
cian summoning  him  to  attend  the  mother; 
but  a  fair  and  reasonable  consideration 
should  be  allowed  for  any  increased  pain  and 
mental  suffering  caused  her  by  his  absence. 
Western  U.  Teleg.  Co.  v.  Cooper.  71  Tex.  .507. 
9  S.  W.  598,  1 :  728 

597.  A  husband  can  sue  for  injuries  of 
body  and  mind  sustained  by  his  wife  on  ac- 
count of  the  failure  of  a  telegraph  company 
to  deliver  a  message  to  summon  a  physi- 
cian; but  he  cannot  recover  on  his  own  ac- 
count for  his  anxiety  and  sympathy.  Id. 
Summoning  minister. 

598.  Mental  anguish  of  a  father  caused 
by  the  failure  of  a  minister  to  reach  his 
dauffhtor  until  after  she  was  dead,  when  he 
had  telegraphed  for  him  because  of  her  de- 
sire for  baptism  and  union  with  the  church, 
is  not  without  foundation  merely  because 
complete  church  membership  could  not  have 
been  consummated  during  her  life,  but  may 
be  the  liasis  of  a  caii^e  of  action  against  the 


«74 


DAMAGES,  III.  p,  1. 


telegraph  company.     Western  U.  Teleg.  Co. 
V.  Robinson,  97  Tenn.  638,  37  S.  W.  545, 

34:  431 

599.  A  verdict  for  $500  is  not  excessive  as 
damages  for  the  mental  anguish  suflfered  by 
a  father  on  account  of  inexcusable  delay  in 
delivering  a  telegram  to  a  minister  of  the 
gospel  calling  him  to  the  bedside  of  a 
daughter  who  desired  baptism  and  union 
with  the  church,  where  the  result  was  that 
he  failed  to  come  until  after  she  was  dead. 

Id. 
Announcing  illness  or  death. 

600.  A  grandmother  may  recover  damages 
for  mental  anguish  for  failure  promptly  to 
deliver  to  her  a  telegram  announcing  the 
serious  illness  of  her  grandchild.  Western 
U.  Teleg.  Co.  v.  Crocker,  135  Ala.  492,  33  So. 
45,  59:  398 

601.  Mental  anguish  caused  by  the  failure 
to  reach  the  bedside  of  a  person  sick  unto 
death,  before  death  takes  place,  on  account 
of  the  negligence  of  a  telegraph  company  in 
not  delivering  a  message  promptly  acco^rding 
to  its  contract,  is  a  ground  for  the  recovery 
of  substantial  damages  against  the  com- 
pany. Reese  v.  Western  U.  Teleg.  Co.  123 
Tnd.  294,  24  N.  E.  163,  7:  583 
Young  V.  Western  U.  Teleg.  Co.  107  N.  C. 
.'?70,  11  S.  E.  1044,  9:  669 

602.  Damages  on  account  of  mental  pain 
and  suffering  from  failure  to  deliver  a  tele- 
gram in  due  time  cannot  be  recovered  by  the 
person  addressed,  who  is  thereby  informed 
of  the  desperate  illness  of  his  brother,  and 
requested  to  come,  although  the  delay  makes 
it  impossible  for  him  to  reach  his  brother 
before  death  occurs.  Chapman  v.  Western 
TT.  Teleg.  Co.  88  Ga.  763,  15  S.  E.  901, 

17:  430 

603.  Mental  suffering  sustained  by  one  de- 
prived of  attending  the  funeral  of  his  broth- 
er is  not  an  element  of  damages  for  failure 
to  deliver  a  telegram.  Western  U.  Teleg.  Co. 
V.  Rogers,  68  Miss,  748,  9  So.  823,        13:  859 

604.  Mere  disappointment  and  regret  are 
not  included  in  the  rule  allowing  damages 
for  mental  anguish  upon  failure  of  a  tele- 
graph company  promptly  to  deliver  a  death 
message.  Hancock  v.  Western  U.  Teleg.  Co. 
137  N.  C.  497,  49  S.  E.  952,  69:  403 

605.  Damages  for  mental  anguish  caused 
by  negligent  failure  to  deliver  promptly  a 
telegram  stating  that  a  person  has  been 
killed  may  be  recovered,  although  the  mes- 
sage is  sent  by  an  agent  without  disclosing 
who  sent  it  or  the  relations  of  the  sender 
with  the  addressee.  Cashion  v.  Western  U. 
Teleg.  Co.  124  N.  C.  459,  .32  S.  E.  746, 

45:  160 
Delay  m  transmitting  money. 

606.  Damages  cannot  be  recovered  for 
mental  anguish  caused  by  breach  by  a  tele- 
graph company  of  its  contract  to  transmit 
money  promptly.  Robinson  v.  Western  U. 
Teleg.  Co.  24  Kv.  L.  Rep,  452.  68  S.  W.  656, 

.57:  611 

c.  Failure  of  Duty  to  Passenger. 

See  also  supra,  218.  223,  304.  564.  565,  576, 

577, 
For  Editorial  Notes,  spo  infra.  V.  §  11. 


607.  Ignorance  of  a  carrier  of  the  suscep- 
tibility of  a  passenger  to  nervous  disturb- 
ance, and  absence  of  reason  to  anticipate 
nervous  disorder  from  an  injury,  will  not 
prevent  its  liability  if  such  a  disorder  is  ac- 
tually caused  by  its  negligence,  Sloane  v. 
Southern  California  R.  Co.  Ill  Cal.  668,  44 
Pac,  320,  32:  193 

608.  The  injury  inflicted  upon  a  street  car 
passenger  through  mental  suffering,  humilia- 
tion, wounded  pride,  and  disgrace  because  of 
the  act  of  the  conductor  in  calling  her  a 
deadbeat  when  she  asked  for  the  proper 
change  for  money  she  has  tendered  in  pay 
ment  of  fare  may  be  considered  in  assessing 
the  damages  for  breach  of  the  carrier's  con- 
tract to  return  the  proper  change  for  money 
tendered,  Gillespie  v.  Brooklyn  Heights  R. 
Co,  178  N,  Y,  347,  70  N,  E.  857,  66:  618 
Ejection. 

609.  A  railroad  company  is  liable  in  dam- 
ages for  injury  to  the  feelings  and  sensibili- 
ties of  a  passenger,  caused  by  his  wrongful 
expulsion  from  one  of  its  cars,  though  he 
may  not  have  received  any  physical  injury 
thereby.  Mabry  v.  City  Electric  R.  Co.  116 
Ga.  624,  42  S.  E.  1025,  59:  590 

610.  Compensation  for  shame  and  morti- 
fication may  be  included  in  damages  for  un 
necessary  violence  and  insult  in  ejecting  a 
passenger  for  nonpayment  of  fare.  Texas 
&  P,  R,  Co.  v.  James,  82  Tex,  306,  18  S.  W. 
589,  15:  341 

p,  lx)ss  of  Profits. 

1,  In  General. 

See  also  supra,  259,  558, 
For  Editorial  Notes,  see  infra,  V,  §§  9,  13, 
14,  20-251/2, 

611.  The  damages  for  loss  of  business 
caused  by  an  illegal  combination  of  other 
persons  may  include  the  profits  which  would 
have  been  made  except  for  the  unlawful  in 
terference.  Jackson  v.  Stanfield,  137  Ind. 
592,  36  N,  E.  345,  37  N.  E.  14,  23:  588 
Due  to  personal  injury. 

Loss  of  Earning  Power  and  Probable  Accu- 
mulations as  Element  of  Damage,  see 
supra,  346-353. 
See  also  supra,  301. 
For  Editorial  Notes,  see  infra,  V.  §  24. 

012.  The  profits  of  a  boarding  house  con 
ducted  by  one  injured  by  negligence  may  be 
considered  in  determining  her  earning  power, 
as  an  element  of  damages  to  be  awarded  for 
the  injury.  Wfillace  v,  Pennsylvania  R.  Co. 
195  Pa.  127,  45  Atl.  685,  "  52:  33 

Destruction  of  personal  property. 
For  Editorial  Notes,  see  infra.  V.  §  24. 

613.  The  measure  of  damage^  in  an  action 
against  a  shipowner  to  recover  damages  for 
his   running  his  vessel  upon  and  partially 
destroying  a  fishing  net  is  the  cost  of  re 
pairing  the  net  and  the  value  of  the  labor  re- 
quired to  reset  it,  together  with  the  value  of 
its  use  during  the  time  it  is  necessarily  idle-, 
prospective  profits  which  might  have  been 
realized  from  a  continued  use  of  the  net  can 
not  be  allowed  as  damages.    Wright  v.  Mul 
vaney.  78  Wis.  89.  46  N.  W.  1045,        9:  807 


DAMAGES,  111.  p,  2. 


975 


Destruction  of  crops. 

UM.  Neither  the  probable  yield  and  net 
profits  from  a  crop  which,  at  the  time  of  in- 
jury, was  not  beyond  the  blossoming  stage, 
nor  the  result  of  sales  of  similar  crops  grown 
on  neighboring  land  during  the  same  season, 
can  be  considered  in  assessing  damages  for 
the  destruction  of  the  plants  by  poisonous 
gases.  Horres  v.  Berkeley  Chemical  Co.  57 
S.  C.  189,  35  S.  E.  500,  52:  36 

Exclusion  from  land. 

615.  The  damages  recoverable  for  wrong- 
ful exclusion  by  a  cotenant  from  a  mine  in 
which  plaintiff  has  an  undivided  interest 
consist  in  the  loss  of  profits  that  he  would 
have  made  but  for  such  exclusion.  Paul  v. 
Cragnas,  25  Nev.  293,  59  Pac.  857,  60  Pac. 
983,  '  ,  47:  540 
By  exercise  of  power  of  eminent  domain. 
Limiting  Period  for  which  Losses  Allowed, 

see  Appeal  and  Error,  521. 
See  also  supra,  482. 
For   Editorial   Notes,   see   infra,    V.    §§    17, 

25%. 

616.  Future  profits  of  business  cannot  be 
considered,  for  any  purpose  whatever,  in  es- 
timating the  damages  sustained  by  the  own- 
er of  land  which  is  injured  by  an  exercise  of 
the  right  of  eminent  domain.  Philadelphia 
Ball  Club  V.  Philadelphia,  192  Pa.  632,  44 
Atl.  265,  46:724 

617.  Anticipated  profits  from  contemplat- 
ed use  of  property  taken  cannot  be  consid- 
ered in  estimating  the  damages  to  be  award- 
ed in  eminent  domain  proceedings.  Hamil- 
ton V.  Pittsburg,  B.  &  L.  E.  R.  Co.  190  Pa. 
51,  42  Atl.  369,  51<  319 

618.  Diminished  profits  because  of  removal 
of  a  business  is  not  an  element  of  damages 
to  be  paid  by  a  railroad  company  for  the 
taking  of  the  land  on  which  it  was  formerly 
carried  on.  Becker  v.  Philadelphia  &  R.  T. 
R.  Co.  177  Pa.  252,  35  Atl.  617,  35:  583 

2.  From,  Breach  of  Contract. 

See  also  supra,  127,  231. 

For  Ji/ditorial  Notes,  see  infra,  V.  §  22. 

619.  The  rule  that  damages  which  are  un- 
certain or  contingent  cannot  be  recovered 
does  not  apply  to  an  uncertainty  as  to  the 
value  of  the  benefit  or  gain  to  be  derived 
from  performance,  but  to  an  uncertainty  or 
contingency  as  to  whether  any  such  gain  or 
benefit  would  be  derived  at  all.  Blagen  v. 
Thompson,  23  Or.  239,  31  Pac.  M7,      18:  315 

620.  Profits  remote  and  speculative  and 
incapable  of  clear  and  direct  proof  cannot  be 
recovered;  but,  when  they  are  the  direct  and 
immediate  fruits  of  the  contract,  they  may 
be;  they  are  then  part  and  parcel  of  the  con- 
tract itself,  entering  into  and  constituting 
a  portion  of  its  verv  elements.  Taylor  Mfg. 
Co.  V.  Hatcher,  39  Fed.  440.  3:  587 

621.  Loss  of  anticipated  profits  may  be 
recovered  in  a  proper  case  for  breach  of  con- 
tract, in  addition  to,  and  not  merely  as  an 
alternative  remedy  for,  a  recovery  of  the 
amount  of  outlay  and  expenditures  and  the 
value  of  the  time  and  services  spent  in  reli- 
ance on  the  contract.  Wells  v.  National  Life 
Asso.  39  C.  C.  A.  476.  99  Fed.  222,  .'>3:  33 


622.  The  loss  uf  profits  for  the  unper- 
formed i>art  of  a  contract  cannot  be  includ- 
ed in  the  damages  recoverable  for  breach  of 
the  contract  by  mere  nonpayment  for  the 
part  performed,  even  if  that  prevented  fur- 
ther performance.  Bethel  v.  Salem  Improv. 
Co.  93  Va.  354,  25  S.  E.  304,  33:  602 

623.  The  party  injured  by  the  breach  of  a 
contract  is  entitled  to  recover  all  his  dam 
ages,  including  gains  prevented,  as  well  as 
losses  sustained,  provided  such  damages  may 
fairly  be  supposed  to  have  been  within  the 
contemplation  of  the  parties  when  they 
made  the  contract,  and  are  certain  both  in 
their  nature  and  in  respect  to  the  cause 
from  which  they  proceed.  Hunt  v.  Oregon 
P.  R.  Co.  13  Sawy.  516,  36  Fed.  481,      1:  842 

624.,  In  a  suit  for  damages  on  alleged 
breach  of  a  contract  whereby  the  plaintiff 
agreed,  in  consideration  of  certain  payments 
to  be  made  as  the  work  progressed,  to  con- 
struct 52  miles  of  railway,  where  the  de- 
fendant set  up  a  counterclaim  for  failure  to 
construct  the  road,  and  claimed  damages  (1) 
for  the  loss  of  the  use  of  the  road;  (2)  for 
the  loss  of  certain  freight  which  it  had  made 
arrangements  to  carry  over  the  road;  (3) 
for  the  sum  it  will  cost  to  complete  the  road 
in  excess  of  the  contract  price, — the  last  two 
clauses  were  stricken  out  of  the  counter- 
claim, the  one  as  arising  on  a  collateral  con 
tract  not  within  the  contemplation  of  the 
parties,  and  the  other  ,as  being  uncertain 
and  also  contingent  on  the  future  construc- 
tion of  the  road  by  the  defendant.  Id. 

625.  When  there  have  been  part  perform- 
ance and  expenditures  properly  made  by 
one  of  the  parties  to  a  contract  which  is 
broken  by  fault  of  the  other  party,  the 
party  performing  may  recover  his  reasonable 
expenditures.  He  may  also  recover  the  prof- 
its of  the  contract,  if  he  proves  that  direct, 
as  distinguished  from  speculative,  profits 
would  have  been  realized.  If  the  expendi- 
tures of  the  party  not  at  fault  are  unrea 
Bonable,  it  is  the  duty  of  the  opposite  party 
to  show  it.  Taylor  Mfg.  Co.  v.  Hatcher,  39 
Fed.  440,  3:587 

626.  The  leading  English  case  announcen 
the  rule  of  damages  thus:  "When  two  par- 
ties have  made  a  contract  which  one  of  them 
has  broken,  the  damages  which  the  other 
party  ought  to  receive  in  respect  to  such 
breach  of  contract  should  be  such  as  may 
fairly  and  reasonably  be  considered  either  as 
arising  naturally — i.  e.,  accofding  to  the 
usual  course  of  things — from  such  breach  of 
contract  itself,  or  such  as  may  reasonably  be 
supposed  to  have  been  in  the  contemplatioTi 
of  both  parties  at  the  time  they  made  the 
contract,  as  the  probable  result  of  breach  of 
it.  Id 

627.  Where,  by  the  wrongful  action  of  a 
party,  the  profits  of  a  contract  have  been 
prevented,  all  recovery  therefor  will  not  be 
defeated  because  exact  and  absolute  proof  is 
unattainable;  and,  in  view  of  the  tortious 
refusal  of  the  party  at  fault  to  perform  its 
contract,  the  party  injured  is  permitted  to 
show  the  particular  facts  which  have  trans- 
pired, and  the  entire  transaction  upon  which 
the    claim    and    expectation    of    profits    are 


976 


DAMAGES.  III.  q. 


founded,  in  order  to  prove  with  reasonable 
certainty  what  the  profits  would  have  been. 

Id. 

628.  The  true  measure  of  damages  for  thf: 
breach,  by  the  owners  of  a  fair  ground,  of  a 
contract  made  when  renting  ground  upon 
which  a  candy  stand  is  to  be  located,  not  to 
rent  ground  for  competing  stands  within 
designated  limits,  is  the  difference  in  the 
rental  value  of  the  ground  when  unoccupied 
by  competing  stands  and  when  so  occupied. 
The  profits  which  could  have  been  realized 
upon  goods  that  were  not  sold  in  conse- 
quence, as  alleged,  of  the  competition  of  ri- 
val sellers,  are  too  speculative  and  remote. 
Montgomery  Countv  U.  Agri.  See.  v.  Har- 
wood,  126  ind.  440,'  26  N.  E.  182,       10:  532 

629.  The  measure  of  damages  in  favor  of 
a  contractor  who  is  obliged  by  the  acts  or 
negligence  of  his  employer  to  abandon  hia 
contract  is  the  profits  which  he  would  have 
earned  had  he  been  able  to  complete  the 
contract.  Lvnch  v.  Sellers,  41  La.  Ann.  375, 
6  So.  561,     '  5:  682 

630.  The  loss  of  the  profits  or  gains  of  a 
contract  for  land,  which  the  purchaser  la 
obliged  to  surrender  because  of  the  failure 
to  construct  a  motor  railway  in  accord- 
ance with  a  contract  made  with  him  by  a 
third  person  who  knows  that  his  object  in 
the  latter  contract  is  to  enhance  the  value  of 
the  land,  may  be  included  in  the  damagea 
for  breach  of  the  contract  to  build  the  road. 
Blagen  v.  Thompson.  23  Or.  239.  31  Pac.  647, 

18:  315 
With  insurance  agent. 
Opinion  Evidence  as  to,  see  Evidence,  1327. 

631.  Loss  of  profits  that  would  have  been 
realized  by  a  general  agent  of  an  insurance 
company  in  carrying  out  his  contract,  which 
gave  him  an  exclusive  agency  for  a  certain 
territory,  may  be  included  in  the  damages 
recoverable  for  breach  of  the  contract  by  the 
company  in  putting  other  agents  into  his 
territory.  Wells  v.  National  Life  Asso.  39 
C.  C.  A.  476,  99  Fed.  222.  53:  33 

C32.  In  estimating  the  loss  of  profits 
which  may  be  recovered  by  a  general  insur- 
ance agent  who  had  an  exclusive  agency  for 
a  certain  territory,  with  a  right  to  a  per- 
centage on  all  first  and  renewal  premiums 
on  policies  taken  by  himself  or  his  agents, 
and  who  was  himself  required  to  bear  all 
the  expenses  of  the  business,  the  jury  may 
consider  the  renewals  from  year  to  year 
during  the  life  of  the  contract  on  all  policies 
written  by  him  or  his  agents,  and  the  first 
premiums  and  probalile  renewals  on  all 
policies  written  by  the  company  after 
breach  of  the  contract  in  that  territory,  de- 
ducting therefrom  the  current  expenses  and 
the  value  of  the  personal  services  whidi  the 
business  would  have  cost  him  if  he  had  done 
it,  since  the  standard  for  measuring  his 
interei=t  in  the  contract  is  fixed  bv  its  terms. 

Id. 
By  seller. 
For  Editorial  Notes,  see  infra.  V.  §§  22,  23. 

633.  The  measure  of  damages  in  case  one 
believing  that  he  has  a  right  to  convey  real 
estate  contracts  in  good  faith  to  do  so.  but 
is  prevented   from  fulfilling  his  contract  by 


failure  of  title,  is  the  amount  ol  llie  advance 
payment,  with  interest,  and  not  the  alleged 
profit  which  would  have  accrued  from  the 
purchase.  Morgan  v.  Bell.  3  Wash.  554,  28 
Pac,  925,  16:  614 

634.  Extraordinary  and  unusual  profits 
lost  by  a  purchaser  of  goods  on  account  of 
the  vendor's  failure  to  comply  with  his 
agreement  cannot  be  recovered  as  damages, 
although  the  vendor  knew  that  the  goods 
were  bought  to  fill  a  previous  contract  with 
a  third  person,  if  he  did  not  know  the  price 
which  was  to  be  obtained  under  it,  and  could 
not  reasonably  have  been  presumed  to  have 
had  in  contemplation  a  price  which  would 
yield  such  profit.  Guetzkow  Bros.  Co.  v.  A. 
H.  Andrews  &  Co.  92  Wis.  214,  66  N.  W,  119, 

52:  209 

635.  A  reasonable  and  fair  profit  lost  by 
a  purchaser  of  goods  who  bought  them  to 
fill  another  contract  may  be  recovered  as 
damages  for  the  failure  of  the  vendor  to 
comply  with  his  agreement,  if  he  knew  for 
what  the  goods  were  bought,  although  he  did 
not  know  the  price  that  was  to  be  obtained 
by  the  vendee  under  his  contract  with  the 
third  person.  Id. 

636.  Lost  profits  on  the  entire  lot  of  ma- 
chines cannot  be  recovered  for  failure  to 
manufacture  them  according  to  the  specifica- 
tions of  the  contract,  where  one,  at  least, 
has  been  accepted  and  paid  for.  J.  Thomp- 
son Mfg.  Co.  v.  Gunderson,  106  Wis.  449,  82 
N.  W.  299,  49:  859 

637.  The  damages  recoverable  from  one 
who  sells  poisonous  coloring  matter  to  be 
used  in  the  manufacture  of  ice  cream,  rep- 
resenting it  to  be  harmless,  may  include  the 
value  of  the  cream  ignorantly  spoiled  by  its 
use,  and  also  compensation  for  loss  of  busi- 
ness by  the  manufacturer  which  results 
from  his  innocently  delivering  the  poisoned 
cream  to  his  customers.  Swain  v.  Schi^'ffe- 
lin,  134  N.  Y.  471,  31  X.  E.  1025,  18,  385 
By  purchaser. 

For  Editorial  Notes,  see  infra,  V.  §§  22,  23. 

638.  Where  a  person  agreeing  to  purchase 
lumber  to  be  sawed  by  another  notifies  the 
latter  that  he  will  not  perform  the  contract, 
after  the  latter  has  purchased  the  logs,  but 
before  any  have  been  sawed,  the  rule  of 
damages  is  the  profit  which  the  latter  would 
have  made  on  the  contract  had  he  been 
permitted  to  perform.  Cameron  v.  White, 
74  Wis.  425,  43  N.  W.  155,  5:  493 

q.  Time  for  Which  Recoverable;  Prospective. 

Splitting  Cause   of  Action   for  Continuous 

Injury,  see  Action  or  Suit,  II.  c 
Instructions  as  to,  see  Trial,  771,  773. 
See  also  supra,  482^85,  507,  523-525. 
For  Editorial  Notes,  see  infra,  V.  §  17. 

639.  In  an  action  of  assumpsit  for  week- 
ly benefits  due  from  a  relief  association,  re- 
covery can  be  had  only  for  what  was  due  at 
the  time  the  writ  issued.  Baltimore  &  O. 
Employees'  Relief  Asso.  v.  Post,  122  Pa.  579, 
15  Atl".  885,  2:  44 

640.  One  who  acquires  an  invalid  title  to 
the  fee  of  lands  which  have  been  condemned 
for    railroad    purposes    and    afterwards    ap- 


DAMAGES,  III.  r,  s. 


977 


plied  to  other  uses,  and  who  subsequently 
biino-s  suit  upon  such  title  and  recovers  a 
judgment  for  the  laud  against  the  holder  of 
the  legal  title,  can  recover  rent  for  such 
premises  only  from  the  time  his  si'it  was 
brought,  and  not  from  the  time  he  first 
claimed  title.  Lyon  v.  McDonald,  78  Tex. 
71.    14   S.   W.  261.  9:  295 

Personal  injury  cases. 
For  Editorial  Notes,  see  infra,  V.  §  11. 

641.  Damages  for  loss  of  service  because 
of  personal  injuries  include  prospective  dam- 
aiii's.  Dollard  v.  Roberts,  130  N.  Y.  269,  29 
X.  E.  104,  14:  238 

642.  Prospective  damage  by  the  impair- 
ment of  plaintiff's  capacity  for  earning  a 
livelihood  after  his  majority  is  a  proper  ele- 
ment in  an  action  for  personal  injuries  by  a 
minor  nine  years  old,  although  h?s  petition 
contains  no  specific  allegation  in  regard 
tlioreto.  and  there  is  no  direct  evidence  on 
the  subject.  Schmitz  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.  119  Mo.  256.  24  S.  W.  472,      23:  250 

643.  Pain  and  suffering  that  may  reason- 
ably be  expected  in  the  future  may  be  con- 
sidered in  giving  damages  for  personal  inju- 
ries, if  the  evidence  shows  that  they  will  be 
experienced  as  a  result  of  the  injury. 
Feeuev  v.  I^ng  Island  R.  Co.  116  ?v.  Y.  375, 
22  N.E.  402,  5:  544 

644.  One  injured  by  the  negligence  of  an- 
other can  recover  only  for  such  future  pain 
as  the  evidence  shows  she  is  reasonably  cer- 
tain to  endure,  and  not  for  such  as  there  is 
a  reasonable  probability  that  she  will  en- 
dure. Smith  V.  Milwaukee  Builders'  &  T. 
Exch.  91  Wis.  360,  64  N.  W.  1041,        30:  504 

645.  Damages  for  future  suffering  because 
of  a  negligent  injury  may  be  allowed  where 
plaintiff  is  still  suffering  at  the  time  of  trial, 
and  experts  testify  that  the  injury  will 
))robablv  be  permanent.  Cotant  v.  Boone 
Suburban  R.  Co.  125  Iowa,  46,  99  N.  W.  115, 

69:  982 

646.  The  shortening  of  the  expectancy  of 
life  by  personal  injuries  does  not  constitute 
an  element  of  damages  recoverable  by  tho 
person  injured.  Richmond  Gas  Co.  v.  Baker. 
146  Ind.  600,  45  N.  E.  1049.  36:  683 
Assault. 

647.  Plaintiff  may  recover  in  an  action  for 
damages  for  an  assault  and  battery  such 
damages  as  are  the  natural  result  of  his  in- 
jury, without  specific  averment,  though  such 
damages  accrue  after  the  commencement  of 
the  suit.  Morgan  v.  Kendall,  124  Ind.  454, 
24  N.  E.  143,  9:  445 
Railroad  embankment. 

648.  Damages  may  be  recovered  for  the 
■entire  injury  to  abutting  property  by  a  rail- 
road embankment  in  a  street;  and  the  re- 
covery is  not  limited  to  such  damages  as  had 
been  sustained  up  to  the  commencement  of 
the  action.  Highland  Ave.  &  B.  R.  Co.  v. 
Matthews.  99  Ala.  24,  10  So.  267,       14:  462 

649.  Both  present  and  prospective  damages 
•can  be  recovered  in  a  single  action  for  fail- 
ure to  make  sufficient  passageway  for  water 
through  a  railroad  embankment,  provided 
that  either  party  to  the  action  demands 
that  permanent  damages  be  assessed.  Ridley 
V.  Seaboard  &  R.  R.  Co.  118  N.  C.  996,  24 
S.  E.  730.  32:  708 

L.R.A.  Dig.— 62. 


Maintenance  of  nuisance. 

See  also  supra,  443;  Evidence.  423. 

650.  In  an  action  for  damages  for  the 
maintenance  of  a  nuisance  on  premises  ad- 
joining plaintiff's  property,  only  the  dam- 
ages which  have  accrued  prior  to  the  com- 
mencement of  the  action  can  be  recovered. 
Aid  worth  v.  Lynn,  153  Mass.  53,  26  N.  E. 
229,  10:  210 

651.  Damages  for  injuries  after  the  com- 
mencement of  a  suit  cannot  be  given  in  an 
action  for  a  continuing  nuisance,  such  as  a 
roof  and  eaves  trough  so  placed  as  to  send 
water  against  plaintiff's  house  upon  the  oc- 
currence of  every  rain  storm.  Joseph 
Schlitz  Brewing  Co.  v.  Compton,  142  Dl.  511. 
32  N.  E.  693,  18:390 

652.  Damages  for  an  alleged  negligent  con- 
struction of  a  sewer,  in  consequence  of  which 
plaintifFs  premises  are  injured  by  discharge 
therefrom,  must  be  limited  to  the  actual 
damage  sustained  up  to  the  time  of  bringing 
suit,  and  cannot  include  prospective  dam- 
ages, on  the  ground  that  the  defects  are  per- 
manent, although  human  labor  will  be  neces- 
sary to  remedy  the  defects.  Nashville  v. 
Comer,  88  Tenn.  415,  12  S.  W.  1027,      7 :  465 

r.  Counsel  Fees. 

In  Injunction  Case,  see  supra,  553-556. 
See  also  supra,  258. 

653.  Counsel  fees  incurred  in  defending  the 
title  cannot  be  included  in  the  damages  to 
be  awarded  for  breach  of  warranty  of  real 
estate,  unless  the  covenantor  has  been  noti- 
fied to  come  in  and  defend.  Wiggins  v.  Pen- 
der. 132  N.  C.  628,  44  S.  E.  362,         61:  772 

654.  Counsel  fees  expended  in  good  faith 
in  an  effort  to  recover  the  money  are  not 
properly  part  of  the  damages  to  be  recov- 
ered from  a  telegraph  company  by  a  bank 
which  nas  been  induced  to  pay  out  money  by 
a  false  telegram  forwarded  by  an  employee 
of  the  company,  either  at  common  law  or 
under  a  statute  allowing  as  damages  for  the 
conversion  of  property  a  fair  compensation 
for  the  money  properly  expended  in  pursuit 
of  it.  Pacific  Postal  Teleg.  Cable  Co.  v. 
Bank  of  Palo  Alto,  48  C.  C.  A.  413,  109  Fed. 
369,         ■  54:  711 

s.  Mitigation;   Reduction. 

Effect  of  Wrong  Medical  Treatment,  see  su- 
pra, 308-310. 

Effect  of  Prior  Disease  or  Infirmity,  see  su- 
pra. 311-317. 

In  Breach  of  Promise  Suit,  see  Evidence, 
2118. 

Burden  of  Proving  Opportunity  to  Reduce, 
see  Evidence,  228. 

Evidence  in  Mitigation,  see  Evidence,  2118, 
2165,  2166. 

Demurrer  to  Answer  Pleading  Matter  in,  see 
Pleading,  602. 

In  Case  of  Aggravation  of  Injury,  see  Phy- 
sicians and  Surgeons,  56. 

See  also  supra,  127,  327. 

For  Editorial  Notes,  see  infra,  V.  §§  19,  22, 
27. 

655.  The  doing  of  any  act  which  prevents 
or  retards  the  recovery  of  a  person  who  has 


978 


DAMAGES,  III.  t,  u. 


been  injured  by  the  negligence  of  another  is 
not  of  itself  a  ground  for  reduction  of  dam- 
ages, unless  the  act  was  negligent.  Salla- 
day  V.  Dodgeville,  85  Wis.  318,  55  N.  W.  696, 

20:  541 

656.  The  fact  that  a  person  other  than  the 
■wrongdoer,  as  a  mere  gratuity,  pays  to  one 
negligently  injured  a  sum  of  money  equal  to 
the  amount  he  would  have  earned  had  he 
been  able  to  work  during  the  period  of  dis- 
ability, will  not  mitigate  the  damages  due 
by  the  wrongdoer  to  the  injured  party  for 
lost  time,  even  though  the  person  making 
the  payment  is  the  employer  of  the  injured 
party.  Nashville,  C.  &  St.  L.  R.  Co.  v.  Mil- 
ler,  120  Ga.  453,  47  S.  E.  959,  67:  87 

657.  A  newspaper  article  which  upon  its 
face  purports  to  be  derived  from  sources 
other  than  the  writer's  own  knowledge  need 
not  necessarily  state  the  sources  of  informa- 
tion, in  order  to  permit  the  publisher,  when 
sued  thereon,  to  allege  and  prove  mitigating 
circumstances  showing  that  he  acted  in  good 
faith  upon  apparently  reliable  information. 
Fenstermaker  v.  Tribune  Pub.  Co.  12  Utah, 
439,  13  Utah,  532.  43  Pac.  112,  45  Pac.  1097. 

35:  611 

658.  Slandei'ous  words  not  published, 
spoken  by  plaintiff  concerning  defendant  in 
a  slander  suit  of  which  defendant  was  igno- 
rant when  he  spoke  the  words  which  form 
the  basis  of  the  action,  cannot  be  considered 
by  the  jury  for  the  mitigation  of  even  puni- 
tive damages.  Gambrill  v.  Schooley,  95  Md. 
260,  52  Atl.  500,  63:  427 

059.  Mitigation  of  damages  for  fraud  in 
representing  the  title  of  mortgaged  property 
to  be  perfect,  on  the  faith  of  which  mort- 
gage bonds  were  purchased,  when  in  fact 
there  was  a  prior  mortgage  thereon,  cannot 
be  claimed  by  virtue  of  the  tender  of  a  dis- 
charge on  the  trial  of  the  action,  after  the 
expiration  of  a  long  time,  when  the  market 
for  the  bonds  mav  have  changed.  Nash  v. 
Minnesota  Title  Ins.  &  T.  Co.  163  Ma<?s.  574. 
40  N.  E.  1039,  28:  753 

660.  That  a  telephone  company  has  not 
the  means  to  supply  service  to  one  applying 
for  it  may  be  shown  in  mitigation  of  dam- 
ages for  refusal  to  comply  with  its  duty  in 
that  regard,  but  not  in  justification  thereof. 
Gwvnn  v.  Citizens'  Teleph.  Co.  69  S.  C.  434, 
48  S.  E.  460,  67:  111 

661.  Going  upon  a  railroad  track  without 
looking  and  listening,  even  after  a  train  has 
just  passed,  and  continuing  thereon  uncon- 
scious of  danger  until  overtaken  and  injured 
by  a  section  of  the  train  which  has  become 
detached  and  is  being  propelled  by  the  force 
of  gravitation,  is  negligence  which  must  be 
allowed  in  mitigation  of  damages,  even  if 
the  jury  think  it  was  not  the  proximate 
cause  of  the  accident.  Patton  v.  East  Ten- 
nessee, V.  &  G.  R.  Co.  89  Tenn.  370,  15  S.  W. 
019,  12:  184 
Provocation. 

See  also  supra,  75. 

662.  Words  of  provocation  may  be  consid- 
ered in  mitigation  of  punitive,  but  not  com- 
I>ensatorv.  damages.  Mahoning  Valley  R. 
Co.  v.  De  Pascale  (Ohio)  71  N.  E.  633, 

65:  860 


663.  Mere  provocation,  which  does  not 
amount  in  law  to  a  justification,  cannot  mit- 
igate actual  or  compensatory  damages  for 
assault  and  battery.  Goldsmith  v.  Joy.  61 
Vt.  488,  17  Atl.  1010,  4:   500 

664.  In  an  action  for  personal  tort,  the 
compensatory  damages  which  may  be  re- 
covered from  the  principal  for  the  'wrongful 
and  unlawful  act  of  its  agent  are  not  subject 
to  mitigation,  nor  is  the  liability  of  the 
principal  for  such  damages  def^ted,  by 
proof  that  the  act  which  caused  the  injury 
was  provoked  or  induced  by  abusive  lan- 
guage used  by  the  plaintiflF  to  such  agent. 
Mahoning  Valley  R.  Co.  v.  De  Pascals, 
(Ohio)  71  N.  E.  633,  65:  860 
Effect  of  insurance. 

Retrospective  Statute  as  to,  see  Statutes^ 

540. 
See  also  Parties,  17. 
For  Editorial  Notes,  see  infra,  V.  §  27. 

665.  The  fact  that  property  destroyed  by 
fire  set  by  a  railroad  engine  was  insured  does 
not  affect  the  owner's  right  to  recover  dam- 
ages from  the  railroad  company  under  » 
statute  making  the  company  liable  for  dam- 
ages thus  caused.  Peter  v.  Chicago  &  W.  M. 
R.  Co.  121  Mich.  324,  80  N.  W.  295,      46:  224 

t.  Aggravation. 

Effect  of  Wrong  Medical  Treatment,  see  su- 
pra, 308-310. 

Effect  of  Prior  Disease  or  Infirmity,  see  su- 
pra, 311-317. 

At  to  Preventing  Unnecessary  Amount,  see 
supra,  11-19. 

Effect  on  Right  of  Action  for  Death,  of  Ag- 
gravation of  Incurable  Disease,  see 
Death,  49. 

As  Bar  to  Recovery,  see  Negligence,  187,  188. 

Effect  of  Aggravating  Injury,  see  Physicians 
and  Surgeons,  56,  57. 

Instruction  as  to,  see  Trial,  767. 

See  also  supra,  327,  432. 

666.  A  plea  of  the  truth  in  an  action  for 
libel,  although  not  proved,  will  authorize  an 
aggravation  of  damages,  under  a  statute 
which  allows  both  the  truth  and  matter  in 
mitigation  to  be  pleaded,  only  when  the  plea 
is  not  made  in  good  faith,  with  an  expecta- 
tion of  proving  it.  Upton  v.  Hume,  24  Or. 
420,  33  Pac.  810,  21 :  493 

667.  An  unsustained  justification  in  an  ac- 
tion for  publication  of  libel  is  evidence  of 
malice  and  an  aggravation  of  the  wrong. 
Coflfin  V.   Brown.   04  Md.   190,   50   Atl.    567, 

.55:  732 

668.  It  is  not  a  ground  of  aggravation  of 
damages  in  an  action  for  breach  of  promise 
of  marriage,  that  the  answer  alleges  the  un- 
chaste or  bad  character  or  reputation  of 
plaintiff,  and  that  no  proof  is  offered  upon 
that  subject,  unless  such  allegations  are 
made  in  bad  faith.  Albertz  v.  Albertz.  78 
Wis.  72,  47  N.  W.  95,  10:  584 

u.  Apportionment. 

Where  Both  Parties  Are  Negligent,  see  Neg- 
ligence, 191,  291. 

Gr.9.  Negligently  sitting  within  the  bight 


DAMAGES,  IV.,  V. 


979 


of  a  hawser  which  is  subject  to  strain  will 
bring  one  within  the  admiralty  rule  of  ap- 
j)ortionniont  of  damages  in  case  both  parties 
are  in  fault,  where,  by  reason  of  the  negli- 
gence of  the  vessel,  the  strain  is  put  upon 
the  line  in  such  a  way  that  the  bitt  around 
which  it  runs  gives  way  and  he  is  thrown 
overboard  by  the  sweeping  forward  of  the 
line.  Steam  Dredge  No.  1,  67  C.  C.  A.  67, 
134  Fed.  161,  69:  293 


IV.  Assessment;  Treble  Damages. 

Right    to    Jury    Trial    on    Assessment,    see 

Jury,  9,  10. 
When    Double    Damages    Allowable    under 

Pleading,  see  Pleading,  108.     , 
See  also  supra,   51. 

670.  Where  treble  damages  are  allowed, 
the  proper  practice  is  for  the  jury  to  find 
such  damages  as  they  think  proper,  and  then 
for  the  court  to  enhance  the  amount  to  meet 
the  statutory  requirements.  Broschart  v. 
Tuttle,  59  Ck)nn.  1,  21  Atl.  925,  11:  33 


V.  Editorial  Notes, 
a.  General  principles. 

§  I.  Generally. 

General  rule  against  allowance  of  remote 
damages.     3:  587;*  6: 

230,* 

(Conflict  of  laws  as  to  measure  of  damages. 
56:  301. 

For  results  too  remote.     3:  587;*  6:  230.* 

Power  of  appellate  court  to  interfere  with 
verdict  for  excessive  dam- 
ages.   26:  384. 

Inadequacy  of  damages  as  ground  for  set- 
ting aside  verdict.    47:  33. 

Necessity  of  admitting  quantum  of  damages 
in  order  to  change  burden 
of  proof  and  right  to  open 
and  close.    61:  555. 

§  2.  Liquidated  damages;  penalty. 

When  liquidated.  6:551;*  10:826;*  13: 
671.* 

Set-off  of  unliquidated  damages  in  bank- 
ruptcy cases.     o5:  37. 

Liquidated  damages  and  penalty  distin- 
guished.    13:  671.* 

Penalty  as  limit  of  liability  on  statutory 
bond.     55:  381. 

§  3.  Enhanced  damages;  duty  to  minimize. 

Effect  of  previous  disease  of  person  injured 
on  liability  for  causijig  the 
injuries.    "I6:  268. 
Causing     death     of     diseased     person. 

16:  269. 
Limitations  and  exceptions  to  general 
rule.     16:  269. 

Duty  to   minimize.     1:76;*   6:454.* 

b.  Punitive  or  exemplary. 

§  4.  Generally. 

For  tort,  generally.     9:  445;*  13:  600.* 

For    negligence,    generally.      11:43,*    690;* 

17:  72.* 
In   cases   other   than    for  personal    injuries. 

13:  600.* 


Carrier's  liability  for.     1:  682;*  13:  600.* 
Liability    for,   of    newspaper   proprietor   for 
libel  puhli.siu'd  without  his 
knowledge  or  consent.   26: 
779. 

c.  Compensatory  damages. 

I.  Breach  of  contracts. 

§  5.  Generally. 

Loss  of  Profits  as  an  Element  of  Damages 
for,  see  infra,  V.  §§  21- 
251/2. 

General  rules.    2:  766.* 

General  rule  that  damages  recoverable  must 
be  the  natural  and  proxi- 
mate cons('(iuoiice  0  f 
breach.     3:  587.* 

Special  circumstances  known  to  both  par- 
ties.    3:  589.* 

Damages  recoverable  by  building  contractor 
on  breach  of  contract.  5: 
275.* 

Contract  to  convey.    4 :  670.* 

On  breach  by  seller.    3:  589.* 

On  breach  by  purchaser.    3:  589.* 

For  breach  of  implied  warranty  on  contract 
of  sale.    18:  385. 

Refusal  of  benefit  society  to  levy  assess- 
ment.    2:  780.* 

Dishonor  of  check.     15:  134. 

Breach  of  promise  of  marriage.     10:  585.* 
Seduction  as  an  element  of.     10:  585. 

Carrier's  failure  to  transport  goods.  9: 
451.* 

Carrier's  default  or  delay  as  to  transporta- 
tion of  passenger.    32:  545. 

For  pledgee's  conversion  of  property  by  in- 
valid sale.    43:768. 

Measure  of  recovery  for  damages  to  goods 
received  for  cold  storage. 
52:  108. 

For  breach  of  contract  to  loan  or  advance 
money.     37:  233. 

Contract  to  deliver  goods.     1:  656.* 

§  6.  For  breach  of  covenant. 

Covenant  against  encumbrance.     3:  791.* 
Nominal  damages.     3:  792.* 

Voluntary  covenant.    13:  723.* 

Implied  warranty.     18:  385. 

Recoupment  of  damages  for  breach  of  war- 
ranty.    1:  339.* 

Covenant  in  grant  of  water  power.    67:  405. 

§  7.  For  breach  of  contract  of  employment. 

Wrongful  discharge  from  service.  3:  137;* 
5:  759.* 

Contract  of  permanent  eniplovment.  35: 
516. 

Where  contract  for  services  terminated  by 
insolvency  and  dissolution 
of  corporation.     09:  12(5. 

§  8.  For  breach  of  contract  of  sale  of  article 
having  no  market  price. 

Breach  of  vendor.    57:  193. 

General  rules  as  to  recovery.    57:  19.3. 
Measure  of  damages.     57:  195. 

In  case  of  total  absence  of  market. 

57:  195. 
When    goods    were    obtainable    at 
other  markets.     57:  197. 


980 


DAMAGES,  V.  (Ed.  Notes  ) 


When    goods    were    obtainable    at 

other  times.     57:  198. 
When   purchased    for    special    pur- 
pose.    57:  198. 
Duty  of  vendee  to  avoid  or  reduce 
injury.     57:  202. 
Breach  by  vendee.     57 :  204. 

Eule  in  the  entire  absence  of  a  market. 

57 :  204. 
Rule  where  neighboring  market  may  be 
reached.     57:  205. 
Determination  as  to  existence  or  condition 

of  market.    57 :  205. 
Damages  measured  by  profits  lost.    57:  206. 
§  g.  Telegraph  cases. 
Law  governing.     63:  532. 
For  neglect  of  dutv  to  deliver  telegram.     7: 

583;*   9:  669;*   10:  515.* 
For  nondelivery  of  telegram  sent  after  office 

hours.     53:  738. 
Injury  to  feelings  caused  by  neglect  of  duty 
to  transmit  or  deliver.    2: 
767;*  9:  669;*  13:  859.* 
Loss  of  profits  as  an  element.    53:  91. 

2.  Torts  and  negligence. 

§  ID.  Generally. 

Loss  of  Profits  as  an  Element  of  Damages 
for,  see  infra,  V.  §  24. 

Allowance  of  Punitive  or  Exemplary  Dam- 
ages, for,  see  supra,  V.  §  4. 

Law  governing  measure  of  damages  for. 
56:  312. 

Rule  of  damages  for  negligent  acts  or  omis- 
sions.     11:690.* 

For  withholding  or  destroying  evidence  to 
which  adversary  is  enti- 
tled.   .34:  589. 

Measure  of  damages  for  misconduct  of  em- 
plovee  toward  passenger. 
3:  735.* 

For  wrongful  ejection  from  car.  1:667;* 
3:  733.* 

For  libel  or  slander  by  wife.    30:  529. 

For  malicious  prosecution.     4:  255.* 

For  breach  of  duty  by  directors.     55:  V74. 

§  II.  Bodily  injuries. 

Ah  to  Punitive  or  Exemplary  Damages,  see 
supra,  V.  §  4. 

Law  governing  measure  of  damages  for. 
56:  312. 

Continuing  effect  of  injury.     11:  45.* 

Pain  and  suffering.    11:  45.* 

Value  of  time  lost.     11:  45.* 

Expenses  of  nursing  and  medical  attend- 
ance.    11 :  46.* 

Damages  probable  in  the  future.     11:  40.* 

Impaired  capacitv  for  work  or  business.     11: 
■^46.* 

Considering  occupation  of  plaintiff".     11:  46.* 

.\ward  of  damages  within  discr<>tion  of  jurv. 
11:  46.' 

When  verdict  set  aside  as  excessive.     11:  47.* 

Setting   aside   for    inadeijuacy.      11:50.* 

(omix'nsation  for  pain.     12:  6!)S.'" 

IMental  suffering  as  an  element.     12:  698.* 

Remote  and  sentimental  consideration.  12: 
(;!)9.* 

Value  nf  time  lost :  expenses  of  nursing  and 
jnedical  attendance.  10: 
794;*   11:  43.* 


Recovery  of  damages  for  miscarriage.     32: 

142. 

Measure  of  damages  recoverable  from  land- 

,  lord   for  injury  to  tenant 

from    defect    in   premises. 

34:  831. 

Excessive  verdicts  in  suits  for  damages  for 

personal  injuries.     i4:  677. 

Efi'ect  of  previous  disease  of  person  injured. 

16:  268. 
Extent  of  trespasser's  liability  for,  as  a  con- 
sequential injury.    53:  631. 
§  12.  Death. 
Generally.     17:  71. 
Aggravation  of  existing  disease  allowed  for, 

in  damages.    17:  71. 
Pecuniary  loss  only  recoverable.     17:  71. 
Pain  and  suffering.     17:  72. 
Exemplary   and   punitive   damages.     17:  72. 
State  statutes  construed.     17:  73. 
Contributive  causes  of  death.     17:  76. 
Action  for  death  of  relative.    17 :  76. 
Of  husband.     17:  76. 
For  death  of  wife.     17:77. 
For  death  of  cousin.     17 :  77. 
Action   by   parent   for    deatl»  of   child. 
17:  77. 
Loss  of  child's  services.     17:  79. 
For  death  from  sale  of  intoxicating  liquor. 

3:  327.* 
Mental  anguish  as  an  element.     13:  860.* 
Effect  of  benefit  from  other  source  to  rniti* 

gate  damages.     67:  91. 
Interest  on  sum  allowed  as  damages.     18: 

449. 
Law    governing    measure    of    damages    for. 

15:  585;  56:  312. 
Differences  as  to  amount  of  recovery  as  af- 
fecting   action    for    death 
based    on    statute    of   an- 
other state.     56:  205. 
§  13.  Injury  to  personal  property;   conver- 
sion. 
Measure  of  damages  for  injury  to  personal 
property,       generally.     6: 
454.* 
Extent  of  liability  of  municipality  for  prop- 
ertv    destroyed    bv    mob. 
24:"  595. 
For  conversion.     1:  306;*  2:  449.* 

Loss  of  profits  as  element  of.    52:  51. 
§  14.  Injury  to,  or  detention  of,  real  prop- 
erty. 
Cost  of  restoration  as  measure  of.     17:  426. 
For  cutting  off  access  of  riparian  owner  to 
navigable         waters.     15: 
618. 
To   abutting   owner   for   laying  street   rail- 
way   near   side   of   street. 
43:"  560. 
Measure  of  damages  for  breach  of  duty  by 
municipality   with  respect 
to  drainage.     61:  7)2. 
For  removal  of  lateral  support.     68:  701. 
Prospective.      68:  701. 
Diminished  market  value.     68:  703. 
Value  of  soil  lost.     68:  705. 
Restoration   to   oriufinal   condition.     68: 

700. 
Repairs.  68:  706. 
Cost  of  retaining  wall.     68:  706. 


DAMAGES,  Y.  (Ed.  Notes.) 


981 


Adapting  property   to  new   level.     68: 

707. 
Collateral  direct  injuries.     68:  707. 
For  injury  to,  or  destruction  of,  trees.     15: 
612;  19:  653. 
Effect   of   the   cutting   upon    the    title. 

19:  653. 
Replevin.     19:  654. 
Trover.     19:  654. 
Trespass  de   bonis.     19:  656. 
Trespass  quare  clausum.     19:  656. 
Special  and  statutory  actions.     19:  657. 
Injury  to  fruit  trees.     19:  658. 
Injury  to  shade  trees.     19:  658. 
Injury  by  fire.     19:  659. 
Loss  of  profits  as  element  of  damages   for 

trespass.     52:  4?. 
Extent  of  liability  of  municipality  ^for  prop- 
erty   destroyed    by    mob. 
24:' 595. 
§  15.  —  Extent  of  trespasser's  liability  for 

consequential  injuries. 
In  general.    53:  626. 

Consequential  injuries  to  property.    53:  627. 
In  general.     53:  627. 
From  removal  of  fence.     53:  629. 
In  general.     53:  629. 
Loss  of  stock.     53:  629. 
Injuries   to   crops.      53:  630. 
Caused  by  third  persons.    53:  631. 
Consequential   injuries   to   the   person.     53: 
"631. 
In  general;  health.     53:  631. 
Mental  suffering.    53:  632. 
Fright  and  its  consequences.     53:  633. 
Injury  to  reputation.     53:  634. 

3.  Nuisance. 

§  16.  Generally. 

Rule  as  to  damages  from.     13:  322.* 

For  pollution  of  stream.     7:  457.* 

4.  Condemnation  or  depreciation  in  value  by 
eminent  domain. 

§  17.  Generally. 

Measure  of  damages  in  condemnation  of 
land  for  railroad  pur- 
poses, generally.  2:  219;* 
7:  409;*  8:  330;*  9:  299.* 

Considering  market  value.    3:  83;*  11:  604;* 
12:  611.* 
Market  value  defined.     12:  610.* 

Inconvenience  caused.    2:  217.* 

Damages  reasonably  anticipated.    2:  218.* 

Special  damages.     2:  218.* 

Injury  to  farm  or  tract  as  a  whole.  2:  218:* 
3:  84;*  9:  298.-' 

What  injuri«8  not  considered.     2:  218.* 

Value  of  land  for  its  uses  and  purposes.  2: 
219.* 

Value  of  tract  cut  off.     2:219.* 

Amount  of  damages  recoverable  by  tenant 
and  reversioner.  21:  217, 
223. 

Considering  diminution  in  value  from  opera- 
•    tion  of  trains.     9:  298.* 

Benefits  considered.     7:  289.* 

As  affected  by  loss  of  profits.     .">1 :  320. 

Depreciation  of  noiffliborinu  property.  8: 
330.* 


Condemnation  of  the  fee  of.  land  over  which 
there  is  an  existing  h  gh- 
way.     15:  413. 

Injury  to  easements  of  abutting  owners. 
14:  381. 

Taking  of  water.     58:  253. 

Pollution  of  water  as  an  element  of  dam- 
ages for  taking  railroad 
right  of  way.    47:  782. 

Property  taken  for  purposes  of  canal.  61: 
841. 

Conclusiveness  of  testimony  of  experts  as  to 
value  and  damages  in  emi- 
nent domain  proceedings. 
42:  767. 

Allowance  of  interest  on  value  of  property 
destroyed  from  negligent 
construction  of  railroads, 
canals,  etc.     18:  4.54. 

§   18.  Value  of  improvement  made  by  one 
taking  property. 

When  improvement  is  consented  to  by  own- 
er, mortgagor,  etc.  16: 
805. 

When  construction  of  improvement  is  a  tres- 
pass.    16:  806. 

Effect  of  good  faith  or  mistake  of  tres- 
passer.    16:  807. 

§  19.  Effect  of  preserving  to  owner  an  es- 
tate, rights,  or  easement. 

Mitigation    of    damages     in    condemnation 
cases    by   preserving.    26: 
751. 
Discretion  to  take  less  than  jniglit   be 

taken.     26:  751. 
Temporary  occupation.     20:  753. 
Easements  or  improvements  secured  to 

the    landowner.      20:  753. 
Effect    of    filinsr    ph^n    and    description. 

26:  758. 
Payment   to    be   made    in    numey.      26: 
758. 

5.  Injunction  cases. 

§  20.  Generally. 

Damages  in  lieu  of  injunction.    20:  752. 

Damages  recoverable  in  action  on  injunc- 
tion bond.     13:  312. 

Penalty  as  limit  of  liability  on  bond.  55: 
389. 

Loss  of  profits  as  element  of  damages  for 
wrongful  injunction.  52: 
58. 

6.  Loss  of  profits   as  element  of  damages. 

§21.  Generally. 

On    abandonment     of     contract    for    other 

party's  default.    30:  57. 
§  22.  For  breach  of  contract. 
General    rules    applicable    to    breach   of   all 
kinds  of  contracts.    53:  34. 
Allowance  of  profits  lost  generally.    53: 

34. 
Right  of  action  for.     53:  36. 
Effect  of  remoteness.    53:  37. 
Effect  of  speculativeness  or  contingency. 

53:  .38. 
Effect   of   uncertainty   in   amount.     53: 
40. 


983 


DAMAGES,  V.  (Ed.  Notes.) 


Kequirement.  that   profits   should   have  | 
been  within  contemplation 
of  parties.    53:  41. 
Distinction  between  direct  and  collateral 

profits.  53:  43. 
Loss  of   subcontracts    and  special   bar- 
gains.   53:  45. 
General    effect   of    preventing   perform- 
ance.    53:  45. 
What   amounts   to   prevention   of   per- 
formance.   53:  47. 
Contracts  for  services.     53:  48. 

Breach  by  contractor  or  employee.     53: 
48. 
General  rules.     53:  48. 
Particular  contracts.    53:  49. 

For  construction  or  repair  of 
ways,  bridges,  public 
works,  etc.  53:  49. 
For  construction  or  repair  of 
buildings,  vessels,  etc.  53: 
50. 
Logging  and  lumber  contracts 

53:  52. 
For   general    service    or   labor. 

53:  53. 
For  services  as  agent  or  attor- 
ney.    53:  57. 
Breach  by  employer  or  owner.    53:  57. 
General   rules.     53:  57. 
Effect   of   preventing   performance. 

53:  59. 
What  constitutes  prevention  of  per- 
formance.   53:  61. 
Particular  contracts.     53:  62. 

For  railway  construction.     53: 

62. 
Elevator  and  storage  contracts. 

53:  65. 
For  construction  of  buildings 

53:  66. 
For  construction  or   repair  of 
bridges,  roads,  or  streets. 
53:  68. 
For  grading,  excavating,  dredg- 
ing, etc.     53:  70. 
Logging  and  lumber  contracts. 

53:  71. 
For  mechanical  work.    53:  73. 
For  services  or  labor  generally. 

53:  74. 
For  real  estate,  insurance,  and 

loan  agencies.     53:  76. 
Ckjntracts   with    salesmen    and 
for     other     agencies.     53: 
77. 
Between   attornev   and   client. 

53:  79. 
For     compensation     based     on 
share  of  profits.     53:  80. 
Partnership  contracts.    53:  81. 
Contracts  for  sale  or  purchase    53:  83. 
Contracts  for  carriage     53:  83. 
Breach  by  shipper.     53:  83. 
Breach  by  carrier.     53:  84. 

Measure     of     damages     genr^rally. 

53:  84. 
Remoteness,   eontitigencv,    and    un- 
certaintv.  anrl  their  effect. 
53:  86. 
Notice  of  sale  and  its  effect.     53: 
88. 


Notice  of  use  and  its    effect.     53: 
90. 
Contracts    for    transmission    of    telegrams. 
53:  91. 
Rule  as   to  message   in   cipher,   or   not 
showing  meaning.     53:  91. 
Rule  when  message  is  in  plain  terms. 
53:  92. 
The  general  right   to   recover.    53: 

92. 
Remoteness,  contingency,   and  un- 
certaintv,  and  their  effect. 
53:  94. 
Rule  when  altered  message  is  sent.    53: 
95. 
Contracts  with  relation  to  railroad  and  sta- 
tion construction.     53:  96. 
Agreements  not  to  compete.     53:  97. 
Leases   and   contracts   and   covenants   with 
reference  to.    53:  97. 
General  rules.    53:  97. 
Breach  of  covenant  to  lease  or  renew. 

53:  98. 
Breach  of  covenant  to  give  possession. 

53:  99. 
Breach  of  covenant  for  peaceable  pos- 
session.   53:  100. 
Breach  of  covenant  to  repair  or  rebuild. 

53:  101. 
Eviction.     53:  102. 
Tenancy  on  shares.     53:  104. 
Breaches  by  tenant.    53:  105. 
The  charter  or  rental  of  vessels.     53:  105. 
Miscellaneous  contracts.     53:  106. 
Duty   to   prevent  or  reduce   damages.     53: 

108. 
Deduction  for   release   from   responsibility. 

53:  110. 
Effect  of  illegality  in  contract.    53:  111. 
§  23.  Loss  of  profits  of  sale  or  purchase. 
Breach  by  vendor.     52:  209. 
General  rules.     52:  209. 
The    rule  as    to  special  circumstances. 
52:  211. 
Generally.    52:  211. 
As  applied  to  notice  or  knowledge 
of  sale  or  purpose  to   re- 
sell.    52:  212. 
What  notice  or  knowledge  of   re- 
sale sufficient.    52:  215. 
As  applied  to  notice  or  knowledge 

of  special  use.    52:  217. 
What   notice  or  knowledge   of   use 
sufficient.     52:  218. 
The  rule  as  to  the  absence  of  a  market. 
52:  219. 
When  goods  are  practically  unob- 
tainable.   52:219." 
When  a  substitute  may  be  obtained. 

52:  221. 
When   other   markets   may   be   re- 
sorted to.     52:  222. 
The  rule  as  to  remoteness,  contingency, 
and    uncertaintv.     52:  223. 
Generally.     52:  223. 
As  applied  to  cases  of  purchase  to 

resell.     52;  224. 
As  applied  to  cases  of  purchase  for 

manufacture.     52:  226. 
As  applied  to  cases  of  purchase  for 
use.    52:  227. 


DAMAGES,  V.  (Ed.  Notes.) 


The  rule  as  to   sale  of  articles  to  be 
manufactured.     52:  230. 
Application  of  general  rules.     52: 

230. 
As  applied  to  special  circumstances. 

52:  230. 
As  applied  to   remoteness,  contin- 
gency,    and     uncertainty. 
52:  231. 
Breach  of  warranty.     52:  233. 
General  rules.     52:  233. 
Purchase  and  warranty  for  special 

purpose.    52:  234. 
Purchase  to  resell.     52:  237. 
Sale    of    a    business,   goodwill,    or    ex- 
clusive right.    52:  238. 
Breach  of  contract  to  convey  real  es- 
tate.   52 :  240.^ , 
General  statement  as  to.    52:  240. 
When  vendor  acts  in   good   faith. 

52:  241. 
When  vendor  acts  mala  fides.     52: 
242. 
Breach  by  vendee.     52:  244. 

Alternative  rights  of  recovery.    52:  244. 
When  title  does  not  pass.     52:  244. 
Measure    of    damages    generally.    52: 

246. 
Effect  of  notice  of  refusal  to  perform. 

52:  248. 
Kesale  by  vendor.     52:  249. 

Right  to  make,  and  effect  of.     52: 

249. 
Prerequisites    to    validity    of,     52: 
251. 
Effect  of  absence  of  market,  in  which 

to  resell.    52:252. 
The  rule  as  to  purchase  of  articles  to 
be  manufactured.    52:  253. 
Right  to  recover  profits.    52:  253. 
The  measure  of  damages.     52:  254. 
Resale.     52:  256. 
Remoteness,    contingency,    uncertainty. 

52:  257. 
Breach  of  contract  to  purchase  real  es- 
tate.    52:  258. 
Duty  to  try  to  prevent  or  reduce  damages. 

52:259. 
Effect  of  illegality.    52:  260. 
§  24.  For  tort. 
■General  rules.     52:  33. 
Personal  injuries.    52:  36. 

General  rules  as  to.     52:  36. 

Profits  lost  as  an  element  of  damages. 

52:  37. 
Profits  lost  as  evidence.     52:  38. 
Trespass  against  the  person.    52:  42. 
Trespass  against  property.     52:  42, 
The  general  rule.  52:  42. 
Profits  lost  as  an  element  of  damages. 

52:  43. 
Profits  lost  as  evidence.     52:  45. 
Negligence.     52:  46. 

Scope  and  general  rules.     52:  46. 
Failure  to  perform  and  improper  per- 
formance  of  legal  duties. 
52:  46. 
Performance    of    acts    in    violation  of 
legal  duty.    52:47. 
Obstruction  of  highways    and    wa- 
terways, 52:  47. 


Maintenance     of     nuisances     and 
other    breaches    of    duty. 
52:  49. 
Conversion.    52:  51. 

General  rules  as  to.     52:  51. 
Without  judicial  process.     52:  52. 
Under  judicial  process.     52:  54. 

By  seizure  under  wrongful  attach- 
ment.   52:  54. 
By  seizure  under  wrongful  replev- 
in.    52:  56. 
By   seizure  under  wrongful  execu- 
tion    or     other     process. 
52:  57. 
Wrongful  injunction.    52:  58. 
Fraud  and  false  representations.    52:  59. 
Marine  torts.    52:  61. 

Future  and  uncertain  profits.     52:  61. 
Profits  of  voyage  or  charter  party   in 

hand.     52:  62. 
How  ascertained  and  computed.    52:  64. 
Infringement    of    patents,    copyrights,    and 

trademarks.    52:  66. 
Effect  of  illegality  of  business  giving  rise 

to  the  profits.     52:  66. 
§   25.   For  infringements   of   patents,   copy 

rights,  or  trademarks. 
The   concurrent    remedies    in    patent    cases. 

51:  801. 
Actions  in  equity.    51:  802. 
Actions  at  law.    51:  802. 

Statement  as  to  existence  of  the  rem- 
edy.    51 :  802. 
Measure  of  damages  generally.    51 :  803. 
As  affected  by   mode  of  enjoyment  of 
patent.     51:  804. 
Different    rules    with    relation    to. 

51:  804. 
By  granting  licenses.    51 :  804. 

Application   of   the   rule.     51: 

804. 
What    sufficient    to   constitute 
an     established     fee.     51: 
805. 
Right  to  base  fee   on  utility. 
51:  808. 
By    holding    close    monopoly.     51: 
809. 
Application   of   the   rule.     51: 

809. 
Establishment  of  loss  of  sales. 

51:  810. 
Establishment  of  reduction  of 

price.    51:  811. 
Consideration  of  profits  of  the 

infringer.     51:  813. 
When  profits  of  infringer  may 
be  made  the  criterion.    51: 
814. 
Separation   of    profits   due   to 
patent.     51:  815. 
The  rule  in  equity  under  statutes  authoriz- 
ing damages.    51:817. 
Scope  of  subdivision.     51 :  817. 
The  act  of  Congress  of  1870.    51:  817. 
Estimation  of  damages  under.    51:  818. 
Separation  of  profits  and  damages  due 

to  patent.     51:  820. 
The  English  act  of  1858.     51:  821. 
Effect  of  recovery.     51:  821. 
The  rule  in  copyright  cases.    51:  822. 
The  rule  in  trademark  cases.    51:  823. 


984 


DAMNUM  ABSQUE  INJURIA  ;    DAMS. 


§  25^.  In  eminent  domain  cases. 

Generally.    51 :  320. 

Early  rule  confining  damages  to  the  actual 

taking.     51 :  320. 
Rules  under  provisions  for  compensation  for 
property  taken  or  injured. 
51:  321. 
General   statement  of.     51:  321. 
Where  property  is  taken,  in  whole   or 
in  part,  for  railway  pur- 
poses.   51:  321. 
Where   tangible  property  is   taken   for 
other    than    railway    pur- 
poses.    51:  324. 
Where    property    taken    consists    of    a 
franchise  or  privilege.    51 : 
325. 
Where  property  is  injured,  but  not  tak- 
en.    51:326. 
Loss  of  profits  from  suspension  of  business 
while  moving.    51:  330. 

7.  Mental  anguish. 

§  26.  Generally. 

Mental  anguish  as  element  of  damages,  gen- 
erally.    2:  767;*  13:  859.* 

In  telegraph  cases.    9:  669;*  13:  859.* 

As  element  of  damages  for  trespass.  53: 
632. 

Conflict  of  laws  as  to  right  to  recover  for 
mental  anguish  for  non- 
delivery of  telegram.  63: 
532. 

From  personal  injury.     8:  765.* 

From  death.     13:  860.* 

From  death  caused  by  sale  of  intoxicating 
liquor.     3:  327.* 

From  ejection  from  car.     1:  667.* 

8.  Mitigation;  reduction. 

§  27.  Generally. 

Jn  Condemnation  Proceedings,  see  supra,  V. 

§  19. 
Of  damages  for  breach  of  promise  of  mar- 
riage.    26:  432. 
Of  damages  for  personal  injury  by, fact  that 
injured     person     has     re- 
ceived   from    some    source 
other  than  the  wrongdoer 
money  because  of  the  in- 
jury.   67 :  87. 
Jn  actions  by  injured  person.    67:  87. 
Insurance  monev.     67:  87. 
Wages.     67:89.' 
Other  gratuities.     67:  90. 
In  actions  for  wrongful  death.    67:  91. 
Property    received    from    deceased. 

67:  91. 
Insurance  money.     67:  92. 
Pensions     and     subscriptions.     67 : 

94. 
Pvcmarriage.     67:95. 
Payments  made  at  instance    of    wrong- 
doer.    67:  95. 
Duly  of  vendee  to  avoid  or  reduce  injury  for 
breach  of  contract   of  sale 
of  article  having  no  mar- 
ket price.     .")'7 :  202. 


9.  Interest. 

§  28.  Generally. 

Right  to  interest  on  unliquidated  demands. 
4:  566.* 

Interest  on  sum  allowed  as  damages.  18: 
449. 

Governing  law  with  respect  to  interest  as 
damages.     56:  303;   62:37. 

Interest  on  amount  of  damages  for  negligent 
infliction  of  personal  in- 
jury.    14:  548;   18:449. 


DAMNUM  ABSQUE  INJURIA. 

Editorial  Notes. 

As  cause  of  action.     6:  573.* 

Depreciation  in  A-alue  of  property  of  one 
proprietor  by  lawful  use 
of  property  of  adjacent 
proprietor. '  8 :  787.* 


DAMS. 

Action  of  Tort  for  Appropriation  of  Water 
from  Resen'oir  Created  by,  see  Ac- 
tion or  Suit,  66. 

Overflow  of,  as  Adverse  Possession,  see  Ad- 
verse Possession,  48. 

Effect  of  Raising  of,  on  Boundary  Line, 
see   Boundaries,  38. 

As  to  Abutment  of  Bridge  Resting  upon, 
see  Bridges,  20. 

Maintenance  of,  in  Canal,  see  Canals,  10, 
11. 

What  Excuses  Failure  to  Repair,  see  Con- 
tracts, 656,  662. 

Covenant  as  to,  see  Covenant,  2,  15. 

Damages  for  Diversion  of  Water  from  Pond 
Created  bj%  see  Damages,  430. 

Servitude  to  repair,  see  Easements,  43. 

Easements  in,  see  Easements,  68,  70. 

Destruction  of,  as  a  Taking  of  Property, 
see  Eminent  Domain,  247. 

Flooding  of  Land  by,  as  a  Taking  of  Prop- 
erty,  see  Eminent  Domain,  251. 

Construction  of,  as  a  Taking  of  Property, 
see  Eminent  Domain,  256,  258,  353. 

Consequential  Damage  to,  see  Eminent  Do- 
main, 349. 

Equity  Jurisdiction  as  to  Sluice  in,  see 
Equity,  19. 

p]stoppel  to  Prevent  Destruction  of,  see 
Estoppel,  83. 

Estoppel  to  Object  to  Continuation  of,  see 
Estoppel,  182. 

Burden  of  Proof  as  to  Injury  to,  see  Evi- 
dence, 234. 

Evidence  to  Rebut  Malice  in  Attempted 
Destruction  of,  see  Evidence,  1808. 

.\s  Highway,  see  Highways,  293. 

Indictment  for  Attempting  to  Destroy,  see 
Indictment,  etc.,  .30. 

Compelling  Removal  of,  see  Injunction,  54. 

.Acquittal  of  Charge  of  Nuisance  as  to,  see 
Judgment,  226. 


DAMS. 


985 


Jurisdiction  as  to  Nuisance  by,  see  Justice 

of  the  Peace,  18. 
As  Xuisances,  see  Nuisances,  119,   144. 
Tax   on,   see   Taxes,    113,   348,   349. 
In  Floatable  Stream,  see  Waters,  44-54. 
Sluiceway    in,    for    Passage    of    Logs,    see 

Waters,  51-54. 
In  Drainage  Ditch,  see  Waters,  399. 
Prescriptive  Right  as  to,  see  Waters,  509- 

513. 

Right  to  build  or  maintain. 

Reservation   of  Right   to  Build,   see  Deeds, 

94-98. 
Revocation     of    License    to     Construct    or 

Use,  see  License,  14,  15. 
See  also  infra,  12;  Waters,  267,^80,  282. 

1.  A  dam  to  protect  land,  bui!ft  by  au- 
thority of  the  legislature  in  the  former 
bed  of  a  river  which  now  serves  only  as 
a  waste  way  during  high  waters,  the  new 
channel  untouched  by  the  dam  being  at 
the  time  a  good  and  sufficient  outlet  at 
all  ordinary  high  stages  of  water,  is  a  law- 
ful public  improvement.  Payne  v.  Kan- 
sas City,  St.  J.  &  C.  B.  R.  Co.  112  Mo.  6, 
20   S.   W.   322,  17:  628 

2.  A  person  engaged  in  floating  logs  down 
a  stream  and  manufacturing  them  into 
lumber  at  his  mills  on  the  stream  may 
maintain  dams  and  booms  for  the  pur- 
pose of  obtaining  and  securing  his  own 
logs,  although  it  may  result  in  arresting 
the  whole  mass  of  logs  floating  on  the 
stream,  if  the  obstruction  to  the  use  of 
the  stream  by  others  is  not  unreasonable. 
Nester  v.  Diamond  Match  Co.  44  C.  C.  A. 
606,  105  Fed.  567,  52:  950 

3.  Tlie  condemnation  of  the  right  to 
maintain  a  dam  does  not  give  any  right 
Avhich  is  not  enjoyed  by  riparian  owners 
generally,  as  against  an  upper  landowner 
to  whom  no  damages  were  awarded,  pre- 
sumably because  it  was  found  that  the 
back  water  from  the  dam  would  not  over- 
flow his  land.  Gehlen  v.  Knorr,  101  Iowa, 
700,  70  N.  W.  757,  36:  697 

4.  In  Massachusetts  the  superior  court, 
which  is  a  court  of  general  jurisdiction, 
is  competent  to  decide  for  itself  whether  or 
not  it  has  been  properly  addressed  to  per- 
mit it  to  act,  when  there  is  conferred  upon 
it  by  statute  jurisdiction  in  regard  to  special 
proceedings  for  the  erection  of  a  dam,  and 
it  is  provided  that  action  is  to  be  taken 
only  upon  petition  of  twenty  proprietors 
of  certain  designated  lands;  and,  if  the 
legality  of  the  dam  is  subsequently^  ques- 
tioned by  one  indicted  for  attempting  to 
destroy  it,  the  fact  tliat  the  court  took  ac- 
tion shows  that  it  had  decided  that  the  pro- 
ceedings were  properly  initiated,  and  evi- 
dence that  a  petition  was  in  fact  signed  and 
presented  by  twenty  proprietors  is  un- 
necessary,— especially  in  the  absence  of  evi- 
dence to  controvert  that  fact.  Com.  v. 
Tolman,  149  Mass.  229,  21  N.  E.  377,     3:  747 

5.  A  statute  giving  the  trustees  of  a  pub- 
lic canal  power  to  raise  the  water  in  a 
river  to  a  certain  height  by  means  of  a 
dam,  and  providing  that  in  constructing 
the    canal    or    developing    the    dam    it    be- 


comes necessary  to  use  private  property,  the 
board  "shall  have  a  right  to  acquire  such 
right  of  way"  in  the  manner  now  provided 
by  law,  requires  the  settlement  of  damages 
for  flooding  lands  by  the  dam  under  the 
eminent  domain  law,  and  not  by  suit  for 
nuisance.  Leitzsey  v.  Columbia  Water  Pow- 
er Co.  47  S.  C.  464,  25  S.  E.  744,  34:  215 

6.  Failure  to  object  to  the  raising  of  wa- 
ter along  abutting  lands  by  a  dam  across  a 
river  constitutes  permission  to  do  so  with- 
in the  provision  of  a  statute  that  in  case 
any  person  permits  entry  upon  his  land  for 
the  construction  of  a  public  improvement 
without  previous  compensation  he  shall  have 
a  right  to  petition  for  the  assessment  of 
his  damages,  so  that  such  remedy  is  ex- 
clusive. Id. 

7.  The  grant  of  a  right  to  flood  a  part  of 
a  farm  by  the  erection  of  a  dam  will  pre- 
clude the  maintenance  of  an  action  for  in- 
juries caused  by  the  dam  to  the  remaining 
portion.  Nunamaker  v.  Columbia  Water 
Power  Oo.  47  S.  C.  485,  25  S.  E.  751, 

34:  222 
Right  to  water  power  created  by. 
Liability    for   Depriving,   of   Water   Power^ 
see  Waters,  245. 

8.  Xo  right  to  water  power  created  by 
elevating  the  dam,  beyond  his  proportionate 
share,  remains  in  the  owner  of  a  dam  who, 
after  reserving  a  certain  number  of  square 
inches  of  water,  sells  the  remaining  ca- 
pacity of  the  dam,  although  his  conveyances 
are  of  a  certain  number  of  inches  at  the 
then  height  of  the  dam,  "or  water  suf- 
ficient under  any  other  head  to  produce  the 
same  power,"  where  he  exacts  covenants 
from  the  grantees  for  the  maintenance  of 
the  dam,  and  the  additional  height  is  add- 
ed by  proportionate  assessments  upon  all 
the  water  rights.  Janesville  Cotton  Mills  v. 
Ford,  82  Wis.  416,  52  N.  W.  764,  17:  564 
Diverting  surplus  waters  of. 

Injunction    against   Diverting  Water   from^ 

see  Injunction,  29. 
See  also  Waters,  244,  251. 

9.  Surplus  water  of  a  dam  lawfully  made 
in  a  river  to  supply  a  canal  past  rapids  in 
aid  of  navigation,  although  under  a  statute 
declaring  that  the  water  power  created 
should  belong  to  the  state,  cannot  be  di- 
verted from  its  natural  channel  to  the 
detriment  of  the  lower  riparian  proprietors, 
by  the  state  or  its  grantees,  through  the 
canal  and  sluiceways  therefrom,  for  the 
operation  of  mills  on  the  canal  bank.  Pat- 
ten Paper  Co.  v.  Kaukauna  Water-Power 
Co.  90  Wis.  370,  61  N.  W.  1121,  28:  44S 
[From  a  subsequent  decision  of  the  lower 
court  in  compliance  with  the  mandate  in 
this  case  a  second  appeal  was  dismissed  (9? 
Wis.  283)  but  this  judgment  of  the  state 
court  was  reversed  by  the  Supreme  Court 
of  the  United  States  in  Green  Bay  &  Mis- 
sissippi Canal  Co.  v.  Patten  Paper  Co.  172' 
U.  S.  58.  43  L.  ed.  364,  19  Sup.  Ct.  Rep.  97.] 
Fishway  in. 

Power  of  State  as  to,  see  Commerce,  6c. 
Indictment    for    Failure    to    Maintain,    see 
Indictment,  etc.,  71. 

10.  The  power  of  the  state  to  compel   a 


986 


DANCE  HALL— DAYS. 


fishway  to  be  made  in  every  dam  across  a 
stream,  as  required  by  Iowa  Code  1897,  § 
2548,  extends  to  a  dam  which  the  state  it- 
self made  without  any  fishway  and  con- 
veyed in  that  condition,  without  expressly 
reserving  any  right  to  exercise  police  pow- 
er over  it.  State  ex  rel.  Remley  v.  Meek, 
112  Iowa,  338,  84  N.  W.  3,  51:  414 

Liability  as  to. 

Liability  for  Injury,  see  Action  or  Suit,  44. 
Damages   for   Failure   to  Repair,   see  Dam- 
ages, 127. 
Limitation   of   Action    for   Injuries   by,   see 

Limitation  of  Actions,  206. 
Dam   Made  to   Facilitate   Driving  of   Logs, 

see  Waters,  59. 
Dam   as   Obstruction   to   Floatable    Stream, 

see  Waters,  44-54. 
See  also  supra,  7;  infra.  Editorial  Notes. 

11.  One  called  upon  to  paj^  damages  for 
overflowing  land  under  authority  of  the 
legislature  to  erect  a  dam  for  the  purpose 
of  manufacturing  and  improving  naviga- 
tion cannot  defeat  liability  by  insisting 
that  more  land  has  been  overflowed  than 
is  absolutely  necessary  to  carry  out  such 
purposes.  Charnlev  v.  Shawano  Water- 
Power  &  R.  Improv.  Co.  109  Wis.  563,  85 
N.  W.  507,  53:  895 

12.  A  railroad  company  is'  not  relieved 
from  liability  for  a  dam  on  its  right  of 
way,  which  amounts  to  a  nuisance,  and 
which  it'  uses  and  keeps  in  repair,  by  rea- 
son of  the  fact  that  it  was  built  by  county 
authorities  under  an  act  of  the  legislature, 
but  with  the  railroad  company's  knowledge 
and  consent.  Pavne  v.  Kansas  Citv,  St. 
J.  &  C.  B.  R.  Co.  112  Mo.  6,  20  S.  W.  *322, 

17:  628 

13.  The  fact  that  water  above  a  bridge 
was  two  feet  higher  than  it  was  below  it, 
and  flowed  under  the  bridge  with  great 
force,  but  stood  several  feet  deep  below 
the  bridge,  does  not  show  that  a  dam  be- 
low the  bridge  did  not  aid  the  backing 
up  of  the  water  above  the  bridge.  Id. 

14.  A  common-law  action  may  be  main- 
tained for  damages  resulting  from  the  negli- 
gent or  improper  construction  or  mainten- 
ance of  a  dam  and  reservoir  constructed 
under  the  provisions  of  a  statute  which  au- 
thorizes the  building  of  the  dam  upon  pay- 
ment of  the  damages  resulting  from  the 
proper  exercise  of  the  authority  given,  and 
which  provides  that  such  damages  are  to 
be  recovered  only  by  petition  filed  for  the 
purpose,  as  provided  by  its  terms.  Aid- 
worth  V.  Lvnn,  153  Mass.  53,  26  N.  E.  229, 

10:  210 

Editorial  Notes. 

As  to  Obstruction  of  Waters  Generally,  see 
Waters,  TV.  §  24. 

Liability  of  county  for  injury  to  real  prop- 
erty from.  "39:  69. 

^laudatory  injunction  relating  to  mill- 
dams.     20:  163. 

Rights  conveyed  by  grant  of  dam.     67:  384. 

Liability  for  damming  back  water  of  stream. 
50:  817. 


DANCE  HALL. 

Constitutionality  of  Restrictions  of  Waiteni 
in,  see  Constitutional  Law,  318. 

Municipal  Regulation  of,  see  Intoxicating 
Liquors,  24. 


DANCING. 

By  Infants  in  Theater,  see  Infants,  6,  7. 


DANGER. 

Judicial  Notice  of,  see  Evidence,  63-65,  69, 

70,  105-119. 
Opinion  Evidence  as  to,  see  Evidence,  VIL 

♦-•-♦ 

DANGEROUS  AGENCIES. 

Electric  Wires,  see  Electricity,  III. 

Negligence  as  to.  Generally,  see  Negligence, 
I.  b. 

Liability  for  Injury  by,  see  Railroads,  92. 

Master's  Liability  for  Servant's  Use  of, 
see  Master  and  Servant,  629-632,  68(f- 
686,  V.  §§  20-251/2- 

See  also  Explosions  and  Explosives;  Fire- 
works. 

Editorial  Notes. 

Liability  to  servants  of  other  persons  for 
Injuries  by.     46:  116. 


DANGEROUS    ATTRACTIONS. 

See  Negligence,  I.  c,  2,  6. 


DANGEROUS  PREMISES. 

Liability   for  Injury  on,  see  Negligence,  L 
0,2. 

«-•-♦ 

DANGER   SIGNALS. 

Absence    of,    in    Highways,    see   Highways, 
269-271. 


"DATE. 

Alteration  of,  in  Note,  see  Alteration  of  In- 
struments, 25. 

Mistake  in  Date  of  Ticket,  see  Carriers,  382, 
592. 

On  Ticket,  Illegibility  of.  see  Carriers.  581. 

In  Copyright  Notice,  see  Copyright,  10. 

Of  Letter,  Evidence  of,  see  Evidence.  2294. 

Law  ot.  What  Date  (Governs,  .see  Criminal 
Law,  6;  Dower,  2;  Taxes,  504. 


DAYS  OF  GRACE-DEATH. 


987 


DAYS. 

Computation  of,  see  Time,  3,  4,  13-19. 
What  is,  see  Time,  5. 


DAYS    OF    GRACE. 


Purchase    of    Note    During,    see    Bills    and 
Notes,  216,  245. 

Editorial  Notes. 

iBank  customs  as  to.    21:  442. 
•    ^~-0- — 

DEACON. 

night  of  Action  by,  see  Parties,' ^06. 
Rights  of,  in  Church  Property,  see  Religious 
Societies,  18,  26. 


DEAD  ANIMALS. 


Confiscation  of,  see  Confiscation,  2. 
Property  Rights  in,  see  Constitutional  Law, 

777. 
Monopoly  in  Removal  of,  see  Monopoly,  3. 
Municipal  Regulations  as  to,  see  Mimicipal 

Corporations,  211-213. 
Contract  for  Crematory  for,  see  Municipal 

Corporations,  290. 

Editorial  Notes. 

Municipal  regulation  as  to  nuisance  of.    38: 
330. 


DEAD  BODIES. 


See  Corpse. 


DEADLY  WEAPON. 

Assault  with,  see  Assault  and  Battery,  22, 
23. 


DEAF  AND  DUMB. 


Contributory  Negligence  of,  see  Street  Rail- 
ways, 153. 
As  Witnesses,  see  Witnesses,  16. 


♦-»♦ • 

DEALING. 

What  Constitutes,  see  License,  81. 

Editorial  Notes. 

What  constitutes.     14:  529. 

♦-•-♦ • 

DEATH. 

L  In  General, 
n.  Right   of  Action   for  Causing. 
a.  In  General, 
b.  Wlio     may     Maintain      and      for 
Whom. 


III.  Wlio  Liable  for  Causing. 

IV.  Defensps. 

\'.  Atithoritv  to  Compromise  Claim  for. 
VI.  Effect  of". 
VII.  Editorial  Notes. 

Survivability  of  Action  for,  see  Abatement 

and  Revival,  25-27;  V.  §  1. 
Admiralty  Jurisdiction  in  Case  of,  see  Ad- 
miralty, 7,  8,  12. 
Federal    Jurisdiction     of    Action     for,    see 

Courts,  365. 
Of  Party  on  Appeal,  see  Appeal  and  Error, 

122. 
Prejudicial  Error  in  Admitting  Evidence  of 

Mother's     Suffering,     see     Appeal     and 

Error,  915. 
Bank    Paying    Money    Out    of    Depositor's 

Accoimt  after,  see  Banks,  378. 
Validity    of    Note    Payable    on    or    After 

Maker's  Death,  see  Bills  and  Notes,  17, 

18. 
Validity  of  Agreement  for  Payment  after, 

see  Contracts,  436. 
Of  Ejected  Passenger,  see  Carriers,  441. 
Opinion  Evidence  as  to  Cause  of,  see   Evi- 
dence, 1297-1301. 
Proof  of  Cause  of,  see  Evidence,  2215-2222. 
Of  Insured,  Cause  of,  see  Insurance,  VI.  b. 
Proximate  Cause  of,  see  Proximate  Cause. 
Question  for  Jurv  as  to  Cause  of,  see  Trial, 

114,  116,  117*,  126. 
Instruction  as  to  Burden  of  Proving  Cause 

of,  see  Trial,  801. 
Conflict    of   Laws   as   to   Liability    for,    see 

Conflict  of  Laws,  I.  e,  2;  and  also  infra, 

VIL  §  5. 
Mode  of  Inflicting  Penaltv  of,  see  Criminal 

Law,  208-211. 
Changing   Maner   of    Inflicting    Penalty    of, 

see  Criminal  Law,  190. 
Punitive  Damages  for,  see  Damages,  53. 
Measure  of  Damages  for,  see  Damages,  III. 

i,  3,  4,  6;  and  also  infra,  VII.  §  8. 
Caused  by  Breach  of  Contract  to   Furnish 

Gas  for  Fuel,  see  Damages,  101. 
Of  Child  During  Confinement,  see  Damages, 

189,  254. 
Of  Grantor  before  Delivery  of  Deed   Exe- 
cuted by  Agent,  see  Deeds,  13. 
Presumption   and   Burden   of  Proof  as  to, 

see  Evidence,  II.  e,  3. 
Presumption    and    Burden    of   Proof   as   to 

Negligence  of  Person  Found  Dead,  see 

Evidence,  586-595. 
Evidence  as  to  Loss  Sustained  by,  see  Evi- 
dence, 912. 
Reputation  of,  see  Evidence,  1480,  1481. 
Hearsay  Evidence  of,  see  Evidence,  1557. 
Admissibility    of    Declarations    of    Person 

Killed,  see  Evidence,  1576-1584. 
Evidence  of  Family  Standing  in  Action  for, 

see  Evidence,  2115-2117. 
Snfticiency  of  Proof  of,  see  Evidence.  2279. 
Of  (Jovernor  Pending  Election  Contest,  see 

Governor,  6. 
Transmission  of  Homestead  in  Case  of,  see 

Homestead,  IV.  b. 
As  Change  of  Title  to  Insured  Property,  see 

Insurance,  360,  361. 


988 


DEA.TH,  I.,  II.  a. 


Right  to  Recover  on  Policy  Insuring  against 
Injury  Where  Death  is  Instantaneous, 
see  In^iurance,   1357. 

Entry  of  Judgment  after,  see  Judgment, 
71-74. 

Validity  of  Judgment  against  Dead  Per- 
son, see  Judgment,  131-133. 

Of  Judge,  as  Unavoidable  Accident,  see 
Judges,  57. 

Limitation  of  Action  for,  see  Limitation 
of  Actions,  128. 

Parties  Defendant  in  Proceedings  to  Ap- 
point Administrator,  see  Parties,  147. 

Payment  to  Agent  after  Principal's  Death, 
see  Payment,  30. 

Allegation  of  Damage  from,  see  Pleading, 
248-252. 

Pleading  in  Action  for  Death,  see  Plead- 
ing, 56,  395-402. 

Removal  of  Action  for  Causing,  see  Re- 
moval of  Causes,  17. 

Of  Horse  Pending  Replevin  Suit,  see  Re- 
plevin, 31. 

Direction  of  Verdict  in  Action  for,  see 
Trial,  556,   564. 

Instruction  as  to  Damages  by,  see  Trial, 
777-780. 

As  to  Civil  Death,  see  Civil  Death. 


I.  In  General. 

1.  A  judgment  recovered  by  an  adminis- 
trator under  the  provisions  of  Neb.  Comp. 
Stat.  chap.  21,  §  2,  giving  a  right  of  action 
for  wrongful  death,  is  for  the  exclusive 
benefit  of  the  widow  and  the  next  of  kin 
of  tlie  deceased  person;  and  the  fact  that 
the  adniiinistrator,  in  his  petition  for  dam- 
ages, fails  to  name  all  the  legal  beneficia- 
ries provided  for  in  this  act,  will  not  bar  any 
legal  distributee  not  named  in  his  peti- 
tion from  receiving  his  distributive  share 
of  the  judgment  recovered.  Ovster  v.  Bur- 
lington" Relief  Dept.  65  Neb.  789,  91  N.  W 
699,  59:291 

2.  One  who  brings  an  action  as  the  per- 
sonal representative  of  a  deceased  daughter, 
to  recover  damages  to  the  daughter's  estate 
for  injuries  resulting  in  death,  can  assert 
no  right  that  the  daughter  could  not  have 
asserted,  if  alive.  Hughes  v.  Auburn,  161 
X.  Y.  96,  55  N.  E.  389.  46:  63« 
Limitation  of  liability  for  causing. 

'.i.  'I'lie  provision  of  a  state  Constitution 
against  limitation  of  liability  for  injuries 
resulting  in  death  cannot  prevail  over  the 
act  of  Congress  permitting  limitation  of 
liabilitv  for  maritime  losses.  Loughin  v. 
McCauiley,  186  Pa.  517,  40  Atl.  1020,    48:  33 


11.   Right    of   Action    for    Causing. 

a.  In  Ceneral. 

(~>n  High  Soas.  see  Boundaries,  6. 

I'or    Dcatli    Opciirring    in    Other    State,    see 

Conflict  of  Laws,  T.  o.  2. 
Election  of  Remedies  for  Causing,  see  Elec- 

ti'iii   of   Kemedies,    14. 


Death  Caused  by  Intoxicated  Person,  see 
Intoxicating  Liquors,  174. 

Limitation  of  Action  for  Causing,  see  Limi- 
tation of  Actions,  200. 

Interruption  of  Statute  of  Limitations  for, 
see  Limitation  of  Actions,  232,  241. 

Against  Corporation  after  Discharge  of  Re- 
ceiver, see  Receivers,  108. 

For  Editorial  Notes,  see  infra,  VII.  §§  4-8. 

4.  A  cause  of  action  for  personal  in- 
juries which  survives  by  force  of  Wis.  Rev. 
Stat.  §  4253,  is  separate  and  distinct  from 
the  cause  of  action  in  favor  of  surviving 
relatives  under  §  4255.  Brown  v.  Chicago 
&  N.  W.  R.  Co.  102  Wis.  137,  77  N.  W.  748, 
78  N.  W.   771,  44:  57» 

5.  The  fact  that  there  are  no  surviving 
relatives  or  creditors  of  a  person  killed  by 
wrongful  act  or  omission  does  not  pre- 
clude a  right  of  action  under  Hill's  (Or.) 
Ann.  Code,  §§  369,  371,  making  the  recov- 
ery assets  of  the  estate.  Perham  v.  Port- 
land General  Elec.  Co.  33  Or.  451,  53  Pac. 
14,  40:  799 

6.  Wrongful  death  under  such  circum- 
stances that,  had  death  not  ensued,  deced- 
ent could  have  proceeded  against  the  wrong- 
doer for  damages,  is  not  sufficient  of  it- 
self to  uphold  an  action  in  favor  of  his 
survivors  under  a  statute  providing  such 
action  and  naming  the  beneficiaries;  but  the 
existence  of  beneficiaries  within  the  pro- 
visions of  the  statute  must  be  shown.  Brown 
V.  Chicago  &  N.  W.  R.  Co.  102  Wis.  137,  77 
N.  W.  748,  78  N.  W.  771,  44:579 

7.  A  new  action  for  the  benefit  of  per- 
sons named,  and  not  a  continuation  of  that 
belonging  to  decedent,  is  created  bv  Rev. 
Stat.  1893,  §§  2315,  2316,  2318,  which  pro- 
vide that,  in  case  of  death  by  wrongful 
act  which,  had  death  not  ensued,  would  have 
entitled  the  injured  party  to  maintain  an 
action,  the  person  causing  the  death  shall 
be  liable  to  an  action,  notwithstanding  the 
death,  for  the  benefit  of  the  next  of  kin 
and  heirs  at  law,  to  the  extent  of  their 
injury,  to  be  brought  by  the  executor  or 
administrator,  in  case  the  injured  person  has 
not  recovered  •  judgment  before  death.  Re 
:\Iayo,  60  S.  C.  401,  38  S.  E.  634,  54:  660 

8.  Under  a  statute  giving  a  right  of 
action  for  damages  against  a  railroad  com- 
pany for  the  killing  of  a  person  by  reason 
of  the  negligence,  carelessness,  or  unskil- 
fulness  of  the  corporation,  its  agents,  serv- 
ants, and  employees,  the  cause  of  action 
must  come  strictly  within  the  terms  of  the 
statute  conferring  the  right.  Bowen  v. 
Illinois  C.  R.  Co.  136  Fed.  306,  70:  915 

9.  The  right  of  action  for  damages  re- 
sulting from  death  is  exclusive  of  an  ad- 
ministrator's right  of  action  to  recover  for 
the  pain  and  expense  suffered  by  the  per- 
son of  his  intestate  from  the  injuries  which 
caused  his  death,  under  R.  I.  Rev.  Stat. 
1857.  chap.  176,  creating  a  right  of  action 
for  death,  and  also  providing  for  the  sur- 
vival of  actions  of  "trespass  on  the  case 
for  damages  to  the  person,"  as  the  surviv- 
al applies  to  cases  of  injuries  not  causing 
death.  Lul)rano  v.  Atlantic  ^lills,  19  R.  I. 
I -".I.  :52  Atl.  20.-).  34:  797 


DEATH,  II.  b. 


9S9 


b.  Who  may   Maintain  and  for  Wliom. 

Action  by  Wife,  see  infra,  41,  42. 

Conflict   of   Laws  as   to   Widow's   Right   of 

Action,  see  Conflict  of  Laws,  227,  230, 

231,  234. 
Under  Civil   Damage   Act,   see   Intoxicating 

Liquors,   168-170. 

10.  A  recovery  for  the  death  of  another 
cannot  be  had  by  one  who  receives  from 
the  estate  of  the  deceased  property  greater 
in  value  than  all  the  prospective  benefits 
that  would  have  accrued  to  him  had  death 
not  ensued,  where  the  statute  creating 
the  right  of  action  gives  damages  only 
for  the  pecuniary  loss,  and  provides  that 
«ach  beneficiary  of  the  class  hi  relatives 
specified  shall  recover  separately  for  his 
own  special  injury.  San  Antonio  &  A.  P. 
R.  Co.  V.  Long,  87  Tex.  148,  27  S.  W.  113, 

24:  637 

11.  The  words  "heir  or  heirs,"  in  Colo. 
<ien.  Laws  1877,  p.  343,  giving  to  the  heirs 
a  right  of  action  for  death  if  there  be  no 
husband  or  wife  or  any  action  by  him  or 
her.  within  one  year,  mean  "child  or  chil- 
dren." and  limit  the  right  of  action  to 
lineal  descendants.  Hindry  v.  Holt,  24  Colo. 
464.  51  Pac.  1002,  39:  351 
Ifonresident  aliens. 

J'or  Editorial  Notes,  see  infra,  VII.  §  4. 

12.  General  statutory  language  provid- 
ing indemnity  to  the  next  of  kin  of  a  per- 
son negligently  killed  does  not  apply  in 
favor  of  nonresident  aliens  in  case  de- 
ceased is  instantly  killed,  or  dies  without 
conscious  pain.  McMillan  v.  Spider  Lake 
Sawmill  &  L.  Co.  115  Wis.  332,  91  N.  W. 
^79,  60:589 

13.  An  action  for  negligent  killing  of  her 
son  may  be  brought  by  a  nonresident  alien 
under  Mass.  Stat.  1887,  chap.  270,  §  2.  Mul- 
hall  V.  Fallon,  176  Mass.  266,  57  N.  E.  386, 

54:  934 

14.  Nonresident  aliens  may  maintain  the 
action,  under  statutes  authorizing  actions 
to  recover  damages  for  injuries  causing 
death,  for  the  benefit  of  certain  of  the  rela- 
tives of  decedent,  to  be  brought  by  all  the 
parties  entitled  thereto,  or  by  any  one  or 
more  of  them  for  the  benefit  of  all.  Bon- 
thron  v.  Phcenix  Light  &  F.  Co.  (Ariz.) 
71  Pac.  941,  61:  563 

15.  That  a  nonresident  alien  is  the  sole 
heir  of  a  resident  alien  killed  through  neg- 
ligence, and  will  receive  the  benefit  of  a 
recovery  for  his  death,  will  not  defeat  an 
action  liy  his  administrator  to  recover  dam- 
ages for  the  death,  under  a  statute  pro- 
viding that  all  causes  of  action  shall  sur- 
vive, and  that  damages  recovered  for  a 
wrongful  act  producing  death  shall  be  dis- 
posed of  as  personal  property  belonging  to 
the  estate  of  deceased.  Romano  v.  Capital 
City  Brick  &  P.  Co.  125  Iowa,  591,  101 
N.  W.  437,  68:  132 
Husband. 

16.  A  widower  is  not  a  proper  party  to  an 
action  for  the  wrongful  death  of  his  wife, 
where  the  recovery  inures  to  the  benefit  of 
the  children  and  next  of  kin.     Western  U. 


Teleg.  Co.  v.  McGill,  12  U.  S.  App.  651.  6  C. 
C.  A.  521,  57  Fed.  699,  21:  818 

17.  A  widower  is  not  given  any  right  to 
the  recovery  of  damages  for  the  death  of 
his  wife,  under  Kan.  Gen.  Stat.  \\  4518, 
providing  that  damages  in  an  action  for 
death  must  inure  "to  the  benefit  of  the 
widow  and  children,  if  any,  or  next  of 
kin."  Id. 

18.  A  surviving  husband  as  such  cannot 
maintain  a  suit  for  the  wrongful  killing  of 
his  wife,  under  Mill.  &  V.  (Tenn.)  Code, 
§  3130,  preventing  the  abatement  of  the 
suit,  although  the  recovery  inures  to  his 
benefit,  but  he  must  bring  the  action  as 
administrator.  Chattanooga  Electric  R.  Co. 
V.  Johnson,  97  Tenn.  667,  37   S.  W.  558, 

34:442 

19.  A  hus'band  is  not  of  the  next  of  kin 
of  his  wife  so  as  to  be  entitled  to  share 
with  the  next  of  kin,  who  are  given  by  stat- 
ute an  interest  in  the  damages  recovered 
for  wrongful  death.  Western  U.  Teleg.  Co. 
V.  McGill,  6  C.  C.  A.  521,  57  Fed.  699,  12  U. 
S.  App.  651,  21:  818 
Parents. 

Defenses  in  Action  by,  see  infra,  55-58. 

See  also  supra,  13;  infra,  40. 

For  Editorial  Notes,  see  infra,  VII.  §  6. 

20.  The  loss  of  services  of  a  minor  child 
killed  by  the  fault  of  another  does  not 
give  the  parents  at  common  law  any  right 
of  action  against  the  party  in  fault.  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Beall,  91  Tex.  310.  42  S. 
W.  1054,  41 :  807 

21.  The  prevention  of  the  performance  of 
a  contract  by  a  man  to  support  his  par- 
ents, by  negligently  causing  his  death,  gives 
them  no  right  of  action  at  common  law. 
Brink  v.  Wabash  R.  Co.  160  Mo.  87,  60  S. 
W.  1058,  53:  811 

22.  The  injury  to  a  parent  by  the  negli- 
gent killing  of  his  son  who  is  under  contract 
to  support  Mm,  thereby  preventing  perform- 
ance of  the  contract,  is  too  remote  to  form  a 
basis  for  recovery  on  hehalf  of  the  parent, 
in  the  absence  of  wilful  intent  to  injure 
the  parent.  Id. 

23.  Under  the  Texas  constitutional  pro- 
vision for  the  bringing  of  an  action  for 
exemplary  damages  by  "the  surviving  hus- 
band, widow,  or  the  heirs  of  his  or  her 
body,"  of  one  who  has  been  killed  by  gross 
negligence,  no  one  else  can  bring  such  ac- 
tion. Hence,  such  an  action  by  a  parent 
cannot  be  maintained.  Winnt  v.  Interna- 
tional &  G.  N.  R.  Co.  74  Tex.  32,  11  S.  W. 
907.  5:  172 

24.  Parents  are  not  "heirs"  within  the 
meaning  of  2  Hill's  (Wash.)  Code,  §  138. 
giving  a  right  of  action  to  the  widow  and 
children  of  a  man  killed  in  a  duel,  and  to 
the  heirs  or  personal  representatives  of  a 
person  whose  death  is  caused  by  wrongful 
act  or  neglect;  but  the  word  "heirs"  is 
limited  to  the  widow  and  children.  Noble 
V.  Seattle,  19  Wash.  133,  52  Pac.  1013, 

40:822 

25.  A  father  who,  after  a  divorce  decree 
granting  him  the  custody  of  his  child,  re- 
turns the  child  to  the  mother  and  disap- 
pears, brings  her  within  a  statute  permit- 


990 


DEATH,  II.  b. 


ting  a  mother  to  maintain  suit  for  the  neg- 
Ijgent  killing  of  her  child  in  case  the  father 
has  deserted  his  family.  Clark  v.  Northern 
P.    R.    Co.    29    Wash. '  139,    69    Pac.    636. 

59:  508 

26.  Partial  dependence  upon  her  son  for 
the  necessities  of  life  is  sufficient  to  en- 
able a  woman  to  maintain  a  suit  for  his 
negligent  killing,  under  the  Massachusetts 
statutes.  Mulhall  v.  Fallon,  176  Mass.  266, 
57    X.    E.    386,  54:  934 

27.  A  mother  is  dependent  upon  a  boy 
eleven  years  old  so  as  to  give  her  a  right  of 
action  for  his  death,  when  the  members  of 
the  family  are  mutually  dependent  upon 
the  labor  of  one  another  for  their  support, 
and  the  boy's  labor  aiding  the  father  on 
the  farm  and  his  mother  in  the  house  is 
worth  $6  per  month.  Atlanta  &  C.  Air 
Line  R.  Co.  v.  Gravitt,  93  Ga.  369,  20  S.  E. 
550,  26:  553 

28.  The  right  of  the  mother  of  an  un- 
married minor  whose  father  is  dead  to 
recover  damages  for  the  death  of  the 
child  under  a  statute  giving  such  right 
to  the  father  and  mother,  or  the  survivor 
of  them,  is  not  changed  hj  the  fact  that 
she  has  married  another  man  who  has  as- 
sumed the  obligations  of  a  natural  father 
to  his  stepchild.  Hennessy  v.  Bavarian 
Brew.   Co.   145   Mo.   104,  46  S.  W.  966, 

41 :  385 

29.  The  mother  of  an  illegitimate  child 
cannot  recover  for  his  death  under  Miss. 
Acts  1898,  p.  83,  giving  a  right  of  action 
to  the  mother  and  other  specified  relatives 
of  one  whose  death  results  from  wrong- 
ful injury.  Alabama  &  V.  R.  Co.  v.  Wil- 
liams, 78"^ Miss.  209,  28  So.  853,  51:  836 

30.  The  mother  of  an  illegitimate  child 
has  no  right  of  action  for  his  homicide 
luider  Ga.  Civ.  Code,  §  3828,  giving  to  a 
mother  a  right  of  action  for  the  homicide 
of  a  child  who  contributes  to  her  support. 
Robinson  v.  Georgia  R.  &  Bkg.  Co.  117 
Ga.   168,  43   S.   E.   4.52,  60:555 

31.  The  father  of  an  illegitimate  child 
has  no  right  of  action  for  the  child's  death, 
under  Ind.  Rev.  Stat.  1894,  §  267,  giving 
a  father  a  right  of  action  for  the  death  of 
a  "child,"  although  the  mother  is  dead  and 
the  child  had  been  acknowledged  by  the 
father  and  had  no  guardian  or  next  of  kin 
except  him.  McDonald  v.  Pittsburgh,  C.  C. 
&  St.  L.  R.  Co.  144  Ind.  459,  43  N.  E. 
447.  42:  309 
Children. 

After-Born   Children,   see   Judgment,   250. 

.32.  Minors  have  a  cause  of  action  for  the 
personal  injury  which  resulted  in  the  death 
of  their  mother,  as  the  right  of  action  of 
the  mother  is  made  to  survive  in  the  name 
of  her  children.  Delisle  v.  Bourriague,  105 
La.  77,  29  So.  731,  54:  420 

.33.  A  child  has  no  right  of  action  for  in- 
juries to  its  mother,  which  cause  its  pre- 
mature birth,  so  that  in  case  death  results 
a  cause  of  action  will  survive  under  a 
statute  giving  a  right  of  action  for  wrong- 
ful death  caused  by  negligence,  where  it 
is    such    as   would,   had   death   not   resulted, 


have  entitled  the  person  injured  to  main- 
tain an  action.  Gorman  v.  Budlong,  23 
R.  I.  169,  49  Atl.  704,  .55:  118 

34.  A  posthumous  child  is  one  of  the 
"children"  who  are  given  a  cause  of  action 
by  Tex.  Rev.  Stat.  §  2903.  for  injuries 
causing  the  death  of  their  father.  Nelson  v. 
Galveston,  H.  &  S.  A.  R.  Co.  78  Tex.  (►21,. 
14S.  W.  1021,  11:391 

35.  Children  have  no  right  of  action  for 
the  homicide  of  a  stepfather  on  whom  they 
were  entirely  dependent,  although  he  left 
no  widow  and  no  other  children,  luider  a 
statute  giving  a  right  of  action  for  the- 
homicide  of  a  "husband  or  parent."  Mar- 
shall y.  Macon  Sash,  D.  &  L.  Co.  103  Ga. 
725,  30  S.  E.  571,  41:  211 
BrotHer  or  sister. 

36.  An  illegitimate  half  sister  cannot 
maintain  an  action  under  Miss.  Acts  1898, 
p.  82,  entitling  a  sister  or  brother  to  sue- 
for  the  death  of  a  sister  or  brother.  Illi- 
nois C.  R.  Co,  V.  Johnson,  77  Miss.  727,  28- 
So.  753,  ^  51:  837 
Personal  representative. 

Authority    of,    to    Compromise    Action,    see 

infra,  63-65. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws^ 

232-237. 
Concurrent    Right    of   Action,    see    Election 

of  Remedies,  34. 
Jurisdiction  to  Appoint,  see  Executors  and 

Administrators,  13,  14. 
Collateral  Attack  on   Appointment   of,   see 

Executors  and  Administrators,   25. 
Allegations  as  to,  see  Pleading,  398. 
See  also  supra,  1,  9,  15;  infra,  59. 

37.  An  action  for  death  caused  by  wrong- 
ful act  or  omission,  whether  it  results  in- 
stantly or  not,  is  given  by  Hill's  (Or.^  Ann. 
Code,  §§  369,  371,  providing  that  the  per- 
sonal representatives  may  maintain  an  ac- 
tion at  law  if  the  deceased  "might  have 
maintained  an  action  had  he  lived."  and  that 
the  recovery  shall  be  administered  as  other 
personal  property  of  the  deceased.  Per- 
ham  v.  Portland  General  Elec.  Co.  33  Or. 
451,   53  Pac.   14.  40:  790 

38.  An  administrator  has  no  right,  under 
the  Massachusetts  employers'  liability  act 
(Mass.  Laws  1887,  chap.  270).  to  recover 
damages  on  account  of  the  death  of  his  in- 
testate from  injuries  caused  by  the  em- 
ployers' negligence,  in  addition  to  his  right 
as  legal  representative  tc  recover  the  dam- 
ages which  accrued  to  the  intestate  in  his- 
lifetime.  Ramsdell  v.  New  York  &  N.  E. 
R.    Co.    151    Mass.    245,   23   N.    E.    1103. 

7:  154 

39.  An  executor  may  bring  an  action  for 
the  negligent  killing  of  his  testator,  under 
a  statute  providing  that  the  action  may  be 
brought  by  heirs  or  personal  representa- 
tives, although  the  statute  expressly  pro- 
vides that  the  action  shall  be  in  favor  of 
the  wife  or  children  of  decedent,  and  a 
widow  survives  him.  provided  it  is  shown 
that  the  action  is  brought  with  her  con- 
sent. Copland  v.  Seattle^  33  Wash.  415,  74 
Pac.  582,  65:  333 

40.  The  Arkansas  act  of  1883  does  not 
take  away  the  right  which  survives  to  the 


DEATH.  III.,  IV. 


991 


perswial  representative  by  Mausf.  (Ai'k.) 
Dig.  §  5223,  to  reeover  upon  the  cause  of 
action  for  injuries  which  accrued  by  tlie 
common  law  to  an  injured  party  in  his  life- 
time; nor  does  it  deprive  a  father  of  his 
right  to  maintain  his  common-law  action 
for  loss  of  services  of  his  minor  child.  Tliere- 
fore  in  case  of  the  death  of  a  minor  the 
three  actions  may  be  prosecuted  at  the 
same  time,  and  recoveries  be  had  in  each 
and  all  of  them  Davis  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.  53  Ark.  117,   13  S.  W.  801, 

7:283 

41.  The  Arkansas  act  of  1883  (Mansf.  Dig. 
§§  5225,  5226)  embodying  the  provisions  of 
Lord  Campbell's  act  in  regard  to  suits  to  re- 
cover damages  for  death  resulting  from  the 
wrongful  act,  neglect,  or  default  of  an- 
other, applies  to  all  cases  in  which  a  re- 
covery may  be  had  under  that  act,  regard- 
less of  the  agency  by  which  the  injury  was 
inflicted,  and  supersedes  the  act  of  1875  re- 
lating to  suits  for  injuries  by  railway 
trains.  Hence,  such  suits  must  be  brought 
by  the  personal  representative  for  the  bene- 
fit of  the  widow  and  next  of  kin.  Id. 

42.  A  right  to  support  from  the  person 
killed  is  not  necessary  to  give  a  right  of 
action  under  the  statute  providing  for  an 
action,  in  the  name  of  the  personal  repre- 
sentative of  a  person  wrongfully  or  negli- 
gently kilkd,  for  the  benefit  of  his  wife  or 
next  of  kin.  Howard  v.  Delaware  &  H. 
Canal  Co.  40  Fed.  195,  6:  75 


III.  Who  Liable  for  Causing. 

Liability  of  County  for  Killing  by  Mob,  see 
Constitutional  Law,  259a;  Counties,  40, 
41. 

Liability  of  Town  for  Death  in  Jail,  see 
Jails,  4. 

Liability  for  Sale  of  Drug  Causing,  see 
Drugs  and  Druggists,  4,  5. 

Liability  of  Innkeeper  for,  see  Innkeepers, 
25. 

Municipal  Liability  for,  see  Municipal  Cor- 
porations, 461,  513,  523. 

Joint  Liability  of  Agent,  and  Railroad  Com- 
pany for  Causing,  see  Joint  Creditors 
and  Debtors,  3. 

Liability  of  Railroad  Receiver  in  Case  of,  see 
Receivers,  73. 

For  Editorial  Notes,  see  infra,  VII.  §  4. 

43.  A  private  corporation  may  be  liable 
for  causing  the  death  of  a  person,  under  the 
Te.vas  statute  creating  liability  when  the 
death  of  any  "person"  is  caused  by  the 
wrongful  act,  negligence,  etc.,  of  "another." 
Fleming  v.  Texas  Loan  Agency,  87  Tex. 
238,  27  S.  W,   126,  26:  250 

44.  The  fraudulent  sale  of  a  horse  by  one 
who  knows  that  it  has  a  contagious  dis- 
ease,— such  as  glanders, — to  one  ignorant  of 
the  fact,  will  render  the  seller  liable  for 
the  death  of  one  who  contracts  the  disease 
while  in  charge  of  the  horse  for  the  pur- 
chaser, onl}'  in  case  such  death  is  a  natural 
and   probable   consequence   of   contact   with 


the  horse.    State  use  of  Hartlove  v.  Fox,  79 
Md.  514.  29  Atl.  601,  24:  679 

45.  The  statutory  right  of  action  for  dam- 
ages by  reason  of  death  caused  by  wrongful 
act,  neglect,  or  default  does  not  extend  to 
an  action  against  a  city  by  the  representa- 
tives of  one  who  died  from  disease  sui)or- 
induced  by  the  neglect  of  sanitary  |)rocau- 
tions  on  the  part  of  the  public  authorities 
in  the  construction  or  maintenance  of  a 
sewer  system.  Hughes  v.  Auburn.  161  N. 
Y.  96,  55  N.  E.  389,  46:  636 

46.  An  express  company  which,  under  con- 
tract with  a  railroad  company,  has  for  its 
use  a  particular  car  or  part  of  a  car  in  a 
train  controlled  by  the  latter,  is  not  with- 
in the  terms  of  a  statute  giving  damages 
for  death  caused  by  the  negligence  of  the 
"proprietor,  owner,  charterer,  or  hirer  of 
any  railroad,  steamboat,  stage  coach,  or 
other  vehicle  for  the  conveyance  of  goods 
or  passengers,"  or  of  their  servants.  Lips- 
comb v.  Houston  &  T.  C.  R.  Co.  95  J'ex. 
5,  64  S.  W.  923,  55:  869 

47.  A  statute  giving  a  right  of  action  for 
thp  death  of  "any  person"  througli  tlie  care- 
lessness or  criminal  action  of  an  agent,  of- 
ficer, or  other  employee  of  a  railroad  com- 
pany, does  not  apply  to  a  person  killed  by 
the  negligence  of  a  fellow  servant.  Lutz 
v.  Atlantic  &  P.  R.  Co.  6  X.  M.  496.  30  Pac. 
912,  16:  819 

48.  Under  a  statute  giving  a  right  of  ac- 
tion against  a  railroad  company  for  death 
caused  by  the  negligence  or  unskilfulness 
of  its  agents  or  servants,  such  loss  of  life 
must  result  from  the  negligence  or  iniskil- 
fulness  of  a  servant  or  agent  while  engaged 
in  the  work  assigned  him  by  the  master. 
Bowen  v.  Illinois  C.  R.  Co.  136  Fed.  30(5. 

70:  915 


IV.  Defenses. 

Burden  of  Proving  Justification  or  Illegal 
Excuse,  see  Evidence,  339. 

Limitation  of  Action,  see  Executors  and  Ad- 
ministrators, 31. 

See  also  supra,  15. 

49.  A  negligent  injury  to  one  having  an 
incurable  disease,  followed  by  his  death, 
furnishes  a  good  cause  of  action  if  the 
death  was  materially  hastened-  by  reason 
of  the  injury  as  an  efficient  cause,  but  not 
if  death  was  inevitable  in  a  short  time 
from  the  disease,  and  the  injury  was  so 
slight  as  simply  to  aggravate  the  disease, 
which  remains  the  cause  of  death.  Louis- 
ville &  N.  R.  Co.  v.  Northington,  91  Tenn. 
56,  17  S.  W.  880,  16:  268 

50.  A  husband's  right  of  action  for  the 
loss  of  his  wife's  society  on  account  of  in- 
juries which  result  in  her  death  is  defeated 
by  a  recovery  of  judgment  by  her  personal 
representative  in  an  action  for  her  death, 
brought  under  Ky.  Gen.  Stat.  chap.  57.  § 
1,  for  the  benefit  of  her  estate,  which  is 
more  advantageous  to  him  than  his  common- 
law  right  of  action  for  loss  of  her  society. 
Louisville  &  X.  R.  Co.  v.  McEhvain.  98  Ky. 
700,  34  S.  W.  236,  34:  788 


992 


DEATH,  V. 


Contributory  negligence  of  deceased. 

Of  Passenger,  see  Carriers,  257. 

Of  Person  Killed  by  Street  Car,  see  Street 

Railways,  145. 
Complaint  Showing,  see  Pleading,  397. 
See  also  Landlord  and  Tenant,  166. 

51.  Contributory  negligence  by  deceased 
is  not  a  defense  to  an  action  by  his  repre- 
sentatives to  hold  another  person  liable  for 
wrongfully  killing  him  because  he  was  mak- 
ing an  assault  on  a  third.  Tucker  v.  State 
use  of  Johnson,  89  Md.  471,  43  Atl.  778, 
44  Atl.  1004,  46:  181 

52.  An  action  for  damages  for  wrongful 
death  cannot  be  maintained  by  a  father  un- 
der Miss.  Code  1892,  §  663,  if  deceased  was 
guilty  of  contributory  negligence.  Meyer  v. 
King,  72  Miss.  1,  16  So.  245,  35:  474 

53.  Contributory  negligence  is  a  defense 
to  an  action  for  the  death  of  a  person  re- 
sulting from  "negligence  or  wrongful  act," 
under  Ky.  Stat.  §  6,  which  further  provides 
for  punitive  damages  if  the  "act  is  wilful 
or  the  negligence  is  gross,"  but  does  not,  as 
prior  statutes  did,  give  any  right  of  action 
for  "wilful  neglect."  Clark  v.  Louisville  & 
N.  R.  Co.  101  Ky.  34,  39  S.  W.  840,      36:  123 

54.  Contributory  negligence  on  the  part  of 
a  person  killed  by  the  wrongful  act,  neglect, 
or  default  of  another,  prevents  any  liability 
arising  against  the  latter  for  such  death, 
under  Ohio  Rev.  Stat.  §  6134,  providing 
tliat  when  death  is  caused  by  such  wrong- 
ful act,  neglect,  or  default  as  would,  if 
death  had  not  ensued,  entitle  the  party  in- 
jured to  maintain  an  action  for  damages, 
the  one  causing  the  injury  shall  be  liable  to 
an  action  for  damages.  Wolf  v.  Lake  Erie 
&  W.  R.  Co.  56  Ohio  St.  517,  45  N.  E.  708, 

36:  812 
Contributory  negligence  of  beneficiary. 
For  Editorial  Notes,  see  infra,  VII.  §  4. 

55.  The  mother  of  a  boy  is  not  chargeable 
with  the  negligence  of  a  custodian  for  him 
chosen  by  the  father,  so  as  to  defeat  her 
right  to  recover  for  his  wrongful  death. 
Atlanta  &  C.  Air  Line  R.  Co.  v.  Gravitt,  93 
Ga.  369,  20  S.  E.  550,  26:  553 

56.  Negligence  of  a  parent  contributing 
to  the  death  of  his  infant  child  will  defeat 
a  recovery  by  him  as  administrator  of  the 
«hild,  when  he  is  the  sole  beneficiary  of  the 
actiion.  Bamherger  v.  Citizens'  Street  R. 
Co.  95  Tenn.  18,  31  S.  W.  163,  28:  486 

57.  The  right  of  recovery  in  favor  of  the 
estate  of  a  child  killed  in  consequence  of 
negligence  is  not  aifected  by  the  fact  that 
the  parents,  wno  are  entitled  to  his  estate 
by  inheritance,  contributed  to  the  accident. 
Wvmore  v.  Mahaska  County,  78  Iowa,  396, 
43'  N.  W.  264,  6 :  54o 

58.  Negligence  on  the  part  of  the  parents 
of  a  sick  child  in  caring  for  it  after  it  has 
been  removed  from  a  house  through  the 
owner's  abuse  of  process,  under  a  judgment 
of  forcible  entry  and  detainer,  against  its 
l)arents'  will,  constitutes  no  defense  to  an 
action  against  the  owner  for  causing  its 
(leatii.  which  resulted  from  the  exposure. 
P>ra(lsliaw  v.  Frazier,  113  Iowa,  579,  85  N. 
W.  752,  55:  258 

59.  Contributory   negligence  of  the   bene- 


ficiaries, but  not  of  the  administrator,  will 
prevent  a  recovery  in  favor  of  such  benefi- 
ciaries as  are  guilty  of  negligence,  but  not 
as  to  beneficiaries  free  from  negligence  in  an 
action  under  Ohio  Rev.  Stat.  §§  6134,  6135, 
making  any  person  liable  to  an  action  for 
damages  where  death  is  caused  by  such 
wrongful  act,  neglect,  or  default  a.e  would 
have  entitled  the  decedent  to  maintain  an 
action  if  death  had  not  ensued,  and  provid- 
ing that  such  action  shall  be  brought  in 
the  name  of  the  personal  representative  for 
the  exclusive  benefit  of  specified  persons. 
Wolf  V.  Lake  Erie  &  W.  R.  Co.  55  Ohio  St. 
517,  45  N.  E.  708,  36:  812 

Release  or  compromise. 
Sufficiency   of  Answer  as  to,   see  Pleading, 

507. 
For   Editorial  Notes,   see   infra,   VII.    §§   4, 

7. 

60.  A  widow's  release  of  a  right  of  action 
for  the  death  of  her  husband  does  not  af- 
fect her  right  to  maintain  an  action  for  her 
child  in  her  representative  capacity,  under 
Bum's  (Ind.)  Rev.  Stat.  1894,  §  285  (Hor- 
ner's Rev.  Stat.  1897,  §  284).  Pittsburg,  C. 
C.  &  St.  L.  R.  Co.  V.  Moore,  152  Ind.  345, 
53  N.  E.  290,  44:  638 

61.  A  right  of  action  for  the  death  of  a 
husband  or  father,  given  to  wife  or  children 
by  Ga.  Civ.  Code,  §  3828,  is  barred  by  his 
voluntary  settlement,  during  his  lifetime, 
with  the  wrongdoer  for  the  injuiy  which 
afterward  results  in  his  death.  Southern 
Bell  Teleph.  &  Teleg.  Co.  v.  Cassin,  111 
Ga.  575,  36  S.  E.  881,  50:  604 

62.  A  release  by  the  party  injured  of  all 
demands  for  personal  injuries  precludes  any 
right  of  action  on  account  of  his  death  sub- 
sequently resulting  therefrom,  under  Pa. 
Acts  April  15,  1851,  §  19,  and  April  26, 
1855,  giving  a  right  of  action  for  death 
caused  by  unlawful  violence  or  negligence, 
if  "no  suit  for  damages  be  brought  by  the 
party  injured  during  his  or  her  life,"  to  the 
widow,  children,  or  parents  of  the  deceased. 
Hill  V.  Pennsylvania  R.  Co.  178  Pa.  223,  35 
Atl.  997,  35:  196 


V.  Authority  to  Compromise  Claim  for. 

For  Editorial  Notes,  see  infra,  VII.  §  4. 

63.  The  power  of  an  executor  or  adminis- 
trator to  compromise  disputed  claims  ap- 
plies to  a  purely  statutory  cause  of  action 
for  causing  the  death  of  the  intestate,  to  be 
brought  for  the  use  of  his  ^ridow  and  next 
of  kin.  Parker  v.  Providence  &  S.  Steam- 
ship Co.   17  R.  I.  376,  378,  22  Atl.  284, 

14:  414 

64.  A  compromise  of  a  cause  of  action  for 
death  may  be  made  by  the  personal  repre- 
sentatives of  the  person  killed  without  the 
consent  of  the  next  of  kin  or  the  probate 
court,  either  before  or  after  the  commence- 
ment of  an  action  imder  Minn.  Gen.  Stat. 
1894,  §  5913,  although  this  action  is  brought 
for  the  benefit  of  the  next  of  kin.  Foot  v. 
Great  Northern  R.  Co.  81  Minn.  493.  84  N. 
W.  342,  52:  354 


DEATH,  VI..  VII. 


65.  The  5^idow  of  a  person  having  no 
children  and  killed  by  the  negligence  of  an- 
other cannot  compromise  or  settle  an  ac- 
tion brought  by  the  administrator,  under 
A  statute  providing  that  an  action  may  be 
brought  for  a  death  caused  by  the  wrong- 
ful act  or  negligence  of  another,  by  the 
personal  representatives  of  the  deceased,  and 
that  the  damages  recovered  shall  inure  to 
the  exclusive  benefit  of  the  widow  and  chil- 
dren of  the  deceased,  since  such  damages 
will  be  chargeable  with  the  expenses  of  the 
administrator's  services,  attorney's  fees,  and 
of  administration.  Yelton  v.  Evansville  & 
I.  R.  Co.  134  Ind.  414,  33  N.  E.  629,  21:  158 


VI.  Effect  of. 

To  Abate  Action,  see  Abatement  and  Re- 
vival, II. 

To  Abate  Writ  of  Error  in  Criminal  Case, 
see  Appeal  and  Error,  362. 

On  Court's  Power  over  Costs,  see  Appeal 
and  Error,  1227. 

Revocation  of  Note  by  Maker's  Death,  see 
Bills  and  Notes,  41. 

Revocation  of  Power  by,  see  Banks,  92a; 
Mortgage,  46,  179. 

Revocation  of  Guaranty  by,  see  Guaranty, 
39-42. 

Termination  of  Contract  by,  see  Contracts, 
769-774. 

As  Ground  of  Relief  from  Contract,  see  Con- 
tracts, 672,  673. 

On  Check,  see  Banks,  116,  117;  Gift,  19. 

On  Right  to  Maintain  Creditors'  Bill,  see 
Creditors'  Bill,  26. 

Of  Husband,  Effect  on  Alimony,  see  Di- 
vorce and  Separation,  92-95. 

Of  Homesteader,  Effect  on  Creditor's  Rights, 
see  Homestead,'^8-31,  41. 

Of  Members  of  Family,  Effect  oiT  Home- 
stead, see  Homestead,  44-46. 

Of  Tenant,  Effect  on  Lease,  see  Landlord 
and  Tenant,  58. 

Of  Plaintiff's  Death  after  Issuance  of  Exe- 
cution, see  Levy  and  Seizure,  62. 

On  Running  of  Limitations,  see  Limitation 
of  Actions,  226. 

On  Contract  of  Employment,  see  Master 
and  Servant,  33. 

On  Partnership  Real  Estate,  see  Partner- 
ship, 88-96. 

On  Agent's  Authority,  see  Principal  and 
Agent,  7. 

On  Right  to  Collect  Tolls,  see  Tolls  and  Toll 
Roads,  17. 

Rendering  Condition  Subsequent  Impossi- 
ble of  Performance,  see  Wills,  302. 

On  Competency  of  Witness,  see  Witnesses, 

1.  c. 

For    Editorial    Notes,    see    infra,    VII.    §§ 

2,  3. 


VII.  Editorial  Notes. 

Abatement,  Survival,  or  Revival  of  Action, 
see    Abatement    and    Re- 
vival, V. 
L.R.A.  Dig.— 63. 


a.  In  general. 

§  I.  Generally. 

Law  as  to  civil  death  in  United  States.  18: 
82. 

Admissibility  of  finding  of  coroner  to  show 
cause  of  death.    68:  285. 

Presumption  as  to  survivorship  where  sev- 
eral persons  lost  in  same 
disaster.     10:  550.* 

Testimony  of  witness,  since  deceased,  at 
former  trial.    2:  78.* 

§  2.  Effect  of. 

As  excuse  for  nonperformance  of  contract. 
14:  217. 

To  relieve  from  contract.    23:  707. 

Effect  of  death  of  subscriber  to  corporate 
^  stock.     33:  597. 

Effect  of  death  of  cosurety.    2:  184.* 

Effect  of  death  of  guarantor.    2:  183.* 

Effect  of  death  of  party  to  revoke  warrant 
of  attorney  to  confess 
judgment.    'l3:  797. 

Effect  of  death  upon  liability  of  husband 
and  wife  for  the  latter's 
libel  or  slander.    30:  529. 

Right  to  recover  for  services  interrupted  by 
sickness  or  death.  16:  858. 

Of  third  person  as  condition  of  performance 
of  contract  of  marriage. 
52:  660. 

§3.  —  Upon  judgment  or  execution. 

Entry  of  judgment  nunc  pro  tunc  after 
death  of  party.    20:  148. 

Effect  of  judgment  entered  against  dead 
person.     49:  153. 

Effect  of  the  death  of  one  of  the  parties 
after  judgment  upon  rem- 
edy by  execution.  61 :  353. 

b.  Right  of  action  for. 

§  4.  Generally. 

Liability    for  death   caused   by   negligence. 
2:  68,*    520;*    3:  385;*   4: 
261;*  5:  172;*  7:  154.* 
Where    injuries    are    inflicted    beyond 

state  limits.     4:  261.* 
Instances.    4:  262.* 
Venue  of  action.     4:  262.* 
Right  of  action;  in  whom.    4:  263;*  13: 

458.* 
Contributory  negligence  as  defense.    4: 
263.* 

Right  of  alien  nonresident  to  maintain 
statutory  action  for  death 
of  other  person,    54:  934. 

Effect  of  parent's  contributory  negligence 
to  defeat  his  recovery  for 
death  of  child.     17:  79. 

Liability  for  killing  trespasser  by  means 
of  spring  guns,  traps,  and 
other  dangerous  instru- 
ments.     29:  154. 

Liability  of  railroad  receiver  for.     15:  262. 

Right  of  action  for,  as  basis  of  jurisdiction 
to  appoint  administrator. 
24:  686. 

Power  to  compromise  action  for.    21:  158. 

Compromise  by  personal  representative  of 
suit  for  damages  for  caus- 
ing death.     14:  417. 


994 


DEATH  WARRA.NT— DEBTOR  AND  CREDITOR. 


§  5.  Action  under  foreign  statute;   conflict 

of  laws. 
Taking  jurisdiction  of  cause  of  action  aris- 
ing outside  of  state.     56: 
193. 
What  law  determines  right  of  action.  56:  193. 
Law    applicable    in    actions    upon    foreign 
cause    of    action.      56:  193 
Conflict  of  laws  as  to  limitation  of  actions 

for.     48:  639. 
§  6.  Right  of  action  at  common  law. 
Common-law  right  of  action  of  parent  for 
loss    of    services    of    child 
killed.     41:- 807. 
Rule  that  no  action  will   lie.     41 :  807. 
DiflFerent  theories  as  to.    41:  807. 
Doctrine    that    private    injury    is 
merged    in    publicj   wrong. 
41:  807. 
Doctrine  that  human  life  is  not  a 
subject   of   civil   damages. 
41 :  808. 
Effect  when  death  is  not  instanta- 
neous.  41:  810. 
The  contrary  rule.     41:  811. 
The  true  rule.     41:  814. 
Rule  when  injury  consists  of  a  breach 
of  contract.    41:  815. 
§  7.  Distinct  causes  of  action. 
How  many  distinct   causes  of  action   arise 
from  injuries  resulting  in 
death.     34:  788. 
Alternative  action  for  death  or  injurv. 
34:  789. 
Generally.     34:  789. 
Actions   for   death    as    affected   by 
release.     34:  790. 
By  injured  party.     34:  790. 
By  others.    34:  792. 
By  plaintiffs.    34:  793. 
Other  actions  as  a  bar.     34:  794. 
Actions    for    the    injurv.      34: 

794. 
Other    actions    for    the    death. 
34:  795. 
Multiplicity   of   actions   for   death. 

34:  796. 
Bar  of  other  actions  bv  limitation. 

34:  797. 
For  death  of  infants.    34:  798. 
Concurrent    actions    for   death   and    in- 
jury.   .'54:  801. 
§  8.  Damages  recoverable. 
Law  governing.     15:  585;  56:  312. 
Difi'erence  as  to  amount  of  recovery  as  af- 
fecting   action    for    death 
based    on    statute    of    an- 
other state.     56:  205. 
Mental  anguisli  as  an  element  of  damages 
for  injuries  causing  death. 
13:  860." 
Measure  of  damages  for  death  from  sale  of 
intoxicating     liquor.^.       3: 
327.* 
Effect  of  benefit  from  otlier  source  to  miti- 
gate damages   for   wrong- 
ful death.    67:  91. 
Measure   of   damages   for   death   caused   by 

negligence.     17:  71. 
Interest  on  sum  allowed  as  damages  for  per- 
sonal injuries  resulting  in 
death.     18:  449. 


DEATH  WARRANT. 
Appeal  from,  see  Appeal  and  Error,  517. 


DEBATES. 

Of  Constitutional  Convention,  see  Consti- 
tutional Law,  52. 

Invalidity  of  Contract,  see  Contracts,  406;. 
Lottery,  24. 

Editorial  Xotes. 

What  are;   nature  of.  1:  787.* 


DEBT. 

Penalty  in  Bastardy  Case  as,  see  Bastardy,. 
6. 

Action  for,  against  Servant  or  Agent,  see- 
Case,  8. 

Final  Decree  for  Alimony  as,  see  Contempt.. 
96. 

Liability  of  Executor  for,  eee  Executors  and 
Administrators,  49,  50. 

Of  Personal  Representative  to  Decedent's 
Estate;  Liability  on,  see  Executors  and 
Administrators,  79,  80,  97. 

Situs  of,  see  Garnishment,  I.  d;  Insolvency, 
6. 

Imprisonment  for,  see  Contempt,  95-98;  Im- 
prisonment for  Debt. 

Interest  on,  see  Interest,  I,  b. 

Deduction  of,  in  Assessing  for  Taxes,  see- 
Taxes,  43-t5,  405^14. 

Taxation  of,  see  Taxes,  145,  149. 

What  are  Debts,  see  Bankruptcy,  13;  Cor- 
porations, 323,  324,  550;  Counties,. 
38;  Creditors'  Bill,  22;  Divorce  and 
Separation,  96;  Executors  and  Ad- 
ministrators, 156,^  Gai'nishment,  51; 
Homestead,  24. 

1.  A  complainant  under  a  statute  impos- 
ing a  finvj  cannot  recover  in  debt  that  por- 
tion of  the  fine  to  which  by  the  statute 
he  is  entitled.  State  v.  Marshall,  64  N.  H. 
549,  15  Atl.  210,  1:51. 

2.  A  common-iaw  action  of  debt  will  not 
be  denied  on  the  ground  that  the  plaintiff 
has  in  another  tribunal  a  more  speedy  and 
simple  remedy  which  is  equally  efficacious, — 
especially  where  this  would  deprive  him  of 
the  right  to  a  trial  by  jury.  Braithwaite 
V.  Jordan,  5  X.  D.  196,  65  X.'W.  701,  31:  238 

3.  A  debt  is  any  kind  of  obligation  of 
one  man  to  pav  money  to  another.  Duns- 
moor  V.  Furstenfeldt,  88  Cal.  522,  26  Pac. 
518,  12:  508- 

Editorial  Notes. 

Constitutionality  of  imprisonment  for.     34: 

634. 
W]\CTe   debt   garni shable.      19:  577;    67:  209.. 


DEBTOR  AND  CREDITOR. 

Accord   and   Satisfaction    between,   see   A©» 
cord  and  Satisfaction. 


DEBTOR  AND  CREDIT01{. 


9M 


Compromise  and  Settlement  between,  see 
Compromise  and  Settlement. 

Composition  with  Creditors,  see  Composi- 
tion with  Creditors. 

Assignments  of  Debtors,  see  Assignments 
for  Creditors. 

When  Relation  Exists,  see  Banks,  102; 
Bills  and  Notes,  183;  Levy  and  Seizure, 
5;  Limitation  of  Actions,  10(5. 

What  Terminates  Relation,  see  Landlord 
and  Tenant,  66. 

Conspiracy  to  Fraudulently  Dispose  of  Debt- 
or's Property,  see  Case,  15. 

Right  to  Transfer  Property  to  Paj'  Debt, 
see  Constitutional   Law,  778. 

Right  to  Threaten  Debtor,  see  Constitu- 
tional Law,  932. 

Rights  of  Creditors  in  Unassigned  Dower, 
see  Dower,  69-71. 

Election  as  to  Debtor,  see  Election. 

Remedy  against  Legatees  or  Next  of  Kin  of 
Debtor,  see  Election  of  Remedies,  15. 

Representation  of  Creditors  by  Personal 
Representative,  see  Executors  and  Ad- 
ministrators, 34,  60. 

Creditors  of  Decedent,  see  Executors  and 
Administrators,   IV. 

Concealment  of  Value  of  Collateral  on 
Abatement  of  Debt,  see  Fraud  and  De- 
ceit,   13. 

Conveyances  Fraudulent  as  to  Creditors,  see 
Fraudulent  Conveyances. 

As  to  Remedies  of  Creditors,  see  Attach- 
ment; Creditors'  Bill;  Fraudvilent  Con- 
veyances, VIIL,  IX.;      Garnishment. 

As  to  Exemptions,  see  Exemptions;  Home- 
stead. 

Liability  of  Wife's  Separate  Estate  for  Her 
Debts,  see  Husband  and  Wife,  110, 
111. 

Rights  of  Husband's  Creditors  as  Affected 
by  Marital  Relations  of  Debtor,  see 
Husband  and  Wife,  105-109,  181-192; 
V.  §  16. 

Creditor's  Rights  to  Earnings  of  Emanci- 
pated Child,  see  Parent  and  Child,  4. 

Insolvency  of  Debtor,  see  Assignment  for 
Benefit  of  Creditors;  Bankruptcy; 
Banks  V.,  VTII.  §§  18-22;  Corporations, 
VL  f;  VIL  d;  VIII.  §§  48-51;  Insol- 
vency; Partnership. 

Insurable  Interest  in  Life  of  Debtor,  see  In- 
surance, 174-177. 

Effect  on  Insurance  of  Deeding  Projierty  to 
Creditor,  see  Insurance,  368. 

Rights  in  Insurance  Procured  by  Fraudu- 
lent Grantee,  see  Insurance,  1151. 

Rights  of  Creditor  to  Life  Insurance, ,  see 
Insurance,  VI.  d,  2,  6. 

Priority  of  Judgment  against  Fraudulent 
Grantor,  see  Judgment,  313,  314. 

Liability  of  Creditor  for  Libel,  see  Libel 
and  Slander,  2. 

Lien  of  Creditor,  see  Liens;  Mechanics'  Lien. 

Creditor's  Right  to  Maintain  Action  on  Con- 
tract with  Debtor,  see  Parties,  55-57. 

Creditor's  Right  to  Intervene,  see  Parties, 
218. 

Liability  for  Debts  of  One  Exercising  Power 
of  Appointment,  see  Powers,   3,  4. 

Rights  of  Creditors  in  Trust  Fund,  see 
Trusts,  m.  b. 


1.  A  debtor's  time,  talents,  and  industry 
are  at  his  own  disposal,  and  his  creditor* 
have  no  claim  thereto.  Mayers  v.  Kaiser, 
85  Wis.   382,  55  N.  W.   688,  21 :  62.1 

2.  A  condition  in  a  devise,  that  the  prem- 
ises shall  in  nowise  ever  be  subject  tf> 
any  debt,  liability,  execution,  or  attach- 
ment against  the  devisee,  existing  at  that, 
time  or  at  any  future  time,  is  void.  Van 
Osdell  V.  Champion,  89  Wis.  661,  62  N.  W. 
539,  27:77:? 

3.  A  loan  of  money  to  a  corporation  will 
render  it  liable  for  the  debt,  although  the 
note  of  individuals,  instead  of  the  note  of 
the  corporation,  wa.s  taken  therefor  be- 
cause it  was  supposed  to  be  better  security. 
The  test  is  whether  the  note  was  received 
as  a  consideration  for  the  money,  or  only 
as  a  security.  Third  Nat.  Bank's  AppeaU 
141  Pa.  214,  21  Atl.  598,  12:  22$ 
Effect  of  creditor's  nonresidence. 

4.  The  fact  that  creditors  are  nonresidents 
will  not  affect  the  question  of  the  validity  of 
a  mortgage  made  to  them  as  against  other 
creditors.  Nathan  v.  Lee,  152  Ind.  232,  52 
N.  E.  987,  43:  820 
Attempt  to  evade  exemption  laws. 

See  also  infra,  Editorial  Notes,  §  1. 

5.  An  attempt  to  evade  the  exemption 
laws  of  the  state  in  which  both  parties  re- 
side, by  a  creditor  who  attaches  property 
of  his  debtor  temporarily  found  in  another 
state,  and  enforces  his  claim  there  notwith- 
standing an  injunction  from  a  court  of  h\» 
own  state,  makes  him  liable  to  his  debtor 
in  damages  in  the  state  where  they  reside. 
Stewart  v.  Thomson,  97  Kv.  575.  31  S.  W. 
133,  "  36:  582 

6.  The  term  "corporations  engaged  in  in- 
terstate business,"  in  the  title  of  the  Ne- 
braska act  of  1889  for  the  protection  of 
earnings  of  employees  of  corporations,  firms, 
or  individuals  engaged  in  interstate  busi- 
ness, against  attempts,  by  assignment  or 
otherwise,  to  evade  the  exemption  laws,  con- 
strued with  reference  to  the  object  of  the 
act,  means  a  corporation  doing  business 
and  employing  men  in  that  state,  and  hav- 
ing in  another  state  such  situs  as  to  permit 
of  its  being  reached  by  process  of  garnish- 
ment there.  Bishop  v.  Middleton,  43  Neb. 
10,  61  N.  W.  129,  26:  44.'> 

Editorial  Notes. 

§  I.  Generally. 

One  receiving  credit  responsible  for  the 
debt;  effect  of  taking  se- 
curity.    12:223.' 

Debtors  right  of  action  against  creditor  for 
collecting  debt  in  another 
jurisdiction  in  evasion  of 
the  exemption  laws  of 
their  domicil.    36:582. 

§  2.  Right  of  creditor  in  personal  servicea 
of  debtor. 

Subjecting  earnings  not  yet  due.     21:623. 

Contracts  to  pay  an  insolvent  debtor  wages 
in  advance  for  his  services. 
21:624. 

Where  the  debtor  gives  his  time  and  labor 
to  the  business  of  another 
generally.     21:624. 


U96 


DECEASED  LEGATEE— DEDICATION,  I  a. 


Exceptions  and  limitations.     21:628. 
Profits  on  farm  caused  by  debtor's   labor. 

21:629. 
Improvements  on  wife's  land.     21:631. 


DECEASED  LEGATEE. 


Who  is,  see  Wills,  200. 


DECEDENTS. 


Administration  of  Estates  of, 
tors  and  Administrators. 

Homestead  in  Property  of,  see 
IV.  b. 


see  Execu- 
Homestead, 


DECEIT. 

See  Fraud  and  Deceit. 


DECEPTIVE   CREDITS. 

Bank's  Liability  for  Procuring,  see  Banks, 
286-288. 


DECISIONS. 


Effect  of  Amendment  of  Constitution  on, 
see  Constitutional  Law,  28. 

Change  of,  as  Affecting  Contract,  see  Con- 
stitutional Law,  II.  g,  1,  6,  (1),  (b). 

Of  Associations  or  Religious  Societies,  Con- 
clusiveness of,  see  Courts,  I.  d. 


DECLARATIONS. 


Evidence  of,  see  Evidence,  X. 
In  Pleadings,  see  Pleading,  II. 


DECOY. 

Editorial  Notes. 
Offense  by  stealing  decoy  letter.     1:104* 


DECREE. 


See  Judgment. 


DECREE    NISI. 


In  Divorce  Suit,  see  Divorce  and  Separation. 
52-54;    Evidence,   1235. 


DEDICATION. 

I.  Mode  and  Effect. 

a.  In  General. 

b.  By  Map  or  Plat. 

c.  Who  may  Dedicate. 
II.  Acceptance. 

m.  Revocation;  Abandonment;  Reverter. 
rV.  Editorial  Notes. 

Impairment  of  Contract  of,  see  Constitu- 
tional Law,  1127. 

By  Corporate  Directors,  see  Corporations, 
247. 

Ejectment  for  Land  Dedicated  as  Street, 
see  Ejectment,  23,  25. 

Presumption  of  Intention  to  Dedicate  Pass- 
way,  see  Evidence,  713. 

Evidence  by  Former  Agent  as  to  Intent  to 
Dedicate,  see  Evidence,  1777. 

Of  Land  as  "Levee,"  see  Levee,  2. 

Joining  Donor  in  Injunction  against  Im- 
proper Use  of  Land,  see  Parties,  214. 

Purchaser  Bound  by,  see  Vendor  and  Pur- 
chaser, 89,  90. 

Of  Hunting  Grounds,  see  Waters,  40. 


I.  Mode  and  Effect, 
a.  In  General. 

1.  A  railroad  corporation  cannot  acquire 
title  to  or  an  easement  in  land  by  common - 
law  dedication.  Lake  Erie  &  W.  R.  Co.  v. 
Whitham,  155  111.  514,  40  N.  E.  1014, 

28:  612 

2.  In  order  to  constitute  a  common-law 
dedication,  the  owner's  acts  and  declara- 
tions must  be  deliberate,  unequivocal,  and 
decisive,  manifesting  a  positive  and  unmis- 
takable intention  permanently  to  abandon 
his  propertv  to  the  public  use.  Hogue  v. 
Albina,  20  Or.  182,  25  Pac.  386,  10:  673 

3.  The  actual  use  of  land  may  be  devoted 
to  public  purposes  without  deed  or  writing 
of  any  character,  and  may  be  proved  by 
acts  showing  an  intention  to  make  the  do- 
nation, and  an  acceptance  and  use  of  it  by 
the  public  for  that  purpose.  Campbell  v. 
Kansas  City,  102  Mo.  326,  13  S.  W.  897, 

10:  593 

4.  In  order  to  constitute  a  dedication  by 
parol,  there  must  be  some  acts  proved  evinc- 
ing a  clear  intention  to  dedicate  the  land  to 
the  public  use.  Hogue  v.  Albina,  20  Or. 
182,  25  Pac.  386.  10:  673 

5.  The  facts  that  very  little  has  been 
done  to  adorn  land  claimed  to  have  been 
dedicated  by  the  originator  of  a  summer 
resort  for  park  purposes,  and  that  that 
little  was  done  by  the  originator  himse^, 
who  exercised  some  control  over  the  land, 
are  not  of  much  weight  to  show  absence  of 
intention  to  dedicate.  Attorney  General  v. 
Abbott,  154  Mass.  323,  28  N.  E.  346, 

13:  251 
Right  to  attach  restrictions. 

6.  In  dedicating  lands  to  the  public,  the 
dedicator  may  attach  such  reasonable  re- 
strictions to  their  use  by  the  public  as  he 


DEDICATION,  1.  b. 


997 


may  see  fit.    Church  v.  Portland,  18  Or.  73, 
22  Pac.  528,  6:  259 

Shown  by  use. 
Presumption  from  Possession  and  Use,  see 

Evidence,  714,  715,  720. 
See  also  supra,  3. 
For  Editorial  Notes,  see  infra,  IV. 

7.  A  public  square  in  a  town  or  village, 
which  for  more  than  eighty  years  has  been 
treated  as  such  by  the  county  court  of  the 
county,  and  recognized  as  such  by  the  mu- 
nicipal authorities  of  the  town,  and  used  as 
such  by  the  court  and  public  generally,  must 
be  considered  as  dedicated  as  a  public  square 
for  the  use  of  the  public.  Sturmer  v.  llan- 
dolph  County  Ct.  42  W.  Va.  724,  26  S.  E. 
532,  .36:  300 

8.  Dedication  of  land  for  a  highway  is 
not  shown  by  the  fact  that  for  eight  years 
the  land  was  used  by  the  public  generally 
for  travel,  without  either  consent  or  objec- 
tion on  the  part  of  the  owner.  San  Fran- 
cisco V.  Grote,  120  Cal.  59,  52  Pac.  127, 

41:335 

9.  No  dedication  for  the  purpose  of  a 
highway  can  be  inferred  by  the  public  use, 
for  more  than  twenty  years,  of  the  cov- 
ered surface  formed  by  timbers,  planks, 
and  earth  over  a  canal  feeder  belonging  to 
the  state.  The  land  being  appropriated  for 
use  as  a  canal  feeder,  a  grant  for  highway 
purposes  could  not  be  made,  and  a  dedica- 
tion for  such  purposes  therefore  cannot  be 
presumed.  Donahue  v.  State,  112  N.  Y. 
142,  19  N.  E.  419,  2:  576 

10.  Not  merely  the  strip  actually  traveled 
will  be  presumed  by  reason  of  the  public 
use  to  be  dedicated  for  a  street,  where  the 
street  is  already  laid  out  on  each  side  of  the 
premises,  but  it  will  be  presumed  that  the 
owner  intended  to  dedicate  a  strip  the  full 
width  of  the  street.  Marion  v.  Skillnian, 
127  Ind.  130,  26  N.  E.  676,  11:  55 

11.  A  common-law  dedication  of  a  high- 
way is  shown  by  the  record  of  the  board 
of  supervisors  of  the  county  showing  the 
presentation  of  a  petition  by  the  owner  of 
the  land  to  have  the  way  established,  fol- 
lowed by  an  acceptance,  survey  and  user 
of  the  road  for  more  than  thirty  years,  to- 
gether with  evidence  that  the  owner  always 
intended  the  road,  which  was  opened  to 
reach  his  sawmill,  to  be  a  public  highway. 
People  ex  rel.  ITart  v.  Marin  County,  103 
Cfal.  223,  37  Pac.  203,  26:  659 
Effect. 

Effect  of,  on  Dower,  see  Dower,  15. 
For  Editorial  Notes,  see  infra,  IV. 

12.  Although  a  common-law  dedication  of 
land  does  not  pass  the  legal  title  thereto  out 
of  the  party  making  it,  yet  it  is  sufficient 
to  defeat  an  action  at  law  for  the  recovery 
of  the  possession  of  the  property  as  against 
those  who  are  using  it  in  accordance  with 
the  object  and  purpose  for  which  it  is  dedi- 
cated. Meier  v.  Portland  Cable  R.  Co. 
16  Or.  500.  19  Pac.  610,  1:  856 

13.  The  question  of  a  dedication  of  land 
for  street  purposes  cannot  be  raised  by  a 
village  in  proceedings  to  condemn  an  ease- 
ment over  it  for  a  village  street,  as  the 
Tillage  concedes  the  owner's  right  when  it 


institutes   a   proceeding    to    take   it   away. 
Re  Olean,  135  N.  Y.  341,  32  N.  E.  9    17:  640 

14.  A  dedication  to  the  public  of  a  portion 
of  land  which  is  subject  to  a  purcUase- 
money  mortgage  will  be  superior  to  the 
claim  of  the  mortgagee,  if  he  accepts  a  re- 
conveyance in  satisfaction  of  the  mort- 
gage. Archer  v.  Salinas  City,  93  Cal.  43, 
28  Pac.  839,  16:  145 
Diversion  to  other  use. 

See  also  Public  Grounds. 

For  Editorial  Notes,  see  infra,  IV. 

15.  The  legislature  has  no  power  to  divert 
land  dedicated  to  a  specific,  limited,  and 
definite  public  use  to  any  other  purpose  in- 
consistent with  such  use.  St.  Paul  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.  63  ]Minn.  330,  63 
N.  W.  267,  65  N.  W.  649,  68  N.  W.  458, 

34:  184 

16.  A  portion  of  a  parcel  of  land  dedi- 
cated for  a  public  park  cannot  be  devoted 
to  the  establishment  of  a  public  highway 
if  the  result  will  be  to  cut  the  dedicated 
tract  into  small  parcels,  and  destroy  their 
utility  for  the  purpose  for  which  the  tract 
was  dedicated.  Riverside  v.  Maclean,  210 
111.  308,  71  N.  E.  408,  *  66:  288 

b.  By  Map  or  Plat. 

See   also   infra,   39,   44,   45;    Highways,   8; 

Parks  and  Squares,  1. 
For  Editorial  Notes,  see  infra,  IV. 

17.  A  street  shown  on  that  portion  of  a 
map  representing  the  oldest  part  of  the 
city,  leaving  lots  and  blocks  blank,  is  not 
dedicated  by  the  map,  which  is  intended 
merely  to  show  a  new  portion  or  addition 
not  touched  by  such  street,  in  which  the 
lots  and  blocks  are  marked, — especially 
where  the  maker  has  prior  maps  of  the  por- 
tion including  such  street,  which  do  not 
show  any  street  at  that  place.  Lewis  v. 
Portland,  25  Or.  133,  35  Pac.  256,       22:  736 

18.  The  indication,  upon  a  plat  dedicating 
a  parcel  of  land  for  9,  public  park,  of  roads 
or  pathways,  does  not  justify  the  opening 
of  roadways  across  the  tract  at  places 
other  than  those  indicated.  Riverside  v. 
Maclean,  210  111.  308,  71  N.  E.  408, 

66:  288 

19.  A  village  plat  showing  a  strip  of  land 
100  feet  wide  on  each  side  of  a  railroad 
track,  but  which  is  not  marked  or  noted  on 
the  plat  as  donated  or  granted  to  the  rail- 
road company  which  would  be  necessary  to 
make  a  conveyance  thereof  under  111.  Rev. 
Stat.  chap.  109,  §  3,  cannot  be  made  to  oper- 
ate as  such  couveyance  by  the  aid  of  proof 
of  contemporaneous  or  subsequent  acts  of 
the  parties  tending  to  show  dedication 
thereof  as  part  of  the  right  of  way.  Lake 
Erie  &  W.  R.  Co.  v.  Whitham,  155  111.  514,  40 
N.  E.  1014,  28:  612 

20.  A  dedication  of  land  for  a  graveyard 
is  shown  where  the  proprietors  of  the  land 
marked  it  on  a  plat  as  "donated  for  grave- 
yard," and  the  plat  was  used  for  making 
sales  of  other  land,  while  the  public  ac- 
cepted the  use  thus  indicated  by  burying 
their  dead  on  the  land  for  about  ten  years. 


^8 


DEDICATION,  I.  c. 


Campbell  v.  Kansas  City,  102  Mo.  326,  13 
S.  W.  897,  10:593 

Extent  of  dedication. 
Title    Remaining   in    Abutting    Owner,    see 

Boundaries,  20. 
Reservation  of  Easement,  see  Highways,  43. 

21.  Failing  to  indicate  the  width  of  a  road 
shown  upon  a  recorded  plat  with  reference 
to  which  lots  are  sold  does  not  invalidate 
the  dedication,  but  such  width  will  be  de- 
termined, in  the  absence  of  a  statutory  rule, 
by  the  character  or  extent  of  the  user  by 
the  public.  Western  R.  of  Ala.  v.  Alabama 
G.  T.  R.  Co.  96  Ala.  272,  11  So.  483, 

17:  474 

22.  A  street  indicated  on  an  ancient  plat 
may  be  held  to  have  been  dedicated  to  the 
public  for  its  entire  width,  although  as 
found  it  does  not  exactly  correspond  to  the 
calls  on  the  plat,  if  from  ancient  fences 
and  buildings  it  appears  that  the  street 
found  was  a  practical  construction  of  the 
plat.  Madison  v.  Mayers,  97  Wis.  399, 
73  N.  W.  43,  40:  635 

23.  Where  it  is  sought  to  establish  a 
■dedication  by  the  sale,  of  lots  with  reference 
to  a  map  or  plat,  the  extent  of  such  dedi- 
cation is  to  be  determined  from  the  con- 
sideration of  the  whole  map,  the  object  be- 
ing to  ascertain  the  intention  of  the  donor; 
the  cardinal  rule  of  construction  being  to 
.<,'ive  effect  to  the  intention  of  the  party 
as  manifested  by  his  acts.  Hogue  v.  Albina, 
20  Or.  182,  25  Pac.  386,  10:  673 
Selling  lots  with  respect  to  plat  or  map. 
Estoppel    to    Reclaim    Graveyard    by,    see 

Cemeteries,  11. 
JBy   Camp   Meeting    Association,   see   Camp 

Meeting  Associations,  1. 
■Rights    of.    in    Highways,    see    Highways, 

40a^0c. 
See  also  supra,  23;  infra,  50,  51. 

24.  Leaving  land  unsubdivided  upon  a 
plat  with  an  express  deidication  as  public 
ground  not  to  be  occupied  by  buildings  of 
any  description,  or  marking  it  as  a  street 
and  holding  it  out  as  open  ground,  no  build- 
ings, to  purchasers,  is  equivalent  to  a  dedi- 
cation for  public  use,  and  creates  a  restric- 
tion against  the  erection  of  buildings  there- 
on. Chicago  V.  Ward,  169  111.  392,  48  N.  E. 
•927,  38:  849 

25.  Persons  who  purchased  lots  with  re- 
spect to  a  plat  showing  a  park  dedicated 
to  the  use  of  the  public  are  entitled  to  en- 
force their  rights  to  have  the  tract  kept 
open  for  the  public  use.  Riverside  v.  Mac- 
lean, 210  111.  308,  71  N.  E.  408,  66:  288 

26.  An  intention  to  dedicate  land  for 
parks  is  shown  where  a  corporation  formed 
for  establishing  a  summer  resort  procures 
land  and  records  plats  thereof  with  open 
spaces  left  thereon  marked  "park,"  copies 
of  which  are,  for  the  purpose  of  selling 
lots,  hung  in  public  places  and  distributed 
about  the  country  as  circulars,  and  assur- 
ances are  freely  given  by  those  having 
<hargo  of  the  sale  that  the  parks  shall  al- 
ways be  kept  open.  Attornev  General  v. 
Abbott,  154  Mass.  323,  28  N.  "E.  346, 

13:  251 

27.  A   dedication   to    the   public   of   land 


for  a  park  is  effected  by  the  owner  of  a 
tract  which  lies  within  an  incorporated 
towni,  if  he  makes  and  records  a  map  by 
which  the  tract  is  subdivided  into  blocks 
and  lots  which  are  bounded  by  streets  con- 
necting with  streets  of  the  town  already 
laid  out,  marks  a  space  thereon  "park," 
and  sells  lots  which,  according  to  the  map. 
face  the  park,  holding  out  its  existence  as 
an  inducement  to  purchasers.  Archer  v. 
Salinas  City,  93  Cal.  43,  28  Pac.  839, 

16:  145 

28.  A  land  company  which,  by  a  quorum 
of  its  directors,  lays  out  open  spaces  or 
parks,  and  designates  them  as  such,  though 
with  some  changes  of  boundaries,  on  all  its 
plans  upon  which  its  sales  of  lots  were 
made,  and  assures  purchasers  that  they 
shall  always  be  kept  open,  dedicates  them, as 
parks  to  the  public,  although  not  much  is 
done  to  adorn  them,  and  all  that  is  done  is 
done  by  the  corporation.  Id. 

29.  A  reference  in  deeds  to  a  uiap  of  an 
addition  to  a  city  cannot  be  taken  as  con- 
stituting a  dedication  of  a  street  marked  in 
a  map  of  the  city  which  is  not  shown  to 
have  been  known  to  the  grantor,  where  the 
latter  had  made  maps  of  the  addition  with- 
out showing  such  streets.  Lewis  v.  Port- 
land, 25  Or.   133,   35  Pac.  256,  22:  736 

30.  Where  the  owner  of  land  lays  it  off 
into  blocks,  lots,  and  streets,  platting  it 
as  an  addition  to  a  city,  and  causes  the 
plat,  although  not  acknowledged  so  as  to 
entitle  it  to  record,  to  be  recorded  in  the 
book  of  deeds  in  the  office  of  the  clerk  of 
the  county  in  which  the  land  is  situated, 
and  sells  and  conveys  any  of  the  lots  or 
blocks  by  a  reference,  in  the  description 
thereof,  to  such  plat,  it  constitutes  an  ir- 
revocable dedication  to  the  public  of  the 
streets  shown  upon  it.  Meier  v.  Portland 
Cable  R.  Co.  16  Or.  500,  19  Pac.  610. 

#     I  1:  856 

31.  Where  the  owner  of  lands  lays  out  a 
town  and  records  a  plat  thereof,  on  which 
streets  are  dedicated  to  the  public,  and  it 
is  sought  to  establish  another  and  different 
dedication  by  the  acts  and  conduct  of  the 
owner  in  exhibiting  to  intending  purchasers 
another  map  prepared  on  the  same  day,  and 
selling  lots  by  reference  to  the  second  plat, 
such  second  plat,  to  have  this  effect,  must 
be  essentially  different  from  the  recorded 
one,  showing  on  its  face  an  intention  on  the 
part  of  the  owner  to  make  an  additional 
dedication.  Hogue  v.  Albina,  20  Or.  182, 
25  Pac.  386,  10:  673 

c.  Who  may  Dedicate. 

Presumption  of  Mortgagee's  Assent  to,  see 
Evidence,  277. 

32.  One  person  cannot  dedicate  to  the 
public  the  lands  of  another  person  without 
the  latter's  consent.  Church  v.  Portland, 
18  Or.  73,  22  Pac.  528.  6:  259 

33.  A  man  cannot  dedicate  for  street  pur- 
poses land  upon  which  he  has  placed  a 
homestead,  so  as  to  devest  the  rights  of  his 
wife  therein.  San  Francisco  v.  Grote,  120 
Cal.  69,  52  Pac.  127,  41 :  335 


DEDICATION,  II.,  III. 


999 


34.  A  married  woman  cannot  dedicate  to 
public  u^e  her  statutory  real  estate  except 
by  joint  deed  of  herself  and  husband  exe- 
<:uted  as  the  statute  prescribes,  or  in  some 
other  wav  provided  by  statute.  Vansandt 
V.  Weir,  109  Ala.  104,  19  So!  424,      32:  201 

35.  The  dedication  of  a  landing  is  not 
shown  by  the  public  use  of  the  place  for 
that  purpose  for  a  period  of  years,  with  the 
<jonsent  of  an  agent  of  a  nonresident  owner, 
where  there  is  nothing  to  show  his  au- 
thority to  make  such  dedication.  California 
Nav.  &  I.  Co.  V.  Union  Transp.  Co.  126  Cal. 
433,  58  Pac.  936,  46:  825 


II.  Acceptance. 

Effect   of  Dedication   upon  Acceptance,   see 
Highways,  33. 

Effect  of  delay  in  accepting. 

36.  Delay  on  the  part  of  a  town  in  using 
land  which  has  been  dedicated  to  it  for  a 
park  will  not  impair  its  right  thereto. 
Archer  v.  Salinas  Citv,  93  Cal.  43,  28  Pac. 
839,  "  16:  145 
Necessity  of. 

Effect  of  User  in   Absence  of  Acceptance, 

see  Highways,  7. 
See  also  infra,  41,  42. 
For  Editorial  Notes,  see  infra,  IV. 

37.  Acceptance  by  public  authorities  is 
necessary  to  create  a  public  way  by  dedica- 
tion. Slater  v.  Gunn,  170  Mass.  509,  49 
2f.  E.  1017,      .  41:268 

38.  Although  acceptance  is  necessary  in 
■case  of  an  offer  to  dedicate,  actual  dedica- 
tion will  vest  title  in  the  public  without  ac- 
•ceptance.  Archer  v.  Salinas  Citv,  93  ('al. 
43,  28  Pac.  839,  *       16:  145 

39.  It  is  not  essential  to  the  validity  of 
the  dedication  of  streets  by  a  recorded  plat, 
that  the  city  authorities  formally  accept  it, 
or  proceed  at  once  to  have  tlie  streets 
■opened  and  improved.  The  dedication  only 
implies  that  the  streets  will  be  used  as  such 
when  the  public  exigencies  require  it;  and, 
imtil  thej-  are  opened  and  improved,  they 
remain  in  abevance.  Meier  v.  Portland  Cable 
R.  Co.  16  Or.  500,  19  Pac.  610,  1:856 

40.  The  express  refusal  of  a  city  to  accept 
ji  plat  with  a  certain  strip  designated 
thereon  as  a  street,  and  the  inclosure  and 
Tise  of  one  end  of  the  strip  as  private 
property,  on  which  the  owners  are  com- 
pelled to  pay  assessments  for  improve- 
ments on  another  street,  preclude  a  tindiiig 
that  this  portion  was  a  public  road  or  street. 
Mahler  v.  Brumder.  92  Wis.  477,  66  X.  W. 
502,  31:695 
What  constitutes. 

Tor  Editorial  Notes,  see  infra,  IV. 

41.  Acceptance  of  a  highway  dedicated  to 
public  use  may* be  effected  by  long-contiimed 
user,  without  the  necessity  of  formal  acts 
of  accfptance  on  the  part  of  the  public 
authorities,  where  the  road  dedicated  is  a 
benefit  to  the  public,  and  not  a  detriment. 
Rilev  V.  Buchanan,  116  Kv.  625,  76  S.  W. 
527."  63:  642 


42.  Use  by  the  public  is  a  suflicient  ac- 
ceptance of  parks  to  complete  a  dedication, 
although  the  town  takes  no  action  in  re- 
gard thereto.  Attoniey  General  v.  Abbott, 
154  Mass.  323,  28  N.  E.  346,  13:  251 

43.  User  by  the  public  of  one  side  only  of 
a  dedicated  street  laid  out  and  mapped  with 
two  tracks,  having  a  watercourse  and 
double  row  of  trees  between  them,  consti- 
tutes an  acceptance  of  the  whole  dedica- 
tion. Southern  P.  R.  Co.  v.  Ferris,  93 
Cal.  263,  28  Pac.  828,  18:  510 

44.  The  adoption  by  a  statute  incorpo- 
rating a  town,  of  a  map  showing  its  limits, 
is  an  acceptance  of  the  dedication  of  a  street 
shown  thereon  and  on  which  abutting  lots 
have  been  sold,  although  the  street  has  not 
been  made  passable  in  all  places.  Webb  v. 
Demopolis,  95  Ala.  116,  13  So.  289,        21:  62 

45.  The  approval  of  the  plat  of  a  proposed 
addition  to  a  city  by  the  common  council 
does  not  constitute  an  acceptance  of  the 
streets  thereon  laid  out,  or  amount  to  an 
act  of  jurisdiction  over  them,  or  impose 
an  obligation  upon  the  city  to  keep  them  in 
repair,  although  such  plat  vests  the  fee  of 
the  streets  therein  described  in  the  city, 
and  the  charter  of  the  city  provides  that  it 
shall  be  unlawful  to  make  or  file  anj'  such 
plat  without  the  approval  of  the  common 
council.  Downend  v.  Kansas  City,  156  Mo. 
60,  56  S.  W.  902,  51:  170 
Extent  of  acceptance. 

See  also  supra,  43. 

46.  An  acceptance,  by  the  public,  of  land 
for  a  public  use,  is  to  be  construed  in  con- 
nection with  the  grant  or  dedication.  Where 
that  clearly  includes  the  premises,  less  evi- 
dence is  required  to  show  that  any  particu- 
lar part  has  bwn  accepted  than  where  it  is 
uncertain  whetlier  there  has  been  more  than 
a  partial  and  limited  dedication.  Attorney 
General  ex  rel.  Adams  v.  Tarr,  148  Mass. 
309,  19  N.  E.  3.^8,  2:  87 

47.  The  acceptance,  by  the  public  or  by 
the  inhabitants  of  a  town,  of  landing  places 
reserved  to  the  public  in  a  grant  by  a  town, 
is  not  to  be  held  to  have  been  limited  to 
those  parts  of  the  lands  so  reserved  which 
were  in  actual  use  as  landing  places,  where 
it  appeared  that  the  parts  thereof  intruded 
upon  by  private  individuals  could  have  been 
fitted  for  and  used  as  landings,  and  that 
they  were  used  by  fishermen  for  the  drj'ing 
of  nets,  and  by  them  and  others  for  passage 
to  actual  landing  place's,  and  similar  pur- 
poses connected  with  landings  and  not  in- 
consistent   tlicrewith.  Id. 


III.    Revocation;     Abandonment;    Reverter. 

Right  to  revoke. 

For  Editorial  Notes,  see  infra.  IV. 

48.  A  nation,  state,  or  municipality  which 
Icdicatps  land  that  it  owns  in  the  site  of 
a  town  to  public  use  for  the  purpose  of  a 
park  is  as  conclusively  estopped  as  a  pri- 
vate proprietor  from  revoking  that  dedica- 
tion, from  selling  the  park,  and  from  ap- 
propriating the   land   which   it  occupies  to 


looa 


DEDICATION.   IV.— DEEDS. 


other  purposes  after  lots  have  ben  sold, 
after  the  town  has  been  settled,  and  after 
the  park  has  been  improved  with  moneys 
raised  by  the  taxation  of  its  residents  and 
taxpayers  in  reliance  upon  the  grant  and 
covenant  which  the  dedication  evidences. 
Davenport  v.  Buffington,  38  C.  C.  A.  453, 
97  Fed.  234,  46:  377 

48a.  The  subsequent  erection  by  the  orig- 
inal owner,  of  a  hotel  encroaching  upon  the 
line  of  a  street,  the  dedication  of  which  had 
become  complete  by  twenty  years'  use,  will 
not  affect  the  public  right.  A  dedication 
once  complete  cannot  be  revoked  by  the 
mere  act  of  the  owner.  Marion  v.  Skillmanj 
127  Ind.  130,  26  N.  E.  676,  11:  55 

49.  A  party  making  a  dedication  of 
streets  can  only  reclaim  their  use  when  the 
object  and  purpose  of  making  it  have  ut- 
terly failed.  Meier  v.  Portland  Cable  R. 
Co.  16  Or.  500,  19  Pac.  610,  1:  856 

50.  Grantees  from  parties  making  a  dedi- 
cation of  land  for  streets,  by  recording  a 
plat  of  an  addition  to  a  city  and  selling 
lots  with  reference  to  it,  had  no  authority 
to  make  a  new  map  or  plat  substituting  a 
new  street  or  way  in  place  of  an  old  one, 
without  the  consent  of  the  purchasers  of 
blocks  and  lots  under  the  former  plat,  and 
of  the  public.  Id. 

51.  The  owner  of  land  which  is  laid  oflf  on 
a  map  in  streets,  blocks,  and  squares,  who 
conveys  lots  with  reference  to  a  certain 
street  marked  on  the  map,  covenanting  that 
such  street  shall  be  left  open  forever,  can- 
not exclude  the  public  use  of  that  street, 
or  demand  compensation  for  any  part  of  it, 
when  taken  for  a  public  road  which  crosses 
it,  although  at  the  time  of  the  dedication 
there  was  not,  and  has  not  at  any  time 
been,  any  local  authority  authorized  to  ac- 
cept the  dedication  of  the  street,  except 
for  a  portion  of  its  width;  and  the  grantee 
of  his  heir  at  law  of  so  much  of  the  street 
as  exceeded  the  width  of  a  lawful  road,  who 
has  had  it  assessed  as  his  property  and  paid 
taxes  on  it,  has  no  greater  right  to  com- 
pensation. Harrison  County  v.  Seal,  66 
Miss.  129,  5  So.  622,  '  3:  659 
Abandonment;    reverter. 

52.  A  strip  of  land  along  the  margin  of 
a  navigable  river,  dedicated  on  a  city  plat 
as  a  "levee,"  is  not  abandoned  by  the  public, 
so  as  to  cause  a  reverter  to  the  original 
dedicators  or  their  representatives,  because 
railroads  have  been  permitted  to  lay  their 
tracks  and  build  depots  upon  it,  and  its 
use  has  been  permitted  for  other  unau- 
thorized purposes,  or  because  river  com- 
merce has  ceased,  and  boats  do  not  land 
\ipon  it,  and  approach  to  the  river  margin 
has  become  diflicult.  McAlpine  v.  Chicago 
G.  W.  R.  Co.  68  Kan.  207,  75  Pac.  73. 

64:  85 
.").'?.  Land  dedicated  to  a  public  ust-  docs 
not  revert  to  the  dedicators  because  of  mi?*- 
use  or  nonuse,  unless  its  use  for  tlie  dedi- 
cated purpose  has  become  impossible,  or  so 
highly  improbable  as  to  be  practically  im- 
possible. Id. 


IV.  Editorial  Notes. 

How  eflfected;  how  shown.    6:  259;*  11:  56* 
Necessity  of  acceptance.     11:  57.* 
How  acceptance   shown.      11:  58.* 
Effect  of  dedication.     11:  58. 
How  intent  of  parties  manifested,     lit 

58.* 
By  platting  and  sale  of  lots.     1:  856;* 

9:  551.* 
For  park  purposes.     10:  215;*  13:  251.* 
Public  user  as  acceptance  of  dedicated  high- 
way.     18:  510. 
Presumption  of,  from  user.     6:  261.* 
Effect  of  dedication  to  public  use.     6:  261.* 
For  street.     1:493;*  2:  56.* 
Estate  created  by.    6:  260.* 
Easement  acquired  by  the  public.     3:  831.* 
Additional  servitude.    3:  831.* 
Effect  of  statutory  dedication.     3:  833.* 
Effect  of  dedication  of  husband's  lands  upon 
wife's     right     of     dower. 
18:  79. 
Irrevocability  of.    11:  58.* 
Restriction  to  particular  use.    6:  260.* 
Restriction  on  use  of  property  dedicated  for 
park  or  square.    1 :  725.* 


DEDUCTIONS. 


From  Sentence,  see  Criminal  Law,  231-233. 
From  Share  of  Distributee,   see  Executor* 

and  Administrators,  IV.  c,  3. 
From  Secured  Claim  against  Insolvent,  see 

Insolvency,  16-21. 
Of  Debts  in  Assessing  Property,  see  Taxes^ 

43-45,  405-414. 


DEED   POLL. 


Covenant  in,  see  Covenant,  86,  92. 
Effect    of    Accepting,    see    Deeds,    34,    73^ 
Limitation  of  Actions,  180. 


DEEDS. 

I.  Form  and  Requisites. 

a.  In  General;  Execution. 

b.  Delivery. 

1.  In  General. 

2.  To  Third  Person. 
II.  Construction;  Effect;  Validity. 

a.  In  General;   Construction. 

b.  Description  of  Parties. 

c.  Description  of  Property  Conveyed, 

d.  What  Passes  by;  Effect. 

1.  In  General. 

2.  Reservations  and  Exceptions. 
c.  Revocation,  Destruction,  etc. 

f.  Failure      of      Consideration;       Re- 
version. 
IH.  Kditorial  Notes. 

Acknowledgment  of,  see  Acknowledgment; 
Conflict  of  Laws,  110;  and  also  infra^ 
III.  §  2. 


DEEDS,  I.  a,  b.  1. 


1001 


Boundaries  under  Provisions  of,  see  Bound- 
aries, II. 

Executed  by  Agent,  see  Contracts,  211. 

Estoppel  by  Failing  to  Notify  of  Forgery  of, 
see  Estoppel,  192. 

Presumption  as  to,  see  Evidence,  269,  270, 
659-667,  721. 

Burden  of  Proving  Knowledge  of  Unre- 
corded Deed,  see  Evidence,  302. 

As  Evidence,  see  Evidence,  IV.  i. 

Parol  Evidence  as  to,  see  Evidence,  1076- 
1079,  1128,  1187-1193,  1203,  1204,   1207. 

Privileged  Communications  Concerning,  see 
Evidence,    1504. 

Admissibility  of  Grantor's  Declarations,  see 
Evidence,  X.  f . 

Sufficiency  of  Evidence  to  Modifv^  see  Evi- 
dence, 2295,  2300. 

Of  Gift,  see  Gift,  12. 

Of  Trust,  see  Assignments  for  Creditors; 
Mortgage,   Especially,  I.   f. 

To  Husband,  see  Husband  and  Wife,  118- 
120. 

To  Wife,  see  Husband  and  Wife,  121,  187- 
192. 

By  Husband  or  Wife  to  Third  Person,  see 
Husband  and  Wife,  II.  f. 

By  Indian,  see  Indians,  8-10. 

By  Infants,  see  Infants,  55,  58,  74^76,  82-84, 
90. 

By  Trustee,  see  Trusts,  139-146. 

On  Judicial  Sale,  see  Judicial  Sale,  II.  b. 

On  Foreclosure,  see  Mortgage,  192. 

Tax  Deeds,  see  Taxes,  500-503,  510. 

Of  Church  Pews,  see  Pews,  3. 

Of  Water  Rights,  see  Waters,  II.  j. 

Power  of  Disposition  in,  see  Powers,  1. 

Recording  of,  see  Real  Property,  II.;  III. 
§§  6-12. 

Delegation  of  Judicial  Power  as  to  Record- 
ing of,  see  Constitutional  Law,  235-240. 

Reformation  of,  see  Reformation  of  Instru- 
ments, 3,  9-13,  and  also  infra,  III. 
§  14. 

Of  Timber,  see  Evidence,  820;  Timber; 
Trial,  155. 

Creation  of  Trust  by,  see  Trusts. 

Devise  of  Land  by  Bequest  of,  see  Wills, 
229. 

As  to  Assignment  for  Creditors,  see  As- 
signments for  Creditors. 


I.   Form   and  Requisites. 
a.    In    General;    Execution.   - 

By  Corporation,  see  Corporations,  96,  121. 

Burden  of  Proof  as  to  Execution,  see  Evi- 
dence,  665. 

Seal  of  County  on,  see  Seal,  5. 

Execution  of  Will,  see  Wills,  I.  b. 

For  Editorial  Notes,  see  infra.  III.  §§  1,  2, 
5,  12. 

Witnesses. 

Necessity   of  Calling,   to   Prove   Execution, 

see  Evidence,  818. 
For  Editorial  Notes,  see  infra.  III.  §  2. 
1.  A  deed   is   effectual  as   a  conveyance, 


although    there    was    but    one    subscribing 

witness.     Dobbin  v.  Cordiner,  41  Minn.  165 

42  N.  W.  870,  4:  333 

Signature. 

Signature  to  Will,  see  Wills,  17-31. 

For  Editorial  Notes,  see   infra,  HI.,   §   2. 

2.  The  letters,  "D.  S.  C,"  written  by  the 
witness  to  a  deed,  whose  name  is  Solomon 
Davis,  may  constitute  a  sufllcient  signature 
as  a  witness.  Devereux  v.  :\IcMahon,  108 
N.  C.  134,  12  S.  E.  902,  12:  205 

3.  A  cross  mark  opposite  a  seal  made  by 
the  grantor  of  a  deed  immediately  under 
a  clause  containing  his  name  and  stating 
that  he  has  "signed  his  name  and  affixed  his 
seal,"  constitutes  a  sufficient  signature,  and 
may  be  construed  as  an  adoption  of  the 
name  in  such  clause  as  a  signature.  Id. 

4.  A  sheriffs  deed  to  which  his  name  is 
affixed  by  another  person  in  his  presence 
and  at  his  request,  and  which  the  sheriff 
then  duly  acknowledges,  is  as  efficacious  as 
though  signed  by  the  sheriff  himself.  Lewis 
V.  Watson,  98  Ala.  479,  13  So.  570,       22:  297 

b.  Delivery. 

1.  In  General. 

Presumption  as  to,  see  Evidence,  659-663. 
Parol   Evidence   as   to,   see   Evidence,    1076, 

1203,  1204. 
Sufficiency  of  Proof  of,  see  Evidence,  2324, 

2325. 
Delivery   of   Mortgage,   see   Mortgage,  5,   6. 
See  also  infra,  102. 
For  Editorial  Notes,  see  infra.  III.  §§  3,  4. 

5.  The  bare  fact  that  a  deed  was  exe- 
cuted in  the  presence  of  a  witness  is  not 
sufficient  to  show  that  it  was  delivered 
during  the  grantor's  lifetime.  Parrot  v. 
Avery,  159  Mass.  594,  35  N.  E.  94,       22:  153 

6.  No  delivery  of  a  deed,  either  absolute 
or  conditional,  can  be  made  without  parting 
at  the  time  with  the  possession  of  it,  and 
with  all  power  and  control  over  it  by  the 
grantor,  for  the  benefit  of  the  grantee.  Por- 
ter v.  Woodhouse,  59  Conn.  568,  22  Atl. 
300,  13:  64 

7.  The  delivery  of  a  deed  may  be  found 
as  a  matter  of  fact  from  the  facts  that 
the  conveyance  was  beneficial  to  the  grantee, 
and  that  he  thereafter  dealt  with  the  prop- 
erty as  owner.  Benton  Land  Co.  v.  Zeitler, 
182  Mo.  251,  81  S.  W.  193,  70:  y4 

8.  Even  tliough  a  valid  delivery  of  a  deed 
had  not  been  made  at  the  time  of  its  execu- 
tion, still  the  grantor  may,  after  he  has 
acquired  complete  knowledge  of  the  facts 
of  the  transaction,  ratify  the  wrongful 
taking  of  the  deed  by  the  grantee,  and 
thereby  perfect  the  title.  Whitney  v. 
Dewey,  10  Idaho,  633,  80  Pac.  1117,     69:  572 

9.  The  delivery  to  the  grantee  of  a  war- 
ranty deed  executed  free  from  any  condi- 
tions or  qualifications  as  to  the  vesting  of 
title  is  absolute,  and  title  vests  at  once, 
although  the  delivery  is  accompanied  by 
a  contemporaneous  parol  agreement  to  the 
effect  that  the  grantee  shall  form  a  cor- 
poration   and    deed    the    property    to    such 


1002 


DEEDS,  I.  b.  2. 


corporation,  and  thereupon  pay  the  grantor 
$1,000  cash  and  deliver  to  him  $5,000  worth 
of  first-mortgage  bonds  of  the  corporation 
secured  on  the  property  so  deeded,  and  the 
deed  is  placed  in  the  hands  of  the  grantee 
to  facilitate  such  transaction.  Id. 

10-11.  A  grantor  cannot,  by  warranty 
•deed  absolute  on  its  face,  and  free  from  con- 
ditions or  restrictions,  convey  such  a  title 
to  his  grantee  as  will  enable  the  grantee  to 
pass  a  good  title  to  a  specific  .corporation, 
and  at  the  same  time  attach  such  parol  con- 
ditions to  the  deed  upon  its  delivery  as  to 
preclude  the  grantee  from  transferring  an 
equally  good  title  to  anj'^  other  person  or 
i'orporation.  Id. 

Necessity;  death  of  grantor. 
For  Editorial  Notes,  see  infra,  IIT.  §  3. 

12.  The  manual  delivery  of  a  deed  is  not 
an  absolutely  essential  requisite  to  its 
-validity,  but  the  delivery  is  complete  when 
an  intention  is  manifest«d  on  the  part  of 
the  grantor  to  make  the  instrument  his 
^leed.  Martin  v.  Flahartv,  13  Mont.  96,  32 
Pac.  287,  "  19:  242 

13.  Death  of  the  grantor  before  delivery 
of  a  deed  of  gift  which  he  has  placed  in 
his  agent's  hands  to  be  delivered  terminates 
the  agent's  authority,  and  a  subsequent  de- 
livery is  invalid.  Peck  v.  Rees,  7  Utah, 
467,  27  Pac.  581,  13:  714 
What  constitutes. 

See  also  supra,  12. 

For  Editorial  Notes,  see  infra,  III.  §  3. 

14.  Delivery  of  a  deed  is  efl'ected  by 
handing  it  to  the  grantee,  who  hands  it 
to  her  brother,  to  be  kept  for  her,  the 
grantor  reserving  no  control  over  it,  and  re- 
taining no  right  to  withdraw  or  cancel  it, 
although  it  is  not  recorded.  Fischer  v. 
Union  Trust  Ck).  138  Mich.  612,  101  N.  W. 
852,  68:  987 

15.  Warranty  deeds  made  bj'  way  of  gift, 
which  are  in  a  box  with  money  and  bank 
books,  are  not  delivered  by  the  grantor 
when  expecting  to  die,  by  giving  the  box  to 
another  person,  saying  that  "the  names  of 
the  persons  who  are  going  to  have  the 
houses  are  on  the  deeds,  and,  if  I  live,  I 
will  talk  further  about  the  contents  of  the 
box;  but  don't  you  open  it  until  after  my 
funeral."  Porter  v.  Woodhouse,  59  Conn, 
.'»68,  22  Atl.  300,  13:  64 

16.  Instruments  were  not  delivered  so 
as  to  confer  any  rights  on  the  beneficiaries 
named  therein,  where  the  maker,  having 
agreed  to  execute  them  upon  the  execution 
by  the  other  parties  thereto  of  certain  other 
instruments,  upon  his  arrival  at  the  ap- 
pointed place  found  the  other  parties  absent 
and  their  instruments  tmexecuted,  and 
where,  under  threats  by  their  attorneys  of 
suit,  financial  niin,  and  disgrace,  he,  being 
without  counsel,  finally,  after  repeated 
urging  extending  far  into  the  night,  -iigned 
them  against  his  will,  and  where,  upon  his 
demand  for  more  time  to  examine  them,  the 
attorneys  promised  that  he  might  return 
and  do  so  the  next  day  and  make  proper 
corrections  wherever  they  were  found  to  be 
incorrect,  and  where  he  merely  left  thein  on 
the  table  without  directions  as  to  delivory, 


and  with  nothing  to  show  any  intention  to 
deliver,  and  the  circumstances  all  tended  to 
rebut  such  intention.  Stokes  v,  Anderson, 
118  Ind.  533,  21  N.  E.  331,  4:  313 

17.  The  delivery  of  a  deed  is  sufficiently 
shown  where  it  was  executed  by  tlie  grant 
or,  who  at  the  same  time  received  back  a 
life  lease  from  the  grantee  under  which  the 
grantor  continued  to  hold  the  property  dur- 
ing life,  although  both  deed  and  lease  were 
afterwards  deposited  in  a  bank  by  the 
grantor,  with  airections  to  redeliver  them 
to  her  if  called  for,  and  in  case  of  her 
death  to  one  of  the  grantees,  who  is  named. 
Martin  v.  Flahartv,  13  Mont.  96,  32  Pac. 
287,  "  19:  242 

18.  No  intention  to  deliver  either  of  two 
deeds  Avhich  remained  in  the  grantor's  pos- 
session unknown  to  the  grantee  until  death, 
and  were  found  among  some  old  papers,  and 
not  among  his  valuable  ones,  is  shown, 
where  they  were  made  at  the  same  time  to 
a  twelve -year-old  son  of  the  grantor,  and 
one  expressly  provided  for  future  delivery, 
while  the  other,  although  silent  on  that 
point,  included  the  family  residence,  and 
no  change  of  possesion  or  control  and  use  of 
the  property  was  ever  made.  Cazassa  v. 
Cazassa,  9&  Tenn.  573,  22  S.  W.  560, 

20:  178 
Delivery  for  record. 
See  also  infra,  26-28. 
For  Editorial  Notes,  .see  infra.  III.  §  5. 

19.  Delivery  of  a  deed  for  record,  though 
not  known  to  the  grantee,  is,  if  followed 
by  his  assent,  a  good  delivery.  Lee  v. 
Fletcher,  46  Minn.  49,  48  N.  W.  456. 

12:  171 

Z.    xo    Third   Person. 

Deed  to  Corporation,  see  Corporations,  200. 
In  Escrow,  see  Contracts,  226;  Escrow. 
For  Editorial  Notes,  see  infra.  III.  §  5. 

20.  The  delivery  of  a  deed  to  a  third  per- 
son, to  be  delivered  to  the  grantee  on  the 
death  of  the  grantor,  transfers  the  title 
subject  to  the  life  interest  of  the  grantor. 
Arnegaard  v.  Arnegaard,  7  N.  D.  475,  75 
N.  W.  797,  41:258 

21.  The  acceptance  of  a  deed  to  minors 
by  their  father  is  a  sufficient  delivery,  the 
conveyance  being  beneficial  to  them.  Rhea 
V.  Bagley,  63  Ark.  374,  38  S.  W.  1039. 

36:  86 

22.  The  delivery  by  a  grantor  to  his  own 
agent  of  a  deed  of  gift  intended  for  one 
who  has  no  knowledge  that  it  was  to  oe 
made  is  not  a  valid  delivery  to  the  latter. 
Peck  V.  Rees,  7  Utah,  467,  27  Pac.  581, 

13:  714 

23.  A  deed  of  gift  does  not  become  opera- 
tive by  delivery  to  an  agent  of  the  grantor 
to  be  delivered  to  the  grantee,  when  it  is 
not  delivered  to  the  latter  until  after  the 
grantor's  death.  Id. 

24.  There  is  a  sufficient  delivery  of  a  deed 
to  the  grantees  where  it  is  given  by  the 
grantors  to  a  third  person,  who  buys  and 
pays  for  the  property  and  retains  the  deed 
in  his  possession  until  his  death,  when  it  is 


DEEDS,  II.  a. 


1003 


recorded  by  the  grantees,  who  take  posses- 
sion of  the  property.  Cook  v.  Patrick,  135 
111.  499,  26  N.  E.  658,  11:  573 

25.  Delivery  of  a  deed  in  escrow  sufficient 
to  pass  title  is  made  where  the  grantor 
turns  the  deed  over  to  his  housekeeper, 
'with  instructions  to  deliver  it  to  the  grantee 
on  his  death,  with  no  apparent  intention  of 
retaining  control  thereof  and  no  subse- 
quent attempt  to  control  or  take  possession 
of  it,  although  it  is  placed  by  her  for  safe- 
keeping, together  with  other  papers  of  hers, 
in  the  grantor's  trunk,  which  is  locked,  and 
the  key  to  which  he  retains  until  his  death. 
Munro  v.  Bowles,  187  111.  346.  58  N.  E.  331. 

54:  865 

26.  There  is  a  sufficient  delivery  of  a 
deed  in  the  absence  of  evidence  to  weaken 
the  force  of  the  facts,  if  the  judge  of  pro- 
bate before  whom  it  is  acknowledged  takes 
it  for  the  purpose  of  recording  it  in  his 
office.  Lewis  v.  Watson,  98  Ala.  479,  13 
So.  570,  22:  297 

27.  The  delivery  of  a  deed  to  his  natural 
child  by  the  grantor  to  the  deputy  clerk  of 
the  court,  with  instructions  to  have  it 
proved  by  the  subscribing  witness  before 
the  clerki  who  was  then  absent  from  the 
office,  and  to  have  it  duly  registered,  is  com- 
plete and  passes  title,  and  cannot  be  de- 
feated by  the  grantor's  subsequently  chang- 
ing his  mind  and  recalling  the  deed  and  de- 
stroying it  before  it  had  been  proved,  al- 
"though  the  grantee  knew  nothing  of  the 
deed  or  of  its  recall.  Bobbins  v.  Eascoe, 
120  N.  C.  79,  26  S.  E.  807,  38:238 

28.  AVhere  a  man  who  had  for  months  con- 
-fiidered  the  matter  and  consulted  with 
friends,  declaring  his  intention  to  convey 
lands  to  his  minor  son.  executed  a  deed  and 
delivered  it  to  a  neighbor,  saying  to  him, 
*'You  take  that  deed  and  file  it  for  record," 
-and,  on  the  latter's  suggestion  not  to  file  it 
at  present,  he  responded,  •'You  take  that 
deed  and  keep  it  safelJ^"  without  either 
adopting  the  suggestion  that  the  recording 
should  be  postponed,  or  intimating  any 
■change  in  his  purpose,  or  any  desire  that 
the  deed  should  be  held  subject  to  his  order 
or  control, — the  delivery  of  the  deed  iiuist 
be  held  to  have  been  absolute  at  that  time; 
and  a  subsequt^it  filing  for  record,  whether 
before  or  after  the  father's  death,  to  be 
merely  the  consummation  of  the  delivery  to 
the  son  as  of  the  date  of  the  delivery  to  the 
neighbor  in  trust,  fttandiford  v.  vStandi- 
ford.  97  Mo.  231,  10  S.  W.  836,  3:  299 
Relation  back. 

2!>.  The  acceptance  by  a  grantee  of  a  deed 
which  has  been  delivered  to  a  stranger  re- 
lates back  to  the  time  of  delivery,  if  the 
rights  of  third  per-sons  have  not  intervened. 
Arncgiuird  v.  Arnegaard,  7  N.  D.  475,  75 
K.  W.  797,  41:  258 


11.  Construction:   Effect;    Validity. 

a.  Tn  General;  Construction. 

-As  Color  of  Title,  see  Adverse  Possession, 
57-62. 


As  Cloud  on  Title,  sec  Cloud  on  Title,  7, 
8,   10. 

Validity  of  Deal  of  Land  Held  Adversely, 
see  Champerty.  TIT. 

By  Cotenant,   see  Cotenancy,  42. 

Execution  of,  under  Duress,  see  Duress,  1,  7. 

Estoppel  by,  see  Estoppel,  II.  a,  and  also 
infra.  III.  §  13. 

Estoppel  to  Rely  on  After-Acquired  Title, 
see  Estoppel,  54-61,  and  also  infra.  III. 
§  13. 

Deed  as  Mortgage,  see  Mortgage,  I.  b. 

Effect  of  Agreement  to  Reconvev,  see  Mort- 
gage, 11-13. 

Distinction  between  Deed  and  Will,  see 
Wills,  12-14. 

Deed  by  Incompetent  Person,  seti  Incom- 
petent Persons ,  20-26. 

Capacity  Necessary  to  Make  Deed,  see 
Wills,  91. 

For  Editorial  Notes,  see  infra.  III,  §§  6-14. 

30.  A  quitclaim  deed  by  the  "heirs"  of  a 
living  person,  who  have  a  remainder  after 
his  life  estate,  is  good  under  a  statute 
making  future  estates  alienable  in  the  same 
manner  as  estates  in  possession.  Defreese 
v.  Lake,  109  Mich.  415,  67  N.  W.  505, 

32:  744 

31.  A  conveyance  to  a  city  in  considera- 
tion of  a  covenant  which  is  ultra  vires  and 
void  is  without  consideration,  and  the  land 
should  be  returned.  Penley  v.  Auburn,  85 
Me.  278,  27  Atl.  158,  21;  657 
Deed  or  bill  of  sale. 

32.  A  deed  of  trees  counted  and  marked 
and  which  are  described  as  standing  on  cer- 
tain described  land,  but  some  of  which  are 
not  on  such  land,  though  the  deed  contains 
a  covenant  of  general  warranty  of  title  and 
provides  for  a  lien  on  the  land  described, 
to  make  good  the  warranty,  constitutes 
only  a  bill  of  sale  of  personalty.  Asher 
Lumber  Co.  v.  Cornett,  22  Ky.  L.'Rep.  569, 
58  S.  W.  438.  56:  672 
Time  of  taking  effect. 

33.  A  present  estate  vesting  at  the  time 
of  delivery  of  the  deetl,  but  taking  effect 
in  possession  at  the  death  of  the  father  and 
mother,  is  conveyed  by  a  grant  by  the 
owner  of  land  and  his  wife  to  their  child 
in  an  instrument  authenticated  as  a  deed 
and  containing  words  of  present  grant  and 
covenants  of  warranty,  although  it  pro- 
vides that  "this  deed  is  not  to  take  effect 
until  the  death  of  the  grantors.  Hunt  v. 
Hunt,  26  Ky.  L.  Rep.  973,  82  S.  W.  998. 

68:  180 
Effect  of  accepting  deed  poll. 

34.  A  deed  poll,  when  accepted  by  the 
grantee,  becomes  the  nuitual  act  of  the 
parties,  and  the  grantee  is  as  much  bound 
by  its  covenants  as  the  grantor  is.  Mid- 
land R.  Co.  v.  Fisher,  125  Ind.  19,  24  N.  E. 
756,  8:  604 
Construction  generally. 

35.  No  rule  can  be  invoked  for  the  con- 
struction of  a  deed  which  tends  to  defeat 
the  intention  of  the  grantor.  Elliott  v. 
Jefferson,  133  N.  C.  207,  45  S.  E.  558, 

64:  135 
•  36.  The  effect  of  an  informal  instrument 


1004 


DEEDS.  II.  b. 


transferring  an  interest  in  real  estate  de- 
pends not  upon  any  particular  words  or 
phrases  found  in  it,  but  upon  the  intention 
of  the  parties  as  collected  from  the  whole 
instrument.  Lemon  v.  Graham,  131  Pa. 
447,  19  Atl.  48,  ■  6:  663 

37.  Courts  should  not  give  a  construction 
to  a  deed  in  direct  conflict  with  that  which 
the  parties  have  themselves  put  upon  it, — 
especially  after  a  time  long  enough  to 
create  prescriptive  rights  thereunder.  Mans- 
field V.  Place,  93  Mich.  450,  53  N.  W.  617, 

18:  39 

38.  Deeds  to  different  purchasers  of  land 
separately  sold  on  the  same  day,  at  the 
same  public  sale  of  town-site  lots,  by  a  pro- 
bate judge  as  trustee,  must  be  held  to  take 
effect  at  the  same  time,  and  be  construed 
together  in  determining  a  conflict  of  title 
between  the  purchasers.  Pearce  v.  Denver, 
13  Colo.  383.  22  Pac.  774,  6:  541 

39.  The  object  for  which  a  religious  so- 
ciety was  incorporated  is  an  important  ele- 
ment in  the  construction  of  a  conveyance  to 
the  society.  Mills  v.  Davison  (N.  J.  Err. 
&  App.)  54  N.  J.  Eq.  659,  35  Atl.  1072, 

35:  113 

Covenant   or  condition. 

What  Changes  Condition  into  Covenant,  see 
Contracts,   687. 

Building  Restrictions  in,  see  Buildings,  46,  47. 

Covenants  in,  Generally,  see  Covenant. 

In  Lease,  see  Landlord  and  Tenant,  10. 

Condition  against  Handling  Grain,  see  Per- 
petuities, 2. 

As  to  Conditions  Subsequent  Generally,  see 
Real  Property,  I.  a,  2. 

See  also  Covenant,  39,  40. 

40.  Conditions  subsequent  are  not  favored 
in  law.  Unless  the  intent  is  clear,  they  will 
be  construed  as  covenants  rather  than  con- 
ditions subsequent.  Boone  v.  Clark.  129 
111.  466.  21  N.  E.  850,  5:  276 

40a.  If  it  be  doubtful  whether  a  clause  in 
a  deed  be  a  covenant  or  a  condition,  the 
courts  will  incline  against  the  latter  con- 
struction. Woodruff  V.  Woodruff  (N.  J.  Ch.) 
44  N.  J.  Eq.  349,  16  Atl.  4,  1:  380 

41.  Where,  annexed  to  the  habendum  of  a 
deed  of  bargain  and  sale,  is  the  clause, 
•'provided,  nevertheless,  and  upon  the  fol- 
lowing conditions,"  that  the  grantor,  if  he 
survive  the  grantee,  shall  have  the  right, 
at  any  time  within  eighteen  months,  to  pur- 
chase back  again  the  property  at  a  valua- 
tion of  disinterested  persons, — it  is  a  cove- 
nant, and  not  a  condition.  Id. 

42.  In  determining  whether  a  provision  in 
a  deed  is  to  be  construed  as  creating  a 
condition  subsequent,  or  a  covenant  against 
the  grantor,  regard  must  be  had  to  the 
intention  of  the  parties.  Post  v.  Weil,  115 
X.  Y.  .301,  22  X.   E.   145,  5:  422 

43.  A  covenant,  and  not  a  condition,  is 
created  by  a  clause  in  a  conveyance  of  land 
for  a  college  ciinipiis.  which  states  that  the 
oonvfvance  is  upon  express  condition  that 
tlie  land  shall  be  devoted  exclusively  as 
part  of  the  campus,  although  another  condi- 
tion is  that  it  siiall  revert  to  the  grantor 
if  abandoned  or  devoted  to  other  uses  be- 
fore a  certain  date,  after  which  a  forfeiture 


is  not   to   occur  under  any   circumstances, 

Los   Angeles    University   v.    Swarth,'  46   C. 

C.  A.  647.   107  Fed.  798,  54:  262 

Habendum. 

Effect  of  Xaming  Assigns  in,  see  Covenant, 

77. 
See  also  supra,  41;  infra,  82. 

44.  A  condition  is  not  created  by  an 
habendum  clause  "to  have  and  to  ho^d 
.  .  .  as  and  for  a  street,  to  be  kept  as  a 
public  highway,"  following  a  granting  clause 
conveying  absolutely  a  portion  of  a  larger 
tract  of  land  which  a  city  was  acquiring  in 
accordance  with  a  resolution  directing  it» 
acquisition  "for  public  use,"  where  the  en- 
tire property  was  immediately  devoted  to 
the  uses  of  a  public  square,  which  could  not 
have  been  done  if  the  strip  was  devoted  to 
street  purposes,  and  the  opening  of  the 
street  would  have  been  profitless  both  to  the 
grantor  and  the  public.  Kilpatrick  v.  Balti- 
more, 81  Md.  179,  31  Atl.  805,  27:  643 

45.  Effect  must  be  given  both  to  the 
granting  clause  and  the  habendum  of  a  deed 
when  it  can  be  done  by  a  reasonable  inter- 
pretation, under  a  statute  which  makes  it 
the  duty  of  the  court  to  carry  into  effect 
the  true  intent  of  the  parties  .so  far  as  it 
can  be  collected  from  the  instrument  and 
as  it  is  consistent  with  the  rules  of  law. 
Rupert  V.  Penner,  35  Neb.  587,  53  N.  W. 
598,  17:  824 

46.  The  habendum  in  a  deed,  whereby  an 
estate  in  land  is  provided  for  a  man  and  his 
wife  and  their  heirs  and  assigns,  may  be  op» 
erative  to  enlarge  the  premises  in  such  deed 
wherein  the  husband  alone  is  granted  an 
estate,  and  to  vest  in  both  husband  and  wife 
an  estate  in  the  land.  McLeod  v.  Tarrant, 
39  S.  C.  271,  17  S.  E.  773,  20:  84ft 
Blanks. 

47.  A  vendor  who  has  executed  and  ac- 
knowledged a  deed  with  the  name  of  the 
grantee  left  blank,  and  delivered  it  to  his 
vendee,  who  fills  up  the  blank,  cannot  ques- 
tion the  title  of  an  innocent  purchaser  for 
value.  McCleerey  v.  Wakefield,  76  Iowa, 
529,  41  N.  W.  210,  2:  52» 

48.  A  deed  in  which  the  grantee's  name 
is  left  blank,  but  in  other  respects  duly  exe- 
cuted; is  void  as  to  the  grantee  or  any 
other  person  with  notice  of  the  fraud, 
where  the  blank  is  filled,  contrary  to  the 
grantor's  instructions,  with  the  name  of  a 
person  not  intended  to  be  the  grantee, 
who  has  full  knowledge  of  the  facts.  State 
V.  Matthews,  44  Kan.  596,  25  Pac.  36, 

10:  308 

49.  A  deed  executed  by  a  married  woman, 
with  the  name  of  the  grantee,  the  amount  of 
the  consideration,  and  the  date  blank,  and 
intrusted  to  her  husband  for  the  purpose  of 
selling  the  property,  is  valid  in  the  hands  of 
a  bona  fide  grantee  for  a  valuable  considera- 
tion. Reed  v.  Morton,  24  Xeb.  760,  40  N. 
W.  282.  1 :  736 

I).  Description  of  Parties. 

See  also  infra,  80. 

50.  Words  <jf  inheritance  are  not  neces- 
-ary    to   ])ass    the    fee   in   a    conveyance   to 


DEEDS,  II.  c. 


1005 


trustees  and  their  successors  in  office  for- 
ever, for  a  charitable  use,  such  as  religious 
worship.  Ro  Sellers  Chapel  M.  E.  Church, 
139  Pa.  61,  21  Atl.  145,  11:  282 

51.  The  term  "personal  representatives," 
in  the  clause  of  a  deed  providing  for  the  se- 
lection, by  tli^  legal  representatives  of  the 
grantee,  of  an  arbitrator,  means  those  who 
succeed  the  grantee  in  the  title  of  the  lands. 
Where  he  devises  the  land  in  trust,  it  means 
the  trustee  and  cestui  que  trust.  Woodruff 
V.  Woodruff  (N.  J.  Ch.)  44  N.  J.  Eq.  349. 
16  Atl.  4,  1 :  380 

52.  A  deed  to  certain  persons,  "commis- 
eioners  of  W.  county,  and  their  successors  lin 
office,  for  the  use  of  said  couniy,"  accepted 
by  an  entry  upon  the  county  records  as  a 
deed  "to  and  for  the  use  of"  said  county, 
gives  the  legal  title  to  the  county,  and  not 
to  the  commissioners,  whei-e  there  was  no 
statute  designating  their  corporate  name  and 
style.  Sumner  v.  Darnell,  128  Ind.  38,  27 
N.  E.  162,  13:173 

53.  Including  the  husband  as  grantee  in  a 
■deed  to  partition  to  the  wife  her  share  of 
property  in  which  she  has  an  luulivided  in- 
terest will  give  him  no  greater  interest  than 
though  the  deed  had  been  to  the  wife  alone. 
€ottrell  v.  Griffitts,  108  Tenn.  191,  65  S.  W. 
397,  57:  332 
Necessity  of  using  word  "heirs"  or  equiva- 
lent. 

For  Editorial  Notes,  see  infra,  III.  §  12. 

54.  The  use  of  the  word  "heirs"  is  not 
necessary  to  create  a  title  in  fee,  in  New 
Hampshire,  when  there  is  an  unqualified 
grant  or  reservation  of  land.  Smith  v.  Fur- 
bish, 68  N.  II.  123,  44  Atl.  398,  47:  226 

55.  The  assignment  under  seal  of  all  a 
giantee's  "right,  title,  claim,  interest,  and 
property  whatever  in  and  to"  a  deed,  on  the 
back  of  which  it  is  written,  and  which  gave 
the  grantee  an  estate  in  fee  simple,  is  suffi- 
cient to  transfer  the  fee,  without  the  use 
of  the  word  "heirs"  or  its  equivalent.  Lemon 
V.  Graham,  131  Pa.  447,  19  Atl.  48,  6:  663 
Deed  to  "children,"  "issue,"  or  "heirs." 

56.  The  words  "child,"  "children,"  and 
"issue,"  in  a  deed  creating  a  trust  for  a  girl 
during  life,  and  after  her  death  for  her 
child  or  children,  with  a  certain  disposition 
of  the  property  in  case  of  her  death  with- 
out living  issue,  will  not  include  an  illegiti- 
mate child  born  several  years  after  the  mak- 
ing of  the  deed,  where  its  language  does  not 
plainly  show  such  an  intention.  Johnstone 
V.  Taliaferro,   107  Ga.  6,  32  S.  E.  931, 

-  45:  95 
'>7.  An  adopted  child  who,  by  the  decree 
of  adoption,  is  declared  to  be,  to  all  legal 
intents  and  purposes,  the  child  of  a  woman 
who  adopts  him,  and  for  the  [purposes  of  in- 
heritance and  all  other  legal  incidents  and 
consequences  the  same  as  if  born  to  her  in 
lawful  wedlock,  is  entitled,  on  her  death, 
to  premises  conveyed  to  her  during  her 
natural  life,  with  remainder  "to  her  child  or 
children  that  may  be  living  at  the  time  of 
her  decease,"  and  in  default  of  such  child  or 
children  to  her  "heirs  generally."  since,  if 
the  adopted  child  is  not  a  '•child''  within 
the    mciining  of   the   deed,   he   is   lier   "heir 


generally."     Buttcrficld  v.   Sawver,   187  111. 
598.  58  N.  E.  602,  .     '  52:75 

58.  A  conveyance  to  the  "heirs"  of  the 
grantor's  son,  who  has  children  then  living, 
reserving  to  him  a  life  estate  after  life 
estates  in  the  grantor  and  another,  is  a 
present  grant  of  the  fee  to  the  children. 
Heath  v.  Hewitt,  127  N,  Y.  166,  27  N.  E. 
959.  13:  46 
Unborn  children. 

See  also  infra,  81. 

59.  A  deed  to  a  son  of  the  grantor  and 
"his  own  brothers  and  sisters"  gives  no  in- 
terest to  a  child  born  a  short  time  after  the 
execution  of  the  deed.  Morris  v.  Caudle,  178 
111.  9,  52  N.  E.  1036,  44:  489 

60.  A  deed  executed  before  the  birth  of  a 
child,  but  not  delivered  until  after  the  birth 
and  also  the  death  of  the  child,  conveys  no 
interest  either  to  the  child  or  those  claim- 
ing under  the  child,  although  the  child 
would  have  been  a  grantee  if  in  esse  when 
llie  instrument  took  effect.  Id. 
Fictitious  grantee. 

61.  A  deed  to  a  fictitious  grantee  con- 
veys no  title.  Wiehl  v.  Robertson,  97  Tenn. 
458,   37   S.  W.   274,  39:  423 

c.  Description  of  Property  Conveyed. 

Mistake    in    Description    of    Property    De- 
vised, see  Wills,  232-236. 
See  also  infra,  78. 
For  Editorial  Notes,  see  infra.  III.  §  11. 

62.  A  conveyance  of  a  certain  number  of 
undivided  acres  out  of  a  tract  of  land  is  not 
void  for  uncertainty,  (iratz  v.  Land  &  R. 
Improv.  Co.  27  C.  C".  A.  305,  53  U.  S.  App. 
499,  82  Fed.  381,  40:  393 

62a.  A  tract  of  land  is  sufficiently  de- 
scribed in  a  deed  by  referring  to  it  by  the 
number  of  its  government  patent,  in  which 
it  is  definitely  described.  Wheeler  v.  Clark 
(Tenn.)  85  S.  W.  258,  69:  732 

63.  Title  to  a  proportionate  share  of  land 
under  water,  depending  on  title  to  the  up- 
land, will  pass  by  a  deed  of  a  certain  num- 
ber of  undivided  acres  out  of  the  tract  of 
upland  bordering  on  the  water.  Gratz  v. 
Land  &  R.  Improv.  Co.  27  C.  C.  A.  305,  53 
U.  S.  App.  499,  82  Fed.  381.  40:  393 

64.  A  complete  description  by  metes  and 
bounds  of  land  between  a  certain  block  and 
the  north  line  of  a  quarter  section  does  not 
limit  a  conveyance  to  that  land,  when  fol- 
lowed by  a  sentence  declaring  that  it  is  all 
that  land  that  lies  beneath  the  north  line  of 
such  quarter  section  and  two  blocks  named, 
only  one  of  which  is  mentioned  in  the  pre- 
ceding description  bj'  metes  and  bounds. 
Lake  Erie  &  W.  R.  Co.  v.  Whitham,  155  III. 
514.  40  N.  E.  1014,  28:  612 

65.  The  imdivided  half  of  the  premises 
only  will  be  held  to  have  been  conveyed  by 
a  deed  the  original  of  which  is  lost  and 
the  produced  copy  of  which  describes  a  par- 
cel with  metes  and  bounds,  beginning,  "lui- 
divided  half  of  one  and  also  one  other  par- 
cel of  land,"  etc.,  and  the  evidence  shows 
that  the  wcaIs  "undivided  half  of"  were 
underlined.  Hubbard  v.  Greeley,  84  Me.  340. 
24  Atl.  799,  17:511 


1006 


DEEDS,  II.  d,  1. 


66.  Tlip  word  "divided,"  in  a  deed  of  one 
divided  fourth  of  certain  property,  will  not 
be  rejected  so  as  to  make  a  deed  of  an  un- 
divided fourth,  where  the  result  would  be 
to  ignore  the  intention  of  the  grantor  by 
passing  an  after-acquired  title.  Ford  v. 
Unitv  Church  Soc.  120  Mo.  498,  25  S.  W. 
394,  *  23:  561 
Map  annexed. 

67.  The  mere  fact  that  a  map  bearing  a 
prior  date  and  showing  a  road  not  men- 
tioned in  a  deed  is  annexed ,  to  a  subse- 
quent deed  is  not  sufficient,  to  show  that  the 
earlier  conveyance  was  made  with  reference 
to  the  road.  Ilaberman  v.  Baker,  128  N.  Y. 
253,  28  X.  E.  370,  13:  611 
Reference  to  other  instrument. 

For  Editorial  Xotes,  see  infra,  III.  §  11. 

68.  Real  estate  is  sufficiently  described  in 
a  conveyance  by  reference  for  identification 
to  another  deed  .specifically  mentioned  there- 
in which  accurately  describes  it.  Rupert  v. 
Penner,  35  Neb.  587,  53  X.  W.  .598,       17:  824 

d.  What  Passes  by;   Effect. 

1.   In   General. 

Effect  of  Covenants  in  Deed,  see  Covenant. 

Effect  of  Deed  on  Wife's  Right  of  Dower, 
see  Dower,  17-23. 

Interest  Passing  Sufficient  to  Maintain 
Ejectment,  see  Ejectment,  11,  14. 

Estoppel  to  Claim  After-Acquired  Interest, 
see  Estoppel,  54-61 ;  and  also  infra,  HI. 
§  12. 

Convej-ance  of  Ferry  Franchise  by,  see 
Ferry,    1.3. 

Estates  by  Entirety  Created  by,  see  Hus- 
band "and  "Wife*  68-79. 

Kinds  of  Estates  Created,  see  Real  Prop- 
erty. I. 

Effect  of  Release,  see  Release,  8. 

Rights  of  Purchasers  Generally,  see  Vendor 
and  Purchaser. 

Efl'ect  of  Quitclaim  Deed,  see  Vendor  and 
Purchaser,  99,  105-110. 

Riparian  Rights  by  Deed  of  Upland,  see 
Waters,  203. 

See  also  Real  Property  I.;  Wills,  III.  g. 

69.  A  voluntary  conveyance  of  a  right  of 
way  to  a  railway  company  gives  no  greater 
right  than  a  condemnation  under  the  stat- 
ute would  confer.  Missouri,  K.  &  T.  R.  Co. 
v.  Molt,  98  Tex.  91,  81  S.  W.  285,  70:  579 

70.  A  grant  of  land  over  a  coal  mine  will 
carry  a  right  of  action  for  removal  of  the  stir- 
faee  support,  the  effect  of  which  does  not  be- 
come apparent  until  after  the  transfer.  Noon- 
an  v.  Pardee.  200  Pa.  474,  .50  Atl.  255,  .55:  410 

71.  A  deed  of  land  by  the  owner  of  a  de- 
terminable fee  which  has  already  terminated 
convevs  notliing.  Slegel  v.  Herbine,  148  Pa. 
236.  23  Atl.  990,  15:  .547 

72.  A  conveyance  of  partnership  real  es- 
tate by  the  surviving  partner  as  such  will 
not  in  a  court  of  equity  have  the  effect  of 
(•(inveving  only  his  individual  interest,  al- 
though upon  it-;  face  the  deed  purports  to 
convey  only  such  interest,  and  is  joined  in 
liv  the  wife  of  the  grantor.  Dver  v.  Morse, 
10  Wash.  492,  39  Pac.  138,         '  28:  89 


73.  A  conveyance  of  land,  including  parts- 
of  a  certain  road,  whenever  another  street 
named  is  opened  and  said  road  is  closed,  is 
not  a  conveyance  to  begin  in  futuro,  but 
is  a  conveyance  of  the  title  subject  to  the 
public  easement,  and  becomes  absolute  as 
soon  as  the  easement  ceases  by  the  opening^ 
of  the  other  street.  Baldwin  v.  Trimble,^ 
85  Md.  396,  37  Atl.  176,  36:  489- 

74.  If  a  grantee  in  a  deed  of  indenture  of 
bargain  and  sale  purporting  to  be  inter 
partes  accepts  the  deed  and  the  estate 
therein  conveyed,  it  is  his  deed,  as  well  as 
that  of  the  grantor,  though  not  sealed  and 
delivered  by  him.  Woodruff  v.  Woodruff, 
(X.  J.  Ch.)  -44  X.  J.  Eq.  349,  16  Atl.  4, 

1:380 

75.  A  deed  delivered  to  the  grantee  on 
agreement  to  return  it,  or,  if  it  should  be 
recorded,  to  reconvey  the  land  upon  certain 
conditions,  conveys  the  legal  title,  although- 
the  parties  mistakenly  suppose  that  it  does 
not.    Darling  v.  Butler,  45  Fed.  332,    10:  469- 

76.  A  grantee  by  accepting  a  deed  poll  is 
deemed  to  have  entered  into  an  express  un- 
dertaking to  perform  a  condition  contained 
in  the  deed,  such  as  an  obligation  to  main- 
tain fences.  Hickev  v.  Lake  Shore  &  M- 
S,  R.  Co.  51  Ohio  St.  40,  36  X.  E.  672, 

23:  39ft 
Appurtenances. 

Under  Deed  of  Cotenant,  see  Cotenancy,  45. 
Easements  as  Appurtenant,  see  Easements,. 

II.  c. 
Under  Grant  from  State,  see  Waters,  134. 

77.  Incorporeal  rights  held  as  appurte- 
nant to  land  will  pass  upon  a  conveyance  of 
the  dominant  tenement,  although  not  men- 
tioned in  the  deed  of  conveyance.  Mitchell 
V.  D'Olier  (X.  J.  Err.  &  App.)  68  X.  J.  L. 
375,  53  Atl.  467,  59:  94» 
Amount  of  land. 

See  also  supra,  63-65. 

78.  A  deed  granting  to  a  railroad  company 
the  right  of  way  for  its  railroad,  and  the- 
right  to  construct  said  road  agreeably  to  and 
in  accordance  with  the  railroad  incorpora- 
tion laws  of  the  state,  without  naming  th& 
width  of  the  track  granted,  will  give  the 
grantee  a  strip  as  wide  only  as  it  actually 
takes  and  uses,  and  not  as  wide  as  it  is- 
allowed  to  take  by  the  railroad  incorpora- 
tion laws.  Ft.  Wayne,  C.  &  L.  R.  Co.  v. 
Sherry,  126  Ind.  334,  25  X.  E.  898,  10:  48 
Estates  for  life  or  In  fee. 

Rule  as  to,  in  Shelley's  Case,  see  Real  Prop- 

ertv,  I.  b;  Wills,  III,  g,  3. 
Under  Will,  see  Wills,  III.  g,  2. 
See   also   supra,   58;    infra,   91;    Curtesy,  9. 

79.  The  equitable  estate  of  a  cestui  que 
trust  is  an  equitable  fee  simple,  where  the 
trustee  or  feoffee  to  use  has  the  entire  fee- 
simple  estate  at  law.  Cornwell  v.  Wulff,  14* 
:\ro.  542,  50  S.  W.  439,  45:  53 

80.  A  deed  to  grantor's  daughter  and  her 
husband  and  "their  bodily  heirs"  tuider  the- 
Illinois  statutes,  vests  a  life  estate  in  the 
first  takers,  with  a  remainder  in  fee  in 
the  heirs  of  the  bodies  ot  both.  Atherton 
V.  Roche,  192  111.  252,  61  X.  E.  357,     55:  591 

81.  A  deed  to  one  during  his  natural  life» 


DEEDS,  II.  (1.  ■-> 


lOOT 


who  is  to  (leoj  or  will  the  lands  to  the 
bodily  heirs  of  anotlier,  the  former  having 
the  discretion  of  allotting  the  lands  as  he 
may  see  proper,  confers  a  life  estate  on  the 
first  taker,  with  vested  remainder  to  the 
heirs  of  the  other  person  mentioned,  which 
will  open  to  let  in  afterborn  children;'  and 
the  interests  of  children  dying  before  the 
life  tenant  will  pass  to  their  heirs.  Fort 
Jefferson  Improv.  Co.  v.  Dupoyster,  108  Kv. 
792,  51   S.  W.  810,  48:  537 

82.  A  life  estate  to  a  certain  person,  with 
remainder  to  his  children,  is  conveyed  by  a 
deed  in  which  the  premises  declare  that  the 
grantor  does  "hereby  grant,  sell,  and  con- 
vev"  unto  such  person,  while  the  habendum 
clause  is  to  have  and  to  hold  unto  him  "for 
and  during  the  term  of  his  natural  life,  and 
at  his  decease  the  same  shall  descend  in 
equal  shares  to  his  children."  Rupert  v.  Pen- 
ner,  35  Neb.  587,  53  N.  W.  598,  17:  824 

83.  A  provision  that  a  trustee  of  a  mar- 
ried woman  shall  convey  the  premises  to  her 
husband,  his  heirs  or  assigns,  if  she  dies 
without  having  disposed  of  the  property  or 
directed  its  disposal  by  will  or  otherwise, 
does  not  prevent  lier  from  taking  an  abso- 
lute equitable  fee  simple  under  the  deed 
which  creates  the  trust,  where  it  conveys  to 
the  trustee,  his  heirs  and  assigns  forever,  in 
trust  for  her  separate  use,  free  from  her 
husband's  control  and  debts,  and  subject  to 
disposal  as  she  shall  direct  or  request,  or 
shall  by  will  or  other  writing  direct  or  ap- 
point. Cornwell  v.  Wulff,  148  Mo.  542,  50 
S.  W.  439,  45:  53 
Interest  in  fee  or  easement. 

Creation  of  Easement  by,   see   Easements. 
II.  a. 

84.  An  interest  in  fee,  and  not  merely 
an  easement,  is  conveyed  by  a  deed  to  a 
railroad  company,  its  successors  and  as- 
signs, forever,  to  have  and  to  hold  for  all 
purposes  mentioned  in  the  act  of  incorpora- 
tion. United  States  Pipe-Line  Co.  v.  Dela- 
ware, L.  &  W.  R.  Co.  (N.  J.  Err.  &  App.) 
»)2  N.  J.  L.  254,  Atl.  759,  42:  572 
Effect  of  recitals. 

Implied  Covenant  by,  see  Covenant,  10. 
Notice  from  Recitals  in,  see  Notice,  10. 
For  Editorial  Notes,  see  infra.  III.  §  11. 

85.  An  estate  granted  by  deed  cannot  be 
expanded  by  recitals  or  statements  of  the 
grantor  made  in  a  later  deed,  to  the  injury 
of  an  intervening  title.  Whitnev  v.  Wheeler 
Cotton  Mills,  151  Mass.  396,  24  "N.  E.  774, 

7:  613 

86.  The  general  language  of  a  deed  with 
covenants  sufficient  to  pass  the  estate' of  the 
grantor  is  not  limited  by  a  clause  which  re- 
cites that  it  is  intended  to  convey  absolute- 
ly all  the  interest  of  his  wife,  who  is  named 
tht'rein  as  one  of  the  grantors,  but  who  has 
onlv  an  inchoate  dower  interest  therein. 
Davenport  v.  Gwilliams,  133  Ind.  142,  31  N. 
E.  790,  22:  244 

2.  Reservations  and  ExcepMons. 

Of  Flo  wage,  Effect  on  Boundary,  see  Bound- 
aries, 54. 
By  Parol,  see  Contracts,  178. 


Restrictive  Covenants  in  Deed,  see  Cove- 
nant, I.  b. 

Creation  of  Tenancy  in  Common  by  Ex- 
ception, see  Cotenancy,  3. 

Creation  of  Easement  by,  see  Easements, 
14-20,  48,  56,  57,  87. 

Nature  of  Easement  Reserved,  see  Ease- 
ments, 2. 

Ejectment  by  Virtue  of,  see  Ejectment,  12. 
26,   27. 

Estoppel  bv  Reservations,  see  Estoppel,  47- 
49. 

Restriction  in  Deed  for  Highway,  see  Higli- 
ways,  10. 

Of  Farm  Crossing,  see  Railroads,  70. 

For  Editorial  Notes,  see  infra.  III,  §§  9,. 
10. 

87.  What  will  pass  by  certain  descriptive 
words  in  a  grant  will  be  excepted  by  the 
same  descriptive  words  in  an  exception. 
Mitchell  V.  D'Olier  (N.  J.  Err.  &  App.)  68 
N.  J.  L.  375,  53  Atl.  467,  59:  94» 

88.  The  right  to  minerals,  timber,  and  a 
mill-site,  reserved  to  the  grantor  in  a  con- 
veyance of  certain  parcels  of  land  within 
a  larger  tract,  will  not  pass  bj'  his  subse- 
quent convej'ance  of  the  whole  tract,  ex- 
pressly deducting  therefrom  the  parcels  of 
land  previously  conveyed.  Kincaid  v.  Mc- 
Gowan,  88  Ky.  91,  4  S.  W.  802,  13:  289 

89.  A  reservation,  in  a  conveyance  of  right 
of  way,  of  any  use  to  the  grantor,  will  not 
be  presumed  in  the  absence  of  any  provision 
therefor.  Herriman  v.  Roberts,  119  N.  Y. 
37,  23  N.  E.  442,  7:  226 

90.  A  forfeiture  of  a  grantor's  rights  in 
land  excepted  from  a  deed,  but  not  distinctly 
located,  does  not  result  from  his  failure  to 
exercise  his  power  of  selection  in  a  reason- 
able time,  where  the  other  party  has  not 
been  damnified  by  the  delav.  Smith  v.  Fur 
bish,  68  N.  H.  123,  44  Atl.  398,  47:  226 

91.  The  estate  reserved  to  a  grantor  is 
not  a  life  estate  only,  where,  in  a  deed  of 
land  on  one  side  of  a  river,  he  reserves  the 
right  to  build  a  dam  against  it,  with  the 
accompanying  right  of  liowage,  and  also  to 
an  acre  of  land  in  the  immediate  vicinity  of 
the  end  of  the  dam,  although  liis  language 
is  "reserving  to  myself,"  witliout  using  any 
words  of  inheritance.  Smith  v.  Furbish.  68 
N.  If.  123.  44  Atl.  398,  47 :  226- 
Of  minerals. 

Reservation   of  Oil  or  Gas,   see   Mines,   58. 

59. 
Effect  of  Resen'ation  of  Mining  Rights,  see 

Mines,  45. 
See  also  infra,  89. 

92.  A  grantor  of  the  fee  of  the  surface  of 
land  may  reserve  an  estate  in  fee  in  the 
minerals,  and  each  estate  will  be  subject  to 
the  law  of  descent,  devise,  and  conveyance. 
Kincaid  v.  McGowan,  88  Ky.  91,  4  S.  W.  91. 

13:  289^ 

93.  A  deed  by  the  grantee  of  an  undivid- 
ed interest  in  certain  land,  of  all  the  "sur- 
face" of  such  land,  retaining  the  right  to 
make  an<l  maintain  on  the  land  such  open- 
ings as  may  be  necessary  for  ventilation,, 
drainage,  and  taking  out  of  all  the  coal,, 
without   liability    for   injuries   to   the   sur- 


1008 


DEEDS,  II.  e— III.  a. 


face  or  anything  thereon  by  reason  of  min- 
ing such  coal,  and  the  right  to  remove  the 
t^ame  given  the  owner  of  the  other  half 
interest  in  such  land,  who  had  previously 
<onve3'ed  to  the  grantor  all  the  coal  in,  on, 
ur  imderlying  his  undivided  half  of  such 
land,  with  the  right  to  make  and  main- 
tain openings  for  ventilation,  drainage,  and 
taking  out  all  the  coal,  conveys  to  the 
grantee  the  surface  only,  and  does  not  pass 
the  grantor's  right  to  oil  and  gas  in  and 
under  such  land.  Williams  v.  South  Penn 
Oil  Co.  52  W.  Va.  181,  43  S.  E.  214,  60:  795 
Of  right  to  build  dam  or  flood  land. 
Of  Right  to  Build  Wharf,  see  Waters.  206. 

94.  An  exception,  and  not  merely  a  reser- 
vation, is  created  by  a  deed  of  land  on  one 
side  of  a  river  "reserving"  to  the  grantor  the 
right  to  build  a  dam  across  the  river  at  any 
point  against  the  land,  Avith  the  right  of 
flowage  caused  by  the  dam,  and  also  an 
acre  of  land  in  the  immediate  vicinity  of 
the  dam,  as  the  effect  of  the  provision  does 
Tiot  depend  upon  the  choice  of  the  particular 
word,  but  upon  the  nature  and  effect  of  the 
provision  itself.  Smith  v.  Furbish,  68  N. 
H.    123,   44   Atl.   398,  47:226 

95.  A  right  of  election  belonging  to  a 
grantor  who  has  reserved  or  excepted  out  of 
his  grant  a  piece  of  land  and  the  right  to 
build  a  dam  and  the  accompanj'ing  right  of 
tlowage,  without  defining  the  location  by 
the  deed,  does  not  terminate  by  his  failure 
to  exercise  it  during  his  own  life,  but  con- 
tinues to  his  heirs.  Id. 

96.  The  right  of  location  belongs  to  the 
grantor  under  a  deed  of  land  on  one  side  of 
a  river,  from  which  he  reserves  the  right  to 
build  a  dam  at  any  point  against  the  land, 
with  the  right  of  flowage  resulting  there- 
from, and  also  reserving  or  excepting  an 
acre  of  land  fronting  on  the  river,  in  the 
immediate  vicinity  of  the  dam.  Id. 

97.  The  uncertainty  of  a  reservation  or 
exception  of  the  right  to  build  a  dam  at 
any  point  against  lands  conveyed,  with  the 
right  of  flowage  and  also  1  acre  of  land  in 
the  immediate  vicinity  of  the  end  of  the 
<Iam,  does  not  render  the  provision  void,  as 
the  exercise  of  a  right  of  election  by  the 
grantor  will  remove  the  uncertainty.  Id. 

98.  No  reservation  of  a  right  to  flood 
lands  conveyed  by  a  railroad  company,  with 
water  of  a  river  backed  up  by  the  faulty 
construction  of  the  enibanknient  on  which 
its  tracks  are  laid,  will  be  implied  from  the 
mere  fact  that  the  conveyance  was  made 
after  the  embankment  was  finished.  Sellers 
V.  Texas  C.  R.  Co.  81  Tex.  458,  17  S.  W. 
32,  13:G57 

e.  Revocation.  Destruction,  etc. 

I'roceeding  to  Set  Aside  as  one  in  Item,  see 

Action  or  Suit,  65. 
Joining  Causes  of  Action  to  Set  Aside  Deed 

and  Will,  see  Action  or  Suit.  94,  101. 
Setting  Aside  for  Incompetency  of  Grantor, 

see  Contracts,  802. 
Setting  Aside  for  Duress,  see  Duress,  1. 
Jurisdiction  of   Suit  to  Cancel,  see  Courts, 

.')6:  Equity,  .')7-50. 


Disaffirmance  of  Deed  by  Infant,  see  In- 
fants, 55,  75,  76,  82-84,  90. 

Validity  of  Arbitration  in  Suit  by  Infant 
for,  see  Infants,  58. 

Cancelation  of  Deeds  not  Mentioned  in 
J'leading,  see  Judgment,  59. 

Laches  Preventing,  see  Limitation  of  Ac- 
tions, 12. 

Revocation  of  Deed  of  Trust,  see  Trusts,  I. 
e. 

Rescission  of  Deed  or  Contract  to  Purchase 
Land,  see  Vendor  and  Purchaser,  I.  e. 

Effect  of  Revocation,  see  Waters,  521. 

See  also  supra,  27;  Trusts,  54. 

99.  The  power  to  revoke  a  deed  during  the 
grantor's  life  may  be  reseiVed  by  express 
provisions  of  the  deed.  Ricketts  v.  L<)uis- 
ville,  St.  L.  &  T.  R.  Co.  91  Ky.  221,  15  S.  W. 
182,  11:422 

100.  The  revocation  of  a  deed  under  a 
power  reserved  therein  is  not  defeated  by 
the  fact  that  the  acknowledgment  and  re- 
cording of  the  instrument  of  revocation  as 
required  by  the  terms  of  the  reservation 
are  not  provided  for  by  statute, — especially 
where  it  has  been  actually  acknowledged  by 
a  county  clerk,  and  recorded  by  him.        Id. 

101.  The  destruction  of  an  unrecorded 
deed  by  the  grantee,  and  a  conveyance,  at 
his  request,  to  a  third  person,  by  the  grant- 
or, will  not  give  to  the  new  grantee  a  legal 
title,  although  it  will  give  him  an  equitable 
interest  on  which  he  may  require  a  convey- 
ance of  the  legal  title  from  the  grantee  in 
the  destroyed  deed.  Russell  v.  Meyer,  7 
N.  D.  335,  75  N.  W.  262,  47:637 

102.  The  regaining  of  possession  of  a  deed 
by  the  grantor  after  he  has  made  a  delivery 
intended  to  be  absolute,  to  a  third  person, 
to  take  effect  on  his  death,  does  not  pre- 
vent the  deed  from  being  operative.  Arne- 
saard  v.  Arnegaard,  7  N.  D.  475,  75  N.  W. 
797,  41:258 

f.  Failure  of  Consideration;  Reversion. 

Parol  Evidence  as  to  Consideration,  see  Evi- 
dence, 1187-1193. 

Consideration  of  Deed  Attacked  for  Fraud, 
see   Fraudulent  Conveyances,  11. 

For  Editorial  Notes,  see  'infra,  TEL  §§  7, 
8. 

103.  Removal  of  a  county  seat  fifty-si.K 
years  aft«r  its  location  on  land  conveyed 
for  such  use  does  not  make  a  total  failure 
of  consideration  which  will  cause  a  reversion 
to  the  grantor.  Sumner  v.  Darnell,  128 
Ind.   38,   27   X.   E.   162,  13:  173 


III.   Editorial  Notes. 

a.  Form  and  requisites. 

§  I.  Generally. 

Equitable    relief    against    forfeiture    of    es- 
tate.    69:  833. 
§  2.  Execution. 

Essentials  to  execution.     13:  676.* 
Execution  of,  by  corporation.     12:  588.* 
Estoppel  of  grantor  to  denv  proper  execu- 
tion.   2:  530.* 


DEEDS,  III.  (Ed.  Notes.) 


1009 


Signature  by  mark  or  cross.     12:  205;*  22: 

372. 
Signing  by  proxy.     22:  297. 
Attesting  witness.     4:  333.* 
Power  of  counsel  to  take  acknowledgment 

of.     45:499. 
Acknowledgment    by    married    woman.      3: 

826;*  11:193.* 
§  3.  Delivery  and  acceptance. 
Necessity  of  delivery  of.    4:  313;*  12:  171;* 

13:  676.* 
Sufficiency  of  delivery.     12:  171.* 

Necessity    of    actual    manual    delivery. 

12:  171.* 
Effect  of  retention  by  vendor  till  his 

death.    12:  172.* 
Necessity  of  formal  delivery."  12:  173.* 
Necessity  of  intention   to  deliver.     12: 

173.* 
Delivery  in  escrow.     12:  175.* 
Presumption  of  delivery.     12:  175;*  13: 
677.* 
As  to  time  of  delivery.     12:  176.* 
Deed  itself  as  evidence  of  delivery.    12: 

176.* 
Parol  evidence  as  to  delivery.     12:  176.* 
Acceptance  by  grantee.     12:  177.* 
Recording  by  grantee.     12:  177.* 
Effect  of  delivery  m  escrow  as  to  bona  fide 
purchaser     from     grantee 
who    has    wrongfully    ob- 
tained   and    recorded    the 
deed.       17:511. 
Acceptance  of.    1:  381;*  12:  177.* 
Undelivered  deed  as  memorandum  to  satis- 
fy statute  of  frauds.     22: 
273. 
§  4.  —  Delivery  to  third  person,  or  record, 

or  delivery  tor  record. 
Delivery  to  person  previously  authorized  or 
designated  by  grantee.  54: 
865. 
Delivery  to  person  not  previously  author- 
ized    or     designated     by 
grantee;       recording.     54: 
867. 
General  rule  as  to  delivery  to  third  per- 
son.   54:  867. 
In  general.     54:  867. 
When  not  to  be  delivered  to  gran- 
tee   until    after    grantor's 
death.     54:  869. 
Hequisites  on  part  of  grantor.     54:871. 
General  statement.    54:  871. 
Particular    instances    and    illustra- 
tions.   54:   875. 
Delivery  without  directions  to 
await  grantor's  death'.  54: 
875. 
Delivery     with     directions     to 
await  grantor's  death.   54: 
878. 
Deed   remaining   within    ph5'S- 
ical  power  of  grantor.   54: 
882. 
Effect  of  grantor's  purpose  to 
avoid  his  obligations.    54: 
884. 
Reservation  of  life  estate  as  il- 
lustrating    grantor's     in- 
tent.   54:884. 
L.R.A.  Dig.— 64. 


Recording   or   delivery   for   record. 
54:  884. 
In  general;   presumption  from 

record.    64:  884. 
Grantor's  intent.     54:  885. 
Effect    of    return    of    deed    to 
grantor.     54:  887. 
Acceptance;  how  and  when  deed  takes 
effect;  status  of  title.  64: 
888. 
Necessity   of   acceptance.     54:  888. 
What  sufficient  to  show  actual  ac- 
ceptance;  effect  of  assent 
or  dissent.  54:  889. 
Different  theories   with   respect  to 
acceptance.    54:  890. 
In   general;    their   relation    to 
the  time  when,  and  man- 
ner   in    whicn.    the    deed 
takes  effect.    54:  890. 
Theory  of  relation  back:     54: 

891. 
Presumption      of     acceptance. 

54:  892 
Cases   illustrative    of   the   na- 
ture of  the  instrument  and 
of  the  time  when  it  takes 
effect.     54:  899. 
Right  of  the  grantor  to  revoke. 

54:  903. 
Rights   of  third  persons.     54: 

904. 
Grantor's      interest      in,      and 
rights  respecting  the  prop- 
erty.    54:  909. 
§  5.  Grantee. 

Infant  en  ventre  sa  mere  as  grantee  in  deed. 
44:  489. 
Ordinary  conveyances.     44:  489. 
Conveyances    of    uses,    trusts,    remain- 
ders, etc.    44:  490. 
Fictitious    name    as    affecting    validitv    of. 

39:  423. 
Third  person  authorized  to  fill  in  name  of 
grantee.    2:  529.* 

b.    Construction,   effect,   validity. 

Conveyance  of  Mortgaged  Premises,  see 
Mortgage.  VIII.  §  11. 

Effect  of  Tax  Deeds,  see  Taxes,  VI.  §  31. 

§  6.  Generally. 

Land  grants  as  contracts  within  constitu- 
tional provision  against 
impairment.      10:  406.* 

Deed-poll  defined.    8:  604.* 

Rule  for  construction.     13:  319.* 

Parol  evidence  to  explain  latent  ambiguity. 
3:  805.* 

When  deed  absolute  on  face  cannot  be  con- 
strued as  a  mortgage.  1: 
240.* 

Transactions  constituting  a  sale,  and  not  a 
mortgage.     1:  241.* 

Deeds  to  married  woman,  generally.  3: 
801,*  857.* 

To  secure  support  for  life.     3:  836.* 

Effect  of  conveyance  of  real  property  by 
surviving  partner.  28:  135. 

Conveyance  of  mill,  what  passes.     2:  285.* 

Conveyance  of  property  to  be  acquired  in 
the  future.    4:  398.* 


1010 


DEEDS.  III.  (Ed.  Notes.) 


Validity  of  conveyance  of  property  in  ex- 
pectancy.    9:  477.* 

Grant  of  water  power,  generally.     67:   369. 

How  far  grant  of  mill  includes  water  rights. 
58:  487. 

Adverse  possession  under  ancient  deeds.  10: 
388.* 

§  7.  Consideration. 

As  to  Consideration  for  Contracts,  Gener- 
allv,  see  Contracts,  Vlll. 
§§'3-20. 

Validity  of  voluntary  deed.     13:  640.» 

"Valuable  consideration"  construed.  2: 
530.' 

Relinquishment  of  security  as  consideration. 
2:  530.* 

Recital  of  receipt  of  consideration.     3:  804.* 

Promise  to  support  grantee  as  consideration. 
3:  836;*  13:  640.* 

Parol  evidence  to  show  consideration.  3: 
803;'  4:  427.* 

§  8.  —  Recital  of  money  consideration  as 
contractual. 

Consideration    clause    as    importing   owner- 
ship or  terms  of  contract. 
68:  925. 
As   importing   ownership    of    purchase 

money.     68:  925. 
As  importing  an  interest  in  land  con- 
veyed.    68:  925. 
As  indicating  time  of  payment.   68:  925. 

Action  to  recover  consideration.     68:  926. 
Recited  consideration  as  ground  of  lia- 
bility.    68:  926. 
Right-  of  action.  '  68:  026. 
Assumpsit.    68:  926. 
Right  of  action  as  affected  by  the  stat- 
ute of  frauds.     68:  927. 

Acceptance  of  deed  as  creating  obligation  to 
pav  consideration.  68: 
928. 

Parol  evidence  to  varv  consideration  clause. 
68:  928. 

Consideration  as  contractual  in  action  for 
breach  of  covenant.  68: 
931. 

Recital  of  consideration  as  contract  in  writ- 
ing within  statute  of  limi- 
tations.    68:  931. 

§  9.  Reservations;  exceptions;  conditions. 

As  to  Covenants  Restricting  Use  of  Prop- 
erty. *op  Covenants.  V.  §  3. 

Reservations  and  exceptions  in.  2:  87;*  13: 
289.* 

Implied  reservation.     13:  657.* 

Exception    and    reservation    of    easements. 
20:  631. 
Of  light  and  air.     22:  541. 
Of  right  of  way.  5:  279:*   13:  657.* 

Conditions  in  deeds,  generally.    4:  373.* 

Rules  that  conditions  must  be  express  and 
certain.     13:  173.* 

Covenants  distinguished  from  conditions  in. 
1:  380:*    5:  422.* 

What    are    conditions    subsequent.      5:  422.* 

Effect  on  a  condition  subsequent  of  a  suc- 
ceeding law  or  act  of  God 
preventing  its  perform- 
ance.    21 :  58. 

Equitable  relief  against  forfeiture  of  es- 
tate for  breach  of  con- 
dition.    69:  836,   841,    842. 


Validity  of  condition  forbidding  sale  of  in- 
toxicating liquor  upon 
premises.  4:  373.* 
Condition  in  deed  that  land  is  to  be  used 
for  a  specified  charitable 
or  quasi  public  purpose. 
19:  262. 
Forfeiture  of  estate  bv  breach  of  condition, 

2:  .526.* 
Forfeiture    for   breach    of    condition    as    to 
manufacture    or    sale    of 
liquors.    5:  423.* 
Right  of  re-entr^'  on  condition  broken.     5: 
424.* 
Availability   of   remedy   by   or   against 
assignees.    5:  424.* 
Liability  of  grantee  upon  a  condition  in  deed 
poll.     23:  396. 
Doctrine  against  liability  upon  the  cove- 
nant.   23:  "397. 
Contrary  doctrine.     23:  399. 
§  10.  —  Transferability  of  right  of  entry  for 

condition  broken. 
Nature  of  the  right.     60:  750. 
Rule  against  transferability.    60:  754. 

Before  breach  of  condition.     60:  754, 
After  breach  of  condition.     60:  758. 
Exceptions  to  rule.     60:  760. 
Statutory.    60:  760. 

After    breach    where    the    law    against 
maintenance     is     not     in 
force.     60:  762. 
As  to  devises.     60:  762. 
Easements  on  condition.    60:  764. 
S  II.  Recitals;  references;  description. 
Recital  of  money  consideration  as  contrac- 

"  tual.     68:  925. 
Receipts    in,    as    evidence    of    payment    a» 
against  third  parties.    29: 
740. 
Recitals  in,  as  basis  of  implied  covenants  of 

title.     18:  343. 
Reference  in,  as  constructive  notice.   1 :  192.* 
Reference  to  another  deed  or  to  a  map.    4r 

425.* 
Effect  of  use  of  words  "more  or  less"  in  de- 
scription.   4:  526.* 
General  and  particular  description.    4:  426.* 
Effect  on  description  of  map  or  plat  referred 

to.     13:  142.* 
§  12.  Effect  of  deed  in  partition  as  distin- 
guished from  ordinary  deed. 
Deed   to   person   other   than   cotenant.     57: 

332. 
Warranty.    57:  333. 

In  general.    57:  .333. 

Implied  warranty  between  those  hold- 
ing by  descent.     57:  .3.34. 
Implied   warranty  between   those  hold- 
ing by  purchase.     57:  336. 
Estoppel  to  set  up  after-acquired  title.     57: 

337. 
Estates  acquired  by  partition  deed  between 
parties     holding    different 
estates.     .37:  337. 
Words  of  inheritance  as  necessarv  to  vest 

fee.     57:  3.38. 
Rights   of   subsequent    purchasers.     57:  338. 
Clianging   title    from    descent    to    purchase. 

57:  3.39. 
Effect  as  revoking  previous  will.     57:  339. 
Failure' of  wife  to  join  in  deed.    57:  340. 


DEER— DEFENSES. 


ion 


Deed  by  person  under  disability.    57:  340. 

Execution  of  deed.     57:  340. 

Deed  not  executed  by  all  the  parties  to 

it.     57:340. 
Defective  execution.     57:  340. 

lOll'ect  on  judgment  and  mortgage  liens.  57: 
340. 

Parol  evidence  to  show  nature  of  deed.  57: 
341. 

§  13.  Estoppel  by  deed;  after-acquired  title. 

Estoj)|)ol  by  deed,  generally.     5:  121.* 

Estoppel  by  recitals  in.     5:  278.* 

in  married  woman's  deed.    22:  780. 

When  after-acquired  title  inures  to  benefit 
of  gi'antee.    2:  335.* 

Estoppel  of  married  woman  by  covenant  in 
deed  from  acquiring  supe- 
rior title.     22:  790. 

Effect  of  wife's  joining  in  husband's  deed 
upon  her  title  or  interest 
in  property.     22:782. 

Right  of  grantor  of  mining  claim  to  relo- 
cate same  for'  his  own 
benefit.     50:  186. 

§  14.  Reformation. 

Reformation  of  deed  by  correcting  mistake 
in  descripiion,  boundaries, 
etc.      12:  274.* 

Right  to  relief  in  equity  from  mistake  as  to 
quantity  of  land.    4:  525.* 


DEER. 

As  Game,  see  Game  Laws,  5, 


DE  FACTO. 


Municipality,  see  Bonds,  102. 

Corporations,  see  Corporations,  I.  C. 

Directors,  see  Corporations,  328. 

Grand  Jury,  see  Habeas  Corpus,  25. 

Judge,  see  Judges,  8-12. 

Mouse  of  Repiosentatives,  see  Legislature,  4. 

( )fticors.  see  Officers,  III. 

Effect  of  Paying  Salary  to  De  Facto  Of- 
ficer, see  Officers,  191-104. 

Religious  Corporation,  see  Religious  Socie- 
ties, 2. 

Order  Issued  by  De  Facto  Town,  see  Mu- 
nicipal Corporations,  34. 

Editorial  Notes. 

Who  is  de  facto  officer.     11:  105.* 

De  facto  and  de  jure  officers  distinguished. 
13:  177.* 

De  facto  officers  and  offices  imder  unconsti- 
tutional statutes.    §1:  141. 

Right  of  officer  de  jure  to  salary  for  period 
during  whch  de  facto  has 
acted  and  received  pay. 
19:  089. 

Directors  de  facto.    15:  418. 

De  facto  foreign  corporation.     24:  2&3. 


DEFAULT. 

Judgment  by,  see  Appeal  and  Error,  585, 
586;  Criminal  Law.  188:  Judgment,  1-3, 
16,  40,  55.  272.  .334.  407.  411,  417,  425, 
426,  434,  437;  Statutes,  161. 


Conclusiveness  of  Judgment  by,  see  Judg- 
ment,  99,   100,   127,    129. 

Right  to  Jury  Trial  on,  see  Jury,  9-11. 

As  Affecting  Liability  for  Rent,  see  Land- 
lord and  Tenant,  190. 

Provision  for  Maturity  of  Note  in  Case  of, 
see  Bills  and  Notes,  66-70. 

In  Payment,  Authorizing  Foreclosure  of 
Mortgage,  see  Mortgage,  \^I.  b. 

In  Payment  of  Debt  Collaterally  Secured, 
see  Pledge  and  Collateral  Security,  27, 
31. 

In  Payment,  by  Purchaser  on  Conditional 
Sale,  see  Sale,  122-131. 

Filing  of  Pleading  after,  see  Pleading,  I.  p. 


DEFEASIBLE  FEE. 


Creation  of,  by  Will,  see  Wills,  272,  273. 
See  also  Real  Property,  I.  a,  3. 


DEFENDANTS. 
Parties  Defendant,  see  Parties,  II. 


DEFENSES. 


In  General,  see  Action  or  Suit,  I.  c. 

To  Action  or  Prosecution  for  Assault,  see 
Assault  and  Battery,  II. 

In  .  Disbarment  Proceeding,  see  Attorneys^ 
31-33. 

To  Action  on  Negotiable  Paper,  see  Bill* 
and  Notes,  III.  c. 

To  Action  for  Breach  of  Promise,  see  Breach 
of  Promise,  II. 

Champerty  as,  see  Champerty,  18,  19. 

In  Suit  to  Remove  Cloud  from  Title,  see 
Cloud  on  Title,  II. 

Ultra  Vires  as,  see  Corporations,  IV.  d, 
2. 

To  Liability  as  Stockholder,  see  Corpora- 
tions, 600-606,  618-621. 

To  Guaranty  of  Corporate  Dividends,  see 
Corporations,  724. 

To  Creditors'  Bill,  see  Creditors'  Bill,  10. 

To  Criminal  Prosecution,  Instigation  or  Cim- 
•  sent  as,  see  Criminal  Law,  I.  f. 

To  Action  for  Causing  Death,  see  Death, 
IV. 

To  Action  for  Divorce,  see  Divorce  and  Sepa- 
ration, IV.  , 

To  Ejectment  Suit,  see  Ejectment,  IT.  b. 

What  Excuses  Failure  to  Keep  Electric 
Wires  Properly  Insulated,  see  Electric- 
ity, 28-30.  . 

In  Eminent  Domain,  see  Eminent  Domain, 
5,  6,  213. 

To  Prosecution  for  Obtaining  :Money  by 
False  Pretenses,  see  False  Pretenses, 
12. 

In  Atftion  for  False  Imprisonment,  se<^ 
False  Imprisonment,  III. 

To  Prosecution  for  Gaming,  see  Gaming, 
10. 

To  Prosecution  for  Homicide,  see  Homicide. 


1012 


DEFICIENCY— DEFINITIONS. 


Infancy  as,  see  Infants,  I.  d. 

Fraudulent  Use  of  Label  or  Trade  Name  as, 
see  Injunction,  454-458. 

To  Liability  on  Policy,  see  Insurance,  VI.  e. 

Unavoidable  Accident,  see  Judges,  57. 

Against  Revival  of  Judgment,  see  Judg- 
ment, 405. 

To  Liability  for  Rent,  see  Landlord  and 
Tenant,  190. 

In  Libel  Suit,  see  Libel  and  Slander,  III.  c. 

Illegality  as  Defense  in  Collateral  Matter, 
see  Lottery,  2. 

In  Mandamus  Case,  see  Mandamus,  207- 
219. 

In  Foreclosure  Suit,  see  Mortgage,  VI.  d. 

In  Action  for  Death  of  Fireman,  see  Munici- 
pal Corporations,  461. 

In  Proceedings  to  Abate  Nuisance,  see  Nui- 
sances, II.  d. 

To  Prosecution  for  Illegal  Practice  of  Medi- 
cine, see  Physicians  and  Surgeons,  11- 
13. 

To  Local  Improvement  Assessment,  see  Pub- 
lic Improvements,  200-203. 

Mistake  of  Law  as,  see  Reformation  of  In- 
struments, 14. 

In  Replevin  Suit,  see  Replevin,  II.  b. 

To  Prosecution  for  Seduction,  see  Seduo 
tion,  II. 

To  Action  for  Specific  Performance,  see 
Specific  Performance. 

Violation  of  Sunday  Law  as,  see  Sunday, 
V. 

Against  Liability  for  Delay  in  Delivering 
Telegram,  see  Telegraphs,  99. 

In  Action  for  Trespass,  see  Trespass,  I.  c. 

In  Trover,   see   Trover,  36-38. 

■Usury  as,   see  Usury,  27. 

Who  may  Set  up  Usury,  see  Usury,  40- 
45. 

Due  Process  as  to,  see  Constitutional  Law, 
II.  b,  7,  6,  (2). 

Vested  Right  to,  see  Constitutional  Law, 
160-162. 

IBurden  of  Proving,  see  Evidence,  II.  c. 

?fegation  of,  see  Indictment,  etc.,  II.  c; 
Pleading,  II.  e. 

Necessity  of,  to  Vacation  of  Judgment,  see 
Judgment,   VII.   b.   , 

•Question  for'  Jury  as  to  Validity  of,  see 
Trial,  502. 


■♦♦» 


DEFICIENCY. 

On  Foreclosure,  see  Mortgage,  VI.  i. 

♦-•-♦ 

DEFIKITENESS. 

Of  Charitable  Bequest,  see  Charities,  I.  d. 
Of  Contracts,  see  Contracts,  I.  d,  3. 


DEFINITIONS. 


.M)le  to  read,  sec  Elections,  20. 
Absolute  owner,   see   Insurance,   343. 
Absorb,  see   Insurance,  VI.  b,  3,   e. 
Accident,  see  Accident,  I. 


Accord  and  satisfaction,  see  Accord  and 
Satisfaction,  1. 

Account,  see  Accounts,  I. 

Accrued   water   rights,   see  Waters,   320. 

Active  trust,  see  Trusts,  36. 

Administered,  see  Insurance,  VT.  b,  3,  e. 

Affinity,   see   Affinity;    Judge,s,   29. 

Aged,   see   Homestead,   2. 

Agency,  see  Physicians  and  Surgeons,  21. 

Aggrieved,  see  Appeal  and  Error,  100,  101; 
Intoxicating    Liquors,    164. 

Alimony,  see  Divorce  and  Separation,  56. 

Amalgamation,   see    Corporations,   53. 

Amount  of  value,   see   Corporations,   608- 

And,  see  Corporations,  133. 

Any  asylum,  see  Elections,  35a. 

Any   person,   see   Corporations,   770. 

Approach,   see  Blasting,  5. 

Appropriated,  see  Waters,  326. 

Ascertain,  see  Corporations,  550. 

Assent,  see  Corporations,  289. 

Assignment,  see  Mortgage,  239. 

Assumption  of  risk,  see  Master  and  Serv- 
ant, 261. 

At,  see  Contracts,  321. 

Bailment,  see  Warehousemen,  4. 

Bastard  child,  see  Bastardy,  1. 

Being  in   this  state,   see   Taxes,  624. 

Boatable   waters,   see   Fisheries,   1. 

Bodily    infirmity,    see    Insurance,    549,    550. 

Born  alive,  see  Curtesy,  3. 

Boycott,  see  Conspiracy. 

Business,  see   Corporations,   842. 

By-laws,    see   Municipal    Corporations,    73a. 

Calendar  month,  see  Time,  9. 

Canvass,  see  Elections,  334. 

Capital  stock  paid  in,  see  Corporations,  310. 

Carried    on,    see    Malicious    Prosecution,    3. 

Cause,  see  Clerks.  8. 

Charitable   institution,    see    Taxes,    I.    f,   3. 

Charitable  trust,  see  Charities.  14. 

Chartered  bv  the  legislature,  see  Railroads. 
50. 

Chartered   train,  see  Carriers,  1125. 

Charterer,  see  Receivers,  73. 

Chief  magistrate,  see  Extradition,  21. 

Child,  see  Cruelty;  Deeds,  57;  Descent  and 
Distribution,  42;   Wills,  191-193. 

Citizens,  see  Aliens,  15;  Constitutional  Law, 
390-392. 

City,  see  Contracts,  328a. 

Claim,  see  Claims. 

Clerk,  see  Corporations,  559. 

Commerce,  see  Harbors,  4. 

Commodities,  see  Taxes,  562. 

Company,  see  Insurance,  115. 

Competing    railroads,    see    Conspirac},    176. 

Concurrent   jurisdiction,   see   Courts,   30-34. 

Conspiracy,  see  Conspiracy,  1,  la. 

Contiguous,  see  Election  Districts,  12;  Mu- 
nicipal Corporations,  18. 

Contingent   claim,   see   Corporations,   557. 

Controversies,  see  Courts,  337. 

Convenient  and  contiguous  territory,  see 
Election  Districts,  12. 

Conviction,   see   Criminal   Law,   254a. 

Copy,  see  Copy. 

Corporations,  see  Corporations,  1;  Stat- 
utes. 311. 

County,  see  Assumpsit.  52. 

Credits,   see   Taxes,  405. 

Crime,  see  Insurance,  979-981. 


DEFINITIONS. 


1018 


Cruol  treatment,  see  Divorce  and  Separa- 
tion, 17. 

Current   wages,  see  Exemptions,  32. 

Day,  see  Time,  5. 

Debt,  see  Banliniptcy.  13;  Corporations. 
323,  324,  5.i0:  Debt,  3;  Executors  and 
Administrators,  15G;  Garnishment,  51; 
Homestead,  24;   Taxes,  488. 

Debt  contracted,  see  Corporations,  323,  324. 

Deceased  legatee,  see  Wills.  200. 

De  facto  corporation,  see  Corporations,  22, 

De  jure  corporation,  see  Corporations,  2. 

Delusion,  see  AVills,  92a,  92b,  96. 

Demand,  see  Executors  and  Administra- 
tors, 156;  Extortion,  2. 

Dependent,  see  Insurance,  171. 

Devastavit,  see  Executors  and  Ac^pini8tra• 
tors,  76a. 

Dimension   stone,   see   Contracts,   357. 

Direct,  see  Insurance,  303a. 

Discontinuance,  see  Dismissal  or  Discon- 
tinuance, la. 

Discount,   see   Banks,   277. 

Disease,  see  Insurance,  548,  549. 

Dismissal,  see  Dismissal  or  Discontinuance, 
la. 

Document,  see  Discovery  and  Inspection, 
12. 

Domestic  purposes,  see  Waters,  312. 

Dormant   partner,   see  Judgment.  239. 

Due  process  of  law,  see  Constitutional  Law, 
614,  854. 

Dues,  see  Corporation,  551. 

Duly,  see  Agreed  Case;   Duly. 

Easements,  see  Easements.  1. 

Educational  institution,  see  Taxes,  I.  f,  3. 

Election,   see   Corporations,   215. 

Elector,  see  Elections.  80. 

Elements,   see   Landlord   and   Tenant,   22. 

Eligible,  see  Officers,  19,  3.5. 

Employees,  see  Corporations,  811;  Mechan- 
ics' Liens,  35;   Receivers,  48. 

Encumbrance,  see  Encumbrances. 

End.  see  Contracts,   309. 

Ended,  see  Malicious  Prosecution,  31. 

Entire  feet,  see  Insurance,  1135. 

Established  business,  see  Eminent  Domain, 
270. 

Estate,  see  Real  Property,  la. 

Executed  trust,  see  Trusts.  43. 

Executory  trust,  see  Trusts,  42. 

Ex  post  facto  law,  see  Constitutional  Law, 
95. 

Fair  and  equitable  value,  see  Municipal 
Corporations,  405. 

Family,  see  Contracts,  334;  Family;  Home- 
stead, 3. 

Firearms,  see  Carrying  Weapons,  5.     , 

First  class,  see  Vendor  and  Purchaser,  37. 

Fixed    liability,   see   Bankruptcy.    32-35. 

Fixtures,  see  Mechanics'  Liens,  45. 

Forthwith,  see  Chattel  Mortgage,  47;  Forth- 
with. 

Franchise,  see  Franchise;    Taxes,  346. 

Garbage,  see  Garbage.  2. 

Generation.  §ee  Civil  Rights.  25. 

Gift,   see   Public  Moneys.   152. 

Good   faith,   see   Corporations.  620. 

Good   health,   see   Insurance,  5.'J4a. 

Goods,  see  License.  74. 

Good  title,  see  Vendor  and  Purchaser,  35. 

Goodwill,  see  Goodwill. 


Grain,  see  Warehousemen,  6. 

Gross  immorality,  see  Immorality. 

Gross    negligence,   see   Negligence,   30. 

Guest,  see  Innkeepers,  3. 

Hawkers,  see  Peddlers,  6,  9,  10. 

Hazardous   adventure,   see   Insurance,    1044. 

Healthy  condition,  see  Contracts,   740. 

Heir,  see  Death,  24;  Deeds,  57;  Descent 
and  Distribution,  25,  42;  Husband  and 
Wife.  157;  Insurance,  1185-1187;  Wills, 
180-184. 

High  water  mark,  see  Waters,  93. 

Hirer,  see  Receivers,  73. 

Homestead,  see  Homestead,  61.  * 

House,  see  Gaming,  7. 

Housekeeper,  see  Housekeeper. 

House  of  ill- fame,  see  Disorderly  Houses,  3. 

Huckster,  see  Peddlers.  13. 

Hurt,  see  Insurance,  555,  556. 

Immediate  notice,  see  Insurance,  894-898. 

Impost,  see  Taxes,  233. 

Improvements,   see  Mechanics'   Liens,   75. 

In,  see  Contracts,  320. 

Incorporated  compan}-,  see  Taxes,  188,  286. 

Indebtedness,  see  Corporations,  309. 

Infajnous  crime,  see  Criminal  Law,  79. 

Inhabitant,  see   Elections,  34. 

Inhaled,  see  Insurance,  VI.  b,  3,  c. 

Injuries,  see  Release,  17. 

Injuring  property,  see  Arrest,  32. 

Insolvency,  see  Insolvency,  7,  8. 

Institutions,  see  Taxes,  613. 

Intestate  laws,  see  Taxes,  602. 

Intoxicating  liquors,  see  Intoxicating  Li* 
quors,  90. 

Inventory,  see  Insurance,  489. 

Investment,  see  Public  Moneys,   8. 

Issue,  see  Issue;  Wills,  185-190. 

Itinerant  merchant,  see  License,  79. 

Itinerant  musician,  see  Salvation  Army. 

Itinerant  vendor,  see  License,  77;  Peddlers, 
13. 

Jeopardy,  see  Criminal  Law,   140. 

•Toint  tenancy,  see  Cotenancy,  1. 

Journal,  see  Statutes,  138. 

Kept,  see  Insurance.  478,  484. 

Kimlergarten,  see  Evidence,  132. 

Kindred,  see  Descent  and  Distribution,  1, 
51. 

Laborer,  see  Corporations.  808;  Exemptions, 
34.  35;  Mechanics'  Liens,  35. 

Laboring,  see  Sunday,  IH. 

Laco,   see  Carriers,  749. 

Lamp,  see  Contracts,  319.  • 

Lands  adjacent,  see  Municipal  Corpora- 
tions, 9. 

Lawful  charge,  see  Mortgage,  236. 

Lawful    heirs,   see   W^ills,   184. 

Lawful  issue,  see  Parent  and  Child,  47; 
Wills,  189,  190. 

Law  of  the  land,  see  Constitutional  Law, 
616. 

Learned  in  the  law.  see  Judges,  44. 

Legal  heirs,  see  Wills,  181. 

Legal  representatives,  see  Descent  and  Dis- 
tribution, lb. 

Legatee,  see  Insurance.  153. 

Lien,  see  Encumbrances;    TJens,   1. 

Lineal  descent,  see  Wills.  4.34. 

Litigation,  see  Insurance.  424. 

Ivodger.  see  T.odger. 

Lot.  see  Public  TmproA'ements.  01.  122. 


1014 


DEFINITIONS. 


Lottery,  see  Lottery,  II. 

Lounger,   see  Negligence,   228. 

LunatiCj  see  Descent  and  Distribution,  4. 

Machinery,   see   Mechanics'   Liens,   45. 

Malicious   injurj',   see   Conspiracy,   23. 

Man,   see   Constitutional   Law,   638. 

Manual  labor,  see  Mechanics'  Liens,  48. 

Manufacturing  establishment,  see  Insur- 
ance, 456,  457. 

Many,  see  Many. 

Market,  see  Markets,  1,  2. 

Market    price,   see   Market   Price. 

Marriage,   see   Marriage,    1. 

^laterials.    see    Mechanics'   Liens,   45,   46. 

MeeJianical  business,  see  Corporations,  529. 

Mechanical   pursuit,   see  License,   70. 

Medical  college,  see  Physicians  and  Sur- 
geons, 19. 

Mental   infirmity,  see   Insurance,  550. 

^Merchandise,    see   License,   74. 

^Merchant,  see  Merchants. 

^Merger,    see   Corporations,   53. 

Mill,  see  Insurance,  458. 

Ministerial  act.  see  Mandamus,  9. 

Money,  see  Money,   la. 

Moneyed  capital,  see  Taxes,  11. 

Month,  see  Time,  8,  9;  Writ  and  Process, 
47. 

Monument,    see    Buildings,    1. 

^lortgages.  see  Aliens.   18. 

Muiiici])alities.    see    Public    Moneys,    38. 

Municipal    oftieial.    see    Schools,    63. 

Mutilation,  see  Carriers,  595. 

Xanie.  see  Name.  1. 

Necessaries,  see  Infants,  63. 

Necessary  expense,  see  Municipal  Corpora- 
tions. 326-329. 

Necessary  implication,  see  Implication. 

Noglio;ence.  see  Negligence.  4,  31. 

Nephews,  see  Wills,   195. 

N('\vspa])ers,  see  Newspaper,  6-9. 

Next  of  kin,  see  Wills.  196-198;  Witness- 
es, 47. 

Nieces,  see  Wills,  195. 

'Noil  compoa  mentis,  see  Descent  and  Dis- 
tribiition.  4. 

Nonresident  alien,  see  Descent  and  Distri- 
bution, 50. 

Noon,   see   Insurance.   313. 

Nuisance,    see   Intoxicating   Liquors,    153. 

Occupation,  see  insurance,  1059. 

Oflicers  of  local  police,  see  Schools,  64. 

Open,  see  Lewdness. 

Opposite    party,   see   Witnesses.   46. 

Ordinances,  see  Municipal  Corporations 
73a. 

Outstanding  accounts,  see  Accounts.  1. 

Overdraft,  see  Banks.  89. 

Owner,  see  Carriers.  1021:  Insurance,  341; 
Receivers.   73. 

Parallel    railroads,    see    Conspiracy.    175. 

Parcel,  see  Public  Improvements,   122. 

Pardon,  see  Criminal  Law. 

Part\    wall,  see  Party  Wall.   1. 

PiU-    value,    see   Corporations.    351. 

Passaof.    see    Statutes.    40. 

Passenger,  see  Carriers.  144-146. 

PaviuL'.   see   Public    lmproveme?its,  51. 

Paxiible.   see  Pavable. 

Peddler,  see  Peddlers.  3-13. 

Penal   statutes,   see   Statutes.   .")05a. 

!'cll;Mt\.     ^.-l'     I'.MKlllics.     -1. 


Percolating  water,  see  Waters,  426. 

Perpetual  succession,  see  Corporations,  692. 

Person,  see  Constitutional  Law,  392,  415, 
416,  638,  639;  Corporations,  la; 
Courts,  14;  Garnishment,  14;  Insol- 
vency, 2. 

Person  absent  from  the  state,  see  Limita- 
tion of  Actions,  155. 

Personal  liberty,  see  Constitutional  Law, 
618. 

Personal   property,   see   Taxes,   109. 

Personal    representatives,    see    Deeds,   51. 

Personal  security,  see  Constitutional  Law, 
619. 

Personal  wrong  or  injury,  see  Witnesses, 
37. 

Person  residing  without  the  State,  see 
Costs  and  Fees,  22. 

Place,  see  Gaming,  7. 

Platted,    see   Municipal   Corporations,    15. 

Pledge,  see  Pledge  and  Collateral  Security, 
1. 

Police  power,  see  Constitutional  Law,  948, 
1001. 

Presence,  see  Arrest,  26,  30;  Wills,  39,  43. 

Presentation,   see   Statutes,  25. 

Private  corporation,  see  Public  Moneys,  42. 

Private  residence,  see  Gaming,  8. 

Privilege,  see  License,  106. 

Privity  in  estate,  see  Privity. 

Prize  fighting,  see  Prize  Fighting,  1,  6. 

Process,  see  Execution,  1;  Insurance,  419. 

Professional   experts,   see   Civil   Service,   10. 

Property,  see  Bankruptcy,  25,  26;  Constitu- 
tional Law,  634,  781;  Injunction,  126, 
127;  Partnership,  153;  Municipal  Cor- 
porations, 446;  Taxes,  102,  202. 

Proprietor,  see  Receivers,  73. 

Provisions,  see  Municii>al  Corporations,  224. 

Proximate  cause,  see  Proximate  Cause,  1- 
4,  12. 

Public  acknowledgment,  see  Parent  and 
Child.  20. 

Public  address,  see  Common,  1. 

Public  institution,  see  State  Institutions,  4, 

Public  officer,  see  Officers,  190. 

Public  waters  of  the  state,  see  Waters,  2. 

Published,   see   Publication,  4. 

Purchase,  see  Aliens,  18,  19;  Mechanics' 
Liens,  23. 

Purchaser,  see  Acknowledgment,  16. 

Railroads,  see  Dummy  Railroads;  Master 
and  Servant,  480;  Railroads,  3a,  168; 
Street  Railways,  64;  Taxes,  178,  498. 

Railway,  see  Elevated  Railroads,  1;  Emi- 
nent, Domain.   18;   Railroads,  3a. 

Real    estate,   see   Waters,  474. 

Regularly  organized  bank,  see  Public 
Moneys,  5. 

Related  to,  see  Insurance,  168. 

Relative,  see  Descent  and  Distribution,  1; 
Insurance.  169. 

Religious    institution,   see   Taxes,  I.   f,  3. 

Remainder,  see  Wills,  324. 

Remedy  by  due  course  of  law,  see  Consti- 
tutional Law,  790. 

Representatives,    see   Wills.    199. 

Reserve,  see  Contracts.  362,  363. 

Salary,    see   Officers,    188. 

.Sale,  see  Food.  0. 

Scientific   institution,  see  Taxes,   269-270. 

Sectarian  school,  see  Public  Monevs,  62. 


DEFINITIONS. 


1010 


Seduction^  see  Seduction,  1. 

Seizure,  see   Search   and   Seizure,  2. 

Services,  see  Mechanics'  Liens,  51. 

Shipment,  see  Contracts,  343. 

Shipped,    see    Contracts,    356. 

Sickness,  see  Insurance,  1086. 

Single  dwelling,  see   Covenant,  29. 

Space   of  intersection,   see   Mines,    15. 

Special  taxation,  see  Public  Improvements, 
105. 

Special  verdict,  see  xrial,  885. 

Specific  taxes,  see  Taxes,  20. 

Spirituous  liquors,  see  Intoxicating  Li- 
quors, 91. 

Sporting,  see  Sunday,  7. 

Square  inch  of   water,  see  Waters,  501. 

Standing  army,  see  Militia,  1. 

State  lands,  see  Eminent  Domairf,  33. 

Stepfather,  see  Insurance,  167. 

Stock,  see  Wills,  223. 

Stock   corporation,   see   Taxes,    193. 

Stream,  see  Streams. 

Street  railway,  see  Elevated  Railroads,  1; 
Taxes,  179. 

Structure,  see  Fences,  23;  Mechanics'  Liens, 
70,  72. 

Subscriber,  see  Newspaper,  1. 

Succession  tax,  see  Taxes,  556. 

Suit  actually  commenced  and  pending,  see 
Receivers,  3. 

Superintendent,   see   Corporations,   808. 

Surviving,  see  Wills.  345,  346. 

Syndicate,  see  Syndicate,  1. 

Taxes,  see  Public  Improvements,  55. 

Tenement,  see  Buildings,  34;  Evidence, 
1371. 

Then   heirs,   see  Wills,  201. 

Then  surviving,  see  Wills,  346. 

Title,  see  Title. 

Total  and  permanent  loss  of  sight,  see  In- 
surance, 1136. 

Total    disability,    see    Insurance,    1139. 

Total  inability  to  labor,  see  Insurance,  1137. 

Total  loss,  see  Insurance,   1110. 

Totallv  destroyed,  see  Insurance,  1115, 
1116. 

Transaction,  see  Action  or  Suit,  86,  87. 

Treatment,  see  Divorce  and  Sepai-ation,  16. 

Trinkets,  see  Carriers,  748. 

Troops,  see  Militia,   1. 

Trunk  railway,  see  Railroads,  I,  2. 

Trust  fund,  see  Receivers.  91. 

Unconditional  and  sole  ownership,  see 
Insurance,  HI.  e.  1.  b. 

T'ndue  influence,  see  Wills,  109,  110. 

Vnion,  see  Corporations,  53. 

Unlawful,  see  Corporations.  18. 

Unmarried  woman,  see  Wills,  74,  75. 

Unneeessarv  danger,  see  Insurance,  1044. 

Until,  see  Time,  13.  14. 

Usual  projection,  see  Covenant,  35. 

Vested    water   rights,   see   Waters,   320. 

Viewing,  see  Coroner,   1. 

"\Mnous  liquors,  see  Intoxicating  Liquors, 
91. 

Voluntary  exposure,  see  Insurance,  VI.  b,  3, 

Voluntary  trust,  see  Trusts.  39. 
Volunteer,  see  Subrogation.  26. 
Wares,   see   License,   74. 
Waste,  see   Executors  and   Administrators, 
"fia. 


Watercourses,  see  Waters,  410,  432,  433. 
Ways,  see   Master   and   Servant,    162. 
Week  of  time,  see  Time,  6. 
Wound,  see  Insurance,  555,  556. 

Editorial  Notes. 

Accidental.     9:  685.* 

Affinity.     11:630.* 

Agents,   general   and   special.     2:  808.* 

Breach  of  the  peace.     13:  163.* 

Business.     14:  530. 

Collusion.     12:  815.* 

Consolidation.     52:  369. 

Contingent  claims.    58:  83. 

Court.     56:531. 

Covenants.  6:  107.* 

Criminal  negligence.    3:  644.* 

Dealing.     14:529. 

Debt.     34:  636. 

Deed-poll.     8:604.* 

Deposition.     13:  366.* 

Due  process  of  law.    2:  2S8.* 

Dues.     15:  513. 

Easement.     6:  159.* 

Elements.     53:673. 

Escheat.     12:529.* 

Escrow.     5:  696;*  10:  469.» 

i^amily.     6:813.* 

Forgery.     10:  779.* 

Gift.     6:  403.* 

Hawkers.     8:273.* 

Heirs.     8:  732,*  747;*  12:  721;*  13:  46.* 

Presumptive  and  apparent.    5:  122.* 

In   insurances   policies.     30:  593. 
Inevitable  acoident.     11:  016.* 
Inn.     6:  484.* 

Insolvency.     5:765;*    6:108;*    10:707.* 
Insolvent.     5:  765.* 
Issue.     4:  117;*  11:  305.* 
Laborers.     18 :  305. 
Laches.     10:  125.* 
Legal  representatives,  as  nsed  in  insurance 

policv.     30:  609. 
Libel.     9:  621:*   13:419.* 
Lunatic.     1 :  270.* 
Maintenance.     10:  190.* 
Malice.     2:  130;*   11:  546.» 
Manufacturers.     14:  107. 
Market  value.     12:  610.* 
Martial  law.     65:  193. 
"May"  in   statute.     6:  162.* 
Mistake.     6:  835.* 
Month.     12:  770.* 
Navigable  streams.     3:  406.* 
Nonresident.     10:  504.* 
Novation.     10:  369.* 
Officer.     13:  177;*  17:243. 
Option.     21:  128. 
Partv  wall.     1:33;   7:  649.* 
Peddlers.     8:273.* 

Persons:    who   or   what   it.   included   in    the 
term    "persons."      19:222. 

Definitions.     19:222. 

Is  a  sovereignty   a  person?     19:  223. 

Are  corporations  persons?     19:  223. 

Under  laws  relating  to  attachment,  19: 
224. 
Under   laws    relating   to    taxation. 

19:  224. 
Within   statutes  of  limitation.   19: 

224. 
Under    Constitution.      19:224. 


1016 


DEGREES— DEMAND. 


Under  miscellaneous  statutes.   19: 
225. 
Women.      19 :  226. 
Miscellaneous   instances.     19:  226. 
Police   power.      13:  131.* 
Publication.      13:  419.* 
Rape.     8:297.* 
Relation.     13:37.* 
Relatives.     14:  342. 
Right  of  way.     4:  275.» 
Term.     56:  531. 

Unmarried;  meaning  of  words  "unmarried" 
and  "without  having  been 
married."      15:  292. 
In  statutes.     15:  292. 
In  will  or  marriage  settlement.  15:  292. 
"Valuable   consideration."     2:  530.* 
Verdict,  general  and  special.     6:  573.* 
Will.     10:  93.* 


DEGREES. 

Conferring  of,  see  Colleges,  8,  9. 
Of  Homicide,  see  Homicide. 


DELAY. 

Dismissal  of  Appeal  for,  see  Appeal  and 
Error,  375-377. 

In  Delivery  by  Carriers,  see  Carriers,  II. 
b,  4,  d. 

In  Giving  Notice  of  Arrival  of  Property 
Shipped,  see  Carriers,  801. 

By  Consignee  in  Removal  of  Goods,  see 
Carriers,   804-806. 

In  Presenting  Check,  see  Checks,  14-25. 

In  Delivery  of  Telegram,  see  Telegraphs,  57- 
64. 

In  Delivery  by  Warehouseman,  see  Ware- 
housemen, 13. 


DELEGATE    DISTRICT. 

Question  for  Court  as  to  Formation  of,  see 
Courts,   134. 


DELEGATES. 


Change  in  Apportionment  of,  see  Election 

Districts,  42. 
To  Political  Convention,  see  Elections,  III. 


DELEGATION. 


Of  Master's  Duty,  see  Master  and  Servant, 
IL  e,  2. 


DELEGATION  OF  POWER. 

Constitutionality     of,      see      Constitutional 
Law,  I.  d. 


By  Director  of  Corporation,  see  Corpora- 
tions, 230. 

By  County,  see  Counties,  42. 

To  Board  of  Supervisors,  see  Intoxicat- 
ing Liquors,  49. 

As  to  Local  Option  Generally,  see  Intox- 
icating Liquors,  I.  e. 

By  Judge,  see  Judges,  2. 

As  to  Amount  of  License  Fee,  see  License, 
151. 

By  or  to  Municipality,  see  Constitutional 
Law,   I.   d,  4;    Municipal   Corporations, 

n.  b. 

As  to  Impeachment,  see  Officers,  159. 
As    to    Assessments    for    Public    Improve- 
ments, see  Public  Improvements,   133. 


DELIBERATION. 


As  Element  of  Murder,  see  Homicide,  2,  3, 
22. 


DELIRIUM    TREMENS. 

Amount  of  Damages  when  Due  to  Negli- 
gent Injury  of  Intoxicated  Person,  see 
Damages,  316. 


DELIVERY. 


By  Carrier,  see  Carriers,  II.  b,  4. 

Indorsement  of  Note  before,  see  Bills  and 
Notes,  HI.  b,  2. 

Of  Note,  see  Bills  and  Notes,  29-32. 

Of  Deed,  see  Deeds,  I.  b. 

In   Escrow,  see   Escrow. 

Of  Gift,  see  Gift,  HI. 

Of  Insurance  Policy,  see  Insurance,  216- 
230. 

Of  Mortgage,  see  Mortgage,  5,  6. 

Of  Pledge,  see  Pledge  and  Collateral  Se- 
curity, 3-12. 

Of  Personalty  Sold,  see  Sale,  I.  b. 

Of  Telegram,  see  Telegraphs,  II. 


DELUSIONS. 


Effect   of,   on   Testamentary   Capacity,   see 
Wills,  92-102. 


DEMAND. 

As  Condition  Precedent  to  Right  of  Action, 
see  Action  or  Suit,  I.  b,  3;  Mandamus, 
153-156,  206;  Replevin,  I.  c;  Trover, 
L  c. 

As  Condition  Precedent  to  Set-OfiF,  see  Set- 
off and  Counterclaim.  53. 

By  Holder  of  Bank  Check,  Effect,  see 
Banks,  107. 

For  Pavment  of  Note,  see  Bills  and  Notes, 
TV.*;    Trial,    150,    151. 


DEMAND  NOTE— DENTISTS. 


10  ir 


Upon  Guarantor,  see  Guaranty',  22. 

To  Start  Interest  Running,  see  Interest, 
I.  h. 

For  Jury  Trial,  see  Jury,  I.  c. 

Against  City,  see  Municipal  Corporations, 
il.  g,  6. 

Admission  of,  see  Pleading,  116. 

For  Support  of  Pauper,  see  Poor  and  Poor 
l^aws,  10. 

To  Enforce  Condition  Subsequent,  see  Real 
Property,  20,  21. 

What  is,  see  Executors  and  Administra- 
tors, 156;   JiJxtortion,  2. 

Waiver  of,  see  Banks,  394. 

Editorial   Notes. 

As  Condition  of  Holding  Drawer  or  Indorser 
of  Negotiable  Paper,  see 
Bills  and  Notes,  VII.  §§ 
25-29. 

As  a  Condition  of  Trover,  see  Trover,  III. 

As  a  condition  of  mandamus  to  compel  sur- 
render  of   office.     31:348. 

Banking  customs  avs  to  demand  and  notice. 
21:  441. 

Before  sale  of  property  by  pledgee.  43:  750. 

For  trial  as  a  condition  of  disclia.rge  for  de- 
lay in  prosecution.  56: 
538. 

On  cotenant  for  rents  and   profits.  28:  850. 

For  repairs  as  a  condition  of  liability  of 
cotenants.     29:  459. 

Sufficiency  of  demand  that  insured  submit 
to    examination.      52:  425. 

Of  payment  of  alimony  as  condition  of  con- 
tempt proceedings.  24 : 
437. 

As  a  condition  of  recovery  of  goods  by  sell- 
er in  case  of  purchaser's 
fraud.      2:  155.* 


DEMAND    NOTE. 


Time  of  Demanding  Payment,  see  Bills  and 
Notes,  133,  159-162. 

Failure  to  Pay  on  Demand,  see  Pledge  and 
Collateral  Security,  13. 

Question  for  Jury  as  to  Time  for  Demand- 
ing  Payment,   see   Trial,   150,   151. 


DEMONSTRATIVE    EVIDENCE. 
See  Evidence,  V. 


DEMURRAGE. 


On  Cars,  see  Carriers,  II.  b,  9. 

Legality   of  Agreement  between    Railroads 

as  to  Charges  for,  see  Conspiracy,  184- 

187. 
On  Vessel,  see  Shipping,  11-14. 

Editorial   Notes. 

On  oars.     22:  530. 

Jiir' '^diction  of  admiralty  as  to.  66:  226. 

Maritime  lien  for.     70:  374. 


DEMURRER. 


Raising  Objection  to  Indictment  by,  see 
Criminal  Law,  129. 

Conclusiveness  of  Judgment  on,  see  Judg- 
ment, II.  b. 

To  Alternative  Writ  of  Mandamus,  see  Man- 
damus, 198. 

To  Evidence,  see  Trial,  II.  d,  4. 

See  also  Pleading,  VII. 


DENIAL. 

In   Pleading,   see   Pleading.   462-471. 


DENTISTS. 


Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  495,  496,  504. 

Requiring  License  to  [Manage  Dental  OHice,- 
see  Constitutional  Law,   1033. 

Disclosilre  of  Information  Obtained  in  Prac- 
tice, see  Evidence,  1492. 

Transfer  of  Goodwill  of  Partnership  of,  see- 
Goodwill,  4. 

Injunction  against  Practice  by,  see  Injunc- 
tion, 97. 

Compelling  Indorsement  of  Diploma,  see 
Mandamus,  33. 

Appointment  of  Examiners,  see  Officers,  55, 
56. 

Construction  of  Statute  as  to  Admission  to 
Practice,  see  Statutes,  488. 

1.  Authority  to  practise  medicine  and 
surgery  under  R.  I.  Gen.  Laws,  chap.  165, 
includes  the  right  to  practise  dentistry  as  a 
branch  of  surgery,  without  having  com- 
plied with  the  requirements  specially  pro- 
vided by  R.  I.  Gen.  Laws,  chap.  155,  as 
amended  by  R.  T.  Pub.  Laws,  chap.  470,  as 
a  condition  for  practising  dentistry.  State 
V.  Beck,  21  R.  I.  288,  43  Atl.  366,     45 :  269 

2.  A  statute  providing  that  any  person 
desiring  to  practise  dentistry  may  be  exam- 
ined "with  reference  to  qualifications"  by 
the  board  of  medical  examiners  will  not  be 
held  unconstitutional  on  the  ground  that  its 
language  is  so  vague  and  indeterminate  as 
to  permit  an  examination  iipon  any  subject, 
since  it  will  be  presumed  that  the  quali- 
fications referred  to  are  those  appropriate 
to  and  requisite  for  the  practice  of  den- 
tistry. State  v.  Knowles,  90  Md.  646,  45 
Atl.  377,  49:  695 

3.  A  dentist,  though  having  a  diploma 
from  a  reputable  dental  college,  and  on  the 
roll  of  dental  surgeons,  and  registered  ac- 
cording to  law,  is  not  exempt  from  jury 
duty,  under  Mo.  Rev.  Stat.  1889,  §  6062,  as 
a  "practitioner  of  medicine."  State  ex  rel. 
Flickinger  v.  Fisher,  119  Mo.  344,  24  S.  W. 
167,  22:  799 

Editorial  Notes. 

Judicial  review  of  action  in  respect  to  li- 
censes.    20:  355. 


1018 


DEPARTMENT  OF  AGRICULTURE— DEPOSITIONS.  IL 


DEPARTMENT    OF    AGRICULTURE. 

License  from,  see  License,  34. 
See  also  Board  of  Agriculture. 


DEPARTMENT   STORE. 

Police  Regulation  of,  see  Constitutional 
Law,  1060,  1075. 

Estoppel  of,  to  Deny  Liability,  see  Estop- 
pel, 217. 

Injunction  for  Breach  of  Contract  by,  see 
injunction,   101. 

Prohibiting  Sales  of  Liquor  in,  see  Intox- 
icating Liquors,  25. 

License  of,  see  License,  119. 

Municipal  Regulation  of,  see  Municipal 
Corporations,  222. 

Specific  Enforcement  of  Contract  by,  see 
Specific  Performance,  64. 

Validity  of  Statute  as  to,  see  Statutes,  60. 

Editorial  Notes. 

Legal   restrictions   on.      48:  261. 

Persons  conducting  departments  as  inde- 
pendent contractors.  65 : 
470. 


DEPARTURE. 

From    Pleading   in    Recovery    Allowed,    see 

Pleading,   98,  99. 
In  Amendment   of   Pleading,  see  Pleading, 

129. 

♦-•-♦ 

DEPENDENTS. 

Insurable  Interest   of,   see  Insurance,   154- 
173. 


DEPORTATION. 


See  Aliens,  I. 


DEPOSIT. 

In  Accordance  with  Arbitration  Agreement. 

Liability  for  Costs,  see  Arbitration,  10, 

11. 
In  Bank,  see  Banks,  IV.  a. 
To  Secure  License,  see  Constitutional  Law, 

759. 
As  Security  for  Costs,  see  Costs  and  .Fees, 

23. 
■Of  Title  Deeds  as  Mortgage,  see  Mortgage, 

9,  133. 


DEPOSITIONS. 


III.  Objections. 

IV.  Use  on  Trial. 
V.  Editorial  Notes. 

As  Part  of  Record  on  Appeal,  see  Appeal 

and   Error,   180. 
Prejudicial    Error    in    Permitting    Retaking 

of,  see  Appeal  and  Error,  959. 
Taking  for  Use  in  Proceedings  to  Suppress 

Monopoly,      see      Constitutional      Law, 

916;   Courts,  246. 
Costs  \^^le^e  Deposition  is  Not  Completed, 

see  Costs  and  Fees,  4. 
Effect  of  Taking,  on  Jurisdiction  of  Court, 

see  Trial,  17. 
As   to   Discovery   and   Inspection,   see   Dis- 
covery and  Inspection. 


I.  In    General. 

Right  to  take. 

1.  A  witness  "lives"  where  he  is  sojourn- 
ing for  his  health  for  an  uncertain  time, 
within  the  meaning  of  U.  S.  Rev.  Stat.  § 
863,  U.  S.  Comp.  Stat.  1901,  p.  661,  in  re- 
spect to  the  taking  of  depositions  of  a  wit- 
ness who  lives  more  than  100  miles  from 
the  place  of  trial.  Mutual  Ben.  L.  Ins.  Co. 
V.  Robison.  19  L'.  S.  App.  266,  7  C.  C.  A. 
444.  58  Fed.  723,  22:  325 
Weight  given  to. 

2.  The  answers  of  a  wife  to  interroga- 
tories on  facts  and  articles  propounded  to 
her  by  creditors  of  her  husband,  who  have 
seized  by  attachment  land  alleged  to  be- 
long to  him,  but  which  the  wife,  having  in- 
tervened in  the  proceedings,  claims  to  be- 
long to  her,  are  entitled  to  no  greater  ef- 
fect, as  against  such  creditors,  than  her 
oral  testimony  given  in  her  own  belialf. 
Rush  V.  Landers,  107  La.  549,  32  So.  95, 

57:353 


T.  In    Ceneral. 
IT.  Taking  and  Returning. 


II.  Taking    and    Returning. 

Time  to  take. 
See  also  infra,  14. 

3.  Depositions  will  be  suppressed  which 
are  taken  in  violation  of  a  rule  providing 
that  testimony  cannot  be  taken  bv  either 
party  until  the  cause  is  at  issue  by  suf- 
ficient answer  or  decree  pro  confesso  as  to 
all  the  defendants.  Hall  v.  Henderson,  134 
Ala.  455,  32  So.  840,  63:  673 
Notice. 

4.  The  publication  of  notice  to  take  dep- 
ositions, under  W.  Va.  Code,  chap.  121,  § 
2,  which  requires  notice  once  a  week  -for 
four  successive  weeks,  is  completed  on  the 
fourth  issue  of  the  newspaper  containing 
it,  and  is  sufficient  if  a  reasonable  time 
elapses  between  the  date  of  said  fourth  is- 
sue and  the  taking  of  the  depositions.  Mil- 
ler V.  :\IeMepheh.  33  W.  Va.  197,  10  S.  E.  378, 

6:515 
Interrogatories. 
See  also  supra.  2. 

5.  An  exaniina>tion  of  an  adverse  party  by 
interrogatories,  under  Fla.  i-r.  act  February 
8.   1801    CNIcClel.   Dig.   pp.   516,   517,   §§    18- 


DEPOSITIOX^  HI.— V. 


1019 


21),  is,  like  a  bill  of  discovery  in  equity 
in  aid  of  an  action  at  law,  limited  to  the 
support  of  the  case  or  defense  of  the  party 
propounding  the  interrogatories,  and  can- 
not extend  to  the  whole  case.  Jacksonville, 
T.  &  K.  W.  R.  Co.  V.  Peninsular  Land,  T. 
&  Mfg.  Co.  27  Fla.  1,  157,  2  So.  661,  9  So. 
4JSd,  17 :  33 

G.  The  provisions  af  Fla.  Pr.  act  Feb- 
ruary 8,  1861,  allowing  interrogatories  to 
be  propounded  to  the  adverse  party  in  ac- 
tions at  law,  are  not  repealed  by  the  act  of 
February  4,  1874,  removing  the  common- 
law  disability  of  a  party  to  testify.  Id. 
Certificate  of  ofi&cer  taking. 

7.  A  certificate  of  the  oflicer  taking  a 
•deposition  is  insufficient  which' Sjtates  that 
the  witnesses  were  ,sworn  "to  testify  the 
whole  truth  of  their  knowledge  touching 
the  matter  in  controversy,"  where  the  stat- 
ute (Kan.  Gen.  Stat.  1889.  «"  44o4)  pro- 
A-ides  that  such  certificates  shall  show  "that 
the  witness  was  first  sworn  to  testify  the 
truth,  the  whole  truth,  and  nothing  but 
the  truth;"  and  it  is  error  to  overrule  a 
motion  to  suppress  such  deposition,  alleg- 
ijig  such  defect  as  ground  therefor.  Western 
U.  Teleg.  Co.  v.  Collins,  45  Kan.  88.  2.5  Pac. 
187,  10:515 


III.  Objections. 

Sufficiency. 

8.  A  general  "objection  and  exception  to 
the  admission  in  evidence  of  a  deposition 
is  not  sufficient  if  some  portions  of  it  are 
admissible,  although  other  portions  are  in- 
admissible, (iutznum  v.  Clancj-,  114  Wis. 
.=i8f).  90  X.  W.  1081.  58:  744 
Time  to  take. 

9.  An  objection  to  an  answer  to  an  in- 
terrogatory in  a  deposition,  that  it  states 
facts  not  called  for.  should  be  made  before 
trial  upon  notice  to  the  other  party.  Mis- 
-(.uri  P.  R.  Co.  v.  Tver,  71  Tex.  409.  9  S.  W. 
346,  ■  1 :  500 

10.  A  party  who  has  answered  interroga- 
tories propounded  before  trial,  under  Ind. 
Rev.  Stat.  1881.  §  359.  caniu)t  object  to  in- 
troduction of  the  answers  in  evidence  at 
the  trial,  upon  the  ground  tltat  they  are 
irrelevant.  Cincinnati.  I.  St.  L.  &  C.  R.  Co. 
-v.  Howard.  124  Tnd.  280,  24  N.  E.  892. 

8:  593 

11.  An  objection  that  an  officer  of  a  cor- 
poration, whose  answers  to  interrogatories 
are  offered  in  evidence  against  it.  is  not  of 
sufficient  grade  to  answer,  is  properly  over- 
ruled when  not  made  nntil  the  trial,  and 
unsupported  bv  evidence.  .Tacksonville.  T. 
A  K.  W.  R.  Co.  v.  Peninsular  Land  T.  & 
Mfg.  Co.  27  Fla.  1.  157.  2  So.  661.  9  So.  689. 

17:33 

12.  The  fact  that  a  deposition  of  a  wit 
■ness  was  taken  in  the  third  person  and  as  a 
recital  by  the  notary  of  what  was  said  is 
a  mere  irregularity.'  waived  by  faihire  to 
move  to  suppress  the  deposition  within  the 
time  limited  bv  Minn.  Gen.  Stat.  1894,  § 
5691.  Hahn  v.  Bettingen,  81  Minn.  91.  83 
N.  W.  467,  50:669 


IV.  Use  on   Trial. 

Use   of,  in  Other  Case,  see   Evidence,  898, 

899. 
Order  of  Admission  of,  see  Trial,  20. 
After  Death  of  Other  Party,  see  Witnesses, 

42. 

13.  Depositions  taken  in  the  presence  of 
the  accu.sed  may  be  used  on  trial  when,  on 
account  of  death  or  other  good  cause,  the 
))resence  of  the  witness  cannot  be  had.  This 
is  not  in  violation  of  the  6th  Amendment  to 
the  Constitution  of  the  United  States.  Ter- 
ritory v.  Evans,  2  Id.  651,  23  Pac.  232. 

7:  646 

14.  A  deposition  taken  before  certain  per- 
sons were  ma  le  parties  to  a  suit  cannot  be 
used  as  against  them.  Smith  v.  Milwaukee 
Builders'  &  T.  Exch.  91  Wis.  360,  64  X. 
W.   1041,  .30:  504 

15.  The  competency  of  a  deposition  of- 
fered against  the  estate  of  a  deceased  per- 
son does  not  depend  upon  the  facts  at  the 
time  the  deposition  was  taken,  but  upon 
those  existing  at  the  time  of  the  trial.  Hew- 
lett V.  George.  68  Miss.  703.  9  So.  885. 

13:682 

16.  An  answer  to  an  interrogatory  as  to 
usiuy,  in  a  suit  to  enjoin  enforcement  of  a 
bond  in  which  no  interest  is  provided  for 
tmtil  maturity,  but  usurious  interest  after- 
wards, which  states  that  legal  interest  un- 
til maturity  made  up  part  of  the  face  of  the 
l>ond.  and  that  the  illegal  interest  was  a 
penalty  for  not  paying  at  maturity,  will 
not  b«  excluded  from  evidence  for  contra- 
dicting the  bond.  Ward  v.  Cornett,  91  Va. 
676,  22  S.  E.  494,  49:  .550 

17.  Refusal  to  answer  a  cross-interroga-" 
tory  which  does  not  appear  to  have  been 
material  will  not  prevent  the  admission  of 
a  deposition  in  evidence.  White  v.  Solomon, 
164  Mass.  516.  42  N.  E.  104,  30:  537 
When  deponent  present. 

18.  Answers  to  interrogatories  by  a^  non- 
resident witness  cannot  be  read  if  he  is  ac- 
tually present  in  court,  although  he  has 
come  at  the  request  of  the  opposite  party. 
East  Tennessee,  V.  &  G.  R.  Co.  v.  Kane,  92 
Ga.  187,  18  S.  E.  18,  22:315 

19.  A  witness's  deposition  taken  by  plain- 
tiff and  filed  in  the  suit,  is  properly  exclud- 
ed on  plaintiflF's  objection  that  the  witness 
is  present,  upon  defendant's  offering  it  in 
evidence,  under  the  implication  contained  in 
Mo.  Rev.  Stat.  1889,  §  4461,  which  makes  no 
provision  for  the  reading  of  the  deposition 
of  a  witness  not  a  party  to  the  suit  who  is 
present  at  the  trial.  Schmitz  v.  St.  T^uis. 
T  M  &  S.  R.  Co.  119  Mo.  256.  24  S.  W. 
479  23:250 


V.  Editorial  Xotes. 

Defined:   rejection  of,  as  evidence.  13:366.' 
Of   subscribing   witness.     .35:  340. 
Use  of,  before  grand  jury.     28:  319. 
Power   of   consul   to   take   depositions.    45: 

499. 
Privilege  as  to  statements  in.     22:  837. 


1020  DEPOSIT  SLIP- 

DEPOSIT   SLIP. 
Nature  of,  see  Banks,  179. 

«-•-♦ ■ 

DEPOT    COMPANY. 


Burden  of  Proving  Negligence  of,  see  Evi- 
dence, 535. 

As  Servant  of  Railroad  Company,  see  Mas- 
ter and  Servant,  14. 

Injury  to  Employees  of,  see  Master  and 
Servant,  476. 

Negligence  as  to  Vicious  Person  in  Depot, 
see  Negligence,  48. 

See  also  Union  Depot  Company. 


-DESCENT  AND  DISTRIBUTION. 


Marshal,  Homicide  by,  see  Contlict  of  Laws, 
248. 

Of  United  States  ^larshal.  see  Elections, 
165. 

Release  of  Deputy  Marshal  on  Habeas  Cor- 
pus, see  Habeas  Corpus^.  62. 

Positmaster,  see  Postoffice,  5. 

Of  Secretary  of  Internal  Affairs,  ~ee  Of- 
ficers,   169. 

Secretary  of  State,  see   Writ   and   Process,. 


DEPOTS. 

Keeping  Open,  see  Carriers,  25. 

Duty  to  Announce  Stations,  see  Carriers, 
465. 

Condition  of,  see  Caniers,  II.  a,  9. 

Duty  as  to,  see  Carriers,  III.  d. 

Grant  of  Special  Privilege  to  Hacks,  Car- 
riages, etc.,  at,  see  Carriages,  1045- 
1067. 

Contract  to  Establish,  see  Contracts,  322, 
471,  472,  698. 

Covenant    to    Maintain,   see   Covenant,    109. 

Condition  in  Grant  as  to  Alaintenance  of, 
see  Real  Property,  9.  23. 

Rights  Acquired  by  Condemnation  of  Land 
for,  see   Eminent  Domain,   149. 

]\Ian(Iamus  to  Compel  Location  of,  see  Man- 
damus, 104. 

Liability  for  Street  Improvement  Assess- 
ment, see  Public  Improvements,   112. 

Assessment  for,  see  Public  Improvements, 
41,  84,  160,   163-166. 

Tax  on,  see  Taxes,  184,  245. 

Question  for  Jury  as  to,  see  Trial,  174. 

Editorial   Notes. 

As  to  Rights  of  Passengers  at,  see  Carriers, 

IV.  §  7. 
Taking  land   for.     9:295.* 
Rights  of  and  discrimination  as  to  hackmen 

at.      13:848. 
Formation  of  union  depots.     13:  415:* 


DEPUTY. 

Acknowledgment   by,   see  Acknowledgment. 
2,  7,  19. 

Arrest    by.    Without   Warrant,    see    Arrest. 
16. 

Special  Legislation  as  to.  see  Statutes.  405. 

Service  on,  see  Writ  and  Process,  25,  86. 

Return  of  Process  by,  see  Writ  and  Process. 
82. 

Of  Clerk,  see  Clerks,  18. 

Of    District    Attorney.    J\idicial    Notice    of 
Appointment  of.  see  Evidence.  26. 
District   Attorney.   Signing  of   Informa- 
tion by,  see  Indictment,  etc.,  7,  8,  11, 
17b. 


Of 


and 


Sheep  Inspector,  Negligence  of.  see  Officers, 

200. 
Of    Sheriff,    see    Bonds,    68,    69;    Executors- 

and   Administrators,    110;    Officers.    25, 

28,  33,  71;    Sheriff,  4,  5. 
Unlawful     Contract    between     Sheriff 

Deputy,   see   Contracts,   506. 

Editorial  Notes. 

Right  of  woman  to  be.     38:  210. 
In  whose  name  to  act.     19:  177. 
When  sheriff  may  act  by.     3:  440.* 
Infant   as   deputy   sheriff.     13:  721.* 


DESAILMENT. 


Liability  for  Injuries  to  Passenger  by,  see 
Caniers,  238. 

Presumption  and  Burden  of  Proof  ,iu  Case 
of,   see   Evidence,   466,   467,   530. 

Opinion  Evidence  as  to  Cayse  of,  see  Evi- 
dence, 1269. 

Proximate  Cause  of  Injury  by,  see  Proxi- 
mate Cause,  86-89,   113. 

♦  >» 


DERELICT. 

Editorial  Notes. 
Ownership  of.     18:  695. 

♦-•-♦ 


DERRICK. 

Injury  to  Passenger  by,  see  Carriers.  235 

♦-•-♦ 

DESCENT  AND  DISTRIBUTION. 

I.  Right  to  Inherit. 

a.  Who    Entitled    Generally. 

b.  Effect   of   Alienage. 

e.  Efl'ect  of   Illegitimacy   or  Slavery, 

d.  Effect  of  Adoption. 

e.  Rights  of  Husband   and    VVif-?. 

II.  Property   Subject  to  Descent   and   Dis- 
tribution. 

III.  Nature   and   Incidents   of   Estat-?. 

IV.  Editorial  Notes. 

Effect  of  Civil  Death,  see  Civil  Death.  :?-.=>. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

I-  J. 
From    Insane    Person.    Due    Process    as    to, 
see  Constitutional   Law.   782. 


DESCENT  AND  DISTRIBUTION,  I. 


1031 


•Right  to  Transmit,  as  Property,  see  Con- 
stitutional Law,  7S1. 

Mortgaged  Land  Descending  ac  Ko:U  Es- 
tate, see  Equitable  Conversion. 

Interest  on  Claims  of  Distributees,  see  In- 
terest, I.  e. 

'Conclusiveness  of  Deoroe  of  Distribution, 
see  Judgment,  89. 

Right  of  Distributees  to  Enforce  Covenant 
of  Ancestor,  see  Parties,  27. 

Eight   of  Re-entry,   see   Real    Property,   2G. 

Effect  of  Release  by  Part  of  Chi  Mi  en  Re- 
ceiving Advancement,  see   Release,  7. 

Tax  on  Right  to  Take  Property  bv,  see 
Taxes,  V. 

Effect  of  Parol  Trust  on,  see  Trusts,  46. 

Time  of  Determining  Heirs  Who- Take  un- 
der Will,  see  Wills,  201-207.  '' 

In  Case  of  Death  bv  Saine  Disaster,  see 
Wills,  253. 

On  Failure  of  Devise,   see  Wills,  443. 

As  to  Distribution  of  Decedent's  Estate 
Generally,  see  Executors  and  Adminis- 
trators, IV.  c. 

As  to  Devise  or  Bequest  of  Property,  see 
Wills,  III. 


I.  Right    to    Inherit, 
a.  Who    Entitled    Generally. 

•Constitutionality  of  Statute  Changing,  ^ee 
Constitutional    Law,    G34. 

Effect  of  Change  of  Decision  as  to,  see  Con- 
stitutional Law,  1183. 

Distribution  of  Proceeds  of  Judgment  in 
Action  for  Wrongful  Death,  see  Death, 
1. 

Presumption  and  Burden  of  Proof  as  to 
Survivorship,  see  Evidence,  II.  e,  3. 

<3onclusiveness  of  Finding  of  Heirship,  see 
Judgment,  263. 

Eight  of  Trustee  in  Mortgage,  see  Mort- 
gage,  151. 

As  to  Escheat,  see  Escheat. 

Tor  Editorial  Notes,  see  infra,  IV.  §§  1,  5, 

1.  A  '"relative"  is  a  blood  relation,  and 
not  a  relation  by  marriage  only,  within 
the  meaning  of  Me.  Rev.  Stat.  chap.  74,  § 
10,  giving  the  lineal  descendants  the  share 
4of  a  relative  of  the  testator,  who  is  a  dev- 
isee, if  he  dies  before  the  testator.  El- 
liot V.  Fessenden,  S3  Me.  197,  22  Atl.  115. 

13-  37 

la.  The  word  "kindred,"  in  a  statute  pro- 
-viding  for  the  descent  of  property  in  the 
Absence  of  kindred,  means  those  who  can 
lawfully  inherit,  and  does  not  include  il- 
legitimate blood  relatives,  unless  they  are 
given  the  right  by  statute  to  inherit.  Croan 
V.  Phelps,  94  Ky.  213,  21   S.  W.  874, 

23:  753 

lb.  The  words  "legal  representatives,"'  to 
whom  it  is  provided  that  an  estate  shall 
'descend  at  the  death  of  one  who  creates  a 
trust  for  his  own  maintenance  during  life, 
•mean  his  descendants  or  heirs.  Ewing  v. 
Jones,   130  Ind.   247,  29   N.   E.    1057, 

15:  75 


2.  The  child  of  a  cousin  cannot  take  tiie 
parent's  share,  under  the  Conneticut  stat- 
ute of  distributions,  where  the  parent  dies 
before  the  intestate.  Campbell's  Appeal, 
64  Conn.  277,  29  Atl.  494,  24:  667 

3.  No  part  of  the  assets  of  a  deceased 
person  will  pass  by  representation  to  those 
claiming  through  a  predeceased  child,  where 
by  law  such  parent  was  the  child's  sole 
heir.  Gray  v.  Holmes,  57  Kan.  217,  45  Pac. 
596,  33:207 

4.  The  words  "lunatic  or  non  compos 
mentis,"  in  the  act  of  April  1,  1885,  which 
provides  that,  if  personal  estate  of  which 
a  lunatic  or  non  compos  mentis  dies  seised 
intestate  was  derived  from  such  person's 
intestate  husband  or  wjfe,  it  shall  go  lo 
the  next  of  kin  of  the  person  from  whom  it 
was  derived,  mean  one  who  has  not  sufficient 
mental  capacity  to  make  a  will.  Dibrell  v. 
Lanier,   89   Tenn.   497,   15   S.   W.   87, 

12:  70 

5.  The  common-law  rule  of  descent,  that 
the  male  issue  shall  be  admitted  before 
the  female,  applies  in  New  York  to  give  an 
inheritance  to  the  son  of  a  granduncle  of 
the  deceased,  in  preference  to  grandaunts 
and  their  descendants.  Hunt  v.  Kingston 
(N.  Y.  C.  P.)  3  Misc.  309,  23  N.  Y.  Supp. 
352,  19:377 
Rights  of  half  blood. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

6.  In  the  distribution  of  the  estate  of  an 
intestate  in  Georgia,  a  first  cousin  of  the 
half  blood  on  the  maternal  side  will  take 
the  estate  in  preference  to  a  second  cousin 
of  the  whole  blood.  Ector  v.  Grant,  112 
Ga.  557,  37  S.  E.  984,  53:  723 

7.  Brothers  and  sisters  of  the  half  blood 
are  included  in  a  statutory  provision  for 
descent  to  brothers  and  sisters,  unless  a 
contrary  intention  appears.  Anderson  v. 
Bell,  140  Ind.  375,  39  N.  E.  735,       29:541 

8.  Inheritance  is  not  confined  to  brothers 
and  sisters  of  the  half  blood  to  the  exclusion 
of  descendants  of  deceased  ones,  by  a  stat- 
ute which  excludes  the  half-blood  kindred 
from  inheriting  an  estate  which  came  to 
the  intestate  by  gift,  devise,  or  descent  from 
an  ancestor,  unless  they  are  of  the  blood  of 
such  ancestor,  if  there  are  any  of  his  blood. 

Id. 
Murderer  of  ancestor. 
Escheat    to    State   on    Murder   of    Insured, 

see  Escheat,  2. 
Effect  of  Murder  on  Right  to  Recover  on 

Life    Insurance    Policv,    see    Insurance, 

1192,   1221,   1222,  1230,  1237. 
For  Editorial  Notes,  see  infra,  IV.  §  1. 

9.  The  common-law  right  of  a  man  to 
succeed  to  the  property  of  his  wife,  upon 
her  death,  does  not  operate  in  favor  of  one 
who  murders  his  wife.  Lanier  v.  Box,  112 
Tenn.  393,  79  S.  W.   1042,  64:458 

10.  A  murderer  cannot  inherit  property 
from  one  he  has  murdered  in  order  to  obtain 
it,  and  a  bona  fide  purchaser  from  him  will 
acquire  no  title.  Shellenberger  v.  Ran- 
som, 31  Neb.  61,  47  N.  W.  700,         10:  810 

11.  A  murderer  cannot  take,  either  as  heir 
or  legatee,  the  estate  of  one   who  he  has 


1023 


DESCENT  AND  DISTRIBUTION,  1.  b. 


inurdered  for  the  purpose  of  obtaining  the  ! 
property.  Tliggs  v.  Palmer.  11-t  N.  Y.  506,! 
22  X.   E.    188.  .5:  340 

12.  A  holding  that  the  common-law 
lijjht  of  succession  to  property  does  not 
operate  in  favor  of  one  who  wilfully  takes 
the  life  of  his  ancestor  does  not  violate  a 
constitutional  provision  that  conviction  of 
crime  shall  not  work  a  forfeiture  of  estate. 
Lanier  v.  Box,  112  Tenn.  393,  79  S.  W. 
1042,  64:  458 

13.  The  murder  of  an  intestate  by  one  to 
whom  the  property  would  descend  under 
the  plain  terms  of  the  statute  will  not  pre- 
vent the  murderer  from  taking  the  inheri- 
tance. Shellenberger  v.  Ransom,  41  Xeb. 
631,    59   N.   W.    935,  25:  564 

14.  One  killing  his  ancestor  for  an  estate 
which  would  naturally  come  to  him  under 
the  statutes  of  descent  and  distribution  may 
take  it  under  a  constitution  prohibiting  at- 
tainders working  corruption  of  blood  and 
forfeiture  of  estate,  and  statutes  providing 
no  penalty  for  murder  except  death  by 
hanging.  Carpenter's  Appeal,  170  Pa.  203, 
32  Atl.  637,  29:  145 

b.  Efifect    of    Alienage. 

Rights  of  Widow  of  Nonresident  Alien,  see 
infra,  50. 

Right  of  Widow  where  Kindred  are  Aliens, 
see  infra,  51. 

Right  to  Sell  Property  and  Withdraw  Pro- 
ceeds, see  infra,  59. 

Rights  of  Aliens  Generally,  see  Aliens,  III. 

For   Editorial  Notes,   see  infra,  IV.    §   3. 

By  aliens. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

152. 
Effect  of  Treaty,  see  Treaties,  2. 
Tax    on     Succession    by    Alien    Heirs,    see 

Taxes,   629. 
See  also  Wills,  203. 
For  Editorial  X^otes,  see  infra,  IV.  §  3.       , 

15.  X'onresident  aliens  may  inherit  from 
an  alien  resident  land  situated  in  a.  state 
whose  statutes  prohibit  nonresident  aliens 
from  acquiring  title  to  land  in  the  state,  ex- 
cept that  the  widow  and  heirs  of  aliens 
who  have  acquired  lands  in  the  state  may 
hold  such  lands  by  devise  or  descent  for  a 
period  of  ten  years.  Easton  v.  Hnott,  95 
Iowa,  473,  64  X.  W.  408,  31:  177 

16.  It  seems  that  one  who  becomes  a 
domiciled  resident  of  a  foreign  country  be- 
comes an  alien  within  the  operation  of  the 
law  which  excludes  aliens  from  inheritance. 
Do  Wolf  v.  Middleton.  18  R.  I.  810,  31  Atl. 
271,  31:146 

17.  The  treaty  between  the  United  States 
and  the  Kin^;  of  Bavaria  removes  the  disa- 
bility of  subjects  of  Bavaria  to  inherit  prop- 
erty" in  the  United  States,  which  is  im- 
posed by  laws  of  the  stale  where  the  prop- 
erty is  situated.  Opel  v.  Shoup.  100  Iowa. 
407.   60   X.    W.    560.  37 :  583 

IS.  The  treaty  between  the  United  States 
and  the  Cernian  Empire,  made  soon  after 
the  formation   of  the  latter,  merely   recog- 


nizing existing  treaties  with  the  German; 
states,  and  providing  that  duties  on  succes- 
sions to  inheritances  shall  be  only  such  asf 
are  requred  of  citizens,  does  not  give  aliens 
any  right  to  inherit  land.  Wunderle  v. 
Wunderle,  144  111.  40,  33  X.  E.  195,       19:  84r 

19.  A  statute  which  denies  a  widow  any 
right  in  land  conveyed  by  her  husband,  if 
she  was  not  then  and  never  had  been  a  resi- 
dent of  the  state,  does  not  make  any  dis- 
tinction ■•between  citizens  and  aliens,"  with- 
in the  meaning  of  the  Kansas  Bill  of 
Rights,  §  17,  as  it  stood  prior  to  1888.  Buf- 
fington  V.  Grosvenor,  46  Kan.  730,  27  Pac. 
137,  *  13:  282 

20.  Under  the  laws  of  Iowa  the  nonresi- 
dent alien  mother  of  an  intestate  cannot 
inherit  her  property,  Opel  v.  Shoup,  100" 
Iowa,  407,  69  X.  W.  560,  37 :  583 

21.  Aliens  who  cannot  lawfullj^  inherit 
real  property  cannot  hold  it  by  descent  un- 
til their  title  is  assailed  in  a  direct  pro- 
ceeding by  the  state,  where  there  are  re- 
moter kindred  who  can  lawfully  inherit  it. 
Wunderle  v.  Wunderle,  144  111.  40,  33  X.  E. 
195,  19:84 
Through  aliens. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

22.  A  statutory  provision  that  tan  estate 
shall  descend  in  equal  parts  to  next  of  kin 
does  not  make  the  descent  to  collateral 
kindred  immediate  so  as  to  avoid  the  ef- 
fect of  alienage  of  ancestors  through  whom 
kinship  is  traced.  Beavan  v.  Went,  155  111. 
592,  41  N.  E.   91,  31:  8.5 

23.  The  common-law  rale  that  one  citi- 
zen cannot  inherit  from  another  where  kin- 
ship must  be  traced  through  a  nonresident 
alien  cannot  be  rejected  as  repugnant  or 
inapplicable  to  our  institutions  or  the  con- 
dition of  things  in  this  country,  under  a 
statutory  adoption  of  the  general  princi- 
ples of  the  common  law  so  far  as  applica- 
ble. Id. 

24.  The  common-law  rule  of  the  exclu- 
sion from  inheritance  of  all  tracing  their 
descent  through  un inheritable  blood  was 
never  in  force  in  Connecticut,  and  therefore 
inheritance  may  be  derived  by  collateral 
relatives  througli  alien  ancestors.  Camp- 
bells Appeal,  64  Conn.   277.  29  Atl.  494. 

24:  667, 
Sale  by  alien  of  inherited  lands. 

25.  The  alien  heirs  of  citizens  are  not  in- 
cluded among  the  'heirs  of  aliens"  to  whom 
111.  act  1887  gives  a  certain  time  in  which 
to  sell  the  lands  of  their  ancestor  or  to 
become  residents  of  the  state.  Wunderle 
v.  AVunderle,  144  111.  40,  33  X.  E.  195, 

19:  84 

26.  Xonresident  alien  heirs  who  are  citi- 
zens of  the  Hanseatic  Republic  of  Bremen 
are  entitled,  under  the  treaty  of  Decem- 
ber 20,  1827,  art.  7,  to  sell  lands  in  this 
country  which  they  would  inherit  except 
for  alienage,  and  to  withdraw  the  proceeds 
at  any  time  within  three  years  from  the 
death'  of  the  ancestor.  Schultze  v. 
Schnltze.  144  111.  290.  -33  X.  E.  201,     19:  90 


DESCENT  AND  DISTRIBUTION,  I.  c,  d. 


1023 


I 


c.  Ellect  of  Illegitimacy  or  Slavery. 
For  Editorial  Notes,  see  infra,  IV.   §  4. 

By  illegitimate  children. 

Conflict    of    Laws    as    to,    see    Conflict    of 

Laws,    I51-lo3,    307. 
As  to  Legitimation  of  Child  Generally,  see 

Parent  and  Child,  II. 
For  Editorial   Notes,   see   infra,  IV.   §   4. 

27.  The  general  and  notorious  recogni- 
tion of  an  illegitimate  son  by  his  father, 
which  will  entitle  him  to  inherit  real  and 
personal  property  of  his  father  in  Iowa, 
under  Iowa  Code  1873,  §  2466.  may  be  suf- 
ficient, although  it  took  place  in  another 
state  where  the  parties  resided  ?ij  the  time, 
and  in  which  the  son  might  have  no  such 
right  to  inherit.  \^an  Horn  v.  Van  Horn, 
107    Iowa.   247,   77    N.    W.    846,  45:93 

28.  The  recognition  of  an  illegitimate  son 
is  general  and  notorious,  within  the  mean- 
incr  of  Iowa  Code  1873,  §  246().  when  it  is 
open   and   extensive,   thougli    not   universal. 

Id. 

29.  The  general  provision  making  jssue 
of  an  illegal  or  void  marriage  legitimate, 
found  in  Ky.  Gen.  Stat.  1888.  p.  716,  S  3, 
is  not  limited  by  the  provision  in  §  4  as  to 
the  good  faith  of  the  parties  and  notice  of 
the  mistake.  Leonard  v.  Braswell,  99  Kv. 
528.  36  S.  W.  684,  36:  707 

W.  The  illegitimate  child  of  a  woman 
who  dies  before  her  brother  is  capable  of 
inheriting  her  share  of  the  brother's  es- 
tate, under  a  statute  making  bastards  capa- 
ble of  inheriting,  on  the  part  of  their  moth- 
er, in  like  manner  as  if  they  had  been  law- 
full  v  begotten  of  her.  Moore  v.  Moore,  169 
Mo."  432,  69  S.  W.  278,  58:  451 

31.  The  ancient  law  of  England,  which 
received  legislative  affirmation  by  the  stat- 
ute of  Merton  (20  Henry  III.),  under  which 
only  those  were  lawful  heirs  in  the  descent 
of  Veil  estate  who  were  born  after  the 
actual  marriage  of  their  parents,  is  the  law 
in  Florida,  except  where  it  has  been  modi- 
fied bv  statute.  Williams  use  of  Wallace 
V.  Kiriiball.  35  Fla.  49,  16  So.  783,     26:  746 

32.  A  statute  which  provides  that  "bas- 
tards also  shall  be  capable  of  inheriting  or 
of  transmitting  inheritance,  on  the  part  of 
their  mother,  in  like  manner  as  if  they  had 
been  lawfully  begotten  of  such  mother." 
only  makes  the  bastard  legitimate  so  far  as 
his  mother  is  concerned,  and  not  so  far  as 
her  kindred  are  concerned,  and  he  cannot 
take  by  inheritance  from  collateral  kin- 
dred upon  his  mother's  side.  Id. 
From  illegitimate  children. 

For  Editorial  Notes,  see  infra,  IV.  §  4. 

33.  A  statute  providing  that  "bastards 
shall  be  capable  of  inheriting  and  trans- 
mitting an  inheritance  on  the  part  of  or  to 
the  mother"  does  not  provide  for  the  trans- 
mission of  the  estate  through  the  mother 
to  hor  collateral  kindred.  Croan  v.  Phelps. 
94  Ky.  213.  21  S.  W.  874.  23:  753 

34.  Property  descended  from  the  father 
to  an  illesitimate  child  who  has  been 
adopted,  but  not  legitimated,  will,  like 
other  property  of  the  child,  descend  on  his 


death  intestate  to  his  mother  in  preference 
to  the  father's  next  of  kin,  under  the  gen- 
eral provisions  of  Mill.  &  V.  (Tenn.)  Code, 
§  3273,  as  to  inheritance  from  an  illegiti- 
mate child  bv  the  mother.  Murphv  v. 
Portrum,  95  Te'nn.  605,  32  S.  W.  (533,  3o':  263 
•35.  The  next  of  kin  of  the  father  of  an 
illegitimate  child  that  has  been  adopted 
with  capacity  to  inherit,  but  not  legiti- 
mated, have  no  inheritable  blood  as  to  such 
child.  Id. 

From  slaves. 

36.  Oft'spring  of  slave  marriages  which 
iiad  terminated  before  or  had  never  been 
repognized  by  the  parties  thereto  after  they 
became  free  persons,  have  no  inheritable 
blood,  and  cannot  inherit  property  ac<|uired 
by  their  ancestors  after  emancipation.  Wil- 
liams use  of  Wallace  v.  Kimball,  35  Fla. 
49,  16  So.  783,  26:  746 

d.  Effect  of  Adoption. 

Effect  upon  Right  of  Childless  Wife  to  In- 
herit from  Husband,  see  infra.  49. 
For  Edit^irial  Notes,  see  infra,  IV.  §  1. 

37.  A  grandchild  whose  father  is  dead, 
and  who  has  been  adopted  by  his  paternal 
grandfather,  under  Mass.  Pub.  Stat.  chap. 
149,  cannot,  if  his  grandfather  dies  intes- 
tate, inherit  shares  of  his  personalty  in  a 
double  capacity,  as  adopted  son  and  as 
representative  of  his  deceased  father,  but 
will  take  only  one  portion,  and  that  as 
adopted  son.  Delano  v.  Bruerton,  148  Mass. 
619,  20  N.  E.  308,  2:  698 
By  adopted  children. 

Conflict  of  Laws  as  to,  see  Conflict  of 
Laws,  151-153,  282,  283,  305,  306. 

Implied  Contract  to  Leave  Property  to 
Adopted  Child,  see  Contracts,  14. 

Effect  of  Agreement  to  Leave  Entire  Prop- 
erty to,  see  Contracts,  649. 

As  to  Adoption  of  Child  Generally,  see 
Parent  and  Child,  IIL 

See  also   supra,  27,   28,  34,  35. 

38.  The  statute  of  descents  is  modified  by 
implication  by  a  statute  as  to  the  adoption 
of  children,  giving  them  the  right  to  inherit 
as  lawful  children.  Fosburg  v.  Rogers.  1114 
Mo.  122,  21  S.  W.  82,  19:  201 

39.  A  child  adopted  in  accordance  with 
the  Missouri  statute,  which  provides  for 
adoption  as  "heir  or  devisee,"  and  gives  the 
child  "the  same  right  .  .  .  for  support 
and  maintenance  and  for  proper  and  hu- 
mane treatment  as  a  child  has  by  law 
against  lawful  parents,"  acquires  a  right  to 
inherit  from  the  adoptive  parents  upon 
their  intestacy.  Id. 

40.  A  statute  providing  that  an  adopted 
child  shall  become  and  be  an  heir  at  law 
of  the  person  adopting  it  does  not  make  it 
an  heir  by  right  of  representation,  in  case 
of  the  death  of  such  person,  of  his  or  her 
relatives.  Van  Derlvn  v.  Mack.  137  Mich. 
146,  100  N.  W.  278,  '  66:437 

41.  A  child  by  adoption  cannot  inherit 
from  the  parent  by  adoption  unless  the  act 
of  adoption  has  been  done  in  strict  accord- 
ance with  the  statute.  Furgeson  v.  .Tones. 
17  Or.  204.  20  Pac.  842,  3:  620 


1024 


DESCENT  AND  DISTRIBUTION.  I.  e.  II. 


42.  "Children"  and  "heirs"  of  a  life  ten- 
ant, to  whom  the  remainder  is  given  by 
Mo.  Rev.  Stat.  1855,  p.  355,  chap.  32,  §  5, 
under  a  deed  to  a  person  and  his  "bodily 
heirs,"  do  not  include  an  adopted  child  of 
such  life  tenant,  where  there  was  no  law 
authorizing  the  adoption  of  children  at  the 
time  of  the  enactment  of  such  statute,  since 
the  life  tenant  cannot  destroy  the  vested 
riglit  of  the  statutory  heirs  by  an  adoption. 
Clarkson  v.  Hatton,  143  Mo.  47,  44  S.  W. 
761,  39:  748 

43.  An  act  giving  an  adopted  child  the 
right  to  succeed  as  heir  and  next  of  kin  to 
property  of  the  adopting  father  does  not 
make  such  child  the  heir  or  next  of  kin  of 
natural  children  of  the  adopting  father  or 
their  descendants.  Helms  v.  Elliott,  89 
Tenn.  446,  14  S.  W.  930,  10:  535 
Through  adopted  children. 

44.  The  heirs  of  an  adopted  daughter  will 
inherit  through  her  a  share  of  the  estate 
of  the  deceased  adopting  parent,  as  if  she 
were  a  daughter  of  such  parent  by  wed- 
lock. Gray  v.  Holmes,  57  Kan.  217,  45  Pac. 
596,  33 :  207 

€.  Rights  of  Husband  and  Wife. 

Conflicts  of  Laws  as  to,  see  Conflict  of 
Laws,  308. 

Husband's  Estate  by  Curtesy,  see  Curtesy. 

As  to  Dower  Rights  of  Wife,  see  Dower. 

Dower  in  Personal  Property,  see  Dower,  8. 

Widow's  Right  in  Homestead,  see  Home- 
stead, 65-70. 

<!laim  in  Lieu  of  Homestead,  see  Home- 
stead,  17. 

Husband  and  Wife  Taking  by  Entireties, 
see  Husband  and  Wife.  80. 

-Convevances  in  Fraud  of  Wife's  Rights,  see 
Husband  and  Wife,  IL  j,  2. 

Wife's  Rights  in  Insurance  on  Husband's 
Life,  see  Insurance.  VI.  d,  2,  h. 

Liability  of  Survivor  for  Waste,  see  Life 
Tenants.   1. 

Hight  of  Survivor  to  Produce  of  Oil  "Wells, 
see  Life  Tenants,  53. 

See  also  supra,  9,  19;  Wills,  198,  204. 

45.  A  widow's  release  by  an  antenuptial 
contract,  of  all  her  claims  on  the  estate  of 
her  husband,  in  consideration  of  a  specified 
sum.  does  not  preclude  her  from  being 
deemed  his  widow,  or  entitle  the  descend- 
ants of  his  deceased  mother  to  take  his 
estate,  under  HI.  Rev.  Stat.  chap.  39,  §  2, 
providing  that,  when  there  is  no  widow  or 
children  of  the  decedent,  the  estate  shall 
go  to  his  mother  and  her  children  and  their 
descendants.  Hudnall  v.  Ham,  183  111.  480. 
56  X.  E.   172.  _  48:  557 

40.  A  woman  entitled  to  dower  is  there- 
by excluded  from  any  claim  to  a  dis- 
tributive share  of  such  portions  of  her  liiis 
band's  estate  as  to  which  he  may  have  died 
intestate.  Beaty  v.  Richardson,  56  S.  C. 
173.  .34  S.  E.  73,  46:  517 

47-48.  The  common-law  right  of  a  hus- 
band to  his  wife's  intestate  personalty  is 
not  t.iken  away  by  statutes  authorizing  a 
married  woman  to  hold  property  as  if  un- 
Tuarried  and  dispose  of  it  at  death.  Ken- 
von  V.  Saunders.   18  R.  L  590,  30  Atl.  470. 

26:  2.32 


49.  The  words  "children  alive  by  a  for- 
mer wife"  include  a  child  adopted  by  a  man 
and  such  wife,  as  those  words  are  used  in 
Ind.  Rev.  Stat.  1881,  §  829,  which  limit  the 
interest  of  a  subsequent  childless  wife  of 
such  man  to  a  life  estate.  Markover  v. 
Krauss,  132  Ind.  294,  31  N.  E.  1047,    17:  806 

50.  A  "nonresident  alien"  whose  widow, 
under  Iowa  Code,  §  2442,  "shall  be  entitled 
to  the  same  rights  in  the  property  of  her 
husband  as  a  resident,  except  as  against  a 
purchaser,"  means  one  who  resides  outside 
the  state.  Re  Gill's  Estate,  79  Iowa,  296, 
44  N.  W.  553,  9:  126 

51.  Aliens  incapable  of  inheriting  are  not 
such  "kindred"  as  can  defeat  the  right  of  a 
widow  to  take  the  whole  of  her  husband's 
lands  by  descent  if  there  are  no  kindred. 
Wunderle  v.  Wunderle,  144  111.  40,  33  N. 
E.  195,  19:  84 
Effect  of  divorce. 

Right  to  Recover  Amount  Paid  from  Wife's 
Administrator,  see  Divorce  and  Separa- 
tion, 98.    ■ 

Estoppel  to  Claim  Widow's  Share,  see  Es- 
toppel, 283. 

52.  Upon  the  rendition  of  a  decree  of 
divorce  the  relation  of  husband  and  wife 
no  longer  exists  between  the  parties  to  the 
suit,  notwithstanding  a  statute  providing 
that  the  decree  shall  not  become  absolute 
until  six  months  after  its  rendition;  and, 
if  one  of  them  should  die  within  six  months 
following  the  date  of  the  decree,  the  sur- 
vivor can  take  no  share  of  the  property  of 
the  deceased,  under  the  statute  of  descents 
and  distributions,  by  virtue  of  the  former 
relationship.  Durland  v.  Durland,  67  Kan. 
734.  74  Pac.  274,  63 :  959 

53.  A  wife  who  deserts  her  husband  and 
for  years  lives  in  adultery  with  another 
man.  having  a  marriage  ceremony  with  him 
solemnized  after  learning  that  her  deserted 
husband  has  obtained  a  divorce,  cannot,  on 
the  death  of  her  abandoned  husband,  claim 
a  widow's  rights  in  his  property  on  the 
ground  that  the  divorce  decree  was  void 
for  want  of  proper  service  of  process. 
Arthur  v.  Israel.  15  Colo.  147.  25  Pac.  81. 

10:  693 
Effect  of  separation  agreement. 

54.  A  mutual  agreement  between  hus- 
band and  wife  to  separate  on  friendly 
terms,  and  to  make  no  future  demands  upon 
each  other's  property,  carried  out  until  the 
wife's  death,  will  not  prevent  the  husband 
from  claiming  his  rights  in  her  estate. 
Foote  V.  Xickerson,  70  N.  H.  496,  48  Atl. 
1088,  54:  554 

55.  A  husband  separating  from  his  wife 
by  agreement  is  not  within  the  terms  of  a 
statute  depriving  of  his  interest  in  his 
wife's  estate  a  man  who  willingly  aban- 
dons, absents  himself  from,  or  wilfully 
neglects  to  support,  his  wife  for  a  certain 
time.  Id. 


TT.  Property   Subject   to   Descent   and   Dis- 
tribution. 

Right    of    Sepulcher    in    Particular    Burial 
Lot,  see  Cemeteries,  7. 


DESCENT  AND  DISTRIBUTION,  III..  IV. 


10^5 


Vendor's  Interest  in  Land  Contract,  see 
Executors    and    Administrators,    103. 

Partnership  Real  Estate,  see  Partnership, 
85,   91,   92. 

See  also  supra,  3;   Insurance,  V^I.  2,  b. 

For  Editorial  Notes,  see  infra,  IV.  §  5. 

56.  Equitable  estates  are  covered  by  the 
same  rule  of  descents  that  covers  the 
devolution  of  legal  estates.  Cornwell  v. 
Wulflf,  148  Mo.  542,  50  S.  W.  439,       45:  53 

57.  Under  a  trust  to  permit  a  married 
woman  to  occupy  land  and  receive  the  rents 
and  income,  and  to  execute  conveyances  as 
«he  directs,  and  protect  the  title  or  allow 
the  name  of  the  trustee  to  be  used  for  that 
purpose,  the  estate  vests  in  her  heirs  on 
her  death.  '  Id. 

58.  A  vested  remainder  subject  to  a  life 
estate  is  subject  to  the  law  of  descent  in 
case  the  remainder-man  dies  before  the  life 

•estate    terminates.     Saxton    v.    Webber,    83 
Wis.   617,  53   N.   W.   905,  20:  509 


III.  Nature  and  Incidents  of  Estate. 

Estoppel  as  to,  see  Estoppel,  42-46,  172. 
Administrator's    Right    to    Reimbursement 

from    Distributees,    see    Executors    and 

Administrators,  183-185. 
For  Editorial  Notes,  see  infra,  IV.  §  6. 

59.  The  interest  in  lands  vested  in  non- 
resident alien  heirs  by  tae  grant  of  the 
rieht  during  the  term  of  three  years  to  sell 
the  lands  and  withdraw  the  proceeds  is  a 
fee  determinable  by  the  nonexercise  of  the 
power  of  sale  within  the  time  specified. 
Schultze  V.  Schultze,  144  111.  290,  33  N.  E. 
201,  19:90 

60.  Where  a  will  contains  no  devise  of 
lands,  but  the  testator  has  disposed  of  his 
entire  estate  by  means  of  a  power  to  sell 
and  divide  thfe  proceeds  of  sale,  the  lands 
descend  to  his  heirs  at  law  subject  to  the 
power  of  sale  and  the  trusts  declared  there- 
on contained  in  the  will.  Morse  v.  Hacken- 
sack  Sav.  Bank  (N.  J.  Err.  &  App.)  47  N. 
J.   Eq.  279,  20  Atl.   961,  12:  62 

(W.  The  estate  of  an  heir  at  law  inter- 
mediate the  testator's  death  and  the  exer- 
cise of  a  power  of  sale  is  an  actual  estate 
which  is  alienable,  devisable,  and  descend- 
ible, and  liable  to  seizure  and  sale  of 
lands:  but,  when  the  power  of  sale  is 
executed,  the  estate  of  the  heir  or  his 
alienee  is  determined,  and  the  purcliaser 
under  the  power  becomes  seised  under  the 
devisor  by  a  title  paramount  to  the  title  of 
the  heir  by  descent.  Id. 

f!2.  The  purpose  of  the  statute  of  descents 
and  distributions  is  to  provide  for  the 
transmission  of  title  at  death  in  case  of 
intestacy,  and  to  regulate  the  division  of 
estates  among  heirs;  it  is  not  primarily  an 
exemption  or  homestead  law;  and,  thougli 
it  may  enlarge  the  right  to  an  exemption 
•of  real  estate  from  appropriation  to  the 
,  payment  of  debts,  it  cannot  restrict  the 
constitutional  guaranty.  Cross  v.  Benson 
«8  Kan.  495,  75  Pac.  558,  64:  560 

L.R.A.  Dig.— 65. 


Proceedings  to  prove  heirship. 

63.  The  rights  of  a  person  under  an  al- 
leged contract  to  leave  him  as  heir  the 
property  of  the  other  party  cannot  be  de- 
termined in  proceedings,  under  Mich.  Pub. 
Acts  1887,  act  No.  278,  to  determine  who 
are  the  legal  heirs  or  legal  representatives 
of  such  person.  Wright  v.  Wright,  99 
Mich.  170,  58  N.  W.  54,  23:  19G 
Debts  of  decedent. 

Liability  for  Breach  of  Covenant,  see  Cove- 
nant,  83. 

Remedy  of  Creditors,  see  Election  of  Reme- 
dies, 15. 

See  also  Executors  and  Administrators,  140. 

For  Editorial  Notes,  see  infra,  IV.  §§  6,  7. 

64.  Creditors  may,  under  Ky.  Stat.  §§ 
2087,  2089,  follow  the  lands  of  a  decedent 
into  the  hands  of  heirs  or  transferees  who 
are  not  bona  fide  purchasers  for  value. 
Kirtley  v.  Holmes,  46  C.  C.  A.  102,  107 
Fed.  1,  52:  738 

65.  Land  descended  or  devised  may  be 
purchased  in  good  faith  and  for  value,  free 
from  its  conditional  liability,  under  Mary- 
land statutes,  for  debts  of  the  decedent, 
when  the  records  of  the  orphans'  court  show 
a  final  settlement  of  the  personal  estate 
and  full  payment  of  all  proved  debts  and 
costs  of  administration,  although  the  stat- 
utes do  not  expressly  make  any  saving  of 
the  rights  of  bona  fide  purchasers,  or  fix  any 
time  for  terminating  such  liability.  Van 
Bibber  v.  Reese,  71  Md.  608,  18  Atl.  892, 

6:332 

66.  A  judgment  against  an  heir  or  de- 
visee upon  his  individual  ,  debt,  and  the 
levy  of  an  execution  issued  thereon  upon 
lands  descended  or  devised  prior  to  the 
commencement  of  an  action  agains't  him 
upon  a  debt  of  his  ancestor,  the  testator, 
under  the  New  Jersey  act  fixing  the  liabil- 
ity of  an  heir  or  devisee  for  such  debt,  is 
not  an  alienation  of  the  property  which 
subjects  him  to  a  personal  judgment  for 
the  value  of  the  lands.  Muldoon  v.  Moore 
(N.  J.  Sup.)   55  N.  J.  L.  410,  26  Atl.  892. 

21:89 


IV.  Editorial   Notes. 

§  I.  Generally. 

Law   governing.     10:  766.* 

Statute  of  Merton.     13 :  277.* 

The    word    "heirs"    construed    and    defined. 

8:732,*     747;*      12:721;* 

13:46.* 
Within    meaning    of    insurance    policy. 

30:  593. 
"Heir  apparent"  defined.     5:  122.* 
"Heir   presumptive"   defined.     5:  122.* 
Who   are   "next  of  kin."     15:  300. 
Distribution  of  estate  per  stirpes.     11:  306.* 
To  whom  property  held  in  trust  passes  on 

death    of   trustee.    1:3.34.* 
Disinheriting    heir;    heirs    favored  •  at    law. 

2:  848;*   11:767.* 
When  title  vests  in  state.     12:  531.* 
Descent  to  murderer.     5:  344.* 
Inheritance  bv  or  from  adopted  child.     17: 

435. 
Law  governing.     65:  186. 


1026 


DESCENT  AND  DISTRIBUTION,  IV.  (Ed.  Notes.) 


Assessment    of    tax    on    property    of   dece- 
dent's estate.     56:  634. 
§  2.  Among  kindred  of  half  blood. 
The    common-law   doctrine.     29:  541. 
In  the  United  States.     29:  542. 
Meaning  of  the  words.     29:  542. 
In   general.     29:  542. 
Ancestor.     29:  542. 
Blood.     29:  544. 

Brothers    and   sisters.     29:  544. 
No  distinction  between  the  whole  and  half 

blood.     29:546. 
In  the  case  of  ancestral  estates.     29:  552. 
When  the  statute  not  express.     29:561. 
Cases  wherein  the  whole  blood  is  preferred. 

29:  561. 
When  half  blood  preferred  to  remoter  rela- 
tive  of   the   whole   blood. 
29:  564. 
WTien   half   blood   take   half   portions.     29: 

565. 
Shifting  descents.     29:566. 
Equitable   conversion.     29:  567. 
§  3.  Inheritance  by,  through,  or  from  alien. 
Alien's  right  to  inherit.     31:  177. 

The  common-law  doctrine.     31:  177. 
Upon  what  the  right  depends.     31:  179. 
Power  of   the   states   to  regulate.     31 : 

179. 
In  lands  granted  for  military  services 
and  colonization.     31:180. 
Inheritance  of  patent  lands.     31:  180. 
Effect  of  annexation  of  territory  or  di- 
vision of  an  empire.     31: 
181. 
The  effect  of  naturalization.     31 :  181. 
Effect   of  marriage   with   an   alien   and 
residing    abroad.     31:  182. 
Effect   of   state   Constitutions   and   statutes 
upon   the   question  of   in- 
heritance  by    or   from   an 
alien.     31 :  85. 
United    States   statutes.     31:  85. 
State    Constitutions    and   statutes    and 
their  construction.   31:  85. 
Decisions    under   the    English    statutes. 
31:  106. 
Effect  of   treaties  upon  an  alien's  right  to 
inherit.     32:  177. 
General     doctrine     respecting    treaties. 

32:  177. 
Great    Britain.     32:  179. 
France.     32:  183. 
Bremen.     32:  185. 
Germany.     32:  185. 
Grand  Duchv  of  Hesse.     32:  185. 
Guadalupe    Hidalgo.     32:  186. 
Hanover.     32:  186. 
Hanseatic.     32:  186. 
The  Netherlands.     :52:  186. 
Spain.     32:  186. 
Sweden.     .32:  187. 
Prussia.     ,32:  187. 
Switzerland.     32:  187. 
Wiirttemberg.     32:  189. 
Effeet   of    state    statutes   and    Constitutions 
upon    inheritance    through 
an    alien.     31:  146. 
Tlio    Knjrlish    doctrine.     31:140. 
The  effect  of  stitte  legislation.     31:  147. 


§  4.  Inheritance  by,  through,  or  from  ille- 
gitimate. 

On  the  part  of  the  mother.     23:  753. 

Marriages    null.     23:  753. 

Legalizing  illegitimate  by  statute  and 
recognition.     23:  754. 

Inheritance  by  illegitimate  from  his  mother. 
23:  754. 

Inheritance  by  illegitimate  under  will.  23: 
754. 

Inheritance  by  illegitimates  from  brothers 
and   sisters.     23:  755. 

Inheritance  by  illegitimates  through  mother 
or  father.     23 :  756. 

Inheritance  by  brothers  and  sisters  of 
mother  or  father  of  ille- 
gitimate.    23:  756. 

Inheritance  by  mother  from  an  illegitimate 
child.     23 :  757. 

Inheritance  through  illegitimate.     23:  757. 

Inheritance  by  widow  or  husband  of  illegiti- 
mate.    23:  757. 

Inheritance  by  legitimate  children  from  il- 
legitimate children  of  the 
same  mother.     23:  758. 

Illegitimates  a«  next  of  kin.     15:  301. 

Conflict  of  laws  as  to  legitimacy  of  distrib- 
utee.    65:  178." 

§  5.  Rights  and  remedies  respecting   prop- 
erty of  estate. 

Right  of  children,  as  against  heirs,  in  dece- 
dent's homestead.     56:  65. 

I^espective  rights  of  surviving  partner  and 
heirs  of  deceased  partner. 
7:793.* 

Rights  of  heirs  in  partnership  real  estate. 
27 :  348. 

Right  to  rents  on  lease  of  intestate's  prop- 
erty.    40:  321. 

Right  to  have  judgment  against  decedent 
set   aside.     54:  761. 

Fixtures  as  between  personal  represen- 
tatives and  heirs.    10 :  725.* 

Remedy  of  distributee  as  to  accounting  of 
which  he  had  no  notice  and 
on  which  he  did  not  ap- 
pear.    63:  95. 

§  6.  Nature    and    incidents    of    interest    of 
heir  or  distributee. 

Levy  on  interest  of  heir  in  ancestor's  land. 
23:  643. 

Garnishment  of  distributive  shares  before 
settlement.     59:  387. 

Garnishment  of  husband's  interest  in  wife's 
legacy  or  distributive 
share.     47 :  360. 

Validity  of  sale  of  expectancy  by  a  prospec- 
tive   heir.   *33:  266. 

Validity  of  transactions  between  heir  and 
ancestor  relating  to  for- 
mer's expectancy.  32:  595. 

§  7.  Liability    of    heirs    for    obligations    of 
ancestor. 

Generally.     21:89. 

Liability  on  covenant  or  specialty  debt.  21: 
90. 

Remedy  in  equity.     21:91. 

Conditions  of  suits  against  heirs.     21 :  92. 

Pleading   and    proof.     21:92. 

Parties."    21 :  93. 

Judgment.     21 :  94. 

In    Louisiana.     21 :  94. 


DESCRIPTION— DEVISE. 


1027 


DESCRIPTION. 

Of  Property  Mortgaged,  see  Chattel  Mort- 
gage, II.  b;    Mortgage,   I.  e. 

Of  Land,  Sufficiency  to  Satisfy  Statute  of 
Frauds,  see  Contracts,  205-209. 

Of  Parties  in  Deed,  see  Deeds,  II.  b. 

Of  Property  in  Deed,  see  Deeds,  II.  c. 

Of  Proposed  Drain,  see  Drains  and  Sewers, 
12. 

Of  Office  in  Ballot,  see  Elections,  115-119. 

Of  Property  of  Limited  Partnership,  see 
Partnership,    148-152. 

Of  Parties  in  Pleading,  see  Pleading,  II.  c. 

Warranty  by,  see  Sale,  II.  b. 

Of  Property  Taxed,  see  Taxes,  373-379. 

Of  Beneficiary  in  Will,  see  Wills,  III.  b. 

Of  Property  Devised,  Mistake  in,  see  Wills 
232-236. 


DESERTION. 


Penal  Statute  against  Inducing  Seamen  to 

Desert,  see  Commerce,  14,  15. 
As  Ground   for    Divorce,    see    Divorce    and 

Separation,  III.  b. 
Right  of  Deserted  Wife  to  Sue,  see  Husband 

and  Wife,  202-204. 
Criminal  Liability   for  Desertion    of    Wife, 

see  Husband  and  Wife,  IV. 


DESIGN. 
As  Trademark,  see  Trademark,  79,  80. 


♦  *» 


DE  SON  TORT. 

Executors,     see     EKecutors     and    Adminis- 
trators, 42. 


DESTINATION. 

Leaving  Passenger  at,  see  Carriers,  II.  a,  6. 


DESTRUCTION. 


Of  Wooden  Building,  see  Buildings,  19. 

Of  Property,  Police  Power  as  to,  see  Consti 

tutional  Law,  967-972. 
Of  Property  Used  in  Gaming,  see  Gaming; 

2-6. 
Of  Property  to  Protect  Health,  see  Health, 

TV. 
Of    Intoxicating    Liquors,    see    Intoxicating 

Liquors,  III.  h. 
Of  Property  as  a  Nuisance,  see  Nuisances, 

136-142. 
Of  Record,  see  Records.  1,  2. 
Liability     for     Rent    after    Destruction    of 

Property,    see    Landlord    and    Tenant, 

201-209. 
Revocation  of  Will  by,  see  Wills,  62. 


DETAINER. 

Forcible  Detainer,   see  Forcible  Entry  and 
Detainer. 


DETECTIVE. 


Apparent  Co-operation  of,  see  Criminal  Law, 

62-67. 
Guaranty  of  Salary  of,  see  Guaranty,  19. 
Indictment   for  Acting  as,  see   Indictment, 

etc.,  53. 
Injunction    against    Following    Person,    see 

Injunction,  60. 
Libelous  Communication  to,   see  Libel   and 

Slander,  123. 
Nature  of  Office,  see  Officers,  2. 
Title  of  Statute  as  to,  see  Statutes,  213. 
Instruction  as  to  Credibility  of  Evidence  of, 

see  Trial,  717. 

Mere  holding  one's  self  out  as  a  private 
detective  does  not  of  itself  amount  to  an 
offense,  under  a  statute  forbidding  any  per- 
son to  "act  as  a  private  detective."  State 
V.  Bennett,  102  Mo.  356,  14  S.  W.  865, 

10:  717 


DETERMINABLE  FEE. 

Conveyance  of,  see  Deeds,  71. 

Of  Alien  Heirs,  see  Descent  and  Distri- 
bution, 59. 

Termination  of,  by  Execution  of  Power,  see 
Descent  and  Distribution,  61. 

In  Land  for  Jail,  see  Jails,  1. 

Rights  of  Owner  of,  see  Mines,  44. 

Right  of  Owner  to  Partition,  see  Partition, 
1. 

As  Creating  Perpetuity,  see  Perpetuities,  16. 

See  also  Real  Property,  I.  a,  3. 

Editorial  Notes. 
Nature  and  creation.     15:  231. 


See  Replevin. 


DETINUE. 


Editorial  Notes. 


Whether  action  to  be  brought  against  execu* 
tor  or  administrator  in 
personal  or  representative 
capacity.    51:266. 


DEVASTAVIT. 


What  is,  see  Executors  and  Administrators, 

76a. 
Complaint  in  Action  for,  see  Pleading,  426. 
See  also  Waste. 


DEVISE. 


See  Wills,  IH. 


1028  DEVISEES— DIPLOMATIC  AND  CONSULAR  OFFICERS. 

DEVISEES.  f  DIPLOMA. 


As  Parties  to  Action,,  see  Parties,  145. 


DIAMONDS. 


Custom  of  Trade  as  to,  see  Custom,  26. 
Proof  of  Custom  as  to,  see  Evidence,  1090. 


DICTATION. 


To    Stenographer,   as  Publication  of  Libel, 
see  Libel  and  Slander,  161. 


DIES. 

Use  of,  see  Engraver. 


DIGESTS. 

Use  of  Copyriglited  Reports  in  Making,  see 
Copyright,  3. 

Right  of  Compiler  of,  to  Monopoly  of  Opin- 
ions, Decisions  and  Syllabi  by  Courts, 
see  Copyright,  6,  7. 

Infringement  of.  see  Copyright,  25-29. 

Burden  of  Proving  Infringement  of  Copy- 
right of,  see  Evidence,  364,  748,  749. 

Injunction  against  Infringing  Paragraphs 
of,  see  Injunction,  430,  431. 


DIKES. 

As  Inlernal  Improvements,  see  Internal  Im- 
provements, 4. 


^•» 


DILIGENCE. 

Question  for  Jury  as  to,  see  Trial,  II.  c,  3. 

♦-•-•■ 

DIMENSION  STONE. 

What  are,  see  Contracts,  357. 


DIOCESE. 

Gift  to,  SCO  Charities.  84.  Soa. 
♦-•-•^ 


DIP. 

Pviirht  to  Follow,  see  :VIines.  24-20. 


Trustees  Signing  in  Blank,  see  Colleges,  9. 
Right  of  Holder  of,  to  License  as  Physician, 
see  Physicians  and  Surgeons,  7. 


DIPLOMATIC      AND      CONSULAR      OF- 
FICERS. 

Jurisdiction  over,  see  Courts,  446. 

The  jurisdiction  of  the  consul  of  Sweden 
and  Norway  at  Boston  over  a  claim  for 
wages  by  one  of  the  crew  of  a  Norwegian 
vessel,  who  has  left  the  ship  at  that  port,  is 
exclusive  of  any  jurisdiction  in  the  first 
instance  of  the  courts  of  the  state  under 
article  13  of  the  treaty  of  1827  between  the 
United  States  and  Sweden  and  Norway, 
making  the  consuls  judges  and  arbitrators 
"in  such  differences  as  may  arise  between 
the  captains  and  crews  of  the  vessels  be- 
longing to  the  nation  whose  interests  are 
committed  to  their  charge,  without  the 
interference  of  the  local  authorities,  unless 
the  conduct  of  the  crews  or  of  the  captains 
should  disturb  the  order  or  tranquillity  of 
the  country."  Telefsen  v.  Fee,  168  Mass. 
188,  46  N.  E.  562,  45:  481 

Editorial  Notes. 

§  1.  Generally. 

Injunction       against      proceedings      before. 

21:  75. 
§  2.  Jurisdiction  and  powers. 
Jurisdiction  in  criminal  cases.     45:  481. 
Generally.    45:  481. 
In  non-Christian  countries.     45:  484. 
Power  to  send  criminals  to  home  coun- 
try for  trial.     45:  485. 
In  case  of  deserting  seamen.    45:  486. 
Jurisdiction  in  civil  cases.     45:  486. 
In  China  and  Japan.     45:  486. 
In  other  non-Christian    countries.     45: 

487. 
As  to  controversies  between  seamen  and 

masters  of  foreign  vessels. 

45:  488. 
As    to    discharge    of    seamen     abroad. 

45:  493. 
As  to  disabled  vessels.    45:  495. 
In  prize  cases.    45:  495. 
In      suits      between      French      citizens. 

45:  495. 
Powers  of  consul  in  other  matters.    45:  496. 
To   assert   claims   for  his   citizens   and 

country.    45:  496. 
To  administer  on  estates.     45:  496. 
To       exercise       diplomatic       functions. 

45:  497. 
To     perform     marriage    cerenionv.     45: 

497. 
To  grant  certificates.    45:  497. 
To  take  depositions  and  affidavits.    45: 

499. 
To  take  acknowledgments  of  deed  and 

powers    of     attorney.    45: 

499. 
To  retain  ship's  papers.     45:  500. 
To  license  illeeal  acts.     45:  500. 


DIPSOMANIAC— DISCLAIMER. 


102» 


To  contract.    45:  500. 
To  serve  process.    45:  500. 
§  3.  Exemptions  and  privileges. 
Generally.    45:  579. 

Jurisdiction    of    civil    actions    against    con- 
suls.    45:  580. 
Supreme  Court  of  the    United    States. 

45:  580. 
Circuit    courts    of    the    United    States. 

45:  581. 
United  States  district  courts.     45:  581. 
State  courts.    45:  582. 
English  courts.    45:  584. 
Jurisdiction     of     criminal     actions     against 

consuls.     45:  584. 
Exemption  from  obligation  to  appear  as  a 

witness.    45:  588. 
Exemption  from  taxation.     45:  587. 
Exemption  from  military  and   jury   duties. 

45:  587. 
Domicil.    45:  587. 
Trading  with  an  enemy.    45 :  588. 
Exemption   from   liability    for   judicial   and 
other  acts.    45:  588. 


DIPSOMANIAC. 


Liability  for  False    Imprisonment    of,    see 
Physicians  and  Surgeons,  54. 


DIRECT. 

Meaning  of  Term,  see  Insurance,  303a. 


DIRECTION  OF  VERDICT. 

Conclusiveness  of  Judgment  on,  see  Judg- 
ment, 104. 
Sufficiency  of  Exception  to,  see  Trial,  64. 
In  General,  see  Trial,  II.  d,  3. 


DIRECTORS. 


Joining     Causes     of     Action     against,     see 

Action  or  Suit,  95. 
Of  Association,  see  Associations.  26. 
Of  Bank,  see  Banks.  52,  56-66,  382,  383. 
Vested  Right  of  Stockholders  to  Elect,  see 

Constitutional  Law,  138. 
Power  to  Change  Terms  of,  see  Corporations, 

72. 
Of  Corporation  Generally,  see  Corporations, 

IV.  g. 


DIRECTORY  PROVISIONS. 

Of  Statute,  see  Statutes,  485-493. 


DISABILITIES. 


Of  Married  Woman,  see  Husband  and  Wife, 
I.  b. 


Of  Infants,  see  Infants,  I.  d. 
Effect  of,   on   Running   of   Limitations,   see 
Limitation  of  Actions,  II.  1. 


DISABLED  SOLDIERS. 

National  Home  for,  see  Charitable  Institu- 
tions, 2. 


DISAFFIRMANCE. 

Of  Infant's  Contract,  see  Infants,  I.  d,  2,  h. 

♦-•-♦ ■ 

DISBARMENT. 

Of  Attorney,  see  Attorneys,  I.  b. 

Editorial  Notes. 

Necessity  of  bad  or  fraudulent  motive  to 
justify  disbarment  of  at- 
torney.   18:  401. 


DISBURSEMENTS. 


Reimbursing  Personal  Representative  for, 
see  Executors  and  Administrators,  IV. 
c,  2. 


DISCHARGE. 


In  Bankruptcy,  see  Bankruptcy,  IV. 

Of  Indorser,  see  Bills  and  Notes,  III.  c. 

Of  Mortgage,  see  Chattel  Mortgage,  V.; 
Mortgage,  V. 

Of  Insolvent  Corporation,  see  Corporations, 
769,  770. 

Of  Jury,  as  Former  Jeopardy,  see  Criminal 
Law,  153-158. 

Of  Personal  Representative,  see  Executors 
and  Administrators,  IV.  c. 

Of  Grand  Jury,  see  Grand  Jury,  17,  18. 

Of  Guarantor,  see  Guaranty,  II. 

On  Habeas  Corpus,  see  Habeas  Corpus,  I.  c. 

From  Insane  Asylum,  see  Incompetent  Per- 
sons. 30. 

Of  Insolvent,  see  Insolvency,  V. 

Of  One  Tort  Feasor  by  Release  of  Other,  see 
Joint  Creditors  and  Debtors,  II. 

Of  Judgment,  see  .Judgment,  V. 

Of  Employee,  see  Master  and  Servant,  I.  e. 

Of  Lien,  see  Mechanics'  Liens,  124. 

Of  Surety,  see  Principal  and  Surety,  I.  b. 

Of  Trust,  see  Trusts,  103. 


DISCLAIMER. 


Objection  to,  see  Pleading.  58. 
Conclusiveness  of.  see  Pleading,  461. 
By  Trustee,  see  Trusts,  116. 


1030 


DISCLOSURE— DISCOVERY  AND  INSPECTION.  I. 
DISCLOSURE.  I.  In  General. 


As  Violation  of  Provisions  as  to  Due  Pro- 
cess,  see  Constitutional  Law,  824,  825, 

Contempt  in  Refusal  to  Make,  see  Con- 
tempt, 4L 


DISCONTINUANCE. 


Of   Action,    see    Dismissal     or     Discontinu- 
ance. 
Of  Highway,  see  Highways,  V.  a. 
Of  Park,  see  Parks  and  Squares,  6-10. 


DISCOUNT. 


By  Bank,  see  Banks,  277-285;  VIIL  §  17. 
Effect  of  Stipulation   for.  on  Xegotiability 

of  Xote,  see  Bills  and  Notes.  03. 
Acquiring  Negotiable   Paper  at  Illegal  Dis 

count,  see  Bills  and  Xotes.  182. 
On  Dues  Paid  in  Advance,  see  Building  and 

Loan  Associations,  8. 
Of  County  Warrant,  see  Counties.  56. 
L^sury  in,  see  Lsury,  33-37.  42.  43,  50. 

Editorial  Notes. 

Taking  interest  in  advance.     29:  761. 


DISCOUNT  COMMITTEE. 

Imputing  Knowledge  of,  to  Bank,  see  Notice, 
60,  70. 


DISCOVERY  AND   INSPECTION. 

T.  In  General. 
n.  Physical  Examination. 

III.  Submitting  Person  to  X-Ilays. 

IV.  Editorial  Xotes. 

Compelling   Attorneys   to   ^lake   Discovery, 

see  Attorneys.  86. 
Requiring  One  Convicted  of  Drunkenness  to 

Disclose  Source   of  Liquor,   see  Consti- 
tutional Law.  825. 
Refjisa!    to   Disclose   Source   of  Intoxicating 

Liquors  as  Contempt,  see  Contempt.  41. 
Disobedience  of  Order  for,  as  Contempt,  see 

Contempt,  38. 
Right    of   ('ori)oration    to   Refuse    to    ^lake. 

sec  Corporations.  fl4. 
.lurisdiction  of  Action  to  Compel,  see  Courts. 

80. 
Answers  to  Interrogatories  as  Evidence,  see 

Kvidence.   885.   803. 
Of  Mining  Claim,  see  Klines.  2-6. 
As  to  Intern )<,'ntorv  in  Pleading,  sec  i'lead- 

insr.  4R0. 
P>ill  for,  by  Receiver,  see  Receivers,  119. 
As  to  Depositions,  sec  Depositions. 


1.  Bills  of  discovery  were  not  abolished 
by  the  statutes  empowering  the  Federal 
courts,  in  actions  at  law,  to  require  the  par- 
ties to  produce  books  and  writings,  and 
making  parties  to  suits  at  law  competent 
witnesses  therein.  Brown  v.  McDonald,  67 
C.  C.  A.  59,  133  Fed.  897,  68:  462 

2.  Bills  of  discovery  are  not  authorized 
under  the  Texas  practice,  in  which  law  and 
equity  are  blended  into  one  system,  and  in 
which  statutory  provisions  have  been  made 
for  the  discovery  of  evidence  by  simple  in- 
terrogatories in  a  pending  suit,  and  for  dep- 
ositions of  the  adverse  party.  Cargill  v. 
Kountze  Bros.  86  Tex.  386,  25  S.  W.  13, 

24:  183 

3.  A  claim  of  exemption  from  discovery 
on  the  ground  that  it  would  fix  a  penal  lia-» 
bility  upon  the  party  cannot  be  sustained 
where  a  prosecution  for  the  penalty  is  al- 
ready barred  by  the  statute  of  limitations. 
Manchester  &  L.  R.  Co.  v.  Concord  R.  Co. 
66  X.  H.  100,  20  Atl.  383,  9:  689 

4.  That  an  action  at  law  seeks  damages 
for  a  personal  tort  will  not  defeat  a  bill 
for  discovery  in  aid  of  it,  if  it  docs  not  in- 
volve moral  turpitude  or  immoral  conduct 
on  the  part  of  defendant.  Revnolds  v. 
Burgess  Sulphite  Fibre  Co.  71  N.  H.  332.  51 
Atl.  1075,  57:949 

5.  A  suit  to  reach  ehoses  in  action  of  the 
debtor  in  satisfaction  of  a  judgment  is  not 
authorized  by  a  statute  providing  for  a  bill 
of  discovery  in  case  an  execution  is  re- 
turned unsatisfied,  and  empowering  the 
court  to  compel  satisfaction  of  the  judg- 
ment out  of  any  propertv  discovered.  Hall 
V.  Henderson,  134  Ala.  455.  32  So.  840, 

63:  673 
Production  of  documents. 
Admissibility    of    Documents    Produced    on 

Xotice,  see  Evidence,  TV.  s. 
Inquiry  into  Power  to  Compel,  see  Habeas 
Corpus,  32. 
0.  An  order  for  the  production  of  docu- 
ments may  be  had  under  R.  I.  Pub.  Stat, 
cha^p.  214,  §  45.  where  the  ease  would  en- 
title the  plaintiff  to  relief  under  the  ancient 
bill  of  discoverv.  Arnold  v.  Pawtuxet  Val- 
lev  Water  Co.'l8  R.  L   189.  26  Atl.  55. 

19:  602 

7.  It  is  not  necessary  to  show  that  the 
plaintiff  will  be  unable  to  prove  his  case 
without  the  evidence  sought  by  an  order 
for  the  production  of  documents,  in  order 
to  give  him  a  right  thereto,  if  he  shows 
that  he  is  justly  entitled  thereto  by  way  of 
evidence  in  the  preparation  and  trial  of  his 
case.  Id. 

8.  It  need  not  be  shown  that  it  is  abso- 
lutely necessary  for  plaintiff  to  have  access 
to  a  l>o(>k  in  order  to  prepare  his  case  for 
tiinl.  in  order  to  obtain  the  production  of 
the  same  to  aid  him  in  furnishing  a  bill  of 
particulars.  Id. 

9.  An  order  to  compel  a  witness  to  pro- 
duce hooks  and  papers  was  unauthorized 
when  there  was  no  showing  by  affidavit  or 
otherwise  that  they  contained  any  evidence 
material   to   the   cause,  while  the   onlv   evi- 


DISCOVERY  AND  INSPECTION.  II. 


1031 


dencc  on  the  point  showed  that  they  did 
not  contain  such  evidence,  although  counsel 
demanding  them  said  that  he  expected  to 
prove  bv  them  certain  material  or  pertinent 
facts.  'Ex  parte  Clarke,  126  Cal.  235,  58 
Pac.  546,  46:  835 

10.  A  creditor  of  a  corporation  which  has 
assumed  the  payment  of  the  obligations, 
created  before  its  incorporation,  is  entitled 
to  the  production  of  its  record  book  in  or- 
der to  furnish  a  bill  of  particulars  of  his 
claim  for  services  both  prior  to  and  after 
the  incorporation.  Arnold  v.  Pawtuxet  Val- 
ley  Water    Co.    18   R.    I.    189,   26    Atl.    55. 

19:  602 

11.  A  party  may  be  entitled  to  the  pro- 
duction of  a  document  in  order  to  prepare 
for  trial,  as  well  as  to  aid  him  oi?  the  trial. 

Id. 

12.  The  record  book  of  a  corporation  con- 
taining its  proceedings  before  and  after  in- 
corporation is  a  "document"  within  the 
meaning  of  a  statute  as  to  producing  docu- 
ment?. Id. 
Production  of  broken  machinery. 

1.3.  A  bill  of  discovery  will  lie  to  com- 
pel an  employer  to  produce,  for  the  inspec- 
tion of  plaintiff,  the  broken  parts  of  ma- 
chinery, defects  in  which  are  alleged  to 
have  caused  a  death,  to  recover  damages 
for  which  an  action  has  been  instituted  at 
law  which  cannot  be  satisfactorily  prepared 
for  trial  without  such  inspection.  Reynolds 
V.  Burgess  Sulphite  Fibre  Co.  71  N.  H.  332. 
51  Atl.  1075,  57:  949 

14.  The  production  of  broken  machinery 
may  be  compelled  for  examination  by  per- 
sons intending  to  testify  as  experts  in  an 
action  at  law  for  personal  injuries  caused 
by  its   breaking.  Id. 

15.  .Jurisdiction  to  grant  discovery  of 
broken  machinery  in  aid  of  an  action  for 
injuries  caused  by  its  breaking  is  not  ousted 
1»y  statutes  removing  the  disability  of  par- 
ties as  witnesses,  authorizing  the  taking  of 
depositions  before  trial,  or  giving  the  court 
authority  to  order  a  view  at  the  trial.  Id. 
Examination  of  horse. 

10.  An  order  of  court  that  a  veterinary 
surgeon  may  be  sent  on  the  premises  of  a 
party  against  his  will  to  examine  a  horse 
whose  condition  is  in  dispute,  provided  the 
owner  or  any  person  he  may^  select  shall 
accompany  .such  surgeon,  is  in  excess  of 
the  power  of  the  court.  Martin  v.  Elliott. 
106  Mich.  130,  63  N.  W.  998,  31:  169 


n.  Physical  Examination. 

Prejudicial  Error  as  to,  see  Appeal  and  Er- 
ror. 897.  935-937. 

Due  Process  in  Compulsory  Physical  Exam- 
ination of  Accused,  see  Constitutional 
Law.   824. 

Exhibition  of  Person  to  Jury,  see  Evidence, 
1040-1044. 

Exhibition  of  Urine  to  Jury,  see  Evidence. 
10.39. 

Evidence  of  Refusal  to  Submit  to,  see  Evi- 
dence,  1913-1915. 


Physician  Acting  as  Independent  Contractor 
in  Making,  see  Master  and  Servant, 
712. 

Instruction  as  to  Effect  of  Refusal  to  Con- 
sent to,  see  Trial,  743. 

For  Editorial  Notes,  see  infra,  IV. 

17.  An  order  for  the  physical  examina- 
tion  of  the  plaintiff  in  an  action  for  person- 
al injuries,  under  N.  Y.  Laws  1893,  chap. 
721,  amending  N.  Y.  Code  Civ.  Proc.  §  873, 
can  be  made  only  in  connection  with,  or  as 
a  part  of,  an  order  for  the  examination  of 
the  party  before  trial  and  in  conformity 
to  the  general  provisions  for  such  examina- 
tions; and  the  physical  examination  by 
surgeons  cannot  be  authorized  as  an  inde- 
pendent proceeding.  Lyon  v.  Manhattan 
R.  Co.  142  N.  Y.  298,  37  N.  E.  113,  25:  402 
Power  to  order  generally. 

See  also  infra,  32. 

18.  .Judicial  power  to  compel  a  plaintiff 
to  submit  to  a  physical  examination  does 
not  exist  at  common  law.  May  v.  Xorthern 
P.  R.  Co.  32  Mont.  522,  81  Pac'  .328,    70:  111 

19.  At  common  law,  courts  have  no  au- 
thority to  order  an  examination  of  the  per- 
son of  one  alleged  to  have  been  injured  by 
the  negligence  of  another  for  the  purpose  of 
ascertaining  the  extent  of  the  injuries. 
Austin  &  X.  W.  R.  Co.  v.  Cluck,  97  Tex. 
172,  77  S.  W.  403,  64:  494 

20.  A  court  has  no  power  to  compel  a 
plaintiff  to  submit  to  a  physical  examination 
by  a  physician,  in  the  absence  of  any  stat- 
utory authority.  Stack  v.  New  York.  N.  H. 
&  H.   R.   Co.   177  Mass.   155,  58  N.   E.  686. 

52 :  328 

21.  A  physical  examination  before  trial, 
of  a  party  to  a  civil  action,  cannot  be  com- 
pelled by  a  court  in  the  absence  of  a  stat- 
utory enactment.  McQuigan  v.  Delaware, 
L.  &  W.  R.  Co.  129  N.  Y.  50,  29  N.  E.  235, 

14:  466 

22.  The  court  cannot,  in  the  absence  of 
express  legislative  authority,  direct  the 
plaintiff  in  an  action  to  recover  for  person- 
al injuries  to  submit  to  an  examination  of 
his  person,  under  a  constitutional  provision 
that  the  people  shall  be  secure  in  their  per- 
sons from  all  unreasonable  seizures  and 
searches.  Austin  &  N.  W.  R.  Co.  v.  Cluck, 
97  Tex.  172,  77  S.  W.  403.  64:  494 

23.  Trial  courts  have  power  to  order  the 
surgical  examination,  by  experts,  of  the 
person  of  a  plaintiff  seeking  to  recover  for 
personal  injuries.  Alabama  G.  S.  R.  Co. 
V.  Hill,  90  Ala.  71,  8  So.  90,  9:  442 

21.  An  order  for  the  examination  of  a 
woman  by  medical  experts  appointed  by  the 
court  may  be  made  in  an  action  to  recover 
damages  for  personal  injuries.  Lane  v. 
Spokane  Falls  &  N.  R.  Co.  21  Wash.  119. 
57  Pac.  367,  46:  153 

25.  It  is  within  the  discretion  of  the  trial 
court  to  require  the  plaintiff  suing  for  a 
physical  injury  alleged  to  be  permanent  to 
submit  to  examination  by  competent  physi- 
cians at  the  instance  and  at  the  expense  of 
the  defendant  in  the  action,  to  ascertain 
the  nature,  extent,  and  probable  duration  of 
the  injury,  so  as  to  afford  means  of  proving 


103-2 


DISCOVERY  AND  INSPECTION,   III —DISCREDITING. 


the  same  at  the  trial.  By  Ga.  Code,  §  206, 
every  court  has  the  power  to  control,  in  the 
furtherance  of  justice,  the  conduct  of  all 
persons  connected  with  a  judicial  proceed- 
ing; before  it,  in  every  matter  appertaining 
thereto.  Richmond  &  D.  R.  Co.  v.  Childress, 
82  Ga.  719,  9  S.  E.  602,  3:808 

26.  In  an  action  for  damages  for  a  negli- 
gent injury  to  the  eyes,  claimed  to  be  per- 
manent, a  timely  request  for  an  expert  phys- 
ical examination  of  the  injured  organs  in 
the  usual  and  ordinary  manner  should  be 
granted,  although  involving  the  use  of  drugs 
for  dilating  the  pupils  of  the  eyes;  sub- 
ject, however,  to  the  limitation  that  the  ex- 
amination do  not  produce  serious  discomfort 
or  anv  deleterious  consequence.  Atchison, 
T.  &  S.  F.  R.  Co.  v.  Palmore,  68'  Kan.  545, 
75  Pac.  509,  64:  90 

27.  A  personal  examination  by  physicians 
or  matrons  skilled  in  such  matters  may  be 
ordered  of  a  woman  suing  for  divorce  on  the 
ground  of  malformation  or  abnormal  physi- 
cal proportions  amounting  to  physical  in- 
capacity; and  a  similar  examination  of  de- 
fendant ma}'^  be  ordered  if  he  contests  her 
right  to  relief.  Anonvmous,  89  Ala.  291.  7 
So.  100.  '  7:  425 
Grounds  for  refusing. 

28.  A  motion  for  the  surgical  examination 
by  experts,  of  plaintiff  suing  for  personal 
injuries,  should  not  be  denied  merely  be- 
cause she  is  a  young  woman  of  a  nervous 
temperament  and  of  delicate  and  refined 
feelings,  where  it  appears  that  such  ex- 
amination would  not  involve  any  ill  conse- 
quences to  her.  and  that  she  has  several 
times  submitted  to  be  so  examined  by  her 
attending  physician,  without  any  ill  results. 
Alabama  G.  "S.  R.  Co.  v.  Hill,  90  Ala.  71.  8 
So.  90.  9:  442 

20.  An  examination  by  instiniments  to  de- 
termine the  condition  of  plaintiff's  bladder, 
in  an  action  for  injury  thereto,  cannot  be 
ordered  without  abusing  the  discretion  of 
the  court,  where  the  purpose  of  it  is  to 
empty  the  bladder,  and  the  evidence  of 
plaintiff's  physicians  is  that  the  examina- 
tion would  not  be  prvident,  and  that  of  de- 
fendant's physicians  is  that  it  would  be 
safe  if  the  bladder  was  healthy,  but  would 
1)e  absolutely  dangerous  in  some  conditions. 
O'Brien  v.  La  Crosse,  99  Wis.  421.  75  X.  W. 
81.  40:831 

30.  Tt  is  not  sufficient  grovnid  for  denying 
a  motion  for  a  physical  examination  of 
plaintiff  in  an  action  for  personal  injuries, 
that  her  attending  physician  had  made  the 
examination  and  had  fully  deposed  to  the 
injuries  complained  of.  where  conclusions 
and  opinions  as  testified  to  by  him  do  not 
meet  the  approval  of  other  reputable  phy- 
sicians examined  as  to  their  conclusions 
from  the  facts  stated  bv  him.  .\labama  G. 
S.  R.  Co.  v.  Hill,  00  Ala".  71.  8  So.  90.  9:  442 

31.  'Ri''fusing  an  order  for  a  private  exami- 
nation, by  defendant's  experts,  of  plaintiff 
in  an  action  for  physical  injuries,  is  not  er- 
ror when  application  is  not  made  until  after 
Ihe  close  of  his  evidence,  and  no  reason  is 
"shown  for  the  delay. — especially  where 
plaintiff  offers  to  submit  to  examination  be- 


fore the  jury  or  in  the  presence  of  his  own 
experts.  Hess  v.  Lowrey.  122  Ind.  225,  2$ 
N.  E.   156,  7:  90 

Penalty  for  disobeying  order  for. 

32.  A  physical  examination  of  a  plaintifT 
in  a  civil  action  for  personal  injuries  may 
be  ordered  by  the  court  in  a  proper  case, 
upon  proper  safeguards  to  protect  the  rights 
of  both  parties,  under  a  penalty  of  the  dis- 
missal of  the  action  for  plaintiff's  refusal 
to  submit.  Wanek  v.  Winona,  78  Minn.  98, 
80  N.  W.  851,  46:  448^ 

33.  An  action  by  a  father  for  the  loss  of 
the  services  of  his  minor  daughter,  occa- 
sioned by  personal  injuries,  should  not  be 
dismissed  because  she,  after  reaching  her 
majority,  refused  to  obey  an  order  of  the 
court  in  which  the  action  was  pending,  re- 
quiring her  to  submit  to  a  physical  examina- 
tion of  her  person  by  a  physician.  Bagwell 
V.  Atlanta  Consol.  Street  R.  Co.  109  Ga.  611, 
34  S.  !•:.  1018,  47:  486 


III.  Submitting  Person  to  X-Rays. 

34.  A  party  ought  not  to  be  required  to 
submit  his  person  to  the  X-rays  until  it 
is  so  well  established  as  a  fact  in  science 
that  the  process  is  harmless  that  the  courts 
will  take  judicial  notice  of  it.  Wittenberg 
V.  Onsgard,  78  Minn.  342.  81  N.  W.  14. 

47:  141 

35.  An  application  to  require  a  plaintiff" 
to  submit  his  neck  to  be  photographed  by 
the  use  of  the  Roentgen  or  X-i'ay,  in  order 
to  ascertain  the  nature  of  his  injuries  for 
which  he  sues,  is  properly  refused  if  the 
apj)lication  is  not  seasonably  made,  and  if 
it  does  not  sufficiently  appear  that  the  per- 
son by  whom  it  is  proposed  that  the  photo- 
graph be  taken  has  the  requisite  skill  and 
experience  properly  to  ap])ly  the  rays.      Id. 


r\".  Editorial  Xotes. 

As  affected  by  constitutional  provision 
against  self-crimination. 
29:  811. 

Essentials   to    bill    for.      2:  223.* 

P.y  physical  examination  of  plaintiff.  14: 
466. 

Physical  examination  to  prove  personal  in- 
juries.    3:  808.* 

Order  to  enter  premises  for  examination. 
31:  109. 

Rii^lit  to  discovery  by  bill  where  the  stat- 
iites  provide  for  the  exam- 
ination of  the  party  be- 
fore trial.  24:  183. 
Practice  in  the  United  States  .Supreme 
Court,  and  the  circuit 
courts.  24:  189. 
Under  the  English  practice.     24:  191. 

Injunction  on  bill  of.  to  aid  defense.  32: 
325. 


DISCREDITING. 

Of  Witness,  see  Witnesses.  HI. 


DISCRETION— DISMISSAL  OR  DISCONTINUANCE. 


1083 


DISCRETION. 

Review  of.  on  Appeal,  see  Appeal  and  Er- 
ror, VII.,  i. 

In  Adniittins:  to  Bail,  see  Bail  and  Recogni- 
zance, 2,  3. 

As  to  Granting  of  Liquor  License,  see  In- 
toxicating Liquors,  II.   b. 


DISCRIMINATION. 


By  Carrier,   see  Carriers,  II.   a,   10,  d;    III. 

b,  c;  Indictment,  etc.,  48,  119-126. 
Against   Colored   Persons,  see  Civil  Rights. 
Unconstitutionality   of,    see    Constitutional 

Law,  II.  a. 
Between  Nominees  of  Different  Parties,  see 

Elections,  171. 
By  Board  of  Trade,  see  Exchanges,  3-5. 
By  Gas  Company,  see  Gas,  11,  15-18. 
In  License  Tax,  see  License,  II.  d. 
In  Taxes  Generally,  see  Taxes,  I.  c. 
In  Succession  Tax,  see  Taxes,  V.  )). 
Between  Newspapers,  see  Newspapers,  4,  5. 
In  Rates    Charged    by  Telegraph   Company, 

see  Telegraphs,  12-14. 
By  Telephone  Company,  see  Telephones,  6, 

8,  0,  17,  18. 
By  Water  Company,  see  Waters.  536. 
Between     Vessels    in    Use     of   Wharf,     see 

Wharves,  5. 


DISEASE. 

As  Excuse  for  Breach  of  Promise,  see  Breach 
of  Promise,  8-1 1. 

Ejection  of  Diseased  Passenger,  see  Carriers, 
357-360. 

As  Affecting  Damages,  see  Damages,  311- 
317. 

As  Affecting  Question  of  Cause  of  Death, 
see  Death,  49. 

Judicial  Notice  as  to,  see  Evidence,  112. 

Opinion  Evidence  as  to  Effect  of,  see  Evi- 
dence,  1303,   1304. 

Protection   against,  see  Health. 

Death  of  Insured  from,  see  Insurance,  IV.  b, 
2,  3. 

What  is,  sec  Insurance,  548-552. 

Municipal  Liability  for  Causing,  see  Munici- 
pal Corporations,  522,  523. 

See  also  Contagious  Diseases. 

Editorial  Notes. 

Distinguished  from  accident.  30:  209. 

Liability  for  communicating.  19:  725. 

Effect  of  previous  disease  of  person  injured 
on  liability  for  causing  in- 
juries. 16:  268. 

Of  animals;    statutes  as  to.  26:  638. 


DISFIGUREMENT. 


,  DISFRANCHISEMENT. 

failure  to  Assess  as  Part  of  Punishment, 
Right  to  Complain  of,  see  Appeal  and 
Error,  477. 

As  Bill  of  Attainder,  see  Attainder,  2. 

As  Ex  Post  Facto  Law,  see  Constitutional 
Taw,  113. 

For  JJribery,  see  Elections,  274. 


DISGRACE. 

As  Ground  for  Breach  of  Contract,  see  Con- 
tracts, 659. 


DISHONOR. 


Of  Checiv  oy  Bank,  see  Banks,  118-128. 
Damages  for  Dishonor  of  Check,  see   Dam- 
ages, III.  a,  6. 


DISINFECTION. 


Health  Regulations  as  to,  see  Health,  15-18. 
Negligence   in  Dipping  Sheep   for,  see  Offi- 
cers,  200. 


DISINHERITANCE. 


As  Element  of  Damages,  see  Damages,  357, 
3G5. 


Of  Cliildren  or  Heirs,  see  Wills,  III.  c. 
Editorial  Notes. 

Disinheriting  heir;     heirs   favored   at    law. 
2:848;*    11:767.» 


DISINTERMENT. 
Of  Corpse,  see  Corpse,  2-5. 


DISMISSAL  OR  DISCONTINUANCE. 

Of  Appeal,  see  Appeal  and  Error,  \T.;  Jus- 
tice of  the  Peace,  28,  29. 
Of    Subsequent    Suit    in    Other    Court,    see 

Courts,  394. 
Of  Criminal  Proceeding,  see  Criminal  Law, 

84,  85. 
Of    Indictment,    Motion    for.    see    Criminal 

Law,  136,  137. 
Of  Injunction  Suit,  see  Injunction,  493,  494. 
Of  Pleading,  see  Pleading,  I.  t. 
Of   Cause   Removed   to    Federal    Court,    see 

Removal  of  Causes,  43-47. 
Of  School  Teacher,  see  Schools,  II.  c. 
Effect  of,  on  Abatement  of  Subsequent  Suit, 

see  Abatement  and  Revival.  40.  41. 
From  Law  School,  see  Colleges,  7. 
Coats  on,  see  Costs  and  Fees,  5,  6. 
Effect  of  Opinion  on  Order  of,  see  Judginent, 

95,  96. 


1034 


DISMISSAL  OH  DISCONTINUANCE 


Ooncliisiveness  of  Judgment  of,  see  Judg- 
ment, 105-109. 

As  Extending  Time  for  Bringing  Action,  see 
Limitation  of  Actions,  245-247. 

Effect  on  Plea  of  Abatement,  see  Pleading, 
n60. 

After  Final  Decree  in  Will  Contest,  see 
Wills,  134. 

1.  A  libel  for  divorce  which  has  been  dis- 
missed from  the  docket  after  a  decree  nisi 
is  a  pending  action  within  the  meaning  of  a 
statute  which  exempts  pending  actions  from 
its  provisions.  Darrow  v.  Darrow,  159  Mass. 
262,  34  N.   E.   270,  21:100 

la.  Discontinuance  and  dismissal  are  syn- 
onymous terms.  English  v.  Dickey,  128 
Ind.  174,  27  N.  E.  495,  13:40 

Voluntary. 

Of  Parties,  see  infra,  12-14. 
Of  Suit  to  Enforce  Stockholders'  Liability, 

see  Corporations,  637. 
Of  Injunction  Suit,  Estoppel  by,  see  Estop- 
pel, 155. 
Presumption  of  Malice  from,  see  Evidence, 
357. 

2.  The  filing  of  a  paper  stating  that  an 
action  is  dismissed  does  not  take  away  ju- 
risdiction of  the  court  until  entry  of  a 
judgment  of  dismissal.  Barnes  v.  Barnes,  95 
Cai   171,  30  Pac.  298,  16:  660 

3.  One  who  brings  an  action  on  behalf  of 
himself  and  others  similarly  situated  who 
may  come  in  and  share  in  the  expenses  has 
the  right  to  control  the  action,  and  may  con- 
tinue, compromise,  abandon,  or  discontinue 
it  at  pleasure,  until  a  creditor  similarly 
situated  has  procured  an  order  to  be  made 
a  party  to  the  action,  or  has  served  a  no- 
tice of  a  motion  to  be  brought  in,  or  until 
interlocutory  judgment  is  entered.  Hirsh- 
feld  V.  Fitzgerald,  157  N.  Y.  166,  51  N.  E. 
997,  ^  46:  839 

4.  The  original  plaintiff  has  no  authority 
to  continue  the  action  after  he  has  assigned 
his  ri^ht  and  the  assignee  has  settled  or 
demands  a  discontinuance,  under  N.  Y.  Code 
Civ.  Proc.  j?  756,  providing  for  such  con- 
tinuance after  transfer  of  plaintiff's  inter- 
est. Id. 

.5.  After  a  valid  plea  of  set-off  has  been 
filed,  the  plaintiff'  is  not  entitled  to  dismiss 
his  action,  so  as  to  interfere  with  the  rights 
of  the  defendant,  except  upon  sufficient 
tanse  shown.  Wilson  v.  Exchange  Bank. 
122  Ca.  495,  50  S.  E.  357,  69:  97 

6.  A  statute  giving  attorneys  a  lien  on  the 
cause  of  action  for  their  fees  in  suits 
instituted  by  them  does  not  deprive  the 
plaintiff  of  the  right  to  dismiss  the  suit 
against  their  will,  or  entitle  them  to  be 
made  parties,  with  a  right  to  prosecute  the 
action  to  protect  their  own  interests. 
Tompkins  v.'  Nashville.  C.  &  St.  L.  R.  110 
Tenn.  157,  72  S.  W.  116,  61:  340 

Involuntary. 

For  Injured  Daughter's  Refusal  to   Submit 
to  Phj'sical  Examination,  see  Discovery 
.nnrl  Inspection.  33. 
Of   Suit   by   Lunatic,  see  Incompetent  Per- 
sons, 40. 
Of  Libel  Suit,  see  Libel  and  Slander,  177. 


Of  Mandamus  Proceedings,  see  Mandamus, 

219. 
Of  Cross  Bill,  see  Pleading,  548.     • 
See  also  Pleading,  455. 

7.  An  action  commenced  by  collusion, 
without  any  real  controversy,  will  be  dis- 
missed. Haley  v.  Eureka  County  Bank,  21 
Nev.  127,  26  Pac.  64,  12:  815 

8.  In  case  actions  between  the  same  par- 
ties and  involving  the  same  subject-matter 
are  brought  in  courts  of  co-ordinate  juris- 
diction, and  one  of  the  courts  secures  by 
proper  process  the  custody  or  dominion 
which  it  is  one  of  the  objects  of  the  suit 
in  the  other  court  to  subject  to  its  judg- 
ment, the  latter  action  should  not  be  dis- 
missed but  should  be  stayed  until  the  pro- 
ceedings in  the  court  that  first  obtained 
jurisdiction  of  the  property  are  concluded 
or  ample  time  for  their  termination  has 
elapsed.  Re  Barber  Asphalt  Pav.  Co.  132 
Fed.  945,  67:  761 
■  9.  A  suit  instituted  by  the  next  friend 
of  one  alleged  to  be  of  unsound  mind  need 
not  be  dismissed  in  case  such  person  ap- 
pears by  attorney,  protests  that  he  is  of 
sound  mind,  and  moves  to  dismiss  the  bill; 
but  the  court  may  determine  whether  or 
not  it  should  retain  jurisdiction  by  investi- 
gating complainant's  mental  condition.  Isle 
V.  Cranby,  199  111.  39,  64  N.  E.  1065,  64:  513 

10.  A  motion  to  dismiss  cannot  be  sus- 
tained because  the  suit  was  begun  by  an  ar- 
rest of  the  defendant  in  breach  of  his  privi- 
lege, where  he  is  entitled  only  to  his  dis- 
charge from  arrest,  but  not  to  a  dismissal 
of  the  suit.  Ellis  v.  De  Garmo,  17  R.  I. 
715,  24  Atl.  579,  19:  560 

11.  A  judgment  by  default  and  the  as- 
signment thereof  will  not  prevent  dismissal 
of  the  suit  as  collusive.  Haley  v.  Eureka 
County  Bank,  21  N6v.  127,  26  Pac.  64, 

12:815 
Of  party. 

Abatement  as  to  One  Defendant,  see  Abate- 
ment and  Revival,  28. 

As  to  Defaulting  Defendants,  see  Judgment, 
3. 

Removal  of  Cause  after,  see  Removal  of 
Causes,  56. 

12.  There  is  no  error  in  dismissing  a  bill 
as  to  a  defaulting  party,  if  the  defense  of 
the  party  who  appeared  went  to  tho  founda- 
tion of  the  right  to  recover  upon  the  case 
stated.  Harrison  v.  Tumbull,  95  Va.  721, 
30  S.  E.  372,  41 :  703 

13.  The  dismissal  of  a  bill  to  set  aside  a 
will  is  proper  as  to  a  defendant  named  in 
the  will  as  executor  and  also  appointed 
thereby  as  trustee,  with  legal  title  to  cer- 
tain lands,  where  he  refuses  to  act  either  as 
executor  or  trustee,  and  files  a  disclaimer 
of  any  interest  in  the  estate.  Campbell  v. 
Campbell,  130  111.  466,  22  N.  E.  620,  6:  167 

14.  A  wife  may  be  given  judgment  on 
striking  out  the  name  of  her  husband  as 
coplaintiff  in  an  action  by  them  jointly  to 
recover  the  proceeds  of  her  individual  prop- 
erty. Donahue  v.  Hubbard,  154  Mass.  537, 
28  X.  E.  909,  14:  123 


DISOBEDIENCE ;    DISORDERLY  HOUSES. 


1035 


Reinstatement. 

3Iandamu3  to  Compel,  see  Mandamus,  27, 
•28. 
15.  All  action  cannot  be  recommenced  in 
a  state  court  after  the  dismissal  of  a  prior 
action  for  the  same  cause  of  action  by  a 
Federal  court  to  which  it  had  been  removed 
from  the  state  court,  as  the  exclusive  ju- 
risdiction obtained  by  the  Federal  court  on 
removal  includes  a  reinstatement  of  the  ac- 
tion or  the  commencement  of  a  new  one 
for  the  same  cause  of  action.  Baltimore  & 
O.  R.  Co.  V.  Fulton,  59  Ohio  St.  575,  53  N. 
E.   265,  44:  520 

Editorial  Notes. 

Of  proceeding;  power  of  officer.    2:  644.* 
Power  of  public  prosecutor  to  dismiss  prose- 
cution.    35:  701. 


DISOBEDIENCE. 
As  a  Contempt,  see  Contempt,  I.  c. 


DISORDERLY  HOUSES. 

Liability  for  Injuring  Name  of  House,  see 
Cas'e,  20. 

Delegation  of  Power  to  Suppress,  see  Con- 
stitutional Law,  203. 

Changing  Limits  of,  see  Constitutional  Law, 
647. 

Sale  of  Goods  for  Use  in,  see  Contracts,  640. 

Violation  of  Both  State  and  Municipal  Reg- 
ulations as  to,  see  Criminal  Law,  183. 

Use  of  Premises  for,  as  Affecting  Damages 
in  Condemnation,  see  Damages,  514. 

Evidence  as  to,  see  Evidence,  1754,  1755. 

Right  to  Jury  on  Prosecution  for  Keeping, 
see  Jury,  34^  36,  58. 

Libelous  Charge  of  Keeping,  see  Libel  and 
Slander,  26,  39-41. 

As  Nuisance,  see  Nuisances,  50-53,  73,  84, 
112. 

Removal  of  Officer  for  Resorting  to,  see 
Officers,   131. 

•Compulsory  Telephone  Service  to,  see  Tele- 
phones, 15. 

Impeaching  Witness  by  Showing  Arrest  in, 
see  Witnesses,  156. 

As  to  Disorderly  Persons  Generally,  see  Dis- 
orderly Persons. 

1.  The  provision  in  the  charter  of  Detroit, 
^liehigan,  that  the  common  council  may  by 
ordinance  prohibit  the  keeping  of  houses  of 
ill  fame  and  punish  such  keepers,  was  not 
impliedly  repealed  by  the  Michigan  act  of 
1887,  making  such  keeping  a  felony,  and  so 
amending  the  pre-existing  statute  which 
punished  it  onlv  as  a  misdemeanor.  People 
^.  Hanrahan,  75  Mich.  611,  42  N.  W.  1124, 

4:  751 

2.  The  power  to  assign  limits  by  ordi- 
nance, outside  of  which  houses  of  prosti- 
-tution  are  prohibited,  is  not  exhausted  by 
Tits   first   exercise,   but   the    limits    may    be 


changed  by  a  subsequent  ordinance.    L'Hote 
V.  New  Orleans,  51  La.  Ann.  93,  24  So.  608, 

44:  90 
What  are. 

3.  A  covered  wagon  traveling  from  place 
to  place,  in  which  prostitution  is  carried 
on,  may  constitute  a  house  of  ill  fame  with- 
in the  meaning  of  a  statute  prohibiting  the 
keeping  of  such  houses.  State  v.  Chauvet, 
111  Iowa,  687,  83  N.  W.  717,  51:  630 

4.  The  habitual  assembling  of  lewd  men 
and  w^omen  in  a  house  to  drink  and  dance 
together  constitutes  a  disorderly  hcu.se;  and 
it  is  not  necessary  that  there  be  acts  vio- 
lative of  the  peace  of  tlie  neighborhood,  or 
boisterous  disturbance  and  open  acts  of 
l£wdness.  Beard  v.  State,  71  Md.  275,  17 
Atl.  1044,  4:  675 
Validity  of  ordinances  regulating. 

See  also  supra,  1,  2. 

5.  Charter  power  to  suppress  and  restrain 
disorderly  houses  authorizes  an  ordinance 
fixing  a  penalty  for  keeping  such  a  house. 
Ogden  V.  Madison,  111  Wis.  413,  87  N.  W. 
568,  55:  506 

6.  An  ordinance  confining  houses  of  pros- 
titution within  certain  limits  is  not  uncon- 
stitutional on  the  ground  that  it  sanctions 
vice  or  undertakes  to  punish  vice.  L'Hote 
V.  New  Orleans,  51  La.  Ann.  93,  24  So.  608. 

44:  90 

7.  An  ordinance  permitting  a  fine  of  $1,- 
000  to  be  imposed  as  a  penalty  for  visiting 
a  disorderly  house  is  unreasonable,  especial- 
ly where  the  penalties  prescribed  by  the 
Penal  Code  of  the  state  for  similar  offenses 
are  much  less.  Re  Ah  You,  88  Cal.  99,  25 
Pac.  974,  11:408 

8.  An  ordinance  that  no  person  shall  "per- 
mit drunkards,  intoxicated  persons,  tipplers, 
gamblers,  persons  having  the  reputation  or 
name  of  being  prostitutes,  or  other  disorder- 
ly persons,  to  congregate,  assemble,  visit,  or 
remain"  in  "his  or  her  house,  tavern,  inn, 
saloon,  cellar,  shop,  office,  or  other  res- 
idence or  place  of  business,"  is  unreasonable 
and  beyond  the  power  of  the  council  to  en- 
act, because  it  is  not  limited  in  its  applica- 
tion to  places  of  business  which  require 
police  regulations,  or  to  assemblages  of  im- 
moral persons,  and  does  not  make  knowledge 
of  the  reputation  of  the  person  visiting  a 
house  or  place  of  business,  or  an  unlawful 
purpose  on  the  part  of  the  visitor,  an  in- 
gredient of  the  offense.  Grand  Rapids  v. 
Newton,  111  Mich.  48,  69  N.  W.  84,  35:  226 

9.  The  authority  given  by  the  Michigan 
Constitution  to  the  legislature,  to  delegate 
to  municipal  corporations  the  right  to  enact 
ordinances  for  the  prevention  of  vice  and 
immorality  and  the  enforcement  of  good  or- 
der, is  a  warrant  for  the  grant  of  power  in 
the  charter  of  the  city  of  Detroit  to  pass 
ordinances  prohibiting  the  keeping  of  houses 
of  ill  fame  and  to  punish  the  keepers  and 
owners  thereof;  and  such  an  ordinance  is 
not  to  be  defeated  by  the  fact  that  a  crim- 
inal law  is  thereby  made  local  and  that 
such  power  does  not  appertain  to  matters 
which  cities  have  always  been  used  to  reg- 
ulating,   or    by    the    fact    that    there    is    a 

'  state  statute  on  the  subject  which  provides 


1036     DISOHDERLY  PERSONS— DISTRICT  AND  PROSECUTING  ATTORNEYS. 


a  dilleient  punishment  for  the  same  of- 
fense. People  V.  Hanrahan,  75  Mich.  611, 
42    N.    W.    1124,  4:  751 

Editorial  Notes. 

What  are,   evidence;    punishment.     4:  675.* 
Suppression  of  houses  of  ill  fame.     4:  751.* 
^Municipal   regulation  of  nuisance  of  disor- 
derly  houses.     39:  521. 
Cruel  and  unusual  punishment  for  keeping. 

35:  571. 
Evidence  of  character  of  defendant  and  in- 
mates   in    prosecution    for 
keeping.    20:  610. 


DISORDERLY  PERSONS. 

Intoxicated   Person   as,    see   Breach   of   the 

Peace. 
Equal   Privileges  as  to,   see   Constitutional 

Law,   612. 
Ordinance  Forbidding  Association  With,  see 

Constitutional  Law,  933. 
Evidence  as  to,  see  Evidence,  2160. 
Authority   of   Municipality   to   Punish,    see 

^ilunicipal  Corporations,  110. 
For     Disorderly      Houses,      see     Disorderly 

Houses. 

1.  A  conviction  and  sentence  on  the  charge 
of  being  "a  suspicious  person"  under  the  act 
of  Congress  of  July  8,  1898,  applicable  to 
the  District  of  Columbia,  when  the  suspi- 
cion of  which  the  accused  is  the  object  is 
wholly  undefined  and  in  no  manner  con- 
nected with  any  criminal  act  or  conduct, 
either  past  or  that  might  occur  in  the  fu- 
ture, is  in  violation  of  U.  S.  Const.  Amends. 
4  and  8,  prohibiting  unreasonable  searches 
and  seizures  and  cruel  and  unusual  punish- 
ments. Stoutenburgh  v.  Frazier,  16  App.  D. 
C.  229,  48:  220 
Peeking  into  windows. 

2.  An  improper  or  unlawful  purpose  is 
not  necessary  to  constitute  the  offense  of 
indecent  or  insulting  conduct  in  violation  of 
an  ordinance,  by  peeking  into  the  windows 
of  an  occupied  lighted  dwelling  house  at 
niglit.  Grand  Rapids  v.  Williams,  112  Mich. 
247,  70  N.  W.  547,  36:  137 

3.  Peeking  into  the  windows  of  an  occu- 
pied lighted  residence  at  the  hours  of  night 
when  people  usually  retire,  by  one  who  has 
no  business  there,  constitutes  indecent  or 
insulting  conduct  or  behavior  within  the 
meaning  of  an  ordinance  relative  to  dis- 
orderly persons.  Id. 


DISPENSARY. 


Discrimination  in  Favor  of  Liquors  Bought 

from,  see  Commerce,  104. 
Power   of   State   as    to.    see   Constitutional 

Law,  9."i8,  959. 
Police    Power    as    to    Establishment    of.    by 

ATunicipality,    see    Constitutional    Law, 

1078. 


Loss  of  Jurisdiction  of  Suit  to  Enjoin 
Maintenance  of,  see  Courts,  2.54. 

Authorizing  Town  to  Establish,  see  Intox- 
icating Liquors,  5. 

Charter  Authority  of  City  to  Establish,  see 
Municipal    Corporations,    426. 


DISQUALIFICATION. 


Of  Members  of  Board,  see  Boards,  7-9. 

To   be   Witness   to   Chattel   Mortgage,   see 

Chattel  Mortgage,  2. 
Of  Judge,  see  Judges,  III. 


DISSEISIN. 

See  Adverse  Possession. 

' ♦-•-♦ 


DISSOLUTION. 

Of  Association,  see  Associations,  6-9. 

Of  Attachment,  see  Attachment,  III.  c. 

Of  Benevolent  Society,  see  Benevolent  Socie- 
ties, V. 

Of  Corporation,  see  Corporations.  VI. 

Of  Injunction,  see  Injunction,  472-477. 

Of  Insurance  Company,  see  Insurance,  I.  c. 

Of  Municipality,  see  Municipal  Corporations, 
I.  c. 

Of  Partnership,  see  Partnership,  VI. 


DISTANCES. 

Judicial  Notice  of,  see  Evidence,  48,  49. 
♦  »» 

DISTINGUISHING  MARKS. 
On  Ballot,  see  Elections,  II.  b,  3. 
♦-•-♦^ ■ 

DISTRESS. 

For  Rent,  see  Landlord  and  Tenant.  III.  d, 

3. 
For  Collection  of  Tax,  see  Taxes,  492,  504. 


DISTRIBUTION. 


Of  Decedent's  Estate,  see  Executors  and  Ad- 
ministrators,   IV.    c. 

Of  Insolvent  Estate,  see  Insolvency.  IV. 

Of  Assets  of  Insurance  Company,  see  In- 
surance, 73-85. 


DISTRICT  AND   PROSECUTING  ATTOR- 
NEYS. 

Necessity  of  Continuing  Objections  to  Im- 
proper Statements  of.  see  Appeal  and 
Error,  286. 


DISTRICT  (>F  COLU-MBIA— DISTURBING  WORSHIP. 


108'; 


Prejudicial  Erm)r  in  Argument  of,  see  Ap- 
peal and  Error,  1091a,  1092,  1104,  1106; 
and  also  infra,  Editorial  Notes. 

Claims  of,  see  Claims,  2. 

Delegation  to,  of  Power  to  Punish  for  Con- 
tempt,  see   Constitutional   Law,   231. 

•Giving  Interest  in  Penalty  to,  see  Constitu- 
tional Law,  t>26. 

Right  to  Enter  SoUe  I'losequi,  see  Criminal 
Law,  84. 

Contest  of  Election  to  Office  of,  see  Elec- 
tions, 341. 

Judicial  Notice  of  Appointment  of  Deputy, 
see  Evidence,  26. 

Sufficiency  of  Information  Filed  by,  see  In- 
dictment, etc.,  2.  n 

Necessity  of  Writing  Information,  see  In- 
dictment, etc.,  4. 

Signing  of  Information  by  Deputy,  see  In- 
dictment, etc.,  7,  8,  11,  17b. 

Eligibility  of  Women  to  Office  of,  see  Of- 
ficer, 16. 

Proceeding  by,  to  Determine  Title  to  Office, 
see  Officers,  165. 

EflFect  of  Refusal  to  Act  in  Quo  Warranto 
Proceedings,  see  Quo  Warranto,  22. 

■Criminal  Liability  for  Removing  Court  Rec- 
ords, see  Records,  9. 

Withdrawal  of  Stipulation  by,  see  Stipula- 
tions, 6. 

Application  for  Change  of  Venue  by,  see 
Venue,  26. 

As  Witness  for  Defendant,  see  Witnesses, 
4:  and  also  infra.  Editorial  Notes. 

1.  It  is  the  duty  of  the  prosecutor  in  a 
criminal  trial  to  see  that  the  accused  has 
a  fair  trial,  and  that  nothing  but  competent 
evidence  is  submitted  to  the  jury;  and  he 
should  specially  guard  against  anything 
that  would  prejudice  the  minds  of  the  ju- 
rors, and  tend  to  hinder  them  from  con- 
sidering only  the  evidence  introduced. 
State   v.   Irwin,   9  Idaho,  35,   71    Pac.    608, 

60:  716 

2.  The  state's  attorney  for  a  county  in 
Connecticut  has  the  right  to  bring  suits  to 
enforce  public  charitable  trusts.  Dailey  v. 
New  Haven,  60  Conn.  314,  22  Atl.  945, 

14:  69 
Private  counsel  assisting. 
Appearance   by   Private  Counsel  in  Habeas 

Corpus  Proceeding,  see  Habeas  Corpus, 

51,  52. 
Argument  by  Private  Counsel  Assisting,  see 

Trial,    38. 

3.  Counsel  employed  by  private  persons 
may  be  allowed  to  assist  the  prosecuting  at- 
torney at  his  request  on  the  trial  of  an  in- 
dict nient,  although  the  statute  prohibits 
the  latter  from  receiving  any  fee  or  reward 
from  individuals.  State  v.  Kent,  4  N.  D. 
577.  62  N.  W.  631,  27:  686 

4.  The  fact  that  an  attorney  is  a  non- 
resident of  the  state,  and  not  a  member  of 
the  bar  of  that  state,  does  not  make  it  im- 
proper to  permit  him  to  assist  a  prosecuting 
attorney  at  the  latter's  request.  Id. 


Compensation. 

5.  Under  .Mont.  Comp.  Stat.  p.  870,  §  847, 
providing  that  a  county  attorney  shall  re- 
ceive certain  fees  to  be  taxed  as  costs  for 
collections  made  for  the  county,  such  fees 
may  bo  taxed  in  a  proceeding  by  writ  of 
mandate  to  compel  the  payment  of  money 
into  ihe  treasury,  a.--  well  as  in  an  action 
brought  for  recovery  of  the  money.  Terri- 
tory ex  rel.  Ohoteau  County  v.  Cascade 
County,  8  Mont.  396,  20  Pac.  809,  7 :  105 

().  A  county  attorney  not  being  entitled, 
under  :Mont.  'Comp.  Stat.  p.  870,  §  847,  to 
more  than  $1,200  in  fees,  the  amounts  of 
fees  already  received  by  him  must  be  de- 
ducted from  $1,200  and  the  balance  only 
taxed  in  his  favor,  where  the  percentage  al- 
lowed would  make  the  total  more  than 
that  sum.  Id. 

Editorial   Notes. 

Power  to  dismiss  prosecution.     35:  701. 

Improper  influence  or  interference  with 
grand  jury  by.     28:  368. 

Reversal  of  conviction  because  of  unfair  or 
irrelevant  argument  or 
statements  of  facts  by 
prosecuting  attorney.  46: 
641. 

Competency  of  prosecutijig  attorney  as 
witness.    55:  231. 


DISTRICT  OF  COLUMBIA. 

Regulation   of  Inhabitant's   Right   to   \'ote 

on    Moving    into   Adjoining    State,    see 

Constitutional  Law,  332. 
Citizenship     in,     as    Attecting    Jurisdiction, 

see   Courts,   344b. 
Power  of  Courts  of,  to  Award  Alimony,  see 

Divorce  and  Separation,  58. 

The  power  of  Congress  to  enact  regula- 
tions affecting  the  public  peace,  morals,  safe- 
ty, health,  and  comfort  within  the  District 
of  Columbia  is  the  same  as  that  of  the  sev- 
eral state  legislatures  within  their  respec- 
tive territorial  limits.  Moses  v.  United 
States,  16  App.  D.  C.  428.  50:  532 

Editorial   Notes. 

Citizenship  in,  as  affecting  jurisdiction  of 
Federal  court  on  ground 
of  diverse  citizenship.  1 : 
108.* 


DISTRICTS. 


Of  Federal  Courts,   see  Courts,  III.  i. 
Judicial  Districts,  see  Venue,  17. 


DISTURBING  WORSHIP. 

Indictment  for,  see  Indictment,  etc.,  81. 
By  Water  Tank  and  Railway  Station,  see 
Nuisances,  39. 


1038 


DITCH— DIVORCE  AND  SEPARATION. 


DITCH. 

Vested  Right  in,  under  Oral  Agreement,  see 

Contracts,  249. 
Right  of  Prior  Appropriator  to  Repair,  see 

Easements,  66. 
Revocation  of  License  to  Maintain,  see  Li- 
cense,  11-16,  26. 
Injury  from  Caving  in  of,  see  Master  and 

Servant,  355. 
Right  of  Action  on  Covenant  to  Repair,  see 

Parties,  65. 
Complaint  in  Action  for  Constructing,  see 

Pleading,  413. 
Review  of  Decree  as  to  Carrying  Capacity 

of,  see  Review,  7. 
Enforcing  Contract   to   Make,   see-  Specific 

Performance,  53. 
Damage  to,  see  Trespass,  8,  II. 
Rights  in,  see  Waters,  II.  i. 
See  also  Drains  and  Sewers. 


DIVER. 

Opinion  Evidence  of,  see  Evidence,  1328. 


DIVERSE  CITIZENSHIP. 

As  Ground  for  Jurisdiction,  see  Courts,  III. 
d. 


DIVERSION. 


Of  Note,  see  Bills  and  Notes,  257. 

Of  Water  into  Canal,  see  Canals,  6. 

Of  Water  from  Canal  Feeder,  see  Canals,  7, 
8. 

Of  Surplus  Waters  Created  by  Dam,  see 
Dams,  9. 

Of  Land  Dedicated  for  Specific  Purpose,  see 
Dedication,   15,  16. 

Of  Income  of  Mortgaged  Railway,  see  Mort- 
gage, 62. 

Of  Water,  see  Waters,  II. 

Of  Water,  Tniunction  against,  see  Injunc- 
tion, 214-222. 

Of  Surface  Water,  Municipal  Liability  for, 
see  Municipal  Corporations,  .529-538. 

Of  Public  Funds,  see  Public  Moneys,  II.  c 


DIVIDED  COURT. 


Motion  to  Affirm  Judgment  on  Appeal  on 
Ground  of,  see  Appeal  and  Error,  361. 

Ordering  Reargument  because  of,  see  Ap- 
peal and  Error,  1250. 


DIVIDEND. 


To  Creditors.  Clianging  Order  for  Payment 
of,  on  Rehearing,  see  Appeal  and  Er- 
ror. 1252. 


From  Insolvent  Bank,  Eflfect  of  Taking,  see 
Banks,  318,  334. 

Against  Insolvent  Bank,  Interest  on.  see  In- 
terest, 55-58. 

From  Assets  of  Insolvent  Corporation,  see 
Corporations,  778,  803. 

From  Insolvent  Estate,  see  Insolvency,  16- 
22,  27,  29. 

In  Insolvency,  Estoppel  by  Accepting,  see 
Estoppel,  30. 

To  Surety,  see  Principal  and  Surety,  60. 

On  Corporate  Stock,  see  Corporations,  V.  e, 
4. 

Guaranty  of,  see  Guaranty,  3,  6,  20. 

Relative  Rights  of  Life  Tenants  and  Re- 
mainder-men as  to,  see  Life  Tenants,  IL 
b. 

Editorial  Notes. 

Right  of  creditors  to  dividends  in  insolvency. 
11:  327.* 

Guaranty  of  dividends  on  corporate  stock. 
2:  183.* 

Pledgee's  right  to  dividends  of  corporate 
stock.     12:  783.* 

Right  to  increased  stock  and  stock  dividends 
between  owner  of  capital 
and  income.     16:  461. 

Right  to  dividends  on  transfer  of  stock. 
45:  392. 

Taxation  of,  as  part  of  capital  stock  of  cor- 
poration.    58:  572,  586. 


DIVINE  HEALER. 


Proof  as  to  Belief  of,  see  Evidence,  2342. 


DIVISION  FENCES. 
See  Fences,  IL 


DIVORCE  AND  SEPARATION. 

I.  In  General. 
II.  The  Suit  and  Jurisdiction  Thereof. 

III.  Grounds. 

a.  Cruelty;   111  Treatment. 

b.  Desertion. 

c.  Drunkenness;  Use  of  Morphine. 

d.  Imprisonment. 

IV.  Defenses;  Connivance;  Recrin^ination. 
V.  Alimony. 

a.  In  General. 

b.  Temporary  Alimony ;  Suit  Money. 

c.  Permanent  Allowance. 

d.  Subsequent  Change. 
VI.  Other  Property  Rights. 

VII.  Custody  and  Support  of  Children. 
VIII.  Agreements  for  Support  and  Mainte- 
nance. 

a.  In  General. 

b.  Validity  of. 
IX.  Editorial  Notes. 

Effect  of.  on  Prosecution  for  Adultery,  see 

Adultery. 


DIVORCE  AND  SEPARATION,  I.,  II. 


1089- 


Effect  of,  on  Right  of  Action  for  Seduction 

by  Husband  Before  Marriage,  see  Seduc- 
tion, 7,  8. 
Effect  of,  on  Legacy  to  "Wife,"  see  Wills, 

439,  456. 
Effect  on  Competency  as  Witness,  see  Wit- 
nesses, 31. 
Concealment   of,   as  Excuse   for  Breach   of 

Promise,  see  Breach  of  Promise. 
Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 

I,  c. 
Equal   Privileges   as   to,   see   Constitutional 

Law,  343. 
Agreement  not  to  Sue  for,  as  Consideration, 

see  Contracts,  77,  78,  90. 
Validity  of  Contract  for,  see  Contracts,  423, 

424.  * 

When  Court  will  Inquire  into  Validity  of, 

see  Courts,  17,  18. 
Personal  Examination  of  Parties  in  Action 

for,  see  Discovery  and  Inspection,  27. 
Parol  Evidence  of  Agreement  to  Obtain,  see 

Evidence,  1186. 
Injunction  against  Husband  Entering  Wife's 

House  Pending,  see  Injunction,  69. 
Marriage  of  Divorced  Person,  see  Marriage, 

34-38,  41-44,  74-76. 
Conflict  of  Laws  as  to  Validity  of  Marriage 

of  Divorced  Person,  see  Conflict  of  Laws, 

132-139. 
Parties  to  Action  to  Contest  Validity  of,  see 

Parties,  148. 
Specific    Enforcement   of   Contract   Not    to 

Bring    Suit,    see    Specific    Performance, 

14. 
Enforcement    of    Contract    for    Attorney's 

Services  in   Suit,  see  Specific  Perform- 
ance, 56. 
Condition  in  Will  for  Procuring,  see  Wills, 

309,  310. 

I.  In  General. 

1.  A  cause  of  action  for  divorce  is  not 
taken  away  by  the  repeal  of  the  statute  un- 
der which  it  arose,  without  any  saving 
clause,  where  this  is  accompanied  by  a  new 
statute  prescribing  the  same  grounds  for  di- 
vorce although  making  the  requirements 
less.  Tufts  v.  Tufts,  8  Utah,  142,  30  Pac. 
309,  16:  482 

2.  Courts  will  use  their  discretion  to  de- 
feat any  and  all  attempts  to  use  tJhe  forms 
of  the  law  of  divorce  to  minister  to  the  ca- 
prices of  the  fickle-minded,  or  to  the  reveng- 
es of  the  disappointed  or  vindictive,  or  to 
the  passions  of  the  incontinent.  Dennis  v. 
Dennis.  68  Conn.  186,  36  Atl.  37,  34:  449 
By  act  of  legislature. 

For  Editorial  Notes,  see  infra,  IX.  §  1. 

3.  The  legislature  cannot  grant  a  divorce 
at  the  instance  of  a  party  at  fault,  without 
the  consent  of  the  partv  not  at  fault.  Re 
Christensen's  Estate,  17*  Utah.  412.  53  Pac. 
1003,  41 :  504 

4.  A  special  act  of  the  legislature  granting 
a  divorce  is  in  violation  of  Ala.  Const,  art. 
4.  §  23.  which  prohibits  the  suspension  of 
any  general  law  for  the  benefit  of  any  in- 
dividual, since  the  subject  of  divorce  is  cov- 
ered hv  general  laws.  Jones  v.  .Tones,  95 
Ala.    443.    n    So.    11,  'l8:  95 


I      II.  The  Suit  and  Jurisdiction  Thereof. 

Independent  Suit  for  Alimony,  see  infra,  55, 

59-62. 
Power  of  Court  Over  Costs  Terminated  by 

Abatement   of   Proceeding,   see  Appeal 

and  Error,  1227. 
Appealability    of   Juugment    in,    to    United 

States  Supreme  Court,  see  Appeal  and 

Error,  II.  a. 
Review  of  Finding  in  Action  for,  see  Appeal 

and  Error,  782,  783. 
Writ  of  Error  by  Insane  Defendant  in  Case 

of,  see  Appeal  and  Error,  9. 
Authority  of  Attorney,  see  Attorneys,  48. 
Validity    of   Agreement    to    Abandon    Real 

Ground  for  Divorce,  see  Contracts,  425. 
Withdrawal  of  Action  as  Consideration  for 

Promise,  see  Contracts,  79. 
As   Pending  Action   After  Dismissal   from 

Docket,    see    Dismissal   or   Discontinu- 
ance, I. 
Presumption   as  to  Validity   of  Judgment^ 

see  Evidence.  623. 
Admissibility  of  Decree,  see  Evidence,  872. 
Admissibility  of  Judgment  Dismissing  Suit,. 

see  Evidence.  869. 
Effect  of  Divorce  Nisi,  see  Evidence,  1235. 
.Jurisdiction  of  Suit  to  Enjoin  Prosecution- 

of,  see  Courts,  412. 
Injunction  against  Maintenance  of  Suit,  see 

Injunction,  486. 
Jurisdiction  to  Render  Judgment,  see  Judg- 
ment,  I.   Oj   2. 
Entry  of  Judgment  after  Plaintiff's  Death, 

see  Judgment,  73. 
Collateral  Attack  on  Decree,  see  Judgment, 

L  c,  2,  d. 
Conclusiveness  of  Judgment,  see  Judgment, 

n.  d,  3. 
Decree  Rendered  in  Other  State,  see  Judg- 
ment, IV.  b,  2. 
Decree   Rendered    in   Foreign   Country,    see- 

Judjrment.  336,  337. 
Effect   of   Suit   on  Lien  of  Judgment,    see 

Judgment,  317. 
Action  to  Set  Aside  Decree,  see  Judgment, 

409,  410. 
Ground    for    Setting    aside    Judgment,    see 

Judgment,  423,  426. 
Estoppel  to  Object  to  Opening  of  Judgment 

to  Allow  Alimony,  see  Estoppel,  153. 
[.imitation  of  Action  for,  see  Limitation  of 

Actions,  215. 
Effect    of    Divorce    Suit    as    Lis    Pendens, 

See  Lis  Pendens,  15-17. 
-Mlegations  Showing  Jurisdiction,  see  Plead- 
ing, 197. 
Striking    out    Answer,    see    Contempt,    92; 

Pleading,  167. 
Setting  up  Additional  Grounds  by  Supple- 
mental Bill,  see  Pleading.  158. 
Surplusage  in  Pleading,  see  Pleading,  164. 
Service  on  Nonresident  Defendant,  see  Writ 

and  Process,  15. 
For  Editorial  Notes,  see  infra,  IX.  §§  2-6. 

12-14%. 

5.  It  is  the  duty  of  the  applicant  in  an- 
ex  parte  proceeding  for  divorce,  upon  paii> 
of  otaining  an  invalid  decree,  to  avoid  prac- 
tising any   deception    on   the  court    in   any 


1040 


DIVORCE  AND  SEPARATION,  III.  a. 


matter  affecting  its  jurisdiction,  or  its  dis- 
cretion to  proceed  or  not  to  the  final  deter- 
mination of  tiie  cause.  Dunham  v.  Dunham, 
162  111.  589.  44  N.  E.  841,  35:  70 

6.  Jurisdiction  of  a  divorce  suit  cannot 
be  obtained  on  a  complaint  by  tlhe  guardian 
of  an  insane  man,  although  th«  wife  is  prop- 
erly served  and  appears  to  contest  the  ju- 
risdiction. Mohler  v.  Shank,  93  Iowa,  273, 
61  X.  W.  981,  34:  161 
Residence  of  plaintifi  for  jurisdictional  pur- 
poses. 

Collateral   Attack   on   Plaintiff's   Residence, 

see  Judgment,  152. 
Conclusiveness  of  Decree  in  Other  State,  see 

Judgment,  374. 
For  Editorial  Notes,  see  infra,  IX.  §  5. 

7.  Courts  of  a  state  in  which  a  husband 
acquires  a  new  domicil  have  jurisdiction  of 
a  suit  brought  by  him  for  a  divorce. 
Thompson  v.  Thompson,  91  Ala.  591,  8  So. 
419,  11:443 

8.  The  requirement  of  two  years'  resi- 
dence, under  the  Florida  statutes,  in  order 
to  give  jurisdiction  of  a  suit  for  divorce, 
does  not  apply  to  a  suit  for  alimony,  under 
Fla.  Rev.  Stat.  §  1486,  but  this  may  be 
brought  if  the  wife  is  a  bona  fide  citizen  of 
the  state.  Miller  v.  Miller,  33  Fla.  453,  15 
So.  222,  24:  137 

9.  The  authorities  of  a  country  have  no 
power  to  dissolve  a  marriage  between  two  of 
its  citizens,  long  after  they  have  abandoned 
it  and  taken  up  their  residence  in  another 
country,  upon  the  petition  of  one  who  tem- 
porarily returns  there,  but  who,  before  the 
dissolution  is  granted,  rejoins  her  husband 
in  the  country  of  his  adoption,  and  resumes 
her  marital  relationship  with  him  there. 
St.  Sure  V.  Lindsfelt.  82  Wis.  346,  52  ^n.  W. 
308,  19:  515 

10.  An  amendment  to  a  bill  for  divorce, 
setting  up  an  entirely  new  and  distinct 
cause,  to  whieh  answer  is  made,  is  the  be- 
ginning of  a  new  suit  for  the  purpose  of  de- 
termining the  sufficiencj'  of  the  residence  of 
the  plaintiff  in  the  state  to  give  jurisdiction. 
Wood  v.  Wood,  59  Ark.  441.  27  S.  W.  641, 

28:  157 
Residence  of  defendant  for  purpose  of  juris- 
diction. 
For  Editorial  Notes,  see  infra,  IX.  §§  4,  5. 

11.  The  marriage  relation  is  not  a  res 
within  a  state  in  which  only  one  of  the  par- 
ties resides,  so  as  to  give  a  court  of  that 
state  jurisdiction  to  dissolve  the  marriage 
and  bind  the  absent  party  who  is  a  citizen 
of  another  jurisdiction,  by  substituted  or 
actual  notice  of  the  proceedings,  given  with- 
out the  jurisdiction  of  the  court  where  the 
procepdinu  is  jiending.  McCreerv  v.  Davis, 
44  S.  C.  19.1.  22  S.  E.  178,  '        28:6.55 

12.  "^^rho  matrimonial  domicil  of  a  wife 
who  is  justified  in  leaving  her  husband  for 
cruelty  may  be  changed  by  removal  to  an- 
other state,  so  as  tn  prevent  jurisdiction 
over  her  on  constructive  spi-\ice  in  a  divorce 
suit  in  tlio  state  w  lie  re  the  husband  resides. 
.\tliorton  V.  Athorton.  l.l.")  X.  Y.  129.  49  N. 
E.  9.3.3.  40:  291 

13.  Tl'o  legal  fiction  that  a  wife's  domicil 
follows  thnt  of  her  luisband  gives  jurisdic- 


tion of  a  suit  for  divorce  on  the  ground  of 
the  wife's  desertion,  to  a  court  of  a  state  to 
which  the  husband  has  removed  and  in  which 
he  has  resided  for  the  time  required  by  stat- 
ute, although  the  marriage  took  place  in  an- 
other state  in  whieh  the  wife  still  resides, 
and  in  which  her  desertion  began,  and  in 
which  service  is  made  upon  her.  Loker  v. 
Gerald,  157  Mass.  42,  31  N.  E.  709,  16:  497 
On  cross-bill. 
Effect  of  Omitting  Noncollusion  Clause,  see 

Appeal  and  Error,  863. 
Presumption  as  to  Service  of  Cross  Bill,  see 

Pleading,  438. 
14.  A  nonresident  defendant  in  a  divorce 
suit  brought  by  a  resident  of  the  state  may 
be  granted  a  divorce  on  a  cross  bill  although 
the  marriage  and  cause  of  divorce  took  place 
out  of  the  state  and  the  general  provisions 
in  How.  (Mich.)  Ann.  Stat.  §  6231,  say  that 
in  such  ease  a  divorce  shall  not  be  granted 
unless  the  party  exhibiting  the  petition  or 
bill  therefor  has  resided  in  the  state  one 
vear.  Clutton  v.  Clutton,  108  Mich.  267,  66 
N.  W.  52,  31:  160 


III.  Grounds. 

a.  Cruelty;  111  Treatment. 

Defenses  in  Action  for,  see  infra,  44,  48-50. 
Annulment    of    Marriage,    or    Divorce,    for 

Causes  Rendering  the  Marriage  Invalid, 

see  Marriage,  IV. 
Question  for  Jury  as  to,  see  Trial,  181. 
For  Editorial  Notes,  see  infra,  IX.  §  7. 

15.  The  final  test  of  the  sufficiency  of  ill- 
treatment  or  extreme  cruelty  as  a  cause  of 
divorce  is  its  actual  or  reasonably  appre- 
hended injurious  effect  upon  the  body  or 
health  of  the  complaining  party.  Waldron 
V.  Waldron,  85  Cal.  251,  24  Pac.  640,  858, 

9:  487 

16.  "Treatment,"  within  the  meaning  of  a 
statute  authorizing  a  divorce  for  treatment 
injuring  health  or  endangering  reason,  means 
any  behavior  of  one  party  which  affects  the 
other  physicallv  or  mentally.  Robinson  v. 
Robinson,  66  N.'H.  600,  23  Atl.  362,      15:  121 

17.  '"Cruel  treatment,"  within  the  mean- 
ing of  a  statute  providing  that  such  treat- 
ment shall  be  a  ground  for  divorce,  is  the 
wilful  infliction  of  pain,  bodily  or  mental, 
upon  the  complaining  party,  such  as  reason- 
ablj-  justifies  an  apprehension  of  danger  to 
life,  limb,  or  health.  Ring  v.  Ring,  118  Ga. 
183,  44  S.  E.  861,  62:  878 

18.  The  intention  to  wound  is  a  necessary 
element  of  the  cruel  treatment  for  which  a 
divorce  is  allowed.  Id. 

19.  Acts  causing  mental  suffering,  al- 
though not  atTecting  bodily  health,  may  con- 
stitute extreme  cruelty  under  Cal.  Civ.  Code, 
!?  94,  which  defines  it  as  the  "infliction  of 
grievous  bodily  injury  or  grievous  mental 
suflering."  Barnes  v.  Barnes.  95  Cal.  171, 
3(»  Pac.  298.  16:  660 
Overruling  Waldron  v.  Waldron.  85  Cal.  251, 
•it  Pac.  640,  858.  9:  487 

20.  A  divorce  will  not  be  granted  on  the 
ground  of  cruelty,  where  the  bill  relied  uptin 


DIVORCE  AND  SEPARATION,  III.  b. 


1041 


habitual  drunkenness,  but  charged  cruelty 
only  in  general  terms,  such  charge  being 
brought  forward  as  a  mere  afterthought  aft- 
er it  became  apparent  that  the  bill  could  not 
be  maintained  on  the  ground  of  drunken- 
ness. Youngs  V.  Youngs,  130  111.  230,  22  N. 
E.  806,  6:  548 

Communication  of  syphilis. 

21.  The  communication  of  syphilis  to  a 
wife  by  her  husband,  "who  has  the  disease  in 
the  tertiary  stage  and  is  probably  incurable, 
whereby  she  is  kept  in  a  constant  state  of 
suffering,  is  a  ground  for  a  divorce  under  1 
Pepper  &  L.  Dig.  p.  1638,  pi.  11,  allowing  a 
divorce  for  cruel  and  barbarous  treatment 
€ndangering  the  wife's  life  or  rendering  her 
condition  intolerable  and  life  burdensome. 
McMahen  v.  McMahen,  186  Pa.  485,  40  Atl. 
795,  41 :  802 
Bodily  acts  or  violence. 

See  also  infra,  25. 

22.  A  single  blow  given  in  anger  by  hus- 
band to  wife  is  not  necessarily  cruel  and 
barbarous  treatment  constituting  cause  for 
divorce.  Hardie  v.  Hardie,  162  Pa.  227,  29 
Atl.  886,  25:  697 

23.  One  act  of  force  and  violence  preceded 
by  deliberate  insult  and  abuse,  even  though 
committed  wantonly  and  without  provoca- 
tion, does  not  constitute  "extreme  and  re- 
peated cruelty"  which  will  justify  a  divorce 
under  the  Illinois  statute.  Fritts  v.  Fritts, 
138  111.  436,  28  N.  E.  1058,  14:  685 
Language  used. 

24.  That  a  husband  on  several  occasions, 
when  intoxicated,  called  his  wife  vile  names 
in  the  presence  of  others,  is  not  sufficient 
ground  for  granting  a  divorce  on  the  ground 
of  extreme  cruelty,  where  the  wife  was  not 
tmiformly  kind  to  the  husband  and  her 
health  was  not  injured  thereby.  Waldron  v. 
Waldron,  85  Cal.  251,  24  Pac.  640,  858, 

9:  487 

25.  A  wife  is  entitled  to  a  divorce  for  in- 
human treatment  where  the  husband,  be- 
sides frequently  abusing  her  and  her  chil- 
dren, habitually  addressing  her  in  profane 
and  obscene  language,  and  applying  to  her 
opprobrious  epithets,  has  on  several  occa- 
sions treated  her  with  physical  violence,  and 
once,  in  the  presence  of  her  children,  has  ac- 
cused her  of  improper  relations  with  another 
man,  while  he  has  been  indifferent  to  her  in 
sickness,  inviting  farm  hands  to  sit  in  the 
same  room  she  was  occupying,  with  aggra- 
vating language  and  irritating  manner,  al- 
though no  single  act  was  sufficient  to  en- 
danger her  life.  Doolittle  v.  Doolittle,  78 
Iowa,  691,  43  N.  W.  616,  6:  187 
Use  of  morphine. 

For  Editorial  Notes,  see  infra,  IX.  §  7. 

26.  The  habitual  and  intemperate  use  of 
morphine,  unaccompanied  by  any  conduct 
reasonably  justifying  an  apprehension  of 
danger  to  life,  limb,  or  health,  is  not  such 
cruel  treatment  as  the  law  recognizes  as  a 
ground  for  divorce.  Ring  v.  King,  118  Ga. 
183.  44  S.   E.  861,  62:  878 

27.  Violent  resistance  by  a  husband  of  at- 
tempts by  the  wife  to  take  morphine  from 
him  while  he  is  in  a  state  of  total  or  partial 
delirium  does  not  constitute  extreme  and  re- 

J>.R.A.  Dig.— 66. 


peated  cruelty,  within  the  meaning  of  IIL 
Rev.  Stat.  chap.  40,  §  1,  making  such  cruelty 
a  ground  of  divorce.  Youngs  v.  Youngs,  130 
III.  230,  22  N.  E.  806,  6:  548 

Practice  of  Christian  science. 

28.  The  practice  of  Christian  science  as  a 
doctor,  by  a  wife  who  believed  this  to  be  her 
duty,  may  give  her  husband  ground  for  a 
divorce  under  N.  H.  Gen.  Laws,  chap.  182, 
§  3  (N.  H.  Gen.  Stat.  chap.  163,  §  3),  au- 
thorizing a  divorce  for  treatment  seriously 
injuring  health  or  endangering  reason,  al- 
though such  injury  to  the  health  and  danger 
to  the  reason  of  the  husband  is  due  to  his 
abnormal  sensitiveness.  Robinson  v.  Robin- 
son, 66  N.  H.  600,  23  Atl.  362,  15:  121 
Failure  to  provide  for. 

29.  Failure  to  provide  a  suitable  dwelling 
place,  and  consequent  exposure  to  cold,  and 
failure  to  provide  sufficient  clothing  and 
food,  are  not  within  the  meaning  of  a  stat- 
ute allowing  a  divorce  for  extreme  and  re- 
peated cruelty.  Maddox  v.  Maddox,  189  111. 
152,  59  N.  E.  599,  52:  628 

b.  Desertion. 

Failure  to  Provide  Suitable  Support,  see  su- 
pra, 29, 
See  also  infra,  75. 

30.  Voluntary  abandonment  of  a  wife  by 
her  husband  is  shown  where  he  requires  her 
to  leave  his  house,  and  fails  to  provide  for 
her  support,  and  does  not  consent  to  her  re- 
turn. Jones  V.  Jones,  95  Ala.  443,  11  So. 
11,  18:  95 

31.  Merely  paying  an  allowance  to  one's 
wife  in  compliance  with  an  order  of  court 
after  abandoning  her,  without  furnishing 
her  any  other  support,  is  not  sufficient  to 
prevent  granting  her  a  divorce  under  a  stat- 
ute authorizing  a  divorce  for  "wilful  deser- 
tion for  three  years,  with  total  neglect  of 
duty."  Tirrell  v.  Tirrell,  72  Conn.  567,  45 
Atl.  153,  47:  750 

32.  A  divorce  from  a  wife  for  "utter  de- 
sertion continued  for  three  consecutive 
years"  may  be  granted  under  Me.  Rev.  Stat, 
ohap.  60,  §  2,  where  she  deserts  her  husband 
and  remains  away  from  him  for  the  full 
period  continuously,  and  unreasonably  re- 
fuses to  return,  although  o.nce  during  that 
time  he  visits  her  and  for  two  or  three 
nights  occupies  the  same  bed  with  her.  Dan- 
forth  V.  Danforth,  88  Me.  120,  33  Atl.  781, 

31:  608 

33.  When  a  husband,  not  entirely  blame- 
less for  the  act,  makes  no  effort  to  prevent 
his  desertion  by  his  wife,  and  acquiesces  in 
and  appears  satisfied  with  its  continuance, 
he  is  not  entitled  to  a  divorce  on  the  ground 
of  desertion.  Herold  v.  Herold  (N.  J.  Ch.) 
47  N.  J.  Eq.  210,  20  Atl.  375,  9:  696 
Leaving  husband  for  cause  as. 

34.  The  act  of  a  woman  in  leaving  her 
husband  for  cause  is  not  desertion,  within 
the  meaning  of  the  law  authorizing  a  divorce 
for  desertion.  Doolittle  v.  Doolittle,  78 
Iowa,  601,  43  N.  W.  616,  6:  187 

35.  Refusal  of  a  wife  for  a  time  to  live 
with  her  husband  on  the  harsh  condition  im- 


1043 


DIVORCE  AND  SEPARATION,  HI.  c— IV. 


posed  by  him  that  she  should  not  visit  her 
mother  will  not  constitute  desertion  on  her 
part  which  will  prevent  her  from  obtaining 
a  divorce  for  desertion,  where  an  uncondi- 
tional offer  by  her  to  return  to  him  has  been 
rejected,  and  he  has  left  the  state  and  pro- 
cured a  divorce  from  her  in  another  state. 
Williams  v.  Williams,  130  N.  Y.  193,  29  N. 
E.  98,  14:  220 

36.  Wilful  and  malicious  desertion  consti- 
tuting cause  for  divorce  is  not  shown  by  the 
facts  that  the  wife,  in  a  passion  roused 
by  a  single  blow  by  her  husband,  leaves  the 
house  without  intending  to  remain  away 
permanently,  and  on  reflection  returns  to 
find  the  home  barred  against  her,  and  then 
seeks  by  violence  to  enter,  for  which  she  is 
prosecuted  by  the  husband,  and  thereafter 
does  not  return.  Hardie  v.  Hardie,  162  Pa. 
227,  29  Atl.  886,  25:697 
Leaving  wife  for  cause. 

37.  A  wife's  offensive  behavior,  coarse  and 
indelicate  language,  and  her  anonymous  let- 
ters foully  slandering  one  of  her  husband's 
daughters  by  a  former  marriage,  do  not 
furnish  him  a  legal  justification  for  his 
abandonment,  which  will  prevent  her  from 
obtaining  a  divorce  for  abandonment.  Jones 
V.  Jones,  95  Ala.  443,  11  So.  11,  18:  95 
Refusal  to  have  sexual  intercourse. 

For  Editorial  Notes,  see  infra,  IX.  §  7. 

38.  A  wife's  refusal  to  have  sexual  inter- 
course with  her  husband  is  not  wilful  deser- 
tion within  the  meaning  of  a  statute  author- 
izing a  divorce  in  case  a  husband  or  wife  has 
"wilfully  deserted  or  absented  himself  or 
herself"  from  the  other  for  two  years. 
Fritts  V.  Fritts,  138  111.  436,  28  N.  E.  1058, 

14:  685 
Imprisonment. 
For  Editorial  Notes,  see  infra,  IX.  §  9. 

39.  The  lapse  of  five  years  after  the  con- 
viction of  a  crime  and  sentence  to  imprison- 
ment for  life  entitles  the  wife  of  the  person 
convicted  to  a  divorce,  under  Ky.  Stat.  § 
2117,  making  it  a  ground  for  divorce  that 
the  parties  had  been  living  apart  without 
cohabitation  for  five  years  before  the  appli- 
cation. Davis  V.  Davis,  102  Ky.  440,  43  S. 
W.  168,  39:  403 

c.  Drunkenness;    Use    of    Morphine. 

Evidence  of  Defendant's  Condition  after 
Commencement  of  the  Suit,  see  Evi- 
dence, 1721. 

See  also  supra,  20,  24,  26,  27. 

For  Editorial  Notes,  see  infra,  IX.  §§  7,  10. 

40.  habitual  intemperance,  within  the 
meaning  of  a  statute  authorizing  a  divorce 
for  such  cause,  is  not  shown  by  the  facts 
that  defendant  about  once  in  three  weeks 
became  intoxicated  during  the  evening  to 
such  an  extent  that  the  next  morning  he 
did  not  go  as  usual  to  his  work,  and  had 
continued  to  do  so  for  two  years,  if  it  had 
not  caused  loss  of  his  position,  nor  produced 
want  or  suffering  in  the  family.  Dennis  v. 
Dennis,  68  Conn.  186,  36  Atl.  37,  34:  449 

41.  111.  Rev.  Stat.  chap.  40,  §  1,  making 
habitual   drunkenness   a   cause   for   divorce, 


does  not  include  intoxication  produced  by 
the  use  of  morphine  by  means  of  a  hypoder- 
mic injection.  Youngs  v.  Youngs,  130  111. 
230,  22  N.  E.  806,  6:  548 

d.  Imprisonment. 

As  Ground  for  Annulling  Marriage,  see  Mar- 

riage,  60,  61. 
See  also  supra,  39.         • 
For  Editorial  Notes,  see  infra,  IX.  §  9. 

42.  A  sentence  to  imprisonment  in  the 
state  prison  in  a  foreign  state  is  not  a 
ground  of  divorce  within  the  statute  provid- 
ing that  a  divorce  may  be  decreed  when 
either  party  has  been  sentenced  to  confine- 
ment in  "the  state  prison."  Leonard  v. 
Leonard,  151  Mass.  151,  23  N.  E.  732,   6:  632 

43.  An  action  for  divorce  need  not  be 
brought  within  five  years  after  the  convic- 
tion for  a  felony  of  one  sentenced  to  impris- 
onment for  life,  under  Ky.  Stat.  §  2117, 
making  "condemnation  for  felony"  a  ground 
for  divorce,  and  Ky.  Civ.  Code,  §  423,  subs. 
3,  requiring  plaintiff  in  a  divorce  suit  to 
prove  that  the  cause  of  divorce  "occurred  or 
existed  within  five  years  next  before  the 
commencement  of  the  action."  Davis  v.  Da- 
vis, 102  Ky.  440,  43  S.  W.  168,  39:  40a 


IV.  Defenses;  Connivance;  Recrimination. 

Effect  of  Omitting  Noncollusion  Clause  from 
Cross  Bill,  see  Appeal  and  Error,  863. 

Evidence  as  to  Defendant's  Condition  After 
Commencement  of  the  Suit,  see  Evi- 
dence, 1721. 

Collateral  Attack  on  Judgment  for  Collu- 
sion, see  Judgment,  158. 

Judgment  for  Separation  as  Defense,  see 
Judgment,   199. 

Effect  of  Failure  to  Set  up  Defense,  see 
Judgment,    200.    201. 

See  also  supra,  32-38;  infra,  75. 

For  Editorial  Notes,  see  infra,  IX.  §§  8-11. 

Condonation. 

As  Ground  for  Bill  of  Review,  see  Review, 

10. 
For  Editorial  Notes,  see  infra,  IX.  §  8. 

44.  A  wife  who  continues  to  live  with  her 
husband  after  an  act  of  personal  violence 
condones  the  offense.  Youngs  v.  Youngs, 
130  111.  230,  22  N.  E.  806,  6:  548 
Connivance. 

For  Editorial  Notes,  see  infra,  IX.  §  8. 

45.  Connivance  of  a  husband  in  his  wife's 
adultery  is  not  shown,  where  he  already 
suspects  her  to  be  guilty,  by  merely  suffering 
her  in  a  single  instance  to  avail  herself  of  an 
opportunity  therefor  which  she  has  already 
arranged  without  his  knowledge,  even 
though  he  purposely  refrains  from  warning 
her  because  he  hopes  to  obtain  evidence 
which  will  entitle  him  to  a  divorce.  WilsoR 
V.  Wilson,  154  Mass.  194,  28  N.  E.  167, 

12:  524 

46.  The  right  to  a  divorce  for  adultery 
will  be  barred  if  plaintiff  consented  to  the^ 


DIVORCE  AND  SEPARATION,  V.  a. 


1043 


wnployment  of  a  person  to  allure  defendant- 
into  the  offense  for  whicli  the  action  is 
brought.  Dennis  v.  Dennis,  68  Conn.  186,  36 
All.  37,  34:  449 

47.  A  woman  who  authorizes  her  attorney 
to  employ  detectives  to  watch  ner  husband, 
whom  she  suspects  of  infidelity,  for  the  pur- 
pose of  obtaining  evidence  which  will  en- 
title her  to  a  divorce,  and  who  goes  with 
them  at  a  time  appointed  to  surprise  him  in 
a  compromising  position  with  a  lewd  woman 
employed  by  them  for  that  purpose,  may  be 
found  to  have  known  that  the  woman's 
movements  were  governed  by  them,  so  as  to 
show  connivance  on  her  part  which  will  bar 
her  right  to  divorce.  Id. 
Recrimination.  ^ 
Sufficiency  of  Proof  that  Plaintiffs  Aban- 
donment of  Her  Husband  was  Justified, 
see  Evidence,  2285. 

Mode  of  Pleading,  see  Pleading,  541. 

48.  The  adultery  of  plaintiff  is  a  good  de- 
fense to  an  action  for  divorce  on  the  ground 
of  cruel  and  inhuman  treatment.  Hubbard 
V.  Hubbard,  74  Wis.  650,  43  N.  W.  655, 

6:58 

49.  The  setting  up  of  adultery  as  a  de- 
fense to  the  granting  of  a  divorce  for  ex- 
treme and  repeated  cruelty  and  impotency 
is  not  prevented  by  a  statute  providing  that 
if  it  shall  appear  that  the  injury  complained 
of  was  occasioned  by  collusion,  or  that  both 
parties  have  been  guilty  of  adultery,  when 
adultery  is  the  ground  of  complaint,  no  ai- 
vorce  shall  be  decreed.  Decker  v.  Decker, 
193  111.  285,  61  N.  E.  1108,  55:  697 

50.  Cruelty,  which  is  a  statutory  ground 
of  divorce,  may  be  set  up  by  a  plea  of  re- 
crimination as  a  oar  to  a  bill  for  divorce  on 
the  ground  of  adultery.  Church  v.  Church, 
16  R.  I.  667,  19  Atl.  244,  7:  385 

51.  A  divorce  will  not  be  denied  to  a  man 
in  case  of  his  wife's  adultery,  by  reason  of 
the  fact  that  he  married  her  while  under 
arrest  on  bastardy  process,  merely  to  have 
the  child  born  in  wedlock  and  on  an  agree- 
ment with  her  that  they  should  never  live 
together,  which  they  have  kept.  Franklin 
V.  Franklin,  154  Mass.  515,  28  N.  E.  681, 

13:  843 
Second  marriage  before  decree  absolute. 

52.  One  who  has  obtained  a  divorce  nisi 
may  have  the  decree  made  absolute,  not- 
withstanding he  has  married  again,  if  before 
doing  so  he  waited  the  time  required  by  law, 
and  then  married  believing,  and  having  rea- 
sonable grounds  to  believe,  that  the  decree 
had  been  made  absolute,  and  was  guilty  of 
no  negligence.  Pratt  v.  Pratt,  157  Mass. 
503.  32  N.  E.  747,  21:97 

53.  The  erroneous  belief  that  a  divorce  has 
been  granted,  and  reliance  upon  the  state- 
ment of  an  attorney  to  that  effect,  who 
shows  what  purports  to  be  a  copy  of  a  de- 
cree of  divorce,  and  a  subsequent  marriage 
contracted  on  the  faith  of  the  supposed  di- 
vorce, will  not  prevent  cohabitation  there- 
under from  being  adulterous,  so  as  to  bar  a 
claim  for  divorce  in  the  pending  action. 
Gordon  v.  Gordon,  141  111.  160,  30  N.  E.  446, 

21 :  387 
64.  Marriage  after  a  divorce  nisi  and  be- 


fore a  decree  absolute  will  defeat  the  right 
to  have  the  decree  made  absolute,  although 
the  party  believed  the  divorce  was  absolute, 
if  this  was  merely  a  mistake  of  law,  but  not 
if  his  mistake  Was  due  to  a  mistake  of  fact 
and  he  was  not  chargeable  with  negligence 
or  any  moral  fault.  Darrow  v.  Darrow,  159 
Mass.  262,,  34  N.  E.  270,  21:  100 


V.  Alimony. 

a.  In  General. 

As  to  Other  Property  Rights,  see  infra,  VI. 
Survival   of  Judgment  for,  see  Abatement 

and  Revival,  12. 
Failure  to  Pay,  as  Defense  to  Divorce  Suit, 

see  Aqtion  or  Suit,  40. 
Review  of,  on  Appeal,  see  Appeal  and  Error, 

783. 
Assignability  of  Future  Instalment,  see  As- 
signment, 25. 
Contract  to  Divide  with  Attorney,  see  Attor- 
neys, 68. 
Authority  of  Attorney  as  to,  see  Attorneys, 

49. 
As  Provabk  Debt,  see  Bankruptcy,  36. 
Release  from  Liability  for,  by  Discharge  in 

Bankruptcy,  see  Bankruptcy,  56. 
Conflict  of  Laws  as  to  Enforcement  of,  see 

Conflict  of  Laws,  329. 
Due  Process  as  to,  see  Constitutional  Law, 

896. 
Validating  Void  Marriage  so    as   to  Make 

Husband  Liable  for,  see  Constitutional 

Law,  127. 
Failure  to  Pay  as  Contempt,  see  Contempt, 

49,  50,  95-97;   Pleading,  439;   and  also 

infra,  IX.  §  21, 
Jurisdiction  of  Proceeding  to  Enforce  Decree, 

see  Courts,  259. 
Crops  Passing  Under  Decree  for,  see  Crops, 

2. 
Estoppel  to  Deny  Right  to  Open  Judgment 

for  Allowance  of,  see  Estoppel,  153. 
Presumption    in    Aid    of    Jurisdiction    to 

Award,  see  Evidence,  632. 
Married  Woman's  Liability  on  Contract  to 

Pay  Attorney  for  Securing  Divorce,  see 

Husband  and  Wife,  39. 
Husband's  Criminal  Liability  in  Absence  of 

Provision  for,  see  Husband   and  Wife, 

241,  242. 
Personal  Judgment  for,  see  Judgment,  32,  33, 

35-37. 
Judgment  on  Bond  to  Secure,  see  Judgment, 

48,  76. 
Conclusiveness    of    Judgment    as    to,    see 

Judgment,  204,  205. 
Enforcement  of  Decree  for,  see  Judgment, 

379,  380,  396-398. 
Limitation  of  Action  for  Annual  Instalments 

of,  see  Limitation  of  Actions,  210. 
Allegations  as  to,  see  Pleading,  439. 
Strikin"-  out  Answer  for  Refusal  to  Pay,  see 

Contempt  of  Court,  92;  Pleading,  167. 
Construction  of  Adopted  Statute  as  to,  see 

Statutes,  531. 
For  Editorial  Notes,  see  infra,  IX.  §§  ltt-21. 

55.  The  wife   alone  can   maintain   an  ac- 


1044 


DIVORCE  AND  SEPARATION,  V.  b. 


tion  for  alimony.    Meldrum  v.  Meldrum,  15 
Colo.  478,  24  Pac.  1083,  11:  65 

56.  Alimony  is  a  sum  ordered  by  the  court 
to  be  paid  to  a  wife  by  the  husband  for  her 
support  during  the  time  she  lives  separate 
from  him,  or  paid  by  him  after  divorce  for 
her  maintenance.  Greene  v.  Greene,  49  Neb. 
546,  68  N.  W.  947,  34:  110 

57.  The  power  to  grant  alimony  independ- 
ent of  statute  belongs  to  a  court  of  chancery 
in  a  suit  to  declare  a  marriage  void  ab  in- 
itio.   Prine  v.  Prine,  36  Fla.  676,  18  So.  781, 

34:  87 

58.  The  right  to  award  alimony,  conferred 
on  the  courts  of  the  District  of  Columbia  by 
the  act  of  Congress  of  Jime  19,  1860,  was 
subject  to  the  qualifications  and  limitations 
inherent  in  it  in  the  English  courts  and  un- 
der the  Maryland  act  of  1777.  Alexander  v. 
Alexander,  13  App.  D.  C.  334,  45:  806 
Independent  suit  for. 

See  also  supra,  8,  55;  infra,  73,  120. 
For  Editorial  Notes,  see  infra,  IX.  §  18. 

59.  A  bill  for  alimony  cannot  be  main- 
tained after  a  decree  of  absolute  divorce 
for  misconduct  of  the  wife,  which  allows 
each  party  to  remarry.  Downey  v.  Downey, 
98  Ala.  373,  13  So.  412,  21:  677 

60.  In  South  Dakota  a  wife  justified  by 
her  husband's  misconduct  in  living  separate 
from  him,  may  maintain  an  independent  ac- 
tion against  him  for  her  support  without  re- 
gard to  the  question  of  divorce.  Bueter  v. 
Bueter,  1  S.  D.  94,  45  N.  W.  208,  8:  562 

61.  A  statutory  provision  for  alimony 
when  a  divorce  is  granted  does  not  by  im- 
plication exclude  a  right  of  action  to  enforce 
a  husband's  obligation  to  furnish  his  wife 
maintenance  independent  of  a  proceeding  for 
divorce.  Edgerton  v.  Edgerton,  12  Mont. 
122.  29  Pac.  966,  16:  94 

62.  That  a  wife  is  living  in  the  same 
house  with  her  husband  and  performing 
some  of  the  duties  of  a  wife,  will  not  pre- 
vent her  from  maintaining  a  suit  for  sep- 
arate maintenance  under  a  statute  permit- 
ting sueh  suit  "when  the  husband  fails, 
without  just  cause,  to  furnish  suitable  sup- 
port for  his  wife,"  where  the  contingency 
of  the  parties  living  apart  is  made  a  sepa- 
rate ground  for  the  suit.  Bucknam  v. 
Bucknam,  176  Mass.  229,  54  N.  E.  343, 

49:  735 
Appropriation  of,  for  wife's  debts. 

63.  Alimony  awarded  to  an  innocent  wife 
by  a  court  of  equity  as  incidental  to  a  decree 
of  divorce  in  her  favor  cannot  be  appropri- 
ated by  her  creditor  for  a  debt  existing  prior 
to  the  decree  of  divorce.  Romaine  v.  Chaun- 
cey,  129  N.  Y.  566,  29  N.  E.  826,  14:  712 
Assignability  of  right  to. 

64.  A  wife's  claim  for  an  allowance  of  ali- 
mony cannot  be  assigned  to  another,  being 
a  purely  personal  right,  and  not  a  proper- 
ty right.  Lvnde  v.  Lynde  (N.  J.  Err.  «& 
App.),  64  N.  J.  Eq.  736,  52  Atl.  694,      58:  471 

b.  Temporary  Alimony;  Suit  Money. 

Allowance  of.  on  Appeal,  see  Appeal  and  Er- 
ror,   1194. 
See  also  infra,  105,  106. 


65.  The  denial  by  the  husband  of  hi« 
wife's  allegations  in  a  suit  for  separate 
maintenance  will  not  prevent  an  allowance 
of  temporary  alimony,  but  the  court,  in  the 
exercise  of  its  discretion,  may  make  such 
allowance  if  the  wife  shows  a  meritorious 
cause  of  action  by  her  pleadings,  and  the 
court  is  satisfied  that  she  is  proceeding  in 
good  faith.  Harding  v.  Harding,  144  111. 
588,  32  N.  E.  206,  21 :  310 

66.  An  issue  as  to  the  jurisdiction  of  the 
court  on  the  ground  that  both  parties  are 
residents  and  citizens  of  other  states  will 
not  prevent  the  court  from  making  an  order 
for  temporary  alimony  pending  the  deter- 
mination of  that  issue.  Miller  v.  Miller,  33 
Fla.  453,  15  So.  222,  24:  137 

67.  The  fact  that  a  wife  has  property  in 
her  own  right  will  not  prevent  an  allowance 
to  her  of  temporary  alimony  in  a  suit  for 
separate  maintenance;  but  if  her  income  is 
insufiScient  and  that  of  her  husband  ample, 
she  may  be  allowed  from  his  income  such  a 
sum  as  will,  wh«n  added  to  her  own,  enable 
her  to  live  comfortably  pending  the  litiga- 
tion, in  the  station  in  life  to  which  he  has 
accustomed  her.  Harding  v.  Harding,  144 
111.  588,  32  N.  E.  206,  21:310 

68.  Provisional  alimony  in  addition  to  suit 
money  may  be  allowed  in  a  suit  for  separate 
maintenance  \mdec  the  Illinois  statute, 
which  authorizes  an  allowance  in  sueh  cases 
"to  enable  the  wife  to  prosecute  her  suit  as 
in  case  of  divorce."  Id. 
Additional  alimony. 

69.  Additional  alimony  pendente  lite  will 
not  be  awarded  to  a  wife  to  enable  her  to 
meet  the  expense  of  the  professional  educa- 
tion of  her  nineteen-year-old  son,  whose  cus- 
tody was  not  awarded  to  either  parent, 
against  the  opposition  of  the  husband,  who 
wishes  his  son  to  go  into  business.  Streit- 
wolf  V.  Streitwolf  (N.  J.  Err.  &  App.)  58 
N.  J.  Eq.  570,  43  Atl.  904,  45:  842 
Suit  money. 

Allowance  of,  on  Appeal,   see  Appeal   and 

Error,  1194. 
Personal  Judgment  for,  see  Judgment,  33. 
See  al.«w)  supra,  68. 

70.  Where  no  intricate  questions  of  law 
were  involved,  but  a  large  amount  of  work 
was  necessarily  required  of  plaintiff's  attor- 
ney in  a  divorce  suit,  a  total  allowance  of 
$200  for  prosecuting  an  appeal  was  held 
•  reasonable.    Doolittle  v.  Doolittle,  78  Iowa, 

691,  43  N.  W.  616,  6:  187 

71.  A  woman,  in  a  suit  for  divorce,  may 
be  allowed  a  reasonable  sum  for  an  attor- 
ney's fee  in  prosecuting  an  appeal.  Id. 

72.  An  order  for  suit  money  in  the  sum  of 
$100  was  made  against  plaintiff  in  an  action 
to  annul  a  marriage  contracted  by  him  while 
under  the  statutory  age  of  consent,  although 
he  was  not  only  an  infant,  but  without 
means,  where  his  father  had  ample  means, 
and  was  to  some  extent  responsible  for  the 
suit,  and  neither  defendant  nor  her  father 
were  able  to  pay  the  expense  of  the  suit. 
Eliot  V.  Eliot,  77  Wis.  634,  46  N.  W.  806, 

10:  568 

73.  In  an  independent  action  for  her  sup- 
port  by   a  wife  justified   by  her  husband's 


DIVORCE  AND  SEPARATION,  V.  c,  d. 


1045 


misconduct  in  living  separate  from  him,  if 
the  wife  is  d-estitute  the  court  has  power  to 
include  in  its  judgment  an  allowance  of  at- 
torney's fees  as  necessaries  for  her.  Bueter 
V.  Bueter,  1  S.  D.  94,  45  N.  W.  208,     8:  562 

c.  Permanent  Allowance, 

74.  The  permanent  alimony  granted  to  a 
woman  on  divorce  need  not  be  limited  to  an 
allowance  payable  at  stated  periods  suffi- 
cient for  her  support,  but  the  allowance  of  a 
gross  sum  out  of  the  husband's  estate  in  ad- 
dition to  a  monthly  allowance  is  within  the 
power  of  the  court,  under  Wis.  Rev.  Stat.  § 
2364,  authorizing  such  alimony  as  the  court 
shall  deem  just  and  reasonable,^  regarding 
the  husband's  ability  to  pay,  the  special  es- 
tate of  the  wife,  and  all  the  circumstances 
of  the  case.  Hooper  v.  Hooper,  102  Wis.  598, 
78  N.  W.  758,  44:  725 

75.  A  wife's  ill  temper  and  mean  disposi- 
tion which  make  her  principally  responsible 
for  an  unhappy  state  of  feeling  in  the  house- 
hold, although  not  a  legal  justification  to 
her  husband  for  abandoning  her,  may  in  a 
measure  palliate  his  offense  and  abridge  her 
claim  to  an  allowance  from  his  estate  for 
her  separate  maintenance,  on  obtaining  a  di- 
vorce from  him  for  abandonment.  Jones  v. 
Jones,  95  Ala.  443,  11  So.  11,  18:  95 

76.  A  pension  received  by  a  soldier  of  the 
Civil  War  from  the  Federal  government  may 
be  taken  into  consideration  as  part  of  his  re- 
sources, in  fixing  the  future  alimony  to  be 
paid  by  him,  when  his  wife  is  granted  a  di- 
vorce, although,  under  the  Federal  statutes, 
it  is  not  subject  to  seizure  by  any  legal  pro- 
cess until  it  has  reached  his  possession. 
Bailey  v.  Bailey,  76  Vt.  264,  56  Atl.  1014, 

65:  332 
Effect  of  previou'S  agreement  as  to. 
See  also  infra,  87. 

77.  Although  husband  and  wife  cannot 
lawfully  enter  into  an  agreement  for  di- 
vorce, they  may  agree  as  to  the  amount  and 
terms  of  payment  of  alimony,  and  the  court 
will  embody  such  agreement  in  its  decree. 
Storey  v.  Storey,  125  111.  608,  18  N.  E.  329, 

1:  320 

78.  No  additional  allowance  can  be  grant- 
ed to  a  wife  on  divorce,  where  a  prior  valid 
agreement  for  separation  making  a  provi- 
sion for  her,  which  she  and  her  trustee  have 
covenanted  to  accept  in  full  for  her  support 
and  maintenance  during  her  life,  is  still  in 
force.  Galusha  v.  Galusha,  116  N.  Y.  635, 
22  N.  E.  1114,  '  6:  487 
In  spendthrift  trust. 

79.  A  woman  who,  upon  procuring  a  di- 
vorce from  her  husband,  is  awarded  alimony, 
is  a  creditor  entitled  to  the  benefit  of  the 
New  iork  statute  providing  that  the  income 
of  a  spendthrift  trust  beyond  what  is  neces- 
sary for  the  support  of  the  beneficiary  shall 
be  liable  in  equity  to  the  claims  of  his  cred- 
itors. Wet  more  v.  Wetmore,  149  N.  Y.  520, 
44  N.  E.  169,  33:  708 

80.  In  directing  the  surplus  income  of  a 
spendthrift  trust  to  be  applied  upon  the 
claim  of  a  divorced  wife  to  alimony,  under 
th'C  New  York  statute  permitting  such  sur- 


plus to  be  applied  in  favor  of  creditors, 'a 
court  of  equity  does  not  exceed  its  authority 
by  requiring  the  trustee  to  pay  over,  not 
only  th€  surplus  accumulated,  but  that 
which  shall  thereafter  accrue.  Id. 

81.  Upon  applying  the  income  of  a  spend- 
thrift trust,  under  the  New  York  statute, 
to  the  support  of  a  divorced  wife  of  the 
beneficiary,  the  court  should  make  due  pro- 
vision for  his  support,  and  give  him  leave 
to  apply  for  orders  at  the  foot  of  the  judg- 
ment which  are  necessary  for  the  securing 
of  his  support.  Id. 
Instances  of  amount. 

82.  The  allo^yance  of  $3,500  as  permanent 
alimony  to  a  wife  who  is  nearly  helpless,  re- 
quiring the  constant  attention  of  an  assist- 
ant, and  not  likely  to  recover  her  health,  is 
not  excessive  where  her  property  is  less  than 
$2,000  and  that  of  her  husband  is  not  less 
than  $14,000.  Doolittle  v.  Doolittle,  78 
Iowa,  691,  43  N.  W.  616,  6:  187 
To  husband. 

For-  Editorial  Notes,  see  infra,  IX.  §  19. 

83.  A  husband  cannot  recover  alimony  to 
be  paid  out  of  his  divorced  wife's  separate 
estate  unless  it  is  allowed  by  statute,  and  it 
is  riot  allowed  by  Neb.  Comp.  Stat.  1895, 
chap.  25,  §  10,  authorizing  a  petition  or  bill 
of  divorce,  alimony,  and  maintenance  to  be 
exhibited  "by  a  wife  in  her  own  name,  as 
well  as  a  husband."  Greene  v.  Greene,  49 
Neb.  546,  68  N.  W.  947,  34:  110 

d.  Subsequent  Change. 

As  to  Custody  and  Maintenance  of  Chil- 
dren, see  infra,  118,  119. 

Appealability  of  Order  as  to,  see  Appeal  and 
Error,  26,  32. 

Presumption  as  to,  on  Appeal,  see  Appeal 
and   Error,   V.   d. 

Impairment  of  Vested  Rights  by  Statute 
Authorizing,  see  Constitutional  Law, 
153. 

Consideration  of  Sufficiency  of  Alimony  on 
Bill  of  Review,  see  Review,  9. 

See  also  supra,  77,  78. 

84.  Failure  to  reserve  the  right  subse- 
quently to  reduce  the  amount,  in  a  decree 
awarding  alimony,  does  not  deprive  the 
court  of  power  subsequently  to  make  the  re- 
duction, even  in  cases  of  absolute  divorce. 
Alexander  v.  Alexander,  13  App.  D.  C.  334, 

45:  806 

85.  A  decree  of  a  certain  sum  annually  to 
a  wife  as  alimony  during  her  natural  life 
in  case  she  remains  unmarried,  but  to  ter-- 
minate  in  the  event  of  her  marriage,  al- 
though it  declares  that  it  shall  stand  as  a 
final  disposition  of  property  between  her 
and  her  husband,  is  not  a  final  disposition  of 
the  estate  of  the  husband,  under  Wis.  Rev. 
Stat.  §  2364,  but  is  subject  to  future  modi- 
fication by  the  court.  Kempster  v.  Evans.  81 
Wis.  247,  51  N.  W.  327,  15:  391 

86.  A  decree  for  alimony  in  a  case  of  di- 
vorce o  vinculo,  made  without  reserve,  al- 
though for  monthly  payments,  is  final,  and 
cannot  be  changed  after  the  expiration  of 
term  or  the  time  within  which  a  new  trial 


1046 


DIVORCE  AND  SEPARATION,  VI. 


may  be  had.     Sampson  v.  Sampson,  16  R.  I. 
456,  16  Atl.  711,  3:  349 

Effect  of  previous  agreement. 

87.  A  decree  based  on  a  postnuptial  agree- 
ment by  which  a  wife  is  given  a  certain 
sum  per  month  for  her  maintenance  consti- 
tutes a  contract  which  cannot  be  modified 
by  the  court  on  account  of  a  change  in  the 
liusband's  financial  condition,  so  as  to  re- 
duce the  amount  payable,  without  the  wife's 
consent.  Henderson  v.  Henderson,  37  Or. 
141,  60  Pac.  597,  48:  766 
Effect  of  wife's  adultery. 

For  Editorial  Notes,  see  infra,  IX.  §   16. 

88.  The  adultery  of  a  wife  after  a  divorce 
and  allowance  of  alimony  payable  in  instal- 
ments will  not  of  itself  require  a  reduction 
by  the  court  of  the  amount  of  such  allow- 
ance, where  it  is  not  shown  that  the  pay- 
ments are  to  be  made  out  of  the  earnings  of 
the  husband,  or  that  the  property  did  not 
(■ome  from  her  originally  or  was  not  the  re- 
sult of  their  joint  accumulations, — especially 
where  the  husband  had  failed  to  pay  prior 
instalments,  and  it  is  not  shown  that  her 
wrongdoing  may  not  have  been  the  result 
of  his  failure  to  furnish  such  support.  Cole 
v.  Cole,  142  111.  19,  31  N.  E.  109,  19-.  811 

89.  The  subsequent  adultery  of  the  wife 
will  release  the  husband  from  the  payment 
of  alimony  awarded  her  in  a  decree  of  di- 
vorce a  mensa  et  thoro.  Cariens  v.  Cariens, 
50  W.  Va.  113,  40  S.  E.  335,  55:  930 
Effect  of  wife's  remarriage. 

For  Editorial  Notes,  see  infra,  IX.  §  20. 

90.  The  remarriage  of  a  divorced  woman 
to  one  whose  ability  to  support  her  is  un- 
questionable will  prevent  the  further  appli- 
cation for  her  benefit  as  alimony  of  the  in- 
come of  a  testamentary  trust  instituted 
for  the  support  of  the  husband  from  whom 
she  was  divorced.  Wetmore  v.  Wetmore, 
162  N.  Y.  503,  56  N.  E.  997,  48:666 
Effect  of  husband's  remarriage. 

For  Editorial  Notes,  see  infra,  IX.  §  20. 

91.  One  cannot  relieve  himself  from  the 
payment  of  alimony  according  to  the  provi- 
sions of  a  divorce  decree  by  the  obligations 
imposed  upon  him  by  a  second  marriage. 
State  ex  rel.  Brown  v.  Brown,  31  Wash. 
397,  72  Pac.  86,  62:  974 
Effect  of  husband's  death. 

92.  The  rule  at  common  law,  that  the 
death  of  the  husband  put  an  end  to  the  pay- 
ment of  alimony,  applied  only  in  divorces  a 
mensa  et  thoro,  which  operated  as  mere 
temporary  separations,  leaving  all  the  other 
marital  rights  and  obligations  in  full  force, 
the  marriage  continuing  to  exist  until  it 
was  dissolved  by  death.  Storey  v.  Storey, 
125  HI.  608,  18  N.  E.  329,  1:  320 

93.  The  continuance  of  alimony  after  the 
death  of  the  husband  while  the  wife  remains 
unmarried  is  strongly  favored  where  a  first 
wife,  after  twenty  years,  during  which  one 
child  was  born  and  by  joint  efforts  a  large 
fortune  was  accumulated,  secures  a  divorce 
for  her  husband's  misconduct.  Id. 

94.  Where,  as  under  the  statute  of  Illinois, 
alimony  is  awarded  upon  a  decree  of  abso- 
lute divorce,  the  right  of  the  divorced  wife 
to  have  the  payment  thereof  continued  out 


of  the  estate  of  the  husband  after  his  de- 
cease will  depend  upon  the  nature  and  terms 
of  the  decree.  Id. 

95.  Upon  a  consent  decree  for  alimony  to 
the  wife,  "so  long  as  she  shall  remain  "^sole 
and  unmarried/'  where  the  husband  gives  a 
bond  as  security  therefor,  to  which  he  binds 
himself,  his  "heirs,  executors,  and  adminis- 
trators," the  payment  will  continue  after 
his  death,  out  of  his  estate,  so  long  as  she 
remains  alive  and  unmarried.  Id. 
Husband's  insolvency. 

96.  A  decree  granting  alimony  is  not  a 
debt  "founded  on  a  contract,"  within  the 
meaning  of  a  statute  providing;  for  relief 
from  such  debts  by  a  discharge  in  insolvency. 
Noyes  v.  Hubbard,  64  Vt.  302,  23  Atl.  727, 

15:  394 
At  what  time. 

97.  Power  of  a  court  to  alter  an  allow- 
ance of  alimony  "from  time  to  time,"  under 
111.  Rev.  Stat.  1891,  chap.  40,  §  18,  may  he 
exercised  after  the  term  at  which  the  decree 
for  alimony  was  rendered.  Cole  v.  Cole,  142 
111.  19,  31  N.  E.  109,  19:  811 
But  as  to  case  not  under  such  statute,  see 
contra,  Sampson  v.  Sampson,  16  R.  I.  456, 
16  Atl.  711,  3:  349 


VI.  Other  Property  Rights. 

Jurisdiction  Over,  see  Courts,  55,  60. 

Effect   of   Divorce   on    Husband's    Right    of 

Curtesy,  see  Curtesy,  11-13. 
Effect  on  Right  to  Inherit,  see  Descent  and 

Distribution,  52,  53. 
Effect  on  Dower,  see  Dower,  45-55. 
Effect  on  Homestead,  see  Homestead,  34. 
Effect  on  Wife's  Right  to  Life  Insurance,  see 

Insurance,  1182,  1184,  1234. 
Estoppel  as  to,  see  Estoppel,  283. 
Conclusiveness  of  Former  Judgment   as  to, 

see  Judgment,  201,  202. 
Rights    Under   Decree   in   Other    State,   see 

Judgment,  373. 
See  also  infra,  118. 
For  Editorial  Notes,  see  infra,  IX.  §  22. 

98.  A  husband  who,  pursuant  to  a  decree 
of  divorce  adjusting  property  rights,  pays 
money  to  his  former  wife  within  six  mouths 
from  the  date  of  the  judgment,  cannot  re- 
claim it  from  the  administrator  of  her  estate 
should  she  die  within  six  months  from  the 
date  of  the  decree  with  the  money  in  her 
possession,  since  the  title  to  the  money 
passes  absolutely  to  her,  although,  by  stat- 
ute, the  decree  does  not  become  absolute 
until  the  end  of  six  months.  Durland  v. 
Durland,  67  Kan.  734,  74  Pac.  274,       63:  9.59 

99.  In  a  divorce  suit,  the  real  property 
whioh  comes  to  the  wife  as  a  result  of  the 
divorce  is  not  the  subi»ct-matter  of  the  liti- 
gation. The  court  has  no  jurisdiction  to  af- 
fect or  devest  the  title  of  the  husband  to 
lands  owned  by  him,  or  to  decree  one  third 
of  them  to  the  wife,  independent  of  a  de- 
cree for  divorce.  Nor  has  the  plaintiff  any 
title  upon  which  to  base  a  suit  to  recover 
any  portion  of  the  same,  except  as  it  comes 


DIVORCEE  AND  SEPARATION,  VII. 


1047 


by  force  of  the  statute  upon  a  decree  for  a 
divorce.  Houston  v.  Timmerman,  17  Or.  490, 
21  Pac.  1037,  4:  716 

100.  An  equitable  division  of  property 
jointly  accumulated  by  persons  living  to- 
gether as  husband  and  wife  can  be  made  by 
the  court  in  an  action  for  divorce  wherein 
the  marriage  is  found  to  be  void  because  of 
a  prior  marriage  of  one  of  the  parties,  and  a 
decree  of  nullity  is  entered,  although  the 
court  has  no  authority  to  grant  alimony  as 
such.  Werner  v.  Werner,  59  Kan.  399,  53 
Pac.  127,  41:349 

101.  A  tenancy  by  entirety  is  changed  by 
an  absolute  divorce,  into  a  tenancy  in  com- 
mon without  survivorship.  Stelz  v.  Schreck, 
128  N.  Y.  263,  28  N.  E.  510,  <i       13:  325 

102.  The  title  of  a  wife,  or  of  a  wife  and 
children,  to  real  property  which  is  vested 
during  the  marriage  by  the  husband's  free 
act,  is  not  affected,  either  at  law  or  in  equi- 
ty, by  a  subsequent  divorce  based  on  her 
adultery.  Kinzy  v.  Kinzy,  115  Mo.  496,  22 
S.  W.  497,  20:  222 

103.  When  a  divorce  is  granted  to  a  wife 
for  causes  other  than  adultery,  if  the  ac- 
complishment of  her  support  renders  it  nec- 
essary, the  court  may  decree  to  her  the  title 
of  either  real  or  personal  property  belonging 
to  her  husband,  under  Nev.  Gen.  Stat.  §  496, 
authorizing  property,  in  certain  cases,  to  be 
"set  apart"  for  the  support  of  the  wife  un- 
der such  circumstances.  Powell  v.  Campbell. 
20  Nev.  232,  20  Pac.  156,  *      2:  615 

104.  A  wife  to  whom  her  husband  has  con- 
veyed homestead  property  by  a  valid  deed 
prior  to  the  commencement  of  a  divorce  suit 
must  be  regarded  as  "the  former  owner," 
under  Cal.  Civ.  Code,  §  146,  subd.  4,  which 
provides  that  on  a  divorce  a  homestead 
which  has  been  selected  from  the  separate 
property  of  either  party  shall  be  assigned 
to  the  former  owner  subject  to  the  power 
of  the  court  to  assign  it  for  a  limited  period 
to  the  innocent  partv.  Burkett  v.  Burkett, 
78  Cal.  310,  20  Pac.  715,  3:  781 

105.  Temporary  alimony  may  be  granted 
pendente  lite,  but  the  title  of  the  real  estate 
of  the  defendant  remains  intact,  and  cannot 
be  devested  during  the  pendency  of  the  liti- 
gation, but  only  when  a  decree  has  been 
rendered  that  the  marriage  is  dissolved. 
Houston  V.  Timmerman,  17  Or.  499,  21  Pac. 
1037,  4:  716 

106.  It  is  "whenever  a  marriage  shall  be 
declared  dissolved"  that  the  Oregon  statute 
operates,  not  before  or  pendente  lite;  and 
the  court  is  then  authorized,  and  it  be- 
comes its  "duty  ...  to  enter  a  decree" 
for  the  undivided  one-third  part  in  fee  of 
the  whole  of  the  real  estate  "owned  by  the 
defendant  at  the  time  of  such  decree"  for 
a  divorce.  Id. 


VII.  Custody  and  Support  of  Children. 

Mother's  Right  of  Action  for  Death  of  Child, 
see  Death,  25. 

Domicil  of  Child,  see  Domicil,  7. 

Jurisdiction  to  Render  Judgment  as  to  Cus- 
tody, see  Judgment,  37. 


Pleading  as  to,  see  Pleading,   164. 

See  also  supra,  69;  infra,  125. 

For  Editorial  Notes,  see  infra,  IX.  §  15. 

107.  The  father's  duty  to  maintain  a  child 
after  divorce,  where  there  is  no  decree  of  the 
court  relating  thereto,  remains  as  before, 
especially  if  the  custody  of  the  child  is  not 
taken  from  him.  Re  Zilley's  Estate,  98  Wis. 
428,  74  N.  W.  126,  40:  579 
Father's   liability  for   support   of   child   in 

custody  of  mother. 

108.  The  duty  of  supporting  a  child  which, 
by  divorce  decree,  is  given  to  the  care  and 
custody  of  the  mother,  is  still  left  to  the 
father,  if  the  decree  makes  no  provision  on 
that  subject.  Keller  v.  St.  Louis,  152  Mo. 
596,  54  S.  W.  438,  47:391 

109.  A  divorced  wife  can  maintain  an  ac- 
tion against  her  former  husband  for  th« 
maintenance  of  a  minor  child,  when  the 
father  is  found  unfit  to  have  the  custody  of 
the  child  and  this  has  been  awarded  to  her. 
Gibson  v.  Gibson,  18  Wash.  489,  51  Pac.  1041, 

40:  587 

110.  A  woman  who  has  been  given  the 
custody  of  minor  children  on  obtaining  a 
divorce  cannot  maintain  an  action  at  law 
against  the  estate  of  her  deceased  husband 
for  their  board.  Brown  v.  Smith,  19  R.  I. 
319,  33  Atl.  466,  30:  680 

111.  An  order  that  the  father  pay  for  the 
support  of  minor  children  awarded  to  the 
custody  of  the  mother  without  any  provi- 
sion for  their  maintenance,  by  a  decree  of 
divorce,  may  be  made  by  a  petition  in  that 
case  long  after  the  decree  has  become  final 
and  the  mother  has  remarried.  McKav  v. 
San  Francisco  Super.  Ct.  120  Cal.  143,  52  Pac. 
147,  40:  585 

112.  A  woman  cannot  recover  from  her 
former  husband  for  necessaries  furnished 
their  children,  of  whom  she  was  given  the 
custody  in  a  decree  of  divorce  based  on  her 
fault,  without  any  order  respecting  their 
maintenance,  unless  he  has  promised  to  pay 
for  such  necessaries  or  requested  that  they 
be  furnished.  Fulton  v.  Fulton,  52  Ohio  St. 
229,  39  N.  E.  729,  29:  678 

113.  An  allowance  to  a  wife  for  the  sup- 
port of  minor  children  pending  a  divorce  suit 
cannot  be  allowed  w'here  no  order  is  made 
as  to  their  custody,  and  the  father  wishes 
to  keep  them  at  his  home  where  he  is  ready 
to  provide  for  them  suitably.  Harding  v. 
Harding,   144  111.  588,  32  N.   E.  206, 

21:  310 

114.  Recovery  for  the  support  of  a  minor 
son  surreptitiously  taken  from  the  father 
by  the  mother  after  divorce,  without  any 
decree  as  to  the  custody  of  the  child,  when 
he  continues  to  live  with  the  mother  after 
her  remarriage,  cannot  be  had  by  her  hus- 
band from  the  father  merely  because  he  has 
permitted  the  child  to  remain  with  them 
without  an  agreement  or  demand  for  com- 
pensation to  them.  Foss  v.  Hartwell.  168 
Mass.  66,  46  N.  E.  411,  37:  589 

115.  A  promise  of  the  father  to  pay  the 
mother  for  maintaining  their  boy  after  he 
has  reached  the  age  when  the  father  was  en- 
titled to  have  him,  under  a  decree  of  divorce 


1048 


DIVORCE  AND  SEPARATION,  VIII    a,  b. 


granted  for  the  father's  fault,  will  be  im- 
plied, although  "he  has  tried  to  get  the  cus- 
tody of  the  boy  and  has  told  the  mother 
that  unless  he  could  get  it  he  would  not  pay 
for  the  boy's  keeping,  but  she  would  not 
consent  to  surrender  him.  Re  Zilley's  Es- 
tate, 98  Wis.  428,  74  N.  W.  126,  40:  579 
Child  bom  after  divorce. 

116.  An  adjudication  settling  the  rights  of 
parties  as  they  exist  at  the  time  of  divorce, 
and  giving  alimony  to  the  wife,  does  not 
affect  their  rights  so  far  as  concerns  the 
custody  or  support  of  a  child  then  unborn. 
Ramsey  v.  Ramsey,  121  Ind.  215,  23  N.  E.  69, 

6:  682 

117.  A  divorced  wife  who  voluntarily  re- 
tains the  custody  of  a  child  born  after  the 
divorce  was  granted,  and  maintains  and 
supports  the  child  without  any  request  from 
the  father,  or  any  refusal  on  his  part  to 
support  the  child,  cannot  maintain  an  action 
against  him  to  recover  compensation  for 
such  support.  Id. 
Change  of  decree  as  to  custody. 

118.  Under  a  statute  permitting  changes 
in  divorce  decrees  in  respect  to  disposal  of 
children  or  distribution  of  property,  such 
changes  can  only  be  made  in  the  action  in 
which  the  divorce  is  granted.  Karren  v.  Kar- 
ren,  25  Utah,  87,  69  Pac.  465,  60:  294 

119.  A  decree  fixing  the  custody  of  a  child 
upon  decree  in  a  divorce  suit  is  final  on  the 
conditions  then  existing,  and  should  not  be 
changed  afterwards,  unless  on  conditions  al- 
tered since  the  decree,  or  on  material  facts 
existing  but  then  unknown,  and  for  the  wel- 
fare of  the  dhild.  Cariens  v.  Cariens,  50  W. 
Va.  113,  40  S.  E.  335,  55:  930 


Vin.  Agreements  for  Support  and  Mainte- 
nance. 

a.  In  General. 

Effect  of,  on  Alimony  in  Case  of  Subsequent 

Divorce,  see  supra,  77,  78,  87. 
Effect  on  Right  to  Inherit,  see  Descent  and 

Distribution,  54,  55. 
Effect  of,  on  Dower,  see  Dower,  45-48. 
Return  of  Money  Paid  on,  as  Prerequisite  to 

Suit   for  Dower  Right,   see  Action  or 

Suit,  28. 
Trustee's    Right    to     Maintain    Action    on 

Agreement,  see  Parties,  47. 
For  Editorial  Notes,  see  infra,  IX.  §  7. 

120.  A  man  who,  in  contemplation  of  a 
separation  from  his  wife,  entered  into  an 
agreement  by  which  a  certain  amount  was 
placed  in  trust  for  her  support,  which,  under 
the  agreement,  was  all  that  she  was  to  be 
entitled  to,  cannot  maintain  through  the 
trustee  a  bill  in  equity  to  enjoin  (her  from 
prosecuting  an  action  in  the  probate  court 
for  separate  support,  where  he  will  be  able 
to  avail  himself  as  fully  of  his  agreement 
in  that  court  as  he  could  in  a  court  of  equity. 
Bailey  v.  Dillon,  186  Mass.  244,  71  N.  E. 
538,  66:  427 

Enforcement  of. 

Conflict  of  Laws  as  to,  see  Conflict  of  Laws, 
144,  145. 


121.  Contracts  between  huslband  and  wife 
for  separate  support,  which  are  formal 
enough  to  be  enforced  in  equity  before  di- 
vorce, may  be  enforced  at  law  after  divorce. 
Carey  v.  Mackey,  82  Me.  516,  20  Atl.  84, 

9:  113 
Effect  of  subsequent  divorce. 
See  also  supra,  78 ;  infra,  125. 
For  Editorial  Notes,  see  infra,  IX.  §  1. 

122.  The  provision  for  an  annual  payment 
of  money  for  the  maintenance  of  the  wife, 
in  an  agreement  for  separation,  is  not  af- 
fected by  a  subsequent  decree  of  divorce  in 
her  favor,  which  makes  no  provision  for  ali- 
mony. Clark  V.  Fosdick,  118  N.  Y.  7,  23  N. 
E.  136,  6:  132 

123.  A  decree  of  divorce  which  is  silent 
upon  the  subject  does  not,  of  its  own  force, 
terminate  a  prior  agreement  between  the 
parties  for  a  separate  support.  Carey  v. 
Mackey,  82  Me.  516,  20  Atl.  84,  9:  113 
Galusha  v.  Galusha,  116  N.  Y.  635,  ^  N.  E. 
1114,  6: 487 
Rescission  of. 

124.  A  wife  who  executed  articles  of  sep- 
aration between  herself  and  her  husband  un- 
der menace  is  entitled  to  have  them  rescind- 
ed, and  to  a  judgment  annulling  and  setting 
them  aside.  Bueter  v.  Bueter,  1  S.  D.  94, 
45  N.  W.  208,  8:  562 
As  to  support  of  child;  termination  of. 

125.  An  agreement  to  provide  for  the  best 
interest^  of  a  child,  made  by  parents  who 
have  separated  and  aTe  to  live  in  different 
jurisdictions,  by  which  the  husband  agrees 
to  pay  certain  sums  for  the  maintenance 
of  the  child  and  a  certain  allowance  of  ali- 
mony to  the  wife,  with  a  provision  that  a 
divorce  or  second  marriage  of  either  party 
shall  terminate  the  agreement, — is  termi- 
nated and  mutually  abandoned  when  the  hus- 
band obtaiUiS  judgment  for  absolute  divorce 
in  one  state,  and  the  wife  obtains  a  limited 
divorce  in  another  state.  Atherton  v.  Ath- 
erton,  155  N.  Y.  129,  49  N.  E.  933,       40:  291 

b.  Validity  of. 

126.  A  man  and  wife  cannot  make  a  valid 
contract  for  a  separation.  Foote  v.  Nicker- 
son,  70  N.  H.  496,  48  Atl.  1088,  54:  554 

127.  The  statutes  extending  the  power  of 
husband  and  wife  to  contract  as  to  property 
matters  gives  them  no  authority  to  enter  in- 
to an  agreement  renouncing  marital  rights. 

128.  A  contract  by  which  a  husband  agrees 
to  pay  certain  moneys  to  his  wife  in  dis- 
chaj"ge  of  his  obligation  to  support  her  is  not 
against  public  policy,  when  made,  not  for  th« 
purpose  of  a  voluntary  separation,  but  after 
a  separation  has  actually  occurred  on  ac- 
count of  the  misconduct  of  one  of  the  par- 
ties which  justified  it.  Henderson  v.  Hen- 
derson, 37  Or.  141,  60  Pac.  597,  48:  766 

129.  An  agreement  between  a  husband  and 
wife  who  have  separated,  or  who  are  in  con- 
templation of  an  immediate  separation,  for 
a  separate  support  for  the  wife,  is  valid,  at 
least  where  there  is  good  cause  for  the  sep- 
aration and  the  contract  therefor  does  not 


DIVORCE  AND  SEPARATION,  IX.  (Ed.  Notes.) 


1049 


•ffend  public  policy.     Carey  v.   Mackey,  82 
Me.  516,  20  Atl.  84,  9:113 

.  130.  A  bond  by  a  wife  to  her  husband, 
with  surety,  to  secure  the  husband  against 
claims  for  her  future  support,  executed  while 
living  apart  and  on  settlement  of  a  suit  for 
separate  maintenance,  is  not  void  as  against 
public  policy.  Winn  v.  Sanford,  148  Mass. 
39,  18  N.  E.  677,  1:  512 

131.  If  covenants  for  separation  and 
touching  property  rights  occur  in  the  same 
agreement  between  husband  and  wife,  the 
legal  part  of  the  agreement  touching  the 
property  rights  will  be  upheld  if  the  prom- 
ises are  separate  and  the  consideration  is 
divisible;  but  if  the  consideration  is  entire 
the  whole  must  fail.  Foote  v.  Ni^kerson,  70 
N.  PI.  496,  48  Atl.  1088,  54:  554 
Through  medium  of  trustee. 

132.  A  valid  agreement  for  an  immediate 
separation  between  husband  and  wife,  and 
for  a  separate  allowance  for  her  support, 
may  be  made  through  the  medium  of  a  trus- 
tee. Clark  v.  Fosdick,  118  N.  Y.  7,  23  N.  E. 
136,  6:  132 

133.  A  husband  and  wife  may,  in  contem- 
plation of  a  separation,  enter  into  an  agree- 
ment, through  the  intervention  of  a  trustee, 
as  to  the  wife's  support,  which,  during  the 
continuance  of  the  separation,  the  husband 
may  have  specifically  enforced  if  it  is  fair 
and  reasonable  and  free  from  fraud  and  con- 
cealment. Bailey  v.  Dillon,  186  Mass.  244, 
71  N.  E.  538,  66:  427 
To  aid  divorce. 

134.  An  agreement  made  by  a  man  on  the 
day  after  obtaining  a  decree  of  divorce,  to 
pay  his  former  wife  a  monthly  sum  during 
her  life  if  she  will  not  apply  for  a  new  trial, 
18  against  public  policy  and  void  as  tending 
to  promote  and  facilitate  a  divorce.  Blank 
V.  Nohl,  112  Mo.  159,  20  S.  W.  477,  18:  350 

135.  A  contract  for  a  valuable  considera- 
tion not  to  apply  for  a  new  trial,  made  by 
one  against  whom  a  decree  of  divorce  has 
been  entered  after  a  trial  at  which  she  whol- 
ly abandoned  the  position  assumed  in  her 
pleadings  and  made  no  defense,  is,  on  its 
face,  collusive  and  a  fraud  on  the  law.    Id. 


IX.  Editorial  Notes. 

As  to  Annulment  of  Marriage,  see  Marriage, 
V.  §  7. 

As  to  Separation  Agreement,  see  Husband 
and  Wife,  V.  §  17.  , 

As  to  Remarriage  after  Divorce,  see  Mar- 
riage, V.  §  5. 

a.  In  General. 

§  I.  Generally. 

Collusive  agreement  in  aid  of  divorce  pro- 
ceedings.   4:  313.* 

Maxim  raising  implied  exception  in  statute 
as  to  divorce.     25:  565. 

Validity  of  legislative  divorce.    18:  95. 

Pleadings  and  proof  in  action  on  ground  of 
drunkenness.    34:  452. 

Actions  on  behalf  of  insane  persons.  34: 
166. 


Effect  of  divorce  on  articles  of  separation. 

6:  488.* 
§  2.  Compromise. 

Validity  of  contract  between  husband  and 
wife  to  compromise  pend- 
ing   or    contemplated    di- 
vorce suit.     60:  406. 
When  the  agreement  is  that  the  parties 
shall    live    separate.      60: 
407. 
Where  the  agreement  is  that  the  par- 
ties shall  resume  marital 
relations.     60:  409. 
When  specific  performance  will  be  de- 
creed.   60:  412. 
When  inadequate  as  against  creditors 
of  insolvent  husband.    60: 
413. 
English  decisions  on  application  to  rein- 
state divorce  suit.  60:  413. 
Necessity  of  third  party.    60:  415. 

Third  party  unnecessary.     60:  415. 
Third  party  necessary.    60:  416. 
Third  party,  but  necessity  for,  not 

stated.     60:  417. 
Contract  held  valid  without  third 
party;  but  absence  of,  not 
mentioned.     60:  417. 
Agreement     without     third     party 
void;  but  not  for  that  rea- 
son.    60:  417. 
Third  party  to  contract;  but  con- 
tract  void  for  other  rea- 
son.   60:417. 
Cases  in  which  it  does  not  appear 
whether  there  was,  or  was 
not,    a    third    party.     60: 
417. 
Other  cases.     60:  417. 
Conclusion.    60:  418. 

b.  Jurisdiction. 

§  3.  Generally.  ' 

Of  chancery  to  decree  nullity  or  dissolution 

of  marriage.    25:  800. 
Suits  for  same  cause  in  different  jurisdic- 
tions.   59:  187. 
Injunction    against    divorce    suit    in    other 

state.    21:  75. 

Conclusiveness  of  judgment  of  divorce  under 

conflict  of  laws.     11:  444.* 

§  4.  Of  person  or  res;  constructive  service. 

Validity  of  decree  of  divorce  obtained  on 

publication  or  service  out 

of  state  where  defendant 

did  not  appear,  generally. 

19:  814. 

When  defendant  confined  in  prison  or 

asylum.     19:  816. 
When    defendant    a    resident    of    state 
where      decree     rendered. 
59:  162. 
Domicil  of  wife  as  defendant.     16: 
497;   59:  163. 
When  defendant  a  nonresident.    59:  165. 
Validity  and  effect  on  statutes,  of 
decree  in  state  where  ren- 
dered.    59:  165. 
Validity,  and  effect  on   status,  of 
decree    in     other     states. 
59:  167. 


1050 


DIVORCE  AND  SEPARATION,  IX.  (Ed.  Notes.) 


Opening,  setting  aside,  and  vacating  de- 
cree obtained  by  publica- 
tion. 19:  817. 
Collateral  attack  in  same  state  on  de- 
cree rendered  on  publica- 
tion. 19:  819. 
English  cases.     19:  819. 

Dispensing  with  personal  service  of 
citation  in  English  courts. 
19:  819. 
As  to  the   return  on   the  citation. 

19:  820. 
As    to   jurisdiction    on    publication 
service     where      marriage 
and  domicil  of  the  husband 
is  abroad.     19 :  820. 
As  to  annulling  marriage  on  publi- 
cation  where  the   defend- 
ant   is    absent    from    the 
country.    19:  820. 
As  to  the  effect  in  England  of  a 
divorce   abroad,   on   publi- 
cation service.     19:  821. 
Where    the    respondent    is    impris- 
oned.    19:  821. 
§  5.  Of  subject-matter. 
Domicil  as  basis  of  jurisdiction.     59:  142. 
General  rule.     59:  142. 
When  neither  party  domiciled  or  per- 
manently  residing   at   fo- 
rum.   59:143. 
Domicil  of  wife  for  purpose  of  bringing 

suit.     16:  497;*   59:  146. 
Domicil   or    residence    of   defendant   as 
condition  of  relief  on  cross 
bill.    59:  149. 
Place    of    marriage   and   of   original    matri- 
monial domicil.     59:  151. 
Place  of  marital  offense.     59:  154. 
Time  of  marital  offense  relatively  to  acqui- 
sition of  domicil  as  forum. 
59:  155. 
§  6.  Effect  of  appearance  by  nonresident. 
Appearance,  generally.    23:  287. 
Fraud  and  collusion.     23:  288. 
§  654.  Tmpeaching  decree  granted  in  other 

state. 
On  jurisdictional  facts.     59:  183. 
On  the  merits;  fraud.     59:  186. 

0.  Ground;  defenses. 

§  7.  Grounds,  generally. 

See  also  infra,  IX.  §§  9-11. 

What  law  determines  the  right  to  a  divorce. 
59:  141. 

Constitutionality  of  retroactive  statute  cre- 
ating new  grounds.  52: 
937. 

Morphinism  as.     39:  264. 

Refusal  of  marital  intercourse  as.     14:  685. 

Cruelty  as.    6:  187.* 

Sufficiency  of  reasonable  apprehension  of  in- 
jury as.     6:  187. 

Antenuptial  pregnancv  or  unchastity  as. 
18:  375. 

On  ground  of  desertion.     9:  696.* 

§  8.  Defenses,  generally. 

See  also  infra.  IX.  §§  9-11. 

Condonation.     6:  548;*  9:  696.* 

Connivance.     12:  524.* 

Articles  of  separation  as  a  bar  to  divorce, 
6:  487.* 


§  9.  Effect  of  conviction  and  sentence  upon 

marriage  relation. 
In  general.    31:  515. 
Necessity  of  a  conviction.    31:  518. 
Effect  of  an  appeal  from  conviction.    31 :  518. 
Effect  of  commutation  of  the  sentence  or  of 

a  pardon.     31:  519. 
Conviction  in  another  state.     31:  519. 
Retroactive  effect  of  statute.    31:  520. 
Allegation  of  infamous  crime.     31 :  520. 
Where  crime  is  prior  to  marriage.     31:  520. 
Conviction  as  desertion.     31 :  520. 
Classed  with  cruelty.    31:  521. 
Conviction  as  a  bar  to  divorce  by  the  party 

convicted.     31:  521. 
§  10.  Drunkenness  as  affecting  divorce. 
Drunkenness  as  a  groimd  for  divorce.     34: 
449. 
Provisions  for  34:  449. 
What  constitutes  drunkenness.    34:  449. 
Degree  of  drunkenness  authorizing  di- 
vorce.    34:  450. 
Pleadings  and  proof.     .34:  452. 
Defenses.     34:  453. 
Incidents  and  effects.    34:  454. 
Drunkenness  as  affecting  cruel  and  inhuman 
treatment.     34:  454. 
Drunkenness  as  cruelty.     34:  454. 
Drunkenness    connected    with    cruelty. 

34:  454.  ' 

Drunkenness    as    evidence    of    cruelty. 
34:  457. 
Drunkenness  as  affecting  desertion.     34:  457. 
Drunkenness   as   affecting  validity   of   mar- 
riage.    34:  87. 
§11.  Divorce    when    husband    or    wife    be- 
comes insane. 
Insanity  as  a  ground  for  divorce.     34:  161. 
Insanity  as  affecting  adultery.     34:  162. 
As  a  ground  for  divorce.     34:  162. 
As  a  defense  to  a  claim   for  alimony, 
34:  164. 
Insanity  as  affecting  abandonment  and  fail- 
ure to  support.     34:  164. 
Insanity  as  affecting  cruelty.    34:  164. 
The  defense.    34:166. 

Actions   on  behalf   of   insane   persons.     34: 
166. 

d.  Attack  upon  decree. 

§12.  Generally. 

Right  of  third  person  to  have  decree  of  di- 
vorce set  aside.    54:  758. 
§  13.  Impeaching   decree   granted   in    other 

state. 
On  jurisdictional  facts.     59:  183. 
On  the  merits;   fraud.     59:  186. 
§  14.  By  party  obtaining  or  consenting. 
Direct   attack   by   part}'   obtaining   it.     60: 
294. 
In  general.     60:  294. 
Attempt  by   wife  to  vacate  decree  ob- 
tained in  her  name  with- 
out her  consent.    60:  296. 
Application  by  both  parties  to  set  aside  de- 
cree.    60:  296. 
Direct  attack  by  party  who  has  consented 
to,  or  colluded  in,  its  pro- 
curement.    60:  296. 
Consent.     60:  296. 
Collusion.    60:  297. 


DIVORCE  AND  SEPAHATIOl^,  IX.  (Ed.  Notes.)— DOCKING. 


10.51 


Collateral  attack.    60:  301. 

By   party  obtaining.     60:  301. 
By  party  who  lias  consented  to,  or  col- 
luded in,  its  procurement. 
60:  305. 
§  14J/2.  After  death  of  one  or  both  of  the 

parties. 
Attack  by  surviving  party.     57:  683. 

In  direct  proceeding  to  set  aside  or  va- 
cate decree.    57:  583. 
Appeal.     57 :  583. 
Motion    or    petition    filed    in    the 

original  cause.     57:  584. 
Writ  of  error.    57 :  587. 
New  suit.    57:  588. 
In  collateral  proceeding.     57:  593. 
Attack  by  stranger  to  the  decree.     57:  599. 
In  direct  proceeding.     57:  599. 
In  collateral  proceeding.     57:  600. 
Death  of  one  party  pending  appeal.    57 :  603. 

e.  Custody  and  support  of  children. 

§  15.  Generally. 

As  to  Custody  and  Support  of  Children,  Gen- 
erally, see  Infants.  IV.  § 
3. 

Support  of  children  after  divorce.     6:  682.* 

Removal  of  child  from  jurisdiction  of  court 
during  divorce  proceed- 
ings.    58:  939. 

Custody  of  children  when  interstate  or  in- 
ternational elements  in- 
volved.    59:  177. 

f.  Alimony. 

§  16.  Generally. 

Allowance  of.     1:  320:*  3:  349.* 

Enforcing  award  of,  in  another  state.  59; 
178. 

Effect  of  wife's  subsequent  adultery  upon 
an  allowance  of  alimony. 
19:  811. 

Enforcing  payment  of  alimony  as  imprison- 
ment for  debt.    34:  665. 

Judgment  for,  as  a  fixed  liability  for  pur- 
poses of  bankruptcy  act. 
54:  369. 

§  17.  Award  of,  upon  constructive  service. 

Generally.     16:  234. 

Against  resident.    59:  178. 

Agains.t  nonresident.    50:  583;  59:  178. 

§  18.  Suit  for,  after  decree  of  divorce. 

Generally.     21 :  677. 

Limitations  and  exceptions.     21:  678. 

English  cases.     21 :  679. 

After  legislative  divorce.     21:  679. 

Effect  of  divorce  granted  in  another  state  or 
country.    59:  180. 

§  19.  Allowance  to  husband  from  property 
held  by  wife. 

Permanent  allowance.     34:  110. 

Statutes.     .34:  113. 

Alimony  pendente  life.     34:  115. 

English  cases.     34:  115. 

§  20.  Effect  of  second  marriage  upon  obliga- 
tion to  pay. 

iJenerally.     62:  974. 

Remarriage  of  husband.    62:  975. 

Remarriage  of  wife.     62:  975. 


§21.  Contempt  proceedings  to  compel  pay- 
ment of. 
Doctrine  of  contempt.     24:  433. 
Constitutionality  of  contempt.     24:  434. 
When  contempt  proceedings  may  be  resorted 

to.    24:  435. 
Evidence  in  support  of.     24:  436. 
Necessity  of  service  of  order.    24:  436. 
Necessity  of  demand  of  payment.     24:  437. 
Necessity  of  notice  of  application.     24:  437. 
Right  of  defendant  to  be  heard.    24:  437. 
llxcuses  for  nonpayment.     24:  437. 

Inability  to  pay.     24:  437. 
Commitment  refused.     24:  438. 
Application  for  relief.     24:  438. 
Power  of  court  to  inquire  into.     24:  439. 
State    statutes    and    decisions    thereunder. 

24:  439. 
English  decisions.     24:  442. 

g.  Effect  on  property  rights. 

§•  22.  Generally. 

Effect  of  absolute  divorce.     11:  790.* 

Divorce  as  affecting  wife's  right  to  insuranca 
upon  her  husband's  life, 
50:552. 

Effect  of  divorce  to  revoke  gift  by  will.  69: 
940. 

Effect  of  lis  pendens  in  divorce  suit*.  2: 
615.* 

Effect  of  divorce  as  a  bar  to  claim  for  dower. 
11:  700.* 

Effect  of  divorce  on  property  held  by  the  en- 
tireties.   '30:  333. 

Effect  of  divorce  on  homestead.    23:  239. 

Effect  of  divorce  upon  conveyance  by  hus- 
band to  wife.     69:  379. 

Effect  of  divorce  in  another  state  upon  prop- 
erty rights,  generally.  59: 
183. 

Effect  upon  dower  of  divorce  obtained  by 
husband  in  another  state. 
59:  181. 

Effect  upon  dower  of  divorce  obtained  by 
wife  in  another  state. 
59:  182. 


DOCKET. 

Change  from  Law  to  Equity,  see  Equity,  II. 

♦-•-♦ 

DOCKET  FEE. 
Right  of  Clerk  to,  see  Clerks,  7,  8. 


DOCKING. 

As  Cruelty,  see  Animals,  69,  70. 

Class  Legislation  as  to,  see  Constitutional 

Law,  362. 
Prohibition  against,  see  Constitutional  Law, 

776. 
Police  Power  as  to,  see  Constitutional  Law, 

975. 


1052 


DOCKS— DOMICIL. 


DOCKS. 

Evidence  as  to  Condition  of,  see  Evidence, 

1947. 
Riparian  Rights  as  to,  see  Waters,  I.  c,  4,  c. 
Rights  on  Opening  Canals  for  Dockage,  see 

Waters,  30. 
See  also  Harbors;  Wharves. 


DOCTRINE. 


Of    Religious    Society,    see    Religious    So- 
cieties. 


DOCUMENTARY   EVIDENCE. 

As  Part  of  Record  on  Appeal,  see  Appeal 

and  Error,  177-180. 
In  General,  see  Evidence,  IV.;  XII.  h;  XIII. 

§§  37-45. 


DOCUMENTS. 


Production  of,  see  Discovery  and  Inspec- 
tion, 6-12. 

What  are,  see  Discovery  and  Inspection,  12. 

Notice  to  Produce,  see  Evidence,  FV.  s. 

Presumption  from  Failure  to  Produce,  see 
Evidence,  394,  395. 

Editorial  Notes. 

Incorporation    of    extrinsic    document    into 
will.     68:  353. 


DOGS. 

Loss  of  Right  to  Recover  for  Injury  to,  see 
Action   or  Suit,  38. 

Liability  for  Killing  of  or  Injury  to,  see 
Animals,  I.  b;  Railroads,  231-234;  Stat- 
utes, 484;  Street  Railways,  136-139; 
Trial,    135,    136. 

Liability  for  Injuries  by,  see  Animals,  I.  c. 
2. 

Property  Rights  in,  see  Animals,  3-5. 

Cruelty  to,  see  Animals,  66. 

Loss  of,  on  Train,  see  Carriers,  683. 

Delegation  of  Power  as  to,  see  Constitu- 
tional Law,  172. 

Privilege  of  Humane  Society  to  Keep, 
without  License,  see  Constitutional- 
Law,  470. 

Due  Process  as  to  Killing,  see  Constitution- 
al  Law,  911-913. 

Judicial  Notice  as  to,  see  Evidence,  129, 
167. 

Opinion  as  to  Value  of,  see  Evidence,  1335, 
1336. 

Evidence  of  Pedigree  of,  see  Evidence,  1476. 

Ordinance  for  Muzzling,  see  Municipal  Cor- 
porations, 67. 

Prohibition  against  Running  at  Large,  see 
Municipal  Corporations,  161,  162. 


City's  Liability  for  Reckless  Attempt  to 
Kill,  see  Municipal  Corporations,  478, 
479. 

Proximate  Cause  of  Injury  by,  see  Proxi- 
mate Cause,  130,  131. 

Tax  on,  see  Animals,  64;  Public  Moneys, 
51;    Taxes,  94. 

See  also  Bloodhounds. 

For  Editorial  Notes,  see  Animals,  in. 


DOMESTIC  RELATIONS. 

In  General,  see  Various  Particular  Sub- 
jects, such  as  Apprentice;  Guardian  and 
Ward;  Husband  and  Wife;  Infants; 
Parent  and  Child. 

Conflict  of  Laws  as  to,  see  Conflict  of 
Laws,  I.  c. 


DOMICIL. 

For  Purpose  of  Attachment,  see  Attach- 
ment, 12. 

For  Purposes  of  Divorce  Suit,  see  Divorce 
and  Separation,  11.  b. 

Residence  for  Purpose  of  Election,  see  Elec- 
tions,  I.  a. 

Place  of,  for  Purposes  of  Eligibility  to  Ad- 
minister Estate,  see  Executors  and  Ad- 
ministrators, 10. 

For  Purpose  of  Homestead,  see  Homestead, 
41. 

Of  Married  Woman,  see  Courts,  344c,  344d. 

Law  Governing  Wife's  Right  to  Acquire 
Separate  Domicil,  see  Conflict  of  Laws, 
140. 

Of  Infant,  see  Conflict  of  Laws,  304;  Guar- 
dian and  Ward,  2. 

Power  of  Infant  to  Change,  see  Infants,  52. 

Of  Senator,  see  Limitation  of  Actions,  154. 

For  Purpose  of  Serving  Writ,  see  Writ  and 
Process,  12. 

1.  A  change  of  residence,  clearly  mani- 
fested as  matter  of  law  by  acts,  cannot  be 
defeated  by  a  subsequent  declaration  of  the 
person  that  he  did  not  intend  his  acts  to 
have  that  effect.  (Merrimon,  J.,  dissents.) 
Lee  V.  Moseley,  101  N.  C.  311,  7  S.  E.  874, 

2:  106 

2.  The  temporary  absence  from  the  state 
of  one  domiciled  there  will  not  be  held  a 
change  of  residence,  unless  to  the  factum 
of  residence  elsewhere  be  added  the  animus 
manendi;  for  a  domicil,  having  once  been 
acquired,  continues  until  a  new  one  is  act- 
uallv  acquired  animo  et  facto.  Watkinson 
V.  Watkinson  (N.  J.  Err.  &  App.)  68  N.  J. 
Eq.  632.  60  Atl.  931.  69:  397 
For  jurisdictional  purposes. 

3.  Where  a  man  of  mental  capacity  to 
change  his  domicil  in  good  faith  removed 
his  residence  to  another  state  while  pro- 
ceedings for  the  appointment  of  a  guardian 
over  him  were  pending,  and  continued  his 
residence  until  death  in  the  state  to  which 
he  removed,  which  residence  was  assented 
to  by  a  guardian  appointed  in  the  pending 


DONA.TION— DOUBLE  COMMISSIONS. 


1053 


proceedings  after  his  removal,  he  is  such  a 
resident  of  the  latter  state  that  its  courts 
have  original  jurisdiction  of  the  probate  of 
his  will.  Talbot  v.  Chamberlain,  149  Mass. 
57,  20  N.  E.  305,  3:254 

4.  For  jurisdictional  purposes  a  legal 
domicil  once  existing  continues  until  an- 
other is  acquired  elsewhere.  Ayer  v. 
Weeks,  65  N.  H.  248,  18  Atl.  1108,        6:  716 

5.  Domicil  or  residence,  to  give  jurisdic- 
tion to  the  probate  court  in  insolvency  pro- 
ceedings, is  not  lost  by  departure  from  the 
state,  until  another  is  gained.  Id. 

6.  Placing  her  husband  in  a  home  for  in- 
curables, with  his  expenses  for  life  and  for 
burial  paid,  does  not  entitle  a  woman  to 
acquire  a  separate  domicil  whicj^  will  give 
jurisdiction  to  a  probate  court,  notwith- 
standing a  statutory  provision  that  in  ac- 
tions for  divorce  the  presumption  of  law 
that  the  domicil  of  the  husband  is  that  of 
the  wife  does  not  apply.  Re  Wickes,  128 
Cal.  270,  60  Pac.  867,  49:  138 
Of  child  of  divorced  woman. 

7.  When  a  divorce  has  been  granted  to 
the  wife,  and  unrestricted  custody  of  the 
minor  child  of  the  marriage  given  her  in  the 
decree,  her  own  domicil  establishes  that  of 
the  child.  Fox  v.  Hicks,  81  Minn.  197,  83 
N.  W.  538,  50:  663 
In  prison. 

8.  The  constitutional  provision  against 
gaining  a  residence  while  confined  in  a  pub- 
lic prison  applies  to  a  person  committed  to 
such  prison,  even  if  the  commitment  was 
irregular  or  illegal  and  was  made  upon  his 
own  application,  notwithstanding  the  fact 
that  he  had  no  family  and  no  home,  and 
made  the  application  for  commitment  to 
get  a  home  and  work  in  the  prison.  Peo- 
ple V.  Cady,  143  N.  Y.  100,  37  N.  E.  673, 

25:  399 
Editorial  Notes. 

Domicil  as  fixing  the  national  character.  2: 
203.* 

How  domicil  determined.     13:  161.* 

What  constitutes  domicil;  change  of.  2: 
203.* 

Domicil  of  consul.     45:  587. 

Acquiring  residence  as  a  voter  while  at- 
tending school  or  public 
institution.     23:215. 

Domicil  as  aflfecting  governing  law  of  matri- 
monial capacity.     57:  161. 

Domicil  as  aflfecting  capacity  of  married 
woman  to  contract.  57: 
513. 

Domicil  as  aflfecting  governing  law  of  matri- 
monial property.     57:  353. 

Domicil  as  aflfecting  governing  law  of  chat- 
tel mortgage.  64:  363, 
366. 

Domicil  as  aflfecting  governing  law  of  as- 
signment for  creditors. 
65:365. 

Domicil  as  basis  of  lurisdiction  of  divorce. 
59:142. 

Domicil  of  wife  for  purposes  of  divorce. 
16:  497;    59:  146. 

Garnishment,  at  domicil  of  debtor,  of  debt 
diie  to  nonresident.  67: 
209. 


Domicil  of  decedent  as  aflfecting  governing 
law  with  respect  to  legiti- 
macy.    65:  177. 

Xonresidence  as  aflfecting  right  to  maintain 
statutory  action  for  death. 
54:  934. 

Residence  as  aflfecting  governing  law  in  ac- 
tion for  death  or  bodily 
injury.     56:  218. 

Residence  as  a  qualification  of  grand  juror. 
28:i96. 

Discrimination  between  resident  and  non- 
resident creditors  of  in- 
solvent.    65:  354,  368. 


DONATION. 


Recovery  Back  for  Failure  of  Consideration, 

see  Assumpsit,  9. 
Recovering  Back   on  Removal   of   Business 

by  Donee,  see  Contracts,  830. 
Of  Property  of  College,  see  Colleges,  5. 
By  Counties,  see  Bonds,  107. 
Of  Public  Money,  see  Public  Moneys. 
For  State  Institutions,  see  Taxes,  28. 
To  Private  Individual,  see  Taxes,  78,  79,  86. 
See  also  Gift. 

Editorial  Notes. 

To  corporation  of  shares  of  its  own  stock. 

18:  255. 
Forfeiture  of.     13:698. 


DONGAN  CHARTER. 

Grant  of  Tideways  by,  see  Waters,  146. 

•-•-• 

DONKEY   ENGINE. 

Negligence  of   Engineer   of,   see   Proximate 
Cause,  73. 

♦-•-♦ 


DORMANCY. 


Of  Judgment,  see  Creditors'  Bill,  8;  Judg- 
ment, 401,  405. 

♦-•-» 


DORMANT  PARTNER. 

Who  is,  see  Judgment,  239. 

As  Party  in  Action,  see  Parties,  152. 

♦-•-♦ 


DORMITORIES. 


Exemption   of,   from   Taxation,   see   Taxes, 

299,   300. 

♦<-» 

DOUBLE  COMMISSIONS. 

Of  Executors,  see  Executors  and  Adminis- 
trators. 182. 


1054 


DOUBLE  DAMAGES— DOWER,  I.  a. 


DOUBLE   DAMAGES. 

Against  Justice  of  the  Peace,  see  Damages, 
280. 

When  Allowable  under  Pleading,  see  Plead- 
ing, 108.  • 


DOUBLE  TAX. 


By  Imposition  of  License  Tax,  see  License, 

49,   50. 
See  also  Taxes,  69,  72-75,  155-159,  172,  175, 
•  533. 


DOUBTFUL  TITLES. 

Specific   Enforcement   of   Contract  in   Case 
of,  see  Specific  Performance,  I.  e,  2. 


DOVES. 

Cruelty  in  Shooting,  see  Animals,  67,  68. 


DOWER. 

I.  Eight  to. 

a.  Nature  and  Extent. 

b.  In   What   Property. 

c.  How  Barred. 

II.  Rights   and   Remedies   of  Widow. 
Editorial   Notes. 


m 


Return   of  Amount   Paid   on   Separation  as 

Prerequisite  to  Action  to   Enforce,  see 

Action  or  Suit,  28. 
Adverse    Possession     against,    see    Adverse 

Possession,  I.  e. 
Apportionment   of   Annuity   Given   in   Lieu 

of,  see  Annuities,  5. 
Discrimination  against  Nonresident  Widow, 

see  Constitutional  Law,   382. 
As   to   Descent   or   Distribution   to   Widow, 

see  Descent  and  Distribution,  I.  e. 
Of  Nonresident,  see   Descent   and  Distribu- 
tion, 19. 
Effect   of,   on   Right   to   Distributive   Share, 

see  Descent  and  Distribution,  46. 
Estoppel    against    Claiming,    see    Estoppel, 

192,   244. 
Evidence  in  Action  for.  see  Evidence,  891. 
Conveyances   in    Fraud   of  Wife's   Right   of. 

see   Husband   and   Wife,   II.   j,   2;    and 

also  infra,  HI.  §  5. 
Considering     Release     of,     in     Determining 

Validity,  as  airainst  Creditors,  of  Con- 

vevance    to    Wife,    see    Husband    and 

Wife,   192. 
Modification    of    Foreclosure    Decree    as    to, 

see  Judgment,  79. 
Purchaser    from     Doweress     as     Tenant    at 

SufTerance.    see    Landlord    and    Tenant. 

46. 


As  Affecting  Order  of  Foreclosure  Sale,  see 

Mortgage,    184. 
Application  of  Payments  in  Exoneration  of, 

see  J:'ayment,  -±6. 
Allegations  as  to  Release  of,  see  Pleading, 

699. 
Disregarding  Void  Release  of,  see  Release, 

Effect  of  Dower  Right  on  Specific  Perform- 
ance,  see   Specific   Performance,   90-92. 

Transfer  Tax  on,  see  Taxes,  602. 

Question  for  Jury  as  to,  see  Trial,  214. 

Purchaser's  Right  to  Have  Dower  Set  off 
against  Purchase  Money,  see  Vendor 
and  Purchaser,  19. 

Election  to  Take,  as  Affecting  Distribution 
under  Will,  see  Wills,  III.  i,  and  also 
infra.  III.  §  7. 


I.  Right  to. 

a.  Nature    and    Extent. 

Year's   Support  to   Widow   of  Nonresident, 
see  Executors  and  Administrators,  175. 
For  Editorial  Notes,  see  infra,  III.  §§  1,  2. 

1.  The  contingent  right  of  the  wife  to 
dower  in  her  husband's  real  estate  is  prop- 
erty, the  value  of  which  can  be  ascertained 
by  reference  to  mortality  tables,  in  connec- 
tion with  the  state  of  health  and  constitu- 
tional vigor  of  both  wife  and  husband. 
Mandel  v.  McCTave,  46  Ohio  St.  407,  22  N. 
E.  290,  5:  519 
Gore  V.  Townsend,   105  N.  C.  228,  11  S.  E. 

160,  8:  443 

2.  The  law  at  the  time  of  the  husband's 
death  governs  the  wife's  right  of  dower,  as 
her  inchoate  right  is  not  a  vested  one. 
Hatcher  v.  Buford.  60  Ark..  169,  29  S.  W. 
641,  27:  507 
Priorities. 

For  Editorial  Notes,  see  infra,  III.  §  2. 

3.  Where  the  purchaser  of  the  equity  of 
redemption  in  lands  is  not  bound  to  pay  the 
mortgage  debt,  but  does  in  fact  pay  it  in 
aid  of  his  own  title  and  estate,  whereby  it 
is  discharged,  a  claim  of  dower  therein  by 
the  widow  of  the  mortgagor  is  subject  to 
a  just  contribution;  and  the  case  is  strong- 
er where  the  technical  payment  consists 
in  the  substitution  of  a  new  mortgage  in- 
tended to  operate  as,  and  take  the  place 
of,  the  old  one  in  respect  to  a  portion  of 
the  premises.  Everson  v.  McMullen,  113  N. 
Y.  293,  21  N.  E.  52.  4:  118 

4.  An  inchoate  right  of  dower  is  not  a 
lien  within  the  meaning  of  S.  C.  Gen.  Stat. 
§  170,  declaring  that  "taxes  shall  be  a  first 
lien."  and  therefore  is  not  made  by  that 
section  subordinate  to  the  lien  for  taxes. 
Shell  V.  Duncan.  31  S.  C.  547,  10  S.  E.  .3,30. 

5:  821 

5.  The  rights  of  a  surety  for  purchase 
money  of  real  estate,  who  is  compelled  to 
pay  the  same,  are,  in  reference  to  such  es- 
tate, superior  to  those  of  the  widow  of  the 
purchaser.  IJallew  v.  Roler,  124  Ind.  .557. 
•24  X.  F.  070.  0:  481 


b.  In  What  Property. 


In  Land  Taken  by  Right  of  Eminent  Do- 
main, see  Eminent  Domain,  287. 

In  Partnership  Real  Estate,  see  Partner- 
ship, 76,  85. 

For  Editorial  Notes,  see  infra.  III.  §  1. 

6.  A  woman  cannot  under  the  New  York 
statutes  enforce  dower  rights  in  land  pur- 
chased with  her  husband's  money  and  con- 
veyed to  a  third  person  who  has  contracted 
in  writing  to  permit  the  husband  to  receive 
all  the  benefit  of  and  have  full  control  over 
the  property.  Phelps  v.  Phelps,  143  N.  Y. 
197,  38  N.  E.  280,  25:  625 

7.  Tlie  equitable  interest  of  a  purcnaser 
in  land  wliich  by  his  direction  is,  conveyed 
to  a  third  person  under  an  invalid  naked 
trust,  which  by  provision  of  statute  "is 
deemed  a  direct  conveyance"  to  himself,  is 
subject  to  the  right  of  dower.  Stroup  v. 
Stroup,  140  Ind.  179,  39  N.  E.  864.      27:  523 

8.  A  donor  causa  mortis  remains  seised 
or  possessed  of  the  property  until  death, 
within  the  meaning  of  a  statute  giving 
dower  in  personal  property  of  which  he  dies 
seised.  Hatcher  v.  Buford,  60  Ark.  169,  29 
S.  V\.  641,  27:  507 

9.  The  dower  rights  of  a  woman  whose 
husband  was  seised  of  an  undivided  interest 
in  common  in  a  tract  of  land,  which  he  con- 
veyed by  deed  in  which  she  did  not  join, 
will,  after  voluntary  partition  in  kind 
among  the  tenants  in  common,  attach  to 
the  parcel  allotted  to  her  husband's  grantee, 
and  will  not  extend  to  his  former  interest 
in  the  whole  tract.  Glaffney  v.  JeflFeries, 
59  S.  C.  565,  38  S.  E.  216,  53:  918 

10.  A  widow  is  entitled  to  dower  in  the 
excess  naid  at  a  foreclosure  sale  after  her 
husband's  death,  although  the  decree  of  sale 
was  made  before  he  died.  Holden  v.  Dunn, 
144  111.  413,  33  N.  E.  413,  19:  481 

11.  The  inchoate  right  of  the  wife  of  a 
partner  in  the  real  estate  of  her  husband 
only  attaches  to  such  of  the  real  estate  as 
remains  in  specie,  unconverted,  after  the 
partnership  is  terminated  by  judgment  or 
agreement,  and  its  affairs  completely  wound 
up  and  ended.  Woodward-Holmes  Co.  v. 
Nudd,  58  Minn.  236,  59  N.  W.  1010,    27:  340 

12.  The  right  of  dower  extends  to  a  share 
of  the  proceeds  of  mines  although  not 
opened  imtil  after  the  husband's  death,  where 
they  are  opened  on  lands  held  only  for  min- 
ing purposes  and  available  only  for  the 
minerals,  and  the  statutes  give  to  the  widow 
the  "use  during  her  natural  life  of  one  third 
of  all  the  lands  whereof  her  husband  was 
seised'  during  marriage.  Seager  v.  McCabe, 
92  Mich.  186,  52  N.  W.  299,  16:  247 

13.  A  widow's  homestead  right  in  certain 
premises  prevents  the  seisin  of  an  heir,  and 
therefore  excludes  any  dower  right  of  his 
widow  therein  upon  his  death  during  the 
continuance  of  the  homestead  right.  Dud- 
ley V.  Dudley,  76  Wis.  507,  45  N.  W.  602, 

8:  814 

14.  Upon  full  payment  of  the  amount  bid 
for  lands  at  a  partition  sale,  the  parties  to 
the  partition  proceedings  stand  seised  of  an 
estate  of  inheritance  to  the  use  of  the  pur- 


DOWER,  I.  b,  c.  1055 

chaser,  of  which  his  wife  is  dowable  under 
Mo.  Rev.  Stat.  1879,  §  2186,  although  his  in- 
terest therein  is  sold  on  execution  before  he 
receives  his  deed,  and  he  never  goes  into 
possession  of  the  property.  Davis  v.  Green, 
102  Mo.  170,  14  S.  W.  876,  11:  90 


c.  How  Barred. 

Consideration  t©  Support  Antenuptial  Con- 
tract for  Release  of  Dower,  see  Con- 
tracts, 84. 

Effect  of  Mistake  on  Release  of  Dower,  see 
Contracts,  87. 

Burden  of  Proof  as  to,  see  Evidence,  224. 

Effect  of  Election  to  Take  under  Will,  see 
Wills,  III.  i. 

For  Editorial  Notes,  see  infra.  III.  §§  3-6. 

By  dedication  of  land  to  public  use. 
For  Editorial  Notes,  see  infra.  III.  §  6. 

15.  An  inchoate  right  of  dower  is  de- 
stroyed by  a  voluntary  conveyance  executed 
by  the  husband  alone,  without  payment  of 
any  consideration,  of  a  right  of  way  to"  a 
railroad  company  to  be  used  only  for  rail- 
road purposes,  as  this  constitutes  a  dedica- 
tion of  the  land  to  a  public  use.  Venable  v. 
Wabash  W.  R.  Co.  112  Mo.  103,  20  S.  W. 
493,  18:  68 
By  taking  lease. 

16.  A  man  entitled  to  dower  in  his  wife's 
lands,  which  has  not  been  assigned,  is  es- 
topped, by  taking  a  lease  from  the  owner 
of  the  fee,  to  claim  dower  in  the  land  so  far 
as  it  is  covered  by  the  lease.  Heisen  v. 
Heisen,  145  111.  658,  34  N.  E.  597,  21 :  434 
By  conveyance. 

Conveyance  or  Release  by  Widow,  see  infra, 

64-68. 
See  also  supra,  15. 

17.  On  a  conveyance  in  fee  simple  to  a 
married  woman  of  land  purchased  by  a 
third  person  on  execution  against  her  hus- 
band, an  inchoate  right  of  dower  therein 
becomes  merged  in  the  fee;  and,  if  she  con- 
veys the  land,  she  cannot  claim  dower  there- 
in after  the  death  of  her  husband.  You- 
mans  v.  Wagener,  30  S.'  C.  302,  9  S.  E.  106. 

3:  447 

18.  A  widow  cannot  be  compelled  to  re- 
lease her  dower  in  lands  sold  by  her  hus- 
band bv  a  contract  which  she  did  not 
sign.  Sloan  v.  Williams,  138  111.  43,  27  N. 
E.  531,  12:  496 

19.  A  wife's  inchoate  right  of  dower  may 
be  released  by  her  husband  on  his  con- 
veyance of  the  land,  where  she  has  given 
him  a  power  of  attorney  under  N.  Y.  Laws 
1878.  chap.  300,  authorizing  him  to  convey 
for  her  and  in  her  name  and  as  her  act, 
and  to  sign,  seal,  execute,  acknowledge, 
and  deliver  all  necessary  releases  of  dower 
and  thirds.  Wronkow  v.  Oakley,  133  N.  Y. 
505,  31  N.  E.  521,  16:  209 

20.  An  actual  sale  and  conveyance, 
thousrh  made  for  the  purpose  of  defeating 
the  dfower  of  the  vendor's  wife,  will  be  up- 
held against  her  claim  after  his  death,  under 
a  statute  giving  dower  only  in  lands  of 
which  the  husband  dies  seised  and  pos- 
sessed; but  it  is  otherwise  with  a  mere 
colorable  sale  not  intended  to  be  operative 


1056 


DOWER,  I.  c. 


except  as  a  means  of  dividing  the  lands 
among  the  vendor's  children  after  his  death, 
while  he  is  to  remain  the  real  owner  dur- 
ing life.  Flowers  v.  Flowers,  89  Qa.  632, 
15  S.  E.  834,  18:  75 

21.  A  conveyance  by  a  man  of  his  real 
estate  during  the  period  in  which  the  com- 
mon-law right  of  married  women  to  dower 
was  Suspended  barred  all  claim  of  his  wife 
thereon,  although  she  did  not  join  in  the 
conveyance.  Odom  v.  Riddick,  104  N.  C. 
515,  10  S.  E.  609,  7:  118 

22.  A  sale  by  a  man  of  the  undivided  in- 
terest which  he  holds  in  common  dn  a  tract 
of  land,  followed  by  a  partition  by  the 
tenants  in  common  in  kind,  will  not  bar 
the  dower  rights  of  his  wife,  who  did  not 
join  in  the  deed.  GaflFney  v.  JeflFeries,  59 
S.  C.  565,  38  S.  E.  216,  53:918 

23.  The  dower  right  of  a  married  woman 
is  not  barred  by  a  deed  signed  by  herself 
and  a  court  commissioner  conveying  her 
husband's  real  estate,  and  to  which  he  is 
not  a  party,  under  a  statute  providing  for 
the  barring  of  such  right  "when  a  husband 
and  his  wife"  have  signed  a  writing  purport- 
ing to  convey  his  real  estate.  Lewis  v. 
Apperson,  103  Va.  624,  49  S.  E.  978,  68:  867 
By  mortgage,  or  foreclosure  thereof. 

See  also  supra,  3,  10;  infra,  48;   Mortgage, 
154. 

24.  An  inchoate  right  of  dower  of  a  wo- 
man who  has  joined  in  a  mortgage  of  her 
husband's  premises  can  be  devested  by  rea- 
son of  the  conditional  release  in  the  mort- 
gage, only  by  sale  under  a  decree  of  fore- 
closure. Roan  V.  Holmes,  32  Fla.  295,  13 
So.  339,  21:180 

25.  A  release  by  the  wife  of  her  contin- 
gent right  of  dower,  by  joining  with  her 
husband  in  a  mortgage  to  secure  his  debt, 
does  not  inure  to  the  benefit  of  a  stranger 
to  the  instrument,  either  by  way  of  grant 
or  estoppel.  Mandel.  v.  McCIave,  46  Ohio 
St.  407,  22  N.  E.  290,  5:  519 

26.  The  inchoate  right  of  dower  of  a  wife 
attaches  in  subordination  to  a  lien  accom- 
panying the  seisin  of  her  husband;  and 
therefore  the  foreclosure  of  a  purchase- 
money  mortgage  during  coverture  destroys 
such  right  of  dower.  Seibert  v.  Todd,  31 
S.  C.  206,  9  S.  E.  822,  4:  606 

27.  A  wife's  right  of  dower  in  the  equity 
of  redemption  in  lands  of  her  husband 
under  a  deed  of  trust  in  which  she  joined  is 
not  aflFected  by  their  sale  under  a  subse- 
quent deed  of  trust  in  which  she  did  not 
join,  executed  after  the  making  of  a  void 
separation  aercement  by  which  she  at- 
tempted to  release  her  dower.  Land  v. 
Shipp,  98  Va.  284.  36  S.  E.  391,  50:  560 
By  judicial  sale  in  general. 

For  Editorial  Notes,  see  infra,  III.  §  6. 

28.  The  sale  under  order  of  the  court,  of 
partnership  real  estate,  in  an  action  to  dis- 
solve the  partnership  and  wind  up  its  af- 
fairs, is  made  free  from  any  inchoate  in- 
terest of  the  wives  of  the  partners,  even  if 
the  property  sells  for  more  than  is  neces- 
sary to  pay  the  firm  debts,  or  if  it  was  not 
necessary  to  sell  the  whole  of  the  property 


for    that    purpose.     Woodward-Holmes    Co. 
V,  Xudd,  58  Minn.  236,  59  N.  W.  1010, 

27:  340 

29.  Where  land  is  sold  at  judicial  sale, 
free  froin_  the  wife's  contingent  right  of 
dower,  whatever  right  she  may  have  is  in 
the  proceeds  of  the  sale,  and  must  be  en- 
forced, if  at  all,  by  distribution  of  the  fund. 
Mandel  v.  McClave,  46  Ohio  St.  407,  22  N. 
E.  290,  5:  519 

30.  Where  land  is  bona  fide  sold,  in  the 
lifetime  of  a  husband,  to  satisfy  a  lien  or 
encumbrance  thereon  paramouilt  to  the 
wife's  contingent  right  of  dower,  and  such 
land  sells  for  more  than  enough  to  satisfy 
such  paramount  claim  or  claims  and  the 
necessary  costs  aaid  expenses,  such  con- 
tingent right  of  dower  in  the  surplus  re- 
mains a  charge  (not  assignable  in  kind) 
on  sucfh  land,  unless  the  same  is  sold  free 
and  acquit  from  such  contingency.  Bassell 
v.  Caywood,  54  W.  Va.  241,  46  S.  E.  159, 

66:  880 
By  execution  sale. 
See  also  infra,  74.  . 
For  Editorial  Notes,  see  infra.  III.  §  6. 

31.  The  inchoate  contingent  interest  of 
a  husband  or  wife  in  real  estate  owned  by 
the  other,  under  Minn.  Gen.  Laws  1889. 
chap.  46,  subc.  3,  §  64,  and  commonly  called 
the  "dower  right,"  is  not  devested  by  a 
transfer  of  title  from  the  owner  of  the 
property  to  a  purchaser  at  a  sale  on  exe- 
cution founded  upon  a  judgment  against 
suoh  owner.  Davton  v.  Corser,  51  Minn. 
406,  53  N.  W.  717,  18:  80 

32.  The  existence  of  a  judgment  against 
a  man  wlhen  he  pays  his  bid  on  lands  sold 
for  partition,  and  the  levy  of  an  execution 
thereunder  upon  his  interest  in  the  lands, 
will  not  have  the  effect,  by  relation  or 
otherwise,  to  transfer  his  title  under  the 
deed  which  he  subsequently  receives  to  the 
execution  purchaser,  so  as  to  cut  oflf  his 
wife's  dower  rights.  Davis  v.  Green.  102 
Mo.  170,  14  S.  W.  876,  11:  90 

33.  The  sale  of  the  real  estate  of  the 
husband  under  execution  on  a  judgment 
against  him  alone,  followed  by  judicial  con- 
firmation and  conveyance,  does  not  ex- 
tinguish the  wife's  inchoate  right  of  dower. 
Butler  V.  Fitzgerald,  43  Neb.  192,  61  N.  W. 
640,  27:252 

34.  A  purchaser  on  a  sale  under  a  judg- 
ment against  the  debtor  acquires  the  same 
status,  so  far  as  the  right  of  the  debtor's 
wife  to  dower  in  the  premises  sold  is  con- 
cerned, as  though  he  were  the  alienee  of 
the  husband  by  his  own  voluntary  act  and 
deed.  Roan  v.  Holmes,  32  Fla.  295.  13  So. 
339,  21 :  180 
By  partition   sale. 

See  also  supra,   14,  22. 

For  Editorial  Notes,  see  infra,  III.  §  6. 

35.  The  inchoate  right  of  dower  of  the 
wife  of  a  tenant  in  common  is  defeated  by 
a  sale  in  partition  of  the  common  property, 
althnutrli  she  is  not  a  partv  to  the  proceed- 
insrs.  HoUev  v.  Glover,  36'  S.  C.  404.  15  S. 
E.    605.  16:  77« 

'M.  A  prior  sale  by  a  tenant  in  common 
of  his  undivided   interest  does   not  prevent 


DOWER,  I.  a 


the  bar  of  his  wifes  inchoate  right  of  dower 
by  a  subsequent  sale  in  partition.  Id 

37.  The  inchoate  right  of  the  wife  of  a 
cotenant  of  real  estate  is  subject  to  the 
liability  of  the  husband's  estate  to  be  de- 
vested by  a  partition  sale.  Haggerty  v 
Wagner,  148  Ind.  625,  48  N.  E.  366,    39:  384 

38.  A  wife's  inchoate  interest  under  Ind. 
Rev.  Stat.  1894,  §  2652,  in  real  property 
owned  by  her  husband  as  a  tenant  in  com- 
mon, may  be  extinguished  by  a  partition 
sale  notwithstanding  the  Indiana  statutes 
make  no  provision  for  the  partition  of  her 
inchoate  right,  and  the  courts  are  not  au- 
thorized to  direct  the  payment  of  any  part 
of  the  proceeds  upon  such  a  sale.       "       Id. 

39.  The  inchoate  right  of  a  yiiiie  under 
Ind.  Rev.  Stat.  1894,  §  2652,  in  land  held  by 
her  husband  as  a  cotenant,  may  be  barred 
by  a  partition  sale  in  an  action  to  which  she 
was  not  a  party,  notwithstanding  Ind.  Rev. 
Stat.  1894,  §  2660,  providing  that  no  sale 
of  the  husband's  property  by  virtue  of  any 
decree  to  which  she  shall  not  be  a  party 
S'hall  aflFect  her  rights,  as  that  section  ap- 
plies only  where  the  wife  is  a  necessary 
party,  which  she  is  not  in  such  action.     Id. 

40.  The  eflfect  of  the  deed  in  a  partition 
sale  is  not  reduced  to  that  merely  of  co- 
owners  so  as  to  leave  the  property  subject 
to  the  inchoate  dower  rights  of  their  wives, 
by  a  statute  providing  that  the  convey- 
ances shall  bar  all  claims  of  such  owners  to 
said  lands  as  effectually  as  if  they  them- 
selves had  executed  the  same.       '  Id. 

41.  A  statute  providing  that  a  judicial 
sale  of  a  man's  propertj-  in  a  suit  to  which 
his  wife  is  not  a  party  shall  not  prejudice 
her  dower  rights  has  no  effect  in  case  of  a 
sale  for  partition  of  land  in  which  he  has 
an  undivided  interest,  where  another  stat- 
ute designating  the  persons  to  be  made  par- 
ties to  partition  proceedings  does  not  recog- 
nize her  as  a  necessary  one.  Id. 
By  tax  sale. 
See  also  supra,  4. 
For  Editorial  Notes,  see  infra.  III.  §  G. 

42.  An  inchoate  right  of  dower  is  not  de- 
feated by  a  tax  sale  where  the  lien  for 
taxes  attached  after  the  dower  right  had 
become  fixed  by  the  concurring  facts  of 
marriage  and  the  husband's  seisin.  Shell  v. 
Duncan,  31  S.  C.  547,  10  S.  E.  330,        5:  821 

43.  An  inchoate  right  of  dower  is  not  cut 
oflF  by  a  sale  of  the  husband's  land  for 
taxes,  since  the  tax  proceeding  is  not 
strictly  in  rem,  although  the  statutes  do 
not  permit  any  personal  judgment  for  the 
tax,  where  they  also  provide  that  the  wife's 
interest  shall  not  be  affected  by  any  act  or 
laches  of  the  husband,  or  by  any  judgment 
against  him.  Blevins  v.  Smith,  104  Mo. 
.iS.-?.  16  S.  W.  213,  13:  441 
By  annulment  of  marriage. 
See  also  supra.  9. 

44.  No  dower  right  exists  in  favor  of  a 
woman  whose  marriage  was  annulled  be- 
cause the  husband  had  a  wife  living,  al- 
though she  had  not  been  heard  from  with- 
in five  years  l)efore  the  second  marriage, 
which  was  contracted  by  both  parties  in 
good    faith,  and  was   therefore   valid  under 

L.R.A.  Dig.— 67. 


1067 
2  N.  Y.  Rev.  Stat.  139,  §  6,  until  its  nullity 

J^?x?'"Q?^""^®''  ^y  *  «'"'•*•    Price  v.  Price, 
124  N.  Y.  589,  27  N.  E.  383,  12:  .359 

By  agreement  for  separation  or  divorce. 

•  1^:  ^.  ^^^^  ^"^  "'^*^  ^^""ed  of  her  dower 
rights  m  her  husband's  property  at  hia 
death  by  having  executed  a  void  contract 
for  divorce.  Palmer  v.  Palmer,  26  Utah, 
31,   72  Pac.  3,  61:641 

46.  A  deed  of  separation  which  attempts 
to  dissolve  the  marital  relations  of  husband 
and  wife,  release  her  dower  right  directly 
to  him,  and  place  upon  her  the  support  of 
herself  and  child,  contains  no  element  of 
jointure  which  will  put  the  wife  to  an  elec- 
tion, after  her  husband's  death,  whether 
she  will  claim  dower  in  his  lands  or  retain 
the  consideration  for  the  separation  agree- 
ment, which  in  her  situation  is  readily  con- 
sumed in  supporting  herself  and  child 
Land  v.  Shipp,  98  Va.  284,  36  S.  E.  391, 

50:  560 

47.  Thf  release  by  a  married  woman  of 
all  rights  in  the  property  of  her  husband, 
m  consideration  of  the  payment  to  her  of 
•$400,  upon  the  making  of  a  deed  of  separa- 
tion between  them,  which  had  none  of  the 
elements  of  a  jointure,  is  utterly  void,  and 
does  not  estop  her,  upon  his  death,  from 
claiming  dower,  since  her  inchoate  right 
of  dower  is  not  a  part  of  her  statutorv 
separate  estate,  within  the  meaning  of  the 
married  woman's  act  giving  her  power  to 
contract  with  reference  to  her  separate  es- 
tate. i,j 

48.  Payment  of  a  mortgage  in  which  a 
wife  joined,  out  of  the  proceeds  of  a  sale 
of  the  property  under  a  subsequent  mort- 
gage upon  the  property  executed  by  the 
husband  alone  after  their  separation,  will 
not  restore  her  right  of  dower  to  the  whole 
land,  but  the  claim  will  be  valid  only 
against  the  equity  of  redemption,  aa  it  was 
before  the  payment.  Id. 
By  adultery  or  divorce. 
Law  Governing  Right  to  Dower,  see  Con- 
flict of  Laws,  143. 

Effect  of  Divorce  in  Other  State,  see  Judg 

ment,  370. 
For  Editorial  Notes,  see  infra.  III.  §  4. 

49.  A  woman  who,  during  her  abandon 
ment  of  her  husband,  admits  any  man  or 
men  to  her  periodically  or  whenever  it  is 
convenient  or  opportunity  is  afforded,  is 
living  in  adultery  within  the  meaning  of  the 
Kentucky  statutes  which  forfeit  her  dower 
or  distributable  share  in  her  husband's  prop- 
erty when  she  voluntarily  leaves  him  and 
lives  in  adultery.  Goss  v.  Froman,  89  Ky. 
318.  12  S.  W.  387,  8:  102 

50.  A  forfeiture  of  the  right  of  dower 
of  a  widow  who  had  lived  in  adultery  after 
her  husband  had  abandoned  her  to  live  in 
illicit  relations  with  another  woman,  and 
her  efforts  to  win  him  back  had  been  in 
effectual,  is  not  m.ade  by  S.  C.  Rev.  Stat. 
1893,  §  1903,  re-enacting  the  statute  of  13 
Edw.  I.,  chap.  34,  commonly  called  the 
statute  of  Westminster.  II..  which  declares 
the  forfeiture  of  a  wife's  right  of  dower  if 
she    "willingly    leave   her    husband    and    go 


1058 


DOWER,  II. 


away  and  continue  with  her  advoutrer." 
Beaty  v.  Richardson.  56  S.  C.  173,  34  S.  E. 
73,  •  46:517 

51.  The  "misconduct"  of  the  wife,  within 
the  meaning  of  the  New  York  statute  which 
denies  her  right  to  dower  in  case  of  divorce 
for  her  misconduct,  means  such  misconduct 
only  as  will  authorize  a  divorce  in  that 
state.  Van  Qeaf  v.  Bums,  133  N.  Y.  540, 
30  N.  E.  661,  15:  542 

52.  The  express  denial  of  dower  in  Xew 
York  statutes,  where  a  divorce  is  granted 
for  the  wife's  adultery,  does  not  by  implica- 
tion give  dower  in  case  of  annulment  of  a 
marriage  made  in  good  faith,  because  the 
husband  had  a  former  wife  living.  Price  v. 
Price,  124  N.  Y.  589,  27  N.  E.  383,        12:  359 

53.  The  right  to  dower  is  barred  by  an 
annuity  given  for  life  by  a  consent  decree 
in  a  divorce  suit,  making  the  annuity  a  lien 
and  charge  upon  the  husband's  real  estate, 
where  the  wife  has  taken  her  support  and 
maintenance  under  the  decree,  and  still 
continues  to  claim  it.  Adams  v.  Storey, 
135  ni.  448,  26  N.  E.  582,  11:  790 

54.  A  divorce  from  the  bonds  of  matri- 
mony bars  a  claim  of  the  divorced  wife  to 
dower,  notwithstanding  an  implication  from 
a  statute  denying  dower  in  case  of  divorce 
for  her  misconduct,  that  the  legislature 
supposed  she  would  be  entitled  to  dower 
lifter  divorce  not  based  on  her  misconduct. 
Wood  V.  Wood,  59  Ark.  441.  27  S.  W.  641, 

28:  157 

55.  The  right  to  dower  which  a  former 
wife  divorced  without  alimony,  where  she 
is  the  innocent  party,"  is  given  by  Conn. 
Oen.  Stat.  §  618.  does  not  exist  in  favor 
of  any  former  wife  of  a  man  who  had  an- 
other lawful  wife  at  the  time  of  his  death, 
since  that  section  gives  the  right  first  to  a 
woman  "livinff  with  her  husband  at  the 
time  of  his  death,"  and  the  provision  for 
the  divorced  wife,  when  construed  in  con- 
nection with  §  2803,  permitting  both  par- 
ties to  marry  again,  and  §  630,  providing 
for  the  shares  of  husband  and  wife  in  the 
distribution  of  intestate  estates,  shows  the 
intent  to  give  dower  to  the  lawful  wife 
surviving,  if  any,  and  to  no  one  else. 
I'.rown's  Appeal,  72  Conn.  148,  44  Atl.  22, 

49:  144 


IT.  Rights  and  Remedies  of  Widow. 

Iiuhoate  Right,  see  supra,  I.  a. 

nights   in   Surplus   Money   on    Foreclosure, 

see  supra.   10. 
I'or  Editorial  Notes,  see  infra.  TTT.  §  8. 

Nonresident  widow. 

.16.  A  widow  who  is  not  and  never  has 
lo-en  a  resident  of  the  state  is  not  entitled 
in  Kansas  to  any  interest  in  real  property 
of  her  husband "  in  that  state.  Small  v. 
Small,  56  Kan.  1,  42  Pac.  243.  30:  243 

Assignment. 
See  also  infra.  75. 

57.  The  right  of  a  husband  in  Illinois  to 

dower  in  his  wife's  lands  before  assignment 

iii.t    .m    fsfalf    in    the    lands   in    which    a 


I  leasehold  estate  will  be  merged.  Heisen  v 
:  Heisen,  145  111.  658,  34  N.  E.  597,  21:  434 
58.  The  right  of  dower,  unlike  an  estate 
1  given  to  a  widow  by  the  statute  of  descents 
I  and  distributions,  confers  no  seisin  until  it 
I  has  been  assigned  to  her,  although  she  may 
I  be  actually  in  possession  by  acquiescence  of 
I  heirs  and  devisees.  McMahon  v.  Gray,  150 
Mass.  289,  22  N.  E.  923,  5:  748 

I  59.  The  test  wihether  an  assignment  of 
j  dower  by  metes  and  bounds  would  or  would 
j  not  be  unjust  under  Ala.  Code  1886,  §§ 
1910,  1911.  is  not  to  be  determined  by  the 
interest  of  the  doweress  alone,  but  accord- 
ing to  what  would  be  just  and  right  as  be 
tween  her  and  the  present  owner  of  the 
land.  Sanders  v.  McMillian,  98  Ala.  144,  11 
So.  750,  18:  425 

60.  Since,  under  the  Illinois  statutes, 
there  is  no  provision  for  the  assignment  of 
dower  in  lands  held  in  common,  in  deter- 
mining the  mode  of  assignment  where  par 
tition  between  the  tenants  in  common  is 
not  made,  resort  must  be  had  to  the  rules 
of  the  common  law.  Hart  v.  Burch,  130 
111.  426,  22  N.  E.  831,  6:  371 

61.  The  appointment  of  commissioners 
under  the  Illinois  dower  act,  §  34,  is  not 
necessarj'.  where  dower  is  assigned  under  § 
39,  on  a  finding  that  the  premises  cannot  bo 
divided  without  great  injury.  Heisen  v. 
Heisen,  145  111.  658,  34  N.  E.  597,        21:  434 

62.  The  depreciation  in  the  value  of  land 
which  is  subject  to  dower,  after  alienation 
by  the  husband,  whether  from  natural 
causes  or  from  the  mere  negligence  of  the 
purchaser  or  alienee  in  keeping  the  prop- 
erty in  repair,  is  not  sufficient  cause  for 
assigning  compensation  to  the  widow  ac- 
cording to  the  value  at  the  time  of  the 
alienation,  instead  of  setting  ofiF  the  dower 
by  metes  and  bounds.  Sanders  v.  McMil- 
lian, 98  Ala.  144,  11  So.  750,  18:  425 

63.  A  guardian  of  a  minor,  having  no 
power  to  assign  dower  in  lands  of  the  ward, 
cannot  by  his  void  act  or  parol  agreement 
as  to  such  assignment,  made  to  induce  leas- 
ing the  lands  to  one  entitled  to  dower, 
whereby  the  rent  is  to  be  less  than  is  ex- 
pressed in  a  written  lease,  estop  the  ward 
from  denying  the  validity  of  his  acts  or 
agreement,  or  prevent  him  from  claiming 
the  whole  amount  of  the  rent  named  in  the 
lease.  Heisen  v.  Heisen.  145  111.  658,  34  N. 
E.  597.  21:434 
Conveyance  or  release  of  unassigned  dower. 
Bar  of  Inchoate  Right  by  Conveyance,  see 

supra,   17-23. 
Parol  Evidence  as  to  Consideration  for,  see 

Evidence,  1186. 
See  also  supra,  25.  46,  47. 

64.  The  unassigned  right  of  dower  can 
exist  only  in  the  person  upon  whom  it  is 
cast  by  operation  of  law;  and  a  deed  or 
conveyance  of  it  will  pass  no  title,  ajid 
can  on-ly  be  eflfective  as  a  release  and  extin- 
guishment of  the  right.  Hart  v.  Burch,  130 
HI.  426,  22  N.  E.  831.  6:  371 

65.  An  unassigned  right  of  dower  is  not 
the  subject  of  transfer  or  sale,  and  cannot 
be  released  to  one  not  in  privity  with  the 
title  un<ler  whieh  the  dowress  claims.       Id. 


DOWER,  III. 


1069 


tiii.  While  it  is  not  necessary  that  the  re- 
leasee of  an  unassigned  right  of  dower 
should  hold  the  fee,  yet  he  must  be  the 
legal  or  eq^uitable  owner  of  title,  or  stand  in 
such  relation  thereto  that  the  dower  right, 
upon  execution  of  the  roloasp,  will  unite 
with  the  fee.  Id. 

67.  A  purchaser  at  a  sale  on  partition 
<iannot,  before  contirmation.  acquire  a  re- 
lease  of   an   unassigned   dower   right.       Id. 

68.  A  deed  by  the  widow  of  a  tenant  in 
common  before  ;  ssignment  of  her  dower 
tioes  not  take  effect  as  a  release  of  her 
dower  as  to  a  cotenant  of  her  husband. 

Id. 
Rights   of    creditors   in    unassigned    dower. 

69.  An  luiassigned  right  i)f  dower  cannot 
be  reached  by  a  creditors'  bill,  in  the  ab- 
sence of  any  provision  therefor  by  statute. 
Harper  v.  Clayton.  84  Md.  346,  35  Atl.  1083, 

35:  211 

70.  Dower  unassigned  cannot  be  attached 
or  taken  on  execution  by  a  widow's  credi- 
tors in  an  action  at  law.  McMahon  v. 
Gray,  150  Mass.  289,  22  N.  E.  923,      5:  748 

71.  The  remedy  in  equity  to  reach  "any 
property,  right,  title,  or  interest,  legal  or 
equitable,  of  a  debtor,"  given  by  Mass.  Pub. 
Stat.  chap.  151,  §  2,  cl.  11,  as  amended  by 
Mass.  Stat.  1884,  chap.  285,  is  available  to 
the  creditor  of  a  widow  to  reach  her  right 
of  dower  unassigned.  Id. 
Damages  for  detention. 

72.  The  right  to  damages  for  detention 
of  dower  in  premi^^es  aliened  during  the 
lifetime  of  the  husband  is  an  incident  to 
the  principal  right  to  dower,  and  falls  on 
the  death  of  the  widow,  pending  her  suit 
for  admeasurement  of  dower,  before  any 
adjudication  of  the  contested  right.  Roan 
V.  Holmes,  o2  Fla.  295.  13  So.  339,      21 :  180 

73.  Mesne  profits  by  way  of  damages 
for  detention  of  dower,  if  recoverable  at 
all  as  against  the  alienee  of  the  husband, 
can  be  recovered  only  from  the  time  of 
the  widow's  demand  for  her  dower  inter- 
est,  and   refusal    thereof  by   the   alienee. 

Id. 
Estimating  value  of  dower. 

74.  Lands  sold  under  execution  against  a 
husband  is  "aliened  by  the  husband"  with- 
in the  meaning  of  Neb.  Comp.  Stat.  1893, 
chap.  23,  §  7,  providing  that  the  widow's 
dower  in  such  land  ishall  be  estimated  ac- 
cording to  its  value  when  so  aliened.  But- 
ler V.  Fitzgerald.  43  Xeb.  192.  61  X.  W. 
640,  27:252 

75.  The  estimate  of  the  value  of  real 
Instate  for  the  purpose  of  assigning  a  wid- 
ow's right  of  dower  therein,  under  Xeb. 
Comp.  Stat.  1893.  chap.  23,  §  7,  providing 
that  the  value  of  land  alicni'd  by  the  hus- 
band, and  afterwards  cnlianeed  in  value, 
shall  be  estimated  according  to  the  value 
when  aliened,  is  to  be  made  by  deducting 
the  value  of  improvomonts  made  after 
alienation,  but  otherwi-..'  according  to  the 
value  at  the  time  of  assigning  the  dowtr, 
thus  giving  Ihf  widow  the  benefit  <of  the 
increax'  from  other  causes  than  improve- 
nieiti~    made   upon    tlie   property.  Id. 


in.  Editorial    Notes, 
a.  In  general;  the  right. 

§  I.  In  what  property. 

In  homestead;  relative  rights  of  wife  and 
children.     56:  67. 

In  partnership  real  estate.     27 :  340. 

In  mines.     16:  247. 

In  equity  of  redemption.     4:  118;*  5:  519.* 

§  2.  Nature  and  extent;  priority  to  other 
claims. 

Estate  of  widow  before  assignment  of  dow- 
er.     5:  520.* 

Abatement  or  preference  of  legacy  in  lieti 
of    dower.      9:  250.* 

Effect  of  discharge  of  vendor's  lien  upon 
dower  right.     4:  608.* 

Subordination  to  vendors  lien  or  purchase 
money  mortgage.    4:  606.* 

Superiority  to,  of  legal  title  retained  by 
vendor  as  security.  4: 
608.* 

Widow's  right  on  foreclosure  of  morteage. 
5:  521.*  ^  ^ 

Dower  rights  of  wife  who  unites  with  hus- 
band in  mortgage.  5: 
519.* 

Estimating  value  of  dower   right.  5:  521.* 

Effect  of  depreciation  in  value  of  land  on  a 
widow's  right  of  dower 
therein.      18:  425. 

Rights  of  widow  in  accretions  added  to 
shore  lands.    .58:  210. 

b.  How  lost  or  destroyed;  election. 

§  3.  Generally. 

Power  of  legislature  to  destroy.     19:  256. 

Bar  of  inchoate  right,  generally.  13:  441.* 

Release  of  inchoate  right  by  attorney  under 
power  given  by  married 
woman.     16 :  209. 

Antenuptial  contract  as  bar  to  dower.  2: 
373.* 

Effect  of  husband's  insanitj'  upon  wife's 
power  to  convev  or  bar 
dower.     34 :  224.  * 

Effect  of  fraud  to  estop  widow  from  claim- 
ing.    25:  573. 

§  4.  Effect  of  misconduct  or  divorce. 

Decree  of  <livorce  as  a  bar  to  claim  for 
dower.     11:  790.* 

Effect  of  abandonment  of  marriage  obliga- 
tion t^  bar  dower.  11: 
791.' 

Effect  of  adulterous  elopement  to  bar  dow- 
er.     11:791.* 

Effect  of  divorce  in  another  state.  15:  542; 
.59:  181. 

§  5.  Power  of  husband  or  his  creditors  to 
defeat. 

Generally.     18:  75. 

As  to  lands  held  in  eomnion  by  husband. 
18:  75. 

As   to   lands   sold   under   mortgage.     18:  76. 

Bankruptcy.     18:  77. 

Sale  on  execution  to  satisfy  mechanics' 
lien.     IS:  77.' 

Sale  under  execution  against  husband. 
18:  78. 


1060 


DOWER,  III.  (Ed  Notes.)— DRAINS  AND  SEWERS. 


§  6.  Partition  or  tax  sale;  dedication;  con- 
demnation; adverse  possession. 

Kflfect  of  partition  sale  upon  dower  rights 
of  one  not  a  party.  16: 
776. 

Effect  of  sale  of  husband's  lands  for  taxes 
upon  wife's  right  of  dow- 
er.   18:  79. 

Effect  of  dedication  or  condemnation  of  hus- 
band's lands  to  public  use 
upon  wife's  right  of  dower. 
8:  443;*  18:  79. 

Effect  of  adverse  possession  of  husband's 
lands  on  wife's  right  of 
dower.     18:  78. 

§  7.  Election. 

Provision  in  will  in  lieu  of  dower.  3:  497;* 
9:  250.* 

When  widow  put  to  her  election  between 
dower  and  provision  in 
will  for  her  benefit.  3: 
498;*   12:  229.* 

Effect  of  election  by  widow.  3:600;*  12: 
231.* 

Notice  of  election  by  widow.    12:  229.* 

Effect  on  third  person  of  widow's  election 
to  take  against  will.  14: 
293. 

Who  may  elect  against  will  in  behalf  of  in- 
sane   widow.      17:  296. 

Appointment  of  annuity  created  and  ac- 
cepted in  lieu  of  dower. 
63:  625. 

Preference  of  legacy  to  widow,  in  lieu  of 
dower  over  other  legacies. 
9:  251.* 

c.  Rights,  duties,  and  remedies. 

§  8.  Generally. 

Right  of  doweress  to  mesne  profits  or  dam- 
ages for  detention  of  dow* 
er.    21 :  180. 

Duty  of  tenant  in,  to  pay  taxes.     32:  748. 

Ejectment  by  widow.     18:  790. 

Tontribution  between  heir  and  widow  in 
case  of  payment  of  niort- 
gage.      5 :  520.* 

Doweress  as  a  necessary  party  to  foreclo- 
sure suit.     5:  521.* 

Equitable  remedy  to  subject  unassigned 
dower  to  judgment  after 
return  of  no  property 
found.     63:  697. 

Doweress  as  partv  to  foreclosure  suit.  5: 
621.* 

Ijevy  on  estate  of.     2.'):  047. 

Effect  of  tax  sale  on  land  held  by  tenant 
in  dower.     32:  807. 


DRAFTED  MEN. 

Tax  to   Pay   for  Sorvicos  of.  see  Taxes.  80. 

«-»♦ 


DRAFTS. 

I'aymont  by.  soo  Payment,  11,   12. 

Fn  ripnpral.  soo  P>ills  and  N'otes:  Chocks. 


Editorial  Notes. 

Nature  of,  by  one  bank  on  another.     23: 
173. 

Effect  of  drawing  draft  against  bill  of  lad- 
ing, upon  passing  of  title 
to  property.    22:  423. 

Effect  of,  to  create  a  maritime  lien.   70:  418. 


■♦•» 


DRAINAGE  COMMISSIONERS. 

Delegation  of  Power  to,  see  Constitutional 
Law,  224. 


DRAINAGE  DISTRICTS. 

Due  Process  in  Including  Property  in,  see 
Constitutional    Law,    890. 

As  Political  Subdivision,  see  Corporations, 
15. 

Organization  of,  under  Power  of  Eminent 
Domain,  see  Eminent  Domain,  132. 

Right  to  Jury  Trial  in  Proceedings  to  Or- 
ganize, see  Jury,  6. 

See  also  Drains  and  Sewers,  17,  16,  28-31, 
34. 

1.  Basing  the  voting  power  in  a  drainage 
district  on  acreage,  rather  than  on  member- 
ship, is  not  unlawful.  Mound  City  Land  & 
S.  Co.  V.  Miller,  170  Mo.  240,  70  S.  W.  721, 

60:  190 

2.  Requiring  citizens  to  become  members 
of  drainage  districts,  and  share  the  ex- 
pense of  drainage,  against  their  wills,  does 
not  make  the  law  unconstitutional.        Id. 


DRAINS  AND  SEWERS. 

I.  In    General;    Establishment;    Repairs; 

Statutes. 
II.  Procedure. 

III.  Assessments. 

IV.  Editorial  Notes. 

Vapors  from,  see  Case,  24. 

Statute  as  to.  as  Infringement  of  Judicial 
Power,  see  Constitutional  Law,  257. 

Mode  of  Transferring  Rigfht  of  Drainage, 
see  Contracts,   174. 

Validity  of  Contracts  for  Purchase  of,  see 
Contracts,  III.  d. 

Delegation  of  Power  to  Drainage  Commis- 
sioners, see  Constitutional  Law,  224. 

Discrimination  against  Nonresidents  as  to, 
see  Constitutional  Law,  365. 

Due  Process  of  Law  as  to,  see  Constitu- 
tional  Law.  654.   672,  890. 

Right  to  Discharge  Water  Closets  of  Court 
House  on  .Vdjoining  Land,  see  Coun- 
ties, 26. 

Conclusiveness  of  Legislative  Decision  as  to, 
see  Courts,  161. 

Damajres  Caused  by.  see  Damages,  662. 

Liability  for  Death  Due  to  Unsanitary  Con- 
dition of,  .see  Death,  45. 

Drainage   Districts,   see   Drainage   Districts. 


DRAINS  AND  SEWERS,  I. 


Ejectment  to  Procure  Discontinuance  of, 
see  Ejectment,  6. 

Damage  by  Sewage  as  a  Taking  of  Prop- 
erty, see  Eminent  Domain,  259,  260. 

Payment  of  Compensation  for  Establish- 
ing, see  Eminent  Domain,  300. 

Liability  for  Consequential  Injuries  by 
Sewage,  see  Eminent  Domain,  361-366. 

Judicial  Notice  as  to,  see  Evidence,  54,  152. 

Explosion  of  Gas  in  Sewer,  Opinion  as  to, 
see  Evidence,  1383. 

Evidence  of  Defective  Condition  of,  see 
Evidence,    1985. 

Enjoining  Discharge  of  Sewers  on  Adjoin- 
ing Land,  see  Injunction,  13. 

Injunction  against  Grate  Over  Sewer,  see 
Injunction,  375. 

Injunction  against  Defective  'Sewer,  see 
Nuisances,  69. 

Injury  to  Lateral  Support  by  Digging,  see 
Lateral  Support,  3. 

Revocation  of  License  for,  see  License,  11-13. 

Limitation  of  Action  for  Injury  by,  see 
Limitation  of  Actions,   146. 

Injury  to  Employee  in,  see  Master  and 
Servant,   131. 

Assumption  of  Risk  as  to,  see  Master  and 
Servant,  281. 

Liability  of  Independent  Contractor  for 
Negligence  as  to,  see  Master  and  Serv- 
ant, 722. 

Municipal  Liability  for  Injury  by  Defects 
in,  see  Mtmicipal  Corporations.  II.  g, 
3.  and  also  infra,  IV.  §  3. 

Waiver  of  Strict  Performance  of  Sewer 
Contract,  see  Municipal  Corporations, 
276. 

Contract  as  to  Sewage,  see  Municipal  Cor- 
porations, 289. 

Municipal  Contract  for  Right  of  Way  for 
Sewer,  see  ^Municipal  Corporations,  291. 

Liability  for  Drowning  of  Child  in,  see  Mu- 
nicipal Corporations,  439. 

Explosion  of  Oil  in,  see  Oil,  1,  2. 

Parties  to  Action  for  Negligence  in  Con- 
structing, see  Parties,  192. 

Assessments  for  Damages  from  Taking  of 
Land  for,  see  Public  Improvements, 
170. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 93. 

Title  of  Statute  as  to.  see  Statutes,  216, 
239-241. 

Damage  to  Ditch,  see  Trespass,  8,  11. 

Diversion  of  Waters  bv,  see  Waters.  239, 
240. 

Draining  Small  Lake  or  Pond,  see  Waters, 
247-253. 

Drainage  of  Surface  Waters,  see-  Waters, 
IT.  g;  IV.  §  32. 

Effect  of  Acquiescing  in  Drainage,  see 
Waters,  253. 

Pollution  of  Water  by  Sewage,  see  Injunc- 
tion, 32.  208-213:  Nuisances,  158; 
Waters,  293-301.  515-518.  W.  §  26. 


1.  In     (leneral:      Establishment:      Repairs; 
Statutes. 

Requiring  Cleaning  of  Ditches  as  a  Taking 
of  Property,  see  Eminent  Domain,  249. 


1081 

Consequential  Injuries  by  Construction  of, 

see  Eminent  Domain,  354. 
For  Editorial  Notes,  see  infra.  TV. 

Validity  of  statutes. 
See  also  infra,  14. 

1.  Creating  a  drain  commission  and  pro- 
viding for  county  bonds  to  pay  for  drains' 
within  _  a  county,  under  special  legislative 
authority,  does  not  violate  a  constitutional 
provision  that  "the  fiscal  aflfairs"  of  the 
county  shall  be  transacted  by  county  com- 
missioners. Martin  v.  Tyler,  4  N.  D.  728. 
60N,  W.  392,  25:8.38 

2.  That  no  discretion  to  determine  wheth- 
er the  improvement  is  for  the  public  health, 
convenience,  or  welfare  is  vested  in  any  of- 
ficer or  tribunal  by  a  statute  providing  for 
the  cleaning  and  repair  of  drainage  ditches, 
and  the  assessment  of  the  cost  thereof  upon 
the  parties  who  were  assessed  for  the  origi- 
nal construction  of  each  ditch,  does  not  ren- 
der it  unconstitutional,  since  ail  questions 
as  to  the  public  health,  convenience,  and 
welfare  must  have  been  settled  by  the  origi- 
nal proceedings  for  the  establishment  of  the 
ditch.  Taylor  v.  Crawford.  72  Ohio  St.  560. 
74  N.  E.  1065,  69:  80.=i 

3.  The  failure  of  Minn.  Gen.  Stat.  1901. 
chap.  258,  providing  a  general  system  for 
draining  wet  and  overflowed  lands  of  the 
state,  to  expressly  require  the  board  of 
county  dbmmissioners  to  determine  wheth- 
er a  proposed  improvement  thereunder  will 
result  beneficially  to  the  public,  does  not 
render  it  unconstitutional,  as  the  power  to 
make  such  determination  must  be  implied 
from  the  provisions  contained  therein  for 
filing  a  petition  for  the  location  of  a  pro- 
posed ditch  with  the  county  auditor  and  the 
giving  of  notice  by  him  to  all  interested 
parties  of  a  time  and  place  of  "hearing  to 
be  had  thereon,"  at  which  hearing  the  board 
must  determine  whether  to  entertein  the  pe 
tition  or  not,  and  for  a  subsequent  hearing 
after  the  viewers  appointed  shall  have  made 
their  report  as  to  the  damages  and  benefits: 
to  accrue  from  its  construction.  State  er 
rel.  Utick  v.  Polk  Count v  Comrs.  87  Minn. 
325,  92  N.  W.  216,  '  60:  161 

4.  A  statute  providing  a  general  plan  or 
scheme  for  the  reclamation,  for  agricultural 
purposes,  of  the  wet  or  marsh  lands  of  th«' 
state  by  drainage,  cannot  be  made  to  oper 
ate  to  secure  drainage  for  private  interest*, 
although  the  legislature  declares  drainage 
for  agricultural  purposes  to  be  of  public 
benefit,  where  the  procedure  established  by 
the  statute  requires  an  actual  finding  of 
public  benefit,  in  each  instance,  before  a 
drainage  scheme  can  be  undertaken.  Sisson 
V.  Buena  Vista  Countv,  128  Iowa.  442,  104 
X.  W.  454.  "  70:  440 
Authority  to  establish. 

Power  to  Condemn  Land  for,  see  Eminent 

Domain,  1. 
Right  to  Jury  Trial,  see  Eminent  Domain. 

195. 
For  Editorial  Notes,  see  infra,  IV.  §  1. 

5.  Authority  to  lay  out  and  construct 
public  drains  and  sewers  cannot  properly  be 
claimoil  In   ;i  town  as  necossarilv  incident  tn 


1063 


DRAINS  AND  SEWERS,  II  ,  111. 


I  he  exercise  of  its  corporate  powers  or  the 
performance  of  its  corporate  duties,  if  am- 
ple provision  for  them  is  made  by  general 
statutes.  Bulger  v.  Eden,  82  Me.  352,  19 
Atl.  829,  9:205 

6.  The  power  of  the  city  of  Portland,  Ore- 
ifon,  to  lay  necessary  sewers  and  drains  is 
limited  to  cases  where  the  benefits  to  the 
property  accommodated  thereby  will  be 
equal  to  or  in  excess  of  the  cost  of  their 
construction.  Poulsen  v.  Portland,  16  Or. 
4.50,  19  Pac.  450,  1:673 
Appropriation  for. 

lender  Power  of  Eminent  Domain,  see  Emi- 
nent Domain,  131-135. 

7.  The  disposal  of  sewage  from  a  number 
of  cities  and  towns  containing  one  sixth  of 
the  population  of  the  state  is  a  matter  of 
general  public  utility  for  which  the  legisla- 
ture can  properly  appropriate  money  from 
the  state  treasury.  Re  Kingman.  153  Mass. 
.566,  27  N.  E.  778,  12:417 
Private  drains. 

In  City  Streets,  see  Highways,  69,  70, 

8.  The  power  of  municipal  authorities 
over  streets  extends  to  the  granting  of  per- 
mission to  a  private  person  to  lay  an  under 
drain  therein  from  his  premises  without  con- 
sent of  other  persons  who  own  abutting  lots 
as  well  as  the  soil  of  the  street  over  which 
the  drain  runs.  Wood  v.  McGrath,  150  Pa. 
451,  24  Atl.  682,  16:  715 
Liability  of  petitioners. 

9.  Under  a  statute  authorizing  county 
commissioners,  on  a  petition  of  one  third 
of  the  landowners  upon  any  water  course 
for  a  distance  of  not  less  than  5  miles  up 
and  down  the  stream,  to  make  contracts  for 
drainage,  and  impose  the  proper  assessments 
upon  the  various  properties  benefited,  where 
such  contracts  are  thus  made,  and  the  work 
done  according  to  specifications,  but  no  as- 
sessments can  be  made  because  it  proves 
!  hat  the  work  does  not  benefit  any  property, 
the  contractors  may  recover  against  the  pe- 
titioners who  put  the  proceedings  in  motion, 
but  not  against  the  commissioners  or  land- 
•wners  who  did  not  join  in  the  petition. 
Vloore  V.  Barry.  .W  S.  C.  530,  9  S.  E.  589. 

4:  294 

10.  The  inhabitants  of  a  city  who  call 
upon  it  to  construct  and  care  for  a  local 
improvement — such  as  a  sewer — which  it  has 
the  legal  authoritj-  to  construct  and  to  con- 
trol, and  who  use  the  improvement  after  its 
.•ompletion  for  the  purpose  and  in  the  way 
prescribed  by  law,  are  not  liable  jointly  with 
the  city  for  the  damages  wliich  result  to 
t  bird  parties  from  the  negligence  of  the  city 
in  the  construction,  management,  or  oper- 
ation of  the  betterment.  Carmichael  v.  Tex- 
arkana,  54  C.  C.  A.   179.  116  Fed.   845, 

58:  911 


IT.  Procedure. 

I  "or  Editorial  Notes,  see  infra.  IV.  §  4. 

11.  A  resolution  adopted  for  the  purpose 
>f  reimbursing  a  municipal  corporation  for 
I  he  cost  of  a  sewer  for  which  it  has  paid, 
.ind     which     iiuthorize*!    .nny    person     whose 


premises  adjoin,  or  are  on  a  line  witli,  the 
sewer  to  connect  therewith  by  paying  a  cer 
tain  sum  into  the  city  treasury,  will  include 
property  on  a  parallel  street,  whicli  is  con 
nected  with  the  sewer  through  a  private  lat 
eral   which   has   been  laid   in   a   connecting 
street.     Fergus   Falls   v,   Edison,   94   Minn, 
121,  102  N.  W.  218,  70:  238 

12,.  The  description  of  a  proposed  drain 
in  the  petition  therefor  need  not  be  set  out 
with  precise  accuracy,  but  is  suflScient  if  the 
starting  point,  course,  and  terminus  are 
stated  with  approximate  accuracy.  State  ex 
rel.  Utick  v,  Polk  County  Comrs,  87  Minn. 
325,  92  N.  W.  216,  60:  161 

13.  The  legislature  may  constitutionally 
confer  upon  county  auditors  and  surveyors 
power  to  receive  petitions  for  the  cleaning 
of  drainage  ditches,  and,  upon  receipt  of 
such  a  petition,  to  examine  the  ditch  and 
pass  upon  the  necesaity  of  cleaning  it,  esti- 
mate the  expense  and  apportion  the  cost 
thereof  according  to  benefits  among  the 
landowners  along  the  line  of  the  ditch  who 
were  assessed  for  the  original  construction 
thereof,  and  appoint  a  day  for  a  hearing  of 
the  matter,  and  give  notice  thereof  to  all 
parties  affected  by  the  assessment,  after 
which  the  auditor  shall  enter  upon  a  journal 
the  assessments  as  approved  by  him,  and 
place  such  assessment  upon  the  duplicate 
against  the  land  upon  which  they  are  as- 
sessed. Taylor  v.  Crawford,  72  Ohio  St.  560, 
74  N.  E.  1065,  69:  805 
Provision  for  review. 

Due  Process  in,  see  Constitutional  Law,  811. 
For  Editorial  Notes,  see  infra,  IV,  §  4. 

14.  Provision  for  appeal  from  an  order  di- 
recting the  construction  of  a  ditch  is  not  es- 
sential to  the  validity  of  a  drainage  stat- 
ute, since  other  modes  of  renewing  the  pro- 
ceeaings  are  open  to  parties  injured  thereby. 
State  ex  rel.  Utick  v.  Polk  County  Comrs. 
87  Minn.  325,  92  N.  W.  216,  60:  161 


m.  Assessments. 

Due  Process  in.  see  Constitutional  Law, 
891a,  891b,  892a,  892b. 

Making  Drainage  Assessment  Superior  Lien, 
as  Impairment  of  Obligation,  see  Con- 
stitutional Law.  1206. 

Injunction  against  Assessment,  see  Injunc- 
tion, 370. 

Interest  on,  see  Interest,  7,  8. 

Issuance  of  Bonds  for  Cost  of,  sec  Public 
Moneys,  58,  59. 

Against  Railroad  Compjiny  for  Drain  Nec- 
essary to  Health,  see  Eminent  Do- 
main,  248. 

See  also  supra,  13:  Public  Improvement», 
74;   Statutes,  239. 

For  Editorial  Notes,  see  infra,  IV.  §§  2,  4. 

15.  A  tax,  under  Mass.  Pub.  Stat.  chap. 
50,  to  build  a  sewer  through  a  street  of 
Cambridge,  is  one  levied  under  the  author- 
ity and  restrictions  of  the  Constitution, 
and  is  a  public  tax  as  being  levied  for  a 
public   object,   but    is   local,   a.s   it   is  to  be 


DRAINS  AND   SEWEHtJ.  III. 


106:  J 


levied  upuii  particulur  lauds.  Mt.  Auburn 
Cenieterv  v.  Cambridge,  150  Mass.  12,  22 
X.   E.   66,  4:  836 

16.  Assessments  for  the  cost  of  a  sewer 
are  an  exercise  of  the  taxing  power,  and  are 
not  within  a  constitutional  provision  as  to 
the  taking  of  private  property  for  public 
use.  Weed  v.  Boston.  172  Mass.  28,  51  N.  E. 
204,  42:  642 

17.  To  provide  a  sewerage  system  for  a 
designated  district,  the  legislature  may, 
within  reasonable  limits,  determine  that  the 
cost  shall  fall  upon  such  district,  and  fix 
the  principles  upon  which  it  shall  be  ap- 
portioned. Smith  V.  Worcester,  182  Mass. 
232,  65  N.  E.  40,  50:  728 

18.  When  the  legislature  places  the  cost 
of  sewers  for  a  particular  district  upon 
such  district,  indiviaual  landowners  with- 
in it  cannot  show  that  they  have  received 
no  benefit,  because  that  question  has  been 
decided  by  the  legislature.  Id. 
Rule  for  making  assessments. 

For  Editorial  Notes,  see  infra,  IV.  §  2. 

19.  The  legislature  may  impose  upon 
property  fronting  upon,  or  connecting  with, 
A  sewer  improvement,  an  assessment  of  a 
fixed  sum  per  linear  foot,  without  giving 
any  hearing  as  to  the  justice  of  such  rule 
of  apportionment.  People •  ex  rel.  Scott  v. 
Pitt,  169  N.  Y.  521,  62  N.  E.  662.        58:  372 

20.  The  cost  of  a  drainage  improvement 
may  be  assessed  upon  the  property  bene- 
fited. Sissin  V.  Buena  Vista  County.  128 
Towa.  442.  104  X.  W.  454,  70:  440 

'>!  ihe  assessment  .  of  the  expense  of 
constructing  a  drain  upon  other  landown- 
ers deemed  benefited  thereby,  as  well  as 
unon  the  petitioner,  for  which  provision  is 
made  by  N.  Y.  Laws  1895,  chap.  384,  per- 
mitting an  owner  of  agricultural  lands  to 
institute  proceedings  for  the  drainage  of 
such  lands,  or  the  protection  thereof  from 
overflow,  by  the  construction  of  drains  or 
dykes  upon  the  lands  of  other  persons,  is 
not  authorized  by  N.  Y.  Const,  art.  1,  § 
7,  providing  for  the  passage  of  general 
laws  for  the  construction  of  such  drains 
and  dykes  since  the  Constitution  contem- 
plates that  the  expense  shall  be  borne  by 
the  petitioner.  Re  Tuthill.  103  N.  Y.  133. 
o7  N.  E.  303,  49:  781 

22.  An  assessment  of  an  annual  charge 
for  the  use  of  a  common  sewer  under  Mass. 
Pub.  Stat.  chap.  50,  §§  1-3,  authorizing 
just  and  equitable  annual  charges  or  rents 
for  the  use  of  such  sewers  to  be  paid  by 
everyone  who  enters  his  sewer  into  the  com- 
mon sewer,  is  not  unconstitutional 'because 
of  the  fact  that  the  person  assessed  there- 
for had  previously  paid  part  of  the  cost  of 
building  the  sewer,  if  the  assessment  for  its 
use  is  proportional  to.  and  not  in  excess  of, 
the-  benefits  received  therefrom.  Carson  v. 
Sewerage  Comrs.  175  ^fass.  242.  56  N.  E.  1, 

48:  277 
Requiring    payment     for    connection     with 
sewer. 

23.  A  municipal  corporation  which  has 
constructed  a  system  of  sewers  with  a  view 
to  assessing  a  portion  of  the  cost  equally 
upon  abutting  property  may.  where  a   por 


tion  of  the  assessmeut.-s  are  paid  and  a  por 
tion  successfully  resisted,  require  as  a  con 
dition  to  the  use  of  the  sewer  by  those  so 
resisting  that  they  pay  a  sum  equal  to  that 
paid  by  others  toward  its  construction,  un- 
der authority  to  prescribe  rules  and  regu- 
lations for  the  tapping  of  sewers.  Herr 
mann  v.  State  ex  rgl.  Cooper,  54  Ohio  St. 
506,   43   N.  E.   990,  32:  734 

24.  A  municipal  corporation  which  has 
borne  the  expense  of  constructing  a  sewer 
may,  until  it  is  reimbursed  the  amount  of 
its  outlay,  require  persons  making  connec- 
tions therewith  to  pay  for  the  privilege. 
Fergus  Falls  v.  Edison,  94  Minn.  121,  102 
X.  W.  218,  70:  238 
Apportioning  cost  of  sewage  disposal  be- 
tween municipalities. 

25.  Benefit  to  property  is  not  the  only 
consideration  to  be  regarded  in  apportion- 
ing among  cities  and  towns  the  expense  of 
a  system  of  sewage  disposal,  but  there  are 
many  elements  to  De  considered,  some  of 
which  are  the  exigencies  or  special  need  of 
such  improvements,  the  area  to  be  accom- 
modated, the  present  or  probable  popula- 
tion and  wealth,  the  value  of  the  land,  and 
its  adaptability  for  homes  and  other  uses. 
Be  Kitinrman.  153  Mass.  566,  27  N.  E.  778, 

12:  417 

26.  No  rule  need  be  laid  down  by  the  leg- 
islature for  the  guidance  of  commissioners 
in  making  an  apportionment  among  cities 
and  towns,  subject  to  acceptance  by  a 
court,  of  the  expense  of  a  system  of  sew- 
age disposal,  other  than  to  direct  them  to 
determine  it  as  they  shall  deem  just  and 
equitable,  where  the  state  Constitution 
gives  power  to  make  "all  manner  of  whole- 
some orders,  laws,"  etc..  not  repugnant 
thereto.  Id. 
Remedy  for  erroneous  assessment. 

27.  Where  a  statute  providing  for  drain- 
age assessments  provides  an  adequate  rem- 
edy in  case  of  an  erroneous  assessment,  that 
remedy  is  exclusive;  and  parties  who  neg- 
lect to  pursue  it  will  be  conclusively  pre 
sumed  to  be  contented  with  the  assess- 
ment. Wabash  E.  R.  Co.  v.  East  Lake 
Fork  S.  D.  Dist.  134  ni.  384.  25  N.  E.  781. 

10:  285 
Cost    of    rebuilding   bridge    necessarily    re- 
moved. 
Removal    of    Bridge    by    Drainage    District, 
see  Bridges,  3. 

28.  Public  corporations  having  control  of 
public  roads  are  not  excluded  from  a  pro- 
viso to  the  section  of  a  drainage  statute 
authorizing  the  assessment  of  benefits  ac- 
cruing to  public  roads,  which  provides  that 
the  cost  of  rebuilding  bridges  shall  not  be 
considered,  but  that  they  shall  be  rebuilt 
at  the  expense  of  the  corporate  authorities 
of  the  road,  by  the  facts  that  the  preced- 
ing proviso  provides  for  a  lien  against  "any 
railroad  company  or  private  corporation," 
and  that  the  proviso  in  question  relates 
to  the  sum  assessed  against  "either  of  said 
corporations."  where  public  corporations 
are  specifically  referred  to  in  the  principal 
part  of  the  section  and  in  the  first  pro- 
viso,  and    such   preceding  proviso  specifical- 


1064 


DRAINS  AND   SEWERS.  IV 


]y  provides  for  recovery  of  assessments 
against  townships.  HefiFner  v.  Cass  &  Mor- 
gan Counties,  193  HI.  439,  62  N.  E.  201, 

58:353 

29.  The  cost  of  replacing  a  county  bridge, 
necessarily  removed  by  drainage  commis- 
sioners in  the  prosecution  of  their  work, 
is  not  within  a  constitutional  provision 
that  the  cost  of  the  drainage  work  shall 
be  paid  for  by  special  taxation  upon  the 
property  benefited  thereby.  Id. 

30.  Authorizing  drainage  districts  to  de- 
stroy county  bridges  when  necessary,  with- 
out requiring  their  re^jlacement,  does  not 
violate  constitutional  provisions  authorizing 
the  vesting  in  municipal  authorities  of 
power  to  assess  taxes  which  shall  be  uni- 
form, and  forbidding  the  legislature  to  im- 
pose taxes  upon  municipal  corporations  or 
their  inhabitants  for  corporate  purposes. 

Id. 
Enforcement;   lien. 

Joinder   of   Plaintiffs-   to   Enjoin   Collection, 
see  Parties,  122,  123. 

31.  Under  the  Illinois  drainage  act  of 
1885,  persons  claiming  land  by  purchase 
under  a  trust  deed  cannot  contest  the  va- 
lidity of  a  drainage  assessment  upon  the 
ground  that  the  drainage  district  was  not 
properly  organized,  because  the  trustees, 
who  were  alleged  to  have  held  the  legal 
title  to  the  land  at  the  time  of  the  organ- 
ization of  the  district,  were  not  notified 
of  the  proceedings  for  such  organization, 
where  the  bill  filed  for  the  enforcement  of 
the  assessment  alleges  the  due  organiza- 
tion of  the  district,  and  the  allegation  is 
fully  and  unequivocally  admitted  by  such 
persons  in  their  answer.  Wabash  E.  R.  Co. 
T.  Eaat  Lake  Fork  S.  D.  Dist.  134  111.  384, 
25  N.  E.  781,  10:  285 

32.  An  admission  in  an  answer  to  a  bill 
to  enforce  payment  of  a  drainage  assess- 
ment, that  notice  of  the  levying  of  the  as- 
sessment was  mailed  to  each  landowner, 
includes  persons  named  as  trustees  in  a 
trust  deed  of  land  assessed,  if  ther  are  to 
be  deemed  the  owners  of  the  property.    Id. 

33.  Under  an  act  providing  that  a  drain- 
age assessment  shall  be  considered  a  lien 
upon  every  tract  of  land  or  property  as- 
sessed in  the  district,  the  lien  attaches  to 
the  land  itself,  irrespective  of  the  interest 
of  the  various  owners,  and  is  paramount 
to  claims  under  a  prior  deed  of  trust  of 
the  property.  Id. 

34.  The  portion  of  the  track  or  right  of 
way  of  a  railroad  company  which  lies  within 
a  drainage  district  may  be  sold  for  the  pay- 
ment of  a  drainage  assessment   thereon. 

Id. 


IV.  Editorial    Notes. 

Public  Improvements,  Generally,  see  Public 
Improvements,    V. 

As  to  Pollution  of  Water  Course,  General- 
ly,  see  Waters,  IV.   §  26. 

Right  and  Duties  of  Municipal  Corporation 
with  Respect  to  Surface 
Water,  see  Waters.  TV.  5 
32. 


§  I.  Generally. 

Authority  of  legislature  over;  taxation  for 
construction  of.  12:  417.* 
Statutory  regulations.  9:  205.* 
Right  and  duty  to  connect  property  with 
drain  or  sewer.  70:  238. 
Municipal  regulation  of  sewers  as  nuisances. 

38:  319. 
Injunction  by  municipality  against  nuisance 

from    sewers.      41:  325. 
Injunction  against  municipalitv  as  to.     23: 

301. 
Implied  reservation  of.    13:  657.* 
Drainage  of  private  lands  as  public  purpose 
justifying  exercise  of  emi- 
nent   domain.      49:  781. 
Construction  in  streets  as  additional  burden 

on  easement.     17:  479. 
Poiwer  of  municipality  to  authorize  use  of 
highway  for  private  drain. 
16:  715. 
Liability    of    counties    for    injury    to    real 

property    from.     39:  69. 
Liability  of  landlord  to  third  persons  as  to 

condition    of.      26:  202. 
Draining  ponds.     21:  605. 
Presumption   as  to   statutory   authority   to 
commit  nuisance  by  sew- 
erage  system.     70:  580. 
§  2.   Who  liable  for  expense  of  drainage; 

maintenance. 
Basis  for  liability.     58:  353. 
Consideration    of    principles    involved.    58: 

354. 
The  rule  that  assessment  depends  on  bene- 
fit.    58:  358. 
Assessment  according  to  benefit  valid. 

58:  358. 
Adjustment  of  the  assessment.    58:359. 
Benefit  must   be  certain.     58:  359. 
Indirect  benefits.     58:  360. 
What  benefits  considered.   58:  362. 
Relation  between  benefits  and  as- 
sessment.    58:  362. 
Excessive  assessment.     58:  363. 
Lands  sufficiently  drained.  58:  367. 
Set-off    of    benefits    and    injuries. 

58:  370. 
Omission  of  benefited  land.  58:371. 
Drainage  districts.     58:  372. 
Area  assessments.     58:  374. 
Public  liability.     58 :  378. 
Assessment  runs  with  the  land.    58:  379. 
Exemptions.     58:  380. 
Renewal   and  maintenance.     58:  383. 
Maintenance   of    drainage   ditches.     69:  805. 
§  3.  Duty  and  liability  of  municipality  as 

to  drainage. 
Right  and  duty  to  provide.     61 :  673. 
In  general.     61 :  673. 
Special   circumstances.     61 :  675. 
Delegation    by    citv    council   of   power. 
20:  653. 
Location.     61 :  677. 

In  streets.     61 :  677. 
On  private  property.     61:  679. 
Construction.     61 :  683.  . 
Sufficiency.     61 :  683. 
Defective    construction.      61:  688. 
For  private  benefit.     61 :  689. 
Extension.     61:  690. 


DRAINS  AND  SEWERS,  IV.  (Ed.  Notes. j 


1060 


Outlet.     61 :  690. 

Must  be  provided.    61 :  690. 
Inadequacy    or    negligent    location    of. 

61:  691. 
Use   of   stream   as.     61:  693. 
Increasing  flow.     61 :  693. 
Pollution.      48:691;    61:694. 
Use  of  canal.     61 :  696. 
Maintenance.     61:  696. 
Repair.      61 :  696. 
Keeping   unobstructed.     61:  698. 
Sanitary     precautions;     odors;     gases. 

61 :  699. 
Other   matters.     61:  700. 
Liability  for  injuries.    61:  701. 
In  general.     61:  701. 
By  reason  of  private  or  adopted  drain. 

61:  702. 
By  using  stream  as  sewer.    61:  703. 
By  negligence  generally.     61:  704. 
For    negligent    construction.      5:  126.* 
For  neglect  to  repair.     5:  127.* 
Open    drains.      61 :  705. 
Defenses.     61 :  706. 

Consent  or  cqntributory  negligence, 

61:  706. 
Flood.     61 :  708. 
Notice.     61 :  710. 
Parties.     61:711. 

Who  may  sue.     61:711. 
Defendants.     61 :  711. 
Limitation.     61:  711. 
Damages.      61:  712. 

Effect  of  limitation  of  municipal  indebted- 
ness  upon    acquisition    of 
sewer    system.      59:  604. 
§  4.   Procedure  for  establishment   of. 
General  observations  as  to  right  to  estab- 
lish.    60:  161. 
Institution  of   proceedings,     60:  166. 
By  petition  of  landowner.     60:  166. 
By   municipal  ordinance,     60:  168. 
By    organization    of    drainage    district. 
60:  169, 
Jurisdiction   over   proceedings.     60:  172. 
In  general.    60:  172. 
Of  courts.     60:  174. 
Conflicting  authority,     60:  175. 
Plans  and  specifications.     60:  176. 
Practicability,     60:  176. 
In  general.    60:  176. 
Choice  of  route.     60:178. 
Lack  of  outlet.     60:181. 
Expensiveness.     60:  183. 
Necessity  of  designating.     60:  183. 
In   general.     60:  183. 
Estimates  of  cost.    60:  184.  , 
Route.    60:  185. 
Dimensions.     60:  186. 
Material    and    openings.      60:  186. 
Departure  from.    60:  187. 
Route.      60:  187. 
Plans.     60:  18S. 

Default  of  contractor.     60:  190. 
Departure  from  statute,     60:  191. 
Necessity  must  be  shown.     60:  191. 

To  make  establishment  legal.     60:  191. 
To    uphold    assessment.      60:  193. 
Who  to  determine  necessity.-    60:  193. 
Acquisition  of  right  of  way.    60:  195. 
Right    to   acquire.     60:  195. 


How  acquired.  60:  197. 

By  contract.     60:  197. 
By    eminent    domain.      60:  198. 
Compensation  must  be  made.     60:  199. 
In  general.     60:  199. 
When   and   how   made.     60:  201. 
Procedure.     60:  202. 
Measure   of   damages.     60:  204. 
Completion  of  improvement.     60:  206, 

Statutory  provisions  must  be  followed. 

60:  206. 
Jurisdictional  facts.     60:  207, 
Effect   of   irregularities.     60:  208. 
Notice;  hearing.     60:  209. 
General  rules.     60:  209. 
To  whom.     60:  212. 
Of  what.     60:  214. 
Form.    60:  214. 
Hearing.      60:  216. 
Other   matters.     60:  216. 
Letting  contract.     60:  217. 
Remonstrance,     60:  218. 
Statutory  matters.     60:  219. 
Details    of    work.      GO:  220. 
Wrongful   acts.     60:  221. 
Compensation   for  injury.     60:  223. 
Other   matters.     60:  223. 
Supervision  by  court.     60:  224. 
By  appeal.     60:  224. 
On  collateral  attack.     60:  225. 
Acquisition  of   funds.     60:  226. 

Use  of  public  funds  or  credit.     60:  226. 
Local  assessment.     60:  227. 

Authority   to   make.     60:  227. 
What  is  liable.     60:  228. 
Procedure;    method   of  assessment. 

60:  232. 
Apportionment     and     equalization. 

60:  234. 
For  what  may  be  laid.  60:  234. 
Rights  of  property  owner.    60:  235. 
Other  matters.     60:  237. 
Lien,     60:  237. 
Enforcement.    60:  238. 
Collection  and  distribution  of  fund.  60: 

240. 
Curing  defects.     60:  240. 
Contesting   assessment.     60:  241. 
Who  may  contest,    60:  241, 
Method   of   contesting.      60:  242. 
Grounds  of  contesting.     60:  243. 
Defects  in  work  as  a  defense  to  assess- 
ment.    56:919. 
Benefit    must   be    paid.      60:  246. 
Laches.     60:  246. 
Waiver.     60:  246. 
Estoppel.     60:  247. 
Suit  to  recover  back  monev  paid.  60: 

248. 
Other  matters,    60:  249. 
Abandonment   of   drain.     60:  249. 
§  5.  Pollution  or  interference  with  streams 

by. 
Right  of  riparian  owner  to  use  stream  for 
sewer   purposes.      41:751. 
Liability      for     intercepting     subterranean 

waters  by.  19:  94. 
Right  of  municipality  to  drain  sewage  into 
waters.     48:  691;    61:694. 
Liability  of  municipality  for  using  stream 
as   a   sewer.     61 :  703. 


1066 


§  6.  Illinois  drainage  acts. 
Jurisdiction    of    drain    commissioners 

285/ 
Formation  of  drainage  district.    10:  285.* 
Notice  of  classification  of  lands.     10:  285.* 
Assessments   for  benefits.     10:  286.* 
Classification  of  highways  and  railroads  for 

assessment.     10: 286.* 
Xotice  of  assessment.    10:  287.* 
Correcting  of  assessment.     10:  287.* 
Lien  of  assessment.    10:  287.* 

Foreclosure  of  lien.     10:  287.* 
Appeals.    10:  288.* 
Application    for    judgment    on    assessment. 

10:  288.* 
Enforcement  of  assessment.     10:  288.* 


DRAWBACK— DRUGS  AND  DRUQGISTcJ 
10: 


DRAWBACK. 

To  Passengers,  see  Carriers,  633,  634,  637. 


DRAWBRIDGE. 


Negligence  of  Gateman  at,   see  Highways, 
239. 
'  Obstruction  of  Navigation  by,  see  Waters, 
156-158. 
See  also  Bridges,  4. 


DRAWING. 
Of  Grand  Jury,  see  Grand  Jury,  in. 


DRAYMEN. 


License  of,  see  License,  134. 
Authority    of,    as    Agent    for    Shipper,    see 
Principal  and  Agent,  14. 

Editorial  Notes. 

As    independent    contractors.      65:  468. 


DRATS. 

Prohibiting  Use  of  Certain  Streets  by,  see 
Municipal  Corporations,   136. 


DREDGING. 


Damages  for  Injury  by,  see  Damages,  426. 
Right    of    Wharf    Owner    to    Dredge   Adja- 
cent Land,  see  Waters,  193. 


DRIVER. 

Employer's  Liability  for  Negligence  of.  see 
Master   and    Servant.   646.   647. 


Employer's    Liability    for    Assault    by,    see 

Master  and  Servant,  671. 
Imputing  Negligence  of,  to  Passenger,  see 

Negligence,  255-265;  IIL  §  13. 

Editorial  Notes. 

Imputation  of  negligence  of,  to  passenger. 
1:  152;*    6:  143;*    9:  157.* 

Whether  negligence  imputable  to  wife  in- 
jured while  riding  with 
husband.    14:  733. 


DRIVEWAY. 

Easement  in,  see  Easements,  35,  83. 


DROVERS. 

Editorial  Notes. 
As  independent  contractors.  65:  468. 

«~—^ 

DROVER'S  PASS. 

See  Carriers,  627,  628. 

Editorial  Notes. 

Rights  of  person  riding  on.    22:  794. 


DROWNING. 


SuflSciency  of  Proof  of,  see  Evidence,  2218. 

Death  of  Insured  by,  see  Insurance,  1003, 
1004. 

Municipal  Liability  for,  see  Municipal  Cor- 
porations, 437-439,  560-562. 

Of    Children,    Liabilitj'  for,    Generally,  see 
Negligence,    123,    143-148. 

Contributory  Negligence  of  Person  Drowned, 
see  Negligence,  206. 

Proximate  Cause  of,  see  Proximate  Cause, 
II.  e. 

Editorial  Notes. 

As  accident.     30:  211. 

♦  «  » 


DRUGS  AND  DRUGGISTS. 

Assault  by  Druggist,  see  Assault  and  Bat- 
tery, 11. 

Discrimination  as  to,  see  Constitutional 
Law,  520,  521. 

Punitive  Damages  against,  see  Damages, 
52. 

Unlawful  Sale  of  Liquor  by,  see  Intoxicat- 
ing Liquors,  TIL  d. 

Liabilitv  for  Libel,  see  Libel  and  Slander, 
63,  "^64. 

License  fer  Selling  Drugs,  see  License,  157. 

Partial  Invalidity  of  Statute  as  to.  see 
Statutes.   lOfi. 


DRUG  STORE— DRUNKENNESS 


1067 


Liability. 

See  also  infra.  Editorial  Notes. 
Proximate  Cause  of   Death  by   Drugs,   see 
Proximate    Cause,    145-147. 

1.  A  druggist  is  not  relieved  from  liabil- 
ity for  injuries  caused  by  a  prescription 
negligently  put  up  by  the  fact  that  the  neg- 
ligence was  that  of  a  registered  pharma- 
cist employed  by  him,  which  class  alone  is 
allowed  by  statute  to  fill  prescriptions.  Bur- 
gess V.  Sims  Drug  Co.  114  Iowa,  275.  86 
N.  W.  307,  54:364 

2.  A  druggist  is  not  guilty  of  negligence 
in  selling  to  customers  proprietary  medi- 
cines in  the  package  and  under  the  label 
of  the  proprietor  or  patentee,  without  mak- 
ing an  analysis  of  the  contents.  ^West  v. 
Emanuel,  198  Pa.  180,  47  Atl.  965,     53:  329 

3.  The  duty  to  put  a  label  containing 
the  word  "poison"  on  every  poisonous  liquid 
or  substance,  which  is  imposed  on  drug- 
gists by  Shannon's  (Tenn.)  Code,  §  6745, 
does  not  extend  to  medicines  compounded 
upon  the  prescription  of  a  physician,  though 
they  contain  poison.  Wise  v.  Morgan,  101 
Tenn.  273,  48   S.  W.  971,  44:  .548 

4.  A  person  is  not  liable  on  the  ground 
of  injuring  one  in  danger,  for  death  follow- 
ing his  sale  of  chloroform  to  an  intoxi- 
cated person  who  is  not  shown  to  be  abso- 
lutely without  mind  to  the  knowledge  of 
defendant.  Mever  v.  King.  72  Miss.  1,  16 
So.  245,  ■  35:  474 

5.  The  sale  of  chloroform  to  a  minor  in 
violation  of  Miss.  Code  1892,  §  1252,  will 
not  render  the  seller  liable  for  the  minor's 
death  from  drinking  it,  if  the  sale  was  not 
the  proximate  cause  of  the  death.  Id. 

6.  One  who  by  mistake  sells  to  a  person 
a  noisonous  drug  for  a  harmless  medicine 
is  liable  to  a  third  person  who  without  neg- 
ligence takes  the  drug  for  medicine,  for 
damages  resulting  to  him  therefrom,  not- 
withstanding there  is  no  privity  of  contract 
between  the  seller  of  the  drug  and  such 
third  person.  Peters  v.  Jackson.  50  W. 
Va.  644.  41  S.  E.  190,  57:  428 

7.  No  liability  attaches  to  a  druggist 
for  injuries  to  a  customer  for  lack  of  in- 
struction as  to  the   safe  method  of  hand- 

■T  iin  article  called  for  by  and  sold  to 
him,  where  he  has  reached  the  age  of  dis- 
cretion, and  is  apparently  in  possession  of 
his  mental  faculties,  and  there  is  nothing 
connected  with  the  transaction,  or  previously 
known  to  the  seller,  indicating  that  the 
would-be  purchaser  cannot  safely  be  in- 
trusted with  the  substance.  Gibson  v.-  Tor- 
bert,  115  Iowa.  163.  88  N.*W.  443,       56:  98 

8.  That  a  letter  ordering  phosphorus  is 
incorrectly  worded  and  spelled,  and  that 
the  writinw  is  poor,  is  not  of  itself  suffi- 
cient to  charge  the  seller  with  notice  that 
the  would-be  purchaser  cannot  be  trusted 
with  the  article  without  instruction  as  to 
how  to  handle  it  safely,  where  the  letter 
is  also  an  assurance,  to  a  certain  extent 
at  least,  that  the  writer  knows  the  sub- 
stance he  is  ordering.  Id. 
Contributory  negligence  of  purchaser. 

9.  Contributory  negligence  is  chargeable 
to  a  minor  who  takes  chloroform  when  so 


into.\icaied  as  to  be  incapable  of  any  reason- 
able degree  of  caution  or  prudence,  and  who 
is  old  enough  to  earn  as  a  clerk  in  a  gro- 
cery store  a  reasonable  and  substantial 
compensation.  Meyer  v.  King,  72  Miss.  1, 
16  So.  246,  35:  474 

Editorial  Notes. 

Regulation  of  sale  of  intoxicating  liquor  by. 

10:  81.» 
Liability  of  vendor  of,  for  negligence.    21: 

139. 


DRUG   STORE. 


Denial  of  Civil  Rights  in,  see  Civil  Rights, 
6. 


DRUMMERS. 


Interstate  Business  of,  see  Commerce,  152- 
163. 

Conflict  of  Laws  as  to  Contract  by,  see  Con- 
flict of  Laws,  284-286. 

Right  to  Expel  from  Hotel,  see  Innkeepers, 
35,  36. 

Lien  of  Innkeeper  on  Samples  of,  see  Inn- 
keepers, 44. 

License  of,  see  License,  141,  148. 

Ordinance  against  Solicitation  by,  in  De- 
pot, see  Municipal  Corporations,  240. 

Authority  to  Indorse  Checks,  see  Principal 
and  Agent,  36. 


DRUMMING. 


On    Street,    see    Constitutional    Law,    765; 
Municipal    Corporations,    142-144. 


DRUNKARDS. 


Sale  of  Liquor  to,  see  Intoxicating  Liquors, 
137-139,   169,   172,  174,  176. 

Revocation  of  Trust  Created  by,  see  Trusts, 
93. 

See  also  Drunkenness;  Habitual  Drunk- 
ards. 


DRUNKENNESS. 


Of  Person  Defrauded,  see  Action  or  Suit,  23. 
Of  Juror  as  Reversible  Error,  see  Appeal 

and  Prror,  1128. 
Arrest  for,  see  Arrest,  20. 
Validity    of   Note    by    Intoxicated    Person, 

see  Bills  and  Notes,  20. 
As  Breach  of  the  Peace,  see  Breach  of  the 

Peace. 
Of   Passenger,    see    Carriers,    346-350,   353- 

356,  427,  430-441,  452.    153;   Proximate 

Cause,  74,  75;  Trial.  298-300,  314. 
Of  Person  Struck  bv  Train,  see  Railroads, 

134.   155.   156.   271-273. 


1068 


DUCKING  STOOL— DUMMY  RAILROADS 


Disclosure  of  Source  of  Liquors  by  Person 
Convicted,  see  Constitutional  Law,  825. 

Refusal  to  Disclose  Source  of,  as  a  Contempt, 
see  Contempt,  41. 

Delegation  of  Power  as  to,  see  Counties,  42. 

As  Affecting  Criminal  Responsibility,  see 
Criminal  Law,  20,  24-28. 

Of  Juror  on  Criminal  Trial,  see  Criminal 
Law,  103. 

Of  Injured  Person  Retarding  Recovery,  Ef- 
fect on  Amount  Recovered,  see  Dam- 
ages,  316. 

As  Ground  for  Divorce,  see  Divorce  and 
Separation  III.  c. 

Sale  of  Drugs  to  Intoxicated  Persons,  see 
Drugs  and  Druggists,  4,  9. 

Reputation  for,  see  Evidence,  1759. 

Evidence  to  Prove,  see  Evidence,  2135. 

Of  Person  Defrauded,  see  Fraud  and  De- 
ceit, 6. 

As  Affecting  Guaranty,  see  Guaranty,  2. 

Habitual  Drunkards,  see  Habitual  Drunk- 
ards. 

Effect  of,  on  Right  to  Child,  see  Infants, 
37-39. 

Of  Guest  at  Inn,  Effect  on  Liability  for 
Loss  of  Property,  see  Innkeepers,  17, 
19. 

Accident  to  Insured  During,  see  Insurance, 
1064. 

Slander  in  Charging,  see  Libel  and  Slander, 
28,  29. 

Effect  on  Validitj-  of  Marriage,  see  Mar- 
riage, 30. 

Contributory  Negligence  of  Intoxicated  Per- 
son, see  Negligence,  220-223. 

Impeachment  for,  see  Officers,  162. 

Conversion  of  Property  of  Intoxicated  Per- 
son, see  Trover,  14. 

Editorial  Notes. 

Presumption  as  to  continuance  of.  35:122. 

Voluntary  intoxication  in  extenuation  of 
crime.     8:  33.* 

Municipal  regulation  of,  as  a  nuisance.  39: 
524. 

As   affecting  negligence.     40:  131. 

Evidence  of.     8:   33.* 

What  intoxication  will  excuse  crime.  36: 
465. 

Effect  of  intoxication  on  validity  of  mar- 
riage.    34:  87. 

As  affecting  divorce.     34:  449. 

As  affecting  testamentarv  capacity.  39: 
220. 

Validity  of  contract  made  with  intoxicated 
person.      54:  440. 


DUCKING    STOOL. 

Editorial  Notes. 
A*   cruel  and  unusual  punishment.   35:  .569. 


DUE    BILL. 


Editorial   Notes. 
Clparinrr-house    due-bin.      25;  826. 


DUELING. 

Editorial  Notes. 

Homicide    in    the    commission    of.    63:  377. 

Solicitation  to.    25 :  437. 

Cruel  or  unusual  punishment  for.  35:  571. 


DUE   PROCESS   OF   LAW. 
See  Constitutional  Law,   11.  b. 


DUES. 

What  are,  see  Corporations,  551,  552. 
From  Member  of  Benefit   Association,   see 
Insurance,  III.  h. 

Editorial  Notes. 

Meaning  of.     15:  513. 


DULY. 

Duly,  in  legal  parlance,  means  accord- 
ing to  law,  both  in  form  and  substance.  Th* 
expression  "duly  adjudged"  therefore  means 
adjudged  according  to  law,  and  implies  the 
existence  of  every  fact  essential  to  perfect 
regularity  of  procedure,  and  to  confer  ju 
risdiction  both  as  to  the  subject-matter  and 
the  parties.  Brownell  v.  Greenwich,  114  N. 
Y.  518,  22  N.  E.  24,  4:  685 


DUMMY. 

Vote  of  Stock  by,  see  Corporations,  675. 


DUMMY  RAILROADS. 

Injury  to  Passenger  on,  see  Carriers,  312, 
479. 

As  Additional  Servitude,  see  Eminent  Do- 
main, 432,  433. 

Negligence  of.  Towards  Children,  see  Neg- 
ligence, 133. 

Pleading  Negligence  of,  see  Pleading,  353. 

1.  A  train  pushed  by  a  small  engine  called 
a  "dummy,"  although  exclusively  engaged 
in  carrying  passengers,  whether  run  within 
or  without  the  limits  of  a  municipality,  is  a 
"railroad"  train  within  the  meaning  of  a 
statute  prescribing  regulations  to  be  ob- 
served by  railroads.  Katzenberger  v.  Lawo, 
90  Tenn.  235,  16  S.  W.  611,  13:  185 

2.  A  dummy  railroad  operated  by  steam 
and  running  beyond  the  lines  of  a  munici- 
pality, organized  under  Ala.  act  February 
25,  1887,  which  authorizes  corporations  to 
construct  such  roads  in  a  city  or  town  and 
also  "upon  any  of  the  public  roads  of  any 
r-ounty."  upon  surh  terms  and  in  such  man- 


DUPLICATE  COPIES— DUKESS. 


1069 


ner  as  may  be  authorized  by  the  city  and 
county  authorities  respectively,  is  a  "rail- 
road" witNn  the  meaning  of  Ala.  Code,  § 
1145,  requiring  trains  to  be  stopped  within 
100  feet  of  a  place  where  the  track  crosses 
the  track  of  another  railroad.  Birmingham 
Mineral  R.  Co.  v.  Jacobs,  92  Ala.  187,  9  So. 
320,  12:  830 


DUPLICATE  COPIES. 

Provision   for,  in  Contract  with  City,   see 
Municipal  Corporations,  297. 


DUPLICATE  DRAFT. 


Parol  Evidence  as  to,  see  Evidence,  1156. 
See  also  Bills  and  Notes,  7. 


■♦•» ' 

DUPLICATE  WARRANTS. 

Limitation  of  Action  on,  see  Limitation  of 
Actions,  182. 


DUPLICITY. 


In  Indictment,  see  Indictment,  etc.,  U.  d. 
Tn  Pleading,  see  Pleading,  I.  V. 


DURESS. 

Recovery  Back  of  Payments  Made  under, 
see  Assumpsit,  48-51,  64-66,  and  also 
infra.  Editorial  Notes,  §  1. 

In  Execution  of  Note,  see  Bills  and  Notes, 
30. 

Def€nse  against  Bona  Fide  Holder  of  Note, 
see  Bills  and  Notes,  213. 

To  Compel  Commission  of  Crime,  see  Crimi- 
nal Law,  12. 

In  Articles  of  Separation,  see  Divorce  and 
Separation,  124. 

Commission  of  Homicide  under,  see  Homi- 
cide, 29. 

Indictment  for  Obtaining  Money  by,  see 
Indictment,  etc.,  65. 

In  Surrender  of  Insurance,  see  Insurance, 
639. 

In  Compromise  of  Insurance,  sec  Insurance, 
1281. 

In  Appearance  in  Suit,  see  Judgment,  156. 

As  Ground  for  Annulment  of  Marriage,  see 
Marriage,  56.  58,  59,  and  also  infra, 
Editorial  Notes,  §  1. 

Question  for  Jury  as  to  What  Constitutes, 
see  Trial,  504. 

Instructions  as  to,  see  Trial,  803. 

Setting  Aside  Deed  for,  see  Trusts,  64. 

1.  A  person  is  not  under  duress  for  which 
his  deed  will  be  set  aside,  if  he  is  not 
threatened  with  great  bodily  harm  nor  with 
a  criminal  prosecution  in  case  he  fails  to 
sign  the  deed,  although  the  pressure  under 


which  he  is  placed  is  about  as  effectual  as 
though  force  or  criminal  prosecution  were 
threatened.  Stokes  v.  Anderson.  118  Ind. 
533,  21  N.  E.  331,  4:  313 

2.  A  plaintiff  cannot  impeach,  as  pro- 
cured by  duress,  an  agreement  which  he 
insisted  upon  making  a  part  of  his  case, 
and  stated  was  material  thereto.  Craig  v. 
Ginn,  3  Penn.  (Del.)   117,  48  Atl.  192, 

53:  715 
Threats  generally. 
See  also  infra,  8,  11. 

3.  A  contract  With  a  party  incapable 
of  exercising  his  free  will  by  reason  of 
threats  made  by  the  other  for  the  purpose 
of  producing  such  condition  and  obtaining 
the  contract  may  be  repudiated  on  the 
ground  of  duress,  at  the  option  of  the  party 
threatened.  Galusha  v.  Sherman,  105  Wis. 
263,  81  N.  W.  495,  47:  417 

4.  Threats  which  so  act  upon  a  person 
as  to  make  him  incapable  of  exercising  his 
free  will  in  the  making  of  9,  contract  may 
constitute  duress  which  will  avoid  the  con 
tract,  though  they  may  not  be  such  as 
would  have  that  effect  upon  a  person  of 
ordinary  firmness  and  courage.  Id. 

5.  A  purchase  of  stock  at  an  exorbitant 
price,  to  secure  control  of  the  corporation 
will  not  be  rescinded  on  the  ground  that 
the  seller  had  threatened  to  break  his  con 
tract  to  give  the  purchaser  control  of  the 
stock  for  voting  purposes,  and  sell  it  to  the 
opposing  faction.  Gage  v.  Fisher,  5  N.  D. 
297,  65  N.  W.  809,  31 :  557 

6.  A  threat  by  a  bank  to  institute  at- 
tachment proceedings  to  collect  a  note  not 
yet  due,  unless  security  is  given,  in  conse 
quence  of  which  the  maker  of  the  note 
authorizes  its  satisfaction  out  of  his  de 
posit  account,  is  not  such  duress  as  will 
entitle  the  maker  to  damages  in  case  of  the 
bank's  refusal  to  apply  the  same  money  in 
satisfaction  of  his  outstanding  check.  Flack 
v.  National  Bank  of  Commerce.  8  Utah,  193, 
30  Pac.  746,  17:  683 

7.  One  who  conveyed  real  estate  to  a 
bank  by  warranty  deed  absolute  in  form, 
but  intended  to  secure  an  indebtedness, 
may  recover  a  sum  in  excess  of  the  amount 
justly  due,  paid  to  obtain  a  reconveyance, 
where  the  bank  assumed  to  be  the  owner 
of  the  property  and  denied  the  debtor  any 
right  or  interest  therein,  and  had  begun  a 
proceeding  to  dispossess  him,  which  it 
threatened  to  appeal,  if  the  judgment  of  the 
trial  court  was  unfavorable,  to  the  court 
of  last  resort,  where  it  would  probably  re- 
main imdisposed  of  for  years,  and,  when 
the  debtor,  in  great  financial  distress  and 
with  no  means  of  meeting  his  indebted- 
ness, save  by  a  sale  of  the  property,  pro- 
cured a  purchaser  at  an  advantageous  price, 
refused  to  consent  to  the  sale  or  reconvey 
without  the  payment  of  such  sum, — since, 
under  the  circumstances,  the  payment  of 
such  excess  was  made  under  duress  and  com- 
pulsion: and  the  fact  that  at  the  time  of 
such  payment  the  parties  entered  into  a 
written  agreement  in  the  nature  of  a  com 
promise,  which  was  acquiesced  in  by  the 
debtor  in  order  to  gain  control  of  his  prop- 


1070 


DUTIES. 


erty  and  extricate  himself  from  his  finan- 
cial difficulties,  does  not  affect  his  right  to 
recover  the  excess,  as  the  agreement  was 
vitiated  by  duress  for  the  same  reason  and 
to  the  same  extent  as  the  overpayment. 
First  Nat.  Bank  v.  Sargent,  65  Neb.  594, 
91   N.  W.  595,  59:  290 

Of  criminal  prosecution  of  self. 

8.  Written  securities  extorted  by .  means 
of  threats  of  prosecution  for  criminal  of- 
fenses of  which  the  party  threatened  was 
j^uilty  in  fact,  but  which  were  in  .no  man- 
ner connected  with  the  demand  for  which 
compensation  was  sought,  may  De  avoided 
by  the  parties  executing  them,  not  only  in 
the  hands  of  the  original  payee,  but  of  his 
as.signees  having  notice  of  the  circumstances 
under  which  such  securities  were  taken. 
Thompson  v.  Niggley,  53  Kan.  664,  35  Pac. 
290,  26:  803 
Of  criminal  prosecution  of  third  person. 

■^c'l;  also  infra.  12;    and  Editorial  Notes. 

9.  Duress  is  not  a  defense  to  notes  and  a 
ileed  given  by  a  man  to  settle  a  claim 
against  his  son-in-law  and  release  him  from 
arrest  for  felony,  when  he  enters  into  the 
t  rausaction  deliberately,  after  manoeuver- 
ing  for  a  compromise,  and  on  an  Understand- 
ing with  his  daughter  that  the  payment 
-.hall  constitute  an  advancement  to  her. 
Loud  V.  Hamilton  (Tenn.  Ch.)  51  S.  W.  140, 

45:  400 

10.  Papers  executed  to  shield  the  maker's 
>on  from  a  threatened  prosecution  for  a 
felony  of  which  he  is  guilty  are  not  ex- 
cluded under  duress  so  as  to  require  their 
cancelation.  Shattuck  v.  Watson,  53  Ark. 
147,  13  S.  W.  516,  7:  551 

11.  Threats  to  arrest  a  man  for  embez- 
zlement unless  his  wife  will  execute  a 
mortgage  constitute  duress,  which  will  avoid 
the  mortgage  made  by  her,  if  they  are 
sufficient  to  control  her  will.  Mack  v. 
Prang,  104  Wis.  1,  79  N.  W.  770,  45:  407 
Necessity  of  returning  benefits. 

12.  'I'he  defense  of  duress  is  not  condi- 
tioned on  the  restoration  of  notes  and  col- 
lateral which  were  surrendered  when  the 
obligation  in  suit  was  obtained  from  the 
defendant  by  threats  of  prosecuting  her 
husband  for  the  forgery  of  such  collateral, 
where  she,  under  direction  of  a  friend  to 
whom  the  papers  were  delivered,  and  with 
the  knowledge  of  the  plaintiff's  agent  who 
surrendered  them,  gave  the  papers  to  her 
husband,  who  has  since  died,  and  they  can- 
not be  found.  City  Nat.  Bank  v.  Kusworm, 
88  Wis.  188,  59  N.'  W.  564,  26:  48 

Editorial   Notes. 

§  I.  Generally. 

\\niat  constitutes.     7:  551;*  9:  633.» 

By  lien  on  real  property.     16:  376. 

Equitable  relief  from  acts  induced  by  du- 
ress and  coercion.    6:  493.* 

Annulment  of  acts  done  under  duress.     6: 
491.* 

As   afftcting  right   to   recover   back   money 
paid  for  taxes.    2:  626.*  ' 

As  an  excuse  for  crime.     19:  357. 

Duress  of  wife  bv  htisband.     19:  358. 


As  ground  of  injunction  against  judgment. 

30:  802. 
To  avoid  marriage.     43:  814. 
Assumpsit  to  recover  back  payments  made 

under.     4:  302.* 
§  2.  Contracts  procured  by  threat  to  prose- 
cute relatives. 
General   nature  of.     26:  48. 

Voidable    upon    the   ground   of   duresa 

26:  48. 
Contrary  to  public  policy.     26:  49. 
Not   enforceable   for  want   of  consent. 

26:  51. 
Relievable  against  in  equity.    26:  52. 
Duress  as  a  defense.     26:  53. 
Nature  of  the  duress  or  menace.    26:  55. 
In  the  case  of  parent  and  child.    26:  56. 
To  relieve  husband  or  wife.    26:  60. 
Other  relations.    26:  64. 


DUTIES. 

Payment  of,  by  Carrier  Instead  of  Carrying 
in  Bond,  see  Carriers,  747;  Damages, 
230. 

Sale  of  Property  as  Security  for,  see  Sale, 
11. 

1.  Jewelry  presented  to  a  citizen  of  the 
United  States  while  in  a  foreign  country 
cannot  be  taken  by  him  into  his  own  coun- 
try free  of  duty,  under  par.  697  of  the  act 
of  Congress  of  July  24.  1897  (30  Stat,  at 
L.  202,  chap.  11,  U.  S.  Comp.  Stat.  1901,  p. 
1689)  unless  within  the  proviso  of  that  para- 
graph that  no  more  than  .$100  in  value  of 
articles  purchased  abroad  by  residents  of 
the  United  States  shall  be  admitted  free 
of  dutA'  on  their  return.  United  States  v. 
One  Pearl  Necklace.  49  C.  C.  A.  287.  Ill  Fed. 
164,  i>6:  130 
Forfeiture  of  dutiable  articles. 

See  also  infra.  Editorial  Notes. 

2.  The  provisions  of  U.  S.  Rev.  Stat.  §§ 
2785,   3082,  2872,   2874    (U.   S.  Comp.   Stat. 
1!H»1.   pp.   1867,  2014,   1910),  with   reference 
to   the  entry  and  unlading  of  merchandise 
brought  into  the  United  States  by  passen 
gers  from  foreign  countries,  have  no  applica 
tion  to  dutiable  articles  brought  in  pack- 
ages of  baggage,  but  the  entry  and  unlad- 
ing of  such  articles  are  governed  by  §§  2799, 
2801     (U.    S.    Comp.    Stat.    1901,    pp.    1872, 
1873).     United  States  v.  One  Pearl  Neck 
lace,  49  C.  C.  A.  287,  111  Fed.  164,      56:  130 

3.  Failure  of  a  passenger  from  a  foreign 
country  to  mention  dutiable  articles  in  the 
statement  of  his  baggage  which  is  required 
to  be  made  by  U.  S.  Rev.  Stat.  §  2799, 
U.  S.  Comp.  Stat.  1901,  p.  1872,  will  subject 
them  to  forfeiture  under  §  2802  (U.  S. 
Comp.  Stat.  1901,  p.  1873),  which  provides 
that  articles  not  mentioned  to  the  collect- 
or before  whom  the  entry  is  made,  by  the 
person  making  the  entry,  shall  be  forfeited, 
and  such  forfeiture  is  not  saved  by  the  men* 
lion  of  tiicni  when  a  new  entry  is  re- 
quired by  the  officers  under  §  2801  (U.  S. 
Comp.  Stat.  1901,  p.  1873)  after  having  dis 
covered    the    articles   althojjgh    that   section 


DUTY— EASEMENTS. 


1071 


provides  that,  in  case  of  «iuch  discovery,  due 
entry  of  the  articles  "shall  be  made,  and 
the  duties  thereon  paid."  Id, 

4.  Forfeiture  of  dutiable  articles  attempt- 
ed to  be  brought  from  foreign  countries  into 
the  United  States  in  baggage,  because  of 
failure  to  mention  them  in  the  statement 
required  by  U.  S.  Rev,  Stat,  §  2799,  U.  S. 
(Jomp.  Stat.  1901,  p,  1872,  is  not  averted  by 
the  fact  that  the  form  of  declaration  pre- 
pared by  the  officers  for  use  in  making  the 
statement   is   misleading  and   unintelligible. 

Id. 

5.  intent  to  defraud  the  revenue  i.s  not 
necessary  to  work  a  forfeiture  of  articles 
omitted  by  a  passenger  arriving  in  the  Unit- 
ed States  from  the  statement  q/  his  bag- 
gage, required  by  U.  S,  Rev,  Stat,  §  2799, 
U.  S.  Comp.  Stat.  1901,  p.  1872,  such  omis- 
sion alone  being  sufficient.  Id. 

6.  The  attempted  smuggling  of  goods  in- 
to the  United  States  will  justify  their  for- 
feiture, as  against  the  claims  of  one  from 
whom  they  were  obtained  by  the  smuggler 
by  a  fraudulent  purchase,  which  remains 
unrescinded.  581  Diamonds  v.  United  States, 
56  C.  C.  A.  122,  119  Fed,  556,  60:  595 


Editorial  Notes. 


15: 


Recovery  for  goods  sold  to  smugglers. 

834. 

Forfeiture   of   dutiable   articles   in    passen- 
ger's baggage.    56:  130. 
In  general,    56:  130, 
Concealment.    56:  131. 
Omission  from  manifest  of  vessel.    56: 
132, 
Entry  or  statement  of  baggage.    56:  133. 
Permit  forunlading,    56:134. 

♦  •» 


DUTY. 


Question  for  Jury  as  to,  see  Trial,  296,  436.    Tax  on,  see  Taxes,  110. 


DWELLING. 

Assault  in  Protection  of,  see  Assault  and 

Battery,  27,  28. 
Liability  for  Breaking  into,  see  Officers,  210. 


DYING  DECLARATIONS. 

Admissibility  of,  see  Evidence,  X.  1. 
Contradiction   of,   see   Witnesses,   160. 


DYNAMITE. 

Use  of,  in  Blasting,  see  Blasting. 

Judicial  Notice  as  to  Dangerous  Nature  of, 
see  Evidence,  106, 

I'resumption  of  Negligence  from  Explosion 
of,  ^see  Evidence,  554. 

Effect  of  Keeping  of,  on  Insurance,  see  In- 
surance, 486. 

Master's  Liability  for  Explosion  of,  see  Ma.s- 
ter  and  Servant,  81, 

Contributory  Negligence  of  Servant  as  to, 
st'e  Master  and  Servant,  380,  383. 

Proximate  Cause  of  Injury  by  Explosion  of, 
see  Proximate  Cause,  60,  61. 

Instruction  as  to  Thawing,  see  Trial,  814. 

See  also  Explosions  and  Explosives, 

Editorial  Notes. 

Negligence  in  the  manufacture  and  storage 
of.    29:  718. 


DYNAMO. 


E 


EARNINGS. 

Of  Husband,  Rights  of  Creditor  as  to,  see 

Husband  and  Wife,   181-186. 
Wife's  Right  in,  see  Husband  and  Wife,  60. 

Editorial  Notes. 

Future;    mortgage    or    assignment    of.    14: 

126. 
Right   of  creditors  in   personal  services  of 

debtor.     21:623. 


EASEMENTS. 
I.  Nature;  Kind. 


II.  Creation;  How  Acquired. 

a.  In  General;  By  Express  Terms. 

b.  By   Prescription. 

c.  As  Appurtenant;  By  Necessity. 
IIL  Extent  of  Rights. 

IV,  How  Lost, 
"V.  Editorial  Notes, 

In  Public  Alley,  see  Alleys. 

Canal  Right  of  Way  as  Mere  Easement,  see 
Canals,  3. 

As  Encumbrance,  see  Covenant,  18,  50, 

Covenant  as  to,  see  Covenant,  7,  15,  100- 
102, 

Fee  Subject  to,  as  Basis  of  Ejectment,  see 
Ejectment,  19-22. 

In  Highway,  see  Eminent  Domain,  367; 
Highways,  .36-44;  Landlord  and  Ten- 
ant. 93. 


1072 


EASEMENTS,  I.,  II.  a. 


As  Distinguislied  from  License,  see  Lic€|nse, 
1,  4-8. 

For  Park  in  City,  see  Municipal  Corpora- 
tions,  58. 

Notice  of,  see  Notice,  88-90. 

Partition  of  Property  Subject  to,  see  Par- 
tition, 14,  15. 

Of  Support  for  Party  Wall,  see  Party 
Wall,  20. 

Private  Roads,  see  Private  Roads. 

Proximate  Cause  of  Injury  to,  see  Proximate 
Cause,  123. 

Record  of  Imstrument  Releasing,  see  Real 
Property,  65. 

Of  Street  Railwav,  see  Street  Railways,  13, 
14. 

Grant  of,  to  Turnpike  Company,  see  Tolls 
and  Toll  Roads,  3. 

Purchaser  of  Land  Subject  to,  see  Vendor 
and   Purchaser,   98. 

In  Waters  Generally,  see  Waters. 

In  Well,   see   Waters,   441. 

Of  Drainage,  see  Waters,  419,  420. 


I.  Nature;   Kind. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

1.  An  easement  is  an  interest  in  land  cre- 
ated by  grant  or  agreement,  express  or  im- 
plied, which  confers  a  right  upon  the  owner 
thereof  to  some  profit,  benefit,  dominion,  or 
lawful  use  out  of  or  over  the  estate  of  an- 
other. Huyck  V.  Andrews,  113  N.  Y.  81, 
20  N.  E.  581,  3:  789 
Personal  or  appurtenant. 

See  also  infra,  48,  56,  57;  License,  8. 

2.  Whether  an  easement  retained  by  the 
grantor  is  intended  to  be  permanent  or  per- 
sonal is,  when  the  language  employed  is  am- 
biguous, to  be  determined  by  the  intent  of 
the  parties  as  gathered  from  the  language 
employed,  read  in  the  light  of  surrounding 
circumstances.  Chappell  v.  New  York,  N.  H. 
&  H.  R.  Co.  62  Conn.   195,  24  Atl.  997, 

17:420 

3.  An  easement  of  a  right  of  way  is  not 
presumed  to  be  personal,  where  it  can  fairly 
be  construed  to  be  appurtenant  to  some 
other  estate.  Reise  v.  Enos,  76  Wis.  634, 
45  N.   W.  414,  8:  617 

4.  A  right  of  way  in  gross  is  a  mere 
personal  privilege,  and  dies  with  the  grantee, 
although  the  instrument  creating  it  con- 
veys it  to  the  grantee  and  his  heirs  and  as- 
signs forever.  Fisher  v.  Fair.  34  S.  C.  203, 
13  S.  E.  470,  14:  333 

5.  Where  a  right  of  way  through  a 
private  alley  laid  out  entirely  on  the  grant- 
or's land  is  granted  to  the  owner  of  prop- 
iTfy  adjacent  thereto  which  fronts  on  a 
l»iiblic  street,  and  to  his  heirs  and  assigns 
forever,  it  does  not  become  appurtenant  to 
such  property,  but  is  a  right  of  way  in 
gross.  Id. 

6-7.  A  right  of  way  across  a  lot,  given 
by  a  conveyance  of  an  adjoining  lot,  to  be 
used  in  common  with  the  grantors  and  own- 
ers and  occupants  of  the  former  lot,  is  a 
risrbt  appurtenant  to  the  lot  conveyed;  and 


the  grantee,  after  he  has  conveyed  the  lot, 
cannot  claim  to  be  still  entitled  to  use  the 
right  of  way  in  connection  with  any  other 
lot  subsequently  acquired.  Reise  v.  Enos, 
76  Wis,  634,  45  N.  W.  414,  8:  617 


n.   Creation;    How   Acquired, 
a.  In  General;  By  Express  Terms. 

How  Rights  in.  Lost,  see  infra,  IV. 

Statute  of  Frauds  as  to,  see  Contracts,  173- 
177. 

Power  of  Cotenant  to  Create,  see  Cotenancy, 
23. 

Covenant  as  to,  see  Covenant,  89,  90,  100- 
102,  111,  112. 

In  Burial  Lot,  see  Ejectment,  26. 

Condemnation  of  Land  for  Private  Road,  see 
Eminent  Domain,  76-82. 

Presumption  of  Grant  of,  see  Evidence,  717. 

For  Maintenance  of  Party  Wall,  see  Party 
Wall,  3. 

Acquirement  by  Church  Deacons,  see  Re- 
ligious Societies,  18. 

See  also  Deeds,  84. 

For  Editorial  Notes,  see  infra,  V.  §§  2-5. 

8.  An  easement  in  land  can  be  granted 
only  by  those  who  could  convey  a  fee-simple 
estate.  Narron  v.  Wilmington  &  W.  R.  Co. 
122  N.  C.  856,  29  S.  E.  356,  40:  416 

9-10.  A  right  in  the  nature  of  an  ease- 
ment cannot  be  created  by  a  parol  agree- 
ment for  the  partition  of  lands,  because 
that  involves  something  besides  a  severance 
of  the  unity  of  possession.  Taylor  v.  Mill- 
ard, 118  N.  Y.  244,  23  N.  E.  376,  6:  667 

11.  The  right  to  have  the  light  and  air 
enter  the  windows  of  a  building  from  an  ad- 
joining lot  may  exist  by  express  grant,  or 
by  virtue  of  express  covenant  or  agreement. 
Keating  v.  Springer,  146  111.  481,  34  N.  E. 
805,  22:  644 

12.  The  right  to  have  a  court  kept  open  is 
not  created  by  estoppel  by  bounding  land 
thereon  in  a  deed  by  an  administrator  sell- 
ing land  under  a  license  of  the  probate 
court.  Baker  v.  Willard,  171  Mass.  220,  50 
N.  E.  620,  40:  754 

13.  An  easement  of  way  cannot  be  im- 
posed upon  a  tract  of  land  by  one  who  has 
not  at  the  time  of  the  agreement  acquired 
title  to  it,  although  he  undertakes  to  do  so 
as  part  of  the  consideration  of  another  tract 
conveyed  to  him,  and  he  at  the  time  con- 
templates acquiring  title  to  the  parcel  t«be 
aff'ected,  and  afterward  in  fact  does  so. 
Houston  V.  Zahm.  44  Or.  610,  76  Pac.  641, 

65:  799 
By  exception  or  reservation. 
Presumption  of  Reservation,  see  Deeds,  88. 
See  also  supra.  2;  infra,  48,  56,  57,  87,  90. 
For  Editorial  Notes,  see  infra,  V.  §  2. 

14.  An  easement  may  be  created  in  Mas- 
sachusetts by  way  of  exception  or  reserva- 
tion. Claflin  V.  Boston  &  A.  R.  Co.  157 
Mass.  489,  32  N.  E.  659,  20:  638 

15.  The  word  "heirs"  is  necessary  to  cre- 
ate an  easement  in  fee  by  way  of  reserva 


EASEMENTS,  11.  b 


1U73 


tion,  but  not  to  create  it  by  way  of  excep- 
tion if  the  grantor  owned  the  fee  at  the 
time  of  conveyance.  Id. 

16.  An  easement  may  be  acquired  by  the 
grantor  by  a  clause  of  reservation  in  a  deed; 
and  the  technical  distinction  between  res- 
ervation and  exception  will  be  disregarded, 
and  the  language  used  so  construed  as  to 
effectuate  the  intention  of  the  parties. 
Hagerty  v.  Lee  (N.  J.  Err.  &■  App.)  54  N.  J. 
L.  580,  25  Atl.  319,  20:  631 

17.  An  exception  in  a  deed  may  operate 
to  preserve  a  permanent  easement  to  the 
grantor  without  the  use  of  words  of  limita- 
tion. Oiappell  V.  New  York,  N.  H.  &  H.  R. 
Co.  62  Conn.  195,  24  Atl.  997,  17:420 

18.  A  reservation  in  a  deed  gsanting  a 
right  of  way  for  railroad  tracks,  of  the  priv- 
ilege of  crossing  and  recrossing  and  main- 
taining water  pipes  over  it,  will  preserve  a 
permanent  easement  to  the  grantor,  where 
the  strip  granted  is  so  situated  as  to  shut 
oflf  all  access  to  the  grantor's  valuable 
wharves,  in  such  manner  that  without  the 
reservation  a  way  of  necessity  would  exist, 
and  the  reservation  is  in  effect  an  exception 
of  an  already  existing  right.  Id. 

19.  A  right  of  way  acquired  by  the  grant- 
or in  a  deed  of  a  strip  of  land  for  railroad 
purposes  by  "reserving  .  .  ,  the  right 
of  a  passageway  over  said  railroad,"  must 
be  taken  to  have  been  acquired  by  way  of 
reservation,  and  not  by  way  of  exception, 
if  there  was  no  existing  way  at  the  time  of 
the  conveyance.  Claflin  v.  Boston  &  A.  R. 
Co.  157  Mass.  489,  32  N.  E.  659,  20:  638 

20.  An  exception  of  a  right  of  way,  which 
will  inure  to  the  benefit  of  the  heirs  and 
assigns  of  the  grantor,  is  created  by  a 
clause  in  a  deed  of  a  strip  of  land  "reserv- 
ing the  privilege  of  a  pass  ...  in  my 
usual  place  of  crossing,"  where  the  pass  was 
used  to  reach  other  land  of  the  grantor 
difficult  of  access  by  any  other  route.  Dee 
▼.  King,  77  Vt.  230,  59  Atl.  839,  68:  860 

b.  By  Prescription. 

Estoppel  to   Deny   Existence    of   Easement 

by,  see  Estoppel,  218. 
Prescriptive  Right  to  Fish,  see  Fisheries,  6, 

30-32. 
In  Waters  of  Great  Pond,  see  Waters,  65-67. 
Acquiring  Water  Rights  by  Prescription,  see 

Waters,  II.  k. 
See  also  infra,  95-97. 
For  Editorial  Notes,  see  infra,  V.  §  4. 

21.  Easements  by  prescription  in  la^d  are 
only  to  be  acquired  by  adverse  user  thereof 
for  twenty  years.  Hodgkins  v.  Farrington, 
150  Mass.  19,  22  N.  E.  73,  5:  209 

22.  To  acquire  a  right  by  prescription  in 
the  lands  of  another  upon  the  presumption 
of  a  grant,  the  possession  must  be  adverse, 
continuous,  uninterrupted,  and  by  the  ac- 
quiescence of  the  owner  of  the  land  over 
which  the  easement  is  claimed.  If  its  in- 
ception is  permissive  or  under  a  license  from 
the  owner,  it  cannot  prevail  to  work  an 
ouster.  Curtis  v.  La  Grande  Hydraulic 
Water  Co.  20  Or.  34,  23  Pac.  808.  25  Pac. 
378.  10:  484 

L.R.A.  Dig.— 68. 


23.  Knowledge  of,  and  therefore  consent 
on  the  part  of  a  landowner  to,  the  adverse, 
open,  and  notorious  exercise  of  an  easement 
on  his  land  for  the  period  necessary  to  ob- 
tain a  right  by  presumption  of  a  lost  grant, 
wili  be  implied  by  law,  although  they  in 
fact  do  not  exist.  Boyce  v.  Missouri  P.  R. 
Co.  168  Mo.  583,  68  S.  W.  920,  58:  442 

24.  If  an  easement  cannot  be  acquired  by 
adverse  possession  against  a  landowner 
while  the  property  is  in  possession  of  a  ten- 
ant, the  doctrine  will  not  apply  in  the  land- 
owner's favor  where,  more  than  the  limita- 
tion period  before  action  brought  and  after 
the  adverse  right  had  been  asserted,  he  re- 
quired a  surrender  and  renewal  of  the  lease. 

Id. 
As  to  buildings. 
Of  Lateral  Support,  see  Lateral  Support,  6. 

25.  A  right  to  maintain  a  building  or  per- 
manent structure  upon  the  land  of  an- 
other cannot  be  acquired  by  custom.  Attor- 
ney General  ex  rel.  Adams  v.  Tarr,  148 
Mass.  309,  19  N.  E.  358,  2:  87 
As  to  railroad. 

26.  A  constitutional  provision  that  private 
property  shall  not  be  taken  for  public  use 
without  compensation  does  not  prevent  the 
acquisition  by  a  railroad  company  of  a  pre- 
scriptive right  to  a  right  of  way.  Boyce  v. 
Missouri  P.  R.  Co.  168  Mo.  583,  68  S.  W. 
920,  58:  442 

27.  An  easement  for  a  railroad  right  of 
way  cannot  be  acquired  by  occupation  under 
color  of  title,  as  against  an  owner  who  has 
given  no  consent  thereto,  where  the  occu- 
pation is  lawfully  taken  by  right  of  emi- 
nenc  domain.  Narron  v.  Wilmington  &  W. 
R.  Co.  122  N.  C,  856,  29  S.  E.  356,        40:  415 

28.  A  railroad  company  which  builds  its 
road  at  considerable  expense  over  a  right  of 
way,  and  openly,  notoriously,  and  continu- 
ously occupies  and  uses  it  for  thirty-six 
years,  even  without  special  claim  of  right 
in  words,  acquires  the  right  to  an  easement 
over  the  land,  although  it  entered  thereon 
under  a  verbal  agreement  by  which  the 
owner  gave  it  the  right  to  use  the  land  upon 
condition  that  it  would  establish  a  depot 
thereon  and  give  him  and  his  family  free 
transportation  over  the  road.  Texas  &  P. 
R.  Co.  v.  Scott,  23  C.  C.  A.  ^^4,  41  U.  S.  App. 
624,  77  Fed.  726,  37:  94 

29.  The  use  of  a  private  farm  railroad 
crossing  by  the  public  must  be  as  a  matter 
of  right,  and  not  a  permissive  use,  in  order 
to  become  a  prescriptive  right.  McCrT>ary  v. 
Boston  &  M.  R.  Co.  153  Mass.  300,  26  N.  E. 
864,  11:359 

30.  Evidence  merely  of  the  fact  that  a 
private  farm  railroawi  crossing  had  been 
used  more  or  less  by  persons  on  foot  and 
with  teams  does  not  show  a  prescriptive 
right  of  the  public  to  use  the  crossing, 
where  the  owner  had  kept  gates  and  bars 
on  one  side  of  the  crossing,  and  no  highway 
was  worked  on  one  side,  and  there  is  no 
evidence  to  show  that  the  use  by  the  public 
was  under  a  claim  of  right.  Id. 

31.  An  easement  by  prescription  is  not 
shown    bv    the    use,    for    less   than    twenty 


1074 


EASEMENTS.  II.  t. 


years,  of  a  right  of  way  across  a  railroad 
after  the  termination  of  a  right  which  had 
previously  existed  under  a  reservation  in  a 
deed  for  the  lives  of  the  grantors,  although 
the  right  to  cross  was  referred  to  in  certain 
deeds  between  the  parties,  but  not  in  a  way 
sufficient  to  give  the  right.  Clafiin  v.  Bos- 
ton &  A.  R.  Co.  157  Mass.  489,  32  N.  E. 
fi.59,  20:  638 

32.  A  railroad  company  which  constructed 
a  crossing  over  its  track  and  ties,  and  put 
gates  in  its  fences,  for  the  benefit  of  the 
owner  of  land  so  situated,  by  whom  the 
same  were  used  in  passing  from  one  part  of 
her  farm  to  the  other  for  more  than  fifteen 
years,  during  which  the  company  main- 
tained said  crossing  and  gates,  thereby  made 
the  landowner  only  a  mere  licensee  who 
could  not,  by  use  of  the  crossing  for  the 
time  stated,  obtain  a  prescriptive  right  to 
the  same.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
('onion,  62  Kan.  416,  63  Pac.  432,        53:  781 

33.  The  public  use,  for  the  prescriptive 
period,  of  a  path  along  a  railroad  right  of 
way,  with  the  know^ledge,  acquiescence,  and 
consent  of  the  railway  company,  gives  the 
public  no  prescriptive  right  to  travel  there, 
where  the  statutes  limit  the  use  to  which  a 
railroad  company  can  devote  its  right  of 
way  to  the  purposes  for  which  it  was  con- 
demned, and  allow  the  condemnation  of 
rights  of  way  across  the  railroad  right  of 
way  only  when  it  can  be  done  without  hin- 
drance to  the  use  for  which  the  property 
was  acquired  by  the  railroad  company. 
Matthews  v.  Seaboard  Air  Line  Railway, 
67  S.  C.  499,  46  S.  E.  335,  65:  286 
As  to  roadway. 

34.  The  use  of  the  private  way  to  a 
wharf  and  warehouse  by  the  public  can- 
not give  a  prescriptive  right  of  user  to  the 
public,  as  it  is  not  inconsistent  with  pri- 
vate ownership.  Lewis  v.  Portland,  25  Or. 
133,   35   Pac.   256,  22:  736 

35.  A  prescriptive  right  to  use  a  driveway 
is  not  established  by  continuing  its  use  for 
more  than  thirty  years,  under  an  agreement 
for  a  perpetual  easement,  made  before  the 
previous  use  had  continued  long  enough  to 
ripen  into  a  right  by  prescription.  Nowlin 
v.  Whipple,  120  Ind.  596.  22  N.  E.  669, 

6:  159 

36.  The  use  for  more  than  100  years  of 
a  well-known  and  well-defined  roadway 
from  a  public  road  to  a  great  pond,  by 
hunters,  fishermen,  picnic  parties,  cele- 
brators  on  public  occasions,  and  by  whom- 
soever chose,  without  objection  and  without 
obstruction,  does  not  establish  a  way  by 
prescription  or  dedication,  where  it  does  not 
appear  that  such  use  was  with  the  express 
or  implied  permission  of  the  owners  of  the 
land.  Slater  v.  Gunn.  170  Mass.  509,  49 
N.  E.  1017,  41:268 
As  to  way  of  necessity. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

37.  Claiming  the  right  to  use  a  way  to 
whicli  claimant  has  a  right  as  a  way  of 
necessity  is  not  adverse,  so  as  to  ripen  into 
a  prescriptive  right  which  will  survive  the 
necessity.      Ann    Arbor    Fruit    &    ^'.    Co.    v. 


Ann  Arbor  R.  Co.  136  Mich.  599,  99  N.  W. 
869,  66:  4ai 

38.  Continued  use  of  a  right  of  way 
which  originated  in  necessity  after  the 
necessity  has  ceased  does  not  become  ad 
verse  until  notice  of  lihe  adverse  claim  is 
brought  home  to  the  owner  of  the  servient 
estate.  Id. 

39.  The  owner  of  the  servient  estate  can- 
not be  presumed  to  know  that  a  continued 
use  of  a  way  originating  in  necessity  after 
the  necessity  has  ceased  is  claimed  to  be 
adverse,  where  he  has  no  notice  of  the  cir- 
cumstances which  have  terminated  the 
necessity.  Id. 

40.  Adverse  title  to  a  right  of  way  which 
originated  in  necessity  cannot  be  founded 
on  the  doctrine  of  constructive  notice;  that 
is,  that  the  owner  of  the  servient  estate 
should  have  known  that  the  claim  to  its 
use  had  become  adverse,  if  he  did  not  in 
fact  have  such  knowledge.  Id. 
As  to  burial  lot. 

41.  The  title  to  an  easement  of  a  burial 
lot  may  be  acquired  by  prescription,  where 
adverse  possession  for  that  purpose  is  held 
for  the  statutory  period.  Hook  v.  Joyce, 
94  Ky.  450,  22  S.  W.  651,  21:  96 
As  to  ice. 

42.  A  prescriptive  right  to  the  ice  on  the 
whole  surface  of  a  pond,  and  not  merely  to 
those  portions  of  it  from  which  ice  has  been 
cut,  is  acquired  by  those  who  have  exer- 
cised the  right,  without  objection  from 
anyone,  to  cut  and  gather  ice  at  any  point 
or  points  they  choose  during  a  time  long 
enough  to  create  prescriptive  rights  under 
the  statute  of  limitation,  claiming  the  right 
tmder  a  deed  which  gave  the  right  to  the 
fiowage  by  which  the  pond  was  created. 
Mansfield  v.  Place,  93  Mich.  450,  53  N.  W. 
617,  18:  39 
For  repairs. 

43.  A  servitude  by  prescription  charging 
property  with  the  payment  of  a  portion  of 
the  expense  of  repairs  to  a  dam  from  which 
a  water  power  is  furnished  to  the  premises 
is  created,  where  for  more  than  fifty  years 
an  annual  contribution  by  the  owner  of  the 
servient  estate  has  been  paid  as  a  duty  and 
collected  by  the  other  party  as  a  right. 
Whittenton  Mfg.  Co.  v.  Staples,  164  Mass. 
319,  41  N.  E.  441,  29.  500 

c.  As  Appurtenant;   By  Necessity. 

As   to   Whether   Easement   is   Personal 
Appurtenant,  see  supra,  2-6. 

Under  Deed  of  Cotenant,  see  Cotenancy,  45. 

Restricting     Distance     of     Building     from 
Street,  see  Covenant,  37. 

See  also  Deeds,  77. 

For  Editorial  Notes,  see  infra,  V^.  i^g  3,  6. 

44.  The    necessity    required    in    order    to 
pass  an  easement  by  implication  is  a  rea 
sonable,    not    an    absolute,    one.     Paine    v. 
Chandler,  134  N.  Y.  385,  32  N.  E.  18,     19:  99 

45.  A  right  of  way  appurtenant  to  land 
attaches  to  every  part  of  it,  even  though  it 
may  be  divided  between  several  dilferent 
persons.  Dee  v.  King,  77  Vt.  230,  59  Atl. 
839,  68:  860 


EASEMENTS,  11.  o. 


1076 


46.  Mere  convenience  is  not  sufficient  to 
create  or  convey  an  easement  by  implica- 
tion, but  the  privilege  or  right  must  be  of 
value  to  the  estate  granted,  which  tlie 
grantee  has  estimated  as  an  advantage  to 
the  estate  and  paid  for  in  his  purchase. 
Paine  v.  Chandler,  134  N.  Y.  385,  32  N.  E. 
18,  19:  99 

47.  The  owner  of  the  fee  in  lands  occu- 
pied as  depot  grounds,  who  occupies  an  ad- 
joining lot,  has  no  right  of  passage  over 
the  grounds  except  at  the  public  crossing. 
Lyon  V.  McDonald,  78  Tex.  71,  14  S.  W. 
261,  9:  295 

48.  A  reservation,  in  a  conveyance  of  a 
lot  which  has  a  right  of  way  appurtenant, 
of  such  right  of  way  to  the  gfantor,  is 
ineffectual.  He  cannot  enlarge  the  right,  or 
retain  any  interest  in  the  right  of  way  as 
separate  and  distinct  from  the  lot  to  which 
it  belongs.  Reise  v.  Enos.  76  Wis.  634, 
45  N.  W.  414,  8:  617 
Light  and  air. 

Easement    of    Abutting    Owner    as    to,    see 

Highways,  55. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

49.  The  doctrine  that  an  easement  appur- 
tenant to  a  close  is  appurtenant  to  every 
parcel  into  which  that  close  may  be  divided 
IS  not  applicable  to  an  easement  of  light 
and  air,  which  ordinarily  is  limited  to 
windows  and  doors  or  other  apertures  in  a 
building.  Baker  v.  Willard,  171  Mass.  220, 
50  N.  E.  620,  40:  754 

50.  An  easement  of  light  or  air  does  not 
pass  by  implication  on  a  conveyance  of  a 
building  with  windows  looking  out  over 
vacant  lots  the  title  to  which  remains  in 
the  grantor,  although  the  enjoyment  and 
value  of  the  building  will  be  greatly  im- 
paired by  erecting  a  structure  in  close 
proximity  to  it  on  the  vacant  lots.  Ken- 
nedy V.  Bumap,  120  Cal.  488,  52  Pac.  843, 

40:  476 

51.  A  purchaser  of  a  tract  of  land  40  feet 
wide  and  on  which  is  a  building  11  feet 
wide  from  land  retained  by  the  grantor, 
with  a  bay  window  5  feet  from  such  land, 
does  not  obtain  by  implied  grant  the  right 
to  the  light  which  the  building  will  receive 
from  the  unconveyed  portion,  as  against  a 
subsequent  purchaser  for  value  of  the  re- 
maining land.  Robinson  v.  Clapp,  65  Conn. 
365,  32  Atl.  939,  29:  582 

52.  A  landlord  vdll  not  be  liable  for  ob- 
structing his  tenant's  windows  by  building 
on  the  adjoining  close,  in  the  absence  of  any 
covenant  or  agreement  in  the  lease  for- 
bidding him  to  do  so.  Keating  v.  Springer, 
146  111.  481,  34  N.  E.  805,  22:  544 

53.  The  right  of  a  tenant  of  upper  floors 
to  light  and  air  from  a  well  or  open  space 
which  is  not  accessible  to  the  street  can- 
not be  obstructed,  where  it  is  necessary  to 
the  enjoyment  of  the  demised  premises. 
Case  V.  Minot,  158  Mass.  577,  33  N.  E.  700, 

22:  536 

54.  A  landlord  is  liable  to  a  tenant  of  up- 
per floors  for  wrongful  obstruction  of  light 
and  air  from  a  well  or  open  space  in  a 
building,  by  a  chimney  constructed  by  an- 
other tenant  under  the   landlord's  express 


authority   to    erect    such   chimnej-    for    the 
use  of  boilers  in  the  basement.  M 

View. 

Extent  of  Easement,  see  infra,  96,  97. 
Jurisdiction  of  Suit  as  to,  see  Courts,  297. 
Easement    of    Abutting    Owner,    see    High- 
ways, 42. 

55.  The  mere  fact  that  a  view  is  ob- 
structed from  one  place  to  another  does  not 
of  itself  import  an  injury.  Lyon  v.  Mc- 
Donald, 78  Tex.  71,  14  S.  W.  261,  9:  295 

56.  A  negative  easement  appurtenant, 
such  as  a  restriction  on  building  to  obstruct, 
a  view  of  the  sea  from  certain  premises, 
cannot  be  reserved  on  conveyance  of  such 
premises,  but  is  extinguished  if  severed 
therefrom  by  an  attempted  reservation. 
Cadwalader  v.  Bailey,  17  R.  I.  495,  23 
Atl.  20,  14:  300 

57.  A  covenant  restricting  erections  on  a 
strip  of  beach  retained  by  the  grantor,  but 
overlooked  by  the  land  conveyed,  which 
was  obviously  intended  to  preserve  an  un- 
obstructed view  of  the  sea,  creates  a  nega- 
tive easement  appurtenant.  Id. 
Use  of  stairways. 

58.  The  use  of  stairways  in  a  building 
erected  by  several  owners  of  land  as  a  single 
structure,  upon  a  single  plan,  and  under  a 
single  contract,  no  matter  whether  the  land 
was  then  partitioned  or  not,  cannot  be 
denied  by  the  owners  of  that  part  which 
includes  the  stairways  to  the  owner  of  an- 
other part  the  upper  floors  of  which  can  be 
reached  in  no  other  way.  Pierce  v.  Cleland, 
133  Pa.  189,  19  Atl.  352,  7:  752 
Use  of  elevator. 

59.  The  right  to  use  an  elevator  for 
hoisting  goods  from  a  basement  room  up  to 
the  sidewalk,  or  lowering  them  from  the 
sidewalk  to  the  basement,  cannot  be  implied 
as  incidental  or  appurtenant  to  the  estate 
in  the  basement  room,  where  the  elevator 
was  not  originally  intended  for  use  by  occu- 
pants of  that  room,  and  suitable  means  of 
ingress  and  egress  were  furnished  by  steps 
and  doors  from  the  basement  to  the  street, 
while  there  was  at  no  time  any  access  to 
the'  elevator  directly  from  the  basement, 
and  only  through  another  room  by  a  way 
which  was  not  a  common  passageway. 
Cummings  v.  Perry,  169  Mass.  150,  47  N.  E. 
618,  38:  149 
Support  of  building. 

See  also  infra,  80,  96,  97. 

60-64.  An  easement  for  the  support  of  a 
building  by  a  wall  which  is  acquired  by 
possession  becomes  appurtenant  to  the  es- 
tate and  passes  to  successive  owners  of  the 
building.  Barry  v.  Edlavitch,  84  Md.  95, 
35  Atl.  170,  33:  294 

In  alley. 
Extent  of  Rights,  see  infra,  86,  86. 

65.  An  easement  in  an  alley  across  the 
rear  end  of  an  adjacent  lot  is  created  as  in- 
cident or  appurtenant  to  a  building  sold  by 
the  common  owner,  when  the  alley  furnishes 
access  to  a  cellar  under  the  building,  as 
well  as  light  and  air  for  the  rear  portion 
of  it.  Irvine  v.  McCrearv,  108  Ky.  495,  56 
S.  W.  966.  "  49:  417 


1076 


EASEMENTS,  III. 


As  to  waters. 

66.  A  prior  appropriator  who  owns  a 
ditch  across  lands  subsequently  patented  by 
the  state  to  another  person  has  the  right 
to  enter  on  such  lands  to  clean  and  repair 
the  ditch.  Carson  v.  Gentner.  33  Or.  512, 
52  Pae.  506,  43:  130 

67.  The  right  to  the  use  of  the  waters  of 
a  spring  which  are  conveyed  by  pipe  from 
one  farm  to  another  owned  by  the  same 
person  passes  by  implication  on  a  convey- 
ance of  the  latter  farm,  where  the  flow  of 
the  water  is  essential  to  the  enjoyment  of 
this  farm,  and  the  loss  thereof  will  impair 
its  rental  value  $50  per  year,  or  depreciate 
its  fee  value  $6  per  acre.  Paine  v.  Chan- 
dler, 134  N.  Y.  385,  32  N.  E.  18,  19:  99 

68.  A  party  who  conveys  a  mill  and  dam 
conveys  all  the  easements  that  he  has,  or 
claims  and  purports  to  have,  at  the  time 
of  the  conveyance,  in  connection  therewith, 
incident  and  necessary  to  the  just  .enjoy- 
ment of  the  mill  and  dam.  Bowling  v.  Bur- 
ton, 101  N.  C.  176,  7  S.  E.  701,.  2:  285 

69.  A  right  to  fish  from  a  boat  in  water 
that  covers  the  land  of  another  person  can- 
not be  claimed  as  an  easement,  because  an 
easement  is  a  privilege  without  profit.  Al- 
bright V.  Cortright  (N.  J.  Err.  &  App.)  64 
X.  J.  L.  330,  45  Atl.  634,  48:  616 

70.  A  right  of  flowage  which  a  deed  by 
the  proprietor  of  lands  on  both  sides  of  a 
river  in  conveying  one  side  of  it  reserves  as 
part  of  a  mill  privilege  for  the  benefit  of  a 
mill  to  be  operated  by  water  to  be  raised 
by  a  dam  is  to  be  deemed  appurtenant  to 
the  land  of  which  the  mill  and  dam  will  be 
a  part,  and  not  merely  an  easement  in 
gross.  Smith  v.  Furbish.  68  X.  H.  123,  44 
.\tl.  398,  47:  226 

71.  A  deed  made  by  the  owner  of  a  tract 
of  land,  upon  a  portion  of  which  was  lo- 
cated a  fresh-water  lake,  by  which  he  con- 
veyed a  portion  of  the  upland  adjoining  the 
lake,  "together  with"  the  right  to  traverse 
the  lake  in  boats  for  pleasure  and  to  take 
fish  and  ice  therefrom  for  domestic  use,  and 
not  for  profit,  to  be  exercised  by  the 
grantee,  her  heirs  and  assigns,  grants 
those  rights  and  privileges  as  appurtenant 
to  the  upland,  and  not  in  gross.  Mitchell 
V.  D'Olier  (N.  J.  Err.  &  App.)  68  N.  J.  L. 
375,  53  Atl.  467,  59:  949 
Way  of  necessity. 

Condemnation    of    Land    for,    see    Eminent 

Domain,  79,  80. 
Parol  Evidence  as  to,  see  Evidence,  1098. 
Notice  of  Claims  of,  see  Real  Property,  83. 
See  also  supra.  18,  37-40,  44,  46;   infra.  79, 

89,  93,  94. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

72.  A  way  by  necessity  to  land  which  is 
entirely  surrounded  by  land  of  another 
owner  is  founded  on  an  implied  grant,  and 
does  not  exist  unless  there  has  been  a  unity 
oi  ownership.  Ellis  v.  Blue  Mountain  For- 
.■«t  Asso.  69  N.  H.  385,  41  Atl.  856,    42:  570 

73.  The  purchase  of  several  tracts  of  land 
which  completely  inclose  land  belonging  to 
another  person  will  not  entitle  him  to  a 
way  by  necessity  if  there  had  been  no  such 
way  over  either  of  the  parcels  bought,  al- 


though highways  leading  thereto  were  dis- 
continued at  the  instance  of  the  purchaser 
of   the   surroimding   land.  Id. 

74.  A  grantee  is  not  entitled  to  a  way  of 
necessity  from  one  part  of  land  to  another, 
when  it  is  divided  by  a  strip  that  has  been 
previously  taken  in  fee  by  a  railroad  com- 
pany in  condemnation  proceedings.  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Conlon,  62  Kan. 
416,  63  Pac.  432,  53:  781 

75.  A  way  of  access  by  water  to  land 
bordering  on  the  sea  is  sufficient  to  prevent 
a  right  of  way  from  necessity  across  land 
of  the  grantor  which  incloses  it  on  the 
land  side.  Kingsley  v,  Gouldsboro  Land 
Improv.  Co.  86  Me.  279,  29  Atl.  1074, 

25:  .502 

76.  A  way  of  necessity  is  created  on  the 
partition  of  lands,  iii  the  absence  of  any- 
thing in  the  record  to  the  contrary,  if  such 
way  would  have  been  created  in  favor  of 
one  of  the  parcels  by  its  conveyance  or  de- 
vise by  the  common  ancestor.  Ritchev  v. 
Welsh,    149   Ind.   214,    48   N.   E.    1031,* 

40:  105 

77.  A  right  of  way  over  a  railroad  does 
not  exist  as  a  necessary  incident  or  sec- 
ondary easement  to  a  right  of  way  re- 
served in  a  deed  of  a  strip  of  land  adjoin- 
ing the  railroad  and  described  as  going  '*to 
the  crossing  heretofore  secured"  to  the 
grantor  over  the  said  railroad,  where  no 
such  right  of  crossing  the  railroad  existed 
at  that  time.  Claflin  v.  Boston  &  A.  R.  Co. 
157  Mass.  489,  32  N.  E.  659,  20:  638 


m.  Extent  of  Rights. 

Right  of  Action  for  Trespass  on,  by  Ele- 
vated Railroad,  see  Action  or  Suit,  7. 

Compelling  Removal  of  Obstruction  to,  see 
Injunction,   42,   44. 

Injunction  against  Encroachment  on  Ease- 
ment, see  Injimction,  182-185. 

To  Take  Coal,  see  Mines,  35. 

See  also  supra,  48. 

For  Editorial  Notes,  see  infra,  V.  §§  6,  7,  9. 

78.  The  conveyance  of  a  right  of  ;way 
gives  the  grantee,  not  only  the  right  to  un- 
obstructed passage  at  all  times,  but  also 
such  rights  as  are  incident  or  necessary  to 
the  enjoyment  of  such  right  of  passage. 
Herrman  v.  Roberts,  119  N.  Y.  37,  23  N.  E. 
442,  7:  226 

79.  A  grantee  of  land  across  which  a  prior 
grantee  from  the  same  grantor  has  the 
right  to  a  way  by  necessity  takes  it  subject 
to  such  right,  although  it  had  been  neither 
exercised  nor  claimed  before  his  title  was 
acquired.  Logan  v.  Stogdale,  123  Ind.  372, 
24  N.  E.  135,  8:  58 

80.  The  right  to  occupy  the  space  inter- 
vening between  a  wall  and  the  line  by  one 
who  acquires  an  easement  by  prescription 
for  the  use  of  the  wall  to  support  a  building 
is  a  part  of  the  easement  so  acquired.  Barrv 
V.   Edlavitch,   84   Md.   07).    3.)   Atl.    170, 

33:  294 


EASEMENTS.  III. 


1077 


Light  and  air. 

In  Public  Alley,  see  Alleys,  3,  5. 

See  also  Covenant,  32-34,  47. 

For  Editorial  Notes,  see  infra,  V.  §§  5,  7. 

81.  The  easement  or  right  in  respect  to 
light  and  air  from  an  open  space  annexed 
to  a  mansion-house  estate,  created  by  will 
by  providing  that  the  establishment  shall 
continue  as  much  as  possible  unchanged, 
does  not  amount  to  a  general  right  to  have 
the  space  kept  open  for  the  whole  extent  of 
the  court,  but  only  to  an  ordinary  ease- 
ment of  light  and  air  for  the  windows  and 
doors  of  existing  buildings,  where  there 
was  no  communication  or  entrance  to  the 
court  from  the  mansion-house  estate,  and 
its  only  use  of  the  court  was  forJight  and 
air  and  for  a  drain.  Baker  v.  Willard,  171 
Mass.  220,  50  N.  E.  620,  40:  754 
Building  over  passage. 

See  also  supra,  81. 

For  Editorial  Notes,  see  infra,  V.  §  7. 

82.  The  light  of  passage  on  foot  over  a 
space  not  less  than  3%  feet  in  width  does 
not  include  the  right  to  have  the  passage 
kept  open  to  the  sky.  Baker  v.  Willard, 
Mass.  220,  50  N.  E.  620,  40:  754 

83.  The  right  of  passage  created  by  deed, 
for  horses,  carriages,  and  carts,  for  the  pri- 
vate convenience  of  the  owners  of  certain 
lots  used»  for  residence  purposes,  across  the 
back  end  of' such  lots,  "for  the  use  and  pur- 
pose aforesaid  and  no  other,"  is  not  vio- 
lated by  building  over  the  passage,  leaving 
a  space  high  enough  for  the  uses  specillod. 
Hollins  V.  Demorest,  129  N.  Y.  676,  29  N. 
E.  1093.  15:  487 
In  stairways. 

Compelling    Restoration    of    Stairway,    see 
Injunction,  42. 

84.  Reciprocal  easements  created  by  mu- 
tual covenants  of  adjoining  lot  owners  for 
the  use  of  stairs,  hallways,  skylight,  and 
heating  apparatus  in  common  in  buildings 
which  they  erect,  may  be  protected  and  en- 
forced by  a  court  of  equity  when  the  rem- 
edy at  law  is  insuHicient.  Barr  v.  Lamas- 
ter,  48  Neb.  114,  66  N.  W.  1110,  32:  451 
In  alley. 

Easement    in    Alley    as    Appurtenant,    see 

supra,  65. 
In  Public  Alleys,  see  Alleys,  3,  5. 

85.  Electric  light  wires  and  the  cross  arm 
attached  to  a  pole  which  stands  outside  of 
an  alley  cannot  be  lawfully  extended  over  a 
private  alley  the  easement  of  which  is  con- 
fined to  abutting  owners,  although  it  is 
done  to  furnish  electric  light  to  one-  of  the 
parties  entitled  to  the  easement,  but  with- 
out the  consent  of  the  others.  Carpenter  v. 
Capital  Electric  Co.  178  111.  29,  52  N.  E. 
973,  43:  045 

86.  The  fact  that  electric  light  wires  are 
about  14  feet  above  the  surface  of  a  pri- 
vate alley  over  which  they  are  strung  with- 
out right  will  not  prevent  the  court  from 
ordering  their  removal,— especially  when 
they  might  interfere  with  the  operations 
of  the  fire  department,  and  obstriict  the 
transfer  of  freight  or  other  materials  to 
;inr1  from  the  second-story  windows  of  a 
building.  *"• 


Cattle  pass. 

87.  The  reservation  in  a  grant  of  land  for 
a  highway  which  will  necessitate  a  bridge 
over  a  ravine,  of  the  right  to  attacli  a 
fence  to  the  bridge  will  include  the  right  to 
a  cattle  pas«  under  the  bridge,  where  the 
grantor  used  the  land  on  both  sides  of  the 
road  for  pasturage,  and  the  water  supply 
was  all  on  one  side,  and  thero  was  no  ap 
parent  purpose  in  reserving  the  right  to  at 
tach  the  fence  to  the  bridge,  except  to  af- 
ford an  opportunity  for  cattle  to  pass  under 
the  bridge.  Ague  v.  Seitsinger,  96  Iowa, 
181,  64  N.  W.  836,  36:  701 
?ipe  line  in  railroad  crossing. 

88.  A  pipe  line  for  oil  laid  underground 
in  a  wagon  road  or  crossing  under  a  rail- 
road track,  which,  by  stipulation  in  a  deed 
to  the  railroad  company,  it  is  required  to 
construct  and  maintain  for  the  grantor,  so 
as  to  enable  him  to  travel  and  cross  freely 
between  his  lands  on  each  side  of  the  rail- 
road, is  not  within  the  easement  reserved, 
but  constitutes  a  trespass,  even  if  it  does 
not  injure  the  railroad.  United  States 
Pipe -Line  Co.  v.  Delaware,  L.  &  W.  R. 
Co.  (N.  J.  Err.  &  App.)  62  N.  J.  L.  254,  41 
Atl.  759,  42:  572 
Right  to  locate  way. 

89.  The  right  to  locate  a  way  of  neces- 
"sity  belongs  to  the  owner  of  the  land 
over  which  it  is  to  pass,  provided  he  ex- 
ercises it  in  a  reasonable  manner,  having  due 
regard  to  the  rights  and  interests  of  the 
owner  of  the  dominant  estate;  but  if  he 
fails  to  select  it  when  requested  the  party 
who  has  the  right  thereto  may  select  a 
suitable  route  having  due  regard  to  the 
convenience  of  the  owner  of  the  servient 
estate.  Ritchey  v.  Welsh.  149  Ind.  214,  48 
N.  E.  1031,  40:  105 
Fencing  in. 

Fencing     in     Private     Road,     see     Private 
Roads,  1. 

90.  The  right  to  fence  a  right  of  way  i« 
not  given  by  a  reservation  in  a  deed,  of  "a 
reasonable  right  of  way  across  the  land." 
Sizer  v.  Quinlan,  82  Wis.  .390,  52  N.  W. 
590,  16:  512 
Obstruction. 

91.  One  in  possession  of  dominant  prem- 
ises and  of  a  way  appurtenant  thereto,  al- 
though only  a  tenant  at  will  under  a  parol 
lease,  can  sue  the  owner  of  the  servient 
premises  for  damages  for  obstructing  the 
way.  Hamilton  v.  Dennison,  56  Conn.  359. 
15  Atl.  748,  1:287 

92.  The  grantor  of  a  right  of  way  over 
rough,  rockj'  land,  which  is  used  as  a 
passageway  to  a  highway  from  the  resi- 
dence of  Vhe  grantee,  who  has  expended 
money  in  preparing  the  roadway,  cannot 
deposit  stone  or  other  obstruction  thereon, 
or  cut  it  up  by  drawing  heavy  loads  over  it, 
or  in  any  way  materially  obstruct  or  injure 
the  roadbed.  HeiTman  v.  Roberts,  119  N. 
Y.  37,  23  N.  E.  442,  7:  226 
Change. 

Raising  or  Extending  Party  Wall,  see  Party 
Wall,  9-14. 


1078 


EASEMENTS,  IV 


Change  of  Easement  in  Ditch,  see  Waters, 

466. 
Fur  Editorial  Xotes,  see  infra,  V.  §  7. 

93.  A  way  of  necessity  once  selected  can- 
not be  changed  by  either  party  without  the 
consent  of  the  other.  Ritchey  v.  \Velsh,  149 
Ind.  214,  48  N.  E.  1031,  40:  105 

94.  The  oflFer  of  a  substitute  for  a  right  of 
way  by  necessity  in  favor  of  one  over  an- 
other parcel  of  land  partitioned  which  would 
consist  of  a  private  way  over  other  lands 
that  constituted  no  part  of  the  estate  held 
in  common  need  not  be  accepted  by  the 
owner  of  the  right  of  way.  Id. 

95.  A  barway  connecting  a  right  of  way 
by  prescription  with  a  highway  may  be 
cut  down  by  the  owner  of  the  easement  to 
the  grade  of  the  highway,  when  that  is 
lawfully  lowered  by  the  public  authori- 
ties. Nichols  V.  Peck,  70  Conn.  439,  39  Atl. 
803,  40:  81 

96.  The  extent  of  an  easement  to  use  a 
wall  of  an  adjoining  owner  for  the  support 
of  a  building,  which  is  acquired  by  prescrip- 
tion, is  the  enjoyment  of  the  use  of  the 
wall  for  the  support  of  the  house  as  it  ex- 
isted during  the  period  of  prescription. 
Barry  v.  Edlavitch,  84  Md.  95.  35  Atl.  170. 

33:  294 

97.  The  owner  of  a  wall  which  is  subject 
to  an  easement  by  prescription  for  the  sup- 
port of  the  building  of  an  adjoining  owner 
has  the  right,  on  raising  the  wall  higher,  to 
the  sole  use  thereof  unaffected  by  any 
easement  for  the  use  of  the  new  portion  to 
support  an  additional  story  of  the  house  to 
which  the  easement  belongs.  Id. 
Rights  of  third  persons. 

98.  A  conveyance  to  each  other  by  ad- 
joining lot  owners,  of  the  open  space  be- 
tween the  common  boundary  line  and  their 
respective  buildings,  to  be  used  as  a  com- 
mon pass  way  for  their  mutual  benefit,  and 
for  no  other  purpose,  devests  each  owner  of 
tne  fee,  leaving  in  him  only  a  right  of  way 
over  such  open  space;  and  third  persons 
may  also  use  the  space  in  a  reasonable 
manner,  so  as  not  to  impede  the  right  of 
passage  of  the  grantors.  Low  v.  Streeter, 
66  N.  H.   36.   20   Atl.   247,  9:  271 


IV.  How  Lost. 

hy  Ordinance  Closing  Alley,  see  Alleys,  6. 
By  Laches,  see  Limitation  of  Actions,  14. 
Bv  Destruction  of  Partv  Wall  bv  Fire,  see 

Party   Wall,    19.     " 
See  also  supra,  56. 
For  Editorial  Notes,  see  infra,  V.  §  8. 

99.  An  easement  ends  when  the  particu- 
lar purpose  for  which  it  was  granted  ceases, 
(fahn  V.  Baker  Lodge  No.  47  A.  F.  &  A. 
Af.  21  Or.  .30.  27  Pac.  166,  13:  158 

100.  A  purchaser  of  a  lot  with  notice  of 
restrictions  in  the  original  plat  of  the 
lands,  which  was  referred  to  and  made  a 
I)art  of  a  deed  in  the  chain  of  title,  and  has 
l)een  constantly  recognized  by  the  different 
lot  owners  as  a  common  source  of  title,  is 
not  released  from  the  binding  force  of  the 
rejirietions  merelv  because  tliev  are  not  ex- 


pressly reserved  in  the  conveyance  to  him 
or  in  others  of  the  deeds  in  his  chain  of 
title.  Ewertsen  v.  Gerstenberg,  186  111.  344 
57  N.  E.  1051,  51:  310 

101.  The  failure  or  refusal  of  a  life 
tenant  of  premises  to  which  an  easement  in 
an  alley  was  made  appurtenant  by  grant,  to 
pay  taxes  and  expenses  on  the  alley,  which 
she  was  primarily  boimd  to  do,  will  not 
show  any  intention  of  the  owners  of  the 
fee  to  abandon  the  easement,  unless  they 
knew  of  such  failure  or  refusal.  Welsh  v. 
Taylor.  134  N.  Y.  450,  31  N.  E.  896, 

18:  535 
By  nonuser. 
For  Editorial  Notes,  see  infra,  V.  §  8. 

102.  An  easement  acquired  by  grant  can- 
not be  extinguished  by  mere  nonuser,  with- 
out anything  to  show  an  intention  to  aban 
don  it.  Welsh  v.  Taylor,  134  N.  Y.  450,  31 
N.  E.  896,  18:  535 

103.  Mere  nonuser,  for  any  length  of  time, 
of  an  easement  created  by  express  grant, 
will  not  destroy  or  extinguish  it,  but  there 
must  be  some  conduct  on  the  part  of  the 
owner  of  the  servient  tenement  adverse  to 
and  in  defiance  of  the  easement;  and  the 
nonuser  must  be  the  result  of  it,  and  must 
continue  for  twenty  years.  Dill  v.  Camden 
Bd.  of  Edu.  (N.  J.  Ch.)  47  N.  J.  Eq.  421,  20 
Atl.  739,  ,    10:  276 

104.  An  easement  acquired  by  grant  can- 
not be  lost  by  mere  nonuser  for  any  length 
of  time,  but  may  be  lost  by  nonuser  for 
twenty  years  under  circumstances  showing 
an  intention  to  abandon  it,  or  even  for  a 
shorter  period  imder  circumstances  show- 
ing such  intention,  which  is  acted  upon  by 
the  owner  of  the  servient  tenement  so  that 
it  would  work  harm  to  him  if  the  easement 
were  afterward  asserted.  Snell  v.  Levitt, 
110  N.  Y.  595,  18  N.  E.  370,  1:  414 

105.  An  easement  which  has  not  been 
used  for  more  than  twenty  years,  during  a 
large  portion  of  which  time  a  substituted 
easement  has  been  used,  is  extinguished,  as 
a  matter  of  law;  and  there  is  no  question 
for  the  jury.  Id. 

106.  The  right  of  passage  through  a  bar 
way  as  part  of  a  right  of  way  by  prescrip 
tion  is  not  lost  by  failure  to  use  it  for 
eleven  years  after  the  barway  has  Ix'en 
made  impassable  b/  the  lowering  of  a  high- 
way with  which  it  is  connected,  by  ithe 
public  authorities,  and  the  use,  as  a  sub- 
stitute, under  an  implied  license,  of  another 
barway  about  70  feet  distant.  Nichols  v. 
Peck,  70  Conn.  439.  39  Atl.  803.  40:  81 
Inclosing. 

107.  The  mere  erection,  by  a  purchaser  of 
a  lot  with  reference  to  an  alley  shown  by  a 
map  of  the  block  made  by  the  grantor,  of  a 
fence  inclosing  the  strip  designated  as  the 
iillev.  and  his  maintaining  such  inclosure 
for  more  than  twenty  years,  will  not  ex- 
tinguish the  right  of  light,  air,  and  prospect 
of  a  purchaser  of  an  adjoining  lot  on  the 
opposite  side  of  the  alley.  Dill  v.  Camden 
Bd.  of  Edu.  (N.  J.  Ch.)  47  N.  J.  Eq.  421,  20 
Atl.  739,  10:  276 

108.  The  erection  of  a  house  and  fence 
without  any  opening  on  an  alley  in   which 


EASEMK.NTS.  V.  (Ed.  Notes.) 


1079 


the  owner  liao  an  easement  by  grant  does 
not  show  an  intention  to  abandon  the  ease- 
ment. Welsh  V.  Taylor,  1.34  N.  Y.  450,  31 
N.  E.  896,  18:  535 

109.  The  mere  existence  of  a  gate  in  an 
alley,  and  acquiescence  therein  by  one  hav- 
ing an  casement  by  grant  in  the  alley,  but 
who  did  not  use  it,  will  not  be  prejudicial 
to  his  right,  unless  an  adverse  claim  is 
brought  to  his  knowledge.  Id. 

110.  The  chaining  and  locking  of  a  gate  is 
a  sufficient  revocation  of  an  implied  license 
to  use  it  arising  from  the  owner's  acqui- 
escence for  eleven  years  in  its  use  by  one 
who  had  a  right  of  way  across  the  premises, 
after  a  barway  at  some  distance  from  it, 
through  which  he  had  a  right  to  enter  the 
highway,  had  been  made  impassable  by  the 
lowering  of  the  highway  by  the  public  au- 
thorities. Nichols  V.  Peck,  70  Conn.  439, 
39  Atl.  803,  40:  81 


V.  Editorial   Notes. 

As   to   Railroad  Right  of   Way,   see   Rail- 
roads, III.  §  8. 
§  I.  What  are;  nature  of. 
Defined.     6:159;*  8:617.* 
Distinguished  from  license.     6:159.* 
Interest  of  owner  in  burial  lot  as.     67:119. 
As  an  encumberance  within  covenant  against 
encumbrances.     3 :  790.* 
Measure    of    damage    where    easement 
exists.      3:790.* 
Use  of,  as  adverse  possession.  4:645.* 
§  2.  Creation  of. 

How  created,  generally.     8:617.* 
By  agreement  with  reference  to  partv  wall. 

7:650.* 
Exception    and    reservation    of    easements. 
20:631. 
General  distinctions  between  exception 
and  reservation.     20:631. 
Creation    of    easement   bv   reservation. 

20:631. 
Words  of  inheritance  necessary  in  the 
reservation    of    easements. 
20:6,32. 
Exception  of  easements.     20:632. 
Words  of  inheritance  not  necessary  to 
except  an  easement  in  fee. 
20:633. 
Necessity  of  technical  words.     20:633. 
Reservation  out  of  grantee's  other  prop- 
erty.    20:633. 
Reservation  in  favor  of  stranger.     20: 

634. 
Construction  of  reservation.     20:634. 
Duration    of    easements    appurtenant. 

20:635. 
Illustration  of  the  use  of  reservations. 

20:637. 
Reservation  of  way  in  deed.     5:279.* 
Reserved   in   condemnation   case   to   reduce 

damages.     26:  751. 
§  3.  —  By  implication;   of  necessity.  • 

When  implied.     8:446;*  13:  126,*  657.* 
On  sale  of  part  of  a  building.     13:158.* 
Appurtenant  easement.     20:635. 
As  appurtenance  to  mill.    2:  285.* 
Right  of  way  by  necessity.     8:58.* 


Implied   easement   of   light,   air.   and   pros- 
pect.   22:536. 
§4.  —  By  prescription. 
Generally.     10:484.* 
Acquiescence  in  adverse  use.     10:484.* 
Extent  of  prescriptive  right.    10:484.* 
How  established.     10:485.* 
Intent  of  original  creation.     10:485.* 
Way  by  prescription.     10:485.* 
Necessity  that  possession  be  continuous  and 

uninterrupted.     10:485.* 
Presumption  of  easement.    10:486.* 
Prescriptive  right  to  fish.     60:496. 
§  5.  Light;  air;  prospect;  access. 
Abutting    owner's    easements    of   light   and 
air.     11:634;*  14:370,  381. 
Injury  to  abutter's  easements  of  light,  air, 
and    access    by    vacating 
street,  changing  grade,  etc. 
14:370,  383. 
American  law  as  to  easements  of  light,  air, 
and  prospect.    22:536. 
Right  of  prospect.     22:538. 
Implied  grants.    22:538. 
Implied  easement  of  tenant.     22:540. 
Express  grant  or  reservation  of   such 

easements.     22:541. 
Enforcement    of    right.     22:  542. 
Right    to    light    and    air    from    public 
highway.    22:543. 
Bad   motive   as    affecting   liability   for   ob- 
structing   light    and    air. 
62:683. 
§  6.  Transfer  of;  duration. 
Right   to  assign   or  transmit   easement   in 
gross.  14:333. 
When  grantee  acquires  a  profit  in  the 

grantor's  land.     14:333. 
The  Massachusetts  rule.     14:  335. 
Effect  of  attempt  to  sever  appurtenant  ease- 
ment   from    the    premises 
for  the  benefit  of  which  it 
exists.     14:300. 
Duration    of    easements,    appurtenant.     20: 

635. 
§  7.  Interference  with;   change  of. 
Revocability  of  license  interfering  with  ease- 
ment.    49:505. 
Building  over  right  of  way.     15:487. 
Right  to  change  easement.    15:93. 

Where  change  is  harmless  or  beneficial 
to  other  party.     15:94. 
Effect  of  substitution  of  new  way  for  old. 

5:652.* 
Injury  to  abutter's  easements  of  light,  air, 
and    access    by    vacating 
street,  changing  grade,  etc. 
14:370,  383. 
Bad   motive   as   affecting   liability    for   ob- 
structing   light    and     air. 
62:683. 
Mandatory   injunction   for   removal  of   ob- 
struction to  light.  20:161. 
Liabilitv  of  landlord  to  tenant  for  obstruc- 
tion of  light.    23:158. 
Liability  of  landlord  to  third  person  for  ob- 
.stniction     of     light.       26: 
201. 
§  8.  How  lost. 

Effect  of  nonuser  of  an  easement.     1:214;* 
5:  652;*  18:  535. 
Public  easements.     18:  540. 


1080 


EATING   HOUSE— EJECTMENT. 


Abandonment    of   highway    by    nonuser   or 

otherwise  than  by  act  of 

public.     26:449. 
Effect  of  abandonment  of  highway.    26:659. 
Transferability  of  right  to  take  advantage 

of  breach  of  condition  on 

which    easement    granted. 

60:764. 
§  g.  Remedies. 
Equitable  jurisdiction  to  protect  easement. 

3:861.* 
Action     for     interference     with     easement. 

6:262.* 

«-»■» 

EATING  HOUSE. 

Denial  of  Civil  Rights  in,  see  Civil  Rights, 
7-9. 


EAVES. 

Kjectment    in    case    of    Projection    of,    see 
Ejectment,  4,  5. 


ECCLESIASTICAL  LAW. 

See  Religious  Societies. 


ECCLESIASTICAL  TRIBUNAL. 

Conclusiveness  of   Decision   of,   see  Courts, 
T.  d,  2;    VI.  §   3. 


-♦-*-♦- 


EDITOR. 

Liability  of,  for  Libel,  see  Libel  and  Slan- 
Aer,  3. 


EDUCATION. 


(/harilable  Gift  tor.  (sec  ('harities.  24-34. 
Compulsory    Education    as    Infringing    Pa- 
rental Rights,  see  Parent  and  Child,  1. 
See  alwo  Colleges:    8f hools. 


EDUCATIONAL  INSTITUTION. 

Exemption    of,    from    Taxation,    see    Taxes, 

I.  f,  3. 
Tax  on  Gifts  to.   see    Taxes,  610-613. 


EDUCATIONAL    QUALIFICATION. 

Of  Voter,  spp  Elections.  20. 


EFFECT. 

Opinion  Evidence  as  to,  see  Evidence,  VII.  e. 
Sufficiency  of  Proof  of,  see  Evidence,  XII.  b. 
Question  for  Jury  as  to,  see  Trial,  U.  e,  2. 


EIGHT-HOUR  LAW. 


Constitutionality  of,  see  Constitutional 
Law,  316,  547-551,  710-718,  1043-1050. 

Power  of  Employee  to  Waive  Statutory 
Protection,  see  Contracts,  383. 

Right  to  recover  for  Overtime,  see  Contracts, 
613,  839a. 

Incorporation  of,  into  Public  Contract,  see 
Contracts,  839. 

Conclusiveness  of  United  States  Supreme 
Court  Decision  as  to,  see  Courts,  515. 

Indictment  for  Violation  of,  see  Indict- 
ment, etc.,  79. 

Ordinance  as  to  Hours  of  •  Labor,  see  Mu- 
nicipal Corporations,  250. 

Street  Improvement  Contract  Requiring 
Compliance  with,  see  Public  Improve- 
ments, 131. 

Partial  Invalidity  of  Statute  as  to,  see 
Statutes,  101. 

SuflBciency  of  Title,  see  Statutes,  175,  176, 
270, 

Amendment  of,  see  Statutes,  599. 

See  also  Master  and  Servant,  I.  d. 

Editorial  Notes. 

Laws  concerning  hours  of  labor.  21:796. 
Limitation  of  hours  of  labor  by  statute  or 
ordinance.     65:33. 


EJECTION. 

Of   Passenger  or    Trespasser,   see   Carriers, 

III.  a,  5;  TV.  §  19. 
Punitive  Damages  for,  see  Damages,  7ft-81. 
Recovery    for    Mental    Anguish    from,    see 

Damages,  609,  610. 

Editorial  Notes. 

Liability  for  ejecting  sick  tenant,  lodger,  or 
other  occupant.    55:258. 


EJECTMENT. 

I.  When  Proper  Remedy, 
n.  Title;  Proof  and  Defenses. 

a.  Sufficiency  of  Plaintiflfs   Title. 

1.  In  General. 

2.  Possessory  Titles. 

b.  Defenses, 
o.  Proofs. 

III.  .Judgment;  Relief  Generally. 

a.  .ludgnient;  Obtaining  Possession. 
1).   Mesne       Profits:       Improvements; 
Emblements. 
rV.  Statutory  New  Trial. 
V.  Editorial  Notes. 

Revival  in  Name  of  Heirs,  see  Abatement 
and  Revival.  43. 


EJECTMENT,  1.  II.,  a,  1. 


1081 


Prior  Entry  as  Condition  to  Right  of  Action, 
see  Action  or  Suit,  20. 

Interruption  of  Adverse  Possession  by  Dis- 
possession under  Judgment  in,  see  Ad- 
verse Possession,  84. 

Withholding  Mandate  of  Possession  to  Al- 
low Condemnation,  see  Appeal  and 
Error,  1191,  1192. 

Estoppel  against,  see  Estoppel,  199. 

By  Wife  against  Husband,  see  Husband  and 
Wife,  232. 

Limitation  of  Action  of,  see  Limitation  of 
Actions,   125. 

Admission  by  Plea  of  not  Guilty,  see  Plead- 
ing, 121. 

Sufficiency  of  Complaint  in,  see  Pleading, 
589.  , 

Demurrer  to  Answer  in,  see  Pleading,  620. 


I.  When  Proper  Remedy. 

Against    Fraudulent   Grantee,   see    Fraudu- 
lent Conveyances,  56. 
To  Oust  from  Oil  Mine,  see  Injunction,  191. 
For  Editorial  Notes,  see  infra,  V.  §§  2,  4. 

1.  The  laying  of  a  steam  railroad  longi- 
tudinally in  a  street,  unless  by  authority 
of  a  legislative  grant,  express  or  implied, 
will  be  regarded  as  such  an  exclusive  and 
wrongful  appropriation  of  that  part  of  the 
street  to  a  purpose  foreign  to  the  easement 
as  to  sustain  an  action  of  ejectment  by  the 
abutting  owner  against  the  company.  Bork 
v.  United  New  Jersey  R.  &  C.  Co.  (N.  J. 
Err.  &  App.)  70  N.  J.  L.  268,  57  Atl.  412, 

64:  836 

2.  An  ouster  whidj  will  sustain  eject- 
ment by  the  owner  of  the  soil  of  a  highway 
is  not  made  by  constructing  a  railroad 
thereon  by  permission  of  the  municipal  au- 
thorities. Montgomery  v.  Santa  Ana  &  W. 
R.  Co.  104  Cal.  186,  37  Pac.  786,  25:654 

3.  In  ejectment  against  one  claiming  un- 
der a  tax  deed,  the  invalidity  of  such  deed 
after  the  lapse  of  the  statutory  bar  of  three 
years  may  be  litigated  where  it  is  claimed 
that  the  facts  put  the  plaintiff  in  the  same 
position  as  if  he  were  directly  within  the 
exception  to  the  statutory  bar  which  would 
have  existed  had  he  paid  the  tax.  Gould 
▼.  Sullivan,  84  Wis.  659.  54  N.  W.   1013, 

20:  487 

4.  One  is  liable  in  an  action  of  ejectment 
for  the  projection  of  his  roof  over  another's 
land.  Murphy  v.  Bolger  Bros.  60  Vt.  723, 
15  Atl.  365,  '  1:  309 

5.  An  action  of  ejectment  cannot  be  main- 
tained against  one  the  eaves  of  whose  bam 
overhang  his  neighbor's  land  10  or  11 
inches,  where  the  eaves  of  the  latter's  bam 
are  lower  than  those  of  the  former,  and  the 
barn  is  built  so  close  to  the  line  that  the 
water  from  the  eaves  falls  on  the  former's 
land.  Rasch  v.  Noth,  99  Wis.  285,  74  N.  W. 
820,  40:  577 

6.  Ejectment  is  not  the  proper  remedy  to 
procure  the  discontinuance  of  a  sewer  which 
was  constructed  by  a  city  over  land  of  the 
United  States  government,  which  was  after- 
wards convej'ed  to  plaintiff,  where  the  only 


facts  that  appear  are  that  the  sewer  was 
constructed,  and  was  thereafter  continu- 
ously applied  to  its  proper  use,  without  be- 
ing fenced  in,  or  anything  being  done  to 
prevent  plaintiff  from  taking  possession  of 
the  land.  Harrington  v.  Port  Huron,  88 
Mich.  46,  48  N.  W.  641,  13:  664 


II.  Title;  Proof  and  Defenses. 

a.  Sufficiency    of    Plaintiff's    Title. 

1.  In  General. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

7.  The  plaintiff  in  ejectment  must  rely 
on  the  strength  of  his  own  title,  and  not  on 
the  weakness  of  that  shown  by  his  adver- 
sary, Bigler  v.  Baker,  40  Neb.  325,  58  N. 
W.   1026,  24:  255 

8.  The  right  to  recover  possession  under  a 
conveyance  in  consideration  of  taking  care 
of  the  grantee,  which  gives  an  equitable 
title  only,  depends  upon  the  performance  of 
the  contract  by  the  grantee.  Dreisbach  v. 
Serfass,  126  Pa.  32,  17  Atl.  513,  3:  836 

9.  A  transfer  of  land  over  which  a  tele- 
graph line  has  been  constructed  without 
right  gives  the  purchaser  all  his  grantor's 
rights,  including  the  right  to  bring  eject 
ment.  Postal  Teleg.  Cable  Co.  v.  Eaton. 
170  111.  513,  49  N.  E.  365,  39:  722 

10.  A  railroad  company  may  maintain 
ejectment  for  property  which  it  has  con- 
demned, since  it  acquires  more  than  a  mere 
easement  or  right  of  way  in  that  it  has  the 
right  to  possession  for  all  purposes.  Such 
right  is  not  affected  by  the  fact  that  such 
property  is  not  necessary  for  its  present 
use.  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v. 
Peet,  152  Pa.  488,  25  Atl.  612,  19:  467 

11.  A  deed  given  to  defraud  the  grantor's 
creditors  Will  not  support  an  action  of 
ejectment  against  him.  Kirkpatrick  ▼. 
Clark,  132  111.  342,  24  N.  E.  71,  8:  511 

12.  While  a  riparian  owner  selling  and 
conveying  his  land  may  reserve  to  himself 
the  right  to  construct  and  use  wharves  ex- 
tending from  such  land  into  the  water,  such 
right  is  a  mere  incorporeal  hereditament, 
and  the  possession  of  it  cannot  be  recovered 
from  a  usurper  by  an  action  in  the  nature 
of  ejectment.  Parker  v.  West  Coast  Pack 
ing  Co.  17  Or.  510,  21  Pac.  822,  5:  61 

13.  A  municipal  corporation  may  maintain 
ejectment  for  property  between  high  and 
low  water  mark  on  a  tidal  river,  held  by  it 
in  trust  for  the  public.  Mobile  Transporta- 
tion Co.  V.  Mobile,  128  Ala.  335,  30  So. 
645,  64:  333 

14.  The  title  of  land  sold  and  deeded  by  a 
guardian  to  her  husband  does  not  pass  to  a 
purchaser  who  has  notice  of  their  relation- 
ship; and  ejectment  for  its  recovery  may 
be  maintained  by  the  ward.  Frazier  v. 
Jeakins,  64  Kan.  615,  68  Pac  24,  57:  575 
Title  from  common  source. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

15.  To  succeed  in  an  action  of  ejectment 
plaintiff  must  connect  himself  with  the  gov- 


1082 


EJECTMENT.  II.  a,  2,  b. 


<rnment  title,  or  with  some  grantor  who 
was  the  common  source  of  title  of  both 
parties.  Slauson  v.  Goodrich  Transp.  Co. 
99  Wis.  20,  74  N.  W.  574,  40:  825 

16.  For  plaintiff  in  ejectment  to  trace 
liis  title  to  an  alleged  common  source  is 
prima  facie  sufficient  under  111.  Rev.  Stat, 
chap.  45,  §  25,  where  he  has  stated  on  oath 
that  defendant  claims  title  from  that 
source,  and  this  is  not  denied  on  oath. 
Lake  Erie  &  W.  R.  Co.  v.  Whitham,  155  111. 
514,  40  N.  E.  1014,  28:  612 
Necessity  for  re-entry. 

17.  One  entitled  to  recover  the  posses- 
sion of  real  estate  may  prosecute  an  action 
therefor  without  first  performing  the  com- 
mon-law ceremony  of  re-entry.  Sioux  City 
&  St.  P.  R.  Co.  V.  Singer.  49  Minn.  301, 
.51  K  W.  905,  15:  751 

18.  One  of  two  or  more  persons  holding  a 
vested  right  of  entry  for  condition  broken 
may,  without  actual  entry,  maintain  eject- 
ment for  the  land  involved.  Bouvier  v.  Bal- 
timore &  N.  "^■.  R.  Co.  (N.  J.  Err.  &  App.) 
67  N.  J.  L.  281,  51  Atl.  781,  60:  750 
Fee  subject  to  easement. 

See  also  supra.    1.  2:    infra,  33. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

19.  Ejectment  bj-  the  owner  of  the  fee  of 
a  public  street  will  lie  to  recover  possession 
thereof,  subject  to  the  public  easement,  from 
one  who  has  placed  a  permanent  obstruc- 
tion thereon.  Thomas  v.  Hunt,  134  Mo.  392, 
35  S.  W.  581,  32:  857 

20.  The  owner  of  the  soil  in  a  street  may 
maintain  ejectment  against  any  person 
wrongfully  taking  or  claiming  exclusive 
possession  of  the  same.  French  v.  Robb 
(N.  J.  Err.  &  App.)  67  N.  J.  L.  260,  51  Atl. 
509,  57:  956 

21.  The  owner  of  the  fee  of  land,  subject 
to  an  easement  of  a  public  highway,  may 
maintain  ejectment  against  an  intruder  who 
wrongfully  appropriates  the  same  to  a  pur- 
pose wholly  foreign  to  the  easement;  but 
his  recovery  of  possession  will  be  subject  to 
the  easement  in  question.  Bork  v.  tlnited 
N.  J.  R.  &  Canal  Co.  (K  J.  Err.  &  App.)  70 
N.  J.  L.  268,  57  Atl.  412.  64:  836 

22.  Ejectment  may  be  maintained  to  com- 
pel the  removal  of  telegraph  poles  from  a 
public  highway  over  plaintiff's  land  on 
which  the  line  constitutes  an  additional 
burden  for  which  compensation  has  not  been 
made  to  the  owner.  Postal  Teleg.  Cable  Co. 
V.  Eaton.  170  111.  513.  49  N.  E.  .365. 

.39:  722 
Easement. 
See  also  infra,  26. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

23.  A  city  may  maintain  ejectment  for 
the  possession  of  land  dedicated  for  use 
as  a  street,  although  it  does  not  own  the 
fee.  San  Francisco  v.  Grote.  120  Cal.  59, 
.52  Pac.  127.  41:  335 
Parol  title. 

24.  A  plaintiff  in  ejectment  cannot  rely 
ii[)on  a  parol  partition  to  establish  his  title 
to  the  cotenant's  share  of  the  premises. 
s.mtatr  V.  Bigelow,  142  III.  143.  31  N.  E. 
674,  16:  326 


25.  Dedication  of  a  street,  which  rests 
wholly  upon  parol  testimony,  does  not  give 
a  title  which  will  support  ejectment  by  a 
city  against  the  owner  of  the  fee.  San 
Francisco  v.  Grote  (Cal.)  47  Pac.  938, 

36:  502 
Aff'd  on  Other  Grounds  in  Banc  in  120  Cal. 
59,  52  Pac.  127,  41 :  335 

Burial  lot. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

26.  One  who  purchases  a  lot  in  a  public 
cemetery  for  burial  purposes,  though  the 
right  of  interment  therein  be  exclusive,  does 
not  acquire  any  title  to  the  soil,  but  only  a 
mere  easement  or  license,  which  will  not 
support  an  action  of  ejectment.  Doe  ex 
dem.  Stewart  v.  Garrett,  119  Ga.  386,  46 
S.  E.   427,  64:  99 

27.  An  interest  in  land  which  will  support 
an  action  of  ejectment  is  not  created  by  a 
deed  conveying  "the  exclusive  and  entire 
right  of  interment  or  sepulture  in"  certain 
burial  lots  to  be  held  "for  the  uses  and 
purposes  of  sepulture  only,  and  for  no  other 
use,  intent,  or  purpose  whatsoever."  Han- 
cock V.  McAvoy,  151  Pa.  460,  25  Atl.  47, 

18:  781 

2.  Possessory  Titles. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

28.  Possessory  rights  only  will  not  sus- 
tain an  action  of  ejectment  without  show- 
ing the  legal  title.  Cahill  v.  Cahill,  75 
Conn.  522,  54  Atl.  201,  732,  60:  706 

29.  Ejectment  against  one  who  claims  un- 
der tax  deeds  obtained  while  he  was  a  ten- 
ant of  another  person  cannot  be  maintained 
by  the  landlord  on  account  of  any  defects  in 
the  tax  proceedings,  where  the  landlord 
never  had  any  title  except  by  possession, 
and  had  lost  possession  before  the  suit. 
Smith  V.  Newman,  62  Kan.  318,  62  Pac 
1011,  53:  934 

30.  Title  to  real  estate  which  will  sustain 
an  action  of  ejectment  cannot  be  created 
or  established  by  the  presumptions  flowing 
from  peaceable  possession  of  it  for  a  period 
of  years  short  of  the  time  prescribed  by  the 
statute  governing  title  by  adverse  posses- 
sion. Cahill  V.  Cahill,  75  Conn.  522,  54  Atl. 
201.  732,  60:  766 

b.    Defenses. 

Of  Adverse  Possession,  Estoppel  to  Set  up, 

see  Estoppel,  173. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

31.  That  plaintiffs  stood  by  and  permit- 
ted, without  protest,  an  elevator  to  be  erect- 
ed on  the  granted  land  at  large  expense 
is  not  available  to  defeat  an  action  of  eject- 
ment to  recover  possession  of  the  land  on 
the  ground  that  the  placing  of  the  building 
thereon  was  a  breach  of  condition  in  the 
title  deed.  Wakefield  v.  Van  Tassell,  202 
111.   41,   66  N.  E.   830,  65:  511 

32.  A  deed  of  trust  upon  real  estate  is 
not  such  an  outstanding  legal  title  as  will, 
even  after  condition  broken,  but  before  en- 
try  or  foreclosure,  defeat  a   recovery  in  an 


EJECTMENT,  II,  c— IV. 


1083 


action  of  ejectment  for  the  property,  based 
on  titles  held  subject  thereto.  Benton  Land 
Co.  V.  Zeitler,  182  Mo.  251,  81  S.  W.  193, 

70:94 

33.  A  person  occupying  part  of  a  street 
with  poles  and  appliances  for  lighting  the 
street,  in  pursuance  of  a  contract  made 
with  the  municipal  authorities  under  N.  J. 
act  May  22,  1894  (P.  L.  p.  477)  has  such 
rightful,  exclusive  possession  of  the  part  so 
occupied  as  will  support  a  plea  of  not 
guilty  in  an  action  of  ejectment  brought 
by  the  owner  of  the  soil;  but  the  right  of 
such  a  person  to  use  the  street  in  the  im- 
mediate vicinity  of  his  poles  and  appliances 
for  the  purpose  of  maintaining  them  will 
not  support  such  a  plea.  French  v.  Robb, 
(N.  J.  Err.  &  App.)  (57  N.  J.  L.  260,  51  Atl. 
509,  57:  956 

c.  Proofs. 

Burden  of  Proving  Title,  see  Evidence,  696. 

Public  Statutes  and  Grants  as  Evidence  of 
Title,  see  Evidence,  910. 

Evidence  of  Ownership  of  Land,  see  Evi- 
dence, 1360,  2155,  2158. 

For  Editorial  Notes,  see  infra,  V.  §  5. 

34.  The  holder  of  state  grants  which  he 
claims  cover  the  bed  of  a  lake  must  show 
with  accuracy  the  particular  land  he  claims 
before  he  can  recover  in  ejectment.  Web- 
ster V.  Harris,  111  Tenn.  668,  69  S.  W.  782, 

59:  324 


TTT-    Judgment;    Relief   Generally. 
a.   Judgment;    Obtaining   Possession. 

Measure  of  Damages  for  Withholding  Pos- 
session, see  Damages,  402. 

Conclusiveness  of  Judgment  of  Dismissal, 
see  Judgment,  109. 

Conclusiveness  of  Judgment  Generally,  see 
Judgment,  188,  189. 

Stay  of  Execution  on  Judgment,  see  Exe- 
cution, 14. 

35.  Defendant  in  an  action  to  recover 
real  property  brought  to  compel  the  re- 
moval of  a  permanent  wall  erected  on  plain- 
tiflf's  property  cannot,  upon  motion,  be  re- 
quired to  remove  the  wall,  when  the  re- 
turn of  the  execution  states  that  it  is  im- 
practicable for  the  sheriff  to  remove  it. 
Hahl  V.  Sugo,  169  N.  Y.  109,  62  N.  E.-135. 

61 :  226 

36.  Error  in  striking  out  a  prayer  for 
equitable  relief  in  an  action  to  recover 
possession  of  real  property  must  be  cured 
by  appeal,  and  does  not  justify  plaintiff 
in  proceeding  with  his  execution,  and  then 
bringing  another  suit  for  equitable  relief 
when  his  execution  proves  inadequate.     Id. 

37.  A  writ  of  restitution  will  not  be 
granted  to  restore  to  a  defendant  in  eject- 
ment the  possession  of  property  taken  un- 
der a  writ  of  possession,  merely  because 
the  latter  was  not  issued  within  a  year 
and  a  day  after  the  rendition  of  the  judg- 


ment.    Bowar  v.  Chicago  W.  D.  R.  Co.  136 
HI.  101,  26  N.  E.  702,  12;-  81 

38.  The  common-law  rule  that  a  writ  of 
possession  cannot  be  issued  to  enforce  a 
judgment  in  ejectment  after  the  lapse  of  a 
year  and  a  day  is  abrogated  in  Illinois  by 
the  statute,  which,  though  making  no  ex- 
press provision  as  to  writs  of  possession, 
provides  that  execution  may  issue  upon  a 
judgment  at  any  time  within  seven  years, 
— especially  when  construed  with  another 
statute  providing  that  rules  of  pleading  and 
practice  in  other  actions  are  applied  to  ac- 
tions of  ejectment.  Id. 

b.  Mesne    Profits;    Improvements;    Emble- 
ments. 

Evidence    as    to    Amount    Recoverable    as 
Mesne  Profits,  see  Evidence,  1835. 

39.  Mesne  profits  are  recoverable  from  a 
defaulting  vendee  in  a  land  contract  for  the 
time  that  he  withholds  possession  of  the 
premises  pending  an  action  of  ejectment 
against  him,  in  which  he  gives  a  defense 
bond  under  N.  C.  Code,  §  237.  Credle  v. 
Ayers,  126  N.  C.  11,  35  S.  E.  128,      48:  751 

40.  Mesne  profits  realized  by  defendant's 
grantor,  as  well  as  by  defendant  himself, 
are  recoverable  in  an  action  for  land,  where 
he  is  allowed  for  improvements  made  by 
his  grantor,  as  well  as  those  made  by  him- 
self. Mills  V.  Geer,  111  Ga.  275,  36  S.  E. 
673,  52:  934 

41.  Rents  and  profits  of  land  occupied  by 
wards  on  an  invalid  exchange  made  by 
their  guardian  may  be  set  off  against  their 
claim  to  mesne  profits  on  their  recovery  of 
their  own  land.  Id. 

42.  Improvements  made  upon  property 
by  an  occupant  or  his  grantor,  in  good 
faith,  to  the  extent  that  they  exceed  the 
mesne  profits,  may  be  recovered  by  him  in 
an  action  against  him  to  obtain  possession 
of  the  land  by  the  holder  of  the  legal  title. 

Id. 
Crops. 

43.  Crops  growing  on  the  premises  at  the 
time  of  a  recovery  in  ejectment  are,  by  the 
general  rule  of  the  common  law,  regarded 
as  part  and  parcel  of  the  realty  belonging 
to  the  party  recovering  the  land.  Car- 
lisle V.  Killebrew,  89  Ala.  329,  6  So.  756, 

6:617 

44.  Where  no  bond  is  given  in  accordance 
with  Ala.  Code  1886,  §§  2712,  2713,  crops 
growing  on  the  land  recovered  in  ejectment 
belong  to  the  party  recovering  the  land.  Id. 


rV.  Statutory  New  Trial. 

See  also  supra,  36. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

45.  On  a  new  trial  in  an  ejectment  suit, 
taken  by  the  defeated  party  as  matter  of 
right  under  the  terms  of  a  statute  allowing 
it,  rulings  upon  the  admissibility  of  evi- 
dence have  no  binding  force.  Slauson  v. 
Goodrich  Transp.  Co.  99  Wis.  20.  74  N.  W. 
574,  40:  825 


1084 


EJECTMENT,  V.— ELECTION  DISTRICTS,  I. 


V.  Editorial  Notes. 

§  I.  Generally. 

Effect  of  prior  decision  on  statutory  new 
trial  in  real  actions. 
40:  825. 

Injunction  against  dispossession  in.  30: 
129. 

§  2.  Who  may  maintain. 

See  also  infra,  V.  §  3. 

Right  of  surviving  partner  to  maintain 
ejectment  for  partnership 
real  property.     28:  134. 

By  married  woman  against  husband.  6: 
506.* 

§  3,  What  title  or  interest  will  support. 

Estoppel  in  pais  upon,  defendant  as  basis  of 
action.     16:  813. 

General  rule  that  plaintiff  must  recover,  if 
at  all,  on  the  strength  of 
his  own  title.     18:  781. 

Equitable  title.     18:  781. 

Interest  in  public  land.     18:  782. 

Necessity  of  right  of  possession  and  inter- 
est in  land.     18:  783. 

Sufficiency  of  bare  possession  as  against  in- 
truder.    18:  784. 
What   constitutes    possession.      18:  785. 

Title  acquired  by  limitation.     18:  786. 

Ejectment  to  obtain  possession  of  burial 
lot.      67:  125. 

Ejectment  for  pier.     40:  648. 

Right    of    action    by    owner    of    dominant 
estate     subject    to     ease- 
ment.    18:  787. 
Land  subject  to  easement  of  highway. 

18:  787. 
To  recover  easement.     18:  786. 
Action  by  riparian  owner.     18:  786. 
To  obtain  railroad  right  of  way.     66: 
40. 

Sufficiency  of  mining  rights  to  support. 
18:  787. 

Interest  of  a  mortgagee.     18:  788. 

Tenant   in   common.      18:  789. 

Executors,  administrators,  and  guardians. 
18:  789. 

Ejectment  by  widow  to  recover  dower.  18: 
790. 

Remaindermen.     18:  790. 

Miscellaneous  instances.     18:  791. 

§  4.  Disseisin. 

What  disseisin  will  support  action.  13: 
664. 

Public  use  as.     13:  664. 

Overhanging  eaves  as.      13:  664. 

§  5.  Burden  of  proof;  costs;  defenses. 

Burden  of  proof  in  ejectment  case  as  to 
testamentary  capacity. 
17:  496. 

Liability  for  costs  of  third  party  defending 
ejectment   suit.     62:  626. 

Liability  of  beneficial  plaintiff  for  costs  in 
ejectment.      62:  623. 

Defenses  in.     13:  206.* 


ELECTION. 


•  Irantor's  Right  of,  see  IJeede.  95,  97. 
Of  Remedy,  see  Election  of  Remedy. 


Between  Counts,  see  Trial,  I.  b. 
Between  Legacy  and  Dower,  see  Wills,  III. 
i;  V.  §§  25,  26. 

An  election  to  give  exclusive  credit  to 
one  partner  is  not  established,  in  the  ab- 
sence of  full  knowledge  of  the  relation  of 
the  parties  between  whom  the  choice  is  to 
be  made;  and  the  knowledge  must  be  ac- 
tual in  contradistinction  to  that  which  is 
constructive.  Tyler  v.  Waddingham,  58 
Conn.  375,  20  AtL  335,  8:657 


ELECTION  DAY. 


Keeping  Saloon  Open  on,  see  Intoxicating 
Liquors,  141,  142. 


ELECTION  DISTRICTS. 

1.  In  General. 
n.  Equality. 
III.  Prior  Apportionment  Acts. 
IV.  Editorial  Notes. 

Review  of  Legislative  Actions  as  to,  see 
Courts,  129-135. 

Rule  as  to  Correcting  Harmless  Errors  in 
Apportionment,   see   Courts,   502. 

Estoppel  as  to,  see  Estoppel,  33. 

Termination  of  Legislative  Existence  by 
Apportionment,  see  Legislature,  6. 

Mandamus  to  Compel  Division  of  County 
into,  see  Mandamus,  60. 

Mandamus  to  Test  Validity  of  Apportion- 
ment Act,  see  Mandamus,  169. 

Issue  of  Election  Notices,  see  Mandamus, 
122. 

In  Town,  see  Towns,  2. 


I.  In  General. 

1.  The  obligation  of  observing  a  consti- 
tutional requirement  as  nearly  as  possible 
in  an  apportionment  act  becomes  of  bind- 
ing force  under  the  Constitution,  when  the 
exact  requirement  cannot  be  observed. 
Denny  v.  State  ex  rel.  Easier,  144  Ind. 
503,  42  N.  E.  929,  31 :  726 
Census. 

See  also  infra,  23. 

2.  An  apportionment  o^  election  dis- 
tricts must  be  based  upon  the  prior  census 
or  enumeration,  under  the  Wisconsin  Con- 
stitution providing  that  it  shall  be  made 
the  first  session  after  such  enumeration. 
State  ex  rel.  Lamb  v.  Cunningham,  83 
Wis.   90,  53  N.  W.  48,  17:  145 

3.  Supposed  inaccuracies  in  the  census, 
which  is  made  by  the  Constitution  the 
standard  of  apportionment,  cannot  justify 
the  legislature  in  making  an  apportionment 
different  from  that  which  the  figures  of  the 
census  require.  Neither  can  any  difference 
in  the  rapidity  of  the  increase  of  popii 
lation  in  different  localities  be  considered 
for  such  a  purpose.  Id. 


ELECTION  DISTRICTS.  I 


1085 


4.  Upon  the  omission  of  the  legislature 
to  make  an  enumeration  of  the  inhabitants 
and  apportion  the  districts  for  electing 
members  of  the  legislature,  in  the  year 
fixed  by  the  Constitution  for  that  purpose, 
the  duty  rests  upon  each  succeeding  legis- 
lature until  it  is  performed;  and  an  ap- 
portionment cannot  be  set  aside  as  un- 
authorized although  it  was  made  seven 
years  after  the  constitutional  time.  Peo- 
ple ex  rel.  Carter  v.  Rice.  135  K  Y.  473, 
31  N.  E.  921,  16:  836 
Omission  of  colored  persons  in  apportion- 
ing districts. 

5.  The  provision  of  the  New  York  Consti- 
tution requiring  the  omission  of  colored 
persons  not  taxed  from  the  nun^er  of  in- 
habitants in  apportioning  senate  districts 
became  inoperative  when  the  Constitution 
was  amended  by  striking  out  the  provision 
limiting  the  liability  of  colored  persons 
for  taxes  to  those  assessed  upon  real  estate, 
and  making  the  payment  of  taxes  neces- 
sary to  entitle  them  to  vote;  the  plain  in- 
tention of  the  people  being  to  blot  out  all 
distinctions  of  a  political  nature  between 
white  and  colored  citizens.  People  ex  rel. 
Carter  v.  Rice.  135  N.  Y.  473,  31  N.  E. 
921,  16:  8S6 
Double  districts. 

6.  Double  districts  in  which  two  or  more 
counties  are  grouped  and  given  a  voice  in 
the  election  of  more  than  one  senator  or 
representative,  when  neither  of  them  has  a 
voting  population,  equal  to  the  ratio  for 
one  senator  or  representative,  cannot  be 
created  under  Ind.  Const,  art.  4,  §  5,  re- 
quiring apportionment  among  counties  ac- 
cording to  the  male  inhabitants  above 
twenty-one  years  of  age,  and  §  6,  pro- 
viding that  where  more  than  one  county 
shall  constitute  a  district  they  must  be 
contiguous.  Denny  v.  State  ex  rel.  Easier, 
144  Ind.  503,  42  K  E.  929.  31 :  726 
Dividing  county  between  districts. 

7.  The  legislature  has  no  power  to  di- 
vide a  county  in  the  apportionment  of  dis- 
tricts for  the  election  of  representatives, 
under  the  Michigan  Constitution,  which 
provides  for  the  election  of  representatives 
by  single  districts  equal,  as  nearly  as  may 
be,  in  population,  and  for  which  no  town- 
ship or  city  shall  be  divided;  and  also  that, 
if  any  county  is  entitled  to  more  than  one 
representative,  the  board  of  supervisors 
shall  divide  it  into  the  requisite  number  of 
districts.  Houghton  Countv  v.  Blacker,  92 
Mich.  638,  52  N.  W.  951,   *  16:  432 

8.  An  apportionment  act  must  fee  held 
entirely  invalid  where  it  divides  a  county 
in  violation  of  the  Constitution,  and  the 
effect  of  correcting  the  act  in  this  par- 
ticular, and  giving  the  county  the  repre- 
sentation to  which  it  is  entitled,  would 
make  one  more  representative  than  the 
Constitution  permits.  Id. 

9.  The  division  of  a  county  in  the  forma- 
tion of  senate  and  assembly  districts  is 
prohibited  by  the  provision  of  the  Wiscon- 
sin Constitution  that  assembly  districts 
shall  be  "bounded  by  county,  precinct, 
town,  or  ward  lines,  to  consist  of  contigu- 


ous territory,  and  be  in  as  compact  form 
as  practicable,"  and  that  senate  districts 
shall  not  divide  assembly  districts.  Since 
county  lines  are  always  identical  with 
town  or  ward  lines,  the  only  force  of  the 
word  "coimty"  is  to  prevent  the  division 
of  a  county  by  separating  its  precincts, 
towns,  or  wards.  State  ex  rel.  Adams 
County  V.  Cunningham,  81  Wis.  440,  51  N. 
W.  724,  15:  561 

Dividing  county  into  districts. 

10.  The  election  of  members  of  assembly 
in  assembly  districts  allowing  each  voter 
to  vote  for  but  one  member,  instead  of 
voting  for  all  the  members  elected  in  that 
county,  is  not  in  accordance  with  the  Con- 
stitution of  New  Jersey,  which  provides 
that  the  members  of  assembly  shall  be 
elected  "by  the  legal  voters  of  the  county 
respectively,"  and  that  each  shall  be  an  in- 
habitant of  "the  county  for  which  he  shall 
be  chosen."  State  ex  rel.  Morris  v.  Wright - 
son  (N.  J.  Sup.)  56  N.  J.  L.  126,  28  Atl. 
56,  22:  548 
Separate  representative  for  county. 

11.  A  county  having  more  than  the  rep- 
resentative unit  of  population  cannot  be 
denied  the  right  to  a  separate  representa- 
tive. Parker  v.  State  ex  reL  Powell,  133 
Ind.  178,  32  N.  E.  836,  18:  567 
Contiguous  terrilory. 

See  also  infra,  16,  31. 

12.  The  words,  "convenient  and  contigu- 
ous territory,"  in  a  constitutional  provi- 
sion as  to  the  apportionment  of  election 
districts,  do  not  mean  contiguous  in  con- 
tact by  land,  when  applied  to  counties 
which  are  composed  of  islands;  and  conse- 
quently Keweenaw  and  Isle  Royal  coun- 
ties in  Michigan  may  be  declared  conveni- 
ent and  contiguous  to  other  counties  bor- 
dering on  deep  waters  of  the  lake, — as 
to  Houghton  countv.  Houghton  County  v. 
Blacker,  92  Mich.  638,  52  N.  W.  951,  16:  432 

13.  Counties  fully  represented  cannot  be 
used  in  the  apportionment  of  districts  for 
the  purpose  of  joining  counties  which  are 
not  otherwise  contiguous.  Parker  v. 
State  ex  rel.  Powell,  133  Ind.  178,  32  N. 
E.  836,  18:  567 
Change  of  boundaries. 

14.  The  constitutional  declaration  that 
a  senate  district  shall  consist  of  certain 
specified  counties,  when  construed  with 
other  provisions  making  population  the 
basis  of  apportionment  and  prohibiting  the 
division  of  a  county  between  senate  dis- 
tricts, establishes  an  organic  relation  be- 
tween the  boundaries  of  the  counties  as 
they  existed  at  that  time  and  the  senate 
districts  thereby  established,,  so  that  no 
change  of  county  boundaries  can  be  effect- 
ual to  change  the  boundaries  of  the  senate 
district.  People  ex  rel.  Henderson  v.  West 
Chester  County  Supers.  147  N.  Y.  1,  41  N. 
E.   563,  .  *  30:  74 

15.  The  annexation  of  a  portion  of  West- 
chester county  to  the  city  and  county  of 
New  York  by  N.  Y.  Laws  1895,  chap.  934. 
which  is  valid  so  far  as  it  affects  munici 
pal  burdens  and  municipal  rights,  leaves 
the   annexed   territory   still   a  part  of  the 


1086 


ELECTION  DISTRICTS.  II. 


ii!d  senate  district,  which  by  the  Consti- 
tution consisted  of  Westchester  county,  and 
within  the  jurisdiction  of  the  board  of  su- 
pervisors of  that  county  for  the  purpose 
of  including  it  within  one  of  the  three 
assembly  districts  allotted  to  that  county 
bv  the  Constitution.  Id. 


n.  Equality. 

Presumption     as     to,     see    Evidence,     199, 

622. 
See  also  infra,  34. 

16.  A  constitutional  provision  as  to  ap- 
portionment of  senators  and  members  of 
assembly  according  to  population,  in  dis- 
tricts bounded  by  county  and  township 
lines  and  consisting  of  contiguous  terri- 
tory in  as  compact  form  as  practicable,  is 
mandatory,  and  not  subject  to  legisla- 
tive discretion.  State  ex  rel.  Adams  Coim- 
tv  v.  Cunningham,  81  Wis.  440,  51  N.  W. 
724,  15:  561 

17.  The   requirement   that   legislative  ap- 
portionment shall  be  according  to  the  num- 
ber  of   inhabitants,    in   Ind.   Const,   art.   4, 
§  5,  is  no  less  binding  than   the  provision  | 
that  counties  united  in  a  district  must  be  j 
contiguous,  or  that  no  county  for  senatorial  I 
apportionment   shall  be  divided.     Denny   v.  i 
State  ex  rel.  Easier.  144  Ind.  .50,3.  42  N.  E.  j 
O20.  31 :  726  | 

18.  An  apportionment  act  may  be  ju-  j 
■  licialiy  declared  void  for  violation  of  a  con- 
"-titutional  requirement  of  apportionment 
according  to  the  number  of  inhabitants, 
when  the  disparity  in  the  number  of  in- 
habitants in  the  districts  created  is  so 
great  that  it  cannot  possibly  be  justified 
by  the  exercise  of  any  judgment  or  discre- 
tion. State  ex  rel.  Adams  Countv  v.  Cun- 
ningham, 81  Wis.  440,  51  N.  W.  724,  15:  561 

19.  The  discretion  of  the  legislature  in 
making  an  apportionment  of  senatorial 
districts  must  be  honestly  and  fairly  ex- 
ercised so  as  to  preserve  the  equality  of 
representation  as  nearly  as  may  be;  other- 
wise the  apportionment  will  be  unconsti- 
tutional. Giddings  v.  Blacker,  93  Mich.  1. 
52  N.  W.  944,  16:  402 

20.  There  can  be  no  legislative  discre- 
tion to  give  a  county  of  less  population 
than  another  greater  representation,  un- 
der a  Constitution  requiring  representa- 
tive districts  to  contain,  "a«  nearly  as  may 
be,"  an  equal  number  of  inhabitants, 
fioughton  Countv  v.  Blacker.  92  Mich.  638, 
52  N.  W.  951,     ■  16:  432 

21.  Discretion  as  to  the  apportionment 
is  vested  in  the  legislature  by  a  constitu- 
tional provision  that  members  of  assembly 
vhall  be  apportioned  by  it  among  the  sev- 
eral counties  of  the  state  "as  nearly  as  may 
be  according  to  the  number  of  their  re- 
'^pective  inhabitants,"  which  the  courts  have 
no  power  to  review  unles^^  it  has  been  so 
abused  as  clearly  to  show  an  open  and  in- 
1  funded  violation  of  the  letter  and  spirit  of 
the   Constitution.     People   ex   rel.   Carter  v. 


Rice,  135  X.  Y.  473,  31  N.  E.  921,       16:  836 

22.  No  abuse  of  the  discretion  vested  in 
the  legislature  as  to  the  apportionment  of 
members  of  assembly  is  shown  where  each 
county  has  been  given  a  member  for  every 
full  ratio  of  representation  which  it  con- 
tains, and  the  only  inequalities  alleged  are 
in  the  distribution  of  the  remaining  mem- 
bers to  counties  having  a  smaller  surplus 
over  the  ratio  than  other  counties  have, — 
at  least  where  the  reason  for  such  action 
was  not  partisan,  and  the  fair  inference  is 
that  it  was  absolutely  necessary  to  secure 
the  passage  of  the  bill.  Id. 

23.  A  legislature  cannot  be  charged  with 
unfairness  in  distributing  the  remaining 
members  of  assembly  among  the  counties 
after  all  full  ratios  are  provided  for,  be 
cause  it  takes  into  account  the  losses  sus 
tained  by  the  most  populous  counties  b.\ 
reason  of  the  adoption  of  a  certain  ratio 
of  representation  rather  than  of  some  other 
more  favorable  to  them,  nor  becau.se  it  re- 
gards increases  of  population  shown  by  the 
census.  Id. 

24.  No  scheme  for  senatorial  districts 
can  be  lawfully  devised  in  which  a  coimty 
having  less  than  the  unit  of  population  for 
a 'senatorial  district  can  legally  be  entitled 
to  vote  for  two  senators,  where  the  con 
stitutional  provisions  require  equality  in 
representation.  Parker  v.  State  ex  rel. 
Powell,  133  Ind.  178,  32  X.  E.  836,       18:  567 

25.  The  wealth  and  the  nature  and  char- 
acter    of     the     population     and     the     busi 
ness   interests  of  the   districts   cannot  jus 
tifv  a  disregard  of  the  constitutional  stand 
ards  of  population  in  apportioning  election 
districts.     State  ex  rel.  Lamb  v.  Cunning- 
ham, 83  Wis.  90,  53  X.  W.  48,  17:  145 

26.  The  injustice  of  allowing  but  one 
representative  to  a  county,  while  other 
counties  having  a  similar  population  are 
given  a  voice  in  the  election  of  more  than 
one  representative,  must  be  avoided  where- 
ever  possible.  Dennv  v.  State  ex  rel.  Eas- 
ier, 144  Ind.  503,  42  X.  E.  929,  31:  726 
Instances  of  inequality. 

27.  A  constitutional  requirement  of  ap- 
portionment according  to  the  number  of 
inhabitants,  in  creating  assembly  and  sen- 
ate districts,  is  violated  by  an  apportion- 
ment act  in  which,  with  the  average  popu- 
lation of  51,117  for  a  senate  district,  the 
number  of  inhabitants  in  the  respective  dis 
tricts  created  ranges  from  37,000  to  68,000. 
and  in  the  assembly  districts,  with  an  aver- 
age of  16,868,  ranges  from  6,000  to  38,000, 
as  such  act  is  not  an  "apportionment"  in 
any  sense  of  the  word,  but  is  a  direct  and 
palpable  violation  of  the  Constitution,  bear- 
ing upon  its  face  intrinsic  evidence  that 
no  judgment  or  discretion  was  exercised 
in  an  attempt  to  comply  with  the  Consti- 
tution. State  ex  rel.  Adams  County  v. 
Cunningham.  81  Wis.  440,  51  X.  W,  724, 

15:  561 

28.  An  inequality  of  election  districts  so 
great  that  one  assembly  district  has  three 
times  the  population  of  another,  and  one 
senate  district  has  more  than  double  that 
of    another,    while    these    inequalities    are 


ELECTION  DISTIIICTS.  Ill 


IDS': 


in  some  cases  made  at  the  expense  of  com- 
pactness, one  district  being  entirely  sur- 
rounded by  another,  makes  an  apportion- 
ment act  void  under  a  Constitution  re- 
(juiring  the  districts  to  be  apportioned  ac- 
cording to  the  number  of  inhabitants  and 
in  as  compact  form  as  practicable,  where 
these  inequalities  are  not  made  necessary 
by  any  other  provisions  of  the  Constitution. 
State  ex  rel.  Lamb  v.  Cunningham,  83  Wis. 
90,  53  N.  W.  48,  17:  145 

Equality  of  districts  in  same  county. 

29.  The  constitutional  requirement  that 
assembly  districts  must  be  as  nearly  equal 
in  populajiion  as  other  constitutional  pro- 
visions will  permit  is  just  as  applicable  to 
two  or  more  assembly  districts  yi  a  single 
county  as  to  an  assembly  district  com- 
posed of  two  or  more  counties.  State  ex 
rel.  Lamb  v.  Cunningham,  83  Wis.  90,  63 
N.  W.  48,  17:  145 

30.  Assembly  districts  must  be  given  an 
equal  number  of  inhabitants  as  nearly  as 
may  be,  on  the  division  of  a  county  by  the 
board  of  supervisors  under  the  New  York 
Constitution,  which  provides  for  divisions 
into  districts  "of  convenient  and  contigu- 
ous territory,"  when  construed  with  the 
preceding  provision  that  "the  members  of 
assembly  shall  be  apportioned  among  the 
several  counties  of  the  state  by  the  legisla- 
ture as  nearly  as  may  be  according  to  the 
number  of  their  respective  inhabitants," — 
especially  in  view  of  the  long  established 
policy  of  the  state  in  favor  of  direct  rep- 
resentation of  inhabitants  as  distinguished 
from  representation  through  corporations 
of  a  quasi-political  character.  People  ex 
rel.  Baird  v.  Broom,  138  N.  Y.  95,  33  N.  E. 
827,  20:  81 

31.  The  discretion  to  be  exercised  by  the 
board  of  supervisors  in  dividing  a  county 
into  assembly  districts  of  convenient  and 
contiguous  territory,  keeping  each  town  un- 
divided and  giving  each  district  as  nearly 
as  may  be  an  equal  number  of  inhabitants, 
must  be  an  honest  and  fair  discretion  aris- 
ing out  of  the  circumstances  of  the  case, 
and  reasonably  affecting  the  exercise  of  the 
power  of  equal  division.  Id. 

32.  A  deviation  from  equality  of  popula- 
tion in  the  division  of  a  county  into  as- 
sembly districts,  in  order  to  be  held  un- 
constitutional must  be  a  grave,  palpable, 
and  unreasonable  deviation;  such  that 
when  the  facts  are  presented  argument  will 
not  be  necessary  to  convmce  a  fair  man 
that  very  great  and  wholly  unnecessary  in- 
equality has  been  intentionally  provided 
for.  Td. 

in.    Prior    Apportionment    Acts. 
Power  to  Change  County  Boundaries  under, 
see  Counties,  8. 

33.  Any  number  of  legislative  violations 
of  plain  and  unambiguous  constitutional 
provisions  regarding  the  apportionment  of 
election  districts  cannot  be  regarded  as  ab- 
rogating such  provisions.  State  ex  rel. 
Lamb  v.  Cunningham,  83  Wis.  90,  53  N. 
W.  48.  17:  145 


34.  The  inequality  of  representation  un- 
der former  apportionment  acts  is  irrelevant 
and  immaterial  in  considering  the  consti- 
tutionality of  an  apportionment  act,  un- 
less the  language  of  the  Constitution  se- 
curing such  equality  is  ambiguous  and 
doubtful,  and  a  long-continued  legislative 
construction  has  been  given   to  it.  Id- 

35.  Former  apportionment  acts  may  be 
examined  bj'  the  court  when  it  is  asked  to 
set  aside  such  an  act,  for  the  purpose  of 
finding  a  valid  one  which  may  be  declared 
in  force.  People  ex  rel.  Carter  v.  Rice,  135 
N.  Y.  473,  31  N.  E.  921,  16:  836 

36.  On  holding  an  apportionment  act  un- 
constitutional, election  notices  will  be  or- 
dered to  be  given  under  the  preceding  act  if 
that  was  valid,  unless  a  new  act  shall  be 
passed  before  it  is  necessary  to  give  the 
notices.  Houghton  Countj'  v.  Blacker,  92 
IVIich.    638,   52   K    W.   951,  16:  432 

37.  In  holding  an  apportionment  of  sena- 
torial districts  unconstitutional,  where  the 
prior  apportionment,  which  had  been  acqui- 
esced in  for  three  elections,  was  also  sub- 
ject to  the  same  constitutional  objections, 
and  was  brought  in  question  by  the  peti- 
tion asking  that  notices  be  ordered  to  be 
given  under  it,  the  notices  were  ordered 
to  be  given  under  a  still  earlier  appor- 
tionment act  the  validity  of  which  was  not 
brought  in  question  in  those  proceedings. 
Giddings  v.  Blacker,  93  Mich.  1,  52  N.  W. 
944,  16:   402 

38.  That  the  effect  of  setting  aside  an 
apportiouTnont  act  would  be  to  cause  every 
subsequent  act  to  be  brought  before  the 
courts  for  review,  which  might  happen  at 
a  critical  time;  to  originate  the  greatest 
confusion  as  to  an  impending  election,  with 
a  possible  total  suppression  of  it;  and 
at  all  events  to  continue  in  force  an  act 
containing  greater  inequalities  than  the  one 
attacked, — is  of  itself  suflScient  to  induce 
the  court  to  say  that  only  in  case  of  plain 
and  gross  violation  of  the  spirit  and  let 
ter  of  the  Constitution  should  it  exercise 
such  power.  People  ex  rel.  Carter  v.  Rice. 
135  N.  Y.  473,  31  N.  E.  921,  16:  836 
Passing    second    act    daring    enumeration 

period. 

39.  A  valid  apportionment  law  can  be 
passed  only  once  for  each  enumeration  pe 
riod,  under  Tnd.  Const,  art.  4,  §  4,  provid 
ing  for  an  enumeration  every  six  years, 
and  §  5,  requiring  an  apportionment  at  the 
session  next  following  the  enumeration. 
Denny  v.  State  ex  rel.  Easier,  144  Ind. 
503,  42  N.   E.  929,  31:  726 

40.  An     unconstitutional     apportionment 
law,  even  if  it  has  been  declared  constitu 
tional   by   one   of  the    lower  state   courts, 
will  not  preclude  the  enactment  by  the  leg- 
islature of  a  valid  apportionment  law.  Id. 

41.  One  exercise  of  the  legi.alative  pow 
er  to  make  an  apportionment  of  the  state 
based  on  the  last  Federal  census,  under  111. 
Const,  art.  4,  §  6,  providing  that  the  general 
assembly  shall  apportion  the  state  every 
ten  years  by  dividing  the  population  as  as- 
certained by  the  Federal  census,  exhausts 
the   power  and   preoltides   a   change   of  the 


1088 


ELECTION  UISTKICTS,  IV.— ELECTION  OF  REMEDIES.  I 


apportionment  until  the  conditions  pro- 
vided for  in  the  Constitution  shall  again 
exist.  People  ex  rel.  Moonev  v.  Hutchinson, 
172   111.  486,  50  N.   E,  599/  40:  770 

42.  A  change  in  the  apportionment  of 
delegates  for  the  house  of  delegates  among 
counties  and  districts,  before  another  cen- 
sus is  taken,  when  such  an  apportionment 
has  been  made  after  a  census,  is  void  be- 
cause expressly  prohibited  by  W.  Va.  Const, 
art.  6,  §  10.  Harmison  v.  Jefferson  County 
Ballot  Comrs.  45  W.  Va.  179,  31  S.  E.  394, 

42:  591 


rV.  Editorial  Notes. 

Validity    of    apportionment.      15:  561. 
Interference  with,  by  annexation  of  prop- 
erty to  municipality.    27: 

744. 


ELECTION  FRAUDS. 
See  Elections,  II.  d. 


ELECTION   OF   REMEDIES. 

I.  Choice. 
II.  Effect;  Pursuing  Two  Remedies. 
TIL  Editorial  Notes. 


I.  Choice. 


To  Enforce  Provision  as  to  Height  of 
Building,  see  Buildings,  5,  6. 

KJFect  of  Other  Remedy  on  Right  to  Cer- 
tiorari, see  Certiorari,  I.  b. 

Election  to  Foreclose  Mortgage,  see  Mort- 
gage, 143. 

For  Abatement  of  Nuisance,  see  Nuisances, 
133. 

By  Beneficiary  in  Trust,  see  Trusts,  207. 

See  also  infra,  45;  Injunction,  43;  Receiv- 
ers, 21. 

1.  An  action  at  law  against  the  city  is 
the  proper  form  of  remedy  to  determine 
the  right  of  a  city  officer  to  increased  pay. 
Gobrecht  v.  Cincinnati,  51  Ohio  St.  68,  36 
N.  E.  782,  23:  609 

2.  A  person  seeking  to  recover,  for  part 
performance  of  a  contract,  from  one  who 
has  rightfully  terminated  the  same,  must 
sue  upon  the  contract  or  for  damages,  not 
upon  a  quantum  meruit,  though  his  re- 
covery must  be  upon  that  basis;  it  being 
presumed  that  he  earned  and  is  entitled  to 
the  contract  rate  for  the  time  his  serv- 
ices continued,  till  the  contrary  is  shown 
by  evidence  to  sustain  a  properly  pleaded 
counterclaim.  Hildebrand  v.  American  Fine 
Art   Co.    109  Wis.    171.   85  K   W.  268, 

53:  826 

3.  The  remedy  of  a  purchaser  at  a  fore- 
closure   sale   of    a    leasehold,    bv    the    terms 


of  which  he  is  to  receive  the  property  fre« 
from  unpaid  rent,  who  is  compelled  to  pay 
such  rent,  is  by  application  in  the  fore- 
closure suit,  and  not  by  independent  liti- 
gation with  the  receiver  at  law.  Stokes 
V.  Hoffman  House,  167  N.  Y.  554,  60  N.  E. 
667,  53:  870 

4.  An  action  either  for  the  value  of  trees 
destroyed,  or  for  the  injury  to  real  estate 
by  such  destruction,  may  be  brought 
by  the  owner  of  trees  wrongfully  destroyed 
by  another.  Bailey  v.  Chicago,  M.  &  St. 
P.   R.   Co.   3   S.   D.   531,   54  N.   W.    596, 

19:  653 

5.  The  only  remedy  of  a  landowner 
whose  land  is  injured  by  water  accumu- 
lated along  a  railroad  right  of  way  is  an 
action  at  law  for  damages,  and  the  legis- 
lature cannot  give  him  a  right  to  have  the 
water  drained  off  by  the  public  authori- 
ties at  the  expense  of  the  railroad  com- 
pany. Chicago  &  E.  R.  Co.  v.  Keith,  67 
Ohio  St.  279,  65  N.  E.  1020,  60:  525 

6.  A  person  excluded  by  a  cotenant  from 
a  mine  in  which  he  has  an  undivided  in- 
terest can  maintain  an  action  for  damages, 
and  his  remedy  is  not  limited  to  an  ac- 
tion for  partition,  or  an  accounting  of  rents 
and  profits.  Paul  v.  Cragnas.  25  Nev.  293, 
59  Pac.  857,  60  Pac.  983,  47:  540 

7.  Money  received  as  rents  for  water 
wrongfully  taken  from  plaintiff's  pond 
cannot  be  recovered  in  an  action  to  recover 
for  the  wrongful  taking  of  the  water. 
Green  Bay  &  M.  Canal  Co.  v.  Kaukauna 
Water  Power  Co.  112  Wis.  323,  87  N.  W. 
864,  62:  579 
Exclusiveness  of  statutory  remedy. 

8.  A  common-law  remedy  is  not  taken 
away  by  a  statutory  remedy  for  the  same 
right,  unless  the  statute  expressly  denies 
it,  or  is  so  clearly  repugnant  to  the  exer- 
cise of  it  as  to  imply  a  negative.  Chicago 
&  I.  Coal  R.  Co.  V.  Hall,  135  Ind.  91,  34 
N.  E.   704,  23:  231 

9.  The  provision  of  the  Colorado  Code 
abolishing  the  different  forms  of  actions 
does  not  affect  the  principles  controlling  in 
different  actions,  but  they  remain  the 
same;  and  the  law  to  be  administered  in 
each  case  depends  as  much  as  formerly 
upon  its  nature  and  form.  Omaha  &  G. 
Smelting  &  R.  Co.  v.  Tabor,  13  Colo.  41, 
21  Pac.  925,  5:  236 

10.  An  action  to  recover  possession  of 
specific  personal  property  should  under  the 
provision  of  the  Arkansas  Code  abolishing 
the  forms  of  actions,  follow  the  form  pre 
scribed  by  statute  in  such  cases,  requiring 
return  of  the  propertj'  or  payment  of  its 
value,  and  damages  where  return  cannot  be 
made,  although  the  action  is  in  form  tres- 
pass or  trover^  Eaton  v.  Langley,  65  Ark. 
448,    47    S.    W.    123,  42:  474 

11.  A  statutory  remedy  for  a  constitu 
tional  right  to  damages  in  a  condemnation 
case  cannot  be  made  exclusive,  where  the 
owner  of  the  property  is  given  no  power 
to  initiate  such  proceeding  or  to  enforce 
payment  after  the  damages  are  assessed. 
Hickman  v.  Kansas  Citv.  120  Mo.  110,  25 
S,  W.  225.  '  23:  658 


ELECTION  OF  REMEDIES,  I. 


1089 


12.  The  provision  of  a  penalty  for  viola- 
tion of  a  statute  enjoining  upon  railroad 
companies  the  duty  of  blocking  switches 
does  not  make  that  remedy  exclusive  of 
actions  by  persons  injured  by  the  neglect 
to  do  so,  unless  that  intention  is  to  be  in- 
ferred from  the  whole  purview  of  the  stat- 
ute. Narramore  v.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  37  C.  C.  A.  499,  96  Fed.  298, 

48:68 

13.  A  license  and  agreement  under  which 
land  is  taken  for  a  railroad,  with  agree- 
ment to  pay  its  value,  dispense  with  the 
writ  of  ad  quod  damnum  allowed  by  Ind. 
Rev.  Stat.  1881,  §  3953,  even  if  this  rem- 
edy would  otherwise  be  exclusive.  Chicago 
&  I.  Coal  R.  Co.  V.  Hall,  135  Ind.  91,  34 
N.    E.    704,  "   23:  231 

14.  An  administrator  of  a  person  whose 
death  was  caused  by  negligence  must  elect 
between  a  common-law  right  of  action  for 
mental  and  physical  suffering  of  the  intes- 
tate, and  a  statutory  cause  of  action  for  his 
death.  Thomas  v.  Maysville  Gas  Co.  108 
Ky.  224,  56  S.  W.  153,  53:  147 
Legal  or  equitable. 

Between  Garnishment  Proceedings  and  Suit 

in  Equity,  see  Equity,  45. 
Transfer    between    Law    and    Equity,    see 

Equity,  II. 
See  also   Injunction,  388;    Pleading,  582. 

15.  The  remedy  by  creditors  of  a  dece- 
dent's estate  against  legatees  or  next  of 
kin,  under  Wis.  Rev.  Stat.  1898,  §§  3269 
et  seq.,  to  recover  from  them  on  claim? 
against  the  decedent  to  the  extent  that 
they  have  received  assets  of  the  estate,  is 
purely  legal  and  statutory,  and  not  equi- 
table. South  Milwaukee  Co.  v.  Murphy,  112 
Wis.  614,  88  N.  W.  583,  58:  82 

16.  An  action  at  law  is  the  proper  rem- 
edy by  an  insurance  company  on  subro- 
gation to  a  claim  against  the  party  neg- 
ligently causing  the  loss.  St.  Louis,  A.  & 
T.  R.  Co.  V.  Philadelphia  Fire  Asso.  60  Ark. 
325,  30  S.  W.  350,  28:  83 

17.  The  suit  should  be  at  law,  and  not  in 
equity,  where  an  insurer,  who  has  paid  part 
of  the  loss  caused  by  a  fire  negligently  set 
out.  and  been  subrogated  to  the  rights  of 
the  property  owner,  and  the  property  own- 
er, join  in  a  suit  to  recover  the  entire  loss 
caused  by  the  negligence.  Firemen's  Fund 
Ins.  Co.  V.  Oregon  R.  &  Nav.  Co.  45  Or. 
53,  76  Pac.  1075,  67:  161 

18.  One  from  whom  a  release  of  a  claim 
against  a  carrier  for  personal  injuries  is 
fraudulently  obtained  may  maintain  an 
action  at  law  for  the  injuries,  without  go- 
ing into  equity  to  have  the  release  set 
aside  and  tendering  back  the  money  re- 
ceived. Och  v.  Missouri,  K.  &  T.  R.  Co. 
130  Mo.  27,  31  S.  W.  962,  36:  442 

19.  The  distinction  between  legal  and 
equitable  suits  was  not  abolished  by  Mass. 
Stat.  1887,  chap.  283,  which  permits  civil 
actions,  except  replevin  to  be  commenced,  by 
a  bill  or  petition  which  is  in  the  nature  of 
a  declaration,  and  by  the  service  of  a 
subpoena,  which  is  in  the  nature  of  a 
writ    of    original    summons;     and    a    suit 

L.R  A.  Dig.— 69. 


brought  under  that  statute,  which  cannot 
be  maintained  as  either  the  one  or  the 
other,  cannot  be  maintained  as  partaking 
somewhat  of  the  nature  of  both.  Worth- 
ington  V.  Waring,  157  Mass.  421,  32  N.  E. 
744,  20:  342 

Tort  or  contract. 

See  also  Municipal  Corporations,  500. 
For  Editorial  Notes,  see  infra.  III. 

20.  A  commission  merchant  who  receives 
mortgaged  cattle  sent  to  him  for  sale  with- 
out the  knowledge  or  consent  of  the  mort- 
gagee and  in  violation  of  the  terras  of  the 
mortgage,  and  who  sells  them  and  pays 
the  proceeds,  less  his  commission,  to  the 
consignor,  without  notice  of  the  mortgage, 
does  not  derive  such  a  benefit  from  the 
transaction  as  to  authorize  the  mortgagee 
to  waive  the  tort  and  recover  in  an  action 
upon  an  implied  contract.  Greer  v.  New- 
land,  70  Kan.  310,  77  Pac.  98,  70:  554 

21.  If  an  injury  to  land  is  committed  un- 
der a  contract  with  the  occupant  whereby 
he  is  to  receive  compensation,  his  remedy 
is  on  the  contract,  and  not  by  an  action 
of  trespass.  South  Baltimore  Co.  v.  Muhl- 
bach,  69  Md.  395,  16  Atl.  117,  1:  507 

22.  Making  a  claim  to  land  and  erecting 
a  fence  thereon,  after  an  award  by  arbi- 
trators as  to  the  boundary  line,  finding 
that  the  land  belongs  to  the  adjoining  own- 
er, does  not  constitute  a  breach  of  a  stipu- 
lation in  the  submission  "to  abide  by  and 
perform  the  award,"  for  which  assumpsit 
will  lie;  but  the  remedy  is  bv  an  action 
of  tort.  Weeks  v.  Trask,  81  Me.  127,  16 
Atl.  413,  2:  532 

23.  The  tort  in  conversion  of  goods  may 
be  waived,  and  an  action  brought  against 
the  wrongdoer  upon  an  implied  contract  of 
sale.  Terry  v.  Munger,  121  N.  Y.  161,  24 
N.  E.  272,  8:  216 

24.  An  action  of  tort  will  lie  for  a  rail- 
road company's  breach  of  its  statutory 
duty  to  stop  at  a  station  for  a  passenger. 
Purcell  V.  Richmond  &  D.  R.  Co.  108  N.  C. 
414.  12  S.  E.  954,  12:  113 

25.  An  action  against  a  carrier  for  viola- 
tion of  his  obligation  to  carry  a  passenger 
may  be  in  the  nature  of  an  action  on  the 
case.  Sloane  v.  Southern  Cal.  R.  Co.  Ill 
Cal.  668,  44  Pac.  320,  32:  193 

26.  A  passenger  who  by  mistake  is  given 
a  ticket  for  the  wrong  direction,  and  who 
on  failure  to  pay  his  fare  is  ejected  by  the 
conductor  without  unnecessary  force,  has 
no  right  of  action  for  a  tort  against  the 
company,  but  any  cause  of  action  he  may 
bring  must  be  based  on  contract.  MacKav 
V.  Ohio  River  R.  Co.  34  W.  Va.  65,  11  S.  E. 
737,  9:  132 

27.  An  action  for  breach  of  the  contract 
of  a  telegraph  company  may  be  brought  in 
assumpsit,  and  need  not  be  ex  delicto.  Car- 
land  V.  Western  U.  Teleg.  Co.  118  Mich. 
369,  76  N.  W.  762,  43:  280 

28.  An  action  to  recover  a  statutory 
penalty  from  a  telegraph  company  for  un- 
due delay  in  transmission  and  delivery  of  a 
message  is  not  an  action  ex  contractu,  with- 
in the  meaning  of  the  Georgia  Constitution, 
giving  justices'  courts  jurisdiction  of  "civil 


1090 


ELECTION  OP  REMEDIES,  H. 


cases  arising  ex  contractu.'"  Western  U. 
Teleg.  Co.  v.  Taylor,  84  Ga.  408,  11  S.  E. 
396,  8:  189 

On  breach  of  contract  of  employment. 

29.  An  employee  wrongfully  dismissed 
from  service  in  breach  of  the  contract  of 
hiring  cannot  maintain  an  action  for  un- 
earned wages  as  such,  although  he  holds 
himself  in  readiness  to  perform  his  part 
of  the  contract;  but  his  action  must  be 
for  breach  of  the  contract.  Olmstead  v. 
Bach,  78  Md.  132,  27  Atl.  501,  22:  74 
Rev'g  on  Rehearing,  25  Atl.  343,  18:  53 

30.  The  only  remedies  of  a  servant 
wrongfully  discharged  are,  either  to  treat 
the  contract  as  continuing,  and  bring  a 
special  action  for  breaking  it  by  discharg- 
ing him, — which  he  may  bring  whether  his 
wages  are  paid  up  to  the  time  of  his  dis- 
charge or  not;  or,  if  his  wages  are  not  paid 
up  to  the  time  of  discharge,  to  treat  the 
contract  as  rescinded,  and  sue  upon  a 
quantum  meruit  for  services  actually  ren- 
dered. Keedy  v.  Long,  71  Md.  385,  18  Atl. 
704,  5:  759 

n.  Effect;    Pursuing   Two   Remedies. 

As  to  Estoppel  by  Inconsistent  Acts  or 
Claims  in  Judicial  Proceeding,  see  Es- 
toppel III.  j.  3. 

Evidence  to  Show  Election,  see  Evidence, 
866. 

Bar   of   Former   Judgment,   see   Judgment, 

n. 

For  Editorial  Notes,  see  infra,  m. 

31.  The  rule  that  a  choice  of  one  of  two 
inconsistent  remedies  or  causes  of  action 
waives  the  other  applies  only  where  there 
are  two  such  remedies  or  causes  of  action. 
Fuller- Warren  Co.  v.  Harter,  110  Wis.  80, 
85  N.  W.  698,  53:  603 

32.  If  a  person  pursues  a  cause  of  action 
which  he  erroneously  supposes  he  has,  and 
is  defeated  because  of  the  error,  he  is  not 
precluded  thereby  from  suing  over  upon  the 
proper  cause  of  action.  Id. 

33.  Notice  of  the  appointment  of  a  receiv- 
er in  another  state,  given  to  a  creditor  who 
is  not  a  citizen  of  that  state,  after  he  has 
obtained  an  attachment,  does  not  put  him 
to  an  election  between  his  attachment  and 
fhe  right  to  share  in  the  foreign  receiver- 
ship, but,  after  taking  the  benefit  of  the 
security  obtained  by  attachment,  he  may 
claim  in  the  receivership  for  any  balance 
that  may  remain  unpaid.  Ward  v.  Connect- 
icut Pipe  Mfg.  Co.  71  Conn.  345,  41  Atl. 
1057,  42:  706 

34.  The  right  of  an  administrator  to  re- 
cover damages  suffered  by  the  intestate  dur- 
ing his  life  from  a  personal  injury,  which 
action  survives  under  Mass.  Pub.  Stat.  chap. 
52,  §  18,  is  independent  of  the  right  of  action 
under  §  17,  for  the  intestate's  loss  of  life, 
to  recover  a  sum  not  exceeding  $1,000  for 
the  widow  and  children  or  next  of  kin;  and 
both  actions  may  proceed  at  the  same  time, 
on  independent  grounds,  and  for  different 
purposes.  Bowes  v.  Boston,  155  Mass.  344, 
29  N.  E.  633,  15:  365 


35.  Bringing  suit  to  redeem  from  a  fore- 
closure sale  will  constitute  an  election  on 
the  part  of  the  plaintiff  to  affirm  the  sale, 
and  will  preclude  his  insisting  on  its  invalid- 
ity. Horn  V.  Indianapolis  Nat.  Bank,  125 
Ind.  381,  25  N.  E.  558,  9:676 

36.  Bringing  and  prosecuting  an  action  to 
set  aside  as  fraudulent  his  debtor's  assign- 
ment for  the  benefit  of  creditors  is  not  such 
an  election  of  remedies  as  will  debar  a  cred- 
itor from  sharing  in  a  distribution  of  the 
assigned  estate  made  pending  such  suit. 
Mills  V.  Parkhurst,  126  N.  Y.  89,  26  N.  E. 
1041,  13:  472 

37.  Replevin  of  a  horse  is  not  defeated  on 
the  ground  that  plaintiff  has  elected  another 
remedy  by  a  prior  attachment  of  the  prop- 
erty in  an  action  of  trover  and  judgment 
against  one  of  the  defendants  therein,  after 
which  the  horse  was  taken  in  execution,  but, 
before  satisfaction  of  the  judgment,  was  re- 
taken by  one  of  the  defendants  in  a  replevin 
action  which  is  still  pending  in  another 
state,  but  to  which  the  present  defendant 
is  not  a  party.  Miller  v.  Hyde,  161  Mass. 
472,  37  N.  E.  760,  25:  42 

38.  The  mere  institution  of  an  attachment 
suit  which  is  dismissed  before  judgment  and 
before  the  rights  of  others  have  intervened, 
without  in  any  way  injuring  the  defendant, 
does  not  constitute  a  binding  election  or  es- 
top the  plaintiff  from  thereafter  bringing 
a  replevin  suit  for  the  property,  although 
the  attachment  suit  was  based  upon  an  al- 
leged sale  to  the  defendant.  Johnson- Brink - 
man  Commission  Co.  v.  Missouri  P.  R.  Co. 
126  Mo.  344,  28  S.  W.  870,  26:  840 

39.  Admiralty  proceedings  in  a  Federal 
court  for  limitation  of  liability  under  the 
United  States  laws,  instituted  by  shipowners 
who  have  been  sued  for  damages  in  a  state 
court  with  other  persons  as  joint  tort  feas- 
ors, but  who  obtain  an  injunction  from  the 
Federal  court  against  further  proceedings 
against  them  in  the  state  court,  will  not  bar 
the  prosecution  of  the  action  for  damages 
against  the  other  defendants  in  the  state 
court  while  the  admiralty  proceedings  are 
pending  and  plaintiff  has  not  actually  re- 
ceived satisfaction,  or  the  equivalent  of  sat- 
isfaction, in  any  amount.  Grundel  v.  Union 
Iron  Works,  127  Cal.  438,  59  Pac.  826. 

47:467 
Actions  on  contract  generally. 
On  Bond  with  Penalty,  see  Bonds,  3,  4. 

40.  A  suit  to  set  aside  a  conveyance  and 
recover  back  the  property,  which  has  been 
abandoned  and  dismissed  without  trial, 
while  the  grantee  remains  in  the  undisturbed 
possession  and  enjoyment  of  the  property, 
will  not  preclude  the  enforcement  of  a  mort- 
gage in  consideration  of  the  conveyance  of 
the  property  securing  the  grantor's  support 
during  life.  Tuttle  v.  Burgett,  53  Ohio  St. 
498,  42  N.  E.  427,  30:  214 

41.  Bringing  a  suit  in  replevin  for  goods 
sold  and  discontinuing  it  before  judgment, 
without  obtaining  any  benefit  therefrom,  be- 
cause the  value  of  the  goods  was  paid  by 
the  plaintiff  to  satisfy  his  replevin  bond, 
does  not  ^stop  him  from  claiming  payment 
of  the  purchase  price  out  of  the  assets  of  tiie 


ELECTION  OF  REMEDIES,  II. 


1091 


estate  of  the  purchaser.     Bolton  Mines  Co. 
V.  Stokes,  82  Md.  50,  33  Atl.  491,  31:  789 

42.  An  election  to  bring  an  action  ex  con- 
tractu against  one  who  has  converted  prop- 
erty iipon  the  implied  contract  of  sale,  pre- 
cludes a  subsequent  action  for  conversion 
of  the  same  property  against  other  persons 
who  participated  in  the  same  acts  which 
have  already  been  treated  as  constituting  a 
sale  of  the  property.  Terry  v.  Hunger,  121 
N.  Y.  161,  24  K  E.  272,  8:  216 

43.  The  filing  and  prosecuting  to  decree  of 
a  bill,  by  the  surviving  members  of  a  part- 
nership, against  the  executor  of  a  deceased 
partner,  to  obtain  an  account  and  payment 
over  of  plaintiffs'  share  of  certain  partner- 
ship assets  which  came  to  defend£ti)t's  hands 
as  such  executor  and  have  been  sold  by  him, 
constitutes  a  ratification  of  such  sale,  and 
is  an  election  of  remedies  which  will  bar  a 
subsequent  action  of  tort  against  the  exec- 
utor for  a  wrongful  conversion  of  the  prop- 
erty. Bradley  v.  Brigham,  149  Mass.  141, 
21  N.  E.  301,  3:  507 

44.  An  election  by  a  servant  wrongfully 
discharged,  to  sue  upon  a  quantum  meru't 
for  services  actually  rendered,  is  a  bar  to  a 
subsequent  action  for  breach  of  the  contract. 
Keedy  v.  Long,  71  Md.  385,  18  Atl.  704, 

5:759 

45.  A  person  entitled  to  a  savings-bank 
deposit  which  has  been  paid,  without  author- 
ity, to  another  person,  has  a  right  of  action 
against  the  latter  for  money  had  and  re- 
ceived, or  against  the  bank  as  a  debtor  for 
the  deposit;  but  by  electing  to  bring  either 
action  he  loses  the  right  to  the  other;  and  a 
judgment  against  the  person  who  received 
the  money,  although  uncollectible,  is  a  bar 
to  an  action  against  the  bank.  Fowler  v. 
Bowery  Sav.  Bank,  113  N.  Y.  450,  21  N.  E. 
172,  4:  145 

46.  A  mortgagee  is  not  bound  by  his  elec- 
tion of  remedy  in  selling  land  under  his 
mortgage  and  attempting  to  defend  his  ti- 
tle thus  acquired,  so  as  to  preclude  his  sub- 
sequent claim  of  subrogation  to  earlier  se- 
curities. Union  Mortg.  B.  &  T.  Co.  v.  Peters, 
72  Miss.  1058,  18  So.  497,  30:  829 

47.  A  creditor  (holding  a  note  or  bond  se- 
cured by  a  mortgage  cannot,  while  prosecut- 
ing an  action  in  equity  for  foreclosure,  in 
which  he  asks  that  execution  may  be  award- 
ed to  him  for  any  balance  left  unpaid  by  the 

{jroceeds  of  the  sale,  maintain  an  action  at 
aw  on  the  note  or  bond.  Anderson  v.  Pil- 
gram,  30  S.  C.  499,  9  S.  E.  587,  4:  205 

48.  The  exercise  of  an  option  by  the  ven- 
dor in  a  conditional  sale,  to  enforce  payment 
of  a  note  given  for  the  purchase  price,  de- 
feats his  right  under  the  contract  to  retake 
the  property  upon  default,  although  he  is 
unable  fully  to  collect  the  note  because  of 
the  purchaser's  insolvency.  Crompton  v. 
Reach,  62  Conn.  25,  25  Atl.  446,  18:  187 

40.  A  subcontractor  may  pursue  samul- 
taneonsly  a  proceeding  to  enforce  his  me- 
chanic's Hen  against  the  property  and  an  ac- 
tion against  the  contractor  for  the  amount 
due  him,  in  which  he  attaches  funds  due  the 
contractor  from  the  property  ovimer.  Hunt 
V.  Darling,  26  R.  I.  480,  59  Atl.  398,      69:  497 


Contracts  procured  by  fraud. 

For  Editorial  Notes,  see  infra.  III. 

50.  One  who,  after  full  knowledge  of  th« 
fraud  and  deceit  by  which  he  has  been  in- 
duced to  make  a  contract  of  sale,  goes  for- 
ward and  executes  it  notwithstanding  the 
fraud,  cannot  recover  for  the  losses  caused 
by  the  deceit,  even  to  the  extent  of  the  dam- 
age sustained  by  partial  performance  before 
full  knowledge  of  the  deceit.  Simon  v. 
Goodyear  Metallic  Rubber  Shoe  Co.  44  C. 
C.  A.  612,  105  Fed.  573,  52:  745 

51.  An  election  of  remedies  is  not  made  by 
attachment  and  bill  in  chancery  based  on 
fraud  in  procuring  credit  on  a  purchase  by 
an  insolvent  corporation,  so  as  to  defeat  an 
action  on  subsequently  maturing  purchase- 
money  notes,  as  the  remedies  are  not  in- 
consistent, being  in  each  instance  for  the  re- 
covery of  the  price.  Crossman  v.  Universal 
Rubber  Co.  127  N.  Y.  34,  27  N.  E.  400, 

13:  91 

52.  Where  parties  who  are  entitled  to  re- 
scind a  contract  for  fraud  apply  for  and  ob- 
tain an  attachment  against  the  other  party 
as  their  debtor,  knowing  of  the  fraud,  they 
thereby  elect  their  remedy  and  waive  the 
right  to  disaffirm  the  contract;  and  a  sub- 
sequent discontinuance  of  the  attachment 
suit  will  not  restore  such  right,  especially 
where,  before  discontinuance,  part  of  the 
money  levied  on  was  paid  over  to  them. 
Conrow  v.  Little,  115  N.  Y.  387,  22  N.  E. 
346,  5:  693 

53.  A  complaint  for  the  rescission  of  a 
contract  on  the  ground  of  fraud  is  not  such 
a  conclusive  election  of  remedy  as  to  pre- 
clude an  abandonment  of  that  cause  of  ac- 
tion by  amending  the  complaint  so  as  to  de- 
mand damages  on  account  of  the  same  fraud. 
Cohoon  v.  Fisher,  146  Ind.  583,  45  N.  E.  787. 

36:  193 

54.  Recovering  judgment  for  the  full 
amount  due  on  a  note  and  mortgage,  and  the 
issuing  of  an  execution  thereon  which  is  re- 
turned nulla  bona,  will  not  prevent  an  action 
for  fraud  in  obtaining  the  loan.  Union  C. 
L.  Ins.  Co.  v.  Scheidler,  130  Ind.  214,  29  N. 
E.  1071,  15:  89 

55.  Recovering  judgment  against  the  cash- 
ier of  a  national  bank  on  his  indorsement  of 
a  note  secured,  by  a  transfer  of  the  bank's 
stock  to  him  individually,  which  indorse- 
ment and  transfer  were  merely  an  evasion 
of  the  law  against  loans  on  the  security 
of  the  stock,  is  not  a  bar  to  an  action  on  his 
bond  for  misappropriating  the  stock,  as  the 
remedies  are  concurrent  and  not  inconsis- 
tent. Walden  Nat.  Bank  v.  Birch,  130  N.  Y. 
221,  29  N.  E.  127,  14:  211 

56.  The  owner  of  commercial  paper  depos- 
ited in  a  bank  under  circumstances  render- 
ing its  receipt  a  fraud  may  be  relieved  from 
an  election  made  by  proving  the  claim  as  a 
general  creditor,  in  ignorance  that  the  better 
remedy  of  pursuing  the  proceeds  in  the 
hands  of  the  receiver  of  the  bank  is  permit- 
ted by  the  law,  where  no  detriment  has  been 
occasioned  by  such  action  to  other  parties, 
which  will  create  an  estoppel.  Standard  Oil 
Co.  V.  Hawkins,  46  U.  S.  App.  115.  74  Fed. 
395,  20  C.  C.  A.  468,  33:  739 


lOwS 


ELECTION  OF  REMEDIES,   III ;  ELECTIONS,  I.  a. 


III.  Editorial  Notes. 

In  general.     5:  693;*    13:  91,*  472.* 

When  remedies  not  concurrent.     4;  145.* 

Alternative  remedies.     4:  146.* 

Waiver  of  tort.     4:  146.* 

When  plaintiff  bound  to  elect.     4:  147.* 

Party  bound  by  tis  election.    4:  147.* 

Party  confined  to  remedy  first  adopted.    4: 

148.* 
Defense  of  another  action  pending.    4:  148." 
Estoppel  by  judgment.     4:  148.* 
What  is  conclusive  evidence  of  election.   13: 

91.* 
To  proceed  against  principal  or  agent.     2: 

812.* 
Between  assumpsit  and  trover.    8:  216.* 
For  injuries  resulting  in  death.    34:  788. 
Remedies  of  discharged  servant.    5:  760.* 
Remedies  on  note  and  mortgage;  rignt  to 

both.     4:  205.* 
Effect  of,  in  case  of   fraudulent   purchase. 

15:  89. 
Attachment  cases.     15:  90. 
On  conditional  sale.     32:  471. 
In  case  of  forfeiture  of  lease.    8:  760.* 
On  promise  for  benefit  of  third  person.    25: 

266. 
Conclusiveness  of.     8:  217.* 
Effect  of,  in  case  of  inconsistent  remedies. 

5:  693.* 


ELECTIONS. 


L  Voters. 

a.  Right  to  Vote;  Residence. 

b.  Registration. 
II.  Elections. 

a.  In  General. 

b.  Ballots. 

1.  Preparation;   Official  Acts. 

2.  Casting;  Acts  of  Voter. 

3.  Distinguishing  Marks. 

a.  In  General. 

b.  Voter's  Marks. 

c.  Result ;  Canvassing. 

d.  Election  Frauds;  Crimes. 

III.  Nominations;  Primaries;  Political  Com- 
mittees. 
rV.  Contests. 
V.  Editorial  Notes. 

Bet  on  Result  of,  see  Bills  and  Notes,  25,  60. 
On  Question  of  Issuance  of  Municipal  Bonds, 

see  Bonds,  III.  b,  3. 
Equal   Protection  and  Privileges  as  to,  see 

Constitutional  Law,  330-334. 
Of  Corporate  Officers,  see  Corporations,  213- 

215. 
At  Stockholders'  Meeting,  see  Corporations, 

y.  g.  2. 

•Tudieial  Notice  as  to,  see  Evidence,  37-41. 

Injunrtion  as  to,  see  Injunction,  I.  h. 

A.  to  Local  Option  Election,  see  Intoxi- 
cating Liquors,  61-64. 

Mandamus  Concerning,  see  Mandamus,  I.  f. 

Vote  of  City  for  Incurring  Indebtedness, 
see  Municipal  Corporations,   326-331. 

Of  Onioers  Generallv.  see  Officers,  I.  b. 

Conto'=t  of  Title  to  Office,  see  Officers.  L  f. 


Of  Parliamentary  Body,  see  Parliamentary 

Law. 
By  Church  Organization,  see  Religious  So- 
cieties, 7-10. 
School  Elections,  see  Schools,  III.  b. 
Title  of  Statute  as  to,  see  Statutes,  219-229, 

250. 
Pluralitv  of  Subjects  as  to,   see   Statutes, 

263. 
Special  Legislation  as  to,  see  Statutes,  400- 

402. 
Construction  of  Election  Law,  see  Statutes, 

439. 
Adopting  Construction  -of  Adopted  Statute 

as  to,  see  Statutes,  529. 


I.  Voters. 


a.  Right  to  Vote;  Residence. 

Disfranchisement  as  Bill  of  Attainder,  see 

Attainder,  2. 
Equal  Protection  as  to,   see  Constitutional 

Law,  332. 
Who  May  Vote  for  Road  Commissioner,  see 

Highways,  413. 
At  School  Meeting,  see  Schools,  III.  b,  2. 
For  Editorial  Notes,  see  infra,  V.  §§  1,  2. 

1.  There  is  no  natural  right  to  vote.  Con- 
tributing to  the  support  of  the  government 
may  be  made  a  condition  of  the  privilege. 
Frieszleben  \.  Shallcross,  9  Houst.  (Del.)  1, 
19  Atl.  576,  8:  337 

2.  The  right  to  vote  is  not  an  inherent  or 
absolute  right  generally  reserved  in  bills  of 
rights,  but  its  possession  is  dependent  upon 
constitutional  or  statutory  grant.  State  ex 
rel.  Lamar  v.  Dillon,  32  Fla.  545,  14  So.  383, 

22:  124 

3.  The  privilege  of  voting  is  not  an  in- 
herent or  natural  right  which  exists  in  the 
absence  of  constitutional  and  legislative 
grant,  and  which  such  grant  merely  limits 
or  restricts.,  but  it  is  a  right  which  does  not 
exist  except  as  it  is  given  by  the  Constitu- 
tion and  written  laws.  Cougar  v.  Timber- 
lake,  148  Ind.  38,  46  N.  E.  339,  37 :  644 

4.  All  persons  who  are  within  the  class 
designated  by  the  Constitution  are  entitled 
to  vote  for  all  officers  elective  by  the 
people,  whether  the  offices  to  be  filled  be 
created  by  the  Constitution  or  by  legis- 
lation; and  such  class  of  voters  cannot  be 
diminished  or  enlarged  bv  the  legislature. 
State  ex  rel.  Allison  v.  Blake  (N.  J.  Sup.)  57 
N.  .J.  L.  6,  29  Atl.  875,  25:  480 

5.  The  right  to  prescribe  the  "time  and 
manner  of  election,"  of  a  constitutional  of- 
ficer does  not  give  the  legislature  power  to 
enlartre  the  class  of  electors  whom  the 
Constitution  provides  shall  be  entitled  to 
vote  at  anv  election.  People  ex  rel.  Ahrens 
V.  English."  139  111.  622,  29  N.  E.  678.    15:  131 

G.  The  legislature  has  no  power  to  divide 
the  electors  of  the  state  into  classes,  and 
impose  upon  one  class  burdens  not  borne  by 
all  alike."  Brewer  v.  McClelland,  144  Ind. 
423.  32  N.  E.  299,  17:  845 

7.  A  statute  limiting  the  right  of  a  voter 
to   vote  for  part  only  of  the  officers  to  be 


ELEUTIUNS,  I.  a. 


1093 


chosen  to  a  certain  oflSce  is  not  in  violation 
of  a  constitutional  provision  that  he  shall 
be  entitled  "to  vote  at  all  elections,"— at 
least  in  Pennsylvania,  where  long-continued 
interpretation  of  the  state  Constitution  has 
sustained  such  states.  Cora,  ex  rel.  Mc- 
Cormiek  v.  Reeder,  171  Pa.  505,  33  Atl.  67, 

33:  141 

8.  The  express  provision  for  limited  vot- 
ing in  the  election  of  supreme  court  judges 
and  certain  other  specified  officers,  made  by 
the  Pennsylvania  Constitution,  does  not  by 
implication  exclude  the  right  of  the  legisla- 
ture to  adopt  the  same  system  in  the  elec- 
tion of  the  judges  of  a  new  court  created  by 
statute.  ,  Id. 

!».  A  statute  providing  that  each"  ward  of 
a  city  may  elect  one  alderman  does  not  vio- 
late Tex.  Const,  art.  6,  §  3,  providing  that 
all  qualified  electors  in  a  city  "shall  have 
the  right  to  vote  for  mayor  and  the  other 
elective  officers,"  as  this  does  not  neces- 
sarily mean  that  every  elective  officer  must 
be  elected  by  the  voters  of  the  entire  city. 
State  ex  rel.  Guerguin  v.  McAllister,  88  Tex. 
284,  31  S.  W.  187,  28:  523 

10.  Ncv.  Const,  art.  16,  §  1,  providing  that 
proposed  constitutional  amendments,  upon 
being  approved  or  ratified  "by  a  majority  of 
the  electors  qiialified  to  vote  for  members  of 
the  legislature  voting  thereon,"  shall  be- 
come a  part  of  the  Constitution,  does  not 
restrict  the  right  to  vote  at  a  special  elec- 
tion for  the  adoption  of  an  amendment  to 
those  only  who  were  qualified  to  vote  for 
the  members  of  the  legislature  who  voted 
upon  the  proposed  amendment,  but  all  the 
electors  of  the  state  are  entitled  to  vote 
upon  the  submission  thereof.  State  ex  rel. 
Boyle  V.  Board  of  Examiners,  21  Nev.  67, 
24  Pac.  614,  9:  385 

11.  The  legislature  cannot  disfranchise 
legal  voters  without  their  own  fault  or 
negligence,  in  an  attempt  to  prevent  fraud. 
Attorney  General  v.  Detroit,  78  Mich.  545, 
44  X.  W.  388,  7:  99 

12.  The  right  to  vote  secured  by  the  New 
Jersey  Constitution  can  only  become  oper- 
ative by  legislation;  and  any  reasonable 
legislative  regulation  for  the  purpose  of  se- 
curing an  enforced  secrecy  of  the  ballot  is 
not  a  deprivation  of  a  right  to  vote.  State, 
Ransom.  Prosecutor,  v.  Black  (N.  J.  Sup.)  54 
N.  J.  L.  446,  24  Atl.  489,  16:  769 

13.  Although  the  legislature  cannot 
change  or  add  to  constitutional  qualifi- 
cations of  electors  in  any  way,  where  the 
Constitution  does  not  confer  the  right  to 
vote  or  prescribe  the  qualifications  of 
voters,  it  is  competent  for  the  legislature,  as 
the  representative  of  the  law-making  power 
of  the  state,  to  do  so.  State  ex  rel.  Lamar 
V.  Dillon,  32  Fla.  545,  14  So.  383,  22:  124 
Qualifications  generally. 

At  Primary  Elections,  see  infra,  319-323. 

At  Election  on  Question  of  Issuing  Mu- 
nicipal Bonds,  sec  Bonds,  122. 

Ex  Post  Facto  Disfranchisement  as  Punish- 
ment for  Crime,  see  Constitutional  Law, 
113. 

Judicial  Notice  of,  see  Evidence,  38. 


See  also  supra,  1. 

For  Editorial  Notes,  see  infra,  V.  §§  1,  2. 

14.  A  person  cannot,  before  being  permit- 
ted to  vote,  be  compelled  to  give  proof  of 
qualifications  which,  under  the  Constitu- 
tion, he  does  not  have  to  possess.  Morris  v. 
Powell,  125  Ind.  281,  25  N.  E.  221,     9:  326 

15.  Where  a  state  Constitution  has  fixed 
and  defined  the  qualifications  necessary  to 
constitute  one  a  voter,  the  legislature  has 
no  power  to  require  additional  qualifications. 
Henee,  where  a  property  qualification  is  not 
among  those  fixed  by  the  Constitution,  a 
statute  requiring  a  certain  class  of  persons, 
in  order  to  entitle  themselves  to  vote,  to 
produce  certificates  which  can  only  be  ob- 
tained in  case  they  own  propertv,  is  void. 

Id. 

16.  The  legislature,  having  the  power  un- 
der the  Florida  Constitution  to  make  the 
payment  of  a  capitation  tax  not  exceeding 
$1  a  year  a  prerequisite  for  voting,  the  pay- 
ment of  delinquent  capitation  taxes  may  be 
required  provided  they  do  not  amount  to 
more  than  $1  for  each  year.  State  ex  rel. 
Lamar  v.  Dillon,  32  Fla.  545,  14  So.  383. 

22:  124 

17.  Payment  of  poll  tax  was  not  made  a 
qualification  for  voting  at  an  election  as  to 
issuing  bonds  under  the  Florida  act  of  -Tune 
11,  1891,  for  the  improvement  of  the  navi- 
gation of  the  St.  Johns  river.  Stockton  v. 
Powell,  29  Fla.   1,  10  So.  688,  15:  42 

18.  The  exclusion  of  a  person  from  the  as- 
sessment list  for  twelve  months  on  failure 
to  pay  his  county  poll  tax,  in  consequence 
of  which  he  may  be  precluded  from  being 
qualified  to  vote  during  that  year,  is  not  a 
violation  of  Del.  Const,  art.  4,  §  1,  which 
provides  that  a  citizen  otherwise  qualified, 
who  has  "within  two  years  next  before  the 
election  paid  a  county  tax  which  shall  have 
been  assessed  at  least  six  months  before  the 
election,  shall  enjoy  the  right  of  an  elector," 
or  of  art.  1,  §  3,  which  provides  that  "all 
elections,  shall  be  free  and  equal."  Frieszle- 
ben  v.  Shallcross,  9  Houst.  (Del.)  1,  19  Atl. 
576,  8:  337 

19.  A  statute  giving  a  voter  an  opportuni- 
ty to  qualify  by  registering  and  himself 
paying  his  own  poll  taxes  for  certain  years 
does  not  deprive  him  of  his  right  to  pay  his 
said  poll  taxes  through  an  authorized  agent. 
State  ex  rel.  Lamar  v.  Dillon,  32  Fla.  .545, 
14  So.  383,  22:  124 

20.  A  person  is  not  "able  to  read  the  Con- 
stitution of  this  state"  within  the  meaning 
of  Wyo.  Const,  art.  6,  §  9,  unless  he  can  read 
it  in  the  English  language,  instead  of  a 
translation.  Rasmussen  v.  Baker,  7  Wvo. 
117,  50  Pac.  819,  38:  773 
Women. 

At  School  Election,  see  Schools,  65,  75-85. 
For  Editorial  Notes,  see  infra,  V.  §  1. 

21.  The  right  to  vote  is  not  conferred  up- 
on women  by  the  14th  Amendment  to  the 
Federal  Constitution.  Cougar  v.  Timber- 
lake,  148  Ind.  .38,  46  N.  E.  339,  37:  644 

22.  Failure  to  negative  the  right  of  fe- 
male citizens  to  vote  by  any  express  pro- 
vision   does    not    leave    them    such    right 


1094 


ELECTIONS.  I.  a. 


under  Ind.  Const,  art.  2,  §  2,  which  gives  the 
right  in  express  terms  to  "male"  citizens. 

23.  In  Wash.  Terr,  organic  act  (U.  S.  Rev. 
Stat.  §  5506),  providing  that  the  qualifi- 
cations of  voters  shall  be  as  prescribed  by 
the  legislative  assembly,  provided  that  the 
right  of  suffrage  shall  be  exercised  only  by 
adult  citizens  of  the  United  States,  the 
word  "citizens"  means  only  male  inhabit- 
ants, and  the  act  of  Jan.  18,  1888,  conferring 
the  right  of  suffrage  upon  women,  is  void. 
Bloomer  v.  Todd,  3  Wash.  Terr.  599,  19  Pac. 
135,  1:111 

24.  The  right  of  women  to  vote  for  city 
or  school  officers,  under  Kan.  Sess.  Laws 
1887,  chap.  230,  does  not  extend  to  the  elec- 
tion of  justice  of  the  peace  in  cities,  as  they 
are  township  officers,  rather  than  city  offi- 
cers. State  ex  rel.  Scott  v.  Parry,  52  Kan. 
1,  33  Pac.  956,  21:  669 

25.  An  act  to  give  women  the  right  to 
vote  for  school,  village,  and  city  officers,  is 
in  violation  of  a  Constitution  which  gives  to 
men  only  the  right  to  vote  "in  all  elections," 
although  other  provisions  of  the  Constitu- 
tion allow  the  legislature  to  provide  for  the 
organization  of  cities  and  villages,  and  to  di- 
rect the  manner  in  which  their  officers, 
other  than  judicial,  shall  be  elected  or  ap- 
pointed. Coffin  V.  Thompson,  97  Mich.  188, 
.56N.  W.  567,  21:662 
At  municipal  elections. 

Right  of  Women  to  Vote,  see  supra,  24,  25. 

26.  The  qualifications  of  voters  at  munici- 
pal elections  may  be  prescribed  by  the  legis- 
lature, as  by  requiring  them  to  be  taxpayers, 
in  the  absence  of  any  constitutional  pro- 
vision to  the  contrary.  Hanna  v.  Young,  84 
Md.  179,  35  Atl.  674,  34:  55 

27.  The  right  to  vote  "at  all  elections," 
given  by  Md.  Const,  art.  1,  §  1,  to  every 
male  citizen  of  full  age  "who  has  been  a 
resident  of  the  state  for  one  year  and  of 
the  legislative  district  of  Baltimore  city, 
or  of  the  county  in  which  he  may  offer  to 
vote,  for  six  months,"  does  not  extend  to 
municipal  elections  outside  of  the  city  of 
Baltimore.  Id. 

28.  Elections  for  municipal  officers  are  not 
within  Fla.  Const,  art.  6,  §  1,  prescribing  the 
qualifications  of  electors  at  all  elections  un- 
der it,  but  are  subject  to  statutory  regu- 
lation, and  it  is  competent  for  the  legis- 
lature to  prescribe  the  qualifications  of 
voters  at  the  same.  State  ex  rel.  Lamar  v. 
Dillon,  32  Fla.  545.  14  So.  383,  22:  124 

29.  General  provisions  of  the  criminal  law 
disqualifying  persons  convicted  of  certain 
crimes  from  voting  at  any  election  can  and 
must  be  construed  in  harmony  with  Fla. 
Laws  1893,  chap.  4301,  making  residents 
who  were  qualified  to  vote  at  the  preceding 
general  election  the  electors  at  a  city  elec- 
tion. Id. 
Residence. 

Conclusivcnoss  of  Finding  as  to,  see  Appeal 

and  Error.  776. 
For  Editorial  yotes,  spo  infra.  V.  §§  1.  2. 

30.  A  voter  need  not  have  any  particular 
spot   which   he    calls    "home,"    provided    he 


makes  his  home,  in  the  sense  of  having  no 
other  home,  anywhere  or  in  however  many 
places,  for  the  required  times,  within  the 
limits  of  the  state  and  the  voting  district. 
Langhammer  v.  Munter,  80  Md.  518,  31  Atl. 
300,  27 :  330 

31.  The  right  to  vote  in  the  district  in 
which  a  steamer  is  tied  up  while  at  her 
home  port  is  not  acquired  by  the  purser, 
who  lives  on  the  steamer,  but  who  had  pre- 
viously acquired  a  voting  residence  in  an- 
other district  of  the  city.  Jones  v.  Skinner, 
87  Md.  560,  40  Atl.  381,  40:  752 

32.  A  voting  residence  at  the  home  port 
of  a  steamer  is  not  acquired  by  a  clerk  who 
sleeps  in  a  room  on  the  boat  and  who  has 
no  other  room  or  place  to  live  in  and  is  un- 
married. Howard  v.  Skinner,  87  Md.  556, 
40  Atl.  379,  40:  753 

33.  A  single  man,  having  no  family  re- 
lations in  Detroit,  or  any  household  of  his 
own  of  which  he  is  a  member,  who  lodges  in 
one  ward  and  boards  in  another,  is  a  resi- 
dent of  the  latter  for  the  purposes  of  regis- 
tration as  an  elector.  All  the  former 
charters  of  the  city  having  contained  ex- 
press provisions  to  this  effect,  which  have 
been  also  incorporated  by  the  legislature 
into  charters  of  other  cities  in  the  state  in 
numerous  instances,  without  adopting  a 
contrary  rule  in  any  instance,  the  law  in 
this  respect  must  be  held  to  remain  the 
same,  although  the  charter  of  1887  is  en- 
tirely silent  on  the  subject,  the  changes 
made  from  former  charters  being  on  entire- 
ly distinct  matters.  Warren  v.  Board  of 
Registration,  72  Mich.  398,  40  N.  W.  553, 

2:  203 

34.  Building  and  furnishing  a  new  house, 
with  the  purpose  of  living  in  it,  does  not 
render  the  owner  an  inhabitant  of  the 
ward  in  which  it  is  situated,  for  the  pur- 
pose of  becoming  an  elector  therein,  so  long 
as  he  continues,  with  his  wife,  the  actual  oc- 
cupancy of  leased  premises  in  another  ward. 
State  ex  rel.  Goodell  v.  McGeary,  69  Vt. 
461,  38  Atl.  16.5,  44:  446 

35.  The  residence  of  an  elector  is  not 
changed  by  reason  of  his  presence  and  sup- 
port in  a  soldiers'  home  which  is  maintained 
by  the  state  for  disabled  and  dependent 
soldiers,  under  a  constitutional  provision 
that  "no  elector  shall  be  deemed  to  have 
gained  or  lo.st  a  residence  by  reason  of  being 
employed  in  the  service  of  the  I'nited 
States  or  in  this  state,  nor  while  a  student 
at  any  seminary  of  learning,  nor  while  kept 
at  any  almshouse  or  any  asylum  at  public 
expense,  nor  while  confined  in  any  public 
prison."  Wolcott  v.  Holcomb,  97  Mich.  361, 
56N.  W.  837,  23:215 

3oa.  The  words  "any  asylum"  at  which 
persons  are  kept  at  public  expense,  within 
the  meaning  of  the  Michigan  Constitution 
providing  that  residence  for  voting  purposes 
shall  not  be  changed  by  staying  in  such 
institutions,  includes  a  soldier's  home  sup- 
|V>rted  by  the  state.  Id- 

36.  A  member  of  the  Western  Branch  of 
the  Xational  Home  for  Disabled  Volunteer 
^olflier*.   while   maintained  therein   at   pu%- 


ELECTIONS.  I.  h 


1095 


lie  expense,  is  not  deprived  of  the  right  to 
acquire  a  residence  there  for  voting  pur- 
poses, by  Kan.  Const,  art.  5,  §  3,  providing 
that  for  voting  purposes  no  person  vhile 
kept  at  any  almshouse  or  asylum  at  public 
expense  shall,  by  reason  of  his  presence,  be 
deemed  to  have  gained  a  residence.  Cory  v. 
Spencer,  07  Kan.  048,  73  Pac.  920,       63:  '.'75 

37.  A  constitutional  provision  which  pro- 
vides that,  "for  the  purpose  of  voting,  no 
person  shall  be  deemed  to  have  gained  or 
lost  a  residence  by  reason  of  his  presence  or 
absence  .  .  .  while  kept  at  any  alms- 
house or  other  asylum  at  public  expense," 
preserves  the  voting  status  of  the  immates 
of  a  soldiers'  home  at  the  time  of  their  en- 
try thereto,  and  such  inmates  cannot  ac- 
quire, by  reason  of  their  presence  in  such 
soldiers'  home,  and  while  kept  at  public  ex- 
pense, the  right  to  vote  in  the  county  and 
precinct  in  which  such  institution  is  lo- 
cated. Powell  V.  Spackraan,  7  Idaho,  692 
6.5  Pac.  503,  54:  378 

38.  The  inability  of  students  to  acquire  a 
residence  for  roti'i.T  purposes  merely  by  at- 
tending an  institutio:'  of  learning,  under  N. 
Y.  Const,  art.  2,  §  3,  extends  to  students  in 
a  Roman  Catholic  seminary  studying  for 
the  priesthood,  although  each  of  them  has 
renounced  all  other  residence  or  home,  and 
on  admission  to  the  priesthood  will  continue 
in  the  seminary  until  assigned  elsewhere  by 
his  ecclesiastical  superiors.  Re  Barry,  164 
N.  Y.  18,  58  N.  E.  12.  52:  831 

39.  Residence  in  a  military  reservation  of 
the  Federal  government  will  not  give  one  a 
right  to  vote  at  a  state  election  held  in  the 
county  where  the  reservation  is  located. 
McMahon  v.  Polk,  10  S.  D.  296,  73  N.  W.  77. 

47 :  830 

40.  The  fact  that  a  person  is  improperly 
and  illegally  permitted  to  vote  at  another 
place  will  not  alone  disqualify  him  from 
continuing  to  vote  at  his  actual  residencp. 
Jones  v.  Skinner,  87  Md.  560,  40  Atl.  381, 

40:  752 

b.  Registration. 

Challenges,  Proof  of  Right  to  Vote,  see 
infra,  78-83. 

Indictment  for  Illegal  Registration,  see  In- 
dictment, etc.,  32. 

Injunction  against,  see  Injunction,  246. 

Title  of  Statute  as  to.  see  Statutes,  229. 

For  Editorial  Notes,  see  infra,  V.  §§-1,  2. 

41.  No  registry  law  is  valid  which  de- 
prives the  elector  of  his  constitutional  right 
to  vote  by  any  regulation  with  which  it  is 
impossible  for  him  to  comply.  Attorney 
General  v.  Detroit,  78  Mich.  545,  44  N.  W. 
388,  7:99 

A'2.  Where  registration  is  not  made  by  the 
Constitution  an  electoral  qualification,  a 
rpfristry  law  can  be  sustained  only  as  pro- 
viding f  reasonable  mode  or  method  by 
which  the  qualifications  of  an  elector  may 
be  ascertained,  or  as  regulating  reasonably 
the  exercise  of  the  right  to  vote.  State  ex 
rel.  Bovie  v.  Board  of  Examiners,  21  Nev. 
67,  24  Pac.  614,  9:  .385 


43.  A  constitutional  provision  which  re- 
quires a  residence  in  the  town  or  ward  of 
ten  days  onlj'  as  a  condition  of  voting  is 
violated  by  a  law  which  compels  registra- 
tion, and  fixes  the  last  day  therefor  on  the 
fourth  Monday  of  October,  which  in  some 
years  will  be  more  than  ten  days  before 
election  dav.  Attorney  General  v.  Detroit, 
78  Mich,  54'5,  44  N.  W,  388,  7:  99 

44.  A  law  providing  but  five  days  in  the 
whole  year  upon  which  a  person  can  be 
registered  to  qualify  himself  as  a  voter,  re- 
quiring his  personal  application  therefor,- 
with  no  exception  in  case  of  his  sickness  or 
absence  on  those  days,  is  unreasonable  and 
void.  Id, 

45.  A  registration  law  which  fixes  three 
days  in  a  certain  month  upon  which  voters 
can  register,  and  requires  everyone  to  appear 
personally  before  the  board  in  order  to  be 
registered,  and  provides  that  if  anyone  fails 
to  register  he  cannot  vote  at  any  election 
within  the  ensuing  year,  is  in  conflict  with 
constitutional  provisions  declaring  that  all 
elections  shall  be  free  and  equal,  and  that 
every  free  white  male  citizen  twenty-one 
years  of  age,  who  has  resided  in  the  state 
two  years,  ot  in  the  county,  city,  or  town 
one  year,  and  in  the  election  precinct  sixty 
days,  prior  to  the  election,  shall  be  entitled 
to  vote.  Owensboro  v.  Hickman,  90  Ky.  629, 
14  S.  W.  688,  10:  224 

46.  "V^Tiere  the  Constitution  requires  resi- 
dence in  a  A'oting  precinct  for  only  thirty 
days  before  an  election  to  entitle  a  per- 
son to  vote,  the  legislature  cannot  require 
him  to  register  ninety  days  before  an  elec- 
tion, if  the  act  of  registering  includes  the 
fixing  and  designation  of  the  precinct  in 
which  he  shall  be  entitled  to  vote.  Morris 
v.  Powell,  125  Tnd.  281,  25  N.  E.  221,    9:  326 

47.  A  requirement  that  an  intending  voter 
shall,  at  the  time  of  registering,  sign  a 
statement  as  to  his  lodging  place,  and  that 
he  is  a  bona  fide  resident  of  .the  precinct  in 
which  he  lodges,  the  production  of  a  certifi- 
cate of  which  at  election  time  is  necessary 
to  show  his  right  to  vote, — is  an  attempt  to 
compel  him  to  designate,  at  the  time  of 
registration,  the  precinct  in  which  he  shall 
be  entitled  to  vote.  Id, 

48.  The  adoption  of  the  registry  list  of  a 
general  election  held  the  preceding  year  is  a 
reasonable  regulation,  which  will  not  invali- 
date a  special  election  for  the  approval  of 
proposed  constitutional  amendments,  held 
three  months  after  the  general  election. 
State  ex  rel.  Bovle  v.  Board  of  Examiners. 
21  Nev.  67,  24  Pac.  614,  9:  385 

49.  Since  registration  is  not  an  electoral 
qualification,  a  statute  providing  for  the 
siibmission  of  proposed  constitutional 
amendments  to  a  vote  of  the  people  at  a 
special  election  does  not  violate  Nev.  Const, 
art.  16.  §  1.  on  the  ground  that  the  voters 
registered  under  the  act  are  not  qualified  to 
vote  upon  the  proposed  amendments  be- 
cause of  not  being,  at  the  date  of  the 
special  election,  registered  so  as  to  have  en- 
titled them  to  vote  for  a  member  of  the  leg- 
islature which  voted  to  submit  the  amend- 
ments to  the  electors.  Id. 


1096 


ELECTIONS,  II.  a. 


50.  A  registration  law  providing  that  for 
the  next  registration  the  inspectors  of  the 
last  election  shall  act,  and  that  they  can- 
not act  out  of  their  own  precincts,  and 
which  repeals  all  other  registration  laws,  is 
inoperative  where  the  act  provides  for 
changing  and  increasing  the  number  of  the 
precincts  in  such  a  way  that  some  would 
have  more  than  their  proportion  of  in- 
spectors residing  therein,  some  less,  and 
some  none  at  all.  Attorney  General  v.  De- 
troit, 78  Mich.  545,  44  N.  W.  388,  7:  99 

51.  One  who  on  his  application  for  reg- 
istration is  a  minor  and  unnaturalized,  but 
who  states  that  he  will  soon  become  of  age 
and  will  then  apply  for  naturalization,  and 
if  successful  present  his  papers  to  the  regis- 
ters, and  whose  name  is  entered  in  the 
duplicate  registers,  but  not  as  a  qualified 
voter,  should  have  his  name  entered  as  such 
on  applying  to  the  board,  after  attaining  his 
majority  and  being  naturalized,  when  it  is 
in  session  for  revising  the  register,  under 
Md.  act  189G,  chap.  202,  §  16,  If  4,  providing 
that  any  persons  constitutionally  qualified 
to  vote  and  personally  applying  for  regis- 
tration shall  be  registered  as  qualified 
votors,  and  §  21,  providing  that  the  board 
shall  remain  in  session  for  the  sole  purpose 
of  revising  their  registry,  and  no  new  name 
shall  be  added.  Barret  v.  Taylor,  85  Md. 
173.  36  Atl.  708,  36:  129 

52.  Registering  a  qualified  voter  without 
his  appearing  in  person  as  required  by  law, 
when  done  without  fraudulent  intent,  is  not 
punishable  as  a  felony  under  the  Kansas 
statute,  which  declares  that  a  violation  of 
the  statute  shall  be  a  felony.  State  v. 
Eush,  47  Kan.  201,  27  Pac.  834,  13:  607 
Discrimination. 

53.  Wliere  the  Constitution  requires  the 
legislature  to  provide  for  the  registration  of 
all  persons  entitled  to  vote,  a  law  providing 
for  the  registration  of  a  class  or  part  only 
of  the  voters  is  void.  Morris  v.  Powell,  125 
Ind.  281,  25  M.  E.  221,  9:  326 

54.  A  law  which  requires  one  person  to  be 
repiptered  in  order  to  be  entitled  to  vote, 
while  it  permits  another  person  to  vote 
without  being  registered,  is  void  under  a 
Constitution  which  prescribes  registration 
according  to  law  as  one  of  the  qualifications 
of  voters.  Id. 

55.  A  law  imposing  extra  burdens  and 
hardship  in  the  matter  of  registration,  upon 
persons  entitled  to  vote  under  the  Constitu- 
tion, but  who  are  absent  from  the  state  for 
a  period  of  six  months  or  more,  or  who  are 
compelled  to  change  their  places  of  resi- 
dence from  one  county  to  another  within  six 
months  next  preceding  an  election,  in  order 
to  bo  permitted  to  cast  their  votes,  is  in- 
valid. Hence  a  law  which  requires  such 
persojis  |p  register  n^inety  days  before  an 
election,  while  other  persons  are  not  re- 
quired to  register  at  all.  is  void.  Id. 

56.  A  st.itnte  requiring  a  notice  to  be 
reiristcrod  in  the  county  clerk's  office,  of  a 
claim  to  be  a  leiral  voter,  as  a  condition  of 
a  rJEflit  to  vote,  by  every  person  who  since 
voting  has  been  absent  from  the  state  for 
eix  nionth>=.  or  leaves  it  with  intent  to  vote 


elsewhere,  or  has  voted  elsewhere,  or  has 
not  resided  at  least  six  months  within  the 
county,  is  in  violation  of  constitutional  pro- 
visions for  a  general  registration  law  and 
giving  every  male  citizen  of  twenty-one 
years  of  age  who  has  resided  in  the  state  six 
months,  in  the  township  sixty  days,  and  in 
the  ward  or  precinct  thirty  days,  im- 
mediately preceding  the  election,  the  right 
to  vote,  and  also  providing  that  no  person 
shall  lose  his  residence  by  reason  of  his  ab- 
sence on  busine'ss  of  the  state  or  of  the 
United  States.  Brewer  v.  McClelland,  144 
Ind.  423,  32  N.  E.  299,  17:  845 

57.  A  provision  that  naturalized  voters,  in 
order  to  be  registered,  must  produce  proper 
certificates  of  naturalization,  or  declaration 
of  intention,  or  satisfactory  evidence  there- 
of other  than  the  oath  of  the  applicant,  and 
which  requires  the  name  of  the  court  in 
which  such  proceedings  were  had,  and  also 
the  date  thereof,  to  be  proved, — is  unreason- 
able and  void.  Attorney  General  v.  Detroit, 
78  Mich.  545,  44  N.  W.  388,  7:  99 

58.  Male  inhabitants  residing  in  the  state 
June  24,  1835,  being  made  citizens  of  Michi- 
gan by  the  Constitution  although  neither 
native-born  nor  naturalized,  a  law  which 
compels  registration  of  voters,  and  provides 
only  for  native-bom  or  naturalized  citizens, 
is  not  valid.  Id. 

59.  The  legislature  may  lawfully  require 
a  person  coming  into  the  state  to  take  up 
his  residence  to  evidence  that  fact  to  en- 
title himself  to  the  right  to  exercise  the 
elective  franchise  by  registering  the  intent 
in  a  public  record,  and  may  deny  him  the 
right  to  have  his  name  placed  on  the  regis- 
try of  voters  until  the  expiration  of  a  cer- 
tain time  after  the  making  of  such  record. 
Pope  V.   Williams,  98  Md.   59,   56  Atl.  543, 

66:  398 


II.  Elections, 
a.  In  General. 

For  Creation  of  New  County,  see  Counties, 
3,  4. 

Attaching  Unorganized  to  Organized  County 
for  Purposes  of,  see  Counties,  13. 

As  to  Change  of  County  Seat,  see  Counties, 
18-21. 

Power  of  Equity  to  Protect,  see  Equity,  5, 
6. 

Election  of  Justice  of  the  Peace,  see  Jus- 
tice of  the  Peace,  1. 

Special  Election  for  Installation  of  Light 
Plant,  see  Municipal  Corporations,  390. 

On  Amendment  of  City  Charter,  see  Munic- 
ipal  Corporations,  42-46. 

For  Editorial  Xotes,  see  infra.  V.  §§  3,  4. 

60.  The  annual  election  for  municipal 
officers  is  a  general  election  within  the 
meaning  of  a  constitutional  And  statutory 
provision  authorizing  the  submission  of  the 
question  of  reorganization,  where  the  elec- 
tions are  classified  only  as  general  and  spe- 
cial. People  ex  rel.  Wells  v.  Berkelev.  102 
Cal.  298.  36  Pac.  591,  23:  838 


ELECTIONS,  II.  a. 


1097 


61.  An  election  law  passed  for  the  pur- 
pose of  securing  purity  of  ballot  will  be  lib- 
erally construed  and  all  doubt  solved  in  its 
favor.  Courts  will  not  declare  it  invalid  be- 
cause its  enforcement  may  result  in  the 
restriction  of  the  right  to  vote.  Detroit  v. 
Rush,  82  Mich.  532,  46  N.  W.  951,       10:  171 

62.  An  elector  may  lawfully  vote  for  the 
same  man  as  a  candidate  for  two  incompati- 
He  offices,  at  the  same  election.  Misch  v. 
RusselL  13G  111.  22,  26  N.  E.  528,       12:  125 

63.  The  fact  that  an  election  law  requires 
expenses  to  be  incurred  in  fitting  up  polling 
places,  without  making  any  provision  as  to 
how  such  expenses  shall  be  incurred,  does 
not  invalidate  the  law,  if  it  ^imposes  the 
duty  of  providing  such  polling  place  upon  a 
municipality,  since,  where  such  duty  is  im- 
posed on  a  municipality,  it  is  also  its  duty 
to  provide  for  the  payment  of  the  expenses. 
Detroit  v.  Rush,  82  Mich.  532,  46  N.  W.  951, 

10:  171 

64.  An  election  held  under  a  statute  with 
an  invalid  provision  making  the  action  of  a 
ministerial  board  conclusive  on  a  voter's 
right  to  cast  his  ballot  will  not,  on  this  ac- 
count alone,  be  set  aside,  in  the  absence  of 
any  showing  that  voters  were  deprived  by 
tfie  action  of  such  board  of  any  rights  con- 
ferred by  the  statute.  State  ex  rel.  Lamar 
V.  Dillon,  32  Fla.  545,  14  So.  383,  22:  124 
To  fill  vacancy. 

65.  A  vacancy  in  office  caused  by  the 
death  of  a  county  clerk  within  fifteen  days 
before  a  general  election  should  be  filled  at 
that  election  under  Mo.  Stat.  §  1964,  read  in 
connection  with  §  4766,  as  amended  by  Mo. 
Laws  1893,  p.  155.  State  ex  rel.  Crow  v. 
Hostetter,  137  Mo.  636,  39  S.  W.  270, 

38:  208 

66.  An  election  to  fill  a  vacancy  in  the 
office  of  lieutenant  governor  can  be  held  in 
the  absence  of  any  constitutional  or  stat- 
utory provision  for  it.  People  ex  rel.  Lynch 
V.  Budd,  114  Cal.  168,  45  Pac.   1060,  34:  46 

67.  A  mayor's  resignation  of  his  office,  to 
take  effect  on  a  certain  day,  which  is  more 
than  thirty  days  before  election,  creates  a 
vacancy  at  that  date,  within  the  meaning 
of  Ohio  Rev.  Stat.  §  1754,  providing  for 
the  filling  of  vacancies  which  have  occurred 
more  than  thirty  days  previous  thereto,  at 
a  municipal  election,  although  the  resigna- 
tion was  not  accepted  until  less  than  thirty 
days  before  the  election.  Reiter  v.  State 
ex  rel.  Durrell,  51  Ohio  St.  74,  36  N.  E.  943, 

23:  681 

Notice  or  proclamation. 

On  Question  of  Issuing  Municipal  Bonds, 
see  Bonds,  120,  121. 

On  Proposition  to  Relocate  County  Seat, 
see  Counties,  19,  20. 

Of  Election  of  Presidential  Electors,  see 
Presidential  Electors,  5. 

Injunction  against  diving  Out  Notice,  see 
Injunction,  243,  248. 

Mandamus  to  Compel  Issuance  of,  see  Man- 
damus, 122. 

Mayor's  Power  to  Proclaim,  see  Municipal 
Corporations,  599. 

68.  A  hotel  is  a  public  place,  within  a 
statutory   provision   for   posting   notices   of 


an  election  in  public  places.     Pritchard  v. 
Magoun,  109  Iowa,  364,  80  N.  W.  512, 

46:  381 

69.  Failure  to  include  in  the  election  no- 
tice the  name  of  a  certain  office  to  be  filled 
does  not  defeat  the  validity  of  an  election 
to  that  office, — at  least  where  it  appears 
that  the  electors  generally  were  apprised  of 
the  fact  and  voted  on  the  question.  State 
ex  rel.  Berge  v.  Lansing,  46  Neb.  514,  64  N. 
W.  1104,  35:  124 

70.  The  refusal  of  the  proper  officers  to 
give  official  notice  of  an  election  to  fill  a 
vacancy  in  an  office,  because  of  their  claim 
(based  on  an  unconstitutional  statute)  that 
no  vacancy  exists,  will  not  defeat  an  elec- 
tion of  the  only  candidate  for  the  office,  who 
received  about  the  same  number  of  votes 
as  other  candidates  of  his  party,  who  were 
elected  by  a  plurality,  where  the  electors 
had  nearly,  if  not  quite,  as  full  notice  of  his 
candidacy  as  if  the  official  notice  had  been 
given,  and  the  result  would  not  have  been 
difl'erent  if  all  the  electors  had  voted.  Ad- 
sit  V.  Secretary  of  State,  84  Mich.  420,  48  N. 
W.  31,  11:  534 

71.  A  misrecital  of  some  of  the  provisions 
of  a  statute  in  the  proclamation  of  an  elec- 
tion called  to  decide  upon  its  acceptance 
will  not  make  the  election  void,  where  the 
statute  does  not  require  their  insertion,  and 
there  is  nothing  to  show  that  the  error  af- 
fected the  election.  Datz  v.  Cleveland  (N. 
J.  Err.  &  App.)  52  N.  J.  L.  188,  200,  19  Atl. 
17,  20  Atl.  317,  7:431 
Regulations;    mode  of  voting. 

72.  Laws  regulating  elections  are  not  un- 
constitutional unless  they  deny  the  fran- 
chise or  render  its  exercise  so  difficult  and 
dangerous  as  to  amount  to  a  denial.  De 
Walt  V.  Bartley,  146  Pa.  529,  24  Atl.  185, 

15:  771 

73.  The  legislature,  within -the  terms  of 
the  Constitution,  may  adopt  such  reasonable 
regulations  and  restrictions  for  the  exercise 
of  the  elective  fi*anchise  as  may  be  deemed 
necessary  to  prevent  intimidation,  fraud, 
bribery,  or  other  corrupt  practices,  provided 
that  the  voting  be  by  ballot  and  that  the 
person  easting  the  vote  do  so  in  absolute 
secrecy.  Tavlor  v.  Bleakley,  55  Kan.  1,  39 
Pac.  1045,     "  28:  683 

74.  The  clause  of  an  election  act,  prohibit- 
ing any  electioneering  on  an  election  day 
within  100  feet  of  any  polling  place,  is  a 
reasonable  police  regulation  to  secure  good 
order  about  the  polls.  State,  Ransom,  Pros- 
ecutor, V.  Black  (N.  J.  Sup.)  54  N.  J.  L.  446, 
24  Atl.  489,  16:  769 

75.  Under  the  Michigan  election  law  of 
1889,  the  booths  must  be  so  constructed  as 
to  secure  secrecy  to  the  voter  in  the  prepa- 
ration of  his  vote,  but  so  as  not  to  obstruct 
the  view  between  the  public  and  the  voter 
when  he  deposits  his  vote.  Detroit  v.  Rush, 
82  ^lirb.  532,  46  N.  W.  951,  10:  171 

76.  The  provisions  relating  to  the  making 
of  regulations  as  to  the  time  a  voter  shall 
be  permitted  to  remain  in  a  booth,  contained 
in  3Tich.  act  1889,  §  30,  apply  to  municipali- 
ties whose  elections  are  governed  by  special 
enactments,  although  the  act  does  not  in  ex- 


1098 


ELECTIONS,  II.  a. 


press  terms  make  them  applicable  to  such 
municipalities.  Id. 

77.  The  provisions  of  FI^  Const,  art.  6, 
§  6,  that  in  all  elections  by  the  people  the 
vote  shall  be  by  ballot,  applies  to  municipal 
elections.  State  ex  rel.  Lamar  v.  Dillon,  32 
Fla.  545,  14  So.  383,  22:  124 
Challenges;  proof  of  right  to  vote. 
Votinw  without  Proof  of  Right  as  Crime,  see 

infra,  275. 
See  also  supra,  14,  15. 

78.  Inspectors  of  election  have  no  right  to 
reject  a  ballot  offered  by  a  registered  voter 
who  tenders  the  oath  prescribed  by  statute, 
where  the  statute  says  that  if  the  person 
challenged  "shall  take  such  oath  his  vote 
shall  be-  received."  Wolcott  v.  Holcomb,  97 
Mich.  .361,  56  N.  W.  837,  23:  215 

79.  Ta.  act  Jan.  30,  1874  (P.  L.  31),  regu- 
lating elections  and  requiring  unregistered 
voters  to  prove  their  qualifications  by  the 
affidavits  of  themselves  and  of  a  qualified 
elector,  does  not  violate  Pa.  Const,  art.  8, 
§  7,  declaring  that  no  elector  shall  be  de- 
prived of  the  privilege  of  voting  by  reason 
of  nonregistry,  and  is  not  unreasonable  as 
imposing  a  hardship  upon  the  voter.  Re 
Cusick's   Appeal,   136   Pa.   459,  20  Atl.  574, 

10:  228 

80.  The  word  "elector,"  as  used  in  Pa. 
Const,  art.  8,  §  7,  declaring  that  no  elector 
shall  be  deprived  of  the  privilege  of  voting 
by  reason  of  nonrcgistry,  means  a  duly  qual- 
ified elector;  and  until  an  unregistered  vot- 
er has  complied  with  the  law  he  is  not  even 
prima  facie  a  qualified  elector.  Id. 

81.  An  affidavit  of  a  nonregistered  voter 
which  fails  to  comply  with  Pa.  act  .Tan.  30, 
1874  (P.  L.  31),  in  that  it  does  not  state 
when  and  where  the  voter  was  born,  or  when 
and  where  the  tax  claimed  to  be  paid  by 
him  was  assessed,  and  where  and  to  whom 
paid,  but  merely  avers  generally  that  he  has 
resided  in  the  district  for  the  term  pre- 
scribed, without  stating  where  his  residence 
was  in  the  district, — is  so  defective  as  to 
warrant  the  excluding  or  rejecting  of  his 
vote.  Id. 

82.  The  affidavit  of  nonregistered  voter 
must,  under  Pa.  act  Jan.  30,  1874  (P.  L.  31), 
be  sufficiently  specific  to  show  upon  its  face, 
without  reference  to  any  other  fact  or 
circumstance,  that  the  voter  has  the  right 
to  vote,  and  also  to  found  thereon  an  indict- 
ment for  perjury  in  case  any  of  the  material 
allegations  therein  are  wilfully  false.        Id. 

83.  A  statute  requiring  unregistered  vot- 
ers to  state  in  their  affidavit  as  to  their 
qualifications  to  vote,  when  and  where  the 
tax  claimed  to  be  paid  by  the  affiant  was 
assessed,  and  when,  where,  and  to  whom 
paid,  is  not  unconstitutional  and  void  as 
being  unreasonable  and  imposing  a  hard- 
ship on  the  voter, — a  reasonable  certainty 
in  these  matters  being  all  that  is  required 
in  the  affidavit.  Id. 
Cumulative  voting. 

For  Editorial  Notes,  see  infra,  V.  §  3. 

84.  The  uniformity  of  the  rights  of  elec- 
tors is  violated  by  a  statute  which,  attempts 
to  permit  cumulative  voting  for  representa- 
tives in   districts  in   which   onlv   one   is  to 


be  elected  while  denying  it  in  others,  as  » 
nunority  of  voters  might  elect  a  candidate 
in  the  former  district  under  some  circum- 
stances, but  could  not  in  the  latter.  May- 
nard  v.  Board  of  District  Canvassers,  84 
Mich.  228,  47  N.  W.  756,  11:332 

85.  Cumulative  voting,  by  which  an  elec- 
tor entitled  to  vote  for  several  candidates 
for  the  same  office  may  cast  more  than  one 
vote  for  the  same  candidate,  distributing 
among  the  candidates  as  he  chooses  a  num- 
ber of  votes  equal  to  the  number  of  person* 
to  be  elected  is  in  violation  of  the  Michigan 
Constitution,  which  provides  for  representa- 
tive government  and  that  "all  votes  shall 
be  given  by  ballot,"  as  the  law  in  force  at 
the  adoption  of  the  Constitution  made  a 
ballot  illegal  if  it  included  more  than  one 
name  for  any  office,  while  other  laws  pun- 
ished an  elector  for  voting  more  than  for 
any  candidate.  Id. 
Irregularities. 

In  Notice  or  Proclamation,  see  supra,   69- 

71. 
In  Ballots,  see  infra,  151-163. 
As  Affecting  Canvass,  see  infra,  256. 

86.  Innocent  irregularities  of  election  offi- 
cers, which  are  free  of  fraud  and  have  not 
prevented  a  full  and  fair  expression  of  the 
popular  choice,  will  not  vitiate  the  result 
of  an  election,  unless  the  legislature  has  ex- 
pressly so  declared.  Bowers  v.  Smith,  111 
Mo.  45,  20  S.  W.  101,  16:  754 

87.  The  mere  failure  of  an  election  officer 
to  perform  some  prescribed  duty,  in  the  ab- 
sence of  any  fraud  or  imposition  practised 
upon  the  voter,  will  not  deprive  him  of  his 
ballot,  unless  the  language  of  the  statute 
allows  no  other  alternative.  Hope  v. 
Flentge,     140  Mo.  390,  41  S.  W.  1002. 

47:  806 

88.  Failure  of  election  officers  to  provide 
booths  which  comply  with  the  law  is  a 
mere  irregularity  which  will  not  render  void 
the  votes  cast  in  that  precinct.  Mover  v. 
Van  de  Vanter,  12  Wash.  377.  41  Pac.  60, 

29:  670 

89.  The  reception  by  election  judges  of 
votes  at  two  polling  places  in  a  precinct  on- 
ly about  75  feet  apart,  instead  of  at  one,  be- 
tween which  the  voting  is  divided  according 
to  the  alphabetical  arrangement  of  the  vot- 
ers' names,  does  not  invalidate  the  returns 
from  that  precinct.  Bowers  v.  Smith.  Ill 
Mo.  45,  20  S.  W.  101,  16:  754 

90.  A  duly  qualified  elector  will  not  lose 
his  vote  because  of  the  negligence  or  mis- 
prision of  an  election  officer;  and  when  an 
affidavit  as  to  his  qualifications  has  in  fact 
been  made  in  compliance  with  Pa.  act  Jan. 
30,  1874  (P.  L.  31),  and  the  informality  is 
the  result  of  the  ignorance  or  neglect  of 
the  oflicer  before  whom  it  was  taken,  such 
defect  may  be  cured  and  the  paper  re- 
formed upon  due  proof  of  what  occurred  at 
the  time.  Re  Cusick's  Appeal.  1.36  Pa.  459, 
20  Atl.  .574.  10:  228 

91.  An  election  is  not  valid,  although  con- 
ducted fairly  and  honestly,  if  the  statutory 
provisions  and  rules  are  not  substantially 
observed.  State  ex  rel.  Van  Amrinare  t. 
Tavlor.  108  X.  €.  196.  12  S.  F.  lOO.").  12:  201 


ELECTIONS,   II.  b,  1. 


low 


'J2.  The  opening  of  the  polls  an  henr  later 
than  the  time  prescribed  by  statute,  and 
the  removal  of  the  ballot  box  from  the  polls 
in  violation  of  Cal.  Pol.  Code,  §§  1160,  1162, 
invalidates  the  election  in  the  precinct,  al- 
though the  misconduct  is  prompted  merely 
by  ignorance  and  lack  of  appreciation  by 
the  election  officers  of  the  responsibility  of 
their  positions.  Tebbe  v.  Smith,  108  Cal. 
101,  41  Pac.  454,  29:  673 

93.  An  election  held  by  a  mere  usurper 
of  the  office  of  registrar,  who  had  fraudu- 
lently obtained  the  books  and  set  up  his 
claim  to  the  office  for  the  first  time  on  elec- 
tion day,  when  the  lawful  registrar  public- 
ly demanded  the  return  of  the  books,  is 
void.  State  ex  rel.  Van  Amrin^  v.  Taylor, 
108  N.  C.  196,  12  S.  E.  1005,  12:  202 

Officers  and  inspectors. 
Criminal  Registration,  see  supra,  52. 
Irregularities  by,  see  supra,  86-93. 
Enforcement   in   Equity   of  Right   to   Have 

Inspector  at  Polls,  see  Equity,  6. 
Mandamus  to  Control  Action  of,  see  Man- 
damus,  I.   f. 
Compelling   Permission   to   Take    Memoran- 
dum from  Records,  see  Mandamus,  117. 
Appointment  of,  see  Officers,  60. 
Removal  of,  see  Officers,  129,  130. 
Liability    for  Rejecting   Vote,    see    Officers, 

202. 
Special  Legislation  as  to,  see  Statutes,  401. 
See  also  supra,  50,  78;   infra,  107. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

'.)4.  A  faction  of  a  political  party  which  is 
not,  and  does  not  claim  to  be,  in  itself  a 
distinct  political  party,  is  not  entitled  to 
have  inspectors  at  an  election,  under  Ky. 
Stat.  S  1481.  Weaver  v.  Toney,  107  Ky. 
419,  54  S.  W.  732,  50:  105 

95.  No  citizen  other  than  the  proper  offi- 
cials has  a  right  to  inspect  and  take  memo- 
randa from  so  much  of  the  records  of  the 
electoral  board  as  relates  to  the  preparation 
and  printing  of  the  official  ballots,  certifi- 
cation of  the  same  and  their  distribution  to 
the  judges  of  election  of  the  several  pre- 
cincts. Cleaves  v.  Terry,  93  Va.  491,  25  S. 
E.  .5,52,  34:  144 

96.  So  much  of  the  records  of  the  electoral 
board  as  relates  to  the  appointment  and  re- 
moval of  judges  and  Commissioners  of  elec- 
tion and  registers  or  the  ordering  of  a  new 
registration  may  be  inspected  and  copied 
by  citizens.  Id. 

97.  To  hold  election  officers  personally 
liable  for  the  injuries  sustained  by  their 
refusal  to  consider  ballots  cast  in  favor  of 
a  candidate  for  office,  he  must  show  that  he 
was  legally  elected,  so  that  their  conduct 
deprived  him  of  the  office,  and  inflicted  the 
injurv  for  which  the  action  is  brought. 
Chamberlin  v.  Wood,  15  S.  D.  216,  88  N.  W. 
109,  56:  187 
New  election. 

Of  ifember  of  Legislature,  Power  of  Court 
to  Require,  see  Courts,  170. 

Mandamus  to  Compel  Calling  of,  see  Manda- 
mus, 119. 

98.  A  statute  providing  for  a  new  election 
within  ten  days  in  case  of  the  failure  of  an 
election  in  a  town  divided  into  voting  dis- 


tricts does  not  violate  the  Rhode  Island 
Constitution  providing  for  a  reopening  of 
the  polls  in  case  there  is  no  election,  as 
this  applies  only  to  towns  which  are  not  di- 
vided into  districts.  State  v.  South  Kings- 
town, 18  R.  L  258,  27  Atl.  599,  22:  65 

99.  The  requirement  of  a  new  election 
within  ten  days,  in  R.  I.  Pub.  Stat.  chap. 
710,  §  18,  in  case  of  the  failure  of  an  elec- 
tion, does  not  limit  the  power,  but  is  in- 
tended to  insure  its  timely  exercise,  and 
must  be  regarded,  not  as  mandatory,  but 
merely  directory,  where  the  time  named  has 
elapsed  without  an  election.  Id. 

b.  Ballots. 

1.  Preparation;    Official  Acts. 

Presumption  as  to  Contents  of  Ballots,  see 

Evidence,  615. 
Mandamus  as  to,  see  Mandamus,  120,  121. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

100.  The  legislature  has  power  to  define 
and  prescribe  what  shall  constitute  a  law- 
ful ballot.  Slavmaker  v.  Phillips,  5  Wyo. 
453,  40  Pac.  97i,  42  Pac.  1049,  47:  842 

101.  The  constitutional  right  of  voting  by 
ballot  is  not  impaired  by  a  statute  which 
requires  the  use  of  a  so-called  official  bal- 
lot which  the  voter  is  required  to  mark  and 
prepare  so  as  to  show  his  choice.  State  ex 
rel.  Runge  v.  Anderson,  100  Wis.  523,  76 
N.   W.    482,  42:  239 

102.  A  statute  req»iiring  the  use  of  an 
official  ballot  may  properly  be  deemed  nec- 
essary by  the  legislature  in  order  to  secure 
to  the  voters  a  full  and  fair  election  and  an 
accurate  and  honest  count,  and  does  not 
impair  the  constitutional  rights  of  the  vot- 
ers. Cole  V.  Tucker,  164  Mass.  486,  41  N. 
E.  681,  29:  668 

103.  A  statute  making  an  official  ballot 
compulsory  in  the  election  of  city  officers, 
but  optional  in  the  election  of  town  officers, 
is  not  void  as  partial  and  unequal  in  its 
operation  upon  the  rights  of  voters.         Id. 

104.  A  special  election  on  the  question  of 
aiding  a  corporation  to  build  a  bridge  over 
a  river  is  not  within  the  provisions  of  Iowa 
Acts  24th  Gen.  Assem.  chap.  33,  providing 
for  the  use  of  Australian  ballots  in  city 
elections.  Pritchard  v.  Magoun,  109  Iowa, 
364,   80  N.   W.  512,  46:  381 

105.  Courts  cannot  inquire  into  the  mo- 
tives which  underlie  the  formation  of  a 
political  party  in  determining  whether  or 
not  it  has  such  an  existence  as  to  be  en- 
titled to  issue  separate  election  ballots 
bearing  its  name.  Fields  v,  Osborne,  60 
Conn.  544,  21  Atl.  1070,  12:  551 

106.  The  fact  that  the  real  object  of  a 
caucus  failed  of  accomplishment  is  not  suffi- 
cient to  show  that  no  political  party  was 
formed  which  would  be  entitled  to  issue 
election  ballots  bearing  its  name.  Id. 

107.  The  duty  of  the  secretary  of  state, 
under  the  Michigan  election  law  of  1889, 
ends  with  the  printing  of  tickets  and  de- 
livery of  them  to  the  proper  committees  of 
the  different  political  parties;    he  is  not  r©- 


noo 


ELECTIONS,  II.  b.  1. 


quired  to  deliver  any  to  the  inspectors  of 
election.  Detroit  v.  Rush,  82  Mich.  532,  46 
N.  W.  051,  10:  171 

Form  and  contents  generally. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

108.  A  voter's  rights  are  not  abridged  or 
restricted  by  the  requirements  of  a  law 
which  provides  that  all  ballots  shall  be  of 
uniform  color  and  size.  Detroit  v.  Rush,  82 
Mich.  5.32,  46  N.  W.  951,  .   10:  171 

109.  The  fact  that  a  voter  may  be  com- 
pelled, in  exercising  his  right  to  vote,  to 
deposit  a  ballot  having  upon  it  the  name  or 
style  of  a  party  of  whose  principles  he  dis- 
approves, is  not  an  illegal  deprivation  of  a 
right  to  vote;  for  if  a  voter  exercises  his 
right  to  erase  the  names  of  all  the  candi- 
dates on  the  ticket,  and  inserts  the  names 
of  persons  who  stand  for  an  entirely  differ- 
ent principle,  the  heading  of  the  ticket  be- 
comes meaningless  as  an  expression  of  the 
voter's  sentiments.  State,  Ransom,  Pros- 
ecutor. V.  Black  (N.  J.  Sup.)  54  N.  J.  L.  446, 
24  Atl.  489,  16:  769 

110.  The  provision  of  the  Rhode  Island 
ballot  act  (Pub.  Laws,  chap.  731,  §  6),  which 
requires  ballots  to  contain  the  names,  etc., 
of  all  candidates  in  nomination  for  any  of- 
fices specified  in  the  ballot,  is  not  in  con- 
flict with  the  constitutional  requirements 
that  ballots  for  general  officers  shall  be  re- 
turned to  the  secretary  of  state  for  safe 
keeping,  while  ballots  for  other  oflBcers 
must  be  returned  to  other  persons,  since 
the  names  of  candidates  for  general  offices 
may  be  printed  on  ballots  distinct  from 
those  of  local  officers,  or,  if  printed  on  the 
same  ballot,  it  may  be  separated  into  two 
pieces,  and  each  part  returned  to  the  re- 
quired custodians.  Re  Ballot  Act,  16  R.  I. 
766.  19  Atl.  656,  6:  773 

111.  Ballots  with  a  device  upon  them 
must  be  rejected  in  a  municipal  election  un- 
der X.  C.  Code,  §  3789,  which  requires  it  to 
be  conducted  in  like  manner  as  one  for  mem- 
bers of  assembly,  in  which,  by  §  2689,  such 
ballot"  are  void.  State  ex  rel.  Baxter  v. 
Ellis.  Ill  N.  C.  124.  15  S.  E.  938.       17:  382 

112.  Ballots  are  not  so  marked  as  to  be 
illegal  under  a  statute  prohibiting  any  "or- 
naments, designation,  mutilation,  symbol, 
or  mark  of  any  kind  whatsoever."  except 
the  names  of  the  candidates  and  of  the  of- 
fices to  be  filled,  by  the  fact  that  on  the 
face  of  the  tickets,  between  the  words 
"For  Electors  of  President  and  Vice-Presi- 
dent," at  the  head  of  the  ticket,  and  the 
names  of  the  electors,  are  printed  the 
word"  "National  Republican  Ticket."  or  on 
the  face  of  other  tickets,  at  about  the  mid- 
dle, between  the  names  of  certain  candi- 
datc?:,  are  the  words  "Free  Suffrage  Ticket." 
State  ex  rel.  Law  v.  Saxon,  30  Fla.  668.  12 
So.  218,  18:  721 

ll.'?.  The  name  of  the  political  party  suffi- 
ciently appears  at  the  head  of  a  ballot, 
where  it  is  combined  in  a  vignette,  without 
repeating  the  name  in  a  separate  heading. 
Shields  v.  Jacob,  88  :Mich.  104.  50  N.  W. 
105.  13:  760 

111.  If  a  political  party  chooses  to  nom- 
inate only   a    count}'   ticket,  it    can   prepare 


its  vignette  or  heading  and  tickets  and  de- 
posit one  with  the  county  clerk  as  provided 
by  Mich,  act  1889,  §  10,  procure  their  print- 
ing by  the  secretary  of  state,  and  deposit 
the  ballots  with  the  inspectors;  and  such 
tickets  may  be  voted  the  same  as  though 
they  also  contained  the  names  of  state 
officers.  Detroit  v.  Rush,  82  Mich.  532,  46 
N.  W.  051,  10:  171 

Description  of  office. 

115.  Ballots  cast  at  a  town  meeting, 
which  include  the  name  of  a  candidate  for 
judge  of  probate,  who  can  be  legally  elected 
only  at  a  state  election,  or  which  have  the 
words  "and  ex  officio  registrar  of  births, 
marriages,  and  deaths,"  added  to  the  name 
of  the  office  of  town  clerk,  are  invalid  un- 
der Conn.  Pub.  Acts  1889,  chap.  247,  §  1, 
which  provides  that  ballots  shall  contain, 
in  addition  to  the  official  indorsement,  only 
the  "names  of  the  candidates,  the  office 
voted  for,  and  the  name  of  the  political 
party."  Fields  v.  O.sborne,  60  Conn.  544,  21 
Atl.  1070,  12:  551 

116.  The  use  of  the  word  "for,"  before  the 
name  of  each  office  named  in  a  ballot,  does 
not  invalidate  the  ballot,  under  Conn.  Pub. 
Acts  1889,  chap.  247,  §  1,  prohibiting  any 
words  thereon  except  the  official  indorse- 
ment, the  names  of  candidates,  the  office 
voted  for,  and  the  name  of  the  political 
party.  Id. 
State  ex  rel.  Phelan  v.  Walsh,  62  Conn.  260, 
25  Atl.  1,                                                       17:  364 

117.  A  ballot  for  school  directors  at  an 
election  to  choose  one  for  a  full  term  of 
three  years,  and  one  to  fill  a  vacancy  for 
one  year,  cannot  be  counted  when  it  con- 
tains the  names  of  two  persons  without 
anything  to  designate  which  office  either  is 
intended  for.  Page  v.  Kuykendall,  161  111. 
319.   43   N.  E.   1114,  32:  656 

118.  A  ballot  containing  two  names,  with 
the  words  "long  term"  after  one  of  them, 
cast  at  an  election  which  is  held  only  for 
the  election  of  school  directors,  one  for  a 
long  term  and  one  to  fill  a  vacancy,  can  be 
counted  at  least  for  the  person  named  for 
the  long  term,  although  there  is  a  failure 
to  designate  by  express  words  the  office  for 
which  the  other  person  was  named.         Id. 

119.  The  designation  of  the  office  to  be 
filled,  which  a  ballot  must  show  under  1 
Starr  &  C.  (111.)  Stat.  p.  1008,  §§  52,  53, 
sufficiently  appears,  at  least  as  to  the  per- 
son named  for  the  long  term — upon  a  bal- 
lot containing  the  names  of  two  persons, 
with  the  words  "long  term"  following  one 
name,  without  any  other  words  to  designate 
the  office,  when  the  election  is  held  only 
for  school  directors,  one  to  be  chosen  for  a 
long  term  and  one  for  a  vacancy.  Id. 
Restricting  vote  to  names  on  official  ballot. 
Partial    Invaliditv    of  Statute    as    to.    see 

Statutes,  112." 
Construction  of  Statute  as  to,  see  Statutes, 
491. 

120.  The  lack  of  any  nomination  does  not 
prevent  voting  for  a  person,  under  a  pro- 
vision that  "the  voter  may  write  or  paste 
upon  liis  ballot  the  name  of  any  person  for 
wlioTn    he    desires    to    vote    for    anv    office." 


ELECTIONS,  II.  b,  1. 


1101 


People  ex  rel.  Bradlev  v.  Shaw,   133  X.   Y. 
493,  31  N.  E.  512,       '  16:  606 

121.  The  "Australian  ballot  law"  (Mo. 
Rev.  Stat.  1889,  chap.  60,  art.  3)  does  not 
limit  the  range  of  choice  of  voters  in  Mis- 
souri to  the  persons  nominated  in  the  modes 
prescribed  by  it.  Bowers  v.  Smith,  111  Mo. 
45,  20  S.  W.   101,  16:  754 

122.  It  is  competent  for  the  legislature  to 
prescribe  an  official  ballot  and  prohibit  the 
use  of  any  other;  and  it  may  also  provide 
for  printing  the  names  of  candidates  regu- 
larly nominated  by  a  convention  or  mass 
meeting,  or  who  run  as  independents;  but 
it  cannot  restrict  the  elector  to  voting  for 
some  one  of  the  candidates  whose  names  are 
printed  upon  the  official  ballot.  The  Con- 
stitution guarantees  to  him  flie  right  to 
vote  for  whom  he  pleases.  State  ex  rel. 
Lamar  v.  Dillon,  32   Fla.  545,   14  So.   383, 

22:  124 

123.  Electors  may  by  statute  be  limitetl 
to  voting  for  the  candidates  whose  names 
appear  on  the  official  ballot,  unless  the  right 
to  vote  for  others  is  secured  by  the  Con- 
stitution. Cliamberlin  v.  Wood,  15  S.  D. 
216.  88  X.  W.  109,  56:  187 

124.  The  power  of  the  legislature  to  re- 
quire the  names  of  all  candidates  for  office 
to  be  printed  on  the  official  ballot,  thereby 
in  efTect  denying  to  electors  the  right  of 
writing  the  name  of  any  candidate  thereon, 
is  not  destroyed  by  constitutional  provi- 
sions that  elections  shall  be  free  and  equal, 
and  prescribing  the  qualifications  of  elec- 
tors. Id 
Persons   and   parties   entitled   to   place   on 

ballot. 

Person.=i  Xominated  bv  Political  Committee, 
see  infra,  306,  307. 

Person's  Nominated  bv  Petition,  see  infra, 
304. 

Persons  Xominated  bv  Convention,  see  in- 
fra, 302,   303. 

Discrimination  between  Nominees  of  Dif- 
ferent  Parties,   see  infra,   171. 

See   also  infra,   149. 

125.  That  the  law  does  not  require  the 
official  ballots  to  be  printed  and  in  posses- 
sion of  the  proper  officer  until  ten  days  be- 
fore election  does  not,  prior  to  that  time, 
deprive  the  court  of  jurisdiction  of  a  con- 
troversy to  settle  the  names  which  shall  be 
placed  upon  the  ballot.  State  ex  rel.  How- 
ells  V.  Jletcalf,  18  S.  D.  393,  100  N.  W.  923, 

67:  331 

126.  A  political  party  the  name  of  which 
can  be  placed  on  ballots,  under  the  Connecti- 
cut election  law,  is  formed  where  a  Repub- 
lican caucus  votes  to  adjourn  for  the  organi- 
zation of  a  citizens'  caucus,  and  thereupon 
some  democrats  unite  with  the  Republicans 
present  and  nominate  a  citizens*  ticket 
which  is  voted  at  a  town  meeting,  although 
no  committees  are  appointed  or  any  steps 
taken  to  effect  a  permanent  organization. 
Fields  V.  Osborne,  60  Conn.  544,  21  Atl. 
1070.  12:  551 

127.  Clauses  which  provide  tnat  only 
those  parties  casting  a  certain  percentage 
of  the  vote  at  the  last  election,  and  those 
parties    presenting    petitions    signed    by    a 


certain  number  of  voters,  shall  be  entitled  to 
official  ballots,  is  a  valid  regulation  to  re- 
strain the  number  of  ballots  to  be  printed 
and  distributed  within  reasonable  limits. 
State,  Ransom,  Prosecutor,  v.  Black  (X.  J. 
Sup.)   54  N.  J.  L.  446,  24  Atl.  489  16:  769 

128.  A  statute  requiring  official  ballots, 
which  can  contain  the  names  of  the  candi- 
dates of  a  political  party  only  where  the 
vote  of  that  party  at  the  last  election  was 
at  least  3  per  cent  of  the  entire  vote  cast, 
but  which  allows  any  voter  to  insert  the 
names  of  any  candidates  that  he  chooses, 
does  not  deny  any  voter  the  exercise  of 
the  elective  franchise,  or  deny  to  citizens 
of  that  party  their  constitutional  right  to 
equality  and  immunity  in  voting.  De  Walt 
V.  Bartlev,  146  Pa.  529,  24  Atl.  185, 

15:771 

129.  The  requirement  that  a  political  par- 
ty must  have  polled  at  least  1  per  cent  of 
the  entire  vote  cast  in  the  state  at  the 
last  general  election,  in  order  to  be  enti- 
tled to  have  nominations  certified  by  it 
appear  on  the  blanket  ballot,  is  not  a  viola- 
tion of  Ohio  Const,  art.  5,  §  1,  giving  a 
qualified  elector  the  right  to  vote  at  all 
elections.  State  ex  rel.  Plimmer  v.  Poston, 
58  Ohio  St.  620,  51  N.  E.   150,  42:237 

130.  A  statute  permitting  the  name  of  a 
candidate  to  appear  but  once  on  an  official 
ballot,  and  also  providing  that  no  party 
shall  be  entitled  to  a  place  on  such  a  ballot 
unless  it  cast  at  least  2  per  cent  of  the 
vote  at  the  preceding  election,  is  not  un- 
constitutional on  the  ground  that  a  party 
cannot  nominate  the  same  list  of  candidates 
that  another  party  has  nominated  without 
losing  its  right  of  representation  upon  the 
official  ballot  at  the  next  election.  State 
ex  rel.  Runge  v.  Anderson,  100  Wis.  523, 
76X.  W.  482.  42:239 

131.  An  organized  political  party  cannot 
have  at  the  same  time  on  the  official  bal- 
lot more  than  one  candidate  for  the  same 
countv  office.  State  ex  rel.  Howells  v.  Met- 
calf,  is  S.  D.  393,  100  N.  W.  923,     67:  331 

132.  Provisions  of  a  state  law  as  to  the 
conditions  for  the  nominations  of  candidates 
for  office  before  the  day  of  election  are 
mandatory  and  must  be  strictly  complied 
with ;  and  the  name  of  one  who  was  not 
nominated  in  the  manner  fixed  by  the  stat- 
ute should  not  be  published  or  printed  on 
the  official  ballot.  Price  v.  Lush,  10  Mont. 
61,  24  Pac.  749,  9:  467 

133.  The  fact  that  the  name  of  one  who 
was  elected  to  an  office  was  published  and 
printed  on  the  ballots,  although  he  was  not 
nominated  in  any  legal  manner,  and  the  no- 
tification of  his  nomination  was  not  filed 
within  the  period  named  in  the  statute, 
avoids  his  election  under  the  Australian  bal- 
lot system,  notwithstanding  a  statutory 
provision  allowing  voters  to  write  or  paste 
on  ballots  the  name  of  any  person  for  whom 
they  desire  to  vote.  Id. 

134.  Prohibiting  the  placing  on  an  official 
ballot  of  the  name  of  an  unsuccessful  con- 
testant for  a  party  nomination  at  the  pri- 
mary election  is  a  reasonable  regulation, 
and  does  not  violate  Minn.  Const,  art.  7,  §  7, 


1102 


ELECTIONS,   U.  b,  1. 


providing  that  any  person  entitled  to  vote 
at  any  election  shall  be  eligible  to  any  elec- 
tive office,  since  the  blank  space  provided 
for  by  law  in  the  official  ballot,  where  the 
voters  may  write  the  name  of  any  quali- 
fied citizen  if  they  wish  to  vote  for  him, 
protects  his  eligibility  and  enables  him  to 
be  elected  if  he  receives  the  requisite  votes. 
State  ex  rel.  McCarthy  v.  Moore,  87  Minn. 
308,   92  N.  W.   4,  59:  447 

135.  The  names  of  candidates  nominated 
by  a  convention  erroneously  claiming  to 
represent  a  political  party,  in  opposition  to 
the  regular  convention  of  that  party,  should 
be  excluded  from  the  official  ballot.  State 
ex  rel.  Howells  v.  Metcalf,  18  S.  D.  393, 
100  N.  W.  923,  67:331 

136.  Both  tickets  nominated  and  certified 
by  rival  factions  of  a  regularly  called  con- 
vention are  entitled  to  a  place  on  the  official 
ballot  in  adjoining  columns  under  the  party 
name  and  vignette,  although  one  may  be  at 
the  disadvantage  of  being  in  a  column  by 
itself,  while  the  other  is  with  the  general 
ticket  of  the  party.  Stephenson  v.  Boards 
of  Election  Oomrs.  118  Mich.  396,  76  K  W. 
914,  42:  214 

137.  The  protest  of  a  nonresident  candi- 
date for  Vice  President  against  printing  his 
name  on  a  ticket  of  presidential  electors 
named  by  a  state  convention,  without  at- 
tempting to  decline  the  national  nomination 
or  even  withdrawing  as  a  candidate  in  that 
state,  is  not  a  withdrawal  "from  nomina- 
tion" within  the  meaning  of  Kan.  Sess. 
Laws  1893,  chap.  78,  §  8,  and  does  not  pre- 
clude the  use  of  his  name  on  such  ballot. 
Broidenthal  v.  Edwards,  .57  Kan.  332,  46  Pac. 
469,  34:  146 
Placing  and  grouping  tickets  or  names. 
Retrospective    Statute   as   to,   see   Statutes, 

551. 
See  also  supra,  130. 

138.  The  claim  of  a  candidate  for  office 
to  have  his  name  printed,  in  the  regular 
party  column  where  all  the  candidates  in  the 
column  can  be  voted  for  at  once  by  a  mark 
at  the  head  of  the  column,  presents  a  ques- 
tion of  substantial  right.  State  ex  rel. 
Howells  V.  Metcalf,  18  S.  D.  393,  100  N. 
W.  923,  67:  331 

139.  The  name  of  a  person  as  candidate 
for  an  elector  of  President  and  Vice  Presi- 
dent cannot  appear  in  more  than  one  place 
upon  the  official  ballot,  under  Wyo.  Laws 
1890,  chap.  80,  §  104,  which  provides  for  no 
party  headings  or  columns  set  apart  for 
separate  parties,  but  requires  the  ballot  to 
name  the  party  or  principle  represented  by 
a  candidate  in  connection  with  his  name. 
State  ex  rel.  Blvdenburgh  v.  Burdick,  6 
Wyo.  448,  46  Pac.   8.54,  34:  845 

140.  A  candidate  can  have  his  name  ap- 
pear but  once  on  an  official  ballot,  under 
Wis.  Rev.  Stat.  1898,  §  38,  providing  that 
ea^h  party  ticket  shall  be  printed  in  one 
column,  but  adding  that  a  person  nominated 
by  more  than  one  part}'  or  convention  for 
the  same  oflfice  shall  have  his  name  placed 
under  the   designation   of  the   party   which 


first  nominated  him.     State  ex  rel.  Runge 
V.  Anderson,  100  Wis.  523,  76  N.  W.  482, 

42:  239 

141.  The  fact  that  all  the  candidates  of 
one  party  are  also  the  nominees  of  another 
does  not  prevent  the  application  of  Wis. 
Rev.  Stat.  1898,_  §  38,  which  requires  the 
name  of  a  candidate  who  is  nominated  by 
more  than  one  party  to  appear  under  the 
designation  of  the  party  which  first  nomi- 
nated him.  Id. 

142.  A  candidate  nominated  independent- 
ly by  the  requisite  number  of  voters,  under 
Md.  Code  Gen.  Laws,  §  131,  who  has  also 
been  nominated  by  a  party  convention,  is 
entitled  by  implication  to  another  place  on 
the  official  ballot,  in  addition  to  that  in  the 
group  of  candidates  of  the  political  party 
which  has  nominated  him  in  convention. 
Fisher  v.  Dudlev,  74  Md.  242,  22  Atl.  2, 

12:  586 

143.  A  statute  prohibiting  the  name  of 
any  candidate  for  office  from  being  placed 
on  the  official  ballot  more  than  once  is  with- 
in legislative  discretion,  and  does  not  vio- 
late the  constitutional  rights  of  electors. 
State  ex  rel.  Bateman  v.  Bode,  55  Ohio  St. 
224,  46  N.  E.  195,  34:  498 

144.  An  act  which  prohibits  the  printing 
of  the  name  of  a  candidate  for  office  in 
more  than  one  column  of  the  official  ballot 
is,  as  to  a  candidate  who  is  the  nominee  of 
a  single  political  party  and  the  nominee  of 
electors  by  petition,  a  reasonable  regulation 
of  the  manner  of  exercising  the  right  of 
suffrage,  and  is  valid  and  constitutional. 
State  ex  rel.  Fisk  v.  Porter  (N.  D.)  100  N. 
W.  1080,  67:  473 

145.  A  ballot  law  which  permits  the  name 
of  a  candidate  to  appear  on  the  offidal  bal- 
lot h«t  ©nee,  ak-bough  he  may  be  nominated 
by  di.Terent  parties,  is  not  unconstitutional 
although  some  voters  may  be  unable  to  vote, 
as  voters  of  other  parties  can,  for  all  the 
candidates  of  their  party  without  marking 
the  ballot  more  than  once,  or  to  have  all 
the  candidates  of  their  party  appear  on  the 
party  ballot.  Todd  v.  Election  Comrs.  104 
Mich.  474,  62  N.  W.  564,  64  N.  W.  496, 

29:  330 

146.  A  statute  forbidding  the  printing  of 
the  name  of  a  candidate  for  office  in  more 
than  one  column,  and,  in  case  of  nomination 
of  the  same  person  by  more  than  one  party, 
forcing  him  to  choose  on  which  ticket  his 
name  shall  be  printed,  and  directing  that, 
on  failure  to  make  such  choice,  it  shall  b«^ 
printed  on  the  ticket  first  filed,  with  th<v 
words  ""No  nomination"  on  the  others,  is  an 
unconstitutional  interference  with  the  rights 
of  political  parties  and  candidates.  Mur- 
phy V.  Curry,  137  Cal.  479,  70  Pac.  461, 

59:  97 

147.  The  name  of  a  candidate  nominated 
by  certificate  of  electors  in  place  of  a  per- 
son previously  nominated  in  the  same  way 
but  who  has  declined  should  be  given  the 
same  place  upon  the  ballot  that  the  prior 
nominee  would  have  boon  entitled  to.  Stat© 
ox  rel.  Blvdenburgh  v.  Burdick.  6  Wvo.  448, 
46  Pac.  8.54,  '34:  845 


ELECTIONS,  U.  b,  1. 


1108 


148.  The  grouping  of  candidates  for  presi- 
dential electors  is  to  be  made  by  the  county 
clerk,  and  not  by  the  secretary  of  state,  un- 
der Wyo.  Laws  1890,  chap.  80,  §  104,  provid- 
ing that  the  names  of  such  electors  present- 
ed in  one  certificate  shall  be  arranged  in  a 
separate  group,  but  the  secretary  must  so 
certify  the  names  and  description  of  th« 
candidates  as  to  convey  to  the  clerk  all 
knowledge  requisite  to  such  grouping.     Id. 

149.  The  method  of  determining  the  larg- 
est number  of  votes  polled  at  the  last  pre- 
ceding general  election  by  a  political  party, 
in  order  to  determine  its  place  on  the  official 
ballot,  which  is  provided  by  Minn.  Gen. 
Stat.  1894,  §  30,  requiring  the,  average  vote 
for  candidates  not  indorsed  by  any  other 
party  to  be  taken,  does  not  apply  where  all 
the  candidates  of  a  party  were  nominated 
also  by  another  party,  but  in  such  case 
the  officer  charged  with  the  duty  of  arrang- 
ing and  printing  the  official  ballot  may  re- 
sort to  any  rule  or  method  which  he  deems 
to  be  fair  and  practicable, — as,  for  example, 
to  take  the  vote  at  the  general  election  next 
preceding  the  nomination  of  the  duplicate 
ticket,  and  his  decision  will  not  be  dis- 
turbed unless  he  acts  fraudulently  or  un- 
fairly or  upon  a  basis  that  is  clearly  im- 
proper and  prejudicial.  Higgins  v.  Berg, 
74  Minn.  IL  76  N.  W.  788,  42:  245 
Stamping;    indorsements. 

See  also  infra,  209-211. 

For  Editorial  Notes,  see  infra,  V.  §  8. 

1.50.  It  is  not  an  unreasonable  and  uncon- 
stitutional restriction  of  the  right  of  suf- 
frage to  require  an  indorsement  by  the  of- 
ficial stamp  and  of  the  name  of  initials  of 
the  judge  of  election  on  the  outside  of  an 
official  ballot.  Slavmaker  v.  Phillips,  5 
Wyo.  453,  40  Pac.  971,  42  Pac.  1049.  47:  842 

151.  A  constitutional  provision  fixing  the 
qualification  of  voters  is  not  violated  by  a 
statute  making  void  ballots  not  properly  in- 
dorsed by  the  election  officers.  Id. 

152.  A  law  forbidding  the  counting  of  bal- 
lots upon  which  the  election  officers  have 
not  placed  their  initials  cannot  be  sustained 
where  the  Constitution  provides  that  per- 
sons possessing  certain  qualifications  "shall 
be  entitled  to  vote  at  all  elections."  Moyer 
v.  Van  de  Vanter,  12  Wash.  377,  41  Pac. 
60,  29:  670 

153.  The  absence  of  the  official  stamp  or 
of  the  judge's  name  or  initials  on  the  ex- 
terior of  the  ballot  when  so  folded  as  to 
conceal  its  face  will  cause  its  rejection  under 
Wyo.  Sess.  Laws  1890,  chap.  80,  §  130, 
providing  that  a  "ballot  which  is  not  in- 
dorsed by  the  official  stamp  or  has  not  the 
name  or  initials  of  the  judge  of  election 
.  .  .  shall  be  void  and  shall  not  be  count- 
ed." Slaymaker  v.  Phillips,  5  Wyo.  453,  40 
Vac.   971,  42   Pac   1049,  "       47:842 

154.  Ballots  will  not  be  vitiated,  in  the 
absence  of  fraud,  by  the  fact  that  the  official 
stamp  required  by  statute  to  be  placed  on 
them  was  not  so  placed  until  they  were  re- 
turned by  the  electors  to  be  placed  in  the 
box,  ha\nng  gone  into  the  possession  of  the 


electors  unstamped.    Moyer  v.  Van  de  Van- 
ter, 12  Wash.  377,  41  Pac.  60,  29:  670 

155.  That  the  initials  of  the  poll  clerks 
are  indorsed  upon  the  lower  right-hand  cor- 
ner of  the  back  of  oallots,  instead  of  on  the 
lower  left-hand  corner,  as  prescribed  by 
statute,  will  not  render  the  ballots  void, 
where  they  are  all  indorsed  the  same  way, 
and  the  error  was  an  innocent,  honest  mis- 
take of  the  officers.  Parvin  v.  Wimberg, 
130  Ind.  561,  30  N.  E.  790,  15:  775 
Irregularities. 

In  Stamping  or  Indorsing  Ballot,  see  supra, 

151-155. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

156.  Using  ballots  sent  to  wrong  towns 
with  the  names  of  candidates  thereon  who 
were  ineligible  by  reason  of  nonresidence 
does  not  necessarily  make  them  invalid. 
State  ex  rel.  Phelan  v.  Walsh,  62  Conn.  260. 
25  Atl.  1,  17:  364 

157.  Irregularities  in  official  ballots — such 
as  the  printing  of  the  names  of  certain  can- 
didates with  those  of  a  different  party,  un- 
der a  party  device  which  belongs  only  to  the 
latter — will  not  justify  the  rejection  of  the 
votes  cast  for  any  of  such  candidates,  where 
ample  opportunity  is  offered  under  the  stat- 
utes for  correction  of  mistakes  in  the  bal- 
lots before  election,  but  no  objection  was 
made  before  the  votes  were  cast.  Allen  v. 
Glynn,  17  Colo.  338,  29  Pac.  670,         15:  743 

158.  Where  a  candidate  for  office  makes 
no  timely  objection  to  the  ballot  as  pub- 
lished by  the  eosntv  clerk  before  an  elec- 
tion (Mo.  Rev.  Stat.'  1889,  §  4778).  the  for- 
mer cannot  afterwards  object  to  the  result 
for  any  error  of  the  clerk  in  admitting 
names  upon  the  official  ballot  not  properly 
entitled  to  be  there.  Bowers  v.  Smith,  111 
Mo.  45,  20  S.  W.   101,'  16:  754 

159.  Using  a  small  letter  for  the  first  "e" 
of  the  word  "De  Forrest,"  in  the  name  of 
a  candidate  which  is  otherwise  printed  in 
capitals,  does  not  violate  a  provision  re- 
quiring the  use  of  type  of  uniform  size. 
State  ex  rel.  Phelan  v.  Walsh.  62  Conn.  260. 
25  Atl.  1,  17:  364 

160.  The  ballots  cast  at  a  precinct  will  be 
excluded  from  the  count  where  all  of  them 
bear  in  the  same  writing  the  name  of  a  per- 
son followed  by  the  name  of  a  party,  and 
there  was  but  one  person  in  the  precinct 
lawfully  assisted  in  the  marking  of  his 
ballot  as  provided  by  Cal.  Pol.  Code.  §  1208, 
where  it  does  not  appear  who  did  the  writ- 
ing or  whether  it  was  upon  the  tickets 
when  they  were  put  into  the  voters'  hands, 
under  §  1211,  providing  that  any  ballot 
which  is  not  made  as  provided  in  the  act 
shall  be  void  and  shall  not  be  counted. 
Tebbe  v.  Smith,   108  Cal.  101,  41   Pac.  454. 

29:  673 
101.  The  use,  by  mistake,  of  small  ballots 
printed  on  colored  paper,  furnished  to  local 
officers  in  a  separate  package,  instead  of  us- 
ing the  regular  ballots  printed  on  white  pa- 
per, will  not  prevent  the  counting  of  the 
ballots  cast,  where  the  election  was  other- 
wise regular  and  all  the  voters  of  the  town- 
ship in  which  the  mistake  was  made,  with- 
out  distinction   of   party,  used   the   colored 


1104 


ELECTIONS,  II.  b,  2. 


ballots.    Bovd  v.  Mills,  53  Kan.  594,  37  Pac. 
16,  '  25:  48C 

162.  Ballots  issued  by  one  political  party, 
and  which  do  not  contain  the  name  of  that 
party,  but  contain  the  word  "citizens,"  in 
lieu  thereof,  do  not  conform  to  Conn.  Acts 
1889,  chap.  247,  §  1,  p.  155,  prescribing  what 
ballots  used  at  election  shall  contain,  and 
how  they  shall  be  printed;  and  such  bal- 
lots should  not  be  counted.  Talcott  v.  Phil- 
brick,  59  Conn.  472,  20  Atl.  436,         10:  150 

163.  Ballots  from  which  the  inspectors 
have  unintentionally  omitted  to  take  slips 
containing  the  numbers,  as  required  by  Neb. 
Stat.  1891,  chap.  40,  §  24,  will  not  be  re- 
jected under  the  provision  of  §  26,  that  any 
ballot  upon  which  appear  "names,  words,  or 
marks,  written  or  printed,"  except  as  pro- 
vided in  the  act.  shall  not  be  counted. 
Buckner  v.  Lynip,  22  Nev.  426,  41  Pac.  762, 

30:  354 

2.  Casting;    Acts  of  Voter. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

164.  The  anticipation  of  fraud  on  the  part 
of  the  judges  of  an  election  will  not  justify 
the  compelling  of  voters  to  exhibit  the  con- 
tents of  their  ballots  to  bystanders,  al- 
though it  is  done  for  the  purpose  of  serving 
as  a  check  upon  such  fraud.  Jones  v.  Glide 
well,  53  Ark.   161,   13  S.  W.  723,         7:  831 

165.  Deputy  United  States  marshals  have 
no  right  to  mark  ballots,  or  to  see  them 
marked,  or  to  know  for  whom  the  electors 
are  voting  at  a  congressional  election  in  a 
city  having  a  secret  ballot.  Ellis  ex  rel. 
Reynolds  v.  May,  99  Mich.  538,  58  N.  W. 
483.  25 i  325 
Marking  choice. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

166.  An  act  requiring  a  voter  to  place  a 
mark  opposite  the  name  of  each  candidate 
voted  for  by  him  does  not  conflict  with 
Tenn.  Const,  art  4,  §  1,  as  imposing  the 
requirement  of  education  on  the  part  of 
the  voter  in  addition  to  the  constitutional 
requirements.  Cook  v.  State,  90  Tenn.  407. 
16  S.  W.  471,  13:  183 

167.  An  honest  attempt  to  follow  the  di- 
rections of  the  law  requiring  a  cross  to  be 
made  in  the  appropriate  margin  or  place 
opposite  the  name  on  the  ballot  must  appear 
in  order  to  permit  the  ballot  to  be  counted. 
Parker  v.  Orr,   158  111.  609,  41  N.  E.   1002. 

30:  227 

168.  The  rule  that  a  voter  should  not  be 
disfranchised  or  deprived  of  his  right  to 
vote  through  mere  inadvertence,  mistake,  or 
ignorance,  if  an  honest  intention  can  be 
ascertained  from  his  ballot,  is  not  changed 
by  the  Illinois  ballot  law  of  1891  which  ex- 
pressly provides,  in  §  26,  that  his  ballot 
shall  not  be  counted  if  he  "marks  more 
names  than  there  are  persons  to  be  elected 
to  an  office  or  if,  for  any  reason,  it  is  im- 
possible to  determine  the  voter's  choice 
for  any  office  to  be  filled."  Id. 

169.  The  fact  that  a  ballot  is  marked  by 
a  cross  in  a  circle  at  the  head  of  each  of  two 
tickets  will  not  prevent  counting  the  vote 


'  for  a  candidate  named  on  one  ticket  for  an 
office  for  which  no  candidate  is  named  on 
the  other,  although  it  prevents  counting  the 
ballot  for  a  candidate  for  any  office  for 
which  both  tickets  present  a  candidate.  Id. 

170.  More  than  one  cross  at  the  head  of 
party  tickets  on  the  same  ballot  will  annul 
it,  although  one  of  the  parties  had  no  can- 
didates for  offices  named  on  the  ticket.  Mc- 
Mahon  v.  Polk,  10  S.  D.  296,  73  N.  W.  77, 

47:  830 

171.  A  provision  of  a  ballot  law  allowing 
names  of  political  parities  who  have  filed 
certificates  of  nominations  to  be  printed  at 
the  head  of  the  official  ballots,  and  that  all 
the  candidates  of  a  party  may  be  voted  for 
by  a  mark  opposite  its  namel!  but  that  the 
ballot  shall  not  be  counted  if  stamped  in 
any  other  place,  is  unconstitutional,  and 
void  as  discriminating  against  classes  of  vo- 
ters by  subjecting  them  to  partial  disfran- 
chisement or  to  more  burdensome  condi- 
tions than  others  in  casting  their  votes, 
where  some  of  the  parties  might  be  unable 
under  the  law  to  nominate  both  local  and 
state  candidates,  and  the  marking  of  the 
party  name  in  such  a  case  would  limit  the 
vote  to  the  partial  list  of  officers  which  the 
party  had  nominated.  Eaton  v.  Brown,  96 
Cal.  371,  31  Pac.  250,  17:697 

172.  The  requirement  that  a  ballot  be 
marked  by  a  cross  "in  the  appropriate  mar- 
gin or  place  opposite  the  name,"  made  bv  the 
Illinois  ballot  law.  §  23  (3  Starr  &  C.  chap. 
46,  p.  570),  is  directory,  and  not  mandatory, 
and  imder  it  the  voter's  intention  should  be 
given  effect  if  it  can  be  gathered  from  his 
ballot  without  laying  down  a  rule  which 
may  lead  to  a  destruction  of  its  secrecy. 
Parker  v.  Orr.  158  111.  609,  41   N.  E.   1002, 

30:  227 

173.  A  cross  made  by  a  rubber  stamp  pro- 
vided for  the  purpose  is  sufficient  to  mark 
a  ballot.  McMahon  v.  Polk,  10  S.  D.  296, 
73  N.  W.  77,  47 :  830 

174.  A  vote  should  be  counted  which  con- 
tains a  cross  opposite  the  name  of  a  can- 
didate, although  it  is  partially  obscured  by 
a  heavy  printed  line  on  the  paper.  Id. 

175.  A  ballot  is  not  vitiated  by  the  fact 
that  the  cross  is  blurred  as  though  by  ink 
from  a  rubber  stamp,  if  the  outline  of  a 
perfect  cross  is  traced  or  indicated  by  pen- 
cil marks.  Id. 

176.  The  provision  of  Kan.  Sess.  Laws 
1893,  chap.  78,  §  25,  that  a  ballot  shall  not 
be  counted  if  the  voter  fails  to  mark  it  as 
required  by  statute,  is  mandatory,  and  pre- 
vents the  counting  of  a  ballot  not  marked 
with  a  cross  upon  the  designated  square  or 
space.  Taylor  v.  Bleaklev,  55  Kan.  1.  39 
Pac.    1045/  '  28:  683 

177.  A  ballot  cannot  be  counted  at  all 
under  the  Indiana  act  of  March  6,  1889,  un- 
less the  squares  preceding  the  title  of  the 
ticket,  or  some  one,  at  least,  of  the  squares 
preceding  the  names  of  candidates,  are 
touched  by  the  stamp  with  which  the  act 
requires  the  ticket  to  be  stamped  in  order 
to  designate  the  persons  voted  for.  Parvin 
V.  Wimberg,  130  Ind.  561,  30  N.  E.  790. 

15:  775 


ELECTIONS,  II.   b,  2. 


1105 


178.  A  requirement  of  an  ordinance  that 
:a  vote  for  or  against  a  bond  proposition 
shall  be  indicated  by  writing,  or  causing  to 
be  written  or  printed  the  word  "Ves"  or 
"Xo"  on  the  right-hand  margin  of  the  tick- 
et opposite  the  proposition,  is  mandatory 
when  the  ordinance  is  authorized  by  and 
lias  the  force  of  a  statute,  and  therefore  it 
it  insufficient  to  mark  a  cross  after  the 
word  "Yes"  or  "No"  when  both  these  words 
are  printed  opposite  the  proposition.  Mur- 
phv  V.  San  Luis  Obispo,  119  Cal.  624,  51 
Pac.   108.5,  39:  444 

179.  A  single  name  in  one  of  the  columns 
for  party  tickets  on  an  official  ballot,  other 

*columna  of  which  have  full  lists  "qf  candi- 
dates, is  a  "group"  within  the  meaning  of 
a  statute  requiring  the  voter  to  cross  out 
the  groups  he  does  not  wish  to  vote.  Hope 
V.  Flentge.  140  Mo.  390,  41  S.  W.  1002, 

47:  806 

180.  A  voter  is  imperatively  required  to 
(TOSS  out  all  but  one  of  the  groups  of  can- 
didates upon  his  ballot,  bv  ^lo.  Rev.  Stat. 
1889.  §  4781.  as  amended  by  Mo.  act  April 
18,  1893,  which  declares  that  "he  shall  pre- 
pare his  ballot  by  crossing  out  the  groups 
he  does  not  wish  to  vote."  Id. 

181.  Leaving  two  columns  uncrossed  on  an 
official  ballot,  in  violation  of  a  statute 
which  requires  the  voter  to  cross  out  the 
groups  he  does  not  wish  to  vote,  renders 
the  ballot  void  as  an  entirety,  and  not 
merely  as  to  the  offices  for  which  ciuidi- 
dates  are  named  in  each  column,  although 
there  is  but  one  name  in  one  of  the  columns, 
while  in  the  other  column  there  is  a  full 
list  of  candidate.  Id. 
Stickers;    pasters. 

As  Distinguishing  Mark,  see  infra,  240,  241. 

182.  A  provision  for  "inserting"  in  the 
blank  space  of  an  official  ballot  any  name 
not  ahead}'  on  the  ballot  does  not  require 
the  name  to  be  written,  but  permits  the 
use  of  a  "sticker."  De  Walt  v,  Bartlev, 
146  Pa.   529,  24  Atl.    185.  15:  771 

183.  Pasting  or  sticking  another  ticket  on 
an  official  ballot  is  not  a  lawful  mode  of 
voting,  under  HI.  act  of  1891,  requiring  the 
names  of  all  candidates  to  be  printed  on 
one  ballot,  except  names  written  thereon  by 
the  voter,  and  requiring  the  voter  to  pre- 
pare his  ballot  by  marking  a  cross  opposite 
ihe  name  of  each  candidate  voted  for. 
Fletcher  v.  Wall,  172  111.  426,  50  X.  K.  230. 

40:  617 

184.  A  voter  cannot  paste  a  slip,  ticket, 
•or  sticker  procured  from  outside  parties 
over  the  printed  matter  as  well  as  the 
blank  spaces  in  the  right-hand  column  of 
an  official  ballot,  where  the  only  ]>rescribed 
mode  of  voting  for  persons  who  were  not 
already  named  thereon  is  by  inserting  their 
names  in  blank  spaces  ])repared  therefur  in 
such  column.  Re  Little  Beaver  Twp.  Con- 
tested   Election,    105    Pa.    2.33,    .30    Atl.    955, 

27 :  234 

185.  The  fact  that  paster  ballots  placed 
on  ballots  for  town  officers  contain  also 
the  names  of  candidates  for  excise  commis- 
sioners,  who  cannot    lawfully  be   voted   for 

L.R.A.  Dig.— 70. 


on  that  ticket,  will  not  justify  the  in- 
spectors in  refusing  to  count  and  declare 
them  in  stating  the  result,  where  these  past- 
er ballots  were  a  part  of  those  printed  at 
private  expense  by  candidates  of  an  inde- 
pendent meeting  or  caucus,  all  of  which  were 
alike.  People  ex  rel.  Bradlev  v.  Shaw,  133 
X.    Y.    493,   31    X.    E.    512,     '  16:  606 

Erasures   and   substitutions. 
Erasjiro  as  Distintruishing  Alark,  see  infra, 

234-239. 
For  Editorial  Notes,  see  infra,  V.  §  6. 

186.  The  use  of  an  indelible  pencil  in 
erasing  and  substituting  the  name  of  a 
candidate  on  a  ballot  is  within  the  spirit 
of,  and  a  substantial  compliance  with,  a 
statute  Avhich  requires  it  to  be  done  with  "a 
lead  pencil  or  common  writing  ink"  in  order 
to  permit  the  ballot  to  be  counted.  Rut- 
ledge  V.  Crawford,  91  Cal.  526,  27  Pac.  761 . 

13:  761 

187.  Red  ink  is  common  writing  ink  with- 
in the  meaning  of  such  a  statute.  Id. 

188.  Erasing  the  name  of  a  candidate  will 
not  prevent  counting  a  ballot  for  him,  un- 
der the  California  statute,  unless  another 
is  substituted,  or  the  words  "no  vote"  writ- 
ten thereon  after  his  name.  Id. 

189.  A  ticket  having  the  names  of  two 
candidates  for  judge  and  one  for  senator 
arranged  and  numbered  in  consecutive  or- 
der cannot  be  counted  for  another  candi- 
date for  judge  whose  name  is  written  on 
the  line  for  and  in  the  place  of  the  name 
of  the  senatorial  candidate,  which  is  erased. 

Id. 

190.  Writing  the  name  of  another  person 
in  pencil  under  the  printed  name  of  a  can- 
didate on  a  ballot  is  within  the  prohibition 
of  a  statute  against  putting  on  a  ballot 
anything  except  the  names  of  the  candi- 
dates, the  office,  and  the  party.  State  ex 
rel.  Phelan  v.  Walsh,  62  Conn.  260,  25  Atl. 
1,  17:364 

191.  A  name  written  on  an  official  ballot 
in  place  of  the  printed  name  of  a  candidate, 
which  is  erased,  does  not  constitute  a  valid 
note  under  the  Louisiana  statute  requiring 
"that  all  the  names  of  persons  voted  for 
shall  be  printed  on  one  ticket  or  ballot." 
State  ox  rel.  INIize  v.  McElroy,  44  La.  Ann. 
796.  11  So.  133,  16:  278 
Voting  machine. 

192.  A  law  authorizing  a  given  city  to  use 
a  voting  machine  by  which  a  ballot  contain- 
ing the  names  of  the  candidates  is  punc- 
tured, and  a  record  of  the  choice  of  the  vo- 
ters 's  secured,  is  authorized  by  R.  I.  Const, 
art.  8,  §  2,  providing  that  the  voting  for 
general  officers  shall  be  by  "ballot,"  and  that 
in  all  cases  where  an  election  is  made  by 
"ballot  or  paper  vote"  the  manner  of  bal- 
loting shall  be  the  same  as  now  required 
in  voting  for  general  officers,  until  "other- 
wise prescribed  bv  law."  Re  Opinion  of  the 
Justices,  19  R.  1.'729,  36  Atl.  716,       36:  547 

19.3.  A  statute  permitting  the  use  of  a 
voting  machine  which  assures  secrecy,  free 
choice  of  candidates,  a  correct  record  of  the 
vote,  and  a  correct  record  and  announcement 
of  the  total  vote  given  for  each  candidate, 
does  not  contravene  a  constitutional  require- 


1106 


ELECTIONS,   II.  b.  3. 


ment  that  all  votes  at  elections  shall  be  giv- 
en bv  ballot.  People  ex  rel.  Detroit  v. 
Board  of  Inspectors,  139  Mich.  548,  102  N. 
W.   1029,  69:  184 

194.  Constitutional  requirements  of  a 
written  vote,  and  provisions  for  sorting  and 
counting,  will  not  preclude  the  use  of  a 
voting  machine  by  which  the  result  is  ef- 
fected by  a  system  of  wheels,  cogs,  and  in- 
dexes in  connection  with  written  or  printed 
names  of  the  candidates, — at  least  if  the 
action  of  the  machine  in  registering  each 
vote  cast  is  visible  to  the  voter  casting  it, 
and  the  work  of  the  machine  in  adding  the 
votes  is  done  under  the  supervision  of  some- 
one duh'  charged  with  counting  the  votes 
cast.  Re  House  Bill  No.  1,291,  178  Mass. 
605,  60  N.  E.  129,  54:  430 
Assisting  voter. 

See  also  supra,  165. 

195.  Under  an  election  law  which  provides 
that  the  voter  must,  on  his  way  to  the  poll- 
ing place,  pass  along  through  a  booth  in 
which  the  printed  tickets  are  directed  to  be 
deposited,  and  where  he  must  prepare  his 
vote,  blind  persons,  those  who  cannot  read, 
and  cripples  who  cannot  walk,  are  entitled 
to  receive  assistance  in  the  preparation  of 
their  tickets,  which  may  be  prepared  out- 
side the  polling  place,  where  the  law  con- 
tains no  express  prohibition  against  such 
assistance.  Detroit  v.  Rush,  82  Mich.  532, 
46  N.  W.  951,  10:  171 

196.  It  is  not  an  unreasonable  restriction 
of  the  right  to  vote  to  require  an  oath  that 
a  voter  is  unable  to  read  English  before 
allowing  another  to  mark  his  ballot  on  the 
ground  of  such  inabilitv.  Ellis  ex  rel.  Rev- 
nolds  V.  Mav,  99  Mich'  538,  58  N.  W.  48^3. 

25:  325 

197.  A  statute  requiring  voters  to  be 
sworn  as  to  their  inability  to  read  English 
before  allowing  a  person  to  mark  their 
ballots  for  them  is  mandatory,  and  not 
merely  directory  in  respect  to  the  oath.  Id. 

198.  Aid  to  a  voter  in  casting  his  ballot, 
given  by  the  judges  of  election  without 
requiring  a  preliminary  oath  from  him  as 
the  statute  requires,  does  not  make  his 
vote  invalid  in  the  absence  of  any  fraud  on 
his  part,— at  least,  if  the  voter  was  one 
who  was  piilitled  to  such  assistance  on  mak- 
ing the  oath.  Hope  v.  Flontgc,  140  Mo. 
390,    41    S.    W.    1002,         .  47:  806 

199.  The  fact  that  election  judges  went 
into  the  booths  with  electors  in  violation  of 
the  statute  will  not  render  the  ballots  void 
if  there  was  no  design  to. influence  the  elec 
tors  unduly,  unless  they  were  in  fact  im- 
posed upon  or  some  advantage  taken  of 
them.  Id. 

3.  Distinguishing  Af  rks. 
a.  In  general. 

For  Editorial  Xotos,  see  infra,  V.  §  6. 

200.  An  objection  that  a  clause  which  pro- 
vides that  if  any  ])allot  sliall  have  thereon 
a  mark,  sign,  signature,  or  device  other  tlian 
permitted  by  the  statute  it  shall  be  void, 
is   unconstitutional    because   the   voter    mav 


lose  his  vote  by  the  fraud  or  neglect  of 
those  preparing  the  ballots,  is  not  sound... 
The  most  stringent  directions  are  given  re- 
specting the  preparation  of  the  official  bal- 
lots and  the  law  presumes  that  they  will  be 
obeyed.  State,  Ransom,  Prosecutor,  v. 
Black  (N.  .J.  Sup.)  64  N.  J.  L.  446,  24  Atl. 
489,  16:  769 

201.  Anything  written  or  printed  on  the 
outside  of  a  ballot  to  make  the  voting  of 
it  possible  or  practicable,  and  not  placed 
there  for  the  purpose  of  making  it  known 
for  whom  the  elector  votes,  and  not  neces- 
sarily or  commonly  used  for  such  purpose, 
is  not  an  luiconstitutional  violation  of  the 
secrecy  of  the  ballot  or  a  violation  of  a» 
statute  making  it  an  offense  to  put  any 
mark  or  device  on  the  back  of  a  ballot. 
State  ex  rel.  Briesen  v.  Barden,  77  Wis. 
601.  46  X.  W.  899,  10:  155 

202.  To  print  the  word  "judiciary"  on  the 
backs  of  judicial  ballots  of  one  candidate 
will  not  prevent  their  being  counted,  where 
some  such  word  is  necessary  to  render  the 
voting  of  the  ballots  practicable,  although 
the  word  is  not  on  the  ballots  of  the  other 
candidates  and  the  secrecy  of  the  ballot  ia 
consequently  in  a  measure  destroyed.       Id. 

203.  Printing  the  word  "judiciary"  on  the 
backs  of  judicial  ballots  is  reasonable  and 
proper  for  the  purpose  of  rendering  the 
voting  of  them  practicable,  where  judicial 
officers  are  required  to  be  chosen  at  an  elec- 
tion at  which  other  officers  are  also  chosen,- 
and  the  ballots  of  the  judicial  officers  are- 
required  to  be  put  into  a  separate  box  by 
them-selves.  Id. 

204.  Official  ballots  will  not  be  excluded 
from  the  count  under  a  statute  making  void 
all  ballots  having  any  distinguishing  mark, 
because  they  have  upon  them  an  unauthor- 
ized vignette,  where  it  appears  on  all  the- 
ballots  cast  in  the  county,  and  they  were 
certified  by  the  proper  officers,  and  there  is 
nothing  to  show  fraud  or  wrongdoing  on 
the  part  of  either  candidate  or  voters. 
Lindstrom  v.  Manistee  County  Canvassers,. 
94  Mith.  467,  54  X.  W.  280,  19:  171 

205.  The  inscription  "Ok"  upon  the  back 
of  ballots  is  a  device  which  makes  them 
void  under  N.  C.  Code,  §  2687,  which  re- 
quires ballots  to  "be  without  device."  State, 
ex  rel.  Baxter  v.  Ellis,  111  X.  C.  124,  15  S. 
E.  938,  17 :  382 

20G.  (ieneral  ballots  for  a  state  election 
printed  without  the  name  of  any  candidate 
for  a  certain  local  office,  some  of  which  are 
used  by  fil'iiig  in  the  name  of  the  candidate 
with  a  typewriter,  or  with  pencil  or  ink,  and 
some  u.'ed  without  the  name  of  any  candi- 
date for  that  office,  are  not  invalid  as  te- 
ing  distinguished  by  a  mark  or  device;  but 
sucii  a  ballot  with  the  lower  part  cut  or 
torn  off  below  the  name  of  the  local  office 
is  invalid.  State  ex  rel.  Phelan  v.  Walsh, 
62   Conn.  260,  25  Atl.   1,  17:364 

207.  The  ])resum])tion  is  that  an  "(ifT.-^et." 
or  faiiif  im]tression  of  printing,  on  the  h.ack 
of  a  ballot,  or  a  grease  stain  or  small  piece 
of  sealing  wax  thoroon,  was  the  result  of 
accident.  T^ntlcdire  v.  Crawford.  91  f'aL 
.52G.  27  Pac.  761,  "  13:  761 


ELECTIONS,  II.  b,  3. 


1W7 


208.  A  small  piece  of  sealing  wax  or  a 
small  grease  stain  on  the  back  of  a  bal- 
lot vvil!  not  prevent  counting  it,  unless  it 
is  sliown  not  to  be  accidental.  i<l. 
Erroneous  ofBcial  indorsement. 

■    See  uIko  supra,  150-155. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

209.  Statutory  permission  to  use  unofficial 
ballots  in  the  absence  of  the  official  ones  re- 
quired by  law  to  be  prepared  and  furnished 
at  public  expense  for  the  use  of  voters  at 
public  elections,  and  to  contain  a  certain 
official  indorsement,  will  not  justify  the 
counting,  as  unofficial,  of  ballots  purporting 
to  be  official,  but  which  are  defective  be- 
cause bearing  the  wrong  indorsefljent.  Peo- 
ple ev  reJ.  Nichols  v.  Onondaga  Oountv  Can- 
vassers, 129  N.  Y.  395,  29  N.  E.  327,  i4:  624 

210.  Where  all  the  ballots  of  one  politi- 
cal party  cast  at  a  particular  polling  place 
bear  a  wrong  indorsement  by  which  they 
mav  be  distinguished  from  other  ballots 
cast  at  the  same  place,  in  contravention  of 
the  provisions  of  an  act  providing  for  the 
secrecy  of  the  ballot,  a  count  of  them  will 
not  be  justified  by  the  facta  that  the  in- 
dorsement was  wrong  because  of  a  mistake 
of  the  county  clerk  in  distributing  ballots 
to  the  polling  places,  that  they  have  been 
cast  by  the  voters  and  received  by  the  in- 
spectors in  good  faith,  and  that  their  rejec- 
tion will  result  in  disfranchising  many  vot- 
ers and  altering  an  honest  expression  of 
the  popular  will.  Id. 

211.  Ballots  which  are  distributed  to  and 
oast  at  a  polling  place  different  from  the  one 
fo'  which  they  were  indorsed  cannot  be 
co»"nte<l  under  a  law  to  enforce  secrecy  of 
the  ballot  and  provide  for  the  printing  and 
distribution  of  ballots  at  public  expense, 
which  requires  each  ballot  to  be  indorsed  as 
an  official  ballot  for  the  polling  place  at 
which  it  is  to  be  used,  and  prohibits  the 
counting  of  ballots  which  have  not  the 
printed  official  indorsement,  when  the  wrong 
indorsement  appears  upon  the  tickets  of  one 
party  only,  thereby  rendering  them  easily 
distinguishable   from  all  the  other   ballots. 

Id. 
Printer's  marks. 
See  also  supra.  207. 
For  Editorial  Notes,  see  infra,  V.  §  6. 

212.  Marks  on  ballots  which  were  acci- 
dentally cau«ed  in  printing  will  not  make 
them  invalid.  State  ex  rel.  Phelan  v. 
Walsh,  62  Conn.  260,  25  Atl.  1,  17:  364 

213.  A  ballot  having  on  its  back  "oifset," 
or  faint  impre«ssion  of  the'  printing  on  a 
similar  ticket,  will  not  be  rejected  un- 
der Cal.  Pol.  Code,  §  1206.  as  bearing  any  de- 
vice, etc.  designed  to  distinguish  it.  without 
proof  that  the  impression  was  the  result 
of  design.  Rutledge  v.  Crawford,  91  Cal. 
526,  27  Pac.  761,  13:  761 

b.  Voter's  Marks. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

214.  A  mark  on  a  ballot  for  which  a 
plausible  reason  may  be  suggested  consist- 
ent with  honesty  and  good  faith  will  rarely 


invalidate  the  ballot,  unless  it  appears  that 
it  was  in  fact  used  for  corrupt  purposes; 
but  it  is  otiierwise  as  to  a  mark  for  which 
no  such  reason  can  be  suggested.  State  ex 
rel.  Phelan  v.  Walsh,  62  Cenn.  260,  25  Atl. 
1,  17:364 

215.  The  use  of  a  mark  or  character  which 
furnishes  the  means  to  designing  persons  of 
avoiding  the  law  as  to  secrecy  will  require 
the  rejection  of  a  ballot  under  the  Illinoi» 
ballot  law,  though  it  contains  no  prohibition 
of  distinguishing  marks,  even  if  the  mark  or 
character  used  indicates  an  intention  to 
vote  a  particular  party  ticket  or  for  certain: 
candidates.  Parker  v.  Orr,  158  111.  609,  41 
N.  E.  1002,  30:  227 

21G.  A  ballot  which  has  been  marked  for 
tlie  purpose  of  distinguishing  the  same,  con- 
trary to  the  provisions  of  the  statute  mak- 
ing such  marking  a  criminal  act,  cannot  be 
counted,  although  the-  statute  does  not  in 
terms  forbid  it,  and  even  though  the  stat- 
ute elsewhere  specifically  enumerates  classes 
of  ballots  which  shall  not  be  counted,  with- 
out including  those  with  distinguishing 
marks.  Parker  v.  Hughes,  64  Kan.  216,  65 
Pac.  265,  56:275 

217.  The  provisions  of  the  Indiana  stat-. 
utes  that  a  ballot  bearing  a  distinguishing 
mark  or  mutilation  shall  be  void,  and  also 
that  a  stamp  elsewhere  than  on  a  square 
prescribed  by  statute  shall  be  treated  as  a 
distinguishing  mark,  are  mandatory,  and  not 
merely  directory,  so  that  a  corrupt  intent 
in  making  such  prohibited  marking  is  Hot 
necessary  to  defeat  the  vote.  Sego  v.  Stod- 
dard, 136  Ind.  297,  36  N.  E.  204,         22:  468 

218.  A  ballot  marked  simply  by  writing 
the  word  "Democratic"  at  the  head  of  the 
Democratic  ticket,  or  one  marked  by  a  sin- 
gle mark  across  or  through  the  circle  or 
square,  or  marked  with  a  circle  or  irregu- 
lar character  within  the  circle  or  square,  or 
marked  with  crosses  opposite  the  names  of 
candidates,  but  entirely  outside  of  the 
squares;  as  well  as  a  ballot  signed  by  the 
name  of  the  voter, — must  be  rejected  a& 
disregarding  the  plain  directions  of  the  law- 
requiring  the  ballot  to  be  marked  by  a 
cross  in  the  appropriate  margin  or  place 
opposite  the  name,  and  as  furnishing  the 
means  whereby  the  secrecy  of  the  ballot, 
couid  bo  de.stroved.  Parker  v.  Orr,  158  IlL 
609,  41   N.    K.    i002.  30:  227 

219.  A  blurred  spot  plainly  made  on  a 
ballot,  which  might  have  been  made  for 
identification,  or  a  cross  not  opposite  the 
name  of  any  candidate,  or  a  number  of 
crosses  in  a  bunch,  or  a  mark  which  is  not 
a  cross,  or  the  use  of  a  blue  lead  pencil, — 
is  ground  for  rejecting  the  ballot  under  the 
Nevada  ballot  law,  §§  20,  26,  providing  that 
the  liallot  shall  be  marked  with  a  cross  aft- 
er the  names  of  the  persons  for  whom  the 
elector  votes,  in  black  pencil,  and  that  any 
marks  except  as  provided  in  the  act  shail 
invalidate  the  ballot.  Dennis  v.  Caughlin, 
22  Ncv.   447,  41   Pac.   768,  29:  731 

220.  An  initial  in  a  space  left  in  a  ballot 
for  the  insertion  of  the  name  of  a  candidate, 
although  made  with  the  intention  of  writ- 
ing a  name  which  was  abandoned,  is  a  dis- 


1108 


ELECTIONS,   II.  b.  3. 


tinguishing   mark   making   the   ballot  void. 
Tebbe  v.  Smith,  108  Cal.  101,  41  Pac.  454, 

29:  673 

221.  Ballots  folded  or  creased  precisely 
alike  and  in  a  strikingly  unusual  manner, 
.so  that  the  crease  produces  an  enduring  and 
permanent  mark  by  which  the  ballot  can 
readily  be  distinguished  when  unfolded, 
must  be  rejected  where  marks  or  devices  to 
identify  a  ballot  in  any  manner  are  prohib- 
ited by  statute.  State  ex  rel.  Phelan  v. 
Walsh,"  62  Conn.  260,  25  Atl.   1.         17:  364 

222.  A  printed  political  circular  found  in 
the  envelope  with  each  of  nineteen  ballots 
raises  so  strong  a  presumption  of  design 
as  to  be  regarded  as  a  device  to  identify 
the  ballots.  Id. 
Mark  in  wrong  place. 

See  also  supra,  217-219. 

For  Editorial  Xote.s,  see  infra,  V.  §  6. 

223.  A  stamp  at  or  on  a  square  opposite 
a  blank  space  left  for  the  name  of  a  can- 
didate is  a  distinguishing  mark  under  the 
Indiana  statute  which  prohibits  any  stamp 
excepting  in  the  square  inclosing  the  device 
or  in  the  square  opposite  the  name  of  a 
candidate.  Sego  v.  Stoddard,  136  Ind.  297, 
36  N.  E.  204,  22:  468 

224.  Imperfect  success  in  marking  a  cross 
in  the  proper  place  to  indicate  a  choice  of 
candidates,  where  there  was  a  clear  inten- 
tion to  conform  to  the  statute,  and  not  to 
distinguish  the  ballot,  will  not  require  its 
rejection.  Parker  v.  Orr,  158  111.  609.  41 
N.  E.    1002,  30:  227 

225.  A  cross  in  the  marginal  space  at  the 
right  of  the  name  of  a  candidate  and  out- 
side of  the  square  is  not  a  distinguishing 
mark  within  Cal.  Pol.  Code,  §  1215.  as  the 
Code  does  not  expressly  require  the  mark 
to  be  placed  within  such  square,  although 
it  requires  the  clerk  in  printing  the  ticket 
to  place  upon  it  the  words.  "To  vote  for  a 
person,  stamp  a  cross  (X)  in  the  square  at 
the  right  of  the  name."  Tebbe  v.  Smith, 
108  Cal.  101,  41  Pac.  454,  29:  673 

226.  That  the  lines  forming  the  cross  ex- 
tend slightly  beyond  the  line  of  the  circle 
Avill  not  vitiate  the  ballot.  McMahon  v. 
Polk.  10  S.  D.  296,  73  X.  W.  77,  47:  830 
Mark  with  wrong  implement. 

See   also   supra.  219. 

For  Editorial  Xotes.  see  infra.  V.  ?  6. 

227.  The  ])rovisi()n  for  marking  ballots 
witli  ink.  in  the  Nebraska  act  of  March  4, 
1891.  §  20.  known  as  the  Australian  ballot 
law.  is  directory  only:  and  ballots  marked 
with  a  pencil  will  be  citiinted  in  the  absence 
of  fraud,  if  regular  in  other  respects.  State, 
ex  rel.  "Waggoner  v.  Russell.  .34  Neb.  116. 
51  X.  W.  46.'),  15:  740 
Suoerfluous  marks. 

See   ;.!s(.    supra.   218-220. 

For  Editorial  Xotes.  see  infra.  V.  §  6. 

228.  A  Ijallot  is  not   void  as  Viearing  dis- 
tinguishing  marks,   where   a    name    appears 
thereon  more  than  once  as  a  candidate  for 
the  same  ofTice.  upon  two  oi-  more   tickets, 
and    such    name    is    marked    with    a    cross  i 
mark  in  the  squares  opposite  the  same  two  | 
or  more  times,  the  excess   of  marks  being  i 
mere     surplusage,     and     not     distinguishing  j 


marks.     Parker  v.  Hughes,  64  Kan.  216,  65 
Pac.  265,  56:  275 

229.  Adding  his  party  designation,  i.  e., 
"Independent  Democrat,"  to  the  name  of  a 
candidate  \^itten  upon  a  ballot  in  the  same 
way  that  party  designations  follow  the 
names  of  candidates  in  the  printed  list 
as  required  by  Cal.  Pol.  Code,  §  1191,  does 
not  destroy  the  legality  of  the  ballot  when 
it  was  manifestly  not  intended  as  a  dis- 
tinguishing mark.  Jennings  v.  Brown,  114 
Cal.  307,  46  Pac.  77,  34:  45 

230.  A  ticket  is  not  vitiate<l  by  the  fact 
that,  besides  the  cross  within  the  circle, 
another  appears  just  outside  the  circle,  as 
though  made  by  inadvertently  placing  the 
stamp  upon  the  paper.  McMahon  v.  Polk, 
10  S.  D.  296,  73  X.  W.  77,  47:  830 
Imperfect  marks. 

See  also  supra,  219. 

For  Editorial  Notes,  see  infra,  V.  §  6. 

231.  A  mark  on  a  ballot,  which  bears  nr- 
resemblance  to  a  cross,  without  any  attempt 
to  make  a  cross  of  any  kind  on  the  ballot, 
will  not  permit  it  to  be  counted.  Parker  v. 
Orr.  1.58  "111.  609,  41  X.  E.   1002,         30:227 

232.  A  mark  made  with  ink  and  somewhat 
blurred,  even  if  it  cannot  be  said  to  be  a 
cross  strictly  speaking,  if  it  shows  an  at- 
tempt to  make  a  cross,  may  be  sufficient 
to  allow  the  ballot  to  be  counted.  Id. 

2.33.  A  word  which  is  read  by  one  party 
as  "get"  and  by  the  other  as  "yes,"  oppo- 
site a  proposed  constitutional  amendment,  is 
not  regarded  as  such  a  distinguishing  mark 
as  to  prevent  counting  the  ballot  for  a  can- 
didate named  on  the  same  ballot.  Id. 
Erasures. 
For  Editorial  Xotes,  see  infra,  V.  §  6. 

234.  Erasing  in  ink  a  superfluous  letter  in 
a  misspelled  name  of  a  candidate  does  not 
make  the  ballot  invalid,  if  there  was  no 
ground  for  supposing  that  it  was  designed 
for  the  purpose  of  identification.  State  ex 
rel.  Phelan  v.  Walsh,  62  Conn.  260,  25  Atl. 
1,  17:  364 

235.  A  hole  in  a  ballot  made  in  scratching 
out  a  .stamp  mark  constitutes  a  distinguish- 
ing mark  or  mutilation  within  the  prohibi- 
tion of  the  Indiana  statutes,  although  the 
ballot  is  otherwise  properly  stamped.  Sego 
V.  Stoddard.  136  Ind.  297.  36  X.  E.  204. 

22:  468 

236.  A  lead  pencil  mark  across  the  name 
of  a  candidate  is  a  distinguishing  mark 
which  makes  the  l)allot  invalid  luider  the 
Indiana  statute  which  prohibits  any  distin- 
guishing mark  or   mutilation.  Id. 

237.  The  erasiue  of  names  of  candidates 
by  pencil  marks  drawn  through  them  does 
not  constitute  a  distinguishing  mark  which 
requires  a  rejection  of  the  ballot  as  to 
other  candidates.  Parker  v.  Orr.  158  III.  609, 
41  X.  E.  1002.  30:  227 

238.  A  mark  opposite  the  name  of  a  can- 
didate, and  the  erasure  of  his  rival's  name, 
in  addition  to  the  mark  in  the  circle,  will 
not  xitiatc  the  ballot,  where  there  is  noth- 
ing to  show  a  design  to  thus  mark  the 
ticket  for  the  purpose  of  invading  the  se- 
cn-cv  of  the  ballot.  :McMahon  v.  Polk.  10 
S.    1).    -296,    73    X.    W.    77,  47:830 


ELECTIONS,  11.  c. 


1109 


239.  A  slightly  blurred  spot  or  erasure  on 
a  bal!ot,  made  to  correct  a  mistake,  and  not 
indicating  an  intention  to  identify  the  bal- 
lot, or  a  slight  pencil  mark  made  by  mis- 
take, or  a  tobacco  stain,  will  not  avoid 
the  ballot  under  the  Nevada  ballot  law,  § 
26,  ])roviding  that  any  Ijallot  on  which  ap- 
pear marks  written  or  printed,  except  as 
provided,  shall  not  be  cctunted.  Dennis  v. 
Caughlin.  22  Xev.  447,  41  Pac.  768,  29:  731 
Pasters  or  stickers. 

240.  Fourteen  h.illots  having  pasters 
writti-n  in  ink  in  the  same  handwriting,  but 
with  a  difl'erent  name  on  each  paster,  may 
properly  be  rejected  in  tlie  absence  of  any 
satisfactory  explanation  to  slio*v  that  this 
was  not  a  device  for  identifying  \he  voters. 
State  ex  rel.  Phelan  v.  Walsh,  62  Conn.  260, 
25  Atl.  1,  17:  364 

241.  Three  ballots,  each  of  which  had  over 
the  name  of  a  candidate  two  pasters  with 
the  names  of  different  persons,  of  whom 
one  was  a  candidate  in  another  district, 
will  be  rejected  in  the  absence  of  anytliing 
to  explain  why  the  three  should  all  be 
treated  in  precisely  the  same  very  unusual 
May.  Id. 

c.  Result;    Canvassing. 
For  Editorial  Notes,  see  infra,  V.  §  7. 
Judii-ial  Xotice  of  Votes  Cast,  see  Evidence, 
39  41. 

242.  The  ineligibility  of  a  person  who  re- 
ceived the  majority  of  the  votes  cast  for  an 
office  does  not  entitle  the  minority  candi- 
date to  the  office, — at  least  when  those 
who  voted  for  the  former  did  not  know  of 
his  ineligibility.  State  ex  rel.  Goodell  v. 
McGeary,  69  Vt.  461,  38  Atl.  165,  44:  446 
Tie;   majority;   two  thirds  vote. 

Two  Thirds  Vote  as  to  Issuance  of  Mu- 
nicipal Bonds,  see  Bonds.   123.   124. 

To  Adoption  of  Constitutional  Amendment, 
see    Constitutional    Law,    16-20. 

On  Change  of  County  Boundary,  see  Coun- 
ties, 9. 

Vote  for  Annexation  to  City,  see  Municipal 
Corporations,  28. 

Majority  Vote  on  Amendment  of  Charter, 
sec    Municipal    Corporations,    46. 

Majority  Vote  for  Creation  of  City  Debt, 
see  Municipal  Corporations,  326,  329, 
331. 

Two-Thirds  Vote  of  Church  Society,  see 
Religious   Societies,   7-10. 

Compelling  Determination  of  Tie  Vote,  see 
Mandamus,   135. 

Estoppel  to  Obtain  Mandamus  to  Compel 
Decision  of  Tie  Vote,  see  Estoppel,  143. 

Necessity  of  Alleging  that  Claimant  Re- 
ceived ^lajority  of  ^'otes,  see  Quo 
Warranto.  34. 

Seating  Candidate  Not  Receiving  ilajority, 
see   Quo  Warranto,  21. 

See  also  infra,  .3.34. 

For   Editorial   Notes,  see  infra,  V.   §   7. 

243.  A  statute  providing  that  a  tie  vote 
may  be  determined  by  lot  does  not  violate 
a  constitutional  provision  that  all  elections 
shall  be  by  ballot.  Johnston  v.  State  ex 
rel.   Sefton",   12?  Tnd.   16,  27  N.  E.  422, 

12:  235 


244.  The  power  to  decide  between  candi- 
dates for  justice  of  the  peace  who  have  an 
ecpial  number  of  votes,  which  Mo.  Rev. 
Stat.  1889,  S  6099,  attempts  to  give  to 
county  courts,  is  denied  by  the  Missouri 
Constitution,  which  provides  for  the  elec- 
tion of  justices  of  the  peace,  without  mak- 
ing any  provision,  or  authorizing  the  gen- 
eral assembly  to  make  any  provision,  for 
deciding  in  case  of  a  tie.  while  it  does  make 
such  provision  in  respect  to  other  otticers. 
State  ex  rel.  Crow  v.  Kramer,  150  Mo.  89,  51 
S.  W.  716,  47:  551 

245.  "A  vote  of  the  people"  reijuired  by 
Neb.  Comp.  Stat.  1895,  chap.  1.3a,  art.  1,  § 
67,  subd.  21,  for  the  is.sue  of  bonds  by  a 
city,  means  a  majority  of  the  voters  of 
t!ie  citv.  Brvan  v.  Stephenson,  50  Neb. 
620,  70  N.  W.  252,  35:  752 

246.  A  majority  of  the  property  taxpaj- 
ers  actuallj'  present  and  voting  at  an  elec- 
tion, and  not  necessarily  a  majority  of  all 
who  are  entitled  to  vote,  is  required  by  La. 
Const,  art.  242,  in  order  to  authorize  spe- 
cial taxes  in  aid  of  public  improvements. 
Citizens  &  T.  v.  Williams,  49  La.  Ann.  422, 
21   So.  647,  37:  761 

247.  A  majority  of  the  votes  cast  at  an 
election,  and  not  merely  of  the  votes  cast 
for  or  against  the  proposition  to  issue  bonds 
of  a  city,  is  required  to  authorize  their 
issue  under  Neb.  Comp.  Stat.  1895,  chap. 
13a,  art.  1,  §  67,  subd.  21,  providing  for 
their  issue  when  "authorized  by  vote  of  the 
people."  Bryan  v.  Stephenson,  50  Neb. 
620,  70  N.  W.  252,  35:  752 

248.  A  constitutional  requirement  of  a 
majority  of  the  electors  voting  at  a  gen- 
eral election  on  the  question  of  the  reor- 
ganization of  a  municipality  is  not  satis- 
tied  by  a  majority  of  those  who  vote  on 
that  question,  if  they  are  less  than  a  ma- 
jority', of  all  who  vote  at  the  election.  Peo- 
ple ex  rel.  Wells  v.  Berkelev,  102  Cal.  298, 
36  Pac.  591,  23:  838 

249.  Those  who  do  not  vote  at  an  elec- 
tion at  which  a  subject-matter  is  to  be  de- 
termined by  a  majority  or  larger  percentage 
of  the  voters  are  considered  as  acquiescing 
in  the  result  as  determined  by  the  votes 
actually  cast,  even  if  only  a  minority  of 
those  entitled  to  vote  really  vote.  Mont- 
gomery County  Fiscal  Ct.  v.  Trimble,  104 
Ky.  629,  47  S.  W.  773,  42:  738 

250.  All  qualified  property  taxpayers  who 
absent  themselves  trom  an  election  duly 
called  are  presumed  to  consent  to  the  ex- 
pressed will  of  the  majority  of  those  vot- 
ing, unless  the  law  providing  for  the  elec- 
tion otherwise  declares.  Citizens  &  T.  v. 
Williams,  49  La.  Ann.  422,  21  So.  647, 

37:  761 

251.  In  determining  whether  any  candi- 
date for  a  certain  state  office  received  a 
majority  of  the  votes  cast,  where  this  is 
necessary  to  an  election,  ballots  for  the 
Tcneral  state  officers  rejected  without  stat- 
ing specifically  in  a  certificate  the  reasons 
therefor  as  required  by  statute  will  be 
counted  in  making  up  the  whole  number  of 
votes  cast,  although  it  does  not  appear 
whether   thev   contained    the   name   of   anv 


1110 


ELECTIONS,  U.  c. 


candidate  for  the  particular  office  in  ques- 
lion.  State  ex  rel.  Phelan  v.  Walsh,  62 
<onn.   260,  25  Atl.   1,  17:364 

252.  Two  thirds  of  the  votes  cast  on  the 
proposition  are  sufficient,  by  the  express 
terms  of  Neh.  Laws  1897,  chap.  24,  respect- 
ing an  election  for  a  county  exhibit  at  an 
interstate  exposition,  although  the  general 
provision  of  Neb,  Comp.  Stat.  chap.  18,  art. 
1,  §§  27-30,  is  construed  to  require  two 
thirds  of  the  votes  cast  at  an  election  held 
Tinder  those  statutes.  State  ex  rel.  Douglas 
County  V.  Ck)rnell,  53  Neb.  556,  74  N.  W. 
59,  39:513 

253.  Two  thirds  of  those  voting  for  the 
proposition,  although  they  are  less  than 
two  thirds  of  those  voting  at  the  general 
election  at  which  the  proposition  is  sub- 
mitted, are  sufficient,  under  Ky.  Const.  § 
157,  providing  that  for  the  creation  of 
county  indebtedness  exceeding  the  income 
and*  revenue  provided  for  the  year,  "two 
thirds  of  the  voters  thereof  voting  at  an 
•election  to  be  held  for  that  purpose"'  shall 
be  required.  Montgomerv  Countv  Fiscal 
Ct.  V.  Trimble,  104  Kv.  629.  47  S.  W.  773, 

42:  738 

254.  The  "votes  polled."  contemplated  by 
Dak.  Comp.  Laws.  §  565,  requiring  in  order 
to  effect  a  change  of  the  county  seat  that 
some  place  shall  have  "two  thirds  of  the 
votes  polled."  mean  the  votes  polled  on  the 
proposition  to  relocate  the  count}'  seat,  and 
not  the  votes  polled  for  the  officer  who  re- 
ceived the  highest  number  of  votes  cast  at 
the  same  election  as  that  at  which  the  prop- 
osition was  voted  on.  State  ex  rel.  Little  v. 
Langlie,  5  X.  T>.  594.  67  N.  W.  958. 

32:  723 
Canvassing. 

Majority  Vote,  see  supra,  251. 
Decision  of  Tie  Vote  by  Lot  as  Canvass,  see 

infra,  334. 
Separate  Canvass  for  Presidential  Electors, 

see  Presidential  Electors,  4 
On  Local  Option  Election,  see  Intoxicating 

Liquors.  61. 
Mandamus    to    Control    Canvassing    Board, 

see   Mandamus,    123-132. 
llemoval  from  Office  for  Neglect  as  to,  see 

Officers.  129,  130. 
For  Editorial   Notes,  see  infra,  V.   §   7. 

255.  Ballots  found  in  the  wrong  ballot 
box — such  as  local  in  the  box  provided  for 
state  officers — will  not  be  rejected  merely 
for  that  reason.  Parvin  v.  AA'imberg,  130 
Jnd.  561,  30  N.  E.  790,  15:  775 

256.  The  more  fact  that  oaths  of  inspec- 
tors and  poll  lists  may  have  been  trans- 
mitted to  an  officer  not  authorized  to  re- 
voivp  them  is  an  irregularity  which  does  not 
affect  the  result  of  an  election  or  the  legal- 
ity of  the  canvass  of  returns,  duly  made,  of 
Aotes  cast  at  the  election.  Stockton  v.  Pow- 
ell. 29  Fla.  1.  10  So.  G88.  15:  42 

257.  Thai  a  canvassing  board  has  before 
it  when  making  a  canvass  of  votes  cast  at 
-m  election,  nut  only  the  returns  properly 
made  under  the  statute,  but  also  a  duplicate 
return  made  to  an  officer,  which  the  law 
<Iid  not  require   to  be   made,  is  immaterial. 

Id. 


258.  A  statute  requiring  the  canvass  of 
an  election  as  to  the  issue  of  bonds  to  be 
made  by  the  boaixl  of  county  canvassers 
at  "their  next  regular  or  special  meeting" 
does  not  make  a  canvass  held  at  an  ad- 
journed regular  meeting  on  a  later  day,  il- 
legal. Id. 

259.  A  provision  in  a  section  of  an  elec- 
tion law  which  provides  for  the  canvass- 
ing of  the  votes,  requiring  the  rejection  only 
of  surplus  and  duplicate  votes,  is  not  in 
conflict  with  a  prior  section  making  void 
ballots  not  properly  indorsed,  so  as  to  nul- 
lify the  prior  section,  and  require  such  bal- 
lots to  be  counted.  Slaymaker  v.  Phillips, 
5  Wyo.  453,  40  Pae.  971,  42  Pac.  1049. 

47 :  842 

260.  Unidentified  illegal  votes  should  be 
taken  away  from  the  total  vote  propor- 
tionately according  to  the  entire  vote  re- 
turned for  each  candidate.  Ellis  ex  rel. 
Reynolds  v.  Mav,  99  Mich.  538,  58  N.  W. 
483,  '  25:  325 

261.  The  powor  of  the  state  canvassing 
board  is  confined  solely  to  ascertaining  the 
result  of  the  figures  in  the  returns,  and  its 
duty  is  to  declare  such  result  according  to 
law.  It  cannot  inquire  into  the  eligibility 
of  candidates,  or  declare  a  minority  candi- 
date elected  because  of  his  competitor's 
ineligibility;  nor  can  it  consider  or  act  upon 
any  extraneous  papers  or  information  be- 
yond that  contained  in  the  returns  them- 
selves. People  ex  rel.  Sherwood  v.  State 
Bd.  of  Canvassers,  129  N.  Y.  360.  29  N.  E. 
345,  14:  646 

262.  The  speaker  of  the  house  of  rep- 
resentatives in  Nebraska  is  charged  with 
the  duty  of  opening  and  publishing  elec- 
tion returns  before  proceeding  to  any  other 
business,  immediately  upon  the  organiza- 
tion of  the  house;  and  he  has  no  discre- 
tion in  the  matter.  State  ex  rel.  Benton  v. 
Elder,  31  Neb.  169,  47  N.  W.  710,       10:  796 

263.  A  vote  or  resolution  of  the  joint 
convention  of  the  two  houses  of  the  legis- 
lature in  Nebraska,  directing  the  speaker 
of  the  house  of  representatives  not  to  op-in 
and  publish  election  returns  xmtil  after  the 
determination  of  a  pending  contest,  and  a 
vote  or  resolution  of  .said  joint  convention 
referring  said  returns  to  the  consideration 
of  a  committee, — do  not  relieve  the  speaker 
of  his  duty  to  open  and  publi-sh  the  re- 
turns before  proceeding  to  any  other  busi- 
ness. Td. 
Return  or  certificate  of  canvassers. 
Injunction     against     Certifying    Result     of 

Vote,  see  Injunction,  251. 

Mandamus  to  Compel  Correction  of,  see 
Mandamus,  129. 

Mandamus  to  Compel  Disregard  of,  see  Man- 
damus, 127,  128. 

264.  No  return  is  nece.s.sary  of  the  dupli- 
cate votes  which  are  found  in  one  envelope 
in  case  one  of  them  is  counted,  under  stat- 
utes providing  that  in  case  of  double  bal- 
lots if  all  are  for  the  same  candidate  one 
shall  be  counted,  but  that  if  they  are  for 
different  candidates  neither  shall  be  counted, 
and   requiring  a   special   retuVn   of  rejected 


ELECTlOxXS,  II.  d 


1111 


'S)allots.     State  ex  rel.  Phelan  v.  Walsh,  62 
Conn.  260,  25  Atl.  1,  17:  3«4 

265.  That  ballots  rejected  for  beinj?  double 
were  for  different  candidates  for  the  same 
oHice  must  be  specifically  stated  in  tlie  oer- 
lilicate  setting  out  the  cause  of  rejection, 
where  the  statutes  require  causes  of  rejec- 
tion to  be  specifically  stated,  and  direct  that 
in  case  of  double  ballots  one  of  them  shall 
he  counted  if  all  are  for  the  same  candi- 
date, and  that  neither  shall  be  counted  if 
tiiey  are  for  different  candidates.  Merely 
4!ertifying  that  the  ballots  were  double  is 
not  sufficient.  Id. 

266.  Illegal  acts  of  a  board  of  county  can- 
vassers in  counting  and  rejecting  votes  will 
not  justify  a  refusal  by  the  countjj  clerk  to 
<'ertify  it.s  returns,  where  he  is  made  by 
statute  simply  ex  officio  secretary  of  the 
hoard,  and  charged  with  the  duty  of  attest- 
ing its  action.  People  ex  rel.  Daley  v.  Rice, 
129  N.  Y.  449,  29  N.  E.  355,  14:  643 

267.  A  county  canvassing  board  is  not  de- 
prived of  its  power  to  make,  certify,  and  re- 
turn its  canvass  by  the  absence  or  refusal  to 
act  of  the  county  clerk,  who  is  by  statute 
made  ex  officio  secretary  of  the  board,  and 

charged  with  the  duty  of  attesting  its  action 
and  transmitting  copies  of  its  statements  to 
members  of  the  state  board;  but  in  case  of 

tsuch  absence  or  refusal  the  board  may  desig- 
nate one  of  its  own  members  secretary  pro 
tempore,  and  he  may  lawfully  certify  and 
transmit  statements,  upon  which  the  state 
Tioard  may  legally  act.  Id. 

Recount.  ' 

Mandamus  to  Compel,  see  Mandamus,  125- 
130. 

268.  A  recount  of  the  ballots  of  a  pre- 
cinct will  not  be  ordered  because  of  rejected 
ballots,  if  there  is  no  way  of  identifying 
what  ballots,  if  any,  were  rejected.  Hope 
V.  Flentge,  140  Mo.  390,  41  S.  W.  1002. 

47:  806 

269.  After  a  board  of  state  canvassers  has 
canvassed  all  the  returns  from  all  the  coun- 
"ties  of  the  state,  and  declared  the  result, 
and  ordered  certificates  as  prescribed  by 
statute,  and  then,  having  completed  its 
labors,  adjourned  without  day,  it  is  of- 
ficially dead,  and  the  courts  have  no  power 
to  compel  it  to  reassemble  or  recount  any 
of  the  returns.  Rosenthal  v.  State  Bd.  of 
Canvassers,  50  Kan.  129,  32  Pac.  129.  19:  157 
Declaration  of  result;  certificate  of  election. 
Injunction  against  Delivering  Certificate,  see 

Courts,  283. 
Mandamus  to  Compel  Issuance  of.  ^ee-  Man- 
damus, 131,  132,  140. 

270.  The  official  annoilncement  of  the  re- 
sult of  an  election  liy  the  proper  canvassing 
board  is  of  binding  force  as  to  the  fact  of  an 
actual  election,  until  reversed  or  set  aside 
by  a  court  of  competent  jurisdiction.  State 
ex  rel.  Lamar  v.  Johnson.  35  Fia.  2.  16  So. 
786.  31 :  3.57 

271.  If  the  determination  that  a  certain 
person  is  elected,  and  the  preparation  of  a 
certificate  to  be  delivered  to  him.  exhaust 
the  power  of  the  governor,  luider  a  statute 
devolvintr  »ipon  him  the  duty  of  issuing  a 
corlificnte       of       election.       n       subsequent 


certificate  by  the  governor  to  a  third  person 
does  not  impair  the  right  of  the  person  first 
found  to  be  elected,  or  give  him  suflficient 
reason  to  seek  the  aid  of  a  court  of  equity 
to  protect  his  claim.  Bates  v.  Taylor,  87 
Tenn.  319,  11  S.  W.  266,  3:  316 

272.  Whether  the  duty  of  issuing  a  com- 
mission or  certificate  of  election  to  each  per- 
son elected  representative  to  Congress  from 
the  state  of  Tennessee  devolved  upon  the 
governor  of  that  state  by  Tenn.  Code  (Mill. 
&  V.)  §§  1094,  1146,  is  called  ministerial  or 
executive,  the  performance  thereof  is  an  of- 
ficial action  which  can  be  neither  coerced  nor 
restrained  by  the  courts.  Id. 

273.  It  is  the  province  of  the  governor  to 
construe  for  himself  a  statute  devolving 
upon  him  the  duty  of  issuing  a  commission 
or  certificate  ,of  election,  and  to  determine 
his  course  of  action  thereunder;  and  so 
long  as  he  acts  with  an  honest  purpose  of 
discharging  his  duty  imder  the  law,  his  ac- 
tion cannot  be  characterized  as  unlawful. 
In  such  case  the  courts  cannot  substitute 
their  judgment  for  his:  and,  even  after  he 
and  the  secretary  of  state,  who  by  law 
constitute  a  board  to  canvass  the  returns, 
have  ascertained  that  a  certain  person  i« 
elected,  and  a  certificate  has  been  prepared 
ready  for  delivery  to  him,  the  courts  cannot 
prevent  the  governor  from  changing  hia  de- 
cision and  issuing  a  certificate  to  another. 

Id. 

d.  Election   Frauds;   Crimes. 

Regulations  to  Prevent,  see  supra,  73. 
Criminal  Registration,  see  supra,  52. 
As  Ground  for  Contest,  see  infra,  331-333. 
Pleading   imder   Corrupt   Practice  Act,   see 

infra,  337. 
Alleging    Frauds    in    Election    Contest,    see 

infra,    345. 
Betting  on  Election,  see  Betting,  1. 
Indictment  for  Vote  Selling,  see  Indictment, 

etc.,   66. 
Removal   from   Office   for,   see  Officers,   134, 

1.35. 
Penalty  for  Purchase  of  Vote,  see  Penalties, 

5." 
Special   Proceeding  under  Corrupt  Practice 

Act,  see  Quo  Warranto,  2. 
Vote    Buyer's    Right    to    Reward,    see    Re- 
ward,  14. 
Re|>cal  of  Statute  as  to.  see  Statutes,  563. 
Title  of  Statute  as  to,  see  Statutes,  229. 
See  also  Officers.  9. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

274.  Vote-selling  or  bribery  at  elections  is 
within  a  constitutional  provision  authoriz- 
injT  disfranchisement  for  an  "infamous 
crime."  Baum  v.  State.  157  Ind.  282.  61  N. 
E.  672.  55:  250 

275.  A  statute  making  it  an  indictable  of- 
fense to  vote  without  presentins:  to  the 
judges  of  election  an  original  poll-tax  re- 
ceipt, or  a  certified  duplicate  copy  thereof, 
or  a  certifica'te  of  a  constable  or  deputy  col- 
lector or  else  an  affidavit  of  the  voter  that 
he  has  paid  his  poll  tax  and  that  his  receipt 
is  lost  or  misplaced,  is  within  the  power  of 
the  legislature,   even   as   applied   to  a   voter 


1112 


ELECTIONS,  III. 


who  has  actually  paid  his  poll  tax,  where 
the  Constitution  requires  "satisfactory  evi- 
<l('nce"  of  such  payment,  and  also  gives  the 
legislature  power  to  enact  laws  '•to  secure 
the  freedom  of  elections  and  the  purity  of 
the  ballot  box."  State  v.  Old.  95  Tenn.'72.3, 
•34  S.  W.  690,  31 :  837 

276.  A  criminal  court  has  no  power  to  re- 
quire ballot  boxes  to  be  opened  for  the  in- 
spection of  the  grand  jury  under  Mo.  Const, 
art.  8,  §  3,  providing  that  elections  shall  be 
bj'  ballot,  the  ballots  numbered  in  order  op- 
posite the  names  of  voters,  and  the  elec- 
tion officers  sworn  or  affirmed  not  to  dis- 
close how  any  voter  shall  have  voted,  un- 
less required  to  do  so  as  witnesses  in  a 
judicial  proceeding,  provided,  that  in  con- 
tested elections  the  ballots  may  be  counted, 
compared  with  the  list  of  voters,  and  ex- 
amined under  such  safeguards  and  regula- 
tions as  may  be  prescribed  bv  law.  Ex 
parte  Arnold,  128  Mo.  256,  30  S.  "W.  768. 

33:386 

277.  The  expenditure  to  secure  the  nomi- 
nation and  election  of  a  candidate  of  more 
money  than  the  law  permits,  if  it  is  done 
without  his  knowledge  or  consent,  will  not 
avoid  his  election  under  the  Missouri  cor- 
rupt practices  act  of  1893.  State  ex  rel. 
Crow  V.  Bland,  144  Mo.  534,  46  8.  W.  440. 

41:  297 

278.  Procuring  the  withdrawal  of  a  candi- 
date, and  the  substitution  of  the  name  of 
the  candidate  of  another  party  as  the 
nominee  of  the  former  party  also,  although 
it  is  done  by  the  payment  of  money  and  by 
giving  other  valuable  inducements,  and  re- 
sults in  procuring  additional  votes  for  the 
fusion  candidate,  does  not  constitute  a 
bribery  of  voters  within  the  meaning  of  the 
Missouri  corrupt  practices  act  'of  1893.  Id. 
Municipal  elections. 

279.  Illegal  voting  at  a  village  election  is 
not  punishable  under  Xeb.  Crim.  Code,  §§ 
181,  182,  which  specify  only  a  "vote  in  any 
precinct  or  in  any  ward  of  a  citj',"  as  the 
word  "precinct"  does  not  include  a  village. 
State  V.  Cliichester,  31  Neb.  325,  47  N.  W. 
9.34,  11:104 

280.  Illegal  voting  at  municipal  elections 
is  within  Fla.  Rev.  Stat.  §  2787,  providing 
that  whoever  casts  an  illegal  vote  at  "any 
election"  in  the  state  held  according  to  law 
shall  be  punished.  Ex  parte  Senior.  37  Fla. 
1,  19  So.  652,  32:  133 
Intimidation  of  negro  voters. 

281.  No  punishment  can  be  inflicted  for 
violati(m  of  the  Federal  statute  declaring 
that  all  f|ualified  citizens  shall  have  a  right 
to  vote  at  all  elections  without  distinction 
of  race,  color,  or  previous  condition  of  servi- 
tude, unless  it  is  prescribed  bv  statute. 
Karem  v.  United  States,  57  C.  C.  A.  486,  121 
Fed.  2.50.  61 :  437 

282.  Legislation  authorized  by  U.  S.  Const. 
Amend.  15,  to  protect  the  elective  franchise 

I  must  be  addressed  to  state,  and  not  individ- 
ual, action,  unless  the  individual  assumes 
to  exercise  the  power  of  the  state.  Id. 

283.  Congress  cannot  punish  mere  lawless 
acts  of  individuals  in  preventing  colored  per- 


sons from  voting  at  purely  state  elections^ 

Id. 

284.  Appropriate  legislation  for  the  in- 
fringement of  U.  S.  Const.  Amend.  15,  pro- 
tecting the  elective  franchise  of  colored  citi- 
zens, is  not  found  in  U.  S.  Rev.  Stat.  §  5508, 
U.  S.  Comp.  Stat.  1901,  p.  3712,  which  pro- 
vides for  punishment  of  persons  who  shall 
conspire  to  injure  a  citizen  in  the  fi-ee  exer- 
cise of  any  riglits  secured  to  him  by  the 
Constitution  or  laws  of  the  United  States, 
since  it  is  not  limited  to  state  action,  which 
is  the  only  action  in  respect  to  such  fran- 
chise which  Congress  can  prohibit.  Id. 

285.  Congress  having  no  power  to  punish 
the  intimidation  of  voters  at  purely  state 
elections  where  the  conduct  is  not  grounded 
upon  race,  color,  or  previous  condition  of 
servitude,  U.  S.  Rev.  Stat.  §  5507,  U.  S. 
Comp.  Stat.  1901,  p.  3712,  which  provides  for 
the  punishment  of  everyone  who  prevents 
another  from  exercising  the  right  of 
suffrage  to  whom  the  right  is  guaranteed  by 
the  15th  Amendment,  is  void  in  its  applica- 
tion to  state  elections,  since  it  includes  with- 
in its  operation  offenses  not  grounded  upon 
race,  color,  or  previous  condition  of  servi- 
tude. Lackey  v.  United  States.  46  C.  C.  A. 
189,  107  Fed.*114,  53:  660 


TIL  Nominations;    Primaries;  Political  Com- 
mittees. 

Restricting  Vote  to  Nominee,  see  supra,  120,. 

121. 
Persons   and   Parties   Entitled   to   Place   on 

Ballot,  see  supra,  125-137. 
Nominees    of    More    than    One    Party,    see^ 

supra,  140-142,  144-146. 
Validity  of  Contract  to  Influence  Action  of 

Convention,  see  Contracts,  489. 
Power  of  Courts,  see  Coiirts,  92,  94. 
Judicial  Notice  as  to,  see  Evidence,  37. 
Sale  of  Liquor  on  Day  of,  see  Intoxicating- 

Liquors,  141,  142. 
Title  of  Statute  as  to,  see  Statutes,  219. 
See  also  supra,  106. 
For  Editorial  Notes,  see  infra,  V.  §  8. 

Nominating   conveations. 
See  also  infra.  318. 

,  286.  A  nomination  by  a  political  club  can- 
not be  recognized  as  that  of  a  county  con- 
vention when  the  participants  did  not  con- 
sider themselves  a  convention,  and  the 
minutes  kept  were  those  of  the  club^  and 
there  had  been  no  call  or  notice  of  a  con- 
vention nor  any  election  of^.  delegates,  and 
no  primaries  had  l*een  heid»»«State  ex»i:eL^_ 
Russell   V.    Tooker,    IS    Mont.   .540,   46   Pac. 

530,  ' '-*"" 34 :  315   ' 

287.  Bv  the  use  of -the  word  "deleirate" 
in  Minn."  Gen.  Laws  1893.  chap.  4,  §§  31,  33, 
34.  the  lesrislature  did  not  intend  to  pro- 
hibit political  parties  from  holding  mass 
conventions  for  the  nomination  of  candi- 
dates for  office,  or  intend  to  require  the 
members  of  such  conventions  to  be  elected 
as  delegates  to  such  conventions  at  primar- 
ies or  caucuses,  ^lanston  v.  Mcintosh,  5ft 
:\linn.  .-)25,  00  N.  W.  072,  28:  605^ 


ELECTIONS,  III, 


111:T 


288.  The  decision  of  a  political  convention 
as  to  the  qualifications  of  its  own  mem- 
bers is  conclusive  upon  the  courts.  Stephen- 
son V.  Boards  of  Election  Conirs.  118  Mich. 
nm,  76  JSr.  W.  914,  42:  214 

280.  The  right  of  a  political  convention 
making  nominations  to  judge  of  the  elec- 
tion, qualification,  and  returns  of  its  own 
members,  will  be  recognized  by  the  court 
in  passing  on  the  right  of  nominees  to  appear 
on  election  ballots;  and  the  right  or  title 
of  delegates  admitted  to  the  convention  will 
not  be  inquired  into.  Marcum  v.  Ballot 
Comrs.  42  W.  Va.  263.  2(i  S.  E.  281,      36:  296 

290.  The  final  determination  of  a  political 
convention  as  to  the  nomination  of  a  candi- 
date, or  any  other  question  witlii*!  its  juris- 
diction, will  be  followed  by  the  courts. 
Phillips  v.  Gallagher,  73  Miiin.  528,  76  N. 
W.  28.5.  42:  222 

291.  A  ballot  taken  at  a  political  conven- 
tion, giving  one  candidate  a  majority,  may 
be  declared  irregular  by  the  convention  on 
a  report  by  the  tellers  of  an  excess  of 
votes;  and  a  new  ballot,  taken  without  fraud 
or  oppression,  by  which  a  person  who  was 
not  voted  for  on  the  first  ballot  is  nomi- 
nated, will  be  upheld  by  the  courts.         Id. 

292.  The  power  of  a  party  convention 
cannot  be  forestalled  or  in  any  manner  limit- 
ed or  curtailed  by  the  executive  committee 
in  calling  the  convention.  Hutchinson  v. 
Brown,  122  Cal.  189,  54  Pac.  738,        42:  232 

293.  The  determination  of  the  right  of 
contesting  delegations  to  vote  in  the  or- 
ganization of  a  political  convention  cannot 
be  made,  against  the  will  of  the  conven- 
tion, by  the  chairman  of  the  political  com- 
mittee who  called  the  convention  to  order, 
although  he  is  acting  under  a  direction  of 
a  majority  of  that  committee.  Stephenson 
v.  Boards'of  Election  Corars.  118  Mich.  396, 
76  X.  W.  914,  42:  214 

294.  The  violation  of  pledges  or  sacrifices 
of  party  interests  by  members  of  a  political 
convention  in  making  a  nomination  or  adopt- 
ing a  plan  of  fusion  will  not  justify  the 
secretary  of  state  in  refusing  to  file  a  cer- 
tificate of  nominations  made  by  the  conven- 
tion. Hutchinson  v.  Brown,  122  Cal.  189, 
54  Pac.  738,  42:232 

295.  The  desire  to  prevent  bloodshed  is 
not  a  sufficient  excuse  to  justify  delegi»tes 
to  a  convention  of  a  prominent  political 
party  in  refusing  to  attend  the  meeting  (u-- 
ganized  by  the  central  committee.  State 
ex  rel.  Howells  v.  Metcalf,  18  S.  D.  393,  100 
y.  W.  923,  -67:  331 

296.  Delegates  are  not  justified  in  refus- 
ing to  attend  the  convention  organized  by 
the  central  committee  of  a  political  party 
because  there  are%?ontesting  delegations,  and 
the  central  committee  is  favoiable  to  Ihe 
oppofiing  faction.  Id. 
Regularity  of  convention. 

297.  A  county  convention  whose  nominees 
will  have  a  right  to  appear  on  an  official 
ballot  cannot  be  held  by  twenty-one  persons 
coming  from  but  one  fourth  of  the  precincts 
in  the  county,  who  met  and  assumed  to  form 
a  new  party  without  any  credentials  or  elec- 
tion as  delegates,  or  any  call  for  a  conven- 


tion, or  any  notice  except  by  word  of  mouth.. 
State  ex  rel.  Metcalf  v.  Johnson,  18  Mont^ 
548,  46  Pac.  533,  34:  313 

298.  A  state  convention  nominating  candi- 
dates will  not  be  ix'cognized  so  as  to  permit 
the  names  of  the  nominees  to  appear  on  an 
oflicial  ballot  when  it  was  held  by  only 
twenty-one  persons  repr«'senting  only  one 
fourth  of  the  precincts  of  a  single  county, 
who  met  without  any  call  for  a  convention, 
or  any  notices  given  except  by  word  of 
mouth,  or  any  election  as  delegates,  or  any 
credentials,  and  immediately  assumed  to 
form  a  new  party  and  organize  themselves 
into  a  county  convention  and  then  on  the 
same  evening  into  a  state  convention.       Id. 

299.  That  faction  of  a  county  convention 
which  assembles  at  the  place  designated  by 
the  chairman  and  a  majority  of  the  county 
committee,  organizes,  and  proceeds  to  nomi- 
nate candidates,  must  be  regarded  as  the 
regular  representative  of  the  |>arty,  in  the 
absence  of  anything  which  justifies  delegates 
in  refusing  to  attend  at  the  jjlace  selected. 
State  ex  rel.  Howells  v.  Metcalf,  18  S.  D. 
393,  100  N.  W.  923,  67:3^31 

300.  Which  of  two  or  more  bodies  of  vot- 
ers claiming  to  be  the  convention  con- 
templated by  Cal.  Pol.  Code,  §§  1186,  1187,. 
is  the  true  one,  must  be  determined,  in  the 
first  instance  at  least,  by  the  registrar  to 
whom  certificates  of  nomination  are  present- 
ed for  filing;  and  the  mere  fact  that  a  cer- 
tificate is  in  due  form  is  not  in  itself  con- 
clusive as  to  his  duty  to  file  it.  ]McDonald 
v.  Hinton,  114  Cal.  484,  46  Pac.  870,   35:  152 

301.  The  regularity  of  a  political  con- 
vention held  by  either  faction  of  a  party, 
wlien  two  factions  nominate  candidates  and 
certify  their  nominations  to  the  secretary 
of  the  state,  will  not  be  inquired  into  by 
him,  but  he  will  certify  the  names  of  the 
candidates  nominated  by  each  convention,, 
to  the  several  county  clerks.  Phelps  v. 
Piper,  48  Neb.  724.  07  N.  W.  755,  33:  53 

302.  Which  of  the  two  opposing  factions 
of  a  political  party  is  its  true  represen- 
tative is  not  a  matter  for  determination  by 
the  county  officers  whose  duty  it  is  to  con- 
sider objections  to  certificates  of  nomina- 
tion and  nomination  papers,  and  such  of- 
ficers cannot  exclude  from  the  oflicial  bal- 
lot candidates  nominated  by  a  convention 
of  either  faction  when  dulj'  and  regularly 
certified  to  the  county  clerk  in  the  manner 
pointed  out  by  statute.  Sims  v.  Daniels. 
57    Kan.    552.    46    Pac.    952.  :55:  146 

303.  The  regularity  of  either  of  the  tick- 
ets nominated  by  the  separate  divisions  of 
a  split  convejition  caimot  be  determined  by 
election  commissioners  in  preparing  ballots, 
but  Ihey  must  print  thereon  the  names  of 
both  sets  of  candidates,  and  give  for  each 
set  the  party  name  as  certified  by  the 
committee  presenting  it;  without  addition 
or  distinctive  designation.  Shields  v.  .Jacob. 
88  :Micb.  I(i4,  50  X.  W.  105.  13:  760 
Nomination    by    petition. 

.■!04.  Nominations  cannot  be  made  by  a 
petition  filed  with  a  ooimty  clerk  and  re- 
corder so  as  to  entitle  the  names  of  thfr 
nominees     to    be     placed    upon     an    ofTiciat 


1114 


ELECTIONS,  III. 


ticket  as  candidates  of  a  party.  State  ex 
rel.  Russell  v.  Tooker,  18  Mont.  540,  46 
Pac.   530,  34:315 

305.  The  pledge  required  of  each  singer 
of  a  nomination  paper  by  Ohio  act  April  8, 
1898,  §  7,  that  he  will  support  the  candidate 
<jr  candidates  whose  nominations  are  there- 
in requested,  does  not  infringe  the  right 
of  suffrage  as  guaranteed  by  the  Constitu- 
tion. State  ex  rel.  Plimmer  v.  Poston,  59 
■Ohio  St.  122,  52  X.  E.  196.  43:  90 
Nomination  by  committee. 

306.  Xominations  by  a  self -constituted 
<?ounty  committee  of  an  alleged  party  can- 
not be  made  so  as  to  appear  on  an  official 
ticket  when  no  power  has  been  delegated 
to  such  committee  by  any  convention  of 
Ihe  partv.  State  ex  rel.  Russell  v.  Tooker^ 
18  Monti:  540,  46  Pac.  530,  34:  315 

307.  Power  to  nominate  a  candidate  for 
office  may  be  conferred  upon  a  committee 
by  a  duly  assembled  convention  of  a  polit- 
ical party,  and  the  candidate  named  by  the 
I'ommittee  may  be  entitled  to  a  place  on  the 
official  ballot  as  if  nominated  by  the  con- 
vention on  compliance  with  the  provisions 
of  the  election  law.  White  v.  Sanderson, 
74  Minn.  118,  76  N.  W.  1021,  42:  231 

308.  Tlie  validity  of  a  nomination  made 
by  a  chairman  of  the  state  committee  of  a 
political  party  with  100  associates,  to  fill 
vacancies  in  the  list  of  presidential  electors 
nominated  in  the  same  manner,  when  not  in 
violation  of  statute,  cannot  be  contested  by 
the  committee  of  an  entirely  distinct  politi- 
cal partv.  State  ex  rel.  Blydenburgh  v. 
Burdick,'6  Wyo.  448,  46  Pac.  854,  34:  845 
Certificate  of  nomination. 
Discrimination  between  Nominees  of  Dif- 
ferent Parties,  see  supra,  171. 

Refusal  to  File,  see  supra,  294. 
Injunction  against,  see  Injunction,  248. 
Prohibition  against,  see  Prohibition,  3. 

309.  A  certificate  of  nomination  executed 
liy  the  cliairman  and  secretary  of  a  commit- 
tee which  has  been  authorized  by  a  political 
convention  to  make  a  nomination  is  suf- 
ficient to  satisfy  Minn.  Gen.  Stat.  §  38, 
without  being  executed  by  the  presiding 
officer  and  secretary  of  the  convention. 
White  V.  Sanderson,  74  Minn.  118,  76  N.  W. 
1021,  42:231 

310.  The  failure  of  a  certificate  of  nomi- 
nation to  specify,  as  reqxiired  by  statute, 
the  business  address  of  the  candidate  and 
the  chairman  and  secretary  of  the  commit- 
tee who  make  the  certificate,  is  not  ma- 
terial wheiP  it  states  the  names,  address, 
a.nd  business  of  each,  and  the  business  ad- 
dress of  each  is  in  fact  the  same  as  the 
address  given  for  him  in  the  certificate. 
Stackpole  v.  Ilallahan,  10  ]\Iont.  40,  40  Pac. 
80,  28:  502 

311.  All  the  provisions  of  ilie  Australian 
ballot  law  are  not  mandatory  to  the  extent 
of  invalidating  an  election  if  some  detail  as 
tn  the  nominating  certificate  is  omitted,  al- 
though they  may  be  mandatory  in  a  direct 
proceeding  to  enforce  them.  Id. 

312.  An  election  in  which  the  voters  have 
fully,  fairly,  and  honestiv  expressed  their 
will,  is  not  invalid  under  the  ^fontana  Aus- 


tralian ballot  law  of  March  13,  1889,  be- 
cause the  certificate  of  nomination  of  the 
successful  candidate,  who  was  selected  to 
fill  a  vacancy,  did  not  show  that  fact  or  the 
fact  that  the  committer  nominating  him 
had  power  to  fill  the  vacancy,  or  because 
no  declination  of  the  person  previously 
nominated  was  filed,  where  the  officer  with 
whom  the  certificates  were  filed  had  never 
been  notified  of  any  previous  nomination, 
and  the  committee  in  fact  had  full  power  to 
fill  the  vacancy.  .  Id. 

313.  The  exclusion  from  the  signers  of  a 
certificate  of  electors  to  nominate  candi- 
dates by  Wyo.  Laws  1890,  chap.  80,  §  89, 
of  those  persons  who  have  joined  in  a  cer- 
tificate nominating  other  candidates  for  the 
same  office,  does  not  apply  to  persons  who 
have  participated  in  the  nomination  of  other 
persons  through  primaries,  but  only  those 
who  have  joined  in  nominations  by  cer- 
tificate. State  ex  rel.  Blydenburgh  v. 
Burdick,  6  Wyo.  448,  46  Pac.  854.        34:  845 

314.  Neither  the  party  appellation  nor  the 
names  of  the  presidential  and  vice  presiden- 
tial candidates  added  thereto  by  authority 
of  law  and  properly  appearing  in  the  certifi- 
cate of  nominations  made  under  Kan.  Sess. 
Laws  1893,  chap.  78,  §  6,  can  be  omitted  by 
the  secretary  of  state  from  his  certificate  of 
such  nominations  to  the  county  clerks  under 
§  13.  Breidenthal  v.  Edwards,  57  Kan.  332. 
46  Pac.  469,  34:  146 

315.  Agreements  made  by  the  candidates 
and  committees  of  opposing  factions  of  a 
political  party  providing  for  a  settlement  of 
their  differences,  and  for  a  determination  of 
the  question  as  to  which  set  of  candidates 
is  entitled  to  a  place  on  the  official  ballot, 
and  to  the  use  of  a  party  name,  cannot  be 
considered  by  county  officers  whose  duty  it 
is  to  consider  objections  to  certificates  of 
nomination  and  nomination  papers,  for  the 
purpose  of  excluding  candidates  duly  certi- 
fied by  either  faction  as  the  nominees  of  the 
party.  Sims  v.  Daniels,  57  Kan.  552,  46 
Pac.  952,  35:  146 
Primary  elections. 

316.  The  legislature  may  recognize  the 
existence  of  political  parties,  and  within 
reasonable  limits  regulate  the  means  by 
which  partisan  voters  shall  be  protected  in 
exercising  individual  preferences  for  party 
candidates.  State  ex  rel.  McCarthy  v. 
Moore,  87  Minn.  308,  92  N.  W.  4,     59:  447 

317.  A  deprivation  of  the  right  to  par- 
ticipate in  the  selection  of  candidates  for 
office  is  a  deprivation  of  the  right  of  fran- 
chise. Britton  v.  Board  of  Election  Comrs. 
129  Cal.  337,  61  Pac.  1115,  51:  115' 

318.  The  denial  to  a  political  party  which 
cast  less  than  3  per  cent  of  the  vote  at  the 
next  preceding  election,  of  the  right  to  the 
privileges  and  protection  accorded  to  other 
political  parties  by  the  California  primarv 
election  law  of  March  3,  1899  (Stat.  1899. 
p.  47),  and  thereby  prohibiting  the  members 
of  such  party  from  holding  a  nominating 
convention,  is  a  deorivation  of  the  richt  of 
franchise  .and  a  violation  of  the  constitu- 
tional risrhts  under  Cal.  Const,  art.  1,  §  10, 
giving   them   the    right   to   freelv   assemble 


ELECTIONS,  IV. 


1115 


together  to   consult   for  the   common   good.  1 
«etc,,  §  21,   providing  for  equality  of  privi- 
leges  and   immunities,   and    §    11,   requiring 
laws  of  a  general  nature  to  liave  a  uniform 
operation.  Id. 

319.  A  primary  election  provided  for  by 
statute  is  an  election  "authorized  by  law." 
within  the  meaning  of  Cal.  Const,  art.  2, 
§  1,  prescribing  the  qualifications  of  elec- 
tors at  all  elections  authorized  by  law. 
Spier  V.  Baker,  120  Cal.  370,  52  Pac.  659. 

41:  196 

320.  The  power  of  the  legislature  to  re- 
quire an  o5th  of  a  bona  fide,  present  inten- 
tion to  support  the  nominees  selected  by  the 
delegates  there  elected,  as  a  test  of  the  right 
to  vote  at  a  primary  election.  p||esents  a 
matter  demanding  most  serious  considera- 
tion, but  is  not  decided  in  this  case.  Id. 

321.  The  restriction  of  the  right  to  vote 
at  the  primary  elections  by  Cal.  act  March 
13,  1897,  §  22,  to  those  whose  names  ap- 
pear, upon  the  great  or  precinct  registers, 
or  the  supplements  thereto,  used  at  the  last 
general  election,  is  unconstitutional,  as  it 
excludes  various  classes  of  electors  who 
liave  a  constitutional  right  to  vote.         Id. 

322.  The  qualifications  as  to  residence  of 
voters  at  primary  elections  prescribed  by 
Cal.  act  March  13,  1897,  do  not  comply 
with  the  Constitution,  as  the  only  condition 
they  provide  is  thirty  days'  residence  in  the 
county  prior  to  the  election,  Avhereas  the 
Constitution  requires  residence  in  the  state 
for  one  year,  in  the  county  ninety  days,  and 
in  the  precinct  thirty  days,  and  that 
naturalized  citizens  must  have  been  such 
ninety    days.  Id. 

323.  Permitting  voters,  without  regard  to 
1heir  party  affiliations,  to  vote  at  a  primary 
election  under  Cal.  act  March  3,  1899  (Stat. 
1899,  p.  47),  for  delegates  to  the  political 
convention  of  any  party  that  ho  chooses  to 
select,  whether  he  is  a  member  of  that 
party  or  not.  or  ever  intends  to  become  a 
member  of  it,  gives  an  opportunity  for  the 
disruption  and  destrucfion  of  a  political 
party  by  its  opponents,  and  constitutes  a 
violation  of  the  reserved  rights  of  the  peo- 
ple, which,  it  is  provided  by  Cal.  Const,  art. 
1.  §  23,  shall  not  be  impaired  or  denied  by 
the  enumeration  of  rights  declared.  Brit- 
ton  V.  Board  of  Election  Comrs.  129  Cal. 
t}37.  01  Pac.  111. -5.  51:  115 
Political   committees. 

Nominations  bv.  see  supra.  .306-308. 
Power    over    Nominating    Convention,    see 

supra.  292.  293. 
Injunction    against    Adding   Names    to.    see 

Injunction.  253. 

324.  A  county  committee  of  a  political 
party  has  no  power  to  remove  one  of  its 
members  under  N.  Y.  Laws  1898,  chap.  179, 
providinsr  that  there  must  be  a  county  com- 
mittee for  such  party,  and  that  its  mem- 
bers shall  be  elected  for  the  term  of  one 
year  at  the  primary  election  proAided  br 
statute.  People  ex  rel.  CoflFev  v.  Democratfc 
Ccneral  Committee.  164  X.  Y.  3.35.  58  X.  E. 
124.  51:674 

325.  Hules  of  a  county  committee  of  a 
g)olitical  party  authorizing  the  expulsion  of 


a  member  cannot  be  operative  after  the 
enactment  of  X.  Y.  Laws  1898,  chap.  179, 
which  provides  for  the'  election  of  the  mem- 
bers of  such  committee  for  a  term  of  one 
year,  and  authorizes  the  committee  to  make 
rules  not  contrary  to,  or  in  contravention 
of.  the  statutes,  though  it  declares  that 
rules  previously  adopted  shall  continue  in 
force  until  new  ones  are  adopted,  since  this 
provision  is  subject  to  the  condition  that 
the  rules  are  in  conformity  with  the  stat- 
ute. Id. 


IV.  Contests. 

Recount,  see  supra,  268,  269. 

Record  on  Appeal,  see  Appeal  and  Error, 
173. 

Review  of  Finding  on,  see  Appeal  and  Error, 
784,    785. 

Jiu'isdiction  as  to,  see  Courts,  258. 

Review  of  Legislative  Determination  on, 
see  Courts,  169. 

Municipal  Power  to  Create  Court  to  Hear, 
see  Courts,  253. 

Presumption  and  Burden  of  Proof  on,  see 
Evidence,  214,  390,  614-617. 

Ballots  as  Best  Evidence  on,  see  Evidence, 
779-781. 

Admissibility  of  Ballots  on,  see  Evidence, 
1020.    1021. 

Admissibility  of  Declarations  of  Voters,  see 
Evidence,  1554. 

Suflficiencv  of  Proof  on,  see  Evidence,  2311- 
2313.' 

Effect  of  Governor's  Death  Pending,  see 
Governor.  6. 

Contest  by  Quo  Warranto,  see  Quo  War- 
ranto, T.  b. 

Special  Proceeding  imder  Corrupt  Practice 
Act,  see  Quo  Warranto.  2. 

Xecessity.  of  Alleging  that  Contestant  Re- 
ceived Majority  of  Votes  Cast,  see  Quo 
Warranto.  34. 

Refusal  to  Testify  as  to  Vote,  see  Wit- 
nesses. 130. 

For  Editorial  Xotes.  see  infra.  V.  §  7. 

326.  The  county  judge  sitting  in  term 
time  in  his  legular  capacity  as  the  county 
court  has  jurisdiction,  under  the  Colorado 
act  of  1885,  to  try  contested-election  cases 
of  county  officers,  lirown  v.  Vailes,  16 
Colo.  462.'  27  Pac.  945.  14:  120 

327.  The  procedure  under  Xeb.  Const,  art. 
5,  §§  4.  15.  and  Xeb.  Comp.  Stat.  chap.  26. 
§  77,  for  the  contest  of  the  election  of  exec» 
utive  oflicers,  applies  to  the  case  of  a 
eovernor  and  lieutenant  governor  who  have 
already  qualified  and  entered  upon  their 
duties,  as  well  as  to  all  other  executive  of- 
ficers. Re  Election  of  Executive  Officers. 
31  Xeb.  262.  47  X.  W.  923.-  10:  803 

.328.  A  statute  giving  the  right  to  contest 
the  election  of  county  officers  and  precinct 
officers  excludes  by  implicfition  the  right  to 
eontest  the  election  of  municipal  officers. 
Fawcett  v.  Pritchard.  14  Wash.  604,  45  Pac. 
23,  33:  674 

329.  The  right  to  hold  over  in  an  office 
cannot  be  considered  in  an  election  conte.ot 


1116 


ELECTIONS,   IV. 


pure  and  simple.     Allen  v.  Glj'nn.  17  Colo. 
■SAH,  29  Pac.  670,  _  15:  743 

:j."}0.  Xo  one  but  an  elector  can  contest  an 
ilfction  in  Montana.  Gillespie  v.  Dion,  18 
Mont.  18;}.  44  Fac.  954.  33:  703 

Election  fraud  or  crime  as  ground. 

.3.31.  TliP  fact  that  a  systematic  plan  to 
coerce  a  class  of  citizens  to  vote  a  particular 
ticket  at  a  certain  election  was  formed  and 
carried  out,  consisting  of  the  manifestation 
i)f  a  spirit  of  intolerance  towards  those  who 
I'xpresscd  a  determination  to  vote  some 
other  ticket,  the  use  of  the  influence  of 
the  church,  threats  of  o.stracism  from  so- 
ciety, and  indignities  falling  short  of  in- 
timidation.— is  not  sufficient  to  avoid  the 
('lection.  -Tones  v.  Glidewell,  53  Ark.  161, 
13  S.  W.  723.  7:  831 

3.32.  The  privilege  of  secrecy  is  inherent 
in  the  constitutional  guaranty  of  a  vote  by 
ballot:  and  if  a  plan  for  coercing  voters  by 
requiring  them  to  disclose  the  contents  of 
their  ballots  to  the  bystandei-s  is  so  gener- 
ally carried  out  as  to  render  the  result 
iloubtful,  the  candidate  for  whose  benefit 
such  plan  was  devised  must  purge  the  poll 
of  its  effect,  or  suffer  the  penalty  of  having 
the  favorable  majority  cast  thereat  ex- 
cluded   from   his   counting   of   votes.  Id. 

.333.  The  fact  that  some  of  the  ballots 
«-ast  at  an  election  were  stolen  before  they 
were  counted,  leaving  a  majority  in  favor 
of  a  candidate  who  received  a  certificate 
of  election  on  the  faith  thereof,  will  not 
entitle  his  opponent  to  the  office  unless  he 
establishes  his  right  thereto  upon  the 
strength  of  his  own  title;  and  he  will  not 
l)e  injured  by  the  burglary  if  he  is  permit- 
led  to  pro\'e  by  secondary  evidence  the  con- 
tents of  the  election  returns.  Id. 
Time;  adjournment, 
rime  for  Appeal  in.  see  Appeal  and  Error, 

140. 
F.ffect  of  Sundav  on  Time  for  Contest,  see 
Time.  22,  24. 

334.  The  term  "canvass"  in  Dak.  Comp. 
Laws,  g  1480.  requiring  notice  of  a  contest 
of  election  within  twenty  days  after  can- 
vass of  the  votes,  includes  a  decision  by  lot 
of  a  tie  vote,  as  provided  by  S.  D.  Laws 
)8!tO.  diap.  84.  §  26:  and  notice  within 
Mvcntv  davs  after  such  decision  is  sufficient. 
BoNvlf-r  V.  Ki^enhood.  1  S.  D.  577,  48  N.  W. 
1.30.  12:  705 

335.  The  twenty  days'  limitation  of  the 
lime  "to  adjourn  or  continue  the  trial"'  of 
an  election  t-ontest  \inder  Ind.  Rev.  Stat. 
1881.  5;  47(>1.  begins  when  the  board  has  first 
i-oiivcneil  and  orjranized  to  enter  upon  the 
investigation,  although  the  trial  does  not 
be"in  at  that  time.  English  v.  Dickey.  128 
Tnd.    174,   27    X.   K.   495.  13:40 

33f;.  The  adjoiirnment  of  an  election  con- 
te-t  at  t)n'  request  of  the  contestor.  to  a 
ilnv  Ix'vond  the  time  limited  by  statute  for 
the  invest  illation,  absolutely  discontinues 
ilic  proceeding,  and  even  the  consent  of  the 
i.artie-:  f-annot   keep  it   alive  longer.  Id. 

Pleadings;    statement. 

.337.  A  petition  in  a  proceeding  under  the 
Mi-<onri  corrupt  practices  act  of  March  31, 


1893,  by  the  attorney  general  on  the  appli- 
cation of  the  defeated  candidate,  is  demur- 
rable if  it  does  not  clearly  state  charges 
which  are  made  actionable  by  the  act,  al- 
though it  alleges  that  the  defendant  is 
usurping  the  office.  State  ex  rel.  Crow  v. 
Bland,  144  Mo.  534,  46  S.  W.  440,        41 :  297 

338.  ilere  averment  of  belief  by  a  defeat - 
ea  candidate  for  election  to  an  office,  that 
a  recount  of  votes  will  show  a  majority  for 
him,  is  not  sufficient  to  give  the  court  juris- 
diction of  the  proceedings,  but  he  must 
particularize  the  fact  from  which  he  draws 
his  conclusion.  Gillespie  v.  Dion,  18  Mont. 
183,  44  Pac.  954,  33:  703 

339.  In  a  special  statutory  proceeding  for 
contesting  an  election,  to  maintain  which, 
under  the  statute  the  contestant  must  be  an 
elector,  an  omission  from  the  record  of  any 
averment  to  show  that  he  is  an  elector  will 
be  fatal.  Id. 

340.  The  failure  of  a  contestant  to  file  a 
statement  sufficient  to  show  his  own  eligi- 
bility to  a  disputed  office  will  not  prevent 

I  relief  to  the  extent  of  annulling  the  cer- 
I  tificate  of  election  of  the  opposing  candi- 
j  date,  wiio  has  been  illegally  declared  elect- 
j  ed.  Rutledge  v.  Crawford,  91  Cal.  526,  27 
I  Pac.  761,  13:  761 

341.  An  omission  to  state  in  a  contest  of 
election  to  the  office  of  state's  attorney, 
that  plaintiff  was  learned  in. the  law,  which 
is  a  constitutional  qualification  for  the  of- 
fice, will  be  cured  by  an  allegation  in  the 
answer  that  plaintiff  was,  at  the  time  of 
the  election,  the  legally  qualified  and  act- 
ing state's  attornev.  McMahon  v.  Polk, 
10  S.  D.  296,  73  N.  W.  77,  47:  83(^ 

342.  An  amendment  of  the  statement  of 
a  contestant  of  an  election  may  be  made  to- 
show  his  eligibilitj',  after  the  cause  has 
been  remanded  from  an  appellate  court. 
Rutledge  v.  Crawford,  91  Cal.  526,  27  Pac. 
761,  13:  761 

343.  A  statement  in  an  election  contest, 
which  fails  to  aver  contestant's  qualifica- 
tion to  maintain  the  proceeding,  cannot  be 
amended  to  supply  the  omission  after  the- 
lapse  of  the  time  which  the  statute  allows- 
for  the  commencement  of  the  proceeding. 
Gillespie  v.  Dion,  18  Mont.  183,  44  Pac.  954, 

33:  im 

344.  Amendments  so  radical  as  to  vir- 
tually initiate  a  contest  of  election  cannot 

j  be  made  to  a  statement  which  really  speci- 

j  fied  no  grounds  at  all,  after  the  expiration- 

;  of    the    time    allowed    by    statute    for    the 

1  commencement   of   the   proceedings.  Id. 

I       .345.  Where    contestants     specify    certain 

districts  in   which   they   allege   frauds    were 

committed,   and   the   whole   election   records 

and  register  lists  of  the  count\'  are  put  in 

evidence    by    defendant    under    his    defense 

]  that  all  votes  cast  in  the  county  were  legal. 

I  the    court    may    adjudge    tlie    illegality    of 

I  votes,  on  the  request  of  contestants,  in  elec- 

j  tion  districts  not  mentioned  in  the  petition. 

iRe    Cusick's    Appeal,    130    Pa.    4.19.    20   Atl. 

574.  10    22SS 


ELECTIONS,  V.  (Ed.  Kotes,) 


1117 


V.  Editorial  Notes. 
a.  Voters. 

^  I.  Generally;   right  to  vote. 

2vature  of  right  of  sufirage;  powers  of 
states  in  respect  to 
suffrage.     1:  111." 

J*ower  to  modify  or  take  away  right.  1 : 
112.* 

Elective  franchise  as  affected  by  14th 
Amendment.     8:  337.* 

Effect  of  first  section  of  15th  Amendment 
on  elective  franchise.  8: 
337.* 

Right  to  vote  as  a  privilege  or  immunity  of 
citizen  of  United  States. 
14:  580. 

Right  of  women  to  vote.     21:  662. 

•Qualification  of  voters.     7:99;*  8:337.* 

Payment  of  poll  taxes  as  a  qualification  of 
electoi-s.     29:414. 

Registration  laws;  validitv  and  construc- 
tion.    8:  337;*   10:  224.* 

Rights  of  voters  to  be  registered.     7 :  99.* 

Acquiring  residence  as  a  voter  while  attend- 
ing school  or  public  insti- 
tution. 23:  215. 
Inmates  of  soldiers'  homes,  or  occu- 
pants of  government 
posts.  23:215. 
Inmates   of   almshouses   and    hospitals. 

23:215. 
Students.     23:  215. 

night  to  vote  as  a  qualification  of  grand 
juror.     28:  196. 

§  3.  How  far  right  to  vote  is  absolute. 

^  Jenerally.     25 :  480. 

As   affected   by   acts   of   Congress.     25:  480. 

Registration.     25:  480. 

Tax  or  property  qualification.     25:  482. 

Soldiers   voting.     25:  482. 

Test  oaths  and  disqualification  for  crime. 
25:  48:J. 

Ballots  and  primaries.     25:  484. 

•Other  statutory  conditions,  restrictions,  and 
qualifications.     25:  484. 

b.  Election;    nomination. 

§  3.  Generally. 

Election  as  distinguished  from  appointment. 
15:  106. 

Judicial   notice   with   respect   to.     4:  38.* 

First  and  last  days  in  computing  time  of 
elections.     49:  244. 

Validity  of  apportionment  of  election  dis- 
tricts.    15:  561. 

Interference  with  election  districts  by  an- 
nexation of  territory  to 
municipality.     27:  744. 

-Statutes  restricting  the  vote  of  an  elector 
to  less  than  all  when  sev- 
eral officers  are  to  be  cho- 
sen for  the  same  office. 
33:  141. 

Bribery  of  voters.     5:217.* 

Compensation  of  supervisor  of  elections. 
10:  224.* 

f  4.  Federal  control  of. 

"Existence,  sources,  and  extent  of  power. 
53:  660. 


E.xistence.     53:  660. 
Sources.     53:  662. 
Extent.     53:663. 

Congressional   elections.      53:  663. 
Other  elections.     53:  664. 
Requiring    state    officers    to    obey 
state  laws.     53:  666. 
Under  U.  S.  Const,  art.  1.     .53:  667. 
Under  U.  S.  Const,  art.  2.     53:  608. 
Under  14th  Amendment.     53:  668. 
Under    15th   Amendment.     53:668. 
Summary   of    present   statutes.     5.'!:  671. 
§  5.  Ballots;  ballot  boxes. 
Form  of  ballot.     10:  150.* 
Irregularities    in    taking   ballots.     16:  754. 
Power  of  courts  to  require  ballot  boxes  to 
be  produced  or  opened  in 
proceedings      other      than 
election  contests.     33:  386. 
§  6.  Marking  ofScial  ballot. 
V'aliditv  and  construction  of  law.     47:  806. 
Official'  marks.     47 :  808. 
General  rule.     47 :  808. 
Printer's  marks.     47:808. 
Failure  to  indorse  ballot.     47:  808. 
Erroneous  or  mistaken  marking  of  bal- 
lot by  official.     47 :  810. 
Correction  of  errors.     47:  812. 
Voter's  marks.     47:  812. 

Failure  to  indicate  intent.     47:  814. 
Failure  to  use  cross.     47:  815. 
Imperfect  cross.     47:  815. 
Device  other  than  cross.     47:  810. 
Blots.     47 :  819. 

Superfluous  liens  or  marks.     47:  820. 
Distinguishing  marks.    13:761;  47: 

820. 
Harmless  marks.     47:  824. 
Mark  with  wrong  implement.     47:  826. 
Mark  in  wrong  place.     47:  827. 
On  back  of  ballot.     47:  827. 
Out  of  square.     47:  827. 
On  wrong  side  of  name.     47:  832. 
Xot  opposite  candidate's  name.  47: 
833. 
Conflicting   marks.     47:834. 
Alteration  of  ballot.     47:  839. 
Erasure  of  names.     47:839. 
Addition  of  names.     47:841. 
Attempted  erasure  of  vote  mark.     47: 

843. 
Partial   failure  to  vote.     47:  844. 
§  7.  Canvassing;  deciding  results;  contests. 
Voting  for  the  same  person  for  incompati- 
ble offices.     12:  125.* 
Rule  for  determining  when  a  proposition  is' 

carried.     6:  308.* 
Election     contests.     5:403;*     7:831:*     12: 

705;*  13:40.* 
Notice    to    contestee.     12:  705.'* 
Decision  of  tie  vote  at  election.     47:  551. 
In  the  absence  of  statutorv  provisions. 

47:554. 
Statutory   prOA'isions    applicable   to   tie 
vote.     47:  .554. 
General   statement  as  to.     47 :  5.54. 
Decision    by    lot.     47:  5.54. 

Constitutionality       and       con- 
struction.    47:  554. 
Effect  of,  on  contest  and  right 
to  contest.     47:  559. 


1118 


ELECTORS— ELECTRICITY,  IL 


Casting  vote  by   presiding   officer, 

47:  561. 
Appointment  or  election  on  failure 
to  elect  or  to  fill  vacancy. 
47:  563. 
§  8.  Nominations. 
Defects   in   nomination   papers.     16:  754, 


ELECTORS. 


In  General,  see  Elections. 
Presidential  Electors,  see  Presidential  Elec- 
tors. 


ELECTRICAL   USES   AND   APPLIANCES. 
See  Electricity. 

♦-•-♦ 

ELECTRIC    COMPANY.         • 

Condemnation  of  Land  by,  see  Eminent  Do- 
main, 96a. 

Taxation  of,  see  Taxes,  110-113,  205,  257- 
261. 

See  also  Electricity;  Electric  Lights;  Elec- 
tric Railways. 


ELECTRICITY. 


I.  Municipal  Regulation  of. 
II.  Conflicting    Rights    of    Different    Com- 
panies. 
III.  Injuries  Resulting  from. 

a.  Negligence  of  Party  Producing. 

b.  Contributory  Xegligence  of  Person 

Injured. 
IV.  Editorial  Notes. 

Electrocution  as  Cruel  and  Unusual  Punish- 
ment, see  Criminal  Law,  210,  211. 

Right  to  Extend  Wires  across  Private  Al- 
ley, see  Easements,  85,  86. 

Ejectment  against  Maintenance  of  Electric 
Light  Poles  in  Street,  see  Ejectment, 
33. 

Electric     Lights,     Generally,     see     Electric 
Lights. 
v       Electric  Railways,  see  Electric  Railways. 

Generation  and  Distribution  of,  as  a  Public 
Purpose  within  Power  of  Eminent  Do- 
main, see  Eminent  Domain,  93-96. 

Consequential  Injury  by  Poles  and  Wires  in 
Street,  see  Eminent  Domain,  372,  373. 

Poles  and  Wires  as  Additional  Servitude, 
see  Eminent  Domain,  396,  403-416,  and 
also  infra,  IV.  §  1. 

Electric  Railroad  as  Additional  Servitude, 
see   Eminent   Domain,   440-453. 

Judicial  Notice  as  to,  see  Evidence,  69-71. 
111. 

Right  to  Maintain  Poles  and  Wires  in  Hiah- 
way,  see  Ilighwavs,  8.3-94;  Telegraphs. 
1-.3.  and   also  infrn,  IV.   §   1. 

Compelling  Removal  of  Poles,  see  Injunc- 
tion, 51. 


Motive   Po\ver,   Injunction   against,   see   In- 

jimction,  17,  31. 
As   Motive   Power   of  Street   Railway,   see 

Street  Railways,  71-74,  76-78. 
Taxation   of   Electric  Company,   see  Taxes^ 

110-112,  205,  257-261. 
Subway    for    Electric    Wires,    see    Subway^ 

4-7. 
Right  to  Appropriate  Water  for  Generation 

of,  see  Waters,  330. 


I.  Municipal  Regulation   of. 

For  Editorial  Notes,  see  infra,  IV,  §  2, 

1.  An  ordinance  prohibiting  the  suspen- 
sion of  electric  wires  over  or  upon  the 
roofs  of  buildings  is  within  the  legitimate 
police  powers  of  a  city,  where  such  suspen- 
sion of  these  wires  is  extremely  dangerous, 
both  as  being  liable  to  originate  fires,  and 
as  obstructing  the  extinguishment  of  firea 
otherwise  originated.  Electric  Improv.  Co. 
V.  San  Francisco,  45  Fed.  51>3,  13:  131 

2.  Public  officers  may  be  authorized  by 
ordinance  to  remove  dangerous  electric 
wires  suspended  over  or  upon  the  roof  of 
buildings,  where  the  owners  fail  to  do  so- 
after  notice  to  remove  them.  Id. 

3.  The  only  power  of  regulation  impliedly 
reserved  by  a  city  on  giving  to  a  telegraph 
company  or  other  such  corporation  its  con- 
sent that  electric  wires  may  be  laid  under 
the  streets  is  such  regulation  as  the  safety 
and  welfare  of  the  public  may  demand, 
where  the  corporation  derives  its  power  to- 
place  wires  under  ground  from  the  state, 
subject  only  to  the  consent  of  the. munici- 
pality. State  ex  rel.  St.  Louis  Underground 
Service  Co.  v.  Murphv,  134  Mo.  548,  31  S. 
W.  784,  34  S.  W.  51,  35  S.  W.  1132,    34:  36* 


II.  Conflicting    Rights    of    Different    Com- 
panies. 

4.  In  the  present  state  of  electrical 
science  a  telephone  companj-  cannot  main- 
tain a  bill  for  an  injunction  against  the 
operation  of  an  electric  railway,  to  prevent 
damages  incidentally  sustained  by  the  es- 
cape of  electricity  from  its  rails.  Cumber- 
land Teleph.  &  Teleg.  Co.  v.  United  Electrie 
R.  Co.  42  Fed.  273,  12:  544 

5.  A  telephone  company  which  has  ob- 
tained a  franchise  to  use  a  street,  upon  the 
express  condition  that  it  shall  not  obstruct 
or  interfere  with  the  enjoyment  of  the  fran- 
chises of  a  street  railway  company,  cannot 

j  have  an  injunction  against  the  use  of  the 
single-trolley  propulsion  by  the  street  car 
:  company,  although  the  electricity  thereby 
I  discharged  into  the  ground  interferes  with 
j  the  operation  of  the  telephone  line,  where 
I  this  could  be  avoided  only  by  a  complete 
I  change  of  the  street-railway  system  and 
t  the  use  of  motors  which  are  more  ex- 
I  pensive,  more  dangerous,  and  less  useful  and 
eOicient.  Hudson  River  Teleph  Co.  v. 
I  Waiervliet  Tump.  &  R.  Co.  135  N.  Y.  .393, 
32  N,  E.   148.  17:  674 


ELECTRICITY,  III.    a. 


lll» 


6.  Interference  with  the  ground  circuit  of 
a  telephone  system  by  the  subsequent  intro- 
duction of  the  "single-trolley  system"  of 
electric  street  railways,  of  which  the  ground 
also  is  a  constituent  part,  interferes  with 
no  vested  right  of  the  telephone  company, 
and  gives  it  no  right  of  action.  Cincinnati 
Inclined  Plane  R.  Co.  v.  Citv  &  S.  Teleg. 
Asso.  48  Ohio  St.  390,  27  N.  E.  890,     12:  534 

7.  A  telephone  company  cannot  recover 
for  loss  sustained  from  induction  on  ac- 
count of  parallel  wires  of  an  electric  rail- 
way company,  where  a  provision  of  the 
statute  authorizing  the  construction  of  the 
lolephone  line  prohibits  its  obstructing  the 
ordinary  use  of  the  street.  ^Cumberland 
Teleph.  &  Teleg.  Co.  v.  United  t:iectric  R. 
Co.  93  Tenn.  492,  29  S.  W.  104,  27:  236 

8.  The  destruction  of  the  use  of  a  tele- 
phone plant  with  a  ground  circuit,  which 
made  no  injurious  disturbance  of  natural 
electric  conditions  anywhere,  caused  by  con- 
duction resulting  from  the  operation  of  a 
single  trolley  street  car  line  which  charged 
the  earth  for  half  a  mile  on  each  side  with 
powerful  currents  of  electricity,  makes  the 
street  railway  company  liable  for  the  cost 
of  return  wires  for  the  telephone  line  as  a 
substitute   for  the  ground   circuit.  Id. 

9.  Disturbance  of  a  telephone  system  pre- 
viously established,  the  poles  and  wires  of 
which  are  upon  the  streets,  by  the  inti'oduc- 
tiOn  of  electro-motive  power  upon  a  street 
railway,  entitles  the  telephone  company  to 
no  remedy  except  to  readjust  its  methods 
to  meet  the  new  conditions.  Cincinnati  In- 
clined Plane  R.  Co.  v.  City  &  S.  Teleg.  Asso. 
48  Ohio  St.  390,  27  X.  E.  890,  12:  534 

10.  An  electric  light  company  which  has 
put  up  poles  and  wires  in  streets,  under  con- 
tract with  a  municipal  corporation,  and  con- 
veys so  low  a  current  of  electricity  for 
lights  that  the  wires  can  be  safely  handled 
even  when  charged,  may  have  an  injimction 
against  another  company  which,  under  a 
subsequent  contract,  erects  poles  and  wires 
carrying  a  dangerous  current  so  near  the 
former  as  to  interfere  with  their  safe  use. 
Rutland  Electric  Light  Co.  v.  Marble  City 
Electric  Light  Co.  65  Vt.  377,  26  Atl.  635, 

20:  821 

11.  The  unnecessary  conflict  of  poles  and 
wires  of  a  trolley  railway  company  with 
those  of  a  prior  existing  telephone  plant  to 
the  damage  of  the  latter  makes  the  railway 
company  liable  for  the  cost  of  necessary 
changes  made  by  the  telephone  company. 
Cumberland  Teleph.  &  Teleg.  Co.  v.-  I'nited 
Electric  R.  Co.  93  Tenn.  492,  29  S.  W.  104. 

27:236 


III.  Injuries  Resulting  from. 

a.  Negligence  of  Party  Producing. 

Injury  to  Passenger,  see  Carriers,  243-245; 
Evidence,    2249. 

Presumntion  and  Rurden  of  Proof  as  to,  see 
Evidence,    IT.    h,    1,    6. 

Proximate  Cause  of  Iniury  by,  see  Proxi- 
mate Cause.  IT.  b;  IT.  c. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 


12.  The  care  demanded  of  .electric  com- 
panies must  be  commensurate  with  the  dan- 
ger, and  where  the  wires  carry  a  higlily 
dangerous  current  of  electricity,  the  law 
requires  the  utmost  degree  of  care  in  the 
construction,  inspection,  and  repair  of  tht^ 
wires  so  as  to  keep  them  harmless  at  places 
where  persons  are  liable  to  come  in  contact 
with  them.  Perham  v.  Portland  General 
Elec.  Co.  33  Or.  451,  53  Pac.  14.  40:  79» 

13.  A  corporation  which  contracts  to  light 
a  building  by  electricity  undertakes  to  pro- 
tect its  occupants  from  injury  bj'  the  elec- 
trical current,  so  far  as  it  can  do  so,  by 
exercising  the  highest  degree  of  care,  skill, 
and  diligence  in  the  construction  and  main- 
tenance of  its  plant.  Alexander  v.  Nanti- 
coke  Light  Co.  209  Pa.  571,  58  Atl.  1068, 

67:475 

14.  The  liability  of  electric  light  com- 
panies for  injuries  received  from  posts, 
wires,  or  other  apparatus,  is  not  affected  by 
Mass.  Stat.  1883,  chap.  221,  granting  to  such 
companies  the  right  to  lay  and  maintain 
wires  subject  to  municipal  regulations. 
Hector  v.  Boston  Electric  Light  Co.  161 
Mass.  558,  37   N.  E.   773,  25:  554 

15.  The  use  of  the  same  poles  by  a  tele- 
phone company  and  an  electric  railroad  com- 
pany, at  the  request  of  the  municipal  au- 
thorities, is  not  unlawful  when  it  is  not 
shown  to  be  necessarily  attended  with  in- 
creased danger.  Bergin  v.  Southern  New 
England  Teleph.  Co.  70  Conn.  54,  38  Atl.  888. 

39:  192 

Negligence  as  to  wires  generally. 

Presumption  as  to,  see  Evidence,  517,  518. 

Opinion  P]vidence  as  to  Injury  bv,  see  Evi- 
dence,  1293. 

Evidence  as  to  Generally,  see  Evidence. 
1922. 

Evidence  as  to  Other  Shocks,  see  Evidence, 
1966,  1967. 

SuflUciency  of  Proof  of,  see  Evidence,  2262- 
2264. 

Variance  in  Proof  as  to,  see  Evidence,  2414. 

Proximate  Cause  of  Injury  by,  see  Proxi- 
mate Cause,  50. 

Question  for  Jury  as  to,  see  Trial,  466-473. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

16.  Placing  electric  wires  known  to  be 
dangerous  at  a  place  where  others  are  law- 
fully entitled  to  be  constitutes  negligence. 
Perliam  v.  Portland  General  Elec.  Co.  33  Or. 
451,  53   Pac.    14,  40:  799 

17.  An  electric  light  company  may  be 
guilty  of  actionable  negligence  in  failing  to 
take  proper  steps  to  receive  information 
concerning  the  condition  of  its  wires,  as  well 
as  in  not  repairing  them  within  a  reasonable 
time  after  receiving  notice  of  their  bad  con- 
dition. Mitchell  V.  Charleston  Light  &  P. 
Co.  45  S.  C.  146,  22  S.  E.  767,  31:577 

18.  The  owner  of  electric  wires  carrying  a 
dangerous  current  is  chargeable  with  negli- 
gence in  stringing  them  over  a  bridge  so 
near  the  top  of  it  that  it  is  impossible  to 
make  repairs  on  the  bridge  without  coming 
'n  contact  with  them.  Perham  v.  Portland 
General  Elec.  Co.  33  Or.  451,  53  Pac.  14, 

40:  799 


1120 


ELECTRICITY,  III.  a. 


Insulation. 

Presumption  of  Negligence  as  to,  see  Evi- 
dence, 514,  515. 

Defects  in,  as  Proximate  Cause  of  Injury, 
see  Proximate  Cause,  53-55. 

Question  for  Jurv  as  to.  see  Trial,  469.  470. 

See  also  infra,  34,  37,  46,  59-63,  66,  68,  69, 
73. 

19.  The  failure  of  an  electric  lighting 
•company  to  have  the  "splices"  on  its  wires 

perfectly  insulated,  as  required  by  the  city 
ordinance,  constitutes  negligence.  Clements 
V.  Louisiana  Electric  Light  Co.  44  La.  Ann. 
692,  11   So.  51,  16:  43 

20.  A  corporation  which  generates  and 
sends  electricity  into  the  wires  of  a  street 
railway  company  is  chargeable  with  the 
duty  to  see  that  such  wires  are  properly 
insulated;  and  it,  as  well  as  the  street  rail- 
way company,  is  liable  for  failure  to  per- 
form that  duty,  if  a  person  is  killed  because 
(he  wires  are  not  properly  insulated. 
Thomas  v.  Mavsville  Gas  Co.  108  Kv.  224, 
.-,6  S.  W.  153.    ■  53:  147 

21.  It  is  the  absolute  duty  of  an  electric 
light  company  conveying  electricity  by  over- 
head wires  strung  through  the  streets  of  a 
city,  to  keep  its  wires  constantly  insulated 
so  as  to  be  prepared  to  guard  against  the 
effect  of  objects  coming  in  contact  with 
them,  regardless  of  the  facts  and  causes 
which  may  bring  about  the  contact, 
llebert  v.  Lake  Charles  Ice  L.  &  W.  Co.  Ill 
La.  522.  35  So.  731,  64:   101 

22.  Providing  insulation  sufficient  to  with- 
stand lightning  which  mav  strike  the  wires 
is  not  within  the  obligation  of  an  electric 
lighting  company  in  carrying  its  wires  into 
u  building  for  the  lighting  of  which  it  has 
contracted  to  furnish  electricitv.  Phoenix 
TJght  &  Fuel  Co.  v.  Bennett  (Ariz.)  74  Pac. 
4S.  63:219 

23.  The  utmost  care  is  necessary  to  keep 
ihe  insulation  of  dangerous  electric  wires 
perfect  at  a  place  where  people  have  the 
right  to  go  for  work,  business,  or  pleasure, 
although  very  great  care  may  be  sufficient 
as  to  wires  at  other  places.  McLaughlin  v. 
Louisville  Electric  Light  Co.  100  Kv.  173,  37 
S.  W.  851,  34:  812 

24.  The  duty  of  insulating  electric  light 
wires  running  on  the  outside  of  a  building 
is  owed  to  every  person  who,  for  purposes 
of  business,  is  rightfully  upon  the  premises, 
(iriffin  V.  I'nited  Electric  Light  Co.  104 
Mass.  492,  41  X.  E.  075,  32:  400 

25.  An  electric  light  company  using  wires 
rharged  with  a  dangerous  current  owes  a 
legal  duty,  irrespective  of  any  contractual 
relation,  toward  every  jjcrson  who.  in  the 
('xercise  of  a  lawful  occupation  in  a  i)lace 
where  he  has  a  legal  right  to  be.  is  liable 
1o  come  in  contact  with  tlte  wires,  to  see 
1  hat  its  wires  are  properly  placed  with  ref- 
•■rence  to  the  safety  of  such  persons,  and 
are  properlv  insulated.  Ibown  v.  Edison 
Klec.  lllum.Co.  90  Md.  400,  45  Atl.  182, 

40:  745 

26.  An  electric  light  company  maintain- 
ing wires  upon  the  same  pole  with  other 
companies  is  bound  to  know  that  linemen  of 
the  other  companies   may  come   in  contact 


with  its  wires,  and  must  use  due  care  in 
insulating  such  wires.  Newark  Electric 
Light  &  P.  Co.  v.  Garden,  23  C.  C.  A.  649, 
39  U.  S.  App.  416,  78  Fed.  74,  37:  725 

27.  An  electric  light  company  is  charged 
with  knowledge  of  an  abrasion  from  y^  inch 
to  2  inches  in  extent  in  the  insulation  of 
one  of  its  wires,  where  it  has  existed,  to 
the  knowledge  of  individuals,  for  at  least 
two  vears.  Mitchell  v.  Raleigh  Electric  Co. 
129  N.  C.  166,  39  S.  E.  801,  55:  398 

28.  The  lack  of  reasonable  care  to  keep 
electric  light  wires  insulated  is  not  excused 
by  reason  of  the  fact  that  mere  contact 
with  such  wires  is  not  dangerous  unless 
other  conditions  exist  in  view  of  the  cir- 
cumstances likely  to  occur  which  may  ren- 
der the  contact  dangerous.  Illingsvvorth  v. 
Boston  Electric  Light  Co.  161  Mass.  583,  37 
N.  E.  778,  25:  552 

29.  The  fact  that  the  insulation  of  dan- 
gerous electric  wires  is  very  expensive  or 
inconvenient  is  no  excuse  for  failure  to 
make  such  insulation  perfect  at  points 
where  people  have  the  right  to  go  for  work, 
business,  or  pleasure.  McLaughlin  v.  Louis- 
ville Electric  Light  Co.  100  Ky.  173,  37  S. 
W.   851,  34:  812 

30.  The  fact  that  a  telephone  company 
may  have  strung  its  wires  above  those  of 
an  electric  light  company  already  in  po- 
sition, without  taking  any  steps  to  guard 
against  the  coming  in  contact  of  the  wires 
of  the  two  companies  at  the  crossing  points, 
and  that  in  stringing  its  wires  it  did  so,  so 
negligently  and  loosely  that  one  of  them 
fell,  in  a  storm,  upon  an  uninsulated  wire 
below,  causing  it  to  burn  and  fall  on  the 
street, — is  no  excuse  to  the  electric  light 
company  for  not  having  performed  its  duty 
to  keep  its  own  wires  properly  insulated, 
and  to  take  special  precautions  to  guard 
against  the  increased  danger  caused  by  the 
telephone  wires  being  strung  above  them. 
Hebert  v.  Lake  Charles  Ice  L.  &  W.  Co.  Ill 
La.  .522,  35  So.  731,  64:  101 
Guard  wires. 

Mandamus  to  Compel  Duty  as  to,  see  Man- 
damus,  115. 
Question  for  Jury  as  to,  see  Trial,  467. 
See  also  supra.  30:   infra,  52.  53. 
For  Editorial  Notes,  see  infra.  IV.  §  3. 

31.  An  electric  i-ailway  company  main- 
taining a  trolley  wire  charged  with  a  dan- 
gerous current  without  guard  wires  between 
it  and  an  insecure  telejihono  wire  over  it. 
and  negligently  permitting  the  telephone 
wire  to  remain  suspended  over  the  trolley 
wire  after  it  has  fallen  upon  it.  cannot  es- 
cape liability  by  showing  how  other  trolley 
wires  are  erected  and  maintained  by  pru- 
dent and  well-managed  electric  railway 
companies.  McKav  v.  Sotithern  Bell  Teleph. 
&  Teleg.  Co.  Ill  Ala.  337.  19  So.  695,  31:  .589 

32.  The  lack  of  guard  wires  between  trol- 
ley wires  and  telenhone  wires  will  render  a 

i  trolley  company  liable  for  injury  to  a  per- 
j  son  in  a  street  by  contact  with  a  broken 
I  tf'le'ihone  wire  lying  across  the  trolley  wire, 
I  if  the  omission  of  the  guard  wires  was 
negligent  and  was  also  the  proximate  cause 


ELECTRICITY,  III.  a. 


1121 


•of  the  injury.     Block  v.  Milwaukee  Street 
R.  Co.  89  Wis.  371,  Gl  N.  W.  1101,        27:  365 

33.  An  ordinance  requiring  guard  wires 
for  electric  wires  "whenever  it  shall  be 
necessary  to  cross"  other  electric  wires,  ap- 
plies to  crossing  wires  already  erected,  since 
It  provides  a  remedy  for  an  existing  evil. 
State  ex  rel.  Wisconsin  Teleph.  Co.  v.  Janes- 
ville  Street  R.  Co.  87  Wis.  72,  57  N.  W. 
1)70,  22:  759 

34.  An  electric  railroad  company  iising 
strong  currents  of  electricity  on  wires  which 
ure  not  insulated,  which  directly  cross  tele- 
phone wires  which  are  insulated,  may  be 
eompelled  to  place  guard  wires  where  they 
will  prevent  the  contact  of  the.  telephone 
and  railway  wires  in  case  of  the' breaking 
of  poles  or  the  falling  of  w'ires  on  account 
of  storms  or  otherwise, — especially  where 
there  is  an  ordinance  requiring  such  guard 
wires,  which  the  telephone  company  has 
•complied  with.  Id. 
Injury  by  wires  in  streets. 
Presumption  as  to  Negligence,  see  Evidence, 

•217.  519-525. 
Evidence  of  Negligence,  see  Evidence,  1888, 

2265. 
Proximate  Cause  of  Injury,  see  Proximate 

Cause,   56. 
Question  for  Jury  as  to,  see  Trial,  127,  353. 
Instructions  as  to,  see  Trial,  834-837. 
See  also  supra,  31-34;   infra,  51-53. 
For  E<Htorial  Notes,  see  infra,  IV.  §  3. 

35.  The  care  exercised  to  prevent  the  es- 
•cape  of  a  dangerous  current  of  electricity 
from  wires  suspended  over  streets  in  popu- 
lous cities  or  towns  must  be  commensurate 
"with  the  great  danger  that  exists,  although 
the  owners  of  such  wires  are  not  insurers 
against  accidents.  City  Electric  Street  R. 
Co.  V.  Conery,  61  Ark.  381,  33  S.  W.  426, 

31:570 

36.  A  grant  of  the  privilege  to  encumber 
the  public  highway  with  poles  and  electric 
wires  which,  though  insulated,  carry  a 
■deadly  current,  imposes  upon  those  having 
such  privilege  the  duty  of  so  managing  af- 
fairs as  not  to  injure  persons  lawfully  on 
the  streets,  and  of  making  the  street  sub- 
stantially as  safe  for  them  as  it  was  be- 
fore. Western  U.  Teleg.  Co.  x.  State  use  of 
Nelson.  82  Md.  293,  33  Atl.  763,  31:  572 

37.  Maintaining  an  uninsulated  wire 
heavily  charged  with  electricity  upon  a  reel 
fastened  to  an  electric  light  pole  in  a  street, 
so  near  the  ground  as  to  be  within  easy 
reach  of  a  pedestrian,  is  a  gross  neglect  of 
duty  to  the  public.  Suburban  Electric  Co. 
X.  Nutrent  (N.  .7.  Err.  &  App.)  58  N.  .7.  L. 
658,  34  Atl.   1069,  32:  700 

38.  A  wire  of  an  electrical  company,  de- 
tached from  the  poles  and  lying  in  the 
streets  of  a  town,  is  out  of  place,  and  tho-^o 
having  control  of  it  and  charged  with  the 
legal  duty  of  taking  dwe  care  of  it  have 
the  luirden  of  accounting  for  its  being  found 
in  that  condition  and  situation,  and  to  show 
that  it  was  not  due  to  its  negligence. 
Ilebert  v.  I^ake  Charles  Ice,  L.  &  W.  Co.  Ill 
1a.  .522.  35  So.  731.  64:  101 

39.  An  electric  light  company  is  not  re- 
lieved   from    liibijitv    for   injuries   bv    wires 

7..R  A.  Dig.— 71. 


broken  by  a  storm,  unless  it  was  one  which 
could  not  reasonably  have  been  anticipated. 
Boyd  v.  Portland  General  Electric  Co.  40  Or. 
126,  66  Pac.  576,  57:  619 

40.  The  breaking  of  a  live  electric  wire 
which  falls  to  the  ground  and  causes  the 
death  of  a  person  touching  it  does  not  ren- 
der the  owner  liable,  if  it  was  due  entirely 
to  accident  which  no  reasonable  human  care 
could  prevent.  Snyder  v.  Wheeling  Elec- 
trical Co.  43  W.  Va.  661,  28  S.  E.  733, 

39:499 

41.  A  telephone  company  which,  instead 
of  removing  its  wire  on  taking  it  out  of  a 
residence,  leaves  it  hanging  upon  an  elec- 
tric light  company's  pole,  is  bound  to  look 
after  it,  and  is  liable  for  an  injury  to  a 
traveler  w'ho  comes  in  contact  with  it  after 
it  has  been  removed  by  employees  of  the 
electric  light  company  and  hung  upon  a. 
telephone  pole,  where  he  accidentally 
touches  it  while  it  is  chai-ged  by  contact 
with  an  electric  light  wire  or  a  street  rail- 
way company's  wire.  Ahern  v.  Oregon 
Teieph.  &  Teleg.  Co.  24  Or.  276.  33  Pac. 
403,  22:  635 

42.  It  is  negligence  to  allow  a  wire  which, 
from  its  environment,  is  liable  to  become 
chargetl  with  electricity,  to  hang  over  a 
street  or  sidewalk  at  such  a  height  as  to 
obstruct  and  endanger  ordinary  travel.     Id, 

43.  The  escape  of  electricity  from  wires 
suspended  over  streets,  through  any  other 
wires  that  may  come  in  contact  with  them, 
must  be  prevented  so  far  as  it  can  be  done 
by  the  exercise  of  reasonable  care  and  dili- 
gence. City  Electric  Street  R.  Co.  v.  Con- 
ery, 61  Ark.  381,  33  S.  W.  426,  31:  570 

44.  Injury  caused  by  electricity  generated 
by  a  thunder  storm  in  a  telephone  wire 
which  is  negligently  allowed  to  hang  across 
a  highway  so  low  that  a  traveler  comes  in 
contact  with  it  in  the  dark  renders  the  tele- 
phone company  liable,  as  the  wire  furnished 
the  means  by  which  the  dangerous  force 
was  communicated  and  the  injury  caused. 
Southwestern  Teleg.  &  Teleph.  Co.  v.  Robin- 
son. .50  Fed.  810,  1  C.  C.  A.  684,  2  U.  S.  App. 
205.  16:  545 
Wires  on  buildings. 

See  also  infra,  69. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

45.  Placing  electric  light  wires  over  the 
metallic  roof  of  a  hotel,  where  persons  may 
come  in  contact  with  them,  without  raising 
them  high  enough  to  prevent  such  contact, 
is  sufficient  proof  of  negligence  in  case  of 
injury  to  a  person  by  an  electric  shock 
from  such  wires.  Oiraudi  y.  Electric  Im- 
prov.  Co.  107  Cal.  120,  40  Pao.  108,      28:  596 

46.  An  electric  light  company  allowing 
its  standard  for  the  support  of  wires  on  the 
roof  of  a  building  to  be  used  by  a  telegraph 
and  telephone  company  for  its  wires  also, 
does  not  thereby  assume  any  duty  to  em- 
ployees of  the  latter  company  in  respect  to 
the  safe  insulation  of  the  electric  liffht  wires 
over  the  roof  of  an  adjoining  building  to 
which  no  wires  of  any  kind  are  attached, 
and  on  which  they  have  no  right  to  go  by 
reason  of  permission  to  use  the  standard  on 
the     former     Imildinir.     Hector     v.     Boston 


1122 


ELECTRICITY.  111.  a. 


Electric  Light  Co.   161   Mass.  558,  37  N.  E. 
773,  25:  554 

47.  Attaching  a  telephone  wire  to  a  flag- 
staff on  a  barn,  without  the  owner's  con- 
sent or  knowledge,  and  leaving  it  connected 
only  with  a  pole  on  another  building,  ren- 
ders one  liable  for  the  burning  of  the  barn 
by  lightning  conveyed  by  the  wire  from 
the  pole  on  the  other  building.  Jackson  v. 
Wisconsin  Teleph.  Co.  88  Wis.  243,  60  N. 
W.  430,  26:  101 

48.  That  a  stroke  of  lightning  is  an  act 
of  God  does  not  relieve  a  person  from  lia- 
bility for  the  burning  of  a  building  by  light- 
ning conveyed  thereto  over  a  wire  by  which 
he  has  negligently,  and  without  the  owner's 
knowledge  or  consent,  connected  it  with  a 
flagstaff  on  another  building.  Id. 

49.  A  telephone  company  having  reason- 
able grounds  to  apprehend  that  lightning 
will  be  conducted  over  its  wires  into  a  house 
where  it  maintains  an  instrument  under 
contract  with  a  subscriber,  and  there  do  in- 
jury to  persons  or  property,  must  exercise 
due  care  in  selecting,  placing,  and  maintain- 
ing, in  connection  with  its  wires  and  in- 
struments, such  known  and  approved  appii- 
acea  as  are  reasonably  necessary  to  guard 
against  such  accidents.  Griffith  v.  Xew 
England  Teleph.  &  Teleg.  Co.  72  Vt.  441.  48 
Atl.  643,  52:  919 
Municipal  liability. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

50.  The  liability  of  a  city  for  neglect  of 
its  duty  to  exercise  care  and  supervision 
over  electric  wires  suspended  over  its  streets 
is  not  lessened  by  the  fact  that  individuals 
or  corporations  are  subjected  to  a  like  duty 
and  liability.  Mooney  v.  Luzerne,  186  Pa. 
161,  40  Atl.  311,  _  40:  811 

51.  A  telegraph  wire  across  a  highway, 
hanging  so  low  as  to  cause  an  injury  to  a 
traveler,  is  a  defect  for  which  the  town  is 
liable,  if  it  had,  or  ought  to  have  had, 
notice  thereof.  Hayes  v.  Hyde  Park,  153 
Mass.  514.  27  N.  E.  522,  12:249 
Joint  liability. 

For  Editorial  Notes,  see  infra,  IV.  §  3. 

.52.  A  telephone  company  and  an  electric 
railway  company  are  jointly  liable  for  neg- 
ligence when  both  maintain  their  wires  with 
knowledge  of  the  danger  caused  by  the  want 
of  guard  wires  between  the  trolley  wire  and 
a  telephone  wire  insecurely  suspended  over 
it,  and  especially  when  they  permit  a  bro- 
ken telephone  wire  to  remain  su^^pendod 
across  the  trollev  wire.  McKay  v.  Southern 
Bell  Teleph.  &  Teleg.  Co.  Ill  Ala.  337.  19 
So.  695,  31:  589 

53.  A  telephone  company  is  not  excused 
for  negligence  in  the  maintenance  of  a  wire 
insecurely  fastened  above  a  dangerous  trol- 
ley wire,  because  the  railroad  company  was 
chargeable  with  the  duty  of  maintaining 
;^uard  wires  between  the  electric  wires,  and 
failed    to    do    so.  ,     Id. 

Injury  to  licensees  or  employees. 
Delegation    of   Duty   as   to   Safe   Condition, 

see  Master  and  Servant,  446. 
See   also   supra.   26,   40:    infra,   67;    Master 

and  Servant,  103.  14.3. 
For  Editorial  Notes,  see  infra,  IV.  §  3. 


54.  Reasonable  care  to  keep  electric  wirese- 
in  a  safe  condition  is  due  by  an  electric  light 
company  to  persons  expressly  or  impliedly 
licensed  to  approach  them  in  performing 
their  duties  with  reference  to  other  electric 
wires  attached  to  structures  of  the  electric 
light  company.  Illingsworth  v.  Boston 
Electric  Light  Co.  161  Mass.  583,  37  N.  E. 
778,  25:  55^ 

!  55.  Reasonable  care  and  caution  in  the 
i  use  of  an  electric  current  by  a  street  rail- 
I  way  company  is  required  for  the  safety  of 
the  employees  of  an  electric  light  company 
which  is  engaged  by  the  railway  company 
to  move  electric  lamps  during  the  operation 
of  the  railway.  Huber  v.  La  Crosse  City  R. 
Co.  92  Wis.  636,  66  N.  W.  708,  31:  583 

56.  A  corporation  employing  a  wire 
charged  with  a  powerful  and  dangerous  cur- 
rent of  electricity,  which  by  contact  with 
the  wires  of  other  corporations' may  cause 
injury  or  death  to  employees  of  the  latter^ 
is  charged  with  the  duty  of  observing  at 
least  ordinary  diligence,  not  only  to  prevent 
such  contact,  but  also  to  discover  and  pre- 
vent its  continuance,  even  when  occasioned 
by  the  negligence  of  others,  including  that 
corporation  whose  employees  are  thus  ex- 
posed to  danger.  Atlanta  Consol.  Street 
R.  Co.  V.  Owings,  97  Ga.  663,  25  S.  E.  377, 

33:  798 

57.  The  coiling  of  a  trolley  wire  over  a 
span  wire  pending  continuation  of  the  line,, 
thereby  charging  the  span  wire  with  elec- 
tricity, is  not  negligence  which  will  render 
the  street  railway  company  liable  to  an  ex- 
perienced workman  familiar  with  such  wirea- 
and  their  insulation,  who  is  injured  by  con- 
tact with  the  span  wire  while  standing  on 
a  wooden  pole  moving  electric  lamps,  where 
the  span  wire  had  circuit  breaks  to  prevent 
its  charging  the  iron  posts  which  sustained 
it,  and  injury  from  it  could  be  sustained 
only  by  one  who  completed  the  circuit  be- 
tween it  and  the  iron  posts  by  touching 
them  both  at  the  same  time.  Huber  v.  La 
Crosse  City  R.  Co.  92  Wis.  636,  66  N.  W. 
708,  ,  31:583 

58.  A  master  who  carries  on  an  imminent- 
I3'  dangerous  undertaking — such  as  the 
ojeneration  and  distribution  of  electricity — • 
is  bound  to  know  the  character  and  extent 
of  the  danger,  and  to  notifj'^  the  same  to  the 
servant  specially  and  vinequivocally.  so  as 
to  be  clearly  imderstood  by  him.  Myhan  v. 
Louisiana  Electric  Light  &  P.  Co.  41  La. 
Ann.  964,  6  So.  799,  7:  172' 

59.  An  electric  light  company,  knowing 
that  employees  of  an  independent  con- 
tractor engaged  upon  work  for  it  are  to  be 
employed  upon  a  staging  in  close  proximity 
to  defectively  insulated  wires  which  some- 
times carry  a  dangerous  current,  is  bound 
to  use  at  least  ordinary  care  to  protect  them- 
from  harm  which  may  result  therefrom,, 
since  it  owes  them  the  same  duty  which  it 
owes  to  those  who  come  upon  the  property 
bv  its  invitation.  Stevens  v.  United  Gas  & 
Electric  Co.  73  N.  H.  159,  60  Atl.  848, 

70:  11» 

60.  An  electric  light  company  cannot  es- 
cape  liability   for   injuries  to   employees  of~ 


ELECTRICITY,  III.  b. 


1128 


an  independent  contractor  doing  work  for  it 
because  of  contact  with  defectively  insulat- 
ed wires  ca^rrying  a  dangerous  current, 
merely  because  the  work  could  be  done 
without  exposing  them  to  such  danger, 
where  such  exposure  might  reasonably  have 
been  apprehended  from  the  usual  method  of 
doing  the  work  contracted  for.  Id. 

gl.  The  fact  that  an  independent  con- 
tractor engaged  upon  work  for  an  electric 
lighting  company  erects  a  staging  so  near 
to  defectively  insulated  wires  as  to  be  dan- 
gerous to  employees  does  not  absolve  the 
company  owning  the  wires  from  the  duty 
of  exercising  care  to  prevent  the  employees 
from  being   harmed  thereby.      •  Id. 

62.  That  an  employee  woiking  upon  a 
staging  in  dangerous  proximity  to  defective- 
ly insulated  wires  carrying  a  dangerous  cur- 
rent came  in  contact  with  the  wires  as  the 
result  of  a  fall  not  due  to  the  fault  of  the 
one  maintaining  them,  does  not  render  the 
fall  an  independent  cause  of  accident,  so  as 
to  relieve  the  latter  from  liability,  if  acci- 
dents of  that  character  were  reasonably  to 
be  apprehended  from  the  situation  the  men 
were  in,  and  the  character  of  work  they 
were  doing.  Id. 

63.  An  employer  knowing  of  the  defect- 
ive insulation  of  a  crane  operated  by  an 
electric  motor,  whereby  there  is  a  leakage 
of  electricity  from  the  motor  to  the  hauling 
chain,  although  the  current  used  is  not  dan- 
gerous, must  be  held  liable  for  negligence 
in  permitting  employees  to  use  the  crane 
in  that  condition,  when  an  employee  is  in- 
jured in  consequence  thereof  by  a  danger- 
ous current  of  electricity  communicated  to 
the  chain  by  reason  of  some  contact,  out- 
side the  employer's  premises,  of  the  wire 
used  for  the  motor  and  some  other  wire 
carrying  a  dangerous  current.  Moran  v. 
Corliss  Steam  Engine  Co.  21  R.  I,  386,  43 
Atl.   874,  45:267 

64.  Failure  of  a  master  to  take  pre- 
cautions to  prevent  electric  wires  in  process 
of  being  strung  on  telephone  poles  from 
reels  from  coming  in  contact  with  a  trolley- 
feed  wire  charged  with  a  powerful  current, 
or  to  supply  his  employees  with  rubber 
gloves  or  other  devices  to  prevent  the  com- 
munication to  them  of  a  serious  shock  in 
case  the  wires  become  charged,  renders  him 
liable  for  injury  to  employees  attending 
the  reels  who  receive  a  severe  shock  by 
reason  of  one  or  more  of  the  telephone  wires 
coming  in  contact  with  the  trolley- feed  wire 
because  of  their  sagging  or  breaking.  Bnrns 
v.  Delaware  &  A.  Teleg.  &  Teleph.  Co.  (N.  J. 
Err.  &  App.)  70  N.  J.  L.  745,  59  Atl.  220, 
592,  67:  956 

65.  That  an  independent  contractor  en- 
gaged in  work  for  an  electric  company 
knows  of  the  bidden  danger  of  defectively 
insulated  wires  with  which  the  employees 
are  likely  to  come  in  contact  does  not  ab- 
solve the  company  owning  the  wires  from 
the  duty  of  usdng  care  to  protect  the  em- 
ployees from  such  danger,  since  the  duty  to 
have  the  premises  safe  is  nondelegable. 
Stevens  v.  United  Gas  &  Electric  Co.  73  N. 
H.  159,  CO  Atl.  848,  70:  119 


Injury  to  trespassers. 

66.  An  electric  light  company  is  not  bound 
to  keep  the  insula.tdon  of  its  wires  upon  a 
pole  in  good  condition  as  against  a  bare  vol- 
unteer or  mere  trespasser  who  intrudes  up- 
on such  pole.  Newark  Electric  Light  &  P. 
Co.  V.  Garden,  23  C.  C.  A.  649,  39  U.  S. 
App.  416,  78  Fed.   74,  37 :  725 

67.  An  employee  of  a  railroad  company 
rightfully  maintaining  wires  upon  a  pole 
owned  by  a  telegraph  company  and  also 
used  by  a  telephone  company  and  an  elec- 
tric light  company  is  not,  while  engaged  dn 
transferring  wires  of  the  railroad  company 
to  other  poles,  a  trespasser  in  setting  his 
foot  upon  a  cross-arm  bearing  the  electric 
light  wires,  so  as  to  relieve  the  electric 
light  company  from  liability  for  his  death 
occasioned  by  the  imperfect  insulation  of 
its  wires.  Id. 

68.  A  telephone  company  which  negligent- 
ly stretches  a  wire  over  the  roof  of  a  store 
porch  without  adequate  insulation  owes  no 
duty  to  a  passerby  who  takes  refuge  under 
the  roof  from  a  rain  storm;  hence  it  is  not 
liable  for  his  death  in  case  lightning  is  con- 
ducted by  the  wire  to  the  roof,  and  kills 
him  in  reaching  the  ground.  Cumberland 
Teleg.  &  Teleph.  Co.  v.  Martin,  116  Ky.  554, 
70   S.  W.  394,  63:469 

69.  Failure  to  insulate  electric  light  wires 
extending  across  a  street,  at  and  above  the 
point  where  they  were  fastened  to  a  wood- 
en awning  16  feet  above  the  level  of  the 
street,  does  not  render  the  electric  light 
company  liable  for  the  death  of  a  person 
by  contact  therewith  while  upon  the  awn- 
ing for  the  purpose  of  raising  the  wires  to 
permit  the  passage  thereunder  of  a  house 
which  he  was  engaged  in  moving,  where 
the  awning  was  not  used  as  a  place  of  re- 
sort, and  it  could  not  reasonably  have  been 
expected  that  anyone  would  ever  be  upon  it, 
and  the  height  at  which  the  wires  were 
strung  precluded  the  possibility  of  any 
traveler  upon  the  street  coming  'in  contact 
with  them.  Brush  Electric  Light  &  P.  Co. 
V.  Lefevre,  93, Tex.  604,  57  S.  W.  640, 

49:  771 
Testing  wires. 
See  also  infra,  84. 

70.  A  telephone  company  may  require  its 
lineman  to  inspect  and  test  for  himself  the 
guy  wires  or  circuit  breakers  of  an  electric 
railroad  company,  which  uses  the  same  poles 
that  are  used  by  the  telephone  company 
when  it  furnishes  him  with  suitable  appli- 
ances for  that  purpose,  and  he  knows  that 
there  are  no  other  persons  employed  to  do 
such  testing.  Bergin  v.  Southern  New  Eng- 
land Teleph.  Co.  70  Conn.  54,  38  Atl.  888, 

39:  192 

b.  Contributory    Negligence    of    Person    In- 
jured. 

Of  Passenger  on  Electric  Car,  see  Carriers, 

316. 
Presunuption  as  to,  see  Evidence,  597. 
Question  for  Jury  as  to,  see  Trial,  474-479. 
See  also  supra,  57. 
For  Editorial  Notes,  see  infra,  IV.  §  3, 


1124 


ELECTRICITY,  IV. 


71.  A  presumption  that  the  public  know 
enough  of  the  nature  of  electricity  to  avoid 
the  danger  is  not  created  by  the  mere  fact 
that  some  persons  use  that  agency.  Girau- 
di  V.  Electric  Improv.  Co.  107  Cal.  120,  40 
Pac.  108,  28:  596 

72.  A  person  whose  occupation  brings  him 
in  proximity  to  the  wires  of  an  electric 
lighting  company  has  a  right  to  believe  that 
the  wires  have  been  insulated  as  required 
by  an  ordinance.  Clements  v.  Louisiana 
Electric  Light  Co.  44  La.  Ann.  692,  11  So. 
51,  16:  43 

73.  The  apparent  perfect  insulation  of 
electric  wires,  which  is  calculated  to  deceive 
and  to  cause  one  unfamiliar  with  the  facts 
to  suppose  them  safe,  when  the  wires  are 
placed  where  persons  in  the  performance  of 
their  duties  may  come  in  contact  with  them, 
amounts  to  an  invitation  to  them  to  risk 
contact  therewith.  Perham  v.  Portland 
General  Elec.  Co.  33  Or.  451.  53  Pac.  14, 

40:  799 

74.  A  workman  engaged  in  repairing  a 
bridge  over  which  electric  wires  with  an  ap- 
parently safe  insulation  are  strung,  where 
he  must  come  in  contact  with  them  in  per- 
forming his  work,  has  a  right  to  assume 
that  contact  with  them  will  not  be  danger- 
ous,— especially  after  the  workmen  have 
made  an  examination  of  them  and  ascer- 
tained, as  they  suppose,  that  the  wires  are 
not  dangerous.  Id. 
In  street, 

75.  A  boy  ten  years  old  is  not  chargeable 
with  contributory  negligence  in  touching  a 
loose  guy  wire  hanging  from  a  pole  on  or 
near  a  sidewalk  carrying  electric  wires,  and 
which  is  in  fact  charged  with  a  deadly  cur- 
rent by  connection  with  the  feed  wire  of  a 
street  railwav  companv.  Haynes  v.  Raleigh 
Gas  Co.  114  N.  C.  203,  19  S.  E.  344,      26:  810 

76.  A  traveler  on  a  highway  who  stoops 
to  pick  up  and  throw  out  of  the  way  a 
loose  telephone  wire  which  is  hanging  so  as 
to  endanger  travelers  is  not,  as  matter  of 
law,  guilty  of  such  negligence  as  to  prevent 
him  from  recovering  against  the  city  for  the 
injury  received  from  the  wire,  which  is 
charged  with  electricity,  on  the  ground  that 
it  is  a  defect  in  the  highway.  Bourget  v. 
Cambridge,  156  Mass.  391,  31  X.  E.  390, 

16:  605 
On  building. 

Question  for  Jury  as  to,  see  Trial,  477. 
For  Editorial  Notes,  see  infra,  IV.  §  3. 

77.  A  person  going  on  a  roof  to  repair  it, 
where  an  electnc  light  wire  is  stretched  at 
such  a  height  that  the  chances  are  that  he 
will  come  in  contact  with  it  by  going  under 
it  or  by  stepping  over  it,  is  not  negligent 
in  attempting  to  pass  in  either  manner,  if 
he  exorcises  all  necessarj-  and  prudent  care 
in  proportion  to  the  danger.  Clements  v. 
Louisiana  Electric  Light  Co.  44  La.  Ann. 
692,  11  So.  51,  16:  43 

78.  One  who  is  ignorant  of  the  danger 
that  may  result  from  contact  with  electric 
light  wires  over  the  roof  of  a  building  in 
which  he  is  employed  is  not  required  to 
exercise  the  same  degree  of  care  that  would 


be  required  if  he  knew  the  danger.  Giraudi 
V.  Electric  Improv.  Co.  107  Cal.  120,  40  Pac. 
108,  28:  596 

79.  Touching  an  electric  light  wire  is  not 
negligence  as  a  matter  of  law,  when  touched 
by  a  tinsmith  on  the  outside  of  a  building, 
who  does  not  know  that  an  electric  light 
wire  would  do  any  hurt,  or  that  such  wires 
run  on  the  outside  of  buildings.  Griffin  v. 
United  Electric  Light  Co.  164  Mass.  492,"  41 
N.  E.  675,  32:  400 

80.  A  man  who  comes  in  contact  with  an 
electric  light  wire  on  the  side  of  a  building 
while  climbing  out  of  a  window  upon  a  cor- 
nice while  at  work  painting  the  building  is 
not  guilty  of  contributory  negligence,  unless 
dn  so  doing  he  fails  to  exercise  the  degree  of 
care  which  ordinarily  careful  and  prudent 
persons  usually  exercise  under  such  circum- 
stances. Mciyaughlin  v.  Louisville  Electric 
Light  Co.  100  Ky.  173,  37  S.  W.  851,  34:  812 

81.  The  apparently  proper  insulation  of 
electric  light  wires  on  the  side  of  a  building 
is  an  invitation  or  inducement  to  persons 
painting  the  building  to  risk  the  conse- 
quences of  contact  with  them, — especially 
in  the  middle  of  the  day.  Id. 
Telephone  lineman. 

In  Attempting  to   Rescue   Companion,   see 

Negligence,  238. 
Question  for  Jury  as  to,  see  Trial,  478. 

82.  An  employee  of  a  telephone  company 
in  attempting  to  string  wires  over  those  of 
an  electric  light  company  has  a  right  to 
presume  that  the  latter  company  has  com- 
plied with  an  ordinance  requiring  its  wires 
to  be  insulated,  and  is  bound  to  look  for 
patent  defects  only.  Mitchell  v.  Raleigh 
Electric  Co.  129  N.  "C.  166,  39  S.  E.  801, 

55:  398 

83.  The  right  of  a  telephone  lineman  to 
assume  that  an  electric  railroad  company 
has  used  suitable  and  safe  appliances  to 
prevent  the  escape  of  electricity  from  its 
main  or  trolley  wire  to  the  guy  wires  does 
not  excuse  him  front  exercising  proper  care 
to  prevent  injury,  when  he  knows  as  a  fact 
that  the  wires  are  not  safe.  Bergin  v. 
Southern  New  England  Teleph.  Co.  70  Conn. 
54,  38  Atl.  888,  39:  192 

84.  A  telephone  company's  lineman  who 
is  injured  by  contact  with  a  span  wire 
charged  with  electricity  by  a  trolley  wire, 
an  insulator  of  which  was  broken,  is  charge- 
able with  negligence  which  will  preclude 
his  recovery  of  damages,  where  he  failed  to 
test  the  insulator  although  he  had  appa- 
ratus by  which  he  could  do  it  and  knew 
that  there  was  no  inspector,  other  than  the 
linemen,  to  make  such  tests.  Anderson  v. 
Inland  Teleph.  &  Teleg.  Co.  19  Wash.  575, 
53  Vac.   657,  41:  410 


IV.  E<Htorial  Notes. 

§  I.  Rights  in  street;  franchise. 

Privilege  of  using  street  for  electric  light 
poles  and  wires  as  a  con- 
tract within  provision 
against  impairing  obliga- 
tion.    50:  147. 


ELECTRICITY.  IV.  (Ed.  Notes);  ELECTRIC  LIGHTS. 


1125 


Grant  of  franchise  to  electrical  subway 
company.     34:  369. 

Wires  as  additional  .servitude  in  highway. 
10:  497." 

Poles  as  an  additional  burden  on  highway. 
24:  721. 

Telegraph  and  telephone  poles  and  wires  in 
.street  as  additional  bur- 
tien  on  easement.    17:  480. 

§  2.  Control;  regulation. 

Police  regulation  of  electric  companies.     31: 
798. 
In  general.     31 :  798. 
As  to  the  occupation  of  highwajs  or 

waters.     31:799. 
As  to  guard  wires.     31:802, 
As  to   the  operation   of   eledtric   lines. 
31:  802. 

Municipal  control  over  public  nuisances  up- 
on streets  and  highways 
created  by  electrical  com- 
panies.    39:  609. 

Blectrical  wires  as  a  nuisance  under  munici- 
pal control.  38:  306;  39: 
621. 

Injunction  by  municipality  against  tele- 
graph and  telephone  poles. 
44:  577. 

Power  of  state  or  city  to  charge  for  poles 
and  wires  of  telegraph  or 
telephone  company  en- 
gaged in  interstate  busi- 
ness.    24  > 163. 

Power  to  compel  telegraph  company  en- 
gaged in  interstate  busi- 
ness to  place  wires  under 
ground.     24:  165. 

§  3.  Duty  and  liability. 

Negligence   as    to    electric    wires   on   or   in 
buildings.     32:  400. 
In  general.     32 :  400. 
Wires  on  roofs.     32:  401. 
Contributory  negligence.     32:  403. 

Liability  for  injuries  by  electric  wires  in 
highways.     31 :  566. 

General  rules.     31 :  5(36. 

Danger  of  current.     31:567. 

Degree  of  care.     31:  568. 

Liability     for    broken,    fallen,    or    sagging 

wires.     31:  573. 

Liability   of  owner.     31:573. 

Presumption  of  negligence  as  to  broken 

or    fallen    wires.     31:  576. 

Liability  of  party  breaking  them.    31: 

578.  - 
Negligent  delay  in  removing  or  repair- 

ina:  them.     31 :  579. 
Municipal   liability.     31:581. 

Failure  to  guard  wires  from  falling  wires 
of  other  owners.     31:  582. 

Concurrent  liability.     31 :  .")8(). 

Wires  charged  by  litrhtninir.     31 :  588. 

Contributory  nojrlitrence.     31:589. 

Liability  of  electric  company  to  employee 
for  injurv  caused  bv  elec- 
tric   shock.     32:  351. 


ELECTRIC   LIGHTS. 


Contract  for,  see  Contracts,  700. 
Review  of  Legislative  Decision  as  to  Neces- 
sitv  of.  see  Courts,  205. 


Stipulated  Damages  for  Delay  in  Complet- 
ing Plant,  see  Damages,  180. 

Ejectment  against  One  Occupying  Street 
with  Poles  for,  see  Ejectment,  33. 

Uses  and  Dangers  of  Electricity,  see  Elec- 
tricity. 

Contticting  Rights  of  Companies,  see  Elec- 
tricity, 10. 

Condemnation  of  Right  of  Way  for  Line  to 
Supply,  see  Eminent  Domain,  97. 

Condemnation  of  Right  of  Way  for  Carry- 
ing Water  to  Operate  Plant,  see  Emi- 
nent Domain,  141. 

Poles  for,  as  Additional  Servitude,  see  Emi- 
nent Domain,  403. 

Judicial  Notice  as  to  Authority  to  Locate 
Lights,  see  Evidence,  156. 

Fraud  in  Sale  of  Plant,  see  Fraud  and  De- 
ceit,  48. 

Abutter's  Right  of  Action  for  Trimming 
Trees  in  Installing  Plant,  see  High- 
ways, 187. 

Poles  and  Wires  for,  in  Highway,  see  Emi- 
nent Domain,  232;  Highways,  83-87. 

Injury  to  Pedestrian  by  Breaking  of  Globe, 
see  Highways,  219;  Proximate  Cause, 
128. 

Compelling  Removal  of  Poles,  see  Injunc- 
tion, 51. 

Injunction  against  Other  Company,  see  In- 
junction, 226. 

Lien  on  Poles,  see  ]\fechanics'  Liens,  74. 

Power  of  City  as  to,  Generally,  see  Munici- 
pal Corporations,  II.  f,  1. 

Power  to  Take  Bond  from  Company,  see 
^lunicipal  Corporations,  64. 

Municipal  License  for,  see  Municipal  Cor- 
porations, 133. 

Incurring  City  Debt  for,  see  Municipal  Cor- 
porations, 326,  328,  333,  351. 

Plant  for,  as  Nuisance,  see  Nuisances,  74. 

Title  of  Statute  as  to,  see  Statutes,  202. 

Tax  on,  see  Taxes,  110^112,  205,  257-259; 
Telegraphs,  11. 

1.  The  negligent  breaking  of  the  wires  of 
an  electric  light  company,  by  which  light 
and  power  are  supplied  under  contract  to 
the  plant  of  a  third  person,  who  is  thereby 
left  for  several  hours  without  the  means  of 
conducting  his  business,  does  not  render  the 
wrongdoer  liable  for  the  resulting  damages 
to  such  third  person,  although  the  latter  is 
precluded,  by  the  terms  of  his  contract 
with  the  electric  light  company,  from  re- 
covering from  it  for  damages  occasioned 
by  an  accidental  interruption  of  the  cur- 
rent. Byrd  v.  English,  117  Ga.  191,  43  S.  E. 
419,  64:94 
Exclusiveness  of  franchise. 

Impairment  of  Contract  for,  see  Constitu- 
tional Law,  1175. 

Injunction  against  Grant  of  Franchise  to 
Other  Company,  see  Injunction,  311. 

2.  No  power  to  grant  an  exclusive  privi- 
lege to  an  electric  light  company  to  supply 
a  city  and  its  inhabitants  with  lieht  is 
given'by  W.  Va.  Code  1868,  p.  329,  granting 
to  municipalities  the  power  to  control 
streets  and  light  the  same;  and  such  an 
exclusive  franchise  is  ultra  vires  and  void. 
Clarksburg  Electric  Li'rht  Co.  v.  Clarksburg, 
47  W.  Va.  739,  35  S.  E.  994,  50:  142 


1126 


ELECTRIC  RAILWAYS  ;    ELECTRIC  SUBWAY. 


3.  The  Pennsylvania  corporation  act  of 
April  29,  1874,  in  so  far  as  it  purports  to 
confer  exclusive  privileges  within  the  dis- 
trict or  locality  covered  by  a  charter  for 
the  supply  of  water,  light,  or  heat,  does  not 
apply  to  electric  light  companies.  Scranton 
Electric  Light  &  H.  Co.s  Appeal,  122  Pa. 
154,  15  Atl.  446,  1 :  285 

4.  A  statute  forbidding  any  other  elec- 
tric light  conapany  to  'iay  or  erect  wires" 
for  the  purpose  of  carrying  on  its  business, 
over  or  under  any  street,  without  consent 
of  the  authorities  in  any  city  or  town  in 
which  a  company  is  already  engaged  in 
furnis:hing  electric  light,  impliedly  forbids 
the  maintenance  or  use,  as  well  as  the  lay- 
ing or  erection,  of  such  wires  in  streets; 
and  the  prohibition  extends  to  wires  in  a 
street  which  were  lawfully  laid  by  a  prede- 
cessor of  the  company,  and  to  those  laid  by 
a  company  and  sold  to  its  customers,  as 
well  as  to  those  which  were  laid  and  owned 
by  the  customers  themselves,  where  these 
are  mere  devices  to  evade  the  statute,  and 
the  wires  outside  of  the  street  lines  are 
owned  by  the  company.  Attorney  General 
ex  rel.  Gas  &  E.  L.  Comrs.  v.  Walworth 
Light  &  P.  Co.  157  ]Mass.  86,  31  N.  E.  482, 

16:398 
Use  of  poles. 

5.  A  resolution   giving  the  owner  of  an 
electric  light  plant,  who  has  a  contract  to 
light  the  streets,  the  right  to  use,  so  far  as 
necessary  for  his  wires,  the  poles  of  an  elec- 
tric light  company  which  is  already  using 
them  for  such  wires,  on  paying  part  of  the 
coat  of  the  poles,  is  unreasonable  and  in- 
valid,   where    no    limit   of   the   use   is   pre-  I 
scribed,  and  no  regulation  of  the  manner  of  j 
the  joint  use,  such  as  will  prevent  danger 
to    lives    and    property.     Citizens    Electric ' 
Light  &  P.  Co.  v.  Sands,  95  Mich.  551,  55  N. 
W.  452,  20:  411 
Location  of  poles. 

6.  Where  the  provisions  of  a  statute  per- 
mitting the  erection  of  telegraph  poles  along 
and  upon  the  public  highways,  and  directing 
the  proper  authorities  to  designate  the 
places  where  the  poles  may  be  located,  are 
by  another  statute  made  to  apply,  "so  far 
as  applicable."  to  electric  light  companies, 
the  statute,  although  requiring  an  imper- 
ative construction  as  to  the  duty  of  the 
authorities  to  designate  places  for  the  poles 
in  the  case  of  telegraph  companies,  should 
not  receive  such  construction  when  applied  to 
electric  light  companios.  since  the  latter  are 
of  local  interest  merely,  while  in  the  former 
case  a  refusal  on  the  part  of  the  authorities 
might  defeat  the  business  of  the  company 
in  a  large  tract  nf  territorv.  Suburban 
Light  &  P.  Co.  V.  Boston,  l.i^  :Mass.  200, 
26  N.  F.  447.  10:  497 
Compulsory  service. 

7.  The  property  of  an  electric  light  com- 
pany is  so  far  devoted  to  a  public  use  when 
tlip  company  is  engaged  in  furnishing  light 
t'di  the  streets  and  inhabitants  of  a  munici- 
pality that  it  is  bound  to  furnish  light  im- 
partially to  all  applicants  at  a  reasonable 
price.  Cincinnati.  IT.  &  D.  R.  Co.  v.  Bowline 
Green,  57  Ohio  St.  3.3t;,  49  X.  E.  121.    41 :  422 


8.  An  electric  light  company  cannot  make 
payment  for  a  transformer  a  condition  to 
furnishing  electricity  to  one  whose  building 
is  wired  by  a  third  person,  where  it  fur- 
nishes transformers  free  of  charge  for  build- 
ings wired  by  itself,  although  it  considers 
that  the  profits  from  the  wiring  justify 
furnishing  transformers  without  extra 
charge.  Snell  v.  Clinton  Electric  Light,  H. 
&  P.  Co.  196  111.  626,  63  N.  E.  1082,   58:  284 

Editorial  Notes. 

Power  of  city  to  own  plant  and  manufac- 
ture.    10:  194;*  14:268. 


ELECTRIC   RAILWAYS. 

As  Carriers,  see  Carriers. 

Uses  and  Dangers  of  Electricity,  see  Elec- 
tricity. 

As  Elevated  Railroad,  see  Elevated  Rail- 
roads, 3. 

Right  of  Abutting  Owner  to  Compensation 
for  Injury  by  Operation  of,  see  Eminent 
Domain,  372,  373. 

Judicial  Notice  as  to.  see  Evidence,  98. 

Presumption  as  to  Negligence  of,  see  Evi- 
dence, 524,  525. 

As  Additional  Servitude,  see  Eminent  Do- 
main,  440-453. 

Poles  for,  in  Str<'et,  see  Highways,  88. 

Injunction  against  Construction  over  Coun- 
try Road,  see  Injunction,  405. 

As  Railroads,  see  Corporations,  533. 

As  Trunk  Railway,  see  Railroads,  1,  2. 

Crossing  Street  Railroad,  see  Railroads,  209. 

Repeal  of  Statute  as  to  Crossing  of  Rail- 
road, see  Statutes,  582. 

Rights  in  Streets,  see  Street  Railways,  8. 

As  Street  Railway,  see  Street  Railways,  2, 
17. 

Dutv  to  Operate  Cars,  see  Street  Railways, 
'59,  60. 

Electricity  as  Motive  Power  of  Street  Rail- 
way,'see  Street  Railways,  71-74,  76-78. 

Operation  of,  see  Street  Railways,  HI. 

Electric  railways  over  country  roads  con^ 
necting  widely  separated  cities  and  towns, 
cannot  be  built  without  consent  of  the 
owners  of  the  fee  of  such  roads,  notwith- 
standing the  consent  of  the  town  author- 
ities has  been  given,  under  the  general 
street  railway  act  of  Pennsylvania  of  1889, 
authorizing  corporations  for  the  construc- 
tion of  street  railways  "on  any  street  or 
highway"  on  which  no  track  is  already  laid 
or  authorized  to  be  laid,  but  giving  no  right 
of  eminent  domain,  and  providing  that  every 
railway  must  have  a  continuous  route  form- 
ing a  complete  circuit  with  its  own  track. 
Pennsylvania  R.  Co.  v.  Montgomery  Couasty 
Pass.  R.  Co.  167  Pa.  62,  31  Atl.  468,    27:  766 


ELECTRIC  SUBWAY. 

See  Subway,  4-7. 

Editorial  Notes. 

Grant    of    franchises    to    electrical    subway 
companies.     34:  369 


ELECT aOCUTION-ELEVATORS,   I. 


1127 


ELECTROCUTION. 

Cruel    and    Unusual    Punishment,    see 
Criminal  Law,  210,  211. 

^-•~*' 


ELECTROTYPE  PLATES. 

■•Contract  for  Use  of,  see  Contracts,  344,  550, 

646,  830. 
Damages  for  Breach  of  Contract  as  to,  see 

Damages,  175. 

Editorial  Notes. 

-Right  of  purchaser  to  sell  or  use  free  from 
restrictions  afte'oting  them 
in  hands  of  vendor.  55: 
632. 

. -^^-^ : 


ELEEMOSYNARY  INSTITUTIONS. 

lixemption  of,  see  Taxes,  I.  f,  3. 

"See  also  Charitable  Institutions;   Charities. 

«-»-» 


ELEMENTS. 


Editorial  Notes. 
"What  constitutes  damage  by.     53:  673. 


ELEVATED  RAILROADS. 

Right  to  Recover  for  Continuing  Trespasses 
by,  see  Action  or  Suit,  7. 

-Single  Recovery  against  by  Abutting  Owner, 
see  Action  or  Suit,  80. 

Negligence  as  to  Approaches,  see  Carriers, 
532,  546. 

Measure  of  Damages  by  Construction  of, 
see  Damages,  111.  1,  4,  b. 

•Condemnation  of  Land  for,  see  Eminent 
Domain,  23,  186. 

In   Street,   as   a   Taking   of    Property,    see 

Eminent  Domain,  237,  238. 
'Compensation  to  Lessee  of  Abutting  Prop- 
erty, see  Eminent  Domain,  294-296. 
-Consequential    Damages    by,    to    Abutting 
Owner,  see  Eminent  Domain,  340,  374- 
376. 

As  Additional  Servitude,  see  Eminent  Do- 
main, 454. 

Estoppel  as  to,  see  Estoppel,  187,  188,  240. 

^Maintenance  of,  in  Street,  see  Highways, 
165-166. 

Injunction  against,  see  Injunction,  398-400. 
"Conclusiveness  of  Decision  as  to,  see  Judg- 
ment, 168,  230.  t 
•Conclusiveness  of  Finding  as  to  Benefits  to, 
from    Street   Improvement,  see   Appeal 
and  Error,  820. 

Assessment  on,  for  Local  Improvement,  see 
Public  Improvements,  125-127. 

limitation  of  Action  for  Compensation  for 
Construction  of,  see  Limitation  of  Ac- 
tions, 144,  143. 


Ordinance  as  to  Condemnation  for,  see  Mu- 
nicipal Corporations,  230. 

Street  Railways  Generally,  see  Street  Rail- 
ways. 

Maintenance  of  Telegraph  Line  along  Struc- 
ture of,  see  Telegraphs,  4. 

Implied  Trust  as  to  Claim  for  Damages 
against,  see  Trusts,  51. 

1.  An  elevated  railroad  supported  by 
posts,  with  inclosed  sides,  is  a  "railway," 
and  not  a  "street  railway,"  within  the 
meaning  of  Iowa  Code,  §  464,  allowing 
municipal  authorities  to  authorize  or  for- 
bid the  location  of  either  in  a  street,  but 
providing  for  compensation  where  a  railway 
is  laid  thereon.  Freiday  v.  Sioux  City  R. 
T.  Co.  92  Iowa,  191,  60  N.  W.  656,    26:  246 

2.  An  elevated  railroad  viaduct  to  run 
through  the  center  of  the  blocks  and  across 
the  streets  in  the  city  of  New  York  is  not 
authorized  by  the  general  railroad  act  of 
1850;  and  such  a  structure  is  expressly  pro- 
hibited by  the  New  York  act  of  1860,  which 
forbids  the  building  of  any  railroad  "in, 
around,  or  along  any  of  the  streets  or  ave- 
nues of  the  city."  Re  People's  Rapid  Tran- 
sit Co.  125  N.  Y.  93,  26  N.  E.  25,  10:  728 

3.  A  statutory  prohibition  against  an  ele- 
vated railroad  in  a  city  street,  except  under 
special  charter  of  the  legislature,  applies  to 
a  portion  of  an  electric  railroad  elevated  20 
feet  above  the  surface  of  the  street,  built 
with  vertical  pillars  or  columns  on  which 
rest  longitudinal  girders,  with  transverse 
girders  or  crossbeams,  all  built  of  iron  or 
steel,  although  the  elevation  is  only  for  the 
purpose  of  overcoming  engineering  diflBcul- 
ties,  and  is  necessary  to  permit  an  extension 
of  the  road  to  the  center  of  the  city.  Koch 
v.  North  Ave.  R.  Co.  75  Md.  222,  23  Atl. 
463,  15:  377 

Editorial  Notes. 

Right  to  construct  in  street.     16:  377. 
Injury  by,  to  abutting  owner's  easements. 

14:381;   15:377. 
Construction;  appropriation  of  right  of  way. 

8:  173.* 
Liability  for  personal  injuries.     8:  174.* 


ELEVATORS. 


I.  Grain  Elevators. 
II.  Freight  and  Passenger  Elevators, 
in.  Editorial  Notes. 


I.  Grain    Elevators. 

Power  of  State  to  Own,  see  Constitutional 

Law,  301. 
Discrimination  against  Railways  in  Taking 

Land  for,  see  Constitutional  Law,  356. 
Due    Process    in    Regulation    of   Rates,    see 

(Constitutional  Law,  738. 
Power  of  State  to  Purchase   Site  for,  and 

Erect,  see  Constitutional  Law,  957. 
Power  to  Question  Right  of  Corporation  as 

to,  see  Corporations,  192. 


1128 


ELEVATORS,  II. 


Condemnation  of  Land  for,  see  Eminent  Do- 
main, 59,  85,  86,  152. 

Forgery  of  Elevator  Receipt,  see  Forgery, 
11. 

Fixtures  to,  see  Fixtures,  22. 

Negligence  as  to  Railing  of  Platform  for, 
see  Negligence,  80. 

Construction  of  Statute  as  to,  see  Statutes, 
476. 

Subrogation  to  Rights  against,  see  Subro- 
gation, 3. 

Uniformity  in  Taxing  Grain  in,  see  Taxes, 
51. 

Distress  on,  for  Taxes,  see  Taxes,  504. 

Certificate  of  Weight  of  Grain  Delivered 
from,  see  Weights. 

On  Wharf,  see  Eminent  Domain,  394; 
Wharves,  11,  12. 

As  to  Warehousemen,  see  Warehoiisemen. 

For  Editorial  Notes,  see  infra.  III. 

1.  The  words  "actual  cost,"  in  N.  Y.  act 
1888,  chap.  581,  §  1,  fixing  a  maximum 
charge  for  elevating  grain,  which  occur  in 
the  clause  providing  that  for  trimming  and 
shoveling  the  grain  to  the  leg  of  the  ele- 
vator vessels  shall  be  charged  only  the 
actual  cost,  are  intended  to  confine  the 
charge  for  such  service  solely  to  the  cost 
of  outside  labor  required,  and  prohibit  the 
making  of  any  charge  for  machinery  belong- 
ing to  the  elevator  above  the  sum  specified 
by  the  act  as  chargeable  for  the  use  of  the 
latter.  People  v.  Budd,  117  N.  Y.  1,  22  N. 
E.  670,  5:  559 


II.  Freight  and  Passenger  Elevators. 

Easement  of  Use  of,  see  Easements,  59. 

Presumption  of  Negligence  from  Fall  of 
Elevator,  see  Evidence,  528. 

Presumption  as  to  Continuance  of  Safety 
in  Use  of,  see  ii^vidence,  422. 

Provision  Releasing  Landlord  from  Liabil- 
ity, see  Landlord  and  Tenant,  185. 

In  Court  House,  see  Courts,  5. 

Injury  to  Employee  on,  see  Master  and 
Servant,  96-98,  494,  495,  and  also  infra, 
III. 

Assumption  of  Risk  as  to,  see  Master  and 
Servant.  283,  364. 

For  Editorial  Notes,  see  infra.  III. 

2.  A  lessor  who  is  not  in  possession  or 
control  of  an  elevator  well  in  a  leased  build- 
ing which  the  tenant  has  covenanted  to  keep 
in  repair  is  not  liable  for  the  death  of  a  per- 
son who  falls  therein  while  delivering  goods 
to  the  tenant  on  the  latter's  invitation,  al- 
though there  was  a  dangerous  defect  con- 
sisting of  a  large  opening  between  the  ele- 
vator and  the  outer  wall.  Henson  v.  Beck- 
with,  20  R.  L  165,  37  Atl.  702.  38:  710 

3.  A  lessor  who  covenants  to  keep  an  ele- 
vator in  repair  and  perfect  condition  for 
the  lessee's  use,  and  retains  grnei-al  control 
over  it,  is  rosponsible  to  the  lessee  for  its 
defective  condition,  without  any  notice  to 
him  of  such  defects.  Olson  v.  Schultz.  67 
Minn.  494,  70  N.  W.  779,  30:  790 


Injury  to  passengers  on  passenger  elevators. 

Contract  Exempting  Lessor  from  Liability^ 
see  Contracts,  315. 

Presumption  and  Burden  of  Proof  as  to- 
Negligence,  see  Evidence,  560-562. 

Evidence  as  to  Negligent  Mode  of  Running 
Elevator,  see  Evidence,  1763. 

Evidence  of  Change  in  Safety  Device  After 
Accident,  see  Evidence,  2240. 

Evidence  as  to  Newsboy's  Right  to  Ride  on^ 
see  Evidence,  1905. 

Municipal  Liability  for  Injury  in,  see  Mu- 
nicipal  Corporations,  557-559. 

Question  for  Jury  as  to,  see  Trial,  481. 

See  also  Master  and  Servant,  648. 

For  Editorial  Notes,  see  infra.  III. 

4.  The  owner  of  an  elevator  for  caiTying- 
passengers  from  one  floor  of  a  building  to 
another  is  governed  by  the  rule  applicable 
in  case  of  common  carriers,  which  makes 
him  liable  for  injuries  caused  by  the  slight- 
est negligence  against  which  human  pru- 
dence and  fores'ight  might  have  guarded^ 
Fox  V.  Philadelphia,  208  Pa.  127,  57  Atl. 
356,  65:214 

5.  The  rule  as  to  the  degree  of  care  re- 
quired, and  as  to  the  onus  of  proof,  in  case 
of  injury  from  giving  away  of  machinery,, 
applicable  between  a  common  carrier  of  pas- 
sengers and  his  passengers,  is  applicable  as 
between  the  owner  and  manager  of  a  pas- 
senger elevator  and  the  passengers  in  it. 
Goodsell  V.  Taylor,  41  Minn.  207,  42  N.  W. 
873,  4:  67a 
Treadwell  v.  Whittier,  80  Cal.  574,  22  Pac. 
266,  5:498 

6.  Passenger  elevators  are  within  the  rule 
governing  other  carriers  of  passengers, 
which  requires  the  highest  degree  of  care. 
Mitchell  V.  Marker,  22  U.  S.  App.  325,  10  C. 
C.  A.  306,  62  Fed.  139,  25:  33 

7.  Reasonable  opportunity  must  be  given 
a  passenger  on  entering  an  elevator  to  ob- 
tain a  balance  before  a  rapid  and  sudden 
start  of  the  elevator  is  made.  Id. 

8.  Reasonable,  and  not  the  utmost,  care 
as  to  the  safety  of  the  machinery  and 
appliances  by  which  a  passenger  elevator 
is  moved,  is  the  measure  of  duty  which  its 
owner  owes  to  persons  using  it  by  his  im- 
plied invitation.  Griffen  v.  Manice,  166  N. 
Y.   188,  59  N.  E.  925,  52:  922 

9.  The  operators  of  passenger  elevators 
upon  the  grounds  of  public  policy  are  re- 
quired to  exercise  the  highest  degree  of 
care  and  diligence  in  and  about  the  oper- 
ation of  such  elevators  to  prevent  injury  ta 
passengers  being  carried  thereon.  Springer 
V.  Ford,  189  111.  430,  59  N.  E.  953,         52:  930 

10.  A  proprietor  of  an  elevator  for  carry- 
ing passengers  is  liable  for  all  defects  in 
the  elevator  which  can  be  seen  at  the  time 
of  construction,  as  well  as  for  siich  as  may 
aftor\tards  exist  and  be  discovered  on  in- 
vestigation. Treadwell  v.  "^^^l^ttier,  80  Cal. 
574,   22   Pac.   266.  5:  498 

11.  The  proprietor  of  an  elevator  for 
carrying  passengers  is  bound  to  use  all 
reasonable  means  and  efforts  to  furnish 
<?ood  and  well  constructed  maohinerv  adapt- 
ed to  the  purpose  of  its  use,  and  all  reason- 
able means  and  efforts  to  furnish  or  provide 


ELEVATORS,  II. 


112!> 


it  of  good  material  which   has  been   found 
to  be  tne  safest  in  practical  use.  id. 

12.  The  proprietor  of  an  elevator  for 
carrying  passengers  is  not  liable  for  an  in- 
jury caused  by  a  defect  or  tiaw  in  the  pis- 
ton-rods of  the  elevator  apparatus,  which 
was  not  discoverable  on  a  reasonable  and 
careful  examination,  according  to  the  best- 
known   test  reasonably   practicable.  Id. 

13.  The  proprietor  of  an  elevator  run  for 
Ihe  use  of  the  tenants  of  an  oliice  building 
is  a  carrier  of  passengers  for  hire,  the  com- 
pensation being  the  rental  paid  by  the 
tenant.  Springer  v.  Ford,  189  III.  430,  59 
N.  E.  953,  52:  930 

14.  A  newsboy  who  attempts  to  ride  in  a 
passenger  elevator  after  he  has  notice  of  the 
rule  that  newsboys  are  not  allowed  to  ride 
in  it,  although  they  are  permitted  to  enter 
the  building  to  ply  their  vocation,  is  a  tres- 
passer as  to  any  use  of  the  elevator,  so  as 
to  defeat  his  right  to  recover  for  injuries  re- 
ceived in  such  attempt.  Springer  v,  Byrani, 
137  Ind.  15,  36  N.  E.  361,  23:  244 

15.  The  starting  of  an  elevator  by  the 
conductor  while  a  passenger  is  in  the  act  of 
stepping  out  of  it  will  not  render  the  pro- 
prietor liable  for  the  resulting  injury  to  the 
passenger,  if  this  was  done  by  an  involun- 
tary act  of  the  conductor  in  grasping  the 
mechanism  to  keep  himself  from  falling  as 
he  attempted  to  sit  down,  but  found  that 
his  chair  was  gone  from  its  place.  Gibson 
V.  International  Trust  Co.  177  Mass.  100,  58 
N.  E.  278,  52:  928 
Passenger  on  freight  elevator. 

As  to  Right  of  Injured  Person  on  Elevator, 

see  Evidence,  1743. 
For  Editorial  Notes,  see  infra. 

16.  The  liability  of  the  owner  of  a  freight 
elevator  to  a  passenger  lawfully  and  right- 
fully upon  it  is  measured  by  the  rules 
applicable  to  owners  of  passenger  elevators. 
Springer  v.  Ford,  189  111.  430,  59  K  E.  953, 

52:  930 
Unguarded  wells  or  shafts. 
Sufficiency  of  Proof  of  Negligence  as  to,  see 

Evidence,  2244. 
Proximate  Cause  of  Injury  by  Falling  into, 

see  Proximate  Cause,  25,  26. 
Question  for  Jury  as  to,  see  Trial,  480. 
See  also  supra,  2;  infra,  30. 
For  Editorial  Notes,  see  infra.  III. 

17.  The  insufficiency  of  a  railing  to  com- 
ply with  the  statute  requiring  a  substantial 
railing  at  an  elevator  shaft  will  not  render 
the  owner  liable  to  a  person  who  falls  into 
the  shaft,  not  because  the  railing  is  -insuf- 
ficient, but  because  it  has  been  left  out  of 
place,  and  the  shaft  left  unguarded  by  the 
negligence  of  a  third  person  using  the  ele- 
vator. Mallov  V.  New  I'ork  Real  Estate 
Asso.  156  N.  Y.  205,  50  N.  E.  853,        41:  487 

18.  The  protection  of  a  freight  elevator 
shaft  by  the  usual  method  of  a  railing  is, 
in  the  absence  of  direction  by  the  superin- 
tendent of  buildings,  sufficient  compliance 
with  N.  Y.  consolidation  act.  §  487,  as 
amended  by  T^aws  1887,  chap.  506,  requiring 
a  substantial  railing  or  trap  doors,  or  k)th, 
as  directed  and  approved  by  the  superin-  j 
tendent  of  buildings  i  Id. 


19.  An  ascending  and  descending  cage  of 
an  elevator  is  such  an  attraction  to  children 
that  an  unguarded  or  open  door,  or  one 
which  may  readily  be  opened  from  the  out- 
side, may  constitute  negligence  on  the  part 
of  the  owner  when  childi"en  are  allowed  to 
play  where  they  mav  be  injurea  by  it. 
Siddall  v.  Jansen,  108  til.  43,  48  N.  E.  191, 

39:  112 

20.  Failure  to  comply  with  the  provisions 
of  an  ordinance  respecting  the  doors  of  ele- 
vators will  render  the  owner  liable  for  an 
injury  received  in  consequence  by  a  child 
wiiieh  was  rightfully  at  the  place  of  the 
injury.  Id. 

21.  Leaving  open,  unguarded,  and  unlight- 
ed  after  dark  tlie  entrance  from  a  street  to 
an  elevator  well,  which  is  of  the  same  gen- 
eral appearance  as  the  entrance  to  a  hall- 
way leading  into  the  building,  from  which 
it  is  sepai'ated  by  a  post  only  a  foot  wide, 
will  justify  a  jury  in  finding  the  owners  of 
the  building,  who  have  control  of  the  ele- 
vator, guilty  of  negligence,  in  an  action 
against  them  for  damages  by  one  who  falls 
into  the  well  while  rightfully  seeking  to 
enter  the  building,  although  his  business  is 
with  a  tenant  occupying  another  part  of  the 
building.  Gordon  v.  Cummings,  152  Mass. 
513,  25  N.  E.  978.  9:  640 

22.  One  wlio  maintains  an  elevator  shaft 
opening  to  a  sidewalk  on  a  city  street,  but 
separated  therefrom '  by  a  stone  lintel  3 
inches  high  and  18  inches  thick,  the  opening 
being  5  or  6  feet  wide,  is  not  liable  for  in- 
juries to  a  passer-by  who  is  pushed  into 
such  shaft  by  reason  of  the  backing  up  on 
the  sidewalk  of  a  horse  attached  to  a 
wagon  being  unloaded  in  front  of  the  prem- 
ises. McTntire  v.  Roberts,  149  Mass.  450, 
22  N.  E.  13,  4:  519 

23.  To  entitle  one  to  recover  damages  for 
injuries  received  in  falling  into  an  elevator 
well  on  another's  premises,  in  an  action  in 
which  he  relies  solely  on  the  common-law 
counts,  he  must  offer  evidence  which  will 
justify  the  jury  in  finding  that  he  entered 
such  premises  by  some  invitation  or  author- 
ity from  the  latter,  that  he  was  injured  in 
so  doinsr  by  some  want  of  due  care,  for 
which  the  latter  is  responsible,  in  the  con- 
struction or  management  of  the  portion  of 
the  premises  which  he  was  authorized  to 
use,  and  that  he  himself  was  in  the  exer- 
cise of  due  care.  Gordon  v.  Cummings,  152 
Mass.  513,  25  N.  E.  y78,  9:  640 

24.  The  maintenance,  by  tenants  of  the 
upper  stories  of  a  building,  of  boxes  for  the 
reception  of  their  mail  in  a  lower  hallway 
thereof,  which  is  entirely  under  the  control 
of  the  owners  of  the  building,  will  author- 
ize the  jury  to  find  that  a  letter  carrier  who 
enters  the  hallway  for  the  purpose  of  plac- 
ing mail  in  the  boxes  does  .so  by  the  implied 
invitation  of  such  owners;  and  it  is  im- 
material that  the  building  is  used  for  work- 
shops and  that  there  are  no  offices  in  it.    Id. 

25.  A  member  of  a  fire  insurance  patrol, 
although  given  by  statute  the  right  to  enter 
buildings  which  are  burning  or  in  danger  to 
save  property,  is,  although  not  a  trespasser, 
a  mere  naked  licensee  under  a  license  given 


1130 


ELEVATORS.  III.  (Ed.  Notes.)— EMBEZZLEMENT. 


Vfv  the  law  itself,  where  he  breaks  open  a 
building  at  the  time  of  a  fire,  to  whom  the 
owner  of  a  l)uilding  owes  no  duty  in  respect 
to  the  condition  of  a  freight  elevator  be- 
tween the  main  floor  and  basement,  which 
fan  make  him  liable  for  an  injury  to  the 
patrol  by  tbe  fall  of  a  counter-weight  on 
such  elevator  because  of  a  defect  in  the 
rope  and  of  failure  to  box  or  guard  the 
weight.  Gibson  v.  Leonard,  143  111.  182,  32 
N'.  E.  182,  17:  588 

26.  The  owner  of  a  building  is  not  liable 
to  members  of  a  fire  department  for  failure 
to  guard  an  elevator  well,  or  for  so  packing 
merchandise  as  to  conduct  them  to  such  well 
when  entering  imder  a  license  conferred  by 
law  to  extinguish  a  fire.  Beehler  v.  Dan- 
iels, 18  R.  L  563,  29  Atl.  C,  27:512 

27.  The  absence  of  a  fireproof  shaft,  or  of 
metal  doors  in  the  shaft,  or  of  the  required 
catches  or  fastenings  on  the  doors,  to  a 
freight  elevator,  and  the  failure  to  have  the 
^levator  inspected  and  to  obtain  and  post  a 
<;ertificate  of  its  condition  as  required  by 
ordinance,  are  immaterial  on  the  question 
of  liability  for  injury  to  a  fire  patrol  caused 
by  the  fall  of  a  counter-weight  which  was 
not  boxed  or  guarded,  on  account  of  the 
breaking  of  a  rope  by  which  it  was  held, 
^'.ibson  v.  Leonard.  143  111.  182,  32  N.  E. 
182,  17:588 

28.  An  ordinance  requiring  elevators  and 
other  things  "so  located  as  to  endanger  the 
lives  and  limbs  of  those  employed"  in  fac- 
tories, etc.,  to  be,  so  far  as  practicable,  so 
<;overed  or  guarded  as  to  insure  against  any 
injury  to  such  employees,  does  not  create 
any  liability  for  noncompliance  therewith, 
in  favor  of  a  fire  patrol  who  is  a  mere 
licensee  on  the  premises,  as  he  is  not  with- 
in the  class  of  persons  for  whose  protection 
the  ordinance  was  passed.  Id. 
Contributory  negligence. 

See  also  supra,  14,  23. 

29.  Notice  is  not  imputed  to  a  lessee  of 
the  dangerous  condition  of  an  elevator, 
which  results  in  an  accident,  merely  because 
a  manager  of  his  business  in  the  leased  prem- 
ises knows  that  a  bolt  is  missing  from  the 
-jirm  of  the  elevator  case,  which  would  allow 
the  elevator  to  creep  about  12  inches  above 
the  floor,  when  the  defect  would  not  have 
caused  the  accident  without  other  defects 
of  which  the  manager  had  no  notice.  Olson 
V.  Schultz,  67  Minn.  494,  70  X.  W.  779. 

36:  790 

30.  A  person  familiar  with  the  premises 
is  not  guilty  of  negligence  as  matter  of  law 
in  falling  into  an  elevator  well  by  the 
side  of  the  entrance  to  a  building,  into 
which  he  was  attempting  to  go,  if  the  place 
was  dark  and  the  entrance  to  the  elevator 
well,  which  was  usually  guarded  by  a  gate 
or  chain,  was  at  the  time  unprotected,  and 
he,  after  stepping  upon  the  sill,  felt  for 
obstructions  and  finding  none  concluded  he 
was  in  the  right  place  and  took  the  next 
«tep,  which  precipitated  him  to  the  bottom 
of  the  well.  Gordon  v.  Cummings,  1.V2 
Mass.  513,  25  N.  E.  978,  9:  640 


m.  Editorial  Notes. 

Legislative  regulation  of  rates  of.     33:  178. 

Loss  of  profits  as  element  of  damages  in 
case  of  elevator  contracts. 
53:  65. 

Accidents  at  shafts  of.     9:  643.* 

Liability  of  master  for  injury  to  servant 
from  use  of  elevator. 
8:  819.* 

Liability  for  injuries  to  elevator  passengers. 
25:  33. 
Passenger  elevators.     25:  33. 
Freight  elevators  used  by  outside  par- 
ties   as    passenger    eleva- 
tors.    25:  34. 

Liability  for  condition  of,  to  tenant  of  part 
of  premises.     23:  155. 


ELIGIBILITY. 


To  become  Naturalized,  see  Aliens,  6-9. 
Of  Judge,  see  Judges,  44. 
Of  Officer,  see  Officers,  I.  a. 
As  Receiver,  see  Receivers,  8. 


ELISOR. 

An  elisor  may  be  appointed  to  take 
charge  of  the  jury  when  the  sheriff  and  his 
deputies  are  disqualified  and  the  coroner  is 
disabled  by  sickness  from  performing  the 
duty.  People  v,  Ebanks,  117  Cal.  652,  49 
Pac.  1049,  40:  269 


ELOPEMENT. 

Editorial  Notes. 
Effect  to  bar  dower.     11:791.* 


EMANCIPATION. 


Of  Minor  Children  G^enerally.  see  Fraudulent 
Conveyances,  14;  Parent  and  Child,  3, 
4. 

Parent's  Liability  for  Services  of  Physician 
after,  see  Infants,  15. 

By  Marriage,  see  Marriage,  29. 


EMBANKMENT. 


Railroad,   in   Street,   see   Eminent   Domain, 

.327.  330-3,32,  ,336,  356. 
In  Highways,  see  Highways.  1,59. 
Diversion  or  Obstruction  of  Water  by,  see 

Railroads,   II.   f. 


EMBEZZLEMENT. 


Assumpsit  for  Money  Embezzled,  Restitn- 
tion  on  Implied  Promise,  see  Assump- 
sit,  13. 


EMBLEMENTS— EMINENT  DOMAIN. 


1131 


/Forfeiture  of  Wages  by,  see  Contracts,  747. 

Oability  for  Lending  to  Embezzler,  see 
Counties,  27. 

Damages  for,  see  Damages,  108. 

Indictment  for,  see  Indictment,  etc.,  113, 
114. 

l?y  Agent,  Who  Must  Bear  Loss,  see  Prin- 
cipal and  Agent,  59. 

1.  An  indictment  under  U.  S.  Rev.  Stat. 
§  5209,  for  wilfully  misapplying  bank  funds, 
is  not  unsupported  by  the  evidence  because 
the  funds  are  shown  to  be  in  his  possession, 
which  makes  the  ofi'ense  embezzlement,  and 
the  statute  provides  for  the  punishment  of 
tiuibezzlement  or  wilful  misapplication  of 
funds,  since  the  term  "wilful  misapplica- 
tion" covers  embezzlement,  and  Jt,  is  not 
necessary  to  construe  the  generic  term  so 
])eculiarly  as  to  exclude  the  narrower  word 
])receding  it.  Jewett  v.  United  States,  41 
C.  C.  A.  88,  100  Fed.  832,  53:  568 
Jtfy  clerk. 

Postmaster's  Liability  for,  see  Bonds,  87. 

2.  The  crime  of  embezzlement  is  not 
rhanged  to  larceny  in  the  case  of  a  clerk 
"who    appropriates    money    received    from    a 

•ustomer,  by  the  mere  fjict  that  he 
temporarily  deposited  it  in  the  cash  drawer, 
where  he  did  so  without  registering  it  and 
with  intent  to  keep  the  money  for  himself, 
and  soon  after  took  the  money  out  again. 
Com.  v.  Ryan,  155  Mass.  523,  30  N.  E. 
^64,  15:  317 

3.  It  is  no  defense  for  embezzlement  by  a 
•clerk  that  the  money  embezzled  was  re- 
ceived by  him  on  a  feigned  purchase  by  one 
to  whom  the  money  was  given  by  the  em- 
ployer  for   that   purpose.  Id. 

iBy  agent  of  corporation. 
By  Agent  to  Wind  up  Affairs  of  Insolvent 
Bank,  see  Banks,  384-386,  390,  393. 

4.  An  employee  of  ii  foreign  corporation 
('annot  defend  a  charge  of  embezzlement  on 
the  ground  that  the  corporation  had  not 
complied  with  the  conditions  of  the  statutes 
i^o  as  to  have  the  right  t«  acquire,  hold,  col- 
lect, or  pay  out  money  in  the  state.  State 
•v.  O'Brien,  94  Tenn.  79,  28  S.  W.  311, 

26:  252 
By  attorney. 

5.  An  attorney  at  law  has  a  lien  for  a 
treneral  balance  of  compensation  upon 
Tiioney  in  his  hands  belonging  to  hi*  client; 
and  until  such  lien  is  discharged  he  is  not 
liable  to  a.  prosecution  for  embezzlement  of 
fsueh  money.  Van  Etten  v.  State,  24  Neb. 
734,  40  N.'W.  289,  1:  069 

6.  A  prosecution  for  embezzlement,  by  an 
attorney,  of  funds  in  his  hands,  on  which  he 
not   only   claims   a  lien,  but   also   claims   a 

"balance  in  addition,  cannot  be  maintained 
under  a  verdict  against  him  for  a  portion 
of  the  nionev  pending  an  appeal  therefrom. 

Id. 
By  r-aceiver. 

7.  A  receiver  who  unlawfully  appropri- 
ates money  which  comes  into  his  hands  as 
receiver,  or  fails  to  account  for  or  pay  over 
the   same   on   demand,   is    not   within   Kan. 

■Comp.  Laws  1889,  T  2220,  providing  that  if 
-any  "agent"  shall  neglect  or  refuse  to  de- 
•liver   to   his   "employer   or   employers,"   on 


demand,  any  money  which  has  come  into 
his  possession  by  virtue  of  such  employ- 
ment, he  shall  on  conviction  be  punished. 
State  V.  Hubbard,  58  Kan.  797,  51  Pac.  290, 

39:  860 
By  public  officer. 

8.  The  intention  of  a  state  treasurer  to 
retain  the  interest  received  from  the  de- 
posits of  public  moneys  will  not  make  such 
deposits  an  embezzlement,  when  they  were 
made  in  his  official  capacity,  for  the  benefit 
of  the  state,  in  due  course  of  business. 
State  V.  McFetridge,  84  Wis.  473,  54  N.  W. 
1,  998,  20:  223 

9.  A  mail  carrier  is  not  guilty  of  embez- 
zlement by  appropriating  to  his  own  use 
salary  earned  by  him,  although  he  had  made 
a  void  assignment  thereof  before  it  was 
earned,  and  taken  an  appointment  as  agent 
from  the  assignee  to  collect  it  for  the  lat- 
ter, since  he  was  not  in  fact  an  agent  in 
collecting  the  money,  because  the  assign- 
ment was  void.  State  v.  Williamson,  118 
Mo.   146,  23  S.  W.   1054,  21 :  827 

Editorial  Notes. 

From   mails.     1:  104.* 

Evidence  of  other  crimes  in  prosecution  for. 
62:226,  264. 

Liability  of  bailee  for  wrongful  appro'pria- 
tion  of  subject  of  bailment 
by  servant.     29:  92. 

■^-•-^ 


EMBLEMENTS. 


See  Crops. 

«-»^^ — 

EMERGENCY  CLAUSE. 

See  Statutes,  41,  42. 


EMERY  WHEELS. 


Police  Power  as  to  Use  of,  see  Constitu- 
tional Law,  1055. 

Warranty  as  to  Speed  Capacity  of,  see  Sale, 
57. 


EMIGRANT  AGENT. 

Tax  on,  see  Commerce,  88. 

License  of,  see  License,  164. 

Equal  Protection  and  Privileges  as  to,  see 

Constitutional  Law.  468,  469. 
Police  Power  as  to,  see  Constitutional  Law, 

1028. 


EMINENT  DOMAIN. 


I.  Right  to  Take  Property. 

a.  In  General. 

b.  Who  may  Exercise. 

c.  What  may  be  Taken. 

1.  In  General. 

2.  Railroad  Property. 


1132 


EMINENT  DOMAIN,  I.  a,  b. 


I.  Continued. 

d.  For  What  Purpose. 

1.  In  General. 

2.  Railroads. 

3.  As     to     Water     and     Water 

Rights. 

e.  Right  Acquired. 
II.  Procedure. 

a.  In  General. 

b.  Petition. 

c.  Trial;  Judgment. 

1:  In  General. 

2.  Jury  and  Verdict. 

d.  Appeal;  New  Trial. 

III.  Rights  and  Remedies  of  Owners. 

a.  In  General. 

b.  What  Constitutes  a  Taking  of,  or 

Injury  to,  Property. 

1.  In  General. 

2.  As  to  Streets  and  Highways. 

3.  As     to     Water     and     Water 

Rights;  Sewage. 

4.  Crossing   Railroad. 

c.  Right  to  Compensation. 

1.  Necessity  of  Making  Compen- 

sation. 

2.  Who  Entitled  to  the  Compen- 

sation. 

d.  Payment  or  Security. 

e.  Consequential  Injuries. 

1.  In  General. 

2.  By    Construction    and    Opera- 

tion of  Railroad. 
,  3.  As  to  Water  or  Water  Rights ; 

Sewage. 
4.  As  to  Streets  or  Highways. 

IV.  Additional  Servitude. 

a.  In  General;  On  Railroad  Way. 

b.  On  Highway. 

1.  In  General. 

2.  Railways  of  Various  Kinds. 
V.  Editorial  Notes. 

Interference    with,    as    Affecting   Interstate 

Commerce,  see  Commerce,  18. 
Construction  of  Constitutional  Provision  as 

to,   see  Constitutional   Law,   60. 
Self-executing   Constitutional    Provision    as 

to,  see  Constitutional  Law,  77,  78. 
Equal  Protection  and  Privileges  as  to,   see 

Constitutional  Law,   354-357. 
Due  Process  of  Law  as  to,  see  Constitutional 

Law,  II.  b,  2,  b. 
Requiring  Railroad  Company  to  Pay  Attor- 
ney's Fees,  see  Constitutional  Law,  578- 

580. 
(Jompelling    Payment    of    Share    of    Party 

Wall,  see  Constitutional  Law,  988. 
Authorizing  Abandonment  of  Proceeding  as 

Impaii-ment   of   Substantial   Right,    see 

Constitutional  Law,  1128. 
Costs  in,  see  Costs  and  Fees,  15. 
Review    of   Legislative   Decision   as   to,    see 

Courts,    15(]-165. 
Acquisition   of   Prescriptive   Right   of  Way 

by  Railroad,  see  Easements,  20-28. 
Interest  on   Amount  xVwarded,  see  Interest. 

44-4G. 
I'fTect   of  Judgment   in   Condemnation   Pro- 

ceetlings.  see  Judgment,  185,  18G. 
Ea)'  of  ForJiier  Judgment  in  Condemnation 

Proceedings,  see  Judgment,  194. 


Power  of  City  to  Destroy  Intoxicating  Li- 
quors, see  Municipal  Corporations,  247, 
248. 

Title  of  Statute  as  to,  see  Statutes,  209. 

Repeal  of  Statute  as  to.  see  Constitutional 
Law,  29;   Statutes,  565. 


I.  Right  to  Take  Property, 
a.  In  General. 

Delegation  of  Power  to  Determine  Necessity 
of  Exercise  of  Power,  .see  Constitution- 
al Law,  165. 

Estoppel  to  Deny  Validity  of  Taking,  see 
Estoppel,  262. 

For  Editorial  Notes,  see  infra,  V.  §  1. 

1.  Power  to  condemn  property  injured  by 
a  sewer  system  for  a  temporary  period  nec- 
essarj-  to  perfect  some  other  method  of  dis- 
posing of  the  sewage  is  not  conferred  by 
general  authority  to  construct  sewers  and 
acquire  by  eminent  domain  the  property  nec- 
essary for  that  purpose.  Waterbury  v.  Piatt 
Bros.  &  Co.  75  Conn,  387,  53  Atl.  958. 

60:  211 

2.  A  judgment  in  ejectment  against  a 
body  having  the  power  of  eminent  domain 
is  not  a  bar  to  the  exercise  by  such  body  of 
such  power  as  to  the  land  recovered  in  the 
action  of  ejectment.  Jacksonville,  T.  &  K» 
W.  R.  Co.  V.  Adams,  28  Fla.  631,  10  So.  465, 

14:  53a 
Interference  by  court  with  location  selected. 

3.  The  discretion  of  a  railroad  company  as 
to  the  location  of  side  tracks  which  are  nec- 
essary for  its  business  will  not  be  overruled 
by  the  courts,  unless  there  is  very  clear 
abuse  of  it.  St.  Louis,  I.  M.  &  S.  R.  Co. 
v.  Petty,  57  Ark.  359,  21  S.  W.  884,    20:  434 

4.  The  selection  by  a  railroad  company  of 
the  location  of  its  proposed  road  being  given 
by  statute  to  such  companj-,  the  court  has 
no  right  to  deny  the  exercise  of  the  power  of 
eminent  domain  to  c^tndemn  such  right  of 
May  because  it  thinks  some  other  location  is 
as  good  or  better.  Kansas  &  T.  Coal  R.  Co. 
V.  Northwestern  Coal  &  M.  Co.  161  Mo.  288, 
61  S.  W.  684,  51 :  936 
Who  may  object  to  want  of  power. 

See  also  infra,  213. 

5.  A  third  party  not  intere.steJ  in  lands 
taken  for  a  right  of  way  by  a  railroad  com- 
pany cannot  object  that  the  company  has  no 
power  under  its  charter  to  acquire  the  spe- 
cific lands  for  railway  purposes.  Kettle  Riv- 
er R.  Co.  V.  Eastern'R.  Co.  41  Minn.  461,  4.? 
N.W.  469,  6:111 

6.  Absence  of  power  to  comlenin,  for  a 
reservoir,  land  situated  within  a  government 
forest  reserve  cannot  be  urged  by  a  private 
individual  to  defeat  the  condemnation  pro- 
ceedings. Denver  Power  &  Irrig.  Co.  v.  Colo- 
rado &  S.  R.  Co.  30  Colo.  204,  69  Pac.  568, 

60:  383 
1).  Who  may  Exercise. 

Canal  Conmanies,  see  infra,  137. 
Cemetery  Company,  see  infra,  92. 
Water  Supply  Company,  see  infra,  140. 


EMINENT  DOMAIN,  I.  b. 


1133 


Press  Association,  see  Press  Associations,  1. 

Constitutionality  of  Limitation,  see  Consti- 
tutional   Law,    354. 

Ordinance  as  to  Power  of  Elevated  Railroad 
C^ompany,  see  Municipal  Corporations, 
23G. 

Special  Legislation  as  to,  see  Statutes,  310. 

For  Editorial  Notes,  see  infra,  V.  §  2. 

7.  Where  "a  body  possessing  the  power  of 
eminent  domain  has  entered  upon  land  with- 
out leave  of  the  owner,  and  without  comply- 
ing with  the  law  regulating  the  exercise  of 
such  power,  it  may  condemn  the  property 
entered  upon,  and  thereby  secure  the  right 
to  the  legal  possession  and  enjoyment  there- 
of; and  thih,  whether  it  has  or  has«not  been 
ousted  from  its  former  or  illegal  possession. 
Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Adams,  28 
Fla.  (531,   10  So.  465,  14:533 

8.  That  title  to  a  public  improvement 
when  it  is  completed  is  to  be  conveyed  to  the 
United  States  will  not  prevent  the  state 
from  exercising  its  power  of  eminent  domain 
to  acquire  the  necessary  land  upon  which  to 
<'onstrHct  it.  Lancev  v.  King  County,  15 
Wash.  9,  45  Pac.  045,  34:  817 
Private  corporation. 

Uurden  of  Proving  Power,  see  Evidence,  407. 
f>.  The  right  of  eminent  domain  is  con- 
ferred upon  a  corporation  by  authority  to 
take  and  hold,  and  to  purchase  and  hold, 
necessarj-  real  estate,  followed  by  provisions 
for  payment  of  the  owner's  damages.  Rock- 
ingham County  Light  &  P.  Co.  v.  Hobbs,  72 
N.  H.  531,  58  Atl.  46,  66:  581 

10.  A  private  corporation  may  exercise  the 
right,  given  by  the  Constitution,  to  take 
private  proi>erty  for  purposes  of  a  reservoir, 
upon  property  of  a  railroad  company  which 
is  not  held  for  public  use.  Denver  Power  & 
Irrig.  Co.  v.  Colorado  &  S.  R.  Co.  30  Colo. 
ii04,  6!)  Pac.  568,  60:  383 

11.  A  corporation  is  for  a  private,  and  not 
for  a  public,  purpose,  and  is,  therefore,  not 
•entitled  to  exercise  the  right  of  eminent  do- 
main, which  is  authorized  to  develop  and  use 
the  water  power  of  a  river  and  generate 
electric,  or  other  power,  light,  or  heat,  and 
utilize,  transmit,  and  distribute  it  for  its 
own  use.  or  the  use  of  other  individuals  or 
corporations,  and  the  mere  fact  that  its 
charter  recognizes  it  as  an  "internal  im- 
provement company"  is  immaterial.  Falls- 
burg  Power  &  Mfg.  Co.  v.  Alexander,  101  Va. 
H8,  43  S.  E.  194.  61:  129 
Foreign  bridge  company. 

12.  That  a  cori)oration  has  under  its  char- 
ter power  to  condemn  land  for  a  certain  pur- 
pose will  give  it  no  right  to  exercise  the 
power  in  another  state  unless  it  is  permitted 
to  do  so  bv  the  laws  of  the  latter.  Southern 
I.  &  M.  Bridge  Co.  v.  Stone,  174  INlo.  1,  73  S. 
"W.  453,  63:  301 

13.  A    corporation    organized    to   build    a 
liridge  may  exercise  the  powers  possessed  by 
such  ctjrporations  in  a  foreign  state  in  which 
it  undertakes  to  do  business  by  consent  of 
such  state,  including  that  of  acquiring  land 
for  approaches  and  terminal  facilities  by  an  i 
■exercise   of   the   power   of  eminent   domain,  ! 
although   no   such   power   is   expressly   con-  | 
ferred  upon  it  by  its  charter.  Id. 


14.  A  statute  authorizing  a  foreign  bridge 
company  upon  filing  its  articles  of  incorpora- 
tion and  receiving  a  certificate  from  the 
secretary  of  state,  to  transact  within  the 
state  the  business  which  its  charter  author- 
izes, confers  upon  it  the  right  to  acquire  by 
the  exercise  of  the  power  of  eminent  domain 
the  property  which  is  necessary  for  its  ap- 
proaches and  terminal  facilities,  where  by 
the  local  laws  that  is  one  of  the  incidents  qf 
the  granting  of  a  charter  authorizing  the 
construction  of  such  a  bridge.  Id. 

15.  Changing  the  words  ''to  the  uses  of 
said  corporation,"  in  the  section  of  a  statute 
providing  for  the  creation  of  bridge  compan- 
ies, which  specifies  for  what  purposes  prop- 
erty may  be  acquired  under  the  power  of 
eminent  domain,  so  as  to  read  "for  approacli- 
es,  road,  foot,  or  wagon  ways,"  does  not  in- 
dicate an  intention  to  deprive  a  company 
organized  to  construct  a  railroad  bridge  of 
the  power  to  condemn  property  for  terminal 
accommodations  for  the  use  of  such  rail- 
roads as  may  desire  to  use  the  bridge,  since 
the  word  "road"  may  be  held  to  include  rail- 
road. Id. 
Railroad  company. 

Foreign  Railway  Company,  see  Corporations, 

821. 
Estoppel    to   Deny  Power  of,  see  Estoppel, 

189. 
See  also  infra,  101. 

16.  That  a  railroad  company  lias  commit- 
ted an  act  for  which  its  charter  might  be 
forfeited  by  refusing  to  serve  the  public  is 
no  ground  for  denying  it  the  right  to  exer- 
cise the  power  of  eminent  domain  to  acquire 
a  right  of  way  for  an  extension  of  its  sys- 
tem. Ulmer  v.  Lime  Rock  R.  Co.  98  Me. 
579,  57  Atl.  1001,  66:  387 

17.  A  railroad  company  is  not  deprived  of 
the  right  to  exercise  the  power  of  eminent 
domain  by  the  fact  that  it  had  no  rolling 
stock  of  its  own.  and  its  right  of  way  is 
leased  to  another  companv.  State  ex  rel. 
Trimble  v.  King  Countv  Super.  Ct."31  Wash. 
445,  72  Pac.  89.  "  66:  897 
Street  railway  company. 

18.  A  corporation  operating  a  street  rail- 
way for  the  benefit  of  the  local  public  cannot 
condemn  lands  for  a  right  of  way.  under  a 
statute  of  Oregon  authorizing  condemnation 
of  right  of  way  by  a  corporation  organized 
for  the  construction  of  "any  railway,"  as  it 
is  evident  from  the  provisions  of  such  stat- 
ute that  it  intended  to  confer  the  right  of 
eminent  domain  on  such  railways  only  as  are 
highways  for  the  carriage  of  passengers  and 
freight.  Thomson-Houston  Electric  Co.  v. 
Simon.  20  Or.  60,  25  Pac.  147,  10:  251 
Telephone  company. 

See  also  Telej)hones,  4. 

19.  A  telephone  companv  organized  under 
Tex.  Rev.  Stat.  1891,  §  642.  subd.  8,  provid- 
ing that  a  corporation  may  be  formed  to  con- 
struct and  maintain  "a  telegraph  and  tele- 
phone line,"  which  statute,  as  it  formerly 
read,  provided  for  a  corporation  to  maintain 
"a  telegraph  or  telephone  line,"  is  entitled 
to  exercise  the  power  of  eminent  domain  un- 
der Tex.  Rev.  Stat.  1871,  §  699,  giving  such 
power  to  corporations  created  for  the  pur- 


1134 


EMINENT  DOMAIN.  I,  c,  1. 


pose  of  constructing  and  maintaining  "a 
magnetic  telegraph  line."  San  Antonio  & 
A.  P.  R.  Co.  V.  Southwestern  Teleg.  & 
leleph.  Co.  93  Tex.  313,  55  S.  W.  117, 

49:469 
Irrigating  company. 

20.  Irrigating  companies  organized  under 
the  laws  of  the  state  have  power  to  acquire 
by  condemnation  the  right  of  way  for  neces- 
sary canal«,  reservoirs,  etc.,  under  Neb.  act 
March  27,  1889,  art.  2,  §  8,  providing  that 
such  corporations  may  acquire  a  right  of 
way  for  such  purposes  over  any  land.  Pax- 
ton  &  H.  Irrig.  C.  &  L.  Co.  v.  Farmers'  &  M. 
Irrig.  &  L.  Co.  45  Neb.  884,  64  N.  W.  343, 

29:  853 


c.  What   may  be  Taken. 
1.  In  General. 

For  Editorial  Notes,  see  infra,  V.  §§  7,  8. 

21.  Courts  in  eminent  domain  cases  must 
deal  with  the  conditions  that  exist  at  the 
time  the  condemnation  is  asked,  and  cannot 
take  into  account  conditions  that  may  or 
may  not  arise  or  be  created  thereafter. 
Kansas  &  T.  Coal  R.  v.  Northwestern  Coal 
&  M.  Co.  161  Mo.  288,  61  S.  W.  684,    51:  936 

22.  Lands  owned  by  corporations  as  well 
as  bv  natural  persons  are  included  within 
Neb.  act  March  27,  1889,  art.  1,  §  3,  provid- 
ing that  no  tract  of  land  shall  be  crossed  by 
more  than  one  irrigating  ditch  without  the 
consent  of  the  "owners  thereof."  Paxton 
&  IT.  Irrig.  C.  &  L.  Co.  v.  Farmers'  &  M. 
Irrig.  &  L.  Co.  45  Neb.  884,  64  N.  W.  343, 

29:  853 

23.  Pending  proceedings  by  an  elevated 
railroad  company  to  condemn  a  riarht  of  way. 
authorized  under  its  charter  to  be  100  feefe 
in  width,  but,  by  a  city  ordinance  passed 
under  power  to  provide  for  and  change  the 
location  of  the  road,  limited  to  30  feet  and 
to  the  location  parallel  to  and  adjoining  an 
alley  line, — are  within  the  operation  of  a 
subsequent  ordinance  removing  such  restric- 
tions. Tudor  v.  Chicago  &  S.  S.  R.  T.  R. 
Co.  164  111.  73,  46  N.  E.  446,  .36:  379 
Property  subject  to  public  use  generally. 
For  Editorial  Notes,  see  infra,  V.  §  8. 

24.  The  taking  of  private  property  only 
is  authorized  bj'  statutes  providing  for  the 
exercise  of  the  power  of  eminent  domain,  im- 
loss  there  is  either  express  or  clearly  im- 
plied authoritv  to  extend  them  to  public 
l.roiK-rtv.  Seattle  &  M.  R.  Co.  v.  State.  7 
Wash.  150.  .34  Pac.  551,  22:  217 

25.  Land  already  legally  appropriated  to 
;i  public  use  i*  not  to  be  afterwards  taken 
for  a  like  use.  unless  the  intention  of  the 
li'gislature  that  it  should  be  so  taken  has 
been  manifested  in  express  terms  or  by  nec- 
cssarv  implication.  Bane  R.  Co.  v.  Mont- 
[lejier  &  \V.  R.  R.  Co.  01  Vt.  1,  17  Atl. 
!t23.  4:785 

26.  The  use  for  which  property  already 
held  for  public  use  may  be  condemned  nee<l 
not  be  a  different  one,  under  a  statute  per- 
mitting such  condemnation  for  a  more  neces- 


sary public  use.  Butte,  A.  &  P.  R.  Co.  v 
Montana  U.  R.  Co.  16  Mont.  504,  41  Pac.  232. 
248,  31:298- 

For  pumping  station  of  water  company. 

27.  Permission  to  a  water  company  to 
take  water  from  a  pond  the  shores  of  which 
have  already  been  appropriated  to  public 
use,  and  also  to  take  and  hold  all  land  neces- 
sary for  raising,  holding,  and  purifying  it, 
impliedly  authorizes  the  taking  of  previous- 
ly appropriated  land  on  the  shore  of  the 
pond  for  a  pumpmg  station  and  filtering: 
gallery,  together  with  a  right  of  way  there- 
to, where  such  land  is  not  indispensable  to 
the  prior  appropriator,  while  the  water  com- 
pany could  only  with  difficulty,  if  at  all,, 
do  business  without  it.  Old  Colony  R.  Co. 
V.  Framingham  Water  Co.  153  Mass.  561,. 
27  N.  E.  662,  13:  332- 
Lands  of  mining  company. 

28.  Land  used  by  a  mining  coi-poration  for 
railroad  purposes  without  charter  author- 
ity is  not  within  the  protection  of  Mo.  Rev. 
Stat.  1889,  §  2741,  declaring  that  the  right 
to  appropriate  for  a  railroad  lands  held  by 
any  corporation  shall  be  limited  to  such  use 
as  shall  not  materially  interfere  with  the- 
uses  to  which  the  corporation  holding  the 
land  is  authorized  to  put  it.  Kansas  &  T. 
Coal  R.  V.  Northwestern  Coal  &  M.  Co.  161 
Mo.   288,  61   S.  W.  684,  51:  936 

29.  Condemnation  of  th«  land  of  a  coal 
company  for  a  railroad  track,  although  its 
use  for  railroad  purposes  would  materially 
interfere  with  the  coal  company's  authorized 
use  of  its  land  for  mining  purposes,  is  not 
precluded  by  Mo.  Rev.  Stat.  1889,  §  2741, 
declaring  that  the  right  to  appropriate  for 
a  railroad  lands  held  by  any  corporation 
sJiall  be  limited  to  such  use  as  shall  not  ma- 
terially interfere  with  the  uses  to  which  the 
corporation  holding  the  land  is  authorized 
to  put  it.  Id. 
Property  of  water  company. 

Measure  of  Damages  for  Taking,  see  Dam- 
ages, 484-497. 

30.  Condemnation  by  a  city  of  the  work* 
and  franchise  of  a  water  company  may  be 
authorized  by  statute  on  the  ground  that  it 
is  for  a  public  use  of  a  higher  and  wider 
scope.  Re  Brooklyn,  143  N.  Y.  596,  38  N.  E. 
983,  '  26:  270- 

31.  A  statute  authorizing  a  city  to  acquire 
the  property  of  a  water  company,  declaring- 
the  acquisition  to  be  in  the  public  interest 
and  for  the  public  use,  is  not  unconstitu- 
tional because  of  its  failure  to  designate  the- 
particular  public  use  for  which  it  is  taken. 

Id» 

32.  Franchises  possessed,  but  not  in  fact 
exercised,  are  included  in  a  statute  author- 
izing one  water  company  to  acquire,  by  right 
of  eminent  domain,  "the  entire  plant,  prop- 
ertv,  and  franchises"  of  another.  Kennebec 
Water  Dist.  v.  Waterville.  97  Me.  185,  54 
Atl.  0,  60:85ff. 
Tide  lands:  land  covered  by  water. 

See  also  Wharvc;,  3. 

For  Editorial  Notes,  see  infra,  V.  §  7. 

33.  Tide  lands  cannot  be  condeinnetl  for 
railroad  uses  by  reason  of  a  statutory  pro- 
vision for  the  appropriation  of  "state,  school,. 


EMINENT  DOMAIN,  1.  c,  2. 


1135- 


or  county  land,"  under  the  Washington 
Constitution  and  statutes,  in  the  nomencla- 
ture of  which  "state"  lands  did  not  include 
tide  lands.  Seattle  &  M.  R.  Co.  v.  State,  7 
Wash.  150,  34  Pac.  551,  22:  217 

34.  Persons  in  possession  of  tide  land  un- 
der a  contract  with  the  state  for  its  pur- 
chase, although  they  have  not  fully  complied 
with  the  terms  of  their  contract  so  as  to 
obtain  a  legal  title  to  the  premises,  have 
an  interest  which  is  subject  to  be  taken 
from  them  under  a  statute  giving  the  right 
to  acquire  "lands,  real  estate,  or  premises," 
by  right  of  eminent  domain  for  railroad 
purposes.  State  ex  rel.  Trimble  v.  King 
County  Super.  Ct.  31  Wash.  445»  72  Pac. 
89,  "   66:  897 

35.  That  a  contract  for  the  purchase  of 
tide  land  has  not  been  fully  complied  with 
so  as  to  vest  the  title  in  the  grantee  does 
not  prevent  the  taking  of  the  land  by  right 
of  eminent  domain,  although  the  statutes 
<lo  not  apply  to  it  while  it  is  the  property 
of  the  state.  Id. 

36.  Lands  covered  by  the  waters  of  Lake 
Michigan  are  not  within  the  provision  of  111. 
act  Feb.  10,  1851,  §  3,  incorporating  the 
Illinois  Central  Railroad  Company,  which 
authorized  it  to  take  "any  lands,  streams, 
and  materials  of  every  kind  for  the  location 
of  depots"  and  other  specified  purposes. 
Illinois  C.  R.  Co.  v.  Chicago,  173  111.  471, 
50  N.  E.  1004,  53:  408 
Riparian  rights. 

37.  Riparian  rights  of  the  lower  owners 
of  land  upon  the  bank  of  a  stream  are  prop- 
erty such  as  cannot  be  taken  by  the  state, 
even  for  a  public  use,  except  in  aid  of  navi- 
gation, without  compensation  to  the  owner, 
and  cannot  be  taken  at  all  or  impaired  for 
a  private  use.  Patten  Paper  Co.  v.  Kau- 
kauna  Water-Power  Co.  90  Wis.  370,  61  N. 
W.    1121,  28:  443 

.38.  The  condemnation  of  the  right  of  a 
private  riparian  proprietor  to  the  use  and 
enjoyment  of  a  natural  stream  flowing  past 
his  land,  or  its  impairment  by  an  appropria- 
tion of  such  water  for  irrigation  purposes, 
is  authorized  by  Neb.  Comp.  Stat.  1901,  chap. 
93a,  art.  2,  §  41,  and  by  Neb.  Const,  art.  1, 
§  21,  and  such  proprietors  may  recover  dam- 
ages in  the  same  way  and  subject  to  the 
same  rules  as  a  person  whose  property  is 
aflFected  injuriously  by  the  construction  and 
operation  of  a  railroad.  Crawford  Co.  v. 
Hall,  67  Neb.  325,  93  N.  W.  781,       60:  889 

39.  A  vested  common-law  right  in  the  flow 
of  the  waters  of  a  running  stream  is  a  prop- 
erty right,  which  can  be  condemned  for  pub- 
lic use  only  under  the  same  restrictions  as 
apply  to  the  taking  of  other  private  prop- 
«!rtv  for  public  use.  Clark  v.  AUaman,  71 
Kan.  206,  80  Pac.  571,  70:  971 

40.  The  right  to  fish  in  an  inland  lake  in 
New  Jersey  cannot  be  separated  from  the 
ownership  of  the  lake,  and  taken  under  the 
power  of  eminent  domain.  Albright  v.  Sus- 
sex County  L.  &  P.  Com.  (N.  J.  Err.  &  App.) 
71  N.  J.  L.  303,  309,  57  Atl.  398,  59  Atl.  146, 

69:  768 
Street. 

41.  An  owner  of  a  lot  abutting  on  a  street 


dedicated  for  street  purposes  has  a  property 
interest  in  the  street  in  front  of  his  lot, 
which  cannot  be  taken  against  his  will,  un- 
less compensation  shall  first  be  made  there- 
for in  money.  Callen  v.  Columbus  Edison 
Electric  Light  Co.  66  Ohio  St.  166,  64  N.  E. 
141,  •  58:  782- 

42.  No  portion  of  a  public  street  can  law- 
fully be  appropriated  to  the  exclusive  and 
permanent  use  of  a  private  corporation,  un- 
der the  guise  of  an  exercise  of  power  to^ 
alter  or  cliange  the  grade.  Willamette  Iron 
Works  V.  Oregon  R.  &  Nav.  Co.  26  Or.  224. 
37  Pac.  1016,  29:  88 
Private  cemetery. 

43.  A  private  cemetery  belonging  to  a  re- 
ligious corporation  may  be  taken  in  condem- 
nation procee<lings  for  a  public  park,  under 
N.  Y.  Laws  1887,  fhap.  320,  giving  power  ta 
condemn  "any  and  all  lands"  within  a  dis- 
trict which  includes  the  cemeterv.  Re  New 
York  Street  Opening  &  I.  Bd.  13.3  N.  Y.  329. 
31  N.  E.  102,  16:  180 
Cansent  to  operation  of  street  railroad. 

44.  The  consents  of  owners  of  lots  abut- 
ting on  a  street  to  the  construction  and  op- 
eration of  a  street  railroad  on  such  street 
are  not  property  rights  that  can  be  appro- 
priated imder  the  power  of  eminent  domain. 
Hamilton,  G.  &  C.  Traction  Co.  v.  Parrish,. 
67  Ohio  St.  181,  65  N.  E.  1011,  60:  531 

2.  Railroad  Property. 

Measure  of  Damages  for  Taking,  see  Dam- 
ages, 476. 
See  also  supra,  28. 
For  Editorial  Notes,  see  infra,  V.  §  8. 

45.  The  mere  laying  of  rails  upon  a  right 
of  way  is  not  suflicient  to  protect  the  prop 
erty  from  appropriation  for  other  public 
uses,  if  the  property  has  been  held  by  vari 
ous  railroad  companies  for  many  years- 
without  any  attempt  by  them  to  utilize  it, 
and  the  rails  are  laid  only  a  short  time  be- 
fore the  proceedings  are  instituted  to  ac- 
quire adverse  title  to  the  property,  and 
tbree  years  after  the  one  seeking  title  has^ 
commenced  to  expend  money  on  the  proper- 
ty; and  the  fact  that  the  corporation  laying 
them  comes  into  existence  only  a  short  time 
before  it  begins  to  lay  the  rails  is  immate- 
rial if  its  rights  are  acquired  from  other 
corporations  which  never  made  any  attempt 
to  construct  a  road.  Denver  Power  &  Irrig. 
Co.  V.  Colorado  &  S.  R.  Co.  30  Colo.  204.  69 
Pac.  .568,  00:  38.3 
For  other  railroad. 

For  l^.ditorial  Notes,  see  infra,  V.  §  8. 

40.  A  railroad  is  located  so  as  to  exclude- 
the  appropriation  of  the  land  selected  by 
another  road,  when  a  definite  location  has 
been  adopted  by  the  action  of  the  company; 
but  the  act  of  an  engineer  in  staking  out 
the  line  is  not  a  sufficient  location.  Wil- 
liamsport  &  N.  B.  R.  Co.  v.  Philadelphia  & 
E.  R.  Co.  141  Pa.  407,  21  Atl.  645.       12:  220 

47.  The     length    of    a    railroad,    or    the^- 
amount  of  its  business,  does  not  afi'ect  its- 
right  to  retain  its  right  of  way  as  against  a 
railroad  which  subsequently  desires  to  ap- 


1136 


EMINENT  DOMAIN,  I.  c,  2. 


propriate  a  portion  of  it,  although  the 
amount  of  damages  may  be  thereby  affected. 
Seattle  &  M.  R.  Co.  v.  State,  7  AVash.  150, 
34  Pae.  551,  22:  217 

48.  A  claim  of  the  right  to  lay  four  tracks 
on  another  railroad's  right  of  way  may  be 
«lenied  by  the  court,  where  the  place  is  prac- 
tically a  street,  and  the  whole  room  appli- 
cable to  railroad  purposes  is  extremely  lim- 
ited, and  allowing  two  tracks  will  give  bet- 
ter facilities  than  the  other  road  enjoys.    Id. 

49.  A  railroad  to  be  constructed  along  the 
side  of  a  mountain  may  be  permitted  to 
condemn  for  its  right  of  way  a  portion  of 
the  right  of  way  of  a  former  road,  where 
such  portion  is  occupiwl  by  unexcavated 
rock  and  dirt,  and  there  is  no  immediate 
prospect  of  the  other  road  needing  it,  and 
its  tracks  are  to  be  placed  far  enough  away 
from  the  others  so  as  not  to  interfere  with 
its  operations;  while  that  location  is  by  far 
the  most  practicable  that  can  be  found,  any 
other  route  would  impinge  as  much  upon  the 
other  road  as  this  does,  would  affect  many 
mining  operations,  would  be  enormously  ex- 
pensive, less  convenient,  and  the  one  chosen 
manifestly  best  serves  the  interests  of  the 
public.  Butte.  A.  &  P.  R.  Co.  v.  Montana 
IT.  R.  Co.  16  Mont.  504.  41  Pac.  232,  248. 

31 :  298 

50.  Whore  one  railroad  company  has  ac- 
quired land  for  its  road,  another  railroad 
company  cannot  take  a  part  of  the  same 
land  for  its  track  for  the  reason  that  it 
would  avoid  a  sharp  cim'e  in  the  road  which 
it  purposes  to  build,  which  would  be  a  con- 
venience, but  not  a  necessity,  to  it.  Barre 
R.  Co.  V.  Montpelier  &  W.  R.  R.  Co.  61  Vt. 
1,   17  Atl.  923,  4:  785 

51.  Land  belonging  to  a  railroad  company 
by  way  of  easement,  and  not  actually  in  use 
by  it  or  not  actually  necessary  for  the  enjoy- 
ment of  its  franchise,  is.  with  respect  to  the 
power  of  eminent  domain,  upon  the  same 
footing  as  the  land  of  an  individual  citizen, 
if  there  is  a  necessity  that  it  should  be  tak- 
en for  another  use.  Butte.  A.  &  P.  R.  Co. 
V.  Montana  U.  R.  Co.  16  ilont.  504.  41  Pac. 
232.  248,  :^1 :  298 

52.  Absolute  necessity  is  not  necessary  to 
■enable  one  railroad  to  condemn  a  portion  of 
another's  right  of  way  for  its  tracks,  under 
a  statute  forbidding  such  appropriation  un- 
less the  use  to  which  it  is  to  be  applied  is 
a  "more  necessary  public  use."  Id. 

53.  A  case  of  necessity  is  presented,  with- 
in Mont.  Cotle  Civ.  Proc.  §  fiOl.  permitting 
one  railroad  company  to  condemn  n  portion 
of  the  right  of  way  of  another,  when  the 
latter,  traversing  a  mountain  side  in  a  min- 
ing section,  has  within  its  right  of  way 
tracks  unused  and  in  all  reasonable  probabil- 
ity not  necessary  for  future  use.  and  another 
road  seeking  the  same  objective  point  is 
obliged  to  take  a  part  of  such  right  of  way 
to  avoid  circuity,  a  different  grade,  much 
greater  cost,  and  serious  damage  to  mining 
properties,  and  would  be  obliged  in  any 
«'vent  to  parallel  the  adversary  road  a  part 
of  the  wa\'.  Id. 
IFor  crossing  of  other  railroad. 

54.  The  statutorv  right  of  one  railroad  t(. 


cro.ss  another  does  not  apply  to  a  commin- 
gling of  tracks  for  400  feet  or  more  along 
a  30-foot  right  of  way,  making  it  impracti- 
cable to  operate  either  track  or  set  of  tracks 
when  any  one  of  the  other  tracks  is  in  ac- 
tual use.  Seattle  &  ]M.  R.  Co.  v.  State,  7 
Wash.  150,  34  Pac.  551,  22:  217 

55.  i'he  convenience  of  a  railroad  to  be 
crossed,  and  the  probability  of  some  other 
means  of  accomplishing  the  same  purpose, 
may  be  considered  in  determining  the  neces- 
sity of  appropriating  any  part  of  the  right 
of  way  by  another  company,  where  the  stat- 
ute requires  the  judge  to  be  satisfied  by 
competent  proof  of  such  necessity.  Id. 

56.  Side  tracks  built  on  private  property 
for  the  convenience  of  a  certain  large  branch 
of  a  company's  freight  business,  under  a  li- 
cense Avnich  the  owners  of  the  land  may  re- 
voke at  pleasure,  which  are  used  incessantly 
and  are  of  great  importance  to  the  company, 
are  to  be  considered  the  same  as  the  main 
track,  so  far  as  the  right  of  another  railroad 
company  to  cross  them  is  concerned.  Barre 
R.  Co.  V.  Montpelier  &  W.  R.  R.  Co.  61  Vt. 
1,  17  Atl.  923,  4:  785 
For  street. 

57.  A  street  may  be  opened  across  depot 
grounds  of  a  railroad  company,  under  gen- 
eral authority  conferred  on  cities  and  towns 
for  opening  streets  and  condemning  lands 
for  such  purposes  without  any  express  pro- 
vision as  to  crossing  railroads,  where  the 
inconvenience  to  the  comjiany  will  be  incon- 
siderable as  compared  with  the  benefit  to 
the  public.  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Starkweather.  97  Iowa,   159,  66  N.  W.   87, 

31:  183 

58.  Streets  can  be  laid  out  across  a  rail- 
road freight  yaixi  and  tracks  notwithstand- 
ing the  fact  that  the  second  public  use  may 
be  inconsistent  with  the  first,  imder  Ind. 
act  March  6,  1891  (Ind.  Rev.  Stat.  1894,  § 
3623),  authorizing  the  common  council  to 
lay  out  streets  and  condemn  therefor  the 
right  of  way  or  other  lands  of  any  railroad 
company,  whether  "such  lands  be  occupied 
and  used  or  not."  Terre  Haute  v.  Evans- 
ville  &  T.  H.  R.  Co.  149  Ind.  174,  46  N.  E. 
77.  37:  189 
For  elevator. 

59.  A  statute  giving  the  exclusive  right 
of  selecting  a  site  for  a  public  elevator  or 
warehouse  on  a  railroad  right  of  way  to  the 
party  seeking  to  condemn  it  for  such  use, 
without  giving  the  railway  company  any 
right  to  submit  to  the  court  the  question 
whether  the  taking  of  the  particular  piece 
of  giound  sought  is  necessary  for  a  public 
use.  is  not  invalid,  since  the  legislature  can 
determine  wiiether  property  already  appro- 
priated to  a  public  use  may  be  taken  for  an- 
other public  use.  Re  Stewart's  Application, 
65  Minn.  515,  68  N.  W.  208,  33:  427 
For  telegraph  line. 

Measure  of  Damages  for.  see  Damages,  460- 
462. 

60.  The  condemnation  of  the  right  to  con- 
struct a  telegraph  line  along  a  railroad  right 
of  way  is  not  prevented  by  the  fact  that  a 
right  of  way  for  the  line  might  be  obtained 
over  other  property  or  in  other  ways.     Ft. 


EMINENT  DOMAIN,  I.  d,  1. 


1187 


Woitli  &  R.  G.  R.  Co.  V.  Southwestern  Teleg. 
&  Teleph.  Co.  9(5  Tex.  IfiO.  71  S.  W.  270. 

GO:  14.") 
(51.  Authorit}'  to  condonui  the  right  to 
construct  a  telegraph  line  along  a  railroad 
right  of  way  is  conferred  by  a  statute  per- 
mitting the  condemnation  of  any  land.s, 
whether  owned  by  private  persons  in  fee  or 
in  any  less  estate,  or  by  any  corporation, 
whether  acquired  by  purchase  or  by  virtue 
of  any  provision  in  the  charter  of  such  cor- 
poration. Id. 

62.  j\  condemnation  of  the  right  of  way 
for  a  telegraph  line  over  a  railroad  right  of 
way  is  authorized  bv  Tenn.  Acts  1885,  chap. 
1.35  (Shannon's  Code,  §§  1868,  1871),  confer- 
ring the  right  to  take  the  propert^^  or  ease- 
ments of  private  corporations  for  public  pur- 
poses and  internal  improvement.  Mobile  & 
O.  R.  Co.  v.  Postal  Teleg.  Cable  Co.  101  Tenn. 
62,  46  S.  W.  571,  41:  403 
For  reservoir  site. 

63.  A  company  seeking  to  acquire  for  a 
1-  servoir  site,  by  right  of  eminent  domain, 
land  claimed  by  a  railroad  company  cannot, 
for  the  purpose  of  defeating  the  latter's 
right  in  the  property,  attack  its  corporate 
existence,  or  assert  that  it  has  not  sufficient- 
ly complied  with  the  law  to  give  it  a  right 
to  the  propertv.  Denver  Power  &  Irrig.  Co. 
V.  Colorado  &  S.  R.  Co.  30  Colo.  204,  69  Pac. 
668,    '  60:  383 

04.  A  reservoir  company  cannot  take,  b.y 
right  of  eminent  domain,  land  devoted  to  the 
purposes  of  a  railroad,  unless  such  taking  is 
required  by  public  necessity;  and  the  facts 
that  the  site  is  the  only  available  one  on 
the  .stream,  and  that  the  railroad  company 
might  procure  an  equally  available  location 
for   its  purposes  elsewhere,   are  immaterial. 

Id. 
For  wharves. 

65.  The  condemnation  of  land  for  a  public 
wharf  is  not  prevented  by  the  fact  that  it 
is  alieady  in  use  by  a  common  carrier  as  a 
landing  place  in  connection  with  its  business 
as  such  carrier.  Diamond  .To  Line  Steamers 
V.  Davenport,  114  Iowa.  432.  87  N.  W.  399. 

54 :  859 

d.  For  Wh«t  Purpose. 
1.  In  General. 

Beet  Sugar  Bounty  as  for  Private  Use,  see 

Bounties,  1. 
Review    of   Ijegi.slative    Decision    as    to,    see 

(Courts.  1.  c,  2. 
Restricting  Height  of  Building  Adjacent   to 

Public  Square,  see  Public  Moneys,  17. 
Question  for  .lury  as  to,  see  Trial.  .509,  510. 
For  Editorial  Notes,  see  infra.  V.  §§  3,  4,  7. 

66.  The  taking  of  money  by  a  private  cor- 
poration created  to  administer  a  public  char- 
ity is  not  a  taking  of  property  for  a  public 
Tise  which  may  be  authorized  under  the 
power  of  eminent  domain.  Carv  Libraiv  v. 
Bliss.  151   Mass.  .364.  25  X.  E.  92.  7:' 765 

67.  The  taking  of  property  which  is  held 
by  one  person  for  a  public  use  by  another 
peison.  to  be  held  in  the  same  manner  for 
preciselv  the  same  public  use,  is  not  a  mat- 

L.R.A.   Dig.     72. 


ter  of  such  public  necessity  that  it  can  be 
authorized  by  the  legislature  under  the 
power   of  eminent   domain.  Id. 

68.  An  enterprise  is  not  shown  to  be  a 
private  one  merely  by  the  fact  that  it  was 
set  on  foot  for  the  profit  of  the  corporators. 
Kvan  V.  Louisville  &  N.  Terminal  Co.  102 
Tenn.  Ill,  50  S.  W.  744,  45:  303 

69.  That  a  particular  use  will  be  of  ben- 
efit to  the  public  does  not  alone  make  it 
a  public  use,  within  the  meaning  of  a  consti- 
tutional provision  that  private  property 
shall  be  taken  only  for  public  use.  Healy 
Lumber  Co.  v.  Morris,  33  Wash.  490,  74  Pac. 
681,  63:  820 

70.  To  constitute  a  public  use  for  which 
private  property  may  be  taken  by  right  of 
eminent  domain,  there  must  be  a  use,  or 
right  to  use,  by  the  public  or  some  limited 
portion  of  it,  and  not  merelj'  a  public  utility 
or  advantage  resulting  from  the  use.  Ams- 
perger  v.  Crawford,  101  Md.  247,  61  Atl.  413, 

70:  497 

71.  Neither  mere  public  convenience,  nor 
mere  public  welfare,  will  justify  the  exer- 
cise of  the  right  of  eminent  domain.  Brown 
V.  Gerald,  100  Me.  351,  61  Atl.  785,  70:  472 
Right  to  take  foT  private  use  generally. 
Review    of   Legislative   Decision   as   to,    see 

Courts.  159. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

72.  Private  property  cannot  be  taken  for 
a  private  use  under  a  constitutional  pro- 
vision that  such  property  shall  not  be  taken 
or  damage<l  for  public  use  without  just  com- 
pensation. Gavlord  v.  Sanitary  District,  204 
III.  576,  68  N.'E.  522,  '  63:582 

73.  A  constitutional  provision  forbidding 
the  taking  of  private  property  for  public  use 
without  compensation  forbids,  by  implica- 
tion, the  taking  of  such  property  for  private 
use.  Rockingham  County  Light  &  P.  Co. 
V.  Hobbs,  72  N.  H.  531,  48  Atl.  46.       66:  581 

74.  The  legislature  has  no  power  to  au- 
thorize the  taking  of  private  propertj'  for  a 
private  use,  nor  to  compel  the  payment  of 
assessments  for  the  construction  of  any  pub- 
lic improvement  which  furthers  private  in- 
terests onlv.  State  ex  rel.  Utick  v.  Polk 
Countv  Comrs.  87  Minn.  325,  92  N.  W.  216, 

60:161 

75.  The  taking  of  private  property  for 
private  use  is  impliedly  forbidden  by  a  con- 
stitutional provision  that  the  legislature 
shall  enact  no  law  authorizing  private  prop- 
erty to  be  taken  for  public  use  without  just 
compensation  being  first  paid  or  tendered. 
Arnsperger  v.  Crawford.  101  Md.  247,  61  Atl. 
413,  70:  497 
Private  roads. 

For  Editorial  Notes,  see  infra,  V.  §  4. 

76.  A  statute  permitting  the  condenma- 
tion  of  private  property  for  the  purpose  of. 
establishing  a  private  road  or  highway  is  un- 
constitutional. Clark  V.  Mitchell  Countv 
Comrs.  69  Kan.  542,  77  Pac.  284.  66:  965 

77.  The  condemnation  of  land  for  a  pri- 
vate way  cannot  be  authorized  by  the  leg- 
islature. Hence,  the  Indiana  act  of  March 
9.  1889.  which  attempts  to  do  .so.  is  void. 
Logan  v.  Stogdale,  123  Ind.  372,  24  N.  E. 
1,3.5,  8:  58 


1138 


EMINENT  DOMAIN,  I.  d,  1. 


78.  The  acquisition  of  a  mere  private  way 
is  not  a  purpose  for  which  the  right  to  ex- 
ercise the  power  of  eminent  domain  may  be 
delegated,  although  the  way  is  intended  to 
connect  a  private  estate  with  a  public  high- 
way. Arnsperger  v.  Crawford,  101  Md.  247, 
61  Atl.  413,  70:  497 

79.  Constitutional  authority  to  acquire  an 
easement  over  land  for  a  private  way  of 
necessity  does  not  empower  one  landowner 
to  condemn  a  right  of  way  over  his  neigh- 
bor's property  for  the  purpose  of  getting 
his  logs  and  timber  to  market.  Healy  Lum- 
ber Co.  V.  Morris,  33  Wash.  490,  74  Pac.  681, 

63:  820 

80.  A  statute  authorizing  the  condemna- 
tion of  land  for  a  private  road  from  lands 
which  are  shut  out  and  cut  off  from  a  pub- 
lic highway,  giving  an  easement  to  the  own- 
er of  such  lands,  who  is  required  to  pay 
damages,  is  unconstitutional  as  authorizing 
the  taking  of  private  property  for  private 
use.  Welton  v.  Dickson,  38  Neb.  767,  57  N. 
W.  559,  22:  496 

81.  Condemnation  of  land  for  a  private 
road  to  be  laid  out  upon  the  application  of 
a  particular  individual,  and  paid  for  and 
kept  in  repair  by  him,  is  for  a  public  pur- 
pose Avhere  the  road  is  in  fact  for  public 
use  bv  all  who  desire  to  use  it.  Latah  Coun- 
ty v.  Peterson,  3  Id.  398,  29  Pac.  1089,  16:  81 

82.  T]\e  acquisition  of  an  easement  over 
land  for  the  transportation  to  market  of 
logs  of  a  private  owner  is  within  a  consti- 
tutional provision  that  "private  property 
shall  not  be  taken  for  private  use,  and  mak- 
ing the  question  whether  or  not  a  contem- 
plated use  is  private  one  for  the  determina- 
tion of  the  courts.  Healv  Lumber  Co.  v. 
Morris,  33  Wash.  490,  74  Pac.  681,  63:  820 
Library. 

83.  Land  needed  for  an  addition  to  a  free 
library  building  which  is  located  in  a  pub- 
lic park  may  be  taken  under  statutory  au- 
thority to  exercise  the  right  of  eminent  do- 
main to  secure  land  for  a  park.  Laird  v. 
Pittsburg,  205  Pa.  1.  54  Atl.  324,       61:  332 

84.  A  library  does  not  cease  to  be  public, 
so  as  to  prevent  the  taking  of  property  by 
eminent  domain  for  its  enlargement,  by  the 
fact  that  one  half  of  its  directors  are  ap- 
pointed by  private  persons,  where  it  is  lo- 
cated on  public  land,  and  the  public  appoints 
the  other  half.  Id. 
Elevators  or  warehouses. 

85.  Warehouses  or  public  elevators  only 
are  authorized  by  Minn.  Laws  1893.  chap.  64 
(Minn.  Gen.  Stat.  1894.  §§  7724-9),  providing 
for  the  condemnation  of  property  for  a 
warehouse  or  elevator  "for  the  purchase, 
Bale,  shipment,  or  storage  of  grain  for  the 
public  hire."  Re  Stewart's  Application,  65 
Minn.  515,  68  N.  W.  208.  33:  427 

86.  A  condemnation  of  the  easement  for 
the  maintenance  of  a  public  eleviitor  for  a 
fixed  term  on  a  railroad  right  of  way,  given 
by  ^linn.  Laws  1893.  chap.  64.  is  not  limited 
to  elevators  not  yet  constructed,  but  may  be 
liiid  for  one  which  has  been  erected  under  a 
license  which  has  been  revoked.  Id. 
Bridges. 

87.  A  ra-ilroad  bridge  is  within  the  provi- 


sions of  a  statute  permitting  the  construc- 
tion of  bridges  for  public  use.  Southern  L 
&  M.  Bridge  Co.  v.  Stone,  174  Mo.  1.  73  S. 
W.  453,  63:  301 

88.  The  power  of  eminent  domain  may  be 
exercised  to  secure  property  needed  for  the- 
construction  and  maintenance  of  a  toll 
bridge.  j^^ 
Parks  and  boulevards. 

See  also  supra,  83. 

89.  The  legislature  may  authorize  a  munic- 
ipal corporation  to  condemn  for  park  pur- 
poses and  boulevard  land  near  to,  but  out- 
side of,  its  corporate  limits.  Memphis  v. 
Hastings,  113  Tenn.  142,  86  S.  W.  609. 

69:  750- 

90.  The  condemnation  of  land  for  a  boule- 
vard connecting  public  parks  is  not  unlaw- 
ful on  the  ground  that  it  is  for  mere  con- 
venience or  pleasure,  not  for  necessity.  Id. 
Public  mills  and  machinery. 

91.  The  legislature  cannot  authorize  the- 
condemnation  of  private  property  for  the 
erection  of  public  mills  and  machinery  gen- 
erally, without  anything  to  show  what  is- 
meant  by  a  public  mill,  or  anything  to  give 
the  public  any  interest  in  a  mill  after  it  is 
erected.  Gaylord  v.  Sanitary  District,  204 
111.  576,  68  N.  E.  522,  63:  582- 
Cemetery. 

92.  The  power  of  eminent  domain  cannot 
be  given  to  a  corporation  formed  for  the- 
purpose  of  establishing  a  rural  cemetery  and 
providing  for  its  care  and  maintenance, 
where  the  land  is  to  be  under  its  absolute- 
control,  and  it  may  sell  lots,  at  whatever 
price  may  be  agreed  on,  to  private  individ- 
uals for  burial  purposes,  or  for  any  other 
purposes,  if  in  its  judgment  the  land  is  not 
needed  for  burial  purposes.  Portage  Twp. 
Bd.  of  Health  v.  Van  Hoesen,  87  Mich.  533, 
49  N.  W.  894,  14:  114 
Generation,  distribution,  and  use  of  electric- 
ity. 

93.  The  generation  of  electricity  by  water 
power  for  the  operation  of  a  Railroad  is  not 
a  public  use  for  which  property  may  be  tak- 
en by  eminent  domain,  where  there  is  noth- 
ing which  binds  the  petitioner  to  serve  the 
railroad,  or  to  give  equal  advantages  to  all. 
Avery  v.  Vermont  Electric  Co.  75  Vt.  2.35,  54- 
Atl.  179,  59:  817 

94.  The  collection,  storing,  and  distribu- 
tion of  electricity  for  the  use  of  all  who  may 
have  need  of  it  upon  equal  and  reasonable- 
terms  is  a  public  use,  so  as  to  justify  an  ex- 
ercise of  the  power  of  eminent  domain  for 
the  acquisition  of  a  right  of  way  for  the  dis- 
tributing wires.  Rockingham  Countv  Light 
&  P.  Co.  V.  Hobbs,  72  N.  H.  531,  58  Atl.  40. 

66:  581 
05.  The  mere  creation  and  distribution  of 
piiwcr  for  manufacturing  enterprises  is  not 
a  public  use  which  will  justify  an  exercise- 
of  the  power  of  eminent  domain.  Brown  v. 
Gerald.  100  Me.  351,  61  Atl.  785,  70:  472' 

90.  The  furnishing  of  electric  power  for 
iiKuiufactnring  purposes  does  not  become  a 
public  use,  so  as  to  justify  the  exercise  of 
the  power  of  eminent  domain  in  its  behalf, 
on  the  theory  that  the  one  generating  it 
inav.  because  of  his  franchises,  be  regarded 


EMINENT  DOMAIN    I.  d,  3. 


1139 


as  a  public  servant;  espocially  since  the  ca- 
pacity for  service  is,  of  necessity,  limited, 
and  cannot  extend  to  the  general  public, 
and,  therefore,  the  service  is  a  matter  of 
grace,  and  not  of  right.  Id. 

Electric  company. 
For  Telephone  Lme,  see  Telephones,  4. 

96a.  Authority  to  an  electric  company  to 
take  land  for  the  establishment  of  its  plant 
includes  the  land  necessary  for  its  poles  and 
wires.  Brown  v.  Gerald,  100  Me.  351,  61  Atl. 
785,  70:  472 

Electric  light. 

Review   of   Legislative   Decision   as  to,   see 
Courts,  165. 

97.  To  justify  the  taking  of  land  for  a 
right  of  way  for  a  line  to  suppfju  electric 
light,  it  must  be  shown  that  the  line  is  in- 
tended for  that  purpose,  where  other  pur- 
poses are  included  in  the  grant  of  power, 
which  the  legislature  had  no  constitutional 
authority  to  authorize.  Brown  v.  Gerald,  100 
Me.  351,  61  Atl.  785,  70:  472 

2.  Railroads. 

For  Railroad  Bridge,  see  supra,  87. 
Generation  of  Electricity  for  Operation  of, 

see  supra,  93. 
For  Editorial  Notes,  see  infra,  V.  §  6. 

98.  The  establishment  of  a  railroad  as  a 
purely  private  enterprise  cannot  be  legiti- 
mately aided  by  the  power  of  eminent  do- 
main. Maginnis  v.  Knickerbocker  Ice  Co. 
112  Wis.  385,  88  N.  W.  300,  69:  833 

99.  The  property  of  railroad  corporations, 
80  far  as  concerns  the  ownership  thereof, 
and  the  profit  or  gain  to  be  made  from  their 
use,  is  to  all  intents  and  purposes  private 
propert}',  although  applied  to  a  use  in  which 
the  public  have  an  interest.  Pittsburg,  W. 
&  K.  R.  Co.  V.  Benwood  Iron  Works,  31  W. 
Va.  710,  8  S.  E.  453,  2:  680 

100.  Whether  the  use  of  land  taken  by  a 
railway  company  under  the  power  of  emi- 
nent domain  is  public  or  private  depends 
upon  the  right  of  the  public  to  use  the  road 
and  to  require  the  corporation  as  a  common 
carrier  to  transport  freight  or  passengers, 
and  not  upon  the  amount  of  business.  Ket- 
tle River  R.  Co.  v.  Eastern  R.  Co.  41  Minn. 
461,  43  N.  W.  4€9,  6:  111 

101.  As  far  as  the  public  is  concerned, 
when  what  railroad  corporations  need  is  for 
"public  use,"  they  have  the  right  to  invoke 
the  exercise  of  eminent  domain;  but,  in  so 
far  as  that  which  concerns  them  as  to  their 
private  interests,  their  profits  and  gains,  are 
concerned,  they  stand  as  individuals,  or 
merely  as  private  corporations,  in  which  the 
public  has  no  concern,  and  for  such  private 
purposes  cannot  call  into  exercise  the  power 
of  eminent  domain.  Pittsburg,  W.  &  K.  R. 
Co.  V.  Benwood  Iron  AVorks,  31  W.  Va.  710, 
8   S.  E.  453,  2:  680 

102.  The  right  of  a  railroad  company  or- 
ganized chiefly  for  the  benefit  of  a  coal  com- 
pany, to  condemn  land  for  the  road,  is  not 
precluded  by  Mo.  Rev.  Stat.  ^889,  §  1119, 
giving  the  coal  company  the  right  to  have  a 
switch  connection  with  an  existing  railroad, 
and  §§  9559  and  9560.  providing  for  the  con- 


struction of  a  tramway  for  such  coal.  Kan- 
sas &  T.  Coal  Rv.  v»  Northwestern  Coal  & 
M.  Co.  161  Mo.  288,  61  S.  W.  684,       51:  036 

103.  A  railroad  of  a  regularly  organized 
and  chartered  railroad  company  is  a  public 
railroad  for  which  the  power  of  eminent  do- 
main may  be  exercised,  notwithstanding  the 
fact  that  the  road  is  short  and  built  chief- 
ly for  the  purpose  of  conveying  the  product 
of  a  coal  company  which  is  composed  of  sub- 
stantially the  same  persons  that  organized 
the  railroad  company,  since  the  railroad 
company,  under  Mo.  Const,  art.  12,  §  14,  will 
be  a  common  carrier  obliged  to  serve  all 
people  alike.  Id. 

104.  That  the  ownership  of  all  the  quar- 
ries reached  by  a  railroad  organized  to 
transport  limestone  from  the  quarries  in  a 
particular  town  to  the  kilns  becomes  vested 
in  one  person,  does  not  destroy  the  public 
character  of  the  road.  Ulmer  v.  Lime  Rock 
R.  Co.  98   Me.   579,  57  Atl.   1001,       66:  387 

105.  The  exercise  of  the  right  of  eminent 
domain  to  acquire  land  for  a  railroad  is  not 
precluded  by  the  facts  that  the  road  is 
owned  by  a  private  corporation  and  is  built 
for  the  benefit  of  private  mines  and  ore 
houses,  where  the  state  laws  make  all  rail- 
ix)ads  public  highways,  open  to  use  by  all 
who  wish  to  do  so.  Butte,  A.  &  P.  R.  Co.  v. 
Montana  U.  R.  Co.  16  Mont.  504,  41  Pae.  232, 
248,  31 :  298 

106.  A  railroad  chartered  to  extend  from  a 
certain  town  past  a  sawmill,  through  rough, 
mountainous,  timbered,  and  sparsely  settled 
country,  to  the  middle  of  a  certain  section 
on  lands  of  the  United  States,  without  going 
near  any  other  town,  city,  or  settlement  or 
other  railroad,  but  wliich  has  been  built  only 
from  the  sawmill  about  2  miles  from  the 
town,  for  oVa  miles  into  the  timbered  region, 
and  has  no  freight  or  passenger  depots,  pas- 
senger coaches,  or  freight  cars,  except 
trucks,  and  has  never  charged  passengers 
any  fare,— is  a  public  way  for  which  emi- 
nent domain  may  be  exercised,  where  it  is 
not  shown  that  it  was  intended  simply  as  a 
logging  road,  and  everyone  having  occasion 
to  use  it  as  a  passenger  or  for  the  transpor- 
tation of  freight  has  a  right  to  require  the 
service.  Bridal  Veil  Lumbering  Co.  v.  .lohn- 
son,  30  Or.  205,  46  Pac.  790,  34:  368 

107-8.  One  seeking  a  right  of  way  for  a 
railway  which  he  intends  to  sell  as  soon  as 
it  is  procured  is  not  in  charge  of  a  public 
use  so  as  to  be  entitled  to  exercise  the  right 
of  eminent  domain.  Beveridge  v.  Lewis,  137 
Cal.  619,   70  Pac.   1040,  59:  581 

Street  railway  power  house. 

109.  An  attempt  by  a  street  railway  com- 
pany to  take  land  for  a  power  house  and 
coal  pockets  in  a  city  5  miles  from  its  lines, 
in  which  it  has  no  authority  to  run  cars,  is 
for  its  private  benefit,  and  not  for  public 
use,  and  is  therefore  not  within  statutory 
permission  to  take  by  eminent  domain  land 
necessary  for  its  use.  Re  Condemnation  of 
Land  by  Rhode  Island  Suburban  R.  Co.  22 
R.  T.  4,-i7,  48  Atl.  591,  52:  879 
Terminals. 

110.  The  provision  of  a  railroad  terminal 
for  the  accommodation  of  all  railroads  con- 


1140 


EMINENT  DOMAIN,  I.  d,  2. 


cent  rated  at  a  city,  "to  facilitate  the  public 
convenience  and  the  safetj'  of  the  transmis- 
sion of  railroad  passengers  and  freight,"  is 
a  public  use,  to  acquire  necessary  property 
for  which  the  power  of  eminent  domain  may 
be  exercised.  Ryan  v.  Louisville  &  N.  Ter- 
minal Co.  102  Tenn.  Ill,  50  S.  W.  744, 

45:  303 

111.  That  the  charter  of  a  corporation  or- 
ganized to  construct  a  union  terminal  for  all 
railroads  entering  a  city  fixes  no  rates  to  be 
charged  by  it  for  the  use  of  its  tracks  does 
not  prevent  the  enterprise  from  being  a  pub- 
lic one.  Id. 

112.  The  incidental  right  of  a  corporation 
organized  under  Tenn.  act  Gen.  Assem.  1893, 
chap.  11,  to  furnish  and  provide  a  hotel,  res- 
taurant, and  news  .stand  in  its  union  depot, 
does  not  convert  the  undertaking  into  a 
mere  private  enterprise,  .so  as  to  invalidate 
the  extension  to  the  corporation  of  the  right 
of  eminent  domain  as  respects  its  proper 
terminal  purposes.  Id. 
Branch,  spur,  or  side  tracks. 

Fur  Editorial  Notes,  see  infra,  V.  §  6. 

113.  Evidence  that  all  who  wish  (o  avail 
themselves  of  the  proposed  switch,  branch 
road,  or  lateral  work  can  do  so,  is  not  suffi- 
cient to  show  that  the  use  of  the  work  will 
be  for  the  benefit  of  the  public.  Pittsl)urg, 
W.  &  K.  R.  Co.  v.  Benwood  Iron  Works,  31 
W.  Va.  710.  8  S.  E.  453,  2:  fiSO 

114.  A  railroad  company  cannot  exercise 
the  right  of  eminent  domain  to  establish  a 
side  track  merely  for  the  purpose  of  a  pri- 
vate shipping  station  for  an  individual  ship- 
per. St.  Louis.  1.  M.  &  S.  R.  Co.  v.  Pettv, 
^^7  Ark.  359.  21  S.  W.  884.  20:  4.34 

11.").  If  side  tracks  are  necessary  to  facil- 
itate and  hasten  the  business  offered  at  a 
certain  pomt  to  a  railroad  company,  the  fact 
that  they  will  constitute  an  especial  advan- 
tage to  a  particular  shipper  will  not  defeat 
the  right  of  eminent  domain  to  procure  the 
rigiit   of  way.  Id. 

116.  That  the  purpose  of  taking  hind  by 
a  railroad  company  for  a  8i)ur  tiack  is  mere- 
ly to  reach  a  particular  industry  and  connect 
it  with  the  markets  along  the  road  will  not 
prevent  the  legislature  from  declaring  it  to 
be  a  public  one,  for  which  the  power  of  emi- 
nent domain  mav  be  emploved.  Re  Chicago 
&   N.  W.  R.  Co.' 112  Wis.   i.  87  N.  W.  849, 

56:  240 

117.  The  right  to  take  land  for  a  spur 
track  to  reach  a  large  ice  industry,  which 
track  is  to  be  operated  for  the  benefit  of  all 
persons  desiring  service  without  discriiuina- 
tion.  is  not  defeated  by  the  fact  that  a  single 
cor.cerii  intends  to  furnish  a  large  amount  of 
the  freight  to  be  transported  over  the  road, 
am!  bear  a  large  part  of  the  expense  of  es- 
tablishing the  spur  track.  Id. 

lis.  The  magnitude  of  the  interests  in- 
volved may  properly  become  a  determining 
factor  in  .sustaining  the  right  of  a  railroad 
in  Montana  to  construct  branches  to  mines 
and  mining  works  as  jjublic  uses,  by  virtue 
of  th"  law  of  eminent  domain.  Butte.  A.  & 
P.  n.  Co.  v  Montana  I'.  R.  Co.  Hi  .Mont.  .^04. 
41    Vac.  232,  248,  31:  298 


119.  The  connection  of  mines  and  ore 
houses  with  a  market  is  a  public  use  in 
Montana,  which  will  authorize  a  railroad 
company  to  acquire  a  right  of  way  for  that 
purpose  by   right  of  eminent  domain.       Id. 

120.  A  spur  track  from  the  line  of  a  rail- 
road witli  which  it  does  not  connect  e.xcept 
at  one  point,  running  to  mills  belonging  to 
private  concerns  and  operated  for  private 
profit,  is  not  for  a  public  use  which  will 
authorize  the  condemnation  of  land  for  a 
right  of  way.  Kyle  v.  Texas  &  N.  O.  R.  Co. 
(Tex.  App.)  No.  Off.  Rep..  4:  275 
Pittsburg.  W.  &  K.  R.  Co.  v.  Benwood 
Iron  Works,  31  W.  Va.  710,  8  S.  E.  453. 

2:  (>80 

121.  That  the  primary  purpose  of  a 
branch  track  to  a  stone  quarry  is  the  accom- 
modation of  the  owner  of  the  quarry  will 
not  prevent  the  exercise  of  the  right  of 
eminent  domain  for  the  acquisition  of  a 
rig'ht  of  way  if  the  track  is  in  fact  intended 
for  the  use  of  the  public,  which  will  be  en- 
titled to  its  use  whenever  the  necessity  for 
such  use  arises.  Ulmer  v.  Lime  Rock  R.  Co. 
98  Me.  579.  57  Atl.  1001.  06:  387 

122.  That  all  the  stock  of  a  railroad 
company,  except  that  necessary  to  qualify 
the  directors,  is  owned  by  the  owner  of  a 
stone  quarry,  does  not  make  the  construc- 
tion of  a  branch  to  such  quarry  so  far  a 
private  enterprise  as  to  preclude  the  exer- 
cise of  the  power  of  eminent  domain,  if  the 
purpose  of  such  constr\iction  is  declared  by 
the  corporation  to  be  the  accommodation  of 
the  public.  Id. 

123.  The  exercise  by  a  railroad  company 
of  the  power  of  eminent  domain  to  acquire 
a  right  of  way  for  a  branch  track  to  a 
stone  quarry  is,  in  effect,  a  declaration  that 
the  branch  is  subject  to  the  use  of  the  pub- 
lic,   and    to   public   control.  Id. 

124.  The  condemnation  of  a  right  of  way 
for  a  railroad  to  be  built  bj'  a  manufactur- 
ing company  to  connect  its  manufacturing 
establishment  with  another  railroad  may  be 
authorized  by  statute  under  S.  C.  Const, 
art.  1,  $  23,  declaring  that  private  propert.v 
shall  not  be  taken  or  applied  "'for  public 
use,  or  for  the  use  of  corporations,  or  for 
private  use."  without  consent  of  tlic  ow  ler, 
or  just  compensation,  but  providing  that 
law*  wiiv  secure  to  persons  or  corporations 
a  right  of  way  iv  works  of  internal  im- 
provement by  payment  of  ju.^t  compensa- 
tion. Ex  parte  Bacot,  36  S.  C.  125.  15  S.  E. 
204.  16:  586 

125.  The  power  of  eminent  domain  to  ob- 
tain land  for  side  tracks  of  a  railroad  com- 
pany is  not  exhausted  by  one  exercise  there- 
of. ■  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Pettv.  57 
Ark.  359.  21  S.  W.  884,  20:  434 
Relocating  railroad. 

See  also  supra,  125. 

For  Editorial  Notes,  see  infra.  V.  §  fi. 

126.  A  railroad  company  which  has  select- 
ed its  route  and  constructed  its  road  cannot 
subsetjuently  select  a  different  route  for  any 
distance,  on  the  ground  that  it  is  more  ad- 
vajitageons  than  the  original  line,  without 
legislative  authority,  where  its  charter 
makes  no  provision  for  a  subsequent  reloca- 


EMINENT  DOMAIN,  I.  d,  3. 


1141 


lion.     Lusl)v  V.  Kansa^s  Citv,  M.  &  B.  R.  Co. 
73  .Miss.  3G(i,  1!)  So.  239,       *  36:  510 

:?.  As    lo    Water   and    Water   Rights. 

(iciu'iation  of  Klectiicity  by   \Vater   Powit, 

see  supra.  93. 
Keview  hy  Court  a.s  to  Xeeessity  of  Taking. 

sec  Courts,   18(5. 
For  Editorial  Notes,  see  infra,  V.  §  4. 

127.  The  u.se  of  water  for  running  small 
juotors  for  light  niamifacturing  is  not  a 
public  use  for  which  tlie  water  can  be  taken 
to  the  detriment  of  millowners  on  a  stream 
which  is  the  source  of  a  water  supply,  even 
when  the  main  which  supplies,  the  water 
would  furnish,  when  not  reqiiir^l  for  fire 
purposes,  more  than  was  necessai'y  for  oth- 
er public  uses.  Re  Barre  Water  Co.  1)2  V^t. 
27.   20  Atl.    109,  9:  195 

128.  The  fact  that  water  from  the  main 
of  a  water  supply,  l)y  reason  of  the  high 
pressure  in  the  pipes,  would  be  wortli  mucli 
more  for  running  motors  than  for  supplying 
power  in  dams  on  the  stream  from  which 
the  water  supply  is  taken,  gives  no  right  to 
use  it  for  running  such  motors  for  private 
use  without  consent  of  the  owners  of  such 
dam.  Id. 
Floatage. 

129.  The  power  of  eminent  domain  cannot 
be  exercised  to  enable  each  person  desiring 
to  float  logs  in  a  stream  to  do  so  without 
the  acquisition  of  any  rights  on  the  part  of 
the  public.     Brewster  v.  J.  &  J.  Rogers  Co. 

(i9  X.  V.  73.  62  N.  E.   164,  58:  495 

Flowage. 
For  Editorial  Notes,  see  infra,  V.  §  3. 

130.  A  statute  authorizing  lands  to  be 
flowed  by  raising  a  pond  f'>r  the  culture  of 
useful  fishes  is  not  uncons'.itutional  on  the 
groun<l  that  the  land  is  Laken  for  mere 
private  use,  although  the  object  of  the  own- 
er oi  the  pond  is  merely  to  secure  his  own 
pleasure  and  profit.  Turner  v.  Nye,  154 
Mass.  579.  28  N.  E.  1048.  14:  487 
Drainage;  reclamation  of  flats. 
Infringement   of   .Judicial    Power   as   to,   see 

Constitutional    Law.  257. 
For  Editorial  Notes,  see  infra,  V.  §  5. 

131.  A  constitutional  prohibition  of  the 
taking  of  private  property  for  private  pur- 
poses is  not  applicable  to  a  statute  provid- 
ing for  the  drainage  of  large  tracts  of  land. 
.Mound  Citv  Land  &  S.  Co.  v.  Miller,  170  Mo. 
240.  70  S.  W.  721,  GO:  190 

132.  The  drainage  of  land  by  means  of 
the  organization  of  drainage  district's  under 
constitutional  authority  is  not  a  mere 
private  benefit,  to  aid  in  which  public  prop- 
erty cannot  be  appropriated.  Heffner  v. 
Cass  &  Morgan  Counties.  193  111.  439,  62  N. 
E.  201,  58:  353 

133.  A  general  plan  or  scheme  for  the  rec- 
lamation of  the  wet  or  marsh  lands  of  a 
state  for  agricultural  pur])oses  by  drainage 
is  a  public  use,  for  the  accomplishment  of 
which  the  power  of  eminent  domain  may 
be  exercised.  Sisson  v.  Buena  Vista  Coun- 
ly.  128  Iowa.  442.  104  N.  W.  454.         70:  440 

'  134.  The  reclamation  of  flats  situated  up- 
on  Boston  harbor  and  substantiallv  useless 


in  their  original  condition,  for  the  avowed 
purpose  of  improving  the  harbor  and  of 
providing  better  and  more  complete  accom- 
modations for  the  railroad  and  commercial 
interests  of  the  city  of  Boston,  bj'  filling 
such  Hats  with  solid  earth,  is  a  matter  of 
such  public  benefit  tliat  the  Hats  may  be 
taken  by  the  commoiAvealth  for  such  pur- 
p  )sc.  under  the  power  of  eminent  domain, 
notwithstanding  a  possible  pecuniary  benefit 
to  the  cominonwealth  may  be  contemplat- 
ed by  the  sale  of  the  Hats  when  filled. 
Hence,  ilass.  acts  1884,  chap.  290,  which  pro- 
vides for  such  taking,  is  not  unconstitu- 
tional as  autliorizing  the  taking  of  land  for 
a  use  not  public.  Mf>ore  v.  Sanford,  151 
Mass.  285,  24  X.  E.  323,  7:  151 

135.  Failure  expiessly  to  declaie  that  the 
public  welfare  is  intended  to  be  promoted 
by  a  stiitute  for  tiie  drainage  of  wet  and 
overflowed  lands  and  to  provide  for  the 
determination  of  that  question  by  the  coun- 
ty commissioners,  in  whom  is  vested  the 
power  to  construct  any  ditch  or  drain  upon 
a  petition  setting  forth  the  necessity  there- 
of, does  not  render  the  act  unconstitutional 
as  a  taking  of  private  property  for  private 
use,  where,  from  a  consideration  of  the 
wnole  statute,  it  is  apparent  that  the  legis- 
lature intended  to  provide  exclusively  for 
the  public  welfare,  and  ample  opportunity 
is  given  to  all  parties  interested  to  appear 
and  be  heard,  while  the  levying  of  assess- 
ments is  expressly  limited  to  public  ditches. 
State  ex  rel.  Utick  v.  Polk  Couutv  Comits. 
87  Minn.  325,  92  N.  ^V.  216,  '  (iO:  161 
Canals. 

136.  The  right  to  use  a  canal  for  the  con- 
veyance of  water  may  be  appropriatetl 
under  the  right  of  eminent  domain.  .Salt 
Lake  City  v.  Salt  Lake  City  Water  &  E.  P. 
Co.  24  -Ctah,  249,  67  Pac.  672.  61 :  648 

137.  The  rule  permitting  the  acijuisition 
of  an  easement  by  the  payment  of  perma- 
nent damages  for  injuries  done  to  adjoining 
property  by  the  construction  of  a  public 
work  is  applicable  in  favor  of  canal  com- 
|)anies.  Mullen  v.  Lake  Drummond  Canal 
&  W.  Co.   130  N.  C.  496,  41   S.  E.   1027, 

61 :  833 
Reservoir. 

Who   may   Object   to    Want    of   Power,   see 
supra,  6. 

138.  Authority  to  condemn  land  for  a 
reservoir  for  agricultural  and  milling  pur- 
po.ses  is  sufficient  to  cover  its  condemnation 
for  power,  manufacturing,  and  "other  bene- 
ficial uses  and  purposes,"  where  no  sugges- 
tion is  made  of  an  intended  use  which  is  not 
directly  or  indirectly  associated  or  connect- 
ed with  uses  expressly  authorized,  l^enver 
Power  &  Irrig.  Co,  v.  Colorado  &  S.  R.  Co. 
.30  C<»lo.  204,  69  Pac.  568,  (iO:  383 
Irrigation. 

139.  The  use  of  water  for  irrigating  pur- 
poses contemplated  by  Neb.  act  .March  27. 
1889,  is  a  "public  use"  for  which  private 
property  may  be  condemned  without  the 
owner's  consent.  Paxton  &  H.  Irrig.  C.  & 
L.  Co.  V.  Farmers'  &  M.  Irrig.  &  L.  Co.  45 
Neb.  884,  64  N.  W.  .343,  29:  a5.3 


il42 


EMINENT  DOMAIN,  I.  e. 


Carrying  water, 

140.  Condemnation  of  land  for  a  pipe  line 
by  a  water  supph-  company  formed  under 
general  laws,  to  convey  water  to  a  city, 
cannot  be  had.  where  it  is  not  shown  that 
the  company  has  a  legal  right  to  enter  upon 
or  condemn  land  in  such  city,  or  has  already 
acquired  the  right  to  construct  or  maintain 
any  waterworks  therein,  or  to  sell  or  dis- 
pose of  water  to  its  inhabitants,  since  the 
public  use  which  "ill  justify  condemnation 
depends  upon  the  disposition  of  the  water 
after  it  reaches  the  citv.  Wisconsin  Water 
Co.  V.  Winans,  85  Wis.'26,  34  X.  W.  1003. 

20:  662 

141.  The  right  of  way  to  carry  water  to 
operate  an  electric  light  plant  may  be  taken 
by  eminent  domain  under  the  Colorado 
Constitution,  which  allows  condemnation, 
among  other  things,  for  "flumes  or  ditches 
.  .  .  for  agricultural,  milling,  domestic, 
or  sanitary  purposes,"  and  expressly  gives 
a  right  of  way  across  public,  private,  and 
corporate  lands  for  ditches,  canals,  and 
flumes,  '"for  mining  and  manufacturing  pur- 
poses." Bell  V.  Lamborn.  18  Colo.  346.  32 
Pae.  980.  20:  241 
Harbor. 

142.  Although  the  presumption  is  that 
the  establishment  of  harbor  lines  is  for  a 
public  use  in  the  interest  of  navigation,  yet, 
if  the  record  shows  that  their  purpose  was 
to  prevent  a  new  bridge  from  being  marred 
by  the  erection  of  structures  on  either  side 
of  and  connected  with  it,  the  proceedings 
to  take  property  therefor  will  be  held  void. 
Farist  Steel  Co.*  v.  Bridgeport,  60  Conn.  278, 
22  Atl.  .561.  "  13:  590 
Wharves. 

See  also  supra,  65. 

143.  Condemnation  by  a  city  of  land  for 
a  public  wharf  cannot  be  defeated  by  the 
fact  that  it  intends  to  grant  a  railroad 
right  of  way  over  the  property  after  it  has 
acquired  title.  Diamond  -To  Line  Steamers 
V.  Davenport.  114  Iowa.  432,  87  N.  W.  399. 

54:  859 

e.  Right   Acquired. 

On    Condemnation    of    Right    to    Maintain 

Dam.  see  Dams.  3. 
For  Editorial  Notes,  see  infra,  V.  §  9. 

In  land  taken  for  highway. 

For  Editorial  Notes,  see  infra,  V.  §  9. 

144.  The  legislature  may  constitutionally 
provide  that  the  public,  in  taking  land  for 
highways,  may  take  the  buildings  absolute- 
ly, or  may  take  no  interest  whatever  in 
them.  State.  Mangles.  Prosecutor,  v.  Hud- 
son County  Freeholders  (N.  J.  Sup.)  55  N. 
•T.  L.  88.  25  Atl.  322.  17:  785 

145.  A  grant  of  the  risrht  of  eminent  do- 
main to  a  corporation  for  the  purpose  of 
constructing  a  public  highway  is  construed 
strictly,  and  as  merely  giving  it  a  power 
to  acquire  such  an  easement  in  the  land 
taken  as  enables  it  fully  to  accomplish  the 
purposes  for  which  it  was  created.  New 
.Torspv  Zinc  &  Iron  Co.  v.  Morris  Canal  & 
r.ks.'Co.  (N.  J.  Ch.)  44  N.  J.  Eq.  398,  15 
AtJ.  227,  1:  133 


146.  A  judgment  in  a  proceeding  institut- 
ed under  authority  of  a  statute  giving  city 
councils  the  power  to  extend  streets  over 
railroad  tracks  can  clothe  the  city  with 
nothing  more  than  an  easement  or  right  to 
pass  over  the  tracks.  No  right  to  the  fee 
or  to  the  exclusive  use  of  the  land  can  be 
awarded.  Illinois  C.  R.  Co.  v.  Chicago.  141 
III.  586,  30  N.  E.  1044,  17:  530 

147.  Provision  for  the  acquirement  of  an 
easement  only,  and  not  for  any  ownership 
in  the  fee,  is  made  by  an  ordinance  passed 
under  authority  of  a  statute  giving  city 
councils  the  power  to  extend  streets  over 
"any  railroad  track,  right  of  way,  or  land 
of  any  railroad  company,"  which  ordinance 
provides  for  the  extension  of  a  street  across 
the  right  of  way.  "and  for  the  condemna- 
tion of  railroad  property"  for  the  purpose 
thereof.  Id. 
By  water  company. 

For  Editorial  Notes,  see  infra,  V.  §  9. 

1451.  The  right  of  a  water  company  in 
lands  flowed  by  it  under  the  exercise  of  emi- 
nent domain  is  something  more  than  a  mere 
easement,  and  includes  the  right  of  exclusive 
occupation,  with  all  attendant  riparian 
rights,  for  such  time  as  the  land  is  held 
under  the  charter.  Wright  v.  Woodcock.  86 
Me.  113,  29  Atl.  953.  25:  490 

By  railroad  company  as  against   owner  of 

fee. 
Right  to  Maintain  Ejectment  for  Property 

Condemned,  see  Ejectment.  10. 
See  also  infra.  157-159. 
For  Editorial  Notes,  see  infra,  V.  §  9. 

149.  A  condemnation  of  lands  for  depot 
and  station  grounds  does  not  pass  the  fee 
to  the  railway  company.  Lyon  v.  Mc- 
Donald. 78  Tex.'  71.  14  S.  W.  261.  9:  205 

150.  The  owner  of  the  fee  of  land  an  ease- 
ment in  which  is  condemned  for  railroad 
uses  is  not  entitled  to  any  use  of  the  land 
except  necessary  crossings,  under  the  ilis- 
souri  statutes,  which  require  the  right  of 
way  to  be  fenced  by  the  railroad  company, 
and  provide  that  a  person  walking  on  the 
track  when  injured  by  a  train  shall  be 
deemed  a  trespasser.  St.  Louis.  K.  &  N. 
W.  R.  Co.  V.  Clark,  121  Mo.  169.  25  S.  W. 
192.  906.  26:  751 

151.  The  taking  of  a  right  of  way  by  a 
railroad  company  under  a  charter  which 
provides  that,  in  the  absence  of  a  contract 
with  the  landowner,  or  an  as.sessment  of 
damages  for  the  taking,  the  land  shall  be 
presumed  to  have  been  granted  to  the  com- 
pany, which  shall  have  a  good  title  thereto 
and  enjoy  the  same  as  long  as  it  is  used  for 
the  purposes  of  the  road,  and  no  longer,  wil', 
in  the  absence  of  such  grant  or  assessment, 
give  the  company  only  an  easement  in  the 
land:  and  the  o^vner  of  the  fee  may  use 
the  land  in  any  way  not  inconsistent  with 
its  use  by  the  company.  '  East  Tennessee, 
V.  &  G.  R.  Oo.  v.  West,"  89  Tenn.  293.  14  S. 
W.  776.  10:  8.55 

152.  Erection  and  operation  of  a  public 
grain  elevator  or  warehouse  upon  a  rail- 
road right  of  way  acquired  in  condemnation 
proceedings,  whether  done  by  the  company 
or  its  licensee  or  lessee,  are  neither  misuse 


EMINENT  DOMAIN,  II.  a. 


iia 


nor  abandonment  of  the  easement  in  the 
land  occupied  by  such  stiuctuie,  so  as  to 
give  ilie  owner  of  the  fee  a  right  to  resume 
j)ossession.  Gurney  v.  Minneapolis  Union 
Jilevator  Co.  G3  Minn.  70,  65  N.  \V.  13G, 

30:  534 

153.  Permission  by  a  railroad  company  to 
•a  lumber  dealer  to  use  depot  grounds  as  a 
lumi  .,  yard  in  which  to  store  his  lumber 
until  sold,  and  to  use  the  premises  as  a 
place  of  business  generally,  although  tJie 
business  of  the  company  is  facilitated  there- 
by, is  inconsistent  with  the  easement  vest- 
ed in  the  company,  and  entitles  the  owner 
of  the  fee  to  recover  from  such  dealer  the 
rental  value  of  the  premises.  Lyon  v.  Mc- 
Donald, 78  Tex.  71,  14  S.  W.  261„  9:  295 

154.  The  acquisition  by  a  rtiilroad  or 
canal  company  of  an  easement  for  a  right 
of  way  over  the  land  of  a  riparian  owner, 
along  or  on  the  shore  of  his  land,  does  not 
deprive  hyn  of  his  right  to  improve  the 
connection  of  his  land  with  the  adjacent 
tidewater.  New  Jersey  Zinc  &  Iron  Co.  v. 
Morris  Canal  &  Bkg.  Co.  (N.  J.  Ch.)  44  N. 
J.  Eq.  398,  15  Atl.  227,  1:  133 

155.  A  condemnation  by  a  railroad  corpo- 
ration of  upland  abutting  upon  water  em- 
braces also  the  incidental  riparian  right  of 
improvement  and  occupancy  of  the  sub- 
merged land,  although  no  specific  mention  is 
made  of  riparian  rights.  Hanford  v.  St. 
Paul  &  D.  R.  Co.  43  Minn.  110,  44  N.  .W. 
1144,  7:  722 

150.  A  deed  by  a  railroad  coonipany  of 
land  purchased  by  it  in  fee  simple  for  a 
right  of  way  is  not  void  until  so  declared 
in  proceedings  by  the  state,  although  the 
•company  has  abandoned  its  purpose  of  using 
the  land  for  a  railroad.  Chamberlain  v. 
Northeastern  R.  Co.  41  S.  C.  399,  19  S.  E. 
743,  25:  139 

As  against  third  persons. 

157.  ^\Tien  a  railroad  company  has  seleot- 
«d  its  location  between  its  terminal  points, 
and  surveyed  and  recorded  the  same,  as 
required  by  chap.  157,  Vt.  Rev.  Laws,  it 
requires  a  vested  and  exclusive  right  to 
binld  its  railroad  on  its  recorded  location, 
as  against  a  subsequent  sale  of  the  same 
lands  to  another  companv.  Barre  R.  Co.  v. 
Montpelier  &  W.  R.  R.  Co.  61  Vt.  1,  17  Atl. 
«23,  4:  785 

158.  A  railroad  company  which  has  com- 
pleted and  recorded  surveys  of  its  route,  as 
required  by  the  Vermont  statute,  and  which 
has  properly  proceeded  to  have  damages 
assessed,  loses  none  of  its  rights  by  a  pur- 
chase from  the  owner  by  another  company 
of  the  land  in  suit,  pending  the  condemna- 
tion  proceedings.  Id. 

159.  Where  a  railroad  company  has  duly 
made  and  recorded  the  survey  of  its  pro- 
posed route  as  required  by  the  Vermont 
laws,  a  prior  unrecorded  agreement  of 
which  it  has  no  notice,  between  the  land- 
owner and  another  railroad  company,  to 
convey  the  land  to  such  other  company, 
will  not  prejudice  the  first  company,  so  as 
to  give  priority  to  a  deed  to  the  second  com- 
pany, made  subsequent  to  the  recording  of  j 
the   survey.  Id. 


II.  Procedure, 
a.  In  General. 


Withholding  Mandate  of  Possession  on  Ap- 
peal from  Judgment  in  Ejectment  to 
Permit  Condemnation,  see  Appeal  and 
Error,  1191,   1192. 

Exclusiveness  of  Statutory  Remedy,  see 
Election  of  Remedies,  11,  13. 

Omission  of  Mortgagee  from  Proceedings, 
see  Llortgage,  139. 

Intervention  in  Condemnation  Proceedings, 
see  Parties,  217. 

For  Editorial  Notes,  see  infra,  V.  §  10. 

160.  Interests  in  several  pieces  of  land 
belonging  to  different  owners  may  be  con- 
demned by  one  proceeding  under  N.  J.  act 
1890,  p.  489.  State  ex  rel.  Duke  v.  Central 
New  Jersey  Teleph.  Co.  (N.  J.  Sup.)  53  N. 
J.  L.  341,  21  Atl.  460,  11:664 

161.  The  question  of  damages  to  be 
awarded  upon  the  crossing  of  one  railroad 
by  another  may  be  referred  to  commission- 
ers, under  a  statute  providing  that  courts 
may  regulate  and  determine  the  place  and 
manner  of  making  crossings.  Butte,  A.  & 
P.  R.  Co.  V.  Montana  U.  R.  Co.  16  Mont.  504, 
41  Pac.  232,  248,  31:  298 

162.  The  exisiting  practice  as  to  con- 
demnation proceedings  in  the  courts  of  a 
state,  to  which  a  Federal  court  sitting  in 
that  state  is  to  conform  in  proceedings  to 
acquire  land  for  the  United  States,  is  the 
practice  which  obtains  in  like  suits  gener- 
ally, and  not  in  some  special  and  accepted 
class  of  cases, — such  as  in  the  condemna- 
tion of  land  for  school  sites,  under  N.  Y. 
Laws  1888,  chap.  191.  Re  Secretary  of  the 
Treasury,  45  Fed.  396,  11:275 

163.  The  submission  to  the  jury,  in  an 
action  to  recover  damages  for  injuries  to 
adjoining  land  by  the  widening  of  a  canal, 
of  an  issue  as  to  permanent  damages,  is,  in 
eflfect,  a  statutory  condemnation  of  an  ad- 
ditional easement,  and  cannot  be  demanded 
by  either  party  if  the  injury  can  be  reme- 
died at  reasonable  expense  without  interfer- 
ing with  the  performance  by  the  canal  com- 
pany of  its  public  duties.  Mullen  v.  Lake 
Drummond  Canal  &  W.  Co.  130  N.  C.  496,  41 
S.  E.  1027,  61 :  833 

164.  The  doctrine  that,  if  a  railroad  com- 
pany takes  possession  of  land  for  a  public 
way.  the  owner  thereof  not  objecting,  the 
latter  will  be  presumed  to  have  consented 
thereto,  and  impliedly  agreed  to  accept  a 
just  compensation  therefor,  and  consented 
to  rely  upon  the  statutory  method  of  olv 
taining  the  same,  has  no  application  to  a 
case  where  the  rights  of  the  parties  are 
defined  by  a  written  instrument.  Magin- 
nis  v.  Knickerbocker  Ice  Co.  112  Wis.  385, 
88  N.  W.  300,  69:  833 
Attempt  to  agree. 

165.  In  condemnation  proceedings  to  take 
land  for  city  use,  under  the  Michigan  act  of 
1883,  the  city  need  not  show  previous  efforts 
to  buv  the  land  or  induce  its  dedication. 
Detroit  v.  Beecher,  75  Mich.  454.  42  N.  W. 
986,  4:  813 

166.  An  attempt  to  agree  as  to  the  points 


1144 


EMINENT  DOMAIN,  II.  b.  c.  1. 


and  manner  of  crossing  must  be  made  by  a 
lailioad  which  desires  to  cross  another  be- 
fore it  can  seek  the  aid  of  a  court,  under 
Wash.  (ien.  Stat.  §  lo71.  Seattle  &  M.  R. 
Co.  V.  State,  7  Wash.  150.  34  Pac.  551, 

22:  217 
Sufficiency  of  summons. 

167.  A  summons  in  eminent  domain  pro- 
ceedings by  a  city,  which  states  that  the 
"object  of  the  petition  is  to  open  and  ex- 
tend Eleventh  street  from  Leverett  street 
to  Michigan  avenue,  where  not  already 
opened  60  feet  wide,  for  the  use  and  benefit 
of  the  public  as  a  public  street  and  high- 
way," sufficiently  states  the  object  of  the 
petition,  as  required  by  the  Michigan  act 
of  1883  authorizing  such  proceedings  by 
cities.  Detroit  v.  Beecher,  75  Mich.  454,  42 
X.  W.  986,  4:  813 
Notice. 

Due  Process  of  Law  in,  see  Constitutional 

Law,   870. 
For  Editorial  Notes,  see  infra,  V.  §  12. 

168.  Xotice  from  viewers  in  an  eminent 
domain  proceeding,  and  an  appearance  in 
response  thereto,  cannot  give  them  any  au- 
thority to  assess  damages  for  injury  by 
negligent  construction  of  the  work,  as  that 
is  not  within  their  jurisdiction.  Stork  v. 
Philadelphia,  195  Pa.  101,  45  Atl.  678, 

49:  600 

169.  Notice  to  mortgagees  is  not  neces- 
sary on  condemnation  of  land  in  possession 
of  the  mortgagor.  Goodrich  v.  Atchison 
County  Comrs.  47  Kan.  .355,  27  Pac.  1006. 

18:  113 

170.  A  statute  requiring  each  person  in- 
terested in  real  estate  to  be  served  with 
notice  of  intention  to  acquire  an  interest 
in  it  by  right  of  eminent  domain  does  not 
deprive  the  court  of  jurisdiction,  except  as 
to  persons  not  served  in  case  of  a  failure 
to  make  service  on  some  of  the  parties  in 
interest,  where  it  expressly  states  that  per- 
sons duly  served  shall  be  bound  by  the 
"subsequent  proceedings."  State  ex  rel. 
Trimble  v.  King  County  Super.  Ct.  31  Wash. 
445,  72  Pac.  89.  '  66:  897 

b.  Petition. 

171.  A  petition  for  condemnation  proceed- 
ings for  improvements  by  a  city,  which 
states  the  object  of  the  improvement  to  be 
the  opening  "and  extending  of  Eleventh 
street  from  Leverett  street  to  Michigan 
avenue,  where  not  already  opened  60  feet 
wide:  and  that  in  making  and  maintaining 
the  proposed  improvement  a  perpetual  right 
of  way  over  the  different  pieces  or  parcels 
of  private  property  hereinafter  described 
will  be  necessary;  and  that  such  right  of 
way  is  proposed  to  be  used  for  the  pur- 
pose of  a  public  street  and  highway." — suf- 
ficiently states  in  a  "general  way"  the  na- 
ture and  extent  of  the  use  of  the  land 
to  be  taken,  under  the  Michigan  act  of  18S3. 
Detroit  v.  Beecher.  75  Mich.  4.54.  42  N.  W. 
986.  4:  813 

172.  The  specific  mention  of  and  includ- 
ing in  the  same  petition  riparian  rights  in 
respect    to    other    lands    belonging    to    other 


persons  does  not  affect  the  construction  of 
the  petition  and  proceedings  in  respect  to 
the  land  in  question.  Hanford  v.  St.  I'aul 
&  D.  R.  Co.  43  Minn.  110,  44  N.  W.  1144, 

7 :  722 

173.  No  admission  that  any  damage  will 
be  caused  by  the  grading  of  a  street  is 
necessary  to  the  filing  of  a  petition  by  the 
city,  under  S.  D.  Acts  1891,  chap.  94,  pro- 
viding for  the  ascertainment  of  damages 
before  taking  or  damaging  private  property 
for  public  use.  Searle  v.  l^ead,  10  S.  D.  312, 
73  N.  W.  101,  39:  345 
Signing  of. 

174.  A  petition  to  condemn  private  prop- 
erty for  public  use  by  a  city,  which  is  signed 
"The  City  of  Detroit,  by  William  S.  Shee- 
ran.  City  Attorney,"  sufficiently  complies 
with  the  Michigan  statute  requiring  such  a 
petition  to  be  signed  by  the  city  attorney 
in  his  official  capacity.  Detroit  v.  Beecher, 
75  Mich.  454,  42  N.  W.  986,  .  4:  813 
Verification. 

175.  A  petition  for  condemnation  proceed- 
ings by  a  city  to  take  land,  under  the 
Michigan  statute  of  1883,  is  sufficiently 
verified  when  sworn  to  by  the  city  attorney 
to    the   best   of   his    knowledge    and    belief. 

Id. 
Reference  to  map. 

176.  A  map  filed  with  and  referred  to  in 
a  petition  to  condemn  lands  for  a  telephone 
line  may  be  used  to  assist  in  the  description 
of  the  size  and  location  of  the  poles.  State 
ex  rel.  Duke  v.  Central  New  Jersey  Teleph. 
Co.  (N.  .1.  Sup.)  .53  N.  .J.  L.  341,  21  Atl.  460, 

1 1 :  6«4 
Amendment. 

177.  The  alienation  of  property  pending 
proceedings  to  acquire  title  to  it  by  an  exer- 
cise of  the  power  of  eminent  domain  does 
not  render  it  incumbent  on  the  one  seeking 
the  property  to  amend  his  petition  and 
bring  in  the  purchaser.  Southern  I.  &  M. 
Bridge  Co.  v.  Stone.  174  Mo.  1,  73  S.  W. 
453,  63:  301 

c.  Trial:    .Imlgment. 
1.   In    Ceneral. 

Burden  of  Proof,  see  Evidence,  642. 
Evidence    on    Appeal    from    Commissioners, 

see  Evidence,  1709. 
Right  to  Open  and  Close,  see  Trial,  40. 
Striking  out  Evidence  as  to  Value,  see  Trial. 

For  Editorial  Notes,  see  infra,  V.  §  11. 

178.  In  Missouri,  condemnation  cases  in 
the  circuit  court  involve  the  exercise  of 
judicial  power.  Plum  v.  Kansas  City,  101 
Mo.  525.   14   S.   W.  657.  10:  371 

179.  It  is  not  error  for  a  judge  who  heard 
a  case  on  the  question  of  the  necessity  of 
the  condemnation  of  land,  under  Wash. 
Code  Prac.  §  651.  to  send  the  jury  trial  to 
another  judge.  Seattle  &  M".  R.  Co.  v. 
State.  7  Wash.  1.50,  34  Pac.  551.  22:  217 

180.  In  conilemnation  proceedings,  a  state- 
ment filed  by  the  attorneys  of  the  railroad 
company,  purporting  to  be  an  agreement  to 


EMINENT  DOMAIN,  II.  c,  2. 


1145 


eliange  the  plan  of  an  embankment,  should 
be  stricken  from  the  files,  where  there  is  no 
proof  of  authority  to  such  attoi'neys  to 
}»iake  sueh  stipubition.  Wabash.  St.  L.  & 
J'.  R.  Co.  V.  MeDougall,  120  111.  111.  18  \. 
E.  291,  1:207 

181.  In  a  proceeding  by  a  magnetic  tele- 
graph company,  under  Ohio  Rev.  S'tat.  1892, 
S??  3456-34.^)9,  foi-  the  ])urpose  of  appropriat- 
ing to  its  use  a  part  of  the  right  of  way  of 
a  railroad  company  organized  under  the 
laws  of  Ohio,  it  is  necessary  and  jurisdic- 
tional for  the  court  to  hear  and  determine, 
and  so  enter  of  record,  that  the  easement 
sought  to  be  appropriated  by  such  telegraph 
company  will  not  in  any  material  degree  in- 
terfere with  the  practical  uses*l,o  which  the 
railroad  company  is  authorized  to  put  such 
right  of  way,  and.  until  the  court  has  so  de- 
termined, it  is  without  jurisdiction  to  order 
an  appropriation,  and  impanel  a  jury  for  the 
assessment  of  compensation  to  the  railroad 
company.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 
Ohio  Postal  Teleg.  Cable  Co.  (18  Ohio  St.  306, 
67  X.  E.  890,  62:  941 

182.  The  points  and  maimer  of  crossing, 
the  place  where,  and  whether  under,  over, 
or  at  grade,  are  to  be  decided  by  the  court, 
on  an  application  by  one  railroad  for  the 
right  to  cross  another,  imder  Wash.  (ien. 
Stat,  ii  1571.  Seattle  &  M.  R.  Co.  v.  State, 
7  Wash.  150,  34  Pac.  551,  22:217 
Offer  of  stipulation  for  reducing  damages. 

183.  An  offer  of  a  stipulation,  as  to  the 
manner  of  using  the  easement,  for  the  pur- 
pose of  reducing  damages  at  a  jury  trial  in 
a  condemnation  proceeding,*  will  have  the 
same  effect  as  an  amendment  of  the  petition 
upon  defendant's  right  to  a  continuance  in 
case  he  is  taken  by  surprise.  St.  Ix)uis.  K. 
&  N.  W.  R.  Co.  V.  Clark,  121  Mo.  169.  25  S. 
W.    1!)2.  906,  26:  751 

184.  Paying  the  damages  awarded  by  com- 
missioners in  a  condemnation  proceeding, 
and  taking  possession  of  the  land,  will  not 
prevent  the  offering  in  evidence  of  a  stipula- 
tion as  to  the  manner  of  usiing  the  easement 
upon  a  subsequent  jury  trial,  for  the  pur- 
pose of  reducing  the  award.  Id. 
Instructions. 

See  also  Trial.  707. 

185.  In  proceedings  by  a  city,  under  the 
^lichigan  act  of  1883,  to  take  land  for  open- 
ing a  s'treet,  it  is  not  improper  to  instruct 
that  every  part  of  the  public  is  interested 
lin  tliat  part  of  the  city,  and  that  anything 
that  tends  to  beautify  and  adorn  the  city 
adds  to  the  value,  and  is  a  publir  benefit. 
Detroit  v.  Beecher,  75  Mich.  4.54,  42  X.  W. 
986,  4:  813 
Judgment. 

186.  A  judgment  in  proceedings  by  an  ele- 
vated railroad  company  to  condemn  lands 
which  at  the  time  the  proceedings  were  in- 
stituted it  could  not  condemn  because  of 
restrictions  imposed  by.  a  city  ordinance 
should  not.  after  removal  of  the  restrictions, 
validate  the  original  invalid  taking  by  giv- 
ing the  landowner  interest  upon  the  compen- 
sation fixed  by  the  jury,  from  the  time  when 
the  ('(uiipany  first  went  into  occujiation.  as 
such    owner's    damage    mav    have    exceeded 


the  interest.     Tudor  v.  Chicago  &  S.  S.  R.  T. 
R.  Co.  164  111.  73,  46  X.  E.  446,  W:  379 

Interpleader. 

187.  Jhe  fact  that  a  minor  who  files  an 
interplea  in  proceedings  to  condemn  lands 
for  public  use,  claiming  the  compensation  to 
be  awarded,  offers  no  evidence  in  support  of 
his  plea,  will  not  justify  dts  dismissal  if  it 
shows  that  he  is  entitled  to  any  relief.  In 
such  case  the  court  must  take  the  necessary 
action  to  protect  the  minor's  rights.  Hutch- 
inson v.  McLaughlin,  15  Colo.  492,  25  Pac. 
317,  11:287 

188.  Under  eminent-domain  laws,  which 
provide  for  the  fixing  of  the  damages  which 
accrue  to  all  persons  in  consequence  of  the 
condemnation  of  land,  and  allow  interpleas 
to  be  filed,  under  which  the  rights  of  the 
parties  interpleading  shall  be  fully  consid- 
ered and  determined,  a  minor  who  has  given 
a  deed  for  land  sought  to  be  taken  may.  be- 
fore, reaching  his  majority,  interplead  in 
condemnation  proceedings,  alleging  a  disaf- 
firmance of  his  conveyance,  and  have  his 
right  to  the  fund  settled  therein.  Kven  if 
he  cannot  avoid  his  deed  during  minority, 
his  right  exiists  to  enter  and  receive  the 
rents  and  profits  until  his  right  to  disaf- 
firm accrues;  and  his  interplea  will  be  re- 
garded as  an  election  to  exercise  such  right, 
which  will  give  him  a  standing  before  the 
court.  Id. 

2.  Jury  and  Verdict. 

View  by  Jury,  see  Evidence,  1060^1062. 
Special  Legislation  as  to,  see  Statutes,  398. 
l'\)r  Editorial  Notes,  see  infra,  V.  §  11. 

189.  The  jury  may  be  permitted,  in  weigh- 
ing the  evidence  in  an  eminent  domain  pro- 
ceeding, to  exercise  their  individual  judg- 
ment as  to  values  upon  subjects  within 
their  knowledge  which  they  have  acquired 
through  experience  and  observation.  Bever- 
idge  v.  Lewis,  137  Cal.  619,  70  Pac.  1040, 

59 :  581 

190.  The  jury  in  a  condemnation  case  are 
not  entitled  to  rely  entirely  upon  their  own 
judgment  in  making  their  assessment  of 
damages,  and  reject  the  evidence  of  compe- 
tent witnesses,  although  after  inspection 
they  determine  that  it  is  a  more  reliable 
basis  for  the  estimate  than  the  testimony. 
Peoria  Gaslight  &  C.  Co.  v.  Peoria  Terminal 
R.  Co.  146  in.  372,  34  a.  E.  550,  21 :  373 

191.  Mich.  Pub.  Acts  1883.  Xo.  124.  pro- 
viding for  the  taking  by  cities  of  private 
property  for  public  improvements,  and  mak- 
ing it  the  duty  of  the  jury  to  determine 
•'the  necessity  for  taking  such  private  prop- 
erty for  the  use  or  benefit  of  the  public  for 
proposed  improvements,"  sufficiently  eom- 
ulies  with  the  constitutional  requirement 
that  the  jury  .shall  ascertain  the  necessity 
for  using  such  propertv.  Detroit  v.  Beech- 
er. 75  Mich.  454.  42  x!  W.  986.  4:  813 

192.  The  Michigan  act  of  1883.  authoriz- 
ing the  taking  of  private  property  for  pub- 
lic use  by  cities,  is  not  invalid  as  not  requir- 
insr  the  jury  to  assess  the  local  benefits,  as, 
under  the  statute  of  1887.  the  cost  may  be 
raiised   in   whole  or  in   part   by  general   tax, 


1148 


EMINENT  DOMAIN,  II.  d,  III.  a. 


and  therefore  consideration  of  local  benefits 
is  not  necessary.  Id. 

Sufficiency  of  verdict. 

193.  A  verdict  for  damages  caused  by  the 
construction  of  a  raUroad  and  a  subsequent 
change  therein  is  not  defective  because  it 
finds  a  gross  sum  to  be  paid,  instead  of  com- 
pensation and  damage  separately,  and  does 
not  describe  the  land;  Wabash,  St.  L.  &  P. 
R.  Co.  V.  McDougall,  126  111.  Ill,  18  N.  E. 
291,  1 :  207 
Verdict  by  majority. 

Partial  Invalidity  of  Statute  as  to,  see  Stat- 
utes, 96. 

194.  A  constitutional  provision  that  com- 
pensation for  land  condemned  "shall  be  as- 
certained by  a  jury  of  twelve  men  .  .  . 
as  prescribed  by  law"  is  violated  by  a  stat- 
ute authorizing  a  verdict  by  a  majority  of 
the  jury.  Jacksonville,  T.  &  K.  W.  R. 
Co.  V.  Adams,  33  Fla.  608,  15  So.  257, 

24:  272 
Right  to  jury  trial. 
See  also  infra,  269. 
For  Editorial  Notes,  see  infra,  V.  §  11. 

195.  Whether  or  not  the  drainage  of  land 
will  be  for  the  public  benefit,  or  particular 
land  shall  be  included  within  the  district, 
are  not  questions  to  which  the  right  of  trial 
by  jury  extends  under  a  constitutional  pro- 
vision preserving  the  right  to  such  trial. 
Sisson  V.  Buena  Vista  County,  128  Iowa. 
442,  104  N.  W.  454,  70:  440 

196.  A  business  is  not  property  within  the 
meaning  of  a  statute  providing  a  jury  trial 
to  determine  the  damage  in  case  of  injury 
to  "property"  by  the  exercise  of  the  right  of 
eminent  domain.  Sawyer  v.  Com.  182  Mass. 
245,  65  X.  E.  52,  59:  726 

197.  The  owner  is  not  entitled  to  have 
compensation  for  property  taken  by  a  mu- 
nicipal corporation  ascertained  by  a  jury,  un- 
der N.  D.  Const,  art.  1,  §  14,  which  men- 
tions a  jury  only  in  the  clause  concerning  the 
appropriation  of  property  to  the  use  of  any 
corporation  other  than  municipal.  M^irtir. 
V.  Tyler,  4  N.  D.  278,  60  N.  W.  392,      25 :  838 

198.  The  right  of  an  owner  whose  proper- 
ty is  condemned  for  public  use,  to  a  jury 
trial  upon  the  question  of  damages,  guar- 
anteed by  S.  D.  Const,  art.  6.  §  13,  proritling 
that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation  as  de- 
termined by  a  jury,  is  preserved  by  the  Da- 
kota Compiled  Laws  relating  to  the  sub- 
ject of  assessing  damages,  §  1324  of  which 
provides  for  an  appeal  and  a  jury  ^rial  if 
the  parties  cannot  agree  or  the  owner  is  dis- 
satisfied with  the  award  made  bv  the  super- 
visors. Dell  Rapids  v.  Irving,  7  S.  D.  310,  64 
X.W.I  49,  29:861 

d.  Appeal;  New  Trial. 

Review  by  Certiorard.  see  Certiorari,  26. 
Dismissal  of,  see  Pleading,  179. 
See  also  supra,  198. 

Appeal. 

Appealal>ility  of  Judgment   in,   see   Appeal 

and  Error,  43-45. 
Revipwnbility    in    United    States    Supreme 

Court,   see   Appeal  and   Error,  72. 


199.  The  fact  that  no  appeal  is  allowed 
from  the  decision  of  commissioners  as  to  the 
necessity  of  drainage  does  not  invalidate  an 
aot  providing  for  the  condemnation  of  lamls 
for  drainage  purposes.  State  ex  rel.  Balt- 
zell  v.  Stewart,  74  Wis.  620,  43  N.  W.  947, 

6:  394 

200.  Whether  the  use  for  which  property 
is  sought  to  be  taken  under  the  exercise  of 
eminent  domain  is  public  or  private  is  a  ju- 
dicial question,  subject  to  review  by  the  ap- 
pellate court.  Pittsburg,  W.  &  K.  R.  Co.  v. 
Benwood  Iron  Works,  31  W.  Va.  710,  8  S.  E. 
453,  2:  680 
New  trial. 

See  also  New  Trial,  17. 

For  Editorial  Notes,  see  infra,  V.  §  11. 

201.  A  new  trial  may  be  granted  in  favor 
of  one  and  not  of  the  other,  when  both  land- 
lord and  tenant  are  parties  to  condemna- 
tion proceedings  in  which  their  rights  are 
tried  together,  but  separate  verdicts  are 
rendered.  Stubbings  v.  Evanston,  136  111. 
37,  26  N.  E.  577,  11:  839 

202.  A  new  trial  as  to  the  assessment  of 
damages  should  not  be  refused  for  the  rea- 
son that  the  railroad  corporation  seeking 
to  acquire  the  property  had  entered  there- 
on on  giving  bond  pending  appeal  as  pro- 
vided by  the  statute,  and  had  made  such 
changes  therein  as  would  prevent  a  new  jury 
viewing  it  as  it  was  when  the  proceedinj; 
for  condemnation  was  begun.  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Schneider,  127  111.  144,  20 
N.  E.  41,  2:  422 

III.  Rights  and  Remedies  of  Owners. 

a.  In  General. 

Measure  of  Damages  in  Condemnation  Cases, 

see  Damages,  111.   1. 
For  Editorial  Notes,  see  infra,  V.  §§  13-17. 

203.  A  liberal  construction  should  be  giv- 
en to  the  constitutional  provision  for  just 
compensation  to  the  owners  of  property  tak- 
en or  damaged  for  public  use.  Searle  v. 
Lead,  10  S.  D.  312,  73  N.  W.  101,        39:  S45 

204.  Provision  as  to  taking  private  prop- 
erty for  public  use  without  compensation 
does  uQt  prevent  the  taking  of  milk  from 
dealers  for  inspection  and  analysis.  State 
v.  Dupaquier,  46  La.  Ann.  577,  15  So.  502. 

26:  162 

205.  Authority  given  to  a  resident  gen- 
eral guardian  of  an  infant  to  agree  with  a 
railroad  company  upon  the  amount  of  dam- 
ages for  taking  lands  of  the  infant,  or  to 
release  the  claim  or  right  to  damages,  does 
not  require  any  condemnation  of  the  prop- 
erty and  ascertainment  of  the  value  before 
the'  guardian  is  authorized  to  make  such 
agreement  or  release.  Louisville,  N.  0.  &  T. 
R.  Co.  V.  Jordan,  69  Miss.  939,  11  So.  111. 

16:  251 

206.  A  conveyance  of  a  right  of  way 
across  an  infant's  lands  to  a  railroad  com- 
pany is  not  a  dedication  to  public  use  with- 
out compensation  because  there  was  no 
money  consideration,  where  it  was  made  on 
a  condition  subsequent  that  a  depot,  station 


EMINENT  DOMAIN,  III.  b,  1. 


1147 


house,  and  tank  should  be  maintained  upon 
tlie  land.  Id. 

207.  A\'here  an  owner  recovers  interest  on 
•an  award  of  damages  for  land  taken  for 
public  use,  he  must  account  for  rents  and 
profits  from  the  time  of  the  taking.  Plum 
V.  Kansas  City,  101  Mo.  525,  14  S.  W.  657, 

10:  371 

208.  Waiver  of  the  right  to  have  the 
whole  damages  for  land  the  fee  of  which 
is  taken  for  public  use  assessed  and  paid  in 
money  will  be  effected  by  the  agreement  of 
the  former  owner  of  the  land  that,  if  the 
proceedings  are  abandoned  for  his  benefit, 
^nd  the  title  revested  in  him,  his  damages 
will  be  verv  light,  if  any.  Hellen  v.  Med- 
ford.  188  Mass.  42,  73  N.  E.  lOTOt       69:  314 

2f»9.  The  constitutional  requirement  of 
just  compensation  to  the  owner  of  a  lot,  of 
which  part  is  taken  and  the  remainder  dam- 
4iged  by  opening  an  alley  across  the  lot,  can- 
not be  complied  with  by  charging  the  own- 
•er  with  the  amount  as  a  special  tax  on  that 
part  of  his  lot  which  is  not  taken.  Such 
4issessment  would  amount  practically  to  con- 
fiscation. Bloomingtdn  v.  Latham,  142  III. 
462,  32  N.  E.  506,  18:  487 

210.  The  constitutional  provision  against 
-taking  private  property  for  public  use  with- 
out just  compensation  applies  to  money  as 
well  as  other  property,  and  prevents  a  mu- 
-nicipal  tax  on  property  or  business  so  sit- 
uated that  it  can  receive  no  protection  or 
1)enefit  from  the  municipality.  Kaysville  v. 
Ellison.  18  Utah,  163,  55  Pac.  386,       43:  81 

211.  The  failure  of  a  statute  to  provide 
■compensation  by  way  of  interest  from  the 
•date  of  the  paper  taking  or  formal  taking 
of  land  by  eminent  domain  to  the  date  of 
actual  entry  and  taking  of  possession  does 
710+  make  the  statute  unconstitutional  as 
failing  to  provide  reasonable  compensation. 
iJ^'orcross  v.  Cambridge,  166  Mass.  508,  44 
IN.  E.  615,  33:  843 

212.  An  amendment  to  a  city  charter  au- 
thorizing the  condemnation  of  land  outside 
-t'he  city  limits  for  park  purposes  is  not  in- 
•valid  for  not  providing  compensation  to  the 
owner  of  the  land  taken,  where  it  provides 
-that  the  proceedings  for  the  exercise  of  the 
power  of  condemnation  shall  be  the  same  as 
•that  now  provided  by  law  for  the  taking  of 
private  property  for  public  use,  and  the 
•charter  of  the  city  incorporates  within  it- 
oelf  the  general  condemnation  statutes  of 
ihe  state.  Memphis  v.  Hastings,  113  Tenn. 
142,   86    S.   W.   609,  69:  750 

213.  Xo  one  but  the  owners  can  raise  an 
objection  that  their  private  property  is  tak- 
-en  by  the  state  without  fair  compensation. 
Waterloo  Woolen  Mfg.  Co.  v.  Shanahan,  128 
X.  Y.  345,  28  N.  E.  358,  14:  4.«!1 

h.  What   Constitutes   a   Taking  of,   or   In- 
jury to.  Property. 

1.  In  General. 

.As  to  Consequential  Injuries  from  Taking, 

see  infra,  III.  e. 
As   to   Xecessity   of   Making   Compensation 

General!}',  see  infra,  III.  c,  1. 


As  to  Additional  Servitude,  see  infra,  IV. 

Compelling  Railroad  Companies  to  Issue  In- 
terchangeable Mileage  Tickets,  see  Car- 
riers, 1079,  1080. 

Requiring  Street  Car  Passengers  to  be  Car- 
ried without  Sufficient  Reward,  see  Con- 
stitutional Law,  741. 

Prohibiting  Possession  of  Game  during  Close 
Season,  see  Constitutional  Law,  774. 

Annexation  of  Territory  to  City  as,  see  Con- 
stitutional Law,  643. 

Making  Deductions  from  Salaries  of  Teach- 
ers, for  Pension  Fund,  see  Constitu- 
tional Law,  057. 

By  Obstructing  Surface  Water,  see  Munic- 
ipal Corporations,  538. 

See  also  Taxes,  79. 

For  Editorial  Notes,  see  infra,  V.  §§  16,  17. 

214.  Land  is  taken  by  purchase,  and  not 
by  condemnation,  when  In  pursuance  of  an 
agreement  with  the  owner  a  decree  is  ob- 
tained for  payment  to  him,  and  denying  the 
alleged  rights  of  other  persons  who  have 
given  notice  not  to  pay  him.  Chamberlain 
V.  Xortheastern  R.  Co.  41  S.  C.  399,  19  S.  E. 
743,  25:  139 

215.  A  mere  change  in  the  use  of  land 
fcom  agricultural  to  city  purposes  is  not 
taking  private  property  for  public  use.  Cal- 
ien  V.  Junction  City,  43  Kan.  627,  23  Pac. 
652,  7:  736 

216.  Assessments  or  charges  for  the  crea- 
tion of  an  assurance  fund,  under  Ohio  act 
April  27,  1896,  made  upon  the  issuance  of 
certificates  of  title,  when  made  on  real  es- 
tate in  the  hands  of  an  assignee  for  credi- 
tors, constitute  an  unconstitutional  taking 
of  property  without  the  consent  of  the  own- 
ers and  without  compensation  for  uses  that 
are  not  public,  since  the  fund  is  for  the  ben- 
efit of  persons  whose  lands  have  been  wrong- 
fully taken  from  them.  State  ex  rel.  Mon- 
nett  V.  Guil'bert,  56  Ohio  St.  576,  47  N.  E. 
551,  38:  519 

217.  The  abatement  of  a  nuisance  does 
not  constitute  a  taking  of  private  property 
for  public  purposes  for  which  compensation 
is  required  by  Iowa  Const,  art.  1,  §  18. 
State  ex  rel.  Remley  v.  Meek,  112  Iowa,  338, 
84  N.  W.  3,  51 :  414 

218.  Requiring  the  substitution  of  water- 
closets  for  school  sinks,  which  were  placed 
upon  the  property  by  direction  of  the  legis- 
lature, does  not,  when  demanded  for  the 
preservation  of  the  public  health,  amount  to 
a  taking  of  property  for  public  use  without 
just  compensation.  Tenement  House  De- 
partment V.  Moeschen,  179  N.  Y.  325,  72  N. 
E.  231,  70:  704 

219.  Requiring  one  to  cut  weeds  on  his 
property  is  not  a  taking  of  the  property 
within  the  meaning  of  a  constitutional  pro- 
vision that  private  property  shall  not  be 
taken  for  private  use,  or  for  public  use  with- 
out compensation.  St.  Louis  v.  Gait,  179 
Mo.  8,  77  S.  W.  876.  63:  778 

220.  Forbidding  the  use  of  land  near  a 
park  or  park  way  for  advertising  purposes 
amounts  to  a  taking  of  it  for  public  use,  for 
which  compensation  must  be  made.  Com.  v. 
Boston  Advertising  Co.  188  Mass.  348.  74 
N.  E.  601,  69:817 


1148 


EMINENT  DOMAIN,  III.  b,  2. 


221.  There  is  a  lakiiifj  of  property  with- 
in the  ineaiiiii^r  of  the  C'oiistitiitioii,  when 
tlie  owner  of  a  hit  frontinfr  on  a  boulevard 
is.  by  antliority  of  a  statute  or  ordinance, 
proliibite<i  fioni  buildinji  u])on  a  certain 
portion  of  it  between  a  building  line  there- 
by established  and  the  street.  St.  Louis  v. 
Hill,  IK)  Mo.  527,  22  S.  W.  861,  21:  226 

222.  The  depreciation  of  the  value  of 
real  property  caused  by  the  establishment 
of  a  smallpox  hospital  in  the  neighborhood 
under  statutory  authority  does  not  consti- 
tute a  taking  or  damaging  of  private  prop- 
erty for  public  use  without  just  compensa- 
tion within  the  meaning  of  111.  Const,  art. 
2.  §  U.  Frazer  v.  Chicago,  186  111.  480,  57 
X.  E.  1055,  51 :  306 
Tax  or  assessment. 

22.S.  The  constitutional  provision  that  pri- 
vate property  sha^l  not  be  taken  or  dam- 
aged for  public  use  without  just  compen- 
sation is  not  a  limitation  of  the  taxing 
power  of  the  state,  but  of  the  exercise  of 
the  power  of  eminent  domain.  Kimball  v. 
<;rantsville  City,  19  IHah,  368,  57  Pac.  1, 

45:  628 

224.  The  levy  of  a  local  assessment  or 
special  tax  for  public  improvements  is  not 
a  taking  of  private  property  for  public 
use  under  the  right  of  eminent  domain,  but 
is  an  exercise  of  the  taxing  power.  Adams 
County  V.  Quincy,  130  111.  566.  22  X.  E.  624. 

6:  155 

225.  Assessments  of  abutting  property  for 
sidewalk  improvements,  not  being  an  exer- 
cise of  the  right  of  eminent  domain,  do  not 
fall  within  the  constitutional  provision  that 
private  property  shall  not  be  taken  or  dam- 
aged for  public  purposes  without  the  pre- 
vious payment  of  just  and  adequate  com- 
pensation. Speer  v.  Athens.  85  Oa.  49.  11 
S.  E.  802.  9:  402 
Taking  of  turnpike  or  toll  bridge. 

220.  The  use  of  a  public  toll  bridge  for 
an  electric  railway  on  payment  of  adequate 
tolls  is  not  a  taking  of  or  injury  to  the 
property  in  the  exercise  of  the  power  of 
eminent  <louiain.  Pittsburgh  &  W.  E.  Pass. 
R.  Co.  v.  Point  Bridge  Co.  165  Pa.  37.  30 
Atl.  511,  '  26:  323 

227.  The  destruction  of  the  value  of  a 
turnpike  and  toll  bridge  which  did  not  have 
an  exclusive  franchise,  by  the  establish- 
ment of  a  free  bridge  as  ))art  of  the  public 
highway,  is  not  a  "taking"  of  the  property 
of  the  turnpike  company  for  which  compen- 
sation is  required.  Clarksville  &  R.  Turn- 
pike Co.  V.  Nlontgouierv  Conntx'.  100  Tenn. 
417.  45  S.  W.  345.  "  '  58:  155 
Making  county  liable  for  death  by  mob. 

228.  Tlii'ie  is  no  taking  of  ])i-ivate  prop- 
erty within  tlie  meaning  of  the  constitution- 
al provisions  as  to  eminent  domain  by  a 
statute  making  a  county  liable  to  a  penalty, 
to  be  collected  by  taxation,  for  the  death 
of  a  person  caused  bv  mob  violence.  ChaTU- 
paign  Countv  v.  Cliiircli.  (12  Ohio  St.  318. 
57  X.  E.  r,\).'  48:  738 
Authorizing  trespass. 

220.  Crossing  un<'ultivated  land  to  reach 
public  waters  for  the  |)urpose  of  fishing, 
which  is  declared   bv  Vt.   Acts   1S02.  Xo.  SO. 


not  to  be  actionable  unless  actual  damage  i* 
done,  is  nevertheless  a  trespass  if  done 
against  the  will  of  the  owner,  and  consti- 
tutes a  taking  of  private  property  for  pri- 
vate use  contrary  to  the  Constitution.  Xew 
England  Trout  &  S.  Club  v.  Mather,  68  Vt. 
338,  35  Atl.  323,  SH:  56* 

2.  As  to  Streets  and   Highways. 

Conversion     of      Highway      into      Pleasure 
Driveway,  see  Constitutional  Law.  764. 

230.  Depriving  the  owner  of  a  lot  abut- 
ting on  a  public  street,  of,  or  materially 
interfering  with,  his  enjoyment  of  the  ease- 
ment in  the  street,  to  its  full  width,  for 
idmission  of  light  and  air  to  his  lot,  is  a 
taking  of  his  property  for  public  use,  with- 
in the  .Minnesota  Constitution,  for  which 
full  compensation  must  be  made.  Adam.s- 
V.  Chicago,  B.  &  N.  R.  Co.  39  Minn.  286,. 
39  X.  W.  629,  1 :  493 
Lamm  v.  Chicago,  St.  I'.  M.  &  O.  R.  Co.  45 
Minn.  71,  47  N.  W.  455,                           10:  268 

231.  The  use  of  a  street  for  other  than 
legitimate  .street  purposes,  which  consti- 
tutes any  impairment  of  or  interference 
with  the  easements  of  an  abutting  owner, 
is  a  i;aking  of  his.  property  within  the 
meaning  of  the  Constitution.  Willamette 
Iron  Works  Co.  v.  Oregon  R.  &  Nav.  Co. 
26  Or.  224,  37   Pac.   1016.  29:  88 

232.  The  placing  by  a  private  lighting 
company  of  poles  at  the  curb  in  a  street, 
and  the  stringing  thereon  of  electric  light 
cable  lines  and  wires  for  the  purpose  of  fur- 
nishing light  and  energy  to  private  takers, 
constitute  a  diversion  of  the  street  from 
the  purposes  to  which  it  was  dedicated,  and 
a  taking  of  the  propertj*  ot  the  abutting 
owner  within  the  meaning  of  the  Ohio  Bill 
of  Rights;  and  such  taking  is  none  the 
less  unauthorized  because  consented  to  by 
the  city  authorities.  Callen  v.  Columbu? 
Edison 'Electric  Light  Co.  66  Ohio  St.  166. 
64  X.   E.   141,  58:  782: 

233.  Private  prtiperty  is  taken  for  j)ublic 
use  without  just  compensation,  when  abut- 
ting property  owners  aie  compelled  to 
keep  sidewalks  in  front  of  their  premises 
free  from  snow.  State  v.  Jackman.  69  X. 
H.  318.  41  Atl.  347.  42:  438 
Railroad  in. 

2.34.  The  construction  and  operation  of  a 
surface  railroad  along  and  upon  a  city 
street,  substantially  upon  the  same  grade 
therewith,  under  authority  from  the  h'gisla- 
ture  and  by  permission  of  the  city,  is  not 
a  taking  of  any  property  of  an  abutting 
landowner  who  has  no  title  to  any  portion 
of  the  street,  which  will  entitle  him  to 
compensaticm  either  for  interference  with 
any  of  his  easements  in  the  street,  or  for 
consequential  damages  to  his  adjoining 
property  necessarily  resulting  from  a  rea- 
sonable operation  of  the  road,  where  the 
use  of  the  street  is  not  exclusive  in  its 
nature,  and  the  passage  through  and  acros.s 
it  is  left  free  and  unobstructed  for  the 
public.  Fobes  V.  Rome.  W.  &  0.  R.  Co. 
121  X.  Y.  505,  24  X.  E.  919,  8:  453 


EMINENT  DOMAIN,  III    b,  3. 


114d 


235.  Tlie  mere  depreciation  in  the  value 
■of  the  lot  of  an  abuttiii<;  owner  vviio  does 
not  own  the  fee  of  tlie  street,  by  tlie  con- 
struction of  a  railroad  in  the  street,  and 
his  deprivation  of  the  full  use  of  the  street, 
but  witliout  any  invasion  of  or  physical  in- 
terference with  his  lot,  or  any  obstruction 
of  his  access  thereto,  is  not  a  takinji  of  his 
jiropcrty,  within  the  ineaninj!;  of  the  con- 
stitutional provision  as  to  compensation  for 
propertv  taken.  O'Rrien  v.  Baltimore  Belt 
R.  Co.  '74  Md.  3U3,  22  Atl.   141,  13:  120 

23ti.  Kan.  Comp.  Law>  188.1.  chap.  28.  § 
47.  subd.  4.  authorizing  the  construction  of 
railroads  in  streets,  is  not  in  contraven- 
tion of  Kan.  Const,  art.  12.  J;  4,  or  of  the 
J")th  Amendment  to  the  Constifstion  of  the 
I'nited  States,  as  the  constitutional  right 
to  compensation  for  private  property  taken 
foi-  public  u.se  does  not  e.xtend  to  instances 
where  the  land  is  not  actually  taken,  but 
indirectly  or  conse(|uentiallv  injured.  Ot- 
tawa. O.  C.  &  C.  O.  R.  Co.  V.  Larseu,  40 
Kan.  301.  19  Pac.  (itil.  2:  59 

Elevated  railroad  in. 

237.  There  is  no  "taking"  of  the  prop- 
■erty  of  an  abutting  owner  by  the  erection 
ill  the  bed  of  the  street  by  an  elevated 
railroad  company  of  a  stone  abutment  9 
leet  high,  which  reduces  the  width  of  the 
street  in  front  of  his  premises  to  less  than 
10  feet,  interfering  with  light  and  air  and 
nearly  destroying  access  to  his  property 
from  the  street.  Garrett  v.  Lake  Roland 
Kiev.  R.  Co.  79  Md.  277,  29  Atl.  830,  24:  39(5 

238.  The  construction  in  a  public  street 
of  an  elevatetl  railroad  track  for  the  use  of 
trains  to  be  operated  by  steam,  so  as  to  in- 
terfere with  the  abutting  owner's  right  to 
light,  air.  access,  and  privac^v,  is  a  taking 
of  his  property  for  which,  under  the  Con- 
stitution, he  is  entitled  to  compen.sation. 
l)e  (ieofrov  v.  Merchant's  Bridge  Terminal 
R.  Co.  179' Mo.  698.  79  S.  W.  38(5,  04:  959 
Street  railway  in. 

See  also  supra,  237,  238. 

239.  An  ordinance  designating  the  loca- 
tion of  trolley  poles  in  a  street  inside  of 
the  curb  is  not  invalid  as  a  taking  of  pri- 
vate property  of  abutting  owners  without 
compensation,  where  the  designation  is 
merely  with  a  view  to  public  convenience 
in  the  use  of  the  streets,  and  the  corpora- 
tion, if  it  needs  private  property,  must  get 
it  by  agreement  with  the  owners,  and  has 
no  power  under  the  statute  to  obtain  it  by 
«minent  domain.  State  ex  rel.  Roebling 
V.  Trenton  I'ass.  R.  Co.  (X.  .1.  Err.'&  .\pp.) 
.IS  N.  .1.  L.  000.  34  Atl.  1090.  33:  129 
Changing  grade  of  street. 

]{e(|uiring  Conformity  of  Railroad  Tracks 
with  Change  of  (irade.  see  Constitu- 
tional Law.  760. 

Injunction  against  Wrongful  Taking  by. 
see   Injunction,  385,  490.  497. 

240.  A  city  is  liable  to  an  abutting  own- 
er for  removing  the  lateral  support  to  his 
land  by  grading  a  street. — at  least  if  it  is 
<lone  negligently,  with  knowledge  that  his 
land  is  liable  to  slide,  even  if  there  is  no 
tiiMsi  itutional  provision  against  "damag- 
ing,"   but   only    against   "taking,"    property 


for  public  uses  without  just  compensation. 
Such  injury  to  his  property  wimld  seem  to 
constitute  a  "taking."  I'arke  v.  Seattle, 
5  Wash.   I.  31    Pac.  310,  20:  68 

241.  Raising  the  grade  of  a  street  to  such 
a  height  that  the  earth  of  the  fill  slides 
over  upon  adjoining  premises  so  far  as  to 
cover  up  a  portion  of  the  owner's  dwelling 
by  the  embankment,  closing  a  door  and 
lower  wiiulows.  constitutes  a  taking  of  the 
property,  within  the  meaning  of  the  con- 
stitutional provision  requiring  just  com- 
IJensation  when  private  property  is  taken 
for  public  use.     X'anderlip  v.  (irand  Rapids, 

73  Mich.  522,  41  N.  W.  677,  3:  247 

242.  A  change  of  grade  by  erecting  a 
viaduct  the  surface  of  which  becomes  the 
surface  of  the  street,  by  which  erection  the 
light  and  air  for  i<.butting  property  are 
abridged  and  access  therefrom  to  the  street 
totalh-  cut  oft",  is  not  a  "'taking"  of  private 
property,  within  the  meaning  of  a  consti- 
tutional provision  as  tt)  compensation, 
where  the  viaduct  is  made  by  nuinicipal 
authority  in  the  exercise  of  its  power  to 
change  the  grade,  though  under  an  agree- 
ment by  which  railroad  companies  whose 
tracks  are  to  be  thus  abridged  are  to  con- 
tribute towards  the  expense.  Selden  v. 
Jacksonville.  28  Fla.  558.  10  So.  457,  14:  370 
Discontinuance  of  highway. 

243.  The  discontinuance  of  a  road  is  not 
a  taking  or  damaging  of  the  property  of  an 
abutting  owner  within  the  con.stitutionaI 
provision  as  to  compensation  for  property 
taken  or  damaged  for  public  use.  Levee 
Dist.  No.  9  V.  Farmer.  101  Cal.  178,  35  Pac. 
569,  23:  388 

244.  The  interest  of  an  adjoining  land- 
owner in  a  highway  is  property,  within  the 
meaning  of  a  constitutional  ])rovision  that 
property  cannot  be  taken  for  public  use 
without  compensation;  and  the  discon- 
tinuance of  the  highway  is  a  '"taking"  of 
such   property.     Pearsall   v.  Eaton  Countv, 

74  Mich.  558,  42  N.  W.  77,  4:  193 
"245.  Closing  the  street  between  the   land 

of  an  abutting  owner  and  the  nearest  in- 
tersecting street,  without  furnishing  an- 
other convenient  and  reasonable  outlet  in 
that  direction,  or  making  compensation  for 
the  damages,  is  taKing  private  property 
without  due  compensation.  Gargan  v. 
Louisville.  X.  A.  &  C.  R.  Co.  89  Ky.  212, 
12  S.  W.  259.  6:  340 

3.  As  to  Water  and  Water  Rights;  Sewage. 

Prohibiting    Fishing    in    Brook,    see    Con.sti- 
tutionaI Law.  985. 
By  Reducing  Water  Rates,  see  Waters,  599. 

246.  An  appropriation  of  water  and  a 
water  plant  to  public  use  by  the  state,  for 
which  just  compensation  must  be  made,  is 
in  etfect  made  by  Cal.  Const,  art.  14.  §  1, 
which  subjects  to  the  control  of  the  state 
every  public  water  supply.  (Per  Van  Fleet, 
llenshaw,  and  McFarland,  .T.T.)  San  Diego 
Water  Co.  v.  San  Diego.  118  Cal.  550.  50 
Pac.    033.  38:  400 

247.  The  destruction  of  a  mill  and  a  mill 


1160 


EMINENT  DOMAIN,  III.  b,  3. 


dam  by  village  trustees  in  time  of  danger 
to  prevent  damage  to  a  highway  and  other 
property,  even  if  they  act  with  authority, 
is  not  a  taking  of  property  for  a  public 
nse  in  the  exercise  of  eminent  domain,  but 
rather  an  exercise  of  the  police  power  of 
the  state.  Aitken  v.  Wells  River,  70  Vt. 
308,  40  Atl.  829,  41 :  566 

Drainage. 

248.  A  statute  requiring  every  railroad 
company  to  drain  off  the  water  accumulat- 
ing along  its  right  of  way  from  the  con- 
struction of  the  road,  without  regard  to 
whether  such  water  is  detrimental  to  the 
public  health  and  welfare  or  injurious  to 
contiguous  lands,  and  providing  that  if 
any  company,  after  due  notice,  fail  to  com- 
ply with  the  statute,  a  proper  ditch  may 
be  constrticted  by  public  authorities,  upon 
petition  of  any  owner  or  tenant  of  land 
contiguous  to  the  road  feeling  himself  ag- 
grieved and  the  cost  assessed  upon  the  rail- 
road company,  is  unconstitutional  as  a 
taking  of  private  property  for  private  use. 
Chicago  &  E.  R.  Co.  v.  Keith,  67  Ohio,  279, 
65  X.  E.  1020,  60:  525 

■249.  A  statute  providing  for  the  cleaning 
of  drainage  ditches  and  the  assessment  of 
the  cost  thereof,  according  to  benefits,  upon 
the  ])arties  along  its  line  who  were  as- 
sessed for  the  cost  of  its  original  construc- 
tion, does  not  take  private  property  for 
public  use  without  compensation,  since  the 
property  occupied  by  the  ditch  was  taken 
by  its  original  construction,  when  the  par- 
ties along  its  line  whose  lands  were  taken 
had  ample  opportunity  to  obtain  com- 
pensation. Taylor  v.  Crawford,  72  Ohio 
St.  560,  74  N.  E.  1065,  69:  805 

Flowing  or  flooding  of  land. 

250.  Overflowing  land,  not  as  a  mere 
castial  trespass,  but  as  the  effect  of  raising 
the  water  above  high-water  mark  to  im- 
prove navigation,  is  a  taking  of  property. 
Carlson  v.  St.  Louis  River  Dam  &  1.  Co. 
73  Minn.  128,  75  N.  W.  1044,  41:  371 

251.  The  flowing  of  land  by  a  dam  for 
manufacturing  purposes  is  a  taking  within 
the  meaning  of  the  constitutional  provision 
regulating  the  taking  of  land  by  right  of 
eminent  domain.  Avery  v.  Vermont  Elec- 
tric Co.  75  Vt.  235,  54  Atl.  179.         59:  817 

252.  To  prohibit  the  flowing  of  water  up- 
on any  street  or  alley  from  a  flowing  well 
or  spring  is  not  a  taking  of  property  with- 
in the  constitutional  provision  on  that  sub- 
ject. Skaggs  v.  Martinsville,  140  Ind.  476, 
39  X.  E.  241,  33:  781 
Riparian  rights. 

253.  Any  actual  and  material  interfer- 
ence with  riparian  rights,  which  causes 
special  and  substantial  injury  to  the  own- 
er, is  a  taking  of  his  property.  Mansfield 
V.  Balliett,  65  Ohio  St.  451.  63  N.  E.  86. 

58:  628 

254.  The  wharfage  and  reclamation 
rights  of  the  owner  of  land  on  a  cove 
leading  off  from  a  river  are  not  destroyed 
oi  impaired  by  the  construction  of  an  em- 
bankment across  the  month  of  the  cove. 
Richards  v.  Xcw  York.  X.  H.  &  H.  R.  Co. 
77  Conn.  501,  GO  Atl.  295,  69:  929 


255.  The  building,  by  a  state  or  its  gran- 
tees, of  wharves  upon  the  shore  of  naviga- 
ble wat-ers,  will  not  constitute  either  a^ 
taking  or  damaging  of  the  private  prop- 
erty of  riparian  proprietors  for  pul)lic  usc., 
Eisenbach  v.  Hatfield,  2  Wash.  236.  26  Pac_ 
539,  12:  632. 

256.  Damage  to  rice  fields  by  the  con- 
struction of  a  dam  in  harbor  improvements^, 
thus  raising  the  low-water  level  in  a  navi- 
gable river,  and  destroying  the  drainage  of 
the  fields,  and  increasing  their  liability  to 
overflow  in  time  of  freshets,  does  not  con- 
stitute a  taking  of  the  property,  within  the 
meaning  of  the  constitutional  provision  for 
compensation.  The  rights  of  riparian  own- 
ers are  subordinate  to  the  power  of  the  gov- 
ernment to  control  and  improve  navigation. 
Mills    V.    United    States,    46    Fed.    738. 

12 :  673; 

257.  A  taking,  or  appropriation,  of  prop- 
erty, within  the  meaning  of  a  constitu- 
tional provision  requiring  the  payment  for 
property  taken  for  public  use,  is  not  effect- 
ed by  the  construction  of  bridge  piers  in  a 
navigable  river  and  the  dredging  of  thf 
channel  so  as  to  change  the  current  and' 
cause  it  to  run  directly  against  the  l)ank, 
tearing  and  carrying  away  portions  of  the 
land  of  the  riparian  owner.  Salliotte  v. 
King  Bridge  Co.  58  C.  C.  A.  466.  122  Fed. 
378,  65:  62a 

258.  Incidental  injuries  to  land  by  the 
washing  away  of  the  soil  of  the  banks  and 
bottom  of  a  stream,  caused  by  a  reasonable- 
increase  of  the  flow  of  water  at  certain 
times,  produced  by  a  dam  authorized  bv  the- 
legislature  to  facilitate  the  driving  of  logs, 
is  not  a  taking  of  the  property  of  a 
riparian  owner  for  which  compensation  is 
necessary.  Brooks  v.  Cedar  Brook  &  S.  C. 
R.  I.  Co.  82  Me.  17,  19  Atl.  87,  7:  460- 
Sewage. 

Consequential    Injuries    bv,    see    infra.    361— 

366. 
Assessment  for  Cost  of  Sewer  as,  see  Drain* 

and   Sewers,   15. 
For  Editorial  Notes,  see  infra,  V.  §  16. 

259.  The  destruction  of  oysters  by  the 
casting  of  sewage  upon  them,  though  the 
sewer  was  constructed  by  a  city  under  leg- 
islative authority,  is  as  clearly  a  taking  of 
the  property  of  the  owner  of  the  oyster 
bed,  for  which  he  has  a  constitutional 
right  to  compensation,  as  if  there  had  beoir 
a  physical  removal  and  conversion  of  the 
oysters.  Huffmire  v.  Brooklyn,  162  N.  Y. 
584,   57   N.   E.    176,  48:  421 

260.  The  lessening  of  the  value  of  an 
estate  by  destruction  of  the  grass  and  the 
creation  of  some  personal  discomfort  to 
the  owner  by  the  discharge  of  sewage  there- 
in is  not  such  a  taking  of  his  property  as 
entitles  him  to  compensation,  whore  the 
damage  results  from  the  discharge  of  sew- 
age into  a  stream  by  a  city  in  a  skilful 
manner  and  in  conformity  to  stattitc,  since 
the  damage  is  merely  consequential.  \'nl- 
paraiso  v.  Hagen,  153  Ind.  337,  54  X.  K. 
1062,  43:  707 


EMINENT  DOMAIN,  III.  b,  4,  c.  1. 


ItM 


4.  Crossing  Railroad. 

See  also  infra,  267. 

261.  The  crossing  or  intersecting  of  the 
road  of  one  railway  company  by  that  of  an- 
other is  the  taking  of  property  within  the 
meaning  of  constitutional  provisions  re- 
quiring compensation  to  be  made.  Mem- 
phis &  C.  R.  Co.  V.  Birmingham.  S.  & 
T.  R.  R.  Co.  96  Ala.  571,  11  So.  642, 

18:  166 

262.  There  is  no  taking  of  property  of 
a  raihoad  company  by  reason  of  the 
hindrance  and  burden  imposed  by  the  cross- 
ing of  its  tracks  by  a  street  railway  which, 
in  exercising  its  franchise  in  di\joyment  of 
the  public  easement,  is  laying  its  tracks 
along  the  street.  Chicago  &  C.  Terminal 
R.  Co.  V.  Whiting,  H.  &  E.  C.  Street  R.  Co. 
139  Ind.  297,  38  N.  E.  604,  26:  337 

263.  A  railroad  company  which  by  city 
ordinances  has  acquired  a  permanent  ease- 
ment in  streets  crossed  by  its  tracks  is  not 
entitled  to  compensation  for  the  crossing  of 
such  tracks  by  a  street  railway  laid  along 
the  street  under  permission  from  the  city, 
as  such  easement  is  in  subordination  to  the 
right  of  the  public  to  pass  along  the  streets, 
and  the  propelling  of  street  cars  is  only  a 
form  of  the  exercise  by  the  public  of  such 
right  of  passage,  and  does  not  operate  as 
an  infringement  upon  such  easement.  Chi- 
cago, B.  &  Q.  R.  Co.  V.  West  Chicago 
Street  R.  Co.  1.56  111.  255,  40  N.  E.  1008, 

29:  485 

264.  A  statute  requiring  any  railroad 
company  to  build,  at  its  own  expense,  a 
crossing  for  any  individual  whose  residence 
is  separated  by  the  railroad  from  a  public 
highwaj^  is,  if  such  crossing  is  to  be  con- 
sidered as  for  a  public  use,  unconstitutional 
in  taking  the  property  of  the  company  for 
public  nse  without  compensation.  People 
V.  Detroit,  G.  H.  &  M.  R.  Co.  79  Mich.  471, 
44  N.  W.  934,  7:  717 

c.   Right   to   Compensation. 

1.  Necessity  of  Making  Compensation. 

What    Constitutes    a    Taking    for    Which 

Compensation  Must  be  Made,  see  supra, 

TIT.  b. 
As  to  Consequential  Injuries  from  Taking, 

see  infra.  III.  e. 
As    to    What    Constitutes    an    Additional 

Servitude,  see  infra,  IV. 
To   whom    Failure   to   Make   Provision   for 

Compensation  Available,  see  Action  or 

Suit,  60. 
Where  Injury  to  Property  is  Authorized  by 

Statute,  see  Action  or  Suit,  41. 
Due   Process   of  Law   as   to,  see   Constitu- 
tional   Law    as    to,    see    Constitutional 

Law.  II.  b,  2,  6. 
On    Destruction    of    Property    Which    is    a 

Public     Nuisance,     see     Constitutional 

Law,  970. 
Anioinit  of  Recovery,  see  Damages.  III.  I. 
Proper  Remedy  for  Recovery  of  Damages, 

see  Election  of  Remedies,  11. 


On  Discontinuing  Highway,  see  Highways, 
V.  a,  2. 

Right  to  Enjoin  Use  of  Elevated  Railroad 
until  Compensation  is  made,  see  High- 
ways, 166. 

Requiring  City  to  Pay  for  Easement  for 
Park,    see   Municipal   Corporations,   58. 

Necessity  of  Pleading  Damages,  see  Plead- 
ing, 237. 

On  Crossing  of  Railroad  Track  by  Street 
Railway,  see  Railroads,  47,  48. 

On  Opening  Canals  for  Dockage,  see  Wa- 
ters, 30. 

For  Taking  or  Impairing  Riparian  Rights^ 
see  Waters,  179. 

See  also  Trial,  511. 

For   Editorial  Notes,   see  infra,  V.   §   18. 

265.  The  legislature  cannot  authorize  the 
taking  of  private  property  for  public  use 
without  just  compensation.  Abendroth  v. 
Manhattan  R.  Co.  122  N.  Y.  1,  25  N.  E.  496, 

11:  (534 

266.  The  charter  duty  of  a  railroad  com- 
pany to  pay  the  damages  inllicted  on  in- 
dividuals by  the  exercise  of  its  powers  is 
not  removed  because  it  is  compelled  by  the 
state  to  make  changes  in  its  roadbed  for 
the  public  good.  McKeon  v.  New  York,  N. 
H.  &  H.  R.  Co.  75  Conn.  343,  53  Atl.  656. 

61:  730 

267.  The  provision  of  Ala  Const,  art.  14, 
§  21,  that  "every  railroad  company  shall 
have  the  right  with  its  road  to  intersect, 
connect  with,  or  cross  any  other  railroad, 
and  shall  receive  and  transport  each  the 
other's  freight,  passengers,  and  cars,  load- 
ed or  empty,  without  delay  or  discrimina- 
tion,"— does  not  give  a  railroad  company 
the  right  to  cross  another  road  without 
compensation.  Memphis  &  C.  R.  Co.  v.  Bir- 
mingham, S.  &  T.  R.  R.  Co.  96  Ala.  571, 
11  So.  642,  18:  166 

268.  An  ordinance  vesting  in  a  committee 
the  power  to  condemn  property  within  a 
square  selected  as  the  site  for  the  court- 
house, if  unable  to  agree  with  the  owners, 
and  a  mere  delay  in  acquiring  title  after 
request  and  warning  by  a  landowner  and 
after  the  city  had  acquired  title  to  a  con- 
siderable part  of  the  square,  give  no  claim 
for  damages  because  of  the  uncertainty  of 
tenure  and  injury  to  business  to  the  owner 
of  a  long  lease  of  property  on  such  square 
which  is  in  use  for  a  hotel,  since  the  ordi- 
nance is  not  the  beginning  of  condemnation 
proceedings.  Shanfelter  v.  Baltimore,  80 
Md.  483,  31  Atl.  439,  27:  648 
To  municipality. 

269.  A  municipal  corporation,  though 
holding  the  title  to  its  streets,  has  no 
private  proprietary  interest  in  them  which 
entitles  it  to  compensation  when  they  are 
subjected  to  an  authorized  additional  pub- 
lic burden  by  the  construction  of  a  tele- 
phone line  therein;  but,  being  charged 
with  the  duty  of  keeping  the  streets  under 
its  control  in  repair,  it  may  be  allowed  com- 
pensation to  an  amount  sufficient  to  make 
the  repairs  rendered  necessary  by  such  ad- 
ditional use.  It  is  not  essential  that  provi- 
sion be   made   for  the  assessment  of  such 


11. 52 


EMINENT  DOMAIN.  Ill;  c.  1. 


«oiiipen8ation  by  a  jury.  Zanesville  v. 
Zanesville  Teleg.'  &  Telei)ii.  Co.  64  Ohio  St. 
07,  59  N.   E.  781,  52:  150 

To  owner  of  established  business. 
.\s   to   Consequential    Injuries   to   Business, 
see  intra.  -.US.  319. 

270.  A  farmer  who  supports  his  family 
from  the  products  of  the  farm,  and  for 
many  years  has  sold  his  surplus  in  a  neijjh- 
horing  town,  has  an  established  business 
within  the  meaning  of  a  statute  authoriz- 
ing the  construction  of  a  water-supply 
reservoir  upon  the  site  of  the  town,  and 
providing  compensation  for  any  established 
Imsiness  thereby  destroyed,  although  he 
has  no  regular  route  or  customers,  or  any- 
thing in  the  nature  of  good  will.  Allen  v. 
Com.  ISS  ;Mass.  ,>9.  74  X.  E.  287.  09:  599 
To  abutting  owner. 

On   Constructing    Railroad     in     Street,    see 

Highways,  142. 
I'se   of   Public   Money   to    Pay.    see    Public 

Moneys,  17. 
Eetrospective   Statute   as   to,   see   Statutes, 

544. 
See  also  supra,  41. 

271.  The  right  to  the  use  of  the  street 
in  front  of  abutting  lots  is  property  within 
the  protection  of  a  co'nstitutional  provision 
against  taking  property  without  compensa- 
tion. Spencer  v.^letropolitan  Street  R.  Co. 
120  Mo.   ir)4.  2:i  S.  W.  120.  22:  Oti8 

272.  An  abutting  owner,  whether  owning 
the  fee  in  the  highway  or  not,  has  certain 
proprietary  rights  which  cannot  be  taken 
away  without  compensation,  even  under  the 
autlioritv  of  the  legislature.  White  v. 
Northwestern  N.  C.  R.  Co.  113  N.  C.  610. 
IS   S.   E.   330.  22:  627 

273.  A  franchise  from  a  city  council  to 
construct  and  maintain  a  telephone  system 
in  the  city  cannot  authorize  the  occupancy 
of  the  streets  for  such  purpose,  against 
the  consent  of  abutting  property  owners, 
unless  compensation  is  made  to  them. 
Donovan  v.  Allert.  10  X.  D.  289.  91  X.  W. 
441.  58:  775 

274.  The  use  of  a  public  street  cannot  be 
granted  to  a  private  corporation  for  uses 
which  constitute  a  private  nuisance  and  re- 
sult in  injury  to  abutting  owners,  either 
by  legislative  enactment  or  a  city  ordi- 
nance, except  upon  making  compensation 
for  such  injurv.  Chicago  G.  W.  R.  Co.  v. 
First  M.  E.  Church.  42  C.  C.  A.  178.  102  Fed. 
85.  50:  488 
To  riparian  owner. 

See  also  Waters,  200. 

275.  Riparian  rights  are  property  of 
which  the  owner  cannot  be  deprived  with- 
out just  compen.sation,  though  taken  for,  or 
subjected  to.  a  public  use.  Mansfield  v. 
nal'lietl.    65    Ohio    St.    451.    03    X.    E.    86. 

58:  628 
270.  A  riparian  owner  whose  property 
ligiits  are  ajiprojniated  or  impaired  in  mak- 
ing a])propriations  of  water  for  irrigation 
(II  otliiT  ))nrposes  for  a  public  use,  as  au- 
thorized and  regulated  by  the  Xel)i-aska  ir- 
ligation  act  of  1S95.  is  entitled  to  coni- 
pciiNiition  for  the  injuiies  actually  ^us- 
laiiK'd.    to    be    lecovereil    in    a    suitable    ac- 


tion or  proceeding  instituted  for  such  pur- 
pose. Crawford  Co.  v.  Hall.  67  Xeb.  353, 
93  N.  W.   781,  60:  889 

277.  The  right  of  a  riparian  owner  to 
use  a  navigable  stream  for  floating  logs  is 
not  derived  from  the  state,  and  he  cannot 
be  deprived  of  such  right  without  just 
eonipeni«ition  in  some  form.  Hutton  v.  • 
Webb,   124   N.  C.   749.   33   S.   E.    169.   36  S. 

E.   341,  59:  33 

278.  When    soil   on   the   shore  of  a   navi- 
i  gable    water    is    granted    by    the    state    to 

private  owners,  certain  rights  pass  as  inci- 
dent to  the  grant,  with  which  the  state 
cannot  interfere  itself,  or  permit  others  to 
interfere,  except  for  public  uses,  and  then 
only  upon  making  compensation.  Shep- 
ard's  Point  Land  Co.  v.  Atlantic  Hotel,  132 
X.  C.  517.  44  S.  E.  39,  61:  937 

279.  The  right  of  a  city  to  take  water 
for  the  use  of  its  inhabitants  from  a  great 
public  pond  belonging  to  the  state  can  be 
granted  by  the  legislature,  without  making 
any  compensation  to  those  who  want  the 
water  for  the  use  of  mills.  Auburn  v. 
Union  Water-Power  Co.  90  Me.  576,  38  Atl. 
561,  38:  188 

280.  Compensation  must  be  paid  to  a 
riparian  owner  by  a  city  which,  in  estab- 
lishing harbor  lines,  appropriates  a  portion 
of  the  land  laying  between  high  and  low 
water  mark  adjacent  to  his  property,  un- 
der a  charter  which  gives  power  to  establish 
such  lines,  but  preserves  to  landowners  the 
same  rights  that  they  have  under  the  sec- 
tion of  the  charter  providing  for  opening 
highways,  where  the  latter  section  makes 
full  provision  for  compensation  for  what- 
ever damage  a  landowner  may  suffer. 
Farist  Steel  Co.  v.  Bridgeport.  60  C<mn.  278, 
22  Atl.  561.  13:  590 
For  land  taken  for  highways. 

281.  A  statute  denying  compensation  for 
ajiy  building  erected  on  land  after  filing  a 
map  of  a  proposed  street  across  it,  al- 
though proceedings  to  open  the  street  or 
condemn  the  land  have  not  been  begiui 
and  perhaps  never  will  be,  is  unconstitu- 
tional as  depriving  the  owner  of  property 
without  just  compensation.  Forster  v. 
Scott.  136  X.  V.  577,  32  N.  E.  976.       18:  543 

282.  The  exception  in  the  Xew  .leresy 
Constitution  from  the  provision  against 
taking  private  property  for  public  use  with- 
oTit  just  compensation,  of  all  land  taken 
for  public  highways  "as  heretofore  until 
the  legislature  shall  direct  compensation, 
to  be  made."  nuist  be  construed  in  connec- 
tion with  the  practice  of  the  state,  con- 
tiinied  from  1716  until  after  the  adoption  of 
the  Constitution  in  1844.  not  to  lay  out 
roads  more  than  4  rods  wide;  and  the 
legislative  ])ower  to  take  lands  for  high- 
ways without  compensation  is  limited,  ac- 
cordingly, to  highways  not  more  than  4 
rods  wide.  State,  Mangles.  Prosecutor  v. 
Hudson  CouiUv  Freeholders  (N.  .1.  Sup.)  55 
X.  .1.  I..  SS.  25  Atl.  .S22.  17:  785 
For  public  property. 

283.  Public  property  of  a  county  is  not 
within  the  protection  of  a  cojistitutionaj 
provision    that    private    property    shall    not 


EMINENT  DOMAIN,  III.  c.  2. 


1153 


be  taken  for  public  use  without  compensa- 
tion, lleffiier  v.  Cass  &  Morgan  Counties, 
193   111.   439,   62   N.   E.  201,  58:  353 

2.   Who  Entitled  to  the  Compensation. 

Riglits  under  Will,  see  Wills,  228. 
For   Editorial   Notes,    see    infra,    V.    §§    13, 
18. 

284.  Damages  by  the  construction  or 
operation  of  a  railroad  to  land  outside  the 
right  of  way  cannot  be  recovered  by  a  pur- 
chaser on  foreclosure  sale  who  first  bid  off 
the  tract  outside  the  rigtit  of  way  and 
then  the  right  of  way,  even  if  the  former 
owner  might  have  had  a  right  t^f  action 
for  such  damages.  St.  Louis,  K.  &  S.  W.  R. 
Co.  V.   Nyce,   61   Kan.   394,   59  Pac.    1040, 

48:  241 
Rights  of  the  state. 

285.  The  state,  as  owner  of  the  fee  of 
tide  lands  over  which  a  street  runs,  and  of 
lands  abutting  on  both  sides  of  the  street, 
is  entitled  to  damages  for  the  occupation 
of  the  street  for  ordinary  railroad  purposes. 
Seattle  &  M.  R.  Co.  v.  State,  7  Wash.  150, 
34  Pac.  551,  22:  217 
Municipality. 

286.  The  value  of  sewer  and  water  pipes 
owned  by  a  municipal  corporation,  and 
laid  under  streets  which  are  taken  by  the 
I'ederal  government  under  its  power  of 
eminent  domain  for  an  entirely  different 
use,  must  be  paid  to  the  municipality.  Na- 
hant  V.  United  States,  136  Fed.  273,  69:  723 
Married  woman. 

287.  An  inchoate  right  of  dower  is  liot 
such  an  interest  in  land  that,  when  the 
land  is  taken  by  the  right  of  eminent  do- 
main, the  wife  can  have  any  portion  of  the 
money  received  for  the  land  either  paid  to 
her  directly  or  set  aside  for  her  benefit  on 
the  contingency  of  her  surviving  her  hus- 
band. Flvnn  V.  Flynn,  171  Mass.  312,  50 
^'.  E.  650^  42:  98 
Mortgagors. 

288.  A  mortgagor  in  possession  is  to  be 
regarded  as  the  owner  of  the  land  for  all 
purposes  of  establishing  and  opening  lugh- 
wavs.  Goodrich  v.  Atchison  County,  47 
Kali.  355,  27  Pac.  1006,  18:  113 
Mortgagees. 

Right  to  Notice  of  Proceedings,  see  supra, 

169. 
For   Editorial   Notes,   see   infra,  V.    §§    13, 

15. 

289.  A  mortgagee  cannot  recover  for  con- 
sequential injuries  to  the  mortgaged  prop- 
erty from  the  construction  of  a  railroad, 
where  the  mortgagor  has,  without  fraud, 
made  an  amicable  settlement  for  such  dam- 
ages with  the  company.  He  has  no  right 
to  damages  as  mortgagee  as  distinguished 
from  the  damages  of  the  owner.  Knoll  v. 
New  York,  C.  &  St.  L.  R.  Co.  121  Pa.  467, 
15  At).  571,  1:  366 
Tenants. 

JNleasure    of    Tenant's    Recovery,    see   Dam- 
ages, 458. 

Condemnation  as  Affecting  Rent,  see  Land- 
lord and  Tenant,  198-200. 
L.R.A.  Dig.— 73. 


For   Editorial    Notes,    see   infra,   V.   §§    14, 
18. 

290.  The  right  of  a  tenant,  on  the  con- 
demnation of  leased  property,  is  to  the  ex- 
cess, if  any,  of  the  value  of  the  leasehold 
estate  over  the  rent.  Corrigan  v.  Chicago, 
144  111.  537,  33  N.  E.  746,  21 :  212 

291.  The  rights  of  a  lessee  of  a  stall  or 
stand  in  a  market  are  subject  to  all  qualifi- 
cations and  restrictions  which  the  munici- 
pality may  impose.  He  has  no  right  to 
the  ground  or  estate  in  the  building,  which 
will  sustain  an  action  for  damages  from 
the  condemnation  of  the  market  building 
for  a  railroad.  Strickland  v.  Pennsylvania 
R.  Co.  154  Pa.  348,  26  Atl.  431,  21 :  224 

292.  A  railroad  company  chargeable  with 
notice  of  a  lease  by  the  tenant's  possession 
cannot  discharge  its  liability  to  him  for  in- 
jury to  crops,  on  appropriating  the  land  in 
condemnation  proceedings,  by  payment  to 
the  landlord.  Lafferty  v.  Schuylkill  River 
East  Side  R.  Co.  124  Pa.  297,  16  Atl.  869, 

3:  124 

293.  Compensation  for  buildings  erected 
by  a  tenant  cannot  be  allowed  to  him  on 
condemnation  of  the  entire  property,  if  he 
has  covenanted  to  leave  them  on  the  land 
at  the  expiration  of  the  term,  although 
the  term  has  just  begun  and  has  many 
years  to  run.  Corrigan  v.  Chicago,  144 
HI.  537,  33  N.  E.  746,  21:212 

294.  Lessees  of  property  owned  by  a 
city,  upon  which  they  have  placed  a  build- 
ing, are  entitled  to  recover  damages  for 
injuries  to  such  building  through  the  in- 
terference with  light,  air,  and  access  by 
the  construction  in  the  adjoining  street  of 
an  elevated  road  under  authority  of  the 
municipal  authorities  given  subsequently 
to  the  execution  of  the  lease.  Storms  v. 
Manhattan  R.  Co.  178  N.  Y.  493,  71  N.  E. 
3,  66:  625 

295.  The  right  of  a  lessee  who  has  erected 
a  building  on  the  leased  premises  to  re- 
cover damages  for  injury  to  the  easements 
of  light,  air,  and  access  by  the  construc- 
tion of  an  elevated  road  in  the  adjoining 
street  is  not  destroyed  by  a  renewal  of  the 
lease  in  pursuance  of  its  covenants  after 
the  road  is  completed,  on  the  theory  that 
the  rent  must  have  been  fixed  with  refer- 
ence to  the  value  of  the  property  with  the 
road  in  existence.  Id. 

296.  The  renewal  in  accordance  with  its 
terms,  after  the  municipal  authorities  have 
authorized  the  construction  of  an  elevated 
railway  in  the  abutting  street,  of  a  lease 
of  property  upon  which  a  building  has  been 
erected  by  the  lessee,  does  not  have  the 
effect  of  an  original  lease  so  as  to  cut  off 
the  rights  of  the  lessee  to  damages  for  in- 
juries to  the  building  by  interference  with 
the  light,  air,  and  access.  Id. 
Reversioners. 

For  Editorial  Notes,  see  infra,  V.  §  14. 

297.  No  part  of  the  money  paid  upon  con- 
demnation for  a  public  park  of  lands  for- 
merly held  under  a  condition  subsequent 
for  use  as  a  cemetery  can  be  claimed  by 
those  entitled  to  re-enter  upon  breach  of 
the  condition,  where,  before  the  condenma- 


1154 


EMINENT  DOMAIN,  III.  d. 


tion,  the  condition  had  been  entirely  de- 
feated by  a  law  prohibiting  its  further  use 
for  cemetery  purposes.  Scovill  v.  McMa- 
hon,  62  Conn.  378,  26  Atl.  479,     .  21:  58 

d.  Payment  or  Security. 

See  also  infra,  381. 

For   Editorial  Notes,   see  infra,  V.   §   18. 

298.  A  direction,  on  paying  into  court  the 
amount  of  damages  assessed  in  eminent  do- 
main proceedings,  not  to  pay  it  over  pend- 
ing an  appeal,  is  void;  and  the  owners  of 
the  land  condemned  are  entitled  to  the 
money  if  satisfied  with  the  assessment. 
Consumers  Gas  Trust  Co.  v.  Harless,  131 
Ind.  446,  29  N.  E.  1062,  15:  505 
Sufficiency  of. 

299.  The  provision  that  a  warrant  for 
damages  in  case  of  an  unknown  owner  shall 
be  deposited  with  the  county  auditor  for 
his  use  violates  a  constitutional  provision 
that  compensation  shall  be  first  made  to  or 
paid  into  court  for  the  owner.  Martin  v. 
Tyler,  4  N.  D.  278,  60  X.  \A'.  392,       25:  838 

300.  An  order  drawn  by  drain  commis- 
sioners upon  a  drainage  fund  is  not  such  a 
payment  as  will  satisfy  the  constitutional 
provision  that  payment  shall  be  first  made 
on  taking  private  property   for  public  use 

Id. 

301.  Payment  into  court  of  the  assessed 
damages  in  eminent  domain  proceedings  is 
equivalent  to  a  tender,  and  sufficient  to 
authorize  taking  possession,  even  when  an 
appeal  is  prosecuted.  Consumers  Gas  Trust 
Co.  V.  Harless,  131  Ind.  446,  29  N.  E.  1062, 

15:  o05 

302.  Payment  into  court  of  an  award  of 
viewers  from  which  an  appeal  is  taken  by 
the  property  owners  is  not  sufficient  to 
satisfy  Pa.  Const,  art.  16,  §  8,  requiring 
just  compensation  to  be  "paid  or  secured 
before  the  taking,  injury,  or  destruction" 
of  property  in  eminent  domain  cases,  and 
therefore  the  act  of  May  14,  1889,  provid- 
ing that  on  such  payment  into  the  court 
the  right  to  use  the  property  shall  vest  in 
the  corporation  seeking  to  take  it,  and 
that  the  money  shall  remain  in  court  to 
await  the  final  judgment  on  appeal,  is  un- 
constitutional. Harrisburg,  C.  &  C.  Turnpk. 
Road  Co.  v.  Harrisburg  &  M.  Electric  R.  Co. 
177    Pa.    585,    35   Atl.    850,  34:  439 

303.  A  provision  that  a  water  company 
may  be  required  to  give  security  to  the 
selectmen  of  the  town  for  the  payment  of 
all  damages  awarded  for  lands  taken  by  it, 
which  may,  upon  becoming  insufficient,  be 
required  to  be  increased,  sufficiently  pro- 
vides for  compensation  to  justify  the  tak- 
ing of  the  land.  Old  Colony  R.  Co.  v. 
Franiingnam  Water  Co.  153  Mass.  561,  27 
N.   E.  662,  13:  332 

304.  Adequate  compensation  for  the  con- 
demnation of  the  right  to  float  logs  in  a 
stream  under  the  power  of  eminent  do- 
main is  not  made  where  its  recovery  is 
made  to  depend  on  the  responsibility  or 
solvency  of  an  individual  or  corporation, 
or   upon   a   bond   the    amount   of   wliich    is 


arbitrarih'  fixed  at  a  spociliod  sum  in  all 
cases,  regardless  of  what  may  be  the  value 
of  the  rights  appropriated  or  the  amount  of 
damage  inflicted,  and  which  is  to  be  ac- 
cepted without  anj-  opportunity  on  the 
part  of  the  landowners  to  question  the 
sufficiency  of  the  sureties.  Brewster  v. 
J.  &  J.  Rogers  Co.  169  N.  Y.  73,  62  N.  E. 
164,  58:  495 

305.  Possession  of  land  sought  to  be  con- 
demned pending  the  proceedings  cannot  be 
given  by  the  legislature  to  the  applicant 
upon  paj'ment  into  court  of  sufficient 
money  to  compensate  the  landowner  in 
case  the  land  is  finally  taken,  or  for  dam- 
ages in  case,  for  any  reason,  it  is  not  taken,^ 
under  a  Constitution  providing  that  private 
property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation 
having  been  first  made  to  or  paid  inta 
court  for  the  owner.  Steinhart  v.  Mendo- 
cino County  Super.  Ot.  137  Oal.  575,  70  Pac. 
629,  59:  404 

Necessity  of  giving  second  bond. 

300.  A  second  bond  is  not  required  from 
a  corporation  organized  under  the  Penn- 
sylvania act  of  1883  for  the  improvement 
of  the  navigation  of  a  stream,  which  has^ 
failed  to  agree  with  abutting -property  own- 
ers as  to  payment  of  damages,  before  it 
can  exercise  its  franchises,  if  it  has  given 
the  one  prescribed  by  §  5  of  that  act,  al- 
though §  4  provides  that  in  case  of  failure 
to  agree  as  to  damages  they  shall  be  as- 
sessed under  Pa.  act  1874,  §  41,  which  re- 
quires the  tender  of  a  bond  to  the  person 
claiming  damages,  (ienesee  Fork  Imp.  Co. 
V.  Ives,  144  Pa.  114,  22  Atl.  887,  13:  427 
Time  of  making  payment. 
Enjoining   Improvement    until    Payment    i» 

Made,  see  Injunction,  195. 
Rate    of    Interest    Allowed    for   Delay,    see 
Interest,  90. 

307.  A  municipal  corporation  taking  pri- 
vate property  for  public  use  is  within  the 
provision  of  N.  D.  Const,  art.  1,  §  14, 
requiring  compensation  to  be  "first  made 
to  or  paid  into  court  for  the  owner."  Mar- 
tin V.  Tyler,  4  N.  D.  278,  60  N.  W.  392, 

25:  838 

308.  The  ascertainment  and  payment  of 
damages  that  may  be  caused  by  a  change 
of  grade  of  a  street  is  a  condition  preced- 
ent to  the  right  of  tbe  municipality  to 
proceed  under  a  Constitution  providing  for 
just  compensation  to  the  owners  of  prop- 
erty taken  or  damaged  for  public  use. 
Searle  v.  Lead,  10  S.  D.  312,  73  N.  W.  101. 

39:  345- 

309.  Payment  of  the  damages  for  taking 
property  for  public  use  need  not  be  made 
as  soon  as  assessed,  under  a  constitutional 
provision  that  property  shall  not  be  taken 
for  such  use  withort  just  compensation 
"first  being  made,  or  secured  to  be  made 
to  the  owner  thereof,  as  soon  as  the  dam- 
ages shall  be  assessed;"  but  it  is  sufficient 
that  provision  for  payment  is  duly  se- 
cured when  the  damages  are  assessed,  al- 
though actual  payments  are  deferred. 
SissciM  V.  Hnena  N'ista  Countv,  128  Towa. 
442,    104   X.  W.   454,  "  70:440 


EMINENT  DOMAIN,  III.  e.  1,  2. 


1155 


e.  Consequential   Injuries. 
1.  In  General. 

As    to    What    Constitutes    a    Taking,    see 

supra,  III.  b. 
As    to   Necessity   of   Making   Compensation 

Generally,  see  supra.  III.  c,  1. 
As    to    What    Constitutes    an    Additional 

Servitude,  see  infra,  IV. 
As  Element  of  Damages,  see  Damages,  III. 

I.  3. 

310.  The  test  of  damage  requiring  com- 
pensation, caused  to  private  property  by 
a  public  improvement,  is  whether  a  cause 
of  action  would  arise  if  the  iifjury  was 
caused  by  a  private  person  without  author- 
ity of  statute.  Peel  v.  Atlanta,  85  Ga.  138, 
11  S.  E.  582,  8:  787 
Trinity  &  S.  R.  Co.  v.  Meadows,  73  Tex.  32, 
11    S. 'W.    145,  3:  565 

311.  The  injuries  resulting  from  the  prop- 
er construction  and  maintenance  of  an  im- 
provement under  the  power  of  eminent  do- 
main are  included  in  the  compensation  al- 
lowed therefor  in  the  original  condemna- 
tion proceedings.  Churchill  v.  Beethe.  48 
Neb.  87,  66  N.  W.  992,  35:  442 

312.  Private  property  is  not  "damage;! 
for  ])ublic  purposes"  by  a  public  improve- 
ment, within  a  constitutional  provision  re- 
quiring compensation  for  such  damages, 
where  no  invasion  is  made  of  any  right  or 
use  of  such  property.  Peel  v.  Atlanta,  85 
Ga.  138,  11  S.  E.  582,  8:  787 

313.  No  damages  can  be  recovered  on  ac- 
count of  a  public  improvement,  where  no 
property  is  actually  taken,  if  its  fair  mar- 
ket value  is  as  much  immediately  after  as 
before  the  improvement.  Springer  v.  Cly- 
cago,  135  111.  552,  26  N.  E.  514,  12:  609 

314.  Injury  to  the  interests  of  a  person, 
resulting  from  an  exercise  of  the  police 
power,  does  not  entitle  him  to  compensation 
under  the  law  of  eminent  domain,  if  no 
l)art  of  his  lands  or  property  is  taken 
therefor.  State  v.  Griffin,  69  iST.  H.  1,  39 
Atl.  260,  41:  177 

315.  A  clause  of  a  charter  authorizing 
land  to  be  taken,  which  makes  the  corpora- 
tion "accountable  to  the  owners  thereof 
lor  all  damages,'  does  not  include  conse- 
quential injuries.  Brooks  v.  Cedar  Brook  & 
S.  C.  R.  I.  Co.  82  Me.  17,  19  Atl.  87,    7:  460 

316.  The  lawful  operation  of  a  public 
work  owned  by  a  corporation  vested  with 
the  power  of  eminent  domain,  though  caus- 
ing depreciation  in  the  value  of  private 
property,  does  not  create  liability  on  the 
ground  that  such  property  is  "damaged  for 
public  purposes,"  within  the  meaning  of 
the  Georgia  Constitution  (Civ.  Code,  § 
5729),  unless  a  private  corporation  or  pri- 
vate individual  would  be  liable  for  similar 
acts  under  like  circumstances;  nor  is  a 
quasi  public  corporation  liable  where  pri- 
vate property  is  depreciated  in  value  as 
a  result  of  the  lawful  use  and  enjoyment 
of  the  company's  private  property.  Austin 
V.  Augusta  T.  R.  Co,  108  Ga.  67i,  31  S.  E. 
852,  47 :  755 


1317.  The  use  of  the  word  "damaged"  in 
that  clause  of  the  Georgia  Constitution 
(Civ.  Code,  §  5729),  which  provides  that 
private  property  shall  not  be  taken  or  dam- 
aged for  public  purposes  without  just  com- 
I  pensation,  does  not  change  the  substantive 
law  of  damages  or  create  a  cause  of  ac- 
tion where  none  previously  existed,  nor  does 
it  abrogate  the  principle  expressed  in  the 
phrase  "Dauinum  absque  injuria,"  Init  pre- 
serves all  existing  causes  of  action  for  dam- 
ages to  private  property,  and  prohibits 
exemptions  of  liability  for  such  damages, 
even   if  occasioned  by   public  uses.  Id. 

Injury  to  business. 
Necessity  of  Making  Compensation  for.  see 

supra,  270. 
As  Element  of  Damages,  see  Damages,  4.53, 
471. 

318.  A  statute  requiring  payment  of 
damages  for  injuries  to  a  business  through 
the  taking  of  property  for  public  use  is 
not  unconstitutional  on  the  ground  that 
taxes  cannot  be  levied  for  such  our  poses, 
Earle  v.  Com.  180  Mass.  579,  63  N."  E.  10. 

57 :  292 

319.  A  doctor  having  an  office  in,  and  a 
practice  e.xtending  throughout,  a  town  in 
which  land  is  taken  for  a  public  purp-)se,  is 
within  the  protection  of  a  statute  provid- 
ing for  compensation  to  any  individual 
owning  an  established  business  on  land 
within  the  town,  which  is  injured  by  the 
taking.  Id. 

2.  By  Construction  and  Operation   of  Rail- 
road. 

Injury  to  Water  Rights  by,  see  infra,  348, 

349,  357-359. 
As   to   Railroad   in   Street,   see   infra,   371- 

376,  390. 
Mortgagee's     Right     to    Recover     for,     see 

supra,    289. 
As  Element  of  Damages,  see  Damages,  498- 

501. 

320.  The  taking  of  a  route  for  a  rail- 
road, which  is  afterwards  abandoned  with- 
out building  the  road  there,  and  another 
route  selected,  does  not  prevent  recovery 
for    consequential    injuries    caused    by    the 

j  operation  of  the  road  on  the  later  location. 

I  Rudolph  v.  Pennsylvania  Schuj'lkill  V.  R, 
Co.  186  Pa.  541,  40  Atl.  1083,  47:  782 

I  321.  Damages  to  the  residue  of  a  tract 
of  land  over  which  a  railroad  right  of  way 
is  taken,  arising  from  the  construction  of 
the  road,  are  released  so  far  as  such  dam- 
ages could  be  taken  into  consideration  in 
assessing  the  compensation  for  the  right  of 
way  under  proceedings  for  condemnation, 
although  the  land  is  granted  to  the  com- 
])anv  without  such  proceedings.  Watts  v. 
Norfolk  &  W.  R.  Co.  39  W.  Va.  196,  19  S.  E. 
521,  23:  674 

322.  A  grant  of  land  to  a  railroad  com- 
pany while  a  state  Constitution  is  in  force 
which  permits  compensation  in  proceedings 
to  condenm  land  for  railroad  purposes  for 
the  land  taken  but  not  for  injuries  to  ad- 
joining land,  the  deed  not  stating  the  use  to 


1156 


EMINENT  DOMAIN,  III.  e,  2. 


which  the  land  is  to  be  applied,  does  not  pre- 
vent a  subsequent  grantee  of  the  grantor's 
adjoining  lands  from  maintaining  an  action 
against  the  railroad  company's  lessee  to  re- 
cover damages  for  injuries  resulting  to  his 
land  in  consequence  of  the  use  to  which 
the  railroad  land  is  put.  Wvlie  v.  Ehvood, 
134  111.  281,  25  X.   E.  570,     '  9:  726 

323.  Injurj'  to  a  dwelling  house  upon  tho 
residue  of  land  obtained  for  a  railroad  right 
of  way  caused  by  the  careful  blasting  of 
rock  ii!  the  construction  of  the  road  is  not 
the  subject  of  action;  but  rock  so  deposit- 
ed on  the  land  must  be  removed  within  a 
reasonable  time,  else  it  will  form  the  basis 
of  an  action.  Watts  v.  Norfolk  &  W.  R. 
Co.  39  W.  Va.   196,   19  S.  E.  521,       23:  674 

324.  Injury  to  a  private  way  from  the 
construction  of  a  railroad  on  land  granted 
for  that  purpose  by  the  owner  of  the  way 
is  not  the  subject  of  an  action;  but  injury 
to  a  public  road  peculiarly  affecting  such 
hmdowiier  is. 

325.  Injury  to  a  private  ferry  owned  by 
one  from  whom  the  right  of  way  had  been 
ol)taiiied,  arising  from  construction  of  a 
railroad  obstructing  an  approach  to  the 
ferry,  cannot  be  the  subject  of  an  action 
by  such  owner  against  the  company.         Id. 

326.  The  depreciation  in  the  value  of 
land  lying  along  the  highway,  due  to  the 
construction  of  a  railway  next  to  the  high- 
way on  tiie  opposite  side  thereof,  gives  the 
owner  a  right  to  compensation,  under  a 
constitutional  provision  that  private  prop- 
erty shall  not  be  taken  "or  damaged"  with- 
out just  compensation.  Lake  Erie  &  W.  R. 
Co.  V.   Scott,    132    111.   429,   24   N.   E.    78. 

8:  330 
Obstructing  access  to   street. 
Obstructing     Access     bv     Changing     Street 
Grade,    see    infra,   378-389. 

327.  An  action  at  law  will  lie  to  recover 
damages  for  obstructing  ingress  and  egress 
to  and  from  abutting  property  by  a  rail- 
road embankment  in  a  street.  Highland 
Ave.  &  B.  R.  Co.  v.  Matthews,  99  Ala.  24, 
10   So.   267,  14:  462 

328.  A  lot  owner  whose  only  means  of  in- 
gress and  egress  to  and  from  his  lot  by 
vehicles  is  from  a  street  into  which  opens 
the  one  on  which  his  premises  front,  and 
which  terminates  just  beyond  them,  may 
maintain  an  action  for  the  special  and 
peculiar  injury  resulting  to  him  from  a 
blockade  of  the  entrance  to  the  latter  street 
by  railroad  cars  on  the  other  street,  into 
which  it  opens.  Kiel  v.  Jackson,  13  Colo. 
378,  22  Pac.   504,  6:  254 

329.  A  person  owning  real  property  lo- 
cated on  a  street  cannot  be  deprived,  with- 
out compensation,  of  his  outlet  through 
such  street  to  other  streets,  in  either  di- 
rection, by  stopping  up  the  street  on  either 
side  between  his  property  and  the  nearest 
intersecting  street,  although  the  part  of  the 
street  discontinued  is  not  in  front  of  his 
land.  Gargan  v.  Louisville,  N.  A.  &  C.  R. 
Co.  89  Ky.  212,  12  S.  W.  259.  6:  340 

33(1.  Almtting  owners,  although  not  own- 
ing the  fee  in  a  street,  are  entitled  to  com- 
pensation   when    it   is    practically    and    sub- 


stantially closed  against  them  for  ordinary 
street  purposes,  under  authority  of  the  mu- 
nicipalitj-  which  owns  the  fee,  by  a  railroad 
embankment  therein  several  feet  high,  with 
perpendicular  stone  walls,  leaving  a  space 
only  8  or  9  feet  wide  for  a  carriage  way. 
IJeining  v.  New  York.  L.  &  W.  R.  Co.  128 
N.  Y.  157,  28  N.  E.  640,  14:  133 

331.  Erecting  an  embankment  about  14 
feet  high,  for  a  railroad  in  a  street,  there- 
by cutting  off  access  therefrom  to  abutting 
premises  and  damaging  the  light  and  air 
incident   thereto,  although  done   under   leg- 

,  islative  and  municipal  authority  and  after 
tne  municipal  corporation  had  discontinued 
that  part  of  the  street,  but  without  mak- 
ing the  necessary  compensation  to  the  abut- 
ting owners,  renders  the  railroad  company 
liable  for  the  resulting  damages  to  such 
owners.  Egerer  v.  New  York  C.  &  H.  R.  R. 
Co.  130  N.  Y.  108,  29  N.  E.  95,  14:  381 

332.  A  railroad  embankment  in  a  street 
which  appropriates  that  part  of  it  to  the 
practically  exclusive  use  of  a  railroad  is 
not  a  mere  change  of  grade  which  tan  be 
made  without  compensation  to  an  abut- 
ting owner,^at  least  where  the  grant  of 
authority  to  occupy  the  street  did  not  pur- 
port to  be  an  exercise  of  that  power.  Rein- 
ing V.  New  York,  L.  &  W.  R.  Co.  128  N.  Y. 
157,  28  N.  E.  640,  14:  133 

333.  Injury  to  other  abutting  owners  by 
the  deposit  in  the  street  by  a  railroad  com- 
pany, whose  right  of  way  abuts  thereon,  of 
machinery  and  building  materials  while  it 
is  engaged  in  elevating  its  tracks,  in  the 
exercise  of  due  care  and  only  for  a  reason- 
able time,  does  not  entitle  such  owners  to 
compensation.  McKeon  v.  New  York.  N. 
H.  &  H.  R.  Co.  75  Conn.  343,  53  Atl.  656, 

61:730 

334.  The  temporary  occupation  of  a  high- 
way with  rails,  by  a  railroad  company,  for 
its  convenience  while  elevating  its  roadbed 
to  abolish  a  grade  crossing  over  a  highway, 
entitles  the  abutting  owner  in  whom  resides 
the  fee,  and  whose  access  to  and  from  his 
property  is  thereby  destroyed,  to  compensa- 
tion. Id. 

335.  The  state  cannot,  under  its  police 
power,  authorize  a  railroad  company  to 
utilize  a  public  highway  as  its  roadbed 
while  it  is  elevating  its  tracks  to  abolish  a 
grade  crossing  without  making  compensa- 
tion for  destruction  of  the  access  of  the 
abutting  owner  in  whom  resides  the  fee. 

Id. 

336.  The  liability  of  a  railroad  company 
to  abutting  owners  for  constructing  an  em- 
bankment for  its  track,  which  practically 
closes  the  street  to  such  abutters  for  or- 
dinary street  purposes,  does  not  extend  to 
per.sons  whose  premises  abut  only  on  an- 
other street  in  which  a  corresponding  em- 
l>anknient  is  made  solely  to  change  the 
grade  so  far  as  -the  railroad  embankment 
at  the  intersection  of  the  streets  makes 
it  necissarv.  Rauenstein  v.  New  York,  L. 
&  W.  R.  Co.  136  N.  Y.  528,  32  N.  E.  1047, 

18:  768 

337.  No  actionable  interference  with  ac- 
cess   to    abutting    property    exists    in    case 


EMINENT  DOMAIN,  III.  e.  3. 


1157 


railroad  tracks  are  carried  diagonally  across 
a  street  upon  a  bridge  23  feet  above  the 
surface,  although  the  convenient  approach 
to  the  property  with  horses  may  be  in- 
"terfered  with  becaus^e  of  their  liability  to 
fright.  .Tones  v.  Erie  &  W.  \".  R.  Co."  151 
Pa.   30.   25   Atl.    134,  17:  758 

338.  Obstruction  of  a  cross  street  used 
by  a  property  owner  in  gaining  access  to 
his  propertj',  but  which  does  not  destroy 
such  access,  Ts  not  an  injury-  for  which  com- 
pensation must  be  made,  under  a  constitu- 
tional provision  requiring  the  making  of 
compensation  in  case  private  property  is 
damaged  for  public  use.  Smith  v.  St.  Paul, 
:\1.  &  M.  R.  Co.  39  Wash.  355,  81  Pac.  840, 

*,70:  1018 
Crossing  railroad. 

339.  A  railroad  company  having  the  right 
to  use  a  street  for  its  tracks  has  no  such 
peculiar  right  as  entitles  it  to  compensa- 
tion, within  the  meaning  of  Mo.  Const,  art. 
2.  §  21,  relating  to  the  taking  or  damaging 
of  private  property  for  public  uses,  for 
the  damage  resulting  from  delay  and  in- 
convenience in  the  movement  of  its  trains 
by  laying  the  track  of  another  railroad 
across  its  tracks  in  such  highway.  Kan- 
sas City,  St.  J.  &  C.  B.  R.  Co.  v.  St.  Joseph 
Terminal  R.  Co.  97  Mo.  457,  10  S.  W.  826, 

3:  240 
Noise,  smoke,  etc. 

340.  If  an  elevated  railroad  is  unlawfully 
erected  in  a  public  street  as  against  an 
owner  of  abutting  property,  the  latter  may 
recover  damages  from  the  company  for 
consequential  injiiries  to  such  property, — 
such  as  the  inconvenience  caused  by  the 
noise  of  trains.  Kane  v.  New  York  Kiev. 
R.   Co.    125   N.    Y.    164,   26   N.    E.   278, 

11:  640 

341.  Injury  to  neighboring  property  by 
the  jarring  of  the  earth,  the  casting  there- 
on of  soot  and  cinders,  and  the  emission 
of  smoke,  physically  injuring  it,  is  within 
the  protection  of  a  constitutional  provision 
requiring  compensation  for  property  dam- 
aged for  public  use.  Smith  v.  St.  Paul,  M. 
&  M.  R.  Co.  39  Wash.  355,  81  Pac.  840, 

70:  1018 

342.  Compensation  for  injuries  to  neigh- 
boring property  as  the  necessary  result  of 
the  careful  and  skilful  operation  of  a 
railroad,  and  which  are  caused  by  the  usual 
noises,  fumes,  and  odors  attendant  there- 
on, is  not  required  by  a  constitutional  pro- 
vision for  compensation  in  case  private 
property  is  damaged  for  public  or  private 
use.  Id. 

343.  Damages  are  recoverable  for  diminii- 
tion  in  the  value  of  property  by  reason  of 
the  vibration,  noise,  smoke,  and  noxious 
vapors  and  cinders  incident  to  the  running 
of  trains  near  the  property,  although  no 
pait  of  the  property  was  taken,  under  a 
constitutional  provision  that  no  person's 
property  shall  be  taken,  damaged,  or  de- 
stroyed for.  or  applied  to.  public  use.  with- 
out adequate  compensation  being  made. 
Gainesville.  H.  &  W.  R.  Co.  v.  Hall,  78 
Tex.   169,   14   S.  W.  259,  9:  298 


344.  Mere  exposure  to  noise,  smoke,  dust, 
and  the  danger  of  horses  becoming  fright- 
ened by  moving  trains,  in  consequence  of 
the  construction  of  a  railroad,  is  not  an 
actionable  injiuy.  Jones  v.  Erie  &  W.  V. 
R.  Co.  151  Pa.  30,  25  Atl.  134,  17:  758 

345.  Diminution  in  the  market  value  of 
property  resulting  from  the  noise,  smoke, 
and  cinders  caused  by  the  operation  of  a 
railroad  does  not  "damage"  the  property, 
within  the  meaning  of  the  Georgia  Consti- 
tution (Civ.  Code,  §  5729),  requiring  com- 
pensation for  private  property  damaged  for 
public  purposes,  in  the  absence  of  any  phys- 
ical interference  with  the  property  or  with 
a  right  or  use  appurtenant  thereto.  Austin 
v.  Augusta  T.  R.  Co.  108  Ga.  671,  34  S.  E. 
852,  47:  755 

346.  The  owner  of  property  abutting  on 
a  city  street  near  a  street  railway  turn- 
table cannot  recover  damages  inuler  Ky. 
Const.  §  242,  authorizing  compensation  for 
property  "injured,"  by  reason  of  the  loca- 
tion and  operation  of  the  sti'eet  railway 
turntable  and  the  noises,  smells,  and  dis- 
turbances that  are  reasonable  incidental  to 
the  operation  of  a  street  railway  in  a  city 
and  borne  by  the  public  generally,  but  may 
uecover  for  any  substantial  injury  caused 
by  such  noises,  smells,  and  disturbances  so 
far  as  they  are  not  fairly  incidental  to  the 
usual  operation  of  such  a  street  railway 
and  borne  by  the  property  owners  gen- 
erally along  the  line.  LoTiisville  R.  Co. 
V.  Foster,  108  Ky.  748,  57  S.  W.  480,  50:  813 

3.  As  to  Water  or  Water  Rights;    Sewage. 

See  also  Miuiicipal  Corporations.  514. 

347.  Although  a  riparian  proprietor  has 
the  right,  as  an  abstract  proposition  of  law, 
to  the  ordinary  natural  flow  of  a  stream, 
such  rule  furnishes  no  basis  for  compensa- 
tion where  water  is  appropriated  for  ir- 
rigation purposes;  but  in  order  to  entitle 
him  to  compensation  in  such  case,  he  must 
suffer  an  actual  loss  or  injury  to  his  ri- 
parian estate,  which  the  law  recognizes  as 
belonging  to  him  because  of  his  right  to 
the  use  and  enjoyment  of  the  water  of 
which  he  is  deprived.  Crawford  Co.  v. 
Hall.  67  Neb.  889.  93  N.  W.  781,       60:  889 

348.  A  fill  or  bar  imnecessarily  made  in  a 
stream  by  placing  and  throwing  into  it 
rock  and  other  refuse  material  in  construct- 
ing a  railroad,  to  the  injury  of  a  millsite 
on  the  residue  of  the  land  over  which  the 
right  of  way  is  taken,  constitutes  a  private 
nuisance  and  ground  of  action  against  the 
company.  Watts  v.  Norfolk  &  W.  R.  Co.  39 
W.  Va."  196.   19  S.  E.  .521.  •  23:  674 

.349.  .\  railroad  company  whicli  has  care- 
fully and  skilfully  constructed  its  road 
under  lawful  authority  is  not  liable  for  an 
injury  to  a  water  mill  by  the  clogging  of 
its  wheel  and  a  partial  filling  of  its  reser- 
voir and  a  stream  of  water  by  sand  which 
was  loosened  by  the  construction  of  the 
road  and  washed  away  by  heavy  rains. 
Trinity  &  S.  R.  Co.  v!  Me"adows,  73  Tex. 
.32,  US.  W.  145,  3:  .565 


1158 


EMINENT  DOMAIN,  III.  e,  3. 


350.  The  rights  of  the  owner  of  land 
bordorinj:  on  tide  water  cannot  be  abridged 
by  tlie  const rutt ion  of  a  speedway  upon  the 
tideway  along  his  water  front  under  au- 
thority of  the  state,  without  making  com- 
jK'iisation  to  him  for  the  injury  caused 
thereby,  where  the  use  of  the  speedway  is 
limited  to  the  pursuit  of  pleasure  in  driving, 
riding,  or  walking,  and  all  forms  of  connner- 
cial  traflic  are  rigidlv  excluded  therefrom. 
Re  Xew  York.  168  n!  Y.  134,  61  X.  E.  158, 

56:  500 

351.  Lowering  the  water  of  a  navigable 
river  by  drawing  it  through  a  drainage  ditch 
so  as  to  obstruct  ingress  to  and  egress  from 
abutting  property  is  within  a  constitutional 
provision  requiring  compensation  in  case 
private  property  is  damaged  for  public  use. 
and  liability  for  damages  cannot  be  defeated 
on  the  ground  that  the  act  was  an  exercise 
of  the  police  power  for  the  promotion  of  the 
public  health.  Beidler  v.  Sanitary  District, 
211  111.  628,  71  N.  E.  1118.  "  67:  820 
In  improving  navigation. 

352.  The  right  of  the  public  to  improve 
navigation  without  liability  for  conse- 
quential injuries  to  riparian  rights  does  not 
inclnde  the  right  to  take  the  water  of  a 
navigable  stream  to  su])ply  an  artificial 
channel  or  canal.  Beidler  v.  Ranitarv  Dis- 
trict. 211   in.  628,  71  X.  E.   1118,       67:820 

353.  Rnising  the  waters  of  a  river  beyond 
the  natural  usual,  and  ordinary  highwater 
mark,  for  the  purpose  of  improving  the  nav- 
igation, gives  a  riparian  owner  wlio:=e  lands 
are  thereby  overflowed  a  right  to  damages, 
although  the  water  is  raised  by  dams  con- 
structed under  legislative  authority.  Carl- 
son V.  St,  Louis  Kiver  Dam  &  T.  Co.  73 
Minn.  128,  75  X.  W.  1044,  41:  371 

354.  A  public  corporation  organized  to 
provide  a  drainage  system  cannot  contest 
its  liability  to  make  compensation  for  in- 
juries done  to  riparian  owners  by  taking 
waler  from  a  navigable  stream  to  supply 
its  ditch,  upon  the  ground  that  incidentally 
it  has  created  a  navigable  channel,  and 
Ihat  the  public  is  not  liable  for  injuries  to 
riparian  owners  in  consequence  of  the  im- 
)>roven,ent  of  navigation.  Beidler  v.  Sani- 
tarv  District.  211  111.  628,  71  X.  E.  1118, 

67 :  820 
Obstmcting  access  to  water. 

355.  A  riparian  owner's  right  of  ingress 
and  egress  to  his  water  front  does  not  in- 
clude a  right  to  compensation  for  an  inter- 
ference therewith  caused  by  the  public  im- 
])rovenunt  of  the  water  front  for  the  benefit 
of  navigation.  Sage  v.  Xew  York,  154  X.  Y. 
61.  47  X.  E.  1006.  38:  606 

3">().  Shutting  ofl"  the  access  of  a  riparian 
owner  to  navigable  waters  by  construction 
of  a  railroad  embankment  a^-ross  the  water 
front  entitles  him  to  such  damages  as  he 
may  thereby  sustain,  unless  he  has  granted 
the  right  or  it  has  been  obtained  by  the 
power  of  eminent  domain.  Rumsev  v.  Xew 
York  &  X.  E.  R.  Co.  133  X.  ^^  79.'. 30  X.  E. 
6.-)4,  15:618 

357.  A  railroad  company  may.  luider  leg- 
islative authority,  closo  the  entrance  to  a 
navigable   cove   without    making   compensa- 


tion to  the  owners  of  property  on  the  cove, 
the  value  of  which  is  thereby  diminished, 
under  a  Constitution  reijuiring  compensation 
to  be  made  only  for  property  taken  for  pub- 
lic use.  Frost  v.  Washington  County  R. 
Co.   06   Me.   76,   51   Atl.    806,  59:  68 

358.  Xo  recovery  can  be  had  by  the  owner 
of  land  on  a  cove  leading  off  from  a  river 
for  interference  with  his  right  of  access 
from  his  land  to  the  river  by  the  construc- 
tion of  a  railroad  track  across  the  mouth  of 
the  cove,  where  the  access  is  not  entirely 
cut  off,  and,  because  of  the  limited  extent 
of  the  cove,  and  the  shallowness  of  its  wa- 
ters, the  right  is  not  essentially  impaired. 
Richards  v.  Xew  York,  X.  H.  &  H.  R,  Co. 
77  Conn,  501,  60  Atl.  295,  69:  929 

Damage  by  surface  water. 
Due  to  Change  of  Grade,  see  infra,  389. 

3.59.  The  lack  of  any  constitutional  pro- 
vision against  taking  property  foi  public 
use  without  just  compensation  does  not  pre- 
vent a  railroad  company  from  becoming 
liable  for  consequential  damages  to  property 
incidentally  injured  by  the  construction  of 
its  road  under  legislative  authority, — as  in 
case  of  diversion  of  surface  water  to  the  in- 
jury of  a  neighboring  proprietor.  Staton 
V.  Norfolk  &  C.  R.  Co.  Ill  N.  C.  278,  16  S. 
E.   181,  17:  838 

360.  The  constitutional  provision  that  pri- 
vate property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation 
does  not  render  a  city  liable  for  damages  to 
property  from  surface  water,  where  a  pri- 
vate individual  would  not  be  liable.  .Jordan 
v.  Bcnwood,  42  W.  Va,  312,  26  S.  E.  266, 

36:  519 
Pollution  of  water;    sewage. 
Injury  by  Sewage  as  a  Taking  of  Property, 
see  supra,  259,  260. 

361.  Property  of  riparian  owners  is  taken 
for  public  use  within  the  meaning  of  a  con- 
stitutional provision  as  to  eminent  domain, 
when  they  are  damaged  by  the  pollution  of 
the  waters  above  the  ebb  and  flow  of  the 
tide,  but  not  when  the  water  is  polluted  at 
a  place  where  the  tide  ebbs  and  flows.  Grey 
ex  rel.  Simmons  v,  Paterson  (N.  J.  Err.  & 
App.)   60  X^.  J.  Eq.  385,  45  Atl.  995,  48:  717 

362.  Damages  resulting  to  the  property  of 
riparian  owners  by  the  discharge  of  city 
sewage  into  a  stream  in  a  skilful  manner 
and  in  conformity  to  statute  are  merely 
consequential  and  give  them  no  right  to 
oompeupation.  Valparaiso  v.  Hagen,  153 
Ind.  .337,  54  XL  E.  1062,  48:  707 

303.  Damage  to  a  riparian  owner  by  nox- 
ious and  filthy  substances  deposited  on  his 
premises  in  consequence  of  the  pollution  of 
the  river  by  sewers  emptying  into  it  above 
his  land  is  not  a  mere  consequential  dam- 
age, but  a  direct  appropriation  of  his  well- 
recognized  property  rights  which  are  within 
the  guaranty  of  the  Constitution.  Piatt 
Bros.  &  Co,  V.  Waterburv,  72  Conn.  .531,  45 
Atl.  154,  "  48:  691 

.364  The  pollution  of  a  river  by  city  sew- 
ers, though  it  may  become  justifiable  when 
done  for  a  public  purpose,  is  subject  to  pay- 
ment of  compensation  for  the  invasion  of 
the  property  right   of  riparian  owners.     Id. 


EMINENT  DOMAIN,  III.  e,  4. 


1159 


365.  Lack  of  charter  authority  to  condemn 
the  property  rights  of  a  riparian  owner  will 
not  relieve  a  city  from  liability  to  make 
compensation  for  damage  to  such  rights  by 
the  unlawful  pollution  of  a  river  by  sewers. 

Id. 

366.  The  fact  that  sewers  are  necessary 
to  a  city  and  that  a  statute  directs  that 
they  shall  follow  as  near  as  practicable  the 
natural  drainage  of  the  country  does  not 
justify  the  city  in  discharging  sewers  into 
a  stream  to  the  damage  of  a  landowner, 
without  just  compensation  to  him,  as  re- 
quired by  constitutional  provision  against 
taking  or  damaging  private  property  with- 
out just  compensation.  Smith  v.  Sedalia, 
152  Mo.  283,  53  S.  W.  907,      ,  48:  711 

4.  As  to  Streets  or  Highways. 

Injury  from  Street  Railway  Turntable,  see 
supra,   346. 

.j(J7.  The  owner  of  a  lot  which  extends  to 
the  side  of  a  public  street  has  an  easement 
in  the  street  for  light,  air,  and  access  for 
the  benefit  of  his  abutting  property,  which 
constitute  private  property,  within  the 
meaning  of  the  constitutional  provision  that 
private  property  shall  not  be  taken  for  pub- 
lic use  without  just  conipensation.  Aben- 
■droth  V.  ^Manhattan  R.  Co.  122  N.  Y.  1,  25 
X.  E.  496,  11:  634 

368.  The  fact  that  the  title  to  the  bed  of 
a,  street  is  in  private  individuals  will  not 
prevent  the  acquisition  by  the  owner  of 
land  bordering  on  such  street  of  rights  as 
against  the  public  in  the  nature  of  ease- 
ments, Avhich  will  prevent  the  public  from 
devoting  such  street  to  uses  inconsistent 
with  its  free  use  as  a  street,  without  mak- 
ing compensation  to  him.  Kane  v.  New 
York  Elev.  R.  Co.  125  N.  Y^  164,  26  N.  E. 
278,  11:640 

369.  If  the  owner  of  property  bordering 
on  a  ])ublic  street  in  which  a  trust  has  been 
established  to  have  the  same  kept  open  for 
the  benefit  of  the  public  accepts  and  acts 
upon  such  trust  by  erecting  buildings  on 
his  property,  he  thereby  acquires  an  ease- 
ment in  the  street  for  light,  air,  and  ac- 
cess for  the  benefit  of  his  adjoining  proper- 
ty, which  in  itself  constitutes  property  of 
which  he  cannot  be  deprived  by  tJie  devo- 
tion of  the  street  to  other  and  inconsistent 
uses,  without  compensation.  Id. 
Establishment  of. 

Setting  off  Advantages  from,  see  Damages, 

336,  337. 
Elements   of  Damages,   see   Damages,   522- 

525. 

370.  Opening  a  public  street  adjacent  to 
one's  property,  thus  bounding  it  by  streets 
on  three  sides,  rendering  it  ungainly  and 
unsightly  to  the  public,  and  destroying  its 
privacy,  and  thus  diminishing  its  value,  does 
not  give  the  owner  a  right  to  compensation 
under  a  constitution  declaring  that  private 
property  shall  not  be  taken  or  damaged 
without  just  and  adequate  compensation. 
Peel  V.  Atlanta,  85  Ga.  138,  11  S.  E.  582, 

8:  787 


Railroad  in. 

Reducing  Width  of  Street  by,  see  infra,  390. 

Obstructing  Access  to  Street  by  Railroads, 

see  supra,  327-338. 
-Measure  of  Damages  for,  see  Damages,  III. 

;}71.  No  action  will  lie  by  an  abutting  lot- 
owner  who  does  not  own  the  fee  in  the 
street,  for  injury  which  merely  results  from 
the  legal  and  reasonable  use  of  a  public 
street  by  a  railway  company,  and  which 
leaves  his  right  of  ingress  and  egress  rea- 
sonablv  sufficient.  Iron  Mountain  R.  Co.  v. 
Bingham,  87  Tenn,  522,  11  S.  W.  705, 

4:  622 
Electric  railway  in. 

372.  Poles  of  an  electric  railway,  if  prop- 
erly placed,  do  not  give  ground  of  complaint 
to  an  abutting  owner,  whether  he  owns  the 
fee  of  the  street  or  not.  Snyder  v.  Fort 
Madison  Street  R.  Co.*  105  Iowa,  284,  75  N. 
W.  179,  41 :  345 

373.  The  depreciation  of  the  property  of 
abutting  owners  by  the  exclusive  use  of  a 
portion  of  the  street  by  a  trolley  company's 
poles  and  wires  gives  a  right  to  compensa- 
tion under  Neb.  Const,  art.  1,  §  21,  which 
provides  that  property  shall  not  be  "taken 
or  damaged"  for  public  use  without  just 
compeiisation.  -Jaynes  v.  Omaha  Street  R. 
Co.  53  Neb.  631,  74  N.  W.  67,  39:  751 
Elevated  railroad  in. 

Injury  Caused  by  Noise  of  Trains,  see  su- 

p*ra,  340. 
Measure   of  Damages,   see  Damages,  III.   1, 
4,  b. 

:]7 1.  The  owner  of  an  apartment  hous^ 
cannot  recover  damages  from  an  electric 
elevated  railroad  company  whose  tracks 
cross  the  highway  within  19  feet  of  his 
property  where  the  injury  differs  from  that 
suffered  by  the  general  public  only  in  the 
proximity  of  the  tracks,  even  under  a  con- 
stitutional provision  that  private  property 
shall  not  be  damaged  for  public  use  without 
compensation.  Aldrich  v.  Metropolitan  West 
Side  Elevated  R.  Co.  195  111.  456,  63  N.  E. 
155,  57:237 

375.  Interference  with  easements  of  light 
and*  air  by  an  elevated  railroad  in  a  street 
gives  an  owner  of  abutting  property  no 
right  to  damages,  if  the  building  of  the 
road  has  actually  caused  an  increase  in  the 
value  of  such  property,  even  if  it  has  bene- 
fited other  abutting  owners  still  more. 
Somers  v.  Metropolitan  Elev.  R.  Co.  129  N. 
Y.  576,  29  N.  E.  802,  14:  344 

378.  If  an  elevated  railroad  is  erected  in 
a  city  street  in  front  of  property  which  ex- 
tends to  the  side  of  the  street,  in  such  a 
manner  as  to  obstruct  the  light  which  would 
otherwise  reach  such  property,  and  as  to 
cause  smoke  and  cinders  from  the  engines 
used  on  the  road  to  enter  the  buildings  on 
the  property,  and  thereby  diminish  its  value, 
its  owner  is  entitled  to  compensation  for 
the  damage  so  inflicted.  Abendroth  v. 
Manhattan  R.  Co.  122  N.  Y.  1,  25  N,  E.  496, 

11:  634 
Subway  in. 

377.  Damage  to  a  dwelling  house  by  set- 
tling and  cracking  of  the  walls,  caused  by 


1160 


EMINENT  DOMAIN,  IV.  a. 


the  improper  manner  of  performing  the 
work  of  constructing  a  subway  on  a  street, 
cannot  he  assessed  as  part  of  the  compensa- 
tion given  by  Pa.  Const,  art.  16,  §  8,  for 
property  "taken,  injured,  or  destroyed"  by 
the  construction  of  public  improvements, 
since  those  damages  extend  only  to  inju- 
ries which  are  the  direct,  immediate,  and 
necessary  or  inevitable  consequence  of  the 
act  of  eminent  domain  itself,  irrespective  of 
care  or  negligence  in  the  doing  of  it.  The 
only  appropriate  remedy  for  injury  by  negli- 
gent performance  of  the  work  is  by  action 
of  trespass.  Stork  v.  Philadelphia,  195  Pa. 
101,  45  Atl.  678,  49:  600 

Establishment  or  change  of  grade. 
Abandonment  of  Right  of  Action  for,  see 
Action  or  Suit,  49. 
378.  The  establishment  of  a  street  grade 
several  feet  above  the  natural  surface  of  the 
ground  by  a  mere  ordinance,  without  any 
actual  improvement  of  the  street  in  accord- 
ance therewith :  and  a  subsequent  ordinance 
changing  the  grade  line  to  conform  to  the 
surface  of  the  ground;  and  a  permanent  im- 
provement of  the  street  on  that  grade. — en- 
title one  who  has  erected  his  building  to 
conform  to  the  grade  established  by  the  first 
ordinance  while  that  was  in  force,  to  the 
benefit  of  Iowa  Code,  §  469,  which  provides 
for  compensation  to  a  person  whose  proper- 
ty is  injured  by  the  change  of  an  estab- 
lished grade  of  the  street.  Ressegieu  v. 
Sioux  City.  94  Iowa,  543,  63  N.  W.  184. 

28:  389 
■  379.  Damages  by  the  gi-ading  of  a  street 
in  front  of  one's  premises,  although  no  prior 
grade  had  been  established,  are  within  the 
provisions  of  the  Constitiition  against  tak- 
ing or  damaging  property  without  just  com- 
pensation. Searle  v.  Lead,  10  S.  D.  312.  73 
K  W.  101,  39:  345 

380.  Injury  caused  to  abutting  property 
by  the  original  establishment  of  the  grade 
of  a  street  is  as  much  within  the  prohibi- 
tion of  a  constitutional  provision  that  prop- 
erty shall  not  be  taken  or  damaged  for  pub- 
lic use  without  compensation  as  that  caused 
by  subsequent  changes  of  grade.  Less  v. 
Butte,  28  Mont.  27.  72  Pac.  140,  61:  601 

381.  A  statute  giving  a  right  of  action 
for  damages  to  property  caused  by  grading 
a  street  without  consent  of  or  compensation 
to  the  owner  cannot  make  it  lawful  to  cause 
such  injury  without  first  paying  the  com- 
pensation to  him  or  into  court,  as  required 
bv  Mo.  Const,  art.  2.  §  21.  St.  Louis  v. 
Hill.  116  y\o.  ,527.  22  S.  W.  861.         21:226 

382.  For  damages  to  buildings  erected  aft- 
er the  adoption  of  a  paper  grade  line,  but 
before  actual  physical  grading  conforming 
a  street  to  that  line,  there  can  be  no  re- 
coverv.  Blair  v.  Charleston.  43  W.  Va.  62. 
26  S."  E.  .341.  35:  852 

383.  The  fact  that  property  is  purchased 
after  a  municipality  has  established  a  paper 
grade  line,  but  before  actual  physical  grad- 
iiiir  ;onf(irniing  a  street  to  that  line,  will 
not  preclude  the  purchaser  from  recovering 
for  (In mages  to  his  lot  by  the  change  of 
grade.  Id. 


384.  The  natural  surface  of  a  street  be- 
comes the  established  grade  within  the  rule 
as  to  consequential  damages  for  changing 
a  grade  line,  if  the  street  is  opened  and 
used  and  buildings  erected  thei-eon  with 
reference  to  such  natural  grade  line.  Id. 

385.  Damages  for  injuries  caused  to  an 
abutting  lot  by  being  left  8  or  10  feet  above 
the  street  by  change  of  grade  must  be  paid 
by  the  city  to  the  lot  owner  under  a  Consti- 
tution providing  compensation  for  property 
taken,  injured,  or  destroyed,  for  public  use. 
Henderson  v.  McClain,  102  Ky.  402,  43  S.  W. 
700,  39:  34» 

386.  The  whole  improvement  must  be  tak- 
en into  consideration  in  determining  wheth- 
er property  is  damaged  by  a  public  improve- 
ment, such  as  the  change  of  grade  of  a 
street.  Springer  v.  Chicago,  135  111.  552,  26 
N.  E.  514,  12:  609 

387.  A  change  of  grade  of  a  street,  which 
will  make  the  property  of  an  abutting  own- 
er less  valuable  to  sell  or  rent,  is  within  a 
constitutional  provision  that  no  private 
property  shall  be  taken  or  damaged  for 
public  or  private  use  without  just  compen- 
sation having  been  first  made  or  paid  into 
court  for  the  owner.  Brown  v.  Seattle.  5 
Wash.  .35,  31  Pac.  313,  32  Pac.  214,       18:  161 

388.  An  abutting  property  owner  is  not 
entitled  to  damages  for  the  elevation  of  a 
street  to  correspond  with  the  original  es- 
tablishment of  the  grade,  although  the  ef- 
fect is  to  destroy  access  to  the  street  from 
his  property.  Brand  v.  Multnomah  County, 
38  Or.  79,  60  Pac.  390,  62  Pac.  209,  50:  389 

389.  The  diversion  of  surface  water  from 
its  usual  course  of  flow  in  a  highway,  by  a 
change  of  grade,  does  not  give  a  right  of  ac- 
tion to  a  person  whose  premises  are  there- 
by damaged.  Champion  v.  Crandon,  84  Wis. 
405,  54  N.  W.  775,  19:  856 
Narrowing  or  injuring  street. 

390.  An  abutting  owner  is  entitled  to 
damages  for  the  diminution  of  the  value  of 
the  property  caused  by  reducing  the  width 
of  the  street,  or  by  excavations  rendering  it 
unsafe  and  dangerous,  in  constructing  a 
steam  railroad  therein.  White  v.  North- 
western N.  C.  R.  Co.  113  N.  C.  610,  18  S. 
E.  330,  22:  627 
Vacating  street. 

391.  A  constitutional  right  to  a  remedy 
for  injury  to  property  does  not  include  the 
right  to  recover  for  an  injury  not  different 
in  kind,  but  only  in  degree,  from  that  suf- 
fered by  the  community  in  general  from  the 
vacation  of  a  remote  part  of  a  street,  though 
it  causes  depreciation  in  the  value  of  prop- 
erty, but  leaves  ample  means  of  access 
thereto.  Dantzer  v.  Indianapolis  U.  R.  Co. 
141   Tnd.  604,  39  N.  E.  223,  34:  76* 


IV.  Additional   Servitude, 
a.  In  General;    On  Railroad  Way. 

As  to  Consequential  Injuries  by  Taking,  see 

supra,  III.  e. 
As   to   Necessity   of   ^Making  Compensation 

Oenerally.  see  supra,  III.  c,  1. 


EMINENT  DOMAIN,  IV.  b.  1. 


1161 


As  to  What  Constitutes  a  Taking,  see  supra, 

III.   b. 
For  Editorial  Notes,  see  infra,  V.  §  19. 

392.  A  lease  by  a  railroad  company  to 
other  companies  of  the  right  to  use  its 
tracks  for  terminal  purposes  does  not  impose 
an  additional  burden  upon  the  land  entitling 
the  owner  of  the  fee  to  further  compensa- 
tion. Miller  v.  Green  Bay,  W.  &  St.  P.  R. 
Co.  59  Minn.  169,  60  N.  W.  1006,       26:  443 

393.  Using  a  part  of  a  railroad  location, 
outside  of  the  space  occupied  by  tracks,  for 
the  abutments  and  approach  of  a  bridge  con- 
structed to  carry  an  existing  highway  over 
the  road  in  order  to  abolish  a  grade  cross- 
ing, is  not  the  imposition  of  a.  new  ease- 
ment in  the  railroad  right  of  way,  so  as  to 
bring  the  railroad  company  within  a  stat- 
ute providing  compensation  for  property 
taken  for  such  purposes;  and  it  is  imma- 
terial that  for  convenience  the  point  of 
crossing  is  moved  a  short  distance  from  its 
old  location.  Boston  &  A.  R.  Co.  v.  Wor- 
cester, 180  Mass.  71,  61  N.  E.  806,  55:  623 
Elevator. 

394.  The  maintenance  of  an  elevator  on  a 
public  wharf,  for  handling  grain  thereat,  is 
no  new  or  additional  servitude.  It  is  sim- 
ply a  new  method  of  using  the  wharf  for 
the  very  purpose  for  which  it  was  con- 
demned. Belcher's  Sugar  Ref.  Co.  v.  St. 
Louis  Grain  Elevator  Co.  101  Mo.  192,  13  S. 
W.  822,  8:  801 
Additional  railroad. 

395.  Building  another  railroad  on  a  por- 
tion of  the  unused  right  of  way  of  a  com- 
pany which  has  acquired  an  easement  only 
therein  creates  an  additional  servitude; 
and  the  consent  of  the  owner  of  the  land 
must  first  be  obtained  and  compensation 
made  to  him  for  the  damage.  Fort  Worth 
&  R.  G.  R.  Co.  v.  .Jennings,  76  Tex.  373,  13 
S.  W.  270,  8:  180 
Telegraph  and  telephone. 

For  Editorial  Notes,  see  infra,  V.  §  19. 

390.  The  construction  of  a  telegraph  and 
telephone  line  on  a  railroad  company's  right 
of  way  imposes  an  additional  servitude  or 
burden  on  the  land,  for*  which  the  owners 
are  entitled  to  compensation,  unless  it  is 
constructed  by  the  railroad  company  in 
good  faith  for  its  own  use  and  benefit  in 
the  operation  of  the  road  and  to  facilitate 
its  business,  or  is  reasonably  necessary  for 
that  purpose.  American  Teleph.  &  Teleg. 
Co.  V.  Smith.  71  Md.  535.  18  Atl.  910. 

,  7:200 
On  railroad  right  of  way  in  street. 
For  Editorial  Notes,  see  infra,  V.  §  19. 

397.  A  railway  company  owning  land 
abutting  on  a  highway,  including  the  fee 
therein,  is  entitled  to  protection  from  the 
imposition  of  additional  burdens  upon  the 
road  beyond  those  ioicident  to  its  use  as  a 
highway.  Western  R.  of  Ala.  v.  Alabama 
G.  T.  R.  Co.  96  Ala.  272,  11  So.  483,  17:  474  , 

398.  A  railroad  company  owning  the  fee 
of  the  street  at  the  point  where  the  street 
is  crossed  by  its  tracks  is  not  entitled  to 
compensation  as  for  an  additional  burden, 
upon    the    construction    of    street    railway 


tracks  along  the  street  under  permission 
from  the  city,  where  its  own  tracks  are  not 
injured.  Chicago,  B.  &  Q.  R.  Co.  v.  West 
Chicago  Street  R.  Co.  156  III.  255,  40  N. 
E.   1008,  29:  485- 

b.  On  Highway. 
1.  In  General. 

Additional  Burdens  on  Railroad  Right  of 
Way  in  Street,  see  supra,  397. 

As  Additional  Servitude  on  Highway,  see 
infra,  404-415. 

As  to  What  Constitutes  a  Taking,  see  su- 
pra, III.  b,  2. 

For  Editorial  Notes,  see  infra,  V.  §  19. 

399.  The  uses  of  streets  prevailing  at  the 
time  of  the  taking  or  dedication  of  a  street 
are  not  the  limits  of  the  uses  to  which  the 
public  is  entitled  and  which  the  soil  owner 
is  deemed  to  have  contemplated,  but  such 
uses  are  to  be  enlarged  to  include  all  of  the 
additional  and  improved  methods  of  attain- 
ing the  same  objects  and  enjoying  the  same 
privileges,  not,  however,  to  the  denial  or 
substantial  impairment  of  the  fee  owner's, 
use  and  enjoyment  of  his  abutting  property. 
Magec  V.  Overshiner,  150  Ind.  127,  49  N.  E. 
951,  40:  370 

400.  Erections  upon  a  public  street  im- 
pose no  additional  servitude  where  they  aid 
and  facilitate  its  use  for  the  purposes  of 
travel  and  transportation.  Chicago,  B.  & 
Q.  R.  Co.  V.  West  Chicago  Street  R.  Co.  156 
111.  255,  40  N.  E.   1008,  29:  485 

401.  Any  structure  on  a  street,  which  is 
subversive  of  and  repugnant  to  its  use  and 
efficiency  as  a  public  thoroughfare,  is  not 
a  legitimate  street  use,  and  imposes  a  new 
servitude  on  the  rights  of  abutting  owners, 
for  which  compensation  must  be  made. 
Willamette  Iron  Works  v.  Oregon  R.  &  Xav 
Co.  20  Or.  224,  37  Pac.   1016,  29:  88 

402.  A  change  of  a  county  road  to  a  city 
street  in  consequence  of  the  incorporation 
of  the  city  does  not  impose  an  additional 
servitude  upon  the  real  property  over  which 
the  highway  is  constructed,  so  as  to  require 
any  new  condemnation.  Huddleston  v. 
Eugene,  34  Or.  343,  55  Pac.  868,  43:  444 
Electric  light  poles. 

403.  Poles  for  electric  light  wires  are 
not  additional  burdens  upon  the  fee  of  a 
country  highway  in  a  town  which  has  grant- 
ed  the  right  to  maintain  the  wires  and  con- 
tracted for  lighting  the  streets  with  the 
electric  lights,  as  light  may  be  necessary 
for  the  safe  use  of  the  streets.  Palmer  v. 
Larch  mont  Elec.  Co.  158  N.  Y.  231,  52  N.  E. 
1092.  43:  672" 
Telegraphs  and  telephones. 

On  Railroad  Right  of  Way,  see  supra,  114. 

See  also  supra,  269;   infra,  416. 

For  Editorial  Notes,  see  infra,  V.  §  19. 

404.  A  telegraph  line  is  an  additional  bur- 
den on  the  fee  of  a  public  highway,  for 
which  compensation  must  be  made  to  the 
owner.  Postal  Teleg.  Cable  Co.  v.  Eaton, 
170  111.  513,  49  N.  E.  365,  ,39:  722 

405.  The  occupancy  of  city  streets  by 
telephone  poles  and  wiies  is  a  new  and  ad- 


1162 


EMINENT  DOMAIN.  IV.  b,  1. 


ditional  servitude  requiring  compensation 
for  the  damages  thereby  inflicted  upon 
abutting  owners.     Donovan  v.  AUert,  10  X. 

D.  289.  01  N.  W.  441,  58:775 
40r.    Telephone  poles  and  wires  constitute 

an  additional  burden  upon  a  street,  for 
which  compensation  must  be  made  to  the 
owners  of  the  land  as  a  condition  of  such 
use.  Krueger  v.  Wisconsin  Teleph.  Co.  106 
Wis.  96,  81  N.  W.  1041,  50:  298 

407.  Poles  and  wires  which  permanently 
and  exclusively  occupy  portions  of  a  public 
street  or  highway  constitute  an  additional 
burden  for  which' the  abutting  owjier  is  en- 
titled to  compensation  in  case  he  is  dam- 
aged thereby.  Bronson  v.  Albion  Teleph. 
€o.  67  Neb.' Ill,  93  N.  W.  201.  60:  426 
*  408.  The  erection  of  a  telegraph  line  upon 
a  highway  is  an  additional  servitude  for 
which  compensation  must  be  made  to  the 
owner  of  the  soil.  Western  U.  Teleg.  Co. 
V.  Williams,  86  Va.  696,  11  S.  E.  106,  8:  429 

409.  The  public  easement  in  a  rural  high- 
way of  which  the  fee  is  in  the  adjoining 
owner  does  not  include  the  permanent  and 
exclusive  appropriation  of  any  part  of  the 
highway  by  poles  and  wires  of  a  telegraph 
and  telephone  company.  Eels  v.  American 
Teleph.  &  Teleg.  Co.  143  N.  Y.  133.  38  N. 

E.  202.  25:  640 

410.  The  Virginia  act  of  February  10, 
1880.  authorizing  a  telegraph  company  to 
construct  a  line  along  county  roads,  provid- 
ed the  ordinary  use  of  the  road  is  not  ob- 
structed, does  "not  give  any  right  to  build 
such  line  without  compensation  to  the  own- 
er of  the  fee.  If  the  act  is  intended  to  give 
such  right,  it  is  in  violation  of  the  consti- 
tutional provision  against  taking  private 
property  without  just  compensation.  West- 
ern U. 'Teleg.  Co.  v.  Williams,  86  Va.  696, 
11  8.  E.  106.  8:  429 

411.  Compensation  for  the  erection  of  a 
telegraph  line  in  a  street  must  be  made  to 
abutting  owners,  although  the  fee  of  the 
street  is  in  the  public;  and  the  right  there- 
to cannot  be  defeated  by  action  of  the 
municipal  authorities.  Stowers  v.  Postal 
Teleg.  Cable  Co.  68  Miss.  559.  9  So.  356, 

12:  864 

412.  The  construction  and  maintenance  of 
a  telephone  line  upon  a  rural  highway  are 
not  an  additional  servitude  for  which  com- 
pensation must  be  made  to  the  owner  of 
the  land  over  which  the  highway  is  laid. 
McCann  v.  Johnson  County  Teleph.  Co.  69 
Kan.  210,  76  Pac.  870.  66:  171 

413.  Telegraph  poles  in  a  highway  do  not 
<'onstitute  an  additional  servitude  upon  the 
fe( .  for  which  owners  must  be  compensated. 
People  y.  Eaton.  100  Mich.  208,  59  X.  W. 
145.  24:  721 

414.  A  telephone  line  consisting  of  poles 
and  wires  along  a  country  highway,  which 
doe^  not  interfere  with  the  safety  and  con- 
venience of  ordinary  travel,  or  unreasonably 
or  materially  impair  the  special  easement  of 
an  abutting  owner,  does  not  impose  an  ad- 
<litiona1  sorvitiulo  upon  the  highway.  Cater 
v.  Xorthwpstern  Teleph.  Exfh.  Co.  GO  Minn. 
.5.30.  6.3  X.  W.  in,  28:  310 


415.  The  reasonable  use  of  the  streets  of 
a  city  for  the  equipment  of  a  telephone 
system,  including  poles  and  wires,  is  not  a 
new  and  additional  servitude  for  which  the 
abutting  property  owner  is  entitled  to  com- 
pensation. Magee  v.  Overshiner,  150  Ind. 
127,  49  N.  E.  951,  40:  370 
Subway, 

416.  The  occupation  of  a  sidewalk  with  a 
trench  and  pipes  for  a  conduit  for  tele- 
phone wires  is  not  an  additional  burden  up- 
on the  fee.  which  entitles  the  abutting  own- 
er to  compensation,  although  it  is  laid  so 
close  to  the  line  of  the  abutting  property 
as  to  interfere  with  intended  areas  under 
the  walk.  Cobum  y.  Xew  Telephone  Co. 
156  Ind.  90,  59  N.  E.  324,  52:  671 
Viaduct. 

417.  A  street  dedicated  to  the  public  for 
ordinary  purposes  cannot  be  appropriated 
for  the  construction  of  a  viaduct  which  com- 
pletely destroys  its  use  for  street  purposes, 
without  liabilitj'  for  damages  to  abutting 
owners.  Spencer  v.  ^Metropolitan  Street  R. 
Co.  120  Mo.  154.  23  S.  W.  126,  22:  668 

418.  The  building  of  a  viaduct  over  rail- 
road tracks  in  a  public  street,  which  practi- 
cally closes  abutting  property  to  access  by 
teams  from  the  street,  is  such  an  extraor- 
dinary and  unusual  use  of  the  street  as 
could  not  have  been  reasonably  anticipated 
at  the  time  of  its  dedication,  and  therefore 
the  abutting  owner  is  entitled  to  conse- 
quential damages,  under  the  Colorado  con- 
stitutional requirement  of  compensation  for 
property  damaged,  although  it  is  limited  by 
the  courts  of  that  state  to  unusual  or  ex- 
traordinary uses.  Peublo  v.  Strait,  20  Colo. 
13,  36  Pac.  789,  24:  392 
Gas  pipes. 

For  Editorial  Notes,  see  infra,  V.  §  19. 

419.  Pipes  for  the  transportation  of  nat- 
ural gas  cannot  be  laid  in  a  country  road 
without  making  compensation  to  the  owner 
of  the  fee,  although  the  right  to  do  so  has 
been  granted  by  the  board  of  county  com- 
missioners. Kincaid  v.  Indianapolis  Xatural 
Gas  Co.  124  Ind.  577,  24  N.  E.  1066,  8:  602 
Railroad  bridge. 

420.  The  construction  by  a  railroad  com- 
pany under  proper  authority,  of  a  bridge  to 
carry  its  tracks  diagonally  across  the  in- 
tersection of  two  streets,  covering  land  the 
fee  of  which  is  in  the  owner  of  a  corner 
lot,  imposes  an  additional  burden  upon  his 
property,  for  whirfh  he  is  intitled  to  dam- 
ages. Jones  V.  Erie  &  W.  V.  R.  Co.  151 
Pa.  30.  25  Atl.  134.  17:  758 
Approach  to  bridge. 

421.  .\  bridge  approach  will  not  constitute 
an  additional  servitude  upon  a  street,  where 
the  grade  of  the  street  is  established  by 
the  legislature  at  its  surface,  so  as  to  con- 
stitute a  taking  of  private  property  for 
which  compensation  must  be  made.  Brand 
v.  Multnomah  County.  38  Or.  79,  60  Pac. 
390.  62  Pac.  209,  50:  389 

422.  Damage  to  an  abutting  owner  by  an 
elevated  approach  to  a  bridge  across  rail- 
road tracks,  which  leaves  a  space  of  about 
TV-,  feet  between  the  structure  and  the 
sid'e  of  the  street   for  access  to  liis   prem- 


EMINENT  DOMAIN.  IV.  b.  2. 


1168 


iscs.  is  damnum  absque  injuria.  Home 
Bldg.  &  C.  Co.  V.  Roanoke.  91  Va.  52.  20  S. 
E.  805,  27:  551 

423.  Building  in  a  city  an  approach  to 
a,  bridge  over  railroad  tracks,  leaving  access 
to  abutting  owners,  is  not  an  additional 
servitude.  Id. 

424.  An  elevated  approach  to  a  public 
bridge  built  in  a  street  does  not  impose  any 
additional  servitude,  or  entitle  the  abut- 
ting owner  to  damages  for  the  consequent 
depreciation  in  the  value  of  his  property. 
Willis  v.  Winona,  59  Minn.  27,  60  N.  W. 
814.  26:  142 

42.').  The  fact  that  tolls  for  the  use  of  a 
bridge  are  charged  by  a  city  under  legisla- 
tive authority  does  not  make  the  iise  of  the 
street  for  an  elevated  approacfi  thereto  an 
additional   servitude.  Id. 

426.  A  solid  structure  30  feet  wide,  erected 
in  the  middle  of  a  street  66  feet  wide  and 
■curving  so  as  to  leave  on  one  side  a  pas- 
sageway only  8  feet  wide,  built  as  an  ap- 
proach to  a  toll  bridge  owned  by  a  pri- 
vate corporation,  not  forming  a  part  of 
or  extension  of  any  public  highway,  al- 
though authorized  by  the  legislature  and 
city  authorities,  can  lawfully  be  made  only 
on  payment  of  damages  to  the  abutting 
owner.  Willamette  Iron  Works  v.  Oregon 
K.  &  Xav.  Co.  26  Or.  224,  37  Pac.  1016. 

29:  88 

2.  Railways  of  Various   Kinds. 

For  l\(litorial  Notes,  see  infra,  V.  §  19. 

Steam  railroad. 

As  to  What  Constitutes  a  Taking,  see  su- 
pra. 234-236. 
Sec  al>=o  supra,  420,  422,  423. 
For  Fditorial  Notes,  see  infra,  V.  §  19. 

427.  A  railroad  for  transportation  of  pas- 
sengers and  freight  on  a  street  does  not 
impose  a  new  burden  or  servitude  upon  the 
owner  of  the  soil,  although  he  may  be  en- 
titled to  damages  for  injury  to  his  right 
of  access,  or  light  and  air.  Montgomery 
V.  Santa  Ana  &  W.  R.  Co.  104  Cal.  186,  37 
Pac.  786,  25:654 

428.  The  construction  and  operation  of  a 
sit'iiMi  railroad  along  a  .street  on  the  es- 
tablished grade,  under  proper  municipal  au- 
thority, does  not  constitute  such  an  appli- 
cation of  the  street  to  a  new  public  use  as 
rcijuircs  payment  of  compensation  for  dam- 
ages to  the  owner  of  abutting  lots.  Henry 
r;aus  &  Sons  Mfg.  Co.  v.  St.  Louis.  K.  &  N. 
W.  R.  Co.  113  Mo.  308,  20  S.  W.  65'8.  18:  339 
Ottawa.  O.  C.  &  C  G.  R.  Co.  v.  Lar.-^en.  40 
Kan.  301,  19  Pac.  661,  2:  59 

429.  The  use  of  a  street  for  a  steam  rail- 
road is  a  perversion  of  the  street  from  its 
original  and  proper  public  purpose.  White 
V.  Northwestern  N.  C.  R.  Co.  113  N.  C.  610, 
18  S.  E.  330,    '  22:  627 

430.  A  steam  railway  cannot  be  construct- 
ed along  a  public  highway,  in  the  absence 
of  compensation  to  abutting  owners,  where 
they  own  the  fee  in  the  street.  Western 
R.  of  Ala.  V.  Alabama  G.  T.  R.  Co.  96  Ala. 
272,   11  So.  483,  17:  474 


431.  A  charter  from  the  state,  and  a  con- 
tract with  a  city  and  county  authorizing 
the  construction  and  use  of  a  railway  in  a 
street,  cannot  authorize  such  use  without 
compensation  to  the  owner  of  the  fee.  East 
End  Street  R.  Co.  v.  Doyle,  88  Tenn.  747, 
13  S.  W.  936,  9:  100 

432.  A  railway  whose  cars  are  propelled 
by  a  dummy  steam  engine  and  used  for 
passengers  only  is  a  burden  or  servitude  on 
a  public  street  or  highway,  in  addition  to 
that  contemplated  in  the  original  dedication 
of  the  land  to  public  use,  for  which  the 
owners  of  the  fee  are  entitled  to  compensa- 
tion. Id. 

433.  On  the  question  whether  or  not  a 
raihvay  operated  by  a  steam  motor  in  a 
public  street  is  an  additional  burden  which 
an  abutting  owner  may  enjoin,  the  Michi- 
gan court  is  divided,  two  in  the  affirmative, 
two  in  the  negative,  and  one  holding  that 
it  is  not  settled.  But  it  holds  compensa- 
tion must  be  made  to  the  owner  of  the 
fee  before  a  railway  can  be  constructed 
along  a  highway  by  cutting  and  filling,  us- 
ing ties  and  T  rails,  and  leaving  a  ditch  on 
each  side  so  as  practically  to  block  iip  for 
ordinary  uses  the  portion  of  the  highway 
where  it  is  located.  Nichols  v.  Ann  Arbor 
&  Y.  Street  R.  Co.  87  Mich.  361.  40  N.  W. 
538,  16:  371 
New  side  track. 

434.  The  building,  by  a  railroad  company, 
of  a  side  track  in  a  street  along  and  upon 
which  it  has  a  right  of  way  and  has  a 
single  track  in  operation,  constitutes  no  ad- 
ditional burden  upon  property  abutting  up- 
on the  street,  for  which  damages  may  be 
recovered  by  its  owner,  where  the  statutes 
enabled  the  company  to  locate  its  tracks  up- 
on the  street  and  to  appropriate  a  right  of 
way  6  rods  wide,  and  it  gave  notice  that 
its  appropriation  would  be  made  "in  as  full 
and  ample  and  perfect  a  manner  as  may  be 
required"  for  railroad  purposes,  and  it  paid 
the  assessed  damages,  which  were  duly  ac- 
cepted. White  V.  Chicago.  St.  L.  &  P.  R. 
Co.  122  Ind.  317,  23  N.  E.  782,  7:  257 
Street  railway  generally. 

As  Additional  Burden  on  Railroad  Right  of 
Way  in  Street,  see  supra,  398. 

As  to  What  Constitutes  a  Taking,  see  su- 
pra, 239. 

For  Editorial  Notes,  see  infra,  V.  §  19. 

435.  A  street  railway  in  a  street  does  not 
create  an  additional  servitude.  People  ex 
rel.  Kunze  v.  Ft.  Wavne  &  E.  R.  Co.  92 
Mich.  522,  52  N.  W.  1010,  16:  752 

436.  A  passenger  street  railway  which 
takes  on  and  discharges  passengers  at  rea- 
sonable points,  if  so  constructed  and  oper- 
ated as  not  materially  to  interfere  with  the 
ordinary  modes  of  using  the  streets  for  pub- 
lic travel  or  with  private  rights,  is  not  an 
additional  burden  on  the  fee  of  the  land, 
whatever  may  be  the  motive  power  iised 
or  the  manner  in  which  it  is  built.  La 
Crosse  Citv  R.  Co.  v.  Higbee,  107  Wis.  389, 
83  N.  W.  701,  51 :  923 

437.  The  motive  power  which  moves  ye- 
liicles  on  a  street  does  not  determine  wheth- 
er or  not   an   additional  burden  is  imposed 


1164 


EMINENT  DOMAIN,  IV.  b,  2. 


upon  the  easement,  but  that  question  de- 
pends on  the  exclusiveness  and  permanency 
of  the  occupation  of  any  portion  of  the 
street.  Jaynes  v.  Omaha  Street  R.  Co.  53 
Neb.  63  L  74  N.  W.  67,  39:751 

438.  The  question  whether  a  new  method 
of  using  a  street  for  public  travel  results  in 
the  imposition  of  an  additional  burden 
upon  the  fee  must  be  determined  by  the  use 
which  such  method  makes  of  the  street, 
and  not  by  the  motive  power  which  it  em- 
ploys in  such  use.  Chicago,  B.  &  Q.  R.  Co. 
T.  West  Chicago  Street  R.  Co.  156  111.  255. 
40  N.  E.  1008,  29:  485 

439.  The  permission  to  a  street  railway 
company  to  lay  its  tracks  in  a  street  already 
appropriated  to  public  use  is  not  a  grant  of 
the  right  to  appropriate  an  additional  ease- 
ment in  the  soil  of  the  street,  but  the  con- 
struction of  such  road  is  merely  a  mode  of 
facilitating  existing  travel,  and  of  modify- 
ing or  changing  the  existing  public  use,  add- 
ing an  additional  mode  of  conveyance  to 
those  already  upon  the  street,  and  inflict- 
ing no  damage  upon  the  owner  of  the  fee 
of  the  street.  Id. 
Electric  railroads. 

440.  An  electric  street  railway  for  pas- 
sengers does  not  constitute  a  new  burden  or 
•servitude  upon  a  public  street  or  highway. 
Southern  R.  Co.  v.  Atlanta  R.  &  P.  Co.  Ill 
Ga.   679,   36   S.   E.   873,  51 :  125 

441.  The  use  of  electricity  for  propelling 
street  cars  does  not  impose  a  new  servitude 
upon  the  streets,  so  as  to  entitle  abutting 
lot  owners  to  additional  compensation. 
Koch  V.  North  Ave.  R.  Co.  75  Md.  222.  23 
Atl.  463,  15:  377 

442.  The  trolley  system  of  propelling 
street  cars,  as  at  present  used  for  the  trans- 
portation of  passengers  through  the  streets 
of  a  city,  is  within  the  public  easement 
over  urban  highways.  State  ex  rel.  Kennel- 
Iv  v.  .Tersev  City  (N.  J.  Sup.)  57  N.  J.  L. 
293,  30  Atl.  531,  26:  281 

443.  The  substitution  of  electric  motors 
with  the  trolley  system  for  horses  on  street 
railways  does  not  per  se  create  an  addi- 
tional easement.  State  ex  rel.  Roebling  v. 
Trenton  Pass.  R.  Co.  (N.  .J.  Err.  &  App.)  58 
N.  J.  L.  666,  34  Atl.  1090,  33:  129 

444.  A  conversion  of  an  existing  single- 
track  horse  car  railway  into  a  double-track 
electric  railway  under  legislative  and  munic- 
ipal authority  is  not  an  additional  servitude 
on  a  street  for  which  abutting  lot  owners 
are  entitled  to  compensation.  Reid  v.  Nor- 
folk City  R.  Co.  94  Va.  117,  26  S.  E.  428. 

36:  274 

445.  The  use  of  electricity  by  a  street 
railway  company  as  a  motive  power  will  not 
render  its  use  of  the  street  an  imposition  of 
an  ndrlitional  servitude  thereon,  which  will 
require  the  making  of  additional  compensa- 
tion therefor  to  the  owner  of  the  fee.  where 
it  does  not  appear  that  the  occupation  of 
the  street  is  any  more  exclusive  than  though 
the  road  was  operated  by  horse  power. 
Tajrgart  v.  Newport  Street*  R.  Co.  16  R.  I. 
66S.    m    Atl.    .326.  7:  205 

446.  A    supporting    trolley    wire   pole    for 


a  passenger  street  railway,  when  set  in  » 
street  in  front  of  the  sidewalk,  if  placed 
with  reasonable  regard  for  the  convenicnce- 
of  the  owner  of  the  fee  of  the  land  on  which 
it  is  located  and  so  as  not  materially  to  in- 
terfere with  access  to  his  lot  outside  the- 
street  line,  does  not  constitute  an  addition- 
al burden  on  the  fee  of  the  land.  La  Crosse 
City  R.  Co.  v.  Higbee,  107  Wis.  389.  83  N. 
W.  701,  51 :  923^ 

447.  An  electric  motor  street  railway 
built  upon  street  grade,  doing  no  special 
injury  to  the  fee,  is  not  an  imposition  of  a 
new  or  additional  servitude  upon  the  high- 
way for  which  the  owner  of  the  fee  is  en- 
titled to  compensation, — especially  when  the 
law  at  the  time  when  the  street  was  made 
authorized  the  use  of  electricity  by  street 
railways.  Birmingham  Traction  Co.  v.  Bir- 
mingham Ry.  &  Elec.  Co.  119  Ala.  137,  24 
So.  502,  43:  23? 

448.  The  operation  of  an  intenirban  rail- 
way by  electric  power  upon  T  rails  through, 
a  city  street  with  authority  to  carry  pas- 
sengers, baggage,  mail,  and  light  express 
matter,  running  no  more  than  two  cars  in 
a  train,  does  not  impose  an  additional 
servitude  upon  the  street,  or  give  abutting 
property  owners  a  right  to  additional  com- 
pensation therefor.  Mordhurst  v.  Fort 
Wayne  &  S.  W.  Traction  Co.  163  Ind.  268, 
71  N.  E.  642,  66:  105 

449.  Poles  for  a  trolley  railroad,  set  at 
stated  distances  on  either  side  of  tracks 
near  the  margin  of  a  street,  on  which  wires 
are  placed,  constitute  an  additional  burden 
upon  the  street.  Javnes  v.  Omaha  Street 
R.  Co.  53  Neb.  631,  74  N.  W.  67,         39:  751 

450.  An  electric  railway  in  a  village 
street,  which  forms  part  of  a  connecting- 
line  between  cities  for  transporting  mer- 
chandise, personal  baggage,  mail,  and  ex- 
press matter,  as  well  as  passengers,  consti- 
tutes an  additional  servitude  or  burden  up- 
on the  lands  of  abutting  owners  for  which 
they  nre  entitled  to  compensation.  Chicago 
&  N.  W.  R.  Co.  v.  Milwaukee,  R.  &  K.  E.  R. 
Co.  95  Wis.  561,  70  N.  W.  678,         37 :  856 

451.  An  electric  passenger  railroad  on  a 
country  highway  constitutes  an  additional 
burden,  and  cannot  be  built  without  the 
consent  of  the  abutting  owner  and  payment 
of  compensation.  Zehren  v.  Milwaukee 
Elec.  R.  &  L.  Co.  99  Wis.  83,  74  N.  W.  538, 

41 :  575 

452.  An  electric  railway  imposes  an  addi- 
tional servitude  on  the  land  over  which 
public 'roads  run  outside  of  municipal 
boundaries.  Pennsylvania  R.  Co.  v.  Mont- 
gomery County  Pass.  R.  Co.  167  Pa.  62.  31 
Atl.  408,  27:  766  . 

4.53.  Laying  an  electric  street  car  track 
on  a  turnpike  within  about  7  feet  of  a 
building  does  not  entitle  the  abutting  owner 
to  compensation,  although  it  prevents 
teams  from  standing  in  front  of  his  place 
of  l)usiness  as  they  have  formerlv  been 
able  to  do.  Ashland  &  C.  Street  R.'  Co.  v. 
Fa\ilkner.  106  Kv.  3.32,  45  S.  W.  2.35,  51  S. 
W.  S06.  '  43:  554 


EMINENT  DOMAIN,  V.  (Ed.  Notes.) 


1165 


IJlevated  railroads. 

As  to  What  Constitutes  a  Taking,  see  su- 
pra. 237,  238. 

4.)1.  Constructing  an  elevated  railroad  on 
pillars  in  a  public  street  is  not  a  new  servi- 
tude or  unlawful  use  of  the  street.  Doane 
V.  Lake  Street  Elev.  R.  Co.  165  111.  510. 
46  N.  E.  520.  36:  97 

Private  tramway. 

4'>o.  The  construction  of  a  private  tram- 
way for  an  exclusive  private  use  is  entire- 
ly beyond  the  servitude  imposed  by  law, 
«nd  can  no  more  be  made  on  that  portion 
of  an  owner's  land  occupied  by  a  public  road 
than  on  any  other  portion  of  his  estate. 
Hradlev  v.  Pharr,  45  La.  Ann^  426,  12  So. 
•4318,      '  "19:  647 


V.  Editorial  Notes. 

Measure   of  Damages  in.  see  Damages,  V. 
§§  17-19. 

a.  Right  to  take  property. 

I.  In  general;  who  may  exercise. 

^  I.  Generally. 

Principles  in  law  of.     13:  332.* 

<ronstitutional  restrictions  on  the  right. 
4:  786.^ 

Abuse  of  right.    4:  786.* 

Expediency  of  exercise  of  right,  a  legisla- 
tive question.  4:785;* 
7:  151.* 

One  exercise  of  the  right  does  not  extin- 
guish it.    4:  787.* 

Means  and  agencies  of  its  exercise.    4:  786.* 

AVhen  exercise  of  power  for  purposes  of  wa- 
ter supply  exhausted.  58: 
248. 

^  2.  Who  may  exercise. 

Delegation  or  right.  1:133;*  2:680;*  4: 
788.* 

Right  of  foreign  corporation  to  exercise. 
24:  327. 

For  purpose  of  water  supply.    58:  243. 

2.  For  what  purpose. 

^  3.  Generally. 

Jn  general;    what  public.     11:  285.* 

Xecessity  that  use  be  a  public  one.    2:  680;* 

4:  787.* 
Right  of  court  to  determine  whethel*  use  is 

public  or  private.    4:  788.* 
Effect  upon  court  of  legislative  declaration 

that  use  is  a  public  one. 

8:  58.* 
'Criterion   determining   character   of  use   as' 

public  or  private.    2:  681.* 
For  what  purposes  the  flowage  of  lands  may 

be  authorized  by  statute. 

14:  487. 
•§  4.  Private  road;     levee;    water    supply. 
Private  road.     16:  81. 

Outlet  for  communication  with  public. 

16:  82. 
Necessity  of  road.    16:  83. 


Exercise  of  eminent  domain  to  acquire 
rights  of  way  for  levees. 
58:  757. 

For  water  supply.     13:  332;*    58:  241. 

Discretion  as  to  necessity  of  exercise  of 
power  for  purposes  of  wa- 
ter supply.    58:  248, 

§  5.  Drainage  of  private  lands. 

Generally.     49:  781. 

Necessity  must  exist.     49:  782. 

What  is  a  public  purpose.    49:  783. 

Public  health.     49:  783. 

Reclamation  of  large  tracts.     49:  783. 

For  all  drainage  purposes.    49:  784. 

Other   purposes.     49:  786. 

Limited  public  sufficient.    49:  787. 

Presumption  as  to  public  character.  49: 
787. 

§  6.  Railroad  purposes. 

Railroads  as  public  improvements.  2:  681;* 
4:  785.* 

Relocation  of  railroad.    36:  510. 

For  railroad  sidings  to  private  establish- 
ments.    4:  791;*  20:  434. 

For  railroad  depot.    9:  z95.* 

Authority  of  railroad  company  to  take  lands 
for  its  corporate  use.  2: 
255.* 

3.  What  may  be  taken. 

§  7.  Generally. 

What  property  may  be  taken.    13:  432.* 

Vested  rights  subordinate  to  power  of.  7: 
766.* 

Acquisition  of  tide  lands  by  right  of.  66: 
897. 

Taking  of  earth  from  private  land,  when 
justified.     3:  832.* 

For  purposes  of  a  water  supply.     58:  244. 

For  purposes  of  sewer.    60:  198. 

§  8.  Property  already  devoted  to  public  or 
quasi-public  use. 

Generally.    7:  666.* 

Right  and  franchises  of  corporation,  gener- 
ally.    13:432.* 

Property  and  franchises  of  railroad  corpora- 
tion.   4:  785;*  7:  767.* 

Location  of  railroad;  what  suflBcient  to  ex- 
clude another  road.  4: 
791;*     12:220. 

Right  to  take  other  public  property  for  pur- 
poses of  water  supply. 
58:  246. 

4.  Rights  and  title  acquired. 

§  9.  Generally. 

Power  of  legislature  to  declare  what  estate 

shall   be   taken.     9:  295.* 
Restriction  of  right  taken  to  easement,  when 

that   sufficient.     9:  295.* 
Nature  of  interest  acquired  in  right  of  way 

for  railroad.    8:  180.* 
Ownership   of   fee    in    land   condemned   for 

highway.     8:  429.* 
Validity  of  sale  of  land  by  railroad.     25: 

139. 


1166 


EMINENT  DOMAIN,  V.  (Ed.  Notes.) 


Effect  of  condeumation  of  husband's  lands 
iipon  wife's  right  of  dow- 
er.    18:  79. 

Extent  of  title  or  rights  taken  for  purposes 
of  canal.     61:  836,  838. 

Extent  of  rights  acquired  for  purposes  of 
water  supply.     58:  248. 

b.  Procedure. 

§  10.  Generally. 

Procedure  in  condemning  property  for  water 
supply,  generally.    58:250. 

Proceedings  to  condemn  land  for  drain  or 
sewer.     60:  198. 

Removal  of  proceedings  in.     1:  65.* 

Abandonment  of  proceedings  for  acquisition 
of  water  supply.     58:  253. 

Practice  and  remedies  when  property  sub- 
ject to  lease.  21:219, 
222. 

First  and  last  days  in  computing  time. 
49:  238. 

Time  within  which  power  to  condemn  land 
and  water  rights  must  be 
exercised.     58:  258. 

Tinio  allowed  for  making  claim  for  dam- 
ages from  taking  property 
for  water  supply.    58:  259. 

§11.  Trial. 

Riglit  to  iurv.     2:  422.* 

New   trials.     2:  422.* 

Viewing  premises  by  jury.     12:  611.* 

§  12.  Notice. 

In  proceedings  to  acquire  water  supply. 
58:  253. 

To  occupant  only.     16:  186. 

To  tenants  and  reversioners.     21 :  222. 

Right  of  mortgagee  to  notice.  18:  115. 

Effect  of  failure  to  give  mortgagee  notice. 
18:  117. 

c.  Rights  and  remedies  of  owners  and  others. 

§  13.  Generally. 

Remedy  of  owner;   statutory.    5:  183.* 

Conclusiveness    of    statutory    remedy    when 

land    is   taken    for   public 

use.    5:  183.* 
Protection    of    private    rights;     remedy    in 

equit}'.     5:  661.* 
Rights  of  life  tenants,  reversioners,  and  re- 
maindermen.    21:219.221. 
I{ights  of  mortgagee.     12:  84.* 
§  14.  Rights  of  tenants  and  reversioners. 
C  on. -rail  V.     21:212. 
Kffoft    on   liability    for   rent.      17:276;     21: 

21 3.  222. 
Wlion  only  part  taken.     21:  214. 
Daiiinycs;     application   of.     21:215. 
Damages,   right  to   and   estimation   of.     21: 

217.    223. 
(irmnid  rents.     21:  221. 
Rights  of  tenant  receiving  proper  notice  to 

quit.     21:222. 
As    affected    by    diiratifm    i)f    tenancy.     21: 

Effect    on    the   lease.     21:  222. 
§  15.  Rights  of  mortgagee. 
As    l)et\veen     inortixasor      and      mortgagee. 
18:113. 


As  between  mortgagee  and  appropriator. 
18:  114. 

§  16.  What  constitutes  a  taking. 

See  also  infra,  V.  §  19. 

Injury  to  land  as  a  taking  for  public  use. 
1 :  298.* 

Injury  to  land  as  a  subject  of  damages. 
3:  248.* 

Taking  or  damaging  property  by  dischar- 
ging sewers  into  waters. 
48:  698. 

Removal  of  lateral  support  as  a  "taking"  of 
property.     68:  699. 

Liability  of  municipal  corporation  for  re- 
moval of  lateral  or  sub- 
jacent support  of  land. 
68:  700. 

Taxing  for  municipal  purposes  lands  which 
received  no  benefit  frona 
municipal  government  as 
a  taking  without  com- 
pensation.    27:  741. 

What  constitutes  a  "taking."     18:  166. 

Easements   of   light,    air,     and    access. 
18:  166. 

§  17.  What  lands  deemed  to  be  part  of  tract 
taken. 

Different  holdings.     57:  932. 

Property  in  city.     57:  936. 

Separated   by   highways,   railroads,    or 

other  property.     57:936. 
Separated  by  plat  lines.    57:938. 
Separating      and      severing     buildings. 

57:  941. 
Part  of  lot  or  lots  injured.    57:  943. 

Farm  lands  in  a  contiguous  body.    57 :  944. 

Farm  lands  .separated  by  highways,  rail- 
roads, canals,  or  other 
property.     57:  945. 

Lands  in  different  counties.     57:  948. 

§18.  Right  to  compensation. 

See  also  infra,  V.  §  19. 

As  to  Measure  and  Amount  of  Compensation 
see  Damages,  V.  >:§   17-19. 

Self-executing  effect  of  eonstitutional  pro- 
vision that  private  prop- 
erty shall  not  be  taken  or 
damaged  for  public  use 
without  compensation. 

10:  283. 

Right  of  tenant  of  property  to  compen- 
sation.     11:839;*    21:  217. 

Right  to  compensation  for  railroad  struc- 
ttires  placed  on  land  be- 
fore condemnation.    66:44. 

Right  to  compensation  for  ai)propriation  of 
land  for  drain  or  se.wer. 
60:  199. 

Right  to  acquire  water  supply  without  com- 
pensation.    58:  240. 

Prepayment  as  a  condition  of  acquisition  of 
a  water  supply.     58:  257. 

Who  entitled  to  compensation  in  proceed- 
ings to  acquire  water  sup- 
ply.    58:  256. 

Licensee's  right    to    compensation.      21:219. 


EMPANELING— ENCL'MBRANCES. 


1167 


d.  Additional  burdens. 

§  19.  Generally. 

As  to  Rights  of  Abutting  Owners  on  High- 
ways, Generally,  see  High 
ways,  VII.  §  4. 

Telegraph  line  along  railroad  right  of  way. 
7:  200.* 

What  use  of  a  street  or  highway  constitutes 
an  additional  burden, 
17:474. 

Railroads.     3:  175;*  8:  31;*    17:  474. 

Street  railways.  17:  477. 

Horse  railway.    4:  623.* 

The  New  York   rule.     17:478. 

Sewers  and  drains.   17:470.       *^ 

Water  and  gas  pipes.    17:  480. 

Telegraph  and  telephones  poles  and  wires. 
17:  480;    24: 721. 

Markets.     17 :  480. 

Miscellaneous  cases.     17:  481. 

Abutting  owner's  right  to  compensation 
for  taking  interest  in 
street.     7:  549.* 

Injuries  to  abutter's  easements  of  light,  air, 
and  access  by  vacating 
street,  changing  grade,  etc. 
14:  370. 

Injury  to  abutter's  easement  by  railroad  in 
.     street.    14:    381. 

Injury  to  abutting  owner  by  laying  street 
railway  near  side  of  street. 
43:  554. 
General  principles.     43:  554. 
Effect   of  title  to  bed   of  street.     43: 

555. 
Extent     of     right      to      compensation. 

43:556. 
Damages.     43 :  560. 
The  California  statute.     43:  560. 

Right  of  a  railroad  company  to  compensa- 
tion for  laying  street  rail- 
way across  railroad  track 
on  a  street  crossing. 
29:  485. 


EMPANELING. 
Of  Grand  Jury,  see  Grand  Jury,  III. 


EMPLOYEES. 


Bonds  for  Fidelity  of.  see  Bonds,  II.  b. 

Equal  Protection  and  Privileges  as  to,  see 
Constitutional  Law,  II.  a,  5,  c. 

Restricting    Right    of    Contract    with,    see 
Constitutional  Law,  IL  b,  4,  6,   (2). 

Rights,  Duties  and  Liabilities  of  Generally, 
sec  Master  and  Servant. 

Who  are.  see  ^fechanics'  Liens,  35;  Receiv- 
ers, 48. 

Editorial  Notes. 

Who  are,  within  meaning  of  statute  giving 
preferences.     18:  305. 


EMPLOYERS'  ASSOCIATION. 
Bo5'Cott  by,  see  Conspiracy,  57-59. 


EMPLOYERS'  LIABILITY. 

Notice  as  Prerequisite  to    Enforcement    of 

Liability,  see  Action  or  Suit,  33. 
Insurance  against,  see  Insurance,    777,    894, 

000-903.  1343-1354. 
Action  by  Injured  Employee  on  Employer's 

Indemnity  Policy,  see  Parties,  63. 
Statute  as  to.  see  Master  and  Servant,  53, 

54,  138,  152.  162.  100-192,  320,  350,  464- 

483;  Statutes.  200,  305. 
Contributory  Negligence  as  Defense  to,  see 

Master  and  Servant,  392. 


EMPLOYMENT  AGENCY. 

Discrimination  as  to,  see  Constitutional 
Law,  542. 

Limiting  Charges  by  Owner  of,  see  Consti- 
tutional Law,   1027. 

License  of,  see  License,  68. 

Partial  Tnvaliditv  of  Statutes  as  to,  see 
Statutes,  99,"  100. 


ENACTMENT. 


Of  Ordinance,    see    Municipal    Corporations. 

n.  c,  2. 
Of  Statute,  see  Statutes,  I. 


ENCROACHMENT. 


Single  Cause   of  Action   for    see   Action   or 

Suit,  06. 
In  Street,  see  Highways,  71-78. 
Of  Building  on  Highway,  see  Highways,  114. 

11.5,  125;  Nuisances,  77,  113. 

If.  by  reasoti  of  mistake  on  the  owners' 
part,  bviildings  are  erected  on  their  premises 
by  their  own  consent,  they  may  be  relieved 
from  the  encumbrances  thus  created,  where 
they  have  not  continued  for  twenty  years. 
Hodgkins  v.  Farrington,  150  Mass.  19.  22  N. 
E.  73,  5:  209 


ENCUMBRANCES. 


Consideration  of,  in  Estimating  Outlay  Re- 
quired by  Statute  •  for  Promoting 
Health,  see  Buildings,  2. 

Covenant  against,  see  Covenant,  17-24,  42, 
^0;  V.  §  4;  Damages,  116;  Evidence, 
1116;   Trial,  572. 

Parol  Evidence  as  to,  see  Evidence,  1079, 
1116. 

On  Insured  Property,  see  Insurance,  HI.  e, 
1.  6:  IX.  §§  30,  31. 


1168 


ENCYCLOPEDIA— ENLISTMENT. 


Conveyance    of    Property    Subject    to,    see 

Mortgage,  III.;  VIII.  §  11. 
Right  of  Grantee  Paying,  see  Vendor  and 

Purchaser,  50a. 
Right  to  Open  Highway  Over  Property  as, 

see  Vendor  and  Purchaser^  46. 

A  lien  or  encumbrance  on  land  would 
be  created  by  filing  a  map  of  a  proposed 
street  across  it,  by  virtue  of  a  statute  deny- 
ing compensation  for  any  buildings  subse- 
quently erected  thereon,  if  such  statute  were 
valid.  Forster  v.  Scott,  136  N.  Y.  577,  32 
N.  E.  976,  18:  543 


ENCYCLOPEDIA. 
CopjTight  of,  see  Copyright,  17,  32. 


ENDOWMENTS. 


Agreement  for,  in  Insurance  Policy,  flee  In- 
surance, 17,  18,  684,  718,  926. 


♦  •» 


ENEMY. 

Editorial  Notes. 
Consul  trading  with  enemy.    45:  588. 

♦  * » 

ENFORCEMENT. 
Of  Judgment,  see  Judgment,  VI.  a. 


ENGINE. 
Patent  on,  see  Patents,  11. 


ENGINEER, 


Conspiracy  of  against  Commerce,  see  con- 
spiracy, 165,  166. 


Conclusiveness  of  Certificate,  see  Contracts, 
728.  731. 

Delegation  of  Power  to  License,  see  Consti- 
tutional Law,  201. 

Equal  Protection  of,  see  Constitutional 
Law,  519. 

Exemption  of  Wages  of,  f^e  Exemptions,  35. 

As  Fellow  Servant,  see  Master  and  Servant, 
521,  558-560,  583,  588.  589, 


ENGLISH  LANGUAGE. 

Inability  to  Read,  as  Affecting  Negligence  in 
Going  on  Unsafe  Bridge,  see  Bridges,  30. 
Publication  in,  see  Publication,  3-10. 


ENGLISH  STATUTE. 

Repeal  of,  in  Tennessee,  see  Statutes,  573. 

■» » » 

ENGRAVER. 

An  engraver  who  takes  separate  con- 
tracts to  make  dies  from  photographs,  and 
to  print  pamphlets  containing  cuts  from 
them,  has  no  right  to  use  them  in  pamphlets 
for  advertising  his  own  business;  and  in 
case  he  does  so,  and  the  pamphlets  are  de- 
livered to  his  employer  by  mistake,  he  can 
compel  neither  their  return  nor  payment  for 
them.  Levveau  v.  Clements,  175  Mass.  376, 
56  N.  E.  735,  50:  397 

Editorial  Notes. 

Right  to  use  engraved  plates  without  the 
consent  of  the  party  who 
has  paid  for  making  them. 
50:  397. 


ENLISTMENT. 
In  Army,  see  Army  and  Navy, 


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